Avery et al v. City of Milwaukee et al

Filing 109

ORDER signed by Judge Rudolph T. Randa on 1/20/2015. 107 Plaintiffs' MOTION for Admission of Evidence/Amendment of Pretrial Report/Adjournment of Trial GRANTED to the extent that the trial is adjourned and DENIED in all other respects. 94 De fendants' Motions in Limine GRANTED-IN-PART and DENIED-IN-PART; 98 Plaintiffs' Motion in Limine #1 GRANTED-IN-PART and DENIED-IN-PART; 99 100 Plaintiffs' Motions in Limine #2 and #3 DENIED; 101 Plaintiffs' unopposed Motions in Limine #4-11 GRANTED. See Order for details. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM DAMON AVERY, et al.,
Plaintiffs,
-vs-

Case No. 11-C-408

CITY OF MILWAUKEE, et al.,
Defendants.
DECISION AND ORDER
The plaintiff, William Damon Avery, alleges that certain City of
Milwaukee police detectives framed him for the murder of Maryetta
Griffin. Avery was exonerated after spending six years in prison when
DNA testing excluded Avery and matched the profile of Walter E. Ellis, an
accused serial killer. For more background on this case, see the Court’s
Decision and Order granting-in-part and denying-in-part the defendants’
motion for summary judgment. --- F. Supp. 2d ----, 2014 WL 4100748 (E.D.
Wis. Aug. 18, 2014).
Now before the Court are several motions in limine. At the time
those motions were filed, the trial of this matter was scheduled to
commence on January 20, 2015. However, on January 7, Avery discovered
that one his expert witnesses, Deanna Lankford of Cellmark Forensics,

was scheduled for non-elective surgery on January 20 and would be unable
to attend Avery’s trial. Thus, Avery filed an expedited motion to admit
certain evidence at trial or to amend the pretrial report. The purpose of
this motion was to offer alternatives to account for Ms. Lankford’s absence
at trial. Avery’s proposals were not acceptable to the defendants, nor to the
Court. Therefore, the Court accepted Avery’s backup suggestion to adjourn
the trial (defendants did not oppose the request for an adjournment). The
motions in limine remain pending, and they are discussed herein.
Defendants’ motions
I.

Expert opinion or testimony by Dennis Waller
Avery proffered Dennis Waller as an expert on police practices. Rule

702 of the Federal Rules of Evidence requires the Court to perform a
“gatekeeping” function before admitting expert testimony in order to
ensure that such testimony “is not only relevant, but reliable.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). The Court must make
the following inquiries: first, the expert must be qualified by knowledge,
skill, experience, training, or education; second, the proposed expert
testimony must assist the trier of fact in determining a relevant fact at
issue in the case; third, the expert’s testimony must be based on sufficient
facts or data and reliable principles and methods; and fourth, the expert
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must have reliably applied the principles and methods to the facts of the
case. Lees v. Carthage College, 714 F.3d 516, 521-22 (7th Cir. 2013).
The defendants divide Waller’s testimony into eleven discrete pieces,
arguing that each piece is not based on specialized knowledge that would
assist the trier of fact. In so doing, the defendants sidestep the actual
import of Waller’s proposed testimony. Waller’s opinions focus on whether
the defendants’ conduct in their investigation of the Griffin homicide
deviated from proper investigative procedures, as well as the policies and
practices of the Milwaukee Police Department of inadequately conducting
homicide investigations and improperly using jailhouse informants. This
testimony,

based

on

Waller’s

specialized

knowledge

of

police

administration and police practices, will obviously assist the trier of fact in
resolving the claims in this case. Richman v. Sheahan, 415 F. Supp. 2d
929, 945 (N.D. Ill. 2006) (“There is no doubt that under Rules 702 and 704
an expert may testify about applicable professional standards and the
defendants’ performance in light of those standards”).
The defendants do not address any of the other Daubert factors. All
of them are satisfied in the instant case. Waller has a bachelor of science
degree in police administration from Michigan State University and a
master

of science

degree

in

public administration
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from

Florida

International University. His training and experience as an officer and
instructor is extensive. He has served as a consultant/expert witness
related to police policy, procedure and practice in more than 600 cases in
35 states and a variety of judicial venues over a 26 year period. Therefore,
he is qualified as an expert by his knowledge, skill, experience, training
and education. Moreover, Waller’s methodology is reliable and sound
because it is based on his specialized knowledge of law enforcement
procedures. Jimenez v. City of Chi., 732 F.3d 710, 721 (7th Cir. 2013);
Tomas v. Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (“An expert may
certainly rely on his experience in making conclusions, particularly in this
context where an expert is asked to opine about police behavior”).
Waller’s testimony is admissible.
II.

Evidence or argument regarding any claim by William
Damon Avery’s children for loss of society and
companionship
Avery’s children are named as plaintiffs in this case, but they are

currently unrepresented and are not actively pursuing their claims in this
case. Consequently, Avery agrees that he will not introduce evidence of his
children’s claims for lost society, companionship and care. However, this
does not preclude Avery from introducing evidence that relates to his
relationship with his children and how he was damaged by being
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incarcerated.
III.

Evidence or argument regarding any complaints of
misconduct or regarding any discipline of any defendant
officer
Avery agrees that he will not introduce evidence of unrelated

complaints or discipline of the defendants pursuant to Rule 404(b) or any
other evidentiary rule.
IV.

Testimony from Detective Ricky Burems and evidence or
argument regarding a complaint he made concerning certain
matters arising from the investigation of the Debra Maniece
homicide
Detective Ricky Burems filed a complaint in January 2007 with the

Milwaukee Fire and Police Commission concerning the manner in which
the

Milwaukee

Police

Department

was

conducting

investigations,

especially in relation to cold cases. Defendants argue that this evidence is
irrelevant. Clearly it isn’t. This is relevant information related to the
alleged pattern and practice of the Milwaukee Police Department in
conducting homicide investigations.
V.

The State of Wisconsin Claims Board’s Decision Pertaining to
Avery
Defendants move to bar any mention of the State of Wisconsin

Claims Board’s decision, after a hearing, which found that Avery provided
clear and convincing evidence that he was innocent of the crime for which
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he was convicted and did not, by his act or failure to act, contribute to his
conviction. Defendants do not make a hearsay objection, and as Avery
observes, Rule 803(8) specifically exempts hearsay documents identified as
public records or reports.
Instead, defendants argue that this evidence is irrelevant because it
does not implicate any of the individual defendants, and the issues resolved
by the Claims Board are not the same as those at issue in this lawsuit. As
Avery explains, defendants will likely attempt to argue that Avery may
actually be guilty of the Griffin homicide. This evidence counters that line
of argument.
Defendants also argue that even if the evidence is relevant, its
relevance is outweighed by the danger of unfair prejudice because the jury
would likely be “sensitive” to the Board’s determination and would give its
ruling improper weight. The jury will be properly instructed on the law,
making clear that the Board’s decision is simply another piece of evidence
to weigh when applying that law. The Court is not convinced that the
probative value of this evidence is outweighed by any danger of unfair
prejudice. Fed. R. Evid. 403.
VI.

The prefix “Ellis” from any bate stamp on documents offered
as exhibits at trial

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Avery agrees that he will not introduce exhibits containing the
prefix “Ellis.”
VII. Antron Kent’s deposition testimony
Defendants seek to preclude the use of Antron Kent’s deposition
testimony at trial. A deposition can be used in lieu of live testimony if the
Court finds (A) that the witness is dead; (B) that the witness is more than
100 miles from the place of hearing or trial or is outside the United States,
unless it appears that the witness’s absence was procured by the party
offering the deposition; (C) that the witness cannot attend or testify
because of age, illness, infirmity, or imprisonment; (D) that the party
offering the deposition could not procure the witness’s attendance by
subpoena; or (E) on motion and notice, that exceptional circumstances
make it desirable – in the interest of justice and with due regard to the
importance of live testimony in open court – to permit the deposition to be
used. Fed. R. Civ. P. 32(a)(4).
Kent is currently an inmate at Oakhill Correctional Facility in
Oregon Wisconsin, 89.2 miles from the federal courthouse in Milwaukee.
This eliminates part (B). Kent’s incarceration, standing alone, doesn’t
mean that he cannot testify. Ueland v. United States, 291 F.3d 993, 996
(7th Cir. 2002) (“Only if imprisonment makes the witness ‘unable’ to attend
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does subsection [](C) authorize the deposition’s use”). Defendants claim
there is no reason for Avery not to petition for a writ of habeas corpus ad
testificandum to secure Kent’s presence at trial. To the contrary, Kent
would, as he has in the past, invoke his Fifth Amendment privilege against
self-incrimination if called to testify at trial.
Therefore, the Court finds that there are exceptional circumstances
which justify the use of Kent’s deposition at trial. Rule 32(a)(4)(E).
Defendants emphasize the importance of live testimony because Kent’s
credibility is at issue. As the Court explained in its summary judgment
order, Avery alleges that the defendants used three jailhouse informants to
testify against Avery at his trial: Kent, Keith Randolph, and Jeffrey
Kimbrough. All three of them tell the same basic story: that they were
coached by the defendants to testify that Avery confessed to the Griffin
murder. Their credibility would seem to rise and fall together, so the Court
does not think it is important that they all offer live testimony.1
VIII. Testimony or evidence pertaining to Detective James
DeValkenaere as a defendant in another matter, specifically
Ott v. City of Milwaukee, et al.
Avery agrees not to make any reference to DeValkenaere’s status as

On December 15, the Court granted Avery’s motion to preserve Randolph’s
testimony by video deposition. Kimbrough will offer live testimony.
1

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a defendant in any other case. The Court agrees with Avery’s qualification
that he should be allowed to introduce evidence regarding DeValkenaere’s
conduct in other homicide investigations, including the investigation of the
Jessica Payne homicide, without referring to him having been sued in
relation to that investigation.
Plaintiff’s motions
I.

Barring reference to plaintiff’s prior arrests, warrants for his
arrest, convictions, and periods of incarceration
Defendants contest this motion only to the extent that Avery wants

to bar reference to his open warrants at the time he was being questioned
during the Griffin investigation. Avery argues that the fact he was held on
open warrants after he voluntarily went in for questioning is not relevant
to any issue in this case, and it would invite the jury to speculate about the
offenses underlying the warrants and how they would be resolved. On the
other hand, defendants argue that the jury should know about the open
warrants because those warrants provided justification to hold Avery after
the initial interview. Without justification, jury speculation might
undermine the credibility of the defendants.
The Court agrees that the jury should be allowed to hear evidence
that Avery was held on “open warrants.” The jury can and will be

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instructed that they must not speculate or guess about the offenses
underlying the warrants.
II.

Plaintiff’s child support obligations
Avery moves to preclude evidence that he owed and still owes child

support. Defendants argue that this evidence is relevant because a parent
who

fails

to

assume

parental

responsibility

suffers

less

of

a

“companionship” loss than one who takes full responsibility for their
children. The Court agrees that this evidence is relevant, and its relevance
is not outweighed by the danger of unfair prejudice. Avery can, of course,
counter this evidence by explaining why he was unable to meet his support
obligations.
III.

Certain hearsay exhibits as substantive evidence
Avery objects to the admission of police reports summarizing

interviews with third parties and notes contained in police memo books,
arguing that these documents are inadmissible hearsay. Police reports are
generally excluded as hearsay “‘except to the extent to which they
incorporate firsthand observations of the officer.’ This is because the
presumption of reliability that serves as the premise for the public-records
exception does not attach to third parties who themselves have no public
duty to report.” Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013)
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(discussing Fed. R. Evid. 803(8)). Assuming that an appropriate foundation
is laid, police memo books should similarly fall within the public records
exception, if not the exception set forth in Rule 803(6) (Records of a
Regularly

Conducted

Activity).

Regarding

third-party

statements,

defendants are not offering those statements to prove the truth of the
matter asserted. Fed. R. Evid. 801. Instead, the statements are offered to
prove that they were made to certain police detectives, illustrating how and
why the Avery investigation began and progressed. United States v.
Lazcano, 881 F.2d 402, 407 (7th Cir. 1989) (“an out of court statement is
not hearsay if it is offered for the limited purpose of explaining why a
government investigation was undertaken”).
IV.

Unopposed motions
The plaintiff filed eight additional motions, numbered 4-11, all of

which are unopposed. They are granted as follows:
Number four: barring all non-party witnesses from the trial.
Number five: barring any reference to plaintiff’s counsel as being
from “out-of-town.”
Number six: barring any reference to plaintiff’s prior counsel.
Number seven: barring any reference to plaintiff or any witnesses
being affiliated with a gang.
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Number eight: barring any reference to jurors as taxpayers or
taxpayers footing the bill.
Number nine: barring any reference to defendants’ commendations
and awards.
Number ten: barring any reference to police officer being a
dangerous job.
Number eleven: barring any reference to any alleged results,
findings or conclusions regarding plaintiff taking a polygraph examination
in 1998, including that plaintiff voluntarily submitted to the polygraph
examination. Accordingly, the testimony of polygrapher Robert Simons is
barred, and Simons’ polygraph report may not be used as an exhibit.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.

Avery’s motion to adjourn the trial [ECF No. 107] is

GRANTED. In all other respects, this motion is DENIED;
2.

Defendants’ motions in limine [ECF No. 94] are GRANTED-

IN-PART and DENIED-IN-PART;
3.

Plaintiff’s motion in limine number one [ECF No. 98] is

GRANTED-IN-PART and DENIED-IN-PART;
4.

Plaintiff’s motion in limine number two [ECF No. 99] is
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DENIED;
5.

Plaintiff’s motion in limine number three [ECF No. 100] is

DENIED;
6.

Plaintiffs’ unopposed motions in limine Nos. 4-11 [ECF No.

101] are GRANTED.
Dated at Milwaukee, Wisconsin, this 20th day of January, 2015.

BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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