Rivera v. Guevara

JACQUES RIVERA, Plaintiff, v. REYNALDO GUEVARA, et al., Defendants.

No. 12 C 4428

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

June 26, 2018

Hon. Joan B. Gottschall, District Judge

Hon. Mary M. Rowland, Magistrate Judge

JURY TRIAL DEMANDED

PLAINTIFF'S RULE 50 MOTION FOR JUDGMENT AS A MATTER OF LAW

Plaintiff, JACQUES RIVERA, by his attorneys, moves this Court for the entry of an order pursuant to Federal Rule of Civil Procedure 50 for judgment as a matter of law in his favor. In support of this motion, Plaintiff states:

INTRODUCTION

Plaintiff brought a due process claim against defendants Guevara, Gawrys, McLaughlin, and Mingey for concealing exculpatory evidence or fabricating evidence against him in violation of Brady v. Maryland, 373 U.S. 83 (1963). Plaintiff has presented unrebutted evidence that Defendants violated his right to due process by concealing exculpatory evidence. Defendants have presented no evidence to support a defense to this claim. Plaintiff is therefore entitled to judgment as a matter of law in his favor on this claim.

A court should enter judgment under Rule 50 when the moving party has presented sufficient evidence such that, as a matter of law, a jury should find in his favor. FED. R. CIV. P. 50(a). A court should enter judgment for Plaintiff under Rule 50 if a reasonable jury, when viewing all the evidence and drawing all reasonable inferences in Defendants' favor, could not find for Defendants. Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011). Put differently, judgment under Rule 50 is appropriate here if Defendants have not presented sufficient evidence upon which a reasonable jury could find in their favor. James v. Milwaukee County, 956 F.2d 696, 698 (7th Cir. 1992).

A claim under Brady is an independent ground for a jury to find a due process violation; therefore it is appropriate for disposition under Rule 50. See Fields v. City of Chicago, No. 10 C 1168, 2015 WL 13578989, at *3 (N.D. Ill. Apr. 7, 2015) (Brady claim is discrete ground for Rule 50 motion); Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010) (same); Burgess v. Baltimore Police Dep't, 300 F. Supp. 3d 696, 706 (D. Md. 2018) (same).

ARGUMENT

I. A Reasonable Jury Could Only Find that Defendants Violated His Right to Due Process

Plaintiff contends that defendants Guevara, Gawrys, McLaughlin, and Mingey violated his constitutional right to due process of law by suppressing exculpatory and impeaching evidence. To succeed on this claim, Plaintiff must show that (a) Defendants concealed exculpatory or impeachment evidence; (b) that the evidence was material; and (c) that he was damaged as a result. See Manson v. Brathwaite, 432 U.S. 98 (1977); Lee v. Foster, 750 F.3d 687 (7th Cir. 2014); Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir. 2011); Carvajal v. Dominguez, 542 F.3d 561, 566-67 (7th Cir. 2008); Alexander v. City of South Bend, 433 F.3d 550 (7th Cir. 2006). Plaintiff has introduced unrebutted evidence satisfying each of these elements.

In order to show that suppressed evidence is material, Plaintiff "must show only that the new evidence is sufficient to 'undermine confidence' in the verdict." Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (citing Smith v. Cain, 132 S. Ct. 627, 629-31 (2012)); see also Kyles v.Whitley, 514 U.S. 419, 434 (1995). Accordingly, whether evidence is material depends on the strength of the evidence presented in the criminal case against the defendant—where a criminal case is weak, it is more likely that suppressed evidence would be considered material. United States v. Agurs, 427 U.S. 97, 113 (1976). Importantly, evidence that would impeach a key eyewitness is indisputably material, according to the Supreme Court and the Seventh Circuit. Giglio v. United States, 405 U.S. 150, 153-54 (1972); see also Smith, 565 U.S. at 75 (impeachment evidence regarding eyewitness material when eyewitness was the only evidence connecting defendant to the crime); Fields v. Wharrie, 672 F.3d 505, 517 (7th Cir. 2012) ("The constitutional violation occurs when the means by which the testimony was acquired are not disclosed at trial—or when other information that impeach the testimony's reliability are not shared with the defense."); Newsome v. McCabe, 319 F.3d 301, 302-05 (7th Cir. 2003) (holding that "the details about how [the police] induced the witnesses to finger Newsome" was "information vital to probe whether manipulation occurred"). In addition, in assessing materiality, the withheld evidence must be considered cumulatively, not just in isolation. Kyles, 514 U.S. at 421-22; Crivens v. Roth, 172 F.3d 991, 996 (7th Cir. 1999).

a. Plaintiff has presented unrebutted evidence that "material" information that would have tipped the scale in favor of innocence was withheld.

As a threshold matter, Plaintiff has presented unrebutted evidence that the criminal case against him was exceedingly thin. Numerous witnesses testified that this was a "single-finger identification" case, and that no other evidence, apart from the testimony of Defendant Guevara, tied Plaintiff to the Valentin murder. Plaintiff's criminal defense attorney, Kenneth Wadas, the felony-review prosecutor, Julie Rosner, and the trial prosecutor in Plaintiff's criminal case, Larry Victorson, testified—without any evidence offered to the contrary—that because the criminal case against Plaintiff was a thin case, any piece of evidence that could have been used to showPlaintiff's innocence, or impeach witnesses Orlando Lopez or Guevara, would tip the scale in favor of Plaintiff's innocence, and in favor of dropping the case or acquitting the defendant.

b. Plaintiff presented unrebutted evidence that Defendants suppressed exculpatory information that had been recorded in documents and exculpatory information that was not recorded at all.

Plaintiff presented significant evidence that Defendants suppressed a host of exculpatory and impeachment information. The suppressed evidence included both information that was memorialized in police reports, which did not get turned over to state prosecutors and to Plaintiff and his criminal defense attorney, and investigative information that was never memorialized at all.

Suppressed Exculpatory Evidence Recorded onPolice Reports That Were Not Turned Over to Wadas

Plaintiff presented a host of unrebutted evidence that Defendants had recorded exculpatory information that was never turned over to Plaintiff. First, Plaintiff has presented unrebutted evidence that exculpatory information was never produced to Wadas. (PX268.) As this Court observed during the jury instruction conference on June 26, 2018, it is unrebutted that Victorson turned over everything in his possession to Plaintiff's attorney, Ken Wadas. And Wadas testified that he kept his complete file in its original condition. Defendants presented no evidence suggesting that there were any documents that were turned over to Wadas that did not appear in his file, or that there is any difference between the contents of his file at the time he represented Plaintiff and the contents of the file as it appears today, or that there were any documents turned over to the prosecutors that Wadas did not receive. (PX47.)

The issue, then, is simply whether Wadas had the material in the Valentin investigative file. The unrebutted evidence is that the following documents were missing from his criminal defense file: (1) a rap sheet stamped August 27, 1988, establishing that he was Defendants'suspect before any witness had identified him (PX43A); (2) a general progress report documenting that Lopez initially told McLaughlin that he was by the store, which was 191 feet away from the shooting (PX12); (3) two general progress reports (one from August 27, and one from August 27 or 28) listed in the file inventory but not contained in the investigative file and never disclosed to Wadas or to Plaintiff in this litigation; (4) a version of the general offense case report without Orlando Lopez's name on it (PX19 at 43-44); (5) arrest, hold, and release reports from August 30 and August 31, 1988 for Jacques Rivera and Jose Rodriguez, an alternate suspect that the documents say was going to be charged for the Valentin murder (PX59); (6) a general progress report from August 31 reporting people in the first lineup viewed by Lopez (PX64); and an investigative file inventory listing all the documents above that Plaintiff and Wadas did not receive, and which shows that Defendants had manipulated dates in their recordkeeping (PX19 at 2-3).

Given Wadas and Victorson's testimony that any additional evidence in Plaintiff's favor would have tipped the scale in his favor, based on each of these documents independently, a reasonable jury could only conclude that Defendants concealed material evidence that caused harm to Plaintiff. Taken cumulatively, as they must be, Kyles, 514 U.S. at 421-22; Crivens, 172 F.3d at 996, the unrebutted evidence of records withheld from Wadas compel a finding of materiality.

Exculpatory Information That Was Never Recorded At All

In addition to police files that were suppressed, Plaintiff also presented unrebutted evidence that Defendants suppressed exculpatory information that they never memorialized at all. Some of this suppressed evidence was revealed for the first time at trial. Defendants offered zero evidence that any of this evidence was ever turned over previously.

First, Gawrys testified that he obtained an "unreliable" identification of Plaintiff from the victim Felix Valentin, but falsely reported that the victim had identified Plaintiff in his and Guevara's September 16 report. Guevara and Mingey asserted their Fifth Amendment right not to incriminate themselves on this subject. Defendants did not offer any evidence that Defendant Gawrys was lying at trial or had remembered events incorrectly. Accordingly, it is unrebutted that Defendants falsely reported that the victim identified Plaintiff. Though the victim's...