IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACQUES RIVERA, ) 

 ) Case No. 12 C 4428 

Plaintiff, ) 

 ) Hon. Joan B. Gottschall, 

v. ) District Judge 

 ) 

REYNALDO GUEVARA, et al., ) 

 ) 

Defendants. ) 

PLAINTIFF’S RESPONSE TO DEFENDANTS’ POST-TRIAL MOTION 

Arthur Loevy Locke E. Bowman 

Jon Loevy David Shapiro 

Anand Swaminathan Alexa Van Brunt 

Steven Art RODERICK MACARTHUR JUSTICE CENTER 

Rachel Brady Northwestern University School of Law 

Sean Starr 375 E. Chicago Avenue 

LOEVY & LOEVY Chicago, Illinois 60611 

311 N. Aberdeen St., Third Floor (312) 503-0844 

Chicago, IL 60607 

(312) 243-5900 

jon@loevy.com 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 1 of 157 PageID #:40481
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ........................................................................................................v

INTRODUCTION..........................................................................................................................1

I. SUMMARY OF RELEVANT FACTS ............................................................................1

A. The Valentin Shooting ...................................................................................................1 

B. The Initial Interview of Orlando Lopez .........................................................................1 

C. Defendants Guevara, Gawrys, and Mingey Investigate the Crime ................................2 

D. Rivera’s Photo Is Shown to Lopez.................................................................................2 

E. The First Lineup .............................................................................................................4 

F. Identifications By Valentin and Defendants False Reports ...........................................5 

G. The Second Lineup ........................................................................................................6 

H. The Purported Exclusion of Rodriguez..........................................................................7 

I. Rivera’s Criminal Trial ..................................................................................................7 

J. Rivera’s Exoneration, Certificate of Innocence, and Civil Suit .....................................9 

II. DEFENDANTS HAVE FORFEITED MANY OF THEIR ARGUMENTS .................9

A. Most of Defendants’ Rule 50(b) Arguments Are Forfeited Because They Were 

Not Included In Their Respective Rule 50(a) Motions ................................................10 

B. All Arguments Relating to the 9/16 Report Are Forfeited ..........................................11 

C. Other Arguments Not Raised By Defendants Are Forfeited .......................................11 

III. DEFENDANTS’ RULE 50(B) CHALLENGES LACK MERIT .................................12

A. The Evidence Supports the Verdict on Rivera’s Due Process Claims Against the 

Individual Defendants ..................................................................................................13 

1. Legal Standard .........................................................................................................13 

2. The Record Amply Supports the Due Process Verdicts ..........................................14 

a. The August 27 Photo Show Up with Orlando Lopez .........................................14 

 b. Valentin’s Identification of Rodriguez ...............................................................19 

 c. The First Lineup .................................................................................................20 

 d. Lopez Tells Guevara That Rivera Is the Wrong Guy .........................................23 

 e. The 9/16 Report ..................................................................................................25 

 f. Suppressed Investigative Files ............................................................................29 

3. None of the Individual Defendants Can Escape Liability .......................................31 

B. The City’s Argument That the Suppressed Investigative Files Were Insufficient 

 to Prove A Due Process Violation Similarly Lacks Merit ...........................................34 

1. The City Has Forfeited Any Argument About Investigative Files ..........................34 

2. The Suppressed Files Were Exculpatory .................................................................35 

3. Wadas Could Not Have Discovered the Files By Asking Harder ...........................36 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 2 of 157 PageID #:40482
ii 

TABLE OF CONTENTS (Cont.) 

C. Defendants’ Arguments That There Is Insufficient Evidence to Support Plaintiff’s 

Other Claims Lack Merit .............................................................................................37 

D. Guevara Is Not Entitled to Qualified Immunity ..........................................................39 

E. The Jury’s Verdict for McLaughlin Does Not Create An Inconsistent Verdict ..........40 

1. Defendants Failed to Properly Raise These Arguments ..........................................40 

2. The Jury’s Verdicts Are Not Inconsistent ................................................................41 

IV. THE INDIVIDUAL DEFENDANTS’ RULE 59 MOTION HAS NO MERIT ..........42

A. The Court Did Not Abuse Its Discretion When It Permitted Rivera to Call 

Defendants As Witnesses, Notwithstanding Their Intention to Assert Fifth 

Amendment Privileges .................................................................................................43 

1. The Law Does Not Allow A New Trial On This Basis ...........................................43 

2. This Court Did Not Abuse Its Discretion By Permitting Rivera to Call 

Guevara and Mingey to the Witness Stand ..................................................................44 

3. Other Courts Have Taken the Same Approach As This Court ................................47 

a. Courts in the Northern District ..........................................................................47 

 b. Courts Around the Country Have Required Defendants Asserting the 

 Fifth to Take the Stand ...........................................................................................48 

B. The Objections That Defendants Did Make During the Guevara and Mingey 

 Examinations Were Properly Overruled ......................................................................49 

1. Defendants Misstate the Legal Standard Governing What Foundation Is 

Necessary Before Questions Are Asked At Trial ........................................................49 

2. Defendants’ Objections That Rivera Had No Foundation For His Questions 

About the Valentin Investigation Lacked Merit ..........................................................50 

3. Defendants’ Objections That Rivera Had No Foundation For His Questions 

About Other Acts Lacked Merit ..................................................................................52 

C. Defendants Failed to Raise Many of Their Objections About the Guevara and 

 Mingey Examinations, and They Cannot Satisfy the Plain Error Standard .................55 

D. Defendants’ Other Arguments Relating to the Fifth Amendment Lack Merit ............56 

1. Rivera Did Not Misstate Fifth Amendment Law .....................................................56 

2. Questions About An Investigation Into Guevara Were Proper ...............................58 

3. Rivera’s Extremely Brief and Accidental Display of Part of Gawrys’s 

Deposition Transcript Does Not Warrant A New Trial, As This Court Has 

Already Concluded ......................................................................................................60 

4. Gawrys Was Not Unfairly Prejudiced by His Co-Defendants’ Assertions 

of the Fifth Amendment ...............................................................................................63 

E. The Court Properly Exercised Its Discretion When It Excluded After-Acquired 

 Evidence Concerning Felipe Nieves ............................................................................65 

F. The Court Did Not Err When It Permitted Cross-Examination of Wixted ..................68 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 3 of 157 PageID #:40483
iii 

TABLE OF CONTENTS (Cont.) 

G. The Court Properly Exercised Its Discretion In Limiting the Cumulative 

 Opinion Testimony of Wasilewski ..............................................................................73 

H. The Verdict Was Not Against the Manifest Weight of the Evidence ..........................77 

V. THE CITY’S CHALLENGES TO THE MONELL VERDICT FAIL ........................78

A. The City Forfeited Many of Its Arguments for Judgment or A New Trial ..................78 

B. Street Files Monell Theory ...........................................................................................79 

1. Summary of the Factual Record Related to Street Files Monell Claim ...................79 

2. Street Files Monell Theories Not Challenges in Any of Defendants’ Post-Trial 

Motions are Forfeited and Independently Support Liability ........................................85 

3. Street Files Challenges Included in the City’s Rule 50(a) 

and Rule 50(b) Motions ...............................................................................................87 

a. The Failure to Allege A Due Process Violation 

by Any Individual Defendant ...........................................................................87

 b. Express Policy Theory .......................................................................................91 

 c. Widespread Practice Theory ..............................................................................96 

 d. Failure to Train................................................................................................102 

 4. Street Files Challenges Included Only in the City’s Rule 59(a) Motion ...............104 

a. Argument that Special Order 86-3 Was Good Policy ......................................105 

 b. City’s Evidentiary Challenge to Ruling Allowing Questioning of Defendant 

Mingey Falls ........................................................................................................106

C. Filler Lineup Monell Theory .....................................................................................110 

 1. Summary of the Factual Record Related to Filler Lineup Monell Claim ..............110 

 2. Filler Lineup Monell Theory Was Presented to the Jury .......................................112 

 3. Filler Lineup Challenges Included in the City’s Rule 50(a) 

and Rule 50(b) Motions .............................................................................................114 

a. Forfeited Arguments ....................................................................................114

b. Express Policy ..............................................................................................115

c. Widespread Practices ..................................................................................115

d. Causation .....................................................................................................117 

 4. Filler Lineup Challenges Included Only in the City’s Rule 59(a) Motion ..........118 

VI. THE CITY’S CHALLENGES TO JURY INSTRUCTIONS FAIL .........................119

A. The Court Properly Exercised Its Discretion to Reject the City’s Additional Limiting 

Instruction Regarding “Speculative Evidence” .........................................................119 

B. The Court Properly Exercised Its Discretion to Reject the City’s Additional 

Instruction Regarding Invocation of the Fifth Amendment .......................................121 

C. The Jury Was Correctly Instructed on Municipal Liability .......................................122 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 4 of 157 PageID #:40484
iv 

TABLE OF CONTENTS (Cont.) 

D. The City’s Sufficiency Arguments Repeated As Jury Instruction Arguments Should 

Be Rejected for the Reasons Discussed Already .......................................................124 

VII. ARGUMENTS ABOUT COUNSEL’S PURPORTED “MISCONDUCT” FAIL ...124

A. Questioning and Arguments About ASA Rosner’s Hair ...........................................126 

B. Discussion of the Defense Case During Closing .......................................................127 

C. Defense Counsel’s Preamble Before Questioning Lopez ..........................................129 

D. Cross-Examination of Jeffrey Noble .........................................................................130 

VIII. DEFENDANTS’ “CUMULATIVE ERROR” POSITION FAILS ...........................132

CONCLUSION ..........................................................................................................................133

APPENDIX A—EXHIBIT LIST TO PLAINTIFF’S RESPONSE .................................. App-1 

APPENDIX B—TABLE OF CONTENTS TO TRANSCRIPT ....................................... App-4 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 5 of 157 PageID #:40485
v 

TABLE OF AUTHORITIES

Cases Page(s) 

Allen v. CTA, 317 F.3d 696 (7th Cir.2003) ....................................................................................16

Arlin-Golf v. Arlington Heights, 631 F.3d 818 (7th Cir. 2011) .....................................................11 

Armstrong v. Daily, 786 F.3d 529 (7th Cir. 2015) .........................................................................36 

Avery v. Milwaukee, 847 F.3d 433 (7th Cir. 2017) .....................................................13, 18, 22, 26 

Battle v. City of Reading, 1991 WL 208899 (E.D. Pa. Oct. 8, 1991) ..........................................49 

Baxter v. Palmigiano, 425 U.S. 308 (1976) .......................................................................44, 46, 47 

Berry v. Deloney, 28 F.3d 604 (7th Cir. 1994) ..............................................................................63

Board of County Commissioners v. Brown, 520 U.S. 397 (1997) .................................................85

Bogan v. Chicago, 644 F.3d 563 (7th Cir. 2011) ...........................................................................12 

Bonds v. City of Chicago, 2018 WL 1316720 (N.D. Ill. Mar. 14, 2018) .......................................89

Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988) .......................................................................22 

Bronston v. United States, 409 U.S. 352 (1973) ......................................................................70, 72

Byrd v. Blue Ridge Rural Elec., 356 U.S. 525 (1958) ...........................................................77, 105 

Cage v. City of Chicago, 2010 WL 3613981 (N.D. Ill. Sept. 8, 2010) ..........................................89

Calhoun v. Ramsey, 408 F.3d 375 (7th Cir. 2005) ........................................................................93 

Canton v. Harris, 489 U.S. 378 (1989)..................................................................................97, 116

Carter v. Chicago Police Officers, 165 F.3d 1071 (7th Cir. 1998) .........................................40, 96 

City of Los Angeles v. Heller, 475 U.S. 706 (1986).......................................................................89

Chlopek v. Federal Ins. Co., 499 F.3d 692 (7th Cir. 2007) ...........................................................63

Christmas v. City of Chicago, 682 F.3d 632 (7th Cir. 2012) .................................................43, 132 

Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014) .................................................50 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 6 of 157 PageID #:40486
vi 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

Cruz v. Cicero, 275 F.3d 579 (7th Cir. 2001) ..........................................................................13, 42 

Daniel v. Cook Cty., 833 F.3d 728 (7th Cir. 2016) ................................................................97, 116

Daniels v. Pipefitters’ Ass’n Local Union No. 597, 983 F.2d 800 (7th Cir. 1993)........................64 

Davis v. Carter, 452 F.3d 686 (7th Cir. 2006) .........................................................................96, 97

Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984) ...................................70, 72 

Deloughery v. City of Chicago, 422 F.3d 611 (7th Cir. 2005) ......................................................41 

DeRance, Inc. v. PaineWebber Inc., 872 F.2d 1312 (7th Cir. 1989) ...........................................126 

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ..............................................................16, 31, 36 

Dixon v. Cook Cty, 819 F.3d 343 (7th Cir. 2016) ..........................................................................97 

Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000) ...........................................46 

Dominguez v. Hendley, 545 F.3d 585 (7th Cir. 2008) ...................................................................13 

Emmel v. Coca-Cola, 95 F.3d 627 (7th Cir. 1996) ........................................................................15 

Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 

831 F.3d 815 (7th Cir. 2016) .......................................................................................10, 44, 45, 48 

Estate of Moreland v. Dieter, 395 F.3d 747 (7th Cir. 2005)..........................................................97

Evans v. Chicago, 2010 WL 3075651 (N.D. Ill. Aug. 5, 2010) ....................................................89

Fields v. Wharrie, 672 F.3d at 517 (7th Circ. 2012)(Fields I) .................................................22, 27 

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) (Fields II) ..................................................13, 40 

First Midwest Bank v. City of Chicago, 2018 WL 4126570 (N.D. Ill. Aug. 29, 2018) .........64, 107

Fox v. Hayes, 600 F.3d 819, 842 (7th Cir. 2010) ..............................................................39, 40, 41 

Freeman v. Chicago Park Dist., 189 F.3d 613 (7th Cir.1999) ......................................................41 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 7 of 157 PageID #:40487
vii 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

Fujisawa Pharm. Co. v. Kapoor, 1999 WL 543166 (N.D. Ill. July 21, 1999) ..............................64 

Glisson v. Indiana Dept. of Corrections, 2017 WL 680350 (7th Cir. 2017) ...................93, 97, 124

Giglio v. United States, 405 U.S. 150 (1972) ........................................................................ passim 

Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010) ..........................................................................20 

Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010 (7th Cir. 2016) ....................................................76

Griffin v. Bell, 694 F.3d 817 (7th Cir. 2012) .................................................................................68 

Griffin v. United States, 502 U.S. 46 (1991) ..................................................................................14 

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852 (7th Cir. 2005) ...................................43, 110 

Harris v. City of Chicago, 266 F.3d 750 (7th Cir. 2001) ...............................................................45 

Harvey v. Office of Banks, 377 F.3d 698 (7th Cir. 2004) ........................................................15, 29 

Hillmann v. City of Chicago, 834 F.3d 787 (7th Cir. 2016) ..........................................................44

Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322 (9th Cir. 1995) ..........................40

Houskins v. Sheahan, 549 F.3d 480 (7th Cir. 2008) ....................................................................127

In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651 (7th Cir. 2002) ....................57 

Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259 (8th Cir.1994) ................................................40 

Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007) ........................................................................102

Jimenez v. City of Chicago, 732 F.3d 710 (7th Cir. 2013) .................................................... passim 

Jimenez v. City of Chicago, 877 F. Supp. 2d 649 (N.D. Ill. July 11, 2012) ..................................47

Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988) ..............................................13, 19, 33, 35

Kadia v. Gonzales, 501 F.3d 817 (7th Cir. 2007) ..........................................................................22 

Kelso v. Bayer, 398 F.3d 640 (7th Cir. 2005) ............................................................11, 37, 53, 123 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 8 of 157 PageID #:40488
viii 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

King v. Kramer, 680 F.3d 1013 (7th Cir. 2012) ............................................................................86

Kontos v. Kontos, 968 F.Supp. 400 (S.D. Ind. 1997) ....................................................................64 

Kosmynka v. Polaris Indus., 462 F.3d 74 (2d Cir. 2006) ..............................................................40 

Kossman v. Northeast Illinois R.R. Corp., 211 F.3d 1031 (7th Cir. 2000) ..............................14, 79 

Kyles v. Whitley, 514 U.S. 419 (1995) .........................................................................13, 19, 27, 35 

Latino v. Kaizer, 58 F.3d 310 (7th Cir. 1995) ........................................................................77, 105 

LiButti v. United States, 107 F.3d 110 (2d Cir. 1997) ...................................................................64 

Logan v. Burge, No. 09 C 5471 (N.D. Ill.) ....................................................................................48

Malibu Media v. Tashiro, 2015 WL 13639447 (S.D. Ind. Apr. 15, 2015) ....................................48 

Martinez v. Cook County, 2011 WL 4686438 (N.D. Ill. Feb. 2, 2017) .........................................89

Mason v. Southern Ill. Univ., 233 F.3d 1036 (7th Cir. 2000) ............................................43, 68, 76 

Maurer v. Speedway, 774 F.3d 1132 (7th Cir. 2014) ..............................................................43, 63 

McNabola v. CTA, 10 F.3d 501 (7th Cir. 1993) ....................................................................77, 105 

Mejia v. Cook County, 650 F.3d 631 (7th Cir. 2011) ............................................................77, 105 

Miksis v. Howard, 106 F.3d 754 (7th Cir. 1997) .........................................................................126 

Mooney v. Holohan, 294 U.S. 103 (1935) ...............................................................................13, 40 

Moore v. Tuelja, 546 F.3d 423 (7th Cir. 2008) ............................................................................125 

Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006) .......................................................43 

Napue v. Illinois, 360 U.S. 264 (1959) ....................................................................................13, 40 

National Life Ins. Co. v. Hartford Acc. & Indem. Co., 615 F.2d 595 (3d Cir. 1980) ....................48 

Nelson v. Napolitano, 657 F.3d 586 (7th Cir. 2011) ...................................................................... X 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 9 of 157 PageID #:40489
ix 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

Newsome v. James, 260 F.3d 824 (7th Cir. 2001) .........................................................................39 

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) ............................................................ passim 

Oja v. Howmedica, Inc., 111 F.3d 782 (10th Cir. 1997) ...............................................................40 

Oostendorp v. Khanna, 937 F.2d 1177 (7th Cir. 1991) ...........................................................49, 54

Opp v. Wheaton Van Lines, 231 F.3d 1060 (7th Cir. 2000) ........................................61, 63, 78, 93

Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997) .......................................................................42 

Passanati v. Cook County, 689 F.3d 655 (7th Cir. 2013) ........................................................12, 29 

Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006)..................................................................40, 41

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .....................................................................86

Phelps v. St. Catherine Hosp., 908 F.2d 975 (7th Cir. 1990) ........................................................45 

Pickett v. Dart, 2014 WL919673 (N.D. Ill. Mar. 10, 2014) ..........................................................89

Pickett v. Sheridan Health Care, 610 F.3d 434 (7th Cir. 2010) ..................................................125 

Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) ..............................................................................71 

Pyle v. Kansas, 317 U.S. 213 (1942) .............................................................................................40 

Ramirez v. Chicago, No. 05 C 317 (N.D. Ill.) ...............................................................................48 

Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000) ...................................................................25 

Reynolds v. United States, 98 U.S. 145 (1878) ..............................................................................45 

Rivera v. Guevara, 2018 WL 2183998 (N.D. Ill. May 11, 2018) ..................................................11 

Robinson v. Harvey, No. 99 C 3696 (N.D. Ill.) .............................................................................48 

Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509 (8th Cir. 1984) ......................................48 

S.E.C. v. Graystone Nash, 25 F.3d 187 (3rd Cir. 1994) ................................................................46 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 10 of 157 PageID #:40490
x 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. 2012) ..............................................59, 62, 131 

Smith v. Cain, 565 U.S. 73 (2012) .................................................................................................20 

Smith v. Northeastern Ill. Univ., 388 F.3d 559 (7th Cir. 2004) ...............................................61. 78 

Socha v. Richardson, 874 F.3d 983 (7th Cir. 2017) ......................................................................37 

Soltys v. Costello, 520 F.3d 737 (7th Cir. 2008) ............................................................................57 

Sornberger v. Knoxville, 434 F.3d 1006 (7th Cir. 2006) .............................................................103 

State Farm v. Abrams, 2000 WL 574466 (N.D. Ill. May 11, 2000) ........................................64, 65 

Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998) ............................................................................86

Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415 (7th Cir. 1996) ....................................55

Sunstar, Inc. v. Alberto-Culver Co., Inc., 2004 WL 1899927 (N.D. Ill. Aug. 23, 2004) ........64, 65 

Swanigan v. Chicago, 775 F.3d 953 (7th Cir. 2015) .....................................................................89

Sylvester v. SOS Children’s Villages Illinois, 453 F.3d 900 (7th Cir. 2006) .................................18 

Taylor v. Bradley, 448 F.3d 942 (7th Cir. 2006) ...........................................................................16 

Thomas v. Cook County, 604 F.3d 293 (7th Cir. 2010) ......................................................... passim 

Ty Inc. v. Softbelly’s Inc., 353 F.3d 528 (7th Cir. 2003)..............................................................132 

United States v. Abel, 469 U.S. 45 (1984) ...................................................................................130 

United States v. Agurs, 427 U.S. 97 (1976) ...................................................................................14 

United States v. Beck, 625 F.3d 410 (7th Cir. 2010) ...............................................................49, 54 

United States v. Bozovich, 782 F.3d 814 (7th Cir. 2015).........................................................69, 72

United States v. Curry, 977 F.2d 1042 (7th Cir. 1992) ..................................................................75 

United States v. District Council of New York City, 832 F.Supp. 644 (S.D.N.Y. 1993) ...............65

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 11 of 157 PageID #:40491
xi 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991) ..............................................11, 38, 44, 123

United States v. Jimenez, 1995 WL 135923 (7th Cir. 1995) .........................................................58

United States v. Lawless, 709 F.2d 485 (7th Cir. 1983) ................................................................46 

United States v. Mabrook, 301 F.3d 503 (7th Cir. 2002)...............................................................47 

United States v. Patterson, 23 F.3d 1239 (7th Cir. 1994) ..............................................................18 

United States v. Powell, 652 F.3d 702 (7th Cir. 2011) ................................................................133 

United States v. Rylander, 460 U.S. 752 (1983) ............................................................................45 

United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980) ...............................................................50 

United States v. Vandetti, 623 F.2d 1144 (6th Cir. 1980) ..............................................................47 

United States v. Walker, 746 F.3d 300 (7th Cir. 2014) ..................................................................37 

United States v. White, 970 F.2d 328 (7th Cir. 1992) ....................................................................37 

United States v. White, 443 F.3d 582, 587-88 (7th Cir. 2006) .....................................................121

Valentino v. Village of South Chicago Heights, 575 F.3d 664 (7th Cir. 2009) .............................87

Venson v. Altamirano, 749 F.3d 641 (7th Cir. 2014) ...........................................................125, 129 

Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011) ...............................................................86

Walden v. City of Chicago, 846 F. Supp. 2d 963 (N.D. Ill. 2012) ...............................................132

Walden v. Illinois Central Gulf R.R., 975 F.2d 361 (7th Cir. 1992) ......................................77, 105 

Walker v. Groot, 867 F.3d 799 (7th Cir. 2017)..............................................................................55 

Wallace v. McGlothan, 606 F.3d 410 (7th Cir. 2010) ...................................................................10

Wearry v. Cain, 136 S. Ct. 1002 (2016) ......................................................................13, 14, 20, 88 

Wells v. Coker, 2014 WL 716518 (C.D. Ill. Feb. 25, 2014) ..........................................................89

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 12 of 157 PageID #:40492
xii 

TABLE OF AUTHORITIES (Cont.)

Cases Page(s) 

Whiting v. Westray, 294 F.3d 943 (7th Cir. 2002) .......................................................................132 

Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) ..............................................................13 

Wickens v. Shell Oil Co., 620 F.3d 747 (7th Cir. 2010)...............................................................125 

Williams v. Dieball, 724 F.3d 957 (7th Cir. 2013) ........................................................................10 

Williams v. Illinois, 567 U.S. 50 (2012) ........................................................................................71 

Williams v. U.S. DEA, 51 F.3d 732 (7th Cir. 1995) .....................................................................125 

Willis v. Lepine, 687 F.3d 826 (7th Cir. 2012) ..............................................................................78

Wilson v. City of Chicago, 758 F.3d 875 (7th Cir. 2014) ..............................................................68 

Woodward v. CMS, 368 F.3d 917 (7th Cir. 2004) .........................................................................97

Young v. James Green Mgmt., 327 F.3d 616 (7th Cir. 2003) ........................................42, 110, 119 

Other Authorities 

FED. R. CIV. P. 59(a)(1)(A) .................................................................................................. passim 

FED. R. EVID. 103(e) ...................................................................................................................55

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 13 of 157 PageID #:40493
1 

INTRODUCTION

Considering that trial lasted nearly four weeks, during which the Court made countless 

rulings, it is remarkable how little Defendants could find to complain about. To the extent their 

arguments are not forfeited, the handful of rulings they now challenge were not erroneous, much 

less an abuse of discretion that caused prejudice justifying a new trial. There was sufficient 

evidence to support the jury’s verdict in all respects. Defendants’ motions should be denied. 

I. SUMMARY OF RELEVANT FACTS 

A. The Valentin Shooting 

 On August 27, 1988, 16 year-old Felix Valentin drove his brother to his girlfriend’s 

apartment, waiting in the car in an alley next to the building. Ex. 31 (PX11).1

 As Valentin sat 

there, someone approached and shot him 11 times. Ex. 31 (PX11). Valentin told police that the 

assailant was between 16 and 18 years old. Ex. 38 (PX19C); Ex. 32 (PX12). He later told them 

that he had been shot by a member of the Imperial Gangsters street gang. Ex. 37 (PX19B); Ex. 2 

(Tr. 6/5/18) at 136-37, 152-54. The shooting happened after Valentin drove into the territory of 

the Imperial Gangsters, rivals of his gang, the Campbell Boys. Ex. 8 (Tr. 6/14/18) at 1694-95. 

 None of this had anything to do with Rivera, who was 23 years old at the time, living 

with his girlfriend and children, and working a local community center. Ex. 2 at 193-98. Rivera 

had never been a member of the Imperial Gangsters or the Campbell Boys, did not know 

Valentin or have reason to execute him, and had nothing to do with the crime. Ex. 2 at 217-19. 

At trial, no one disputed Rivera was innocent. Ex. 2 at 112; Ex. 17 (Tr. 6/27/18) at 4149-4251. 

 B. The Initial Interview of Orlando Lopez 

 The Valentin shooting was initially classified as an aggravated battery and was assigned 

to Detective McLaughlin. She was told that a 12 year-old boy named Orlando Lopez might be a 

 1

 A complete list of exhibits is included as Appendix A. See infra at App-1. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 14 of 157 PageID #:40494
2 

witness, so she interviewed him. McLaughlin has no recollection of the interview, Ex. 4 (Tr. 

6/8/18) at 924-27, but her General Progress Report (GPR) notes that Lopez told her he was “by 

store” when he saw the shooting, Ex. 32 (PX12); Ex. 3 (Tr. 6/7/18) at 589-91, a reference to the 

corner store almost 200 feet away from where the shooting occurred, Ex. 9 (Tr. 6/15/18) at 

2142-44. Lopez told McLaughlin that from that vantage point he saw a man approach Valentin’s 

car and fire a gun, but her GPR reflects that he was unable to provide any physical description of 

the shooter beyond that he was an 18 year old, with a black jacket, dark pants, and gym shoes. 

Ex. 32 (PX12); Ex. 3 at 585-89. 

 C. Defendants Guevara, Gawrys, and Mingey Investigate the Crime 

 Neither McLaughlin nor any other detective was able to develop evidence implicating 

Rivera in the crime. Ex. 3 at 543-47, 643-44; Ex. 6 (Tr. 6/12/18) at 1278-79. Detectives like 

McLaughlin relied on members of the Gang Crimes unit to provide intelligence about suspected 

gang shootings. Ex. 3 at 575-76; Ex. 8 at 1694; Ex. 12 (Tr. 6/20/18) at 2721-22; Ex. 14 (Tr. 

6/22/18) at 3327-28; Ex. 6 at 1275, Ex. 11 (Tr. 6/19/18) at 2483-84. Guevara refused to answer 

any questions during discovery or at trial about his role in the Valentin investigation, but 

contrary to Defendants’ suggestion, the documents and testimony show without contradiction 

that Guevara took over the investigation right away; that he participated in all aspects of the case, 

with his partner Steve Gawrys’s help at key moments; and that he and Gawrys closed the case, 

under Gang Crimes Sergeant Edward Mingey’s supervision. Ex. 6 at 1276-79; Ex. 8 at 1695-96. 

 D. Rivera’s Photo Is Shown to Lopez 

 According to Guevara and Gawrys’s September 16 report (hereafter the “9/16 report”), 

Lopez identified Rivera’s photograph for the first time on August 29 at the police station. Ex. 22 

(PX1A). The jury saw that every police report in the investigative file discussing the photo 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 15 of 157 PageID #:40495
3 

identification of Rivera put that identification on August 29. Ex. 22 (PX1A); Ex 25 (PX5); Ex. 

27 (PX7); Ex. 34 (PX16). Thus, the official version was always that Rivera was not a suspect in 

the crime until Lopez randomly selected him from a book of gang members on August 29, and 

that was the State’s theory. Ex. 13 (Tr. 6/21/18) at 3107-08. It was undisputed that Lopez only 

participated in one photo identification procedure, and there would have been no reason to do it 

more than once. Ex. 22 (PX1A); Ex. 7 (Tr. 6/13/18) at 1650-57; Ex. 6 at 1279, 1296, 1324; Ex. 8 

at 1749-50, 1763-64; Ex. 12 at 2760; Ex. 4 at 674-75; 699; Ex. 7 at 1648-1657. 

 The official version was false. A copy of Rivera’s rap sheet was requested from the 

records division, and a copy of his mug shot was printed, on August 27, 1988, two days before 

the documented August 29 identification at which Lopez supposedly first brought Rivera into the 

case. There is no explanation in the file, and there was no explanation at trial, of why Defendants 

were focused on Rivera as a suspect two days before Lopez supposedly identified him randomly 

from among photos in gang books. Ex. 22 (PX1A); Ex. 24 (PX4); Ex. 32 (PX12); Ex. 52 (PX66); 

Ex. 4 at 576-77, 674-75; 681-99, 816-17, 931-35; Ex. 6 at 1278-79, 1296, 1324; Ex. 7 at 

1648-1657; Ex. 8 at 1736-50, 1763-64; Ex. 11 (Tr. 6/19/18) at 2509; Ex. 12 at 2760. 

 According to the testimony at trial, a number of Gang Crimes officers went to Lopez’s 

house on August 27, the night of the shooting. Ex 12 at 2760, 2719, 2765-66; Ex. 8 at 1758-59; 

Ex. 6 at 1298. No police report or paperwork associated with this event exists. Ex. 8 at 1757; Ex. 

11 at 2508. No police officer was able to explain what actually happened at Lopez’s house on 

August 27. Ex. 6 at 1248; Ex. 11 at 2687-88; Ex. 12 at 2760. Noon, Fallon, Zacharias, and 

Sparks each testified that, though they went to the Lopez residence on August 27, they were not 

personally present in the room when Lopez was shown photos. Ex. 12 at 2719, 2765-66; Ex. 8 at 

1770. Guevara was the only officer at Lopez’s house who could have obtained the photo 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 16 of 157 PageID #:40496
4 

identification from Lopez.2

 Sparks confirmed that Guevara was in another room with Lopez, 

after which Guevara announced to other officers that Lopez had identified Rivera. Ex. 12 at 

2765-70, 2780-85. Guevara pleaded the Fifth when asked whether he showed Lopez the mugshot 

of Rivera prior to Lopez’s mugbook identification. Ex. 6 at 1271-79, 1301-03. 

 E. The First Lineup 

 Lopez testified that shortly after making a photo identification he was shown a live 

lineup. Ex. 21 (Designated Deposition Testimony of Orlando Lopez) at 18-19, 77, 81-82; Ex. 7 

at 1651-52; Ex. 10 (Tr. 6/18/18) at 2449; Ex. 11 at 2463. Rivera confirmed that he was placed in 

a lineup shortly after the August 27 shooting, and that he was released after the lineup, before 

being brought back for another lineup a few weeks later. Ex. 2 at 202-213. Reports show Rivera 

was originally arrested on August 30, and hold papers were submitted to keep him in custody so 

that a lineup could be conducted. Ex. 25 (PX5); Ex. 36 (PX6). Similar papers were submitted for 

Rodriguez. Ex. 28 (PX8); Ex. 29 (PX9). Guevara brought Lopez in for the lineup. Ex. 7 at 

1651-53; Ex. 21 at 75-78. Police records reflect that the lineup took place on August 31. Ex. 33 

(PX14); Ex. 50 (PX62); Ex. 3 at 529-35. Three other participants in the lineup testified that it in 

fact took place. Ex. 5 (Tr. 6/11/18) at 1011-1019, 1057-1062; Ex. 15 (Tr. 6/25/18) at 3702-21. 

 Lopez picked someone at this first lineup. Ex. 7 at 1653; Ex. 10 at 2449; Ex. 11 at 2463; 

Ex. 21 at 80-83. He believes that he picked Rivera. Id. But Lopez did not pick Rivera. There 

would have been a police report created had Lopez selected Rivera, but there is no such report. 

 2

 The jury heard that Gang Crimes officers, not detectives, were the ones interacting with Lopez. 

Ex. 8 at 1798. The 9/16 report, written by Guevara and Gawrys, lists Noon, Guzman, Sparks, and 

Zacharias as the other officers who located Lopez. Ex. 22 (PX1A). Of these officers, the parties stipulated 

that Fallon and Zacharias did not obtain the photo identification from Lopez, Ex. 8 at 1770, and Gawrys, 

Noon, and Sparks denied involvement on the stand. Ex. 8 at 1886; Ex. 12 at 2719; Ex. 12 at 2765. The 

only Gang Crimes officer who did not deny involvement was Guevara. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 17 of 157 PageID #:40497
5 

Ex. 3 at 548-554, 629-630. And Rivera was released shortly after August 31 the lineup, which 

would not have happened had he been selected. Ex. 2 at 207-08; Ex. 4 at 704-12; Ex. 27 (PX7). 

 F. Identifications By Valentin and Defendants’ False Reports 

 On August 31, Letrich interviewed Valentin in the hospital. Ex. 37 (PX19B); Ex. 2 at 

132-36. Valentin told Letrich that the shooter was an Imperial Gangster. Ex. 2 at 136. The 

problem was that Defendants had already obtained Lopez’s “identification” of Rivera, and 

Rivera was affiliated with the Latin Kings street gang. Ex. 2 at 190-91. Letrich asked Valentin 

whether he was sure that it had been an Imperial Gangster rather than a Latin King, to which 

Valentin responded that he was sure. Ex. 2 at 136-137. According to Letrich, Valentin was quite 

confident that Rodriguez was the person who shot him. Ex. 2 at 136-41. 

 When Valentin died on September 14, the case became a homicide. Ex. 35 (PX19) at 

26-28; Ex. 8 at 1800-01. The next day, Rivera was arrested and charged. Ex. 23 (PX3); Ex. 8 at 

1800-01. Defendants’ 9/16 report, which summarized Rivera’s purported guilt, related that 

Guevara and Gawrys had secured a photo identification of Rivera from Valentin on September 

10, shortly before his death. Ex. 22 (PX1A); Ex. 8 at 1704-06. There was no previous report of 

this identification. Ex. 35 (PX19); Ex. 8 at 1705-07. When Defendants created and signed the 

9/16 report, the veracity of Valentin’s purported September 10 identification could not be tested 

given that Valentin was by that point dead. Ex. 22 (PX1A); Ex. 42 (PX31A) at 1. 

 The report of Valentin’s identification of Rivera was false in at least two respects. First, 

even according to Gawrys’s own testimony at trial, Valentin had not in fact identified Rivera as 

reported. Instead, Gawrys testified that Valentin had made an “unreliable” identification of 

Rivera. Ex. 8 at 1707-16. Yet the written report reflects nothing unreliable or even equivocal 

about the purported identification. Ex. 22 (PX1A); Ex. 8 at 1715-16. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 18 of 157 PageID #:40498
6 

 Second, by September 10, Valentin was effectively in a coma. According to Dr. Sharkey, 

his treating physician, and contemporaneous medical records, Valentin was not responsive, his 

neurological functioning was ceasing, he had no reaction to painful stimuli and his pupils did not 

react to light, and was on heavy doses of drugs that induced paralysis so that he would not 

involuntarily kick the breathing machine that was keeping him alive. Ex. 42 (PX31A); Ex. 20 

(Designated Deposition Testimony of Dr. Arthur Sharkey) at 27-45; Ex. 7 at 1680; Ex. 8 at 1687, 

1707-09. He could not have identified anyone on September 10, and did not identify a photo of 

Rivera at all (unreliably or not) on that day. Ex. 20 at 55-56, 175-178. 

 In sum, Defendants falsely reported Valentin’s identification of Rivera, without reporting 

the true circumstances of that purported identification, and without reporting that previously 

Valentin had emphatically denied that a Latin King had shot him. None of these true 

circumstances were revealed until after Rivera’s post-conviction proceedings or until after his 

exoneration. Ex. 4 at 763-772; Ex. 10 at 2243-51; Ex. 56 (PX269). 

 G. The Second Lineup 

 On September 15, a second lineup was conducted. Ex. 40 (PX19G); Ex. 3 at 417. 

According to their report, detectives Dorsch and Boyle, who had not been involved in the 

investigation previously, asked Guevara and Gawrys for “assistance in locating the offenders in 

this incident along with known witnesses.” Ex. 35 (PX19) at 26-28; Ex. 12 at 2682; Ex. 15 at 

3543-44. Guevara and Gawrys brought Rivera in for a second lineup to be viewed by Lopez. Ex. 

35 (PX19) at 9-10, 26-28; Ex. 8 at 1802-06. The evidence suggested that Guevara brought Lopez 

in as well. Ex. 21 at 75-78. 

 Once at the station, Lopez testified that he told a woman and a Latino police officer with 

glasses, an afro, and a mustache that Rivera was not the shooter—he was the “wrong guy.” Ex. 7 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 19 of 157 PageID #:40499
7 

at 1655-1657; Ex. 21 at 93-94. He also told them the shooter had been an Imperial Gangster. Ex. 

59 (DX103) at 17; Ex. 60 (DX115) at 3. The Latino officer he told was Guevara. Ex. 43 (PX33); 

Ex. 12 at 2722-27; Ex. 3 at 580; Ex. 4 at 734-36. According to Lopez, Guevara would not accept 

his denial that Rivera was the shooter, and he instead told Lopez that the police would protect 

him if he went through with identifying Rivera. Unable to get Guevara to listen to him, Lopez 

felt he had no choice but to proceed with the identification of Rivera. Ex. 21 at 93-94, 100-01; 

Ex. 7 at 1656; Ex. 59 (DX103) at 8-12. 

 Reflecting on his treatment years later, Lopez testified that he was taken advantage of 

because of his age. Ex. 7 at 1674; Ex. 8 at 1907-10; Ex. 54 (PX260); Ex. 21 at 97-98; Ex. 59 

(DX103) at 8-12. He twice let slip that Defendants had told him who he should identify. Ex. 7 at 

1677:23-78:13; Ex. 21 at 73:10-15. And he said he “cursed the police.” Ex. 21 at 137:17-138:7. 

 H. The Purported Exclusion of Rodriguez 

 At the conclusion of their 9/16 report, Guevara and Gawrys added a final paragraph 

written on a different typewriter, showing that it was added after the rest of the report had been 

typed. Ex. 8 at 1830-55. That paragraph said that Lopez had been shown a photo of Rodriguez 

and had excluded him as the shooter. Ex. 22 (PX1A). Defendants needed to add this fact because 

the victim Valentin had identified Rodriguez. Ex. 37 (PX19B); Ex. 2 at 140. In fact, Lopez never 

made any such exclusion. Ex. 8 at 1845-52; Ex. 16 at 3950; Ex. 21 at 177. 

 I. Rivera’s Criminal Trial 

 Rivera was prosecuted for murder in 1990. All of the misconduct described above was 

suppressed. Ex. 44 (PX35); Ex. 8 at 1395-1412, 1609-10; Ex. 13 at 3099-3114; Ex. 10 at 

2243-51; Ex. 56 (PX269); Ex. 5 at 964-69, 977-78; Ex. 2 at 228. Also suppressed were the 

Chicago Police Department’s investigative files for the Valentin homicide. Both prosecutors and 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 20 of 157 PageID #:40500
8 

the defense requested all of the investigative files. Ex. 8 at 1375-84; Ex. 45 (PX39); Ex. 46 

(PX40); Ex. 48 (PX43A); Ex. 13 at 3103-05, 3109-17. Neither prosecutors nor the defense 

received the complete investigative files. Ex. 56 (PX269); Ex. 10 at 2243-51; Ex. 8 at 

1395-1412; Ex. 13 at 3099-3114. Documents contained in the investigative file but not turned 

over were introduced as Plaintiff’s Exhibit 269 during trial. Ex. 56 (PX269). In addition to these 

suppressed file, none of the gang crimes notes or reports were turned over, with the exception of 

the 9/16 report. Ex. 56 (PX269). 

 There was very little evidence of Rivera’s guilt at trial—there was no murder weapon, no 

motive, no incriminating statements, and no physical evidence. Ex. 44 (PX35); Ex. 2 at 224-35; 

Ex. 6 at 1385-86; Ex. 13 at 3080-81. Aside from the identification by Lopez, the only other 

witness of substance at trial was Guevara. At trial, Guevara was called to bolster Lopez’s 

identification, and he did so by falsely confirming a fact never before reported during the 

investigation: Lopez took the stand and said that the shooter had a gold ponytail; and Guevara 

followed that testimony by testifying falsely that he knew Rivera to have a gold ponytail at the 

time he arrested Rivera in 1988. Ex. 44 (PX35); Ex. 2 at 226-30; Ex. 49 (PX58B); Ex. 6 at 1402; 

Ex. 16 (Tr. 6/26/18) at 3944-45; Ex. 13 at 3085-87. This was false. Rivera never had a gold 

ponytail in his life. Ex. 2 at 231-32; Ex. 6 at 1240-43. But faced with this new allegation, which 

was never previously memorialized and was raised for the first time at trial, Rivera could not 

prove definitively what his hair looked like two years before. Ex. 2 at 229-34; Ex. 6 at 1402. 

 On the basis of Lopez’s and Guevara’s testimony, Rivera was convicted of Valentin’s 

murder and was sentenced to 80 years in prison. Ex. 44 (PX35); Ex. 2 at 239; Ex. 6 at 1412. 

Rivera spent 21 years in maximum-security prisons, under truly horrific conditions. Ex. 2 at 

248-94. He suffered terribly, in large part because his family was torn apart, and he missed the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 21 of 157 PageID #:40501
9 

entire childhoods of his young children, two of whom testified at trial. Ex. 2 at 294-302; Ex. 9 at 

2145-56; Ex. 12 at 2791-2814. 

 J. Rivera’s Exoneration, Certificate of Innocence, and Civil Suit 

 Years after Rivera was sent to prison, Lopez told his pastor the role he had played in 

Rivera’s wrongful conviction. Ex. 15 at 3736-38. In 2010, two investigators working with the 

Center on Wrongful Conviction at Northwestern University School of Law—Jennifer Linzer and 

Cynthia Estes—showed up at Lopez’s door in Ohio and asked him open-ended questions about 

his identification of Rivera. Ex. 8 at 1901-05; Ex. 15 at 3646-48. Without prompting, Lopez 

broke down and explained that he had told the police that Rivera was not the shooter, but they 

would not listen to him. Ex. 8 at 1903-08, 1927-28. 

 With assistance of attorneys at the Center on Wrongful Convictions, Rivera’s petition for 

post-conviction relief based on newly discovered evidence was granted. Ex. 8 at 1913; Ex. 15 at 

320, 346. The state dropped the charges, and Rivera was released from prison. Ex. 8 at 1914; Ex. 

3 at 320, 346-47. He was awarded a certificate of innocence. Ex. 3 at 352. He then filed this suit 

seeking redress for violations of his constitutional rights. Doc. 1. After a lengthy trial, a jury 

found the City of Chicago, Guevara, Gawrys, and Mingey liable, and awarded Rivera more than 

$17 million in damages. Doc. 678. Additional evidence introduced at trial relevant to 

Defendants’ particular arguments is discussed below. 

II. DEFENDANTS HAVE FORFEITED MANY OF THEIR ARGUMENTS 

 Before addressing the merits, it is important to stress that Defendants have forfeited many 

of the arguments they now present. These forfeitures are discussed in response to particular 

arguments below, while several categorically forfeited arguments are discussed here. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 22 of 157 PageID #:40502
10 

A. Most of Defendants’ Rule 50(b) Arguments Are Forfeited Because They 

Were Not Included In Their Respective Rule 50(a) Motions 

Rule 50(b) motions are limited to factual and legal arguments developed in earlier Rule 

50(a) motions. Wallace v. McGlothan, 606 F.3d 410, 418-19 (7th Cir. 2010); Jimenez v. 

Chicago, 877 F. Supp. 2d 649, 672 (N.D. Ill. 2012). A large number of Defendants’ Rule 50(b) 

arguments are forfeited because they were absent from their Rule 50(a) motions. 

Guevara and Mingey filed a two-paragraph Rule 50(a) motion, presenting a single, 

conclusory argument that the evidence could not support a verdict because the only evidence 

against them was their invocation of the Fifth Amendment. Doc. 665 at 1. They also purported to 

“adopt” their prior briefing and the briefs of other Defendants. Id. But references to earlier briefs 

are insufficient to preserve Rule 50 issues. Empress Casino v. Balmoral Racing, 831 F.3d 815, 

823 (7th Cir. 2016). And as this Court ruled post-trial, Guevara and Mingey made no effort in 

their Rule 50(a) motion to discuss the factual record at trial as it applied to them, and thus they 

forfeited any argument set out in their co-Defendants’ Rule 50(a) motion. Doc. 676 at 6 (citing 

Williams v. Dieball, 724 F.3d 957, 961 (7th Cir. 2013)). 

Guevara and Mingey now attempt to avoid their forfeiture by joining with Gawrys in a 

combined Rule 50(b) motion. Doc. 711. But the following arguments presented in that combined 

Rule 50(b) motion were never presented by Guevara or Mingey in any Rule 50(a) motion and are 

forfeited: (1) all arguments advanced by Guevara and Mingey that the evidence was insufficient 

to support the due process verdict against them;3

 (2) their argument relating to the conspiracy 

and failure to intervene verdicts, Doc. 711 at 13; (3) Guevara’s argument relating to the 

 3

 Including the arguments: that Mingey was not part of the investigation in August 1988, Doc. 

711 at 6 & 10; that Guevara was not present for any identification on August 27, id. at 6-9; that Guevara 

did not order the Rivera rap sheet on August 27, id. at 9; that the first lineup on August 31 was not 

exculpatory, id. at 9-10; that Mingey was not present for the September 15 lineup or Lopez’s statement 

that Rivera was not the shooter, id. at 10; and that Guevara did not understand what Lopez meant when he 

said Rivera was not the shooter, id. at 11-12. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 23 of 157 PageID #:40503
11 

intentional infliction of emotional distress verdict, id. at 14; and (4) Guevara’s argument that he 

is entitled to qualified immunity, id. at 14-15.4

 B. All Arguments Relating to the 9/16 Report Are Forfeited 

 All Defendants forfeited any argument relating to the 9/16 report. The only statement 

about that report is contained in a single-sentence footnote of the individual Defendants’ Rule 

50(b) motion. Doc. 711 at 5 n.1. To the extent this footnote is even an argument, the discussion 

is so undeveloped that the point is forfeited. Arlin-Golf v. Arlington Heights, 631 F.3d 818, 822 

(7th Cir. 2011).5 Compounding the forfeiture is the fact, noted by the Court post-trial, that all 

arguments that the 9/16 report should have been limited as evidence were forfeited when 

Defendants decided not to request a jury instruction on that subject. Doc. 676 at 6 & n.2. In sum, 

Defendants do not and cannot argue that the 9/16 report was insufficient to sustain the verdict 

against them, and they have therefore completely ignored important evidence that would 

independently justify denying their post-trial motions. 

 C. Other Arguments Not Raised By Defendants Are Forfeited 

 Finally, arguments not addressed by Defendants in their motions at all are now waived 

and cannot be raised for the first time in reply. Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 

2011); Kelso v. Bayer, 398 F.3d 640, 643 (7th Cir. 2005); U.S. v. Dunkel, 927 F.2d 955, 956 (7th 

Cir. 1991). This rule is elementary, but it is important to highlight some of the items unaddressed 

by Defendants in their briefs: (1) Defendants do not preserve any challenge to the damages 

 4

 Guevara and Mingey also forfeited any argument that the due process verdict could not be 

based on their 9/16 report, see Ex. 22 (PX1A), by failing to discuss that report in their Rule 50(a) motion, 

see Doc. 665 at 1. But all Defendants have also forfeited any argument about the 9/16 report by failing to 

present any argument post-trial, as discussed next. 

5

 Moreover, the footnote misstates the Court’s summary judgment ruling, saying that the Court 

dismissed any due process theory based on the 9/16 report, 711 at 5 n.1, when in fact the Court merely 

dismissed any fabrication theory based on the falsified Valentin identification reflected in that report—an 

identification that was not admitted a Rivera’s criminal trial, see Rivera v. Guevara, 2018 WL 2183998, 

at *22-23, 46 (N.D. Ill. May 11, 2018); accord Doc. 528. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 24 of 157 PageID #:40504
12 

award; (2) the individual Defendants do not properly preserve any challenge to the jury 

instructions;6 (3) the individual Defendants only address three due process theories presented at 

trial in their motions,7 and they ignore the numerous additional theories discussed in this 

response, forfeiting any argument about those additional theories entirely; (4) the individual 

Defendants also limit any argument about the conspiracy, failure to intervene, and intentional 

infliction of emotional distress verdicts to the bald assertion that those verdicts cannot stand if 

the due process verdict is set aside, Doc. 711 at 13-14, and all other challenges they might have 

raised relating to those claims are forfeited; (5) Guevara’s claim of qualified immunity—again, 

to the extent that it is even preserved—is limited exclusively to Lopez’s statement to Guevara 

that Rivera was not the shooter, Doc. 711 at 14-15; and (6) Defendants do not challenge the 

Court’s Rule 404(b) rulings. The Court should refuse to entertain new arguments raised in reply.8

III. DEFENDANTS’ RULE 50(B) CHALLENGES LACK MERIT

Defendants seek judgment as a matter of law under Rule 50(b) and can prevail only if no 

rational jury could have found for Rivera. Bogan v. Chicago, 644 F.3d 563, 572 (7th Cir. 2011).9

The Court construes the evidence strictly in Rivera’s favor, it “does not make credibility 

determinations or weigh the evidence,” and it “must disregard all evidence favorable to the 

moving party that the jury [was] not required to believe.” Passanati v. Cook County, 689 F.3d 

655, 659 (7th Cir. 2013). Such challenges face a “daunting task, given the deferential standard 

 6

 Jury instruction issues raised by the City, and the individual Defendants’ forfeiture of jury 

instruction arguments, are discussed in Part VI, below. See infra at 119. 

7

 The individual Defendants’ arguments are limited to the August 27 photo show up with Lopez, 

the first lineup, and Lopez’s September 15 statement that Rivera was the “wrong guy.” Doc. 711 at 5-13. 

8

 Addition forfeitures by the City are discussed below. See infra at 78. 

9

 The City’s Rule 50(b) and 59 motions substantially overlap when it comes to its discussion of 

theories of municipal liability. Compare Doc. 707, with Doc. 708. Accordingly, the City’s arguments 

about the Monell claims are discussed collectively in Part V below. See infra at 78. Arguments in the 

City’s Rule 50(b) motion that do not pertain to municipal liability are discussed here in Part III. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 25 of 157 PageID #:40505
13 

that applies to such reviews.” Cruz v. Cicero, 275 F.3d 579, 586 (7th Cir. 2001). Defendants 

cannot satisfy this stringent standard on any of the claims. 

A. The Evidence Firmly Supports the Verdict on Rivera’s Due Process Claims 

Against the Individual Defendants 

Much of the evidence supporting the jury’s verdict for Rivera on his due process claims 

against the individual Defendants is not even acknowledged, much less addressed, in their 

post-trial motions. Consistent with the discussion of forfeiture above, there are whole categories 

of evidence that independently support the jury’s due process verdicts that Defendants ignore 

entirely. Regardless, there is ample evidence supporting the jury’s verdict. 

1. Legal Standard 

 The Court properly instructed the jury on two ways in which Rivera could establish a 

section 1983 due process violation. First, it violates due process to withhold exculpatory or 

impeachment evidence that is material to the criminal case. Kyles v. Whitley, 514 U.S. 419, 438 

(1995); Whitlock v. Brueggemann, 682 F.3d 567, 572 (7th Cir. 2012); Dominguez v. Hendley, 

545 F.3d 585 (7th Cir. 2008); Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001); Jones v. 

Chicago, 856 F.2d 985 (7th Cir. 1988). Second, “‘a police officer who manufactures false 

evidence against a criminal defendant violates due process if that evidence is later used to 

deprive the defendant of [his] liberty in some way.’” Avery v. Milwaukee, 847 F.3d 433, 439 (7th 

Cir. 2017) (citing Mooney v. Holohan, 294 U.S. 103, 112 (1935)); Fields v. Wharrie, 740 F.3d 

1107, 1112 (7th Cir. 2014) (Fields II); Whitlock, 682 F.3d at 580. 

 The Supreme Court recently reaffirmed that “[e]vidence qualifies as material when there 

is any reasonable likelihood it could have affected the judgment of the jury.” Wearry v. Cain, 

136 S. Ct. 1002, 1006 (2016) (quoting Giglio v. United States, 405 U.S. 150, 154 (1972); Napue 

v. Illinois, 360 U.S. 264, 271 (1959)) (internal quotations omitted). Defendants here attack the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 26 of 157 PageID #:40506
14 

items of suppressed or fabricated evidence piece by piece, but the Supreme Court has stressed 

that materiality must be assessed by considering all suppressed or fabricated evidence together in 

the aggregate, and not piece by piece. Wearry, 136 S. Ct. at 1007. At the same time, whether 

evidence is materials depends on the strength of other evidence used in the criminal case, so in 

cases where there is scant evidence of guilt, as was the case at Rivera’s trial, it takes less for the 

suppressed or fabricated evidence to be deemed material. United States v. Agurs, 427 U.S. 97, 

113 (1976). By limiting their argument to a subset of the evidence in Rivera’s criminal case, 

Defendants miss that the central thrust of Rivera’s due process claim is that Defendants 

fabricated an entire case against Rivera out of whole cloth. 

2. The Record Amply Supports the Due Process Verdicts 

 Evidence supporting one of multiple theories of liability against Guevara, Gawrys, and 

Mingey is sufficient to sustain the jury’s due process verdict against them. Thomas v. Cook 

County, 604 F.3d 293, 305 n. 4 (7th Cir. 2010) (citing Griffin v. United States, 502 U.S. 46, 60 

(1991)); Kossman v. Northeast Illinois R.R. Corp., 211 F.3d 1031, 1037 (7th Cir. 2000). The 

evidence at trial established at least a dozen separate bases for the due process verdict, each one 

of which would be independently sufficient. When these bases are considered together, and in 

light of the relative weakness of the criminal case against Rivera, as the law requires, there is 

overwhelming support in the record for the due process verdict. 

(a) The August 27 Photo Show Up with Orlando Lopez. As discussed, all of the written 

reports state that Lopez first identified Rivera by picking his photograph from among many 

choices in a set of gang mugbooks on August 29. The state’s theory of the case was always that 

Rivera only became a suspect because Lopez stopped on his photograph and told the officers that 

Rivera was the shooter. No one could explain, however, why Rivera’s rap sheet and photo were 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 27 of 157 PageID #:40507
15 

pulled on August 27, two days before the official gang book identification reported on August 

29. Nor could Guevara explain what business he had showing Lopez a photo of Rivera in 

Lopez’s kitchen on August 27, an event that is completely “off the paper.” See supra at 2. 

 At trial, Defendants tried to avoid the problem of the August 27 photo show up both by 

denying that they had shown Lopez a photograph of Rivera on August 27, and by arguing that 

their August 29 gang mugbook identification had actually taken place on August 27. They 

argued that all of the written records showing that the mugbook identification had happened on 

August 29 were typographical errors, and that the various authors of those reports meant to write 

August 27, but mistyped the date. Ex. 4 at 689-90, 751-52, 820-24, 927-37; Ex. 8 at 1742-51. In 

order to accept that theory, the jury would have had to believe that there were three identical 

typos on the same subject in the reports—in the 9/16 report, Ex. 22 (PX1A), and on two separate 

pages of McLaughlin’s August 29 report, Ex. 35 (PX19) at 29-30; that McLaughlin had omitted 

the discussion of the mugbook procedure from her report written August 27, Ex. 35 (PX19) at 

31-33; and that Defendants had waited three days to arrest Rivera on August 30, Ex. 25 (PX5). 

 The jury was free to disbelieve that testimony. Harvey v. Office of Banks, 377 F.3d 698, 

712 (7th Cir. 2004) (“[If there is] evidence from which the jury may reasonably infer that the 

proffered reasons are not truthful, the case turns on the credibility of the witnesses[, and courts] 

will not second-guess a jury on credibility issues.”); Emmel v. Coca-Cola, 95 F.3d 627, 633-34 

(7th Cir. 1996). Indeed, it was more than reasonable for the jury to conclude that Guevara had 

showed Lopez the mugshot of Rivera on August 27, two days before the official gang book 

identification on August 29, thereby putting the lie to Defendants’ official story that Rivera was 

properly identified from among many photos in a mugbook. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 28 of 157 PageID #:40508
16 

 To be sure, some of this conclusion relied on inferences that had to be proved with 

circumstantial evidence, but that is hardly unusual given the type of misconduct at issue. Desert 

Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“Circumstantial evidence is not only sufficient, 

but may also be more certain, satisfying and persuasive than direct evidence.”). The 

manipulation on August 27 occurred in a room outside the presence of Plaintiff or anyone 

affiliated with his side. And while Lopez’s testimony might have provided some support for the 

version of the facts the Defendants now ask the Court to adopt, Lopez qualified that testimony by 

explaining that because he was a child when these events occurred more than 25 years before, he 

“can’t really tell you” details, which he proceeded to try to do anyway in response to 

questioning. See Doc. 711 at 8 (quoting Doc. 580-1, at 72-73). 

 When faced with conflicting, or even inconsistent testimony, the jury is free to believe 

one side over another. Thomas, 604 F.3d at 302; see also Taylor v. Bradley, 448 F.3d 942, 951 

(7th Cir. 2006); Allen v. CTA, 317 F.3d 696, 703 (7th Cir.2003). Lopez’s account 

notwithstanding, there was ample circumstantial proof that would have permitted the jury to infer 

Lopez had been manipulated on August 27, when he was shown a mugshot of Rivera, and that 

this manipulation was the reason for the mugbook identification. This included: Lopez said that 

Defendants took advantage of his youth, Ex. 7 at 1674; Ex. 8 at 1907-10; Ex. 54 (PX260); Ex. 21 

at 97-98; he said his youth rendered him vulnerable to manipulation, Ex. 59 (DX103) at 8-12; 

Ex. 7 at 1656, 1674; Ex. 8 at 1907-10; Ex. 54 (PX260); Ex. 21 at 93-101; Defendants had no 

explanation for why they pulled Rivera’s rap sheet and photo on August 27, when there was no 

mention of Rivera in any of their police records until August 29, Ex. 22 (PX1A); Ex. 25 (PX4); 

Ex. 32 (PX12); Ex. 51 (PX66); Ex. 4 at 576-77, 674-75; 681-99, 816-17, 931-35; Ex. 6 at 

1278-79, 1296, 1324; Ex. 7 at 1648-1657; Ex. 8 at 1736-50, 1763-64; Ex. 11 at 2509; Ex. 12 at 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 29 of 157 PageID #:40509
17 

2760; contrary to procedure, Defendants took no notes and created no reports relating to any 

interaction with Lopez on August 27, Ex. 35 (PX19); Ex. 4 at 678-83, 932-33; Ex. 8 at 1731-33, 

1756-68; no police officer even mentioned that any identification procedure had taken place on 

August 27, until the rap sheet with the August 27 dates stamp materialized during Rivera’s 

post-conviction case, Ex. 35 (PX19) at 9-10, 29-30; Ex. 4 at 766, 771-72; Ex. 9 at 2202-04; 

Sparks’s testimony put Guevara in the kitchen with Lopez on August 27 when an identification 

was supposedly made, Ex. 12 at 2765-70; four police witnesses present in the Lopez home on 

August 27 denied being in the room with Guevara and Lopez when the purported photo was 

shown, Ex. 8 at 1768-71; Ex. 11 at 2692; Ex. 12 at 2765-66; Lopez had been by the store, nearly 

200 feet from the shooting, at the time he saw the shooter and thus could not legitimately have 

made any identification, Ex. 35 (PX19) at 53; all parties agreed that Rivera had nothing to do 

with the Valentin shooting, Ex. 17 at 4149-4150, 4251, making it highly coincidental that Lopez 

would have picked Defendants’ suspect from the mugbook, Ex. 8 at 1746-47; Ex. 6 at 1301-02; 

Ex. 11 at 2482-83; the 9/16 report states that Defendants showed Lopez a single photo of another 

suspect, Rodriguez, in contravention of rules requiring that the witnesses identify suspect photos 

from among multiple pictures, Ex. 22 (PX1A); Ex. 5 at 1143-44, 1165-66; Gawrys, Sparks, 

Spratte, Wells, and Defendants’ own expert Wixted testified that child witnesses can be steered 

toward a suspect’s photograph without even realizing that they had not made the selection 

themselves, Ex. 8 at 1729-31; Ex. 5 at 1098-99, 1109-1110; Ex. 12 at 2767-2768; Ex. 14 at 

3411-14; Ex. 16 at 4018; and, importantly in light of all of this evidence, Guevara declined to 

deny that he steered Lopez to the photo of his suspect, Ex. 6 at 1301-05, and both Guevara and 

Mingey pleaded the Fifth in response to all questions about what occurred on August 27 and 29, 

Ex. 6 at 1277-79; Ex. 11 at 2486-87, 2508-10. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 30 of 157 PageID #:40510
18 

 This circumstantial evidence was more than sufficient to permit the conclusion that 

Guevara fabricated the Lopez identification with a photo show up on August 27, and that all of 

the Defendants suppressed that photo show up and the fact that Rivera’s rap sheet and mugshot 

were pulled on August 27—a suppression that was accomplished in part by creating the false 

9/16 report covering up what had actually happened. Avery, 847 F.3d at 443-44 (finding 

suppression and fabrication due process violations in these circumstances); Newsome v. McCabe, 

319 F.3d at 302-05 (holding that “the details about how [the police] induced the witnesses to 

finger Newsome” was “information vital to probe whether manipulation occurred”). If parties 

were not permitted to disprove certain testimony with circumstantial evidence, it would be 

impossible to win a point such as this one where the wrongdoing happened behind closed doors. 

The law, however, puts indirect proof on equal footing, and trusts juries to draw reasonable 

inferences. Sylvester v. SOS Children’s Villages Illinois, 453 F.3d 900, 902-03 (7th Cir. 2006) 

(explaining direct and circumstantial evidence have equal probative value). 

 Defendants’ final argument is that Rivera cannot establish Guevara’s involvement in the 

August 27 show up and later cover up because, at trial, Sparks attempted to retract his prior 

deposition testimony that Guevara had been alone with Lopez in another room of the house on 

August 27 when an identification of Rivera supposedly occurred. Ex. 12 at 2765-70. According 

to Sparks’ trial testimony, his memory had improved since his deposition, and he came to believe 

that his prior testimony was “mistaken.” See Doc. 711 at 7 (citing Ex. 12 at 2768-70). Leaving 

aside that Sparks could not explain what recently made his memory improve regarding a single 

event more than 20 years before, Ex. 12 at 2760, 2769, the jury was not required to accept a 

former-Defendant police officer’s attempt to fall on the sword for his colleague, and the jury 

could have instead credited his original testimony. United States v. Patterson, 23 F.3d 1239, 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 31 of 157 PageID #:40511
19 

1244 (7th Cir. 1994) (“The jury is the final arbiter of questions pertaining to which witnesses to 

believe, and which part of those witnesses’ testimony to believe.”). 

(b) Valentin’s Identification of Rodriguez. On August 31—two days after Lopez 

supposedly identified Rivera in the August 29 mugbook procedure—the victim Valentin told 

Letrich that the person who shot from point-blank range was an Imperial Gangster, a gang with 

which Rivera was not affiliated. Ex. 37 (PX19B); Ex. 2 at 136-141; Ex. 2 at 217-219. Seeing the 

problem this would cause, Letrich testified that he asked Valentin whether he was sure it was not 

a Latin King, and Valentin confirmed that the shooter was not a Latin King, a street gang with 

which Rivera was affiliated. Ex. 2 at 136-37, 183-84. The victim’s statement that the shooter was 

not a Latin King was never written in any report or disclosed in any other way. Ex. 2 at 145-46; 

Ex. 37 (PX19B); Ex. 35 (PX19) at 58-59. Evidence from the victim that the shooter was not 

affiliated with the gang of which Rivera was a part is alone exculpatory, and it could have been 

used to impeach Lopez. See Kyles, 514 U.S. at 445-50; Jones, 856 F.2d at 995. 

 What was disclosed from the August 31 interaction with Letrich is that Valentin 

identified an Imperial Gangster named Jose Rodriguez as his shooter. Ex. 37 (PX19B). 

Rodriguez was arrested. Ex. 35 (PX19) at 58-59. But documents suppressed in the investigative 

file noted that police were preparing to charge Rodriguez with the Valentin shooting. Ex. 35 

(PX19) at 59. Those suppressed documents were also exculpatory. Kyles, 514 U.S. at 445-50. 

 Moreover, there are no reports or notes in the file memorializing interviews with 

Rodriguez about the crime. Ex. 35 (PX19); Ex. 2 at 177-78; Ex. 3 at 564-68. The testimony at 

trial was that detectives relied on Gang Crimes officers to conduct interviews of gang member 

suspects. Ex. 3 at 574-580, 916-17. In addition, as discussed in greater detail below, gang crimes 

officers considered themselves exempt from report-writing and note-taking requirements. Ex. 14 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 32 of 157 PageID #:40512
20 

at 3349-54, 3360-64. The jury could also reasonably conclude that the interviews with alternative 

suspect Rodriguez, had they been memorialized, would have been exculpatory or at minimum 

could have been used to impeach Guevara and Lopez at trial. Goudy v. Basinger, 604 F.3d 394, 

398-401 (7th Cir. 2010). Again, this is particularly so given that suppressed evidence is 

considered cumulatively. Wearry, 136 S. Ct. at 1007. 

(c) The First Lineup. It was undisputed at trial that Lopez viewed and Rivera stood in a 

lineup conducted in the Valentin investigation on September 15. Ex. 3 at 417; Ex. 8 at 1802-03, 

1807. It was also undisputed that if there had been an earlier lineup, shortly after the shooting, at 

which Lopez had picked someone other than Rivera, then that was information that had to be 

disclosed to the criminal justice system. Ex. 8 at 1774-79; Ex. 5 at 978-84. Given that this was a 

“single finger” criminal case, the revelation that the lone eyewitness had picked someone other 

than Rivera at a first lineup would have ended the prosecution. Ex. 13 at 3100-02; Giglio, 405 

U.S. at 153-54; see also Smith v. Cain, 565 U.S. 73, 75 (2012). 

 Defendants denied that any such first lineup occurred, but there was strong evidence 

otherwise. Rivera testified that on August 31, the day after his arrest, he stood in a live lineup (he 

was asked to come forward, turn to the left and right, etc.). Ex. 2 at 205-06. Three of the fillers in 

that lineup—Ruiz, Villafane, and Olivero—confirmed the same thing, and Villafane and Olivero 

both testified that they recalled the event clearly because it was the only time in their lives that 

they were asked to participate in a lineup procedure by the police. Ex. 5 at 1011-19, 1057-61; Ex. 

15 at 3711-21. Lopez himself confirmed that he participated in two lineups—not one—with the 

first occurring shortly after the shooting. Ex. 7 at 1651; Ex. 21 at 178. Hold papers for Rivera 

and Rodriguez were submitted, which stated that they were being held for a live lineup. Ex. 35 

(PX19) at 57, 59. A GPR listed the names of all participants in the lineup and the August 31 date 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 33 of 157 PageID #:40513
21 

of the lineup. Ex. 35 (PX19) at 64. Photographs depicted each of the participants in the lineup 

against the same background at the police station. Ex. 50 (PX62). A jury plainly could conclude 

that the lineup occurred, and that Defendants’ contention that they had not conducted a lineup 

because they could not find the eyewitness Lopez was not credible and in fact was false. 

 Defendants’ reports state that the first lineup never occurred because they were not able 

to locate Lopez. Ex. 39 (PX19F). The jury was entitled to disbelieve that explanation, given the 

evidence just discussed and because: (1) Lopez was a 12 year old living with his parents, Ex 4 at 

631-32, 698; Ex. 6 at 1309; Ex. 10 at 2449; Ex. 11 at 2463; Ex. 21 at 28-29; (2) Guevara and 

Gawrys readily located Lopez for their September 15 lineup, Ex. 6 at 1304-16; Ex. 11 at 

2540-41; and (3) police testified that they would not have gone to the trouble to set up a lineup 

and get fillers, as they did here, unless the eyewitness had been available, Ex. 3 at 623-28. 

 The fact that the first lineup occurred is also supported by the evidence at trial showing 

that documents memorializing the lineup were suppressed in an investigative file that was never 

turned over to the criminal justice system. Rivera knew he had stood in a first lineup, but the 

GPR and hold forms discussing that lineup were suppressed in the investigative file that was 

never turned over. Ex. 2 at 205-06; Ex. 6 at 1387-89; Ex. 56 (PX269). The only document in the 

official file was the police report asserting that the lineup could not be completed. Ex. 39 

(PX19F). Without this additional evidence that Rivera stood in a first lineup during the Valentin 

investigation, neither prosecutors nor Wadas could determine whether there was a first lineup in 

the case. Ex. 6 at 1399, 1422-23; Ex. 13 at 3100-03, 3131-32. 

 Defendants contend that the first lineup (which they say did not happen) was not 

exculpatory because Lopez believes he selected Rivera in that lineup. Ex. 21 at 80; Ex. 7 at 1653. 

But as discussed above, there was ample evidence that, whomever Lopez picked, it was not 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 34 of 157 PageID #:40514
22 

Rivera. See supra at 4. Moreover, as discussed below, as a matter of policy, the City did not 

document the result of lineups where a filler was picked instead of a suspect. Ex. 5 at 966-1005, 

1095-1111; Ex. 52 (PX150). In cases like this one, where a witness selected a filler, Chicago 

police either reported that no identification had been made or, as here, made no report at all. Ex. 

5 at 997-98, 1002-09; Ex. 52 (PX150). Lopez’s selection of a filler in the first lineup, and the fact 

that no report was made of the result of that lineup, was thus consistent with Chicago Police 

policy. In sum, it was reasonable for the jury to believe Lopez that he had seen multiple lineups 

in the Valentin investigation, but decline, based on other evidence, to accept his belief that the 

person he had picked in the first lineup was Rivera. Kadia v. Gonzales, 501 F.3d 817, 821 (7th 

Cir. 2007) (rejecting “the discredited doctrine of falsus in uno, falsus in omnibus (false in one 

thing, false in all things)”); Branion v. Gramly, 855 F.2d 1256, 1263 (7th Cir. 1988) (noting that 

“[s]elective disbelief, however, is an ordinary incident of trial”). 

 The fact that an undisclosed first lineup was viewed by Lopez in the Valentin 

investigation that did not lead to Rivera being charged is exculpatory without the need for 

additional information. Giglio, 405 U.S. at 153-54; see also Smith, 565 U.S. at 75. Separately, 

due process was violated when Defendants suppressed the documents that would have allowed 

Rivera to show the lineup had taken place. Avery, 847 F.3d at 443-44.10 Finally, Lopez’s 

selection of a filler from the first live lineup is both exculpatory evidence, and a fact that could 

have been used to fatally undermine Lopez’s testimony at trial. Fields, 672 F.3d 505, 517 (7th 

Cir. 2012) (Fields I) (“The constitutional violation occurs when the means by which the 

 10 For reasons similar to those discussed in Avery, Defendants’ argument that Brady was not 

implicated because Rivera and his attorney knew that Rivera had stood in an earlier lineup during the 

Valentin investigation misses the point. The problem for Rivera is that he lacked the ability to prove the 

lineup had taken place, and the Defendants had in their possession evidence showing that it had. Avery, 

847 F.3d at 443-44. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 35 of 157 PageID #:40515
23 

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, 319 F.3d at 302-05. 

(d) Lopez Tells Guevara That Rivera Is the Wrong Guy. Lopez originally told police that 

he was “by [the] store” when he saw the Valentin shooting. By all accounts, that would have 

been too far away to see the shooter, and Lopez could not provide any meaningful physical 

description of what the shooter looked like. See supra at 1. Yet, as of August 29, Lopez had 

supposedly identified Rivera—someone who was both an innocent person and Defendants’ 

suspect—as the perpetrator. See supra at 2. 

 Following the first lineup, investigation ceased entirely until Valentin died on September 

14. The next day, Guevara and Gawrys put together a second lineup. Ex. 22 (PX1A); Ex. 35 

(PX19) at 26-28, 45, 48-51; Ex. 8 at 1699, 1802-06; Ex. 12 at 2672-73, 2689-93; Ex. 15 at 

3536-37, 3567-68. Contrary to Gawrys’s assertion that he was not involved in the second lineup, 

Gawrys appears on multiple police reports in connection with that lineup, and there was no real 

dispute at trial that Gawrys was actively participating in the investigation with Guevara and 

under Mingey’s supervision on September 15. 

 Lopez was brought in for the lineup without his parents. Ex. 7 at 1652; Ex. 8 at 1927. 

Before the lineup, he told a female and a male Latino police officer with an afro, mustache, and 

glasses that Rivera was the “wrong guy,” Ex. 7 at 1655-57; Ex. 21 at 93-96, he told them he did 

not want to identify Rivera, Ex. 7 at 1656; Ex. 59 (DX103) at 8-12, and he told them that the 

shooter had been an Imperial Gangster, Ex. 59 (DX103) at 17; Ex. 60 (DX115) at 3. According 

to Lopez, they would not hear it, and because he was 12 and feeling pressure to do something 

about a friend’s murder, he did the lineup and “identified” Rivera. Ex. 21 at 100-01. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 36 of 157 PageID #:40516
24 

 No one disputes that a statement from the sole eyewitness that Rivera was the “wrong 

guy” is exculpatory and impeachment evidence, and that suppression of that information would 

plainly violate due process. Smith, 565 U.S. at 75. In addition, Defendants properly concede that 

“there was inferential evidence the jury could believe that [Guevara] was the cop Lopez testified 

was present during the ‘recant.’” Doc. 711 at 11.11 That concession warrants denial of Guevara’s 

post-trial motion, without any need to even consider his assertion of the Fifth Amendment. 

 Though Defendants refused to testify about this interaction with Lopez themselves, their 

lawyers now write on their behalf that, when Lopez told Guevara, “That’s not the person. The 

wrong guy, wrong guy, wrong guy,” it was not obvious to Guevara what Lopez meant. See Doc. 

R. 711 at 11 (citing Doc. 580-1 at 96-97) (Lopez testifying that he said “That’s not the person. 

The wrong guy, wrong guy, wrong guy. . . . I just said it was the wrong guy, wrong guy.”); see 

also Ex. 21 at 93-94 (“[I]t’s the wrong guy. It’s the wrong guy.”). In fact, Defendants 

considerably overstate any rational view of the evidence, arguing, “Lopez’s testimony was clear 

and unequivocal that neither the white haired lady nor the cop understood the import of what 

Lopez was trying to say.” R. 711 at 12. There is no such clear and unequivocal evidence 

supporting Defendants’ position. The testimony showed the exact opposite, and Guevara never 

contended that what Lopez had said was ambiguous because he refused to testify about the 

conversation in the first place. Ex. 6 at 1316, 1321; Ex. 9 at 2124-25; Ex. 11 at 2540-42.12

 11 At trial Defendants and every other police witness went to great lengths to keep the jury from 

seeing a photo of Guevara taken around the time of the Valentin investigation, and they all testified that 

they could not remember whether Guevara had an afro, mustache, or glasses at time. Ex. 4 at 734-36; Ex. 

11 at 2472-76; Ex. 6 at 1320; Ex. 11 at 2498-99. Everyone could see that Guevara, who took the stand 

and sat in the courtroom throughout trial, fit the description. And Rivera was eventually able to establish 

through Noon that Guevara in fact had an afro, mustache, and glasses at the time of the Valentin 

investigation, and he introduced a photo of Guevara from the time. Ex. 12 at 2722-27; Ex. 43 (PX33). 

12 Moreover, the conclusion that Guevara understood exactly what Lopez was saying is 

corroborated by Lopez’s statements that Guevara would not accept what he had to say. Ex. 7 at 1656, 

1674; Ex. 8 at 1907-10; Ex. 54 (PX260); Ex. 21 at 93-101; Ex. 59 (DX103) at 8-12. Because Linzer and 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 37 of 157 PageID #:40517
25 

 What Defendants are really arguing (in the absence of any evidence) is that, in their view, 

Lopez’s testimony could have permitted an inference that Guevara might not have understood 

the words that Lopez said. The problem with that argument, of course, is that it depends on an 

implausible inference drawn in the wrong direction. Reeves v. Sanderson Plumbing, 530 U.S. 

133, 150-51 (2000). At this stage, the court does not look for some alternative inference that 

might exonerate Guevara. The only question is whether, when Lopez testified that he told 

Guevara that Rivera was the “wrong guy,” a reasonable jury could have concluded that Guevara 

understood Lopez to be saying that Rivera was not the perpetrator. The answer is easy: that was 

really the only reasonable conclusion available to the jury. 

(e) The 9/16 Report. As discussed, Defendants forfeited any argument that the 9/16 report 

fails to support the due process verdicts by failing to address that report in their briefs. See supra 

at 5. They are also incorrect in their assertion that the Court excluded that entire report as a basis 

for the jury’s verdict, and they failed to request a jury instruction on that issue regardless. See 

supra at 11 & n.5. Though the Valentin “identification” of Rivera was never introduced in the 

criminal case and therefore cannot itself be the basis of a fabrication theory, that “identification” 

certainly can form the basis of a Brady-type due process theory. In addition, there is more in the 

9/16 report—apart from the “identification”— that supports the due process verdict. 

 First, as the prosecutor Victorson acknowledged, evidence that Defendants lied in their 

summary report of the investigation when they wrote that Valentin had identified Rivera on 

September 10 is evidence that could have been used to impeach Guevara at trial, where Guevara 

was one of the State’s two substantive witnesses against Rivera. Giglio, 405 U.S. at 153-54; see 

 

Estes obtained this information from Lopez years later and by asking only open-ended questions, it was 

credible information that the jury could rely upon. In fact, Defendants’ own expert Wixted testified that 

Lopez’s recollection of communicating that Rivera was the “wrong guy” had the hallmarks of a valid 

memory. Ex. 16 at 4003-05, 4041, 4049. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 38 of 157 PageID #:40518
26 

also Smith, 565 U.S. at 75. Defendants claimed that they got an identification of Rivera from 

Valentin on a day that Valentin was essentially comatose. Ex. 42 (PX31A); Ex. 20 at 27-45, 

55-56, 175-178. There were no contemporaneous notes or reports of this purported identification. 

Ex. 8 at 1704-07, 1714-17, 1799-1800. Nor was Rivera arrested after the victim supposedly 

identified him. Ex. 8 at 1799-1806, Ex. 22 (PX1A). Instead, the day after Valentin died, 

Defendants issued a report recounting the alleged identification for the first time. Ex. 22 (PX1A); 

Ex. 8 at 1800; Ex. 42 (PX31A) at 1. When asked at trial, Gawrys did not even deny that Valentin 

had been unconscious at the time of the purported identification, and instead claimed he did not 

recall either way. Ex. 8 at 1708; Ex. 9 at 2132. He also claimed multiple times that he must have 

mistyped the date of the visit with Valentin, Ex. 8 at 1706, 1710-11, before he later tried to walk 

that testimony back, Ex. 8 at 1712-13; Ex. 9 at 2130-31. 

 The jury was reasonable to conclude that the identification had not taken place, and that 

Defendants had fabricated a false police report in order to implicate Rivera in the crime. 

Evidence of this fabrication could have been used to impeach the testimony of Guevara at trial. 

Avery, 847 F.3d at 443-44. Indeed, the prosecutor Victorson acknowledged that, had he been told 

that the part of the 9/16 report about the Valentin “identification” was a fabrication, he would 

have had to disclose that to the criminal defendant. Ex. 13 at 3106-07. 

 Second, perhaps anticipating that the falsity of the Valentin “identification” was going to 

be obvious to the jury, Gawrys took the stand and changed his story from the official version in 

the 9/16 report. At trial, Gawrys admitted that Valentin had not made an identification of Rivera, 

and he contended that Valentin had instead made an “unreliable” identification of Rivera. Ex. 8 

at 1707-08, 1714-16, 1799. But Defendants wrote a report that made no mention of the fact that 

Valentin could not make a reliable identification of Rivera. Ex. 22 (PX1A); Ex. 8 at 1715-16. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 39 of 157 PageID #:40519
27 

Guevara and Mingey, of course, denied none of this. Ex. 22 (PX1A); Ex. 6 at 1310-14; Ex. 11 at 

2488-90. When asked, Gawrys had no explanation for why he misrepresented Valentin’s 

identification as a valid identification, when he knew it was not. Ex. 8 at 1709. He tried to justify 

the lie in the report by saying, “It’s just mistyped on my part.” Ex. 9 at 2081. At no point did 

Gawrys tell any of the detectives that Valentin’s purported identification of Rivera was 

unreliable. Ex. 9 at 2078-81. That fact would have been strong impeachment evidence as well. 

Fields I, 672 F.3d at 517; Newsome, 319 F.3d at 302-05.13

 Third, the 9/16 report contains multiple other pieces of information that are either false 

and were used in Rivera’s criminal case—giving rise to a fabrication theory—or that are false 

and could have been used to impeach Guevara or Lopez—giving rise to a suppression theory. 

For instance, the report states that Noon, Guzman, Sparks, and Zacharias located the witness 

Lopez for the first time on August 29, Ex. 22 (PX1A), when in fact at trial everyone admitted 

that Defendants had interacted with Lopez starting on August 27. Ex. 4 at 674-75; Ex. 8 at 

1732-44; Ex. 11 at 2691-92; Ex. 12 at 2762-64. The report claims that Lopez was brought to 

Gang Crimes North, Ex. 22 (PX1A), another fact that all at trial agreed was false, Ex. 8 at 

1750-51, 1756-57; Ex. 12 at 2765-66. The report claims Rivera agreed voluntarily to come in for 

a lineup on September 15 and was read his Miranda warnings, Ex. 22 (PX1A), even though 

Rivera was arrested on the street and forced to stand in a lineup without any waiver of his rights, 

Ex. 2 at 208-11. The report states that Rivera was placed in the September 15 lineup and 

identified by Lopez, Ex. 22 (PX1A); Ex. 35 (PX19) at 26-28, when in fact Lopez said Rivera 

was the wrong guy, Ex. 7 at 1655-1657; Ex. 21 at 93-96. 

 13 If one credits Gawrys’s story, then in addition to having impeachment value this evidence is 

exculpatory on its face. Rivera could have used the evidence that the only other witness to the crime—one 

much closer to the perpetrator than Lopez had been—could not reliably identified Rivera as the shooter. 

Kyles, 514 U.S. at 445-50. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 40 of 157 PageID #:40520
28 

 Finally, in its final paragraph, the report states that, after the September 15 lineup, Lopez 

looked at a photograph of Rodriguez, who had been identified by Valentin after the shooting, and 

excluded him as a perpetrator. Ex. 22 (PX1A). Gawrys admitted that showing isolated photos of 

suspects in the manner described was improper. Ex. 8 at 1852. Gawrys was also forced to admit 

on the stand, given the differences between the margins of that final paragraph of the report and 

the rest of the report, as well as the different typeface in the last paragraph, that the final 

paragraph appeared to have been added on a different typewriter after the fact. Ex. 22 (PX1A); 

Ex. 8 at 1830-55.14 By Gawrys’s own admission, this too was improper. Ex. 9 at 2084. But 

Defendants had to exclude a potential suspect who had been identified by Valentin. Ex. 4 at 

717-20; Ex. 8 at 1833, 1844-52. Problematically for them, Lopez did not remember ever being 

shown these photos by Defendants. Ex. 8 at 1845-52; Ex. 16 at 3950; Ex. 21 at 177. Taken 

together, there is nothing of substance in the 9/16 report that is true. 

 Mingey signed off on the false 9/16 report. Ex. 22 (PX1A); Ex. 8 at 1853-56. When 

asked about false statements in the report, Defendants had no explanation, Ex. 8 at 1706-17, 

1781-82, or refused to testify, Ex. 6 at 1310-14; Ex. 11 at 2488-90. The 9/16 report could have 

been used at trial to prove Rivera’s innocence, to impeach Guevara, or to impeach Lopez. In 

addition, the report was a fabricated account of an entire investigation, which ended up repeated 

in the felony minutes approving the charges against Rivera, Ex. 41 (PX19I), and which state 

prosecutors relied upon to pursue the criminal case against Rivera, Ex. 11 at 2647-49; Ex. 13 at 

3098. If prosecutors had learned that the investigation was a frame job, they would have dropped 

the charges. Ex. 11 at 2637-39, 2646, 2664-65, 2674-79; Ex. 13 at 3098-3102. 

 14 This led to a strange exchange where Gawrys’s own counsel then questioned him about 

“hypothetical” reasons he might have had to change typewriters while writing the report. Ex. 9 at 

2038-39, 2054-56. Gawrys denied there would have been a good reason to do so. Ex. 9 at 2039. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 41 of 157 PageID #:40521
29 

(f) Suppressed Investigative Files. In 2010, during Rivera’s post-conviction proceedings, 

a Valentin investigative file that had been withheld was disclosed for the first time. Ex. 9 at 

2202-04; Ex. 14 at 3292-95; Ex. 6 at 1403-04. Rivera’s criminal defense attorney, now-Judge 

Wadas, testified that he had carefully preserved his original Rivera case file over the years, 

because he knew that one day this case would “come back”. Ex. 6 at 1366-67. A comparison of 

Wadas’s file with the withheld investigative file revealed that Wadas never received a number of 

important documents from the latter. Ex. 55 (PX268); Ex. 56 (PX269). 

 Wadas had asked for the complete file in pre-trial criminal discovery, Ex. 45 (PX39); the 

prosecutor Victorson testified that he would have given Wadas everything that the Chicago 

Police Department provided to him, Ex. 13 at 3109-10; and both Wadas and Victorson testified 

that as a matter of practice they would ensure that they obtained all police files in discovery, and 

that they had no reason to think that they would have kept any police files from one another, Ex. 

13 at 3103-15. There was no real dispute at trial that Wadas had not received the complete 

Valentin investigative file that had come to light in 2010.15

The documents in the investigative file that were not handed over to the criminal justice 

system at the time Rivera was convicted included: (1) a GPR reporting that Lopez said he was 

far away “by store” at the time of the shooting, Ex. 32 (PX12); (2) an August 31 GPR 

memorializing the first lineup, Ex. 33 (PX14); (3) a hold form for Jacques Rivera, showing that 

he had been held overnight to participate in a first lineup, Ex. 26 (PX6); (4) a hold form for Jose 

Rodriguez, which showed that he was held for the same lineup, that the lineup would be viewed 

by the eyewitness, and that Rodriguez would be charged with the crime, Ex. 29 (PX9); (5) the 

 15 Defendants contended that Wadas might have misplaced parts of his file over the years, but 

there was no reliable evidence that was the case, and in fact Wadas’s files contained precisely the police 

reports contained in the City’s official permanent retention file. See Ex. 48 (PX43A); Ex. 58 (DX3). The 

jury was free to reject Defendants’ speculation, Harvey, 377 D.3d at 712, and this Court must reject that 

speculation at this stage, Passanati, 689 F.3d at 659. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 42 of 157 PageID #:40522
30 

investigative file inventory, showing the materials that were not turned over, Ex. 36 (PX19A); 

and (6) an August 30 arrest report showing that Guevara had arrested Rivera that day, Ex. 25 

(PX5); see also Ex. 55 (PX268); Ex. 56 (PX269). Wadas testified that he did not receive these 

materials. Ex. 6 at 4103-12. Each one of these documents independently supported the due 

process theories discussed above. 

In addition, the investigative file inventory in the suppressed file showed that there were 

two additional GPRs—one from August 27 and one from August 28, the critical first days of the 

investigation—which were not only suppressed at the time of Rivera’s trial, but which are 

missing to this day. Ex. 36 (PX19A); Ex. 35 (PX19). At some point they were removed from the 

file, though no one could explain why they might be taken or where they had gone. Ex. 4 at 

758-65; Ex. 15 at 3563-64. There was testimony that a missing police report is an extremely rare 

event, which might not occur during an entire Chicago Police career. Ex. 4 at 756-58. 

Finally, the files containing notes and reports written by Gang Crimes officers during the 

Valentin investigation were also suppressed. Gang Crimes officers testified that they took notes 

and wrote reports during investigations. Ex. 8 at 1732, 1796-99; Ex. 12 at 2735-41; Ex. 14 at 

3333-40, 3349-54, 3362-64, 3425-29. Noon testified that he wrote a major incident report on the 

Valentin shooting. Ex. 12 at 2735-41. Defendants interacted with Lopez on multiple occasions, 

arrested Rivera twice, and interacted with Valentin, all of which would have generated notes and 

reports. See Ex. 8 at 1732. The jury heard testimony that Gang Crimes officers were required to 

fill out daily activity summaries, reporting pertinent investigative information on a form at the 

conclusion of each shift. Ex. 14 at 3333-37, 3345; Ex. 14 at 3291-92. The mugbooks from which 

Lopez purportedly made an identification were kept by Gang Crimes officers. Ex. 22 (PX1A); 

Ex. 8 at 1885-86. Files were generated by Gang Crimes officers for each case, and there was 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 43 of 157 PageID #:40523
31 

nothing to suggest that the Valentin case was an exception. Ex. 14 at 3421-23. After Rivera’s 

conviction, the Gang Crimes files were moved from the station where Defendants were based to 

Maxwell Street, after which they disappeared. Ex. 14 at 3423-25. 

 The jury could reasonably infer from Defendants’ suppression of exculpatory evidence 

discussed above that the same Defendants suppressed these Valentin investigative files, which 

contained key investigative documents contradicting their official theory of the case. As 

discussed, Defendants authored and approved a final report in the investigation that was 

crammed full of false information, and they placed that report in an investigative file that went 

missing for years. Ex. 22 (PX1A); Ex. 4 at 766, 771-72; Ex. 9 at 2202-04. In addition, Guevara 

and Gawrys were the main point of contact for prosecutors involved in the criminal case, and the 

prosecutors relied on police officers to provide complete files. Ex. 41 (PX19I); Ex. 12 at 

2773-75; Ex. 8 at 1700; Ex. 53 (PX154I). Guevara testified at the grand jury and trial. Ex. 44 

(PX35); Ex. 14 at 3384-85; Ex. 6 at 1337-40. Accordingly, it was perfectly reasonable to infer 

that these Defendants had possession of or access to the suppressed Valentin investigative files at 

the pertinent points in time. Desert Palace, 539 U.S. at 100. 

 In addition—and entirely consistent with this theory—the jury could also have 

reasonably concluded that the City’s official policies prevented these Valentin investigative files 

from reaching the criminal justice system. Those theories are discussed in more detail below, in 

relation to the City’s Monell arguments. 

 3. None of the Individual Defendants Can Escape Liability 

 In their Rule 50 motion, the three individual Defendants each assert repeatedly, and 

without support, that they were not sufficiently engaged in the Valentin investigation to be held 

liable, and that they were not involved in the particular events at issue. Doc. 711 at 4-13. Again, 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 44 of 157 PageID #:40524
32 

Defendants’ arguments are limited to the August 27 identification,” the first lineup, and the 

September 15 Lopez statement that Rivera was the wrong guy—Defendants ignore their 

involvement in all of the other fabrications and suppressions discussed. But that aside, the trial 

record belies their argument that they were uninvolved. 

 It was Guevara who first showed Lopez the photo of Rivera on August 27, Ex. 35 (PX19) 

at 9-10; PX5; Ex. 12 at 2760-67; Ex. 6 at 1277-79, 1296, 1298; Ex. 11 at 2486-87; 2509-10; Ex. 

8 at 1707-1704; 1766-72, two days before Rivera was picked from a mugbook on August 29, Ex. 

22 (PX1A). At trial, when confronted with the fact that Lopez had been shown Rivera’s photo on 

August 27 in his kitchen, two days before Rivera was picked form a mugbook on August 29, 

Gawrys tried to disavow the date and location of the mugbook identification written in his report, 

claiming that both were typos. Ex. 8 at 1739-43, 1751, 1756, 1782. 

 Guevara arrested Rivera on August 30, 1988, and submitted papers to hold Rivera for a 

lineup. Ex. 25 (PX5); Ex. 26 (PX6); Ex. 6 at 1305-06. The jury could infer that Gawrys 

participated in that arrest. Ex. 2 at 202; Ex. 8 at 1693. Guevara participated in the August 31 first 

lineup. Ex. 33 (PX14); Ex. 27 (PX7); Ex. 30 (PX10); Ex. 6 at 1306-10. Gawrys could not deny 

that he participated as well. Ex. 23 (PX3); Ex. 2 at 202-03; Ex. 8 at 1772, 1693. 

 Guevara and Gawrys obtained the unreliable “identification” of Rivera from Valentin at 

the hospital on September 10, and they misrepresented the nature of that identification to all 

involved in the criminal justice system. Ex. 22 (PX1A); Ex. 8 at 1704-16. 

 Guevara and Gawrys are listed as participating in the second lineup, in which Rivera was 

purportedly identified, on the evening of September 15. Ex. 40 (PX19G); Ex. 35 (PX19) at 

26-28; Ex. 6 at 1314-21; Ex. 11 at 2540-42; Ex. 8 at 1699. Guevara and Gawrys authored, 

Gawrys typed, and Mingey signed and approved the summary 9/16 report, rife with false facts 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 45 of 157 PageID #:40525
33 

about the investigation and making the case against Rivera. Ex. 22 (PX1A); Ex. 6 at 1311-13, 

1326-29; Ex. 11 at 2501-11; Ex. 8 at 1699-1700.16 They arrested Rivera on September 15, with 

Guevara signing the arrest report. Ex. 23 (PX3); Ex. 35 (PX19) at 26-28; Ex. 8 at 1802-05. 

 Guevara and Gawrys’s names and phone number appear as the first two prosecuting 

witnesses on the felony minutes, which reiterate their 9/16 report. Ex. 41 (PX19I); Ex. 11 at 

2647-52; Ex. 12 at 2698-2703; Ex 12 at 2773-75; Ex. 12 at 2726-33; Ex. 15 at 3564-66. Though 

Gawrys could not recall speaking with the felony review attorneys who approved the charges 

against Rivera, Ex. 9 at 2085, he and Guevara were the lead witnesses on the report, and no one 

else admitted to being involved in the charging decision. Moreover, Guevara testified against 

Rivera at the grand jury and at trial. Ex. 44 (PX35); Ex. 14 at 3384-85; Ex. 6 at 1337-40. 

 At all times, Gawrys was Guevara’s partner during the investigation, and Mingey 

supervised them both. Ex. 8 at 1693; Ex. 6 at 1276; Ex. 11 at 2485-86; 2491-92; Ex. 6 at 

1328-29. Gawrys testified that he and Guevara, working together, “got the credit” for solving the 

Valentin homicide and arresting Rivera. Ex. 8 at 1696. In addition, he testified that Mingey was 

kept apprised of the steps in the investigation. Ex. 8 at 1853. According to Gawrys, it was 

Mingey’s job to keep an eye on everything, and he knew what was happening in the 

investigation. Ex. 8 at 1853-54. There was ample evidence of the individual Defendants’ 

involvement in misconduct during the Valentin investigation. See Jones, 856 F.2d at 992-93 (a 

supervisor in these circumstances who knows about misconduct and facilitates it, approves it, 

condones it, or turns a blind eye has acted knowingly and is liable for due process violations). 

 In light of (and in addition to) all of this evidence, Guevara and Mingey asserted the Fifth 

repeatedly in response to questions. The jury was instructed that their decision to decline to 

 16 The 9/16 report was submitted just after midnight on September 15-16, 1988. Gawrys testified 

they deviated from protocol when he dated and time-stamped Mingey’s approval signature on the first 

page, and when Mingey failed to date and time-stamp his signature on the second page. Ex. 8 at 1855-56. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 46 of 157 PageID #:40526
34 

answer questions on the ground that their answers would incriminate them could give rise to an 

inference that their answers would be bad for them, Doc. 671 at 21, and both refused to answer 

questions on a range of subjects central to their misconduct during the Valentin investigation, 

including direct questions about whether they framed Rivera, Ex. 6 at 1268, 1271-72, and 

whether they turned a blind eye to the fact that Rivera was being framed, Ex. 11 at 2484-85. It 

was certainly Guevara’s and Mingey’s prerogative to protect themselves against a potential 

prosecution by invoking the Fifth, but having done so they are in no position to ask this Court to 

second-guess the jury’s decision based on evidence that they would not even testify about. 

* * * 

 In sum, there was more than ample evidence to support the jury’s due process verdict 

against Guevara, Gawrys, and Mingey. In fact, the evidence of their liability was overwhelming, 

and there was very little evidence on the other side. 

 B. The City’s Argument That the Suppressed Investigative Files Were 

 Insufficient to Prove A Due Process Violation Similarly Lacks Merit 

 The City makes a two-page argument in its Rule 50(b) motion that the suppressed 

Valentin investigative files cannot support a due process verdict. Doc. 707 at 2-3. The City fails 

to even address what was in those investigative files, and their arguments otherwise lack merit. 

1. The City Has Forfeited Any Argument About Investigative Files 

 The City has doubly forfeited the argument that suppressed Valentin files do not support 

a due process verdict. First, the argument was forfeited when the City failed to include it in its 

Rule 50(a) motion, as explained below. See supra at 78. But in addition to that, the City in its 

Rule 50(b) motion limits its discussion of suppressed Valentin investigative files to just three 

pieces of paper contained in one of the suppressed files: (1) the August 27 rap sheet; (2) the GPR 

reporting that Lopez was by the store; and (3) the investigative file inventory sheet. Doc. 707 at 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 47 of 157 PageID #:40527
35 

2-3. The City ignores all other evidence suppressed in Valentin investigative files. Accordingly, 

the City has not sufficiently set out an argument that the Valentin investigative files were not 

exculpatory. Nonetheless, Rivera addresses the City’s arguments here for completeness. 

 2. The Suppressed Files Were Exculpatory 

 The City contends that the August 27 rap sheet found in the suppressed investigative file 

is not exculpatory evidence because Lopez made his mugbook identification of Rivera that day. 

As discussed at length already, that is a theory that the jury certainly did not have to accept, 

given that it is contradicted by a great volume of evidence. 

 Citing testimony from Wadas, the City also argues that the suppressed GPR reporting that 

Lopez was by the store when he saw the shooting was not exculpatory because it would not have 

done much to undermine Lopez’s testimony. But Wadas did not suggest that this evidence was 

unimportant. Ex. 6 at 1404-07; Ex. 7 at 1464-65, 1607. On the contrary, it was important, given 

that Lopez put himself just feet from the shooting at Rivera’s criminal trial, staring the shooter 

directly in the face. Ex. 16 at 3930-31. The jury was free to conclude it would have materially 

undermined Lopez’s testimony if the criminal court had been told that Lopez was in fact 200 feet 

away—a distance at which it is exceedingly difficult to make out facial features (as the jury 

observed personally during the hallway demonstration). Ex. 9 at 2142-44; Ex. 32 (PX12); Ex. 3 

at 589-94; Ex. 9 at 2142-44; see also Kyles, 514 U.S. at 445-50; Jones, 856 F.2d at 995. 

 Focusing on the GPRs from August 27 and August 28 that have gone completely missing 

from the file, the City argues that these cannot form the basis of a due process claim because no 

one knows what those documents said. According to the City’s theory, as long as investigative 

documents are completely destroyed, rather than suppressed in a file and later discovered, then 

there can be no constitutional claim for suppression of evidence. That is not the law. See, e.g., 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 48 of 157 PageID #:40528
36 

Armstrong v. Daily, 786 F.3d 529, 550 (7th Cir. 2015) (“Under [the defendant police officer’s] 

argument, a reasonable police investigator could have believed in 1980 that if he possessed 

exculpatory evidence, he had an obligation to disclose it to the defense unless he deliberately 

destroyed it first. No reasonable police officer or prosecutor could have believed that in 1980.”). 

Moreover, the jury was certainly permitted to draw inferences based on other evidence that 

reports describing the first two days of the investigation went missing because they contradicted 

the official story that Rivera was guilty. Desert Palace, 539 U.S. at 99. 

 3. Wadas Could Not Have Discovered the Files By Asking Harder 

 In a paragraph, the City contends it was Wadas’s fault that he did not get the suppressed 

Valentin investigative files, and that Wadas was not reasonably diligent in his file collection. 

Doc. 707 at 3. In other words, the City contends that the files were never suppressed at all. 

 That argument falls apart completely in light of the evidence actually introduced at trial. 

Wadas filed a formal discovery request. Ex. 45 (PX39); Ex. 6 at 1375-78. That request was 

described as standard by Wadas, Victorson, and Defendants’ own experts. Ex. 6 at 1375-76; Ex. 

13 at 3104-5; Ex. 15 at 3682-4. Victorson testified further that his normal practice would have 

been to obtain all of the files from the Chicago Police Department that he could get and to give 

them to Wadas. Ex. 13 at 3103-15. Neither doubted for a second that Victorson would not have 

held anything back. Ex. 6 at 1388-89; Ex. 7 at 1602-05; Ex. 13 at 3104-05, 3109-10. Moreover, 

Wadas did receive files from the police in response to his request, which were kept in his file 

following a copy of the request he had sent. Ex. 46 (PX40); Ex. 47 (PX43). No one had reason to 

doubt that the file produced was incomplete, Ex. 6 at 1382-84; Ex. 13 at 3110, and no one had 

any reason to suspect that additional investigative materials were being suppressed in some 

clandestine file, Ex. 6 at 1389; Ex. 13 at 3103-04. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 49 of 157 PageID #:40529
37 

 Considering the context more broadly, the jury also heard evidence from which they 

could reasonable conclude that Rivera was framed and that Defendants did not want Rivera to 

receive files contradicting the official story of the investigation. In such a circumstance, the 

argument that a defense attorney could have done something more to find the file is a fiction. 

Wadas had no ability to go into the Chicago Police Department to rummage around for secret 

files that he already asked for. Ex. 7 at 1601-05. In addition, the Monell evidence, discussed 

below, demonstrated that as a matter of policy the City had no mechanism in place to produce 

responsive files, which fatally undermines the City’s argument that the files were readily 

available to Wadas if only he had asked differently. See infra at 78. 

 As briefed at length before trial, the reasonable diligence doctrine provides that evidence 

is not suppressed in the constitutional sense if it is evidence that the defendant or defense 

attorney could find on their own. See, e.g., Socha v. Richardson, 874 F.3d 983, 988-89 (7th Cir. 

2017); United States v. Walker, 746 F.3d 300, 307 (7th Cir. 2014); United States v. White, 970 

F.2d 328, 337 (7th Cir. 1992). The question is whether, as a factual matter, the defense missed 

something available to it. Given the evidence just discussed, the jury was more than reasonable 

to find that the suppressed investigative files were not available to Wadas or to Rivera. 

 C. Defendants’ Arguments That There Is Insufficient Evidence to Support 

 Plaintiff’s Other Claims Lack Merit 

 Defendants devote one paragraph each to the jury’s verdict on Rivera’s conspiracy, 

failure to intervene, and intentional infliction of emotional distress claims (IIED). Doc. 711 at 

13-14. As discussed above, Guevara and Mingey forfeited any argument on these claims by 

failing to include them in their Rule 50(a) motion. See supra at 10. In addition, all Defendants 

have now forfeited any challenge to those claims other than the single argument asserted in their 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 50 of 157 PageID #:40530
38 

Rule 50(b) motion—namely, that because there is no showing of a constitutional violation, they 

cannot be held liable for conspiracy, failure to intervene, or IIED. Doc. 711 at 13-14. 

 Rivera has discussed at length already the ways in which his constitutional rights were 

violated, and so Defendants’ argument for setting aside the conspiracy and failure to intervene 

verdicts must be rejected as well. By failing to discuss conspiracy or failure to intervene in any 

meaningful way, Defendants have conceded the point that there was sufficient evidence to find 

that they joined a conspiracy concerning the constitutional violations already discussed, Doc. 671 

at 24;17 and they have conceded the point that they knew the violations were taking place and 

failed to act in order to stop them, Doc. 671 at 25. 

 With respect to the jury’s verdict against Guevara on Rivera’s IIED claim, Defendants’ 

argument is even less developed—they simply state that because the claim is based on the same 

misconduct as the other claims, it cannot succeed if the other claims do not succeed. Doc. 711 at 

14. Again, Defendants are wrong about the viability of Rivera’s other claims, but their argument 

is also fatally undeveloped. There is no discussion of why an IIED claim under Illinois law is 

necessarily subject to the same fate as section 1983 claims. The argument is therefore 

additionally forfeited by Defendants’ failure to develop it. United States v. Dunkel, 927 F.2d 955, 

956 (7th Cir. 1991); Kelso v. Bayer, 398 F.3d 640, 643 (7th Cir. 2005). 

 It also lacks merit. As discussed above, Guevara manufactured evidence to prosecute 

Rivera for a crime that Rivera did not commit, and he withheld other evidence that would have 

allowed Rivera to defend himself. As a result, Rivera was sent to die in prison, and he spent 21 

years there fighting for his freedom. A tort that turns on the intentional infliction of a “high 

 17 In its post-trial ruling, the Court discussed Gawrys’s conspiracy liability. Doc. 676 at 6-9. 

Defendants do not dispute the Court’s analysis whatsoever. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 51 of 157 PageID #:40531
39 

probability” of “severe emotional distress” is a perfect fit for that misconduct, and the evidence 

was more than sufficient to support liability. Fox v. Hayes, 600 F.3d 819, 842-43 (7th Cir. 2010). 

 D. Guevara Is Not Entitled to Qualified Immunity 

Despite not denying any of his wrongdoing during the Valentin investigation, Guevara 

contends in his Rule 50(b) motion that he is entitled to qualified immunity for suppressing 

Lopez’s September 15 statement that Rivera was the “wrong guy.” Doc. 711 at 14-15. As 

discussed, Guevara forfeited this argument by failing to raise it earlier. See supra at 10. 

Regardless, Guevara’s argument for immunity should be rejected. Guevara argues that 

being told by the sole eyewitness that the criminal defendant was the “wrong guy” is the sort of 

“tidbit” that can only be said to have assisted the criminal defendant with the benefit of 

hindsight. Doc. 711 at 15 (citing Newsome v. James, 260 F.3d 824, 825 (7th Cir. 2001), which 

denied qualified immunity on far less obviously exculpatory evidence). 

First, the position is plainly untenable. Numerous cases decided long before Rivera’s 

prosecution made completely clear that police officers could not suppress information about the 

conduct of an identification procedure or key information that could be used to impeach an 

eyewitness. Giglio, 405 U.S. at 153-54 (deciding in 1972 that evidence must be disclosed when it 

would impeach the only eyewitness connecting the defendant to the crime); Newsome, 256 F.3d 

at 752-53 (concluding that it was clearly established in at least 1979 that police could not 

suppress information about the conduct of a lineup, and noting that “[t]he Brady principle was 

announced in 1963, and we applied it in Jones to affirm a hefty award of damages against 

officers who withheld exculpatory information in 1981”). 

Second, Guevara fails to address all of the other fabrications and suppressions of 

evidence discussed above, which themselves were clearly established as unconstitutional in 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 52 of 157 PageID #:40532
40 

1988. See id.; Fields II, 740 F.3d at 1114 (concluding that it was “established law by 1984 

(indeed long before)” that fabricating evidence for use against a criminal defendant violated due 

process) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 215–

16 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 112–13 (1935)). Given this record, not to 

mention his Fifth Amendment assertions, Guevara is plainly not entitled to good-faith immunity. 

 E. The Jury’s Verdict for McLaughlin Does Not Create An Inconsistent Verdict 

 Defendants argue for the first time in their Rule 50(b) motions that the jury’s verdict for 

McLaughlin renders them not liable in two respects: (1) the individual Defendants argue that 

they cannot be liable for suppressing the first lineup given that verdict, Doc. 711 at 9-10; and (2) 

the City argues that it cannot be liable for suppressing Valentin investigative files because 

McLaughlin was not found liable, Doc. 707 at 4-5. These arguments are forfeited and lack merit. 

 1. Defendants Failed to Properly Raise These Arguments 

 Though the Seventh Circuit has not definitively ruled on the question, it has observed in 

numerous cases that nearly all federal courts dictate that a party’s failure to lodge a 

contemporaneous objection to an inconsistent verdict before the jury is discharged constitutes 

forfeiture of the argument. Fox v. Hayes, 600 F.3d 819, 844 (7th Cir. 2010) (citing Oja v. 

Howmedica, Inc., 111 F.3d 782, 790 (10th Cir. 1997); Home Indem. Co. v. Lane Powell Moss & 

Miller, 43 F.3d 1322, 1331 (9th Cir. 1995)); see also Kosmynka v. Polaris Indus., 462 F.3d 74, 

83 (2d Cir. 2006) (“It is well established that a party waives its objection to any inconsistency in 

a jury verdict if it fails to object to the verdict prior to the excusing of the jury.”) (collecting 

cases); Pearson v. Welborn, 471 F.3d 732, 739 (7th Cir. 2006); Carter v. Chicago Police 

Officers, 165 F.3d 1071, 1079–80 (7th Cir. 1998) (citing Jacobs Mfg. Co. v. Sam Brown Co., 19 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 53 of 157 PageID #:40533
41 

F.3d 1259, 1266 (8th Cir.1994)). Defendants raised no objection regarding the consistency of the 

jury’s verdict before the jury was discharged, and so they cannot raise such arguments now. 

 2. The Jury’s Verdicts Are Not Inconsistent 

 Even if the Court chooses to address Defendants’ inconsistency arguments, they do not 

hold water. Inconsistency in verdicts only requires a new trial when no rational jury could have 

returned the verdicts. Pearson, 471 F.3d at 739. The question is whether a verdict in favor of one 

defendant necessarily makes a verdict against the others impossible. Thomas, 604 F.3d at 304-05 

(citing Los Angeles v. Heller, 475 U.S. 796, 798-99 (1986)). “Any plausible explanation for the 

verdict precludes reversal.” Fox v. Hayes, 600 F.3d 819, 844 (7th Cir. 2010). “If possible, [the] 

court must reconcile apparently inconsistent verdicts, rather than overturn them.” Deloughery v. 

City of Chicago, 422 F.3d 611, 617 (7th Cir. 2005); see also Freeman v. Chicago Park Dist., 189 

F.3d 613, 615 (7th Cir.1999) (“[J]ury verdicts must be interpreted so as to avoid inconsistency 

whenever possible.”). The verdict for McLaughlin is not remotely—let alone 

necessarily—inconsistent with the jury’s due process verdicts against the other Defendants. 

 With respect to the individual Defendants, their argument about inconsistency is limited 

to whether they can be liable for suppressing the August 31 first lineup given the verdict 

rendered for McLaughlin. But the jury’s due process verdicts against Guevara, Gawrys, and 

Mingey are firmly supported by a volume of evidence completely unrelated to the August 31 

lineup, as discussed above, which means that there is no way that the verdicts could necessarily 

be in conflict. Thomas, 604 F.3d at 305. Moreover, even focusing just on the August 31 lineup, a 

verdict against Guevara, Gawrys, and Mingey, but for McLaughlin, is not necessarily irrational. 

The jury could have found for McLaughlin for any of number of reasons, including: believing 

her that if a lineup occurred on August 31, she was not part of it; that she was not engaged in the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 54 of 157 PageID #:40534
42 

conspiracy with Guevara, Gawrys, and Mingey; or that she was forced off of the investigation. 

Ex. 3 at 541-42, 571-75, 578-81. 

 Similarly baseless is the City’s argument that it cannot be liable for documents 

suppressed in the Valentin investigative files because McLaughlin had knowledge of those 

documents and was found not liable for suppressing them. First, McLaughlin, a detective, had 

nothing to do with the suppression of the Gang Crimes reports and notes discussed above. 

Second, the jury could have believed McLaughlin that she was not involved in the investigation 

after August 31, Ex. 3 at 572-74; Ex. 32 (PX12); Ex. 35 (PX19) at 29-33, 68-69, that she had put 

her reports in a file where they belonged, Ex. 3 at 549-54, and that someone else—like Guevara 

or Gawrys—suppressed the investigative files. 

 Third and most importantly, the jury could have believed that the City’s policies 

governing production of investigative files, which are discussed in more detail below, see infra at 

78, were responsible for the suppression of the Valentin investigative files, without any fault on 

the part of McLaughlin. In other words, that a file properly kept by police officers was not 

transmitted to the criminal justice system because of the City’s policies. Municipal liability may 

attach without any determination that a particular individual is at fault. Thomas, 604 F.3d at 293. 

IV. THE INDIVIDUAL DEFENDANTS’ RULE 59 MOTION HAS NO MERIT 

 Where Defendants challenge evidentiary rulings, the road is uphill. Cruz, 275 F.3d at 

589. Such rulings receive “special deference,” Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th Cir. 

1997), and there is no abuse of discretion “unless the court’s decision was based on an erroneous 

conclusion of law or the record contains no evidence on which the court rationally could have 

based its decision,” Young v. James Green Mgmt., 327 F.3d 616, 621 (7th Cir. 2003). Even an 

erroneous ruling does not warrant relief, unless it “violated the objecting party’s substantial 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 55 of 157 PageID #:40535
43 

rights,” Maurer v. Speedway, 774 F.3d 1132, 1135 (7th Cir. 2014), and “affected the outcome of 

the case,” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 868 (7th Cir. 2005). 

 Without contemporaneous objections, challenges to such rulings are waived. Christmas, 

682 F.3d 632, 640 (7th Cir. 2012); Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 

2006). A complaint about the exclusion of evidence is preserved only if an offer of proof shows 

the grounds of admissibility, what the evidence would prove, and why the evidence is 

significant. Mason v. Southern Ill. Univ., 233 F.3d 1036, 1043 (7th Cir. 2000). 

A. The Court Did Not Abuse Its Discretion When It Permitted Rivera to Call 

Defendants As Witnesses, Notwithstanding Their Intention To Assert Fifth 

Amendment Privileges 

 At bottom, Defendants are complaining about the fact that the Court allowed their 

opponent to do something no more controversial than calling them to the witness stand and 

asking them questions. Defendants believe this decision was reversible error because they had 

previously advised the Court that they would assert privileges in response to questions that might 

implicate them in criminal activities. Doc. 713 at 4-18. The law does not support their position. 

 1. The Law Does Not Allow A New Trial on This Basis 

 As Defendants correctly note, Rule 59 provides that “a new trial may be granted for any 

reason for which a new trial has heretofore been granted in an action at law in federal court.” 

FED. R. CIV. P. 59(a)(1)(A). Unfortunately for Defendants, that language forecloses relief here. 

No court has ever awarded a new trial in any civil case—ever—on the grounds that one side 

called opposing parties to the witness stand to answer questions. That remains true even for 

parties called to the witness stand who announce their intention to assert a privilege rather than 

answering questions. While a reviewing court might have affirmed this Court’s exercise of 

discretion if the Court had handled that witness testimony differently, no court has ever held that 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 56 of 157 PageID #:40536
44 

a trial court committed an error of law by declining to shield the privilege asserter from the need 

to take the stand. That is the reason that Defendants in their entire brief do not point to a single 

case where a court decided that it was a reversible legal error to permit a civil defendant 

asserting privileges to be questioned at trial. See United States v. Dunkel, 927 F.2d 955, 956 (7th 

Cir. 1991) (noting that it is the responsibility of parties, not the courts, to identify legal authority 

supporting their position). On that ground alone, Rule 59 relief is by its plain terms not available. 

2. This Court Did Not Abuse Its Discretion By Permitting Rivera to Call 

Guevara and Mingey to the Witness Stand 

 Guevara secured a tremendous advantage for himself by sitting out discovery in this case. 

In so doing, he blocked Plaintiff from investigating facts to prove his case and meet his burden. 

The law permitted Guevara to do so because he has a constitutional right to avoid incriminating 

himself. However, having availed himself of that privilege, Guevara was not entitled to press his 

advantage even further and bar Plaintiff from even calling him to the witness stand. 

The law does not allow that. Instead, unlike in criminal cases, the law provides that in 

civil cases adverse inferences may be drawn against a party asserting the Fifth. Baxter v. 

Palmigiano, 425 U.S. 308, 318 (1976) (“[T]he Fifth Amendment does not forbid adverse 

inferences against parties to civil actions when they refuse to testify[.]”); Empress Casino Joliet 

Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 835 (7th Cir. 2016) (“The Fifth Amendment 

allows adverse inference instructions against parties in civil actions.”). 

In most circumstances, the party must testify at trial in order for the inference to be 

drawn. So, in Hillmann v. City of Chicago, a district court determined that a new trial was 

warranted because defendants were “wholly excused . . . from testifying based on blanket 

assertions of their Fifth Amendment privilege,” and the Seventh Circuit affirmed saying, “That 

ruling correctly understands how the privilege works in this situation; in a civil case, the jury is 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 57 of 157 PageID #:40537
45 

permitted to hear evidence of a witness’s invocation of the privilege and may draw an adverse 

inference from it.” 834 F.3d 787, 793 (7th Cir. 2016); see also Empress Casino, 831 F.3d at 835 

(holding that the jury could properly consider a witness’s prior invocation of the Fifth 

Amendment where credibility was at issue); Harris v. City of Chicago, 266 F.3d 750 (7th Cir. 

2001) (reversible error where trial court refused to permit impeachment of a witness with prior 

Fifth Amendment assertions). 

Moreover, a party must take the stand in a civil case, even if taking the Fifth, because 

doing so is the only way for the jury to evaluate the party’s demeanor when answering questions. 

It is a deeply rooted concept that the manner of a witness while testifying “is oftentimes more 

indicative of the real character of his opinion than his words.” Reynolds v. United States, 98 U.S. 

145, 157 (1878); see also Seventh Circuit Civil Pattern Jury Instruction 1.13 (instructing the jury 

to consider “the manner of the witness while testifying”) (given in this case, Doc. 671 at 12); 

Phelps v. St. Catherine Hosp., 908 F.2d 975 (7th Cir. 1990) (noting that non-responsive answers 

to questions make a jury’s evaluation of the witness’s demeanor more important). There was no 

good reason to shield Guevara and Mingey from this fundamental part of the trial process. The 

fact that they were communicating that their answers could subject them to criminal liability is a 

reason in favor of, not against, allowing jurors to observe their manner while testifying. 

If Guevara or Mingey thought a question was unduly damaging if not denied, then they 

had the obvious option of denying the question. When asked if they framed Rivera, they could 

have said, “No,” if that was truthful. But they cannot have it both ways. Put another way, while 

Guevara and Mingey had the constitutional right to protect themselves against self-incrimination 

by remaining silent, that does not mean that should benefit unduly from doing so. United States 

v. Rylander, 460 U.S. 752, 758 (1983) (rejecting attempt to “convert the privilege from the shield 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 58 of 157 PageID #:40538
46 

against compulsory self-incrimination which it was intended to be into a sword”). It would be 

ironic and unfair if tortfeasors were permitted special protections from civil liability merely 

because their torts were sufficiently reprehensible that they could lead to criminal charges. S.E.C. 

v. Graystone Nash, 25 F.3d 187, 191 (3rd Cir. 1994) (“The principle that the invocation of the 

privilege may not be too ‘costly’ does not mean that it must be ‘costless.’”). 

Nor should the opponent in a civil case be penalized even further—having already been 

denied the opportunity to take discovery—by the fact that these Defendants chose to protect their 

constitutional rights rather than answer questions about their alleged misconduct. And the 

Defendants asserting privileges should not be placed in a better position than other Defendants, 

all who must take the witness stand and provide their truthful testimony about the disputed issues 

at trial. Special accommodations that would permit a party to avoid participation in the civil case 

are not warranted. Graystone Nash, 25 F.3d at 191 (“In a civil trial, a party’s invocation of the 

privilege may be proper, but it does not take place in a vacuum; the rights of the other litigant are 

entitled to consideration as well.”); Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 

2000) (in a civil case, where “parties are on a somewhat equal footing, one party’s assertion of 

his constitutional right should not obliterate another party’s right to a fair proceeding”). 

If this were a criminal case, the analysis would be different, but in civil cases Fifth 

Amendment assertions from the stand are part of the protocol: it would be impossible for jurors 

to know what inferences the law permitted them to draw from an assertion of privilege if they 

could not hear any of the actual questions in response to which a privilege was asserted. Baxter, 

425 U.S. at 318-19. And in any event, the law is well-settled that a “claim of privilege must be 

made and sustained on a question-by-question . . . basis.” United States v. Lawless, 709 F.2d 485, 

487 (7th Cir. 1983). Mingey and Guevera were not entitled to a different application of that rule 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 59 of 157 PageID #:40539
47 

just because they over-asserted the privilege in response to every question posed, including in 

response to plenty of questions for which an assertion of privilege was inappropriate.18

3. Other Courts Have Taken the Same Approach As This Court 

(a) Courts in the Northern District. Any contention that the Court abused its discretion 

here is strongly undercut by the fact that other courts have also permitted parties to call witnesses 

to the stand in civil cases, even when those witnesses announced an intention to assert the Fifth 

across the board. For example, in Jimenez v. City of Chicago, 877 F. Supp. 2d 649 (N.D. Ill. July 

11, 2012), another wrongful conviction case, which was tried before Judge Kennelly, the Court 

denied a post-trial objection on this very issue in terms equally persuasive here: 

Defendants also argue that [the plaintiff] should not have been allowed to call [a witness] 

to testify at trial. In this regard, they do not argue that testimony by [the witness] . . . was 

irrelevant . . . Instead, defendants take issue with the manner in which [the witness] was 

presented. Before trial, [the witness]’s criminal counsel made it clear that if called to 

testify, he would claim his privilege against self-incrimination. Defendants contend that 

for this reason, [the plaintiff] should have been required to stipulate to what [the witness] 

would say if called to testify and should not have been permitted to present his 

self-incrimination claim live at trial. 

Defendants have offered two cases to support their argument. See United States v. 

Mabrook, 301 F.3d 503, 507 (7th Cir. 2002) (witness should not be forced to take the 

stand, because the jury cannot draw any inference from exercise of Fifth Amendment 

privilege); United States v. Vandetti, 623 F.2d 1144, 1147 (6th Cir. 1980) (witness can be 

called even if he will assert Fifth Amendment privilege, but the potential for prejudice is 

very high). Both of these cases, however, are criminal cases in which it is impermissible 

to draw an inference from a witness’s invocation of his Fifth Amendment privilege. 

Mabrook, 301 F.3d at 507. In a civil case, by contrast, the jury can draw a negative 

inference from a party’s invocation of his Fifth Amendment privilege, and defendants do 

not suggest that the rule for witnesses in civil cases is any different. Baxter v. 

Palmigiano, 425 U.S. 308, 318-19 (1976) (recognizing general rule that parties in civil 

actions are subject to a negative inference if they refuse to testify). Thus the criminal 

cases that defendants cite are not controlling. 

 18 Defendants also renew their criticism of the Court’s decision not to require Rivera to preview 

his theory of the case by submitting the questions in advance of trial, but this argument is misplaced. As 

Rivera properly pointed out in response to Defendants’ motion in limine, “[i]f Guevara agreed to submit 

his questions of Mr. Rivera in advance of trial for Plaintiff's review and prospective objections, that might 

be a fairer proposal. Short of that, however, there is no reason why Guevara deserves special treatment.” 

Doc. 484 at 8. There was no error in declining to impose this asymmetrical advance-notice requirement. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 60 of 157 PageID #:40540
48 

[Defendants] offer no authority to support the proposition that a party in a civil case is 

required to accept a stipulation in lieu of proving a point at trial. The Court also notes that 

defendants have not described any stipulation they proposed that would have conveyed 

the information that was conveyed by [the witness’s] invocation of the Fifth Amendment. 

Id. at 671-72. 

 Judge Shadur, too, permitted a plaintiff to call a defendant asserting the Fifth Amendment 

to the stand in a civil false arrest case involving Chicago Police officers. In Ramirez v. Chicago, 

No. 05 C 317 (N.D. Ill.), the defendant asserted the Fifth before the jury where appropriate. 

Notably, the defendant won that case. Similarly, in Robinson v. Harvey, No. 99 C 3696 (N.D. 

Ill.), Judge Lefkow allowed a plaintiff in a civil rights case to call a witness who had announced 

an intention to assert the Fifth. Judge Bucklo reached the same conclusion in Logan v. Burge, 

No. 09 C 5471 (N.D. Ill.). There, Judge Bucklo rejected a motion raising the same argument 

Defendants make here and ruled that Jon Burge could be called to the stand even though he 

intended to take the Fifth. No. 9 C 5471, Doc. 423, at 10-11. 

(b) Courts Around the Country Have Required Defendants Asserting the Fifth to Take the 

Stand. In addition to courts in the Northern District, other courts around the country have 

adopted the same approach that this Court took in this case. See, e.g., Rosebud Sioux Tribe v. A 

& P Steel, Inc., 733 F.2d 509, 522 (8th Cir. 1984) (concluding that parties “may call a witness to 

the stand even when that witness has made known an intention to invoke the Fifth 

Amendment”); National Life Ins. Co. v. Hartford Acc. & Indem. Co., 615 F.2d 595, 599 (3d Cir. 

1980) (“[T]he witness must appear and assert the [F]ifth [A]mendment privilege as specific 

questions are asked[.]”); Malibu Media v. Tashiro, 2015 WL 13639447, at *6 (S.D. Ind. Apr. 15, 

2015) (“[A] witness in a civil case cannot invoke the ‘blanket’ protection of the Fifth 

Amendment which is available to a criminal defendant; the civil witness can only invoke the 

Fifth Amendment to avoid answering specific questions. The civil witness must therefore take 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 61 of 157 PageID #:40541
49 

the stand before invoking the Fifth Amendment.”); Battle v. City of Reading, 1991 WL 208899, 

at *5 (E.D. Pa. Oct. 8, 1991) (same). 

B. The Objections That Defendants Did Make During the Guevara and Mingey 

Examinations Were Properly Overruled 

 Because the Court made the correct decision (and certainly did not abuse its discretion) in 

permitting Rivera to call Guevera and Mingey to the witness stand, the real issue is whether there 

was anything genuinely objectionable about the examinations. As discussed in the next section, 

Defendants failed to preserve nearly all their objections to questions posed to Guevara and 

Mingey because they failed to object contemporaneously at trial. See infra at 55. With respect to 

the foundation objections that Defendants did contemporaneously raise, there was no error in the 

Court’s rulings—none of those objections should have been sustained but were not. 

1. Defendants Misstate the Legal Standard Governing What Foundation 

Is Necessary Before Questions Are Asked At Trial 

 Before addressing Defendants’ particular foundation arguments, it is important to note 

that they significantly overstate the legal standard that applies in this context. Defendants assert 

that, in addition to needing foundation or a good-faith basis for each question asked, the factual 

predicate for each question had to be “in the trial record.” Doc. 713 at 4-5. That is incorrect. 

 The law requires a good faith basis before permitting questioning on a particular subject, 

but there is no requirement that the basis be introduced as evidence in the trial record. See, e.g., 

United States v. Beck, 625 F.3d 410, 418 (7th Cir. 2010) (“No attorney may ask a question if he 

doesn’t have a good-faith basis to ask it,” but “an attorney does not need definitive proof to have 

a good-faith basis”) (citations omitted); Oostendorp v. Khanna, 937 F.2d 1177, 1181 (7th Cir. 

1991) (“Cross-examiners must have a good faith basis for their questions . . . but do not have an 

affirmative duty to introduce the factual predicate for impeachment.”); see also United States v. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 62 of 157 PageID #:40542
50 

Sampol, 636 F.2d 621, 658 (D.C. Cir. 1980) (“[C]ounsel need not proffer a factual foundation for 

all questions asked on cross-examination. A well-reasoned suspicion that a circumstance is true 

is sufficient.”); Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014) (applying 

good-faith-basis rule to witnesses invoking Fifth Amendment). Defendants’ contrary rule would 

require the factual predicate of every question to every witness to have been introduced into 

evidence before the witness on the stand could be asked a question about that subject, an 

impossible proposition that would prevent virtually all questioning of witnesses at trial and that 

would have caused the trial in this case to last for months. 

2. Defendants’ Objections That Rivera Had No Foundation For His 

Questions About the Valentin Investigation Lacked Merit 

The foundation objections that Defendants did make at trial were without merit, and the 

examples cited by Defendants in their briefs only highlight the problem with their argument. For 

instance, Defendants assert there was no foundation to ask Guevara about the August 27 photo 

show up, Doc. 713 at 8-9, but Rivera has described the evidence supporting that 

theory—separate and apart from Guevara’s assertion of the Fifth—in detail above, see supra at 

2, 14. Defendants also assert that there was no evidence that Lopez was encouraged to pick 

Rivera from the September 15 lineup, Doc. 713 at 9, but there is strong evidence, from Lopez 

himself, that he told Guevara that Rivera was the wrong guy and was pressured to go through the 

identification regardless, see supra at 6, 23. 

Defendants’ unsuccessful motion for a mistrial after Mingey’s examination also 

illustrates that the foundation objections at trial lacked merit. After Mingey left the stand, the 

Defendants, surmising the trial was not going well, moved for a mistrial. Doc. 621. Their motion 

highlighted nine questions they claimed lacked foundation. Id. at 2-3. But Defendants were 

wrong. The questions they highlighted were proved up by subsequent testimony. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 63 of 157 PageID #:40543
51 

For example, Defendants’ mistrial motion complained about a question asking whether 

children can be steered without even realizing it. Wixted later corroborated that very point. Ex. 

16 at 4018. Defendants next said it was objectionable to ask Mingey whether it would be 

suggestive if Lopez was shown Rivera’s photo on August 27 and was then asked to pick him out. 

There was foundation for this question, too: Rivera proved that his photo had been pulled on 

August 27, and that Guevara had conducted an identification procedure in Lopez’s kitchen on 

that date. See supra at 2, 14. In addition, Guevara’s own 9/16 report admitted that he had showed 

Lopez a single photo of another suspect (Rodriguez) and asked Lopez for an up or down on 

whether he had been involved. See supra at 25. The next question quoted in Defendants’ motion 

asked Mingey whether he knew of other instances where photos were shown to witnesses 

without employing proper identification procedures. Defendants again insist that there was no 

foundation for that question, but there was evidence on that point as well, including the 

testimony that showing Lopez a single photo of Rodriguez was improper, see supra at 25, and 

Dorsch’s testimony, to which the door was opened by Defendants, Ex. 12 at 2735-51. 

The next four quoted questions were supposed to highlight the lack of foundation for the 

notion that Gang Crimes officers were not covered by the rules governing the detective division. 

The questions asked whether gang crimes officers were permitted to keep personal investigative 

files; whether they created humper reports that never got disclosed; whether they maintained 

materials that were immune from criminal discovery; and whether they maintained a parallel set 

of files that never got disclosed. Doc. 621 at 3-4. Mingey did not deny any of this, but according 

to Defendants, the Court should have ordered a mistrial because there was no foundation for the 

questions. Defendants were proved wrong on these points, too. Their witnesses, Spratte, Hickey, 

Noble, and Murray, subsequently confirmed every single one of these points. Ex. 13 at 3221-22, 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 64 of 157 PageID #:40544
52 

3250-51, 3290-92; Ex. 14 at 3388-9 1, 3355-62, 3425-28, 3475-78, 3482-84; Ex. 16 at 3900-6. 

As the block quote in Defendants’ own brief illustrates, Doc. 713 at 10-11, Defendants 

seriously undermined their credibility by objecting repeatedly that there was no foundation for 

questions posed to Mingey, only to be contradicted when Rivera’s counsel played clips from 

Mingey’s own deposition testifying to the very facts that his counsel claimed there was no 

foundation to ask about. As the Court properly observed (in language also block quoted in 

Defendants’ motion): “Well, if you made 20 foundation objections, and two of them were good, 

which I would say is about the score, it’s really difficult for me being—playing referee when 

every time you make—when 90% of the time when you make those objections, it turns out there 

is a foundation.” Ex. 11 at 2528-29. There was foundation for the questions that Rivera asked 

about the Valentin investigation, and Defendants’ objections at trial lacked merit. 

3. Defendants Objections That Rivera Had No Foundation For His 

Questions About Other Acts Lacked Merit 

Defendants make a very limited argument that Rivera lacked foundation to ask Guevara 

and Mingey questions about three of Guevara’s other acts. Doc. 713 at 11-13. Specifically, they 

complain about: (1) eight questions to Guevara about the prosecution of Xavier Arcos, a case 

involving witness Wilfredo Rosario, Ex. 6 at 1289:13-1290:22; (2) ten questions about the 

prosecution of Luis Serrano, a case involving witness Evelyn Diaz, Ex. 6 at 1290:23-1291:14; 

and (3) a single question to Mingey about whether Guevara had steered child witnesses on other 

occasions under Mingey’s supervision, Ex. 11 at 2496:16-18. Defendants argue that foundation 

was lacking because the Court barred Rosario and Diaz from testifying, and because there was 

no basis to suggest that Guevara had steered other witnesses. Doc. 713 at 11-13.19

 19 Similar to their objection to the question asked of Mingey, Defendants argue that Rivera 

improperly asked a single question of Guevara about whether he had manipulated identifications in 

investigations other than with Lopez. Ex. 6 at 1302:24-1303:2. As with the other questions, Defendants 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 65 of 157 PageID #:40545
53 

 Importantly, Defendants’ arguments concern Rivera’s good-faith basis for asking 

questions. They do not concern the admission of other-acts evidence in any respect. Indeed, 

Defendants do not preserve any challenge post-trial to the Court’s extensive other-acts ruling 

prior to trial. Nor do they attack the Court’s clarification of that ruling during trial. Nor do they 

make any argument about the Court’s determination that Defendants opened the door to 

questioning about other acts by their own testimony on the stand. Defendants cannot expand the 

playing field in their reply. Nelson, 657 F.3d at 590; Kelso, 398 F.3d at 643. 

 The parties’ pre-trial briefing addressed the admissibility of other acts evidence. Docs. 

411, 479, 494. Rivera exhaustively set out all of the evidence that provided his good-faith basis 

for asking permissible questions about other acts, including the basis for questions relating to 

Chicago Police officer William Dorsch, Doc. 479 at 6-7, 23-38, the Arcos/Rosario case, Doc. 

479 at 10-12, 23-38, and the Serrano/Diaz case, Doc. 479, at 14-15, 23-38. 

 The Court expressly barred cross-examination of Guevara in advance of trial on a number 

of other-act fact patterns, Doc. 540 at 3, 16, but it permitted cross-examination on Arcos/Rosario, 

Serrano/Diaz, and other cases, id. at 3, 16; and it ruled that Dorsch could testify about Guevara 

pointing out a photo a juvenile witness, id. at 14. Shortly after trial stated, Rivera filed a motion 

to clarify, in part seeking to ensure that he was permitted to cross-examine Guevara on seven 

other-acts cases, including the Arcos/Rosario and Serrano/Diaz cases, even though particular live 

witness had been barred, including Rosario and Diaz. Doc. 565 at 4. The court clarified that 

Rivera could cross-examine about these cases. Doc. 566. 

When Guevara took the stand, he asserted that he was not testifying on the advice of his 

counsel, opening the door to questions about advice that his counsel had given him in other cases 

 

did not object at trial, and they do not develop any argument about what was objectionable about this 

question. Rivera assumes for purposes of this response that the argument is the same as the foundation 

argument made about the question put to Mingey. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 66 of 157 PageID #:40546
54 

involving misconduct. See infra at 59. Again, after the Court made clear that Guevara was 

opening the door and gave Guevara the opportunity to reconsider his position, Guevara decided 

to continue invoking the advice of his counsel, and he acknowledged that he knew he was 

opening the door. Id. In this context, having been expressly permitted to cross-examine on other 

cases, and after Guevara affirmatively opened the door, Rivera asked the limited questions now 

in dispute. After that, Dorsch took the stand and provided his account of Guevara coaching the 

child witness. Ex. 12 at 2744-51. 

Again, Defendants do not take issue (or even discuss) the Court’s rulings. They also 

made almost no objections throughout the trial to other-acts evidence. Instead, they limit their 

argument to the foundation for these questions. But the foundation is fully set out in Rivera’s 

pre-trial briefing on these other cases, Doc. 479 at 6-7, 10-12, 14-15, 23-38, and Dorsch testified 

about Guevara’s coaching, Ex. 12 at 2744-51. As discussed above, Rivera needed a good faith 

basis to ask these questions, but he was not required to introduce that basis as evidence in the 

record. Beck, 625 F.3d at 418; Oostendorp, 937 F.2d at 1181. 

 Importantly, Defendants did not preserve a foundation objection to any of the questions 

they now complain lacked foundation. In fact, they only objected to one of the questions they 

identify. During the questions about the Arcos/Rosario case, Defendants objected once to a 

compound question. Ex. 6 at 1289:13-1290:22. During the questions about the Serrano/Diaz 

case, and the question to Mingey, Defendants did not object at all. Ex. 6 at 1290:23-1291:14; Ex. 

11 at 2496:16-18. As explained in the next section, these objects are forfeited, and to the extent 

that this Court reviews these questions for plain error, there is none. In fact, Defendants do not 

even attempt to make a plain error argument in this section of their motion. See Doc. 713 at 

11-13. Defendants’ argument about other-acts questions should be rejected. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 67 of 157 PageID #:40547
55 

C. Defendants Failed to Raise Many of Their Objections About the Guevara 

and Mingey Examinations, and They Cannot Satisfy the Plain Error 

Standard 

Defendants’ objections lack merit, but compounding the problem is the fact that 

Defendants failed to object at trial to most questions posed to Guevara and Mingey, including 

questions they now object to in their post-trial motion. Defendants concede in their motion that 

they failed to object, Doc. 713 at 5-6, and the two sections above outline the lack of objections. 

It is well settled that parties who wish to preserve an objection at trial must make 

contemporaneous objections, stating the specific basis for the objection. Jimenez v. City of 

Chicago, 732 F.3d 710 (7th Cir. 2013). If no objection is made, then a court may (but it not 

required to) review the ruling for plain error. Walker v. Groot, 867 F.3d 799, 805 (7th Cir. 2017) 

(citing Fed. R. Evid. 103(e)). “However, ‘a showing of plain error requires extraordinary 

circumstances’ that affect substantial rights and result in a miscarriage of justice. . . . Such 

instances in civil cases are rare.” Id. (quoting Stringel v. Methodist Hosp. of Indiana, Inc., 89 

F.3d 415, 421 (7th Cir. 1996)). None of Defendants’ complained of errors is even in that 

ballpark, and Defendants don’t seriously develop any argument otherwise.20

To escape that result, Defendants try to suggest that the Court made a definite ruling that 

relieved Defendants of their obligation to continue to object at trial. Doc. 713 at 10-11.That is 

not the case. The Court in no way ruled that every question Plaintiff’s counsel asked was going 

to be permitted. Quite the opposite, the Court continued to sustain objections wherever proper 

ones were raised. See, e.g., Ex. 6 at 1273, 1276, 1279, 1308, 1309, 1314-15, 1318, 1321, 1322, 

1329, 1331, 1338, 1340; Ex. 11 at 2488, 2494, 2512. 

Defendants similarly claim that the Court put them in a “quandary” by heaping “ire” 

 20 Defendants contend that their Fifth Amendment rights were violated at trial, and that their right 

to a fair trial was infringed. Doc. 713 at 6. But Defendants do not develop at all how any question that 

was asked violated their constitutional rights. The argument is hyperbole. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 68 of 157 PageID #:40548
56 

upon them in a way that supposedly discouraged them from making objections in front of the 

jury. R. 713 at 6. There are a number of problems with this argument. Most importantly, the 

passages from the transcript on which they rely, Ex. 8 at 1818-19; Ex. 11 at 2455, Ex. 16 at 

4043, all recount events after Guevara’s and Mingey’s examinations had been completed, and 

thus these passages could not have deterred Defendants objections during those earlier exams. 

Moreover, the first two examples occurred outside the jury’s presence, Ex. 8 at 1819; Ex. 11 at 

2455, and thus did not risk any juror ire. The third example occurred during Wixted’s testimony, 

the final examination of the trial, and one during which Defendants were asserting too many 

objections, by any objective measure. See infra at 68. This was also an exam for which the Court 

had imposed “really strict time limits” by mutual agreement, Ex. 16 at 4032, and the Court came 

to believe that Defendants’ objections had become improperly obstructionist. Ex. 16 at 4048 (“I 

think I’m going to overrule this objection. I think this is just using all of one party’s time, and it’s 

not fair.”). In sum, contrary to Defendants’ suggestion otherwise, there was nothing about any of 

these comments by the Court that could justify the forfeiture occasioned by their failure to object 

during Guevara’s and Mingey’s examinations much earlier in the trial. 

D. Defendants’ Other Arguments Relating to the Fifth Amendment Lack Merit 

1. Rivera Did Not Misstate Fifth Amendment Law 

Defendants also argue that when Rivera misstated the law when he asked Guevara and 

Mingey if they were asserting the Fifth because a truthful answer would implicate them in a 

crime. Doc. 713 at 13-14. This argument also lacks merit. 

First, the Court correctly instructed the jury: “In response to questions here, defendants 

Guevara and Mingey have asserted their Fifth Amendment right not to incriminate themselves. 

You may draw an inference against defendants Guevara and Mingey as a result of their decision 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 69 of 157 PageID #:40549
57 

to invoke their Fifth Amendment rights instead of testifying, and you may assume that any 

response that they might have given to the questions asked would have been unfavorable to 

them, but you may not find a defendant liable on the basis of silence alone.” Doc. 671 at 21. 

Defendants do not challenge this instruction, and juries are presumed to follow their instructions. 

Soltys v. Costello, 520 F.3d 737, 744-45 (7th Cir. 2008). 

Second, Rivera’s questions put to Guevara and Mingey did not contradict the Court’s 

instruction. Rivera asked whether a truthful response would incriminate them, and the Court’s 

instruction notes that Guevara and Mingey asserted their right not to incriminate themselves in 

response to questions, and that their refusal to answer could justify an inference that a truthful 

answer would be unfavorable to them. Doc. 671 at 21. The law permits litigants in civil cases to 

avoid answering otherwise proper questions based on an assertion of the Fifth Amendment on 

one condition only: “The answer one would give if one did answer it, and answer it truthfully, 

must have some tendency to subject the person being asked the question to criminal liability.” In 

re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 663 (7th Cir. 2002). Thus, 

Guevara and Mingey’s explanation—or rather, their counsel’s explanation—that they had some 

other legitimate reason for asserting the Fifth is invalid and insufficient to avoid the proper 

questions asked of them about their reasons for asserting the Fifth. 

Third, Defendants’ argument falls apart when it is examined closely. Defendants are 

arguing that they might have some other reason—separate from a fear of incriminating 

themselves—to assert the Fifth and avoid testifying. But if they had some other reason for 

refusing to answer questions that did not incriminate them, then they presumably could have just 

testified about that reason without fear of incriminating themselves. In turn, they would not be 

allowed to assert the Fifth Amendment privilege to avoid testifying about those reasons. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 70 of 157 PageID #:40550
58 

Defendants’ argument therefore makes little sense on its own terms. 

Defendants also argue that Rivera’s questions to Guevara about whether he feared 

prosecution for perjury were improper. Doc. 713 at 14. But Guevara himself made this an issue 

in the case by asserting repeatedly that he was asserting the Fifth Amendment on the advice of 

his counsel. Ex. 6 at 1267-1271. At the start of his examination, and outside the presence of the 

jury, Rivera noted that if Guevara continued to invoke the advice of his counsel, then Rivera 

would ask him questions about what crimes his counsel had advised him that he was exposed to. 

Id. The Court warned Guevara that he was making that line of questioning relevant. Id. After 

that, Guevara continued to assert that he was invoking the Fifth on advice from his counsel, and 

Rivera asked whether his counsel had advised him that he could be criminally liable for perjury 

if he answered questions truthfully.21

Finally, Defendants did not object at trial to many of the questions on this point that they 

cite on pages 13 and 14 of their brief. See Doc. 713 at 13-14, which cites the following questions 

that were not objected to: Ex. 6 at 1279:24-1280:3; Ex. 6 at 1295:17-24; Ex. 11 at 2482:4-6; Ex. 

11 at 2542:25-2543:2. Nor did they object to the other instances where similar questions were 

asked. E.g., Ex. 6 at 1273:9-15, 1274:4-11; Ex. 11 at 2481:1-7. Accordingly, Defendants 

forfeited the argument and cannot satisfy the plain error standard discussed above. 

2. Questions About An Investigation Into Guevara Were Proper 

 Defendants next contend that Rivera’s questioning of Guevara about whether he was the 

subject of a criminal investigation was improper. Doc. 713 at 14-15. For starters, one of the two 

 21 Defendants cite the unpublished decision in U.S. v. Jimenez, 1995 WL 135923 (7th Cir. 1995), 

which involves a different situation. There the Seventh Circuit remarked that courts sometimes find it 

prejudicial when lawyers call witnesses liars or perjurers in closing arguments. Though such statements 

rarely require reversal, the problem discussed in that case line is with lawyers characterizing testimony 

given at trial as lies. Those cases have nothing to do with this circumstance, where a litigant’s reason for 

asserting the privilege against self-incrimination has been put at issue. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 71 of 157 PageID #:40551
59 

questions Defendants complain about (see Doc. 713 at 15 (citing Tr. 1279:17-22)) was objected 

to and the objection was sustained. Sanchez v. City of Chicago, 700 F.3d 919, 932-33 (7th Cir. 

2012) (we presume juries follow instructions when judges sustain objections). Sustained 

objections do not warrant a new trial. 

 In addition, Guevara opened the door to questions about whether he was being 

investigated, and before asking the questions that Guevara now complains about, Guevara had 

advance notice that he could either open the door to these questions or not. Specifically, when 

Guevara took the stand, he asserted that he was pleading the Fifth on the advice of his counsel, 

Rivera moved to strike discussion of the advice to counsel, and the Court noted that testifying 

about the advice of counsel opened that issue up for questioning. Ex. 6 at 1267-1268. Guevara 

persisted in invoking the advice of his counsel. Id. at 1268. At sidebar, Rivera made clear that if 

Guevara continued to rely on his attorney’s advice from the stand, Rivera was going to ask, 

“Isn’t it true your attorney told you if you testify you’re putting yourself in criminal jeopardy for 

18 people who say you could be prosecuted for.” Id. at 1269. The Court agreed that such 

questioning would be appropriate if Guevara opened the door, and it said that Guevara’s counsel 

should speak with him. Id. at 1269-1270. The Court sent the jury out, and Guevara’s lawyers 

counseled him in the hallway for an extended period. Id. at 1270-1271. When Guevara returned, 

Rivera’s attorney stated: “I’m informed that [Guevara]’s going to say, ‘advice of counsel’ and 

they’re doing it knowing opening of the door. I intend to cross-examine him on why his attorney 

is advising him. You know, everybody understands the situation.” Id. at 1271:11-15. Guevara’s 

lawyer confirmed: “Yes, Judge, that’s the situation.” Id. at 1271:16. The questions that followed, 

to which Guevara now objects, were precisely the questions that Rivera said he was going to ask, 

to which Guevara acknowledged he had opened the door. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 72 of 157 PageID #:40552
60 

 Third, there was ample foundation for asking Guevara questions about a criminal 

investigation against him, because Guevara’s lawyer conceded that there was such an 

investigation. During a pretrial conference, Rivera raised the concern that Defendants intended to 

assert the Fifth as a reason not to testify, but that they would also suggest to the jury that the 

reason they were doing so had nothing to do with incriminating themselves. The Court 

responded that such an approach was not appropriate, saying that Defendants needed a 

well-grounded fear of prosecution to take the Fifth. Rivera then asked whether there was a 

pending investigation against Guevara, and he received no clear answer. Ex. 57 (May 24, 2018 

Tr.) at 42:20-48:3. During the very part of Guevara’s exam that Defendants now complain about, 

there was a sidebar during which Rivera’s counsel said that, based on Guevara’s lawyers 

previous comments, he understood that there was a grand jury convened concerning Guevara. 

Ex. 6 at 1280-1281. The Court said there needed to be foundation for the questions that Rivera 

was asking, and it asked, “So the question is, is there any foundation for this. Is there a grand 

jury? Is there a live investigation going or not?” Id. at 1280-1821. To which Guevara’s counsel 

responded, “It’s my understanding that there is, Judge.” Id. at 1281. Accordingly, Guevara 

opened the door to these questions, he was warned they would be asked in advance, he 

acknowledged he was opening the door, and foundation was provided by Guevara’s counsel. 

3. Rivera’s Extremely Brief and Accidental Display of Part of Gawrys’s 

Deposition Transcript Does Not Warrant A New Trial, As This Court 

Has Already Concluded 

In the midst of their discussion of Rivera’s questions to Guevara about investigations, 

Defendants contend—in two sentences and a footnote—that their motion for a mistrial should 

have been granted when a portion of Gawrys’s deposition transcript was briefly shown on the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 73 of 157 PageID #:40553
61 

screen while Gawrys was being impeached. Doc. 713 at 15 & n.4.22 The argument is so 

undeveloped that it cannot justify a new trial. Opp v. Wheaton Van Lines, 231 F.3d 1060, 1066 

(7th Cir. 2000); see also Smith v. Northeastern Ill. Univ., 388 F.3d 559, 569-70 (7th Cir. 2004). 

It also lacks merit. During his cross-examination of Gawrys, Rivera’s counsel attempted 

to impeach him on a certain point using Gawrys’s video deposition. The protocol used at trial for 

video impeachment was as follows: Rivera’s counsel would call out the pages and line number 

of the impeachment; after which Rivera’s trial paralegal would pull up the video deposition and 

type that range into the Trial Director program; after which the starting page and line of the 

video would load and then show on the screen, along with the starting line and the two or three 

following lines of the transcript, which are displayed below the video; after which Rivera’s trial 

paralegal would hit “play” upon counsel’s direction. 

In this instance, Rivera’s counsel mistakenly called out the impeachment from page 90, 

lines 7 through 21, of Gawrys’s deposition. Ex. 8 at 1753:10.23 As usual, there was a delay while 

Rivera’s counsel called out the page and line, the trial paralegal called up the video, typed in the 

page and line numbers of the clip, and waited for the computer to load the video. Once the video 

loaded and an image appeared on the screen, and before the trial paralegal could even hit play, 

Rivera’s counsel could see that there was a mistake and he immediately asked for the image to 

be taken off the screen. Ex. 8 at 1753:10-16. When Rivera’s counsel saw that the page was 

wrong and asked to take it down, it immediately came off of the screen—pressing one button on 

the Trial Director program clears the screen. 

As the Court noted for the record shortly thereafter, the entire period of time from when 

 22 This argument does not pertain to the Fifth Amendment, but Rivera addresses it here because it 

is buried in that section of Defendants’ brief. 

23 As the Court can see, the correct transcript portion for the impeachment was page 91, lines 7 

through 21. Rivera’s counsel was off by one page. Ex. 61 (Gawrys Deposition) at 91:7-21. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 74 of 157 PageID #:40554
62 

Rivera’s counsel started to call out the line and page and line numbers, to the time that the trial 

paralegal switched the system to the deposition, typed the page and line, to the time that the 

computer loaded the clip and displayed it on the screen, to the time that Rivera’s counsel saw the 

screen shot above and asked his trial paralegal to take the image down instead of playing the clip, 

took a total of at most 19 seconds. Ex. 9 at 1955-1959. There was a dispute at trial about how 

many of those 19 seconds the text above was actually visible on the jury’s screens. Defendants’ 

contended that it had been up on the screen for “at least 30 seconds,” Ex. 8 at 1820-1823, which 

obviously could not be true given the foregoing. Rivera’s counsel contemporaneously 

maintained—and continues to maintain here—that the image could not have been visible for 

more than about three seconds, because it took a substantial amount of the 19 seconds reflected 

on the transcript to get to the point where the video was even on the screen. Id. at 1821. Most 

importantly, the disputed clip was never even played for the jury—all that happened is that a 

couple lines of the transcript was shown momentarily on the screen. 

 There was a sidebar when this happened, at which the parties set out their positions, 

Rivera explained it had been a mistake, and the Court instructed the jury: “Ladies and gentleman, 

if something was just up on your screen page 90, that was a mistake and it is not evidence in this 

case and you should disregard it.” Id. at 1753:22-1755:11. Any potential prejudice caused by this 

portion of the transcript being shown momentarily on the screen was cured by the Court’s 

instruction. Sanchez, 700 F.3d at 932-33.24 This mistake does not warrant a new trial. 

 24 Moreover, apart from the fact that the transcript was shown for a brief period of time, the 

argument that a mistrial was warranted is frivolous. There is no reason to believe anyone even knows who 

someone named Miedzianowski is, much less that the FBI was investigating him. Defendants are far from 

showing any real prejudice, even if the jury did see this portion of the transcript. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 75 of 157 PageID #:40555
63 

4. Gawrys Was Not Unfairly Prejudiced By His Co-Defendants’ 

Assertions of the Fifth Amendment 

 In a single paragraph, Gawrys argues that his co-Defendants’ assertions of the Fifth 

Amendment prejudiced him to an extent that he is entitled to a new trial. Again, the argument is 

far too undeveloped to warrant this Court’s consideration post-trial, much less to justify a new 

trial for Gawrys. Smith, 388 F.3d at 569-70; Opp, 231 F.3d at 1066. Gawrys does not explain 

whatsoever how he was prejudiced by his co-Defendants’ testimony, and it is difficult to guess 

how that testimony violated Gawrys’s substantial rights, Maurer, 774 F.3d at 1135, or why the 

Court should presume that the jury declined to consider its instructions about how to consider the 

evidence, Berry v. Deloney, 28 F.3d 604 (7th Cir. 1994) (noting that even in extreme 

circumstances jury instructions avoid the need for separate trials). Moreover, it is important to 

note that Gawrys did not even move for a separate trial. Though a separate trial would not have 

been warranted, the fact that Gawrys did not ask for one forecloses any argument that he was 

prejudiced by his co-Defendants’ assertions of the Fifth Amendment. Chlopek v. Federal Ins. 

Co., 499 F.3d 692, 701 (7th Cir. 2007) 

 Regardless, this Court instructed the jury that a negative inference from the assertion for 

the Fifth Amendment could be drawn only against Guevara and Mingey, the Defendants 

asserting the Fifth. It did not instruct the jury that the same inference could be drawn against 

Gawrys, the City, or any other Defendant. Doc. 671 at 21. Again, juries are presumed to follow 

their instructions, Chlopek, 499 F.3d at 701-02, and there is no reason to think they failed to do 

so in this instance. In fact, the jury’s verdict in favor of McLaughlin is evidence that Guevara’s 

and Mingey’s assertions of the Fifth did not confuse the jury about whether those assertions 

made other Defendants liable. 

 Moreover, even if the Court’s instruction had allowed the jury to draw an inference 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 76 of 157 PageID #:40556
64 

against Gawrys, the City, or any other Defendant—which it did not—there would still be no 

error. As Judge Leinenweber recently explained in denying this same post-trial argument: 

One party’s Fifth Amendment invocation may be imputed to another party when the two 

share certain allied interests sufficient to justify the inference’s trustworthiness and 

advance the search for truth. See [Kontos v. Kontos, 968 F.Supp. 400, 406 (S.D. Ind. 

1997)] (quoting LiButti v. United States, 107 F.3d 110, 124 (2d Cir. 1997)). Courts 

engaging in this inquiry have eschewed bright-line rules in favor of a case-by-case 

analysis demanding that the party urging the inference justify it. State Farm Mut. Auto. 

Ins. Co. v. Abrams, 2000 WL 574466, *6 (N.D. Ill. May 11, 2000) (collecting cases). 

First Midwest Bank v. City of Chicago, 2018 WL 4126570, at *12 (N.D. Ill. Aug. 29, 2018); see 

also Fujisawa Pharm. Co. v. Kapoor, 1999 WL 543166, at *9 (N.D. Ill. July 21, 1999) (citing 

Daniels v. Pipefitters’ Ass’n Local Union No. 597, 983 F.2d 800, 802 (7th Cir. 1993)). 

“The LiButti court suggested four ‘non-exclusive’ factors to guide courts in making these 

determinations: (1) the nature of the relationships at issue (‘The closer the bond, whether by 

reason of blood, friendship or business, the less likely the non-party witness would be to render 

testimony in order to damage the relationship.’); (2) the degree of control the party has over the 

non-party witness; (3) the compatibility of the interests of the party and non-party witnesses in 

the outcome of the litigation; and (4) the role of the invoker in the litigation. See LiButti, 107 

F.3d at 123-24.” State Farm v. Abrams, 2000 WL 574466, at *6 (N.D. Ill. May 11, 2000). Here, 

there is ample justification for imputing the assertion of the Fifth Amendment to Gawrys. 

For starters, Gawrys’s interests in this litigation, and those of Guevara and Mingey, are 

entirely congruent. Indeed, Gawrys’s testimony on the stand was largely focused on continuing 

to deny that he or any of his colleagues had engaged in misconduct. Ex. 8 at 1785-90; Ex. 11 at 

2453-71. The three were all parties and they prepared the defense together, with the same 

attorneys for the vast majority of the litigation. And, as described above, those invoking the Fifth 

Amendment were central investigators in the Valentin investigation, along with Gawrys, and all 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 77 of 157 PageID #:40557
65 

played a central role in the case. District courts have concluded in similar circumstances that “an 

adverse inference could be drawn against a party from an alleged co-conspirator’s invocation of 

the Fifth Amendment privilege against self-incrimination.” Abrams, 2000 WL 574466, at *6-7 

(discussing United States v. District Council, 832 F.Supp. 644, 652 (S.D.N.Y. 1993)). 

 Any way the Court views the issue, there was no unfair prejudice to Gawrys as a result of 

his co-Defendants’ assertion of the Fifth Amendment. A new trial as to him is unwarranted. 

E. The Court Properly Exercised Its Discretion When It Excluded 

After-Acquired Evidence Concerning Felipe Nieves 

 Defendants next contend that they should have been allowed to present after-acquired 

evidence about where Felipe Nieves was at the time of the Valentin shooting. Doc. 713 at 18-21. 

The Court’s ruling in limine on this issue was sound, Defendants presented no justification 

during trial for revisiting that ruling, and there is nothing new in their post-trial motion. 

To review, weeks before he died at the hospital, Valentin told Letrich that an Imperial 

Gangster had shot him, and he identified Rodriguez as that Imperial Gangster in a mugbook. See 

supra at 5. There was no dispute at trial that Valentin told Letrich with confidence that 

Rodriguez was the person who shot him eleven times from a very short distance away. Ex. 2 at 

137-38. Valentin, who was in a rival gang, had driven into Imperial Gangster territory at the time 

of the shooting, which occurred about a mile from where Rodriguez lived. Ex. 2 at 141-42. 

Whatever else is true, those facts should have made Rodriguez a suspect in the Valentin 

shooting. The problem was, days before the victim identified Rodriguez as the killer, the 

Defendants had already pulled Rivera’s rap sheet and photo and obtained Lopez’s identification 

of Rivera. See supra at 2. 

 To support the inference that Defendants had “tunnel vision” in their effort to frame 

Rivera for the Valentin shooting, Rivera established at trial that no police officer had ever truly 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 78 of 157 PageID #:40558
66 

investigated whether Rodriguez, not Rivera, might have been the shooter. According to their 

police reports and testimony, no investigator even interviewed Rodriguez about his involvement, 

much less whether he knew Valentin, had a reason to kill him, or could provide an alibi. Ex. 35 

(PX19); Ex. 2 at 177-78; Ex. 3 at 564-68. 

Those facts were undoubtedly relevant to this trial, and Defendants do not contend 

otherwise. Instead, Defendants say that the Court erred in excluding other evidence, unknown to 

the Defendants at the time of their investigation, that another person who Valentin identified as 

the driver of the getaway car, Felipe Nieves, was out of town on the day of the Valentin 

shooting. Doc. 421 (motion in limine on Nieves); 526 (Court’s in limine ruling on Nieves). 

The Court exercised its discretion correctly. As Defendants’ post-trial motion makes 

clear, they sought to introduce the Nieves evidence to show that Valentin’s identification of 

Rodriguez was purportedly unreliable. Doc. 713 at 18-21. A threshold problem with the 

argument is its faulty premise. Valentin’s inability to correctly identify the getaway driver who 

was sitting in a car a distance away from the shooting (and who Valentin, like Lopez, may not 

have even seen at all) does not undermine the accuracy of his identification of the person who 

approached his car and shot him eleven times, from a distance of less than five feet, in a 

face-to-face encounter. In that sense, Valentin’s identification of Rodriguez is not “intertwined” 

with that of Nieves. See id. at 18. 

But even leaving that aside, Defendants continue to miss the point. The Rodriguez 

evidence was never offered at trial to prove that Rodriguez committed the crime. It was admitted 

for the limited purpose of showing that the Defendants ignored an important lead, one they 

presumably would have investigated if they were genuinely interested in exploring the guilt of 

anyone but Rivera. In that context, the fact that Nieves—unbeknownst to the Defendants at the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 79 of 157 PageID #:40559
67 

time of their investigation or at any point before the start of this civil litigation—was apparently 

out of town at the time was not only irrelevant, but it would have risked extreme jury confusion 

by providing an ex post excuse for having failed to conduct an investigation that no one even 

suggested they had undertaken.25

Importantly, Rivera’s counsel was at all times clear about the purpose for which the 

Rodriguez evidence was introduced. In opening, he explained the first time Rodriguez was 

mentioned that “we’re not here to retry Jose Rodriguez’s guilt or innocence. That’s not what the 

case is about. We’re just talking about the police investigation. And you’re not detectives, I’m 

not a detective, but that probably strikes you as a clue, a clue, a good clue, the victim saying, I 

got shot by this kid, Jose Rodriguez.” Ex. 2 at 62. In closing, he reinforced the same point: “Now 

we don’t know if Jose Rodriguez did it. Let’s be clear. There’s been a lot of objections. We’re 

not here to decide who killed Felix Valentin. It’s not a murder case. It’s not a criminal case. 

Nothing like that. All we’re saying is, I’m not a detective, you’re not a detective, [but] that’s a 

clue, that’s a good clue. When the victim says ‘Jose Rodriguez shot me,’ that’s the kind of the 

thing you got to investigate.” Ex. 17 at 4158-59. 

Defendants claim that Rivera nonetheless misused the evidence to prove that Rodriguez 

was in fact guilty. The problem for the argument is that there is no support in the record. 

Defendants’ motion lists every reference to Rodriguez from the trial, Doc. 713 at 19-20, but they 

fail to point to single one of them that establishes what Defendants are trying to establish. On the 

contrary, all of those citations show that Plaintiff properly used the Rodriguez evidence for the 

limited purpose for which it was admitted: to show that the Defendants inexplicably ignored 

 25 To be clear, nothing stopped Defendants from arguing at trial that they had not pursued Nieves 

because he was nowhere to be found. Nor did anything stop them from relying on their memories or 

investigative records to provide other testimony about the investigation undertaken into this person who 

the victim had identified. It appears that the reason that Defendants did not offer any of this testimony is 

because they never even tried to investigate Nieves at all. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 80 of 157 PageID #:40560
68 

good information suggesting that someone other than Rivera had committed the crime. E.g., Ex. 

2 at 183 (asking whose job it was to follow-up on investigative leads during an investigation); 

Ex. 3 at 563-65 (asking McLaughlin whether she took steps to talk to Rodriguez); Ex. 6 at 1324 

(asking Guevara the same questions); Ex. 8 at 1810 (asking Gawrys the same questions).26

 Finally, at no time during trial did Defendants make any offer of proof about how they 

would show, through admissible evidence, that the Nieves referenced in Letrich’s report was a 

person who was not in Chicago at the time of the Valentin shooting, and they do not now 

contend that they were prevented from making an offer of proof on the point. As a result, their 

argument about Nieves is forfeited. Mason, 233 F.3d at 1046-47 (proffer must detail what 

witnesses would say, otherwise “we do not know whether [witness] was in fact prepared to so 

testify,” and the court “cannot assess whether the exclusion was ‘prejudiciously erroneous.’”); 

Wilson v. City of Chicago, 758 F.3d 875, 885 (7th Cir. 2014) (party must make offer of proof at 

trial to preserve issue for post-trial motion or appeal). 

 In sum, the Court did not err in excluding evidence that Nieves was out of town, and 

Defendants have not properly presented an argument otherwise. Regardless, that evidence was 

certainly not sufficiently important to have affected the outcome of the trial, and so no new trial 

is justified. Griffin v. Bell, 694 F.3d 817, 827 (7th Cir. 2012). 

F. The Court Did Not Err When It Permitted Cross-Examination of Wixted 

 Defendants made a terrible strategic decision to call a “memory expert” as part of their 

case. Wixted’s direct examination explained at length how phenomena such as retrospective bias 

can distort a person’s recollection of past events. The themes elicited by Defendant on Wixted’s 

 26 Defendants point out that the Court’s ruling on the motion in limine provided that if Plaintiff 

argues or implies that Nieves was involved in the murder, Plaintiff may open the door, in which case the 

Court would revisit the ruling. Doc. 526. As it turned out, however, Rivera never suggested Nieves was 

guilty. It was the Defendants who kept bringing up Nieves, in effect trying to open their own door. See 

Ex. 16 at 3973:16-18 (Court noting that it was Defendants who kept raising Nieves). 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 81 of 157 PageID #:40561
69 

direct were that memory can be unreliable, that witnesses are susceptible to steering and leading 

questions, and that the most important data point is the witness’ first recorded memory. In 

Wixted’s words, he was a “broken record” on that point: it is the first recorded memory that is 

most accurate, and subsequent memories are more vulnerable to suggestion and manipulation. 

Ex. 16 at 3999; see also Ex. 16 at 3991 (defense counsel asking general questions, such as 

“Under what conditions is eyewitness memory reliable, and under what conditions is it 

unreliable?”); Ex. 16 at 3993 (explaining the literature of memory science dating from the 1970s 

and 1980s about how memory is malleable); Ex. 16 at 3994 (Q: “And could you explain to the 

jury what false memory consists of?”); Ex. 16 at 3997 (testimony about leading questions can 

“accidently implant false memories,” particularly in children). 

Defendants’ goal in all this was to call into question Lopez’s 2010 statement to the 

Northwestern investigators, Linzer and Estes, in which Lopez said he told the police they had the 

wrong guy but no one would listen to him. It somehow never occurred to Defendants, however, 

that the same insights Wixted provided about the science of memory and applied by Defendants 

to the 2010 statement also called into question Lopez’s earlier statements, including those given 

at Rivera criminal trial in 1990, which was two years after his first recorded memory. As Wixted 

conceded at his deposition and again on the witness stand, the same problems with human 

memory that might have infected Lopez’s 2010 statement (the one that Defendants were 

attacking) also applied to Lopez’s 1988 and 1990 statements and testimony (the one Defendants 

did not want to attack). Ex. 16 at 4037-39. 

Defendants’ suggestion that it was somehow improper to ask Wixted questions on that 

point was, and remains, ridiculous. Doc. 713 at 25-26. Parties are permitted to cross-examine 

experts about the subject of an expert’s direct examination. United States v. Bozovich, 782 F.3d 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 82 of 157 PageID #:40562
70 

814, 816 (7th Cir. 2015) (discussing Rule 611(b)); see also Deitchman v. E.R. Squibb & Sons, 

Inc., 740 F.2d 556, 562 (7th Cir. 1984) (remarking that expert cross-examination should not be 

limited because “[c]ross-examination is a fundamental right that a court should abridge only to 

curb abuse”); Bronston v. United States, 409 U.S. 352, 358-59 (1973) (“It is the responsibility of 

the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, 

prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize 

the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools 

of adversary examination.”). The entire focus of Wixted’s direct examination was his theory 

about how human memory interplayed with the Lopez fact pattern. 

The gist of Defendants’ complaint is that Wixted apparently had not recently reviewed 

the 1988 and 1990 Lopez statements to get ready for his testimony at trial, and so it was 

Defendants’ preference that Rivera only be allowed to ask Wixted about how his theory applied 

to the 2010 Lopez statement they were trying to discredit. That argument is nonsensical. In 

preparing his opinions in this case, Wixted reviewed the entire factual record, including each of 

the various Lopez statements about which Rivera’s counsel asked him. Ex. 62 (Wixted Report) at 

11-12; Ex. 63 (Wixted Dep.) at 15-17, 171-172, 330, 335. In addition, Defendants themselves 

asked Wixted to opine on the stand that certain parts of Lopez’s 1990 criminal trial testimony 

concerning the lineups incorporated purportedly false memories. Ex. 16 at 4008. Moreover, 

Defendants themselves questioned Wixted about Lopez’s post-conviction and deposition 

testimony. Ex. 16 at 4007. Defendants cannot complain that Plaintiff covered the very same 

statements on cross-examination. 

This conclusion is even more unavoidable when the Court considers that the main theme 

of Defendants’ direct examination of Wixted was that “the most important thing I can say today 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 83 of 157 PageID #:40563
71 

is focus on the initial memory test. It’s my constant message to the legal system.” Ex. 16 at 4015 

(emphasis added). Given that testimony, Defendants’ suggestion that the cross-examination 

should have been limited to the 2010 Lopez statement, and that the initial memory tests in 1988 

and 1990 were somehow out of bounds, is beyond frivolous. Defendants have not, and cannot, 

articulate any valid reason why Rivera should have been barred from asking about how Wixted’s 

memory theories impacted all of Lopez’s various statements, as opposed to just the one 

statement that Defendants were trying to undermine. 

Taking a step back, Defendants’ argument rests on a missing foundation. There is no rule 

that experts are immune from questions about critical but inconvenient facts in the record. On the 

contrary, when experts try to ignore facts in the record that cut against their side’s positions, it is 

common to ask them whether their opinions might change if they assumed the new facts. 

Williams v. Illinois, 567 U.S. 50, 69 (2012) (“Modern rules of evidence continue to permit 

experts to express opinions based on facts about which they lack personal knowledge[.]”); 

Pillsbury Co. v. Conboy, 459 U.S. 248, 259-60 (1983) (cross examination is intended to and 

often will produce information not elicited on direct). 

Defendants also complain that the Court supposedly ruled that certain subjects were out 

of bounds when it barred Rivera’s eyewitness expert Dr. Dysart and dismissed the suggestive 

identification claim. The argument made no sense when it was raised at trial, Ex. 16 at 4109-20 

(arguing incorrectly that the Court had ruled that these issues were “out of the case”), and it still 

makes no sense. As the Court said several times, if the Defendants had an earlier ruling that they 

thought applied to prevent Rivera’s questioning, they were obligated to present it to the Court. 

They could not present such a ruling at trial, and they still have not. See Ex. 16 at 4020 (Court 

repeating its admonition, “ I just told you if you’re going to rely on a ruling [that a subject was 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 84 of 157 PageID #:40564
72 

supposedly barred], I need to see the ruling”). Cutting to the chase, Defendants have 

conspicuously failed to explain how the Court erred. They are unable to cite a single case from 

any jurisdiction suggesting in any way that cross-examination should or could have been limited 

in the manner they suggest. That is because the law is the opposite. Bozovich, 782 F.3d at 816; 

Deitchman, 740 F.2d at 562; Bronston, 409 U.S. at 358-59. 

In addition, Defendants cannot identify a single objection anywhere in the Wixted 

transcript that should have been sustained but was not. There are none. Indeed, a large portion of 

Rivera’s cross-examination proceeded without objection—because the questions were not 

objectionable. Ex. 16 at 4037-39. (Wixted admitting, without objection, that “the same emerging 

memory theory that you talked about with Mr. Given with [in connection with Lopez’s 2010 

statement], that would also apply in 1990, right?”); Ex. 16 at 4018 (Wixted conceding, without 

objection, that children are more vulnerable to manipulation, and explaining why); Ex. 16 at 

4021 (Wixted admitting, without objection, that he had reviewed Lopez’s 1988 statement and 

acknowledging that this first account was important to Wixted’s memory theories); Ex. 16 at 

4029 (Wixted answering questions without objection about how his memory theories apply to 

Lopez’ 1990 statement); see also Ex. 16 at 4079 (defense counsel eliciting from Wixted on 

redirect that the “first properly conducted memory test,” e.g., the 1988 and 1990 Lopez 

statements, are more important than subsequent ones, e.g., 2010 Lopez statement). Again, 

Defendants cannot now object to questions they let pass without objection at trial, and they 

cannot surmount the high bar of the plain-error standard. Jimenez, 732 F.3d at 720. 

As for the questions to which Defendants did object, the Court quite properly overruled 

them. Ex. 16 at 4019 (court properly overruled scope objection to questions about “retrospective 

bias,” which was a subject defense counsel had elicited at length on direct); Ex. 16 at 4026 (court 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 85 of 157 PageID #:40565
73 

overruling Defendants’ scope objections to questions about the lineups where that topic was 

covered on direct, noting “I sat here listening to that. Overruled”); see also Ex. 16 at 4033 (the 

court responding to a speaking objection: “Well, I told you to make an objection, and I’ll sustain 

it. I’m sitting here, and no one’s objecting.”). Because Defendants cannot point to any objection 

that should have been sustained but was not, they cannot show the Court committed error.27

G. The Court Properly Exercised Its Discretion In Limiting the Cumulative 

Opinion Testimony of Wasilewski 

 Defendants next contend that the testimony of Wasilewski was unfairly limited. Doc. 713 

at 21-25. To say this issue was carefully considered by the Court would be an understatement. 

There was extensive briefing and argument on a motion in limine regarding reasonable diligence, 

a motion in limine regarding Wasilewski, a renewed motion to bar, a motion to reconsider, and a 

final motion to bar. The parties collectively filed 10 briefs, and the Court wrote three opinions 

and explained its reasoning on the record. Docs. 413, 449, 506, 531; Docs. 418, 457, 506, 550; 

Docs. 607 ; Docs. 609, 618, 619, 638; Doc. 641, 647; Ex. 3 at 334-36; Ex. 6 at 1352-58; Ex. 14 

at 3368. The Court’s conclusion that Wasilewski’s testimony should be limited was sound and 

Defendants present no new reason to revisit it. 

 There was another important factor justifying the Court’s decision to limit Wasilewski’s 

testimony: the issue became moot given how the testimony payed out at trial. As the Court’s 

order of June 22 explained, Defendants elicited the bulk of their Wasilewski opinions through 

the prosecutor Victorson at trial, such that Wasilewski’s testimony would have been “cumulative 

 27 If anything, the Court was overly solicitous to Defendants’ position, sustaining objections in 

order to keep things moving along for the very last witness in this lengthy trial. The parties were trying to 

finish the evidence on June 26, and Wixted testified late in the final afternoon of trial. By agreement, the 

cross-examination was on the clock with a time limit, and the Court in fact sustained objections limiting 

this cross-examination in a way that, in Plaintiff’s view, would have been appeal issues for Plaintiff had 

the verdict gone the other way. Ex. 16 at 4032-34 (Court remarking that everyone was on time limits, and 

then sustaining objections). Overruling objections that should have been sustained, as Defendants 

contend, was not a real problem for Rivera’s cross-examination of Wixted. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 86 of 157 PageID #:40566
74 

and likely to waste the jury’s time.” Doc. 638 at 8 n.4. 

This conclusion was correct. Defendants’ counsel examined Victorson, a former Cook 

County Prosecutor, about the very same subjects about which their motion complains 

Wasilewski should have been allowed to opine. For instance, Wasilewski would have testified 

that Wadas should have interviewed witnesses disclosed by the State, Doc. 713 at 23-24, but 

Defendants instead solicited Victorson’s opinion on that very subject, Ex. 13 at 3129; see also 

Ex. 13 at 3133 (Victorson confirming that “if Mr. Wadas thought it was important enough to 

follow up on the information in that [police] report, in light of his client having told him that he 

was in a lineup, he could have interviewed the police officers who were listed in the report”). 

Defendants also wanted Wasilewski to testify that Wadas could have interviewed the 

eyewitness, Lopez, or at least had an investigator do so. Doc. 713 at 23-24. Again, Defendants 

had already elicited that very same opinion from Victorson, who explained that prosecutors 

would not have blocked those attempts. Ex. 13 at 3133-34. Victorson added that nothing would 

have prevented Wadas from going out to talk with the owner of the store where Lopez claimed to 

be in order to impeach Lopez, Ex. 13 at 3142-43, and he testified that Wadas had other 

impeachment material on Lopez available to him prior to trial. Ex. 13 at 3147-48. 

 Victorson also opined that “when the [police] report disclosed that there were photos that 

had been inventoried of the people in the photo array, that was also something that Mr. Wadas 

could have gotten rather easily.” Ex. 13 at 3138-39 (state would have given them voluntarily, or 

he could have subpoenaed them). Victorson explained that it was “common” for defense lawyers 

to have to make multiple attempts to get all the information. Ex. 13 at 3130. These are points that 

Defendants wanted to bring out a second time through Wasilweski. Another Wasilewski point 

that Victorson covered was that if Wadas had filed a motion to suppress the identification of 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 87 of 157 PageID #:40567
75 

Rivera, then Wadas could have obtained more information about Rivera’s then-theory that there 

had been a first lineup. Ex. at 3139-41. Victorson confirmed that there was “nothing that would 

have prevented Mr. Wadas from filing such a motion if he felt that was worth pursuing.” Id.

 Reviewing Wasilewski’s report and Defendants’ motion, there are barely any opinions 

that Defendants’ counsel wanted to present but neglected to solicit from Victorson. If anything, 

counsel basically used the Wasilewski report as a template for his Victorson examination. For 

that reason alone, it was proper to bar Wasilewski from repeating the same opinions, as the law 

in the Seventh Circuit is clear that only one expert per subject matter is permitted. Sunstar, Inc. 

v. Alberto-Culver Co., Inc., 2004 WL 1899927, at *25 (N.D. Ill. Aug. 23, 2004) (“[T]his district 

generally prohibits a party from offering multiple experts to express the same opinions on a 

subject”) (citing form Final Pretrial Order, stating “Only one expert witness on each subject for 

each party will be permitted to testify absent good cause shown”). Moreover, the Court has wide 

discretion to bar evidence as cumulative, and it certainly did not abuse its discretion by doing so 

in this case. United States v. Curry, 977 F.2d 1042, 1050-51 (7th Cir. 1992) (district courts have 

broad discretion to exclude relevant expert testimony if it is redundant). 

It is also very much worth noting that the Court did permit Wasilewski to testify at trial, 

and some of his testimony covered the very subjects identified in Defendants’ motion. Ex. 15 at 

3668-3701. For example, Defendants’ motion argues that Wasilewski should have been able to 

testify that Wadas “could easily have gotten copies of the documents he claimed he did not 

receive,” Doc. 713 at 23, but Wasilewski did testify about how the criminal courts were 

organized and how discovery works in Illinois, including the obligations of prosecutors to 

furnish evidence requested by defense attorneys. Ex. 15 at 3674-75, 3692-94. Similarly, 

Wasilewski specifically testified that criminal defense attorneys had the ability to file motions 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 88 of 157 PageID #:40568
76 

seeking additional discovery, serve subpoenas for investigative files, and make requests to 

prosecutors that detectives should be required to bring their files to court. Ex. 15 at 3680-83.28

 Just about the only subjects left that Defendants are complaining Wasilewski was barred 

from talking about—namely, that Wadas should have checked hospital reports and taken scene 

measurements, Doc. 713 at 24—were not actually in Wasilewski’s report, Ex. 64 (Wasilewski 

Report), and they were never proffered at any point during trial. Defendants cannot now claim 

error for not being allowed to call Wasilewski to testify about things that they never disclosed or 

asked the Court to allow. Moreover, the Court’s original ruling on the Wasilewski motion in 

limine ordered that Defendants should make an offer of proof if they thought Wasilewski had 

relevant opinions that had been excluded. Doc. 550 at 3 n.2. Although Defendants asked the 

Court to voir dire Wasilewski on his qualifications, they never made any proffer along the lines 

specified by the Court setting out his potentially relevant opinions. That, too, dooms their 

argument. Mason, 233 F.3d at 1043; Wilson, 758 F.3d at 885; see also Gracia v. SigmaTron 

Int’l, Inc., 842 F.3d 1010, 1026 (7th Cir. 2016) (district court did not abuse its discretion when 

excluding a witness as cumulative, particularly where no proffer was made). 

Defendants argument about Wasilewski also fails on the merits for all of the reasons the 

Court has already expressed in its prior opinions. Docs. 531, 550, 638. Despite never having 

been one, Wasilewski sought to opine on what criminal defense attorneys should or should not 

have done in certain circumstances, which was not appropriate. The Court also correctly 

identified problems with his methodology and opinions not disclosed in his report. There was no 

abuse of discretion and, regardless, Defendants have completely failed to demonstrate sort of 

prejudice that could justify a new trial. 

 28 Vindicating the Court’s concerns about cumulativeness, the Wasilewski examination on other 

subjects—those that were permitted by the Court—were numbingly repetitive of Defendants’ 

examinations of Wadas, Victorson, and Murray. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 89 of 157 PageID #:40569
77 

H. The Verdict Was Not Against the Manifest Weight of the Evidence 

Lastly, the individual Defendants incorporate their Rule 50(b) motion, arguing that the 

verdict was against the manifest weight of the evidence, such that they should be granted a new 

trial. Doc. 713 at 26-30; Walden v. Illinois Central, 975 F.2d 361, 365 (7th Cir. 1992) (verdict set 

aside only if against manifest weight of evidence, damages are excessive, or trial was not fair). 

The Court has broad discretion to determine whether to grant a new trial. McNabola v. CTA, 10 

F.3d 501, 516 (7th Cir. 1993). In deciding whether a verdict is against the manifest weight of the 

evidence, this Court can weigh the evidence, assess credibility, and compare facts introduced at 

trial. Byrd v. Blue Ridge Rural Elec., 356 U.S. 525, 540 (1958). The power to grant a new trial 

“is not unlimited: a certain deference to the jury’s conclusions is appropriate.” Mejia v. Cook 

County, 650 F.3d 631, 633 n.1 (7th Cir. 2011). “This deference is encompassed within the 

manifest weight standard, which balances a decent respect for the collective wisdom of the jury 

against a duty not to approve miscarriages of justice.” Id. Jury verdicts deserve “great deference” 

in cases with “simple issues but highly disputed facts.” Latino v. Kaizer, 58 F.3d 310, 314 (7th 

Cir. 1995). “In weighing the facts, the district court is bound to the same evidence the jury 

considered, and can strike a piece of evidence from its weighing process only if reasonable 

persons could not believe it because it contradicts indisputable physical facts or laws.” Mejia, 

650 F.3d at 633. On this standard, Defendants’ weight-of-the-evidence argument fails for the 

forfeiture and merits reasons discussed above. 

* * * 

 To the extent the individual Defendants’ objections to the handful of rulings discussed 

were preserved, the Court’s rulings were not even erroneous, much less an abuse of discretion, 

much less the source of prejudice that would justify a new trial. Their motion should be denied. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 90 of 157 PageID #:40570
78 

V. THE CITY’S CHALLENGES TO THE MONELL VERDICT FAIL 

 A. The City Forfeited Many of Its Arguments for Judgment or A New Trial 

The City begins its Rule 50(b) motion by arguing that Rivera failed to prove at trial that 

evidence in the Valentin investigative files were suppressed and exculpatory. Doc. 707 at 2-3. 

But these arguments were not developed at all in the City’s Rule 50(a) motion, which asserted 

without elaboration that the evidence Rivera contended was suppressed was not exculpatory and 

incorporated other briefs by reference. Doc. 629 at 3-4. This Court ruled post-trial that the City 

had failed to adequately preserve this argument, Doc. 676 at 6 n.1, and the City’s 

more-expansive new arguments are certainly forfeited. 

The City also forfeited the following arguments now included in its Rule 50(b) motion: 

(1) that the evidence does not support a verdict against it on a theory that it allowed gaps in 

policy to exist, see Doc. 707 at 9-10; and (2) that the evidence does not support a verdict based 

on the City’s policies and practices (or lack thereof) governing Gang Crimes officers, see id. at 

14-15. Neither of these arguments is even mentioned in the City’s Rule 50(a) motion. Doc. 629. 

The City cannot pursue them now. Empress Casino, 831 F.3d at 823-24. 

Moreover, there are additional arguments in the City’s Rule 50 motions that are so 

undeveloped that they cannot justify judgment or a new trial and need not be addressed. Opp v. 

Wheaton Van Lines, 231 F.3d 1060, 1066 (7th Cir. 2000); see also Smith v. Northeastern Ill. 

Univ., 388 F.3d 559, 569-70 (7th Cir. 2004). They are identified with specificity below. 

In addition to Rule 50 arguments, the City regurgitates its Monell arguments under Rule 

59. Doc. 708. But its failure to assert them prior to judgment also forfeits them under Rule 59 

and dooms its request for a new trial. Willis v. Lepine, 687 F.3d 826, 838 (7th Cir. 2012); 

Jimenez v. City of Chicago, 732 F.3d 710, 719-20 (7th Cir. 2013). 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 91 of 157 PageID #:40571
79 

Given the City’s failure to preserve challenges to multiple Monell theories on which the 

jury was instructed, the City has forfeited or waived any argument that it is entitled to judgment 

or a new trial. Thomas, 604 F.3d at 305 n.4 (evidence supporting one of multiple theories of 

liability sufficient to sustain Monell verdict); Kossman v. Northeast Illinois R.R. Corp., 211 F.3d 

1031, 1037 (7th Cir. 2000). Such forfeitures are strictly enforced, and there is no reason to look 

past them here. The Court should start and end its analysis of the Monell verdict with the City’s 

failure to properly preserve arguments. Forfeiture aside, the evidence supports the jury’s verdicts 

on all theories of Monell liability, and Defendants’ motion should be denied on that basis as well. 

 B. Street Files Monell Theory 

1. Summary of the Factual Record Related to Street Files Monell Claim 

In 2010, the Area investigative file for the Valentin file was produced for the first time. 

Ex. 9 at 2202. Rivera's criminal defense attorney, now-Judge Wadas, had preserved his original 

file, thereby permitting a comparison. Ex. 6 at 1366. It turned out that Wadas never received a 

number of important documents from the investigative file during the criminal proceedings, 

including all of the GPRs. Ex. 6 at 1404, Ex. 10 at 2244-2248. The previously undisclosed 

documents included the August 27 GPR containing the critical first memorialization of Lopez’s 

account that put him “by the store” (instead of coming from the store, as was recorded in the 

police report); an August 27 GPR regarding Lopez that contradicted Defendants’ story that the 

gang book identification happened on that date; an August 31 GPR, a Rivera arrest report, and 

related hold and arrest reports, which together suggested that Rodriguez was at one point going 

to be charged with the shooting, that the police were preparing to put Rivera and Rodriguez in a 

lineup, and cumulatively that in fact the First Lineup occurred. Ex. 6 at 1385-88, 1403-12, Ex. 10 

at 2244-51, PX268, PX269. In addition, the investigative file contained Rivera’s rap sheet 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 92 of 157 PageID #:40572
80 

requested on August 27, two days before the police claim Rivera was selected from a gangbook 

and became a suspect. See supra at 3, 14. Wadas testified that he never received these materials. 

Ex. 6 at 1388-1389. He further testified that if he had, the documents would have provided 

powerful evidence of his client’s innocence, and the trial prosecutor Victorson admitted as much 

as well. Ex. 6 at 1387-1388, Ex. 13 at 3108. The City’s designee Hickey admitted that all of 

these documents should have been disclosed. Ex. 6 at 3292-95. 

Moreover, the original investigative file contained an index of the GPRs, two of which 

are missing to this day from the CPD's original version of the file. Ex. 4 at 757-763, Ex. 7 at 

1605-06. The missing GPRs are from the critical first two days of the investigation, August 27 

and 28. Id. Someone at some point apparently undid the metal fasteners on this original file and 

removed them, though no one could explain why the originals were taken out of the file, where 

they went, or what they said, or where they are now. See, e.g., Ex. 4 at 762-66, Ex. 15 at 3564. 

Witnesses testified that a lost or destroyed police report is a rare and unusual event. Ex. 4 at 

756-58, Ex. 6 at 3910-11. 

One of the Monell claims at trial turned on whether the failure to provide the 

investigative file during Rivera's prosecution was an aberration or, as Rivera alleged, a matter of 

both policy and practice. Rivera’s expert, Michael Brasfield, as well as the City’s own witness, 

James Hickey, testified that the CPD was fully aware that it had a “street file” problem in 1982 

and 1983, after a whistleblower disclosed the existence of the problem in the George Jones case. 

In that case, highly exculpatory information was buried in a street file—in essence, a parallel set 

of police files kept by the homicide detectives at the Area containing investigative notes and 

documents that never made it into the official file produced to criminal defendants, Ex. 9 at 

2182-2184—and resulted in the wrongful prosecution of Mr. Jones. Based on the revelations in 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 93 of 157 PageID #:40573
81 

Jones, a class action called Palmer v. City of Chicago was filed, and in federal hearings in that 

related litigation the City was put on notice that it had a systemic problem. Ex. 9 at 2182-93, Ex. 

13 at 3210-15; 3240-46, Ex. 14 at 3275-76. Those problems included: (a) allowing documents 

created during homicide investigations to be placed in unofficial parallel files kept by the 

detectives, commonly referred to as street files, (b) failing to document pertinent investigative 

leads and other information in police reports, in essence concealing whole branches of the 

investigation, and (c) failing to disclose exculpatory and impeaching material contained in street 

files to prosecutors and criminal defendants. 

The question in this trial was whether the so-called reforms the City put in place, in the 

form of Detective Division Special Order 83-2 and its subsequent revision 86-3, were facially 

and obviously deficient, and whether the problems revealed during Jones and Palmer persisted 

through the time frame that Rivera was prosecuted. The jury found against the City on these 

claims, with respect to both the City’s official policies as well as its practices. 

Regarding the former, Riveras expert, Michael Brasfield, testified that the City's written 

policies were plainly deficient. Among other things, he opined that the new policy: (a) retained 

the decentralized record-keeping system that perpetuated the system of multiple, unofficial 

parallel files at the heart of the Jones and Palmer litigation; (b) did not cover gang crimes units 

and other investigators involved in homicide investigations; (c) did not define what constitutes 

relevant information that must be documented in reports; and (d) did not contain instructions to 

ensure that the investigative file and each of the various other parallel sources of police 

documents were searched for and produced in response to criminal court subpoenas. Ex. 9 at 

2186-2193. Most critically, the new Special Order instructed City employees to disclose 

inventory sheets contained in investigative files, but did not direct City employees to actually 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 94 of 157 PageID #:40574
82 

disclose the investigative files themselves, nor were clerks provided any written guidelines in 

that regard, much less any training. Ex. 9 at 2189-2190. And making the policy deficiencies all 

the more egregious, the federal judge overseeing the Palmer hearings issued orders expressly 

identifying many of the problems above, placing the City’s policymakers on full notice that these 

were failures that needed to be corrected to prevent additional constitutional violations like the 

one George Jones experienced. Ex. 9 at 2185-2186. 

Both Brasfield and the City’s designee Hickey testified that the City was well aware that 

there was substantial resistance from CPD officers to changing their documentation and 

file-keeping practices, yet there was a single, three-hour training for detectives on the new 

policy, and no monitoring or auditing to ensure that the new policy was actually followed. 

Brasfield opined, and Hickey all but conceded, that these efforts were insufficient to overcome a 

problem as entrenched as this one was. Ex. 9 at 2186-2187, Ex. 14 at 3315. The only person at 

trial who thought that made sense was the City’s expert, Jeffrey Noble, who has made more than 

$400,000 defending City policies and practices in more than 20 other cases. Ex. 14 at 2186-2187. 

It was no surprise then that, when it came to the City’s practices, the problems identified 

during Jones and Palmer continued unabated. Brasfield conducted a comprehensive audit of the 

street files problem, examining an agreed-upon representative sample of files from other 

homicide investigations. Ex. 9 at 2200-28. Analysis of that data revealed that in 61% of the 

cases, the requirement to create GPRs was not being complied with, in 37% of the cases the rule 

requiring inventories was disregarded, and in 92% of the cases documents contained in the 

unofficial investigative files were not making it to the criminal justice system; and overall. Ex. 9 

at 2210-15, 2248. A full 100% of the files contained evidence of failures to follow the 

post-Palmer policies. Id. at 2214-15. Defendants’ expert, Bernard Murray, chose not to conduct 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 95 of 157 PageID #:40575
83 

his own corresponding review to see if the practices changed after the new policies were enacted, 

and so Brasfield’s testimony on these issues was unrebutted. Ex. 16. at 3912-3919. 

Brasfield also testified that his review of the City’s official permanent retention files 

revealed that the problems identified in Jones and Palmer continued in additional ways. For 

example, he found that the permanent retention files were unlike the homicide files he saw in 

other municipalities, in that they contained only single chapter in a story, as he put it. Ex. 9 at 

2174-2179. In other words, homicide investigations typically have branches that produce leads, 

and others that end up being dead-ends; but the CPD permanent retention files he reviewed only 

told the single branch of the story that let from crime to charged suspect, in effect excluding 

alternate suspects, different witnesses, and other types of materials a criminal defendant would 

need to build a defense. Ex. 9 at 2218-20. Defendants’ expert, Bernard Murray, failed to rebut 

this testimony. Ex. 16 at 3912-19. 

Finally, Brasfield also compared criminal defense files to their corresponding 

investigative files in order to determine whether, at the end of the day, materials from the 

unofficial investigative files was getting to criminal defense attorneys. His findings were 

troubling. Materials from the investigative file were missing from more than 90% of the defense 

files, and 74% were missing police notes, the sort of crucial street file material that had been the 

subject of Jones and Palmer. Only 8% included the inventories that were supposed to be 

disclosed to defense attorneys under the new policies. Ex. 9 at 2226. Brasfield and Murray 

testified about multiple cases—e.g., Nathson Fields, James Kluppelberg, Samuel Robinson, 

Demetrius Johnson, David Quinones, Miguel Borrotto, and Curtis Kirkland—in which the 

withheld materials were the type of important investigative material that by all accounts should 

have been turned over, and that a jury could deem material. PX 145A (James Kluppelberg), PX 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 96 of 157 PageID #:40576
84 

146A-C (Nathson Fields), PX 154 (Samuel Robinson), PX 154J (Demetrius Johnson); PX 154K 

(Curtis Kirkland), PX 154N (David Quinones), PX 154Q (Miguel Borrotto); Ex. 10 at 

2252-2271; Ex. 16 at 3846-54 (Defense expert Murray), 3857-61, 3870-71 (Murray re: 

Robinson), 3872-83 (Murray re: Johnson, Quinones, Borrotto, Kirkland), 3884-85 (Murray re: 

Pacheco), 3886 (Murray re: Fields). Of the multiple analyses of practices that Brasfield 

conducted, supra, this was the only one on which Defendants’ expert Murray conducted his own 

analysis, focused on the corresponding State’s Attorney’s Office files. Defendants’ argument 

was that the State’s Attorney files would contain the information missing from the criminal 

defense file, purportedly absolving CPD of responsibility. The problem is that the evidence 

ended up being to the contrary. As Murray was forced to admit, he consistently found that 

material missing from criminal defense attorney files was also missing from the prosecutor files, 

including many of the specific examples above of highly exculpatory material missing from 

criminal defense files. Ex. 16 at 3846-54, 3857-61, 3870-71, 3872-83, 3884-85, 3886, 3912-19. 

Perhaps the biggest problem with the City's policies and practices was the Gang Crimes 

hole. Gang Crimes officers were out on the street solving crimes, and were fully involved in 

homicide investigations, as they were in Valentin. Ex. 14 at 3347-51, 3386-88, 3397, Ex. 8 at 

1694; 1702; 1766-1767. As such, they should have been subject to the rules governing detectives 

with regard to documenting investigative steps and ensuring that such material was produced to 

the criminal justice system. Ex. 9 at 2191. It did little good to make rules requiring detectives to 

preserve notes and disclose information if the Gang Crimes officers were all going to remain 

exempt from those rules. But this is exactly what happened. Ex. 14 at 3290-92, 3347-53, 3355, 

3359-63, 3386-91, 3397, 3411, 3415, 3425-29. This despite that the City designee James Hickey 

recommended, in the early 1980s when the City was discussing policy changes, that gang crimes 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 97 of 157 PageID #:40577
85 

be included in the new Special Orders. Id. at 3290-91; Ex. 9 at 2195, Ex. 14 at 3481. His 

proposal was rejected, and as the City’s designee James Spratte testified, rather than being 

subject to rules, the Gang Crimes officers were given free reign. They were permitted to operate 

almost entirely outside the system and to keep their own personal notes in their own set of 

parallel files, all without being subject to the training or the Special Orders applicable to the 

detectives they worked with on investigations. Id. at 3347-53, 3355, 3359-63, 3386-91, 3397, 

3411, 3415, 3425-29. They even created additional documents like daily activity sheets (or 

“humpers”) that were full of investigative details that would be highly relevant to mounting a 

defense (e.g., whether a witness was spoken to on, say, August 27 or 29, or whether there were 

efforts to locate a witness on, say, August 31). Ex. 9 at 2198-2200, Ex. 10 at 2420, Ex. 14 

at 3347-51, 3386-88, 3397, Ex. 16 at 3902-06, PX 177. In fact, the daily activity sheets were 

expressly intended to “not include information normally contained on Official Department 

reporting documents.” PX 177, i.e., an “official but unofficial report.” In essence, the City 

allowed the Gang Crimes officers to maintain completely off-the-books files, despite the known 

and obvious constitutional harms that could result. 

2. Street Files Monell Theories Not Challenged in Any of Defendant’s 

Post-Trial Motions are Forfeited and Independently Support Liability 

 The City has not challenged Monell liability based on actions of policymakers. The City’s 

forfeiture on that theory means the Monell verdict is sufficiently supported, and no further 

analysis is required. Nevertheless, out of an abundance of caution, Rivera explains the evidence 

at trial that fully supports liability on this theory. 

 The City is liable for the deliberate conduct of officials whose acts may fairly be said to 

be those of the municipality. Board of County Commissioners v. Brown, 520 U.S. 397, 403-04 

(1997). If the jury could reasonably conclude based on the evidence that authorized decision 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 98 of 157 PageID #:40578
86 

makers made a decision that violated Fields’s constitutional rights, the City is liable. Pembaur v. 

City of Cincinnati, 475 U.S. 469, 481 (1986). 

 The jury’s verdict on the policymaker theory is supported by evidence discussed above in 

connection with the express policy theory—policymakers admittedly on notice of a problem took 

patently inadequate action, consciously choosing not to adopt obviously needed policies and 

creating a risk that investigative materials would be suppressed, which is exactly what came to 

pass in Rivera’s case.29 The decision to intentionally omit policies necessary to solve a problem 

is intentional conduct by policymakers sufficient to sustain the Monell verdict on this theory. 

Vodak v. City of Chicago, 639 F.3d 738, 747-48 (7th Cir. 2011) (actions of policymakers about 

how to implement policy gives rise to liability). These actions at minimum demonstrate 

deliberate indifference by policymakers, creating a risk of harm to which Rivera was exposed. 

King v. Kramer, 680 F.3d 1013, 1021 (7th Cir. 2012) (where municipality has “actual or 

constructive knowledge that its agents will probably violate constitutional rights, it may not 

adopt a policy of inaction”); Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (policymaker 

aware of a systematic lapse in policy who fails to correct renders municipality liable). 

 Given that the City advanced no argument in support of a new trial on the final 

policymaker theory, and that it is the City’s burden to demonstrate the jury was irrational, there 

was also sufficient evidence for the jury to conclude that the City delegated policymaking 

authority to the individual line employees of the subpoena service unit by giving them no 

 29 The jury instructions and the law justify a jury’s reasonable conclusion that the policymaker 

could have been the Superintendent, who the evidence shows was on notice of the street files problem and 

explicitly participated in formulating the City’s policy response, Ex. 9 at 2184-85, 2200, Ex. 13 at 

3214-15, 3244, but also could have been the City’s designee Hickey, who actually wrote the policies on 

which the CPD signed off. Ex. 13 at 3214-18, 3222. Hickey was exercising delegated authority to make 

policy in this area, which gives rise to municipal liability. Jury Instructions, Doc. 671 (“This includes the 

Superintendent’s approval of a decision or policy made by someone else.”); Valentino v. Village of South 

Chicago Heights, 575 F.3d 664, 675-78 (7th Cir. 2009)). 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 99 of 157 PageID #:40579
87 

policies, training, or oversight. Ex. 14 at 3277-80 (no training or instruction), 3283-85 

(responding to requests is an “art form”), Ex. 9 at 2178-79, 2188-91; Valentino, 575 F.3d at 

675-78. Without any guidelines, constraint, or review, these employees made policy through 

their actions as they responded to subpoenas and file requests. Rivera’s counsel made multiple 

requests for the police files in the Valentin case but never received the investigative file. 

Municipal liability against the City is fully established based on this unchallenged theory alone 

3. Street Files Challenges Included in the City’s Rule 50(a) and Rule 50(b) 

Motions 

 The City’s Rule 50(a) and Rule 50(b) motions challenge the sufficiency of evidence 

supporting the express policy, widespread practice, and failure to train Monell theories. The 

City’s arguments fail. 

(a) The Failure to Allege A Due Process Violation by Any Individual 

Defendant 

 The City argues that Rivera cannot sustain a Monell verdict based on the street files 

theory because Rivera failed to prove an underlying Brady violation occurred in his case. Doc. 

707 at 2-3. This argument is forfeited, and otherwise without merit. 

 The City’s Arguments are Forfeited. As an initial matter, the City’s arguments that 

particular items of evidence are not material are largely forfeited because the City’s Rule 50(a) 

motion made only a cursory argument that two specific withheld documents were not 

material—the August 27 “by the store” GPR and the August 27 rap sheet. Doc. 629 at 3-4. The 

City newly argues in its Rule 50(b) motion that the inventory sheet indicating that two additional 

GPRs were missing was not material. This argument has been forfeited. So too are its arguments 

with regard to the rest of the withheld material that are not discussed in either its Rule 50(a) or 

Rule 50(b) motions, including all of the GPRs, arrest reports and hold/release reports providing 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 100 of 157 PageID #:40580
88 

evidence of a first lineup, the August 27 GPR undermining the claim that the Lopez gangbook 

identification occurred on that date. 

 For the remaining two documents for which the City did not forfeit its argument, the 

City’s argument is contrary to the evidence. Rivera presented ample evidence that evidence 

related to each of these two documents could have severely undermined the prosecution, Ex. 6 at 

1403-1412, Ex. 13 at 3149-3151, Ex. 10 at 2249-2251, supra at 14, 29, especially when 

considered in the aggregate as they must. Wearry, 136 S. Ct. at 1007. The August 27 rap sheet 

undermined the entire theory by which Rivera became a suspect, strongly suggesting a frame-up 

calling into question Lopez’s initial gangbook identification. Likewise, the “by the store” GPR 

would have eviscerated the credibility of the sole eyewitness, Lopez, and the reliability of his 

purported identification. 

 Also forfeited is the City’s reasonable diligence argument, raised for the first time in its 

Rule 50(b) motion. Even if not, Rivera presented ample evidence of defense attorney Wadas’ 

diligence. He issued discovery and requested additional documents from prosecutors several 

times, and they confirmed that he had everything they had (further evidence that the Brady

material was in fact withheld from the defense and the prosecution). Ex. 6 at 1377-1380. Both 

Wadas and the prosecutor Victorson testified that Wadas knew the prosecutors for a long time 

and it was appropriate for him to trust them that they had given him everything they had, and 

Victorson went even further, stating that Wadas’ entire effort as defense counsel was diligent. 

Ex. 13 at 3093, 3113-3114. The jurors were certainly entitled to credit all of this evidence and 

reject the City’s reasonable diligence argument, as they did. 

 The City’s Arguments are Without Merit. In any event, for all of reasons discussed above, 

see supra at 29, 35, Rivera submitted ample evidence to support the jury’s finding of a Brady

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 101 of 157 PageID #:40581
89 

violation, based on any one of the numerous documents in the investigative file withheld from 

defense attorney Wadas. And even if there was some gap in the evidence of the individual 

defendants’ liability for the Brady violation, the City would still be liable. This is because the 

Seventh Circuit’s rule, set forth in Thomas v. Cook County, is that “a municipality can be held 

liable under Monell, even when its officers are not, unless such a finding would create an 

inconsistent verdict.” 604 F.3d 293, 305 (7th Cir. 2010); see also Swanigan v. Chicago, 775 F.3d 

953, 962 (7th Cir. 2015) (“In some civil-rights cases, . . . a verdict in favor of individual 

defendants would not necessarily be inconsistent with a plaintiff’s verdict on a factually distinct 

Monell claim.”). Numerous judges in this district have applied this rule that a municipal policy 

can cause a constitutional deprivation even if a jury finds the individual officers not liable. See

Bonds, 2018 WL 1316720, at *4-5 (N.D. Ill. Mar. 14, 2018); Pickett v. Dart, 2014 WL919673 

(N.D. Ill. Mar. 10, 2014); Wells v. Coker, 2014 WL 716518 (C.D. Ill. Feb. 25, 2014); Martinez, 

2011 WL 4686438, at *1; Cage, 2010 WL 3613981, at *1; Evans v. Chicago, 2010 WL 3075651 

(N.D. Ill. Aug. 5, 2010).30 

And the same would be true in this case. A verdict for Rivera on his Monell theory that 

the City’s file-keeping system prevented transmission of exculpatory information to the criminal 

justice system would be entirely consistent with a verdict that each individual defendant was not 

personally responsible for the suppression of evidence. Put simply, the jury could have easily 

found that the individuals put items of evidence where they were supposed to in Chicago Police 

Department files, but that the City had no mechanism for ensuring those files got turned over to 

 30 Cases like this one, where a jury could find a policy caused a constitutional deprivation 

without finding misconduct by a particular officer, are different in kind from cases where municipal 

liability is premised on a particular officer’s use of force, such as City of Los Angeles v. Heller, 475 U.S. 

706 (1986). 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 102 of 157 PageID #:40582
90 

Rivera or attorneys involved in his criminal prosecution.31

That issue is moot, however, because in this case the jury found Defendants Guevara, 

Gawrys, and Mingey all liable on Rivera’s due process theory. The City, however, now argues 

that the fact that defendant McLaughlin was not found liable renders the City not liable because 

that would supposedly create an inconsistent verdict. Doc. 707 at 4-5. This argument, too is 

forfeited because it was not ever raised previously. 

Even considering the merits, the City’s argument is unsupported by law. Indeed, it 

attempts to turn the doctrine of Thomas v. Cook County (and the many cases that follow it) on its 

head. As discussed above, Thomas holds that a municipality can be liable even if no individual 

defendant is found liable; yet the City argues that even if an individual defendant (or three, in 

this case) is found liable, municipal liability is prohibited unless all of the defendants at trial are 

found liable. There is no legal support for this novel proposition. 

For good reason, as this case exemplifies. After all, there are numerous ways a jury could 

have reached a verdict against the City on Rivera’s street files Monell theory, without finding 

McLaughlin individually liable. First and foremost, the jury could have done so without finding 

any individual defendant liable, as set forth above. Second, that the jury found the three gang 

crimes defendants liable, but not detective McLaughlin, makes the argument even stronger. 

Those three defendants—Guevara, Gawrys and Mingey—are the ones who Rivera alleges 

 31 Plaintiff presented evidence demonstrating a number of ways City policies prevented 

investigative information from reaching the criminal justice system, but one example was the City’s 

response to subpoenas for documents from criminal defense attorneys through the so-called Subpoena 

Service Unit, which sometimes would—but sometimes would not—gather investigative materials from 

the detective division Areas and other units of the Police Department where investigative files relating to 

cases were kept. There were no written policies that governed the subpoena service unit and civilian 

personnel responding to subpoenas received no training. As a result, a systemic problem at the relevant 

time was that the City’s response to subpoenas sent for records would exclude material exculpatory and 

impeachment records in the investigative files. The jury could find that this policy of the City prevented 

Rivera from receiving investigative materials, even if the individual Defendants are not liable for that 

suppression. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 103 of 157 PageID #:40583
91 

engaged in a frame-up starting from the first day of the investigation when they pulled Rivera’s 

rap sheet and photo without any investigative basis to do so. At trial, Rivera made clear that it 

was Guevara who requested the rap sheet, with the purpose of framing Rivera, in conjunction 

with his partner Gawrys and supervisor Mingey. See supra at 31. The jury was entitled to credit 

the testimony of detective McLaughlin that she did not know about it, but that the three gang 

crimes Defendants did. 

If the jury reasonably concluded that the three gang crimes officers were part of the 

frame-up but McLaughlin was not, as it certainly appears they did, then the obvious implication 

is that it was these conspiring defendants that concealed exculpatory evidence that would have 

thwarted their intended prosecution and conviction. Indeed, the jury could have concluded that it 

was the three gang crimes officers who removed two pages of GPRs from the investigative file, 

or concealed the GPRs and first lineup documents until after trial. 

Likewise, the jury could have also found that the three gang crimes defendants took notes 

of their investigative activities and prepared daily activity worksheets as required, but suppressed 

these records to deprive Rivera of evidence of his innocence (e.g., that they were able to locate 

Lopez on August 31, that they interviewed Nieves and Rodriguez as suspects). This, too, would 

independently support a liability finding against the gang crimes defendants and against the City 

on the street files claim, even without a finding against defendant McLaughlin. These and myriad 

other possibilities render the verdict entirely consistent 

(b) Express Policy Theory 

 The City asserts that the express policy theory fails because Rivera failed to present 

evidence that the policy was unconstitutional as written, rather than simply containing minor 

deficiencies. Doc. 707 at 5. This argument misconstrues the policy claim in this case, and ignores 

the ample evidence of an express policy presented at trial. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 104 of 157 PageID #:40584
92 

 The City’s Arguments are Forfeited. As discussed above, Rivera’s express policy theory 

is based on the plain failures of the City’s policies, which the City knew would produce 

constitutional violations. These include the express policies in Special Orders 83-2 and 86-332

that: (a) require the continued the use of a parallel file system in which notes and other 

investigative materials were kept in unofficial files in the Areas, and other locations scattered 

throughout the City, and deliberately segregated from typed police reports kept in the “official” 

secured permanent retention files; (b) leave it up to detectives to define and determine what 

constitutes relevant information that must be documented in reports, without instruction or 

guidance; (c) explicitly require that an inventory log (basically a log of the documents in the 

investigative file) be produced to prosecutors and defense attorneys, but not the actual documents 

contained in the investigative file or in each of the various other parallel sources of police 

documents; and (d) deliberately excluded Gang Crimes units and other investigators involved in 

homicide investigations from the new Orders’ documentation and filekeeping requirements. At 

trial, Rivera also presented evidence that (e) Gang Crimes units followed an express policy of 

documenting what they did each day, including on homicide investigations, in off-the-books 

daily activity worksheets (or “humpers”) that were not disclosed to anyone outside of their unit, 

but on which they were explicitly instructed by policy to document things they were not 

documenting in “Official Department reporting documents.” 

 Of these theories, the City only challenged theories (a), (b) and (c) in their Rule 50(a) 

motion, (Doc. 629 at 8), and in each case with only one sentence of explanation. Theory (d) was 

challenged for the first time in Defendants’ Rule 50(b) motion, Doc. 707 at 9-10, 14-15, and 

theory (e) is not challenged in any of the City’s motions. Accordingly, all of these arguments are 

 32 It is undisputed that Special Order 83-2 and 86-3 are very similar. Special Order 86-3 was 

operative at the time of the events at issue. Doc. 707 at 5. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 105 of 157 PageID #:40585
93 

forfeited, including (a)-(c) which are so cursory and undeveloped as to be deemed forfeited. See

Opp, 231 F.3d at 1066; Smith, 388 F.3d at 569-70; supra at 11. 

 The City’s Arguments are Without Merit. Turning to the merits, the City’s Rule 50(b) 

motion makes a single express policy argument: that Special Order 86-3 does not explicitly “call 

for the concealment of exculpatory evidence,” Doc. 707 at 5, and so it cannot be an 

unconstitutional policy. This is an erroneously cramped view of what constitutes an express 

policy. Monell liability attaches when municipal action, in the form of policy statements, 

ordinances, regulations, or other decisions officially adopted, causes a violation of constitutional 

rights. Glisson, 2017 WL 680350, at *5. A single application of a deficient express policy 

resulting in a constitutional violation is enough to establish liability. Calhoun v. Ramsey, 408 

F.3d 375, 379-80 (7th Cir. 2005). A conscious municipal decision not to adopt or to omit needed 

policies creates liability under this framework. Glisson, 2017 WL 680350, at *5-6. 

 In that light, the City’s attempt to tackle theories (a)-(e) above in sections on “gaps” in 

the City’s investigative file policy and elsewhere, and then treat them as widespread practice 

claims, Doc. 707 at 9-11, 14-16, are therefore misplaced (and forefeited). The policies the City 

put in place, including the omission of policies that City officials knew were needed based on 

specific guidance being provided by a federal judge during injunction hearings, are all part of 

Rivera’s express policy claim.33 The jury reasonably concluded that the City’s express policies 

 33 The City relies on Calhoun v. Ramsey, 408 F.3d 375 (7th Cir. 2005), to argue that the gap in 

policy should be analyzed as a widespread practice. Dky. 708 at 8-9. But that case does not so hold, and 

in fact supports Plaintiff’s theory. First, Calhoun affirms the principle that another way “of complaining 

about an express policy is to object to omissions in the policy.” Id. at 380 (emphasis added). Second, 

Calhoun reiterates that the relevant inquiry is whether there is a “true municipal policy at issue, not a 

random event.” Id. Here, the evidence clearly shows that there is a true municipal policy at issue: Special 

Order 83-2 and 86-3. And those policies contained a series of express instructions about what was 

required and who had to follow them; instructions that the City knew from Jones and Palmer created 

serious constitutional risks, but nevertheless chose to enact. In any event, even if the Court were to 

analyze any of these policies as “gaps” in policy, and in turn as widespread practice claims, the City was 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 106 of 157 PageID #:40586
94 

violated Rivera’s constitutional rights. 

 The jury heard the City was firmly on notice in the years preceding the Valentin 

homicide that it had a citywide problem creating, maintaining, and producing investigative 

material in police files. Specifically, the City knew that police kept street files containing 

investigative materials that were not produced to the criminal justice system. Ex. 9 at 2193-2195, 

Ex. 10 at 2379-2380; 2440-2442, Ex. 13 at 3247-3252, Ex. 14 at 3480-3486, Ex. 16 at 

3900-3902. City policymakers responded by promulgating facially deficient written policies, 

Special Orders 83-2 and 86-3. Ex. 3250-51, Ex. 14 at 3286-3288; 3490, Ex. 10 at 2323-2328. 

 Beginning with the most obvious and clearly express, written policy (i.e., not a gap in 

policy), the Special Orders contained an express instruction that only one thing from the 

investigative file needed to be disclosed: the inventory log. Ex. 10 at 2247-2248, Ex. 13 at 

3229-3231; 3247-3248. That is, the policies governing the CPD’s transmission of investigative 

files to prosecutors and others in the criminal justice system expressly instructed personnel to 

disclose the inventory log, but not the full contents of the file. This clearly express policy alone 

is sufficient to uphold the Monell verdict. 

 In addition, the policies dictated that police investigators could choose what 

documentation to create based on a subjective evaluation of what they deemed “relevant,” Ex. 9 

at 2178-2179, Ex. 10 at 2438, and expressly approved parallel investigative files for homicide 

investigations, Ex. 10 at 2247-48; 2274; 2437-2439. Even though the City was purportedly 

responding to the street files problem, the policies contained no command that street files should 

not be kept. Ex. 13 at 3247-3252. They also omitted written directives to the subpoena service 

unit, which responded to prosecutors and to subpoenas. Ex. 14 at 3277-3280. 

 

clearly on notice of the problem with the policy and moreover, Plaintiff has provided numerous other 

examples of Brady violations stemming from the municipal policy at work. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 107 of 157 PageID #:40587
95 

 The jury also heard evidence that the new policies intentionally did not apply to any CPD 

employees except for detectives, such that special investigation units participating in homicide 

investigations, like gang crimes, were exempted from the rules, even over the recommendation 

of City designee Hickey. Ex. 14 at 3290-91. Finally, the jury also heard evidence that in addition 

to being exempt from the Special Order applicable to the other investigators involved in 

homicide investigations (detectives), Gang Crimes officers created off-the-books daily activity 

worksheets that by express policy were used to document investigative information not placed 

into official reports. Ex. 16 at, 3902-06. Each of these express policies represents a conscious 

decision on the part of the municipality, and each independently justifies liability on the express 

policy theory. 

 The City does not contest causation in their Rule 50(b) motion on the express policy 

theory, and accordingly the argument is forfeited. To the extent the City raises such an argument, 

it does so in its discussion of a gap in policy, and in just three sentences. And it does so despite, 

at worst, failing to raise the argument in its Rule 50(a) motion, and at best, raising it in a single 

sentence in its Rule 50(a) motion. Doc. 629 at 12 (“[W]ith all of Brasfield’s criticisms of CPD’s 

record keeping policies and practices, he never identified one that caused any documents to be 

withheld from Rivera in this case.”). These arguments are cursory and undeveloped (e.g., 

Brasfield could not possibly have opined that the policies and practices caused the suppression in 

this case, because he would have been impermissibly opining on an ultimate issue for the jury), 

and therefore forfeited. 

 And on the merits, the jury reasonably found that the application of the express policies 

above plainly caused the violations of Rivera’s constitutional rights. Consistent with the express 

policy, the City maintained a series of parallel files in the Valentin investigation, including an 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 108 of 157 PageID #:40588
96 

official permanent retention file at the Records Division, a separate investigative file in the 

Detective Area, and a set of Gang Crimes notes and other documents they maintained in their 

own unit, among others. Consistent with the express policy, the permanent retention file 

contained official police reports, but did not include many of the notes and other documents kept 

in the parallel files. Consistent with the policy, the investigators exercised their discretion to 

record only certain relevant details in police reports placed in the official file, excluding evidence 

of innocence like the initial description that Lopez was “by the store,” and Valentin’s statement 

at the hospital that he was confident the shooter was an Imperial Gangster. Ex. 6 at 1385-88; 

1403-12, Ex. 10 at 2244-51, PX268, PX269.Consistent with the policy, the parallel investigative 

file was not produced to Rivera before his trial and instead was hidden until after Rivera’s 

exoneration during civil discovery in this case; the file contained a number of investigative notes 

and other documents that, as repeatedly discussed above, were powerful evidence of a frame-up 

and an unreliable and manipulated sole eyewitness. Id. Also consistent with the policy, the Gang 

Crimes officers kept another parallel file with their own notes and daily activity worksheets that 

were exempt from the Special Order, and the jury could reasonably conclude from the evidence 

that the off-the-books Gang Crimes documents would have contained additional evidence of 

innocence, such as successful efforts to find Lopez on August 31, interviews with Jose 

Rodriguez and Felipe Nieves, and so on. Ex. 16 at 3902-06. Put simply, the express policies at 

issue have a direct causal link to the withheld Brady material in this this case 

(c) Widespread Practice Theory 

 A municipal custom not formally approved gives rise to liability when a practice 

pervades to an extent where acquiescence on the part of policymakers can be inferred. Glisson, 

2017 WL 680350 at *5 (citing Monell, 436 U.S. at 690-91); Davis v. Carter, 452 F.3d 686, 

691-92 (7th Cir. 2006). At this stage, the verdict should stand if it was rational for a jury to 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 109 of 157 PageID #:40589
97 

conclude based on the evidence that municipal officials knew of the widespread practice and 

failed to correct it. Daniel v. Cook Cty., 833 F.3d 728, 735 (7th Cir. 2016). 

 The City’s primary argument is that Rivera must show a pattern of repeated constitutional 

violations. Doc. 707 at 6-8, 9. Rivera presented more than sufficient evidence that City 

policymakers were indifferent to a pattern of constitutional harms, so he wins either way, but 

even before turning to that evidence the City is wrong on the law. A municipality is liable if its 

degree of fault rises to deliberate indifference—where policymakers choose a course of action 

among alternatives that presents a known or obvious risk of constitutional harm. Canton v. 

Harris, 489 U.S. 378, 388 (1989). As far as widespread practices are concerned, there must be 

evidence that policymakers were on notice of the risk presented by the practice and disregarded 

it. To be clear, it is knowledge and disregard of a risk of harm that is key. Glisson, 2017 WL 

680350 at *8. That clarified the cases are replete with statements that a Monell plaintiff need 

only show a repeated pattern of behavior that provides notice of the risk of harm, and not a 

repeated pattern of actual harms to others. Daniel, 833 F.3d at 734 (custom and notice shown by 

“evidence tending to show a general pattern of repeated behavior,” without “evidence that . . . 

systemic failings affected other[s]”).34 

 Here, the jury was eminently reasonable to conclude, based on evidence related to the 

Jones and Palmer litigation and its aftermath, that City policymakers had notice of the risk of the 

constitutional harm that Rivera suffered, and disregarded it. As discussed above, the record 

contains overwhelming evidence that policymakers were on notice of that risk, but failed to 

 34 Dixon v. Cook Cty, 819 F.3d 343, 348-49 (7th Cir. 2016) (notice of a systemic deficiency and 

inaction establishes liability); Thomas, 604 F.3d at 303 (policymakers “must have been aware of the risk 

created by the custom” of delayed responses to medical requests); Davis, 452 F.3d at 694-95 (rejecting 

same arguments City makes here); Estate of Moreland v. Dieter, 395 F.3d 747, 760-61 (7th Cir. 2005) 

(“[T]he plaintiff need not show that the policy, practice, or custom resulted in past deprivations of 

rights.”); Woodward v. CMS, 368 F.3d 917, 929 (7th Cir. 2004) (no “one free suicide” pass). 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 110 of 157 PageID #:40590
98 

remediate it sufficiently. See supra at 80. 

 Moreover, even assuming that the City were correct that municipal notice is confined to 

evidence of actual constitutional violations, the verdict must nonetheless stand because the jury 

was presented with ample evidence of such harms. Again, the jury heard direct evidence that, 

prior to Rivera’s wrongful conviction, City policymakers, including the Superintendent, had 

notice of Brady violations in Jones and Palmer. Id. They also heard evidence that Brady

violations based on investigative material suppressed in unofficial street files occurred in a 

number of other cases, including the prosecutions of, among others, Nathson Fields, James 

Kluppelberg, Samuel Robinson, Demetrius Johnson, David Quinones, Miguel Borrotto, and 

Curtis Kirkland; that highly relevant information was contained in the parallel investigative files 

and street files in each of those cases, but was not contained in criminal defense files; that in 

each one of those cases the investigative file records were also missing from prosecutor files; and 

that both Rivera’s and the City’s experts agreed that these were all documents that should have 

been disclosed to criminal defendants. PX 145A (James Kluppelberg), PX 146A-C (Nathson 

Fields), PX 154 (Samuel Robinson), PX 154J (Demetrius Johnson); PX 154K (Curtis Kirkland), 

PX 154N (David Quinones), PX 154Q (Miguel Borrotto); Ex. 10 at 2252-2271, Ex. 16 at 

3846-54, 3857-61, 3870-71, 3872-83, 3884-85, 3886, 3912-19. 

 Despite the evidence at trial of numerous cases in which specific police documents 

containing, alternate suspects, lineup shenanigans, and witness statements undercutting the 

police version of events were not found in defense attorney or prosecutor files, id., the City 

presses the argument in its Rule 50(b) motion that Rivera failed to prove a Brady violation in 

each of the cases. Doc. 707 at 7-8. But these arguments challenging Rivera’s examples of 

specific harms in specific cases were not raised in the City’s Rule 50(a) motion and are forfeited. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 111 of 157 PageID #:40591
99 

 Even turning to the merits, the City’s arguments are simply a re-hash of the arguments 

they made at trial, and that the jury reasonably rejected. In addition, the premise of Defendants’ 

argument—that for each example from another homicide file to support Rivera’s claim, it must 

present a perfect and complete chain of custody and the entire criminal transcript must be 

presented to the jury to assess materiality, Doc. 707 at 7-8—is unsupported, and simply wrong. 

Especially where, as here, both parties had access to all of the same files, and their experts were 

given an opportunity to debate all of these points. The jury ultimately sided with Rivera’s expert 

Brasfield, who reviewed hundreds of thousands of pages of relevant documents, including 

investigative files, criminal defense files, prosecutor files and criminal trial materials, and 

offered testimony that based on his review the particular examples of withheld police records 

were not disclosed to criminal defense attorneys and should have been under generally accepted 

police practices. It was particularly appropriate for the jury to accept this conclusion where 

Defendants’ expert Murray reviewed the same files and largely admitted that the Brady examples 

should have been disclosed but were not (indeed, were missing from both defense attorney and 

prosecutor files). Ex. 16 at 3846-54, 3857-61, 3870-71, 3872-83, 3884-85, 3886, 3912-19. The 

jury had everything it needed in the evidentiary record to reasonably find that Rivera presented 

ample evidence of constitutional harms resulting from the City’s widespread practices. 

 In addition to the above, the jury heard an overwhelming case that policymakers had 

notice of a custom of suppressing and failing to produce investigative materials, including: 

1. Hickey’s testimony that (a) prior to the Rivera investigation, he did an audit of 

investigative files throughout the CPD and determined that file production problems were 

present Citywide, a finding he reported to the CPD Superintendent, supra at 80; and (b) 

immediate policymaking action was necessary to bring the practice to a halt, id. at 80. 

2. The jury heard that the system put in place by the City was structurally deficient. Among 

other things, multiple parallel file systems persisted; inventories were not transmitted to the 

criminal justice system; and subpoenas were serviced by a unit with untrained employees, 

unbound by policy, and with no mechanism to search for responsive files, supra at 80-84. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 112 of 157 PageID #:40592
100 

3. Brasfield testified that the policies promulgated could not solve the problem because they 

left too much discretion to detectives about what to record in the official files; they did not 

solve the problem of multiple, decentralized files; and they did nothing ensure the 

subpoena service unit disclosed to criminal defendants all of the parallel files created for an 

investigation. supra at 81, 94. 

4. The only comprehensive analysis of hundreds of investigative files, summaries of which 

were introduced as substantive evidence, was almost entirely unrebutted, and showed that 

the practice continued from 1983 through the time of Rivera’s arrest and prosecution. supra

at 82 (Brasfield opining on analysis of investigative files). 

5. Comparison of the basement files to permanent retention files and criminal defense files 

demonstrate systematic underproduction of key categories of investigative documents. For 

example, Brasfield testified that in 61% of the cases, the requirement to create GPRs was 

not being complied with, in 37% of the cases the rule requiring inventories was 

disregarded, and in 92% of the cases documents contained in the unofficial investigative 

files were not making it to the criminal justice system; and overall more than 90% of 

criminal defense files were missing investigative material and 100% of investigative files 

contained evidence of failures to follow the new Special Orders. supra at 83. 

6. In addition, all of the evidence discussed above and below—regarding express policies, 

actions of final policymakers, and failure to train—was also probative of the widespread 

practice theory. 

 In response, the City mounted many of the same attacks on Rivera’s evidence that now 

appear in its Rule 50(b) motion, but the jury was free not to credit those arguments, and was 

instead correct to conclude that City policymakers had notice of, and were deliberately 

indifferent to, a custom that caused the violation of Rivera’s right to due process. There is no 

basis to set aside the verdict. 

 The City’s remaining arguments on the widespread practice theory are unpreserved and 

lack merit. For example, the City insists that Brasfield allegedly lacked foundation and employed 

a flawed methodology to conclude that the City withheld investigative files. But the City made 

no contemporaneous objections along these lines during Brasfield’s examination, Ex. 9 at 

2169-71, 2200-2226, 2247-48, and the City’s attempt to rehash the argument that the contents of 

the criminal defense files were not probative evidence of what police materials the criminal 

defense lawyers received continues to defy logic. Ultimately, the jury heard the City’s evidence 

that certain criminal defense files may have been incomplete, and reasonably chose not to credit 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 113 of 157 PageID #:40593
101 

the City’s argument about what inference to draw from that. For good reason: the jury heard that 

in every one of the other examples of Brady presented to the jury (Nathson Fields, James 

Kluppelberg, Samuel Robinson, Demetrius Johnson, David Quinones, Miguel Borrotto, and 

Curtis Kirkland), the City could not present evidence that the missing material was contained in 

the prosecutor’s files, which is what really matters. Ex. 10 at 2252-2271, Ex. 16 at 3846-54, 

3857-61, 3870-71, 3872-83, 3884-85, 3886, 3912-19. Rather than adopt the far-fetched theory 

that the prosecutor and criminal defendant both happened to lose the exact same document 

containing what happened to be exculpatory information, the jury was entitled to credit the 

common sense conclusion that the material had been suppressed in the parallel investigative 

files. Ex. 14 at 3292-3295(acknowledging what didn’t get turned over to Wadas). 

 For this same reason, the jury reasonably rejected the City’s argument that documents in 

the investigative files were handed over by the CPD to prosecutors. The City did not actually put 

on a page-by-page analysis of the files through Murray at trial to rebut Brasfield’s page-by-page 

analysis; instead, it largely had Murray attack Brasfield’s methodology, to little effect given the 

massive scope of Brasfield’s file review. Ex. 9 at 2200-2226; Ex. 16 at 3897-99, 3912-19. And 

on cross, Murray admitted that his own review of prosecutor files showed CPD investigative 

materials were missing from all of those files, and that numerous specific files bore this out. Ex. 

16 at 3846-54, 3897-99; see also id. at 3857-60, 3873-83, 3885-86. 

 In its Rule 50(a) motion the City makes variations of the argument that there is no link 

between the widespread practice Rivera proved and the facts of this case. First, they argue that 

there is a mismatch between the widespread problem the City was on notice of from Jones and 

Palmer, and the widespread practice proven in this case, Doc. 629 at 10; and second, that there 

was no evidence that the widespread practice Rivera proved—a failure to comply with the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 114 of 157 PageID #:40594
102 

Special Orders—had any causal relationship to the facts of this case because there was no 

evidence of a failure to follow the Special Orders in the Valentin case. Doc. 629 at 8-9. This 

argument was abandoned in the City’s Rule 50(b) motion, and therefore need not be considered. 

But to the extent it is, for all of the reasons discussed above, this argument totally misses the 

mark. Indeed, the widespread practice, at its core, is that information in investigative files was 

not being disclosed to defense attorneys, and of course there was evidence of that same practice 

in this case, since defense attorney Wadas’ file and his testimony demonstrated that there were 

numerous documents in the investigative file that he did not receive, supra at 29, 35, 79. Beyond 

that, Rivera argued that the City’s policymakers were on notice since Jones and Palmer of a 

practice of keeping investigative material in unofficial files not disclosed to defense attorneys, 

and that the practice continued unabated through the time of the Valentin investigation because 

the Special Orders simply were not followed. There is thus a direct link from that unabated 

practice to the Valentin investigation, where exactly such materials were not produced.35

(d) Failure to Train 

The evidence supported this theory as well. A municipality is liable “when the 

inadequacy in training amounts to deliberate indifference to the rights of the individuals with 

whom the officers come into contact.” Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). 

Deliberate indifference exists if the “need for more or different training” was “obvious.” Harris, 

489 U.S. at 390. Proof “can take the form of [](1) failure to provide adequate training in light of 

 35 Another argument abandoned in the City’s Rule 50(b) motion, but contained in the City’s Rule 

50(a) motion, attacks Brasfield for a “faulty premise” that as a matter of practice only the permanent 

retention file was disclosed to criminal defense attorneys. (Doc. 629 at 9.) But this misstates his 

testimony. Brasfield’s point was that only the permanent retention file, the repository of official police 

reports, was certain to be disclosed to criminal defendants. Ex. 9 at 2174-2179; 2193-2195; 2214-2218; 

2433-2434.. Beyond that, it was a crapshoot, because of the City’s ad hoc system in which investigative 

material sat in a number of different places without any clear guidance on what all those locations were or 

on what steps should be taken to ensure that all such material was produced. The evidence on this point is 

ample, see supra at 86, 94, and the jury was entitled to credit these arguments. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 115 of 157 PageID #:40595
103 

foreseeable consequences; or (2) failure to act in response to repeated complaints of 

constitutional violations by its officers.” Sornberger, 434 F.3d at 1029-30 (7th Cir. 2006). 

Notice of the need for more or different training was established by all the evidence 

discussed in the previous section. Indeed, after Jones and Palmer, Hickey audited the CPD and 

found an entrenched citywide practice that needed to be dislodged. Ex. 13 at 3240-3248. The 

City, however, gave no training at all to subpoena service unit employees, Ex. 9 at 2189-2190; 

Ex. 14 at 3486-3489, even though the training need was pronounced given the choice to retain a 

parallel decentralized file system with multiple files in multiple placed (rather than a single 

repository). Ex. 14 at 3440-3441; 3485-3486. And to the extent the City argues that all of this is 

insufficient, and that Rivera failed to show a “pattern of similar constitutional violations” to 

establish deliberate indifference, Rivera presented evidence of numerous specific examples of 

Brady violations discussed above. The jury could easily conclude this constituted a failure to 

train, and one that caused the suppression of Rivera’s street file.36

The City contends a one-time, three-hour training of all detectives necessitates judgment 

as a matter of law. Not so. First, training detectives had no effect on the staff of the subpoena 

unit, which was responsible for responding to subpoenas and disclosing materials to the criminal 

justice system. Ex. 13 at 3233-3235. Regardless, the jury could conclude that a single training 

was obviously insufficient to fix the engrained detective culture that the City’s own witnesses 

conceded, Ex. 13 at 3242-3243, particularly given Brasfield’s comprehensive analysis discussed 

above that customs continued unabated after the training took place. Even the City’s own 

designee could not say this training was sufficient to change the culture, Ex. 14 at 3314-3315, 

and the jury could conclude the training was deficient based on testimony of Defendants and 

 36 The City did not make a causation argument in its 50(a) or 50(b) motions relating to the 

failure to train theory. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 116 of 157 PageID #:40596
104 

other CPD staff showing an utter lack of understanding of the new policies. Ex. 14 at 

3292-3295(acknowledging what didn’t get turned over to Wadas); Ex. 14 at 3363-3369; 

3379-3381 (Spratte testifying that the policy prevented him from taking notes); Ex. 4 at 917-921; 

979 (McLaughlin acknowledging policy and practice do not conform); Ex. 8 at 1758-1760; 

1776-1779(Gawrys testifying that he wasn’t sure what the lineup policy was and whether it 

conformed to practice). 

Related to all of this, the City’s undisputed failure to conduct audits to ensure the policies 

were being followed, Ex. 9 at 2196; Ex. 14 at 3318-3319, further reinforces that the lack of 

training was obvious. The City tries to rely on the notion of “on-the-job training,” but the jury 

was entitled to discredit this argument about amorphous informal instruction that the City 

provide no details or specifics to support, Ex. 13 at 3233; Ex. 14 at 3279-3280, especially since 

the City failed to conduct audits to determine the extent to which the policies were being 

followed and what additional informal training was even needed. 

Finally, it was undisputed the City offered no training to Gang Crimes officers 

whatsoever, let alone on the new policies even though they were routinely participating in 

homicide investigations and developing evidence (as in this case). Ex. 14 at 3347-50, 3355, 

3388-91, 3394 (“Q: In Chicago, there was no training for Gang Crimes specialists, correct? A. 

Correct.”), 3395, 3397. Given the evidence in the record that the Gang Crimes officers were 

effectively serving detective functions, the notion that they received no training whatsoever is 

alone sufficient to support a failure to train verdict 

4. Street Files Challenges Included Only in the City’s Rule 59(a) Motion 

 The City also argues the Monell verdict is against the manifest weight of the evidence, 

such that they should be granted a new trial. Walden, 975 F.2d at 365. The Court has extremely 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 117 of 157 PageID #:40597
105 

broad discretion to determine whether to grant a new trial. McNabola, 10 F.3d at 516. In 

deciding whether a verdict is against the manifest weight of the evidence, this Court can weigh 

the evidence, assess credibility, and compare facts introduced at trial. Byrd v. Blue Ridge Rural 

Elec., 356 U.S. 525, 540 (1958). The power to grant a new trial “is not unlimited: a certain 

deference to the jury’s conclusions is appropriate.” Mejia v. Cook County, 650 F.3d 631, 633 n.1 

(7th Cir. 2011). “This deference is encompassed within the manifest weight standard, which 

balances a decent respect for the collective wisdom of the jury against a duty not to approve 

miscarriages of justice.” Id. Jury verdicts deserve “great deference” in cases with “simple issues 

but highly disputed facts.” Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995). “In weighing the 

facts, the district court is bound to the same evidence the jury considered, and can strike a piece 

of evidence from its weighing process only if reasonable persons could not believe it because it 

contradicts indisputable physical facts or laws.” Mejia, 650 F.3d at 633. 

 The City’s Rule 59(a) motion repeats all of its Rule 50(a) and Rule 50(b) arguments 

challenging Monell liability on the street files theory. But all of the City’s re-hashed 

weight-of-the-evidence arguments fail for the forfeiture and merits reasons discussed above 

(a) Argument that Special Order 86-3 Was Good Policy 

 The City argues that Rivera’s express policy theory is against the manifest weight of the 

evidence because the City’s own Rule 30(b)(6) witness (Hickey) and defense expert (Noble) said 

that it was a good policy, and that there was no “model policy” that prohibited the decentralized, 

parallel file system maintained by the City. Doc. 708 at 5. For all of the reasons above, the jury 

was entitled to reject this argument. 

 As an initial matter, Rivera’s argument at trial was not that the City had to have a 

centralized file system or else its policy was automatically unconstitutional; rather, Brasfield 

explained that departments around the country were using a centralized file system to ensure the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 118 of 157 PageID #:40598
106 

production of police investigative material in satisfaction of their Brady obligations. A police 

department that chose instead to have a decentralized file system dramatically increased the risk 

of failing to disclose Brady material, and so heightened safeguards would be necessary, 

including detailed written instructions and monitoring to ensure that material was gathered from 

all of the repositories of investigative material. Ex. 9 at 2178-2179; 2185-2195; 2323-2325. The 

consensus among both parties’ witnesses on this point was that there were no instructions, 

guidelines, or checklists of any kind to guide this process, and that the training and monitoring 

was minimal to non-existent. On these facts, a reasonable jury could easily conclude that the 

decentralized file system was woefully inadequate, particularly against the backdrop of the set of 

unconstitutional practices in Jones and Palmer that the City was ordered to correct. 

 Moreover, putting aside whether a decentralized file system was acceptable, two of the 

central failures of the policy are that it (1) contained no explicit instruction to disclose the 

investigative file to prosecutors and criminal defendants, and (2) omitted Gang Crimes officers 

routinely involved in homicide investigations. Even if a jury were to accept Hickey and Noble’s 

view that a parallel file system is acceptable, they could find the express policy inadequate on 

these separate grounds 

(b) City’s Evidentiary Challenge to Ruling Allowing Questioning of 

Defendant Mingey Fails 

 Just as Gawrys argued that his co-Defendants’ assertion of the Fifth prejudiced him, the 

City contends that Mingey’s assertion of the Fifth unfairly allowed Rivera to create a new 

Monell theory. Doc. 708 at 14. As discussed, this Court’s instruction to the jury permitted 

inferences to be drawn against Guevara and Mingey, not against other parties, and the jury is 

presumed to have followed those instructions. See supra at 63. Moreover, as discussed in 

connection with Gawrys, even if the Court had permitted the jury to draw an inference against 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 119 of 157 PageID #:40599
107 

the City, such an inference would have been permissible considering the relationship between 

Mingey and the City in this case. See supra at 64 (discussing First Midwest Bank, 2018 WL 

4126570, at *12, among other cases). Mingey is an agent of the City, and their interests are 

perfectly aligned. Accordingly, the City’s argument that it was unfairly prejudiced fails. 

 The City also implies that the Court erred in allowing Rivera to impeach Mingey with his 

own deposition testimony given earlier in this litigation, before he decided to assert a privilege. 

According to the City, the impeachment at Ex. 11 at 2515:5-14 was supposedly problematic 

because the deposition answer with which Mingey was confronted (concerning personal files 

maintained by Gang Crimes officers) was allegedly misleading. Rivera has three responses: (1) 

there was nothing misleading, since the deposition testimony was an appropriate fit to perfect the 

impeachment, see Ex. 73 (Mingey Dep.) at 135:3-12, 90:19-91:1, 147:2-20, 158:21-160:3 (all 

played at trial); (2) if the City thought there was other testimony that could illuminate the quoted 

portion, there was nothing stopping the City from clarifying by eliciting the proposed additional 

testimony during its own examination of the witness (and indeed, the Court encouraged defense 

counsel to do that when the objections became abusive); and (3) Defendants did not raise this 

objection and said nothing about a rule of completeness issue at the time. Ex. 11 at 2515. 

Second, the City complains generally about a purported lack of foundation for Rivera's 

questions. Notably, however, its brief conspicuously fails to identify any actual examples. It is 

unfair to Rivera to not identify particular questions supposedly lacking foundation so that Rivera 

can defend them on the merits, and it is unfair to the Court to not identify specific objections that 

were purportedly erroneous. 

The reason the City is unable to identify any questions that should not have been asked, 

or any foundation objections that should have been sustained, is because there are none. As the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 120 of 157 PageID #:40600
108 

Court observed at the time during a sidebar: “[A]ll I heard was foundation objection after 

foundation objection. In 90% of the time, there was deposition testimony that supported the 

answer that you were raising foundation objections to.” Ex. 11 at 2528. See also 2529 (“Well, if 

you made 20 foundation objections and 2 of them were good, which I would say is about the 

score, it’s really difficult for me being - playing a referee when every time you make - when 90% 

of the time when you make those objections, it turns out there is a foundation.”). 

 Third, the City relies on the testimony of its 30(b)(6) designees Hickey and Spratte, but 

they are hardly helpful to the City’s position. On the contrary, they demonstrate the ample 

foundation for Rivera’s questioning of Mingey. And, to the extent the City contends that 

Rivera’s Monell claim based on the deliberate exclusion of Gang Crimes officers from the 

Special Orders was based on improper questioning of Mingey, it is wrong. The claim was based 

on much more than questions posed to Mingey, as Hickey and Spratte (and others) demonstrate. 

 This evidence includes the following: the Jones-Palmer revelation about investigators 

keeping personal notes and files not subject to retention and disclosure was well-documented; 

the policy itself, plainly excluding a whole class of investigators, i.e., Gang Crimes officers, was 

admitted into evidence; Hickey admitted that he raised the issue of excluding Gang Crimes 

officers from the policy but nothing was done, Ex. 14 at 3290-3291; and Brasfield, Hickey and 

the City’s experts Noble and Murray admitted that Gang Crimes was omitted from the policy. 

Ex. 9 at 2186-2192, Ex. 14 at 3221-3222; 3250-3251, Ex. 14 at 3475-3476, Ex. 16 at 3900-3902. 

As a matter of practice, defense expert Murray admitted that in eight years as a gang crimes 

prosecutor he never saw the notes or daily activity worksheets that Gang Crimes officers created. 

Ex. 16 at 3900-3902. And while Hickey and the City tried to tell the jury that Gang Crimes 

officers were properly exempted because they supposedly never investigated homicides, that 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 121 of 157 PageID #:40601
109 

suggestion was a nonstarter in light of the evidence at trial that Guevara, Gawrys, and Mingey 

were all quite active in the Valentin investigation. 

 In addition, the City’s Gang Crimes designee, James Spratte, conceded everything needed 

to establish Rivera’s Monell claim, including everything Mingey was questioned about that the 

City now complains lacked foundation, including the following: 

 Gang Crimes officers participated in investigations to solve crimes, e.g., talking to 

witnesses, locating witnesses, and helping to develop leads. Ex. 14 at 3347-51, 3386-88, 

3397. 

 Yet Gang Crimes officers were not subject to the rules applicable to the rules applicable 

to other crime investigators, detectives; they did not have the same report writing and 

paperwork requirements that detectives had; and they had no specific rules that governed 

them. Id. at 3347-50, 3355, 3388-91 

 Gang Crimes officers took notes and passed written information to their colleagues as 

part of their job, but were not required to memorialize information in reports or to 

preserve their notes. Id. at 3349, 3351-55, 3360-63, 3388-90, 3425-28. 

 Gang Crimes officers were permitted to keep their own personal notes and files that they 

kept at home, in personal lockers, etc., and were not turned over to the police department 

for disclosure. Id. at 3362, 3388-89, 3415, 3425-29. 

 Gang Crimes officers kept additional "Incident Folders" in file cabinets located at the 

Gang Crimes offices, which were never turned over to the criminal justice system. One 

day, all of these file cabinets were lost. When various Gang Crimes units combined, the 

file cabinets were apparently moved to Maxwell Street, and have not been seen since. Id.

at 3415, 3422-24. 

 They also received no Gang Crimes training, and no training relating to Brady 

obligations. And the Jones and Palmer revelations led to no changes in how the Gang 

Crimes officers conducted their jobs. Id. at 3359, 3388-91, 3394-98. 

The City tries to explain all of this away by citing Spratte’s refrain that Gang Crimes officers 

were “intelligence-driven,” but the jury was entitled to reject Spratte’s testimony on this point as 

both unsatisfactory and farcical. See, e.g., id. at 3362-64, 3379, 3382-83. Especially combined 

with Spratte’s evasive responses on cross-examination. See, e.g., id. at 3350-51, 3356-57, 

3360-61, 3385. 

 Ultimately, two clear points emerge: (1) the evidence above provided ample foundation 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 122 of 157 PageID #:40602
110 

for the questions posed to Mingey; and (2) the City’s evidentiary objections to the Court’s ruling 

regarding Mingey’s testimony cannot satisfy the high burden of demonstrating that the Court’s 

decision “was based on an erroneous conclusion of law” or relied on a record that “contains no 

evidence on which the court rationally could have based its decision.” Young v. James Green 

Mgmt., 327 F.3d 616, 621 (7th Cir. 2003). Likewise, given the ample other evidence on the 

Monell theory at issue, from Spratte and many others, the City cannot show that the Court’s 

evidentiary ruling “affected the outcome of the case,” Hammel v. Eau Galle Cheese Factory, 407 

F.3d 852, 868 (7th Cir. 2005). 

 C. Filler Lineup Monell Theory 

1. Summary of the Factual Record Related to Filler Lineup Monell

Claim 

 When Rivera developed evidence that he had been in a first lineup in which Lopez 

selected a filler, but the existence of that lineup was not documented, the City agreed to produce 

a sample of homicide files for the five years surrounding the Valentin investigation so that the 

parties could determine whether police officers routinely failed to document filler identifications. 

The City and the Rivera stipulated that the files were reflective of its policies and practices 

citywide during the relevant timeframe. Ex. 5 at 963-964. 

 Of the files produced by the City, 138 involved either live or photo lineup procedures. 

Official lineup reports and ancillary police reports in those files reported a total of 386 different 

lineup procedures, and in many of these lineup procedures, multiple witnesses viewed multiple 

suspects, so that there were a total of 980 “possible identifications” (the number of witnesses 

viewing each lineup multiplied by number of suspects in each lineup) reflected in these files. Ex. 

5 at 966-67, 984-97, PX 150. The entirety of every file involving a lineup was reviewed, and 

each lineup report was coded, noting for each possible identification whether it was reported that 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 123 of 157 PageID #:40603
111 

the witness made a positive identification, a tentative positive identification, no identification, or 

a filler identification. Id.

 Of nearly one thousand possible lineup identifications, there was not a single example in 

the set of files where a police officer reported the identification of a filler. Id. at 967, 1002. The 

stipulated data thus show a total absence of filler identifications in the reports of the CPD. 

 Rivera retained the services of renowned eyewitness identification expert Dr. Gary Wells, 

who performed a statistical analysis of the data and compared the findings in the CPD’s files to 

those reported in existing field studies. Id. at 967, 984-90, 1002-03. Dr. Wells opined that the 

City’s rate of filler identifications was statistically impossible, and could only be explained by a 

policy of not documenting the selection of a filler. Id. at 967. 

 More specifically, Dr. Wells opined that published peer-reviewed field studies, based on 

a large sample size across multiple police departments demonstrate that suspects are selected 

approximately 41% of the time, no one is identified approximately 35% of the time, and fillers 

are identified approximately 24% of the time. Id. at 967, 998-1002. In the City of Chicago, 

however, the rate of filler identifications was zero. Id. at 966-67, 1002. Applying 

commonly-accepted statistical analysis, Dr. Wells testified that this could not be explained by 

chance, and further, that the only possible explanation was that the City had a practice of either 

not reporting lineups in which a filler was selected, or falsely reporting the lineups as “negative 

IDs” or “no IDs” (i.e., no one identified in the lineup). Id. at 967, 1095-1111. 

 From a police practices and criminal justice perspective (which he was well qualified to 

provide), Dr. Wells also explained the importance of accurately reporting when a filler was 

selected by a suspect, and the difference in kind between a filler identification and a no 

identification: in the case of a filler identification, the witness made an identification and got it 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 124 of 157 PageID #:40604
112 

wrong, meaning the witness’s credibility is all but shot and rendering unreliable any subsequent 

suspect identification. Id. at 979-83. Dr. Wells explained that the identification of a filler was 

therefore uniquely exculpatory. Id., see also id. at 3272-73, 3316-17 (Hickey). 

 Dr. Wells’ conclusions are consistent with the City’s policies and practices. Under the 

City’s policy, General Order 83-5, if a suspect was identified in the lineup (“positive” 

identification) documentation was required to identify the person selected, but if a filler was 

selected there was not a requirement to identify the person identified in the lineup. Ex. 4 at 920, 

Ex 13 at 3238-39, Ex. 14 at 3265-75; City Exhibit 11. In addition, multiple witnesses at trial 

admitted that the custom at the time of the Valentin investigation was to not document lineups in 

which a filler was selected, or to falsely document them as negative identifications. Ex. 3 at 

628-30 (Defendant McLaughlin), Ex. 5 at 1104-05 (Wells), Ex. 8 at 1773-75 (Defendant 

Gawrys), Ex. 13 at 3238-39, 3265-70 (City Designee Hickey), Ex. 15 at 3579-80 (Officer 

Boyle). Finally, Dr. Wells also presented specific examples of files in which the evidence 

showed that a witness had selected a filler, but the filler identification was not documented in the 

Chicago Police Department’s file. Ex. 5 at 1102-04. 

2. Filler Lineup Monell Theory Was Presented to the Jury 

Rivera presented his Monell theory that the City’s filler identification policies caused the 

systematic withholding of exculpatory information to the jury, and the jury had an opportunity to 

consider this theory and find for Rivera on this Monell theory. Respectfully, the Court got it 

wrong when it stated in its ruling on Defendants’ Rule 50(a) motions that the jury instructions 

did not cover this theory. Doc. 676 at 9-10. 

Throughout this case, from summary judgment through trial, Rivera has presented his 

Monell theory as a form of systematic withholding of exculpatory information. At summary 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 125 of 157 PageID #:40605
113 

judgment, Rivera presented the filler lineup theory as one about the suppression of evidence. 

Doc. 321 at 59. And at trial, Rivera presented testimony and argued that the failure to document 

filler identifications constituted the suppression of exculpatory information that was not only 

evidence of innocence (eyewitness did not pick criminal defendant), but also powerful 

impeachment evidence against the witness who viewed the lineup. Ex. 5 at 980-983; 1109-1111 

(Wells detailing why fillers are exculpatory) Ex. 13 at 3272-3274 (Hickey acknowledging filler 

IDs can be exculpatory), Ex. 17 at 4199. 

The jury instructions also allowed for the jury to find on this theory. The instructions 

stated that the jury could find for Rivera if it found that the City “had a policy of concealing 

material exculpatory and/or impeachment evidence.” Doc. 671. That is exactly what Rivera 

proved: that the City’s policy and practice of not documenting filler identifications as exactly 

that resulted in the systematic withholding of exculpatory and impeaching evidence. And finally, 

the City’s post-trial motions acknowledge that the filler lineup evidence was presented in support 

of a theory of systematic suppression of exculpatory information. Doc. 707 at 13. 

Put simply, Rivera’s filler lineup theory—presented throughout this case and at 

trial—was that when a filler was identified in a lineup, officers did not document that fact (either 

by not documenting the lineup at all, or by documenting it as a negative identification). This is a 

clear form of suppression, since it severely undermines the credibility of the witness, particularly 

relevant in a sole eyewitness case like this one where the eyewitness who (without any 

documentation being created) originally picked a filler went on to implicate Rivera in a 

subsequent lineup. The jury instruction comfortably covered this theory. And as discussed 

below, Rivera presented more than enough evidence for a jury to find for Rivera on this theory. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 126 of 157 PageID #:40606
114 

3. Filler Lineup Challenges Included in the City’s Rule 50(a) and Rule 

50(b) Motions 

(a) Forfeited Arguments 

The City argues that Rivera failed to prove an underlying constitutional violation, Doc. 

707, but that argument is forfeited as it was presented for the first time in the City’s Rule 50(b) 

motion. The argument also fails on the merits. As discussed above, Rivera presented ample 

evidence from which a jury could conclude that Lopez viewed a first lineup in which a filler was 

selected instead of Rivera, and that this initial filler identification by Lopez was suppressed. See 

supra at 20. There is thus clearly sufficient evidence of an underlying constitutional violation 

caused by the policy and practice at issue. 

In its Rule 50(a) motion, the City also challenges the reliability of the data Dr. Wells 

relied upon to reach his conclusions, arguing that he did not personally prepare the underlying 

data and so “could not vouch for its reliability” or “verify the accuracy of the spreadsheet.” Doc. 

629 at 5. But the City abandoned this argument in its Rule 50(b) motion, and as such it is 

forfeited. Doc. 707 at 12-14 (containing only a single sentence referring to summary judgment 

and motion in limine briefing and stating “his methodology did not satisfy the Daubert

standard”). On the merits, the argument also fails. Dr. Wells’ opinions are clearly admissible. He 

walked the jury through his impeccable credentials and his process in detail; and he was clear 

that he relied on data Rivera provided, but that he had taken steps to make sure he was 

comfortable with the data and its accuracy. Ex. 5 at 969-975; 984-994; 1234-1235. The City 

spent time attacking Dr. Wells’ opinions on the reliability grounds it raised in its Rule 50(a) 

motion, but the jury rejected the City’s position. For good reason—(1) after attacking Dr. Wells 

for relying on data Rivera extracted from underlying spreadsheets, the City’s expert Bernard 

Murray admitted that he too relied on data counsel provided and that to do so was perfectly 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 127 of 157 PageID #:40607
115 

appropriate, Ex. 16 at 3896-3899, and (2) despite having access to all of the same data, the City 

failed to present evidence of actual errors in the data Dr. Wells relied on, let alone numerous or 

systematic enough to explain a finding of zero filler identifications. Dr. Wells’ analysis was 

sound, and provided more than sufficient evidence to support the filler lineup theory at trial. 

(b) Express Policy 

The City incorrectly argues that Rivera has not pursued a theory that there was any 

failure in policy, Doc. 707 at 13, Doc. 708 at 12-13, but that is not the case. Rivera presented 

evidence that the policy itself was unconstitutional. The City’s own designee on policies, Hickey, 

testified that the policy was to not document that a filler was selected, and that this was the 

proper interpretation of the language of the Special Order. Ex. 14 at 3269-3270. In this way, 

Defendants are also liable under an express policy theory based on a gap in policy, see supra at 

93 since the City’s policy directed investigators to document positive identifications, but 

deliberately excluded filler identifications from those documentation requirements. 

Whichever way it is characterized, the express policy was unconstitutional, since it 

resulted in the systematic suppression of filler identifications of the sort that occurred in this 

case. Rivera’s expert Dr. Wells, as well as City designee Hickey, both testified that a witness’s 

selection of a filler is uniquely exculpatory because of its impact on the witness’s credibility. Ex. 

5 at 980-983; 1109-1111; Ex. 13 at 3272-3274. Accordingly, a jury finding that the City’s lineup 

policy was unconstitutional is well supported by the record 

(c) Widespread Practice 

The City would like the Court to consider Rivera’s filler lineup claim as a widespread 

practices theory, because under that framework, they argue, Rivera must show other instances of 

constitutional violations. As an initial matter, as discussed above the City misstates the law. See 

supra at 97. Under the proper standard, Rivera clearly demonstrated that policymakers choose a 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 128 of 157 PageID #:40608
116 

course of action among alternatives that presented an obvious risk of constitutional harm. Canton 

v. Harris, 489 U.S. 378, 388 (1989); Daniel v. Cook Cty., 833 F.3d 728, 735 (7th Cir. 2016). 

Nothing more is required. There can be no dispute that a widespread practice of universally 

suppressing every filler identification made by eyewitnesses presents an obvious risk of 

withholding exculpatory evidence. 

Even if Rivera had to present other instances of actual suppression, Rivera has presented 

substantial evidence that the violation in this case was a reflection of City policy rather than a 

“random event.” Dr. Wells testified about multiple instances in his review of files in which a 

filler identification was not documented as such. And in addition to those specific examples, Dr. 

Wells identified numerous additional instances in which the policy resulted in Brady violations. 

Indeed, he testified that rigorous field studies indicated that there should have been 

approximately 24% filler identifications out of 980 total identification procedures, or 

approximately 235documented filler identifications, as compared to zero in the Chicago data. 

These 235 cases are evidence of numerous additional Brady violations. Moreover, Dr. Wells 

testified that while some of the filler identifications were falsely documented as negative 

identifications, the comparison of Chicago data to field studies provided strong evidence that 

there were approximately 100 filler identifications that were not documented at all (as was true 

in this case). Ex. 5 at 1105-1108. That is, to bring Chicago’s figures in line with field studies 

around the country, there would have been about 100 additional instances in which fillers were 

identified but the lineup was not documented at all. Those approximately 100 instances in which 

a filler was selected but no lineup was documented are also evidence of Brady violations 

sufficient to support the jury’s verdict on a widespread practices theory. 

The City contends that this evidence was speculative, and that the opinion was not 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 129 of 157 PageID #:40609
117 

disclosed, but neither of these arguments has merit, in particular under the standards applicable at 

this stage. The City attacked Dr. Wells’ theory as speculative at trial, but the jury was entitled to 

reject that argument after considering Dr. Wells’ thorough review of hundreds of files and 

lineups, the fact that the City’s expert chose not to conduct his own review of the data, and Dr. 

Wells’ qualifications and expertise. He offered an opinion based on his analysis of hard data, and 

he is supremely qualified to perform that mathematical and statistical analysis. His conclusion 

about not only what was in the data, but what was missing from the data (100 undocumented 

lineups) was entirely credible. The argument that he had not disclosed his opinion is also not a 

valid grounds for granting Defendants’ post-trial motion, and in any event a non-starter. The 

entire gist of Dr. Wells’ disclosed opinion was that field studies show that fillers get picked 

almost 25% of the time, but in Chicago it was miraculously zero, meaning that the City had a 

policy of not documenting filler identifications. This took one of two forms: not documenting the 

lineup at all, or falsely documenting it as a lineup in which no one was selected 

(d) Causation 

Whether Rivera’s filler lineup Monell theory is evaluated as an express policy claim or a 

widespread practice claim, there is clear evidence that the policy or practice is causally linked to 

the misconduct in this case. The City’s argument to the contrary tries to cloud the picture, but in 

doing so ignores the straightforward and direct causal link. 

Put simply, Rivera has presented a Monell theory that when a witness picks a filler in a 

lineup, the erroneous selection of a verifiable nonparticipant is not documented. The 

misconduct Rivera presented in this case, which the jury had ample basis to accept, was that 

eyewitness Lopez picked a filler in a first lineup, and that his erroneous selection of an innocent 

nonparticipant was not documented. The link between the municipal custom and the conduct 

could not be more direct or clear. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 130 of 157 PageID #:40610
118 

Assessing it at a more granular level does not change the result. Dr. Wells opined that the 

policy and practice was that the identification of the filler was not documented, and that this took 

one of two forms: (1) not documenting the lineup at all, or (2) documenting it as a no 

identification. Ex. 5 at 1100-01, 1105-09, 1111. The evidence at this trial is that the same thing 

happened here, in the first form. 

The City contends that what takes this case outside custom is that here the Defendants did

create documentation, and that the documentation indicated that no lineup occurred. Doc. 707 at 

14. The argument is hard to follow, but it seems to be a claim that neither of the two forms above 

occurred, and so there is no causal link. But that is all wrong. First, even under the City’s 

characterization, they did exactly what Wells said the custom was: not document the lineup at 

all. Second, that the Defendants additionally created documentation expressly stating that a first 

lineup did not occur changes nothing; it simply furthers the purpose of erasing from history a 

lineup in which a filler was selected, consistent with the established policy and practice. In other 

words, this still falls squarely within the first form above. Ultimately, that the Defendants created 

a supplemental report falsely stating that they did not conduct a first lineup, when in fact they 

did, simply creates an additional claim for fabrication. That fabrication, however, does not render 

meaningless the parallel suppression of an exculpatory first lineup. The City’s causation 

argument must be rejected. 

4. Filler Lineup Challenges Included Only in the City’s Rule 59(a) 

Motion 

The City’s Rule 59(a) motion repeats most of the arguments contained in its Rule 50(a) 

and Rule 50(b) motions, and should be rejected for the same reasons set forth above. In addition, 

the City argues that the Court’s ruling permitting Dr. Wells to testify was in error, Doc. 708 at 

18-19, but this is also addressed above. The filler lineup theory was well supported by evidence 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 131 of 157 PageID #:40611
119 

at trial and was one of the claims on which the jury was instructed. The City’s further attacks on 

Dr. Wells’ data were reasonably rejected by the jury. See supra at 114. The City cannot satisfy 

the high burden of demonstrating that the Court’s decision “was based on an erroneous 

conclusion of law” or relied on a record that “contains no evidence on which the court rationally 

could have based its decision.” Young v. James Green, 327 F.3d 616, 621 (7th Cir. 2003). 

VI. THE CITY’S CHALLENGES TO JURY INSTRUCTIONS FAIL 

 The City makes four arguments relating to the Court’s instructions to the jury. Doc. 708 

at 20-27.37 If jury instructions are an accurate statement of the law, review of those instructions 

is limited. Knox v. Indiana, 93 F.3d at 1327, 1332 (7th Cir. 1996). If jury instructions were 

incorrect, the question is whether the jury was confused or misled. Gile v. United Airlines, 213 

F.3d 365, 374-75 (7th Cir. 2000). “Even if we believe that the jury was confused or misled, we 

would need to find that the defendants were prejudiced before ordering a new trial.” Jimenez, 

732 F.3d at 717. The City fails to show that a new trial is warranted. 

A. The Court Properly Exercised Its Discretion to Reject the City’s Additional 

Limiting Instruction Regarding “Speculative Evidence” 

 As was the case in Jimenez, “[t]he defendants do not argue that the due process 

instruction given by the district court was an incorrect statement of the law.” 732 F.3d at 717. 

Instead, they argue that instruction was too broad because the Court did not also give the City’s 

proposed limiting instruction. Id. Just as the Seventh Circuit rejected a similar argument in 

Jimenez, this Court should reject the City’s argument here. See id. at 717-18. 

 37 The individual Defendants mention two jury instructions in passing, but they do not develop 

any argument about either of them being erroneous. First, they mention that the Court rejected a limiting 

instruction on Rodriguez. Second, they mention that the Court rejected their erroneous additional 

definition of reasonable diligence. These statements do not warrant a response, and the Court’s prior 

rulings on both instructions were correct. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 132 of 157 PageID #:40612
120 

 The City contends the jury should have been instructed that “[s]peculation as to the 

existence of other documents is not sufficient to support a claim that an officer deliberately 

withheld exculpatory or impeachment evidence that is material.” Doc. 433-2 at 41 (Defendant’s 

Proposed Instruction No. 37). Before trial, the Court asked what purpose such an instruction 

would serve, and the City responded: 

The speculation about whether or not documents—I mean, it goes right to a lot of what 

plaintiff’s expert, Brasfield, talks about being—missing documents, when he doesn’t 

know that they are missing. 

So, we can’t bootstrap his conclusion that when he compares one file to another, a page 

isn’t there; therefore, it is missing and withheld, to, “It must have been—” 

Ex. 57 at 93:19-25. The Court observed that the instruction did not address any problem relating 

to Brasfield’s purported assumptions, id. at 94:1-2, and it refused the instruction, id. at 94:13-14. 

 Defendants now argue that the instruction was necessary to stop the jury from giving 

weight to what they call speculative evidence from Brasfield, Mingey, and missing GPRs. Rivera 

has already discussed why the evidence in each of these categories was not speculative at all, see 

supra at 82, 100 (Brasfield), 106 (Mingey/5th), and 30 (GPRs), and for those reasons the City’s 

proposed instruction was unnecessary and likely to confuse the jury. But in addition to that, it 

was not an error—let alone an abuse of discretion, let alone a prejudicial abuse—for the Court to 

refuse the instruction. First, the City does not contend that the due process instruction was 

incorrect. Nor could it. The instruction follows the Seventh Circuit pattern, see 7th Cir. Pattern 

7.14, and it is legally the same as the instruction approved by the Seventh Circuit in Jimenez, 732 

F.3d at 717 n.3. The jury was told that it had to find that Defendants knowingly concealed or 

fabricated evidence that was material, defined as evidence that would have a reasonable 

likelihood of affecting the outcome of the criminal case. Doc. 671 at 23. Not only is that 

statement of the law correct, see supra at 14, it also prevented the jury from engaging in exactly 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 133 of 157 PageID #:40613
121 

the type of speculation that the City is apparently concerned about. If there were any doubt, the 

Court also instructed the jury about what is and is not evidence, Doc. 671 at 4, 6; it instructed the 

jury that, while it could draw inferences, they had to be “reasonable and . . . based on the 

evidence in the case,” id. at 10; and it told the jury how to interpret circumstantial evidence. Id.

at 11.38 These instructions avoided concerns about speculation. 

 More generally, “a judge need not deliver instructions describing all valid legal 

principles. . . . Rather than describing each possible inference of the evidence, the judge may and 

usually should leave the subject of the interpretation of the evidence to the argument of counsel.” 

E.E.O.C. v. AutoZone, Inc., 809 F.3d 916, 923 (7th Cir. 2016) (citations omitted). There is 

nothing in the law that required the Court to give this instruction, and it was plainly not an abuse 

of discretion for the Court to refuse it. 

 The City also makes zero effort to establish that it was prejudiced by the refusal to give 

this instruction—its argument ends without any analysis of prejudice whatsoever. Doc. 708 at 21. 

In order to justify a new trial, the City must show that the instructional error, considered in light 

of “the instructions as a whole, along with all of the evidence and arguments,” caused the jury to 

be “misinformed about the applicable law.” United States v. White, 443 F.3d 582, 587-88 (7th 

Cir. 2006). The City comes nowhere near such a showing. 

B. The Court Properly Exercised Its Discretion to Reject the City’s Additional 

Instruction Regarding Invocation of the Fifth Amendment 

 The City regurgitates its argument that Mingey’s assertion of the Fifth was prejudicial in 

the guise of its argument that the Court should have given a limiting instruction on the Fifth 

Amendment. Doc. 708 at 21-23 (citing Doc. 433-2 at 12) (Defendants’ Proposed Instruction No. 

 38 Because the City’s proposed instruction is impossibly vague, there is at least a plausible 

reading of that instruction that puts it in direct tension with the instruction that the jury could draw 

inferences from circumstantial evidence. To that extent, the City’s instruction is a misstatement of the law 

that this Court definitely should not have given. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 134 of 157 PageID #:40614
122 

10). Rivera has discussed all of these arguments at length already, and he reiterates them here 

only briefly. The Court’s Fifth Amendment instruction let the jury know exactly who it could 

draw a negative inference against—Guevara and Mingey, see supra at 56, 63; to the extent that 

there was even room for the jury to draw an inference against another Defendant based on 

Guevara’s or Mingey’s assertion, that inference was legally permissible, see supra at 64; and the 

argument that Rivera had no foundation for his questions to Guevara and Mingey cannot 

withstand scrutiny when the extensive factual record is considered, see supra at 1-34, 106. 

 Moreover, as the Court recognized in rejecting the City’s proposed instruction, the City 

never proposed to instruct the jury on the legal factors governing whether an assertion of the 

Fifth can be imputed to another party; the issue was not raised at the motion in limine stage; 

nothing in the cases cited by the City required a limiting instruction; and the Court sustained 

objections that the Defendants made at trial to questions put to Guevara and Mingey that lacked 

foundation. Doc. 653 at 1-2. The City does not say anything to contradict the Court’s prior 

ruling. The jury was properly instructed on the Fifth Amendment, there was no legal error, the 

Court did not abuse its discretion, and, again, the City does not identify any prejudice.

C. The Jury Was Correctly Instructed on Municipal Liability 

 The City next argues in two paragraphs that the Court’s Monell instruction “essentially 

allowed the jury to find the City liable on a respondeat superior theory[.]” Doc. 708 at 23-24 

(citing Doc. 433-2 at 37) (Defendants’ Proposed Instruction No. 34). The City does not actually 

explain how it thinks the Court’s instruction permitted such a result, how the instruction given 

was legally erroneous, how the instruction given deviates in any legally material way from the 

instruction proposed by the City, or how the City was prejudiced as a result of the instruction. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 135 of 157 PageID #:40615
123 

Such a bare-bones argument in a post-trial motion is insufficient, and this Court should deem the 

point forfeited for that reason. Dunkel, 927 F.2d at 956; Kelso, 398 F.3d at 643. 

 Independently, the City failed to assert the objection it now makes before the jury was 

instructed, and so the argument is forfeited for that reason as well: 

Rule 51 provides . . . that any party wishing to contest a jury instruction must distinctly 

state the matter objected to and the ground of the objection. The objection must be 

specific enough that the nature of the error is brought into focus. . . . The party must also 

explain what is wrong with the proposed instruction; it is not enough simply to submit an 

alternative instruction. . . . There are no formal requirements, but pragmatically speaking 

the district court must be made aware of the error prior to instructing the jury, so that the 

judge can fix the problem before the case goes to the jury. 

Schobert v. Illinois Dep’t of Transp., 304 F.3d 725, 729-30 (7th Cir. 2002). 

 Here, both sides proposed Monell instructions. See 433-1 at 37-38 (Plaintiff’s Proposed 

Instruction No. 34); Doc. 433-2 at 37 (Defendants’ Proposed Instruction No. 34). At the pretrial 

conference, the Court discussed them at length, forging an agreement between the parties on 

acceptable language. See Ex. 57 at 74-85. At the conclusion of that discussion, both sides had 

agreed to Plaintiff’s proposed instruction, with the following caveats: (1) the City did not agree 

that the evidence was going to support the instruction; (2) the City did not agree about what 

types of constitutional theories (suppression and/or fabrication) should be listed immediately 

following the numeral 2 in the instruction; and (3) the City did not agree to the language 

encompassed in element 2(c) of the instruction. Id. At the end of trial, Plaintiff submitted that the 

constitutional theories following the numeral 2 should be limited to a policy of concealing 

material exculpatory or impeachment evidence. 652 at 1. The Court noted in its ruling that the 

parties were at issue on that second element, and it adopted the instruction with the revision 

proposed by Plaintiff. Doc. 653 at 4. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 136 of 157 PageID #:40616
124 

 At the instruction conference, the Court and parties reviewed the Court’s ruling, and the 

City stated it was reserving “whatever objections we had before.” Ex. 16 at 4106-09. The City 

raised arguments about why particular Monell theories were not supported by the evidence, but it 

otherwise made no objection that the instruction misstated the law—at any point. Ex. 16 at 

4106-4111. It certainly did not contend the instruction allowed a finding of municipal liability on 

a respondeat superior theory. Accordingly, the City did not preserve the argument it now makes 

because it failed to raise the issue before the jury was instructed. Schobert, 304 F.3d at 729-30. 

 To the extent the City’s argument is entertained, the Court’s instruction is absolutely a 

correct statement of the law. The Court need look no further that the Seventh Circuit’s decision 

in Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372, 378-80 (7th Cir. 2017), to see that its 

instructions to the jury on municipal liability theories were correct. The City has not 

demonstrated any legal error, and it again has not explained how it has been prejudiced. 

D. The City’s Sufficiency Arguments Repeated As Jury Instruction Arguments 

Should Be Rejected for the Reasons Discussed Already 

 At the end of its motion, the City contends that certain Monell instructions should not 

have been given because they were not supported by the evidence. Doc. 708 at 24-27. These 

arguments are indistinguishable from the City’s argument that the evidence was insufficient to 

support various theories of Monell liability, which Rivera has addressed above. For all of the 

reasons discussed, the jury was properly instructed on all Monell theories, and the City’s 

argument should be rejected. 

VII. ARGUMENTS ABOUT COUNSEL’S PURPORTED “MISCONDUCT” FAIL

It is one thing to respectfully disagree that a given line of questioning or inquiry is 

objectionable, but quite another to claim that an opponent engaged in intentional “attorney 

misconduct” and displayed a “complete and callous disregard for this Court’s authority [and] a 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 137 of 157 PageID #:40617
125 

contempt for the integrity of the judicial process.” Doc. 713 at 30-33. This accusation is 

completely inappropriate, inaccurate, and unfair. This Court observed the proceedings for more 

than three weeks, and Rivera’s lawyers are confident that the Court was satisfied that the case 

was tried professionally and ethically by all sides. 

The real reason that Defendants are stretching to try to identify “attorney misconduct” is 

because they need a hook for a new trial. They cannot get relief through the front door because 

they never objected to most of what they presently complain about, forfeiting or waiving their 

current position. Pickett v. Sheridan Health Care, 610 F.3d 434, 445 (7th Cir. 2010); Moore v. 

Tuelja, 546 F.3d 423, 430 (7th Cir. 2008) (noting plain error review is “rarely applied in civil 

cases” and only in “exceptional circumstances” where “substantial rights are affected” and a 

“miscarriage of justice” might occur). Had Defendants preserved objections, they would not now 

be trying to squeeze their arguments into the Rule 60 “misconduct” rubric. Defendants did not 

object to most of what they now call “misconduct” because, in the context of the trial, they did 

not see a basis to object. Having lost, they are now scrutinizing transcripts to manufacture issues. 

 But waiver rules apply here, too. Arguments in a Rule 60(b)(3) motion must have been 

preserved at trial, Venson v. Altamirano, 749 F.3d 641, 653-54 (7th Cir. 2014), so Defendants’ 

unpreserved arguments raised in this section are forfeited. Even if they were not, Rule 60(b)(3) is 

an extraordinary remedy, granted only in exceptional circumstances, and entrusted to this Court’s 

discretion. Wickens v. Shell Oil Co., 620 F.3d 747, 758-59 (7th Cir. 2010). 

 Defendants must show by clear and convincing evidence that they were barred from fully 

and fairly presenting their claim because of Rivera’s fraud, misrepresentation, or misconduct. Id.; 

see also Williams v. U.S. DEA, 51 F.3d 732, 736 (7th Cir. 1995) (Rule 60(b)(3) not a mechanism 

to re-litigate merits of case). “[I]mproper comments during closing argument rarely rise to the 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 138 of 157 PageID #:40618
126 

level of reversible error.” Miksis v. Howard, 106 F.3d 754, 764 (7th Cir. 1997). And in 

determining whether “there is a reasonable probability that the verdict of a jury has been 

influenced” by improper conduct of a magnitude that justifies setting aside a judgment, a court 

“must examine, on a case-by-case basis, the totality of the circumstances, including the nature of 

the comments, their frequency, their possible relevancy to the real issues before the jury, the 

manner in which the parties and the court treated the comments, the strength of the case (e.g., 

whether it is a close case), and the verdict itself.” DeRance, Inc. v. PaineWebber Inc., 872 F.2d 

1312, 1326-27 (7th Cir. 1989). Applied here, all of these factors support Rivera. 

A. Questioning and Argument About ASA Rosner’s Hair 

Again, Lopez testified that he told a person matching Guevara’s description and a female 

that Rivera was the wrong guy. The female had either white or yellow hair. Ex. 7 at 1655-56, 

1668-69; Ex. 21 at 95:1-22. At trial, Rivera argued, and Defendants denied, that McLaughlin was 

the likely possibility. However, ASA Julie Rosner testified that she also had interacted with 

Lopez on September 15, Ex. 11 at 2662-63, and the jury could observe from the witness stand 

that she had light-colored hair. Rather than leave the subject unaddressed and permit the jury to 

speculate, Rivera’s counsel elicited from Rosner that she did not have light-colored hair back in 

1988, and that in fact the first time she ever had light hair was when she dyed it shortly before 

her civil trial. Ex. 11 at 2637-38. Rivera also elicited from Rosner that, at the time she had dyed 

her hair, she was aware that the woman who received Lopez’s information had light-colored hair, 

and that this was an issue being discussed in this litigation. Ex. 11 at 2682-83. 

Rivera’s counsel did not accuse anyone of anything. Instead, he merely elicited facts 

about Rosner’s hair color, without objection. During closing, when Rivera’s counsel reviewed 

the facts, defense counsel interrupted and made a speaking objection, saying that “[n]obody tried 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 139 of 157 PageID #:40619
127 

to say she [Rosner] was anybody that [Lopez] recanted to. Nobody’s ever made that suggestion.” 

Ex. 17 at 4212. But it was not for Defendants to decide whether Rivera should have to take the 

risk that the jury might draw the inference that Rosner was the person Lopez talked to—Rivera 

was perfectly entitled to rule that theory out by establishing the facts in Rosner’s direct 

examination and by arguing in closing that she could not have been the person because her hair 

had not been light back then. 

The specific portion of transcript cited by Defendants in support of their “misconduct” 

contention is Rivera’s counsel’s rebuttal, during which he stated, “Mr. Sotos said that he didn’t 

tell Ms. Rosner to dye her hair. And let’s be clear. Mr. Sotos is—has integrity. Nobody is saying 

he told her to do that. I absolutely take his word. All I’m saying is the state’s attorneys seem to 

be aligned against Jacques. They seem to align themselves with the police.” Ex. 17 at 

4350:19-24. This argument was not improper at all. The reason that Rivera’s counsel said this 

was that in their closing argument, Defendants themselves said that they had not told Rosner to 

dye her hair and that any suggestion otherwise was not true. Ex. 17 at 4256. Rivera’s rebuttal 

was simply responding to that argument. Moreover, Defendants did not object, and so the issue is 

forfeited. Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008). This was not misconduct. 

B. Discussion of the Defense Case During Closing 

Defendants next take issue with Rivera’s argument during closing that Defendants’ 

witnesses were either hired guns or more helpful to Rivera than they had been to Defendants, and 

“that perhaps [the Defendants] wanted to put distance between what you heard and this day of 

reckoning. They wanted you to hopefully forget Jacques Rivera [who testified weeks earlier] and 

how powerful he was.” Ex. 17 at 4204. There was no objection to this argument; nor should there 

have been. Rivera’s counsel spoke the truth. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 140 of 157 PageID #:40620
128 

The argument actually continued for several more pages of transcript, wherein Rivera’s 

counsel proceeded to explain why Defendants’ case was worse than pointless, explaining that the 

defense had called: (1) Northwestern investigator Cynthia Estes by deposition, who further 

corroborated Rivera’s version of the Lopez statement that he was the wrong guy; (2) Pastor 

Thomas Bryant by deposition, who confirmed that long before the Northwestern investigators 

arrived at Lopez’s door, Lopez told him during counselling sessions that he had been 

manipulated by the police when he was a boy; (3) John Boyle, who participated only in the 

September 15 lineup, had no memory of the events, added nothing helpful to the Defendants, and 

contradicted the Defendants’ testimony on a number of points; and (4) Wixted, who confirmed, 

among other things, Plaintiff’s theories that children can be steered by investigators without their 

even being aware of it, and that unfavorable testimony given by Lopez at the criminal trial had 

the hallmarks of false memories. Ex. 17 at 4204-08. 

Upon hearing Defendants’ case, loaded up as it was with witnesses who added nothing 

helpful to the Defendants and long deposition transcripts that should have been stipulations, the 

argument that the Defendants were doing nothing but stalling was hardly unreasonable. At one 

point, outside the presence of the jury, the Court remarked: “So why when you’re trying to get 

this case to the jury before the 4th of July do we hear from a witness that has no recollection of 

anything? I mean, tell me what that is about? I know Mr. Loevy made some points, but I don’t 

even know I heard from the witness in the first place. What was he supposed to establish?” Ex. 

15 at 3593:14-20. When Defendants responded, the Court expressed dissatisfaction with their 

answer, saying, “Did he establish that for you? Because I just heard him say, ‘I don’t remember,’ 

‘I don’t remember.’” Ex. 15 at 3594:6-7. The Court concluded, “I would have liked to think we 

should’ve done that in 5 minutes.” Ex. 15 at 3594: 21-22. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 141 of 157 PageID #:40621
129 

In sum, Plaintiff’s counsel’s argument was reasonable, which is presumably why there 

was no contemporaneous objection to this argument during closing, forfeiting the argument. 

Venson, 749 F.3d at 653-54. The reference to Defendants’ case in closings was not misconduct. 

C. Defense Counsel’s Preamble Before Questioning Lopez 

The centerpiece of Defendants’ case was their counsel’s examination of Lopez at the very 

end of his deposition testimony, during which essentially the only thing Lopez said was the word 

“correct” dozens of times in response to a string of leading questions that told Defendants’ story. 

Ex. 17 at 4362; Ex. 21 at 169-182. To put Lopez’s testimony in context, Rivera pointed out that 

immediately prior to this line of questioning from Defendants, their counsel, Mr. Given, had 

said: “I have a few questions for you. Some of them may sound like questions you’ve been asked 

earlier, and I apologize, but I tried to pare them down so we will not be here any longer than I 

hope we need to be. Okay?” Ex. 17 at 4364 (emphasis added) ; Ex. 21 at 169:3-14. 

All Rivera’s counsel did during closing was point out that the Lopez testimony on which 

Defendants relied so heavily was given in response to leading questions, after the witness had 

been instructed that the questioning session would finally come to an end if things went 

smoothly. For a witness whose alleged manipulation was at the center of the case, it was 

certainly worth taking into consideration that he seemed willing to say whatever the particular 

person questioning him wanted to hear, even at the risk of contradicting earlier testimony, if it 

meant getting out of the room faster. That was an argument about the evidence in the record, and 

it was not improper, much less misconduct. Moreover, the jury in all of these instances was 

instructed that the comments of attorneys are not evidence, Doc. 671 at 6, and the court at this 

stage presumes that the jury followed that instruction, Soltys, 520 F.3d at 744.39 

 39 The only objection Defendants made to this argument was itself improper. Defense counsel 

interrupted and stated, “Objection, you Honor. They told him to get out of here? What it that?” Ex. 17 at 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 142 of 157 PageID #:40622
130 

D. Cross-Examination of Jeffrey Noble 

In order to give the impression that he harbored no bias in favor of the City, Defendants’ 

police practices expert Jeffrey Noble told the jury that he worked for plaintiff’s in civil rights 

cases routinely, including in extremely high-profile police misconduct cases, such as Tamir Rice 

(the 12-year-old boy shot by Cleveland police while carrying a BB-gun), and Philando Casitile 

(the Minnesota man who was pulled from his car and shot by the police). Ex. 14 at 3435-36. 

Both are well-known cases, which have received national media attention, with highly 

sympathetic plaintiffs. Without impeaching that testimony, the jury would have been left with 

the incorrect impression that Noble was a sympathetic expert who considered both sides of this 

case and came to an even-handed conclusion. 

To counter the sympathetic impression Noble had created, Rivera’s counsel sought to 

establish that Noble worked on unsympathetic cases too, many for the City of Chicago. Rivera 

explored the fact that Noble was a “frequent flier” with the City, for which he had testified in 

more than 20 cases, earning a total of more than $400,000. Ex. 14 at 3437. In addition, he 

demonstrated that Noble had never reached an opinion adverse to the City, regardless of the facts 

of the case. Ex. 14 at 3463. Moreover, he established that Noble was conflicted out of reaching 

an opinion adverse to the City. Ex. 14 at 3464. Such bias is relevant, particularly for an expert 

who has provided extensive and uniformly positive opinions for the City in every different type 

of case. United States v. Abel, 469 U.S. 45, 52, 1 (1984) (“Proof of bias is almost always relevant 

because the jury, as finder of fact and weigher of credibility, has historically been entitled to 

assess all evidence which might bear on the accuracy and truth of a witness’ testimony.”). 

 

4363. In fact, Rivera’s counsel had not actually said those words at all. Id. But, to clear up an ambiguity, 

Rivera’s counsel proceeded to read verbatim Mr. Given’s exact words set out above. Ex. 17 at 4363. Once 

he did so, there were no further objections, and properly so. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 143 of 157 PageID #:40623
131 

 Nor did Rivera’s counsel commit any misconduct. Defendants complain that Rivera 

brought up the LaPorta case and described it as involving the City’s policies regarding an 

“off-duty police shooting.” Ex. 14 at 3460. That is hardly the “inflammatory” reference that 

Defendants’ motion describes it as. Plaintiff’s counsel next asked about Noble’s approval of the 

City’s policies in the Manzarra case, which he described as an examination of “administrative 

investigations.” Ex. 14 at 3460-61. In response to an objection, the Court provided guidance: 

“we’re not going into the substance of the cases and that question did not. Overruled.” Ex. at 14 

at 3461. Hearing that guidance, Plaintiff’s counsel reasonably understood he was permitted to 

ask Noble about a “description” of the cases he had worked on for the City, without getting into 

the “substance” of each case. When Plaintiff asked about his approval of the City’s policies in 

the Giles case which “involved police shootings,” the Court overruled the objection. Ex. 14 at 

3462. Rivera’ counsel asked another question after that, at which point the Court sustained an 

objection, and he started on a different line of questioning. Ex. 14 at 3462-63. If a given question 

was improperly argumentative, and if Defendants objected, the Court promptly fixed the problem 

by sustaining. There can be no error where the jury was told to disregard attorney questions to 

which objections were sustained. Sanchez, 700 F.3d at 932-33. 

The trial transcript exceeds 4,000 pages, and this passage is the only place Defendants 

identify where Rivera’s counsel misunderstood the court’s rulings. In fairness, these were not in 

limine orders that Rivera’s counsel could become familiar with. On the contrary, in light of 

contemporaneous objections, the Court had to try to set the ground rules for questioning on the 

fly, in front of the jury, and Rivera’s counsel thought he was permitted to go into the 

“description” of the case—e.g., bar beating or police shooting—but not the “substance” of the 

case. With the benefit of hindsight and review of the transcript, Rivera’s counsel believes he 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 144 of 157 PageID #:40624
132 

misunderstood what the Court was ordering, and he apologizes. But given the professional 

manner in which the case was tried, coupled with the fact that this was the only time during a 

very lengthy trial that Rivera’s counsel had any such misunderstanding about the Court’s rulings, 

Rivera urges the Court to give him the benefit of the doubt. The harsh accusation of “intentional 

misconduct” is inaccurate and unfair. 

* * * 

In sum, there is no cause for relief on the grounds of attorney misconduct. The cases 

relied upon by the Defendants in support of a new trial dealt with entirely different types of trial 

practices, namely, blatant intentional misconduct. Ty Inc. v. Softbelly’s Inc., 353 F.3d 528, 

536-37 (7th Cir. 2003) (“[W]itness tampering is extremely serious misconduct”); Walden v. City 

of Chicago, 846 F. Supp. 2d 963, 976–80 (N.D. Ill. 2012) (holding that the City’s lawyers 

repeatedly crossed “the bright line between aggressive advocacy and ‘win-at-all costs’ unethical 

conduct,” and that the City’s lawyers’ “improper conduct tainted the trial from opening 

statements through closing arguments, and the Court is not confident that the sustained 

objections, admonishing of counsel, and jury instructions sufficiently minimized the harm[.]”); 

Whiting v. Westray, 294 F.3d 943, 943–44 (7th Cir. 2002) (declining to reverse jury verdict 

despite genuinely inappropriate conduct). Defendants’ misconduct argument should be rejected. 

VIII. DEFENDANTS’ “CUMULATIVE ERROR” POSITION FAILS

Unable to identify any error remotely sufficient to justify a new trial, Defendants instead 

urge the Court to add up their arguments, the sheer volume of which they say requires a new 

trial. Doc. 713 at 33. To prevail on a cumulative error argument, Defendants must show “(1) that 

multiple errors occurred at trial; and (2) those errors, in the context of the entire trial were so 

severe as to have rendered [their] trial fundamentally unfair.” Christmas, 682 F.3d at 643. 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 145 of 157 PageID #:40625
133 

Defendants cannot show either. None of Defendants’ issues has merit, and Defendants must not 

be rewarded for creating an illusion that the record is supposedly loaded with dubious rulings, an 

impression that is really nothing but a function of the generous page limit on post-trial briefs. 

U.S. v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (“Only rarely will multiple insignificant errors 

result in sufficient prejudice to justify reversal; we take particular care not to magnify the 

significance of errors which had little importance in the trial merely because more than one such 

error occurred.”). Defendants’ cumulative error argument should be rejected. 

CONCLUSION

Defendants are understandably unhappy with the jury’s decision, but their attempt to 

place the blame on supposedly erroneous rulings by this Court or purported attorney misconduct 

is unpersuasive. The evidence against Defendants was strong. They have fallen well short of 

justifying another trial, and their motion should be denied in all respects. 

 RESPECTFULLY SUBMITTED, 

 JACQUES RIVERA 

 By: /s/ Jon Loevy 

 Jon Loevy 

 One of Plaintiff’s Attorneys

Arthur Loevy Locke E. Bowman 

Jon Loevy David Shapiro 

Anand Swaminathan Alexa Van Brunt 

Steven Art RODERICK MACARTHUR JUSTICE CENTER 

Rachel Brady Northwestern University School of Law 

Sean Starr 375 E. Chicago Avenue 

LOEVY & LOEVY Chicago, Illinois 60611 

311 N. Aberdeen St., Third Floor (312) 503-0844 

Chicago, IL 60607 

(312) 243-5900 

jon@loevy.com 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 146 of 157 PageID #:40626
App-1 

APPENDIX A—EXHIBIT LIST TO PLAINTIFF’S RESPONSE 

Response 

Exhibit Description 

1 June 5, 2018 Transcript of Proceedings 

2 June 6, 2018 Transcript of Proceedings 

3 June 7, 2018 Transcript of Proceedings 

4 June 8, 2018 Transcript of Proceedings 

5 June 11, 2018 Transcript of Proceedings 

6 June 12, 2018 Transcript of Proceedings 

7 June 13, 2018 Transcript of Proceedings 

8 June 14, 2018 Transcript of Proceedings 

9 June 15, 2018 Transcript of Proceedings 

10 June 18, 2018 Transcript of Proceedings 

11 June 19, 2018 Transcript of Proceedings 

12 June 20, 2018 Transcript of Proceedings 

13 June 21, 2018 Transcript of Proceedings 

14 June 22, 2018 Transcript of Proceedings 

15 June 25, 2018 Transcript of Proceedings 

16 June 26, 2018 Transcript of Proceedings 

17 June 27, 2018 Transcript of Proceedings 

18 June 28, 2018 Transcript of Proceedings 

19 June 29, 2018 Transcript of Proceedings 

20 

Designated Deposition Testimony of Dr. Arthur Sharkey 

(Video played during 6/13/18 and 6/14/18 proceedings, see Ex. 7 at 1680, Ex. 8 at 

1687) Designated Testimony Is Highlighted

21 

Designated Deposition Testimony of Orlando Lopez 

(Video played during 6/18/18 and 6/19/18 proceedings, see Ex. 10 at 2449, Ex. 11 at 

2463) Designated Testimony Is Marked by Blue and Red Boxes

22 PX1A – 9/16/88 Report 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 147 of 157 PageID #:40627
App-2 

23 PX3 – 9/15/88 Arrest Report 

24 PX4 – Rivera Rap Sheet Issued on Inquiry 8/27/88 

25 PX5 – Guevara 8/30/88 Arrest Report for Jacques Rivera 

26 PX6 – 8/30/88 Hold Report for Jacques Rivera 

27 PX7 – 8/31/88 Release from Custody Report for Jacques Rivera 

28 PX8 – Letrich 8/30/88 Arrest Report for Jose Rodriguez 

29 PX9 – 8/31/88 Hold Report for Jose Rodriguez 

30 PX10 – 8/31/88 Release from Custody Report for Jose Rodriguez 

31 PX11 – General Offense Case Report with Fax Stamp 

32 PX12 – 8/??/88 General Progress Report 

33 PX14 – 8/31/88 General Progress Report 

34 PX16 – 8/27/88 General Progress Report 

35 PX19 – Valentin Investigative Street File 

36 PX19A – Investigative File Inventory 

37 PX19B - 8/31/88 Supplementary Report Regarding Valentin Identification of 

Rodriguez 

38 PX19C - General Offense Report Missing Lopez Name and Other Information 

39 PX19F – 9/1/88 Report, First Lineup 

40 PX19G - 9/15/88 Line-Up Report 

41 PX19I - Felony 101 Minute Sheet 

42 PX31A - Felix Valentin Medical Records Discussed by Dr. Sharkey 

43 PX33 - Photo of Reynaldo Guevara 

44 PX35 – 1990 Criminal Trial Transcript 

45 PX39 – Wadas Motion for Discovery 

46 PX40 – State’s Answer to Discovery 

47 PX43 - Judge Kenneth Wadas’s Criminal Defense File for Jacques Rivera’s Case 

48 PX43A - Police Records in Judge Kenneth Wadas’s Criminal Defense File 

49 PX58B – Photos of Second Lineup 

50 PX62 – Photos of First Lineup 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 148 of 157 PageID #:40628
App-3 

51 PX66 – Jacques Rivera Photograph 

52 PX150 - Dr. Wells Chart of Filler Identification Analysis 

53 PX154I - Felony 101 Minute Sheet with Gang Crimes North Phone Number 

54 PX260 - Linzer Note On Conversation with Orlando Lopez—”I was coached” 

55 PX268 - Key Documents That Are In Valentin Investigative Street File But Not In 

Judge Wadas’s Criminal Defense File 

56 

PX269 - Documents That Are In Valentin Investigative Street File But Not In Judge 

Wadas’s Criminal Defense File 

57 May 24, 2018 Transcript of Pretrial Conference 

58 DX3 – Permanent Retention File 

59 DX103 – Cynthia Estes’ Report of Lopez Interview 

60 DX115 – Affidavit Signed by Orlando Lopez 

61 Deposition of Steve Gawrys (Excerpts) 

62 Expert Report of John Wixted 

63 Deposition of John Wixted (Excerpts) 

64 Expert Report of John Wasilewski 

65 PX145A – James Kluppelberg Investigative File Handwritten Notes 

66 PX146A-C – Nathson Fields Investigative File Documents 

67 PX154 – Samuel Robinson Investigative File Handwritten Note 

68 PX154J - Lineup Report (negative ID) from Demetrius Johnson case 

69 PX154K – Curtis Kirkland Investigative File Document 

69 PX154N – David Quinones Investigative File Document 

70 PX154Q – Miguel Borrotto Investigative File Document 

71 PX154J - Lineup Report (negative ID) from Demetrius Johnson case 

72 PX177 – Daily Activity Summary Report 

73 Deposition of Edward Mingey (Excerpts) 

 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 149 of 157 PageID #:40629
App-4 

APPENDIX B—TABLE OF CONTENTS TO TRANSCRIPT 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

Loevy Opening 2 6-6-2018 54-92 

Polick Opening 2 6-6-2018 95-109 

Leinenweber Opening 2 6-6-2018 109-114 

Rosen Opening 2 6-6-2018 114-129 

Craig Letrich Direct by Loevy 2 6-6-2018 130-165 

Craig Letrich Cross by Polick 2 6-6-2018 176-180 

Craig Letrich Re-Direct by Loevy 2 6-6-2018 180-184 

Craig Letrich Re-Cross by Polick 2 6-6-2018 184-185 

Jacques Rivera Direct by Loevy 2 6-6-2018 186-321 

Jacques Rivera Direct by Loevy 3 6-7-2018 343-373 

Jacques Rivera Cross by Sotos 3 6-7-2018 388-453 

Jacques Rivera Cross by Sotos 3 6-7-2018 474-484 

Jacques Rivera Cross by Leinenweber 3 6-7-2018 485-489 

Jacques Rivera Re-Direct by Loevy 3 6-7-2018 490-509 

Jacques Rivera Re-Cross by Sotos 3 6-7-2018 509-523 

Jacques Rivera Re-Cross by Leinenweber 3 6-7-2018 524-525 

Jacques Rivera Re-Cross by Rosen 3 6-7-2018 525-526 

Jacques Rivera Re-Direct by Loevy 3 6-7-2018 526-530 

Jacques Rivera Re-Cross by Sotos 3 6-7-2018 530-534 

Jacques Rivera Re-Direct by Loevy 3 6-7-2018 534-535 

Jacques Rivera Re-Cross by Sotos 3 6-7-2018 535-536 

Jacques Rivera Re-Direct by Loevy 3 6-7-2018 536-538 

Jacques Rivera Re-Cross by Sotos 3 6-7-2018 538-540 

Gillian McLaughlin Direct by Loevy 3 6-7-2018 541-644 

Gillian McLaughlin Direct by Loevy 4 6-8-2018 663-775 

Gillian McLaughlin Cross by Polick 4 6-8-2018 775-796 

Gillian McLaughlin Cross by Polick 4 6-8-2018 813-871 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 150 of 157 PageID #:40630
App-5 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

Gillian McLaughlin Cross by Rosen 4 6-8-2018 872-914 

Gillian McLaughlin Cross by Leinenweber 4 6-8-2018 914-917 

Gillian McLaughlin Re-Direct by Loevy 4 6-8-2018 917-950 

Gillian McLaughlin Re-Cross by Polick 5 6-11-2018 958-961 

Gillian McLaughlin Re-Cross by Leinenweber 5 6-11-2018 961-962 

Gillian McLaughlin Re-Direct by Loevy 5 6-11-2018 962-963 

Gary Wells Direct by Art 5 6-11-2018 964-1006 

Carlos Olivero Direct by Swaminathan 5 6-11-2018 1010-1021 

Carlos Olivero Cross by Sotos 5 6-11-2018 1021-1046 

Carlos Olivero Re-Direct by Swaminathan 5 6-11-2018 1046-1053 

Carlos Olivero Re-Cross by Sotos 5 6-11-2018 1053-1055 

Carlos Olivero Re-Direct by Swaminathan 5 6-11-2018 1055 

Angel Villafane Direct by Swaminathan 5 6-11-2018 1056-1062 

Angel Villafane Cross by Sotos 5 6-11-2018 1062-1078 

Angel Villafane Re-Direct by Swaminathan 5 6-11-2018 1078-1080 

Gary Wells Direct by Art 5 6-11-2018 1095-1111 

Gary Wells Cross by Rosen 5 6-11-2018 1111-1154 

Gary Wells Cross by Rosen 5 6-11-2018 1158-1181 

Gary Wells Cross by Rosen 6 6-12-2018 1195-1214 

Gary Wells Cross by Given 6 6-12-2018 1214-1217 

Gary Wells Re-Direct by Art 6 6-12-2018 1218-1231 

Gary Wells Re-Cross by Rosen 6 6-12-2018 1231-1235 

Gary Wells Re-Direct by Art 6 6-12-2018 1235-1236 

Gary Wells Re-Cross by Rosen 6 6-12-2018 1236 

David Osorio Direct by Swaminathan 6 6-12-2018 1237-1253 

David Osorio Cross by Leinenweber 6 6-12-2018 1253-1261 

David Osorio Re-Direct by Swaminathan 6 6-12-2018 1261-1262 

Reynaldo Guevara Direct by Loevy 6 6-12-2018 1265-1342 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 151 of 157 PageID #:40631
App-6 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

Kenneth Wadas Direct by Bowman 6 6-12-2018 1362-1418 

Kenneth Wadas Cross by Sotos 6 6-12-2018 1418-1448 

Kenneth Wadas Cross by Sotos 7 6-13-2018 1453-1546 

Kenneth Wadas Voir Dire by Sotos 7 6-13-2018 1569-1572 

Kenneth Wadas Cross by Rosen 7 6-13-2018 1574-1589 

Kenneth Wadas Cross by Leinenweber 7 6-13-2018 1589-1590 

Kenneth Wadas Re-Direct by Bowman 7 6-13-2018 1591-1616 

Kenneth Wadas Re-Cross by Rosen 7 6-13-2018 1616-1619 

Kenneth Wadas Re-Cross by Sotos 7 6-13-2018 1620-1627 

Kenneth Wadas Re-Direct by Bowman 7 6-13-2018 1628-1629 

Kenneth Wadas Re-Cross by Sotos 7 6-13-2018 1629-1630 

Orlando Lopez Reading of Designated PC 

Hearing Testimony 7 6-13-2018 1642-1680 

Arthur Sharkey Playing of Designated Video 

Deposition (not transcribed) 7 6-13-2018 1680 

Arthur Sharkey Playing of Designated Video 

Deposition (not transcribed) 8 6-14-2018 1687 

Steve Gawrys Direct by Loevy 8 6-14-2018 1692-1859 

Steve Gawrys Cross by Given 8 6-14-2018 1860-1892 

Jennifer Linzer Direct by Bowman 8 6-14-2018 1893-1917 

Jennifer Linzer Cross by Leinenweber 8 6-14-2018 1917-1951 

Jennifer Linzer Cross by Leinenweber 9 6-15-2018 1961-1972 

Jennifer Linzer Cross by Sotos 9 6-15-2018 1972-1980 

Jennifer Linzer Cross by Barber 9 6-15-2018 1980-1984 

Jennifer Linzer Re-Direct by Bowman 9 6-15-2018 1984-1989 

Jennifer Linzer Re-Cross by Leinenweber 9 6-15-2018 1989-1991 

Jennifer Linzer Re-Cross by Sotos 9 6-15-2018 1991-1996 

Steve Gawrys Cross by Given 9 6-15-2018 1996-2062 

Steve Gawrys Re-Direct by Loevy 9 6-15-2018 2062-2105 

Steve Gawrys Re-Direct by Loevy 9 6-15-2018 2122-2136 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 152 of 157 PageID #:40632
App-7 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

Steve Gawrys Re-Cross by Given 9 6-15-2018 2136-2140 

Steve Gawrys Re-Direct by Loevy 9 6-15-2018 2140-2141 

Jennifer Rivera Direct by Bowman 9 6-15-2018 2145-2156 

Jennifer Rivera Cross by Golden 9 6-15-2018 2157-2158 

Michael Brasfield Direct by Loevy 9 6-15-2018 2159-2227 

Michael Brasfield Direct by Loevy 10 6-18-2018 2234-2275 

Michael Brasfield Cross by Rosen 10 6-18-2018 2275-2343 

Michael Brasfield Cross by Rosen 10 6-18-2018 2349-2407 

Michael Brasfield Re-Direct by Loevy 10 6-18-2018 2407-2442 

Michael Brasfield Re-Cross by Rosen 10 6-18-2018 2442-2449 

Orlando Lopez Playing of Designated Video 

Deposition (not transcribed) 10 6-18-2018 2449 

Orlando Lopez Playing of Designated Video 

Deposition (not transcribed) 11 6-19-2018 2463 

Steve Gawrys Re-Direct by Loevy 11 6-19-2018 2463-2476 

Edward Mingey Direct by Loevy 11 6-19-2018 2477-2524 

Edward Mingey Direct by Loevy 11 6-19-2018 2536-2543 

Juan Rivera Direct by Art 11 6-19-2018 2543-2571 

Juan Rivera Cross by Golden 11 6-19-2018 2571-2576 

Darren O’Brien Direct by Loevy 11 6-19-2018 2577-2609 

Darren O’Brien Cross by Polick 11 6-19-2018 2609-2615 

Darren O’Brien Re-Direct by Loevy 11 6-19-2018 2615-2621 

Julie Rosner Direct by Loevy 11 6-19-2018 2622-2653 

Julie Rosner Cross by Sotos 11 6-19-2018 2653-2669 

Julie Rosner Re-Direct by Loevy 11 6-19-2018 2669-2674 

Julie Rosner Re-Cross by Sotos 11 6-19-2018 2674-2678 

Julie Rosner Re-Direct by Loevy 11 6-19-2018 2678-2679 

Julie Rosner Re-Cross by Sotos 11 6-19-2018 2679-2680 

John Guzman Direct by Loevy 11 6-19-2018 2681-2692 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 153 of 157 PageID #:40633
App-8 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

John Guzman Direct by Loevy 12 6-20-2018 2704-2712 

John Guzman Cross by Polick 12 6-20-2018 2712-2716 

John Guzman Re-Direct by Loevy 12 6-20-2018 2716 

Daniel Noon Direct by Loevy 12 6-20-2018 2717-2727 

Daniel Noon Cross by Golden 12 6-20-2018 2727-2737 

Daniel Noon Re-Direct by Loevy 12 6-20-2018 2737-2749 

Daniel Noon Re-Cross by Golden 12 6-20-2018 2749-2752 

Daniel Noon Re-Direct by Loevy 12 6-20-2018 2752 

Daniel Noon Re-Cross by Golden 12 6-20-2018 2753-2755 

Daniel Noon Re-Direct by Loevy 12 6-20-2018 2755-2756 

Joseph Sparks Direct by Loevy 12 6-20-2018 2756-2775 

Joseph Sparks Cross by Polick 12 6-20-2018 2775-2783 

Joseph Sparks Re-Direct by Loevy 12 6-20-2018 2783-2791 

Richard Rivera Direct by Swaminathan 12 6-20-2018 2791-2814 

Richard Rivera Cross by Golden 12 6-20-2018 2815-2818 

William Dorsch Direct by Sotos 12 6-20-2018 2665-2713 

William Dorsch Cross by Bowman 12 6-20-2018 2713-2751 

William Dorsch Re-Direct by Sotos 12 6-20-2018 2751-2799 

William Dorsch Re-Direct by Leinenweber 12 6-20-2018 2799-2806 

William Dorsch Re-Direct by Leinenweber 13 6-21-2018 2989-3023 

William Dorsch Re-Cross by Bowman 13 6-21-2018 3023-3040 

William Dorsch Re-Direct by Sotos 13 6-21-2018 3040-3078 

Larry Victorson Direct by Loevy 13 6-21-2018 3079-3117 

Larry Victorson Cross by Sotos 13 6-21-2018 3124-3155 

Larry Victorson Cross by Leinenweber 13 6-21-2018 3155-3157 

Larry Victorson Re-Direct by Loevy 13 6-21-2018 3157-3168 

Larry Victorson Re-Cross by Sotos 13 6-21-2018 3168-3169 

Larry Victorson Re-Direct by Loevy 13 6-21-2018 3169-3170 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 154 of 157 PageID #:40634
App-9 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

Ramon Lopez Direct by Golden 13 6-21-2018 3172-3179 

Ramon Lopez Cross by Loevy 13 6-21-2018 3179-3188 

Cathryn Crawford Direct by Carney 13 6-21-2018 3188-3202 

Cathryn Crawford Cross by Bowman 13 6-21-2018 3202-3203 

Cathryn Crawford Re-Direct by Carney 13 6-21-2018 3204-3208 

James Hickey Direct by Rosen 13 6-21-2018 3208-3239 

James Hickey Cross by Bowman 13 6-21-2018 3239-3251 

James Hickey Cross by Bowman 14 6-22-2018 3264-3295 

James Hickey Re-Direct by Rosen 14 6-22-2018 3295-3314 

James Hickey Re-Cross by Bowman 14 6-22-2018 3314-3326 

James Spratte Direct by Rosen 14 6-22-2018 3326-3346 

James Spratte Cross by Loevy 14 6-22-2018 3347-3364 

James Spratte Cross by Loevy 14 6-22-2018 3378-3429 

James Spratte Re-Direct by Rosen 14 6-22-2018 3430-3431 

James Spratte Re-Cross by Loevy 14 6-22-2018 3432-3433 

Jeffrey Noble Direct by Rosen 14 6-22-2018 3433-3455 

Jeffrey Noble Cross by Loevy 14 6-22-2018 3455-3497 

Stephen Machain Reading of Designated 

Deposition Testimony 14 6-22-2018 3497-3514 

Stephen Machain Reading of Designated 

Deposition Testimony 15 6-25-2018 3525-3530 

John Boyle Direct by Golden 15 6-25-2018 3533-3551 

John Boyle Direct by Leinenweber 15 6-25-2018 3552-3554 

John Boyle Cross by Loevy 15 6-25-2018 3554-3588 

John Boyle Re-Direct by Leinenweber 15 6-25-2018 3589-3590 

John Boyle Re-Cross by Loevy 15 6-25-2018 3590-3593 

Cynthia Estes Reading of Designated 

Deposition Testimony 15 6-25-2018 3597-3662 

John Wasilewski Direct by Barber 15 6-25-2018 3667-3697 

John Wasilewski Cross by Art 15 6-25-2018 3697-3701 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 155 of 157 PageID #:40635
App-10 

WITNESS EXAM EXHIBIT DATE PAGE(S) 

George Luis Ruiz Reading of Designated 

Deposition Testimony 15 6-25-2018 3702-3726 

Thomas Bryant Reading of Designated 

Deposition Testimony 15 6-25-2018 3727-3780 

Bernard Murray Direct by Rosen 15 6-25-2018 3781-3799 

Bernard Murray Direct by Rosen 16 6-26-2018 3809-3844 

Bernard Murray Cross by Loevy 16 6-26-2018 3844-3920 

Bernard Murray Re-Direct by Rosen 16 6-26-2018 3920-3922 

Bernard Murray Re-Cross by Loevy 16 6-26-2018 3922 

Orlando Lopez Reading of Designated 

Criminal Trial Testimony 16 6-26-2018 3924-3952 

John Wixted Direct by Barber 16 6-26-2018 3976-3989 

John Wixted Direct by Given 16 6-26-2018 3989-4015 

John Wixted Cross by Loevy 16 6-26-2018 4015-4075 

John Wixted Re-Direct by Given 16 6-26-2018 4075-4080 

John Wixted Re-Direct by Leinenweber 16 6-26-2018 4080-4082 

John Wixted Re-Cross by Loevy 16 6-26-2018 4082-4085 

Loevy Closing 17 6-27-2018 4146-4228 

Bowman Closing 17 6-27-2018 4228-4243 

Sotos Closing 17 6-27-2018 4248-4312 

Leinenweber Closing 17 6-27-2018 4315-4331 

Rosen Closing 17 6-27-2018 4331-4351 

Loevy Rebuttal 17 6-27-2018 4352-4368 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 156 of 157 PageID #:40636
CERTIFICATE OF SERVICE 

 I, Jon Loevy, an attorney, hereby certify that on November 14, 2018, I filed the forgoing 

PLAINTIFF’S RESPONSE TO DEFENDANTS’ POST-TRIAL MOTION using the Court’s 

CM/ECF system, which effected service on all counsel of record. 

 /s/ Jon Loevy 

 Jon Loevy 

 One of Plaintiff’s Attorneys

Arthur Loevy Locke E. Bowman 

Jon Loevy David Shapiro 

Anand Swaminathan Alexa Van Brunt 

Steven Art RODERICK MACARTHUR JUSTICE CENTER 

Rachel Brady Northwestern University School of Law 

Sean Starr 375 E. Chicago Avenue 

LOEVY & LOEVY Chicago, Illinois 60611 

311 N. Aberdeen St., Third Floor (312) 503-0844 

Chicago, IL 60607 

(312) 243-5900 

jon@loevy.com 

Case: 1:12-cv-04428 Document #: 735 Filed: 11/15/18 Page 157 of 157 PageID #:40637