IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID BOURKE, )

)

Plaintiff, )

) No. 03 CV 7749

-vs- )

) (Judge Zagel)

THE VILLAGE OF DOWNERS 

GROVE, et al.,

)

)

)

Defendants. )

PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO MOTION FOR SUMMARY JUDGMENT

OF DEFENDANTS CONGER AND BRUCHAR

I. Introduction

In 1998, plaintiff David Bourke was convicted of murder after a 

jury rejected Bourke‘s claim of self defense. The Illinois Appellate Court 

reversed plaintiff‘s conviction outright, agreeing with Bourke that he 

had acted in self defense.

Plaintiff contends in this action that defendants Brucar and 

Conger, the attorneys who represented him at trial, failed to exercise a 

reasonable degree of professional care and skill in selecting the jury 

and that their malpractice was a proximate cause of his erroneous 

conviction.

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Brucar and Conger conducted a superficial voir dire and did not 

probe jurors‘ attitudes about ownership of firearms (plaintiff owned a 

gun which he kept in his motel room), the use of deadly force in defense 

of dwelling (plaintiff used deadly force in defense of his dwelling), or 

the use of alcohol. (Plaintiff was intoxicated when he used deadly force.)

Defendants declined to use any peremptory challenges, even against 

one prospective juror who revealed that ―I don‘t like firearms. I don‘t 

like them in the hands of—I don‘t like them in private homes, never 

have.‖ (Transcript 56, filed by Defendants as Exhibit E.) Defendants 

continued to withhold a peremptory challenge even when this juror 

(who would later became the jury foreman) could only state ―I think so‖ 

when asked if he could put his personal feelings about gun ownership 

aside. 

Plaintiff supports his attorney malpractice claim, as required by 

Illinois law, Schmidt v. Hinshaw, Culbertson, 75 Ill.App.3d 516, 522, 

394 N.E.2d 559, 564 (1979), with expert opinion. Plaintiff has engaged 

attorney David Thomas, who bases his opinions on nearly 40 years of 

practice, including about 27 years as a clinical professor at IIT ChicagoKent College of Law. 

Thomas has offered the opinion that, in selecting the jury at trial,

Brucar and Conger ―did not meet the standard of care reasonably to be 

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expected from criminal defense counsel in 1999.‖ (Thomas Report, page 

4, submitted by defendants as their Exhibit C.) Thomas also offers the 

opinion that ―there is a reasonable likelihood the deficient performance 

of counsel resulted in the guilty verdict because, as the Appellate Court 

found, the evidence strongly supported Mr. Bourke‘s position.‖ Id.

Defendants do not challenge the admissibility of Thomas‘ 

opinions. Nor do defendants ask the Court to resolve the dispute 

between the opinions of David Thomas and those of defendants‘ expert, 

Brian Telander. Finally, defendants appear to concede that the outright 

reversal of plaintiff‘s conviction by the Illinois Appellate Court satisfies 

the Illinois ―actual innocence‖ rule. Winniczek v. Nagelberg, 394 F.3d 

505, 507 (7th Cir. 2005).

Defendants appear to recognize that a jury must resolve the 

disputed questions of whether defendants failed to exercise a 

reasonable degree of professional care and skill and, if so, whether that 

malpractice was a proximate cause of plaintiff ̳s wrongful incarceration. 

Defendants have nonetheless filed a motion for summary 

judgment, asserting that, as a matter of law, an attorney can never be 

liable for failing to exercise a reasonable degree of professional care and 

skill in jury selection. (Def.Mem. 9–17.) Plaintiff shows below that this 

argument is without merit.

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II. Defendants’ Flawed Syllogism

Defendants‘ argument is based on a flawed syllogism: because 

malpractice is the civil counterpart to ineffective assistance of counsel 

in criminal cases, defendants assert that this malpractice action must 

fail because Illinois courts have declined to grant relief in criminal 

cases on claims that trial counsel was ineffective in selecting a jury. 

(Def.Mem. 9-11.)

The flaw in defendants‘ syllogism is that a court will never reach 

any question about jury selection when, as in plaintiff‘s direct appeal, 

the court concludes that the evidence failed to establish guilt beyond a 

reasonable doubt. None of the cases cited by defendants overcome this 

infirmity in logic.

The defendant in People v. Begay, 377 Ill.App.3d 417, 879 N.E.2d 

962 (2007) (Def.Mem. 9-10), did not challenge the sufficiency of the 

evidence. One of the appellate arguments raised by Begay was that 

trial counsel should have challenged a juror for cause after the juror 

answered ―No‖ to the question ―So you wouldn‘t be fair, either?‖ 879 

N.E.2d at 968. The court identified a rational trial strategy that would 

have been consistent with withholding a challenge for cause and denied 

relief. Id.

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The Court in Begay set out the Illinois rule that ―defense 

counsel‘s conduct during jury voir dire involves matters of trial strategy 

that generally are not subject to scrutiny.‖ 879 N.E.2d at 968 

(emphasis added). This rule is far less sweeping than the absolute 

prohibition urged by defendants.

That Illinois does not immunize voir dire from claims of attorney 

malpractice is also apparent in People v. Lopez, 371 Ill.App.3d 920, 864 

N.E.2d 726 (2007) (Def.Mem. 10). There, the defendant argued on 

appeal that defense counsel should have used peremptory challenges to 

strike two prospective jurors. 864 N.E.2d at 736. The court rejected 

this argument, noting that counsel had ―exercised four peremptory 

challenges to dismiss jurors who were members of the same panel as 

[the two unchallenged jurors].‖ 864 N.E.2d at 737. 

The court in Lopez made plain that Illinois does not apply the 

sort of irrebutable presumption urged by defendants in this case, 

concluding that ―[d]efendant has presented no evidence to rebut the 

presumption that counsel's decisions were the result of trial strategy, 

and, on the record before us, we find that counsel's decision to accept 

[the two jurors] was a matter of trial strategy.‖ 864 N.E.2d at 737. 

None of the remaining cases cited by defendants preclude a 

person like plaintiff, whose conviction was reversed outright for 

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insufficient evidence, from presenting evidence at a civil malpractice 

trial that his attorneys failed to exercise a reasonable degree of 

professional care and skill in selecting a jury and that this malpractice 

was a proximate cause of plaintiff ̳s wrongful incarceration.1 Plaintiff 

shows below that defendants‘ alternate ―public policy argument‖ is 

equally devoid of merit.

 

1 People v. Powell, 355 Ill.App.3d 124, 822 N.E.2d 131 (2004) (Def.Mem. 10) 

(failure to request judicial voir dire on street gang bias was a matter of trial 

strategy under facts of case); People v. Bowman, 325 Ill.App.3d 411, 758 

N.E.2d 408 (2001) (Def.Mem. 10) (trial judge did not abuse discretion in 

denying two challenges for cause; no plain error in refusal of trial judge to 

conduct more extensive voir dire of one juror; ineffective assistance claim 

rejected because ―[t]he defendant has failed to show that counsel's decisions, 

questionable as they might be, were not tactical and a matter of jury selection 

strategy.‖); People v. Miles, 176 Ill.App.3d 758, 531 N.E.2d 891 (1988) 

(Def.Mem. 10) (ineffective assistance for failure to challenge a juror rejected 

because of the ―overwhelming evidence of guilt‖); People v. Furdge, 332 

Ill.App.3d 1019, 774 N.E.2d 415 (2002) (Def.Mem. 10–11) (failure to question 

jurors about street gangs was part of rational trial strategy and, under 

circumstances of case, not prejudicial). 

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III. The Court Should Decline Defendants’ Request to 

Write New Illinois Law

Defendants ask this Court to hold, as a matter of first 

impression, that Illinois law does not permit an attorney to be sued for 

failing to exercise a reasonable degree of professional care and skill in 

selecting a jury. (Def.Mem. 11–16.) Defendants also ask the Court to 

reach another question of first impression, and hold that malpractice in 

selecting a jury cannot, as a matter of law, be the proximate cause of an 

erroneous guilty verdict. (Def.Mem. 17–19.) In addition, defendants 

ask the Court to hold that two and a half years of incarceration because 

of an erroneous jury verdict amounts to only a ―speculative‖ injury. 

(Def.Mem. 19-21.) 

Defendants fail to show, however, that any court has adopted 

any of these proposed rules. Nor are defendants able to show that the 

Illinois Supreme Court is likely to adopt any of these proposed rules. 

Defendants overlook several material facts in their policy 

arguments. (Def.Mem. 13–17.) First, in this case the jury returned a 

guilty verdict on evidence which did not allow "any rational trier of fact 

[to] .... have found the essential elements beyond a reasonable doubt." 

(Rule 23 Order at 30, filed by defendants as Exhibit A.)

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Second, plaintiff spent two and half years in the penitentiary as 

the result of his erroneous conviction, hardly a ―speculative‖ injury.

Third, trial counsel had an economic incentive to do the trial as 

quickly as possible. Plaintiff was initially represented by the DuPage 

County Public Defender; defendant Conger was the assistant Public 

Defender working on the case. 

Conger left the Public Defender‘s office in 1999 and entered into a 

partnership with defendant Brucar. Shortly thereafter, Conger 

solicited plaintiff as a client — as plaintiff testified at his deposition,

―Scott Conger came to see me and told that for five grand him and his 

new partner would take care of me, but he said I had to request it 

because if I didn‘t it would like he did something illegal.‖ (Bourke Dep. 

138, filed by defendants as Exhibit F.) 

It is unlikely that this factual background would encourage the 

Illinois Supreme Court to create a rule to immunize lawyers from 

liability for their malpractice. 

Defendants are in error in asserting that the Sixth Circuit 

adopted their proposed rule in Woodruff v. Tomlin, 616 F.2d 924 (6th 

Cir. 1980). (Def.Mem. 14.) In that case, in addition to the language 

quoted by defendants, the Court made plain that its holding should not 

read

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[T]o say, however, that an attorney may not be held liable 

for any of his actions in relation to a trial. He is still bound 

to exercise a reasonable degree of skill and care in all his 

professional undertakings.

Woodruff v. Tomlin, 616 F.3d at 930.

A trial in this case is required on plaintiff‘s claim that defendants 

Brucar and Conger failed to exercise a reasonable degree of skill and 

care at the criminal trial. The Court should reject defendants‘ request 

that it fashion a new immunity. The Court should likewise reject 

defendants‘ claim (Def.Mem. 17–19), that their malpractice in jury 

selection cannot, as a matter of law, be the proximate cause of the 

erroneous conviction: this is a paradigmatic jury question which cannot 

be fairly resolved by a creation of an irrational legal principle.

IV. Conclusion

Defendants correctly point out that plaintiff has limited his case

to the single claim of malpractice arising from the manner in which 

defendants selected the jury. Plaintiff does not intend to advance the 

other theories mentioned in the complaint (failure to retain a crime 

scene expert, failure to object to the introduction into evidence of 

photographs, and failure to object to the use of a tape recording) as 

independent malpractice claims. 

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The Court reject defendants‘ request that it fashion new rules of 

law and set this case for trial on the factual questions of whether 

defendants Conger and Brucar failed to exercise a reasonable degree of 

professional care and skill in selecting the jury and that their 

malpractice was a proximate cause of plaintiff‘s erroneous conviction. 

Respectfully submitted,

/s/ Kenneth N. Flaxman

Kenneth N. Flaxman

ARDC #830399

200 S Michigan Ave, Ste 1240

Chicago, IL 60604

(312) 427-3200

Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of March, 2009, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system which will

send notification of such filing to the following: James L. DeAno, Esq., Deano

& Scarry LLC, 2100 Manchester Rd., Ste A-101, Wheaton, IL 60187-4579, and

Thomas P. McGarry, Renee O. Kelly, Hinshaw & Culbertson LLP, 222 N

LaSalle St, Ste 300, Chicago, IL 60601, and I hereby certify that I have mailed

by United States Postal Service the document to the following non CM/ECF

participants: none.

/s/ Kenneth N. Flaxman

______________________

Kenneth N. Flaxman

ARDC Number 08830399

200 S Michigan Ave, Ste 1240

Chicago, IL 60604-2430

(312) 427-3200 (phone)

(312) 427-3930 (fax)

knf@kenlaw.com (email)

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