UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

DAVID BOURKE,

Plaintiff,

v.

VILLAGE OF DOWNERS GROVE, et al.,

Defendants.

No. 03 C 7749

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff filed a complaint for a civil action arising under 42 U.S.C. § 1983 against

employees of the Village of Downers Grove Illinois for allegedly suppressing exculpatory

evidence in a criminal homicide trial that resulted with a jury finding Plaintiff guilty of first

degree murder. In his complaint, Plaintiff also asserted a supplemental state law claim of legal

malpractice against Defendants, attorneys who represented him at trial. Defendants now move

for summary judgment. For the following reasons, Defendants’ Motion for Summary Judgment

is granted.

II. STATEMENT OF FACTS

The facts in this case are largely undisputed. On April 16, 1998, in the Village of

Downers Grove, Plaintiff Bourke shot and killed Roger Johnson. He was arrested that same day

and was later charged with murder. Plaintiff retained Defendants to represent him at trial. 

During the week-long jury trial, on behalf of Bourke, Defendants presented affirmative defenses

of use of force in defense of a person, 720 ILCS 5/7-1 (West 1998) and use of force in defense of

a dwelling (720 ILCS 5/7-2). Bourke was found guilty of first-degree murder and sentenced to

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twenty-five years in jail. The presiding judge denied his motion for a new trial stating “I don’t

feel there is any basis for me to usurp the jury’s finding of fact in this case[.]” Bourke appealed

his conviction, arguing that (1) the State failed to disprove his affirmative defense and prove the

elements of first-degree murder beyond a reasonable doubt, (2) his conviction should be reduced

to second-degree murder, (3) he received ineffective assistance of counsel where counsel failed

to strike two prospective jurors, move to exclude photos and recordings, and object to several of

the State’s remarks during closing argument. The Illinois Appellate Court reversed Plaintiff’s

conviction on the ground that the State failed to disprove Plaintiff’s affirmative defense claim

beyond a reasonable doubt. The court did not reach the other arguments put forth by Bourke.

In his civil complaint, Plaintiff alleges that he was wrongly convicted as a result of

Defendants’ (1) failure to present testimony from a crime scene expert who would have rebutted

the State’s reading of the evidence, (2) stipulation to the admission of a tape recording that

contained “gaps of apparent erasure,” and excluded evidence that would have helped Plaintiff’s

case, (3) failure to exercise professional judgment in selecting the jury, to object to the admission

of prejudicial photographs, and to object to the use of the aforementioned tape recording. 

Plaintiff has since limited his case to the single claim of malpractice arising from allegations that

Defendants failed to exercise reasonable professional judgment in choosing a jury.

The voir dire and jury selection took place on April 20, 1999. Defendant was present and

seated with his attorneys. Before Defendants questioned the jury pool, the State exercised two

peremptory challenges, and asked to strike Juror No. 193 for cause – a request that was denied. 

The court conducted its own voir dire and as a result excused two prospective jurors.

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During their own voir dire, Defendants introduced several issues relevant to Bourke’s

case – the case involved self-defense, a gun was involved in the homicide, Bourke was the cause

of a violent death, and that he lived in a “transient motel.” Juror No. 9, a chemist, expressed

concerns about firearms. Defendants asked the juror if he felt he could put those feelings aside

and judge Bourke fairly, to which he responded “I think so.” Juror No. 193 had some difficulty

understanding English, and had trouble with one of the questions Defendants posed to her –

whether she would be able to judge Bourke fairly and hold the State to its burden,

notwithstanding the violent nature of the crime. Defendants repeated the question in a different

form and asked if the juror understood. She replied that she did, and then answered positively. 

Defendants consulted with Bourke and decided not to exercise any peremptory

challenges. Jurors No. 9 and No. 193 were chosen as part of the panel, although Juror No. 193

was excluded during the trial and replaced by an alternate. Plaintiff makes no allegations of any

jury misconduct, nor does Plaintiff claim to know what would have resulted had any of the jurors

been eliminated by peremptory challenge.

III. STANDARD OF REVIEW

Summary judgment should be granted when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of

Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)).

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Once the moving party has set forth the basis for summary judgment, the burden then

shifts to the nonmoving party who must go beyond mere allegations and offer specific facts

showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett,

477 U.S. 317, 323-24 (1986). The nonmoving party must offer more than “[c]onclusory

allegations, unsupported by specific facts” in order to establish a genuine issue of material fact.

Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S.

871, 888 (1990)). A party will be successful in opposing summary judgment only if it presents

“definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d

432, 437 (7th Cir. 2000). I consider the record in the light most favorable to the nonmoving

party, and draw all reasonable inferences in the nonmovant's favor. Lesch v. Crown Cork & Seal

Co., 282 F.3d 467, 471 (7th Cir. 2002). I will accept the nonmoving party's version of any

disputed fact only if it is supported by relevant, admissible evidence. Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).

IV. ANALYSIS

“To prevail on a legal malpractice claim, the plaintiff client must plead and prove that the

defendant attorneys owed the client a duty of due care arising from the attorney-client

relationship, that the defendants breached that duty, and that as a proximate result, the client

suffered injury.” Tri-G, Inc. v. Burke, Bosselman & Weaver, 856 N.E.2d 389, 394 (Ill. 2006). 

Additionally, “under Illinois law a plaintiff must prove his innocence before he may recover for

his criminal defense attorney's malpractice.” Kramer v. Dirksen, 695 N.E.2d 1288, 1290 (Ill.

App. 1998). Defendants argue that (1) Illinois law and public policy preclude liability for an

attorney’s exercise of professional judgment in selecting a jury; (2) as a matter of law,

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Defendants’ actions and/or omissions cannot be the proximate cause of Plaintiff’s purported

injuries; and (3) Plaintiff’s claims are speculative as a matter of law. Because Plaintiff’s claim

cannot survive the issues raised with regard to the intertwined matters of proximate cause and the

speculative nature of the injury, I need not reach the question of whether public policy precludes

liability in this case.

In order for Plaintiff to succeed in a legal malpractice action, he must show proximate

cause “establishing that ‘but for’ the attorney's malpractice, [P]laintiff would have prevailed in

the underlying action.” Preferred Personnel Services, Inc. v. Meltzer, Purtill and Stelle, LLC,

902 N.E.2d 146, 151 (Ill. App. 2009). In this case, Plaintiff supports his attorney malpractice

claim with expert opinion. Attorney David Thomas offers the opinion that Defendants “did not

meet the standard of care reasonably to be expected from criminal defense counsel in 1999.” 

According to Thomas, Defendants’ questioning during voir dire did not sufficiently probe

the attitudes and practices of the potential jurors. He notes that Defendants failed to ask

background questions, even when Juror No. 9 was clearly bothered that Bourke kept a gun in his

motel room. Defendants did ask the juror whether he could put these feelings aside and fairly

judge Bourke, to which he responded, “I think so.” Thomas explained that, “[a]lthough counsel

later rehabilitated the hesitant man by asking leading questions, counsel never explored with the

juror why he had this attitude and what contributed to it. Without this information, there is no

way to judge the worth of the juror’s later responses to leading questions.” However, Defendant

Brucar testified that he got the impression that Juror No. 9, a chemist, was someone “who would

very specifically follow the law.”

Thomas also points to the questioning of Juror No. 193, who, according to Thomas,

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“quite frankly stated more than once that the violent nature of the offense charged made it more

likely that she would find Mr. Bourke guilty than if he were charged with a non-violent offense. 

Defense counsel never even rehabilitaed her on this issue, let alone find [sic] out the basis for her

prejudice.” While Thomas’s reading of the transcript here is debatable due to the juror’s

difficulty understanding English, the selection of Juror No. 193 could not have impacted the

verdict since she was excused from service during the trial. 

During their voir dire, Defendants introduced several issues relevant to Bourke’s case –

the case involved self-defense, a gun was involved in the homicide, Bourke was the cause of a

violent death, and that he lived in a “transient motel.” According to Thomas, there were entire

relevant areas, such as consumption of alcohol, that were not even broached, despite the fact that

excessive alcohol consumption played a major role in the offense. However, Defendant Brucar

testified that raising such an issue is “situation specific,” noting that where both the victim and

defendant were using alcohol, raising the issue is a double-edged sword.

It is true that Defendants made neither challenges for cause, nor peremptory challenges as

they were satisfied with the panel that was chosen. By the time of the Defendants’ voir dire,

several potential jurors had already been dismissed on the basis of the State’s questioning and the

Judge’s own questioning. Defendant Conger testified that, as part of the calculus in declining to

exercise any challenges, Defendants considered what they knew about the remaining potential

jury pool.

In his opinion, Thomas concludes that “there is a reasonable likelihood that deficient

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

evidence strongly supported Mr. Bourke’s position.” According to the court, no rational trier of

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fact could have found Bourke guilty of murder beyond a reasonable doubt due to the State’s

failure to meet its burden. It is the jury’s irrationality that Plaintiff attempts to ascribe to

Defendants’ action in selecting the jury.

“We leave probable cause to juries because it is often debatable, and fair-minded persons

might reach different outcomes[.]” First Nat’l Bank of LaGrange v. Lowrey, 872 N.E.2d 447,

469 (Ill. App. 2007) (quotations omitted). But, “[w]hile the issue of proximate cause typically is

one of fact, where reasonable persons cannot disagree, it is one of law.” Gelsomino v. Gorov, 502

N.E.2d 264, 268 (Ill. App. 1986).

In this case, reasonable persons cannot disagree, in fact they don’t disagree. Bourke

testified that he does not know what the result would have been had any of the juror not been

selected to serve. Plaintiff’s expert Thomas concludes that “there is a reasonable likelihood” that

the allegedly deficient performance of counsel resulted in the guilty verdict. Neither Bourke nor

Thomas claims that but for the Defendants’ actions Plaintiff would have prevailed. 

No one knows in advance how a potential juror will react to the

evidence, or how the jurors will interact with each other in the jury

room. Even experienced advocates find predictions difficult. The

best available study concludes that both prosecutors and defense

counsel, in exercising peremptory challenges, are as likely to

remove from the jury persons who favor their cause as persons who

vote against it.

U.S. v. Boyd, 86 F.3d 719, 724 (7th Cir. 1996) (improper exercise of peremptory challenges by

the defense does not entitle defendant to a new trial where the challenge does not rise to the level

of ineffective assistance of counsel).

Nowhere in Plaintiff’s response to Defendants’ Motion for Summary Judgment does he

discuss but-for causation, nor does he present expert testimony to support it. Plaintiff instead

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argues that the court should reject Defendants’ claim that “malpractice in jury selection cannot,

as a matter of law, be the proximate cause of an erroneous conviction.” However, that is not

what Defendants claim. They are not arguing that malpractice can never be the proximate cause

of an erroneous conviction, only that it is not the case here, under these facts. Several potential

jurors had already been dismissed prior to the Defendants’ voir dire. Plaintiff alleges no

misconduct by Juror No. 9, the only juror who, according to Plaintiff, raised a red flag through

one of his responses. Plaintiffs could (but don’t) argue that, had Defendants asked more

questions or probed more deeply, they might have uncovered some biases or prejudices that

might have led the jury to a unanimous guilty verdict, however this would be too speculative an

argument. Defendants raised issues relative to the case, asked jurors whether they could be fair

and impartial and received positive responses. The presiding judge saw no reason to usurp the

jury’s fact-finding role. 

In his report, Thomas points to only one issue that he believes should have been raised

and wasn’t – excessive alcohol consumption. It is unclear how raising this issue would have

revealed any prejudice that might have led to an erroneous unanimous guilty verdict, especially

where there was evidence that both Bourke and the victim had been drinking. It might be

possible that such a question might have illicited feelings of disdain toward a drunk victim, and a

lack of impartiality toward the person who killed him, but this is too speculative to satisfy but-for

causation. 

“Actual damages in a legal malpractice case are not presumed; a plaintiff must plead and

prove that she has suffered injuries resulting from the defendant attorney’s alleged malpractice.”

Nettleton v. Stogsdill, 899 N.E.2d 1252, 1247 (Ill. App. 2008). The court in Merritt v.

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Goldenberg, 841 N.E.2d 1003, 1010 (Ill. App. 2005) explained that “[t]he malpractice plaintiff

must prove a case within a case, that is, the plaintiff is required to prove the underlying action

and what his recovery would have been in that prior action absent the alleged malpractice.”

While here, Plaintiff’s underlying action does not involve recovery, the point is well-taken. The

Appellate Court’s order supports the notion that Plaintiff could have, indeed should have,

succeeded in the underlying action. However, he has failed to provide “definite, competent

evidence,” as required to survive a summary judgment motion, that Defendants’ alleged

malpractice caused guilty verdict, or that Defendants’ conduct resulted in the selection of an

irrational jury. Because Plaintiff fails to establish sufficient facts in support of proximate

causation, his claim cannot survive.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted.

ENTER:

James B. Zagel

United States District Judge

DATE: May 29, 2009

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