A federal judge Monday found a lawyer for the city intentionally misled the court when he concealed a key recording of a police radio dispatch to attorneys for the family of a man shot to death by Chicago cops in 2011.
Hours later, the veteran city attorney, Jordan Marsh, resigned, city officials said.
U.S. District Judge Edmond Chang reversed a jury’s decision that found Officers Gildardo Sierra and Raoul Mosqueda didn’t wrongfully kill Darius Pinex. The judge granted Pinex’s family a new trial in their lawsuit against the city.
Scott Rauscher, an attorney for the Pinex family, said, “We feel confident about a retrial.”
Rauscher said the police dispatcher’s recording “tells the jury they had no reason to pull the car over and their whole story was a lie.”
As for Marsh, he said, “I haven’t run into anything like what Mr. Marsh did in this case.”
Marsh, who handled civil rights cases for the city, knew about the recording before the lawsuit went to trial in March 2015, Chang said in a 72-page opinion.
“The court has no choice but to conclude, based on the record evidence, that Marsh intentionally withheld this information from the court,” the judge wrote.
Another city attorney, Thomas Aumann, “failed to make a reasonable inquiry, as required by the discovery rules, to search for the recording,” Chang added.
Aumann resigned on Aug. 31, city officials say.
The conduct by Marsh and Aumann thwarted the ability of lawyers for Pinex’s family to prepare for trial, Chang said.
Attorneys for Pinex asked the city for the recording so they could show the officers were not acting on information that would have justified an aggressive traffic stop resulting in Pinex’s death.
Mosqueda had initially claimed he stopped the Oldsmobile Aurora that Pinex was driving based on an Englewood District police radio broadcast that warned the car might have been involved in a shooting in a different police district about three hours earlier.
Mosqueda said he jumped out of his police SUV with his gun drawn because of the warning.
But the recorded broadcast didn’t actually say anything about an Oldsmobile Aurora being wanted in a shooting or having a gun inside.
It only said cops in the South Chicago District had chased a ’98 Olds Aurora with temporary plates and the pursuit was terminated, according to Chang.
Marsh “buried” the Englewood audio recording and gave misleading statements at the trial — even saying the recording would have been “recycled a long time ago” — before he admitted its possible existence, the judge wrote.
“Attorneys who might be tempted to bury late-surfacing information need to know that, if discovered, any verdict they win will be forfeit and their clients will pay the price. They need to know it is not worth it,” he said.
In addition to ordering a new trial, Chang said the city and Marsh are jointly responsible for paying attorneys’ fees to the lawyers for Pinex’s family for the work they did in preparing for the trial.
Rauscher said those fees will be “substantial” but would not elaborate.
Chang noted that plaintiffs’ attorneys in another case in federal court were awarded $450,000 in attorneys’ fees after a serious violation of discovery rules resulted in a retrial.
Chang’s decision in the Pinex case is another black mark for the city following last year’s release of the video of Officer Jason Van Dyke shooting knife-wielding teenager Laquan McDonald 16 times. Outrage over the video has prompted a federal investigation into police practices and the firing of police Supt. Garry McCarthy. And Van Dyke is charged with murder in that 2014 death.
Pinex was fatally shot on Jan. 7, 2011, after Mosqueda and Sierra stopped his car in the Englewood neighborhood.
According to the judge, here is what happened that day:
• Sierra approached Pinex, who was the driver, and Mosqueda approached a passenger, Matthew Colyer.
• Pinex put the car in reverse and hit a light pole.
• Colyer fell out, injuring his hand, and Mosqueda was knocked down.
• Pinex put his car in drive and Mosqueda opened fire, killing Pinex. Sierra also fired but didn’t hit anyone.
The officers said they fired at Pinex because he had tried to drive away and was endangering their lives.
But lawyers for Pinex’s family said one of the officers fired an initial shot without any reason, prompting Pinex to flee.
The Oldsmobile Aurora that Pinex was driving had different temporary plates than the car involved in the earlier chase in the South Chicago District, the judge noted.
Despite the new evidence from the Englewood police dispatch, a federal jury ruled in favor of the officers and the case against them was dismissed.
But Chang said Pinex’s lawyers were sandbagged by the city’s failure to provide the broadcast to them before the trial.
They were forced to change their theory that Mosqueda was lying about the existence of the broadcast, the judge said.
Even Marsh’s fellow lawyers on the case were “shocked” and “upset” when he disclosed that he knew about the broadcast, Chang said. Marsh knew about it at least a month before the trial began, the judge said.
“The first trial was unfair and plaintiffs presentation was hurt beyond repair by the surprise,” Chang said in his opinion.
“I am so overjoyed that he ruled like this,” said Pinex’s mother, Gloria. She plans to hold a vigil Thursday night at 67th and May to commemorate the shooting near that intersection five years ago.
She said jurors need to “sit there and thoroughly listen to the case” during the retrial.
“They had no reason to pull him over,” she said of the officers. “I believe he thought they were trying to rob him. That’s why he tried to get away.”
Chang also said he believes there’s a lack of training for attorneys in the Law Department about collecting documents that need to be turned over to attorneys suing the city. And the city’s attorneys have shown a lack of understanding about how the police radio system works, he said.
Bill McCaffrey, a spokesman for the Law Department, said the conduct outlined in Chang’s opinion is “unacceptable.”
“When the Law Department first learned of this conduct several months ago, it immediately began taking steps to make sure it would not be repeated,” he said.
In June, city attorneys were required to review the department’s procedures, McCaffrey said. The department is updating training for lawyers and paralegals on obtaining and preserving recordings, including audio and video requests, he said.
Also, the department is working with the police and the Office of Emergency Management and Communications to improve the way records are requested and preserved, McCaffrey said.
The Pinex case was the third shooting that Sierra was involved in during 2011.
On July 12, 2011, he fatally shot Flint Farmer in Englewood.
Sierra and a different partner responded to a domestic battery call involving Farmer and his girlfriend. Sierra ran after Farmer and the partner maneuvered his squad car to block an escape.
Farmer, 29, told Sierra he didn’t have a gun, but the officer fired 13 rounds at him. Farmer collapsed and Sierra continued to shoot while Farmer lay in the fetal position. An in-car camera captured three muzzle flashes as Farmer lay on the ground.
Sierra told detectives that Farmer turned and charged him while removing a black object from his pocket and pointing it at him. He didn’t mentioning shooting Farmer on the ground. Farmer was carrying a cellphone, not a gun.
The Cook County state’s attorney’s office declined to file criminal charges against Sierra, saying he could have mistaken the phone for a gun. But the Independent Police Review Authority, which investigates every police shooting, is still reviewing the case, city officials said. And the city paid $4.1 million to Farmer’s family to settle a wrongful-death lawsuit.
Sierra, who also shot and wounded a 19-year-old man in March 2011, left the Chicago Police Department in August. Mosqueda remains on active patrol, according to the department.