Mayor Rahm Emanuel’s Law Department is back in court arguing over its failure to turn over evidence in a lawsuit stemming from a 2012 police shooting. It’s one indication that problems at the Law Department continue, even as a new corporation counsel takes over.
This week, U.S. District Court Judge Joan Gottschall gave city attorneys leave to file a motion to reconsider her January 3 ruling, which found they had acted with “willfulness, fault and bad faith” in the case of Divonte Young.
The case raises questions about the thoroughness of a previous review of problems in the Law Department’s handling of evidence in police misconduct cases. That review was completed by former U.S. Attorney Dan Webb last July, at a cost of $1.6 million. Webb reported he found no culture or pattern of intentionally withholding evidence. The Young case, in which Gottschall found willful fault, was one of 75 that Webb reviewed but found no intentional misconduct.
The Webb review was commissioned after the resignation of a senior city attorney who had been sanctioned for concealing evidence in another police shooting case. Law Department attorneys have been sanctioned in three additional cases since then, including this one. In all, city lawyers have been sanctioned in eight cases since 2012.
Earlier this month, Gottschall found the city had engaged in “bad faith foot-dragging” after attorney H. Candace Gorman sought documents from the investigation into the shooting of Young. The city disregarded deadlines set by the court to produce documents and raise privilege claims to keep documents private, Gottschall ruled.
The judge ordered all files related to the investigation by the Independent Police Review Authority into the Young shooting released, including documents that normally would be covered by attorney-client and work-product privileges.
Gorman said she’s received extensive electronic files, although she’s concerned that she still doesn’t have all the documents she should. She has also objected that the city didn’t follow the court’s protocol for electronic documents, providing hundreds of e-mails and attachments as PDFs, rendering them unsearchable.
Gorman is representing Divonte’s mother, LaShawnda Young, in a wrongful death lawsuit. Divonte Young was 20 years old in August 2012 when he was shot and killed by a Chicago police officer who said Young had fired a gun at him.
Witnesses confirm there were gunshots fired prior to the incident, though not in the immediate area, according to Gorman. She suggests the officer, Otis Watts, heard the shots, saw Divonte, perhaps with his cell phone out, and simply began shooting at him.
Divonte Young ran and was turning into an alley when he was shot in the back.
Gorman said on an audiotape of IPRA’s interview with Watts, his lawyer can be heard whispering in his ear before Watts says that Young turned and pointed a gun at him, then turned a second time and pointed the gun again.
“That gun didn’t exist,” she said. No weapon was found at the scene.
During discovery, Gorman began to suspect she wasn’t getting everything when she asked about a follow-up interview with a witness at the scene who identified Divonte Young and said he was shooting a gun. “Who wouldn’t go back and nail down the details with a favorable witness?” she wondered.
She asked about the follow-up interview multiple times, and each time was told there was nothing in the file. Then she sent an interrogatory, requiring attorneys to swear to the truthfulness of their response, and was again told there was nothing.
But a few weeks later, she was given a report of a second interview with the witness, which took place six months after the incident. In that interview, the witness repeated much of his original story but said he didn’t know Divonte Young and was unable to identify him in a photo lineup.
Gorman also knew police had interviewed Divonte’s girlfriend at the police station, but the city repeatedly denied there was any record of the interview. But about a year into discovery, while going over an inventory sheet, she saw that the video of that interview was listed. She then forced the city to produce it.
The video “was outrageous,” said Gorman. It opened with the detective telling the young woman she was suspected of murder.
“It took a year with them denying there was anything, and then I found it on the inventory list, and they acknowledged, ‘Oh yeah, there is a video, OK we’ll find it,’ ” Gorman said.
Then there was the matter of the IPRA investigator who initially reported Divonte Young was standing in the middle of the street at the time of the incident. That investigator was replaced, and all subsequent reports placed Divonte standing partially hidden behind a building across the street. That’s somewhat closer – though still not very close – to a spot where police say they found some shell casings, Gorman said.
Gorman considers the Webb report “a whitewash.” “When you have attorneys for the city playing games and not turning things over, forcing you to file motion after motion after motion, that to me is willful.”
And it’s plausible to suppose that, by requiring such repeated efforts to obtain material, city lawyers may hope that some significant piece of evidence will fall through the cracks.
According to the Law Department, all of Webb’s recommendations for streamlining and improving the city’s handling of discovery requests have been implemented.
But according to Gorman, problems continue – as shown by a recent back-and-forth over whether a Law Department attorney who was negotiating discovery issues for the city was actually representing city agencies or individual officers who are defendants in the suit.
That dispute drew a stern lecture from Judge Gottschall this week over possible conflict-of-interest issues when the Law Department provides representation for both the city and its employees. For Gorman, it was just more waste of her time and looked like another effort to throw her off track.
“They just can’t stop themselves from playing games,” she said.
The City Council’s Progressive Caucus recently called for a federal investigation of the Law Department. That’s probably not going to happen. But if the department is to clean up its act, it’s going to require an honest assessment of the problem.