My client was a convicted murderer in the seventeenth year of his fifty year sentence, and he had spent most of his time in prison studying the law. He served as an advisor to other inmates with legal issues, and frankly had drafted his complaint better than some attorneys would have. He alleged that certain correctional officers violated his constitutional rights by ignoring his known diabetes and served him food that violated his dietary restrictions; that they failed to provide him with his medications; that they served him his food cold and so scrambled on his plate as to make it inedible; that his mail was illegally withheld; and other similar minor indignities. The judge had already determined that seven of these counts were sufficiently meritorious to warrant a trial, while he dismissed three others. The Defendants had all filed their Answers, generally denying everything. At that point I entered the picture.
The Defendants were represented by the Office of the Attorney General. I contacted them to see if we could work out a settlement, but received no reply. So I started to work up the case as I would any other case scheduled for trial. I sent out nine sets of interrogatories, questions that must be answered in writing and under oath within 30 days, one to each Defendant. They sent none for my client to answer. Once I received the generic replies, mostly stating that they had no specific information and again generally denying everything, I began scheduling depositions. This took a while, since I deposed all nine Defendants and a few other correctional officers who might have had relevant information but did not. I had to travel to several Illinois penitentiaries for the depositions, since the correctional officers had been reassigned all over the State. The places that impressed me the most were the super-max penitentiaries, at Menard and Tamms. Menard was an old-fashioned place like in a crime movie from the thirties or forties, while Tamms was a new prison built mostly underground. Menard was scary but familiar, but Tamms was terrifying. Every hallway had barred doors that were remotely operated by officers watching everything on computer monitors. There was not a window in the entire place. I was never happier to leave a place in my life. The Assistant Attorney General in charge of the case chose not to depose my client.
I had received no information that was helpful to my client from any of the depositions. The next step in the process would normally be for the Defendants to file a motion for summary judgment. This motion argues that there is no dispute about the facts and all that is necessary to decide the case is a question of law. I expected one here but the Assistant Attorney General declined to file one. I'm only guessing, but I imagine he thought that much of the case was a question of "he said-she said" and the judge would deny the motion. Either that or he was desperate to get out of the office for a few days and a jury trial would be a welcome distraction.
So the case was set for a jury trial. All things considered the schedule had been somewhat expedited. Usually civil cases in federal court get postponed for years; criminal cases must have priority because of the "speedy trial rule": if a criminal defendant is not tried within a certain number of days the indictment is dismissed and cannot be reinstated. Consequently, most federal judges exist on a steady diet of guns and drugs; that is, there are so many federal gun cases and drug cases that the judges don't have time for anything else. But our case was being held in front of a Magistrate Judge, not a regular District Judge. A Magistrate Judge is sort of an assistant judge who is appointed by the regular judges in a District to take care of the overflow. Any party to a federal lawsuit may have his or her case heard by a District Judge, but it may take years. A Magistrate Judge has no such restrictions. So when we were asked if we would consent to a Magistrate Judge both the Assistant Attorney General and I said we would.
The day before the jury trial we met with the judge for him to consider Motions in Limine and jury instructions. A Motion in Limine is a motion usually prior to the start of a trial that is heard by the judge outside the presence of the jury. It is often used to attempt to exclude certain evidence that might be too prejudicial. I asked the judge to rule that my client should appear before the jury in a suit and tie, not an orange jump suit. I asked that he not be handcuffed in front of the jury. I asked that no mention be made of his criminal history except that he was incarcerated after being convicted of a crime. The Magistrate Judge, somewhat to my surprise, granted all of my motions over the objections of the AAG. We then considered the jury instructions to be used. When all of the testimony is done and the parties have concluded their closing arguments, the judge instructs the jury as to the law that governs the case. The judge doesn't just make these up; the parties submit the jury instructions they wish the judge to use and the judge decides which to read to the jury if there are any differences. Normally there are differences, as you might imagine, and if the choice the judge makes does not comply with the law the losing party can win a new trial on appeal. In this case the judge chose all of my suggested jury instructions just as he had granted all of my motions in limine. I think he was doing his best to deprive me of any issues on appeal, but of course there is no way to prove that and it wouldn't do me any good even if I could. The United States Court of Appeals for the Seventh Circuit would never grant me a new trial if I lost because the judge gave me everything I asked for.
The case was to be tried in East St. Louis, about a two hour drive each way, so I decided to stay in the area instead of driving back and forth. We were to start at 9:00 a.m on the first day with jury selection, so I started with an overnight after our jury instruction conference. Rather than staying in East St. Louis, which is not a safe city, I stayed about 15 minutes away. The hotel was very nice and had a good restaurant attached. I ate breakfast and dinner there for the four days I was away.
After the jury instruction conference I met my client for the first time to prepare him for his testimony the next day. I suppose I should have gone to the penitentiary to visit him, but it would have been an additional lengthy trip and I was already spending too much time on the case, time for which I would never be compensated. He was a seemingly nice middle-aged man, and I had to remind myself that he was a vicious killer. Fortunately I am a trained actor and was able to conceal my fear from the jury.
East St. Louis has a majority Black population, and it would have been very strange if some members of the jury pool were not Black. Several were, and I made it my mission to seat as many Black jurors as I could, on the theory that Black jurors would be more likely than white jurors to distrust the correctional system. Further, my client was Black and Black jurors might have a little more sympathy for his situation. I immediately discovered that the Assistant Attorney General had exactly the opposite idea. He tried to seat as many white jurors as possible.
In federal court the Judge questions potential jurors and the attorneys decide whether to accept a particular juror or not. If there is a good reason to reject a juror, such as if the juror is a friend of one of the attorneys or admits to some form of bias, an attorney can reject a juror for cause. If there is no good reason, an attorney can use one of a limited number of peremptory challenges, That is, the attorney can refuse a juror for no cause. In this case we were seating nine jurors (instead of the usual 12 in State court) and each of us had nine peremptory challenges.
When the first Black juror came under consideration I accepted her but the AAG tried to use a peremptory challenge. This was not at all what I wanted, and fortunately there was a rule that allowed me to challenge the AAG's use of a peremptory challenge. In Batson v. Virginia, 476 U.S. 79 (1986), the United States Supreme Court ruled that peremptory challenges may not be used to discriminate against and eliminate potential jurors on the basis of sex, race, ethnicity, or religion. Doing so violates the other party's right to Due Process of Law and Equal Protection under the Constitution of the United States. I immediately invoked Batson, asserting that the AAG could not articulate a non-discriminatory reason for excluding the juror. The Magistrate agreed, and the juror was seated. We finished seating the jury by noon on the first day, and we ended up with three Black jurors, two Hispanics, one Japanese American, and four Caucasians. I was moderately happy, although not all of my Batson challenges were effective. After three tries the AAG finally figured out what to say.
At this point, before beginning my opening statement, I knew I could not win the case. There was no evidence aside from my client's unsubstantiated word that any of the things he had alleged had actually happened, let alone with the required ill intent. Knowing that, I was in for three more days of wasted time. While I was confident that I could fool the jury into thinking I believed in my case, I knew that would not be enough. I had to make them believe in my case, and that was not possible, notwithstanding their racial and cultural affinities with my client. So just for myself I changed the parameters of a successful outcome. I would be successful if I could get at least one of the seven counts through to the jury.
At the close of the Plaintiff's case in a jury trial the defense almost always moves for a directed verdict in favor of the defense. Essentially this means that the Plaintiff has failed to make a prima facie case--that as a matter of law the Plaintiff has failed to prove one or more of the essential elements of the Plaintiff's case. The judge makes this determination rather than the jury. All parties know what the essential elements of the case are; these are included in the jury instructions decided upon before the trial begins. Here I had seven counts against nine Defendants. I was worried that none of the counts or Defendants would survive a Motion for Directed Verdict. If even one survived the jury would decide the case, not the judge, and a verdict of liability would at least be a possibility, however remote.
Against this backdrop I began my case after lunch. I made my opening statement, laying out for the jury what I expected the evidence to show. These can be tricky, because you don't want to overpromise, but it also has to be persuasive. Mine was, I fear, rather bland. The AAG, however, erred in the opposite direction. He promised, without much evidence, that he would show that the Plaintiff's case was a complete fabrication, and that none of these fine gentlemen had ever done anything wrong. I was moderately happy; I was going to be able to show that at least five of them had been disciplined for mistreating prisoners under their care. None of them had been disciplined for mistreating my client, but I could point out to the jury that they could not believe everything the AAG said. We were off to a good start.
Following opening statements my client took the stand. I walked him through each of the counts and each of the Defendants, and he told the jury what he claimed they all did. Part of the problem I had was that even if everything he said was true some of his allegations did not amount to a violation of his civil rights. A further problem I had was with the Warden, Assistant Warden, Director, and Assistant Director. All we had on them was that they had dismissed my client's appeals without proper investigation. They all had so much discretion in such a situation that it was virtually impossible to get the counts involving them through to the jury. So I used most of my time with my client on the stand focusing on the corrections officers. I completed the direct examination of my client that afternoon, and the judge adjourned until the next morning.
First thing in the morning the AAG undertook the cross examination of my client. Without ever having deposed him the AAG did not necessarily know what he would say in response to questions. This could have worked to our advantage but the AAG was an experienced litigator who knew how to get what he wanted from a witness. Once or twice he tried to go outside the areas which I had covered on direct examination, but a quick objection from me for "beyond the scope of direct" got him back on track. He seemed to focus on the counts and Defendants I was most worried about, which reinforced my concerns and demonstrated pretty clearly that we had the same view of the case.
The AAG finished with my client at about 11:00, and I began to examine each of the Defendants. I was able to use leading rather than open-ended questions with them as Defendants, which made it easier to elicit the testimony I wanted. Two or three of them tried to alter their testimony from what they said in their depositions, but I was able to use a technique called "impeachment" to get them to say what I wanted. I essentially read them their prior testimony from their depositions, asked them if they remembered it, and reminded them that they were under oath both then and now. The clear implication was that either they were lying then or they were lying now. It did not go unnoticed by the jury, or also by the judge as it turned out.
Since there were nine Defendants I did not get through them all that day. I finished with the last one on the morning of the third day and rested my case before noon. The AAG this time did not disappoint, and outside the presence of the jury he filed his Motion for Directed Verdict as to all Defendants and all counts. We argued the motion heatedly and at length, and the judge took the matter under advisement, promising a ruling after lunch. He apparently used at least some of the time to do some quick legal research, because after lunch he presented us with a written order granting the Motion in part and denying it in part. The Defendants and the counts I was most worried about were dismissed from the case but the correctional officers and the counts pertaining to them would stay in and go to the jury. I had made my prima facie case.
The AAG put on his case with the remaining Defendants during the afternoon of the third day. He recalled the five correctional officers and asked them questions outside the scope of what I had asked them previously. My cross examinations were brief, and mostly reiterated points I had made earlier. We finished with the witnesses by the close of business. The next day we would make our Closing Arguments, the judge would instruct the jury, and the jury would deliberate.
I like to structure my Closing Argument around the jury instructions. After some general statements I say something like, "The judge is going to instruct you that . . . " and then I would read one of the jury instructions verbatim. Sometimes I would even have the instructions printed out and blown up for the jury to see. I then explained how the evidence supports the view I want them to take. It's probably silly but I take the view that telling them what the jury instructions are going to be and then to be proven right when the judge reads them the exact same instructions bolsters my credibility. Since the Plaintiff goes first in Closing Argument I get to explain how I've met the burden of proof (in civil cases, proof that something is likely more true than not) before the defense tries to tell them I have not met that burden. Additionally, Plaintiff gets a rebuttal argument after the defense finishes its argument. Plaintiff thus gets the first shot at the jury and the last shot at the jury. This is to make up for the tremendous disadvantage the Plaintiff is under having to carry the burden.
We finished Closing Arguments at about 10:30, the judge instructed the jury, and the jury retired to deliberate at about 11:00. I expected them back with a verdict before noon, but they sent word to the judge that they wanted more time. Even though I knew better this got me excited; the longer they stayed out the greater the possibility for a Plaintiff's verdict. After lunch they stayed out for another hour and then came in with a verdict for Defendants. Turns out they just wanted to get a free lunch. I asked the judge to poll the jury, and all nine (even the three Black jurors) reported that they voted for the defense. The judge then did something almost unprecedented in my experience: he publicly praised me in front of the jury, telling them that they had been privileged to see an attorney in action who really knew what he was doing. My client was unimpressed, though, and I thought I detected a smirk on the face of the AAG. I guess it depends on your point of view.
After the jury was dismissed, the judge surprised me again. He could not pay any of my fees for a case I was appointed to, but he would agree to pay all of my expenses, not just the first $2,000.00. This was a pretty big deal for my firm, since I had spent over $6,000.00 preparing the case.
I never tried another case before this judge, and I never saw my client again. As far as I know he's still serving his sentence. I did come up against the AAG again, though, when our firm sued the State of Illinois for breach of contract. You can find the story of that case, as well as seven other cases of mine that I find particularly memorable, in my legal memoir, For Three Weeks I Owned the University of Illinois, available on Amazon.com.
