By Jason Meisner and Stacy St. Clair and David Heinzmann
A veteran attorney in Mayor Rahm Emanuel's administration resigned hours after a federal judge ruled Monday that he intentionally concealed crucial evidence in a trial over a fatal Chicago police shooting and then lied about his reasons for doing so.
The abrupt departure of Senior Corporation Counsel Jordan Marsh, who has worked for the city since 1997, was the latest black eye for the mayor's office in the continuing fallout over the city's handling of police shootings.
In overturning the jury's verdict in a lawsuit brought by the family of Darius Pinex, U.S. District Judge Edmond Chang imposed sanctions against the city and Marsh, ordering that they pay attorney's fees to plaintiffs that likely will amount to hundreds of thousands of dollars even before a retrial can take place.
"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," Chang wrote in his 72-page opinion. "They need to know it is not worth it."
Chang faulted lax training and oversight at the city's Law Department for hampering the production of records from the Chicago Police Department and other city agencies when officers are accused of misconduct.
Corporation Counsel Stephen Patton said Monday night that the city would "double down" on its efforts to properly train lawyers to produce records. He rejected the notion that recent sanctions pointed to systemic problems in his office.
"To say this is a practice, a systemic abuse or part of a cover-up, there's just no evidence of that," Patton said. "There's nothing in the ruling to support it."
The ruling comes at a time when the Emanuel administration is reeling from disclosures about the city's troubled oversight of its Police Department. A Justice Department investigation of police misconduct has begun in the wake of the November release of a video showing Officer Jason Van Dyke shooting Laquan McDonald 16 times in 2014. The subsequent release of police reports showed that officers' written accounts of the shooting differed starkly from what the video shows.
While most of the recent scrutiny has focused on actions within the Police Department, Chang's ruling levels accusations of misconduct at the mayor's legal staff. It is the second time in less than a year that Chang has sanctioned city lawyers for withholding evidence in separate police misconduct lawsuits.
Steve Greenberg, an attorney who represents Pinex's family, said the ruling raises questions about the Law Department's role in perpetuating a police culture in which officers believe they can act with impunity.
"There's just a total disregard for the truth, and it runs to the highest levels," Greenberg said. "There is a culture to cover up and win at all costs."
In acknowledging Marsh's departure, city officials said the conduct outlined by Chang was "inexcusable."
"The Law Department holds its employees to the absolute highest professional and ethical standards and does not tolerate any action that would call into question the integrity of the lawyers who serve and represent the City of Chicago," spokesman Bill McCaffrey said in a statement.
McCaffrey said that when the conduct first came to light several months ago, the department began taking policy and training steps to make sure it would not be repeated. However, the city continued to downplay the error in court documents as recently as November, and Marsh testified in a deposition last July that he had not been disciplined for the incident. The city has spent $460,000 on outside lawyers since the issue arose.
The ruling may bring Marsh's conduct to the attention of the Illinois Attorney Registration and Disciplinary Commission, which disciplines wayward lawyers.
"If a federal judge goes to the point of criticizing a lawyer's conduct, we pay attention to it," James Grogan, the commission's chief counsel, said Monday.
Thomas Leinenweber, an attorney who represents Marsh, did not respond to an email or phone call seeking comment.
Chang's ruling Monday reverses a decision last March in which a federal jury found in favor of Officers Raoul Mosqueda and Gildardo Sierra, concluding they were justified in killing Pinex during a January 2011 traffic stop on Chicago's South Side. Both officers testified at the trial that they had pulled Pinex's Oldsmobile over because it matched a description they had heard over their police radios of a car wanted in connection with an earlier shooting.
In September, the Tribune detailed how the officers' account of what precipitated their encounter with Pinex had begun to unravel in the midst of the trial.
According to court records, Sierra and Mosqueda did not hear the dispatch as they originally claimed because it aired over a different radio zone. It wasn't until the middle of the trial that Marsh admitted -- outside the presence of the jury -- that he had failed to turn over a recording of the dispatch that actually went out over the officers' Zone 6 radios that night, a call that talked about a different Oldsmobile Aurora that didn't match Pinex's car and was not wanted in connection with a shooting.
Marsh first said he had learned about the recording that day, then later said it had been the week before trial. When the judge pressed Marsh on why he hadn't disclosed the existence of the recording as soon as he learned of it from a police sergeant, the lawyer again backpedaled, saying it hadn't crossed his mind that it would be something that might be helpful to the plaintiffs.
"My thought process was, I want to see what is on that (recording)," he said. "You know in retrospect I think I should have, but I wanted to talk to the sergeant and to see whether it was even relevant."
In his ruling, Chang said Marsh "intentionally concealed" the existence of the emergency dispatch and then misled the court about his thought process for withholding it.
"After hiding the information, despite there being numerous times when the circumstances dictated he say something about it, Marsh said nothing, and even made misleading statements to the court when the issue arose," Chang wrote.
The judge also found that Marsh's co-counsel, city attorney Thomas Aumann, had failed to make a reasonable effort to find the dispatch recording during the initial discovery process. In sanctioning the city for Aumann's actions, Chang said the Law Department's practices put its attorneys "at risk" for violating discovery rules because of a lack of training on how to request and collect documents and evidence.
Aumann, who left the office in August, did not immediately return a call seeking comment.
Chang's ruling marks the second time in seven months that the judge has sanctioned the Law Department for withholding records in a police misconduct lawsuit and ordered a new trial.
In the other case, Jonathan Hadnott had accused police of an illegal arrest and search of his mother's home. The city argued that Hadnott's claim was impossible, contending there simply wasn't enough time for them to stop Hadnott, run his name through the law enforcement database, search the house and be back at the station at the time shown in the records. It could take up to 20 minutes to put a suspect's name through the database, city attorneys had argued.
After Hadnott's case ended in a partially hung jury, his lawyers began preparing for a retrial. That's when city attorneys suddenly turned over evidence that seemed to upend their argument: Police records showed it hadn't taken 20 minutes to run Hadnott's name after all but just about a minute.
Chang sanctioned the city, ordering it to pay $350,000 in Hadnott's legal fees. The city settled the case before trial for $200,000, but the City Council has not yet approved the deal.
"It's not a coincidence that there are two (discovery violations) in less than a year," said Hadnott's attorney, Irene Dymkar. "The corporation counsel believes it has to support the police whether the police are right or wrong. But if you work for the city, you have an obligation to the public to look at things objectively. You have to protect the truth."
Critics said the Hadnott and Pinex cases aren't isolated incidents.
"This has been a long-standing problem that is just now getting recognition," said Jon Loevy, whose firm is involved in the Pinex case. "The city has been put on notice that it has to do a better job and play fair."
Loevy recently won a $2.75 million wrongful death claim against Chicago police in a case that included several court orders for the city to turn over evidence.
In his ruling, Chang said the city's attorneys showed a lack of understanding about what evidence is preserved by police and how to ask for it -- including detectives' reports, emergency recordings, computer logs and inventories from arrests.
The judge said that with tight budgets and overworked staff, he understands that city lawyers "have a tough job" in responding to discovery requests involving a Police Department that preserves such a huge quantity of records. But that's all the more reason to instill procedures to minimize mistakes, he said.
"Failing to do so will cost even more in the long run, not just in dollars," the judge wrote.
The Tribune has previously reported that Sierra was involved in two other on-duty shootings within months of Pinex's killing. In one shooting an unarmed man died after Sierra, mistaking a cellphone for a gun, fired 16 shots at him, including three into his back as he lay prone on the ground.
After the details of that shooting were revealed in a 2011 Tribune report, Sierra was stripped of his police powers and criminal investigations were launched by the Cook County state's attorney's office and federal authorities, but no charges have ever been filed. Sierra resigned from the department last year, while the city settled a lawsuit brought by the family of the victim, Flint Farmer, for $4.1 million.
In the Pinex shooting, both Sierra and Mosqueda repeatedly claimed that the emergency dispatch about a previous shooting led them to conduct a "high-risk" traffic stop on Pinex's vehicle, blinding the driver with the spotlight on their marked squad car before eventually boxing the car in from the front and exiting with guns drawn.
The stop turned deadly when Pinex, the officers alleged, refused orders and gunned his car in reverse, throwing his passenger, Matthew Colyer, from the car and nearly running over Mosqueda. Sierra fired at least eight shots at the vehicle as it backed into a light pole. Mosqueda then fired multiple times from the passenger side, fatally striking Pinex in the head, court records show. A loaded pistol was later found underneath the driver's seat.
Lawyers for Colyer and Pinex's family argued in their motion for a new trial that Sierra and Mosqueda had perjured themselves on the stand when they testified to hearing the call about a car wanted in a shooting.
In his ruling Monday, Chang said that while he found the inconsistencies between their statements and the evidence "troubling," they did not "conclusively prove perjury."
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