Andersen v. City of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

DANIEL ANDERSEN,

)

)

Plaintiff,

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No. 16 C 1963

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v.

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Judge Virginia M. Kendall

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THE CITY OF CHICAGO, et al.,

)

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Defendants.

)

)

MEMORANDUM OPINION AND ORDER

Plaintiff Daniel Andersen was convicted of the murder and attempted rape of

Cathy Trunko and spent over twenty-five years in prison. In 2015, Andersen’s

conviction was reversed, and he received a Certificate of Innocence. Andersen

proceeded to sue the City of Chicago and various members of Chicago law

enforcement involved in the case. (Dkt. 1). Andersen alleges violations of his

constitutional rights, pursuant to 42. U.S.C. § 1983, and several state-law claims.

The Court assumes familiarity with the facts of this case, as the Court recently

provided a detailed background in Andersen v. City of Chicago, No. 16 C 1963, 2019

WL 6327226 (N.D. Ill. Nov. 26, 2019). In summary, in January 1980, Trunko died

after being stabbed. A few days after her death, Chicago Police recovered a knife near

the scene that they believed to be the murder weapon. In the week following Trunko’s

death, Andersen was arrested on a disorderly conduct charge and was questioned

about Trunko. Andersen eventually confessed to killing Trunko—a confession that

he says was coerced. Andersen proceeded to a jury trial, where he was convicted of

the murder and attempted rape of Trunko. Andersen remained in custody from the

time of his arrest in 1980 through trial, and up until his release from prison in April

2007. In August 2015, Andersen’s conviction was reversed, and in December 2015,

he was granted a Certificate of Innocence by the Circuit Court of Cook County.

Defendants have moved to bar the testimony of Richard Brzeczek, one of

Andersen’s police-practices experts. (Dkt. 389). The Court held a hearing on the

motion on January 9, 2020. (Dkt. 464). For the following reasons, the motion is

granted.

LEGAL STANDARD

“The admissibility of expert testimony is governed by Federal Rule of Evidence

702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th

Cir. 2009). Trial judges act as gatekeepers to screen expert evidence for relevance

and reliability. Daubert, 509 U.S. at 589; see also C.W. ex rel. Wood v. Textron, Inc.,

807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702, a “witness who is qualified as an

expert by knowledge, skill, experience, training, or education may testify in the form

of an opinion” if the following conditions are satisfied:

(a) the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

Fed. R. Evid. 702. In other words, “the key to the gate is not the ultimate correctness

of the expert’s conclusions. . . , it is the soundness and care with which the expert

arrived at her opinion.” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th

Cir. 2013). In evaluating the expert’s proposed testimony, the Court should

“scrutinize proposed expert witness testimony to determine if it has the same level of

intellectual rigor that characterizes the practice of an expert in the relevant field so

as to be deemed reliable enough to present to a jury.” Lapsley v. Xtek, Inc., 689 F.3d

802, 805 (7th Cir. 2012) (internal quotation marks omitted).

The Court utilizes a three-part analysis when applying the Daubert framework

to proposed Rule 702 evidence. The Court determines (1) “whether the witness is

qualified”; (2) “whether the expert’s methodology is scientifically reliable”; and (3)

“whether the testimony will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Myers v. Illinois Cent. R. Co., 629 F.3d 639, 644 (7th Cir.

2010) (internal quotation marks omitted); see also Gopalratnam v. Hewlett-Packard

Co., 877 F.3d 771, 779 (7th Cir. 2017). The expert’s proponent bears the burden of

demonstrating that the testimony would satisfy the Daubert standard by a

preponderance of the evidence. See Gopalratnam, 877 F.3d at 782; see also Fed. R.

Evid. 702 advisory committee’s note to 2000 amendment.

DISCUSSION

Andersen retained Brzeczek to opine on the propriety of certain actions taken

by law enforcement in Andersen’s criminal case. Brzeczek opines that certain

documentation failures “raise serious concern about the integrity of the investigation

and the reporting of investigative activity by the detectives.” (Dkt. 389-1 at 4). He

points to several failures related to the investigation of a possible alternative suspect,

Robert LaGace. Brzeczek notes that the detectives failed to report why they regarded

LaGace as a suspect, why they took him for a polygraph, and whether they conducted

any additional investigation into him. (Id. at 4–7).

The Court notes serious issues with the reliability and relevance of Brzeczek’s

opinions, described herein, and excludes his testimony on these bases.

Brzeczek spent approximately two decades as a member of the Chicago Police

Department (“CPD”). His positions ranged from Police Officer, to Sergeant, all the

way up to Superintendent. (Dkt. 389-3 at 1). He left CPD in 1983 and worked as a

lawyer through 2016. (Id.). Since leaving CPD, he has also been the president of a

consulting firm providing services in the field of “police administration and

procedures, investigating police misconduct, police leadership, and Code of Silence

issues.” (Id. at 1–2). He has also lectured at a number of institutions on similar

topics. (Id. at 3).

Defendants demand that Brzeczek have experience documenting taking a

suspect for a polygraph. That is too narrow—his opinions go generally to

documenting an investigation.1 Defendants also point to the fact that Brzeczek

1 Defendants’ preoccupation with the polygraph aspect of Brzeczek’s testimony throughout their

motion is misguided. As this Court described in its summary judgment opinion and in its opinion

regarding the admissibility of Andersen’s other police practices expert, Dennis Waller (Dkt. 650 at 17),

the detectives’ failure to record and report the source of information about LaGace and the fact that

LaGace was polygraphed could support a Brady claim. Andersen, No. 16 C 1963, 2019 WL 6327226,

at *7–9. As such, testimony about this documentation failure could be relevant to Andersen’s Brady

claim.

himself was never a detective. In response, Andersen states that, while at CPD,

Brzeczek was an author of the Criminal Investigation Division Standard Operating

Procedures Manual, which “contained multiple chapters specifically directed toward

detectives’ conduct and behavior in connection with their duties and investigative

responsibilities.” (Dkt. 414-1 at 126:3–126:9). He also, at one point in his career,

supervised dozens of detectives. (Id. at 51:7–51:13). The Court concludes that his

experience with protocols for detectives and supervision of detectives are enough to

qualify him to opine on appropriate documentation standards for detectives. See

Trustees of Chicago Painters & Decorators Pension, Health & Welfare, & Deferred

Sav. Plan Tr. Funds v. Royal Int’l Drywall & Decorating, Inc., 493 F.3d 782, 787 (7th

Cir. 2007) (“This court has recognized that while extensive academic and practical

expertise in an area is certainly sufficient to qualify a potential witness as an expert,

Rule 702 specifically contemplates the admission of testimony by experts whose

knowledge is based on experience.” (internal quotation marks omitted)).

Qualification, however, is only one step of the inquiry. The next part of the

inquiry is whether Brzeczek’s methodology is reliable. In his report, Brzeczek reviews

the facts of the underlying criminal case and then describes the concerns he has with

how the detectives proceeded. In theory, such a method can be reliable. See Jimenez

v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013) (noting that it was appropriate

for police-practices expert to “describe[e] sound professional standards and identify[]

departures from them” (internal quotation marks omitted)). Here, however, it is not.

Brzeczek stated in his report that his opinions were based on his “experience

and knowledge in the field of police practices and [his] specific knowledge of the CPD

during the relevant time period.” (Dkt. 389-1 at 6). But an expert who is relying on

experience, such as Brzeczek, must connect his experience to the opinions he offers.

See Manpower, Inc. v. Ins. Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir. 2013)

(“The critical inquiry is whether there is a connection between the data employed and

the opinion offered. . . .”); Potts v. Manos, No. 11 C 3952, 2017 WL 4365948, at *5

(N.D. Ill. Sept. 29, 2017) (“A witness who offers expert testimony based on his

experience must connect his experience to the facts of the case in order to meet the

standard for reliability under Daubert and the Federal Rules of Evidence.”).

Brzeczek, however, has failed to explain how his experience “leads to the conclusion

reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.” Fed. R. Evid. 702 advisory committee’s

note to 2000 amendment. Alternatively, Brzeczek could have cited to some materials

that would support his conclusions. See Bielskis v. Louisville Ladder, Inc., 663 F.3d

887, 894 (7th Cir. 2011) (noting that publication of a theory and its acceptance within

the relevant community are factors to be considered under Daubert.). But he does

not cite a single source in his report. And although he pointed to some corroborative

sources in his deposition and hearing testimony (see, e.g., Dkt. 389-2 at 203:23–

206:22; Dkt. 414-4 at 22:23–26:19; Dkt. 464 at 30:2–31:16), these were CPD-specific

and very high-level, he described them in only the most general terms, and he did not

elaborate on whether they constituted “sound professional standards.”2 Jimenez, 732

F.3d at 721 (internal quotation marks omitted). Further, in his deposition, he

disclaimed reviewing any authoritative text or CPD regulations in forming his

opinions. (Dkt. 389-2 at 89:17–90:17).

Brzeczek essentially asks this Court, and any factfinder, to take him at his

word that his opinions are correct, without supporting them. This is not a reliable

methodology. See Manpower, 732 F.3d at 806 (noting that “it is the opinion connected

to existing data only by the ipse dixit of the expert that is properly excluded under

Rule 702” (internal quotation marks and citations omitted)); Zenith Elecs. Corp. v.

WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005) (“A witness who invokes ‘my

expertise’ rather than analytic strategies widely used by specialists is not an expert

as Rule 702 defines that term.”). Instead, it is more akin to accepting Brzeczek’s

“subjective beliefs” on the matter, which is not permissible. Metavante Corp. v.

Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010); see also United States v. Noel,

581 F.3d 490, 497 (7th Cir. 2009) (noting that, regardless of whether a witness is an

expert, they cannot tell the jury what conclusion to reach just “because I said so”).

Finally, there is relevance. Expert testimony in police practices can be helpful

to the jury in many situations. See United States v. Brown, 871 F.3d 532, 537 (7th

Cir. 2017) (“For example, if it’s standard practice across the country to train officers

to handle a given situation in a particular way, expert testimony about that training

2 At the hearing, Andersen’s counsel attempted to correct this, asking Brzeczek whether CPD’s policies

were consistent with nationally accepted standards. (Dkt. 464 at 145:21–146:3). While Brzeczek

answered in the affirmative, neither counsel nor Brzeczek provided any support for this. Nor is it clear

that Brzeczek is qualified to testify to national standards—his expertise is CPD-centric.

might aid a jury tasked with evaluating the conduct of an officer in that specific

situation.”); Jimenez, 732 F.3d at 721 (“In constitutional tort cases, expert testimony

regarding sound professional standards governing a defendant’s actions can be

relevant and helpful.”). That being said, “[e]vidence of purely localized police

procedure is less likely to be helpful than nationally or widely used policy.” Brown,

871 F.3d at 538.

Even if Brzeczek’s methodology were reliable, his testimony does not meet the

relevance requirement. Brzeczek testified only to local CPD practices. He did not

discuss nationally or even regionally accepted standards, nor did he compare CPD’s

standards to more broadly accepted standards. (See, e.g., Dkt. 464 at 69:1–69:23

(Brzeczek noting that his testimony was confined to the practices of CPD)). Without

more, the Court does not know whether the standards Brzeczek testified to are “sound

professional standards,” making their relevance far more questionable. Jimenez, 732

F.3d at 721. It is not clear how it would aid the jury to know that the detectives here

may not have followed CPD protocol if the jury is not told how that protocol compared

with generally accepted police practices. See, e.g., Wells v. City of Chicago, No. 09 C

1198, 2012 WL 116040, at *12 (N.D. Ill. Jan. 16, 2012) (“Waller is not using his

expertise or knowledge to assess the adequacy of the policy adopted by the City or

compare it with standard practices. Rather, he has done nothing more than cite

evidence in the record that he contends reflects the policy was not followed. The jury

is equally qualified to make this determination, and Waller’s opinion would provide

them with no meaningful assistance.”).

The Court additionally notes that Brzeczek’s opinions are cumulative to those

of Dennis Waller, Andersen’s other police practices expert. The Court has ruled that

Waller will be permitted to opine on documentation failures, including those related

to LaGace. (See Dkt. 650). Unlike Brzeczek, Waller supports his conclusions with

published and nationally accepted standards for police writing. Ud.). That Brzeczek’s

testimony would be cumulative is an additional basis for excluding it. Fed. R. Evid.

403 (“The court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of. . . needlessly presenting cumulative evidence.”). The

Court is additionally concerned that a jury would give Brzeczek’s opinions more

weight than they are due because he was the Superintendent at the time of Trunko’s

death and would have an aura of authority. See Brown, 871 F.3d at 539 (“And as the

district judge concluded, the admission of Farrell’s testimony may have induced the

jurors to defer to his conclusion rather than drawing their own.”).

For the foregoing reasons, Defendants’ motion to exclude Brzeczek’s testimony

is granted. (Dkt. 389).

7 a

Lb log a M. Kéndall

United States District Judge

Date: April 14, 2020

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