(This column originally ran in the Chicago Daily Law Bulletin in August, 2013)
Terrance Thompson was a heroin addict in Chicago prone to arrests and brief (one to two day) stays in jail until he ran into members of the Chicago Police Department's notorious Special Operations Sections (known as "SOS") in the fall of 2002. That encounter resulted in this non-violent drug possessor going to prison for several years for a gun that he contended was planted on him by members of the Special Operations Section, in retaliation for his refusal to be their snitch.
Thompson's stay in prison ended in January of 2007 when the untoward doings of the SOS section became part of both the public record and court records. The "victim" listed in the police reports tied to Thompson's arrest was Jerome Finnigan, the infamous police officer that was sentenced to 12 years in federal prison in 2011 for, among other things, attempting to kill another police officer to cover up the misconduct of the SOS section.
When Thompson go out, he sued the three arresting SOS officers, Carl Suchocki, Tim McDermott, and John Burzinski for multiple Brady violations and malicious prosecution. Brady violations is short hand for the U.S. Supreme Court requirement that police and prosecutors turn over all potentially exculpatory evidence to criminal defendants, including evidence that may tend to case doubt on the credibility of the arresting and/or testifying police officers. Eventually the civil case went to trial, and Thompson won only as against Suchocki, only on one claim and received only $15,000 in damages for his time in jail. His attorneys had their statutory fees reduced by 70 percent.
In Terrance Thompson v. Chicago, no. 10-2951, the Seventh Circuit reversed the case in total and remanded for a new trial agreeing with the Plaintiff that multiple evidentiary errors were made by District Court Judge Ronald Guzman. The larger import of Judge Diane Sykes' opinion was the clear implication that for certain types of Section 1983 claims what the district courts have classified as 404(b) evidence of past police misconduct is actually direct evidence of those officers' failure to provide Brady material.
The trial judge excluded the guilty pleas of multiple members of the SOS section, excluded the indictment of Suchocki, and excluded four civilian witnesses from testifying about their experiences of dealing with the misconduct of Suchocki, McDermott and Burzinski. The trial court did allow two civilian witnesses testify about their previous contact with Suchocki--notably the only defendant the jury found against. The trial judge, using a 404(b) framework and a Rule 403 analysis, reasoned that the evidence was more prejudicial than probative because it would result in a separate "mini-trial". This ruling was an abuse of discretion according to the Seventh Circuit panel that consisted of Sykes and Judges Michael Kanne and David Hamilton.
Although the issue of whether these civilian witnesses could testify about their previous encounters with the Defendants and the Defendants' other bad acts was analyzed by the district court and even the appellate court within the confines of Federal Rules of Evidence Rule 404(b), Judge Sykes, writing for the panel, implied that the prior misconduct of the officers was actually much more than mere 404(b) evidence.
"The pattern of misconduct within the SOS is the very impeachment evidence that the officers were alleged to have withheld in violation of the basic due-process disclosure duty under Brady," wrote Judge Sykes, italicizing the "is" in the written opinion. In other words, when allegations of prior misconduct are not disclosed in the criminal proceeding that is a Brady violation, and the substance of those allegations may be directly relevant to prove an element of a civil Brady claim--that the allegations were impeaching, and therefore material and should have been disclosed. "Understood in this light," wrote Judge Sykes, "the testimony of the excluded witnesses was quite probative...This evidence tends to prove that the Defendants were aware of and participated in abuses of power by the SOS at the relevant time." In addition, according to Sykes those acts of police misconduct that occurred after the arrest and trial of Thompson were very probative because it "is powerful circumstantial evidence that [the defendants] were involved in a pattern of abuse of power by SOS officers dating back to Thompson's arrest in 2002 and trial in 2003."
Thompson's civil case and appeal have been pursued by the civil rights firm that has been at the forefront of SOS civil litigation--Smith, Johnson & Antholt, LLC. The case was argued by Amanda Antholt for Thompson and Suzanne Loose for the City of Chicago.