Senior city attorney resigns after judge rules he concealed evidence in fatal police shooting

Jason Meisner and Stacy St. ClairContact ReportersChicago Tribune

A top city attorney resigned hours after a federal judge ruled Monday that he intentionally concealed crucial evidence in a trial over a fatal Chicago policeshooting and then lied about his reasons for doing so.

The attorney, Senior Corporation Counsel Jordan Marsh, submitted his resignation Monday, sources said. A second attorney from Mayor Rahm Emanuel’s administration cited for negligence in the ruling resigned his position in August.

“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,” Law Department spokesman Bill McCaffrey said in a statement. “The conduct outlined by the court in today’s decision is unacceptable.”

In overturning the jury's verdict and ordering a new trial, U.S. District Judge Edmond Chang imposed sanctions against the city and Senior Corporation Counsel Jordan Marsh, ordering that they pay attorney's fees to the plaintiffs that likely will amount to hundreds of thousands of dollars even before a retrial could 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.

Steve Greenberg, an attorney who represents the family of the man who was killed, said the ruling raises questions about the Law Department's role in perpetuating a code-of-silence police culture in which officers believe they can act with impunity. If the city's attorneys appear willing to cover up wrongdoing, the officers will feel empowered to behave in any manner they deem fit, he said.

"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."

Thomas Leinenweber, an attorney who represents Marsh, did not immediately respond to an email or phone call seeking comment.

The city said when the conduct first came to light several months ago that the department began taking steps to make sure it would not be repeated. Those changes include a review of evidence-gathering procedures, additional training for attorneys and paralegals, and aiding the Chicago Police Department and the Office of Emergency Management and Communications to improve processes for requesting and preserving records.

However, the city continued to downplay the error in court documents as recently as November. And Marsh testified in a deposition that he had not been disciplined for the incident.

The embarrassing setback for the city comes amid continuing fallout over the unrelated police shooting of 17-year-oldLaquan McDonald in October 2014. The scandal that erupted in November after video was released showing Officer Jason Van Dyke shooting McDonald 16 times prompted the U.S. Justice Department to launch a wide-ranging civil rights investigation into the use of force by Chicago police.

Chang's ruling reverses a decision last April in which a federal jury found in favor of Officers Raoul Mosqueda and Gildardo Sierra, concluding they were justified in killing Darius 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 an earlier shooting.

In a front-page story 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 he had actually found out about it 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 backpedaled more, 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, a seasoned attorney who for years has defended police accused of wrongdoing, "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. "... That an experienced lawyer like Marsh did not even consider the possibility that this evidence might not go his way is unlikely to the extreme."

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. Aumann resigned from the department in August, the city revealed on Monday for the first time.

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.

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 city lawyers "have a tough job" in responding to discovery requests involving a Police Department that preserves such a massive 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.

jmeisner@tribpub.com

sstclair@tribpub.com

Twitter @jmetr22b