McHenry County Blog

A press release from Northern Illinois Federal District Court Chief Judge James F. Holderman:

DISTRICT JUDGES SELECT IAIN DAVID JOHNSTON TO SERVE AS MAGISTRATE JUDGE IN WESTERN DIVISION

ROCKFORD- Chief Judge James F. Holderman today announced that attorney Iain David Johnston, has been selected by the district judges of the Northern District of Illinois to fill the judicial vacancy created when U.S. Magistrate Judge P. Michael Mahoney retired on December 31, 2012, after thirtysix years of service with the court.

Chief Judge James F. Holderman stated:

“Iain Johnston is an excellent lawyer who has proven himself to be outstanding in many areas of the profession, including as a trial and appellate lawyer in the federal courts.

“I am sure he will be well-received by the bar and the community as he takes over as our district’s U.S. magistrate judge headquartered in Rockford.”

Chief Judge Holderman continued by noting “the reason we have an outstanding magistrate judge bench here in northern Illinois is the hard work of the dedicated and discerning members of our U.S. Magistrate Judge Selection Panels. I thank them for their service to the court.”

The district’s Western Division U.S. Magistrate Judge Merit Selection Panel, comprised of both attorneys and non-attorneys, was chaired by the Honorable Val Gunnarsson, Chief Judge of the 15th Judicial Circuit in Carroll County, Illinois. The other members were Deputy Chair Herbert H. Franks, Sara M. Cliffe, Earl Dotson Jr., Mike Dunn, Patricia Fong, Thomas Laughlin, Glenn Schorsch, and Linda M. Zuba.

U.S. Magistrate Judge Designate Iain Johnston graduated cum laude from Rockford College in 1987.

Three years later, he graduated cum laude from The John Marshall Law School, where he currently serves as an adjunct professor.

After law school, Mr. Johnston was a judicial law clerk for Judge Philip Reinhard of the Illinois Appellate Court, Second District, and the U.S. District Court for the Northern District of Illinois. Mr. Johnston then became an Assistant Attorney General, rising to the position of Unit Supervisor of the Civil Prosecutions Unit.

Thereafter, he joined Altheimer & Gray, where he became a partner in 2002.

From 2003 to 2008, Mr. Johnston was a Senior Counsel at Holland & Knight.

Mr. Johnston is a founding member of the law firm Johnston Greene LLC, where he has focused on a wide array of government and commercial matters since 2008.

As a Special Assistant Attorney General, he has represented the Illinois Division of Insurance and the Illinois State Police. Mr. Johnston has also served as an administrative law judge for the Division of Insurance, the Illinois State Police, and the Illinois Drycleaners Environmental Response Trust Fund Council.

Mr. Johnston is expected to assume the bench in late spring and will be headquartered in the Stanley J. Roszkowski U.S. Courthouse in Rockford.

He will work with U.S. District Judge Frederick J. Kapala and Senior U.S. District Judge Philip G. Reinhard.

Retired Magistrate Judge Mahoney has also agreed to continue to work on a recalled basis as needed.

“The magistrate judge assigned to the Western Division of the Northern District of Illinois is historically one of the busiest magistrate judges in the country,” stated Chief Judge Holderman.

Chief Judge Holderman continued, noting, “Retired Magistrate Judge Mahoney served the people of the Northern District of Illinois with great distinction for more than three and a half decades.

“I am sure that Iain Johnston is up to the task of providing that same great service.

“On behalf of the all judges of our court, I welcome Iain Johnston to the magistrate judge bench of the U.S. District Court for the Northern District of Illinois and thank Magistrate Judge Mahoney for his many years of service and for his continuing commitment to the court and the people of the Northern District of Illinois.”

For those into seeing the reasons that Federal Bureau of Investigation Special Agent Wesley Tagtmeyer swore out a complaint against Gregory Pyle before Magistrate P. Michael Mahoney, you’ll find it below.  If you would like to read other McHenry County Blog articles about McHenry County Sheriff’s Department Sgt. Pyle, you can find them here.

Stating that Sheriff’s Department defendants in Zane Seipler’s wrongful termination case have not provided “legitimate discovery responses” and have “twice violated this Court’s protective order,” Seipler attorney Blake Horwitz asked Federal Magistrate P. Michael Mahoney in Rockford that,

“This improper conduct before this Federal Court…cease.”

The pleading points out that defendants in deposition have denied that racial profiling has occurred in the McHenry County Sheriff’s Department, but now “defendants are investigating fifty-one deputies for racial profiling and have admitted that they failed to tender data covering 5,000 traffic stops covering a two year period.”

A footnote says that the internal probe began January 14, 2011.

The motion points out that Horwitz has spent over 150 hours looking at ”faulty” data provided by the Sheriff’s Department over a year ago, but now defendants refuse to reproduce defendants for depositions on the newly-released data.

“Perhaps defendants though they could get away with non-disclosure of the vital information; however this scheme unfolded when plaintiff requested the source data from which the racial profiling date was originally ascertained,” Horwitz continues.

“The new data reveals 5,000 arrests never before tendered—clearly indicating that the initial disclosures were a sham.”

A footnote says that Horwitz is not blaming opposing attorney James Sotos, “but believes counsel’s client in fact has intended this result.”

For not releasing all the data in a timely fashion, Horwitz seeks to have the Sheriff’s Department “pay reasonable expenses.”

Two instances of violating the Court’s protective order are listed:

• “the release of police records concerning the plaintiff”
• “the deposition of Deputy Millman was released to a local McHenry County newspaper, the Northwest Herald.”

The description of the more recent alleged violation follows:

“In the article, the newspaper editor went into extreme detail as to the allegations of Deputy Milliman, ultimately ridiculing him and comparing him to a character on Sesame Street who generates delusional accusations.”

The motion “requests that his Court enter an Order for a Rule to Show Cause requesting why defendants should not be held in contempt for their repeat failure to comply with this Court’s Protective Order…(and) order sanctions against defendants…”

Christmas Eve, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday, Part 6 Wednesday, Part 7 Thursday, Part 8 Friday and Part 9 Saturday.

January 2nd brings us to the last installment, Part 10. Whether or not to seal McHenry County Sheriff’s Deputy Scott Milliman’s deposition is the main topic.

MR. HORWITZ: Judge, the motion that I filed, I sent it to you with a footnote. The question is is that under seal, the motion that I submitted to you, the motion for extension of time.

THE COURT: The motion that you — the hard copy of a motion that you send to me never makes the court file. You have to CMF file.

MR. HORWITZ: I understand. I know that. I sent it to you for purposes of I was coming in right now and you saying –

THE COURT: Nothing you send to me ever reaches the court file. So, you don’t have to put anything under seal that you send me.

MR. HORWITZ: What I meant to say is I have not filed that motion because there’s issues in the motion that are sensitive. And so, I ask the question is that –

THE COURT: It sounds sensitive to me.

MR. HORWITZ: So, the question is whether or not that should be publicly disclosed information because people have a right to know, in my humble opinion, or whether or not that should be filed under seal. So, I’m here to ask you that question right now so I don’t violate any order.

THE COURT: I haven’t entered one yet.

MR. HORWITZ: Okay.

MR. SOTOS: We think the document should be under seal, Judge.

THE COURT: Boy, I tend to think the same thing, but I’m not sure the Seventh Circuit does.

MR. SOTOS: Well, these are some really –

MR. HORWITZ: Do you want to brief that issue?

MR. SOTOS: This stuff is coming up in the context of a lawsuit. Discovery is not public. These allegations are so far out there and potentially so damaging that we think it’s extraordinary enough that it should be kept under seal and that this shouldn’t turn into a big public brouhaha based on one person’s –

THE COURT: Do you want it under seal, too, or do you want it not under seal?

MR. HORWITZ: No. I think the public has a right to know.

THE COURT: I understand. You give me seven days to submit cases to me that says it should be under seal. You have the same seven days to submit cases that indicates that it shouldn’t be under seal.

MR. SOTOS: That’s fine, Judge.

THE COURT: They’re the same cases we all read in the Seventh Circuit, but I’ll want to take a look at them again.

You give whatever twist you think is appropriate for under seal, and you give yours. When do you want to come back here?

MR. HORWITZ: Whenever you like, Judge.

THE COURT: Well, I’m thinking late January. Do you want a special setting, or do you want me to put you with the general call? The case behind you at 2:00 o’clock would rather a special setting, I think, right now.

MR. SOTOS: I appreciate that, Judge. And if that suits the court better, we’re happy to do it that way.

MR. HORWITZ: My guess is — I don’t know, Judge. I really don’t know. My guess is we’ll –

THE COURT: My guess is you’re about done, and it’s not going to be that bad from this point forward. You don’t have much left.

MR. HORWITZ: I tend to agree.

THE COURT: What’s the 28th look like? Is that pretty light?

THE CLERK: January?

THE COURT: Yes. That still gives me some time to maneuver just in case you got a problem, somebody didn’t show up for the deposition.

THE CLERK: You already have something at 2:00 o’clock. You have a final pretrial conference. Right now it’s not heavy.

THE COURT: Why don’t I give you 2:30 that day.

MR. HORWITZ: What day?

THE COURT: 1-28, 2011, 2:30 in the afternoon. Give me any Rule 37 motions in time that I can try to rule upon them then.

Counsels, you have a great holiday. I’m done for the day.

MR. SOTOS: Thanks for your patience, Judge.

THE COURT: I’m done for the day, counsel. You had enough time.

MR. SOTOS: Thanks for your patience

MR. HORWITZ: Okay. Well, we’ll present it by way of motion then, I guess.

THE COURT: I don’t know, but you’re not getting it today.

MR. HORWITZ: All right. Thanks, Judge.

THE COURT: Have a great day, counsels.

(Which were all the proceedings had in the above-entitled cause on the day and date aforesaid.)

I certify that the foregoing is a correct transcript from the tape-recording of proceedings in the above-entitled matte

Mary T. Lindbloom
Official Court Reporter

Christmas Eve, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday, Part 6 Wednesday, Part 7 Thursday and Part 8 Friday.

Now it is New Year’s Eve Day and time for Part 9. Most discussion is about who gets to be deposed for how long, plus production of a traffic ticket data base which includes voided tickets.

Having finished up arranging for Jill Tutt’s deposition, the Judge tried to wrap up the hearing.

THE COURT (continued): What else you want? When are you going to get all this done by? January 31st? Can you get this all done by January 31st?

MR. HORWITZ: Let me just tell you what else, Judge.

MR. SOTOS: Judge, I could be done tomorrow.

THE COURT: All right. All right.

MR. SOTOS: I’ve been done –

MR. HORWITZ: That’s fine. Okay. I stipulate to him being done tomorrow, no further discovery.

THE COURT: Well, but you can’t be done tomorrow, either.

MR. HORWITZ: Well, that’s different.

THE COURT: Can you get all this done by January 31st, counsel on behalf of the plaintiff?

MR. HORWITZ: Can I just tell you what else there is before I say that?

THE COURT: Aren’t you done?

MR. HORWITZ: No.

THE COURT: What else you got?

MR. HORWITZ: All right. The deposition of Ms. Weech, Janet Weech.

THE COURT: I gave you 30 minutes.

MR. HORWITZ: In her deposition she said that there is a complete — remember I’ve been sort of ranting and raving about not having a complete database?

THE COURT: I’ve never associated you with ranting or raving.

MR. HORWITZ: I lodged some pretty serious allegations attributable to that, sent e-mails to defense counsel, and let’s just say I was commenting about it in a zealous way.

So, in that regard she said, “Oh, by the way, there is a full database,” and no, it is not what defense counsel gave us. So, for example, if you talk about the 140 that you saw relative to Bruketta, Judge, it could be 200. It could be 250.

I don’t know. But I have notified defense counsel over and over and over again that the information they gave us is not correct.

So, what Janet Weech said is yeah, there is a full and complete database for the years you’ve indicated. What his associate said in the deposition is “Mr. Horwitz, I will get that to you,” and she said she would get it to me on Monday, and I understand they had a trial going on, and they’ve been busy.

So, maybe it’s in the mail today by Federal Express. I do not know. But she said she would try to do it Tuesday. Memorialize all this by e-mails and whatnot, and what would be really great to have is that information. Now, to be clear, when –

THE COURT: Well, they say they sent it to you on the 8th.

MR. HORWITZ: No, it’s not been sent to us, Judge.

THE COURT: All right.

MR. HORWITZ: And to be clear — so, we want that information. And just so you know, Sieth, who’s a defendant in this case, relied upon a portion of this data and not the database that I received from counsel, not that data, but this data that hasn’t yet been tendered to me, she relied upon that.

Okay? I can explain in great detail, if you want, but she relied upon it in order to determine that there was no racial profiling that took place. So, anyways, I would love to get that data and work with it and then –

THE COURT: What other depositions do you have?

MR. HORWITZ: The other deposition is completing Sieth’s deposition. She produced herself for deposition in my office and then –

MR. SOTOS: My office.

MR. HORWITZ: No, it was my office. Jim, trust me on it. I remember seeing her in my office.

MR. SOTOS: First time. All right.

MR. HORWITZ: Yes. And so, I don’t care where it follows up, that’s fine. I enjoy going to Jim’s office. They’re very hospitable.

Anyways, after I receive the updated database, the actual correct database from the years two thousand — I think

it’s five to 2008, then I would like to take her deposition and talk to her about the actual correct data this time.

THE COURT: All right.

MR. HORWITZ: So, her deposition wasn’t completed.

THE COURT: All right. What about the database?

MR. SOTOS: Last time I was here, I wasn’t in a position to respond. Now I am. They requested in discovery all data concerning racial profiling statistics — by the way, over 9 a year and a half ago — and we gave them what we provided to IDOT, which was the database with all the tickets.

What wasn’t in there was information about voided tickets because for a variety of reasons, deputies sometimes don’t fill out the racial profiling data. When they don’t, the department doesn’t include that in what they send to IDOT. So, we provided them what they asked for a year and a half ago, which was all the information we provided to IDOT, and he’s correct. That’s what Kathleen Sieth relied on when she did her racial profiling investigation.

Now, he took Jan Weech’s deposition, who said — he 20 asked about what about the voided tickets. She explained the situation and says yes, we do have a database that if we wanted to get information about voided tickets, we can. So, we told him, “We’ll get it for you.”

But, you know, the idea that he can stand here and say like we gave them inaccurate information, false information, it’s entirely untrue. We provided them a year and a half ago with exactly what they asked for and exactly what we relied on.

Now we get towards — you know, after all these final discovery extensions, now I want to take depositions based on this other thing that I’m looking into now, voided tickets –

MR. HORWITZ: Jim, I’m sorry.

THE COURT: Now, wait. Wait.

MR. HORWITZ: Okay. I’ll wait. More than happy to wait.

MR. SOTOS: So, we said during Weech’s deposition we’ll see if we can create a spreadsheet. We don’t have a spreadsheet for that because that’s not the information that we provided to IDOT, which is what we create the spreadsheet for. See if we can create one and get that to you. And I don’t know what the status of that was. Her deposition was just a couple of days
ago. With respect to Ms. Sieth –

THE COURT: Well, let’s back up a minute.

MR. SOTOS: Still on the database.

THE COURT: On the database, when do you expect to produce the database as far as voided tickets?

MR. SOTOS: If we can do that, and I’m sure we can, I would hope within seven days or so, maybe less. As soon as we can get it, we’ll give it to him.

THE COURT: All right. So, he should have it by the end of the year.

MR. SOTOS: Oh, definitely before the end of the year. If we can do it, we’ll get it to him before the end of the year.

MR. HORWITZ: I would like it before I take another dep because if it’s 250 or whatever relative to Bruketta –

THE COURT: All right. You’re going to have it before the end of the year. Now, what other depositions do you need?

MR. SOTOS: He said Ms. Sieth.

THE COURT: He says Sieth.

MR. SOTOS: Who he wants to take again.

MR. HORWITZ: No, no, no.

MR. SOTOS: Just so you know, she was at my office last week for her deposition, and she was there all day, but we didn’t get to that because he didn’t get to the office ’til 10:30.

THE COURT: You want Sieth. You want Cundiff, too?

MR. HORWITZ: Yes. I guess I don’t need to address Cundiff’s. I mean, you’re already ordering it. So, I don’t need to.

THE COURT: How long do you want for Sieth?

MR. HORWITZ: Two hours.

THE COURT: Counsel, your input.

MR. HORWITZ: She’s a party.

THE COURT: Counsel, your input.

MR. SOTOS: She’s already been deposed once. She was at my office last week all day for her deposition. The depositions — there were three. They were supposed to go at 9:00, 12:00, and 3:00. He didn’t get there ’til 10:30, didn’t get the system set up –

THE COURT: 10:45 until he got ready.

MR. SOTOS: Right.

THE COURT: I read it.

MR. SOTOS: So, I think that he’s had his opportunity for Ms. Sieth.

THE COURT: You can have an hour.

MR. HORWITZ: Judge, may I on this?

THE COURT: Cundiff.

MR. HORWITZ: That’s the only one I want to push, Judge. I’m sorry. I’m not retaking her deposition. Her deposition never completed. She had to leave when she was at –

THE COURT: You’ve got an hour. Do you want Cundiff or not?

MR. HORWITZ: Yes.

THE COURT: How long?

MR. HORWITZ: He’s a party. What you’ve allowed for parties. I think it’s six hours.

MR. SOTOS: You know, Judge, I understand that you allow six hours for parties. I keep saying the same thing.

We’re over two years into the case, and there’s no reason he couldn’t have taken Cundiff’s deposition.

THE COURT: You can have two hours on Cundiff.

All right. What do you want as a fact discovery cutoff date?

MR. HORWITZ: I’m sorry.

THE COURT: What would you like as a fact –

MR. HORWITZ: Could I possibly talk to you about the amount of time?

THE COURT: On Cundiff?

MR. HORWITZ: On both.

THE COURT: No, you can’t on Sieth. Yes, you can on Cundiff.

MR. HORWITZ: All right. Judge –

THE COURT: I was more arbitrary on Cundiff.

MR. HORWITZ: Judge, I’m sorry.

MR. SOTOS: Judge, I’ll agree to three if it will just –

THE COURT: Three good on Cundiff? Do you want it?

MR. HORWITZ: Judge, he’s a captain. He’s –

THE COURT: Counsel, we’re at the end. Why are we taking all these depositions on an ’08 case with ten minutes left to go?

MR. HORWITZ: The answer is –

THE COURT: Yeah.

MR. HORWITZ: Well, I’ll tell you one meaningful thing that occurred. I actually split with my partner during the middle of this. I just want you to know.

THE COURT: All right.

MR. HORWITZ: So, that was a very meaningful business activity that occurred.

THE COURT: All right.

MR. HORWITZ: And, secondly, we have received, just so you know, thousands and thousands and thousands from the defendants –

THE COURT: How much time –

MR. HORWITZ: — and we analyze them before we take deps.

THE COURT: How much time do you want on Cundiff?

MR. HORWITZ: Okay. I would like the amount of time you provided. Just so you know, Judge, these depositions are not easy, meaning that they’re recalcitrant witnesses. They don’t testify as to what actually takes place. There’s a lot of objections. We’ve done depositions where there’s up to three to 400 objections lodged by defense counsel and other parties. So, I would like –

THE COURT: All right. When are you going to be done, counsel? When are you going to be done with fact discovery?

MR. HORWITZ: Do I get to get back to Sieth? I would really like to address the Sieth issue. It’s very important, Judge. She was –

THE COURT: You already took this one.

MR. HORWITZ: Judge, no, no. I didn’t already take her. I was never given the six hours for Sieth.

THE COURT: How much time –

MR. HORWITZ: I think she came to my office for three hours, Judge.

THE COURT: How long of that did you get?

MR. HORWITZ: Three hours. She left. “I have to go,” her words were. “I’ve got to go right now.” It was either a personal matter or whatever. She was in my office for three hours.

THE COURT: How many hours are you asking on Sieth?

MR. HORWITZ: I think whatever your order provided.

Just so you — Judge, just so you understand, I was never given the data that she relied upon. I told defense counsels over and over and over again –

THE COURT: So, you’re asking for an additional three hours on Sieth. You’re asking for six hours on Cundiff.

MR. HORWITZ: Just the correct amount of time I’m supposed to have for Sieth. In other words, I never asked for her to leave. She left. So, I would like the full amount of time so that I can get into the basis of her opinions.

MR. SOTOS: It was 7:00 o’clock in the evening, Judge.

THE COURT: I understand. What is the date you’re going to be done with discovery, counsel? When are you going to be done?

MR. HORWITZ: Okay. Now we’re moving on to the next question. I would recommend February 15th.

THE COURT: Any objections to that?

MR. SOTOS: Yes, we object, Judge. We think discovery — there’s been three final extensions, and discovery should be closed. I don’t see any reason why this work can’t be done in 30 days, 45 at the outset, but this thing just keeps going on and on, and what’s going to happen is –

THE COURT: I’d agree, but I got the holiday period in here, counsel. I mean, that’s really only 45 days of discovery, if you look at it.

MR. SOTOS: You know, Judge, every time we get into a new discovery period –

THE COURT: Listen. There’s no sense you and I arguing. February 15th is the fact discovery cutoff date. March 15th, 2011, is the dispositive motion due date. You get an hour and a half on Sieth. You get three hours on Cundiff.

That’s it. Anything else?

MR. HORWITZ: Yes.

THE COURT: I don’t think so.

MR. HORWITZ: Well, are you asking a question, or are you withdrawing your question? Because there actually are other things.

THE COURT: Like what?

MR. HORWITZ: All right. Let me gather my notes.

MR. SOTOS: Is that a final deadline, Judge?

THE COURT: I’m not — barring health issues, somebody 2 gets sick –

MR. SOTOS: I understand that.

THE COURT: — somebody gets sick, somebody becomes ill –

MR. SOTOS: I understand.

THE COURT: — I got that. But other than that, I’m not extending it.

More tomorrow.

Christmas Eve, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday, Part 6 Wednesday and Part 7 Thursday.

Now it is New Year’s Eve day and time for Part 8.

THE COURT: What else do you need?

MR. HORWITZ: Okay. So, I’ve mentioned the deposition of Jose Rivera, Gary Pack.

MR. SOTOS: What about Rivera? I didn’t know that that was resolved.

THE COURT: I haven’t done that yet. I haven’t done Jose Rivera. You know the ones I’ve done. You’ve written it down.

MR. SOTOS: No. I just said that because he said that I’ve already said Rivera.

THE COURT: No. You want to take Jose Rivera, and who else do you want?

MR. HORWITZ: Just so you know, I did already issue a subpoena for him and Gary Pack for tomorrow, the depositions. I issued that last week.

THE COURT: Did you clear the date with counsel?

MR. HORWITZ: No, I did not. I just spoke to him about it right now, but, no, I didn’t clear the date, Judge. Things were happening very fast with Deputy Milliman’s testimony and all the back and forth we’ve been doing in this case. So, I sent out the subpoena, and I’m more than happy to clear the dates and cooperate fully.

THE COURT: Well, and I’ll direct that you do so.

MR. HORWITZ: Absolutely. That’s perfectly fine. We always do it. And, by the way, you wrote down that July 22nd. That’s just not correct. But that’s their spin on it. That’s all it is.

THE COURT: Well, that’s what he told me. That’s why I wrote it down, counsel.

MR. HORWITZ: I understand.

THE COURT: I do that to take notes. I’m not writing an opinion up here. I’m just trying to keep up with the two of you. Now, you want Jose Rivera. Who’s the other guy again?

MR. HORWITZ: Gary Pack.

MR. SOTOS: He’s a former State’s Attorney from McHenry County.

THE COURT: Why do you want Mr. Pack?

MR. HORWITZ: Because Deputy Milliman stated that what Jose Rivera would do is speak to those individuals — speak to the Hispanics, communicate with the Hispanics that were pulled over for driving a vehicle without a valid driver’s license and –

THE COURT: I’m listening.

MR. HORWITZ: And he would then ask them if they want to enter into a deal whereby their case is dismissed or nolle prosequi in exchange for money. He said –

THE COURT: Who gets the money?

MR. HORWITZ: Jose Rivera does. Somebody in the State’s Attorney’s Office. I do not know who yet.

THE COURT: How does this fit into your guy?

MR. HORWITZ: And Sheriff Nygren receives the money.

MR. SOTOS: Judge, can I just say something?

MR. HORWITZ: These are Hispanics that are targeted.

THE COURT: I got that, but you still haven’t told me. How does this fit into your case?

MR. HORWITZ: It fits into the case, number one, Hispanics were targeted. Just like in our racial profiling case, Hispanics were targeted.

THE COURT: Who’s Jose Rivera?

MR. HORWITZ: He’s a business partner of Sheriff Nygren.

MR. SOTOS: The criminal coconspirator.

MR. HORWITZ: Pursuant to Deputy Milliman in a sit-down conversation –

THE COURT: So, you’re telling me that the money, you think, gets to Nygren eventually?

MR. HORWITZ: Absolutely, Judge. That is what Deputy Milliman stated.

THE COURT: All right.

MR. SOTOS: Judge –

MR. HORWITZ: He is what he is. He said what he said. And, you know, I don’t know what else to tell you, but those are his words.

MR. SOTOS: Can I tell you one more thing, Judge?

THE COURT: Sure. Why not. I’ve heard everything.

MR. SOTOS: I know. I know.

MR. HORWITZ: There’s still more.

MR. SOTOS: This Milliman testified that his perception of this scheme is based on conversations, and I’ll provide you with the dep transcript if counsel disagrees, that occurred between him and Nygren and Rivera back in 1999 and 2000, and he believed that this criminal enterprise was ongoing up through 2006, which is before –

THE COURT: All this happened.

MR. SOTOS: — any of this happened. And all I would say is that these are really serious allegations, and they may well — you know, if there’s a criminal investigation or something of that sort, I get that, but for that to become something that we’re now going to investigate in this case seems to me to be so far beyond the pale from –

THE COURT: Have you had the number of depositions that were authorized in the case management order at this point?

MR. HORWITZ: I don’t think so, but I haven’t tallied it up.

THE COURT: Counsel?

MR. SOTOS: I believe that he has, Judge, but I can’t tell you that right now –

MR. HORWITZ: I don’t think that’s true.

MR. SOTOS: — for certain.

THE COURT: Well –

MR. SOTOS: I’m fairly certain that he has.

THE COURT: Well, if, in fact, counsel hasn’t, he doesn’t need my permission to take the depositions. If he has, he does. Now, is that it then, those two?

MR. HORWITZ: Jill Tutt is a deposition that defense counsel’s associate stated that she would set up, and she’s not given a date yet for Jill Tutt’s deposition. That’s a deposition –

THE COURT: That was originally set up on July 15th, 2010; is that right?

MR. HORWITZ: I don’t know the date, Judge. What happened is that defense counsel — you provided four hours, and the deposition goes forward, and then she either has to leave or whatnot, and I don’t get an opportunity to redirect, or whatever you want, ask questions.

THE COURT: Do you all agree — did you all agree to –

MR. SOTOS: He deposed her for three and a half hours on July 15th, six months ago.

MR. HORWITZ: I didn’t depose her. Your associate did, noticed her up. And I did not get an opportunity to ask questions, and she left, and that’s what happened.

THE COURT: How much time do you want?

MR. HORWITZ: Two hours.

THE COURT: That means you take one.

MR. HORWITZ: That’s right. I was thinking of saying three.

THE COURT: I used to be a plaintiff’s lawyer, too.

MR. HORWITZ: I was thinking of saying three. I wasn’t sure how that would play out.

COURT: I’ll give you one.

More tomorrow.

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday and Part 6 Wednesday.

This is Part 7.

As we ended yesterday’s portion of the transcript, Judge Mahoney was asking, “Well, what else is there?”

MR. HORWITZ: There’s a Monell theory.

THE COURT: Okay.

MR. HORWITZ: There’s code of silence. There’s retaliation. For example, there are seven officers, Judge, who have come forward to testify, five in deposition, that there’s a code of silence at the department. There’s retaliation for coming forward. If you exercise your First Amendment — if you speak out against the department — five cops have testified.

These are guys that are working at the department, except for one.

THE COURT: Okay.

MR. HORWITZ: I can give you their names if you want, but you got from 18 years on the department to less than a year. We have two officers who have not yet testified who I’ve disclosed to defense counsel are coming forward, as well, to say exactly the same things, one who is actually willing to be a 26(a)(2)(b) witness as to racial profiling, how these tickets are generated, the training the officers receive, and whatnot.

His name is Timothy Madison.

THE COURT: Is that the 26(a)(2) witness you talk about sometimes?

MR. HORWITZ: Yes. The need for him recently came forward based upon the 140 tickets.

THE COURT: What’s your 26(a)(2) witness going to say?

MR. HORWITZ: He will say — he will describe

• how it is that racial profiling
• how it is that the officers were trained at the department
• how it is that Bruketta was trained at the department.

THE COURT: Yeah.

MR. HORWITZ: How it is that tickets are generated.

THE COURT: Okay.

MR. HORWITZ: And how it is officers establish –

THE COURT: How is that opinion testimony so far?

MR. HORWITZ: Judge, if it isn’t 26(a)(2)(b) testimony, you ought to rule on that.

THE COURT: No. I’m just asking how it was. All you’ve done is tell me I saw this, I saw this, I saw this. How is that 26(a)(2)?

MR. HORWITZ: The reason why I believe it’s 26(a)(2) testimony is because the jury may not understand the training that occurred, how you can take all the training and match it with the correct way to –

THE COURT: All right. So, there comes a point in time where he’s going to offer opinions.

MR. HORWITZ: Yeah. Like you said to counsel, you know, what happens, that sort of thing.

THE COURT: Now, counsel, tell me again. What do you want to do besides what we’ve talked about so I can get this case to trial? What has to be done in your opinion?

MR. HORWITZ: All right. Going on, Dr. Meyer is a doctor that the defendants indicated they would facilitate in setting up his deposition. His deposition needs to be completed. Dr. Meyer.

MR. SOTOS: He testified, as well, but that one wasn’t finished, either.

THE COURT: Well, it was on May 24th, 2010. He testified for four hours.

MR. SOTOS: Right. On May 24th, Judge.

THE COURT: How many more hours do you need?

MR. HORWITZ: I probably need about an hour and a half.

THE COURT: What do you think?

MR. SOTOS: Honestly what I think, Judge, is I do not understand why there’s never been any need for him to explain why you would take somebody’s deposition in May, go through several different discovery closing deadlines that are coming, and then say six months later, “I want to finish his dep.” I mean, that’s not how — this case has been conducted in two separate discovery periods.

THE COURT: All right. Slow down. Slow down.

MR. SOTOS: You’re right.

THE COURT: All right. Now, number one, you still have the right to do any discovery that you want. Number two, things have popped up in this case. That’s why I’ve tried to talk to you before. Who is Dr. Meyer and in your opinion how does he fit into this case?

MR. SOTOS: Dr. Meyer is a doctor who examined plaintiff after he was in a shooting incident.

THE COURT: Psychologist?

MR. SOTOS: He shot somebody, and then he was –

THE COURT: Ph.D. doctor or medical?

MR. SOTOS: Yes.

THE COURT: Ph.D. doctor.

MR. SOTOS: Psychologist.

THE COURT: All right. So, did he counsel him or just examine him on behalf of the department?

MR. SOTOS: He examined him, I believe, first on behalf of the department and concluded that he shouldn’t be on the SWAT team because of the stress, things of that nature. I think that was primarily what he did. He said that because of what he was involved in –

THE COURT: All right. Why wasn’t four hours enough with this guy? Why aren’t you done?

MR. HORWITZ: Because the defendants took his deposition for about three and a half hours, and I was entitled — I was then — considering the four-hour time period you set and considering the four hours he had available for himself scheduling wise, I was only –

THE COURT: So, you only had 30 minutes with this guy?

MR. HORWITZ: Maybe half an — maybe 45 minutes, Judge. I don’t want to say on the record as an officer of the court exactly.

THE COURT: Does that sound right?

MR. SOTOS: I wasn’t there. I don’t remember. I just don’t know why it never came up in a half a year.

MR. HORWITZ: Judge, if you want me to respond to that, his associate –

THE COURT: Sure.

MR. HORWITZ: His associate said, “I will give you the dates for Dr. Meyer’s deposition.” The reason why –

THE COURT: Is Dr. Meyer under their control?

MR. HORWITZ: The reason why he is under their control is he considers himself somebody that works for the department. He’s received –

THE COURT: Still?

MR. HORWITZ: I don’t know about still. I’m telling you the conversation between his associate and me. First of all, he is a friend of Sheriff –

THE COURT: How much time do you want with Dr. Meyer?

MR. HORWITZ: Hour and a half.

THE COURT: I’ll give you an hour. What else do you need?

MR. HORWITZ: Do I need to say more next time?

THE COURT: No.

MR. HORWITZ: All right.

More tomorrow.

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday and Part 5 Tuesday.

This is Part 6.

As that part of the transcript posted yesterday was ending, McHenry County Sheriff’s Department Attorney James Sotos was asking if he could respond and Federal Magistrate P. Michael Mahoney was agreeing. For context reasons, I repeat those two lines, which the next part of the transcript follows.

MR. SOTOS: Judge, can I respond to this –

THE COURT: Yeah, you sure can.

MR. SOTOS: — aspect of it? Because this is going to require a little bit of background. I’ll be as brief as I can.

You know, we conducted discovery because we took the court at its word back a year and a half ago when we were told we were supposed to do discovery by June of 2010. So, we did all of our depositions by June of 2010 with the exception of one that counsel kept canceling that was taken yesterday.

Then discovery started getting extended, and every time we came here on the eve of a discovery close, we were first told, well, now we have to do all this discovery into all of these different other deputies at the Sheriff’s Department and turn over all their personnel files, which we did, thousands and thousands of documents, which have not been mentioned ever since then.

The next time discovery was supposed to close we were told — counsel came in here and said, “They gave us false information in a spreadsheet. We found out that it was false. They’ve withheld information,” which we subsequently — at the time I didn’t know what to say because it was sprung on me. I said, “I don’t know if there’s anything inaccurate in there or not.” It turns out, and it’s in our response in the motion, there was nothing inaccurate with anything in the spreadsheet.

We provided exactly what was asked for, which were the racial profiling statistics, and I’m sure we’ll get to that at some point.

And then now when we’re on the close of discovery again, we have a whole new criminal enterprise theory involving Sheriff Nygren that he’s requesting to do discovery into. Now, that’s Jose Rivera, who he doesn’t allege is Sheriff Nygren’s business partner. He alleges that he is his partner in this coyote scheme and this kickback scheme and in these murder plots and all of this other stuff, which doesn’t have anything to do with this case.

And the fact that he says he has a Monell claim, I would direct the court to paragraph 72, I think it is, of his complaint where his Monell claim has about nine or ten different subparts, and they all say the same thing, that the sheriff’s department did not adequately monitor, discipline, investigate allegations of racial profiling and that they retaliated against Mr. Seipler when he did in a number of different ways. By taking him off the SWAT team, doing all the things they did that ultimately led to his termination. That’s it. That’s what his
Monell claim says.

So, for him to just say, well, I have a Monell claim, and that means that he — because we’re talking about a lot of discovery. If we are really going to be required to defend Sheriff Nygren on the allegations of Deputy Milliman that he was involved in some criminal conspiracy involving illegal trafficking of Hispanics over the last several years, that’s going to take a lot of work, and it doesn’t have anything to do with the lawsuit, Judge, and it doesn’t have anything to do with his Monell claim, either.

THE COURT: Well, I’ll let — it’s closer to the Monell claim than the lawsuit. Whether or not it really fits, I don’t know. But, counsel, you have to give me this. This has turned out not to be the garden variety lawsuit as far as 1983 is concerned. Every time I pick up this file, there’s something different that happens that I haven’t seen before in any file.

That’s why it’s drawn out.

MR. SOTOS: That’s because it comes up on the close of discovery. There’s this frenetic activity weeks before discovery closes, and then we’re in here defending entirely new allegations, and this –

THE COURT: What am I supposed to with somebody that misidentifies 140 individuals as Caucasian?

MR. SOTOS: Judge, I got –

THE COURT: Am I supposed to be happy with that?

MR. SOTOS: Well, Judge, you know what? I’m not happy with that, but that’s not — in the first place, we’re not even arguing about that, about him doing discovery on that. As far as that goes, he never — by the way, Judge, he never complained about that ever. That was something that we first had notice of during this case when we were doing the responses to discovery.

THE COURT: But he –

MR. HORWITZ: That’s a false statement.

THE COURT: Wait for me. Wait for me. But he has always said to me that this particular officer engaged in racial profiling, hasn’t he?

MR. SOTOS: No, Judge. The first time — the first time that he ever mentioned Bruketta was on July 22nd, 2008, which was after all of the alleged retaliation that he’s complaining about with the –

THE COURT: You’re talking about Seipler now?

MR. SOTOS: Seipler. The first time he mentioned Bruketta was when he was ordered to disclose the names of people who he thought were involved in racial profiling. He submitted a memo on July 22nd, 2008. That was the day after he had been placed on administrative leave as a result of the citizen complaint that he told people to switch seats and gave the ticket to a passenger.

THE COURT: Was Bruketta on the memo?

MR. SOTOS: He was on the memo, but, again, that was issued the day after the leave. And, by the way, Judge, as far as that goes, they looked into it. They didn’t have any reason to think that he was writing down the wrong race. That first came up within the last 45 days or so and they’re doing an investigation into that broader than just him. But that’s the first time that came up. So, that’s not even connected to his allegations in this case. But it certainly doesn’t have anything to do with this criminal conspiracy nonsense involving –

THE COURT: Okay. I got it.

But, counsel, look. I’m not going to let you go off on a year’s worth of discovery on Sheriff Nygren and whether or not he hired somebody to kill somebody in some location because that might show that he was trying to cover things up to fire your client. All right?

MR. HORWITZ: All right.

THE COURT: Now, I want to get the case done. Your client’s position is he made a legitimate complaint. He made it through legitimate authorities. What he said was true, and because of that in retaliation he got fired.

MR. HORWITZ: That is the core section 1983 First Amendment retaliation. That is the core concept of the case, yes, your Honor.

THE COURT: That’s it. It’s straightforward. It’s right there.

MR. HORWITZ: Well, that’s correct. That is a core aspect of the case.

THE COURT: Well, what else is there?

More tomorrow.

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahone.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday and Part 5 is below.

MR. HORWITZ: There’s a Ms. Weech, Mrs. Weech. I think it’s Jan Weech.

THE COURT: Janet, I think. J-a-n-e-t.

MR. HORWITZ: Yes. Her deposition went, and she was a 30(b)(6) witness.

THE COURT: Yes.

MR. HORWITZ: During the deposition, defense counsel, his associate, agreed to a continuation for the deposition as a basis for one of her 30(b)(6) witness — 30(b)(6) opinions, which is why documents were destroyed, and these documents that are destroyed are two forms that officers wrote relative to 25 voided tickets.

THE COURT: What are you talking? Thirty minutes to wrap that up?

MR. HORWITZ: Maybe 45.

MR. SOTOS: Judge, if you notice on the motion, all of these depositions, for the most part, are depositions that have been started that never finished.

THE COURT: I see.

MR. SOTOS: But, you know, 45 minutes with Ms. Weech, we’ll agree to that, Judge, because –

THE COURT: No. Thirty minutes. Thirty minutes you can wrap up Ms. Weech. Who else do you need?

MR. HORWITZ: By the way, I guess defense counsel is the one that wanted to continue on with Milliman. So, I’m not sure what — the accusation you’re throwing.

THE COURT: No, I understand. No, I didn’t make any accusation, counsel. I’m sorry if you think I did. I put three hours down to Milliman because from what you’ve told me he said, giving counsel three hours to follow through on Deputy Milliman, that seemed reasonable to me. It seemed like he said a lot.

MR. HORWITZ: That’s fine. No. So, three hours. I would like an opportunity to ask questions, as well.

THE COURT: I’ll give you an hour.

MR. HORWITZ: All right. So, it’s three on –

THE COURT: Three for him on Milliman. One for you for rebuttal. I don’t know what Pyle has set forth. I haven’t put a number on Pyle.

MR. SOTOS: You said two and a half hours, Judge. I think you did put a number on that one.

THE COURT: All right. Two and a half on Pyle. Thirty minutes on Weech. What else you got?

MR. HORWITZ: Given the testimony of Milliman, we did issue subpoenas for Jose Rivera and Gary Pack. Jose Rivera is the individual that engaged in the illegal scheme that would be able –

THE COURT: Allegedly.

MR. HORWITZ: Yes. That would be able to articulate the admissions by Sheriff Nygren as to many things. Do you want me to go any further about that? Do you want me to argue as to whether or not I should take his dep? I’m just telling you what we have.

THE COURT: Well, why don’t you argue, first of all, as to why you should take his dep because, obviously, as you can tell, I’m trying to wrap this up.

MR. HORWITZ: Sure.

THE COURT: And that’s to — hopefully to both your clients’ benefits to get this wrapped up, get by if we’re going to get a Rule 56, and get the case tried and find out what the jury thinks of all this.

MR. HORWITZ: Jose Rivera would be able to — Jose Rivera is a business partner, the allegations run from — alleged business partner of Sheriff Nygren.

THE COURT: All right.

MR. HORWITZ: That’s what Deputy Milliman said. So, to be clear, him, Deputy Milliman, Jose Rivera, and Sheriff Nygren would sit in a room on many, many, many occasions, and they would talk about what is going on. Okay?

THE COURT: That’s what Milliman said?

MR. HORWITZ: Yes.

THE COURT: All right.

MR. HORWITZ: 2000, he said. 1999 and 2000. That’s when they had these conversations. And subsequently.

MR. SOTOS: That’s not what he says.

THE COURT: That’s okay.

MR. HORWITZ: So, and these are the things he said on the record.

All right. So, there are three events, three instances where Jose Rivera and Sheriff –

THE COURT: You got a Monell claim?

MR. HORWITZ: Yes.

THE COURT: Okay.

MR. HORWITZ: Do you want me to talk further?

THE COURT: No. That’s where that fits, I assume. I assume you’re going to tell me it fits on the Monell claim.

MR. HORWITZ: It fits on the Monell claim. It also fits potentially for 404(b) evidence and 608(b) evidence.

THE COURT: See, I think it’s kind of hard to get there, but –

MR. SOTOS: Judge, can I respond to this –

THE COURT: Yeah, you sure can.

More tomorrow.

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney. December 25th, the second part was published with the third installment published yesterday. This is part 4.

THE COURT: Tell me what do you have to have until you can try this case. Let’s try this case.

MR. HORWITZ: The other issues that are outstanding are you ordered the deposition of three individuals, Bruketta, Jones, and Pyle.

THE COURT: Right.

MR. HORWITZ: Pyle is the gentleman that — okay. So, the attorney for — so, Bruketta and Jones, their depositions went.

THE COURT: Pyle did not.

MR. HORWITZ: Pyle, his attorney offered December 22nd, and I don’t have confirmation from counsel. I think yesterday by e-mail I submitted it out to everybody, and I think — I’m going to guess that we’re good on December 22nd, but I don’t have confirmation.

THE COURT: What else do you need besides Pyle?

MR. HORWITZ: Milliman’s deposition to complete. He secured his own counsel.

THE COURT: How many hours have you had with Milliman?

MR. HORWITZ: Well, I think I probably have some questions for about three hours or so, and defense counsel was in the middle of asking questions.

THE COURT: How much time do you need to clean up?

MR. SOTOS: We just need a couple hours, Judge. I’d say three’s plenty. We had planned to finish his deposition in accordance was this final deadline. We were told — we brought Mr. Milliman in for his dep. He said that he had secured counsel. So, we didn’t take the dep. We called his counsel, who said that he has not talked to Deputy Milliman, doesn’t know what he’s talking about. So, that’s the one thing that we weren’t able to get done by the 15th.

THE COURT: Did Deputy Bruketta actually say that he misidentified 140 individuals as Caucasians in 2008?

MR. SOTOS: That’s being looked into right now, too, Judge. But he did say –

MR. HORWITZ: The answer is yes, Judge.

MR. SOTOS: I don’t know if he said 140 or not, but he may — I know that he said that there was a whole host of people who appeared to be Hispanic surnames. Many of them just spoke Spanish, and they were marked as Caucasian on tickets.

THE COURT: Now –

MR. HORWITZ: Judge, just so you know –

THE COURT: I’ll get back to you.

MR. HORWITZ: — I don’t say things that aren’t straight on the record.

THE COURT: No, no. I’ll get back to you. I just –I’m asking.

Now, do you have any other deputies that hit numbers like that? Has anything in discovery shown someone else that misidentified that many people?

MR. SOTOS: No.

MR. HORWITZ: No.

THE COURT: I mean, because that seems — the reason I’m asking, counsel, I’m not a deputy. I’m not in sheriffs’ departments. I don’t know. Maybe people just don’t pay attention when they mark these boxes. I mean, is this something that you would consider — not to bind your client, not to make an admission.

MR. HORWITZ: Sure.

THE COURT: But would you consider it average for — not to be used by you. Okay? Average –

MR. HORWITZ: Well, hold on a second. Where do I put this? Where do I put what I learn right now?

THE COURT: Yeah. Well –

MR. HORWITZ: I could put it in a vault somewhere?

THE COURT: Then I’m not going to ask you the question.

MR. HORWITZ: Okay. Do you want to go off the record?

THE COURT: All right. Then I won’t ask the question. No, no. I won’t ask the question. I’ll just state it. Seemed high to me. Okay? What else do you need?

MR. SOTOS: It seemed high to the department, too, Judge. Probably leads to the next topic that he’s raised.

THE COURT: Yeah. I don’t even know how you do that, unless you’re just sloppy.

MR. HORWITZ: Well, he was trained in March of ’08. He admitted in his deposition he received his second bout of training attributable to how to properly mark tickets in March of ’08, and it was after March of ’08 where at least a hundred other tickets were marked incorrectly.

THE COURT: Okay. What else do you need? You’ve got Pyle. You’ve got three more hours to clean up Milliman.

More tomorrow.