Karen Kidd Aug. 24, 2016, 10:00pm

CHICAGO – A recent appeals court ruling that a Cook County Jail inmate may cite a 2008 Department of Justice investigation could open similar doors for other plaintiffs alleging unconstitutional mistreatment at the jail and at the hands of law enforcement, the inmate's attorney said.

John Vishneski, a partner at the firm of Reed Smith LLP, in Chicago, that has been providing pro bono representation for a Cook County Jail inmate, told the Cook County Record in an email interview that the ruling by the U.S. Seventh Circuit Court of Appeals broadened the ways in which  FRE 803(8)(a)(iii), the Federal Rule of Evidence for hearsay exceptions, can be interpreted.

"The government can still challenge the admissibility of the factual findings of reports from other government agencies (e.g., if there are indications of unreliability), but the path of applying the factors suggested in the commentary to the rule, as our trial court and other trial courts have done, has been foreclosed," Vishneski said.

A lower court had rejected that interpretation. But in the case of Vishneski's client, the Seventh Circuit found the DOJ report outlining the results of the department's investigation into conditions at the county jail should be allowed into evidence. 

Allowing it in this case could very well allow it in many others, Vishneski said.

"The language of FRE 803(8)(A)(iii) is fairly strong regarding admissibility of government investigative reports when done pursuant to statutory duties so it makes it more likely that plaintiffs will be able to use such reports," he said.

The U.S. District Court for Illinois' Northern District, Eastern Division, in May 2015, granted summary judgment for defendants in the case, claiming Vishneski's client, Alex Daniel, had not offered evidence of an unconstitutional official custom, policy or practice. The district court did not allow Daniel to cite the DOJ's 2008 investigation as part of his burden of proof.

The appeals court, in a ruling handed down Aug. 12, reversed and remanded that decision, stating that with that DOJ investigation, Daniel had sufficient evidence to defend himself against a defense motion for summary judgment.

The case is rooted in an injury Daniel suffered at the jail in 2010, according to court documents. Daniel was booked into the jail Nov. 21, 2007, a few weeks before his 47th birthday, on a first-degree murder charge in the shooting death of his wife at their Matteson home the previous spring.

On April 24, 2010, Daniel allegedly fell while playing basketball at the jail and suffered multiple fractures in his left wrist. The injury allegedly was not properly treated for months, through the summer and well into the fall, leaving Daniel without the full use of his left hand.

"A November 3 X-ray showed that Daniel’s wrist had suffered a loss in density, the onset of arthritis, and abnormal joint spacing," the appeals court decision said. "Daniel would later enlist an orthopedic expert, Dr. Fetter, to examine his injury in 2013. Dr. Fetter concluded that Daniel had suffered 'residual and permanent stiffness of his left hand and wrist,' more likely than not caused by the unduly long cast immobilization."

Daniel filed suit in March of 2011 against the county, jail and Cook County Sheriff Tom Dart. Daniel has been represented pro bono throughout his case by Reed Smith attorneys Vishneski, Jessica Brown, Noel Paul, Maria Pellegrini and Claudia Cortez.

"In this appeal we address a specific piece of evidence that has divided the judges of the Northern District of Illinois," Judge David Hamilton wrote in the appeals court's decision. "In a number of cases, including this one, plaintiffs have asserted that medical care at the Cook County Jail falls below constitutional standards as a matter of official policy, custom, or practice. The evidence question is whether such plaintiffs may use as evidence the 2008 findings from a U.S. Department of Justice investigation of health care at the jail."

That investigation, Hamilton explained in the appeals court's ruling, found systemic flaws in Cook County Jail’s scheduling, recordkeeping and grievance procedures that produced health care below the minimal requirements of the U.S. Constitution.

"If those findings are admissible for the truth of the matters asserted, they go a long way toward meeting a plaintiff’s burden of proving an unconstitutional custom, policy, or practice under Monell v. Department of Social Services," Hamilton wrote. "The Department of Justice Report is hearsay if used to assert the truth of its contents, and the district court held that the Report was not admissible to prove the truth of its findings."

The appeals court disagreed with that ruling by the district court in Daniel's case, concluding the DOJ report should be admitted under the Federal Rule of Evidence hearsay exception, Hamilton wrote. 

"The key part of the ruling is that the Seventh Circuit resolved a split in the district courts regarding whether government investigations, like the 2008 DOJ investigation in our case, should be admitted to prove widespread deficiencies in jail conditions to support a claim that the prisoner’s Eighth and 14th amendment rights have been violated," Vishneski wrote.

Vishneski said his client has been waiting for that a long time.

"Mr. Daniel has been very hopeful that he will get his day in court, and now that will happen," he said.

The appeals court did reverse and remand the case back to the district court, but defense attorneys in the case may have another option.

"It is possible that the defendants in our case will appeal to the U.S. Supreme Court," Vishneski said. "But I do not expect it."

Daniel also pursued another lawsuit against the county, jail, sheriff and two jail supervisors, which he filed in 2012 when he still was being detained in the Cook County Jail. In that case, Daniel claimed his mail, especially his legal mail, had been delayed and opened outside his presence. By January of 2014, Daniel had amended the case three times. That case ended in September of the following year when a judge from the same district court that ruled on his healthcare case granted a defense motion for summary judgment.

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