Chicago City Wire

A federal judge is allowing Jose Cruz, convicted of a 1993 murder in Chicago, to withhold— and even destroy— communications with his defense team generated during his criminal trial. The decision by Judge Jeremy Daniel of the U.S. District Court for the Northern District is a setback for defendants in Cruz’s wrongful conviction lawsuit, brought a year after Kim Foxx, the Cook County State's Attorney, in 2022 vacated his conviction for the murder. 

“Plaintiff's clawback motion [regain control of] is granted, and all copies of the 67 documents clawed back must be returned or destroyed, and not used directly or derivatively in the litigation,” the judge said. 

Cruz was serving a 90-year-sentence for the murder of 16-year-old Atwane Douglas when Foxx exonerated him. Cruz was also served 15 years on an unrelated gun charge. Cruz filed a wrongful conviction suit in July 2023, naming former Detective Reynaldo Guevera, former Detective Ernest Halvorsen (now deceased), former Assistant State’s Attorney Edward Maloney, the city of Chicago and others.

The judge’s decision was in response to a motion by defendants to use 67 documents from the Office of the Cook County Public Defender (OCCPD) in their defense against the wrongful conviction allegations.

The pages, the motion said, should be made available to them since Cruz had earlier waived any attorney-client privilege covering them— when it benefited him.

“Cruz’s waiver of his attorney-client privilege with the OCCPD was not inadvertent – it was his modus operandi,” the May 8 motion said.  “During his underlying criminal case, Cruz repeatedly used the attorney client privilege as a ‘sword.’” When Cruz perceived that it might benefit him, he disclosed confidential attorney-client communications to support his claims of ineffective assistance of counsel. Now that his criminal case is over, Cruz wants to use the same attorney-client privilege as a ‘shield’ to protect his communications with his criminal defense attorneys from disclosure in this civil case. He cannot have it both ways.”

As an example, defendants pointed to a 1999 post-conviction petition Cruz filed after an Illinois appellate court upheld his conviction and sentence. The petition accused his lawyer, Assistant Appellate Defendant, Ann McCallister of “ineffective assistance of counsel.”

“In support of that claim, Cruz attached to his motion correspondence between him and AAD McCallister, as well as his own affidavit, all of which revealed confidential attorney-client communications between him and AAD McCallister. These attorney-client communications touched on nearly every aspect of AAD.”

But the judge denied it, citing the “court's broad discretion to manage discovery under Jones v. City of Elkhart, Ind."

The judge also denied a separate motion by Maloney to require Cruz to respond to “contention interrogatories.”

Cruz was one of over 250 exonerated in Foxx's seven-and-a-half years in office. This case stands out because Foxx met with Cruz in June of 2022 in Stateville prison and told him he would soon be going home. The meeting may have violated a state Supreme Court attorney conduct rule.

Last April, Foxx announced she would not seek re-election. This past April, Eileen O’Neill Burke defeated Clayton Harris III, a Foxx-endorsed candidate, in the Democratic primary. Burke faces Republican opponent Bob Fioretti and Libertarian Andrew Charles Kopinski in the November General Election.