Chicago City Wire

A federal judge rejected a request by city defense attorneys in the controversial Jose Cruz wrongful conviction case to “clarify” an order to turn over original police homicide files for testing to ensure the files weren’t altered.

Cruz was serving a 90-year-sentence for the 1993 murder of 16-year-old Atwane Douglas when Cook County State’s Attorney Kim Foxx exonerated him in 2022. He also served 15 years on an unrelated gun charge. In July 2023, Cruz filed a wrongful conviction suit, naming former Detective Reynaldo Guevara, former Detective Ernest Halvorsen (now deceased), former Assistant State’s Attorney Edward Maloney, the city of Chicago and others.

The Cruz complaint says that Guevara and the other office defendants framed Cruz by, among other things, “manipulating and pressuring a witness” and “fabricating police reports.”

“The Court previously declined to bar the proposed testing based on concerns, fully aired by the City,” Magistrate Judge Gabriel Fuentes of U.S. District for the Northern District wrote. “The City argued that testing procedures would punch holes (the size of the head of a pencil, apparently) in the documents and therefore ruin them or render them untrustworthy in court hearings. The Court rejected those arguments and will not revisit them now.”

In requesting the clarifying order from Judge Fuentes, city attorneys disagreed with Cruz's attorneys that the testing would be non-destructive.

“Nevertheless, in email correspondence from his counsel, one of his experts, Chrisotpher Palenick, Ph.D., stated that he intended to collect ‘microscopic samples of ink and paper from the document using a 1 mm diameter document punch,” the city attorneys said in one motion.

The attorneys have been bickering over the testing – at one point Cruz’s attorney Stuart Chanen of Chanen & Olstein saying they were “done dickering with [counsel] on this issue.”

Guevara has been named in over two dozen other wrongful conviction cases, many resulting from controversial exonerations by Kim Foxx on claims of police misconduct. Some of the cases have been settled before reaching trial.

In the Cruz case, Foxx may have violated a Supreme Court rule covering communications with another attorney’s client; she discussed the case with Cruz in June 2022 while he was still incarcerated at Stateville Correction Center.

Supreme Court rule 4.2 states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."

Cruz was one of over 250 exonerated in Foxx's seven-and-a-half years in office.

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.