Chicago City Wire

Lawyers defending the city in the Jose Cruz wrongful conviction case have asked a federal judge to delay the testing of samples from the 1993 General Offense Case Report of the murder of a 16-year-old Antwane Douglas at North and Kedzie Avenues. Additionally, the city's defense is asking for the judge to arrange a time when both legal teams' experts can be present at the testing.  

A Dr. Palenik, named in the defense attorney’s motion, took samples from the case report on August 19—samples Cruz’s lawyers earlier said would result in no damage to the documents. But defense lawyers contend that the documents were damaged.

“The city filed a motion to clarify the Court’s order because Plaintiff’s expert, Dr. Palenik, had previously stated in email from Plaintiff’s counsel that he intended to make 1- millimeter sized holes in the document – that is, that the testing would be destructive,” they argued in the motion. “The city also explained that the writing on the document is small, such that taking 1 millimeter sized holes from the document would limit the City Defendants’ ability to take their own samples, and that taking samples of that size could obscure the writing on the documents.”

Cruz was serving a 90-year-sentence for the 1993 murder of Douglas when in 2022 Cook County State’s Attorney Kim Foxx exonerated him. 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.

In his original complaint filed in July 2023, Cruz alleged the officer defendants in his wrongful conviction case manipulated and pressured a witness to falsely identify Cruz as one of the shooters; suppressed exculpatory evidence, including eyewitness statements that the shooters, unlike Cruz, were Black; fabricated false police reports, and "purposefully failed to investigate the shooting and identify the actual perpetrators."

City lawyers in their motion to delay testing of the documents said that the “plaintiff did not provide any factual basis to support his contention that any document was ‘materially altered.’”

City lawyers are also attempting to depose Kim Foxx in the case as she engaged in a one-on-one meeting with Cruz in Stateville prison a few months prior to his release. Foxx told Cruz when they met that he was getting out.

The defense said that the meeting waived process privilege, or the shielding of internal government agency information.

 “…she [Foxx] engaged in communications directly with Mr. Cruz,” Lisa Meador, an attorney representing the city, said in earlier discussion of the case, “and we believe that there's substantial deliberative process privilege waived, and so, you know, there's a lot of confusion on our part as to what the intent is on exactly the deliberative process privilege to be raised here, if I can just add that.”

Meadors added that they were working with Foxx’s office to resolve the dispute.

The case is before U.S. District Magistrate Judge Gabriel Fuentes.