Chicago City Wire

Cook County State’s Attorney Kim Foxx is asking a federal judge to quash a subpoena for her to be deposed in the Jose Cruz wrongful conviction case.

The subpoena cites a conversation Foxx had with Cruz, convicted of a 1993 murder, in the Statesville Correction Center just two months before she exonerated him, and he walked away a free man—a conversation that may have violated a state Supreme Court rule covering communications with another attorney’s client.

The Foxx motion argues that the prison meeting was inconsequential, but a video posted on the State’s Attorney’s own website shows Cruz describing the meeting including that Foxx told him he would be going home soon.

“…there is absolutely no value in forcing the State’s Attorney to appear for a deposition in this matter,” the Foxx motion argues. “Nothing about this conversation, where the State’s Attorney told Plaintiff she recognized his name and that his case was under review, is relevant to the outcome of Plaintiff’s claims against the Defendants. Defendants have been unable to articulate how this evidence is relevant to any claim or defense in the case.”

“Incredibly,” the motion continues, “the Defendants have also suggested that they intend to use this short conversation as a wedge to learn the State’s Attorney’s knowledge and deliberations with respect to the decision to vacate the conviction, evidence clearly protected by the deliberative process privilege.”

Deliberative process privilege shields the decision-making process of a government agency from civil litigation. But some former assistant prosecutors contacted by Chicago City Wire said that Foxx surrendered that privilege when she spoke to Cruz during their meeting that his case was being reviewed by her office.

The Foxx motion also cites a July 13, 2022 Chicago Tribune report in an apparent attempt to downplay the meeting. The report characterized the meeting as “an astonishing coincidence.”

However, Cruz’s version of events, detailed in the video on the State's Attorney's website, is different.

Cruz said that he gained access to the ceremony where Foxx was speaking with the help of a prison chaplain and happened to meet Foxx by a water fountain.

In the meeting, Foxx told Cruz that just the day before, her office had discussed his post-conviction review case.

Cruz said he met Foxx again by the door at the conclusion of the ceremony.

“She called me over,” Cruz said. “Gave me a hug and said, ‘God bless you; you’re coming home.’”

In her motion, Foxx is also arguing that she is protected by the Apex Doctrine, which gives the court discretion to prevent or limit the deposition of high-level officials in certain circumstances. In arguing it, she claimed she simply told Cruz to “hold on tight.”

"Moreover," the motion states, "Defendant Officers can ask Cruz himself or Cruz’s criminal lawyer, who talked to the State’s Attorney shortly after her meeting with his client. Thus, there are alternate sources for the information sought, and as such the second element fails on this ground as well."

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