Chicago City Wire

U.S. Magistrate Judge Gabriel Fuentes rejected a motion by defense attorneys to re-depose convicted murderer Jose Cruz in his wrongful conviction lawsuit brought after former Cook County State’s Attorney Kim Foxx exonerated him in 2022 of a 1993 gang-related murder.

Defense attorneys representing former Chicago detectives and Cook County prosecutors provided the judge with a list of 13 questions they wanted to ask Cruz that they were prohibited from asking during a September deposition.

The questions surround some of the information provided by Cruz during his September deposition that was not included in his first amended complaint (FAC) against the detectives, prosecutors and the City of Chicago.

“The FAC contains an actual innocence claim by Plaintiff,” Judge Fuentes noted in his order denying the motion by the defense.  “In addition, although the FAC contains no mention of it, Plaintiff referred at his deposition to misconduct by unnamed officers, involving an evidence-planting claim concerning: (1) a gang ‘constitution’ he said was planted on his person, (2) a photo of him flashing a gang sign; he says this was planted in his aunt’s basement, and (3) an alleged illegal search of his aunt’s house, leading to the seizure of the photo.”

The judge added that “the core of the Motion to Re-Depose argues that a party in litigation may not disclose portions of privileged communications with an attorney to gain a tactical advantage in the litigation (i.e., the sword) and then shield from disclosure other privileged communications on the same subject matter when the adversary seeks to discovery them to defend against the sword.”

Still, the judge rejected the motion by the defense saying that “the court does not see fairness under the circumstances as requiring anything close to the broad privilege waiver Defendants seek, or to the asserted waiver of some of Plaintiff’s communications with still more of his attorneys…”

Cruz was serving a 90-year-sentence for the 1993 murder of Atwane Douglas when Foxx in 2022 granted him a controversial exoneration. 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 June 2022, just before Cruz’s exoneration, Foxx visited him in Stateville prison where he was serving his time. 

In a video posted on the State’s Attorney’s website, Cruz said that the visit was the result of a chance encounter. 

Foxx was at the prison that day to speak to graduates of the North Park University School of Restorative Arts. Cruz said that he gained access to the ceremony with the help of a prison chaplain and happened to meet Foxx by a water fountain.

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

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 going home.’”

A month later Cruz walked out of Stateville a free man.

Foxx’s discussion of the case with Cruz was a violation of Illinois Supreme Court rules covering communications with another attorney’s client, former assistant prosecutors said about the meeting. 

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.”