Chicago City Wire

Attorneys for the defendant police officers in Arnold Day’s federal wrongful conviction case accused Day’s legal team at Loevy & Loevy of violating a standing court order related to summary judgment filings—an issue they claim the firm has been previously warned about in other cases.

In their July 30 motion, lawyers for the officers, including retired Detective Kenneth Boudreau, wrote that U.S. District Judge Sara Ellis should “strike and disregard” Day’s State of Additional Material Facts (SOAF) related to a motion for partial summary judgement [ruling before trial] filed by Boudreau and three others.

Day’s SOAF “not only violates the Court’s Standing Order on Summary Judgment Practice (the “Standing Order”) but it also ignores the repeated warnings directed at the law firm representing Plaintiff – Loevy & Loevy,” the motion said.

At issue are facts included in the SOAF that are not in dispute.

The lawyers cite numerous other examples involving Loevy & Loey, including the case of Johnson v. Guevara where the “Court sternly admonishes Johnson for filing his voluminous statement of disputed facts…without due regard to the Court’s summary judgment procedures…[t]he Court warns Johnson that future instances of noncompliance with the Court’s procedures will result in sanctions, up to and including, dismissal of this case”).

Defense lawyers wrote that the “tactic employed by Loevy & Loevy in this case–submitting an unnecessarily long, repetitive and improper statement of additional facts in violation of Local Rule 56.1 (rules governing summary judgement notions)– is not new, unique to this case or a mistake. Indeed, the same violations have been identified in multiple other cases involving Loevy & Loevy.”

Day filed his wrongful conviction lawsuit in November 2011 nearly a year after then Cook County State’s Attorney exonerated him for the 1991 murder of Jerrod Erving. He spent 26 years in prison.

In the case, a Certificate of Innocence (COI) granted to Day in April 2019 was vacated a month later by the same Cook County judge who originally granted it. Lawyers familiar with the case said he referred it to another judge for final determination.  

Lawyers for Kenneth Boudreau—Eileen Rosen, Patrick Moran and Brittany Johnson of Rock Fusco & Connelly LLC—argued in a reconsideration motion that Day’s COI was “rubber-stamped;” no evidence was ever presented to show that he was innocent of the murder. They also argued that before and after his arrest in 1992 Day denied that Boudreau had ever mistreated him.

Boudreau has also repeatedly denied ever physically abusing or intimidating Day.

The motion further said that the “driving purpose of a COI is to permit its bearer to sue the government for damages.” But to gain that right the petitioner must prove his “actual innocence by preponderance of evidence.”