477
 1                IN THE UNITED STATES DISTRICT COURT
                     NORTHERN DISTRICT OF ILLINOIS
 2                          EASTERN DIVISION
 3   ADAMS, et al.,               ) Docket No. 94 C 5727
                                  )
 4               Plaintiffs       )
                                  )
 5         v.                     ) Chicago, Illinois
                                  ) March 7, 1996
 6   THE CITY OF CHICAGO,         ) 11:20 o'clock a.m.
                                  )
 7               Defendant        )
 8
 9                               VOLUME IV
                           TRANSCRIPT OF TRIAL
10                BEFORE THE HONORABLE JOHN A. NORDBERG
                      UNITED STATES DISTRICT JUDGE
11
     APPEARANCES:
12
     For the Plaintiffs:        LAW OFFICES OF KENNETH N. FLAXMAN
13                              By:  MR. KENNETH N. FLAXMAN
                                122 South Michigan Avenue, Suite 1850
14                              Chicago, Illinois  60603
15   For the Defendant:         CITY OF CHICAGO
                                By:  MS. SHONA B. GLINK
16                                   MS. DARKA PAPUSHKEWYCH
                                     MR. JAY KERTEZ
17                              30 North LaSalle Street, Suite 1020
                                Chicago, Illinois  60602
18
19
     Court Reporter:            Carol Matz
20                              343 South Dearborn Street, Suite 319
                                Chicago, IL  60604
21
22
23
     Proceedings recorded by mechanical stenography, transcript
24   produced by computer.
25
                                                            478
 1             THE COURT:  All right, are we set --
 2             MR. FLAXMAN:  Yes.
 3             THE COURT:  -- to call the next witness in the
 4   plaintiffs' case in chief?
 5             MR. FLAXMAN:  The next witness is Commissioner Carr.
 6               GLENN CARR, PLAINTIFFS' WITNESS, SWORN
 7             THE COURT:  Counsel, you may proceed.
 8                         DIRECT EXAMINATION
 9   BY MR. FLAXMAN:
10   Q.  Could you state your name and spell your last name, please.
11   A.  My name is Glenn Carr.  C-a-r-r.
12   Q.  And are you the Commissioner of Personnel of the City of
13   Chicago?
14   A.  Yes, I am.
15   Q.  Could you briefly explain what your role is, what your
16   position is as Commissioner.
17   A.  As Commissioner of Personnel I am the chief administrative
18   officer of the Department of Personnel for the City.
19             We employ approximately 100 employees in that
20   department, and we have the responsibility of -- of accepting
21   applications for employment, assessing qualifications of
22   candidates, referring to various City departments lists of
23   individuals for consideration for hire, and maintaining
24   employment records for incumbent City employees.
25   Q.  Were you involved in preparation of the 1993 Police
                                                            479
 1   Sergeant's promotional test?
 2   A.  My department was.
 3   Q.  Were you personally involved?
 4   A.  Well, not in preparing the list, no.
 5   Q.  Were you personally involved in preparing the test?
 6   A.  No.
 7   Q.  Were you involved in the decision that the test would
 8   consist of three parts?
 9   A.  No.
10   Q.  Were you involved in certifying a list that was prepared
11   from the results of that test?
12   A.  Yes, I was.
13   Q.  And what did you do in certifying the list?
14   A.  There is a process by which a list of -- of prospective
15   promotions or individuals who would be promoted would be
16   prepared by my Employment Services Division and brought to me
17   for signature and subsequent referral to the Police Department.
18   Q.  And do you recall when it was that you affixed your
19   signature to certify the promotional roster prepared from the
20   1993 Sergeant's test?
21   A.  No, I don't.
22   Q.  Was that shortly before promotions were actually made from
23   that list?
24   A.  I'm sure it was.
25   Q.  Now, are you familiar with the procedure for promotions in
                                                            480
 1   filling vacancies in the Chicago Police Department?
 2   A.  I wouldn't say that I'm familiar with them, no.
 3   Q.  Have you ever been familiar with them?
 4   A.  Perhaps I'm having trouble with the word "familiar."
 5   Q.  Well, is it correct that in order for there to be an
 6   officially recognized vacancy in the Chicago Police Department
 7   there must be the coalescence of three factors; the first is
 8   that there must be an unoccupied budget line, the second is
 9   that the Budget Department must confirm that the City has
10   sufficient funds to support that budget line, and, three, the
11   Police Superintendent must determine that there is an
12   operational need to fill the unoccupied budget line?  Is that
13   correct?
14   A.  That's correct.
15   Q.  And is it also correct that if any of these requirements is
16   missing there is no officially recognized vacancy in the
17   Chicago Police Department?
18   A.  I'm not sure that that's an accurate representation.  I'm
19   not personally aware of circumstances where there may have been
20   exceptions, but I suspect there may have been.
21   Q.  Okay.  Let me show you the second page of what's previously
22   been marked as Plaintiffs' Exhibit 49.  And is that your
23   signature?
24   A.  This is my signature, yes.
25   Q.  And is Plaintiffs' Exhibit 49 an affidavit that you signed
                                                            481
 1   to be submitted in the case pending in this court known as
 2   Deveraux, D-e-v-e-r-a-u-x, versus City of Chicago?
 3   A.  That's correct.
 4   Q.  And in that affidavit did you write that you are familiar
 5   with the procedure for promotions in filling vacancies in the
 6   Chicago Police Department?
 7   A.  Yes, I did.
 8   Q.  And then in paragraph 3 did you write that if any of these
 9   requirements -- and requirements refer to the three
10   requirements we discussed before -- is missing there is no
11   officially recognized vacancy in the Chicago Police Department?
12   A.  I did.
13   Q.  Now, back in 1992 is it correct that the City of Chicago
14   decided to stop using the results of the 1988 Police Sergeant's
15   list for making promotions?
16   A.  Yes.
17   Q.  And is it also correct that the City did not make any
18   promotions to sergeant in 1992?
19   A.  Correct.
20   Q.  And in 1992, when the City did not make any promotions to
21   sergeant, do you know whether or not the number of budgeted
22   positions for sergeant decreased?
23   A.  No, I don't.
24   Q.  Do you know whether the City did not have enough funds to
25   hire sergeants?
                                                            482
 1   A.  No.
 2   Q.  Do you know if the Police Superintendent determined -- did
 3   not determine that there was a need to add sergeants in 1992?
 4   A.  No, I don't.
 5   Q.  Okay.  Now, do you know if the City of Chicago made any
 6   promotions to sergeant in 1993?
 7   A.  I believe they did not.
 8   Q.  Okay.  And do you know why that was?
 9   A.  I don't recall.
10   Q.  Okay.  Well, is it correct that in 1993 there were no
11   officially recognized vacancies in the Chicago Police
12   Department rank with police sergeant?
13   A.  I'd like to go back to the previous question.  As I re- --
14   I believe there was some court order to the effect that there
15   would be no further promotions off the list over several years.
16   Q.  Well, could you take a look at Plaintiffs' Exhibit 49 and
17   just maybe read that and see if that refreshes your
18   recollection.
19             MS. PAPUSHKEWYCH:  I'm sorry, what number are you
20   referring to?
21             MR. FLAXMAN:  49.
22   BY THE WITNESS:
23   A.  Yes, there was a legal interpretation.
24   BY MR. FLAXMAN:
25   Q.  Okay.  So what happened is that the City decided that it
                                                            483
 1   would not use the 1988 Police Sergeant's list to make further
 2   promotions until it had a new list --
 3   A.  Correct.
 4   Q.  -- is that right?
 5   A.  Uh-huh.
 6   Q.  And one of those reasons was a concern about the Civil
 7   Rights Act of 1991?
 8   A.  That is correct.
 9   Q.  And one of the results of that is that the City did not
10   have any officially recognized vacancies in the position of
11   sergeant in 1992 and 1993?
12   A.  Correct.
13   Q.  And the first promotions, the first officially recognized
14   vacancies occurred when promotions were made from this 1993
15   test, is that right?
16   A.  As far as I know.
17   Q.  And that was about August of 1994?
18   A.  Correct.
19             MR. FLAXMAN:  Thank you.  I have nothing further.
20             MS. PAPUSHKEWYCH:  I have no questions of the
21   Commissioner.
22             THE COURT:  All right.  Thank you very much.  That
23   concludes your testimony.
24             THE WITNESS:  Thank you, your Honor.
25        (Witness excused)
                                                            484
 1             THE COURT:  Let's call the next witness.
 2             MR. FLAXMAN:  Robert Joyce, your Honor.
 3             ROBERT JOYCE, PLAINTIFFS' WITNESS, SWORN
 4             THE COURT:  Counsel, you may proceed.
 5                         DIRECT EXAMINATION
 6   BY MR. FLAXMAN:
 7   Q.  Could you state your name, please, and spell your last
 8   name.
 9   A.  Robert Joyce.  J-o-y-c-e.
10   Q.  And are you the -- a Deputy Commissioner in the City of
11   Chicago Department of Personnel?
12   A.  I am a Deputy Commissioner in the Department of Personnel,
13   yes.
14   Q.  How many deputies are there?
15   A.  Three.
16   Q.  As part of your responsibilities do you oversee the
17   development, administration and scoring of career service
18   promotional testing for uniform positions in the Chicago Police
19   Department?
20   A.  Yes.
21   Q.  And have you held that position since 1981?
22   A.  Yes.
23   Q.  Before becoming Deputy Commissioner -- did you become a
24   Deputy Commissioner in 1981?
25   A.  Yes, I believe that was the year.
                                                            485
 1   Q.  Before becoming -- immediately before becoming a Deputy
 2   Commissioner did you hold the position of Manager of Employment
 3   Services?
 4   A.  Yes.
 5   Q.  And did you have similar responsibilities?
 6   A.  Yes.
 7   Q.  Have you ever been involved in preparing a police
 8   promotional test?
 9   A.  Yes.
10   Q.  How many police sergeant promotional tests have you been
11   involved in preparing?
12   A.  Two that come to mind.
13   Q.  When was the first one?
14   A.  In 1978, I believe.
15   Q.  When was the second one?
16   A.  In 1985.
17   Q.  Were either of those tests prepared with the assistance of
18   an outside consultant?
19   A.  Yes.
20   Q.  Which one?
21   A.  The one that began in 1985.
22   Q.  And was Dr. Barrett involved in that effort?
23   A.  No.
24   Q.  Now, in the test that you were -- the sergeant promotional
25   test in which you've been involved, did those tests begin with
                                                            486
 1   a job analysis?
 2   A.  Yes.
 3   Q.  And did the job analysis involve talking to a
 4   representative sample of incumbent sergeants?
 5   A.  I'm having difficulty remembering exactly how we did it in
 6   '78.  But in the '85 job analysis we did interview incumbents
 7   and do ride-alongs.
 8   Q.  And did you talk to higher-ranking officers also?
 9   A.  Yes.
10   Q.  And did you get a pretty good picture of the kind of work
11   that a Chicago Police Sergeant does?
12   A.  I believe we did.
13   Q.  Did you ever conclude that the job of police sergeant is
14   viewed differently by minority police sergeant than by white
15   police sergeants?
16   A.  There -- we did -- part of our job analysis did look at
17   that, and there was a certain amount of indication that that
18   could be true.
19   Q.  That what could be true?
20   A.  That the job of sergeant, or the essential -- or the most
21   important functions of the job weren't unanimously agreed upon
22   by all participants.
23   Q.  And by not -- by a lack of unanimous agreement do you mean
24   that black sergeants did the job differently than white
25   sergeants?
                                                            487
 1   A.  I don't recall that it was that they did the job
 2   differently.  I believe it was more in the context of what they
 3   saw as the most important aspects of the job.
 4   Q.  And did you do any statistical tests with this data?
 5   A.  At present I don't recall.
 6   Q.  Well, was this data sufficient for you to conclude that
 7   there were actual differences in the job as it's viewed by
 8   incumbent white sergeants and incumbent black sergeants?
 9             MS. PAPUSHKEWYCH:  Objection as to foundation.  That
10   hasn't been established that that was a conclusion by Deputy
11   Joyce.
12             THE COURT:  Well, I believe he's asking him whether
13   that conclusion was drawn.
14             Do you understand the question?
15             THE WITNESS:  If he could repeat it I'd appreciate
16   it.
17             THE COURT:  All right, why don't you restate the
18   question.
19             I'll overrule the objection.
20   BY MR. FLAXMAN:
21   Q.  When you did the job interviews of incumbent sergeants for
22   the 1985 test did you gather data?
23   A.  Yes.
24   Q.  And that data consisted of answers to interview questions?
25   A.  I'm sure there were interview questions.  But the job
                                                            488
 1   analysis was more -- the data was more collected via
 2   questionnaire.
 3   Q.  And when you collected that data via questionnaire did you
 4   know the race of the person who provided the data?
 5   A.  I don't know.
 6   Q.  Well, did you analyze the data to see if there were
 7   differences in the job the way it's viewed by white sergeants
 8   and black sergeants?
 9   A.  Yes.
10   Q.  And from that analysis of the data did you conclude that
11   there were significant differences in the way the job of police
12   sergeant is viewed by black sergeants and white sergeants?
13   A.  I would not characterize it as significant in my opinion.
14   But -- but there were different views in terms of relative
15   importance of certain functions.
16   Q.  Did the black sergeants think that some activities were
17   more important than the white sergeants as a group?
18   A.  Yes.
19   Q.  Okay.  Now, was the job analysis, in your opinion, in the
20   1985 test thorough?
21   A.  Yes.
22   Q.  Was it complete?
23   A.  Yes, I believe it was.
24   Q.  Was it undertaken in a professional manner?
25   A.  Yes.
                                                            489
 1   Q.  Now, in addition to having worked for the City of Chicago,
 2   do you belong to any professional organizations that relate to
 3   test development?
 4   A.  Yes, I do.
 5   Q.  Could you tell us briefly what those organizations are.
 6   A.  International Personnel Management Association, which is
 7   a -- a general personnel organization, the International
 8   Personnel Management Association Assessments Council, which is
 9   a -- a branch of that organization -- of the larger
10   organization that deals specifically with testing and selection
11   issues --
12             THE COURT:  What was the title of that again?
13             THE WITNESS:  International Personnel Management
14   Association Assessments Council.  IPMAAC is the shorthand name.
15   BY MR. FLAXMAN:
16   Q.  Any other organizations?
17   A.  We have become a little bit inactive right now, but there
18   is another organization called the Great Lakes Assessment
19   Council that was comprised of -- of persons like myself who
20   have an interest in selection and -- and testing, mainly
21   focused around the midwest cities and states represented.
22   Q.  Do you read any professional literature concerning test
23   development?
24   A.  Yes.
25   Q.  Could you tell us briefly what it is you read.
                                                            490
 1   A.  Oh, a variety of things.  IPMAC puts out a periodical news
 2   letter and IPMA puts out periodical monographs.
 3             I've read books or chapters of books that deal with
 4   selection issues and measurement issues, reports by
 5   organizations that are interested in the, you know issues, of
 6   testing for selection.
 7   Q.  Now, after you did the job analysis for the 1985 Sergeant's
 8   test did you then turn to the question of what type of test
 9   should be developed?
10   A.  Yes.
11   Q.  Did you decide on the type of test after you had completed
12   the job analysis?
13   A.  Well, actually, we began that process, doing the job
14   analysis, towards the end of that process.
15   Q.  Well, just so we're clear, when you started doing the job
16   analysis did you know that the test would consist of three
17   particular subtests that would be graded in a certain way?
18   A.  Not at the start, no.
19   Q.  And at some point you decided what the test would consist
20   of?
21   A.  Yes.
22   Q.  And did you decide that it would consist of three portions?
23   A.  Well, actually, I would call it four portions.
24   Q.  And could you tell us what they were.
25   A.  There was a written multiple choice examination, a
                                                            491
 1   traditional multiple choice paper and pencil.  There was what
 2   we called a written short answer which required the test takers
 3   to fill out brief responses to questions.  It could be words or
 4   phrases or short sentences.  There was an oral -- a structured
 5   oral interview panel.  And then there was a segment for
 6   administrative performance in their present rank as police
 7   officers.
 8   Q.  Now, when you say administrative performance in their
 9   present rank as police officers does that mean that you were
10   using someone's performance rating?
11   A.  That's correct.
12   Q.  Are there performance ratings that are used in the Police
13   Department of the City of Chicago?
14   A.  I believe they're still in use, yes.
15   Q.  And are you familiar with the way in which persons can
16   become D-2 rank in the Police Department?
17   A.  Generally speaking, yes.
18   Q.  And is there -- was one way to become a D-2 rank to take a
19   test?
20   A.  Yes.
21   Q.  And is there any requirement that you have certain --
22   attained a certain level in your performance ratings before
23   you're permitted to take the test to D-2 rank?
24   A.  I don't know that.
25   Q.  You're not aware of any requirement that you have a
                                                            492
 1   performance rating of 80 on three of your last four performance
 2   ratings?
 3   A.  I don't have personal knowledge of that.
 4   Q.  The performance ratings are given out twice a year, is that
 5   right?
 6   A.  When I was last familiar with them that was twice a year.
 7   Q.  Okay.  Now, in the 1985 test, though, you talked about your
 8   traditional multiple choice, written traditional multiple
 9   choice.  What did you mean by traditional?
10   A.  Well, there -- there was a question and several possible
11   alternative correct answers.  The candidate is to pick what
12   they believe to be the correct answer and transfer that
13   information onto a machine scorable answer sheet.
14   Q.  Was this a test of job knowledge?
15   A.  Yes.
16   Q.  It wasn't a test of who's the president of the United
17   States or miscellaneous knowledge like that, was it?
18   A.  I believe it was related to job knowledge for the position,
19   yes.
20   Q.  And isn't it correct that each question on that 1985
21   Sergeant's test related to a general order, a special order,
22   some other Police Department regulation, or Illinois statute,
23   or the City of Chicago Municipal Code?
24   A.  That's correct.
25   Q.  Now, after you -- now, the oral interview panel, could you
                                                            493
 1   explain what that consisted of in the 1985 test.
 2   A.  Well, the Department of Personnel and the Police Department
 3   identified command rank persons within the Chicago Police
 4   Department.  The Department of Personnel trained them in how
 5   the oral interviews were to be conducted, familiarized them
 6   with the questions to be asked and the keyed correct answers or
 7   proposed correct answers, as well as the scoring mechanism.
 8             The candidates who applied for and took the written
 9   portion of the test were -- were then invited for the oral
10   interview portion, which was held on a different date.
11   Q.  How many people took the oral interview portion, about?
12   A.  I at this point could only really guess.
13   Q.  Well, is it more than 2,000?
14   A.  I believe it would be more than 2,000.
15   Q.  Now, did the oral interview portion involve the ability to
16   understand what was spoken to you as the test taker?
17             Let me rephrase the question.  At the oral interview
18   panel was the police officer who wanted to be a sergeant asked
19   questions?
20   A.  Yes.
21   Q.  And the police officer then answered those questions?
22   A.  That's correct.
23   Q.  Now, after these three or four components of the 1985
24   Sergeant's test had been decided upon did you do any work to
25   determine the extent to which these four subtests fully
                                                            494
 1   reflected the job of police sergeant?
 2   A.  Well, by the way the test is constructed we attempted to --
 3   to measure those things that were deemed to be important for
 4   the job if in fact they were measurable in some way or another.
 5   Q.  Well, did you ever try to determine whether the items on
 6   the test fully reflected the tasks and the knowledges, skills
 7   and abilities that were important to the job of sergeant and
 8   that were capable of being tested for?
 9   A.  Yeah.  Yes, I believe that each of the questions was linked
10   back to either a knowledge, skill, or ability or an important
11   task.
12   Q.  Well, did you ever try to show whether -- well, how was the
13   final score -- well, strike that.
14             Did you ever conclude that someone who received a
15   higher score on the job knowledge test back in 1985 would do
16   better as a police sergeant than somebody with a lower score?
17   A.  In a very general sense I agree with that, yes.
18   Q.  Did you ever gather any data for that?
19   A.  Not that I can recall.
20   Q.  And, as a matter of fact, did you conclude that the
21   Sergeant's test -- that the results of the Sergeant's test
22   could not show those aspects of performance that differentiate
23   among levels of job performance?
24   A.  I don't recall having said that.
25   Q.  Well, did you ever say that "We cannot determine" --
                                                            495
 1             MS. PAPUSHKEWYCH:  Can we get a reference from
 2   counsel?
 3             MR. FLAXMAN:  Well, I think when I show it to him, if
 4   he doesn't admit or agree with it --
 5             THE COURT:  I take it you have a background knowledge
 6   of this so that the questions you're asking relate to something
 7   that there's some record or support for or this is not coming
 8   out of your fertile imagination?
 9             MS. PAPUSHKEWYCH:  I hope not.
10             MR. FLAXMAN:  No, Judge.
11             THE COURT:  All right, you may proceed.
12   BY MR. FLAXMAN:
13   Q.  Did you ever state that "We cannot determine or claim that
14   scores within a few points of each other accurately distinguish
15   candidates on the basis of their qualification for promotion"?
16   A.  I have made that statement.  I don't know if it was in the
17   context of police sergeant.
18   Q.  Have you made it in the context of a police promotional
19   test?
20   A.  I --
21             MS. PAPUSHKEWYCH:  The witness has testified that he
22   does not know what context it is.
23             If Mr. Flaxman can refresh the witness's recollection
24   as to what the context is --
25             THE COURT:  I think he's well aware of that.  And
                                                            496
 1   you're going to have the opportunity on cross examination, as
 2   well, to deal with it.  So I'll let counsel on each side
 3   present their cases the way they wish.
 4             I'm also well aware that I don't expect a witness to
 5   remember everything they've ever said leading up to today's
 6   date.  So --
 7   BY MR. FLAXMAN:
 8   Q.  Do you remember the last question?
 9   A.  I believe I answered it.
10   Q.  Well, the last question was:  Do you recall saying that
11   about any police promotional test?
12   A.  Oh, I'm sorry.  As I said, I do recall making that
13   statement, and probably on more than one occasion, but I cannot
14   specifically identify which type of examination I was making
15   reference to.
16   Q.  Well, did you ever try to argue that the results of the
17   1985 Sergeant's test could be used for rank order promotions?
18   A.  No.
19   Q.  And why was that?
20   A.  In my opinion, the results used in strict rank order would
21   have caused an adverse impact that would have concerned me.
22   Q.  And in the 1985 Sergeant's test you were -- did you have
23   significant responsibility for preparation of the test?
24   A.  Yes, I did.
25   Q.  What, were you like in command?
                                                            497
 1   A.  I was the ultimate decision maker, if you might put it that
 2   way.
 3   Q.  Were you the ultimate decision maker on the 1993 sergeant's
 4   promotional test?
 5   A.  No, I was not.
 6   Q.  Who was?
 7   A.  I'd have to say it was -- that responsibility was housed in
 8   several people in several departments.
 9   Q.  Who are they?
10   A.  I probably couldn't name all of them.  But the Mayor's
11   Office, the -- a representative from the Mayor's Office, the
12   consultants themselves, the -- the -- in a sense, the blue
13   ribbon panel was -- was given deference because of the
14   recommendations they made as to how the testing process should
15   go forth.
16   Q.  Well, was there one ultimate decision maker in the 1993
17   test, to your knowledge?
18   A.  I don't know.
19   Q.  Do you know who would know?
20   A.  No, I don't.
21   Q.  Well, were you involved in preparing the announcement for
22   the 1993 Sergeant's test?
23   A.  My staff was, so, therefore, it came under my
24   responsibility.
25   Q.  Did you review it before it went out to be printed?
                                                            498
 1   A.  Yes.
 2   Q.  When you reviewed it did you know that the test was going
 3   to consist of three parts?
 4   A.  Yes.
 5   Q.  Did you know that one part would be a written test of job
 6   knowledge?
 7   A.  Yes.
 8   Q.  And, based on your experience in the City of Chicago, did
 9   you expect that a written test of job knowledge for police
10   promotions would have a significant disparate impact on
11   minorities?
12   A.  No, I didn't expect that.
13   Q.  Did you ever learn that the written test did have that
14   significant disparate impact on minorities?
15   A.  Yes.
16   Q.  And how many written job knowledge tests have you been
17   involved with in police promotions or have you been -- or are
18   you aware of that have been used in police promotions in the
19   City of Chicago?
20   A.  Very roughly, 10.
21   Q.  And isn't it true that each one of those written tests of
22   job knowledge when scored for ranking has had a disparate
23   impact on minorities?
24   A.  I don't believe that's the case.
25   Q.  Well, is there one exception?
                                                            499
 1   A.  I -- I believe I recall an instance where -- a police
 2   captain examination where the -- the -- there was not a
 3   disparate impact or adverse impact on the written multiple
 4   choice test scores.
 5   Q.  Other than the police captain's examination, have you ever
 6   seen a -- in the City of Chicago a written test of job
 7   knowledge for proportions to sergeant that has not had a
 8   disparate impact on minority applicants?
 9   A.  I don't recall at present if there were.
10   Q.  But the 1985 written test did have a disparate impact on
11   minority applicants?
12   A.  The raw scores did.
13   Q.  And is that also true for the raw scores on the 1978
14   Sergeant's test?
15   A.  I suspect it did.  But I -- again, that's quite a while ago
16   and I -- I'm not quite sure.
17   Q.  Now, you're familiar with the way in which promotions have
18   been made to sergeant in the City of Chicago over the last 25
19   years, probably, is that right?
20   A.  Yes.
21   Q.  Okay.  Now, at some point there was a quota for promotions,
22   is that right?
23             If you don't recall I'll try to refresh your
24   recollection.
25   A.  Please.
                                                            500
 1   Q.  Okay.  Do you remember back in 1976 Judge Marshall ordered
 2   that 40 percent of promotions go to African-American and -- I
 3   think African-American and Hispanic police officers?
 4   A.  Yes, I believe I remember that.
 5   Q.  And those in that -- in 19- -- sometime thereafter the
 6   Court of Appeals ordered that that quota be reduced so that 25
 7   percent of the promotions went to minorities?
 8             Is that your recollection?
 9   A.  It depends on how you define minority.
10   Q.  Well, okay.  But that quota was reduced pursuant to the
11   Court of Appeals, is that right, as far as you know?
12   A.  Again, reduced minorities you'd have to define.
13   Q.  Okay.  Now, when the City of Chicago was complying with
14   those court orders and making quota promotions how did the City
15   do that mechanically?
16   A.  As I recall, we went to the list in use at the time, which
17   was a rank order list, and we identified persons in rank order
18   that had the highest remaining scores but in a manner that
19   ensured that we would meet the -- the goal or the quota for
20   minorities and for women.
21   Q.  Is that the process that was used up until promotions were
22   first made from the 1987 or 1988 Sergeant's test?
23   A.  I actually don't recall.
24   Q.  Okay.  Well, was one consequence of using this complying
25   with the quotas that a minority officer who had a lower raw
                                                            501
 1   score on the test would be promoted over a white officer who
 2   had a higher raw score?
 3   A.  That could have happened, yes.
 4   Q.  Has the Department of Personnel ever done any analysis to
 5   see if these minorities who were promoted with lower raw scores
 6   did as well on the job as the whites who had higher scores?
 7   A.  Not to my knowledge.
 8   Q.  Now, in 1987 the City used something called the race
 9   norm -- excuse me, 1988 -- the City used something called
10   called the race norm test, is that right?
11   A.  Yes.
12   Q.  Could you explain for us what that was.
13   A.  Well, after giving the various parts of the test we
14   analyzed the raw score results, and some of the portions had a
15   statistically significant difference in mean performance by --
16   by race or ethnic group.  And it was to an extent that I felt
17   was not defensible in that it was -- it was relatively small
18   differences in practical scores but it would have had a
19   significant difference in -- in a person's promotability and
20   that that would be caused by -- and that -- I guess that --
21   that effect would go beyond my comfort level in terms of the
22   validity of the test, being able to justify that.
23   Q.  So what did you do?
24   A.  What we did was a statistical process of converting
25   everyone's scores from their own subgroup -- white, black,
                                                            502
 1   Hispanic -- to -- to a common norm so that the average scores
 2   of each of those subgroups became equal and their distribution
 3   of scores from high to low became relatively equal.  It in
 4   effect eliminates the adverse impact of the raw scores.
 5             THE COURT:  Could I ask clarification of what he
 6   means by relatively equal.
 7             I think your testimony is just to the contrary, that
 8   it was to satisfy a quota percentage.  And, if so -- I'm not
 9   quite sure what his answer is on that.
10   BY MR. FLAXMAN:
11   Q.  Well, what was the purpose of race norming?
12   A.  In my opinion, the purpose of race norming was to develop a
13   usable, good eligible list that met the various requirements of
14   federal law and professional guidelines and so forth.
15   Q.  Is it correct that the result of race norming was to -- was
16   the same as superimposing a quota on the list?
17   A.  I would not characterize it that way.
18   Q.  Well, was the practical result that of the top 200 to be
19   promoted you would have a representation of all groups that
20   mirrored the representation of the groups who applied to be
21   promoted?
22   A.  In general, yes, that's true.
23   Q.  And through race norming you would eliminate or greatly
24   minimize any disparate impact?
25   A.  That's correct.
                                                            503
 1   Q.  And is it your understanding that race norming is something
 2   that's illegal under the 1991 Civil Rights Act?
 3   A.  That is my understanding.
 4   Q.  Now, as a result of race norming did the City -- is it
 5   correct that the City of Chicago promoted African-American and
 6   Hispanic police officers who had scored lower on the test than
 7   white police officers?
 8   A.  Yes, that's correct.
 9   Q.  Do you know if the City of Chicago has done any research to
10   determine whether or not these police officers who were
11   promoted with lower scores did not -- do not perform as well as
12   on the job as the police officers with higher scores?
13   A.  I'm not aware of any such study.
14   Q.  When you -- and it was your recommendation to do race
15   norming?
16   A.  Yes, it was.
17   Q.  When you made that recommendation did you believe that it
18   would be injurious to the public safety not to be promoting the
19   people with the highest scores on the test?
20   A.  No, I did not believe that.
21   Q.  And why is that?
22   A.  Because, as I -- I mentioned briefly before, the -- the
23   practical difference in scores between the subgroups was not
24   very great -- maybe two points -- and those two or three points
25   fall within the various -- well, the measures of error in a
                                                            504
 1   test.
 2   Q.  When you say practical differences do you mean the
 3   differences in the average score on each test?
 4   A.  Yes.
 5   Q.  Now, you talked about the blue ribbon panel.  Were you a
 6   member of the blue ribbon panel?
 7   A.  No, I wasn't.
 8   Q.  Did you provide any information to the blue ribbon panel?
 9   A.  Yes.
10   Q.  Did you ever review the recommendations of the blue ribbon
11   panel?
12   A.  Yes.
13   Q.  Do you know when those recommendations were announced?
14   A.  I don't recall.
15   Q.  Do you know whether it was before or after the 1993
16   sergeant's promotional test was announced?
17   A.  I actually don't recall.
18   Q.  Is it correct that the City of Chicago does not have any
19   evidence of which you're aware in the Department of Personnel
20   that a higher score on a written test of job knowledge reflects
21   expected or actual superior performance on the job with respect
22   to police sergeant?
23   A.  Any data that reflects that?
24   Q.  Right.
25   A.  I am not aware of any.
                                                            505
 1   Q.  Do you know if the City of Chicago has made any effort in
 2   the last 26 years to obtain such data?
 3   A.  Yes.
 4   Q.  What effort has been made to obtain such data?
 5   A.  I can think of a -- a study we conducted at one time on a
 6   sergeant's examination.  I believe it was the 1973 sergeant's
 7   examination.  It was a concurrent validation study where 88
 8   pairs of present sergeants were -- were matched.  And it was a
 9   white and a nonwhite who achieved the same score on the '73
10   sergeant's examination.  And -- and their performance was later
11   on assessed as sergeants.
12   Q.  And is it correct that that 1973 concurrent validation
13   study did not provide you with evidence that a higher score on
14   a written test of job knowledge reflects expected or actual
15   superior performance?
16   A.  It -- it did have -- the correlation that you would use in
17   that case, or that we did use was -- was a -- like a predictive
18   correlation, and it did predict -- there was a correlation
19   between test score and performance on the job.
20   Q.  And that was in 1973.  Was that presented in court?
21   A.  Yes.
22   Q.  And that was rejected by Judge Marshall, wasn't it?
23   A.  I don't know if the study was rejected by Judge Marshall.
24   Q.  Well, he didn't let you use the scores to make promotions
25   from the 1973 test, did he?
                                                            506
 1   A.  Not without the quota that you made previous reference to.
 2   Q.  Well, do you remember signing an affidavit sometime in 1990
 3   in a case known as Bigby and Irwin versus City of Chicago, No.
 4   80 C 5246?
 5   A.  I frankly don't have immediate recollection of whether I
 6   did.
 7   Q.  Let me mark that as Plaintiffs' Exhibit 65.  And I hope I'm
 8   not duplicating.
 9             Is that your signature that appears on page 9?
10   A.  Yes, it is.
11   Q.  Now, if you'll look at the bottom of page 4, do you see the
12   sentence that reads "We have no evidence that a higher score
13   reflects expected or actual superior performance and I know of
14   no practical way we could obtain such evidence"?
15   A.  That's what it says.
16   Q.  Well, and when you signed this you were certifying under
17   penalties of perjury, were you not, that that this was correct?
18   A.  Yes.
19   Q.  You didn't say anything about this 1973 concurrent
20   validation study when you talked about no evidence of a higher
21   score reflects expected or actual superior performance, did
22   you -- were you?
23   A.  No.  This is in reference to the '87 exam, not the '73
24   exam.
25   Q.  Well, as you sit here now do you know of any evidence that
                                                            507
 1   a higher score on a written test of job knowledge of a police
 2   sergeant reflects expected or actual superior performance?
 3             THE COURT:  Which test are you relating it to now,
 4   the current one --
 5             MR. FLAXMAN:  The current one.
 6             THE COURT:  -- or just generally?
 7             MR. FLAXMAN:  Just generally.
 8   BY THE WITNESS:
 9   A.  I generally believe that a higher test score is -- is
10   indicative of -- of higher performance on the job.  But in
11   terms of the statistical data I -- I don't have any to provide
12   you.
13   Q.  Well, when you used the phrase -- this affidavit, was
14   this -- did you draft this yourself, Exhibit 65?
15   A.  I certainly did a lot of it.  I must have relied on my
16   staff to provide me some input in terms of numbers and so
17   forth.
18   Q.  Well, but you didn't talk about no data, you talked about
19   no evidence that a higher score reflects expected or actual
20   superior performance.
21             Do you see that at page 4 and 5?
22   A.  That's true, yes.
23   Q.  And as you sit here now is it still true that we have no
24   evidence that a higher score reflects expected or actual
25   superior performance?
                                                            508
 1             MS. PAPUSHKEWYCH:  In what exam are you talking
 2   about?
 3             MR. FLAXMAN:  On a written test of job knowledge for
 4   a police officer and reflects expected or actual superior
 5   performance as a police sergeant.
 6   BY THE WITNESS:
 7   A.  My opinion is that a written test if adequately and
 8   professionally done is -- is useful in -- in making an estimate
 9   of a person's promotional potential.  But within my -- within
10   the constraints of the power of a test and -- and -- and the
11   fact that all tests are not perfect and all test scores are not
12   perfect.
13   BY MR. FLAXMAN:
14   Q.  Well, my question, Mr. Joyce, is about evidence.  When you
15   wrote in this affidavit "We have no evidence that a higher
16   score reflects expected or actual superior performance," is it
17   true today that we have no evidence that a higher score on a
18   written test of job knowledge reflects expected or actual
19   superior performance?
20   A.  Yes, that's correct.
21             MR. FLAXMAN:  Thank you.  I have nothing further.
22             THE COURT:  All right, cross examination.
23             MS. PAPUSHKEWYCH:  Thank you.
24                          CROSS EXAMINATION
25   BY MS. PAPUSHKEWYCH:
                                                            509
 1   Q.  Referring back to your affidavit that Mr. Flaxman was just
 2   talking about in the case of Bigby versus City of Chicago,
 3   again drawing your attention to page 4, the bottom of page 4,
 4   paragraph 8, where you made the statement "We have no evidence
 5   that a higher score reflects expected or actual superior
 6   performance and I know of no practical way we could obtain such
 7   evidence."  When you made this statement you were referring to
 8   the 1987 police lieutenant examination, isn't that correct?
 9   A.  Yes.
10   Q.  And when you made this statement you were referring, were
11   you not, to the fact that at that time you had not done a
12   concurrent criterion-related study of that examination?
13   A.  That's correct.
14   Q.  And you have testified today, I think at least three times,
15   that in your opinion, based on your experience, that you
16   believe that there generally is a correlation between a higher
17   test score and performance on the job, isn't that true?
18   A.  Yes.
19   Q.  In your professional opinion, does one need to have a
20   concurrent criterion-related study in order to utilize a
21   content valid exam?
22   A.  No.
23   Q.  Are you familiar with the EEOC guidelines?
24   A.  Yes, I am.
25   Q.  And isn't it true that nothing in those guidelines require
                                                            510
 1   that?
 2   A.  That is correct.
 3   Q.  In fact, the guidelines talk about three different ways of
 4   validating examinations, isn't that true?
 5   A.  Yes.
 6   Q.  And those three ways are criterion, construct and content,
 7   isn't is that right?
 8   A.  Yes.
 9   Q.  And the guidelines -- reading the guidelines and with your
10   experience in terms of the test, there is no one particular way
11   that is better than another, is there?
12   A.  That is correct.
13   Q.  You testified that you were familiar with the area of test
14   development and that you were familiar with the literature in
15   the area.  Have you ever reviewed or read any literature
16   regarding correlation between score on a test and subsequent
17   performance on a job?
18   A.  Yes.
19   Q.  And is there literature in the field that in fact states
20   that there is a correlation between test scores and performance
21   on a job?
22   A.  Yes.
23   Q.  In your professional opinion, is there any way to determine
24   whether a difference in scores on a particular examination is
25   meaningful from a statistical viewpoint without analyzing the
                                                            511
 1   data?
 2   A.  No.  I think you'd have to analyze the data.
 3   Q.  Why is that?
 4   A.  Well, absent the statistical tests that tell us how
 5   reliable or how powerful a particular test is in terms of
 6   prediction you really -- you really can't assess it with --
 7   with much certainty.
 8             In developing a content valid test, you know, the
 9   objective is to -- is to create a test that is directly related
10   to important job functions, and a carefully crafted job
11   analysis and the content valid test approach does that.
12   Q.  And isn't it true that in order to determine whether or not
13   there is meaningful differences between scores you need to do
14   some statistical analysis, for example like the standard
15   measurement and other types of methodology?
16   A.  Yes, there are a few ways of doing it and standard error
17   measurement is one of the keystones for that.
18   Q.  Is it possible -- strike that.  It isn't possible to
19   determine whether or not the use of an examination is
20   appropriate or valid without analyzing the data generated from
21   that examination, is there.
22             MR. FLAXMAN:  Objection.  It's a compound question,
23   appropriate or valid.  I don't know if --
24             THE COURT:  All right, I'll sustain the objection as
25   to form but not the subject matter.
                                                            512
 1             If you could restate the question in the singular as
 2   opposed to compound.  You can ask him three or four questions
 3   then.
 4             MS. PAPUSHKEWYCH:  I will do that.
 5             THE COURT:  Okay.
 6   BY MS. PAPUSHKEWYCH:
 7   Q.  Is it possible to form an opinion regarding the validity of
 8   how test results are utilized without analyzing the data from
 9   those test results?
10   A.  I can think of no way how you could do it.
11   Q.  If a examination has adverse impact, does that mean it is
12   not valid?
13   A.  No.
14   Q.  And what determines whether a test is valid, in your
15   experience?
16   A.  A test is valid if it accurately measures that which you
17   intended to measure and -- and that which you intend to measure
18   is -- is logically related to performance on the job.
19   Q.  And how do you make that determination as to whether or not
20   it accurately measures performance on the job?
21   A.  As I briefly mentioned before, in -- in the content of
22   validity strategy you -- you do a very careful and complete job
23   analysis to identify what the critical components of the job
24   are, you eliminate noncritical components, and you -- you try
25   and develop a test process or processes that measure as many
                                                            513
 1   parts of the job as can reasonably be measured and combine them
 2   in a -- in a manner that reflects the job or reflects the --
 3   the relevant quality of the various portions of the test.
 4   Q.  Mr. Flaxman asked you some questions about the 1985
 5   sergeant's exam which you developed, and I would like to turn
 6   your attention to the written short answer portion.  Could you
 7   describe what that written short answer portion consisted of?
 8   A.  There are relatively few questions -- I don't remember
 9   exactly offhand -- approximately 20 questions.  They were open-
10   ended in that the -- the correct answer was not provided to the
11   candidate.
12             They were -- for example, the question may have been
13   something like what are the three -- what are three activities
14   that must be carried out at roll call, and the person from
15   their own knowledge of the job would have to recall what three
16   things are required at roll call and write them out either in a
17   phrase or in some short sentences.
18   Q.  And what were you testing with that component of the
19   examination?
20   A.  The measure of their knowledge of the job that is
21   reasonably expected to be known from recall without having
22   to -- to be prompted by a study guide or -- or refresher notes,
23   those things that -- that someone needs to know immediately
24   and -- and should not to be expected to -- to be able to go
25   back to some reference book and -- or some general order to --
                                                            514
 1   to find out what the right answer is.
 2   Q.  In that component were you also looking at it to determine
 3   anything about the candidate's ability to write?
 4   A.  Well, there was -- one of the ratings used, I believe, did
 5   cause the rater to evaluate the person's writing legibility and
 6   how understandable it was.  But -- but that was -- the focus of
 7   that was not to take points off for syntax or grammatical error
 8   or spelling mistakes.  As long as the person's response was
 9   understandable to a reasonable person and they got their point
10   across they received credit for that.
11   Q.  And did you -- after the exam was administered did you
12   analyze the results of that component?
13   A.  I did, yes.
14   Q.  And the results were somewhat disappointing in terms of
15   differentiating between candidates, weren't they?
16   A.  Yes.
17   Q.  And why was that?
18   A.  Well, the -- the test scores were skewed to the high end.
19   In other words, most persons received a perfect score or very
20   close to a perfect score.
21   Q.  And what -- how does that impact the overall use of the
22   examination when that happens?
23   A.  Well, it becomes somewhat of a constant.  It is not
24   distinguishing those superior performers from -- from average
25   or poor performers.  So the test isn't doing much to -- to make
                                                            515
 1   that distinction.  And, since it isn't making that distinction
 2   it's -- it's -- it is kind of forced into being a non-
 3   contributing factor.
 4   Q.  You testified -- I'll turn now to your testimony regarding
 5   the quotas from the 1970 litigation in front of Judge Marshall.
 6             Were you in the position of management -- I'm sorry,
 7   what was your position in the 1970s?
 8   A.  Personnel Analyst III and in the mid '70s a -- a
 9   Supervising Personnel Analyst or Assistant Supervising, and
10   then -- up till about 1977.  And in approximately '77 or '78 I
11   was named the manager of the examination services.
12   Q.  When the court ordered certain quota promotions was -- to
13   your knowledge, was anyone demoted when those promotions were
14   ordered?
15   A.  No.
16   Q.  In your experience over 20 years with the City of Chicago,
17   whenever there has been any court-ordered promotion isn't it
18   true that there have not been demotions flowing from that court
19   order?
20   A.  That is correct.  There has never been a need for a
21   demotion.
22   Q.  You testified previously that you were not very familiar
23   with the performance evaluation system of the Chicago Police
24   Department, is that correct?
25   A.  Yes.
                                                            516
 1   Q.  Why is that?
 2   A.  Well, we have relied on it less in the recent past.  In
 3   fact, when we used it on the '85 sergeant's examination it
 4   played a -- a quite minor role in the overall weighting of the
 5   fine score.
 6             Additionally, there were some -- as I recall, there
 7   were some union grievances about the -- the utility of the
 8   performance evaluation system and there were study groups,
 9   or -- and the whole process was -- was scrutinized as to try
10   and improve it.  And I don't know that anything has come from
11   that yet.  And as -- as time has gone by my -- my direct
12   knowledge of it has -- has become less and less.
13   Q.  And you also testified that you were somewhat familiar with
14   the blue ribbon panel recommendations?
15   A.  Yes.
16   Q.  And are you aware that the ribbon panel recommended that
17   we -- that the Chicago Police Department in fact hire a
18   consultant to come up with a new performance appraisal system?
19   A.  Yes, that's correct.
20   Q.  And do you know whether or not the Police Department has
21   done that?
22   A.  Actually, I do not know that.
23   Q.  In your experience with the City of Chicago in your
24   position in the Department of Personnel have you had occasion
25   to deal with the issues that arise when one utilizes
                                                            517
 1   performance evaluations as a measure or a component of an
 2   examination?
 3   A.  Yes.
 4   Q.  And have you formed an opinion as to the reliability of
 5   such measures?
 6   A.  Yes, I have.
 7   Q.  And what is your opinion?
 8   A.  Well, especially at a rank like sergeant, where -- where
 9   those competing to become sergeants -- there are 8,000
10   potential candidates -- those 8,000 candidates are rated by
11   about 1,200 sergeants.  So, very quick mathematically, one
12   sergeant rates about 7 or 8 people.  And when you have --
13             THE COURT:  I'm not sure what you mean by the word
14   rates.
15             THE WITNESS:  They actually assign the evaluation of
16   the persons' performance for those police officers under their
17   direct supervision.
18             And -- and there are about 1,200 sergeants in the
19   department and there are about 8,000 police officers.
20             THE COURT:  So you're talking about performance
21   evaluation when you say rate?
22             THE WITNESS:  Yes.  I'm sorry.
23             THE COURT:  Okay.  I understand now.  Go ahead.
24             THE WITNESS:  In fact, it's -- it's -- I believe the
25   shorthand term for it is DPR, Departmental performance rating.
                                                            518
 1             THE COURT:  Okay.
 2             MS. PAPUSHKEWYCH:  We stand corrected.
 3             THE WITNESS:  It was my error.
 4             And -- and I'm very concerned that when you have
 5   1,300 or 1,200 persons performing evaluations that -- and, even
 6   though they are doing the best job they can, there's -- it's
 7   just fraught with the probability that those ratings are going
 8   to be unreliable because 1,200 people using rather complex
 9   standards of performance, it -- it's difficult to do.
10   BY MS. PAPUSHKEWYCH:
11   Q.  And in your position as Deputy Commissioner of Personnel
12   you're aware, are you not, that many, many individuals
13   challenge performance evaluations as being too subjective?
14   A.  That's correct.
15   Q.  And isn't it also true that many individuals within both
16   the police and the fire departments specifically feel that
17   performance evaluations are based on favoritism?
18   A.  Yes, that is a very widely held opinion.
19   Q.  And isn't it also true that there is a widely held opinion
20   that performance evaluations may also be impacted by politics?
21   A.  That -- that claim is raised frequently, yes.
22   Q.  And isn't it true that in fact those claims were made in
23   front of the blue ribbon panel?
24   A.  Yes.
25   Q.  I'm going to turn your attention now to something that
                                                            519
 1   Mr. Flaxman asked you regarding merit selection procedures, and
 2   I believe it was in the context of D-1 and D-2, was his
 3   terminology.
 4             Can you please explain to me what is D-1 and D-2.
 5   A.  Those are pay grades within the Police Department.  D-1
 6   grade is primarily for police officers.  D-2 covers a number of
 7   positions, primarily detective.  But youth officers and -- and
 8   dispatch officers also are D-2.
 9             But I -- I understood the question to be in the
10   context of detectives.
11   Q.  And it is a fact, is it not, that promotions to the rank of
12   D-2 are not career service promotions?
13   A.  That is correct.
14   Q.  In fact, persons who are in the detective position still
15   maintain the rank of police officer?
16   A.  That's correct.  In fact, technically, I think the title is
17   police officer assigned as detective or police officer assigned
18   as youth officer.
19   Q.  And isn't it also true that merit promotions within the D-2
20   ranks are made at approximately 20 percent of every promotional
21   order?
22   A.  Yes, I believe that's the case.
23   Q.  And isn't it true that until recently it was 10 percent?
24   A.  That is correct.
25             THE COURT:  I think I don't -- I don't understand
                                                            520
 1   that.  So if you can clarify it.
 2             MS. PAPUSHKEWYCH:  Oh.  Well, let me clarify that.
 3             THE COURT:  Yeah.
 4   BY MS. PAPUSHKEWYCH:
 5   Q.  Did you know whether or not -- well, strike that.  How
 6   long, to your knowledge, has the Police Department utilized a
 7   merit selection process to the rank of detective?
 8   A.  I can't say with certainty.  It's probably been at least 10
 9   years.
10   Q.  And over the last 10 years has the percentage changed in
11   terms of how many of those promotions are based on merit as
12   opposed to examination?
13   A.  Yes.
14             THE COURT:  Oh, okay.  That's what I didn't
15   understand.
16             MS. PAPUSHKEWYCH:  I'm sorry.
17             THE COURT:  Merit being a job performance evaluation?
18             MS. PAPUSHKEWYCH:  I'm going to clarify that.
19             THE COURT:  Okay.  All right.
20   BY MS. PAPUSHKEWYCH:
21   Q.  Now, merit selection is not based strictly on performance
22   evaluations, is it?
23   A.  No.
24   Q.  Do you know the what the merit selection process is within
25   the Police Department?
                                                            521
 1   A.  Not completely.  But it is a review of -- of the complete
 2   history and performance and work output of -- of the person who
 3   is wishing to be appointed.
 4   Q.  And isn't it true that the nominations in fact are made by
 5   supervisory personnel in the Police Department?
 6   A.  Yes, that's correct.
 7   Q.  And isn't it true that there is an academic selection board
 8   that was instituted by the Superintendent that reviews those
 9   nominations?
10   A.  Yes, that's true.
11   Q.  And isn't it also true that the merit selection board takes
12   a look at commendations?
13   A.  Yes.
14   Q.  And isn't it also true that the merit selection board looks
15   at academic credentials?
16   A.  Yes.
17   Q.  And isn't it also true that the merit selection board looks
18   at specialized training?
19   A.  That's correct.
20   Q.  And isn't it also true that the merit selection board looks
21   at things such as disciplinary records?
22   A.  Yes.
23   Q.  And is there anything else that you know that they review?
24   A.  I can't think of anything at present.
25   Q.  But it's clear that they do not just base it on a
                                                            522
 1   performance rating, isn't this true?
 2   A.  That's correct.
 3             THE COURT:  But they don't take any special exam for
 4   this promotion?
 5             MS. PAPUSHKEWYCH:  That's correct, your Honor.
 6             THE COURT:  Okay.
 7   BY MS. PAPUSHKEWYCH:
 8   Q.  The merit selection process is outside any examination
 9   process for the detective position, isn't that right?
10   A.  Yes.  Appointments to detective can come through one of two
11   ways:  by a -- by a person's score on an assembled competitive
12   examination and/or by -- by nomination and acceptance through
13   the merit process.
14   Q.  And isn't it true that that procedure is, in fact,
15   contained in the FOP contract?
16   A.  Yes, it is.
17             MS. PAPUSHKEWYCH:  Can I have a moment?
18             THE COURT:  And that's the union contract?
19             MS. PAPUSHKEWYCH:  Yes.  I'm sorry.
20             THE COURT:  Oh, that's okay.
21             MS. PAPUSHKEWYCH:  Fraternal Order of Police Lodge 7.
22             THE COURT:  Okay.
23             MS. PAPUSHKEWYCH:  May I have a moment?
24             THE COURT:  Yes.
25             MS. PAPUSHKEWYCH:  Nothing further, although we will
                                                            523
 1   reserve our right to call Deputy Joyce in our case in chief.
 2             THE COURT:  All right.  We're at 12:30.  Should we
 3   break now?  Or do you want finish --
 4             MR. FLAXMAN:  I have some short redirect, and then --
 5             THE COURT:  All right.  Why don't we finish this
 6   witness's testimony.  And then we'll take an hour for lunch.
 7   Is that satisfactory?
 8             MS. PAPUSHKEWYCH:  Yes.
 9             THE COURT:  Okay.
10             MR. FLAXMAN:  And do we have you for the whole
11   afternoon?
12             THE COURT:  Yes.
13             MR. FLAXMAN:  Okay.
14             THE COURT:  All week.
15             MR. FLAXMAN:  Fine.
16             THE COURT:  We're clear of motions.  I already had --
17   I have a terrific court clerk who just pushed all the cases
18   into the next week that we're going to face next week.
19                        REDIRECT EXAMINATION
20   BY MR. FLAXMAN:
21   Q.  Now, the FOP contract, does that have anything to do with
22   promotions to sergeant?
23   A.  There is language in there that -- that deals with -- with
24   promotion.  But, since sergeant is not in the collective
25   bargaining unit, it is -- it's not a -- it's not something that
                                                            524
 1   we have to rely on.
 2   Q.  Now, the merit selection board that you described selects
 3   20 percent of the persons who are promoted to detective, is
 4   that right?
 5   A.  They make recommendations to the Superintendent, who -- who
 6   then appoints, generally, 20 percent based on merit.
 7   Q.  And in making those recommendations the merit selection
 8   board is free to consider any police officer, is that right?
 9   A.  Well, they have to be nominated by their supervisors, and
10   it has to be done in the context of the general order that
11   describes how it's done.
12   Q.  Okay.  But of the people who can be nominated by the
13   Supervisor it's generally any police officer, is that right?
14   A.  I don't know the -- the minimum qualifications for -- for
15   nomination as we speak today.
16   Q.  Well, do you know whether or not those minimum
17   qualifications for nomination are different than the minimum
18   qualifications to become a sergeant, or to take the test to
19   become a sergeant?
20   A.  Well, since I don't know what they are for D-2 I can't
21   really answer that.
22   Q.  Well, is there any reason of which you're aware why the
23   merit selection board could not be making recommendations for
24   promotion to sergeant?
25   A.  Well, there's a -- a recent Illinois Appellate Court
                                                            525
 1   decision that has kind of clouded the issue a little bit.  But
 2   we are working on whether that -- that is a possibility.
 3   Q.  Well, other than that Illinois Appellate Court decision, is
 4   there any practical or psychometric reason why the merit
 5   selection board could not be used to make recommendations for
 6   promotion to sergeant?
 7   A.  Well, actually, I haven't -- I have not given that
 8   significant enough thought to -- to answer you professionally.
 9   But I do have some concerns about how it could be done at the
10   rank of sergeant, because the feeder pool for police officer in
11   Chicago is so large that, again, trying to have a reliable
12   nomination and evaluation process would become difficult.
13   Q.  Well, is the feeder pool the same for sergeants as for
14   detectives as police officers?
15   A.  I don't know.  There are -- I do know that there are fewer
16   people who apply to become detectives than there are who apply
17   to be promoted to sergeant.
18   Q.  Has the City done any investigation to determine whether or
19   not the detectives who have been promoted through the merit
20   selection board process have done as well as or not as well as
21   the detectives who were promoted through the examination
22   process?
23   A.  I don't know.
24   Q.  Now, when you talked about the performance rating system
25   and you said it had been criticized as having to do with
                                                            526
 1   politics, favoritism, or unreliable, do you know of any
 2   analysis, mathematical analysis that's been done to see whether
 3   any of those beliefs are true?
 4   A.  Well, the reliability part --
 5             THE COURT:  Are you talking about mathematical
 6   analysis or study?  Or is it limited strictly to mathematical
 7   analysis?
 8             MR. FLAXMAN:  No, I mean study.
 9             THE COURT:  I'm not sure how political favoritism
10   could be mathematically analyzed.
11             MR. FLAXMAN:  I wasn't sure either when I asked the
12   question.
13             THE COURT:  Okay.  All right.  Why don't you restate
14   the question then.
15             MR. FLAXMAN:  All right.
16   BY MR. FLAXMAN:
17   Q.  Has any study been done to see whether or not these
18   beliefs -- whether or not there's a factual basis for these
19   beliefs that politics, favoritism enter into performance
20   ratings?
21   A.  In terms of politics and favoritism, no.
22   Q.  Okay.  Has any study been done to see whether or not
23   performance ratings are reliable?
24   A.  Yes.
25   Q.  And by reliable do you mean that a person would get the
                                                            527
 1   same performance rating in one period as in another period?  Or
 2   was there any different rating?
 3             Well, what did you mean by --
 4   A.  Well, it's been done in several ways.  And, unfortunately,
 5   it was long enough ago that I -- I don't remember precisely.
 6             I do remember in one case we looked at the effect of
 7   an individual's performance rating after a transfer.  And there
 8   is -- there is -- as I recall, the findings were that after a
 9   transfer a -- a person's performance rating generally goes
10   down.
11             If the person stays under the same supervisor
12   there -- there is high reliability in terms of a repeated
13   performance score if under the same supervisor.  But -- but if
14   a person changes supervisors or changes units, then -- then
15   there is not a reliable continuation of the score.
16             But that gets back to part of my commentary earlier
17   that --
18   Q.  Now, at one time was it charged that the performance
19   ratings were discriminatory?
20   A.  Yes.
21   Q.  And that was -- when was that?
22   A.  I don't remember precisely.  It was in conjunction with the
23   Bigby in police lieutenant, I believe.
24   Q.  And that would be the trial that took place in 1982, is
25   that right?
                                                            528
 1   A.  I don't remember exactly.  But that sounds right.
 2   Q.  Now, since 1982 is it correct that the proportion of
 3   minority sergeants has increased in the City of Chicago?
 4   A.  I can't say that with certainty.
 5   Q.  Okay.  Well, since 1982 have you done any analysis to
 6   determine whether there are differences in the mean scores of
 7   black, white, and Hispanic police officers in performance
 8   ratings in the City of Chicago?
 9   A.  I'm quite sure we would have done that in conjunction with
10   our work on the '85 Sergeant.
11   Q.  Well, since the work on the '85 Sergeants have you done any
12   analysis of that nature?
13   A.  Not that I can recall.
14   Q.  Would it surprise you to know that there's less than one
15   point average score difference between blacks, whites and
16   Hispanics in their performance ratings?
17             MS. PAPUSHKEWYCH:  I object.  There are no facts in
18   evidence to that.
19             THE COURT:  Well --
20             MS. PAPUSHKEWYCH:  Would if surprise you to --
21             THE COURT:  I'll sustain the objection to that
22   question in the sense that it seeks to indirectly utilize
23   something that is not in evidence.
24             But you certainly can ask this witness if he's got
25   any knowledge.
                                                            529
 1   BY MR. FLAXMAN:
 2   Q.  Do you have any knowledge about whether the differences in
 3   mean scores performance ratings between black, white and
 4   Hispanic police officers is now less than one point?
 5   A.  No, I don't have that information.
 6   Q.  Would you be able to find that out if you wanted to?
 7   Q.  Not within my office or my records, no.
 8   Q.  Could you get data from the Police Department?
 9   A.  I could request it.
10   Q.  And is that data that they keep in computer readable form
11   somewhere?
12   A.  I don't know their format.
13   Q.  Now -- I'm almost done.
14             THE COURT:  Okay.
15   BY MR. FLAXMAN:
16   Q.  You talked about the uniform guidelines on employee
17   decision making, and you said -- I think you said you were
18   familiar with those.
19   A.  It's employee selection as opposed to decision making.
20   Q.  Okay.  So you are familiar with it?
21   A.  Yes, I believe I am.
22   Q.  Okay.  And you're familiar with the three validation
23   approaches that are recognized in those guidelines, is that
24   right?
25   A.  Yes.
                                                            530
 1   Q.  There's content validity, is that right?
 2   A.  Yes.
 3   Q.  And there's criterion validity?
 4   A.  Yes.
 5   Q.  And there's construct validity?
 6   A.  Yes.
 7   Q.  Is there something in those uniform guidelines called
 8   construct/content validity?
 9   A.  Not in the guidelines, no.
10             MR. FLAXMAN:  Thank you.  Nothing further.
11             MS. PAPUSHKEWYCH:  I just have two short questions.
12             THE COURT:  Okay.  Fine.
13                         RECROSS EXAMINATION
14   BY MS. PAPUSHKEWYCH:
15   Q.  You testified on redirect that there was an Illinois
16   Appellate Court decision regarding the merit selection process,
17   isn't that true?
18   A.  Yes.
19   Q.  And which examination did that decision pertain to?
20   A.  The police lieutenant examination that was completed in, I
21   believe, 1994.
22   Q.  And isn't it true that the merit selection process was
23   determined -- the City determined to utilize that merit
24   selection process after the results of the examination had been
25   obtained?
                                                            531
 1   A.  That's correct.
 2   Q.  And what is your understanding as to whether the City could
 3   utilize merit selection for this current sergeant's list?
 4   A.  Well, again, given my understanding of -- of the Illinois
 5   Appellate Court ruling, as an after-the-fact decision that we
 6   wouldn't be able to do it.
 7   Q.  And why is that.
 8             If you know.
 9   A.  Well, I don't remember the rationale exactly.
10   Q.  Okay.  One other question.  Isn't it true that in previous
11   litigation with the City of Chicago courts have found that
12   performance evaluation systems within the fire and police
13   department are biassed and discriminatory?
14   A.  Discriminatory, yes.
15             MS. PAPUSHKEWYCH:  Thank you.
16                        REDIRECT EXAMINATION
17   BY MR. FLAXMAN:
18   Q.  Has the City of Chicago ever been prohibited from using
19   performance ratings in -- as a component of the promotional
20   process in its police department?
21   A.  I actually don't recall.
22             MR. FLAXMAN:  Okay.  Thank you.
23             MS. PAPUSHKEWYCH:  Nothing further.
24             THE COURT:  All right, that concludes your testimony,
25   then, and you're excused.  And we'll recess for lunch and we'll
                                                            532
 1   ask that you report back at 1:40.
 2             MS. PAPUSHKEWYCH:  And at that time, your Honor, may
 3   I make my record on the subject matter experts ruling?
 4             THE COURT:  Yes.
 5             MS. PAPUSHKEWYCH:  Thank you.
 6        (Proceedings recessed at 12:35 p.m.)
 7
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                                                            533
 1                IN THE UNITED STATES DISTRICT COURT
                     NORTHERN DISTRICT OF ILLINOIS
 2                          EASTERN DIVISION
 3   ADAMS, et al.,               ) Docket No. 94 C 5727
                                  )
 4               Plaintiffs       )
                                  )
 5         v.                     ) Chicago, Illinois
                                  ) March 7, 1996
 6   THE CITY OF CHICAGO,         ) 2:25 o'clock p.m.
                                  )
 7               Defendant        )
 8
 9                         TRANSCRIPT OF TRIAL
                  BEFORE THE HONORABLE JOHN A. NORDBERG
10                    UNITED STATES DISTRICT JUDGE
11   APPEARANCES:
12   For the Plaintiffs:        LAW OFFICES OF KENNETH N. FLAXMAN
                                By:  MR. KENNETH N. FLAXMAN
13                              122 South Michigan Avenue, Suite 1850
                                Chicago, Illinois  60603
14
     For the Defendant:         CITY OF CHICAGO
15                              By:  MS. SHONA B. GLINK
                                     MS. DARKA PAPUSHKEWYCH
16                                   MR. JAY KERTEZ
                                30 North LaSalle Street, Suite 1020
17                              Chicago, Illinois  60602
18
19   Court Reporter:            Carol Matz
                                343 South Dearborn Street, Suite 319
20                              Chicago, IL  60604
21
22
23   Proceedings recorded by mechanical stenography, transcript
     produced by computer.
24
25
                                                            534
 1             THE COURT:  All right, court is back in session.
 2             I'm delayed in coming out because I've had a talk
 3   with our excellent Tribune reporter as to the concerns that he
 4   has, as well as the paper has, of our requiring that he sign on
 5   the protective order, as well as be limited on the ability to
 6   take notes as to what occurs in the courtroom while a public
 7   trial is taking place.
 8             And he hasn't had a chance to confer with counsel for
 9   the Tribune and -- but he has expressed his concern.  And I can
10   understand the concern.
11             I expressed to him -- and this was just a chat in
12   chambers before coming out -- the reason why the City had
13   requested a protective order with respect to the exact language
14   and the correct answer for each of the Sergeant's examination,
15   promotion examination questions.
16             It seems to me what I had proposed would work for
17   everybody except the question of the media.
18             I think at the time I was mentioning it I didn't see
19   any media representative there.  And we are now faced with
20   this.
21             And I can't recall enough case authority on this.  I
22   have had the question raised as to the right to attend side
23   bars, and so on, particularly in special criminal cases, but I
24   don't recall one with respect to this.
25             Now, our reporter reports that, of course, in a
                                                            535
 1   number of cities -- of course, I didn't know this -- but in a
 2   number of cities the police departments actually release the
 3   questions and the correct answers, the whole thing.
 4             MS. PAPUSHKEWYCH:  We did not and we do not.
 5             THE COURT:  No.  I know that.
 6             But one of the thoughts that occurred to me --
 7   because it hasn't been argued to me and I really just thought
 8   about it -- whether there is some sort of a crib sheet or crib
 9   book or -- I forget the various names that are used -- where
10   somebody can study police examination questions for sergeant
11   that have been utilized in other cities, and that sort of
12   thing.
13             What I'm wondering about, is it so critical that we
14   have to prevent -- assuming that I -- that we can be successful
15   in not reading the question in its exactitude and not reading
16   the answer to the question -- assuming that we can avoid doing
17   that -- and of course, I believe that there should be no
18   problem of the sealing of the actual questions and answers --
19   could we determine that that is going to be a sufficient
20   protection so far as the media is concerned?
21             MS. PAPUSHKEWYCH:  Well, your Honor, if the
22   parameters of what we're talking about --
23             THE COURT:  So we'd make an exception for anybody
24   that is reporting for any media publication.
25             MS. PAPUSHKEWYCH:  Yeah.  To the extent that what we
                                                            536
 1   are talking about is that the actual questions and answers are
 2   not going to be read into the record -- and is it my
 3   understanding that Mr. Flaxman is not going to go go through
 4   the complete examination?
 5             At least that's what he was -- you know, it's a
 6   question of how many items are going to get out and to what
 7   extent.
 8             You know, right now if what we're going to do is have
 9   a general description of some of the questions and why they're
10   bad, I think we can live within those paramaters, if that's
11   what, you know, Mr. Flaxman is going to be doing.
12             On the other hand, if the questions are going to be
13   basically read into the record with the answers, you know, I
14   know that it's the City of Chicago's exam.  We do not release
15   exams.  They're not FOIAble.
16             So I -- you know, I guess we have to see FOIAble --
17   you know, not foibles -- under the Freedom of Information Act.
18   I guess we have to see how this progresses.
19             But if this was within the parameters of identifying
20   generally a question, not reading the question into the record,
21   and --
22             THE COURT:  Can't we apply that to everybody, then,
23   and not go through this process that I had suggested before?
24             MS. PAPUSHKEWYCH:  I -- I guess, you know --
25             THE COURT:  I don't wish to get involved in
                                                            537
 1   collateral litigation as to whether it's fair to draw a
 2   distinction between the media reporters and other groups of
 3   citizens.
 4             MS. PAPUSHKEWYCH:  Your Honor, can I suggest this?
 5   Let's start the process and not go through the confidentiality
 6   at this point.
 7             THE COURT:  All right.
 8             MS. PAPUSHKEWYCH:  And if we have an objection in
 9   terms of that I -- I think we're getting to the point where --
10             THE COURT:  Okay.
11             MS. PAPUSHKEWYCH:  -- we have a legitimate and, you
12   know, problem --
13             THE COURT:  All right.
14             MS. PAPUSHKEWYCH:  -- we will raise it at that point.
15             THE COURT:  All right.  Okay.
16             MS. PAPUSHKEWYCH:  Okay?
17             THE COURT:  I think that's fine.  We'll start out --
18   everybody understands what I feel is a legitimate concern, and
19   let's hope that we'll work our way through it.
20             Okay.  All right.  With that, are we ready to call
21   the next witness, then?
22             MS. PAPUSHKEWYCH:  Actually, I would like to make my
23   record.
24             THE COURT:  Oh, now, the other thing I want to
25   report.  I didn't realize I was raising a problem.  This is
                                                            538
 1   what you get when you brainstorm, you know, on the spur of the
 2   moment.  But, apparently, there could be a problem -- whether
 3   it's protocol or rule of court or what -- in actually releasing
 4   to someone the tape of a court proceeding.
 5             But, as I understand it now, that's not going to be
 6   necessary, we'll all agree that she's going to be able get the
 7   transcripts out in time.
 8             MS. PAPUSHKEWYCH:  Right.
 9             THE COURT:  And there wasn't any intent -- I just
10   want to be sure on the record, there was no intent to cut
11   somebody out of doing some transcripts or interfere with the
12   fact that normally transcripts would be prepared, it was just
13   the emergency problem with the expert arriving on Sunday night
14   and only having one day left.
15             So, all right, in any event, we're all set to
16   proceed, then, unless you've got something else to raise now.
17             MS. PAPUSHKEWYCH:  I just wanted to make my record on
18   your ruling this morning.
19             THE COURT:  Oh, I'm sorry.  Yes.  Okay.  All right,
20   continue.
21             MS. PAPUSHKEWYCH:  In addressing your Court's ruling
22   that will allow the subject matter -- plaintiffs' subject
23   matter experts to come in and testify regarding the questions,
24   we think that your Honor is wrong on it.
25             THE COURT:  All right.  But, now, they're not going
                                                            539
 1   to be giving opinions as an expert in formulating questions.
 2   What they're go to be able to testify to, though, is the fact
 3   that the particular activities, if I can use that broad term,
 4   is not -- does not relate to the actual job activities that
 5   will be involved in the -- as a Chicago Police Sergeant.
 6             MS. PAPUSHKEWYCH:  I understand that that's your --
 7             THE COURT:  So and what it is, it mirrors, in effect,
 8   what Dr. Barrett received in the way of information from
 9   several members of the force who also purported to give their
10   advice as to the job relatedness of the various questions that
11   were proposed and that some questions were dropped because they
12   said it was not job related to what a Chicago Police Sergeant's
13   activities would be.
14             And so it seems to me that both sides ought to, in
15   order for a -- there would be a complete record made here
16   for -- which may or may not be required for a final decision in
17   the case -- that that evidence be in the record.
18             Because, certainly, plaintiff has the right to
19   challenge these questions on the fact that they aren't -- the
20   content validity of the type of questions by saying that
21   they're not sufficiently job related.  And you ought to have a
22   right to submit evidence to show that they are job related and
23   it is content valid.
24             So, all right, now you can go ahead with your
25   argument on it.
                                                            540
 1             MS. PAPUSHKEWYCH:  And, ultimately, your Honor, the
 2   pertinent question in front of this Court is the validity of
 3   the examination.  And what I would just suggest to this Court
 4   at this time is that plaintiffs' expert has already testified
 5   and plaintiffs' expert has offered no opinion as to the
 6   validity of the items.  Plaintiffs' expert has offered no
 7   opinion on which items or how many items were insufficient or
 8   how many items were not tasks that are identified with the
 9   Sergeant's exam.
10             In fact, he has not testified as to any of the
11   pertinent issues in this case.
12             THE COURT:  Well, but we're not talking about his
13   testimony now.
14             MS. PAPUSHKEWYCH:  I know.
15             THE COURT:  We're talking about the ability of the
16   others that -- whether there's an offer of proof to testify as
17   to the job relatedness of the questions.
18             MS. PAPUSHKEWYCH:  I understand that, your Honor.
19   But my point is that even if the subject matter experts could
20   show -- which we, you know, contend that they cannot -- that
21   some of these items were not related to the jobs, plaintiff
22   still cannot establish in this case what number is sufficient
23   to invalidate this exam.
24             You yourself asked yesterday "Is 78 enough?  Is 82
25   enough?"
                                                            541
 1             These subject matter experts are not going to be able
 2   to testify to that.  They are not test developers.
 3             THE COURT:  I don't think that -- well, I don't
 4   understand that's what they're going to be asked to testify to.
 5   But I would doubt that there would be a sufficient foundation
 6   laid where they could testify to that specific point.  I agree.
 7             MS. PAPUSHKEWYCH:  Which is exactly the point, your
 8   Honor.
 9             THE COURT:  But you're making a sort of a final
10   argument as to the inadequacy of plaintiffs' case.  And I
11   think, you know, we're not there yet, and I do think that the
12   plaintiff should have the right to attack the validity of these
13   questions.
14             Content validity can be tested, it seems to me, by
15   the testimony of those who are knowledgeable of the police
16   sergeant actions that are going to be expected of a police
17   sergeant -- I'm trying to stay away from some of the other
18   words -- and that would have -- that would be relevant, anyway,
19   to the content validity of the test.
20             So you made your point.
21             MS. PAPUSHKEWYCH:  Okay.
22             THE COURT:  You don't have to make it again.  It
23   remains throughout the case.  And --
24             MS. PAPUSHKEWYCH:  And may we just have a standing
25   objection on the record, then?
                                                            542
 1             THE COURT:  Yeah.  In federal court that's what you
 2   have.
 3             MS. PAPUSHKEWYCH:  All right.  And there's two other
 4   matters we would just like to clarify.  One matter.
 5             THE COURT:  All right.
 6             MS. PAPUSHKEWYCH:  Is the offer of proof therefore
 7   stricken from the record, since we did not have the opportunity
 8   to cross examine and since that was --
 9             THE COURT:  Yeah, that was a failed ruling on my
10   part.
11             Is there any objection to striking that?  Because
12   I --
13             MR. FLAXMAN:  No, Judge.
14             THE COURT:  I don't know what everybody would want to
15   do with it otherwise.
16             MS. PAPUSHKEWYCH:  Right.
17             THE COURT:  So I think that's a valid motion, and
18   I'll grant it, to strike all offers of proof by -- what are we
19   calling them, subject matter?
20             MR. FLAXMAN:  Experts.
21             THE COURT:  -- experts.  Okay.
22             MS. PAPUSHKEWYCH:  Thank you.
23             THE COURT:  All right, anything else, now, before we
24   put on the next witness?
25             MR. FLAXMAN:  Yeah.  We spell FOIAble F-O-I-A-b-l-e.
                                                            543
 1   That was the word that -- the new word.
 2             THE COURT:  Oh, yes.
 3             It shows that English is still a dynamic language.
 4             MS. PAPUSHKEWYCH:  Well, we deal with the Freedom of
 5   Information Act a lot.
 6             THE COURT:  Yes, I'm sure you do.
 7             I think it would be interesting if some day there
 8   will be a study made on that as to what effect that has on
 9   government action --
10             MS. PAPUSHKEWYCH:  Yes, that would be.
11             THE COURT:  -- other than hiring the number of people
12   that handle the procedures.
13             I suspect it does have an effect.
14             All right.  Are we ready to call our next witness?
15             MR. FLAXMAN:  Yes, we are.  We will be recalling Sgt.
16   Vance Kimber.
17             THE COURT:  Right.  Again, I'm going to put all of
18   you under oath because once you're, in a sense, excused that's
19   our regular practice.
20              VANCE KIMBER, PLAINTIFFS' WITNESS, SWORN
21                         DIRECT EXAMINATION
22   BY MR. FLAXMAN:
23   Q.  Could you state your name and spell your last name, please.
24   A.  My name is Sgt. Vance Kimber.  Vance T. Kimber.  I'm sorry.
25   K-i-m-b-e-r.
                                                            544
 1   Q.  And how old are you, Sergeant?
 2   A.  I'm 44 years old.
 3   Q.  And how long have you been a Chicago Police Officer?
 4   A.  I started with the --
 5             THE COURT:  Well, I don't mean to cut you short, but
 6   you don't have to repeat that.  I only struck the offers of
 7   proof.
 8             MR. FLAXMAN:  All right.
 9             THE COURT:  Okay.  Go ahead.
10   BY MR. FLAXMAN:
11   Q.  Let me show you what's previously been marked as
12   Plaintiffs' Exhibit 54.
13             THE COURT:  Excuse me.  What was that number again?
14             MR. FLAXMAN:  54.
15             THE COURT:  Okay.
16             MR. FLAXMAN:  I actually have a copy for your Honor
17   so we won't be talking in code.
18             THE COURT:  Okay.  Thank you.
19   BY MR. FLAXMAN:
20   Q.  Now, the first page of Plaintiffs' Exhibit 54 says question
21   6, is that right?
22   A.  That's correct.
23   Q.  Is the subject matter of question 6 something that's
24   important for a sergeant to know the first thing on the job?
25   A.  No, it is not.
                                                            545
 1   Q.  Why is that?
 2   A.  The reason it is not -- your Honor, directing your
 3   attention to the third sentence -- and the question and the
 4   first word in that third sentence is usually not found
 5   anywhere -- excuse me; anywhere in the field duties of a
 6   sergeant, or field responsibilities of a sergeant.  And, in
 7   fact, even a patrol unit would not specifically know that
 8   terminology.
 9             That terminology is usually only used in other units
10   that specialize in -- in vehicles.
11   Q.  And that phrase is a three-word phrase that begins with the
12   word "confidential," is that correct?
13   A.  That is correct.
14             MR. FLAXMAN:  Do you see where we're at, Judge?  I
15   don't --
16             THE COURT:  Yeah.  No, no; I'm with you.
17             MR. FLAXMAN:  I'll try to keep --
18             THE COURT:  I'm current.
19             MR. FLAXMAN:  Okay.
20   BY MR. FLAXMAN:
21   Q.  Now let's turn the page, and you see question 11, is that
22   right?
23   A.  That's correct.
24   Q.  And is question 11 something that relates to the actual
25   activity of a sergeant?
                                                            546
 1   A.  Yes, this question is.
 2   Q.  Okay.  Let's turn the page to question 15.  Does question
 3   15 relate to the actual activity of a sergeant in the Chicago
 4   Police Department?
 5   A.  The reason, your Honor, that this question does not and is
 6   ambiguous, from my point of view, is that it requires the
 7   officer to be in two places at once.
 8             The duties of -- I'm trying to stay within the
 9   protective order.  The duties of a -- the duties of an officer,
10   of his assignment, would be to do two things, and he couldn't
11   be in two places at once.  And that makes the question
12   ambiguous.
13             And the reason --
14             MR. KERTEZ:  Objection, Judge.  This is an objection.
15   I think that we established that he can testify whether it's
16   related to what a sergeant does.  But whether it's ambiguous or
17   confusing, that is something that this Court has said he may
18   not testify about.
19             THE COURT:  No.  I reversed myself on that too,
20   because it seems to me they can attack the content validity,
21   which certainly would relate -- I mean, if every question that
22   is proposed in an exam is ambiguous or not possible for
23   somebody to understand -- I'm exaggerating -- but it certainly
24   would affect the validity of the contents of the test, it seems
25   to me.
                                                            547
 1             So I'm not trying to draw that final line.  He's not
 2   giving an expert opinion about things, he's stating, in his
 3   opinion, whether persons that take the test would find it to be
 4   in this case ambiguous.
 5             So I'll overrule the objection and we'll proceed on
 6   the basis that we have now.
 7             And the reason for saying that it's ambiguous is that
 8   it requires you to do two things at once?
 9             THE WITNESS:  Yes, your Honor.
10             In fact, if you'll look at the responses A, B, and C
11   and D you'll notice that A was -- based on the scoring sheet
12   here at the bottom, A was the correct answer chose by most of
13   the people, which is not the correct answer.
14             THE COURT:  Yeah.
15             THE WITNESS:  And that is because A is an answer that
16   requires the officer to actually do -- that is what he actually
17   has to do.
18             And that is the reason that I -- I said the question
19   is ambiguous, because it requires for him to be in two places
20   at once.
21             THE COURT:  Okay.
22   BY MR. FLAXMAN:
23   Q.  Okay.  Let's turn to page 2, question 17.  Is the answer to
24   question 17 something that a sergeant has to know the first day
25   on the job?
                                                            548
 1   A.  No, it is not.
 2   Q.  And why is that?
 3   A.  What would happen in question 17 is that a sergeant would
 4   have to take this situation into the station.  And, just as --
 5   and in no disrespect, your Honor -- just as you refer to your
 6   legal documents and the -- and the law to further what the
 7   actual charge or the decisions that you make, so would a
 8   sergeant have to do with this.
 9             And, in fact, what a sergeant would do, as in most
10   cases and in general terms throughout this test -- what a
11   sergeant would do -- a field sergeant, not a desk sergeant --
12   he would return and ask the detectives, state's attorneys and
13   watch commanders for those -- for that -- that information.  He
14   would gather that further information.
15             So he wouldn't have to actually know the A, B, C, D,
16   E here that is -- that is outlined in this particular question.
17             Am I -- have I explained it --
18             THE COURT:  Yeah.  At least the way -- yeah, the way
19   the question is stated --
20             THE WITNESS:  Stated, right.
21             THE COURT:  -- there doesn't seem to be an emergency
22   or --
23             THE WITNESS:  Correct.
24             THE COURT:  -- a need for immediate action.
25             THE WITNESS:  Correct.  Correct.  Exactly.  He would
                                                            549
 1   refer to legal documentation that would be found in the station
 2   and add through assistance through a state's attorney and
 3   detectives.
 4   BY MR. FLAXMAN:
 5   Q.  Now, the next page is question 19.  Does question 19 relate
 6   to the actual activity of a sergeant?
 7   A.  No.
 8             One second.
 9             The activity -- the question relates to the activity
10   of a sergeant, but the problem with this question is -- your
11   Honor, if you'll look at the -- the score sheet, there are
12   two -- I don't know, can I say that?  The correct answer that
13   is given -- oh, yeah, I guess I can.  There are two correct
14   answers given for this question by the scorer.
15             That leads to the ambiguousness of it, because what a
16   sergeant would have to actually do is -- and this is the
17   logical steps that I'm speaking of -- that once he arrived on
18   the -- the incident that is related here on the question, what
19   a sergeant would actually have to do is C.  That would be he
20   would have to partially make out the document that is outlined
21   in C.  That is one of the first logical things that he would
22   have to do.  And E is -- is not -- is somewhere later on down
23   the line.
24             So it wouldn't relate to the --
25             THE COURT:  To the timing of it --
                                                            550
 1             THE WITNESS:  Exactly.
 2   BY THE WITNESS:
 3   A.  The logical sequence of it is not -- is not correct.
 4             And it's so stated by the -- by the D and E, you
 5   know, the double answer on the score sheet.
 6             THE COURT:  Right.
 7   BY MR. FLAXMAN:
 8   Q.  Question No. 23, which I think is the next page, does that
 9   relate to the actual activity of a Chicago Police Sergeant?
10   A.  No.  No, it doesn't.
11             And the problem with this question, your Honor, is
12   that it doesn't relate to the logical steps that would take
13   place.
14             And even if one of the logical steps is taken out --
15   you know what I mean -- you know, it is a test.  So maybe the
16   logical step would be, one, what do you actually do; two, if
17   that's not there, what's the logical step.
18             I don't know.  The logical steps is taken out, first
19   of all.  That's the first problem with it.
20   Q.  Well, so we're not so cryptic, what is the logical step?
21   What does a field sergeant do when confronted with the
22   situation described in question 23?
23   A.  Okay.  First of all, he would have to ascertain whether a
24   complaint would want to be signed by the -- the person that
25   is -- that is noted in this as -- as being the complaintant
                                                            551
 1   calling him to the scene.
 2             If no complaint was to be signed, then there is no
 3   crime and then there would be no --
 4             THE COURT:  And then he'd call the wife?
 5             THE WITNESS:  Right.  Exactly.  Exactly.  Thank you.
 6   Exactly.
 7   BY THE WITNESS:
 8   A.  If there was a complaint to be signed, so that he was
 9   somewhat disreputable, whether because of the -- the condition
10   described in question 23, then he would be treated just as any
11   other John Q Citizen and -- and transported and given other
12   tests.
13             I don't know if you want me to -- do you want me to
14   elaborate?
15             THE COURT:  Well, no.  I think you've covered it.
16             THE WITNESS:  Okay.  Good.
17             THE COURT:  As long as counsel is satisfied, I don't
18   want to interject.
19             THE WITNESS:  Okay.
20   BY MR. FLAXMAN:
21   Q.  Question 24 is the next page.  Does this question and the
22   proposed answers to this question relate to the actual
23   activities of a sergeant?
24   A.  No.  In fact, I think this is one of the ones that I really
25   found had a problem.
                                                            552
 1             The correct answer states that -- you know, it's D,
 2   and it's so stated on the form.  But what would actually
 3   happen, what a field sergeant would actually do would be --
 4   would sort of be response E.
 5             And if you'll notice the percentages on it --
 6             THE COURT:  Yeah.
 7             MR. KERTEZ:  Objection.
 8             THE COURT:  Yeah.
 9             MR. KERTEZ:  Objection, your Honor.  He is trying to
10   make an argument here that because a large -- the largest
11   number of people answered that answer E that it's somehow the
12   answer that should have been credited.  I don't think that he's
13   competent to make that determination.
14             Again, he can talk about what he thinks a sergeant
15   should do and how that's related to the question.  But to make
16   a statement --
17             THE COURT:  Well, he's pointing out something that is
18   in evidence, and that is what the results are.  He's not
19   permitted to draw any conclusion from that --
20             MR. KERTEZ:  Right.
21             THE COURT:  -- by way of any expertise.  But -- and
22   I'm not going to take -- let me just say that, however the
23   testimony comes in, I'm not going to consider that he's an
24   expert on the -- either the method of formulating the exact
25   question or as to the areas that can be tested by a particular
                                                            553
 1   question.
 2             But, on the other hand, I do think that he should be
 3   permitted, and I have so ruled now, to testify as to the job
 4   relatedness and as to whether the question is either ambiguous
 5   or misleading.
 6             It just seems to me that he has, certainly, the
 7   background and experience of being a -- a --
 8             MR. KERTEZ:  A sergeant.
 9             THE COURT:  -- a sergeant to be able to testify as to
10   that.
11             So your objection is denied to the extent that it
12   objects to that practice.
13             MR. KERTEZ:  I understand, your Honor.
14             I'd just like, then, to state for the record that
15   it's clear that the fact that a large number of people chose an
16   answer does not indicate at all its validity and doesn't seem
17   to me to be particularly relevant or useful at this juncture.
18             MR. FLAXMAN:  I think that this gentleman --
19             THE COURT:  Well, that's argument, and we're not
20   there yet, so --
21             MR. FLAXMAN:  And that might come up in cross
22   examination of Dr. Barrett.
23             THE COURT:  Okay.  Yes.  Okay.
24   BY MR. FLAXMAN:
25   Q.  The next page would be question 29.
                                                            554
 1             THE COURT:  And I take it there may be some
 2   literature on this.  All right, question 29.
 3   BY MR. FLAXMAN:
 4   Q.  Is there something confusing about this question?
 5   A.  Yes, it is.  The reason being is that you're required to do
 6   both A and B.  And, as I recall, to the best of my
 7   recollection, it doesn't require you which one to do first, but
 8   you are required by state statute to do B and we're required by
 9   the Department to do A to this question.
10             So it gives the difficulty of which one is -- you
11   know, which one is the right answer.
12   Q.  Okay.  The next page would be question 34.
13             THE COURT:  Or whether both would be the right
14   answer --
15             THE WITNESS:  Right.  Exactly.
16             THE COURT:  -- or maybe it's true of all of them.
17             THE WITNESS:  Right.
18             THE COURT:  So that's your point.
19             THE WITNESS:  Right.
20             THE COURT:  Okay, question 34.
21   BY MR. FLAXMAN:
22   Q.  Right.  Does this relate to the actual activity of a
23   Chicago Police Sergeant?
24   A.  I guess the -- the real problem -- twofold or threefold
25   problems with this question.
                                                            555
 1             The initial problem with the question is that -- I'm
 2   sorry, your Honor, I'm trying to -- to give you an answer
 3   without saying -- you know, referring to the question.
 4             The initial problem deals within the first
 5   sentence -- the first two sentences of the question.  Because
 6   of -- I guess I would direct the officer as a field sergeant to
 7   take him home.
 8             When you read the first two sentences, you know,
 9   that's the first problem.
10             THE COURT:  Yeah.  Okay, I see.
11             THE WITNESS:  You see?
12             THE COURT:  I see what you mean.  Sure.
13             THE WITNESS:  Yeah.
14             THE COURT:  Yeah.  And --
15             THE WITNESS:  Therein lies -- you know --
16             THE COURT:  It talks about transport to one location,
17   but they don't talk about transport to home.
18             THE WITNESS:  Right.
19   BY THE WITNESS:
20   A.  And if you'll read the question, the question is -- you
21   know, I mean, the only lack of ability is his ability to
22   transport himself.  That's his only ability that he lacks so
23   far, you know, basic to the question.
24             THE COURT:  Yeah.
25   BY MR. FLAXMAN:
                                                            556
 1   Q.  The next page would be question 37.  Is there -- well, does
 2   this relate to the actual activities of a Chicago Police
 3   Sergeant?
 4   A.  Okay.  The problem with this question is -- of 37 -- deals
 5   with what actually takes place.  And what actually takes place
 6   is D.  And it is -- it is a rare situation when E takes place.
 7   It is very rare when E takes place, but D is what actually
 8   takes place.
 9             So if that's what actually takes place that is the
10   problem I have with the question.
11   Q.  Okay.  The next --
12             THE COURT:  Because what actually takes place isn't
13   necessarily wrong?
14             THE WITNESS:  Correct.  Correct.
15   BY MR. FLAXMAN:
16   Q.  And, as a matter of fact, does the general order that
17   pertains to this area prescribe E as what should be done?
18   A.  Without looking at it, it probably does.  But I -- you
19   know, without looking at the general order I -- I wouldn't be
20   able to give a definite answer.  But I'm pretty sure it
21   probably does.
22   Q.  But the actual practice is not --
23   A.  Right, the actual practice is not -- actual practice is
24   not -- or policy -- procedure is not actually our practice in
25   this one.
                                                            557
 1   Q.  Now, the next page would be question --
 2             THE COURT:  Is it clear that the general order
 3   requires E?
 4             MR. FLAXMAN:  I believe it --
 5             THE WITNESS:  Yeah, it requires an order, yeah.
 6             THE COURT:  It doesn't give any discretion?  I mean,
 7   that's --
 8             THE WITNESS:  I can't recall it.  I'd have to look at
 9   the order to -- because it is a detailed order.  So I would
10   have to -- to refresh my memory I would have to look at the
11   order.
12             THE COURT:  Do they have 24-hour service of these --
13             THE WITNESS:  Oh, yeah.  Yeah.
14             THE COURT:  -- or require somebody that's on to call?
15             THE WITNESS:  Oh.  Oh, no.  I'm sorry.  Let me
16   explain why I said D.  The 24-hour service -- the reason I said
17   D is -- is that either the officer himself would keep -- keep
18   custody or -- or what is generally practice is that he would
19   turn to -- to a desk sergeant, and they would wait until a
20   parent or adult contacted them.
21             THE COURT:  Right.  But that's contrary to what the
22   general order states, is that right?  Do I understand that
23   right?
24             MR. FLAXMAN:  Yes.
25             THE COURT:  Okay.
                                                            558
 1   BY MR. FLAXMAN:
 2   Q.  The next page would be question 40.  Does this question
 3   relate to the actual activity of a Chicago Police Sergeant?
 4   A.  It doesn't relate to -- it relates to things that may have
 5   happened.  Yes, activity it does.
 6             But the problem with the question is -- is that the
 7   logical step in anything, in any victim crime-related
 8   situation, you would ascertain certain things.  So the problem
 9   is is that A would be the first logical step that you would
10   take.
11             And that is impressed on Department members
12   periodically.  We come out with literature referring to this --
13   I want to say to -- to what is mentioned in B, your Honor.
14             We come out with literature constantly because it's
15   such a new area in -- in the legal field.  So we've come out
16   with a lot of literature on that.  And all literature refers to
17   A as one of the first steps that you need to do in informing
18   someone.
19             THE COURT:  Okay.
20   BY MR. FLAXMAN:
21   Q.  Now, the next one is question 44.  And question 44 relates
22   to the actual activity of a sergeant?
23   A.  Yes, it does.
24   Q.  Does choice B on question 44 relate to what a patrol
25   officer does?
                                                            559
 1   A.  Choice B is not the responsibilities of -- usually, and in
 2   general terms almost always would not be the responsibility of
 3   a patrol officer to do that.
 4   Q.  Does the -- choice B talks about directly overseeing.
 5   A.  Right.
 6   Q.  And is it correct -- and I'm going to lead, I think, if I
 7   may -- that what the patrol officer does is directly place?
 8   A.  That's correct.  That is correct.  It is not -- he is not
 9   supervising, he is responding to -- to orders.  So he would not
10   be overseeing.  He would be placing people, not overseeing.
11   Q.  So if the choice for B had been --
12             THE COURT:  It shows the language.
13             THE WITNESS:  Yeah.  Yeah, the terminology.  I guess
14   the -- the problem throughout the test is -- is the terminology
15   that is used is not the terminology, the logical terminology
16   that is used in some police situations, I guess, is my response
17   to that.
18             THE COURT:  Well, you are also leading into these
19   answer paragraphs.  You have a colon, and they have what should
20   be instructed, but then the question doesn't relate to that --
21             THE WITNESS:  Right.  Exactly.
22             THE COURT:  -- introductory language.
23             THE WITNESS:  Right.  Correct.
24   BY MR. FLAXMAN:
25   Q.  Now, question 56, I think, is the next page.
                                                            560
 1   A.  Okay, your Honor, this is flat out easy.  We call this a
 2   easy one because what a sergeant -- what the sergeant should
 3   instruct the officer to do is definitely A.  And the reason
 4   that it is definitely A is because when people need to find out
 5   about someone that is in that facility that is what they have
 6   to do.  That is the only reference that someone would have to
 7   know that he is in that facility.
 8             So that would be the first thing that you have to do.
 9   And that is kept on the desk and is required by every officer
10   that comes into the station to fill that out.
11             Otherwise, if I brought you in -- well, I don't want
12   to get into the question.
13             You see -- I'm sorry, your Honor, do you see my
14   point?
15             THE COURT:  Right.
16   BY MR. FLAXMAN:
17   Q.  Okay.  So is there more than -- is the?
18             THE COURT:  There's more than one answer, but --
19             MR. FLAXMAN:  Well, when you go to --
20             THE COURT:  Actually, they don't say whether the
21   answer is to be the first thing that you do or the only thing
22   that you do or --
23             THE WITNESS:  Well, your Honor, if you go to the
24   correct response given by the score sheet --
25             THE COURT:  Right.
                                                            561
 1             THE WITNESS:  -- which is E.  But if you go to the
 2   question, that has already done been based somewhat in the
 3   question.
 4             Do you see what I'm saying?
 5             THE COURT:  Yes.
 6             THE WITNESS:  Because the officer has already done
 7   that.
 8             So the part of E would only be for the officer to
 9   find out through a watch commander or a detective or state's
10   attorney to actually perform those -- those functions it would
11   not be the function of the --
12             THE COURT:  Of the --
13             THE WITNESS:  Of a field sergeant.
14             THE COURT:  Well, no.  The patrol officer.
15             THE WITNESS:  Patrol officer or field sergeant,
16   right.
17             THE COURT:  Right.  But at least it would be
18   initiated by the sergeant, as opposed to the person he's
19   supervising --
20             THE WITNESS:  Correct.  Right.
21             MR. FLAXMAN:  Judge, we've now done about 13 of these
22   questions, and perhaps you'll agree that it's unlikely that
23   these -- these questions that we've done, and if the rest of
24   them are like this, will be used again by the City in a test.
25   And perhaps we could --
                                                            562
 1             THE COURT:  Well, the subject matter, it seems to
 2   me --
 3             MR. FLAXMAN:  Well, the subject matter is the general
 4   orders and the reading list.  And the precise wording of the
 5   questions --
 6             THE COURT:  I know.  But to foreclose their ability
 7   to test these areas, it seems to me -- I don't know.
 8             I mean, it seems to me unless you can explain why
 9   this is not a satisfactory method of eliciting his testimony I
10   think we ought to just stay with it.
11             MR. FLAXMAN:  Okay.  All right.
12             THE COURT:  At least for my purposes this works fine.
13             MR. FLAXMAN:  And you're the finder of fact and
14   you're the only one --
15             THE COURT:  If it works on cross, I don't know.  But
16   it certainly works so far.
17             MR. FLAXMAN:  Okay.
18   BY MR. FLAXMAN:
19   Q.  The next page would be -- what's the next page?
20   A.  57.
21   Q.  Okay.  Does 57 relate to the actual activity of a sergeant?
22   A.  The problem with -- with this question, your Honor, is that
23   B, the response B --
24             THE COURT:  The question that you asked, I think, is
25   not really --
                                                            563
 1             THE WITNESS:  Oh, I'm sorry.
 2             THE COURT:  -- responsive to the question.  You're
 3   having a problem on the correctness of the answer.
 4   BY MR. FLAXMAN:
 5   Q.  Is there more than one correct answer?
 6   A.  Oh, yes, it is.
 7   Q.  And which are the correct -- which answers are correct, in
 8   your opinion?
 9   A.  In my opinion, in my opinion B is what -- what would be
10   performed by the officer.
11             If the officer -- if the officer was John Q citizen
12   it would be B.  Being an officer doesn't take him out of the
13   light of being John Q. Citizen.
14             THE COURT:  Okay.
15   BY THE WITNESS:
16   A.  E is something that is done, but it's not done logically
17   first step.
18             THE COURT:  It's done later, right?
19             THE WITNESS:  Right.  Exactly.
20             MR. FLAXMAN:  Okay.  And your Honor understands what
21   the test is that's referred to in --
22             THE COURT:  Yes, I do.
23             MR. FLAXMAN:  Okay.
24             THE COURT:  I was a Justice of the Peace for a long,
25   long time, over eight years.  So --
                                                            564
 1   BY MR. FLAXMAN:
 2   Q.  The next page would be 58.  Is there more than one correct
 3   answer to 58?
 4   A.  Yes.  Yes, your Honor.  And this goes back to two or three
 5   questions previously that dealt with the same subject matter
 6   that is listed in line 1 and 2 of this question.
 7             THE COURT:  Okay.
 8   BY THE WITNESS:
 9   A.  The same subject matter.
10             Because we have come out new -- new area of law.
11   Because we've come out with so much information on this there
12   are some special things -- I'm sorry; there are some different
13   things that you do.  And in relation to that question answer B
14   would fall into that kind of thinking.
15             THE COURT:  I see.  Okay.
16             THE WITNESS:  Okay.
17   BY MR. FLAXMAN:
18   Q.  And the next page would be 59.  Does this relate to the
19   actual activity of a Chicago Police Sergeant?
20   A.  Yes, it does.
21             MR. KERTEZ:  Your Honor, I'd like to interpose an
22   objection at this point in time after some of questions that
23   we've heard and some of the answers that have been given.
24             It appears to me from the testimony that's been
25   elicited that the witness is saying that there have been some
                                                            565
 1   orders, or some policies that have come down after this
 2   examination had been given, and it seems to me that it is
 3   inappropriate to suggest that testing should have been done
 4   based upon what -- well, it could not have been done, actually,
 5   based upon what came after the examination.
 6             THE COURT:  Well, all right, I think that's something
 7   that you would logically treat in cross examination so we'd
 8   find out what the timing is, as opposed to taking any action in
 9   connection with the direct examination.
10             MR. KERTEZ:  I understand, your Honor.
11             THE COURT:  Let him bring out his evidence and then
12   you can cover it on cross.
13             MR. KERTEZ:  Your Honor, if I may add --
14             THE COURT:  But it seems to me that there is some
15   point to that, depending upon what the facts would be.
16             MR. KERTEZ:  Right.  And, your Honor, if I may make
17   one more point.  And that is that we've talked about some
18   policies.  There's been no foundation as to those policies to
19   allow testimony regarding what those policies are.
20             THE COURT:  Well, again, to the extent that you wish
21   to bring that out in cross examination that would be helpful.
22   Otherwise it's argument.
23             But we really need to move ahead.
24             MR. KERTEZ:  I understand.
25             THE COURT:  This is only the first witness, and we've
                                                            566
 1   got a long way to go.
 2             So it's not that I don't think you have some valid
 3   points, but I'm going to overrule the objection for the reasons
 4   that I've indicated.
 5   BY MR. FLAXMAN:
 6   Q.  Is knowing the correct answer to question 59 something that
 7   a sergeant should know the first thing on the job?
 8   A.  Yes.
 9   Q.  Okay.  Is there more than one correct answer?
10   A.  It appears to be, in my estimation.
11   Q.  Okay.  And which answers, in your estimation, are correct?
12   A.  A, because a sergeant is always instructed to do that.
13   Q.  Well, let me ask you a specific question.
14   A.  Okay.
15   Q.  When you complete the particular form that's referred to in
16   this question in its entirety do you also swear to the alleged
17   violation?  Is that part of the form?
18   A.  The only thing that a sergeant -- for your Honor's
19   clarification, the only thing a sergeant would have to do on
20   this particular form is to sign it.
21   Q.  Yeah.  But we're talking about the patrol officer.
22             THE COURT:  Well, no, it's the patrol officer's --
23   BY THE WITNESS:
24   A.  No.  He would --
25             THE COURT:  -- form, so --
                                                            567
 1   BY THE WITNESS:
 2   A.  -- fill out the form.
 3             THE COURT:  Yeah.
 4   BY MR. FLAXMAN:
 5   Q.  But would the patrol officer fill out the form in its
 6   entirety?
 7   A.  Yes, he would.
 8   Q.  And would the patrol officer in the form -- in the course
 9   of filling out in its entirety --
10             THE COURT:  Does the sergeant have the power to
11   administer an oath?
12             MR. FLAXMAN:  Yes.  That's under --
13             THE COURT:  Okay.  I didn't know.  I was just -- I
14   never had the question, so --
15   BY MR. FLAXMAN:
16   Q.  Does a sergeant have the power to administer an oath?
17   A.  The -- the sergeant is -- is deputized as a clerk of the
18   court.
19             THE COURT:  Okay.
20             MR. FLAXMAN:  You were a Justice of the Peace.
21             THE COURT:  So he swears in --
22             THE COURT:  Well --
23             THE WITNESS:  You know, he swears in any complaints
24   on things like that.  A sergeant, you know --
25             THE COURT:  Yeah.  There are different procedures in
                                                            568
 1   the suburbs, though, than in the city.
 2   BY MR. FLAXMAN:
 3   Q.  Okay.  The next page would be question 65.
 4   A.  Oh, okay.  This is a good question.  I mean -- well --
 5   excuse me, your Honor.  When I say it's a good question it is
 6   because I got asked this question recently.
 7             THE COURT:  I mean, this happened to you?
 8             THE WITNESS:  Yes.
 9   BY MR. FLAXMAN:
10   Q.  So knowing the answer to this question is something that
11   relates to the actual activity of a Chicago Police Sergeant?
12   A.  Let me read it again.
13             THE COURT:  Were you asked as a sergeant or as a
14   neighbor?
15             THE WITNESS:  I was asked at church.  A church member
16   asked me this question.
17   BY MR. FLAXMAN:
18   Q.  Okay.  And is the correct answer to this question choice C?
19   A.  Well, I call C -- let me see if I can get this right so I
20   don't have to talk about the question.
21             What I did was called -- it's not on here -- for
22   information about the correct procedure and was told the
23   correct answer was D, and have had several people tell me the
24   same thing.
25             MR. KERTEZ:  Objection, your Honor.  He said he
                                                            569
 1   called several people.  We have no foundation for this.  And I
 2   think we need to lay a little bit of a foundation in order to
 3   have further testimony on this particular point.
 4             THE COURT:  Well, he's alerting, anyway, so he can
 5   give his understanding.  It's not going to be conclusive,
 6   obviously.  But he certainly can give his understanding, but he
 7   can't testify to hearsay.
 8             In any event, there is a possibility that either the
 9   answer stated is incorrect or that there may be two answers.
10             THE WITNESS:  Right.
11             THE COURT:  Two answers may be correct.
12             THE WITNESS:  Right.
13   BY MR. FLAXMAN:
14   Q.  And --
15   A.  And I talked -- I contacted the City administration for
16   answer D is -- is what I -- what I did.  You know, I contacted
17   City Hall administration and they informed me this is the right
18   procedure in order to get this question answered.
19             THE COURT:  And, of course, again we don't know
20   whether there has been some change in something since this was
21   formulated, so -- all right.  Okay.
22   BY MR. FLAXMAN:
23   Q.  Okay, the next page would be --
24             THE COURT:  But, anyway, this does happen to
25   sergeants?
                                                            570
 1             THE WITNESS:  Yeah.
 2   BY MR. FLAXMAN:
 3   Q.  Question 70, could choices C and D both be correct?
 4   A.  Yes.
 5   Q.  Okay.  Question 72, does this relate to the actual activity
 6   of a police sergeant?
 7   A.  Yes, it does.
 8   Q.  Okay.  And is the -- is B what actually happens when a
 9   sergeant is confronted with this situation?
10   A.  Your Honor, the -- the logical step, though, is not -- is
11   not B.
12             The problem -- the problem with this question, I
13   guess, is is that there is a -- the closest logical step -- I
14   mean, B gives the inference that I'm just going to do that and
15   let you go with, you know --
16             THE COURT:  Tell a private tow firm to do the right
17   thing?
18             MR. FLAXMAN:  Right.  Right.  Exactly.  Exactly.
19   Exactly.  That's my point.
20   BY MR. FLAXMAN:
21   Q.  And is that one of the choices on there?
22   A.  No.  No, no.  Because B gives the inference that I'm just
23   going to do that and let you take it anyway.
24   Q.  The next question would be question 75.  Or -- yeah, 75.
25   A.  75.  Yeah.
                                                            571
 1   Q.  Is this important for a field sergeant to know the first
 2   thing on the job?
 3   A.  It's important for a sergeant to know, but every -- the
 4   easiest answer is that it is always given for 99 percent of the
 5   questions asked by agencies such as this.  The reference is
 6   always E, is to direct them to E for release of any
 7   information.
 8             And, in fact, you're punished if you do so yourself,
 9   if you release the information and don't refer them to E, or
10   talk to them about it and not refer them to E.
11   Q.  The next page would be question 76.  Is this something that
12   relates to the actual activity of a Chicago Police Sergeant?
13   A.  Very rarely, but it does.  But it is rare.  But it does --
14   the activity does -- I assume does happen.  However, I have not
15   known of any field sergeant to have -- to have done this.
16   Q.  And is the correct answer, or the answer that's shown to be
17   the correct answer --
18   A.  It's not a logical answer.
19             Your Honor, if you look at C, it assumes that there
20   is no -- if you look at the question assuming that the
21   question -- that he's doing something wrong in the question,
22   then C is not the right answer.
23             Do you see what I'm saying?
24             THE COURT:  Yeah.
25             THE WITNESS:  I would do C and something else.  You
                                                            572
 1   know, I would just let him go.
 2   BY MR. FLAXMAN:
 3   Q.  The next page would be question 81.  Is there more than one
 4   correct answer?
 5   A.  Yes, it is.
 6             And, in my opinion, because of the response in
 7   question -- I'm sorry, your Honor.  81?
 8             THE COURT:  Yeah, I've got 81.
 9             THE WITNESS:  Okay.
10   BY THE WITNESS:
11   A.  The response in question -- to the question in A, even
12   though A is not the correct answer, A gives the illusion -- or
13   not the illusion.  I should say A gives you the cause to think
14   that something serious is taking place.  And if something
15   serious is taking place life takes precedent over property
16   and/or anything else.
17             And so A would be -- when A is chosen as the answer,
18   that is the reason that you would choose -- you know, you would
19   choose A above anything else, because life comes first.
20   BY MR. FLAXMAN:
21   Q.  Choice D relates to an arrest report being prepared at the
22   scene of an incident.
23   A.  Okay.
24   Q.  Does that relate to the actual activity of Chicago Police
25   Officers?
                                                            573
 1   A.  First let me back up and clarify one other thing, your
 2   Honor.
 3             The first sentence of this question is unusual
 4   because a field sergeant would not do that.  Field sergeants
 5   very seldom perform that activity.  Usually it's performed by
 6   the subordinates.  And you would call a subordinate to perform
 7   that activity for you.
 8             So that's -- that is the first problem with it.
 9             Then when you go to D as a response, very seldom, if
10   rare- -- or only under other circumstances, I should say, is
11   this done in the field.
12             This is usually and normally done on a -- on an
13   average basis in -- in the station and not in the field.
14   Q.  Now, the next page would be question 87.  Is it part of the
15   job of a field sergeant to accept bail?
16   A.  Okay, your Honor, this question is -- the problem that I
17   have -- I'm sorry, counsel --
18   Q.  Is it part of the job of a field sergeant to accept bail?
19   A.  No, it is not.
20   Q.  Who accepts bail?
21   A.  The person that accepts bail on traffic violations --
22             THE COURT:  Is the arresting officer, isn't it?
23             THE WITNESS:  That's correct.
24   BY THE WITNESS:
25   A.  And if it's not him, then it would be -- and this as this
                                                            574
 1   question refers to would be a desk sergeant.  But not -- not
 2   the terminology used here.
 3   BY MR. FLAXMAN:
 4   Q.  Now, the next page is question 93.  Is it important for a
 5   police sergeant to know the correct answer to question 93 the
 6   first thing on the job?
 7   A.  No, it is not.  And this goes back to one of my previous
 8   answers when I stated that you would refer to detectives,
 9   attorneys, or watch commanders for the exact charging and -- of
10   the offense.
11             THE COURT:  Well, excuse me, if I could -- I'm
12   running a little behind here on question 87.
13             THE WITNESS:  87?
14             THE COURT:  I'm not sure that -- you might want to
15   reconsider what you said about 87 because it talks about items.
16             THE WITNESS:  Okay, it does talk about items, but the
17   question that counsel asked --
18             THE COURT:  He's trying to find out what is the best
19   thing to take, I take it.
20             THE WITNESS:  Correct.  Well, okay, that may be the
21   best thing to take, but the question that counsel asked me was
22   was this one of the things that a field sergeant would normally
23   do, and the answer to that question would be no.
24             THE COURT:  Oh, I see.  Okay.  Whether it's relevant
25   to --
                                                            575
 1             THE WITNESS:  To his job duties and responsibili-
 2   ties.
 3             THE COURT:  Job duties.  All right.
 4   BY MR. FLAXMAN:
 5   Q.  Now?
 6             THE COURT:  Okay, you may proceed.
 7   BY MR. FLAXMAN:
 8   Q.  Question 93 asks five conducts and asks which would be a
 9   misdemeanor, is that correct?
10   A.  Yes, it does.
11   Q.  Are each of those conducts a crime?
12   A.  Excuse me.  I'm sorry.  Yes.  Yes.
13   Q.  Okay.  And is it important for a sergeant to know the first
14   thing on the job which of those crimes would be classified as a
15   misdemeanor?
16   A.  No, it's not.  He would be able to refer to documentation.
17   Q.  Question 101.  Now, is it important for a -- well, does
18   charging an arrestee with a particular type of felony relate to
19   the actual activity of a field sergeant?
20   A.  No, not to the duties and responsibilities of a field
21   sergeant.
22             As I mentioned earlier, what takes place is -- and
23   this doesn't relate directly to this question, your Honor, but
24   it does in the sense what takes place is the arrest.  You're
25   taking him into the station, you contact the detectives, the
                                                            576
 1   detectives contact state's attorneys, and then approval of
 2   charges, which is done by a watch commander.
 3             So a field sergeant or even a desk sergeant.  The
 4   duties of a desk sergeant, his responsibilities would not be to
 5   actually know as to B when we talk about a -- a monetary amount
 6   in B.
 7   Q.  Well, is the answer to question 101 something that a field
 8   sergeant would, if a field sergeant was required to answer that
 9   question, look up in a book?
10   A.  Yes, he would have to.  Under my estimation he would, yes.
11   Q.  And now the next page would be question 104.  Is question
12   104 -- question 104 asks about seeking approval to charge, is
13   that correct?
14   A.  That's correct.
15   Q.  And would that approval be sought from a state's attorney?
16   A.  It would not be sought from a field sergeant.  It would
17   have to be sought from either a watch commander or a state's
18   attorney to seek approval of charges.
19   Q.  So does question 104 relate to the actual activity of a
20   sergeant?
21   A.  Not from that -- from the question that you've asked me,
22   no, counsel.
23   Q.  Okay.  The next page would be question 109.  What does it
24   mean to classify a crime?
25   A.  The uniform crime -- I'm sorry.  The uniform crime
                                                            577
 1   reporting guidelines, they're guidelines issued by the federal
 2   government as to the classification, and each report has on
 3   there, you know, what you should classify as a crime.
 4   Q.  Now, are crimes classified by the officer on the street?
 5   A.  When he makes out the case report the coded information is
 6   next to the information that is on the case report to code for
 7   the crime so -- which later could be recoded by the detective
 8   division or recoded in the review office if it it is coded
 9   wrong.
10             THE COURT:  So is the correct answer to question 109
11   something that a police officer would look up?
12             THE WITNESS:  Yes, he would have to -- he would have
13   to look it up.  It's too many to memorize.
14   BY MR. FLAXMAN:
15   Q.  Too many?
16   A.  Codes to memorize, right.
17   Q.  The next page is question 110.  Is this question related to
18   the actual activity of a field sergeant?
19   A.  Well, it doesn't -- it is, but, I mean -- well, yeah, it
20   is.
21   Q.  Is there more than one correct answer?
22   A.  You would have to look up this answer.  I mean, you just
23   wouldn't -- you would not know this answer unless you -- under
24   my opinion -- this is my opinion only -- that you would have to
25   look this answer up.
                                                            578
 1   Q.  Okay.  Is it important for a field sergeant to know the
 2   correct answer to question 110 the first day on the job?
 3   A.  What happens is, as what happens in almost every incident,
 4   the offender would be taken into custody, or taken into --
 5   would be taken into the station, and that is where you would
 6   figure out which one of these charges you would place against
 7   the offender, which one would be the correct charge.
 8   Q.  Now question 114.  Question 114 starts with -- has a
 9   scenario where a man is being charged with the offense of
10   robbery, is that correct?
11   A.  That's correct.
12   Q.  And robbery is a felony, is that right?
13   A.  That's correct.
14   Q.  Does that mean that the detective and the state's attorneys
15   would be involved in deciding what other charges, if any,
16   should be filed against --
17   A.  No.  It would be automatic.
18   Q.  So it's important for a field sergeant to know the correct
19   answer to No. --
20   A.  No.  He would have to contact the state's attorney to get
21   approval of charges on it.
22   Q.  The next page would be question 129.  Does question 129
23   relate to the actual activity of a sergeant?
24   A.  No.
25             The reason that this question doesn't is because,
                                                            579
 1   your Honor, if you look at the question, the second sentence,
 2   the required ability to do that always, always has to come
 3   through question C -- I mean response C first.  That has to be
 4   done through C.
 5             And C also has a -- a terminology, wrong terminology.
 6             Could I give you the -- what I think.
 7             THE COURT:  Go ahead.
 8             THE WITNESS:  And it says police.  It shouldn't be
 9   police in C, it should be watch --
10             THE COURT:  Okay.
11   BY THE WITNESS:
12   A.  But that -- you know, that's just the terminology that is
13   used.  But C would always have to first give that before
14   anything else.
15   BY MR. FLAXMAN:
16   Q.  The next page is 32.
17             THE COURT:  So there's two correct answers is what
18   you're saying?
19             THE WITNESS:  Yeah.  Yes, uh-huh.
20             I'm sorry.  Yes.
21             THE COURT:  I guess I don't --
22             MR. FLAXMAN:  Let's go back to 129 if you're --
23             THE COURT:  I don't know whether the instructions
24   are -- on these questions whether there can be more than one
25   correct answer.
                                                            580
 1             I take it that there's only -- you indicated there is
 2   only one correct answer, is that right?
 3             MR. FLAXMAN:  I think the instructions say choose the
 4   best answer.
 5             MS. PAPUSHKEWYCH:  That's correct.
 6             THE COURT:  All right.  But the language would
 7   indicate only one answer?  Okay.
 8             MS. GLINK:  The most correct, I believe is the
 9   language.  I think Dr. Barrett testified that it was the most
10   correct --
11             THE COURT:  Most correct.
12             MS. GLINK:  -- when he testified about the
13   distractors.
14   BY MR. FLAXMAN:
15   Q.  Okay, let's go to 132.  Is it important for a field
16   sergeant to know the correct answer to question 132 the first
17   thing on the job?
18   A.  Once again, no, it is not because of the scenarios that
19   they give.
20             The correct answer would be found, as lawyers and
21   doctors and everyone else refers, to documentation.  And he
22   knows -- he would realize that some type of crime had been
23   committed and maybe there's a charge for it.
24             But I doubt if he would know exactly which particular
25   of the answers, which one would be the right one.  I think he
                                                            581
 1   would have to refer to -- to documentation.
 2   Q.  Okay.  And would the decision that the officer made on the
 3   street be to arrest and bring the person into the station?
 4   A.  The decision -- I'm sorry.  Well, the question says that he
 5   already has made the arrest and he's seeking the approval.  And
 6   the approval of charges is not the field sergeant's duties and
 7   responsibilities, approval of charges would be the watch
 8   commander's responsibilities.
 9   Q.  Now, the next page would be question 133.  Is it important
10   for a field sergeant to know the correct answer to question 133
11   the first day on the job?
12   A.  My personal opinion is I don't think anyone would know the
13   correct answer.  Not even a meter maid would know the correct
14   answer to this without looking it up.
15             I just think that it's --
16   Q.  Is this a commonplace occurrence?
17   A.  No, it is not.
18             I have never -- I've got 26 years, and I've never,
19   ever.
20             If I hadn't looked at this test I would not have -- I
21   think this question I would not never have known the answer to
22   unless I looked it -- I would have to look this question up.
23   Q.  Let me ask you to look at the next page, which is the last
24   page, 138.  Is there more than one correct answer to this?
25   A.  The logical, common sense answer seems to be response A,
                                                            582
 1   because if you see signs posted as -- I'm sorry, not signs
 2   posted.  A, I thought, was the logical response that a sergeant
 3   would make in explanation to -- to the citizen --
 4   Q.  Does choice A relate to the actual activity of a sergeant
 5   in response to the situation of --
 6   A.  Yes, it would.  Yes, it would.
 7             MR. FLAXMAN:  We have another set of questions that
 8   we will be asking is it important for a sergeant to know.  It
 9   might be appropriate to take a short break now.
10             THE COURT:  All right.  You're through with his --
11             MR. FLAXMAN:  Well, no.  I'm going to ask him about
12   the other exhibit, about --
13             THE COURT:  Oh, the next exhibit.
14             MR. FLAXMAN:  Yeah.
15             THE COURT:  All right, let's take a short break, and
16   we'll persevere.
17        (Recess)
18             THE COURT:  All right, court is back in session.
19             It's a little more difficult when you're a senior
20   judge than active.
21             Are we all set?
22             MR. FLAXMAN:  Yes.
23             THE COURT:  You're going to resume your position and
24   you will remain under oath.
25             MR. FLAXMAN:  Add we will tender him for cross
                                                            583
 1   examination.
 2   BY MR. KERTEZ:
 3   Q.  Sergeant Kimber, did you receive a letter from Mr. Flaxman
 4   a couple of weeks ago asking you to come to a meeting on
 5   February 24th, 1996?
 6   A.  Yes, I did.
 7   Q.  And let me show you what I'd like to mark as Defendant's
 8   Exhibit J at this point in time.
 9             THE COURT:  Is that in any of the material that's
10   been submitted?  Or, otherwise, do you have a copy for me?
11             MR. KERTEZ:  Yes, Judge, we do have a copy for you.
12             I believe this was attached to our motion in limine,
13   but it may be helpful for you to have a copy right now.
14             THE COURT:  Well, okay.  All right, I've seen this.
15             Do you have enough copies?
16             MR. KERTEZ:  Yes.
17             THE COURT:  You have extra ones?
18             MR. KERTEZ:  Yes, I do.  Thanks.
19             THE COURT:  And the number?
20             MR. KERTEZ:  The number will be J, I believe.
21             THE COURT:  Okay.
22   BY MR. KERTEZ:
23   Q.  Sgt. Kimber, I'm showing you what I have marked as
24   Defendant's Exhibit J.  Do you recognize it?
25   A.  Yes.  I believe this is a letter that I -- I received.
                                                            584
 1             As I recall, when I got the letter I don't think I
 2   even read the whole letter because I had previously, the day
 3   before or something, talked to him and told him he could use my
 4   office.  So I don't think I read the whole letter.
 5   Q.  But this is a letter that was sent to you, wasn't it?
 6   A.  Correct.  That's correct.
 7   Q.  And this letter says, doesn't it, that we need your help to
 8   block the City from making promotions to sergeant, doesn't it?
 9   A.  I'm sorry, counsel, which paragraph?
10   Q.  Take a look at the first sentence in the first paragraph.
11   A.  Okay.  Correct, the letter states that.
12   Q.  And it also says, Sgt. Kimber, if you look at the last
13   sentence in the second paragraph, "We will also try to prove
14   that a reasonable passing score on the written short answer
15   test would have been about 88," isn't that right?
16   A.  Correct, that is what the -- the document speaks for
17   itself.
18   Q.  And, in fact -- (laughter)
19             THE WITNESS:  Oh, I'm sorry.  I'm sorry.
20             THE COURT:  You're really getting into the lingo.
21             THE WITNESS:  I'm sorry.  (Laughter)
22             THE COURT:  Sustained.  (Laughter)
23             I'm kidding you.  (Laughter)
24             You may proceed.
25   BY MR. KERTEZ:
                                                            585
 1   Q.  And, Sgt. Kimber, you didn't select that number 88, did
 2   you?
 3   A.  No, I did not.
 4   Q.  Do you know who selected that number 88?
 5   A.  No, I do not.
 6   Q.  And on February 24th, 1996 you did go to that meeting,
 7   didn't you, at the guardian's office to discuss the sergeant's
 8   test?
 9   A.  That is correct.
10   Q.  And, again, you went to that meeting based upon this letter
11   that you received from Mr. Flaxman, right?
12   A.  Not wholly.  Not in its entirety, I should say.  Not
13   entirely on the letter.
14   Q.  But one of the reasons you went was because of this letter,
15   correct?
16   A.  One of the reasons, correct.
17   Q.  And at that meeting you did receive a copy of the written
18   multiple choice job knowledge test, isn't that right?
19   A.  And I assume that you're referring to the 150 questions --
20   Q.  That's right.
21   A.  Okay.  Yes, that is correct.
22   Q.  Have you ever seen that multiple choice test before?
23   A.  To the best of my knowledge, no.  As I can recall, no, I
24   don't think I have.
25   Q.  At the time that you looked at those questions were you
                                                            586
 1   aware that there were other components to the examination?
 2   A.  Yes, I was.
 3   Q.  And during that meeting on February 24th of 1996 --
 4             THE COURT:  Well -- okay, go ahead.  I'm sorry.  Go
 5   ahead.
 6   BY MR. KERTEZ:
 7   Q.  And during meeting on February 24th, Sgt. Kimber, you
 8   didn't look at the in-basket simulation portion, did you?
 9   A.  No, I did not.
10   Q.  Have you ever seen a copy of the in-basket simulation to
11   the 1993 police sergeant test?
12   A.  Yes, I have.
13   Q.  And during that February 24th meeting you also didn't see
14   any portion of the oral examination, did you?
15   A.  That is correct.
16   Q.  Have you ever seen any portion of the oral examination?
17   A.  Yes, I have.
18   Q.  Did you see that portion of the oral exam prior to February
19   24?
20   A.  No, I did not.
21   Q.  Did you ever see any part of the in-basket prior to
22   February 24th?
23   A.  No, I did not.
24   Q.  Sgt. Kimber, you never did a job analysis for the position
25   of police sergeant, did you?
                                                            587
 1             MR. FLAXMAN:  Objection.  It's beyond the scope of
 2   direct.
 3             THE COURT:  No.  I think that it would relate to the
 4   extent of his knowledge as to the sergeant's activities and
 5   scope of expected work, and so I'll overrule the objection and
 6   permit him to answer.
 7   BY THE WITNESS:
 8   A.  Counsel, what you mean by a job analysis?  Can you give
 9   me --
10   Q.  Yes.  What I mean is did you ever do a job analysis in that
11   you would interview people who performed the job, that you
12   would prepare a job description, that you would do those types
13   of activities?
14   A.  For the position of sergeant?
15   Q.  That's right.
16   A.  No.
17   Q.  In your testimony yesterday, if you recall, you testified
18   that you haven't performed every function that a sergeant
19   performs during your career with the Chicago Police Department,
20   isn't that true?
21   A.  I don't think that was -- I don't recall that being my
22   testimony.  I'd have to ask the court reporter to pull that.
23             I don't recall that being my direct testimony on
24   that.
25             It may be, but I don't recall making that statement.
                                                            588
 1   Q.  Have you ever served as a neighborhood relations sergeant?
 2   A.  No, I have not.
 3   Q.  And I believe that's what you testified to yesterday?
 4   A.  Correct.
 5   Q.  You have never served as a tactical sergeant either, have
 6   you?
 7   A.  No, I have not.
 8   Q.  And you've never served as a gang sergeant, isn't that what
 9   you testified to yesterday, I believe?
10   A.  I believe to the question of gang and tactical sergeant --
11   I think my response was in rapid response.  I think those were
12   the questions that you asked me yesterday.
13             And my response was that in the 11th District I
14   worked as a field sergeant and I was the only sergeant working
15   the street.
16             So whatever terminology that you classified as a
17   sergeant doing duties and responsibilities, I was that
18   sergeant, because I was -- there were no other sergeants
19   working the street.
20             And after further reflecting on that same question
21   that you asked me yesterday, also in the 3rd District I did the
22   same thing as the only sergeant working the street.
23             So whatever terminology that would be used for gang
24   sergeant, field sergeant, sector sergeant, I was that sergeant.
25   There was no other sergeant working the street.
                                                            589
 1   Q.  Isn't it true that you haven't been a sergeant on the
 2   street for the last 10 years?
 3   A.  No, that is not.  That's not true.
 4   Q.  When was the last time that you --
 5   A.  Oh, I'm sorry.  You said 10 years?
 6   Q.  The last 10 years.
 7   A.  Oh, okay.  I've worked the street -- I've been in this unit
 8   for 8 years.  I worked the street as a field sergeant two years
 9   ago.  I worked special employment two years ago in public
10   housing, or -- yeah, two years ago.
11   Q.  But for the past 10 years, for the main part, you've been
12   assigned to the labor management relations unit, isn't that
13   right?
14   A.  No.  I've been assigned to the labor unit for --
15   Q.  8 years?
16   A.  8 areas.
17   Q.  All right.  I'm sorry, I misspoke.  And in communications
18   for those other two years?
19   A.  That's correct.
20   Q.  And the labor management position doesn't require you to go
21   out in the street and be a field sergeant, does it?
22   A.  No, it does not.  I field questions from field sergeants
23   about duties and responsibilities as to managing the labor
24   questions that deals with field sergeants and field lieutenants
25   and commanders.
                                                            590
 1   Q.  Sgt. Kimber, you've never seen the instructions to the 1993
 2   police sergeant examination, have you?
 3   A.  No.  I think the only thing I've seen is what I've signed a
 4   court order signed.
 5             The only thing I have seen is what I've signed a
 6   court order to -- to -- not to reveal.
 7   Q.  Sgt. Kimber, do you still have what has been marked as
 8   Plaintiffs' Exhibit No. 54?
 9   A.  No, I do not.
10   Q.  Can we -- thank you.
11             Your Honor, do you still have a copy of that?
12             THE COURT:  Yes, I do, right here.
13   BY MR. KERTEZ:
14   Q.  Sgt. Kimber, I'd first like to direct your attention to
15   question No. 6.  And I would like to show you General Order
16   83-12, effective date September 2nd, 1983.  And I'd like to
17   direct your attention to the last part of that general order
18   that says confidential number checked to the very next page,
19   the first two lines.
20             Take a second to review that if you'd like.
21             Have you had a chance to review that, Sgt. Kimber?
22   A.  Yes, I have.
23   Q.  And that particular general order that I've just showed you
24   has as the answer that it would require answer D, isn't that
25   right?
                                                            591
 1   A.  What you have marked on the order is that it is answer D.
 2   But --
 3   Q.  But that is the answer that would be required under the
 4   general order if you read it, am I not right?
 5             Take as much time as you'd like to read the question.
 6   Take a look at the general order.
 7             MR. FLAXMAN:  Do you have another copy?
 8             MR. KERTEZ:  Unfortunately, I do not.
 9             THE COURT:  Well, let counsel take a look at it if he
10   wants to look at it.
11             MR. KERTEZ:  I have no problem with that.
12             MR. FLAXMAN:  Thank you.
13             THE COURT:  Do you recall his language --
14             THE WITNESS:  Yes.
15             I'm sorry.
16             THE COURT:  -- the witness's language when he
17   testified on question 6?
18             MR. KERTEZ:  Yes.
19             THE COURT:  Okay.
20             MR. KERTEZ:  I'm asking him a very discrete question.
21             THE COURT:  I'm not sure that he ever said that the
22   stated answer was wrong.  I'm not sure what you're --
23             MR. KERTEZ:  I understand.
24             THE COURT:  -- you're bringing out.
25             MR. KERTEZ:  I just want to bring out --
                                                            592
 1             THE COURT:  And you're the only one that's mentioned
 2   certain words.  So you'll want to take that into account as
 3   well in how you phrase your questions.
 4             MR. KERTEZ:  I understand.
 5             THE COURT:  Okay.
 6             MR. KERTEZ:  I don't intend to reveal the contents of
 7   the test.
 8   BY MR. KERTEZ:
 9   Q.  Sergeant Kimber, doesn't the -- the general order that I
10   just gave you does indicate what the correct answer would be
11   according to that general order for question No. 6, doesn't it?
12   A.  Let's see, how can I explain it so that I don't -- well,
13   you're asking me for my response?
14   Q.  Yes.  Yes.
15   A.  Okay, let me respond.
16             My response is is that the question doesn't match up.
17   The order refers to something that is done -- for what is done
18   if -- if you have this problem, whatever you want to say on
19   that.
20             But the question -- my response to the question is --
21   was -- when under direct was that you wouldn't have to really
22   know and it's not actually done.
23             But I think my response -- I think my response was
24   that this is not normally done by field sergeants working the
25   field, or even, for that matter -- for that matter even
                                                            593
 1   officers working in the field.  This procedure is not normally
 2   done by them.  And it would be a rarity that they would know to
 3   do this.
 4             I think that was somewhat my response initially on
 5   the direct.
 6             Does that answer your question?
 7   Q.  No.  No, it doesn't, sergeant.
 8   A.  Okay.
 9   Q.  But isn't the procedure in the general order -- I'm not
10   saying what you're doing in practice.  That's a whole other
11   issue.  I understood what you testified about --
12   A.  Okay.
13   Q.  -- regarding that.  I'm saying what the general order
14   states should be done is in that general order and it showed
15   that the response would be D, according to the general order.
16             I'm not talking about what it is in practice, just
17   what the general order says.
18   A.  Okay.
19   Q.  That's all I'm asking.
20   A.  All right.
21             Yes.
22   Q.  Thank you.
23             MR. FLAXMAN:  I would ask if we're going to be
24   referring to general orders that we be marking them as exhibits
25   and then making them part of the record.
                                                            594
 1             THE COURT:  Yeah, we really should, because otherwise
 2   we're going to really have a problem.
 3             MR. KERTEZ:  And if you'd like to do that, Judge --
 4             THE COURT:  Do you have enough copies?
 5             Well, we just only need one copy for now that --
 6             MR. KERTEZ:  Well, we can use one copy and then
 7   provide --
 8             MR. FLAXMAN:  We need to give it a number, because
 9   we'll be stipulating that it's admissible.
10             THE COURT:  Right.  Can we have a series for this?
11             MS. PAPUSHKEWYCH:  Yes.
12             MS. GLINK:  Your Honor, can we number them here and
13   copy them and give a copy to the Court?
14             THE COURT:  Sure.  Oh, yeah.
15             How do you want to designate them as exhibits now?
16             MS. GLINK:  We are on --
17             MS. PAPUSHKEWYCH:  I.
18             MS. GLINK:  I.
19             THE COURT:  Do you want to have a double letter or
20   something?
21             MR. FLAXMAN:  K-1.
22             THE COURT:  K 1, 2, 3, 4, 5, you mean?
23             MS. PAPUSHKEWYCH:  Right.
24             THE COURT:  Okay.  So that General Order 83-12 will
25   be Defendant's Exhibit K-1.
                                                            595
 1   BY MR. KERTEZ:
 2   Q.  And, Sgt. Kimber, I'm also go to be showing what is the
 3   source list of materials for the written test.  This is
 4   Appendix F to Dr. Barrett's technical report which we have
 5   already previously marked as Exhibit D.
 6             And let me just ask you this.  Is General Order 83-12
 7   on that source list?
 8   A.  Yes, it is, under -- I'm sorry, counsel, 83 -- what was
 9   your question, 83-12?
10   Q.  That's right.
11   A.  Yes, 83-12 is on the source list under vehicle towing
12   operations.
13   Q.  All right.  Thank you.  Now I'd like -- well, first of all,
14   on question No. 11 you testified, didn't you, that in fact
15   question 11 was a good question as far as you're concerned?
16   Isn't that right?
17   A.  That's correct.
18   Q.  And now I'd like to show you what is General Order 86-8, if
19   I could.  And I guess that would --
20             THE COURT:  Let's mark it K-2?
21             MR. KERTEZ:  K-2.
22             THE COURT:  K-2.
23   BY MR. KERTEZ:
24   Q.  And ask you if in fact the answer to question 11 can be
25   found in that general order, or the answer that the general
                                                            596
 1   order would require is there?
 2   A.  Yes.  I believe I said question 11 was a -- I didn't have a
 3   problem with question 11.
 4   Q.  I understand.  I'm just asking --
 5   A.  Oh, okay.  And the general order refers to --
 6             THE COURT:  Well, we don't need to -- do we need to
 7   denominate in any more detail than that?
 8             MR. KERTEZ:  I guess not.
 9             MR. FLAXMAN:  Well, the general order number has been
10   identified --
11             THE COURT:  Right.
12             MR. FLAXMAN:  -- and general orders are sort of
13   public.  I mean, everybody knows what 86 is.
14             THE COURT:  I'll stand corrected.
15             MR. KERTEZ:  Well, let me ask the question.
16   BY MR. KERTEZ:
17   Q.  Does the answer to question 11 as is required by general --
18   that general order, is it contained in that general order?
19   A.  Hang on a second, because, you know, I don't have a problem
20   with the question 11, I just want to make sure the information
21   on 11 is in the order that you're asking me about.
22   Q.  Uh-huh.  Take your time.
23   A.  Yes.  Okay.
24             THE COURT:  It would be helpful if you'd direct him
25   to it.  If you know it's in there --
                                                            597
 1             MR. KERTEZ:  I'll show him.  I will direct --
 2             THE COURT:  We're not testing his ability to read --
 3             MR. KERTEZ:  No.
 4             THE COURT:  -- so.
 5             MR. KERTEZ:  No.  I'll make it as easy as possible.
 6             THE COURT:  That's already established.
 7             THE WITNESS:  My contacts are bothering me.
 8   BY MS. PAPUSHKEWYCH:
 9   Q.  And, Sgt. Kimber, as far as General Order 86-8, which you
10   just reviewed and looked at, is that in the reading source list
11   for the 1993 police sergeant exam?
12   A.  Yes.  Yes, it is.
13             THE COURT:  And that reading source list was made
14   public anyway as part of the exam.
15             MR. KERTEZ:  That's right.
16             THE COURT:  Okay.
17   BY MR. KERTEZ:
18   Q.  Okay, Sgt. Kimber, I'd like to now draw your attention to
19   question No. 19.  Before I do that, though, I would just like
20   to ask this question.  Isn't it true that a sergeant needs to
21   know the elements of a crime?
22   A.  Yes.
23   Q.  All right.  Now let's go to back to question 19 for a
24   second.
25   A.  Uh-huh.
                                                            598
 1   Q.  I'm now going to show you what is Addendum No. 70 to
 2   General Order No. 93-3, which is January 13th, 1993.  If you
 3   can review this and tell me if the correct answer according to
 4   that general order is contained in that particular general
 5   order.
 6   A.  Counsel, can you refer me directly to it, just so I don't
 7   have to -- to what section of the general order that you're
 8   referring to.
 9   Q.  Okay.
10   A.  My testimony on direct that this is not -- this question
11   has -- and, in fact, the -- the score sheet, if you'll notice
12   on the score sheet it has a twofold answer.
13             MR. KERTEZ:  I understand.
14             Excuse me, Judge, one second, please.
15             THE COURT:  Yes.
16             MR. FLAXMAN:  It might be, Judge, that if we broke
17   early and they regrouped and got this together it would go much
18   quicker in the morning.
19             And I'm not criticizing them, but I've been in this
20   situation, and it can go a lot quicker.
21             MS. GLINK:  Pardon me?
22             MR. FLAXMAN:  I say that we break today and you come
23   back and do it quickly tomorrow with copies for everybody and
24   pointing things out.
25             MS. PAPUSHKEWYCH:  No, your Honor.  We would just
                                                            599
 1   like to continue.  We are under some time pressures in this
 2   courtroom, and we will muddle through until 4:30 if we're
 3   allowed to.
 4             THE COURT:  All right, they'll persevere.
 5   BY MR. KERTEZ:
 6   Q.  Sgt. Kimber, I think I'm going to return to question 19
 7   tomorrow.
 8   A.  Okay.
 9   Q.  Let's go over to question 17 for a second.  I'm going to
10   show you General Order 92-1 dated July 3rd, 1992.
11             MR. FLAXMAN:  Would this be K-4?
12             MS. PAPUSHKEWYCH:  K-3.
13             MR. KERTEZ:  K-3.
14             MR. FLAXMAN:  92 what?
15             MR. KERTEZ:  That would be 92-1.
16   BY MR. KERTEZ:
17   Q.  And I'm going to direct your attention to -- actually, what
18   I'm going to do is I'm going to direct your attention to what
19   appears to be 720 Illinois Compiled Statutes 5/16-1, which is
20   appended to this general order, and direct you to what is
21   5/16-1.3.  And that would include Section A and then the next
22   section, C.
23             Could you review that for a second.
24   A.  Okay.  One thing, counsel, no general order comes with the
25   criminal law procedure as an appendix to it.  So --
                                                            600
 1   Q.  All right.  Well, we will just consider that ILCS number.
 2   Okay, that's what I would like you to look at.
 3   A.  Okay.  Can I take this apart?
 4   Q.  You can keep it intact for now.
 5   A.  Okay.
 6   Q.  But we'll enter our K-3 as that particular ILCS --
 7             THE COURT:  Well, you could have a group exhibit.
 8   Are you going to call it K-3?
 9             MR. KERTEZ:  All right, make it K-3, that group
10   exhibit, that's fine, with the understanding that that's the
11   case.
12             THE COURT:  Okay.
13   BY MR. KERTEZ:
14   Q.  Isn't it true that in fact that particular statutory
15   citation provides the answer that the statute would require for
16   question No. 17?
17   A.  Right.  As I -- counsel, I'm sorry.  As I said, counsel,
18   just for clarification of the Court, this order does not come
19   with the state statute attached to it.
20             And in response to your question -- in fact, on the
21   direct I said someone would have to look this up to this
22   question, question 17.  And it does say 5161.3 does refer to E
23   as the correct answer.
24             MR. KERTEZ:  Your Honor, I've been asking the witness
25   yes or no questions.  I think this could have been answered as
                                                            601
 1   a yes or no.  I would ask that you strike that additional --
 2             THE COURT:  I think it's responsive.  I'll overrule
 3   or deny the motion to strike.
 4   BY MR. KERTEZ:
 5   Q.  The question is, again:  Is the answer that the Illinois
 6   Compiled Statutes would require contained in that particular
 7   Illinois Compiled Statutes that I have given you?  That's the
 8   only thing I'm asking you.
 9   A.  Yes, it is.
10             THE COURT:  And just so everybody understands that I
11   have made notes and we'll have the benefit of the transcript as
12   well, but his answer was that this is not something that a
13   sergeant needs to know the first day.  That was essentially his
14   answer.
15             Now, whether that is the criteria to be used, that he
16   needs to know the first day or needs to know period is
17   something that may be subject to argument.  I'm not sure
18   whether that's going to be raised or not.
19             MR. KERTEZ:  I understand.
20   BY MR. KERTEZ:
21   Q.  And, Sgt. Kimber, is 720 ILCS 5/16-1 on the source reading
22   list?
23   A.  I don't see it.
24             You said -- what's the number again?  17?
25             MR. FLAXMAN:  No.  720.
                                                            602
 1             THE WITNESS:  Okay.
 2   BY THE WITNESS:
 3   A.  720 is, yes.
 4             What's the number again?
 5   Q.  725/16-1.
 6   A.  I'm sorry, your Honor.  Or, counsel, maybe you need to take
 7   a look at it, because you're not reading me the same numbers
 8   that's showing up on the reading list.  The reading list shows
 9   them as Title 720, Title 3, and then some other numbers.  So I
10   want to be correct on the same numbers that you're referring
11   to.
12   Q.  Okay.  Is it not true that the reading list includes
13   Chapter 720, Section 5, Title 3, Part C, Article 16, theft and
14   related offenses, which is what this particular citation is?
15             You can take a look at it if you'd like.  In fact,
16   I'll even show you.
17   A.  Okay.  Can you direct me to it?
18   Q.  Oh, sure.  Not a problem.
19   A.  Okay.  Now, your question refers to this section?
20   Q.  16, right.
21   A.  Okay.  And it refers to question 17?  Is that your --
22   Q.  That's right.  And that -- what I'm asking you is -- the
23   only question that I have before you right now is that that
24   particular citation to the Illinois Compiled Statutes is within
25   the source list for the 1993 police sergeant's exam, isn't that
                                                            603
 1   right?
 2   A.  Oh, I'm sorry.  Yeah, the question you asked -- I'm sorry,
 3   I'm confused on it.  The question that you're asking me relates
 4   just to the source list, not to the --
 5   Q.  That's right.
 6   A.  Okay.  Yes.  Yes, it does.
 7             THE COURT:  Aren't you asking something that's
 8   already in evidence?
 9             MR. KERTEZ:  No, your Honor, I don't believe it is in
10   evidence at this point in time.  I don't believe that you have
11   at this point the general orders that provide the answers to
12   these various questions.  And that's what we're doing right
13   now.
14             MR. FLAXMAN:  We will be stipulating to the
15   admissibility of all these general orders.
16             THE COURT:  If the general orders can come in by
17   stipulation the rest is argument.  Because I certainly can
18   compare the general order with the list that's already in
19   evidence.
20             Do we really need the witness as kind of a bridge
21   here?  I don't know that that's really -- he's not adding
22   anything, he's just reading what is on a document that's in
23   evidence.
24             MR. KERTEZ:  Your Honor, what we're trying to show
25   here --
                                                            604
 1             THE COURT:  Isn't he?  I mean, I'm just trying to
 2   save some time.  That's all.
 3             MR. KERTEZ:  Your Honor, I understand.
 4             Could you give me one second, please?
 5             MS. PAPUSHKEWYCH:  We are willing to stipulate.
 6             MR. KERTEZ:  Yeah, we'll stipulate --
 7             MS. PAPUSHKEWYCH:  Would you allow us to speak with
 8   Mr. Flaxman?
 9             THE COURT:  Yeah.
10             MS. PAPUSHKEWYCH:  Actually, we can break now to
11   speak with Mr. Flaxman --
12             THE COURT:  Right.  Let's --
13             MS. PAPUSHKEWYCH:  -- and see whether this can be --
14             THE COURT:  -- adjourn for the day --
15             MS. PAPUSHKEWYCH:  Sure.
16             THE COURT:  -- because I think maybe there's a way we
17   can shorten some of this up.
18        (Proceedings recessed at 4:23 p.m. and a discussion ensued
19        on scheduling estimations)
20                        C E R T I F I C A T E
21             I hereby certify that the foregoing is a correct
     transcript from the record of proceedings in the above-entitled
22   matter.
23
     ********************************     ************************
24   Court Reporter                            Date
25
                                                        
1                   THE UNITED STATES DISTRICT COURT
                      NORTHERN DISTRICT OF ILLINOIS
2                           EASTERN DIVISION
      
3     
      PEGGY L. ADAMS, et al.,           )
4                                       )
                    Plaintiffs,         )
5                                       )
            v.                          )  No. 94 C 5727
6                                       )
      CITY OF CHICAGO,                  )  Chicago, Illinois
7                                       )  March 8, 1996
                                        )  9:00 a.m.
8                   Defendant.          )  Preliminary Injunction
      
9     
                        TRANSCRIPT OF PROCEEDINGS
         10                 BEFORE THE HONORABLE JOHN A. NORDBERG
      
         11     APPEARANCES:
      
         12     For the Plaintiffs:          MR. KENNETH N. FLAXMAN
                                   122 South Michigan Avenue
         13                                  Suite 1850
                                   Chicago, Illinois  60603-6107
         14     
      
         15     For the Defendant:           HON. SUSAN S. SHER,
                                   Corporation Counsel, by
         16                                  MS. DARKA S. PAPUSHKEWYCH
                                   MS. SHONA B. GLINK
         17                                  MR. JAY MICHAEL KERTEZ
                                   Assistant Corporation Counsels
         18                                  30 North LaSalle Street
                                   Suite 1020
         19                                  Chicago, Illinois  60602
      
         20     
      
         21     
      
         22     
      
         23                    TRACEY D. McCULLOUGH, CSR, RPR
                         Official Court Reporter
         24                 219 South Dearborn Street, Suite 1420
                        Chicago, Illinois  60604
         25                            (312) 922-3716
                                                            605
1              THE CLERK:  94 C 5727, Adams versus the City of
2     Chicago.
3              THE COURT:  All right.  Good morning.  Sorry to be
4     late here, but we've got some other matters.  And we can go
5     till 1:30 and then we would break for an hour and then we can
6     go until 4:30, if that's satisfactory --
7              MS. PAPUSHKEWYCH:  Yes.
8              MR. FLAXMAN:  Yes.
9              THE COURT:  -- for everybody.  Okay.  Great.  All
         10     right.  Do we have any preliminary matters before we continue
         11     with testimony?
         12              I would like by the end of the day, though, to go
         13     over how we are going to handle the exhibits on this.  And,
         14     you know, it isn't necessary that an entire exhibit go in if
         15     you're only offering it for a small portion of it.  Now, I
         16     appreciate that sometimes creates a problem, but we have got
         17     an awful lot of material here that may or may not be
         18     relevant, and so that's one of the considerations as to how
         19     we are going to determine the extent of all these exhibits
         20     that should be received in evidence.
         21              All right.  If we are set, let's call the next
         22     witness or continue with our witness.  All right.  Sir, you
         23     remain under oath and counsel may proceed now.
         24              MR. KERTEZ:  Your Honor, we have no further
         25     questions of this particular witness at this time, pending,
                                                            606
                            Kimber - redirect
1     of course, the stipulation that we will be entering regarding
2     the line of questioning we pursued yesterday.
3              THE COURT:  All right.  Do we have some redirect
4     now?
5              MR. FLAXMAN:  I think I have one or two redirect.
6              THE COURT:  Do you need any time to talk with the
7     witness?
8              MR. FLAXMAN:  I need time to get organized because I
9     didn't think I was going to be doing this.
         10              THE COURT:  Should we take a short break?
         11              MR. FLAXMAN:  Yes.
         12              MS. PAPUSHKEWYCH:  That's fine.
         13         (Short break taken.)
         14              THE COURT:  You may proceed now with redirect.
         15              MR. FLAXMAN:  Thank you, Your Honor.
         16     SERGEANT VANCE KIMBER, PLAINTIFFS' WITNESS, PREVIOUSLY SWORN
         17                         REDIRECT EXAMINATION
         18     BY MR. FLAXMAN:
         19     Q.  When Mr. Kertez yesterday showed you the reading list for
         20     the exam for the sergeants exam, did you see on there
         21     something called the incident reporting guide?
         22     A.  To the best of my recollection, no, I did not.
         23     Q.  Could you tell us what the incident reporting guide is.
         24     A.  The incident reporting guide -- the incident reporting
         25     guide that is issued by the police department to officers
                                                            607
                            Kimber - redirect
1     that work the field, and officers use it to report the crime.
2     For case reporting purposes it classifies what the first and
3     secondary classifications should be and for the federal
4     guidelines it gives a coding for each incident.
5              For battery it has a certain coding.  Robbery has a
6     certain coding.  And this goes into a database at a later
7     date.  A field sergeant what he does with the incident
8     reporting guide turns around and reviews it to make sure that
9     the officers have properly classified and coded the reporting
         10     incident of crime, whichever it may be, correctly.
         11     Q.  So is it accurate that the field -- the incident
         12     reporting guide relates to the actual activities of a police
         13     sergeant?
         14     A.  Yes, it is.
         15     Q.  Now, before you testified here today, did you ever have a
         16     chance to review the in-basket component of the 1993
         17     sergeant's exam?
         18     A.  Yes, I did.
         19              MR. KERTEZ:  Objection, Your Honor.  Objection.  I
         20     would like an opportunity at this point to address the Court
         21     very briefly in terms of the in-basket.  And it's also
         22     outside of the scope of his direct at this point in time and
         23     of the scope of my cross.  We did not go over the in-basket
         24     during my cross.
         25              THE COURT:  You will have an opportunity to do it.
                                                            608
                            Kimber - redirect
1     We really want to bring out all the evidence.
2              MR. KERTEZ:  I know.
3              THE COURT:  And I'm not going to be limiting him
4     strictly to what has been presented on direct because you
5     will have a full opportunity to cross-examine.
6              MR. KERTEZ:  Your Honor, at this moment I'd like to
7     bring a very short motion before the Court, if I may.
8              THE COURT:  All right.
9              MR. KERTEZ:  Judge, this is our motion to bar the
         10     opinion testimony of plaintiffs' nonexpert witnesses
         11     regarding the in-basket and the oral simulation -- the
         12     in-basket simulation and the oral briefing exercise.
         13              If I may, Your Honor, you ruled that the plaintiffs'
         14     subject matter experts could testify regarding their opinion
         15     as to whether particular questions on the 1993 sergeant's
         16     examination related to the job of a Chicago police sergeant.
         17     Therefore, one of plaintiffs' subject matter experts was
         18     allowed to testify regarding his opinion as to whether
         19     particular questions on the written job knowledge multiple
         20     choice portion of the examination covered material a sergeant
         21     needed to know and whether the answers to those questions
         22     were correct in his opinion.
         23              This Court, however, also ruled that the subject
         24     matter experts may not offer an opinion regarding the design
         25     of the components of the examination because they do not have
                                                            609
                            Kimber - redirect
1     expertise in this area.  Your ruling permitting the
2     plaintiffs' subject matter experts to testify about whether
3     questions relate to the job of sergeant should not apply to
4     the in-basket simulation or the oral briefing exercise.
5     Those components did not contain questions regarding job
6     knowledge.  Instead those components were designed to test
7     skills and abilities.
8              As Your Honor ruled, plaintiffs' subject matter
9     experts are not experts in how to design measures of skills
         10     and abilities.  Therefore, their testimony should be limited
         11     to whether the skills and abilities measured in those tests;
         12     that is, administrative and organizational skills and oral
         13     communication skills are skills and abilities important for a
         14     sergeant to possess.
         15              Beyond that it's our position that their opinion
         16     regarding the in-basket and the oral briefing exercise is
         17     irrelevant.
         18              THE COURT:  Do you plan to go --
         19              MR. FLAXMAN:  No.
         20              THE COURT:  -- beyond --
         21              MR. FLAXMAN:  What he's going to say -- well, my
         22     questions are designed not to elicit that kind of evidence.
         23     And I think it will be obvious when I proceed.
         24              THE COURT:  I did not intend to limit my previous
         25     change of ruling, because I was convinced I was in error, to
                                                            610
                            Kimber - redirect
1     just one portion of the exam.  I meant to apply to all of it.
2     But there's the same basic limitation.  He can testify as to
3     job description and job activities and the like.
4              But he can't testify as to how questions should be
5     formulated or to the extent what is scientifically correct in
6     singling out a particular area for in-basket or the like,
7     because he doesn't have the background or training or
8     education for that.  So it seems to me that you're
9     anticipating something that counsel has indicated he does not
         10     seek to do.
         11              If you feel he strays from his representation,
         12     you're free, of course, to make an objection.  But it seems
         13     to me that there really isn't anything concrete for me to
         14     rule on at this point, and I'm not going to try to articulate
         15     a motion in limine that's any more detailed than what I
         16     already have articulated.  So we will keep all of this in
         17     mind.  And if you feel that he's going beyond job description
         18     or job explanation into the psychometric, psychological
         19     testing area, you should make an objection so I can rule on
         20     it at that time.
         21              MR. KERTEZ:  I will, Judge.
         22              THE COURT:  All right.  You may continue then.
         23     BY MR. FLAXMAN:
         24     Q.  Getting back to the incident reporting guide that wasn't
         25     on the reading list for the 1993 sergeant's test, was the --
                                                            611
                            Kimber - redirect
1     is the material that's contained in the incident reporting
2     guide of a type of information that was involved in the
3     in-basket test?
4     A.  When you say an in-basket, you're talking about the --
5     Q.  The 60 question in-basket exercise based on the 30 pages
6     or so of reading materials.
7     A.  Okay.  Give me a second to -- I am trying to review it in
8     my mind mentally what was on that in-basket.  One second.
9     Give me a second to think on it.
         10              THE COURT:  Do you have any exhibits you want to
         11     show him to refresh his recollection.
         12              MR. FLAXMAN:  Yes.
         13         (Brief pause.)
         14              MR. FLAXMAN:  I actually don't seem to have one.
         15     BY MR. FLAXMAN:
         16     Q.  Can you recall without being referred to --
         17     A.  Yes.  Let me think a second.  As I recall, what the
         18     incident reporting guide does it leads you to the
         19     classification of things that you need to do.
         20              So just from memory and just -- to the best of my
         21     recollection some of the information that would be on the
         22     incident reporting guide would indeed be helpful in anything
         23     that would be involved in the in-basket portion of the test.
         24     And that is only from recollection from -- I had a short
         25     preview of that in-basket test.
                                                            612
                            Kimber - redirect
1     Q.  Let me show you what's previously been marked as
2     Defendant's Exhibit K-1.  That was General Order 83-12.  And
3     I think we agreed or we stipulated that that's related to --
4     that the answer to question No. 6 is found in that general
5     order.
6              Can you tell us what the subject of that general
7     order is?
8     A.  Yes.  This order deals with vehicle -- the title of the
9     order is vehicle towing operations.
         10     Q.  And how many pages is that order?
         11     A.  10.
         12     Q.  And is there a definition of a confidential number check
         13     in that order?
         14     A.  Yes, it is.
         15     Q.  And what page does that appear on?
         16     A.  The first page.
         17     Q.  Well, before you testified on redirect, did you have a
         18     chance to look through that order?
         19     A.  Yes, I did.
         20     Q.  Did you see anything in that order about a field
         21     sergeant's duties with respect to a confidential number
         22     check?
         23     A.  No, I didn't.
         24     Q.  Could tell us briefly what that order relates to, or to
         25     whom is that order directed.
                                                            613
                            Kimber - redirect
1     A.  Well, it's directed -- all general orders are directed to
2     everyone in the Police Department.  But on a vehicle towing
3     operations it refers to what actually has to be done when a
4     vehicle should be towed.
5              The confidential number -- if you notice at the
6     bottom of this order, the confidential number check usually
7     refers to as I mentioned under -- when you asked me that
8     question under direct, that wording only comes up in the auto
9     theft and in the -- and then in the towing -- the auto
         10     pounds.
         11              It does not come up on a daily basis on a field stop
         12     by a patrolman.  It does not come up on a field stop by a
         13     sergeant or even a field stop by a lieutenant.  It is
         14     terminology that would only be found usually in general terms
         15     in the auto theft unit and in the towing department.
         16              And that's because when you read the definition of
         17     the confidential check it refers to that has been tampered or
         18     removed and is questionable.  So it really goes toward that,
         19     toward those entities I mentioned.
         20     Q.  Is the definition of confidential number check the
         21     principal focus of that general order?
         22     A.  No, it is not.
         23     Q.  As a matter of fact, is it mentioned more than once in
         24     the general order?
         25     A.  When I reviewed the order, I did not find it mentioned
                                                            614
                            Kimber - recross
1     again in this order.  However, the other definitions are
2     mentioned throughout the order.  But this confidential number
3     check I did not find it mentioned when I perused it.  I did
4     not find it mentioned again.
5              MR. FLAXMAN:  Thank you.  Nothing further.
6              THE COURT:  All right.  Any additional questions on
7     cross now?
8              MR. KERTEZ:  Yes, Your Honor.
9                          RECROSS-EXAMINATION
         10     BY MR. KERTEZ:
         11     Q.  Sergeant Kimber, isn't it true that sergeants in the
         12     Chicago Police Department have to review paperwork on a
         13     regular basis?
         14     A.  Correct.
         15     Q.  And isn't it true that sergeants have to complete forms
         16     and reports?
         17     A.  That is correct.
         18     Q.  And isn't it also true that sergeants may be called upon
         19     to instruct their police officers who are under their
         20     supervision as to how to properly complete case reports?
         21     A.  That is correct.
         22              MR. KERTEZ:  One second, Your Honor.
         23              THE COURT:  Yes.
         24         (Brief pause.)
         25              MR. KERTEZ:  I have no further questions of this
                                                            615
                              Byrd - direct
1     witness at this time.
2              THE COURT:  All right.  That concludes your
3     testimony then and you're excused.
4              THE WITNESS:  Thank you.
5         (Witness excused.)
6              MR. FLAXMAN:  Judge, our next witness is Sergeant
7     Doris Byrd, B-y-r-d.
8            DORIS M. BYRD, PLAINTIFFS' WITNESS, DULY SWORN
9              THE COURT:  All right.  Please be seated.  Fire when
         10     ready.
         11                          DIRECT EXAMINATION
         12     BY MR. FLAXMAN:
         13     Q.  Would you state your name and spell your last name,
         14     please.
         15     A.  Doris M. Byrd, B-y-r-d.
         16     Q.  Have you previously testified in this hearing?
         17     A.  Yes, I have.
         18     Q.  Before testifying here today, did you have a chance to
         19     review Plaintiffs' -- a group exhibit marked Plaintiffs'
         20     Exhibit 55?
         21     A.  Yes, I did.
         22     Q.  Do you have that with you now?
         23     A.  It's on your table in the envelope.
         24              MR. FLAXMAN:  And I have a copy for the Court.
         25         (Document tendered.)
                                                            616
                              Byrd - direct
1     BY MR. FLAXMAN:
2     Q.  All right.  Now, did you also have a chance to review the
3     entire -- the written general job knowledge test for the 1993
4     sergeant's promotional test on a Sunday afternoon or Saturday
5     afternoon?
6     A.  Saturday.  Yes.
7     Q.  And where did that take place?
8     A.  At the guardian's office.
9     Q.  Do you remember where that is?
         10     A.  400 something east on 75th Street.
         11     Q.  Were there some other sergeants there?
         12     A.  Yes.
         13     Q.  And I was there?
         14     A.  Yes.
         15     Q.  And did we go over each question?
         16     A.  Yes, we did.
         17     Q.  Now, the first page --
         18              THE COURT:  Can I just make it clear Plaintiffs'
         19     Exhibit 54 and 55 both deal with the same portion of the
         20     test.  It's just different questions.
         21              MR. FLAXMAN:  That's correct.
         22              THE COURT:  Okay.
         23              MR. FLAXMAN:  And I think we will be stipulating
         24     that these are the substance of the questions.  There might
         25     be some periods or typographical errors in the questions.
                                                            617
                              Byrd - direct
1     BY MR. FLAXMAN:
2     Q.  Let me ask you to look at the first page of Exhibit 55.
3              Is the subject matter of this question something
4     that is important for a sergeant to know the first day on the
5     job?
6     A.  No.
7     Q.  And could you tell us why that is?
8     A.  Well, a field sergeant normally carries an ordinance
9     complaint book but normally he carries it for the use of the
         10     officers in the field whenever they have a need for one.
         11              Secondly, a sergeant would not sign an ordinance
         12     complaint being the complainant because the department does
         13     not look favorably on sergeants -- supervisors being
         14     complainants going to court.
         15     Q.  How often -- well, how long have you been a sergeant?
         16     A.  Five and a half years.
         17     Q.  Have you ever -- how many times, if any, have you issued
         18     an ordinance complaint form for a petty offense?
         19     A.  I have never.
         20     Q.  And do you work in the field?
         21     A.  I have spent the majority of my time in the field, yes.
         22     Q.  And has that been in the high crime areas of the area?
         23     A.  I worked in the 9th District and the 21st District.
         24     Q.  And where is the 9th District?
         25     A.  The 9th District is located on 35th and Lowe, but it
                                                            618
                              Byrd - direct
1     encompasses -- it borders the Englewood District.  It runs
2     from 55th on the south to about -- oh, to the Chicago River
3     on the north, west to Kedzie -- Cicero and east to the Dan
4     Ryan Expressway.
5     Q.  Is that what's known as a busy district?
6     A.  Yes.
7     Q.  Is the 21st District where you have also worked also a
8     busy district?
9     A.  Not as busy as the 9th District.
         10     Q.  Let me ask you to turn the page to where it says question
         11     5.
         12              Is the information that's referred to in question 5
         13     something that's important for a field sergeant to know the
         14     first day on the job?
         15     A.  No.
         16     Q.  And why is that?
         17     A.  Because this officer would -- coming from the academy
         18     would already have knowledge of what weapons he can and
         19     cannot carry.  That's one of the requirements that they have
         20     to know before getting out of the academy.
         21     Q.  Have you ever been asked by a police officer for
         22     clarification of what weapons the officer is permitted to
         23     routinely carry while on duty?
         24     A.  No.
         25     Q.  Now, the next page is question 7.  Is knowing the correct
                                                            619
                              Byrd - direct
1     answer to question 7 important for a field sergeant to know
2     the first day on the job?
3     A.  No.
4     Q.  Now, what's the consequence of getting the wrong
5     answer -- if somebody's in the field and is confronted with
6     the situation referred to in question 7, what's the
7     consequence of making the wrong notification?
8     A.  There's no consequence of making the wrong notification
9     because if you call the wrong unit, they will direct you to
         10     call the correct unit or another unit.
         11     Q.  The next page should be question 9.  Is question 9
         12     something that relates to the actual activity of a field
         13     sergeant?
         14     A.  No.  This is a lieutenant's duty.
         15     Q.  And the next page would be question 10.  Is the answer to
         16     question 10 something that's important for a field sergeant
         17     to know the first day on the job?
         18     A.  No.
         19     Q.  Is the answer to question 10 something that's important
         20     for an evidence technician to know?
         21     A.  No.  This would be for the beat officer.  A sergeant
         22     probably wouldn't even be called in on this.
         23     Q.  Now, the next page would be question 22.  Is knowing the
         24     correct answer to question 22 important for a field sergeant
         25     to know the first day on the job?
                                                            620
                              Byrd - direct
1     A.  No.
2     Q.  And why is that?
3     A.  Well, unless he's really a brand new sergeant he's not
4     going to have any scheduled court appearances.  And secondly,
5     there's orders that's kept at the watch commander's office.
6     When you run across something and you don't regularly know it
7     off the top of your head, you go get the book and you look it
8     up.
9     Q.  Is this question 22 something that's important for the
         10     sergeant to know in making split second decisions?
         11     A.  No, because this is something that rarely would happen.
         12     Q.  Now, police sergeants do on occasion have to make split
         13     second decisions that involve matters of life and death?
         14     A.  Yes, they do.
         15     Q.  And question 22 isn't anything at all like that?
         16     A.  No.
         17     Q.  The next page should be question 25.  Is question -- does
         18     question 25 relate to the actual activities of a sergeant's
         19     job?
         20     A.  Not so much as the field sergeant.  Because when we talk
         21     about the department members bill of rights and
         22     interrogation, that's usually a complaint against a
         23     department member that's handled by IAD, or because when we
         24     start talking about interrogation, we're all -- 9 out of 10
         25     times it's a criminal charge.  So a field sergeant would not
                                                            621
                              Byrd - direct
1     be involved in this at all.
2     Q.  Okay.  Now, you said --
3              MR. KERTEZ:  Your Honor, if I may at this point, I'd
4     just like to remind the witness that she avoid revealing the
5     question as it is asked in the examination.  And I believe
6     that is what we have been trying to do here during this
7     process.  And I hope that we will be able to continue doing
8     that and not revealing questions that were on the sergeant's
9     examinations.
         10              MR. FLAXMAN:  I think we have been doing very well
         11     with not revealing the questions.
         12              MR. KERTEZ:  Your Honor, I think that last one was
         13     rather revealing.
         14              THE COURT:  Well, the statement is correct that we
         15     should try to answer the question in general terms rather
         16     than the specific language so we don't compromise the
         17     question.  And that's something we should carry on throughout
         18     this hearing.
         19              So with that, I don't find that there is any need to
         20     strike or take any action with respect to the witness' answer
         21     with respect to this, and you may continue.
         22     BY MR. FLAXMAN:
         23     Q.  Does a field sergeant undertake the investigation of a
         24     complaint against a police officer?
         25     A.  On some occasions.
                                                            622
                              Byrd - direct
1     Q.  When that investigation involves formal interrogation, is
2     the field sergeant doing that?
3     A.  No.
4     Q.  Who does that investigation of a police officer that
5     involves formal interrogation?
6     A.  Personnel assigned to IAD.
7     Q.  And IAD means Internal --
8     A.  Or OPS.
9     Q.  IAD means Internal Affairs Division?
         10     A.  Yes.
         11     Q.  And OPS means?
         12     A.  Office of Professional Standards.
         13     Q.  So is question 25 something that's important for a field
         14     sergeant to know the first day on the job?
         15     A.  No.
         16     Q.  The next page is question 26.  Is question 26 something
         17     that's important for a field sergeant to know the first day
         18     on the job?
         19     A.  No.
         20     Q.  If the patrol officer who encountered the situation
         21     referred to in question 26 did choice A rather than choice C,
         22     would that be wrong?
         23     A.  No, it would not be wrong.
         24     Q.  And why is that?
         25     A.  Well, the reason why because he would -- the immediate
                                                            623
                              Byrd - direct
1     supervisor is notified as to the incident that the officer is
2     investigating and to ask guidance from the supervisor.
3     Q.  The next page question 47 -- is knowing the correct
4     answer to question 47 something that's important for a field
5     sergeant to know the first day on the job?
6     A.  No.
7     Q.  Why is that?
8     A.  Because normally when a situation like this occurs the
9     dispatcher will more or less give the information to the --
         10     what he'll be needing.
         11     Q.  The next page would be question 48.  Does question 48
         12     relate to the actual activity of a sergeant?
         13     A.  No.
         14     Q.  And why is that?
         15     A.  Field sergeants don't normally do license checks, and
         16     you --
         17     Q.  So -- go ahead.
         18     A.  You don't run across too many suspect --
         19     Q.  Classifications.
         20     A.  Uh-huh.
         21     Q.  Have you ever run across a suspect classification in your
         22     work as a Chicago police sergeant?
         23     A.  Not in 19 years I have not.
         24     Q.  As a sergeant and a police officer?
         25     A.  Right.
                                                            624
                              Byrd - direct
1     Q.  The next page is question 50.  Is it important for a
2     field sergeant to know the answer to question 50 the first
3     day on the job?
4     A.  No.
5     Q.  What, if any, are the consequences of a field sergeant
6     confronted with this situation choosing choice D rather than
7     choice A in real life?
8     A.  It's really no big consequence because D would direct him
9     to A.
         10     Q.  So is this one of those things that isn't a split second
         11     decision involving life or death?
         12     A.  Right.
         13     Q.  The next page should be 55.  Is knowing the correct
         14     answer to question 55 something that's important for a field
         15     sergeant to know the first day on the job?
         16     A.  No.
         17     Q.  Why is that?
         18     A.  Once again this is another one of the functions that a
         19     field sergeant would rarely, if ever, do.  And the answer
         20     here D that's -- that is 99 and 9/10ths of the time asked by
         21     the dispatcher.
         22     Q.  So does the dispatcher inquire about whether -- well,
         23     what does it mean to float a vehicle?
         24     A.  That means it has no wheels.  No tires.  I should say
         25     tires.
                                                            625
                              Byrd - direct
1     Q.  And if the car has tires, can it be towed in a different
2     way than if it doesn't have tires?
3     A.  Yes.
4     Q.  And is this something that the dispatcher asks the
5     officer who's making the call about?
6     A.  Yes.
7     Q.  The next page would be question 66.  Does question 66
8     relate to the actual activities of a sergeant?
9     A.  No.
         10     Q.  Who seeks approval to charge citizens with the offenses
         11     that are listed in 66?
         12     A.  Well, misdemeanors the arresting officers.  Felonies,
         13     charges of approval is sought from the State's Attorney
         14     through the detective.
         15     Q.  The next page should be question 73.  Is knowing the
         16     correct answer to question 73 important for a field sergeant
         17     to know the first day on the job?
         18     A.  No.
         19     Q.  And why is that?
         20     A.  Because once again this is one of those situations where
         21     there is instructions within the station.
         22     Q.  Now, when a vehicle has been impounded is there an
         23     impoundment hearing?
         24     A.  Yes.
         25     Q.  Does the officer who seized the vehicle get notified of
                                                            626
                              Byrd - direct
1     the time, date, and place of the impoundment hearing?
2     A.  Yes.
3     Q.  And how does that notification work?
4     A.  That notification is sent to the district station and it
5     in turn is put into a court notification book, and at roll
6     call all court appearances is given to the officers by the
7     watch commanders.
8     Q.  The next page should be question 77.  Does question 77
9     relate to the actual activity of a field sergeant?
         10     A.  No.
         11     Q.  Who --
         12     A.  And as a desk sergeant, I would not allow a field
         13     sergeant to come into my station and to authorize or give
         14     authorization to people within the station, because the
         15     station secure -- it rests upon the watch commander and the
         16     desk sergeant.
         17     Q.  So question 77 isn't information for a field sergeant --
         18     A.  No.
         19     Q.  -- to know the first day?
         20     A.  Not for a field sergeant.
         21     Q.  Let me finish my question.
         22     A.  Okay.
         23     Q.  Thank you.
         24              The next page would be question 79.  Does question
         25     79 relate to -- well, the first sentence of question 79
                                                            627
                              Byrd - direct
1     refers to a particular type of incident.
2     A.  Uh-huh.
3     Q.  You have to say yes or no.
4     A.  Oh.  Yes.
5     Q.  And does it relates to a particular type of report for
6     that particular type of incident?
7     A.  Yes.
8     Q.  Okay.  Is that type of report, a case report, the actual
9     type of report that would be reviewed or could be reviewed by
         10     a field sergeant in this situation?
         11     A.  Yes.
         12     Q.  And is knowing the correct answer to this question
         13     important for a field sergeant to know the first day on the
         14     job?
         15     A.  No.
         16     Q.  Why is that?
         17     A.  Because very seldom -- this is something that very seldom
         18     happens.  In certain districts it may happen, but this is --
         19     once again this is something that if you don't know the
         20     answer off the top of your head you can go to documentation
         21     and look it up.
         22     Q.  In your 19 years as a police officer have you ever come
         23     across the situation described in the first sentence?
         24     A.  Yes, I have.
         25     Q.  And did you fill out a case report?
                                                            628
                              Byrd - direct
1     A.  No, I did not.
2     Q.  Did you fill out any kind of report?
3     A.  No, I did not.
4     Q.  And is that consistent with the rules, regulations, and
5     procedures of the Chicago Police Department at the time?
6     A.  Yes.
7     Q.  Now, the next page should be question 83.  Does question
8     83 relate to the actual activity of a field sergeant?
9     A.  No.
         10     Q.  Who's responsible, if anyone, for question 83?
         11     A.  The officer.
         12     Q.  Is there something known as a court key card?
         13     A.  Yes.
         14     Q.  What's a court key card?
         15     A.  It has the officer's court key, which runs through the
         16     alphabet and the date -- the month and the date for his
         17     misdemeanor court and traffic court.
         18     Q.  And is the court key card the document that provides the
         19     answer to question 83?
         20     A.  Yes.
         21     Q.  Does each police officer have a court key card?
         22     A.  Well, I would say if they didn't they should, but the
         23     majority, yes.
         24     Q.  The next question would be 84.  Is knowing the correct
         25     answer to question 84 important for a field sergeant to know
                                                            629
                              Byrd - direct
1     the first day on the job?
2     A.  No.
3     Q.  Why is that?
4     A.  Well, let's say if they did -- say, for instance, if they
5     did D, they would be told -- they would be informed by the
6     lockup keeper that that wasn't D or E.  So it's one of those
7     where if you did it wrong there would be someone to guide --
8     put you back on the right path.
9     Q.  The next page is question 86.  Is question 86 related to
         10     the actual activity of a field sergeant's job?
         11     A.  No.
         12     Q.  Whose job is it to deal with question 86?
         13     A.  Judge in juvenile court.
         14     Q.  Which police officer, if any, would be involved?
         15     A.  Youth officer.
         16     Q.  Excuse me?
         17     A.  Youth officer.
         18     Q.  And are youth officers field sergeants?
         19     A.  No.
         20     Q.  Youth officer are the D2 rank that we've heard about?
         21     A.  Yes.
         22     Q.  Now, the next page is question 91.  Does question 91
         23     relate to the actual activity of a field sergeant?
         24     A.  No.
         25     Q.  And why is that?
                                                            630
                              Byrd - direct
1     A.  This would be the officer's response.  Because if the
2     fielding sergeant responded, the field sergeant would in turn
3     turn this over to a patrol officer.
4     Q.  So is -- well, is the scenario described in question 91
5     something that you have ever seen in your 19 years?
6     A.  No.
7     Q.  Is there anything unusual about this scenario?
8     A.  Yes.
9     Q.  Could you without revealing the contents of the question
         10     explain to us what's unusual?
         11     A.  Oh, how can I put it without revealing?  An unrelated
         12     party getting involved to the point of taking court action or
         13     legal action.
         14     Q.  And is that something that you have ever -- by unrelated
         15     you mean someone who's not a brother or sister or cousin?
         16     A.  Right.
         17     Q.  Like a neighbor?
         18     A.  Right.
         19     Q.  Is that something that you have ever come across in your
         20     work?
         21     A.  No.
         22     Q.  The next page would be question 92.  Does question 92
         23     relate to the actual activity of a field sergeant?
         24     A.  No.
         25     Q.  Who seeks approval to charge people with felonies?
                                                            631
                              Byrd - direct
1     A.  The detective through the State's Attorney.
2     Q.  And does the field sergeant supervise the detectives?
3     A.  No.
4     Q.  Who supervises the detectives?
5     A.  The sergeants who work at CID.
6     Q.  And CID is?
7     A.  Criminal Investigation Division.
8     Q.  Question 94, do field sergeants or Chicago police
9     officers arrest people for robbing houses?
         10     A.  No.
         11     Q.  Is question 94 also one of the things that a detective
         12     does?
         13     A.  Yes.
         14     Q.  The next page would be question 96.  Is this also a
         15     detective's job?
         16              MR. KERTEZ:  Objection, Your Honor.  Counsel has
         17     been leading the witness on several occasions now, and this
         18     is now another instance where he has been leading her.
         19              THE COURT:  All right.  I will sustain the objection
         20     to the form of the last question.  I appreciate the
         21     difficulty under the strictures that we have here, but I do
         22     think the last question was leading.
         23              MR. FLAXMAN:  It was, and I thought I would speed it
         24     up.
         25     BY MR. FLAXMAN:
                                                            632
                              Byrd - direct
1     Q.  Does 96 relates to the actual activity of a field
2     sergeant?
3     A.  No.
4     Q.  Whose activities are described or what type of police
5     officer's activities, if any, would be involved in seeking
6     approval to charge a citizen with one of the offenses listed
7     here?
8     A.  That would be the detective to the State's Attorney --
9     Q.  Does question No. 98 relate to the actual activity of a
         10     field sergeant's job?
         11     A.  No.
         12     Q.  Is there a particular group in the Chicago Police
         13     Department that would be --
         14     A.  Yes.  With a fatality -- let me get it right now.  I
         15     can't think.  They're in traffic.  The group is in traffic.
         16     Major accidents.
         17     Q.  So would there be -- tell us what majors accidents is.
         18     A.  Major accident is a unit whenever there is a fatality
         19     from a traffic accident in the city they come out and do the
         20     investigation.
         21     Q.  So is the scenario referred to in question 98 important
         22     for a field sergeant to know the correct answer to the first
         23     day on the job?
         24     A.  No.
         25     Q.  The next page of the --
                                                            633
                              Byrd - direct
1              THE COURT:  There's one thing that I had mentioned
2     before, and I want to be sure that we are clear on this.  Is
3     she testifying as of a certain date in 1993 as to these
4     things?  Because I think we have to be sure that the
5     testimony's relevant to the preparation of the questions.
6              MR. FLAXMAN:  Well, Your Honor, I thought Your
7     Honor's ruling was that was something that could be examined
8     on cross-examination.  But I will be glad to --
9              THE COURT:  All right.  I don't require that you do
         10     that.  It's just that it seems that -- I thought maybe I
         11     missed some initial testimony as to the answer as of a
         12     certain time period or the like.
         13              MR. KERTEZ:  Your Honor, if I may.  We would
         14     certainly like some foundation laid, and we believe some
         15     foundation should be laid for these questions.  And so far
         16     there haven't been any type of foundation laid so that we
         17     know what time period we're talking about when these -- when
         18     she's testifying as to.  And that's important.
         19              THE COURT:  Okay.  I will leave it up to both
         20     counsel.  One or the other it seems to me ought to make that
         21     clear.
         22     BY MR. FLAXMAN:
         23     Q.  Well, let's go back to question one.
         24              THE COURT:  Well, do you have to go through each
         25     one?
                                                            634
                              Byrd - direct
1              MR. FLAXMAN:  If they are insisting that I --
2              THE COURT:  Why don't you try by group or summary
3     question.
4              MR. FLAXMAN:  Okay.
5              THE COURT:  And then if that doesn't work, then I
6     guess you will have to try something else.
7     BY MR. FLAXMAN:
8     Q.  For how long have you been a sergeant?
9     A.  Five and a half years.
         10     Q.  In the five and a half years have there been some changes
         11     in the general orders of the Chicago Police Department?
         12     A.  There have been some changes.
         13     Q.  Have there been some changes in the statutes of the State
         14     of Illinois?
         15     A.  Yes.
         16     Q.  And have any of those changes in the general orders or
         17     the statutes made any of the scenarios that were referred to
         18     that we have been talking about here today in Exhibit 55 not
         19     important to the job for a sergeant to know the first day on
         20     the job that would have been important back in 1993?
         21     A.  No.
         22     Q.  Okay.  So if I asked you each of these questions again
         23     and asked you would this have been important for a sergeant
         24     to know back in 1993, would your answer be any different?
         25     A.  No.
                                                            635
                              Byrd - direct
1     Q.  Thank you.
2              Let's look at -- I think the page in front of you
3     was question 98 where we talked about major accidents.
4              THE COURT:  Can we make it clear, though, that all
5     her answers are as of 1993?
6              MR. FLAXMAN:  Well, I'm going to --
7              THE COURT:  Okay.
8     BY MR. FLAXMAN:
9     Q.  And all the answers you have given about these questions
         10     not being important or not being crucial would be true if I
         11     had added to my question as of January 1, 1993?
         12     A.  Yes.
         13     Q.  And as of December -- throughout 1993 would these things
         14     have not been important for a sergeant to know?
         15     A.  That's correct.
         16              THE COURT:  And this relates to all her future
         17     answers as well, right?
         18              MR. FLAXMAN:  Right.
         19              THE COURT:  Unless indicated otherwise.
         20     BY MR. FLAXMAN:
         21     Q.  And question 98 about major accidents, was major
         22     accidents the group that would seek approval in charging a
         23     citizen in a motor vehicle accident involving the death of a
         24     pedestrian in 1993?
         25     A.  Yes.
                                                            636
                              Byrd - direct
1     Q.  The next page would be 99.  In 1993 was it important for
2     a field sergeant -- would it have been important for a field
3     sergeant to know the correct answer to this question the
4     first day on the job?
5     A.  No.
6     Q.  Why is that?
7     A.  Because if he wasn't sure, he could call over to the
8     detective division and explain to them what he had and get
9     the correct answer.
         10     Q.  Now, let's turn to -- the next page would be question
         11     106.  In 1993 did this seeking approval to charge a citizen
         12     with an offense involving death relate to the actual activity
         13     of the field sergeant?
         14     A.  No.  That activity belongs to the detective.
         15     Q.  And next question is question 107.  In 1993 did knowing
         16     the elements of the charge of kidnapping relate to the actual
         17     activity of the job of a field sergeant?
         18     A.  No.
         19     Q.  And why is that?
         20     A.  Okay.  A field sergeant would turn this over to a
         21     patrolman, who in turn would get the criminal code book, look
         22     up what -- with the elements that was told to him, would look
         23     at the book to see if it corresponded.
         24     Q.  Would the detective --
         25     A.  And then he would call the -- then he would call the CID
                                                            637
                              Byrd - direct
1     unit that would handle this type of incident.
2     Q.  And CID is?
3     A.  Criminal Investigation.
4     Q.  The next page should be question 108.  In 1993 was it
5     important for a field sergent to know the correct answer to
6     this question the first day on the job?
7     A.  No.
8     Q.  And why is that?
9     A.  Because the officer who made the arrest probably would
         10     call -- would do this himself, calling the detective
         11     division.
         12     Q.  Now, the next page should be question 111.  Is knowing
         13     the correct answer to question 111 something that a field
         14     sergeant should have known the first day on the job in 1993?
         15     A.  No.
         16     Q.  Why is that?
         17     A.  Once again this is one of the things -- first of all,
         18     with the answer, the answer they would just look it up.  The
         19     officer -- the arresting officer.
         20     Q.  The next page should be question 117.  Does question 117
         21     or would question 117 relate to the actual activity of a
         22     field sergeant in 1993?
         23     A.  Repeat that.
         24     Q.  Would knowing the correct answer to question 117 relate
         25     to the actual activity of a field sergeant in 1993?
                                                            638
                              Byrd - direct
1     A.  No.
2     Q.  Is there something that a detective --
3     A.  A detective would do this.  A field sergeant may not even
4     know --
5              MR. KERTEZ:  Objection.  Your Honor, again he's
6     leading the witness.
7              THE COURT:  All right.  I will ask counsel to
8     refrain from leading.  You can direct to the general subject
9     matter, but you can't lead suggesting the answer, so you know
         10     the rules.  You may proceed.
         11     BY MR. FLAXMAN:
         12     Q.  Could you tell us in question 117 who would be --
         13     A.  We talked about a felony.  So that would be a detective.
         14     Q.  And a detective is different than a field sergeant --
         15     A.  Yes.
         16     Q.  Is a detective different than a field sergeant?
         17     A.  Yes.  A lot different.
         18     Q.  Question 120.  Is knowing the correct answer -- strike
         19     that.
         20              Does question 120 relate to the actual activity of a
         21     field sergeant's job in 1993?
         22     A.  No.
         23     Q.  And why is that?
         24     A.  Because the field sergeant does not have anything to do
         25     with seeking approval of charges.
                                                            639
                              Byrd - direct
1     Q.  Now, question 122.  Is knowing the correct answer to
2     question 122 something that would have been important for a
3     field sergeant on the first day on the job at any time in
4     1993?
5     A.  No.
6     Q.  Why is that?
7     A.  Once again a sergeant is not responsible for seeking
8     approval of charges.
9     Q.  The next page is question 123.  Is knowing the correct
         10     answer to question 123 something that would have been
         11     important for a field sergeant to know the first day on the
         12     job in 1993?
         13     A.  No.
         14     Q.  Why is that?
         15     A.  Because once again it's a felony.  You have to go through
         16     the State's Attorney and you have to have a detective.
         17     Q.  Well, what would you do or what in 1993 would the
         18     arresting officer have done, if anything, to learn whether
         19     this behavior was a felony?
         20     A.  Would have called prostitution.
         21     Q.  And what is prostitution?
         22     A.  That's a unit.
         23     Q.  Okay.  Now, the next page should be question 124.  Is
         24     knowing the correct answer to question 124 something that a
         25     field sergeant should have known the first day on the job at
                                                            640
                              Byrd - direct
1     any time in 1993?
2     A.  No.
3     Q.  Why is that?
4     A.  Well, something like this you'd have a lot of -- you
5     would have someone from CID there.  A sergeant wouldn't be
6     involved.
7     Q.  The next page is question 125.  Does question 125 relate
8     to the actual activity of a field sergeant's job at any time
9     in 1993?
         10     A.  No.
         11     Q.  And does it relate to the job of any particular type of
         12     police officer?
         13     A.  A youth officer.
         14     Q.  Let me finish my question because it's getting real hard.
         15     A.  Oh, I'm sorry.
         16     Q.  Does it relate to -- what officer does it relate to?
         17     A.  A youth officer would be involved.  Probably violent
         18     crimes would be involved.
         19     Q.  Now, what is violent crimes?
         20     A.  That's a detective from CID but the violent crimes
         21     section.
         22     Q.  Let me ask you to look at the next page, question 126.
         23              Is knowing the correct answer to question 126
         24     something that a field sergeant should have known the
         25     first -- or something that a field sergeant would know the
                                                            641
                              Byrd - direct
1     first day on the job in 1993?
2     A.  No.
3     Q.  And why is that?
4     A.  Well, two reasons.  One reason, once again, you know, he
5     wouldn't seek charges unless this was a misdemeanor.  And
6     secondly, before being promoted to sergeant he would have
7     known that this was some type of wrongdoing and he would call
8     the detective division.
9     Q.  Now, could a police officer in 1993 or a sergeant call
         10     the detective division on an offense that turned out not to
         11     be a felony?
         12     A.  Yes.
         13     Q.  And what would happen then?
         14     A.  They'd just tell them you don't have a felony.  Go with
         15     the misdemeanor.
         16     Q.  And has that ever happened in your work as a sergeant?
         17     A.  Me called the detective?
         18     Q.  Or anybody -- yes, you called the detective.
         19     A.  No.
         20     Q.  The next page would be question 130.  Now, does
         21     wrongdoing that involves a 15-year-old victim relate to the
         22     actual activity of a field sergeant's job as it existed at
         23     any time in 1993?
         24     A.  No.
         25     Q.  And is there a particular specialist in the police
                                                            642
                              Byrd - direct
1     department who's involved in --
2     A.  This type of incident would be handled by the youth
3     division and a youth officer.
4     Q.  Does knowing what offense for which approval should be
5     sought relate in 1993 to the actual activity of a field
6     sergeant for this scenario?
7     A.  No.  This would all be handled by a youth officer.
8     Q.  The next page is 137.  Is question 137 something that's
9     important for a field sergeant to know the first day on the
         10     job as of any time in 1993?
         11     A.  No.
         12     Q.  Why is that?
         13     A.  If a sergeant is assigned to an incident like this, the
         14     sergeant is there to oversee the personnel who is actually --
         15     who's doing the actual work.
         16     Q.  Well, does this relate to -- question 137 relate to the
         17     actual activity of a sergeant as it existed in 1993?
         18     A.  No.
         19     Q.  In your work as a sergeant have you ever been involved in
         20     question 137 -- the scenario described there in question 137?
         21     A.  Yes.
         22     Q.  How many times?
         23     A.  Three.
         24     Q.  And the next page should be question 139.  In 1993 was it
         25     important for a police sergeant to know the answer to this
                                                            643
                              Byrd - direct
1     question the first day on the job?
2     A.  No.
3     Q.  Why is that?
4     A.  Very, very rarely has there ever been -- is there
5     citations issued for this incident.
6     Q.  The next page would be question 147.
7     A.  I don't have that.
8              MR. FLAXMAN:  Do you have 147 on your exhibit?
9              MS. PAPUSHKEWYCH:  No.
         10              THE COURT:  I do.  I have 147.
         11              MS. PAPUSHKEWYCH:  We have 145.
         12              MR. FLAXMAN:  I will give her my copy.
         13              MS. PAPUSHKEWYCH:  Can we just clarify?  Our exhibit
         14     has 145 and 146.  Are those not part of the exhibit package
         15     now?
         16              THE COURT:  All I have is 147, 148, 149, and 150.
         17              MS. PAPUSHKEWYCH:  So 145 and 146 are no longer a
         18     part of your Exhibit 55 apparently?
         19              MR. FLAXMAN:  Yes.
         20              MS. PAPUSHKEWYCH:  Okay.
         21              MR. FLAXMAN:  We're on 147.
         22              MS. PAPUSHKEWYCH:  And what are the other ones since
         23     we don't have the rest of them?
         24              THE COURT:  48, 49, and 50.
         25              MS. PAPUSHKEWYCH:  Okay.  Thank you.
                                                            644
                              Byrd - direct
1     BY MR. FLAXMAN:
2     Q.  Now, does knowing the correct answer to question 147
3     relate to the actual activity of a police sergeant in 1993?
4     A.  No.
5     Q.  And why is that?
6     A.  For one thing this was not into play in 1993.  It was
7     still on the drawing board and propaganda in 1993.
8     Q.  Well, is knowing that propaganda -- would knowing the
9     correct answer to this question be important for a field
         10     sergeant to know the first day on the job in 1993?
         11     A.  No.
         12     Q.  Let me ask you to look at the next page, question 148.
         13              Does 148 relate to the actual activity of a field
         14     sergeant?
         15     A.  No.
         16     Q.  Does knowing the correct answer to question 148 something
         17     that's important for a field sergeant to know the first day
         18     on the job at any time in 1993?
         19     A.  No.
         20     Q.  Does question 148 have anything to do with being a police
         21     sergeant?
         22     A.  No.
         23     Q.  How about question 149?  Does knowing the correct answer
         24     to question 149 -- well, strike that.
         25              Does question 149 relate to the actual activity of a
                                                            645
                              Byrd - direct
1     police sergeant as it existed in 1993?
2     A.  No.
3     Q.  Is knowing the correct answer to question 149 something
4     that a Chicago police sergeant should have known the first
5     day on the job in 1993?
6     A.  No.
7     Q.  Okay.  And the last one is question 150.  In 1993 were
8     Chicago police sergeants involved in dispatching uniform
9     patrol units to the scene of a 911 call?
         10     A.  No.
         11     Q.  Does question 150 relate to the actual activity of a
         12     Chicago police sergeant in 1993?
         13     A.  No, not a field sergeant.
         14     Q.  Is knowing the correct answer to question 150 something
         15     that's important for a field sergeant to know the first day
         16     on the job at any time?
         17     A.  No.
         18     Q.  And does question 150 relate to the work that you do as a
         19     sergeant?
         20     A.  No.
         21              MR. FLAXMAN:  I have nothing further.
         22              THE COURT:  All right.  Let's take a five-minute
         23     recess and then --
         24              MS. PAPUSHKEWYCH:  Can we make it 10?
         25              THE COURT:  All right.  10-minute recess.
                                                            646
                              Byrd - cross
1         (Short break taken.)
2              THE COURT:  All right.  If we are prepared,
3     cross-examination.
4              MR. KERTEZ:  Yes, Judge.
5              THE COURT:  You may proceed.
6              MR. KERTEZ:  Thank you, Your Honor.
7                           CROSS-EXAMINATION
8     BY MR. KERTEZ:
9     Q.  So, Sergeant, it is your testimony that if a police
         10     officer who you supervised called you to the scene of an
         11     incident and asked you about what charge should be brought
         12     against an individual, you would tell that officer to look it
         13     up, call the detectives, or some other unit?
         14              MR. FLAXMAN:  I object to the form of the question.
         15              THE COURT:  Objection overruled.  She may answer.
         16              THE WITNESS:  Would you repeat that, please.
         17     BY MR. KERTEZ:
         18     Q.  Sure.  I certainly will.
         19              So it is your testimony, Sergeant Byrd, that if a
         20     police officer who you supervised called you to the scene of
         21     an incident and asked you about what charge should be brought
         22     against an individual, you would tell that officer to look it
         23     up, call the detectives, or some other unit?
         24     A.  If an officer --
         25              MR. KERTEZ:  Your Honor, this now is a narrative
                                                            647
                              Byrd - cross
1     answer.  This calls for a yes or no answer.
2              MR. FLAXMAN:  No, it doesn't, Judge.
3              MR. KERTEZ:  Yes, it does.
4              MR. FLAXMAN:  He's sticking words in her mouth.
5              MR. KERTEZ:  I am not.  I have asked her a question,
6     Your Honor, that --
7              THE COURT:  You have asked a question that --
8              MR. KERTEZ:  Yes or no.
9              THE COURT:  -- it seems to me could be answered with
         10     a yes or no.  If you can answer it with a yes or no, you
         11     should.  If you can't answer with a yes or no, you should say
         12     that you can't.
         13              THE WITNESS:  I cannot answer it with a yes or no.
         14              THE COURT:  Then you should rephrase the question.
         15              MR. KERTEZ:  Your Honor, I would ask the same
         16     question.
         17              MR. FLAXMAN:  I would give the same answer.
         18              THE COURT:  I have a secretary's that's not in again
         19     today, and now we're going to have this where we're going to
         20     have a standoff --
         21              MR. KERTEZ:  No.  Your Honor --
         22              THE COURT:  -- because you asked a question and she
         23     says she can't answer it with a yes or no and you refuse to
         24     modify the question?
         25              MR. KERTEZ:  No.  No.  Your Honor, should she want
                                                            648
                              Byrd - cross
1     to discuss that answer further or elaborate further, it seems
2     to me that's appropriate on redirect if she should choose to
3     do so.  My question I think is very clear.  She can answer
4     this question with a yes or no, I believe, as you pointed out
5     just a second ago.  It certainly calls for a yes or no
6     answer.
7              THE COURT:  I said she should answer with a yes or
8     no if she can.  If she can't answer, she should say that she
9     can't do it.  She said that she can't do it.  And I have
         10     asked you to rephrase the question.  Now, if you refuse to
         11     rephrase the question, I'm going to say then let's move on to
         12     something else.
         13              MR. KERTEZ:  Your Honor, I do not refuse to rephrase
         14     the question.  May I have a second, please?
         15              THE COURT:  Yes, you may.
         16         (Brief pause.)
         17     BY MR. KERTEZ:
         18     Q.  All right.  Sergeant Byrd --
         19     A.  Yes.
         20     Q.  -- it is your testimony that if a police officer who you
         21     supervised called you to the scene of an incident and asked
         22     you about whether a particular crime is a felony, you would
         23     instruct the officer to call the detectives?
         24     A.  It would all depend.
         25              MR. KERTEZ:  Your Honor, again my next question is a
                                                            649
                              Byrd - cross
1     yes or no question.  And I would ask you to instruct the
2     witness to answer it in that fashion.
3              THE COURT:  Well, again I will ask the witness now
4     that the question is not a compound question anymore whether
5     you can answer it with a yes or no.  If so, you should.
6              THE WITNESS:  No --
7              THE COURT:  Otherwise you will have to say again
8     that you can't answer it with a yes or no.  And you have the
9     right to ask the witness why the witness can't answer it with
         10     a yes or no.  I don't require it, but I mean there's various
         11     ways that this can be handled.  And I don't -- you know,
         12     we're up against time problems as it is.  So I hope that we
         13     can move ahead expeditiously.
         14              MR. KERTEZ:  I understand, Judge.
         15              THE COURT:  I'm not limiting you on anything.  It's
         16     just I think we need to keep moving.
         17              THE WITNESS:  I cannot answer that with a yes or no.
         18     BY MR. KERTEZ:
         19     Q.  Sergeant Byrd, as a sergeant you need to know the
         20     elements of a crime, don't you?
         21     A.  No.
         22              MR. KERTEZ:  I have no further questions of this
         23     witness at this time, Your Honor, pending, of course, the
         24     stipulation regarding the general orders that we discussed
         25     earlier this morning.
                                                            650
                             Byrd - redirect
1              THE COURT:  Whatever that is.  And I'm not sure what
2     that is, but okay.
3                         REDIRECT EXAMINATION
4     BY MR. FLAXMAN:
5     Q.  What would you do if you were called to a scene where an
6     arrest had been made and the arresting officer told you he
7     didn't know whether it was a felony or a misdemeanor?
8     A.  The very first thing I would do I would instruct him to
9     carry everything into the station.
         10     Q.  And by carry everything into the station --
         11     A.  That means the people involved, the witnesses, everybody
         12     would be instructed to go into the police station.
         13     Q.  And would the person who had been -- how would the person
         14     who had been arrested for this offense be taken into the
         15     police station?
         16     A.  He would be taken in in handcuffs.
         17     Q.  And what would happen at the police station with that
         18     person about whom the officer did not know whether the person
         19     should be charged with a misdemeanor or a felony?
         20     A.  Then that officer would be instructed to get the 720
         21     book.  We would look up the charge -- what he thought the
         22     charge was to be.  And if it was something that the
         23     detectives needed to be called on, then he would be
         24     instructed to call the detectives.
         25     Q.  Now, by the 720 book you mean the -- what do you mean?
                                                            651
                           Carpenter - direct
1     A.  Illinois --
2     Q.  Criminal Code?
3     A.  Criminal Code.
4     Q.  Now, how many years you been a sergeant?
5     A.  Five and a half years.
6     Q.  Have you ever been involved in arrest situations?
7     A.  Yes.
8     Q.  And in any of those arrest situations have you ever been
9     asked by a beat officer at the scene of an arrest whether the
         10     person should be charged with a felony or a misdemeanor?
         11     A.  No.
         12              MR. FLAXMAN:  Thank you.  Nothing further.
         13              THE COURT:  Any additional questions now?
         14              MR. KERTEZ:  Your Honor, we have nothing further of
         15     this witness at this time.
         16              THE COURT:  All right.  You are excused.  And let's
         17     call the next witness in.
         18         (Witness excused.)
         19              MR. FLAXMAN:  Our next witness is Sergeant Reginald
         20     Carpenter.  The witness is in the washroom.
         21              THE COURT:  Okay.  We'll wait.
         22         (Brief pause.)
         23          REGINALD CARPENTER, PLAINTIFFS' WITNESS, DULY SWORN
         24                          DIRECT EXAMINATION
         25     BY MR. FLAXMAN:
                                                            652
                           Carpenter - direct
1     Q.  Could you state your name for us again.
2     A.  Reginald Carpenter.
3     Q.  And when's the last time you worked as a Chicago police
4     officer -- Chicago police sergeant?
5     A.  I'm currently working as a police sergeant.  My last
6     working day on the street was Tuesday.
7     Q.  Tuesday of?
8     A.  Of this week.
9     Q.  Did you work last night?
         10     A.  No.  I did go into the station to perform some work in
         11     regard to this case.
         12     Q.  When you went into the station to perform some work, what
         13     station did you go to?
         14     A.  To the 4th District Station located at 225 East 103rd
         15     Street.
         16     Q.  And what work did you go there to do?
         17     A.  I went to get some information to bring to Court
         18     regarding matters pertinent to this case.
         19     Q.  Okay.  And how long did you stay at the police station?
         20     A.  I was there approximately from 3 o'clock in the morning
         21     till after 4 o'clock in the morning, and I spoke with the
         22     watch commander on duty and other persons present.
         23     Q.  Did you take any materials with you that pertain to this
         24     case when you went to the police station?
         25     A.  Yes -- did I take any materials to the station?
                                                            653
                           Carpenter - direct
1     Q.  Right.
2     A.  No, sir.
3     Q.  All right.  At some point have you had a chance to review
4     the in-basket component of the 1993 sergeant's test?
5              MR. KERTEZ:  Your Honor, at this point I would just
6     like to renew our motion regarding the in-basket simulation.
7     And our motion that -- of course, it's our position that
8     testimony regarding that in-basket and how it was designed
9     should not be elicited from this witness.
         10              MR. FLAXMAN:  I don't think he's competent to give
         11     that testimony.  We would not seek to offer it.
         12              THE COURT:  Okay.  I think we understand the
         13     parameters, and I will adhere to the previous ruling.  To the
         14     extent that you seek to deviate from that, I will sustain it
         15     to the extent that it's consistent with what we have ruled.
         16     And with that you may proceed.
         17     BY MR. FLAXMAN:
         18     Q.  When is the first time that you saw the in-basket that
         19     was used in the 1993 sergeant's test?
         20     A.  Yesterday outside this courtroom in the conference room.
         21     Q.  And did you get a chance to review yesterday all of those
         22     papers?
         23     A.  No, sir, I didn't.
         24     Q.  Did you ever get a chance to review all the papers that
         25     make up the in-basket?
                                                            654
                           Carpenter - direct
1     A.  Only when I administered -- self-administered the test
2     this morning.
3     Q.  Now, when you say you self-administered the test, can you
4     tell us what you did?
5     A.  After leaving the station I eventually returned home.  In
6     route I stopped at a restaurant and had breakfast and
7     finished about 5 o'clock this morning.  And I have children
8     to help get ready for school, and I wanted to be able to use
9     my own dining room table.  I had to wait till after 7:30 till
         10     they left.
         11              I have past experience with taking like
         12     correspondence courses.  So I composed a problem as to how to
         13     best to administer myself in what would be viewed as an
         14     honest manner.  So what I did was I contacted the on duty
         15     watch commander, who is my immediate supervisor, and I told
         16     him I was -- I used explicit language that I was taking -- I
         17     was assigned to take a test --
         18              MR. KERTEZ:  Objection, Your Honor.  I fail to see
         19     what the relevance of this line of testimony is at this point
         20     in time regarding the in-basket.
         21              THE COURT:  Well, I think he's going to state that
         22     he self-administered the test and he's going testify as to
         23     how well he did on the test, I suppose.
         24              MR. KERTEZ:  Yes.  Your Honor, what is the relevance
         25     of how well he would have done on that test?
                                                            655
                           Carpenter - direct
1              THE COURT:  I have no idea at this stage.
2              MR. KERTEZ:  I have no idea either.
3              THE COURT:  It may not have any relevance at all.  I
4     have no way of telling at this point.  But I will permit it
5     to come in subject to any motion to strike, and you may
6     proceed.
7     BY MR. FLAXMAN:
8     Q.  When you self-administered the test, what did you do to
9     make a record of what time you started taking the test?
         10     A.  I telephoned the on duty watch commander, who's currently
         11     working now at this time at the 4th District station.  His
         12     name is Lieutenant David Christovic, Star No. 242.
         13              After my family had left the house and I was
         14     completely alone after 7:30, I called him at 7:40 my time.  I
         15     told him in explicit language that I was assigned to take a
         16     test at home, and I was going to come to court this morning.
         17     I wanted him to give me the time that I was calling him to
         18     start taking the test or start five minutes later.
         19     Q.  Did you write that time down on a piece of paper?
         20     A.  Yes, sir, I did.
         21     Q.  Do you have that piece of paper with you?
         22     A.  Yes, sir.
         23              MR. FLAXMAN:  And I will mark that as Plaintiffs'
         24     Exhibit 66 and show it to defense counsel.
         25     BY MR. FLAXMAN:
                                                            656
                           Carpenter - direct
1     Q.  Now, Plaintiffs' Exhibit 66 this contains your
2     handwriting?
3     A.  Yes, sir.  My signature is signed at the bottom with my
4     rank and star number, and this is page 1 of 3.
5              MR. FLAXMAN:  Okay.  So let's call the next two
6     pages 66-2 and 66-3.  And let me mark those and show those to
7     defense counsel.
8              MS. PAPUSHKEWYCH:  I'm sorry.  What exhibit number
9     is that?
         10              MR. FLAXMAN:  66-2 and 66-3.
         11     BY MR. FLAXMAN:
         12     Q.  Now, what time did you start writing Plaintiffs' Exhibit
         13     66?
         14     A.  Sir, you said what time did I start writing?
         15     Q.  Right.
         16     A.  I still had to, you know, go find a pencil from, you
         17     know, off the refrigerator and get an eraser.  So say a
         18     minute or so after 7:40 I actually began reading the test
         19     without reviewing any of the accompanying material.
         20     Q.  When you say -- do you have the material that you
         21     reviewed when you reviewed the test?
         22     A.  Yes, sir.
         23     Q.  Could you hand that to me and I will mark it as
         24     Plaintiffs' Exhibit 67.
         25     A.  All this material.  Which includes the questions.
                                                            657
                           Carpenter - direct
1              MR. FLAXMAN:  Let me show this to defense counsel.
2     BY MR. FLAXMAN:
3     Q.  Let me show you what's been marked as Plaintiffs' Exhibit
4     67.
5              Are these the materials that you reviewed before
6     answering the questions that made up the in-basket for the
7     1993 sergeant's test?
8     A.  Actually this isn't the material, but actually to
9     handicap myself because I had seen this material yesterday I
         10     didn't attempt any further review before taking the test.  I
         11     just took the questions and then just thumbed through it as
         12     necessary to answer the questions as accurately as possible.
         13     Q.  And those questions that you tried to answer as
         14     accurately as possible, are those in the packet of questions
         15     that have been marked as Plaintiffs' Exhibit 68?
         16     A.  Yes, sir, they are.
         17     Q.  And were you -- before you took the self-administered
         18     in-basket this morning had you ever taken an in-basket
         19     before?
         20     A.  Only once before in the lieutenant's exam of 1994.
         21     Q.  And was this in-basket the same kind of in-basket as in
         22     the lieutenant's exam.
         23              MR. KERTEZ:  Objection, Your Honor.  Again this is a
         24     completely different exam he's talking about.  And he's
         25     asking this individual to make a determination as to
                                                            658
                           Carpenter - direct
1     similarities between two in-baskets that an industrial
2     psychologist developed.  He's not competent to make that kind
3     of determination.
4              THE COURT:  Well, I think the question isn't clear
5     as to what he's asking.  If it's the same general form, is
6     one thing.  Obviously the questions are going to be
7     different.  The subject matter's going to be different.  So
8     why don't you restate the question.
9              MR. FLAXMAN:  I will do that.
         10     BY MR. FLAXMAN:
         11     Q.  The in-basket on the lieutenant's test did that consist
         12     of 60 multiple choice questions?
         13     A.  Yes, sir, it did.
         14     Q.  And were there written materials to review on the
         15     lieutenant's test before answering those 60 multiple choice
         16     questions?
         17     A.  Yes, sir.
         18     Q.  Was the form of the in-basket on the lieutenant's test
         19     the same as the form of the in-basket on the sergeant's test?
         20     A.  It used material similar to the Police Department's
         21     actual material.  And that as a layman is the best that I can
         22     answer your question without having both to compare at this
         23     time.
         24     Q.  Well, when you self-administered the sergeant's
         25     promotion -- the sergeant in-basket test was that -- did it
                                                            659
                           Carpenter - direct
1     seem like -- how different did it seem, if any, from the
2     in-basket you took with the lieutenant's test?
3     A.  Not much different, sir.
4     Q.  Now, after you self-administered the test -- did you
5     write the answers on any particular piece of paper?
6     A.  Yes, sir, I used them on lined notebook paper.
7     Q.  Are those the papers that we have marked as Plaintiffs'
8     Exhibit 66, Plaintiffs' Group Exhibit 66?
9     A.  Yes, sir.
         10     Q.  And after you took the test and wrote down the answers
         11     did you have occasion to look at your answers, compare your
         12     answers with the answer sheet?
         13     A.  No, sir, I did not.  That is the not the proper way to
         14     self-administer a test.
         15     Q.  But at any time after you self-administered the test did
         16     you check to see how well you did?
         17     A.  No, sir, not alone until -- not alone.  I came to court
         18     today and presented the material to you and you graded the
         19     test in the conference room --
         20     Q.  Okay.
         21     A.  -- in my presence.
         22              THE COURT:  So you're going to be a witness.  We
         23     have to get a new attorney in the case?
         24              MS. PAPUSHKEWYCH:  Your Honor, I think we are going
         25     to ask to disqualify him.
                                                            660
                           Carpenter - direct
1              THE COURT:  That's just a light -- just a little
2     humor.  Do you have somebody else that can testify to what
3     was done?
4              MR. FLAXMAN:  Well, he will testify to what was
5     done.
6              THE COURT:  Okay.
7     BY MR. FLAXMAN:
8     Q.  When we graded the test, did we use what I will be
9     marking as Plaintiff's Exhibit 69 to determine which answers
         10     were correct?  And wait until you see the exhibit before
         11     answering.
         12     A.  Yes, sir, this looks like the answer key that you used in
         13     the room.
         14     Q.  Okay.  And as you look at Exhibit 69 you see there's one
         15     question where the answer key recites that all choices were
         16     marked correct?
         17     A.  Yes, sir.
         18     Q.  What question number is that?
         19     A.  Question No. 11.
         20     Q.  How much time when you self-administered the test did you
         21     try to do the whole test in?
         22     A.  My goal to do the test was to try to approach the time of
         23     one hour and 15 minutes.  Actually in the back of my mind I
         24     was giving myself a couple of hours, because I didn't have
         25     the same amount of time as the actual test applicants to
                                                            661
                           Carpenter - direct
1     review the material before coming to court this morning.
2     After leaving court yesterday, going to the station this
3     morning and then, you know, trying to come -- rush to come to
4     court.  I had to make another phone call to call the patrol
5     division to sign in to come in court, which I have to do on a
6     daily basis, and then get dressed and then get down here.
7     Q.  How many questions were you able to answer in an hour and
8     15 minutes?
9     A.  I marked a place on my answer sheet.  May I refer to it?
         10     Q.  Yes.
         11     A.  Okay.  From my starting time to the time I marked on the
         12     sheet of 8:55 a.m. I was able to answer 35 questions in the
         13     allotted time of an hour and 15 minutes.
         14     Q.  And after answering those 35 questions did you try to
         15     answer all of the questions?
         16     A.  Yes, sir.  I did go on to answer all of the questions, so
         17     I would be fully knowledgeable about the test.
         18     Q.  How long did it take you to answer all the questions?
         19     A.  I finished the test in its entirety -- may I refer to my
         20     sheet, the first sheet -- at 9:40 a.m. by my time.  Then I
         21     called the station, it was still 9:40, asked to speak to the
         22     watch commander, got disconnected, and dialed back right
         23     away.  And I asked him for my time, and he said 9:41, which
         24     in our time was 09:41 hours.
         25     Q.  What was the total time that it took you to answer those
                                                            662
                           Carpenter - direct
1     60 written short answer questions?
2     A.  The total time approximately was two hours.  I took a
3     five-minute break at 08:55 a.m. after I had answered question
4     No. 35.  I had to use the bathroom.  You know, wash my hands.
5     And then I waited until the clock struck 9 o'clock and I
6     started again.
7     Q.  Now, when we graded those questions, do you remember how
8     many you got right based on that scoring key that you have in
9     front of you?
         10     A.  Do I remember --
         11     Q.  The number that you got right.
         12     A.  The score that you gave me -- I missed three until we
         13     reviewed them.
         14     Q.  Now, when you were taking the test and you reached that
         15     question for which all the answers were graded as correct,
         16     question 11, was there anything about question 11 that made
         17     it take more or less time than the other question?
         18     A.  Yes, sir.
         19     Q.  What was there about it?
         20     A.  The question was not properly drafted, nor was there an
         21     insert in it to be able to answer the question.  There were
         22     no inserts.  It should have been worded to make a person
         23     taking the test -- to inform them that they would have to
         24     have an imaginary document or report for them to be able to
         25     answer the question.
                                                            663
                           Carpenter - direct
1     Q.  Did it slow you down?
2     A.  Yes, sir.  I lost at least 10 minutes.  I didn't look at
3     the clock because I went back and forth, back and forth
4     thumbing through the whole package, including the
5     instructions to find this document which I had presumed would
6     be in the packet, and it wasn't there.
7     Q.  Now, after we scored the test and we said -- we concluded
8     that there were three questions that you had gotten wrong,
9     did we look at those questions and answers?
         10     A.  Yes, sir, we did.
         11     Q.  And was question 60 one of those questions that you had
         12     been scored wrong?
         13     A.  Yes, sir, that was the last one.
         14     Q.  And did you go through the material to see what it was
         15     that you had gotten wrong on question 60?
         16     A.  Yes, sir.
         17     Q.  And could you --
         18              MR. FLAXMAN:  Probably we could reveal this question
         19     because it's not a general knowledge question.  It's a kind
         20     of an analytic question.
         21              MR. KERTEZ:  No.
         22              THE COURT:  Well, I don't know.
         23              MS. PAPUSHKEWYCH:  I haven't seen it.
         24              THE COURT:  Is it necessary that we have to go into
         25     the exact language?
                                                            664
                           Carpenter - direct
1              MR. KERTEZ:  Right.  Your Honor --
2              THE COURT:  I mean, can you describe it without
3     using the exact language?
4     BY MR. FLAXMAN:
5     Q.  Without describing the exact language of the question,
6     could you relate to us what question 60 asked about?
7     A.  Yes, sir, I think I can.  May I just refer to it and then
8     I'll compose something for you right quick.
9     Q.  Yes.
         10     A.  I reviewed the question.
         11     Q.  Without revealing the language of the question, what does
         12     question 60 ask you to do?
         13     A.  It asks that the recipients of the information be
         14     informed of specific information.
         15     Q.  Does it ask you to look at some kind of reports?
         16     A.  Yes, sir, it does.
         17     Q.  And does it ask you to determine whether there are some
         18     similarities in a particular beat?
         19     A.  Yes, sir.
         20     Q.  And the answer that was graded correct was choice D, is
         21     that right?
         22     A.  Yes, sir.
         23     Q.  And did you review the materials --
         24     A.  Yes, sir.
         25     Q.  -- after you learned that?  And is choice D the choice
                                                            665
                           Carpenter - direct
1     that's supported by the materials?
2     A.  Choice D is absolutely incorrect.
3     Q.  Okay.  Could you explain to us why choice D is incorrect?
4     A.  Yes, sir.
5              MR. FLAXMAN:  And, Judge, this is -- we don't have
6     more copies of this.  This is going to be absolutely
7     incomprehensible to you unless we relate this.
8              MS. PAPUSHKEWYCH:  Can I just see the item?
9              THE COURT:  Don't you have a Plaintiffs' Exhibit 58
         10     or 59 or something like that?
         11              MS. PAPUSHKEWYCH:  I don't have this exhibit, Your
         12     Honor, at this point.  If I could just look at the item.
         13         (Brief pause.)
         14              MS. PAPUSHKEWYCH:  That's fine.
         15              MR. FLAXMAN:  We can disclose.
         16              THE COURT:  All right.  We understand what that's
         17     fine means?
         18              MS. PAPUSHKEWYCH:  To the extent necessary that the
         19     sergeant needs to describe the particulars of the --
         20              THE COURT:  Question.
         21              MS. PAPUSHKEWYCH:  We will -- in this limited
         22     instance.
         23     BY MR. FLAXMAN:
         24     Q.  Could you read for us what question 60 is.
         25     A.  Am I allowed to do that?
                                                            666
                           Carpenter - direct
1              MS. PAPUSHKEWYCH:  Yes.
2              THE WITNESS:  Okay.  Question 60:  "According to the
3     criminal activity reports, in beat 2913, there is a pattern
4     of arson offenses which share a common element.  The officers
5     assigned to this beat should be informed that these
6     offenses:"  And then the answers are A, B, C, D, or E.
7     BY MR. FLAXMAN:
8     Q.  And could you read what choice D is.
9              THE WITNESS:  Am I allowed to do that?
         10              MS. PAPUSHKEWYCH:  Yes.
         11              THE COURT:  Okay.
         12              MS. PAPUSHKEWYCH:  Yes.
         13              THE WITNESS:  Choice D, occurred at the same time of
         14     day.
         15     BY MR. FLAXMAN:
         16     Q.  Now, to answer that question would you have to look at
         17     some of the material that came with the in-basket?
         18     A.  Yes.
         19     Q.  And what material is it that you would look at?
         20     A.  You would have to look on all of the criminal activity
         21     reports that are included in the test packet.
         22     Q.  Okay.  Now, could you thumb through what has been marked
         23     as Exhibit 67, and I think there are numbers on the bottom.
         24              THE COURT:  Is he going to testify to what he thinks
         25     is the correct answer?
                                                            667
                           Carpenter - direct
1              MR. FLAXMAN:  He's going to.
2              THE COURT:  Oh, okay.  I thought you were going to
3     another one.
4              MR. FLAXMAN:  Oh, no.  No.
5     BY MR. FLAXMAN:
6     Q.  Could you go through Exhibit 67 and find us the page
7     where the criminal activity report starts.
8     A.  Yes, sir, I have it.
9     Q.  Is there a number on the bottom left-hand corner of that
         10     page?
         11     A.  Yes, sir.  The first report being A and then a block, I
         12     guess a blank, 02014.
         13     Q.  And how many pages does this document continue through?
         14     A.  It's only one page, but the other criminal activity
         15     reports are behind this.  Numbered --
         16     Q.  Could you tell us those numbers?
         17     A.  Yes.  A02015, A02016, A02017, and A02018.
         18     Q.  Now, to answer question 60 would you have to review those
         19     criminal history reports?
         20     A.  Yes, sir, you would have to.
         21     Q.  Okay.  Now, after you were told what the correct answer
         22     was to D, did you go back and review the criminal history
         23     reports?
         24     A.  Yes, sir, I did.
         25     Q.  And to review those criminal history reports what
                                                            668
                           Carpenter - direct
1     specifically did you look at?
2     A.  I looked at each report, the beat, the date of
3     occurrence, the offense, the location incident, the time of
4     occurrence, the report number, and also comments,
5     c-o-m-m-e-n-t-s slash descriptions that are information that
6     is on each page.  And then I narrowed it down to what I
7     needed to look at based upon the responses available to
8     me.
9     Q.  And did you look at the arsons that had happened on that
         10     particular beat?
         11     A.  Yes, sir, I did.
         12     Q.  And did you find that the -- in the information for each
         13     arson was there a time that the offense had been reported?
         14     A.  Yes, sir.
         15     Q.  And did you find that the offenses had been -- could you
         16     tell us how many arsons there were, what page they were, and
         17     what time they were reported?
         18     A.  The first arson was reported on the criminal activity
         19     report dated 30 November '93, and the time was in military
         20     time, 23:30.  That's 2-3-3-0
         21     Q.  And what was the race of the offender?
         22     A.  The race was white.
         23     Q.  Okay.  Is there another arson for that particular beat?
         24     A.  Yes, sir.
         25     Q.  And what date is that?
                                                            669
                           Carpenter - direct
1     A.  Okay.  That's listed -- excuse me.  Let me go back to the
2     first arson.  That page number in the packet is 02016 --
3     correction, 02015.  The 5 is kind of blurred.  On the second
4     arson --
5     Q.  Just give us the page number.
6     A.  Is A02018 on the 3rd of December.
7     Q.  What's the date for that arson -- excuse me, the time of
8     that arson?
9     A.  The time is 24:30.  2-4-3-0.
         10     Q.  And is that a time method of keeping time that's used in
         11     the Chicago Police Department, 2-4-3-0?
         12     A.  Negative.  That is not the correct military time to be
         13     used for the presumed time of this report.  And it is not the
         14     same time as the other arson.
         15     Q.  So 23:30 is not the same as 24:30?
         16     A.  No, sir.  That would be, if the second time is correct,
         17     at one hour apart.
         18     Q.  And what's the race of the offenders on that 02018, if
         19     any?
         20     A.  The race is white.
         21     Q.  Are there any other arsons for that particular beat in
         22     that packet of material?
         23     A.  No, sir.
         24     Q.  Now, let's go back to question 60.  Which answer did you
         25     select when you took the test?
                                                            670
                           Carpenter - direct
1     A.  For answer 60 I selected E, like in Edward.
2     Q.  And what's the choice that corresponds to E on question
3     60?
4     A.  Choice 60-E reads, "Involved offenders that were of the
5     same race."
6     Q.  Now, when you took the in-basket on the lieutenant's
7     test, were you able to answer all 60 questions in the time
8     allotted?
9     A.  No, sir.
         10     Q.  How many were you able to answer?
         11     A.  On that test I was able to answer 37.
         12     Q.  Out of 60?
         13     A.  Yes, sir.
         14     Q.  Now, in your work as a Chicago police sergeant have you
         15     ever been criticized for not being able to get your work done
         16     quickly enough?
         17     A.  No, sir.
         18              MR. FLAXMAN:  Nothing further.  Thank you.
         19              MR. KERTEZ:  Your Honor, at this point we would like
         20     to move to strike the testimony that you just heard.  It's
         21     clear from his testimony that he did not take this
         22     examination under testing conditions of any sort whatsoever.
         23     And, therefore, what he's testifying to could in no way be
         24     reliable or relevant to the test that was taken by the
         25     candidates for the 1993 police sergeant examination back in
                                                            671
1     1993.
2              THE COURT:  Well, I'm not willing to strike it.  I
3     think that that's really argument, and it has to do with the
4     weight, if any, that should be given to it.  But it seems to
5     me it doesn't disqualify it as relevant evidence.
6              Admittedly he also is biased, but that doesn't mean
7     that the testimony would be barred or stricken.  It seems to
8     me the argument that you're making goes to the weight.  It
9     doesn't go to the admissibility of it.
         10              MR. KERTEZ:  All right, Your Honor.  I'm just trying
         11     to make my record.
         12              THE COURT:  I understand.  So your motion to strike,
         13     I guess is what it is, is denied.  But you sought to strike
         14     all of the testimony.  Now, whether you have some specific
         15     portion of it that you wish to strike, you'd have to address
         16     that because I just considered the entire testimony.
         17              MR. KERTEZ:  All right, Your Honor.  I would then at
         18     this point move to strike that testimony regarding the length
         19     of time it took him to take the least.  Again, he did not
         20     take that test under any type of testing conditions.  And for
         21     him to put in testimony regarding how long he took a test
         22     under the conditions where he took it, where he took breaks
         23     and whatnot, it seems to me that that is not relevant, that
         24     is not reliable, and that's not appropriate for this Court to
         25     consider.
                                                            672
1              THE COURT:  All right.  Am I correct in inferring
2     from all of this that the time allotted was one hour and 15
3     minutes to take this?
4              MR. KERTEZ:  I don't think we've had any
5     testimony --
6              THE COURT:  Was there a time limit to the --
7              MS. PAPUSHKEWYCH:  There was a review time, Your
8     Honor, and there was a --
9              THE COURT:  What was that?
         10              MS. PAPUSHKEWYCH:  I'm sorry.  There was time to
         11     review all of the materials, Your Honor, and then there was a
         12     time to take the examination.  None of that has been put into
         13     testimony at this point.  I mean, there was a time for the
         14     candidates to review the materials at the test site, and then
         15     they were allotted -- and take notes, and then there was a
         16     time for them to actually answer the 60 questions.  That is
         17     not currently in the record.
         18              MR. FLAXMAN:  Well, we are going to be putting in
         19     this exhibit, Defendant's Exhibit 5, which at page 107 and
         20     108 recites that one hour was allowed to review, organize,
         21     and develop responses to the materials which had accumulated.
         22     Instructions imbedded in the exercise further clarified the
         23     test.  Candidates were required to complete each test.  When
         24     the review time was completed, candidates were allowed one
         25     hour and 15 minutes to complete 60 multiple choice questions
                                                            673
                           Carpenter - direct
1     based on the test they had just completed in the in-basket
2     simulation.
3              THE COURT:  All right.  So the total is two hours
4     and 15 minutes?
5              MR. FLAXMAN:  One hour --
6              MS. PAPUSHKEWYCH:  Well, one hour to view and take
7     notes and then the rest was to actually take the -- answer
8     the questions.
9              MS. GLINK:  But, Your Honor, they had the materials
         10     with them at the time they were answering the questions.
         11              MS. PAPUSHKEWYCH:  Right.  Right.
         12              MS. GLINK:  Since we haven't had any testimony on
         13     this, I think we need some clarification.
         14              THE COURT:  It's not clear to me at the time he took
         15     the test, but that he had reviewed it apparently the day
         16     before.
         17              MR. FLAXMAN:  Could I reopen my direct examination
         18     to clarify?
         19              THE COURT:  All right.  Let's have it clarified.
         20     Then you can resume your cross.
         21                          DIRECT EXAMINATION
         22     BY MR. FLAXMAN:
         23     Q.  When you -- before you self-administered the test today
         24     had you had an opportunity to look over the written materials
         25     that are marked as Plaintiffs' Exhibit 67?
                                                            674
                           Carpenter - direct
1     A.  Yes, sir.
2     Q.  And where were you when you reviewed those materials for
3     the first time?
4     A.  I saw these materials for the first time yesterday
5     outside this courtroom in the next conference room.
6     Q.  And do you know how much time you spent going through
7     those materials yesterday outside in the conference room?
8     A.  Yes, sir.  Approximately 20 to 30 minutes with another
9     sergeant.
         10     Q.  And when you reviewed with it the other sergeant -- who
         11     was the other sergeant?
         12     A.  The other sergeant was Sergeant Doris Byrd.
         13     Q.  And when you reviewed it, did you -- well, and then this
         14     morning when you self-administered the test, did you have
         15     those materials Plaintiffs' Exhibit 67 with you?
         16     A.  Yes, sir.
         17     Q.  And did you refer to those materials Plaintiffs' Exhibit
         18     67 when you answered the multiple choice questions?
         19     A.  Yes, sir.
         20              THE COURT:  Which is contrary to the way the test
         21     was set up.  You couldn't refer to the materials while you
         22     were taking the test.
         23              THE WITNESS:  Yes, you could, sir.
         24              THE COURT:  Oh, you had one hour to review it and
         25     then you kept the materials?
                                                            675
                           Carpenter - direct
1              MS. PAPUSHKEWYCH:  You kept the materials, Your
2     Honor.
3              THE COURT:  When you took the test.
4              MS. PAPUSHKEWYCH:  You could take notes, and
5     hopefully people took notes rather than keep on going back to
6     the materials.  But you could keep them.
7              THE COURT:  But they had the materials as well?
8              MS. PAPUSHKEWYCH:  Right.
9              MR. FLAXMAN:  Page 108 they were allowed to refer to
         10     the materials in the in-basket and to their notes.
         11              THE COURT:  All right.
         12     BY MR. FLAXMAN:
         13     Q.  And did you refer to the materials in the in-basket when
         14     you took the notes?
         15     A.  Yes, sir.  And I did not take any notes to further
         16     handicap myself.
         17              THE COURT:  All right.  Let me just -- we have to
         18     move ahead on this.  We are talking about admissibility of
         19     testimony.  As the witness has testified to, he handicapped
         20     himself.  He made it harder for himself.  He probably -- in
         21     the way this was done it would cause him to be slower in
         22     answering the questions as opposed to the normal -- following
         23     the normal test procedures.
         24              But having said that, we don't know what the
         25     statistics are as to how many actually were able to complete
                                                            676
1     the test and whether that had -- whether race had any
2     bearing -- was any indication as to who could complete it and
3     who couldn't and all the rest of it.  I'm going to let it in
4     for whatever it may or may not be worth.
5              Admittedly it isn't an exact duplication of it; so,
6     therefore, the weight to be given to this is not very much.
7     We don't know how representative the witness is as to time
8     and ability to answer questions and all the rest.  We don't
9     have any of that stuff.  But it seems to me it is relevant,
         10     and both sides have the right to argue what weight, if any,
         11     should be given to it.  And so I will in the exercise of my
         12     discretion overrule the objection and permit it to be
         13     admitted for whatever it may be worth.
         14              MR. KERTEZ:  Your Honor, I have one further
         15     objection before we proceed here.  And that is that as I
         16     understand your ruling the witness may testify regarding what
         17     skills and abilities a sergeant has that may be identified
         18     and tested on that particular in-basket portion.
         19              He talked about the timing that it took for him to
         20     complete the test again.  And that is not part of what he was
         21     an expert here to testify about.  And on that ground as well
         22     I would object.
         23              THE COURT:  You mean that he's only permitted to
         24     testify as a job analytical witness?  That he's not permitted
         25     to testify to anything else?
                                                            677
1              MR. KERTEZ:  Your Honor, he is certainly not an
2     expert in administration of --
3              THE COURT:  I mean, I don't understand that I have
4     limited either side in the witnesses that you present.  I
5     mean, this is a preliminary injunction hearing.  We don't
6     have a final pretrial order.  We haven't gone through the
7     elaborate time consuming procedures that normally are
8     involved.  So you're saying that he's not permitted to
9     testify to anything other than job relatedness?
         10              MR. KERTEZ:  As to what skills and abilities in his
         11     opinion a sergeant would need reflective in the in-basket,
         12     that is my understanding of what he is an expert up there to
         13     testify as to, and certainly what he's just testified to
         14     regarding the administration of the test and how long it took
         15     an individual to do it.
         16              THE COURT:  Well, it certainly comes in as
         17     surprise --
         18              MR. KERTEZ:  Yes.
         19              THE COURT:  -- in a sense that it's something beyond
         20     what was indicated.  But I don't find that it's going to
         21     disqualify him as a witness.  If you needed additional time,
         22     we'll provide additional time by reason of the surprise,
         23     because you're really not in your case in chief yet.  So I
         24     will overrule the objection.  There was no specific
         25     limitation on what a particular witness could testify to that
                                                            678
1     I'm aware of.
2              MR. KERTEZ:  Judge, may we have 10 minutes before we
3     resume?
4              THE COURT:  To prepare for cross-examination?
5              MR. KERTEZ:  Yes.
6              THE COURT:  All right.  You certainly are entitled
7     to that.
8         (Brief pause.)
9              THE COURT:  All right.
         10              MR. KERTEZ:  Your Honor, we have no questions of
         11     this witness at this time.
         12              THE COURT:  All right.  That completes your
         13     testimony then and you are excused.
         14              THE WITNESS:  Yes, sir.
         15              THE COURT:  And I won't take it as a lack of your
         16     interest in the case if you go home and get some sleep.
         17              THE WITNESS:  Okay, sir.  Thank you very much, Your
         18     Honor.
         19         (Witness excused.)
         20              MR. FLAXMAN:  We have no more live testimony in our
         21     case.  We have stipulations, we have documents -- exhibits
         22     that are coming in through agreement.  We have stipulated
         23     testimony about Superintendent Rodriguez, and we have some --
         24              THE COURT:  Should we deal with that now or do you
         25     have somebody available that you could put on?
                                                            679
1              MS. PAPUSHKEWYCH:  Not right now.  Your Honor, we
2     just gave Mr. Flaxman the stipulated testimony.  We had taken
3     his stipulations and ours together, so he hasn't had a chance
4     to review those.
5              THE COURT:  Do you think we should break at this
6     point?  Would that --
7              MR. FLAXMAN:  Yes.
8              THE COURT:  The problem I have is I have just a
9     short matter, a telephonic conference on a very difficult
         10     case that may have -- may be settling.  And it is going to be
         11     a real problem if it doesn't.  That call is set up between
         12     Michigan and Chicago and I forget where else.  It's set up
         13     for 2:30.  But it should be very brief, because either it's
         14     been settled or it hasn't, and we will give it another date.
         15              So we would plan to resume then about 2:40.  That
         16     will give you some time.  And you're welcome to use all of
         17     our facilities.
         18              MS. PAPUSHKEWYCH:  Fine.
         19              THE COURT:  Stay in the courtroom if you wish.  You
         20     can use the jury room and the witness room and all the rest
         21     of it.
         22              MS. PAPUSHKEWYCH:  May I just inquire is plaintiff
         23     resting his case at this point?  Because I am going to renew
         24     my motion, of course.
         25              THE COURT:  All right.  But he's not resting because
                                                            680
1     there's some other evidence --
2              MS. PAPUSHKEWYCH:  Okay.  I'm just clarifying.
3              THE COURT:  -- but you want to work through it so
4     you can do it by stipulation as I understand.
5              MR. FLAXMAN:  That's correct.  And there's some
6     statistics that we haven't started to talk about yet.  But
7     live testimony we are done with.
8              MS. PAPUSHKEWYCH:  Okay.
9              THE COURT:  So that would give you an opportunity if
         10     you've got some live witnesses that you want to put on like
         11     Kline and --
         12              MS. PAPUSHKEWYCH:  We will put on some witnesses
         13     this afternoon, Your Honor.  We'll be back at 2:45, is that
         14     right?
         15              THE COURT:  All right.  Let's make it 2:45.
         16              MS. PAPUSHKEWYCH:  Okay.
         17              THE COURT:  All right.  Fine.
         18              MS. PAPUSHKEWYCH:  Thank you.
         19              THE COURT:  And we'll stand in recess then at this
         20     time.
         21         (Court adjourned at 12:15 p.m., until 2:45 p.m.)
         22     
         23     
         24     
         25     
                                                            681
1                      *  *  *  *  *  *  *  *  *  *
2                         C E R T I F I C A T E
3         I hereby certify that the foregoing is a true and correct
4     transcript of the aforesaid matter.
5     
6     ________________________________   __________________________
7     Official Court Reporter            Date
8
9
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                                                            682
 1                     IN THE UNITED STATES DISTRICT COURT
                NORTHERN DISTRICT OF ILLINOIS
 2                              EASTERN DIVISION

          
 3        
PEGGY L. ADAMS, et al.,  )  No. 94 C 5727
 4                                 )
              Plaintiffs,)
 5                                 )
          vs.            )  Chicago, Illinois
 6                                 )
CITY OF CHICAGO,         )  
 7                                 )  March 8, 1996
              Defendant. )  2:55 p.m.
 8

 9
                    REPORT OF PROCEEDINGS
10
            BEFORE THE HONORABLE JOHN A. NORDBERG
11

12
APPEARANCES:
13

14
FOR THE PLAINTIFFS:     MR. KENNETH N. FLAXMAN
15                                (Kenneth N. Flaxman, P.C., 
                         122 South Michigan, Suite 1850,
16                                 Chicago, IL  60603)

17        
FOR THE DEFENDANT:      MS. DARKA S. PAPUSHKEWYCH
18                                MS. SHONA S. GLINK
                        MR. JAY M. KERTEZ
19                                (City of Chicago, Law Department,
                         30 North LaSalle, Suite 1020,
20                                 Chicago, IL  60602)
    
21        

22        

23                              PATRICK J. MULLEN
                   Official Court Reporter
24                        2128 United States Courthouse
                   Chicago, Illinois 60604
25                               (312) 435-5565
 1            (Proceedings in open court.)
 2                 THE COURT:  All right.  Court is back in session, if 
 3        we can get everybody in.  All right.  How should we proceed 
 4        now?  Do you have a stipulation on some of the evidence to 
 5        come in?
 6                 MR. FLAXMAN:  We don't have those yet.
 7                 THE COURT:  Okay.
 8                 MS. PAPUSHKEWYCH:  Do you have the superintendent's?
 9                 MR. FLAXMAN:  We will.  We have the proposed 
10        stipulation of the testimony of Matt Rodriguez which I still 
11        have not had a chance to completely review and compare to his 
12        deposition.  I've designated some parts, and they've 
13        designated some parts.  I'm not sure if there are some 
14        additional parts that I should designate.  I'll have responded 
15        to that by Monday morning.  We will be agreeing on what comes 
16        in.  It's just being sure that --
17                 THE COURT:  All right.  I don't require that it has 
18        to be read in open court because I can read it faster, you 
19        know.
20                 MS. PAPUSHKEWYCH:  We were not going to, Your Honor.
21                 THE COURT:  Well, how about the exhibits?  Have you 
22        had time to review them to see -- 
23                 MR. FLAXMAN:  Well, we had --
24                 THE COURT:  -- what you can agree comes in and then 
25        see if we have any disputes on the exhibits?
                                                            683
 1                 MR. FLAXMAN:  Well, we had tried to agree, but nobody 
 2        is arguing about foundation.  We have to get a list together 
 3        of exactly which exhibits we've used and which are coming in, 
 4        which we don't have yet.
 5                 THE COURT:  Right, except I would observe that we 
 6        really should have had an objection to foundation on anything 
 7        that you're going to be raising that as an objection to 
 8        because the witness is on the stand.  Normally, if there can 
 9        be a foundation laid, it can be laid right then.  The idea 
10        that we would wait until --
11                 MS. PAPUSHKEWYCH:  No, we are not.
12                 THE COURT:  -- the witnesses are gone --
13                 MR. FLAXMAN:  There will be no objections to 
14        foundation.
15                 MS. PAPUSHKEWYCH:  There will be none.
16                 THE COURT:  Oh, I misunderstood.  Okay.
17                 MS. PAPUSHKEWYCH:  No, no.  Please.
18                 THE COURT:  No, no, no, I'm not trying to malign 
19        anybody.  I just didn't hear it right; that's all.
20                 MR. FLAXMAN:  Okay.  
21                 THE COURT:  Okay.
22                 MR. FLAXMAN:  There's no question about anything.  We 
23        just need to be sure that we have identified everything so 
24        that we can give everything to Your Honor.
25                 THE COURT:  All right.  So you have put in all that 
                                                            684
 1        you can at this point?
 2                 MR. FLAXMAN:  That's correct.
 3                 THE COURT:  All right.  You'll have time to make your 
 4        motion, and it will be --
 5                 MS. PAPUSHKEWYCH:  At the end.  I can see it at the 
 6        end of all the testimony in this case, Your Honor.
 7                 THE COURT:  It will be heard and decided nunc pro 
 8        tunc.
 9                 MR. FLAXMAN:  Right.
10                 MS. PAPUSHKEWYCH:  After a trial on the merits.
11                 THE COURT:  Do you have some witnesses now that we 
12        can put on?
13                 MS. PAPUSHKEWYCH:  I do.
14                 THE COURT:  Good.  All right.  Let's call the next 
15        witness then as part of the defendant's case in chief.
16                 MS. PAPUSHKEWYCH:  Can I just have a clarification 
17        for the record?
18                 THE COURT:  Sure.
19                 MS. PAPUSHKEWYCH:  I understand that the plaintiff 
20        has not closed his case for purposes of stipulations.
21                 THE COURT:  As I understand it, he has no more live 
22        testimony.
23                 MS. PAPUSHKEWYCH:  Right.
24                 THE COURT:  But he does wish to put in Superintendent 
25        Rodriguez's deposition, at least portions of it, and we need 
                                                            685
 1        to have the offer and rule on the admissibility of the 
 2        exhibits.
 3                 MS. PAPUSHKEWYCH:  Right.
 4                 MR. FLAXMAN:  There's also a stipulation -- well, 
 5        there will, I believe, be a stipulation about numbers and 
 6        disparate impact and things of that nature which the City has 
 7        in its word processor.
 8                 MS. PAPUSHKEWYCH:  Right.  The only thing that I'm --
 9                 THE COURT:  Okay.  I thought maybe some of that was 
10        in the report.
11                 MS. PAPUSHKEWYCH:  Oh, no, this is Mr. Flaxman's 
12        stipulations.  He wants us to stipulate to some numbers that 
13        he has created.  So we need to work that out between the 
14        parties.
15                 THE COURT:  Oh, okay.  All right.  Do we have in the 
16        report of who took it -- 
17                 MR. FLAXMAN:  Yes.
18                 THE COURT:  -- and the racial breakdowns and the 
19        first cut and the final percentages?
20                 MS. PAPUSHKEWYCH:  I don't believe all that is in 
21        there, no.
22                 MR. FLAXMAN:  A great deal --
23                 MS. GLINK:  Your Honor, there's a great deal of race 
24        information that is set forth in Exhibit D.
25                 THE COURT:  Defendant's Exhibit D as in "dog"?
                                                            686
 1                 MS. PAPUSHKEWYCH:  D.
 2                 MS. GLINK:  D as in "dog."
 3                 THE COURT:  Right.
 4                 MS. GLINK:  And Dr. Barrett's own report.  
 5                 THE COURT:  That's what I assumed.
 6                 MS. GLINK:  But to disparate impact, we're conceding 
 7        for this examination disparate impact, so I don't --
 8                 THE COURT:  Right, you have all along.
 9                 MS. PAPUSHKEWYCH:  Right.
10                 MS. GLINK:  Right.
11                 THE COURT:  But it's still -- at least until I hear 
12        everything and finally decide it, I'm not quite sure what's 
13        going to be really considered relevant or not.  If nothing 
14        else, for curiosity, I was interested in what the exact 
15        figures were.  In some of the briefing, the figures seemed to 
16        vary slightly, and I just wanted to have the official count on 
17        that.
18                 MR. FLAXMAN:  The report which will be admitted into 
19        evidence has racial numbers and charts at page Q-3.
20                 MS. GLINK:  He has them in --
21                 THE COURT:  I think I've seen them.  I just wasn't 
22        sure that these --
23                 MS. GLINK:  There's an entire appendix on the impact 
24        of the examination, I believe, Your Honor.
25                 THE COURT:  All right.  So he hasn't rested his case 
                                                            687
                      DeLopez - direct                        
 1        yet.
 2                 MS. PAPUSHKEWYCH:  I'm just trying to --
 3                 THE COURT:  As I understand it, you're not 
 4        contemplating any other live witnesses for your case in chief.
 5                 MR. FLAXMAN:  That's correct, Your Honor.
 6                 THE COURT:  Then you will put on your case in chief.  
 7        Whether there's rebuttal or surrebuttal, we'll leave it to the 
 8        gods.  All right.
 9                 MS. PAPUSHKEWYCH:  I'd like to call Commander DeLopez 
10        to the stand.
11                 THE COURT:  All right.  Sir, if you will, come 
12        forward and stand and raise your right hand.
13            (Witness duly sworn.)
14                 THE COURT:  Counsel, you may proceed when ready.
15                              JOSEPH DE LOPEZ,
16                       DEFENDANT'S WITNESS, DULY SWORN
17                             DIRECT EXAMINATION
18        BY MS. PAPUSHKEWYCH:
19        Q.  Could you please state and spell your last name for the 
20        record?
21        A.  Joseph DeLopez, D-e-L-o-p-e-z.
22        Q.  And what is your current occupation?
23        A.  Chicago police officer.
24        Q.  What is your rank?
25        A.  I am a commander of police.
                                                            688
                      DeLopez - direct                        
 1        Q.  And what career service rank do you hold?
 2        A.  My career service title is lieutenant of police.
 3        Q.  And what is your current assignment, sir?
 4        A.  I'm currently assigned as a district commander of the 23rd 
 5        District.
 6        Q.  Where is the 23rd District?
 7        A.  That's 3600 North Halsted.
 8        Q.  And what was your assignment previous to becoming a 
 9        district commander?
10        A.  I was commander of the training division.
11        Q.  And how long were you commander of the training division?
12        A.  For three years.
13        Q.  During what period of time?
14        A.  1992 to 1995.
15        Q.  As commander of the training division, were you 
16        responsible for the training programs in existence at the 
17        academy?
18        A.  Yes, I was.
19        Q.  Is there a training program for police officer recruits?
20        A.  Yes, there is.
21        Q.  And for purposes of brevity, I'll just call them recruits 
22        from now on.  How long is that training program?
23        A.  Approximately 24 weeks.
24        Q.  It's 24 weeks?
25        A.  Yes.
                                                            689
                      DeLopez - direct                        
 1        Q.  What does the program consist of?
 2        A.  It consists of state-mandated training in the areas of 
 3        physical tactics, arrests and control procedures, criminal 
 4        law, human behavior, things like that.
 5        Q.  And do you also teach the policies and practices of the 
 6        Chicago Police Department?
 7        A.  Yes, we do.  They are fundamental.
 8        Q.  And what kind of materials do you teach in the academy to 
 9        recruits?
10        A.  Department directives, general orders, special orders, 
11        department notices.
12        Q.  Why are those areas taught in the academy?
13        A.  They establish the basic policy and guidelines that every 
14        police officer must adhere to and follow for the conduct of 
15        their job with the police department.
16        Q.  And what is the -- when a recruit graduates from the 
17        academy, what is the first assignment for that recruit?
18        A.  District law enforcement.
19        Q.  What is district law enforcement?
20        A.  They'll be assigned to a patrol district.
21        Q.  And who is his or her supervisor in district law, the 
22        immediate supervisor?
23        A.  Their immediate supervisor is a sergeant of police or a 
24        beat sergeant.
25        Q.  And does the officer serve any type of a probationary 
                                                            690
                      DeLopez - direct                        
 1        period?
 2        A.  Yes, they do.
 3        Q.  And how long is the probationary period?
 4        A.  One year from date of hire.
 5        Q.  And after the probationary period, where are they 
 6        assigned?
 7        A.  They're again generally district law enforcement.
 8        Q.  And who is their supervisor at district law?  Is it still 
 9        the sergeant?
10        A.  Still the sergeant.
11        Q.  Is there any particular name we call the sergeant in 
12        district law?
13        A.  Well, the sergeant -- currently under our current 
14        philosophy, the sergeant is called the beat sergeant or the 
15        beat team leader.
16        Q.  Is there -- under the previous philosophy, was there any 
17        other name for that sergeant?
18        A.  The sergeant was called a sergeant or a supervisor of 
19        police.
20        Q.  Have you heard the term "field sergeant"?
21        A.  Field sergeant?  Yes.
22        Q.  What is a field sergeant if you know?
23        A.  You know, it's a sergeant who is assigned to field 
24        operation duties and conducts supervision of officers that 
25        have responsibilities for field duties, such as patrol 
                                                            691
                      DeLopez - direct                        
 1        officers.
 2        Q.  And is the field then the district?
 3        A.  That's the district, correct.
 4        Q.  Okay.  How many districts are there in the City of 
 5        Chicago?
 6        A.  Twenty-five.
 7        Q.  When a police officer has a question or a problem during 
 8        his or her tour of duty, who does he or she go to?
 9        A.  The officer will call the supervisor, primarily the 
10        sergeant if the sergeant is available.
11        Q.  Now, while you were the commander of the training academy, 
12        were you also responsible for the training program for 
13        sergeants?
14        A.  Yes.
15        Q.  How long of a program is that?
16        A.  It was a three-week training program.
17        Q.  Three-week?
18        A.  Three weeks.
19        Q.  Why is it so much shorter than the program for police 
20        officers?
21        A.  Well, basically it's a refresher course for supervisors.  
22        We assume that we did a pretty good job of screening people 
23        and giving them some of the -- screening some of the basic 
24        knowledge which we expect that they'd have when they come to 
25        the academy.  When they get to the academy, we introduce them 
                                                            692
                      DeLopez - direct                        
 1        to some of the primary functions of a supervisor, the 
 2        responsibilities, some of the mechanics in the day-to-day 
 3        operations of supervision, guidance, mentorship, leadership, 
 4        counseling, things like that.
 5        Q.  So are there certain knowledges that you expect a 
 6        supervisor to know on the first day in what I would like to 
 7        call the sergeants' school?
 8        A.  Yes.
 9        Q.  What are those knowledges?
10        A.  They should have the same knowledge or be very well verse 
11        in all the duties of a patrol officer.
12        Q.  And what kind of specific knowledge of the law do you 
13        think that they should have at that point?
14        A.  They should have a very good knowledge of criminal law, 
15        understand the elements of a crime.
16        Q.  And what does the program, the training program for 
17        sergeants, consist of?
18        A.  Well, it consists of, as I stated previously, some of the 
19        fundamental elements of supervision, leadership, guidance, 
20        counseling, and also the mechanics of the supervisor's role, 
21        the forms that have to be filled out, what his 
22        responsibilities are when he or she is out there supervising 
23        officers.
24        Q.  So what are you trying to teach them when they are in the 
25        academy?
                                                            693
                      DeLopez - direct                        
 1        A.  We're trying to teach them correct supervision.  We're 
 2        trying to again refresh their experiences.  We're trying to 
 3        give them some idea of this role, this new function that 
 4        they're going to assume when they leave the academy.
 5        Q.  And what is a sergeant's new role or function in the role 
 6        of sergeant?
 7        A.  Guidance, leadership, giving advice to police officers, 
 8        directing police officers, ensuring that proper procedures are 
 9        being followed, adhering to our departmental guidelines and 
10        procedures and policies.
11        Q.  After the three-week sergeant school, is there any further 
12        formalized training conducted for sergeants?
13        A.  Not generally, no.
14        Q.  Do sergeants have different assignments?
15        A.  Yes, they do.
16        Q.  What kind of assignments can sergeants have?
17        A.  Sergeants can be assigned to a field unit.  In a field 
18        unit, they could be assigned -- there's a beat sergeant, a 
19        patrol sergeant, or a tactical sergeant.  They could be 
20        assigned to one of various specialized units, also.
21        Q.  When a sergeant is transferred --
22                 MS. PAPUSHKEWYCH:  Strike that.
23        BY MS. PAPUSHKEWYCH:
24        Q.  Is a sergeant transferred from one assignment to the other 
25        during his duties as a sergeant?
                                                            694
                      DeLopez - direct                        
 1        A.  Yes.
 2        Q.  And when the sergeant is transferred from one assignment 
 3        to another, does he or she come back to the academy for any 
 4        further training?
 5        A.  No.
 6        Q.  Are all newly-promoted sergeants placed in a specific 
 7        assignment?
 8        A.  Yes.
 9        Q.  And where is that?
10        A.  Policy has been to assign all newly-promoted sergeants to 
11        district law enforcement.
12        Q.  And what is district law enforcement?
13        A.  To one of the 25 police districts.
14        Q.  And how many police officers are assigned to district law?
15        A.  Approximately 6,000.
16        Q.  Within district law, how many police officers does a 
17        sergeant normally supervise during his watch, if you know?
18        A.  On average, six to ten.
19        Q.  And does that average ever change?
20        A.  Yes.
21        Q.  What does that -- when does it change?
22        A.  It's dependent upon availability of supervisors.  There 
23        are times when there may not be an allocated number of 
24        supervisors available, so the span of control would increase.  
25        If there was not a supervisor available, that sergeant could 
                                                            695
                      DeLopez - direct                        
 1        supervise in addition to his own personnel rapid response 
 2        offenders, foot patrol officers, officers that have special 
 3        assignments.  So that could grow to 15 officers or possibly 
 4        more.
 5        Q.  Does a sergeant --
 6                 MS. PAPUSHKEWYCH:  Strike that.
 7        BY MS. PAPUSHKEWYCH:
 8        Q.  You said that it had been the policy that all 
 9        newly-promoted sergeants were placed into an assignment in 
10        district law, is that right?
11        A.  Yes.
12        Q.  Has there been any change in that policy?
13        A.  I'm not sure at this point.  I don't know.
14        Q.  How would you describe the function of a sergeant?
15                 THE COURT:  I'm sorry.  I don't know that we have any 
16        evidence about what is meant by "district law unit" or 
17        "district law."
18                 MS. PAPUSHKEWYCH:  Oh, I'm sorry.  I thought we did.
19                 THE COURT:  If there is, I don't recall it.
20                 MS. PAPUSHKEWYCH:  That's fine.  We can cover it 
21        again.
22        BY MS. PAPUSHKEWYCH:
23        Q.  What is "district law"?
24        A.  District law enforcement is one of the 25 police 
25        districts, a district assignment, a patrol division, district 
                                                            696
                      DeLopez - direct                        
 1        assignment.
 2                 THE COURT:  And he would be assigned to one of the 25 
 3        districts?
 4                 THE WITNESS:  One of the 25 districts, Your Honor, 
 5        yes.
 6                 THE COURT:  Okay.
 7        BY MS. PAPUSHKEWYCH:
 8        Q.  What are the other divisions in the Chicago Police 
 9        Department besides district law?
10        A.  You could be assigned to one of the five bureaus.  Within 
11        each bureau, there are several divisions.
12        Q.  And is district law what the citizens basically see in 
13        terms of the policing on the street?
14        A.  Correct.  When you call 911, the officers that respond are 
15        the officers that are assigned to district law enforcement.
16        Q.  And does district law contain the largest number of police 
17        officers, sergeants, lieutenants, and captains?
18        A.  Yes, it does.
19        Q.  And do you know how many are assigned to district law?
20                 MR. FLAXMAN:  Excuse me.  How many what?
21                 MS. PAPUSHKEWYCH:  I think that if he can answer the 
22        question, he will.
23                 MR. FLAXMAN:  I object to the form of the question.
24                 THE COURT:  Well, I don't think you finished the 
25        question, did you?
                                                            697
                      DeLopez - direct                        
 1                 MS. PAPUSHKEWYCH:  Yes, I did.  I asked how many --  
 2        are police officers, sergeants, lieutenants, and captains 
 3        assigned to district law.
 4                 THE COURT:  Yes, and how many.
 5                 MS. PAPUSHKEWYCH:  Then I asked him does he know how 
 6        many of those are within district law, those individuals, if 
 7        he knew.  I can rephrase the question.
 8                 THE COURT:  Okay.
 9        BY MS. PAPUSHKEWYCH:
10        Q.  Do you know how many sworn officers of all ranks are 
11        within the district law unit?
12        A.  I can give an approximation of patrol officers, police 
13        officers.  The other figures, I really don't have those.
14        Q.  And was your estimation 6,000 patrol officers?
15        A.  Yes, it was.
16        Q.  How would you describe the job function of a sergeant in 
17        relation to the officers that they supervise?
18        A.  Well, the sergeant's role is to guide, supervise, direct, 
19        and ensure that an officer performs his or her primary 
20        function of delivering police services to the community 
21        they're assigned to.
22        Q.  What role does a sergeant have in determining whether a 
23        charge will be placed against an individual?
24        A.  The sergeant's responsibility is to ensure that an officer 
25        has probable cause to make an arrest in the first place, even 
                                                            698
                      DeLopez - direct                        
 1        prior to charging, because that's so fundamental to the charge 
 2        itself.  It's fundamental to the reporting, Your Honor.  You 
 3        have to know the elements of that crime, the crime that you're 
 4        seeking to charge, in order to make the proper case report, 
 5        and then ultimately to deprive some person of their freedom of 
 6        movement and also to ensure that constitutionality is a 
 7        consideration.
 8        Q.  And in determining whether a charge should be placed and 
 9        whether that charge is appropriate, does the sergeant have to 
10        know the elements of a crime?
11        A.  Yes.
12        Q.  Why?
13        A.  Again, restating his or her function, it is to guide, 
14        direct, and to advise the officers, to ensure proper 
15        procedures, and to ensure that proper decisions are made.
16        Q.  Well, can't a sergeant, if they have a question about what 
17        the elements of a crime are, just go up to the station and 
18        look it up in the statutes?
19        A.  Well, it really wouldn't be very practical because of the 
20        nature of the sergeant's role.  We couldn't afford to have our 
21        sergeants constantly leaving the field, going to the station 
22        and looking up information, coming back to the scene, advising 
23        the officers what the proper procedures would be, 
24        inconveniencing the public at large, depriving the public of 
25        service, and in some cases not taking appropriate and quick 
                                                            699
                      DeLopez - direct                        
 1        action in some cases that needed appropriate and quick action.
 2        Q.  Does the field -- where does the field sergeant stay 
 3        during his tour of duty?
 4        A.  Out in the district.
 5        Q.  Is it in the district station?
 6        A.  No, out in the field, out patrolling the district.
 7        Q.  And how does the sergeant normally patrol a district?
 8        A.  The sergeant is assigned to a patrol vehicle, to a squad 
 9        car.
10        Q.  And why does the sergeant need a squad car?
11        A.  Because we expect the sergeant to be mobile, to respond to 
12        calls, to respond to requests by officers for advice or 
13        guidance.  There is an expectation that they will be 
14        self-motivated and attempt to get to as many major incidents 
15        as possible to ensure proper procedures are followed and to 
16        ensure that the officers do conduct themselves properly.
17        Q.  So the field sergeant -- is it your testimony that the 
18        field sergeant has responsibility for not only a certain 
19        number of police officers, but also for a certain geographic 
20        area?
21        A.  Yes.
22        Q.  And what is that geographic area called?  
23        A.  The geographic area is very often called a sector.  Again, 
24        getting back to the norm, as I said, when they have their 
25        normal span of control, they're responsible for patrol of a 
                                                            700
                      DeLopez - direct                        
 1        sector, but they may sometimes span more than one sector, a 
 2        larger geographic area.
 3        Q.  And the police officers within that sector, are those 
 4        police officers on foot patrol?
 5        A.  Some may be.
 6        Q.  And the others are in vehicles?
 7        A.  They're assigned to patrol cars, also, yes.
 8        Q.  And so in terms of your curriculum at the training 
 9        academy, do you teach field sergeants that they are supposed 
10        to be in their cars in the field during their tour of duty?
11        A.  Yes.
12        Q.  Do you teach them to go into the station and look up 
13        statutes?
14        A.  Absolutely not.
15        Q.  In taking an individual into custody, what determination 
16        has to be made by the arresting officer?
17        A.  The officer has to determine whether or not he or she has 
18        probable cause to arrest that person and deprive that person 
19        of his freedom.
20        Q.  And what does an officer have to know in order to 
21        determine whether or not there's probable cause?
22        A.  He should know the elements of an offense, the elements of 
23        the crime itself.  He should know the criminal law.
24        Q.  And if an officer does not know the elements of the 
25        offense, who does that officer turn to?
                                                            701
                      DeLopez - direct                        
 1        A.  His or her sergeant.
 2        Q.  And in order to know whether or not probable cause exists, 
 3        does the sergeant have to know the elements of a crime?
 4        A.  Yes.
 5        Q.  When you make a determination of probable cause in the 
 6        street, does the police officer have the Illinois Compiled 
 7        Statutes with him or her?
 8        A.  Not likely.  It's a pretty large volume of books.  It's 
 9        pretty cumbersome.  It probably weighs about 40 pounds.
10        Q.  And why can't you just go into the station to make a 
11        determination as to whether or not probable cause existed to 
12        take this individual into custody?
13        A.  Well, the exigency of the situation could be a determining 
14        factor.  If you don't arrest somebody until you delay your 
15        consultation or your review of certain material, then go back 
16        to that location where there's an alleged offense, you may not 
17        have an offender at that location.  You are not doing justice 
18        to your victim or your complainant certainly.
19        Q.  In being the commander of the training academy, are you 
20        familiar with the legal requirements of probable cause?
21                 MR. FLAXMAN:  Objection.  He's no longer commander of 
22        the training academy.
23                 MS. PAPUSHKEWYCH:  I'll rephrase that.  Thank you.
24        BY MS. PAPUSHKEWYCH:
25        Q.  In your previous position as commander of the training 
                                                            702
                      DeLopez - direct                        
 1        academy, did you have occasion to become familiar with the 
 2        legal requirements of probable cause?
 3        A.  Yes.
 4        Q.  And can you tell me when probable cause has to be 
 5        established in terms of taking an individual into custody?
 6        A.  Probable cause has to be determined prior to taking the 
 7        person into custody and depriving that person of his or her 
 8        right to freedom of movement.
 9        Q.  And is it in your opinion illegal to take a person into 
10        custody and handcuff them and then determine whether or not 
11        you have probable cause?
12        A.  If you take a person into custody and handcuff them and 
13        deprive them of that right to freedom of movement and they do 
14        not accompany you willingly and voluntarily, then you have, 
15        yes, I agree.
16        Q.  And what are the consequences of not having probable cause 
17        when you take an individual into custody?
18        A.  Well, certainly a potential for some serious civil impact.  
19        You're depriving a person in many cases of their 
20        constitutional rights.  You may have a Fourth Amendment 
21        violation.  You may have a Fifth Amendment violation.  You may 
22        have a First Amendment violation.
23        Q.  And do you teach sergeants in the -- when you were the 
24        commander of the academy, did you teach sergeants about 
25        people's constitutional rights?
                                                            703
                      DeLopez - direct                        
 1        A.  I didn't teach.
 2        Q.  Was the training -- excuse me.  Did the training program 
 3        include some curriculum about constitutional rights?
 4        A.  There was a review of it, yes.
 5        Q.  And are there general orders that talk about what the 
 6        legal requirements are in terms of taking people into custody?
 7        A.  Yes, there are.
 8        Q.  And are those general orders part of what a sergeant needs 
 9        to know?
10        A.  Yes.
11        Q.  And why is that?
12        A.  Again, because of the need for that sergeant to ensure 
13        that proper action is being taken by police officers.  His or 
14        her responsibility is to guide and to direct and to advise the 
15        officers and to ensure that the officers take the proper 
16        action in situations that require their intervention.
17        Q.  What is a field sergeant's role in terms of arrest 
18        reports?
19        A.  A field sergeant is to ensure that proper preparation and 
20        completion of arrest reports and complaints is done by the 
21        arresting officers.
22        Q.  And is it important to assure that those arrest reports 
23        and complaints are accurate?
24        A.  Yes.
25        Q.  Why is that?
                                                            704
                      DeLopez - direct                        
 1        A.  Again, it gets back to what we stated earlier regarding 
 2        establishment of probable cause to make that arrest, including 
 3        the elements of an offense for charging of that particular 
 4        person and for correct charging in many cases.
 5        Q.  In cases of felonies, who actually approves the charges 
 6        filed against an individual?
 7        A.  Well, in some cases, the watch commander himself or 
 8        herself has the authority, and in most cases the final 
 9        approval is the assistant state's attorney.
10        Q.  Does a sergeant have any role in the process that 
11        culminates in approval of felony charges by the state's 
12        attorney?
13        A.  Yes.
14        Q.  What is the sergeant's role in that process?
15        A.  The sergeant's role, again, is to ensure proper 
16        supervision and guidance for an officer, to ensure that the 
17        elements of a crime are, in fact, there, that probable cause 
18        does exist to effect an arrest, that the facts can be 
19        articulated in such a way that a person can be properly 
20        charged or so proper charges can be sought and approved -- 
21        Q.  Well, isn't --
22        A.  -- in felony cases.
23        Q.  Excuse me.  Isn't it adequate to have that review done at 
24        the state's attorney level?
25        A.  That particular review?  No.  I mean, that's fundamental 
                                                            705
                      DeLopez - direct                        
 1        to the preparation of the case prior to presentation to the 
 2        state's attorney.
 3        Q.  When you talk about presentation to the state's attorney, 
 4        what do you mean?
 5        A.  Well, in many felony cases, you will have a case reviewed 
 6        by a detective who will then contact the state's attorney with 
 7        the merits and the elements of a case which you have presented 
 8        to him or to her.  If you haven't already done that and you 
 9        cannot articulate what it is you're seeking to do, you are not 
10        going to be able to relate to a state's attorney the proper 
11        offense with a proper charge that might be sought.
12        Q.  And what is the sergeant's role in terms of the 
13        preliminary investigation of that kind of an offense?
14        A.  Well, again, the sergeant is the first-line supervisor.  
15        He or she is to ensure a proper and thorough preliminary 
16        investigation which does include all the elements of an 
17        offense.  When you report an offense, again, the relationship 
18        between the criminal code, the Illinois Compiled Statutes, and 
19        uniform crime reporting is very important.
20        Q.  What is uniform crime reporting?
21        A.  Uniform crime reporting is the coding and classification 
22        and the actual case reporting of an offense.
23        Q.  And why is that important to do accurately?
24        A.  Because, number one, it establishes the probable cause for 
25        your arrest and, two, it establishes the elements of a crime 
                                                            706
                      DeLopez - direct                        
 1        which you are seeking to charge that person with.  It's a 
 2        document that verifies certain facts regarding a particular 
 3        investigation.
 4        Q.  And what are the consequences of not having accurate 
 5        information on those reports in the context of felony charges?
 6        A.  Possibly lack of approval for the felony charges, possibly 
 7        an inadequate prosecution of a case, and injustice again to 
 8        the victim or the complainant in this particular case that 
 9        you're talking about.
10        Q.  Is it important for a sergeant to know the difference 
11        between different types of felonies?
12        A.  Yes.
13        Q.  And is it for the reasons that you have previously stated 
14        in terms of why it's important for that sergeant to know the 
15        elements of the law?
16                 MR. FLAXMAN:  I object to the form of the question.
17                 THE COURT:  I'll sustain the objection to the form, 
18        not the subject matter.
19        BY MS. PAPUSHKEWYCH:
20        Q.  Why is it important for him to know?
21        A.  Well, again, as previously stated, the fundamental role of 
22        that supervisor is to ensure a thorough preliminary 
23        investigation, to ensure that probable cause has been 
24        established if there is going to be an arrest, to ensure 
25        accurate reporting and documentation of the elements of an 
                                                            707
                      DeLopez - direct                        
 1        offense.
 2        Q.  So this is a process, the felony charge process, that 
 3        starts with the arresting officer and goes through a whole 
 4        level of review, is that correct?
 5        A.  Correct.
 6        Q.  But the initial decision as to the charge is made by the 
 7        original arresting officer, is that correct?
 8                 MR. FLAXMAN:  I object to leading, Judge.
 9        BY MS. PAPUSHKEWYCH:
10        Q.  Who makes this --
11                 THE COURT:  Well, I understood this was a summation 
12        question.
13                 MS. PAPUSHKEWYCH:  I can rephrase it.
14                 THE COURT:  Okay.  Rephrase the question.
15        BY MS. PAPUSHKEWYCH:
16        Q.  Who makes the initial determination as to what charge will 
17        ultimately be presented to the state's attorney?
18        A.  Well, initially the arresting officer will determine what 
19        charge they are going to seek.
20        Q.  And who reviews that?
21        A.  Well, it would probably be presented to that first-line 
22        supervisor, the sergeant.
23        Q.  Is it important for a sergeant to know the general orders 
24        of the Chicago Police Department?
25        A.  Yes.
                                                            708
                      DeLopez - direct                        
 1        Q.  Why is that?
 2        A.  That's the fundamental operating guide for the Chicago 
 3        Police Department.  That establishes policy and procedures for 
 4        the police department.
 5        Q.  Can you give me an example of a general order that you 
 6        believe it is important or critical to know?
 7        A.  Probably the most critical I can think of is probably our 
 8        order that deals with the use of deadly force.
 9        Q.  Why is that important for a sergeant to know?
10        A.  That's an order that deals with the critical 
11        decision-making process whereby an officer or an individual 
12        determines whether or not they're going to use deadly force.  
13        Once you make that decision -- and it's a split-second 
14        decision -- you know, you cannot call back a bullet that 
15        leaves the muzzle of a weapon.  It's critical.  It's a 
16        life-and-death decision.
17        Q.  You have testified that it is important for a sergeant to 
18        know both the elements of a crime and the general orders.  In 
19        our opinion, is it more important for a sergeant to know these 
20        things than a police officer?
21        A.  Could you repeat that, please?
22        Q.  I asked:  In your opinion, is it more important for a 
23        sergeant to know things such as the general orders, special 
24        orders, elements of a crime, than a police officer?
25        A.  I would have to say yes.
                                                            709
                      DeLopez - direct                        
 1        Q.  And why is that?
 2        A.  Because that sergeant has a responsibility to ensure that 
 3        the officers that are assigned to his or her supervision 
 4        conduct themselves properly, ensure that the investigations 
 5        are conducted thoroughly and accurately and that proper case 
 6        reporting procedures are followed, proper departmental 
 7        procedures are followed, proper charges are placed against 
 8        individuals, a whole litany of things that are the role of 
 9        supervision.
10        Q.  Did you review the items that have been identified as the 
11        150-item job knowledge component of the sergeants' exam?
12        A.  Yes.
13        Q.  Did you review all --
14                 MR. FLAXMAN:  Could we have an audible response for 
15        the record?
16                 THE COURT:  What?
17                 MR. FLAXMAN:  He shook his head yes.  I didn't hear 
18        him say anything.
19                 MS. PAPUSHKEWYCH:  He said "yes."
20                 MR. FLAXMAN:  I didn't hear him.
21                 THE WITNESS:  I'll say it louder.  Yes.
22        BY MS. PAPUSHKEWYCH:
23        Q.  Did you review all --
24                 THE COURT:  Go ahead.
25        BY MS. PAPUSHKEWYCH:
                                                            710
                      DeLopez - direct                        
 1        Q.  Did you review all 150?
 2        A.  Yes, I did.
 3        Q.  In reviewing these items, what were you looking for?
 4        A.  I was looking for job relevance.  I was looking for any 
 5        ambiguity or any incorrect answers that might have been 
 6        included in the questions themselves.
 7                 THE COURT:  Can we get the timing that he did this --
 8                 MS. PAPUSHKEWYCH:  Sure.
 9                 THE COURT:  -- whether this was for this trial or 
10        whether this was at the time of the questions?
11        BY MS. PAPUSHKEWYCH:
12        Q.  When did you conduct your review?
13        A.  Last week.
14        Q.  And was it for purposes of preparing for this litigation?
15        A.  Yes, it was.
16        Q.  Were you, in fact, called down to my office?
17        A.  Yes, I was.
18        Q.  Were any of the questions that you reviewed ambiguous or 
19        improperly worded?
20        A.  There were a couple of questions which I thought might be 
21        a little confusing, sure.
22        Q.  Do you recall how many?
23        A.  No, I don't.  There were less than five.  I know that.
24        Q.  Did you form any opinion about whether the questions, the 
25        150 items contained that you reviewed, tested for what a 
                                                            711
                      DeLopez - direct                        
 1        sergeant needs to know?
 2                 MR. FLAXMAN:  I object to the form of the question.
 3                 THE COURT:  Yes, I'll sustain the objection.  What's 
 4        sauce for the goose is -- well, I'll let you proceed with the 
 5        same line the questioning as your counterpart did.
 6                 MS. PAPUSHKEWYCH:  Actually I'll turn to the actual 
 7        items, and we'll save that.
 8            (Discussion off the record.)
 9        BY MS. PAPUSHKEWYCH:
10        Q.  I'm going to hand you what has been marked as Plaintiffs' 
11        Exhibit No. 55.  If you need to take a drink, go ahead.
12        A.  Thank you.
13        Q.  I'm going to ask you some questions about these items, and 
14        I would caution you to, to the extent possible, try not to 
15        reveal the actual contents of the test item.  Sometimes it 
16        becomes a little bit difficult.  But to the extent that you 
17        can, please do that.
18        A.  Okay.
19        Q.  Take a look at question number 1, please.
20        A.  (Witness complying.)
21        Q.  Is this the responsibility --
22                 MS. PAPUSHKEWYCH:  Strike that.
23        BY MS. PAPUSHKEWYCH:
24        Q.  Is the type of activity described in what I will call the 
25        stem, which is the portion of the test question before the 
                                                            712
                      DeLopez - direct                        
 1        alternative answers -- that's what I refer to as the stem -- 
 2        is the type of activity described therein the type of activity 
 3        that a sergeant does?
 4        A.  Yes.
 5        Q.  Turning your attention to question 5, this question asks 
 6        for certain knowledge, is that correct?
 7        A.  Yes, it does.
 8        Q.  In your opinion, does a sergeant need to know that in 
 9        order to perform his job?
10        A.  Yes.
11        Q.  Can you tell us why generally?
12        A.  In general, a sergeant has to ensure that not only does an 
13        officer carry all the required equipment, but an officer 
14        carries what is proper and authorized equipment.
15        Q.  And why is that important?
16        A.  Well, for purposes of officer safety, citizen safety, 
17        liability, effectiveness as an officer to conduct the 
18        responsibilities.  I would liken it to an officer leaving a 
19        police station and knowing he's going to make an arrest 
20        without carrying handcuffs.  That's kind of silly.
21        Q.  If you can turn to question 7 on the next page, take a 
22        look at it, please.
23        A.  (Witness complying.)
24        Q.  Have you had a chance to review it?
25        A.  Uh-huh.
                                                            713
                      DeLopez - direct                        
 1        Q.  Okay.  Is the type of information that is being elicited 
 2        the type of knowledge a sergeant needs to know?
 3        A.  Yes.
 4        Q.  Why is that?
 5        A.  In order to guide and direct his or her personnel to do 
 6        the proper thing when they're conducting their preliminary 
 7        investigation.
 8        Q.  What are the consequences of not knowing this information?
 9        A.  Well, in effect, you could have not only a whole lot of 
10        confusion and improper notification of the wrong parties, but 
11        you could in effect have a delay in the proper preparation of 
12        reports, proper response, proper charging, in addition, a 
13        sergeant and an officer out of service for an inordinate 
14        length of time.
15        Q.  Can you turn to the next question, question 9?
16        A.  (Witness complying.)
17        Q.  Have you had a chance --
18        A.  Yes.
19        Q.  Is the type of knowledge being asked in this question 
20        knowledge that a sergeant needs to know?
21        A.  Yes.
22        Q.  Why?
23        A.  Again, to ensure proper preliminary investigation, proper 
24        documentation, proper reporting of incidents, proper 
25        verification, and ultimately in many cases proper charging.
                                                            714
                      DeLopez - direct                        
 1        Q.  This type of information, do you know where it is 
 2        contained, in what type of document?  Is it in a general order 
 3        or a special order?  That's my question.
 4        A.  The guidance for this particular function?
 5        Q.  Uh-huh.
 6        A.  Yes, in department directives and general special orders.
 7        Q.  Would you take a look at question 10 on the next page?
 8        A.  (Witness complying.)
 9        Q.  Is the type of information being elicited by this question 
10        information that the sergeant needs to know?
11        A.  Yes.
12        Q.  And why is that?
13        A.  In this particular situation, you have a case here where 
14        you've got to establish probable cause before you can proceed 
15        properly.
16        Q.  And how do you establish probable cause in this instance?
17        A.  Through the correct citing of the correct offense.
18        Q.  And is the correct citing of the correct offense contained 
19        in the answers?
20        A.  Yes, it is.
21        Q.  And what is that?
22        A.  That's answer D.
23        Q.  Turn to the next question, please, question 22.
24        A.  (Witness complying.)
25                 MS. PAPUSHKEWYCH:  Excuse me.  I need some water.
                                                            715
                      DeLopez - direct                        
 1                 THE COURT:  Go right ahead.
 2                 THE WITNESS:  Me too.
 3            (Pause.)
 4                 MS. PAPUSHKEWYCH:  I'm sorry.
 5        BY MS. PAPUSHKEWYCH:
 6        Q.  Have you had a chance to --
 7        A.  Yes, I've read this.
 8        Q.  Okay.  Is the type of information being elicited in this 
 9        question important to know for a sergeant?
10        A.  Yes, it is.
11        Q.  And why is that?
12        A.  Because the situation described is one in which the 
13        sergeant may find himself or herself very often being the 
14        first person approached by a police officer seeking some 
15        redress or some reconsideration for a particular type of 
16        personnel action.
17        Q.  And in this question, the personnel action being sought is 
18        being sought by the sergeant, is that right?
19        A.  In this case, the sergeant is the subject of the personnel 
20        action, and he or she is seeking some redress or some 
21        reconsideration of that, yes.
22        Q.  Does that also occur in terms of the people that sergeants 
23        supervise?
24        A.  Yes.
25        Q.  And who is the first-line appeal in instances when such a 
                                                            716
                      DeLopez - direct                        
 1        grievance is brought by a police officer?
 2        A.  Well, the sergeant would be the first person contacted.
 3        Q.  And does the same procedure apply when it is a police 
 4        officer that is initiating a grievance?
 5        A.  Yes.
 6        Q.  Thank you.  Will you turn to the next question, please?
 7        A.  (Witness complying.)
 8        Q.  Why is it important for a sergeant of police to know the 
 9        Bill of Rights?
10        A.  Well, if anyone in a supervisory position isn't familiar 
11        with the Bill of Rights, they certainly can't ensure that they 
12        are guaranteeing those rights or adhering to protection of 
13        those rights, number one.  Number two, from an individual 
14        perspective, if the supervisor is not aware of those rights, 
15        he or she may not be aware of his own or her own rights.
16        Q.  Now, do you see on this document where there is an 
17        indication that the correct answer is C?
18        A.  Yes.
19        Q.  Could you just read C to yourself?
20        A.  Yes.
21        Q.  Does a sergeant ever conduct the type of activity 
22        described in C?
23        A.  Yes, very often.
24        Q.  And when I'm talking about the type of activity, I'm 
25        talking about the last word of C?
                                                            717
                      DeLopez - direct                        
 1        A.  Yes.
 2        Q.  I'd like to ask you another question about that general 
 3        area in question 25.  Normally, is there a formal 
 4        investigation unit within the Chicago Police Department that 
 5        investigates allegations of wrongdoing by police officers?
 6        A.  Yes, there is.
 7        Q.  And does that unit ever conduct the activity described in 
 8        answer C?
 9        A.  Yes, they do.
10        Q.  So under what circumstances would a sergeant actually 
11        conduct that activity?
12        A.  Well, the majority of people that conduct the activity 
13        which you've described from that unit are, in fact, sergeants 
14        for one thing.
15        Q.  Will you turn to question 26, please?
16        A.  (Witness complying.)
17        Q.  Is this information that is being described in this 
18        question information that a sergeant needs to know?
19        A.  Yes, I think they should know this.
20        Q.  And why is that?
21        A.  Again, for a determination of proper reporting, proper 
22        documentation, and in some cases whether or not criminal 
23        elements -- elements of a crime exist and criminal charges 
24        could or should be placed.
25        Q.  Does the documentation vary depending on whether the 
                                                            718
                      DeLopez - direct                        
 1        incident described is criminal or noncriminal?
 2        A.  Yes.
 3        Q.  Question 47.
 4        A.  I've read it.
 5        Q.  Is the information called for in question 47 information 
 6        that a sergeant needs to know?
 7        A.  Yes.
 8        Q.  And why is that?
 9        A.  Generally the sergeant will be the first and in some cases 
10        the only supervisor at the scene of some emergency situation, 
11        and that may extend for quite some time.
12        Q.  And in this instance, it would be somewhat impractical, 
13        would it not, for the sergeant or the police officer to go 
14        back to the station to look up the answer?  Isn't that true?
15        A.  Probably not only impractical, but perhaps even dangerous 
16        for the people involved in the situation.
17        Q.  Can you turn to question 48, please?
18        A.  (Witness complying.)
19        Q.  Generally, do you understand what this question is asking 
20        for?
21        A.  Yes, I do.
22        Q.  Could you generally describe what this question is asking?
23        A.  The question is asking the supervisor to determine what 
24        type of document or report must be submitted based upon some 
25        information that was given to him or her subsequent to their 
                                                            719
                      DeLopez - direct                        
 1        making inquiry about a particular vehicle.
 2        Q.  And is the information contained in E the correct 
 3        information?
 4        A.  Yes, it is.
 5        Q.  And is that information part of the knowledge that a 
 6        sergeant needs to know?
 7        A.  Yes.
 8        Q.  And why is that so?
 9        A.  Well, it's something that is basic and fundamental for the 
10        police officer that that sergeant supervises to know, first.  
11        Second, that sergeant must know this information in order to 
12        correctly and accurately record and document the results of 
13        that particular inquiry that he made.
14        Q.  In your experience, has it ever occurred --
15        A.  Yes.
16        Q.  -- that this kind of -- I'm sorry.  I interrupted you.
17        A.  Yes, it has occurred.  This type of situation is a common 
18        occurrence.
19        Q.  What are the consequences of a field sergeant believing 
20        that B is the correct answer?
21        A.  I'm sorry.  B?
22        Q.  B.
23        A.  B as in "boy."
24        Q.  B as in "boy."
25        A.  Well, from the facts given here, there is no justification 
                                                            720
                      DeLopez - direct                        
 1        to opt for number -- for answer B.  The consequences could be 
 2        deprivation of rights, unauthorized control over property, 
 3        establishment of civil liability for the municipality, in the 
 4        case of this question probably the City of Chicago.
 5        Q.  Moving on to the next page, question 50, I have no 
 6        questions about that.  
 7                 In question 55, who is doing the activity in this 
 8        question?
 9        A.  The sergeant that's referenced in the stem of the 
10        question.
11        Q.  And if the sergeant is undertaking that activity, does he 
12        need to know the information contained in D?
13        A.  Yes.
14        Q.  And why is that?
15        A.  It's information that must be related to the dispatcher in 
16        order to ensure that the proper service is given to that 
17        sergeant's request.
18        Q.  Turning to question 66, first I would like to call your 
19        attention -- oh, I'm sorry.  Please take time to review it.
20        A.  I haven't read it.
21            (Pause.)
22        BY THE WITNESS:
23        A.  Okay.
24        BY MS. PAPUSHKEWYCH:
25        Q.  Do you need some more water?
                                                            721
                      DeLopez - direct                        
 1        A.  No, I'm fine.
 2        Q.  Okay.  Calling your attention to the stem of the question, 
 3        who is seeking the approval in this instance?
 4        A.  The arresting officer.
 5        Q.  And what is this question asking for?
 6        A.  It's asking for a decision to be made regarding the 
 7        appropriate charge that the officer should seek.
 8        Q.  And in order to answer this question, what does the 
 9        officer need to know?
10        A.  The officer has to have a knowledge of the elements of 
11        certain offenses that are listed as options.
12        Q.  And is it important for a sergeant to have similar 
13        knowledge?
14        A.  Yes.
15        Q.  And why is that?
16        A.  Because that sergeant must take some responsibility for 
17        guidance, direction, supervision, proper charging of an 
18        individual, proper reporting of the offense.
19        Q.  And the correct answer -- it is indicated that the correct 
20        answer is contained in E, is that correct?
21        A.  Yes.
22        Q.  What are the consequences of charging somebody with B?
23                 MR. FLAXMAN:  Objection.  It should be -- the 
24        question should be:  What are the consequences of seeking 
25        approval to charge somebody?
                                                            722
                      DeLopez - direct                        
 1                 THE COURT:  Well --
 2                 MS. PAPUSHKEWYCH:  I think I've established, Your 
 3        Honor, that the elements of a crime are what's being -- is 
 4        what is being elicited from these questions.  I have 
 5        established that the elements of a crime, according to this 
 6        witness, are important to know.  Now I think I should be able 
 7        to ask him:  What are the consequences when one doesn't know 
 8        what the elements of the crime is in this context?
 9                 THE COURT:  Right.  What he's saying is that the way 
10        the question is posed is in the context of seeking approval 
11        for a particular charge.
12                 MS. PAPUSHKEWYCH:  The arresting officer -- we have 
13        Commander DeLopez who has testified that it is the field 
14        sergeant's responsibility to supervise the arresting officer 
15        and that it is the field sergeant's responsibility to ensure 
16        that that process is correct.  Therefore, what I'm trying to 
17        elicit from this witness -- and I think I'm doing it correctly 
18        -- is what the consequences are if that process is not 
19        accurate.
20                 THE COURT:  All right.  It's just that -- the point 
21        that I think was made by the objection was that the phrasing 
22        is the arresting officer seeking approval of the charge as 
23        opposed to initiating the charge.  In other words, there is a 
24        third person involved.  There is another person involved.
25                 MS. PAPUSHKEWYCH:  Right, and the question is --
                                                            723
                      DeLopez - direct                        
 1                 THE COURT:  And that person is the one that's going 
 2        to either approve or not approve.
 3                 MS. PAPUSHKEWYCH:  Right.
 4                 THE COURT:  Okay.  It's just that it's somewhat 
 5        misleading when the question is phrased as though there are 
 6        only two people involved.  Here, there are three people.  You 
 7        have the sergeant, the arresting officer, and the person from 
 8        whom he's seeking approval.
 9                 MS. PAPUSHKEWYCH:  I will rephrase the question.
10                 THE COURT:  Okay.
11        BY MS. PAPUSHKEWYCH:
12        Q.  If the arresting officer does not know the difference 
13        between B and E, who does he ask?
14        A.  He would probably first seek guidance from his supervisor 
15        or her supervisor.
16        Q.  And if that sergeant doesn't know the difference between B 
17        and D, what are the consequences?
18        A.  Well, there's a potential for improper charging, and 
19        improper charging could have the impact of charging someone 
20        with a misdemeanor when they should be charged with a felony, 
21        the introduction of inappropriate charges improperly 
22        addressing the offense, and lack of proper redress for the 
23        victim.
24        Q.  Turning to question 73, in the stem of the question, the 
25        police officer is asking the field supervisor for advice, is 
                                                            724
                      DeLopez - direct                        
 1        that true?
 2        A.  Yes.
 3        Q.  And the type of knowledge that is being asked for, is it 
 4        the type of knowledge that is important for a sergeant to 
 5        know?
 6        A.  Yes.
 7        Q.  And why is that?
 8        A.  Well, in this particular case, you know, proper 
 9        disposition of this matter, this situation, would require that 
10        the sergeant give the officer the right advice or the right 
11        instructions.
12        Q.  And why is it important to --
13                 MS. PAPUSHKEWYCH:  Strike that.
14        BY MS. PAPUSHKEWYCH:
15        Q.  Do you see on this page that the correct answer is E?
16        A.  Yes.
17        Q.  Why is it important for a sergeant to know the information 
18        contained in E?
19        A.  Well, again, his guidance and direction is being sought, 
20        and the instructions he gives the officer could have an effect 
21        on whether or not this matter is adjudicated properly.  We're 
22        dealing with the deprivation of property here in this 
23        particular question.
24        Q.  Question 77.
25        A.  Okay.  I'm ready.
                                                            725
                      DeLopez - direct                        
 1        Q.  Is the type of information asked in question 77 something 
 2        that is normally within the purview of a field sergeant?
 3        A.  Yes.
 4        Q.  And in what instances does that happen?
 5        A.  The field sergeant's role is interchangeable often with 
 6        the desk sergeant when the desk sergeant is not available or 
 7        when the desk sergeant is off.
 8        Q.  Question --
 9        A.  If I --
10        Q.  I'm sorry.
11        A.  I'd like to say one other thing.  Finding himself or 
12        herself as a desk sergeant in the absence of the watch 
13        commander, that sergeant is responsible for the conduct of all 
14        activities within that station.
15        Q.  And do you know whether a field sergeant acts as a desk 
16        sergeant in any -- on any regular basis?
17        A.  Assuming the sufficient number of sergeants assigned to a 
18        district and the absence of the desk sergeant, the assigned 
19        desk sergeant, the field sergeant will work as the acting desk 
20        sergeant.  They'll relieve as the desk sergeant.  They won't 
21        be the primary assigned desk sergeant.
22        Q.  Question 79.
23        A.  Okay. 
24        Q.  Calling your attention to what is identified as the 
25        correct answer in C, is the information contained in C -- and 
                                                            726
                      DeLopez - direct                        
 1        by that I mean the class or name or general description of 
 2        that information -- is that the type of information that a 
 3        sergeant could look up?
 4        A.  Sure.
 5        Q.  Does the sergeant need to know, for example, the actual 
 6        number that is referenced in C?
 7        A.  No, it's not like they would know.  There are just too 
 8        many classifications to remember.
 9        Q.  In the stem of the question, you will see that the 
10        question is attempting to elicit information as to what should 
11        be contained in a report, is that correct?
12        A.  Yes.
13        Q.  Does the sergeant need to know that that is the type of 
14        information that should be contained in a report?
15        A.  Yes.
16        Q.  And why is that?
17        A.  Well, the sergeant has the responsibility of reviewing all 
18        case reports for thoroughness, for accuracy, for proper 
19        conduct of an investigation.  In situations such like this, I 
20        mean, there's a critical element here, that particular 
21        identifier that you talk about.  That classification is 
22        important.
23        Q.  And to determine what should be contained in the report, 
24        is it feasible under these circumstances to go and check out 
25        what the answer is in a general order or a special order?
                                                            727
                      DeLopez - direct                        
 1        A.  Well, it's not very practical.  If I can give you a 
 2        graphic example, a supervisor may be reviewing and signing 20 
 3        or 30 case reports.  Again, if that supervisor was to go and 
 4        seek a reference document or guidance for every one of these 
 5        case reports, again, he or she would not be available for his 
 6        other primary duties.
 7        Q.  And in this particular instance, is there something about 
 8        the situation that makes it impractical?
 9        A.  Well, if it was at the time they were actually at this 
10        particular scene or at the incident, yes.  There is certainly 
11        a critical nature here.
12                 THE COURT:  You mean you're saying there's a time 
13        urgency here?
14                 THE WITNESS:  Certainly.  There's safety hazards.  
15        There's a time element.  There's a need for mobilization for 
16        this particular type of incident.  You don't have time to go 
17        seek a reference document.
18                 THE COURT:  All right.
19        BY MS. PAPUSHKEWYCH:
20        Q.  Question 83, again, this is a question where in the stem 
21        the patrol officer is seeking some advice from the sergeant, 
22        is that correct?
23        A.  Yes.
24        Q.  And the underlying advice that is being sought, is that 
25        knowledge that a sergeant needs to know?
                                                            728
                      DeLopez - direct                        
 1        A.  Yes.
 2        Q.  And why is that?
 3        A.  For proper disposition and adjudication of a particular 
 4        type of case, a case referenced here in this stem.
 5        Q.  And what are the consequences of not knowing the answer?
 6        A.  Improper scheduling of a case for adjudication, potential 
 7        denial for a person's right to a fair or a quick hearing on a 
 8        particular situation, again, potential violation of a person's 
 9        rights.
10                 THE COURT:  Are you going to deal with the charges 
11        that some of the questions have wrong answers designated or 
12        that there are two equally valid answers?
13                 MS. PAPUSHKEWYCH:  No.
14                 THE COURT:  You're not going to deal with that. 
15                 MS. PAPUSHKEWYCH:  No, that is not this group of 
16        questions, Your Honor.  There were two groups of questions.
17                 THE COURT:  All right.
18        BY MS. PAPUSHKEWYCH:
19        Q.  Question 84. 
20        A.  I'm ready.
21        Q.  Again, in the stem, is this -- is the information being 
22        sought information that is being sought by a police officer 
23        from the sergeant?
24        A.  Yes.
25        Q.  And is the knowledge needed to answer this question 
                                                            729
                      DeLopez - direct                        
 1        knowledge that a sergeant needs to know?
 2        A.  Yes.
 3        Q.  And why is that?
 4        A.  This is a case that deals with a status offense.
 5        Q.  What is that?
 6        A.  It's an offense that will not result in incarceration.  
 7        There are a few cases that are exceptions to the rule where a 
 8        potential outcome is incarceration and jail.  We're dealing 
 9        again with a case of a potential deprivation of freedom, a 
10        violation of rights, something that would be irreversible if 
11        the wrong decision was made.
12        Q.  Question 86. 
13        A.  Okay.
14        Q.  Again, this seeks information regarding elements of a 
15        crime, is that right?
16        A.  Yes.
17        Q.  Isn't it true that youth officers normally deal with 
18        juveniles?
19        A.  Yes, they will deal with the juvenile in a follow-up 
20        investigation.
21        Q.  So is it important for sergeants to know the information 
22        regarding the elements of these crimes?
23        A.  Yes, in their role as supervisor.  Again, as I stated 
24        previously, it's important for them to know.
25        Q.  And if they don't know it or if they do it wrong, what are 
                                                            730
                      DeLopez - direct                        
 1        the consequences of that?
 2        A.  Well, potentially improper conduct of a preliminary 
 3        investigation, not gathering the correct documentation to 
 4        verify the probable cause for the charge sought, not 
 5        necessarily gathering the correct evidence for prosecution of 
 6        that case, not presenting a very articulate argument for 
 7        charging the right type of offense for that particular 
 8        arrestee, in this case a juvenile, and ultimately in this case 
 9        potentially not elevating this particular offense to the 
10        status of which it should be elevated to, but being kept in a 
11        less serious status, and then again improper prosecution.
12        Q.  Question 91. 
13        A.  Okay.  I'm ready.
14        Q.  Now, this is a circumstance where the field sergeant is 
15        actually responding to an incident, is that right?
16        A.  Yes.
17        Q.  Is this common?
18        A.  Yes, certainly.  The nature of this offense, yes, it's a 
19        common occurrence.
20                 MR. FLAXMAN:  Excuse me.  This is 91?  
21                 MS. GLINK:  Yes.
22                 MR. FLAXMAN:  Could we have some foundation to this 
23        question about commonality or common offenses?  I don't think 
24        we've established that he ever worked in the field.  Perhaps 
25        that can be established.
                                                            731
                      DeLopez - direct                        
 1                 THE COURT:  All right.  I'll require that you lay a 
 2        foundation for his ability to answer this, to answer the 
 3        question as to this occurrence.
 4        BY MS. PAPUSHKEWYCH:
 5        Q.  Commander DeLopez, have you ever served as a sergeant?
 6        A.  Yes, I have.
 7        Q.  And when did you serve as a sergeant?
 8        A.  I served as a sergeant from 1977 to 1984.
 9        Q.  And where were you assigned?
10        A.  High-crime districts of the inner city of Chicago.
11        Q.  And in your assignment in the high-crime districts in the 
12        city of Chicago, did you have occasion to, in fact, respond to 
13        the type of call that is described in question 91?
14        A.  Yes, I did.
15        Q.  And in your role as commander of the training academy, did 
16        you become familiar with the types of calls that sergeants 
17        responded to?
18        A.  I was familiar with those prior to my assignment to the 
19        training division.
20        Q.  Now going back to question 91, is the knowledge being 
21        tested for knowledge that a sergeant needs to know?
22        A.  Yes.
23                 MR. FLAXMAN:  Judge, before we move on, I'd move to 
24        strike his testimony about this being a common practice in 
25        1993, which I think is the relevant time of the test.  He has 
                                                            732
                      DeLopez - direct                        
 1        testified that he was a sergeant up until 1984, and there's no 
 2        showing that he knows what's common or what's not common in 
 3        the years after that.
 4                 MS. PAPUSHKEWYCH:  I will address that.
 5                 THE COURT:  All right.
 6        BY MS. PAPUSHKEWYCH:
 7        Q.  What was your assignment after 1984?
 8        A.  I was commanding officer of Area 5 youth.
 9        Q.  And --
10        A.  Subsequent to that -- 
11                 THE WITNESS:  Well, should I just kind of give you a 
12        narrative of my career?  Would that be better, Your Honor?  
13        How do you want it?
14                 THE COURT:  That's fine.
15                 MS. PAPUSHKEWYCH:  That's fine with me.
16                 THE COURT:  Assuming that it could be done within, 
17        you know, 15 to 20 minutes.
18                 THE WITNESS:  I'll make it a thumbnail sketch.  
19                 THE COURT:  Okay.
20                 THE WITNESS:  I was commanding officer of Area 5 
21        youth.  Subsequent to that, I was assigned as the commander of 
22        the 14th District, the Shakespeare District.  Subsequent to 
23        that, I served as deputy chief of Area 4.  I was responsible 
24        for all the police services in approximately one-sixth of the 
25        City of Chicago.  Subsequent to that, I was a commander of the 
                                                            733
                      DeLopez - direct                        
 1        10th District in the West Side of the City of Chicago.  After 
 2        three years in that assignment, I was assigned to the training 
 3        division where I spent three years from 1992 to 1995.  I'm 
 4        currently assigned to the 23rd District as a district 
 5        commander there.
 6        BY MS. PAPUSHKEWYCH:
 7        Q.  And when did you become a lieutenant?  You failed to tell 
 8        us that.
 9        A.  Oh, I'm sorry.  In 1984.
10        Q.  Why is this knowledge that a sergeant needs to know?
11        A.  Well, a sergeant has a responsibility for ensuring proper 
12        investigation of any allegations of any offenses or crimes.  
13        He has to ensure or she has to ensure not only a proper 
14        investigation but the proper charging.  There's some cases 
15        where decisions have to be made to ensure the safety of an 
16        individual.  In the case of a juvenile, it's very critical 
17        that you determine if, in fact, a juvenile's safety is at 
18        stake, their health, their welfare, things like that.
19        Q.  What would be the consequences of a sergeant thinking that 
20        B was the correct answer?  That's B as in "boy."
21        A.  Well, there's -- I guess there's a presumption with that 
22        particular answer that, you know, only if this individual was 
23        inside of this particular home could this person then actually 
24        intervene and provide what is necessary for this officer to 
25        ensure the safety or the health and welfare of that juvenile.
                                                            734
                      DeLopez - direct                        
 1        Q.  And, in fact, the officer could not do that if the 
 2        sergeant thought that B was the correct answer.
 3        A.  Correct.
 4        Q.  Turning to question 92, is this a question that is seeking 
 5        to test the elements of a crime?
 6                 MR. FLAXMAN:  Objection.
 7                 MS. PAPUSHKEWYCH:  I'll rephrase that.
 8        BY MS. PAPUSHKEWYCH:
 9        Q.  Is this a question that is seeking knowledge regarding the 
10        elements of different offenses?
11                 MR. FLAXMAN:  Objection.
12                 THE COURT:  Well, we have the same argument, that 
13        this is a leading question, I take it.  Again, you have the 
14        right to direct him to a particular area, but you shouldn't be 
15        suggesting the answer.  So I'll sustain the objection as to 
16        the form, but I'll permit you to restate the question.
17        BY MS. PAPUSHKEWYCH:
18        Q.  Have you reviewed question 92?
19        A.  Yes, I have.
20        Q.  What information is the question attempting to elicit?
21        A.  It's attempting to elicit what is the proper charge to 
22        seek approval for based upon some understanding of the 
23        different offenses that are included as options.
24        Q.  And is the correct answer A?
25        A.  The correct answer is A.
                                                            735
                      DeLopez - direct                        
 1        Q.  Is that knowledge that a sergeant needs to know?
 2        A.  Yes, a sergeant should have that knowledge.
 3        Q.  And why should he have that knowledge?
 4        A.  To ensure that there is a proper, thorough investigation, 
 5        preliminary investigation, that proper charges are sought, and 
 6        that he ensures that the officer documents well and properly 
 7        enough information to establish probable cause for the arrest 
 8        and seeking of those charges.
 9        Q.  Turning to question 94, could you review that, please?
10        A.  I'm ready.
11        Q.  Is there any problem with this question?
12        A.  Yes.
13        Q.  Could you generally describe that problem to us?
14        A.  Yes.  In the first sentence, it alleges an act that's 
15        committed against an inanimate object which is virtually 
16        impossible to do.
17        Q.  Is the correct answer C?
18        A.  Yes, it is.
19        Q.  So did you understand this question, despite the bad 
20        wording?
21        A.  Yes, I did.  It doesn't materially change the response to 
22        the question.
23        Q.  Going on to question 96, could you describe what kind of 
24        knowledge is being sought in this question?
25        A.  Yes, the knowledge that's being sought or being tested 
                                                            736
                      DeLopez - direct                        
 1        here is knowledge of which correct charge to seek approval for 
 2        based upon an array of choices here which you would have to 
 3        have some knowledge of the elements of.
 4        Q.  And is A the correct answer?
 5        A.  Yes, it is.
 6        Q.  Going on to question 98, in 1993, was there a unit 
 7        described as or called the major accidents unit?
 8        A.  Yes.
 9        Q.  What was their function?
10        A.  To conduct follow-up investigations in cases regarding 
11        serious personal injury which might result in death or 
12        accidents which did result in death.
13        Q.  So they did the follow-up investigation, is that right?
14        A.  Correct.
15        Q.  And who would do the initial investigation of this type of 
16        incident?
17        A.  Preliminary investigation is done by the district patrol 
18        officers.
19        Q.  And what kind of information is being elicited by this 
20        question?
21        A.  A decision on the -- by the respondent to determine which 
22        charge should be sought for approval, again based upon a 
23        selection of different offenses which you should have 
24        knowledge of the elements of.
25        Q.  And those elements are something a sergeant should know?
                                                            737
                      DeLopez - direct                        
 1        A.  Yes.
 2        Q.  Question 99.
 3        A.  Okay.
 4                 MS. PAPUSHKEWYCH:  May we have a moment, please?
 5            (Pause.)
 6                 MS. PAPUSHKEWYCH:  Thank you.
 7        BY MS. PAPUSHKEWYCH: 
 8        Q.  Question 99, have you had a chance to review that?
 9        A.  Yes.
10        Q.  And what kind of information is being elicited by that 
11        question?
12        A.  A decision of the correct charge to be sought.  For a 
13        certain series of events that are presented here in the case, 
14        a decision has to be made of a proper charge to be placed 
15        based upon certain elements that are included in each of these 
16        offenses.
17        Q.  And are those elements the type of knowledge that a 
18        sergeant needs to know?
19        A.  Yes.
20        Q.  In this instance, what would be the effect if the sergeant 
21        didn't know of having the police officer call the detective 
22        division?
23        A.  Well, if you did not have the elements here as stated and 
24        if you conducted an arrest, you might not have probable cause 
25        for that arrest.  You'd have a violation of civil rights, 
                                                            738
                      DeLopez - direct                        
 1        number one.  If you waited and sought guidance from some other 
 2        source like the detective division prior to taking any action, 
 3        again, you might have an improper detention of an individual, 
 4        or if you did not take action based upon your knowledge, you 
 5        might have a felon who escaped from your custody also, who was 
 6        not charged properly when he should have been charged.
 7        Q.  Can you turn to the next page, question 106?
 8        A.  (Witness complying.)
 9        Q.  What type of information is being elicited?
10        A.  A decision to be made regarding which charge should be 
11        sought to be approved, again based upon a choice of offenses 
12        which require you to have some knowledge of some elements of 
13        these offenses.
14        Q.  Will you turn to question 107, please?
15        A.  (Witness complying.)
16        Q.  I'm sorry.  I need for you to turn back to question 106.
17        A.  (Witness complying.)
18        Q.  In this case, are the alternative answers all felonies?
19        A.  Well, no, they're not.
20        Q.  Could you tell me which one isn't a felony?
21        A.  Answer E.
22        Q.  And is it important for a sergeant to know whether or not 
23        any of these offenses are a felony or not?
24        A.  Yes.  In fact, it's important for a sergeant to know 
25        whether anything is an offense or not an offense because 
                                                            739
                      DeLopez - direct                        
 1        you're going to be seeking to introduce information to charge 
 2        someone with an offense, and again, you have the 
 3        responsibility for the proper conduct of that investigation, 
 4        the proper presentation of the evidence, proper charging, and 
 5        in some cases deprivation of freedom when appropriate.
 6        Q.  Thank you.  Can you go to question 107?
 7        A.  (Witness complying.)
 8        Q.  In this question, is the field sergeant actually 
 9        undertaking the arrest?
10        A.  Yes.
11        Q.  And what type of information is being elicited by the 
12        question?
13        A.  A knowledge of the offense in question and a knowledge of 
14        what would be necessary to charge a person with the correct or 
15        with the cited offense.
16        Q.  In order to arrest an individual, would the sergeant have 
17        to know what that individual was going to be charged with?
18        A.  Yes, because the sergeant would have to again establish 
19        the probable cause and the reasonableness for that arrest.
20        Q.  In the instance where the sergeant is actually arresting 
21        someone, who swears to the complaint?
22        A.  The sergeant will.
23        Q.  And by swearing to the complaint, could you -- do you know 
24        what I mean?
25        A.  Attesting to the fact that -- well, actually you have to 
                                                            740
                      DeLopez - direct                        
 1        clarify this question for me, because the victim will actually 
 2        be the complainant in the case.
 3        Q.  Correct.  What does the sergeant do in terms of the 
 4        victim's complaint?
 5        A.  The sergeant will attest to the fact that everything 
 6        included in that complaint is accurate and correct.  He will 
 7        also ensure that all the elements are reported accurately in 
 8        the report surrounding that incident.
 9        Q.  In this instance, would it be --
10                 MS. PAPUSHKEWYCH:  Strike that.
11        BY MS. PAPUSHKEWYCH:
12        Q.  In this instance, could the sergeant go into the station 
13        in order to determine what the charge should be?
14        A.  Well, in this instance, the sergeant is in the process of 
15        making an arrest.  He's got to follow through with the arrest 
16        situation.  Again, it's not practical to leave the scene, to 
17        go refer to some reference documents, come back to the scene, 
18        and then decide whether or not you're going to arrest someone 
19        and what you're going to charge him with.
20        Q.  Question 108, what type of information is being elicited 
21        by this question?
22        A.  Knowledge of what charges should be sought for approval 
23        based upon the circumstances presented here and making the 
24        choice from a series of offenses that are listed here.
25        Q.  And is the information being elicited something that a 
                                                            741
                      DeLopez - direct                        
 1        sergeant needs to know?
 2        A.  Yes.
 3        Q.  And is C the correct answer?
 4        A.  Pardon me?  Was that C as in "Charles"?
 5        Q.  Is C as in "Charles" the correct answer?
 6        A.  Yes.
 7        Q.  Are the offenses listed in A through E all felonies?
 8        A.  Not necessarily.
 9        Q.  Which ones are not?
10        A.  Battery.  Theft may or may not be a felony.
11        Q.  And what is the process when an individual is being 
12        charged with something other than a felony?
13        A.  When an individual is being charged with something other 
14        than a felony, again, the elements of that offense and the 
15        probable cause for that arrest are presented by the officer to 
16        the sergeant and, after the sergeant ensures proper conduct of 
17        that preliminary investigation, to the watch commander.  The 
18        watch commander will ultimately approve the charges for those 
19        nonfelonies.
20        Q.  And when does that approval occur?
21        A.  The approval for the final charging occurs after the 
22        booking process.
23        Q.  What is the booking process?
24        A.  The person is placed into a lockup.  He or she is 
25        fingerprinted.  A record check is conducted for any warrants 
                                                            742
                      DeLopez - direct                        
 1        or any prior arrest activity to establish identity of that 
 2        person.  Once that person is positively identified, then that 
 3        person is formally charged.
 4        Q.  So the person is already in custody by the time the formal 
 5        charge is approved by the watch commander, is that correct?
 6        A.  Correct.
 7        Q.  Do you think that it's important for -- do you know 
 8        whether it's important for a sergeant to know the elements of 
 9        a crime when someone is being charged with a misdemeanor?
10        A.  Certainly, especially since they're going to be deprived 
11        of their freedom for potentially some length of time.
12        Q.  Going on to the next -- do you need to take a break?
13        A.  Please.
14                 MS. PAPUSHKEWYCH:  Excuse me, Your Honor.  He has a 
15        medical emergency in his family, and he needs to make a phone 
16        call, I believe.
17                 THE COURT:  All right.  Otherwise, we're at --
18                 MS. PAPUSHKEWYCH:  Oh, we're at 4:30.
19                 THE COURT:  -- 4:30, and we were going to break 
20        anyway, I believe.
21                 MS. PAPUSHKEWYCH:  Right.  I'm sorry.
22                 THE WITNESS:  I'm sorry, Your Honor.
23                 THE COURT:  I lost track of time.
24                 MS. PAPUSHKEWYCH:  Me too.
25                 THE WITNESS:  My daughter is in the hospital, and I 
                                                            743
                      DeLopez - direct                        
 1        just got paged twice.  That's why I'm sort of in a rush.
 2                 THE COURT:  Right.
 3                 THE WITNESS:  I don't me to --
 4                 THE COURT:  Well, we'll adjourn then until Monday.  
 5        I'm not sure when you're going to want to ask him to come 
 6        back.  Monday afternoon, is that the idea?
 7                 MS. PAPUSHKEWYCH:  Monday afternoon, yes, but I'll 
 8        speak with Commander DeLopez.
 9                 THE COURT:  All right.  You're then excused.
10                 MS. PAPUSHKEWYCH:  You can go, Jim.
11                 THE WITNESS:  Oh, thank you.
12                 THE COURT:  You may step down.
13                 THE WITNESS:  Thank you, Your Honor.
14            (Witness excused.)
15                 THE COURT:  Then you'll have the weekend to --
16                 MS. PAPUSHKEWYCH:  Sort things out.
17                 THE COURT:  -- work out exhibits and the like.
18                 MR. FLAXMAN:  Yes.
19                 THE COURT:  All right.  We're still on for Tuesday, 
20        though, for proposed findings of fact and conclusions of law?  
21        I really am going to need that in a case like this.  This 
22        thing is burgeoning as we all know.
23                 MR. FLAXMAN:  If we're going to --
24                 MS. PAPUSHKEWYCH:  We're on for Tuesday.
25                 MR. FLAXMAN:  If we're going to go through the other 
                                                            744
 1        set of questions like we did with this on direct in the City's 
 2        case, we might not be done with the cross-examination.
 3                 THE COURT:  On Tuesday?
 4                 MR. FLAXMAN:  Yeah.
 5                 MS. PAPUSHKEWYCH:  We understand.
                                                    
 6                 THE COURT:  You're going to report back to your 
 7        people where we are on the case.
 8                 MS. PAPUSHKEWYCH:  They're here.
 9                 THE COURT:  All right.  I think that will conclude 
10        it.  We'll grant you temporary freedom by declaring that this 
11        proceeding is adjourned.
12                 MS. PAPUSHKEWYCH:  Thank you.  
13            (Proceedings adjourned until 9:00 a.m. on March 9, 1996.) 

14        

15                          C E R T I F I C A T E

16                  I, Patrick J. Mullen, do hereby certify that the 
           foregoing is a complete, true, and accurate transcript of the 
17        proceedings had in the above-entitled case before the 
          Honorable JOHN A. NORDBERG, one of the judges of said Court, 
18        in Chicago, Illinois, on the afternoon of March 8, 1996.

19        

20                                     ___________________________
                                         Patrick J. Mullen
21                                       Official Court Reporter
                                       United States District Court
22                                     Northern District of Illinois
                                          Eastern Division
23        
24
25

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