881
1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3 PEGGY L. ADAMS, et al., ) Docket No. 94 C 5727
)
4 Plaintiffs, )
)
5 v. ) Chicago, Illinois
) March 11, 1996
6 CITY OF CHICAGO, ) 2:10 o'clock p.m.
)
7 Defendant. ) Preliminary Injunction
8
TRANSCRIPT OF PROCEEDINGS
9 BEFORE THE HONORABLE JOHN A. NORDBERG
10 APPEARANCES:
11 For the Plaintiffs: MR. KENNETH N. FLAXMAN
122 South Michigan Avenue
12 Suite 1850
Chicago, Illinois 60603-6107
13
14 For the Defendant: HON. SUSAN S. SHER,
Corporation Counsel, by
15 MS. DARKA S. PAPUSHKEWYCH
MS. SHONA B. GLINK
16 MR. JAY MICHAEL KERTEZ
Assistant Corporation Counsels
17 30 North LaSalle Street
Suite 1020
18 Chicago, Illinois 60602
19
20
21
22
23
ALEXANDRA ROTH CSR, LTD.
24 P. O. Box A-3201
Chicago, Illinois 60609-3201
25 (312) 294-0134
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1 THE COURT: Sorry for the delay. We have an election
2 emergency we had to get scheduled.
3 If you will resume your position.
4 (Witness resumed the stand.)
5 THE COURT: We are all set to continue cross-
6 examination. And, sir, you remain under oath.
7 Mr. Flaxman, you can fire when ready.
8 MR. FLAXMAN: Thank you, Judge.
9 GERALD BARRETT, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
10 CROSS-EXAMINATION (Resumed)
11 BY MR. FLAXMAN:
12 Q. Now, you told us about measures of good psychometric
13 properties for the written job knowledge test on direct
14 examination. Do you remember that?
15 A. Yes.
16 Q. You talked about reliability, is that right?
17 A. Yes.
18 Q. That's one of the those split half reliability measures?
19 A. Yes.
20 Q. You also talked about item total correlations, is that
21 right?
22 A. Yes.
23 Q. Now, is item total correlations also referred to as point
24 biserial correlations?
25 A. Yes.
883
1 Q. And what does it mean if there is a negative?
2 THE COURT: Could I have a definition of point
3 biserial correlation?
4 THE WITNESS: It's just a correlation between the
5 response on a -- one item on a test scored correct or not
6 correct, and a total distribution of responses on the 150-item
7 test. So you take --
8 THE COURT: By the same individual or by --
9 THE WITNESS: All people basically.
10 THE COURT: So it's apples -- it's a specific answer
11 versus --
12 THE WITNESS: Right or wrong answer, and the -- and
13 the total test score, the 150-item test score.
14 THE COURT: I mean, is it all people's answer to the
15 one question, or is it just a single individual's answer to one
16 question?
17 THE WITNESS: You sum all single individuals' answers.
18 THE COURT: All single.
19 BY MR. FLAXMAN:
20 Q. Does the point biserial correlation reflect some measure of
21 the contribution of getting a particular question right as to
22 the final score, or to the variance in the final scores?
23 A. I'm getting confused now.
24 Q. Okay. Let's say you have a question that everybody got
25 right.
884
1 A. Okay.
2 Q. Could you -- would it be meaningful to talk about the point
3 biserial correlation of that question?
4 A. No, it would not.
5 Q. And if you had a question everybody got wrong, then you
6 couldn't talk about point biserial correlation, is that right?
7 A. That's right.
8 Q. Let's say you had a hard item that 50 percent of the people
9 got wrong. Would that be a hard item?
10 A. Not usually.
11 Q. Let's say you had a hard item that 10 percent of the people
12 got right. Would that be a hard item?
13 A. Yes.
14 Q. Will --
15 A. It could be considered a hard item.
16 Q. If there was a high point biserial correlation for that
17 hard item, would that indicate that people who were getting
18 that question right were tending to get higher scores on the
19 test?
20 A. Yes.
21 Q. And if there was a low point biserial correlation for that
22 hard item, would that indicate that people who were getting the
23 question right were not tending to get hiring scores on the
24 test?
25 A. Yes.
885
1 Q. What does it mean when you get a negative point biserial
2 correlation?
3 A. That means that those who got the question right were
4 tending a low score on the test, full test.
5 Q. So that the people that -- does it also mean that the
6 people who got the question wrong were those who did well on
7 the test -- did better on the test?
8 A. Yes.
9 Q. Is there a psychometric justification for including items
10 that have a negative point biserial correlation on a test?
11 A. Yes.
12 Q. What is that?
13 A. When you construct a content-valid test versus a
14 standardized test, which is devised to be used over and over
15 again. As example we talked about a few days ago about
16 cognitability test. Let's assume you have a test of
17 vocabulary, and all of your items are vocabulary items. That
18 would be your general test of cognitability.
19 Then you could -- what is -- we could do various pilot
20 studies. You could take a large sample of people, a vocabulary
21 test. We could analyze the data, and we could say, all right,
22 there are certain items which have a negative relationship to a
23 total score. Now we want to test -- we just measure the
24 vocabulary and nothing else.
25 So what we should do now is, next time we give the
886
1 test, revise the test and start to make it a standardized test.
2 We take out those items and remove them, so that we have a
3 relatively -- what's called a pure measure of vocabulary
4 knowledge.
5 But this is not true in the types of tests we are
6 developing. We're developing what's called a content-valid
7 test. And it's only given one time, and it is on different
8 realms of knowledge. For example, there is a section which
9 deals with the Illinois Criminal Code. There is a section
10 which deals with general and specific orders.
11 So it's not a homogeneous domain of knowledge. So
12 it's certainly possible that somebody who studies one area know
13 more -- knows that better than another area. So at times you
14 can have a very good item, which is good in the
15 content-validity sense, but it may not have a positive
16 correlation to the total score.
17 So it's not unusual to find this occurring in a
18 content-valid test.
19 Q. And is it also not unusual in a content-valid test to find
20 questions that only 4 percent of the people taking the test
21 know the correct answer?
22 A. In any tests we've ever given there is a wide variation in
23 terms of one item, in terms of being hard or easy. So this is
24 a sort of variation you might well find and expect in a
25 content- valid test.
887
1 Q. Now, is it your testimony that if you have a content-valid
2 test for promotion to police sergeant and every question on
3 that test is something that a sergeant has to know the first
4 day they are on the job, that a question which only 4 percent
5 of the police officers taking the test know the correct answer
6 to is content valid?
7 A. I'm saying that every item on the test from our procedure
8 is content valid, yes.
9 Q. And that's true even if only 4 percent of the police
10 officers taking the test know the correct answer?
11 A. It's even true if 90 percent know the correct answer.
12 Q. Well, could you answer my question?
13 A. Yes, this is true.
14 Q. Okay. And every question on that written short answer test
15 was something that a police sergeant has to know the first day
16 on the job, is that right?
17 A. Yes.
18 Q. And this is the kind of knowledge that's critical to doing
19 the job successfully, is that right?
20 A. Well, I think that what we said, it's relevant, it's
21 important knowledge that -- important knowledge to have, yes.
22 Q. And that's true for each question on the written test, is
23 that right?
24 A. Yes.
25 Q. And you reviewed each question on the written test, is that
888
1 right?
2 A. Yes, that's correct.
3 Q. And you determined to your own satisfaction that each
4 question on the written test measured the standard you just
5 articulated, is that right?
6 A. Yes.
7 Q. Let me ask you to look at Plaintiffs' Exhibit 14.
8 MR. FLAXMAN: Your Honor, I have a copy for the Court.
9 THE COURT: I think I have that.
10 MR. FLAXMAN: No, this is -- Plaintiffs' Exhibit 14
11 has corrected formatting problems and has all the questions.
12 THE COURT: All right.
13 BY MR. FLAXMAN:
14 Q. Let me ask you to look at Question 83.
15 THE COURT: Again I am marking all these under seal.
16 MS. PAPUSHKEWYCH: Yes.
17 THE COURT: Excuse me. I interrupted. What question
18 now?
19 MR. FLAXMAN: 83.
20 THE COURT: 83, okay.
21 BY MR. FLAXMAN:
22 Q. Have you had a chance to read Question 83?
23 A. Yes.
24 THE COURT: Excuse me.
25 (Discussion had off the record.)
889
1 BY MR. FLAXMAN:
2 Q. Could you tell us, if you can, why it's important for a
3 police sergeant to know that the correct answer is D rather
4 than E?
5 A. All I can say is that the process we followed three years
6 ago was one where we reviewed the item, used appropriate
7 domain, and that that's the decision we made three years ago
8 following the process.
9 Q. When you say, we made, you mean, I, Dr. Gerald Barrett,
10 made, right?
11 A. I made the final decision of what -- for each item, that's
12 correct.
13 Q. Could you tell us what would be the problem in a sergeant
14 doing his or her job if he or she chose E rather than D?
15 A. Well, you're telling me that they wouldn't have the correct
16 information. They gave the wrong information to -- as I read
17 the question, to a parole officer.
18 Q. Would that wrong information, that incorrect information,
19 have any measurable impact upon the job of being a Chicago
20 police officer?
21 A. Well, I think we hurt the credibility of the sergeant with
22 his people if he gives out the wrong information about a
23 factor.
24 Q. Is credibility of a sergeant one of those things that you
25 identified on your job analysis?
890
1 A. In terms of supervision, we talked about the sergeant, the
2 supervisors of patrol officers.
3 Q. Are you now telling us that the written job knowledge test
4 was also measuring credibility?
5 A. In a sense that -- in a sense that if a person has not --
6 does not know the answer to the question, the supervisory
7 skills might certainly be questioned.
8 Q. Let me ask you to look at Question 15. Do you have that in
9 front of you?
10 A. Yes.
11 Q. Could you tell us, if you can, why it is that it's
12 important for a sergeant to know the correct answer to this
13 question the first day on the job?
14 A. Well, again, he might be asked this very question in terms
15 of what does this entail? If I am given this assignment, what
16 should I be doing?
17 Q. Now, in your job analysis did you ever determine how often
18 it is that sergeants are asked this question that's the subject
19 of Question 15, whether it's once a day, once a year, once
20 every ten years?
21 A. No.
22 Q. Let me ask you to look at Question 147. Could you tell us
23 why it is that it's important for a sergeant to know the
24 correct answer to this question the first day on the job?
25 A. This is the basic philosophy, new philosophy, for the
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1 Chicago Police Department and was considered important that all
2 supervisory ranks under this basic strategic way of policing.
3 Q. Now, did anything in your job analysis reveal that knowing
4 the answer to Question 147 is related to performing the job
5 better?
6 A. In the sense, yes, this is a knowledge that the -- all
7 sergeants, all supervisory ranks, should have about the
8 approach being taken by the Chicago Police Department.
9 Q. In your opinion, the police officer who knows the answer to
10 Question 147 is going to be better as a sergeant than somebody
11 who doesn't know the answer, is that right?
12 A. Well, the aggregation. It's just not one item. We don't
13 depend upon one item. One item only is an exemplar for a
14 broader domain of knowledge. And we don't say that it's one
15 item per se. We say, it's aggregation of all 150 items which
16 is important.
17 Q. Well, did each item count as one point?
18 A. That's correct.
19 Q. Question 148, is that also something that's essential for a
20 sergeant to know the first day on the job?
21 A. This again is relevant information.
22 Q. And could you point to us to where in your job analysis it
23 indicated that knowing the answer to Question 148 is something
24 that a sergeant has to know to do his or her job?
25 A. Well, again, this has to do with the supervisory function
892
1 and understanding the policy of the police -- Chicago Police
2 Department. In other words, it's important that all uniformed
3 officers and particularly the supervisors understand the
4 policies of the department.
5 Q. Are you -- Question 148, you said, relates to supervisory
6 function? Is that your testimony?
7 A. In general I would say, yes, it probably relates to that.
8 I'm not really sure how we keyed it, but it does relate to
9 that -- relate to those sorts of issues.
10 Q. And would you say, give this -- would Question 149 also
11 relate to the supervisory function, the work of the sergeant?
12 A. Yes, again, this is a general policy issue that supervisors
13 should understand and know about in terms of the approach being
14 used by the Chicago Police Department.
15 Q. And this is something, in your opinion, that a sergeant has
16 to know the first day on the job, is that right?
17 A. A sergeant should know -- have the knowledge of the
18 approach being taken by the department in terms of their
19 policing strategy.
20 Q. Is Question 149 something that a sergeant needs to know to
21 assist a police officer by answering questions via radio, for
22 example, about how to interview reluctant, disoriented,
23 injured, mentally ill and minor witnesses or witnesses
24 requiring translators?
25 A. It, I think, emphasizes the point that the responsibility
893
1 is upon the patrol officer to provide these services. It's not
2 upon someone else.
3 Q. Well, is Question 149 -- do you need to know the answer to
4 Question 149 for a sergeant to assist a police officer to do
5 the police officer's job?
6 A. Well, I think that as part of his responsibility he will
7 want to convey to his patrol officers the primary
8 responsibility is upon the patrol officer himself or herself.
9 Q. Do you need to know the answer to Question 149 to
10 appropriately categorize incidents for reporting and
11 notification purposes?
12 A. For a sergeant to do that?
13 Q. That's correct.
14 A. No, I don't think you have to know this for the sergeant
15 review process.
16 Q. Does a sergeant need to know the answer to Question 149 to
17 identify whether or not elements of a particular incident exist
18 to indicate probable cause?
19 A. No, I don't think that would be required.
20 Q. Does a sergeant need to know the answer to Question 149 to
21 determine if there is justification for an arrest?
22 A. No, a sergeant doesn't have to know that.
23 Q. Does the sergeant need to know the answer to Question 149
24 to determine if a charge is appropriate?
25 A. No.
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1 Q. Does the sergeant need to know the answer to Question 149
2 to identify which report should be used to a particular
3 situation?
4 A. No.
5 Q. Does the sergeant need to know the answer to Question 149
6 to determine -- to know how to process arrestees?
7 A. No.
8 THE COURT: You know, this can go on forever.
9 MR. FLAXMAN: We are almost done.
10 THE COURT: If you are relating it to how he keyed it
11 in, that would be a relevant question you could ask him.
12 Otherwise, you know --
13 BY MR. FLAXMAN:
14 Q. Well, how was -- what work behavior in the master job
15 description did you say was tapped by Test Item 149?
16 A. I don't recall.
17 Q. Do you have that exhibit in front of you, Exhibit D as in
18 dog? And I'd like you to turn to page Appendix I-8. Do you
19 see page I-8?
20 A. Yes.
21 Q. That showed, did it not, that Question 149 was keyed to
22 work behavior and master job description 1A4?
23 A. Yes.
24 Q. And 1A4 is what I have been reading to you in these
25 questions about assisting officers, is that right?
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1 A. It's about supervision, as I recall.
2 Q. Could you explain to us, if you can, now knowing the
3 correct answer to Question 149 relates to 1A4 of the master job
4 description that appears at page C-8 of your report?
5 A. Again, as I said, it has to do with supervisory function
6 and in terms of here is the overriding philosophy of the --
7 Q. Is there particular language in 1A4 about knowing the
8 overall philosophy of the Chicago Police Department?
9 A. No, there is not.
10 Q. So that's -- okay.
11 And could you look at 150?
12 A. Item you are talking about?
13 Q. Question 150 in Exhibit 14. Have you had a chance to
14 review that?
15 A. Yes.
16 Q. Is there anything in your job analysis that indicates that
17 a field sergeant is responsible for dispatching uniformed
18 patrol units to 911 calls?
19 A. Again, it's part of the overall supervisory philosophy
20 that --
21 Q. Dr. Barrett, my question is, is there anything in your job
22 analysis that indicates that a field sergeant is responsible
23 for determining when a uniformed patrol unit should be
24 dispatched to the scene of a 911 call?
25 A. Well, certainly they --
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1 Q. That's a yes or no question, Dr. Barrett.
2 A. I don't recall.
3 Q. Okay. And you decided, did you not, that Question 150 was
4 essential for a field sergeant to know the correct answer to
5 the first day on the job, isn't that right?
6 A. I said it was relevant information for the police sergeant
7 to have.
8 Q. Is relevant different than something that a sergeant has to
9 know the first day on the job?
10 A. Yes, it's relevant information.
11 Q. Relevant?
12 A. I think you said essential.
13 Q. You never said essential?
14 A. Possibly I did, I don't recall saying essential.
15 Q. If you said essential, you were mistaken, is that correct?
16 A. I'm not sure what the actual question was. I thought I
17 said relevant. I could be mistaken.
18 Q. Well, are you telling us that -- if I asked you whether
19 each question was essential for a sergeant to know the first
20 day on the job, would you say yes or no?
21 A. Well, I would say, each one of them is relevant and
22 important to know.
23 Q. That's --
24 A. I think that's what I said.
25 Q. And relevant is something less than essential, isn't that
897
1 right?
2 A. Probably.
3 Q. Okay. Now, at some point in your testimony you referred to
4 a wealth of scientific research that test scores relate to job
5 performance. Do you remember that testimony?
6 A. Not specifically, but I wouldn't disagree with it.
7 Q. Do you remember using the phrase, wealth of scientific
8 research?
9 A. No, I don't recall those exact words, but again I don't
10 disagree with it.
11 Q. Just so that we're clear, none of that scientific research
12 was on the type of in-basket that you administered in Chicago,
13 is that right?
14 A. All I can say is, we don't have -- did not perform studies.
15 Q. Dr. Barrett, my specific question is that isn't it correct
16 that none of that scientific research that test scores relate
17 to job performance concerns the type of in-basket test that was
18 part of the 1993 sergeants promotional test?
19 A. No, I wouldn't agree with that.
20 Q. Would you agree that none of that scientific research
21 relates to the type of oral examination that was part of the
22 1993 sergeants promotional test?
23 A. I wouldn't agree that all communication -- I guess I'd like
24 you to restate the question again.
25 Q. Okay. Would you agree that none of that scientific
898
1 research that test scores relates to job performance relates to
2 the type of oral examination that was part of the 1993
3 promotional test?
4 A. No, I wouldn't agree with that.
5 Q. Could you identify for us any scientific research that
6 supports the claim that a higher score on the oral test is
7 related to better job performance? By oral test I mean the
8 type of oral test that was used in Chicago in the promotional
9 test.
10 A. There have been many assessment centers which I believe
11 mention oral communication in fact related success of
12 supervisor.
13 Q. I didn't hear the last part.
14 A. I'm sorry. There have been many studies which have looked
15 at assessment centers and in particular the mention or oral
16 communication and found that in fact it does relate to job
17 performance as a supervisor.
18 Q. So are you telling us now that that oral test in the
19 sergeants promotional test was an assessment center?
20 A. I'm not saying it itself. I say -- no, it's not an
21 assessment center per se. It could be one element in an
22 assessment center.
23 Q. Could you point us to any research that's identifiable by
24 citation or by book or by journal or by reported decision which
25 supports what you told us, that there is scientific research
899
1 that test scores on the type of oral test that was part of the
2 sergeants promotional test relates to job performance?
3 A. All I can testify to is in terms of many assessment centers
4 have various exercises like this, where oral communication is
5 rated and does relate to the performance of a supervisor.
6 Q. Can you point us to any specific article, Dr. Barrett?
7 A. Well, there is books by -- I can think of one book by
8 Byham.
9 THE COURT: Can we spell that?
10 THE WITNESS: B-y-h-a-m, Byham.
11 BY MR. FLAXMAN:
12 Q. When did Byham write his book, if you recall?
13 A. No, I don't recall.
14 Q. Other than the book by Byham, is there anything else you
15 could point us to to support -- to provide scientific research
16 that test scores on the oral test that was part of the Chicago
17 promotional test relate to -- the higher scores relate to job
18 performance?
19 THE COURT: You're narrowing it to only one type of
20 test?
21 MR. FLAXMAN: That's right now.
22 THE COURT: Not knowledge test.
23 MR. FLAXMAN: No, just right now just focusing on the
24 oral examination.
25 THE COURT: Testing oral ability of oral
900
1 communication.
2 MR. FLAXMAN: Well, the question is specifically
3 directed to the oral component of the promotional test.
4 BY MR. FLAXMAN:
5 Q. Is there anything you could point us to, Dr. Barrett?
6 A. I am trying to find my reference list, which should help
7 me. What page is my reference list on?
8 Q. Page 149 is a reference list. That's page 149 of
9 Defendant's Exhibit D.
10 A. There is no 149 in this copy.
11 MR. FLAXMAN: That's --
12 THE COURT: That's what I got.
13 MR. FLAXMAN: Shall we take time out?
14 THE COURT: How about the attorneys for the defendant
15 coming up with something to help their witness so he can
16 testify?
17 MS. PAPUSHKEWYCH: I believe --
18 THE COURT: Apparently what he has got and my copy
19 doesn't have the page that --
20 MS. PAPUSHKEWYCH: Mine doesn't either, your Honor.
21 THE COURT: -- the reference. Is there a page 149?
22 MR. FLAXMAN: I have a page 149, Judge.
23 MS. GLINK: There is, your Honor, but it seems to be
24 missing from our copies. I can't -- at this point without
25 going back to my office, I can't -- unless Mr. Flaxman has an
901
1 extra copy that he can show to our expert.
2 BY MR. FLAXMAN:
3 Q. Let's -- to facilitate things, if I may, let me hand you my
4 copy of Defendant's Exhibit D, which has a page 149.
5 A. The Bray, B-r-a-y, Campbell and Grant 1974, "Formative
6 Years In Business Calling A Long-Term AT&T Study of Manager
7 Lives." The book discusses various types of assessment center
8 devices and gives information about the assessment tools which
9 do relate to success. Above that, Bray, B-r-a-y, 1982, is an
10 article called, "Assessment Center and Study of Lives, American
11 Psychologist."
12 There -- I see now there are a number of -- I can go
13 through it, but a number of various articles, which I cited,
14 which does discuss assessment centers and research in that
15 area. There is a study, Fitzgerald and Quaintance,
16 Q-u-a-i-n-t-a-n-c-e, 1982, which is a survey of assessment
17 center used in state and local government. It's a general
18 assessment center technology.
19 There is a peer by Gaudler, G-a-u-d-l-e-r, Rosenthal,
20 Thornton and Benston, a meta-analysis of assessment center
21 validity, general applied psychology.
22 (Brief pause.)
23 MR. GLINK: Your Honor, I think we could help expedite
24 it by directing Dr. Barrett to the correct part of his report,
25 if that would help the Court.
902
1 THE COURT: To what?
2 MS. GLINK: To the correct part of his report, which
3 specifically addresses assessment centers.
4 MR. FLAXMAN: I think that Dr. Barrett should be able
5 to find whatever he wants in his report himself --
6 THE COURT: All right.
7 MR. FLAXMAN: -- without --
8 BY THE WITNESS:
9 A. There is also a -- the Byham book I was referring to is
10 Thornton and Byham, B-y-h-a-m, 1982. "Assessment Centers and
11 Managerial Performance." But again there is other articles.
12 That's -- I was giving some chief articles which look at that
13 issue.
14 BY MR. FLAXMAN:
15 Q. Are you telling us now that the oral component of the
16 promotional test was an assessment center?
17 A. I'm saying that an oral component is very common in
18 assessment centers, yes.
19 Q. My question, Dr. Barrett, is, was the oral component of the
20 1993 sergeants promotional test an assessment center?
21 A. Well, you see you are using the term in a slightly unusual
22 way. Assessment center is a generic term, okay. And in an
23 assessment center you might have a number of different types of
24 testing processes. One might be an oral component. One might
25 be a written component. One might be an in-basket. And the
903
1 most common part of an assessment center is an in-basket.
2 So you use that terminology. I find it difficult
3 for -- to answer.
4 Q. Other than the articles you pointed us to or the books,
5 articles and books you pointed us to about assessment centers,
6 is there any scientific research of which you are aware that
7 test scores on the type of oral examination that you used in
8 the 1993 Chicago police sergeants promotional test relate to
9 job performance?
10 A. We didn't perform an empirical study.
11 Q. I -- that's fine, Dr. Barrett. My question is, are you
12 aware of any scientific research which indicates that test
13 scores on an oral test of the type that was used in the 1993
14 Chicago police promotional test relate to job performance?
15 A. Other than we already talked about, I'm sure there -- I
16 have given you books and articles.
17 Q. Dr. Barrett, you haven't talked about any study at all,
18 have you, that's just of an oral examination of the type that
19 was used on this exam?
20 A. I'm not sure what you are asking.
21 Q. You talked about assessment center studies, haven't you?
22 A. Yes, I have.
23 Q. You haven't talked about studies just of oral examinations,
24 have you?
25 A. Well, I can't recall. Now I shouldn't -- usually you would
904
1 not just give an oral examination by itself. I can't recall
2 that being done.
3 Now, there are -- there is something called -- which
4 is common in some jurisdictions, an oral interview board. But
5 it's not.
6 Q. Dr. Barrett, we are not talking about other jurisdictions.
7 We are not talking about oral interview boards. We are talking
8 about the type of oral examination that you told the City of
9 Chicago to use to make promotions to sergeants in 1993. With
10 respect to that particular type of test, is there any
11 scientific research that test scores on that test relate to job
12 performance?
13 A. Maybe the one I already discussed.
14 Q. You haven't discussed anything, Dr. Barrett. Is there any
15 scientific research that test scores on that particular oral
16 test relate to job performance?
17 A. We have not -- there are no empirical studies of that
18 particular test.
19 MR. FLAXMAN: Judge, could you instruct the witness to
20 directly answer my question?
21 THE COURT: I don't think he understands your question
22 because I think he's thinking of the test as being made up of
23 three parts as a combined test. I think what you are seeking
24 to ask him of is a test where there wouldn't be any test of
25 knowledge and there wouldn't be any in-basket test. The only
905
1 thing it would have is the oral test, has anybody written any
2 article about that?
3 MR. FLAXMAN: Well --
4 THE COURT: So I don't think he understands what you
5 are asking. Why don't you restate the question.
6 BY MR. FLAXMAN:
7 Q. The sergeants test that you prepared had three sub-tests,
8 is that right?
9 A. Yes.
10 Q. One was a written job knowledge test, is that right?
11 A. Yes.
12 Q. The other was the in-basket test, and the third was the
13 oral examination, is that right?
14 A. Yes.
15 Q. And scores from each of these three tests were combined
16 together to produce the final score, is that right?
17 A. That's correct.
18 Q. And then promotions were made, have been made and will be
19 made in rank order from that list, the results of three exams,
20 right?
21 A. Yes.
22 Q. Now, is it your contention that each -- that the scores on
23 each sub-tests of that test are such that higher scores on each
24 separate part mean higher job performance if promoted?
25 A. Yes.
906
1 Q. So somebody who got a 15 on the oral test, in your opinion,
2 is likely to do better than somebody who got a 13 on the oral
3 test, is that right?
4 A. There is a higher probability of success in general, yes.
5 Q. Is there any scientific research of which you are aware
6 that somebody who got a 15 on the oral test is likely to do
7 better as a sergeant than somebody who got a 13 on the oral
8 test?
9 A. Not other than what I told you about the research and
10 assessment center.
11 Q. Other than assessment center research is there any research
12 about the particular type of oral examination that you gave
13 which supports your view that somebody who had a 15 on the oral
14 examination is likely to do better as a sergeant than somebody
15 who got a 13?
16 A. We have done no specific studies on that examination.
17 MR. FLAXMAN: Judge, I think the question is clear at
18 this stage. And I don't think he is answering it. I'd like
19 you to ask him to try harder to answer the question.
20 THE COURT: Well --
21 MR. FLAXMAN: If it's not clear I will try again, but
22 I think --
23 THE COURT: No, I think you did make it clear. At
24 least it was clear to me what you were asking. And I thought
25 the answer was, he doesn't know. He hasn't done any empirical
907
1 research on pure oral tests.
2 BY MR. FLAXMAN:
3 Q. Other than empirical research on a pure oral test, and
4 other than the assessment center literature, is there any
5 research of which you are aware which supports your view of
6 somebody who gets a 15 on that type of oral test is going to do
7 better when promoted to sergeant than somebody who gets a 13?
8 A. Same question over again? I guess I can't differentiate
9 from the previous question.
10 Q. Could you answer the question?
11 A. I did. We have done no specific research on that.
12 Q. Are you aware of any specific research on that other than
13 what you may or may not have done?
14 A. No, I don't know of any specific research on one oral test
15 like that.
16 Q. Thank you.
17 And if I asked you the same question about the
18 in-basket, the particular type of in-basket that was part of
19 the sergeants promotional test, would you give me the same
20 answer, that you are not aware of any specific research to show
21 that somebody who got 60 correct on that in-basket in one hour
22 and 15 minutes is likely to be better as a sergeant than
23 somebody who got 57?
24 THE COURT: You are excluding all of the writing where
25 this is discussed in connection with assessment centers. I
908
1 don't know how you can do that, but you have done that. I
2 don't think he understands that's what you have done.
3 You are saying, you can't -- you don't want the ones
4 that do this in a context of an assessment center. You are
5 saying, you want something that's a separate article, that
6 doesn't talk about assessment centers, only talks about in-
7 basket test. Isn't that really what you are asking him?
8 Because I don't think he understands that.
9 MR. FLAXMAN: Could I have a minute, Judge?
10 THE COURT: Yes.
11 MR. FLAXMAN: To regroup?
12 (Brief pause.)
13 BY MR. FLAXMAN:
14 Q. Could I have my exhibit?
15 When you did your meta-analysis, were you trying to
16 include all of the relevant studies?
17 A. We did the meta-analysis in a really short period of time.
18 So we were not that comprehensive in terms of our
19 meta-analysis.
20 Q. Is it correct that the only studies that you considered in
21 the meta-analysis are those shown on page R-4 of your report?
22 A. Yes.
23 Q. Now --
24 THE COURT: That's page R-4?
25 MR. FLAXMAN: That's correct, Appendix R, page R-4.
909
1 BY MR. FLAXMAN:
2 Q. Is there, in fact, literature that scores on a written test
3 of job knowledge relates to job performance?
4 A. Yes.
5 Q. Is the primary source that you've relied on for that
6 assertion in preparing your work for Chicago police promotional
7 test the study by Dye, Reck & McDaniel?
8 A. At that point in time, that was the main study we relied
9 upon. Since that time I have my affidavit. I sort of go back
10 and individually review each separate study which he reviewed.
11 And I believe in my affidavit I've reviewed something like 80
12 studies, which show that job knowledge relates to job
13 performance.
14 Q. Now, do you agree that to justify use of a content-valid
15 test for ranking it must be demonstrated from empirical
16 evidence either that mastery of more difficult work behaviors
17 or that mastery of a greater scope of knowledge corresponds to
18 a greater scope of important work behavior?
19 A. No.
20 Q. Do you agree that to be content-valid the test should
21 fairly sample the information that is actually used by the
22 employee on the job?
23 A. That's generally true, yes.
24 Q. Did you make any effort in preparing the test to determine
25 whether the level of difficulty of the test items corresponds
910
1 to the level of difficulty of the knowledge that's used in the
2 work behavior?
3 A. Yes.
4 Q. When you talked about challenges to the test, the people
5 taking the test weren't given the test when they left, were
6 they?
7 A. No.
8 Q. In other words, to make a challenge you have to identify
9 the particular question you were challenging, is that right?
10 A. Yes.
11 Q. And you have to explain why you are challenging it, is that
12 right?
13 A. Yes.
14 Q. Do you have the actual answer sheets for the written test?
15 A. No, I think the actual answer sheets are maintained by
16 Arthur Andersen.
17 Q. Are you familiar with the questions and answers of the
18 Equal Employment Opportunity Commission on the uniform employee
19 selection guidelines?
20 A. In general, yes.
21 Q. Have you ever reviewed them?
22 A. Yes.
23 Q. Have you ever disagreed with any of those questions and
24 answers?
25 A. I probably have.
911
1 Q. Well, do you disagree -- is there -- do you recall if there
2 is a particular question about rank order selection?
3 A. There probably is.
4 Q. Now let me show you what's been marked as Plaintiffs'
5 Exhibit 84 and ask you to look at --
6 MS. GLINK: Your Honor, I'd like to lay a foundation
7 that the document that Mr. Flaxman -- the relevancy of this
8 document and what it is. And I just think he needs to
9 establish more what this means by question and answer. I
10 don't --
11 MR. FLAXMAN: I think I will do that when I show him
12 the document.
13 THE COURT: I will again overrule the objection
14 subject to subsequent motion to strike.
15 BY MR. FLAXMAN:
16 Q. Could you tell us, have you ever seen Plaintiffs'
17 Exhibit 84 before in any form?
18 A. Yes.
19 Q. What -- can you tell us what it is?
20 A. This is titled, "The Equal Employment Opportunity
21 Commission Uniform Employee Selection Guidelines,
22 Interpretation And Clarification."
23 Q. And have you read these?
24 A. Yes.
25 Q. And do these -- and clarify and interpret but not modify
912
1 the uniform guidelines on employee selection procedures?
2 A. You are asking the first sentence? Yes, that's correct.
3 That's the first sentence.
4 Q. Do you agree with Question and Answer 39, "Can a user rely
5 upon written or oral assertions of validity instead of evidence
6 of validity?" And the answer --
7 THE COURT: Are we talking about Question 39 that
8 appears on page 4199?
9 MR. FLAXMAN: That's correct.
10 THE COURT: Okay.
11 MS. GLINK: 38?
12 MR. FLAXMAN: 38, I'm sorry. 38. Let me reask the
13 question.
14 BY MR. FLAXMAN:
15 Q. Do you agree with Question and Answer 38, "Question: Can a
16 user rely upon written or oral assertions of validity instead
17 of evidence of validity?" The answer is, no, with an
18 explanation.
19 A. Can a user, it says, and I don't have any real problem, I
20 don't believe, with that statement.
21 Q. Okay. Let me ask you to look at Question and Answer 62.
22 Question 62, which is at page 4204, is, "Under what
23 circumstances may a selection procedure be used for ranking?"
24 A. You want me to read it?
25 Q. I'd like you to read it to yourself and tell us if you
913
1 agree with that answer or disagree with that answer.
2 Have you had a chance to finish reading it?
3 A. Yes, I have.
4 Q. Do you agree or disagree with the answer to Question 62?
5 A. Well, in general I would agree with the answer to 62.
6 Q. Now, do you agree with the proposition that the scientific
7 method uses empirical data to determine if one fact or another
8 is true?
9 A. I'm sorry. Say that again.
10 Q. Do you agree with the proposition that the scientific
11 method uses empirical data to determine if one fact or another
12 is true?
13 A. There is always this question with how you define empirical
14 data. So it's a little hard to answer.
15 Q. Well, do you -- are you unable to answer my question
16 whether you agree or disagree with it?
17 A. I would agree in general, in terms of that sort of
18 statement as a generalization.
19 Q. Well, have you ever used that phrase, the scientific method
20 uses empirical data to determine if one fact or another is
21 true?
22 A. Yes, I might have used that statement.
23 Q. Well, do you remember writing an article in 1992 called
24 "Clarifying construct validity, definitions, processes and
25 models," published in Human Performance where at page 27 you
914
1 wrote, "The scientific method uses empirical data to determine
2 if one fact or another is true"?
3 A. No, I don't recall that exact phrase.
4 Q. Let me show you what's been marked as Plaintiffs'
5 Exhibit 85, ask you first, is this a copy of our article?
6 A. Yes, it is.
7 Q. Let me ask you to look at page 27 and see if you can find
8 the material I was quoting from.
9 A. (No response.)
10 Q. And it's under the heading, "Construct validation in the
11 law."
12 A. Yes, I would read the section. "Regrettably, personnel
13 psychologists far too often appear to be talking the viewpoint
14 that the law should dictate professional practice. As Lerner
15 1980 pointed out, the legal fact is merely what a judge or jury
16 finds to be true. The law should not be equated with a method
17 of seeking scientific truth. Rebell 1989. The scientific
18 method uses empirical data to determine if one fact or another
19 is true."
20 I can go on and read the end, or is that enough?
21 Q. Dr. Barrett, my question is, you wrote that sentence, "The
22 scientific method uses empirical data to determine if one fact
23 or another is true"?
24 A. I wrote the sentence above, too. So you can't take the
25 sentence out of context.
915
1 Q. Well, okay. My question, Dr. Barrett, is there empirical
2 data to determine if higher scores on the 1973 sergeants
3 promotional test mean higher performance?
4 MS. GLINK: Your Honor, I am just going to interpose
5 an objection at this point. We have gone through this before
6 the break, and I made the same point. We have gone through
7 this. Dr. Barrett testified over and over again that he has
8 empirical evidence and not a criteria related study and that no
9 criteria related study has been conducted.
10 I think that that has been established at this point.
11 THE COURT: My understanding of it is, you don't have
12 to have empirical data of the very institution or very persons
13 that are being tested. It is empirical data that is
14 scientifically applicable to the type of testing procedure
15 that's being used. So that's why you have statements made that
16 in content-validity test you don't need empirical data to
17 support the validity of the test.
18 MR. FLAXMAN: That's certainly what his testimony has
19 been. I don't think your Honor is making a finding that's what
20 the --
21 THE COURT: No, no. I thought that's in the EEOC's
22 uniform guidelines.
23 MR. FLAXMAN: I think we need to --
24 THE COURT: Or am I getting all confabulated?
25 MR. FLAXMAN: If that's the way we are coming out,
916
1 then we lost the case and I think we won the case. So I think
2 there is -- there is a communications problem.
3 THE COURT: I don't have before me the guidelines on
4 contents validity. But I thought that there was not a need,
5 that there was a specific sentence on that.
6 MR. FLAXMAN: What I think --
7 THE COURT: Am I mixing that up?
8 MS. GLINK: We don't think so.
9 MR. FLAXMAN: This is what is in dispute in the case.
10 I think if you come out that way --
11 THE COURT: That's not my coming out. I am trying to
12 regurgitate what I thought I read. But I may have read it
13 someplace else, and I have gotten it intermingled now.
14 MR. FLAXMAN: I think --
15 THE COURT: This is a field that is not easy to keep
16 everything in nice little compartments, I think. So I will
17 stand corrected if I am in error.
18 But anyway, you are reading empirical data meaning
19 that you have to make the study of the actual institution
20 that's being tested.
21 MR. FLAXMAN: That's --
22 THE COURT: Do you have a basis for --
23 MR. FLAXMAN: That's what --
24 THE COURT: -- that's what is meant?
25 MR. FLAXMAN: That's what the cases have held and
917
1 that's what --
2 THE COURT: It isn't empirical data of similar
3 situations; it has to be the exact institution?
4 MR. FLAXMAN: Or something very, very close.
5 THE COURT: You have got to run a complete study of
6 the Chicago Police Department before you could have a test.
7 MR. FLAXMAN: If you are going to give the test to
8 make rank order selection, you have to have some reason to
9 believe it relates to this particular job. That's what the
10 standard was in --
11 THE COURT: Not some reason, it's something else. You
12 have to run an actual empirical study of the actual police
13 department that's involved.
14 MR. FLAXMAN: If you are going to make rank order
15 selection, that's what -- that's the standard that Judge
16 Marshall applied.
17 MS. GLINK: We just, for the record, like to interpose
18 our objection to his characterization of what the law requires,
19 what the the guidelines require.
20 THE COURT: Is this going to be in the --
21 MS. GLINK: Yes, it will.
22 THE COURT: -- findings and conclusions of law?
23 MR. FLAXMAN: It better be.
24 THE COURT: You are going to say that it's already
25 settled and they are going to say it's already settled. And
918
1 you are going to come to opposite conclusions.
2 MS. GLINK: That's right, your Honor.
3 THE COURT: Sounds like a typical lawsuit. All right.
4 Well, in any event, we are at 3:15. I don't mean to
5 cut you short on your cross-examination.
6 MR. FLAXMAN: I think if -- I think I am done. I have
7 no further questions.
8 THE COURT: All right.
9 MS. GLINK: Can we take a short break? We now speak
10 with our --
11 MS. PAPUSHKEWYCH: And, your Honor, I think we are
12 getting a little bit closer on our exhibits in terms of Mr.
13 Flaxman.
14 THE COURT: That will be helpful.
15 (Brief recess.)
16 MS. GLINK: Your Honor, we are missing the witness for
17 a moment.
18 THE COURT: That's fine. While we are waiting for
19 him, I just want to say that I re-read to improve my faulty
20 recollection of the part 1607 of the Equal Employment
21 Opportunity Commission's regs and uniform guidelines on
22 employee selection procedures dated 1978, and particularly the
23 reference being to the 1607.5 and 1607.14. And my memory is
24 not as good as I thought it was.
25 About how long would you anticipate it's going to take
919
1 now for redirect?
2 MS. PAPUSHKEWYCH: Mr. Flaxman I believe wanted to --
3 MR. FLAXMAN: I thought I did, but --
4 THE COURT: Do you have more questions?
5 MR. FLAXMAN: I won't do that. They can --
6 MS. PAPUSHKEWYCH: Okay.
7 MS. GLINK: We have just a few.
8 THE COURT: Okay.
9 MS. PAPUSHKEWYCH: We have just a few.
10 THE COURT: Roughly half hour or something?
11 MS. PAPUSHKEWYCH: Not even that.
12 THE COURT: I see. All right.
13 MS. PAPUSHKEWYCH: We have tried to locate our next
14 witness. Hopefully he will be here before too long.
15 THE COURT: All right. We are all set here. All
16 right. We are ready for redirect now, I believe.
17 Tomorrow at 4:30 we have a hearing on Les Cut the
18 Taxes, Golden versus the City of Chicago, Board of Election
19 Commissioners, I guess.
20 THE LAW CLERK: Cook County Officers Electoral.
21 THE COURT: Cook County Officers Electoral Board,
22 election hearing. And I will be -- we set that for 4:30. I
23 have to rule tomorrow so that there is still an opportunity to
24 try to get on the ballot. All right.
25 REDIRECT EXAMINATION
920
1 BY MS. GLINK:
2 Q. Dr. Barrett, I'd like to call your attention to the
3 technical report that you prepared, which is Defendant's
4 Exhibit D. And I specifically would like to call your
5 attention to page 69 of that report.
6 A. Yes.
7 Q. Can you read for me the paragraph that is directly under
8 the heading, "Chicago police sergeant promotion process"?
9 A. "The following section describes relevant research on the
10 methods chosen for Chicago police sergeant promotional process.
11 Specifically the written job knowledge examination and two
12 assessment center exercises, the in-basket simulation and oral
13 briefing exercise were selected to promote candidates to
14 Chicago police sergeant. A literature review is conducted on
15 each to determine the best method."
16 Q. When you say, the best method, what do you mean by that?
17 A. The method to construct these types of examinations.
18 Q. Can you describe for me in general, you don't have to read
19 through it, what follows that paragraph? And this is under the
20 literature review section of your report, is that correct, Dr.
21 Barrett?
22 A. Yes, on this issue.
23 What follows on page 69 is a section on the written
24 job knowledge examination, which reviews many studies
25 indicating the relevance of job knowledge tests, and the
921
1 criteria of related studies which have been conducted with
2 those types of tests.
3 On page 72, I discuss assessment center exercises, and
4 I discuss the assessment center literature. And then on
5 page 73 I talk about the two most common exercises, the
6 in-basket and the oral exercise.
7 Q. Let me stop you there. Now, when you say, the two most
8 common exercises, do you mean the two most common exercises
9 that are generally part of assessment centers?
10 A. Yes, I do.
11 Q. And in your opinion, can you give me a definition of
12 assessment center?
13 A. It's a -- it's a set of exercises or tests used for
14 selection of promotion purposes. It can consist of a variety
15 of different types of exercises, and it is usually defined as
16 more than one type of exercise or test being used in
17 combination.
18 Q. And you consider both in-basket and simulation and oral
19 briefing -- do you consider the two -- these two components of
20 your examination, oral briefing and in-basket simulation, to be
21 assessment center exercises?
22 A. Yes.
23 Q. And does this literature that's set forth on pages 69 for
24 the written job knowledge test, beginning with the written job
25 knowledge test, and then on page 72 with assessment centers --
922
1 does this literature support the use of these examinations, in
2 your opinion, for this examination for police sergeant?
3 A. Yes.
4 Q. And why is that?
5 A. There is ample evidence here in terms of criteria related
6 studies and other types of evidence indicating that these types
7 of exercises are effective in selecting supervisors.
8 Q. Did any of the assessment center studies that you looked at
9 that are included in here directly deal with safety forces?
10 A. There are a few which does deal with safety forces.
11 Q. Dr. Barrett, does the fact that an examination has adverse
12 impact mean that it's not content valid?
13 A. No.
14 Q. And if a test does not have adverse impact, would that mean
15 it is content valid?
16 A. No.
17 MS. GLINK: We have nothing further.
18 THE COURT: All right.
19 Any additional cross now?
20 MR. FLAXMAN: Yes, Judge.
21 RECROSS-EXAMINATION
22 BY MR. FLAXMAN:
23 Q. You told us on redirect that as part of your work in
24 preparing the 1993 Chicago police sergeants test, a literature
25 review was conducted on each, and I think each referred to
923
1 written job knowledge examination, in-basket simulation and
2 oral briefing exercise, to determine the best methods, is that
3 right?
4 A. Yes.
5 Q. And by best methods, did you mean the best way to do an
6 in-basket simulation?
7 A. Well, that's part of what is contained in the report. But
8 it's more basically the evidence for in-basket being valid in a
9 variety of situations.
10 Q. And all of the literature that you reviewed about an
11 in-basket being valid in these situations is set out in this
12 report pages -- starting at page 69 and ending at page 77, is
13 that right?
14 A. There may be more in the report. That would satisfy the --
15 that's concentrated, yes.
16 Q. After review of this existing relevant research and
17 literature, you ended up using the same type of in-basket that
18 you had used for the Akron police sergeants, is that right?
19 A. That's correct.
20 Q. And the same type of in-basket you used for the Akron fire
21 lieutenants, is that right?
22 A. The same type, yes.
23 Q. After this review of relevant research and literature, you
24 ended up using the same type of oral interview that you had
25 used for Akron police sergeants?
924
1 A. Same type of format, yes.
2 Q. Page 70 of your report, in the one, two, three, fourth line
3 down, is the phrase, corrected mean validity. Do you see that?
4 A. On page 70, yes, it says, "Written job knowledge tests have
5 been shown to have substantial validity. In a meta-analysis of
6 502 validity coefficients, Dye, Reck & McDaniel, 1993, found a
7 corrected mean validity of .45 for studies predicting job
8 performance."
9 Q. What does corrected mean -- validity mean?
10 A. That is a -- in this context it refers to a meta-analysis
11 procedure or in the area of what's known in psychology
12 specifically when it's applied to validity coefficients, it's
13 called validity generalization. And the corrections are of
14 about 11 types.
15 No. 1 would be the correction based upon the sample
16 size of the many different studies being used. The second
17 would be a correction based upon the reliability of the test or
18 predictor. The third correction would be based upon the
19 reliability of the criterion or job performance measure.
20 A fourth correction would be in terms of restriction
21 of range on the predictor or the test. A fifth correction
22 would be in terms of restriction of range of the dependent
23 variable criterion or more specifically the job performance
24 measure.
25 A sixth correction would be based upon the
925
1 imperfection of the test in measuring a construct of interest.
2 The seventh would be a correction of the dependent variable,
3 the criterion or job performance variable in terms of its
4 imperfections measuring the construct of relevance.
5 You want me to continue?
6 Q. Is the Dye, Reck & McDaniel study of something -- a study
7 of validity generalization?
8 A. It's based upon a meta-analysis, and in our field we call
9 meta-analysis, we use correlations between a test score and job
10 performance. It's then labeled validity generalization.
11 Q. Let me show you what's been marked as Plaintiffs' Exhibit
12 27. Is Plaintiffs' Exhibit 27 a copy of this Dye, Reck &
13 McDaniel article?
14 A. No.
15 Q. What is Plaintiffs' Exhibit 27?
16 A. This is a manuscript of the article. This is not the
17 actual article.
18 Q. Does it have the same words as the actual article?
19 A. I can't tell.
20 Q. Well, does Barrett & Associates have a fax machine?
21 A. Yes, it does.
22 Q. And on June 22, 1995, at 1:27 p.m. did Barrett & Associates
23 fax a copy of this article to the City of Chicago?
24 A. It appears they did.
25 Q. Do you know if Barrett & Associates ever faxed a copy of
926
1 the actual article to the City of Chicago?
2 A. I don't know if they did or not.
3 Q. Have you ever seen a copy of the actual article?
4 A. Yes, I have.
5 Q. Do you know how it's different from what is before you as
6 Plaintiffs' Exhibit 27?
7 A. As I have said, I have not reviewed and compared the two.
8 Q. Well --
9 THE COURT: Is the article in the International
10 Journal of Selection and Assessment?
11 THE WITNESS: Yes, it is.
12 THE COURT: On the first page.
13 THE WITNESS: It's been published there. It's now a
14 published article in that journal.
15 BY MR. FLAXMAN:
16 Q. Well, have you ever seen a preprint of an article that's in
17 press?
18 A. This is not a preprint.
19 Q. What is this?
20 A. This is their -- I assume, their final manuscript they sent
21 in to be published.
22 Q. And this is what you gave to the city on June 22, 1995?
23 A. I assume one of my associates faxed it on that day, yes.
24 Q. Well, is this the same study that was subsequently printed
25 in the International Journal of Selection and Assessment that's
927
1 referred to at your report at page 70?
2 A. I assume it would be very similar or the same to this
3 manuscript. I have no reason to believe it's not.
4 Q. Okay. Well, let me ask you to look at page 12 of this
5 exhibit, Exhibit 27. Have you ever seen this table before?
6 A. Yes, it looks very similar to the table which has been
7 published.
8 Q. Well, "total N," do you see that column heading?
9 A. Yes.
10 Q. Does that mean the total number?
11 A. Yes.
12 Q. And "total R's" -- excuse me -- "number R's," what does
13 that mean?
14 A. I'm sorry. Where are we now? Number -- yes, number of
15 correlations, it says.
16 THE COURT: R means correlation?
17 THE WITNESS: Yes.
18 BY MR. FLAXMAN:
19 Q. And then the next column is "the mean R"?
20 A. Yes.
21 Q. And the next column after that, is that a Greek letter?
22 A. Yes, that's the corrected correlation.
23 Q. Is the corrected correlation twice the correlation?
24 A. That's what they had found.
25 Q. Do you know how they determined that they should double the
928
1 correlation?
2 A. I thought I just went through at least six, seven or eight
3 of the corrections that they make --
4 Q. To --
5 A. -- in terms of the usual meta-analysis or generalization
6 study.
7 Q. Well, do they explain in their report the basis for
8 doubling the correlation?
9 A. I assume that they do discuss the meta-analysis procedure
10 somewhere in the report. I can look and see for you.
11 They say they did a meta-analysis on page 6.
12 Q. Have you found anything in the paper, Plaintiffs' Exhibit
13 27, that explains why the correlation was doubled?
14 A. I just said, they said they did a meta-analysis. They
15 said, this is what they did.
16 Q. But does the meta-analysis explain why the correlation --
17 why the corrected validity is twice what the correlation was in
18 the column 4?
19 A. Well, you have to -- I thought I went through at least six
20 or seven of the corrections which are made in the
21 meta-analysis.
22 Q. Does this report explain which of those six or seven
23 rationales for increasing the correlation was relied on?
24 A. I'm not -- I haven't read the total report recently, but I
25 assume that they did standard meta-analysis, standard
929
1 technique.
2 Q. Standard meta-analysis involves doubling the correlation,
3 is that what you tell us?
4 A. No. All I am saying is that meta-analysis is a process and
5 as I mentioned, today it's used in drug studies. It's used in
6 many places, and that it's a standard technique which is used
7 in the field to do exactly what they did do.
8 Q. When you wrote your report, Defendant's Exhibit D, did you
9 rely on the Dye, Reck & McDaniel study that's cited in that
10 report?
11 A. This was one study which was cited in the course which took
12 into account the findings.
13 Q. The Dye, Reck & McDaniel study, does that indicate to
14 you -- does that -- back in 1994, when you completed
15 Defendant's Exhibit D, did you know what studies had been
16 relied on in the Dye, Reck & McDaniel article?
17 A. I don't know the time sequence. I do know that we started
18 to collect the actual underlying data at some point in time.
19 And I believe I have in my affidavit, my review so far of 80 of
20 those articles which supports their position in terms of
21 showing in each case that the job knowledge test relates to job
22 performance.
23 Q. The Dye, Reck & McDaniel article doesn't identify which
24 studies it relies on, does it?
25 A. No, it does not.
930
1 Q. Now, the Dye Reck & McDaniel article -- or the studies that
2 are used in the Dye, Reck & McDaniel article presumably had
3 some kind of measure of performance in those studies, is that
4 right?
5 A. Yes.
6 Q. And there was -- is a correlation of success on a written
7 test and performance on the job, is that right?
8 A. That's correct.
9 Q. Now, you told us, I think, that for a variety of reasons
10 it's impractical to devise a measure of performance for Chicago
11 police officers, is that right?
12 A. Yes.
13 Q. So by using this validity generalization and meta-analysis,
14 is it correct that what you're able to do is avoid any need to
15 measure actual on-the-job performance of police officers by
16 relying on performance of people in other professions and how
17 they do on written tests?
18 A. I don't recall saying that.
19 Q. Well, I'm not asking if you said it, Dr. Barrett. But
20 isn't that the effect of relying on the Dye, Reck & McDaniel
21 study?
22 A. No, it's not.
23 Q. Well, is the Dye, Reck & McDaniel study a compilation of
24 studies that compared performance on written tests with
25 performance on the job?
931
1 A. Yes.
2 Q. And based on the results of the Dye, Reck & McDaniel study,
3 you have formed the opinion that people who do better on
4 written job knowledge tests do better on the job, is that
5 right?
6 A. Well, that is one piece of evidence. As I said before,
7 just for example --
8 Q. Could you just answer my question, Dr. Barrett, and spare
9 us the speeches? It's getting late.
10 Is that correct, that you relied on the Dye, Reck &
11 McDaniel study as part of your belief that people who do better
12 on written tests will do better on the job?
13 A. I use that to -- as part of the evidence that job knowledge
14 tests do relate to job performance.
15 Q. Now, why is it feasible or was it feasible to have measures
16 of job performance for all of those 3,653 -- '528 people who
17 were involved in the Dye, Reck & McDaniel study, but you
18 couldn't have a measure of job performance for Chicago police
19 officers?
20 A. As I explained before, we have a situation in safety forces
21 throughout the United States, which makes it very difficult to
22 obtain a good reliable measure of job performance from the
23 supervisors.
24 Q. So --
25 A. There is -- the supervisors are reluctant to give
932
1 performance appraisal measures when they know or believe that
2 it may result in their findings being revealed, result in court
3 action. There is a variety of reasons I went through before
4 why there is a feasibility issue now which was -- may not have
5 been true in the past.
6 Q. So you're telling us that for safety forces you can't
7 measure how well somebody is doing on the job, is that right?
8 A. I'm saying, to conduct a validation study -- if that was
9 your question?
10 Q. No, my question is that if you wanted to measure job
11 performance, you can't do that for safety forces; is that your
12 opinion?
13 A. I am saying it's very difficult to measure job performance
14 for safety forces in a way which can be used for criteria-
15 related study.
16 Q. And you're telling us that it's not very difficult to
17 develop valid measures of job performance for whatever the jobs
18 were that were involved in the Dye, Reck & McDaniel studies, is
19 that right?
20 A. Yes, those -- many of those studies were performed -- were
21 conducted a number of years ago and in situations where there
22 is not the consistent constant litigation that we have in
23 safety force.
24 Q. Some of those studies were of jobs where -- like factory
25 workers. You could measure how many widgets somebody produced
933
1 in an hour, is that right?
2 A. Sure.
3 Q. That's different than the job of a police sergeant, isn't
4 it?
5 A. Yes, it is.
6 Q. And some of those studies that were relied on in Dye, Reck
7 & McDaniel were students in school, isn't that right?
8 A. I don't recall students in school, I guess.
9 Q. Well, was there a study of why some students perform well
10 and others perform poorly on SAT math items?
11 A. There could have been, yes.
12 Q. Is that the kind of information -- is that the kind of
13 study that you rely on in your opinion that police officers who
14 do better on a test of written job -- a written test of job
15 knowledge will do better when promoted?
16 A. No, it wouldn't be that specific study. I wouldn't rely on
17 that study if you say it's just college students.
18 Q. Well, when you submitted an affidavit in this case, did you
19 list 82 studies to support your contention that people who do
20 better on tests of job knowledge do better on the job?
21 A. Yes, I started to review the Dye, Reck & McDaniel
22 literature.
23 Q. And was one of those studies an article by Burns and
24 Takahira, T-a-k-a-h-i-r-a, 1994, and "Contemporary educational
25 psychology, why some students perform well and others perform
934
1 poorly on SAT math items"?
2 A. If it's listed there, it was in that review process, yes.
3 Q. And that's the kind of data that you rely on for making
4 judgments about Chicago police officers?
5 A. That's one study.
6 Q. Okay. Is another study that you relied on for your
7 judgment about Chicago police officers and job knowledge a
8 study about prediction of achievement in radio training school?
9 A. Again if it's listed there, it's probably an Army study if
10 I would guess.
11 Q. Well, is another study that you relied on one about
12 predicting success in machine bookkeeping?
13 A. Again, if it's listed there, it would be one -- one of the
14 articles which was contained in Dye, Reck & McDaniel.
15 Q. And another study was one about a selection battery for
16 bake shop managers?
17 A. Yes, if it's listed there, it would be one of the articles
18 we reviewed.
19 Q. And several of the studies that you relied on were
20 anonymous, weren't they?
21 A. Yes, some are published without an author, that is correct.
22 Q. Was there also a study about measuring performance criteria
23 of bank tellers?
24 A. I think there was one like that.
25 Q. As you sit here now, do you think it's possible to devise
935
1 some objective criteria to measure the performance of a bank
2 teller?
3 A. Yes.
4 Q. Now, by looking at these datas from other studies and doing
5 a meta-analysis, does that avoid having to come up with a valid
6 measure of performance for the particular job that you are
7 applying the results of the meta-analysis to?
8 A. The two are quite separate.
9 Q. Well, maybe my question wasn't clear. Dr. Barrett, by
10 using the meta-analysis you are able to come up with a
11 generalization that if you -- the more job knowledge you have,
12 the better your performance on the job will be, is that
13 correct?
14 A. Are you referring now to the Dye, Reck & McDaniel report?
15 Q. That's correct.
16 A. That was the conclusion they reached, yes.
17 Q. That's in accordance with your general opinion about
18 general tests of job knowledge, is that correct?
19 A. Yes.
20 Q. And by doing a meta-analysis, you can demonstrate that in
21 some manner, is that correct?
22 A. Well, there are many -- I don't want to confuse you about
23 this. Be clear there are many different ways one can do this.
24 For example, Professor Jencks in his book, "Who Gets Ahead,"
25 does not use meta-analysis. He comes to the same conclusion I
936
1 come to and he uses job knowledge test achievement.
2 Q. Now --
3 A. That finds that --
4 Q. Now, you relied on the Dye, Reck & McDaniel article, didn't
5 you?
6 A. It's one piece of evidence we did rely upon, yes.
7 Q. And you relied on it on page 70 of your report, is that
8 correct?
9 A. It's one of the studies we cited, yes.
10 Q. Okay. And by citing this study, what this study did --
11 this study concluded that job knowledge related to job
12 performance, is that right?
13 A. Well, even more specific than that. It pointed out that
14 when you have a test which is specific to the actual job, which
15 really tests knowledge, which is -- corresponds very closely to
16 the job knowledge, you have even a higher correlation.
17 Q. Well, so that the Dye, Reck & McDaniel study, as you read
18 it then, shows that job-specific knowledge tests are correlated
19 with success on the job, is that right?
20 A. That's correct.
21 Q. And you have generalized from the results of the Dye, Reck
22 & McDaniel study to the Chicago Police Department, is that
23 right?
24 A. That's one piece of evidence we've used.
25 Q. Do you understand my question?
937
1 A. I thought I did.
2 Q. Have you generalized from the results of the Dye, Reck &
3 McDaniel study that more knowledge on the job means better
4 performance -- that better performance on the job to apply that
5 to the Chicago Police Department?
6 MS. GLINK: Your Honor, I object to the question. He
7 answered it the last time and the time before that. I don't
8 think he has to continue to answer the same question.
9 THE COURT: Well, there seems to be a difficulty in
10 the understanding of it. I will overrule the objection, permit
11 him to answer now.
12 BY THE WITNESS:
13 A. It's one piece of evidence that we did use to support our
14 position.
15 BY MR. FLAXMAN:
16 Q. And your position is that more job knowledge means better
17 performance on the job, is that right?
18 A. Yes.
19 Q. And that's based on a validity generalization from other
20 studies, is that right?
21 A. Not totally. As I said, there is a variety of evidence.
22 We can put even more evidence in. We can put in "Who Gets
23 Ahead" by Professor Jencks to support the same proposition.
24 Q. When you did your report, Defendant's Exhibit D, as in dog,
25 you didn't mention Professor Jencks, did you?
938
1 A. No, his work is in sociology typically. I could have put
2 it in. I probably was remiss not putting it in.
3 Q. You could have put in Shakespeare, couldn't you, doctor?
4 A. No, I could not have put in Shakespeare for that
5 proposition.
6 Q. You didn't put in Shakespeare, did you?
7 A. As I recall, I did not put in Shakespeare.
8 Q. And you didn't put in Professor Jencks, did you?
9 A. No, I did not.
10 Q. You put in Dye, Reck & McDaniel, isn't that right?
11 A. That's correct.
12 Q. And you relied on Dye, Reck & McDaniel's meta-analysis for
13 your generalization that job knowledge is related to
14 performance on the job?
15 A. That's one piece of evidence we did use.
16 Q. And that was a significant piece of evidence, isn't that
17 right?
18 A. Well, I would say that it's the largest study putting all
19 material together, yes. It's a large study.
20 MR. FLAXMAN: Thank you. I have nothing further.
21 MS. GLINK: No redirect, your Honor.
22 THE COURT: All right. Sir, that, believe it or not,
23 completes your testimony. You are excused.
24 THE WITNESS: Thank you.
25 THE COURT: And there is no snow, and the airplanes
939
1 are flying.
2 (Witness excused.)
3 THE COURT: We have 20 minutes, if somebody can be put
4 on as a live witness?
5 MS. PAPUSHKEWYCH: We can, Commander DeLopez.
6 THE COURT: I know that you previously testified, but
7 we will place you under oath again anyway.
8 (Witness sworn.)
9 MR. FLAXMAN: Judge, I have a plaintiff sitting with
10 me at counsel table. I'd like him to have a look at the
11 written test questions and advise me. If he agrees to sign the
12 protective order, can he do --
13 THE COURT: Yes.
14 MS. PAPUSHKEWYCH: Certainly.
15 THE COURT: Absolutely.
16 MS. PAPUSHKEWYCH: I will remove the material, your
17 Honor, from the previous witness.
18 THE COURT: I guess your direct testimony was cut off,
19 is that right?
20 MS. PAPUSHKEWYCH: That's correct.
21 THE COURT: Or wasn't completed.
22 MS. PAPUSHKEWYCH: That's correct.
23 JOSEPH A. DeLOPEZ, DEFENDANT'S WITNESS, DULY SWORN
24 DIRECT EXAMINATION (Resumed)
25 BY MS. PAPUSHKEWYCH:
940
1 Q. I believe we were on what has been marked as Plaintiffs'
2 Exhibit --
3 MS. PAPUSHKEWYCH: Is it 55, Ken, question 1?
4 MR. FLAXMAN: Question 1 is 55.
5 MS. PAPUSHKEWYCH: 55, I stand corrected.
6 BY MS. PAPUSHKEWYCH:
7 Q. I will show you what's been marked as Plaintiffs'
8 Exhibit 55, and will direct you to Question 111, which is where
9 I believe we stopped on Friday.
10 A. Thank you.
11 Q. Will you take an opportunity to review the question,
12 please?
13 Have you had a chance to review it?
14 A. Yes, I have.
15 Q. In Question 111, does the question identify who is seeking
16 the charge?
17 A. No, it doesn't.
18 Q. Could you describe what type of information is being sought
19 by the question?
20 A. The question itself seeks to identify if someone taking
21 this test or reading this question could identify the
22 appropriate charge to be placed against the individual
23 referenced here committing the certain offense, based upon the
24 elements that are stated here.
25 Q. And is the information contained in this question the type
941
1 of knowledge a sergeant needs to know for his job?
2 A. Yes.
3 Q. Why is that?
4 A. To assure appropriateness of charging certainly, to ensure
5 protection of constitutional rights for a potential arrestee,
6 and for coordination of reporting purposes and for charging
7 purposes and for presentation of that evidence potentially to a
8 watch commander or state's attorney for formal charging.
9 Q. And do you see on that form where the correct answer is
10 shown as being A?
11 A. Yes, I do.
12 Q. And is that your understanding as to what the correct
13 answer to this question would be?
14 A. Yes.
15 Q. And what are the consequences, if any, of an individual,
16 let me make that more specific, a sergeant believing that E is
17 the correct answer?
18 A. That would probably lead to wrongful arrest of an
19 individual and depravation of rights of that individual.
20 Ultimately besides the depravation of rights, potentially civil
21 action against the sergeant and the city.
22 Q. Now, does the correct answer to this question depend on who
23 within the Chicago Police Department is seeking approval of the
24 charge?
25 A. No, it doesn't.
942
1 Q. Does the answer to this question depend on whether it's a
2 police officer or a sergeant who is being asked this question?
3 A. No.
4 Q. Does the answer to this question depend on whether you are
5 a field or a desk sergeant?
6 A. No, it doesn't.
7 Q. Or a rapid response sergeant?
8 A. No.
9 Q. Could you turn to Question 117, please?
10 THE COURT: Could I -- I am expressing my ignorance
11 here, but I don't know what t-a-s-a-r means.
12 BY MS. PAPUSHKEWYCH:
13 Q. Commander, can you help us out?
14 A. Yes, a Tasar weapon is one which shoots one or two barbs
15 attached to a wire that remains -- the wire remains attached to
16 the device. The device transmits an electrical charge through
17 that wire into the barb. It's not comfortable.
18 THE COURT: I have never seen the word before.
19 BY MS. PAPUSHKEWYCH:
20 Q. Turn to question --
21 THE COURT: I think I know what to stay away from.
22 All right. You may proceed.
23 BY MS. PAPUSHKEWYCH:
24 Q. Question 117, please. Please review that.
25 A. I'm ready.
943
1 Q. Does this question identify who is seeking to charge the
2 suspect?
3 A. No, it doesn't.
4 Q. What information is being sought by this question?
5 A. Information as to what must occur in order to charge a
6 suspect with a particular type of an offense.
7 Q. And what type of offense in terms of classification is
8 involved in Question 117?
9 A. Well, this is a forcible felony. Do you want me to
10 identify the offense?
11 Q. No, that's sufficient. Thank you.
12 Is the information contained in this question the type
13 of knowledge a sergeant needs to know?
14 A. Yes.
15 Q. And why is that?
16 A. As I previously stated, the potential there for possibly
17 inappropriate charging or charging someone who should not be
18 charged with an offense, again the protections of the rights of
19 an individuals, and ultimately for proper reporting, proper
20 documentation, proper presentation of that case for approval of
21 formal charges.
22 Q. Does the answer to this question depend on who within the
23 Chicago Police Department is seeking approval of a charge?
24 A. No.
25 Q. Does the answer to this question depend on whether you are
944
1 a field or a sergeant -- desk sergeant?
2 A. No.
3 Q. Does the answer to this question depend on whether it's a
4 police officer or a sergeant who is being asked the question?
5 A. No, it doesn't.
6 Q. Is the correct answer E?
7 A. Yes, it is.
8 Q. Turn to Question 120, please. Please take a moment to
9 review it.
10 A. Right.
11 Q. Have you had a chance --
12 A. Yes.
13 Q. Who is seeking approval of the charges in this instance?
14 A. The arresting officer.
15 Q. And would the sergeant have any role in that process?
16 A. Yes, for a very -- probably.
17 Q. And what role would that be, if any?
18 A. The sergeant would be serving in an advisory capacity,
19 supervisory capacity, in a directing -- have a directing role
20 also.
21 Q. Is the information contained in this question the type of
22 knowledge a sergeant needs to know?
23 A. Yes.
24 Q. And why is that?
25 A. For differentiation between appropriate charges, for
945
1 determination if in fact an individual should be arrested and
2 should be charged with a certain offense or charges should be
3 sought against that person, for proper evidence gathering, for
4 proper documentation, for proper seeking of witnesses and other
5 evidence which might contribute to the successful prosecution
6 of that case.
7 Q. Now, does the answer to this question depend on who within
8 the police department is seeking approval of the charge?
9 A. Yes, it does initially.
10 Q. And why is that?
11 A. As it states here that the arresting officer should seek
12 approval to the charge.
13 Q. And is the correct answer based on who is seeking the
14 approval?
15 A. It's -- the correct answer is not based on who is seeking
16 approval, no.
17 Q. Does the answer to this question depend on whether it's a
18 police officer or a sergeant who is being asked this question?
19 A. No.
20 Q. Do you see that the correct answer is indicated as C?
21 A. Yes, I do.
22 Q. What -- are there any consequences if the arresting officer
23 or his supervising sergeant believed that the correct answer is
24 B?
25 A. Well, yes, there are consequences.
946
1 Q. What are they?
2 A. Possibility of failure to prosecute and inability to
3 prosecute this case or obtain proper approval of proper
4 charges. And again, possibility of inappropriately
5 investigating this matter prior to the presentation of all
6 evidence for approval.
7 Q. Does the answer, the correct answer, to this question
8 depend on whether you are a field or a desk sergeant?
9 A. No.
10 Q. Turn to page 122 -- Question 122, please. Review it.
11 A. Ready.
12 Q. What information is being sought by this question?
13 A. The correct charge with which to charge the suspect in this
14 manner.
15 Q. And is the information contained in this question the type
16 of knowledge a sergeant needs to know?
17 A. Yes.
18 Q. And why is that?
19 A. To determine the appropriate manner in which to investigate
20 the offense, to determine whether or not elements are there
21 that warrant seeking of the charge and which charge should be
22 sought if, in fact, there is a charge that should be sought.
23 Q. Who is seeking approval of the charges in this matter -- in
24 this question?
25 A. The arresting officer.
947
1 Q. And does the sergeant have any role in that process?
2 A. Yes.
3 Q. And what is that?
4 A. Advisory, supervisory and also to direct to ensure that
5 there is proper investigation of this matter prior to
6 presenting it for approval.
7 Q. And the correct answer, as indicated, is A, is that
8 correct?
9 A. Yes, it is.
10 Q. Does the correct answer to this question depend on who
11 within the police department is seeking approval of the charge?
12 A. No, it doesn't.
13 Q. Turn to Question 123, please.
14 A. I'm ready.
15 Q. Does the question identify who is seeking the charges?
16 A. No.
17 Q. What information is being sought by this question?
18 A. The potential charge that an individual could be charged
19 with.
20 Q. And is that information -- is the information contained in
21 this question the type of knowledge a sergeant needs to know?
22 A. Yes.
23 Q. And why is that?
24 A. In the case of this question, you have misdemeanors and
25 felonies, and the determination as to which would be
948
1 appropriate response to this question is determined by the
2 facts given. But also it has an effect upon an individual's
3 guaranteed rights upon the ability to prosecute the particular
4 matter in question, and whether or not proper investigation had
5 been done prior to presentation of this particular case for
6 approval of charges.
7 Q. And what kind of an offense in terms of classification is
8 the offense that is in answer A?
9 A. Felony.
10 Q. And what type of an offense is the offense that is in
11 answer B?
12 A. Misdemeanor.
13 Q. And if a sergeant does not know the information in this --
14 elicited in this question, is it an appropriate procedure to
15 call around and try to contact the prostitution unit to find
16 out the answer?
17 A. It wouldn't be practical at the time of the occurrence, and
18 I don't know of any sergeants that really have access to a
19 telephone in their vehicles either.
20 Q. Thank you.
21 Question 124.
22 A. I'm ready.
23 Q. Let me ask you a question as to who would respond to this
24 kind of incident when it occurs.
25 A. Well, more than likely you would certainly have a police
949
1 officer assigned and you would have a supervisory member
2 assigned because of the nature of this type of allegation.
3 Q. Would the detective division ever be contacted in the first
4 instance to conduct the preliminary investigation?
5 A. No, preliminary investigation would be conducted by field
6 unit personnel, district personnel.
7 Q. When does the -- when is the detective division called upon
8 to further investigate an incident?
9 A. Subsequent to the arrest and completion of preliminary
10 investigation.
11 Q. What information is being sought by Question 124?
12 A. What elements were necessary in order to charge with the
13 stated charges listed in the stem of the question.
14 Q. Is that charge a felony?
15 A. Yes.
16 Q. And does the answer to this question depend on who within
17 the Chicago Police Department is seeking approval of the
18 charge?
19 A. No.
20 Q. Does the answer to this question depend on whether it is a
21 police officer or a sergeant who is being asked this question?
22 A. No, it doesn't.
23 Q. Does the answer to this question depend on whether you are
24 a field or a desk sergeant?
25 A. No.
950
1 Q. Turn to Question 125, please.
2 A. Okay. I'm ready.
3 Q. What information is being sought by this question?
4 A. The appropriate charge to be sought by an arresting
5 officer.
6 Q. And is the information contained in this question the type
7 of knowledge a sergeant needs to know?
8 A. Yes.
9 Q. And why is that?
10 A. For the purpose of directing, guiding, advising and
11 ensuring proper investigation of this matter.
12 Q. Are all of the answers listed in A through E felonies?
13 A. I believe so.
14 Q. And is C the correct answer?
15 A. C is the correct answer.
16 Q. Does the correct answer to this question depend on who
17 within the police department is seeking approval of the charge?
18 A. No, it doesn't.
19 Q. Does the answer to this question depend on whether it's a
20 police officer or a sergeant who is being asked this question?
21 A. No, it doesn't.
22 Q. Does the answer to this question depend on whether you are
23 a field or a desk sergeant?
24 A. No.
25 Q. Question 126?
951
1 A. I'm ready.
2 Q. What information is being sought by this question?
3 A. The appropriate charge that should be sought to charge the
4 offender in this -- the alleged offender in this particular
5 instance.
6 Q. And who is seeking approval of the charges?
7 A. The arresting officer.
8 Q. And is the information contained in this question the type
9 of knowledge a sergeant needs to know?
10 A. Yes.
11 Q. And why is that?
12 A. For purposes of proper guidance of subordinates, proper
13 preparation of the preliminary investigation, proper gathering
14 of evidence, and seeking of proper charges, which would entail
15 also the ability to articulate all the elements of the offense.
16 Q. Does the answer to this question depend on who within the
17 police department is seeking approval of the charge?
18 A. No.
19 Q. Does the answer to this question depend on whether it's a
20 police officer or a sergeant who is being asked this question?
21 A. No, it doesn't.
22 Q. Does the answer to this question depend on whether you are
23 a field or a desk sergeant?
24 A. No.
25 Q. Turn to the next page, please.
952
1 A. Would that be No. 130?
2 Q. That would be 130, yes.
3 A. I'm ready.
4 Q. What information is being sought by this question?
5 A. The proper charge which the arresting officer should seek
6 approval for.
7 Q. And is the information contained in this question the type
8 of knowledge a sergeant needs to know?
9 A. Yes.
10 Q. And why is that?
11 A. For proper direction and guidance of subordinates, for
12 proper investigation, preliminary investigation, of the matter,
13 proper evidence gathering, for proper identification of
14 witnesses and ultimate presentation for approval.
15 Q. And who is seeking approval of the charges in this case?
16 A. The arresting officer.
17 Q. Does the answer to this question depend on who within the
18 police department is seeking approval of the charge?
19 A. No, it doesn't.
20 Q. Does the answer to this question depend on whether it is a
21 police officer or sergeant who is being asked this question?
22 A. No.
23 Q. Is this a type of situation that a youth officer would get
24 involved in?
25 A. Possibly.
953
1 Q. And --
2 A. Probably.
3 Q. -- at what time would a youth officer get involved in this
4 type of circumstance?
5 A. Once the preliminary investigation is being completed and
6 an arrest was made, if an offender was able to be arrested.
7 Q. So is the investigation at that point turned over to the
8 youth officer?
9 A. The investigation would be -- there would be a follow-up
10 investigation conducted by the youth officer subsequent to the
11 initial investigation by the patrol division personnel.
12 Q. Would a youth officer be called to the scene immediately?
13 A. Not normally.
14 Q. Question 137. In this question -- I'm sorry. Did you have
15 a chance --
16 A. I am ready.
17 Q. In this question who is being directed to do the activity?
18 A. The sergeant.
19 Q. And what information is being sought?
20 A. The appropriate action that should be taken by an
21 individual regarding compliance with traffic regulations.
22 Q. Where is the information -- strike that. What information
23 let me rephrase that.
24 Where is the information contained that is being
25 elicited by this question, if you know?
954
1 A. That information is contained within municipal code, state
2 statute.
3 Q. And is the information contained in this question the type
4 of knowledge a sergeant needs to know?
5 A. Yes.
6 Q. Why is that?
7 A. On this particular question you are dealing with a matter
8 of public safety. The supervisor is being requested to
9 instruct citizens with regard to the proper action to take.
10 And there is a potential here for endangering others if the
11 appropriate action isn't taken.
12 Q. Now, the correct answer is D, is that right?
13 A. Yes.
14 Q. What is --
15 THE COURT: Could I just interject here because I
16 don't know about the rest of you, but I have seen a number of
17 these things, and they don't stop for stoplights or stop signs
18 or anything. Now, my recollection is that usually there is a
19 police car at the lead, but I mean, this is a policy that's
20 followed in the City of Chicago?
21 MS. PAPUSHKEWYCH: Well, would you give me a moment,
22 your Honor?
23 THE COURT: Well, no, I am not trying to create a
24 problem. It's just that I have seen so many of these things
25 where they don't pay any attention to the lights. In fact,
955
1 they usually have noise. They got flags on the cars.
2 MS. PAPUSHKEWYCH: Well, I think that's an absolute
3 appropriate example of why we want to make sure that our
4 sergeants and police officers know what they are supposed to be
5 doing.
6 THE COURT: I have never seen a long funeral
7 procession stop at stop signs, stop at traffic lights and so
8 on. Maybe I have just had unusual experiences, but --
9 MS. PAPUSHKEWYCH: Well, I am going to show the
10 witness what has been marked as part of Defendant's Exhibit
11 K-75.
12 MR. FLAXMAN: Could I see that?
13 (Brief pause.)
14 MS. GLINK: Your Honor, this is going to be part of
15 the stipulation.
16 MS. PAPUSHKEWYCH: This is part of the stipulation.
17 And what I will ask you, for the record, this is a stipulation
18 that contains the underlying either general order or criminal
19 code or municipal code where the correct answer is listed. And
20 we will be providing the Court with this for each and every
21 question.
22 THE COURT: Okay.
23 MS. PAPUSHKEWYCH: That is in --
24 THE COURT: Well, I'm sure that the law does not
25 create an exception for funeral procession, but --
956
1 BY MS. PAPUSHKEWYCH:
2 Q. Could you please just take a moment to review?
3 THE COURT: It's interesting to see the number of
4 answers that would have had E, "Use caution when proceeding
5 against the signal." There is quite a few. In fact, it was
6 the majority.
7 MS. PAPUSHKEWYCH: I'm sure if we self-administered
8 the exam, your Honor, we'd get a lot of different questions.
9 THE COURT: Okay.
10 BY MS. PAPUSHKEWYCH:
11 Q. Have you had a chance to review this document?
12 A. Yes, I have.
13 Q. And I will just identify it as -- could you identify it for
14 the record if you know what it is?
15 A. I didn't read the cite, I'm sorry. Let me look at the
16 cite, please.
17 Q. Okay. I think it's up in the corner?
18 A. It's chapter 9, Section 32-20, of the Municipal code of
19 Chicago, I believe.
20 Q. And does that indicate what the correct answer is?
21 A. Yes, it does.
22 Q. And what is the correct answer?
23 A. Correct answer by option here is option D.
24 MS. PAPUSHKEWYCH: You will be able to look at all of
25 them.
957
1 THE COURT: Tough. I promise I won't make a citizen's
2 arrest.
3 THE WITNESS: I think this is a case where practice
4 and the law diverged over the years.
5 BY MS. PAPUSHKEWYCH:
6 Q. Is the information contained in this question the type of
7 knowledge a sergeant needs or should know?
8 A. Yes.
9 Q. Why is that?
10 A. Again, as I previously stated, because it deals with
11 matters of public safety. Inappropriate instruction could in
12 effect unnecessarily endanger the general public.
13 Q. Question 139, please.
14 What information is being sought by this question?
15 A. The statutory establishment for a particular speed limit.
16 Q. Is it rare to issue these types of citations?
17 A. No, it's not.
18 Q. And why is it important to -- is it -- the information
19 contained in this question the type of knowledge a sergeant
20 needs to know?
21 A. For many reasons, one we are assuming that all of our
22 personnel are responsible to operate police vehicles. They
23 drive through alleys. They must comply with all laws and
24 ordinances when they are operating a police vehicle, unless
25 it's an emergency situation. Then there is exigent
958
1 circumstances.
2 That alone is probably enough, but also in effect that
3 they will be required at times to ensure proper enforcement
4 action by their own subordinate personnel.
5 Q. I am going to call your attention now to Questions 147,
6 148, 149 and 150.
7 A. I don't have those.
8 Q. You don't? These are the ones that keep going from the
9 package.
10 THE COURT: I will give you mine, here. You can get
11 it from here.
12 THE WITNESS: Thank you, your Honor. 147?
13 BY MS. PAPUSHKEWYCH:
14 Q. Let's start with 147.
15 A. Okay. I'm ready.
16 Q. What is the Chicago Alternative Police Strategy, CAPS.
17 A. CAPS is the philosophical change in the police department.
18 It's the direction we are going in for the future of the law
19 enforcement in Chicago.
20 Q. In 1993, at the time of the development of the sergeant
21 exam, what stage of implementation was CAPS in?
22 A. We were entering a prototype stage. We had identified five
23 police districts which were going to be the prototypes for
24 implementation of this initial strategy. And subsequent to
25 that we are going to expand department-wide.
959
1 Q. And had anything been issued regarding the new approach to
2 policing strategies, if you know, in 1993?
3 A. Yes.
4 Q. What had been issued?
5 A. Document called "Together We Can."
6 Q. And who had it been issued to, if you know?
7 A. All personnel of the department.
8 Q. And what did that document contain?
9 A. It contained the -- it was a blueprint for change for the
10 Chicago Police Department, contained all the elements of any
11 change for the department.
12 Q. And has the CAP -- has the CAPS or CAPS subsequently been
13 implemented within the Chicago Police Department?
14 A. Yes.
15 Q. What's the status of that implementation today?
16 A. It's been expanded to all 25 police districts and is
17 currently being integrated to the support units of the
18 department.
19 Q. Is -- in your opinion, is the information contained in this
20 question relating to CAPS the type of knowledge a sergeant
21 needs to know?
22 A. I would say, yes, most emphatically it is.
23 Q. Why is that?
24 A. This is going to be the future of the Chicago Police
25 Department, and this is going to be something which is going to
960
1 be a daily responsibility of not only line personnel but their
2 supervisors.
3 Q. Could you refresh my recollection again on when you left
4 the training academy?
5 A. 19 -- May of 1995.
6 Q. Were you responsible for the training program for sergeants
7 when promotions were made from this examination in August of
8 1994?
9 A. Yes.
10 Q. And at that point, what was the -- at what stage was the
11 implementation of the CAPS program?
12 A. It had already begun. Again we were in the prototype
13 districts, during our prototype phase, with that primary
14 implementation.
15 Q. Would you look at question 148?
16 A. I'm ready.
17 Q. The information being sought in that question, do you know
18 from what material that information was derived?
19 A. This material, I believe, was taken directly from "Together
20 We Can."
21 Q. And Question 149?
22 A. Ready.
23 Q. Do you know from what material this information was
24 derived?
25 A. "Together We Can."
961
1 Q. And I will ask you the same question on Question 150. From
2 what information was this material derived, if you know?
3 A. Again it appears to be from "Together We Can."
4 Q. Is the information --
5 THE COURT: Could I interrupt? We are at 45 now,
6 4:45.
7 MS. PAPUSHKEWYCH: 4:45. I am on --
8 THE COURT: I was just wondering how long you are to
9 completing?
10 MS. PAPUSHKEWYCH: I have three more questions.
11 THE COURT: All right. We will let you complete. And
12 then we will see how long the cross might be, because otherwise
13 we have to invite him back again.
14 BY MS. PAPUSHKEWYCH:
15 Q. Question 150, is the information contained in this question
16 the type of knowledge a sergeant needs to know?
17 A. Yes.
18 Q. Why is that?
19 A. Well, again it deals with the fundamental ability to
20 provide service to a community and to begin the implementation
21 of this philosophical change that we are talking about called
22 CAPS.
23 Q. Now, I believe it was your testimony, commander, on Friday
24 that you did review all 150 items of the work job knowledge
25 test, is that right?
962
1 A. Correct.
2 Q. Having reviewed all 150 items, did you form an opinion as
3 to whether the information contained in those questions was
4 information that a sergeant needs to know?
5 A. Yes, I did.
6 Q. What was that opinion?
7 A. I felt that it was relevant to the responsibilities of a
8 sergeant. The items to me appeared to be things that a
9 sergeant should know.
10 MS. PAPUSHKEWYCH: Thank you very much.
11 THE WITNESS: Thank you.
12 THE COURT: All right. Should we invite him back?
13 MR. FLAXMAN: Yes, I think we should.
14 THE COURT: All right. Always nice to have you here.
15 THE WITNESS: I love it here, your Honor.
16 THE COURT: So you are temporarily excused until
17 tomorrow then at 9:00 o'clock.
18 MS. PAPUSHKEWYCH: Yes.
19 THE COURT: All right. And does it look like we can
20 complete the taking of the evidence tomorrow then?
21 MS. PAPUSHKEWYCH: Depends on Mr. Flaxman, as usually.
22 We certainly should be able to put on our case unless we are --
23 we have a lot of cross-examination of our witnesses.
24 THE COURT: How many are we going to have? Does he
25 know who they are?
963
1 MS. PAPUSHKEWYCH: Oh, yes. Oh, yes, we have
2 exchanged. We told him our witnesses. It's -- we have two
3 more, maybe three, but the third one would be short.
4 THE COURT: Klein and the --
5 MS. PAPUSHKEWYCH: And Commander Cadogan, or Chief
6 Cadogan is I guess what he is.
7 MR. FLAXMAN: I have some rebuttal, and I also have a
8 psychologist in rebuttal who is available in the morning but
9 not in the afternoon. She is going to be very short.
10 MS. PAPUSHKEWYCH: First we have heard of this.
11 MR. FLAXMAN: She is a rebuttal psychologist about the
12 point about oral comprehension and reading comprehension, which
13 came up in Dr. Yard's (phonetic) testimony.
14 THE COURT: Okay. All right.
15 MS. PAPUSHKEWYCH: I presume we will not get the
16 findings of fact to you tomorrow since we are still fighting
17 them out.
18 THE COURT: What I am worried about is that you are
19 going to have witnesses appear so that you are going to fore-
20 stall this. I am kidding, but can we say Wednesday for sure,
21 Wednesday morning by 10:00 o'clock?
22 MS. PAPUSHKEWYCH: Our case would be done tomorrow
23 except for Mr. Flaxman.
24 MR. FLAXMAN: We are talking about the findings, not
25 about the evidence. I -- we won't have all the transcripts by
964
1 Wednesday, and probably we should have the transcript. We've
2 spent so much time doing --
3 THE COURT: I know you have. I know you have. And
4 all of this, of course, is applicable to any final injunction
5 hearing. So to the extend that it doesn't have to be all
6 duplicated, it's of value.
7 MS. PAPUSHKEWYCH: I will try to explain that to my
8 department.
9 THE COURT: All right. Don't drive in the City of
10 Chicago anymore.
11 MS. PAPUSHKEWYCH: Don't lead funeral processions.
12 So are we saying Thursday now for the findings of fact
13 and conclusions of law, Mr. Flaxman?
14 MR. FLAXMAN: I think that's realistic.
15 MS. PAPUSHKEWYCH: Fine.
16 THE COURT: All right. All right. Because we need
17 that more than ever. Each day makes it harder.
18 MS. PAPUSHKEWYCH: Yes.
19 THE COURT: Thank you very much.
20 (Hearing adjourned until the following day, March 12, 1996,
21 at the hour of 9:00 o'clock a.m.)
22
23
24
965
1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3
4 PEGGY L. ADAMS, et al., ) No. 94 C 5727
)
5 Plaintiffs, )
)
6 vs. )
)
7 CITY OF CHICAGO, ) Chicago, Illinois
) March 12, 1996
8 Defendant. ) 9:10 a.m.
9
10 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JOHN A. NORDBERG
11
APPEARANCES:
12
For the Plaintiffs: MR. KENNETH N. FLAXMAN
13 122 South Michigan Avenue
Suite 1850
14 Chicago, Illinois 60603
15
For the Defendant: HON. SUSAN S. SHER
16 Corporation Counsel
30 North LaSalle Street
17 Suite 1020
Chicago, Illinois 60602
18 BY: MS. DARKA S. PAPUSHKEWYCH
MS. SHONA B. GLINK
19 MR. JAY MICHAEL KERTEZ
Assistants Corporation Counsel
20
21 ALEXANDRA ROTH, CSR, LTD.
Pamela S. Warren, CSR, RPR
22 P.O. Box A-3201
Chicago, Illinois 60690-3201
23 (312) 294-0134
24
25
DeLopez - cross 966
1 (Proceedings held in open court:)
2 THE CLERK: 94 C 5727, Adams versus the City of
3 Chicago, for hearing.
4 MR. FLAXMAN: Let me --
5 THE COURT: Good morning, all. We'll give you time to
6 get everything set. And we're all set to --
7 MS. GLINK: She is --
8 THE COURT: -- go ahead with our witness?
9 MS. GLINK: Yes, we are.
10 MS. PAPUSHKEWYCH: He's here.
11 THE COURT: All right. Sir, if you will come forward
12 again.
13 Now you remain under oath. Be seated.
14 THE WITNESS: Yes, sir.
15 THE COURT: We should have water there for you.
16 THE WITNESS: Thank you, your Honor.
17 CROSS EXAMINATION (Resumed)
18 BY MR. FLAXMAN:
19 Q. Commander DeLopez, when you were the training -- when you
20 were commander of the training division, what did you do?
21 A. I am not sure what you're asking me.
22 Q. Well --
23 A. My scope of responsibility?
24 Q. What is the training division?
25 A. Well, the training division is one division of the
DeLopez - cross 967
1 department that is responsible for both in-service and basic
2 training for Chicago police personnel and in addition does
3 training for other departments under the auspices of the
4 Illinois State Training Board.
5 Q. Now this -- the basic training, is that for newly hired
6 police officers?
7 A. Yes.
8 Q. And is there classroom instruction in that basic training?
9 A. Yes, there is.
10 Q. Does that classroom instruction cover the statutes of the
11 State of Illinois?
12 A. Yes, it does.
13 Q. Does it cover the general orders of the Chicago Police
14 Department?
15 A. Yes, it does.
16 Q. Does it cover the special orders of the Chicago Police
17 Department?
18 A. Yes.
19 Q. Does it cover the relevant -- the ordinances of the City
20 of Chicago that are relevant to a police officer?
21 A. Yes, it does.
22 Q. And are there tests in that basic training?
23 A. Yes.
24 Q. And are these tests where you have to pass -- are these
25 tests given on a periodic basis?
DeLopez - cross 968
1 A. Yes, they are.
2 Q. Like every week?
3 A. No.
4 Q. How often are they given?
5 A. Approximately every other week.
6 Q. And is the test scored so that only the top half go on to
7 continue training?
8 A. No.
9 Q. How are the tests -- is there a passing score in the test?
10 A. There is a passing score on an exam, yes.
11 Q. And if you don't pass the test, do you get to take it over
12 again?
13 A. No.
14 Q. What happens if you don't pass the test?
15 A. You're offered supportive training remediation assistance
16 with preparation in the areas which you might be weak in.
17 Q. So is that extra tutoring?
18 A. Yes, it is.
19 Q. And after the extra tutoring, do you get retested?
20 A. No.
21 Q. How is it determined that the extra tutoring has helped
22 the recruit learn what he or she needs to know?
23 A. By the performance on subsequent exams.
24 Q. Now you also talked about in-service training.
25 A. Yes.
DeLopez - cross 969
1 Q. And what's in-service training?
2 A. That's training that's done for non-probationary officers,
3 veteran officers in specific areas.
4 Q. Now this -- the basic training, is there a final exam that
5 you have to pass?
6 A. Yes. Well, actually there are two final exams.
7 Q. Does that cover the rules, regulations and policies of the
8 Chicago Police Department that an officer needs to know?
9 A. Depending on which exam we're talking about.
10 Q. Well, the --
11 A. There's the -- if I could expound.
12 Q. Tell us.
13 A. There is a final exam, that's an academy final exam, and
14 then there is also a state mandate that every officer that is
15 certified as a peace officer in the State of Illinois must take
16 and pass the state certification exam which is a comprehensive
17 exam.
18 Q. Now the -- putting the state exam aside, the academy exam,
19 does that cover the knowledge that a police officer needs to
20 know to be a police officer?
21 A. Yes.
22 Q. And does everyone who is a police officer who graduates
23 from the academy have passed that academy exam?
24 A. Yes, they do.
25 Q. Now once a police officer has graduated from the academy,
DeLopez - cross 970
1 is there any periodic testing that you have to do as a police
2 officer to be -- to determine whether or not you continue to
3 know the rules and regulations of the Chicago Police
4 Department?
5 A. You mean ongoing testing for incumbent officers?
6 Q. Right. Do you have to take a test every year to see if
7 you still know the rules?
8 A. No.
9 Q. Do you have to take a test every year to see if you still
10 know the statutes?
11 A. No.
12 Q. Do you know why that is?
13 A. No, I don't.
14 Q. Now you have studied for a promotional test, haven't you?
15 A. Yes.
16 Q. You have studied for job knowledge tests, is that right?
17 A. Yes, I have.
18 Q. You have studied for job knowledge tests for promotion to
19 sergeant, is that right?
20 A. Yes, I have.
21 Q. You also studied for a job knowledge test for promotion to
22 lieutenant, is that right?
23 A. Correct.
24 Q. What did you do when you studied for the job knowledge
25 test in those promotional exams?
DeLopez - cross 971
1 A. Well, in preparation for my exams, I first compiled a list
2 of documents. I obtained all those documents, you know, which
3 were relevant. I began to study those, read those, prepare
4 questions for myself, tape record myself, test myself, work
5 with others to assist each other with our study preparation,
6 which included orally testing each other.
7 Q. And how much time did you spend reviewing the general
8 orders and special orders and relevant statutes?
9 A. I don't recall at this point.
10 Q. Was it --
11 A. It's been quite a well.
12 Q. Was it over a several month period?
13 MS. PAPUSHKEWYCH: Could we just have established some
14 foundation about which particular promotional exam and when
15 this was?
16 MR. FLAXMAN: I'll withdraw the question.
17 BY MR. FLAXMAN:
18 Q. When you studied for the -- you took the 1977 lieutenant's
19 test, is that right?
20 A. Yes, I believe so.
21 Q. And you studied -- did you study the rules and regulations
22 and statutes that are applicable to Chicago police lieutenants
23 in preparation for that exam?
24 A. That was part of what I studied, yes.
25 Q. And did you study over a several month period?
DeLopez - cross 972
1 A. Again I don't recall how much time I prepared. I couldn't
2 tell you that.
3 Q. Is there any reason of which you are aware as the former
4 commander of the training division why there couldn't be
5 courses to assist police officers who want to learn what it
6 takes, the knowledge necessary to be a sergeant, why the
7 training academy couldn't run a course like that?
8 A. Why the training academy couldn't run a course like that?
9 Q. Yeah.
10 A. Well, specifically why the training academy doesn't run a
11 course like that, I can't speak to that. I mean, there are
12 several courses already available to people that are tutorial
13 or preparatory in nature.
14 Q. Those are not -- those are private courses, aren't they?
15 A. Correct, they are privately organized.
16 Q. And as a matter of fact the present director of the
17 training academy has run some of those private study groups, is
18 that right?
19 A. I believe he has.
20 Q. His name is -- what's his name?
21 A. Deputy Superintendent Charles Roberts.
22 Q. Is there any reason of which you are aware as former
23 director of the training division why the Chicago Police
24 Department could not run a study session, a study group to
25 learn what it takes -- what you need to know to be a sergeant?
DeLopez - cross 973
1 MS. PAPUSHKEWYCH: Could we just establish at what
2 point, counsel? Is it before the exam? During?
3 I just am -- I am failing to follow where we are in
4 the process in terms of his question.
5 THE COURT: I'll sustain the objection as to the form.
6 It is not clear exactly what you are relating.
7 BY MR. FLAXMAN:
8 Q. What -- is it your opinion that in order to become a
9 Chicago police sergeant, a police officer needs to know about
10 the rules and regulations of the Chicago Police Department, the
11 statutes of the State of Illinois and the relevant ordinances
12 of the City of Chicago?
13 A. Yes, to be an effective supervisor, I think, yes.
14 Q. And is it correct that under the system that's been in
15 place for the last -- since you have been a police officer, the
16 way in which police officers who want to be promoted to
17 sergeant prepare themselves to show that they have acquired
18 that information is by self-study?
19 A. Well --
20 Q. And self-study and then taking a written multiple choice
21 test?
22 MS. PAPUSHKEWYCH: I'm just --
23 BY THE WITNESS:
24 A. I can't speak to that.
25 MS. PAPUSHKEWYCH: May I interpose an objection to the
DeLopez - cross 974
1 relevancy of these questions and to basically the foundation
2 for these questions. If the witness can answer what 4,700
3 people did to study for this exam, if he is competent to do so,
4 I think he should go ahead and do that, but what is the
5 relevancy of this whole line of questioning?
6 THE COURT: We'll hear that in the closing argument.
7 I will overrule the objection and permit you to proceed.
8 BY MR. FLAXMAN:
9 Q. Do you remember the last question?
10 A. As I began my response, I can't speak to that because I
11 really am not familiar with what everyone has done to prepare
12 for an exam.
13 Q. Well, what you did was to study on your own and with
14 others, is that right --
15 A. Right.
16 Q. -- for the 1977 lieutenant's job knowledge test, is that
17 right?
18 A. Right.
19 Q. And that's the same thing you did to study for the
20 sergeant's test you took before that?
21 A. Correct.
22 Q. Then after you studied you went and took a timed multiple
23 choice test, is that right?
24 A. For the sergeant's exam, yes, that's correct.
25 Q. Okay. Now -- and you know as you sit here now that that's
DeLopez - cross 975
1 the same -- well, strike that.
2 Is the test that you took to be promoted to sergeant
3 similar in format to the test you were looking at yesterday,
4 Exhibit 55, those questions?
5 A. To the written job knowledge portion of the test?
6 Q. Yes.
7 A. Yes, it was as far as my recollection.
8 Q. Now as former director of the training division, is there
9 any reason of which you're aware why there couldn't be a course
10 for people who want to be promoted to sergeants where they are
11 taught the rules and regulations and statutes and ordinances
12 and then tested every two weeks to see if they have learned
13 them?
14 A. Certainly constraints of time, space, cost, and in
15 addition to that it is something that's already done in the
16 basic preparation of a police officer for his service to our
17 city.
18 Q. Other than -- now when you talked about time, what did you
19 mean? It would take time --
20 A. Time constraints of the staff themselves. There are
21 limits to the amount of resources available certainly.
22 Q. Well, and what do you mean by space?
23 A. The effective identification of sufficient space to
24 accommodate the people that might necessarily want to
25 participate.
DeLopez - cross 976
1 Q. What do you mean by cost?
2 A. The costs -- who would bear the cost of the presentation.
3 When you're doing a tutorial you have a lot of incidental
4 costs. You have preparation of materials, you have duplicating
5 costs, you have time for possibly bringing in people that have
6 specialties, specialty areas of concentration.
7 Q. Is there any other reason of which you are aware why the
8 city could not have an instructional course to -- of the type
9 that I have described for people who want to be promoted to
10 sergeant?
11 A. Not to my knowledge.
12 Q. Do you know if when you were director of the training
13 division if having such -- that kind of course was ever
14 considered?
15 A. I never proposed it. Whether or not it was considered by
16 anyone else, I can't answer that question.
17 Q. Let me ask you to look at what's been marked as
18 Plaintiffs' Exhibit 14.
19 MR. FLAXMAN: I think your Honor has a copy.
20 THE COURT: Yes, I do.
21 MR. FLAXMAN: I have an extra copy.
22 BY MR. FLAXMAN:
23 Q. Let me ask you to look at pages and Question 22.
24 A. Okay.
25 Q. Now is the material that's addressed in Question 22
DeLopez - cross 977
1 something that's taught to newly hired police officers in the
2 academy?
3 A. From a police officer's perspective the procedures to
4 follow, yes.
5 Q. Is the subject matter of Question 22 something that's
6 taught to sergeants after they are -- before -- in the academy
7 before they go out to work as sergeants?
8 A. During their pre-service sergeant's training they are
9 given exposure to the proper handling of disciplinary matters,
10 yes.
11 Q. So Question 22 is something that's taught in sergeant
12 training, is that right?
13 A. Not the question. My response was that proper procedural
14 matters -- proper procedures with regard to disciplinary
15 matters is taught.
16 Q. Now let me ask you to look at Question 25. Is the
17 department members' bill of rights something that's taught to
18 newly hired police officers in the academy?
19 A. Contract provisions are covered. I'm not -- I can't
20 answer whether or not specifically the members' bill of rights
21 is in there, but the -- to the best of my recollection there is
22 reference made to it.
23 Q. Well, is it important to know the bill of rights?
24 A. I certainly think it is.
25 Q. And if it is important, it should be covered in training,
DeLopez - cross 978
1 isn't that right?
2 A. Again I can't specifically tell you what's contained in
3 every curriculum guide and every training lesson plan and
4 outline. I don't recall the specifics.
5 Q. Well, is this something -- the subject matter of Question
6 25 something that's taught to newly appointed sergeants?
7 A. I don't recall. I haven't referred to a curriculum guide
8 for a lesson plan in over a year. I would have to look at the
9 sergeant's training program and use that as reference to
10 refresh my memory.
11 Q. Does Question 25 apply to sergeants who work in internal
12 affairs?
13 A. Question 25 should apply to any department member.
14 Q. Well, are the sergeants who performed the duties referred
15 to in Question 25 assigned to internal affairs?
16 A. Exclusively? Is that the question, only sergeants?
17 Q. Primarily assigned to internal affairs.
18 A. No, not necessarily.
19 Q. Okay. Let me ask you to look at Question 26. Is Question
20 26 something that's taught to newly hired police officers in
21 the training academy?
22 A. Examples of this type of incident are taught to police
23 officers, yes.
24 Q. Is Choice A -- would Choice A be wrong?
25 A. In this case, yes.
DeLopez - cross 979
1 Q. Would that impede the performance of the police officer's
2 duty if he or she notified his supervisor?
3 A. I think you might be taking my question -- my response out
4 of context.
5 Q. Well --
6 A. The question implies that this is something that can be
7 delayed and should be done later, not immediately done.
8 Q. Well, let me try to be more specific in my question. The
9 correct answer to Question 26 is C, to submit the particular
10 report, is that right?
11 A. Correct.
12 Q. Now if in addition to submitting the completed report the
13 patrol officer also notified his or her supervisor, would that
14 be wrong?
15 A. Well, again, I think it is out of context. When we're
16 reading this answer alone without looking at how it was
17 prefaced, the preparation of the officer to respond to this
18 exam, the potential sergeant, I'd have to revert to what I
19 said. There needs to be another word here if this was going to
20 be something that wouldn't necessarily be wrong.
21 Q. Well, if a patrol officer who encountered that particular
22 incident notified his or her supervisor upon completion of the
23 preliminary investigation, would that patrol officer be
24 disciplined?
25 A. Depends on the circumstance.
DeLopez - cross 980
1 Q. Is there any circumstance under which a patrol officer who
2 notified his or her supervisor upon completion of the
3 preliminary investigation could be disciplined for making that
4 notification?
5 A. Your Honor, if I could respond a little bit, if I could
6 expound on my response, the word that needs to be inserted here
7 is if the officer would immediately notify the supervisor, then
8 the officer would be correct in his actions or her actions.
9 Q. So if we added "immediately" before "notified" then Choice
10 A would be correct, is that right?
11 A. It could be.
12 Q. Now --
13 THE COURT: The problem I have on these questions,
14 isn't there some instruction at the beginning to indicate that
15 you're supposed to use the most correct answer?
16 MR. FLAXMAN: Oh, yes.
17 THE COURT: And that in effect more than one answer
18 may be correct, but you're supposed to pick the most correct.
19 MR. FLAXMAN: But the question, which we will be
20 addressing in final argument perhaps, is is that an important
21 distinction for a police officer to know, which is more correct
22 in making these fine distinctions. If there are two that's
23 good enough, does it mean anything if he or she picks the most
24 correct? What is that, does that show --
25 THE COURT: Okay. You can ask -- develop whatever you
DeLopez - cross 981
1 wish. But I just want to be sure I was correct on that, that
2 in a number of these there may be more than one answer that in
3 the abstract is correct, but you're supposed to pick the most
4 correct.
5 MR. FLAXMAN: And our point is what does that show.
6 BY MR. FLAXMAN:
7 Q. Is knowing the correct answer to Question 26 more
8 important than knowing the correct answer to 27?
9 A. I have to have a minute to read 27.
10 Q. Take a moment to read 27.
11 (Brief interruption.)
12 BY THE WITNESS:
13 A. Well, it is difficult for me to make a comparison of the
14 importance or the value of making a correct decision for either
15 of these questions because the impact could be multi-fold with
16 making the wrong decision in either case, whether you have a
17 case that's a serious incident motivated by hate or whether
18 you're taking control over someone's property I mean, I don't
19 know if I could give you a clear distinction of the importance
20 of one or the other.
21 BY MR. FLAXMAN:
22 Q. So you're telling us that in your opinion submitting a
23 completed information report is just as important as knowing
24 when to complete a property inventory form?
25 A. I am saying that they could be. Depends on the situation
DeLopez - cross 982
1 and the circumstance.
2 Q. Well, in your experience in your work as a police
3 sergeant -- and you did work as a field sergeant, didn't you?
4 A. Yes, I did.
5 Q. -- is preparing an information report as
6 important -- something that you did as frequently as you
7 prepared a property inventory report?
8 A. As frequently?
9 Q. Yes.
10 A. Probably if you phrased a question by frequency, depending
11 on your unit of assignment, you may more frequently inventory
12 property then you might prepare an information report.
13 Q. Is it more important in your opinion to know the things,
14 how to do the things that you do more frequently?
15 A. You're asking me to make a value judgment, counsel, and I
16 can't do that. I told you it depends on the circumstance.
17 Q. Aren't you making a value judgment when you say that each
18 of these things is important for somebody to know as a
19 sergeant?
20 A. I think this entire exam is important to know if you are
21 going to be a sergeant in the Chicago Police Department.
22 Q. Now let me ask you to look at 55. When you worked as a
23 field sergeant, did you ever notify the dispatcher that a tow
24 was needed for an inoperable vehicle?
25 A. I just want to read the question first, please.
DeLopez - cross 983
1 (Brief interruption.)
2 BY THE WITNESS:
3 A. All right.
4 BY MR. FLAXMAN:
5 Q. Did you ever do that?
6 A. Yes, I did.
7 Q. Did the dispatcher ask you whether the car could be rolled
8 or whether it had to be floated?
9 A. I believe the question is, yeah, is it a roll or a float
10 -- is it a floater.
11 Q. That's something that the dispatcher asks you when you
12 call in and say you need an immediate tow, isn't that right?
13 A. Well, some may.
14 Q. Now rolled means that the car has wheels and can be
15 rolled --
16 A. Uh-huh.
17 Q. -- is that right?
18 A. Yes, sir.
19 Q. And float means that it needs some kind of a flatbed tow?
20 A. Some kind of device with wheels, yes.
21 Q. And so in the situation where the dispatcher asks the
22 sergeant whether it is a roll or a float, the sergeant will be
23 able to look at the car and say whether it is a roll or float,
24 is that right?
25 A. Yes.
DeLopez - cross 984
1 Q. Let me ask you to look at Question 66.
2 Do you see that?
3 A. Yes.
4 Q. Choice E is a felony, is that right?
5 A. Yes.
6 Q. Do arresting officers seek approval -- well, in order to
7 charge somebody with a felony, who has to approve that charge?
8 A. The -- once you establish you have probable cause for that
9 arrest situation and you have the elements of the offense,
10 depending on the nature of the felony, it will be presented
11 possibly to the watch commander and possibly to a detective for
12 discussion with an assistant state's attorney for approval of
13 charges.
14 Q. Well, the approval of charges comes from the assistant
15 state's attorney, is that right?
16 A. In most instances the final approval.
17 Q. And the approval in the offense of aggravated stalking is
18 sought from the state's attorney by a detective, isn't that
19 right?
20 A. Right.
21 Q. And what the arresting officer does is to call the
22 detective, is that right?
23 A. Not entirely. If you want my response, the detective is
24 one person in the chain of the presentation of this case.
25 Q. Well -- okay.
DeLopez - cross 985
1 A. In seeking approval of the charges.
2 Q. Is it correct then that it is not the arresting officer
3 who is seeking approval of charges?
4 A. No, it certainly is. It is initiated with that officer,
5 the charges that he will be seeking to lodge against this
6 particular arrestee.
7 Q. The arresting officer calls the detectives in a felony
8 case, is that -- except for some special drug cases, is that
9 right?
10 A. That division will be notified and consulted with.
11 Q. And then the detective division comes to the station and
12 takes over the investigation, is that right?
13 A. No, they don't come and take over, they come in and they
14 begin to conduct their portion of the investigation.
15 Q. And the -- does the arresting officer stay there to assist
16 in the investigation?
17 A. Yes, generally.
18 Q. Does the arresting officer talk to felony review?
19 A. It depends on the individual assistant state's attorney
20 assigned to felony review.
21 Q. And felony review is a branch of the state's attorney that
22 approves felony charges, is that right?
23 A. Correct.
24 Q. Who actually seeks approval, the detective or the
25 arresting officer?
DeLopez - cross 986
1 A. In my opinion, the -- it is a process, and the process
2 begins with the arresting officer.
3 Q. Okay. Let me ask you to look at Question 69 and read it
4 over to yourself.
5 A. Okay.
6 Q. Is knowing a correct answer to 69 more important than
7 knowing the correct answer to 66?
8 A. Let me go back to 66 for a minute.
9 Well, again you're asking me to make a value judgment
10 on what's more important to know or less important to know. As
11 I stated previously, everything which I reviewed is important
12 to know.
13 Q. Well, my question, sir, is knowing the correct answer to
14 69 more important for a field sergeant to know than knowing the
15 correct answer to 66?
16 A. Well, again it depends on the situation. It would depend
17 on the individual situation, it would depend on the amount of
18 impact that a wrong decision would have on the particular
19 outcome of that case.
20 Q. Now are police officers notified to appear at the final
21 scheduled impoundment hearings when a vehicle -- and the
22 officer has seized and impounded a vehicle?
23 A. They may be required to appear. They may be notified to
24 appear.
25 Q. If they are notified, does that notification mean that
DeLopez - cross 987
1 they should appear?
2 A. Correct.
3 Q. And that's the -- Question 73, that's the correct answer,
4 is that right, to appear when you are notified to appear?
5 A. Again, counsel, I need a minute to find that question.
6 Okay. I believe the question states that the sergeant
7 is instructing --
8 Q. No. My question to you, sir, is -- this Question 73 asks
9 you, does it not, that you should appear when you are ordered
10 to appear, is that right?
11 A. Well, it asks you again -- it asks you to make a selection
12 based on what the sergeant should instruct the officer to do.
13 Q. And the sergeant should instruct the officer to follow
14 orders, is that right?
15 A. No, he should instruct the officer to do only one of the
16 five things there that is correct.
17 Q. Okay.
18 A. The only thing that the officer is required to do.
19 Q. Now Question 77, is it correct that knowing the correct
20 answer to this question is important only when a field sergeant
21 is -- strike that.
22 Is it correct that knowing the correct answer to 77 is
23 important for a field sergeant to know only when the field
24 sergeant is acting as the desk sergeant and there is no watch
25 commander present?
DeLopez - cross 988
1 A. The question was is it only important or is it more
2 important?
3 Q. Is that when it is normally -- is that when knowing the
4 correct answer to Question 77 is important when those two
5 conditions are met?
6 A. Not necessarily.
7 Q. Well --
8 A. As a field supervisor you may have responsibility to take
9 action in a matter like this and not be the desk sergeant.
10 Q. Okay. But isn't this the watch commander's job of
11 determining who may stay in the district station?
12 A. Generally. But watch commanders have duties which
13 sometimes take them out of the station. A good watch commander
14 would not be in the station at his desk at all times.
15 Q. And if the watch commander left the station, the decision
16 that's referred to in Question 77 would be made by the desk
17 sergeant, is that right?
18 A. That would be one of the people that would be making that
19 primary decision.
20 Q. Well, is knowing the correct answer to Question 77 as
21 important as knowing the correct answer to Question 78?
22 A. I have to look at 78.
23 Well, again, if you are asking me to make a value
24 judgment and put things on a comparative scale, I really can't
25 do that without specific types of information. We're talking
DeLopez - cross 989
1 about two general cases here. We're saying to pick the most
2 correct answer out of each of these situations here. All I can
3 say is for all those continuing questions, they are both
4 important. I can't compare the two questions. I don't think I
5 can compare any questions for you and tell you that one is more
6 important than the other unless I had more specifics.
7 MR. FLAXMAN: Could I have just a minute, Judge?
8 (Brief interruption.)
9 BY MR. FLAXMAN:
10 Q. Question 83.
11 THE COURT: It would be helpful to me if I knew what
12 you meant by the word "important."
13 MR. FLAXMAN: Okay.
14 THE COURT: That is a word that is very ambiguous. It
15 really needs a definition, I think.
16 BY MR. FLAXMAN:
17 Q. Well, let's go back to 77 and 78. What are the
18 consequences of a field sergeant not knowing the correct answer
19 to 77?
20 A. Well, I don't know because I don't know the -- you know,
21 it is a hypothetical situation without a lot of specifics. I
22 can't tell you what the consequences could be. Ultimately
23 there could be loss of life and property given the right
24 situation, I don't know.
25 Q. What are the consequences of not knowing the correct
DeLopez - cross 990
1 answer to Question 78?
2 A. Question 78 deals with a lost life already and proper
3 identification notification. There is a potential here for
4 trauma, there is a potential here for misidentification, there
5 is a potential here for mishandling of evidence. So again I
6 can't tell you, I don't know. There aren't enough specifics
7 here to tell you the consequences.
8 Q. Well, let's look at Question 83. What would be the
9 consequence of --
10 A. Counsel, I'm not -- give me one second, please.
11 Q. Sure.
12 (Brief interruption.)
13 BY THE WITNESS:
14 A. Okay.
15 BY MR. FLAXMAN:
16 Q. What would be the consequence of a police officer setting
17 the desired court date 21 days after the day of arrest instead
18 of 15?
19 A. Well, I can't state specifically all the consequences, but
20 certainly one consequence is that I think we're delaying with
21 due process for an accused, for number one.
22 Two, again, perhaps mishandling of an investigation.
23 You know, again, specific impact I can't tell you, I can only
24 tell you that in generalities based upon what limited
25 information is here.
DeLopez - cross 991
1 Q. Well, does -- there is a particular rule which says what
2 the minimum number of days after a date of arrest of a desired
3 court date should be, is that right?
4 A. Correct, there is a department procedures for that and
5 there are guidelines for that.
6 Q. Does that rule say that the court date should be as soon
7 as possible after 15 days?
8 A. No, I believe it is phrased as what the minimum and the
9 maximums are.
10 Q. Okay.
11 A. Depending upon the type of citing, type of case cited.
12 Q. And 21 days is less than the maximum, isn't it?
13 A. Without having the cite here, I can't tell you that. I
14 don't recall.
15 Q. Well, is that something that a police commander should
16 know?
17 A. It is not something I review on a daily basis.
18 Q. Okay. Is it something that a police sergeant should know?
19 A. Yes.
20 Q. On a daily basis?
21 A. Sergeants do review this, yes.
22 Q. Let me ask you to look at Question 84. In that scenario
23 when the patrol officer is unsure about something and asks for
24 advice from the field sergeant, should the field sergeant be
25 telling the patrol officer what he or she should do rather than
DeLopez - cross 992
1 what he or she should not do?
2 A. I am not sure of your question.
3 Q. Well, okay. Have you ever seen a situation where a patrol
4 officer asks a sergeant for advice?
5 A. Yes.
6 Q. And in that situation the patrol officer wants to know
7 what to do, is that right?
8 A. Correct.
9 Q. Is the useful advice from the sergeant to tell the officer
10 how to proceed in a particular situation?
11 A. To give guidance and direction, yes.
12 Q. Well, okay. Now Question 84 doesn't ask what the field
13 sergeant -- strike that.
14 The correct answer to Question 84 isn't what the
15 sergeant tells the officer that he or she should do, isn't that
16 right, it is what the sergeant tells the officer what he or she
17 should not do?
18 A. Correct.
19 Q. And the patrol officer also shouldn't beat up the 17 year
20 old, is that right?
21 A. Well, I think this option here is because there is a
22 specific requirement for a particular person of this age under
23 these circumstances.
24 Q. And but -- all right.
25 A. The question -- in order to answer your question, I have
DeLopez - cross 993
1 to state that it is a bit out of context because this
2 particular question appears to be designed to identify the one
3 correct answer there, which is not do a certain thing.
4 Q. Now when a 15 year old is arrested, is there a particular
5 type of police officer who is -- gets involved in the
6 investigation or the arrest?
7 A. Yes, if -- you're referring to a juvenile, yes.
8 Q. And is that a youth officer?
9 A. Yes.
10 Q. And youth officers are different than sergeants, is that
11 right?
12 A. Yes, they are.
13 Q. And does the youth officer get involved in processing of
14 the 15-year-old arrestee?
15 A. Yes, they do.
16 Q. And youth officers are not supervised by regular field
17 sergeants, are they?
18 A. They are supervised by youth division sergeants.
19 Q. Okay. And the youth officer makes a decision of how a 15-
20 or 16-year-old juvenile should be processed, is that right?
21 A. Partly.
22 Q. Well, does the youth officer make that decision in
23 accordance with the rules and regulations of the Chicago Police
24 Department?
25 A. Yes, and also in accordance with the elements of an
DeLopez - cross 994
1 offense that are presented to him or her surrounding a
2 situation.
3 Q. Okay. Now Question 86, could you look at that.
4 A sergeant doesn't do the processing of juveniles, is
5 that right?
6 A. The processing of juveniles?
7 Q. Yes.
8 A. No, a sergeant doesn't do that.
9 Q. Now Question 91, could you read over that question,
10 please?
11 A. Okay.
12 Q. Now domestic violence is a commonplace occurrence, is that
13 correct? Or strike that.
14 Responding to calls of domestic violence is a
15 commonplace occurrence for a Chicago police officer.
16 A. I can respond by saying that officers frequently respond
17 to calls of domestic violence.
18 Q. When officers frequently respond to calls of domestic
19 violence, is it a commonplace occurrence for a neighbor to seek
20 to file for an order of protection on behalf of the victim?
21 A. I'm not sure what you mean by commonplace.
22 MR. FLAXMAN: Well, if I could just have a minute.
23 (Brief interruption.)
24 BY MR. FLAXMAN:
25 Q. Well, do you remember your testimony yesterday, page 730
DeLopez - cross 995
1 of my transcript, where you were asked now, this is
2 a -- referring to Question 91, you were asked:
3 "Question: This is a circumstance where the field
4 sergeant is actually responding to an incident, is that right?"
5 And your answer was: "Yes."
6 And then you were asked the question: "Is this
7 common?"
8 And you gave the answer: "Yes, certainly, the nature
9 of this offense, yes, it is a common occurrence."
10 Do you remember those questions and those answers
11 yesterday?
12 A. I don't remember that statement, but if it is in the
13 transcript, I must have said it.
14 Q. When you used the phrase "common occurrence" yesterday,
15 did you know what it meant?
16 A. I knew what my interpretation of common was.
17 Q. Now could you tell us what you meant yesterday when you
18 used the phrase --
19 A. What interpretation of common was would this be a
20 situation that you might frequently encounter and would it be
21 one in which you would respond to if you were requested to
22 respond.
23 Q. Okay. Well, now my question to you, sir, is it a common
24 occurrence when a field sergeant responds to a domestic
25 violence call for an adult woman who lives in the house next
DeLopez - cross 996
1 door to seek to file for an order of protection on behalf of
2 the victim of the domestic violence call?
3 A. By my definition of common, which I stated yesterday, it
4 is common for a field sergeant to respond to any call of
5 domestic violence.
6 Q. Is it common for an adult woman who lives in the house
7 next door to seek to file for an order of protection on behalf
8 of the victim of domestic violence?
9 A. I don't know how frequently that occurs, so I can't tell
10 you whether or not that's common. But I would, again, making
11 an opinion evaluation to answer your question, it probably
12 wouldn't be as frequently done unless no one else stood in
13 local parentis to the child.
14 Q. Of your first-hand knowledge, are you aware of any
15 situation in which this scenario has actually confronted a
16 Chicago police sergeant?
17 A. Well, I can't answer that because, again, I don't respond
18 to these types of call on a regular basis.
19 Q. Of your personal knowledge, are you aware of any scenario
20 such as described in Question 91?
21 A. Direct personal knowledge, I would have to say I have not
22 responded to a situation of this type and seen this type of
23 occurrence.
24 Q. Okay. Do you review reports of police officers?
25 A. Yes, I do, I review many types of reports.
DeLopez - cross 997
1 Q. In reviewing -- how often do you review reports of police
2 officers?
3 A. Review reports of police officers? Well, I review all
4 what we call part one index crime case reports on a regular
5 basis. Daily I get a copy of all the index crimes.
6 Q. What is an index crime?
7 A. That's one of the crimes that are reported to the State of
8 Illinois and the FBI for compilation of statistics.
9 Q. Is domestic violence an index crime?
10 A. No, it is not.
11 THE COURT: This is a child violence case, isn't it?
12 Isn't that what it normally would be?
13 MR. FLAXMAN: Domestic violence. We're 91, Judge.
14 THE COURT: Yeah, but isn't 91 -- it doesn't say that
15 it has to be an adult.
16 MR. FLAXMAN: Well --
17 THE COURT: It would seem to me that from what you
18 read in the newspapers and everything like that, child violence
19 is not an unusual event. And if it is the mother and father
20 beating up on the child, it is often a next door neighbor that
21 is the one that puts the call into DCFS and so on.
22 MR. FLAXMAN: Well --
23 BY MR. FLAXMAN:
24 Q. Well, in your work as a Chicago police commander, what
25 does domestic violence include?
DeLopez - cross 998
1 A. Well, it includes acts of violence or acts -- certain
2 defiant acts by statute against family members, members
3 residing within the same household, acts committed by people
4 who have a responsibility for care and welfare of another
5 individual.
6 Q. Okay. What's an order of protection?
7 A. Protection is an order of a court defining limits and
8 restriction placed on one party in a domestic situation.
9 Q. Does an order of protection have any applicability in the
10 scenario where the parents are beating up the child?
11 A. I'm not sure. I am not familiar. I don't deal with that
12 on a regular basis. I can't tell you if in fact that's
13 specific to that particular situation.
14 Q. Isn't it correct that the commonplace use of an order of
15 protection is for -- to protect a girlfriend, a woman who is
16 being beaten up by her former boyfriend?
17 A. No, I would have to say domestic partner. I mean, if we
18 are going to be --
19 Q. I'm sorry. Excuse me.
20 A. I deal with a different population.
21 Q. Okay.
22 A. Domestic partner who needs protection from the other
23 domestic partner is the most frequently defined situation for
24 that.
25 Q. But -- and it is -- have you ever seen an order of
DeLopez - cross 999
1 protection to protect a child from a parent or an adult?
2 A. I don't have personal knowledge of one, no.
3 Q. When there is a child abuse of that nature, DCFS takes the
4 child away, isn't that right?
5 A. Sometimes.
6 THE COURT: So --
7 BY THE WITNESS:
8 A. Not always.
9 THE COURT: So what this is pointing out then is that
10 the answer is even more suspect then.
11 MR. FLAXMAN: My -- well --
12 BY MR. FLAXMAN:
13 Q. Question 92, this is one of those things where an
14 arresting officer should seek approval to charge a particular
15 felony, is that right?
16 A. Yes, the officer should seek.
17 Q. And the arresting officer calls the detectives in this
18 kind of situation, isn't that right?
19 A. Well, that would be one of the notifications he or she
20 would make, yes.
21 Q. And the detective actually makes the decision of what to
22 ask the -- what charge to ask the state's attorney to approve,
23 isn't that right?
24 A. Not in all situations, no.
25 Q. Well, in the situation for the offenses involved in
DeLopez - cross 1000
1 Question 92, isn't it true that the detective asks the state's
2 attorney to approve murder charges or some charges of that
3 nature?
4 A. Ultimately a detective will present that for consideration
5 by a state's attorney, but there is a whole process that leads
6 up to that point.
7 Q. Okay. Now Question 94, are each of the offenses in 94
8 felonies?
9 A. No, they are not.
10 Q. Which one isn't a felony?
11 A. B, I believe. B, as in boy, I believe.
12 Q. For those felony -- is the scenario that's presented in
13 Question 94 the type of a situation in which a detective would
14 get involved?
15 A. A detective would be involved?
16 Q. Yes.
17 A. As a follow-up investigator, yes.
18 Q. What do you mean a follow-up investigator?
19 A. An officer is required to conduct a preliminary
20 investigation which encompasses responding to the scene of a
21 request for police service or an alleged crime, gathering of
22 evidence, conducting an investigation, which we call
23 preliminary investigation, which is an attempt to obtain all
24 the information possible regarding that particular situation,
25 gathering of evidence, including witnesses, whatever evidence
DeLopez - cross 1001
1 might be necessary for ultimately charging if there is going to
2 be an arrest, and arresting the offender.
3 Subsequent to that, that's presented to a detective
4 who does a follow-up investigation.
5 Q. Now subsequent to that is that like an hour after the beat
6 officer went out to make an arrest?
7 A. There are -- I can't establish a time frame for you.
8 Q. Now Question 96, is that another one of these cases --
9 scenarios where a detective would get involved?
10 MS. PAPUSHKEWYCH: Your Honor, which question are we
11 on?
12 BY THE WITNESS:
13 A. Yes, notification --
14 THE COURT: Question 96.
15 MS. PAPUSHKEWYCH: Thank you.
16 BY THE WITNESS:
17 A. Notification would be made for a follow-up investigation,
18 yes.
19 BY MR. FLAXMAN:
20 Q. Okay. Now Question 97 -- excuse me, 99 --
21 A. Okay.
22 Q. Now yesterday you told us that it is important to know the
23 elements of those particular offenses to ensure -- to avoid
24 depriving the arrestee of her civil rights. Do you remember
25 giving that testimony?
DeLopez - cross 1002
1 A. Not specific to this question, no, but I know I made
2 statements to that effect.
3 Q. Well, the situation of question -- the scenario of
4 Question 99 is where somebody is already in custody for one
5 offense, is that right?
6 A. The situation established here in this question, yes,
7 there was an arrest made.
8 Q. And when -- if there is probable cause to arrest someone
9 for criminal trespassing, does that mean that the arrest
10 officer could bring the arrestee to the police station?
11 A. Certainly.
12 Q. And at the police station can the police officers refer to
13 Illinois statutes to see if there are -- strike that.
14 Can they refer to Illinois statutes?
15 A. Can they?
16 Q. Yes.
17 A. Yes, they can.
18 Q. And is it useful to refer to Illinois statutes to be sure
19 that you are charging someone with all the elements of a
20 particular offense?
21 A. If I could respond to part of what I said regarding this
22 question yesterday, I referred also to the fact that certain
23 evidentiary matters were important and evidence had to be
24 gathered, I believe, which made it incumbent that you knew what
25 you were looking and doing at the scene, not later after
DeLopez - cross 1003
1 referring to some documents.
2 Q. Now Question 106. When you were a police officer, you
3 made arrests, didn't you?
4 A. I am still a police officer.
5 Q. Excuse me.
6 A. I still make arrests.
7 Q. I didn't mean -- when you were working in the field as a
8 police officer, did you make arrests?
9 A. Yes, I did.
10 Q. Okay. Did you ever seek approval to charge an arrestee
11 with first degree murder as a police officer?
12 A. Did I?
13 Q. Yes.
14 A. Well, that charge didn't exist at that time.
15 Q. Okay. Isn't it correct that murder is one of those
16 offenses for which detectives get involved?
17 A. Yes.
18 Q. And detectives are the people who seek approval of charges
19 from the state's attorney?
20 A. Well, again my response is that the whole process is part
21 of seeking approval.
22 Q. Question 107. Could you take a minute to look at that.
23 A. Yes.
24 Q. When a police officer makes an arrest, does the police
25 officer have to know what the arrestee is going to be charged
DeLopez - cross 1004
1 with?
2 A. Police officers should have an intent for a particular
3 charge. He should know the elements of an offense. That's
4 what establishes his or her probable cause to make this arrest
5 in the first place and determines what type of preliminary
6 investigation he or she is going to make.
7 Q. Well, if the police officer believed that somebody had
8 committed Offense D when in fact that person had committed
9 Offense A and the police officer makes the arrest, would that
10 invalidate the arrest?
11 A. I think the question asks here that in order to be charged
12 with this offense, this person must have done this. It doesn't
13 say that the police officer must know this to make the arrest.
14 Q. Well, in order to arrest an individual, would the sergeant
15 have to know what this individual was going to be charged with?
16 A. Again, I refer back to my previous answer.
17 Q. No, could you answer my question.
18 A. Well, I am referring back to that. As I stated in my
19 previous answer, the individual making the arrest must have an
20 indication or idea of the type of offense that was committed,
21 the elements of the offense, what they are potentially going to
22 attempt to charge a person with in order to conduct a proper
23 and legal arrest and a proper and legal -- a proper and
24 thorough investigation.
25 Q. Well, my precise question is in order to arrest an
DeLopez - cross 1005
1 individual, would the sergeant have to know what that
2 individual was going to be charged with?
3 A. In order to arrest an individual, any police officer has
4 to have probable cause to make the arrest.
5 Q. But you have to know what the person was going to be
6 charged with in order to arrest a person.
7 A. Because I am not sure I follow your questioning because
8 the elements of an arrest -- for an arrest to be legal, you
9 have to have probable cause. In order to establish probable
10 cause, you have to have some knowledge of an offense. You have
11 to assume you're going to charge a person with something.
12 Q. Well, but you don't have to know exactly what they are
13 going to be charged with to have probable cause to arrest them,
14 don't you?
15 MS. PAPUSHKEWYCH: I think he has answered the
16 question, your Honor. He is arguing with the witness.
17 THE COURT: Well, it depends upon what the charge
18 might be. You have got such a vague question here that he
19 could be looking at it differently than what you are looking
20 at.
21 BY MR. FLAXMAN:
22 Q. Now you testified here yesterday, isn't that right?
23 A. Yes, I testified.
24 Q. And do you remember page 739 of the transcript being asked
25 with respect to Question 107: "In order to arrest an
DeLopez - cross 1006
1 individual, would the sergeant have to know what that
2 individual was going to be charged with?"
3 And you gave the answer: "Yes, because the sergeant
4 would have to again establish the probable cause and the
5 reasonableness for that arrest."
6 Do you remember that question and that answer?
7 A. I remember that response to several questions.
8 Specifically to this one I don't, but, yes, I have stated that
9 for several questions.
10 Q. As you sit here now, is it your testimony that in order to
11 arrest an individual, the sergeant has to know what that
12 individual is going to be charged with?
13 A. I think I just answered that, counselor, that, yes, you
14 have to have an assumption that there is a charge and you have
15 probable cause based on the elements of that particular charge.
16 Q. Well, let's look at Question 106. Now in that scenario a
17 man has been arrested for stabbing another man to death, is
18 that right?
19 A. Correct.
20 Q. Is it important for the arresting officer to know whether
21 that's going to be first degree murder or second degree murder
22 when the officer makes the arrest?
23 A. Well, I think it is important for the officer to know that
24 given those five potential choices there that you may have a
25 choice there that's not even an arrestable offense.
DeLopez - cross 1007
1 Q. But --
2 A. And, therefore -- well, I am finishing my answer.
3 And, therefore, I think it is important to know the
4 distinction between the other four.
5 Q. Well, but my question, though, is it important for the
6 officer to know when he arrests somebody for stabbing another
7 man to death whether that person is going to be charged with
8 first degree murder or second decree murder?
9 It doesn't matter, does it?
10 A. That's not a choice here.
11 Q. My question to you, sir, it doesn't matter whether it is
12 going to be first degree murder or second degree murder, what
13 matters is that --
14 MS. PAPUSHKEWYCH: I am going to object to this. The
15 witness has said that second degree murder is not one of the
16 alternatives in this question.
17 Now if Mr. Flaxman wants to rephrase the question to
18 actually ask about one of the alternatives, that's fine. But
19 the witness has responded that second degree murder is not the
20 question, so that's not in fact the question asked by the item.
21 THE COURT: Why don't you rephrase the question.
22 MR. FLAXMAN: Okay.
23 THE COURT: Be sure it is not argumentative.
24 MR. FLAXMAN: Excuse me?
25 THE COURT: Be sure it is not argumentative.
DeLopez - cross 1008
1 MR. FLAXMAN: Of course.
2 THE COURT: You're going to have plenty of time for
3 final argument.
4 BY MR. FLAXMAN:
5 Q. When a police officer makes an arrest in a felony
6 situation, is it important for the officer to know that a crime
7 has been committed?
8 A. Of course.
9 Q. And is it important for the officer to know or to have a
10 reasonable basis to believe who has committed the crime?
11 A. Certainly.
12 Q. Okay. Is it as -- is it also important for the officer to
13 know exactly what offense the arrestee will be charged with?
14 A. Yes, it is important.
15 Q. Is it important for the officer to know whether a person,
16 an arrestee, will be charged with first degree murder or second
17 degree murder?
18 MS. PAPUSHKEWYCH: I am going to object to the
19 question again.
20 THE COURT: I'll sustain the objection in that it
21 doesn't relate to Question 106. Now you can rephrase that
22 question and make the same point, but they don't have second
23 degree referred to.
24 BY MR. FLAXMAN:
25 Q. Well, in a situation where a police officer arrests a man
DeLopez - cross 1009
1 for stabbing another man to death, is it important for the
2 police officer to know whether the arrestee would be charged
3 with first degree murder or involuntary manslaughter?
4 A. Well, it is important to know what charge will be sought.
5 But he won't know what the person will be charged with until he
6 is subsequently charged certainly.
7 Q. But is it important --
8 A. But it is important from the perspective, again, of the
9 conduct of the preliminary investigation, the gathering of
10 evidence, the gathering of witnesses, the potentiality for the
11 future impact of your decisions today on tomorrow's outcome of
12 an investigation and a prosecution.
13 So if you ask me if it is important, yes, it is
14 important. But it is important to know -- as I said yesterday,
15 it is important to know the elements of all offenses that you
16 are going to charge people with.
17 Q. Well, how would the officer act differently in conducting
18 the preliminary investigation if the officer believed the
19 person would be charged with first degree murder rather than
20 involuntary manslaughter?
21 A. Well, I don't know -- again, I don't have a lot of
22 specifics. I really can't give you a complete answer regarding
23 that. But a person who has committed first degree murder
24 certainly is one probably, and I am making an assumption based
25 on what limited facts I have here, a threat to more than just
DeLopez - cross 1010
1 the officer himself. He is a threat to the particular
2 arrestee's safety. He's a threat to other people in the
3 vicinity. There may be a need to process a scene perhaps
4 differently, I don't know.
5 Again, I am talking out of context here from a
6 question that's two and a half lines long.
7 Q. Well, isn't it true that a beat officer confronted with
8 the situation described in the first sentence of Question 106
9 would act exactly the same if he believed that the arrestee
10 would be charged with first degree murder as if he believed
11 that the arrestee would be charged with involuntary
12 manslaughter?
13 A. Could you rephrase that one time, please?
14 Q. Isn't it true that a police officer confronted with the
15 scenario described in the first sentence of Question 106 would
16 act exactly the same regardless of whether the officer believed
17 that the arrestee would be charged with first degree murder or
18 involuntary manslaughter?
19 MS. PAPUSHKEWYCH: I am going to object. That was
20 just asked and answered.
21 THE COURT: Objection overruled. He may answer.
22 BY THE WITNESS:
23 A. By act the same way, counsel, I need clarification on
24 that. What do you mean by act? Do you mean --
25 BY MR. FLAXMAN:
DeLopez - cross 1011
1 Q. Well, the officers would go out --
2 A. Conduct a preliminary investigation in the same manner?
3 Q. Would handcuff the offender, is that right, regardless of
4 what the charge was?
5 A. Well, he would certainly handcuff the person, yes.
6 Q. And the arresting officer would call for evidence
7 technicians regardless of what the charge was?
8 A. No, he would probably call for -- in a situation of loss
9 of life, he would probably call for the mobile crime
10 laboratory.
11 Q. And would he call for the detectives regardless of whether
12 it is first degree murder or involuntary manslaughter?
13 A. Yes.
14 Q. What would the officer do differently if it was -- he
15 believed it would be involuntary manslaughter rather than
16 murder?
17 A. I believe it is the presentation of and the charges that
18 are sought that would be presented differently, and different
19 charges would be sought based upon what is learned during the
20 preliminary investigation.
21 Q. In terms of the actions that the officer takes on the
22 scene, there is really no difference, is there, whether it is
23 first degree murder or involuntary manslaughter?
24 A. Well, again, you're referring to what? I mean, actions,
25 the processing of the scene itself?
DeLopez - cross 1012
1 Q. That's correct.
2 A. Preservation of the scene?
3 Q. Everything that the officer does at the scene of the
4 incident would be the same whether it is first degree murder or
5 involuntary manslaughter.
6 A. Well, I guess what I have to say is that in most serious
7 crime situations we expect the officer to conduct himself or
8 herself in the same manner, preserve all evidence necessary for
9 prosecution.
10 Q. Let me ask you to look at Question 108.
11 A. Okay.
12 Q. Is Choice D a felony?
13 A. Yes.
14 Q. And is Choice C a felony?
15 A. Yes.
16 Q. And is the actual seeking of approval to charge either C
17 or D something that would be done by a detective?
18 A. Well, again, the process begins with the arresting officer
19 having a charge which he is seeking to have approved or she is
20 seeking to have approved. It is presented by the detective to
21 the state's attorney.
22 Q. Now Question 117.
23 Who actually prepares charges for drug induced
24 homicide?
25 A. You mean who actually prepares the complaints?
DeLopez - cross 1013
1 Q. Right.
2 A. The complaints are prepared by a detective.
3 Q. So is the answer to Question 117 something that's
4 important for a detective to know?
5 A. For a detective to know?
6 Q. Yes.
7 A. Sure.
8 Q. Let me ask you to look at Question 120.
9 A. You didn't mean -- let me clarify. You didn't mean only a
10 detective, did you, counselor?
11 Q. No, my question was is Question 117 something important
12 for a detective to know?
13 A. Then my answer stands, yes.
14 Q. Question 120.
15 A. Okay.
16 Q. Now which is more important, knowing what to do when
17 you're confronted with this scenario or knowing what charges
18 would be sought against the arrestee if there is an arrestee in
19 this scenario?
20 A. Primary consideration for a responding officer first and
21 foremost should be preservation of life in a situation where
22 there is danger of a risk of loss of life.
23 Q. And that's the crucial element of this scenario, is that
24 right, to preserve life?
25 A. Well, no, that's not what the question states.
DeLopez - cross 1014
1 Q. No, but of the fact situation it is -- what is the most
2 important thing for the officer arriving on the scene is to
3 extricate the daughter from the situation, is that right?
4 A. No, that's not what the question asks.
5 Q. I am asking you from this scenario what -- it is important
6 for the officers arriving on the scene to extricate the
7 daughter from being held at knife point.
8 A. That's not an option that -- that's not a choice here,
9 counsel.
10 Q. I understand that. My question to you is that's what beat
11 officers arriving on the scene would attempt to do, is that
12 right?
13 A. In a hypothetical situation -- in a real life situation
14 out of context from this question --
15 Q. Yes, yes.
16 A. -- when you respond to the scene and there is potential
17 loss of life, a threat to loss of life, then you would
18 certainly ensure the -- preserve or protect life.
19 Q. And then if the -- if Bill was -- survived the attempt to
20 preserve life, he would be taken into custody, is that right?
21 A. Yes, he would.
22 Q. And he would be handcuffed and taken to the police
23 station?
24 A. Yes, he would.
25 Q. And then at the police station the detective would be
DeLopez - cross 1015
1 called, is that right?
2 A. Yes, they would.
3 Q. And the detectives in consultation with the state's
4 attorney would figure out what Bill should be charged with, is
5 that right?
6 A. Not necessarily.
7 Again you have a set of circumstances and facts which
8 you must articulate to a detective for presentation to a
9 state's attorney.
10 Q. Now when the arresting officer articulated facts to the
11 detective, would the arresting officer describe what had
12 happened, what the scenario was?
13 A. Of course he will.
14 Q. And the arresting officer -- well, would -- and from those
15 facts the detective would make a conclusion about what was the
16 appropriate charge, is that right?
17 A. Not necessarily so. The situation could be that an
18 officer and supervisor would present to a detective a set of
19 circumstances, we feel that this is the charge that we have
20 here, this is the charge we're seeking, and then they will
21 discuss further whether or not there is enough evidentiary
22 information there to present that case for the approval of the
23 charges.
24 Q. Okay. And the detective -- it is part of the detective's
25 job to know about elements of offenses, is that right?
DeLopez - cross 1016
1 A. Yes.
2 Q. Now Question 122, have you ever come across a situation
3 involving this type of conduct in your work as a Chicago police
4 officer?
5 A. I need a second to read this.
6 Okay. The question, please.
7 Q. Have you ever come across this conduct in your work as a
8 Chicago police officer?
9 A. I don't recall.
10 Q. Do you ever know any Chicago police officer who has come
11 across this precise type of conduct?
12 A. I honestly don't recall, counselor.
13 Q. Let me ask you to look at Question 123.
14 The decision of what charges are made, that's made by
15 the state's attorney, is that right?
16 A. The decision to charge with a felony?
17 Q. That's correct.
18 A. Is made by the state's attorney.
19 Q. And the state's attorney has significant prosecutorial
20 discretion, is that right?
21 A. Yes, they did.
22 Q. In some cases the state's attorney, even though all the
23 elements are present of a felony, the state's attorney would
24 decline to approve felony charges, is that right?
25 A. They may, correct.
DeLopez - cross 1017
1 Q. Now Question 123 asks whether a particular person would be
2 charged with a felony, is that right?
3 A. Yes, it does.
4 Q. Is it part of the job of a Chicago police officer to know
5 when the state's attorney will cause somebody to be charged
6 with a felony?
7 A. I don't think it is possible that you could know the mind
8 set and the decision that an assistant state's attorney
9 assigned to felony review would have prior to receiving the
10 evidence that was presented for the approval of charges.
11 Q. So is it correct that it is not important for a Chicago
12 police sergeant to know whether a particular person would be
13 charged with a felony for the first time offense of A, B, C, D
14 or E?
15 A. No, I am not saying it is not important. I am saying you
16 don't know what the assistant state's attorney's decision might
17 be.
18 Q. So answering that question correctly requires you to
19 speculate about what a state's attorney would do, is that
20 right?
21 A. It requires you to know the elements necessary for
22 charging someone on the first offense with a felony.
23 Q. Well, it says would be charged, not could be charged,
24 doesn't it?
25 A. Well, I think that may be semantics, but the knowledge
DeLopez - cross 1018
1 requested is which of these would be a felony for the first
2 offense, the way I read it, and then that gives me a specific
3 response to that question.
4 Q. Does it say which would be a felony or does it say would
5 be charged with a felony?
6 A. Would be charged with a felony for the first time offense.
7 Q. And as you sit here, is there any way of telling -- of
8 knowing whether a particular state's attorney would approve
9 felony charges for a particular person's first time offense?
10 A. No, I couldn't know that. I couldn't know if a state's
11 attorney would make a decision --
12 THE COURT: Well, can I ask this, is there a variation
13 in handling an arrest and how it is processed whether it is a
14 misdemeanor or a felony? Because isn't that what this is
15 testing?
16 MR. FLAXMAN: This --
17 THE COURT: Because we don't have all the facts. We
18 don't know what we are dealing with. And they are all -- these
19 are alternatives.
20 But the test is to determine whether the arresting
21 officer knows whether it is a felony or a misdemeanor, isn't
22 that right?
23 MR. FLAXMAN: That's certainly an argument.
24 THE COURT: So I would ask the officer, if I could
25 just interrupt for one second, is there a difference between
DeLopez - cross 1019
1 the handling of an arrest if it is a misdemeanor or a felony
2 that is at least likely to be charged?
3 THE WITNESS: Yes. Again, it gets back to my
4 responses with regard to knowing the elements. You must also
5 identify what type of evidentiary material you are going to
6 need to present.
7 You're going to have to know how to focus your
8 investigation. You're going to have to be aware of the proper
9 people to notify in the chain of notification for a felony
10 versus a misdemeanor. A misdemeanor does not require a
11 presentation to an assistant state's attorney, therefore, you
12 present the probable cause situation to your watch commander
13 for approval of a charge.
14 BY MR. FLAXMAN:
15 Q. Is -- do you know what pandering is as is described -- as
16 is described in the Illinois statutes?
17 A. I can't give you a direct quote and cite.
18 Q. Well, is it important for a Chicago --
19 A. But I can tell you generally.
20 Q. Okay. Tell us in general terms what pandering is.
21 A. Pandering is arranging for an act of prostitution by
22 another person with another person.
23 Q. Does everyone who engages in that conduct get charged with
24 pandering in Chicago?
25 A. I can't tell you that. You're asking me to speculate. I
DeLopez - cross 1020
1 can't answer that.
2 Q. Well, isn't it true that the felony charge of pandering is
3 not the most common charge when somebody is arrested in a
4 situation where they arranged or offered to arrange a situation
5 in which a person may practice prostitution?
6 A. I don't know. I don't have access to that data. Again,
7 I'd be speculating. I don't have that answer.
8 Q. Now if Amy would be charged with a felony for a first time
9 offense of pandering, would the detectives be called?
10 A. Yes, you would make a notification.
11 Q. Let me ask you to look at Question 124.
12 A. Okay.
13 Q. Now is there an offense of false personation?
14 A. I don't know. I'd have to refer to the statute before I
15 could answer that question.
16 Q. Is there an offense of aggravated false personation?
17 A. Yes, there is.
18 Q. Is it -- well, do you know if it is important for -- well,
19 you don't know if there is an offense of false personation, is
20 that right?
21 A. Well, just by reason of the charge, the offense, to be
22 aggravated, it is compounded, there must be a primary offense
23 that can be compounded to be aggravated.
24 Q. Do you know what the difference is?
25 A. Do I know what the difference is?
DeLopez - cross 1021
1 Q. Yes.
2 A. In order to be charged with this particular offense, what
3 other element is necessary? What element is necessary?
4 Q. Do you know the difference between aggravated false
5 personation and false personation?
6 A. Do I know?
7 Q. Yes.
8 A. No, I don't have specific knowledge of that, counselor.
9 Q. Well, is it important for a sergeant to know the
10 difference between false personation and aggravated false
11 personation?
12 A. I think, yes, because he is more likely to encounter this
13 type of situation in an advisory capacity with a police
14 officer.
15 Q. Well, do you supervise sergeants?
16 A. Indirectly.
17 Q. Are you able to do your job adequately?
18 A. Am I able to do my job?
19 Q. Yes.
20 A. Certainly.
21 Q. Now is the question whether somebody should be charged or
22 would be charged with aggravated false personation or false
23 personation a decision that's made by a state's attorney?
24 A. Again, the ultimate charge itself, the final charging,
25 would that be the decision of an assistant state's attorney?
DeLopez - cross 1022
1 Q. Yes. Do you know whether or not there is a felony charge
2 of false personation?
3 A. Well, again without reading the cite and the circumstances
4 required for somebody to be a misdemeanor or felony, I can't
5 tell you that.
6 Q. Well, let me ask you to look at 720 Illinois ILCS 532-531,
7 which I will show to you a minute.
8 Do you see that?
9 A. 532, 5.1?
10 Q. Right.
11 A. Yes.
12 Q. Is that offense the felony offense of false personation?
13 A. Yes, it does.
14 Q. And then the next section defines the felony offense of
15 aggravated false personation, is that right?
16 A. Yes, it does.
17 Q. Could you tell us, if you can, why it is important for a
18 sergeant to know the difference between aggravated false
19 personation and false personation?
20 A. Well, in the case of aggravated false personation, you
21 have an added element here of committing a felony in the course
22 of this false personation, which elevates this to a Class 3
23 felony from a Class 4 felony.
24 Q. Now but in terms of making the arrest, is it -- would
25 there be any difference in the way the police officer acted in
DeLopez - cross 1023
1 making it an arrest for a Class 4 felony as opposed to a Class
2 3 felony?
3 A. Well, in this particular instance there is an additional
4 element here of another offense, another felony. The
5 difference would be that there would be an additional
6 investigation in the circumstances of that felony and gathering
7 of evidence and information regarding that particular act that
8 was committed by this person.
9 Q. But let's look at Question 124. A police officer who is
10 confronted with that situation where Event E has occurred would
11 make an arrest for attempt to commit a felony, is that right?
12 A. Sure.
13 Q. Then the arrestee would be taken down to the police
14 station, is that right?
15 A. Yes.
16 Q. And then at the police station the police officer could
17 look up in the book whether the person should be charged -- or
18 could be charged with aggravated false personation or false
19 personation, is that right?
20 A. The officer could? Is that what you are saying, the
21 officer could?
22 Q. That's right.
23 A. Theoretically he could, certainly.
24 Q. And -- now Question 125, is this another one of those
25 scenarios where the detectives or youth officers are involved
DeLopez - cross 1024
1 in?
2 A. Give me one second to read, counselor.
3 Q. Okay.
4 A. I am ready.
5 Q. Question 125, was a youth officer involved in this
6 situation?
7 A. A youth officer would be involved in the subsequent
8 investigation.
9 Q. Would detectives be involved?
10 A. Yes, they would.
11 Q. And would the arresting officer be the person who sought
12 approval from a state's attorney for the filing of felony
13 charges?
14 A. Not from the state's attorney, no. But, again, as I
15 stated previously, my answer has to be taken in context of the
16 process of seeking approval, were does it begin.
17 Q. The Question 126, would the field sergeant in this
18 scenario have the discretion not to make an arrest?
19 A. Not to make an arrest?
20 Q. That's correct.
21 A. The sergeant should make an arrest of any offense that
22 comes into his or her area of purview.
23 Q. Should the sergeant be arresting Alan and Alan's
24 girlfriend in this scenario?
25 MS. PAPUSHKEWYCH: I'll object. That's not the
DeLopez - cross 1025
1 question being sought.
2 THE COURT: Well, I want to let each side be sure they
3 have a sufficient leeway to present their own case. I'll
4 overrule the objection and permit the witness to answer.
5 BY THE WITNESS:
6 A. Could you restate that, please, counsel?
7 BY MR. FLAXMAN:
8 Q. A field sergeant confronted with the scenario of Question
9 126, should the field sergeant arrest the 21-year-old male as
10 well as the 17-year-old girlfriend?
11 A. Well, the question is stating that --
12 Q. That's not -- I am asking -- my question to you is
13 confronted with that scenario, should the sergeant arrest both
14 the man and the woman?
15 A. I am trying to explain my -- I am trying to respond to
16 your question.
17 The arresting officer -- from this, I am taking it,
18 the arresting officer has made an arrest. It doesn't say who
19 he has or has not arrested. It says that he should seek
20 approval to charge Alan with the offense of A, B, C, D or E.
21 Q. My question to you is should the field sergeant who
22 observed two people doing what's described in this question
23 arrest both of them?
24 A. My response would be that if the field sergeant observed
25 some improper action, then he should take action and make an
DeLopez - cross 1026
1 arrest. He could arrest both parties.
2 Q. And should he in this scenario have -- arrest both
3 parties?
4 A. Well, I am not sure it says he didn't. I mean, I don't
5 understand what you are asking me.
6 Q. I am asking you -- if you told us that when a sergeant
7 observes a violation of the law, he should make an arrest, is
8 that correct?
9 A. Correct.
10 Q. And you said if he saw the 21-year-old male in the
11 situation, he should arrest the 21-year-old male, is that
12 right?
13 A. Correct.
14 Q. And my question to you is should he also arrest the
15 17-year-old girlfriend in the situation?
16 A. If he observed an illegal act being committed by that
17 particular person, then he should effect an arrest?
18 Q. If he observed the precise act that is described in the
19 first sentence, should he arrest the 17-year-old girlfriend as
20 well as the 21-year-old male?
21 A. You are asking me should he?
22 Q. Yes.
23 A. Yes, he should.
24 Q. Okay. Is it important for a field sergeant to know the
25 correct answer to Question 126 the first day on the job?
DeLopez - cross 1027
1 A. Is it important to him to know this?
2 Q. The first day on the job, right.
3 A. It could be very important to him.
4 Q. Is this something that could be covered in training for
5 sergeant before they go out to work in the field?
6 A. I believe knowledge of statutes, ordinances and department
7 directives are things that are in general intended to be
8 reviewed during pre-service sergeant's training.
9 Q. No.
10 A. There isn't enough time during pre-service sergeant's
11 training to go into all the intricacies of the basic recruit
12 training program that they have gone through already. It is a
13 refresher course.
14 Q. So what you are telling us is that all police officers
15 should know the answers to all of these questions without
16 having to study them if they have successfully completed
17 recruit training?
18 A. I am not saying without studying. I mean, when you are
19 talking about a competitive exam, you should always study for a
20 competitive exam.
21 Q. Why is that?
22 A. Because it's --
23 THE COURT: Because they are human beings. Let's --
24 can we move on?
25 MR. FLAXMAN: Yes, Judge.
DeLopez - cross 1028
1 THE COURT: We really ought to relate strictly to the
2 stuff that's relevant here. We are running way past the time.
3 I don't know when we're going to finish.
4 MR. FLAXMAN: I'll come to the end.
5 BY MR. FLAXMAN:
6 Q. Question 137.
7 This is one of those areas where --
8 A. 137, counsel?
9 Q. 137. -- practice and law diverge, is that right?
10 A. Okay.
11 Q. Is that right?
12 A. Pardon me?
13 Q. Question 137 is an area where practice and law diverge.
14 A. Well, I am not sure that in all cases that's a correct
15 statement, but there are times when individuals in funeral
16 processions do not comply with the law.
17 Q. All right. Let me just try to come to the end.
18 THE COURT: My --
19 MR. FLAXMAN: Judge --
20 THE COURT: I don't want to limit you, but, you know,
21 there is just so much on each question, and then the rest of it
22 is argument, arguing.
23 MR. FLAXMAN: Judge, I --
24 THE COURT: Okay.
25 MR. FLAXMAN: I understand.
DeLopez - cross 1029
1 BY MR. FLAXMAN:
2 Q. Question 111, this will be the last question we do.
3 THE COURT: Question 111?
4 BY MR. FLAXMAN:
5 Q. 1-1-1, 111.
6 A. Okay. I am ready.
7 Q. Now you told us yesterday, I think, that it is important
8 for a sergeant to know that the correct answer to this question
9 is Choice E, is that right?
10 A. No, Choice A.
11 Q. Okay. Is it your understanding that Choice E is
12 permissible under the statutes of the State of Illinois?
13 A. Correct.
14 Q. And why is that?
15 A. Because you cannot normally be charged with just the
16 offense of carrying the firearm on property at a place where
17 you are employed without certain exceptions. One exception
18 being the sale of alcohol.
19 Q. Well, is it -- are you permitted -- is a person who works
20 at a gas station permitted under the Illinois statutes to carry
21 a pistol on or about his person?
22 A. I believe that is correct, counselor, that on the
23 premises, on the private property portion of the gas station.
24 Q. Is that -- could you --
25 A. A person over the age of 18 we're talking about.
DeLopez - cross 1030
1 Q. Okay. If I show you the Illinois statute, could you point
2 that out to me where that provision applies?
3 Let me show you 720 ILCS 5-24, 1.
4 A. This is a long cite, so I have to go through several
5 sections of it.
6 Q. Well --
7 (Brief interruption.)
8 THE COURT: I don't believe that we are testing this
9 witness's knowledge on this specific provision of the law so
10 that if counsel for the city --
11 THE WITNESS: Well, your Honor --
12 THE COURT: -- knows what the law is --
13 THE WITNESS: -- I can't find the exact cite, your
14 Honor.
15 THE COURT: -- at least they can talk with counsel.
16 BY THE WITNESS:
17 A. I believe in general that there is an exception when upon
18 your own land or your place of business. I can't find the cite
19 right now.
20 MS. PAPUSHKEWYCH: If I could --
21 BY MR. FLAXMAN:
22 Q. Let me direct you to --
23 MS. PAPUSHKEWYCH: -- streamline.
24 BY MR. FLAXMAN:
25 Q. -- 24-1, Section 4.
DeLopez - cross 1031
1 MS. PAPUSHKEWYCH: A-4.
2 MR. FLAXMAN: A-4, thank you.
3 BY MR. FLAXMAN:
4 Q. "A person commits the offense of unlawful use of weapon
5 when he knowingly carries or possesses in any vehicle or
6 concealed on or about his person, except when on his land or in
7 his abode or fixed place of business, any pistol, revolver,
8 stun gun or taser or other firearm."
9 Is that the particular provision that you are looking
10 for?
11 A. That's the particular section I was looking for, yes.
12 Q. Now is it your understanding -- how long have you been a
13 police officer?
14 A. 25 years.
15 Q. And you were the head of the training division?
16 A. Yes.
17 Q. And you are familiar with the statutes in the State of
18 Illinois?
19 A. Fairly familiar, yes.
20 Q. Is it your understanding of this statute that a person
21 working at a gas station may lawfully -- person over the age of
22 18 working at a gas station may lawfully carry a pistol on his
23 or her person without violating the unlawful use of weapons
24 statute of Illinois?
25 A. I think if you ask me how I read the particular section
DeLopez - cross 1032
1 here, it is his or her own abode or a fixed place of business.
2 Q. So it is your understanding that fixed place of business
3 means someplace where you work, is that right?
4 A. That's correct.
5 Q. Are you aware that that statute has been construed by the
6 Illinois courts --
7 A. Pardon me? Am I what?
8 Q. -- that that statute has been construed by Illinois
9 courts --
10 A. In what --
11 Q. -- and that the construction by the Illinois courts has
12 limited that provision to places in which the employee has a
13 proprietary interest?
14 A. Am I aware of that? No, I am not aware of that.
15 Q. Well, is it important for --
16 MS. PAPUSHKEWYCH: Could we have some foundation as to
17 when this law became effective since we -- I am not familiar
18 with it. I mean, was it the law in 1993 --
19 Very good, 1983.
20 THE COURT: '83.
21 MS. PAPUSHKEWYCH: Is this my copy?
22 MR. FLAXMAN: Sure.
23 MS. PAPUSHKEWYCH: Thank you.
24 BY MR. FLAXMAN:
25 Q. So if we assumed that the Illinois courts have construed
DeLopez - cross 1033
1 the law, as I have described it so that you can only possess a
2 pistol on your person while working at a fixed place of
3 business when you have a proprietary interest in that business,
4 then Choice E is correct for Question 111, is that right?
5 A. It is possible. I really can't answer that. Again,
6 because the question -- the instructions state to pick the most
7 correct answer --
8 Q. Okay.
9 A. -- based upon what circumstances are given in that stem.
10 Q. Well, A is correct, is that right?
11 A. Correct.
12 Q. And --
13 THE COURT: Do you have a cite to that court decision?
14 MR. FLAXMAN: Oh, sure. Let me hand the Court a copy.
15 People versus Freed, 112 Illinois Appellate Third, 449, 445
16 Northeast 2d 592 from the Appellate Court, Fourth District
17 1983.
18 THE COURT: Okay. Good. And that's dated February 8,
19 1983?
20 MR. FLAXMAN: That's correct.
21 BY MR. FLAXMAN:
22 Q. Now you told us yesterday that Choice E would lead to a
23 wrongful arrest for Question 111. Do you remember that
24 testimony?
25 A. Yes, based upon my explanation I just gave for that
DeLopez - redirect 1034
1 particular portion of the statute.
2 Q. And do you think perhaps you should take a refresher
3 course in Illinois criminal law?
4 A. Well, counselor, I didn't study for this exam, and I don't
5 have the primary responsibility for ensuring that I am aware of
6 every cite and every situation.
7 Q. Now looking at that exhibit, of the people who did study
8 for the exam more than 50 percent chose Choice E, isn't that
9 right?
10 A. Let me refer to the results.
11 Q. Correct?
12 A. Correct.
13 MR. FLAXMAN: Okay. I have no further questions.
14 THE COURT: All right. Redirect, and then we'll take
15 a break.
16 REDIRECT EXAMINATION
17 BY MS. PAPUSHKEWYCH:
18 Q. Could you please -- do you still have the exhibits
19 questions? Okay.
20 Would you please direct your attention to Question
21 Number 84. Have you had a chance to review it?
22 A. Yes, I have.
23 Q. I'm going to show you what is going to be part of
24 Defendant's Stipulated Exhibit K-55.
25 And on Question 84 is the correct answer to the
DeLopez - redirect 1035
1 question Answer B?
2 A. Yes, it is.
3 Q. And where in Departmental Special Order 93 -- I'm sorry, I
4 can't read that -- but it is the first page of Defendant's
5 Exhibit K-55 is that answer located?
6 A. Well, it begins in 3-B.
7 Q. What does that state?
8 A. "Secured custody is detaining a person in a locker room, a
9 police lock-up, a cell or handcuffing a person to a stationary
10 object such as a cuff rail or a desk."
11 Q. And could you read Roman Number 4 A which is under
12 procedures.
13 A. A 17-year-old arrestee taken into custody for a status
14 offense only will not be placed into secured custody.
15 Q. And what is a status offense?
16 A. That is an offense that is -- when committed by a 17 year
17 old would not be illegal was committed by an adult by
18 definition.
19 Q. And is the type of offense described in Question 84 a
20 status offense?
21 A. Yes, that's a -- that is one of the status offenses.
22 Q. And are examples of status offenses listed in the
23 definitional section under 3A?
24 A. Yes, they are.
25 Q. And so the answer to that question is directly on the
DeLopez - redirect 1036
1 first page of this general order?
2 A. Yes, it is.
3 Q. Could you turn to Question 91, please.
4 MR. FLAXMAN: Judge, we're going to be stipulating
5 that the answers to all of these questions are found in
6 particular general orders, and the city has this 30-page
7 stipulation of all the general orders, and I don't know --
8 THE COURT: Well, do we know -- I mean, if clearly it
9 is going to be covered by stipulation, we don't need to take
10 the time to do it orally in court.
11 MS. PAPUSHKEWYCH: That's fine. Every single one of
12 the answers we will have the underlying documentation as to the
13 general order, special order or Illinois Compiled Statute.
14 THE COURT: Does the stipulation indicate any mistakes
15 in any of the questions?
16 MS. PAPUSHKEWYCH: No, the stipulation in fact shows
17 where the wrong answers also are.
18 MR. FLAXMAN: That thing about wrong answers will be
19 argument, I suspect, based on the source material that we have.
20 But we will be stipulating that these questions -- that these
21 are the general orders --
22 THE COURT: So it is a question of whether there is
23 one or more than one correct answer.
24 MR. FLAXMAN: That's correct.
25 MS. PAPUSHKEWYCH: So that's fine, your Honor. We do
DeLopez - redirect 1037
1 not have to go through this witness on the fact that each one
2 of these answers are within the source material that will be
3 attached.
4 THE COURT: If that's covered by stipulation, there is
5 no need to duplicate it at this time.
6 MS. PAPUSHKEWYCH: Fine. Fine. I have one -- just
7 one other question then.
8 THE COURT: Okay.
9 BY MS. PAPUSHKEWYCH:
10 Q. Why is it important for a sergeant to know the difference
11 between whether a person is being arrested for a felony or a
12 misdemeanor?
13 A. Well, it, as part of the responsibility and role of a
14 sergeant, they are responsible to direct and guide and advise
15 subordinate personnel. In the conduct of that direction and
16 that supervision, they are going to have to explain the proper
17 procedures to follow to investigate alleged acts of crimes or
18 criminal activity or the proper way to begin conducting that
19 preliminary investigation to establish the elements of a crime,
20 probable cause to effect an arrest, the evidentiary process,
21 the gathering process. And ultimately the case itself needs to
22 be presented to someone for approval of charging.
23 Q. And is it important for a sergeant to know the -- is it
24 more important for the sergeant to know what the law is than,
25 for example, a police officer in your opinion?
DeLopez - redirect 1038
1 A. Well, I think an understanding of the law is equally
2 important for anyone that is going to effect an arrest and take
3 some enforcement action certainly.
4 Q. And a sergeant being the supervisor of the patrol officer,
5 does that sergeant have any specific function in terms of
6 ensuring the propriety of the arrest and investigation?
7 A. Yes.
8 Q. And what is that function?
9 A. Review and approval in some cases for the actions taken by
10 a police officer, the material presented in a case report which
11 documents the preliminary investigation of a particular
12 incident.
13 Q. And does -- who fills out the arrest report on the scene?
14 A. The arresting officer.
15 Q. Who reviews that arrest report?
16 A. Well, it would be reviewed by a supervisor.
17 Q. And what -- which type of supervisor would do that review?
18 A. Well, the sergeant and then ultimately the watch commander
19 also.
20 Q. And what is contained in the arrest report in terms of
21 narrative?
22 A. The narrative establishes your probable cause to make the
23 arrest.
24 Q. And in reviewing the arrest reports, where is the sergeant
25 when he reviews the arrest report?
DeLopez - 1039
1 A. Well, he would be in the field.
2 Q. And could he -- where else could he be?
3 A. He could be sitting at his station desk. He could be in
4 the station in a facility itself. You know, again it depends
5 on the circumstance of the situation.
6 Q. And do you provide that book, the Illinois Compiled
7 Statutes, for each sergeant when they are traveling in their
8 car in the beat?
9 A. No, we don't.
10 MS. PAPUSHKEWYCH: I have no further questions.
11 THE COURT: All right. Any final cross examination
12 questions?
13 MR. FLAXMAN: No, Judge.
14 Before we take our break --
15 THE COURT: All right.
16 MR. FLAXMAN: -- I have a psychologist that I would
17 like to put on out of order after the break if that's
18 agreeable.
19 MS. GLINK: We would like -- we would not agree to the
20 expert on the grounds that the opinion that we would move to
21 bar her from testifying because it does not offer anything to
22 this case. The unrebutted testimony of the only industrial
23 psychologist who is going to be testifying before this Court is
24 that in his opinion the fact that this exam did not directly
25 test for listening skills in no way affected his opinion that
DeLopez - 1040
1 the test tested for significant portions of the job domain.
2 There is no counter to that opinion about this test
3 and that is tested for a significant portion of the domain. So
4 whether or not we have a psychologist who agrees or disagrees
5 with whether or not listening skills is related to reading
6 comprehension is really irrelevant to the Judge's determination
7 in this case as to whether or not the test at issue tested for
8 significant portions of the job domain. So I don't see how it
9 is useful to this Court.
10 THE COURT: Well, it seems to me that -- I don't know
11 if I fully comprehend what you have just said. But it seems to
12 me that content validity is an issue in this case, so that
13 testimony as to the effectiveness or ineffectiveness or the
14 coverage of a question as to what matters it may test or relate
15 to is relevant.
16 MS. GLINK: If I may, your Honor --
17 THE COURT: And so while it certainly may not be
18 conclusive to a decision, it seems to me that the area of the
19 testimony would be relevant.
20 MS. GLINK: If I may, your Honor --
21 THE COURT: The only question is whether she is
22 qualified to testify.
23 MS. GLINK: If I am correct, your Honor, this witness
24 is not being called to elicit an opinion as to whether or not
25 this examination covered a significant portion of the job
DeLopez - 1041
1 domain. That's the issue before this Court.
2 She is simply being elicited for testimony with regard
3 to whether reading skills are linked to listening skills,
4 not -- she has no opinion about the sergeant's exam, about you
5 comprehensiveness of the sergeant's exam, about the adequacy of
6 a job analysis, about the comprehensiveness of the job
7 analysis. She has no opinion whatsoever about this process,
8 only the small question as to whether or not reading
9 comprehension is linked to listening skills, and that's really
10 not relevant here.
11 THE COURT: It seems to me it is relevant. It isn't
12 conclusive, but it seems to me it is relevant evidence. Again,
13 it is very hard to, without having all of the evidence and
14 hearing all the arguments and reading all the cases, to fully
15 determine some of these questions. But it seems to me that
16 it's -- the indication are -- is sufficient that it is
17 relevant, that I would overrule the objection and permit the
18 testimony to come in for whatever it is worth. It always can
19 be subject to a motion to strike subsequently if that's
20 appropriate.
21 But it seems to me that at least the initial
22 appearance would indicate sufficient relevance for the
23 testimony to be done. So the question then is whether it is
24 going to create an unfair hardship here if she is brought in
25 out of order.
1042
1 MS. GLINK: We certainly have had no chance to prepare
2 for a cross examination in this case.
3 THE COURT: Well, we may hear her direct, and then
4 take a break for -- for preparation of cross examination. It
5 is a rebuttal witness because I don't see this as an abuse to
6 take advantage of the final pretrial order and -- or the --
7 this is a preliminary injunction hearing.
8 MS. GLINK: That's right, your Honor.
9 THE COURT: -- but of the normal disclosures that are
10 requested so that we can have a smooth presentation. It seems
11 to me it is true rebuttal, and so it -- I would permit that.
12 How long do you anticipate her direct?
13 MR. FLAXMAN: Five minutes, Judge. And I promised her
14 -- she has a funeral to go to, which she wants to leave at
15 noon, I think, to get to the funeral, which is not a planned
16 occurrence for this trial.
17 MS. PAPUSHKEWYCH: Well, your Honor, I guess we should
18 go ahead and hear the testimony, and then we will be --
19 THE COURT: What we will do -- we're through with this
20 witness's testimony then. So, again, you're excused.
21 THE WITNESS: Thank you, your Honor.
22 (Witness excused.)
23 THE COURT: We'll take a break of, say, ten minutes.
24 MS. PAPUSHKEWYCH: Yes, then, your Honor, obviously
25 depending on what she says, it may not be by noon that we can
1043
1 finish with this.
2 THE COURT: She can testify, and then if you want an
3 additional break to help consider what your cross examination
4 might be, we'll give you that additional break.
5 MS. PAPUSHKEWYCH: Let us do that.
6 THE COURT: But I am going to make every effort to
7 finish by noon if possible.
8 MR. FLAXMAN: Thank you.
9 THE COURT: Okay. We will take a short recess at this
10 time.
11 (Brief recess.)
12 THE COURT: If you are ready to call your next
13 witness.
14 MR. FLAXMAN: It turns out she has to leave here at
15 11:45 to drive five people to a funeral. If we're not done
16 with cross, she can come back tomorrow at 10:30, or maybe we
17 can do the whole thing tomorrow at 10:30. I don't know how
18 long cross will be.
19 THE COURT: Well, why don't we see.
20 MR. FLAXMAN: Okay.
21 THE COURT: But if she -- I'll release her whenever
22 she says she has to leave.
23 MR. FLAXMAN: There are people waiting for her to
24 drive to Hyde Park.
25 THE COURT: Okay. As long as she is available
Lawrence - direct 1044
1 tomorrow.
2 (Witness sworn.)
3 MYRA LAWRENCE, PLAINTIFFS' WITNESS, DULY SWORN
4 DIRECT EXAMINATION
5 BY MR. FLAXMAN:
6 Q. And Myra, is that M-y-r-a?
7 A. That's right.
8 Q. What is your business or occupation?
9 A. I am a clinical psychologist.
10 Q. And are you employed?
11 A. Yes, I am employed.
12 Q. By whom are you employed?
13 A. I am employed by the Illinois School of Professional
14 Psychology. I am also in private practice, and I consult at
15 different agencies.
16 Q. Now to become a clinical psychologist, did you obtain any
17 advance degrees?
18 A. Yes, I have my doctorate in clinical psychology.
19 Q. When did you obtain that?
20 A. 1987.
21 Q. In addition to teaching and having the doctorate, have
22 you -- do you do research?
23 A. I am actually in the process of doing research unrelated
24 to this material.
25 Q. Have you published any research?
Lawrence - direct 1045
1 A. No, I have not.
2 Q. Okay. Do you teach -- could you tell us briefly what
3 courses you teach?
4 A. I teach courses in development and psychological
5 assessment and forensics and child sexual abuse.
6 Q. What level students do you teach these courses?
7 A. I teach doctoral students.
8 Q. They are graduate level --
9 A. They are all graduates, yes.
10 Q. In the course of your work as a clinical psychologist and
11 a --
12 THE COURT: Do we know what school that is?
13 BY MR. FLAXMAN:
14 Q. Okay. Could you identify the school?
15 A. The Illinois School of Professional Psychology.
16 Q. Is that in Chicago?
17 A. Yes, it is.
18 Q. What's your position there?
19 A. I am a professor.
20 Q. In your work as a professor at the Illinois School of
21 Professional Psychology teaching psychological assessment, have
22 you become familiar with testing reading comprehension?
23 A. Yes.
24 Q. Have you become familiar with testing the ability to
25 understand oral communications?
Lawrence - voir dire 1046
1 A. Yes.
2 Q. Does a test of reading comprehension measure the ability
3 to understand oral communication?
4 MS. GLINK: Your Honor, before the witness answers, I
5 would like the plaintiff to establish a little bit more
6 foundation how she became familiar with these tests and what
7 her experience has been with these tests and when she became
8 familiar with these tests and in what context these tests were
9 used.
10 THE COURT: Do you wish to voir dire her on her
11 qualifications? We'll permit you to do that. We'll interrupt
12 her testimony for you to voir dire her on her qualifications.
13 VOIR DIRE EXAMINATION
14 BY MS. GLINK:
15 Q. You mentioned that you became familiar with testing of
16 reading comprehension. Can you explain what you meant by
17 familiar with testing of reading comprehension?
18 A. Well, my original training in testing began in 1974, which
19 is when I took the initial courses, and I have been working
20 with testing and reading comprehension both for children and
21 adults since that time.
22 Q. Can you tell me your experience with testing reading
23 comprehension for adults?
24 A. Well, I do the same thing for adults in all the adult
25 assessments actually.
Lawrence - voir dire 1047
1 Q. Can you explain what that is, what you do with adults in
2 terms of as assessment?
3 A. A full assessment -- well, actually I only do full
4 assessments. And full assessments include an entire battery
5 both of objective and projective measures.
6 But for reading assessment in particular, I would do
7 that if we are going to evaluate someone with respect to job
8 suitability. And I do that for the Interpersonal Learning
9 Center at Fillmore.
10 Q. When you say job suitability, can you explain who you are
11 conducting these tests on and is it for a particular position?
12 A. Actually for some it is. Most of the -- many of the
13 people who we evaluate are people who are in a job training
14 program. But the other assessments that I supervise are for
15 police officers and Berwyn police cadets.
16 Q. Can you explain your experience in Berwyn?
17 A. I have been at the Fillmore Center since 1976. I have
18 been supervising there since 1984. We have been for the last
19 probably eight years doing assessments for the Berwyn police
20 asking us to assess their cadets.
21 Q. And that would be for individuals who are applying to the
22 police department?
23 A. Individuals who have already been accepted. We can't test
24 before they are hired.
25 Q. Have you ever evaluated the reading comprehension for any
Lawrence - voir dire 1048
1 promotional examination?
2 A. No.
3 Q. And what is your experience with testing for oral
4 communication, ability to understand oral communication?
5 A. Well, it falls within the same parameters that I was just
6 describing. We do it in the same circumstances.
7 Q. What is the purpose of this evaluation for Berwyn?
8 A. Well, I do testing many places, but the purpose there is,
9 again, in terms of people's strengths and weaknesses with
10 respect to different job capacities because they are in a job
11 training program.
12 Q. Is this testing being done in any way to evaluate
13 candidate's suitability for a promotional position within any
14 police department?
15 A. No, as I said before that's not the case.
16 Q. Have you ever conducted any types of test for listening
17 skills or reading comprehension for any promotional position in
18 any employment related job?
19 A. No.
20 Q. Can you describe for me the kinds of tests you actually
21 give to these people, to the -- when you're assessing somebody
22 for a position? Can you describe for me the actual test that
23 you give?
24 A. Well, it depends on which position.
25 Q. How about --
Lawrence - voir dire 1049
1 A. What do you have in mind?
2 Q. Well, you said you assess an adult.
3 A. Uh-huh.
4 Q. Can you give me --
5 THE COURT: You are talking about a cadet for the
6 Berwyn Police Department.
7 BY MS. GLINK:
8 Q. Why don't you describe for me the type of test that you
9 are giving to assess the reading comprehension of a cadet in
10 Berwyn.
11 A. Well, I am not necessarily going to assess their reading
12 comprehension because that may not be part of what the Berwyn
13 Police Department is interested in.
14 What we are doing for them are partial testings in
15 order to determine the suitability of their cadets.
16 Q. When you say suitability, what do you mean by that?
17 A. They are looking for tests like the MMPI to look at
18 characterological dysfunction. They are also looking for basic
19 IQ estimates.
20 Q. These are psychological testing --
21 A. Uh-huh.
22 Q. -- and cognitive ability tests?
23 A. Some of them are, yes.
24 Q. These are not job knowledge tests, are they?
25 A. No, they are not. We aren't involved in that.
Lawrence - voir dire 1050
1 Q. Are you involved in any job knowledge testing?
2 A. No.
3 Q. And the listening and comprehension tests, could you
4 describe these tests that you are giving?
5 A. Those would be, for instance, we might present someone
6 with a picture and ask them to tell us a story. As part of the
7 Wexler Adult Intelligence Scale, there is one subtest called
8 picture arrangement. We are asking people in that particular
9 subtest to see if they can make sense out of a sequence of
10 stories which the police department has indicated is especially
11 important because they want to know that the cadets can process
12 what they see.
13 And then as follow up we ask people to articulate what
14 they see as the sequence. So they have to give a verbal story
15 as well.
16 Q. So the test that you are talking about with oral
17 communication, those are tests in which the cadet is asked to
18 speak after looking at some information and describe what they
19 have seen?
20 A. That may be part of it. There are other tests too in
21 which we give them material that they have to look at and then
22 describe.
23 Q. Okay. Again it is a process of synthesizing the
24 information they are looking at and then giving an oral
25 presentation, isn't that correct?
Lawrence - voir dire 1051
1 A. That's largely true, at least if I understand your
2 question correctly.
3 Q. Have you ever given a test in which you have spoken to a
4 cadet and then asked them to respond to the question?
5 A. Yes.
6 Q. Okay. And in what circumstances have you given that test?
7 A. Those are part of the battery. That is part of the
8 ongoing assessment.
9 Q. And what's the purpose of that test?
10 A. Well, you know, we want to know whether or not people are
11 able to express themselves clearly, if what they seem to
12 understand in the abstract or in the passive sense they can
13 also express in a more active sense.
14 Q. And are these tests all designed to see how the brain
15 processes information?
16 A. No, they are all predicated on what's already established
17 as how the brain processes information. They are not
18 investigating that.
19 Q. Can you explain what you mean by that?
20 A. What I mean by that is that, for instance, if we are
21 talking about passive understanding, receptive versus
22 expressive language, that in receptive language it is a passive
23 process. It is a process that's located in the posterior part
24 of the brain.
25 If we are talking about expressive language, we are
Lawrence - direct 1052
1 talking about a relationship between the -- it is an area
2 that's located lateral and medial in the brain between Brocus
3 and Wernecke's area, word retrieval, things like that.
4 That's already established neurologically, so I am not
5 testing to see if that's happening, all I am testing for is to
6 see if someone is actually able to manifest these functions.
7 Q. These are all done as part of your psychological battery,
8 is that right?
9 A. Yes, that's right.
10 Q. And, again, none of these tests were given for promotional
11 purposes to any position in an employment related job?
12 A. No.
13 MR. FLAXMAN: Are you done?
14 MS. GLINK: I am done with my voir dire, not whatever
15 questions I may have.
16 THE COURT: But I am going to find, so we can cut
17 short, under the Federal Rules of Evidence, I will find that
18 she is sufficiently an expert in psychological -- clinical
19 psychology, including administration of psychological tests,
20 and that she can testify so as an expert.
21 You may proceed.
22 DIRECT EXAMINATION (Resumed)
23 BY MR. FLAXMAN:
24 Q. Dr. Lawrence, does a test of reading comprehension measure
25 the ability to understand oral communication?
Lawrence - direct 1053
1 A. No, it doesn't.
2 Q. Are different parts of the brain involved in understanding
3 reading comprehension than in understanding oral communication?
4 A. Yes.
5 Q. Is there a separate way of testing oral communication than
6 of testing reading comprehension?
7 A. Yes.
8 Q. And what is that separate way?
9 A. Well, if you are -- say, again, if you are testing reading
10 comprehension, what you might do is have someone read a
11 selection and then answer questions to see if they can identify
12 material from it. That's a passive receptive language process.
13 If you want to see whether or not that person can read
14 that selection and then articulate and describe adequately to
15 someone else what it is they understand, that is -- that taps
16 into the area that I was mentioning earlier, the Brocus area
17 and Wernecke area, and then you would need them to do something
18 other than respond in writing or respond to what they have
19 read.
20 Q. Now is there a separate way of testing the ability to
21 understand what is spoken to you?
22 A. Yes.
23 Q. And how is that done?
24 A. Oh, well, you would have to present something orally, and
25 then see how it is processed. See if the material is taken in
Lawrence - direct 1054
1 adequately.
2 Q. Are there standardized assessment tools for measuring the
3 ability to understand oral communication?
4 A. Well, there are, but typically that is also done in
5 interview, and that's also done as part of the testing. It is
6 a skill that would be evident in the responses people give to
7 an entire battery.
8 Q. Now in the 20 or so years that you have been involved in
9 testing and assessment, has it been generally accepted in your
10 field that a test of reading comprehension does not measure the
11 ability to understand oral communication?
12 A. Yes, that's true, it is not accepted.
13 Q. Thank you.
14 MR. FLAXMAN: No further questions.
15 MS. PAPUSHKEWYCH: Your Honor, we're going to have to
16 have this witness come back tomorrow. There is no way that we
17 are going to decide what we are going to ask her in the next
18 ten minutes.
19 THE COURT: All right. We'll excuse you at this time
20 but ask that you return.
21 Would you be available -- you said 10:30 tomorrow
22 morning?
23 THE WITNESS: Yeah, I teach in the morning, but I'll
24 just teach half a class.
25 THE COURT: We will put you right on the stand
1055
1 whenever you arrive, so tell us when you can make it.
2 THE WITNESS: Well, if we can start earlier --
3 THE COURT: We'll interrupt whatever is going on.
4 THE WITNESS: If we can start earlier, I would come at
5 9:00, and then just go over to my class later. Is that all
6 right?
7 THE COURT: We would --
8 MS. PAPUSHKEWYCH: That's fine.
9 THE COURT: We would ask that you be here at 9:00
10 o'clock. We'll start promptly.
11 THE WITNESS: Okay.
12 THE COURT: And you will be excused as soon as your
13 testimony is concluded then.
14 THE WITNESS: Okay. Thank you.
15 THE COURT: All right.
16 MR. FLAXMAN: Thank you.
17 THE COURT: You're excused then at this time.
18 (Witness excused.)
19 THE COURT: Do we have to go back now to your case in
20 chief?
21 MS. PAPUSHKEWYCH: Yes, we do.
22 THE COURT: And do we have another witness?
23 MS. PAPUSHKEWYCH: Yes, we do.
24 THE COURT: Lieutenant Klein.
25 You may proceed when ready.
Klein - direct 1056
1 JOHN KLEIN, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
2 DIRECT EXAMINATION (Resumed)
3 BY MS. PAPUSHKEWYCH:
4 Q. You have previously testified about your background,
5 Lieutenant Klein, but just to refresh our recollection, in 1993
6 what was your position?
7 A. In 1993 I was the executive assistant to the
8 superintendent of police.
9 Q. And what is your current assignment?
10 A. I am assigned as a lieutenant and assigned at our training
11 facility.
12 Q. And what are your responsibilities at the training
13 facility?
14 A. My role is that of a coordinator. I am responsible for --
15 in conjunction with the assistant deputy, who is in overall
16 command, I am in charge of budget, in charge of personnel
17 issues, equipment acquisition, development of our long-range
18 and short range plans, coordination of all the activities at
19 the training activities and educational activities that occur
20 on a daily basis.
21 Q. And are you currently involved in the training of
22 sergeants?
23 A. Our division is involved in the training of sergeants. We
24 were involved in the preparation of the training program.
25 Q. And were you involved in the preparation of the training
Klein - direct 1057
1 program of the sergeants who are currently in the academy?
2 A. That's correct.
3 Q. When sergeants leave the academy, where have they been
4 assigned traditionally?
5 A. Traditionally the norm is that when new sergeants leave
6 the pre-service sergeant's training, they are assigned to
7 duties in the patrol division.
8 Q. And would this be true of the 225 sergeants who are
9 currently in the academy?
10 A. Yes, it is.
11 Q. Could you please describe what happens in the day in the
12 life of a field sergeant?
13 A. Well, let me describe that for you, counsel, and your
14 Honor. For example, if today were my graduation from
15 pre-service sergeant school, it is very possible that my first
16 tour of duty could be midnight tonight.
17 Q. Why is that?
18 A. Well, because, depending on how many days off I have had
19 in this week, I would be required to work tomorrow, and
20 tomorrow is another day, which starts at midnight by our
21 calendar. We have three shifts each day.
22 So conceivably I could be going to work as early as
23 midnight this evening. I would report to my district of
24 assignment, which would be one of the 25 districts throughout
25 the city.
Klein - direct 1058
1 Q. Now your district of assignment when you report, where do
2 you go?
3 A. I -- probably what would happen is I would call the
4 district as soon as I learned what my assignment was, and
5 generally that doesn't happen until the day that you graduate
6 from school.
7 I would call the district facility to find out what
8 shift or what watch I would be working and when I would be
9 starting. They would tell me either I would be coming in this
10 evening or tomorrow during the daytime or tomorrow in the
11 afternoon, whatever the case may be.
12 I would probably go there a little earlier to
13 determine what my days off were going to be and perhaps try and
14 secure a locker if I was so fortunate.
15 Q. Let me stop you there. As a sergeant, do you have an
16 office in the district station?
17 A. No, I do not.
18 Q. Who, if anyone, does have an office in a district station?
19 A. There is an office for the watch commander. There may be
20 a common area that the supervisors use for purposes of doing
21 paperwork.
22 Q. Could you describe this common area?
23 A. It would be a very small room. Probably half the size of
24 the jury box or so, with lockers generally there, mailboxes,
25 open baskets where I would receive or other sergeants or other
Klein - direct 1059
1 supervisors on the watch would receive information, a couple of
2 chairs sitting around.
3 It would probably have -- it would be like an
4 ante-room that would lead into the watch commander's office.
5 Q. And that is the location that you would go to when you
6 went into the district?
7 A. That's probably where I would be assigned a locker unless
8 it was a larger facility where there may be some other locker
9 areas. But supervisors are generally in different locations
10 than police officers.
11 Q. Where do you put your personal effects if you have any on
12 the job?
13 A. You carry them in the trunk of your car. Or to the extent
14 that you can put them in your locker, your uniform, perhaps
15 your weapon, any materials that you would be carrying with you,
16 change of clothes, your hat, your baton, things of that nature
17 would generally be in your locker.
18 Q. When you graduate from the academy as a sergeant, are you
19 given all the general orders, a copy of all of the general
20 orders of the police department?
21 A. No, you're not.
22 Q. Could you tell me -- could you show me or describe
23 approximately how many inches all the general orders of the
24 police department would be if you put them back to back?
25 A. Well, I could point to them actually because just for
Klein - direct 1060
1 general purposes of demonstration I brought with me today those
2 three large three ring binders that are on the first row are
3 the equivalent of what -- the general orders are blue, the
4 special orders are in yellow, and what we call our department
5 notices are in gray.
6 So those are our rules -- those are our policies and
7 procedures that are contained in those three binders.
8 Q. Now when a police officer cadet leaves the academy, is the
9 police officer given a copy of these three binders?
10 A. During the course of their training, the training division
11 is one of the two repositories in the police department where
12 all the directives, written directives reside. So during the
13 course of their 24 weeks of training, they would have assembled
14 those three books.
15 Q. Are there general orders, special orders and directives
16 amended by the police department from time to time?
17 A. They are amended on a regular basis but replaced by new
18 orders, replaced by teletype facsimile message. They are
19 amended in a variety of ways, but this is a continuous and
20 ongoing process.
21 Q. How are the new amendments or orders distributed to police
22 officers?
23 A. If it were to be a new -- a rewritten directive, which
24 would be a new general order or addendum to a general order, it
25 would be distributed via our mail processing service. We have
Klein - direct 1061
1 large bundles of these that are carried throughout the city to
2 all of our various facilities, and they would either be
3 inserted in people's mailboxes or more likely they would be
4 left in the desk area where people could have access to them.
5 Q. And when the police officers who are promoted to sergeants
6 leave the academy, are they given a new set of these binders?
7 A. No, they are not, but as a practical matter most of them
8 take advantage of their short tenure at the academy to assemble
9 or to complete whatever they may be missing in their only
10 personal sets
11 Q. Do you have a set, a personal set of these binders?
12 A. Yes, I do.
13 Q. Did you have a personal set of these binders when you were
14 a sergeant of police?
15 A. Yes, I did.
16 Q. Where did you keep them?
17 A. At the time I was a sergeant of police, I had a an
18 administrative position, so I actually had a desk where I could
19 place them in the corner of the desk.
20 Q. And when you were lieutenant, where did you keep them?
21 A. When I was lieutenant I was in charge of our legal office,
22 so I was very fortunate, one of the few fortunate ones, who
23 could have a small office where I could keep them on the
24 credenza.
25 Q. What is standard equipment that a sergeant has as part of
Klein - direct 1062
1 his uniform?
2 A. A sergeant is assigned to a field duties. For example,
3 taking today as an example, given the weather, they would have
4 regulation shoes, which are military type plain black shoes.
5 They have a pair of uniform trousers. They have a uniform
6 shirt, which in the sergeant's case is a white shirt with
7 stripes. They would be wearing a bullet proof vest. They
8 would he be wearing a leather jacket or an alternative garment.
9 They have a hat.
10 They have a duty belt, and the duty belt has many
11 pounds of equipment on it. It has a revolver or a
12 semi-automatic weapon in some cases. In many cases there are
13 two weapons that are carried, a primary and a secondary weapon.
14 There are spare ammo cartridges or magazine cartridges. There
15 is a portable radio which weighs a pound, pound and a half,
16 which is attached to the belt, and there is a cord that comes
17 over the shoulder that affixes to the shoulder area for
18 purposes of communication.
19 They may carry a personal pager. They may carry a
20 flashlight. They have a baton ring through which their baton
21 goes. And they would generally have handcuffs and handcuff
22 case.
23 Q. Going back to when the sergeant first comes into his
24 district for his assignment, is the sergeant assigned a car?
25 A. As a practical matter, there are -- as testimony has
Klein - direct 1063
1 previously indicated, there are sectors in a district. Each of
2 our 25 districts is divided into sectors, generally three,
3 three or so sectors.
4 Each sector is divided into beats. Police officers
5 are assigned to beats within sectors. Sergeants are assigned
6 to sectors.
7 So, for example, in the first police district, which
8 is downtown, there would be a sector called 110, a sector
9 called 120, a sector called 130. Those 10, 20, 30 cars are
10 sergeant assignments. A sergeant would be assigned to one of
11 the sectors with responsibilities for supervising anywhere
12 between six and 12 police officers.
13 Q. And in supervising the six or 12 police officers, is the
14 sergeant assigned an actual vehicle?
15 A. He is assigned to a geographic area. At 110, for that
16 example, is a certain geographic area within the first police
17 district, and the sergeant is assigned to a vehicle which has
18 what's called a beat tag. It's a little tag on top of the roof
19 of the vehicle --
20 Q. That number --
21 A. -- which says 110. That would be his vehicle for the tour
22 of duty.
23 Q. And what happens to that vehicle at the end of his tour of
24 duty?
25 A. He would take out whatever equipment he had brought with
Klein - direct 1064
1 him, and it would be turned over to the sergeant who is coming
2 on for the next shift that was working 110.
3 Q. So you don't have enough cars to give every one of --
4 every sergeant their own personal car?
5 A. No, certainly not.
6 Q. When the sergeant would come into the district, what would
7 he be told to do?
8 A. Beyond the administrative tasks in terms of getting his
9 assignment --
10 Q. What is his assignment?
11 A. Well, which shift he was going to be working.
12 Q. Okay.
13 A. Whose watch he was on. And when I say whose watch, there
14 is either a captain or a lieutenant who is a watch commander.
15 We say that that is their watch, they are in charge of that
16 particular shift. He'd find out whose watch he was on, who the
17 other supervisors were perhaps.
18 He would find out what his days off were going to be
19 so he would plan to -- learn what day off group he was in
20 because we have rotating and overlapping days off. He would
21 perhaps receive some other instructions regarding any
22 peculiarities or uniquenesses of the district or that watch
23 that he would be required to know.
24 Q. And then would he go to work?
25 A. He would go to work. If, for example, going back to my
Klein - direct 1065
1 scenario of my receiving an assignment in the first district,
2 for example, and I am going to work tonight at midnight, I
3 would report to work at quarter of 12:00 perhaps, go into this
4 common area where I would be working. Perhaps I would obtain
5 my radio before roll call. Sometimes that happens, sometimes
6 it doesn't happen.
7 Go to my locker. If I didn't have my equipment with
8 me that I was wearing, I would obtain my equipment from my
9 locker. And I would be prepared to go down to the roll call
10 room at 12:00 o'clock when we had held roll call.
11 Q. Who conducts the roll call?
12 A. Generally the watch commander would conduct the roll call.
13 But there are circumstances when he or she is not available and
14 it may be done by a sergeant or a lieutenant.
15 Q. What happens at roll call?
16 A. At roll call whoever is conducting the roll call would
17 basically take attendance, would inspect the officers present
18 to make sure that they had all their equipment and that they
19 were presentable and well groomed.
20 They may, depending upon the day, conduct an
21 inspection of weapons. They would give the officers their
22 assignments in terms of which cars, which beats they were
23 working and who their partners were going to be. They may
24 handle some other administrative functions in terms of passing
25 out court notifications, if people are required to go to court,
Klein - direct 1066
1 or provide other information regarding activities in the
2 district.
3 If there were crime patterns or crime activities that
4 the officers needed to be aware of, they would advise them of
5 that circumstance at that particular time. They would
6 entertain any questions from the officers. They would give
7 them information on things that occurred during the previous
8 shift if it was something that would affect their patrol. If
9 perhaps they were interested in a particular -- wanted an
10 offender -- if there was a particular incident of some note
11 that they needed to be aware of, that there was some ongoing
12 activity, hostage incident, something that required some
13 immediate attention as so as they left the roll call room,
14 those are the types of things that would occur.
15 Q. And that information is relayed to both police officers
16 and sergeants during the roll call depending on who is in fact
17 doing the roll call, is that right?
18 A. That's correct.
19 Q. And if at the end of the roll call when this information
20 is in fact given to the police officers and the sergeants, what
21 happens then?
22 A. They get the keys of their car. They get their radio if
23 they haven't already gotten their radio. They go out to the
24 parking lot. They put their equipment in the front seat. And
25 they begin their tour of duty, which is a field tour of duty.
Klein - direct 1067
1 They are required to provide field supervision for all
2 the cars, sometimes multiple sectors, if there is not enough
3 supervisors to work that evening. They may have twice as many
4 subordinates to supervise. They are required to remain in the
5 field, to respond to calls for service, to provide guidance and
6 direction at the scene, to direct the activities of certain
7 scenes.
8 They are basically a field support person for the
9 patrol officers that are out there.
10 Q. When the patrol officers who are becoming sergeants
11 graduate from the sergeant school, are they given a copy of the
12 Illinois Compiled Statutes?
13 A. No.
14 Q. Once the sergeant gets in his car, his or her car, what do
15 they do?
16 A. Well, generally they would start -- they would go to their
17 sector of assignment and determine whether there were any
18 conditions that needed their particular attention.
19 Q. How do they determine whether there is -- how do they
20 monitor what needs their attention?
21 A. Well, they have -- they are in constant radio
22 communication. They also have materials in their car that
23 would identify what are called special attentions. If there is
24 particular things in that sector or certain beats that needed
25 them to check periodically, they would have that information
Klein - direct 1068
1 available to them. They are required to monitor the radio, and
2 what that means is to constantly pay attention.
3 Q. Where is that radio?
4 A. The radio, as I indicated --
5 Q. Is it in the car deck?
6 A. -- attached to their belt, and there is a radio cord with
7 a microphone that affixes to their shoulder area.
8 Q. And what are they hearing over that radio?
9 A. They are hearing all the radio traffic on that particular
10 radio zone. Or in some districts there is joint or dual or
11 multiple radio zones. They are hearing the dispatcher give out
12 calls to officers. They are hearing the officers respond to
13 the calls.
14 Q. Could I stop you there.
15 Could you please explain to us how in fact a police
16 officer gets a call to a particular incident?
17 A. All right. If I am a dispatcher, and again using my
18 first --
19 Q. What's a dispatcher?
20 A. A dispatcher is someone who works in the -- now the new
21 communications -- emergency communications center 911 facility.
22 That is a person that receives calls through the new 911
23 emergency system, and then the calls are appropriately routed
24 to geographical areas of the city based upon where the need for
25 police service arises. They then dispatch those calls to cars
Klein - direct 1069
1 that are out in the field to provide police service.
2 Q. So who makes the assignment to the officers?
3 A. In most cases the assignment is made through the
4 dispatcher. There are also assignments that are given by
5 supervisors. There are assignments that come from the desk.
6 Perhaps someone called the first district desk, for example, to
7 request some service, the first district desk would then have
8 their radio. They would call on the air for communication with
9 an officer, and they would ask him to perform an activity.
10 Supervisors, as I say, can give tasks to their
11 subordinates. You also have things that you run into on view,
12 meaning that you are driving down the street and you're waved
13 down by a citizen or you observe some crime in progress. That
14 is another way to receive assignments.
15 Q. If you are a patrol officer, and you are driving down the
16 street and you see an on view incident, do you have any
17 obligation under the general rules and procedures to notify
18 anyone?
19 A. You are supposed to promptly notify the dispatcher of the
20 circumstances under which you are taking some action.
21 Q. Why is that?
22 A. Well, it is a safety consideration. It is for the safety
23 of the officer so that the dispatcher and other people on the
24 radio zone, all the other officers, can hear your transmissions
25 as can the supervisor. And if you need some emergency
Klein - direct 1070
1 assistance, they then will know where you are, and they then
2 can provide that assistance.
3 It is also a way for the dispatcher to know what is
4 unfolding at the scene so he can get a sense of whether he
5 should be sending assistance in the event that you can't call
6 for help. It is a way that you -- it is a life line. It is
7 the way that you stay in touch with the rest of the district by
8 using your radio and listening to your radio.
9 Q. Now I just want to make sure I understand this, do all the
10 police officers similarly have radios?
11 A. Yes.
12 Q. And it is the type of radios that you have described as
13 sergeants having?
14 A. Yes.
15 Q. And so is everybody, I don't want to say on the same
16 wavelength, but on the same band?
17 A. On the same radio frequency, yes.
18 Q. So a field sergeant is hearing the same thing that the
19 officers are hearing?
20 A. That's correct.
21 Q. What happens if the field sergeant hears something over
22 the radio that involves a criminal incident or that may involve
23 a criminal incident, what does that supervisor do?
24 A. Well, most of what we hear over the radio involves a
25 criminal incident. Most of the assignments that we receive are
Klein - direct 1071
1 not necessarily service oriented, they are response to calls
2 for assistance for some criminal or incident that's criminal in
3 nature.
4 Q. So the sergeant doesn't necessarily immediately go to the
5 scene of every single incident that he or she hears over the
6 radio?
7 A. Sergeants are required to respond to calls in progress.
8 So if it is a crime that is occurring now, an in progress call
9 as we term it, sergeants are required -- if they are available,
10 they are required to respond to those calls.
11 We also require our sergeants to respond to incidents
12 of domestic violence.
13 Q. Could you tell me why sergeants are required to respond to
14 in progress calls?
15 A. They are there to ensure that proper police service is
16 rendered. In many instances they may be closer to the scene
17 than the officer, and it is important to get emergency service
18 there as promptly as possible. They are there to ensure that
19 what their officers do is appropriate. They are there to
20 provide guidance and direction should in their estimation or in
21 the officer's opinion they need to provide some guidance or
22 direction.
23 Q. And you mentioned a second instance where a sergeant
24 wouldn't -- is required to respond.
25 A. They are required to respond with many instances of
Klein - direct 1072
1 domestic violence as they are available.
2 Q. And why is that?
3 A. Because of the importance that we attach to that
4 particular circumstance. It is an area that we believe is very
5 important. And the manner in which police departments have
6 addressed issues of calls of domestic violence in the past is
7 different than what we have done in the past several years, and
8 we want to make certain that all of our officers are conforming
9 to our policies and procedure in handling those types of
10 incidents.
11 Q. Now in 1993 there was a general order that basically
12 talked about domestic violence, is that right?
13 A. Yes.
14 Q. And do you know whether or not that general order has been
15 amended or updated since then?
16 A. I believe it is the same order.
17 Q. And what happens when a sergeant arrives on the scene of
18 an in progress report if police officers are already on the
19 scene?
20 A. Well, it would depend on the nature of the incident.
21 Q. What if we are talking about something that might
22 constitute a felony?
23 A. Again it would depend on the nature of the incident. But
24 generally what would happen is these are not placid, serene,
25 calm situations that we are using. My example is it is during
Klein - direct 1073
1 the hours of darkness, you have been called to, say, an
2 aggravated battery with a firearm. There is a shooting
3 situation. There would be a lot of confusion. There would be
4 perhaps victims, there would be witnesses. There may or may
5 not be an offender on the scene. There may or may not be
6 injured people there. There may be property damage. There may
7 be a variety of things that are occurring depending upon the
8 severity or the need for certain types of assistance. The
9 sergeant would be there to try and ensure that the resources
10 that are coming in to the scene are spending their time
11 appropriately.
12 For example, if people were injured, he would make
13 certain that the injured people were provided medical
14 treatment, gotten to a hospital. If there were witnesses, he
15 would coordinate the obtaining of information regarding the
16 witnesses. If there were offenders, he would ensure that they
17 were taken into custody and transported to the station. He
18 would try and coordinate the resources that were at the scene.
19 Or if he needed additional resources, he would call for them.
20 Q. And is the -- are the things that you have just described
21 a sergeant doing, are those procedures that are in fact
22 regulated by the Chicago Police Department?
23 A. Absolutely.
24 Q. And where are those regulations found?
25 A. They are found in those three books that I just referred
Klein - direct 1074
1 to. Our general orders set forth our policy and procedures.
2 Our special orders are more detailed description of our
3 procedures. And the notices basically provide information to
4 the officers, changes in ordinances, change in statutes,
5 special activities that occur throughout the city, tag days,
6 charitable issues, things that they need to know to perform
7 their duties.
8 Q. Are you familiar with how one of these general orders gets
9 developed?
10 A. Unfortunately I am very familiar with how they are
11 developed.
12 Q. And why is that -- not why is it unfortunate, why are you
13 familiar -- how are you familiar with those?
14 A. I worked in the research and development division for
15 several years.
16 Q. What is the research and development division?
17 A. That is an arm of the superintendent's office that is
18 responsible for developing policy within the Chicago Police
19 Department. I worked in that division for a number of years in
20 doing policy development.
21 I was also on staff in an administrative unit that had
22 responsibility for policy development. And I was also, for
23 approximately seven years, involved in reviewing all those
24 documents for legal sufficiency for the Chicago Police
25 Department.
Klein - direct 1075
1 Q. Could you describe to us how a general order is developed?
2 A. It can come about in a variety of ways and from -- for a
3 variety of reasons. One reason may be that we are seeking to
4 try a new program of some kind. One may be that we have been
5 involved in litigation and the litigation has been brought to
6 close and now some responsibilities have been placed upon the
7 department.
8 One may be as a response to some statutory or
9 legislative change that occurs. What the process calls for is
10 the assignment of a task. For example, our complaint and
11 disciplinary procedures order, which is part of the subject
12 matter of this proceeding, has evolved over a period of
13 probably 30 years based upon continual court challenges of
14 certain practices and policies in response to a collective
15 bargaining agreement that we have entered into with the
16 Fraternal Order of Police, in response to legislative mandates
17 with respect to bill of rights regarding officers. A variety
18 of these sources have forced us to revisit and rethink how we
19 conduct our disciplinary practices within the department.
20 What happens is from its inception or at the
21 beginning, a task to develop an order would be given to an
22 analyst, a police officer or a civilian member assigned to the
23 research and development division. There would be some general
24 scope and intent as to what the order was intended to do. The
25 analyst would then have to contact all the subject matter
Klein - direct 1076
1 experts in the department or outside the department who may
2 have some input into the way this order is crafted.
3 They would have to gather source materials, be they
4 statutes, copies of court orders, decisions, legislative
5 materials, literature that may exist in the field. And they
6 would have to, through this protracted process, assemble a
7 draft document which they believed in the appropriate form that
8 we utilized in the department that would address all the
9 circumstances that were requiring or necessitating that an
10 order be prepared.
11 This order would then be, we call it, staffed. It
12 would be distributed in-house in the research and development
13 division for supervisory and other staff review. When that
14 process was completed, and whatever changes were made or caused
15 to be made were made, it would then again be staffed to a
16 broader environment. It would be staffed to all the command
17 personnel in the police department as well as a group of people
18 in the field, a field planning and review committee, who again
19 would have an opportunity from their perspective to review this
20 document in detail and submit whatever comments they believe
21 were appropriate to make it operational.
22 Q. In -- I'm sorry.
23 A. Once -- as I say, it is unfortunate, but it is a long
24 process.
25 Once all these comments were finally resolved, it may
Klein - direct 1077
1 require some legal review. It may require some other review by
2 other agencies. If it involved court procedures, perhaps we
3 would give it to the presiding judge of the First Municipal
4 District. Or if it was criminal, it would go to Judge
5 Fitzgerald. So that any agency that was in some way impacted
6 by this directive would have an opportunity to look at it to
7 make sure that our procedures would comport with their
8 procedures, and that we set forth a process that was
9 appropriate and that everyone could live with.
10 After all that is said and done, then we would publish
11 the order, and it would be distributed to all personnel.
12 Q. And in trying to determine what process is the appropriate
13 process during this review, do you take -- did you take into
14 account things like what is the first thing an officer should
15 do, for example, on the scene?
16 A. Absolutely. Unfortunately, being a paramilitary agency,
17 we have a lot of orders, a lot of directives, a lot of very
18 detailed procedures. When we respond to the scenes of these
19 types of incidents, there are a variety of tasks and
20 responsibilities that the officers have. If I go back to the
21 one where the officer responds to an aggravated battery, and
22 there is a victim, there are witnesses, there are offenders,
23 there are a lot of responsibilities that the officer has to
24 take care of.
25 He has got to make sure notifications are made. He
Klein - direct 1078
1 has got to get crime scene people there if that is necessary.
2 He has got to collect evidence. He has got to try and identify
3 witnesses. He has got to see if there is an offender there
4 that he may have to take into custody. There may be property
5 that he has got to secure.
6 But the first thing he has got to do, the absolute
7 first thing, if there is a victim there who is injured, he has
8 got to get medical treatment. So while we would describe a lot
9 of different things that have to be done, there are -- there is
10 some priority to set forth. These things aren't haphazardly
11 assembled. And we identify what those priorities are within
12 the order.
13 So while there may be multiple responsibilities, some
14 could be done at a later point in time, and some have some
15 urgency or criticality that need to be done before others.
16 Q. How is the priority -- how are the priorities identified
17 within the orders?
18 A. Generally by use of language, such as "must" or "shall" or
19 telling people what they need to do before other things. Some
20 of these priorities are identified for us by the courts. Some
21 of them are identified for us by the judicial systems in terms
22 of how we process prisoners. Another example of an order that
23 involved a lot of interagency cooperation besides the
24 disciplinary order is our order on how we process prisoners.
25 That has been also the subject of litigation for many, many
Klein - direct 1079
1 years, and there are some very chronological things, sequential
2 things that need to be done: booking, charging, making
3 available for bail, things that have to occur in certain order
4 because we have been told they have to occur in certain orders,
5 so that's why we do them.
6 Q. And is it feasible under those circumstances when you are
7 talking about a booking, charging process, to go look it up in
8 the general order if you can find a copy of the general order?
9 A. It is possible, but it is unlikely. We're not a research
10 facility. We're not, designed nor is our work environment
11 unfortunately, conducive to serene and contemplative review of
12 documents and materials.
13 If sergeants are out in the car, and for some reason
14 they should have some resources available to them, you need to
15 understand that they are sitting in a car all bundled up, the
16 radio is going, it is dark out, they are trying to find a safe
17 place on a street somewhere where they can sit where they are
18 either not going to be involved in some criminal incident
19 themself or where citizens aren't going to interrupt them.
20 They are listening to the radio -- I mean, that's not an ideal
21 research atmosphere.
22 If they would try to go back to a district facility
23 and do it, there is no place where they can do it away from all
24 the distractions and the screaming prisoners, and the
25 intoxicated people. It is not a pleasant environment
Klein - direct 1080
1 basically. So it is important for them to have a good working
2 knowledge of the circumstances that they confront on a daily
3 basis.
4 Q. Let's go back to the sergeant coming onto the scene of an
5 in progress incident. Would the sergeant speak to any police
6 officers who had previously arrived on the scene?
7 A. He would probably know already who was assigned the job.
8 Again, using my example of the aggravated battery, it may be
9 assigned to 111, car 111, which is one of the beat cars in the
10 110 sector that he is responsible for. That would be what is
11 known as the paper car. That is the person that is responsible
12 after all the tumult has subsided and everybody has been able
13 to be identified and compartmentalized, that is the person that
14 is responsible for completing the necessary reports. That
15 sergeant in all probability would try and find the person or
16 persons assigned that car to find out what was going on.
17 Q. After the sergeant spoke to the police officers, what
18 would happen next on the scene?
19 A. He would probably ensure or direct the officers there to
20 take certain actions, make sure that certain people were
21 getting medical treatment, to make sure that the scene was
22 properly protected if they needed to barricade, if they needed
23 to tape off areas, if they needed to secure the help of an
24 evidence technician or the mobile crime lab. If certain
25 notifications needed to be made it immediately -- made
Klein - direct 1081
1 immediately depending on the nature and severity of the
2 incident in question, they'd have a variety of resource
3 directional activities.
4 Q. Now you had talked about some of the notifications. For
5 example, I think you mentioned mobile units. Is it mobile
6 units?
7 A. Mobile crime units.
8 Q. What is a mobile crime unit?
9 A. We have evidence technicians who are people that are
10 assigned to each of the 25 districts. When our police officers
11 encounter incidents that may have -- there may be some evidence
12 that may be helpful in the investigation or eventual
13 prosecution of the case, these technicians can come and take
14 fingerprints or they can take photographs or they can process
15 small types of crime scenes.
16 In the more severe or complicated crime scenes,
17 murder, even aggravated battery, large drug seizures, things
18 that are much more complicated, we have a more sophisticated
19 and better equipped means of handling those scenes. That is
20 our mobile crime lab. It is a van that has some sophisticated
21 evidentiary gathering equipment in there. There is much more
22 capacity to collect and preserve evidence. And those mobile
23 crime units are dispatched to the scenes of major incidents.
24 Q. And who dispatches those units to the scene?
25 A. They would be requested by the officer or the supervisor
Klein - direct 1082
1 at the scene through the dispatcher. He then -- they are on a
2 different radio frequency -- if they are a mobile crime lab,
3 they are on a different radio frequency. Or they may be in the
4 office in the crime laboratory division, and that dispatcher
5 who has a phone available to him or her, could then contact
6 that person and dispatch them to the scene. The officers don't
7 have telephones available to them, so they are required --
8 their lifeline again is their radio. That's how they get
9 resources brought to the scene.
10 Q. If there is an offender at the scene or someone who the
11 police officers may believe may have committed a criminal
12 offense, what happens?
13 A. As quickly as you can identify who that offender or
14 offenders are, you would take them into custody.
15 Q. And when you take them into custody, what does the police
16 officer have to have?
17 A. Let me step back a second. In order to identify someone
18 and take them into custody, you had to have some preliminary
19 information. You respond to the scene of an aggravated
20 battery. You get out of your vehicle. You have got three
21 screaming people saying, they shot Johnny, they shot Jimmy.
22 And Jimmy is laying over there on the ground. Who shot Jimmy
23 or Johnny? That guy over there. This guy turns around and
24 starts to run.
25 You chase him. You find out he has got a weapon on
Klein - direct 1083
1 him. Now you believe that you have at least got an arrest for
2 use of weapons. Perhaps he is involved in this crime, perhaps
3 he is not involved in this crime. You would then handcuff that
4 person know that you are going to charge him with minimally
5 unlawful use of weapons. You would secure him in the back of a
6 vehicle, and you would continue, after rendering aid, you would
7 continue to try to gather facts and information at the scene to
8 see if you could reconstruct what occurred.
9 Q. And at some point in this process, would -- would the
10 detective division be notified?
11 A. Again, depending on the severity of the crime, if it was a
12 -- what we consider a major crime scene, they could be notified
13 from the scene via the radio again. If it was a circumstance
14 where it was a simple shooting, I shoot Johnny, I am standing
15 there with the gun in my hand, I don't provide any resistance,
16 I give you the gun, let you handcuff me, you take Johnny to the
17 hospital, I am taken into custody. If there were going to be
18 some felony charges that were going to be placed, that could be
19 handled at the station over the telephone that's available at
20 the station.
21 Q. There are no telephones available on the scene?
22 A. Not unless some kind citizen was kind enough to let you go
23 in the house and use their telephone if they had one.
24 Q. What is the field sergeant's responsibility having come to
25 the scene where an offender has been placed basically into
Klein - direct 1084
1 custody?
2 A. He needs to make certain that the officer is conforming to
3 our rules and regulations, that the officer is acting properly
4 with respect to his use of force. In containing and arresting
5 and taking into custody that individual. He needs to make sure
6 if the officer is occupied in that process of taking someone
7 into custody if there are other activities that need to be
8 performed, that those are taken care of because the officer's
9 attention is diverted elsewhere. He needs to make sure that
10 the scene is properly handled, that witnesses are identified
11 that adequate police resource are there.
12 Q. Now while this is going on, is the sergeant's radio still
13 on?
14 A. Constantly. This is going on in one corner of the
15 district. There are -- unfortunately, there are many too
16 similar occurrences going on in other places in the district.
17 Q. And while the sergeant is in the field, does he go back
18 into the station after one particular incident?
19 A. He may or may not. If he believes or if he asked to
20 provide some assistance from the officer, he may go back into
21 the station for a short period of time. We discourage that.
22 Q. Why is that?
23 A. We have a limited number of supervisors, and for every
24 supervisor that goes back into the station, that's one less
25 available to provide supervision on the street.
Klein - direct 1085
1 In the last two years, for example, we have hired in
2 excess of 1800 new police officers. There are a lot of police
3 officers out there that are brand new that need a lot of help
4 that come to you continually for guidance and assistance. And
5 if you are in the station, you can't be providing that guidance
6 and assistance. You also have then effectively doubled or in
7 some cases tripled the work load of your fellow sergeants that
8 are out there. They now have to handle your cars in addition
9 to their own cars.
10 Q. Does the police officer who has arrested an individual
11 seek approval for charges?
12 A. In a misdemeanor arrest what the officer would do is bring
13 his prisoner into the station, complete whatever appropriate
14 case report there would be, complete the arrest report. He
15 would then present that arrest report to the watch commander.
16 Q. What does present mean?
17 A. Takes the piece of paper, walks down the hall where the
18 watch commander's desk is, puts it on the watch commander's
19 desk. The watch commander will look up and he will explain to
20 him what he has got. This is what happened, this is what we
21 did, this is what occurred --
22 Q. The police officers --
23 A. The police officer will do that sometimes in the company
24 of a sergeant if it is a complicated case or the police officer
25 is new and needs some help. And the watch commander will,
Klein - direct 1086
1 after listening to this, look at the arrest report to make sure
2 that the necessary elements are contained in there, that it is
3 properly completed, that it is accurate, that there is
4 sufficient information in there to justify the probable cause
5 for taking the offender into custody.
6 Q. Is that the point that the Illinois Compiled Statutes are
7 referred to, if you know?
8 A. The documents should be complete once it gets to the watch
9 commander. The citations to the Illinois Compiled Statutes
10 should already be on there. All the watch commander should be
11 required to do is listen to the incident as it unravels, ensure
12 that there is adequate information to justify the probable
13 cause, and that all the boxes are completed -- completely and
14 accurately, and he then signs it. He doesn't fill in any of
15 the blanks.
16 Q. And what is the sergeant's role in the presentation of a
17 misdemeanor case to the watch commander?
18 A. Basically he is there as an assist. Some officers are
19 very good at what they do, and they do it frequently enough
20 where they don't need any help. Other officers, as I
21 indicated, particularly at this point in time are brand new,
22 and they may not have made as many arrests or may not know how
23 to handle this, so he would have to assist that person. The
24 watch commander is a busy person. He is in charge of the
25 facility. He has got responsibilities outside the facility.
Klein - direct 1087
1 He has got to inspect the lock-up. He has got to make sure the
2 desk is running properly, that bonding has occurred.
3 He doesn't have time to walk these people -- he or she
4 doesn't have time to walk these people through a completed
5 arrest report. He expects, he or she expects, when that piece
6 of paper comes in there, this is a good arrest, that there is
7 sufficient proper cause in there, and all he has got to do is
8 sign it, and then that person can then be processed. He
9 doesn't have time to be reviewing it in any great detail.
10 Q. And under the department's, the Chicago Police
11 Department's rules and regulations, whose responsibility is it
12 in terms of the supervisors to assure that what is in the
13 arrest report is complete and accurate?
14 A. Well, it would be the field sergeant. I mean, the desk
15 sergeant could be helpful in it as well. On a practical matter
16 what happens is we're not always at full strength with
17 supervisors. Sometimes people are doing double duty.
18 Sometimes the desk sergeant has got to provide that assistance.
19 Sometimes the field sergeant has got to help out the desk
20 sergeant because he or she is overwhelmed with things that are
21 occurring, so they all need to have the same basic knowledge
22 about how that thing should be properly completed.
23 Q. I want to show you what I will mark as Defendant's Exhibit
24 M, as in money.
25 MS. PAPUSHKEWYCH: I have a copy for you.
Klein - direct 1088
1 THE COURT: Okay. Thank you.
2 BY MS. PAPUSHKEWYCH:
3 Q. Would you please take a moment to review that.
4 MS. PAPUSHKEWYCH: It does not have Mr. Flaxman's name
5 on it despite his contention.
6 THE COURT: Why not? All right. Let's --
7 MS. PAPUSHKEWYCH: Okay.
8 THE COURT: -- proceed.
9 BY MS. PAPUSHKEWYCH:
10 Q. Could you identify what this is for the record?
11 A. This is a Chicago Police Department Arrest Report that we
12 use for adult arrestees.
13 Q. Is there anything on this arrest report that would
14 indicate when this arrest report was drafted, this particular
15 form?
16 A. There is a date, and I believe there is a time on here as
17 well. But it indicates -- it is supposed to be contemporaneous
18 with an arrest.
19 Q. I'm sorry, I am trying to establish --
20 A. Oh, I --
21 THE COURT: Upper left-hand corner.
22 BY THE WITNESS:
23 A. I got you.
24 Yeah, the CPD number, which is the Chicago Police
25 Department forms number --
Klein - direct 1089
1 BY MS. PAPUSHKEWYCH:
2 Q. Up in the left-hand corner under arrest report, is that
3 where it is?
4 A. That's correct. It says revised 6/92.
5 Q. And are you familiar with the current form?
6 A. I believe this is the current form.
7 Q. And drawing your attention to the arrest report, this
8 exhibit, could you please identify what is required to be
9 filled out in Number 43, which is called narrative? Could you
10 read that, please?
11 A. The instruction contained on the form says that the facts
12 for probable cause to arrest and, in capital letters, to
13 substantiate the charges include, comma, but are not limited
14 to, comma, the following, colon.
15 Q. Who fills this portion of the arrest report out?
16 A. The arresting officer.
17 Q. And that could be either a police officer or a sergeant in
18 certain circumstances?
19 A. Or a lieutenant or whomever.
20 Q. And is there a portion of this where the arresting officer
21 has to sign?
22 A. The arresting officer has to sign. And right above where
23 he is required to sign, what he is doing is attesting to the
24 accuracy of the facts. It even says, "I do solemnly, sincerely
25 and truly declare and affirm that the facts stated herein are
Klein - direct 1090
1 accurate to the best of my knowledge."
2 Q. And when you talk about a presentation of a misdemeanor
3 case to the watch commander, is this the type of document that
4 is presented?
5 A. This is one of several. You would also, if you were a
6 reasonable or prudent person, you would also have in your
7 possession the case report, which is more descriptive of the
8 incident, and you would probably have in your possession the
9 misdemeanor complaints and the misdemeanor case that you had
10 prepared.
11 Q. What is a misdemeanor complaint?
12 A. It is the actual charging instrument that accompanies the
13 arrestee to court.
14 Q. Who signs the misdemeanor complaint?
15 A. The complainant, whether it is the arresting officer or
16 some third party.
17 Q. If an arresting officer is the complainant, is there any
18 swearing process to that complaint?
19 A. The sergeants are deputized as deputy clerks.
20 Q. And what do they do in that function?
21 A. They basically take the officer's oath and then sign as
22 the deputy clerk.
23 Q. I'll show you a copy of what I am going to mark as
24 Defendant's Exhibit M-1.
25 Could you identify this document for me?
Klein - direct 1091
1 A. This is a general offense case report utilized by the
2 Chicago Police Department.
3 Q. Now I'll call your attention to the bottom where it says
4 revised 12/95. Were you familiar with the form in 1993?
5 A. Not thoroughly. It was substantially the same as this.
6 Q. Is this the type of form that would currently be utilized
7 by police officers or sergeants in the field if they needed to
8 fill out a general offense case report?
9 A. That's correct.
10 Q. Calling your attention to the first line, Number 1, it
11 says offense slash incident primary classification. What is
12 that calling for?
13 A. That requires the completing member, whether it be a
14 supervisor or a police officer, to identify the offense based
15 upon the elements that they observed or became aware of during
16 the course of their preliminary investigation.
17 Q. And what is I/UCR offense code?
18 A. That stands for Illinois Uniform Crime Report offense
19 code. That is a numerical designated as associated with each
20 of the various criminal offenses in the State of Illinois.
21 Q. Now that's not the Illinois Compiled Statutes citation, is
22 it?
23 A. No, no, it is not.
24 Q. That is for purposes of classification of the crime --
25 A. For purposes of reporting.
Klein - direct 1092
1 Q. -- for reporting?
2 A. Yes.
3 Q. And what does, two, secondary classification, call for?
4 A. Most, if not all, offenses have both a primary and a
5 secondary classification. For example, burglary, the secondary
6 classification would be residential. If it were commercial, it
7 would be commercial. If it were other than that, it would be
8 something other. It is more of a delineation of the broader
9 charge.
10 Q. Okay. And the information called upon in 20 is basically
11 victims, in 30 is witness, 40 offender. I'd like to call your
12 attention to basically Box 80 which is called the narrative.
13 What type of narrative is normally put in there?
14 A. That would be a description of what happened. This is
15 basically our business record of what occurred. A sample
16 narrative would be, using again the same incident that I
17 alluded to earlier, aggravated battery, if I was the officer
18 assigned to Beat 111, the narrative would begin Beat 111
19 assigned to an aggravated battery in progress at 00:30 hours on
20 13 March, 1996.
21 Upon arrival reporting officers observed victim, now
22 known as such and such, laying on the ground with an apparent
23 gunshot wound to the chest. Reporting officers provided
24 immediate aid, and then had the victim transported to Saint so
25 and so's hospital.
Klein - direct 1093
1 Canvass of the scene revealed that the alleged
2 offender, Tom Smith, was residing across the street.
3 Responding officers went to that residence, identified the
4 offender, recovered a weapon, took Mr. Smith into custody.
5 If there were any other information regarding -- you
6 know, the victims said it was a gang related shooting,
7 something along those lines. It would be a narrative
8 description of what happened -- how I got the call, what I did
9 when I got there, who I took into custody, if I took any
10 emergency action and what then transpired. The reporting
11 officer then proceeded into the first district to handle the
12 paperwork.
13 Q. Okay. And Number 92 says officer notifying follow-up
14 investigation unit.
15 What does that mean?
16 A. Generally speaking, if it were a two-person car or two-man
17 car, one of the officers on the car would have certain
18 responsibilities. This is basically a democracy to some
19 extent. The officers decide amongst themselves who does
20 certain things. Some may do the case report. If there is
21 inventories, the other will do the inventory to try and
22 expeditiously process the things that we have to do.
23 One of the officers is the officer that you indicate
24 there, officer notifying follow-up investigation unit. That
25 would be the person who gets on the telephone or on the radio
Klein - direct 1094
1 and calls for the violent crimes detectives to come out. You
2 would get a name of a person that you spoke with, so you would
3 put your name as the officer making notification, which unit
4 you notified, Area 1 Violent Crimes, and the person if --
5 whoever took the notification so that you could document the
6 fact that you didn't call -- did in fact call and make a
7 notification for some follow up.
8 Q. And does the reporting officer sign this document?
9 A. Yes, he does. Both officers on the car, if it were a
10 two-man car, would sign.
11 Q. And 97, where it says supervisor approving, who is that?
12 A. That's the sergeant. If it is a police officer and the
13 sergeant is the supervisor, it would be the sergeant. If it
14 were a sergeant for some reason making it, it would be going to
15 his supervisor for signature. But these other reports that we
16 use multiple times every day throughout the city that the
17 police officers complete and as a general proposition are
18 reviewed and approved if appropriate by supervising sergeants.
19 Q. And when are these case reports approved and reviewed if
20 appropriate by sergeants?
21 A. There is no prescribed practice for how that's to occur.
22 They need to be done before the conclusion of the tour of duty,
23 before the shift is over. In some of the districts that are
24 very busy districts where there is a lot of reported crime,
25 what happens in practice is the supervisor will pull over to a
Klein - direct 1095
1 parking lot and he will get on the radio and say this is
2 Sergeant 110, I am at such and such a location for picking up
3 reports. And if the cars are not busy, if they are not on a
4 present assignment, they may come by him. They keep the
5 reports they have completed in their visor or in their
6 clipboard, they hand the sergeant the reports, and he sits
7 there in this parking lot and reviews the reports and he agrees
8 or approves them, and he signs them and puts them in his visor
9 or his clipboard. Then he takes them into the station some
10 time if he happens to be going in for other business or brings
11 them in at the end of his tour of duty.
12 Q. What happens to the reports once they get into the
13 station?
14 A. They then go into our review process. They would be
15 placed in a basket. Once they were reviewed, they go to a
16 review function, which is contained in the district commander's
17 office who then goes through all the reported crime for the day
18 before so that person can prepare crime summaries for the
19 people in the district and for the management in the districts.
20 Q. Now does the arrest report, if appropriate, and the
21 general offense case, reported prepared -- are both of those
22 things prepared in misdemeanor cases?
23 A. Yes.
24 Q. When appropriate.
25 A. When appropriate. There may be an ordinance violation
Klein - direct 1096
1 which would not require the completion of a case report, but it
2 would require the completion of quasi criminal complaints for
3 the city.
4 Q. Okay. And once the case for a misdemeanor is presented to
5 the watch commander, what happens?
6 A. Assuming the processing is done, the offender is placed in
7 the lock-up, if he or she is or not already in the lock-up.
8 The arrest report is given to the lock-up keeper. They begin
9 their processing, which is the fingerprinting, identification,
10 that process. The officer would return to their car, return to
11 their duty.
12 MS. PAPUSHKEWYCH: This may be a good place to break,
13 your Honor.
14 THE COURT: All right. We're at 12:30, and we'll plan
15 to resume at 2:00 o'clock -- I mean at 1:30. Will an hour give
16 you enough time or do you need more?
17 MS. PAPUSHKEWYCH: No, that's fine with me.
18 THE COURT: An hour, right, 1:30.
19 MR. FLAXMAN: Do you have motions this afternoon?
20 THE COURT: No. I have one matter at 2:00 o'clock
21 which I'll interrupt, but that's a temporary restraining order.
22 It will probably continue. And then I have an emergency motion
23 in an election, as I said, at 4:30, but, no.
24 Tomorrow, though, if you will see the list for
25 tomorrow, we have got a lot of stuff that has been put over to
Klein - direct 1097
1 that day. So then we will do it until 1:00 o'clock in the
2 morning -- I mean in the afternoon for --
3 MS. PAPUSHKEWYCH: Not the morning.
4 THE COURT: -- until we complete. In other words,
5 9:00 to 1:00 will be the available time.
6 Okay. We'll stand in recess until 1:30 then.
7 (Adjournment at 12:30 p.m., until 1:30 p.m., March 12,
8 1996.)
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1098
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 )
vs. )
6 )
CITY OF CHICAGO, ) Chicago, Illinois
7 ) March 12, 1996
Defendant. ) 1:30 o'clock p.m.
8
9
TRANSCRIPT OF PROCEEDINGS - Hearing
10 BEFORE THE HONORABLE JOHN A. NORDBERG
11
APPEARANCES:
12
13 For the Plaintiff: LAW OFFICES OF KENNETH N. FLAXMAN, P.C.
BY: MR. KENNETH N. FLAXMAN
14 122 South Michigan Avenue, Suite 1850
Chicago, Illinois 60603
15
16 For the Defendant: CITY OF CHICAGO
BY: MS. DARKA PAPUSHKEWYCH
17 MS. SHONA B. GLINK
MR. JAY KERTEZ
18 30 North LaSalle Street, Room 1020
Chicago, Illinois 60602
19
20 Court Reporter: MR. JOSEPH A. RICKHOFF
219 S. Dearborn Street, Room 1738
21 Chicago, Illinois 60604
22 * * * * * * * * * * * * * * * *
PROCEEDINGS RECORDED BY
23 MECHANICAL STENOGRAPHY
TRANSCRIPT PRODUCED BY COMPUTER
24
25
Klein - direct
1099
1 THE CLERK: 94 C 5727, Adams vs. City of Chicago. For
2 hearing.
3 THE COURT: Sir, you remain under oath.
4 THE WITNESS: Yes, your Honor.
5 JOHN KLEIN, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
6 THE COURT: And if we are all set, counsel, you may
7 proceed.
8 MS. PAPUSHKEWYCH: Thank you.
9 DIRECT EXAMINATION (Resumed)
10 BY MR. PAPUSHKEWYCH:
11 Q. I believe when we broke for lunch, you had just finished
12 describing the review process in terms of the approval process
13 for misdemeanors. Could you please explain to the Court what
14 the approval process is for felonies?
15 A. Once again, counsel, we're talking about, you know, a wide
16 range of possible circumstances. That's, unfortunately, why we
17 have so many directives. Because the incidents we all respond
18 to are unique and somewhat different in many respects.
19 Generally speaking, for most felonies, with the
20 exclusion of narcotics, if there is an arrest for a felony in
21 the State of Illinois that we are going to effect, the police
22 officer or the sergeant or whomever the officer is that's
23 effecting the arrest is required to complete a case report, as
24 we described, which would basically provide profile information
25 on the incident, on the categorization of the offense, the
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1100
1 secondary categorization of the offense, the IUCR code, some
2 profile information on the victim, on the offender, on any
3 witnesses, a narrative rendition of what occurred from the time
4 the officer learned of the offense until the time they
5 concluded their preliminary investigation.
6 They would have to complete an arrest report which
7 profiles the offender, the person taken into custody. That
8 would have the related charging information, the statutory
9 citations. It would also contain a very detailed explanation
10 or description of the underlying probable cause which existed
11 for purposes of taking that person into custody.
12 They would have to contact, in most instances, the
13 detective division. Because, unfortunately, there is so much
14 violent crime in the City of Chicago, including a very high
15 number of homicides that occur every year, we do not have
16 detectives available to respond to every felony arrest we
17 make. We make tens of thousands of felony arrests. We don't
18 have the personnel, unfortunately, to personally respond to
19 each of those felony circumstances.
20 As a practical matter, what can happen in many cases
21 is the police officer will telephone the detective, wherever
22 that detective may be -- in an area facility, somewhere out on
23 the street, relate to that detective over the telephone the
24 circumstances under which the person was taken into custody.
25 They will then, through some interchange on the
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1101
1 telephone, discuss whether there's sufficient evidence or
2 whether additional evidence is needed or additional witnesses
3 or additional information needs to be gathered. There may be a
4 third-party conversation with the -- on a conference call with
5 the State's Attorney from felony review. That may occur in
6 some circumstances.
7 Q. Now, when you said, "Calls the detective division on the
8 telephone," is the officer at this point in the station?
9 A. More than likely, he's at the station, yes.
10 Q. Okay.
11 A. In other cases where it's sufficiently serious enough to
12 warrant the detective or detectives physically coming to the
13 facility where the officer is located, that will occur.
14 The officer will preliminarily begin the processing of
15 the individual. He will be completing to the best of his or
16 her ability the case report. He will be completing to the best
17 of his or her ability the arrest report in as great a detail as
18 they possibly can.
19 If there is property to be inventoried, that will be
20 taken care of. Other notifications that need to be made, if
21 there are other units in the department that need to have
22 knowledge of this particular incident, those phone calls will
23 be made while they're waiting for the detectives to come.
24 The detectives will then come in. If it's a
25 sufficiently heinous or grievous or unusual crime, the sergeant
Klein - direct
1102
1 will probably come in to make sure that his people are doing
2 what they're supposed to be doing, that they're processing
3 everything appropriately.
4 Q. When you say "come in," you mean, into the station?
5 A. Come into the station.
6 Generally, they would not come in on routine arrests,
7 unless there was some request for assistance or unless the
8 police officer was relatively new and would probably need some
9 guidance or assistance.
10 The detectives, upon arriving, will then go into the
11 room, the physical setting where the police officers are. They
12 will have a conversation, generally, outside the hearing of the
13 person in custody or any witnesses to the event.
14 They'll get a sense as to what occurred, the facts
15 surrounding the incident, ask questions as appropriate, try and
16 flush out to their satisfaction the elements of the offense
17 that they sought to seek some approval for or seek some
18 discussion with the State's Attorney. They will then call the
19 State's Attorney.
20 They have fewer felony review resources than we have
21 detectives. So, they do not come out to the scene in most
22 cases. They come out only in the major circumstances. As a
23 general proposition, they render many of their opinions or
24 judgments over the telephone as to whether they will approve
25 the charges. And we would just then indicate on the report
Klein - direct
1103
1 that charges were approved per assistant State's attorney
2 so-and-so.
3 Q. What career service rank are detectives?
4 A. Police officer.
5 Q. Okay.
6 And does the watch commander have any responsibility
7 in the review process of felonies?
8 A. The watch commander is in charge of everything that occurs
9 in that facility. If the detectives are in that facility, the
10 watch commander still has jurisdiction over that site. He is
11 responsible for everything that occurs there. He is
12 responsible for the conduct and propriety of the activities of
13 his subordinates, which would be lieutenant to sergeant to
14 police officers.
15 In an infrequent number of cases, we have a
16 disagreement or difference of opinion with the assistant
17 State's attorney assigned to felony review as to whether we
18 have sufficient evidence to warrant charging an individual.
19 Q. What happens in those circumstances?
20 A. In those circumstances, if the watch commander and the
21 supervisors are unable to persuade the assistant State's
22 attorney as to the incorrectness of his position -- his or her
23 position, what we would do is call for an assistant deputy
24 superintendent -- we call them the street deputies -- who act
25 with the authority of the superintendent of police in the
Klein - direct
1104
1 absence of the superintendent of police.
2 They are roving citywide. They are in a vehicle much
3 like the sergeants are, but they have citywide responsibilities.
4 They would come into the facility, hear the evidence, listen to
5 the officers, listen to the watch commander listen to the
6 supervisor's presentation of the case.
7 If they agreed with the officers, as opposed to
8 agreeing with the assistant State's attorney, they have the
9 ability to, what we call, override the State's attorneys and
10 approve the charges notwithstanding the refusal of the State's
11 attorney to do so.
12 Q. Do you expect that sergeants entering the academy know the
13 criminal code?
14 A. I expect that they know the criminal code. I expect that
15 sergeants entering the academy for preservice promotional
16 training not only know the criminal code, but that they know
17 all the duties and responsibilities of a police officer.
18 Because they're required to know not only what they are
19 supposed to be doing as a supervisor, they need to know
20 everything that they are supposed to be doing or what their
21 police officers are supposed to be doing, so that they can
22 provide that guidance and direction when a police officer is
23 uncertain as to what he or she should be doing.
24 Q. In the academy, do you train sergeants that they do not
25 need to know the elements of an offense because they can look
Klein - direct
1105
1 up the offense in the criminal statute books?
2 A. Certainly not.
3 MR. FLAXMAN: Object to the form of the question.
4 THE COURT: You did not hear the question or --
5 MR. FLAXMAN: I object to the -- it's a convoluted,
6 inverse, negative, compound question.
7 THE COURT: I think everybody understood it. I think,
8 contrary to many, it is not a compound question, and I will
9 overrule the objection and permit the answer to stand.
10 BY THE WITNESS:
11 A. We require our supervisors to know all of the rules and
12 regulations and statutes and ordinances that affect the law
13 enforcement field in the City of Chicago.
14 BY MS. PAPUSHKEWYCH:
15 Q. Do you expect that sergeants entering the academy will be
16 able to distinguish between felonies and misdemeanors?
17 A. Absolutely.
18 Q. Do you think that that is important knowledge for them to
19 know?
20 A. I think it's very important. They have a distinctly
21 different role with respect to felonies as opposed to
22 misdemeanors. Their responsibilities are significantly
23 different.
24 Q. And what is that different role?
25 A. Well, as I indicated, if it is a misdemeanor, basically,
Klein - direct
1106
1 that's internal to the police department. We have the capacity
2 to charge individuals with misdemeanors, and we do not require
3 outside assistance or outside approval.
4 So, they need to know what are misdemeanors and what
5 are not misdemeanors and what are the related procedures that
6 apply for processing people arrested for those crimes.
7 Q. Do you expect that sergeants entering the academy be able
8 to distinguish between the different types of felonies?
9 MR. FLAXMAN: Let me object on the grounds that
10 Mr. Klein's expectations don't seem to be relevant to what this
11 case is about.
12 MS. PAPUSHKEWYCH: Well, your Honor, I thought I laid
13 a foundation that he is familiar with the curriculum and that
14 the curriculum did not, in fact, address a lot of --
15 THE COURT: Well, I am well aware of the fact that, if
16 they were required to expect otherwise, they would expect
17 otherwise. But it seems to me, again, letting both sides put
18 in their case, it seems to me sufficiently relevant for
19 purposes of admissibility. Whether it is entitled to any
20 weight is another matter. But at least it sets out the present
21 practice of the police department, which is what a lot of these
22 questions have been doing.
23 MR. FLAXMAN: But the question --
24 THE COURT: For background information, if nothing
25 else, it seems to me sufficiently relevant.
Klein - direct
1107
1 MR. FLAXMAN: But the question isn't about the
2 practice, it's about his opinion. And we haven't shown --
3 THE COURT: Well, no. Well, I interpret when she
4 asked "do you expect," that is how they have geared their
5 educational training program based on certain assumptions of
6 experience and knowledge that the --
7 MR. FLAXMAN: Well --
8 THE COURT: -- individuals have.
9 So, that is what I interpret "expect" to mean. It is
10 the assumption that they make as to the knowledge.
11 MR. FLAXMAN: With that interpretation, the testimony
12 makes a lot more sense. I would suggest that the question be
13 geared towards eliciting that kind of --
14 THE COURT: Well, all right.
15 Why do you not restate the question, then, but -- all
16 right. Restate the question.
17 BY MS. PAPUSHKEWYCH:
18 Q. In your involvement in -- that was previously testified to
19 at the training academy, are you involved in determining the
20 curriculum that is taught to sergeants?
21 A. Yes.
22 Q. And in determining the curriculum that is taught to
23 sergeants, do you, in fact, make a determination as to what a
24 police officer who is entering the academy is expected to know?
25 A. I'm not sure I understand the question.
Klein - direct
1108
1 Q. Let me rephrase it.
2 THE COURT: Are you talking about sergeants or police
3 officers? On the face of it, it seems to be confusing. So --
4 MS. PAPUSHKEWYCH: Well, I will --
5 THE COURT: -- why do you not restate it.
6 MS. PAPUSHKEWYCH: Okay. Let me try and restate it.
7 BY MS. PAPUSHKEWYCH:
8 Q. Individuals who are coming into -- let me just call it
9 sergeant school. Police officers who are entering the academy
10 for the three-week sergeant school, do you expect that those
11 individuals will be able to distinguish between different types
12 of felonies?
13 A. Absolutely. We --
14 THE COURT: Well, I mean, we are trying to avoid the
15 word "expect," since it is ambiguous and it creates a problem
16 for opposing counsel. So -- no, it really is somewhat
17 ambiguous. So, I think you better, if you can use another word
18 --
19 BY MS. PAPUSHKEWYCH:
20 Q. In developing the curriculum for the sergeant school, does
21 that curriculum include training on the law?
22 A. Yes, it does.
23 Q. And how much training on the law in terms of hours does it
24 include?
25 A. I don't know the exact number of hours, but the training is
Klein - direct
1109
1 designed to be a refresher, if you will. It presumes that they
2 have a solid foundation in Illinois law, and it is intended to
3 bring them current on, perhaps, changes that have occurred
4 recently.
5 Q. You testified earlier about the development of the general
6 orders. Is it important for sergeants to know the general
7 orders and other rules and procedures of the department?
8 A. It's very important.
9 Q. And why is that?
10 A. That governs their conduct on a daily basis, as well as the
11 conduct of their subordinates. We are very -- being, again,
12 the paramilitary or semi-military organization, we are very
13 definitive or restrictive or strict in what our officers and
14 supervisors can and cannot do and, in many cases, the order in
15 which they can or cannot do certain things. And we have
16 policies and procedures that govern many, many, many of the
17 circumstances and situations that we expect them to be involved
18 in. So, it's very important that they know what is expected of
19 them.
20 Q. And is that knowledge a sergeant is presumed to know when
21 -- excuse me.
22 Is that knowledge a police officer is presumed to know
23 when they enter the academy to take sergeant school?
24 A. Yes.
25 Q. In your opinion, is that knowledge that they need to know?
Klein - direct
1110
1 A. Without a doubt. It's not a circumstance where you can
2 learn as you go.
3 Q. Why is that?
4 A. Well, I mean, the citizens -- the environment in which we
5 operate and the tasks that we are required to perform are such
6 that you have to have contemporaneous knowledge. It's not as
7 if it were a proceeding similar to this, where, although it
8 would be problematic for the timely administration of justice
9 if counsel had to go out into the ante room to look up the
10 Federal Rules of Evidence, that would be disruptive, but it
11 wouldn't certainly deprive anyone of their liberty.
12 If we are in a position where we don't know the
13 answers to circumstances, we don't know what the police
14 department procedures and policies are, we don't have the
15 ability to say, "Excuse me, folks, I have to go lock myself in
16 my car or drive back to the station for an hour, so I can
17 figure out what it is we're supposed to do here."
18 We don't have that ability. We have to make very
19 quick decisions, and those decisions have to conform to what is
20 a policy that's developed in a very meticulous and reasoned
21 fashion.
22 Q. Do you remember testifying last week that you were selected
23 by the police department to act as a subject matter expert --
24 A. Yes.
25 Q. -- for the purpose --
Klein - direct
1111
1 And that was for the purpose of reviewing the test
2 items that Barrett & Associates had developed?
3 A. Yes.
4 Q. What was the purpose of your review?
5 A. Their terminology was that I was to be a subject matter
6 expert, which I understood to mean that I was to review the
7 questions and the materials that they provided me with a view
8 toward ensuring that the language was consistent with that
9 language used in the Chicago Police Department environment, and
10 that the questions consistently reflected our policies,
11 procedures, rules and regulations and law in the State of
12 Illinois.
13 Q. As part of that review, did you review the reading list or
14 source list?
15 A. Yes.
16 Q. And could you explain to me what the reading or source list
17 was?
18 A. My understanding is that it was a delineation of those
19 relevant department directives, statutes and ordinances of the
20 state that were most germane to the job of police sergeant from
21 the universe of orders and directives and statutes that are in
22 existence. This was a calling out for those most relevant
23 directives that related directly to the sergeant's duties.
24 Q. So, the source list didn't include all of the information
25 that was contained in the three binders that you showed us
Klein - direct
1112
1 before, did it?
2 A. No, no. In the past, examinations in the City of Chicago
3 have done just that. And the universal complaint was that that
4 was patently unfair and unreasonable. So, what we had tried to
5 do over time, I believe, is to just test potential promotees on
6 those things that they most directly need to know in the daily
7 performance of their duties.
8 Q. Did it contain the full Illinois Criminal Code?
9 A. No, it did not.
10 Q. Did it contain the full municipal code?
11 A. No, it did not.
12 Q. And do you know whether or not the police department
13 promulgated any announcement that identified which source
14 material, in fact, was being tested?
15 A. As I recall, each candidate was provided with a reading
16 list, as well as some very specific instructions, as to what
17 the examination process would entail.
18 Q. And you have testified here today that it's important to
19 know the general orders of the -- and special orders and rules
20 and regulations of the Chicago Police Department. How is it
21 determined that some things should --
22 MS. PAPUSHKEWYCH: Let me strike that.
23 BY MS. PAPUSHKEWYCH:
24 Q. Is it your testimony, then, that some things were more
25 important to include in this examination than others?
Klein - direct
1113
1 A. Certainly, and that was based upon experience of people who
2 performed the job and people who have a long history with the
3 Chicago Police Department.
4 We have a soup to nuts listing, if you will, of
5 directives that govern a very, very wide range of conduct and
6 responsibilities. Some of those occur much less frequently
7 than others. Some of them occur with a great deal of frequency
8 or have a high degree of criticality or importance, and those
9 are the ones that we tried to include.
10 Q. And the items that you felt were frequent or critical, in
11 your opinion, is it sufficient for a sergeant just to know
12 where to look it up in a general order?
13 A. No; and, again, the opportunity for doing that type of, as
14 I characterize it, contemplative research or contemplative
15 study are not there.
16 I mean, these are officers -- these are sergeants that
17 are out on the street in a car rolling from job to job,
18 checking on subordinate after subordinate, involved in
19 complaint after complaint, involved in all types of violent
20 crime, arrest activities, fighting, in the hospital, out of the
21 hospital. This is the type of activity that we expect them and
22 that they do, in fact, engage in every day. They simply don't
23 have the time to be engaging in some extended or protracted or
24 even short-term research with respect to these things. They
25 need to know what the policies are, and they need to be able to
Klein - direct
1114
1 respond appropriately.
2 Q. Now, as part of your review of the components of the
3 Barrett examination, I believe you previously recalled that you
4 reviewed hundreds of items contained in a three-ring binder; is
5 that correct?
6 A. Yes.
7 Q. And I believe it was also previously your testimony that
8 you were doing this review to determine whether or not the
9 items were consistent with the policies, procedures and
10 practices of the department?
11 A. That's correct.
12 Q. And did you -- I believe your testimony was also that you
13 reviewed to determine whether the knowledge that was contained
14 in the items was important to what a sergeant does every day?
15 A. That's correct, also.
16 Q. During this review process, did you recommend that certain
17 items be modified or altered in any way?
18 A. Many items.
19 Q. Do you recall why you made those types of recommendations?
20 A. There were a variety of reasons. Some of the questions we
21 believed were a bit esoteric or abstract and just weren't
22 something that we believed a sergeant really should know every
23 day. Those were circumstances where, perhaps, they would have
24 an opportunity to look it up or occurred with such infrequency
25 that it wasn't critical that they would know those things.
Klein - direct
1115
1 There were others that we believed had multiple
2 correct answers.
3 There were others still that had language that was not
4 Chicago Police Department language. It was not language that
5 we were comfortable with or that we believed it was appropriate
6 for use in the Chicago Police Department.
7 There were statutes that, again, were esoteric or were
8 statutes that we would very, very infrequently enforce, and we
9 didn't believe that that was fair to be testing people on that.
10 So, there were a variety of reasons why we asked that
11 certain questions be stricken.
12 Q. And is it your understanding that Barrett incorporated your
13 recommendations?
14 A. That's my understanding.
15 Q. After you completed your review of the items developed by
16 Barrett for the written job knowledge test, did you form an
17 opinion with regard to whether the remaining items in those
18 binders tested for knowledge a sergeant must know to perform
19 his or her job?
20 MR. FLAXMAN: Objection. It assumes that there were
21 remaining items in the binder. I think all the items were in
22 the binders.
23 MS. PAPUSHKEWYCH: I believe he just testified that
24 some were deleted and --
25 THE COURT: Well, I think -- I will sustain the
Klein - direct
1116
1 objection as to the form and ask that you restate the question.
2 BY MS. PAPUSHKEWYCH:
3 Q. After you completed your review of the items, did you form
4 an opinion with regard to whether the remaining -- whether
5 those items tested for knowledge a sergeant must know in order
6 to do the job?
7 A. To the best of my recollection, counsel -- and you'll have
8 to excuse me because there were a number of occasions on which
9 we went to Akron to look at the exam and we looked at different
10 portions in different stages. And my recollection is that, as
11 we would make individual -- or as I would make individual
12 comments or suggestions or criticisms of questions, notes would
13 be taken.
14 I was seeing this binder in varying stages. I'm not
15 certain if I ever did see -- I have not to this date seen the
16 completed examination. So, I don't know what questions were
17 finally contained in the final examination that was
18 administered.
19 Q. To the extent that you reviewed the items in the binders in
20 Akron, did you form an opinion as to whether the items required
21 knowledge that a sergeant needs in his job?
22 MR. FLAXMAN: Let me object because it's impossible to
23 ascertain what it was he was looking at at this stage.
24 MS. PAPUSHKEWYCH: There has been testimony --
25 THE COURT: Yes, there is no foundation laid for
Klein - direct
1117
1 this. There is no testimony as to what he reviewed.
2 MS. PAPUSHKEWYCH: There was testimony from
3 Dr. Barrett, your Honor, that --
4 THE COURT: Not as to what he reviewed.
5 MS. PAPUSHKEWYCH: Yes, there was. There was
6 testimony from Dr. Barrett that Lieutenant Klein and John
7 Cadogan came out and interviewed all 300 or so items that had
8 been developed for this examination.
9 THE COURT: Right, but the question is after they
10 threw out some questions --
11 MS. PAPUSHKEWYCH: No, I had reworded the question.
12 THE COURT: -- what was left and did he review the
13 final draft of it.
14 I thought -- I mean, he certainly can sign the
15 protective order and review the questions now to see whether
16 those questions are the ones that he reviewed there. I mean,
17 we --
18 MS. PAPUSHKEWYCH: Your Honor, I think this is a
19 distinction without any difference.
20 THE COURT: Well, all the testimony I remember is what
21 Mr. Flaxman has said -- is that he reviewed some 300 questions
22 or something like that and they threw out a lot of the
23 questions. Now, others may have gone out not because of their
24 recommendation, but for other reasons. We never really got the
25 detail of how the 300 ended up exactly at the 150.
Klein - direct
1118
1 And I do not believe that Dr. Barrett testified as to
2 what he looked at. I mean, whether, in fact -- I am not sure
3 that his testimony really covered whether he looked at all the
4 questions that eventually ended up in the 150 because there may
5 have been new questions that surfaced after he left. I mean, I
6 do not think it is clear, but I think there is an easy way that
7 this gap can be bridged, and we will give you time to do it. I
8 just -- I do not think we want to take any more time on this
9 than is absolutely necessary --
10 MS. PAPUSHKEWYCH: Well, let me just refer to --
11 THE COURT: -- for verifying what he looked at, and --
12 MS. PAPUSHKEWYCH: Let me just refer to Plaintiffs'
13 Exhibit No. 14, then.
14 THE COURT: I am going to have to take a break shortly
15 here, anyway, because we are at 2:00 o'clock. I do not know if
16 I have got other counsel waiting outside.
17 MS. PAPUSHKEWYCH: This isn't going to take very long
18 in terms of this issue. That's fine. We will just wait until
19 after.
20 THE COURT: Since you are on direct --
21 MS. PAPUSHKEWYCH: Right.
22 THE COURT: -- it would gave give him an opportunity
23 to go through the 150 questions right now while he waits --
24 while we have to wait to deal with this temporary restraining
25 order case.
Klein - direct
1119
1 MS. PAPUSHKEWYCH: Okay.
2 THE COURT: So, we will take a short recess at this
3 time, and call the next case.
4 (Whereupon, the Court gave its attention to other
5 matters, after which the following further proceedings were
6 had in open court, to wit:)
7 THE COURT: All right. I am sorry.
8 We are all set to resume --
9 MS. PAPUSHKEWYCH: Your Honor, I would --
10 THE COURT: -- questioning Mr. Klein.
11 MS. PAPUSHKEWYCH: -- just like to refresh this
12 Court's recollection on this issue. I went back to
13 Dr. Barrett's transcript from March 6th --
14 THE COURT: All right.
15 MS. PAPUSHKEWYCH: -- the afternoon session,
16 specifically.
17 THE COURT: See, I want the record to reflect the
18 unfair advantage that counsel have over the Court, since I do
19 not have access to the transcripts, so --
20 MS. PAPUSHKEWYCH: That's why I'm sure Mr. Flaxman and
21 I are both attempting to help you with the actual transcript as
22 much as possible.
23 THE COURT: Well, I appreciate your help.
24 MS. PAPUSHKEWYCH: Sure.
25 Dr. Barrett testified -- this is Pages 36 and 37,
Klein - direct
1120
1 again, on March 6th in the afternoon session. When asked -- he
2 was talking about the review process. He said, "And, then, if
3 after the review, if an item was found to be inappropriate, we
4 would not use it."
5 "Q. "And did you accept the recommendations of the
6 subject matter expert?
7 "A. Yes.
8 "Q. And you incorporated any changes that they
9 recommended be made?
10 "A. Yes.
11 "Q. And were all 150 items that ultimately ended up
12 on the written job knowledge test part of the group of
13 items that these reviewers looked at when they came to
14 Akron?"
15 And the answer is: "Yes."
16 THE COURT: Okay.
17 So, it shows that of the -- if it is 300 -- the 300
18 questions they looked at, the 150 that resulted eventually in
19 being used was included in that.
20 MS. PAPUSHKEWYCH: Correct.
21 THE COURT: So --
22 MS. PAPUSHKEWYCH: And the testimony is also --
23 THE COURT: And he has testified that he went through
24 those questions.
25 MS. PAPUSHKEWYCH: He went through all of those
Klein - direct
1121
1 questions.
2 Dr. Barrett has testified that all of the
3 recommendations were followed. And, therefore, I would like to
4 repose my question to the witness.
5 MS. GLINK: I would just like to interject the page
6 numbers are not paginated properly. We are getting these out
7 of sequence --
8 THE COURT: Right, right.
9 MS. GLINK: -- so that the page number is not
10 necessarily the correct one, and I will try to locate the
11 correct page number, so that the record will reflect the
12 correct page number from which Ms. Papushkewych --
13 THE COURT: But that is the page number that appears
14 on the --
15 MS. GLINK: I have a more updated transcript, your
16 Honor.
17 MS. PAPUSHKEWYCH: We're getting them different -- and
18 we are getting them --
19 THE COURT: We need to have a Bates stamp.
20 MS. PAPUSHKEWYCH: That probably would be a good idea.
21 THE COURT: -- of all the transcripts, ultimately,
22 perhaps.
23 MS. GLINK: At the end of the testimony, I will put
24 into the record what the proper page number is.
25 THE COURT: All right.
Klein - direct
1122
1 You may proceed now.
2 BY MS. PAPUSHKEWYCH:
3 Q. I will go back to the original question, which was: After
4 you completed your review of the items developed by Barrett for
5 the written job knowledge test, did you form an opinion with
6 regard to whether the remaining items in those binders tested
7 for knowledge a sergeant needs to know on his or her job?
8 A. Yes, I did.
9 Q. And what was that opinion?
10 A. That the items very accurately tested for knowledge that a
11 sergeant needed to be able to perform that function, that
12 responsibility.
13 Q. Lieutenant Klein, in your role as subject matter expert and
14 in your role during the sergeant process, did you ever have
15 occasion to look at the instructions that were going to be
16 proffered to the test takers?
17 A. We spent a great deal of time going over those instructions
18 very carefully. What we have found in the past is that we have
19 a somewhat unique language and understanding of terms within
20 our organization, and we wanted to make certain that we were
21 communicating very clearly and very accurately and very
22 straightforwardly what was going to occur during the
23 examination.
24 Q. And do you recall whether or not there was specific
25 instruction about the type of answer that was being elicited by
Klein - direct
1123
1 the written job knowledge test?
2 A. Certainly.
3 We had discussions about that we recognized that some
4 of the questions contained in the bank of items that we
5 reviewed had more than a single answer, which may be part of
6 the responsibilities of the officer involved in that particular
7 circumstance. The instruction was to select that item that was
8 most correct.
9 Because, as I have testified, we prescribes in some of
10 our directives a sequence or a chronology in which certain
11 items must occur. And while multiple activities or multiple
12 responsibilities are tasks attached to an officer or supervisor
13 responding to a scene or handling an incident of some kind,
14 there are some things that must occur in sequence and we
15 prescribe that they must occur in sequence.
16 So, while there may have been a distractor of some
17 kind, we wanted the instruction that they select the item that
18 was most correct.
19 Q. And you previously have testified in this case that you
20 reviewed, also, the in-basket simulation and the oral exercise;
21 isn't that true?
22 A. That's correct.
23 MS. PAPUSHKEWYCH: I am going to show you what has
24 been marked as Defendant's Exhibit 54.
25 MR. FLAXMAN: Defendant's 54?
Klein - direct
1124
1 MS. PAPUSHKEWYCH: I'm sorry, plaintiffs'.
2 THE COURT: Plaintiffs' 54, okay.
3 (Brief pause.)
4 MS. PAPUSHKEWYCH: Your Honor, while we have a break,
5 I have located the page number.
6 THE COURT: Okay.
7 MS. GLINK: So, before we go any farther, the
8 transcript is the 1:30 p.m. transcript of March 6th, 1996, and
9 that transcript begins with Page 284. The citation that was
10 read into the record is on Page 404.
11 THE COURT: All right. Thank you.
12 Can we work from Plaintiffs' Exhibit 14 because --
13 MS. PAPUSHKEWYCH: Well, your Honor, perhaps at this
14 point we can --
15 THE COURT: Because, you know, we had 54 and 55 --
16 MS. PAPUSHKEWYCH: Yes.
17 THE COURT: -- and then it is all put together now in
18 Plaintiffs' 14, I think.
19 MS. PAPUSHKEWYCH: That's fine.
20 I'm going to give -- I will just identify the
21 questions for the record, and then we can follow along.
22 THE COURT: He is going to need --
23 MS. PAPUSHKEWYCH: I am going to give him --
24 THE COURT: Oh.
25 MS. PAPUSHKEWYCH: -- part of our stipulated exhibit.
Klein - direct
1125
1 THE COURT: Oh, of course.
2 MS. PAPUSHKEWYCH: I will not be going, again, into
3 the underlying source document where the correct answer is
4 because we have already established that.
5 THE COURT: Okay. All right.
6 MS. PAPUSHKEWYCH: That is stipulated to.
7 BY MS. PAPUSHKEWYCH:
8 Q. So, I will give you a complete part of defendant's exhibit?
9 (Document tendered.)
10 BY THE WITNESS:
11 A. Thank you.
12 THE COURT: What has he got now?
13 MS. PAPUSHKEWYCH: That is part of the stipulated
14 exhibit that Mr. Flaxman and the defense has stipulated to that
15 has the question and the underlying source documentation.
16 THE COURT: Well, is there going to be another or
17 something other than Plaintiffs' Exhibit 14 for all the
18 questions?
19 MS. PAPUSHKEWYCH: This exhibit --
20 THE COURT: This has got 150.
21 MS. PAPUSHKEWYCH: This has 150 questions.
22 THE COURT: He has 150 questions?
23 MS. PAPUSHKEWYCH: No, he doesn't have 150 questions.
24 This is very confusing. I'm sorry.
25 THE COURT: This is based on the stipulation.
Klein - direct
1126
1 MS. PAPUSHKEWYCH: Mr. Flaxman has two exhibits,
2 Plaintiffs' Exhibit 54, which he calls the bad questions, and
3 Plaintiffs' Exhibit 55, which are the stupid questions or the
4 unimportant questions. Those two -- that's the way he
5 characterized them.
6 THE COURT: I did not recall that designation at the
7 time.
8 MS. PAPUSHKEWYCH: Well, I guess we've been using that
9 between ourselves, you know, for shorthand.
10 THE COURT: Okay.
11 MS. PAPUSHKEWYCH: Those are the questions that are in
12 contention in front of your Honor.
13 THE COURT: Right.
14 MS. PAPUSHKEWYCH: What we have done is basically
15 stipulated to the underlying source document for each question
16 from where the Court will be able to see we derived the answer
17 for that question.
18 THE COURT: Oh, okay. All right.
19 MS. PAPUSHKEWYCH: And that is what I am proffering to
20 Mr. Klein because I do not have sufficient copies of 14.
21 THE COURT: The paper monsters gobbled up some of our
22 exhibits.
23 MR. FLAXMAN: Does Klein need to have the source
24 document with him for these questions or can we just give him
25 --
Klein - direct
1127
1 MS. PAPUSHKEWYCH: I think he's fine with what he has.
2 MR. FLAXMAN: Well, in terms of identifying it for the
3 record, it's going to be hard if it's some undesignated --
4 MS. PAPUSHKEWYCH: I am going to be identifying it by
5 question. So, that should be pretty simple.
6 THE COURT: Sounds to me like it should work.
7 MS. PAPUSHKEWYCH: Question 6 is in Plaintiffs'
8 Exhibit 14 and is in Plaintiffs' Exhibit 54.
9 THE COURT: But what is this document? How is that
10 going to be marked for future use by appeal or otherwise?
11 MS. GLINK: Each of the underlying questions that are
12 a part of Plaintiffs' 54 and 55 have a source material that's
13 been labeled K-1, K-2, K-3, K-4. The stipulation will be
14 marked Exhibit K, and all the underlying questions that are a
15 part of it will each have a number that will be associated with
16 that number. And they go through those items that Mr. Flaxman
17 has identified as items that are in contention in this case.
18 And what we're just presenting to the Court is the underlying
19 documentation.
20 THE COURT: All right.
21 I just want to be sure that every page --
22 MS. PAPUSHKEWYCH: May I show you?
23 (Document tendered to the Court.)
24 THE COURT: Well, okay.
25 MS. PAPUSHKEWYCH: These will all be marked, and we
Klein - direct
1128
1 will actually --
2 THE COURT: Well, I mean, that is what I need to --
3 MS. PAPUSHKEWYCH: We will actually Velobind it, your
4 Honor, but it's somewhat difficult to do that until we have
5 utilized the documents because --
6 THE COURT: You are not going to bind all this
7 together --
8 MS. PAPUSHKEWYCH: Oh, no.
9 THE COURT: with --
10 MS. PAPUSHKEWYCH: With everything else, no.
11 THE COURT: -- some magic fastener?
12 Okay.
13 MR. FLAXMAN: I would suggest, just so that the record
14 is --
15 THE COURT: So, it is not a group exhibit?
16 MS. PAPUSHKEWYCH: No.
17 MR. FLAXMAN: Just so that the record is clear, that
18 we not use this exhibit, that we use Plaintiffs' 54 for this
19 questioning. And if he has to look at source material, he can
20 look at source material and mark that separately. I'm not
21 trying to -- but it's just in terms of marking a new exhibit
22 that isn't marked.
23 MS. PAPUSHKEWYCH: And, basically, your Honor, this is
24 the stipulation that the parties will be entering into with the
25 document, but I will do it through the questions. That's fine.
Klein - direct
1129
1 THE COURT: Well, no, the only difficulty I have is we
2 have to be sure that we can identify every --
3 MS. PAPUSHKEWYCH: Right.
4 THE COURT: -- piece of paper --
5 MS. PAPUSHKEWYCH: Right.
6 THE COURT: -- that's referred to in the record, so,
7 in the future, somebody that wants to go back and do that and
8 review what was done will know what document was utilized.
9 So, I think you clarified it enough if you referred to
10 the question for the one page, and then the K-1 on every K
11 exhibit is numbered.
12 So, with that, I will let you proceed.
13 BY MS. PAPUSHKEWYCH:
14 Q. Could you proceed to Question 6 and review the question?
15 THE COURT: Now, is he supposed to read the K part of
16 it, too?
17 MS. PAPUSHKEWYCH: No, sir. You know, what? I think
18 this is just too confusing.
19 BY MS. PAPUSHKEWYCH:
20 Q. John, may I have that back and we will just use Plaintiffs'
21 Exhibit 14.
22 MS. PAPUSHKEWYCH: He does not need the underlying
23 source document. It's obvious that causes more confusion than
24 help.
25 BY MS. PAPUSHKEWYCH:
Klein - direct
1130
1 Q. Have you --
2 A. Yes, I've read the question.
3 THE COURT: Question 6 now?
4 THE WITNESS: Yes, sir.
5 BY MS. PAPUSHKEWYCH:
6 Q. Who is effectuating the arrest in this instance?
7 A. Field Sergeant Smith.
8 Q. And what type of information is being elicited by the
9 question?
10 A. The question asks under what circumstances Field Sergeant
11 Smith should request a confidential number check.
12 Q. Is the terminology -- that terminology -- only used by
13 units, specialty units or units that specialize in certain
14 offenses?
15 A. You're referring to the term "confidential number check"?
16 Q. Correct.
17 A. No, that term is universally used within the Chicago Police
18 Department.
19 Q. Is the knowledge required to answer this question knowledge
20 that is important for a sergeant to know?
21 A. Certainly.
22 Q. And why is that?
23 A. We have a, unfortunately, very high incidence of auto theft
24 in the City of Chicago occurring in each geographic area. It
25 does not know any bounds with respect to race or creed.
Klein - direct
1131
1 We also, in conjunction with that high volume of auto
2 thefts, recover quite a number of the vehicles that are stolen.
3 What happens not infrequently is that the thefts are
4 perpetrated by organized groups of people who engage in
5 tagging, which is a way of describing people that manufacture
6 false vehicle identification plates for the cars, transport
7 vehicles citywide, steal them for parts, interchange parts,
8 things of that nature. And the only way or the most effective
9 way that we in the police department have of identifying the
10 true registration for a vehicle is through a confidential
11 number check, which involves putting the vehicle up on a
12 hoist. And there are secret locations, basically, where the
13 manufacturer has secreted plates which have the true and
14 correct vehicle's identification number. And that's what this
15 process involves.
16 Q. Is D the correct answer?
17 A. Yes, it is.
18 Q. Does the answer -- does the correct answer to this question
19 depend on who within the Chicago Police Department is
20 effectuating this arrest?
21 A. No, the answer would be the same.
22 Q. Turn to Question 11, please -- no, 15?
23 (Brief pause.)
24 BY THE WITNESS:
25 A. I've reviewed the question.
Klein - direct
1132
1 BY MS. PAPUSHKEWYCH:
2 Q. Does the fact scenario in this question require the police
3 officer to be at two places at one time?
4 A. No, it does not.
5 Q. And why do you say that?
6 A. This question requires a careful reading of the question,
7 as some of the questions in this examination do. I don't know
8 how -- if I'm allowed to read some of the language from the
9 question --
10 Q. No, you're not. You just have to generally describe it.
11 A. The first sentence in the question indicates that an
12 assignment has been made to perform a particular activity. It
13 does not indicate that that activity is being performed at the
14 present time as a future activity. So, therefore, a
15 responsibility could occur before that activity were to take
16 place.
17 Q. So, by the word "assignment," that could be being done in
18 the station?
19 A. That's correct.
20 A simple way to do it is at a roll-call, the watch
21 commander or whoever was conducting the roll-call would say,
22 "Officer Smith, when you leave roll-call, I need you to do
23 this, and then you're going to be assigned to a guard detail at
24 such and such a hospital."
25 THE COURT: Going back to Question 6 --
Klein - direct
1133
1 MS. PAPUSHKEWYCH: Yes.
2 THE COURT: -- there was a substantial amount of
3 testimony on this. You have not asked the witness the
4 questions that relate to the testimony that has previously been
5 given. I do not have any way of knowing whether a special
6 department in the police department handles all of this or
7 whether this is a question that where conceivably a field
8 sergeant might actually be involved.
9 MS. PAPUSHKEWYCH: Oh, I'm sorry. I thought --
10 THE COURT: But you did not deal with that --
11 MS. PAPUSHKEWYCH: I thought I asked that by asking
12 him whether this was only done by units specializing -- by
13 specialized units, and he answered "No."
14 THE COURT: Well --
15 MS. PAPUSHKEWYCH: We can cover that, again, your
16 Honor.
17 THE COURT: Well, I mean, I do not --
18 MS. PAPUSHKEWYCH: That's fine. I don't --
19 THE COURT: I do not want to try to interfere with how
20 you present the case, but it is not clear to me what is at
21 least the City of Chicago's view of what the practice is when
22 somebody finds a car as a result of a high-speed vehicle
23 pursuit.
24 BY MS. PAPUSHKEWYCH:
25 Q. Could you go back to Question 6?
Klein - direct
1134
1 A. Yes.
2 Q. First of all, who -- what type of officers would be engaged
3 in a high-speed vehicle chase?
4 A. It could be any of our police officers or any of our
5 supervisors.
6 Q. And if a police officer or supervisor is, in fact, engaged
7 in that type of a pursuit, what happens when the vehicle is, in
8 fact -- what happens when it occurs?
9 A. It would be the responsibility of the investigating or
10 arresting officer or supervisor to attempt to verify vehicle
11 registration. They would do that through the dispatcher.
12 If the information that was returned to them indicated
13 that the description of the vehicle or the registered owner of
14 the vehicle did not match the vehicle that was in custody or
15 the individual that was in custody, the way that you would
16 determine what the true registration of the vehicle was for
17 that officer, whoever that officer may be, would be to request
18 on the scene that a confidential number check be obtained on
19 the vehicle, so he or she could ascertain what the correct
20 identity of the vehicle was.
21 Q. In 1993, was there a division or unit within the Chicago
22 Police Department that dealt with auto crimes?
23 A. We have had an auto theft section for many, many years.
24 Q. And at what point would the auto theft section be called
25 into this type of a circumstance?
Klein - direct
1135
1 A. It's my understanding that the auto theft unit has
2 responsibility for organized groups that engage in re-tagging
3 vehicles or in stealing vehicles for parts or in shipping
4 vehicles across the state lines. They are there to deal with
5 organized groups of people that engage in these types of
6 unlawful activities.
7 Q. And would a police officer be engaged in requesting a
8 confidential number check under the circumstances described in
9 Question 6?
10 A. It could be a police officer. It could be whoever was
11 assigned that investigative responsibility.
12 You know, they would notify, as a courtesy, the auto
13 theft section that they had obtained this information, just in
14 the event that the auto theft section was involved in some
15 investigation that this, you know, may take some interplay
16 with. But as to the processing of this particular vehicle,
17 they would start the processing of that vehicle for a
18 confidential number check.
19 Q. And is this information regarding the requesting of a
20 confidential number check in the general orders of the Chicago
21 Police Department?
22 A. Yes, it is.
23 Q. Okay.
24 I'm going back to -- going forward --
25 THE COURT: Right.
Klein - direct
1136
1 BY MS. PAPUSHKEWYCH:
2 Q. -- to Question 15.
3 I think you were explaining why this scenario does not
4 call for the patrol officer to be at two places at the same
5 time.
6 A. That's correct.
7 The language that is used here is consistent with
8 language we use in the department. And it, in many cases or
9 many circumstances, would indicate a future activity which
10 would occur.
11 Q. And by "a future activity," I believe what you were
12 testifying to is that the assignment could be done in the
13 station?
14 A. The assignment itself would occur with the activity
15 associated with that assignment occurring in the future.
16 Q. Now, could you please look at Alternative A.
17 Is A something that an officer has to do in the
18 circumstances described in the stem of the question?
19 A. As it is presently constituted, no. There is language
20 missing, and there is some responsibility for an officer to do
21 the thing that is called for in A, but not given the language
22 that is presently in A.
23 MS. PAPUSHKEWYCH: Your Honor, would it help for you
24 to actually be looking at the order -- I mean, the source
25 material? I mean, some of this is somewhat esoteric without
Klein - direct
1137
1 looking at the documentation itself.
2 BY THE WITNESS:
3 A. Something else would have to occur before the
4 responsibility --
5 THE COURT: I think we have already had a reference to
6 this, have we not? We already have. Maybe it was a different
7 question.
8 MS. PAPUSHKEWYCH: The underlying orders make it much
9 clearer what the witness is trying to say.
10 MR. FLAXMAN: Judge, I --
11 THE COURT: Well --
12 MR. FLAXMAN: -- think if we allowed the witness to
13 answer the question using regular English, it might be more
14 understandable.
15 THE COURT: Did we not have something -- somebody
16 referring to the word "immediate" about this?
17 MS. PAPUSHKEWYCH: Not this question, your Honor.
18 THE COURT: Not this one, okay.
19 MS. PAPUSHKEWYCH: No.
20 THE COURT: Well, obviously, if this is designed to
21 bring out what is in a specific general or special order, being
22 able to look at it would be of help. There are an awful lot of
23 wrong answers in this one.
24 MS. PAPUSHKEWYCH: Question 15, this is part of the
25 Defendant's Exhibit K.
Klein - direct
1138
1 (Document tendered to the Court and witness.)
2 THE COURT: Thank you.
3 MR. FLAXMAN: My copy is marked as K-3.
4 MS. PAPUSHKEWYCH: K-3.
5 THE COURT: Right.
6 MR. FLAXMAN: Okay.
7 THE COURT: So is mine.
8 MR. FLAXMAN: All right.
9 BY MS. PAPUSHKEWYCH:
10 Q. In the context of the general order, could you describe why
11 A is not the appropriate answer?
12 A. A is not the appropriate answer because A is not the
13 responsibility of the police officer. It is someone else's
14 responsibility.
15 Q. And where is that designated in that general order?
16 A. It is contained in Item 2-B-1.
17 Q. And in this instance, the question, who is seeking the
18 instruction in this case?
19 A. The police officer.
20 Q. And, therefore, who is the person who is supposed to have
21 knowledge of this particular rule or regulation?
22 A. Because the instructions are being sought from the
23 sergeant, the sergeant would need to have the information and
24 knowledge available to instruct the police officer.
25 Q. And, in your opinion, is the knowledge required to answer
Klein - direct
1139
1 this question knowledge that is important for a sergeant to
2 have?
3 A. Yes.
4 Q. Why is that?
5 A. We have this circumstance occur with a high degree of
6 frequency throughout the city on a daily basis.
7 (Document tendered.)
8 THE COURT: Thank you.
9 MS. PAPUSHKEWYCH: Thank you.
10 BY MS. PAPUSHKEWYCH:
11 Q. And is the correct answer B?
12 A. Yes, it is.
13 Q. Turning to Question 17.
14 (Brief pause.)
15 BY THE WITNESS:
16 A. I reviewed the question.
17 BY MS. PAPUSHKEWYCH:
18 Q. Is this the type of offense that occurs frequently, within
19 your knowledge?
20 A. No.
21 Q. Is the information contained in this question the type of
22 knowledge a sergeant needs to know?
23 A. A sergeant would need to have general knowledge about
24 this. I don't believe he would need to have very precise
25 knowledge. It would not, in my experience, be something that
Klein - direct
1140
1 occurs every day, but I believe that the sergeant or the police
2 officer would need to have sufficient knowledge to know what
3 general subject matter area within the Illinois criminal
4 statutes they were dealing with in such a circumstance.
5 Q. And is E the correct answer?
6 A. Yes, it is.
7 Q. Is this a situation where the individuals could be taken
8 into the station to determine what the offense should be
9 charged -- what offense should be charged?
10 A. Yes, I believe this is such a situation.
11 Q. Question 19.
12 (Brief pause.)
13 BY THE WITNESS:
14 A. I have reviewed the question.
15 BY MS. PAPUSHKEWYCH:
16 Q. First, I will point your attention to the fact that there
17 are two correct answers listed on the page; is that right?
18 A. In my opinion -- well, there are two correct answers listed
19 on the page, yes.
20 Q. Who is doing the investigation in this incident?
21 A. This is a matter that involves a little bit of
22 explanation. The sergeant is responsible as a member of higher
23 rank for investigating this type of an incident involving a
24 police officer's conduct.
25 He is charged with the responsibility of ensuring that
Klein - direct
1141
1 the investigation is done properly and done thoroughly, but he
2 or she does not personally complete the reports that are
3 necessary in this type of an incident.
4 Q. And is there any particular report that the sergeant is
5 personally responsible for preparing?
6 A. That would be in Item E.
7 Q. Is the information contained in this question the type of
8 knowledge a sergeant needs to know?
9 A. Unfortunately, we have these incidents occur with a very
10 high degree of frequency.
11 Q. And why is it important to know that E is the correct
12 answer?
13 A. Well, it's important to know because of the frequency and
14 the degree of importance we attach to this type of a
15 circumstance.
16 It's important because there is discipline associated
17 with it. And we have very strict and controlled procedures
18 regarding discipline. We have a collective bargaining
19 agreement and we have grievance processes, and we need to be
20 very careful in the way we administer discipline, and this is
21 such a circumstance.
22 Q. Okay.
23 THE COURT: I need to have my recollection refreshed.
24 If somebody answered either B or E, he got a correct answer; is
25 that right?
Klein - direct
1142
1 MS. PAPUSHKEWYCH: That's correct, your Honor. The
2 double keying means they're both correct.
3 THE COURT: So that both counted?
4 MS. PAPUSHKEWYCH: Right.
5 THE COURT: Okay.
6 BY MS. PAPUSHKEWYCH:
7 Q. Question 23, could you please review it?
8 (Brief pause.)
9 BY THE WITNESS:
10 A. I have reviewed the question.
11 BY MS. PAPUSHKEWYCH:
12 Q. Is being intoxicated a crime in Illinois?
13 A. Absent any other conduct, no, it is not.
14 Q. Is being verbally abusive a crime?
15 A. No, it is not.
16 Q. Is anything in the stem of the question -- does any --
17 THE COURT: Well, I do not want to interject myself,
18 but is there not an ordinance called disorderly conduct or is
19 that not --
20 THE WITNESS: There is, your Honor, but --
21 THE COURT: -- enforced anymore?
22 THE WITNESS: -- the stem of this -- oh, it's enforced
23 to a great degree. But the conduct described in this in the
24 vernacular that we use in the police department does not rise
25 to the level of someone being disorderly. You can be what they
Klein - direct
1143
1 characterize --
2 THE COURT: You can be intoxicated and verbally
3 abusive, but that is not disorderly?
4 THE WITNESS: It may not rise to the level of
5 disorderly conduct.
6 THE COURT: All right.
7 Go ahead.
8 BY MS. PAPUSHKEWYCH:
9 Q. Is there anything in the stem that indicates that a
10 criminal offense may have occurred?
11 A. There is insufficient information to indicate that.
12 Q. Is E the correct answer?
13 A. Yes, it is.
14 Q. And why is E the correct answer?
15 A. That is the responsibility of a sergeant to document that
16 type of conduct because our rules and regulations and policies
17 and procedures regulate off-duty conduct of officers. If this
18 were an individual other than an officer, he or she would
19 probably have no such responsibility. But given that it is a
20 department officer, he has this responsibility.
21 Q. Is this the type of information -- is information contained
22 in this answer the type of knowledge a sergeant needs to know?
23 A. Unfortunately, yes.
24 Q. And why is that?
25 A. Because it occurs with some degree of regularity throughout
Klein - direct
1144
1 the city.
2 Q. Could you look at Question 24, please.
3 (Brief pause.)
4 BY MS. PAPUSHKEWYCH:
5 Q. Have you had a chance to review this question?
6 A. Yes, I have.
7 Q. Is D the correct answer?
8 A. Yes, it is.
9 Q. Why isn't E the correct answer?
10 A. E is not the correct answer because, once again, it
11 requires a careful reading of the question. The reference with
12 respect to who -- with regard to what type of a response may be
13 called for by the nature of the incident does not indicate that
14 it is such a response that would require E to occur. There are
15 other lesser responses that could occur in certain
16 circumstances.
17 Q. Is this situation addressed by the general -- by a general
18 order?
19 A. Yes, it is.
20 Q. And under the general order, whose duty is it to -- or
21 whose -- who has the authority to do what is described in E?
22 A. I believe it's the police officer.
23 Q. And are there other activities that the police officer
24 under that general order should do prior to doing E --
25 A. Yes.
Klein - direct
1145
1 Q. -- if you know?
2 What are they?
3 A. Once again, a preliminary investigation involves a lot of
4 different aspects. There may be some protection of a scene
5 involved. There may be some roping off or taping off. There
6 may be some keeping bystanders, people away from a certain
7 area. There may be some responsibility, depending on the
8 weather, to take other steps to preserve evidence that may be
9 there. There's a variety of things that could occur based upon
10 the nature of the scene and the nature of the evidence in
11 question.
12 Q. Is there any other unit that could perform, basically, an
13 evidence gathering or evidence preserving function, other than
14 the unit identified in E?
15 A. Yes, there is.
16 Q. And what unit is that?
17 A. We have people that are identified as evidence technicians,
18 who are assigned geographically throughout the city who perform
19 evidence-related functions.
20 Q. And can a police officer or a sergeant also call upon an
21 evidence technician to respond to the scene to perform basic
22 preservation of a scene?
23 A. That would be something that would occur with extremely
24 more frequency than calling for the item identified in Item E.
25 Q. And why is that?
Klein - direct
1146
1 A. Only because the resource identified in Item E is a scarce
2 resource and is generally dedicated only to major scenes --
3 major crime scenes.
4 Q. Is the information contained in this question contained in
5 a general order?
6 A. Yes.
7 Q. And is the information -- is it --
8 MS. PAPUSHKEWYCH: Strike that.
9 BY MS. PAPUSHKEWYCH:
10 Q. Is the general order, if you know, the type of general
11 order that lists duties in terms of priorities?
12 A. I don't know the answer to that question.
13 Q. Well, let me see if I can refresh your recollection.
14 THE COURT: This is K, what?
15 MS. PAPUSHKEWYCH: K-7.
16 THE COURT: K-7.
17 MS. PAPUSHKEWYCH: Yes.
18 (Document tendered to the Court and witness.)
19 BY MS. PAPUSHKEWYCH:
20 Q. Turning to the general order, could you identify where in
21 the general order Answer D is?
22 A. It's listed under Item 2-A.
23 Q. And what does that basically address?
24 A. It addresses the responsibility of the officer conducting a
25 preliminary investigation who determines that certain evidence
Klein - direct
1147
1 may be available which requires processing and what that
2 officer's first responsibility is.
3 Q. And is there anything in that paragraph regarding a mobile
4 unit?
5 A. No, there is not.
6 Q. Thank you.
7 MR. FLAXMAN: What was the last question?
8 BY MS. PAPUSHKEWYCH:
9 Q. Let me turn to the second page of that and draw your
10 attention to the bottom of the page where there is an E.
11 According -- could you just give the citation to the particular
12 paragraph?
13 A. This would be Item 5-F, as in Frank.
14 Q. And according to that, whose duty is it under this general
15 order to call a mobile unit?
16 A. An evidence technician.
17 Q. Thank you.
18 (Document tendered.)
19 BY MS. PAPUSHKEWYCH:
20 Q. Could we turn to Question 29, please?
21 (Brief pause.)
22 BY THE WITNESS:
23 A. I've read the question.
24 BY MS. PAPUSHKEWYCH:
25 Q. Okay.
Klein - direct
1148
1 What is the correct answer?
2 A. Answer A is the correct answer.
3 Q. And why is that the correct answer?
4 A. Because that is the first activity that we require our
5 officers to engage in in such a scene or such an incident.
6 Q. And why isn't B the correct answer?
7 A. B is one of the things that is in addition to Item A that
8 the officer should do or would do, but B represents an outside
9 statewide resource that is basically a central
10 repository/referral agency, whereas Item A is an internal
11 department resource that brings other services to bear
12 immediately. And that's why we require that that be done
13 before anything else be done.
14 Q. In fact, calling your attention to what I will mark as --
15 or has been marked as K -- is it 9?
16 MR. FLAXMAN: K-8.
17 MS. PAPUSHKEWYCH: K-8.
18 BY MS. PAPUSHKEWYCH:
19 Q. Calling your attention to D --
20 MS. PAPUSHKEWYCH: You don't have this, your Honor.
21 I'm sorry.
22 THE COURT: That is all right. I think I can follow
23 well enough.
24 BY MS. PAPUSHKEWYCH:
25 Q. D-1.
Klein - direct
1149
1 Whose responsibility is it to call the Illinois
2 Department of Children and Family Services hotline?
3 A. It's the responsibility of the youth division.
4 Q. Thank you.
5 (Document tendered.)
6 BY MS. PAPUSHKEWYCH:
7 Q. Could you look at Question 37, please.
8 I'm sorry, I skipped one. 34 is next.
9 (Brief pause.)
10 BY THE WITNESS:
11 A. I've reviewed the question.
12 BY MS. PAPUSHKEWYCH:
13 Q. What is the correct answer?
14 A. The correct answer is A.
15 THE COURT: Okay.
16 I have a problem with this one. There is such an
17 obvious answer which has already been testified to.
18 BY MS. PAPUSHKEWYCH:
19 Q. Why is A the correct answer?
20 THE COURT: He knows his name and address, cannot find
21 his way home. Why did you not take him home? Why do we have
22 to make a federal case out of it?
23 BY MS. PAPUSHKEWYCH:
24 Q. Answer the question, if you can, Lieutenant.
25 A. Your Honor, the simple answer is, as a very practical
Klein - direct
1150
1 matter, we don't know where in proximity to the officer's
2 assignment this child lives. This child could live in
3 Wisconsin. This child could live in Evanston. This child
4 could live on the south side of the city. As frequently
5 occurs, they get on the El and they go to the north side of the
6 city. A police officer on the north side of the city does not
7 have the authority to drive to the south side of the city.
8 THE COURT: Then you take him to his home if he lived
9 down the street. I suppose if he lived in Wisconsin, then you
10 would have to do something else. I do not know. It just seems
11 to me it makes it very complicated.
12 BY MS. PAPUSHKEWYCH:
13 Q. Well, is taking --
14 THE COURT: And I am just wondering whether it really
15 makes any sense at all. Suppose the kid is just three doors
16 away or around the corner or something like that.
17 THE WITNESS: He would be taken home under those
18 circumstances.
19 THE COURT: Would you really go through all this?
20 MS. PAPUSHKEWYCH: Well, taking the child home is not
21 one of the alternatives, your Honor; and, again, this is a best
22 question answer. It's notify -- I am sorry, I shouldn't be
23 reading the --
24 THE COURT: No, but there is various ways content
25 validity has been attacked in this case, and one of them is
Klein - direct
1151
1 that it is not -- some of the questions are not related to what
2 is actually done or are misleading as to what should be done.
3 MS. PAPUSHKEWYCH: May I just ask the witness to
4 explain why is A important for a sergeant to know?
5 THE WITNESS: We have missing children, again,
6 unfortunately, on a very frequent basis in the City of
7 Chicago. We have tender-age children who are under the age of
8 13 that use public transportation and traverse the city on
9 their own without supervision. And we repeatedly have them
10 lost during the holiday seasons, during other events that they
11 travel throughout the city to attend.
12 And it's very implausible for us to have officers
13 traveling around the entire city transporting these children.
14 That's why we have a special youth division that handles those
15 types of matters, so officers that are assigned to districts
16 can stay within their area of responsibility.
17 If, as you suggested, Judge, if the child lived three
18 doors away, certainly that's something that we would do, but
19 that's not what the question calls for.
20 THE COURT: And you are to give the best answer?
21 THE WITNESS: Yes, sir.
22 BY MS. PAPUSHKEWYCH:
23 Q. And calling your attention to what has been marked as K-9,
24 I will call your attention to the general order.
25 (Document tendered to Court.)
Klein - direct
1152
1 BY MS. PAPUSHKEWYCH:
2 Q. Specifically, I am looking at -- if it's 4-A-2-B, which
3 talks about if the child is identified.
4 (Document tendered.)
5 BY MS. PAPUSHKEWYCH:
6 Q. Could you read the portion which says what should be done
7 with that child?
8 THE COURT: It's reassuring.
9 MS. PAPUSHKEWYCH: It's reassuring?
10 THE COURT: B-1.
11 MS. PAPUSHKEWYCH: I'm sorry.
12 BY THE WITNESS:
13 A. 4-A-2-B, and you wanted me to read what --
14 BY MS. PAPUSHKEWYCH:
15 Q. I have lost --
16 A. -- occurs if the child is identified?
17 Q. Right.
18 A. Our order prescribes that we would provide for the return
19 of the subject to his family or a person that will be
20 responsible for his welfare. The second thing is notify
21 missing persons.
22 Q. Thank you.
23 (Document tendered.)
24 THE COURT: So, the order is rational, and it is just
25 that the question is set up so one of them is not an option?
Klein - direct
1153
1 THE WITNESS: Yes, sir.
2 THE COURT: All right.
3 BY MS. PAPUSHKEWYCH:
4 Q. Question 37, please.
5 (Brief pause.)
6 BY THE WITNESS:
7 A. I've read the question.
8 BY MS. PAPUSHKEWYCH:
9 Q. Is the correct answer E?
10 A. Yes, it is.
11 Q. And, again, is this an answer that is prescribed by general
12 orders?
13 A. Yes, it is.
14 Q. There has been testimony that D, as in Darka, is what
15 normally happens --
16 THE COURT: I have been saying "dog" all his time.
17 (Laughter.)
18 MS. PAPUSHKEWYCH: I am tired of dog.
19 THE COURT: Sorry. I will stand corrected on that.
20 BY MS. PAPUSHKEWYCH:
21 Q. -- (continuing) normally happens.
22 Would you be surprised to know that D happens, that
23 somebody has testified in this courtroom that D normally
24 happens?
25 A. I would be surprised that it normally happens.
Klein - direct
1154
1 What -- we have thousands upon thousands upon
2 thousands of curfew violators every year in the city that we
3 take into custody. If we required our officers to go to the
4 station and stay with the curfew violators until we could find
5 someone, we wouldn't have anybody on the street to respond to
6 calls for service.
7 Again, this is a circumstance where we have a youth
8 division that has been created to deal with these types of
9 circumstances. That's a supplemental resource we use, so our
10 officers can be free to go back to their assignments and
11 respond to calls for service. We don't want them, to use the
12 term, "babysitting" children all night long, sitting around the
13 station performing no police service.
14 Q. And is there any other reason that it is a good idea to
15 have youths and children under the age of 18, or whatever youth
16 is considered, to be centrally reported and documented?
17 A. Absolutely, for a variety of reasons. They have the
18 citywide capability of dealing with all missing persons and
19 coordinating descriptions, et cetera, citywide and being a
20 focal point where people can call if children are reported
21 missing.
22 But as a very humane and practical matter, a district
23 station is not where you want to have a juvenile staying for
24 any length of time. There is a lot of violence that occurs
25 around there, a lot of things we don't like young people to be
Klein - direct
1155
1 exposed to on a regular basis. And having them there in the
2 midst of all that for a long period of time not only interferes
3 with our district operation, it's not one of the best things to
4 have a child exposed to.
5 Q. Who is being asked this particular information in this
6 question -- or let me rephrase the question.
7 The question is attempting to elicit information about
8 an activity of a particular sergeant; is that right?
9 A. That's correct.
10 Q. And what sergeant is that?
11 A. This is the desk sergeant.
12 Q. And what are the desk sergeant's responsibilities?
13 A. The desk sergeant is basically responsible for the conduct
14 of activities that occur within the domain of the police
15 facility. The watch commander has overall responsibility. The
16 desk sergeant is in charge of the lockup, the desk area.
17 Q. And, so, it is that sergeant who, in fact, would be
18 responsible for who is allowed to stay in the station; is that
19 correct?
20 A. If the child were to be allowed to stay for some short
21 period of time until youth division personnel could arrive,
22 that child would be behind the desk area which divides the
23 public area from the police environment. So that while the
24 desk sergeant would be performing his or her duties -- bonding,
25 answering phones, dealing with citizens, whatever it may be --
Klein - direct
1156
1 the child is standing behind him or sitting behind him
2 somewhere. And if that were to occur with some frequency, that
3 creates a situation where there's a supervision problem.
4 Q. Thank you.
5 Question 40, please.
6 (Brief pause.)
7 BY THE WITNESS:
8 A. I read the question.
9 BY MS. PAPUSHKEWYCH:
10 Q. What's the correct answer?
11 A. The correct answer is E.
12 Q. Why?
13 A. There are two sets of circumstances for which we prescribe
14 procedures in this type of a situation. One involves a
15 circumstance where an offender is on the scene. One involves a
16 circumstance where the offender has left the scene.
17 This involves the latter. And the procedure that we
18 prescribe for our officers to follow is to attempt to obtain
19 resources or services for the victim in this situation, and the
20 method by which we obtain those services is through the service
21 identified in Item E.
22 Q. Would A be one of the activities that an officer or
23 sergeant would actually do at some point?
24 A. It may.
25 A is more properly an activity that would occur if the
Klein - direct
1157
1 first situation I described were in operation; that is, if the
2 offender were present on the scene.
3 Q. And, in your opinion, is the information contained in this
4 question the type of knowledge a sergeant needs to know?
5 A. Yes, it is.
6 Q. And why is that?
7 A. Because we respond to this with a very high degree of
8 frequency on a daily basis throughout the city.
9 Q. Question 44.
10 (Brief pause.)
11 BY THE WITNESS:
12 A. I have reviewed the question.
13 BY MS. PAPUSHKEWYCH:
14 Q. Is D the correct answer?
15 A. D, as in Darka, is the correct answer.
16 Q. Why isn't B the correct answer -- B, as in boy?
17 A. That's not actually the responsibility of the arresting
18 officer in these circumstances.
19 Q. What isn't the responsibility? The overseeing?
20 A. Overseeing.
21 Q. Question 56, please.
22 THE COURT: Are we going through the whole --
23 MS. PAPUSHKEWYCH: We are going through Pile 54 only.
24 We went through Pile 55 with Commander DeLopez, your Honor.
25 THE COURT: Yes, okay.
Klein - direct
1158
1 MS. PAPUSHKEWYCH: And this is the bad pile.
2 THE COURT: Okay.
3 I think maybe we ought to take a mid-afternoon break.
4 I have not had lunch yet. My soup I am going to microwave and
5 my bran muffin is waiting.
6 MS. PAPUSHKEWYCH: That's fine.
7 THE COURT: So, I --
8 MS. PAPUSHKEWYCH: It will be a while yet, so --
9 THE COURT: We will take a 15-minute break, and then
10 --
11 MR. FLAXMAN: Judge, we would both agree to give you a
12 20-minute break for lunch.
13 MS. PAPUSHKEWYCH: Yes.
14 THE COURT: Well, 15 will do it, but we can make up
15 for it, if we have to at the other end.
16 MS. PAPUSHKEWYCH: Okay.
17 THE COURT: Les "Cut the Taxes" Golden will have to
18 wait five minutes, but I will make up for the additional time.
19 All right. We will stand in afternoon recess at this
20 time.
21 (Whereupon, a recess was taken.)
22 THE COURT: All right.
23 The witness resuming his position and remaining under
24 oath, you may continue on now with your case in chief.
25 MS. PAPUSHKEWYCH: Thank you.
Klein - direct
1159
1 THE COURT: Question 44, is that --
2 MS. PAPUSHKEWYCH: I believe we finished Question 44.
3 THE WITNESS: I'm on 55.
4 THE COURT: 55.
5 THE WITNESS: That's where I left my book.
6 MS. PAPUSHKEWYCH: I think we're at -- actually, the
7 next one is 56.
8 THE COURT: 56.
9 MS. PAPUSHKEWYCH: Correct.
10 BY THE WITNESS:
11 A. I've read the question.
12 BY MS. PAPUSHKEWYCH:
13 Q. Okay.
14 In this question, who is seeking the information?
15 A. The patrol officer.
16 Q. And from whom is he seeking the information?
17 A. The field sergeant.
18 Q. And is the information being sought important knowledge for
19 a sergeant to know?
20 A. It certainly is.
21 Q. What is the correct answer?
22 A. The correct answer is E.
23 Q. Why isn't A a correct answer to this question?
24 A. That Answer A is not the responsibility of the police
25 officer.
Klein - direct
1160
1 Q. And whose responsibility is it to record the name of that
2 particular place?
3 A. The lockup keeper.
4 Q. And is that responsibility identified in the general orders
5 of the Chicago Police Department?
6 A. Yes, it is.
7 Q. Okay.
8 Question 57.
9 (Brief pause.)
10 BY THE WITNESS:
11 A. I've read the question.
12 BY MS. PAPUSHKEWYCH:
13 Q. Okay.
14 Give me a moment, please.
15 (Brief pause.)
16 BY MS. PAPUSHKEWYCH:
17 Q. What is the correct answer to Question 57?
18 A. Correct answer is E.
19 Q. Why is that the correct answer?
20 A. That is the only answer that is the responsibility of the
21 police officer.
22 Q. Well, how about the answer that is contained in question
23 B? Whose responsibility is that?
24 A. That is the responsibility of the supervisor.
25 Q. And, again, is the responsibilities of the various police
Klein - direct
1161
1 officers and supervisors who would respond to this type of
2 incident contained in the general order?
3 A. Yes, it is -- or yes, they are.
4 Q. Is the information contained in this question the type of
5 knowledge a sergeant needs to know?
6 A. Yes.
7 Q. And why is that?
8 A. Because this is a serious incident. Although it may not
9 occur with as high a degree of frequency as some of the other
10 daily occurrences, this type of a circumstance is viewed as a
11 very serious matter.
12 Q. And what is the result of the patrol officer doing E? What
13 happens to the report referenced in E?
14 A. It becomes part of an investigation regarding this conduct.
15 Q. What type of investigation?
16 A. A complaint register investigation.
17 Q. Under the circumstances, might a sergeant, in fact, do B?
18 A. In all likelihood, that would be performed by a sergeant,
19 yes.
20 Q. Thank you.
21 Question 58 --
22 THE COURT: Well, if I could ask, 57 --
23 MS. PAPUSHKEWYCH: Yes.
24 THE COURT: -- why is E more correct than B?
25 BY MS. PAPUSHKEWYCH:
Klein - direct
1162
1 Q. Could you answer --
2 THE COURT: I mean, it would seem to me you would have
3 to do it right away or you would lose the benefit of any test.
4 THE WITNESS: Your Honor --
5 THE COURT: You would -- on the face of it, it looks
6 like, you know, the officer is going to get a pass because you
7 are not administering a test.
8 THE WITNESS: What would happen, your Honor, in
9 practice is, if this officer were going to be charged with
10 driving under the influence, there would have to be a number of
11 things that would have to occur prior to that.
12 When -- we would do the criminal aspect of it prior to
13 any further activities taken, which would mean administering
14 the various tests that would be necessary, issuing him a
15 citation, conducting a breathalizer examination.
16 If all those things were to occur at the scene, which
17 they would not, after that point in time, someone would have to
18 tell him that we have completed or concluded the criminal
19 portion of the investigation, which would allow him to invoke
20 certain rights that he has. We would then move to the
21 administrative portion, under which he has less rights.
22 So, that would not occur on the scene. We would need
23 the officer to prepare this To/From subject report almost
24 contemporaneous with the incident. I don't know if that's a
25 good explanation.
Klein - direct
1163
1 THE COURT: So, the citizen that has been hit by his
2 car and all the rest of it, all they see is that the officer
3 leaves the scene without any indication that he is going to be
4 tested or the like?
5 THE WITNESS: No, he would be processed under -- we
6 would probably treat him somewhat different than we would treat
7 a non-police officer in that he may not be handcuffed or
8 something of that nature. But he -- if he was going to be
9 arrested and processed, we would take him back into a district
10 facility and arrest and process him for the criminal portion of
11 the investigation. And, then, the administrative, which is our
12 internal investigation, would come subsequent to this.
13 THE COURT: And the testing usually occurs back at the
14 station, anyway; is that right?
15 THE WITNESS: Yes, it would.
16 THE COURT: You do not test on the street?
17 THE WITNESS: We very seldom test on the street. It's
18 not generally safe to do that.
19 THE COURT: Okay.
20 You may proceed.
21 BY MS. PAPUSHKEWYCH:
22 Q. Question 58.
23 (Brief pause.)
24 BY THE WITNESS:
25 A. I've read the question.
Klein - direct
1164
1 BY MS. PAPUSHKEWYCH:
2 Q. Is A the correct answer?
3 A. Yes, it is.
4 Q. Is the information contained in this question the type of
5 knowledge a sergeant needs to know?
6 A. Yes, it is.
7 Q. Why is that?
8 A. As I've indicated, these types of situations occur with a
9 great degree of frequency throughout the city on a daily basis.
10 Q. I believe you testified that the general order on Illinois
11 domestic violence --
12 MS. PAPUSHKEWYCH: Strike that.
13 BY MS. PAPUSHKEWYCH:
14 Q. You have testified that there was a general order regarding
15 Illinois domestic violence back in 1993; is that correct?
16 A. That's correct.
17 Q. And do you know whether or not there has been any addendum
18 or any changes to that general order?
19 A. I don't believe so.
20 Q. Why is it important, in your opinion, that the police
21 officer be instructed that A is more -- is the correct answer
22 as opposed to B?
23 A. The historical reason, counsel, and, your Honor, is that in
24 days past, in years past, these types of circumstances were
25 treated in a manner different than we would normally respond to
Klein - direct
1165
1 criminal incidents. We would treat them in many instances as
2 social incidents or as family incidents or as incidents
3 involving the church or other social institutions. We would
4 not treat them as purely criminal incidents.
5 And we now take a different view. We treat them as
6 criminal matters in which the conduct constitutes a criminal
7 offense, and we treat them accordingly.
8 Q. Thank you.
9 Question 59.
10 (Brief pause.)
11 BY THE WITNESS:
12 A. I've read the question.
13 BY MS. PAPUSHKEWYCH:
14 Q. What does this question call for?
15 A. It calls for the sergeant to advise the officer as to how
16 to complete a particular form that we utilize in the police
17 department.
18 Q. And in order to answer this question correctly, do you have
19 to have some pretty good familiarity with that particular form?
20 A. Well, you need to not only be able to know which form you
21 are going to use from among the many, many forms that we have,
22 you have to be able to understand how to complete the form.
23 And you, even beyond that, need to know under what
24 circumstances you can use this type of a form.
25 Q. What are the circumstances under which the form is used?
Klein - direct
1166
1 A. The form is used for less serious ordinance violations that
2 don't require a physical arrest.
3 Q. Is the correct answer C?
4 A. Yes, it is.
5 Q. And why is that the correct answer?
6 A. It's basically the only answer of the choices that is
7 factually accurate.
8 Q. And does this -- does the sergeant need to know this on the
9 scene?
10 A. Yes, he does.
11 Q. Why is that?
12 A. Well, this involves a determination of an alternative way
13 to handle or resolve a dispute. The alternative would be to
14 engage in a physical arrest. We try to avoid that if it's at
15 all possible. If the circumstances meet the criteria for
16 allowing this type of a form to be completed and the people to
17 go on their way, we would prefer to resolve it that way.
18 If the sergeant is unaware of that process being
19 available to him, what would likely result would be a physical
20 arrest.
21 Q. Thank you.
22 Question 65.
23 (Brief pause.)
24 BY THE WITNESS:
25 A. I've read the question.
Klein - direct
1167
1 MS. PAPUSHKEWYCH: Did you have a question, your
2 Honor?
3 THE COURT: No, I decided to restrain myself.
4 Go ahead.
5 Well, I was going to asking on 59 how they handle the
6 question of bond.
7 THE WITNESS: Well --
8 THE COURT: I am just getting off, and then we are --
9 MS. PAPUSHKEWYCH: There's a question on bond, though,
10 later on, I believe, in this set.
11 THE COURT: Yes, I know it is not in the answer. That
12 is why I did not --
13 THE WITNESS: Your Honor, it's basically personal
14 recognizance is what it is. If it's a less serious ordinance
15 matter, generally, involving neighbors or businesspeople that
16 we believe to be reputable, we believe there's no likelihood
17 the activity will recur, there's no likelihood of injuries.
18 It's a minor type of an incident, but yet it is an ordinance
19 violation. So, we do it on recognizance.
20 THE COURT: Normally, but I suppose --
21 THE WITNESS: Normally.
22 If it were a situation that we didn't believe that
23 that would be appropriate --
24 THE COURT: But that is not in the question, so that
25 is why I did not ask.
Klein - direct
1168
1 All right. So, you may proceed.
2 MS. PAPUSHKEWYCH: I think we are all learning a lot.
3 BY MS. PAPUSHKEWYCH:
4 Q. Question 65, what's the correct answer?
5 A. The correct answer is C.
6 Q. Have you ever heard of anyone --
7 MS. PAPUSHKEWYCH: Strike that.
8 BY MS. PAPUSHKEWYCH:
9 Q. Have you ever had occasion to be asked this question?
10 A. Yes, I have.
11 Q. And on that occasion, what did you do?
12 A. I advised the people that they needed to contact the City
13 Clerk's office because the City Clerk's office is the city
14 agency responsible for these matters. They are the ones that
15 promulgate the appropriate paperwork, and that is where the
16 process starts. If there is to be such a claim made, the place
17 that you need to begin that process is with the City Clerk's
18 office.
19 Q. Would you determine that a field sergeant should instruct
20 the patrol officer as listed in D -- to the entity listed in D?
21 A. It's not-- it's my understanding that nowhere in our policy
22 or policies or procedures do we direct our police officers to
23 refer people to the entity identified in Item D.
24 Q. Thank you.
25 Is this important for a sergeant to know?
Klein - direct
1169
1 THE COURT: Which question are we dealing with?
2 MS. PAPUSHKEWYCH: I'm sorry. 65 still, your Honor.
3 THE COURT: Oh, okay.
4 MS. PAPUSHKEWYCH: Oh, I'm sorry.
5 THE COURT: No, I got the wrong number. That explains
6 -- all right.
7 MS. PAPUSHKEWYCH: The C versus D question.
8 THE COURT: Right.
9 BY MS. PAPUSHKEWYCH:
10 Q. And I think you explained that the City Clerk's office is
11 the beginning of the process in terms of service on the city?
12 A. That's correct.
13 Q. Why is that important to know?
14 A. This deals with relatively minor claims against the city --
15 pothole damage, things of that nature -- that occur pretty
16 frequently. And people don't know how to obtain access to city
17 services in some cases. So, the police department is the first
18 point of contact in many cases.
19 Q. Thank you.
20 I'm going on to Question 70. Could you review that?
21 A. I've read the question.
22 Q. What is the correct answer?
23 A. The correct answer is C.
24 Q. Would D ever be a correct answer, if you know?
25 A. It could be under certain circumstances.
Klein - direct
1170
1 Q. And what would those be?
2 A. It may well be if the individual that were the offender in
3 the stem question activity were a husband or a loved one or a
4 live-in or some significant other.
5 Q. Now, is the order of protection something that the police
6 department issues?
7 A. No.
8 Q. And, so, in terms of police activity, what is the
9 appropriate answer?
10 A. The appropriate answer is C. That is our way of commencing
11 the investigative process.
12 When this particular offense was enacted several years
13 ago, it was enacted not without some notoriety accompanying its
14 passage. And, as a consequence and in recognition of the
15 significant social issues involved with it, we enacted a
16 process within the police department to deal with these types
17 of situations from a systemic, an organization-wide and city
18 services perspective. And the first point in that process is
19 the answer identified in Item C.
20 Q. And, so, the answer identified in Item C is what begins the
21 investigation process of the actual call from the woman; is
22 that correct?
23 A. That's correct.
24 Q. And D might be something that the officer could
25 additionally advise as she may want to go ahead and seek; is
Klein - direct
1171
1 that correct?
2 A. It may be a consequence that comes somewhere down the line.
3 Q. Thank you.
4 Question 72.
5 (Brief pause.)
6 BY MS. PAPUSHKEWYCH:
7 Q. What information -- I'm sorry.
8 A. I've read the question.
9 Q. What information is being sought by this question?
10 A. What the appropriate -- the sergeant has arrived at the
11 scene of an incident and there is some activity occurring at
12 the incident. And the question seeks to elicit what the
13 responsibility of the sergeant as the responding officer is.
14 Q. Is B the correct answer?
15 A. Yes, it is.
16 Q. Why is that the correct answer?
17 A. Well, it's the correct answer because all the other answers
18 are incorrect.
19 (Laughter.)
20 BY MS. PAPUSHKEWYCH:
21 Q. Well, why don't you tell us why E, which seemed very
22 popular, is incorrect?
23 A. Well, it's certainly not a felony.
24 Q. Okay.
25 Why is A incorrect?
Klein - direct
1172
1 A. Because that's not a procedure that applies to this type of
2 an incident.
3 Q. Why is C incorrect?
4 A. We're not aware that there is any such violation.
5 Q. And why is D incorrect?
6 A. Because, again, we are not aware that any such violation
7 has occurred.
8 Q. Just for our general knowledge, if the motorist is willing
9 to take the car away, what is the consequences of that under
10 the general orders?
11 A. I'm not sure I understand the question.
12 MS. PAPUSHKEWYCH: Strike that.
13 THE COURT: The problem is money for the private tow.
14 MS. PAPUSHKEWYCH: Okay. I didn't --
15 THE COURT: That is the problem.
16 MS. PAPUSHKEWYCH: Okay.
17 MS. PAPUSHKEWYCH: Never mind.
18 THE COURT: That is why the guy wanted to tow it away,
19 so he could get money.
20 MS. PAPUSHKEWYCH: So he could get money, okay.
21 Thanks for clarifying that.
22 THE COURT: Cher chez la mone.
23 BY MS. PAPUSHKEWYCH:
24 Q. Question 75.
25 (Brief pause.)
Klein - direct
1173
1 BY THE WITNESS:
2 A. I read the question.
3 BY MS. PAPUSHKEWYCH:
4 Q. Is there a general order that addresses, basically,
5 criminal history records?
6 A. There certainly is.
7 Q. And why, if you know, is there a general order that
8 addresses criminal history records?
9 A. Well, there are a variety of reasons. Being a large
10 jurisdiction and given our relationship with the media and
11 general media interest in the activities of police departments
12 and the nature of crime in this city, we are constantly beset
13 with requests from the media for varieties of information:
14 Criminal history, background information being one of those.
15 Because we are a large and geographically spread out
16 organization, we determined that, rather than have a multitude
17 of responses and different people providing varying types of
18 information, we would identify a process by which that would
19 occur in some systematic fashion.
20 We also have a First Amendment consent decree under
21 which we operate, and we wanted to ensure from a management and
22 policy perspective that we comply with the provisions of that
23 decree when we disseminate information about people's
24 backgrounds.
25 Q. Is the correct answer B?
Klein - direct
1174
1 A. Yes, it is.
2 Q. Why isn't the correct answer E?
3 A. Only because the individual identified in Item B is the
4 custodian of those records.
5 Q. So, is there a different --
6 MS. PAPUSHKEWYCH: Strike that.
7 BY MS. PAPUSHKEWYCH:
8 Q. If the reporter were, in fact, seeking information
9 regarding current arrest information, would the answer be
10 different, if you know?
11 A. No, the director of the records division is the repository
12 for all department arrest information.
13 Q. Question 76, please.
14 (Brief pause.)
15 BY THE WITNESS:
16 A. I have read the question.
17 BY MS. PAPUSHKEWYCH:
18 Q. Could you tell us what the -- who issues the card in
19 question?
20 A. The card is issued by the director of news affairs.
21 Q. And that director of news affairs is in the Chicago Police
22 Department?
23 A. That's correct. That is an office that is contained within
24 the office of the superintendent of police.
25 Q. Why is D not the right answer?
Klein - direct
1175
1 A. I'm sorry, D, as in --
2 Q. D, as in Darka.
3 A. Why is that not? Because, to my knowledge, there is no
4 criminal offense for this type of conduct.
5 Q. Question 81 -- actually, I have no questions on Question 81
6 at this time.
7 Question 83, please.
8 (Brief pause.)
9 BY THE WITNESS:
10 A. I've read the question.
11 BY MS. PAPUSHKEWYCH:
12 Q. In Question 83, what is being sought?
13 A. The police officer is inquiring of a sergeant the correct
14 information to be able to set a court date.
15 Q. Now, the patrol officer is looking at something called the
16 court key date card. What is that?
17 A. Due to the volume of the arrest and traffic activity that
18 we have in this city, we have standardized and scheduled court
19 appearances in conjunction with the Circuit Court of Cook
20 County to ensure that we don't over-book their courtrooms, to
21 ensure that we spread the workload out citywide for the various
22 courts that handle these types of activities.
23 And, in conjunction with the court system in Cook
24 County, we have come upon a scheduling system which we have
25 reduced to a matrix which each of the officers has that
Klein - direct
1176
1 explains to them, if they make a certain type of arrest, which
2 court branch it has to be scheduled for, what the timing of the
3 appearance -- the initial appearance should be, and what the
4 time of the initial appearance should be. So that we can work
5 with the courts in ensuring the quick movement of cases through
6 the system.
7 Q. So, in this, the patrol officer is actually looking at his
8 own card to determine when he is available -- he or she is
9 available for court; is that correct?
10 A. They have certain days every month that they are to -- that
11 they would be appearing in misdemeanor court or in traffic
12 court. And based upon what -- where you are at in a particular
13 month, you need X amount of days.
14 For example, if my court key for my misdemeanor court
15 was next week on the 20th and I make an arrest tomorrow, I
16 don't have the sufficient number of -- enough time between now
17 and my court key date for the paperwork to get where it needs
18 to get through the system to allow me to appear on that date.
19 So, I would then have to go to the next date.
20 Q. So, is it important to know the minimum number of days
21 asked for in this question?
22 A. Yes, it is, because what happens if you don't is you are
23 booking cases for court, and the individual and you will appear
24 and the processing of the documents will not have occurred and
25 they will not be available at the appearance, and you will have
Klein - direct
1177
1 appeared and the offender defendant will have appeared and the
2 court will be unprepared to hear the matter.
3 Q. Thank you.
4 The next question would be Question 93 -- I'm sorry
5 87.
6 (Brief pause.)
7 BY THE WITNESS:
8 A. I have read the question.
9 BY MS. PAPUSHKEWYCH:
10 Q. Who accepts bail under these circumstances?
11 A. Whoever is issuing the traffic citation.
12 Q. And could it be a field sergeant?
13 A. It could be a field sergeant.
14 Q. Is this something that normally is done by a desk sergeant?
15 A. It would not be done by a desk sergeant, unless if it's a
16 minor traffic violation that can be handled on the street by
17 means of a personal service citation and the receipt of an
18 appropriate bail, being the driver's license or whatever it may
19 be, that's appropriate.
20 If it's a certain type of offense which was a more
21 serious offense, then it may require some cash bond for which
22 the individual would have to be taken to a district, and a desk
23 sergeant would then process that matter.
24 Q. And is this a --
25 THE COURT: No, I just -- I take it that a driver's
Klein - direct
1178
1 license would be correct, but that's not given as an answer.
2 THE WITNESS: That's correct, Judge.
3 THE COURT: But could you describe what CTA memorandum
4 card means?
5 THE WITNESS: That is a card that CTA bus drivers
6 carry. And because we don't want to take CTA bus drivers into
7 custody and we don't want to take their driver's license away
8 from them, we will accept this card from them in lieu of bail.
9 THE COURT: I see.
10 Go ahead.
11 BY MS. PAPUSHKEWYCH:
12 Q. And what is wrong with A and B -- excuse me, A and E as
13 answers?
14 A. We do not accept those as bail in lieu of citations.
15 Q. Thank you.
16 Question 93.
17 (Brief pause.)
18 BY THE WITNESS:
19 A. I've read the question.
20 BY MS. PAPUSHKEWYCH:
21 Q. What is this question -- what information is being sought
22 by this question?
23 A. In my view, it's seeking to determine whether the
24 individual taking or reading this question or responding to
25 this question can determine between felonies and misdemeanors.
Klein - direct
1179
1 Q. Is that ability to distinguish between felonies and
2 misdemeanors important for a sergeant?
3 A. Yes, it is.
4 Q. And why is that?
5 A. As I had previously testified, there is a whole different
6 process that attaches to felonies, as opposed to misdemeanors,
7 with respect to seeking approval of charges, to the paperwork
8 that's required, to the bonding aspects of it. There is -- one
9 felony as being a much more serious occurrence as opposed to
10 misdemeanors, which are handled in a somewhat different manner.
11 Q. Is this the type of offense that would be referred to the
12 detective division?
13 MR. FLAXMAN: Objection. Which type of offense?
14 MS. PAPUSHKEWYCH: The offense in D.
15 BY THE WITNESS:
16 A. The offense in D, as in Darka?
17 BY MS. PAPUSHKEWYCH:
18 Q. Yes.
19 A. No, that would not be referred to detective division.
20 Q. Would it be referred to the State's attorney?
21 A. No, it would not.
22 Q. The next question is Question 101.
23 (Brief pause.)
24 BY THE WITNESS:
25 A. I've read the question.
Klein - direct
1180
1 BY MS. PAPUSHKEWYCH:
2 Q. In this question, the question is worded, "Should seek
3 approval to charge"; is that correct?
4 A. That's correct.
5 Q. When you were reviewing these questions as part of the
6 review conducted of the job knowledge test items, was there any
7 discussion about the language that appears in this question and
8 subsequent questions; and, that is the "seeking approval to
9 charge" language?
10 A. We had some extended discussion with Dr. Barrett &
11 Associates regarding that language.
12 Q. What was the nature of the discussion?
13 A. Well, I apologize, but I can't recall the phraseology that
14 they were using -- originally employing, but it was my sense
15 that that was language that was foreign to the Chicago Police
16 Department and was not language that the people would readily
17 understand when they were reading a question.
18 When I looked and when we analyzed what actually
19 occurred in the arrest and charging process, it was our opinion
20 and still is my opinion that seeking approval to charge is
21 actually what an arresting officer does. Because he can fill
22 out the paperwork, but that does not constitute a charge. So,
23 actually, you have to go to a watch commander, to a State's
24 attorney, for that signature. And that, to me, constitutes
25 seeking approval for a charge.
Klein - direct
1181
1 Q. And, so, was that language -- "seek approval to charge" --
2 basically, language that was included in these items because of
3 that discussion?
4 A. It was at our request, yes.
5 Q. What information is being sought by this question?
6 A. The question seeks to elicit what are the elements of the
7 offense of arson.
8 Q. And in order to determine what are the elements, is it
9 important to know the difference between the numbers that are
10 in B, D and E?
11 A. There is a dollar value associated with the charge, yes.
12 Q. And what is the correct answer?
13 A. Correct answer is B.
14 Q. Are some of these charges misdemeanors within the answer?
15 A. Some of the choices --
16 Q. Choices.
17 A. -- would represent misdemeanors, yes.
18 Q. And would the other ones represent felonies?
19 A. Yes.
20 Q. Is the information contained in this question the type of
21 knowledge a sergeant needs to know?
22 A. Yes.
23 Q. Why is that?
24 A. Because we have this type of occurrence throughout the city
25 not infrequently.
Klein - direct
1182
1 Q. Is it important for a sergeant to know the difference
2 between a felony and a misdemeanor?
3 A. Yes, it is.
4 Q. And why is that?
5 A. Again, it -- we are a process-oriented organization, and
6 how we characterize something at the onset determines what the
7 follow-up will be, what other types of resources will be
8 brought to bear, what types of reports are completed.
9 And the initial categorization or classification is
10 what commences that process. So, it's important for them to
11 know what that proper classification is.
12 Q. And what is the sergeant's role in that process?
13 A. Reviewing -- providing advice in the first instance, if the
14 officer is uncertain, and reviewing the documentation to ensure
15 that proper classifications and elements of offense are present
16 to support the classifications.
17 Q. Now, does the answer to this question depend on who within
18 the police department is seeking approval of the charge?
19 A. No.
20 Q. Does the answer to this question depend on whether it is a
21 police officer or a sergeant being asked this question?
22 A. No.
23 Q. Does the answer to this question depend on whether you are
24 a field or a desk sergeant?
25 A. No.
Klein - direct
1183
1 Q. Question 104.
2 (Brief pause.)
3 BY THE WITNESS:
4 A. I read the question.
5 BY MS. PAPUSHKEWYCH:
6 Q. What information is being sought in this question?
7 A. The question sets forth certain elements or certain
8 activities that had occurred and the -- it seeks to elicit what
9 would be the appropriate charge to be sought based upon the
10 elements that are set forth.
11 Q. Are some of these charges misdemeanors?
12 A. Yes.
13 Q. And are some of these charges felonies?
14 A. I believe so.
15 Q. Is the information contained in this question the type of
16 knowledge a sergeant needs to know?
17 A. Generally speaking, yes. This is another question where we
18 may run into this type of circumstance infrequently and the
19 sergeant would -- or the police officer, as well, would have to
20 be generally familiar with the general subject matter area from
21 which the answer would come. But it is one of those incidents
22 that does not occur with a great deal of frequency which they
23 could confirm at some subsequent time.
24 Q. Does the answer to this question depend on who within the
25 police department is seeking approval of the charge?
Klein - direct
1184
1 A. No, it does not.
2 Q. Does the answer to this question depend on whether it's a
3 police officer or a sergeant who is being asked this question?
4 A. No, it does not.
5 Q. Does the answer to this question depend on whether you're a
6 field sergeant or a desk sergeant?
7 A. No.
8 Q. Question 109, please.
9 (Brief pause.)
10 BY THE WITNESS:
11 A. I've reviewed the question.
12 BY MS. PAPUSHKEWYCH:
13 Q. Is the crime described in Question 109 something that
14 occurs with any frequency, if you know?
15 A. Yes, it does.
16 Q. And why do you say that?
17 THE COURT: Yes, it does, what? Any frequency or --
18 THE WITNESS: With some frequency.
19 THE COURT: Some frequency, okay.
20 THE WITNESS: This is what I call a designer crime,
21 your Honor. We've had crimes classifications that would have
22 covered this in years past. This would have constituted
23 something called criminal damage to property. But because of
24 the frequency and because of the targeting by certain
25 individuals at certain locations, the legislature sought to
Klein - direct
1185
1 create a specific classification of crime for it.
2 The types of locations that are required to make this
3 charge proper are located throughout the city; and, again,
4 unfortunately, we do have damage occurring in these
5 institutions, you know, not infrequently.
6 BY MS. PAPUSHKEWYCH:
7 Q. And what is one of the criteria in order for it to be an
8 institution that is covered under this section?
9 A. Well, it has to be delineated in the statute.
10 Q. I'm going to show you what has been marked as Defendant's
11 Exhibit K-27. Could you please read -- it's 5/21-1.2 of the
12 Compiled Statutes A? Could you read the definition of
13 "institutional vandalism"?
14 A. "Institutional vandalism:
15 "(A) A person commits institutional vandalism when
16 by reason of their race, color, creed, religion or national
17 origin of another individual or group of individuals, he
18 knowingly and without consent inflicts damage to any of the
19 following properties, provided that the damage inflicted is
20 at least $300."
21 It then lists five subcategories with Subcategory 3
22 being, "Any school, educational facility or community center."
23 Q. Thank you.
24 Is the information contained in this question the type
25 of knowledge a sergeant needs to know?
Klein - direct
1186
1 A. Yes.
2 Q. And why is that?
3 A. In order to ensure correct charging and correct case report
4 classification.
5 Q. What is case report classification?
6 A. One of the documents that you tendered before, counsel, was
7 what is called a general offense case report. That is the
8 business record that the police department creates in response
9 to criminal incidents.
10 That document -- beyond a recounting of what occurred
11 when the officer responded and a description of victims,
12 witnesses, offenders and other circumstances under which the
13 crime occurred -- requires that the offense be classified on
14 the top line; that a secondary classification be entered if
15 appropriate; and, that an Illinois Uniform Crime Reporting
16 number be associated with that offense. That's what I mean
17 when I say "the case reporting."
18 Q. Does the answer to this question depend on who within the
19 police department is seeking to classify the crime?
20 A. No, it does not.
21 Q. Question 110.
22 (Brief pause.)
23 BY THE WITNESS:
24 A. I've read the question.
25 BY MS. PAPUSHKEWYCH:
Klein - direct
1187
1 Q. What type of information is being sought by this question?
2 A. The narrative portion of the question sets forth what
3 purports to be the elements of a criminal offense, and the
4 answer choices set forth an array of possible choices which may
5 constitute the offense described.
6 Q. And is the information contained in this question the type
7 of knowledge a sergeant needs to know?
8 A. Yes, it is.
9 Q. And why is that?
10 A. Because these types of incidents occur not infrequently
11 throughout the city on a daily basis.
12 Q. Is E the correct answer?
13 A. Yes, it is.
14 Q. Why is D not the correct answer, if you know?
15 A. B, as in boy?
16 Q. D, as in Darka.
17 A. D, as in Darka.
18 Because that's not what the offense is -- that's not
19 what the Illinois Compiled Statutes classifies this offense as.
20 Q. Does the answer to this question depend on who within the
21 Chicago Police Department is seeking approval of the charge?
22 A. No.
23 Q. Does the answer to this question depend on whether it is a
24 police officer or sergeant who is being asked this question?
25 A. No.
1188
1 Q. Does the answer to this question depend on whether you are
2 a field or desk sergeant?
3 A. No.
4 MS. PAPUSHKEWYCH: Your Honor, I see it's 4:30. We
5 know you have another matter.
6 THE COURT: Do you have one final summation question
7 to --
8 MS. PAPUSHKEWYCH: Not yet. I have some more.
9 THE COURT: -- wrap it all up.
10 MS. PAPUSHKEWYCH: I have some more questions to go
11 through, although if I may have a moment, your Honor.
12 THE COURT: Yes.
13 (Brief pause.)
14 MS. PAPUSHKEWYCH: Your Honor, what we would like to
15 just -- my co-counsel and I have decided that first we would
16 like to move to strike Mr. Flaxman's expert's testimony on the
17 basis that it's not relevant to this case.
18 THE COURT: All right.
19 We will excuse this witness --
20 MS. PAPUSHKEWYCH: I am sorry.
21 THE COURT: -- and ask him to come back tomorrow. And
22 --
23 MS. PAPUSHKEWYCH: Yes.
24 THE COURT: -- depending upon how I rule on this
25 motion to strike depends upon when he comes back, I take it.
1189
1 MS. PAPUSHKEWYCH: He will be here first thing, your
2 Honor.
3 THE COURT: All right.
4 The basis for the motion to strike now is, what?
5 MS. PAPUSHKEWYCH: Is basically we do not believe that
6 any of the opinions offered by the witness were relevant, much
7 less probative, of any of the issues in this case.
8 She was not -- she has testified that she is not
9 involved in any promotional exam. She is not involved in any
10 job knowledge exam. She was -- she has done a battery of
11 assessments that basically sounds like it's a psychological and
12 other assessment for training. She has not been involved in
13 any test development whatsoever. And, on that basis, we would
14 move to strike her testimony.
15 THE COURT: Rather than get into the position of
16 answering some of these, we will call on counsel for plaintiffs
17 to perform that function.
18 MR. FLAXMAN: Dr. Barrett testified that he did not
19 include a test of oral comprehension because the ability to
20 understand oral communication, in his opinion, is measured by
21 reading comprehension. And Dr. Barrett then talked about how
22 it's the brain that processes all this information and said
23 they're the same.
24 And Dr. Lawrence has offered opinions to dispute that,
25 and it's relevant to the fact that the test did not directly
1190
1 measure all communication skills, and that they're different
2 than reading comprehension.
3 THE COURT: Okay.
4 MS. PAPUSHKEWYCH: We -- Dr. Barrett said that that
5 was one of many reasons, your Honor. We just don't think that
6 this --
7 THE COURT: I do not know that I heard a lot of other
8 reasons. I think he thought -- he -- my recollection -- I have
9 it written down here, but I will not take the time to try to
10 find it -- that it all went to a central processing center or
11 something like that --
12 MR. FLAXMAN: Those were his words.
13 THE COURT: -- in the brain or --
14 MS. GLINK: Your Honor, if I may summarize --
15 THE COURT: And, apparently, although it is not clear
16 -- I take it it could be clarified further by
17 cross-examination, but the witness, in effect, apparently was
18 disputing that.
19 MS. GLINK: Your Honor, even if she disputes that
20 issue, it's not relevant to the case. And the reason is that
21 she has to offer some opinion that the fact that it wasn't
22 directly tested for in any way impacts on the sufficiency of
23 the domain that has been tested. She can't offer an opinion to
24 that. The issue in the case is not what wasn't tested --
25 THE COURT: I do not understand that any particular
1191
1 witness has to testify to something that is completely
2 dispositive of the issue in the case. It seems to me it is
3 like a wall. You have got to build it brick by brick. This
4 may be a small brick that, in effect, is an analogy to what her
5 testimony is.
6 But it seems to me it is relevant. I do not say it is
7 conclusive or anything, but all I am saying is it seems to me
8 that since -- my recollection is that there was really
9 essentially only one reason given for not including that --
10 MS. GLINK: I would also like to address that point,
11 your Honor.
12 THE COURT: -- which is, again, relating to content
13 validity here.
14 And although I do not think the testimony was detailed
15 on that, but there apparently -- as I would have -- would
16 normally infer, without cross-examination from the witness'
17 testimony, that there were different areas of the brain for
18 processing and, in theory, there could be a differing result
19 between reading comprehension and oral comprehension.
20 MS. GLINK: Your Honor, I would like to address your
21 concern that that's the only reason. The reason that
22 Dr. Barrett put forth for not including a listening test is
23 that it was impractical. Remember he discussed the motor
24 vehicle listening test that he gave. It requires 30 minutes
25 per person one-on-one kind of communication. He said it was
1192
1 impractical, it was costly, that it had tended not to be useful
2 in employment situations. I believe his testimony went on for
3 about -- I've reviewed it -- seven or eight pages listing many
4 reasons why that wasn't included.
5 THE COURT: This had been another time then. I just
6 remember the one time. Maybe on subsequent questioning he gave
7 other reasons.
8 But whether he did or not, it seems to me it is still
9 relevant. Because I think at least the primary reason that he
10 gave, because he mentioned it each time, as I recall, was the
11 one that is being disputed by this witness.
12 So, I would find, for purposes of admissibility, that
13 it is enough. You are not required to accept the testimony,
14 and you have surrebuttal in theory, so --
15 MS. PAPUSHKEWYCH: We want to finish this week.
16 THE COURT: That may be the one thing that we can all
17 agree on.
18 MR. FLAXMAN: How long will this take -- if we were
19 trying this on the merits, how long --
20 MS. PAPUSHKEWYCH: I think we have.
21 MR. FLAXMAN: One other point that I would like to
22 raise is that in --
23 THE COURT: Well, anyway -- excuse me, before you get
24 to that.
25 MS. PAPUSHKEWYCH: Okay.
1193
1 THE COURT: So, I am going to deny the motion to
2 strike --
3 MS. PAPUSHKEWYCH: Fine.
4 THE COURT: -- for the reasons I have given.
5 MS. PAPUSHKEWYCH: Well, we will go back, and if --
6 THE COURT: So that -- and she will be here at 9:00
7 o'clock in the morning.
8 MS. PAPUSHKEWYCH: Fine. We will take it up tomorrow
9 morning.
10 THE COURT: Her testimony will be completed before,
11 then, Mr. Klein's testimony is.
12 MR. FLAXMAN: Now, in cross-examining Mr. Klein, I
13 might be seeking to refer to the actual answer sheets of the
14 people who took the test, and I have not been given the answer
15 sheets. I've been given the data on a computer file, and I
16 would ask if the city could get the actual answer sheets.
17 THE COURT: 2,000 some sheets?
18 MS. GLINK: 4700.
19 MR. FLAXMAN: 4700.
20 THE COURT: 4700 sheets.
21 MR. FLAXMAN: Actually, I just want first -- the
22 highest scoring hundred and the people who were promoted are
23 the answer sheets I want, and I told them who I wanted.
24 MS. PAPUSHKEWYCH: Your Honor, this case is two years
25 old almost, and --
1194
1 THE COURT: Had you previously requested that?
2 MS. PAPUSHKEWYCH: No.
3 MR. FLAXMAN: I was given that data in a
4 computer-readable form, and I haven't --
5 MS. GLINK: He was given the data in the form he had
6 requested it originally.
7 MR. FLAXMAN: And I have it in my computer. There
8 might be some evidentiary problems with the city saying that
9 the way I have it in my computer isn't exactly the way that
10 they gave it to me. And it's -- I think it would be useful to
11 some extent.
12 THE COURT: For, what? To verify the -- to verify,
13 what?
14 MR. FLAXMAN: Well --
15 THE COURT: You want to see whether somebody doodled
16 on there or --
17 MR. FLAXMAN: Actually, what I planned to do in
18 cross-examination of Mr. Klein --
19 THE COURT: Or wrote that, "This is a lousy question,"
20 or something.
21 MR. FLAXMAN: No, it's to say, "Well, do you think
22 that somebody who didn't know the answer to this question
23 should be promoted to sergeant," and then follow up by showing
24 that people who did not know the answers to these questions
25 were, in fact, promoted to sergeant without any additional
1195
1 training from the city.
2 In order to prove that up, I need to show that --
3 MS. PAPUSHKEWYCH: Item by item?
4 MR. FLAXMAN: -- people didn't answer questions.
5 THE COURT: You are attacking the validity of this
6 test by saying that some of the people that were promoted under
7 this test did not get all the questions right? I mean, is that
8 not what you are saying?
9 MR. FLAXMAN: No, what --
10 THE COURT: What has that got to do with anything?
11 MS. PAPUSHKEWYCH: Without an expert?
12 MR. FLAXMAN: What I'm trying to say is that the City
13 of Chicago, even though Mr. Klein says it's important to know
14 the answers to these questions, people were promoted to
15 sergeant who did not know the answers to these questions
16 without any training to educate them in what the answers were.
17 THE COURT: Afterwards?
18 MR. FLAXMAN: That's correct.
19 And if that's the practice, then these questions can't
20 be very important.
21 MS. PAPUSHKEWYCH: Well, that's argument, your Honor.
22 THE COURT: So, every question that anybody missed
23 that was promoted, in your view, in order to -- in a rational
24 police department would have been required to review and
25 include all of those in the training program.
1196
1 MR. FLAXMAN: That's correct.
2 MS. PAPUSHKEWYCH: I think that's argument, your
3 Honor. He has had --
4 THE COURT: Well, I mean, he needs to get the evidence
5 to make the argument.
6 MS. PAPUSHKEWYCH: And it's a different case than this
7 case. This case is about the content validity of the items.
8 THE COURT: Yes, I do not see how it relates to the
9 test.
10 MR. FLAXMAN: It relates to --
11 THE COURT: Well, I see. You are impeaching his
12 statement --
13 MR. FLAXMAN: Right.
14 THE COURT: -- that it is important to know.
15 MR. FLAXMAN: And 4700 sheets of paper is one of these
16 boxes that we've been bringing to court every day.
17 MS. PAPUSHKEWYCH: We do not have 4700 answer sheets
18 in the courtroom, your Honor.
19 THE COURT: Well, you are not asking for 4700.
20 MR. FLAXMAN: No.
21 THE COURT: You said, you only asked for the ones that
22 were promoted.
23 MS. PAPUSHKEWYCH: We do not have the answer sheets in
24 our possession today. I don't know where they are, your Honor,
25 and this is outrageous. This is supposed to be a preliminary
1197
1 injunction hearing. We have now been here for six full days.
2 THE COURT: Well, I would ask that you just -- that
3 you make an inquiry to see if they are available, if the box
4 can be delivered. But I really do not think it is appropriate
5 to delay ruling in the case until something that may be in a
6 warehouse or something --
7 MR. FLAXMAN: Well, I --
8 THE COURT: -- can be located.
9 MS. GLINK: Your Honor --
10 MR. FLAXMAN: I don't want to delay. I have given the
11 city a summary -- what I believe is a summary of the top 103,
12 and those are the answer sheets that I would like the city to
13 produce. They've had this for two days now.
14 MS. PAPUSHKEWYCH: We received a three-page --
15 THE COURT: Now, wait a minute. What do you mean by
16 -- you mean, the names of people?
17 MR. FLAXMAN: No.
18 I produced a proposed exhibit which lists the names of
19 the 103 highest ranking people and how they scored on 35
20 selected questions, which of those questions they got wrong.
21 And I've given this to the city, and -- I think I gave it to
22 the city. And I've asked them to see if they could get the
23 actual answer sheets.
24 THE COURT: Now, of course, this is what you should be
25 doing in discovery.
1198
1 MS. GLINK: Which has been ongoing, your Honor, for a
2 year-and-a-half.
3 THE COURT: And there's been plenty of time for
4 discovery.
5 MS. PAPUSHKEWYCH: And, your Honor --
6 THE COURT: Well, all right.
7 MS. GLINK: If I may just interpose an objection.
8 THE COURT: We are after the truth, and to the extent
9 that they would be readily available, I mean, available this
10 week --
11 MS. GLINK: Your Honor, if I can just interpose an
12 objection for the record.
13 THE COURT: Okay.
14 MS. GLINK: The undisputed testimony from our
15 industrial psychologist, which is the only expert who has
16 testified here, is that in order to test for whether an
17 individual has sufficient knowledge depends on an aggregation
18 of responses to an aggregation of questions. Whether one
19 person gets one question right or wrong is not a way to be
20 evaluating whether or not they have a sufficient body of
21 knowledge.
22 And I think that what Mr. Flaxman is trying to do is
23 he's trying to elicit expert testimony from people who aren't
24 experts in this field because he does not have an expert who
25 he's presented to this Court. He is creating his own exhibits,
1199
1 and he is trying to get them into evidence through our subject
2 matter experts who are simply --
3 THE COURT: Well --
4 MS. GLINK: -- you know, testifying as to what a
5 sergeant is responsible to know.
6 THE COURT: What the problem, of course, is that you
7 are making an assumption that is not necessarily true. And the
8 assumption is that the statement is false because they did not
9 cover it in the sergeant's review training program that they
10 have for the ones being appointed. And based on the testimony
11 that is given, that is not intended to cover every single
12 matter that is important to a sergeant --
13 MR. FLAXMAN: But the point that your Honor made is
14 that a rational police department --
15 THE COURT: -- period. I mean, that is -- so, that
16 being the case, then the inference that you seek to draw is a
17 very unlikely inference.
18 MR. FLAXMAN: But I think that your Honor was closer
19 before when, if this was a rational police department and it
20 was important that everybody know the answers to all of these
21 questions, there would be training --
22 THE COURT: Well --
23 MR. FLAXMAN: -- when they knew the people did not
24 know the answers.
25 THE COURT: There is a lot of things that would be
1200
1 nice if you could do it, but who knows how much time it would
2 take to cover every single thing that was sought to be
3 important. I suspect it would take a year to really do a
4 thorough job preparing and reviewing all of these things here.
5 You cannot -- you do not do all that.
6 I mean, as an example that hits home, are there not a
7 lot of things that the bar should be doing and, in fact, that
8 the Supreme Court should be doing with the Illinois bar in the
9 way of review and testing five, ten years out -- review.
10 MR. FLAXMAN: Are you criticizing our trial skills,
11 your Honor?
12 THE COURT: I mean, there is all sorts of things that
13 ideally should be done but are not done, but they are not done
14 because if the bar does not think that it is important that a
15 lawyer know how to file a lawsuit and so on -- you know, it is
16 a practical world which we live in.
17 So, the value of it I do not put high; but, on the
18 other hand, if it is available, as long as it is not going to
19 delay the conclusion of the case appreciably, I will require
20 that, in good faith now, as a professional, you find out
21 whether you can get a hold of that --
22 MS. PAPUSHKEWYCH: Of course I will.
23 THE COURT: -- of the actual questions, and report at
24 9:00 o'clock tomorrow morning if it is possible to do this.
25 MS. PAPUSHKEWYCH: Could I just --
1201
1 THE COURT: If so, how long it will take and so on.
2 MS. PAPUSHKEWYCH: If I may just ask the Court, what
3 are we now looking at in terms of conclusion of this case?
4 THE COURT: You are asking for 127 out of the -- but I
5 take it you have got to locate the entire amount in order to
6 select out that number, which perhaps is something that could
7 be left to you or your staff --
8 MS. PAPUSHKEWYCH: What are we looking at in terms of
9 --
10 THE COURT: -- not do it in open court.
11 MS. PAPUSHKEWYCH: -- of the ultimate conclusion of
12 the case, though? Tomorrow we are going from 9:00 to 1:00,
13 your Honor?
14 THE COURT: Right.
15 MS. PAPUSHKEWYCH: And Thursday, again?
16 THE COURT: I am not the one to ask when it is going
17 to end.
18 MS. PAPUSHKEWYCH: Well, I thought --
19 THE COURT: If I had a choice --
20 MS. PAPUSHKEWYCH: I thought it was going to end
21 tomorrow; but, obviously, Mr. Flaxman is deciding he is going
22 to build --
23 THE COURT: No, I am saying this is not going to
24 delay.
25 MS. PAPUSHKEWYCH: Well, we are going to end tomorrow,
1202
1 your Honor --
2 THE COURT: All right.
3 MS. PAPUSHKEWYCH: -- the experts, Mr. Klein and
4 Mr. Cadogan.
5 THE COURT: Okay.
6 Then we go to rebuttal.
7 MR. FLAXMAN: I have three short rebuttal witnesses --
8 THE COURT: All right.
9 MR. FLAXMAN: -- who will be here tomorrow.
10 THE COURT: And, then, we may go to surrebuttal.
11 But we have got to -- unless you have been able to
12 work out on the exhibits; otherwise, we are going to have to go
13 through every one of these documents and I am going to have to
14 rule.
15 MS. PAPUSHKEWYCH: We are working out the exhibits,
16 your Honor.
17 MS. GLINK: Your Honor, if I may, I would like
18 Mr. Flaxman to elaborate to a certain degree as to the kind of
19 opinion he is eliciting, to make a determination as to whether
20 we need to call our expert back at this point and find out when
21 he is available to offer an opinion as to the testing process,
22 once again, and why it's constructed the way it is.
23 THE COURT: For his rebuttal witnesses?
24 MS. GLINK: If he intends -- he is intending to, I
25 believe, to ask our subject matter experts if someone got this
1203
1 question wrong, how come we are promoting them to sergeant. I
2 don't think that they -- if they got the question wrong --
3 THE COURT: Without covering that in the review
4 procedure; is that what you are talking about?
5 MS. GLINK: I guess that's right.
6 And I think there has got to be -- this may require
7 some sort of response, and I am trying to figure out what it is
8 that Mr. Flaxman is trying to elicit and whether or not we need
9 to try to make arrangements, once again, to bring an industrial
10 psychologist back to discuss the issues of testing in police
11 departments and why you create and design tests like we have
12 created and designed tests for the one that we gave that's at
13 issue here.
14 MS. PAPUSHKEWYCH: And what is an appropriate
15 comparison when one is looking item by item to the whole exam.
16 I mean, I think your Honor we have covered that ad
17 nauseam in this courtroom, but if Mr. Flaxman is going to take
18 this approach through a subject matter expert and if he is
19 allowed to do that through a subject matter expert who is not a
20 test developer and is going to draw those kind of conclusions,
21 we may need to draw Dr. Barrett back from Newark, again, at
22 some point.
23 MS. GLINK: I just don't --
24 THE COURT: I am tempted to have a quip. Is that a
25 threat or a promise? But I am not taking this lightly. I
1204
1 appreciate the problems that you have.
2 MS. PAPUSHKEWYCH: We would like --
3 THE COURT: It is a question of whether -- I mean, I
4 cannot practice law anymore. I do not --
5 MS. GLINK: Your Honor, these are --
6 THE COURT: I am not permitted to practice law.
7 MS. GLINK: This exhibit --
8 MS. PAPUSHKEWYCH: I'm not sure you would want to in
9 this case.
10 THE COURT: But there are other witnesses. The people
11 that run the review program could testify what that review
12 program is designed to do and whether that really means that
13 they do not care about these questions and the answers --
14 MS. PAPUSHKEWYCH: No, your Honor, the point is --
15 THE COURT: -- whether they are not important.
16 MS. PAPUSHKEWYCH: -- that the question of what one
17 item -- what the invalidation of a particular item means in the
18 context of 150 items is not something that a sergeant of police
19 or lieutenant of police can testify to.
20 MS. GLINK: And that --
21 MS. PAPUSHKEWYCH: And that is the --
22 THE COURT: But that is something you should have
23 covered, already.
24 MS. PAPUSHKEWYCH: We did cover it through
25 Dr. Barrett.
1205
1 THE COURT: Did you, specifically?
2 MS. PAPUSHKEWYCH: Yes, we did.
3 THE COURT: To the effect of one question --
4 MS. PAPUSHKEWYCH: We were talking --
5 THE COURT: -- or what effect it might have on the
6 validity -- content validity of it.
7 MS. GLINK: I believe, your Honor, it was the
8 aggregation of the items, one item or not an item.
9 THE COURT: Well, if you covered it, then you covered
10 it. You do not have to cover it twice.
11 MS. PAPUSHKEWYCH: But I don't know what Mr. Flaxman
12 is going to be allowed to do.
13 THE COURT: I do not have any idea what he is going to
14 do. He is not required to reveal in advance --
15 MS. PAPUSHKEWYCH: Well, your Honor --
16 THE COURT: -- everything that he is going to offer,
17 just as you are not.
18 MS. PAPUSHKEWYCH: He is required, however, to put on
19 a prima facie case, and he has no expert that is talking about
20 what the effect of invalidating these particular items is.
21 There is no expert that has said this.
22 There is no expert that has told you is 20 enough to
23 invalidate this, is 40 enough to invalidate this.
24 THE COURT: But we are off on a separate argument
25 now. He has been trying to invalidate these questions all
1206
1 along.
2 MS. PAPUSHKEWYCH: No, I understand that, your Honor,
3 but --
4 THE COURT: And all that he is seeking in this
5 specific thing is to have an additional argument saying it
6 really is not important because they do not bother to cover it
7 in the review program. And that is what he is seeking to
8 elicit.
9 MS. PAPUSHKEWYCH: It will.
10 THE COURT: That does not necessarily require
11 Barrett.
12 The other one is already in the case.
13 MS. PAPUSHKEWYCH: If what --
14 THE COURT: Because he is attacking the content
15 validity of the test.
16 MS. PAPUSHKEWYCH: That's not my understanding of what
17 he is doing, your Honor, but, if that's what he is doing, your
18 Honor, fine, we can wait until tomorrow and see him do it.
19 THE COURT: Well, I mean, Mr. Flaxman is the guy that
20 is raising all this.
21 Am I correct in what I said?
22 MR. FLAXMAN: You are right on point, Judge.
23 THE COURT: Okay. I ought to quit while I am ahead.
24 MS. PAPUSHKEWYCH: Okay.
25 THE COURT: But if there is some other matters that I
1207
1 could rule on or I need to rule on --
2 MS. GLINK: One would be the --
3 THE COURT: I need to go ahead with this other matter
4 first, and then I will come back to this if you should remain.
5 Otherwise, we will see you at 9:00 o'clock tomorrow.
6 MS. PAPUSHKEWYCH: I think we are --
7 THE COURT: Do not look so discouraged. I think, you
8 know, that already -- if that is already in evidence -- because
9 I am going to be reading the transcript, again, Laura TenBroeck
10 here, my law clerk, we are going to -- we fortunately have a
11 transcript that we are going to be reading. So, we are not
12 going to have forgotten this.
13 I also have, as you can see, we have been writing a
14 lot of notes. So, we are going to review all those notes. So,
15 I am not going to forget what is in evidence. We are going to
16 cover it all.
17 MS. PAPUSHKEWYCH: Well, see --
18 THE COURT: It is not -- primacy and recency are, I
19 think, valid concepts, although I am no expert at that. But
20 when you have a written transcript to read over, the primacy
21 does not get lost with the recency if I can use that.
22 MS. PAPUSHKEWYCH: Your Honor, we are all very tired,
23 and we would like to have some conclusion to this. And I have
24 a police department that constantly asks me when we are about
25 going to get a decision in this case.
1208
1 THE COURT: You are going to get one as soon as the
2 findings of fact --
3 MS. PAPUSHKEWYCH: No, actually --
4 THE COURT: -- and conclusions of law --
5 MS. PAPUSHKEWYCH: -- we are not going to get one
6 until we close this case.
7 Thank you. We will see you tomorrow morning.
8 THE COURT: All right.
9 MR. FLAXMAN: Thank you.
10 THE COURT: If I thought I could set some reasonable
11 time limits in a case like this, I would obviously do that, but
12 I do not think it is possible, since I really do not have
13 background knowledge sufficient to be able to set reasonable
14 time limits.
15 MS. PAPUSHKEWYCH: I understand.
16 THE COURT: With that, we will adjourn this trial for
17 the day.
18 (Whereupon, an adjournment was taken at 4:40 o'clock
19 p.m., until 9:00 o'clock a.m., the following day, March 13,
20 1996.)
21 * * * * *
22 I certify that the foregoing is a true and accurate transcript
of proceedings in the above-entitled matter.
23
24 ________________________________ __________________, 1996.
25 P.M. session reported by:
Joseph A. Rickhoff, CSR, RPR
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