Judge tosses verdict against cop in alleged road-rage incident, cites trial misconduct by lawyer
A federal judge in Chicago is citing attorney misconduct in tossing a $260,000 jury verdict on behalf of a woman who claimed she was injured by an off-duty Chicago police officer in a road-rage incident.
U.S. District Judge Sara Ellis said plaintiffs lawyer Dana Kurtz had shown a “pervasive and severe” pattern of misconduct at trial, the Chicago Tribune reports. Ellis said Kurtz had asked questions to elicit banned testimony, improperly coached witnesses and apparently made misrepresentations to the court.
“Rather than abide by rules with which she disagreed and take up those rulings on appeal as necessary,” Ellis wrote, “Kurtz chose simply to ignore them whenever convenient to her case.”
Ellis’ decision (PDF) overturned the excessive-force verdict for Nicole Tomaskovic, who alleged off-duty officer William Szura had slammed her against her car and a concrete barrier during the July 2007 incident, rupturing two discs in her back. Ellis did not award attorney fees to Szura and the city of Chicago, however, because the claims of Tomaskovic and two other plaintiffs were not frivolous.
Jurors did not award any damages to the other two plaintiffs who had alleged Szura forced them off the road and drew a gun. One said Szura struck her in the face and the other said Szura knocked her down. Tomaskovic had been following in another car, and ran to help the two women.
Szura had alleged that one of the women had pushed him and then all three attacked him, according to prior coverage by the Chicago Tribune. The incident had occurred when the women were on their way home from a gay pride parade in which Szura had worked crowd control. He alleged the two women in the car behind him were tailgating and one of them threw something at his vehicle. At the December trial, Szura testified that he braked and then pulled over to calm down.
The three women were charged with criminal battery, but were acquitted at a criminal trial in 2008, according to the prior Tribune story.
Ellis’ Sept. 29 opinion provided several examples of Kurtz’s alleged wrongdoing. At one point, Kurtz asked a police officer on the stand whether police are supposed to document instances when they draw their guns. The question “was a clear attempt” to elicit barred testimony about the internal police investigation of the incident, Ellis said.
Kurtz then asked the officer whether the officer was upset by the judge’s decision in the criminal case. That question sought to elicit banned testimony about a criminal court judge’s findings about the credibility of Szura and other officers, Ellis said. Kurtz also asked the officer about police rules regarding investigation of certain situations and forms that need to be completed in certain situations. Those questions were also designed to elicit testimony about the internal investigation, according to Ellis.
Ellis also said Kurtz gave an excuse that was “simply not credible” when she was reminded she should not ask questions about 911 calls because the court had not yet ruled on their admissibility. Kurtz had offered this excuse: “I’m sorry, Your Honor. I completely—no excuse, but I forgot you were going to review the 911, and I apologize. ” Yet the issue had been discussed less than two hours before, Ellis said.
Kurtz also asked one of the plaintiffs whether anyone at the scene was given a breath test for alcohol, even though Ellis had barred evidence about failure to perform such a test on Szura, Ellis said.
At another point Kurtz asked a police officer on the stand, “Would you agree that Officer Szura as an involved party should have been subject to the same type of examination as the girls?” Ellis said the question was another attempt to garner banned testimony, and Kurtz moved on after an objection, “apparently satisfied that she had sufficiently made her point to the jury that there was some sort of cover-up or conspiracy.”
Two of the plaintiffs and the plaintiffs’ expert also made statements that violated rulings on banned evidence, Ellis said. Tomaskovic twice testified about banned subjects, and when the judge asked if Kurtz had instructed her about banned topics, Tomaskovic said her lawyer had not given any such instructions. After court adjourned, Tomaskovic re-entered the courtroom, said she had not understood the question, and Kurtz had indeed told her before trial that there were certain things she couldn’t talk about.
“The court finds it ludicrous that after answering clear direct questions in the negative,” Ellis wrote, “Tomaskovic independently remembered that she did in fact receive preparation from her attorney and independently decided to go back into the courtroom to inform the court of her error.”
Ellis also said the Tribune had published an article about the case after the first day of trial that included audio files and 911 transcripts that had not been entered into evidence, as well as still shots from a day-in-the-life video showing Tomaskovic’s physical condition around the time of her back surgery. Kurtz told the judge she gave the reporter the video in 2013 but she did not give him the 911 materials. Ellis found that “the most likely scenario is that Kurtz or someone working at her direction provided the materials” to the Tribune.
“While it is possible that each individual incident, standing alone, should rightly be given the benefit of the doubt and would not merit a severe sanction,” Ellis wrote, “the continuous, repetitive nature of the misconduct, the fact that plaintiffs’ counsel did not improve her conduct in the face of numerous warnings, and plaintiffs’ counsel’s history of censure support the court’s finding that her conduct at trial was willful, egregious, and not entitled to a presumption of unintentionality.”
Kurtz had been previously sanctioned by another federal judge for “repeated attempts to introduce inadmissible and prejudicial evidence before the jury,” Ellis said. The judge in the prior case had granted a new trial.
The plaintiffs are represented by a new attorney.
Kurtz tells the ABA Journal in a voice mail message that the opinion is “very unfortunate.”
“The three women deserve justice,” Kurtz said. “I work very hard to do a good job representing my clients.”
Ellis had formerly worked as a lawyer for the city of Chicago defending police officers accused of wrongdoing, according to the Tribune.
