Police fatal shooting case unravels
Alleged cover-up may lead to the overturn of jury’s verdict and potentially expose the city to millions of dollars in liability
By: Jason Meisner, Chicago Tribune: September 27th, 2015
Hours after the fatal shooting of the driver of an Oldsmobile Aurora, two Chicago police officers assigned to one of the city’s most dangerous neighborhoods explained to investigators why they had pulled the car over early that morning and approached with their guns drawn.
“Well, this um, the car we were approaching fit the description of a vehicle that was wanted from a shooting in another district,” Officer Gildardo Sierra said in a recorded statement to investigators from the city agency that investigates police shootings, records show. “It came across the wire from our … police radios.”
Now, nearly five years later, their account of what precipitated the encounter with Darius Pinex at that dark Englewood intersection has fallen apart amid allegations of a cover-up by the police and the city. The controversy threatens to overturn a jury verdict in the officers’ favor, potentially exposing the city to millions of dollars in liability.
According to court records, Sierra and Officer Raoul Mosqueda did not hear the dispatch as they originally claimed because it aired over a different radio zone. The discrepancy raises serious questions whether the officers had the legal justification to stop the car in the first place, let alone open fire on Pinex and passenger Matthew Colyer.
But the missteps didn’t stop there. In a stunning admission, one of the city’s top attorneys recently acknowledged under oath he violated court rules by failing to turn over crucial evidence to lawyers for Pinex’s family as part of their wrongful-death lawsuit, even though he had learned of its existence the week before trial.
The evidence was a recording of the dispatch that actually went out over the officers’ Zone 6 radios that night, a call that talked about a different Oldsmobile Aurora that didn’t match Pinex’s car and wasn’t wanted for a shooting.
Lawyers for Pinex’s family and Colyer have asked a federal judge to sanction Senior Corporation Counsel Jordan Marsh for his alleged misconduct and either order a new trial or find in their favor without even bothering with a trial.
“The (officers) had no reason to pull Darius Pinex and Matthew Colyer over, no reason to approach with their guns out and fingers on the trigger, and no reason to shoot,” attorney Steven Greenberg, who represents Pinex’s mother, wrote earlier this month in a court filing. “Their actions that night were an extraordinary abuse of power, and newly produced recordings and documents show their conduct in the aftermath was equally bad.”
The city’s Law Department issued a statement Friday night saying it takes the professionalism of its attorneys seriously and is preparing a detailed response to the allegations for the judge.
“We are cooperating fully with the court as it reviews this matter, and we await its findings before determining if further action is required,” it said.
Marsh’s attorney, Thomas Leinenweber, told the Tribune that Marsh had never been disciplined in 22 years as a lawyer and looked forward to being vindicated.
“He has an impeccable record and is very well thought of,” Leinenweber said of Marsh, who has worked for the city since 1997. “We’re convinced he didn’t do anything untoward or unethical whatsoever.”
‘You ready for my number?’
The case is the latest black mark for Sierra, who was involved in two other on-duty shootings within months of Pinex’s killing. In one shooting an unarmed man died after Sierra, mistaking a cellphone for a gun, fired 16 shots at him.
After the details of that shooting were revealed in a 2011 Tribune report, Sierra was stripped of his police powers and criminal investigations were launched by the Cook County state’s attorney’s office and federal authorities, but no charges have ever been filed.
For years, Mosqueda and Sierra stuck to their story that they curbed Pinex’s car on that bitterly cold night in January 2011 because it matched the description heard over the radio of a dark green Aurora with rimmed wheels and a temporary license plate that was wanted in a shooting.
Both officers repeatedly claimed that the dispatch led them to conduct a “high-risk” traffic stop on Pinex’s vehicle, blinding the driver with the spotlight from their marked squad car before eventually boxing the car in from the front and exiting with guns drawn.
The stop turned deadly when Pinex, the officers alleged, refused orders and gunned his car in reverse, throwing Colyer from the car and nearly running over Mosqueda. Sierra unloaded at least eight shots at the vehicle as it backed into a light pole. Mosqueda then fired multiple times from the passenger side, fatally striking Pinex in the head, court records show. A loaded pistol was later found underneath the driver’s seat.
But as investigators combed the South Side intersection for evidence, there was confusion about the dispatch the officers said they’d heard. About an hour after the shooting, their supervisor at the scene, Sgt. Jeffrey Siwek, called an emergency dispatcher over his police radio to ask why the Aurora had been wanted, court records show.
That’s when a peculiar thing happened. Against protocol, the two moved the conversation off police public frequencies that are monitored and recorded.
“Do you want, um, do you want us to just call you? Would that be better?” asked the dispatcher, according to the records.
“Yeah, you ready for my number?” Siwek said.
With both on their private cellphones, the dispatcher and sergeant held two unrecorded conversations, according to court records. In court-ordered depositions earlier this year, both Siwek and the dispatcher, Mike Tracy, said they couldn’t remember what they spoke about that night.
Both declined comment when reached Friday by a Tribune reporter.
Pinex’s lawyers have alleged the cover-up likely began with those phone calls. Realizing that they needed a reason for the traffic stop, the dispatcher gave Siwek details about an earlier call from the South Chicago District involving an Aurora wanted in a shooting, Pinex’s attorneys alleged. The crucial information was then allegedly fed to Mosqueda and eventually Sierra, according to the plaintiffs’ motion for a new trial.
Hours later, in his statement to the Independent Police Review Authority, Mosqueda said he believed he’d heard the details about the Aurora in an “all call” message sent to police units citywide, court records show. Sierra backed that up, saying he and his partner had both agreed it “looks like the vehicle, uh, that was wanted from the shooting.”
But the problem was that call on the wanted Aurora had gone out on a different radio zone than Englewood.
Four years later, when city attorney Thomas Aumann stepped in front of the jury to deliver his opening statement in U.S. District Judge Edmond Chang’s courtroom in February, the officers’ account hadn’t changed. Aumann told the panel in no uncertain terms that the officers had heard a message telling them to be on the lookout for the dangerous vehicle and had every right to be on high alert when they pulled Pinex over.
“Now, both officers had their service weapons out as they approached the car,” a transcript quoted Aumann as telling jurors. “You will hear they did this for officer safety. Again, based on that earlier call, they had reason to believe that there might be a gun in the Aurora.”
Both Mosqueda and Sierra took the witness stand and repeated the assertions about hearing the dispatch over the police radio.
Sierra testified that after they pulled over the Aurora he became “highly suspicious” because Pinex refused his commands to get out of the car, according to the transcript. Then, as Mosqueda tried to get Colyer out of the passenger seat, Pinex suddenly “gunned it in reverse,” Sierra said. Both officers opened fire.
It wasn’t until midway through the trial that the city’s position on the dispatch recording began to unravel. After a witness with the city’s Office of Emergency Management and Communications wavered on the witness stand about how the search for dispatch recordings was conducted, the judge called a break so plaintiffs’ attorneys could question her outside the jury’s presence.
Records show the witness revealed that evidence might exist of a dispatch call about a third Aurora from the same zone the officers were working that night. A colleague, Jill Maderak, then confirmed that she had provided a copy of the recordings to the area detective sergeant working the case back in 2011.
When court resumed, Marsh tried to downplay the development, saying he’d just learned of the possible existence of the recording during the lunch hour and immediately called the sergeant for information.
“I just spoke to the sergeant now,” Marsh told the judge. “He is going to look for it.”
Later, Marsh backed off that assertion, saying he’d actually reached out to the sergeant two days earlier but hadn’t gotten a call back. When the judge pressed Marsh on why he hadn’t disclosed the existence of the recording as soon as he had learned of it, the lawyer backpedaled more, saying it hadn’t crossed his mind that it would be something that might be helpful to the plaintiffs.
“My thought process was, I want to see what is on that (recording),” he said. “You know in retrospect I think I should have, but it just … I wanted to talk to the sergeant and to see whether it was even relevant.”
Finally, after the judge dismissed the jury for the day while he dealt with the controversy, Marsh issued an apology, but he continued to insist that he had learned about the recording only “a couple days before.”
“I just wanted — it bothers me profoundly, and I don’t do that,” Marsh said. “So I just wanted to let the court know that is not the way I operate.”
‘My son’s gone for nothing?’
When trial resumed the next day, the long-missing recording was played for jurors. Maderak testified that it had been preserved on CD and sent to the area headquarters as part of the original investigation in 2011.
Before her testimony, Maderak had sent a text message to her OEMC colleague expressing her exasperation over Marsh’s tactics.
“He better be prepared to explain why he didn’t get that audio when I told him to,” Maderak texted, according to court records. “This case is just (expletive) ridiculous. I’m mad.”
Meanwhile, Mosqueda was forced to retake the witness stand and try to explain the discrepancy between what he said he had heard and what was on the newly revealed recording.
Saying he had testified “to the best of my ability of what I remembered,” Mosqueda contended he was justified in his belief that the car was the same one that had been pursued by police earlier that night.
“A vehicle pursuit can be for a shooting and also a high-risk traffic pursuit,” Mosqueda testified. “So what I believed was the vehicle was involved in something of that nature.”
In a testy exchange, Robert Johnson, an attorney for Colyer, all but accused Mosqueda of lying under oath.
“You needed that car to be involved in a shooting to justify shooting it full of holes, didn’t you?” Johnson asked at one point as Mosqueda’s attorney shouted an objection.
Attorneys for Pinex’s family had sought up to $10 million in damages, but after seven hours of deliberation, the jury on March 4 sided with the officers and awarded nothing to either Pinex’s family or Colyer. In the courthouse lobby, Pinex’s mother, Gloria, decried the jury’s decision, shouting that the evidence had shown the officers to be liars.
“How can you side with somebody who just lied in your face?” she said. “They’ve been lying to me for four whole years, knowing that tape existed and they never gave it to me. But they let them walk, and my son’s gone for nothing?”
Pinex’s mother wasn’t the only one surprised. The day after the verdict, Maderak sent another text, this time to Aumann, the city attorney.
“Congratulations, I heard you guys won the case,” Maderak wrote, according to court records. “You guys were really lucky on this one.”
Admitted violating rules of discovery
The case, however, was far from over. The bombshell developments prompted Judge Chang to give the go-ahead for a full investigation into how the rules breach occurred, including forcing Marsh and his trial team, as well as the cops and police dispatchers involved in the case, to sit for sworn depositions.
What the probe uncovered was that Marsh had repeatedly deceived both Chang and plaintiffs’ attorneys at trial about when he had learned of the Zone 6 recording. In fact, he was told about it while preparing for trial the week before the jury was picked and told no one, not even other members of his trial team, records show.
The day he learned from Maderak that the Zone 6 recording existed, Marsh argued in a pretrial motion that the South Chicago District call should be played for the jury because it was the most likely dispatch the officers heard, court records show. The judge ruled in Marsh’s favor, a significant blow to the plaintiffs’ case.
In his July deposition, Marsh admitted he violated the rules of discovery but said he had never “intentionally misled the court” because it’s “not who I am,” records show.
“I knew it was a very significant deal, and I knew that I had made a big mistake, and it’s something that would reflect badly on my office, on my colleagues, make their lives more difficult and let them down, certainly my trial partners, my clients,” Marsh said, according to a transcript of his testimony. “It was a very big deal, and it was a big enough deal that I felt it was important enough to find out whether or not my job was in jeopardy.”
At the time of his testimony, Marsh said, no disciplinary action had been taken against him.