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Judge rejects challenge to lawyer-juror

This article was originally featured in the October 1, 2012 edition of the Chicago Daily Law Bulletin. Please click here to view the original Chicago Daily Law Bulletin article.

A juror’s failure to volunteer details about his work as an attorney did not deny the plaintiff in a civil rights case a fair trial, a federal judge has held.

 

In an opinion Friday, U.S. District Judge Rebecca R. Pallmeyer declined to grant a new trial in John Preston Jr.’s lawsuit against Chicago police officer Daniel Warzynski and the city.

A jury found in favor of the defendants on Preston’s claim that Warzynski used excessive force when arresting him.

In seeking a new trial, Preston contended that he was denied due process when the jury foreman, attorney Bryan P. Diemer of the International Union of Operating Engineers, Local 150, AFL-CIO, failed to disclose during voir dire that several years earlier he had twice represented police officers in claims against the city.

Citing McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548 (1984), Pallmeyer said a litigant in Preston’s situation must prove two things when seeking a new trial.

The litigant must show that a juror failed to answer a material question honestly and that a correct answer would have let the litigant challenge the juror for cause, Pallmeyer said.

She said Preston had not made either showing. Pallmeyer said Diemer disclosed during jury selection that a brother-in-law was a police officer.

Diemer also disclosed that his wife had been fired from a position with the Fraternal Order of Police (FOP) and that she filed and settled a suit accusing that entity of pregnancy discrimination, Pallmeyer said.

And she said Diemer answered “yes” when asked if he litigated regularly.

Pallmeyer rejected the argument that Diemer’s failure to add that he had represented police officers in the past amounted to intentional deception.

Preston’s attorneys should have taken advantage of the opportunity to ask Diemer about his litigation experience and his prior contacts with police, Pallmeyer said.

“Plaintiff cannot now challenge the composition of the jury when he chose not to interrogate further a potential juror who admitted having significant relations with police officers and police organizations,” she wrote.

Pallmeyer also said Diemer could not have been successfully challenged for cause even if his failure to disclose his representation of the police officers constituted a failure to honestly answer a material question.

“Plaintiff has not proffered any evidence that Diemer’s ability to faithfully fulfill his juror duties was compromised by his prior representation of police officers,” Pallmeyer wrote. John Preston Jr. v. Chicago Police Officer Daniel Warzynski, et al. No. 10 C 136.

The lead attorney for Preston is Brendan Shiller of Shiller, Preyar Law Offices LLC. The lead attorney for the city is Richard T. Sikes Jr. of Daley, Mohan, Groble P.C. Attorney Brian T. George of Daley, Mohan represents Warzynski.

Shiller, who said he seldom seeks a new trial when a client loses at trial, said Preston had not yet decided whether to appeal Pallmeyer’s ruling.

Spokesman Roderick Drew said the city was pleased with the opinion.

View the original article from the Chicago Daily Law Bulletin (PDF)

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