Backpedaled more
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."
"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." - Lawyer for Darius Pinex's family in court documents
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.
