Joseph Birkett June 10, 2009 - Chicago Tribune · 2010. 12. 10. · Joseph Birkett June 10, 2009...

Joseph Birkett June 10, 2009

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

MARCUS LYONS, ) ) Plaintiff, ) ) -vs- ) No. 08 C 5063 ) VILLAGE OF WOODRIDGE, ) ) Defendant. )

Deposition of JOSEPH BIRKETT, taken before DANA

LARIMER, C.S.R., R.P.R., and Notary Public, pursuant

to the Federal Rules of Civil Procedure for the

United States District Courts pertaining to the

taking of depositions, at 503 North County Farm Road,

Wheaton, Illinois, commencing at 10:40 a.m., on June

10, 2009.



1 There were present at the taking of this

2 deposition the following counsel:

3

4 LOEVY & LOEVY by

5 ARTHUR LOEVY, 312 North May

6 Chicago, Illinois 60607 (312) 243-5900

7 on behalf of the Plaintiff;

8

9 DeANO & SCARRY by

10 MR. HOWARD P. LEVINE, 2100 Manchester Rd., Suite A-1-1

11 Wheaton, Illinois 60187 (630) 690-2800

12 on behalf of the Defendant;

13

14 OFFICE OF THE STATE'S ATTORNEY JOSEPH E.

15 BIRKETT by MR. THOMAS F. DOWNING,

16 503 County Farm Rd. Wheaton, Illinois 60187

17 (630) 407-8221

18 on behalf of Joseph Birkett.

19

20

21

22

23

24



1 DEPOSITION OF

2 JOSEPH BIRKETT

3

4

5 EXAMINATION BY PAGE

6 by Mr. Loevy 4

7 by Mr. Levine 25

8 by Mr. Loevy 48

9

10

11 EXHIBITS

12

13 Exhibit 1 5

14 Exhibit 2 21

15 Exhibit 3 22

16

17

18

19

20

21

22

23

24



1 JOSEPH BIRKETT,

2 called as a witness herein, having been first duly

3 sworn, was examined upon oral interrogatories and

4 testified as follows:

5 EXAMINATION

6 by Mr Loevy:

7 BY MR. LOEVY:

8 Q What is your name?

9 A Joseph Birkett.

10 Q What is your present position?

11 A I am the state's attorney for DuPage County.

12 Q Is that an elected position?

13 A Yes, it is.

14 Q When were you first elected to that position?

15 A I was first appointed in October of 1996,

16 then elected in November of 1996.

17 Q Prior to the time that you were appointed as

18 the state's attorney for the County of DuPage, can

19 you briefly indicate the service that you had with

20 the state's attorney office in DuPage?

21 A I was hired in October of 1981. Sworn into

22 the practice of law in November of '81, so I began my

23 full-time career as assistant state's attorney in

24 November of 1981. In 1985 I was promoted to chief of



1 major crimes.

2 After that in 1986 I was promoted to deputy

3 chief of the founding division of the office. In

4 1991 I was appointed to be the chief of criminal

5 division of the state's attorney office. Then I

6 remained in that position until I was elected in

7 1996. And have been the state's attorney since that

8 time.

9 Q Thank you. Am I correct in saying there is a

10 time that you had some responsibility for the

11 prosecution of a man named Marcus Lyons?

12 A Yes.

13 Q Am I correct in saying that after you became

14 state's attorney you also had some responsibility

15 with respect to certain matters concerning his case?

16 I'll explain what I mean.

17 This has been marked as Exhibit 1.

18 (Exhibit 1 was marked for identification.)

19 BY MR. LOEVY:

20 Q I'll ask you to take a look at it, please.

21 Is that your signature?

22 A Yes, it is.

23 Q At the bottom of Exhibit 1?

24 A Yes.



1 Q This is something -- what is this document?

2 Can you explain it to me?

3 A If I can just read it.

4 Q Sure, take your time.

5 A This is an agreement to not oppose the

6 defendant's petition for executive clemency. And at

7 the time that this was presented, I believe it was by

8 the defendant's counsel at the time who handled his

9 postconviction request for DNA testing.

10 I agreed to not oppose the defendant's

11 request for executive clemency based upon the DNA

12 result, but also under the misperception that the

13 defendant had no other intervening criminal history,

14 which I don't know if that is documented. But that

15 was my understanding at the time that I signed this.

16 Q Do you now have an understanding that there

17 was an intervening criminal history?

18 A There was. I haven't been, I haven't read

19 the record, but I have been informed there was some

20 intervening criminal history, which I was not aware

21 of at the time that I signed this, unfortunately.

22 I still have not read the actual report of

23 that. Before signing this document I was under the

24 impression there was no intervening criminal history.



1 Q What led you to that impression?

2 A I think it was just simply a verbal request,

3 is there anything else on his record, is there

4 anything else intervening. My impression was there

5 was nothing else.

6 Q Who did you make that request of to determine

7 whether there was or was not an intervening criminal

8 history?

9 A I didn't do any history myself. It was just,

10 I don't recall who it was, but I was just informed

11 there was no intervening circumstances. He was

12 living, he had been employed and had been otherwise

13 leading a productive life. That was my

14 understanding.

15 Q Other than the fact of the intervening

16 criminal history, did you set forth in this letter

17 your entire position with respect to Marcus Lyons'

18 petition for executive clemency?

19 A I set forth in this essentially what our

20 findings were despite the evidence that was presented

21 at his trial. The DNA evidence disputed that

22 evidence. And it did not match the profile of the

23 petition. And essentially that is what we concluded,

24 that the evidence could not withstand scrutiny.



1 If we were to ever re-try him again, which

2 there wouldn't be, he already served the sentence.

3 In the event there was some kind of contested matter

4 which led to the granting of a new trial, we could

5 not withstand our burden. The defendant's DNA did

6 not match and we had excluded the other possible

7 donor from our interviews with the victim. We had

8 excluded the other possible donor as well, so that

9 was it.

10 Q Calling your attention to the third

11 paragraph, the first sentence, is it true that the

12 new DNA evidence did not match the profile of the

13 petition and as a result the people promptly agreed

14 to vacate the conviction and dismiss the case against

15 Mr. Lyons?

16 A Yes.

17 Q You did so promptly upon learning that there

18 was no DNA match, is that correct?

19 A No. When we found out there was no DNA

20 match, we contacted the victim to determine whether

21 or not there was another possible source of the

22 semen. As you know the mere fact that someone else's

23 DNA is present does not mean that he is not the

24 rapist. What it means is that somebody else is the



1 source of that semen stain or little, small, but not

2 visible to the eye, the DNA on the bra had to be

3 explained.

4 If Marcus Lyons is the rapist, the DNA has

5 to be explained somehow. The explanation may still

6 be out there, but based upon our investigation it was

7 not the source that we thought it might be, which was

8 the boyfriend or whoever Becky was seeing at the

9 time.

10 So based upon that we would not be able to

11 withstand or uphold our burden of proof beyond a

12 reasonable doubt. That's it.

13 Q Am I correct in saying there was an

14 investigation that was conducted to compare the DNA

15 of Ms. Auten's boyfriend at the time --

16 A Yes.

17 Q -- with the DNA sample?

18 A Correct. Based upon those two things, it's

19 not Marcus Lyons, it's not this other possible donor,

20 there is reasonable double of his guilt. And our

21 obligation is to dismiss the case.

22 Q Why would that lead you to the conclusion

23 that there would be a reasonable doubt as to

24 Mr. Lyons' guilt?



1 A It's, I have been practicing law for almost

2 30 years. That's a reasonable doubt. That is the

3 type of evidence that creates a reasonable doubt.

4 It's forensic. Unless there is some problem with the

5 chain of evidence or some contamination, which I saw

6 no evidence of, the contributor of this semen that is

7 not Marcus Lyon on an article of clothing in the

8 immediate vicinity. She was not wearing it at the

9 time of the rape.

10 He had disrobed her. Whoever the offender

11 was, whether it was Marcus Lyons or whoever the

12 rapist was, took her panties off, forced her to

13 remove her bra as well. They were laying in the

14 area. And the semen stain ends up on that bra.

15 That's a reasonable doubt in my opinion. My opinion

16 counts. I'm the state's attorney.

17 Q Thank you for that explanation. Was that the

18 only reason that you submitted the document, which

19 have been marked Exhibit 1? By the only reason, the

20 DNA issues --

21 A Yes.

22 Q -- that you just discussed?

23 A That, you mean this document, that plus the

24 understanding there was no, he hadn't raped anyone



1 else or no intervening criminal history. I am

2 talking about substantial criminal history. I am not

3 even sure today what it was. I think there was an

4 assault or battery or something out there that I was

5 not aware of at the time.

6 But those two things in combination, I would

7 not oppose clemency and I would urge the governor to

8 sign it.

9 Q Am I correct in saying that you are not

10 specifically, at least at this time, aware of a major

11 event or crime that Mr. Lyons had --

12 A I have only been told. It's not my job to

13 research his criminal history.

14 Q Sure.

15 A But I have been told that he had an

16 intervening event that I was not aware of at the

17 time. Somebody with a substantial criminal history

18 who has been tried, convicted and then at some point

19 in time there is a doubt as to his or her guilt

20 raised, does not mean that person is innocent, which

21 means that I would not necessarily agree to clemency.

22 Because the possibility does exist, maybe he

23 did commit this offense. Even though it's been wiped

24 out, he is presumed innocent, it could be wiped out



1 from his criminal history, should he get clemency.

2 Those are two different questions.

3 So to this day I haven't read the reports or

4 I don't know exactly what that intervening criminal

5 history is. I am just telling you what my mind set

6 was when I signed this.

7 Q Sure. You did ask the board and the governor

8 to grant clemency --

9 A Yes.

10 Q -- to Mr. Lyons?

11 A I agreed to not oppose it. I did not, I

12 basically supported his request.

13 Q Calling your attention to the last sentence,

14 it says the people of the State of Illinois ask the

15 board and the governor to grant clemency.

16 A Right.

17 Q That was your position?

18 A Right.

19 Q Am I correct?

20 A Yes.

21 Q Do you have an independent memory at all of

22 the trial itself of Mr. Lyons?

23 A Yes.

24 Q Have you reviewed any documents in



1 preparation for this deposition or in connection with

2 the lawsuit that has been filed?

3 A I looked at copies of my notes, my trial

4 notes.

5 Q I see.

6 A Back at the time that Marcus through his

7 attorneys finally filed the postconviction motion for

8 DNA testing, I did review the file. I ordered it.

9 Alex McGinpsey, we have a system that is set up where

10 if there is a request for postconviction DNA testing,

11 we order the file. Review the file. And I did look

12 at the file back then.

13 I reviewed it briefly when we got the

14 results. I was comfortable with the fact that we had

15 excluded other possible source of donor. At that

16 point in time I did review portions of the file, but

17 not the entire file.

18 Q Calling your attention to the time of the

19 trial itself. Am I correct in saying there were

20 certain items that were sent to a laboratory to check

21 on for blood and DNA samples, is that correct?

22 A There was a, I think a routine submission of

23 the panties. I don't know that, I would have to look

24 at the lab results, but there were, my recollection



1 was there was no semen found on the panties. That

2 was explained by the fact that the victim was not

3 wearing the panties at the time of the assault, at

4 the time of the rape.

5 In addition to that after the rape the items

6 were collected, so that was not a surprise.

7 Q The panties that were collected, were they

8 collected at the scene of the rape?

9 A Yes, that's my understanding.

10 Q Was it your understanding that there was or

11 there was not evidence of semen that was collected at

12 the scene of the rape?

13 A I don't believe there was any. My

14 recollection is that Becky, he, the rapist ejaculated

15 on her and wiped off. Walked into the kitchen.

16 Maybe it was, maybe he wiped off after he went to the

17 kitchen. I forget the exact scenario. He wiped off

18 and then Becky showered and was pretty, my

19 recollection is that she washed everything off.

20 So there was no semen collected. There was

21 none.

22 Q Am I correct in saying that you were not told

23 by any of the police officers who investigated the

24 case that there was evidence of semen on the side of



1 the toilet?

2 A I don't recollect whether I was told that.

3 Q If you were told that there was semen on the

4 side of the toilet, is that the kind of thing that

5 you would have requested a laboratory analysis of?

6 A Well, I was not, as you know from the history

7 of the case, I was not the screening assistant. But

8 obviously if I was told that there was semen on the

9 side of the toilet, which I haven't been told, I have

10 no recollection of that.

11 But obviously if I got a case, for example,

12 where there was a police report or an evidence

13 technician writes a report stating that he noticed a

14 stain or an item or something on the side of the

15 toilet, we know the rapist, if we knew that the

16 rapist was in that room, obviously you would make

17 such a request if it had not already been done by the

18 police.

19 Q Even if the rapist had not been in the room,

20 but had been in the apartment, would you have made

21 such a request?

22 A No, if the rapist is not, if he cannot be the

23 contributor, why would you make that request? There

24 are, a crime scene is a crime scene. It does not



1 include every room. Going into another area where

2 you know that offender has not been would serve no

3 useful purposes. It would only, you know, the

4 possibility of all kind of issues.

5 Q When you interview Ms. Auten, were you

6 certain that she knew every room that the rapist was

7 in?

8 A I didn't interview.

9 Q When you reviewed your notes of Ms. Auten's

10 recollection of the rape itself, did you believe that

11 she was aware of every room that the rapist was in

12 inside of her apartment?

13 A I can't recall. I mean my recollection is

14 that she gave a good account of what had taken place

15 and a good recollection of what had taken place. My

16 opinion was that the police were thorough in terms of

17 the gathering of evidence, et cetera.

18 Q What led you to that conclusion?

19 A Well, first of all, I have great confidence

20 in the people who were working on the case before I

21 got involved in it. I tried the case essentially. I

22 did not have the case from the complaint stage

23 through the trial. I joined the case when it was

24 scheduled for trial, which is kind of unusual.



1 Usually back at that time the assigned

2 assistants would handle the case from the point of

3 assignment, especially if you were in that court or

4 you were in the unit handling it. It's vertical

5 prosecution all the way through.

6 So I came on to try the case. I didn't have

7 it initially. I had great confidence in the

8 assistant state's attorneys who worked the file up

9 and got the case ready and for the screening

10 assistants who worked with the Woodridge Police

11 Department are excellent, outstanding attorneys.

12 Q Had you ever worked with the Woodridge Police

13 Department prior to that?

14 A I had.

15 Q On felony matters?

16 A Yes.

17 Q Did you have confidence in the Woodridge

18 Police Department in the same manner as you just

19 described your confidence in the attorneys?

20 A To this day every police department, it all

21 depends on the personnel assigned. At that time I

22 knew the detectives that worked the case. I had

23 great confidence in them. So the answer would be

24 yes, I had great confidence in them. They were



1 outstanding, honest, very good police officers.

2 Q That would be Detective Grady and --

3 A Detective Grady is one of them.

4 Q Janus was the other one.

5 A I had a great relationship with Janus. We

6 had, as with any police department, there are, you

7 know, there are always, and it should be as a result

8 of dialogue, there should be points of disagreement

9 between a prosecutor and police officer. That's

10 always the case, but not with regard to the work.

11 They were outstanding.

12 Q Do you recall how long Grady was on the job

13 at the time of the Marcus Lyons trial?

14 A He was a seasoned police officer. He had

15 been a patrolman and then detective. He was a

16 detective at the time, I believe, is my recollection.

17 Q As you sit here now you don't recall how long

18 he was a detective?

19 A I don't know.

20 Q Or how long he was a police officer?

21 A I don't know.

22 Q Why was it that the usual vertical system of

23 trying a case was not the case in Mr. Lyons' case?

24 A It was with regard to Katherine Creswell.



1 She was the assigned assistant and handled the case

2 all the way through. I can't recall. I tried a lot

3 of cases. I still try cases today. I can't recall

4 how I ended up. It may have been that I knew the

5 case was coming up for trial and I agreed to try it

6 with her, which happens.

7 Traditional rule is that you don't try a

8 case alone. There is one assistant assigned to the

9 case. You don't try cases alone. You always have a

10 second chair. That was a rule that was put in place

11 when State's Attorney Jim Ryan came on board. I

12 followed that, but when I was, I would have been

13 Katherine's supervisor at the time. At our regular

14 meetings we would talk about upcoming cases.

15 And to coin a phrase, I would cherry-pick

16 cases and try cases, especially a challenging case.

17 But I tried a lot of cases back then. So I don't

18 recall if it was a change in assignment or if it was

19 something that I wanted to do because I wanted to try

20 a case with Katherine, who was an up and coming

21 outstanding prosecutor. You want to work with them

22 and train them and try cases with them.

23 So I did that with a lot of assistants,

24 including many of the judges on the fourth floor now.



1 That's how I ended up on the case.

2 Q Was there anything about the case itself that

3 made you want to, that encouraged you to want to try

4 it?

5 A Obviously the protection of the public and

6 holding offenders accountable is the primary

7 responsibility of this office, so that is part of it.

8 And also trying a case with Katherine, so there was a

9 mix. But I tried high profile cases, rapes and

10 murders and cases like that, child abuse cases.

11 I still do that to this day. Try cases with

12 the young assistants who are coming up or work on

13 cases with them. That's the way that you train and

14 make great lawyers.

15 Q Do you recall in the Lyons' trial that Ms.

16 Auten had identified Marcus Lyons from a live

17 line-up?

18 A Yes.

19 Q You also recall that she had identified

20 Mr. Lyons from a photo line-up?

21 A Yes.

22 Q Do you recall the photograph line-up preceded

23 the live line-up?

24 A I think so, yes.



1 Q Do you recall that at the trial that you

2 asked Ms. Auten if she had identified Mr. Lyons from

3 the photo line-up?

4 A I don't believe that I put Rebecca on. I

5 think that Katherine Creswell did the examination.

6 Q Do you recall what the photo line-up looked

7 like? And by looked like, I mean what form it was

8 in. Not the photographs themselves, what the binder

9 was or what did it look like?

10 A I don't have an independent recollection of

11 that. But I do believe there was a photo line-up

12 introduced at the trial.

13 Q Do you recall anything about that exhibit at

14 all?

15 A Not really.

16 Q Thank you. This has been marked as

17 Exhibit 2.


19 BY MR. LOEVY:

20 Q Take a moment and read it. I think when you

21 and I had talked on the phone, Mr. Birkett, I had

22 called this press release to your attention.

23 A Okay.

24 Q You have had a chance to --



1 A Yes.

2 Q -- review it?

3 A Right.

4 Q Would I be correct in saying that you did not

5 prepare this yourself, but someone --

6 A No, I prepared it. I directed that that be

7 prepared. And I --

8 Q I'm sorry.

9 A I actually did, which I have a press person,

10 but in this particular case I directed him to prepare

11 this. And I personally drafted the quote which is at

12 the end.

13 Q You reviewed it before the press release was

14 sent out?

15 A Yes, I did.

16 Q Everything accurate in this press release?

17 A Yes, to my recollection it is, yes.

18 Q Let's mark this as Exhibit 3, please.


20 BY MR. LOEVY:

21 Q It's been marked. It's hard to read. I

22 apologize for that. Is this -- excuse me, is this,

23 is it just my copy that is hard to read?

24 MR. DOWNING: I made my copy off the original



1 exhibit.

2 MR. LOEVY: Is the original any better?

3 THE WITNESS: No, it's okay. I'll give you this

4 in a second.

5 MR. LOEVY: It looks like the original is a

6 little bit more legible than the copy.

7 THE WITNESS: There is a portion of this missing

8 that is cut off.

9 BY MR. LOEVY:

10 Q At the bottom?

11 A At the bottom and left.

12 Q Which page?

13 A The second page.

14 Q Thank you. I assure you it was not done

15 deliberately. Just this is what we have.

16 MR. DOWNING: Do you know when this was

17 published?

18 THE WITNESS: This is a Tribune story, I believe.

19 BY MR. LOEVY:

20 Q There are a couple of occasions where you are

21 quoted in the article?

22 A Yes.

23 Q Were you quoted accurately?

24 A Yes.



1 Q Is there anything in that article that you

2 wish to take issue with?

3 A No, not really. The one thing that I did

4 mention in here, which I can't recall who the source

5 of the information is, but as I said before, my

6 understanding was there was no intervening criminal

7 history. I made that comment here, no other criminal

8 record in DuPage County and the check of Cook County

9 records showed no record for him. Apparently that's

10 what I relied upon.

11 Q I understand.

12 A I was told he had no other criminal history.

13 It may have been his lawyer that told me that because

14 we did speak on the telephone. His lawyer may have

15 been the one that represented that he had no other

16 history.

17 Q Other than that, is there anything else in

18 the article that you take exception to?

19 A No, no.

20 Q Did you move to dismiss, by you I mean your

21 office move to dismiss the indictment against

22 Mr. Lyons?

23 A My recollection is based upon the DNA

24 profile, we agreed to vacate the conviction. And



1 then the case, as you know, the case, the legal

2 status of the case is the indictment is still on

3 file. It's not, there is no judgment. So we then

4 move to dismiss it. If we move to nolle pros it,

5 which is the legal term. We move to nolle pros it

6 and we nolle the case.

7 Q Based on the same considerations --

8 A Correct.

9 Q -- that you just testified to?

10 A Right.

11 MR. LOEVY: That's all I have. Thank you very

12 much.

13 THE WITNESS: You're welcome.

14 EXAMINATION

15 by Mr. Levine:

16 BY MR. LEVINE:

17 Q Mr. Birkett, if you had known whatever the

18 intervening criminal act was of Mr. Lyons that had

19 occurred and the information that you were operating

20 under was not correct, would you have signed that

21 clemency petition?

22 A I may still have, but I would have reviewed

23 the history and asked them to look at the reports.

24 That's all. I may still have signed it. I still to



1 this day don't know exactly what it was. What the

2 offense was. But there is no question that it would

3 not have affected any of the other decisions that I

4 have made.

5 Q It would depend on the nature of what the

6 offense was?

7 A Right, right.

8 Q Do you remember when the first time was that

9 you heard about this case as far as the criminal

10 prosecution was concerned?

11 A In 1987 you mean?

12 Q Correct.

13 A I probably learned about it as it's coming

14 through the assignment system. Katherine Creswell at

15 the time was assigned to, while she was assigned to

16 the case, I am sure I was aware of it while it was

17 pending before I actually began the trial of the

18 case. Sometime between the charging and the trial I

19 would have learned about it during those intervening

20 months.

21 Q Do you have any independent recollection of

22 when you first became more involved with the case or

23 knew the specifics of the case prior to the trial?

24 A It was probably after it was set for trial,



1 sometime after it was set for trial. I don't recall

2 when the actual setting date was. When I began

3 working on the case, I think the case was already set

4 for trial. That's my recollection. I would have to

5 look at something.

6 Q Do you remember what you did as far as your

7 own personal involvement in preparing to try this

8 case in 1988?

9 A I reviewed all of the police reports, met

10 with Katherine, divided up the witnesses. And did a

11 routine trial preparation, which is review the case,

12 make sure that we have all the witnesses under

13 subpoena, notifications are out and we have done the

14 appropriate research and made sure all the proper

15 motions have been filed and ruled upon.

16 That's pretty much it. The normal trial

17 prep.

18 Q Would that include, for instance, looking

19 over evidence that was collected, looking over at

20 least the list of evidence that was collected in this

21 case?

22 A Yes.

23 Q Would it also include review of any lab

24 reports from the DuPage County Sheriff's office as



1 far as their analysis of any of the evidence in the

2 case?

3 A Yes.

4 Q Do you remember meeting with any specific

5 witnesses before the trial?

6 A I think that I put on, I don't recall, but I

7 did meet with Becky. But she was prepared and the

8 trial prep was primarily conducted by Kathy Creswell

9 at the time. I met with the statement witnesses. I

10 can't recall the other witnesses that I put on.

11 I cross examined the defendant, so I prepped

12 his. I believe that I prepped our rebuttal

13 witnesses. I think that I put on at least one of our

14 rebuttal witnesses. That's pretty much all I did.

15 Q Do you remember then specifically meeting

16 with the victim Ms. Auten prior to the trial itself?

17 A Yes.

18 Q Do you recall how many times that you met

19 with her?

20 A I think that I only met with her once.

21 That's what I recall. I think that I met with her

22 once. Katherine did most of the work with the

23 victim.

24 Q Do you recall perhaps sitting in with her,



1 with Ms. Auten when Judge Creswell prepared her for

2 her trial testimony?

3 A I believe that I sat in for some of it, not

4 all of it.

5 Q Did you as the state's attorney, is the

6 state's attorney the charging agency for felonies in

7 DuPage County?

8 A Yes.

9 Q Are individual police officers and

10 municipalities allowed to charge without the consent

11 of the state's attorney in DuPage?

12 A Under Illinois law only the state's attorney

13 can bring a felony charge. Law enforcement can, if

14 they choose, but it would be a violation of their own

15 policies to bring a criminal complaint and have a

16 felony come through the system. That's not the way

17 that it works here.

18 We have 24 hours a day, 365 days a year

19 felony screening where in order to charge a felony, a

20 police officer must review the facts with a screening

21 assistant and the screening assistant must approve

22 the felony. And on the complaint forms, which has

23 been the history of the office as long as I can

24 recall, the assistant state's attorney's initials are



1 on the complaint.

2 So the judge who is reviewing it or whoever

3 is looking at the complaint knows it was reviewed and

4 an assistant state's attorney reviewed and approved

5 the charges. That's the policy and the practice.

6 Q Did you remember having anything to do with

7 the charging decision in this case of Marcus Lyons?

8 A I don't believe that I was involved in the

9 charging decision itself.

10 Q When you actually put on the case, you tried

11 it with Judge Creswell?

12 A Yes.

13 Q Who is a judge now, but was one of your

14 assistants at that time?

15 A Yes.

16 Q Do you recall Ms. Auten's testimony during

17 the trial?

18 A Yes.

19 Q Do you recall that she in court identified

20 Marcus Lyons as her attacker?

21 A Yes.

22 Q Had you reviewed that identification

23 testimony with her or do you recall speaking to her

24 about it at the time when you met before trial?



1 A I know that Kathy certainly did or Katherine

2 Creswell did. I believe that I did, but I don't

3 recall. I don't have a vivid recollection of the

4 conversation itself.

5 I do remember the office that Katherine was

6 in was on the second floor of the old courthouse or

7 of the old state's attorney's building. I remember

8 Becky in that office. I was there for at least part

9 of the pretrial interview.

10 Q How would you describe Ms. Auten's

11 identification in terms of credibility, certainty of

12 Marcus Lyons at the time that you observed her both

13 at trial and perhaps pretrial identify Marcus Lyons

14 as the offender?

15 A It was compelling.

16 Q At any time did you note Ms. Auten waver or

17 doubt her identification --

18 A No.

19 Q -- of Marcus Lyons either before trial,

20 during trial or after trial?

21 A Not at all.

22 Q Was there anything about your interaction

23 with Ms. Auten at any time that made you pause as to

24 her credibility or doubt her credibility as a witness



1 and in her identification of Marcus Lyons as her

2 attacker?

3 A No.

4 Q Do you recall what kind of identification

5 evidence was offered at trial against Marcus Lyons?

6 A I recall that the composite sketch, which I

7 used, actually used it in my rebuttal argument, the

8 photo line-up, the physical line-up, her

9 descriptions. The fact that clothing that was

10 similar in description to what Rebecca had provided

11 was found in his home.

12 His voice was identified during the line-up

13 as well. That's my recollection, I believe. So

14 there were, I may have missed something. But there

15 was in addition to that the woman who ran the

16 complex, the apartment complex had identified the

17 individual who was depicted in the composite was

18 Marcus Lyons who lived in the apartment complex.

19 I can't recall how long he had been there,

20 but he was a recent renter. He had just moved into

21 the complex. So those pieces of identification were

22 altogether compelling. In addition to Rebecca

23 Auten's in court testimony, which was of itself

24 compelling. The corroboration of that identification



1 was overwhelming.

2 Q Was the office manager from Maple Lakes

3 apartment complex, was that Laura Pikich?

4 A That is my recollection that she was the

5 apartment manager. That is the name that is in the

6 discovery. I recall that being a very important

7 piece or compelling corroboration.

8 Q Do you remember also a next door neighbor

9 testifying that she was shown the composite and also

10 identified Marcus Lyons from the composite?

11 A Yes.

12 Q Do you recall her testifying at trial as well

13 as to that?

14 A I recall that we called those witnesses. I

15 don't recall her, I don't have an independent

16 recollection of her testimony, but I know that

17 Rebecca Auten's testimony was substantially

18 corroborated by other witnesses.

19 Q Her name was Ms. Riley?

20 A That rings a bell.

21 Q A second ago you said that you used the

22 composite. How did you use the composite at trial?

23 A Just like any other physical exhibit that you

24 use in closing argument. I picked up, because if you



1 look at the record on the cross examination of

2 Rebecca Auten, the defense shifted from an ID defense

3 to a consent defense.

4 Actually I remember going back to chambers

5 because I objected. They didn't, they had not

6 disclosed a consent defense. And the cross

7 examination was is it, this is not a mistaken ID any

8 more, this is a consent defense. So in rebuttal

9 argument to what the defense argued, I made it a

10 point is this an ID case or is it a consent defense.

11 Well, it's neither. He is guilty. I walked

12 up right next to Marcus Lyons and I held up the

13 composite to demonstrate to the jury, she didn't get

14 it wrong. These witnesses are not wrong. He is the

15 guy. I don't recall my exact language, but I used

16 the composite because I felt the composite was a

17 good, I mean it was a fairly good composite. Not

18 fairly good it was a very good composite.

19 Q Judge Creswell described it as almost like a

20 picture of Marcus Lyons. How would you assess the

21 similarity between the composite and Marcus Lyons at

22 the time of trial?

23 A Obviously it's not a picture, but that's an

24 accurate description. It was a very close



1 resemblance. It was an extremely close resemblance,

2 which in a lot of cases you don't have a composite.

3 You get composites in a lot of cases and the police

4 use it as an investigative tool.

5 When the actual arrest takes place, the

6 victim may have recalled a feature that is actually

7 different than the actual person. But it's just the

8 way the victim describes it.

9 It's all, there is a lot of potential error

10 built in. That's why they are not used, they are

11 used as an investigative tool more than anything

12 else. If you, for example, you put a composite on TV

13 or put out a news release, you put the composite up

14 as an investigative tool. That's the purpose of it.

15 It's very unusual to have one as rock solid or as

16 closely, that close. So that's the way it was used.

17 Q You mean as close as it was in this case?

18 A Right.

19 Q The composite was matching the actual look of

20 Marcus Lyons?

21 A Correct, Marcus Lyons.

22 Q You mentioned before that at some point

23 during the trial the defense went from one of

24 identification to consent. Would the, would it be



1 implicit in the defense of consent that the actual

2 defendant committed the offense, but it was

3 consensual?

4 A Yes, that's why the consent defense is

5 required under the rules of discovery to disclose it

6 so you don't take your opponent by surprise, that we

7 prepare for one case and we are trying another case.

8 Obviously we prepared for an identity

9 attack, they are challenging the ID, not the

10 credibility of the victim that she was actually

11 raped. They are saying it was not Marcus Lyons.

12 Then Marcus Lyons, in mid stream they shift to a

13 consent defense asking the victim questions that

14 challenged her credibility as a rape victim, not as

15 somebody who had an encounter with the defendant.

16 Q So you can't say I didn't do it, but if I did

17 it, it was consensual?

18 A That is my opinion. Obviously Judge Malling

19 allowed them to go forward with their strategy.

20 Q Do you remember the identification witnesses

21 including Ms. Auten being cross examination during

22 the trial?

23 A Yes.

24 Q Was there also testimony elicited by the



1 state's attorney, both yourself and Judge Creswell of

2 some of the circumstances surrounding all the

3 identifications in the case from the office manager,

4 the neighbor, to also the live line-up and the photo

5 line-up, was that all presented in this case?

6 A Yes, it was.

7 Q Did Judge Kennedy, John Kennedy who was also

8 an assistant at that time in your office, did he, in

9 fact, testify also as to the circumstances around the

10 live line-up?

11 A Yes, he did.

12 Q In an earlier testimony former Judge Telander

13 stated at the time of this photograph and live

14 line-up, it was his office policy that whenever there

15 was a photograph, there was also a live line-up. Do

16 you recall that?

17 A I do recall that if there was a photo

18 line-up, and you have an opportunity to follow it up

19 with a live line-up, then yes, you do a live line-up.

20 Q Was there anything inherently suggestive

21 about that process?

22 A No.

23 Q At trial did you, in fact, introduce some of

24 the exhibits, such as the composite, the clothes that



1 Mr. Lyons wore, the photo line-up, were some of those

2 admitted at trial by your office?

3 A Yes, but the clothes were the ones that were

4 recovered from his apartment. Not that he, they fit

5 the description that the victim had given.

6 Q Did Ms. Auten, in fact, identify those pieces

7 of clothing, I am talking the brown pants and

8 jacket --

9 A Yes.

10 Q -- as those worn by her attacker and they

11 were retrieved from Mr. Lyons apartment?

12 A Yes.

13 Q During the trial do you ever remember any

14 motions or objections made to the identification

15 evidence that was presented by the state's attorney

16 against Mr. Lyons?

17 A Not that I recall. I don't recall there was

18 any. There was no, certainly no pretrial motions

19 that I'm aware of to challenge the integrity or

20 credibility of the line-up. I don't recall any

21 objections during the trial.

22 Q Do you recall any of the other factors beyond

23 the identification and the two pieces of evidence

24 that linked Mr. Lyons to this case such as his



1 statement to Judge Telander?

2 A His, there were a variety of statements that,

3 we put in all of the statement evidence, which were

4 essentially false exculpatory statements and false

5 alibis.

6 Q Did you, in fact, cross examination Mr. Lyons

7 on those very points?

8 A Yes.

9 Q You even showed him at one point

10 Mr. Telander's written memo of his statement and

11 interview with Marcus Lyons and you introduced that

12 at trial?

13 A That's my recollection.

14 Q At the time that you did the trial, did you

15 have any doubt that Mr. Lyons was, in fact, the

16 attacker?

17 A No.

18 Q What did you base that on?

19 A The evidence that I just described here,

20 which was compelling. It was overwhelming evidence

21 that he was, in fact, the attacker. Physical

22 line-up, the photo line-up, the composite, the

23 identifications by independent witnesses who had no

24 motive to fabricate, the testimony of Rebecca Auten,



1 his varying statements to the police. He was

2 impeached on several points. All of that evidence

3 was compelling.

4 Q During the pretrial proceedings is the

5 defendant made aware of what evidence was collected

6 and what tests were conducted by the sheriff's labs

7 in a case like this?

8 A The defendant, the defendant's attorney is.

9 Q That's what I meant.

10 A The defendant's attorney is in possession of

11 the discovery materials. And you would have to ask

12 the defendant whether or not he was sufficiently

13 apprised of what was in the discovery materials. I

14 have no idea.

15 Q I'll rephrase that. So is the plaintiff's

16 attorney, Mr. Lyons' attorney at the time of the

17 criminal trial, would they typically be provided with

18 copies of the police reports, lab reports?

19 A Yes.

20 Q Evidence, things like that?

21 A Yes.

22 Q Does the state's attorney have a duty to turn

23 over those documents to an accused in a felony

24 matter?



1 A Yes.

2 Q Is the defendant in a criminal matter able to

3 request either testing or retesting of any physical

4 evidence that has been collected in the case?

5 A He can.

6 Q So can the state's attorney, is that correct?

7 A Yes.

8 Q Did you, in your review did you see any

9 evidence that you felt either needed to be tested

10 that wasn't or retested that wasn't?

11 A At that time?

12 Q At that time.

13 A No.

14 Q Do you have any recollection of why Ms.

15 Auten's bra was not tested at the time of the

16 criminal trial?

17 A I don't know if it was, I have no independent

18 recollection as to whether or not it was examined or

19 not. I know the panties were, but I know the reason

20 why a submission might not have been made was because

21 the bra was not on her body on the time and neither

22 were the panties.

23 When the assault began or when it was

24 completed, she was on the floor. And the attack took



1 place while she was naked. She had no clothing on.

2 The panties were submitted. To this day I don't

3 recall why a decision to submit the panties or not

4 submit the panties would really have affected the

5 case.

6 Q Was it perhaps just a matter of course?

7 A It is a routine matter just in the practice

8 or policy. I don't know there is any written

9 protocol, but in a typical rape case you collect the

10 clothing, especially the undergarments of the victim.

11 That is typically what occurs and that happened in

12 this case. But I don't recall the bra ever having

13 been submitted until we submitted it years later.

14 Q For what you just said because the victim Ms.

15 Auten was not wearing any clothing at the time of the

16 attack, is that your recollection of why that was not

17 something that you would have requested --

18 A Yes.

19 Q -- as a prosecutor to be tested?

20 A Yes.

21 Q You didn't feel there would be any access --

22 A Yes.

23 Q -- between the crime and the pieces of

24 clothes?



1 A Right.

2 Q When did that change?

3 A When did what change?

4 Q Your thought that perhaps somehow anything

5 contained on the bra might actually be exculpatory?

6 A Just recently. This is, obviously when I say

7 just recently, I'm talking about just in the past

8 couple of years. Because PCR technology, polymer

9 chain reaction and the new DNA technology that is

10 available is very, very sensitive. And even though

11 Becky may not have been wearing the bra at the time,

12 he may have had contact with the bra before the rape

13 occurred.

14 And there may be an opportunity for DNA on

15 the bra independent of the attack itself. So those

16 are the reasons why. If he had contact with the bra,

17 he is not wearing gloves, there is always the

18 possibility that the DNA from the attacker is going

19 to be on the bra anyway, even though she is not

20 wearing it during the attack.

21 That's why I said I recall in conference

22 with Alice about requesting to have the panties

23 tested, I said let's just get everything checked.

24 Check with the clerk's office, I believe there was



1 another, at least one other item of clothing that we

2 introduced at trial. That's what we did.

3 This is very recent, very recent origin that

4 we are talking about contact DNA. We just solved a

5 murder case based on contact DNA a year or so ago,

6 two years ago. Where the offender who raped the

7 victim pulled her panties down and we got his DNA off

8 the panties from that human contact. That's just

9 recent. That's brand new. I don't want to say brand

10 new, but it's very recent technology.

11 Q In this case the source of DNA came from a

12 semen stain on her bra, correct?

13 A Correct. But at the time that we submitted

14 it, we didn't know what the stain was. For all of

15 those reasons you want to do, you don't want to do

16 multiple submissions, so we did one submission

17 including everything.

18 Q Did you ever come to an understanding at any

19 point from any piece of evidence or testimony that

20 any of the offender's semen actually came in contact

21 with the bra?

22 A There is only, no direct evidence of that,

23 but there is at least a theory upon which you could

24 make that argument.



1 Q Are you aware of any testimony from anybody

2 that would have placed the bra in a position to

3 receive the attacker's semen during Ms. Auten's rape?

4 A No.

5 Q That understanding has never changed, is that

6 correct?

7 A That has not changed.

8 Q Would it be fair to say when you talked about

9 both in your press release and today, that this

10 evidence concerning the DNA on the bra would provide

11 an argument against guilty beyond a reasonable doubt,

12 rather than an outright proof of innocence of Marcus

13 Lyons?

14 A Right, it establishes clearly to me, because

15 I think that you have a plausible argument that the

16 rapist could have left this DNA. That creates a

17 reasonable doubt as to the defendant's guilt because

18 the state has done their due diligence to try to

19 explain it away by someone else who was intimate with

20 Becky Auten and submitted his DNA and it's not him.

21 Based on that there is no question that it

22 creates a reasonable doubt as to his guilt. It does

23 not establish necessarily actual innocence. But that

24 is why we have this technology available now, so that



1 defendants can pursue it and try to establish that

2 there was reasonable doubt based upon new technology.

3 That's what happened in this case. There is clearly

4 a reasonable doubt as to his guilt.

5 Q There are some cases where actual DNA is

6 obtained , if I can say from inside of an, I admit

7 that is a poor choice of words, of a rape victim will

8 conclusively establish that the semen was not and the

9 DNA was not the attacker?

10 A Correct.

11 Q That does happen in some cases and that leads

12 to exoneration in some cases?

13 A That leads to, well, exoneration is also

14 frequently thrown around. Exoneration does not mean

15 actual innocence. There was an acquittal. He has

16 been exonerated of the charge. In my opinion, unlike

17 a case like you said, you know for a fact there has

18 been no other sexual act with this victim and you

19 recover semen from the victim, you can conclude

20 beyond any question that that person is not guilty,

21 not just not guilty, he is actually innocent.

22 Those cases do happen. This is not such a

23 case.

24 Q Would it be fair to say that this is



1 qualitatively different from that scenario?

2 A It's different in that we have established

3 that Marcus Lyons is not guilty of this offense. We

4 could not sustain our burden of proof. It does not

5 mean that rules out all possibilities. It just means

6 that he is not guilty. He can never be recharged.

7 He should never be recharged. The government could

8 never sustain its burden of proof.

9 I would never suggest that he did this ever

10 again because the evidence concludes that he is not

11 guilty under the standard of proof beyond a

12 reasonable doubt. I don't know what the other

13 possibilities are. I don't speculate on them.

14 Q Was there anything in your review of the

15 physical evidence or lab reviews, lab reports in this

16 criminal case that gave you any doubt about the

17 prosecution of Marcus Lyons at the time of the trial?

18 A No.

19 Q Was there anything that singled him out or

20 singled out or stood out to you as indicative of his

21 innocence at the time?

22 A No.

23 Q I say at the time of his trial?

24 A No.



1 Q Do you have an understanding how the DNA

2 sample was collected from Mr. Lyons in this clemency

3 exoneration process?

4 A I don't know.

5 Q Do you remember ever talking to Don Janus, a

6 detective from Woodridge concerning this case?

7 A I am sure that I talked to him back at the

8 time of the trial or during the trial preparation,

9 but I haven't talked to him.

10 Q Finally, Mr. Birkett, at the time of the

11 trial did you have any doubt at the time of Mr. Lyons

12 trial in 1998 that he was guilty beyond a reasonable

13 doubt?

14 A No.

15 Q Based upon the evidence available?

16 A Not at all.

17 MR. LEVINE: Thank you.

18 MR. LOEVY: I have got some more now,

19 Mr. Birkett.

20 THE WITNESS: Okay.

21 EXAMINATION

22 by Mr. Loevy:

23 BY MR. LOEVY:

24 Q Since becoming the state's attorney for the



1 County of DuPage until today, on how many occasions

2 have you asked the prisoner review board and the

3 governor of the state to grant executive clemency?

4 A I don't recall, but it's obviously a rare

5 circumstance. I believe that I have, there have been

6 a few cases where I have not opposed a request for

7 clemency, but I don't recall how many.

8 Q But in this case it's more, in Mr. Lyons

9 case.

10 A Yes.

11 Q It was more than not opposing?

12 A Right.

13 Q You petitioned to have it granted?

14 A Right.

15 Q How many times have you actually other than

16 Mr. Lyons --

17 A I don't recall another case. I can simple

18 recall a couple of cases where we would say where we

19 are not opposed, we are not opposed. And you know,

20 this would be a rare case.

21 Q This is the only case where you actually --

22 A Correct.

23 Q -- joined in the petition?

24 A Correct.



1 Q When you were, including now, when you

2 prosecute cases are you bound by the ethical

3 determination that you only prosecute cases where you

4 think that the person is guilty of the crime?

5 A The standard is that you shall not proceed

6 with a case unless you are convinced there is

7 probable cause to go forward with the charge. My

8 philosophy and what I teach is that you don't present

9 cases unless you have a reasonable, there is a

10 reasonable likelihood of conviction at trial and you

11 believe that the defendant is actually guilty.

12 So it's both. It's not just probable cause,

13 but that you have, there is a reasonable probability

14 that the defendant will be found guilty. As you know

15 oftentimes you can know someone is guilty, but the

16 evidence won't sustain that burden because you lack

17 the admissible evidence necessary to convict.

18 So it is a balance between both, but you

19 don't go to trial unless you believe somebody is

20 guilty.

21 Q Can you estimate for me the number of

22 criminal trials that you have prosecuted in the

23 course of your career?

24 A Trials, actual trials?



1 Q Yes.

2 A I can't --

3 Q Hundreds?

4 A It would be hundreds. I have personally

5 tried well over 100 cases, well over 100 felony cases

6 to verdict. I don't recall how many actual cases I

7 have tried.

8 Q In each of those cases, irrespective of the

9 verdict, you believe that the person that you were,

10 that the state was prosecuting was guilty of the

11 crime?

12 A Correct.

13 Q You answered in response to the questions by

14 counsel that Mr. Lyons had been identified and ID'ed,

15 as you put it, by independent witnesses?

16 A Correct.

17 Q Am I correct in saying he was never ID'ed

18 personally by independent witnesses, only the

19 composite?

20 A Correct. The question was what other

21 identification evidence was there. Those two

22 independent witnesses who looked at the composite and

23 said that is Marcus Lyons. That is identification

24 testimony. That's not to suggest that they said he



1 is the rapist. They said that is the person.

2 And it also, during the course of a trial

3 like that or any trial, the state, it's incumbent

4 upon the state, just like the defense theory of their

5 case, they want to establish what led to the

6 defendant being there, the course of the

7 investigation.

8 It is important for the jury to have a

9 flavor of how did Mr. Lyons arrive here. And that

10 independent identification testimony was, I thought,

11 very important to corroborate Rebecca Auten, but also

12 the way that the police conducted a very thorough and

13 professional investigation.

14 Q There was a composite as you have

15 testified --

16 A Yes.

17 Q -- used during the trial. Do you have a

18 recollection of how that composite was created?

19 A My recollection is that Becky would have sat

20 down with the police officer who was using the kit.

21 And the kit is based upon the verbal descriptions

22 that are made by the victim. Then the pieces are put

23 together as the victim goes through that description

24 with the officer who is using that Identi-Kit.



1 Q Was the Identi-Kit used frequently during the

2 point of time of Mr. Lyons' trial?

3 A I think it was a fairly common practice where

4 you have unsolved crimes and you have a fairly good

5 description of the offender or you have a witness who

6 had a good look at the offender. You want to try as

7 soon as possible to prepare an Identi-Kit, so it was

8 pretty normal.

9 Q Are Identi-Kits used now in DuPage County?

10 A I don't know. I don't really recall if they

11 are. There are, there is a new technology out there

12 that is used. I think there are computer models.

13 There are also forensic artists who, rather than use

14 an Identi-Kit, will use a sketch. I think that the

15 Identi-Kit is still used. I am not sure how widely

16 it is still used. You would have to ask the law

17 enforcement community.

18 Q Do you recall the last time that you used a

19 composite created by an Identi-Kit in a trial?

20 A I don't recall.

21 Q You made reference to PCR technology. What

22 does that mean?

23 A That's polymers chain reaction technology and

24 the advancement of that technology. It's been, PCR



1 has been around for a while, but now the newer

2 applications are much more sensitive.

3 Q PCR technology was available at the time of

4 Mr. Lyons' trial, is that correct?

5 A You know, I can't recall if it was or not,

6 but certainly not in the, obviously the science was

7 available, but it was not nearly as sensitive. Touch

8 DNA was virtually unheard of, at least by lawyers at

9 the time. Lawyers are learning more and more. When

10 I say lawyers, I am talking about prosecutors to be

11 aware of it.

12 Q Even in 1988, though, there was technology

13 available to test actual semen to make identification

14 determination, isn't that correct?

15 A There was a, you have to talk to the lab, but

16 the protocol was if there was an identifiable stain,

17 if you can see a stain, then they would submit.

18 Today it's completely different. It's not just what

19 is identifiable visibly, but if you know there has

20 been human contact with an object, then they will,

21 you have to go talk to the lab themselves.

22 But back then PCR would not have been

23 available in terms of testing for stains that were

24 not observable. Do you understand what I am saying?



1 Q Yes, I think so.

2 A It was not that sensitive. The technology

3 that was available at that time was not that

4 sensitive. The beauty of PCR back then was RFLP,

5 restriction fragment length polymorphism testing was

6 the state of the art. That was what was being used

7 wildly in the forensic field. You needed a much more

8 greater quantity.

9 PCR technology did not require as much, but

10 you still had to have some visible, for example, in a

11 rape case you needed some visible, when I say visible

12 under the microscope, but something to test.

13 Q But if there was a visible stain, there could

14 be a test?

15 A Correct, that's my understanding, yes.

16 Q I understand it's just your understanding.

17 That test would lead to either an identification or

18 nonidentification of a suspect?

19 A Not necessarily. It depends on what is there

20 and what they are able to come up with. Sometimes

21 you get results where they can say, yes, there is

22 semen but not enough to get a profile. It all

23 depends on what the circumstances are.

24 Q But in some cases it could lead to an ID?



1 A As far as I know. That's my recollection.

2 Q Fair enough.

3 MR. LOEVY: I have nothing further.

4 MR. LEVINE: Nothing for me.

5 MR. LOEVY: Thank you.

6 MR. DOWNING: Do you want to review the

7 transcript if it's prepared? I will advise that you

8 do.

9 THE WITNESS: Yes, let's reserve it.

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24



1 STATE OF ILLINOIS ) ) ss:

2 COUNTY OF C O O K )

3

4 The within and foregoing deposition of the

5 aforementioned witness was taken before DANA L.

6 LARIMER, C.S.R., R.P.R., and Notary Public, at the

7 place, date and time aforementioned.

8 There were present during the taking of the

9 deposition the previously named counsel.

10 The said witness was first duly sworn and was

11 then examined upon oral interrogatories; the

12 questions and answers were taken down in shorthand by

13 the undersigned, acting as stenographer and Notary Public;

14 and the within and foregoing is a true, accurate and

15 complete record of all of the questions asked of and

16 answers made by the aforementioned witness, at the

17 time and place hereinabove referred to.

18 The signature of the witness was not waived,

19 and the deposition was submitted, pursuant to

20 Rules 30(e) and 32(d) of the Rules of Civil Procedure

21 for the United States District Court, to the deponent

22 per copy of the attached letter.

23

24



1 The undersigned is not interested in the within

2 case, nor of kin or counsel to any of the parties.

3 Witness my official signature and seal as

4 Notary Public in and for Cook County Illinois on this

5 _________________ day of _________________, A.D. 2010.

6

7

8

9

10 ______________________________________ DANA L. LARIMER, C.S.R., R.P.R,

11 License No. 084-004152 Notary Public

12 311 S. Wacker Dr., Suite 300 Chicago, Illinois 60606

13 Phone: (312) 263-3524

14

15

16

17

18

19

20

21

22

23

24



1 Merrill Legal Solutions

2 311 S. Wacker Dr., Suite 300 Chicago, Illinois 60606

3

4 WITNESS CERTIFICATION

5

6

7 I hereby certify that I have read the foregoing

8 transcript of my deposition consisting of pages 1

9 through 56, inclusive. Subject to the changes set

10 forth on the preceding pages, the foregoing is a true

11 and correct transcript of my deposition taken on June

12 10, 2009.

13

14

15 (signed)

16

17

18

19 SUBSCRIBED AND SWORN TObefore me this day of

20 A.D. 2010.

21

22Notary Public

23

24



Merrill Legal Solutions 311 South Wacker Drive, Suite 300 Chicago, Illinois 60606 (312) 386-2000 March 15, 2010

Office of the State's Attorney Joseph E. BirkettAttn: Mr. Joseph Birkett503 N. County Farm Rd.Wheaton, Il 60187

Case: Lyons vs Village of Woodridge Deponent: Joseph Birkett Date taken: 6-10-09

Dear Mr. Birkett:

The above referenced deposition has been transcribedand is ready for review, pursuant to the Rules ofCourt.

Please contact our office at your earliestconvenience for an appointment to review thedeposition transcript or you may contact counsel fora copy of the transcript for your review.

Upon failure to comply within 30 days, we shallforward an appropriate affidavit of noncompliance tocounsel without further notice.

Very truly yours,

Merrill Legal Solutions

DL169970 DL

MERRILL LEGAL SOLUTIONS (312) 386-2000



CASE: Lyons vs Village of Woodridge

DATE TAKEN: 6-10-09

DEPONENT: Joseph Birkett

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(Signed) _______________________________ DATE________

Reporter: Dana L. Larimer

MERRILL LEGAL SOLUTIONS (312) 386-2000

Joseph Birkett June 10, 2009 - Chicago Tribune · 2010. 12. 10. · Joseph Birkett June 10, 2009...

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