- Bobby Sims
Chicago police officer Marco Proano and his partner were driving back to their station when a report came over the radio about a man with an AK-47.
It was a warm summer evening, just after midnight, Saturday becoming Sunday. The man with the assault rifle was near 80th and Laflin, a caller had said. Proano, who was 36, and his partner, Robert Johnson, were four blocks away, at 79th and May. Their shift was nearly over. Proano made a U-turn and headed back toward Laflin.
Before they got there, another report from a caller said the man with the assault rifle was now a block west of Laflin, at 80th and Ashland. He was described as black, with dreads, wearing a white T-shirt and white or khaki shorts.
Proano double-parked near 80th and Ashland. Other officers responding to the calls were also pulling up. This was in the Gresham neighborhood, a low-income, black community long plagued by violence. As Proano and Johnson stepped out of their unmarked Crown Victoria, they heard another report on their radios that the man had entered a party at 8004 S. Ashland.
The squat brick storefront at that address was a former Masonic lodge. Its front window was covered, and two men whose black shirts read security on the back were in folding chairs near the door. Music and raucous voices resounded from within. A dance was going on, the security guards said. A sergeant, Phillip Orlando, told them police had heard a man with an AK-47 was inside. That couldn't be, the security guards said—they'd frisked everyone who'd entered. Orlando said he was going in nonetheless.
The place was crammed with teens. Orlando announced that the party was over and that everyone had to leave. The lights came on, and the partygoers began filing out. As they exited, Proano and other officers patted down the males and checked the females' purses.
Then a girl emerged from the storefront in the tight clasp of the young man behind her. She was 16-year-old Keoni Jackson, he was 19-year-old Niko Husband. Niko, five-foot-ten and slender, had braided hair and was dressed in a green T-shirt and blue jeans. The front of his body was pressed against Keoni's back, and either one or both of his arms were around her, below her neck. Police would maintain that Jackson was clearly distressed, demanding to Niko, "Who are you? Let me go."
A scuffle began between Niko and the officers, and ended suddenly with three blasts from Proano's semiautomatic. Niko pulled a pistol on them, police would maintain, and Proano responded by shooting him three times in the chest. He died almost instantly on the pavement in front of the storefront.
This was in July 2011. Two years later, at an annual awards dinner, Proano received the Superintendent's Award of Valor for his response at 8004 S. Ashland. A press release said a man had pulled a gun on police, and Proano had shot him, "neutralizing the lethal threat."
By the time Proano received the award, Niko Husband's mother had sued him. The lawsuit, filed in September 2011 by Priscilla Price, alleged that her son had posed no lethal threat to anyone, and that his death had resulted from Proano's "willful and wanton" conduct.
Chicago police fatally shot 44 civilians in the years 2010 through 2012, according to the Independent Police Review Authority. Twenty-four lawsuits stemming from fatal shootings by Chicago cops were filed in those years. Such lawsuits don't always make it to trial: the weaker suits often are withdrawn or dismissed, and the stronger ones settled. Of the 24 suits, five were dismissed or withdrawn, seven have been settled, and three are still pending. Nine were tried—including Price's suit last fall.
Price's case tested diametrically opposed accounts of what happened the night her son was killed. If Proano had needlessly killed Niko Husband, and his fellow officers had covered for him, that was certainly an injustice. If Proano was a hero being wrongly maligned, that was likewise unjust.
IPRA, which investigates all shootings by Chicago police, rendered its verdict on this incident in 2013. It found Proano's use of deadly force to be "in compliance with Chicago Police Department policy." That's almost always IPRA's conclusion, however, and, as in many of the agency's investigations, the finding was based on the accounts of the shooter and other police witnesses. The incident wasn't captured on video.
A lawsuit, perhaps, had a better chance at getting to the truth. Proano and the other police witnesses would be questioned not by an IPRA investigator constrained by police union rules, but by a lawyer hunting for contradictions. Proano would have his own lawyers to help him tell his story. And the jury would hear from Keoni Jackson, the 16-year-old who police maintained was held against her will. (A spokesperson for IPRA said the agency made "multiple attempts" to reach Jackson for an interview but was unsuccessful. My phone messages to Jackson to ask about this weren't returned.)
On the other hand, in our adversarial justice system, the goal of lawyers on both sides isn't uncovering truth—it's winning.
At least the trial would offer 12 laypeople a say. They'd have a power seldom granted to ordinary citizens: to review and judge the actions of police. In the rare trials in which the defendant is a law enforcement officer, a jury serves as a truly independent police review authority.
- Bobby Sims
On a morning in late October, Proano and Price sat a dozen feet apart in a courtroom on the 20th floor of the Richard J. Daley Center. The trial was about to start, and the lawyers who'd usually sit between Proano and Price were meeting with the judge in her chambers. Price, 53, has worked in food service for the University of Chicago Medical Center for 20 years. She's tall and broad-shouldered. Her arms were wrapped around herself, her expression was grim, and her eyes were fixed on the table in front of her. The moments when she was left alone with Proano were especially hard, she told me later, given that "I didn't care to be in the same room with him."
Price knew that the trial would rub salt in a wound that had yet to close for her. She'd have to sit through more than a week of exhaustive testimony about the moments leading to Niko's death. She said she was willing to endure that because "I want justice for Niko." What would justice be? "I want to see Proano punished," she said. "I don't want him to have a job as a police officer."
The lawsuit wouldn't accomplish that, however, regardless of its outcome, since IPRA had already cleared Proano. Nor would the lawsuit punish Proano financially: he and the city were both defendants, but if they lost, only the city would pay.
Niko's father, Mark Husband, sat in the spectators' gallery. The gallery is small, but there was plenty of room on its benches that morning. Husband, 54, dressed in suit and tie, had taken unpaid leave from his job as a cook at Chili's to watch the trial. He and Price split up years ago, but he continued to see Niko regularly. Husband was also a plaintiff, as were Niko's three siblings. "It's not about the money—we just want to find out what happened to our son," he told me.
Plaintiffs usually say it isn't about the money. But when the case was over, the city would either owe Price, Husband, and Niko's siblings a substantial sum, or it would owe them nothing.
The climate for such lawsuits has certainly been improving for plaintiffs, in light of the recent series of notorious police shootings captured on video. The climate for Price's suit would have been even better had the trial been delayed a month: it began four weeks before the city released the video of the fatal shooting of Laquan McDonald, the 17-year-old who was carrying a small pocket knife when a police officer shot him 16 times. The city made no offer to settle Price's suit. Donald Shapiro, Price's lead lawyer, says he doesn't know why, and officials in the city's law department wouldn't discuss the case or allow the lawyers who tried it for them to talk with me.
Proano, also in suit and tie, sat at a corner of the long lawyers' table, his hands folded in front of him. He's short and a bit pudgy, with a large head and an impish face. He was born in Ecuador, but he's lived in Chicago since at least high school. He graduated from Holy Trinity, then worked as a baggage handler at O'Hare for ten years. He earned a criminal justice degree from Daley community college and applied unsuccessfully for law enforcement jobs several times—as a Border Patrol agent, and with the police departments in suburban Brookfield and Chicago. He was accepted on his second try here, and became a probationary beat cop in April 2007. He declined to talk with me for this story.
Judge Elizabeth Budzinski soon entered the courtroom, along with the lawyers—three for the city, two for Price. A deputy then ushered jurors to the jury box. Shapiro had filed the case in Cook County circuit court rather than federal court in part because it's easier to get a "more liberal" jury in Cook County, he said. The local federal district pulls jurors not just from Cook but also from six nearby counties whose populations are whiter and wealthier. Still, of the 14 jurors (12 and two alternates) on this jury, 11 were white and only three were black.
Shapiro, 65, grew up in South Shore and has been a trial lawyer for almost 40 years. In 2003 he won a judgment of $9.6 million for the estate of Robert Russ, a 22-year-old Northwestern University football player slain by a Chicago police officer on the Dan Ryan. In his one other previous police-shooting lawsuit, he won a $4 million verdict.
To win Price's suit, Shapiro would have to persuade the jury that Proano's shooting was legally unjustified. As Judge Budzinski would later instruct the jury, a police officer's use of deadly force is legally justifiable "only when he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another." The plaintiff's burden of proof in a civil suit is not "beyond a reasonable doubt," but "more probably true than not." As in a criminal case, the verdict must be unanimous.
Shapiro began his opening statement by setting the scene for the jury: Niko, an engineering student at Kennedy-King College, lived with his mother and a sister. Shortly after midnight on a July night in 2011, Price called Niko, to check on him. He told his mother he was at a dance party, and that he'd call her afterward.
Shapiro recounted how reports about a man with an AK-47 had prompted police officers to end the dance early and search the partygoers as they stepped out the door. He said Niko walked out with his arms around his good friend, Keoni Jackson. "Nobody was choking her," Shapiro said. "That's just one of the lies the cops are gonna tell."
Several officers grabbed Husband and Jackson to separate them, Shapiro told the jury. The officers then began "manhandling" Husband, and one of them tased him, causing him "to jerk and scream out in pain." When that officer dropped his Taser, Proano thought he'd dropped his gun, Shapiro said. Proano shot Niko—"boom, boom"—then put his gun against Husband's chest, and shot him once more. "Wanton, willful, and malicious? You bet it is," Shapiro said. Proano had "snuffed out yet another black life on Chicago's south side." The city's lawyers objected in unison to that jab, and Judge Budzinski sustained their objection. But Shapiro had made his point.
Shapiro said that Proano and two other officers who wrestled with Husband would claim he pulled a gun on them, but no physical evidence would link Husband to that gun; four other officers who were near the shooting would testify that they never saw Husband in possession of a firearm. That's because he didn't really have one, Shapiro said: the pistol that police claim he had was a "throw-down gun," planted by officers to justify the shooting.
In his opening statement for the defense, assistant corporation counsel Jonathan Green told the jury that Proano had "a split second to react to save lives, and he and his fellow officers are still alive, thanks to his quick actions." Green said that during the scuffle between Husband and the officers, Husband pulled a stainless-steel semiautomatic from his waistband and aimed it at one of the officers, Lionel Piper. That's when Proano pulled his own gun and shot Husband.
"The death of a young man is always a tragedy," Green said. But the tragedy in this case resulted from "the choices Niko Husband made." He chose to carry a gun, grab a bystander, and resist police, Green told the jury. "And most of all, Niko Husband chose to pull his gun out and point it directly at Officer Piper. It was Niko Husband who made those choices—not Officer Proano."
- Bobby Sims
- Niko Husband and his mother, Priscilla Price
Juries are asked to consider whether a defendant committed a particular act; they're not supposed to decide cases based on evidence suggesting a tendency to commit such acts. "Propensity" evidence—which indicates that a defendant has done similar things on other occasions—is therefore usually inadmissible.
So the jury wouldn't hear about a shooting by Proano two years after he killed Niko Husband—a shooting that was captured on video.
On the evening of December 22, 2013, police officers curbed a Toyota carrying six black teens in the Roseland neighborhood near 95th and LaSalle, after it sped out of an alley. Proano and his partner arrived to assist. Video from the dash cam of Proano's own car showed him rushing on foot towards the Toyota with his gun drawn, held sideways and aimed at the car. When the Toyota started backing up, Proano, though not in its path, began firing.
Proano fired more than a dozen rounds into the car, according to a January 2014 lawsuit filed by the teens' mothers. One of the passengers was wounded in the shoulder, and bullets grazed his forehead and cheek. Another was wounded in the hip and heel. The car came to a stop against a light pole.
After the suit was filed, the city won a protective order prohibiting the plaintiff's lawyers from publicizing the video. The city settled the lawsuit in January 2015 for $360,000.
The video may never have seen the light of day but for the actions of Andrew Berman, a recently retired juvenile court judge who'd been on the bench for 18 years. Berman saw the video because one of the juveniles in the car had been charged with possession of a stolen motor vehicle; the Toyota had been stolen, though police didn't know it when they curbed the car. That juvenile's case came before Berman in January 2015—on his second-to-last day as a judge.
"This was the last trial in my career—and by far the most outrageous," he told me. Proano's actions infuriated him. "You can see from the tape that the moment the car moves, he's just blasting away, even though there's no threat [from the car] to anybody. He's shooting into the car itself. It was a miracle no one was killed. The first thought I had was, 'If the kids in the car are white, he never fires.' "
Berman felt that the video needed to be widely seen—so he copied it and leaked it to the Chicago Reporter, which published it online last June. Berman didn't know then about the Husband shooting, "but I wanted to make sure Proano was never allowed on the street with a gun again. I think he's just a trigger-happy guy."
Proano has been on desk duty since the 2013 shooting. Just five days after that episode IPRA found his shooting of Niko Husband justified. When Illinois attorney general Lisa Madigan asked U.S. attorney general Loretta Lynch last December for a Justice Department probe of the CPD, Proano's 2013 shooting was listed among the "troubling" incidents she named in her letter.
IPRA has yet to conclude its investigation of the 2013 incident—it suspends its probes when a law enforcement agency steps in to scrutinize an officer's conduct. Last week, an FBI spokesperson confirmed to me that its Chicago field office has opened an investigation into Proano's "actions on December 22, 2013."
Shapiro learned of Proano's 2013 shooting when the Reporter published the video. It didn't change the way he planned to try Price's case, because he knew that evidence of the Roseland shooting would be inadmissible. "But did I have a little more comfort in my own mind in saying [Proano] was trigger-happy? I sure did," he told me.
The rule about propensity evidence also applies to alleged victims, so the jury wouldn't hear about Niko's criminal record either.
Niko was arrested three times as a juvenile and ten times after he turned 18. Most of these were for minor offenses—trespassing, gambling, damaging public property, possession of a small amount of pot. The charges were usually dropped at his first court appearance.
But on New Year's Day 2009, police investigating a reported theft at the Ford City shopping center at 76th and Cicero found Niko and a security guard in a tussle on the ground in a parking lot. Court records are sketchy—it's not clear how the scuffle ended—but when the arresting officer searched Niko, he found a loaded semiautomatic pistol in his coat pocket. Niko pled guilty to unlawful use of a weapon two months later, and was sentenced to 18 months of probation.
On New Year's Eve 2009—almost a year exactly after his first felony arrest—police raided an apartment party in Niko's neighborhood and caught him with a .45-caliber clip in his pocket. He pleaded guilty a month later to unlawful use of a weapon by a felon, and was sentenced to three years in prison. He was accepted into the state boot camp instead, and after completing the four-month program successfully was paroled in July 2010.
Niko was a "people person" who liked math and tutored friends in it, Price told me in an interview at Shapiro's office. When I asked her why he'd been arrested so often, Shapiro's partner, Matt Basinger, shut down that line of questioning: "She's not comfortable talking about that aspect of Niko, and, quite honestly, neither are we as her lawyers."
Husband's rap sheet did suggest an improvement in his behavior. He wasn't arrested again after his release from boot camp in July 2010. Basinger was comfortable with Price discussing this change. Price said that being away from a neighborhood dominated by gangs seemed to allow Niko to switch paths. She said he was well aware that he'd used up his second chances: if he committed another felony, he'd be going to prison. He enrolled at Kennedy-King in the fall of 2010 and was enthused about school, she said.
Niko happened to be attending Kennedy-King at the same time as his father, because Mark Husband had returned to school at age 50 to study culinary arts. Niko "might have made some bad decisions earlier, but he was turning his life around," Husband told me.
"I wanted to make sure Proano was never allowed on the street with a gun again. I think he’s just a trigger-happy guy."
—retired Cook County judge Andrew Berman
Proano testified first in the trial. Shapiro pressed him on the circumstances that led to the shooting, his tone ranging from skeptical to incredulous. Proano was elusive and sometimes combative.
He recounted seeing Niko and Jackson emerge from the storefront, with Niko hanging on to her from behind. Shapiro confronted him with his 2012 deposition testimony. (In civil suits, most of the witnesses have already given sworn testimony in response to questions from opposing lawyers.) In his deposition, Proano had maintained that Niko had been choking Jackson's neck with his hands. Proano backed off that in the courtroom, saying he meant arms, not hands.
Jackson appeared distressed, Proano told Shapiro, maintaining that she said to Niko, "Who are you? Let me go. Get away from me." Proano said he then told Niko, "Let her go, dude."
When Niko didn't, Proano and two other officers—Lionel Piper and James Whigham—grabbed his arms and tried to pry him off her, Proano said. During this scrum, he wedged his arm between Niko and Jackson. That was when he felt the gun in Niko's waistband. "Gun!," he said he yelled three times, to alert the other officers.
Shapiro wondered why he didn't simply grab the gun away from Niko. "In a movie, that might work perfectly," Proano said with a sniff, "but in this case, I mean, it was a fast-case scenario." Niko's T-shirt was over the gun, he said, so he couldn't quite grab it—especially with the way Niko "was struggling with us, pushing us off."
Proano said he was also concerned about yanking the gun away with Jackson so close: "I didn't want this gun to go off on her back." Shapiro asked him how the gun could have gone off if no one fired it. Proano said that during a struggle, "all sorts of things can happen, as far as like it could catch on to his zipper or pull on his belt buckle, and, I mean, accidentally hit the trigger."
Proano said he didn't draw his own pistol after discovering that Niko had a gun because he was concentrating on trying to hold onto Niko's arms. He allowed that as far as he knew, none of the other officers drew their guns after he yelled "Gun!" either.
Shortly after he felt the pistol, Jackson got away from Niko, Proano said. Then, Proano said, he heard Officer Whigham yell "Taser!" He said he didn't see Whigham tase Niko, but soon after he heard "Taser!," Niko and the three officers went to the ground, the officers still hanging on to or grabbing at Niko's arms.
Niko ended up flat on his back on the pavement, Proano said. The officer told the jury he was crouched near Niko's left shoulder, and that Piper and Whigham were also crouched or kneeling next to Niko. But none of the officers could grab the gun out of Niko's waistband, Proano said, because he was thrashing "like a fish without water." The officers kept telling Husband to stop resisting, but he wouldn't. Proano maintained he didn't hear a word from Husband through the entire episode, just "grunting and growling."
Soon after Niko landed on his back, he pried himself up on his elbows, reached into his waistband, drew the gun, and aimed it at Piper, Proano told the jury. Piper grabbed the barrel of the gun and tried to push it away. Proano said that was when he drew his own gun and shot Niko three times in the chest.
Shapiro noted that Proano weighed 180 pounds, Whigham 240, and Piper 250. He wondered how the 135-pound teen had managed to pry himself up and draw a gun from his waistband with "670 pounds of police beef" on top of him. Proano said the officers weren't directly on top of Niko. He said he was crouching when he fired the first shot, and standing when he fired the second and third.
"Isn't it a fact that you never gave Niko a warning, just stood up and shot him dead?" Shapiro asked.
"It was a struggle," Proano said. "I didn't even have a chance to, sir."
"One of the shots you literally placed the muzzle against Niko's chest and point-blank fired, true?"
"As Niko was raising himself up, is that the part you're referring to? Yeah. My muzzle does make contact with it, yes, with his chest."
Wasn't it true, Shapiro asked, that "Officer Whigham dropped his Taser, but you thought he'd dropped his gun?"
Proano insisted he'd never said that. Shapiro read from Proano's deposition, in which he said it appeared to him at one point that Whigham was "looking for something on the ground . . . I thought he had dropped his gun or something." Proano conceded the point.
Shapiro zeroed in: "Isn't it a fact that at the point when Whigham dropped what you thought was his gun . . . you panicked, and you drew your own gun and shot Niko?"
"No, sir," Proano replied.
Brian Gainer handled most of the questioning of witnesses for the city. A former police officer, Gainer now works for Johnson & Bell, a private firm, and was retained by the city for the case. When he questioned Proano, he focused on the moment when Niko, according to Proano, drew his gun.
"When he pulled the gun out of his waistband and pointed it at Officer Piper, what did you think?"
"I thought Niko was going to kill Piper."
"Did you have time to say, 'Sir, please drop the gun'?" Gainer asked.
"No, sir. I had no time."
- Bobby Sims
Piper was a more effective witness for Proano than Proano was for himself. Like Whigham and most of the other officers, he's black. At the time of the shooting, he was with a unit that specialized in confiscating guns and had been on the force for 12 years.
On the trial's second day, Piper testified that when he and other officers were trying to get Niko to let go of Jackson, he heard an officer say "something to the effect that he's got a gun in his waistband." He didn't draw his own gun then because he was worried about Jackson's safety. He heard the crackle of a Taser, after which Niko crumpled to the ground. Piper went down with him, trying to hang on to Niko's right arm to keep him from reaching for the gun. While he, Niko, and the other officers were "rolling around on the ground fighting," he lost hold of Niko's right arm and grabbed his left.
Niko was "almost flat on his back," but kept "twisting, flailing," doing "everything he could to keep us from gaining control of him," Piper said. And then Niko got his right arm free, drew the gun, and "pointed it in my direction," Piper said.
Shapiro noted that in Piper's deposition, he'd said Niko was never able to point the gun at him, because he (Piper) kept pushing it away. Piper acknowledged that he'd said that. Then he grew emotional. "Once that gun came out, and he pointed it towards me . . . " Piper paused and bit his lip. His voice was trembling when he resumed: "I didn't see anything. I didn't care about anything. Because I was about to die. That's what happened."
Piper had also told an IPRA investigator a few hours after the shooting that he'd grabbed the barrel of the gun when Niko pointed it at him. When Shapiro asked him about that, Piper allowed that he never actually grabbed the gun until after Niko was shot. Then Piper got upset again. He pushed a palm against an eye, turned toward Judge Budzinski, and said faintly, "Sorry." The judge peered at a tissue box on a ledge at the front of her bench, but it was out of her reach. The court reporter rose from her seat near the witness stand, plucked a tissue from the box, and delivered it to Piper. Budzinski asked him if he needed a break. "No, I'll be all right," Piper said.
The prolonged moment was difficult not only for Piper but also for Shapiro, who knew the jury was soaking it in.
Piper told Shapiro he took the gun from Niko after Proano fired. He said he then stood up and checked to see if he was wounded, because he'd thought at first it had been Niko's gun he'd heard. Once he saw he hadn't been shot, he checked Niko's gun and found a bullet in its chamber, which he moved to the gun's magazine for safety. The magazine was otherwise empty, he said.
Officer Whigham testified that he drew his Taser instead of his gun because he didn't want to risk shooting Jackson or his fellow officers. He used the Taser in "drive-stun" mode, because he was too close to Niko for the conventional "probe" mode to be effective. (A Taser in probe mode can incapacitate a subject; drive-stun mode merely causes pain, but the pain stops some subjects from resisting.) He pressed the Taser against Niko's upper back, stunned him three or four times, then accidentally dropped the device. Niko fell to the ground.
Shapiro asked Whigham when Niko drew his gun. Whigham was uncertain. "I mean, it happened real quick," he said. "One second . . . I seen him standing, the next second, I saw him on the ground with a gun in his hand."
A few hours after the shooting, an IPRA investigator had asked Whigham if Niko went to the ground after the shots were fired, and Whigham had said yes. In the courtroom, Whigham said he made that statement to IPRA because "I was under duress that night." Gainer later helped him clarify for the jury that he didn't mean Niko was standing when he was shot—he meant Niko was propped up on his elbows, and went to the ground from that position.
The four officers who were near the shooting—but never saw Niko with a gun—each had an explanation as to why. Proano's partner, Robert Johnson, was close enough to the shooting that Niko's blood spattered his shirt. He didn't actually see the shooting, though, he told the jury, because he was facing the other way, focusing on crowd control. Officer Cory Junious, likewise, was busy with crowd control. (Estimates of the size of the crowd outside the club from the officers who testified varied widely: Proano and Piper said there were 100 to 200 people; Junious said there were "at least 20.") Officer Ryan Winfrey was occupied with Jackson, whom he handcuffed because he thought she might have been obstructing Niko's arrest. Winfrey allowed that he glanced toward Niko after he heard the gunfire, but said his view was blocked by other officers. Officer Bob Weatherly was so close to the shooting that Proano's gun flashed by his face right before he heard the shots. He didn't see Niko with a gun, but "once the shots rang out, I couldn't visualize anything because my hearing was distorted."
The police testimony was raising suspicions among jurors. Fred Morg, an electrician from south-suburban Alsip, would tell me later that he found it "completely believable" that the officers weren't able to quickly subdue Niko, even though there were more of them and they were bigger. Morg, who's white, has worked security at a nightclub, "and if somebody's wound up, nobody's able to grab them that fast." But he doubted that Proano would have yelled "Gun!" without any of the other officers drawing theirs. "They love to pull that damn gun, you know," he said. Betty Brugger, a black juror from Evanston, didn't believe the officers who said they couldn't see whether Niko had a gun because they were too busy with other things, or were looking the other way. Brugger, who was director of management systems at Northwestern University before she retired a couple of years ago, thought "anybody would have turned around" after they heard the shots to see what happened. "I could tell that they were lying," she said.
- Bobby Sims
- Officer Marco Proano put the gun he said police recovered from Niko in his waistband for safekeeping.
Shapiro's claim about a throw-down gun was bolstered by the curious account police gave of how the pistol made its way from the shooting scene to the mobile crime lab, which arrived about an hour after Niko was killed. The gun he allegedly pulled was safeguarded during that hour not by one of Proano's supervisors, as would be standard procedure, but by Proano himself.
Proano testified that he helped briefly with crowd control after the shooting, then headed over to Sergeant Orlando's police SUV, parked nearby on 80th Street. He said he intended to move it to the corner and put crime-scene tape around it to begin forming a barrier between the crime scene and the crowd.
Proano said the SUV was unlocked—and that the gun Niko had pointed at Piper was lying on the driver's seat.
He said he picked it up and shoved it in his waistband. "I was afraid somebody was going to break the windows and take that gun," Proano told the jury.
Shapiro asked him if, when he saw the gun, he thought of getting a pair of rubber gloves from a supervisor and putting the gun in an evidence bag, as department policy directs. Proano said department policy makes exceptions for "exigent circumstances"—and these were such circumstances. "You have to understand, there was still a large mob of crowd trying to attack us, sir," he told Shapiro.
"Did anybody attack you?"
"Thank goodness, no, sir."
Shapiro: "Now, you knew when you shoved it in your waistband that by doing so you were providing a possible explanation for why there would not be any forensic evidence found on the gun linking it to Niko Husband, true?"
"I'm not a forensic expert, sir, so I wouldn't know," Proano said.
He stayed in the car about an hour, until he was told to walk over to the mobile crime lab, where he handed the gun to the forensic investigators.
Sergeant Orlando testified later that he was inside the storefront when he heard gunshots. When he stepped outside, he saw Piper holding a gun. Piper "obviously was shaken," Orlando told the jury. "He was saying, 'He just pointed a gun at me.' " Orlando said he took the gun from Piper and brought it to his SUV.
Orlando said he might have retrieved rubber gloves before handling the gun "if the scene was a little more secure." But "there were people all over the place—running around, screaming."
He said he put the gun on the driver's seat of his vehicle. He then summoned Proano to stand by the car, and headed back to the crime scene to help set up the perimeter. When he returned to the SUV a few minutes later, he saw that Proano had the gun tucked in his waistband, he said. "I asked him why he was holding the gun, and he said the crowd started to gather . . . and he felt it was unsafe to leave it there." Orlando said he told him to hold on to the gun until forensics arrived.
Orlando acknowledged that he told an IPRA investigator that he'd locked the SUV after he put the gun in it. But that didn't concur with Proano's account of finding the vehicle unlocked. Orlando testified that he must have left the SUV unlocked. He told the jury that when he'd spoken with IPRA, "Obviously, I made a mistake."
"Sometimes the truth is messy. It’s not a movie. It’s not a novel. It’s not CSI. It’s real life."
—defense attorney Brian Gainer
On the trial's fourth day, Keoni Jackson took the stand. Niko was "like a brother," she told the jury. Jackson, now 21 and training to be a dialysis technician, said she'd lived a few blocks from Niko. They were friends, but not romantically involved, she said. He tutored her in algebra, and they were in a dance troupe together. The day of the dance, she'd retwisted his hair, and Niko had bought her lunch at a gyros stand in return.
She and a couple of her girlfriends went to the dance that evening. Niko came later. He called and told her he was coming, so she was near the front door when he arrived; she said she saw him get patted down by one of the security guards.
She and Niko danced together and "had the crowd's attention," she said. Jackson was plainly nervous on the stand, but she smiled at this memory. "We were going through some routines we did in the dance group." Niko took his shirt off because he was sweating, so she had a clear view of his waistband. Shapiro asked her if he had a gun there.
When the police shut down the party, she walked out the door, but not with Niko. She saw the officers doing the pat downs. Then she remembered that she'd left her keys inside, and went back in to get them. Niko saw her, and teased her. "He was like, 'Did you lose anything else? Are you sure?' " And then "he just wrapped his arms around me," and they walked out the door.
His arms were on her shoulders, and her hands were resting on his arms, she told the jury. "He was not holding me hostage, he was not choking me."
"Did you ever look up at Niko and say, 'Who are you?' " Shapiro asked.
"No!" Jackson nearly shouted. "I know who Niko is."
She said an unmarked Tahoe pulled up out front, and two black officers in plainclothes stepped out and signaled to the officers already doing the pat downs "to grab Niko and me." Officers seized Niko's arms, and both she and Niko were thrown against the window of the storefront. Shapiro asked her if Niko was refusing to cooperate. "Absolutely not," she said. "I don't know where they got that from."
Officers pushed her to the ground, she said. She heard an officer threaten to tase Niko, and then she heard Niko scream. His arms were behind his back, and it looked to her like he'd been handcuffed. She was trying to get up off the ground when she heard the gunshots—two of them, a pause, then a third. She didn't see who shot Niko. The officers who had been holding his arms when he was shot then laid him down on his back.
Shapiro asked her if Niko had pulled a gun. "Never," Jackson said. "He did not pull out a gun at all."
Soon after Niko was shot, one officer got her off the ground and "handed me off to a female police officer," who handcuffed her. She was led to a nearby police Tahoe, where she said they kept her, handcuffed, until 5 AM. (The city later recalled Officer Winfrey in rebuttal; he said Jackson was handcuffed for only a few minutes.)
The pause Jackson described between the second and third shots was important, because it fit Shapiro's assertion that Proano had shot Husband twice, then had maliciously put the muzzle of his gun against Niko's chest for the final shot. So on his cross-examination, Gainer, the city's lawyer, pressed Jackson on how long the gap had been. "A minute," Jackson said. "A few seconds. It could have been 30 seconds. I couldn't tell you exactly . . . maybe 20 seconds."
On redirect, Shapiro tried to help Jackson clear that up. "I'm going to show you what 20 seconds would be," he said. Standing in the center of the courtroom, he crooked his arm in front of him and stared at his wristwatch. "So let's go—boom, boom!" The courtroom was eerily silent for the next 20 seconds. "And, boom. Was it something like that?"
Jackson was obviously supposed to say no, it wasn't nearly that long; even Shapiro didn't believe that Proano had shot Niko twice, then a full 20 seconds later had put his gun against Niko's chest and shot him again. But Jackson said yes. At the lawyers' table, Gainer couldn't suppress a grin. Later, Shapiro told me with a shrug: "You give them a big softball to hit out of the park, and sometimes they whiff."
Jackson also told Gainer that Niko was standing when the first two shots were fired, but could have been on the ground when she heard the third shot. Gainer reminded her of her deposition testimony, in which she said Husband was standing when she heard all three shots. Jackson conceded that she wasn't really sure.
She also allowed that she did say "Get off me, let me go," during the incident "but it wasn't to Niko. I was saying it to the police officers who were grabbing me."
And she acknowledged that when a detective questioned her in the SUV right after Niko was shot, she didn't tell the officer how appallingly police had acted, as she later told the jury.
Gainer: "You had just witnessed a friend who was like a brother get shot and manhandled by multiple police officers, while handcuffed behind his back. You're speaking to a detective about what happened—and you didn't say what you saw?"
No, Jackson said, she didn't.
Something else Jackson said on the stand hurt Shapiro's claim about a throw-down gun. She said that while she was still near the storefront after the shooting, she saw an officer holding a gun that he said he'd recovered. "And that gun was silver?" Gainer asked. "Correct."
Gainer was occasionally sarcastic in his questioning of Jackson, and Betty Brugger, the juror from Evanston, didn't appreciate it. "I didn't like how he grilled her," she said after the trial. "Niko was her friend, so she might have been exaggerating. But she was 16 at the time, and it was four years ago. I thought the questioning wasn't respectful."
Shapiro called one other friend of Niko's, 22-year-old Donovan Moore. He said he'd witnessed the shooting from down the street. He'd seen two or three white officers tasing Niko, and then an officer in a white uniform shirt shooting him. No one else, Jackson included, had seen that. (Proano, working in plainclothes, had been wearing a T-shirt and vest.) Shapiro had considered putting on other civilian witnesses he'd interviewed, but their stories kept shifting. He realized that if he were going to win the case, it wouldn't be on the strength of the civilian eyewitnesses, but on the shortcomings he could highlight in the police testimony.
- Bobby Sims
The only neutral witness in the trial was Dr. Mitra Kalelkar, the forensic pathologist who did Niko's autopsy. Price and Mark Husband left the room before she began testifying.
Kalelkar told the jury that the bullets perforated Niko's aorta and right lung, and fractured his sternum and trachea. The injuries caused by any of the three would have been fatal, she said.
Shapiro asked her if Niko lived briefly after he was shot. Damages can be awarded for a victim's suffering from the moment he's injured until his death. Kalelkar said Niko aspirated blood into his lungs, which indicated he'd taken some breaths. On cross-examination, Green, the assistant corporation counsel, sought to stress the brevity of this period: "He actually only lived for a breath or two—isn't that correct?" Kalelkar: "Maybe two or three or four—enough to bring blood down into his lungs."
The toxicology test showed that Niko had no alcohol, opiates, or cocaine in his system, Kalelkar said.
Two of the entrance wounds were near each other on the right half of his chest. The third wound, on the left half of the chest, had bloody, blackened margins, indicating that it was a contact wound: "The muzzle of the gun was touching the skin as it was being fired." She couldn't determine the order in which the wounds were sustained, or what position Husband was in when he was shot, or whether his body was in motion.
On a projection screen facing the jury, Shapiro displayed an autopsy photo of Niko's body from the waist down, as it was clothed when it arrived at the morgue: in loose-fitting jeans sagging well below the waist. Kalelkar said on cross that she didn't know the position of the jeans when Niko was shot. But the photo made an impression on jurors, both Morg and Brugger told me: they wondered how a gun could have stayed in the waistband of such saggy jeans during Niko's scuffle with police.
In addition to neutral experts such as Kalelkar, civil trials often feature dueling, well-paid expert witnesses, and this trial was no exception.
Shapiro's expert, Brookfield, Wisconsin-based Dennis Waller, had held a variety of positions in small police departments, from officer to chief, in a 20-year law enforcement career. In 1992 he founded Waller & Associates, a firm that consults on police-related litigation. Shapiro had retained him to review records and depositions and offer his opinions, for which he had thus far made $20,000.
Waller said Proano and his fellow officers didn't have the right to pat down Husband as he left the party, because his clothes didn't match the description of the man with the AK-47, and because such rifles are far too big to conceal on a person, especially one in summer clothing.
He doubted that Proano had ever yelled "Gun!"—if he had, the other officers would have drawn theirs, he said. He found it incredible that an officer would respond to such a warning with a Taser. "You don't take a Taser to a gunfight," he told the jury.
Proano's purported handling of the gun he claimed Niko drew was also suspect, he said. "If indeed he [Niko] had the gun, I wouldn't want to contaminate it with my biological material" the way Proano had when he shoved the pistol into his waistband. Waller said he couldn't imagine officers "doing anything more to cover up or contaminate evidence" than the officers had done in this case.
If Husband had a gun in his waistband to begin with, Waller said, it likely would have fallen out or slipped down a pants leg as he wrestled with police. Officers are trained to keep their own guns holstered because of how guns in waistbands slip, he said.
Proano sat impassively through most of the trial, but he scowled at times as Waller testified.
The defense's expert, Aaron Brudenell, had worked for five crime labs, had a background in chemistry, and specialized in shooting-incident reconstruction. The cost to the city for his work had been $60,000 to date, he acknowledged.
Brudenell noted that not all AK-47s are large: if the stock is removed or the weapon cut down, the rifle could possibly fit in a purse, he said.
He'd visited the scene of the shooting, photographed and analyzed the pavement, studied the autopsy report, considered the condition of the recovered bullets, and concluded that the contact shot was likely the first one fired. Niko was probably "seated up slightly" when that bullet struck him; the other two shots were likely fired as he fell from that position. This corroborated the city's and Proano's version of the shooting.
- Bobby Sims
The testimony of Niko's mother was short and mournful. Price's eyes were vacant, her voice hollow. She pulled tissues from the box on the witness stand in front of her. Shapiro's partner, Matt Basinger, had to strain to get responses to the requisite questions. What did she like doing with Niko? "Taking him shopping, buying him clothes." Did he help out around the house? "He did." Was he affectionate? "Yes. He'll hug me, give me a kiss." How often? "Mostly every day."
She saw him a few hours before the dance. "I bought him some Burger King, and he came home and got the Burger King." She called him shortly after midnight. "He said he was at a party." Her voice cracked as she added, "He said, 'Mom, I will call you back.' "
"Was that the last time you ever spoke to him?" Basinger asked.
"Last time," Price murmured.
She said that when she and her daughter visit his grave in the Mount Hope cemetery in Morgan Park, "We pray and we talk with Niko, and just have a conversation, and tell him we love him and miss him."
Since Niko died, she's had trouble eating and sleeping, she said, and she's started smoking. She's missed some work, and she'd started seeing a therapist.
Basinger asked her what about Niko she missed most. "I miss his smile. I miss him saying he love me, and saying it to him. I miss giving him a hug and a kiss."
Mark Husband also testified briefly, telling the jury how much he missed his son.
Niko's felony record constrained Shapiro's ability to build a case for the extent of the loss caused by his death. Shapiro could touch lightly on Niko's attributes with his parents, but if he pushed for more from them about his virtues, or if he put on, say, a teacher or a pastor to extol Niko's character, the city could argue that it ought to be able to rebut such claims with his criminal record. This in turn would likely limit the damages the jury would award if they found for the plaintiff. It may have been one of the reasons the city was willing to roll the dice on a trial.
On the night in question, "a group of African-American teens were having fun," Shapiro told the jury in his closing argument—until some police officers, acting as "stormtroopers" provoked the fatal episode. They could have acted more respectfully, he said, but "that's not the way that they treat the kids in this neighborhood."
He scoffed at the defense's account of the shooting. Wouldn't the other officers draw their own guns after Proano yelled "Gun!"? Why did only three of seven officers see Niko with a gun? How could Niko possibly have drawn a pistol if three much larger officers had him on the ground? "What, was Niko the world's strongest 135-pound kid?"
Shapiro noted that the negative toxicology result showed that Niko wasn't "hyped up on drugs." Would he really pull a gun on a bunch of officers? Shapiro wondered aloud. A gun loaded with a single bullet?
About Jackson's testimony, he said: "We really got to give this girl some slack. Her friend Niko was blown away right in front of her eyes. Have a few details gotten fuzzy? Sure. Did she get nervous and intimidated by Mr. Gainer? Sure." But she was consistent about what mattered, Shapiro maintained: that Niko was hugging her as they left the dance, not choking her-and that he didn't have a gun.
When Whigham dropped his Taser and Proano thought it was Whigham's gun, it may have "spooked Proano," Shapiro said. So he shot Niko-"once, twice, and then the third time, with the gun right up against Niko's chest."
Shapiro observed that Piper's work on a gun team gave him access to untraceable weapons. "You don't think he carried a throw-down gun for use in situations like this?"
If police had really recovered a gun from Niko, they'd have treated it "like a supercrucial piece of evidence," Shapiro said, instead of the way they'd handled it. "Can I prove it's a throw-down gun beyond a reasonable doubt? No. But is it more probably true than not? You bet it is."
Most telling, he said, was the city's failure to test the swabs taken from the gun to see if Niko's DNA had been on it. "That's an absolute clincher," Shapiro said. "They knew his DNA wasn't gonna be on the gun-because they knew it wasn't his gun!"
He turned to the subject of damages. Niko had "his whole life ahead of him," Shapiro said—and then suddenly it was taken from him by a "trigger-happy police officer." Now jurors had the chance to "balance the scales." By awarding damages to Niko's survivors, Shapiro said, "you will do justice to the concept that all lives matter."
He said Price was a woman of few words, but it was clear she loved Niko deeply. "What are you gonna tell her about the value of her son?"
He suggested $10 million for the "loss of society" to Niko's family, and $5 million for their "grief and sorrow." A family's grief "doesn't end when the casket goes in the ground," he observed.
Niko's own pain and suffering also merited damages, he said. He reminded the jury that the teen didn't die until the blood he aspirated into his lungs "choked him to death." He didn't put a dollar figure on Niko's pain and suffering, but asked the jurors what they'd tell the youth was "full and fair compensation" if he were "standing here before you."
"Do what you think is just," Shapiro concluded, "but let justice be done."
Shapiro returned to his seat next to Price, and Gainer, buttoning his suit coat, stepped to the podium. "Any death is a tragedy," he told the jury. But the plaintiff shouldn't win merely because "Niko Husband's family is sad," he said. "It's OK to be sympathetic. But it's not OK to base your verdict on sympathy.
"This case is about that moment when Niko Husband's gun was pointed at Lionel Piper," Gainer said. "It's about the decisions that Niko Husband made . . . that forced Marco Proano to use deadly force to save Lionel Piper's life."
Moments after admonishing jurors not to decide the case based on sympathy, Gainer reminded them of how Piper told them "with tears in his eyes that he thought he was gonna die." Piper "could not have been more honest and forthright on the stand, including his emotion."
The reason some of the officers didn't see Niko with a gun was simple, he said: "People have different vantage points. That's how life works. It would be a thousand times more suspicious if every police officer came in here and told you exactly the same thing. Sometimes the truth is messy. It's not a movie. It's not a novel. It's not CSI. It's real life."
He ridiculed the plaintiff's theory that police conspired to hide a bad shooting. "Think about the scope of this conspiracy, how vast it had to be," he said. One of the officers at the scene would have had to have been carrying an extra gun "every day, just in case they needed it . . . and then spring into action in seconds to get that gun where it needs to be."
He dismissed what he called Jackson's "made-up" testimony—with one exception: her account of seeing an officer holding a silver gun at the scene after Niko was shot. That "major slipup" corroborated Piper's account.
With a hostile crowd nearby, of course Proano wanted Niko's gun as close to him as possible after the shooting, Gainer said. "What's more secure . . . than having it on your person?"
The fact that the city didn't test to see if Niko's DNA was on the gun "goes both ways," he said: the plaintiff didn't test, either, and so didn't offer any evidence "to exclude Niko Husband from that gun."
Gainer returned to Piper's poignant testimony a couple of times, lest the jurors forget it. "I saw what you saw," he said. "He was not acting. By day two of this trial, you know that this shooting was justified."
The "willful and wanton conduct" requirement for a verdict against Proano meant he wasn't liable if he simply made a mistake, Gainer said, or "if he didn't yell 'Gun!' loud enough," or if he shouldn't have put Niko's pistol in his waistband. "He's only liable if you think he intended to hurt Niko Husband without legal justification." Proano "didn't fire 16 times, he didn't fire 13 times," Gainer reminded the jury. "He fired three times."
It was easy to sit in the "safety of this courtroom" and "pick apart" the decisions the officers made on a summer night four years ago, Gainer said. But the bottom line was that "Proano acted quickly and did what he had to do."
In his rebuttal, Shapiro said the shooting was indeed traumatic for Piper—not because Niko almost killed him, but because Proano almost did. He reminded the jury that Piper said he was leaning over Niko right before Proano fired. "You bet he saw his life pass before his eyes, but it wasn't because of anything Niko Husband did."
Shapiro had spent seven days telling the story of an unarmed victim. But there was a less sympathetic story he knew he must also offer, which he did at this point.
"I'm not going to pretend that you haven't heard evidence that Niko Husband had a gun," he said. "Is it possible that Niko Husband had a gun in his pants that the cops saw? Is it possible that when they threw him to the ground, that gun fell out? Even if you think, 'Well, maybe he did have a gun,' that doesn't make it a justified shooting." The fundamental issue wasn't whether he had a gun, Shapiro said—it was whether he drew it and pointed it "such that Proano needed to shoot."
After Shapiro sat down, Judge Budzinski read the jury their instructions. Then she said she had to do "the worst part of my job"—excusing the alternate. (One juror had been dismissed a few days earlier for airing her views on the case prematurely, so only one alternate remained.) Alternates are the last ones picked before the trial, but to make sure they remain engaged, the judge and the lawyers don't make it clear to the jurors who's an alternate and who's a regular juror.
Budzinski announced that Betty Brugger was the alternate, and excused her. Brugger was disappointed, and the handful of friends and family members of Niko's in the courtroom were clearly dismayed. They liked their chances better with three black jurors, one of them told me later, and now they were down to two.
- Bobby Sims
This was a Friday, and none of the jurors were thrilled about the prospect of returning the following week to finish deliberations, so they began immediately, over lunch. Morg, the electrician, was chosen as foreperson. "Nobody else wanted the job," he said later. "I'm a foreman at work all day, so I'm used to it."
Morg, 45, sings and plays guitar in a metal band in his free time. His electrical work often takes him to the south and west sides, so he was familiar with the neighborhood in which the shooting had taken place. When lawyers were selecting the jury, he'd informed them that his cousin was a Chicago police detective, so Morg was stunned that he'd been picked.
Early in their deliberations, the jurors discussed whether they thought Niko really had a gun. Morg himself was uncertain. He doubted Sergeant Orlando's account. "If the crowd was that hostile, nobody's throwing a gun on a seat of an unlocked car and walking away." He was troubled that Orlando initially said he locked the car, then changed his story after Proano said the car had been unlocked. "It had the feeling of somebody stepping up and getting rid of a problem after a mess."
Morg also believed that if Niko was carrying a gun, he had no intention of using it. He thought the officers could have separated Niko and Jackson without starting a confrontation. "It sounded like they put hands on him without really trying to talk sense into him," he told me. "Understood, they're in a tough area. But you're going to have more problems if you don't try to talk with people like humans. Keeping the peace is still the best way to get it done."
Morg's fellow jurors were even more skeptical about the accounts of the police witnesses. He said most of them thought Niko didn't have a gun.
After about an hour and a half, one of the jurors suggested they take a vote to see where they stood.
Besides verdict forms, the jury had been given two "special interrogatories" to answer.
Special interrogatories are often submitted to civil juries to try to ensure that their reasoning has been sound. Illinois law, like that of most states, allows either party to ask a few such questions, but they're usually asked by the defense (as they were in this case). If there's a conflict between a jury's answer to a special interrogatory and its verdict, the verdict is negated. The Illinois Appellate Court observed in 2007 that special interrogatories "provide the defendant with a 'magic bullet' that he can use to upset the verdict against him." Plaintiff lawyers have argued in vain for the elimination of these questions.
As is standard procedure, Judge Budzinski had not told the jury what impact the special interrogatories could have on the verdict. Morg thought they were worksheets meant to help the jury with its deliberations. "They almost seemed insulting," he told me, "like, 'Are you saying that we're not really going to talk about this?' " He proposed that the jury begin by voting on the second interrogatory, because it was more "succinct" than the first one. The second interrogatory asked:
Was Officer Proano's conduct in shooting Niko Husband willful and wanton?
Morg read to the jurors the definition they'd been given by Judge Budzinski for "willful and wanton": "A course of action which shows actual or deliberate intention to harm, without legal justification."
Morg said he and other jurors believed that Niko was either flat on his back or almost so when Proano shot him. That, combined with the fact that one of the wounds was a contact wound, made the shooting seem willful and wanton to the jurors who believed Niko was unarmed, Morg said—and even to Morg, who was unsure about whether Niko had a gun. Very quickly, the jury voted "yes" unanimously.
That quickly led the jury to undivided agreement on the fundamental issue: they were finding for the plaintiff.
They then set about calculating damages. The written instructions for this step were murky and complicated. The jury was to decide how much money would fairly compensate Niko's next of kin for the "pecuniary loss" resulting from his death. "Pecuniary loss" could include the "grief, sorrow, and mental suffering" of the next of kin, and the "loss of money, benefits, goods, services, and society." "Society" included "love, affection, care, attention, companionship, comfort, guidance, and protection." The instructions directed the jury to consider the age and sex of the defendant and his life expectancy. A 19-year-old male had a life expectancy, on average, of 59 additional years, the instructions said. The jury also had to determine how much money would fairly compensate Niko's estate for the pain and suffering he'd suffered from the time he was shot until he died.
Morg was surprised there wasn't any guidance on how to translate all these factors to dollar amounts. Since he was an electrician, the jurors asked him how much an electrical engineer would make annually; he said about $70,000. On a chalkboard, another juror multiplied $70,000 by 40 years of work, which came to $2.8 million. Morg thought this was an overly generous way to calculate damages. And the $2.8 million was just for Husband's potential future earnings; it didn't include damages for the family's "grief, sorrow, and mental suffering," or compensation for Niko's pain and suffering.
The jury agreed on $500,000 for the latter. Morg went along, even though he thought that was a little high: "I don't want to sound like a bad guy, but they're saying he was dead within seconds," he told me.
Morg said that during deliberations, "I kept saying, 'We do have to be responsible with taxpayers' money. We don't have a black-and-white case here. We have no way of being sure if he had a gun or not. Don't you think this is an exceedingly high amount of money?' "
He asked the jurors to each write down a total amount of damages they thought would be fair. Their folded scraps of paper went into a candy dish. Morg had intended that the jury would then continue its discussions, but once the candy dish was full, everyone was eager to get on with calculating the damages. He yielded to that idea, but suggested that the highest and lowest suggestions be eliminated and the others averaged. His fellow jurors agreed. The highest proposal, $5.7 million, and the lowest, $500,000, were removed; the others averaged out to $3.5 million.
After that, it was just a matter of what numbers to put where on the verdict form. The $500,000 went on the line for Niko's pain and suffering. Morg proposed that the jury divide the other $3 million into $1.2 million for "grief, sorrow, and mental suffering," and $1.8 million for "loss of society."
Having calculated damages, the jury returned to the first interrogatory:
When Officer Proano shot Niko Husband, did Officer Marco Proano reasonably believe that Niko Husband's actions placed him or his fellow officers in imminent threat of death or serious bodily harm?
This one perplexed the jury. "I swear I read that thing back to everybody 15 times," Morg told me. No one was sure what it meant or whether it would affect the verdict. The jury voted 11-1 to answer the question "yes"—but, according to Morg, that was because Niko had "resisted arrest and caused a big struggle," not because the jury thought Proano was justified in shooting him.
Someone suggested that Morg ask the judge for clarification regarding the question. Morg's subsequent note to Judge Budzinski said the jury had unanimously agreed that Proano's conduct had been willful and wanton. "However, what is the purpose of Interrogatory 1 with regard to the verdict, damages, and jury decision?" he asked. "Can it in any way reverse the jury's verdict?"
And he added in his note: "Hypothetically, what would occur if Interrogatory 1 cannot be decided unanimously?"
Judges are reluctant to offer a jury guidance in response to questions during deliberations, lest they tilt it one way or another. After consulting with the lawyers for both sides, Budzinski responded with this note: "We cannot tell you the affect of your answer to the Interrogatory 1 on the verdict. You must answer the interrogatory and your answer must be unanimous. If you are unable to reach a unanimous answer to Interrogatory 1, please let us know."
After the jurors got the judge's response, they continued discussing the meaning and impact of the question. Morg told the jury he thought it was getting at whether Proano felt he'd been in danger. He speculated that a "yes" answer might slightly discount the damages the plaintiff received.
The lone "no" vote on the question was from one of the remaining two black jurors, a woman. According to Morg, "She was talking about how we didn't understand how white people treat black people." Morg reminded her that most of the officers who'd testified had been black. And the other black juror, a man, also pressed the woman to reconsider, Morg said. "He told her, 'I don't think you're going to find a jury this liberal again,' " and that if the jury deadlocked on the interrogatory and the case had to be retried, the defense would probably prevail next time. It was getting late and some of the jurors were growing restless. The black woman switched to "yes" on the first special interrogatory.
- Bobby Sims
Just after 8:30 PM, the jury returned to the courtroom. Morg handed the verdict and the findings on the interrogatories to the deputy, who brought them to Judge Budzinski. She read the results to the parties, then thanked the jurors for their service. The courtroom deputy ushered them back to the jury room, and they began gathering their things.
Budzinski visited the room a few minutes later, and she brought startling news. The jury's finding on the first interrogatory nullified its verdict for the plaintiff. Price and her family would get nothing.
The stunned jurors sat in dead silence initially, Morg said. He recalled silently mouthing "sorry" to the black woman he'd helped convince to change her vote.
Morg said the judge explained that the jury's conclusion that Proano's fear was reasonable made the shooting justified. "I said right away, 'That's not fair—we understand what a justified shooting is.' "
Budzinski went on to tell the jury that although it was inadmissible at trial, Niko had two convictions for gun offenses. This seemed to relieve the jurors, Morg said. But then she informed the jurors of Proano's 2013 shooting.
When Morg left the jury room, "I was hot, because I felt like I was tricked." He was especially upset because the juror who'd changed her vote on the interrogatory had done so under the assumption that it wouldn't affect the verdict—and he'd helped persuade her of that. Morg said she reassured him before they left the jury room that the confusion over the interrogatory wasn't his fault. (I wasn't able to reach this juror.)
Morg was still fuming as he rode the elevator down with some of the other jurors. When they stepped out at the first floor, he stayed on and punched the "20" button. "What are you doing?" one of the jurors asked him. Morg said he thought he owed the plaintiff an explanation.
In the hallway outside the courtroom, he told Shapiro that the jury hadn't intended the result. Shapiro said he realized that. Morg also told the lawyer, "It's bullshit, because it's not clear. It all gets wiped away because of a misunderstood question."
Morg was reluctant to talk directly with Price, but she and her family were near Shapiro, "and I kind of half made eye contact" with her, "and I said, 'I'm really sorry.' " Price thanked him for saying that. She told me later she appreciated Morg's gesture.
Morg's ire grew on his way home. On the Orange Line, he did a Google search for Proano, and found the video of his 2013 shooting. He was shocked that Proano had fired repeatedly into the car. Morg thought about how angry the woman who switched her vote would be when she saw the video. He thought of the relationship between Proano's shooting of Niko and this shooting two years later. "You can go two routes after something traumatic like that happens, where you shoot a kid [Niko] point-blank. You either become the last one in a group to pull your gun, or now you're a wild cowboy. He's the wild cowboy to me."
On November 30, three weeks after Judge Budzinski entered judgment in favor of Proano and the city, Shapiro filed a motion asking her to reverse herself, enter judgment for Price, and award her the $3.5 million.
Shapiro's brief in support of his motion pointed to case law holding that unless a jury's answer to a special interrogatory is "absolutely irreconcilable" with its verdict, the verdict prevails. While the first special interrogatory asked if Proano reasonably believed there was an imminent threat of death or serious bodily harm, it failed to ask whether deadly force was necessary to answer that threat, Shapiro argued. The jury could have believed that Niko's flailing and wrestling endangered officers, but that police could have responded by simply restraining and handcuffing him. Or, Shapiro wrote, the jury may have concluded that Husband created a threat by having a gun in his waistband, but that the officers could have grabbed it away from him; or, it might have decided that Husband had a gun that fell out of his waistband during the struggle, and police should have grabbed it or kicked it away.
Shapiro noted that in the other special interrogatory, the jury had found the shooting to be willful and wanton—which had been defined for the jury as a course of action showing an intention to harm "without legal justification." Thus the jury had specifically found Proano's use of deadly force was unjustified, Shapiro maintained.
In support of the motion, Shapiro filed affidavits from Morg and two other jurors. All three jurors said that at the time they rendered their verdict, they didn't believe Niko had a gun on him during the incident. They said they'd answered "yes" to the first special interrogatory because they thought that Proano believed Niko's actions in resisting arrest put him in danger of serious bodily harm. But they said they didn't think Proano "reasonably" believed deadly force was necessary to prevent that harm, and that they thought he and his fellow officers could have eliminated the threat by restraining Niko.
Shapiro acknowledged in his brief that juror affidavits can't be used to directly challenge a verdict. He said he was offering the affidavits to show that the wording of the first special interrogatory allowed for interpretations in which the "yes" answer was consistent with the jury's verdict in favor of the plaintiff.
The city responded in its own brief that Shapiro had failed to object to the first special interrogatory when the city proposed it in a jury-instruction conference during the trial, and asserted that Price had thus waived her right to raise the issue posttrial. (In a reply brief, Shapiro contended that case law clearly held that this was an issue that could not be waived.)
The city said the affidavits from the jurors were "wholly improper." Illinois case law firmly prohibits the use of juror affidavits to impeach a verdict, the city said, because their use could lead to "harassment, bribery and imposition of undue influence" upon jurors after a trial.
It would be especially unfair to consider such affidavits in the "current political climate," the city's lawyers said. They pointed to the torrent of media coverage of the Laquan McDonald killing, after the Proano trial concluded on November 6 but before the affidavits were submitted. The city accused the plaintiff of exploiting the "state of unrest" in Chicago and the "nationwide denigration of Chicago police officers" by persuading the three jurors to submit the affidavits.
There was, of course, another video that may have biased the jurors who signed affidavits more than the McDonald video: the one showing Proano shooting into the car full of teens in 2013. The city didn't mention that video in its brief.
Budzinski will rule on Shapiro's posttrial motion on March 16. Whoever loses will probably appeal, and it could be years before that appeal is decided.
The judge's canceling of the jury's verdict baffled Price. "I didn't understand it," she said a week after that decision. "I still really don't too much understand it. I'm glad the jury was in my favor, though." She said she hopes the judge's ruling will ultimately be overturned, "and that way I will have justice for Niko."
I asked Mark Husband if he thought he learned from the trial what exactly happened between police and Niko on that July night in 2011. "Not really," he said. "Just that they didn't have to kill him."
Like Price, he's hopeful that the judge's decision will eventually be reversed. But the way the jury's verdict was wiped out has left him feeling that the game is rigged. "It seems like everything's tilted in the favor of the city," he said. "It's like they know they're gonna win. Where's justice for the people? That's all I want to know." v
Manny Ramos helped research this story.