12/06/2012 05:11 pm ET Updated Feb 05, 2013

Chicago's 'Code of Silence' Case Has Legal System Bidding Against Itself

Quite recently, a Chicago federal jury decided a case against the City of Chicago in the beating of a female bartender by an off-duty Chicago police officer. As reported in the Chicago papers, the woman was awarded $850,000.00 from the city besides it having to pay fees to her lawyers per what the law allows. Despite the trial and verdict, she now joins the city in a jointly filed motion, requesting the federal court judge who presided over the case to toss out the verdict as if it never existed, in return for the city paying her promptly what the jury awarded as well as the fees to her lawyers. Using this approach, the injured woman receives her money, does not risk the chance of having the jury's verdict reversed on appeal, and the city escapes having to contend with a prior legal case (called "precedent" in legal circles) in which its police department's "code of silence" asserted to have protected the offending police officer in the case is forever erased from courthouse records. While both sides' request is still pending, it does not pit one against the other as in the actual trial; they are pitting the legal system against itself and against the public's right to have a jury's verdict stand -- again, as lasting legal precedent.

To be sure, there is debate over this tactic throughout courts in the country. It calls into question the role of our judiciary, judicial economy, integrity of the court system, and whether a court should be used as merely a "tool" in the arsenal of tactics to be employed by a party (ies) that do not like how a judge or jury has decided the merits of a case. The appeals court covering the federal trial-level courts in Chicago is known as the Seventh Circuit United States Court of Appeals (Seventh Circuit for short) and it weighed in on the subject nearly 25 years ago. The case is Memorial Hospital of Iowa County, Inc. (Memorial Hospital), decided in 1988.

In Memorial Hospital, the parties went before the Seventh Circuit in an appeal of their case, arguing that because they had settled their differences while the case was on appeal, the appeals court should not only dismiss the appeal, but also vacate the decisions made in the trial court from which the appeal arose. As of that time, the Seventh Circuit denied such requests, for as noted jurist Frank Easterbrook writing for the Seventh Circuit in this case stated, "We always deny these motions to the extent they ask us to annul the district [trial] court acts, on the ground that an opinion is a public act of the government, which may not be expunged by private agreement. History cannot be rewritten. There is no common law writ of erasure." Easterbrook went on to opine, "When a clash between genuine adversaries produces a precedent, however, the judicial system ought not to allow the social value of that precedent, created at a cost to the public and other litigants, to be a bargaining chip in the process of settlement. The precedent, a public act of a public official, is not the parties' property...The interests of litigants, in general, however, lie with the orderly operation of a system of justice, one in which conclusions of litigation are recorded and thus preserved for the future..." That case remains precedent in the Seventh Circuit and its lower court district (trial) courts.

Fast-forward to 2012 and the code of silence verdict. Both the woman who sued the city and the city itself want the district court judge to wash away the verdict as if it never existed, including any issue relating to whether or not there exists, or had existed, what was called the code of silence among Chicago's finest. But, our legal system is the last vestige or outpost for deciding disputes and differences between or among "combatants." If after weeks or months are spent at trial with jurors of our peers deciding a case -- not to mention the months spent in court with all sorts of pre-trial motions, requests and legal maneuvering -- for one or more parties to a case to then ask a court to do away with an unsatisfactory result is to ask the legal system to bid against itself and to pit itself against the public's right to know and rely about a legal result, here, a jury's verdict. As Judge Easterbrook wrote, legal outcomes cannot be used as bargaining chips to be done away with by private agreement between adversaries in a lawsuit. This would be no different, for example, than if a judge issued a ruling allowing a lawsuit to proceed, but before trial, the case is settled with one party asking as part of the settlement agreement that the judge's earlier ruling allowing the lawsuit to proceed be vacated [because it might create bad precedent for future cases in which that party ever becomes involved]. No legal system and its representative courts should be made a pawn at the whim of the parties as part of some grand design, and certainly no system where the taxpayers foot the bill for its existence. Parties to a lawsuit voluntarily chose to use the legal process and should not be able to do away with its outcomes. As Easterbrook recognized in Memorial Hospital, "judicial decisions are not merely the private property of private litigants and should stand unless a court concludes the public interest would be served by [vacating decisions]" and, "The independence of the judiciary would be compromised if courts routinely struck their own decisions because the parties involved were displeased with the final outcome."

In the code of silence case, who knows whether it still exists or whether it will ever be found to exist in the future. But private litigants have no basis to force a court to abandon its role and efforts -- including a jury's verdict -- once the system of which it is the face produces an outcome the parties do not like or do not want to exist as precedent in the law books. They also cannot cry foul and have erased an outcome produced by a system that taxpayer money has financed and continues to support. Taxpayers -- the public at large -- also have a right to rely upon legal outcomes that surely will govern future behavior in which that very public has an everlasting interest.