Mimesis Law
20 November 2019

Chicago Justice: The Shooting Death of Darius Pinex

Jan. 11, 2016 (Mimesis Law) — Oh Chicago.  You might be America’s second city, but you are currently at the forefront of the raging debate over the future of criminal justice and policing.  The fallout from the release of the Laquan MacDonald video has seen the old standard arguments of a few bad apples and criticism of the police as tantamount to treason beaten back as quickly as they were delivered.  In the midst of the upheaval, there is a case that may not have what seems like clear murder captured on video, but it has everything else.  This is the case of Darius Pinex.

The Shooting

On January 6, 2011, two Chicago police officers, Raoul Mosqueda  and Gildardo Sierra were on routine patrol in a marked police vehicle.  Around 10 p.m. that evening, radio transmissions alerted them that officers were chasing a black Oldsmobile Aurora with rims and a temporary license plate reading 378 M 393.  The chasing officers broke off their pursuit, telling dispatch that because of the “way he was driving and the amount of shootings in the area, we are going to assume there is a weapon in the car.”

Approximately 3½ hours later, Officers Mosqueda and Sierra pulled over an Oldsmobile Aurora with temporary plates because they thought it was the car involved in the earlier dispatch. This car was driven by Darius Pinex.  Both officers would later testify, repeatedly, that they were on “high-risk” alert during this traffic stop because of the information they had received over the radio about this vehicle’s connection to a shooting.  However, neither officer called in the stop, ran the plates (the plates on Pinex’s car were 337 M 648) or called for backup.

The most likely reason for their failure to do any of the things an officer on “high-risk” alert would do in a similar situation was because they were not, in fact, on high alert. Allow me to explain.  The Chicago Police Department separates its radio communications into zones.  Mosqueda and Sierra were operating in Zone 6 on January 6.  The call that went out notifying officers that an Oldsmobile Aurora was wanted in connection with a shooting was broadcast only in Zone 8.  The call that went out in Zone 6 said nothing of weapons or a shooting, but merely described that the occupants of the vehicle were wanted in relation to a “traffic pursuit.”

So Mosqueda and Sierra had no reason to be on “high-risk” alert when they pulled over Pinex’s Oldsmobile. This is critical to the chain of events that followed.  Obviously, the officers’ account and that of Pinex’s surviving passenger, Matthew Colyer, differ.  The officers said they approached the Oldsmobile and at some point, Pinex reversed the car, hitting a light post.  Sierra fired into the vehicle, not hitting anyone.  Pinex then put the car in drive and moved forward.  At this point, Mosqueda fired, killing Pinex.

Colyer’s account says that the officers’ car aggressively pulled in front of the Oldsmobile, cutting it off. The officers got out with guns drawn and almost immediately began firing. This is when Pinex reversed into the light pole.  The accounts agree that as Pinex began to drive forward, he was shot and killed.

After the shooting, the officers arrested Colyer and called in the incident.

The Police Investigation

Detectives George Gallagher and Kevin Smith were the first investigators to arrive on the scene and speak with Mosqueda and Sierra. The detectives’ notes from these interviews show that Mosqueda and Sierra said that the Oldsmobile was a “wanted vehicle,” but never said anything about it being wanted in connection to a shooting or that a gun was found in the car.  At some point later, the police alleged that they found a gun in the car under Pinex’s seat.

Sergeant Jeffrey Siwek, Mosqueda and Sierra’s supervisor, arrived on the scene and eventually transported Mosqueda to a local hospital (he was examined but uninjured). During that time, Siwek was communicating with dispatchers to try to find out why the police were interested in an Oldsmobile Aurora.  Records indicate that he learned, shortly after becoming involved, of the call that went out to Zone 8 (the call that Mosqueda and Sierra did not hear).

Hours later, both Mosqueda and Sierra were interviewed by the Independent Police Review Authority (IPRA), an organization that has shown little independence and even less authority when it comes to investigating the Chicago Police. At this interview, after most of the officers involved, including their supervisor, Sergeant Siwek, had learned of and even listened to a recording of the original Zone 8 call about an Oldsmobile Aurora wanted for a possible shooting, Mosqueda and Sierra had a different story than their first interview with Gallagher and Smith.  During the IPRA interview, both officers claimed that they had heard over dispatch that an Oldsmobile Aurora was wanted for a shooting.

Although the difference between what Mosqueda and Sierra said they heard that night and what they actually heard would be a central moment in the wrongful death civil suit, the police had no problem ignoring this discrepancy and finding that Mosqueda and Sierra’s actions were justified. Mind you, the police know better than anyone what information Mosqueda and Sierra actually heard or didn’t hear.  There can be little doubt that this was a concerted effort on the part of the officers involved, the investigators and the IPRA to create a false reality to justify this police killing.

State’s Attorney Investigation

There was none. This is the same office that saw the Laquan MacDonald video, and only “chose” to move forward with any meaningful investigation and charges after they knew that the public would get to see it. As for the shooting death of Darius Pinex, the police handed over a clear-cut story.  Individuals in an Oldsmobile Aurora were wanted in connection to a shooting.  Oldsmobile Aurora matching the description was pulled over.  Driver of the Oldsmobile reversed into a light pole and then drove forward towards Mosqueda, placing him in imminent danger.  Mosqueda shot and killed Pinex.

The story is tragic, but very straightforward. Unfortunately, it is also premised upon a complete lie.  Mosqueda and Sierra were only looking for a car wanted for a “traffic pursuit.”  It is now clear that the officers’ after-the-fact justification by reference to a shooting dispatch that they never heard should sufficiently call into question the remainder of their account.  But unlike the rest of us, with the Chicago prosecutor’s office, a story is accepted as truth, as long as that story comes from their friends over in the police department.

As a sidenote, Anita Alvarez, the embattled head of the prosecutor’s office in Chicago, is facing a primary in March 2016.  Although many have called for it, it does not appear that Alvarez is going to willingly resign.  But the funny thing about America and elections is that in two months, Chicago can do one better and fire her.  And they absolutely should.

The Wrongful Death Civil Suit

Nine months after the shooting, the estate of Darius Pinex filed a wrongful death suit against the City of Chicago, Mosqueda and Sierra.  In the lead up to trial, plaintiffs’ attorneys demanded discovery from the Chicago Law Department (the agency responsible for defending the city and the police), specifically requesting recordings of the radio communications that were heard by Mosqueda and Pinex on the night of the shooting.

One of the city attorneys assigned to defend the officers, Thomas Aumann, searched for this discovery material. However, he only searched for it in the Law Department file that had already been set up by paralegals.  Aumann never contacted the Office of Emergency Management Communications (OEMC), the agency responsible for maintaining those recordings and records.  Aumann also never contacted the Chicago Police Department to ensure that his own Law Department records were complete.  They were not, as they did not contain the Zone 6 recording that Mosqueda and Sierra had actually heard that night.

During pretrial preparation, the city’s lead attorney, Jordan Marsh, played the Zone 8 calls (the ones that referred to a shooting and possible weapon) for Mosqueda and Sierra for the first time. Mosqueda told Marsh that he had never actually heard those calls before.  Apparently, at this point, mere days before the trial was set to begin, the officers had to explain to the team of city attorneys the fact that the police used different radio zones for different districts.

On the other side, the plaintiffs’ attorneys made the same realization. They filed a motion asking the court to bar both the Zone 8 calls and bar Mosqueda or Sierra from testifying about having heard any call over the radio.  This would essentially remove the dangerous context from the incident and turn it basically into a routine traffic stop with a deadly ending.

Marsh and the city responded that upon learning of this issue, they, for the first time, contacted OEMC to try to track down the Zone 6 recording (the one that Mosqueda and Sierra actually heard). However, OEMC only kept the recordings for 30 days, so the essential recording no longer existed.  At a pretrial conference two days before trial began, Marsh argued to the court that because the Zone 6 recording did not exist, he should be allowed to play the Zone 8 recording in conjunction with Mosqueda’s testimony that the call he heard was very similar.  The court agreed and allowed Marsh to use the Zone 8 recording.

Little did Judge Chang know, though, that during this discussion, Marsh already knew that OEMC had sent copies of the Zone 6 recordings to the Chicago Police shortly after the shooting. Marsh not only failed to mention it at this point, but he remained silent about his knowledge of the Zone 6 recording until the middle of trial, and only after he was outed by one of his own witnesses.

When it came time to explain to the jury why the Zone 6 recording did not exist (it did), Marsh chose to call Laura Dunaj from OEMC, who was apparently willing to lie and say that there was no record of the call. Her testimony was presented despite the fact that Marsh had been in communications with Jill Maderak at OEMC who had led him to the existing recording.

During plaintiffs’ cross of Dunaj, it became clear that the city had never delivered plaintiffs’ subpoena requesting the records to Dunaj or OEMC. Judge Chang then went a bit off-script and allowed both plaintiffs’ and defense attorneys to interview Dunaj outside the presence of the jury.  During that discussion, Dunaj finally fessed up to the existence of the Zone 6 recording.

Judge Chang called the case back onto the record and demanded to know when Marsh learned that the Chicago police had a copy of the Zone 6 recording?  His answer was “a couple of days ago.”  The truth was that he learned of it one week prior, days before the trial even began.  Then this defense attorney defended himself with the following:

My thought process was I want to see what is on that. You know, in retrospect, I think I should have but it just – my thought process was I wanted to see what on that, I wanted to talk to the sergeant, and to see whether it was even relevant.

Judge Chang responded with the obvious, that “whether that CD had no call or did have a call, it was going to be relevant either way.” But in spite of Marsh’s clear misconduct, the judge reserved decision on the plaintiffs’ very strong mistrial motion and allowed the trial to continue.

But the damage had been done, and at the end, the jury found in favor of the officers.  At that point, Judge Chang vacated the verdict and ordered both sides to submit briefs on what action he should take.  Needless to say, Marsh was fighting for more than just this case.  He was fighting for his job.  He deservedly lost that argument and was fired resigned last week, and if there is any justice, he should lose his license to practice law altogether.

Although Judge Chang ultimately made the correct decision in vacating the verdict, when he allowed this case to continue, his decision was wrong. I understand judicial economy, but judicial economy does not supersede the job of a judge to keep this a fair fight.  Hey judges, if we are going to change things, we need your help.  If you see something, say something.

Mind you, Jordan Marsh, if he had his way, would have walked away from that trial having never disclosed the police recordings that changed the whole nature of the case. Yes, the jury heard this recording in the middle of trial, but this could not have erased the fact that the trial had completely been about two officers approaching a car that had been reported to have been involved in a shooting.  That is quite a different landscape than the one the jury was asked to pivot to, one in which those same officers pulled Pinex over because a car matching his car’s description was merely wanted for something.

Fortunately, and in spite of Marsh’s best efforts, there will be another jury and that jury will certainly hear at least that part of the truth.

But regardless of what happens in the second trial of Darius Pinex v. City of Chicago, et al., everything that occurred from his death all the way through the end of his first trial exposed so many layers of a system that has a disturbingly perverted definition of “justice.”  The police built a false narrative based upon self-preservation and manufactured evidence.  The prosecutor’s office accepted the police story without question, like so many times before.  The senior attorney defending the city from the wrongful death suit intentionally withheld central evidence in an ill-fated attempt to deny even monetary justice to the family of Darius Pinex.

The fact that Marsh was the only one held accountable despite the cadre of despicable government actors is both a testament to how far we have come and how far we have to go. But the city that has at times been synonymous with corruption has lately been showing that it might be ready to take on the police, the prosecutors and the city itself, and potentially balance the power of an unbalanced system.

Chicago, lead the way.

5 Comments on this post.

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  • Scott Jacobs
    11 January 2016 at 2:02 pm - Reply

    “But the funny thing about America and elections is that in two months, Chicago can do one better and fire her. And they absolutely should.”

    But they won’t.

  • Eva
    11 January 2016 at 3:33 pm - Reply

    May not turn the tide on the re-election efforts of Anita Alvarez but there is something from what I understand of calls to resign coming from the local teacher union for her to step down apparently (also Rahm Emanuel) because of the Laquin Mcdonald tragedy and how law enforcement strategies are affecting their respective communities.

    That kind of publicity plus what happened to Daruis Pinex may change the course of Ms. Alvarez’s ambitions of getting re-elected.

    • Scott Jacobs
      11 January 2016 at 3:58 pm - Reply

      Eh, the Teacher’s Union in Chicago is potentially going to lose a LOT of power is the Supreme Court rules against the Unions…

      • Eva
        11 January 2016 at 6:11 pm - Reply

        True. But that is pretty much nation wide regarding public employee unions.

  • An Apology To The Police
    18 January 2016 at 9:20 am - Reply

    […] writer, I would at least have to concede that I am a criminal justice writer. I have written about misconduct and metrocards. Heroin and hoverboards. So many of the things I have written have been directed at […]