881
1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3 ERNEST T. BROWN, et al., )
)
4 Plaintiffs, )
) No. 95 C 1890
5 v. ) Chicago, Illinois
) December 1, 1997
6 CITY OF CHICAGO, ) 9:00 a.m.
)
7 Defendant. )
8 VOLUME 6
9 TRANSCRIPT OF PROCEEDINGS - TRIAL
10 BEFORE THE HONORABLE ROBERT W. GETTLEMAN
11 APPEARANCES:
12 For the Plaintiffs: KENNETH N. FLAXMAN, P.C.
122 South Michigan Avenue
13 Suite 1850
Chicago, Illinois 60603-6107
14 BY: MR. KENNETH N. FLAXMAN
15 and
16 FUTTERMAN & HOWARD, CHTD.
122 South Michigan Avenue
17 Suite 1850
Chicago, Illinois 60603
18 BY: MR. CRAIG FUTTERMAN
19 For the Defendant: MAYER, BROWN & PLATT
190 South LaSalle Street
20 Chicago, Illinois 60603
BY: MR. JAMES HOLZHAUER
21 MR. JEFFREY S. PIELL
MS. ANGELA K. DORN
22 MR. ANDREW NICELY
23 Official Court Reporter: JENNIFER S. COSTALES, CSR, RMR
219 South Dearborn Street
24 Room 1744-A
Chicago, Illinois 60604
25 (312) 427-5351
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Levitt - direct
1 (Proceedings in open court.)
2 THE CLERK: 95 C 1890, Ernest Brown, et al., versus
3 City of Chicago; on trial.
4 THE COURT: All right. Where did we leave off?
5 Remind me.
6 Did everybody have a nice holiday, I hope?
7 MR. HOLZHAUER: Yes.
8 MR. PIELL: Thank you.
9 MR. FLAXMAN: Well, some judges ordered counsel to
10 have a nice holiday, Judge.
11 THE COURT: Well, I hope you obeyed the order.
12 MR. FLAXMAN: Mr. Futterman is ill and may be joining
13 me later.
14 THE COURT: Okay.
15 MR. FLAXMAN: We're ready to put on our expert out of
16 order, Dr. Levitt.
17 THE COURT: Okay, fine.
18 Please raise your right hand.
19 (Witness duly sworn.)
20 STEVEN D. LEVITT, PLAINTIFFS' WITNESS, SWORN
21 DIRECT EXAMINATION
22 BY MR. FLAXMAN:
23 Q. Could you state your name and spell your last name, please.
24 A. Steven D. Levitt, L-e, v as in Victor, i-t-t.
25 Q. And what is your business or occupation?
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Levitt - direct
1 A. I'm a professor of economics at the University of Chicago
2 Department of Economics.
3 Q. Let me show you what has been marked as Plaintiffs' Exhibit
4 137. Is this a copy of your curriculum vita?
5 A. Yes, it is.
6 Q. And does that CV correctly set out your training?
7 A. Yes, it does.
8 Q. Before becoming an assistant professor at the University of
9 Chicago, where were you employed?
10 A. I was a junior fellow in the Harvard Society of Fellows.
11 Q. What does it mean to be a junior fellow at the Harvard
12 Society of Fellows?
13 A. A junior fellow is -- there are 24 of us who are chosen for
14 exemplary performance and potential in academic areas of varied
15 interest from the sciences to the humanities.
16 Q. Did you have to teach as part of being a junior fellow?
17 A. No, I did not.
18 Q. Did you have to do anything as part of being a junior
19 fellow?
20 A. No, it is a three-year honor that is afforded to
21 researchers to give them the best possible opportunity to
22 fulfill their potential.
23 Q. And did you do research during those three years?
24 A. Yes, I did.
25 Q. Before becoming a junior fellow, were you employed or in
884
Levitt - direct
1 school?
2 A. I was -- immediately before that, I was obtaining my PhD at
3 MIT.
4 Q. And in what field of study is your PhD?
5 A. Economics.
6 Q. Is there any particular branch of economics?
7 A. I have specialized in two different areas of economics, the
8 first being empirical studies of the criminal justice system,
9 and the second being empirical studies of the American
10 political system.
11 Q. And before starting your graduate studies at MIT, were you
12 employed or were you in school?
13 A. I was employed as a consultant, a management consultant at
14 a firm called Corporate Decisions.
15 Q. And for how long did you work as a management consultant?
16 A. Roughly two years.
17 Q. And before working as a management consultant, were you in
18 school?
19 A. Yes, I was.
20 Q. Where were you in school?
21 A. I did my undergraduate studies at Harvard University.
22 Q. And did you receive a degree from Harvard University?
23 A. I graduated summa cum laude.
24 Q. In a particular major?
25 A. In economics.
885
Levitt - direct
1 Q. Now, in the course of your professional work, have you
2 published any research?
3 A. Yes, I have. I have been widely published.
4 Q. And just generally, has any of that research that you
5 published concerned measuring things?
6 A. Yeah, virtually all of my research has involved measuring
7 things.
8 Q. Could you tell us what kind of things you've measured
9 that's been the subject of published articles?
10 A. I have measured the causal effect of police on crime, for
11 instance. I have measured the extent to which juvenile,
12 juvenile criminals respond to punishments in the same manner as
13 adult criminals.
14 I have measured the extent to which one consumer
15 installing Lojack in his automobile leads to the reduction in
16 auto theft for other owners of automobiles. I have looked at
17 the effect of --
18 THE COURT: What did you say he was installing?
19 THE WITNESS: Lojack.
20 THE COURT: What is that?
21 THE WITNESS: Lojack is a hidden radio transmitter
22 device that is put under the hood of a vehicle.
23 THE COURT: Okay.
24 BY THE WITNESS:
25 A. I have looked at the extent to which campaign spending
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Levitt - direct
1 influences election outcomes. I've looked at the determinants
2 of voting of senators, whether they respond to the interests of
3 the constituency or their own ideology.
4 Is that enough or would you like me to go on?
5 BY MR. FLAXMAN:
6 Q. Have you studied anything about affirmative action?
7 A. I have looked at the question of whether or not white and
8 nonwhite officers are equally effective in reducing crime, and
9 also whether there are differential patterns of arrest by white
10 and nonwhite officers.
11 Q. Let's go to the first one you mentioned, police on crime.
12 How did you measure the impact of police on crime?
13 A. Let me start by saying why that's difficult, which is that
14 what we're interested in in such a study is the causal
15 relationship between police and crime, the extent to which
16 adding more police will reduce crime.
17 And what makes the problem a difficult one to answer
18 is that not only do police have a causal effect on crime, but
19 crime has an effect on police. When crime is going up, there
20 is a tendency for the political process to respond by hiring
21 more police.
22 And so many studies in the past, in fact all studies
23 in the past, when looking at the correlation between police and
24 crime, have found that police are positively correlated with
25 crime or at least not negatively correlated with crime,
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Levitt - direct
1 suggesting in a very simplistic framework that police, in fact,
2 increase crime rather than reduce crime.
3 What I did, however, was to try to exploit what I
4 would call a natural experiment of elections, mayoral
5 elections. It turns out that in election years, a lot more
6 police hiring is done than in nonelection years. But you don't
7 think otherwise that election years will affect crime rates.
8 So in a sense, it provides a -- election years provide a
9 natural experiment, a forum in which you can get an exogenous
10 change in the size of the police force, which will then isolate
11 the causal relationship running from police to crime.
12 Q. How did you measure Lojack versus The Club?
13 A. We measured Lojack, the effect of Lojack by comparing the
14 changes in auto theft rates in cities with and without Lojack
15 before and after the introduction of Lojack and looked for
16 consistent patterns of changes in auto theft relative to other
17 crimes in those cities.
18 Q. The study about the size of the police force and crime, was
19 that published in a refereed journal anywhere?
20 A. Yes, it was. That was published in the American Economic
21 Review.
22 Q. And what is the American Economic Review?
23 A. That is the official journal of the American Economic
24 Association, which is distributed to all members of the
25 American Economic Association.
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Levitt - direct
1 Q. Now, just to make clear some of the parameters on the
2 nature of the opinions I'm going to ask you about, you're not
3 an industrial psychologist, is that right?
4 A. No, I am not.
5 Q. And you don't have any special knowledge about how to make
6 up tests?
7 A. No, I do not.
8 Q. And you're not an expert on the EEOC or the Uniform
9 Guidelines for Employee Testing?
10 A. No, I am not.
11 Q. You're not an expert on the Society of Industrial and
12 Organizational Psychology Guidelines?
13 A. No, I'm not.
14 Q. And you're not an expert in the APA guidelines?
15 A. No, I'm not.
16 Q. You're not an expert in psychometrics?
17 A. No, I am not.
18 Q. And will you ever use the phrase "good psychometric
19 qualities" in your testimony today?
20 A. Highly doubtful.
21 Q. Okay. Now, in the opinions that -- are the opinions that
22 I'm -- that you have formed in the course of your work in this
23 case, are they based on your personal experience with police
24 officers?
25 A. Very --
889
Levitt - direct
1 MR. HOLZHAUER: Your Honor --
2 THE COURT: Hold on.
3 MR. HOLZHAUER: I'm going to -- we have an objection
4 in our pretrial order to Dr. Levitt's testimony. I'd like the
5 opportunity to voir dire the witness before we get into the
6 opinions.
7 THE COURT: I don't think you're quite there yet.
8 MR. HOLZHAUER: Okay.
9 THE COURT: I'll let you do that.
10 When you see him, Dr. Levitt, when you see him stand
11 up, just hold your answer until I have a chance to rule,
12 please.
13 Go ahead.
14 BY MR. FLAXMAN:
15 Q. The opinions that you've been asked to give in this case
16 are not based on conversations with police officers, is that
17 right?
18 A. That is correct.
19 Q. Now, to form the opinions that you have that you've been
20 asked to formulate for this case, did you read any documents
21 about this case?
22 A. Yes, I did.
23 Q. What did you read?
24 A. I read --
25 MR. HOLZHAUER: Your Honor, the witness is referring
890
Levitt - direct
1 to some documents there. I think they should either be on the
2 record or he should be going by memory.
3 THE COURT: All right.
4 Why don't you just tell us what you're looking at,
5 Dr. Levitt.
6 THE WITNESS: I'm just looking at my statement of
7 opinion that I provided in this case in order to --
8 BY MR. FLAXMAN:
9 Q. Is that gong to help refresh your recollection about what
10 it was you looked at?
11 A. That's correct.
12 Q. And after having looked at your statement of opinion, do
13 you have a present recollection of what it was you looked at to
14 form your opinion?
15 A. Yes. I looked at the written test, the 1994 Chicago police
16 lieutenant test. I looked at Dr. Barrett's testimony dated
17 October 10th, 1995.
18 I looked at some materials from the Adams case of the
19 sergeant promotion. I looked at the Chicago City Council
20 hearings on the sergeants promotion, and I looked at the Police
21 Department Promotion and Testing Task Force Report dated
22 January 16th, 1997.
23 Q. Now, could you tell us what it is that you've been asked to
24 give opinions about, without telling us what those opinions
25 are?
891
Levitt - direct
1 A. I've been asked whether or not I believe it is possible to
2 measure police performance and also to give my opinions about
3 the proper purposes of a promotional test scheme.
4 Q. Now, what particular expertise do you have that makes you
5 an expert about whether it's possible to measure police
6 performance?
7 A. Well, I have the expertise of my training, which has been
8 in measurement of issues in a wide scope of areas. I have my
9 background in management consulting working with a number of
10 different companies. And I have expertise from articles I've
11 written concerning incentive schemes.
12 Q. Have you also formed opinions about the sufficient
13 statistic?
14 A. I have formed opinions about the sufficient statistic
15 result.
16 Q. Without giving any opinion about this case, what is the
17 sufficient statistic?
18 A. The sufficient statistic theorem in statistics states that
19 when you have more than one imperfect measure of a variable you
20 are trying to predict, you will get better in the sense of more
21 precise and less biased.
22 And by "biased," I mean in the statistical sense of
23 having a mean which is different from that of the variable you
24 are trying to predict.
25 Q. Is it fair to describe you as a quantitative social
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Levitt - direct
1 scientist?
2 A. Yes, that would be correct.
3 Q. And have you published articles as a quantitative social
4 scientist?
5 A. Yes, I have.
6 Q. And do you have a PhD in a quantitative social science?
7 A. Yes, I do.
8 Q. And in the course of your teaching, do you teach
9 quantitative social sciences?
10 A. Yes, I do.
11 Q. In addition to teaching at the University of Chicago, do
12 you have any other employment at the present time?
13 A. I am a research fellow at the American Bar Foundation.
14 Q. And what is your responsibility as a research fellow at the
15 American Bar Foundation?
16 A. I have no formal responsibilities. I'm asked to continue
17 doing the type of research that I think is the proper and most
18 useful research.
19 Q. And is that type of research quantitative social science?
20 A. Yes, it is.
21 MR. FLAXMAN: Judge, I would tender Dr. Levitt as an
22 expert able to offer opinions about quantitative social
23 sciences, not about test validity or the other things that are
24 mentioned in the objection.
25 MR. HOLZHAUER: May I voir dire the witness, please?
893
Levitt - voir dire
1 THE COURT: Sure.
2 BY MR. HOLZHAUER:
3 Q. Good morning, Dr. Levitt.
4 A. Good morning.
5 Q. I understand from the summary of your report that you
6 prepared that you are going to testify that the Chicago Police
7 Department's policy of basing promotion decisions exclusively
8 on the outcome of test scores is ill advised and difficult to
9 justify, is that correct?
10 A. That is correct.
11 Q. And you are going to testify that it's possible to measure
12 the job performance of a police sergeant?
13 A. That is correct.
14 Q. You're going to testify that there is a wealth of data from
15 a police department's job performance history that could be and
16 should be utilized in promotion testing?
17 A. That is correct.
18 Q. And you're going to testify that basing promotion decisions
19 on past job performance rather than test scores should lead to
20 greater effort on the part of police officers to perform their
21 duties as well as possible?
22 A. That is correct.
23 Q. I believe those are the four central elements in your
24 testimony, is that correct?
25 A. Yes.
894
Levitt - voir dire
1 Q. Are you an expert on promotional testing?
2 A. No, I'm not.
3 Q. Are you an expert on performance evaluation?
4 A. No, I'm not.
5 Q. Did you have any direct knowledge about the data maintained
6 by the Chicago Police Department regarding police officers' job
7 performance history when you formed your opinion?
8 A. Not direct evidence, no.
9 Q. Have you had any formal training in the field of industrial
10 psychology?
11 A. No.
12 Q. Now, I understand from your deposition and from your
13 testimony earlier that you're not going to be offering any
14 testimony as to the validity of the 1994 exam, is that correct?
15 A. That is correct.
16 Q. And you're not an expert on test creation or test
17 validation, is that correct?
18 A. No, I'm not. That is correct, yes.
19 Q. Have you ever done any study of the content validity of an
20 employment test?
21 A. No.
22 Q. Have you done a criterion-related validation study?
23 A. No.
24 Q. A construct validation study?
25 A. No.
895
Levitt - voir dire
1 Q. In fact, at the time of your deposition, you didn't know
2 what a construct validation study is, is that correct?
3 A. That is correct.
4 Q. Are you an expert on merit selection of police managers?
5 A. No.
6 Q. Have you done any studies on merit selection of police
7 officers and police managers?
8 A. No.
9 Q. Have you ever studied whether merit selection has an
10 adverse impact?
11 A. No, I have not.
12 Q. And have you ever studied whether merit selection methods
13 are valid within the meaning of the EEOC guidelines?
14 A. No, I have not.
15 Q. Now, I understand from your deposition that you're not
16 going to give any testimony or any opinion as to whether the
17 1994 exam was developed in conformity with the EEOC guidelines
18 and similar professional standards, is that correct?
19 A. That's correct.
20 Q. And you wouldn't have the expertise to give such an
21 opinion, is that correct?
22 MR. FLAXMAN: Let me object, Judge. We've
23 established all of this on direct. The purpose of this voir
24 dire is just to insult the witness.
25 MR. HOLZHAUER: No, it's not.
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Levitt - voir dire
1 THE COURT: I don't think he's insulted at all. It's
2 helping me understand what he is proposing to testify about and
3 what he's not proposing to testify about.
4 BY MR. HOLZHAUER:
5 Q. You wouldn't have the expertise to testify about whether
6 the exam was prepared in conformity of the EEOC guidelines and
7 professional principles, correct?
8 A. No, I would not.
9 Q. Did you read the EEOC guidelines before giving your
10 opinion?
11 A. I have seen the EEOC guidelines.
12 Q. Did you read them before forming your opinion?
13 A. Not immediately before, no.
14 Q. At any time before then?
15 A. I believe that I had prior to that time seen those
16 guidelines.
17 Q. Had you read them?
18 A. I believe that seeing and reading are -- yes.
19 Q. You're not going to offer any testimony about the job
20 analysis conducted by Barrett & Associates, is that correct?
21 A. That is correct.
22 Q. Now, before giving your opinion, you reviewed only the
23 written job knowledge portion of the exam, is that correct?
24 A. That's correct.
25 Q. You didn't review the oral briefing exercise?
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Levitt - voir dire
1 A. No.
2 Q. You didn't review the in-basket exercise?
3 A. No, I did not.
4 Q. And I understand from your deposition that you spent about
5 ten hours reviewing the materials that you described earlier in
6 drafting your opinion, is that correct?
7 A. That is correct.
8 Q. Now, most of that material you reviewed related to the
9 sergeants exam and the Adams litigation, is that correct?
10 A. That is correct.
11 Q. You didn't speak with any Chicago police officers before
12 you formed your opinion, did you?
13 A. No, I did not.
14 Q. Now, I read in your deposition that you have a reputation
15 for solving difficult problems, for figuring out ways to solve
16 problems that others have been unable to solve, is that
17 correct?
18 A. That is correct.
19 Q. You try to come up with statistical methods to solve those
20 problems, right?
21 A. Typically.
22 Q. And that's what you've done in this case, you've considered
23 the problem of how best to select candidates for promotion
24 within a police department and have stated your views on the
25 optimal selection method, is that correct?
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Levitt - voir dire
1 A. That is correct.
2 Q. But you're not an expert on promotional testing or on
3 employee selection or performance evaluation or industrial
4 psychology or merit selection of police officers or test
5 creation or validation?
6 MR. FLAXMAN: Object to the form of the question.
7 THE COURT: It's a long compound question.
8 Can you answer it? Do you understand it?
9 THE WITNESS: I believe I can answer it.
10 BY MR. HOLZHAUER:
11 Q. Are you an expert on any of those areas?
12 A. No, I'm not.
13 MR. HOLZHAUER: Your Honor, the City objects to
14 Dr. Levitt's testimony as an expert in this case. I'm sure he
15 has his areas of expertise. But he's not an expert on anything
16 at issue in this case. He's essentially acting as an advisory
17 judge. He's a smart man. He's on accomplished man.
18 He's been asked to think about and give his views on
19 a promotion process that's totally outside his areas of
20 expertise. And he's prepared to do so based on the material,
21 some of which is of questionable relevance, that Mr. Flaxman
22 has given him.
23 To paraphrase the Seventh Circuit standard in this
24 area, his expert testimony would not be expert opinion, merely
25 opinion given by an expert, and not on -- not one with
899
Levitt - direct
1 expertise in the relevant areas. I don't think it's proper
2 testimony and I don't think it should be admitted.
3 THE COURT: You don't have to say anything. You
4 know, what you've done is you've narrowed his area of testimony
5 to the point where he's obviously qualified to testify about
6 the areas that you have narrowed him down to. Whether that is
7 enough to win the case for Mr. Flaxman has yet to be seen. I'm
8 interested in Mr. Flaxman's burden of showing equally available
9 alternatives, and what he's going to be testifying to, I think,
10 is related to that subject. It's a building block, I think,
11 more than the entire structure. But I think it's something I'm
12 interested in.
13 And I think it will be of help to the Court, at least
14 at this stage I think it will be, and I'm sure you'll have
15 plenty of opportunity to argue that it doesn't do it. But
16 right now I'm going to deny the motion and I will let
17 Dr. Levitt testify. All right.
18 BY MR. FLAXMAN:
19 Q. Now, Dr. Levitt, now that you're allowed to give your
20 opinions, do you have an opinion as to whether or not it is
21 possible to measure the performance of a Chicago police
22 sergeant?
23 A. Yes, I believe it is possible.
24 Q. What is that opinion?
25 A. I believe it is possible.
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Levitt - direct
1 Q. And what is the basis for that opinion?
2 A. It is based on my extensive experience with measurement of
3 other issues in the past. It's based on the premise of modern
4 science that most things, all things are measurable, and more
5 recently, the premise of modern social science that things can
6 be measured.
7 And it's based on the premise that in organizations
8 other than the Chicago Police Department, including the private
9 sector and the U.S. military, there appears to be attempts to
10 measure performance on the job.
11 Q. You talked about that you have an opinion about incentives.
12 What do you mean by "incentives"?
13 A. By "incentives," I mean --
14 Q. Could I move the microphone so I could hear you better?
15 MR. FLAXMAN: Is that on?
16 THE COURT: It's on.
17 THE WITNESS: Do you want it louder?
18 MR. FLAXMAN: I'm having trouble hearing. I think
19 you have a cold. Could you get closer to it, so I could hear
20 better.
21 THE WITNESS: Yes.
22 MR. FLAXMAN: Thank you.
23 BY MR. FLAXMAN:
24 Q. What do you mean by "incentives"?
25 A. By "incentives," I mean that individuals respond to the
901
Levitt - direct
1 rewards and punishments that are given to them.
2 And by "respond," I mean change their behavior in
3 such a way as to increase the rewards and reduce the
4 punishments.
5 Q. And do you see -- have you seen incentives in
6 organizations?
7 A. Yes, absolutely.
8 Q. Have you studied that?
9 A. Yes, I have.
10 Q. In what context have you studied incentives the way you
11 defined it?
12 A. I have published two papers on the topic of incentives,
13 directly related to incentives. But in many ways all of my
14 papers related to incentives.
15 Q. And in looking at the promotional system that's at issue in
16 this case, what incentives did you see? Or not -- what
17 opportunity for incentives did you see?
18 A. It's my impression --
19 MR. HOLZHAUER: Your Honor, I'm just going to object
20 to this testimony. I don't see incentives -- how incentives
21 are relevant to the issues in this case.
22 THE COURT: I'm beginning to wonder myself.
23 MR. FLAXMAN: Oh, I think it will be very clear.
24 THE COURT: I'll let him try to tie it up.
25 BY MR. FLAXMAN:
902
Levitt - direct
1 Q. What did you see about incentives, or the lack of
2 incentives?
3 A. It is my belief that by ignoring all of the information on
4 the job of police sergeants in the Chicago Police Department in
5 basing the promotion decision on a battery of tests rather than
6 on their on-the-job performance, that that gives possibly the
7 wrong incentives for the police officers on the job to exert
8 maximum effort.
9 MR. HOLZHAUER: Object. Again, Your Honor, it seems
10 to me that he might be absolutely right that the testing
11 process doesn't give sergeants or police officers the proper
12 incentives to perform at their previous ranks, but that has
13 nothing to do with whether the selection process promotes the
14 best qualified people for lieutenant.
15 MR. FLAXMAN: I think that -- well, that's his
16 burden. My burden, if we're going on the equally valid less
17 discriminatory alternative, is that there is something that
18 reflects best performance, and it goes to that issue.
19 MR. HOLZHAUER: That's not what he's testifying about
20 now, Your Honor.
21 THE COURT: I think I can give it the weight it
22 deserves. Thank you. Overruled.
23 BY MR. FLAXMAN:
24 Q. And you talked about that you formed an opinion as to
25 whether or not the promotional system basing promotions on a
903
Levitt - direct
1 test is ill advised. And what's your opinion about that?
2 A. I believe it is ill advised.
3 Q. And what's the basis for that opinion?
4 A. The basis for that opinion is, first, the sufficient
5 statistic result that I reported earlier, which is that when
6 there is more than one measure of performance, in this case
7 there being on-the-job data that is available and also the
8 performance on the battery of tests, that basing a promotion
9 decision solely on one of those pieces of data rather than on
10 all available will yield a less, a less precise measure of
11 future performance.
12 Q. Now, when you talked about incentives, could you just maybe
13 make it more understandable, what kind of incentives have you
14 studied in other contexts?
15 A. Within the context of the criminal justice system, I've
16 studied the incentives of criminals, of individuals to either
17 engage or not engage in criminal behavior. I have studied the
18 incentives for employees to come forward with bad news to their
19 employers in a timely manner.
20 Q. Now, what do you mean by "bad news"?
21 A. By "bad news" I mean private knowledge about -- about an
22 outcome that will be -- that will affect a firm profitability.
23 Q. Now, if you have a test that's based on memorizing general
24 orders and you promote based on scores on that test, is
25 memorizing general orders the incentive?
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Levitt - direct
1 A. I believe that if I were a police officer faced with those
2 incentives, I would spend a lot of time memorizing general
3 orders and be less concerned about my performance on the job.
4 Q. And if promotions were based on past performance, would
5 then the past performance be the incentive?
6 A. Yes. I would expect that if promotions were based on past
7 performance, then I would alter my past performance in order to
8 make myself more likely to be promoted.
9 Q. Now, when you gave the opinion that you believe it's
10 possible to measure the performance of a sergeant, how would
11 you go about measuring the performance of a sergeant?
12 A. Well, there is certainly a number of dimensions along which
13 one could measure the performance of a police officer.
14 I think the right way to start in such an exercise
15 would be to hold all other factors constant and think about
16 varying one factor at a time. So, for instance, if two police
17 officers, two police sergeants were identical except that one
18 showed up for work regularly and the other frequently missed
19 work, it would seem to me quite clear that the one who shows up
20 for work has in some sense better performance than the one who
21 does not show up for work.
22 And I would systematically go through the various
23 aspects of job performance attempting to isolate such factors.
24 Q. And is that the kind of work that you do as a quantitative
25 social scientist?
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Levitt - direct
1 A. Yes, it is.
2 Q. Now, do you -- well, do you think it will be impossible to
3 measure the performance of sergeants?
4 A. No, I do not.
5 Q. Is the general principle of incentives that if you reward
6 someone for behavior, that that behavior becomes more frequent?
7 A. Yes, it is.
8 Q. And in forming your opinions about this present system was
9 ill advised, did you consider the trade-offs involved in
10 designing a promotional process?
11 A. Yes, yes, I did.
12 Q. What trade-offs did you consider?
13 A. I think there are three factors that must be traded off in
14 the design of such a system.
15 MR. HOLZHAUER: Your Honor, I object. I think this
16 is beyond his area of expertise, design promotion processes.
17 MR. FLAXMAN: This is an economic answer to this
18 question.
19 THE COURT: He's testified that there are ways to
20 measure performance. I think this is part of that. Overruled.
21 BY MR. FLAXMAN:
22 Q. As an economist, what trade-offs would in your opinion be
23 important to consider in designing a promotional process?
24 A. There are three factors I would trade off. The first is
25 promoting the most able candidates. The second is the cost
906
Levitt - cross
1 of -- the cost of designing and implementing the promotional
2 scheme. And the third would be the incentives that the
3 promotional scheme gives to all in the organization, regardless
4 of whether or not they are themselves at that time in search of
5 a promotion.
6 Q. Now, getting back to measuring things, do you think -- is
7 it your opinion that it's possible to measure whether scores on
8 a promotional test are correlated with performance on the job?
9 A. I think it would be possible to do that, yes.
10 MR. FLAXMAN: Thank you. I have nothing further.
11 CROSS-EXAMINATION
12 BY MR. HOLZHAUER:
13 Q. Dr. Levitt, you testified that you're a quantitative social
14 scientist?
15 A. That's correct.
16 Q. Would that description fit most University of Chicago
17 economists?
18 A. Yes, it would.
19 Q. Most economists generally?
20 A. Most, yes.
21 Q. And a lot of other people in other social sciences?
22 A. Yes.
23 Q. You also testified that you considered the military
24 promotion process in your opinion, is that correct? You said
25 you looked at something from the U.S. military, what was that?
907
Levitt - cross
1 A. No. I believe what I said is that it is my opinion that
2 the U.S. military does not use a battery of tests as the
3 primary means of promotion.
4 Q. Do you recall in your deposition that you testified that
5 you had no specific knowledge of the U.S. military promotion
6 procedures?
7 A. Yes, that is correct.
8 Q. Now, part of your testimony, or a good part of your
9 testimony, is based on this notion that when there are multiple
10 and perfect predictors, a better prediction could be made by
11 using all of those predictors, is that correct?
12 A. All or even multiple.
13 Q. And by better prediction, you mean a more accurate
14 prediction of job performance, is that correct?
15 A. That is correct.
16 Q. Have you done any studies to determine whether that
17 methodology would result in an adverse impact against minority
18 candidates?
19 A. No, I have not.
20 Q. Are you aware of any such studies?
21 A. I am not personally aware, although I imagine they exist.
22 Q. Are you aware of any validation studies on police promotion
23 processes developed as a result of your methodology?
24 A. No, I'm not.
25 Q. You didn't study the validity of Chicago Police Department
908
Levitt - cross
1 performance evaluations, did you?
2 A. No, I did not.
3 Q. Now, you testified that a number of things could be
4 measured to measure performance, is that correct?
5 A. That is correct.
6 Q. In your report you indicated that one of them might be
7 number of arrests, is that correct?
8 A. That was one of the hypothetical measures that I offered,
9 yes.
10 Q. But you also acknowledged that there could be problems with
11 number of arrests. Do you remember that?
12 A. Yes, that's certainly true.
13 Q. It could give officers an incentive to make unwarranted
14 arrests, correct?
15 A. That is true.
16 Q. You testified that using performance measures would give
17 officers an incentive to perform better, is that correct?
18 A. That's correct.
19 Q. But you looked at no data in the Chicago Police Department
20 to support that conclusion?
21 A. No. I based that conclusion on evidence in other settings.
22 Q. In other police settings?
23 A. Other human settings.
24 Q. Do you know of any data in the police area that supports
25 that?
909
Levitt - cross
1 A. Well, I would say yes.
2 Q. What?
3 A. For instance, when community policing is introduced, that
4 changes the way in which officers are told to perform their
5 jobs.
6 Q. What data do you know that supports that? Have you
7 reviewed any studies supporting it?
8 MR. FLAXMAN: I think the witness should have a
9 chance to answer one question before he gets another one.
10 THE COURT: I think that's a good point.
11 BY MR. HOLZHAUER:
12 Q. What data do you know that supports that?
13 A. No formal data.
14 Q. Now, you also test -- you also suggest in your report that
15 the department might consider the fraction of arrests leading
16 to conviction as a performance measure, is that correct?
17 A. That is one of the measures I offered, yes.
18 Q. Do you know if those statistics are kept?
19 A. I would believe that they would be kept.
20 Q. Do you know if those statistics --
21 A. I do not know.
22 Q. Do you think that all arrests not leading to conviction are
23 bad arrests?
24 A. No. I have not stated that opinion.
25 Q. Now, you also suggested that the department might consider
910
Levitt - cross
1 the number of instances in which the failure to appear before a
2 judge led to dismissal of charges, is that correct?
3 A. That's correct.
4 Q. Do you know if those statistics are kept?
5 A. I believe those statistics are kept.
6 Q. Do you know if they are kept?
7 A. I do not know.
8 Q. Do you know how frequently those kinds of things occur?
9 A. Not frequently one would hope.
10 Q. Would you have to consider why the officer failed to
11 appear?
12 A. Yes, you would.
13 Q. Now, you also mention in your report citizen complaints as
14 something that could be measured. Do you know if statistics
15 are kept on citizen complaints?
16 A. I do not know that.
17 Q. Would you have to evaluate the reason for a complaint?
18 A. I wouldn't say "have to."
19 Q. Well, isn't it possible that a hard-working, aggressive
20 police officer trying to reduce crime and make a lot of good
21 arrests might attract more citizens' complaints precisely
22 because he's doing his job?
23 MR. FLAXMAN: Judge, this is the kind of speculation
24 that we all know the answer that it's not true. But the
25 studies -- but this is the kind of --
911
Levitt - cross
1 THE COURT: This is cross-examination. It's opinion
2 evidence. I'm going to let him do it. Overruled.
3 BY THE WITNESS:
4 A. Could you please repeat that last question.
5 BY MR. HOLZHAUER:
6 Q. Isn't it possible that hard-working police officers, trying
7 to reduce crime and making lots of good arrests, might also
8 attract more citizens' complaints as a result of that?
9 A. Yes, it is. And that's why all of these measures that I
10 put forth need to be taken in the proper context, which is that
11 as I and all here are well aware, none of them are perfect.
12 They're all imperfect. And what one does under the sufficient
13 statistic --
14 Q. Well --
15 THE COURT: Let him finish.
16 BY THE WITNESS:
17 A. -- theorem is to attempt to use a number of imperfect
18 measures in order to -- in order to balance off their
19 imperfections.
20 BY MR. HOLZHAUER:
21 Q. What about a measure that runs in the opposite direction?
22 A. I'm sorry, I don't understand that question.
23 Q. Well, the direction might be that citizens' complaints in
24 some situations might be negatively correlated with police
25 performance?
912
Levitt - cross
1 A. In some circumstances, that might be true.
2 But one might also argue that in some cases, a good
3 performance on a battery of tests might be negatively
4 correlated.
5 Q. Well, you've looked at no studies of that?
6 A. No.
7 Q. You don't know that -- you have no data on that?
8 A. No, I do not.
9 Q. You also proposed that the department might rely on
10 psychological assessment of things like leadership abilities,
11 is that correct?
12 A. That's correct.
13 Q. You're not an expert on psychological testing, are you?
14 A. No, I'm not.
15 Q. Have you looked at the controversy over psychological
16 testing in the police department?
17 A. No, I have not.
18 Q. You also mentioned performance on job-related physical
19 agility tests, is that correct?
20 A. That's correct.
21 Q. That's physical agility needed to be a watch commander?
22 A. Perhaps not, but --
23 Q. Have you studied --
24 MR. FLAXMAN: Judge, Judge --
25 MR. HOLZHAUER: It was a yes or no question, Your
913
Levitt - cross
1 Honor. He answered no.
2 THE COURT: That's right. It was a yes or no
3 question.
4 BY MR. HOLZHAUER:
5 Q. Have you studied the impact -- the adverse impact of
6 physical agility tests on candidates, particularly against
7 women?
8 A. No, I have not but --
9 Q. Thank you.
10 You also said the department might consider the
11 candidate's record of volunteering for the most difficult,
12 dangerous, or least desirable assignments, is that correct?
13 A. That is correct.
14 Q. Do you know if statistics are kept on that?
15 A. No, I do not.
16 Q. Do you know whether the department makes those assignments
17 by asking for volunteers?
18 A. No, I do not.
19 Q. Now, after you mentioned all these possibilities, you
20 acknowledged, I think in your report, that you're not an expert
21 in assessing job performance, is that correct?
22 A. That's correct.
23 Q. Have you done any studies assessing the skills and
24 abilities that are needed for the job of a Chicago police
25 lieutenant?
914
Levitt - cross
1 A. No, I have not.
2 Q. Do you know whether the same things that make a good police
3 officer necessarily make a good lieutenant?
4 A. No, I do not.
5 Q. Do you know if you need good managerial skills, for
6 example, leadership ability to be a beat cop?
7 A. I wouldn't say I know that, no.
8 Q. Now, when you formed your opinion, had you looked at the
9 1983 Landian-Farr study on problems with assessing performance?
10 A. No, I had not.
11 Q. How about the 1991 Borman study on the same topic?
12 A. No, I had not looked at any such study.
13 Q. Had you looked at the 1979 study by Karon-Larson on
14 problems associated with use of infrequently occurring field
15 events as performance measures?
16 MR. FLAXMAN: Let me object to this. I think he has
17 to -- before he could be cross-examined, he has to agree that
18 it's a recognized something that he should know about. He's
19 just repeating articles to him which he doesn't know about.
20 THE COURT: Well, I don't know if he knows about them
21 or not. I want to know what he knows and what he doesn't know.
22 Overruled.
23 BY MR. HOLZHAUER:
24 Q. Did you look at that Karon and Larson study?
25 A. No, I have not.
915
Levitt - redirect
1 Q. How about the Conway and Huffcut 1997 study of the
2 reliability of supervisory performance evaluations?
3 A. No, I did not.
4 Q. Now, during your deposition you were shown a nine-page
5 bibliography of performance appraisal literature, do you
6 remember that?
7 A. Yes, I do.
8 Q. And you testified that you weren't familiar with any of
9 that literature, is that correct?
10 A. That is correct.
11 MR. HOLZHAUER: No further questions.
12 THE COURT: Mr. Flaxman.
13 REDIRECT EXAMINATION
14 BY MR. FLAXMAN:
15 Q. Could you explain what you meant by using a number of
16 imperfect measures?
17 A. What I meant is that none of the measures that I propose do
18 I think are perfect. And so in designing the right sort of
19 incentive scheme, what one needs to do is trade off the various
20 imperfect measures in such a way as to come up with the best
21 possible scheme.
22 And I don't consider myself an expert in determining
23 what the exact trade-offs are. I think the right group to do
24 such a determination is the leadership of the Chicago police
25 force, the mayor of the City of Chicago, or those who the mayor
916
Levitt - redirect
1 thinks are the appropriate group for doing so.
2 Q. Now, you were asked a lot of questions about how you don't
3 know about being a police officer or being an industrial
4 psychologist. Have you ever done any research as an economist
5 in anything at all about police efficiency?
6 A. Well, I have done a number of studies relating police
7 forces to crime, reduction in crime, the composition of police
8 forces and reductions in crime, the composition of police
9 forces and the pattern of arrests related to that.
10 Q. When you say "composition of police forces," what do you
11 mean?
12 A. I mean racial and gender composition.
13 Q. Have you looked at affirmative action of police hiring and
14 the effect on police efficiency?
15 A. Yes, I have.
16 Q. How did you do that?
17 MR. HOLZHAUER: Your Honor, I object. I don't think
18 it's been established this work was done prior to forming his
19 opinion.
20 THE COURT: Why don't you put a time on it.
21 BY MR. FLAXMAN:
22 Q. Did you do any of that work before you gave an opinion in
23 this case?
24 A. Yes. Along with Professor John Donahue of Stanford Law
25 School, we began working with the EEOC on a project in 1996
917
Levitt - redirect
1 relating --
2 Q. And that was --
3 MR. HOLZHAUER: Your Honor, object to this testimony
4 as beyond the scope of cross.
5 THE COURT: No. I think you've tried to show what he
6 knew and didn't know, and this is in the same vain.
7 Go ahead.
8 BY MR. FLAXMAN:
9 Q. What was that research about?
10 A. That research was looking across cities in an attempt to
11 determine whether cities that had increases in female and
12 minority representation on the police force had any
13 differences, discernible differences in patterns of crime and
14 also whether or not any discernible differences in racial
15 patterns of arrests.
16 Q. And where did the data come from to do that study?
17 A. Some of the data came from the EEOC. Others -- other data
18 came from the FBI.
19 Q. Was that a straightforward correlation of two bits of two
20 data sets?
21 A. No. I wouldn't call that straightforward.
22 Q. What would you call it?
23 A. I would say it's a rather subtle relationship one is trying
24 to tease out because of the problems with reverse causality,
25 that the hiring of minority and female police officers may be
918
Levitt - redirect
1 being caused by the crime -- changes in crime rather than
2 vice-versa.
3 Q. Mr. Holzhauer asked you questions about adverse impact and
4 whether you think that using more factors to make promotions
5 would have an impact on -- an adverse impact.
6 Let me ask you the same question starting with the
7 assumption that as a group, the sergeants from whom the
8 lieutenant promotions came, that all racial groups are equally
9 qualified, that the African-American sergeants are equally
10 qualified as the Hispanic sergeants are equally qualified as
11 the white sergeants to be promoted to lieutenant.
12 Would you have an opinion about whether using more
13 indicators of promotability than a single test would result in
14 a more representative group of those being promoted than came
15 out from this test?
16 MR. HOLZHAUER: Object, Your Honor. It's beyond the
17 scope of cross, and I think it's also beyond the expertise of
18 the witness.
19 THE COURT: Overruled.
20 BY MR. FLAXMAN:
21 Q. Would you --
22 A. Could you please repeat the question.
23 Q. Do you remember my prologue about the equally qualified
24 group?
25 A. Yes, I do.
919
Levitt - recross
1 Q. And starting with that assumption and with the stipulated
2 fact that the test that was used here had an adverse impact, a
3 severe adverse impact on minorities, do you have an opinion
4 about whether using additional indicators of promotability
5 other than in addition -- other than or in addition to the
6 written test would result in less of an adverse impact on
7 minorities?
8 A. Yes, I do have an opinion.
9 Q. And what is that opinion?
10 A. That opinion is that if it is true, the assumption that the
11 two groups are equally well qualified, then on measures of job
12 performance such as attendance, past attendance, one would
13 expect that there should be no difference across groups in such
14 a measure. And so one would expect that combining a measure in
15 which there were no differences of cross groups with the
16 measure in which there were clear adverse impact should lead to
17 a reduction in adverse impact for the combined measures.
18 MR. FLAXMAN: Thank you. Nothing further.
19 RECROSS-EXAMINATION
20 BY MR. HOLZHAUER:
21 Q. Well, you've done no studies of adverse impact, is that
22 correct?
23 A. No, I have not done that.
24 MR. HOLZHAUER: No further questions.
25 MR. FLAXMAN: Thank you, Dr. Levitt.
920
Levitt -
1 THE COURT: I have a couple questions.
2 You're not -- you're not giving me an opinion on this
3 particular test, are you?
4 THE WITNESS: No, I'm not.
5 THE COURT: All right. You haven't read the test?
6 THE WITNESS: Well, I've looked at the written test.
7 And since my -- since my initial statement, I've had a chance
8 to look at some of the other components of the test as well.
9 THE COURT: I see, okay. And it's your opinion then
10 I think if you boil it all down, it's your opinion that this
11 test would have likely had a less adverse impact if you
12 combined the test results with some of these other variables
13 that you were talking about?
14 THE WITNESS: My opinion is that if the groups are
15 equally well qualified, then measures of their actual
16 performance on the job should show no adverse impact at all,
17 and the combination of the two would, therefore, have less
18 adverse impact.
19 THE COURT: All right. But do you know whether the
20 police department had records that could have allowed them to
21 measure and input these other variables?
22 THE WITNESS: Well, I certainly believe that the
23 police department keeps the information on whether or not
24 employees show up to work, whether or not they're late for roll
25 call. I know they keep records and arrest records in files
921
1 that they could have used at a later date to do a blind reading
2 of those files by an outside expert for clearness and
3 conciseness.
4 THE COURT: All right. In answer to Mr. Holzhauer --
5 some of Mr. Holzhauer's questions, you agreed that you would
6 have to look behind some of those statistics, such as arrest
7 records, to see if they made sense?
8 THE WITNESS: Right. I think you would want to be
9 very careful that -- very careful in the sense that if you
10 include something like arrest records or conviction rates as a
11 measure in an incentive scheme, you have to be careful that you
12 don't put such a high weight on such measures that that
13 distorts behavior in an undesirable way on police officers.
14 THE COURT: Sort of like writing parking tickets?
15 THE WITNESS: Correct.
16 THE COURT: Okay. I think I understand. All right.
17 Thank you.
18 Any questions based on the questions I just asked?
19 MR. FLAXMAN: Not from plaintiff.
20 MR. HOLZHAUER: No.
21 THE COURT: All right. Thank you, Dr. Levitt.
22 (Witness excused.)
23 THE COURT: What was the order of play, Mr. Flaxman?
24 MR. FLAXMAN: We're back to the defense case with
25 Mr. DeLopez.
922
DeLopez - direct
1 MR. HOLZHAUER: We agreed the witness could go first
2 because of time constraints.
3 MS. DORN: Commander.
4 THE COURT: Please raise your right hand.
5 (Witness duly sworn.)
6 THE COURT: Have a seat.
7 JOSEPH A. DeLOPEZ, DEFENDANT'S WITNESS, SWORN
8 DIRECT EXAMINATION
9 BY MS. DORN:
10 Q. Mr. DeLopez, please state your full name for the record and
11 spell your last name.
12 A. Joseph, middle initial A, DeLopez, that's capital D, e,
13 capital, L-o-p-e-z.
14 Q. And where are you currently employed and in what capacity?
15 A. Chicago Police Department, district commander.
16 Q. And what is your current assignment?
17 A. District commander.
18 Q. Where?
19 A. 23rd District.
20 Q. How long have you been in this assignment?
21 A. A little over two years.
22 Q. That's since 1995?
23 A. Correct.
24 Q. What are your duties as district commander in the 23rd
25 District?
923
DeLopez - direct
1 A. My duties as a district commander are to ensure the
2 delivery of police services to a diverse community of
3 approximately 100,000 people, which includes supervision of a
4 complement of approximately 300 personnel, including watch
5 commanders, field lieutenants, sergeants and police officers,
6 crossing guards.
7 Q. Have you had a lot of responsibility for implementation of
8 the CAPS program within your district?
9 A. Yes, yes, I do.
10 Q. What are the ranks of the individuals who you supervise as
11 district commander?
12 A. Captains, lieutenants, sergeants, police officers.
13 Q. Are you familiar with the duties of the people who you
14 supervise?
15 A. Yes.
16 Q. And how are you familiar with those duties?
17 A. From my past experience in those ranks.
18 Q. And have you also observed those individuals in conducting
19 their job responsibilities?
20 A. Yes, I have.
21 Q. Could you please briefly describe your employment history
22 with the Chicago Police Department.
23 A. Yes. I became a police officer with the Chicago Police
24 Department in 1971. In 1977, I was promoted to the rank of
25 sergeant. As a sergeant, I served in various assignments with
924
DeLopez - direct
1 regard to differing responsibilities in the patrol division,
2 traffic division, training division. Subsequently promoted to
3 the rank of lieutenant in 1984.
4 Served as watch commander in the Wood Street
5 District, the Foster Avenue District, commanding officer of
6 Area 5 Youth. I was then promoted to the rank of district
7 commander in 1985. I have been a district commander and served
8 in the exempt ranks from 1985 to the present.
9 Q. All right. I'd like to focus for a minute on your
10 assignments. As lieutenant you said that you were a field
11 lieutenant and acting watch commander in the 13th District,
12 correct?
13 A. Yes, 13th and 20th Districts.
14 Q. Okay. So you served as a field lieutenant and watch
15 commander in the patrol division?
16 A. That's correct.
17 Q. And did you serve in these capacities on a full-time basis?
18 A. Yes, I did.
19 Q. Could you briefly describe your duties and responsibilities
20 as a field lieutenant in the 13th and 20th Districts?
21 A. Well, my duties as a field lieutenant require me to
22 supervise the activities of the officers and sergeants working
23 in the district, delivery of services, responding to calls for
24 service, giving advice, making recommendations, reviewing
25 reports.
925
DeLopez - direct
1 Q. All right. And could you briefly describe your duties as a
2 watch commander.
3 A. As a watch commander, my duties require me to be
4 responsible for all the activities of the district, both the
5 station, the lockup, and the field activities, reviewing
6 reports, reviewing arrest reports, approval of charges,
7 ensuring the proper treatment and proper processing of persons
8 that were taken into custody by the Chicago Police Department,
9 conducting roll calls, doing roll call inspections, training,
10 guiding police officers and supervisors.
11 Q. Okay. And as watch commander, did you address your
12 subordinates orally?
13 A. Yes, I did.
14 Q. Did you make oral presentations?
15 A. Yes.
16 Q. And what did your making oral presentations to your
17 subordinates require you to do?
18 A. It required me to review material, analyze the material,
19 and sometimes summarize the material orally to these officers
20 or the supervisors with the intent of making them aware of
21 certain provisions of our directives or policies or procedures.
22 Q. Did you ever make oral presentations at roll call?
23 A. Yes.
24 Q. What other circumstances under which did you make oral
25 presentation to your subordinates?
926
DeLopez - direct
1 A. Public forums, public meetings, sometimes with regard to
2 field activities with direction and guidance at major incidents
3 and interviews with the media.
4 Q. So did you only address your officers by reading from a CO
5 book at roll call?
6 A. No. I did not.
7 Q. I believe that you testified that you have served as a
8 district commander of the 14th District, is that --
9 A. One of the districts was the 14th District. It was my
10 first command.
11 Q. Okay. And after that, what was your next position?
12 A. After that I was -- I was promoted to the position of
13 deputy chief of patrol.
14 Q. Now, were your duties as a district commander of the 14th
15 District essentially the same as they are now as a district
16 commander in the 23rd District?
17 A. Yes.
18 Q. After district commander of the 14th District -- I'm sorry,
19 did you tell me what was your next position with the CPD?
20 A. Deputy chief of patrol.
21 Q. Following that?
22 A. Following that I was assigned as district commander of the
23 10th District.
24 Q. Okay. And your duties as district commander of the 10th
25 District were essentially the same as they are now as the
927
DeLopez - direct
1 district commander of the 23rd District?
2 A. Yes.
3 Q. What was your next position?
4 A. I was assigned as the director of the training academy.
5 Q. And for how long did you hold that position?
6 A. Approximately three years, 1992 to 1995.
7 Q. Does that bring us to your current position as district
8 commander for the 23rd District?
9 A. Yes, yes, it does.
10 Q. And are the duties and responsibilities of the watch
11 commander and field lieutenants who served under you in your
12 capacity as district commander of the 23rd District essentially
13 the same duties and responsibilities as you held as a watch
14 commander and field lieutenant?
15 A. Essentially, yes.
16 Q. And are they different in any way?
17 A. Currently they are because of the implementation of CAPS.
18 Q. And could you explain how they are different?
19 A. Well, with the implementation of CAPS, it's a philosophical
20 change in the police department. It requires that police
21 officers, sergeants and lieutenants and captains have a greater
22 interaction with the public, identify problems, strategize ways
23 with which to address these problems.
24 We've increased contact with the public and more
25 responsibility for results.
928
DeLopez - direct
1 Q. Now, in your position as district commander, have you had
2 occasion to observe lieutenants report to you communicating
3 orally?
4 A. Yes.
5 Q. Under what circumstances have you observed them
6 communicating orally?
7 A. Well, at roll call training certainly and conducting the
8 roll call process, in some of these public meetings which I
9 mentioned that they have more responsibility for now, in
10 conduct of their sector and beat team meetings also.
11 Q. Those were all communications that are in association with
12 the CAPS program that you just described?
13 A. Not the roll call process necessarily, no, but the other
14 ones, yes.
15 Q. Okay. And are oral communications important to the
16 position of lieutenant?
17 A. Yes.
18 Q. Have you -- what process, if any, have you observed the
19 lieutenants who you supervised using to make their oral
20 presentations?
21 MR. FLAXMAN: Objection. I think it's too vague.
22 THE COURT: Overruled.
23 BY THE WITNESS:
24 A. With regard to preparation for or presentation at roll
25 call?
929
DeLopez - direct
1 BY MS. DORN:
2 Q. Yes.
3 A. They have been given materials to read, to analyze, to
4 summarize, and then to conduct the process of the training
5 itself.
6 With regard to meetings or presentations with the
7 public, similar process. They're required to integrate
8 information, analyze reports, statistical data, go to that
9 meeting, conduct that meeting in such a fashion that it's
10 directed toward identifying significant problems, and then
11 beginning to address those problems with some sort of
12 strategies.
13 Q. Commander, you testified earlier about the CAPS program.
14 Could you describe a lieutenant's role with respect to that
15 program?
16 A. With respect to the lieutenant's role as the sector team
17 leader, he or she would be responsible for coordinating the
18 beat teams, which are comprised of a sergeant and several beat
19 officers.
20 Their objective is to stay focused on identification
21 of problems, analyzing the problems, solutions to those
22 problems, identification of resources, which would impact on
23 the problems, basically being very results oriented.
24 With regard to other duties, the lieutenant might be
25 responsible to be a watch commander or a watch operations
930
DeLopez - direct
1 lieutenant and, therefore, assume the duties formerly performed
2 by captains.
3 Q. Now, how many police lieutenants are there in the patrol
4 division of the Chicago Police Department?
5 A. It's an approximate -- it would be an approximation,
6 approximately 245, 250.
7 Q. And can you tell me how many -- approximately how many
8 police officers there are in the patrol division?
9 A. Oh, approximately 8500 to 9,000,
10 Q. Commander DeLopez, based on your experience as lieutenant
11 and as a district commander, in your opinion is the job of
12 lieutenant an important position within the Chicago Police
13 Department?
14 MR. FLAXMAN: Objection. Mr. DeLopez has not been
15 designated as an expert by the defendants in this case.
16 MS. DORN: Your Honor --
17 THE COURT: Is there any question about the answer to
18 that?
19 MR. FLAXMAN: Not to this one. But I think we're
20 going to get a whole series more, and I want to stop it now.
21 We will stipulate that being a lieutenant is important. But
22 Mr. DeLopez should not be allowed to give opinions without
23 designation and a report.
24 MS. DORN: Your Honor, Mr. DeLopez was a subject
25 matter expert. He has vast experience within the Chicago
931
DeLopez - direct
1 Police Department. He has a lot to say about -- he can speak
2 to, certainly more than any plaintiff, the importance of this
3 position and why we're here.
4 THE COURT: I think he has to do that as an
5 occurrence witness, not as an expert. He's not been
6 designated. There has been no opportunity for the other side
7 to regard him as an expert. I'll take a lot of what he says,
8 obviously, based on his experience. And we have that gray area
9 of lay witnesses or nonexperts giving opinions about what they
10 do.
11 But I think Mr. Flaxman has a point. We're not going
12 to get too far into opinion testimony with this witness. He
13 was a subject matter expert. So he could certainly testify as
14 to what he did as a subject matter expert, which of course
15 allows him to testify about the application of his opinions and
16 his experience to that task. But I think that's about where it
17 ends.
18 BY MS. DORN:
19 Q. Commander DeLopez, in your career as a police officer, have
20 you had a role in the development of promotional exams?
21 A. Yes, I have.
22 Q. And what exams have you helped to develop?
23 A. I've been involved with the 1993 sergeants exam and the
24 1994 lieutenants exam.
25 Q. Let's focus on the 1994 lieutenants exam. What was your
932
DeLopez - direct
1 role in the development of that exam?
2 A. I was designated as a subject matter expert to review
3 materials, including the referenced reading list, and the test
4 question items on the written test and the in-basket exam.
5 Q. All right. Did you work with Barrett & Associates as a
6 subject matter expert?
7 A. Yes, I did.
8 Q. First of all, can you tell me where did you do your work as
9 a subject matter expert?
10 A. We did that work in Akron, Ohio.
11 Q. And how many times did you go to Akron, Ohio?
12 A. Twice.
13 Q. Where did you go in Akron, Ohio?
14 A. We went to the offices of Barrett & Associates.
15 Q. On those two occasions that you went to Akron, Ohio, how
16 long did you stay?
17 A. Each period requires a stay of several days. I don't
18 recall exactly how many days.
19 Q. Who else from the Chicago Police Department was involved in
20 the review process as a subject matter expert, if anyone?
21 A. That was former Deputy Chief John Cadogan, at the time
22 General Counsel John Klein, and Deputy Chief William Shaw.
23 Q. Now, you testified that you reviewed the testing materials
24 prepared by Barrett & Associates?
25 A. Some of them, yes.
933
DeLopez - direct
1 Q. Some of them.
2 What components of the exam did you review?
3 A. The written test items and the in-basket.
4 Q. Focusing on the written job knowledge test and the
5 in-basket simulation, what did you review those testing devices
6 for specifically?
7 A. We reviewed those for relevancy to the position of a
8 lieutenant. We also reviewed those to ensure that they were
9 properly referenced to the source materials that the candidates
10 were requested to review and have knowledge of.
11 Q. Was there any review for accuracy?
12 A. Yes, also for accuracy.
13 And for a proper understandable language which should
14 be language in the context of the directives that they were
15 referencing to.
16 Q. Thank you.
17 When you were reviewing the in-basket and written job
18 knowledge components of the exam, did you have access to any
19 reading list for the exam?
20 A. I'm sorry. I couldn't hear what you said.
21 Q. I'm sorry. I'll repeat it.
22 When you were reviewing the in-basket and the written
23 job knowledge examination that Barrett & Associates was
24 preparing, did you have access to any reading list?
25 A. Yes, we did.
934
DeLopez - direct
1 Q. And how did you use the reading list in conducting your
2 review?
3 A. Used it as a reference to ensure that the materials listed
4 on that reading list were both current at the time, and also
5 that the questions were taken from materials that were listed
6 on that reading list.
7 Q. I'm now presenting you with what's marked as Defendant's
8 Exhibit 20. Commander DeLopez, this is Defendant's Exhibit 20,
9 which was previously introduced. Do you recognize this
10 document?
11 A. Yes.
12 Q. And what is that?
13 A. It appears to be the recommended reading list for the
14 Chicago police lieutenants promotional test dated September 12,
15 1994.
16 Q. And is that part one of the documents that you reviewed as
17 a subject matter expert?
18 A. Yes.
19 Q. And in determining whether or not the test materials were
20 appropriate?
21 MR. FLAXMAN: Object to leading.
22 THE COURT: I'll let her lead for this purpose.
23 BY THE WITNESS:
24 A. Yes, correct.
25 BY MS. DORN:
935
DeLopez - direct
1 Q. What's the date on the reading list?
2 A. September 12th, 1994.
3 Q. Now, were your trips to Akron, Ohio after September 12th,
4 1994?
5 A. Yes.
6 Q. And do you recall when those trips occurred?
7 A. Specific dates, no. October was the month. October '94.
8 Q. Okay. And what was your understanding of the purpose of
9 the source material on the reading list with respect to the
10 lieutenants exam?
11 A. It was material that the candidates for the position of
12 lieutenant were requested to review and have knowledge of in
13 order to be able to perform on the stated exam.
14 Q. And was it your understanding that the candidates would be
15 tested on the materials?
16 MR. FLAXMAN: Object to the leading, Judge.
17 THE COURT: Sustained.
18 MR. FLAXMAN: Thank you.
19 BY MS. DORN:
20 Q. Did you have any other understanding with respect to the
21 purpose of the source materials?
22 A. Yes. This is material that the candidates were going to be
23 tested on to determine their performance on the various phases
24 of the exam process.
25 Q. Commander DeLopez, as a subject matter expert, what
936
DeLopez - direct
1 opinion, if any, did you form as to whether the items on the
2 source list were important for the performance of the job of
3 lieutenant?
4 MR. FLAXMAN: Objection. He could be asked if he
5 formed an opinion back then, before he is asked what opinion he
6 did form and whether forming an opinion was part of his job as
7 a subject matter expert.
8 THE COURT: I think that that's a good point. You
9 should define his area of responsibility as a subject matter
10 expert before you get into any of this.
11 MS. DORN: Okay.
12 BY MS. DORN:
13 Q. Commander DeLopez, did you form an opinion as to whether
14 the items on the source list were important for the performance
15 of the job of lieutenant?
16 A. Yes.
17 Q. And what opinion did you perform?
18 MR. FLAXMAN: Objection. Still we haven't
19 established that that was part of his job as the subject matter
20 expert.
21 THE COURT: Was it part of your job as a subject
22 matter expert?
23 THE WITNESS: Your Honor, one of the responsibilities
24 we had was to review this material to ensure prior to actually
25 formulating the exam that these were relevant documents and
937
DeLopez - direct
1 materials, yes.
2 THE COURT: I thought he said that before, actually.
3 MR. FLAXMAN: I --
4 THE COURT: Okay. Go ahead.
5 MR. FLAXMAN: If he said it before, it's been asked
6 and answered. But I --
7 THE COURT: You can't have it both ways, Mr. Flaxman.
8 All right. I think the proper foundation has been laid for the
9 question.
10 Go ahead. Ask the question again now.
11 BY MS. DORN:
12 Q. And as a subject matter expert reviewing the test materials
13 prepared by Barrett & Associates, what determinations, if any,
14 did you make regarding whether the test materials related to
15 the materials on the source material reading list?
16 MR. FLAXMAN: That's been asked and answered. I
17 think he said that each question --
18 THE COURT: All right. Let him answer it again.
19 MR. FLAXMAN: All right.
20 BY THE WITNESS:
21 A. Could you restate that one more time, please.
22 BY MS. DORN:
23 Q. As a subject matter expert reviewing the test materials
24 prepared by Barrett & Associates, what determinations, if any,
25 did you make as to whether the test materials related to the
938
DeLopez - direct
1 materials contained on the source material reading list?
2 A. That they did.
3 Q. And how did you determine this?
4 A. By referencing the source reading list and reviewing the
5 exam questions.
6 Q. With respect to the written job knowledge test, can you
7 describe what your review process was like for those exam
8 materials?
9 A. Yes.
10 We were teamed up with employees of Barrett &
11 Associates and reviewed both the stem and the alternatives that
12 had been prepared from the source documents. Sometimes if
13 there was any discussion necessary -- two of us would be
14 working in one room, two of the subject matter experts. Two
15 would be working in another room. And we would each be working
16 with one of the Barrett associates.
17 We would then make recommendations for either
18 modification to either the stem or to the alternatives. We
19 would in some cases make recommendations for corrections or
20 deletions and an appropriateness to the particular order that
21 was referenced or department directive or such cite.
22 Q. All right. And how many of the -- do you know how many
23 written items you reviewed?
24 A. No. There were a lot, I know that.
25 Q. Was it more than 150?
939
DeLopez - direct
1 A. Yes.
2 Q. What determination -- no. Strike that.
3 Did you evaluate whether the test questions were
4 appropriate testing material for candidates for the position of
5 lieutenant?
6 MR. FLAXMAN: Objection. This seems like an
7 industrial psychologist question.
8 THE COURT: Well --
9 MR. FLAXMAN: He's --
10 MS. DORN: He's a former lieutenant.
11 THE COURT: -- within the context of his subject
12 matter expert role.
13 MR. FLAXMAN: Well, let me object. What does
14 "appropriate" mean? Appropriate for a test, appropriate --
15 that's my objection to the question.
16 THE COURT: Overruled.
17 BY THE WITNESS:
18 A. Could I have that once again, please.
19 BY MS. DORN:
20 Q. Did you evaluate whether the test questions were
21 appropriate testing materials for the candidates of the
22 position of lieutenant in the CPD?
23 A. Yes.
24 Q. And what determination did you make after making that
25 evaluation?
940
DeLopez - direct
1 A. I felt that they were appropriate for the position of a
2 lieutenant.
3 Q. Now, I believe that you testified as to how you went about
4 reviewing the written test questions. Did you also evaluate
5 the questions on different levels?
6 A. I'm not sure I understand the question.
7 Q. With respect to the written exam questions, was there any
8 review -- did you review the questions for relevance?
9 MR. FLAXMAN: Asked and answered.
10 THE COURT: I think he already stated that he has.
11 BY MS. DORN:
12 Q. What did you mean when you said that you reviewed the
13 questions for relevance?
14 MR. FLAXMAN: Objection.
15 THE COURT: I'm not sure what it means either. I'll
16 let him answer.
17 Do you understand the question?
18 THE WITNESS: Yes, I do, Your Honor.
19 THE COURT: Okay, go ahead.
20 BY THE WITNESS:
21 A. That they were related to the duties and responsibilities
22 with which a lieutenant might have to perform or fulfill.
23 BY MS. DORN:
24 Q. Was there any review of the alternative answers for the
25 questions?
941
DeLopez - direct
1 A. Yes, there was.
2 Q. And what did that review entail?
3 A. That review entailed looking at the particular cited
4 alternatives to ensure that there was no obviously implausible
5 answer, number one, and to also ensure the accuracy with regard
6 to the alternative, and to also ensure that there would not be
7 two alternatives that could be construed as the best answer.
8 Q. I believe that you testified that you reviewed the stems of
9 the questions --
10 A. Yes.
11 Q. -- as well?
12 And what for?
13 A. Again, stems for grammatical correctness, for
14 identification and relevance or relation to the actual cited
15 reference from the reading list and for relation to the
16 position of a lieutenant so that it was a question that would
17 be again relevant, as I stated earlier.
18 Q. All right. All right. We've talked about some in detail
19 of your review of the written test questions.
20 Based on your review of the written materials, did
21 you make any suggestions regarding the materials?
22 A. Yes.
23 Q. And what types of suggestions did you make?
24 A. Well, in some cases it was a modification of either the
25 stem or the alternatives, corrections to them, recommendations
942
DeLopez - direct
1 for, I believe, deletions in some cases of questions.
2 Q. Do you know if your suggestions were incorporated by
3 Barrett & Associates?
4 A. I believe they were.
5 Q. And on what are you basing your belief that Barrett &
6 Associates incorporated your suggested changes?
7 A. Well, the process I described, as we worked with one of the
8 associates from Barrett & Associates, they actually sat at a
9 computer terminal. And as we made recommendations for
10 modification or change, they entered all this information into
11 a data file.
12 Q. Having reviewed the written exam items that you did review,
13 did you formulate an opinion as to whether the information
14 contained in those questions was information that a lieutenant
15 needed to know?
16 MR. FLAXMAN: Objection. If this is a new opinion,
17 it's beyond his subject matter -- his occurrence witness. If
18 it's an old opinion, it's been asked and answered.
19 MS. DORN: I don't believe it's been asked and
20 answered.
21 THE COURT: Well, I think it's very close to some
22 former questions. I'll let him answer.
23 Go ahead. Overruled.
24 BY THE WITNESS:
25 A. Yes.
943
DeLopez - direct
1 BY MS. DORN:
2 Q. And what was your opinion?
3 A. It was related.
4 Q. Did you form an opinion as to whether the items covered
5 important knowledge, skills, and abilities for a lieutenant?
6 MR. FLAXMAN: Objection. That's an industrial
7 psychologist question.
8 THE COURT: You haven't laid a foundation for him to
9 be able to answer that question. Sustained. I sustained your
10 objection.
11 MR. FLAXMAN: Thank you.
12 BY MS. DORN:
13 Q. Commander DeLopez, you've worked as lieutenant, have you
14 not?
15 A. Yes.
16 Q. And you've also supervised lieutenants?
17 MR. FLAXMAN: Objection, asked and answered.
18 THE COURT: Well, she's laying a foundation, or
19 trying to. Overruled.
20 BY THE WITNESS:
21 A. Yes.
22 BY MS. DORN:
23 Q. Okay. And in your review of the written job knowledge test
24 for the position of lieutenant, did you form an opinion as to
25 whether the items covered important knowledge, skills, and
944
DeLopez - direct
1 abilities for a lieutenant?
2 MR. FLAXMAN: Objection. Dr. Barrett has testified
3 that to know what's important, the important KSAs, you have to
4 do a job analysis. You don't have to do that when you just ask
5 somebody.
6 THE COURT: Well, you're using a term of art.
7 "Knowledge, skills, and abilities" is a term of art that was
8 used by Dr. Barrett and is used in this field. And Mr. Flaxman
9 is right that it's a term of art that requires some knowledge
10 and experience in applying. And I don't think this witness has
11 been qualified to testify about that. So I'm sustaining your
12 objection.
13 BY MS. DORN:
14 Q. Okay. Did you form an opinion as to whether the items
15 covered information that a lieutenant needs to know and
16 understand?
17 MR. FLAXMAN: Object. That's been asked and
18 answered.
19 THE COURT: I think so. Sustained.
20 BY MS. DORN:
21 Q. Have you seen the written job knowledge test which was
22 actually given to the lieutenant candidates?
23 A. Yes.
24 Q. And when did you see this test?
25 A. Oh, approximately a week and a half to two weeks ago.
945
DeLopez - direct
1 Q. Okay. And did you review the 150 questions on that test?
2 A. Yes.
3 Q. Did you form an opinion as to whether the materials which
4 were on the final test tested items which a lieutenant needs to
5 know?
6 A. Yes.
7 MR. FLAXMAN: Objection. That's an opinion, not from
8 what he did as a -- in making up the test. That's an opinion
9 in litigation.
10 THE COURT: Well, but he helped, he helped create
11 this test. He played a part in it. I'll take his opinion on
12 it. Overruled.
13 BY MS. DORN:
14 Q. And what was your opinion?
15 A. That it did relate, they did relate.
16 Q. And what was your opinion with respect to whether the test,
17 the final exam tested information which was important to the
18 job of lieutenant?
19 MR. FLAXMAN: Objection. He's now being asked about
20 the industrial psychologist question, to validate -- give an
21 opinion about whether the exam is job related as valid.
22 THE COURT: I'll take it for what it's worth,
23 Mr. Flaxman.
24 BY THE WITNESS:
25 A. One more time, please.
946
DeLopez - direct
1 BY MS. DORN:
2 Q. What was your opinion as to whether the final test tested
3 information which was important to the job of lieutenant?
4 A. That it did.
5 Q. In your role as subject matter expert for the 1994
6 lieutenants exam, you also reviewed the in-basket exercise, is
7 that correct?
8 A. Yes.
9 Q. And with respect to the in-basket exercise, would you
10 describe your review process as a subject matter expert for
11 that portion of the exam?
12 A. Much the same as the process I described for the written
13 item job knowledge test. We would again work with one of the
14 associates from Barrett. We would review the materials. We'd
15 make recommendations. Those recommendations would be recorded
16 by that associate.
17 If there was some question regarding an item, whether
18 it be the stem itself, an alternative, or any other aspect of
19 the question, we would -- in some cases the two subject matter
20 experts in the room would discuss the item and make a
21 recommendation.
22 Q. Was there any review by you to determine whether the
23 materials were complete and accurate?
24 A. Yes.
25 Q. Were there multiple-choice questions for the exercise which
947
DeLopez - direct
1 you reviewed?
2 A. Yes.
3 Q. And could you describe the review process for those
4 multiple-choice questions?
5 A. Again, much like I have stated earlier, we would review the
6 stem to ensure that it was related to one of the cited
7 references that the candidates were requested to study and be
8 aware of and have knowledge of, also for accuracy, for
9 grammatical correctness, for language which would be
10 understandable by the candidates.
11 And the same with the stems, again, looking that
12 there might be no stem that would be too obviously implausible.
13 There wouldn't be two items that would both be the best item
14 for selection.
15 Q. And did you also review the written materials or documents
16 in the in-basket exercise?
17 A. Yes.
18 Q. What did you review those materials for?
19 A. To determine whether or not those would be items which a
20 candidate would be expected to review, to be expected to see,
21 something that a lieutenant or a watch commander would have
22 access to or would be reviewing in the normal course of their
23 duties and responsibilities.
24 Q. And overall did you find that those materials were similar
25 to materials and forms used by the Chicago Police Department?
948
DeLopez - direct
1 A. Yes.
2 Q. Commander DeLopez, within your packet, could you flip to
3 Defendant's Exhibit 15. I'll give you a moment to look at
4 that.
5 This was previously marked and admitted as
6 Defendant's 15.
7 A. Okay.
8 Q. Commander DeLopez, do you recognize this document?
9 A. Yes, I do.
10 Q. What is it?
11 A. It's the Chicago police lieutenants in-basket simulation
12 exercise.
13 Q. All right. During the course of your review of the
14 in-basket exercise, did you assess whether the exercise was
15 similar to tasks that a lieutenant would face on the job?
16 MR. FLAXMAN: Objection.
17 BY THE WITNESS:
18 A. Yes.
19 MS. DORN: Grounds?
20 MR. FLAXMAN: He testified about looking at the
21 materials, looking at the questions. Now, talking about the
22 test is making a judgment about whether the construct of the
23 simulation is dissimilar to what somebody does, which is a
24 industrial psychologist question.
25 THE COURT: Well, but I think he was, at least in
949
DeLopez - direct
1 part, being used to give his input on that very subject.
2 Overruled.
3 BY MS.DORN:
4 Q. Okay. I believe you said that you did form an opinion?
5 A. Yes.
6 Q. All right. What was your opinion?
7 A. That these are materials that we could readily expect a
8 lieutenant to review in the course of his or her duties and to
9 make decisions on.
10 Q. Turning your attention to a document which is Bates stamped
11 8462, within the in-basket exercise. Now, is this one of the
12 documents from the -- do you recognize this as being one of the
13 documents from the in-basket exercise?
14 A. Yes.
15 Q. And what does this document describe, Commander?
16 A. This is a to/from/subject report to the watch commander
17 from the district commander.
18 Q. With respect to the actual in-basket exercise itself, what
19 does this document set out?
20 A. This document is identifying a list of tasks or
21 responsibilities which the lieutenant candidate must perform.
22 The tasks include on here to complete a weapons
23 discharge investigation, a summary punishment investigation, a
24 complaint register investigation, complete duty assignments for
25 sergeants, conduct an administrative review and perform some
950
DeLopez - direct
1 scheduling.
2 Q. Okay. Commander DeLopez, do lieutenants serving in the
3 position of watch commander actually conduct, first, weapons
4 discharge investigations?
5 A. Yes.
6 Q. Summary punishment investigations?
7 A. Yes.
8 Q. Complaint register investigations?
9 A. Yes.
10 Q. Do they assign counseling and other duties to sergeants?
11 A. Yes, they do.
12 Q. Do they conduct administrative reviews of arrest reports?
13 A. Yes.
14 Q. And do they review scheduling assignments for --
15 A. Yes, they do.
16 Q. -- police officers under them?
17 They do?
18 A. Yes.
19 Q. And do they also handle documents and other information
20 relating to their duties in each of these areas?
21 A. Yes.
22 MR. FLAXMAN: Object to the leading.
23 THE COURT: He's already answered it. I assume
24 that --
25 MS. DORN: I'm trying to move this forward.
951
DeLopez - direct
1 THE COURT: I understand. I'll let you do it this
2 time, but try to keep the leading questions down, please.
3 BY MS. DORN:
4 Q. In your experience as lieutenant, as a lieutenant and watch
5 commander, district commander, have you ever been involved in a
6 weapons discharge investigation?
7 A. Yes.
8 Q. Have you ever been involved in a summary punishment
9 investigation?
10 A. Yes.
11 Q. Have you ever been involved in a complaint register
12 investigation?
13 A. Yes.
14 Q. Have you been involved in each of the items listed on 8462?
15 A. Yes.
16 Q. Now, turning to weapons discharge investigations, what role
17 does a lieutenant have with respect to those investigations?
18 A. The lieutenant as a field lieutenant has a responsibility
19 to immediately respond to all weapons discharge incidents,
20 assume the responsibility for the proper conduct of the
21 investigation and submission of a report upon completion of
22 that investigation.
23 As the watch commander, he also or she also has the
24 responsibility for oversight of the investigation and keeps
25 that responsibility through any subsequent formal investigation
952
DeLopez - direct
1 if there were a person that was struck by the officer in the
2 weapons discharge.
3 Q. Now, are documents which a lieutenant would handle in a
4 weapons discharge investigation in the in-basket exercise?
5 A. I need to refer to the exercise.
6 Yes, there are some.
7 Q. And could you point out some of those documents.
8 A. They're marked by, I believe, it's Bates stamp 8480, a
9 to/from/subject report. 8481; 8482, a weapons discharge
10 report; and 8483, injury on duty report.
11 Q. Okay.
12 A. There is also a case report, 8484.
13 Q. Turning to summary punishment investigations, what role
14 does a lieutenant have in a summary punishment investigation?
15 A. Well, if the accused person was a subordinate sergeant of
16 the lieutenant, the lieutenant would actually conduct the
17 investigation for all the matters that a lieutenant must review
18 for proper investigation and proper procedure any complaint
19 register investigations submitted through the chain of command.
20 Q. And what types of documents would a lieutenant handle with
21 respect to summary punishment investigations?
22 A. Forms such as a complaint against a department member,
23 notification of allegations and charges, administrative rights
24 forms, to/from/subject reports, disciplinary history,
25 complimentary history.
953
DeLopez - direct
1 Q. Turning your attention to document Bates stamped 8489, is
2 this the type of document which a lieutenant might handle with
3 respect to a summary punishment investigation?
4 A. Yes. It's a summary punishment action request form.
5 Q. And what would the lieutenant's role be with respect to
6 this type of document?
7 A. To review this for accuracy, number one, and also to
8 approve the application of summary punishment, ensuring that it
9 was an appropriate form of disciplinary action versus some
10 other method of resolving the matter.
11 Q. Turning to complaint register investigations, what role
12 does a lieutenant have with respect to CR investigations?
13 A. Repeat that, what role does he have --
14 Q. What role does a lieutenant have with respect to complaint
15 register investigations?
16 A. To, again, review those investigations for adherence to
17 department policy, for accuracy, to review -- to ensure that
18 they are being conducted in a timely fashion, and to give
19 advice or guidance to the supervisor conducting the
20 investigation.
21 Q. And are documents which a lieutenant would handle in such
22 an investigation in the in-basket exercise?
23 A. Yes.
24 Q. Take a moment to look. Looking at 8505 and 8506.
25 A. As I stated earlier, the complaint against department
954
DeLopez - direct
1 member form, such as is in the packet here, 8505;
2 administrative proceeding, 8506.
3 Additional items would be items such as the complaint
4 against the department member, notification of allegations,
5 those types of forms.
6 Q. Okay. What role does a lieutenant have with respect to
7 duties -- making duty assignments for sergeants?
8 A. The lieutenant as the watch commander or watch operations
9 lieutenant has to ensure the proper manning of the watch
10 complement. He has to ensure that there are sufficient
11 personnel available for assignment to ensure that we are
12 capable of performing our duties and functions of providing
13 police services to our community.
14 Q. All right. And does a document -- does a lieutenant also
15 handle documents with respect to his or her duties in making
16 assignments for sergeants?
17 A. Yes.
18 Q. What types of documents are handled in connection with
19 that?
20 A. They would look at unit rosters, watch assignments, watch
21 complement forms.
22 Q. With respect to reviewing arrest reports, what role does a
23 lieutenant have with respect to reviewing such reports?
24 A. He'll review them for completion, for accuracy, for
25 probable cause for the particular charge being sought.
955
DeLopez - direct
1 Q. And are there documents within the in-basket exercise which
2 relate to a lieutenant's role in reviewing arrest reports?
3 A. Yes, there are.
4 Q. Could you identify some of those documents?
5 A. Well, again, Bates stamp 8518 is a to/from/subject report
6 referencing arrest reports. 8519 is an arrest report. 8520 is
7 an arrest report. 8521 is an arrest report.
8 Q. Are the reports that you've just looked at, are those
9 reports similar to documents which are used by the Chicago
10 Police Department?
11 A. Yes.
12 Q. Manpower scheduling, what role does a lieutenant have with
13 respect to manpower scheduling?
14 A. The lieutenant as the watch commander has to ensure that
15 there are sufficient number of police officers to man the
16 minimal number of beats and other assignments that a district
17 is charged with according to the manpower allocation plan and,
18 again, to ensure that there is sufficient number of police
19 officers available to perform the responsibility that the
20 district has with regard to delivery of public services and
21 protection of life and property.
22 Q. What types of documents are involved with respect to
23 manpower scheduling?
24 A. Well, again, there would be a watch complement form. There
25 would be a district or a unit roster of personnel. In some
956
DeLopez - direct
1 cases, comp time, compensatory time would either be time due
2 used or time due accrued, which also would have to be
3 referenced. Use of personal days would also go on that form.
4 Q. Turning your attention to documents Bates stamped 8527,
5 8528, do those documents relate to manpower scheduling?
6 A. Yes. These are to/from/subject reports identifying
7 manpower needs.
8 Q. All right. We talked about a few of the documents which
9 were in the in-basket exercise. In your role as a subject
10 matter expert, did you have -- did you form an opinion as to
11 whether the materials in the in-basket exercise are similar to
12 the forms, types of forms that one would -- that a lieutenant
13 would handle in the various areas the exercise covers?
14 MR. FLAXMAN: Objection, asked and answered.
15 THE COURT: I don't think -- I think this is all
16 inclusive. Overruled.
17 BY THE WITNESS:
18 A. Once more, please.
19 BY MS. DORN:
20 Q. All right. In your role as a subject matter expert, did
21 you form an opinion as to whether the materials in the
22 in-basket exercise were similar to the types of forms that one
23 would handle in the various areas --
24 A. Yes.
25 Q. -- that the exercise covered?
957
DeLopez - direct
1 And what was your opinion?
2 A. That they were very similar.
3 Q. In your experience as a lieutenant or watch commander or
4 district commander, have you observed or been involved in
5 circumstances where one lieutenant or watch commander completes
6 an investigation started by another?
7 A. Yes, that's happened on occasion.
8 Q. Could you provide any examples of that?
9 A. A situation where a watch commander would be suddenly taken
10 ill or injured and would have to be replaced by another
11 lieutenant, in cases where a particular responsibility would
12 take that watch commander away from the current unit assignment
13 and have to fulfill a responsibility somewhere else and
14 somebody else would have to fulfill his or her duties at the
15 district assigned location.
16 Q. So what opinion did you form, if any, as to whether the
17 in-basket exercise was unrealistic in setting up a situation
18 where a lieutenant must step in to complete the work of another
19 lieutenant?
20 MR. FLAXMAN: Objection. There is no foundation that
21 that was part of his job as a subject matter expert. If he's
22 being asked now to give an opinion about whether that -- then
23 that should have been disclosed that he's an expert.
24 THE COURT: Overruled.
25 BY THE WITNESS:
958
DeLopez - direct
1 A. I formed an opinion that it was realistic, and it would be
2 something that could be experienced by a lieutenant.
3 BY MS. DORN:
4 Q. When you reviewed the in-basket materials, did you
5 recommend any changes to the in-basket materials?
6 MR. FLAXMAN: Asked and answered.
7 THE COURT: Sustained.
8 How much longer do you have, counsel, on direct?
9 MS. DORN: Actually, I can take a break now. I don't
10 have that much longer.
11 THE COURT: All right. Let's take a five-minute
12 break.
13 (Recess.)
14 THE COURT: Please be seated.
15 BY MS. DORN:
16 Q. All right. Commander DeLopez, let's return for a moment to
17 the written job knowledge test.
18 Now, you reviewed the questions on the written job
19 knowledge test you testified previously?
20 A. Yes.
21 Q. And do you think that lieutenants can look up the answers
22 to the kinds of questions that were present on the written job
23 knowledge test?
24 A. Well, it wouldn't be practical.
25 Q. Okay. And why not?
959
DeLopez - direct
1 A. In some cases we're dealing with issues that pertain to
2 decisions which would affect protection or violation of
3 constitutional rights, expediency or exigent circumstances with
4 regard to protecting life or property, proper and accurate
5 information, on-the-scene on-the-spot decision making, critical
6 decisions, situations like that.
7 Q. Okay.
8 A. Another comment being that if we're talking about a field
9 assignment, the sheer volume of the material that we're talking
10 about would make it pretty difficult to carry that many
11 reference items with you in a police vehicle.
12 Q. All right. I'm going to give you what's previously been
13 marked Plaintiffs' Exhibit 78. Okay. You're on Plaintiffs'
14 Exhibit 78?
15 A. Pardon me?
16 Q. Are you -- I've handed you what's marked as Plaintiffs'
17 Exhibit 78.
18 A. Yes, I have it.
19 Q. Okay. Now, this is question 48 from the written
20 lieutenants exam. Can you tell --
21 THE COURT: Give Mr. Flaxman a moment.
22 BY THE WITNESS:
23 A. Can I have a second to read it?
24 BY MS. DORN:
25 Q. Yes.
960
DeLopez - direct
1 THE COURT: Are you looking for the exhibit?
2 MR. FLAXMAN: Yes. I thought you said Defendant's 7
3 and 8.
4 THE COURT: Plaintiffs' 78.
5 MS. DORN: Plaintiffs' Exhibit 78.
6 THE COURT: That's fine.
7 BY THE WITNESS:
8 A. Okay.
9 BY MS. DORN:
10 Q. Can you tell us, Commander, what this question is about?
11 A. This question refers to --
12 THE COURT: Which question is it?
13 MS. DORN: It is question -- it's question 48 from
14 the written exam.
15 BY THE WITNESS:
16 A. This question sets out a set of circumstances which are
17 brought to the attention of a watch operations lieutenant with
18 regard to some unusual behavioral traits that are observed with
19 regard to one of the police officers that the watch operations
20 lieutenant is responsible for. It makes it apparent that there
21 is a strong possibility that there may be some drug abuse
22 involved here.
23 BY MS. DORN:
24 Q. And is the information that the question relates to
25 something that a lieutenant needs to know?
961
DeLopez - direct
1 A. Yes.
2 Q. Why is that?
3 A. For many reasons, one being that he or she must take some
4 immediate and appropriate action and must be aware of what that
5 action should be in light of the fact that we give police
6 officers a pretty great responsibility with regard to making
7 decisions over depriving a person of their rights or their
8 freedom, in some cases the decision that they can make to take
9 a life.
10 And with regard to responsibilities of watch
11 commanders, watch commanders have the responsibility to observe
12 and to make decisions on the performance of their individual
13 officers.
14 Q. And why is C the correct answer to 48?
15 A. Well, there is some exigency here with regard to that
16 officer appearing as quickly as possible when scheduled for a
17 mandatory physical exam.
18 Also, the mandatory physical exam is one in which the
19 officer needs to be there at the designated time in order to
20 not allow that officer to circumvent the process. Timeliness
21 is important. The proper notification is important if we're
22 going to ensure that.
23 Q. And why is A not the correct answer to 48?
24 A. Well, the watch commander, watch operations lieutenant
25 wouldn't be scheduling.
962
DeLopez - direct
1 Q. All right. Turning your attention to Plaintiffs' Exhibit
2 80.
3 A. Okay.
4 Q. Which is question number 53 from the written exam.
5 A. Yes.
6 Q. Would you take a moment to read that question.
7 (Pause.)
8 BY THE WITNESS:
9 A. Okay.
10 BY MS. DORN:
11 Q. What is question 53 testing on?
12 A. Knowledge of the proper procedure to follow in the event
13 that someone is exposed to OC or oleoresin Capsicum spray.
14 Q. Is this something that a lieutenant needs to know?
15 A. Yes, it is.
16 Q. Why is that?
17 A. A lieutenant is responsible for responding to weapons
18 discharge incidents. Weapons discharge incidents will include
19 discharge of OC spray.
20 He or she is also responsible for the care and
21 treatment of persons coming into the custody of the Chicago
22 Police Department, proper care.
23 Q. Commander, why is answer A the correct answer to 53?
24 A. Well, it's one remedy for exposure to OC that is
25 recommended by manufacturers of OC spray. Water is something
963
DeLopez - direct
1 that is readily available throughout the city to all police
2 officers. And in some cases, even that might not be completely
3 necessary, since the effects of OC, according to manufacturers,
4 can be generally dissipated or diminished within 30 minutes.
5 Q. All right. And why is B incorrect?
6 A. Well, it states that you would face the arrestee away from
7 the wind. And one of the recommended procedures is to face the
8 arrestee into the wind.
9 Q. Finally, why is C an incorrect answer to 53?
10 A. We wouldn't normally immediately transport an arrestee to a
11 medical facility unless that person was demonstrating some
12 adverse effects of exposure. This would be a case where
13 someone hasn't responded to any of the other prior recommended
14 measures for decontamination.
15 Q. Let's turn to Plaintiffs' Exhibit 84, which is question 64
16 from the written exam. Please take a moment to read that
17 question.
18 (Pause.)
19 BY THE WITNESS:
20 A. Okay.
21 BY MS. DORN:
22 Q. All right. What is this question testing?
23 A. This is a licensing question that deals with licensing of
24 charitable games.
25 Q. And does it relate to a departmental order?
964
DeLopez - direct
1 A. It tests knowledge with regard to a department special
2 order.
3 Q. Is this -- is the material that's covered in question 64
4 something that a lieutenant needs to know about?
5 A. Yes.
6 Q. And why is that?
7 A. Well, lieutenants have an obligation to make investigations
8 of all occurrences on licensed premises. In addition to that,
9 as I stated earlier, our new philosophy requires that there is
10 more interaction with the public. It's not unlikely that a
11 lieutenant or another supervisor would be queried by a citizen
12 or someone with regard to information about laws or procedures
13 that they would need to know. And they have a right to expect
14 a pretty quick response to their inquiries.
15 Q. Now, turning to Plaintiffs' Exhibit 88, this is question 66
16 from the written exam. Please take a moment to review that
17 question.
18 (Pause.)
19 BY THE WITNESS:
20 A. Okay.
21 BY MS. DORN:
22 Q. All right. What is this question testing on, Commander?
23 A. This tests knowledge with regard to landlord/tenant
24 relations and tests knowledge regarding department special
25 orders and also laws.
965
DeLopez - direct
1 Q. Okay. Now, is this something that a lieutenant needs to
2 know about?
3 A. Yes.
4 Q. And why is that?
5 A. Well, this is not an uncommon situation. A lieutenant or
6 any other supervisor or police officer quite frequently gets
7 called to a scene in landlord/tenant disputes, questions with
8 regard to right of occupancy, situations like that.
9 Q. And should a lieutenant be able to answer this question
10 without looking it up?
11 A. Yes.
12 Q. And why is that?
13 A. To ensure that property rights are protected, to ensure
14 that there is due process, to ensure that persons are not
15 either improperly prohibited from occupying a premise or unduly
16 allowed to occupy a premise and thus depriving the owner or the
17 other person that has a right to that premise from using it.
18 Q. And finally, if you turn to Plaintiffs' Exhibit 100, which
19 is question 122.
20 THE COURT: Excuse me, excuse me, Commander. Look at
21 number E again.
22 Is there a typo in that or is that the way this
23 sentence was actually written on the test?
24 THE WITNESS: With regard to "if the unit is absent
25 for 32 days"?
966
DeLopez - direct
1 THE COURT: How is a unit absent?
2 THE WITNESS: I believe it probably -- I don't recall
3 how it was actually originally written or stated. I see what
4 you're referring to, Your Honor. Perhaps the --
5 THE COURT: It should say --
6 THE WITNESS: -- occupant of the unit.
7 MR. FLAXMAN: Judge, I think while they're
8 clarifying, if they'll look at Bates 8385, which is the actual
9 test, you'll see that it has that language for E, "if the unit
10 is absent for 32 days."
11 THE COURT: All right. Thank you.
12 Go ahead to your next one.
13 BY MS. DORN:
14 Q. Okay. Plaintiffs' Exhibit 100. That is test question
15 number 122?
16 A. Yes.
17 Q. What is this question testing on, Commander?
18 MR. FLAXMAN: Let me object that he's not competent
19 to say what something is testing about.
20 BY MS. DORN:
21 Q. What is this question about?
22 A. It makes reference to Illinois law.
23 Q. Okay. And what aspect of Illinois law?
24 A. The Illinois Compiled Statutes.
25 Q. And is this something that a lieutenant needs to know
967
DeLopez - cross
1 about?
2 A. Yes.
3 Q. And why is that?
4 A. Again, to protect the rights of individuals who may come
5 into police custody, to ensure proper procedures are followed
6 with regard to department directives or with regard to laws of
7 Illinois, and to ensure due process in the event that there is
8 a need for arrest or prosecution of an individual.
9 Q. Okay.
10 MS. DORN: I have nothing further.
11 MR. FLAXMAN: Judge, with the Court's permission,
12 Mr. Futterman, who was ill, is doing cross-examination.
13 THE COURT: That's fine.
14 MR. FLAXMAN: Thank you.
15 CROSS-EXAMINATION
16 BY MR. FUTTERMAN:
17 Q. Good morning, Mr. DeLopez. My name is Craig Futterman.
18 I'm one of the plaintiffs' counsel.
19 A. Good morning.
20 Q. As a commander of the police, you're familiar with the D-2
21 promotional process, is that right?
22 A. The promotional process, the written promotion process?
23 Q. The D-2, the D-2 promotional process for promotion to the
24 rank of D-2?
25 A. Yes.
968
DeLopez - cross
1 Q. And D-2 is the rank of detective or youth officer?
2 A. Detective, youth officer or gang, gang investigator.
3 Q. Now, some police officers are promoted to the D-2 rank off
4 of a test, is that right?
5 MS. DORN: Objection, Your Honor. I'm going to
6 object on the grounds that it's beyond the scope and also it's
7 not relevant to the matters at issue in this lawsuit.
8 MR. FUTTERMAN: Your Honor, I admit that it is beyond
9 the scope, but as we are -- rather than calling him back or
10 we've been kind of going out of order anyways.
11 THE COURT: Well, I'll let you go beyond the scope.
12 But what about the other part of the objection?
13 MR. FUTTERMAN: The next couple questions will show
14 why -- we'll show why it's relevant.
15 THE COURT: All right. Go ahead.
16 Do you want to ask it again?
17 MR. FUTTERMAN: Sure.
18 BY MR. FUTTERMAN:
19 Q. Some police officers are promoted to the D-2 rank off of a
20 test, is that right, a written test?
21 A. Yes.
22 Q. And 20 percent of police officers that are promoted to the
23 D-2 rank are promoted by a process called merit selection?
24 A. Well, some, some portion are. I'm not sure of the exact
25 percentage, but some portion are promoted by merit, yes.
969
DeLopez - cross
1 Q. And as the commander for the Chicago Police Department,
2 have you been involved in the D-2 merit promotions process?
3 A. Yes, I have.
4 Q. And you've recommended candidates, police officers for
5 promotion in that process?
6 A. Yes.
7 Q. When you recommended candidates for promotion, you didn't
8 recommend them because they were friends of yours, right?
9 A. No.
10 Q. And you didn't recommend them because you liked that police
11 officer better than another police officer?
12 A. Absolutely not.
13 Q. How did you decide how to recommend candidates to be
14 promoted to D-2 rank?
15 MS. DORN: I'm going to continue to object, Your
16 Honor, on the grounds of relevance. Now he's gone forward with
17 several questions on D-2 promotions and he hasn't established
18 how it's relevant.
19 THE COURT: Overruled.
20 THE WITNESS: If I could, Your Honor, I need to ask a
21 question for clarification.
22 BY MR. FUTTERMAN:
23 Q. Sure.
24 A. Because I fulfilled two functions with the D-2 promotion.
25 Q. Sure.
970
DeLopez - cross
1 A. One as a recommender and one as a member of the academic
2 selection boards. I just need to know which one you're asking
3 about.
4 Q. First, let's start with as a recommender?
5 A. Okay.
6 Q. Go ahead.
7 A. As a recommender, what I would do is I would evaluate
8 personnel with regard to the performance in the particular job
9 that they were doing at the time as a police officer. I would
10 look at their medical history. I would look at their awards.
11 I would look at their performance ratings. I would look at the
12 time in grade and then make a determination based upon that
13 that they may or may not be a suitable candidate for
14 recommendation.
15 Q. And how about on the other end of that, you said the
16 academic --
17 A. Academic selection board.
18 Q. Yes.
19 Then how would you make that determination?
20 A. Well, as a member of the academic selection board, one of
21 the responsibilities of that board was to review these
22 recommendations, evaluating them based upon some established
23 criteria, putting those people into categories and then
24 submitting those categories to the superintendent of police for
25 selection.
971
DeLopez - cross
1 Q. Do you believe -- excuse me.
2 So do you believe there are fair ways to select
3 police officers for promotion, or do you believe that this
4 merit promotions processes is a fair way to select police
5 officers for promotion?
6 A. Well, I feel very strongly that the merit selection process
7 is a good process, and it's fair, yes.
8 Q. Now, you've had an opportunity also as a commander to
9 observe and evaluate officers who have been promoted to the D-2
10 rank, is that right?
11 A. Yes.
12 Q. In your, in your experience, as a general matter -- or let
13 me back up.
14 D-2 promotions increase the racial representation of
15 Latinos at the D-2 rank, is that correct, the merit promotion
16 process?
17 A. Well --
18 MS. DORN: Objection, foundation.
19 THE COURT: Lay a foundation for that.
20 BY MR. FUTTERMAN:
21 Q. Are you aware, are you aware of, are you aware of -- the
22 last time, the last time merit promotions at the D-2 rank were
23 made, that was in '93, is that right, 1993?
24 A. I don't honestly recall the last time. I was at the
25 training academy at the time, so it had to be between '92 and
972
DeLopez - cross
1 '95.
2 Q. And you said both you've -- and in your role on the
3 academic review board?
4 A. Academic selection board.
5 Q. Academic selection board, you've had an opportunity to see
6 which officers got -- actually got promoted to the D-2 rank, is
7 that right?
8 A. Well, what I said was that we made recommendations to the
9 superintendent. We categorized people. And based upon those
10 categories, the superintendent then selected people from the
11 final group.
12 Q. Are you aware of who got promoted as a result, as a result
13 of this process?
14 A. I was at the time, yes, from reviewing a promotional list.
15 Q. Based on, based on your memory, did this process increase
16 Latino representation at the D-2 rank?
17 A. I'm not sure it increased overall representation. I do
18 know that we were cognizant of the fact that some people
19 recommended more minorities and females and were nonminorities.
20 Again, I don't recall the final selection that the
21 superintendent made based on categories, so I really couldn't
22 answer that question emphatically.
23 Q. Do you remember -- do you recall whether or not the D-2
24 merit selection process increased the number of
25 African-Americans at the D-2 rank?
973
DeLopez - cross
1 A. Again, I'd have to give you the same answer or the same
2 response I just gave. You know, I don't recall what the
3 superintendent's final selection of individuals by category
4 was.
5 But I do know that there was a certain number of
6 people that were recommended that were recognized as being part
7 of those different categories of classes of people.
8 Q. So certainly African-Americans got promoted as a result of
9 this process?
10 A. Some did certainly.
11 Q. And Latino officers got promoted as a result of this
12 process?
13 A. Some -- I believe some did, yes.
14 Q. Now, as you just stated earlier, you evaluated detectives
15 in your role as commander. You've had an opportunity to see
16 how these detectives who were promoted performed on the job?
17 MS. DORN: Objection, form.
18 MR. FUTTERMAN: I'll rephrase.
19 BY MR. FUTTERMAN:
20 Q. Have you had the opportunity to observe how people who were
21 promoted to D-2 have performed on the job?
22 A. Yes.
23 Q. And as a general matter, is it your opinion that the Latino
24 officers who were promoted as a result of the merit selection
25 process performed on the job any worse than the white officers
974
DeLopez - cross
1 promoted off the test?
2 THE WITNESS: Well, again, if I could, Your Honor, if
3 I may qualify my answer?
4 THE COURT: Go ahead.
5 BY THE WITNESS:
6 A. I didn't have any direct supervision of these officers. My
7 contact was with their provision of ancillary services to me as
8 a district commander. In that context, I found no basic
9 difference in performance.
10 BY MR. FUTTERMAN:
11 Q. And the same question as a general matter with regard to
12 the African-American officers who were promoted to the D-2 rank
13 by merit selection. In your experience, have you found them to
14 perform any worse than the white officers who were promoted off
15 the test?
16 A. Again, with the same qualification, no.
17 Q. And when you say that qualification, one of your roles was
18 deputy chief in one of the youth divisions, is that right?
19 A. I was a commanding officer of a youth area.
20 Q. Okay. And the youth area, these were -- this was an area
21 where youth officers worked?
22 A. Correct.
23 Q. You had an opportunity to observe how youth officers
24 worked?
25 A. Correct.
975
DeLopez - cross
1 Q. Now, Commander, would you agree with former Superintendent
2 Rodriguez's statement that Latino Chicago police officers are
3 just as well qualified to be promoted as white officers?
4 MS. DORN: Objection. I would think foundation. We
5 don't have --
6 THE COURT: Pretty broad question.
7 MR. FUTTERMAN: I'll narrow, I'll narrow it down.
8 BY MR. FUTTERMAN:
9 Q. Would you agree with Superintendent Rodriguez's statement
10 that it's important for the Chicago Police Department to be
11 representative of the racial composition of the community to
12 which it polices?
13 A. Yes.
14 MS. DORN: Objection. Statement not in the record.
15 THE COURT: Assumes a fact not in evidence.
16 MR. FUTTERMAN: It's a stipulated deposition that's
17 going to be introduced into evidence.
18 MS. DORN: Can he cite the deposition transcript, if
19 that's true?
20 THE COURT: Let's get real here. I kind of remember
21 Superintendent Rodriguez's testimony from the preliminary
22 injunction hearing, and I think he may have testified to this
23 very thing.
24 MR. FLAXMAN: He did not testify. We had a
25 deposition that we may or may not have introduced at the
976
DeLopez - cross
1 preliminary injunction.
2 THE COURT: He testified. I remember it.
3 MR. FLAXMAN: Okay.
4 THE COURT: You guys weren't there, over here to my
5 left. But you were there, Mr. Flaxman.
6 MR. HOLZHAUER: I've read his testimony, Your Honor.
7 THE COURT: Mr. Futterman wasn't there. I think we
8 went into this. I think I remarked on it in my opinion in
9 fact.
10 But anyway, is there any real doubt about this? Is
11 anybody denying any of these facts or are we just playing
12 evidence games here?
13 MR. HOLZHAUER: Can I hear the question again?
14 BY MR. FUTTERMAN:
15 Q. I asked if you would agree with Superintendent Rodriguez's
16 statement that it's important for the Chicago Police Department
17 to be representative of the racial composition of the community
18 to which it polices?
19 MS. DORN: No objection.
20 THE COURT: Okay. You'll stipulate to that
21 proposition?
22 MS. DORN: Yes.
23 BY MR. FUTTERMAN:
24 Q. Do you agree that that's important?
25 A. Yes, I do.
977
DeLopez - cross
1 Q. And do you also agree with Superintendent Rodriguez's
2 statement that this racial representation is important at all
3 levels in the Chicago Police Department?
4 A. Very much so.
5 Q. Because it helps make the Chicago Police Department a more
6 effective police department in policing the community?
7 A. More effective, more responsive.
8 Q. So you would say that it's important for the racial
9 composition of Chicago police lieutenants to be representative
10 of the racial composition of the Chicago police sergeants from
11 which they're selected, is that right?
12 A. Yes, I agree.
13 Q. And the same thing with Chicago police sergeants, they
14 should be representative of the racial composition of patrol
15 officers from which they are selected?
16 A. I would go beyond that. I'd state that reflective of the
17 population that they serve also.
18 Q. You anticipated my next question.
19 Now, you don't have any reason to believe that Latino
20 Chicago police sergeants as a general matter are any less
21 qualified than white police sergeants to be Chicago police
22 lieutenants, do you?
23 A. No.
24 Q. And would you also agree that there is no reason to believe
25 that African-American police sergeants are any less qualified
978
DeLopez - cross
1 than white police sergeants to be Chicago police lieutenants as
2 a general matter?
3 A. No.
4 Q. Well, do you believe that the Hispanic or the Latino
5 Chicago police sergeants who took the 1994 exam didn't study as
6 hard as the white police sergeants?
7 MS. DORN: Objection.
8 THE COURT: Sustained.
9 MS. DORN: Foundation.
10 THE COURT: Sustained.
11 BY MR. FUTTERMAN:
12 Q. When were you promoted to commander, Mr. DeLopez?
13 A. 1985.
14 Q. You've been in various assignments as a commander, is that
15 right?
16 A. T