A Chicago police officer refused to answer questions Tuesday about a mysterious shooting at his home nearly seven years ago, exercising his Fifth Amendment right against self-incrimination during a wrongful shooting trial in federal court.
Veteran patrolman Patrick Kelly declined to answer more than a dozen questions about the shooting and his checkered police record before U.S. District Judge Harry Leinenweber dismissed him from the witness stand in the civil case.
“On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment,” Kelly repeatedly said.
Wearing a suit and taking frequent sips from a water bottle, Kelly struggled, at times, to give his boilerplate response to questions that suggested he had shot his childhood friend in 2010 and then tried to cover it up. He rarely looked at jurors, some of whom raised their eyebrows or smirked when he refused to answer.
Kelly’s attorney, Anthony Monaco, declined to say why Kelly opted not to testify.
Though it’s rare for police officers to invoke their Fifth Amendment rights, Kelly has refused to make statements under oath since February 2016, when the Chicago Police Department reopened an investigation into the shooting.
Kelly and his childhood friend Michael LaPorta were the only people inside the officer’s South Side home on Jan. 12, 2010, when LaPorta was shot toward the back of his head with Kelly’s service weapon after a night of heavy drinking. Chicago police classified the shooting as an attempted suicide based largely on the account of Kelly, the only other person in the house at the time.
But lawyers for LaPorta’s family contend that Kelly shot LaPorta in anger, and benefited from the so-called code of silence in the department, an unwritten understanding that officers protect each other even to the point of ignoring wrongdoing. The family is seeking damages in excess of $90 million.
LaPorta, who also testified Tuesday, recalled the events leading up to the shooting for jurors. Speaking in a soft and halting voice, LaPorta said the two friends had gone out drinking and then returned to Kelly’s home.
Shortly after arriving, LaPorta said, Kelly began hitting his dog and LaPorta announced he was leaving. LaPorta testified that he heard a clicking sound as he went to go, though he acknowledged he never saw Kelly holding a gun.
“I didn’t even know he had a gun until he shot,” LaPorta said. “He shot me. I know he shot me.”
LaPorta denied that he was suicidal that night.
“I’m happy everyday and I was happy every day,” he said.
The judge barred Kelly from attending LaPorta’s testimony, despite a request from the officer’s attorney. Earlier in the day, the trial briefly was halted when a courthouse employee told the judge that Kelly refused to briefly leave the lobby so LaPorta could be brought into a witness waiting room without the two men crossing paths.
Courthouse personnel eventually brought in LaPorta, who uses a wheelchair, through a back hallway.
The former friends have not seen or spoken with each other since the shooting.
In order for damages to be awarded, LaPorta’s attorneys must convince the jury that Kelly shot his friend. It’s a high bar to meet, but legal experts say Kelly’s refusal to testify may make it easier. The city now must convince the 10-member jury that Kelly didn’t do anything wrong even though Kelly himself won’t say that.
“It has a devastating effect for (the city),” said attorney Terry Ekl, who won the first code-of-silence lawsuit against the city in 2012. “Anytime a witness refuses to testify, it has an impact. But if it’s a cop pleading the Fifth, it’s especially significant.”
Kelly was taken off the streets this year amid two investigations into his on- and off-duty conduct, according to the Chicago Police Department. He still retains his police powers to carry a gun and make arrests.
LaPorta, who was also Kelly’s college roommate, couldn’t speak for months after the shooting, but LaPorta’s family pushed back against the suicide classification. LaPorta’s fingerprints weren’t found on the gun, and witnesses — including several Chicago police officers LaPorta had been drinking with that night — said he appeared to be in good spirits in the hours before the shooting.
Even with the cloud of uncertainty hanging over the investigation, police nonetheless took the word of Kelly, who told them LaPorta went into the officer’s bedroom and found the gun. A bullet fired from the pistol splintered and ricocheted inside LaPorta’s head, leaving the now-37-year-old man dependent on his parents for round-the-clock care.
LaPorta, who still suffers from a host of medical problems, can no longer walk or read. Kelly, who has repeatedly denied shooting LaPorta, settled a lawsuit with the family in 2012 for $300,000 — the maximum payout under Kelly’s personal insurance policy.
But LaPorta’s family still has the federal lawsuit against the Police Department that alleges the city should have removed Kelly from the force long before the shooting.
Jurors are expected to be told they can take a “negative inference” from Kelly’s refusal to testify, meaning they can consider that he declined to answer questions because the truth could be bad for him.
“In a criminal case, you can’t use someone’s silence against them — that’s the classic Fifth Amendment protection,” said attorney Jon Loevy, one of Chicago’s leading plaintiff’s lawyers in police misconduct cases. “But all bets are off in a civil case. There is no right to remain silent.”
While it’s rare for police officers to exercise their Fifth Amendment right, it has happened. Former Chicago police Superintendent Phil Cline refused to testify in a federal drug trial linked to the Marquette 10 police scandal in the early 1980s, when he was a sergeant, but he continued to rise through the ranks over the next two decades to eventually lead the department.
Retired Detective Reynaldo Guevara also tried to invoke his Fifth Amendment right in an ongoing proceeding involving a 1993 homicide. Although prosecutors granted him immunity, he wanted to avoid testifying because he was worried it would lead to a perjury charge, his lawyer said. Guevara testified under court order Tuesday, saying he could not recall the answers to any substantive questions.
Indeed, many officers now worry that making sworn statements in years-old police misconduct cases could lead to trouble, experts said. While the statute of limitations may have expired, officers could still face perjury charges if they provide false testimony.
The concern has become even more pressing since infamous former police Cmdr. John Burge was convicted of perjury after lying in a deposition in a civil case about police misconduct decades earlier.