Lisa A. Jensen
Lisa A. Jensen

Defendants in a wrongful conviction lawsuit cast the net too wide when they sought recordings of thousands of telephone calls the plaintiff made or received over a four-year period, a federal judge held.

In a written opinion on Tuesday, U.S. Magistrate Judge Lisa A. Jensen concluded the Illinois State Police employees sued by Patrick Pursley had failed to explain how his phone conversations from behind bars are relevant to the case.

Jensen directed the state police defendants to return all recordings they have already received to the Illinois Department of Corrections and to destroy any copies they made.

But Jensen wrote the defendants may keep the log of the calls and the names associated with the phone numbers on the log.

And she wrote the defendants may seek permission file a motion “to serve a more particularized subpoena” on the Department of Corrections.

In April 1994, Pursley was convicted of first-degree murder for allegedly shooting a man to death during a robbery a year earlier. He was sentenced to life in prison without parole.

During the trial, a crime lab analyst with the state police testified a gun seized from the apartment Pursley shared with his girlfriend was the murder weapon “to the exclusion of all others.”

Pursley spent years contesting his conviction and ultimately obtained a ruling from the Illinois Appellate Court allowing new ballistics tests to be conducted.

In a December 2016 hearing, the same crime lab analyst testified his examination of the evidence, including the new ballistics tests, was inconclusive.

Two experts for the defense concluded the new tests showed the gun seized from the apartment was not the murder weapon.

Pursley was granted a new trial and released on bond in April 2017. He was acquitted in January 2019 following a bench trial.

In the meantime, Pursley had filed a lawsuit in federal court accusing Rockford police of coercing his girlfriend to give a false statement and crime lab analysts with the state police of fabricating evidence to link his gun to the murder.

In January of this year, the crime lab defendants issued a subpoena to the Department of Corrections seeking all recorded phone calls Pursley made or received from 2013 to 2019.

In her opinion, Jensen noted Pursley was released in 2017 and so the recorded calls are from 2013 to 2017.

Last month, Pursley filed a motion to quash the subpoena under Federal Rule of Civil Procedure 45 (d).

Rule 45(d) states that a party or lawyer issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”

Pursley argued the phone calls are not relevant to the litigation and, therefore, do not outweigh his interest in privacy. In determining whether to quash the subpoena, Jensen wrote in her opinion, citing Simon v. Northwestern University, No. 15 C 1433, 2017 WL 66818 (N.D. Ill. Jan. 6, 2017), she must “balance the burden of compliance on [p]laintiff’s privacy interests against the benefit of production of the material sought.”

The crime lab defendants argued all recorded phone calls are relevant to their case because Pursley alleges his imprisonment cut him off from his family, Jensen wrote.

However, she wrote, the subpoena is not limited to calls between Pursley and his family members.

“Even if it were limited to calls with family members, however, the [crime lab defendants] do not explain how telephone conversations with family members could rebut the allegation that [p]laintiff was deprived of watching his young children grow up or that he was separated from his family during his incarceration,” Jensen wrote. “These allegations are facts that no conversation could rebut.”

Jensen, however, rejected the argument that the attorney-client privilege also called for quashing the subpoena.

“The Offender Orientation Manual explicitly states that calls made from Stateville Correctional Center are subject to monitoring and recording,” Jensen wrote.

Under that circumstance, she wrote, Pursley could not have reasonably expected that his conversations with his lawyers were confidential.

“By proceeding to have discussions on a telephone line he knew was being recorded, [p]laintiff has waived the attorney-client privilege,” Jensen wrote.

The case is Patrick Pursley v. City of Rockford, et al., No. 18 C 50040.

Rachel E. Brady of Loevy & Loevy represents Pursley in the matter.

The crime lab defendants are represented by lawyers who include Illinois Assistant Attorney General Erin E. Walsh.

Spokeswoman Annie Thompson of the Attorney General’s Office declined to comment.