Commission created to review cases hampered by lack of money and staff
By Abigail Blachman
Injustice Watch
CHICAGO (AP) — Decades after evidence first emerged that Chicago police detectives were repeatedly winning confessions through coercion and torture, the Cook County criminal justice system struggles to respond to the complaints of hundreds of defendants that they were coerced years ago into falsely confessing.
An Injustice Watch review documented the slow pace, and high costs, of reviewing the cases of defendants, almost all black men convicted at a young age, who say they were beaten into false confessions by Chicago police detectives, including the disgraced former Chicago Police Department Commander Jon Burge and his crew.
Many defendants find their cases languishing in the Cook County court system for years. And many more defendants who turned to a commission created by state law to offer defendants a chance to establish credible evidence that they were tortured into confessing to crimes have similarly encountered delays, the agency hobbled by a lack of money and staff.
The backlog of cases of the Illinois Torture Inquiry and Relief Commission (TIRC) totals 543.
At the rate the commission has resolved claims in recent years, it would take 30 years to handle the remaining claims. And without more money and more staff, that estimate could be optimistic.
“If the criminal justice system really believes that innocence matters, and that no one should serve a day behind a prison wall that is innocent, then that is a complete contradiction,” said Mark Clements, a staff member at the Chicago Torture Justice Center, of the long delays in resolving these cases.
Added Clements, who alleges he was a victim of police torture under Burge and spent 28 years in the Illinois Department of Corrections, “It goes on for years, and years, and years, before people are able to get any form of relief.”
The commission has taken, on average, over three years before finding claims of torture credible enough to a warrant a new Circuit Court review for claimants, many of whom had exhausted their appeals long before claims of torture by the detectives were given any merit, the Injustice Watch review found.
Since 2016 the commission has been resolving claims more quickly, though one reason is that many of the cases were summarily dismissed because they fell outside the commission’s jurisdiction.
And even once the commission finds credible evidence of torture on a claim, the Injustice Watch review found, it often takes more than three additional years for the courts to have a hearing.
“The process here is the punishment,” said Nicole Gonzalez Van Cleve, an associate sociology professor at Brown University who spent years researching the Cook County criminal courts. “These people are petitioning for their cases to be heard, and yet we are making the process so arduous that there is a disincentive to come forward,” she said.
To be sure, some of the delays are caused by the commission being overwhelmed by claims, both valid and not, from prisoners who saw the commission as a last-ditch hope of winning freedom. And in many cases, once the commission finds credible evidence, court delays are partly the fault of defense attorneys who need time to investigate claims that date back decades.
But much of the delay reflects that the system was not built to urgently respond to claims of abuse made long ago.
“The system was never intended to expose this,” said Van Cleve. “You don’t have 30 years of torture without judges and prosecutors looking the other way.”
—————
Delay upon delay
Javan Deloney turned to the commission in July 2011, contending that detectives under the command of Burge beat him into confessing to taking part in two August 1991 drive-by shootings that left three people dead and three others injured. He was convicted at a non-jury trial and sentenced to life in prison.
Courts had declined largely on procedural grounds to consider his claim of torture in his post-conviction proceedings. But in January 2017 — more than five years after Deloney filed his claim — the commission ruled that Deloney had presented sufficient evidence of torture to merit judicial review, and sent the case to Cook County Circuit Court.
Deloney remains in prison, his hearing repeatedly delayed. At a court date last week, Deloney’s attorneys, Elliot Zinger and Larry Dreyfus, complained that the state has repeatedly delayed answering the petition that they filed in March 2018. Associate Judge Alfredo Maldonado commented, “We’ve been waiting,” and told the prosecutor to file the required answer within three weeks.
Abdul Malik Muhammad turned to the commission in July 2014, contending he was coerced in April 2000, by detective Michael McDermott, who had worked under Burge’s command, into confessing to a gang murder that occurred a year earlier.
Four years later, the commission concluded that Muhammad’s claim of coercion and torture appeared to be credible, giving Muhammad the chance to make his case to a Cook County judge.
Another year has passed, and that hearing has yet to be scheduled, as both sides struggle to develop evidence of what occurred 19 years ago.
Jerome Johnson has contended for at least 27 years that his confession to murder was the result of torture on the part of detectives working under Burge. After a judge in 1993 rejected Johnson’s pretrial claim that his confession was coerced, he ended up pleading guilty to one murder and then convicted by a jury of a second.
Johnson turned to the commission in September 2011, just four months after it began accepting claims, contending that the confession had been used to force the guilty plea to one murder, and then prevented him from taking the stand to testify to his innocence in the other.
It was not until more than six years later, in March 2018, that the commission ruled that his claim of torture was “credible and consistent,” and warranted a fresh review by the Circuit Court.
—————
State creates TIRC
State lawmakers created the commission under pressure by a coalition of activists in 2009 amidst a growing outcry of defendants who credibly claimed they had been tortured into confessing by Burge and his crew of detectives from a period dating back decades.
Many had complained, since before trial, of being tortured into confessing, but their complaints were routinely rejected by Cook County judges who accepted the testimony of officers that no torture had taken place.
By the time the commission was created, the accusations against Burge and his detectives were well established.
In 1987 the Illinois Supreme Court reversed the conviction of Andrew Wilson, who had been convicted of the murder of two Chicago police in broad daylight, finding evidence that his confession had been the result of torture by Burge detectives.
Widespread abuses also were documented by Amnesty International; by reporters including John Conroy in the Chicago Reader; and by attorneys, including G. Flint Taylor of the People’s Law Office, who had documented a pattern of complaints in a series of court cases including Wilson’s.
In 1990, two internal police investigations concluded both that Burge and his crew had coerced Andrew Wilson’s confession, and documented “systemic” abuse by the detectives over a period from 1973 to 1985.
Burge was suspended in 1991, fired in 1993, and was finally convicted on federal charges of perjury and obstruction of justice — for denying the abuses — in 2010.
The law created an eight-member commission, to be chaired by a former judge.
Originally, the commission could only hear cases involving Burge and his crew. But as other Chicago detectives became accused of a pattern of coercing confessions, the state amended the law in 2016 to permit the commission to also take cases not involving Burge and detectives under his command.
“Police torture in Chicago did not stop when Burge was arrested,” said UIC-John Marshall law professor Kim Chanbonpin, who undertook the first scholarly study of the commission in 2014.
The commission is unable to say how many of the pending 543 cases involve complaints of coercion by officers outside of Burge’s crew. The last time the commission gave a public update was July 2017; the commission’s executive director, Rob Olmstead, said then that of 419 pending claims 349 would not have fallen within the commission’s jurisdiction before it was expanded.
—————
Fits and starts
The commission has operated in stops and starts. In 2012 the commission’s work was halted when the legislature withheld funding for a time. In 2013 the commission was hobbled again when its director was asked to step down amid a controversy over the commission’s failure to inform victims’ families when cases were being considered, as required by state law.
The commission has so far completed a review of 105 claimants’ cases, and referred 29 of those to the courts.
Over the last three years, the commission has resolved an average of 17 cases a year.
Just around half of the claims the commission resolved in those years followed full investigations in which the commission’s staff might issue subpoenas and interview both the claimant and other witnesses. The other half were resolved because the claims did not fall within the jurisdiction of the commission.
If a significant portion of the remaining cases require full investigations, it could take far longer than 30 years to get through the backlog of claims.
Much of the problem rests with the lack of staff and funding to help work through the backlog.
When the commission was created, Olmstead noted, legislators expected its task would be to resolve 27 outstanding claims by defendants of torture by detectives under Burge’s command. Instead, it has been called upon to resolve hundreds of claims.
The commission’s budget for fiscal year 2019, Olmstead said, is $417,000, up from $400,000 in 2018. That is enough funding for three full-time staff members, including one who began working in July, according to Olmstead. He said he expects that the attorney to spend some time applying for grants that could enable more staff to be hired.
“I would like to see us have at least five more staff attorneys at a minimum,” he said.
Olmstead later provided a written statement, saying: “TIRC is working to move through cases in a way that is both efficient and fair for those we serve.” He emphasized the addition of the new attorney.
The commissioners hold board meetings about every other month, at which the commissioners hear staff reports on a series of outstanding cases. At the most recent meeting, August 21, the commission made decisions on six claims.
Four of them were outside the commission’s jurisdiction — either not originating in Cook County or not involving a claim that torture led to an incriminating statement — leaving the commission to vote on two claims that staff members had fully investigated. Commissioners voted to dismiss both.
—————
After TIRC, more delays
Even once the commission finds credible evidence of torture, cases take years to make their way to a decision by the circuit judge.
“It is unfortunate that the TIRC referrals I have personally witnessed being transferred back into the trial courtrooms are met with annoyance and skepticism by judges, rather than a concern that an independent commission has determined the evidence of torture merits judicial review,” said Julie Koehler, a veteran Cook County public defender, using the commission’s acronym.
Gerald Reed waited more than six years for a hearing in court even after the commission found his claim credible. And even after Judge Thomas Gainer agreed and awarded Reed a new trial, his wait was not over.
The special prosecutor in the case has announced his intention to retry Reed even without the confession.
Reed alleges that on October 4, 1990, he was questioned by detectives Michael Kill and Victor Breska about a double murder. He contends the officers kicked a chair out from beneath him and repeatedly kicked his leg and lower back, splintering a metallic rod he had in his right leg from an old gunshot wound.
The commission found “no evidence that this condition existed before (Reed’s) arrest or that this injury happened after he arrived at the jail. In fact, the records negate the argument that it happened after he arrived at the jail because there is no mention of such an incident.”
The referral also highlighted Reed’s consistent assertions that he was tortured, beginning with a motion to suppress his confession before his 1992 trial.
But the special prosecutor fought to keep the confession and, even after Gainer ruled it had been coerced, has continued to aggressively prosecute the case.
In the meantime, Reed remains in prison.
Van Cleve called the delays “extremely troubling.” She added, “There has been almost no accountability. The city has been more than happy to pay out the lawsuits. They haven’t put the money into reforming policing meaningfully.”
The City of Chicago has paid out more than $45,000,000 in settlements to defendants who were tortured by Burge and his associates and later exonerated, an Injustice Watch review of National Registry of Exoneration cases shows.
—————
Thirty five years and counting
Jackie Wilson first alleged in 1982 that his confession to a role with his brother, Andrew, in the murder of Chicago police officers Richard O’Brien and William Fahey, was a result of police torture.
The commission first referred Wilson’s case to the courts in 2013 based on its finding that there was credible evidence his confession was a result of torture. But the commission violated state law in deciding the case without alerting the families of the victims that the case was to be considered. After the Fraternal Order of Police complained, the commission took back its referral, and it took two more years before the commission issued its second ruling in the case.
Again the commission found in May 2015, that there was credible evidence of torture, meriting judicial review.
But new delays ensued. First, the case was assigned to Judge Nicholas Ford, whom Wilson’s attorney, Taylor, moved to disqualify because Ford had worked as an assistant state’s attorney on cases that involved allegations of torture by Burge’s crew.
The case then was reassigned to Judge William Hooks, and hearings on the allegation of torture finally began in December 2017.
Six months later, Hooks issued a 119-page opinion finding that the confession had been coerced, and prosecutors could not introduce it on retrial.
Days later, Hooks ordered Wilson’s release from prison after 36 years. He now awaits a new trial.
While Wilson is now free, the special prosecutor has appealed Hooks’ order suppressing the confession at retrial, and the case is now before the Illinois Appellate Court. Taylor noted in an interview that if the appeals court upholds Hooks’ ruling, the prosecutor could try to appeal further.
—————
“A mockery, a travesty”
In some cases, the delays facing defendants who contend they were tortured into confessions have nothing to do with the commission.
Sean Tyler has contended since before his 1995 trial that the detectives who investigated his case had physically abused him until he falsely confessed to a role in the murder of a 10-year old.
In 2015 the Illinois Appellate Court ordered the Cook County Circuit Court to hold a hearing on Tyler’s claim. Since he first raised the issue, an appeals court panel ruled, “a troubling pattern of systemic abuse by the same detectives that interrogated him and investigated his case” made Tyler’s claim more credible.
Four years later, that hearing has yet to take place.
“It’s a mockery of justice, a travesty,” said Tyler, who spent just over 25 years in prison before being released on house arrest last year. “I’m baffled. I can’t even find the words. I just want my day in court.”
Of the years Tyler has spent waiting for the hearing, the first three were spent in a state prison before he was released on parole.
“We have been waiting for this evidentiary hearing for almost four years,” said Karl Leonard of the University of Chicago Exoneration Project, who represents Tyler. He blamed the delays on the Cook County State’s Attorney, saying the office has reassigned the prosecutors working on the case multiple times.
A jury convicted Tyler in 1995 after testimony not only of his confession but also from a nearby resident. The resident testified that she could positively identify Tyler as the young man she watched run through an alley behind her window, carrying a gun, after the shooting took place.
In his statement to police, Tyler, after hours of questioning, told police that he had been given a gun by gang members, and he stood watching but never actually fired his gun.
The Illinois Appellate Court opinion, written by Judge Robert E. Gordon, concluded that Tyler had “made a substantial showing of a longstanding pattern of police misconduct that could have resulted in his coerced confession and support his claim of actual innocence.”
Four years later, Tyler remains waiting.
