“It’s Not an Office that Stands for Justice”

BY CURTIS BLACK

Much of the reaction to Cook County State’s Attorney Kim Foxx’s statement last week that she was considering designating a state agency to review police shootingsfocused on the agency in question — the Office of State Appellate Prosecutor.

“I don’t think very highly of them,” said one civil rights attorney, whose view was echoed by several others.

Foxx said that her office is drafting legislation that would allow OSAP to review police shootings in which Cook County prosecutors decided not to charge officers.

“I’m sure Kim Foxx was unaware of the poor track record of [OSAP],” said private investigator Bill Clutter, a founder of the Illinois Innocence Project, currently working with the nonprofit Investigating Innocence. “Otherwise she would never have suggested it could be an independent entity for reviewing police misconduct or wrongful convictions.”

Clutter has done post-conviction investigations in several high-profile cases where OSAP defended convictions, including those of Randy Steidl and Julie Rae. In Rae’s case, after the local state’s attorney decided not to charge the graduate student in the brutal stabbing of her 10-year-old son, OSAP initiated a prosecutionbased on the testimony of a bloodstain expert whose credibility has been attacked by his colleagues. Rae was convicted in 2002 but exonerated four years later after a serial killer was found to be the real culprit.

“It’s not an office that stands for justice,” said Clutter.

Foxx’s position has evolved on the question. During her election campaign last year she promised to “require a special prosecutor in all police-involved shooting cases”out of recognition of the close relationship between the state’s attorney’s office and police officers, and “to mitigate widespread public distrust in our broken criminal justice system.”

That was the position taken by the mayor’s Police Accountability Task Force last year, which recommended “new legislation that would require the appointment of an independent prosecutor, separate from the state’s attorney,” to handle “all phases of any prosecution” of officers charged with unjustified shootings. The task force noted that the relationship between police and local prosecutors “creates actual bias or the perception of bias” and “may result in criminal behavior by police going unpunished.”

Also last year, civil rights attorneys Anand Swaminathan and Joshua Tepferpointed out that the “inherent conflict of interest” for local prosecutors is greater in Chicago due to its system of felony review, a “one-of-a-kind process for major crimes” in which prosecutors participate in investigations, going to police stations to take statements from suspects and then testifying in court that the statements were voluntary.

They named New York, Wisconsin, and Connecticut as states without this “additional conflict” that nonetheless have removed review of police-involved shootings from local prosecutors. They also argued that the felony review process may need to be “abolished in its current form.”

Foxx’s position began shifting shortly after her election, saying she planned “to be more engaged in the early stages of investigations dealing with police-involved shootings.” Her transition report called for creating protocols for “the potential use of special prosecutors for police misconduct investigations.”

In March, she told the Chicago Sun-Times she had learned that farming out cases to special prosecutors is harder than it looks, and that there’s no reason local prosecutors can’t bring charges against officers. She said “the big issue” is “when cases are taking a long time to have a decision made, or when there is no decision made at all, and there is no light into how those decisions were made.”

In her first months in office Foxx has charged two police officers with first-degree murder. She declined to pursue charges against an officer who shot and killed Quintonio LeGrier and Bettie Jones in December 2015. She released a memo about that decision, saying prosecutors could not prove the officer was not acting in self-defense.

Rob Warden, founder of the Center on Wrongful Convictions, said he supports Foxx’s position that her office should be the one prosecuting police misconduct. “It’s her responsibility,” he said. “She has to stand up and enforce the law. By transferring it to a special prosecutor, she just would just be shifting that responsibility.”

Civil rights attorneys said that in order to ensure objectivity, any review of charging decisions in police shootings should be conducted by an entity with no connection to law enforcement.

“Department of Injustice”

Evaluating President Trump’s first 100 days, Rev. Jesse Jackson writes that “it’s a mistake” to “discount the threat [the administration] poses to our fundamental rights” — especially Attorney General Jeff Sessions, who has “set out with a vengeance” to transform his department into “a Department of Injustice.”

Jackson cites Sessions’s reversal of federal support for the Voting Rights Act; his revival of the “old, failed war on drugs” and opposition to “bipartisan efforts to reform sentencing provisions to end the mass incarceration of nonviolent drug offenders”; his review of consent decrees with local law enforcement agencies, in which “Sessions is clearly telling police they can act with impunity once more”; and his advocacy of increased deportations, Trump’s Muslim ban, and funding cuts for sanctuary cities.

At Rolling Stone, Matt Taibbi puts Sessions’s retreat in historical perspective. He’s vowing to ignore a 1948 law charging the Justice Department with protecting constitutional rights. And he’s taking us back to 1959, when President Eisenhower’s attorney general effectively banned “dual prosecutions,” meaning the feds would stay out of local civil rights controversies as long as there had been some kind of legal proceeding, no matter how flawed. That ended in 1977, when Jimmy Carter’s attorney general issued an order vowing to investigate every allegation of a civil rights violation “on its own merits.” (A 1997 law expanded the Justice Department’s role in investigating civil rights violations by police departments.)

While many white Americans may want to go back to the pre-civil rights 1950s, Taibbi argues, things are different now: “The whole country regularly gawks at brutal cases of police violence on the internet. Nobody can pretend it’s not going on.”

In the news

• The Illinois Labor Relations Board declined to dismiss an unfair labor practices complaint by the Fraternal Order of Police charging the city violated state labor law when it unilaterally implemented new policies requiring officers to wear body cameras and establishing a discipline matrix to guide punishments for misconduct. The board ordered a formal hearing before an administrative law judge on the charges.
• The Illinois House passed a bill tightening the terms of a law banning “unlawful contact” with a gang member by parolees. Under State Rep. Kelly Cassidy’s bill — which the Senate will now consider — parolees would need to be involved in gang-related activity to face arrest.
• “Criminalizing living in a neighborhood with a high number of parolees and people who the police have labeled as gang members simply gives police yet another pretext for harassing young black men,” commented Megan Groves of the Uptown People’s Law Center in a letter to the editor. “When people are released from prison, what they need is support and opportunity — not additional harassment by police.”
• A federal judge chided city lawyers for “pure sophistry” in rejecting their motion to dismiss Mark Maxson’s wrongful conviction lawsuit. Maxson spent 22 years in prison after detectives working for disgraced Cmdr. Jon Burge allegedly coerced him into confessing to a murder. He was freed in 2016.
• Cook County prosecutors have said they are considering granting immunity to retired Det. Reynaldo Guevara in order to compel him to testify in support of the convictions of two men who say they were framed by Guevara in a 1997 double murder. Last year Arturo Reyes and Gabriel Solache won a hearing on their claim that their confessions were coerced, after Guevara took the Fifth rather than testify in their hearing. Two more Guevara victims were exonerated last month.
• There’s “no intention by prosecutors to force Guevara into airing decades of dirty laundry,” the Chicago Sun-Times reported. “We have a murder case we believe is a good case,” a source told the paper.
• No physical evidence connects Reyes or Solache to the crime. The two men had no prior criminal records. They were held and questioned over 40 hours after appearing voluntarily at a police station with a child who was abducted during the murder. New DNA evidence, recovered from a knife found under one murder victim, excludes Reyes or Solache and points to an unknown person, according to their lawyers.
• A Chicago man was denied due process in an immigration proceeding because he was erroneously placed in CPD’s “over-inclusive” gang database, according to a lawsuit. Wilmer Catalan-Ramirez said he was “falsely labeled as a gang member” and then “targeted by [Immigration and Customs Enforcement] because CPD shared this false information.” Catalan-Ramirez is also charging that ICE used excessive force during an unlawful search and seizure.
• Critics have long said that individuals stopped by police in a gang’s territory can be arbitrarily listed as members of that gang in the department’s database. Activists have argued for expanding protections for immigrants in the city’s Welcoming Ordinance.

Vol. 2, Issue 40: Chicago’s Criminal Justice Playbook