Vol. 2, Issue 40: Chicago's Criminal Justice Playbook
At Issue: “It’s Not an Office that Stands for Justice”
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 shootings—focused on the agency in question: the Office of the State Appellate Prosecutor (OSAP).
“I don’t think very highly of them,” said one civil rights attorney, whose view was echoed by several others. Foxx stated 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 and 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 conducted 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 prosecution based on the testimony of a bloodstain expert whose credibility has been challenged by his colleagues. Rae was convicted in 2002 but exonerated four years later when a serial killer was found to be the actual culprit.
“It’s not an office that stands for justice,” Clutter asserted.
Foxx’s position on the issue has evolved. During her election campaign last year, she promised to “require a special prosecutor in all police-involved shooting cases” in recognition of the close relationship between the state’s attorney’s office and police officers, as well as “to mitigate widespread public distrust in our broken criminal justice system.”
This stance aligned with the position taken by the mayor’s Police Accountability Task Force, which last year 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 Tepfer pointed out that the “inherent conflict of interest” for local prosecutors is even 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, travel to police stations to take statements from suspects, and later testify in court that the statements were voluntary.
They identified New York, Wisconsin, and Connecticut as states without this “additional conflict” that have nonetheless removed the 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 when she stated that 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 that outsourcing cases to special prosecutors is more challenging than it appears, adding that there is no reason local prosecutors cannot bring charges against officers. She emphasized that “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 explaining that decision, stating that prosecutors could not prove the officer was not acting in self-defense.
Rob Warden, founder of the Center on Wrongful Convictions, expressed support for Foxx’s position that her office should prosecute police misconduct cases. “It’s her responsibility,” he stated. “She has to stand up and enforce the law. By transferring it to a special prosecutor, she would just be shifting that responsibility.”
Civil rights attorneys, however, argued that 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 for increased deportations, Trump’s Muslim ban, and funding cuts for sanctuary cities.
At Rolling Stone, Matt Taibbi places Sessions’s retreat in historical perspective. He argues that Sessions is vowing to ignore a 1948 law that charges the Justice Department with protecting constitutional rights. Additionally, he is reviving a policy from 1959, when President Eisenhower’s attorney general effectively banned “dual prosecutions,” meaning the federal government would stay out of local civil rights controversies as long as some form of legal proceeding had taken place, regardless of its flaws. That policy ended in 1977 when President Jimmy Carter’s attorney general issued an order requiring the Justice Department to investigate every allegation of a civil rights violation “on its own merits.” A 1997 law further expanded the department’s role in investigating civil rights violations by police departments.
While many white Americans may wish to return to the pre-civil rights era of the 1950s, Taibbi contends that circumstances have changed: “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 filed by the Fraternal Order of Police, which alleges that the city violated state labor law by unilaterally implementing 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 to review the charges.
The Illinois House passed a bill tightening the terms of a law banning “unlawful contact” between parolees and gang members. Under the bill, sponsored by State Representative Kelly Cassidy, parolees would need to be actively involved in gang-related activity to face arrest. The Senate will now consider the legislation.
“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,” wrote 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 criticized city lawyers for engaging in “pure sophistry” when rejecting their motion to dismiss Mark Maxson’s wrongful conviction lawsuit. Maxson spent 22 years in prison after detectives working under disgraced Commander Jon Burge allegedly coerced him into confessing to a murder. He was exonerated and freed in 2016.
Cook County prosecutors have indicated they are considering granting immunity to retired Detective Reynaldo Guevara to compel his testimony in support of the convictions of two men who claim 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 invoked the Fifth Amendment rather than testify. Two additional individuals who were convicted based on Guevara’s investigations were exonerated last month.
There is “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. Neither man had prior criminal records. They were held and questioned for over 40 hours after voluntarily appearing at a police station with a child who had been abducted during the murder. New DNA evidence recovered from a knife found under one of the murder victims excludes Reyes and Solache and instead points to an unknown individual, according to their attorneys.
A Chicago man was denied due process in an immigration proceeding after being erroneously placed in CPD’s “over-inclusive” gang database, according to a lawsuit. Wilmer Catalan-Ramirez alleges that he was “falsely labeled as a gang member” and subsequently “targeted by [Immigration and Customs Enforcement] because CPD shared this false information.” Catalan-Ramirez also claims that ICE used excessive force during an unlawful search and seizure.
Critics have long argued 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 continue to advocate for expanding protections for immigrants under the city’s Welcoming Ordinance.