Vol. 2, Issue 74: Chicago's Criminal Justice Playbook
At Issue: "Cover charges" Used to Justify Excessive Force
In two-thirds of police use-of-force incidents since 2004, victims were charged with resisting arrest or with aggravated battery or assault to a police officer—a “troubling pattern” in which defense attorneys argue that “cover charges” are used to conceal or justify excessive force (Chicago Reporter).
False cover charges are one of the most common types of misconduct alleged in lawsuits against the Chicago Police Department and have cost the city more than $33 million in legal settlements since 2011. False arrests can cause serious disruption in victims' lives, including job loss, legal costs, and criminal records. Aggravated battery to an officer, the most serious of the charges in question, carries a sentence of three to seven years in prison.
Between 2012 and 2016, 1,300 Chicagoans were charged solely with resisting arrest; more than half of them had their charges dismissed. When there is no underlying charge to justify an arrest, that raises “giant red flags” that the charge is being used as cover, according to Samuel Walker, a national expert in police accountability.
Officers who made the most arrests on aggravated battery or assault to an officer used force far more frequently than other officers. Twenty-three officers who filed such charges five or more times over a three-and-a-half-year period used force seven times more frequently than average.
One such officer is Bernard Ternand, recently cleared by the Chicago Police Board of unjustified use of force in the shooting death of 15-year-old Dakota Bright, who was unarmed. Ternand had 47 documented use-of-force incidents in less than nine years on the force; the average officer uses force less than once every two years.
In a rare case in which the Cook County State’s Attorney refused to approve cover charges, Ternand’s account of his arrest of a 22-year-old Far South Side man on an aggravated battery charge—after he had slapped and tackled the man—was contradicted by surveillance video. Ternand was not disciplined for the incident. The detective who recovered the video is suing CPD for retaliating against her in the case (Chicago Sun-Times).
PRE-TRIAL MOTIONS IN VAN DYKE COVER-UP TRIAL
Judge Domenica Stephenson rejected a motion to dismiss charges against three officers accused of covering up for Jason Van Dyke following the murder of Laquan McDonald (Chicago Tribune). Attorneys for former Detective David March, former Officer Joseph Walsh, and Officer Thomas Gaffney argued that the defendants' flawed reports on the shooting did not amount to a criminal conspiracy and that special prosecutors committed misconduct by misleading the grand jury that indicted them. Their trial is set to begin on November 26 (Chicago Sun-Times).
One defense attorney stated that Officer Dora Fontaine, expected to be a key prosecution witness, "is perjuring herself all over the place" (Chicago Tribune). Fontaine is expected to testify that March instructed her to file a report stating that Van Dyke was injured by McDonald and that March falsely claimed in another report that she told him McDonald had threatened Van Dyke (WBEZ).
The trial addresses a question left open by Van Dyke’s verdict: "How did the (officers') brazenly phony stories become the department's official narrative?" (Chicago Tribune). However, the trial will not address the role of command-level staff who approved the shooting and the subsequent cover story.
Meanwhile, Judge Vincent Gaughan scheduled a December 14 hearing on two motions by Van Dyke’s lawyers seeking to overturn his conviction for second-degree murder and aggravated battery. One motion challenges Gaughan’s refusal to change the trial’s venue, and the other argues that the shooting was justified.
Attorney Dan Herbert told reporters that if those motions are denied, he will argue that Van Dyke should be sentenced on the second-degree murder charge only. He may claim that the aggravated battery charges were inappropriately added and are only relevant in cases where someone is shot but does not die, according to one expert (WBEZ). The sentencing process is likely to extend into next year (Chicago Sun-Times).
The board of Lodge 7 of the Fraternal Order of Police voted to stop referring legal cases to Herbert, citing dissatisfaction with his handling of Van Dyke’s case. Herbert called the decision "politically motivated," and Van Dyke’s wife described it as "shameful" (Chicago Tribune).
NEW ALLEGATIONS AGAINST SERGEANT GUILTY OF ASSAULT AND BATTERY
A Chicago police sergeant, who remains under investigation by the department two years after taking a plea deal for sexual assault of a teenager, is now facing a lawsuit following a brutal beating outside a North Side gay bar on September 29 (Chicago Sun-Times).
More than a month after the incident, no criminal charges have been filed. Sgt. Eric Elkins, who remains on desk duty, earns $104,000 annually and will be eligible to retire next year with a $75,000 pension.
“It’s a code of silence. They protect their own,” said attorney Timothy Cavanagh. “They had probable cause to arrest [Elkins] weeks ago. But because it’s a Chicago police sergeant, nothing” (Chicago Tribune).
Cavanagh represents John Sherwood, who suffered a compound leg fracture in the attack. Sherwood is suing Elkins and his companion, Oak Park Officer Dwayne Jones, alleging that they kicked and punched him while he lay on the ground outside the bar. Sherwood’s partner was also attacked.
Elkins was previously charged with sexual assault of a teenager in Michigan in 2015. He pled guilty to assault and battery, avoiding registration as a sex offender, and served a year of probation. A CPD Internal Affairs investigation into that incident is ongoing (Chicago Sun-Times).
Elkins was also indicted in 2003 for allegedly conducting a sexual relationship with a student at Amundsen High School, where he worked as a security guard. However, Cook County Circuit Judge Kenneth Wadas acquitted him, stating the victim was not credible, despite the student providing a detailed sketch of Elkins’ apartment and phone records corroborating the account.
(In his earlier career as a Cook County prosecutor, Wadas was repeatedly rebuked by judges for “outrageous” and “reprehensible” tactics, and for “brazen misconduct” (Chicago Tribune). As a Circuit Court judge, he barred the defense from presenting evidence in a wrongful conviction case that led to a man spending 17 years in prison (Injustice Watch).
Despite these allegations, Elkins was promoted to detective and later to sergeant. Over his career, he has been the subject of 35 civilian complaints, including allegations of illegal searches, theft, and sexual harassment, but has never faced disciplinary action.
FINAL HEARING ON CONSENT DECREE
U.S. District Judge Robert Dow Jr. "listened intently" as scores of community members testified, sometimes tearfully, about their experiences with police abuse, while officers and police union representatives argued that a proposed consent decree would conflict with union contract protections and make the city less safe (Chicago Sun-Times, Chicago Tribune). The vast majority of public comments supported court oversight of the Chicago Police Department (CPD), with some calling for even more extensive reforms than those prescribed in the final draft (WBEZ).
Cook County Public Defender Amy Campanelli spoke about numerous clients who have been bruised and battered by police, highlighting a continuing pattern of police reports that conflict with physical evidence (Chicago Tribune).
Fraternal Order of Police (FOP) President Ken Graham asked Judge Dow if he would order a 30 percent pay increase to compensate for protections officers would be giving up under the consent decree (WBEZ).
After two days of hearings on the final draft of the consent decree between the city and state, Dow did not indicate a timeline for issuing the final decree.
In another hearing, four teams that are finalists in the selection of a monitor to oversee the proposed consent decree presented their qualifications (Chicago Tribune, Chicago Sun-Times).
Additionally, a federal appeals panel heard arguments in FOP's appeal of Dow's ruling dismissing their motion to intervene in the consent decree case. An FOP attorney argued that the union had not sought to intervene earlier because Illinois Attorney General Lisa Madigan’s office had assured them the consent decree would not infringe on bargaining rights.
The state’s deputy solicitor general responded that the decree explicitly states that its provisions cannot override the union contract but that city officials should use "best efforts" to achieve reforms through contract negotiations (Chicago Tribune).
CPAC ORDINANCE VOTED DOWN
The City Council’s public safety committee voted against an ordinance sponsored by Ald. Carlos Ramirez-Rosa (35th) to establish an elected Civilian Police Accountability Commission.
Ald. Walter Burnett (27th) opposed the ordinance, arguing that it would place the police department under the control of individuals "who don't like the police." In response, Ramirez-Rosa warned that aldermen who voted against the measure "are in for a rude awakening" in the upcoming February election (Chicago Tribune).
SEVEN MORE WATTS VICTIMS CLEARED
The Cook County State's Attorney agreed to vacate the drug convictions of seven more individuals who were framed by corrupt former Sgt. Ronald Watts and his team, bringing the total number of Watts' victims cleared to fifty (Chicago Tribune, Chicago Sun-Times).
"The question we've all got to start asking now is, 'What's next? Where's the accountability?'" said Joshua Tepfer of the Exoneration Project, who has represented many Watts defendants. "We've got officers who are still on this force, still getting paychecks."
Watts and one associate served short prison sentences for a minor crime, and 15 officers who were part of his team have been placed on desk duty pending an investigation.
Last year, two officers who investigated Watts won a $2 million whistleblower settlement. They alleged that CPD supervisors retaliated against them after Internal Affairs chief Juan Rivera leaked information about their investigation (The Intercept). Rivera retired in 2015.
ANOTHER BURGE VICTIM GETS A HEARING
Six years after the Illinois Torture Relief Commission first recommended a hearing on his motion for a new trial based on evidence that he was tortured by detectives working under Cmdr. Jon Burge, Gerald Reed appeared before Cook County Judge Thomas Gainer last week. Sentenced to life in prison based on his confession to a 1990 double murder, Reed has served 28 years in prison (Chicago Tribune).
The Torture Inquiry and Relief Commission found that a metal rod previously inserted in Reed's leg to correct a shattered knee was broken while he was in custody. Based on the evidence, the commission concluded that “the only plausible explanation...is the beating at Area 3 described by [Reed]” (Illinois Torture Inquiry and Relief Commission).
REPORT: JAIL POPULATION DOWN, BUDGET UP
While the population in Cook County Jail has declined from 10,838 in 2013 to 6,095 in 2018—a 40 percent decrease driven by reduced arrests and bail reform—the budget for the Cook County Department of Corrections has risen from $266 million to $363 million in the same period, according to a new report from the Chicago Community Bond Fund (Chicago Community Bond Fund).
Since 2013, Cook County has spent over $4 billion on the jail but just $17 million on the Cook County Justice Advisory Council, which funds community-based initiatives to reduce recidivism. The Chicago Community Bond Fund calls for diverting savings from the jail's budget to invest in reentry housing, counseling for victims of gun violence, jobs programs, and community development (Chicago Community Bond Fund).
In a report earlier this year on uprooting the region's legacy of segregation, the Metropolitan Planning Council called for eliminating wealth-based pretrial detention by prohibiting the use of money bail, arguing that resulting jail population reductions would save the county nearly $200 million a year (Metropolitan Planning Council).
HOPE COURT CLOSED
Cook County’s HOPE Court, launched in 2011 to help keep probationers out of prison through a combination of supportive services and targeted sanctions, was shut down last month. State officials eliminated funding for the program, stating that it was not serving its intended population.
In 2016, an outside review by the Chicago Appleseed Fund for Justice identified the court's presiding judge, Jackie Portman-Brown, as a significant issue, describing her as vindictive and bullying. Despite recommendations from HOPE Court supervisors, public defenders, prosecutors, and the county's probation department that Portman-Brown be replaced, Cook County Chief Judge Timothy Evans did not act on the suggestions (Injustice Watch).
HEARING ON CPD BUDGET
During the city's annual budget hearings, Superintendent Eddie Johnson defended a planned $95 million police academy, arguing that it is necessary to support training reforms outlined in the proposed consent decree (Chicago Tribune).
Mayor Rahm Emanuel’s proposed budget includes a $35 million increase in police spending over the previous year, bringing the total police budget to more than $1.5 billion out of the city's $10 billion budget.
The budget for legal costs related to police misconduct lawsuits has been increased from $20 million in 2018 to $35 million for the next fiscal year. In 2018, the city is projected to pay out $90 million for such lawsuits (WBEZ).
While overtime spending in 2017 was more than double the budgeted amount, Johnson stated that the department is on track to stay within its $95 million overtime budget this year. However, newly released figures indicate that the department will once again exceed this budget (Chicago Sun-Times).
JUDGE COGHLAN LOSES HIS SEAT
For the first time since 1990, Cook County voters rejected the retention of a sitting judge. Circuit Judge Matthew Coghlan was targeted for defeat by a coalition of community groups spearheaded by the newly formed Judicial Accountability PAC after he was sued for his involvement in wrongful convictions while serving as an assistant state’s attorney. The Cook County Democratic Party broke precedent by calling for Coghlan’s defeat. Coalition organizers stated that they hope to bring more attention to judicial retention in future elections (Injustice Watch).
“SOUTHSIDE”
The Marshall Project has published Southside, a collection of stories about criminal justice in Chicago. It features in-depth explorations of Kim Foxx's tenure as State’s Attorney, examining several pivotal cases by Steve Bogira; the legacy of Jon Burge by Natalie Moore; challenges facing individuals released from Cook County Jail by Nicole Gonzalez Van Cleve; a college student convicted of gun trafficking by John H. Richardson; and an unlikely prison friendship by Tori Marlan (Marshall Project).