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A Hell of a Deal

His job is to prosecute criminals. But if the criminals are cops, state's attorney Dick Devine doesn't want to hear about it. Now, with Devine offering inmates freedom to drop claims of torture, defense attorneys suggest a prosecutor to go over his head.

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Ordinarily, state's attorneys who desire reelection or higher office portray themselves as courageous crime fighters responsive to their communities, who leave no stone unturned to put evildoers in prison. Cook County state's attorney Richard Devine, now contemplating a run for governor, has recently turned that tradition on its head.

In a brief submitted to chief criminal court judge Paul Biebel Jr., Devine has proclaimed that he is powerless to do anything about a gang of policemen who may be responsible for 12 men wrongly sentenced to die. Though there is substantial community interest in these cases--both the Tribune and Sun-Times have called for an inquiry, as has a coalition of prominent community groups--Devine argues that nothing can be done. That he once served as attorney for the chief perpetrator, Devine says, is a moot point.

The gang is small, no more than two or three dozen veterans of the Area Two Violent Crimes unit who served too enthusiastically under the leadership of Commander Jon Burge. The police department's Office of Professional Standards, a federal judge, and city attorneys have all acknowledged that Burge and some underlings tortured suspects to get confessions. But what is common knowledge in police headquarters, City Hall, and the Dirksen Building has been ignored at the Criminal Courthouse at 26th and California. For the past four years, Devine and his assistant state's attorneys have regularly refused to admit in court that for more than a decade torture was a fact of life at Area Two.

They have held this position publicly even as they bargained with some of the alleged victims. The state's offer can be paraphrased as "Drop this claim of torture, plead guilty to the heinous offense you may not have committed, and after a decent interval we'll get you back on the street." Darrell Cannon, who was serving a life sentence for murder, accepted such a deal in January (see "What Price Freedom?" March 2, 2001). Negotiations for plea agreements are now under way with some inmates on death row.

No Illinois inmate has ever walked away from death row by dropping a claim that he was tortured by police. Indeed, various death penalty experts from across the United States, including Brenda Bowser of Washington's Death Penalty Information Center and University of Colorado professor Michael Radelet (the author of several books and studies on the death penalty), could name no other inmate in the history of the nation who got off death row this way. The benefit to the inmate, of course, is eventual freedom, but at the cost of damaging his prospects in a civil suit for wrongful imprisonment. The benefit to the prosecutors is that the police force comes off in a much more favorable light ("No torturers here"), the treasury may be spared tens of millions of dollars in damages for wrongful imprisonment, and the state's attorney doesn't look so bad for not pursuing the torturers.

This lack of official zeal has frustrated the victims' defenders for more than a decade. Now they have united in a legal strategy that threatens to make Devine himself moot. They are asking Judge Biebel to bypass the state's attorney's office and appoint a special prosecutor.

The last time the Chicago police were suspected of such gross misconduct that a special prosecutor was appointed was in 1970, a few months after police, ostensibly looking for weapons, killed Black Panther leaders Fred Hampton and Mark Clark. Special prosecutor Barnabas Sears ended up indicting state's attorney Edward Hanrahan and his top aide as well as 12 policemen, all for obstruction of justice. (All were eventually acquitted, but Hanrahan's career never recovered.) While no one believes Devine deserves indictment, the mere appointment of a prosecutor over his objections would stand as a stark public judgment that he has failed in his duties.

Eleven years have passed since the Reader first pointed out the pattern of torture allegations emanating from the Area Two Violent Crimes unit, accusations that detectives had used electric shock, suffocation, mock execution, beatings, and hanging by handcuffs to get confessions. Those revelations came after a federal trial in the civil suit of Andrew Wilson, a convicted cop killer who claimed to have been shocked, burned, and suffocated by Burge and detectives under his command. Wilson was represented by the People's Law Office, and during the course of the civil proceedings, anonymous letters in police department envelopes began to arrive at the PLO's office. The letters indicated that Wilson had not been the first suspect to be given electric shock, that the electrical devices belonged to Burge, and that Area Two detectives were split into "Burge's ass kickers" and "weak links" (detectives who didn't join in). One letter contained the name of another victim who'd been shocked nine days before Wilson, and when PLO attorneys located him he led them to others. Over several years the PLO built up a list of 66 people who claimed they had been tortured by Burge and detectives under his command at Area Two and Area Three. It's an impressive list, with the first complaint made in 1973 and the last in 1991, but almost certainly incomplete. To determine the actual number of victims, someone would have to reexamine thousands of police and court records. Only a public agency or some sort of legally mandated truth commission would have that capability, and 11 years after the possible scope of the scandal became public knowledge, no capable government body has shown any interest in the task. It is possible that hundreds of people were tortured and conceivable that many confessed to crimes they did not commit.

In late 1990, two reports prepared by the Office of Professional Standards concluded that abuse at Area Two was systematic and included "planned torture," and that Commander Burge had indeed used electric shock devices to torture Andrew Wilson after his arrest for killing two policemen. Police superintendent LeRoy Martin, who had once served as Burge's supervisor at Area Two, sat on the reports for a year before asking the Police Board to conduct an inquiry. In the meantime, the city fought to keep the OPS documents from the public eye, eventually losing that battle in federal court. Upon their publication, Mayor Daley, who had been state's attorney at the time, dismissed the OPS reports as nothing more than allegations.

The Police Board--a body charged with sorting out personnel issues, not with the administration of justice--began hearings into the case of Andrew Wilson on February 10, 1992. One year later, the board handed down its judgment. Two detectives were suspended for 15 months and Burge was thrown off the force. But though the board indicated in its vaguely worded decision that its members had been impressed by the testimony about electric shock devices, it didn't say that Burge had used them. It concluded that Burge "did...strike and/or kick and/or otherwise physically abuse or maltreat" Wilson.

A little more than a year later, city attorneys changed sides. Until March 28, 1994, members of the city corporation counsel's staff had insisted that torture had never occurred at Area Two. On that date they declared their belief that Burge was indeed guilty, and the city's lawyers later characterized the abuse as "savage torture." The reason for the startling about-face, however, was not concern for victims or justice but rather a desire to escape liability for any damages that might be awarded. The city argued that torture was "beyond the scope of employment"--in essence that Burge had exceeded his job description--and therefore that Burge should pay, not the city. In 1997 the U.S. Court of Appeals dismissed this argument as frivolous, and the city paid more than a million dollars in damages.

In late 1998 the Sun-Times called for a judicial inquiry, and in July 1999, more than nine years after the torture became widely known, the Tribune did the same. In between came a significant opinion from U.S. District Court judge Milton Shadur. In granting an evidentiary hearing to death row inmate Andrew Maxwell that March, Shadur wrote, "It is now common knowledge that in the early to mid-1980s Chicago Police Commander Jon Burge and many officers working under him regularly engaged in the physical abuse and torture of prisoners to extract confessions." Despite the dawning public realization that something had likely gone very wrong under Burge's command, neither the Cook County state's attorney nor the U.S. attorney mounted any criminal investigation of the torturer, and no public agency attempted a wholesale review of the convictions of the alleged victims.

Twelve men are now on death row on the basis of confessions extracted by Burge and/or detectives under his command, and the lack of any state or federal investigation has meant that the victims--most of them indigent--have had to do what prosecutors haven't: make a case that torture was used at Area Two. With limited resources and none of the clout a prosecutor can wield in getting reluctant witnesses and coconspirators to testify, the Area Two complainants have been at a severe disadvantage, especially when they appear at 26th and California. Even today, with the scandal in its 11th year of publicity, no circuit judge in Cook County has been willing to accept that a torture ring existed; not one of the Area Two victims' alleged confessions has been suppressed by a 26th Street judge.

Last winter, however, it seemed as though one victim had a fair chance of getting his confession thrown out. Darrell Cannon, an El Rukn general who was convicted of a 1983 murder and sentenced to life, had been granted a new hearing in a 1997 decision written by Appellate Court judge Warren Wolfson. Wolfson indicated that Cannon's claims of torture were to be heard in full, with ample testimony from other victims. Cannon claimed that he had been beaten with a flashlight, shocked on the genitals with a cattle prod, and subjected to a mock execution at the hands of Detective Peter Dignan (now a lieutenant), Sergeant John Byrne (now a disbarred lawyer working as a private investigator), and Detective Charles Grunhard (now deceased). After Cannon's witnesses were heard, the state's attorney's office decided to plea-bargain. Much was at stake. If the policemen looked bad on the witness stand--and there was good reason for the state to entertain such fears--and the judge suppressed Cannon's confession, the decision would reverberate through the rest of the Area Two torture cases. If these officers could not be believed in this case, how could they be believed in others? Devine's office offered Cannon a deal he couldn't refuse: freedom in approximately two and a half years if he would plead guilty to lesser charges and drop his claim that he'd been tortured. Cannon was furious, as he had hoped to see the policemen grilled on the witness stand, but he ultimately listened to the advice of his lawyers and took the deal.

Cannon's defense team--two lawyers from the People's Law Office (Flint Taylor and Tim Lohraff) and two from the Northwestern Legal Clinic (Tom Geraghty and Cathryn Stewart)--were beset by conflicting emotions. While pleased that their client would go free, they felt deprived of a golden opportunity. For the first time in a criminal case, a fair-minded judge had heard the testimony of multiple other victims, and for the first time, former Area Two personnel were going to be forced to explain, under oath, how their small group, on a force of more than 13,000 policemen, had accumulated so many similar complaints of torture from defendants who did not know one another. Cannon's attorneys could imagine Devine offering similar deals to other Area Two victims, with the result that the perpetrators of the torture would never appear in court for a thorough cross-examination about multiple cases. Frank Ralph, who had won the favorable opinion from Judge Wolfson in Cannon's appeal, had trouble sleeping as he mulled over the outcome of the case, and on one of those fitful nights he had an idea. Why not bypass Devine? Why not petition the chief judge to appoint a special prosecutor to investigate the policemen?

The idea was received enthusiastically by various lawyers representing Area Two victims, and they and other defense attorneys contributed ideas and legal theory. The law provides that such petitions can be filed by private citizens, and three signed on as the formal petitioners: prominent civil rights attorney Lawrence Kennon, Citizens Alert director Mary Powers, and Mary Johnson, mother of Michael Johnson, who claimed that he had been tortured in 1982. They were joined by 13 community groups, including the Chicago Council of Lawyers, the Cook County Bar Association, Amnesty International, the Rainbow/PUSH Coalition, the National Lawyers Guild, the Justice Coalition, Citizens Alert, and the Campaign to End the Death Penalty. Locke Bowman, director of the MacArthur Justice Center, and Randolph Stone, former chief public defender of Cook County and director of the University of Chicago's Mandel Legal Aid Clinic, agreed to represent the petitioners. Both were well regarded in the legal community, and as neither represented an Area Two victim, they couldn't be written off as paid advocates of a desperate convict.

On April 5, Stone and Bowman submitted a brief that asked Judge Biebel to appoint a special prosecutor "to investigate any and all wrongdoing arising out of abuse of suspects by police officers under the command of Jon Burge...from 1973 until the present." The petition first established the neglect of prosecutors past and present, arguing that hundreds of serious crimes committed in the course of the torture had gone unprosecuted. "Each act of torture--whether by electroshock, burning, Russian roulette, suffocation, or merely striking with a phone book, constitutes a violation of the armed violence statute (intimidation or official misconduct while armed with a dangerous weapon), a Class X felony." And since a typical incident might involve multiple acts of torture by three or four officers, "as many as twenty separate convictions for the offense of armed violence would be justified, such as where four officers subjected a suspect to five different acts of torture." The petitioners argued that lesser offenses like perjury, intimidation, official misconduct, compelling a confession by force, and aggravated battery were also committed regularly.

Stone and Bowman acknowledged that most of those crimes were now beyond prosecution, the statute of limitations having expired years ago on that range of felonies. The attorneys went on to suggest, however, that the officers could still be prosecuted for two offenses relating to the continuing cover-up of the torture: obstruction of justice and conspiracy to obstruct justice. It is illegal to obstruct the defense of any person, and hiding the fact that a man's confession was coerced certainly interferes with that man's defense. Stone and Bowman argued that a conspiracy was obviously afoot among those who served under Burge, as "there is no innocent explanation for the consistency of such lies in each and every case. The inescapable conclusion was that the officers in each of these cases conspired together to obstruct justice by agreeing that all should tell the same lie."

In Stone and Bowman's interpretation of the law, the statute of limitations that precluded prosecution for the Class X felonies did not preclude it for obstruction and conspiracy. The two attorneys argued that under Illinois law conspiracy is a continuous offense, meaning that the three-year statute of limitations begins to run anew with each overt act performed by a conspirator in furtherance of the conspiracy. The petition pointed to several recent overt acts by alleged conspirators: depositions in various Area Two cases in which detectives claimed no torture had taken place, and interviews given to the media by Lieutenant Dignan and retired sergeant Byrne. A full investigation, Stone and Bowman wrote, would disclose other recent acts, and these acts did not have to be illegal in themselves if they furthered the original conspiracy.

Having presented the need for prosecution, the petitioners went on to argue that Devine and his employees should not be entrusted with the job because they would labor under a significant conflict of interest. The petition pointed out that a thorough investigation would be likely to jeopardize a significant number of convictions won by county prosecutors, and that the state's attorney's office employs men and women who would be witnesses and possibly targets of this investigation, among them investigators who'd once served as detectives under Burge and assistant state's attorneys who'd worked on the Area Two cases and were aware of the torture or should have been aware of it, and who should have stopped or reported it.

More pointedly, the petition argued that Devine had a particular interest that would not be served by a thorough investigation. From 1980 until 1983, Devine served as first assistant state's attorney, second in command to state's attorney Richard M. Daley, and it was during this period that much of the torture occurred, including the electroshocking, burning, and suffocation of Andrew Wilson. After leaving the state's attorney's office, Devine went to work for Phelan, Pope & John, the law firm that eventually represented Burge at the Police Board hearings and in Andrew Wilson's civil suit. While most of that defense work was done by other lawyers in the firm, Devine did step in at one point, billing the city $4,287.50 for 24.5 hours of his services as Burge's attorney.

In two briefs filed in the case thus far, Devine and assistant state's attorney Gerald Nora have worked hard to reframe the argument. While the petitioners' central point is that Devine labors under an obvious conflict of interest, Devine virtually ignores that issue. Referring to the 24 hours he spent defending Jon Burge, Devine wrote, "The question of whether my involvement in that case created a conflict has always been moot, because the statute of limitations ran on any potential criminal actions relating to Burge and others long before I became State's Attorney." In their second filing, Devine and Nora argued that "this conflict argument is irrelevant." And in 34 pages of arguments and exhibits, that is just about all Devine has to say on the issue.

Devine's central argument is that if there is no case to be prosecuted, then the conflict of interest issue is beside the point, and his briefs are devoted to attacking the petitioners' argument that there have been crimes committed by the Burge gang that are not barred from prosecution because of the three-year statute of limitations.

In crafting his reply to the petition, Devine made an effort to appear to have reached his conclusions independently of his past association with Burge. Devine wrote a letter to Norbert Goetten, director of the state's attorney's appellate prosecutor's office, asking him to appoint an independent prosecutor to look over the petition. Devine's letter spelled out clearly that the conflict of interest issue was not to be part of the analysis, that the appointee's job would be to determine if there were "well-pleaded facts alleged in the petition which establish a legally sufficient and viable cause of action under a continuing conspiracy theory, thus requiring a state's attorney to consider whether or not to open a criminal investigation."

Goetten chose John Barsanti, a lawyer he'd hired in the past to prosecute serious cases and to instruct staff attorneys. Barsanti served as an assistant state's attorney in Kane County for 21 years, rising to the position of first assistant before leaving the office in 2000. He has prosecuted more than 225 felony cases, including 22 death penalty cases.

Barsanti filed a six-page, single-spaced opinion whose second paragraph revealed a disturbing lack of familiarity with the case. According to Barsanti, several policemen, including Burge, had been dismissed from the force as a result of the allegations of misconduct. In fact, only Burge was dismissed. Barsanti, clearly without the benefit of extensive knowledge of the Area Two cases, concluded that the facts contained in the petition "fail to establish the existence, within the statute of limitations, of a conspiracy to thwart either the prosecution or defense of any person, or any non-conspiracy offense not barred by the statute of limitations." Devine and Nora attached the Barsanti letter as an exhibit to their brief, displayed its conclusion prominently, and put forward some of Barsanti's arguments as well as some of their own.

In Barsanti and Devine's interpretation of the law, conspiracy is not a renewable offense. It includes "subsequent acts of concealment [of the original crime] but only if those efforts are proximate in time...a matter of hours and days, not years or decades." Devine argued that as Burge was removed from his last command on November 12, 1991, the statute of limitations for conspiracy would have expired three years later, assuming that one could prove that a conspiracy existed in November 1991.

Devine went on to argue that even if one assumed the petitioners were correct in their interpretation of the law, there would be nothing to prosecute unless one could show that (1) a conspiracy existed in November 1991, and (2) the actions furthering the conspiracy continued from 1991 to 2001 with no three-year hiatus. The petition, Devine pointed out, cited five instances of alleged conspiratorial actions, but all fell between December 1999 and March 2001. Some had been denials that any torture had taken place, and Devine argued that the petition had not shown that the denials were untrue. Furthermore, "exculpatory denials" do not constitute obstruction of justice; if they did, then every person who denied committing a crime and subsequently was convicted of it could be indicted for obstruction of justice.

Another of the alleged conspiratorial acts had involved police testimony in a 1999 deposition in the case of Madison Hobley. On trial for murder in 1990, Hobley claimed he'd been tortured, and he tried to introduce evidence showing that a man named Stanley Howard had been tortured by the same detectives in the same manner, but the judge refused to allow it. In 1994 the Illinois Supreme Court upheld the trial court, writing that the two incidents, separated as they were by 38 months, were too distant in time. By 1998 Hobley had additional evidence of a pattern of torture at Area Two, but the supreme court ruled that he could no longer raise the issue because it had been ruled upon earlier. Therefore, Devine and Barsanti reasoned, no officer testifying could obstruct Hobley's coercion defense because there was no longer any coercion defense to obstruct.

Devine concluded that the petitioners offered speculation, not facts, and in Devine's interpretation of the law, facts were required.

The petitioners fired back promptly. In their reply to Devine's brief, Stone and Bowman argued that Devine's framing of the petition was completely faulty, that it wasn't their burden to present a completed investigation that showed that the policemen were demonstrably guilty. Indictments are issued at the end of investigations, the petitioners argued, and they had only to show a reasonable basis to suspect continuing criminal activity. They cited the American Bar Association's Criminal Justice Standards, a document that states that suspicion of illegal activity triggers the prosecutorial duty to investigate.

Stone and Bowman went on to argue that their petition was not mere speculation, that their charges did not lack factual support. They provided more than ten recent examples of former Burge personnel denying torture as well as evidence indicating that those statements might well be false. Retired sergeant John Byrne's March 1, 2001 deposition in People v. Aaron Patterson was the source for the most glaring examples:

Byrne said he "vaguely" recalled being involved in the interrogation of a man named Lee Holmes in 1982 and did "not recall any torture" taking place. Holmes had claimed that Byrne and Dignan suffocated him with a plastic bag and struck him in the chest, back, and genitals with a flashlight and a rubber hose. An OPS investigator later recommended that allegations against Dignan for excessive force be sustained.

Byrne testified that "nothing was done to Alonso Smith to obtain his confession." Smith claimed that on January 22, 1983, Byrne and Dignan beat him and suffocated him with a plastic bag, and Cermak Hospital medical records indicate that Smith was treated for "multiple blunt trauma" shortly after his interrogation.

Byrne testified that neither he nor Dignan had mistreated Darrell Cannon "in any way, shape, or form." An OPS investigator sustained charges that on November 2, 1983, Byrne had stuck Cannon with a cattle prod on his genitals and mouth.

Byrne denied beating Gregory Banks and said that neither he nor anyone that he'd seen had put a plastic bag over Banks's head after his arrest on October 28, 1983. An OPS investigator sustained charges that Byrne had failed to report the use of excessive force against Banks, had filed a false report, and had testified falsely at Banks's hearing on a motion to suppress his confession.

As for Devine and Barsanti's argument that Hobley, for example, had no coercion defense to obstruct anymore, Stone and Bowman pointed out that false information furnished in Hobley's case would have obstructed the defenses of ten Area Two victims now engaged in postconviction and other proceedings. Judicial recognition that Hobley had been tortured would have lent critical support to the claims of those ten men, and thus an obstruction of Hobley's defense amounted to an obstruction in at least ten current cases.

The petitioners also challenged Devine's statement that the policemen's claims of innocence constituted "exculpatory denials," which are unfertile grounds for obstruction charges. Exculpatory denials, Stone and Bowman argued, are made to investigating authorities, usually by people in custody responding to the questions of a police officer, while these statements were made outside of any pending investigation of the officers. Some were made to the news media by Burge personnel who sought out reporters in order to present their version of events. Furthermore, some of the statements were blanket denials that any torture took place at anyone's hands. An officer making that claim puts himself in the position of an exculpating witness, which is a role not covered by the exculpatory denial defense.

Devine's office responded to the petitioner's reply with a new and bitter tone, filing a document notable for its outrage. Citing the ABA Model Standard's threshold for opening an investigation--reasonable suspicion of criminal wrongdoing that other law enforcement agencies are not adequately investigating--Devine argued that it was not pertinent because the statute of limitations had expired, even on conspiracy. In their petition, Stone and Bowman had argued that the public would be served by a special prosecutor not only because the guilty would be charged, but also because an investigation would clarify what injustices had been visited upon the citizenry by Burge and his colleagues, how the criminal justice system had managed to overlook those injustices for decades, and whether OPS served any meaningful role in stamping out police misconduct. Devine portrayed this as asking the state's attorney to do something improper. "It would be unethical for a prosecutor to undertake investigations on time-barred crimes merely because (as the Petition argues at paragraphs 14 and 15) the investigations might clarify the historical record or satisfy public demand." Prosecutors, Devine argued, derive their power to investigate from the grand jury, and the grand jury is supposed to hear evidence and indict or not indict. "It is not empowered to issue general, social reports....The grand jury is not a study commission."

Devine didn't address the petitioners' argument that it wasn't their job to present a completed investigation, that all they had to do was show reasonable grounds for suspicion, nor did he allow that they had raised any grounds for suspicion that a prosecutable crime had been committed. In Devine's view, Sergeant Byrne's denials of abuse in that March 1, 2001, deposition in People v. Aaron Patterson did not suggest that an investigation was warranted. Devine insisted they were mere exculpatory statements and therefore unprosecutable even if untrue. Furthermore, Devine interpreted the case law to indicate that obstruction is committed when someone knowingly or willfully gives false information to a police officer--and Byrne and the other officers had made their allegedly false statements not to law enforcement personnel but to attorneys and journalists. Devine maintained that the only allegedly false statements the officers might have made to police officers were their original reports, and "any continuing conspiracy to conceal that wrongdoing would persist for only hours or days after that time."

In Devine's view, the petitioners had failed to show any conspiracy existed. They had cited repeated allegations of torture, but that was redundancy, Devine said, not conspiracy. Repeated allegations by one group of persons against another, coupled with denials by the accused group, did not establish a conspiracy. For Devine, apparently, repeated allegations did not arouse suspicion either.

Devine insisted that his office had never admitted that anyone had been tortured at Area Two, not even Andrew Wilson, whom the city of Chicago agreed had been given electric shock and burned against a radiator. In Devine's view, all he had were allegations of physical abuse that he was prevented from investigating because they were time-barred, and he must be careful not to tread on the rights of his former clients. Former clients of state's attorneys, he wrote, should not be "more vulnerable to ill-founded requests for special prosecutors than are other citizens....When an attorney becomes a State's Attorney, his clients do not thereby suffer unequal protection of the law and become more vulnerable than other citizens to such unfair investigations."

Lastly, Devine expressed surprising concern about the Area Two victims. In Devine's view, the appointment of a special prosecutor and the convening of a grand jury "would only serve to halt those post-conviction proceedings which are examining the patterns and practices at Area Two." He specifically argued that the current supreme court-ordered hearing in the case of Aaron Patterson--a hearing scheduled to start later this year--"increases the threshold" for justifying the appointment of a special prosecutor. This was because such an appointment would turn deposable police officers into criminal suspects who might be more likely to plead the Fifth Amendment than answer questions, and therefore bring Patterson's proceedings to a halt. Patterson, Devine claimed, would want to interrupt the proceedings only "if his objective were to achieve virtual life imprisonment, through suspended post conviction proceedings."

This was some argument. It suggested that Byrne and Dignan and other former Area Two detectives would tell the truth when asked about torture, perhaps admit if they had done it, but only if they weren't targets of prosecution. In essence, Devine was telling Judge Biebel, "Don't appoint a special prosecutor. These claims deserve a full hearing," though when given the chance for a full hearing in the Cannon case last winter, Devine had sabotaged it. The remarkable deal given to the El Rukn general--an exchange of a life sentence for three more years in jail--was offered in large measure because the state did not want to put Byrne and Dignan on the stand. There is no reason to believe that Devine might not produce similar deals every time Burge squad veterans were about to be cross-examined.

And there is some question as to the whole notion that the postconviction proceedings would come to a halt with the appointment of a special prosecutor. The state might make a motion to that effect, but a judge wouldn't necessarily grant it--cases proceed all the time in which witnesses are called who do not want to testify. (Imagine the shoe on the other foot: a defense lawyer asks a judge to halt the prosecution of his client because a witness he wants to call is going to claim Fifth Amendment privileges. Do you think the judge would halt the proceedings?) One defense lawyer involved in the Area Two litigation says he would be delighted with the change in the status of police witnesses. He argues that a parade of policemen proceeding to the witness stand and invoking the Fifth Amendment would impress many judges at 26th Street accustomed to seeing such behavior from mafia and street gang members. In such a case, who would the judges believe--a man who said he was tortured or a policeman who would not answer questions?

Judge Biebel will hear oral arguments on October 29. If he agrees to appoint a special prosecutor, he may solicit suggestions from both the state's attorney and the petitioners. For a case of this magnitude, he could be expected to choose a blue-ribbon candidate, someone whose credentials are unassailable. Barnabas Sears, the special prosecutor in the Black Panther case, was a former president of the Chicago Bar Association who, earlier in his career, had prosecuted Chicago policemen from the Summerdale District who had formed a burglary ring. When the Police Board conducted hearings in the Burge case, former assistant U.S. attorney Dan Reidy was brought in to prosecute. Reidy is considered the architect of the 1980s Operation Greylord investigation into court corruption, which resulted in the convictions of more than a dozen judges and more than 40 lawyers.

Upon appointing a prosecutor, Biebel would have to define the job. It seems likely that Biebel would empower the attorney to investigate allegations of a variety of crimes stemming from misconduct committed by Burge and officers who served with and under him. During his career, Burge served as a supervisor in Area Two, Area Three, and Bomb and Arson, and thus the actions of a fair number of detectives could come under the microscope. At least three detectives who served under Burge at Area Two later moved to Area One and have been accused of framing suspects there, and it may be that Burge alumni also took their practices to Areas Four and Five, to various district stations, and to special units like Narcotics and Organized Crime. It is also conceivable that an officer who engages in excessive force and lies about it on the witness stand is prone to other forms of misconduct as well, and information about those practices might turn up. Thus the special prosecutor's staff could find itself either investigating a variety of charges of corruption or referring such cases back to Judge Biebel. In that event, Biebel could broaden the mandate, appoint another prosecutor, or refer the cases to Devine's office or to the U.S. attorney.

If a police officer or former officer were convicted of conspiracy or obstruction in circuit court, he might expect a sentence of no more than three years, which in reality would mean a year and a half in prison once credit were applied for good behavior. However, if the defendant were convicted of multiple counts of conspiracy or obstruction, a judge could order that the sentences be served consecutively, and thus it is possible that a particularly active conspirator or torturer could face several 18-month stretches.

If Judge Biebel declines to appoint a special prosecutor, the petitioners have the right to appeal the ruling. If their efforts in state court come to nought, they also have some options available in the federal system. At this point they have not laid out a strategy for pursuing them.

For the moment, the matter rests with Judge Biebel. The victims of Area Two have nothing to lose at this point--if Biebel denies the petition, they will be no worse off than they are today. Devine, on the other hand, is in something of a corner. He has no good answer for the question "Was there torture at Area Two?"

If his response is no, then he must be asked, "If the state's attorney's office has never investigated the policemen, how can you say there was no torture? If the only government bodies that have investigated it--the Police Board and the Office of Professional Standards--concluded that the police were guilty, how can you unequivocally say they are not?"

If he says, "Yes, there was torture at Area Two," then he admits not only that he knows the police committed Class X felonies and got away with it but that he is putting those officers on the stand knowing they are liars, knowing they may be framing innocent men.

If Devine says, "I don't know if there was torture at Area Two," then he must acknowledge that his star witnesses might be Class X felons obstructing justice every time they take the stand, but that he doesn't want to know and doesn't want anyone else to know, though such willing ignorance could result in the deaths of a dozen men.

John Conroy can be reached by E-mail at Jconroy329@aol.com.

Art accompanying story in printed newspaper (not available in this archive): illustration/Kurt Mitchell; photos/Lloyd DeGrane, Randy Tunnell.

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