By John Conroy
More than 18 months ago, the Reader reported that Darrell Cannon was soon to appear in Cook County Circuit Court and charge that three Chicago police officers tortured and sexually assaulted him. The police were investigating a murder that took place on October 26, 1983. Cannon was arrested by Detective Peter Dignan (now a lieutenant assigned to District 21), Detective Charles Grunhard (now deceased), and Sergeant John Byrne (now a disbarred and disgraced lawyer), who picked him up in the early morning of November 2, 1983. Cannon says he was addressed as "nigger," beaten about the knees with a flashlight, and driven to a remote site on the southeast side. There, Cannon claims, the officers performed mock executions, jerked his cuffed hands up behind his back, pulled his pants and undershorts down to his ankles, and applied a cattle prod to his testicles, penis, and mouth.
After Cannon was convicted of the murder and sentenced to life in prison, his case bounced up and down through the appeal process. In 1997 the Illinois Appellate Court ordered that Cannon's motion to have his confession suppressed deserved a second hearing. That proceeding promised to be a historic showdown in the long-running saga of torture at Chicago's Area Two. Ever since it was reported in the Reader in 1990, it has been widely known that torture was used by certain policemen assigned to the violent crimes unit at Area Two, led by Commander Jon Burge. Burge was thrown off the police force in 1993 amid allegations that he and some detectives under his command had delivered electric shock to cop killer Andrew Wilson, in addition to suffocating him with a plastic bag and burning him against a radiator. The Cannon suppression hearing in September 1999 marked the first time a judge would hear testimony from a significant number of alleged victims and at least two alleged perpetrators.
Those familiar with the Area Two cases had a pretty good idea of what the alleged victims would say because they had said it before, usually to a judge not willing to allow that Chicago policemen would engage in torture. Dignan and Byrne, however, were a different story. They had testified in individual cases, but they'd never been asked to explain how, on a police force of 13,000 officers, so many accusations of torture came to be laid against them and a relatively small number of their colleagues at Area Two. They'd never been asked how it was that men arrested in different places at different times with no known connection to each other described such similar methods and techniques.
In Los Angeles, revelations that suspects were framed, punched, kicked, choked, and beaten by 70 policemen from the Rampart Division has resulted in a systematic reexamination of cases in which the accused cops took part. The review began after LAPD officer Rafael Perez was arrested for stealing cocaine from evidence lockers. Perez admitted committing perjury in hundreds of cases, indicating it was standard procedure in his unit. His confession launched an investigation of approximately 1,000 cases, and so far more than 100 convictions have been thrown out. Forty officers have been disciplined, including five who were fired. Nine of the policemen under suspicion have resigned. One has retired. By the end of December, 30 officers had pending or ongoing disciplinary trials taking place.
In Chicago, the corruption allegations have been made in older cases and against fewer policemen. No systematic investigation has been attempted. No one has any idea how often torture was used by Burge or his detectives. In 1989, while representing Andrew Wilson in his civil suit against the city, lawyers from the People's Law Office began collecting the names of people who said they were abused by that crew. The list grew after PLO attorneys began receiving anonymous letters in police department envelopes from someone who seemed to work at Area Two. The letters indicated that the electrical devices used on Wilson had been used before, and the writer went on to suggest that the attorneys might want to talk to a man named Melvin Jones. Jones, it turned out, claimed to have been shocked nine days before Wilson was. He led the PLO to other alleged victims, and as word spread that some attorneys were interested in torture at Area Two, other historical accounts surfaced.
The PLO now has the names of more than 60 people who claim to have been abused by Burge and detectives under his command during the years he served at Areas Two and Three. The first torture incident occurred in 1973 and the last in 1991. The haphazard nature of the data collection suggests that the list is far from complete.
There is no indication that federal and state prosecutors have been particularly bothered by this, although among the alleged victims are 11 men on death row. So far, Andrew Wilson is the only man who has had a hearing featuring more than one victim and police officers questioned about more than one case.
That exploration of the evidence, however, occurred not in state or federal court but before the Chicago Police Board, a body that is charged not with the administration of justice but with resolving employment issues. That proceeding had been prompted by a 1990 report by Office of Professional Standards investigator Francine Sanders. Sanders had concluded that in February 1982, Burge had subjected Wilson to electric shock and burning against a radiator after Wilson was arrested for murdering officers William Fahey and Richard O'Brien. Although a separate OPS report by investigator Michael Goldston had concluded that abuse was "systematic" at Area Two and that it included "planned torture," it was not in the Police Board's brief to reach a conclusion about anything more than the treatment of Wilson.
In a written opinion issued in February 1993, the board concluded that Wilson had been burned at Area Two, but they did not say who did the burning. They noted that they were impressed with Jones's testimony about receiving electric shock torture about a week before Wilson, but the board never said that Burge or any other officer had shocked anyone, nor did they use the word torture. They concluded that Burge did "strike and/or kick and/or otherwise physically abuse or maltreat Wilson." The board members, appointed by the mayor, seemed afraid to shine too much light in so dark a corner. They threw Burge off the force, suspended two of his detectives for 15 months, and haven't dealt with the scandal since.
In Chicago, prosecutors have excused themselves from pursuing the perpetrators, arguing that the statute of limitations prevents them from doing so. Defense attorneys take a different view, arguing that the crimes are ongoing, that justice in these old cases is obstructed daily when torturers remain silent or when they falsely swear no force was used to extract a confession. Prosecutors have also excused themselves from the sort of systematic reinvestigation of closed cases now under way in Los Angeles, which might not land the perpetrators in the dock but which could spring the victims. Despite this lack of official response, and despite the checkered backgrounds of many of the alleged victims, the evidence of torture is so compelling that the allegations have achieved broad acceptance as fact.
In 1996 the city's own attorneys argued that "savage torture" had occurred at Area Two. (Their motive was escaping financial liability for abuse by officers. Their argument: that torture exceeded the officers' job descriptions.) And in granting an evidentiary hearing to death row inmate Andrew Maxwell in March 1999, U.S. District Court judge Milton 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." Maxwell's lawyers are arguing before Shadur that Cook County prosecutors knew, or should have known, long ago that torture was being used at Area Two and that they were bound by law to turn over that evidence to Maxwell's public defender.
But what is common knowledge in City Hall and federal court has yet to be recognized in the office of Cook County state's attorney Richard Devine. Devine served in the state's attorney's office in the 1980s, when many of the Area Two cases were prosecuted. Asked twice by Carol Marin on 60 Minutes II if there was any doubt that there had been torture at Area Two, Devine evaded the question both times. Asked by NBC News correspondent Geraldo Rivera if there was a pattern of torture at Area Two, Devine said, "Defense attorneys have made that allegation....They have attempted to combine a number of cases under the rubric of that allegation and by doing so they have attempted to create an image that all these cases are exactly the same and they are not."
The lack of any state or federal investigation has meant that Cannon and others on the People's Law Office list have had to do what prosecutors haven't--make a case that torture at Area Two affected the outcomes of their trials. With limited resources and none of the clout a prosecutor can wield in getting reluctant witnesses and conspirators to testify, the Area Two complainants have been at a severe disadvantage. Many of them have felony records and are unsympathetic victims. Darrell Cannon, for example, has been identified in police documents as a general in the El Rukn street gang. Some have no physical scars to show for the torture they allege. (Electric shock and suffocation, two of the preferred techniques of torturers everywhere, leave no physical marks.) Finally, Cannon and others have had to make their case to an audience that doesn't seem to want to hear it. Even today, with the scandal in its 11th year of publicity, no judge from the criminal courts at 26th and California has been willing to accept that a torture ring existed; not one of the Area Two victims' confessions has been suppressed by a 26th Street judge.
The Illinois Supreme Court has been equally reluctant to acknowledge that a torture ring operated at Area Two, even though the judges have dealt with a series of cases naming the same officers, the same locations, and the same techniques. In rulings on those cases between the years 1987 and 1998, the state's highest court established three hurdles for Area Two victims. The judges demanded that a defendant who wanted to bolster his own claim of torture by presenting another man's testimony of torture by the same policemen could not do so unless the two alleged victims had been tortured (1) with the same methods; (2) within a relatively short period of time; and (3) with the result of demonstrable physical injury.
These rules have been applied with a certain rigor. Madison Hobley and Stanley Howard alleged that they had been tortured by the same detectives from Area Two using some of the same techniques, but Hobley was not allowed to mention Howard's case because three years separated the two cases and because Hobley, who claimed he had been suffocated, had no physical injury to display. Hobley remains on death row for a crime he may not have committed. Illinois Appellate Court justice Alan Greiman, writing in People v. Hinton, another Area Two case, sardonically characterized the supreme court's guidelines as "the reasonable and prudent torturer rule," saying the rules provide protection "for one who tortures with care." Greiman, suggesting the supreme court was divorced from "the real world" on this issue, nonetheless felt bound to follow the law they had laid down. Leonard Hinton had claimed Area Two detectives had suffocated him twice and shocked him on the genitals three times. He had been arrested 23 days after Cannon, but like Cannon, he could point to no marks on his body.
An Illinois Appellate Court decision in Cannon's case on November 20, 1997, however, seemed to change the rules. Frank Ralph, the attorney representing Cannon, argued that though they might not meet all of the supreme court's requirements, other alleged victims should be allowed to testify in his client's case (three claimed to have been abused within 4, 5, and 23 days of Cannon's arrest). A three-judge panel headed by Justice Warren Wolfson agreed. "To say, as the State does, there is a qualitative distinction between shocking one suspect's genitals with a cattle prod and beating another with a flashlight, or inserting a shotgun in a suspect's mouth as opposed to a handgun, is to trivialize established principles for decent law enforcement....Minor differences in technique do not alter the nature of the torturer's work." Wolfson and his colleagues granted Cannon a new hearing on the admissibility of his alleged confession, and they indicated that at that hearing he should be able to present the testimony of a range of other alleged victims. This did not go down well with the Cook County state's attorney's office, which asked for leave to appeal, but the Illinois Supreme Court declined to examine Wolfson's decision.
(Another aspect of Cannon's case may have protected Wolfson's decision when he seemed to go out on that limb. The trial judge whose decision Wolfson overturned was Thomas Maloney, who had been convicted in 1993 of accepting bribes to fix murder cases both before and after Cannon appeared before him, and it may be that no one on the state supreme court wanted to stand up for a crooked judge. U.S. Appellate Court judge Ilana Rovner had set down the theory that Maloney ran his courtroom like a business, coming down hard on murder defendants who did not bribe him, both to keep his conviction rate up and to advertise the desirability of bribing him. Cannon's attorney Frank Ralph had argued before Wolfson that this particular case presented an unusually good opportunity for advertising because it turned almost entirely on the admissibility of the defendant's confession, a ruling that is made by the judge, not by a jury. And the next set of El Rukns who appeared before Maloney seemed to have gotten the message. In 1986 they paid $10,000 to have their double murder case fixed. Maloney, however, returned the bribe when he thought federal authorities were on to him, and convicted the pair.)
The hearing Wolfson ordered became vastly important, not just to Cannon, who was serving a sentence of natural life, but to other Area Two victims as well. Cannon's story would be bolstered by other accounts and then compared to the testimony of Dignan and Byrne. If the judge suppressed Cannon's confession because he believed it had been extracted by force, could other judges go on ignoring similar claims of torture? "Who will the judge believe?" was the question of the moment.
Alas, we will never know. The hearing, which started in September 1999, met sporadically into this year. Cannon had almost finished putting on his witnesses, and it was expected that the state would soon call Dignan and Byrne to the stand, when the two sides agreed to a plea bargain. On January 19, Cannon dropped his claim of torture and pled guilty to conspiracy to commit murder and armed violence. In exchange, the state dropped murder charges. Thus Cannon achieved the promise of freedom in about two and a half years, and the state kept Dignan and Byrne off the witness stand.
It's hard to say who got the better deal.
Cannon received one particularly lucky break during the course of the hearing when Judge John Morrissey recused himself from the case. In January 2000, it came to the attention of Cannon's lawyers that Morrissey had referred to them as "those idiots from the People's Law Office" in a hearing 18 months earlier. (The statement was made during a court-reported conversation between Morrissey and two state's attorneys about a defendant who had nothing to do with the PLO.) Cannon's legal team consisted of two lawyers from the People's Law Office (Flint Taylor and Tim Lohraff) and three from the Northwestern Legal Clinic (Tom Geraghty, Larry Marshall, and Cathryn Stewart). They came to court on January 21, 2000, with a motion asking for a new judge. Morrissey knew what was coming, as the PLO had raised the same issue in another case a week earlier, and he removed himself from the Cannon case before the motion was made.
That changed Cannon's prospects considerably. Morrissey has compiled a controversial record, particularly when dealing with cases involving allegations of brutality and torture. In 1994 he had refused to hear Cannon's torture allegations, saying he had had no need to do so because Judge John Mannion had considered that particular defense motion and rejected it. (Mannion happened to be a former policeman who had served at Area Two and who had testified as a character witness for Jon Burge at the Police Board hearings in the Wilson case.) In the case of Ronald Jones, who was sentenced to death on charges that he had killed a prostitute after having sex with her, Morrissey ridiculed defense lawyers when they asked for DNA testing. The attorneys were arguing that the testing would prove that Jones's confession, which he claimed had been beaten out of him by police at Area One, was false. In court, Morrissey told the lawyers that he had laughed when he read their request. Jones was subsequently freed after DNA testing, ordered by the Illinois Supreme Court, proved the semen collected as evidence was not his.
After Morrissey recused himself from Cannon's case, the defense attorneys appeared before Thomas Fitzgerald, the presiding judge of the circuit court's criminal division, to get assigned to a new courtroom. Ordinarily the case would be assigned randomly, but Taylor argued that the Cannon hearing should not be assigned to any judge who had previously served as a prosecutor. Taylor pointed out that some sitting judges had served in the state's attorney's office at the same time that the Area Two cases were being prosecuted, that some had taken the confessions of defendants, and that others had prosecuted them in court. Eliminating former state's attorneys from the pool of eligible judges would diminish it by more than 50 percent.
Judge Fitzgerald suggested putting the case on the docket of Lawrence Fox. Neither side objected to that. Fox, a former public defender, has a reputation as an independent thinker whose decisions are rarely reversed on appeal.
Fox disappointed the defense early. Taylor and his colleagues hoped Fox would allow them to introduce the Burge cases, especially Wilson's, even though Burge was not accused of participating in Cannon's torture. In Taylor's view, the behavior of the commanding officer of the violent crimes unit was relevant to Cannon's case. In Fox's view, however, it was not. He ruled that he would hear only testimony about the particular officers Cannon had accused. He also set a time limit on the accusations. Those who claimed to have been tortured by Dignan, Byrne, or Grunhard in the two years before and the two years after Cannon was arrested could be heard. Anyone tortured outside that window could not.
On the other hand, it was clear that the judge was not in the prosecution's pocket either. The state agreed to the admission of previous testimony from some of the alleged Area Two victims because they had been cross-examined when they gave it. But it objected when Cannon's attorneys moved to enter the complaint, set down by OPS, of Lee Holmes, who alleged that he had been suffocated with a plastic bag and beaten with a flashlight in the basement of Area Two headquarters. Holmes had never been cross-examined on the charges, and he never would be because he was murdered in 1994. Fox admitted Holmes's complaint.
At the hearing, Cannon's previous testimony about his treatment was entered into the record. Six other alleged torture victims were represented by testimony they had given at hearings on motions to suppress their confessions, Lee Holmes was represented by his OPS statement, and five men who claimed to have been physically abused took the stand. Four OPS investigators also testified: Michael Goldston explained how he had reached the conclusion that abuse was "systematic" at Area Two. Veronica Tillman told how her 1994 report had concluded that Cannon's account of being tortured was more credible than the stories told her by Dignan and Byrne. Leutie Lawrence explained how she had reached her conclusions in five cases in which Dignan, Byrne, or Grunhard played a role. Robert Cosey testified about why he had sustained charges against Dignan and Byrne in the case of Gregory Banks, who had been arrested four days before Darrell Cannon. Banks claimed that the same officers had put a gun in his mouth and threatened to blow his head off, had beaten him with a flashlight, kicked him about the ankle and stomach, and put a plastic bag over his head, suffocating him twice.
Cannon also presented two expert witnesses, forensic pathologist Robert Kirschner and psychologist Antonio Martinez. Kirschner is a veteran of dozens of human rights missions for Amnesty International, Physicians for Human Rights, and other groups. He is well-known to the state's attorney's office because he formerly served as deputy chief medical examiner of Cook County and as such often testified for the prosecution in criminal trials. In Fox's courtroom, Kirschner testified that Cannon's accusations and his physical reactions when he told his story were consistent with the dynamics of torture that he had observed elsewhere. Dr. Martinez, cofounder of the Marjorie Kovler Center for the Treatment of Survivors of Torture, testified that torture leaves behind certain psychological markers. Martinez said that when he tested Cannon, he saw those marks.
The state, however, was not without its own ammunition. Cannon had no physical evidence to back up his claim--no cattle prod, no corroborating eyewitnesses, no marks on his genitals. Nor was Cannon a paragon of citizenship. He had been convicted of murder in 1971, served 12 years, and had been back on the street for less than a year when Dignan, Byrne, and Grunhard arrested him for the murder of Derrin Ross. According to police documents, Ross had stolen narcotics and money from a drug dealer with ties to the El Rukns, and Cannon and another high-ranking gang member took Ross for a ride. Cannon admits he was driving, that his partner shot Ross in the head, and that they dumped the corpse in a lot behind the Altgeld Gardens housing project, on the far south side. Cannon contends he did not know Ross was to be shot until the shooting started. (The alleged shooter was arrested more than a year later, tried separately, and acquitted.)
Some of Cannon's witnesses were members of street gangs, some had been convicted of more than one felony, some were still in prison, some would seem to have the motivation to make up a story of abuse. But while Cannon and his witnesses might not play so well in front of a jury, they might be given credence by an open-minded judge. Writing in 1989 in the case of the aforementioned Gregory Banks, Illinois Appellate Court judge Dom Rizzi said, "Trial judges must bear in mind that while we no longer see cases involving the use of the rack and the thumbscrew to obtain confessions, we are seeing cases, like the present case, involving punching, kicking, and placing a plastic bag over a suspect's head to obtain confessions....Trial judges must be most circumspect when it appears that a right guaranteed to every citizen by our constitution may have been violated by police brutality or racial discrimination, for those affected are invariably the poorest, the weakest and the least educated, who are not sophisticated enough or do not have the resources to see and ensure that they are not denied the protections afforded by the rights and guarantees of our constitution."
There were other weaknesses in Cannon's case, however. Assistant state's attorney David Kelley, an effective cross-examiner, hacked away at the credibility of the OPS investigators. He argued that they presented not evidence, but opinion. OPS investigator Goldston's conclusion that abuse had been systematic was undermined by Kelley's questions about methodology. Goldston had drawn his conclusion not after exhaustive interviews with policemen and their accusers, not after gathering new evidence, not after comparing the number of torture complaints at Area Two with the number that turned up in other areas, but after charting the patterns in 50 complaints. Some of those 50 had been investigated by OPS before Goldston looked at them, and Kelley pointed out that in the vast majority of those cases, OPS investigators had not sustained charges.
Nor were Cannon's expert witnesses unassailable. Judge Fox had agreed to hear their testimony, but he had not agreed that it was admissible evidence. Although both Martinez and Kirschner were eminently knowledgeable about torture, no state or federal court has recognized the field of torture as an area of expertise. By admitting their testimony, Judge Fox would be setting legal precedent for the nation, something Cook County Circuit Court judges are rarely called upon to do.
The state's case, however, was beset by very serious problems. In rebutting Cannon's charges, prosecutors Kelley and David Stoioff had to depend largely upon the testimony of Lieutenant Dignan and former sergeant Byrne.
Byrne had attended law school while still on the police force, and in June 1993, the former seminarian and former marine became a former policeman, going into private law practice. His legal career was brief. In 1996 the Attorney Registration and Disciplinary Commission filed an 11-count complaint against him, accusing him of lying to a circuit court judge, submitting the forged signature of another attorney on a federal court document, and taking retainers from clients and then doing little or no work for the money. Those who suffered as a result included Chicago Fire Department lieutenant John Pentek, driven close to bankruptcy by Byrne's duplicitous behavior; retired policeman James D'Agostino, who ultimately resolved his legal problem by doing the work himself; and Chicago policeman Wayne Campbell, Byrne's partner back in the 1970s, who lost an opportunity to recover damages for serious injuries he had suffered in a traffic accident because he retained Byrne to work on the case. In checking on the status of his claim, Officer Campbell had left Byrne more than 70 phone messages without getting a return call. "We were friends," a baffled Campbell told the ARDC. "We were partners."
In a 1996 hearing, ARDC attorney Jason Rose argued that Byrne had lied to clients, attorneys, and judges, that "his conduct represents a black eye on the legal profession and is deserving of the most severe of sanctions." The ARDC hearing board noted Byrne's "continuing insolence and disrespect for the disciplinary rules and unwillingness to abide by them." The board members said that Byrne's conduct had "defeated the administration of justice" and recommended he be disbarred. The Illinois Supreme Court, the final arbiter in disbarment cases, agreed, and Byrne's law license was revoked in November 1996.
Byrne's sordid record promised to be fertile ground for Cannon's attorneys. And Dignan might not fare better. In a 1996 deposition given in Wiggins v. Burge, et al, Dignan admitted that he used the word "nigger" in telling jokes and in talking to African-Americans he was trying to arrest, adding credence to Cannon's story of how he'd been addressed. And as the Reader reported in 1998, although Dignan was hailed by the National Association of Police Organizations as one of the nation's "Top Cops" for his role in a narcotics raid conducted in 1994, his account of what happened during that raid has changed several times and is contradicted by other officers who were with him. In the immediate aftermath of the incident, Dignan claimed that he had taken a wounded officer to safety, but that officer survived and later went on record saying that Dignan's tale of rescue was not true. Dignan also claimed to have shot the drug dealer as he approached another officer, gun in hand, but that policeman's statement would seem to indicate that Dignan fired his gun after the dealer had been shot through the heart and disarmed.
Putting Dignan and Byrne on the stand could be dangerous for other reasons as well. They might, for example, tell two different stories about the same incident, as they had, years ago, in the case of Area Two victim Gregory Banks. As the Reader reported in 1996, Dignan and Byrne had explained Banks's injuries by claiming he had rolled down some stairs during an escape attempt, but Dignan said the incident occurred on the second floor while Byrne said it happened at ground level. When questioned by prosecutors at Banks's trial, Dignan said he had never struck the defendant. When questioned by the defense, Dignan recalled that he had had a fistfight with Banks in an attempt to subdue him. The only medical testimony at the trial was from the doctor who treated Banks after his arrival at Cook County Jail, and that doctor said the injuries he saw were not consistent with a fall down a flight of stairs.
Banks was convicted, and his attorneys appealed, making note of what they called Dignan's "propensity to fabricate." Six years after the arrest, Illinois Appellate Court judge Dom Rizzi filed his historic opinion overturning the conviction. Banks was released after having served seven years in jail. The state's attorney's office declined to prosecute him a second time, and in August 1993 the city settled his civil suit against Dignan and his comrades for $92,000.
Dignan and Byrne's testimony in Judge Fox's courtroom could very well come back to haunt the state's attorney's office if and when other Area Two cases came back from higher courts. And last summer, after Fox had been handling the case for nearly eight months, it became clear that this was not to be the last opportunity for a significant hearing on what had happened at Area Two. It seemed as if the appellate court decision that had granted Cannon another chance might have provoked some second thoughts on the state supreme court bench.
On August 10, 2000, with Cannon's hearing well under way, the supreme court ruled in People v. Patterson. Aaron Patterson, the son of a high-ranking Chicago policeman (now retired), claimed to have been suffocated at Area Two in 1986 after his arrest for the murder of a fence and his wife. He came to trial before Judge Morrissey, and though no physical evidence placed him at the scene of the crime and his alleged confession was neither signed nor written in his own hand, he was convicted and sentenced to death. But in its ruling last August, the supreme court seemed willing to soften the "reasonable and prudent torturer rule."
In its brief, the state had argued with considerable confidence. "This court has consistently required a showing of physical injury in order to admit evidence of other allegations of police brutality." The state cited eight cases in support, six of them from Area Two. But it seemed that the judges had finally woken up and realized that a prudent torturer tries not to leave marks, and they declared that although a lack of demonstrable physical injury is relevant, it does not preclude the admission of prior acts of brutality. The judges went on to explain that they stood by their earlier ruling--that the time gap between similar incidents must be relatively short. They said that the four years that separated the torture of Andrew Wilson from the alleged torture of Aaron Patterson was too long, even though Commander Burge was involved in both cases and both defendants said they had been punched, kicked, and smothered with a plastic bag. The judges went on to say, however, that an incident seemingly remote from one at hand can become relevant if similar incidents occurred in between. "Thus, a single incident years removed has little relevance. However, a series of incidents spanning several years can be relevant to establishing a claim of a pattern and practice of torture." The judges said that they believed that the evidence of torture that had arisen since Patterson's 1989 conviction would, if true, "likely change the result upon retrial." As a result, Patterson's case was returned to 26th and California for a hearing to consider the evidence of allegations of torture at Area Two. That hearing will begin later this year in the courtroom of Judge Michael Toomin.
On the same day that the court granted Patterson an evidentiary hearing, they did the same for Derrick King, who had been convicted of the 1979 armed robbery and murder of a cashier in a small store. King claimed that he had been beaten with a baseball bat and a telephone book at Area Two. According to the brief filed by King's attorney, Jon Burge, then a sergeant, had admitted to being present for all of the questioning.
In the wake of those two decisions, Cannon's lawyers appeared before Judge Fox and argued that the four-year time span he had imposed in defining which claims were admissible was now clearly too restrictive, given the language in the Patterson ruling. Fox decided he would accept the claims of two victims he had previously dismissed as too remote--Patterson, arrested August 30, 1986, and Michael Tillman, arrested July 21, 1986. Fox interpreted the Patterson decision as mandating that he also consider all of the corroborative evidence to the torture cases, and for that reason, he admitted 14 statements taken by OPS investigators, some from men claiming they had been tortured, some from people who seemed to back up some aspect of those claims--they had seen a victim bruised, swollen, and in one case, unable to stand up, or they had heard the victim make some immediate comment that indicated he had been thoroughly abused. The state objected, as the statements had not been given under oath and prosecutors had had no opportunity to cross-examine each witness. Fox overruled.
Prosecutors Kelley and Stoioff, looking at what lay ahead, could not have been sanguine about their prospects, and indeed they had the potential to lose far more than the case at hand. The first thing Judge Fox was expected to do once the defense finished was to hand down his decision on Kirschner and Martinez. If he decided to admit the testimony of one or both as an expert on torture, then the state's attorney could expect that the likes of Kirschner and Martinez would appear in other Area Two cases, adding a professional and scientific endorsement to the claims of electric shock, suffocation, beatings, and mock execution.
Furthermore, a victory could only by Pyrrhic. It would not go unnoticed that the state's case rested on Dignan and Byrne. In the last two years, the Area Two cases have begun to receive some attention from the national media, and the Tribune has also kept a close watch. The press coverage that might result from the appearance of Lieutenant Dignan, who has admitted telling "nigger" jokes, and former sergeant Byrne, now branded "a black eye on the legal profession," could significantly erode support for both the police and the state's attorney. And if the prosecution lost because Judge Fox did not believe Dignan or Byrne, it would be difficult for other judges at 26th Street to consider them credible.
The rationale that the prosecution offered for agreeing to the plea bargain made no mention of having to put Dignan and Byrne on the stand. Press spokesman for the state's attorney John Gorman said the office had agreed to the reduction in sentence because Judge Fox's rulings in the wake of the Patterson decision had put the state at an unfair disadvantage and because "it did not appear the judge would rule in the state's favor."
Gorman also justified the plea bargain on the grounds that the case was now so old that witnesses might not be available should a new trial be ordered. The plea, Gorman said, seemed a good way to "find justice for the victim's family."
Yet if the victim's family, whom the state's attorney's office said it could not find, would have wanted to keep Cannon in jail, then Kelley might have done as well by putting on his case. If Fox had ruled in the state's favor, Cannon might well have remained in jail for the rest of his life. If the judge ruled against the state, prosecutors could appeal, and even if they lost all the way to the supreme court, Cannon would have remained in prison for at least two and a half years--about the same amount of time he'll serve under the plea agreement. Devine's office admits this is true, but says that if the state lost that roll of the dice, Cannon would emerge without a conviction for the crime. "We felt he was guilty," said Gorman, "and it was important that he should be convicted."
Attempts to reach Byrne were unsuccessful, and Dignan declined to comment for this story, saying that I had done "a hatchet job" two years ago after I interviewed him for a story on the drug raid for which he'd been decorated. He said he would talk to an impartial reporter but not to me. In the wake of the settlement, Dignan did speak to Sun-Times reporter Frank Main. He forthrightly denied Cannon's charges, denounced the plea agreement, and said he would have preferred to testify.
After the plea agreement, Flint Taylor called the state's offer an admission of "fear of the power of the evidence in front of a judge they can't control. Fox is a wild card to them, they couldn't predict what he would do." Up to now, Taylor said, Devine had fought every Area Two case and had never admitted that torture occurred. Suddenly, faced with the first case that would get anything resembling a full judicial hearing, the state was willing to chop 30 to 40 years off the sentence of an El Rukn general convicted of two murders. "You don't do that," Taylor said, "unless you are looking down the barrel of a gun."
All of Cannon's attorneys urged him to take the deal. While it might have served the other Area Two defendants better to have the police testify, Cannon's interest was best served in agreeing to the plea bargain. By dropping his torture claim, Cannon was guaranteed to be out on about the same date that he would have been released if he won, and if he'd lost, he'd die in prison. Furthermore, he was no longer carrying the ball for the rest of the alleged victims. Since Cannon was granted his hearing in 1997, three other men who claim to have been tortured at Area Two (Patterson, King, and Ronald Kitchen) have been granted hearings at which, conceivably, Area Two personnel will testify.
Nonetheless, Cannon did not jump at the offer, and after accepting it he felt defeated, not victorious. Two days before the agreement was made final Cannon wrote me that he was confident that he would win in court but he believed that with that victory would come a series of appeals by the state, and with his 84-year-old mother in ill health he feared he would not see her alive again. His father and grandmother had died while he was in prison and he had not been allowed to attend their funerals, and he hoped his mother would die at peace, seeing her son a free man. While he had nothing but praise for his lawyers, he feared the deal would result in Dignan and Byrne never being exposed, and he said he had told his champions he thought an old paradox applied: "You can't get there from here if you go halfway each time."
And Cannon may be right. It's true that his case has been pivotal in the history of torture at Area Two. It has had beneficial effects for the other appellants, and it may yet have more. The other judges at 26th Street handling Area Two cases cannot help but note that the state ran scared in Cannon's case. They know that the state doesn't make deals like that unless it doesn't trust its witnesses and evidence. But there seems little to stop Devine's office from plea-bargaining its way through the Area Two cases one by one. Eleven men on death row allege that they were tortured at Area Two. Innocent though some of them may be, what sort of deal might they be willing to make in exchange for their lives?
The more headstrong might be tempted to take their chances of prevailing at 26th Street, at the appellate level, and then again in the supreme court. But that high court is a hard lot. Witness their decision in People v. Mahaffey, handed down last year on October 13, just two months after the judges, in ordering hearings for Patterson and King, seemed to soften just a bit. Reginald Mahaffey, convicted with his brother Jerry of the brutal murders of a husband and wife and the attempted murder of their 11-year-old son, was arrested on September 2, 1983, two months before Cannon was taken into custody. The three Area Two officers who carried out the arrest were Grunhard, Byrne, and John Yucaitis. (Yucaitis had taken part in Andrew Wilson's arrest. In 1993 he was suspended by the Police Board for 15 months in the same decision that resulted in the firing of Commander Burge.) Mahaffey contended that at Area Two a detective beat him with a flashlight, smothered him with a plastic bag, and banged his head against a concrete wall. Mahaffey said he confessed because he feared for his safety.
Jewelry, a gun, and a shotgun taken from the victims were found in Mahaffey's apartment. At the police station, Mahaffey took off a ring and pulled a watch from his back pocket, saying they belonged with the items seized from his apartment, and both were identified as belonging to his victims. The evidence against Mahaffey, the supreme court said, was overwhelming. It said he would have been convicted even if his confession had been suppressed, and for that reason the claim of torture could be ignored. "We conclude," the judges wrote, "that defendant suffered no prejudice as a result of the claimed error."
Thus the reasonable and prudent torturer, probably confused by the unfriendly rulings in Patterson and King, can find some clarity in Mahaffey. If the evidence is overwhelming, why not the rack?
John Conroy can be reached by E-mail at JConroy329@aol.com.
Art accompanying story in printed newspaper (not available in this archive): illustration/Ken Wilson/photo/Lloyd DeGrane.