*Her name has been changed
Walking between two male friends in the early morning hours of April 29, 1997, Shavonne Simpson* might not have seemed like an easy target. But along came a man with the power and authority to stop her, to order her friends to move on, and to trap her in the backseat of a car with doors that opened only from the outside. Later that day, at Trinity Hospital, the 19-year-old Olive-Harvey student told Chicago police detectives that she'd been picked off the street and raped by one of their own.
If the city's attorneys had their way you wouldn't be reading this article. They routinely ask that documents pertaining to sensitive police matters be placed under protective order, and their adversaries in court usually agree in order to move their cases along. When Simpson brought a lawsuit against the officer and the city in civil court, the files involved were sealed. Now, after a battle in federal court, the Reader has obtained those documents, and what they reveal goes far beyond the simple facts of a rape case to a disturbing lack of supervision, even negligence, on the part of the police department.
Shavonne Simpson shouldn't have run into Officer Earnest Marsalis that night. He shouldn't have been on the force. At every stage of his career, the warning signs were there, bright and flashing, and the police department looked the other way.
The Chicago Police Department rejected Earnest Marsalis's application three times--first in 1985, after a drug screening detected morphine in his urine; then in 1987, after he failed to show up for the drug test. Though he was rejected again a few years later, in 1994 he got past the preliminary hurdles and his application moved forward.
Investigator Kathy Kiss of the department's personnel division conducted the background check on Marsalis and reported her findings to her commanding officer. Marsalis was born August 24, 1960, at Lewis Memorial Maternity Hospital on the south side of Chicago. He graduated from Chicago Vocational High School in 1978 and obtained a bachelor's degree from Chicago State University in 1984, majoring in psychology. He briefly taught GED classes at Truman College and worked as a substitute teacher for the Chicago Public Schools. He'd been driving a bus for the CTA since 1986.
Contact with his past and current employers yielded scant information. His supervisor at Truman College did not remember him. The Chicago Board of Education only confirmed the dates of his employment and that his teaching permit had expired. Marsalis's supervisor at the CTA was absent the day Kiss showed up to question him, but instead of returning another day she talked to a different supervisor. That supervisor said he did not know Marsalis personally, but he scratched up some information from Marsalis's personnel file, telling Kiss that he hadn't been in any traffic accidents in three years, which was "regarded as good," and that he'd had a few minor violations on his route and one unexcused absence.
Kiss learned that Marsalis had no criminal record but that he owed the city $4,000 in parking ticket fines. He promised to pay them all in six months.
When she visited the candidate at home, she found his studio apartment "clean, neat and modestly furnished." Kiss talked to a clerk in the building's office, who was also a resident, but she said she did not know Marsalis "on a personal level" and was therefore reluctant to comment on his character. The building engineer told Kiss that Marsalis's CTA uniform was always "neat and pressed."
The department also obtained written character references. A retired cop who'd known Marsalis for eight years gave a one-sentence recommendation, saying, "He is hard working, enthusiastic and has a high integrity."
The other personal reference couldn't have been worse. A lawyer for the U.S. attorney's office who lived in Marsalis's apartment building, all but begged the department not to hire Marsalis. He wrote on a police form that Marsalis had once asked him to write him a recommendation for law school and to include the "fraudulent information" that Marsalis had clerked for him. He said Marsalis was "lacking in the prerequisites of character and integrity" that were "incumbent" in a police officer. "Prudent consciousness," he wrote, "vehemently prevents me from extending a recommendation of this individual no matter how pauperized."
Bad references don't immediately rule out candidates, according to police department spokesperson Pat Camden. Instead, the department makes an effort to determine whether the reference has an "ax to grind."
Kiss made a follow-up call to the lawyer. Again he urged the department to reject Marsalis. He said that after he refused to give Marsalis a recommendation for law school, someone slashed his tires. In a memo to the commanding officer of the personnel investigations section, Kiss wrote that he "cannot prove the candidate is responsible for this act, but stated he has lived [in the same building] for many years without any problem until, coincidentally, he denied the candidate's request." The lawyer, it turned out, had no kind words for the candidate at all. Marsalis, he warned, was "a head case."
On January 3, 1995, the police department hired him anyway.
Marsalis spent five months at the police academy, studying the rules and regulations of the department, undergoing physical and firearms training, and taking courses in law, human behavior, and patrol operations.
He was not an impressive recruit. His test scores were below average, and not long after he started at the academy, the mother of his one-year-old son filed a complaint against him for pushing her and threatening to kill her.
The police department has two offices that conduct internal investigations. The Office of Professional Standards handles brutality complaints; the Internal Affairs Division looks into other areas of misconduct.
OPS determined that the complaint (CR) registered against Marsalis could not be sustained. A few months later, Marsalis returned his son from a visit a day late, violating a court order, and the child's mother filed another complaint with the department. The Internal Affairs Division sustained her charges, and Marsalis received a one-day suspension.
Upon graduation from the police academy, recruits remain on probationary duty until a year from their hire date, partnered--at least for part of that time--with a field training officer, who helps them apply the lessons of the academy to street duty.
Marsalis graduated in June with the second lowest grade in his class and, after receiving his star and shield, was assigned to the midnight shift at the 21st District, on the south side. Harrison Speakes, Marsalis's first field training officer, remembers being impressed by Marsalis's six-foot-four, 240- pound frame but by little else.
In a deposition Speakes would later give, he said that Marsalis didn't accept instruction well, and even occasionally attempted to instruct him. According to Speakes, Marsalis wasn't a "team player." Speakes described Marsalis as "arrogant." The recruit flaunted his college degree and made it well-known that he would be applying to law school: "He told me he wasn't going to be like me. He was going to rise to great heights."
Speakes said Marsalis flirted with women and handed out his phone number while he was on duty, that he had a horrible reputation among his fellow officers, and that he was "always rubbing somebody the wrong way." According to Speakes's deposition, the other officers considered Marsalis "just horrible," a "nightmare," "just unbearable," "disgusting," and "crazy." After five weeks with Marsalis, Speakes--halfway through his assignment--approached his watch commander and, for the first time in 13 years as a field training officer, asked to be relieved of his duties. Marsalis was transferred to another FTO.
In August 1995, according to a police Internal Affairs report, FBI agents approached the police department with information that the 34-year-old Marsalis might have had sex with a minor and been involved in a drug deal. A 15-year-old girl had reported that on July 15 she was walking west on 63rd Street near Michigan Avenue when Marsalis pulled up in a gray Cadillac and started talking to her. She said he mentioned that he was a police officer, that he'd taken out his wallet and flashed some bills, and that he said he needed someone to share his money with. She claimed that when she told Marsalis her age, he grinned. A short while later, the girl reported, she accompanied him to his apartment. She said he showed her a large sealed brown envelope, about two inches thick, asked if she wanted to make a few hundred dollars, and then drove her to Chinatown, where she exchanged envelopes outside a two-flat with a middle-aged Asian man. The girl said the envelope she received contained a large amount of money and that Marsalis reached inside and pulled out a hundred-dollar bill. He handed it to her, she said, along with bus fare, and then sent her on her way. She said she next encountered Marsalis 12 days later, when he picked her up at her foster home, took her back to his apartment, and had sex with her. The girl told the FBI she'd also had sex with Marsalis on at least one other occasion and that she'd become upset with him and contacted the bureau because he wasn't giving her the rest of the money he'd promised her.
On August 24, three FBI special agents met to discuss the matter with an assistant U.S. attorney and representatives from the police department's Internal Affairs Division and the state's attorney's office. The parties agreed that the FBI would handle the investigation regarding the suspected drug delivery and that the IAD and state's attorney's office would follow up on the statutory rape allegation.
When questioned about the complaint, Marsalis told IAD investigators that he'd never even met the girl. After she wound up in an out-of-state psychiatric hospital, the state's attorney's office deemed the case impossible to pursue and closed its file. The FBI had no further contact with the police department about the suspected drug delivery, and the IAD did not sustain the girl's allegation.
Despite the fact that the girl knew Marsalis's address, accurately described the layout of his apartment, and knew other specific details about him, including the color and make of his car, that he used to be a CTA driver, and that he had a one-year-old son, the police department undertook no further efforts to determine whether Marsalis had given a false statement to the IAD investigator when he said he had never met the girl. False reporting could have been grounds to fire Marsalis. A probationary officer, he wasn't yet covered by the Fraternal Order of Police contract, and the department wouldn't have been required to make a case for his firing before the Police Board, a civilian committee of mayoral appointees.
For the time being, Marsalis was off the hook. But it wasn't long before he was the subject of another internal investigation.
When Marsalis was still a probationary officer, he was accused of making calls to a 900-number dating service while on duty. According to police documents, the calls were made in November 1995 from the police room at the Board of Elections' voting equipment warehouse. In a handwritten statement to his district commander, Marsalis denied making them and suggested they were made by "employees, dockworkers, foremen and delivery men." But the investigator found that the phone had been under his "direct and immediate control," and if any others who weren't employed by the Chicago Board of Elections had been in the police room using it, Marsalis was "in violation of written instruction in that he did not require them to sign the register book." The investigator recommended a three-day suspension. (Almost three years later Marsalis admitted in a deposition to making the calls.)
A short while later, Sergeant Cora Sue Roberts began supervising Marsalis at the 21st District. At first they were on good terms, according to a deposition Roberts later gave. He talked to her about his plans to attend law school and confided in her about a dispute he was involved in for custody of his son. But Roberts soon started getting the impression that he thought she could "backdoor" him into law school, since she had a law degree, and she soon tired of his derogatory remarks about his son's mother. "We kind of fell out because I wasn't going to help with law school and I wasn't going to help him with his custody battle and I wasn't being very sympathetic," Roberts said.
Having a conversation with Marsalis, according to Roberts's attorney, was like listening to a "one note melody" or a "monologue." It seemed that nothing she said to him ever registered. "You try and counsel him or you try and suggest that maybe there's another side to the world that he needs to consider." But, she said, "You could have the very same conversation with him the next night. I mean, there was no introspection here that I could see. There was very little reality contact."
Roberts also suspected that Marsalis lied to her from time to time. "I would ask him...why did you do thus and such, and...he would give me some explanation that was either completely outlandish or an obvious lie. When I would try to confront him with it, another lie would follow that." Roberts heard from other officers that Marsalis was a problem for them too. He would hang out the window of his squad car and ogle passersby. "Nobody wanted to work with him," Roberts testified. Officers "would come up to me and say, 'Sarge, you've got to do something for me, get me away from this guy.'"
When the Park District requested an officer's presence at one of its field houses, "It solved our problem. We assigned Marsalis over there. He's by himself, wasn't expected to do much except be there. He could talk to all of the women he wanted to there. He wouldn't bother anybody."
On one of the first few days he was assigned to Kennicott Park, at 4434 S. Lake Park, Roberts swung by the field house to make visual contact with him, as she was required to do with her charges twice per shift. She said she discovered that he was AWOL and tried to contact him by radio for at least 15 minutes, but he didn't respond.
When he finally returned, he suggested that his radio had malfunctioned. She said she ordered him to hand it over and saw that it was working properly. According to her deposition, she wrote up a Summary Punishment Action Report (SPAR)--an alternative to a CR that's used for less serious transgressions. She accused him of being off his post, not answering his radio, and lying to her. She recommended a two-day suspension but never learned what, if anything, came of it.
From June 1995 to April 1997, Marsalis went through 23 different female partners--almost all quickly sought transfers, according to court documents. During this time, Marsalis received six honorable mentions, all accumulated in his probationary period while working with experienced partners. He also received the SPAR and eight citizen complaints. One woman claimed that after responding to her call he'd refused to write up a domestic battery report for her. Another, a nurse, reported that she'd been speeding, with her flashers on, in response to an urgent call about a patient. She said that Marsalis pulled her over and, unsympathetic to the medical emergency at hand, detained her for 45 minutes, acting in a rude and unprofessional manner. According to an internal police memo, the nurse suggested that Marsalis be "psychologically evaluated."
Despite the difficulty he'd had with his partners, the number and nature of complaints against him, and the fact that all but one of the civilian complaints had come from women, the department never officially identified Marsalis as a problem officer or as an officer who might have problems relating to women. He received no extra supervision or monitoring and was not placed in either of the two programs available for officers with performance problems. As a result, he was working alone in his squad car, armed with a gun and full police powers, when he crossed paths with Shavonne Simpson and her friends.
On the night of Monday, April 28, 1997, Simpson went to a movie at the Burnham Plaza theater with her friend John McGhee. Afterward, they stopped at White Castle for something to eat and then headed over to 79th and Drexel, where, earlier in the day, Simpson had parked her car. The car had been making a loud ticking noise and wasn't properly accelerating. She'd recently bought it from her friend Tony, a mechanic, and he had agreed to take a look at it. Tony sometimes hung out at the 913 Lounge, near 79th and Drexel. McGhee went inside the bar to look for him, and exited with a friend named Corey Gilmore. The three then began walking to McGhee's car, with Simpson in the middle.
All of them would later report that they were heading south on Drexel sometime just before 2 AM when a police officer pulled up and called them over to his squad car. The officer, Earnest Marsalis, ordered the men to take their hands out of their pockets and then, Simpson later reported, "He asked them which one of them was I with. They said neither one, that they were just my friends. Then he told them to walk on."
With McGhee and Gilmore still in earshot, Marsalis asked Simpson her age and for identification. Simpson said that when she told Marsalis she didn't have ID on her, he ordered her to get into his car. She assumed he thought she was underage and therefore violating curfew, which was 10:30 for those under 17.
McGhee and Gilmore walked to McGhee's car and waited inside for Simpson to join them. "We thought he was just going to run her name," Gilmore later told police.
According to Simpson, Marsalis said he was going to drive her home. She had been stopped for violating curfew once before, and the officer had driven her home that time too, so none of this seemed out of the ordinary.
Simpson said that Marsalis then drove to 81st and Cottage Grove, parked, and filled out paperwork while asking her questions about herself, which she answered dutifully. She told him she wanted to be a lawyer and mentioned that she was having engine trouble. At one point, according to the account Simpson gave to police, "he asked me where I lived and he asked me did I want to be his lady. I told him no, that he was too old for me. He started telling me how much money he makes and showing me check stubs and asking me why do I want to be with a gangbanger on the street and that he's practicing law." She said Marsalis then informed her that his shift would end in ten minutes and that he would take her home in his personal vehicle.
At the police station at 85th and Green, Simpson reported, Marsalis put her in his Cadillac, said he'd be right back, and then disappeared into the station. When he returned, they stopped for gas and then headed north on the Dan Ryan Expressway. When Simpson asked why he was heading in the wrong direction, "he said that he had to get something real quick and that it wouldn't take long."
She later told the city attorney who took her deposition that she'd found the diversion more annoying than alarming. "I was just thinking like how can he take care of his own responsibilities before taking me home. So I didn't think anything bad though, no."
According to Simpson, Marsalis then drove to his apartment and told her to come inside with him because the neighborhood was dangerous and it wouldn't be wise to wait in the car. Inside his apartment, she says, he told her about his family, showed her a law book, and said he could help her with her career ambitions.
"Did you ever say, Why aren't we going?" the city's attorney, Sharon Baldwin, asked Simpson.
A: Yes. I told him I was ready to go home, and he said he was about to take me.
Q: And then what happened?
A: He talked about stuff about his son and his ex-girlfriend, how good he used to treat her, stuff like that....He asked me have I thought about being his lady, and I told him no. And he said I was not cooperating with him.
Q: Okay, and what did you say?
A: I didn't say anything.
Q: And what happened then?
A: And that's when he told me to take off my clothes, and I told him no, and then that's when I saw the gun. And...he repeated himself, Take off your clothes, and then I started to do what he said.
Q: Where was the gun?
A: In his hand.
Q: Where did he get it from?
A: I don't know.
Q: Did he point the gun at you?
A: No, he didn't.
Q: What did he do with the gun?
A: He just had it in his hand like he was just letting me know he had it.
Simpson said that after she removed her pants and underwear, Marsalis ordered her to get onto his bed. "He reached over my head and got a condom, put it on and told me, 'Don't scream, don't holler,'" she told police. "That's when he performed sexual intercourse."
When she got to this point in her deposition, Baldwin asked, "Did you ask him why he was doing this?"
Simpson responded, "I just laid there and cried."
Simpson said then Marsalis fell asleep. At some point she spotted his wallet on a shelf and stole a credit card and his police ID, thinking she could use them as evidence of the crime. "Then I saw him move," she told police, "so I just pretended that I had gotten up to go to the bathroom. I put the police ID card and the credit card in my socks up under my foot."
When she came out of the bathroom, Marsalis was on the phone. She said he told her that he had to take his mother to work, and that a surveillance camera would be watching her every move. "He said that if I left he would get me," Simpson told police. With Marsalis gone, "I called my best friend and I told her that I had been raped."
Simpson said she then fled the building and asked a cabdriver to take her as far as she could get on seven dollars. The driver let her out near 63rd and King Drive and then she waved down a squad car and concocted a story about her purse being snatched. She said she asked the police officers--a man and a woman--for a ride back to 79th and Drexel, and then got into her ailing car and drove herself home.
Simpson's best friend and roommate confirmed that Simpson had called her that morning, sometime between 6:50 and 7:30 AM, saying she'd been raped. The friend told an IAD investigator that when Simpson got home, "I followed her upstairs to her room and I asked her what happened. She said that she was going to tell me after she took a shower. I asked her was she sure that she wanted to take a shower and then she told me that nothing was going to happen to him because he was a policeman and he used a condom."
Later that morning, Simpson sat in her car with her boyfriend and told him what had happened. Insisting that she report the crime, he stopped an officer driving by and turned over Marsalis's credit card and police ID. A female police officer came to escort Simpson to Trinity Hospital, where an examination showed no evidence of sexual activity.
Marsalis was brought into Area One headquarters for questioning. After consulting with Fraternal Order of Police attorneys, he exercised his Fifth Amendment right to remain silent.
Within days of the incident, Simpson met with Mariel Nanasi, an attorney who had once represented one of Simpson's family members. Nanasi found her story credible.
"She was visibly shaken," Nanasi recalls, "and she was sincere, and she had some classic postrape ways of conducting herself, like that she went home and took a hot shower for a long time. I knew she wanted to cleanse herself of the dirty feeling she felt. I thought that that was classic."
Also, says Nanasi, "she remembered details and was consistent in telling them over and over." They were the kind of details that were linked to the "sensory part of the experience," like that Marsalis had stirred in bed as she was going through his wallet and that she'd tucked the ID and credit card into her sock, under the sole of her foot, in case he searched her. "When you lie, you want to jump over those kind of details," Nanasi says, "because you don't know what they are and you're making them up."
Nanasi enlisted the help of attorneys Jan Susler, Erica Thompson, and Flint Taylor, of the People's Law Office, which her husband, Jeffrey Haas, had helped found in 1969. The PLO had long been fighting police brutality in Chicago and was responsible for filing the lawsuits that exposed police torture of criminal suspects at Area Two under Commander Jon Burge.
The city decided early on not to provide legal representation for Marsalis. According to the law department's Jennifer Hoyle, whatever happened between Marsalis and Simpson happened "outside the scope of his employment." Marsalis hired a private attorney, Kenneth N. Flaxman, who usually sits on the other side of police misconduct cases.
On May 23 the state's attorney's office notified the police department that it would not pursue criminal charges against Marsalis for rape. According to spokesperson Patti Simone, there simply "was not enough evidence to go forward to meet the burden of proof."
Simpson's attorneys were hardly surprised. "My hit on it is that they require a higher standard to prosecute a police officer than they would for a normal civilian," says the PLO's Erica Thompson. "Part of it is because prosecutors work hand in hand with the police all the time. They depend on police to make their cases--I mean, it's a brotherhood in a sense, and so if they're going to go after a cop, they're not just going to want the standard to file an indictment and to get criminal charges, they're going to want more than that. Plus that, you have the difficulty and the lower prosecution rate for sexual assault cases in general. They want more on those kinds of cases than they want on any other kind of case, so in this situation it was sort of a double whammy. You know, we've got a cop and it's a rape case and that's a really, really, really difficult one. And I think there's also a certain resistance to prosecuting cops particularly for something like this, because I think that the state's attorney's office is very cognizant of the fact that a criminal prosecution which results in a conviction is a slam-dunk automatic win for a civil rights case. If you prove that somebody's guilty beyond a reasonable doubt, you can pretty much walk into federal court on a civil rights case and move for what they call summary judgment and say, 'We win, because we have a lesser standard here, the findings have been made.' It's really just a matter of assessing how much this is worth and making sure the city pays it on behalf of this police officer."
The state's attorney's office denies that it uses a tougher standard when deciding whether to prosecute police officers. "Where there is evidence that crimes have been committed," says Simone, "we prosecute to the fullest extent of the law, despite one's vocation."
Flaxman agrees. He says he's known the state's attorney's office to vigorously prosecute cops. He says his client didn't get a pass because he was a police officer. "They didn't prosecute him because there wasn't a case."
Nanasi filed a lawsuit in federal court on May 29, 1997, claiming that Marsalis had violated Simpson's civil rights. Nanasi also listed the city as a defendant, claiming that the Chicago Police Department's policies and practices failed to properly hire, train, supervise, monitor, discipline, and control its officers. On any police force, Nanasi says, "There's always some kind of misconduct, because human behavior is involved. But if there's not sufficient oversight, one person's errant behavior becomes a system-wide failure to prevent violence against the citizenry."
In cases concerning police misconduct, the city routinely refuses to turn over personnel, disciplinary, investigatory, psychological, and other records it considers highly sensitive unless the plaintiffs' attorneys agree to a protective order that designates them as off-limits to the public.
Confidentiality is necessary in part, according to Jennifer Hoyle, to ensure that if the case goes to trial, information that might not be admissible in court doesn't bias the jury pool. But Nanasi and her colleagues believe the city casts too wide a net over the materials it deems confidential, and they see the city's insistence on placing documents under seal as an attempt to shield the police department from public scrutiny and embarrassment. Nevertheless, Nanasi and the PLO attorneys agree to the protective orders to save time. Otherwise they'd have to litigate for access to the documents they need, and, Nanasi says, most judges would ultimately impose some form of protective order anyway.
On March 28, 1998, Simpson's attorneys agreed to a protective order sealing the police department's files on Marsalis. It was the least restrictive of the protective orders in use at the time, she says. It contained a couple of paragraphs that would enable the judge to lift the seal at a later date if there were "good cause."
Even with the protective order in place, Nanasi says, the city attorneys stalled in producing the requested documents, defying court order after court order to turn them over. Jennifer Hoyle says Simpson's attorneys asked for "tens of thousands" of documents and it was impossible to produce them "on the schedule that had been set."
Only after U.S. District Court judge Ruben Castillo held the city's attorneys in contempt of court, ordered them to pay thousands of dollars in sanctions, and threatened to make a default judgment against them in the case did they produce all of the documents Simpson's attorneys had requested. Nanasi says that when she and her colleagues finally got their hands on the Marsalis files, they were appalled--but not surprised--by "how many different stages the police department chose to ignore his behavior." They believed their client had been raped, and they believed the city was complicit.
Depositions given by two of Marsalis's immediate supervisors provide insight into how an officer could be allowed to remain on the force after demonstrating blatantly improper conduct, and suggest that warning signs for potential misconduct are routinely overlooked or ignored.
The department operates two nondisciplinary programs intended to curb behavior and performance problems: Behavioral Intervention System and Personnel Concerns. Officers can be considered for BIS if their conduct deviates significantly from what's expected of them or if they accumulate "a pattern of Complaint Register allegations." Officers in these programs adhere to individualized plans. They might undergo retraining in specific areas, for example, see a counselor, attend a stress reduction seminar, or get a new partner.
Though Marsalis made a terrible impression on his supervisors and could have been considered a candidate for BIS, those supervisors did nothing--and apparently felt there was nothing they could have done--to address their concerns. Their depositions painted a picture of a department in which supervision is slight and the evaluation process meaningless.
Academy instructors learn nothing about the circumstances under which probationary officers are hired. Field training officers learn nothing about recruits' records in the academy. Sergeants don't know much, if anything, about complaints against their subordinates. As Sergeant Cora Sue Roberts put it in her deposition: "There's a lot of the left hand not knowing what the right hand is doing in this Department."
In other words, say Simpson's attorneys, the cracks to fall through are so huge they're canyons.
In his deposition Harrison Speakes said he did not believe Marsalis was fit to be a police officer but felt his hands were tied: that as Marsalis's field training officer, he was not in a position to say to his higher-ups, "Hey, let's get rid of this man." The performance evaluation forms he filled out on Marsalis didn't reflect his concerns. The recruit generally "performed his required functions, and that's all you are required to do," Speakes said. Beyond that, "there are some things that you don't document and you can't document. I graded him as far as the things that he did on the street and as far as the guidelines which we have to grade him on." As to any perceived character flaws or doubts about an officer's ability to do effective police work, "there's no boxes for that type of situation," Speakes said. Though he never thought Marsalis would harm anyone, Speakes said that when he heard about the rape case, "I wasn't shocked."
As a supervising sergeant, Cora Sue Roberts was responsible for making "visual contact" with the officers under her command twice a night. "So, I mean, if I see the guy twice a night just driving by me, I've done my supervisory duty for the night."
Supervisors who have reservations about their subordinates are not encouraged to act on them, Roberts testified, despite a general order that requires command and supervisory members of the department to "take necessary actions" to resolve unacceptable levels of performance. "I can go to my lieutenant. I can say, look, so-and-so's a problem....And the lieutenant says, gee, I know. Handle it. Okay. He may or may not have a private conversation with the captain. The captain may be there when I talk to the lieutenant. I may talk to the captain directly and they'll all say, yeah, we know. Handle it."
But according to Roberts, sergeants have little recourse. "There's next to nothing available," she said. They don't have the authority to refer officers to the BIS or Personnel Concerns programs. They can recommend counseling, but Roberts said that's not generally done. A counseling form would "generate hostility," she said, and "if you piss off an officer, the officer can complain about being harassed or targeted." Incurring the wrath of the officers wouldn't be worth it, she said, because there's a good chance nothing would come of the counseling recommendation: "I have this theory that there's this vast black hole at 11th and State where all of this stuff ends up." She said she wasn't willing to risk her job, "nor is anyone else, to deal with a problem employee when we get no support doing it."
The only real solution for dealing with a problem officer is to "basically just dog the guy"--stick him with an undesirable assignment and "hope that he goes someplace else the next bidding period."
Roberts described the evaluation process as "your typical rubber stamp." Every six months sergeants fill out five-item "efficiency" cards on which they rate officers from 1 to 100 on the quality of their work, quantity of their work, personal relationships, dependability, and attendance. Ratings of 70 and above are considered satisfactory, though salary increases require scores above 76. Although supervisors are supposed to take into account their subordinates' complaint and disciplinary histories, Roberts said, "we never know about those, really." During the period when Marsalis was being questioned about making 900-number calls on duty, his overall performance rating was 85. After he was reassigned to desk duty under investigation of sexual assault, he received an 84.
"If I want to really investigate this officer before I do an efficiency on him, I have to go ferret out all of the different bits of information," Roberts said. "In theory I'm supposed to go review his personnel file which is in the district commander's office." But Roberts said she didn't know any supervisors who regularly reviewed their subordinates' files. "And I won't say that the...district commander's office is hostile about giving them to you, but they don't volunteer them either....Say I'm working midnights"--when the district commander's office is closed--"I have to come in on my own time to do that."
If a civilian came to her directly with a complaint about an officer, she said, she couldn't talk to the officer about it. "My obligation as a supervisor is within one hour to get a formal CR number....The officer has got...his rights under the contract....For me to interview him about that or to get a report from him at that point is not only inappropriate, it's against the rules."
According to Roberts, the department doesn't encourage supervisors to give honest, thoughtful evaluations. "There's no space for it, nor is it wanted," she said. On the back of the efficiency card two "very thin" lines exist for comment, and every year, she said, "a list of acceptable remarks" floats around as to what should be put in those spaces.
"I've never seen anybody put on the back of the card, nobody wants to work with this officer and he's entirely disagreeable." A negative evaluation, she said, could backfire on the sergeant. It would be foolish to "offend or insult somebody that I may depend on to back me up on a job." Roberts also said that lieutenants and watch commanders sometimes even ask sergeants to evaluate officers they've never supervised.
"And how do you fill out a card for somebody you've never supervised?" Jan Susler, of the People's Law Office, asked her:
A: By guess and by golly.
A: I mean, we're a very efficient system. We don't care. It's a card. You fill it out. You make your best guess. I have filled them out on people I haven't even seen more than three times and wouldn't remember if I ever saw them again.
Q: How have you filled out their cards?
A: Okay. Okay. Okay.
Q: Just if you don't know, you fill in okay?
A: Or whatever, you know. "Does a reasonable job." "I've never heard anything bad about them." I don't know. I mean, that's how seriously the Department takes them, that's how seriously I take them....I mean, it's not quite that frivolous and we do try to take them a little more seriously than that. But unfortunately, we're sometimes put in that bind.
Roberts never filled out an evaluation card for Marsalis during the few months she supervised him and says no other supervisor ever consulted her about him. On the backs of his performance evaluation cards, provided by the city to Simpson's attorneys, supervisors wrote such innocuous things as "Cooperative and willing," "Writes good reports," "Needs some improvement in grammar/spelling in his reports," "Is learning how to deal with the public and how to get along with his fellow officers," "Could improve 'people skills' regarding fellow employees," "Operates well with minor supervision," "Has difficulty arriving on time," and "Seldom or never tardy."
Evaluation cards go into the personnel file. According to police spokesman Pat Camden, no formal meetings take place between officers and their supervisors to discuss how they might improve upon their weaknesses.
At the end of February 1996, when Marsalis transferred to the Sixth District, Roberts didn't communicate her concerns about him to his new supervisors. "It's not my job to call over to the Sixth District and say, 'Who's supervising this man this week? I want to tell you what a bum he is,'" she said in her deposition. If someone would have called her with such a message, she would have considered it an unwelcome intrusion. "I would be looking at the end of the phone saying who is this asshole and why is he calling me....If the guy's a goof, I'll find out soon enough."
When Susler asked her if she felt any obligation to tell other supervisors when officers needed extra monitoring, Roberts replied, "I would be on the phone eight hours a day calling other districts about policemen who transfer out." It's just not done, she said. The other sergeants would "look at me like I'm nuts."
Like Harrison Speakes, Roberts said she wasn't surprised when she heard about the rape charges against Marsalis. And when Susler told her of the circumstances of his hiring and the pattern of complaints against him during his time on the force, she wondered why he hadn't been terminated during his probationary period. She also said that if she had known about his previous rejections from the department, she would have more closely scrutinized his conduct. "But again, I would have to ask, if he flunked the drug test once, why are we hiring him ever?"
Roberts also indicated that Marsalis wasn't one of a kind. "We have got policemen just like that still on the job and we're doing nothing to weed them out."
Sergeant Cynthia White, of the Internal Affairs Division, was assigned to investigate Simpson's complaint against Marsalis. In 1988, eight years after joining the department, she participated with the FBI and IAD in a covert operation to stamp out corruption. The following year, according to her deposition, she testified against fellow officers who'd taken payoffs to protect drug and gambling operations. For her efforts she received an award of valor from Superintendent Leroy Martin, a letter of recognition from the head of the FBI, and at least ten anonymous threats that she suspected came from fellow officers. She began working full-time with the Internal Affairs Division in 1990.
On April 29, 1997, White was heading up a team of investigators who specialized in sexual harassment and sexual abuse cases. At approximately 1:15 PM, she was informed of the allegations against Marsalis and went to Trinity Hospital, where Simpson was giving a statement to detectives.
The next day, White received a phone call from Nanasi, who said that Marsalis had shown up at Simpson's house the previous afternoon. On May 1, White stripped Marsalis of his police powers and gave him a direct order not to contact Simpson or any member of her family. Marsalis was shunted to desk duty in what's known as the "callback unit."
After the state's attorney declined to prosecute him, Marsalis had to answer Simpson's charges or risk losing his job. When Sergeant White interviewed him on June 30, he prefaced his answers by saying he was giving the statement involuntarily, "under duress," and only so he didn't get fired.
He went on to describe a version of events that differed radically from Simpson's. He said Simpson had flagged him down on the night in question, saying that her boyfriend had been stalking her with a gun. White asked why Marsalis hadn't notified the communications dispatcher about a possible stalker with a weapon. "I asked her specifically was he doing this currently and she said, 'No,' this was something that had occurred the previous week and she said that she had notified the police at that time and she had police reports. I didn't feel that the situation justified immediate police action."
White asked if anyone had been with Simpson when she flagged him down. "Yeah, there were two black males," Marsalis said, but they "walked off when her and I started talking."
According to Marsalis, a fearful Simpson asked to be escorted safely home. He told White he dropped her off and watched her go inside, but before he could drive away she ran back out, saying "she was afraid her boyfriend would come there and terrorize her." Marsalis said Simpson then asked him to take her to the police station and that when they arrived he pointed her in the direction of human services.
A short while later, on his way home from work, he said, Simpson approached him in the parking lot "in a friendly and needy fashion" and asked him to buy her a cup of coffee. Marsalis said he took her to White Castle and that over coffee and a bite to eat, she asked if she could spend the night at his place. He agreed.
"Can you explain why you would take a stranger with obvious domestic problems to your residence?" White asked.
"I felt sorry for her," he responded. "And out of compassion and my good heart, I didn't want to see her out in the street."
Marsalis said that back at his apartment, he and Simpson had consensual sex "once, maybe twice" and that "she was enjoying it."
In the morning, he said, she mentioned that she thought she'd left her book bag in his squad car. After running errands, he drove Simpson to the Sixth District station to retrieve it. Then, he said, he took her to 79th and Drexel, whereupon she demanded $150 for car repairs. "She was very upset that I didn't give her the money that she asked for and she got out and said that she would call me later and she slammed my door."
During further questioning the next day, White asked Marsalis why he thought she'd filed the complaint. "Because I didn't give her any money," he said. White then asked if there was anything else he wished to add to his statement. "That I think that she's lying and she's only doing this for personal gain," Marsalis responded, "and that I would never do anything to hurt anybody, not anything, ever."
Simpson's attorneys figured that if Marsalis answered their questions on the witness stand he would be easy to impeach. "I mean, during his deposition he was just going to answer, he didn't care how busted he was," says Erica Thompson. "He was just going to keep going with it." No matter how senseless his answers were, she says, Marsalis stuck by them. He insisted that he couldn't remember the names of any of his girlfriends except the mother of his son, for example. And he said that many of the calls made from his home phone to dating services, nearly daily in the months preceding his encounter with Simpson, were made by his brother.
"The one that lives in Atlanta?" the PLO's Flint Taylor asked.
"Right," Marsalis answered.
Q: If you were calling him every day or two in March in Atlanta, he wouldn't have been in Chicago calling the dating service from your phone, would he?
A: Now, that's not true.
Q: How would he manage that?
A: He'd just jump up on a airplane and fly to Chicago.
Q: Call the dating service and go back?
A: That's correct.
Marsalis attempted to explain away the bad personal reference from the U.S. attorney as an act of jealousy.
Marsalis: He didn't want me to have any Cadillacs because he didn't have one. He got mad.
Taylor: He got mad because you had a Cadillac and he didn't?
A: Right. And a pretty girlfriend, too.
Q: And you had a girlfriend and he didn't?
Q: He's jealous of you?
Q: You think that's why he did what he did with regard to the police department?
A: Absolutely. Yes.
Q: Did he make more money than you or did you make more money than him?
A: I made more money than him. I made twice what he made as an attorney...
Q: What was the CTA paying you as a bus driver?
A: I was making about 50, 55 thousand. [Kiss's background check said he was making 43.]
Q: And that was twice what he was making?
A: I don't know what he was making.
Q: Was he jealous about that as well?
Q: Because here's a man that had a college education and a law degree and he couldn't have a Cadillac like you, right?
OPS and IAD investigators consider allegations against officers in a vacuum. They are not privy to prior complaints that have been lodged against officers, even if those complaints are similar to the one being investigated and even if they've been sustained. An investigator looking into the 21st complaint against an officer for choking someone would know nothing about the 20 complaints that preceded it. So having a history and pattern of abuse doesn't taint an officer's credibility when he denies new charges. Investigators eventually learn about sustained cases against the officers they are investigating, but only after they've made their findings and are considering penalties to recommend.
So as White considered Simpson's allegations against Marsalis, she knew nothing of CRs against him for improper conduct or that his alleged behavior--pulling up in his car, boasting to a girl about making a lot of money, and taking her back to his apartment--was strikingly similar to the MO attributed to him by a 15-year-old girl. But a few months into the investigation, another complaint against Marsalis landed on the desk of one of the investigators who shared an office with White. Through general conversation with her coworkers, White said in her deposition, she learned that the daughter of a Cook County correctional officer had asserted that Marsalis had unlawfully detained and sexually harassed her--just two days before he allegedly raped Simpson.
The investigator assigned to the case was new to the job and had never taken a statement before. White ended up conducting the interview.
The woman claimed that sometime after midnight on April 27 her boyfriend had beaten her up on the street. She said she flagged Marsalis down near 74th and Michigan, but rather than make out a domestic battery report, he made a pass at her, saying she "needed to get with someone like him because he could do more for me." The woman claimed that Marsalis attempted to lure her back to his apartment and that he detained her in his car for more than an hour, ignoring her repeated pleas to be let out. She said that she was scared of Marsalis, and that he got upset with her and began "getting really loud" when she rejected his advances. She said she asked to use his cell phone under the pretext of needing to check on her child, but called her boyfriend's father instead and informed him that she was being held against her will. She said Marsalis ordered her to hang up, took the phone from her, and then let her go.
White couldn't help but notice similarities between this woman's story and Simpson's. The women were around the same age. Both incidents allegedly occurred near the end of Marsalis's shift. And, White said in her deposition, the women described "a similar type of behavior. He had said similar types of things."
White asked to be assigned to the case. She found no evidence to suggest that Simpson and the other young woman had conspired to ruin Marsalis, nor any evidence to suggest that they even knew each other.
When White interviewed Marsalis about the new complaint, he denied that he'd detained the young woman against her will or made sexual advances toward her. "She's lying," he said.
White believed Simpson's story of how she'd ended up in Marsalis's custody, since McGhee and Gilmore had given statements corroborating what she'd said. And Marsalis's explanation--that Simpson had flagged him down with a story about an abusive boy-friend--seemed even more suspicious in light of how similar it was to the situation described by the new complainant. But there were some things about Simpson's story that White didn't find credible either--namely, Simpson's account of the morning after the incident. White had found no record that Simpson had reported a purse snatching that morning and discovered that there had been no male-female teams working in that area.
There was another thing that didn't add up: the whereabouts of the book bag. Since her roommate remembered seeing Simpson return home with the bag, White figured Simpson had gone to the station with Marsalis in the morning to retrieve it from his squad car, as he had claimed. While that didn't disprove the rape, White believed it damaged Simpson's credibility.
In her deposition, White said she thought that the new allegations against Marsalis bolstered Simpson's case enough to recommend his firing and figured that if she passed the cases through the system together, her findings and recommendations would be supported all the way up the chain of command. So the Simpson case idled while White turned her attention to the new charges against Marsalis.
As the months passed without resolution, Marsalis apparently grew impatient. White said in her deposition that he inappropriately called her more than five times to check on the status of the Simpson investigation. Simpson's attorneys also got frustrated with the slow pace. In their experience, an average CR took between 45 and 60 days to close. Nanasi says the only explanation they could come up with for how long this one was taking was that the police department was holding out for Marsalis to resign in the hope of protecting its own liability.
The city's Hoyle admits that a resignation "could be better for the city" than a firing when a civil suit is pending, because juries might consider a firing an indication of guilt. Also, the city could find itself in an awkward position. It must make a case for firing an officer in a public hearing before the Police Board, and elements of the case might then later be used against the city in a civil suit. But, says Hoyle, there is never any attempt by the city to encourage officers to resign. "It doesn't happen."
In his first few months in the callback unit, Marsalis accumulated numerous CRs from his coworkers and supervisors, some for such trivial things as making personal phone calls while on duty. He took a leave of absence on January 28, 1998, purportedly to pursue a law degree. If the flurry of CRs had been the department's way of indirectly pressuring Marsalis to resign, it had worked.
He quit on April 13, 1998. He later filed a claim for unemployment benefits, saying he left his job because he had no desire to return to the callback unit, where he'd been "harassed" and "written up for 11 violations."
"This is a way of getting rid of officers," he said on his unemployment form.
A month after Marsalis resigned from the police department--and 385 days after opening the investigation--Sergeant White closed the Simpson file. She did not sustain the allegations of sexual assault, citing "inconsistency of evidence," but found that Marsalis had "used his authority as a police officer" for "personal gain or influence," that he'd "impeded the Department's policy of using on-duty time for proper police service and...brought discredit upon the Department," that he'd "disrespected" Simpson by using his "police authority to compromise her into believing that [because] she had no identification by which to verify her age...she had to accompany him," that--if his side of the story were true--he had failed in his responsibility to "personally escort" Simpson into the Sixth District station to "hand her over to the desk sergeant or desk personnel or assist her in obtaining any police service that needed to be provided," and that he'd driven her "in the Department vehicle for purposes other than official police business." White recommended that Marsalis be fired. The issue, of course, was moot.
By allowing Marsalis to resign, the Chicago Police Department helped keep him employable. After he left the department, Marsalis got his state certificate for substitute teaching, and the Chicago Public Schools accepted his application.
Every year, police misconduct saddles the city with hundreds of lawsuits and costs taxpayers millions of dollars. In the last five years alone, the city has lost or settled about 1,000 cases and paid out more than $28 million. That taxpayers would have to cough up the cash for Marsalis's misdeeds was no surprise to Judge Castillo. "This is a bad situation. It's a bad cop...a bad lawsuit all the way around," he told city attorneys in a status hearing in May 1999. "You know...when we're done with this case? You might as well have me write out a check, because I'm a lifetime city resident....We're all going to be paying because a bad cop did a gruesome thing. That's what's going to happen. There's no doubt in my mind....It's one thing to be beating confessions. It's another thing to be raping people off the street when you know that you hired a cop who was not supposed to be hired....I know the facts very well, and I can't wait to see what a jury's going to do with this."
The PLO's Jeffrey Haas has been pursuing police misconduct cases against the city for many years. At a forum on March 29 organized by the Chicago Council of Lawyers, he sat on a panel with Thomas Needham, the chief of staff for police superintendent Terry Hillard. "It's been our experience," Haas said, "and I think I speak for a lot of the civil rights bar, that the city of Chicago is more willing to pay judgments to victims of police brutality than they are to change the kind of police practices which cause those settlements and judgments. We notice that when we sue police officers, it's very frequently that it's the same police officers who've been sued before, who have a history of complaints against them for excessive force and illegal seizures and verbal abuse. These cops obviously have not felt deterred by the complaints that have been filed against them, by whatever discipline has been given to them, by judgments against them. And therefore we feel that the current disciplinary system is in effect not effective. It does not deter police officers from committing acts of brutality and it does not punish those who do."
An officer named Rex Hayes, Haas pointed out, has amassed 65 CRs, primarily for excessive force and verbal abuse. Ten lawsuits have been filed against him in civil court. As a result of some of those suits, taxpayers have had to shell out $2.5 million. Yet according to Haas, Hayes has been disciplined by the police department on few occasions--and never suspended for more than 15 days. While racking up complaints and civil lawsuits, Haas says, Hayes has consistently received high performance ratings.
Drawing on what he's learned from numerous cases against the city--including the ones against Marsalis and Hayes--and the expert testimony of Lou Reiter, a former deputy chief of the Los Angeles police department, Haas put together a list of 12 administrative reforms that would better equip the department to identify and deal with abusive officers.
If the department implemented the reforms "with any type of effort," Nanasi says, "they could have a meaningful impact on rooting out people like Marsalis and Hayes."
About a year ago Haas joined forces with the Justice Coalition of Greater Chicago, which represents more than 70 community organizations. Among the reforms they are asking for are those that would allow OPS and IAD investigators to consider the substance and patterns of civilian complaints against officers they are investigating and supervising. If the second allegation against Marsalis hadn't overlapped with Simpson's, he might still be on the force.
They also want immediate supervisors to be responsible for discussing disciplinary complaints and recommending additional monitoring, counseling, and/or training. "That demand came right out of what we learned from the Marsalis case," says Haas.
At the Chicago Council of Lawyers forum, Needham began by saying that Superintendent Hillard wants the department "to be as open and as accessible as possible," and that the superintendent would make himself available to anybody who had suggestions on improving the department. "There was an era in the law enforcement profession when the model seemed to be 'Leave us alone, we are the professionals, we know what to do, and we do our best work when we're left alone,'" Needham said. "That era has clearly come and gone."
The Justice Coalition sent its "Police Accountability and Reform Proposal" to Hillard, Needham, OPS, the Police Board, and the mayor, among others. Despite what Needham had said, the response from the department was less than encouraging. A lawyer for the superintendent, Karen Rowan, wrote a letter saying, "We already meet the broad majority of your concerns."
In May the executive directors of the Justice Coalition wrote another letter to Superintendent Hillard, complaining about the response and requesting a meeting. The superintendent met with them August 14, and the coalition left believing the only hope for change lay with the mayor, who has not responded so far. They plan to march to City Hall September 12 to demand an audience.
The city agreed to settle the Marsalis case on March 27, 2000, for $625,000. The Reader petitioned to gain access to the confidential police department documents, and the city fought back, claiming that there was "no compelling need for disclosure." The Reader argued that the public had a right to know whether the police department's policies and practices for dealing--or not dealing--with problem officers undermined its mission of serving and protecting the public. Judge Castillo personally reviewed the documents in question and then agreed, writing, "Police misconduct has multiple layers of victims," including "those courageous and righteous law enforcement officers who every day risk their lives to protect their community only to suffer from the 'bad cop' label caused by the misdeeds of a rogue fellow officer."
Chicago taxpayers, Castillo wrote, underwrite this bad-cop syndrome. It "follows a familiar formula: police misconduct = seriously aggrieved or sometimes dead victim = lawsuit = settlement paid by taxpayer = no real changes or evaluations to prevent further misconduct. This ugly and expensive syndrome must come to an end." And the only way to end it, he wrote, "is to evaluate and reevaluate past practices. Unfortunately, the City cannot accomplish this on its own. Some of these issues require public debates and appropriate media scrutiny."
He closed his opinion by citing Martin Luther King Jr.'s letter from the Birmingham County Jail:
"Like a boil that can never be cured as long as it is covered up but must be opened with all its pus-flowing ugliness to the natural medicines of air and light, injustice must likewise be exposed, with all of the tension its exposing creates, to the light of human conscience and the air of national opinion before it can be cured."
Through his attorney, Marsalis declined to be interviewed for this article. Flaxman says his client was opposed to the city's settlement with Simpson and that Marsalis believes he would have been "exonerated" if the case had gone to trial.
According to police department spokes-person Pat Camden, Marsalis reapplied to be a police officer in 1999. This time, the department rejected him. But without the shameful blot of a firing on his record, it's conceivable that another police department with a lax screening process might one day invite Marsalis to join its ranks.
Art accompanying story in printed newspaper (not available in this archive): illustration/Ken Wilson.