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Blind Justices?

The prosecutors who sent police torture victims to prison are now the judges who keep them there.

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Lawyers who defend police-torture victims in Chicago long ago reached a harsh conclusion about Cook County's criminal judges: most have a vested interest in refusing to acknowledge police brutality. Now these lawyers can point to a case so extreme it's almost funny: a judge who apparently ruled on his own performance as a prosecutor, deciding there was no taint to a confession that the judge himself had written. Judge Nicholas Ford passed judgment on assistant state's attorney Nick Ford. Ford had no problem with Ford's work.

It's a case that's unusual only in degree. Four years ago a group of 17 attorneys whose 12 clients alleged they'd been tortured submitted a remarkable petition to chief criminal court judge Paul Biebel. They wanted Biebel to disqualify the Cook County judiciary from any further involvement in their cases--in essence, to grant them a change of venue to some other county. The attorneys argued that 50 of Cook County's 61 criminal court judges had ties to institutions or individuals who'd benefit from there being no investigation of torture cases.

According to the petition, 3 of the 50 judges were former Chicago police detectives and 2 of those had worked with the notorious former police commander Jon Burge; 3 other judges had previously defended the city in lawsuits alleging police brutality; and 16 judges were former assistant state's attorneys directly involved in the torture cases, men and women who'd either testified on Burge's behalf at police board hearings that led to his firing or who'd taken confessions allegedly coerced by physical means, prosecuted suspects whose statements of guilt were allegedly obtained by torture, or supervised the prosecution of defendants alleging electric shock, suffocation, attacks on the genitals, severe beatings, or other physical abuse at the hands of Burge's detectives.

Even judges who as prosecutors had had no direct or supervisory participation in the torture cases were suspect, the petition argued, because they'd presumably want to protect their former colleagues. And it noted that six judges, all former ASAs, had appeared as witnesses on Burge's behalf at police board hearings when the city was trying to fire him for torture.

The core of the attorneys' argument--that judges with law enforcement or prosecutorial backgrounds cast a blind eye in police brutality cases--was made against a fluid judiciary. Judges retire and are replaced. New ones are hired to relieve caseloads. Yet it would seem the blind-eye infection alleged by the defense attorneys has persisted despite the changing cast of characters. This July, special prosecutors Edward Egan and Robert Boyle released the report of their investigation into alleged police torture by Burge and his detectives in the years 1973 to 1991. Boyle said he believed torture had occurred in "about half" of the 148 cases their staff examined during their four-year investigation. If he was right, detectives committed hundreds of acts of torture, because in abusing a victim they almost never stopped with a single act. And as no officer ever admitted to any coercion, those detectives presumably committed hundreds of acts of perjury. In how many of those cases did a skeptical judge suppress a confession because he or she felt it had been coerced? Zero. (Judge Earl Strayhorn once suppressed a confession for the "oppressive atmosphere" in which it was given, but he didn't conclude that physical abuse had taken place.) And not a single judge publicly recommended that any officer be prosecuted for giving false testimony under oath.

Nor did the state's attorney's office prosecute a single officer for perjury, misconduct, or assault. And it's from the ranks of those prosecutors that most of today's criminal court judges have come.

The 15-year history of People v. Keith Walker has been written by judges with just the kinds of backgrounds that distressed those 17 petitioning lawyers. Walker, a 23-year-old African-American, was allegedly involved in a 1991 south-side dope deal and robbery in which a white customer from Arlington Heights was shot dead. After confessing, he was tried, convicted, and sentenced to natural life, but he maintained that his confession had been tortured out of him by Area Three detectives working under Jon Burge. In March 2004 Walker filed a postconviction petition that argued the circumstances of his confession deserved to be reexamined.

A postconviction petition, or PC, is a legal procedure that allows a prisoner who has exhausted his appeals in state court to ask a judge to reexamine his case. To succeed, the petitioner must raise an issue that wasn't raised on appeal and must present the "gist of a constitutional claim." That is, he must argue that his rights under the state or federal constitution were substantially denied.

Many PC petitions are submitted by prisoners who can't afford attorneys to help them, and some arrive handwritten. Circuit court judges review the filings. Irritation with the number and quality of the petitions has led to the courthouse joke that "anyone with a pencil can write one," and in dismissing petitions judges often fall back on the boilerplate language of the statute, calling the motions "frivolous" or "patently without merit" or both.

Walker's petition, which stated that he "reads at a 4th grade level and [has] an IQ of 65 which is borderline retardation," was a pastiche of well-stated legal argument, seemingly lifted from other prisoners'

filings, and sometimes inarticulate material focusing on his particular experience. He argued that his confession had been coerced by electric shock and should be reconsidered; in support he cited the 1993 firing of Commander Burge, the 1990 Goldston Report (Walker spelled it "Gholston"), which was an Office of Professional Standards document that concluded there'd been systematic torture at Area Two, and several higher court decisions in Area Two cases that awarded prisoners new hearings based on their claims of torture. While Burge's firing and the filing of the Goldston Report had occurred before Walker's trial, and thus could technically be barred from consideration on a PC petition because they were not new evidence, the higher court decisions had all come after Walker was convicted, and several of them involved Detective Daniel McWeeny, the officer who had interrogated him.

Thus Walker's petition, while badly written and in places inaccurate (he wrongly alleged that McWeeny, whom he mostly referred to as McQueeny, had been fired over his participation in a torture case), did seem to meet the legal requirements. He made a constitutional claim (coercion in extracting a confession is unconstitutional) and raised an issue that had not been raised in his appeal. Even the fundamental fairness doctrine seemed applicable: in the years after Walker's trial, the Illinois appellate and supreme courts, finally convinced that torture might have taken place, had handed down several rulings that allowed for evidence of a pattern of abuse to be considered in Burge torture cases. That avenue of argument had been closed to Walker.

Walker's petition landed on the docket of Judge Ford, who on April 20, 2004, summarily dismissed it.

Although Illinois law requires that the court should specify "the findings of fact and conclusions of law it made in reaching its decision," the certified report of disposition consisted of the name of the judge, the date of the ruling, and four words: "post conviction petition dismissed." The judge saw no problem with Walker's confession, which had been handwritten by a prosecutor and signed by Walker. That prosecutor had testified at a pretrial hearing in Walker's case and had given his name under oath as "Nick Ford."

Once Walker's PC petition had been dismissed, Steven Becker of the Illinois appellate defender's office took on his case. Becker filed his first brief in November 2005, arguing that Walker's plea had met the legal standard necessary to reopen the case. The state responded in January, and Becker replied on February 10. On February 24, however, Becker changed course, filing a brief that attacked not the judge's decision but the judge himself. "According to Judge Ford's biography," Becker wrote, referring to Sullivan's Judicial Profiles and A Directory of State Judges in Chicago, "it appears almost certain that the ASA 'Nick Ford' who testified against Walker at his suppression hearing in 1994 is the same Judge Nicholas R. Ford who denied Walker's post-conviction petition in 2004." Becker said Judge Ford should have been disqualified.

The state, quite uncharacteristically, had nothing to say in reply. On May 30, a three-judge appellate court panel headed by Judge Margaret Stanton McBride directed Judge Ford "to determine whether he is the same Nicholas Ford who testified at defendant's suppression hearing. If he answers that question in the affirmative, he should recuse himself and the matter should be reassigned."

Given the seriousness of Ford's gaffe--in a case involving a man serving natural life who claimed to have been tortured with electric shock--the language of McBride's order seems extraordinarily mild. "There is no indication that Judge Ford was aware of this conflict or that he was motivated or biased in his decision," McBride wrote.

Suppose he wasn't aware. Did Judge Ford, known to some courthouse regulars as "Quick Nick," read the petition so hastily that no bells rang? Could he have read the document and not recognized the name of the murder victim, Shawn Wicks? Was his memory so porous that he did not remember a case in which Wicks allegedly made a "dying declaration" to Detective McWeeny, identifying the perpetrators by hand squeezes (once for no, twice for yes)? Did he fail to recall a case that hinged on a confession he'd written, named a station house where he'd worked, and involved allegations of electric shock and the most notorious police commander of the last two decades--whose name, mentioned in print on a regular basis, never appears without the word "torture" in close proximity?

It may be true that Ford paid the case that little attention--though the idea seems damning on its face. It may also be true that the name Keith Walker meant nothing to Ford--though the case had yet another memorable aspect: Walker somehow managed to slip out of his handcuffs and disappear. He was rearrested after any injuries he might have suffered in his interrogation had had a month to heal. Ford did not return calls for comment.

Like Ford, Judge McBride was a former assistant state's attorney who'd had a brush with Burge torture cases. She served in the state's attorney's office from 1977 to 1987. In January 1980 she took the confession of Derrick King, a suspect in an armed robbery that had resulted in the shooting death of a store clerk. King later alleged that Area Two detectives had used a baseball bat to extract his confession, a statement taken by McBride in the presence of Detective Robert Dwyer. Dwyer's sister came forward in 2004 and said that her brother had told her, in Burge's presence, that in dealing with "niggers" they "beat the shit out of them, they throw them against walls, they burn them against the radiator, they smother them, they poke them with objects, they do something to some guys' testicles."

A witness for the state who came to the police station to view a lineup later testified that King's face was bruised and swollen--damage that could not be seen in the black-and-white photo of the suspect taken at the station. The witness's testimony was notable because he believed he'd been robbed by King and therefore had no discernible motive to help him. At a hearing on a motion to suppress King's confession, McBride testified that she'd heard no screams coming from the interrogation room. King was convicted, largely on the basis of his confession, and sentenced to death. (In January 2003, his sentence was commuted to life imprisonment by Governor George Ryan, who did the same for all death row inmates.)

In 2000 the Illinois Supreme Court ordered a new hearing on the issue of whether King's confession was voluntary. That hearing has never taken place, but if and when it does, McBride is likely to be called to testify. She declined an opportunity to answer questions for this article.

Six years after taking King's confession, McBride was the prosecutor on duty at a 1986 bond hearing when Aaron Patterson, charged with a double murder, said that he'd been suffocated with a plastic bag and beaten by detectives at Area Two and that an assistant state's attorney had "physically abused" him and "tried to force me to sign a written statement that he conjured up."

Judge Frank Gembala told McBride she was "on notice" to investigate Patterson's story, but the state's attorney's office has never produced documentation proving that any investigation took place. Patterson was convicted and sentenced to death, and Governor Ryan pardoned him in 2003.

And now McBride is an appellate judge. After her ruling returned the Walker case to the lower court, Judge Ford apparently determined that he and ASA Nick Ford were the same person, and the case was reassigned to Judge Lon Shultz.

Lon Shultz had been an assistant state's attorney for 16 years before becoming a judge in 1994, and his prosecutorial career overlapped with Nick Ford's. (In fact, Ford took over one of Shultz's more famous cases--the murder of Nick Martini, a west-side grocery store owner--after Shultz ascended to the bench.) Like Ford, Shultz had a history with the Burge gang: he'd prosecuted Lonza Holmes, who claimed Burge had beaten him with a phone book in 1985. In that case detectives told contradictory stories about Holmes's interrogation, but neither the judge nor the appellate court seemed to notice the contradictions.

By the time Shultz received the Walker case, the file included two affidavits mailed too late for Ford to have considered them. One was from Walker saying, "I been trying to get in school and better myself and the people here at stateville c.c. told me Im on a waiting list because I have life in jail and that im very depressing and Im on med. I take med. everyday 2 times a day! I try to kill myself of a crime I did not do and I have a doctor at stateville c.c. his name is Dr. Woods he talk to me once a month! he be trying to help me get my life in order." The other was from Stateville inmate Patrick Pursley, who indicated that he helped other inmates with legal documents, that he'd helped Walker, and that Walker could not read, could not grasp any law, and had no idea what "gist" meant.

Whether Shultz saw those documents is not clear. On October 11 he hammered Walker in a ten-page opinion that not only dismissed the prisoner's petition as frivolous and patently without merit but also denied his request for appointment of counsel. It was a ruling that, according to attorney Steven Becker, Shultz had no legal authority to make. The appellate court decision that sent the case back to the lower court specifically referred to Illinois statutes dealing with "second stage" postconviction petitions. Once a PC petition has reached second stage--and McBride indicated that Walker's had--a circuit court judge cannot summarily dismiss it. If the defendant is indigent and has requested counsel, the judge has no choice but to appoint one.

Most Burge torture cases have been unsuccessful on appeal. Walker's was one of the few to return to the trial court for further proceedings, and since his 1994 trial much has been learned about Burge's operation. We now know that torture migrated from Area Two to Area Three along with Burge and we know that Detective McWeeny seemed to play "good cop" in several cases, taking confessions from suspects allegedly tortured by other detectives.

At a second stage hearing on Walker's petition, new evidence of abuse might have been introduced, detectives might have been questioned, and Judge Ford might have found himself again testifying under oath. Steven Becker observes that Shultz's ruling to dismiss the petition prevents any of that from happening. Becker and his colleague Michael Polletier filed a motion asking Shultz to vacate his order, but Shultz refused to. Becker says they'll appeal. Shultz didn't respond to calls for comment.

Responding to the 17 defense lawyers who'd asked for the disqualification of the Cook County judiciary in torture cases, chief criminal court judge Paul Biebel wrote that he agreed "public confidence in the judiciary is of significant importance." But in his April 2003 ruling he concluded that moving those cases out of the county was the wrong answer. "The best remedy for any perceived lack of faith," he said, "is to allow the judges of this jurisdiction to preside over these matters with diligence and impartiality, as they have sworn to do."

Biebel refused to believe the judges could be as partial and self-serving as the lawyers' petition made them out to be. "The removal of Petitioners' cases from Cook County would, in essence, be an acknowledgement that the judges therein are incapable of fulfilling their duty," he wrote. "This court declines to draw such a conclusion."

John Conroy can be reached at jconroy329@aol.com

Art accompanying story in printed newspaper (not available in this archive): on the cover: Brian Gubicza (judges), Andrea Bauer (cake), Mary Ann Alexander (bracelet).

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