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Follow-Up: The Meter's Still Running and the Mayor's Still Mum

Since 2003 the city has paid some $7 million in legal fees to fight five police torture lawsuits it probably can't win. The latest turn in this saga involves a secret settlement agreement designed to protect Daley.

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Defying the odds, the mayor has so far avoided the hot seat set out for him by U.S. magistrate judge Geraldine Soat Brown. Last February Brown ordered Mayor Daley to submit to questioning in a civil suit brought by a former death row inmate who says he was tortured and framed by Chicago police detectives. Daley's resistance has kept the meter running on litigation that's cost taxpayers millions of dollars in legal fees, though it's a battle the city has no moral reason to contest and slim hope of winning.

As the Reader reported in its May 11 cover story, the mayor's deposition was demanded by lawyers for Madison Hobley, Leroy Orange, and Stanley Howard, all of whom were convicted of murder and sentenced to death in separate cases before being pardoned in 2003 by Governor George Ryan, who said he believed they'd been tortured and were innocent. Judge Brown's order covered only Hobley, but it foretold the likely course of the Orange and Howard suits. In her order, Judge Brown said there was good reason to believe Daley "may have evidence" about acts of torture committed by Commander Jon Burge and detectives under his command, acts ignored by the Cook County state's attorney's office when Daley was state's attorney, from 1980 to 1989, and then by each of his successors in that office. (The Reader has reported extensively on the matter, in stories now posted in a free archive at chicagoreader.com/policetorture.)

Daley's initial public reaction to the judge's order was that he had no problem with being deposed. Indeed, several months earlier he'd gone so far as to say "the public has the right to know about this shameful episode in our history." But that willingness, if it ever existed, evaporated after his reelection February 27. On March 8, just two weeks after Brown issued her order, the city's lawyers asked U.S. district court judge Marvin Aspen to overturn it. In the meantime, under pressure from Brown, they set a June 1 date for the deposition. As April rolled into May, the lawyers representing Hobley, Orange, and Howard believed Aspen's ruling was imminent.

But June 1 has come and gone. The mayor hasn't been deposed, and Judge Aspen hasn't said a word. Instead of progress, the litigation has featured bizarre behavior by high-powered attorneys, brazen defiance by the city, settlement language that seems designed for the personal benefit of the mayor, hundreds of thousands of dollars streaming to private law firms hired by the city to work on cases they are highly unlikely to win, two federal judges tied up in knots, and a mysterious secret issue causing a holdup that will cost taxpayers at least a half million dollars and possibly far more.

Last October, four months before Brown's ruling that Daley should be deposed, Aspen had good reason to believe that the Hobley, Orange, and Howard cases against the city would soon be history. He was presiding over Hobley, Judge James Holderman had the Orange case, and Judge Wayne Andersen had Howard's. Aspen was mediating settlement talks in all three cases. Brown, a magistrate judge subordinate to Aspen, handled day-to-day matters on all three cases and was not a participant in the settlement talks.

By October 23, a deal seemed to be in hand--an agreement that would make substantial awards to the plaintiffs, but on conditions extremely favorable to Mayor Daley. (The plaintiffs' account of the negotiations appears in a motion filed this spring and has not been substantially challenged by the city.) The city agreed to pay a total of $14.8 million in damage claims and attorneys' fees, and in exchange, lawyers for the plaintiffs agreed to certain noneconomic terms suggested by the city's counsel, including:

(1) they wouldn't name Daley as a defendant "in a civil rights, obstruction of justice, and racketeering conspiracy . . . and they would not seek a finding of liability and damages from Daley for his alleged conspiratorial actions while serving as Cook County State's Attorney";

(2) they wouldn't pursue Daley's deposition in the three cases though they would continue to pursue Dick Devine, Daley's successor as state's attorney, and other Cook County officials (Howard and Orange had also sued Cook County officials, though Hobley had not);

(3) they wouldn't criticize Daley in any public statements made in connection with the settlement;

(4) these terms would remain secret and would not be put in the written settlement agreement.

That last term was extraordinary. There's nothing unusual about legal agreements with confidential terms, but those terms are normally spelled out on paper. In this case, said Kurt Feuer, one of Hobley's attorneys, there was going to be "something not written anywhere . . . kind of an off-to-the-side handshake deal with a nod and a wink. . . . I don't think anybody has ever done anything like that." Could a secret, unwritten agreement even be enforced? "An interesting question," Feuer replied. "Not a situation I've run into, and not something we were concerned about because we intended to abide by all of the terms, written and secret. I don't know if there's even any law out there on that."

On November 3, Samuel Tenenbaum, a lawyer from Northwestern's Bluhm Legal Clinic who represented the plaintiffs, and attorney Terrence Burns, counsel from the firm Dykema Gossett, which has been representing the city, agreed on the final terms. Burns was supposed to draft the written agreement, but he didn't, so the plaintiffs' attorneys did, forwarding it to Burns on November 27. Burns and Tenenbaum met on November 30. According to the plaintiffs, the city's lawyer had no objection to the agreement as set down by Tenenbaum.

On December 27, with lawyers for both sides standing before him, Aspen said that in light of the apparent agreement in the three cases, he and judges Holderman and Andersen would issue orders to stay discovery. In other words, no more depositions would be taken and no more motions to produce evidence would be filed.

If it had made the papers, this order would have come as welcome news to city taxpayers. At the moment, four private firms are engaged by the Law Department to represent the city, various police officials, and Burge and his detectives in five Area Two torture cases now in federal court. Responding to a FOIA request from the Reader in March, the Law Department revealed that the four firms and a fifth no longer employed by the city have been paid more than $7 million since 2003 for their work on these five cases (two of which were not involved in the settlement discussions).

But a week after Aspen stayed discovery, Burns informed Tenenbaum that a "new issue" had arisen. He said he couldn't tell Tenenbaum what it was, but he was going to talk to Judge Aspen to figure out how to resolve it. On January 11, Aspen told Tenenbaum that the issue was a "minor" one and had been resolved and the city would produce settlement papers in a matter of days.

The city didn't. On February 5 the judge summoned Burns and the city's top lawyer, corporation counsel Mara Georges, to a private conversation. Afterward, Aspen called all the attorneys working on the case to a February 13 status hearing. At that hearing, Burns said the mysterious issue was actually unresolved. He again declined to tell the plaintiffs' attorney what it was, though he said it had nothing to do with the plaintiffs or the terms of the settlement agreement. He said there was nothing the plaintiffs could do to help resolve it, and he couldn't say when it might be resolved or when the city would sign the written agreement.

Aspen was furious. In an April 5 pleading, the plaintiffs' attorneys described the moment: "In the presence of a room full of lawyers and his clerks, [Aspen said] that the City's conduct was 'unprecedented' in his many years of experience [Aspen's been a federal judge since 1979], and that while he would not say that City attorney Burns 'acted in bad faith,' he 'could not say the same for his client.'" Aspen promptly reopened discovery in Hobley.

Judge Andersen later lifted the stay on discovery in the Howard case. Holderman maintained the stay in Orange, as if hoping that the city would come back to the table, but he did allow Orange's lawyers to participate in a deposition of William Kunkle, once the first deputy state's attorney under Daley.

Nine days after the showdown in Aspen's courtroom came Magistrate Brown's order that Daley could be deposed. The city appealed Brown's order to Aspen but it also did what Brown told it to and scheduled the deposition for June 1.

March, April, and then most of May passed, and Aspen did nothing about the city's appeal. Hobley attorney Kurt Feuer says that in late May Aspen announced that he would rule on the city's motion by mid-June, and he told the city to be ready with a new deposition date in late June in case he ruled against it. But the city didn't do this--Feuer says he's spoken to Burns twice and written him two letters and the city has yet to propose a new date. "The city won't do anything," Feuer said, "until the court literally hits them over the side of the head with a two-by-four."

And Aspen is again silent. He still hasn't ruled on the city's appeal. It's as if the city has stayed the arm of justice. As this paper goes to press, Aspen's pen has been holstered for nearly four months.

The law firms defending the city and its personnel must have been delighted when Aspen lifted his stay on discovery. The spigot was back on--suddenly there was more work to be done. For instance, there was Kunkle. He served directly under Daley when much of the alleged torture took place, later acted as Burge's defense lawyer, and is now a judge. When he was deposed, a lawyer from each of the city's four private law firms attended, along with a lawyer from a firm engaged by the county, and two assistant state's attorneys--all of their time paid for with public money--plus three attorneys for the plaintiffs, who stand to be paid by taxpayers if they win their cases at trial. That's ten lawyers right there, on the public's dime, at a session that lasted nearly eight hours--and the private lawyers will also bill for prep time. And they didn't even finish the job. The deposition will resume at a later date. After Aspen lifted his stay similarly lengthy depositions were taken from five police officers.

The plaintiffs' lawyers have been busy too, making a case that the city proposed a settlement and then double-crossed them. In the April 5 filing they argued, "The unrebutted conduct of the City, in leading the Plaintiffs' down a primrose path, agreeing to settle on the eve of the November, 2006 elections, buying the Plaintiffs' silence and inaction on issues which appeared to be significant to the February, 2007 mayoral election, then refusing to sign the papers during that entire period, first without explanation, then by asserting a mystery 'issue' which it would not even reveal to Plaintiffs' counsel, makes out a powerful case of fraudulent bad faith by the City."

The plaintiffs maintain that when they accepted the city's offer to settle last October there was a "meeting of the minds" that under federal case law constitutes a binding and enforceable oral settlement agreement. They argue that by November 3 they'd accepted all of the city's nonmonetary terms (the ones designed for Daley's benefit), that since that date the city hasn't claimed "any material term was lacking or is in dispute," and that the city "did not even raise this mystery, non-material issue (which Judge Aspen characterized as 'minor') until some two months after the parties reached the oral agreement."

The city argues in turn that Burns never had the authority to make such an agreement, which in any case would not be final until it was approved by the City Council. In the main, however, Burns's response to the plaintiffs' accusations is to assert that the city is abiding by Judge Aspen's order to keep the negotiations confidential, and to add that Aspen himself said there was no settlement when he reopened discovery on February 13. The plaintiffs say this is ridiculous. They assert that Aspen didn't say there was no enforceable oral agreement and didn't say the plaintiffs had no basis for filing a motion to enforce; he simply observed the obvious, which was that one side was refusing to honor an agreement. The plaintiffs also assert that it's what two parties say to each other that determines whether there's an enforceable oral agreement, not what a judge says when he's simply making an observation.

As for the confidentiality argument, the plaintiffs argue that if the city truly believes it has the facts on its side it would have laid them out in its pleading and requested that it be kept under seal. As for Burns not having the authority to make an agreement, the plaintiffs say it's a little late to make that claim, given that Burns has been negotiating and making agreements for the city for years on all manner of issues in the case. The plaintiffs also argue that the city has never said, either directly or through Judge Aspen, that it would not honor an oral agreement, and that by refusing to do so it's contradicting its own request that the secret Daley protection clauses not be put in writing.

In a motion to enforce the agreement filed in April, the plaintiffs' lawyers asked for $14.8 million plus interest calculated from the time of the agreement until the money is paid (depending on when that is, the interest could add more than half a million dollars to the city payout). The attorneys also asked for compensation for time spent litigating the enforcement issue and punitive sanctions in excess of $1 million. In support of their argument for punitive sanctions, the plaintiffs' lawyers pointed out that oral agreements are a frequent occurrence in U.S. district courts, and that if they became unenforceable simply because one side decided to back out, "mayhem would rule."

The battle over whether the agreement can be enforced is being fought not in front of Judge Aspen but in the courtroom of Judge Holderman. Aspen had to recuse himself because he's a witness to the dispute and can't very well take the witness stand and preside at the same time. This puts Holderman in a bad spot. Holding a hearing would mean not only that he'd have to put a bunch of lawyers on the witness stand, something judges don't do lightly, but also that he might have to put his colleague, Judge Aspen, on the stand too. There's no rule prohibiting this but it just doesn't happen--federal judges don't get called as witnesses to testify about cases over which they're presiding. In this case, however, if the city's lawyers testify that there'd never been an oral agreement and Tenenbaum testifies that there was, the only other witness to the settlement talks will be Aspen. Holderman might ask him to submit a sworn affidavit instead of testifying, but it's possible that one side or the other or both would argue that they had the right to cross-examine the witness.

Holderman has been facing this decision since the final brief from attorneys was filed on April 5. At a status hearing on May 24, he strongly suggested that the two sides work out an agreement--the old one or a new one, any agreement would do. But the mysterious issue preventing a settlement still stands in the way, and Kurt Feuer, one of Hobley's lawyers, confirms that no talks are now taking place.

Thus, it seems as if the city has worked two federal judges into a standoff. Aspen hasn't ruled on Daley's deposition, perhaps hoping that Holderman will achieve a settlement and make the deposition question go away. Holderman, on the other hand, may be hoping that Aspen will order Daley's deposition, and that that will apply enough extra pressure on the city to bring it back to the settlement talks. Or it may be simply that Holderman is locked in place by the desire to avoid a courtroom spectacle.

Holderman is the chief judge of this district court. Aspen preceded him in that position. So the city is in the ring with two heavyweights of the federal bench and it seems to have them both stuck in their corners. Which may be exactly how the city's private firms like it.

Efforts to reach Aspen through his law clerk were unsuccessful. A call to Holderman's chambers was fielded by a law clerk who said, "The general ethical rule is that a judge certainly can't make any comments for motions that haven't been decided yet." Burns and corporation counsel Mary Georges couldn't be reached, while Tenenbaum, who negotiated the settlement for the plaintiffs, declined to comment.

Having been lobbied by lawyers and supporters of the plaintiffs, the City Council may soon enter the fray. In an interview last week, Alderman Howard Brookins said he was considering a resolution that asks the city either to honor the agreement to settle or to have Burns or corporation counsel Mara Georges explain why the city backed out. If the resolution passes, and someone who can explain the city's position appears at a subsequent hearing, it seems likely that a lawyer from each of the four firms will attend in order to monitor what's said--and of course they'll bill the city for their time.

Perhaps the most important thing to keep in mind here is that all this money--our money--is being spent on cases in which the city's prospects seem dim at best. The mayor himself has admitted there was torture at Area Two; the city's Law Department admitted it more than ten years ago. Consider that from the first day the suits were filed, everyone has known that Jon Burge--a defendant in all the cases--would be called as a witness. Burge, now living in Florida on his police pension, has escaped indictment in part because state prosecutors maintain that the statute of limitations on his offenses has expired and in part because when the statute clock was ticking, the state's attorney's office, under Daley and his successors, looked the other way.

If Burge denies the torture in federal court the U.S. attorney would have good reason to indict him for perjury. So rest assured, if he has sound legal advice he's not going to deny there was torture. If he confirms there was torture he may escape federal prosecution, but the city will certainly lose the Hobley, Howard, and Orange cases as well as the two other Burge torture cases currently playing out in other federal courtrooms. If Burge takes the third course--invoking his Fifth Amendment rights--the rules of civil procedure allow jurors to draw an inference from that. What inference would you draw if the man accused of leading a torture gang took the Fifth?

Kurt Feuer, the Hobley lawyer, describes this scenario. First he will call Hobley to the stand to recount the ordeal of being abused by police and then convicted of a crime he didn't commit, and then spending 16 years on death row. Next, Feuer will call Burge to the stand for a litany of Fifth Amendment invocations (in a deposition in 2004, Burge took the Fifth more than 400 times). The third witness will be retired police detective James Lotito, one of the detectives who interrogated Hobley. Lotito took the Fifth in a deposition this spring regarding the torture of suspect Philip Adkins, a man beaten so badly he defecated in his pants, and if Lotito were to deny that abuse on the witness stand now, only a sucker would bet he'd escape a perjury charge. Feuer also intends to bring out that Lotito was suspended for 30 days in 1973 after a suspect claimed the officer had given him an unloaded gun and told him to try to escape. Investigators believed the suspect, not Lotito.

All of which raises a few basic questions: Are these cases the city can win? Are these cases that the city should even want to win? Are these cases the city should be spending millions to try to win?

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