The Jon Burge case has everything and nothing to do with the Madison Hobley case. Now that Burge has been indicted, will Hobley be? Hobley, remember, accuses Burge's men of torturing him.
Burge, a former Chicago police commander, was arrested at his Florida home Tuesday on federal charges of perjury and obstruction of justice. His passport and guns were confiscated, he was released on $250,000 bond, and he's got a date next Monday in Chicago before federal judge Joan Lefkow.
The statute of limitations has long since run out on charges of torture, which Burge and police detectives under his command allegedly committed time and again in the early 80s in police Areas Two and Three. Back in 1994, after Burge had been kicked off the force, city lawyers called what he did "savage torture." Two years ago special prosecutors Edward Egan and Robert Boyle reported, after a four-year investigation, that only the statute of limitations kept them from charging Burge with dereliction of duty, mistreatment of prisoners, and abuse.
In 1987 Madison Hobley was interrogated by Burge's unit at Area Two about a fire in Hobley's apartment building in which seven people died, among them his wife and infant son. Though the police could produce no written evidence of it at the trial, they said Hobley confessed, and he was convicted and sentenced to death. He'd later claim he'd been tortured and there was no confession, and early in 2003 outgoing governor George Ryan pardoned him on grounds of innocence. Hobley sued Burge and the other officers, and in November 2003, Burge was deposed by Hobley's attorneys.
According to Burge's indictment, he lied twice during this deposition. He was asked if he'd ever used coercive methods during interrogations, and several such methods were specifically listed, including radiators, electric shock, and plastic typewriter covers (which Hobley said were used to suffocate him). Burge replied, "I have never used any techniques set forth above as a means of improper coercion of suspects while in detention or during interrogation."
He was then asked if he was aware of any other officers using these methods. "I am not aware of any," Burge replied.
Other suspects who passed through the hands of Burge and his men have filed similar suits, and Burge has been deposed by their lawyers too. But the Hobley deposition came first, and it appears that afterward Burge thought better about how he'd answered. At any rate, the Burge indictment rests totally on his responses to Hobley's lawyers.
The irony is that Hobley is again in the law's crosshairs over the same fire. On September 26, 2007, U.S. Attorney Patrick Fitzgerald announced that his office was (1) "conducting an active criminal investigation into allegations of perjury, false statements, and obstruction of justice. . . in relation to currently pending federal civil lawsuits" alleging abuse; and (2) "conducting an arson/murder investigation into the events surrounding the January 6, 1987, fire at 1121-1132 East 82nd St., Chicago."
Those who believed Burge tortured suspects, some of them innocent, and got away with it were delighted by Fitzgerald's announcement -- but also mystified. What was the deal with Hobley -- who according to Governor Ryan had been one of the innocents? Why would federal prosecutors replay a 20-year-old state crime? At his press conference Tuesday to discuss the Burge indictment, Fitzgerald was asked about the Hobley case, and all he would say was that it's proceeding.
In one sense, the two cases have nothing to do with each other. That's because Burge's alleged perjury isn't contingent on Hobley being innocent. It's as illegal to torture a guilty man as an innocent man -- a point Fitzgerald made at his press conference. Nor does the indictment claim that Hobley himself was tortured or abused. The Hobley deposition is simply cited as the setting in which Burge, under oath, swore that he'd never used improper interrogative techniques.
But in another sense, the two cases are closely linked. The Hobley suit gives Burge's alleged perjury its immediate context. And for whatever reason, 13 months ago Fitzgerald chose to announce the two investigations together. Was he simply trying to be evenhanded -- telling Chicago, look, just as we go after the torturer, we go after the torturer's victims when they're guilty?
Or is the Hobley investigation tactical? To win a perjury case, the state will have to persuade a jury that Burge had something to commit perjury about -- that he was a torturer in the first place. The widely criticized special prosecutor's report wouldn't be enough to do that. Burge certainly won't stipulate that it's accurate. Did Fitzgerald reopen the arson case in order to know all there is to know about it, so Burge can't blindside him at trial with some sort of evidence discrediting the plaintiff in the suit that brought about Burge's alleged perjury?
Beats me. Kurt Feuer, Hobley's attorney, says two assistant U.S. attorneys, an FBI agent, and an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives interviewed Hobley for about two and a half hours three weeks ago. "It was clear they’ve done a thorough investigation of him personally and of the case," Feuer tells me. He says it seemed to him that the government didn't have much of a case -- but he can't be sure. "They’re playing it close to the vest."
Hobley didn't come off well in the special prosecutor's report. Looking at the individual stories told by Burge's accusers, the report concluded that Hobley's had so many holes in it he wouldn't have been a credible witness against Burge and his men. But Feuer says the report, for whatever reasons, misrepresented what Egan and Boyle were told by the late Donald Hubert, the attorney they'd assigned to examine the Hobley case. When Feuer found out that Hubert's report existed, he subpoenaed it.
Here it is (PDF). Hubert concluded that there wasn't enough "admissible proof" to support an indictment against any of the officers Hobley accused but that the case should remain open. The emphasis here is his: "There is very strong evidence that Madison Hobley had a plastic bag put over his head and that he was beaten by Dwyer and Lotito [two of the officers]. Against these two officers the proof is strong but to a lesser degree that they put thumbs to throat and punches to the chest."