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He Got Off

If James Phelan isn't a criminal, how come he's got a record? He and his pal Bill Lipinski want to do something about it.

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By Mike Sula

If the FBI ever pinches James W. Phelan again, it won't have to take his fingerprints. He inked several sets in the U.S. marshall's office the week after he was indicted for mail fraud. The former southwest-side state representative was acquitted in 1999, but the feds are still holding his prints, mug shots, and boxes of xeroxed business records subpoenaed during a four-year probe.

That sticks in Phelan's craw. If mail fraud was like domestic battery, or a violation of the Steroid Control Act, or many other charges tried in state court, he'd have no problem getting his record expunged. But because this was a federal case, his lawyer didn't bother to ask. An expungement order is something federal judges almost never grant.

"They have fingerprint cards," gripes Phelan. "They have photographs. When they tried us, they come in there with a cart that they wheel in. I never saw so many boxes. I said, 'Jeez, they got all those boxes on us?' Where's all that? That's a public record? Why should that be there? I was acquitted, right?"

But those cards aren't the only place he's left his fingerprints. They're all over a draft of a bill being written by Phelan's pal and padrone, Congressman Bill Lipinski. If it sees the light of day, citizen Phelan could find himself singing his song to the House Judiciary Committee. He already does to anyone who'll listen.

Much of Phelan's professional and political career has been greased by political connections, but not necessarily because he's a squeaky wheel. He came up as a 23rd Ward heeler, working his first election in 1968 and later paying his dues ringing doorbells during Lipinski's 1975 race for alderman. In 1971 he was bringing home the bacon as an investigator for the secretary of state. Five years after that he hired on as a process server for the Cook County sheriff, a job he held for over a decade before working in security at traffic court and then as director for a state municipal fund.

He soldiered in Lipinski's formidable 23rd Ward Democratic organization for almost 30 years, and was briefly mentioned as a possible aldermanic appointee before running for state rep in 1990 as the congressman's protege. He won reelection in 1992 in the remapped, majority African-American 24th District, beating fellow Democratic representative Paul Williams and another black candidate named Leroy Williams, who ran a curiously ethereal primary campaign.

Phelan has always been into crime and punishment--he studied for associate degrees in criminal justice and law enforcement, and he's a registered private detective who says he occasionally picks up some missing-persons work. In 1992, when he was in his mid-40s and already a legislator, he applied to and was accepted by the Chicago Police Department. When he began training at the academy, fellow cadets squawked to the press about his absenteeism. Phelan says the sniping was the price he had to pay for being a high-profile cadet. "Believe me, they put me through the wringer at the police academy."

But he never hit the streets. After graduating from the academy in the fall of 1993, he took a leave of absence from the department. He didn't have time to work both jobs at once, he says, though his resumé states that he "performed patrol" between 1992 and 1997. In any case, his load at the statehouse wasn't so heavy that it ruled out all other gigs. In 1979 he began running a private security company with Arthur Hartmann, a major in the secretary of state's police force. The business "more or less ran by itself," Phelan says.

On October 12, 1993, he and Hartmann had lunch at an Arlington Heights restaurant with Carl Hellstrom, manager of the Elk Grove Village warehouse of the Enesco Corporation, which produces Precious Moments figurines. Phelan Security Services had supplied guards at the warehouse since the mid-80s. During the meal, Phelan passed Hellstrom a series of three-by-five note cards. "He's paranoid," Hartmann told Hellstrom. In fact, Hellstrom was wearing a wire; he was cooperating with the FBI, which wanted evidence that Phelan and Hartmann had paid Hellstrom over $700,000 in kickbacks to do business with the company.

The feds said the threesome met that day thanks to Charlie Bradley, a longtime business associate and friend of Phelan's who owned a trucking company that also held a contract with Enesco. The FBI said Bradley was the bagman who passed the dough from the partners to Hellstrom. Bradley initially cooperated with the feds by taping telephone conversations with Phelan and Hellstrom, but he dropped out after entering a mental hospital for depression. The government said Bradley's erratic behavior was what prompted the meeting, and what made Phelan skittish enough to ask Hellstrom questions on note cards.

Not so, says Phelan. He describes the lunch as an innocent business meeting, and explains that he was merely writing figures on the cards in response to questions about billing rates.

Shortly after the lunch date, two federal agents arrived at Phelan's office with subpoenas for business records. "I had no clue why they were investigating me," he says. Leaving nothing to chance, he retained the services of lawyer Ed Genson, who's made a highly visible career of defending troubled public servants like Mel Reynolds, state rep James DeLeo, and recently the governor's old chum Dean Bauer.

The investigation wasn't reported in the press, but Phelan says the stress and depression it caused him led to his defeat when he ran for a third term. His heart just wasn't in the campaign, he says. It couldn't have helped that two front-page Tribune stories on the race described a field haunted by machine-backed ghost candidates--including, once again, Leroy Williams--who were meant to disperse the black vote and keep Phelan in office. After a recount, Phelan lost the primary to Howard Kenner by 62 votes.

Phelan says he doesn't remember the articles.

He finished up his term and extended his leave from the police department, supplementing a dwindling income from the security business by rehabbing and selling off old buildings. Expect to be indicted, Genson told him. "I'll tell you exactly how it was," says Phelan. "I'd go to sleep. I'd literally sleep for 10 or 15 minutes and wake up and thought I'd slept all night because I was rested. Look at the clock and all I did was doze off. And I couldn't fall back asleep." He wasn't the only one having a hard time. Bradley committed suicide halfway through the investigation.

But life wasn't all wiretaps and G-men. The two-year-old investigation didn't stand in the way of Phelan's appointment to the post of 23rd Ward superintendent, in 1995, just after Bradley's death. Lipinski--the ward's Democratic committeeman--gave him the nod, and Phelan began pulling down a city salary. Now a Streets and Sanitation big shot, Phelan again extended his leave from the police department.

Bradley's suicide might have been one reason it took so long to indict Phelan, but the U.S. attorney eventually got around to it on September 30, 1997. Phelan and Hartmann pleaded not guilty to three counts of mail fraud; they faced, if convicted, 40 months or more in prison. Hellstrom copped a plea and agreed to testify against the partners.

When the charges came down, Phelan had been on medical leave from Streets and Sanitation, recovering, he says, from a kidney stone and a cyst on his foot. When he tried to return to work he was called downtown and canned. He says he was told it was for poor performance, though he insisted the indictment was the real reason. "What about the presumption of innocence?" he asked.

A week later he asked to be reinstated by the police department, where, after his series of leaves lasting four years, he'd never actually worked. The department of personnel issued him a backdated letter saying his "resignation has been processed." He filed a lawsuit accusing the city of firing him without a hearing and without giving cause, but a judge tabled it until the criminal case was resolved.

Publicity surrounding the indictments led to the cancellation of four security contracts with his business, he says. It limped along another year and then he and Hartmann shut it down.

Two more years passed before his case went to trial in November 1999. The government claimed that Phelan and Hartmann had rigged the bidding process by concocting phony competing bids at inflated sums to make their own offer look like a legitimate low bid; then they'd kicked back $1.25 to Hellstrom for every hour billed to Enesco. The defendants admitted they'd paid Bradley, but not Hellstrom, and claimed the cash payments were legal commissions for bringing in business. Hellstrom was the prosecution's main witness, but, as the recipient of the alleged bribes, not a very credible one. He had already pleaded guilty, and it had been established that he'd taken bribes from Bradley and another vendor. The jurors might conclude he'd say anything to make a deal.

After a three-and-a-half-day trial they found Phelan and Hartmann not guilty. Phelan says he got his first good night's sleep

in six years.

But he wasn't ready to let it go. Originally he claimed that he was fired without a fair hearing, and in violation of the Family and Medical Leave Act to boot, but he's amended his lawsuit against the city several times. Now he says the city discriminated against him because he's white. Phelan says he had good performance reviews as a ward superintendent and that he's found at least five examples of other city employees--minorities--who faced some sort of disciplinary action and were allowed to stay on the job until matters were resolved.

But there's more. He claims the indictment was a pretext for a Machiavellian move by Democratic puppet masters. He was axed, his suit charges, because Lipinski and House Speaker Michael Madigan couldn't agree with the mayor over who to endorse in the 1998 gubernatorial primary. Daley backed John Schmidt; Lipinski and Madigan were behind Glenn Poshard.

"Well, in my heart I believe that that's why they got rid of Jim," says Phelan's civil attorney, Kenneth Flaxman. "There was this dispute going on, and you just get rid of Jim to show that we're serious about this, that you have these jobs and we're gonna take them away from you. And Phelan is going to be number one. That's my theory. I don't know if we can prove that and I don't know if we have to."

The city maintains that the firing was justified and it isn't obliged to give a reason for it.

In the end, the fallen pol's sweetest triumph wouldn't be to return to his old job, or to collect back pay, or to air some dirty political laundry. It would be to bring about the passage of a federal expungement bill--a bill clouted into the U.S. Code courtesy of James Phelan.

He calls himself a "little nobody on the southwest side" and insists he'll never run for office again--"not after what I went through"--but the baubles of clout still dangle from him. Outside the Garfield Ridge bi-level he shares with his wife and three kids, his two Cadillacs and a few brightly colored classic cars he says belong to a friend are parked by the curb and in the driveway. Their low-digit plates are the kind reserved for family, friends, and friends of friends of friends of the secretary of state. In a maroon tracksuit, his heels kicked up on a kitchen stool, he looks like a man of leisure until he starts talking about the FBI and the U.S. attorney's office. "All I know is this," he says. "If I wasn't a state representative and my partner wasn't who he was, they would have never looked twice at this case. Because this was nothing. I don't know what you know about the U.S. attorney's office, but they can make crimes--whatever they want. Literally everything is mail fraud."

Little nobody or not, Phelan is an intimidating figure, six feet four inches tall, his rumbling growl almost a burlesque of a Chicago accent. He sounds irritated, aggrieved, possibly about to explode, even when he's clearly in a good humor. When he heard that he couldn't get his criminal records expunged he really got steamed.

To him, the existence of those records

means he's technically not cleared. "See,

the problem with this is, if anybody writes a story, they'll always include 'former

indicted state representative,' 'former indicted ward superintendent.' But I was later

acquitted--right?"

Hosing down the official record won't wash away old newspaper clippings about Phelan's case or the uncharitable memories of investigators and prosecutors. But his crusade is a point of pride for him. "It's gonna be a big plus--be a big plus getting my records back."

Practical issues are also involved. Inept record keeping can lead to all sorts of injustices: for example, Hartmann, his partner, tried to renew his firearm owner's identification card after being acquitted, but was denied when the background check didn't indicate that he'd been cleared. Hartmann had to produce a copy of the judgment to get the license. Arrest records present a whole range of hassles for acquitted defendants who don't have Phelan's access to politicians, lawyers, and money.

Many states, including Illinois, allow people to petition the court to expunge some criminal records. When a judge issues such an order, notice is given to the circuit court clerk, the state records facility, and the arresting agency, which must request that the records be returned from any other place that might hold them. In Illinois, the state police's Bureau of Identification is responsible for notifying the FBI's Criminal Justice Information Services Division in Clarksburg, West Virginia. The CJIS stores over 41 million criminal fingerprint records going back to 1924. The FBI's Chicago field office archives its own case records in a storage facility in the Loop. These records may or may not include such things as fingerprint cards, mug shots, and surveillance tapes. If the court order is diligently obeyed, records at these facilities will be returned or destroyed.

On the federal level there is only one narrow statute under which a judge can issue an order of expungement. It is possible three years after a petitioner's served his sentence for a misdemeanor conviction of possession of a controlled substance--if he passes a drug test. If you've been acquitted of any crime, had your case dismissed, charges dropped, or arrest voided, you're out of luck. In the year 2000, out of more than half a million expungements processed by CJIS, only 2,225 were federal cases. "The court has broad powers," says John Soma, a professor of privacy and technology law at the University of Denver. "And it may be that the court says in the real egregious circumstance, that really this case should just be expunged because of the evidence that came out. I've never heard of that being done, but the courts generally have that kind of power. I don't know if they ever use it or not."

The lack of provisions for federal expungements can be attributed to three words synonymous with "votes" in the ears of a politician--"tough on crime." Luis Galvan, an attorney with the Federal Defender Program, says clients frequently seek expungement and his office can do nothing to help them. "People make mistakes in their life and you don't need to saddle them with that kind of burden," he says. "I'm sure it's pretty hard for anybody to muster any kind of votes for something that does something beneficial for a criminal defendant. In fact there's this whole theory that people are seeking to disenfranchise people, prevent them from ever voting again. Minority groups in particular because they're not Republican voters."

But some politicians are willing to give it a go. Two bills now pending in Congress would permit expungement of federal records under certain conditions. The Clear Your Good Name Act, calling for the removal of arrest records in cases where the charge was dismissed or never even made, is boosted by the highly publicized case of army lieutenant Manuel Gomez, who was booted from the NYPD academy in 1998 after a background check revealed a three-year-old arrest he hadn't told the force about. But Gomez didn't know there was anything to tell--the cops had realized they had the wrong man and let him go. A broader bill, the Second Chance for Ex-Offenders Act of 2001, would allow expungement for people who have been convicted of certain nonviolent crimes, served their sentences, and met a raft of other requirements that include passing a drug test and earning a GED. Supporters of these bills say millions of people are unjustly denied jobs, housing, professional licenses, or voting rights because these records exist.

"The idea is so that people that paid their debt to society and are looking to improve or turn their lives around can get jobs," said a staffer for Congressman Charles Rangel, who sponsored the second bill, introduced in February. "And hopefully, the way we're looking at it, also vote."

On the other hand, employers maintain that they have a right to know who they're hiring, and law enforcement agencies claim arrest and fingerprint records are a vital resource for any later investigations. "Fingerprints are the only real conclusive way that we have to identify a person," says FBI spokesman Ross Rice. "DNA is certainly fast approaching that, but we don't have a database."

Neither of these embryonic laws would help Phelan, as they say nothing about acquittals. Though he's sometimes reluctant to discuss his criminal case or his lawsuit, he's eager to volunteer as the poster boy for a federal expungement law campaign. He methodically clips critical newspaper articles about the criminal justice system and can rattle off a list of names of indicted and acquitted politicians and public figures--some of them former colleagues like Miguel Santiago, cleared of ghost-payrolling charges, and Ray Frias, survivor of the

Silver Shovel probe.

Late last year Phelan sent a letter trumpeting his cause to newspapers, celebrity lawyers like Scott Turow and Barry Scheck, and every member of the U.S. House of Representatives. He started a home page (www.forjustice.net) for the "Committee for Blind Justice," where a tinny "God Bless America" punches up his story and call to arms. He's received some response--a few calls from congressional staffers referring him to existing efforts, a few letters expressing support and encouragement. He hectors groups like the ACLU and the Privacy Foundation, trying to drum up support.

But when it comes down to grinding sausage on Capitol Hill, it's all about who you know. Phelan may not have the 23rd Ward's battalion of foot soldiers behind his campaign, but its commander in chief leads the charge. Phelan thanks "Lip" for getting the ball rolling. "This would go nowhere if I didn't know him. And he thinks it's fair."

That's true, says the congressman, who vouches for Phelan's integrity, though he discounts the theory that the city fired him for political reasons. "He is one of the most kindhearted, charitable people I have ever met in my entire public or private career," Lipinski says.

Lipinski can name other congressmen with constituents who face the same problem--Danny Davis has many--but Phelan's the only Third District resident he's aware of who's lobbying for expungement legislation. Nevertheless, Lipinski staffers are drafting a bill he hopes to introduce to the House in a few weeks. They're still working out the kinks, but a legislative assistant says the bill would call for an automatic order of expungement to be issued by the presiding judge 30 days after the announcement of acquittal. They're hoping to make the law retroactive, so it would apply to cases like Phelan's.

Lipinski has been busy with a congressional remap and airport issues, and Phelan knows he's not first on his buddy's agenda. But he's itching to testify before the Judiciary Committee if and when it takes up Lipinski's bill. Even if it's passed, he doesn't really believe Big Brother will give up all the goods. His experiences with the FBI and the U.S. attorney's office bred a distrust more befitting a militiaman than a southwest-side Democrat. "Regardless of what happens," he says, "if I do get my records back I'll never ever believe that I got everything. I'll believe that someplace under wraps, they'll still have my records." o

self singing his song to the House Judiciary Committee. He already does to anyone who'll listen.

Much of Phelan's professional and political career has been greased by political connections, but not necessarily because he's a squeaky wheel. He came up as a 23rd Ward heeler, working his first election in 1968 and later paying his dues ringing doorbells during Lipinski's 1975 race for alderman. In 1971 he was bringing home the bacon as an investigator for the secretary of state. Five years after that he hired on as a process server for the Cook County sheriff, a job he held for over a decade before working in security at traffic court and then as director for a state municipal fund.

He soldiered in Lipinski's formidable 23rd Ward Democratic organization for almost 30 years, and was briefly mentioned as a possible aldermanic appointee before running for state rep in 1990 as the congressman's protege. He won reelection in 1992 in the remapped, majority African-American 24th District, beating fellow Democratic representative Paul Williams and another black candidate named Leroy Williams, who ran a curiously ethereal primary campaign.

Phelan has always been into crime and punishment--he studied for associate degrees in criminal justice and law enforcement, and he's a registered private detective who says he occasionally picks up some missing-persons work. In 1992, when he was in his mid-40s and already a legislator, he applied to and was accepted by the Chicago Police Department. When he began training at the academy, fellow cadets squawked to the press about his absenteeism. Phelan says the sniping was the price he had to pay for being a high-profile cadet. "Believe me, they put me through the wringer at the police academy."

But he never hit the streets. After graduating from the academy in the fall of 1993, he took a leave of absence from the department. He didn't have time to work both jobs at once, he says, though his resumé states that he "performed patrol" between 1992 and 1997. In any case, his load at the statehouse wasn't so heavy that it ruled out all other gigs. In 1979 he began running a private security company with Arthur Hartmann, a major in the secretary of state's police force. The business "more or less ran by itself," Phelan says.

On October 12, 1993, he and Hartmann had lunch at an Arlington Heights restaurant with Carl Hellstrom, manager of the Elk Grove Village warehouse of the Enesco Corporation, which produces Precious Moments figurines. Phelan Security Services had supplied guards at the warehouse since the mid-80s. During the meal, Phelan passed Hellstrom a series of three-by-five note cards. "He's paranoid," Hartmann told Hellstrom. In fact, Hellstrom was wearing a wire; he was cooperating with the FBI, which wanted evidence that Phelan and Hartmann had paid Hellstrom over $700,000 in kickbacks to do business with the company.

The feds said the threesome met that day thanks to Charlie Bradley, a longtime business associate and friend of Phelan's who owned a trucking company that also held a contract with Enesco. The FBI said Bradley was the bagman who passed the dough from the partners to Hellstrom. Bradley initially cooperated with the feds by taping telephone conversations with Phelan and Hellstrom, but he dropped out after entering a mental hospital for depression. The government said Bradley's erratic behavior was what prompted the meeting, and what made Phelan skittish enough to ask Hellstrom questions on note cards.

Not so, says Phelan. He describes the lunch as an innocent business meeting, and explains that he was merely writing figures on the cards in response to questions about billing rates.

Shortly after the lunch date, two federal agents arrived at Phelan's office with subpoenas for business records. "I had no clue why they were investigating me," he says. Leaving nothing to chance, he retained the services of lawyer Ed Genson, who's made a highly visible career of defending troubled public servants like Mel Reynolds, state rep James DeLeo, and recently the governor's old chum Dean Bauer.

The investigation wasn't reported in the press, but Phelan says the stress and depression it caused him led to his defeat when he ran for a third term. His heart just wasn't in the campaign, he says. It couldn't have helped that two front-page Tribune stories on the race described a field haunted by machine-backed ghost candidates--including, once again, Leroy Williams--who were meant to disperse the black vote and keep Phelan in office. After a recount, Phelan lost the primary to Howard Kenner by 62 votes.

Phelan says he doesn't remember the articles.

He finished up his term and extended his leave from the police department, supplementing a dwindling income from the security business by rehabbing and selling off old buildings. Expect to be indicted, Genson told him. "I'll tell you exactly how it was," says Phelan. "I'd go to sleep. I'd literally sleep for 10 or 15 minutes and wake up and thought I'd slept all night because I was rested. Look at the clock and all I did was doze off. And I couldn't fall back asleep." He wasn't the only one having a hard time. Bradley committed suicide halfway through the investigation.

But life wasn't all wiretaps and G-men. The two-year-old investigation didn't stand in the way of Phelan's appointment to the post of 23rd Ward superintendent, in 1995, just after Bradley's death. Lipinski--the ward's Democratic committeeman--gave him the nod, and Phelan began pulling down a city salary. Now a Streets and Sanitation big shot, Phelan again extended his leave from the police department.

Bradley's suicide might have been one reason it took so long to indict Phelan, but the U.S. attorney eventually got around to it on September 30, 1997. Phelan and Hartmann pleaded not guilty to three counts of mail fraud; they faced, if convicted, 40 months or more in prison. Hellstrom copped a plea and agreed to testify against the partners.

When the charges came down, Phelan had been on medical leave from Streets and Sanitation, recovering, he says, from a kidney stone and a cyst on his foot. When he tried to return to work he was called downtown and canned. He says he was told it was for poor performance, though he insisted the indictment was the real reason. "What about the presumption of innocence?" he asked.

A week later he asked to be reinstated by the police department, where, after his series of leaves lasting four years, he'd never actually worked. The department of personnel issued him a backdated letter saying his "resignation has been processed." He filed a lawsuit accusing the city of firing him without a hearing and without giving cause, but a judge tabled it until the criminal case was resolved.

Publicity surrounding the indictments led to the cancellation of four security contracts with his business, he says. It limped along another year and then he and Hartmann shut it down.

Two more years passed before his case went to trial in November 1999. The government claimed that Phelan and Hartmann had rigged the bidding process by concocting phony competing bids at inflated sums to make their own offer look like a legitimate low bid; then they'd kicked back $1.25 to Hellstrom for every hour billed to Enesco. The defendants admitted they'd paid Bradley, but not Hellstrom, and claimed the cash payments were legal commissions for bringing in business. Hellstrom was the prosecution's main witness, but, as the recipient of the alleged bribes, not a very credible one. He had already pleaded guilty, and it had been established that he'd taken bribes from Bradley and another vendor. The jurors might conclude he'd say anything to make a deal.

After a three-and-a-half-day trial they found Phelan and Hartmann not guilty. Phelan says he got his first good night's sleep

in six years.

But he wasn't ready to let it go. Originally he claimed that he was fired without a fair hearing, and in violation of the Family and Medical Leave Act to boot, but he's amended his lawsuit against the city several times. Now he says the city discriminated against him because he's white. Phelan says he had good performance reviews as a ward superintendent and that he's found at least five examples of other city employees--minorities--who faced some sort of disciplinary action and were allowed to stay on the job until matters were resolved.

But there's more. He claims the indictment was a pretext for a Machiavellian move by Democratic puppet masters. He was axed, his suit charges, because Lipinski and House Speaker Michael Madigan couldn't agree with the mayor over who to endorse in the 1998 gubernatorial primary. Daley backed John Schmidt; Lipinski and Madigan were behind Glenn Poshard.

"Well, in my heart I believe that that's why they got rid of Jim," says Phelan's civil attorney, Kenneth Flaxman. "There was this dispute going on, and you just get rid of Jim to show that we're serious about this, that you have these jobs and we're gonna take them away from you. And Phelan is going to be number one. That's my theory. I don't know if we can prove that and I don't know if we have to."

The city maintains that the firing was justified and it isn't obliged to give a reason for it.

In the end, the fallen pol's sweetest triumph wouldn't be to return to his old job, or to collect back pay, or to air some dirty political laundry. It would be to bring about the passage of a federal expungement bill--a bill clouted into the U.S. Code courtesy of James Phelan.

He calls himself a "little nobody on the southwest side" and insists he'll never run for office again--"not after what I went through"--but the baubles of clout still dangle from him. Outside the Garfield Ridge bi-level he shares with his wife and three kids, his two Cadillacs and a few brightly colored classic cars he says belong to a friend are parked by the curb and in the driveway. Their low-digit plates are the kind reserved for family, friends, and friends of friends of friends of the secretary of state. In a maroon tracksuit, his heels kicked up on a kitchen stool, he looks like a man of leisure until he starts talking about the FBI and the U.S. attorney's office. "All I know is this," he says. "If I wasn't a state representative and my partner wasn't who he was, they would have never looked twice at this case. Because this was nothing. I don't know what you know about the U.S. attorney's office, but they can make crimes--whatever they want. Literally everything is mail fraud."

Little nobody or not, Phelan is an intimidating figure, six feet four inches tall, his rumbling growl almost a burlesque of a Chicago accent. He sounds irritated, aggrieved, possibly about to explode, even when he's clearly in a good humor. When he heard that he couldn't get his criminal records expunged he really got steamed.

To him, the existence of those records

means he's technically not cleared. "See,

the problem with this is, if anybody writes a story, they'll always include 'former

indicted state representative,' 'former indicted ward superintendent.' But I was later

acquitted--right?"

Hosing down the official record won't wash away old newspaper clippings about Phelan's case or the uncharitable memories of investigators and prosecutors. But his crusade is a point of pride for him. "It's gonna be a big plus--be a big plus getting my records back."

Practical issues are also involved. Inept record keeping can lead to all sorts of injustices: for example, Hartmann, his partner, tried to renew his firearm owner's identification card after being acquitted, but was denied when the background check didn't indicate that he'd been cleared. Hartmann had to produce a copy of the judgment to get the license. Arrest records present a whole range of hassles for acquitted defendants who don't have Phelan's access to politicians, lawyers, and money.

Many states, including Illinois, allow people to petition the court to expunge some criminal records. When a judge issues such an order, notice is given to the circuit court clerk, the state records facility, and the arresting agency, which must request that the records be returned from any other place that might hold them. In Illinois, the state police's Bureau of Identification is responsible for notifying the FBI's Criminal Justice Information Services Division in Clarksburg, West Virginia. The CJIS stores over 41 million criminal fingerprint records going back to 1924. The FBI's Chicago field office archives its own case records in a storage facility in the Loop. These records may or may not include such things as fingerprint cards, mug shots, and surveillance tapes. If the court order is diligently obeyed, records at these facilities will be returned or destroyed.

On the federal level there is only one narrow statute under which a judge can issue an order of expungement. It is possible three years after a petitioner's served his sentence for a misdemeanor conviction of possession of a controlled substance--if he passes a drug test. If you've been acquitted of any crime, had your case dismissed, charges dropped, or arrest voided, you're out of luck. In the year 2000, out of more than half a million expungements processed by CJIS, only 2,225 were federal cases. "The court has broad powers," says John Soma, a professor of privacy and technology law at the University of Denver. "And it may be that the court says in the real egregious circumstance, that really this case should just be expunged because of the evidence that came out. I've never heard of that being done, but the courts generally have that kind of power. I don't know if they ever use it or not."

The lack of provisions for federal expungements can be attributed to three words synonymous with "votes" in the ears of a politician--"tough on crime." Luis Galvan, an attorney with the Federal Defender Program, says clients frequently seek expungement and his office can do nothing to help them. "People make mistakes in their life and you don't need to saddle them with that kind of burden," he says. "I'm sure it's pretty hard for anybody to muster any kind of votes for something that does something beneficial for a criminal defendant. In fact there's this whole theory that people are seeking to disenfranchise people, prevent them from ever voting again. Minority groups in particular because they're not Republican voters."

But some politicians are willing to give it a go. Two bills now pending in Congress would permit expungement of federal records under certain conditions. The Clear Your Good Name Act, calling for the removal of arrest records in cases where the charge was dismissed or never even made, is boosted by the highly publicized case of army lieutenant Manuel Gomez, who was booted from the NYPD academy in 1998 after a background check revealed a three-year-old arrest he hadn't told the force about. But Gomez didn't know there was anything to tell--the cops had realized they had the wrong man and let him go. A broader bill, the Second Chance for Ex-Offenders Act of 2001, would allow expungement for people who have been convicted of certain nonviolent crimes, served their sentences, and met a raft of other requirements that include passing a drug test and earning a GED. Supporters of these bills say millions of people are unjustly denied jobs, housing, professional licenses, or voting rights because these records exist.

"The idea is so that people that paid their debt to society and are looking to improve or turn their lives around can get jobs," said a staffer for Congressman Charles Rangel, who sponsored the second bill, introduced in February. "And hopefully, the way we're looking at it, also vote."

On the other hand, employers maintain that they have a right to know who they're hiring, and law enforcement agencies claim arrest and fingerprint records are a vital resource for any later investigations. "Fingerprints are the only real conclusive way that we have to identify a person," says FBI spokesman Ross Rice. "DNA is certainly fast approaching that, but we don't have a database."

Neither of these embryonic laws would help Phelan, as they say nothing about acquittals. Though he's sometimes reluctant to discuss his criminal case or his lawsuit, he's eager to volunteer as the poster boy for a federal expungement law campaign. He methodically clips critical newspaper articles about the criminal justice system and can rattle off a list of names of indicted and acquitted politicians and public figures--some of them former colleagues like Miguel Santiago, cleared of ghost-payrolling charges, and Ray Frias, survivor of the

Silver Shovel probe.

Late last year Phelan sent a letter trumpeting his cause to newspapers, celebrity lawyers like Scott Turow and Barry Scheck, and every member of the U.S. House of Representatives. He started a home page (www.forjustice.net) for the "Committee for Blind Justice," where a tinny "God Bless America" punches up his story and call to arms. He's received some response--a few calls from congressional staffers referring him to existing efforts, a few letters expressing support and encouragement. He hectors groups like the ACLU and the Privacy Foundation, trying to drum up support.

But when it comes down to grinding sausage on Capitol Hill, it's all about who you know. Phelan may not have the 23rd Ward's battalion of foot soldiers behind his campaign, but its commander in chief leads the charge. Phelan thanks "Lip" for getting the ball rolling. "This would go nowhere if I didn't know him. And he thinks it's fair."

That's true, says the congressman, who vouches for Phelan's integrity, though he discounts the theory that the city fired him for political reasons. "He is one of the most kindhearted, charitable people I have ever met in my entire public or private career," Lipinski says.

Lipinski can name other congressmen with constituents who face the same problem--Danny Davis has many--but Phelan's the only Third District resident he's aware of who's lobbying for expungement legislation. Nevertheless, Lipinski staffers are drafting a bill he hopes to introduce to the House in a few weeks. They're still working out the kinks, but a legislative assistant says the bill would call for an automatic order of expungement to be issued by the presiding judge 30 days after the announcement of acquittal. They're hoping to make the law retroactive, so it would apply to cases like Phelan's.

Lipinski has been busy with a congressional remap and airport issues, and Phelan knows he's not first on his buddy's agenda. But he's itching to testify before the Judiciary Committee if and when it takes up Lipinski's bill. Even if it's passed, he doesn't really believe Big Brother will give up all the goods. His experiences with the FBI and the U.S. attorney's office bred a distrust more befitting a militiaman than a southwest-side Democrat. "Regardless of what happens," he says, "if I do get my records back I'll never ever believe that I got everything. I'll believe that someplace under wraps, they'll still have my records." o

self singing his song to the House Judiciary Committee. He already does to anyone who'll listen.

Much of Phelan's professional and political career has been greased by political connections, but not necessarily because he's a squeaky wheel. He came up as a 23rd Ward heeler, working his first election in 1968 and later paying his dues ringing doorbells during Lipinski's 1975 race for alderman. In 1971 he was bringing home the bacon as an investigator for the secretary of state. Five years after that he hired on as a process server for the Cook County sheriff, a job he held for over a decade before working in security at traffic court and then as director for a state municipal fund.

He soldiered in Lipinski's formidable 23rd Ward Democratic organization for almost 30 years, and was briefly mentioned as a possible aldermanic appointee before running for state rep in 1990 as the congressman's protege. He won reelection in 1992 in the remapped, majority African-American 24th District, beating fellow Democratic representative Paul Williams and another black candidate named Leroy Williams, who ran a curiously ethereal primary campaign.

Phelan has always been into crime and punishment--he studied for associate degrees in criminal justice and law enforcement, and he's a registered private detective who says he occasionally picks up some missing-persons work. In 1992, when he was in his mid-40s and already a legislator, he applied to and was accepted by the Chicago Police Department. When he began training at the academy, fellow cadets squawked to the press about his absenteeism. Phelan says the sniping was the price he had to pay for being a high-profile cadet. "Believe me, they put me through the wringer at the police academy."

But he never hit the streets. After graduating from the academy in the fall of 1993, he took a leave of absence from the department. He didn't have time to work both jobs at once, he says, though his resumé states that he "performed patrol" between 1992 and 1997. In any case, his load at the statehouse wasn't so heavy that it ruled out all other gigs. In 1979 he began running a private security company with Arthur Hartmann, a major in the secretary of state's police force. The business "more or less ran by itself," Phelan says.

On October 12, 1993, he and Hartmann had lunch at an Arlington Heights restaurant with Carl Hellstrom, manager of the Elk Grove Village warehouse of the Enesco Corporation, which produces Precious Moments figurines. Phelan Security Services had supplied guards at the warehouse since the mid-80s. During the meal, Phelan passed Hellstrom a series of three-by-five note cards. "He's paranoid," Hartmann told Hellstrom. In fact, Hellstrom was wearing a wire; he was cooperating with the FBI, which wanted evidence that Phelan and Hartmann had paid Hellstrom over $700,000 in kickbacks to do business with the company.

The feds said the threesome met that day thanks to Charlie Bradley, a longtime business associate and friend of Phelan's who owned a trucking company that also held a contract with Enesco. The FBI said Bradley was the bagman who passed the dough from the partners to Hellstrom. Bradley initially cooperated with the feds by taping telephone conversations with Phelan and Hellstrom, but he dropped out after entering a mental hospital for depression. The government said Bradley's erratic behavior was what prompted the meeting, and what made Phelan skittish enough to ask Hellstrom questions on note cards.

Not so, says Phelan. He describes the lunch as an innocent business meeting, and explains that he was merely writing figures on the cards in response to questions about billing rates.

Shortly after the lunch date, two federal agents arrived at Phelan's office with subpoenas for business records. "I had no clue why they were investigating me," he says. Leaving nothing to chance, he retained the services of lawyer Ed Genson, who's made a highly visible career of defending troubled public servants like Mel Reynolds, state rep James DeLeo, and recently the governor's old chum Dean Bauer.

The investigation wasn't reported in the press, but Phelan says the stress and depression it caused him led to his defeat when he ran for a third term. His heart just wasn't in the campaign, he says. It couldn't have helped that two front-page Tribune stories on the race described a field haunted by machine-backed ghost candidates--including, once again, Leroy Williams--who were meant to disperse the black vote and keep Phelan in office. After a recount, Phelan lost the primary to Howard Kenner by 62 votes.

Phelan says he doesn't remember the articles.

He finished up his term and extended his leave from the police department, supplementing a dwindling income from the security business by rehabbing and selling off old buildings. Expect to be indicted, Genson told him. "I'll tell you exactly how it was," says Phelan. "I'd go to sleep. I'd literally sleep for 10 or 15 minutes and wake up and thought I'd slept all night because I was rested. Look at the clock and all I did was doze off. And I couldn't fall back asleep." He wasn't the only one having a hard time. Bradley committed suicide halfway through the investigation.

But life wasn't all wiretaps and G-men. The two-year-old investigation didn't stand in the way of Phelan's appointment to the post of 23rd Ward superintendent, in 1995, just after Bradley's death. Lipinski--the ward's Democratic committeeman--gave him the nod, and Phelan began pulling down a city salary. Now a Streets and Sanitation big shot, Phelan again extended his leave from the police department.

Bradley's suicide might have been one reason it took so long to indict Phelan, but the U.S. attorney eventually got around to it on September 30, 1997. Phelan and Hartmann pleaded not guilty to three counts of mail fraud; they faced, if convicted, 40 months or more in prison. Hellstrom copped a plea and agreed to testify against the partners.

When the charges came down, Phelan had been on medical leave from Streets and Sanitation, recovering, he says, from a kidney stone and a cyst on his foot. When he tried to return to work he was called downtown and canned. He says he was told it was for poor performance, though he insisted the indictment was the real reason. "What about the presumption of innocence?" he asked.

A week later he asked to be reinstated by the police department, where, after his series of leaves lasting four years, he'd never actually worked. The department of personnel issued him a backdated letter saying his "resignation has been processed." He filed a lawsuit accusing the city of firing him without a hearing and without giving cause, but a judge tabled it until the criminal case was resolved.

Publicity surrounding the indictments led to the cancellation of four security contracts with his business, he says. It limped along another year and then he and Hartmann shut it down.

Two more years passed before his case went to trial in November 1999. The government claimed that Phelan and Hartmann had rigged the bidding process by concocting phony competing bids at inflated sums to make their own offer look like a legitimate low bid; then they'd kicked back $1.25 to Hellstrom for every hour billed to Enesco. The defendants admitted they'd paid Bradley, but not Hellstrom, and claimed the cash payments were legal commissions for bringing in business. Hellstrom was the prosecution's main witness, but, as the recipient of the alleged bribes, not a very credible one. He had already pleaded guilty, and it had been established that he'd taken bribes from Bradley and another vendor. The jurors might conclude he'd say anything to make a deal.

After a three-and-a-half-day trial they found Phelan and Hartmann not guilty. Phelan says he got his first good night's sleep

in six years.

But he wasn't ready to let it go. Originally he claimed that he was fired without a fair hearing, and in violation of the Family and Medical Leave Act to boot, but he's amended his lawsuit against the city several times. Now he says the city discriminated against him because he's white. Phelan says he had good performance reviews as a ward superintendent and that he's found at least five examples of other city employees--minorities--who faced some sort of disciplinary action and were allowed to stay on the job until matters were resolved.

But there's more. He claims the indictment was a pretext for a Machiavellian move by Democratic puppet masters. He was axed, his suit charges, because Lipinski and House Speaker Michael Madigan couldn't agree with the mayor over who to endorse in the 1998 gubernatorial primary. Daley backed John Schmidt; Lipinski and Madigan were behind Glenn Poshard.

"Well, in my heart I believe that that's why they got rid of Jim," says Phelan's civil attorney, Kenneth Flaxman. "There was this dispute going on, and you just get rid of Jim to show that we're serious about this, that you have these jobs and we're gonna take them away from you. And Phelan is going to be number one. That's my theory. I don't know if we can prove that and I don't know if we have to."

The city maintains that the firing was justified and it isn't obliged to give a reason for it.

In the end, the fallen pol's sweetest triumph wouldn't be to return to his old job, or to collect back pay, or to air some dirty political laundry. It would be to bring about the passage of a federal expungement bill--a bill clouted into the U.S. Code courtesy of James Phelan.

He calls himself a "little nobody on the southwest side" and insists he'll never run for office again--"not after what I went through"--but the baubles of clout still dangle from him. Outside the Garfield Ridge bi-level he shares with his wife and three kids, his two Cadillacs and a few brightly colored classic cars he says belong to a friend are parked by the curb and in the driveway. Their low-digit plates are the kind reserved for family, friends, and friends of friends of friends of the secretary of state. In a maroon tracksuit, his heels kicked up on a kitchen stool, he looks like a man of leisure until he starts talking about the FBI and the U.S. attorney's office. "All I know is this," he says. "If I wasn't a state representative and my partner wasn't who he was, they would have never looked twice at this case. Because this was nothing. I don't know what you know about the U.S. attorney's office, but they can make crimes--whatever they want. Literally everything is mail fraud."

Little nobody or not, Phelan is an intimidating figure, six feet four inches tall, his rumbling growl almost a burlesque of a Chicago accent. He sounds irritated, aggrieved, possibly about to explode, even when he's clearly in a good humor. When he heard that he couldn't get his criminal records expunged he really got steamed.

To him, the existence of those records

means he's technically not cleared. "See,

the problem with this is, if anybody writes a story, they'll always include 'former

indicted state representative,' 'former indicted ward superintendent.' But I was later

acquitted--right?"

Hosing down the official record won't wash away old newspaper clippings about Phelan's case or the uncharitable memories of investigators and prosecutors. But his crusade is a point of pride for him. "It's gonna be a big plus--be a big plus getting my records back."

Practical issues are also involved. Inept record keeping can lead to all sorts of injustices: for example, Hartmann, his partner, tried to renew his firearm owner's identification card after being acquitted, but was denied when the background check didn't indicate that he'd been cleared. Hartmann had to produce a copy of the judgment to get the license. Arrest records present a whole range of hassles for acquitted defendants who don't have Phelan's access to politicians, lawyers, and money.

Many states, including Illinois, allow people to petition the court to expunge some criminal records. When a judge issues such an order, notice is given to the circuit court clerk, the state records facility, and the arresting agency, which must request that the records be returned from any other place that might hold them. In Illinois, the state police's Bureau of Identification is responsible for notifying the FBI's Criminal Justice Information Services Division in Clarksburg, West Virginia. The CJIS stores over 41 million criminal fingerprint records going back to 1924. The FBI's Chicago field office archives its own case records in a storage facility in the Loop. These records may or may not include such things as fingerprint cards, mug shots, and surveillance tapes. If the court order is diligently obeyed, records at these facilities will be returned or destroyed.

On the federal level there is only one narrow statute under which a judge can issue an order of expungement. It is possible three years after a petitioner's served his sentence for a misdemeanor conviction of possession of a controlled substance--if he passes a drug test. If you've been acquitted of any crime, had your case dismissed, charges dropped, or arrest voided, you're out of luck. In the year 2000, out of more than half a million expungements processed by CJIS, only 2,225 were federal cases. "The court has broad powers," says John Soma, a professor of privacy and technology law at the University of Denver. "And it may be that the court says in the real egregious circumstance, that really this case should just be expunged because of the evidence that came out. I've never heard of that being done, but the courts generally have that kind of power. I don't know if they ever use it or not."

The lack of provisions for federal expungements can be attributed to three words synonymous with "votes" in the ears of a politician--"tough on crime." Luis Galvan, an attorney with the Federal Defender Program, says clients frequently seek expungement and his office can do nothing to help them. "People make mistakes in their life and you don't need to saddle them with that kind of burden," he says. "I'm sure it's pretty hard for anybody to muster any kind of votes for something that does something beneficial for a criminal defendant. In fact there's this whole theory that people are seeking to disenfranchise people, prevent them from ever voting again. Minority groups in particular because they're not Republican voters."

But some politicians are willing to give it a go. Two bills now pending in Congress would permit expungement of federal records under certain conditions. The Clear Your Good Name Act, calling for the removal of arrest records in cases where the charge was dismissed or never even made, is boosted by the highly publicized case of army lieutenant Manuel Gomez, who was booted from the NYPD academy in 1998 after a background check revealed a three-year-old arrest he hadn't told the force about. But Gomez didn't know there was anything to tell--the cops had realized they had the wrong man and let him go. A broader bill, the Second Chance for Ex-Offenders Act of 2001, would allow expungement for people who have been convicted of certain nonviolent crimes, served their sentences, and met a raft of other requirements that include passing a drug test and earning a GED. Supporters of these bills say millions of people are unjustly denied jobs, housing, professional licenses, or voting rights because these records exist.

"The idea is so that people that paid their debt to society and are looking to improve or turn their lives around can get jobs," said a staffer for Congressman Charles Rangel, who sponsored the second bill, introduced in February. "And hopefully, the way we're looking at it, also vote."

On the other hand, employers maintain that they have a right to know who they're hiring, and law enforcement agencies claim arrest and fingerprint records are a vital resource for any later investigations. "Fingerprints are the only real conclusive way that we have to identify a person," says FBI spokesman Ross Rice. "DNA is certainly fast approaching that, but we don't have a database."

Neither of these embryonic laws would help Phelan, as they say nothing about acquittals. Though he's sometimes reluctant to discuss his criminal case or his lawsuit, he's eager to volunteer as the poster boy for a federal expungement law campaign. He methodically clips critical newspaper articles about the criminal justice system and can rattle off a list of names of indicted and acquitted politicians and public figures--some of them former colleagues like Miguel Santiago, cleared of ghost-payrolling charges, and Ray Frias, survivor of the

Silver Shovel probe.

Late last year Phelan sent a letter trumpeting his cause to newspapers, celebrity lawyers like Scott Turow and Barry Scheck, and every member of the U.S. House of Representatives. He started a home page (www.forjustice.net) for the "Committee for Blind Justice," where a tinny "God Bless America" punches up his story and call to arms. He's received some response--a few calls from congressional staffers referring him to existing efforts, a few letters expressing support and encouragement. He hectors groups like the ACLU and the Privacy Foundation, trying to drum up support.

But when it comes down to grinding sausage on Capitol Hill, it's all about who you know. Phelan may not have the 23rd Ward's battalion of foot soldiers behind his campaign, but its commander in chief leads the charge. Phelan thanks "Lip" for getting the ball rolling. "This would go nowhere if I didn't know him. And he thinks it's fair."

That's true, says the congressman, who vouches for Phelan's integrity, though he discounts the theory that the city fired him for political reasons. "He is one of the most kindhearted, charitable people I have ever met in my entire public or private career," Lipinski says.

Lipinski can name other congressmen with constituents who face the same problem--Danny Davis has many--but Phelan's the only Third District resident he's aware of who's lobbying for expungement legislation. Nevertheless, Lipinski staffers are drafting a bill he hopes to introduce to the House in a few weeks. They're still working out the kinks, but a legislative assistant says the bill would call for an automatic order of expungement to be issued by the presiding judge 30 days after the announcement of acquittal. They're hoping to make the law retroactive, so it would apply to cases like Phelan's.

Lipinski has been busy with a congressional remap and airport issues, and Phelan knows he's not first on his buddy's agenda. But he's itching to testify before the Judiciary Committee if and when it takes up Lipinski's bill. Even if it's passed, he doesn't really believe Big Brother will give up all the goods. His experiences with the FBI and the U.S. attorney's office bred a distrust more befitting a militiaman than a southwest-side Democrat. "Regardless of what happens," he says, "if I do get my records back I'll never ever believe that I got everything. I'll believe that someplace under wraps, they'll still have my records." o

Art accompanying story in printed newspaper (not available in this archive): photo/Lloyd DeGrane.

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