By Michael Miner
A federal judge inspired by Dr. Martin Luther King has unsealed Chicago Police Department files that suggest--at least to a partisan lawyer--that the department has been protecting rogue cops who practice torture.
U.S. District Judge Ruben Castillo ruled last month for the People's Law Office, which obtained the files during the discovery phase of a police-brutality lawsuit and wanted the press to see them. The Reader joined the court battle on the side of the PLO (as did Citizens Alert and the Task Force to Confront Police Violence).
The city had complained that the PLO was, in effect, trying to pull a double cross, first promising to respect confidentiality to get its hands on the files and then asking the court to nullify that agreement. City lawyers warned Castillo of the "certain and chilling effect" on the police that would follow public exposure of these private documents. The local Fraternal Order of Police accused the PLO of "bad faith" and argued that "the professional aspirations of lawyers and authors hardly constitute reasons sufficient to vacate a previously agreed upon order of confidentiality."
By "authors" the Fraternal Order of Police could only have meant the Reader's John Conroy, who's been examining police brutality in Chicago since 1990 and is in the midst of writing a book on torture. It was at Conroy's initiative that the Reader went to court seeking the disputed files, and Conroy is now examining them.
Castillo left no doubt of his conviction that the police documents deserved to see the light of day. In his order he quoted from King's famous 1963 letter written in a jail cell in Birmingham, Alabama: "Like a boil that can never be cured as long as it is covered up but must be opened with all its pus-flowing ugliness to the natural medicines of air and light, injustice must likewise be exposed, with all of the tension its exposing creates, to the light of human conscience and the air of national opinion before it can be cured."
Castillo went on, "Similarly, this Court concludes that the allegations of police misconduct contained in the disputed files must be exposed to the light of human conscience and the air of natural opinion."
During discovery in the original lawsuit the city had turned over some 12,000 pages of documents to the People's Law Office, all of them covered by a protective order. What does all that paper show? I asked the PLO's Flint Taylor.
What it shows, he replied, is the paltriness of the city's response to the allegations of police misconduct. Aside from Police Board hearings into the notorious Andrew Wilson case, which led to Lieutenant Jon Burge being thrown off the force and two detectives being suspended, there's been no housecleaning.
Wilson was arrested in 1982 for the murder of two Chicago policemen, and he's now serving a life sentence for those crimes. Represented by the People's Law Office, Wilson alleged that he suffered burns and electric shocks at the hands of Burge and two detectives during interrogation in Area Two headquarters, where Burge commanded the violent-crimes unit. Under mounting public pressure stimulated by Conroy's 1990 Reader cover story "House of Screams"--even Amnesty International got involved--the Police Board conducted the hearings that led to Burge's dismissal in 1993. Meanwhile, David Fogel, chief of the Office of Professional Standards, ordered two investigations: one into Wilson's specific accusations and another to see whether--as the PLO was asserting--a pattern of abuse existed within the police department.
These two reports were completed in 1990 but kept under wraps by the city until a federal judge ordered their release in 1992. OPS investigator Francine Sanders, it turned out, had corroborated Wilson's story. Investigator Michael Goldston had found "that abuse did occur and that it was systematic. The time span involved covers more than ten years. The type of abuse described was not limited to the usual beating, but went into such esoteric areas as psychological techniques and planned torture." Furthermore, "particular command members were aware of the systematic abuse and perpetuated it either by actively participating in same or failing to take any action to bring it to an end."
Taylor told me, "Even though [police superintendent LeRoy Martin] never accepted that report and tried to discredit it at every turn, they had to reopen these cases." Not every one, Taylor said, but a dozen or so. "There's no account taken for a pattern. Each case was evaluated only on its own, not with a view of, 'Well, this guy's involved in ten of these cases.' There was no overview, no attempt to deal with the enormity of what they scratched the surface of in the Goldston report.
"Despite all of that, some of the investigators in lengthy reports recommended [officers] be disciplined in some cases. Not in all and not for all allegations--I think in four out of the nine or ten cases [obtained through discovery]. There were another five we haven't got."
But Taylor said all those recommendations were overruled by Fogel's successor at OPS, Gayle Shines, or by Shines's first assistant. "So what it shows is that six years after the Goldston report was made public--with a similar petition by the Reader and us to get that released--what do we have? Over 65 cases I've documented of alleged torture in Area Two and later Area Three, and 15 or 16 of them being reinvestigated [by OPS]. And out of those we have one where anything happened--and that's the Andrew Wilson case. We have a group of 10 or 20 detectives and supervisors implicated in multiple cases, sometimes in 15 or 20 of them, and identified in the Goldston report as repeat torturers. And nothing's happened to any of them. And all of that was kept secret!
"You have people on death row here based on confessions that were tortured out of them. Sometimes it's the only evidence against them!"
The lawsuit that led to Judge Castillo's ruling unsealing the OPS files was settled last autumn, when the city agreed to pay Marcus Wiggins $95,000. In 1991, when Wiggins was 13 years old, he'd been picked up for questioning in a fatal shooting and charged with murder. The charges eventually were dismissed, and in 1993 Wiggins sued in federal court, alleging that he'd been beaten and subjected to electroshock while in custody at Area Three headquarters.
His suit accused seven officers assigned to Area Three of abusing him and also named, as nominally responsible, LeRoy Martin, police superintendent at the time, and Jon Burge, who by then had become boss of the Area Three detectives who interrogated Wiggins.
Taylor said he received the OPS files of four other cases in which OPS investigators recommended disciplinary action. What were they? I asked him. Wiggins was one, he said. Another was Gregory Banks, arrested in 1983. Conroy wrote about Banks in a 1996 Reader article: "In a hearing on a motion to suppress his confession [to murder], Banks testified that the three [Area Two] officers put a gun in his mouth and threatened to blow his head off, beat him with a flashlight, kicked him about the ankle and stomach, and said 'We have something for niggers' and then put a plastic bag over his head, suffocating him twice, before he agreed to give a statement confessing to involvement in a murder." Banks's conviction was later overturned, and the city paid him $92,500 to settle his civil suit against Martin, Burge, and four detectives.
The third was Phillip Adkins, arrested in 1984 in connection with a gas station robbery in which Adkins's brother pistol-whipped an off-duty policeman. In the same article, Conroy wrote that Adkins claimed that three Area Two detectives "took him to a vacant railroad viaduct, where they beat him with nightsticks and flashlights." Adkins was convicted; the city settled his civil suit out of court by paying him $25,000.
The fourth was Thomas Kraft, who was arrested in 1984 on suspicion of murder and eventually convicted. Kraft told an OPS investigator that Area Two detectives hit him with a flashlight, choked him, stomped on his feet, and left him naked in restraints in a holding cell.
The only one of these cases that resulted in any disciplinary action was that of Marcus Wiggins. Four detectives were briefly suspended.
When the People's Law Office let it be known that it wanted to show reporters the OPS files, the city's lawyers reacted peevishly. "You are apparently under the impression that these are 'plaintiff's' documents," Assistant Corporation Counsel Margaret Carey wrote Taylor. "This perception is incorrect, and these documents should be returned in compliance with your agreement....Given the repeated history of your law firm's refusal or inability to return documents in other law suits in accordance with agreements, it is necessary for the City to insist that you abide by the agreement."
Taking the city's side, the Fraternal Order of Police contributed a memorandum arguing that the Reader's "stated rationale in seeking to vindicate some generalized public right to know so as to fight police brutality is too speculative and burdensome upon individuals not parties to this litigation."
Here the FOP may have had a point. The FOP was suggesting that the public's concern about police brutality is too vague and hypothetical to be indulged at the expense of police officers' privacy. In his 1996 article Conroy had puzzled over the public's reluctance to care. "In all likelihood," he wrote, "[torture victims] on death row will be executed with the enthusiastic and uninformed consent of the citizens of Illinois."
But the FOP was talking to the wrong judge. "The defendants assert that there is a lack of sufficient public interest in the disclosure of the disputed files. This Court disagrees," Judge Castillo wrote. "Police officers are public servants sworn to serve and protect the general public. The general public's health and safety are at issue whenever there are serious allegations of police torture. The manner in which such allegations are investigated is a matter of significant public interest."
In other words, the story told by these OPS files needed to be told--even if the public wasn't clamoring to hear it.
The Truth Hurts
The Reader didn't approach Judge Castillo by insisting on the press's constitutional right to tell or the public's constitutional right to know. The First Amendment isn't that sturdy a bulwark against secrecy, least of all in the Seventh Circuit. Chicago's the home of a troubling precedent, Grove Fresh v. Everfresh, a turn-of-the-decade suit in which one orange-juice manufacturer accused another of underpricing it by unlawfully adulterating and mislabeling the product.
Though the defendant allegedly used as a preservative a carcinogen banned by the Food and Drug Administration, almost everything about this case, including the entire court file of a second suit, was sealed by U.S. District Judge James Zagel. Convinced that Grove Fresh attorney John Messina was circumventing his confidentiality orders, Zagel held him in both criminal contempt (later overturned) and civil contempt, fined him, and ordered him to pay the defendants' legal fees, which amounted to some $150,000.
The Grove Fresh case was settled out of court long ago, but its residue lingers. The court file remains under seal, which is why an Ad Hoc Coalition of In-Depth Journalists, Conroy included, was rounded up to try to pry open some of the documents that might conceivably interest consumers, such as those indicating whether they'd been drinking poison. Then there's the troubling review of Zagel's orders written by the Seventh Circuit Court of Appeals. "Until admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access....The media's right of access does not extend to information gathered through discovery that is not part of the public record."
Because of a shortage of storage space, the federal courts in Chicago observe a local rule excusing litigants from their normal obligation to file discovery documents with the court clerk. Technically, therefore, those documents aren't "admitted into the record." And given the Seventh Circuit's sweeping language in Grove Fresh limiting access, the Reader had no right to the OPS files turned over in Wiggins.
Reader attorney David Andich told Castillo that Grove Fresh shouldn't be interpreted so literally. But his primary argument covered ground that Grove Fresh didn't reach. Andich cited Federal Rules of Civil Procedure 5(d) and 26(c). The first requires discovery materials to be filed with the court unless the judge orders them not to be--establishing that discovered materials are normally public record. The second allows a judge to seal those materials for "good cause"--establishing that without "good cause" a seal isn't legitimate.
The People's Law Office and the city had agreed to keep the OPS files under wraps, but "good cause" had never been found by the court. And you have no reason to find good cause now, Andich told Castillo; these files should be seen. Fortunately for the Reader, he was before a judge who wasn't reluctant to agree.
If you thought that Judge Castillo went over the top in quoting Martin Luther King, consider Judge Zagel's 60-page opinion holding attorney John Messina in contempt. Zagel began, "The perfect tragic figure, according to Aristotle, is 'a man not preeminently virtuous or just, whose misfortune, however, is brought upon him not by vice and depravity but by some error of judgment.'" And he concluded, "Like the ultimate fate of the great figures of literature, the spectacle of an experienced attorney brought so low by his own actions serves as a cautionary tale to others, and inspires the cathartic emotions of fear and pity recognized by Aristotle as the hallmarks of tragedy."
It's as unpleasant to see a judge self-indulgently torment some powerless person as it is to see a policeman.
Art accompanying story in printed newspaper (not available in this archive): Flint Taylor photo by Randy Tunnell.