By John Conroy
Andrew Wilson, the convicted killer of two policemen, has emerged victorious in his long battle against the city and the detectives who he claimed had tortured him. U.S. District Court judge Robert Gettleman has ordered the city to pay more than $1 million as a result of the electric shock, burning, and beating that even the city's lawyers now acknowledge were administered to Wilson by former police commander Jon Burge and detectives from Area Two. Wilson, who murdered Chicago police officers William Fahey and Richard O'Brien on February 9, 1982, is serving a life sentence, and Judge Gettleman's decision will do nothing to change that, nor will it enrich the gunman, as the judgment is structured so that he does not receive even a penny.
Nonetheless it is a remarkable victory. Wilson is a man of average intelligence who was misdiagnosed as mentally handicapped as a child, and he attended schools without ever learning to read. He took up theft and burglary as an adolescent and later graduated to armed robberies in which he tied up his victims while he ransacked their possessions. In a variety of court proceedings in the last 14 years he has consistently presented his claim that he was tortured in the wake of the Fahey and O'Brien murders, a claim vehemently denied by articulate, well-decorated, and seemingly upstanding policemen. His story exposed the city's best and worst. Two policemen, unknown to this day, rose to the defense of a man they probably hated. A nurse at Mercy Hospital did the same. On the other hand, there was the outrageous duplicity of the city's legal team, which proclaimed from the beginning that the torture never happened and now screams loudly that it did.
The breakdown in payment ordered by Judge Gettleman is as follows: The city is to pay $900,016 to Wilson's lawyers--Flint Taylor, Jeffrey Haas, and John Stainthorp of the People's Law Office. An additional $100,000, earmarked for Wilson, is to be paid directly to the widow and two children of William Fahey, who are identified in court documents as "judgment creditors" of Andrew Wilson. The Fahey family won a wrongful death suit against Wilson years ago, and thereby ensured that they could garnish any money awarded him in his civil rights suit against Commander Burge, his comrades, and the city.
The city's lawyers have agreed to abide by half of the judge's order. They have not appealed the judgment that the city was responsible for the misdeeds of policemen who were aware of brutality and did not stop it or get proper medical attention for Wilson. For their inattention to duty, the city has already issued checks to the Fahey family for $50,448 and to the People's Law Office for $504,749. The city's lawyers deny, however, that taxpayers should pay for the misdeeds of policemen when they apply electric shock to suspects. The corporation counsel is appealing that portion of the Gettleman judgment in the U.S. Court of Appeals.
Judge Gettleman's judgment orders, which received no notice in local newspapers or on radio or television, were handed down in mid-July of 1996.
The long legal battle began at about 2 PM on February 9, 1982, when Gang Crimes officers Fahey and O'Brien pulled over a brown Chevrolet that aroused their suspicions for reasons they did not live to articulate. Inside the car were the brothers Andrew and Jackie Wilson, who had committed a burglary less than an hour before. The officers began to search the front seat and Andrew's jacket. Andrew then stripped Fahey of his gun, shot him in the head, and turned the gun on O'Brien, whom he shot five times.
The Wilson brothers remained at large for five days. They were arrested in separate hiding places on Valentine's Day, gave inculpatory statements, and were subsequently tried together and convicted. Both convictions were reversed on appeal. The two brothers were then tried separately, and they lost again. There has never been much doubt about their guilt, only about the methods used to establish it.
Andrew Wilson's story of having been tortured emerged not long after he was removed from the custody of the police. He complained of having been beaten, kicked, suffocated, burned, and given electric shock, the shock delivered by two different devices to his genitals, ears, nose, and fingers. Wilson said the shock caused intense pain in his head and made him grind his teeth so hard that two of them loosened, and he testified that he later tried to get a prison doctor to pull them.
It sounded like a fantastic story, but the evidence was hard to dismiss. In reviewing his first trial, the judges of the Illinois Supreme Court cited medical reports from Mercy Hospital that listed 15 separate wounds to Wilson's head, chest, and leg. The judges came to "the inescapable conclusion...that the defendant suffered his injuries while in police custody."
More telling than the Mercy Hospital records, however, were photographs of strange U-shaped scabs on Wilson's ears, as if a miniature crocodile had dined there. Wilson contended that the scabs had been made by alligator clips attached by wires to a black box, a device that generated electricity and seemed to resemble a modified army field telephone. He also said that the series of parallel scars on his chest and the large scar on his right thigh were the result of having been held against a radiator while he was being shocked.
During the course of two civil rights trials, lawyers for Commander Burge, Detective John Yucaitis, and Detective Patrick O'Hara offered various explanations for the wounds. The marks on the convict's ears, they said, were indeed inflicted by alligator clips. They tried to convince two juries that Wilson had found a roach clip in the police lockup or in the jail and had inflicted the marks himself in order to support his fantastic tale. Over the course of the two trials, the officers offered contradictory explanations for the wounds on Wilson's chest and thigh. At the first trial, Area Two detectives claimed that Wilson could not have been burned because he had been interrogated in interview room two, where the radiator didn't work, and they produced an eminent physician as expert witness who said the marks were abrasions, not burns. The policemen's attorney suggested that those abrasions had been inflicted when Wilson dived across the back of a car in order to shoot Officer O'Brien. At the second civil rights trial the detectives ditched their burn expert and argued that Wilson had been interrogated in interview room one where the radiator did work, that the marks were indeed burns, and that the convict had inflicted them on himself. To back up that story they produced jailhouse informant William Coleman, an Englishman with nine aliases who had served time in England, Ireland, Germany, Holland, Monaco, Hong Kong, and the United States for charges including perjury, fraud, theft, manslaughter, blackmail, and possession of cocaine with intent to deliver.
The first trial ended with a hung jury, and a mistrial was declared on March 30, 1989. Commander Burge and detectives Yucaitis and O'Hara returned to the defendants' bench a second time three months later. In the interval, Wilson's attorneys had begun to amass some explosive new evidence. During the course of the first trial, Taylor, Haas, and Stainthorp had begun to receive anonymous letters, seemingly written by someone who worked at Area Two, that indicated that Burge's electrical devices were by no means a product of Wilson's imagination. The anonymous policeman directed the lawyers to a man named Melvin Jones, then incarcerated at Cook County Jail. As Wilson's attorneys were busy with the trial at hand, they recruited public defenders Dale Coventry and Alan Sincox, Wilson's criminal lawyers, to pursue the new leads.
Jones told Coventry that he had been electroshocked by Commander Burge nine days before Wilson received the same treatment, and Coventry located a transcript of a seven-year-old court hearing in which Jones had described the interrogation. At that hearing, Jones had said that Burge tried to intimidate him by naming two other men who had writhed on the floor in pain when they were shocked. Coventry and Sincox found those two men, and they led to others, and soon word went around various prisons that someone was interested in torture victims from Area Two and from Area Three, where Burge also served as a commanding officer. Today, the list of victims compiled by the People's Law Office includes the names of 61 men and one woman who claim they were physically abused in a variety of ways by Commander Burge or by detectives who were serving or had served under his command. Some of those victims have received substantial payments to settle their claims out of court, the most recent being Marcus Wiggins, who was 13 when he alleged he had been beaten and subjected to electric shock. The city recently paid the Wiggins family $95,000.
Wilson's lawyers might have been able to blow the case wide open with their growing list of alleged victims, who often told remarkably similar stories, but U.S. District Court judge Brian Barnett Duff was unwilling to let the jury hear about it. In a survey published in Chicago Lawyer just as Wilson's first trial got under way, Duff had been rated the worst judge on the federal bench (this past October he resigned from the bench, claiming a physical disability, amid reports that the Justice Department had filed a judicial disciplinary complaint against him). Duff's reasoning, rulings, and demeanor through both of Wilson's civil rights trials bordered on the bizarre. He chastised Wilson's attorneys for allegedly shuffling their feet, for their facial expressions, for having their hands in their pockets, and for leaning on the lectern, and he found them in contempt of court on at least eight occasions. When Taylor, Haas, and Stainthorp moved to put Melvin Jones on the witness stand, Duff denied them. Among other reasons, he cited what he saw as an inconsistency in the testimony of the two men who said they had been shocked by the same man in the same police station within nine days of each other: what Wilson had referred to as alligator clips Jones had called tweezers.
The jury in that second trial, ignorant of the growing list of Area Two victims, produced a confusing verdict. On August 8, 1989, after three days of debate, the jurors concluded that Wilson's constitutional rights had been violated, but they cleared the policemen accused of those violations. They went on to conclude that the city had a de facto policy of abusing people suspected of shooting policemen, but they also said that Wilson had not been subjected to excessive force as a result of that policy.
The police hailed the verdict as a victory. Wilson's attorneys appealed. On October 4, 1993, a three-judge panel of the U.S. Seventh Circuit Court of Appeals handed down its decision, expressing frank incredulity at what had gone on in Judge Duff's courtroom. Chief Judge Richard Posner wrote that Duff had allowed William Kunkle, the policemen's attorney, to load the jury with "a mass of inflammatory evidence having little or no relevance to the issues in this trial...and thus turn the trial of the defendants into a trial of the plaintiff....Even a murderer has a right to be free from torture and the correlative right to present his claim of torture to a jury that has not been whipped into a frenzy of hatred." Posner pointedly noted that while Kunkle had been allowed to introduce the irrelevant, Wilson's attorneys had been prevented from presenting the relevant. The judge said that Melvin Jones and one other alleged torture victim, whom Duff had also barred from the witness stand, should have been allowed to testify, and that a British reporter who had written about jailhouse informant William Coleman should have been allowed to take the stand and say that he had investigated the con man and had concluded that he was "a consummate liar," an opinion that Posner described as "apparently well-substantiated."
In regard to the question of whether the city had a policy of abusing people suspected of killing policemen, Posner and his two colleagues found that while the city may have been "careless, maybe even grossly so given the volume of complaints," Wilson's lawyers had not established a policy. Gross carelessness on the part of a police chief and the failure to eliminate a practice of beating suspects, the court said, did not demonstrate approval of the practice. The judges dismissed the policy charges against the city and sent the rest of the case back to district court for a third trial, and there it eventually landed on Judge Gettleman's docket.
Seven months after the second trial ended and long before Judge Posner's ruling, David Fogel, the chief administrator of the Police Department's Office of Professional Standards, decided to reopen the agency's investigation of the Wilson case, having reached the conclusion that it had been bungled the first time around. Fogel had been a university professor in criminal justice before being appointed to direct OPS by Mayor Harold Washington in June 1984, more than two years after the Wilson murders. Periodically, Fogel demonstrated a sort of maverick personality. In 1987, for example, he wrote a memo to Mayor Washington entitled "Proposed Revamping of Office of Professional Standards" in which he noted, "A good number of our investigators continue to be irremediably incompetent. They are part of the inherited politically corrupt heritage of pre-Washington days." He estimated that the "group of incompetents" numbered 17, approximately 30 percent of the investigative staff. He went on to say, "The troops love OPS....The appearance of doing a thorough investigation with full due process (and endless unnecessary reviews) for all, actually operates to immunize police from internal discipline, increases their overtime, leads to an enormous "paper storm" and has institutionalized lying....I have come to the conclusion that OPS gives the appearance of formal justice, but actually helps to institutionalize subterfuge and injustice."
In reopening the Wilson case, Fogel chose two of his top investigators. He ordered Francine Sanders to analyze the particulars of the Wilson case and he told Michael Goldston to investigate the allegations of a pattern of abuse by Area Two detectives. Fogel's successor, Gayle Shines, a lawyer appointed by Mayor Daley, received the Sanders and Goldston reports and submitted them to police superintendent LeRoy Martin in November 1990. In a cover letter she praised the reports as "a masterful job."
Investigator Sanders had concluded that "the only reasonable explanation for Wilson's injuries" was that they "were sustained during Wilson's detention in an interview room on the second floor of Area Two Headquarters and that they occurred at the hands of the police and under
the sanction of the officer in charge...
Lieutenant Jon Burge." She did not shy away from difficult conclusions, finding that Burge had indeed administered electric shock and that Wilson had been burned. She recommended that charges should be sustained against Burge, Yucaitis, and O'Hara.
In his separate report, investigator Goldston listed the names of 50 people allegedly mistreated at Area Two between 1973 and 1986 and grouped them by the techniques imposed (electroshock, suffocation, hanging by handcuffs, etc). He concluded that "the preponderance of evidence is that abuse did occur and that it was systematic....The type of abuse described was not limited to the usual beating, but went into such esoteric areas as psychological techniques and planned torture....
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."
Superintendent Martin had been Burge's supervisor at Area Two for nine months in 1983 and hence seemed to be implicated, though not by name, by Goldston's conclusions. Martin sat on both reports for more than a year, doing nothing. Finally, on November 8, 1991, he suspended Burge, Yucaitis, and O'Hara without pay, and formal charges were filed with the Police Board seeking their permanent dismissal.
The Police Board hearings were scheduled for February 10, 1992. Three days before they began, U.S. District Court judge Milton Shadur ordered city attorneys to release the Sanders and Goldston reports, and so, almost 20 years after the first complaint of torture, the public learned that Wilson's complaints were far from unique. Mayor Richard Daley found himself denouncing the work of Goldston, his own employee. "These are only allegations," he said. "These are not substantiated cases."
The Police Board hearings lasted for five weeks. Many witnesses were heard from who had not been heard in Judge Duff's courtroom, Melvin Jones among them. The hearing officer then turned over the most voluminous record in Police Board history--over 3,800 pages of testimony and argument, scores of exhibits and motions, and several thousand pages of transcripts from related court proceedings dating back to 1982. The board members--five lawyers, a community activist, and three business executives (one a former policeman), all appointed by the mayor--deliberated for 11 months.
On February 10, 1993, they issued a cautiously worded decision, as if they were afraid to shed too much light in so dark a corner. They mentioned the marks on Wilson's ears but offered no conclusions about how they got there. They said that the case of Melvin Jones was "particularly probative with respect to Burge," but they never flatly stated that Burge had shocked Wilson or that he had possessed any electrical devices. They concluded that Wilson was burned at Area Two but they did not say who burned him. The board members never referred to the treatment as torture. Wilson instead received "physical abuse."
The Board concluded that Burge "did...strike and/or kick and/or otherwise physically abuse or maltreat" Wilson, that as commanding officer he did not stop others from engaging in the abuse, and that he did not secure prompt medical attention when it was clearly called for. Detectives Yucaitis and O'Hara were judged guilty of failing to stop the abuse, failing to report it, and failing to secure medical attention in its wake. The board then said that it had voted to dismiss Commander Burge from the ranks of the police and to suspend detectives Yucaitis and O'Hara for 15 months without pay. Burge and his comrades filed suit in Cook County Circuit Court, asking that the judge throw out the board's decision. The judge refused. The policemen then took their case to the Illinois Appellate Court. On December 15, 1995, the appellate judges also declined to overturn the board's decision.
In the meantime, back in federal court, Wilson's attorneys had moved for summary judgment, asking that Judge Gettleman adopt the findings of the Police Board rather than go through a third federal trial that would largely repeat the hearings held by the board. There was ample precedent for such a decision, and on October 3, 1995, Judge Gettleman granted Wilson's motion, but entered a stay of execution pending the decision in the Illinois Appellate Court on the policemen's appeal. After that court ruled against the policemen two months later, Judge Gettleman issued his final judgment. The primary task that remained was to determine the size of the damages to be paid.
Though the acts of Andrew Wilson represent the worst the city has to offer, his treatment brought out the best in others. He would never have prevailed in federal court had some remarkable people not stuck their necks out in the interest of justice. One was a lockup keeper at police headquarters, a man whom Wilson's civil and criminal lawyers were never able to identify. He was presented with a bruised and bleeding Wilson after Wilson had been transported from Area Two by squadrol drivers Mario Ferro and William Mulvaney. The lockup keeper took one look at the prisoner and refused to accept him, thereby forcing officers Ferro and Mulvaney to drive the killer to Mercy Hospital for treatment. The lockup keeper had been expected to turn a blind eye, to simply put Wilson in a crowded cell and later support the claim that his injuries had perhaps occurred in the lockup at the hands of other prisoners. Instead, when Wilson was returned from the hospital, the lockup keeper put him in a front cell where he could be watched.
Patricia Crossen, a nurse at Mercy Hospital, also stood tall. Having nothing to gain and perhaps much to lose in terms of her standing in her community, she bore witness to Wilson's arrival in the emergency room. Under oath she said that when officers Ferro and Mulvaney entered they announced that they had just come for the paperwork, that if Wilson knew what was good for him he would refuse medical treatment. Crossen testified that Wilson did initially decline treatment, but when the two policemen were looking in a different direction a clerk asked him a second time and Wilson said yes. Crossen recalled that she feared trouble and said that she moved quickly to get a doctor to attend to the prisoner. She testified that she saw burns on Wilson's chest and went on to describe how Wilson's medical treatment had come to an end. According to Crossen, Officer Mulvaney pulled out his gun just as Wilson was about to be given a shot of novocaine. The doctor asked Mulvaney to put the gun away, and when Mulvaney refused, the doctor left the room, leaving the policeman and the prisoner alone. Shortly thereafter, Wilson refused further treatment.
Dr. John Raba, then medical director of the hospital that serves Cook County Jail, also stuck his neck out. Upon examining Wilson at the jail and hearing his story of having received electric shock, Raba wrote a letter to then police superintendent Richard Brzeczek listing Wilson's injuries, mentioning the allegation that he had been shocked, and urging Brzeczek to conduct a "thorough investigation." Brzeczek sent a copy of the letter to state's attorney Richard Daley indicating that he was inclined to investigate every allegation of police misconduct but was wary of jeopardizing the case against Wilson. He asked for Daley's advice on how to proceed. Daley did not answer the letter.
Others also played pivotal and thankless roles. Dale Coventry, Wilson's public defender, had the foresight to have the crucial photos taken of Wilson's thigh, chest, and ears, and he and his colleague Alan Sincox helped pin down the details in the Melvin Jones story. OPS's David Fogel, acting entirely on his own, reopened the Wilson investigation, and investigators Sanders and Goldston wrote truly revolutionary reports. Fogel's successor, Gayle Shines, who could have rejected their conclusions, instead praised their research. Private attorneys Daniel Reidy and June Ghezzi were hired as special prosecutors for the Police Board hearings and performed commendably. Citizens Alert, the police watchdog group, and the Task Force to Confront Police Violence did what they could to raise public awareness and media interest. Mostly, however, their call seemed to fall on deaf ears.
The Area Two police officer who wrote the anonymous letters to Wilson's attorneys was crucial in exposing the larger practice of torture and showed some courage in putting four communiques in the mail, copies of which have subsequently been examined by Area Two detectives trying to find the traitor in their midst. On the other hand, he never came forward publicly. Had the officer been willing to testify to the horrors that occurred at Area Two, other officers might have been inspired to commit similar acts of bravery, innocent men might have been freed from unjust incarceration, rotten policemen might have been expelled years ago, and millions of dollars of public funds might have been saved. Still, the anonymous cop showed far more courage than other Area Two employees who surely knew how the game was being played.
In agreeing to represent Wilson during his civil suit, the People's Law Office played almost a suicidally heroic role. There are not many law firms in this city that would agree to take up the cause of a man who, with no provocation whatsoever, shot two policemen dead. Three other firms had been assigned to represent Wilson but found ways out of the assignment, and Wilson had rejected a fourth firm before convincing the People's Law Office to take up his case. At one point between the two civil rights trials, attorneys Taylor, Haas, and Stainthorp were feeling so stretched financially by the case and so battered emotionally by the treatment they were getting in Judge Duff's courtroom that they held serious discussions about whether they should simply resign. In the end, they labored for nine years without a paycheck while the city steadily paid more than $850,000 to William Kunkle and other private attorneys who defended the police, and spent hundreds of thousands of dollars more on its own defense.
The city's stance on the case has undergone a remarkable evolution. On June 29, 1988, while the city was still a defendant in Wilson's civil rights suit, the corporation cousel stated that Burge, Yucaitis, and O'Hara had been acting within the scope of their employment, meaning that in arresting and processing Wilson they were acting as city employees. On March 28, 1994, the city reversed itself, arguing that what Burge and his comrades had done to Wilson was not within the scope of their employment and that therefore any judgment rendered against those officers would not be paid by the city but would come from the pockets of the policemen. The change in position certainly seemed fickle; the officers had lost their case before the Police Board at that point, and if the same evidence was going to be presented in federal court it seemed quite possible that they would lose there also. By ditching the defendants, the city could save itself hundreds of thousands of dollars. Furthermore, it could ensure that in the future no rational attorney would ever take on a client who alleged that he had been tortured by a Chicago policeman, as that attorney would know that if he won the case he would only be able to tap the pockets of the accused cop, and those pockets would in all likelihood be fairly shallow. (At Wilson's first civil rights trial, Burge testified that his debts surpassed his assets by $17,000.)
Before Judge Gettleman, the corporation counsel offered what seems at first glance to be a straightforward, even noble explanation for the city's about-face. In their response to Andrew Wilson's motion for summary judgment, corporation counsel Susan Sher and her colleagues Michael Forti and Charles Levesque stated that the city's position in 1988 had been "legitimately predicated on the belief" that Wilson's allegations were false and that Burge and his comrades had not employed excessive force. The attorneys argued that the city had modified its position "not in pursuit of any benefit, or to obtain an advantage in this litigation, but rather as a necessary consequence of its pursuit of the truth. Throughout the nine-year history of this case, many new and additional facts that were unknown to the City in 1988 came to light during the two full trials held in this matter. The surfacing of new facts required the City to alter its position regarding scope of employment."
In a recent interview, chief assistant corporation counsel Forti claimed that the reason the city didn't make its change in position known before March 28, 1994, was that until that point no one had asked them if they had changed their position.
Before Judge Gettleman, the city's attorneys further argued that the officers had acted in an "outrageous manner and utilized methods far beyond those sanctioned, permitted, and expected by the Police Department. Consequently, the conduct of defendant officers moved beyond the confines of the scope of their employment....The 'instrumentalities' by which the defendants tortured plaintiff also illustrate that defendant officers were not in the scope of their employment. Plaintiff has failed to furnish any evidence to suggest that the instruments used by the officers to shock him--the black box device and the modified curling iron--were furnished by the City....Moreover the radiator at Area Two Headquarters, which was used
to inflict second-degree burns on plaintiff,
was clearly not provided to defendant officers for the purposes of burning plaintiff....Finally, defendant Burge's actions in burning plaintiff with the radiator, shocking him with the modified curling iron and other devices, and beating him 'constitute the crime of battery under Illinois law' and further indicate that the defendants were outside the scope of their employment."
Sher, Forti, and Levesque argued that the torturers were acting "for their own purposes of revenge and retribution," that Burge was "motivated by the prospect of personnel advancement in attempting to quickly resolve the murders of Officers Fahey and O'Brien," that Burge's actions "also stemmed from a sadistic pleasure in watching plaintiff suffer."
The city's lawyers wrote, "When police officers deviate from their investigation and cruelly torture a suspect and deny him necessary medical assistance, they are no longer serving the City's business....Torture of arrestees cannot, as a matter of sound public policy and logic, be found to fall within the scope of Chicago police officers. Sound public policy is directed to prohibiting and preventing police officers from exceeding their authority and abusing citizens. A holding that outrageous conduct, such as that engaged in by defendant officers, is within the scope of employment would undermine the City's efforts to prevent the abuse of police power and authority. The City seeks to underscore its opposition to the abuse of police power by placing the financial costs of such abuses directly on the officers....A holding that outrageous conduct lies within the scope of employment would not punish the culprits but rather wholly innocent taxpayers by raiding the public fisc to pay judgments arising from such outrageous conduct."
What made the argument particularly galling was its portrait of a client concerned about electric shock and police misconduct. The city has disciplined none of the police officers accused in the other Area Two cases of shock, suffocation, beating, and other abuse, even when those officers have been caught lying under oath. The city attorneys' "scope of employment" argument also rankled anyone familiar with the city's historical stance in police brutality cases. Despite the city's long history of excessive-force cases, Forti can cite no others in which the argument has been invoked when an on-duty policeman committed brutal acts.
In its reply to the city's argument, the People's Law Office provided ten examples of "outrageous conduct" that the city had agreed was within the scope of a policeman's employment. Of the ten examples, the largest settlement had been paid in the case of Rafael Acosta, a 43-year-old hotel waiter who allegedly made an illegal turn on May 18, 1981. Police officers followed him home after that infraction. Acosta's wife, two children, and a neighbor alleged that the officers first beat Acosta and then threw him down a 17-step staircase, causing permanent brain damage. Alderman Edward Burke, a former police officer, called the incident "the most egregious case of police brutality I've ever seen." In that case, the city attempted no "instrumentalities" defense ("We didn't provide the staircase, so we aren't going to pay"), nor did they argue that the officers had acted outside the scope of their employment. Instead, the corporation counsel negotiated a settlement of $3.5 million.
When asked about such cases in a recent interview, Forti argued that they were irrelevant, that those decisions were made by previous administrations, and that this administration had to wait for precisely the right case in order to make the "beyond the scope" argument.
On close examination, the city's claim that it lacked information in June 1988 on which to base a denial also loses its thin veneer of respectability. If the city lacked information, it was its own fault. Had there been a serious investigation of Wilson's charges by OPS the first time around, it would certainly have uncovered considerable medical evidence, the photographs of the burns, the photographs of Wilson's ears, and the transcript of the hearing at which Melvin Jones had described an electroshock session that occurred nine days before Wilson's. Furthermore, in June 1988, when the city first stated that the police had been acting within the scope of their employment, the Illinois Supreme Court had already reached the "inescapable conclusion" that Wilson had sustained serious injury in police custody. If the corporation counsel believed that the infliction of serious injury was not within the scope of the officer's employment, it had ample opportunity to say so at that time.
By March 1989, the city had been provided with Melvin Jones's transcript and had been notified of numerous other alleged torture victims. Wilson attorney Flint Taylor argues that by the summer of 1989, before Wilson's second civil rights trial began, "nearly every piece of evidence which subsequently formed the basis of the city's case before the Police Board was already specifically known in detail by the city." Again at that point the city could have changed its mind about the scope of employment. It did not. The city formally modified its position almost five years later, more than three years after it brought misconduct charges against Burge, Yucaitis, and O'Hara before the Police Board.
The city's claim that it modified its position as a result of its pursuit of the truth is pure fancy. The city has not pursued the truth--the truth has pursued the city. If the city were interested in pursuing the truth, it would have acted upon receipt of the Goldston and Sanders reports; instead, it sat on the reports for more than a year and then the corporation counsel fought hard to prevent public access to them. If the city were interested in pursuing the truth, it would have pursued a raft of Area Two cases in which torture has been alleged, some of which hinged on confessions made by men who may well be innocent. If the city were interested in pursuing the truth, the corporation counsel would not now be fighting in federal court to keep other OPS reports about possible abuse and perjury at Area Two from reaching the public.
Forti says he doesn't know the facts of the other Area Two cases. He wants to confine all discussion to what the corporation counsel's office is charged with doing in the Wilson case, and in his mind his arguments are logical, consistent with the law, and the best course for city taxpayers. The fact that the corporation counsel's outrage is expressed in this, the single case of electric shock that threatens the city's wallet, is merely indicative that the office is doing its job in this single case--he is familiar with no others. He expresses with great sincerity the belief that by removing the cloak of indemnification from someone like Burge, the corporation counsel sends a message to city policemen that their own assets are at stake; and with their own assets at stake, Forti argues, policemen are less likely to engage in torture. But were such a rule in place back in 1989, the very man he denounces with such vehemence--Commander Burge--would probably still be one of the highest-ranking policemen in the city. Because even the attorneys from the People's Law Office, driven more by missionary and political zeal than by a desire to make large sums of money, would likely have had second thoughts about engaging in a nine-year legal battle against a man whose net worth was less than zero. Even missionaries have to eat.
In support of its scope-of-employment argument before Judge Gettleman, the city cited several cases in which policemen had done something dastardly and their employers had not been held liable for the act. But Judge Gettleman lost no time in pointing out the clear difference between those citations and the Wilson case: the other cases involved policemen who had committed their transgressions while off duty and who had performed some act that served their own ends alone (in one case, sexual assault), while in Wilson's case, even if the officers were motivated by revenge they were serving the needs of their employer by eliciting a confession. "The Officers were in uniform, at the police station, and conducting an official police investigation when the beatings occurred," the judge wrote. "Despite any ulterior motives on the part of the Officers, their actions brought about the results expected by the City--the arrest and confession of plaintiff." Though their methods of interrogation were "grossly inappropriate," the judge said, their job was to interrogate.
The city has appealed Gettleman's ruling, and its appeal raises scope-of-employment and certain jurisdictional issues. The brief contains more of the language of horror and outrage that the city's lawyers have adopted since their change of mind on the scope-of-employment question. The reader should recall that it was only the Police Board decision that established Burge's guilt, and that the board never used the word torture, never directly said Burge shocked Wilson, and never said Burge personally burned Wilson. Yet the city apparently has come to believe that the more extreme Burge's behavior is made to sound, the more likely it is to be judged as beyond the scope of employment. The result is that today the corporation counsel proclaims without hesitation that Burge shocked and burned and tortured. In the city's appeal, Burge's acts have become "savage torture" and "an exceedingly marked and unusual deviation."
Oddly, Wilson's attorneys might well respond with the argument that although the evidence supports a conclusion that Burge shocked and burned, the Gettleman judgment is not based on that conclusion, but only on the Police Board's statement that Burge "did...strike and/or kick and/or otherwise physically abuse or maltreat" Wilson. Thus the city, which for years contended that no torture occurred, now argues with vehemence that it did, though their own triers of fact never said so, while Wilson's attorneys, who have always argued that their client was tortured, may find support in a judgment that never uses the word.
As for the city's claim that Burge's acts were "an exceedingly marked and unusual deviation," that is sadly hard to support. The corporation counsel would do well to recall that investigator Goldston found that abuse by Area Two detectives was "systematic." At Area Two, for many years, such behavior may have been deviant but it was not unusual.
John Conroy's E-mail address is JConroy@aol.com.
Art accompanying story in printed newspaper (not available in this archive): photographs by Randy Tunnell: Flint Taylor, Jeffrey AHaas, John Stainthorp; Andrew Wilson;.