By John Conroy
Madison Hobley is on death row because he had an affair.
At age 25, Hobley, an installer of medical equipment and a religious man, gave in to his temptation to sleep with another woman. It proved to be a short-lived relationship. He met his lover at a party in mid-October 1986. On November 12 he rented her an apartment at 1121-23 E. 82nd St. Hobley later explained that he did so because his girlfriend had no credit, but the landlord was under the impression that Hobley would be living there too. Hobley's wife, Anita, soon discovered that her husband had strayed, and she told him to leave and not come back until the affair was over. Hobley moved into the 82nd Street apartment but moved out four days later, and it was a bitter parting. Hobley returned to his wife and year-old son, and the couple set about trying to repair their relationship.
In December, Hobley's lover vacated the 82nd Street apartment, unable to afford it on her own. Hobley later testified that she was angry, that as a result of the coming and going she was out $590. During the week before Christmas the Hobleys moved into the unit, which was far nicer than where they had been living. Their new home was in a long, narrow 22-unit building with a garden-level basement and three upper floors. The Hobleys lived on the top floor in apartment 301, which was just off the front stairway.
On the night of January 6, 1987, the building caught fire. This is Hobley's version of what happened, based on court testimony.
He said he was awakened by what he initially thought was his watch alarm. After a short time he realized it was a smoke alarm, and he moved quickly to investigate. The Hobleys' apartment was normally so warm that they kept a window open even though it was January, and Hobley slept in his briefs. He threw on a pair of gym shorts and one of his wife's T-shirts. When he opened the apartment door he saw and smelled smoke. He told his wife there was a fire and to get the baby, and then he went to investigate, leaving his front door open. He thought the fire might be coming from apartment 304 because the smoke was low in the hallway outside that apartment. He walked down the hall to knock on the door and then heard a popping noise. He turned around to see that the fire had come up the stairwell and the doorway to his apartment was in flames. He pounded on the wall and yelled to his wife to shut the door and go to the window, and then he ran down the back stairs and out the back door.
Outside, he stood below his bedroom window. He could see smoke coming out the open window, but never saw his wife or baby. He ran to the front of the building to get help from some people gathered there. A man gave him some oversize pants to wear. After he put the pants on, fire trucks drove past. Hobley, a good athlete, gave chase but failed to catch them. He ran back to the building and saw Althea Tucker, who lived beneath the Hobleys, standing in the window of apartment 203. Althea's brother Curtis was outside, calling for her to throw her children down. Althea later said that she dropped her infant son and that Hobley and her brother caught him. Hobley, she said, was wearing a T-shirt and pants but no shoes and no jacket.
Firemen arrived. Hobley could see flames coming out of his bedroom window. He went to the front of the building to get help. A woman gave him a coat. He saw Debra Bedford, who lived across the hall from the Hobleys in apartment 302. Bedford had awakened to a smoke alarm, but hadn't opened her front door because it was hot to the touch. She sat in her window for 10 to 15 minutes, her apartment filling with heat and smoke, until finally firemen arrived and rescued her with a ladder. She later testified that Hobley was upset, that he said he thought his wife and baby were still in the apartment but might have come out behind him down the back stairs. She said that Hobley was wearing a short jacket, like a peacoat, and pants, but no shoes. The coat, produced at Hobley's trial, proved to have its buttons on the wearer's left—it was indeed a woman's coat.
At about this time Hobley went into the home of Georgia White, who lived in the house next door to the building. He called his mother, asking her to bring clothes for the whole family. Mrs. White gave him a pair of gym shoes to wear. Hobley went back outside and asked a fireman to save his wife and baby. The fireman said that some people had been rescued from the third floor and he should go around back. A policeman there told him to check the trauma units in front, but all was confusion there.
Hobley's mother arrived. She later testified that her son was shaking and crying, and she took him home to calm him down. Hobley's sister Robin called paramedics because her brother was "hysterical," and at Saint Bernard Hospital she asked that he be given a sedative. The doctors indicated that tests would have to be performed first, and she took her brother home rather than have him sit around and wait for them.
Hobley's wife and son never escaped their apartment. They were among seven people who died in the fire. Police and fire investigators determined that the fire had been started with an accelerant, and detectives from the Area Two Violent Crimes unit began interviewing tenants. Detectives Robert Dwyer, James Lotito, and Daniel McWeeney arrived at Hobley's mother's home at about 9 AM. The detectives claim that Hobley spontaneously offered them the clothes he had been wearing at the fire, but Hobley's mother testified that the detectives asked for them and that she provided them with everything but the peacoat, which she forgot about and handed over to Hobley's public defender two days later. The detectives asked Hobley if he knew anyone who might have had a motivation to torch the building and how he'd been fortunate enough to escape the fire that had killed his wife and son. He mentioned his former lover, saying she had sworn to get back at him.
The detectives took Hobley to Area Two headquarters. He agreed to submit to a lie detector test, and arson investigators took him to police headquarters at 11th and State for that purpose. In the meantime detectives Dwyer, Lotito, and McWeeney tried to locate Hobley's girlfriend. "We spoke to her first on the telephone at her employment," Dwyer later testified, "and she indicated to us that she would be glad to meet us, that she was soon to be on a lunch break and that is in fact when we located her and interviewed her." According to Dwyer the woman was brought to 11th and State and interviewed for about a half hour. In his police report Dwyer noted that she said Hobley had expressed a desire to reconcile with her and had even suggested that she move in with his wife and son. She denied having anything to do with the fire.
At some point that afternoon, Hobley allegedly confessed, first to a polygraph officer and then to Dwyer, Lotito, and McWeeney. According to the police report, Hobley said he'd started the fire because he wanted to leave his wife and be with his girlfriend. According to the detectives, Hobley said that he'd gone to a gas station with a can, purchased gasoline, poured it in the stairwell and in the hallway outside his apartment, lit it with a match, and pitched the can down the second-floor hallway.
In response to this information, Area Two Violent Crimes detective John Paladino was sent to the building to look for the can. He got there about 5 PM. In the 13 hours since the start of the fire, many police and fire personnel had been through the building, but none had seen a can. Paladino found one relatively quickly, under a sink in apartment 206.
It was a great coup for the Area Two Violent Crimes unit. They had walked onto the scene of a horrendous crime at two in the morning. With 22 sets of tenants, an owner, a building manager, and all the suspicious friends and associates that those people might have had, the avenues of inquiry had been innumerable. And yet the Area Two detectives had found their man and the key piece of evidence before the day was out.
Hobley was charged with seven counts of murder, one count of arson, and seven counts of aggravated arson.
The case came to trial on July 18, 1990. Prosecutors opened with various accounts of the horror of the fire. One tenant testified that she heard a mother screaming "Someone catch my baby!" just before the woman dropped the child out the window. The witness caught the infant girl by a leg. Another tenant told how she climbed out her third-floor window and clung to the roof until she could do so no more, whereupon she fell, landing on a car windshield, suffering severe injuries.
Andre Council was the first witness to finger Hobley. Council testified that he had stopped by a Union 76 gas station at 83rd and Cottage Grove on the night of the fire. Council said he was visiting Kenneth Stewart, who was working at the station, and sometime after midnight a man walked up and bought a dollar's worth of gasoline, which he pumped into what looked like a one-gallon gas can. Council pointed to Hobley as the man who had bought the gas. He said that Hobley had been wearing a navy blue or black peacoat, a hat, and jeans at the time of purchase, and that he walked off in the direction of the building that later was torched. Council said that 30 to 45 minutes later fire trucks drove by, and as they were headed toward his house he left the station. When he got home he could see that the fire was a block away, and he walked to the fire scene. Council said he saw Hobley about two houses away from the burning building, wearing the same outfit he'd had on at the gas station. While watching television the next day, Council saw Hobley on a news report that identified him as a suspect in the fire, and Council then phoned the police to report what he knew.
Kenneth Stewart followed Council to the witness stand. He recalled that on the night of the fire a short man with a standard red-and-yellow one-gallon gas can had purchased a dollar's worth of gas. Stewart said that before the day ended he was brought in by police to view a lineup. After viewing five men through a one-way mirror, Stewart said he could not identify anyone as the purchaser. He was taken into the lineup room to get a better look, but even then he declined to identify anyone. The men in the lineup were told to ask for $1.50 worth of gasoline (though the man who came to the station had asked for a dollar's worth), and Stewart still declined to pick anyone out. Finally, the police asked if any of the men in the lineup could have been the man who bought the gas. Stewart said the short man in the lineup "favored" the man who purchased the gas, but he could not point to him with "any degree of certainty." The short man was Hobley.
At the trial, Stewart was certain one minute, uncertain the next. When prosecutor Paul Tsukuno asked Stewart to apply a percentage to his degree of "favor" that Hobley was the man who bought gas, Stewart said 99 percent. On cross-examination, Stewart said forthrightly that he could not identify Hobley at the lineup even after he'd finally picked him out. He said police had asked him to state his certainty on a scale of one to ten, and he'd replied, "I can't even tell you any degree of certainty."
A fire marshall testified that the damage sustained outside apartment 301 was evidence that an accelerant had been poured on the floor there, but he also acknowledged that if the door to 301 had been left open and a window inside the apartment was also open, fire would have been drawn to that location because fire seeks oxygen. Detective Virgil Mikus of the Bomb and Arson unit testified that a flammable liquid had been poured in front of apartment 301. He drew this conclusion from the burn pattern on the floor. Tests of the area revealed no traces of gasoline, but Mikus contended that water from the firemen's hoses could have washed it all away. Mikus's testimony, however, differed from his initial report. In his first report, written the day of the fire, he said that the fire had started on the stairwell and traveled up. At trial he said that the fire probably started at apartment 301.
Detectives Dwyer and Lotito testified about meeting Hobley, bringing him to the police station, and getting his confession. Detective Paladino said he had found the gas can under a sink in apartment 206, and the tenant of apartment 206 testified that although she had a gas can, the can Paladino found was not hers.
There were, however, certain problems with the detectives' testimony. Detective Paladino's discovery of the can seemed curious. Though the state believed it supported Hobley's confession, it seemed actually to raise questions about it. Hobley allegedly confessed to throwing the can down the second-floor hallway. Paladino found the can not in the hall but inside an apartment whose tenant said that her door onto the hallway was locked. No one explained how the can got from the hall into the locked apartment.
The detectives' treatment of Hobley's confession also seemed peculiar, particularly given the enormity of the crime at hand. Dwyer said he took notes of Hobley's confession but threw them out because they had gotten wet. Lotito's notes of the interview do exist, but they indicate that Hobley denied setting the fire, not that he had confessed to it. The first existing written account of the alleged confession is in a typewritten report dated January 31, 1987, 15 days after the fire.
When the defense presented its case, Hobley took the stand and said there never was a confession. He claimed the detectives had suffocated him with a plastic typewriter cover until he blacked out. He claimed that they also pushed in his Adam's apple with their thumbs, kicked him in the shins and in the groin, beat him about the stomach and chest, and placed handcuffs on his wrists so tightly that they caused considerable pain and left marks. In court and in an interview with an investigator from the Police Department's Office of Professional Standards, Hobley said that Dwyer called him a "skinny little nigger," and that Lotito also made racial remarks, including one comment about blacks favoring pork chops.
Photographs taken the day after Hobley allegedly received this treatment showed scrapes on his wrists and a bruise on his chest. At trial, Dwyer testified that the wrist wounds were self-inflicted, caused by Hobley pulling on his handcuffs. But Steven Stern, a lawyer who showed up late on the day of the fire to represent Hobley, testified that Hobley immediately told him that he had been beaten and bagged, and that he noticed injuries on Hobley's wrists.
Hobley's public defenders presented their own fire expert, John Campbell, a consulting engineer who had been involved in the field of fire and explosion since 1953 and who had once worked for NASA doing aircraft fire and explosion research. Campbell testified that gasoline could not have caused the damage outside apartment 301. That damage, Campbell said, was the result of the "chimney effect." Given the shape and structure of the stairway, Campbell said, it became a fireplace, flue, and chimney for the flames. "Fresh air would come in through at the lower level. It would burn in the hot, superheated gases which expand about three times that of the initial air volume, then force their way out the top and effectively mushroom out at the upper level," Campbell said. He said the flames at that point would be like those on a blowtorch. "The fire would go just out of the stairway and just shoot across the hall and hit the upper part of the wall which would include the upper part of that door [of apartment 301]."
Campbell testified that the heat from the burning wooden door and the radiant heat from the hot gases coming up the stairway would then ignite and destroy the floor covering outside the apartment, and those flames could ignite the wood underneath, and in a few minutes the plaster ceiling would be destroyed and the roof would burn. Campbell's theory was consistent with the absence of gasoline outside 301. Campbell argued that accelerant was poured only in the stairwell above the entrance to the building, and that the resultant path and intensity corresponded "exactly" with Hobley's description of events.
Campbell was attacked by prosecutors because he had drawn his conclusions from photographs and investigative reports, not from a site visit, not from interviews with fire personnel, tenants, and police. The state's attorneys also implied that Campbell's conclusions were hastily drawn, as he had been hired to review the case the day before he testified.
Hobley's clothes, however, seemed to speak clearly of his innocence. The state stipulated that it had tested Hobley's T-shirt, shorts, oversize pants, and gym shoes and could detect no traces of any identifiable accelerant. The flimsiness of this attire seemed to raise the question, "Would someone planning to burn down a building in the middle of winter not be a little more prepared for the weather?" Surely no one would have looked askance at a bathrobe, or a pair of shoes or slippers. Tenants Althea Tucker and Debra Bedford, who saw Hobley at different stages during the fire, seemed to contradict Andre Council's testimony about Hobley's attire. Council said that when Hobley came to the gas station he was wearing a peacoat, blue jeans, a hat, and shoes, and that he was wearing the same outfit a short time later at the scene of the fire. When Tucker saw Hobley, however, he was coatless, shoeless, and hatless, and Bedford, running into him some minutes later, said he had neither shoes nor hat.
The case went to the jury on the evening of August 1, 1990. The jury was made up of six women and six men, only one of them African-American, and their deliberations were described by Tribune reporter Barbara Brotman in an article published months after the trial was over ("The Verdict," December 30, 1990). (My account of what took place is based entirely on Brotman's story.) During jury selection, Hobley's public defenders had inexplicably not objected to the seating of Matthew Evans, a white suburban policeman, and he was elected foreman. Postmortem photographs of the victims were viewed for the first time. "They were like charcoal," one juror said. "Their skin was completely gone." Afterward, the jurors cast their first ballot. The six men voted to convict, and they were joined by Janice O'Neil, a 30-year-old cosmetics executive from Schaumburg. The five remaining women either voted to acquit or hadn't made up their minds. Two of the women believed Hobley had been abused by the police. Others were stunned by the men's matter-of-fact manner.
In the next hour and a half, two of the women changed their minds and were willing to say Hobley was guilty. The jury adjourned and spent the night in a hotel. In the morning a third woman also capitulated, reasoning that "there was no way that he could have gotten out of that apartment without being burned." One of the women who believed Hobley had been beaten also switched sides. Hobley had testified that when he left his apartment to investigate he did not feel moisture beneath his bare feet, and the woman believed the prosecution's theory that gasoline had been poured there, and thus that Hobley should have felt it.
One woman remained, and she held out for six hours. Nancy Crandall argued for acquittal, troubled that there was no consensus as to where the fire had started. Crandall believed that some of the other women had been intimidated into changing their minds, and she later said that she wanted to free other jurors to go against the majority. But finally she concluded that the fire was so intense on the third floor that it probably had been ignited there. She still believed that Hobley had been beaten, but she told Brotman, "I wasn't sure if he was beaten because he did it or because he didn't do it." Knowing Hobley was likely to get the death penalty, she nonetheless cast her vote with the others. Then she went to the bathroom and cried. "I said a prayer to God that I had made the right decision," Crandall said. "God help me, and God help him."
The jurors delivered their verdict. All six women were crying, though O'Neil, the cosmetics saleswoman, later said she was crying for the victims, whose portraits had been displayed in the front of the courtroom during the prosecution's closing arguments.
The trial then entered the death penalty phase, during which the prosecution presents witnesses in aggravation and the defense presents witnesses in mitigation. The state's attorney offered evidence that in the wake of the Hobleys' reconciliation, the couple had had a fierce argument that resulted in Anita staying briefly at a friend's apartment, and the friend contended that Hobley had thrown a brick through her window and threatened to set her apartment on fire if he did not get to see his wife. Brotman reported that Hobley's public defenders argued that the police report on the incident "had been doctored."
Hobley's lawyers then presented their mitigation witnesses. Most defendants in capital cases produce four or five character witnesses. Hobley produced 27. Family members testified that he had supported his mother and sisters from a young age after his father left home. Former high school teachers testified that he had been a good student who never caused problems in class. His former coaches said he was a fine athlete who played unselfishly. Coworkers testified that Hobley, an installer of medical equipment in the homes of the elderly, was a quiet man who seemed to enjoy helping people, and they said that some of the senior citizens for whom he worked were praying for him. Hobley had never had a serious run-in with the police before the fire. Employees of Cook County Jail, where Hobley had been awaiting trial, testified that although 85 to 90 percent of the inmates had some gang affiliation, Hobley did not. They described him as a respectful person who did not give the guards any trouble, and a Presbyterian pastor testified that Hobley regularly attended Bible study classes in the jail and that he seemed to have sincere religious beliefs.
The jury's first ballot went seven to five in favor of execution. Surprisingly, Nancy Crandall, who had been the last to vote to convict, was among the first to vote to execute, while policeman Matthew Evans, her nemesis during the guilt phase, voted against the death penalty. Also opposed was the saleswoman O'Neil, who alone among the women had voted to convict on the first ballot during the guilt deliberations. After the first ballot, a juror who worked as a security guard argued that they had a moral obligation to kill Hobley, that the relatives of the victims were counting on them, and that the jury should show solidarity with those who had lost loved ones. One by one the opponents caved in until Carmen Sanchez, a computer programmer, was the last holdout. She told Brotman that she thought of the photos of the victims when they were living, signed the verdict form, and then went to the bathroom and threw up.
The debate had taken only two hours.
What the jury did not know, and what has been discovered in the ten years since their departure from the case, would seem to be enough to make even the hard-hearted among them reconsider. There are five components to the case against Hobley: the Kenneth Stewart identification, the Andre Council identification, Hobley's alleged confession, the gas can that allegedly supports the confession, and the evidence of Hobley's affair, which provided the prosecution with a motive. Hobley admitted the affair during his very first conversation with police. The other four elements have been undermined considerably in the last decade, thanks in large part to the work of the private attorneys who have handled his case on appeal—Kurt Feuer, Jon Stromsta, and Kelly Elvin of Ross & Hardies, and Andrea Lyon, a legendary Chicago defense lawyer now on the law faculty at the University of Michigan, who joined the team in 1996.
Kenneth Stewart's identification of Hobley, made with no degree of certainty at the lineup and moving up to 99 percent at trial, became even more questionable after an investigator working for Hobley visited him in 1995. In a notarized affidavit, Stewart said that the lineup was made up of five men, with Hobley the only short man among them. He said he felt pressured to make a positive identification, and so finally said that the short individual looked somewhat like the man who had bought the gas. "However, if any of the other four Black men in the lineup had been closer to that person's height," Stewart said, "it would have been very difficult for me to pick out that person." He indicated that his much more certain identification at trial was the result of his again feeling pressured by a prosecutor, and he went on to say that he had never been positively sure that Hobley was the person who bought a dollar's worth of gas that night.
Andre Council's identification was troubling for reasons other than the fact that he saw Hobley in different clothes than other witnesses did. He seemed to have changed his account between the time he first told it to police and the time he told it on the witness stand. On the witness stand he said he saw fire trucks go past the gas station and then went home and on to the fire scene, but the police report has him saying that he went home directly after Hobley bought the gas, and that he was home for 30 to 45 minutes before he heard the fire trucks arriving.
This discrepancy takes on some significance in light of the fact that on March 17, 1987, two months after Hobley's building burned, Council was arrested for arson.
Council's arrest came in the wake of a 1 AM fire at an apartment building at 8216 S. Dobson, about a block from Hobley's apartment. Council lived at 8212 S. Dobson. The fire was started on the basement steps and spread directly to the top floor and ceiling. According to the arresting officers' report, Council had been seen in the alley about the time the fire was started. The Fifth District officers who made the arrest also noted that there'd been an arson at 8204 S. Dobson one day earlier, and their report indicates that Council was "named by citizens as possible offender."
On the Dobson Avenue fires, however, Council was released without charge five hours after being taken into custody. The Bomb and Arson detective assigned to the case noted that the "investigation failed to develop any evidence that could link [Council] to the fire at this time." At Hobley's trial, Judge Christy Berkos refused to allow Hobley's public defender to question Council about those two arsons becuase he had not been convicted of them.
Two weeks after Council's release, on March 30, 1987, he turned himself in to answer to charges of criminal damage to property, the result of accusations that he had smashed a car window with a tire iron on March 1. Normally a suspect is held in a police lockup until the results of a fingerprint check come back, a period that can last anywhere from 3 to 12 hours. The paperwork filed by Area Two Property Crimes detectives notes that after his arrest, Council was released on a personal recognizance bond (also known as an I-bond) "per orders of Lt. Jon Burge, Cmdr of Bomb & Arson Unit." Commander Burge had been head of the Bomb and Arson unit for only about four months at the time of the Hobley fire. Before assuming that post, he had served as commander of the Area Two Violent Crimes unit, supervising the work of Detectives Dwyer, Lotito, and McWeeney, among many others. The criminal damage to property paperwork also carries the notation "Results of fingerprint check waived . . . (as per request—Cmdr. Jon Burge, B/A Unit)."
It is extremely rare for the commander of one unit to directly intercede in an arrest made by another unit on behalf of the man charged with the crime. "I've never heard this one before," one veteran Chicago police detective told the Reader. "I would have been extremely surprised to have received that request from a high-ranking commander, and even more surprised to get it from a commander who wasn't from my unit."
According to the detective, getting a fingerprint check would be standard procedure for anyone arrested, a step necessary to determine whether the suspect has other outstanding warrants and if the accused is indeed the person that he or she claims to be.
"Waiving the [fingerprint test] results puts this in a different dimension," the detective said. "Perhaps the subject had an active warrant that they did not want brought up and have him incarcerated for....But then Burge walked on water. He could do whatever the fuck he felt like without ever answering for it."
The interference of Bomb and Arson commander Burge in a Property Crimes case raises the question of whether he might do the same in an arson case, specifically in the cases of the Dobson Avenue fires.
Burge's intercession in the case of the smashed car window was only recently discovered by Hobley's lawyers. Documents pertaining to that incident were not turned over to Hobley's public defenders prior to trial. This seems to be a violation of the Brady rule, named for the U.S. Supreme Court decision in Brady v. Maryland, which requires prosecutors to disclose exculpatory evidence. In their most recent petition for postconviction relief, Hobley's attorneys argue that Council's testimony would have been impeached at trial because the documents imply that he "received consideration from the prosecutor's office and the Chicago Police Department in exchange for his agreement to testify at Madison Hobley's trial."
The third component of the state's case—Hobley's alleged confession—could cause the prosecution great problems should he someday get a new trial. Aside from the fact that Hobley neither wrote nor signed it, that it was not tape-recorded, that no state's attorney or court reporter was present, and that the only copy, in Detective Dwyer's hand, was dispatched to the garbage can, the confession is tainted simply because of the men who took it.
When Hobley was tried in August 1990, it was not commonly recognized, as it is today, that during the 1970s and 1980s a group of Area Two Violent Crimes detectives engaged in torture on a fairly regular basis. Attorneys from the People's Law Office were the first to recognize the pattern and the potential extent of the practice. They represented Andrew Wilson, a convicted cop killer, in a civil suit in 1989. In the wake of his arrest Wilson claimed that he'd been suffocated with a plastic bag, burned against a radiator, and given electric shock on his ears, nose, and genitals, all at the hands of Area Two Violent Crimes commander Jon Burge and his detectives. As Wilson's trial proceeded, his attorneys began to receive anonymous letters from within the police department indicating that Wilson was not the first to have been given such treatment and suggesting that the lawyers might want to speak to Melvin Jones, another victim, then in Cook County Jail. Jones verified that he had been given the electric shock treatment, and through Jones and his former attorney the PLO found other victims. Over the last ten years the PLO has compiled a list of more than 60 people who claim to have been tortured at Area Two. No one in any position of authority has ever made a systematic attempt to find the total number of victims.
When Hobley went to trial ten years ago, however, the PLO's ongoing research was not widely known, nor did it carry much credibility. In January 1990 the Reader reported some of what the PLO had discovered, naming a few victims and making it plain that the torture had been extreme, including electric shock, burning, suffocation, and standing on a man's testicles (the story "House of Screams," January 26, 1990, is posted on the Web at www.chicagoreader.com/ torture/index.html). None of the city's mainstream media picked up on the story. However, Office of Professional Standards chief administrator David Fogel did. In March 1990 he ordered two investigators to examine the Area Two allegations. They would ultimately conclude that abuse had been "systematic"; that it had included "planned torture"; that the violence against suspects had taken place over more than a decade; that command personnel had known what was going on and had done nothing to stop it; and that Commander Burge had used an electric shock device on Andrew Wilson. Those OPS investigations led to Police Board hearings that resulted in Burge being thrown off the force in 1993, but when Hobley went to trial in August 1990, the OPS investigators were still working on their pivotal reports, and those reports, suppressed by the city, were not released until U.S. District Court judge Milton Shadur ordered the city to make them public in February 1992.
Today, attorneys at Schiff Hardin & Waite—who represent death row inmate Stanley Howard—and the PLO have computerized data banks matching Area Two perpetrators, techniques, and victims. Presented with someone who claims abuse at the hands of, for example, detectives Dwyer, Lotito, or McWeeney, they can print out the cases each was involved in and the techniques that were allegedly deployed. In their postconviction petition, Hobley's current attorneys submitted a list of 13 people who alleged brutal treatment at the hands of detectives Dwyer, Lotito, McWeeney, or Paladino, among them Melvin Jones and also Gregory Banks, Darrell Cannon, Philip Adkins, Stanley Howard, and Aaron Patterson. (Stories detailing these now infamous torture cases are posted on the Reader's Web site as well.)
When Hobley was charged, those data banks did not exist. By sheer coincidence, however, Hobley's public defenders knew of the case of Stanley Howard, whose accusations about his treatment by Lotito, Dwyer, McWeeney, and two other Area Two detectives were remarkably similar to the allegations made by Hobley. Both Hobley and Howard say that they were choked, beaten about their midsections while simultaneously being suffocated with a typewriter cover, and kicked in the legs, and that their handcuffs were applied so as to cut into their wrists. Howard says he was beaten about the face and suffered a bloody nose, but that the officer administering this treatment was told by Sergeant John Byrne to "lay off the head." Denying that any brutality took place, Area Two detectives said that their suspect confessed voluntarily to murder. The judge gave Howard's claim no credence, and he was convicted and sentenced to death.
Strangely, the striking similarities between Howard's allegations and Hobley's moved Judge Berkos not to certainty but to doubt. At a hearing on a motion to suppress Hobley's confession, the judge speculated that Howard's story could have somehow reached Hobley in the years between their two cases, though there was no evidence that the two had anything to do with each other (Howard had a lengthy felony record, including rape, home invasion, and armed robbery, while Hobley had no record at all). Saying that Howard's reputation made his claims suspect, that there was "no indication of reliability or truthfulness" in Howard's claim, and that the case was "entirely too remote," as 38 months separated Howard's alleged mistreatment from Hobley's, Berkos refused to allow Howard's story to be presented at trial. His decision was upheld by the Illinois Supreme Court. The judges of the state's highest court have yet to acknowledge that torture was common at Area Two, though they have repeatedly seen the same allegations against the same group of policemen in the same police station. What U.S. District Court judge Milton Shadur accepts as "common knowledge," the judges of the Illinois Supreme Court continue to deny.
Nonetheless, if Hobley were to get a new trial, a prosecutor could feel no glee in working with Dwyer, Lotito, and McWeeney. Howard's lawyers at Schiff Hardin & Waite have developed strong medical evidence in support of their client's claims and have found a witness who saw a detective leave Howard's interrogation holding a typewriter cover. Furthermore, an Office of Professional Standards investigator has concluded that it was the detectives, not Howard, who were lying. Howard's case has been remanded back to the trial level so that a judge can hear the convict's claims of torture in greater detail. If Howard's claims are found credible by one Criminal Courts judge, it will be much harder for a judge in Hobley's case to dismiss them simply because they are "remote."
And at a new trial, the credibility of Detectives Dwyer, Lotito, and McWeeney would likely come under attack from another quarter as well. Hobley's girlfriend—whom the prosecution claimed they could not find at trial, and whom his public defenders made no attempt to locate—has been found by Hobley's current legal team. She has signed an affidavit detailing not the cooperative half-hour lunch break conversation portrayed in the detectives' report but an abusive session that lasted 12 hours.
In her affidavit, the woman said that on the morning of the fire she received a call from a police officer who said he was standing in the lobby of the building where she worked. The officer asked her to come down to talk about Madison Hobley. When she came to the lobby, the police asked her to go to police headquarters at 11th and State to answer questions. When she said she could not simply walk out of her job, the officers allegedly threatened to go up to her office and embarrass her.
Her affidavit claims that at police headquarters she was taken to an interrogation room and the officers then asked if she had ever played the game 52 pickup, whereupon they began to bombard her with photographs of the burn victims. "They then started calling me a 'bitch' and a 'ho' and stating that I took part in setting the fire at the apartment building," she said. She was handcuffed to a ring in the wall and was told that a person behind the tinted window had seen her at the fire. "I broke down and cried. They made me take several lie detector tests, during which the police officers were calling me a liar....They held me at the police station at 11th and State from about noon to midnight."
The woman ended her affidavit by saying she was willing to testify at any hearing or trial. Should she someday be called to the stand, she might have little sympathy for her former lover but even less desire to help detectives who allegedly handcuffed her to a wall and addressed her as a bitch and a whore.
The last component of the state's case against Hobley is the gas can that the prosecution contends supports his confession. At trial, assistant state's attorneys Paul Tsukuno and George Velcich argued that when Hobley confessed to the crime, he said that he had pitched the can down the second-floor hallway. As the can was found on the second floor, the prosecution contends that the confession must be a true accounting of events.
And yet it might equally be argued that the can contradicts the prosecution's evidence. The can produced at trial, which was labeled People's Exhibit 8, was a two-gallon can. Andre Council and Kenneth Stewart each said that he believed the man at the gas station had filled a one-gallon can. As Council and Stewart had worked at gas stations, it might be assumed that they knew a one-gallon can from a two-gallon can, and there was no doubt that they got a close look, as both testified that the can was filled just a few feet from where they stood.
People's Exhibit 8 was troubling for other reasons. If Hobley threw it down the hall, how did it get inside apartment 206, the door of which was locked at the start of the fire? Firemen eventually smashed in the door, as they did doors throughout the building to make certain that no one was left inside. None of the firefighters ever claimed to have kicked a can into an apartment. Based on his observations of the can and crime scene photographs, fire expert John Campbell concluded that there was no way that the two-gallon can could have been outside the door of apartment 206 or anywhere in the hallway leading to that apartment—the fire and smoke were too intense to leave the can in such fine condition. (Judge Berkos, however, decided those conclusions were too speculative, and barred Hobley's attorneys from pursuing that line of questioning before the jury.)
At trial, the state argued that Hobley had "chosen not to leave his fingerprints anywhere on the can," as if he had carefully wiped it clean so it could not be tied to him.
Hobley's attorneys remained suspicious of the can, and in a deposition taken on February 25, 1999, prosecutor Velcich, now in private practice, made a startling statement. He said three times that the can presented at the trial was not the can used in the arson. This was a stunning admission, casually delivered. It meant that the prosecution had openly displayed a murder weapon that had nothing to do with the murder. Three months after giving his deposition, Velcich wrote a letter saying that he had made a mistake, that his memory had lapsed in the eight years since the trial, that he had recently reviewed the trial transcript and found that he and coprosecutor Tsukuno had indeed argued that—to quote the letter—the can "could have been utilized to commit the crimes charged."
Hobley's attorneys argue that the can used at trial was planted. In support of this belief, they offer an affidavit from Donnell McKinley, who was arrested for arson a few weeks before Hobley's fire. McKinley pleaded guilty to setting a fire at 8308 S. Paulina on December 16, 1986, and thereafter served 18 months in a juvenile detention center. In his affidavit, he states that in starting the fire, he used a scratched and dented two-gallon gas can that he had borrowed from a friend who had a neighborhood lawn-mowing business, and the can was confiscated by police when they arrested him. The Bomb and Arson detective who recovered McKinley's can was Virgil Mikus, who later investigated the Hobley case and testified against him at trial. In McKinley's affidavit, he says he recognizes the scratched-up can used in Hobley's trial as the one formerly used in his neighbor's lawn-mowing business.
In a deposition given April 14, 1999, Mikus, now retired, said he could see no connection between the gas can taken from McKinley and the one attributed to Hobley. The state's attorney's office argues that McKinley's identification of the container is not only erroneous but preposterous.
The competing claims about the can are being heard by Circuit Court judge Dennis Porter, who inherited Hobley's case after Judge Berkos retired. Thus far, Porter has shown no inclination to do anything to disrupt Hobley's steady progress toward an early death. Porter has been unmoved by the claims of torture at Area Two. In a ruling handed down on July 1, 1996, he dismissed the accounts of 12 victims who alleged they had been tortured by the same group of detectives who interrogated Hobley. Most of the cases were "unduly remote," he said, meaning they did not occur within three years of Hobley's, and the others should have been discovered by Hobley's trial attorneys and therefore were barred from consideration at the postconviction stage of this particular appeal. Furthermore, Porter wrote, they would not have changed the result at trial.
The judge was also unmoved by Hobley's arguments about various alleged Brady violations having to do with the gas can or gas cans found at the fire scene. Later, the Illinois Supreme Court upheld Porter's decision on the brutality claims, but the judges were "deeply troubled" over the alleged Brady violations, and in a ruling dated May 29, 1998, they ordered Porter to conduct a hearing into the matter.
That hearing will begin next week, starting on May 31, and it is expected that the prosecutors, policemen, and defense lawyers who appeared in court at the original trial will take the stand in an attempt to determine what was turned over to Hobley's public defenders and what was not.
The judge could order that Hobley be given a new trial, and in light of what is now known about the methods of Jon Burge and his detectives and about the reliability of the testimony of Andre Council and Kenneth Stewart, the state could decline to prosecute a second time. However, if Porter's past record in this case is any guide, the hearing will end with Hobley one step closer to a lethal injection.