Ordinarily, state’s attorneys who desire reelection or higher office portray themselves as courageous crime fighters responsive to their communities, who leave no stone unturned to put evildoers in prison. Cook County state’s attorney Richard Devine, now contemplating a run for governor, has recently turned that tradition on its head.
No Illinois inmate has ever walked away from death row by dropping a claim that he was tortured by police. Indeed, various death penalty experts from across the United States, including Brenda Bowser of Washington’s Death Penalty Information Center and University of Colorado professor Michael Radelet (the author of several books and studies on the death penalty), could name no other inmate in the history of the nation who got off death row this way. The benefit to the inmate, of course, is eventual freedom, but at the cost of damaging his prospects in a civil suit for wrongful imprisonment. The benefit to the prosecutors is that the police force comes off in a much more favorable light (“No torturers here”), the treasury may be spared tens of millions of dollars in damages for wrongful imprisonment, and the state’s attorney doesn’t look so bad for not pursuing the torturers.
In late 1990, two reports prepared by the Office of Professional Standards concluded that abuse at Area Two was systematic and included “planned torture,” and that Commander Burge had indeed used electric shock devices to torture Andrew Wilson after his arrest for killing two policemen. Police superintendent LeRoy Martin, who had once served as Burge’s supervisor at Area Two, sat on the reports for a year before asking the Police Board to conduct an inquiry. In the meantime, the city fought to keep the OPS documents from the public eye, eventually losing that battle in federal court. Upon their publication, Mayor Daley, who had been state’s attorney at the time, dismissed the OPS reports as nothing more than allegations.
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A little more than a year later, city attorneys changed sides. Until March 28, 1994, members of the city corporation counsel’s staff had insisted that torture had never occurred at Area Two. On that date they declared their belief that Burge was indeed guilty, and the city’s lawyers later characterized the abuse as “savage torture.” The reason for the startling about-face, however, was not concern for victims or justice but rather a desire to escape liability for any damages that might be awarded. The city argued that torture was “beyond the scope of employment”–in essence that Burge had exceeded his job description–and therefore that Burge should pay, not the city. In 1997 the U.S. Court of Appeals dismissed this argument as frivolous, and the city paid more than a million dollars in damages.
Last winter, however, it seemed as though one victim had a fair chance of getting his confession thrown out. Darrell Cannon, an El Rukn general who was convicted of a 1983 murder and sentenced to life, had been granted a new hearing in a 1997 decision written by Appellate Court judge Warren Wolfson. Wolfson indicated that Cannon’s claims of torture were to be heard in full, with ample testimony from other victims. Cannon claimed that he had been beaten with a flashlight, shocked on the genitals with a cattle prod, and subjected to a mock execution at the hands of Detective Peter Dignan (now a lieutenant), Sergeant John Byrne (now a disbarred lawyer working as a private investigator), and Detective Charles Grunhard (now deceased). After Cannon’s witnesses were heard, the state’s attorney’s office decided to plea-bargain. Much was at stake. If the policemen looked bad on the witness stand–and there was good reason for the state to entertain such fears–and the judge suppressed Cannon’s confession, the decision would reverberate through the rest of the Area Two torture cases. If these officers could not be believed in this case, how could they be believed in others? Devine’s office offered Cannon a deal he couldn’t refuse: freedom in approximately two and a half years if he would plead guilty to lesser charges and drop his claim that he’d been tortured. Cannon was furious, as he had hoped to see the policemen grilled on the witness stand, but he ultimately listened to the advice of his lawyers and took the deal.
In Stone and Bowman’s interpretation of the law, the statute of limitations that precluded prosecution for the Class X felonies did not preclude it for obstruction and conspiracy. The two attorneys argued that under Illinois law conspiracy is a continuous offense, meaning that the three-year statute of limitations begins to run anew with each overt act performed by a conspirator in furtherance of the conspiracy. The petition pointed to several recent overt acts by alleged conspirators: depositions in various Area Two cases in which detectives claimed no torture had taken place, and interviews given to the media by Lieutenant Dignan and retired sergeant Byrne. A full investigation, Stone and Bowman wrote, would disclose other recent acts, and these acts did not have to be illegal in themselves if they furthered the original conspiracy.
Devine’s central argument is that if there is no case to be prosecuted, then the conflict of interest issue is beside the point, and his briefs are devoted to attacking the petitioners’ argument that there have been crimes committed by the Burge gang that are not barred from prosecution because of the three-year statute of limitations.
