Report of the Illinois Special State’s Attorney Relating to Police Brutality: A Legal Analysis of Federal Laws Implicated
Released: 2006-07-31T00:00:00

Introduction

On July 19, 2006, Illinois Special State's Attorney Edward J. Egan and Chief Deputy Special State's Attorney Robert Boyle, named to investigate long standing charges of police brutality by a segment of the Chicago Police Department, released their report, Report of the Special State ' s Attorney: Appointed and Ordered by the Presiding Judge of the Criminal Division of the Circuit Court of Cook County in No. 2001 Misc. 4 (Report) . The Report , the culmination of a 4-year investigation, concluded that criminal charges might have been brought in three cases of police misconduct, but in each instance were barred by the Illinois statute of limitations. Press accounts indicate, however, the Chief Deputy Special State's Attorney Boyle, the Report 's co-author, suggested that a prosecution under federal RICO and Hobbs Act statutes might encounter less severe statute of limitations obstacles. This is a brief examination of the federal criminal statutes implicated by the Report .

The Report concluded:

â In the case of Andrew Wilson, there exists proof beyond a reasonable doubt that the commanding officer of Area 2 and two other officers who interrogated Wilson committed aggravated battery, perjury and obstruction of justice in violation of Illinois law, but two of the officers are deceased and the Illinois 3 year statute of limitations bars prosecution the former commander of the Area 2 Violent Crime unit, Report at 63, 16.

â In the case of Phillip Adkins, there exists proof beyond a reasonable doubt that two other officers who interrogated Adkins committed aggravated battery in violation of Illinois law, but the Illinois statute of limitations bars prosecution, Report at 274, 16.

â In the case of Alfonzo Pinex, there exists proof beyond a reasonable doubt that a second pair of officers who interrogated Pinex, committed aggravated battery, perjury and obstruction of justice in violation of Illinois law, but the Illinois statute of limitations bar prosecution, Report at 290, 16.

Andrew Wilson

Wilson was arrested at 5:15 on the morning of February 14, 1982, in connection with the investigation of the murder of two police officers, Report at 45. The arresting officers allegedly brutalized Wilson, beating him, burning him, subjecting him to electric shocks, and threatening him with a gun until he confessed, Report at 46-7. The commanding officer of the Area 2 Violent Crime Unit was purportedly present during much of the time and was said to have administered some of the mistreatment, id. At 10:00 in the evening, Wilson was taken to hospital after officers at the lock-up refused to take custody of him because of his condition. After the escorting officers remarked that he would refuse treatment if he knew what was good for him, he "was examined at about 11:15 p.m. by Dr. Geoffrey Korn. Dr. Korn [later] testified that he made note of some 15 separate injuries that were apparent on the defendant's head, chest, and right leg. Two cuts on the defendant's forehead and one on the back of his head required stitches; the defendant's right eye had been blackened, and there was bleeding on the surface of that eye. Dr. Korn also observed bruises on the defendant's chest and several linear abrasions or burns on the defendant's chest, shoulder, and chin area. Finally, Dr. Korn saw on the defendant's right thigh an abrasion from a second-degree burn; it was six inches long and 1 Â½ to 2 inches wide."

Wilson was subsequently convicted for the murder of the two officers and sentenced to death, but the Illinois Supreme Court overturned the conviction on appeal because the state had failed to demonstrate that Wilson's confession was not coerced. He was retried, convicted a second time and sentenced to life imprisonment; his conviction and sentence were affirmed and his federal habeas corpus petition denied.

Wilson sued the three officers, the Superintendent of Police and the City under 42 U.S.C. 1983, based on allegations of his mistreatment, and ultimately settled with the City after being awarded damages and attorney's fees at trial against the commanding officer. The Office of Professional Standards investigation of the allegations of brutality led to the commanding officer's suspension in November 1991 and, following a Police Board hearing, his dismissal in 1992, Report at 153.

The commanding officer denied mistreating Wilson at the suppression hearing (November 9, 1982), in depositions relating to the civil litigation (1988, 1989), and at the hearing before the Police Board (which nevertheless found the three had tortured Wilson, fired the commander, and suspended the other two officers in 1992), Report at 28-29, 44, 49. He seems likely to have denied them to investigators during various Office of Professional Standards investigations, the last of which apparently occurred in November 1991, Report at 153, and during interviews with the Special State's Attorney's office sometime between 2001 and 2006, Report at 15.

Phillip Adkins

Adkins was arrested on June 7, 1984, in connection with an armed robbery during which a police officer was assaulted, Report at 266. Adkins asserts that on the way to the station police officers from Area 2 beat him to unconsciousness, Report at 267-69. He was hospitalized in the Intensive Care/Trauma Ward on June 8 and June 9 and discharged on June 10, Report at 271. Adkins successfully sued the officers and the City in federal court and the City settled for $25,000, Report at 267. Thereafter, the Chicago Office of Professional Standards conducted an investigation (May 4, 1993 to December 16, 1993) that concluded that officers had in fact beaten Adkins, Report at 266.

Alfonzo Pinex

Pinex was arrested on June 28, 1985, in connection with a murder charge, Report at 276. His statement while in custody was suppressed for failure to honor his Miranda rule rights, Report at 276-77. The court declined to address the question of whether the statement was the product of a beating, Report at 277. Charges against Pinex were dismissed and he sued alleging that two officers in Detective Area 2 had beaten him to secure his confession while he was in custody, id . The City settled for $5,000 on November 1, 1991, id .

Related Matters

The Report addresses several other instances where detainees complained that they were beatenÂ by officers of Detective Area 2. In each instance, the Report concludes that there is a lackÂ of creditable evidence sufficient to convict the officers in question, Report at 178, 182, 202, 240-41, 264.

The Report also considers the possibility of charges against those purported to have "covered up" the misconduct of others at Detective Area 2. It observes that, "We have found no evidence that would support a charge beyond a reasonable doubt of obstruction of justice (or 'cover-up') by anyÂ police personnel. There is insufficient evidence of wrongdoing by any member of the State'sÂ Attorneys Office, except for one person," Report at 17; see also, Report at 32-6; 112-29.Â The exception is apparently reserved for the prosecutor who ultimately took Wilson's recorded confession:

If he was telling the truth when he testified about the sequence of events leading up to the court-reported confession of Andrew Wilson, . . . then the claim of Andrew Wilson that he had been abused before he gave that confession would be seriously undercut. If, on the other hand, [he] was not telling the truth, his false testimony would stand as strong corroboration of Andrew Wilson . . . He has testified on the motion to suppress and before the jury that convicted Wilson and sentenced him to death. He was named in the Federal civil rights action brought by Andrew Wilson. . . His deposition was taken, and he testified in both civil trials. He also testified as a witness on behalf of [the police commander] in the Police Board hearing in 1992. . . . In our judgment [he] did not tell the truth when he denied that he had been told by Andrew Wilson that he had been tortured by detectives, Report at 53-4.

The Report does not indicate that its authors would seek to indict and convict the prosecutor but for impediment of the statute of limitations, nor does it speak to the weight of any evidence that might support charges of perjury or obstruction of justice against the prosecutor.

Finally, the Report comments that, "the evidence supports the conclusion that [the] Superintendent [of Police] was guilty of a dereliction of duty and did not act in good faith in the investigation of the claim of Andrew Wilson," Report at 17. It makes no comment on the existence or weight of any evidence to support criminal charges.

Federal Laws Implicated

Although the purpose of the Special State's Attorney's inquiry was to determine whether prosecution under Illinois law might be had, statements contained in the Report suggest the possibility that several federal criminal laws may have been violated. The Fourth Amendment prohibits unreasonable searches and seizures; the Fifth Amendment prohibits compelling an individual to incriminate himself; the Eighth Amendment prohibits cruel and unusual punishment; each is binding upon the state and local officials by virtue of the due process clause Fourteenth Amendment. In combination, they prohibit police from torturing and otherwise brutalizing those in custody either to elicit confessions or otherwise; to do so under color of law constitutes a federal crime, 18 U.S.C. 242.

It is likewise a federal crime to use force, corruption, or deceit to prevent another from providing authorities with information concerning other federal offenses, 18 U.S.C. 1512; or to directly provide a material false statement in a matter within the jurisdiction of a federal agency or department, 18 U.S.C. 1001; or to lie under oath in federal proceedings, 18 U.S.C. 1621. A fifth federal crime, the Hobbs Act, outlaws extortion under color of official right to the extent that the misconduct obstructs, delays or affects commerce, 18 U.S.C. 1951.

Federal racketeering laws (RICO) proscribe operating a formal or informal enterprise, whose activities affect interstate commerce, through the patterned commission of other state or federalÂ crimes (referred to interchangeably as racketeering activities or predicate offenses), 18Â U.S.C. 1961-1963.

Anyone who aids or abets the commission of a federal offense by another is liable himself for itsÂ commission and is equally punishable, 18 U.S.C. 2. The same can be said of anyone who conspires with another to commit a federal offense or to obstruct federal governmental activitiesâconspirators are liable and punishable for any underlying offenses committed in furtherance of the conspiracy. Conspiracy is a little different, however, in that it is also a separate crime, complete upon the criminal agreement and under the general conspiracy statuteÂ upon the commission of some overt act in furtherance of the scheme, 18 U.S.C. 371; liabilityÂ attaches regardless of whether the crime which is the object of scheme is ever committed, 18 U.S.C. 371.

Absent some specific exception, federal crimes are subject to a general 5-year statute of limitations; an indictment or information initiating prosecution must be filed within 5 years of the commission of the offense, 18 U.S.C. 3282. In the case of crimes like conspiracy or RICO offenses that can extend over long periods of time, the statute of limitations begins to run with the last act committed in the name of the criminal enterprise and may be considered to continue to exist until abandoned or the object of the conspiracy has been achieved.

Evidence that establishes that police officers committed aggravated battery upon Wilson, Adkins, and Pinex in violation of Illinois law would presumably be sufficient to support a civil rights conviction for violation of 18 U.S.C. 242.

Federal perjury charges cannot be predicated upon false statements made during Illinois judicial and administrative proceedings, but the same false statements may have been made under oath in connection with the federal civil rights suits brought by Wilson and Adkins. Statements that denied Wilson and Adkins were beaten while in police custody, if perjurious in Illinois proceedings, were likely perjurious in federal proceedings. Moreover, evidence of such false statements made to internal police and other state investigators concerning conduct that might constitute a federal civil rights violation could form the basis for a federal prosecution under either 18 U.S.C. 1001 (false statements on a matter within the jurisdiction of a federal department or agency) or 18 U.S.C. 1512 (obstructing disclosure of a federal crime to federal authorities by deception of a potential witness).

Until recently, it might have been possible to argue that the use of violence or the threat of violence by law enforcement authorities to coerce prisoners to relinquish their constitutional rights constituted prohibited extortion under the Hobbs Act and as a RICO predicate. The Supreme Court's decision in Scheidler v. NOW , seems to preclude such a construction. Scheidler held that Hobbs Act extortion does not include the use of violence or the threat of violence to "restrict another's freedom of action." Moreover, Scheidler holds that the same definition of extortion applies the generic reference to state extortion laws in the RICO predicate list.

The Ninth Circuit appears to have recognized the general possibility of a RICO prosecution in cases involving charges of police misconduct. The cases there, however, involved allegations of a wider range of predicate offenses, principally involved an issue critical in civil RICO cases but not relevant for purposes of a criminal RICO prosecution, and have yet to resolve the question of whether the requisite elements of a RICO have been satisfied. The cases, which grew out of the so-called "Ramparts Scandal," alleged that various officers had committed kidnaping, extortion, witness tampering, drug dealing, and attempted murder. They focused primarily on the type of injuries for which a civil RICO plaintiff has standing to recover damages.

As for the possibility of a RICO prosecution based on crimes implicated here, civil rights violations of 18 U.S.C. 242 are not RICO predicate offenses, 18 U.S.C. 1961(1); neither are violations of 18 U.S.C. 1001 (false statements), of 18 U.S.C. 1621 (perjury), nor of 18 U.S.C. 371 (conspiracy), 18 U.S.C. 1961(1). Violations of 18 U.S.C. 1512, however, are RICO predicate offenses, 18 U.S.C. 1961(1)(B). In order to establish a RICO violation in this context, the government would have to prove that the commander and/or various officers of Area 2 conducted the activities of an enterprising affecting interstate commerce (either the Area 2 violent crime section or the informal association of the officers dedicated to the use of brutality to punish and obtain coerced confessions from some of those in their custody) through the patterned commission of violations of 18 U.S.C. 1512(b)(3) (i.e., denials and fabrication to investigators pursuing allegations of such brutality).

But at least in part, the problem may be one of time. The Constitution's ex post facto clauses, U.S.Const. Art.I, Â§9, cl.3 and Art.I, Â§10, cl.1, prohibit the retroactive application of either federal or state criminal laws. Section 1512 was enacted and became effective on October 12, 1982; it cannot be applied to misconduct occurring prior to that date. Section 1512 became a RICO predicate offense on November 10, 1986; a RICO prosecution cannot be grounded on section 1512 predicate offenses occurring prior to that date. The three cases the Report found prosecutable (but for the statute of limitations) at best involve conduct straddling November 10, 1986. The denials of mistreatment to state investigators, at state proceedings, or during depositions, which provide the gravamen under section 1512 (preventing disclosure to federal authorities by deceiving those who would otherwise report the commission of a federal offense), begin with Wilson's suppression hearing on November 9, 1982, and end possibly with denials at interviews conducted by the Report 's authors, Report at 26, 7, 14.

The date section 1512 was added as a RICO predicate, November 10, 1986, provides a beginning line; no prior violation of section 1512 may be used as a RICO predicate offense. There may also be a question as to the end line. It is not at all clear that section 1512(b)(3) covers situations where deceit is used to prevent disclosure of information to federal authorities concerning federal crimes for which the statute of limitations has expired. Thus, it may be that no violations of section 1512(b)(3) occurred with respect to denials made more than five years after the alleged civil rights violations on February 14, 1982 (Wilson), June 7, 1984 (Adkins), or June 28, 1985 (Pinex). On the other hand, here we have alleged civil rights violations followed by a series of denials themselves purportedly constituting violations of federal perjury and false statement statutes. A court might conclude that the end line should be marked at five years after the penultimate instance of perjury or a false statement, concealed within a more recent denial upon which a section 1512 charge may be based. In the context of the Wilson case, for example, section 1512 may permit the prosecution of any denial occurring within five years of false statements made concerning the 1982 civil rights violation during testimony at the 1992 Police Board hearing.

Then there is the question of pattern. A RICO prosecution requires the government to establish not only qualified predicate offenses but to prove that they were committed as part of a pattern. The Supreme Court has explained that a "person cannot be subjected to [RICO] sanctions simply for committing two widely separate and isolated criminal offenses. Instead, the term 'pattern' itself requires the showing of a relationship between the predicates and of the threat of continuing activity. It is this factor of continuity plus relationship which combines to produce a pattern." "[P]redicate acts are related if they have 'the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.'" RICO continuity comes in two forms, a series of predicate offenses that has ended (closed ended) and a series of predicate offenses that is continuing or bears the threat of continuation (open ended). The government "can satisfy the continuity prong either by (1) demonstrating a close-ended series of conduct that existed for such an extended period time that a threat of future harm is implicit, or (2) an open-ended series of conduct that, while short-lived, shows clear signs of threatening to continue into the future."

The Report highlights three cases, each arising at least a year apart from the others, and involving three different sets of officers. Nevertheless, each is an instance where officers of Area 2 under the same commanding officer are alleged to have brutalized detainees in police custody, regularly denied wrongdoing, and offered explanations that the Report does not find creditable. Of course, the civil rights violations are not the alleged RICO predicates. The RICO predicates are instead the alleged violations of section 1512 in the form of denials and fabrications to investigators, and in state proceedings and federal depositions. More numerous than the underlying civil rights violations, they benefit and suffer from the same relationship analysis. They are relatively isolated instances involving different officers, but arising out of the same environment, reflecting common means and purpose.

Even if a court should find the cases sufficiently related for RICO purposes, the question of continuity may still prove troubling. The actionable obstructions appear to run from the depositions taken in Adkins' civil case in 1987 to the depositions in Wilson's civil litigation in 1988 and 1989, and include statements in Pinex's civil litigation in 1991, testimony in the Wilson Police Board hearing in 1992, and possibly statements to investigators in the Office of Professional Standards' Adkins investigation that ended in December 16, 1993. The duration of the activity would seem sufficient, but the comparatively few instances, relatively isolated in time and circumstance, may bring into question whether the events can accurate be seen as the evidence of the continuous existence of a single enterprise.

Statute of Limitations

As noted earlier, federal crimes are generally subject to a 5-year statute of limitations, 18 U.S.C. 3282. The civil rights violations of which the Report speaks occurred in 1982, 1984 and 1985. The Report indicates that with the exception of its own interviews (for which it provides no dates) the denials and alleged fabrications upon which any other criminal charges would have been grounded occurred not later December 16, 1993, the date upon which the last mentioned Office of Professional Standards investigation ended, Report at 266. The Report argues that the Illinois statute of limitations precludes state prosecution, Report at 16.

While citing the earlier conclusions of federal authorities, media accounts at the time the Report was released quoted one of its authors as suggesting that RICO and the longer federal statute of limitation might hold the prospect of future federal prosecution. This would seem to build upon a theory that the officers alleged to have committed the three civil rights violations in the 1980s were part of a conspiracy or RICO enterprise that encompassed not only the beating of detainees but an agreement to perpetually conceal the activity.

As a general rule, the statute of limitations begins to run with the commission of the most recent overt act for conspiracies in violation of a statute which requires the government to prove both criminal agreement and some overt act in furtherance of scheme. In the case of statutes like RICO whose conspiracy proscription carries no overt act requirement, the scheme is said to continue until all its objectives have been realized or it is abandoned.

In Grunewald v. United States , 353 U.S. 391 (1957), the question arose in whether in the case of an overt act conspiracy, the statute of limitations may be extended when the conspirators or one of their number acts to conceal the past workings of the scheme. The defendants in Grunewald had conspired to fix tax prosecutions and had doctored government records to conceal their misconduct, 353 U.S. at 395. When a grand jury was convened after the statute of limitations on the "tax fix" had run, the conspirators denied wrongdoing and urged other witnesses not to cooperate, 353 U.S. at 396. The prosecution argued that the conspiracy included a concealment component that meant the plot continued in place even after its principal objective, the tax fix, had been accomplished.

The Court was unpersuaded, "[w]e find in all this noting more than what was involved [in our earlier cases], that is: (1) a criminal conspiracy which is carried out in secrecy; (2) a continuation of the secrecy after the accomplishment of the crime; and (3) desperate attempts to cover up after the crime begins to come to light; and so we cannot agree that this case does not fall within the ban of those prior opinions," 353 U.S. at 403. But then the Court went on the explain that "[b]y no means does this mean that acts of concealment can never have significance in furthering a criminal conspiracy. But a vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime." 353 U.S. at 405 (emphasis in the original).

Subsequent lower court decisions reflect the view that an overt act of concealment will toll the statute of limitations or evidence its continued existence if the indictment charges that concealment was of the main object of the conspiracy. The Report cites two reported federal appellate court cases as examples, United States v. Masters , 924 F.2d 1362 (7 th Cir. 1991), and United States v. Maloney , 71 F.3d 645 (7 th Cir. 1995). Masters involved an attorney, a chief of police who until he lost his job took kickbacks for referring clients to the attorney, and a sheriff's department lieutenant who accepted bribes from the attorney to protect bookies from police interference, 924 F.2d at 1365. The three also participated in a plot to murder the attorney's wayward wife, 924 F.2d at 1365-366. The three were convicted under federal RICO charges predicated on the corruption offenses, 924 F.2d at 1365. The chief of police was charged and convicted only with conspiracy because the statute of limitations on the substantive corruption charges had run between the time he lost his job and the time the indictment was returned, id .

The appellate court rejected the chief's statute of limitations challenge with the observation that "[t]he conspirators in this case, signally including [the chief], intended from the first to exert strenuous efforts to prevent discovery of the crime and of their involvement in it; the fact that two of the three conspirators were policemen supports the inference that concealment was part of the original conspiracy and not a spontaneous reaction to fear of arrest and prosecution. It was also a fair inference that the defendants agreed to keep trying to conceal the conspiracy for as long as they could, using their official positions where possible," 924 F.2d at 1368.

Maloney involved a judge who accepted bribes to "fix" four criminal cases and then sought to make sure that the middle man through whom the bribes were funneled continued to "stand tall" in the face of criminal investigations into allegations of corruption, United States v. Maloney , 71 F.3d 645, 650-52 (7 th Cir. 1995). The statute of limitations had run on each of the bribery cases by the time indictments were returned, but the judge was charged with and convicted of a RICO conspiracy based upon the obstruction of justice predicates, 71 F.3d at 649. The judge objected that the statute of limitations barred prosecution for a conspiracy to conceal the commission of time-barred offenses, but the appellate court responded that, "[u]nlike Grunewald , however, the conspiracy's main criminal objective was never 'finally attained' in this case. . . . In the instance case, the main criminal objective, to fix cases whenever feasible, was neither accomplished nor abandoned as long as Judge Maloney remained on the bench . . . Concealment, therefore, was an overt act in furtherance of the conspiracy's main objectives. . . Maloney's statements . . . helped to preserve his position on the benchâthe essential ingredient in the conspiracy's ability to fix cases. . . Thus, Grunewald does not exclude the obstruction of justice acts from the RICO conspiracy for statute of limitations purposes" 71 F.3d at 659-60.

Cases from other circuits reflect the same view: Grunewald does not bar extension of the statute of limitations to include acts of concealment where concealment falls within the scope of the conspiracy; Grunewald only applies where the conspiracy's objectives have been attained and concealment follows.

If federal prosecutors could establish either a conspiracy in which concealment was an initial object of the plot or a RICO violation or conspiracy, the specter of a statute of limitations bar would disappear. Otherwise the statute of limitations would appear to preclude federal prosecution on the basis of any misconduct identified in the Report .

Other than its own interviews, the last of the events in question took place no later than DecemberÂ 16, 1993, Report at 266. The Special State's Attorney's investigation described in the Report began in 2001 and ended July 19, 2006. The commanding officers and each of the individual officers whom the Report describes as indictable were interviewed, Report at 16, 274, 290, 15. The interview statements were apparently consistent with the officers' earlier statements, for the Report would certainly have noted any incriminating statements. If the interview statements were false and material, they would constitute violations of 18 U.S.C. 1001 and 1512(b) (3); but if the statute of limitations bars the prosecution of the offenses to which the statements relate, they are not material consequently no violation.

The Report suggests that dispelling statute of limitation difficulties, however, may be challenging,Â for on several occasions federal authorities have concluded that the passage of timeÂ bars federal prosecution:

On October 3, 1990 . . . the Task Force to Confront Police Violence wrote to . . . the United States Attorney, pointing out that [it] had previously submitted information regarding incidents of torture committed by the detectives at Detective Area 2 . . . the response form the United States Attorney's Office was that the incidents had occurred more than five years before. . . On March 15, 1991, Assistant Public Defender Joseph M. Grump wrote to [the Attorney General], also referring to . . . the case of Andrew Wilson. Mr. Gump identified over 25 cases involving persons who claimed to have been abused. . . it was determined that prosecution would be declined because of the statute of limitations. The matter was reopened by the Department of Justice, and on May 18, 1993, prosecution was again declined because of the statute of limitations.

Shortly after we were appointed, we were informed that persons . . . seeking prosecution of police officers met with [the] Attorney General. . . .We have received a report that the investigation . . . by the Civil Rights Section of the Justice Department was closed as of December 2001 because of the statute of limitations. Report at 30-1, 30.