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United States v. Burge

April 23, 2009

UNITED STATES OF AMERICA,
v.
JON BURGE.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Defendant, Jon Burge, was a commander in the Chicago Police Department ("CPD"). He supervised detectives at the Area Two and Area Three commands, as well as the Bomb & Arson Squad during the 1980s and early 1990s. Many suspects who were detained and interrogated under Burge's command later reported that they had been abused and tortured. Several brought civil rights cases in this court against Burge, among them Madison Hobley and Andrew Wilson. In Hobley v. Jon Burge, et al., No. 03 C 3678, Burge responded to interrogatories denying ever having physically coerced, abused or tortured suspects who were in detention or being interrogated and denied knowledge of such actions by other Chicago police officers. These denials are the basis of the pending indictment charging Burge with two counts of making false statements and one count of obstructing justice in violation of title 18, United States Code, section 1512(c)(2). The government has moved in limine under Federal Rule of Evidence 804(b)(1)to admit the testimony of Wilson, now deceased, who testified in two testimonial proceedings that Burge had physically coerced, abused and tortured him and knew that other Chicago police officers had done the same. Burge contends the responses are inadmissible under Rule 804(b)(1) and their admission would violate his right of confrontation under the Fifth Amendment. For the reasons stated below, the government's motion [#21] will be granted.

BACKGROUND

I. Hobley's Civil Rights Case

On May 30, 2003, Hobley filed suit in this court against the City of Chicago, Burge and several other Chicago police detectives under 42 U.S.C. §1983 for violations of his civil rights. The complaint alleged that in January 1987 while investigating the act of arson which killed Hobley's wife and infant son, the detectives of the Area Two Violent Crimes Division, which Burge commanded, attempted to coerce a confession from Hobley by beating him, suffocating him with a plastic typewriter cover, using racially offensive language and repeatedly threatening him. See Hobley Compl. ¶¶ 2, 9, 15, 17. Unable to coerce him into making a confession, Hobley alleged that the defendant officers manufactured a false oral confession and thereafter planted incriminating evidence, withheld exculpatory evidence and bribed witnesses to falsely implicate him at trial. Id. ¶¶ 15-28. Hobley was ultimately convicted and served sixteen years in prison before being pardoned in January 2003.

Hobley contended that the conduct he described was part of "a pattern and practice of torture of subjects by Area Two Violent Crimes detectives" and noted that the CPD's own Office of Professional Standards ("OPS") had concluded that police command members, including Burge, were aware of systematic and methodical physical abuse and had perpetuated it, either by actively participating or failing to stop it. Id. ¶ 33 (citing OPS Burge Report, 11/2/90, pp. 2-3). To prove his pattern and practice theory, Hobley propounded two sets of interrogatories regarding Burge's participation in and knowledge of the pattern and practice of torture at Area Two. The first set of interrogatories and Burge's November 12, 2003 responses thereto are as follows:

QUESTION #13: State whether you have ever used methods, procedures or techniques involving any form of verbal or physical coercion of suspects while in detention or during interrogation, such as deprivation of sleep, quiet, food, drink, bathroom facilities, or contact with legal counsel and/or family members; the use of verbal and/or physical threats or intimidation, physical beatings, or hangings; the use of racial slurs or profanity; the use of physical restraints, such as handcuffs; the use of photographs or polygraph testing; and the use of physical objects to inflict pain, suffering or fear, such as firearms, telephone books, typewriter covers, radiators, or machines that deliver an electric shock. For each such use of verbal or physical coercion identify the detainee(s) and/or suspect(s), any other officers or individuals involved, the date of the incident, the specific conduct in which you or any officer engaged, and whether you or any other officer was the subject of any complaint or discipline as a result of said conduct. ANSWER: Defendant objects to Interrogatory no. 13 because said question is overly broad, unduly vague, ambiguous and calls for a legal conclusion. Subject to and without waiving said objection, I have never used any techniques set forth above as a means of improper coercion of suspects while in detention or during interrogation.

QUESTION #14: State whether you were aware of any Chicago Police Officer, including but not limited to officers under your command, ever using methods, procedures or techniques involving any form of verbal or physical coercion of suspects whole in detention or during interrogation, such as deprivation of sleep, quiet, food, drink, bathroom facilities, or contact with legal counsel and/or family members; the use of verbal and/or physical threats or intimidation, physical beatings, or hanging; the use of racial slurs or profanity; the use of physical restraints, such as handcuffs; the use of photographs or polygraph testing; and the use of physical objects to inflict pain, suffering or fear, such as firearms, telephone books, typewriter covers, radiators, or machines that deliver an electric shock. For each such use of verbal or physical coercion identify the detainee(s) and/or suspect(s), any other officers or individuals involved, the date of the incident, the specific conduct in which you or any officer engaged, and whether you or any other officer was the subject of any complaint or discipline as a result of said conduct.

ANSWER: Defendant objects to Interrogatory no. 14 because said question is overly broad, unduly vague, ambiguous and call for a legal conclusion. Subject to and without waiving said objection, I am not aware of any.

Count I of theOct. 16, 2008 Indictment [ Docket No. 1] ¶ 7 (citing First Set of Interrogatories and Burge's responses thereto). On November 25, 2003, in response to Hobley's second set of interrogatories, Burge submitted the following response:

QUESTION #3: Is the manner in which Madison Hobley claims he was physically abused and/or tortured as described in Plaintiff's Complaint (including, for example, the allegation of "bagging" with a typewriter cover) consistent with any other examples of physical abuse and/or torture on the part of Chicago Police officers at Area Two which you observed or have knowledge of ? Please explain your answer and identify any other instances or examples of the same or similar physical abuse and/or torture.

ANSWER: I have not observed nor do I have knowledge of any other examples of physical abuse and/or torture on the part of Chicago Police officers at Area Two.

See Id. at Count II ¶ 2 (citing Second Set of Interrogatories and Burge's responses thereto).

The italicized portions of Burge's responses form the basis of the government's indictment in this case. The government charges that at the time Burge submitted theses answers, he "knew he had participated in one or more incidents of physical coercion of suspects while the suspects were in detention and/or were being interrogated, and was aware of one or more other such events involving the abuse or torture of people in custody." Indictment, Count I ¶ 8. The government also charges that Burge knew he had "observed, participated in, and had knowledge of one or more other examples of physical abuse and torture on the part of Chicago police officers at Area Two, including, but not limited to, abuse of a person by "'bagging.'" Id. at Count II ¶ 3.

II. Wilson's Testimony

William Fahey and Richard O'Brien, both Chicago police officers, were shot and killed on February 9, 1982. Wilson became a suspect. Around 5:00 am on February 14, 1982 he was arrested and brought to the Area Two police station. Wilson maintained that while he was at Area Two, he was beaten, kicked, smothered with a plastic bag, burned with a cigarette, given a succession of electronic shocks on his ears, genitals, and back, stretched across a hot radiator, and had a loaded gun placed in his mouth and cocked. Government's Memorandum in Support of its Motion in Limine ("Mem.") at 7-9; see also Wilson v. City of Chicago, 6 F.3d 1233, 1236 (7th Cir. 1993). He further maintained that Burge actively participated in, knew of and sanctioned this conduct. Id.

A. Wilson's Criminal Case

During his criminal trial, Wilson moved to suppress the statement he made during his detention at Area Two, arguing that it was involuntary. At the hearing on the motion, Wilson testified that "he was punched, kicked, smothered with a plastic bag, electrically shocked, and forced against a hot radiator throughout the day on February 14, until he gave his confession." People v. Wilson, 506 N.E.2d 571, 573, 116 Ill. 2d 29, 106 Ill. Dec. 771 (Ill. 1987). The motion to suppress was denied and Wilson was convicted and sentenced to death. Id. at 572. The Supreme Court of Illinois reversed Wilson's conviction, ruling that the state had failed to prove that the confession was not the product of coercion.*fn1 Id. at 576. Wilson was then retried. On June 20, 1988, he was convicted of both murders and armed robbery and thereafter sentenced to a term of natural life imprisonment. See People v. Wilson, 626 N.E.2d 1282, 1286, 254 Ill. App. 3d 1020, 193 Ill. Dec. 731 (Ill. App. Ct. 1st Dist. 1993).*fn2

B. Wilson's Civil Rights Case

While his criminal cases were on appeal, Wilson filed a civil rights suit against the City of Chicago, Burge and other Chicago police officers*fn3 based on the injuries he sustained while in police custody. Burge denied that any physical coercion, abuse or torture had occurred. Answer in Wilson v. City of Chicago, et al., No. 86 C 2360, attached as Ex. B to Mem. Wilson's civil rights case was tried twice because the first trial ended in a hung jury. See Wilson, 6 F.3d at 1236. The second trial resulted in a special verdict that found Wilson's constitutional rights violated but exonerated all the officers.*fn4 Id. The Seventh Circuit reversed the judgment as to Burge and the other individual defendants, ruling that the district judge erred in (1) allowing the defendants to introduce "evidence of the ugly details of [Wilson's] crimes because they were not relevant to the injuries Wilson's suffered while in police custody, id. at 1236-38, and (2) refusing to allow Wilson to introduce two witnesses who would have testified that they also were tortured by Burge and the other defendant officers. Id. at 1238.

Wilson gave a deposition and testified at both trials. William Kunkle,*fn5 the State's Attorney who represented Burge and several other of the defendant officers*fn6 cross-examined Wilson. Kunkle's cross-examination of Wilson at the first civil trial constituted more than 225 pages of transcript and more than 200 pages at the second trial. Mem. at 9. Because his criminal case was on appeal at the time of his second civil rights trial, Wilson, with the help of his attorney, invoked his privilege against self-incrimination ("the Fifth Amendment") in response to certain questions. Id. at 1237; see also Resp. at 5.

C. The Police Board Proceedings

After the second trial in Wilson's civil case, OPS reopened its investigation into the conduct of Burge, O'Hara and Yucaitis. On November 12, 1991, the Superintendent of Police filed charges with the police board alleging that Burge violated several of the CPD's rules and regulations by, inter alia, participating in and sanctioning the physical abuse and mistreatment of Wilson on February 14, 1982. See Ex. C to Mem. The police board, acting as an administrative agency in a judicial capacity, held a hearing in February and March of 2002. See Wilson v. City of Chicago, 900 F. Supp 1015, 1019, 1025 (N. D. Ill. 1995) (finding that the police board hearing "constituted a full and fair hearing"). Burge, O'Hara and Yucaitis were again represented by Kunkle who presented evidence and cross-examined opposing witnesses on their behalf. See Resp. at 6; Wilson, 900 F. Supp. at 1019, 1025. Wilson again testified. As with his cross-examination during the civil trials, Wilson, on the advice of his criminal counsel, invoked the Fifth Amendment in response to certain questions involving the details of the crimes for which he had been convicted.*fn7 See Resp. at 6 and the Transcript of the police board hearing, attached as Ex. 6 thereto ("Hrg. Trans."). Kunkle's cross-examination of Wilson at the police board hearing constitutes more than 200 transcript pages. Mem. at 9.

On February 11, 1993, the police board issued findings setting forth its factual and legal conclusions and its final decision. See In the matter of the charges filed against Commander Jon Burge, Star No. 338, Department of Police, City of Chicago, Findings & Decision, attached as Ex. D to Mem. The police board found that Burge, O'Hara and Yucaitis had engaged in misconduct. See Ex. D to Mem. at 41, 43-48; Wilson, 900 F. Supp. at 1019. Burge was found to have violated CPD rules based on his physical abuse of Wilson, failing to take action to stop the other officers from abusing Wilson despite his knowledge that they were doing so, and failing to provide proper medical care to Wilson. Id. O'Hara and Yucaitis were suspended from the police force for fifteen months. See Ex. D to Mem. at 58; Wilson, 900 F. Supp. at 1020. Burge was "separated from his position as Commander with the Department of Police and from the services of the City of Chicago." Id. The police board's decision was upheld on administrative review by the Circuit Court of Cook County, Chancery ...


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