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United States v. Burge

July 29, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JON BURGE, DEFENDANT.



The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow

OPINION AND ORDER

On October 16, 2008, Jon Burge ("Burge"), a commander in the Chicago Police Department ("CPD") during the 1980s and early 1990s,*fn1 was indicted based on allegedly false interrogatory answers he submitted in Hobley v. Jon Burge, et al., No. 03 C 3678, a civil rights case filed in this court. The two sets of interrogatories at issue concerned Burge's participation in and knowledge of an alleged pattern and practice of physical abuse and torture of Area Two detainees. Counts I and III charge Burge with obstructing justice in violation of 18 U.S.C. § 1512(c)(2) by signing false answers to the first and second sets of interrogatories propounded in Hobley. Count II charges Burge with perjury in violation of 15 U.S.C. § 1621(1). Burge now moves for a change of venue pursuant to Fed. R. Crim. P. 21(a) [#54]. For the reasons discussed below, Burge's motion is denied.

BACKGROUND*fn2

The Chicago press began reporting on allegations of systematic physical abuse and torture during Burge's tenure with the CPD in the late 1980s. After Andrew Wilson ("Wilson") moved to suppress his confession in his criminal case and filed a civil rights suit in 1986 alleging that Burge had tortured and physically abused him in order to coerce him into confessing to the murders of two Chicago police officers,*fn3 many other suspects detained and interrogated at the Area Two and Three commands moved to suppress their confessions, appealed their convictions, sought post-conviction relief, and filed civil rights suits on the same basis. The proceedings in these cases have spanned the past two decades, and the Chicago press has reported on key developments.*fn4 E.g., Jacquelyn Heard, 2 Officers Cleared of Torturing Suspect: Jury Rejects Cop Killer's Charges, CHI. TRIB., Mar. 21, 1989 (Vol. 2, at 7); John Conroy, The Shocking Truth: After insisting for years that Andrew Wilson was never tortured by police, why is the city now insisting that he was?, CHI. READER, Jan. 10, 1997, at 1 (Vol. 3); Ken Armstrong & Steve Mills, Death Row Conviction in Cop Death Overturned: Illinois Justices Cite Prosecutors' Errors, CHI. TRIB., Jan. 28, 2000 (Vol. 2, at 102-103); Steve Mills, Ex-cop's Sister Accuses Burge: Former Police Official Bragged About Torturing Suspects, CHI. TRIB., Apr. 1, 2004 at 8 (Vol. 2, at 116-17); Natasha Korecki, Burge, 8 Others Take Fifth on Police Torture, CHI. SUN- TIMES, July 13, 2004 (Vol. 2, at 124); Michael Higgins & Jeff Coen, Court Orders Daley to talk: Federal Judge's Ruling Clears Way for Deposition in Cop Torture Case, CHI. TRIB., Feb. 23, 2007 (Vol. 2, at 212-13); Eric Herman, Judge: Give Inmate New Hearing Due to Cop Torture, CHI. SUN-TIMES, Aug. 15. 2008 (Vol. 2, at 248).

As a result of Wilson's allegations, the CPD's Office of Professional Standards ("OPS") began investigating the conduct of Burge and the other officers under his command. On November 8, 1991, Burge was suspended from the CPD pending the resolution of the charges filed with the Police Board. The OPS began hearings on February 10, 1992.*fn5 They ended five weeks later, on March 20, 1992. In the interim, the Chicago press reported on the evidence introduced against Burge, his defense and his supporters. E.g., Charles Nicodemus, Cop Killer Shows Scars to Bolster Brutality Case, CHI. SUN-TIMES, Feb. 11, 1992 (Vol. 2, at 32); Sharman Stein, Burge Defense Rips Testimony: Convicted Cop-Killer's Story of Police Torture Challenged, CHI. TRIB., Feb. 12. 1992 (Vol. 2, at 33); Charles Nicodemus, Doctor's Account Bolsters Wilson Torture Charge, CHI. SUN-TIMES, Feb. 14, 1992 (Vol. 2, at 37); Charles Nicodemus, Convict Says Burge Held Plastic Around Head to Get Confession, CHI. SUN-TIMES, Feb. 21, 1992 (Vol. 2, at 39); Janita Poe & Sharman Stein, Burge Supporters Come Out in Force, CHI. TRIB., Feb. 26, 1992 (Vol. 2, at 40-41); Sharman Stein, Burge Says No Torture Occurred, CHI. TRIB., Mar. 3, 1992, at 1, 7 (Vol. 2, at 54); Scott Fornek, Doctor Rebuts Convict's Torture Claims, CHI. SUN-TIMES, Mar. 8, 1992 (Vol. 2, at 57). On February 11, 1993, the OPS issued its decision, firing Burge and finding that he physically abused Wilson, allowed other officers to do the same and denied him medical treatment.*fn6 (For citations, see Apr. 23, 2009, Mem. Op. and Order at 8 (Dkt. No. 31)). The Chicago press reported on the public's divided reactions, as well as Burge's unsuccessful effort to have the OPS ruling overturned. E.g., Larry Weintraub & Tim Gerber, Some Hail Ruling, Others Assail 'Travesty,' CHI. SUN-TIMES, Feb. 11, 1993 (Vol. 2, at 79); Andrew Fegelman, Cop Dismissed in Beating Wants Ruling Overturned, CHI. TRIB., Jan. 12, 1994 (Vol. 2, at 84). In June and July of 1993, the SUN-TIMES and the READER publicized the release of THE END OF THE NIGHTSTICK, a one-hour film on police brutality in Chicago, produced by the Community TV Network. The film focused on Burge and grass-roots efforts to have him fired from the police force. Vol. 2, at 75-76, 90. The READER noted that the film was not even-handed, id. at 75, and the SUN-TIMES stated that "its grasp of political history, press bias and cop psychology is limited." Id. at 76. THE END OF THE NIGHTSTICK was screened at least two times in Chicago and broadcast at least once on PBS.*fn7 Id. at 90.

In 1999, the Chicago press began reporting on efforts to have the capital convictions of ten death row inmates who had allegedly been physically coerced into confessing by Burge or officers under his command overturned.*fn8 E.g., Charles Nicodemus, Cop Links 10 Capital Cases, CHI. SUN-TIMES, Feb. 26, 1999, at 6 (Vol. 2, at 91-92); The Failure of the Death Penalty in Illinois, CHI. TRIB., Nov. 17, 1999 (Vol. 2, at 100, 267-269); John Conroy, Pure Torture, CHI. READER, Dec. 3, 1999, at 1 (Vol. 3). In 2001, State's Attorney Richard Devine was reported as beginning to negotiate deals with some of those inmates to reduce their sentences in exchange for abandoning their claims that they were coerced into confessing. E.g.,Steve Mills, Devine Offers Death Row Deal: Inmates Who Drop Cop Torture Claims May Gain Freedom, CHI. TRIB., Sep. 27, 2001 (Vol. 2, at 106); John Conroy, A Hell of a Deal, CHI. READER, Oct. 12, 2001, at 1 (Vol. 3); John Conroy, Annals of Police Torture: What Price Freedom?, CHI. READER, Mar. 2, 2001, at 1 (Vol. 3).

In April 2002, the Chicago press reported that Judge Paul Beibel of the Circuit Court of Cook County appointed a special prosecutor, Edward J. Egan, and his assistant, Robert Boyle, to investigate the allegations against Burge and those working under his command and to determine whether charges should be brought against them. The special prosecutor investigated the involvement of not only Jon Burge but also of former police superintendent Richard Brzeczek, Mayor Richard Daley and former State's Attorney Richard Devine.*fn9 In November 2005, the TRIBUNE reported that the special prosecutor's investigation was drawing to a close. (Vol. 2, at 141). The special prosecutor's report was widely anticipated in the following months amidst attempts to block its publication. E.g., Michael Higgins & Steve Mills, Police Torture Inquiry Nears End, CHI. TRIB. (Online ed.), Apr. 27, 2006 (Vol. 2, at 151-52); Jeff Coen, Judge: Police Torture Report Should Be Released, CHI. TRIB. (Online ed.), May 19, 2009 (Vol. 2, at 157-58); Mike Robinson, Chicago Police Torture Report Delayed Pending High Court Appeal, CHI. TRIB. ONLINE EDITION, June 2, 2006 (Vol. 2, at 161-62); Michael Miner, Why Name Names?: If and when the report on Jon Burge torture investigation is made public, what might happen next?, CHI. READER, May 26, 2006 (Vol. 2, at 163); John Conroy, The Police Torture Scandal: A Who's Who, CHI. READER, June 16, 2006, at 1 (Vol. 3). The special prosecutors' report was released in July 2006. It concluded that although many claims of torture were credible, the statute of limitations barred prosecution of the wrongdoers. The Chicago press published these findings and publicized the political fallout. E.g., Frank Main, Brzeczek Says he's scapegoat: Lashes Out at Mayor, CHI. SUN-TIMES, July 20, 2006 (Vol. 2, at 184); Frank Spielman, Daley: Cops Responsible for Torture, CHI. SUN-TIMES, July 22, 2006 (Vol. 2, at 182); Mickey Ciokajilo & Dan Mihalopoulos, 'I Would Not Allow Anything Like This': Daley Says He Was Not Aware of Cop Torture, CHI. TRIB., July 22, 2006 (Vol. 2, at 190); Charles Sheehan, Gutierrez Assails Daley Over Cop Torture Scandal, CHI. TRIB., July 23, 2006 (Vol. 2, at 191); Mickey Ciokajlo, Alderman Seek to Revoke Burge's Pension, CHI. TRIB. (Online ed.), July 26, 2006 (Vol. 2, at 203); Michael Miner, Grading the Special Prosecutor's Report: Incomplete, CHI. READER, July 28, 2006 (Vol. 2, at 195-196).

In September 2007, the SUN-TIMES and the TRIBUNE reported that several Chicago alderman were calling for a federal indictment of Burge. See Monique Garcia, Burge Indictment Sought: Alderman Urge Fitzgerald to Look into Federal Charges, CHI. TRIB., Sep. 21, 2007 (Vol. 2, at 232); Fran Spielman, 5 Alderman Urge Feds to Prosecute Burge, Cronies: Fitzgerald Asked to Dig into Torture Allegations, CHI. SUN-TIMES, Sep. 21, 2007 (Vol. 2, at 233). In December of the same year, the two papers publicized the City of Chicago's decision to simultaneously settle the Hobley, Howard, Orange and Patterson cases. E.g., Fran Spielman & Frank Main, $20 Million Settlement in Cop Torture Case: End of a 'Nightmare', CHI. SUN- TIMES, Dec. 8, 2007 (Vol. 2, at 234-35); Gary Washburn & Jeff Coen, City to Settle Burge Case:

4 Alleged Victims to Get Share of up to $19.8 Million Under Tentative Plan, CHI. TRIB., Dec. 8, 2007, at 1 (Vol. 2, at 239-40).

The SUN-TIMES and the TRIBUNE reported the federal indictment and arrest of Burge in this case on October 21 and 22, 2008. See,Steve Mills & Jeff Coen, Feds Catch up with Burge: Notorious Ex-Chicago Commander Charged with Lying About Torture, CHI. TRIB., Oct. 22, 2008 (Vol. 2, at 249-51); Natasha Korecki, Frank Main, & Carol Marin, Feds Call Jon Burge One Bad Cop: Former Police Commander Arrested in Torture Cases and It's Just the Beginning, CHI. SUN-TIMES (Online ed.), Oct. 22, 2008, at 1 (Vol. 2, at 252-53). On October 27, 2008, the TRIBUNE reported that Burge entered a plea of not guilty. (Vol. 2, at 256). Following the indictment, the SUN-TIMES and the READER published the opinions of two Burge supporters. See Annie Sweeney, Slain Cop's Mom Defends Burge: 'I probably would have done it myself', CHI. SUN-TIMES (Online ed.), Oct. 21, 2008 (Vol. 2, at 255); Jamie Fahey, Letters: Reconsider the Victims, CHI. READER, Oct. 30, 2008 (Vol. 2, at 258). On December 5, 2008, the TRIBUNE reported on the Fraternal Order of Police's decision to pay for Burge's defense in this case. See David Heinzmann & Steve Mills, Police Union Will Pay for Burge Defense: Lawyer Bill for Federal Case Could Reach $1 Million, Dec. 5, 2008 (Vol. 2, at 259). Three days later, the SUN- TIMES ran an editorial piece criticizing that decision. Union Ignoring Facts in Defense of Burge, CHI. SUN-TIMES, Dec. 8, 2008 (Vol. 2, at 260). The TRIBUNE published an opinion piece on the importance of reopening the torture allegations on December 28, 2008. Jonathan Jackson (as spokesman for the Rainbow-PUSH Coalition), Burge Arrest Reopens Torture Allegations, CHI. TRIB., Oct. 25, 2008 (Vol. 2, at 261).

In February 2009, the TRIBUNE reported that federal prosecutors were investigating CPD detectives who had worked with Burge, and the SUN-TIMES and the QUAD-CITY TIMES reported that Illinois Attorney General Lisa Madigan was being criticized by Chicago aldermen regarding her office's decision to send supervision of five of the 25 pending cases against Burge back to the state's attorney office. E.g., Steve Mills & Jeff Coen, Police Torture Inquiry Widens Around Burge: Federal Probe Now Includes Detectives, Sources Indicate, CHI. TRIB., Feb. 4, 2009 (Vol. 2, at 262); Chicago Alderman Wants AG to Prosecute, QUAD-CITY TIMES (Online ed.), Feb. 25, 2009 (Vol. 2, at 264). On March 17, 2009, the TRIBUNE reported that the City of Chicago offered $2.7 million in a wrongful conviction which involved detectives who had worked under Burge. Hal Dardick, Chicago Offering $2.7 Million in Wrongful-Conviction Case, CHI. TRIB., Mar. 17, 2009 (Vol. 2, at 265). A month later, the SUN-TIMES and the TRIBUNE reported that an attorney for Cortez Brown, a former death row inmate seeking a new trial on the basis that he was physically coerced into confessing to the murders of two men in 1990, was seeking the testimony of Burge and another detective under his command. See Rummana Hussain, Lawyer Wants Burge on Stand in Cortez Case: Farrakhan, Pfleger Join Alderman Ed Smith in Showing Support for Ex-Death Row Inmate Who Claims He Was Tortured, CHI. SUN-TIMES (Online ed.), Apr. 14, 2009 (Vol. 2, at 270); Matthew Walberg, Jon Burge Case: Attorneys for Convicted Killer Seeking Retrial Want Retired Police Cmdr. Jon Burge and Former Detective to Testify: Convicted Killer Seeks Retrial, Says Confession Coerced, CHI. TRIB. (Online ed.), Apr. 15, 2009 (Vol. 2, at 271). The most recent article submitted by Burge was published on the TRIBUNE's website on April 25, 2009. Jon Burge Trial Ruling: Judge to Allow Testimony of Convicted Cop Killer Who Died in 2007, CHI. TRIB. (Online ed.), Apr. 25, 2009 (Vol. 2, at 272). It reported this court's April 23, 2009 decision to admit the testimony of Wilson at trial. Id.

LEGAL STANDARD

Federal Rule of Criminal Procedure 21 provides for transfer for trial, ...


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