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United States v. Burge

September 11, 2009

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



The opinion of the court was delivered by: 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 to dismiss the indictment pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed. 2d 562 (1967) (hereinafter, "Garrity"), which protects statements made under the threat of discharge from public office from use in subsequent criminal proceedings. For the reasons discussed below, Burge's motion [# 59, 64] is denied.

BACKGROUND*fn2

The allegations of systematic physical abuse and torture during Burge's tenure with the CPD have spanned the last three decades and spawned an array of judicial and administrative proceedings.*fn3 Throughout these proceedings, Burge has consistently denied his participation in and knowledge of such conduct, offering testimony and making statements to this end. Burge now contends that certain of the statements given by him in the course of these proceedings are protected under Garrity,and have impermissibly been used against him by the government in its investigation of the crimes with which he is now charged, requiring the dismissal of the indictment. Because Burge's Garrity argumentarises from the statement he gave to the Chicago Police Department's Office of Professional Standards ("OPS") in 1991, the court begins there.

I. The OPS Investigation

In 1990, the OPS reopened its investigation into the conduct of Burge and two other officers under his command, detectives Patrick O'Hara and John Yucaitis, during a February 14, 1982 interrogation of Andrew Wilson ("Wilson"), who was later convicted of the murder of two Chicago police officers.*fn4 Francine Sanders, an OPS investigator, was assigned to the case. On October 26, 1990, Sanders submitted a report to Superintendent of Police, Leroy Martin, indicating that Wilson sustained injuries while he was held under Burge's command. See Def.'s Mot. to Dismiss, Ex. 10 at 146-47 (hereinafter, "Def.'s Mot."); Def.'s Mem. in Supp. of Def.'s Mot. at 6 (hereinafter, "Def.'s Mem.").*fn5 On May 8, 1991, the CPD served Burge with a document entitled "Notification of Charges/Allegations," which listed Wilson and Sanders as the complainants. Def's Mem., Ex.3. Wilson alleged that he had been physically abused and tortured at Area Two, and that Burge knew of and participated in this conduct. Id. Sanders further alleged that Burge had failed to provide Wilson with prompt medical attention for his injuries. When he received notification of the charges, Burge was also given notice of his administrative proceeding rights:

The law provides that you are to be advised of the following:

1. Any admission or statement made by you in the course of this hearing, interrogation or examination may be used as the basis for your suspension or as the basis for charges seeking your removal or discharge or suspension in excess of 30 days.

2. You have the right to counsel of your choosing to be present with you to advise you at this hearing, interrogation or examination and you may consult with him as you desire.

3. You have a right to be given a reasonable time to obtain counsel of your own choosing.

4. You have no right to remain silent. You have an obligation to truthfully answer questions put to you. You are advised that your statements or responses constitute an official police report.

5. If you refuse to answer questions put to you, you will be ordered by a superior or officer to answer the question.

6. If you persist in your refusal after the order has been given to you, you are advised that such refusal constitutes a violation of the Rules and Regulations of the Chicago Police Department and will serve as a basis for which your discharge will be sought.

7. You are further advised that by law any admission or statement made by you during the course of this hearing, interrogation or examination and the fruits thereof cannot be used ...


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