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Cannon v. Burge

United States Court of Appeals, Seventh Circuit

May 27, 2014

DARRELL CANNON, Plaintiff-Appellant,
v.
JON BURGE, former Chicago Police Lieutenant, et al., Defendants-Appellees

Argued: January 22, 2013.

Page 1080

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:05-CV-02192 -- Amy St. Eve, Judge.

For Darrell Cannon, Plaintiff - Appellant: Ben H. Elson, Attorney, G. Flint Taylor, Attorney, People's Law Office, Chicago, IL.

For JON BURGE, former Chicago Police Lieutenant, JOHN BYRNE, former Police Sergeant, PETER DIGNAN, former Chicago Police Department Detective, Defendants - Appellees: James G. Sotos, Attorney, Sotos & Associates, Itasca, IL.

For TERRY G. HILLARD, Superintendent, former Chicago Police Superintendent, LEROY MARTIN, former Chicago Police Superintendent, Defendants - Appellees: Justin A. Houppert, Attorney, City of Chicago Law Department, Chicago, IL.

For United States of America, Intervenor: Thomas P. Walsh, Attorney, Office of The United States Attorney, Chicago, IL.

Before RIPPLE, ROVNER, Circuit Judges, and BARKER, District Judge.[*]

OPINION

Page 1081

Rovner, Circuit Judge.

This appeal casts a harsh light on some of the darkest corners of life in Chicago. The plaintiff, at the time of the events giving rise to this suit, was a general in the El Rukn street gang, out on parole for a murder conviction, when he became embroiled in a second murder. Among the defendants are several disgraced police officers, including the infamous Jon Burge, a man whose name evokes shame and disgust in the City of Chicago.[1] At issue is

Page 1082

whether the plaintiff, who long ago settled his claims against the defendants, should be allowed to have a second chance to litigate his case, on the grounds that the defendants engaged in such an extensive cover-up of the police torture scandal at the center of this case that the plaintiff was effectively denied his day in court the first time around. The district court held that the settlement precluded further litigation and granted summary judgment in favor of the defendants. We affirm.

I.

In 1971, Darrell Cannon, the plaintiff here, was convicted of the murder of Emanuel Lazar and was sentenced to 100 to 200 years in prison. After serving twelve years of that sentence, Cannon was paroled in January 1983. Approximately ten months later, on October 26, 1983, Cannon found himself behind the wheel of a car, traveling down the Bishop Ford Freeway[2] in Chicago, as one of his fellow El Rukn generals, Andrew McChristian, murdered Darrin Ross in the back seat. Cannon then followed McChristian's directions to take the next exit off the freeway, driving to a field behind the Altgeld Gardens housing complex. There, McChristian and Cannon dumped Ross's body onto the side of a dirt road adjoining the field. Not knowing whether Ross was dead or alive, Cannon then drove McChristian to a pool hall where Cannon picked up his own car and drove home.

A few days later, on November 2, 1983, Cannon was arrested for Ross's murder by three of the defendants in this case, Sergeant John Byrne and Detectives Peter Dignan and Charles Grunhard. These men worked for the Chicago Police Department's Area 2 Violent Crimes division under two other defendants in this case, then-Commander Leroy Martin and then-Lieutenant Jon Burge. Together with police detectives Michael Bosco and Daniel McWeeny, Byrne, Dignan and Grunhard threatened and tortured Cannon until he confessed that he knowingly[3] participated in the murder of Darrin Ross. All of this was accompanied by race-based taunts and threats. Each time Cannon thought he was safely away from his tormentors, he recanted his confession, and each time he recanted, he was subjected to more torture.

Almost immediately after leaving police custody, Cannon recanted his confession again and began to complain about the treatment he received at the hands of these officers. Five days after his arrest, his wife filed a complaint on his behalf with the Chicago Police Department's Office of Professional Standards (" OPS" ). But Byrne, Dignan and Grunhard lied to OPS, and the complaint was dismissed as " not sustained." At his criminal trial in 1984, Cannon moved to suppress his confession on the grounds that it was obtained through torture and coercion. Again Byrne, Dignan and Grunhard as well as McWeeny lied, this time under oath, denying that Cannon had been tortured. The court denied the motion to suppress and Cannon's confession was used at trial. In 1984, Cannon was convicted of Darrin

Page 1083

Ross's murder and sentenced to life in prison.

In September 1986, two years after his conviction, Cannon filed a pro se federal complaint from prison, asserting for a third time that Byrne, Dignan and Grunhard had mistreated him. In particular, he alleged that Dignan beat him on the knee with a flashlight; that Dignan played " Russian Roulette" with him with an apparently loaded shotgun, repeatedly placing the barrel in Cannon's mouth and pulling the trigger when Cannon refused to answer questions; that Grunhard, Dignan and Byrne lifted him up from behind by his handcuffs, causing unbearable pain; and that Byrne pulled down Cannon's pants and shorts and applied an electric cattle prod to his testicles, penis and the inside of his mouth repeatedly over an hour-long period as the officers questioned Cannon about Ross's murder. Cannon sought from each officer " $15,000 in compensatory and punitive damages, plus physical injuries, pain, suffering, emotional and mental distress" as well as other relief the court deemed just and proper. R. 28-2, at 42-48. The court appointed attorney E. Paul Lanphier to represent Cannon. Lanphier deposed Byrne, Dignan, Grunhard and McWeeny and all four continued to lie under oath and deny that they had abused Cannon. Both Cannon and Lanphier suspected that Cannon was not the only arrestee who had been abused by these officers -- indeed, there had been some news reports of other incidents--but they did not know that the abuse against African American men by Area 2 officers was pervasive and occurred with the complicity of Burge. They did not know that many of the same bizarre and sadistic techniques that these officers used against Cannon had also been used against many other African American men who had been arrested in Area 2. Despite their suspicions, Lanphier did not ask the City or the individual defendants about any other victims of the Area 2 officers.

In 1988, Lanphier assessed Cannon's case in light of the facts known to him at the time: Cannon was now a twice-convicted murderer, a long-time gang member, sentenced to life in prison, accusing his arresting officers of torture. Although Lanphier believed that the second murder conviction would be inadmissible at the civil trial, he advised Cannon that the first murder conviction would be considered relevant and admissible. There was no physical evidence to corroborate Cannon's claims and the officers had repeatedly denied the allegations, including under penalty of perjury. Lanphier assessed Cannon's chances of prevailing as slim and advised Cannon to settle for the $3000 nuisance value offered by the defendants. R. 391-7, at 2-4, 6. Cannon accepted his lawyer's advice and settled the suit in February 1988, signing a broadly worded release of his claims against the named defendants as well as the City of Chicago, which was joined for the purpose of settling the case:

In consideration of the hereinafter-indicated settlement and Judgment entered thereon, Plaintiff agrees to indemnify and hold harmless the City of Chicago, its officers, agents and employees including, but not limited to, the remaining Defendant, from any claims, losses, damages or expenses incurred, or which may be incurred, by reason of the incident which was the basis of the litigation.
Plaintiff understands, upon advice of his counsel, and agrees that such Judgment is a final and total settlement of all claims he has, or may have in the future, arising either directly or indirectly out of the incident which was the basis of this litigation, and that such finality is

Page 1084

applicable to the remaining Defendant, the CITY OF CHICAGO, its officers, agents and employees.

R. 28-2, at 38-39 (hereafter, the " 1988 Stipulation" ). After costs and fees, Cannon netted $1247.70. The case against the officers was dismissed with prejudice, and final judgment was entered in favor of Cannon and against the City of Chicago. The 1988 Stipulation was incorporated by reference into the judgment order. R. 28-2, at 37-40; 50-51.

In the meantime, Cannon appealed his conviction. The Illinois appellate court affirmed the denial of his motion to suppress his confession but remanded the case to the trial court for a hearing on the prosecution's use of peremptory challenges to exclude African American jurors. After holding that hearing, the trial court ordered a new trial. People v. Cannon, 293 Ill.App.3d 634, 688 N.E.2d 693, 693-94, 227 Ill.Dec. 1000 (Ill. App. 1st Dist. 1997) (" Cannon I " ). At the subsequent retrial in 1994, the court declined to revisit the issue of the voluntariness of Cannon's confession and once again allowed the confession to be used as evidence. Cannon was again found guilty of the murder of Darrin Ross, and again sentenced to life in prison.

Cannon appealed again and, this time, the court vacated the conviction and the sentence, and remanded for a new hearing on the voluntariness of Cannon's confession. Cannon I, 688 N.E.2d at 694. The court noted that Cannon had presented the trial court with new evidence in support of his motion to reconsider the ruling from the first trial. In particular, Cannon wished to present (1) a police log indicating that his arresting officers had checked out a shotgun on the day of his arrest, contrary to their testimony at his first suppression hearing that they were not in possession of a shotgun; (2) deposition testimony from Byrne and Dignan in a related civil action; (3) photos taken by OPS of the site where Cannon said he was tortured; (4) testimony of sixteen arrestees who filed charges with OPS that they had been tortured by some of the same officers at Area 2; and (5) evidence that cattle prods small enough to fit in a car's glove compartment existed in 1983. Cannon also supported his motion with an offer of proof stating that the defense, if allowed, would have presented the testimony of eleven other men who had been mistreated by some of the same officers who tortured Cannon. Cannon I, 688 N.E.2d at 694-96.

The court concluded that ordinary principles of collateral estoppel should not bar re-litigation of Cannon's motion to suppress because this was no ordinary case. First, the judge who originally ruled on Cannon's motion to suppress in his first trial was Thomas Maloney, himself an ignominious figure in Chicago politics who was later convicted of accepting bribes to fix murder cases during the same time period as Cannon's original trial. See Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Second, Cannon was now prepared to present evidence that the officers who procured his confession regularly used torture to coerce confessions. And third, Cannon had new evidence of coercion that was not available at his 1984 trial. The court found that new evidence and " special circumstances" were well-recognized exceptions to the general rule barring re-litigation of a decided motion, and that both exceptions were relevant in Cannon's case. The court surveyed the evidence that warranted application of the exceptions:

Reports prepared by the Office of Professional Standards of the Chicago Police Department, surveying the alleged systematic abuse of suspects at Area 2 headquarters, were not available to Cannon's lawyer in 1984.

Page 1085

Nothing in the record demonstrates that Cannon's lawyer knew or should have known of the claims of brutality made by other suspects questioned at Area 2. In addition, newly discovered or not, the evidence of 28 other Area 2 arrestees, 16 of them questioned by some of the officers who questioned Cannon, amount to " special circumstances" that justify a new hearing of the motion to suppress.

Cannon I, 688 N.E.2d at 697 (internal citation omitted). In December 1997, the appellate court therefore remanded the case for a new suppression hearing that included the new evidence Cannon wished to present.

In January 2001, after the trial court held a hearing on Cannon's renewed motion to suppress but before the court ruled on that motion, Cannon agreed to plead guilty to the lesser charges of armed violence and conspiracy to commit murder, in exchange for a total sentence of forty years' imprisonment. Cannon stipulated that the witnesses who were called to testify in the second trial would testify consistently at any future trial, and that assistant state's attorney Henry Simmons, who took handwritten notes of Cannon's confession in 1983, would testify in conformance with his prior testimony. Without admitting guilt, Cannon agreed that the evidence presented at the prior trial and the statement recorded by Simmons would be sufficient to constitute proof of guilt of the charges of armed violence and conspiracy to commit murder. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (" An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when ... a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." ). With full credit for the time Cannon had already served, the parties agreed that he would be eligible for release in August 2003.

At some point, it became apparent to Cannon that, irrespective of his plea agreement with the State, the Illinois Prisoner Review Board (hereafter " IPRB" or the " Board" ) had concluded that Cannon was not eligible for release until July 2064, some sixty-one years beyond the date agreed to in his plea. As we noted above, at the time he was arrested for Ross's murder, Cannon was on parole for the 1971 murder of Emanuel Lazar, and had served only twelve years of his 100 to 200 year sentence for that crime. Following his conviction for Ross's murder, in August 1984 Cannon was retroactively declared in violation of his parole in the Lazar case, and his parole was revoked as of his November 2, 1983 arrest date. In February 2003, the IPRB held a hearing at which the Board was advised of the terms of Cannon's plea agreement with the State. The State did not oppose Cannon's parole at that hearing. The IPRB nonetheless refused to release Cannon on parole, and gave no assurances that he would be released prior to July 2064. The IPRB continued Cannon's case for another parole hearing in 2006.

Unsatisfied with that result, in October 2003, Cannon moved in post-conviction proceedings to vacate his plea, contending that he had received ineffective assistance of counsel because his lawyers had not investigated the effect of the plea on the 1984 retroactive revocation of his parole. He also contended that the State had failed to adhere to its side of the plea bargain, and that the plea could not be considered knowing, voluntary and intelligent

Page 1086

under the circumstances. In an April 2004 filing, the State agreed that Cannon had received ineffective assistance when his lawyers failed to investigate the effect of the plea on his parole, and agreed that the plea should be vacated. The State conceded that it too assumed that Cannon would be released in August 2003, but now agreed that any guilty plea in the 1983 case would support revocation of parole in the 1971 case. In order to honor the understanding of the parties at the time of the plea, the State therefore agreed to dismiss the substantive case against Cannon. The State emphasized that it dismissed the Ross murder charges solely to rectify the procedural problem created when neither side anticipated the effect of the plea agreement on Cannon's parole status for the 1971 conviction. The State continued to assert that Cannon was factually guilty of the charges to which he pled in 2001.

In June 2004, Cannon received a full parole revocation hearing before the IPRB. The Board again concluded that Cannon violated his parole in the 1971 case by committing the crime of murder in 1983. The Board stated that it analyzed the evidence without giving any consideration to Cannon's coerced statement to the Area 2 officers except for portions of the statement that Cannon admitted in motions and at trial. The Board first considered Cannon's accountability using the 1983 grand jury testimony of Tyrone McChristian, the brother of Andrew McChristian, as well as Cannon's own sworn testimony.[4] In grand jury proceedings, Tyrone testified that Cannon and McChristian were both " generals" in the El Rukn street gang, that Ross had stolen drug money, that Cannon was intent on carrying out McChristian's plan to seek revenge on Ross, and that Cannon retrieved a gun for McChristian and then drove the car so that McChristian could shoot Ross. The Board found that Cannon's proximity to the murder and his subsequent actions in aiding McChristian to dispose of Ross's body led to only one conclusion: that Cannon was accountable for the murder of Ross, that Cannon voluntarily attached himself to McChristian's plan and that Cannon shared McChristian's intent.

The Board then considered Cannon's accountability based solely on his own testimony, again excluding his coerced statement except to the extent it was admitted by Cannon's other testimony. According to Cannon's own account of Ross's murder, on October 26, 1983, Cannon met Tyrone at a pool hall. Tyrone told Cannon that McChristian wanted to meet him at his girlfriend's house. Tyrone drove Cannon to the house of McChristian's girlfriend, where McChristian and Ross were waiting. McChristian told Cannon that he was meeting some people and wanted Cannon to " watch his back." Cannon, McChristian and Ross then all took a ride in McChristian's car. With Cannon driving, McChristian and Ross argued about drugs and a robbery. McChristian then brandished a revolver and shot Ross twice in the head. A second round of gunfire ensued. Either Cannon or McChristian retrieved a towel from the trunk to contain the blood from the victim's head. Cannon and McChristian then drove to a prairie behind the Altgeld Gardens housing complex and dumped Ross's body in the prairie. Based on this account, the IPRB rejected Cannon's claims that he did not see the gun, that he did not know that McChristian, his friend of nineteen years, had a gun, and

Page 1087

that he did not know that McChristian was about to kill Ross. The Board found Cannon's actions following the murder to be indicative of consciousness of guilt. In particular, Cannon tried to keep Ross's blood from staining the car, helped dispose of the body, left the scene, failed to notify the police, and failed to dissociate himself from McChristian during or after the crime. The Board, therefore, again revoked Cannon's parole.

Cannon then brought suit in state chancery court against the IPRB, asking for immediate release or for a reversal of the Board's revocation decision and a new hearing before the IPRB. The chancery court noted that, although Cannon had entered a guilty plea in 2001, he had not admitted guilt, stipulating only that the factual basis presented by the State was sufficient to support a conviction. The chancery court ordered a new hearing for Cannon before the IPRB, and directed the Board to reconsider its revocation of Cannon's parole without any reliance on Cannon's confession or on Tyrone's grand jury testimony, which Tyrone later asserted was also a product of ...


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