By G. Flint Taylor
On January 22, 2013, a three judge panel of the Seventh Circuit Court of Appeals heard arguments in the Chicago police torture case of Darrell Cannon versus the City of Chicago, Jon Burge et al. Cannon, who was tortured into giving a false murder confession in 1983 and served 24 years in prison as a result, had settled his civil rights brutality case in 1988 for the paltry sum of $3000. Over the next 20 years, the massive cover-up of the police torture scandal was dismantled, piece by piece, Cannon’s criminal case was dismissed in 2004, and he brought a new suit, alleging that the original settlement was void due to the police defendants’ fraud and conspiracy to cover-up. The suit was based on a 1984 Seventh Circuit decision, Bell v. Milwaukee, a police killing case in which the Court voided another unconscionably small settlement after an extensive police cover up was exposed by the partner of the police shooter 20 years after the shooting.
The City of Chicago aggressively contested Cannon’s suit, pouring more than $1.8 million into Burge and his confederates’ defense. After several years of pretrial discovery, the trial judge, in 2011, granted judgment for Burge, his police co-conspirators, and the City, holding that Cannon had not sufficiently proven fraud to overcome the prior settlement. Cannon appealed, briefs were filed, and the historic argument followed.
Cannon’s lawyer, G. Flint Taylor of the People’s Law Office, set the stage for the argument with his opening remarks, asserting that, almost 30 years after deciding Bell, the Court was again presented with an “extraordinary” police violence case where the victim had been deprived of a “meaningful” and “effective” day in court by a “massive,” “racially motivated” police conspiracy to fraudulently cover-up. He then proceeded to lay out the compelling proof that supported Cannon’s claims of conspiracy and cover-up and explained how his case was therefore clearly controlled by the Bell decision. The Court appeared receptive, but, led by Judge Ilana Rovner, its tenor quickly changed as soon as the City’s lawyer began to argue in opposition:
Judge Rovner: Before you introduce yourself, it seems to me that the City has misread Bell. In both Bell and this case, the determinative fact is not what the Plaintiff knew but what he could not prove because of the cover-up. In each case the extensive cover-ups prevented them from proving it.
After the City’s lawyer offered a response, Judge Rovner continued her pointed inquiry:
Look, if a defendant destroys evidence of wrongdoing and the Plaintiff knows it, does that mean that the more you lie, you cheat, you commit fraud in litigation, the greater your reward for forcing a small settlement?
Judge Rovner then rebutted the City lawyer’s assertion that the police defendants simply denied that they tortured Cannon, stating with an interspersed sigh that “they didn’t just deny, they lied, they cheated, they committed fraud, they committed cover-ups and they did it together, they did it as a group.”
Calling the City’s argument of “no fraud” as “unavailing, to be kind,” Judge Rovner summarized the facts in the record:
They take a man with a prior murder conviction, then they lie, then they torture him into making a statement that leads to a second murder conviction, then they lie about it, then they destroy evidence, then they engage in this incredibly lengthy cover-up with other city officials. . . On what planet does he have meaningful redress in the courts under those circumstances? I mean, of course he was forced to settle unfavorably because the officers and perhaps the City have made it virtually impossible for him to prove his case. You would have us force a settlement procured by defendants that rigged the deck [so] that no Plaintiff could have proven a legitimate claim?
Judge Rovner then dismantled the City’s argument that Cannon was required to ask the defendants during his initial case if they had tortured other suspects:
That astonishes me, that argument [that] he was supposed to ask in discovery “by the way, have these officers tortured anyone else? Is the City helping these officers cover-up other criminal acts?” Was he obliged to ask if they were committing other criminal acts? How do you suppose they would have answered – — “yes, yes we’re criminals?”
Answer (by Counsel for the City): I don’t know . . .
Judge Rovner: Of course you know.
Judge Sarah Barker then suggested that it was not a “question of impossibility” but rather of “complete” “futility” because “police corruption” “basically . . . deprived [Cannon] of access to the courts.” Judge Rovner, then returned to the City’s argument that Cannon should have further questioned the police conspirators:
So why is Burge in prison now, bottom line, why do you think he is in prison now? What was it that put him in prison?
Answer (by Counsel for the City): He was convicted of committing perjury for denying acts of torture, yes.
Judge Rovner: Exactly.
Judge Rovner then addressed the question of the settlement’s unconscionability:
Look, at the time he settled, there was no way for him to begin to prove his case for torture, much less prove the cover-up. He was in prison for murder, based on the confession he . . . has alleged from the beginning was the result of torture, his bargaining position was absolutely non- existent under the circumstances.
Judge Rovner then returned to the symmetry between Cannon’s case and Bell decision:
Under Bell [Cannon], it seems to me, has shown exactly what he needs to show and any other result would mean that defendants could engage in a decade long cover-up with impunity. [Cannon] might “know” . . . that the police are lying but that is a great distance from being able to prove that that’s the case. . . I’m one of three, but it seems to me that if the defendants successfully suppress the truth in an effort to force an unfavorable settlement, they should not be rewarded for the success of their scheme when the truth eventually comes out. . . [N]o matter what the Plaintiffs knew in each of the cases, there were extensive criminal cover-ups that made it virtually impossible for them to prove their cases. . . . I think it’s a miracle that it was ever proved, a miracle.
Perhaps reflecting on the multi-million dollar settlements that a number of Burge victims have recently obtained from the City, Judge Barker returned to the paltry settlement given to Cannon in 1988:
Don’t you think, given all the things you know now and all the corruption that came to light . . . don’t you think it’s a thin reed on which you’re attempting to hang resolution to say, given all of that, $3000 is a fair settlement – — don’t you think that’s sort of a thin reed?
After the City’s lawyer attempted to minimize the value of Cannon’s case, Judge Barker capped the City lawyer’s 20 minute ordeal with this wry commentary:
Judge Barker: So you think there’s a chance he might settle for $3000 again?
Counsel for the City: (Stammering a response)
Judge Barker: Rhetorical. Rhetorical.
The Court took the case under advisement and is expected to issue a written decision within the next few months.
Taylor is one of Darrell Cannon’s lawyers and argued the case on his behalf in the Seventh Circuit. He is a founding partner of the People’s Law Office, which is a Chicago civil rights law firm, whose attorneys have been fighting for victims of police torture, brutality, wrongful convictions, false arrest and other government abuses for over 40 years. For more information on police torture and other topics, visit peopleslawoffice.com.