Burge torture taxpayer tab eclipses $210M — and counting

This article was originally published on InjusticeWatch

Follow this link to read all of Flint’s taxpayer charts that were referenced in this article.

By Flint Taylor | June 14, 2022

Fifteen years ago, my colleagues at the People’s Law Office and I were engaged in a legal and political battle with the city of Chicago over police torture. Then-corporation counsel Mara Georges was threatening to renege on a settlement agreement that had been reached on behalf of several torture survivors who had been awarded innocence pardons by former Gov. George Ryan.

Seeking to bolster our public case that a settlement was more fiscally responsible than continuing to fight the individual lawsuits in court, we filed a Freedom of Information Act request for attorneys’ fees and costs paid to private counsel to defend Jon Burge, his band of henchmen, and the city in these cases. The total to that point was $10 million. Add to that the $7 million that Cook County taxpayers kicked in to finance a four-year investigation of Burge torture by special prosecutors that was widely condemned as a whitewash, and the tab for police torture in Chicago, as of September 2007, was roughly $17 million.

Fast-forward 15 years, and the city and county are repeating the same approach to police torture cases. The city is currently fighting seven lawsuits filed by torture survivors in federal court. And the county’s special prosecutor continues to fight tooth and nail to maintain convictions that were obtained through alleged torture.

The only thing that has changed is the total cost to taxpayers, which has now ballooned to more than $210 million — and counting.

How have we reached this figure? Through public-records requests and available data, we tallied the total amount paid in defense and special prosecutor fees, settlements, state Court of Claims and Torture Commission expenditures, and pensions to alleged torturers. This figure doesn’t include the unknown amount that the federal government expended in successfully prosecuting Burge and later investigating, but refusing to indict, his two self-anointed “right-hand men.”

A pie chart showing the amount paid for settlements, verdicts and reparations ($108.2 million), pension payments ($38.7 million), Chicago lawyers' fees ($37.5 million), Cook County lawyers' fees ($19.5 million) and state torture commission and court of claims ($7.9 million).

City of Chicago ‘pinstripe patronage’ ($37.5 million)

“Pinstripe patronage,” so dubbed by legendary Chicago attorney R. Eugene Pincham, has long been an important aspect of the city and county’s response to police violence litigation. In the 1970s, they collectively expended more than $2 million in defense of Cook County State’s Attorney Edward Hanrahan and the Chicago police officials who planned and carried out the fatal raid on the apartment of Black Panther Party leader Fred Hampton. In the 1980s, the Chicago City Council appointed former prosecutor William Kunkle to represent Burge in Andrew Wilson’s federal torture case, and the parade of private lawyers in the Burge cases has continued to this day.

Read More

Burge squad gone, but the cases live on

Demond Weston’s petitions for relief were routinely denied. But that was before the full extent of Chicago police torture under disgraced commander Jon Burge was known, and before the three Burge subordinates who questioned Weston were accused of torturing confessions out of suspects in a series of other cases.

The total pinstripe patronage now stands at $37.5 million. Three enterprising lawyers, Andrew Hale, Terry Burns, and James Sotos, and their associates are by far the leaders in collecting fees to defend the city in police misconduct lawsuits. Collectively, they have taken home $21 million in defense of the Burge torture cases (and, as remarkably, $116 million in total taxpayer-funded fees and costs from 261 police misconduct cases since 2004).

Cook County special prosecutors and ‘pinstripe patronage’ ($19.5 million)

The Cook County Board and Cook County State’s Attorney’s Office have also practiced pinstripe patronage by hiring outside lawyers (often former prosecutors) to represent the county in the Burge cases. In 2002, Circuit Judge Paul Biebel, in charge of the court’s criminal division, appointed two former state’s attorneys, Edward Egan and Robert Boyle, to investigate the mounting allegations of torture and abuse by Burge and his crew. Four years and $7 million later, they finished their investigation with a report that exonerated former State’s Attorneys Richard M. Daley and Richard Devine while invoking the statute of limitations as a rationale for not returning any indictments.

In 2009, another special prosecutor was appointed, this time to resist the claims of torture that were being heard in the Cook County criminal courts, a task that the private law firm headed by Michael O’Rourke took on with a vigor that has rivaled that of their city defense brethren. The county has paid these private lawyers more than $8.5 million since 2009, according to my calculations based on the monthly meetings of the Cook County Finance Committee (curiously, the running total posted by the committee in its monthly agenda is about a million dollars less).

The county also pays private lawyers to represent former prosecutors who are sued for their alleged roles in the conspiracy to torture and cover up. Together with settlements in those cases, the county has paid another $4 million in public monies. Thus, the county has expended at least $19.5 million in opposing claims of torture in the criminal courts and otherwise furthering the cover-up of the Burge torture scandal.

Pensions to Burge and his alleged co-conspirators ($38.7 million)

Despite public outcry, Burge continued to collect his pension after he was fired by the Chicago Police Department, convicted by a federal jury for lying about torture, and served 54 months for perjury in Butner federal penitentiary. Those payments had amounted to more than $900,000 when he died without beneficiaries in September 2018. His two foremost “right-hand men,” John Byrne and Peter Dignan, who have been found to be torturers by Office of Professional Standards investigators and a federal civil jury, have collected an additional $2.65 million. When all the detectives and supervisors who have been found or repeatedly accused of torture and cover-up are included, the number balloons to $43 million.

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Several Area 2 commanders and police superintendents — most notably Phil Cline, LeRoy Martin Sr. and Fred Rice — also played important roles in the torture scandal, and their pensions add another $5.3 million to the mix. All totaled, these pensions amount to $48.37 million, approximately 80% of which has been funded by the city.

City settlements, verdicts, and reparations ($108.2 million)

While spending taxpayer money without compunction to defend police torture, city leaders have shown an opposite attitude when addressing the damage that the Burge torture scandal has visited on its African American victims. After its unsuccessful attempt to renege on the 2006 group settlement, city lawyers during the Richard M. Daley and Rahm Emanuel administrations employed a similar strategy in almost all the successive cases that were brought by exonerated torture survivors — fight the case tooth and nail, racking up million of dollars in fees, and then reluctantly settle the case as the trial date neared. After Emanuel, under intense pressure, agreed to a historic reparations package that included financial compensation to 57 torture survivors who had no legal recourse and made a full-throated admission of culpability, one would have thought that the days of the city insisting in court that there was no systemic torture had finally come to an end.

Read More

The Stanley Wrice Jury Returns

Civil rights lawyer Flint Taylor questions why the Lightfoot administration has hired lawyers who aggressively challenge in court the credibility of defendants’ contentions they were tortured into confessing by members of the crew of former Chicago police commander Jon Burge.

Unfortunately, Mayor Lori Lightfoot, in stark contrast to her repeated public condemnations of the pattern and practice of torture under Burge, has doubled down on the city’s defense of police torture. In 2020, for the first time since 1989, the city took a police torture case to trial, defending notorious Burge henchmen Byrne and Dignan in the Stanley Wrice case. The jury handed the city a resounding defeat — a $5.2 million verdict. After blustering that it would appeal, the city quietly settled last year for just over $6 million.

Since 2005, the city has now settled 19 cases for a total $101.25 million. When the $5.5 million in reparations and the $1.4 million obtained in the 1990s are added, the total awarded adds up to $108.15 million, with at least seven cases still pending.

State torture commission and court of claims ($7.9 million)

In 2009, the state of Illinois passed the Torture Inquiry and Relief Commission Act, thanks to the organizing of Black People Against Police Torture and state legislators Kwame Raoul and Art Turner. The TIRC Act provided for administrative review of Burge-era police torture cases and empowered the commission to send meritorious claims of torture back to the Cook County criminal courts for new hearings. The commission, whose scope has subsequently been expanded, has sent numerous cases back to the courts, and many survivors have been afforded new trials. To date, the TIRC has cost state taxpayers $4.5 million.

The state Court of Claims is tasked by law to award a legislatively determined amount to those Illinois prisoners who were wrongfully convicted and were subsequently determined to be innocent. To date, 16 Burge torture survivors who have received a judicially awarded certificate of innocence or an executive innocence pardon have received a combined $3.4 million from the Court of Claims for a total of 378.5 years of wrongful incarceration. This figure does not include the million of dollars expended to house these innocent men.

Seven pending police torture cases

The total expenditures are staggering. And the end is not in sight.

Seven Burge-era torture survivors are currently seeking damages in federal court — all but one of them have been declared innocent after decades in prison. To date, Lightfoot, the State’s Attorney’s Office and the Cook County Board have lawyered up, committing untold additional millions to continue defending the indefensible.

Three of the cases merit special mention. Robert Smith, James Gibson, and Jackie Wilson spent a collective 98 years behind bars and have been found to be innocent of the crimes for which they were convicted. Not only have they sued their alleged torturers and the prosecutors who allegedly collaborated with them, but they also have sued the city for its admitted pattern and practice of torture under Burge.

Read More

‘Who is James Gibson?’ Exonerated Chicago police torture survivor reflects on identity, faith, and reentry after 29 years in prison

Gibson, 54, spent nearly 30 years behind bars after he says he was beaten into confessing to two 1989 murders. In an essay, Gibson recounts how his wrongful conviction and long fight for freedom robbed him of his identity, and how he’s trying to move forward.

In Smith’s case, one of the defendants is Cline, who replaced Burge as the Area 2 crimes lieutenant in 1986 and later ascended to become the superintendent. According to Smith’s allegations, Cline did nothing to investigate or stop the pattern and practice of torture but rather perjured himself to cover for one of the detectives who physically abused Smith. Cline, now the executive director of the Chicago Police Memorial Foundation, has denied the allegations.

In the Gibson case, the city’s pinstripers have followed a well-worn path: They moved to bifurcate the pattern and practice claim from the underlying torture claims to avoid admitting in court what the city’s policymakers have repeatedly admitted publicly. The judge denied their motion and will now decide whether to grant summary judgment on the issue of whether there was a policy and practice of torture — a motion, supported by an amicus brief signed by 47 business and civic leaders, which I hope will hoist the city on its own policymakers’ petard.

In the Jackie Wilson case (Full disclosure: I am one of his lawyers), a parade of prosecutors — from the assistant state’s attorney who had been previously found by special prosecutors Egan and Boyle to have lied when he denied his involvement in the torture to the prosecutors who wrongfully prosecuted Wilson three separate times — are named as conspiring co-defendants. Several of these former prosecutors are now the subjects of another special prosecutor’s investigation into their alleged perjury and obstruction of justice. Wilson is not only armed with a certificate of innocence but also with detailed findings by the criminal court judge who ultimately dismissed his case that he was tortured as part of the pattern and practice at Area 2. So far, the city and county’s response, no doubt influenced by Cline and the Fraternal Order of Police, has been to double down with eight sets of private lawyers who are throwing all sorts of highly questionable arguments at the wall, including a frivolous challenge by one of the prosecutor’s lawyers to the TIRC’s right to refer meritorious cases to the criminal courts.

It is now 50 years since Burge and his crew tortured their first Black victims, yet the city and its mayor, aligned with the Fraternal Order of Police, and the county and its state’s attorney, aligned with old-guard prosecutors who reigned under Daley, Devine, and Anita Alvarez, continue to deny, obstruct, and spend taxpayer dollars in state and federal court in an unending and unconscionable effort to deny freedom and compensation to those torture survivors who so richly deserve some modicum of justice.

Until the political powers that be remove themselves from the wrong side of history, the Burge torture scandal will drag on, and the taxpayers will continue to involuntarily fund the torture deniers who are responsible for this shameful chapter of racist police and prosecutorial violence and cover-up.

Flint Taylor is a founding partner of the People’s Law Office in Chicago and has represented dozens of clients in torture and other police misconduct cases. He is the author of “The Torture Machine: Racism and Police Violence in Chicago.”

FATHER OF JOSEPH LOPEZ FILES CIVIL RIGHTS SUIT

The father of Joseph Lopez, and his attorneys, Flint Taylor and Ben Elson of the People’s Law Office and Greensboro attorney Graham Holt, have today filed a Federal Civil Rights lawsuit against Greensboro police officer Matthew Hamilton, and the City of Greensboro for Hamilton’s fatal shooting of Joseph Lopez on November 21, 2021.
       The complaint, which was drafted after attorney Holt obtained a Court order and viewed the GPD body worn camera (BWC) footage of the shooting, alleges that

  • without justification, Defendant Hamilton released his police dog into the room where Joseph was sitting.
  • The dog unjustifiably attacked Joseph who yelled out in distress
  • Seconds later, Defendant Hamilton walked through the door, pulled his handgun from his holster, stepped into the room, and without saying anything, shot Joseph once square in the face with his service handgun
  • Joseph died at the scene as a result of the hollow-point gunshot wound.
  • Immediately after fatally shooting Joseph Lopez square in the face, Defendant Hamilton exclaimed “Oh s**** . . . f***.”
  • Joseph was unarmed, was sitting in a chair approximately 15 feet away from Hamilton, he made no verbal or physical threats to Defendant Hamilton or others, and presented no immediate danger to Defendant Hamilton or others.
  • Hamilton and his fellow officers engaged in a cover-up of Hamilton’s shooting which the medical examiner’s investigator nonetheless classified as a “homicide/murder.”


         The complaint also names the City of Greensboro on the basis that the GPD had in place several related policies, practices, and customs, including

  • An unconstitutional pattern and practice of using excessive and deadly force disproportionately against persons of color;
  • Failing to properly discipline GPD officers who engage in excessive and/or deadly use of force and by otherwise publicly covering-up the true nature of these incidents;
  • Failing to properly train and supervise GPD officers in the specific areas of use of canines, use of deadly force in circumstances when a citizen is unarmed and presents no danger to himself, the officers involved, or any other person, and in de-escalation tactics.

               Chicago attorney Flint Taylor, on behalf of Joseph’s father, called out the GPD and the Guilford County District Attorneys’ Office for their failure to act in response to this egregious police shooting: More than six months after this homicide-murder, It is outrageous that officer Hamilton remains on the police force. He should be fired for unjustifiably taking an innocent man’s life. He should be criminally charged by the District Attorney, and the City of Greensboro should take whatever steps are necessary to make the BWC videos available for the public to see for themselves what happened on November 21, 2021.

To learn more about this case read the Triad City Beat article.

A Tribute to Iconic People’s Lawyer Dennis Cunningham (1936-2022)

By Flint Taylor

PLO Office 1976

On March 5, 2022, Dennis Cunningham, who was the epitome of a true and uncompromising people’s lawyer, transitioned peacefully at his son’s home in Los Angeles, California.

Dennis was a unique and brilliant human being, who proudly wore his radical politics on his sleeve and never shied away from writing about, speaking on, or putting into action his passionately held and thoroughly analyzed beliefs.

At the age of fifteen Dennis attended the University of Chicago as part of a Ford Foundation program for students who had completed two years of high school. After graduating, he traveled around Europe for several months in a battered Vespa, going over the Alps and the Dolomites to Rome, hanging out with numerous people, including jazz musicians, most notably saxophonist Dexter Gordon. He worked as a copyboy for the Chicago Sun Times, worked as a reporter for a small Iowa newspaper, and returned to Chicago to be involved in the starting of Chicago’s famed Second City, where he worked as a bartender and improv actor.

Inspired by the 1963 March on Washington, which he called “the engine of my enlightenment”, Dennis went to work for the City of Chicago’s Human Relations Commission, investigating housing discrimination, while attending Loyola of Chicago’ Law School at night. He left the City job when he realized, in the wake of Chicago Mayor Richard J.  Daley’s response to Dr. King’s 1967 march for open housing, that he was working “for the wrong side.” He was sworn in as a lawyer in November of 1967, just in time to represent persons arrested in the uprising that followed the assassination of Dr. King and the Chicago police riot at the 1968 Democratic National Convention. As Dennis recently described it:

a zillion people got busted [at the convention]. Three weeks later [attorney] Ted [Stein] and I are sitting there, the two of us, and everybody left town, and we had like 300 cases. . . I started going to court. I had really good luck then because I got to try a lot of cases, and they were all bench trials.

Shortly thereafter, filmmaker Howard Alk introduced Dennis to Fred Hampton and Bobby Rush, who were starting the Illinois Chapter of the Black Panther Party. Soon after that, Fred requested that Dennis represent him in a multi-defendant mob action case that arose from a demonstration against a segregated swimming pool in Fred’s home town of Maywood, Illinois. As Dennis described the experience:

This guy, Ivory (a co-defendant) was represented by (notable Black attorney) James Montgomery, who I vaguely knew. But there he was, and I’m like thank goodness I have someone to watch what he does, and have half a clue as to what I’m supposed to do, and that’s the way it went. . . I don’t have a lot of memory about how the trial went except that I gave a rousing closing argument, which Fred really liked, that sounded really good. Montgomery later acknowledged that it was good, and we got a not guilty, that was really sweet. A big relief I’ll tell you that. I sure didn’t want to lose that case.

At about this time, Dennis was talking to two other young lawyers, Skip Andrew and Don Stang, about starting a law collective, which they decided they would “boldly” name the People’s Law Office. With Fred Hampton and the Black Panther Party, Cha-Cha Jiminez and the Young Lords, and SDS members as clients who were regularly subjected to arrests and police violence, Dennis, Andrew and Stang, together with attorney Jeff Haas, and law students Seva Dubuar, Flint Taylor, Ray McClain and Jack Welch, opened the People’s Law Office in August of 1969.

When the Chicago police murdered Fred Hampton and Mark Clark in a pre-dawn raid in December of 1969, Dennis took a leading role in coordinating the legal and political effort that the People’s Law Office, the Panthers, and the Black community of Chicago mounted to expose the lies that the raiding police and the conspiring Cook County prosecutors were loudly trumpeting in the media and in the courts. A few years later, the PLO, lead by Dennis, Haas and Taylor, undertook the Herculean task of uncovering and exposing the FBI and its Cointelpro program’s central role in the assassination of Fred Hampton, a legal and political battle that spanned more than a decade and included an 18-month Federal civil rights trial.  As Taylor described Dennis’ role:

He was an advisor, a mentor, an inspiration; he always had the big picture, he always thought about, and knew about what one move would lead to with regard to the next move . . . his involvement was crucial to our plotting out and making our 13- year fight to expose the FBI’s role in the assassination.

Also in the early 1970s, Dennis became involved in the 30-year struggle to defend the Attica Brothers and to expose the truth in the wake of the 1971 prison rebellion and the law enforcement massacre that followed. Michael Deutsch, who was recruited to the People’s Law Office in 1970 and worked side by side with Dennis during the series of criminal and civil legal battles, incapsulated Dennis’ leading role:

Dennis had the unique ability of bringing the political essence to the courtroom, not only in court but also in his written advocacy. He was a master at capturing the political nature of the case. For the 30 years we worked on Attica, Dennis was a key person in organizing the Brothers, in putting forth the Brothers’ position, in helping to maintain unity among the Brothers. He related to the Brothers in a way they could trust and know that he believed in their struggle.

In Chicago, Dennis also represented numerous leaders and members of the SDS-Weathermen, and Rising Up Angry, and later provided counsel to arrested FALN members and Palestinian liberation hero Rasmea Odeh. One of the most famous of those clients, Bernardine Dohrn, eloquently linked Dennis’ acting background to his unique lawyering skills:

I picture him as lanky redheaded hipster, coolly unlawyerly, Darrow returned as Nelson Algren. Dennis was a performance of understated defiance, hurling himself into history on the side of the dispossessed. Dennis does law as the theater of improv. He was an early practitioner of the disciplined art of spontaneity, schooled in the improvisational acting techniques of Viola Spolin and Paul Sills at Second City and the Compass Players. Perhaps Dennis is the singular fusion of improv and the practice of law, taking the drama of legal performance into the uncharted territories of jazz riffs and invention. His skills of listening, clarity and confidence, of wit and speed, are seen in today’s progeny of poetry slams, hip hop and rap performances.

In the early 1980s, Dennis moved to San Francisco where he continued his career as a people’s lawyer, while maintaining a close working and comradely relationship with the People’s Law Office. With other Bay area lawyers, he represented protesters who were subjected to mass arrest at the 1984  Democratic Party convention; during anti-nuke actions at the Livermore Laboratory; at anti-apartheid demonstrations; and at Central American solidarity actions. He also represented folks arrested during the police sweep of Castro Street in 1987; at the Rodney King verdict protests in 1992; and during actions by Food Not Bombs, Act Up, and others. Dennis also defended classical violinist Nicholas Leiser, who persisted in playing his violin in BART stations despite repeated arrests, and brought a case that established the right of musicians to play in such public places. After defending Religious Witness with the Homeless for multiple sit-ins, leading Sister Bernie Galvin of Religious Witness called Dennis “the world’s greatest lawyer.” Remarkably generous in practicing people’s law, he represented numerous prisoners without fee, and was a charter member of the Fleagle Aid group that dispensed free legal advice at a Berkeley flea market during the late 1980s.

 In 1992, Dennis and Ben Rosenfeld brought a case against FBI agents and Oakland police officers involved in the frame-up and media smear of Earth First! activists Judi Bari and Darryl Cherney, after a car-bomb assassination attempt against Judi in May 1990. The attack came at the start of Redwood Summer, a planned season of mass protest and direct action against the destruction of old-growth forests. Dennis and Ben were part of a legal team that brought the case to trial in 2002, and won a $4.4 million verdict with eighty percent of the award assigned to plaintiffs’ first amendment claims that the sensational false arrest after the bombing was a latter-day Cointelpro operation. Dennis’ youngest daughter, Bernadine Mellis, documented the Bari case and Dennis’ role in it in the award-winning film The Forest for the Trees.

Following the Bari case, the legal team was recruited to represent plaintiffs in the “pepper spray” case, where locked-down forest-protection protesters in Humboldt County had refused orders to unlock themselves, and had pepper spray daubed in their eyes by police. After two hung juries, a third jury compromised on a 2005 verdict for nominal damages of one dollar per plaintiff. A later settlement of the Plaintiffs’ claim for attorneys’ fees brought the case to a final resolution. In typical Cunningham fashion, Dennis shared his hard-earned fee with his clients.

Dennis, a career-long active member of the National Lawyers Guild, was one of the originators of the Guild’s National Police Accountability Project, and was honored first in Boston by the national Guild, and later by the Guild’s San Francisco chapter who awarded him the 2007 Spirit of Justice Award. Importantly, he was also supported without fail by his remarkable family, particularly including his daughters Delia, Miranda and Bernardine, and his son Joe.

As the tributes continue roll in from clients, friends, colleagues, and so many others whose lives Dennis touched, former People’s Law Office lawyer Jeffrey Haas aptly summed up Dennis’ legal career:

In court and in his writing Dennis was brilliant, imaginative, a visionary, often histrionic, and a passionate defender of many Movement leaders and causes.

He was, without a doubt, a true people’s lawyer.

Note: the author gratefully acknowledges the use of information from the Anti-Imperialist News article of March 7, 2022 entitled Dennis Cunningham – transitions at the age of 86 on March 5 as well as other interviews, tributes and collective recollections.

In Dennis’ memory, his family has organized a donation pool via the National Lawyers Guild to the Water Protector Legal Collective: www.nlg.org/donate/waterprotectorlegal/

NLG Convention 2013 San Juan Puerto Rico

The Passing of Dennis Cunningham

From the People’s Law Office Family,

Dennis Cunningham, our dear friend and 50 plus year comrade in the struggle for justice and human rights, has passed away. He was an inspiration for, and one of the founders of, the People’s Law Office, and a mentor and role model to all of us and to many others.

He represented with creativity and militancy, Fred Hampton and many other Black Panthers, the Attica Brothers, Judy Bari, Puerto Rican independentistas, Rasmea Odeh, Geronimo Pratt and many others. He brought his improv experience at Second City to the courtroom and to his brilliant written advocacy.

Dennis  was one of a kind, and will be deeply missed by all those who knew him and loved him. Special condolences to his wonderful children, Delia, Joe, Miranda and Bernardine, his three grandchildren, his brother Robbie and his nieces and nephews. 

Rest in Power our good Brother

La Luta Continua!

Statement by the Marcus Deon Smith Legal Team

As a result of much blood, sweat and tears by the Marcus Smith family, community activists, and the Smith legal team, the Greensboro City Council voted last evening to settle the Marcus Deon Smith case by releasing the following joint statement:

The City of Greensboro and the family of Marcus Deon Smith have reached an agreement to resolve the lawsuit brought by the Estate of Marcus Deon Smith. Importantly to these parties, the total settlement of $2,570,000 (the majority of which will be paid by the City of Greensboro and the remainder by Guilford County) will financially benefit both the parents of Marcus Deon Smith and his children, and will formally acknowledge with a commemorative plaque that Marcus Deon Smith’s life mattered. These parties will soon request judicial approval of the settlement and dismissal of the lawsuit, without any findings of wrongdoing or liability. After the settlement is concluded, these parties intend to move forward in the spirit of respect and reconciliation.

While the details of the agreement are still confidential,we on the legal team and on behalf of the Smith family want to thank the activists of Greensboro and all those of goodwill in the Greensboro community for standing shoulder to shoulder with us in this long struggle for transparency and justice in the Marcus Deon Smith case. We are gratified that this agreement will honor Marcus’s deep love for his children and that the City of Greensboro will formally recognize that Marcus Deon Smith’s life matters.  

The Smith Legal Team 
Flint Taylor and Ben Elson of the People’s Law Office and Graham Holt 

Free Bernina Mata!

On Wednesday, Bernina Mata’s freedom team filed a Petition for Executive Clemency on behalf of Bernina Mata with the Illinois Prisoner Review Board. Anchored by Bernina’s long-time attorney Joey Mogul, along with Rachel-White Domain of the Illinois Prison Project, Love & Protect, American Friends Service Committee–Chicago, and a third year law student from NYU. We are calling on Governor Pritzker to commute Bernina’s sentence and bring our friend home. To learn more about Bernina’s case read the Injustice Watch article, and go to FREEBERNINA.com to find out how you can support Bernina’s clemency. #FreeBernina!

LIFETIMES OF LEGAL ACTIVISM: THE ATTICA LAWYERS 50 YEARS LATER

In the wake of the deadliest prison riot in U.S. history, a group of radical, young lawyers banded together to defend the inmates. It became a lifelong commitment, and an experience still profoundly affecting their lives.

This article was originally published in The News Station on September 9th 2021, by Gabriel Pietrorazio. Follow this link to read the full article.

GLOBAL WAR ON TERRORISM AND COUNTERTERRORISM AT HOME

This speech Initially was presented on August 25, 2021 at a gathering of peace groups in Chicago, IL by People’s Law Office Attorney Michael Deutsch

Next month there will be remembrances and memorials across this country about the people who lost their lives here on 9/11. It would appropriate and necessary that we also reflect on the illegal invasion and occupation of Afghanistan and Iraq and the unspeakable deaths and destruction caused by this Global War on Terror [GWOT] – over 1 million Iraqis; 300,000 Afghanis;80,000 Pakistanis; and countless more in Yemen, Somalia, Libya, Syria, and Niger dead, and more we don’t even know about.

Today, I want to focus on the other aspect of this forever war.  We can see very clearly now over the last two decades, that it was not terrorism, but U.S. counterterrorism/insurgency, that has upended fundamental U.S. constitutional rights and international human rights law, and in many ways has created the situation which threatens the fabric of our so-called fragiledemocracy. In the 60’s the anti-war movement called for bringing the war home. Now in some perverse way we have brought the GWOT home.

First let me be clear, if anyone has any doubt, the policies and practices of counterterrorism were and are bipartisan, supported and expanded by presidents and members of both political parties. In fact, in 1996 even before 9/11, Clinton — supported by Congress (91 to 8) — passed the “Anti-Terrorism and Effective Death Penalty Act,” described as an “act to deter terrorism.”  It remains today (with higher penalties) one of the main legal structures to prosecute and imprison Muslims, Palestinians opposing Occupation, and others resisting U.S supported oppressive governments. Under this law the Secretary of State is empowered to make a list of Foreign Terrorist Organizations (FTO) with a limited right to challenge such designation. It also criminalizes any act that is considered to provide “material support” for such a designated group (there are several hundred on such a list) which includes First Amendment activity (charitable giving, providing human rights training or assisting groups making claims of human rights violations) if considered “under the direction of or in conjunction with an FTO,”  with penalties of up to 20 years in jail.  The designated FTOs consisted of only groups that oppose U.S. occupation or policies, or authoritarian allies of the U.S, ignoring those that were clearly involved in terrorism like the Israeli Defense Force[IDF], the Mujahedin-e-Khalq [MEK] or even Israeli settler groups.

 Under this law, the government need not show that such support was for acts of violence or otherwise illegal acts. For one example, the leaders of the Holy Land Foundation, which was the largest U.S. based Muslim charity supporting humanitarian needs throughout the Middle East, including Palestinians living on Occupation, were sentenced to up to 65 years in prison after two trials in Texas. Hundreds of others, mostly Muslims living in the U.S., have been imprisoned under this statute.

Days after 9/11, Congress passed the “Authorization for the Use of Military Force” [AUMF] against those involved in 9/11, without naming a specific enemy or geographical or temporal limitations. This authorization continues in effect today. This has been interpreted by the government to extend not only those involved in 9/11, but what it characterized as “associated forces.” In 2002 the Congress passed another authorization prior to its invasion of Iraq. This overbroad interpretation gives the government a blank check to use military force Libya, Somalia, Niger, Iran, or anywhere else who were clearly not “associated forces,” thus emasculating Congress’ power to declare war and allowing for endless wars. It is believed that since 9/11 U.S. military force has been used in 19 different countries.

 After the military authorization, Bush moved swiftly to carry out the military invasion of Afghanistan, ostensibly to capture Osama bin Laden and Al Qaeda, who escaped to Pakistan. Hundreds of Afghanis were captured and sent to secret U.S. black sites, or were sent to other countries to be horrifically tortured, under what was denominated as “extraordinary rendition.”

In addition, illegal secret surveillance was conducted, seizing the contents of millions of phone calls, and other communications from abroad, in violation of Constitution and without out authorization of the FISA law created in 1978 which required approval of all foreign intelligence by a special court with secret proceedings. 

 In order to avoid federal and military law prohibiting torture, to say nothing of the Constitution, Bush had his lackeys in the OLC (John Yoo, now a law professor and Jay Bybee, a judge on the CA 9th Circuit) to define torture as “causing organ failure, death or irreversible psychological damage.”     Those captured and tortured (many totally innocent) who were perceived as high value detainees were then sent to Guantanamo prison, an occupied Cuban territory, and detain indefinitely without charges. As part of the WOT hundreds more were captured after the invasion of Iraq, under the lie that Sadaam was involved with 9/11, and had weapons of mass destruction, were imprisoned at Abu Ghraib in Iraq where they were humiliated by soldier guards forced to be nude in front of female soldiers and physically and repeatedly abused and forced feed to stop the hunger protests

Within two months of 9/11, the 300 page U.S Patriot Act (was it already drafted before 9/11?) was passed, legalizing broad unconstitutional powers of surveillance, that up till then had been done secretly in a program not even known to many members of NSA, called Stellarwind. The Act created powers to secretly spy on U.S. citizens and collect billions of metadata phone records (the numbers, dates, and names of the senders and receivers of every phone call made in the U.S. and abroad. Shockingly, Director Michael Hayden, was quoting as saying, “We kill people based on metadata.”

The Act also authorized National Security Letters, whichempower  federal agents to obtain private telecommunications and customer records held by banks and other financial institutions, and business records of Americans, without judicial authority, and which gag victims of such searches, prohitibing them from speaking publicly about it. In challenging any judicial oversight to surveillance, William Barr, then general counsel for Verizon, stated that the FISA court was too restrictive and that judges were not competent to make decisions about surveillance. 

The Act also permitted physical or electronic searches called “sneak and peek,” which allowed for agents with a warrant to enter a home in the absence of the resident or seize telecommunications and delay in notifying the target of the searches.  In addition, under Section 702 of Patriot Act, all data collected from social media platforms (Google, Facebook, Microsoft) (Surveillance Capitalism) were authorized to be automatically turned over to the NSA.   

In addition, the government was allowed to invoke the States Secrets Privilege to prevent any civil suits that challenged torture or surveillance. By 2012 the FISA Court was bullied into holding that collection of metadata about phone calls was legal under FISA, but the secret taping of the contents of phone calls was still going on. 

At the same time the shockingly narrow definitions to condone torture and secret surveillance were being carried out, there was growing anti-Muslim campaign in the U.S. The Islamophobes were fanning the flames of fear and hatred. The FBI and Security State focused on Muslims living in America. The FBI organized 15,000 informants dedicated to infiltrating the Islamic community centers, Mosques and schools, looking to spy on and entrap Muslims, with phony or exaggerated terrorism charges.

Tens of Muslims were detained without charges under the Material Witness Statute, falsely claiming that if they were not detained, these people were likely to flee. Hundreds were charged and convicted of providing “material support” or other criminal charges, and then offered reduced charges in exchange for information or for acting as informants.

Anti-Sharia laws were proposed in 30 states. Enflamed by fear of Muslim Terrorism, concerted efforts on social media platforms and by right wing media that Islam = terrorismwere beginning to grow roots in the U.S., which as we know had a long history of racism and fear of the other. Nativist anger was on the rise.

But wait — a new president was elected — a constitutional law professor who called the Iraq war a stupid war and talked about hope and change; the “hope” that the counterterrorism and the attack on our civil liberties at home would be ended. But alas that was not to be.

It turned out, Barack Obama wanted a sustainable GWOT, but without fear and Muslim hatred.  He tried to moderate the war on terror under the naive fallacy that destruction abroad would not damage U.S. democracy.

The third day in office he initiated drone attacks in Afghanistan that killed nine civilians.  And every third day throughout his tenure he approved or had subordinates approve murderous drone attacks. He opted for a “cleaner way”to kill the believed terrorists by air, and over his years in office he was responsiblefor over 1,000 strikes, killing 4,000 including at least 500 civilians. Since it was all done in secrecy, we really will never know the real totals. Drones attacked  mosques, funerals and weddings, signature strikes which did not target a specific target but focused on general targets. Murder without due process, even including U.S. citizens. Drone use was the centerpiece of his counterterrorism strategy. The head of the drone strikes was the former head of the CIA counterterrorism center.

In 2012 Obama signed into law the National Defense Authorization Act, which specifically allowed the apprehension and indefinite detention without trial of anyone, including U.S. citizens, suspected of threatening the security of the homeland. He promised to close Guantanamo but failed to do so (he had the crazy idea to put them in a prison in Illinois, rather than give them immediate Article III trials or release them.). But he backed off of that promise when he received some opposition from Congress, and Guantanamo was never closed.

He sanctioned military trials and secret surveillance. Despite all his efforts to placate the security state, and the anti-Muslim nativists, many attacked him calling as secret Muslim and supporter of the terrorist networks.

He, like Bush, failed to make the GWOT respect the constitution;instead he allowed the constitution to respect the law on terror. He charged six whistleblowers with the 1917 espionage Act, including Snowden, Chelsea Manning, and an FBI agent who released information on CIA torture —  invoking this 100 year old law more than all the prior presidents combined.

He refused to hold accountable those who planned and carried out torture, spouting the absurd idea that we should look forward not backward, and essentially providing immunity to all those who organized the torture. He directed his Justice Department to appeal favorable lower court rulings to allow habeas corpus rights to prisoners at Guantanamo and Bagram, and defended a suit against an airline involved in carrying out renditions for torture. 

The fear and hate towards Muslims was growing, and now, with the protests of police killings in Ferguson and other places, supporters of the Black Lives Matter movementwere being called terrorists, as wer the amorphous Antifa.  Connected to all this fear and hatred was the growing anti-immigrant movement. “Terrorists” were coming in over the southern border, and Obama responded by deporting almost two million immigrants and locking up unaccompanied children. Many in the white population argued that dangerous immigrants were coming here to replace them. And our history of genocide against Native people and racial bigotry and violence was alive and growing. The war against terrorism was brought home after years of brutal, murderous counterterrorism.

Should anyone had been surprised that all this fear of terrorism and racial hatred did not bring us Donald J. Trump?  The liberals who supported Obama were now forced to see the security state as the savior of U.S. democracy. The CIA, U.S. Attorneys, and the FBI were the heroes. Ask yourself how many times you saw one of them as a talking head on TV defending the rule of law and the constitution in opposition to Trump. But did we forget all they did in the past to undermine the rule of law and the constitution? The question has been asked: “does the evacuation of Iraq and now Afghanistan bring an end to the GWOT?” I submit to you until we eliminate the U.S. interests in policing the world with drones and other forms of air power, and the U.S. ends its lust to control the Middle East, Latin America and Africa, the GWOT abroad and the war at home will continue, and the rule of law and the constitution will continue to be trampled.

Johnny Plummer Wins His Appeal!

Another Burge Torture Survivor Will Finally Get His Day in Court

On Friday, August 20, 2021, the Illinois Appellate Court ruled in Johnny Plummer’s favor granting him a hearing so that he can present newly discovered evidence in support of his allegations that he was tortured at Area 3 Police Headquarters by detectives working under the supervision of the notorious former Commander Jon Burge and that these detectives withheld evidence exonerating him of this murder.

In August of 1991, Johnny, aged 15, was transported to Area 3 Police Headquarters, and questioned about the murder of Michael Engram. Johnny has consistently alleged he was tortured into confessing to this murder by Detectives Michael Kill and Kenneth Boudreau when they hit him with a flashlight; punched him in the face; pulled his hair; handcuffed him to a radiator and ring in the wall; and threatened he would be raped in prison. After he was tortured and interrogated for 39 hours, he agreed to sign a statement because he was scared, tired, and wanted the torture and interrogation to end.

In 1995, the chief piece of evidence used to convict him of this murder was his coerced confession.

In 2016, Johnny filed a successive post-conviction petition. In support of his claims, he attached evidence demonstrating that 72 people have accused Kill and Boudreau of using torture and abuse to extract their confessions: 2o of whom have been exonerated or acquitted of the crimes they confessed to; 8 were granted reparations from the City of Chicago; and scores of others had their allegations of coercion deemed credible by the Illinois Torture Inquiry and Relief Commission (TIRC), judicial decisions, and prior findings by the Office of Professional Standards.

The Illinois Appellate Court, citing a “multitude of evidence” and “abundance of exhibits,” noted that the “trial court found that there was no question that Detectives Kill and Boudreau engaged in a pattern and practice of abuse.” The Appellate Court also found that Johnny presented “evidence of a systematic pattern of similar abuse by Detectives Kill and Boudreau . . . The alleged pattern of abuse could be used to impeach Detective Kill’s credibility and bolster defendant’s credibility. The proposed evidence places such a weight on the scales of justice that it significantly undercuts this court’s confidence in the guilty verdict. Thus, we find that this evidence is so conclusive in nature, that if these reports were allowed at defendant’s motion to suppress, it would have likely changed the outcome on retrial”.

The Court also found that Johnny presented sufficient evidence demonstrating that Detectives Kill and Boudreau withheld exculpatory evidence demonstrating that there were alternative suspects who may have committed the murder. If this evidence was presented at his trial, it could have changed the result.

There was no physical evidence linking Johnny to this crime, and his conviction was predicated upon his alleged coerced confession and two tentative eyewitnesses, one of whom did not see the shooting and the other who cannot reliably claim Johnny committed the murder.

This win in the Appellate Court is a crucial step for Johnny in securing a modicum of justice in his case. We are hopeful that this decision will help Johnny and other police torture survivors interrogated at Area 3 Police Headquarters who have had less success securing their dates in court despite newly discovered evidence in support of their allegations of torture and coercion.

To read the full decision you can find it here.

It is the fruit of a collective effort by countless people including, Johnny; his mother Jeanette Plummer, who has been a tireless advocate on his behalf; lawyers and legal workers at the People’s Law Office and Roderick and Solange MacArthur Justice Center who represented Johnny in the trial court and on appeal (Joey Mogul argued the case in the appellate and trial courts and filed the petition in trial court; Megha Ram authored the appellate briefs), attorneys at Edelson P.C. (Daniel J. Schneider) and Mayer Brown authored amicus briefs, as well as several organizers and organizations who have supported Johnny, the reparations campaign for Burge torture justice survivors and the on-going efforts for justice for all police torture survivors.

Organizations who supported Johnny’s appeal include: The Chicago Torture Justice Center, Chicago Torture Justice Memorials, Mamas Activating Movements for Abolition and Solidarity (MAMAS), South Siders Organized for Unity and Liberation (“SOUL”), Chicago Alliance Against Racist and Political Repression (CAARPR), The NAACP – Westside Branch, Black Lives Matter Chicago, Chicago Urban League, Chicago Community Bond Fund, Westside Justice Center, Judicial Accountability Project, Brighton Park Neighborhood Council (BPNC), American Friends Service Committee Chicago, She Votes Illinois.

Representing People Charged with Ordinance Violations or Misdemeanor Offenses in the City of Chicago

NLG Presentation

Updated 2012, 2015 and June 2020

By: Emmanuel Andre, Janine Hoft and Melinda Power

Introduction

The murder of George Floyd in Minneapolis by police officers touched off unprecedented global protests against police brutality, anti-Blackness and white supremacy. His murder was immediately preceded by the murders of Breonna Taylor, Tony McDade, and Aumaud Arbery. The spark recently ignited by these murders follows the smoldering of the inability to enact fundamental change as previously demanded in response to the outrage expressed after the police murders of Michael Brown in Ferguson, Missouri; Laquan McDonald and Rekia Boyd in Chicago and so many other victims of racist and brutal murders at the hands of police and white supremacists. Thousands came out into the streets of Chicago to take part in this momentous moment to say “enough is enough.” Chicago Police reacted by arresting an estimated 2000 people, mainly charging arrestees with ordinance violations and misdemeanors. We come together today because we have all volunteered to support those arrested and together defend them to our utmost collective ability against these charges.

The National Lawyers Guild, through its Mass Defense Committee, has represented activists arrested at demonstrations promoting issues of justice for many years. From supporting solidarity with Central America, healthcare and dignity for people living with AIDS, LGBTQ, disabled activists, anti-NATO and Occupy, the NLG has organized lawyers to provide legal defense and representation. The NLG is proud to come forward in this moment to be a part of and support those opposing anti-Blackness and white supremacy. This training focuses on preparing attorneys with little criminal defense experience or those desiring a refresher to feel more comfortable representing clients who are charged with ordinance violations or misdemeanors

This is an unprecedented time both because of the historic scope and reach of the Black Lives Matter protests as well as the impact of the COVID-19 pandemic. The pandemic has caused court procedures and proceedings to be held remotely and for procedures to be subject to change quickly and unpredictably. Accordingly, these procedures outlined are subject to change as COVID-19 recommendations and policies change.

Representing Political Clients

Those arrested during these recent demonstrations and uprisings are entitled to vigorous, creative and supportive representation, recognizing the particular political context and import of their arrests and prosecutions.  Political clients need the same information as to their available options as any other criminal defendants but some may view their involvement in the so-called criminal justice system in a different way than an individual arrested in another context. Some may not want to raise technical defenses and others may have qualms about expressing “guilt.” Others may want to creatively and collectively challenge the issues in the form of unique motions or trial defenses. It is important for attorneys to assist the political client in navigating the system while identifying and respecting an individual client’s unique concerns and goals.

Assignment of Lawyers to Clients

The Mass Defense Committee of the NLG has compiled a list of all arrestees desiring representation and will try to appropriately  match them with available attorneys. The Mass Defense Committee will try toassign attorneys to a particular court date, time and location and provide attorneys in advance of the court date with the names of potential clients appearing, any available contact information and an identification of the particular charges faced by the client. First Steps

  • Attorneys should contact clients in advance to introduce themselves, verify information, review the actual charging document or bond slip and discuss a client’s understanding of the process and their expectations.  
  • We also strongly encourage attorneys to discuss, in person when possible, remotely online, or by telephone, the case with the prospective client.

Get the client’s version of events and get names and contact information of witnesses. t would be helpful to have an idea in advance of the court date whether a client wants to enter into plea negotiations in an effort t to quickly resolve their case, is willing to pay a fine or do community service as part of a plea agreement, or whether the client will only accept a dismissal or wants to fight the charge and proceed to trial.

In taking these initial steps and meeting with the client, it is important to consider and reflect on the racial, social, and economic biases that may be at play in the case. Furthermore, the racial and political nature of these cases make it important for attorneys to also assess their own personal biases and potentially adjust their own actions accordingly to best represent their clients. Recognition of those differences and biases is an important first step and continued communication with the client and other attorneys in this collective endeavor is imperative.

Representation of Clients Charged with Offenses

Although many minor charges are dismissed on the first court date, the attorney should be aware of the options available in defending a client. Prosecutors in other cities have announced in advance that they will not pursue the prosecution of lesser charges but the Chicago authorities have been silent thus far.  Representation of a client charged with an offense can be a unique challenge much like unraveling a mystery. An evaluation of each case includes reviewing the specifics of the charge and identifying the police version of events compared with a client’s version. You probably won’t have access to the charging document or the arrest reports until you get to court. 

Here are some questions that you will want to address. Can the prosecutor meet its burden to prove each and every element of the crime charged? Are there technical defenses to the charge, including did the police identify the wrong offense or fail to adequately prepare the charging documents? Is there a factual defense to the charge or can facts be presented that deny the stated offense? Will a bench or jury trial be an appropriate and desirable method to raise issues or present defenses?  Are there witnesses, videos, documents (i.e. medical reports) which corroborate what your client says happened?  Is there BWC (body worn camera) from the police? Unmanned aerial devices or drones? Social media monitoring?

Most of the charges from the recent uprising are being prosecuted in the misdemeanor courthouses rather than the municipal courthouse on Superior Street. Charges may include disorderly conduct as a misdemeanor or a city ordinance violation, curfew violations, criminal trespass or reckless conduct. An arrestee has a right to a jury trial only if the charge carries the potential for jail time and if not a jury trial must be purchased for $250 by paying the Clerk of the Court.  The case will then be transferred to Room 303 at 555 W. Harrison. A trial will not take place on an initial court appearance as generally judges provide each side with one continuance and therefore the defense attorney will have an opportunity to obtain police reports and other documents, visuals, evidence or witnesses necessary for a trial. Knowledge about the judge who will hear the case is indispensable information. Information can be obtained from other attorneys who have experience with the judge and the public defenders in the judge’s courtroom. Prior to the initial court appearance, attorneys will want to review the statutory elements of the charge and may want to prepare certain documents as discussed below.  The Mass Defense Committee has tried to gather information from arrestees as to what they are charged with as well their contact information. 

Potential Charges Generally Anticipated in a Demonstration Context

People arrested in Chicago for what the police consider minor offenses are usually either given a City of Chicago ordinance violation citation or charged with a misdemeanor. Common applicable ordinance violations include parading without a permit, disorderly conduct and pedestrian traffic offenses. There is also an ordinance violation for resisting arrest.[1] In the instant moment, generally folks are charged with disorderly conduct, criminal trespass or curfew violations that are being prosecuted in the state misdemeanor courts. In misdemeanor or Branch courts, there is a state’s attorney who prosecutes misdemeanor violations of state law and a corporation counsel responsible for prosecuting city ordinance violations. 

I.        Representing Client Charged with an Ordinance Violation

With regard to the most recent arrests, ordinance violations are indicated through the code numbers indicated in the charge box on the bond slip arrestees received upon being released from custody. The bond slip also indicates the date, time and location of the first required court appearance. However, due to Covid-19 some court buildings remain closed and initial court dates should be confirmed and verified through the Clerk of the Circuit Court of Cook County’s web site. (Cookcountyclerkofcourt.org) Attorneys may register to access a portal on the website that provides information.

 An ordinance violation may be issued by the Chicago Police Department for a violation of the City of Chicago Municipal Code in the form of  a “ticket” that looks somewhat like a traffic ticket if they are  charged with an ordinance violation.

The ticket will provide the following information:

Step 1 is in the middle section of the ticket.  On the left hand side of the ticket are pre-printed numbers facing vertically which represent a client’s ticket or case number.  When an attorney files an appearance, this number is put on the right side of the appearance form.

– On the left side of Step 1 are the charge and the Municipal Code violation number.  The Municipal Code number identifies the chapter and subsection of the violation and defines the elements of the offense.  The Code can be viewed by downloading the “Municipal Code of Chicago”. A copy of the Chicago Municipal Code is available on line at http://www.amlegal.com/library/il/chicago.shtml and through the city clerk at www.chicityclerk.com. (See, e.g., Exhibit 1, copy of text of ordinance violation: 8-4-010 Disorderly Conduct).  

Step 2 section lists the alleged action done by the client which formed the basis for the arrest.

The bottom of the ticket states the date and time of the court appearance.

Court Location and Filing Attorney Appearance

Municipal Administrative Hearings are held at 400 W. Superior just west and north of the Chicago Loop. [Note, meter parking is available on Chicago Avenue and nearby cross streets.] Sometimes in mass arrest situations, an attorney can contact the city prosecutor in advance in an attempt to resolve cases prior to the first court appearance. Unlike in misdemeanor court, the ticket or charging document is prima facie evidence of the offense and a complainant police officer is not required to be present in order for the city to prosecute the case. Arrestees may also negotiate the resolution of a case through an attorney and avoid a personal appearance.  

When arriving at 400 W. Superior, everyone, including attorneys, must go through a metal detector.  The courtrooms are located to the left and the particular courtroom number will be identified on the client’s ticket.  In the hallway outside the courtrooms sits a clerk at a desk who can provide attorney appearance forms that must be completed and returned to the clerk.   A copy of the appearance should then be brought into the courtroom.

Courtroom Proceedings

In the courtroom there will be an office right off the courtroom where the Corporation Counsels are located.  Check in with them first. Sometimes they come in and make an announcement and collect a copy of everyone’s ticket and attorneys provide their appearance forms with a client’s ticket to the Corporation Counsel. Ask theCorporation Counsel ifthey plan to proceed with the client’s case.  If they don’t, the case will be called and they will let the administrative law judge know and a printed order will be generated indicating the case is dismissed.

If the City plans to proceed, they will make an offer to resolve the case.  Generally, the offer is a monetary fine up to around $100.00.  Alternatively, a client can do community service through the City but there is an additional administrative cost.  The defense attorney may know in advance whether the client wishes to resolve the case by a plea and if so is able to pay a fine or do community service through the City. If the Corporation Counsel wishes to proceed with the case, ask what is being offered in exchange for a plea and then you can communicatethe offer to the client and a decision made about whether the offer is acceptable to the client.  Unlike Cook County courts that allow community service to be completed at any not for profit organization, the community service must be done through the City.

If the client wishes to contest the charge, they have a right to a trial or may request a continuance. The trial will take place in the hearing room and the burden is “a preponderance of the evidence.”  The Hearing Officers are practicing attorneys and not full time judges.  They are appointed by the City and generally are unfamiliar about protest type cases.  The City can proceed by the sworn allegations on the ticket and need not present a live witness.  The defense can present live witnesses, visuals and documentary evidence to overcome the preponderance of the evidence standard.

Spectators can be in the courtroom.  At the conclusion of the trial, the Hearing Officer will make a finding and generate a printed order. If the finding is guilty, the hearing officer generally will assess a fine and court costs.   An attorney can try to negotiate with the corporation counsel about the penalty, either by negotiating a reduction of the fine or requesting community service. If the client is found guilty, and is ordered to pay a fine or fee, it can be paid by credit card at a machine located further north of the metal detectors at the entrance of the building. An attorney may be able to negotiate a time period within which the fine and costs must be paid.

An attorney may also try to negotiate a resolution of the case before court by contacting the Corporation Counsel’s office at 400 W. Superior if the client indicates in advance they are willing to enter into a plea. A continuance may be requested, without the client’s appearance, if the client is unable to attend court. An arrangement may be worked out in advance and possibly obviate the need for the client to appear.  The attorney would still go to court, file an appearance and tell the Corporation Counsel that an agreement was reached in advance.  A printed order will be generated as discussed above identifying the agreement that was reached to pay a fine and/or complete community service.

II.      Representing Client Charged with Misdemeanor Offenses

          A misdemeanor offense is a violation of state law for which the maximum penalty upon conviction is no longer than 364 daysin jail. Misdemeanors are classified according to the maximum penalty with a Class C misdemeanor carrying a maximum 30 days in jail and $1500 fine, Class B misdemeanor carrying a maximum 6 months in jailand $1500 fine and Class A misdemeanor carrying a maximum of 364 days in jailand a $2500 fine.  Fines are generally not imposed in misdemeanor cases. Periods of deferred prosecution, supervision or probation  may be available dispositions of misdemeanor cases except for certain identified offenses, including a charge of resisting arrest. If supervision is an available disposition then the charge is technically dismissed after a period of time and may be expunged from your arrest history. 

          Ordinance violations prosecuted in state court generally follow similar procedures although the potential penalties are less and the prosecutor is a corporation counsel and not a state’s attorney,   

Preparing for Initial Court Appearance

The bond slip given to a client when released after their arrest contains helpful information. The following information may be found on the bond slip (see attached Exhibit 2):

On the upper right hand, the bond will have either the letter D or I.  A D bond indicates that money, usually $100.00, has been paid to be released from custody.  An I bond means that the arrestee is released on his/her own recognizance and no money has been paid for her/his release

In the middle of the bond slip is a section entitled Court Appearance.  It will identify the address of the court, the branch number of the court and the date and time for the court hearing. 

Right above that is a box which contains the charge.  It will refer to the State of Illinois criminal code and begin with the chapter number 720 followed by numbers which refer to the specific charge. A review of the annotated statute identifying the criminal charge and related case law yields a wealth of information.

Note, when a person is on bond, they are not permitted to leave the northern district of Illinois.  If a client is planning on travelling somewhere, they may inform you of that.  There is a procedure by which a person can file a motion to advance the court date and get a written order “enlarging” the bond or permitting a person to leave the jurisdiction of the court.  It is time consuming and of questionable necessity.  If the client wants to do that, we suggest you let them know they can go to room 1006 of the Daley Center, prepare and file a motion to advance their case for a date convenient to them, and go to their assigned court that day and get an order expanding the bond. 

Initial Court Appearance and Court Location Information

An attorney who shows their bar card and Cook County identification card at the misdemeanor courthouse will not need to go through the metal detector or be searched.  The attorney will want to find out if the client is present, and then file an appearance form with the clerk in the courtroom. (See attached Exhibit 3).  Appearance forms are found in the area of the clerk’s desk or may be located by asking a public defender or sheriff in the courtroom if the clerk is not around. An attorney may also prepare his or her own version of the appearance form in advance. The court case number may be found on a call sheet which is either in front of the clerk’s area, posted outside the courtroom or can be obtained by asking the sheriffs or the public defenders for the call sheet.

 There are advantages to arriving 10-15 minutes before the scheduled court call.  An attorney who arrives prior to the time of the court call may request to see the court file before the case is called.  The file should contain the Complaint, or formal charge and the attorney is entitled to a copy, but at the very least it is important to carefully review the complaint to determine the specific conduct the charge alleges your client engaged in.  You need to ask the clerk for a copy of the charge.  If there is more than the original of the charge in the file, the clerk will generally give you a copy of the charge.  However, if there is only the original, you have to ask if either the clerk will make you a copy or let you take the original and make a copy in the clerk’s office.  Also, the arrest report should be in the file which will include a narrative of the police version of what happened and the basis of the charge, which you will also want to review. Often the PD has the arrest report, so you can check with the PD in the courtroom to see if he/she has your client’s paperwork.   An attorney must file an appearance and tell the clerk that the case is ready in order to have it called.

Another advantage to arriving early is that as soon as you tell the clerk that you are ready to have your case called, it will be put in the pile of cases to be called.  Private attorneys’ cases are generally called first, so the sooner you tell the clerk you are ready, the sooner your case should be called. 

On the Arrest Report in the upper right hand corner are the following #s which are useful to obtain subpoenaed material or to get the Office of Emergency Management Communication[2] recordings and the body worn camera videos (BWC).

They are:

The CB(Central Booking) # and the IR (Individual Record) # may be used to obtain the criminal history of your client generally for purposes of expunging a client’s record, the RD (Records Division)# and Event # may be used to get reports, O.E.M.C. recordings and subpoenaed material.

We suggest you ask the state’s attorney if they plan to proceed with the case or argue why the charge should be dismissed.  They may know whether they plan to proceed or they may say they will see if an officer checks in or what the officer says about your client. Generally, if the police officer is not present in court and hasn’t notified the state’s attorney with a good reason for his/her absence, the court will dismiss the case. If the case is dismissed or “stricken on leave to reinstate” (SOL-ed) an attorney should file a written trial demand. (See attached Exhibit 4) When the case is first called, the judge generally looks to the state first and if the state wishes to proceed they will ask the judge to pass the case in order to “pre-try” the case with defense counsel. The state should then tell you what the offer is and you can negotiate and argue with them for a resolution more beneficial to your client, if your client is interested in resolving the case by way of a plea on the first court appearance.  

Possible Offers from State’s Attorney to Resolve Charge

Deferred Prosecution which is the best alternative to an outright dismissal or a victory at trial.  It’s given for first time offenders, and the client doesn’t have to admit or stipulate to any facts.  Community service at a not-for-profit may be required.

Community service at any not-for-profit in exchange for dismissal.  Upon completion of the community service, the client will need to get a letter from the not-for-profit verifying that he/she completed the required number of hours.  The client will need to bring this letter to court. The case will not be dismissed until the letter is presented to the court. Judges have allowed clients to present the letters without their attorney’s presence and have waived the client’s presence if the attorney presents the letter.

Supervision which lasts from one to twelve months.  During that time, the client is not supposed to break the law.  If the client successfully completes the supervision, two years from the termination of the supervision, the arrest can be expunged.  Supervision does not count as a conviction under Illinois state law but a supervision finding will have immigration consequences for an undocumented client. Supervision may be used in subsequent sentencing determinations within the two years and pursuant to federal sentencing guidelines.

required. 

          –Conditional Discharge for one to twelve months.  Unlike Supervision, upon completion of the conditional discharge your client may never expunge their arrest and a conviction is identified on their record. Client does not need to report to any agency during the term of the Conditional Discharge.

-Probation or Jail Time generally is not an appropriate or acceptable plea agreement for a misdemeanor charge.

An arrestee who is charged with most misdemeanor offenses as a result of political expression or activity generally can get supervision  or deferred prosecution unless they have a significant criminal background.

Creative Motion Practice

Prior to trial, a criminal defendant may bring a motion to dismiss. Depending upon the facts of the case, such a motion may be appropriate to avoid a trial. In the Occupy cases, a motion to dismiss the park district ordinance violations based on the First Amendment was successful in avoiding trials. See, e.g. 725 ILCS 5/114-1.

Trial of Misdemeanors

If a client wishes to proceed to trial, it is important to file a discovery motion. (See attached Exhibit 5). [3]  The client can request a bench trial, which is a trial with a judge at the branch court where the case is first held.  The trial is generally continued for another date so that both sides can get needed discovery. Alternatively, a jury trial can be requested.  If a jury trial is requested, the case will be sent to room 304 at 555 W. Harrison.  A court date within a week or more will be given.  The client will need to understand that it may be several months before the trial is actually held due to obtaining discovery and court back log and may require multiple court appearances before a trial actually commences. Additional plea negotiations may take place during these interim appearances. An attorney should be prepared to subpoena records and evidence for a trial. A subpoena can be prepared for additional documents that the police maintain but do not place in the court file. (See Exhibit 6, copy of subpoena for documents in a misdemeanor case). A subpoena, in addition to uncovering additional information, can send a message to the prosecutor that the defense of the case will leave no stone unturned and will require the expenditure of the state’s resources. It is essential to serve the subpoena as soon as possible but in any casewithin 30 days of the event prompting the client’s arrest to assure that all available documents and evidence will be preserved. Additionally, a court order to preserve and turn over any 911 calls or O.E.M.C. can be entered on the first court date and then served on O.E.M.C, within 30 daysof the date of arrest to preserve any audio communications regarding the case. (O.E.M.C. order, Exhibit 7).

Trials may be consolidated with other related cases and more experienced criminal defense attorneys are available for consultation about, preparation for and conducting a trial. NLG attorneys will work together with you if you have questions and to help you defend clients and create trial strategies.

The State must prove each and every element of the offense charged beyond a reasonable doubt to sustain a conviction.[4] Carefully consider whether the State can technically prevail on each element and creatively argue that the burden has not been met on each element. Any element including language such as “unreasonable” or “without authorization” should be analyzed in the context of the facts of each case. Many times police arrest individuals although they are acting reasonably and within their rights.

Affirmative Defenses

Consider any potential affirmative defenses to the charge. 720 ILCS 5/3-2. For example, political defendants have had success raising the defense of necessity in Illinois. Illinois law specifically provides for the defense of necessity. 720 ILCS 5/7-13. The statute sets forth:

Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.  

          The defense of necessity is not always favorably accepted by judges but can have an important impact on juries if allowed. NLG attorneys were first educated on this defense by activist clients. Defendants have been able to introduce testimony and evidence as to why they took the actions they did and why it was reasonable and necessary for them to do so. The advantage of this defense is you could argue that you should be able to present evidence as a part of your defense, for example, on the facts and history of racism and anti-Blackness, police brutality, as well as the efficacy of protests in changing public opinion and the law as part of your defense.  This defense requires a significant commitment from the attorney, the client, potential witnesses and overall resources.  But, the use of the defense can make an impact on you, your client, court personnel and the public.

Good luck, thanks for your commitment and willingness to support your clients!


[1] Additionally, but not applicable to these arrests, certain offenses committed on federal property, such as blocking the doors of a federally owned building or trespassing on federal property may be similarly charged by Federal Protective Service Officers (FPS) as violating federal codes. The FPS can process these federal charges or relinquish jurisdiction and request arrest by the CPD. Common applicable misdemeanors include state disorderly conduct, criminal trespass, resisting or obstructing, mob action and reckless conduct.

[2] O.E.M.C. recordings include any 911 calls or police messages pertaining to the arrest and the incident leading to the arrest.

[3] We also suggest that you prepare a subpoena to the City of Chicago police department asking for arrest reports and supplemental reports.  If your client claims injuries, also subpoena officer battery reports (if applicable), TRRs, and color arrest photos of the client.  Subpoena forms can be obtained online at the Clerk of the Circuit Court’s website. The Office of Emergency Management and Communications can also be subpoenaed. https://oemcsubpoena-chicagops.govqa.us/WEBAPP/_rs/(S(dz2vk3lisrzk02fb2malqznh))/RequestOpen.aspx?rqst=13&sSessionID=67167244194I[HUHGBGLONUYSWNNTWPZ[PBMLIPI

[4] A corporation counsel must prove each and every element of an ordinance violation by a preponderance of the evidence. 

Exhibit 1 City Disorderly Ordinance

Exhibit 2 Bond Slip

Exhibit 3 Appearance

Exhibit 4 Trial Demand

Exhibit 5 Discovery Motion

Exhibit 6 Subpoena

Exhibit 7 OEMC Order

FOIA Documents Maintained by Departments