Cook County States Attorneys’ Office Disqualified (Again) From Burge Torture Cases

By G. Flint Taylor

More than twelve years ago, a coalition of activists, frustrated by the decades long refusal of the Cook County State’s Attorneys’ Office to investigate and prosecute Jon Burge and his crew of police torturers, started a campaign for the appointment of a special prosecutor.  This prosecutorial intransigence began in the early 1980s under the reign of States Attorney Richard M. Daley, and continued under Daley’s former First Assistant, Richard A. Devine.

The coalition filed a petition before the Chief Judge of the Cook County Criminal Courts, Paul Biebel, setting forth the deep involvement of the State’s Attorney’s Office in the torture scandal – – – taking confessions from numerous tortured suspects, prosecuting those suspects on the basis of tortured confessions, and refusing to prosecute the torturers  – – – all with the knowledge that torture was the name of the game.  The Petitioners also emphasized that Devine, while in private practice, had been involved in defending Burge against allegations of torture in the Andrew Wilson civil damages case. All of this, the Petitioners argued, established a conflict of interest requiring disqualification of Devine and the State’s Attorneys’ Office (SAO) and the appointment of an independent special prosecutor.

In April of 2002, Judge Biebel ruled that Devine did indeed have a per se conflict of interest that arose from his prior representation of Burge. He disqualified Devine and the SAO, and appointed a special prosecutor to investigate Burge and his confederates. The next year, Judge Biebel ruled that the conflict was continuing, and disqualified Devine and the SAO from further involvement in the post conviction cases that a number of torture victims had brought in criminal court in order to challenge their convictions. Biebel appointed The Illinois Attorney General (IAG) to replace the SAO as the prosecutors in those cases.

In December of 2008, Anita Alvarez succeeded Devine as the States Attorney of Cook County. The Illinois Attorney General’s Office, weary of defending the State in the increasing number of post conviction cases brought by Burge torture victims, asked Biebel to pass the ball back to the SAO, arguing that the conflict no longer existed because it was personal to Devine.  Judge Biebel disagreed, finding that the conflict continued to disqualify the entire SAO, and appointed former Cook County Judge Stuart Nudelman as Special Prosecutor to defend the State in the post conviction proceedings.

In June of 2012, the Illinois Torture Inquiry and Relief Commission decided that five Illinois prisoners, including Shawn Whirl and George Anderson, were entitled to criminal court hearings on the question of whether their confessions resulted from Burge related torture. In October, a class action law suit was filed on behalf of an undetermined number of additional prisoners seeking similar hearings on their claims of tortured confessions. When State’s Attorney Alvarez refused to step down from their cases, Whirl, Anderson, and the class all petitioned Judge Biebel to disqualify her and the SAO on the basis of the continuing conflict and asked that Nudelman be appointed.

On April 11, 2013, Judge Biebel reaffirmed his prior rulings and once again found that the SAO’s conflict of interest was not abated by Alvarez’ replacement of Devine. According to Judge Biebel, this was so because Devine’s conflict had irreparably “infected” the entire office, including Alvarez, who was one of his top assistants. However Judge Biebel further ruled that he was not free to simply appoint Judge Nudleman as Special Prosecutor in the class action and TIRC cases because a new statute, passed by the Illinois Legislature in 2012, required him to first seek cost free representation from various public prosecutorial agencies. Hence Judge Biebel announced that he would contact the Illinois Attorney General, the States Attorneys’ Appellate Prosecutor, and States Attorneys from twelve of the largest counties in Illinois to determine, before May 7, whether any of them would accept the job. If not, Judge Biebel will, in all likelihood, appoint Judge Nudelman, who has already billed the County almost $2 million for his work in twenty Burge related post conviction cases.

It has been clear from the beginning that States Attorney Alvarez, like Daley and Devine before her, would be committed to the same delay and deny tactics that have derailed justice for the scores of African American men who still remain behind bars as a result of confessions they claim were tortured from them. Hopefully, Judge Biebel will swiftly appoint a special prosecutor not beholden to these extremely powerful Cook County politicians, who will agree that these long suffering men are at long last entitled to a fair hearing, with all the evidence now at hand, to determine whether their confessions were tortured from them.

The People’s Law Office has been integrally involved in the special prosecutor struggle from the beginning, represents Shawn Whirl, and, along with the MacArthur Justice Center, brought the class action lawsuit that is the subject of Judge Biebel’s most recent decision. To access the decisions discussed and the most recent Chicago Sun Times Editorial:

April 11, 2013 Special Prosecutor Decision:

April 8, 2009 Special Prosecutor Decision:

April 9, 2003 Special Prosecutor Decision:

April 24, 2002 Special Prosecutor Decision:

April 11, 2013 Chicago Sun Times Editorial: Clear up all cases tainted by torture claims