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When then-Gov. George Ryan of Illinois pardoned four men on death row last month, one thread tied them together. They all claimed to have been tortured by the Chicago police. They were among dozens of men, mostly black, who allege that officers under former police Commander Jon Burge used methods to elicit confessions that included electric shocks, suffocation and holding them over a hot radiator. The torture allegations were mainly from the 1980s. Burge was fired in 1993, after the Chicago Police Review Board found one instance of improper conduct. But the word “torture” still hangs over the police department — and, if a coalition of defense lawyers has its way, over the Chicago judiciary as well. The coalition is asking in a petition that all Cook County judges be disqualified from hearing the 50 or so cases that include allegations that Burge and his officers tortured suspects. The defenders argue that many criminal court judges are ex-prosecutors themselves or are colleagues of former prosecutors. Specifically, the coalition is focusing on the cases of 12 people who are currently in court appealing their criminal convictions. The Cook County state’s attorney’s office (SAO) is fighting the effort. Chief Criminal Court Judge Paul Biebel Jr. is expected to rule on the motions on Thursday. PROSECUTORS’ CASE LAW Defense lawyers are relying heavily on the unusual facts of the situation. The state’s brief is loaded with case law in their favor. “This is a political, not a legal, question,” says Ronald C. Smith, the immediate past chair of the American Bar Association’s criminal justice section and a professor at John Marshall Law School in Chicago who has been following the case. Smith says he thinks most Cook County judges are fair. But, he says, “I think the public has become very skeptical, even cynical of people who hold public office — judges, politicians, whatever.” That perception, he says, argues in favor of the defense lawyers’ motion. “The criminal justice system has to have a public that believes the system is working.” The defense lawyers include attorneys at three Chicago law school clinics; private firms that include Schiff Hardin & Waite; the county public defender’s office; and small public-interest law firms like the People’s Law Office. In a memorandum of law, the lawyers say that Cook County judges, particularly those in the felony courts, were involved as participants or supervisors in the investigation and prosecution of cases where torture is alleged. Many other judges are close colleagues of those judges who were former assistant state’s attorneys. “Our facts are unique,” says Michael Deutsch of the People’s Law Office, a lead attorney. “You don’t have another situation where you have such lengthy allegations of torture that involved so many state’s attorneys — in that regard there is no other case like it.” The defense lawyers wrote, “Regardless of whether an individual judge had any prior involvement with torture evidence or claims, there is the appearance of an institutional bias in the Cook County judiciary, which must not be allowed to remain as a cloud over any judicial determination.” Lawyers with the Cook County state’s attorney’s office, which filed papers in opposition to the petition, expressed outrage at the request. “There’s absolutely no basis for this type of petition in law,” says Celeste Stack, supervisor of the capital post-conviction unit at the Cook County state’s attorney’s office. “It’s untimely in relation to each of the defendants. They have to demonstrate cause or bias and they didn’t even name the 12 judges who were in the proceedings.” The state’s attorney’s brief said, “They demand that decades of legal authority be disavowed, and that they be given special consideration based only upon unfounded speculation, speculation that impugns the integrity of the entire judiciary system.” Judge Biebel, to whom the petition is addressed, appointed a special prosecutor in April 2002 to investigate the allegations of torture. The investigation will examine the conduct of police officers and present and former assistant state’s attorneys, including those who are now sitting judges. The plaintiffs argue that of the 61 judges assigned to the Cook County felony courts, 18 had material involvement in the torture cases. They did so either by obtaining the allegedly coerced statements, by approving charges based on them or by participating in Burge’s defense as a lawyer or witness. They say that of 61 criminal judges, 41 are former assistant state’s attorneys (ASAs) and 38 served in the state’s attorney’s office’s felony trial section or felony review unit as supervisors when statements were obtained or relied upon in criminal prosecutions where torture is alleged. A handful of other judges, they say, are former police officers or defended police officers in cases where torture was alleged. “Given the myriad of personal and professional relationships between the sitting judges and present and former Cook County ASAs,” the defense lawyers wrote, it would “create an impermissible conflict of interest and raise an appearance of impropriety, to allow Cook County judges to preside over these torture cases in which they may have to weigh the credibility of their present and former colleagues and generally make findings which could be viewed as undermining the integrity and reputation of the SAO, the Cook County judiciary, and the entire Cook County criminal justice system.” The plaintiffs argue that cases showing patterns and practices of torture would require other judges to pass judgment on the credibility of their colleagues. For example, they say that as many as 17 sitting judges could be called by prosecutors or defense lawyers in a case on behalf of one of the defendants over whether there was a pattern or practice of torture. PAST RULINGS Chicago judges’ history of rulings on torture motions makes it unlikely that they would question their colleagues’ credibility and rule against them, the defenders argue. “Since the torture allegations first arose in 1973, no Cook County judge has granted any relief in any case on the basis that the defendant was tortured or otherwise physically abused by Burge or his detectives,” they wrote. “In stark contrast, since 1987, the Illinois Appellate Court, the Illinois Supreme Court, the U.S. District Court for the Northern District of Illinois, the Seventh Circuit Court of Appeals, the Chicago Police Board, and the Office of Professional Standards have found sufficient evidence of torture and abuse to order substantial relief in at least thirteen additional cases and to make finding of a pattern and practice of torture on at least three occasions.” The state’s attorneys, in a brief heavy with case law, call the defense lawyers’ motion a blatant attempt to forum shop. Citing People v. Dunn, 226 Ill. App. 437, 444 (1922), they say that “It is tantamount to perjury to allege in broad, conclusory terms that all members of the judiciary are prejudiced against a litigant.” The state’s attorneys also argue that the petition is untimely and lacks specificity. “The attorneys that collectively filed this document have been involved in these cases for many, many years. They were all fully aware of who the parties’ potential witnesses were, yet they never complained, never filed motions in front of the individual judges, and this total lack of action for so many years on their part speaks volumes on the veracity of their position,” says Stack. The state’s attorneys also object to the fact that the plaintiffs’ attorneys have not made individual motions for a change of judge to the sitting judges who have been handling the cases for a long time and that they failed to plead specific prejudice by the judges who are handling their cases. The state’s attorneys cite numerous cases, like People v. Hall, 157 Ill. 2d 324, (1993), which say that there is no right to a substitution of judge at a post-conviction proceeding. The state’s attorneys also object to the defense lawyers’ argument that the appearance of impropriety requires disqualification. “Followed to its logical conclusion, no former prosecutors or government defense attorneys could preside over criminal cases,” they say. The state’s attorneys support that argument by citing People v. McLain, 226 Ill. App. 3d 892, 589 N.E.2d 111 (1992), in which the court found that the appearance of impropriety by itself is not sufficient ground for a new trial. The defense team is also asking that Cook County prosecutors be banned from involvement in Burge-related cases. They’ve suggested that a special prosecutor, with no connection to Burge, handle the prosecutions. Defense lawyer Deutsch says he thought oral arguments in January revealed that Biebel was skeptical of their petition. Deutsch says that the chief judge, a former state’s attorney, noted that, according to the defense argument, he has a conflict as well.

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