The Watch

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Prosecutors Ignoring Evidence of Misconduct In Wrongful Conviction Claims?

Is Cook County State’s Attorney Kimberly Foxx deliberately ignoring key evidence in corruption claims against a retired Chicago Police detective?

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More and more it looks as if Foxx and her second in command, Eric Sussman, are doing just that. Last week Sussman declined to re-prosecute two men, Arturo Reyes and Gabriel Solache, who had been convicted of the 1998 double murder of a couple in their apartment, along with the kidnapping of the couple’s two children.

The release of the two men from prison, whisked away by immigration officials to be deported to their native Mexico, signified a possible breakthrough in the crusade by a consortium of wrongful conviction attorneys to build a pattern and practice claim of misconduct against retired detectives Ray Guevara. That breakthrough was achieved in large part when prosecutors, seeming to side with wrongful conviction attorneys, forced Guevara to testify earlier this year about the case by granting Guevara immunity. But by being granted immunity, Guevara could no longer plead the Fifth and remain silent.

Guevara’s attorney attacked the prosecutorial tactics as a “perjury trap,” forcing Guevara to testify so that they could later leave him open to perjury charges. Sure enough, after Guevara testified, Circuit Court Judge James Obbish declared that Guevara was lying.

From the Sun-Times:

A Cook County judge Wednesday ruled that retired Chicago Police detective Reynaldo Guevara lied on the witness stand last month when the 74-year-old testified he didn’t beat confessions out of two men now serving life sentences for murder.

 Judge James Obbish threw out confessions from Gabriel Solache and Arturo DeLeon-Reyes, giving a thorough dressing down to prosecutors and condemning Guevara for giving “bald-faced lies” when questioned under oath in October about his interrogations of the two men.

By forcing Guevara to testify, prosecutors have now opened the door to further accusations against Guevara and the building of a pattern and practice claim so essential to massive wrongful conviction law firms in their quest for multimillion-dollar settlements from the city.

But in doing so, prosecutors like Sussman may be walking into a legal land mine of their own. Sussman may be ignoring seminal evidence against Guevara’s accusers as he allows the claims against Guevara to proceed. By law, prosecutors must reveal evidence that may be exculpatory against any defendant, called the Brady Rule:

. . . the prosecutor must disclose evidence or information that would prove the innocence of the defendant or would enable the defense to more effectively impeach the credibility of government witnesses.

 The most problematic case for prosecutors in the pattern and practice theory against Guevara may be Armando Serrano. Serrano and two other men were convicted of murdering Rodrigo Vargas in 1993. Serrano’s conviction was based largely upon the testimony of another man, Francisco Vincente.

Like so many wrongful conviction claims, Serrano was able to obtain his freedom when Vincente retracted his statement to investigators from Northwestern University.

Here is the fly in the ointment for Sussman and Foxx: Northwestern is currently facing a $40 million lawsuit alleging that the school engaged in a pattern of misconduct, including obtaining false affidavits. The lawsuit, which also names former professor David Protess as a defendant, arises in connection with the 1999 exoneration of Anthony Porter.

The lawsuit was filed by attorneys representing Alstory Simon, who claims he was coerced by a private eye working with Protess into confessing to the murders that Porter actually committed. 

Here is what Simon’s attorneys allege in the lawsuit: 

. . . Northwestern, through its employee and/or agent Protess, improperly used the journalism students, in this case and others, as pawns to deflect public scrutiny from the blatantly illegal and unethical investigative techniques routinely employed by Northwestern’s employees and/or agents to generate statements from witnesses without regard to the truth or falsity of those statements.

Northwestern’s conduct permitted a culture of lawlessness to thrive in Protess’ Investigative Journalism classes and investigations, which not only placed Northwestern’s students at an alarming risk to their own safety, but also resulted in the crimes perpetrated against Simon.

 One allegation against Protess cited in the lawsuit from another case is particularly disturbing:

 Protess also told the eyewitness that he could have sex with either of two Northwestern Medill students if he would change his testimony.

 Similar allegations of bizarre and suspicious conduct have been made against Protess in the Serrano case—again, one of the cases that comprise the alleged pattern of misconduct against Guevara.

From the Chicago Tribune in 2010:

Prosecutors on Tuesday unveiled documents that suggested students and staff with Northwestern University’s Medill Innocence Project arranged a visit from a female student as a “treat” for a prisoner, in addition to making unspecified promises, before he recanted his testimony in a 1993 murder and armed robbery case.

The filing included three memos and an e-mail sent by students of Northwestern journalism professor David Protess to an attorney representing convicted murderer Armando Serrano, who is seeking a new trial.

The memos include suggestions that Francisco Vicente, who testified against Serrano but later recanted to the students, was upset that a private detective who works with Protess failed to come through with unspecified “considerations.”

In addition, an e-mail sent by a student investigating the Serrano case stated that a female former student agreed to join a visit to Vicente in prison after he requested her presence.

“(The woman), a previous student of David’s who worked on the case and formed a good relationship with (Vicente), will accompany us as a ‘treat’ for him, since he has requested to see her again,” the student wrote in an April 2004 e-mail to Serrano’s lawyer, Jeffrey Urdangen, a Northwestern law professor.

Other attorneys are arguing that Protess engaged in misconduct in another federal wrongful conviction claim:

Witnesses from whom Protess procured recantations in other criminal cases have since come forward alleging that Protess and his team of investigators used coercion in various forms—dangling young female college students as sexual bait, impersonating movie producers, promising book/movie deals, making cash payments, and promising convicted murderers their freedom from prison—to procure false recantations from them.

 A host of depositions have already taken place in both these lawsuits. Tens of thousands of documents have been turned into evidence.

If Foxx and Sussman proceed with criminal charges against retired Detective Guevara, all this evidence should be available to Guevara’s legal team as part of the Brady Rule. Guevara may be able argue that he, too, is the victim of Northwestern chicanery.

The FOP would certainly push for it.

But even if Guevara is not charged with perjury, Cook County prosecutors have a deep legal and moral obligation to subpoena this evidence in connection with the Guevara cases. Indeed, they have an obligation to subpoena it for any police officer accused of misconduct by Northwestern University attorneys.

Sussman’s failure to subpoena this evidence in light of the accusations against Guevara casts a dark shadow over his actions and the Foxx administration. It points to a politicalization of the prosecutor’s office on a scale never witnessed before.

And the police have had enough of it.