In a hotly debated motion last week seeking to dismiss charges against former Detective David March, ex-officer Joseph Walsh, and Officer Thomas Gaffney in connection with the Laquan McDonald case, defense attorneys pushed the onus of conspiracy away from their clients and onto their accusers, including Special Prosecutor Patricia Holmes.
From the attorneys’ motion:
In the instant case, a combination of various acts or omissions, committed by the special prosecutor, rose to the level of prosecutorial misconduct sufficient enough to establish actual and substantial prejudice, which but for the misconduct, the Special Grand Jury would not have indicted the Defendants. . . . Make no mistake about it, the indictment in this case is the result of politics, not evidence.
The arguments posed by the attorneys suggest that, despite the intense coverage of the case during the trial of the officer who shot Laquan McDonald, Jason Van Dyke, the conspiracy charges against the officers who investigated the shooting may reveal new evidence—and new ways of looking at old evidence.
One focus of the case could be the crucial role of the civilian oversight agency of the police at the time, IPRA.
According to the indictment, the special prosecutor in the case accuses the defendants of attempting to hide video of the incident. Defense attorneys assailed this claim in their motion:
Most confusing of the special prosecutor’s theory . . . was that the video they perceived as the whole truth was collected and preserved by the same police department they alleged conspired to keep the truth from the independent criminal investigators. Indeed, Detective David March and other police officers inventoried the videos and preserved them for others like the FBI and IPRA to view. In fact, IPRA investigators saw the video that night.
Many questions arise from the claim that IPRA saw the video the night of the shooting. If Detective David March did in fact show the video to IPRA investigators the night of the shooting, what possible cover-up by the investigators can Special Prosecutor Holmes be talking about?
But claiming the allegations against March, Gaffney, and Walsh are a sham, defense attorneys may be focusing on other aspects of IPRA’s role in the case, particularly when it comes to the manner by which the agency obtained and dealt with witness statements. That focus may lead to the accusations that IPRA leaked confidential witness information to local journalist Jamie Kalven.
Jamie Kalven writes for an online publication called the Invisible Institute, funded, according to the organization, by the prominent wrongful conviction law firm Loevy & Loevy and the University of Chicago’s Mandel Legal Aid Clinic. It was Kalven’s writing about the Laquan McDonald case that formed the soil from which the officers were later indicted and Van Dyke convicted.
In a breakout story published in February 2015 in Slatemagazine, Kalven claimed to have discovered a new witness, Jose Torres, who, Kalven claimed, contradicted the police narrative:
I recently spoke with a witness, who asked that I not use his name for fear of police reprisals and who has also reported his story to IPRA. He said he came upon the unfolding drama at the moment when McDonald was boxed in by police cars and the construction fence. From this point forward, his version of events diverges sharply from that of the police.
Kalven obtained this secret witness, according to a New York Timesarticle, from Craig Futterman, a professor at the University of Chicago and fervent critic of the police.
The New York Times:
. . . [Kalven] received a tip from a source, passed along by Craig B. Futterman, a former public defender who runs a civil rights clinic at the University of Chicago.
Torres was surprised when Kalven showed up at his house on November 24, 2014, to ask about statements Torres had made to IPRA about the shooting, according to court documents. Torres was reportedly upset that these statements had been leaked so that Kalven could track him down. Torres called IPRA to complain.
But key questions about this period of the Laquan McDonald case have never been explored, questions that may become crucial in the special prosecutor’s quest to convict Gaffney, Walsh, and Marsh.
First, why is IPRA leaking information about a case to two people, Futterman and Kalven, with a profound record of anti-police activism? IPRA investigations are supposed to be confidential. Has this alleged leaker ever been identified, disciplined, or charged? Did Special Prosecutor Patricia Holmes look into this leak?
It wouldn’t be the first time evidence has arisen suggesting IPRA personnel have been accused of leaking information to the media that smears police officers. A former police commander, Glenn Evans, has filed a lawsuit against IPRA accusing investigators and top officials at the agency of leaking documents to the media in an attempt to gin up criminal charges against Evans.
Another former employee of IPRA, Kelvin Lett, has filed a federal lawsuit claiming the former head of IPRA, Sharon Fairley, told him to change his findings in an investigation of a police shooting to make the officer appear culpable.
Even the FOP has filed a complaint with the city’s Inspector General earlier this, claiming that COPA—the city’s oversight agency that replaced IPRA but included many of the same personnel as its predecessor—had been leaking information about police investigations:
These leaks, if true, are violating COPA’s own mandate and undermining the ability of officers to receive a fair, impartial investigation. If wrongdoing is found by your office, responsible employees should be terminated and criminal charges applied.
Second, the fact that Futterman and Kalven seemed to have obtained confidential investigative information from IPRA begs another question: Why didn’t IPRA make Torres’s statements known to the detectives who were investigating the case? What legal right does IPRA have to withhold key evidence in a criminal investigation from the lawful investigators themselves?
The import of these questions is magnified by a review of the detectives’ reports in the case. In a March 15, 2015, report, detectives describe becoming aware of the new witness in the case, presumably Torres, by reading an interview of Futterman in a magazine. Here it is almost six months after the shooting and the detectives have still not been made aware of the existence of a possible witness, Torres, though the case is still open.
When the detectives read the interview of Futterman, they claimed that a detective sergeant had called Futterman to find out more about this witness.
Here is the passage from the report:
The assigned personnel also became aware of an article written by Craig Futterman, a professor at the University of Chicago Law School, citing the existence of an unknown witness to this incident. Futterman was contacted on Thursday, 12 March 2015, in an attempt to interview this witness. Futterman stated that this witness had already been interviewed by the Independent Police Review Authority and Futterman did not know if the witness would be willing to be interviewed by the Chicago Police Department. Futterman said he would contact the witness and provide him with contact information for the assigned personnel.
Now, wait a minute.
IPRA has known about this witness for almost six months, a witness that an activist professor against the police department knows about, but the police do not? Under what authority is IPRA withholding such information from detectives? Why are the detectives learning about it from magazine articles? Is IPRA now the law enforcement agency of Chicago investigating crimes?
Equally important, why is Futterman not cooperating with detectives and producing the identity of this witness? Doesn’t Futterman have an obligation to reveal such evidence to detectives? And when Futterman is asked to produce this witness, Futterman refuses? Did this not stir some interest from Special Prosecutor Holmes?
Is this suspicious conduct of IPRA a sign of what defense attorneys allege are politics guiding the indictment of their clients?
By their zeal at the last hearing, it appears as if the attorneys are confident they can prove their case and ask a central question:
Who truly conspired?