City-Hired Attorneys Defend Former Detective Boudreau, Attack Innocence Petition
Lawyers Also Slam Special Prosecutor Tactics . . .
A Cook County Judge on Thursday rescinded an innocence certificate for a man who had been exonerated for a 1991 murder after attorneys for detectives in the case claimed the man was in fact guilty of the killing and should not be declared innocent by the courts.
Judge LeRoy Martin’s ruling vacates a certificate of innocence given to Arnold Day for a 1991 gang killing. Day had been convicted of murdering Jerrod Erving, a rival gang member.
The judge’s ruling came in response to a motion by attorneys representing retired detective Kenny Boudreau, who was accused by Day and his attorneys of coercing a confession from Day. Boudreau, who is facing similar accusations in a host of other cases, denies any wrongdoing in this case or the others.
Obtaining a certificate of innocence is crucial in transforming convicted killers and rapists into multimillionaire folk heroes at the expense of hardworking detectives and police officers. The reason is that once a certificate of innocence is granted to someone like Day, it is far more difficult to contest the federal lawsuit against the detectives that inevitably takes shape soon after the once-convicted offender is released.
“Detective Boudreau obviously has an interest in this court’s decision to grant Petitioner a COI [certificate of innocence] as it relates to protecting himself and his fellow former officers in the lawsuit Day will inevitably file and which will showcase the COI as critical evidence of his purported innocence. Further, Boudreau has persistently and vehemently denied that Day’s conviction was the result of improper or coercive conduct by him or any other Chicago Police Officer assigned to investigate Jerrod Erving’s murder,” city-hired attorneys wrote on behalf of Boudreau in their motion.
The Fraternal Order of Police and its attorneys have taken aim at the granting of these certificates, encouraging city attorneys to join with the FOP in contesting them and advocating changing the legislation surrounding the issuing of the certificates. Not only would fighting the certificates likely exonerate many detectives, the FOP has maintained, it could also save the city millions in unnecessary and highly suspicious financial settlements.
The motion to fight granting the certificate in the Arnold Day case is actually the second time a party has attempted to contest a certificate to Day. The FOP originally begged the special prosecutor, Robert Milan, to fight it.
“We can think of no logical reason why you would not at the very least oppose the certificate of innocence. The reading of the case indicates that there were two eyewitnesses to the murder, Mr. Day’s confession had been deemed voluntary and freely given, and a jury and many judges have agreed his confession was not the result of coercion. As you are aware, the certificate of innocence allows Mr. Day access to civil remedies that place our members in a legally and financially precarious position, which they do not deserve. We therefore implore you to oppose the certificate of innocence in this case,” Second Vice President Martin Preib wrote to Milan.
When Milan balked on contesting the innocence certificate, FOP attorney Tim Grace filed a motion similar to the one filed by Boudreau’s attorneys, but was ultimately rejected by Judge Martin, who ruled the FOP does not have standing. Afterward, Boudreau’s attorneys filed their own motion that prevailed in court Thursday.
In their motion, the city attorneys echoed the claims of FOP attorney Grace claiming that, despite his release from prison, Day and his attorneys have presented no actual evidence that Day is innocent. Indeed, all the attorneys, both FOP and those hired by city, argue that the evidence overwhelmingly points to Day’s guilt.
But other key issues arise from the ruling.
One is the unbridled attack on the special prosecutor, Milan, by Boudreau’s city-hired attorneys. FOP attorneys, the city-hired attorneys representing Boudreau, and the FOP condemned Milan’s decision not to contest Day’s bid for a certificate of innocence.
The FOP has been critical of the special prosecutor in other cases as well, including the failure of the special prosecutor to prevent the release of once-convicted cop killer Andrew Wilson last year.
But it is also Milan’s tactics in the Day case that came under fire by the city attorneys. In their motion, the attorneys attacked Milan’s actions, claiming they “are tainted with a concerning lack of transparency where transparency should be required.”
For example, the attorneys allege that Milan submitted an “investigative report” to the judge, even though Milan stated the prosecutor was taking no position on the certificate of innocence.
“This court should decide this case on the merits in a public forum to avoid suggestions of impropriety, such as the Special Prosecutor’s failed attempt to submit a privileged ‘investigative report’ for in camera inspection while publicly taking no position,” the motion reads.
The ruling by Judge Martin also touches upon another common complaint by the FOP and accused detectives: the bias of the local media. Judge Martin’s ruling, and the attacks on the special prosecutor by city attorneys, are a profound development in the Day case, revealing that significant players in the case do not believe that Day is innocent and do not believe that he should be granted a certificate of innocence. They have now made compelling arguments twice in Martin’s courtroom.
Yet the media is largely silent about it. When Day was fighting for his exoneration and moving toward a certificate of innocence, he benefited from the fawning coverage by the local media, particularly the Chicago Tribuneand reporter Megan Crepeau. But the bombshell motion by Boudreau’s attorneys and Judge Martin’s ruling in response to it were met with only media silence.
One reason for the Tribune’s silence about the latest developments in the Day case is the fact that it involves former detective Kenny Boudreau. Since 2001, the Tribune has been claiming a pattern of misconduct against Boudreau. But even though the Tribune’s coverage of wrongful convictions has imploded in one case after another, beginning in 2005 in the Anthony Porter exoneration, the Tribunehas maintained their dubious claims about Boudreau, seemingly clinging to a mythology they themselves created, often in contradiction to the plain evidence in the cases.
So fed up are police officers and the FOP with the Tribune’s bias and utter failure to report on these cases fairly, the FOP board voted to cease all communication with their reporters and editors. The Day case is becoming a shining example of why the FOP voted against the Tribune. The sad truth coming from the Day case is that he is likely guilty of the 1991 murder and the detectives are innocent of any wrongdoing. And that’s a bitter pill for the media activists at the Tribuneto swallow.
Talk about a code of silence.