Authors: Steve Bogira
Defendant Rogers was convicted even without his confession. In affirming the conviction in 1922, the Illinois Supreme Court took time to praise
Judge Fitch for banning the coerced confession
“at the expense of severe and unjust criticism” and to blast Chicago police for its “criminal practice” of beating confessions out of suspects. The high court directed trial judges to suppress confessions unless they were certain the statements hadn’t been coerced.
Through the years, Cook County judges have largely ignored that direction, suppressing confessions only when the evidence of coercion is overwhelming—and often not even then.
Lawyers for
Andrew Wilson, the man who the city ultimately admitted was tortured by Commander Burge at Area 2, had been unable to convince a judge at 26th Street that his confession had been beaten out of him. At his suppression hearing in 1983, doctors testified that Wilson had sustained at least fourteen fresh injuries the day of his interrogation—cuts that needed stitching on his head, bruises on his chin and torso, and burns on his chest and leg consistent with his account that he’d been forced against a radiator and electically shocked. The interrogating detectives and the felony review attorney who took the confession insisted that Wilson hadn’t been mistreated in any way at Area 2, and the judge deemed the confession voluntary. Wilson was convicted and sentenced to death, but the state supreme court ruled that the confession should have been suppressed. Wilson was convicted on retrial without the confession and sentenced to natural life.
In October 1983—four months before Leroy Orange was interrogated at Area 2—twenty-one-year-old
Gregory Banks confessed there to a murder and armed robbery. At his suppression hearing, Banks said that during his thirty-one hours at the station he was beaten with a flashlight and kicked in his side, stomach, and ankles. Accourding to Banks, one detective put a gun into his mouth and threatened to blow his head off; when he continued to assert his innocence, another detective told him, “We have something for niggers,” and put a plastic bag over his head.
Banks arrived at the Cook County jail with numerous lumps and bruises. But eight police officers and the felony review attorney took the stand and denied that there’d been any abuse at the station. Several detectives maintained that Banks had tried to escape and had been tackled on a stairwell. But a jail doctor said Banks’s injuries were not consistent with a fall down stairs—he’d more likely been struck repeatedly with a blunt object. The judge decided that Banks had confessed voluntarily. In 1985 he was convicted and sentenced to fifty years.
The appellate court reversed the conviction in 1989. Justice Dom Rizzi observed in the ruling that trial judges who “do not courageously and
forthrightly exercise their responsibility to suppress confessions … pervert our criminal justice system” as much as the detectives who do the coercing. The state declined to retry Banks without his confession. In 1993
the city paid him $92,500 to settle the suit he filed.
Leroy Orange didn’t even have a suppression hearing before his trial. His lawyer then, Earl Washington, filed a motion to suppress the confession, but when the judge deemed it legally insufficient, he failed to file another one. It therefore was the jury and not the judge who rejected Orange’s claim that he was tortured and who accepted the word of the authorities that he hadn’t been abused or coerced in any way.
CHICAGO POLICE LIE
“pervasively” in court and “throughout the investigative process”—and their perjury is “nurtured by prosecutors and tolerated by judges,” Myron Orfield asserted in the
University of Colorado Law Review
in 1992.
Orfield’s conclusions were based on the assessments of forty-one Cook County judges, prosecutors, and public defenders he interviewed and surveyed. For a 1987 study Orfield had interviewed Chicago narcotics officers, the majority of whom also said police lie in court. Orfield conducted these studies as a research associate at the University of Chicago Law School. He later served as a special assistant attorney general in Minnesota and a Minnesota state representative.
In the court study, 92 percent of the respondents said police lie “at least some of the time” in motions to suppress evidence; 22 percent said police lie more than half the time. Prosecutors acknowledged telling their police witnesses what they needed to say on the stand if a case was to be won.
Orfield found a “sliding scale of procedural justice” in Cook County. The bigger the case, most respondents said, the more likely police were to lie. “If you got a person for a murder or who sells narcotics to grade school kids, the police are more tempted to alter or fudge their testimony,” a prosecutor said. But most respondents also said judges were less likely to challenge a police officer’s veracity, and suppress evidence, in such “heater” cases, even when a judge suspected an officer was lying. “In the criminal courts in Chicago, the general rule is, the hotter the heater, the less likely the judge will protect the defendant’s constitutional rights,” Orfield said. Seventy-two percent of the respondents, including 58 percent of the judges, said the judges were less likely than they should be to find police testimony incredible in heater cases. Many respondents commented that police testimony “that would not pass muster in a small case suddenly becomes believable in a big case,” Orfield noted. He said judges don’t suppress
evidence in heater cases both because of their personal revulsion to violent crimes and because of their fear of adverse publicity. “Judges can afford to have principles in a small case,” a public defender in Orfield’s study said.
ORANGE
’
S REQUEST
to have his torture allegations reconsidered will be granted only if Locallo is willing to entertain the possibility that the detectives, and possibly the felony review lawyer who took Orange’s confession, lied about the circumstances of his interrogation.
Locallo is a former prosecutor and the son of a police officer—and in that regard, Orange’s chances seem dim.
But there also is reason for Orange to be hopeful. For in Locallo he has a judge who’s learned in a variety of ways that a police officer’s word isn’t gospel—and who’s dared to say so from the bench.
Locallo’s father warned him when he became a judge not to always trust a police officer’s version of events. And Locallo learned this himself as a prosecutor, most notably in the George Jones case but in other matters as well. He learned, for instance, that the “reliable informant” on whose information a police officer bases his request for a search warrant often isn’t as reliable as the officer claims—if the informant exists at all.
In 1979 Locallo prosecuted a teacher and part-time musician who’d been charged with drug possession. Executing a search warrant, police had found cocaine and marijuana in the teacher’s south-side motel room. In a preliminary hearing the teacher’s lawyer asserted that the affidavit submitted to a judge by a police officer to secure the warrant had been a “total fabrication.” In the affidavit the officer had maintained that a “reliable informant” had told him he’d bought $50 of marijuana from the defendant in his motel room at three-thirty
A.M
. on January 17, 1978, and that he’d seen more marijuana in the room. But at the time in question, the defendant had been playing saxophone in a band that was performing at a south-side lounge, according to affidavits from the bandleader, the owner of the lounge, and a waitress at the lounge.
The officer had also sworn in his affidavit that his informant had given him information leading to arrests in seven other drug cases in the previous year. When Judge Kenneth Wendt asked the officer to identify the seven cases, the officer was unable to do so. Wendt granted the motion to quash the search warrant and the evidence resulting from it. “He tried to con me,” Judge Wendt told Locallo, referring to the officer.
As a result of that experience and others like it, Locallo says he now quizzes police officers carefully when they come to his courtroom seeking
his signature on a search warrant. The search of a person’s home is a serious matter, the judge says, and he wants to feel confident he’s not authorizing it based on a perjured affidavit. (If he turns an officer down, however, the officer can shop around for another judge willing to sign.)
Locallo’s father advised him that police would falsify their testimony in drug cases when they’d found the drugs after an illegal search. August Locallo recalls: “I told him, ‘Danny, when these police testify that they saw a suspect walking down the street and he dropped the package, it’s usually bullshit. You can catch a guy seven days a week by just saying he dropped it.’ ”
His son hasn’t limited his distrust of police testimony to penny-ante drug cases. In November 1997 Locallo considered a motion to suppress evidence of two women charged with trafficking five kilos of cocaine—$475,000 worth. The women faced 30 to 120 years if convicted. They’d been arrested at Midway Airport after a DEA agent found bricks of cocaine taped to their abdomens. The women, who were black, were being watched because they’d flown to Chicago from Los Angeles on one-way tickets bought with cash by two male Hispanics shortly before the flight. The case turned on whether the women had consented to the search, as the DEA agent and her partner contended, or whether they’d been forced to submit to it, as the defendants maintained. Locallo said he doubted that someone with bundles of cocaine under her clothes would freely agree to a search. He suppressed the evidence, and the charges against the two women were dropped.
In written opinions in cases in which Locallo has suppressed evidence because he’s disbelieved a police officer, he’s sometimes quoted liberally from a landmark 1886 U.S. Supreme Court case,
Boyd v. United States
. “Illegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations from legal modes of procedure,” Locallo has quoted from
Boyd
. “It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”
Locallo says he realizes that many people think judges are handcuffing cops by scrutinizing their every action and claim. “But the Constitution was set up to guard against the abuses of law enforcement,” he says.
When it comes to the interrogation room, though, Locallo’s concerns about the abuses of law enforcement seem in line with the “sliding scale” that Myron Orfield noted in the Cook County courts. He’s shown a much greater willingness to suppress evidence in drug cases than in cases involving violent crimes. Despite his exposure to police duplicity, he’s been as
reluctant as his colleagues at 26th Street to suppress confessions. By his own estimate, he’s been asked at least a hundred times to suppress a confession by a defendant who’s alleged coercion. After listening to the denials of detectives, and usually also of the felony review attorney who took the confession, Locallo has ruled in every single instance that the defendant confessed voluntarily.
ELEVEN
Father and Son
WHAT MORE COULD
a father do to help his son, once the son got charged with a serious crime, than Frank “Toots” Caruso has done to help Frank Caruso Jr.?
He’s hired the best defense lawyers money can buy. Edward Genson and Sam Adam have represented a congressman, state legislators, aldermen, judges, attorneys, doctors, real estate developers, commodities brokers, and a host of other wealthy businessmen. Now they’ll be going to bat for an eighteen-year-old from Bridgeport. At 26th Street most lawyers would be happy to get $5,000 for an attempted murder case that went to trial. A source close to Genson says Caruso’s defense will easily run into six figures.
The elder Caruso has also fought to counter the news stories portraying his son as a despicable racist. He’s promoted “racial healing” prayer services in Bridgeport and in an adjacent black community, services that have attracted overflowing multiracial crowds. B. Herbert Martin, the prominent black minister who leads the services, stresses the advantages of forgiveness over vengeance, although he’s also assured reporters it is “
highly unlikely” that Caruso beat Lenard Clark.
Father and son are in 302 on a morning in late spring, along with defense lawyer Genson. Genson is going to make a special request to Locallo today regarding Caruso’s curfew. A condition of Caruso’s bond requires him to be home between seven
P.M
. and seven
A.M
., except when he’s working in his father’s cigar shop. Caruso’s first cousin is getting married on Saturday at Holy Name Cathedral downtown, and Caruso would
like the curfew extended so he can attend not only the wedding that afternoon but also the reception at the Hilton that evening.
Locallo isn’t in the courtroom when the Carusos and Genson arrive shortly after ten. The judge started court at nine-thirty sharp, but at ten he left to attend a graduation ceremony at the Cook County boot camp. (The boot camp, two blocks southeast of the courthouse, is a prison alternative for nonviolent offenders, and Locallo has been a big supporter of it.) Deputy Guerrero informs Genson that the judge should be back shortly. Genson communicates this to the Carusos, then takes a seat at the defense table, while the Carusos slide into a bench in the gallery.
The younger Caruso is short, slight, and clean-shaven, with trimmed dark hair, brown eyes, and an olive complexion. He’s wearing a white dress shirt and brown dress slacks. He looks anything but relaxed. This morning, as he has the other times he’s been in court for his case, he mainly studies the ceiling tiles or stares vacantly at the walls while he waits. His brow is constantly furrowed, and he nibbles regularly on his lips, repairing the damage now and then with lip balm.
His fifty-three-year-old father is short and pudgy, with graying curly hair. He’s more casually dressed than Frank Junior—sport shirt, blue jeans, sneakers. He accompanies his son for every pretrial date and uses any waiting time to lobby people in the gallery and in the hallways. “Say a prayer for us, will you?” he’ll implore strangers; or he’ll caution them, “Don’t believe all the things you hear about this case.”