In the end, the statute of limitations–a law designed to safeguard the rights of criminal suspects–appears to have saved former Chicago Police Cmdr. Jon Burge.
In a long-awaited report, special prosecutors said Wednesday there was proof beyond a reasonable doubt that Burge and four other former officers abused suspects to extract confessions in the 1980s.
But prosecutors Edward Egan and Robert Boyle also concluded that none of the men can now be charged with a crime because the state’s three-year time limit on felony charges has passed.
“We have considered every possible legal theory that would permit us to avoid the effect of the statute of limitations,” the report said. But “regrettably, we have concluded that the statute of limitations would bar any prosecution.”
The prosecutors were appointed in 2002 to investigate claims that Burge and detectives working under him routinely used torture, including electric shock, Russian roulette, beatings and attempted suffocation.
A lawyer for the community groups that petitioned to have the prosecutors appointed sharply criticized the report on Wednesday.
“There needs to be certain zeal, a certain fire in the belly,” said Locke Bowman, attorney for the groups, including the Chicago Council of Lawyers. “This document just reeks of evasion.”
Burge continues to face civil lawsuits stemming from the alleged torture of suspects, including four former Death Row inmates who sued the City of Chicago, Burge and other detectives.
Bowman said he hopes federal authorities will revisit the Burge case, though the special prosecutor’s report says the Justice Department’s criminal prosecutors and civil rights attorneys already have declined the case because of the statute of limitations.
The purpose of the statute is to force prosecutors to bring criminal charges while the evidence is still fresh. Wait too long, the theory goes, and key witnesses may have relocated and documents may have disappeared. The accused’s own memory of the incident may have faded.
“After that point, the risk of an unfair result is unacceptably high,” said Mark Rotert, a defense attorney and former federal prosecutor in Chicago.
But the law also recognizes exceptions. There is no statute of limitations for murder, because of the seriousness of the crime. Also, the statute does not start until after the alleged crime is first revealed.
In the report, Egan and Boyle said they carefully researched potential ways around the three-year time limit.
The community groups had urged them to consider a conspiracy charge. Their theory was that although the allegations against Burge and others surfaced in the 1980s, the officers were part of an ongoing conspiracy to keep silent about and cover up those earlier crimes.
Egan and Boyle devoted 19 pages of legal analysis to the topic in their report but concluded Illinois courts would not accept that theory.
In the report, the special prosecutors also discussed whether they could have enticed officers to commit perjury before a grand jury–then prosecuted them for that crime.
Under that approach, the prosecutors would call police officers before the grand jury and force them to answer questions under oath about the long-ago interrogations of suspects such as Andrew Wilson. False testimony could constitute perjury.
But Egan and Boyle rejected this tactic, calling it an impermissible “perjury trap.”
Though the report dismisses the possibility of criminal charges against Burge or other Area 2 officers, the evidence the special prosecutors uncovered could find its way into various civil lawsuits.
In civil court, plaintiffs need only prove their claims are more likely than not to be true–a lesser burden of proof.
The report “is not exactly an endorsement that [police] didn’t do it,” said Kurt Feuer, an attorney for Madison Hobley, one of the four former Death Row inmates who have filed civil suits.
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mjhiggins@tribune.com
