In a legal victory for the Chicago police, a certificate of innocence (COI) granted in early April to convicted murderer Arnold Day has been vacated by the same Cook County judge who originally granted it. Lawyers familiar with the case said that after Judge LeRoy Martin Jr. vacated the COI last Thursday he referred it to another judge for final determination.
A COI, a legal declaration of complete innocence, would have left retired city detective Kenneth Boudreau wide open to civil action from Day, who claimed Boudreau coerced a confession from him for the 1991 murder of a rival gang member, Jerrod Erving, and for the unrelated murder of Raphael Garcia.
In 1994, Day was sentenced to 60 years for the Erving murder but was released in December 2018 based on an investigation by the Illinois Torture Inquiry and Relief Commission into Day’s claim that he was beaten and choked during the interrogation. Judge Martin then granted Day the COI on April 4.
But Boudreau’s lawyers Eileen Rosen, Patrick Moran and Brittany Johnson of Rock Fusco & Connelly LLC argued in a reconsideration motion filed on May 3 that Day’s COI was “rubber-stamped;” no evidence was ever presented to show that he was innocent of the murder. They also argued that before and after his arrest in 1992 Day denied that Boudreau had ever mistreated him.
Boudreau has also repeatedly denied ever physically abusing or intimidating Day.
The motion further said that the “driving purpose of a COI is to permit its bearer to sue the government for damages.” But to gain that right the petitioner must prove his “actual innocence by preponderance of evidence.”
The Chicago FOP has been railing against COIs.
“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,” FOP spokesman Marty Preib wrote in a May 20 post in The Watch, the FOP’s blog.
In the post, Preib also went after the special prosecutor in the Day case, Robert Milan, for not contesting the COI back in March when Day originally petitioned the court.
Preib wrote that the FOP “begged” Milan to fight it.
“We can think of no logical reason why you would not at the very least oppose the certificate of innocence,” Preib wrote to Milan at the time. “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.”
Preib also blasted the media for its scant, slanted coverage of the Day case, and of others.
“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 Tribune and reporter Megan Crepeau,” he wrote. “But the bombshell motion by Boudreau’s attorneys and Judge Martin’s ruling in response to it were met with only media silence.
“So fed up are police officers and the FOP,” he continued, “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 Tribune to swallow.”