Chicago City Wire

The very legal authority of an obscure state-level commission created to address claims of police torture is under fire in two wrongful conviction cases naming a former Chicago police detective.

Special prosecutor in the cases, Maria McCarthy, has asked a Will County judge to dismiss the referrals of the Torture Inquiry and Relief Commission (TIRC) to reopen the cases of two convicted murderers. Both Devon Daniels, convicted of a 1996 double murder, and Kevin Murray, convicted of a 1987 double murder, claim that then investigating detective Kriston Kato beat them into confessing.

TIRC, McCarthy writes in her memorandum to the court, lacks both the constitutional and statutory authority to refer the cases - as it did in these and many other cases - where police abuse is alleged.

“The plain language of the TIRC Act and the ARL [Illinois Administrative Law], when read together, do not provide a legal basis for evidentiary hearings under the TIRC Act,” McCarthy writes.

She further writes that TIRC referrals are not “justiciable matters,” where “parties with concrete and adverse legal interests have litigated those interests in a civil forum.” This leaves a court with no “subject matter jurisdiction to conduct any review of those determinations under the TIRC Act.”

And she writes that the TIRC Act violates the separation of powers provision in the state constitution; it undermines the judiciary’s authority to dismiss a TIRC claim prior to an evidentiary hearing.

The legislature created TIRC in 2009 in the wake of the much publicized allegations of abuse by Commander Jon Burge, convicted in 2010 of perjury surrounding the allegations. Burge died in 2018. Since then, dozens of wrongful conviction cases have been brought, and settled, over claims of police abuse. Many began their legal journey at TIRC.

But the commission has been criticized by the families of victims, law enforcement, and some in the legal community for its lack of transparency and aggressive, unconstitutional use of extraordinary judicial powers.

In the TIRC cases, no new evidence is presented indicating the innocence of those convicted of the crimes. Some of the crimes go back decades, and witnesses, critics note, are deceased or no longer willing or able to give reliable testimony. Detectives are retired and reluctant to testify in cases in which TIRC commissioners have already determined police misconduct may have taken place.

In one notorious case, Joe Heinrich, brother of 1983 Rogers Park murder victim Jo Ellen Pueschel, discovered from a reporter in 2013 that the case of Jerry Mahaffey, one of two brothers convicted of raping and murdering Jo Ellen and murdering her husband Dean, and the attempted murder of their 11-year-old son Ricky, was before the commission. The family then discovered the commission had failed to notify other family members of victims in a host of other cases.

Heinrich at a September 25, 2013 TIRC hearing: “This Commission has investigated and referred 17 cases to court. I have confirmed that nine of the 17 families of victims of those cases were never notified. By law, each case has three triggers that require victim notification. 27 calls or letters that should have been sent out by this commission did not happen. I spoke to those victims, and they were shocked. I have reviewed all of the posted minutes from your meetings and not one Commissioner ever asks about the victims, if they were notified or what they had to say. Either all of you believed that the victims did not want to be bothered with this, or all of you did not want to be bothered with the victims. Which is it?”

The evidence against Mahaffey and his brother, Reginald, was overwhelming: a third brother turned them in; they confessed to a state’s attorney; property taken from the Pueschels was found in both their apartments.

But some TIRC members concluded that credible evidence existed that the detectives had tortured Mahaffey even though former prosecutor Irv Miller testified before the commission that Mahaffey never complained about a police beating, or showed any signs of a beating or discomfort when he was in a room at a police station with him and a court reporter.

In another example, in 2015 TIRC recommended the reopening of the case of Jackie Wilson, who was sentenced to life without parole for his role in the 1982 murders of police officers Robert O’Brien and William Fahey. Wilson claimed he was tortured into confessing.

In 2018, a judge ordered Wilson released on bond. Prosecutors appealed the ruling but in December 2019, the Illinois Appellate Court upheld the decision.

In 2021, Wilson sued in federal civil court for wrongful conviction. One of those named in the lawsuit was former prosecutor Lawrence Hyman. Hyman’s attorney, Ed Theobald, filed a motion in the case challenging TIRC’s constitutionality.

At the same time, Theobald’s motion launched a broadside against Illinois Attorney General Kwame Raoul, who, as a state senator, sponsored the legislation that created TIRC.

Theobald wrote: “Instead, both Jackie Wilson and Kwame Raoul have offered no constitutional rationale explaining how an administrative agency under the Executive Branch, appointed by the Governor, could create a re-do after Plaintiff Jackie Wilson was found guilty in two separate murder jury trial convictions by Illinois Courts. Under the Illinois Constitution, the Illinois Governor is the only Illinois Executive who can rescind or vacate final orders of the Judiciary, not Jackie Wilson’s criminal defense lawyers serving as the Director of TIRC or others not empowered by the Illinois Constitution of 1970.”