Chicago City Wire

An attorney representing a convicted murderer claiming that police forced him to confess to the crime is seeking the removal of special prosecutors in her client’s wrongful conviction case. 

The motion to dismiss was filed just hours after the prosecutors challenged the legal authority of the 14-year-old Torture Inquiry and Relief Commission (TIRC), which referred the case of Devon Daniels, convicted for a 1996 double murder, for a new evidentiary hearing in Cook County Circuit Court. The Daniels case is but one of many clients that TIRC has delivered for plaintiffs’ attorneys since its inception.

In her motion, Jennifer Bonjean, Daniels’ attorney, wrote that Fabio Valentini and Maria McCarthy, law firm partners, should be disqualified because they “labor under numerous debilitating conflicts of interest that preclude them from serving as conflict-free Special State's Attorneys and discharging their ethical obligations as prosecutors.”

Specifically, she adds, “Valentini and McCarthy served as felony reviews assistants and/or supervisors during the precise period during which Kato [Kriston Kato, the investigating detective in the case] was coercing confessions from defendants.”

The “People’s Response” to the Bonjean motion to dismiss the prosecutors attacks the timing of the motion. 

"The filing of a specious and unsupported motion mere hours after Ms. McCarthy filed a substantive motion supported by extensive legal precedent shows Ms. Bonjean’s true motivation in her attempt to remove Ms. McCarthy from this case, particularly where there had never been any objections to Ms. McCarthy’s role as the Special Prosecutor at any of the numerous court hearings over the eleven months since her appointment,” the response said. 

In addition, the response notes that the “petitioner’s motion is not only factually inaccurate, it is utterly devoid of any legal merit. Specifically, petitioner wrongly asserts that the CCSAO (Cook County State’s Attorney’s Office) was removed from this matter due to a conflict of interest. Such a statement is blatantly false, as this Court is well aware that even though no disabling conflict of interest existed in any of these cases,..”

McCarty and Valentini were appointed special prosecutors in the case referred to a Will County judge (the case remains under Cook County jurisdiction) due to a potential conflict of interest -- Kato was married to a sitting Cook County judge.

In the case, the special prosecutors asked the judge to dismiss the referrals of TIRC to reopen the cases of two convicted murderers, one being Daniels.

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.”

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, as noted by McCarthy in her memo.

Some of the crimes in the TIRC cases 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.

TIRC has been a pipeline of clients for plaintiffs’ attorneys in wrongful conviction suits, and the payout from the cases has been enormous. According to a recent Cook County Record analysis of city records, the attorneys have won tens of millions of dollars in fees from wrongful conviction lawsuits filed against the city in the past 13 years.

In 2022 alone, former Mayor Lori Lightfoot and Chicago City Council agreed to pay out more than $110 million in settlements and judgments, the Record notes.

That total did not include an additional $6.96 million the city’s Law Department specifically referenced as “legal fees and costs,” meaning additional sums on top of the settlements, earmarked to pay the lawyers who sued the city.