Chicago City Wire

On October 20, Will County Judge David Carlson is expected to rule whether a commission created to investigate claims of police torture, the Torture Inquiry & Relief Commission (TIRC), has the authority to refer cases, many of them decades-old murder cases, for new evidentiary hearings. The ruling could strip TIRC of its power to reopen old cases, and cut off a pipeline of clients for plaintiffs’ attorney who have filed dozens of wrongful conviction cases set in motion through TIRC investigations.

Last week, special prosecutor Maria McCarthy argued before Judge Carlson in the case of convicted murderer Devon Daniels that TIRC lacked both the constitutional and statutory authority to refer his or any case for a new hearing. Daniels alleges that retired Detective Kriston Kato tortured him into confessing to a 1996 double murder. Last October, TIRC found the case worthy of review.

McCarthy, and her law partner Fabio Valentini, were appointed special prosecutors in the Daniels case, and another Kato case, that of Kevin Murray convicted of a 1987 double murder. The cases were referred to a Will County judge (the case remains under Cook County jurisdiction) due to a potential conflict of interest.

TIRC, McCarthy wrote in an earlier memorandum to the court, lacks both the constitutional and statutory authority to refer the cases for new hearings where police abuse is alleged.

“…the TIRC Act cannot provide a legal basis for the circuit court to conduct an evidentiary hearing based upon a TIRC referral,” McCarthy wrote in her memo. “First, the TIRC Act incorporates the Illinois Administrative Law (the “ARL”) and the ARL specifically states that upon administrative review, “[n]o new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the [circuit] court.” Thus, the plain language of the ARL prohibits an evidentiary hearing to determine whether torture likely occurred. Moreover, the ARL does not authorize the remedies that Daniels seeks in a TIRC Referral.”

She further wrote 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.

Between 2019 and 2021, Chicago taxpayers shelled out $91.3 million to resolve wrongful conviction lawsuits, according to a recent WTTW analysis.