Chicago City Wire

An obscure 14-year-old commission that investigates claims of police torture, and has become a pipeline of lucrative wrongful conviction cases for plaintiffs’ attorneys, is “very perilous to our system,” a Will County judge has ruled.  

“There is an old saying that the road to hell is paved with good intentions, and I think that is absolutely appropriate when reviewing the TIRC statute,” Associate Judge David Carlson ruled on October 20 as part of a post-conviction hearing for two convicted of double murders. “The act itself skirts very closely to the edge of constitutionality,” he continued. “It also calls into question whether or not the TIRC statute in and of itself impugns the integrity of the judicial system of the third branch of government…”

Besides taking a shot at the TIRC law, the judge also dismissed the TIRC referrals for new evidentiary hearings of Devon Daniels, convicted of a 1996 double murder, and Kevin Murray, convicted of a 1987 double murder. Both alleged that former Chicago police detective Kriston Kato tortured them into confessing. But without holding an evidentiary hearing, Judge Carlson ruled that “in reviewing the claims solely within the purview of the TIRC statute, accepting the evidence and findings for purposes of an evidentiary proceeding, I’m going to find that the defendants have not met their burden.”

In a key determination, he added that the TIRC law gives a judge discretion regarding evidentiary hearings. 

"I have satisfied the terms of TIRC," Judge Carlson said. "I have satisfied the idea that there has to be an evidentiary hearing, and I am giving the weight of the pleadings presented and the evidence and facts contained within a factual determination that it is not sufficient to go forward on a TIRC claim."

Special prosecutor in the cases, Maria McCarthy, challenged the Daniels and Murray TIRC referrals on constitutional and statutorial grounds, arguing in part that the TIRC statute, approved by the General Assembly in 2009, incorporates a state administrative law, which undermines TIRC's authority to refer cases for new evidentiary hearings. 

“…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 a memo filed earlier in the case. “First, the TIRC Act incorporates the Illinois Administrative Review Law (the “ARL”) and the ARL specifically states that upon administrative review, '[no] 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.”

Her arguments could be taken up in dozens of other wrongful conviction cases that began as TIRC referrals.

The legislature created TIRC in the wake of allegations that former police Commander Jon Burge (now deceased) tortured suspects into confessing to murders. TIRC has referred dozens of cases for new evidentiary hearings based on allegations that not only Burge but other police officers tortured suspects. Many have resulted in exonerations and wrongful conviction payouts by the city, with the once convicted murderers and their lawyers raking in millions.

But the unelected commission members have come under criticism by the families of victims, law enforcement, and some in the legal community for their lack of transparency and aggressive, unconstitutional use of extraordinary judicial powers - including their determination as to what counts as evidence in a case - 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.

Since 2019, Chicago taxpayers shelled out $178 million to resolve wrongful conviction lawsuits, according to a recent WTTW analysis.

The case is before a Will County judge, but remains under Cook County jurisdiction, due to a potential conflict of interest—former Det. Kato is married to a sitting Cook County judge.