Chicago City Wire

Clayton Harris, Democratic candidate for Cook County State’s Attorney and darling of Toni Preckwinkle and the Chicago Teachers Union, recently gave Kim Foxx an “A” grade for her seven years running the office. He’s especially fond of her work in exonerations, he said in a recent interview.

Whether Foxx's legacy will continue will be determined in next Tuesday's primary when Harris faces Eileen O'Neill Burke in the Democratic primary. 

Convicted cop killer Jackie Wilson undoubtedly knows all about it; he’s about to hit the jackpot in Foxx’s wrongful conviction craze. Wilson’s lawyers in his civil case alleging police abuse recently cut a settlement deal with Foxx's office. Now the 63-year-old man twice convicted for his role in the execution-style murder of two police officers will soon become a millionaire six years after being freed from prison, and 42 years after Richard O’Brien, 33, and William Fahey, 34, were gunned down on a bleak February day on a South Side street. The deal with Foxx, the top thoroughbred in the George Soros stable of prosecutors, was cut after just two depositions were taken in a case with more than a dozen defendants.

The Wilson story, like the dozens of other exonerations and payouts under Foxx, are lapped up by an obedient press.

The juxtaposition of a wronged black man made whole against the horror of him rotting in jail – or even worse awaiting execution – thrills readers hungry for justice from a criminal justice system stacked against people of color.

Coverage typically chronicles the efforts of wrongful conviction activists, often working in tandem with plaintiffs’ attorneys. They dive back into details of the cases, some of them decades old, and find the actions of police and prosecutors rife with misconduct and incompetence. Reports of their findings are imparted to the press with suggestions, or outright charges, of racism. In sum, one-sided narratives say the cops beat confessions out of innocent black and brown men, and conspired with prosecutors to slam dunk convictions.

Few have dared to publicly challenge the narrative as they are up against more than simply the details of a case recast by the activists and lawyers. They would be questioning the unquestionable, the canons of systemic racism, and undermining the indoctrination of a public to believe that the claims of misconduct and racism against cops are invariably true (making them the bad guys and the alleged perpetrators the victims). All the while, their foot soldiers in the press pump out the narrative to maintain the myth as truth.

One of the few who has challenged it doesn’t exactly fit the mold of the outraged law and order guy. While Joshua Marquis is a former prosecutor from Oregon, he proudly characterizes himself as a life-long Democrat. Marquis was co-chair of the Media Relations Committee of the National District Attorneys Association (NDAA) when the Chicago Tribune ran a series of stories in 1999, “Trial & Error,” that former prosecutors say ignited the wrongful conviction movement in Chicago - which has spread nationwide.

Marquis then hired a recent law school graduate to review the nearly 400 convictions the Tribune claimed were wrongful convictions.

“We then relied on actual court opinions, not bar-room gossip,” Marquis wrote in an email. “We discovered that over 50% of the cases where the TRIBUNE had claimed ‘exoneration’ were in fact guilty pleas, plea bargains to lesser degrees of homicide or other resolutions that could not possibly fit any definition of ‘exoneration.’”

“In about 15% of the cases,” he continued, “the defendants were ultimately convicted of the original charges (sometimes after years of appeals) and even more disturbing in slightly more than 10% of the cases we could find no official records detailing what ever happened with the cases."

One of the series authors, Maurice Possley, now with the National Registry of Exonerations, did not respond to Chicago City Wire's request for comment.

The Trial & Error series and a later Tribune series, “Failure of the Death Penalty in Illinois” by Ken Armstrong and Steve Mills, were finalists for a Pulitzer Prize in 2000, but did not win. The NDAA, the Illinois State’s Attorneys Association, and Cook County prosecutors blistered the reporting in a letter to the Pulitzer Prize Board. Marquis said that he couldn’t be sure if the letter influenced the Board’s decision.

Another who has focused his fight in Cook County is handicapped by being one of the bad guys in the eyes of the press. Martin Preib, a former Chicago cop and spokesman for the city’s police union, first struck out against the narrative in his book “Crooked City,” published in 2014, and continues the fight today through a blog published under the same name on Substack.

“In 2005, my best friend on the job got shot and the case immediately began moving into the absurd with claims of racism against him,” Preib said when asked what stirred his interest in the cases. “It culminated with Quinn [former Gov. Pat Quinn] releasing the convicted offender, Howard Morgan from jail [in 2015]. I was furious.”

Preib also took an interest in allegations against former Commander Jon Burge that he tortured suspects into false confessions. Burge was acquitted of the charges in a civil suit in 1989. But then later convicted on federal charges of perjury and obstruction of justice in 2010. He was released from prison in 2014 and died in 2018.

Any detective even remotely associated with Burge has been marked by wrongful conviction activists, plaintiffs’ lawyers and the media as Burge proteges. The cops call it “getting Burged.”

One is retired detective Kenneth Boudreau who worked under Burge briefly in the early 1990s but had little contact with him before being shipped off to fight in Iraq. Boudreau has grown so disgusted at the claims in at least a dozen civil wrongful conviction suits against him and his former partners that he’s disregarding the advice of city attorneys and speaking out against the allegations. Now the head of a successful security firm, he plans a complete scrutiny of his cases, and a PR campaign, to clear his name.

He was prepared to take the stand in one recent civil case surrounding the 1992 murder of college basketball star Marshall Morgan Jr. He never got the chance. In September, the Chicago City Council approved a $17.5 million settlement for Tyrone Hood, who served 22 years in prison for the murder and $7.5 million for Wayne Washington, who served 14 years.

Hood and Washington claimed that Boudreau and his partner Jack Halloran fabricated evidence, and pressured witnesses to testify against them. Washington also claimed that he was beaten into a false confession. Boudreau says the allegations are a lie. 

In one motion in the case, city attorneys, representing Boudreau and Halloran, said that no evidence existed to exonerate Tyrone Hood for his role in the murder.

“Rather, it [the eventual reversal of the conviction] was the product of an intense media campaign by Hood’s attorneys involving local and international celebrities, ‘friendly reporters’ and, primarily, The New Yorker Magazine,” the motion states.

The media campaign was orchestrated by The Exoneration Project (EP), an activist organization associated with the plaintiffs’ firm of Loevy & Loevy, which represented Hood.

The campaign “was designed to try Hood’s case, unopposed, in the court of public opinion in order to get then-Gov. Pat Quinn’s attention and convince him to release Hood [which he did in 2015],” the attorneys stated.

Quinn admitted as much in a 2015 panel discussion at the University of Chicago Law School that the New Yorker story strongly influenced his decision to commute Hood’s sentence. In the story by Nicholas Schmidle, Hood claimed that detectives “slapped him in the head and thrust a gun in his face” in an attempt to get him to confess. Schmidle also pointed to Morgan’s father as the real killer.

“Critical facts were omitted from the story to cast doubt on Hood’s guilt and portray Morgan Sr. as the culprit,” the city attorneys said in one motion. For example, the story suggests that Morgan Sr. had a financial motive for the murder – he bought a life insurance police for his son just six months before his death.

“However, the article omits several important facts that undermines the insurance fraud theory and puts the procurement of the policy in proper context,” the attorneys said. “Morgan Sr. had actually purchased life insurance for Morgan Jr. as far back as 1985, almost eight years before the murder, through a rider to his own life insurance policy.”

In addition, the New Yorker story suggests that the victim’s mother, Marcia Escoffery, believed that Morgan Sr. committed the crime and should be prosecuted for it.

But during a deposition in the case, Escoffery said she had been misquoted in the story, and that reporters had repeatedly pressured her to implicate Morgan Sr. in the crime.

What’s more, a key witness in the case was pressured by a gang member to recant his testimony, and that evidence should have been permitted in the civil trial, city attorneys argued in one motion.

Getting surviving witnesses to recant is key in winning exonerations and the follow-up wrongful conviction cases. In 2013 Chicago attorney James Sotos, in a letter to then Cook County State’s Attorney Anita Alvarez, listed numerous instances where private investigators have allegedly pressured witnesses to change their testimonies.

One of the most infamous surrounds Anthony Porter, convicted in 1983 of the murder of two teenagers in a South Side park. A 2014 documentary film of the case, “A Murder in the Park,” alleges that in 1999, private investigator Paul Ciolino pressured another man, Alstory Simon, to confess to the shootings.

The Simon confession resulted in Porter’s release from prison in 1999. A year before that Porter was granted a reprieve just two days before his scheduled execution. The public shock of Porter’s near execution for a crime that appeared he did not commit led to the abolition of the death penalty in Illinois.

Ciolino worked the investigation with Northwestern University Journalism Professor David Protess, who at the time directed the Innocence Project, a Medill School of Journalism effort which identified and worked to free those who are wrongfully convicted. A group of Protess’s journalism students also aided in the investigation.

The case turned on its head again when in 2014, Foxx’s predecessor Anita Alvarez ordered Simon’s release, saying at the time: "This investigation by David Protess and his team involved a series of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement standards, they were potentially in violation of Mr. Simon's constitutionally-protected rights.”

In 2011, Protess left Northwestern after the University investigated his actions in a separate murder conviction, that of Anthony McKinney— another case cited by Sotos in his letter to Alvarez— from fall 2003 through spring 2006. At the time, Northwestern released a statement that said in part: “Protess knowingly misrepresented the facts and his actions to the University, its attorneys and the dean of Medill on many documented occasions. He also misrepresented facts about these matters to students, alumni, the media and the public.”

In 2018, Ciolino sued the makers of "A Murder in the Park" for defamation. That case is ongoing.

In another instance reported recently by Chicago City Wire, a private investigator and a plaintiff’s attorney approached a witness in the 1987 arson murder of seven on the South Side, including the wife and infant son of the convicted murderer, according to a 2000 deposition in a case against Commander Jon Burge.

Andre Council, one of two witnesses who saw Madison Hobley buy gasoline the day of the murders testified that he was approached at his home by former DePaul law school professor, Andrea Lyon, now in private practice, and a man he identified as Ciolino. Council said that Lyon and Ciolino promised his daughter a free ride at DePaul, and that he would never have to work another day in his life if he changed his testimony.

When asked about Council’s testimony, Lyon wrote in an email to Chicago City Wire, “that never happened.”

In 2008, Hobley was awarded $7.5 million in a wrongful conviction settlement. 

Wrongful conviction activists and plaintiffs’ lawyers also look to the Torture Inquiry & Relief Commission (TIRC) for clients. Created by the General Assembly in 2009, TIRC has extraordinary authority to refer cases where police abuse is claimed to judges for new evidentiary hearings.

TIRC has been criticized by the families of victims, law enforcement, and some in the legal community for its lack of transparency and aggressive, and what some argue are unconstitutional powers.

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 said: “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.

It was TIRC that recommended the reopening of the Jackie Wilson case.

In September, Chicago City Wire sued Foxx’s office for not responding to Freedom of Information Act (FOIA) requests for documents surrounding some of the exonerations, requests filed six months earlier. The FOIA law requires a response within five business days. After a January court hearing, the office agreed to release some documents and asked for more time to release more. It still has yet to comply with the law.

Last April, Foxx announced she would not seek another term in office. With less than a year left in office, she is apparently doubling down on her exoneration mission – she has more than 200 to her name so far. In December, she appointed an advisor, Michelle Mbekeani, a wrongful conviction advocate who never prosecuted a case, to head the office’s Conviction Review Unit. In January, a Cook County judge banned her from his courtroom for lying about a side business she runs that connects inmates claiming innocence with defense attorneys.

The Democratic primary for Cook County State’s Attorney is March 19.