Cover-up or true separation of power?

The Special Counsel, appointed by Presiding Criminal Court Judge Paul Biebel, authored a letter to the Criminal Justice Committee of the Cook County Board. Edward Egan and Robert Boyle, the lawyers appointed by Judge Biebel to investigate the 20 years of allegations of torture at the hands of Chicago Police Detectives, authored this letter. You can watch a video of the hearing here.

The report they authored as a result of the four-year $7 million investigation drew wide criticism from many people involved in the fight to expose the actions of the Chicago Police from 1972-1992. The main criticism about the report was that the Special Counsels did not pursue the investigation with the vigor a prosecutor normally would pursue a criminal investigation. You can find a response to the Special Prosecutor’s report authored by community members and lawyers representing victims in digital format in our FOI Center.

The community members that authored the response to the Special Prosecutor’s report engaged the Cook County Board in an attempt to motivate the board to instigate hearings. The hearings were to find out why the Special Prosecutors took such a lax attitude in conducting their investigation. The hearings were an attempt to create a public venue for both the Special Prosecutors and community members to air their views about the investigation and the report.

The Special Prosecutors failed to attend the hearings and instead authored a letter in response to their invitation. The letter accused the Cook County Board of being used by community members and lawyers representing victims who are just seeking to extort cash from the County through their ongoing civil suits. The letter also stated that the Special Prosecutors were part of the executive branch of government and thus were not beholden to the Cook County Board. They also stated that in order to maintain the separation of powers they could not participate in the hearings.

Two main questions generated from reading this letter are:

1. To what degree are the Special Prosecutors answerable to the entities, namely the Cook County Board and the taxpayers of Cook County that paid the gentlemen for their work?

2. If as the letter states the Special Prosecutors are part of the executive branch, are they not answerable to the taxpayers of the county for which they are working? If so, then would not the Special Prosecutors be answerable to the people’s elected representatives?

In their letter, the Special Prosecutors bring up an interesting point about how the Cook County Board could not subpoena Cook County State’s Attorney Dick Devine in an effort to propel Mr. Devine to discuss why or why he did not seek an indictment against and individual. “We conclude it would be contrary to law and would set a very bad precedent if we were to subject our office to such questioning as may be submitted to us by the members of the County Board,” (Letter to County Board, 2007, p. 1).

While this quoted line of reasoning seems logical it is also born of a very undemocratic process. Are not all offices of government beholden to one degree or another to the taxpayers that pay their salaries? The only answer to this question in a democratic society is yes. Then the question is how exactly are prosecutors, special or not, answerable to the people and their elected representatives? The answer is they are accountable to the people’s representatives, thus the Special Prosecutors are answerable to the Cook County Board at least at a bare minimum level.

In their letter the Special Prosecutors talk about how the separation of powers prohibits the Cook County Board from calling into question and dealing with how Dick Devine or other prosecutors conducts their work. I guess a reasonable question is who exactly are the prosecutors answerable to if not the people through their elected officials? In this case the Special Prosecutors were appointed by Presiding Criminal Court Judge Paul Biebel. Are they answerable to the judge then? This would be unique to see the executive branch of government; at least this is what the Special Prosecutors categorized themselves as, being answerable to part of the judicial branch. Maybe the Special Prosecutors are not answerable to anyone, that is why they are so special!

One of the greatest issues surrounding the administration of justice in Cook County and Chicago has been the level impunity prosecutors enjoy. Throughout the entire Burge torture saga from 1972-1992 the role prosecutors have played has been ignored for the most part. Following the logic detailed by the Special Prosecutors, the prosecutors are immune from having their actions questioned by the taxpayers that pay their salaries. This attitude has led to the creation of a branch of the criminal justice system being beyond the reach of legislators and policy makers.

American history is replete with examples of abuse of power by individuals and institutions that viewed themselves beyond the rule of law. The role of the Cook County State’s Attorney’s Office in obtaining tortured and false confessions have been shrouded in secrecy for three decades. A prosecutor from the Cook County State’s Attorney’s Office receives every confession associated with a violent crime. When the confession is obtained through torture or other coercive methods there certainly is some responsibility lay at the feet of the prosecutors. The media and policy makers have ignored this responsibility for three decades and the Special Prosecutors continued this process by conducting the lax investigation they did.

It is extremely important that the Special Prosecutors are motivated to participate in a public forum that will allow the public to question their methods and practices in their 4 year $7 million investigation. The public needs to understand the finer points associated with the institutional behavior that allowed these practices to occur for two decades. The public needs this information to assist them in making sure the institutions involved are not repeating their historical practices. Without this information the public is lacking the information they need to make informed and intelligent decisions about the current practices of the criminal justice agencies working in their communities. If you fail to understand your history, you are doomed to repeat it.

Coming in the next couple of weeks an analysis of the pay received by Special Prosecutors Edward Egan and Robert Boyle.