Guest Shot: Prosecuting Cop Torture in Chicago is NOT Barred by Statute of Limitations

Statute of limitations doesn't prevent torture charges
July 29, 2006
CHICAGO SUN-TIMES
BY LEONARD L. CAVISE

Well, the City of Chicago has done it again. Because the special prosecutor has refused to indict any of the police officers on Cmdr. Jon Burge's team, we are once again in the position of having to ask the federal authorities to try to clean up Chicago. The special prosecutor's report even acknowledges that a number of police officers frequently beat and tortured police suspects. The prosecutor acknowledges that, in some cases, there is sufficient evidence to support a conviction. So, why won't there be any state prosecutions? Because of the statute of limitations, the report says.

The statute of limitations is a very flexible doctrine. There are a number of reasons why a statute of limitations can be atolled -- or stopped. For example, it can be stopped if a defendant flees the jurisdiction. It can be also be stopped by a doctrine known as equitable estoppel. This theory of law says that if the defendant does something to prevent prosecution, then it's the right thing to do (it's a ''consideration of equity'') to stop the statute from running and extend it until the misconduct of the defendant (e.g., fraudulently concealing his wrongdoing) stops. Are we supposed to believe that some of these police officers didn't get together and decide what to say to the special prosecutor? The special prosecutor even admits that ''all police officers refused to talk to us.'' That happened by chance? There are two ways to go with that fact: Either their joint ''strategy'' is another whole new conspiracy to thwart prosecution (and therefore a whole new statute starts to run), or the statute never started to run at all until the officers stopped concealing evidence.

Actually, there's a third theory: obstruction of justice, one of the contemporary federal prosecutors' favorite new tools. Anybody who does something to throw off an investigation (e.g., lying to the investigators) is guilty of a felony.

Then, there's the matter of the grand jury. The report says that ''we should use the Grand Jury after we had completed our investigation.'' Forget that, typically, the grand jury is a tool of the investigation. You bring the people involved before the grand jury and order them to tell all. The public may not be aware that there is no right to remain silent in the face of a grand jury subpoena. You just can't be prosecuted on what you say about yourself. But you certainly can be compelled to talk about everybody else on the team. How many of these officers were cited for contempt for refusal to talk about things other than their own acts?

The report even says that they didn't want to call police witnesses who might then lie to the grand jury because that would be a ''perjury trap.'' I have to remember that one the next time I see a perjury indictment. Isn't that what prosecutors always do? Is there something unethical about giving them a chance to tell the truth and then indicting them if they don't? Then, what about the box of documents from the state's attorney that didn't even show up until January of this year?

The point is, you don't run a statute of limitations until the famous dome of silence among the police lifts and prosecutors can actually ask some questions about some of this evidence.

One more thing: The report is spiced with conclusions about the ''credibility'' of the people claiming torture. I didn't see much about the credibility of the police officers. I thought this is what juries are for. Aren't they supposed to decide who's credible: the police, the witnesses, the defendants or maybe just the physical evidence (like photographs of beatings)?

So, once again, we look to the federal courts to do the job right. Unfortunately, once again, the City of Chicago talks big but does nothing.

Leonard L. Cavise is a professor of law at DePaul College of Law.