What Does John Doe Know?

The guy blocking the special prosecutor's report on Chicago police torture may be trying to protect more than his own name.

By John Conroy

June 9, 2006

THE RELEASE OF the long-awaited report by special prosecutor Edward Egan and his assistant Richard Boyle, expected to provide considerable detail about torture committed by Chicago police officers under the command of Jon Burge, is being held up by one man, a lawyer fighting hard to keep his testimony under wraps.

In that pursuit, the attorney has pushed the bounds of propriety so far that last fall a judge held him in contempt and ordered that he be apprehended. The attorney is identified in court documents only by the legal pseudonym John Doe, and to date his motions have been kept under seal.

His identity, however, may not be a secret after all.

In a May 19, 2006, ruling that’s not under seal, circuit court judge Michael Toomin provided some details about Doe. Toomin wrote that Doe is a former assistant state’s attorney who left his job on April 30, 1982, that he was subpoenaed to testify before the torture grand jury last fall, and that on October 7, 2005, Doe moved to quash the subpoena, arguing that the statute of limitations had expired on any crimes that might have been committed.

Judge Toomin had been asked to rule on Doe’s motion because Paul Biebel, the chief judge of the criminal court, who appointed the special prosecutor, recused himself from this single aspect of the special prosecutor’s case. Toomin denied Doe’s motion and ordered him to appear before the grand jury on October 14, 2005. Doe didn’t show.

It’s unusual for an attorney to defy such an order. Judge Toomin held Doe in contempt and ordered that he be taken into custody until he complied with the grand jury subpoena. At that point, Doe’s counsel requested that Toomin put the apprehension order on hold until Doe could appeal. Toomin did so, and Doe sought emergency relief in the Illinois Supreme Court, which has historically ruled in favor of the accused torturers at Area Two. The supreme court, however, ruled against Doe on November 7, and soon thereafter Doe, in Toomin’s words, “purged himself of his contempt by appearing before the Grand Jury.”

What he said, or did not say, is not publicly known, but the special prosecutor wanted to mention it in his upcoming report. That brought Doe into court again last month, and now his filings threaten to delay and perhaps even prevent publication of the report.

In his motion, filed in late May, Doe argued that the special prosecutor shouldn’t be allowed to identify him in any way—and then went further, asking Judge Toomin to prevent the special prosecutor from issuing any report at all. Doing so, he argued, would violate grand jury secrecy. In his ruling on May 19, Toomin said that Judge Biebel was the only judge who could decide whether a report should be permitted. (Biebel ruled in favor of publication that same day.) Toomin went on to say the special prosecutor could report on matters concerning Doe that happened outside the grand jury room (for example, that Doe had been subpoenaed, that he had fought the subpoenas, that he had been held in contempt) but could not mention that Doe had testified, what he had said, or how he had acted in the room.

Moments before Toomin’s order was issued Biebel had ruled that the special prosecutor could report on matters that took place before the grand jury—including which cops and prosecutors had been called and which ones had taken the Fifth rather than respond to questions about the torture. (The Fifth Amendment protects witnesses from being forced to incriminate themselves.) Doe made use of the contradiction, going to the Illinois Supreme Court with an emergency motion. That motion is under seal, but a judicial source indicates that it appeals Toomin’s ruling of what can be in the report, asking again that Doe’s name be kept out completely, while also asking the court to rule as to whether a report may be issued at all.

The supreme court is not in session in June. Contrary to other published reports, however, the court often issues rulings when not in session, and it is likely that a ruling will be handed down sometime this month.

The attorney team representing Doe includes Michael Ficaro, who made an appearance in the Burge matter 15 years ago. Ficaro, a former high-ranking assistant state’s attorney and a first assistant attorney general, is the author of various training materials for prosecutors, which is what brought him to the witness stand during the Police Board hearings into the alleged torture of cop killer Andrew Wilson. On March 6, 1991, Ficaro was called to testify by Burge’s attorney, not to support Burge’s innocence but to address the conduct of Lawrence Hyman, the assistant state’s attorney who had taken Wilson’s confession. In taking that statement, Hyman, a veteran prosecutor, made a spectacular omission, failing to ask if the confession had been given voluntarily.

That failure was of particular significance not just because it was nearly unheard-of but also because of the nature, variety, and number of injuries Wilson had sustained in police custody. Photographs of him taken at Cook County Jail showed burns, cuts, and a pattern of scabs, seemingly left by alligator clips, that supported his story of torture, including electric shock, at the hands of Burge and his detectives. A 1990 Office of Professional Standards report concluded that Burge had indeed shocked Wilson, and that report led to the Police Board hearings at which Ficaro appeared to support Hyman. In that 1991 testimony, Ficaro offered a rationale for what the prosecutors thought was an excessive delay in the taking of Wilson’s confession but no justification for Hyman’s failure to ask if the confession had been given voluntarily.

So of the many assistant state’s attorneys whom the special prosecutor might have wished to talk to, Hyman would be high on the list. Pushing him still higher would be the fact that Hyman could testify about what he’d told his bosses— State’s Attorney Richard M. Daley and First Assistant State’s Attorney Dick Devine—about the treatment of Andrew Wilson. Naturally those preparing to prosecute Wilson knew of his allegations of torture. Hyman might be able to explain what Daley and Devine knew, when they knew it, and perhaps what they chose to do— or not do—about it.

In previous testimony on the Wilson case Hyman has said that he left the state’s attorney’s office in June 1982. According to Judge Toomin, John Doe’s “tenure as a public prosecutor ended on April 30, 1982.” If Doe stopped working as a prosecutor on April 30 but had some vacation time and sick days left, he might have officially left the office about the same time as Lawrence Hyman. Hyman has not responded to my message asking for comment.

Hyman, like Doe, appeared before the grand jury, according to affidavits prepared by People’s Law Office attorneys Flint Taylor and Joey Mogul. Those documents report that Taylor and Mogul bumped into Hyman at the Metropolitan Correctional Center last January and that, in the conversation that followed, Hyman complained about the special prosecutor and then told them he’d taken the Fifth Amendment before the grand jury. Taylor says that the affidavits were prepared at the request of the special prosecutor to be used in the John Doe matter.

If Hyman does turn out to be John Doe he would be asking the supreme court to keep secret something he has not kept secret himself.

jconroy@chicagoreader.com

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