EDITORIAL: The dismaying sight of two cops on one day taking the Fifth

Only in Chicago.

On Tuesday, a Chicago Police officer and a retired Chicago police officer both took the Fifth Amendment — declining to testify so as not to incriminate themselves — in two separate courtrooms in two separate cases.

What a sad commentary on the Chicago Police Department. What a sad reminder that reform of the police department must continue full bore, with federal judicial oversight.

In one of the two cases Tuesday, retired Chicago Police Detective Reynaldo Guevara was called to the stand as a witness in a proceeding in which two men claim the retired detective coerced them into confessing falsely to a double murder. Guevara, who has been accused of railroading numerous suspects, mostly Latino men, declined to testify or repeatedly said, “I don’t recall.”

Guevara took the Fifth even though the judge had ordered him to testify. And even though he had been offered immunity.

In the second case, Patrick Kelly, a police officer with a long record of complaints, took the Fifth 31 times on Tuesday in a federal civil suit involving a friend who was shot in the head in Kelly’s home with a bullet that came from Kelly’s service revolver.

If Tuesday were just one strange day in Chicago — if our local police almost never felt it necessary to take the Fifth — nobody would see cause for alarm. In recent years, however, Chicago has watched a shameful parade of some 30 police officers take the Fifth in cases involving allegations of police torture.

The Fifth Amendment, which gives all of us the right to refuse to incriminate ourselves, protects innocent people from being coerced into acting as witnesses against themselves. When a defendant takes the Fifth in a criminal case, the judge or jury by law is not supposed to hold that against the defendant.

In a civil case or in post-conviction proceeding, however — such as the two cases that were in court on Tuesday — the rules are different. If a police officer takes the Fifth in those circumstances, the courts have held it is permissible for a jury or judge to draw negative inferences about the officer.

And that’s the sad heart of the matter. Chicagoans have had too many opportunities to draw negative inferences about their police department over the years. As former DuPage County Sheriff Richard Doria once said about a different trial, the public expects police officers always to testify forthrightly, never to take the Fifth.

From a defense lawyer’s perspective, it makes sense for police officers to invoke the Fifth Amendment when there are allegations of wrongdoing by the officers, even if the officers are not defendants in a criminal case. Defense lawyers point to the example of former Chicago Police Cmdr. Jon Burge, who was sent to prison not for the underlying charges of police torture — for which the statute of limitations had expired — but for lying about it under oath years later.

But a good legal strategy is one thing. Chicago’s reputation is quite another. When so many cops are taking the Fifth, the stain on Chicago’s honor is deep and wide. And what the public suspects is at work is the old “code of silence,” in which officers undermining the law by clamming up about wrongdoing.

Over the years, the Chicago Police Department has never done an adequate job of policing itself. Guevara, for example, was largely allowed to run free during much of his career as a detective, even as allegations piled up of dubious evidence he obtained that sent people to prison. In recent years, several defendants who were convicted based on Guevara’s work have been free amid allegations of misconduct on his part.

It’s important to stress, as we always do, that most police officers are honest and solid. They do a hard job every day, work by the rules, and never remotely find themselves in a spot where they must even consider taking the Fifth.

But then we have days like Tuesday. When two officers take the Fifth within hours of each other.

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