A Cook County judge on Wednesday said he will reconsider whether a special prosecutor is still needed to handle cases tainted by allegations of abuse by the late former Chicago Police Cmdr. Jon Burge.
Chief Criminal Courts Judge LeRoy K. Martin’s decision to reassess whether the state’s attorney’s office can resume handling the various post-trial motions and possible new trials of defendants in decades-old Burge cases, came at the end of a two-hour hearing on a request from lawyers of four men who claim they were tortured by detectives and forced to give false confessions under Burge’s command.
The attorneys asked Martin to have Robert Milan, a former top deputy to ex-State’s Attorney Richard Devine, replaced by prosecutors from State’s Attorney Kim Foxx’s office. But Martin’s ruling could impact dozens of Burge-related proceedings still in the pipeline, most involving defendants who were convicted in cases tied to Burge and detectives under his command in Area 2 and Area 3.
“I think we’re two state’s attorneys removed from Devine. We’re almost two decades removed from (the first) order” appointing a special prosecutor in the Burge cases, Martin said. “I don’t think the current state’s attorney has a conflict.”
Martin ruled that Milan’s 20 years as a prosecutor, including time as Devine’s top assistant, did not create a conflict of interest. Milan is one in a succession of private attorneys to handle Burge cases since Judge Paul Biebel in 2003 appointed a special prosecutor, because Devine had represented Burge when Devine was in private practice.
Martin asked Milan to prepare a list of all pending Burge cases, and an update on their status. The judge said that in a few weeks he will rule on whether to keep the case involving the four men under Milan’s authority or turn them over to Foxx’s office, and would decide on a case-by-case basis whether other Burge cases can be turned over to the state’s attorney.
A statement from the Cook County state’s attorney’s office Wednesday said, “We are waiting for the court to determine the scope and number of cases that may be affected by today’s ruling. While that is under review, the State’s Attorney’s Office remains focused on addressing violent crime, righting the wrongs of the past, and pursuing justice for all victims.”
Milan two years ago stepped aside from a handful of Burge cases without conceding he had a conflict of interest, though lawyers for a group of defendants asked to have him removed because of his long career with the state’s attorney’s office. As a special prosecutor, Milan had moved to dismiss charges against both Anthony Jakes and Arnold Day after a judge threw out a confession Day made after being tortured by detectives who worked under Burge
Citing his desire to keep the decades-old cases moving through the courts, Martin ruled that Milan would remain on the case of Gerald Reed, who has a hearing Friday on a motion to dismiss charges against him in a 1990 murder.
The judge did not rule Wednesday on whether Milan would continue to handle cases involving Ivan Smith and Javan Deloney, who were convicted in a separate, gang-related shooting investigated by Burge era detectives, or on whether Milan could continue to fight a petition to grant a certificate of innocence clearing James Gibson of wrongdoing in a 1989 double-murder. Milan dismissed charges against Gibson, but has said that while there is not enough evidence to convict him at a second trial, he still believes Gibson is guilty.
Burge was fired by CPD in 1993, and later served time in federal prison for perjury related to the torture accusations against him. Burge was sentenced to 4 1/2 years in 2011 for lying under oath about police torture, but he got time off for good behavior and was released to a halfway house in 2015. He died last year at age 70.