A drama is
unfolding in Illinois courts that has profound implications for police
accountability and governmental transparency. At the center of this drama is Kilroy Watkins, a prisoner serving a 55-year sentence for
first-degree murder and armed robbery. A skilled jailhouse lawyer, Watkins has
presented the state appellate court with a case that tests not only the meaning
of the Freedom of Information Act but also the integrity of the judicial
process.
Chicago police
officers arrested Watkins in 1992 in connection with an armed robbery. The next
day he confessed to committing a murder in a separate incident. He has
consistently claimed his confession was coerced by Detectives Kenneth Boudreau
and John Halloran, associates of disgraced Commander Jon Burge. Under Illinois
FOIA, he sought access to the police misconduct complaints against Boudreau and
Halloran. Known as "complaint register" files or CR's, these
documents contain the complaints filed against an officer and the substance of
the City's investigation of those allegations.
Watkins' aim was
to demonstrate a pattern of coerced confessions by the two detectives, in
support of a post-conviction petition (since denied). In light of what we now
know about police torture and coercion by officers under Burge's command, this
is a plausible argument. A Tribune investigation
in 2001 reported that Boudreau had, as of that time, helped secure confessions
from more than a dozen defendants in murder cases in which the charges were
later dropped or the defendant was acquitted.
Watkins
represented himself in his FOIA suit until last year when the law firm of Loevy
& Loevy took him on as a client. (I too am represented by the Loevy firm in
a FOIA case against the Chicago Police Department.) When the circuit court
ruled against him, Watkins appealed to the Illinois Court of Appeals for the
First District.
A central issue in
this case -- and in the long history of litigation over CR files -- is whether
such documents are public information or private personnel matters. In recent
years, a number of judges in both state and federal courts have ruled that
records related to police misconduct are quintessential public information.
In the leading
Illinois case, Gekas v. Williamson, decided in 2009, the Court of
Appeals for the Fourth District ruled that police misconduct files are not personal information,
the disclosure of which would violate the officer's privacy:
What [the
defendant] does in his capacity as deputy sheriff is not his private business.
Whether he used excessive force or otherwise committed misconduct during an
investigation or arrest is not his private business.
Against this
background, the First District ruled in Watkins' favor in a decision issued on
December 27 of last year. Writing for the three-judge panel, Judge Mary K.
Rochford (the daughter of former Chicago police superintendent James Rochford)
relied squarely on Gekas and reaffirmed the principle that
"a complaint against a [police officer] in the performance of his public
duties 'shall not be considered an invasion of personal privacy,' even if
contained within otherwise exempt personnel files."
A week later, the
same First District panel, with Judge Rochford again writing the opinion,
withdrew its earlier order and denied Watkins's motion on the ground that the
court did not have jurisdiction because he had filed his appeal too early.
It would be
generous to describe this decision as hyper-technical. It turns, in effect, on
Watkins' inability to provide from behind the thick walls of his incarceration,
despite his best efforts, written documentation of the trial court's oral
announcement of its decision to dismiss his case several months before it
issued a written opinion.
There is nothing
on the face of the First District's December 27 opinion that would have
prompted second thoughts about jurisdiction. Moreover, the jurisdictional issue
was never raised by the city. In fact, the city acknowledged throughout the
appellate court proceedings that there was jurisdiction because the trial court
did, in fact, announce a decision before Watkins filed his notice of appeal.
Did the First
District yield to political pressure? The question must be asked, though it
cannot be definitively answered, for the city has consistently sought in every
possible way to resist the emerging judicial consensus that CR's are public
information.
In the legal
equivalent of a Hail Mary pass, Watkins' lawyers petitioned the Illinois
Supreme Court for leave to appeal. Happily, on May 30th the Supreme Court
acted. While it did not grant the request to appeal, it exercised its
supervisory authority to send the case back to the Court of Appeals for a
decision on the merits.
The logical
outcome now is for the First District to reinstate its fine December 27
decision. In so doing, it will both strengthen Illinois FOIA and restore
confidence in its judicial independence.