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Excerpts from the Koschman judge’s comments

Cook County Circuit Judge Michael P. Toomin

Cook County Circuit Judge Michael P. Toomin

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Updated: May 9, 2012 9:50AM

These are excerpts of the comments made in court Friday by Cook County Circuit Judge Michael P. Toomin in announcing his ruling that a special prosecutor will re-examine the 2004 death of David Koschman after being punched by Richard J. “R.J.” Vanecko, a nephew of then-Mayor Richard M. Daley:

“As you know, the matter is here today for a ruling on the petition initially filed by the Koschman family.

“I want to take the the opportunity to thank counsel for their input here. The case has been thoroughly and adequately — more than adequately briefed and argued, and I think you did a fine job. The court has prepared an opinion.

“It’s not going to be read; it’s 33 pages long. I will highlight some significant aspects of the case, however.

“Some of you may have been having concerns as to why it was me who was selected for this privilege, for this honor. All I can tell you is that there’s nothing sinister about it. [Chief Cook County Criminal Courts] Judge [Paul] Biebel was awaiting some medical procedures and asked if I would come over, [Chief Cook County Circuit] Judge [Timothy] Evans concurred — perhaps because I’m the senior presiding judge with criminal experience and perhaps because I handled a number of the requests for special prosecutor in the years that I spent here at 26th and California.

“In reaching the proper decision here, the court has been tasked with what might be called reconciling perceptions of core concerns.

“Actually, they are complementary rather than diverging — the citizen’s right to a criminal justice system that draws its legitimacy from the confidence of its constituents and dispenses justice fairly and impartially.

“Also implicated are government powers exercised through the executive branch, separation of power concerns, concerns of broad prosecutorial discretion afforded the state’s attorney in determining what charges should be brought or rejected. That discretion, that power, however, is not absolute, as counsel recognized. It is limited by Section 3-9008 of the county’s code, which authorizes removal of a state’s attorney where interest is shown; conflict of interest, personal interest, political interest and, more recently, appearances of impropriety. I will address those principles as they relate to the facts.

“The institutional conflict, as I understand it, stems from allegations of police misconduct in the inception; ignoring or giving scant credence to the statements of occurrence witnesses, instead falsely recording what was told to police, labeling David Koschman as the aggressor, leading to participation and concurrence by the state’s attorney through Assistant State’s Attorney Darren O’Brien. Those are the allegations in the main.

“The proofs that have come in by way of the filings here, particularly the reply of the petitioner, sustain those allegations of false recording, distortion. We have sworn testimony that is unrebutted undermining the veracity of police reports, contradicting reports that Koschman was physically aggressive, statements of witnesses incorrectly, inaccurately memorialized. And so we have specific and detailed allegations supported by unrebutted proofs that, in this court’s opinion, do sustain the allegation of an institutional conflict.

“Moving now to allegations involving the interests of Anita Alvarez, the state’s attorney, allegations of a personal political interest stemming, as we know, from statements allegedly defending the work of the police department, State’s Attorney’s Office, her concurrence in the appraisal of the case by those entities and her alleged commitment to exoneration of the police and prosecutors, particularly in Felony Review. The authority relied upon by petitioners —

Baxter v. Peterlin — of course requires specific facts to be pled and proved.

“The facts in Baxter were rather simple, not complex. A police officer in the town of Ottawa, Illinois, sought to bring charges against the mayor. He beseeched the state’s attorney over a few years, to no avail, and finally brought the action contending that there was a political interest, both of them being state’s attorney and the mayor being prominent members of the Republican Party. The appellate court in the Third District spoke to the nature of political alliances; and while they agreed that it could be a basis for disqualification, noted that it was an amorphous term, could mean many things, simply being a member of the same political party or perhaps being beholden to someone who might be the subject of a prosecution. They also spoke of the requirement that the petitioner must show that the alliance precluded the state’s attorney from zealously representing the people. The court denied the petition.

“Applying that case to the situation at bar, it is this court’s opinion that the pleadings here fail to satisfy either requirement. The allegations are conclusory, essentially, the proofs are speculative. Political alliances in this court’s opinion are made of sterner stuff. Here, we have photographs that the petitioner attached to the reply in support of this claim showing, purportedly, a political alliance through photo opportunities of the mayor, Mayor Daley, former Mayor Daley and Ms. Alvarez. In this court’s opinion, they no more show a political alliance than photos of John Wayne Gacy appearing with numerous political figures, including First Lady Rosalind Carter. And, as against that allegation and those proofs we do have numerous public declarations by the state’s attorney seeking independent investigators, which contradict the allegations of a political interest. That claim must fail.

“Moving to the third and perhaps the most important claim here — the appearance of impropriety stemming from the state’s attorney’s continued participation in this case: Guideposts used to determine appearances of impropriety are found in several cases. In the

Lang case which followed Courtney — and I’m not going to cite any cases, give any citations today, maybe one or two, they clutter up the comments — but Lang and Courtney speak to the importance of maintaining public esteem and integrity of the criminal justice system.“We also recognize the admonition of [U.S. Supreme Court] Justice [Antonin] Scalia in

J.E.B. v. Alabama: ‘Wise observers have long understood that the appearance of justice is as important as its reality.’

“The petitioners’ allegations have been set forth in the initial filing. Based upon procedural irregularities, the absence of recorded police activity in the inception of the case, lapses, delays, failure of the identification process, false reports and what I might term the ‘missing files syndrome,’ an affliction common to both the police department as well as the State’s Attorney’s Office.

“More troubling to the court, however, is a series of factors, the evolution of this investigation from inception down to the present time, troubling questions that have yet to be answered.

“2004: Charges were declined, Vanecko was not identified, Mr. Koschman was deemed the aggressor.

“2011: Vanecko is now identified. What is he identified as? He’s identified as the killer.

“Make no mistake about it. Koschman, well, he’s still the aggressor.

“State’s attorney makes several clarion calls for independent investigations. One declaration, it would be a much cleaner investigation if somebody else was involved in the investigation, somebody who was not involved. Yet the State’s Attorney’s Office remains in the investigation. The tempest has not been calmed by the actions of the State’s Attorney’s Office, as brought forth in the pleadings and the argument.

“Quite simply, we have a dead body. This is not a whodunnit. We know who done it. There’s a known offender and yet no charges.

“The take in this building since I’ve been coming around since 1967: When you have a dead body, someone’s going to jail. Not in this case.

“A decided interest in preventing or impeding the prosecution, a denigration of the existing exculpatory evidence and, probably the most prominent impropriety, the fiction of self-defense, supported only by oft-repeated conclusions that David Koschman was the aggressor, a host of statements in the exhibits, detectives, particularly Detective [James] Gilger, the last to be quoted, Superintendent Phil Cline, Mr. O’Brien and the state’s attorney herself.

“But when we look to the requirements of the law, we see a lot more is required. Even assuming, even assuming that David Koschman possibly was the aggressor — and I don’t make that assumption — we look to 7-1 of the Illinois Criminal Code. What does it say? ‘A person is justified in the use of force against another, when, and to the extent that, he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent immindent death or great bodily harm to himself or another or the commission of a forcible felony.’

“Case law interpreting statute sets forth the elements of self-defense. That is what experienced practitioners look to. That is what I myself, in a number of the 641 murder cases that I presided over in my years here. I will cite to one case which I think is significant. It’s

People v. Jeffries at 164 Ill. 2d Page 104. It’s a 1995 case, and it sets forth the elements that I’m going to refer to and requires some evidence to support all six of them.

“Those factors are: Force was threatened against the person; the person threatened was not the aggressor; the danger of harm was imminent; the threatened force was unlawful; the person actually and subjectively believed a danger existed that required the use of force applied, and the person’s beliefs were objectively reasonable.

“In a more recent case,

People v. Malvin Washington , it came down in January of this year, what the court said was it is the existence of a person’s subjective belief that the evidence must show.

“When we apply those principles to the case at bar, there is some interesting conclusions because the uncontroverted aspect of the police investigation here is that no detective or prosecutor ever interviewed or spoke to Mr. Vanecko. And yet police and prosecutors, from the inception of this case, somehow were able to divine Mr. Vanecko’s subjective feeling.

“And I say this despite recent allegations of a confession attributed to Mr. Vanecko. We heard last week, on a motion to intervene from [Vanecko attorneys] Mr. [Terence] Gillespie, Mr. [Marc] Martin, an affidavit was filed similar to what appears in news accounts of Mr. Vanecko’s appearance at Area 3 [detective headquarters], totally contradicting what was told to some of the Koschman witnesses. And I’m not doubting that it was told to them, that’s unrebutted. Why it was told to them, something else. Knowing an attorney of Mr. Gillespie’s stature and standing, knowing how attorneys operate, it is inconceivable that, after taking Mr. Vanecko to Area 3 for an identification confrontation, that he would allow his client to be separated from himself and to be interviewed by detectives. No lawyer worth his salt would do that. Mr. Gillespie didn’t do it.

“Why those boys were told that by the detectives, I can only speculate to.

“Articulations of self-defense are something that experienced practitioners are familiar with. Fear, declarations by defendants by defendants it was him or me, desperation, I had no choice, things of that nature. None of that here because nobody spoke to Mr. Vanecko.

“So the conclusions that must be drawn: This was a defense conjured up by police and prosecutors, made of whole cloth, ipsy-dipsy — a fancy term that smart lawyers use: Iit’s so because I say it’s so — in this court’s opinion, a gross fiction.

“In concluding my comments today, I want to speak to some core values. [Koschman family attorney] Mr. [Locke] Bowman expressed these, they’re in both the petition and the reply, that the criminal law is to be enforced evenhandedly, without favor to the powerful, to the wealthy, the well-connected, that Robert Vanecko and David Koschman stand equal before the law, and, in this building, we seek to uphold those values.

“That’s what we’re about. Sometimes we meet success, sometimes not.

“This calls to mind in my career a matter that I was involved in many years ago, the case of Delizon Bush. I’m sure you never heard of him.

August of 1969, 63-year-old man, 145 pounds en route home from his work, stopped in Lincoln Park and entered a mens’ washroom. A younger man, casually dressed, came in, walked up and down behind him. He was a police officer. He claimed that Bush was committing an act of public indecency, though not articulated. He arrested Mr. Bush forcibly. A single punch, a nose bleed.

“Mr. Bush was taken to Henrotin Hospital — it doesn’t exist anymore — on the North Side, the Near North Side of Chicago. He had a nose bleed, according to the police officer. The doctor who examined him found multiple fractures of his chest wall, four broken ribs, two black eyes and fracture of his nose. Those were the facts in Delizon Bush. He was charged with public indecency and resisting arrest.

“The case went from the East Chicago District to Branch 46 and ultimately to trial. My opponent was a young state’s attorney who recently retired as chief judge of the Illinois Supreme Court. The case is reported at 4 Ill. App. 3d 669, 1972. There was an appeal. Mr. Bush was, fortunately enough, in the panel that he appeared before, consisting of former State’s Attorney John Stamos, an older jurist, Ulysses Schwartz and Justice George Leighton. “The Appellate Court was not happy with the officer. It’s not a long opinion. They took him to task, particularly injuries visited upon Delizon Bush.

“I’ll share with you Justice Leighton’s concluding remarks: ‘Therefore, on evidence which also discloses that the defendant was arrested and charged with a crime the jury found he did not commit, that he was beaten to a point that required two days of hospitalization, affirmance of this conviction would cap indignity with injustice. Judgment is reversed.’

“And what is the application of Delizon Bush to the instant case? Neither Delazon or David Koschman are powerful, wealthy, well-connected — rather, both occupied modest stations in life.

“Delizon Bush, at 63 years of age, was a messenger boy. He delivered small packages and legal pleadings in the Loop and elsewhere by bicycle and by foot. And David Koschman, well, the sun was just rising over him. “Both suffered indignities and injustices: Mr. Bush, his corrected by the due processes of the law, David Koschman, who the system has failed up to this point.

“The conclusion the court draws from the materials presented — the showing of an institutional conflict, appearance of impropriety, the respondent’s efforts to denigrate the evidence against Mr. Vanecko, coupled with the state’s attorney’s recurring calls for an independent investigation — evokes a decided interest in this matter sufficient to warrant appointment of a special prosecutor.

“To deny that request would be — to paraphrase Justice Leighton — to cap indignity with injustice.

“Petition is granted.

“The court will not be setting another date. The matter will be taken off-call. I will be conferring with Judge Biebel and, in all likelihood, Chief Judge Evans as to the procedure now to be followed in selecting and naming a special prosecutor, perhaps a staff. The parties will be informed when that decision has been reached.

“And the court will stand in recess.”

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