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Judge: Former Mayor Daley can be sued as defendant in Burge case


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Updated: September 11, 2011 12:50AM

For the first time, a federal judge has ruled former Mayor Richard M. Daley can be sued as a defendant for his alleged role in what plaintiffs claim is a citywide conspiracy to cover up police torture.

And Daley could be deposed by lawyers representing alleged victims, all African American, who charge their abuse came at the hands of a small band of predominantly white police officers under the command of former Chicago Police Cmdr. Jon Burge.

The Burge case has already cost Chicago taxpayers more than $43 million in settlements and outside legal fees. Burge is in federal prison.

Though Daley was questioned under oath by a court-appointed special prosecutor in 2006, it was widely criticized as an overly solicitous interview. This would likely be a more adversarial exchange.

A July ruling by U.S. District Court Judge Rebecca Pallmeyer is paving the way for civil rights attorney Flint Taylor to depose Daley.

“He’s never been deposed in any of these cases,” said Taylor, who has represented many of those who say they were routinely and savagely abused. “He’s never been sat down and questioned for seven hours about his involvement. He’s always managed to avoid that.”

Daley and his city-hired attorneys have received notice to appear for a deposition on Sept. 8.

Burge was convicted last summer of perjury and obstruction of justice for lying in a civil court case when asked if he knew of the torture. He is serving a four-and-a-half year sentence in federal prison.

The alleged cover-up dates back to the mid 1970s.

Judge Pallmeyer allowed Daley’s name to be added to the list of defendants in a suit filed by Michael Tillman.

“The court concludes Plaintiff [Tillman] has presented more than ‘naked assertions,’ and his conspiracy claim survives,” Pallmeyer wrote in her July 20 opinion.

Attorneys for Daley are asking the judge to reconsider.

Michael Tillman spent 23 years in prison for murder. He confessed, said Taylor, because he was suffocated and beaten by Chicago Police officers. “They used a form of waterboarding, pouring 7-Up up his nose,” Taylor said. “That’s the kind of torture they used over a four-day period with Michael Tillman.”

When he was released in 2010, Cook County special prosecutors concluded there was no reliable evidence against him. Tillman received a certificate of innocence from the chief judge of the Criminal Courts of Cook County.

In his civil lawsuit, Tillman alleges the city conspired to cover up torture cases.

Burge, 63, already has been deposed by Taylor at the federal prison in North Carolina, where he is serving his sentence. During the deposition, Burge, seen for the first time wearing a khaki prison uniform, repeatedly took the Fifth Amendment.

Also deposed were former Chicago Police officers Jack Byrne and Peter Dignan, who served under Burge. Federal prosecutors continue a grand jury investigation of what has been called Burge’s “Midnight Crew,” but neither Byrne nor Dignan has been charged. Neither has offered comment.

In his role as Cook County state’s attorney, Daley has prosecutorial immunity from lawsuits. It is under the scope of his tenure as mayor that, according to Pallmeyer’s ruling, he is now listed as a defendant.

There are six civil lawsuits pending against Burge and the city, with the city continuing to pay mounting legal fees for outside counsel.

“The only response we get is to see five and six lawyers in court financed by the city of Chicago defending Burge,” Taylor said. “And to that extent the outward signs are that the city is still on the wrong side of these cases.”

Another federal judge, Elaine Bucklo, made a similar observation in March in a lawsuit brought by former inmate Ronald Kitchen, who was released after 21 years in prison. Like Tillman, Kitchen was exonerated.

Faced with an array of lawyers, many of them outside counsel hired by the city, Bucklo observed, “There’s an awful lot of you . . . Does this make sense? . . . I don’t understand why this case, why you don’t settle. [Kitchen] was declared innocent. Burge is in jail. Have you tried to settle this?”

Richard Bueke, one of Burge’s city-paid attorneys, said when it comes to settlements, “I don’t see it in a near future,” arguing, “Plaintiffs’ bar sees this as a cash cow.”

Although some aldermen maintain the city should no longer pay to defend Burge and his officers, a spokeswoman for the city’s Law Department argues it must because it has a “legal obligation not only to indemnify him against any judgments in these cases, but to provide him with legal representation.”

But, said the spokeswoman, a serious effort is being made to contain costs.

Meanwhile, Attorney General Lisa Madigan is contesting the police pension board’s decision to continue to pay Burge’s police pension, but the payments are still being made.

Neither Daley, now in private practice at the law firm of Katten Muchin Rosenman, nor his attorney returned calls for comment.

The Burge scandal remains a financial drain on a cash-strapped city. And an open wound in the African-American community.

Whether Rahm Emanuel, the new mayor, will move to settle the current cases and attempt to close this chapter in the city’s history is not yet clear.

Contributing: Don Moseley

This article contains corrected information about which agency decided to continue Jon Burge’s pension.

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