Police blasted on witness rights; Chicago cops, county prosecutors handle them like suspects, court says

Police blasted on witness rights; Chicago cops, county prosecutors handle them like suspects, court says
Steve Mills
Chicago Tribune
September 10, 2002

A federal judge on Monday ruled that Chicago police and Cook County prosecutors have routinely violated the rights of witnesses by denying them access to lawyers while holding them for long hours in small, locked interrogation rooms.

In a sharply worded opinion, Judge Milton Shadur of U.S. District Court in Chicago issued a wide-ranging injunction ordering Chicago police to begin allowing lawyers to see the witnesses immediately. To verify police compliance, the attorneys must be present when police tell the witnesses they have arrived, Shadur ordered.

Shadur, who in the past has issued rulings critical of Chicago police, wrote Monday that while in theory police treat witnesses and suspects differently--saying witnesses are free to leave the police station while suspects are not--"that pristine theory is totally at odds with actual practice."

"No reasonable person," the judge wrote in a 41-page opinion, "would knowingly volunteer to remain in a small, windowless, locked interrogation room for such extended periods of time."

Shadur said holding witnesses--particularly those who are poor and ignorant of their rights--is often a pretext to questioning them as suspects and sometimes leads to violations of their constitutional rights.

City officials and prosecutors strongly disagreed with Shadur's order, and late Monday afternoon city lawyers went to court asking for a hearing on their request to stay the injunction while they appeal the ruling, said Jennifer Hoyle, a city Law Department spokeswoman.

Shadur's ruling comes in a lawsuit filed by First Defense Legal Aid, a not-for-profit group that provides free legal advice to the poor while they are at police stations. First Defense filed the lawsuit late last year, alleging that police barred attorneys from seeing some 40 indigent clients being held as witnesses.

In its lawsuit, First Defense contended that its lawyers were denied access in cases where witnesses were held for periods ranging from 5 to 24 or more hours. First Defense alleged it was prevented from seeing several clients who were being questioned in the fatal shooting of Officer Brian Strouse in June 2001.

First Defense lawyers said that they tried to see one witness for 14 hours but were denied access, and at one point saw him handcuffed to a chair.

Those actions, First Defense alleged, violated 1st Amendment rights, rather than 5th Amendment rights that come into play under the Miranda ruling. Under the 1st Amendment, argued the group's lawyers, both the witnesses and the attorneys had a right of association.

"They keep individuals as witnesses until they get someone to confess. Then they're a suspect," said the executive director at First Defense, Darron Bowden. "But when you keep someone locked up in a room with no facilities and they're not free to leave, they're more than a witness. They're a suspect."

Chicago police and prosecutors argued that they did not violate the Constitution. But they admitted, according to Shadur's ruling, that police detectives routinely discourage witnesses from seeing attorneys. Witnesses are held in interrogation rooms and isolated because the police want to "overcome (their) reluctance" to cooperate. They are not told when attorneys arrive.

Law enforcement officials contend, however, that those witnesses voluntarily remain in custody and insist that, at that point, they are not suspects.

Shadur wrote that "such conditions are intended to and must in fact induce fear and desperation in a witness, thereby increasing the likelihood that a witness will give a statement even if to do so is contrary to his own best interests."

Police, according to Shadur's ruling, said that the rate at which they solve crimes--which, in the case of murder, has fallen over the past several years--would fall further if witnesses are allowed to see lawyers.

Shadur ridiculed that claim, saying the police have no "claim of entitlement to violate the Constitution simply to increase their clearance rate."

Hoyle, the Law Department spokeswoman, and John Gorman, a spokesman for Cook County State's Atty. Dick Devine, said the ruling would be appealed. Hoyle said that Shadur's ruling was "contrary to established case law" and that the judge "has taken all the facts put forth by the plaintiff as the truth of what always happens."

Gorman said that prosecutors believe that the "legal conclusions as related to the state's attorney's office are not supported by the law."

Devine, according to Shadur's ruling, must immediately begin training sessions to teach prosecutors how to handle the issue.

Shadur's ruling follows at least two opinions from the Illinois Appellate Court in which Chicago police were sharply criticized for holding witnesses for long periods and claiming they stayed inside stations voluntarily.

The issue also has caused controversy elsewhere. In Detroit, top police officials acknowledged last year that detectives routinely treated witnesses as suspects and held them against their will for lengthy periods, a practice that civil liberties experts criticized as unconstitutional.

Timothy O'Neill, a professor at John Marshall Law School and a former Cook County assistant public defender, said that in his mind the issue was clear, whether a person is viewed as a witness or a suspect.

"If you're being held and you can't leave, at that point you have a right to counsel," said O'Neill. "These witnesses were held in custody."

Harvey Grossman, legal director of American Civil Liberties Union of Illinois, said holding witnesses incommunicado was unfair to witnesses and that it had a long history in Chicago law enforcement.

"This has kind of been the modus operandi here in Chicago for decades now," said Grossman. "Once counsel is present and seeking access to a client, I don't think that there's any legitimate law enforcement interest that outweighs the right to counsel."

Locke Bowman of the University of Chicago's MacArthur Justice Center, which represented First Defense in the lawsuit, said the judge's ruling cuts through a key "fiction" that long has been in operation in Chicago.

"The police basically take the position that it's acceptable to take people off the street, place them in locked interrogation rooms for extended periods of time and sweat them in there--so long as they throw up the fiction that the person is free to leave," he said.

"And these are people who are witnesses--theoretically not even suspected of criminal wrongdoing."

Copyright 2002 by the Chicago Tribune