A travesty of justice that Kim Foxx can and should fix

He’s 47 and he’s suffered for 23 years under the yoke of a Kafkaesque injustice.

I won’t mention his name here to avoid embarrassing him with friends, neighbors, and co-workers, who know not of his plight.

I’ll just call him K. But I am sending details of his case to Cook County State’s Attorney Kimberly Foxx’s Conviction Integrity Unit, in the hope that the tragedy that befell him, as described below, will be mitigated.

In April 1996, an 8-year-old girl accused K, then 24, of sexually molesting her a year or two earlier while she and her older sister were in the foster care of K’s mother in suburban Tinley Park.

K initially denied the allegation—but after an all-night interrogation signed a statement confessing to the crime.

Why, if innocent, would he confess?

K suffers from acute learning disabilities, making him especially vulnerable to high-pressure police interrogation techniques. It’s doubtful that he understood the Miranda warning he was given or, for that matter, the ramifications of signing the confession—which he says he did in a state of fear and exhaustion.

False confessions are a familiar phenomenon—they occurred in nearly a third of 236 Cook County cases in which convicted defendants have been exonerated in the last three decades.

So that K’s confession was false is understandable, and it’s easier yet to understand why he would plead guilty in 1997 to a single count of criminal sexual assault ⎯ a crime that 13 years later the purported victim would testify hadn’t happened.

Had K exercised his right to a trial, his conviction and a prison sentence were virtually inevitable—but under his plea agreement he received just four years’ probation.

The plea rendered him a convicted sex offender—which was greatly preferable to prison.

The purported victim’s motive for falsely accusing K is less intuitive, but nonetheless clear.

K’s mother and step-father separated in 1995, whereupon K and his mother moved into a small apartment where there was no room for foster children.

The Department of Children and Family Services moved the sisters into another home—where, according to affidavits they provided in 2010, they were beaten, verbally abused, and punished by, among other things, being denied food.

The younger girl described the K’s parents’ home as “the best” of 15 foster homes in which she had lived during her years as a ward of the state and the new home as “the worst.” Her sister echoed those sentiments, describing the former as “a nice atmosphere,” in contrast to the latter, where their foster mother frequently beat them, forced them to “kneel on dried rice for hours at a time,” and once “locked me standing up in a pantry overnight.”

In 1996, according to the younger girl’s affidavit, her foster mother falsely accused her of “inappropriately” touching the foster mother’s natural daughter. The foster mother “became angry and started screaming at me,” the affidavit said. “She said that [K] had done this to me, that I had learned the behavior from him. I denied this, but [she] pressed the issue. [She] hit me. I remember how terrified I was. I finally gave in, even though I was 100 percent certain that [K] never touched me inappropriately.”

Thus began K’s Kafkaesque nightmare, followed by his confession and guilty plea.

In 2010, K’s accuser, by then 22, recanted in a telephone call her sister arranged with K’s mother and soon thereafter provided the affidavit quoted above and corroborated by her sister’s affidavit.

Because K’s case was procedurally defaulted and because he was not in custody, he had no remedy in the courts—his only hope for justice is a gubernatorial pardon based on innocence.

The Northwestern Law School Center on Wrongful Convictions petitioned for such a pardon, but the prosecution—under State’s Attorney Anita Alvarez—opposed it, in keeping with the office’s longstanding, albeit wrongheaded, policy of rejecting relief predicated on recantations.

Kim Foxx defeated Alvarez in 2016, thanks to voters who came to realize that the incumbent had failed miserably in her primary responsibility to fairly prosecute criminals and move with dispatch to exonerate the wrongly convicted.

Foxx promised a new deal.

K’s case is an opportunity for her to show she meant what she said.

Rob Warden is co-director of Injustice Watch and executive director emeritus of the Center on Wrongful Convictions at Northwestern University Pritzker School of Law.