Merits of the case aside, the acquittal of former Chicago Police Commander Glenn Evans on charges that he rammed his semi-automatic Smith & Wesson down a criminal suspect’s throat underscores a problem that coexists with and complements police brutality — the problem being the abject failure of the Criminal Division of the Cook County Circuit Court to inspire confidence in its objectivity and competence.
The fault lies only minimally with Judge Diane Gordon Cannon, who found Evans not guilty of two counts of aggravated battery and seven counts of official misconduct even though the suspect’s DNA was found on the barrel of Evans’s service weapon. Rather the mistrust of the Criminal Division stems from a dysfunctional judicial-selection system under which Cook County voters put judges on the bench with virtually no information predictive of their ability or inclination to exercise judicial power responsibly.
The result is judges like Cannon, whose performance has been less than salutatory, to say the least. In 2005, she was reversed for neglecting to advise jurors in the case of a man convicted of aggravated unlawful use of a weapon that he was entitled to the presumption of innocence and that had no obligation to testify on his own behalf. The question on appeal, as framed by Justice Warren D. Wolfson, was: “Did [Cannon’s] failure to address these basic principles threaten the integrity of the judicial process?” The appellate court held that it did. Nonetheless, five years later, Cannon again was reversed for what another appellate panel deemed her “egregious failure” to advise individual jurors in a first-degree murder case of the same fundamental principles of justice that she had ignored in the earlier case.
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Perhaps Cannon simply is not educable, but more likely her biases are such that she simply is incapable of being fair. She was reversed in 2010 for refusing to give a jury a second-degree-murder instruction in the case of a man convicted of first-degree murder and, more recently, has been reversed approximately a dozen times for summarily denying, without hearings, petitions for post-conviction relief.
Thus, even assuming that the acquittal of Glenn Evans was colorable and rational — a dubious proposition, given the absence of a plausible explanation consistent with innocence for the DNA on his service pistol — Cannon is anything but a credit to the criminal justice system. Her decision in the Evans case exemplifies a double-standard: If acquittals generally were warranted by evidentiary inconsistencies as inconsequential as those that Cannon claimed left her with reasonable doubt about Evans’s guilt — the complaining witness was inconsistent in his description of the weapon involved and told investigators at one point that the officer who assaulted him used his left hand although Evans is right-handed — there would be far, far fewer convictions.
Cannon — whom the aforementioned dysfunctional electoral system elevated from assistant state’s attorney to the Circuit Court in 1996 and retained in 2002, 2008, and 2014 — is anything but alone among Criminal Division judges whose actions have given rise to public concern about the integrity of the justice process:
— Judge Nicholas R. Ford denied a motion to recuse himself from reviewing the case of alleged Burge-era police-torture victim Jackie Wilson, even though Ford is a potential witness in the case — owing to the fact that years ago, as an assistant state’s attorney, he took a statement from another alleged torture victim.
— Judge Dennis J. Porter acquitted Chicago Police Officer Dante Servin of involuntary manslaughter in connection with the fatal shooting of an unarmed woman, holding that Servin had not acted recklessly, a necessary element of involuntary manslaughter, but rather had acted intentionally and, therefore, ought to have been charged with first-degree murder. Double jeopardy prevented prosecuting Servin again.
— Judge Kenneth J. Wadas barred defense lawyers in the case of a man accused of slashing a nurse with a box cutter from presenting compelling evidence that the crime had been committed by a mentally ill man who had committed similar attacks in the same area around the same time. As a result of Wadas’s stunningly improper evidentiary ruling, Robert Wilson, an innocent man, went to prison for 17 years.
— Judge Thomas V. Gainer Jr. held that Chicago police lacked probable cause to arrest one of their own — off-duty Chicago Police Officer John Ardelean —after his Dodge Durango swerved into an oncoming car near Damen and Oakdale avenues, killing two young men. A video-tape showed Ardelean downing four shots and three beers in a River North tavern preceding the 3 a.m. crash, but Gainer evidently credited a bartender’s testimony that the shots were — ahem — water. Charges of reckless homicide and aggravated drunken-driving against Ardelean then were dropped.
— Judge James B. Linn failed to hold Assistant State’s Attorney Kathleen Van Kampen to account for telling him that her “best guess” was that a knife found near the scene of a murder was unrelated to the crime. In fact, Van Kampen had received a forensic report indicating that the victim’s blood and the blood of an unidentified person was on the knife. Had the report been disclosed, the wrongful conviction of an innocent man, Maurice Patterson, who spent seven years behind bars for the crime, could have been averted.
None of the above, however, comes close to matching Cannon’s justice-be-damned persona — which has rendered her unfit to sit in judgment of anyone.
Public confidence in the Criminal Division could be restored somewhat by replacing the elective system of judicial selection with a merit selection system, as favored by the Chicago Bar Association, Chicago Council of Lawyers, and Illinois State Bar Association. Establishing merit selection, unfortunately, is unlikely anytime soon. Changing the system would require amending the state constitution, a most cumbersome, albeit worthy, endeavor that should be undertaken with all deliberate speed.
Meanwhile, Circuit Court Chief Judge Timothy C. Evans should move Cannon out of the Criminal Division into a less sensitive position — Marriage Court perhaps.
There is precedent for reassigning problematic judges. Chief Judge Harry Comerford did precisely that in 1986: After Criminal Division Judge Lawrence C. Passarella acquitted a violent criminal, Michael J. Colella, of attempted murder for savagely beating a policewoman named Kathy A. Touhy following a traffic stop.
Passarella was dispatched to the Law Division, where he sat virtually idle for eight months — until voters ousted him in November 1986 in the wake of a media blitz led by the late Chicago Tribune columnist Mike Royko. Passarella’s sin in acquitting Colella, of course, was offensive to the Fraternal Order of Police, whereas Cannon’s myriad sins are not. Not only is she is an FOP favorite but the Tribune has editorialized that “the public ought to defer to [her] evaluation” of the Evans case.
Comerford probably would not have had the intestinal fortitude to reassign Cannon and neither, in all likelihood, will Evans, in which case his inaction will further highlight the double standard that plagues the criminal justice system and will continue to do so unless and until something or someone — a constitutional amendment establishing merit selection of judges or a chief judge who cares more about justice than pleasing his fans in the FOP — comes along to rattle the tyranny of the status quo.
Rob Warden is co-director of Injustice Watch.