A high-stakes legal feud between a special prosecutor and two appellate court justices has interjected a wrongful conviction appeal with extraordinary accusations of personal bias, threats of sanctions, and angry barbs.
Two justices from the First District Appellate Court panel issued a scathing majority opinion attacking the prosecutor for alleged misconduct and referring him for discipline using a legal theory a dissenting justice said was manufactured from “whole cloth.”
The 2-1 opinion issued Dec. 22 questions the credibility of Robert Milan, a career prosecutor appointed to review dozens of convictions tainted by allegations of Chicago police torture.
The justices’ attack on Milan came in the appeal of Abdul Malik Muhammad — now serving 50 years in prison for a 1999 gang-related murder — who wants his case overturned on allegations of police torture.
The opinion also follows a 154-page motion Milan filed in the case last year accusing one of the appellate judges, Carl A. Walker, of personal bias against him.
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In response, Walker and Appellate Judge Michael Hyman excoriated Milan — as well as their colleague on the panel, dissenting Appellate Judge Sanjay Tailor.
In their 42-page majority opinion, the justices said Milan — who was a supervisor in the Cook County State’s Attorney’s Office when Muhammad was charged — has a direct conflict of interest because he is “in the unusual position of having to judge himself and those who were his subordinates.”
The conflict of interest claims against Milan have already been rejected by two different chief criminal court judges, as well as the Illinois Supreme Court, which declined to consider the issue in a previous appeal from Muhammad’s attorney.
The two justices further accused Milan of hiding his background during his appointment as a special prosecutor. They ordered him tossed from the Muhammad case. And they took the extraordinary step of directing the court clerk to send their ruling to the Illinois Attorney Registration and Disciplinary Commission, which investigates misconduct by lawyers.
“Milan remained silent, earning thousands of dollars in compensation and overseeing a case involving an underling at the State’s Attorney’s Office who Muhammad alleged had tortured him when he was a police officer,” Hyman and Walker wrote. “His actual conflict exposed, Milan cannot remain in place.
“He violated rules of professional conduct,” the majority opinion continued. “Failing to replace Milan as special prosecutor would undermine the integrity of the court.”
Public records show Milan’s history as the former first assistant state’s attorney for Cook County was prominently cited in the 2017 court order appointing him as special prosecutor and emphasized in numerous news reports.
Since his appointment, Milan has asked the courts to uphold more than a dozen homicide convictions, but he has also won praise from some civil rights activists for moving to vacate others including Kevin Bailey, Corey Batchelor, Demond Weston, Arnold Day, and Anthony Jakes.
Hyman and Walker also attacked Tailor’s 33-page dissenting opinion as containing “multiple missteps” with “baseless” and “farfetched” claims on the law.
All three justices are Democrats.
Tailor concluded Milan had no conflict of interest because there was no evidence he played any role in Muhammad’s prosecution.
“The majority has manufactured Muhammad’s due process claim out of whole cloth,” Tailor wrote in his dissent, “denying Milan an opportunity to respond, in derogation of our supreme court’s repeated admonition to avoid assuming the role of advocate.”
Tailor also criticized Hyman and Walker for saying Milan held a “quasi-judicial authority” over all Cook County prosecutions, which Tailor said was a novel legal definition that might disqualify all former supervising prosecutors from serving as special state’s attorneys, causing a devastating ripple through Illinois courts.
That legal phrase typically applies to regulatory agencies, like the U.S. Securities and Exchange Commission or the Federal Communications Commission, professional licensing boards, and administrative panels that hear tax appeals or environmental disputes.
Tailor argued Milan’s job as a felony review supervisor in the state’s attorney’s office was not quasi-judicial but to advocate for the state and follow the facts and the law.
Applying a quasi-judiciary standard to Milan might call into question the integrity of all supervisors in county prosecutor offices, Tailor wrote in his dissent.
“Milan is no more a judge of his own case than any other prosecutor would be in seeking the truth in this or any other case,” Tailor wrote.
At stake here, Tailor wrote, is the viability of special prosecutors who are frequently appointed to oversee high-profile cases across Illinois.
All three justices agree Muhammad’s case should return to the trial court for evidentiary hearings focused on two aspects of Muhammad’s innocence claim.
Muhammad says authorities failed to disclose during trial he participated in several police lineups in which multiple witnesses did not identify him.
And the trial court must resolve the dispute about whether Muhammad’s alibi defense was a “confession” coerced through “torture,” the justices agreed.
Muhammad told police he was out of town at the time of the 1999 murder. At issue are whether such an alibi statement is a confession and whether Muhammad actually was tortured.
A July 2018 Torture Inquiry and Relief Commission report expressed “serious reservations about Muhammad’s credibility” because Muhammad’s allegations about coercive tactics were not raised until 2014 and then grew in scope and severity over time. His “allegations of physical abuse arose only in his recent TIRC interview.”
But it did find sufficient evidence to refer Muhammad’s case back to the trial court for review.
The contentious opinion and dissent, issued Dec. 22, is just the latest salvo in a series of tit-for-tat legal battles between the lawyers and judges in the case.
Muhammad’s attorney, H. Candace Gorman, in 2019 sought Milan’s appointment as a special prosecutor to review the convictions of Muhammad and another homicide defendant.
Gorman says she was unaware at the time that Milan had been a supervising prosecutor.
After Milan’s investigation concluded Muhammad was guilty, Gorman lost numerous bids to disqualify him before then-Chief Judge LeRoy Martin Jr. of the Criminal Division and current Chief Judge Erica Reddick. The Illinois Supreme Court declined to hear her appeal on those rulings.
Then, in October, Milan filed his 154-page motion to disqualify Walker for “deep-seated” personal bias against him and other prosecutors.
Milan contended Walker cannot be fair because of a 20-year-old investigation into Walker’s role as a private attorney in a massive mortgage fraud scheme. The investigation, when Milan was first assistant state’s attorney, included a controversial raid on Walker’s downtown law offices.
Walker’s client was convicted in the fraud scheme, but Walker was not charged.
Milan argued Walker harbored a “deep-seated bias” against him and other Cook County prosecutors because of the law office raid and moved to have the entire panel of justices removed from hearing Muhammad’s appeal.
“Justice Walker’s participation in this matter implicated serious due process concerns,” Milan wrote in his October motion.
Injustice Watch had independently been researching Walker’s alleged role in the mortgage frauds as part of its upcoming judicial election guide and unsealed court records, which included new details on his involvement in the transactions.
Walker also issued an unusual first-person order denying Milan’s motion to disqualify him.
“I hold sacred the trust placed upon me to separate personal matters from legal considerations,” Walker wrote.
Milan then filed a Jan. 12 motion to reconsider the majority opinion, which was rejected. Milan has until Feb. 23 to petition the Illinois Supreme Court for leave to appeal.
Gorman celebrated Muhammad’s appellate court victory.
“It wasn’t so much of an attack [against Milan] as an attempt to right a very serious wrong,” Gorman said. “In all these proceedings we have all this other stuff going on but my client has been sitting in prison for 24 years for a crime he didn’t do, and that should be the focus.”
In an email from Stateville Correctional Center conveyed by Gorman, Muhammad told Injustice Watch: “The opinion itself causes so much emotion. It is a very big win, and yet I am still sitting here for an unknown amount of time.”
“After spending 24 years in prison, there is a vacancy in my life that will never be filled,” he added.
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