Appeals court reversals mar record of Cook County judge up for retention Nov. 8

On Friday, Injustice Watch reported on a police brutality case in which Cook County Circuit Court Judge Nicholas R. Ford, who is seeking retention in the Nov. 8 election, had been reversed by the Illinois Appellate Court for abuse of discretion.

Today we describe four more cases in which Ford has been reversed since his most recent retention six years ago.

Ford did not respond to repeated requests for comment.

The Santos Calaff case

Shortly after Emanuel Leeks, 23, was shot to death in the predawn hours of July 17, 2010, while sitting in a car in Chicago’s Logan Square neighborhood, police apprehended Santos Calaff, 29, two and a half blocks away, handcuffed him, and took him to the scene, where five eyewitnesses identified him as the killer.

Although Calaff matched a general description provided by two of the witnesses before he was picked up — “male Hispanic with long hair wearing a blue shirt” — the identifications were weak as a result of two factors known to increase error: First, the handcuffed Calaff was presented to the witnesses simultaneously, which is known to be suggestive. Second, the identifications were cross-racial, which significantly increases the risk of error; the suspect was Hispanic, the witnesses African American.

The reliability of the identifications was further called into question when a gun-shot-residue test indicated that Calaff “may not have discharged a firearm,” as Mary Wong, a state forensic chemist, would testify.

Nonetheless, based solely on the identifications — the murder weapon was not recovered — Calaff was indicted for first-degree murder. The case was assigned to Judge Ford. Calaff demanded a jury trial and moved to suppress the identifications, primarily on the ground that the simultaneous “show-up” had been improper.

Ford denied the motion, whereupon Calaff sought to allow Daniel Wright, a professor of legal psychology at Florida International University, to testify as an expert regarding eyewitness error — a well-documented major cause of false convictions. Ford held that Wright would not be allowed to testify at trial, saying that in “my own personal view,” psychologists study eyewitness error “so as to increase their degree of remuneration,” adding, “That’s a way of saying I think they’re in it for the money.”

At the ensuing trial, the jury found Calaff guilty. Then, at a hearing on a post-trial motion for a new trial, a man named Richard Lopez, who had not testified at the trial, came forward to say that he had seen the crime. He said the killer was a man he knew as “Javoney” — who had fled in a Cadillac, which could explain why the murder weapon was not recovered and why no gun-shot residue was detected on Calaff’s hands.

Branding what he heard from Lopez as “pure perjurious testimony,” Ford denied the new-trial motion and sentenced Calaff to life in prison without parole. On appeal, Calaff’s counsel contended that Ford had erred both in declining to suppress the eyewitness identifications and in refusing to allow Wright to testify. Rejecting both contentions, the Illinois Appellate Court held in 2015 that denial of the suppression motion “was not manifestly erroneous” and that barring Wright’s testimony was within the “discretion for the trial judge.”

The following year, however, the Illinois Supreme Court ruled in an unrelated case that research on eyewitness reliability had in recent years advanced to a point where “we are able to recognize that such research is well-settled, well-supported, and in appropriate cases a perfectly proper subject for expert testimony.”

The Supreme Court ruling came in the case of Eduardo Lerma, a Chicagoan whose first-degree murder conviction, like Calaff’s, rested solely on eyewitness identifications. In reversing and remanding Lerma’s case for a retrial, the Supreme Court held that Cook County Circuit Court Judge Timothy J. Joyce had abused his discretion in barring the testimony of Geoffery Loftus, a noted expert on eyewitness fallibility.

Exercising its supervisory authority, the Supreme Court ordered the Appellate Court to reconsider the Calaff case and “determine if a different result is warranted.” On July 25, 2016, the Appellate Court concluded, contrary to its original decision, that Ford had abused his discretion in barring Wright’s testimony. Calaff’s conviction, accordingly, was reversed and his case was remanded for a new trial, which is pending.

The Charles Jackson case

At his 2009 murder trial before Judge Ford without a jury, Charles Jackson pleaded not guilty by reason of insanity. Dr. Bruce Frumkin, a forensic psychologist, testified for the defense that, as a result of persisting dementia from substance abuse, Jackson was not sane and thus did not appreciate the wrongfulness of his crime – the murder of his son-in-law, Pierre Champliss, on July 27, 2007.

During both the direct and cross examination of Frumkin, Ford repeatedly interjected himself and proceeded to reject the insanity defense, which would have required acquittal, finding Jackson instead guilty but mentally ill, which carries the same penalty as first-degree murder, except that the Department of Corrections must provide mental health treatment to the convicted person.

In 2001, the Illinois Appellate Court reversed Jackson’s conviction, holding that Ford abandoned his “role as a neutral and impartial arbiter of fact by adopting a prosecutorial role” and relying on his purported personal knowledge of matters outside of the trial record.

“We hold that the trial court’s conduct constitutes an abuse of its discretion,” said the appellate opinion. “The trial court’s abuse of its discretion was plain error and rendered defendant’s trial fundamentally unfair. . . . [T]he tone and manner of the questions asked [of] Dr. Frumkin exhibit bias that is more similar to a cross-examining prosecutor than an impartial jurist. . . . The . . . questioning was argumentative and showed a disregard and unfavorable bias toward Dr. Frumkin’s testimony.”

The Appellate Court found Ford’s abuse of discretion sufficiently egregious that it remanded the case to the presiding judge of the Criminal Division of the Cook County Circuit Court with instructions to assign the case to a judge other than Ford for retrial.

The case was assigned to Judge James B. Linn, before whom it remains pending. It was delayed by the appeal of a pretrial holding by Linn that double jeopardy does not bar retrying Jackson for first-degree murder; the defense wanted Jackson’s maximum exposure to be guilty but mentally ill. The Appellate Court affirmed Linn’s holding in July 2015.

The Anthony Jakes case

Twenty-five years ago — after eight hours of interrogation by Chicago Police Detectives Michael Kill and Kenneth Boudreau, who now are known to have systematically beaten and tortured African American crime suspects — 15-year-old Anthony Jakes confessed that he had been a lookout when an attempted armed robbery by a fellow gang member turned into a murder.

The crime occurred a few minutes before midnight on Sept. 15, 1991, as the victim, Rafael Garcia, 48, left a sandwich shop in the 1200 block of West 51^st Street. The next morning, as a result of an anonymous tip to the effect that Jakes knew something about the crime, four police officers went to his home and took him to Area Three Police Headquarters for questioning. There he signed a confession that he has since consistently maintained was false and had been beaten out of him by Kill in the presence of Boudreau. Both detectives worked under Police Commander Jon Burge.

The confession was dubious because Jakes claimed that after he heard the shots, he ran home, where from a window he saw the victim lying in the street. In fact, the location of the body was not visible from the window. Nonetheless, based solely on the uncorroborated confession, Jakes was charged with first-degree murder — for which, despite his alleged limited participation, he was legally accountable under the law.

The case was assigned to Judge Thomas D. Durkin, before whom Jakes filed a pretrial motion to suppress the confession, alleging that he had been beaten by Kill. Despite photographs showing injuries that Jakes claimed Kill had inflicted, and despite discrepancies between the confession and the crime, Durkin deemed the confession voluntary.

Meanwhile, 19-year-old Arnold Day, the alleged killer for whom Jakes had confessed being a lookout, also was charged with first-degree murder. In October 1993, the youths were tried simultaneously before separate juries in Durkin’s courtroom. Jakes took the stand, testifying that Kill knocked him to the floor, beat and kicked him, and threatened to push him out of an upper-story window at Area Three if he did not confess. Day, who also confessed but claimed to have been abused by Boudreau, among others, did not testify.

Day was acquitted, but Jakes was convicted and sentenced to 40 years in prison. After losing his direct appeal in 1995, Jakes filed a petition for post-conviction relief, which has bounced around the courts ever since. Initially, the petition automatically went before Durkin, the trial judge, but when Durkin left the bench in 2001 to become a private mediator it was assigned to Judge Michael P. Toomin, who dismissed it.

In 2006, the Appellate Court reversed Toomin, remanding the case for an evidentiary hearing, which was pending in August 2008 when Toomin was appointed to the Illinois Appellate Court. Thereupon, the case was reassigned to Judge Ford, who dismissed it in September 2011 after denying a motion to grant Jakes access to records of misconduct by Kill and Boudreau in other cases.

In July 2013, while Jakes was appealing the Ford ruling, the Illinois Torture Inquiry and Relief Commission found Jakes’s torture claim credible and, as the commission is empowered to do, referred it to the Circuit Court for adjudication. The case was assigned to Judge William H. Hooks. According to the commission, Kill had been accused of torturing suspects in a score of other cases and once had testified that he had obtained confessions in an estimated 90 percent of some 1,500 murder cases he had handled during his career.

In December 2013, the Appellate Court held that Ford had abused his discretion in dismissing the Jakes post-conviction petition and remanded the case for an evidentiary hearing on Kill and Boudreau’s misconduct, noting: “The Circuit Court denied the motion for discovery and then held that the evidence Jakes presented without discovery did not sufficiently establish Kill’s pattern and practice of beating and threatening suspects to get them to sign confessions.”

In January 2015, the evidentiary hearing on the post-conviction petition was consolidated with the torture commission referral before Judge Hooks, who is expected to rule on both matters soon.

The Kenneth Hobson case

In October 2001, 26-year-old Shaughnessy Tate was gunned down on Chicago’s West Side. Two and a half years later, in May 2004, Kenneth Hobson, 29, was arrested and charged with the murder. The prosecution alleged that Hobson had been the driver of a van from which two passengers fired the fatal shots. Hobson was convicted of the murder at a bench trial before Judge Ford and sentenced to 35 years in prison in 2005.

After the Appellate Court affirmed the conviction two years later, Hobson filed a petition for post-conviction relief alleging that Ford improperly relied on signed statements that Chicago Police Detective Michael Dyra obtained from three witnesses — Rashaan Smith, Travis Weston, and Hobson’s sister, Valarie Harper. None of the three had seen the crime, but, according to their signed statements, they were present when Hobson and the men who supposedly shot Tate celebrated the killing, exchanging high-fives, shortly after it occurred.

At Hobson’s trial, Smith and Weston completely disavowed the statements they had given Dyra and Harper materially contradicted hers. Smith and Weston testified that they falsely implicated Hobson in the hope of receiving leniency in unrelated cases; Weston also alleged that Dyra threatened to charge him with Tate’s murder unless he signed the statement. Harper recanted only a portion of her statement that implicated her brother, saying that she had falsely been led to believe that she would help him avoid prosecution by signing the statement, which the police prepared. In rebuttal, Dyra testified that when he obtained the statements from Smith and Weston he had been unaware of charges pending against them.

In finding Hobson guilty, Judge Ford stated on the record that he relied on the recanted statements. The Illinois Appellate Court affirmed Hobson’s conviction in 2007. Hobson then filed a petition for post-conviction relief, presenting evidence not only that Dyra knew about charges pending against Smith and Weston when he interrogated them but that they indeed had received leniency after signing their statements and reiterating the substance of the statements before the grand jury that indicted Hobson.

Indeed, Smith had faced a sentence of up to 18 years for drug possession, but just two days after testifying before the grand jury received a sentence requiring him to serve just 90 days, and, when interrogated by Dyra, Weston had been under arrest on an outstanding warrant that was dropped.

Ford denied a hearing on Hobson’s post-conviction hearing without a hearing in 2011. On appeal, the Appellate Court considered the issues raised in Hobson’s opinion, as well as an issue that he had not raised — that his trial attorney had failed to object to the admission of the hearsay on which Ford had relied finding Hobson guilty.

In March 2014, the Appellate Court held that Hobson had been denied effective assistance of counsel and remanded the case to Ford for a hearing on petition for post-conviction relief, saying: “We find that Hobson has made a substantial showing of a reasonable probability that he would have achieved a better result if his trial counsel had not committed unprofessional errors.”

Some 31 months after the remand, the case remains pending before Ford. It is one of several cases in which Ford’s denials of post-trial evidentiary hearings have been reversed and remain pending. Others are the cases of Reynoldo Munoz, 47, who now is nearing parole in a murder case, and Syboo Phillips, 41, who has a little more than a decade to serve for a second-degree and attempted murder case.

Other cases

Of 16 Ford reversals reviewed by Injustice Watch, his abuses of discretion favored the prosecution in all but three. One of the outliers was the case Injustice Watch summarized on Friday in which the defendant was a suburban police officer, Jason Leavitt.

The other two were narcotics cases in which the Appellate Court held that Ford had improperly suppressed prosecution evidence. On remand, Jason Daniel was found not guilty of drug possession. Prosecutors dropped charges against José Contreras.

The Chicago Council of Lawyers rated Ford “not qualified” for retention in the Nov. 8 election, but the Chicago Bar Association and Illinois State Bar Association rated him qualified.