A Cook County judge overturned a 25-year old murder conviction this week based on evidence the defendant was tortured into confessing to the killing by Chicago police officers who served on the squad commanded by disgraced former Cmdr. Jon Burge.
The order, signed Tuesday by Associate Judge Peggy Chiampas, came almost two years after the Illinois Torture and Relief Commission found it likely that Arnold Day, now 45, had been beaten and choked while being interrogated for hours until he confessed to the two unrelated shooting deaths of Raphael Garcia and Jerrod Erving.
The prosecution agreed not to seek to retry Day, who has been in prison since 1994 after he was convicted of murdering Erving and sentenced to 60 years in prison for the murder and armed robbery. He was acquitted by a separate jury of the Garcia murder, though he had confessed to police that he committed both crimes.
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The Cook County State’s Attorney agreed not to retry the case, Chiampas’ order notes.
Day has long contended that he was kicked in the head while being arrested in a South Side apartment by Chicago police Officer Judd Evans, a gang specialist. He was taken to the station and questioned by Detectives William Foley and Kenneth Boudreau, both working under Cmdr. Burge; at one point, Day contended, Foley choked him and threatened to throw him out a window while Detective Boudreau stood by.
Foley, who has since died, and Boudreau both denied at the time of trial that Day had been mistreated. The TIRC commission noted those denials, but noted that Day had consistently contended over the years the torture that occurred. While some details changed over time, the commission noted, his claim of torture has been “broadly consistent” since 1993.
The commission also noted that the fact that a jury acquitted Day of murdering Garcia, and that some of Day’s confession conflicted with the physical evidence, gave weight to his claim of torture.
Both Foley and Boudreau have been named in numerous complaints and federal lawsuits. In eight cases, the two were both named in the same civil rights lawsuits.
In May, Boudreau took the stand in an unrelated civil rights lawsuit and denied he ever had beaten a suspect.
Steve Greenberg, Day’s attorney, said Wednesday he was glad the special prosecutors and judge made the “right decision” in this case but mentioned the challenges in getting cases like Day’s the attention they deserve.
“We know [coerced confessions have] happened too many times in the past to say ‘this person is full of it and making it up…,” he said. He said that authorities needed to create an independent authority that had authority to grant relief vested in that the Illinois Torture Inquiry and Relief Commission.
Jerrod Erving was shot to death shortly after midnight on May 17, 1991. There was scant physical evidence: No murder weapon, no fingerprints on shell casings found at the scene, and no footprints.
Months after the murder, police interviewed a gang member named Ralph Watson who told them that Day was a fellow gang member and had committed the murder. But by the time of trial Watson recanted his confession, and was not called as a witness.
Day testified that he had left the gang before the murder occurred but that he continued to be familiar with Blackstone Nation members as he grew up with them.
In her order overturning the conviction, Judge Chiampas noted the TIRC commission findings as well as the allegations of torture that Day raised in his petition. She failed to respond to requests for comment Wednesday.