Cook County judge acquitted of gun charge got break others have not

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A version of this article is being published by the Chicago Sun-Times.

Cook County Circuit Judge Joseph Claps received a benefit of the doubt that many defendants of color are not given when he was recently acquitted of a gun violation, an Injustice Watch investigation shows.

The October ruling from visiting Will County Judge Edward Burmila was based on his finding that prosecutors had failed to prove that the object Claps dropped in front of sheriff’s deputies in the lobby of the George Leighton Criminal Courthouse was a gun. The scene was caught on video, and sheriff’s deputies later testified that they saw the object as it dropped and identified it as a gun.

 

After the incident, Claps, 70, was placed on “non-judicial duties” and still remains on administrative duty, according to Pat Milhizer, spokesman for Chief Cook County Judge Timothy Evans.

Milhizer said the matter has been referred to the Illinois Judicial Inquiry Board, which investigates allegations of misconduct by judges.

The acquittal is in contrast to 14 recent cases identified in a review of Cook County cases of defendants charged with gun violations who were convicted even though no gun was found. All but one of the reviewed cases involved a Black defendant; the remaining case involved a Hispanic defendant.

Two legal scholars who study race within the criminal justice system said in interviews that they believed Burmila’s decisions reflected a double standard that affords those with connections receiving favored benefits, while typical defendants — suspects of color, often impoverished — do not get the same breaks.

“The issue is that the judge here protected one of his own. Surely Judge Claps is not being treated like the average defendant, and the average defendant is Black,” said Nicole Gonzalez Van Cleve, associate professor of sociology and criminal justice at the University of Delaware.

Echoed Samuel Jones, law professor at John Marshall Law School,  “There’s just a long history in the United States of African Americans being treated differently by law enforcement.”

No gun, no problem

The Illinois Supreme Court in 2012 and again last year upheld convictions that involved the use of a firearm, even though no firearm was recovered. In the case of James Washington the court upheld the conviction based on the testimony of the victim that Washington held a gun on him during a carjacking on the South Side, despite his attorney’s argument that there was no evidence to prove the object was not actually a toy.

The court upheld the 2017 armed robbery conviction of Eugene Wright based on the certainty of the victim that Wright had a gun when he robbed a Rogers Park restaurant, though no gun was recovered and police found a BB gun near the crime scene a week later.

Since then, the Injustice Watch review showed, appellate courts have repeatedly upheld convictions involving gun charges based on the testimony of witnesses or based on videotape showing an object that appears to be a gun, even if no gun is recovered.

Those cases stand in contrast to what occurred when Claps was charged with a misdemeanor gun charge after he dropped an object that sheriff deputies said was a gun as he walked through the courthouse lobby. The object fell nearby a passing deputy sheriff, video of the incident released by the sheriff’s office shows.

No one stopped Claps as he picked up the object and left. Instead, the deputies immediately reported the incident to their supervisor.

The judge — who has a concealed-carry license — was later charged with carrying a concealed weapon in a prohibited area, which carries a maximum sentence of 180 days in jail and a $2,500 fine.

The two deputies testified at trial that they failed to apprehend Claps because they were uncertain if judges were permitted to carry a gun in the courthouse. But they both testified what Claps dropped was a gun.

Testified Patricia Scott: “It was a firearm … It was a gun.”

Similarly, testified Vanessa Williams: “I turned around and looked and I observed a weapon on the floor of the lobby….I knew that it was a semiautomatic and it was silver.” She added, “It was a gun.”

The prosecution also introduced the courthouse video of the incident during trial.

In defending Claps, attorney Thomas Breen argued that the deputies could have been mistaken about what object Claps dropped in front of them. Breen argued during the trial, “We know full-well that something can look like and appear to be a gun and not, in fact, be a firearm … There are replicas out there. There are cap guns out there. There are water pistols out there. There are BB guns out there that might look like a firearm.”

In finding Claps not guilty, Burmila ruled that the State failed to sufficiently prove that the weapon in the video was indeed a firearm. He said he was convinced that if the object was a gun, the deputies would have responded with more alarm.

The ruling, said Van Cleve, author of Crook County: Racism and Injustice in America’s Largest Criminal Court, “does not mean it wasn’t a gun.” All it means, she said, is that “they gave Judge Claps special privileges.”

Contrasting outcomes

The Injustice Watch review identified a series cases that appeared to stand in contrast:

In November 2017 the Illinois Appellate Court affirmed Keleen Bishop’s conviction for a 2012  break-in at a home on the South Side after a victim testified saying he saw Bishop with what looked like a .22 caliber firearm during the crime but could have possibly been a toy. No weapon was ever admitted into evidence.

In the case of Dwayne Burke, an Illinois Appellate Court panel in 2016 upheld his conviction on armed robbery charges based on the testimony of the cashier at an Evergreen Park gas station who testified Burke had pulled a gun on her and demanded money. The cashier said the gun was “black” and that it “looked real to me.” Her testimony was corroborated by surveillance video that showed a black object in Burke’s hand as he committed the robbery. The court turned away Burke’s contention that it could have been a toy gun or BB gun, writing that “there is no evidence in the record to suggest that the gun was anything other than a real firearm” despite police never recovering a firearm.

In August the Illinois Appellate Court upheld the conviction of a minor identified as “Jose A.” of armed robbery and battery after the victim said he saw a silver gun in the respondent’s hand as he was being robbed  in Wicker Park. Surveillance video appeared to support his account, although no firearm was ever admitted into evidence.

Van Cleve and others interviewed expressed concern that Claps received differential treatment from the moment the gun was dropped in the lobby.  “If this was any other person, he would’ve been tackled … it’s very clear in his status as an insider that he had special circumstances and special privileges.”

The sheriff’s office disputes that account, saying the deputies were not sure whether the law forbidding guns in the courthouse provided an exemption for judges. Spokeswoman Cara Smith said that “In every regard this is an unusual and unprecedented case and we think the deputies acted appropriately in bringing it to the supervisors immediately.”

Cook County Public Defender Amy Campanelli said that prosecutors at times agree not to pursue gun charges if no gun is produced. Campanelli said she hopes that the treatment afforded to Claps is the norm: “I hope the judges are fair to everyone that comes into the courtroom and just not [Claps] because he’s a judge.”

Van Cleve and others think otherwise, saying the case is especially troubling because of the appearance of special treatment.. “It doesn’t seem like they were in any way concerned with the appearance of justice in this case at all,” she said.

Rachel Kim, Mari Cohen, Abigail Blachman, and Abigail Bazin contributed research.