Cook County judicial candidate, colleague misled jury into wrongful conviction

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This is the first of a series of Injustice Watch reports on candidates and campaigning for the Cook County Circuit Court 2018 elections. 

Longtime Cook County Assistant State’s Attorney Michael Gerber achieved his lifelong dream in December 2016 when the state Supreme Court appointed him to the Cook County Circuit Court, filling a vacancy.

But as he now runs to win a full six-year term, Gerber faces a potential obstacle: Another Cook County judge has ruled that Gerber and a second prosecutor made false statements to a jury that led to a wrongful conviction.

Beginning on February 21, Cook County voters will start heading to the polls to winnow down the field of 110 primary judicial candidates vying to fill 39 vacancies on the bench. For the majority of races in which there is no partisan contest, the primary elections serve as the final word in who will become a judge in Cook County. This article is part of Injustice Watch‘s continuing coverage prior to the March elections.

At issue are statements that Gerber and a co-counsel made as they handled the retrial of Arthur Brown in 2008 on charges of double murder and arson. The charges stemmed from a 1988 gasoline-fueled blaze that burned down seven South Side businesses, killing two victims who were asleep in one of the buildings.

The prosecutors’ statements at the 2008 retrial about the sequence of events directly conflicted with the evidence prosecutors presented at the first trial, in 1990. Gerber was the prosecutor at both trials.

In overturning the conviction in October, Circuit Court Associate Judge Joseph Claps ruled that the prosecutors’ statements at retrial “amounted to a purposeful due process violation that led to [Brown’s] conviction.”

Brown’s exoneration received media attention in November, but the role of Gerber, who was a sitting judge at the time the conviction was overturned, was largely overlooked.

“I don’t know him beyond this case,” Ronald Safer, one of Brown’s attorneys, said of Gerber recently. “In this case his conduct was egregious.”

Michael Gerber campaign

Judge Michael Gerber

Gerber said that he could not comment on the case. Gerber’s co-counsel Mary Lacy, who now works as an assistant attorney general, failed to respond to requests for comment.

Brown, a handyman for the stores, had no prior record when he was arrested in 1988. After hours of questioning, he gave a confession to the crime that was used in the 1990 trial. The prosecution contended that the owner of a video store in the strip, Michael Harper, had arranged for Brown and others to burn down the store.

The key evidence at the 1990 trial included the confessions of Brown and of Harper, who was tried simultaneously to a separate jury, and testimony from a gas station attendant who said he had sold the gasoline to Brown. The jury convicted Brown despite his contention that he was innocent and that he confessed only after detectives beat him and denied him access to a lawyer.

Circuit Court Judge Fred Suria rejected prosecutors’ request for the death penalty and sentenced Brown to life in prison.

Brown was awarded a new trial in 2005 after another prisoner serving a life sentence confessed that he had started the blaze to get at Brown over a debt Brown owed. By then, the gas station attendant had also recanted his statement that he sold the gasoline to Brown, saying the police had pressured him into identifying Brown.

On retrial, Gerber and co-counsel Lacy both suggested to the jury that Brown had given the police information, during his interrogation, that led them to find the gasoline can. Detective Joseph Fine testified that Detective Joseph Campbell went to retrieve the gas can after Fine had interrogated Brown.

In her closing argument, Lacy told the jury, “Well, one thing to remember, the police didn’t find the gas can until after they had talked to Arthur Brown.” After Brown confessed to Detective Fine, she told the jury, Detective Campbell then “goes out and finds it in that breezeway, sure enough, with the white rag on it.”

In the final rebuttal, Gerber reiterated that the gas can “was out there and they found it after they talked to this guy,” referring to Brown.

But that conflicted with testimony from the first trial, when Campbell testified that he tracked down the gas can based on information unrelated to what Brown told detectives during the interrogation. At the first trial, Campbell responded “No” to the question, “Before you went to look for the gas can, did [Brown] tell you there was a gas can back at 420 East 63rd Street?” He also testified that he did not know of any conversations between other detectives and Brown until he got back from recovering the gas can.

Claps overturned the second conviction in October, finding that Brown’s appellate counsel had failed to effectively represent her client by not raising the issue of prosecutorial misconduct.

“Given the detectives’ testimony from the first trial, this was a false statement,” Claps wrote of the prosecutors’ arguments. “A jury could have reached a contrary verdict had these arguments not been made,” he added. “Indeed, such statements amounted to a purposeful due process violation that led to petitioner’s conviction.”

The State planned to appeal Claps’ ruling until Brown’s legal team raised the case with State’s Attorney Kim Foxx. After finding sufficient evidence of Brown’s innocence, Foxx’s office decided to drop the case.

In November, Brown was freed from Cook County Jail after 29 years behind bars. His attorneys are now asking the court to grant Brown a certificate of innocence. His case was recently added to the National Registry of Exonerations, which noted Gerber’s role.

Gerber, then 71, had served 33 years as an assistant state’s attorney—making him the longest-serving member of the office—when he was appointed last year to fill a vacancy on the bench. Prosecutors and defense lawyers alike praised his appointment.

The appointment runs through 2018, and Gerber, now assigned to Skokie Courthouse, is running for a full term as a Republican candidate in the March primary in the 13th Cook County judicial subcircuit in far northwest Cook County. The subcircuit covers parts of Chicago suburbs Barrington, Palatine, Wheeling, Schaumburg, Hanover and Elk Grove.