Defense attorneys contend Cook County judge seeking retention showed bias

Print

Cook County Circuit Court Judge Michael McHale, a candidate to retain his seat in November, had improper contacts with prosecutors during a murder trial last year, four defense attorneys allege in filings.

The misconduct allegations involve the way McHale handled the murder trial involving the October 2012 shooting of a South Shore man, 74-year-old William Thomas.

The case was among several controversial actions by McHale, identified as part of an Injustice Watch review of the record of all 60 judges who will be on the ballot in November for new six-year terms.

McHale, a former veteran prosecutor, has enjoyed a good reputation. In 2005, he was inducted into the Chicago LGBT Hall of Fame for his “political activism, neighborhood organizing, and professional achievement” as an openly gay assistant state’s attorney.

Portrait of Michael McHale

cookcountyjudges.org

Cook County Circuit Court Judge Michael McHale

He joined the bench in 2006 and has received favorable evaluations from the bar associations; in 2012, the Chicago Council of Lawyers reported he was considered “fair and honest” and was “considered to have an outstanding temperament, remarkable patience and an excellent work ethic.”

But the Injustice Watch review of McHale’s most recent six years on the bench revealed a contrasting picture.

The review identified 12 times in the past six years in which McHale’s decisions were overturned by a higher court, including repeated instances of convictions reversed because McHale improperly prevented the defense from challenging the police version of arrests. He sentenced one defendant to prison for more than a decade for stealing less than $50 in loose change from a vending machine. He convicted another defendant on drug charges based on drugs that were found in a house, but it was never proven that it was the defendant’s house.

And in a landmark gang conspiracy trial now on appeal, defense attorneys contend that McHale was wrong in his handling of allegations of racial bias during deliberations

“This man is unfit to sit in the criminal division,” said defense attorney Ronald Draper.

McHale failed to respond to repeated messages. His office referred questions to a spokeswoman for the Committee for Retention of Judges in Cook County, who also did not respond to a request for comment.

Draper represented Malcolm Terry, one of four defendants charged in the death of Thomas. Terry was accused of providing the murder weapon and serving as a lookout; he went on trial in 2017 along with the accused gunman, Akeem Simmons. The other two defendants had their trials delayed, and were called as witnesses against Terry and Simmons; both were promised limited immunity that ensured what they truthfully testified in court could not be used against them.

When the two refused to testify even under limited immunity, McHale held the two in contempt of court and ordered them held in solitary confinement at the Cook County jail.

Terry’s aunt, Leah Thigpen, would later submit an affidavit stating that she had overheard McHale discuss the case during jury selection with Cook County Assistant State’s Attorney C. Thor Martin without Terry or his attorney present.

Thigpen stated she heard McHale referring in a loud voice to “this code of silence bullshit I’m sick of,” and also heard the judge saying, “this won’t matter at sentencing.” Thigpen also wrote in her statement that the prosecutor and judge discussed Terry’s failure to come to court over an incident that occurred between Terry and a guard. The prosecutor told the judge, according to Thigpen’s affidavit, that he did not believe the defendant, and McHale responded, “I don’t believe him either.”

Martin, who prosecuted all four defendants’ cases, declined to comment on the case through the State’s Attorney’s office.

Legal ethics experts interviewed by Injustice Watch said the discussion, as described by Thigpen, appeared improper. “There should be no pre-formed opinion of the case, of the outcome of the case, of the sentence, before trial has even begun,” said Rebecca Roiphe of the New York Law School.

After the two refused to testify, McHale granted the prosecutors a delay in the trial to introduce new evidence. That Friday, Martin filed a motion to introduce notes that Terry was said to have received in jail, which Martin contended showed Terry influencing co-defendants and potential witnesses.

Then on Saturday, Martin sent an email that included another motion, seeking to introduce evidence of four recordings of conversations Terry had while in jail. The email also included audio files of the recordings.

McHale responded by email that Sunday stating that he listened to the calls and found the prosecutors’ descriptions accurate, but could not find an additional recording that Martin cited in his motion. The email exchange included Terry’s attorney, Draper, but not the attorneys for the other defendants.

Richard Painter, an expert on legal ethics at the University of Minnesota Law School, called the prosecutors’ direct email communications with McHale, rather than through filings with the clerk, “unusual.”

The communications were included among defense attorneys’ complaints about the trial.

In his May response to a motion for a new trial, prosecutor Martin denied all of Terry’s “many boilerplate allegations and some more specific allegations of error” without addressing the communications specifically.

Draper said in an interview McHale prevented him from putting on a proper defense.

Cook County Criminal Courthouse

Following their convictions, Terry was sentenced to 50 years in prison for murder, and Simmons to 65. Their convictions are being appealed.

This February, as co-defendants Aramis McKinzie and Garlin Minor faced their own trials, both filed motions asking that McHale be removed from the case, contending that the judge’s alleged comments about defendants who do not testify showed, as the assistant Cook County public defender Caroline Glennon wrote, “actual bias.”

The state offered McKinzie and Minor a deal before the motion was ever heard. The motions were withdrawn two days after they were filed. McKinzie and Minor both pleaded guilty to the reduced charge of conspiracy to commit murder, and were sentenced to 10 years each in prison.

Record of reversals

McHale’s decisions have been overturned in part or fully reversed 12 times in the last six years. In three cases, the appellate courts reversed convictions because McHale improperly restricted the defense’s ability to contest the police account of events.

In two of them, the court ruled, McHale was wrong to bar the defense in drug prosecutions from learning the precise location of the officer who observed the alleged transactions. In a gun case, McHale erred in permitting the state to introduce an affidavit from an officer stating the defendant did not have the gun registered, rather than calling a witness who could be questioned by the defense.

In 2016, an Illinois panel overturned the sentence of Henry Busse, whom McHale sentenced to 12 years in prison for burglary from a school, after he was found with $44 in quarters taken from a vending machine in a University of Illinois building.

Hoping to deter a “career thief,” McHale told Busse that since “nothing up to this point has made an impression upon you, maybe my twelve-year sentence will make an impression on you.”

By a 2-1 vote an Illinois appellate court panel called the decision “anomalous and absurd” and “grossly disproportionate” to the crime, noting that Busse’s crimes were neither violent nor serious.

“A paltry crime for a paltry sum does not warrant the unpaltry sentence of 12 years,” wrote Justice Michael B. Hyman, finding McHale had abused his judicial discretion. The appellate panel reduced the sentence to 6 years, the minimum sentence.

A contentious jury

Last year McHale presided over a ten-week high-profile trial. Six men were tried under the state’s new anti-racketeering law, accused of running a violent criminal enterprise on Chicago’s West Side as leaders of the Black Souls gang.

The jurors were anonymous, their names kept from the attorneys to avoid any possible pressure. They were sequestered – ordered to stay together, and away from outsiders – as they were sent to deliberate.

Tensions in the jury room quickly became apparent. The jury forewoman and a second juror sent a note complaining of racist and sexist comments.

McHale questioned jurors and dismissed two members but permitted two others to remain.

Portrait of Zerlina Smith on a sunny street corner

Jeanne Kuang / Injustice Watch

Zerlina Smith, pictured in her West Side neighborhood, speaks with reporters about her allegations of racism in the jury room in a murder trial before Judge Michael McHale

The jurors went back to deliberating, but then came another note: the forewoman and the second juror believed the jury instructions were “structured in a style to come to one verdict, and we can’t complete our civic duty due to that.”

Without questioning them, McHale ordered the two dismissed: “I think it’s obvious to this Court that what they are saying is we cannot follow the law.”

The judge refused to grant a mistrial. And after the jury had convicted the defendants on racketeering conspiracy and drug conspiracy charges, McHale refused to allow defense attorneys to send investigators to interview the dismissed jurors, who remained anonymous, defense attorneys said. “I had never seen a case where the judge was so disinterested in finding out the truth about what occurred in his jury,” Dvorak said.

Not all defense counsel agree. One, Lawrence Levin, said the case was complicated, and that McHale had done “a good job with a very, very difficult situation.”

The dismissed juror, Zerlina Smith, who joined the forewoman in her concerns, was not done. Smith, a West Side activist, spoke to the sister of Dvorak’s client, Antwan Davis. Davis’s sister prepared an affidavit, detailing racist comments that Smith said had taken place in the jury room.

McHale again refused to let attorneys speak to Smith, who later showed up for a hearing prepared to detail her concerns in court. McHale again did not allow her to speak.

In May he sentenced all six men to life in prison. The case is being appealed.

In a recent interview with Injustice Watch, Smith described a chaotic jury deliberation in which, she said, jurors threw chairs and used racist slurs in an effort to persuade her to vote to convict. “It was a one-sided paper, it was a setup for guilty,” Smith said.

She added of McHale: “The judge already had his mind made up from day one.”