As it overturns conviction, Illinois appeals court chastises Cook County judge

James Gibson has spent the last 29 years in prison, convicted of killing an insurance agent and his customer in a botched robbery in 1989.

Last week, an Illinois Appellate Court panel overturned the conviction and ordered a new trial, harshly chastising a Cook County Court associate judge who had concluded that Gibson’s claims that he had been tortured into confessing were not credible.

In finding that Gibson had presented credible evidence that he was tortured by detectives under the command of now-disgraced Chicago Police Department Commander Jon Burge, who died last year, the court found “serious flaws” in Judge Neera Walsh’s ruling to the contrary, saying it was “against the manifest weight of the evidence.”

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It marked the second time that the court reversed Walsh’s finding that Gibson was not credible, and that was enough for the appellate panel. In an opinion authored by David W. Ellis and joined by Eileen O’Neill Burke and Robert E. Gordon, the opinion calls Walsh’s rejection of the evidence that Gibson was tortured into confessing “arbitrary, and manifestly wrong.”

The panel directed the case be reassigned to a new judge to “avoid substantial prejudice” to Gibson.

“This judge, for whatever reason, did not want to open her eyes to what was right there in front of her, which was that Jim was beaten for days into making a statement,” said Joel Brodsky, who with Ramon Moore represented Gibson on both appeals.

Those appeals came after the Illinois Torture Inquiry and Relief Commission (TIRC) credited a claim of torture that Gibson filed in 2012, alleging that he was punched, kicked and slapped in the chest before providing the incriminating statement after two days of interrogation in police custody.

After TIRC found Gibson’s claim credible, the case was assigned to Walsh; at a hearing she conducted, Sergeant John Byrne and Detective John Paladino both invoked the Fifth Amendment and refused to answer any questions about their roles in investigating Gibson in 1989. Paladino was accused by Gibson of being one of the detectives who assaulted him, while Byrne was of supervising the officers who inflicted the beating.

Walsh refused after the hearing to make any negative inferences from the officers’ silence; the appellate court panel found that Walsh was wrong, and that the officers’ silence was telling. Stated the appellate court:  “This was not a case of competing accounts of what really happened in that interrogation room; there was defendant’s account, and then there was silence.”

Judge remains unconvinced

When the case was sent back to her, Walsh still found that Gibson was not credible in his claim.

She concluded Gibson had invented a claim of abuse to “piggyback” on the claim of abuse by a co-defendant, Eric Johnson, whose murder conviction had been overturned in 2012.

Johnson had been convicted of taking money from Gibson to serve as the lookout while Gibson attempted a robbery that ended in the murder of insurance agent Lloyd Benjamin and customer Hunter Wash.

After the police received a tip, Gibson and Johnson, who was his neighbor, were brought in for questioning. Gibson was first released without charges, after which he went home and filed a misconduct complaint saying he had been assaulted at the station. The detectives the next day brought Gibson back in for additional questioning, during which he ultimately told police that he had been present when the murder occurred but had not committed the murder himself.

In its initial decision not to grant Gibson’s petition, Walsh singled out one reason that the defendant’s complaint to OPS hours after his interrogation was not credible: that he did not seek medical treatment.

But after Gibson was charged and appeared in bond court, the bond court judge ordered photographs be taken of the alleged injury, and Gibson was taken to Cermak Hospital where he was treated.    Emergency room records note he claimed he was hit by police.

Much support for allegation of abuse

The opinion pointed to several pieces of information besides the officers’ invoking their Fifth Amendment rights, most of which were uncovered by the TIRC investigation into Gibson’s complaint.

That evidence included Gibson’s complaint to police, after the initial questioning; the photographs taken after bond court, showing swelling and bruising of his chest; and a pathologist’s conclusion those photographs were consistent with his claim of being beaten.

“The circuit court apparently believed that the defendant did lie” not only when he first reported alleged misconduct, but also “to his bond-court attorney, to the bond-court judge, and to the doctors at Cermak Hospital,” the appellate panel wrote.

Walsh had discounted the evidence of bruising, suggesting that perhaps Gibson suffered those injuries while locked up after arrest, or perhaps had inflicted the injuries on himself.

The appellate court noted there was no evidence to support that theory, adding, “We will not indulge in any more speculation…There is not a shred of evidence that defendant was injured in a holding cell, at his own hands, or in any way other than one: Burge’s subordinates beat him during his interrogation.”

When he described the torture to TIRC, Gibson contended that an officer had burned him with an iron. While finding Gibson credible, TIRC rejected the burn allegation, since it had been raised so belatedly.

Walsh pointed to the disbelieved burn allegation as reason to doubt the defendant’s other allegations also were credible.

But the appellate court concluded, “The burn allegation, dubious as it is, is not a sufficient reason to reject defendant’s core allegations as unbelievable.”

The appellate court also found fault with Gibson’s trial attorney for not raising the allegation of coercion before trial, referring to his “incompetent advice” that was “etched into the record” both pretrial and at trial. It was, the appellate panel wrote, “laughably bad advice.”

The appellate court not only ruled that Gibson is entitled to a new trial. In addition, the court ruled that if the state retries Gibson, it may not introduce as evidence his statement that he was present at the murder.