With 40 reversed decisions, longtime Cook County criminal court judge seeks another 6-year term

Content warning: This article contains graphic descriptions relating to self-mutilation and violence that some might find disturbing.

On a slow-moving Thursday in early October, Cook County Circuit Judge Charles P. Burns drifted in and out of his chambers at the Leighton Criminal Courthouse, checking whether defense attorneys had arrived so he could call their clients’ cases. The lanky, gray-haired Burns, a 24-year veteran of the bench, is running for retention Nov. 8. His speech was hardly audible through his N95 mask, except for when he reprimanded a person in the gallery for their attire or demeanor — it wasn’t clear which. “Come on, come on! You’re in court, ok!” he snapped during the only moment of excitement in an otherwise tedious day.

In the early afternoon, Burns called the case of Kimberlynn Bolanos. An assistant state’s attorney and a public defender stepped up.

“This case is back,” Burns noted, barely above a whisper. The public defender said her office needed about a month to prepare. “November 10,” Burns said, then called another recess. The exchange lasted less than two minutes.

Unlike most of the people whose names Burns called that day, Bolanos isn’t awaiting trial. She pleaded guilty six years ago to the 2013 murder of her infant son. But her case was back in front of Burns because the Illinois Appellate Court ordered him in August to reconsider it. It marked the 40th time in the past six years that the higher court had overturned a decision Burns made.

Bolanos herself wasn’t there for the brief hearing. It will be months before she travels to court from Logan Correctional Center to hear her attorneys argue that her conviction deserves a fresh look. And even when she gets there, she won’t see Burns or the nighttime photograph of the courthouse hanging behind his bench. Because, unlike the last time she was before the judge, she no longer has eyes.

Bolanos was 21 when she stabbed herself and her 5-month-old baby dozens of times. She had a history of mental illness and suicide attempts prior to the birth of her son, and a psychiatrist who examined her immediately after the crime found that she was suffering from postpartum psychosis, while other clinicians diagnosed her with schizophrenia and other disorders.

Bolanos spent more than three years in the Cook County Jail before ultimately agreeing to plead guilty, but mentally ill — a conviction that doesn’t necessarily change the length of the defendant’s sentence but requires the state to provide them with mental health care in prison. Based on a psychiatric evaluation, Burns found her mentally fit to make this plea deal and sentenced her to 38 years. According to court documents, in June 2017, about six months after arriving at the state’s women’s prison north of Springfield, Bolanos gouged out both of her eyes while she was alone in a cell on “crisis watch” and supposed to be closely monitored by prison staff.

In 2019, Bolanos filed a motion from prison arguing that when she pleaded guilty she “was still suffering from her mental illness … and thus incapable of making an informed decision.” Burns dismissed her petition, but the appellate court decided that he made the wrong call.

“This case is chilling,” wrote Appellate Judge Terrence J. Lavin in his opinion for the unanimous three-judge panel, agreeing with Burns’ own description of the facts. The judges cited Bolanos’ history of mental illness, courtroom demeanor, and “post-plea tragedy” in prison as the reason for reversal. They ordered Burns to hold a hearing to determine whether her claims merit a full new evidentiary hearing that could ultimately undo her conviction. The Office of the Cook County Public Defender, which is still representing Bolanos, declined an Injustice Watch request for comment.

Alan Mills, an attorney representing Bolanos in a federal civil lawsuit against the Illinois Department of Corrections that alleges that the prison failed to provide her with proper mental health care, said he was horrified when he first reviewed her file.

“It’s clear that she is severely mentally ill and doesn’t belong in prison at all,” Mills said.

A history of reversals

Bolanos’ case was the latest appellate court reversal for Burns, whose decisions have been undone in 40 cases during his current six-year term. (Two of the cases are pending review by the Illinois Supreme Court.) The other two judges running this year who have spent most of the past six years hearing felony cases, William Hooks and Thaddeus Wilson, have had just 15 and 17 reversals, respectively. (Wilson transferred out of the court’s criminal division last December.)

Not all reversals are created equal. The role of appellate courts is to review cases to make sure defendants got a fair trial and laws were properly applied — and it’s not only on the circuit judge to ensure that happens. Many reversals come as a result of honest mistakes or oversight by defendants’ attorneys.

Some reversals stem from minor errors in the length of a sentence or miscalculations of fines and fees. But in other cases, the appellate court may find that the trial judge made serious mistakes by allowing unconstitutionally obtained evidence to be used against a defendant or finding someone guilty when the state didn’t offer proof beyond a reasonable doubt.

The largest share of Burns’ reversed cases were like Bolanos’, where the appellate court found Burns had improperly rejected a post-trial motion or petition asking to have a case reviewed in light of new evidence or an ineffective lawyer. These petitions are usually filed by people from prison, without help from attorneys, and judges in Illinois have to hold hearings on the merits of their arguments if there’s even a “gist” of a constitutional claim in the original petition.

Hanah Jubeh, a spokeswoman for this year’s judicial retention class, wrote in a statement that Burns’ 40 reversals represent a tiny fraction of the approximately 4,800 cases the judge resolved between 2016 and 2022 and are “not reflective of his performance as a judge.”

Legal experts disagree, however, that 40 reversals aren’t a fair measure of a trial judge’s performance, especially when Burns’ peers in this year’s retention class have tallied fewer than half that number.

“It’s really difficult to get a case reversed on appeal,” said Sue Provenzano, a former Northwestern University law professor who has taught and practiced appellate litigation in Illinois and federal courts for 25 years and is now an assistant professor at Georgia State University School of Law. “Appellate courts give a lot of deference to trial courts. … There’s always a presumption the trial court is correct.”

Plus, a tiny percentage of criminal cases are appealed in the first place. In 2021, nearly 16,000 people were convicted of felonies in Cook County, but only 709 criminal appeals were filed that year, according to the most recent statistical report from the Illinois courts.

According to Provenzano and five other lawyers interviewed by Injustice Watch, the most concerning types of reversals in criminal cases are when an appellate court finds a judge was wrong to convict someone in a bench trial (when the judge, rather than a jury, decides a case). This is especially troubling when the appellate court finds that the state failed to present sufficient evidence of a defendant’s guilt beyond a reasonable doubt.

Of the 40 cases in which Burns was reversed, six were cases such as this; the sentences he handed down after convicting those defendants ranged from two years of probation to 27 years in prison. Four of these cases involved the state’s failure to provide basic paperwork proving defendants didn’t have a gun license or were required to register as sex offenders. Hooks and Wilson had one and zero such reversals in the past six years, respectively.

“The judge is not making the prosecution do its work that’s fundamental to a constitutional right to a fair trial,” Provenzano said after reviewing these reversals. “These cases are a commentary on basic judicial ability: This judge can’t tell when the prosecution hasn’t met its burden of proof.”

A prosecutorial career in a time of police misconduct

Before becoming a judge in 1998, Burns was a career prosecutor in the Cook County State’s Attorney’s Office. He started in 1981 and rose through the ranks to become a star trial lawyer,  handling high-profile prosecutions and supervising the felony review unit — a team of lawyers who decide whether police have enough evidence to charge arrestees with felonies. His time as a boss there coincided with one of the most violent periods in Chicago’s history, both in terms of crime and police brutality.

In 2017, the Chicago Tribune published allegations from a former subordinate that Burns pushed him to approve charges and “always wanted to give the detectives whatever they wanted.” The allegations came from Terence Johnson, one of the assistant state’s attorneys who, while working under Burns in 1994, accepted the confessions of the “Englewood Four” — Black teenagers who were wrongfully convicted of murder after detectives coerced them into confessing. In a 2012 interview, Johnson (whose prosecutorial career had ended a decade earlier when he was convicted of sexual abuse of a minor) told FBI agents investigating possible police misconduct in the case that detectives would call Burns directly when they felt Johnson was overscrutinizing the cases they’d brought to him. “The first thing Burns would ask Johnson is, ‘What’s wrong with the case,’” the FBI noted. “Burns would follow up by saying the detectives explained the case to him and that Johnson should move the case along.”

In a statement, Burns called Johnson’s allegations “singular and uncorroborated. … He is a terminated, discredited former ASA who is a convicted felon sex offender,” the judge added.

But the Englewood Four are not the only people who have alleged that they were tortured, beaten, coerced, or denied attorneys by police officers tied to disgraced commander Jon Burge during the period from 1994 to 1997 when Burns oversaw the felony review unit. The Invisible Institute has identified three dozen other people who made similar claims of police abuse during that time period, though Burns has not been personally accused of wrongdoing in those cases.

Burns was one of the felony review attorneys in three homicide cases between 1988 and 1991 in which defendants claimed they were abused by police.

In the earliest of these cases identified by Injustice Watch, in 1988, Burns approved murder charges against Grayland Johnson, who later claimed that detectives beat him, suffocated him with a plastic bag, and hung him outside a window by his handcuffed hands. Johnson testified during the criminal proceedings against him and claimed in a civil lawsuit that he told Burns about the beating when the prosecutor arrived to speak to him at the Area 3 police station.

“He told me that he was here to take a statement. He would talk to the officers and see what he could do,” Johnson testified.

Johnson claimed that the torture continued after Burns left. Burns denied that anyone had threatened or coerced Johnson while he was present, and the trial judge denied Johnson’s motion to throw out his confession. Johnson was ultimately convicted and sentenced to death row, but his sentence was commuted by Gov. George Ryan in 2003. He went on to advocate for other police torture victims as part of a collective, calling themselves the Death Row 10. Johnson died in prison in 2012.

In 1991, Burns also was involved in approving murder charges in separate cases against two men, David Washington and Ivan Smith. Washington alleged in court documents that detectives pulled down his pants while he was handcuffed to a wall and threatened to electrocute his genitals, though Burns and another assistant state’s attorney testified that he never complained of any abuse. Washington died in prison in 2006.

Smith alleged in court documents that he was beaten by detectives who, along with Burns, came to extradite him from Tennessee. In 2016, the Illinois Torture Inquiry and Relief Commission found Smith’s allegations of abuse by the detectives credible and recommended the case for judicial review. His case is currently pending, and his attorney declined to comment.

Asked for comment about Johnson, Washington, and Smith’s allegations, Burns responded in a written statement that the cases “occurred approximately 30 years ago. They are stand-alone, uncorroborated accusations that have either been raised and dismissed by all reviewing courts or never raised on appeal.”

‘Very middle-of-the-road for 26th and California’

Injustice Watch spoke with eight defense attorneys and prosecutors who’ve had experience with Burns and other judges at the criminal courthouse at 26th and California.

“Folks don’t like Judge Burns because he’s a mean old guy,” one defense lawyer, who requested anonymity because he still represents clients before Burns, said with a chuckle. “But you can win in his room as a defendant. I have not found him to be unfair to defendants. … He’ll listen to arguments and read your motions and give real consideration to it.”

Another defense attorney called Burns “very middle-of-the-road for 26th and California.” A third noted that she’s had positive experiences with Burns despite his “grumpy” moods and that other defense lawyers she knows “love setting bench trials in front of him; he’s good on the facts and the law.” A former prosecutor said that Burns has “a low tolerance for fools in a state’s attorney suit or defense attorney’s suit” and added jokingly that “all my living and dead relatives will be encouraged to vote for him” for retention.

But several defense attorneys told Injustice Watch that they believe his history as a prosecutor has colored his performance as a judge.

“He’s essentially a state’s attorney who’s modified his outlook a bit but is pretty much still a state’s attorney,” said Stu Smith, a retired defense attorney. “In criminal cases it’s often the cops versus the people, and when that’s the case Burns is almost always on the side of the cops even if their stories strain credibility.”

While most of Burns’ appellate court reversals did not accuse him of bias or incompetence, a few seemed to support this assessment of a pro-state bent. Last year, two appellate judges reprimanded Burns for his “pronounced bias in favor of police testimony” in the case of Jason Conway. Despite finding that there was sufficient evidence to convict Conway, the judges said Burns gave undue weight to the testimony of a police officer who said that he identified Conway, who was accused in a shooting, after seeing him for five seconds from 150 feet away. The appellate court vacated Conway’s conviction and took the rare step of ordering that the case be reassigned to a different judge for a new trial. (A third appellate judge dissented, saying that his peers were taking Burns’ statements in court out of context and mischaracterizing “actual findings to find bias where none is evident.”) The state appealed, and the case is pending before the Illinois Supreme Court.

In 2018, the appellate court reprimanded Burns for allowing the prosecution to take a “rebuttal sucker punch” during the murder trial of Keith Middleton. During closing arguments, prosecutors suddenly showed the jury Middleton’s mugshot with a half-circle photoshopped over the bottom half of his face to illustrate what he might have looked like in a half ski mask, which they said he wore when he allegedly shot his girlfriend’s brother. The defense filed a motion for a mistrial, which Burns denied. The appellate court reversed that decision and sent the case back for a new trial, saying the photo was unfairly prejudicial.

And in 2017, two appellate judges said Burns’ 10-and-a-half-year prison sentence for Frank Allen, a man he convicted of burglary, was excessive. Allen was convicted of breaking the window of a truck parked outside a courthouse and stealing a hat and two packs of cigarettes — which he dropped as he ran away. “The trial court imposed a lengthy sentence that greatly exceeds the seriousness of the crime (or rather, the lack of seriousness),” Appellate Judge Michael B. Hyman wrote for the majority, reducing the sentence to the minimum six years.

Despite his record of reversals, since he was first elected judge, bar associations have always found Burns to be qualified for the bench. This year, the Illinois State Bar Association said nearly all interviewed attorneys “praised his knowledge of criminal law and the rules of evidence and procedure.”

In recent years, Burns also has received wide-ranging praise for his leadership of the Rehabilitative Alternative Probation program, a drug court that has been lauded by the National Association of Drug Court Professionals as “a shining example of how a combination of accountability and treatment can save lives, reunite families, and make the community safer.” The two-year probation program is for people convicted of nonviolent drug-related offenses who agree to abide by treatment protocol and other conditions set by the judge. Burns also was  recognized for his stewardship of this specialty court by the Illinois Association of Criminal Defense Lawyers.

Some of the people selected for the specialty court, known as RAP or (W)RAP for women, have both a mental illness and substance abuse diagnosis. Had she not been charged with murder, but instead a low-level, nonviolent crime, Kimberlynn Bolanos, with her history of mental health issues, troubled relationships, and drug use, may have been a candidate for Burns’ alternative court. As Burns noted in a statement to Injustice Watch about the (W)RAP court, women in the program “are often survivors of sexual trafficking or abuse, domestic violence survivors, have codependency and child-related issues in the justice system.”

But “problem-solving” courts like (W)RAP aren’t designed to accommodate defendants whose mental illness or substance use lead to the most tragic outcomes. Bolanos’ options are limited. If she succeeds in convincing Burns that she deserves a new evidentiary hearing that could upend her conviction, and if she wins at that hearing — both long shots — prosecutors could still choose to restart the case against her. If they do, she’ll once again face a decision of plea bargaining or taking her chances with a trial and, possibly, an even longer sentence.

Since Bolanos was first convicted, Illinois law has changed to recognize postpartum psychosis as a mitigating factor during sentencing. But it’s not clear how much Burns would be swayed by the diagnosis. In their reversal, the appellate court noted that the judge “found she did not deserve a sentence close to the minimum” of 20 years.

The next hearing in Bolanos’ case is scheduled for Nov. 10, two days after the election.