The city of Chicago is pushing back on the attempt by embattled Cook County State’s Attorney Kim Foxx to block lawyers for the city and several Chicago police officers from questioning two of her former top deputy prosecutors, to nail down precisely why Foxx’s office decided to reverse itself on pursuing a new trial for two men who are now suing because they claim they were coerced into confessing to a brutal sex assault and murder.
On Oct. 16, attorneys representing City Hall and a group of police officers replied to a motion from Foxx to quash the city’s and officers’ subpoena to question former Cook County First Assistant State’s Attorney Eric Sussman, and to stop them from questioning Mark Rotert, former head of Foxx’s Conviction Integrity Unit.
The CIU investigates past convictions to determine whether they were obtained legally.
Mark Rotert
| Cotsirilos Tighe Streicker Poulos & Campbell
The lawyers for the city and police officers say they are seeking to question the former prosecutors to shed light on the reasons why Foxx and her deputies did not contest the move to toss out the convictions and sentences of Derrell Fulton and Nevest Coleman in connection with the 1994 murder of Antwinica Bridgeman.
Both men were sentenced to life in prison for Bridgeman’s brutal sexual assault and murder, and they are now suing the city and the police officers for their alleged wrongful convictions.
The attorneys for the city and police officers said they are seeking to question Sussman and Rotert to discover “information to establish that the (Cook County State’s Attorney’s Office’s) final decisions” concerning Fulton’s and Coleman’s criminal convictions and sentences “were based on factors other than innocence.”
In this case, they said, they believe Foxx and her deputy prosecutors used the so-called Certificates of Innocence sought and obtained by Fulton and Coleman as “bargaining chips” to reduce the chance the two men would then turn around and sue Cook County prosecutors for their prosecution and conviction.
According to court documents, Bridgeman’s body was discovered in the basement of a building in the 900 block of W. 55th Street, on Chicago’s South Side. According to documents, she died from suffocation, after a piece of concrete was forced down her throat. She had also been sexually violated by a six-inch pipe, which was still inserted when her body was found, court documents said.
Both Fulton and Coleman signed confessions to playing a role in her death. However, they later steadfastly denied those confessions, saying investigating officers and at least one Cook County prosecutor coerced them into signing confessions. After the men served 20 years in prison, the Cook County CIU, then under former Cook County State’s Attorney Anita Alvarez, reopened the case in June 2016.
Foxx defeated Alvarez in the November 2016 election.
After analysis of DNA evidence from the murder scene matched DNA on the scene to another man, attorneys for Coleman and Fulton asked a Cook County judge to vacate the convictions and grant the men new trials.
However, while initially backing the attempt to retry Coleman and Fulton, Foxx’s office within two weeks reversed its position, and did not contest the court’s decision to grant the men Certificates of Innocence.
Coleman and Fulton then filed civil rights lawsuits against the officers who had investigated the case, as well as the city of Chicago, as their employer.
The defendants have contested the lawsuits in court.
They maintain the Certificates of Innocence were wrongly issued, and the men should have instead faced a new trial.
The police officers have noted that Rotert has stated in a recorded interview concerning the case that alternative explanations for Bridgeman’s assault and death struck him as “implausible,” while Coleman’s confession in the case did not appear to be “incredible.”
“The Coleman confession is – is not one that on its face appears to me to be incredible,” Rotert said in the interview for an article titled “The Hustle of Kim Foxx,” by reporter Steven Bogira for The Marshall Project in October 2018.
The defendants have noted Coleman was identified by others as the last person seen with Bridgeman before her death, and Bridgeman’s body was found two weeks later in the basement of Coleman’s home.
The police officers said Rotert’s recorded statements in the Marshall Project interview “explained why the DNA evidence does not exclude or exonerate” Fulton and Coleman, despite the Certificates of Innocence they were awarded by the court.
They said questioning of Rotert and Sussman will more fully explain why Foxx and her team decided to simply let the two men, who confessed to the crime, walk away, despite prosecutors’ misgivings about doing so.
In response to the subpoena of Sussman, Foxx’s office argued he should be shielded from questioning, because he was a “high ranking official” within Foxx’s office, and his communications and “mental impressions” of the deliberations and reasoning within Foxx’s office that led to vacating Coleman’s and Fulton’s convictions are protected by various privileges and legal doctrines.
Foxx argued any testimony from Sussman would not lead to any “admissible evidence relevant” to Coleman’s and Fulton’s lawsuits.
While the officers and the city have not yet subpoenaed Rotert, they said in their Oct. 16 filing that Foxx’s office has told them Foxx would similarly object to a similar attempt to question Rotert.
Neither Sussman nor Rotert work for Foxx any longer.
Sussman has been a partner at the Chicago office of the firm of Reed Smith LLP since 2018.
Rotert now works, of counsel, at the firm of Cotsirilos Tighe Streicker Poulos & Campbell Ltd., of Chicago.
Lawyers for the police officers and city said Foxx’s position regarding the subpoena is “untenable.”
They noted federal judges have allowed defendants in such wrongful conviction cases to question prosecutors before.
In this instance, they said information they have already collected, including emails listed in spreadsheets, but not the actual emails themselves, “confirm that Sussman and Rotert were deeply involved in the CIU investigation in this case, spoke regularly with (attorneys for Fulton and Coleman), spoke with the media about (the) cases, drafted public statements regarding the cases, drafted public statements regarding the outcome of the CIU investigation, and regularly appeared in court on behalf of the CCSAO in these matters.”
They noted Sussman and Rotert were part of at least 26 emails in November 2017 alone concerning the Coleman and Fulton convictions. Some of those emails involved attorneys for Coleman and Fulton, they said, including two emails with the subject line “Thank you on behalf of Nevest Coleman and family.”
Sussman is being represented in the subpoena-related action by an attorney from Foxx’s office.
The Cook County State’s Attorney’s Office is also representing Cook County in the cases.
Fulton is represented by attorney Kathleen T. Zellner, of Downers Grove.
Coleman is represented in his lawsuit by attorneys with the firm of Loevy & Loevy, of Chicago.
The police officer defendants are represented by the firm of Rock Fusco & Connelly, of Chicago.
The city of Chicago is represented by the Sotos Law Firm, of Chicago.
Voters will decide on Nov. 3 whether to reelect Foxx, a prominent Democrat, who is being challenged in the election by Republican former judge Pat O’Brien.