A federal judge has again denied an attempt by Cook County State’s Attorney Kim Foxx to block questioning of her former top deputy, as attorneys for the city of Chicago and a group of Chicago police officers seek to dig deeper into Foxx’s office’s decision to not seek a new trial for two men who had at one time confessed to helping murder a Chicago couple to help a woman kidnap their children.
The questioning of former Cook County First Assistant State’s Attorney Eric Sussman, however, will be limited, the judge ruled, to “prevent the disclosure of privileged material.”
On July 22, U.S. Magistrate Judge Sunil R. Harjani issued an order, giving lawyers representing the city and the Chicago police officers the chance to question Sussman under oath. Harjani ordered the deposition to take place by Aug. 30.
Eric Sussman
| Reed Smith LLP
The city and the officers are defending themselves against a lawsuit brought by attorneys for Gabriel Solache and Arturo Reyes.
Solache and Reyes were convicted and sentenced to prison, after they both confessed to assisting in the 1998 murders of Mariano and Jacinta Soto, who were stabbed to death in their home in Chicago. Prosecutors said the men allegedly helped kill the Sotos to help abduct their two children on behalf of Adriana Mejia, so Mejia could allegedly fulfill her dream of becoming a mother.
Over the years, Reyes and Solache both recanted their confessions, accusing Chicago police officers who investigated the murders of coercing them into confessing to the killings.
Reyes and Solache were eventually exonerated and freed when Foxx declined in 2017 to pursue new trials against either man, who were presented with so-called certificates of innocence by a Cook County court.
Foxx’s decision in the case came over the objections of police officers, and despite public assertions from Sussman and others within Foxx’s office that prosecutors still believed the evidence showed Reyes and Solache were guilty of the murders.
After Reyes and Solache were freed, attorneys from the firms of Loevy & Loevy, of Chicago, and the People’s Law Office, of Chicago, filed suit on their behalf against the city and the officers.
Mejia remains imprisoned, and had continuously asserted Reyes and Solache had helped her murder the Sotos and take their children. However, she abruptly changed her story at a deposition in 2019, as the officers sought to defend themselves against Reyes’ and Solache’s lawsuits. At that deposition, she refused to testify, citing the Fifth Amendment. A federal judge has since ruled the Fifth Amendment doesn’t apply to her in this case any longer, and ordered her to again testify under oath.
Lawyers for the officers have questioned in court filings whether the sudden alteration in Mejia’s willingness to testify may have been influenced by a fellow inmate, who is also represented by attorneys connected with the Loevy firm in a legal action against Chicago Police detective Reynaldo Guevara, one of the defendants also named in Reyes’ and Solache’s lawsuits.
A judge called such assertions a “confusing conspiracy theory.”
Lawyers for the city and the police officers have since sparred in court with Foxx over whether Sussman can be compelled to testify under oath, to help answer a key question in the case:
Why did Foxx simply walk away from a new trial for Reyes and Solache?
Foxx’s office sought to block the questioning of Sussman. The Cook County State’s Attorney’s Office asserted such questioning would trespass on prosecutors’ “deliberative process privilege” – essentially arguing the lawyers for the police officers and the city have no right to learn how Foxx and her deputies reached their decision to abandon efforts to put Reyes and Solache back in prison.
Judge Harjani, however, largely sided with the officers and the city on the question of whether Sussman should answer questions.
The judge “it is clear” that Sussman may know why Foxx’s office dismissed the cases against Reyes and Solache, adding “the reason is purportedly not actual innocence.”
The judge further declared the reasoning of Foxx, Sussman and her deputy prosecutors is “pertinent” to the lawsuits brought by Reyes and Solache against the officers and the city.
Harjani noted the tussle between the officers and Foxx is not the first time a federal court brushed back Foxx’s attempt to block questioning of Sussman over her office’s decision to abandon the prosecutions of people who had at one time confessed to heinous murders.
Foxx also walked away from the prosecution of Nevest Coleman and Derrell Fulton, who had denied their earlier confessions to the 1994 rape and murder of Antwinica Bridgeman. The two men served 20 years in prison, but then were released from prison over accusations their confessions had been improperly coerced by cops.
Like Reyes and Solache, Fulton and Coleman were released from prison, and then sued the city and police officers after Foxx did not challenge motions to vacate the men’s sentences in 2017.
In that case, attorneys for the city and a different group of Chicago police officers also sought to question Sussman over how Foxx’s office came to decide to allow Fulton and Coleman to go free.
And Judge Harjani similarly granted the chance to question Sussman under oath, along with another of Foxx’s former top deputy prosecutors.
“As the Court stated in connection with a similar motion in the Fulton and Coleman cases, ‘the relevance is to allow defendants the opportunity in discovery to explore evidence designed to rebut [the] potential inference of innocence,” Harjani wrote in his new order, on July 22.
Harjani said Sussman can also be questioned over “public statements he made at the post-conviction hearing,” though perhaps not his “personal feelings on the merits of” Solache’s and Reyes’ lawsuits.
The judge said Sussman’s statements about the case served to effectively waive Foxx’s later claims to “deliberative process privilege” on questions surrounding Foxx’s office’s decision to dismiss the cases - because the statements “appeared purposefully made in order to maintain the court’s – and the public’s – credibility and trust” in the Cook County State’s Attorney’s office.
Harjani, however, ruled that privilege should remain over questions surrounding Foxx’s office’s handling of the “certificates of innocence” given by the court to Reyes and Solache.
The judge also blocked the lawyers from questioning Sussman over any other criminal cases handled by Foxx’s office.
Foxx’s office is represented in the action by Assistant State’s Attorney Patrick D. Morris.
The Chicago officers and the city are represented by attorneys Eileen Rosen, and others with the firm of Rock Fusco & Connelly; Thomas Leinenweber, and others with the firm of Leinenweber Baroni & Daffada; Caroline Golden, and others with the Sotos Law Firm; and Daniel Noland, and others with the firm of Reiter Burns, all of Chicago.