A group of Chicago Police officers being sued by a man who claims they tortured him into confessing to a double murder claim they cannot receive a fair hearing from a Biden-appointed judge who signed onto reports nearly 20 years ago before becoming a judge which blasted Chicago Police and Cook County prosecutors for covering up alleged torture amid a "conspiracy of silence," and which called on the city to no longer attempt to fight certain lawsuits brought by once convicted criminals who Chicago cops tortured them into confessing.
However, U.S. District Judge Jeffrey Cummings has brushed aside those concerns, refusing the officers' request to step aside from hearing the case.
Smith had sued the city of Chicago and police officers Phillip Cline, Daniel McWeeny, Steven Brownfield, William Pedersen, John Solecki and the families of William Higgins and Robert Rice, both of whom are deceased. All of the individual defendants served as detectives in the Chicago Police Department's Area 2 or Area 3 Headquarters, alongside former Chicago Police Commander Jon Burge and other detectives convicted or accused of allegedly using torture to extract criminal confessions from suspects.
The lawsuit was filed in 2021 in the U.S. District Court for the Northern District of Illinois.
In the lawsuit, Smith Jr. claims he was among those who was coerced through alleged abuse and beatings at the hands of detectives into confessing to the September 1987 double murder of 55-year-old Edith Yeager and her mother, 87-year-old Willie Bell Alexander. According to published reports, their throats had been slashed with a razor, and their home in the 300 block of W. 107th Street in Chicago's West Roseland neighborhood on the city's South Side.
According to reports, Smith Jr., then 38 years old, and his wife, the daughter of Edith Yeager, pulled up to the home around 5:30 a.m., while officers had begun their investigation. Smith was later arrested and taken to police headquarters, where he was allegedly interrogated and about 24 hours later, confessed to the crime.
However, Smith allegedly refused to sign the confession and allegedly told the court he had been beaten and choked until he agreed to confess using a script allegedly prepared by police.
Smith was ultimately convicted in 1990 and served three decades in prison, before his conviction was vacated and he was released in November 2020. He then filed suit, seeking payment for the alleged wrongful conviction and 30 years in prison.
While the case initially moved forward under a different judge, in 2023, the case was reassigned to Cummings after President Joe Biden appointed him to the post of district judge. Typically, when judges are appointed to the federal bench, cases are redistributed from other currently serving judges to the new judge, to share the workload among the district court's judges.
Attorneys for the police officers, including those from the Chicago-firms of Rock Fusco & Connelly and Reiter Burns, filed a motion last November asking Cummings to recuse himself from the case, and allow it to be reassigned to a different judge.
The recusal motion centered on actions Cummings took before becoming a judge, when he served as a partner at the Chicago plaintiffs' law firm of Miner Barnhill & Galland, of Chicago.
While still a lawyer in private practice, Cummings signed his name to reports in 2007 and 2008, prepared by other attorneys, researchers and criminal justice reform activists, which were critical of an investigation conducted by special Cook County State's Attorneys Edward Egan and Robert Boyle into Burge and other Area 2 and Area 3 detectives.
In the petition for recusal, the police officer defendants noted the reports "credited the testimony of the individuals making allegations of abuse over the testimony of the officers, and requested the City cease from defending officers under Burge's command."
The reports further "concluded there was a 'wealth of evidence establishing that there was a widespred and continuing cover-up of the torture scandal - a conspiracy of silence - implicating high officials of the City of Chicago [and] the Chicago Police Department..."
They noted one of the reports specifically was critical of the conclusion from Egan and Boyle that McWeeny - one of the defendants in the current case, as well - could not be prosecuted for his alleged participation in the acts alleged against Burge and his colleagues, as allegations against McWeeny allegedly fell outside the statute of limitations.
In the brief requesting Cummings' recusal, the officers and their lawyers wrote: "As a result of Your Honor's submission and endorsement of the two reports, Your Honor has obtained personal knowledge of disputed evidentiary facts concerning the proceeding which arise from an 'extrajudicial source'...
"Your Honor has already expressed opinions in an extrajudicial capacity about the veracity of individuals being subjected to wrongful conviction at the hands of Area 2 and 3 detectives, and the merits of the City defending lawsuits such as this. Thus, given the severity of such an allegation, a reasonable observer could find Your Honor unable to fairly and impartially preside over a case involving Defendant McWeeny, as well as the other Defendant Officers from Areas 2 and 3, making similar allegations," the officers' attorneys wrote in the motion.
More than six months since the motion was filed, Cummings filed his response, denying the recusal request.
In the ruling, Cummings said he did not author or assist in researching the reports, and did not have any personal knowledge of the reports, beyond their conclusions.
He said he was given a copy of the activists' draft report, and chose to sign his name to endorse their conclusions, among a long list of hundreds of other lawyers, politicians, community activists and others endorsing the reports conclusions criticizing Egan and Boyle.
"I was in private practice at the time and I agreed to add my name to the report because I believed that the police torture scandal in Chicago warranted further investigation," Cummings wrote in his ruling.
He further noted the reports were based entirely on "publicly available information" and did not specifically mention Robert Smith Jr. In this case, Cummings said, that means he did not have any "extrajudicial personal knowledge of disputed evidentiary facts" which should require his recusal from hearing Smith's lawsuit.
"It is not enough that the Reports provided me with some information regarding certain defendants’ conduct towards certain alleged victims of torture given that the Reports provide no information regarding defendants’ conduct toward Robert Smith Jr.," Cummings wrote.
He further asserted he did not believe his endorsements of the 2007 and 2008 reports would lead a "reasonable person" to conclude he harbored bias against either the police officer defendants or their attorneys, who are being paid by the city to defend the officers against Smith's complaint.
"... A judge's pre-bench commentary on a public policy issue does not warrant recusal even when that public policy is at issue in the case before the judge," Cummings wrote.
"... In sum: none of the examples cited by defendants - whether taken individually or cobbled together - would cause a reasonable, objective person to entertain a significant doubt that justice would be done in this case," the judge added.
Cummings further blasted the defendants for seeking his recusal, but not that of a magistrate judge, M. David Weisman, who had presided over the case in 2021. Before being appointed to the court by the District Court judges in Chicago in 2016, Weisman had worked as a federal prosecutor, and had led the prosecution of Burge.
Smith's attorneys had also opposed the motion to recuse, preferring Cummings remain on the case. They also pointed to the officers' decision not to ask Weisman to recuse.
"... Weisman interviewed numerous men who alleged that they suffered physical abuse and torture while at Area 2, prepared them for trial, and implicitly expressed his belief in their credibility by presenting their testimony to the jury in the Burge case and referencing them in his closing argument," Cummings wrote. "Yet, defendants question my impartiality even though I never met these men and have no non-public information regarding them simply because their accounts of physical abuse and torture are referenced within the 2007 Report and taken seriously."
And the judge said he believed the fact that nearly 17 years had passed since he endorsed the 2007 and 2008 reports should also weigh against recusal.
"Given my lack of involvement with the preparation of the 2007 and 2008 Reports, I do not believe that my endorsement of the Reports 16 to 17 years ago would cause a reasonable, objective person to entertain a significant doubt that justice would be done in this case and find that my recusal was warranted ... even if a reasonable person might have had a significant doubt proximate to the time the Reports were issued," Cummings wrote.
Smith's lawsuit remains pending before Judge Cummings in Chicago federal court.
Smith is represented by attorneys Stuart J. Chanen and Ariel Olstein, of the firm of Chanen & Olstein, of Lincolnwood.