It is unlikely that Officer Jason Van Dyke would have been charged with murder if there weren't video of him shooting Laquan McDonald sixteen times as he walked away. In large part, that's because fellow police officers appear to have lied to cover it up.
At least five officers backed Van Dyke's account, contradicted by video evidence, that McDonald had “moved or turned threateningly toward officers,” according to the Tribune. The paper reports that federal prosecutors are looking into officers who made the statements, and also those who prepared reports that made use of them. But the Police Department reportedly has not subjected the officers to any discipline. And none have apparently been prosecuted by Cook County State's Attorney Anita Alvarez's Office.
In an email, Alvarez's office declined to comment beyond a short statement that their office "conducted a very meticulous and thorough investigation into the shooting death of Laquan McDonald" with the FBI and U.S. Attorney's Office "resulting in the charge of First Degree Murder against Officer Van Dyke."
“It is a systematic problem,” says Craig Futterman, a University of Chicago Law School professor and civil rights attorney. “When there's a police shooting, or when there's an allegation of misconduct or brutality, the institutional response is to circle the wagons, denial, and cover up. And it's throughout the entire organization. It's not just sort of a code of silence” amongst officers but “really a phenomenon of narrative control and lying” from the top down.
Last month, Salon exposed how State's Attorney Alvarez had in February 2014 quietly overruled a recommendation to prosecute Chicago Police Officers Allyson Bogdalek and Dominick Catinella. The two officers admitted to lying in an effort to suppress evidence that would have proven beneficial to lawyers defending a man accused of robbing a liquor store in the Back of the Yards neighborhood and shooting the owner in the leg. Bogdalek, who lied in court testimony, alleged that her partner and numerous superiors urged her to deny that the evidence, the victim's failure to identify a photo of the suspect, existed.
The report fueled demands that Alvarez, under heavy criticism for her slowness in bringing charges against Officer Van Dyke, resign.
“I have been clear in not asking for her resignation,” says Cook County Commissioner John Fritchey, before going on to note that doing so is the clear preference expressed by many residents, and that Alvarez should consider their view. “The public across demographics is making their voice heard.”
In a statement, Alvarez’s office put the blame on judges and juries for her decision to overrule the recommendation to prosecute the lying cops.
“We face a reality here in Cook County, and around the country, that it is extremely difficult to convince judges or juries to convict police officers of misconduct in the line of duty,” emailed spokesperson Sally Daly.
Kim Foxx, Alvarez's lead opponent in the 2016 election, called that statement “disgusting" because it blamed "others for her failings. She’s the gatekeeper of justice.”
* * *
Alvarez does sometimes charge police with perjury.
In June, prosecutors announced rare charges against four police officers, three from Chicago and one from suburban Glenview. Like the Bogdalek case, which was not prosecuted, this one was pretty obvious: Video evidence contradicted the officers sworn testimony about a June 2013 search that recovered drugs—a large amount of marijuana and a modest portion of psychedelic mushrooms—in a car driven by a man named Joseph Sperling.
Steven Goldman, Sperling's lawyer, says prosecutors only dropped charges against his client after he produced a police dash-cam video that proved the officers' account was false, and a judge ordered the drug evidence suppressed.
Alvarez, critics charge, is motivated more by the vicissitudes of political exigency and media coverage than by any guiding principle. And she filed these perjury charges at just such a delicate moment, as Mick Dumke described at the Chicago Reader, as she rushed to bolster her reformer bona fides amidst mounting criticism that her law-and-order style was out of sync in the Black Lives Matter era.
Goldman is glad Alvarez's office brought the charges against the officers. But he doesn't understand why it took more than a year to do so.
“I'm not happy about it because I know if one of my witnesses or one of my clients got up on the stand and blatantly lied like that, you better believe they would have had charges filed against them, probably the following morning,” says Goldman.
Indeed, in 2011, Alvarez's office actually charged a witness named Willie Johnson with perjury after he recanted his testimony in a 1994 murder trial, which led to what the two defendants contend was their wrongful conviction. The charges sparked a widespread outcry—from former prosecutors and judges, and exonerated defendants—that the prosecution would create a chilling effect that discouraged people from coming forward to right past wrongs.
Alvarez defended charging the recanting witness, however, insisting that her “office does not take the decision to charge a perjury case lightly and this charge is brought in only very limited circumstances,” according to the Sun-Times.
The case of officers Allyson Bogdalek and Dominick Catinella, the two officers Alvarez refused to charge, apparently didn't qualify.
As for Johnson, he pleaded guilty. His 30-month sentence was later commuted by former Gov. Pat Quinn.
* * *
It is hard to find a defense or civil rights lawyer in Chicago who describes police lying as anything but routine. The lies are common in cases both ordinary and extraordinary, they say, and are made with the understanding that they can do so with impunity.
Indeed, one potential false statement that is now getting renewed attention involves Jason Van Dyke, the officer who killed Laquan McDonald. Van Dyke, it turns out, played an improper role in gathering information about a suspicious 2005 police shooting that killed a man named Emmanuel Lopez.
In April 2008, more than seven months before Alvarez took office, Van Dyke admitted in a deposition that he had hand-copied into a police report a typewritten account of the shooting incident provided to him by a detective. He was supposed to prepare it, of course, based on information he had gathered on his own.
Van Dyke, however, explained it as “just easier to do it that way instead of me asking, asking, asking, and have him answering, answering, answering.”
According to Terry Ekl, a lawyer suing the city on behalf of the Lopez family, “the facts of this case clearly show an attempted cover-up by the Chicago Police Department. In my opinion this is consistent with the way the department investigates the officer involved shootings.”
Van Dyke stated that he did not remember the identity of the detective who passed him the account. But he conceded it was unusual: he had never, he admitted, cut and pasted a police report before.
The police account that Van Dyke cut and pasted, according to the Tribune, is less than satisfying. For one, police stated that Officer Brian Rovano was pinned under Lopez's car when he fired his gun. Curiously, the only one of Rovano's bullets that hit Lopez was shown to have entered his back at a downward angle. And tire marks found on Rovano's pants that were supposed to prove that he was underneath the car? In reality, the Lopez family claims, the marks were demonstrably made by rolling a detached wheel over pants with no leg inside them.
Was Lopez, a 23-year old janitor, really trying to run Rovano over with his car? Or was that, as the Lopez family maintains, a fake story made up to justify executing him in a hail of 16 bullets?
Van Dyke's cut-and-paste response to Lopez killing is further evidence, says Ekl, that officers typically fabricate stories after police shootings to protect themselves and their colleagues.
“He was supposed to interview the officers involved in the shooting and then prepare a police report which reflected what he was told,” emails Ekl. “Instead he did not interview anyone and was told by some unknown officer what to put in his report.”
Ekl says that it is unclear whether the State's Attorney's Office ever looked into Van Dyke's role. Alvarez's office, after promising to respond to Salon questions, failed to do so despite multiple requests. “I can tell you that we cooperated in giving them everything that we had about the case,” says Ekl. “So it is likely that they had the transcript of Van Dyke's deposition.”
If Van Dyke was disciplined for his conduct, Ekl, a former prosecutor, never heard about it.
These failures to discipline or prosecute police for misconduct, say civil rights lawyers, sends a message that misconduct is okay. It also results in keeping officers who show a propensity for problem behavior, like Van Dyke, on the street. McDonald's killing shows how dangerous that can be.
* * *
Last month, Mayor Rahm Emanuel made an emotional promise to crack down on police lying.
“This problem is sometimes referred to as the Thin Blue Line," Emanuel said, according to his prepared remarks to aldermen. "Other times it is referred to as the code of silence. It is the tendency to ignore, deny or in some cases cover up the bad actions of a colleague or colleagues. No officer should be allowed to behave as if they are above the law just because they are responsible for upholding the law. Permitting and protecting even the smallest acts of abuse by a tiny fraction of our officers leads to a culture where extreme acts of abuse are more likely, just like what happened to Laquan McDonald."
Emanuel, whose office has not responded to repeated requests for comment, has not yet proposed any concrete ideas on how to do so.
Police lying, according to Chicago civil rights lawyers, is not just a matter of covering up for fellow officers' excessive use of force, but part and parcel of how day-to-day policing and prosecution takes place. And concern over official complicity in police perjury dates back long before Alvarez's tenure began in December 2008.
One telling case took place in 2004, when Eric Olsen and another officer in the Department's now-shuttered Special Operations Section claimed that police found a bag of cocaine on Raymundo Martinez outside the Southwest Side bar Caballo's. But a video, according to a 2007 Tribune article, portrayed something entirely different: More than two dozen officers had raided the bar, wantonly searching patrons.
Seven months later, according to the Tribune, a prosecutor viewed the video and moved to throw out the charges.
But it's unclear whether the Cook County State's Attorney investigated Olsen and other officers at the time, including another whose name was reportedly illegible on the police report. It was only in 2011 that Olsen pleaded guilty to federal charges as part of a major state-federal probe alleging rampant criminal activity, including robbery, within the unit.
Scott Levy, the defense attorney who represented Martinez, says that he does not believe that the State's Attorney's Office investigated the obvious police lies when they were first presented with the evidence in 2004. The video, says Levy, was surreptitiously recorded by the bar owner on a secret camera system after police thought they had disabled what was actually a dummy system. It was not only powerful evidence of an individual case of misconduct but early evidence that the city had a rogue unit on its hands.
It does not appear, he says, that the Cook County State's Attorney did anything about it.
“To my knowledge, no,” says Levy. “It was not looked into at that time.” According to Christopher Smith, a lawyer who brought a civil rights case over the raid, the existence of the video was first publicized in 2007 when he provided copies to the media and the U.S. Attorney's Office. He does not think that, at the time, local prosecutors had provided their federal counterparts with a copy of the incriminating videotape.
“I don't believe the State's Attorney had given them a copy,” says Smith.
Critics, pointing to the huge number of complaints filed against members of the unit, say that the Police Department and State's Attorney's Office long should have suspected misconduct amongst the officers instead but looked the other way.
The office of the U.S. Attorney for the Northern District of Illinois declined to discuss the case, and the Cook County State's Attorney did not respond to repeated requests for comment.
The State's Attorney's Office was then headed by Richard Devine, now an attorney at the firm Cozen O'Connor. He doesn't recall the Caballo's raid. But he rejects the charge that police lying is commonplace.
“Often, when there was an issue, it's a he-said-she-said kind of thing... My sense is that in an overwhelming majority, the police officers are the ones telling the truth,” says Devine. “Defense attorneys, public defenders, you know, they're advocates....they're taking an advocates' view of this and its to their advantage to have police cred as a general matter questioned.”
* * *
Alvarez has continued the longstanding practice of complicity in police perjury, says civil rights lawyer and former Cook County prosecutor Torreya Hamilton.
“She doesn't really do that with the police,” says Hamilton, when asked if Alvarez holds officers accountable for lying. “She really should. But she doesn't.”
Hamilton points to a civil rights case she has filed in federal court.
In November 2013, Emmanuel Williams was arrested after Officers John Okeefe and John Wrigley claim to have witnessed him selling drugs and holding a gun on the city's Southwest Side.
[jwplayer file="http://media.salon.com/2015/12/williamsfordenvir2.janetupadhye.12.23.2015_1.mp4" image="http://media.salon.com/2015/12/Screen-Shot-2015-12-23-at-11.16.53-AM.png"][/jwplayer]
A judge acquitted Williams, says Hamilton, after the defense lawyer produced surveillance footage that contradicted the police account. The video shows that Williams was detained, and his car searched, shortly after he drove up to his house, went inside, and then exited shortly thereafter.
“It was not disclosed before trial so the police officers came to court not knowing they were going to be caught,” says Hamilton. “And then the video was played.”
According to Hamilton, the "State's Attorney's Office did nothing to pursue perjury charges against the officers after they learned that they had provided false testimony during the trial—and in fact—continued to try and obtain a conviction against Mr. Williams even after the video revealed that nothing the officers said was true."
The Police Department confirms that both Okeefe and Wrigley remain on duty. It is unclear if the officers were investigated because neither the State's Attorney's Office nor the Independent Police Review Authority responded to repeated requests for comment.
Hamilton, after years in the State's Attorney's Office, spent time as a supervisor in the city's law department, fighting to defend officers against civil rights suits. In her twenty years working as a prosecutor, defending police, and later suing them in federal court, she has seen these same cookie cutter allegations over and over: two hand-to-hand transactions; a suspect going to a potato chip bag on the ground, or under a porch. Now, she wonders how many of them are lies.
“In order to win the war on drugs they're making stuff up,” says Hamilton.
Civil rights lawyers say that police supervisors, prosecutors and judges do little to detect, stop or punish rampant perjury. In the McDonald case, Van Dyke would likely have gotten away with lying about the shooting. So far, the five officers who apparently lied on his behalf have done so.
Fritchey, the Cook County Commissioner, says that “there are justifiable concerns that the State's Attorney has been either less than vigilant in her willingness to pursue police involved matters or consciously turning the other way.”
“It seems that every day another story is coming out that further establishes a pattern and practice in the State's Attorney's Office with respect to their handling of police involved matters,” he says, echoing the phraseology used by the Department of Justice's Civil Rights Division when it announced its investigation into the city's Police Department. “Nationally, people need to realize that the Laquan McDonald case is simply a tipping point in unleashing public frustration with the criminal justice system in Cook County.”