Is This a Gag?
The city’s lawyers claim a gag order prevents them from discussing the strange deal they made to settle police torture lawsuits. There’s no order.
By Chicago Reader's John Conroy
September 28, 2007
Note: This story has been updated at the end since it was originally published.
A secret agreement that benefits only Mayor Daley. A mysterious side issue that stops a settlement in its tracks. Lawyers refusing to talk because of a gag order that nobody ordered. What’s going on? Why doesn’t the city settle with three victims of police torture and stop paying private attorneys public money to negotiate with them?
Two lawyers are at the heart of this story—Mara Georges, who’s the city’s corporation counsel, and Terrence Burns, an attorney with Dykema Gossett who was hired to defend the city against civil suits that accuse Chicago police officers of torture. Madison Hobley, Stanley Howard, Leroy Orange, and Aaron Patterson collectively spent more than half a century on death row before they were pardoned in 2003 by Governor George Ryan. They filed their suits not long after.
It became apparent during the settlement talks that the Hobley, Howard, and Orange cases would be the easiest to close, and the city focused on them. Last October a deal was at hand. The city agreed to pay a total of $14.8 million in damage claims and attorneys’ fees. And as the Reader revealed this summer (“The Meter’s Still Running and the Mayor’s Still Mum,” July 6), the plaintiffs agreed to accept four secret conditions written to protect Mayor Daley.
The plaintiffs would not name Mayor Richard Daley as a defendant “in a civil rights, obstruction of justice, and racketeering conspiracy . . . and they would not seek a finding of liability and damages from Daley for his alleged conspiratorial actions while serving as Cook County State’s Attorney.”
They wouldn’t pursue Daley’s deposition.
They wouldn’t criticize Daley in any public statements made in connection with the settlement.
These terms would remain secret and would not be put in the written agreement.
Daley was Cook County’s state’s attorney from 1980 to 1989. During that time Hobley, Orange, Howard, and Patterson were interrogated as murder suspects by detectives who either were serving or had served under Commander Jon Burge. By 1993 allegations of torture had risen to such a pitch that after a Police Board hearing Burge was thrown off the force. But those allegations first surfaced at a time when Daley could have looked into them, and his office did nothing.
According to the plaintiffs’ attorneys, and as we reported in July, the two sides came to terms last November 3. When they met on December 27 before Judge Marvin Aspen, who’d been mediating the talks, the city gave no indication of any problem. Assured that a settlement was at hand, Madison Hobley signed a contract to buy a house. Soon, however, Burns let it be known that a problem had arisen. This was an issue, he said, that had nothing directly to do with the three cases, but it needed to be resolved and he couldn’t tell the plaintiffs what it was. Presumably Burns told Judge Aspen. On January 11 Aspen informed the plaintiffs that the “minor” issue had been resolved and the paperwork could be completed in a matter of days.
But weeks passed. At a status hearing on February 13, Burns said the mysterious issue was still not resolved, there was no telling when it would be, the plaintiffs could do nothing to clear it up, and he had no idea when the city would sign the agreement.
An April 5 pleading by plaintiffs’ attorneys described the moment: “In the presence of a room full of lawyers and his clerks, [Aspen said] that the City’s conduct was ‘unprecedented’ in his many years of experience, and that while he would not say that City attorney Burns ‘acted in bad faith,’ he ‘could not say the same for his client.’” Aspen’s been a federal judge since 1979.
The plaintiffs have spent the last seven months arguing that as of last October 23, when they accepted the city’s $14.8 million offer, they and the city had a done deal, a “meeting of the minds” that under federal case law constitutes a binding and enforceable settlement agreement, whether or not it was signed. In their view the “secret” issue has no bearing on the agreement, not having arisen until two months after the parties came to terms.
But Burns and Georges, the lawyers for the city, say otherwise, and because they do, Hobley eventually had to forfeit his $2,500 deposit. Burns claims there’s no agreement because the City Council hasn’t approved it. Here’s what’s funny about that: the aldermen, to judge by recent rhetoric, are eager to settle the cases but can’t approve this agreement because Burns and Georges have never presented it to them.
Burns has argued that the negotiations failed but the city can’t explain why they failed because Judge Aspen—and magistrate judge Michael Mason, who also played a role—ordered that the negotiations be kept confidential. That sounds as though a judge imposed a gag order, but Mason’s deputy clerk and a former clerk for Aspen, on duty until last week, both have told the Reader that there wasn’t one.
According to a courthouse regular who’s familiar with Aspen’s mediation procedures, there was surely “an implicit understanding of confidentiality.” But such an understanding always exists when court-supervised settlements are being negotiated. And when the negotiations are over there’s no enforceable judicial order forbidding anyone from saying what went on in chambers. An implicit understanding falls far short of what Georges’s first deputy, Karen Seimetz, told the City Council Finance Committee on September 4. The committee was discussing a resolution submitted by aldermen Howard Brookins and Ed Smith that expressed outrage at the “estimated $10 million in legal fees accumulated defending both the city and the accused officers” and demanded that the payments cease and the Finance Committee swiftly approve a settlement in all outstanding cases. Seimetz responded that she was barred by a judicial order from discussing the settlement negotiations in the Hobley, Howard, and Orange cases. Brookins was furious. “We are the client,” he said. “She cannot be precluded from telling us what happened in court. She represents us.”
At that point committee chairman Edward Burke adjourned the public meeting in favor of a closed executive session of the Finance Committee. Brookins, not being a committee member, was kept outside. Georges herself spoke, but when the committee’s members emerged they said, according to the Chicago Tribune, that they couldn’t reveal what they’d heard, “citing warnings they received not to violate the court order.”
But there was no court order. Burns has not even consistently acted as if he thought there was. In his March 22 response to a plaintiff’s motion to enforce the settlement, Burns claimed to be operating under orders of confidentiality imposed by Aspen and Mason. But on the next page he apparently violated those orders—if they existed—by reporting what Aspen said and did not say during settlement discussions.
In the wake of the September 4 Finance Committee meeting, WBBM radio reported that Seimetz indicated one “holdout plaintiff” was holding up the settlement of the suits. But this plaintiff, Aaron Patterson, wasn’t even part of the Hobley, Orange, and Howard mediation so he wasn’t in much of a position to hold it up. There’s no apparent reason why the city can’t settle with Hobley, Orange, and Howard now and with Patterson later—indeed, in the wake of the September 4 meeting Alderman Toni Preckwinkle described the close-all-or-none approach as a “stupid legal strategy.”
For one thing, every day the Hobley, Orange, and Howard suits remain unsettled costs the city money—four private firms are being paid to represent the city and the individual defendants. And even when those suits, and Patterson’s too, are settled, the Burge civil-suit nightmare won’t be over. There’s now a fifth suit—it’s been filed by Darrell Cannon, the former El Rukn general released from prison this year who describes being tortured with a cattle prod in 1983.
Last fall, after terms were reached in the Hobley, Orange, and Howard suits, Judge Aspen held a mediation session in the Patterson case. Burns, Georges, Aspen, representatives of the city’s insurance company, and Patterson’s attorney, Frank Avila, were present. According to a source who’s spoken with two of the people who attended, Avila had sought assurances in advance from Burns that the negotiations would be swift (the Hobley, Orange, and Howard cases have taken years to settle) and a reasonable offer would be on the table from the get-go, but Avila got no reply. At the meeting, an offer of $1 million so infuriated Avila that at one point, when the judge wasn’t there, he said something on the order of “This is bullshit. Fuck you.” Given the timing of the meeting and the city’s stated desire to settle all four cases at once, it seems likely that the failure to settle with Patterson is Burns’s “mysterious issue.”
Avila won’t comment on what happened at that meeting, but he does believe the failure of Burns and Georges to settle with Patterson killed the deal in the other three cases. Avila says his client would accept around $5 million, maybe less if certain terms are met. One proposal would have Patterson, who recently received a 30-year prison sentence on federal drug and gun charges, shaving a million dollars off the settlement in exchange for a two-hour meeting with the mayor at which he would discuss prosecutorial misconduct and other matters. (Patterson met privately with Governor Ryan on Ryan’s last day in office, having been freed from death row the day before.)
Burns didn’t respond to questions submitted to him by the Reader last Friday asking why he seemed to be claiming there’d been a gag order when there hadn’t and why—if he thought there was one—he apparently violated it himself. Georges got the same questions and answered some of them. She said there was no written order but asserted that Judge Aspen had orally directed the parties to keep quiet and “the City has not violated the judge’s direction.”
As both Burns and Georges are supposed to represent the city’s interests, their negotiation of the secret clauses might give some aldermen pause. Did Burns and Georges intend to reveal those clauses to the council at some point? And who do Burns and Georges work for anyway? If a council member wanted to add his or her own secret clause, would Burns and Georges try to negotiate it? And presumably the plaintiffs didn’t accept the secret clauses just to be good sports—how much will those clauses cost the city?
Georges received stunningly bad reviews for her testimony in last year’s trial of Robert Sorich, the mayor’s longtime patronage chief. Georges testified that she was unaware of political influence in hiring. Jury foreman Jay Olshansky, a professor of public health at the University of Illinois at Chicago, told the Tribune she was the prosecution’s least credible witness, and federal judge David Coar, who presided over the trial, said, “I found the Mara Georges position in all of this incredible.”
But Mayor Daley likes her. After Sorich was convicted he was quoted in the Tribune saying Georges has been a “very, very good corporation counsel . . . full of integrity, honesty, dedication.”
New developments in the settlement saga: Georges and Burns were to be grilled at Wednesday’s meeting of the Finance Committee; instead the committee passed Alderman Ed Smith’s motion to table the issue for two weeks. Smith, who’d earlier sponsored a resolution urging a settlement and an end to funding the private law firms involved in the case, indicated that the landscape was likely to change quickly.
In the discussion of Smith’s motion it became apparent that mediation with Judge Aspen had resumed on Tuesday and that the city had made an offer. It must have been a good one—plaintiffs attorney Flint Taylor supported Smith’s motion.
As to the alleged gag order, Georges told the committee that she’d clarified with Aspen the day before that the parties were bound to silence, though no written order said so. But mediation had resumed that day, putting standard mediation procedures requiring confidentiality back into effect.