CHICAGO — Cook County State’s Attorney Kim Foxx was elected in 2016 as a reform candidate, knocking out incumbent Anita Alvarez after harshly criticizing the way she handled charges in 17-year-old Laquan McDonald’s fatal shooting by on-duty Chicago police Officer Jason Van Dyke.
One major change could make sure police are truly being held accountable, Foxx said on the campaign trail: Special prosecutors — not Cook County assistant state’s attorneys — should decide whether to bring criminal charges against officers allegedly involved in such crimes.
“There is an inherent conflict of interest because of the intimate relationship between the prosecutor’s office and the police, and to suggest that doesn’t exist is disingenuous,” Foxx said at a campaign forum in January 2016.
Van Dyke has since been tried, convicted, sentenced and, as of this month, released from prison. But one of Foxx’s most prominent campaign promises has not come to pass.
Cook County prosecutors in her administration have never sought the appointment of a special prosecutor in a police shooting case. And in at least two instances, Cook County prosecutors have said they opposed bringing in outside attorneys to reinvestigate police shootings, saying their office had already reviewed the cases and determined charges were not appropriate.
While Van Dyke’s case was handled by a special prosecutor, that decision was made before Foxx took office. A group of activists petitioned to take the case out of Alvarez’s hands, and after Alvarez lost the Democratic primary to Foxx, she withdrew her opposition to their effort. Then-Kane County State’s Attorney Joseph McMahon was appointed to prosecute Van Dyke in Alvarez’s stead.
Ultimately, the barriers to getting special prosecutors in each police shooting case were logistical, rather than philosophical, Foxx told the Chicago Tribune. And procedures involving charging decisions in those cases have evolved in Cook County since the Alvarez administration, due to structural changes within Foxx’s office as well as changes in Illinois law.
When Foxx began her tenure, if prosecutors wanted a special prosecutor, they would have to petition a judge in each individual case and allege a legal conflict of interest; it would be up to the judge to decide whether the conflict existed and a special prosecutor could be appointed.
In appointing a special prosecutor, a judge must determine if other public prosecuting agencies are willing and able to act as special prosecutor before turning to private attorneys.
In an interview, Foxx told the Tribune that she envisioned the state attorney general’s office handling the charging decisions and potential prosecution of police-involved shootings, which is the practice in some other jurisdictions. But then-Attorney General Lisa Madigan’s administration said they did not have the resources to do so, Foxx said. After current Attorney General Kwame Raoul took office in 2019, his office said something similar, according to Foxx.
Annie Thompson, a spokesperson for Raoul’s office, said she could not confirm which conversations may have taken place, but said that their office gets referrals on “a variety of matters” — not just police shootings — when claims are made about a state’s attorney’s possible conflict of interest.
“Whether a true conflict of interest exists should be evaluated on a case-by-case basis, and the mere fact that a state’s attorney’s office has worked on matters with a police department does not mean an actual conflict exists (for instance, we work with the Chicago Police Department as well),” Thompson wrote in an email to the Tribune. “Our decision to take up a matter referred by a state’s attorney involves evaluating our capacity to handle the matter and determining whether an actual conflict of interest exists.”
A judge could also seek to appoint a prosecutor from another county, but those prosecutors “tend to be reluctant to engage in a police-involved shooting in another jurisdiction,” Foxx said. “These are incredibly difficult cases, complex cases.”
Another option would be appointing private attorneys on the taxpayer dime, and finding attorneys with the expertise to handle those complex investigations might be difficult, Foxx said.
“It’s not enough to say ‘all right, to ensure you that we are not in cahoots with police, we can let someone else do it,’ we still need a thorough investigation with lawyers who are trained in doing these types of investigations,” she said. “And right now we still don’t have a system in place that would give that confidence. We would still be waiting for someone to pick it up.”
Foxx said her office has been communicating with state legislators and Gov. J.B. Pritzker’s office in hopes of coming up with a “statewide solution” to ensuring that independent agencies examine cases of police violence. That could potentially include putting together a panel of qualified private attorneys who could be tapped as special prosecutors in those cases, she said.
In a statement, a spokesperson for Pritzker’s office said the governor “is open to all policy ideas to make the justice system work more fairly and ensure that all Illinoisans can believe in the system.”
“Our office has had preliminary conversations with the state’s attorney over the past several years, but we would require many more stakeholder conversations before settling on a recommended approach,” Jordan Abudayyeh wrote.
Meanwhile, internal policy changes and state law has changed the way Cook County prosecutors handle charging decisions in police shootings.
Since a new state law took effect in 2018, when the Cook County state’s attorney’s office declines to charge an officer in a shooting, the Illinois Office of the State’s Attorney Appellate Prosecutor takes a second look at the case to determine if they believe charges are necessary.
“If you don’t trust what I’m doing, there’s another body that can look at that work,” Foxx said, noting that her office pushed for the change in state law.
And in 2019, the team of attorneys who prosecute police misconduct was moved out of the normal chain of command in the special prosecutions bureau. Instead, the law enforcement accountability division reports directly to the first assistant state’s attorney, who is Foxx’s second-in-command. That way, prosecutors who rely on police to make their cases are more separate from the prosecutors deciding whether to bring charges against officers. LEAD is tasked with reviewing all claims of officer misconduct, not just shootings or fatalities.
A prosecutor from the accountability division is on call 24 hours a day to be notified of police shootings, and typically within 72 hours of an incident, prosecutors meet with COPA and representatives of other investigative agencies for a debriefing, said Assistant State’s Attorney Lynn McCarthy, who heads up LEAD.
Foxx acknowledged that the unit needs more staffers; as of this month, there were seven attorneys.
They also have brought in outside experts on use of force to consult on whether charges might be appropriate, Foxx said.
The LEAD website posts lengthy memos detailing why prosecutors declined to charge in a police-involved fatal shooting. Most of the cases also include the “second look” decision from the state’s attorney appellate prosecutor’s office, explaining why that agency agreed that charges were not appropriate. While some 40 memos are available online, the list is out of date; the most recent police shooting for which a memo is posted occurred in 2019.
Cook County prosecutors have brought some charges against police in on- and off-duty shootings in recent years; within the first few months of Foxx’s administration, Chicago police Officer Lowell Houser was charged with murder in a fatal off-duty shooting, and Amtrak police Officer LaRoyce Tankson faced murder charges in an on-duty fatal shooting. Houser was later found guilty of second-degree murder; Tankson was acquitted.
More recently, Chicago police Officer Melvina Bogard was charged last summer for an on-duty February 2020 shooting at the Grand Avenue Red Line station. Video of the lengthy and public struggle on the platform went viral; Bogard is awaiting trial on felony charges of aggravated battery and official misconduct.
And after nearly a year, the office has not yet announced a charging decision in perhaps the highest-profile police shooting since Laquan McDonald’s: the death of 13-year-old Adam Toledo last March.
Prosecutors declined to comment about specific cases, but noted that charging decisions in police shootings can take time in part because so many agencies are involved in the investigation, including the Civilian Office of Police Accountability, the Illinois State Police for forensic work, and the Chicago Police Department. The review also includes input from “families of the individuals involved in the shooting,” according to a statement from the office.
“It’s a lengthy process because of how thorough it is in working with multiple agencies,” McCarthy said. “It involves a lot of time to make sure we have all the materials from various agencies. … Because of the seriousness, obviously we’re going to be as thorough as possible.”
If Illinois were to take charging decisions out of the hands of local prosecutors altogether, they would be following in the footsteps of other jurisdictions around the country.
In New Jersey, all fatal police shootings are investigated by the state attorney general’s office. That office also must bring the results of each investigation to a grand jury, which will decide whether charges are appropriate.
The New York attorney general’s office also handles investigations and prosecutions of fatal police shootings in that state. As of last year, California law requires the state Department of Justice, not local prosecutors, to investigate and make prosecuting decisions after police fatally shoot an unarmed citizen.
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