*1
No. 1-22-0372
Opinion filed December 22, 2023
SIXTH DIVISION ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of Plaintiff-Appellee, ) Cook County.
)
) v. ) No. 00 CR 1357201
)
) ABDUL MALIK MUHAMMAD, ) Honorable
) Lawrence Flood, Defendant-Appellant. ) LeRoy K. Martin, Jr. ) Erica L. Reddick, ) Judges Presiding ______________________________________________________________________________ JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice C.A. Walker concurred in the judgment and opinion.
Justice Tailor concurred in part and dissented in part, with opinion.
OPINION For more than two decades, scores of criminal convictions in Chicago have been reversed due to confessions elicited through torture. This appeal involves allegations of a tortured confession and a conflict of interest by the special prosecutor appointed to probe it. Our determination of these two issues impacts the fairness, transparency, and effectiveness of the process established to redress a notorious injustice that has blemished the reputation of the Chicago Police Department and the overwhelming majority of officers who faithfully serve with honor.
¶ 2 Abdul Malik Muhammad, convicted of a 1999 shooting death, made allegations to the
Illinois Torture Inquiry and Relief Commission that police officers of Area 2 extracted a statement from him through torture. In 2018, the Commission supported Muhammad’s claim, which required Muhammad to move the circuit court to appoint a Special State’s Attorney. In similar cases, Robert J. Milan was named the Special State’s Attorney. Milan’s appointment followed the decision by the Cook County State’s Attorney’s Office that it could not be involved because an alleged torturer of Muhammad, Detective Michael McDermott, had worked for the State’s Attorney’s office as an investigator after he retired from the Chicago Police Department.
¶ 3 Milan later filed a motion to terminate the proceedings, arguing that Muhammad’s
“confession” fell outside the Act’s purview. The circuit court granted Milan’s motion without an evidentiary hearing.
¶ 4 Meantime, Muhammad’s counsel challenged Milan as having a conflict of interest like that
of the State’s Attorney’s Office and sought to rescind Milan’s appointment. The circuit court denied several attempts to remove him. Muhammad argues that the circuit court erred in dismissing his claim without an evidentiary
hearing and refusing to remove Milan due to an actual conflict of interest. We agree because Milan is in the unusual position of having to judge himself and those who were his subordinates. At the evidentiary hearing on remand, the circuit court should decide the merits of Muhammad’s claim that he was tortured into giving the statement as well as the possible Brady violation relating to the State’s alleged failure to disclose that Muhammad participated in multiple lineups in which several witnesses did not identify him.
¶ 7 While the panel is unanimous on the disрosition concerning the evidentiary hearing on
remand, there is disagreement on the second issue involving Milan’s conflict of interest. In light of all that Milan has disclosed in the record, we find that his staying on as special prosecutor violates Muhammad’s right to a prosecutor unencumbered by conflicting loyalties and potentially prejudicial inclinations.
¶ 8 The dissent, however, finds no grounds to remove Milan. This approach deprives Muhammad of his right to a prosecutor unencumbered by conflicting loyalties and potentially prejudicial inclinations, all of which cast doubt on the integrity and legitimacy of the entire process. Had Milan been forthcoming at the hearing on his appointment, the judge, with input from Muhammad’s counsel, would have been able to resolve his eligibility to serve. Instead, Milan remained silent, earning thousands of dollars in compensation and overseeing a case involving an underling at the State’s Attorney’s Office who Mohammad alleged had tortured him when he was a police officer. His actual conflict exposed, Milan cannot remain in place. As recognized almost 100 years ago, “No system of justice can rise above the ethics of those who administer it.” National Wickersham Commission on Law Observances and Law Enforcement, 1929. Accordingly, we reverse the circuit court’s orders denying Muhammad’s motions to rescind Milan’s appointment and remand for the appointment of a special prosecutor free of conflicts of interest. Background The State charged Muhammad with three counts of first-degree murder and two counts of
aggravated discharge of a firearm for the May 4, 1999, shooting death of Damone Mims. *4 Following conviction by a jury, Muhammad was sentenced to 50 years’ imprisonment. People v. Muhammad , No. 1-02-0053 (unpublished order under Supreme Court Rule 23). In 2014, Muhammad submitted a claim of torture to the Illinois Torture Inquiry and Relief
Commission (TIRC) under section 40/45 of the Act (775 ILCS 40/45 (West 2018)) alleging (i) he had been “interrogated for four days at Area 2 in a cell that did not have a bed, food, toilet, or water,” (ii) “Detective [Michael] McDermott threatened him, boasting that he ‘kn[ew] how to get [Muhammad] to confess without leaving a mark’ “ and “aggressively slammed a large casefile on the table, closed the interrogation room door and told his colleagues *** that he needed a moment alone with [Muhammad],” (iii) alone with Muhammad, McDermott used racial intimidation by telling him that “a jury would be more likely to believe white witnesses than a black defendant,” and (iv) during two of four lineups, Muhammad was “forcefully held” by the arm. Muhammad’s alleged statement was included in a police report prepared by Detective
McDermott. Detective Fidyk, McDermott’s partner, testified at trial that Muhammad made admissions during an interview after being Mirandized. According to Fidyk, Muhammad told him that “he was a Vice Lord. Member of the Vice Lord street gang from around 79th and Dobson. He denied any knowledge of the aggravated battery case report, which he was the victim, the one that was assigned to myself. He said he had no knowledge of the murder and knew that there was an arrest warrant for him regarding this case and he went to Washington.” On redirect, Fidyk testified that Muhammad “stated that he knew of the warrant for his arrest and he decided to move to Washington to turn his life around.”
¶ 13 The Commission investigated Muhammad’s claims. When questioned by the Commission
staff, Muhammad’s “allegations expanded, and he claimed he was actually beaten by McDermott with a case file on the head, denied food, forced to urinate on the floor and to defecate into a shirt in his interrogation room because he was denied bathroom use.” According to the Commission, Muhammad never claimed he had been abused at trial or on appeal. The Commission further stated, “[Muhammad]’s own attorney noted to [the Commission] that *** there was no ‘confession’ in the traditional sense *** only partially incriminating statements.” The Commission voted on July 18, 2018, to refer the matter for judicial review, though it noted “severe reservations about [Muhammad]’s credibility in regards to his claims of physical abuse.” Yet, the trial record indicates that Muhammad asserted an alibi defense and argued his statement collaborated with his alibi defense. At trial, Muhammad’s grandmother, Flora Walker, testified that Muhammad came to stay with her in Seattle on May 3, 1999, the Monday before Mother’s Day and the day before Mims’ murder, because he had been beaten up. She picked up her grandson at the airport between 12:15 and 1:00 p.m. In closing argument, defense counsel used Muhammad’s statement to Detective Fidyk to reinforce Muhammad’s mother’s testimony that Muhammad had left for Seattle long before police ever issued the warrant. At the jury instruction conference, defense counsel said Muhammad wanted to “turn this into a second-degree murder case.” Before closing arguments, defense counsel asked for a “second degree instruction because there is some evidence that my client was the victim of a beating” on May 1st. The State objected. The trial judge recognized that Muhammad may be entitled to instructions on inconsistent defenses but denied the request, finding “there is no testimony that he was acting in the heat of passion.”
¶ 16 The Commission concluded that even though Muhammad had not confessed to the murder,
the statement he made to Fidyk came within the Commission’s administrative rule of a “ ‘tortured confession’ includ[ing] any incriminating statement, vocalization, or gesture alleged by police or prosecutors to have been made by a convicted person that the convicted person alleges were a result of (or, if the convicted person denies making the statements, occurred shortly after) interrogation that the convicted persons claims included torture.” 20 Ill. Adm. 2000.10. The Commission further stated that the involvement of “[Jon] Burge Detective” McDermott, who had well-documented findings of abuse, and a possible Brady violation based on the State’s failure to disclose non-identifications of Muhammad after multiple lineups, amounted to “sufficient credible evidence of torture meriting judicial review.” In November 2018, Muhammad’s counsel moved to have the Office of the Special Prosecutor (OSP) and Robert Milan (collectively, “Milan”) appointed, given that the Cook County State’s Attorney’s Office (SAO) had concluded its involvement would be inappropriate as Detective McDermott worked for the State’s Attorney’s office as an investigator after he retired from the Chicago Police Department. Milan was appointed as the special prosecutor for the “Burge-related” cases in April 2017 and led the OSP after the previous special prosecutor resigned. The presiding judge of the criminal division appointed Milan on November 20, 2018. After his review, Milan concluded that the evidence against Muhammad was overwhelming and the OSP would continue to defend the conviction. After that, on August 20, 2020, Milan moved the circuit court to terminate the proceedings on the basis that Muhammad had not articulated a claim of torture under the Act. Milan took the position that Muhammad’s statement to Detective Fidyk did not amount to a “confession” as defined by Illinois law and required by *7 the Act. Milan believed that the Commission did not have the authority to expand the scope of its statutory mandate by adopting regulations defining a “confession” more broadly. For the Brady violation, Milan argued that the Act specifically limits the Commission’s authority to conduct inquiries into “claims of torture,” defined as “a claim on behalf of a living person convicted of a felony in Illinois asserting that he was tortured into confessing to the crime for which the person was convicted and the tortured confession was used to obtain the conviction and for which there is some credible evidence related to allegations of torture.” 775 ILCS 40/5(1) (West 2018). Relatedly, Milan argued that the Commission expressly found that Muhammad’s allegations of abuse were not credible but still referred the matter fоr judicial review. Shortly afterward, Muhammad filed a “Motion to Rescind” Milan’s appointment as the
special prosecutor, claiming: (i) Milan’s appointment was improper under the statute (55 ILCS 5/3-9008 (West 2018)); (ii) Milan suffered a disabling conflict of interest based on his service as the First Assistant State’s Attorney and Supervisor of Felony Review for the Cook County State’s Attorney’s Office; and (iii) even if no actual conflict of interest existed, Milan’s appointment created an appearance of impropriety. Milan responded that his appointment adhered to the statute under which he continued the ongoing work as the “Burge” special prosecutor after his predecessor retired. Further, he did not suffer from a conflict of interest based on his SAO service, where he was not personally involved in Muhammad’s case, and the attempts to have him removed smacked of “gamesmanship” since Muhammad waited two years to seek removal and did so after Milan filed the motion to terminate.
¶ 21 After hearing arguments on the motions, the presiding judge of the criminal division denied
Muhammad’s motion to rescind, finding Muhammad’s motion untimely and Milan’s appointment proper and consistent with the original order appointing a special prosecutor for the entire class of Burge cases.
¶ 22 Muhammad filed a motion to reconsider. On January 21, 2021, a different presiding judge
struck that motion, stating she would not reconsider her predecessor’s decision. Muhammad filed a motion for leave to file a petition for mandamus or prohibition or, in the alternative, a motion for supervisory order challenging the ruling. On March 5, 2021, the Supreme Court denied the motion. Muhammad v. Reddick , No. 126977. Muhammad filed a “new” motion to rescind Milan’s appointment, again arguing that
Milan’s positions at the SAO created a disabling conflict of interest requiring his disqualification under the governing statute (55 ILCS 5/3-9008 (West 2018)) and asserting that Milan could be a witness in the proceedings in Muhammad’s case based on a memorandum his counsel had recently obtained. The memorandum, sent to Milan in 1999 by an Assistant State’s Attorney in the felony review unit, regarded the alleged torture of a different defendant during the felony review process. Milan argued that the memorandum was irrelevant as it addressed a different murder committed by an unrelated offender and involved different detectives from a different Chicago police headquarters. The presiding judge of the criminal division rejected Muhammad’s arguments and denied the motion. Muhammad filed a Motion for Supervisory Order to which Milan objected. The Supreme
Court denied Muhammad’s motion on September 9, 2021. Muhammad v. Reddick , No, 127592. *9 ¶ 25 On November 5, 2021, Muhammad, in his response to the motion to terminate, argued that
his alleged statement to Detective Fidyk constituted аn inculpatory statement used by the prosecution to establish his consciousness of guilt and fell within the Commission’s definition of a confession. In addition, the court must give the Commission’s interpretation of the statute the force and effect of law. Finally, Milan waived challenging the propriety of the Commission’s referral for judicial review by waiting over two years to file the motion to terminate, and the Commission could rely on the alleged Brady violations as corroboration of his claims of abuse. Milan replied that Muhammad’s statement to Detective Fidyk did not amount to a
confession under Illinois law. Milan also argued (i) the Commission exceeded its statutory authority when it adopted an administrative rule defining a “claim of torture” broader than the definition adopted by the legislature, (ii) the Commission improperly referred the matter for judicial review where its formal disposition stated that Muhammad’s claims of abuse were not credible; (iii) the Commission exceeded its authority by relying on an alleged Brady violation unrelated to a torture claim as a basis for a referral for judicial review, which instead should be brought in a postconviction petition, and (iv) the Commission’s referral does not conform to the restrictions of the Act depriving the court of subject matter jurisdiction, a defect that cannot be waived or forfeited. The circuit court heard arguments on the State’s motion to terminate and took the matter
under advisement. On February 10, 2022, Muhammad sought leave to file an “amended” post- conviction petition, adding (i) the torture claims as well as the alleged Brady violation identified in the Commission’s referral, (ii) a claim of actual innocence based on the fact that his statement *10 was obtained through coercion by detectives, (iii) prosecutorial misconduct at trial, and (iv) ineffective assistance of his trial and appellate counsel. On March 11, 2022, the circuit court granted Milan’s motion to terminate. The circuit court
held it “[is] not bound by the conclusions made by the Commission in making a referral” and “does not review the actions of the Commission in making the referral to determine whether they were appropriate.” The court explained that it would not dismiss the referral “based upon the actions of the Commission in making the referral,” as Milan requested, because the judiciary and the Commission have distinct roles and responsibilities. The court stated that “[t]he Commission acts to determine whether there is enough evidence of torture to merit judicial review. The Court makes the final determination of whether the provisions of the statute have been met.” Then the circuit court determined that Muhammad’s statement to Detective Fidyk did not
involve a “confession” within the meaning of the Act:
“[T]he issue for the Court [] to decide at an evidentiary hearing is whether the defendant was tortured into confessing to the crime for which he was convicted, and the tortured confession was used to convict.
As the full statement entered into evidence in this particular case at trial, it states as follows: He said, meaning the defendant, he said he was a Vice Lord member, a member of the Vice Lords street gang from around 79th and Dotson. He denied any knowledge of the aggravated battery case report which he was the victim. He said he had no actual knowledge of the murder and that he knew there was an arrest warrant for him regarding the case, and he went to the State of Washington.
That is characterized in the referral as a confession. [Muhammad’s counsel] has argued in her motion that she believes that the detectives fabricated that statement, but that was characterized by the Commission as the confession.
The problem is that the statement is not a confession based upon case law. There are a number of cases throughout the years that have specifically defined ‘confession’ going back to the case of People versus Nitti, N-i-t-t-i, from 1924. In that case, the Court stated that a confession is a direct acknowledgment of guilt on the part of the accused, either by statements of the details of the crime or an admission of the ultimate facts.
***
Clearly, the statement entered at trial was not a confession. Looking at the full statement, it is an exculpatory -- it is exculpatory in nature.
[Muhammad] denies the murder and any knowledge of the facts prior to the murder. In the statement, he also makes certain admissions. He was a Vice Lord, he knew about the warrant issued for his arrest, and he went to the State of Washington to turn his life around. Such admissions do not equal a confession.
As the Illinois Supreme Court held in People versus Jeorgev, J-e-o-r-g-e-v, 38 Ill. 2d 165, a 1967 case, a confession must acknowledge all the elements of the crime and is a confession of guilt. In this case, the State argued in closing arguments at trial that his statement and his flight to Washington should be -- should show consciousness of guilt. The State argued it to counter the defendant’s alibi defense.
* * * Neither the trial transcript nor the Appellate Court affirmance of the case makes *12 reference to any confession being introduced at trial. Contrary to the Commission’s referral of a tortured confession used to convict the defendant in this matter, there’s no confession presented.”
¶ 30 The circuit court noted that the Commission “had serious concerns about [Muhammad’s]
credibility.” Regarding the alleged Brady violations, they should not bе incorporated into Muhammad’s torture claims because that would require an evidentiary hearing on the relevant part of the Commission’s referral.
¶ 31 The circuit court terminated the proceedings on the Commission’s referral and granted
Muhammad leave to file his successive postconviction petition.
¶ 32 Analysis
¶ 33 We note that the Attorney General of the State of Illinois and the Solicitor General, on behalf
of the Commission, filed an amicus curiae brief in support of Muhammad. Their brief raises essentially the same arguments as Muhammad, seeking to reverse the circuit court’s denial of his claims under the Act. The Act provides “an extraordinary procedure to investigate and determine factual claims
of torture related to allegations of torture [.]” 775 ILCS 40/10 (West 2020). An eight-member Commission was established to effectuate this purpose. 775 ILCS 40/15 (West 2020). When the Commission receives a claim of torture, it hears the evidence and votes on an appropriate disposition. 775 ILCS 40/45 (West 2020). If at least five of the eight members conclude by a preponderance of the evidence that there is sufficient evidence of torture, the Commission refers the matter to the circuit court for further review. 775 ILCS 40/50 (West 2020). On receipt, the circuit court proceeds to an evidentiary hearing unless it finds that the
Commission’s “threshold determination was itself against the manifest weight of the evidence.”
People v. Johnson
,
¶ 36 When considering a Commission referral, the court must determine whether the outcome of
the original suppression hearing would likely have been different if the officers who denied
torturing the defendant had been subject to impeachment based on newly discovered evidence
that those officers engaged in a pattern of abusive tactics in other cases.
People v. Smith
, 2022
IL (1st) 201256-U, ¶ ¶92, 95-96;
Johnson
, 2022 IL App (1st) 201371, ¶ 76 (“based on the
evidence adduced at the evidentiary hearing, the circuit court can independently make factual
findings as to whether torture actually occurred”);
cf. People v. Galvan
, 2019 IL App (1st)
170150, ¶ 68;
People v. Whirl
,
without an evidentiary hearing. Specifically, Muhammad claims that the court misstated its role in judicial review in not giving proper deference to the Commission as an administrative body or following the Commission’s regulatory definition of the term “tortured confession.” Milan argues that the circuit court properly terminated the proceedings without an evidentiary hearing because the undisputed facts demonstrated that Muhammad could not establish he was “tortured into confessing to the crime” as the Act required (775 ILCS 40/5(1) (West 2020)), where Muhammad’s statement to Detective Fidyk did not rise to the level of a “confession” under the plain meaning of the word. Under the Act, a “claim of torture” means an assertion on behalf of a person convicted in
Illinois that “he [or she] was tortured into confessing to the crime for which the person was convicted and the tortured confession was used to obtain the conviction and for which there is some credible evidence related to allegations of torture occurring.” (Emphasis added.) 775 ILCS 40/5(1) (West 2020). Both parties acknowledge that the Act does not define “tortured confession.” Muhammad contends that in denying him an evidentiary hearing because his statement to
Detective Fidyk did not amount to a confession, the court failed to consider the definition of
“tortured confession” the Commission adopted or how it applied to the statement he made to
Detective Fidyk. 20 Ill. Adm. Code. § 2000.10. The Commission defined a “tortured
confession” as “any incriminating statement * * * that the convicted person alleges [was] the
result of [an] interrogation that the convicted person claims included torture.” 20 Ill. Adm.
Code. § 2000.10; see
People v. Bonutti
,
¶ 41 Milan responds that the court’s definition of confession adopted the meaning of
“confession” found repeatedly in Illinois caselaw. Milan further argues that the Commission’s definition of “tortured confession,” which includes “incriminating statements,” exceeds the power granted the Commission because the meaning of “confession” as used in the Act is unambiguous.
¶ 42 Standard of Review
¶ 43 When reviewing a circuit court’s decision on a Commission referral, we employ a different
standard of review for issues of law and fact.
People v. Tyler
,
to the legislature’s intent. People v. Reese , 2017 IL 120011, ¶ 30. The statutory language provides the best indication of legislative intent. Reese , 2017 IL 120011, ¶ 30. “When the meaning of a statute is not clearly expressed in the statutory language, a court may look beyond the language [used] and consider the purpose behind the law and the evils the law was designed to remedy. When the language of an enactment is clear, it will be given effect without resort to *16 other interpretative aids.” (Internal citations omitted.). Petersen v. Wallach , 198 Ill. 2d 439, 444-45 (2002).
¶ 46 Illinois law has long provided that an administrative agency is a “creature of statute” with
“no general or common law powers.”
Goral v. Dart
,
felony in Illinois asserting that he was tortured into
confessing to a crime
for which the person
was convicted and the tortured
confession
was used to obtain the conviction and for which there
is some credible evidence related to the allegations of torture.” (Emphasis added.) 775 ILCS
40/5(1) (West 2020). As a result of the rule-making authority granted by the General Assembly
*17
(
Hadley
,
¶ 49 The Commission defined “torture” as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for the purpose of obtaining from that
person a confession to a crime.” 20 Ill. Adm. Code. § 2000.10. It defined “tortured confession”
as “any incriminating statement, vocalization or gesture alleged by police or prosecutors to have
been made by a convicted person that the convicted person alleges [was] a result of (or, if the
convicted person denies making the statements, occurred shortly after) [an] interrogation that
the convicted person claims included torture.” 20 Ill. Adm. Code. § 2000.10. The Commission’s
definition of “tortured confession” goes beyond a confession as Illinois reviewing courts have
historically understood the term and expressly encompasses a statement short of a confession.
We defer to an agency’s interpretation when the statute is ambiguous.
Boaden v. Department
of Law Enforcement
,
¶ 52 Nevertheless, we must consider the context in which “confession” is used in the Act.
Muhammad and the Commission argue that the law has “evolved” and “confession,” as used in “tortured confession,” encompasses all incriminating statements. In support, they cite section 5/114-11 of the Code of Criminal Procedure, which has been recognized as the proper pretrial mechanism for challenging the admissibility of all statements by a defendant, regardless of whether they correspond to a “confession.” 725 ILCS 5/114-11 (West 2020). Section 5/114-11 provides that “[p]rior to the trial of any criminal case a defendant may move to suppress as evidence any confession given by him on the ground that it was not voluntary,” and employs “confession” repeatedly in the statute. Id . (emphasis added.).
¶ 53 Our supreme court has held that under section 114-11, “the word ‘confession’ must be read
to include both inculpatory and exculpatory statements,” thereby embracing the then-new
constitutional standards in
Miranda v. Arizona
,
is at least ambiguous. Milan acknowledges Costa expanded the definition of “confession” under section 114-11
but suggests that no constitutional mandate exists to construe the Act beyond its plain and
*19
unambiguous language. Milan points to
People v. Georgev
,
¶ 56 In Georgev , the defendant claimed his statements should not have been admitted into
evidence because the State failed to provide him the writing of the oral statements he made and,
whether his oral statements were reduced to a writing or not, the State had to give him the names
and addresses of persons рresent when he made the statements.
Georgev
,
“Confessions must be distinguished from admissions against interest. Jones on Evidence, 5th Ed., sec. 398 states: ‘* * * As the terminology is used in criminal law, a ‘confession’ must be distinguished from an ‘admission’ of lesser import * * *. A confession out of court or an extrajudicial confession is comprehensive in its scope, * * * in that it acknowledges all of the elements of the crime and, therefore, is a confession of guilt * * *. A verbal (that is, expressed in words, oral or written) admission in criminal law, as generally understood, is different from a confession in that it is not an acknowledgment of guilt but is a statement having evidentiary value in proof of an element of the offense charged.” Id. at 175. The court found that the “statements of the defendant here were admissions against interest and not confessions” and, given the spontaneity of the statement and circumstances under which the statement was made, “there [was] nothing to suggest that the admission by the defendant was not a spontaneous and voluntary one and nothing to suggest that [the sheriff] devised any stratagem to induce it.” Id. at 176. So, the trial court did not err. Id. In Lefler , the defendant father’s infant daughter died with a skull fracture, extensive brain
injury, and rib injuries.
Lefler
, 38 Ill. 2d at 218. The defendant admitted to shaking and
squeezing his daughter to get her to stop crying, and he could have broken her ribs in the process.
Defendant was convicted of involuntary manslaughter.
Id
. at 222. The main issue on appeal was
whether the defendant’s statements that he “squeezed her” and “wanted her to stop crying”
amounted to admissions for which the voluntariness needed to be determined.
Id
. at 220-21.
Our supreme court acknowledged that “the statements of the defendant were not in the strict
sense of the word confessions to the crime of murder, [but] it is apparent that they were not
entirely exculpatory and that his admissions that he squeezed the child to keep her from crying
were incriminating.” The court found consistent with its holding in
People v. Hiller
, 7 Ill. 2d
313 (1955), the “voluntary character of any out-of-court statement must first be established
before the statement may be used, even for impeachment purposes.”
The court further found that “[o]ur adoption of this rule finds support in the decision of the
U.S. Supreme Court in
Miranda v. State of Arizona
” and “that the rule enunciated in these recent
decisions of our court and the U.S. Supreme Court, is the proper one and we adhere to it in this
case.” The court reversed and remanded for a new trial because the trial court erred by not
holding a preliminary hearing to determine the voluntariness of the defendant’s admissions.
Id
.
at 221. The court noted that, as stated in “
Georgev
, the distinction between confessions and
admissions is preserved by section 114-10 of the Code of Criminal Procedure in connection
with the furnishing of a list of witnesses to oral statements.” (Citations omitted.)
Id
.
Milan urges that
Costa
,
Georgv,
and
Lefler
read together stand for the proposition that a
“confession” is an acknowledgment of guilt and applies to all instances other than the limited
circumstances of permitting a pretrial hearing on a motion to suppress a confession under
*21
section 5/114-11. 725 ILCS 5/114-11 (West 2020). Milan contends that since
Costa
,
Georgv
,
and
Lefler,
our supreme court has used this definition of “confession” when addressing jury
instruction issues. See
People v. Floyd
,
not “confession.” Milan’s plucking of “confession” from the phrase “tortured confession”
divorces it from the context in which the Act uses the term. Second, although the terms
“confession” and “admission” had different definitions in the context of jury instructions in the
first edition of the pattern jury instructions (Illinois Pattern Jury Instructions, IPI Criminal, Nos.
3.07 and 3.06 (1st ed. 1961)), that is no longer true. In the past, the two separate jury instructions
required the parties to litigate whether a statement was a “strict confession of guilt or merely an
admission of an incriminating fact.”
People v. James
, 2017 IL App (1st) 143391, ¶ 125.
Regardless, the second edition of the pattern jury instructions, IPI Criminal Nos. 3.06 and 3.07
were consolidated into one instruction and employed the general term “statement” in place of
the more specific terms “confession” and “admission.” Illinois Pattern Jury Instructions,
Criminal, No. 3.06-3.07 (2d ed. 1981). These changes “avoided the complications that ensue
when a judge characterizes a statement,” eliminating this unnecessary risk of prejudice to the
defendant. IPI Criminal 2d No. 3.06-3.07, Committee Note;
James
,
¶ 62 Third, and most significantly, we are tasked with considering Muhammad’s torture claim
through the lens of whether the outcome of the suppression hearing would likely have been different given the new pattern and practice evidence. People v. Anderson , 2023 IL App (1st) 200462, ¶ 154. As Milan acknowledges, a “confession” is an acknowledgment of guilt and applies to all instances other than the limited circumstances of permitting a pretrial hearing on a motion to suppress a confession under section 5/114-11. 725 ILCS 5/114-11 (West 2020). As the Act requires us to consider whether the result of a suppression hearing would have been different, it necessarily follows that this is also a limited circumstance where the definition of “confession” as an acknowledgment of guilt would be inapplicable. This court has allowed the circuit court to simultaneously consider a petitioner’s claim under
the Act and request to suppress his or her statement under section 5/114-11. Wilson , 2019 IL App (1st) 181486, ¶ 151; Gibson , 2018 IL App (1st) 162177, ¶ 139 (trial court’s inquiry at suppression hearing significantly overlaps with inquiry at evidentiary hearing on police torture). Thus, the circuit court can consider whether Muhammad’s statement to Detective Fidyk should be suppressed at an evidentiary hearing on his torture claim. Given that possibility, the Act cannot be limited to a confession as an acknowledgment of guilt. Our analysis of when “confession” means “confession” and when it means something more
leads us to conclude that “confession” is ambiguous because reasonably well-informed persons
reading the Act could understand “confession” in more than one sense.
People v. Jameson
, 162
*23
Ill. 2d 282, 288 (1994) (statute ambiguous if reasonably well-informed persons can understand
it in two or more ways). Despite that, we do not impose our own construction on the statute as
would be necessary without an administrative interpretation.
Chevron, U.S.A., Inc v. Natural
Resources Defense Council, Inc
,
of its reasonableness.
Abrahamson v. Illinois Department of Professional Regulation
, 153 Ill.
2d 76, 97-98 (1992). Yet, if the Commission’s interpretation is permissible, that we might have
interpreted the statute differently does not justify reversal.
Church
,
¶ 66 Further support comes from legislation that made it a felony to “compel a confession or
information by force or threat.” 720 ILCS 5/12-7 (West 2020). Adopted well before the Commission was established, this offense forbids a person with the intent to “obtain a confession, statement or information regarding any offense” to knowingly threaten or inflict “bodily harm upon the person threatened or upon any other person.” 720 ILCS 5/12-7 (West 2020). Although separate from the Act, when considered in conjunction with the Act, this statutory offense shows an overall movement to rectify convictions based on prior statements made on account of torture and prevent future statements from being obtained as a result of force or threat of force. It would be odd that a police officer can be prosecuted for obtaining “information” by force from a suspect, but a convict could not obtain relief under the Act for a statement obtained by torture. We see no definitive indication that the legislature intended to distinguish between “confessions” obtained by torture, which acknowledge guilt, and other statements containing admissions or incriminating information.
¶ 67 Accordingly, we find that Muhammad’s statement to Detective Fidyk qualifies as a
“tortured confession” under the Commission’s interpretation of the Act. We reverse and remand
for the circuit court to conduct an evidentiary hearing to determine the merits of Muhammad’s
claim that he was tortured into giving the statement. We make no findings on the issue.
Muhammad’s Claimed
Brady
Violation
Muhammad next argues that the circuit court erred by failing to consider the Commission’s
finding of a possible
Brady
violation under which the State must disclose to the defense all
evidence favorable to defendant and material to either guilt or punishment.
Brady v. Maryland
,
Muhammad’s statement to Detective Fidyk was not a “confession,” as the Act uses that term. Concerning the Brady violation, the circuit court found,
“In essence, the Commission is making an alleged Brady violation part of the claim of torture to shore up the credibility of a person the Commission had grave reservations regarding his claim of coercion made approximately 14 years after he was convicted. Incorporating the Brady claim into the claim of torture--into the claim of the torture analysis would require an evidentiary hearing on the part of the referral without the appropriate opportunity for separate consideration as would be appropriate under the Post-Conviction Act or post-judgment proceeding under 2-1401.” So, the court heard no evidence regarding Muhammad’s claim of torture or the potential Brady violation. The Commission, in determining whether sufficient evidence of torture exists to refer a
claim for judicial review, may “use any measure provided in the Code of Civil Procedure and the Code of Criminal Procedure of 1963 to obtain information necessary to its inquiry.” 775 ILCS 40/40(d) (West 2020). And the Commission may “issue subpoenas or other process to compel the attendance of witnesses and the production of evidence, administer oaths, petition the Circuit Court of Cook County or of the original jurisdiction for enforcement of process or for other relief.” 775 ILCS 40/40(d) (West 2020). If, as the result of the Commission’s investigation, it discovers “[e]vidence of criminal acts, professional misconduct, or other *26 wrongdoing disclosed through formal inquiry or Commission proceedings,” that information “shall be referred to the appropriate authority” as well as to the convicted person or his counsel if the evidence is favorable. 775 ILCS 40/45(d) (2020).
¶ 72 Again, the Act establishes “an extraordinary procedure to investigate and determine factual
claims of torture related to allegations of torture.” 775 ILCS 40/10 (West 2020). To reiterate, a “claim of torture” is defined as an assertion that a person “was tortured into confessing to the crime for which the person was convicted and the tortured confession was used to obtain the conviction and for which there is some credible evidence related to allegations of torture.” 775 ILCS 40/5(1) (West 2020). In line with the Act’s purpose, when evaluating a Commission referral, the circuit court asks
whether the outcome of the original suppression hearing would likely have been different if the officers who denied torturing the defendant had been subject to impeachment based on newly discovered evidence that those officers engaged in a pattern of abusive tactics in other cases. Smith , 2022 IL (1st) 201256-U, ¶ ¶92, 95-96. In creating the Act, “the legislature clearly did not create a new form of postconviction relief.” Wilson , 2019 IL App (1st) 181486, ¶ 52. Ultimately, the trial court determines the merits of a torture claim. The “possible” Brady violation the Commission uncovered related to the State’s failure to
disclose that Muhammad participated in several lineups in which multiple witnesses did not identify him. We find this issue relevant to Muhammad’s claim of torture. As the Commission and circuit court observed, Muhammad did not bring his claim of torture until 14 years after Detective Fidyk interrogated him. In his motion to terminate the proceedings before the circuit court, Milan argued Muhammаd’s delay made it less credible; thus, we can safely assume that *27 the State will make the same argument. But, Muhammad claims that he repeatedly told his attorney before trial that the police coerced the statement from him, yet his attorney did not raise the issue with the trial court. The Commission determined this was plausible, stating “[t]hat valid lineup issues were not discovered and litigated by Muhammad’s attorney before trial makes it at least possible that Muhammad informed [his] attorney about any coercive interrogation tactics that were also not explored by trial.” Thus, the Commission concluded that there was enough evidence to merit the referral of Muhammad’s torture claim for an evidentiary hearing.
¶ 75 We cannot say that the Commission’s finding is against the manifest weight of the evidence.
See
Johnson
,
intended to work together, not against each other.
Gibson
,
claim, we reject Milan’s contention that the potential Brady violation is irrelevant to Muhammad’s torture claim and could not be raised under the Act.
¶ 78 Conflict Issues
¶ 79 The law is explicit: To ensure a prosecutor’s impartial judgment, a prosecutor with an actual
conflict of interest must be removed. The conflict, without more, creates the perception that bias, favoritism, or personal interests may influence the prosecutor, thereby compromising the integrity and fairness of the proceedings.
¶ 80 Milan contends no actual conflict of interest bars his review of Muhammad’s case, ignoring that as Supervisor of the Felony Review Unit in the Cook County’s State’s Attorney’s Office, he initiated the criminal prosecution of Muhammad years ago. Milan also ignores that at his appointment in this case, he stood mute, failing to disclose his relationship with Detective McDermott and violating due process and the rules of professional conduct. His actual conflict calls for the appointment of a new special prosecutor.
¶ 81 Where, as here, no factual dispute exists, we review de novo the legal issue of whether an
attorney operates under a conflict of interest. People v. Peterson , 2017 IL 120331, ¶ 101 (reviewing conflict of interest de novo where relevant facts not disputed).
¶ 82 Actual Conflict of Interest Muhammad contends Milan has a personal interest because he was “the direct supervisor
for the felony review unit and the felony trial attorneys at the time Muhammad was tortured and tried.” Muhammad contends Milan’s personal involvement undermines the proceedings “in ways known, unknown, and perhaps even unknowable,” “cast[ing] doubt on the procedures in place to ensure due process under the law.” Milan replies that Muhammad invited this error by asking for Milan’s appointment. The
record shows Muhammad moved to appoint Milan, who had already served as the special *29 prosecutor in other cases at the time the SAO determined it could not participate.
¶ 85 Generally, parties cannot complain of errors they induced the court to make and to which
they consented.
In re Detention of Swope
,
could only remove him for an “actual conflict of interest,” which he claims he does not have. Milan adds that an appearance of impropriety alone would not justify removal under the statute. Section 5/3-9008(a-10) governs the appointment of a special prosecutor and outlines the procedures:
“ The court on its own motion, or an interested person in a cause or proceeding, civil or *30 criminal, may file a petition alleging that the State’s Attorney has an actual conflict of interest in the cause or proceeding. The court shall consider the petition, any documents filed in response, and if necessary, grant a hearing to determine whether the State’s Attorney has an actual conflict of interest in the cause or proceeding. If the court finds that the petitioner has proven by sufficient facts and evidence that the State’s Attorney has an actual conflict of interest in a specific case, the court may appoint some competent attorney to prosecute or defend the cause or proceeding.” 55 ILCS 5/3-9008(a-10) (West 2020). Before this statute’s amendment in 2016, courts held the mere appearance of impropriety
warranted the removal of a prosecutor. See
, e.g., People v. VanderArk
, 2015 IL App (2d)
130790, ¶ 38 (citing pre-amended version). But the amendment added the language “actual
conflict of interest.” 55 ILCS 5/3-9008(a-10) (West 2020). Thus, one court has held that the
party seeking a special prosecutor must demonstrate an actual conflict of interest, not just the
appearance of impropriety.
In re Appointment of Special Prosecutor
,
Absent a statutory definition, this court has found that a State’s Attorney has “an actual conflict
of interest” if he or she “is interested in” the case as either (i) a private individual, or (ii) an
actual party to the action.
In re Appointment of a Special State’s Attorney on Behalf of Hanley
,
*31
¶ 90 The defendant must have more than speculation or suspicion. McCall , 334 Ill. App. 3d at
205 (motion to appoint special prosecutor denied where no pleaded facts showed improbability
state’s attorney would conduct biased investigation and prosecution). Consistent with this
decision, we have found an actual conflict of interest where a newly appointed state’s attorney
acted as defense counsel for the defendant.
People v. Courtney
,
an actual conflict of interest. But the parties do not dispute that section 5/3-9008 controls. And
we agree. Section 5/3-9008, as our courts interpret it, applies to removing a special prosecutor.
See
In re Appointment of Special State’s Attorney
,
shared understanding of the prosecutor’s role. “No attorney is more integral to the accusatory
process than a prosecutor who participates in a major adversary decision.”
Williams v.
Pennsylvania
,
Felony Review Unit in the Cook County’s State’s Attorney’s Office that charged Muhammad with first-degree murder. The nature of these proceedings shows Milan seeking to exercise that power again, holding over Muhammad the powers to dismiss the case, re-prosecute him, and terminate the proceedings. See 775 ILCS 40/50 (a),(b) (successful petitions may lead to “re- arraignment, retrial, custody, pretrial release, or discharge” and directing state’s attorney or *33 designee to represent state). The exercise of these powers dictates that Milan judge the validity of his original decision to prosecute. Thus, Milan possesses the improper ability to “judge” himself and his subordinates.
¶ 95 “The due process guarantee that ‘no man can be a judge in his own case’ would have little
substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision.” Williams , 579 U.S. at 9. In Williams , due process barred a sitting justice from ruling on a collateral appeal by the same defendant when decades earlier, as a prosecutor, the judge had authorized sеeking of the death penalty. Id. at 11. “The involvement of multiple actors and the passage of time [did] not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.” Id. Similarly, First Assistant State’s Attorney Milan’s exercise of the quasi-judicial power in
Muhammad’s underlying case precludes him from exercising, or seeking to exercise, the power of a special prosecutor. Due process does not tolerate the “risk of actual bias” that Milan presents. Id. at 8. Failing to replace Milan as special prosecutor would undermine the integrity of the court. In reaching this conclusion, we reject as baseless the dissent’s claim that Muhammad “[a]t
no point” argued Milan’s appointment violated his due process rights.
Infra
¶ 133. The due
process clause forms the cornerstone of his challenge, as Muhammad contended Milan’s
personal involvement in the prosecution undermined the integrity of these proceedings “in ways
known, unknown, and perhaps even unknowable” and thus “cast[ed] doubt on the procedures
*34
in place to ensure due process under the law.” See
Williams
,
¶ 98 Decades of torture by Chicago police took place before the courts and legislature acted. See
Kim D. Chanbonpin, Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission , 45 Loy. U. Chi. L. J. 1085, 1091-106 (2014) (canvassing this history and concluding “the crisis of police torture is more far-reaching than the ‘bad apples’ myth suggests”). That formal recognition culminated with the enactment of the Illinois Torture Inquiry and Relief Commission Act. 775 ILCS 40/1 (eff. Aug. 10, 2009); see State of Illinois Torture Inquiry and Relief Commission, https://www2.illinois.gov/sites/tirc/Pages/default.aspx; Leach v. Dep’t of Emp. Sec. , 2020 IL App (1st) 190299, ¶ 44 (“[i]nformation on websites and in public records are sufficiently reliable such that judicial notice may be taken” and collecting examples). The Act created “an extraordinary procedure to investigate and determine factual claims of
torture related to allegations of torture[.]” 775 ILCS 40/10 (West 2010). But Milan seeks to halt any inquiry, as the head of the office directing the response to
Muhammad’s allegations, even though all the reasons the SAO withdrew apply in every respect to Milan. The dissent would let Milan remain, even though the undisputed facts show that Milan directly supervised the felony review unit and felony trial attorneys when the State arrested, interrogated, charged, and tried Muhammad. Infra ¶ 175. By fiat, the dissent asserts Milan’s direct participation in Muhammad’s prior prosecution constitutes neither “actual facts” nor “actual evidence.” Infra ¶ 150. The dissent appears to require that Milan have personally *35 secreted the key to the interrogation room in which Muhammad alleges he remained for four days straight, thus forcing him to urinate and defecate on the floor. At the same time, the dissent acknowledges that prosecutors generally “are not disinterested parties to criminal prosecutions.” Infra ¶ 162.
¶ 101 The central conflict within the dissent, recognizing the significance of Muhammad’s claims
but downplaying the significance of Milan’s involvement, cannot hold. Nor should it. As
Muhammad rightly insists, when an “interested party” acts as a prosecutor, the resulting error
is “fundamental and pervasive.” (quoting
Young
,
evidence underscores the absurdity of Milan’s participation. The dissent insists that Milan was
no judge in his own case.
Infra
¶¶ 161-163. But it is no answer to the charge that Milan acts as
a judge in his own case to say he may proceed as he wishes, acting both as advocate and witness.
See
People v. Blue
,
opinion from a former senior counsel to the Administrator at the Illinois Attorney Registration and Disciplinary Commission. According to the opinion that he personally sought from a private attorney, Milan did not have a conflict of interest in serving as special prosecutor “in the Burge cases” even though “some of the cases may have been in the State’s Attorney’s system while you [Milan] were First Assistant or Chief Deputy.”
¶ 104 But this case cannot be classified as a “Burge case” since Burge was suspended in 1991 and
terminated in 1993, years before Muhammad’s case arose. Rather, this case involves allegations against Detective McDermott, who, after he retired from the police department, became an investigator for the SAO. Many TIRC decisions, including this one, concern alleged torturе by McDermott. https://tirc.aem- int.illinois.gov/search.html?q=mcDermott&contentType=everything; see Leach , 2020 IL App (1st) 190299, ¶ 44 (noting “[i]nformation on websites and in public records are sufficiently reliable such that judicial notice may be taken” and collecting examples).
¶ 105 Indeed, the opinion focuses on Rule 1.11(a) of the Illinois Rules of Professional Conduct.
That rule addresses “successive government and private employment,” which is not at all relevant here. When Milan became special prosecutor, he represented the same governmental client he did before, not a different client as contemplated by Rule 1.11(a). Tellingly, the conflict Muhammad alleges does not fit squarely within the type of conflicts
recognized in the rules. But, the concepts expressed in Rule 1.7(a)(2) support rescinding Milan’s appointment, as Muhammad’s expert witness explained in an affidavit to the circuit court. Rule 1.7 prohibits a lawyer from representing a client in a matter that “involves a concurrent conflict of interest.” Ill. R. Prof’l Conduct R. 1.7(a) (eff. Jan. 1, 2010). Subparagraph (a)(2), *37 states that concurrent conflict exists where “there is a significant risk that the representation of one or more clients will be materially limited *** by a personal interest of the lawyer.” Ill. R. Prof’l Conduct R. 1.7(a)(2) (eff. Jan. 1, 2010). Disqualification under the “material limitation conflict” provision of Rule 1.7(a)(2) requires a showing that “there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.” Ill. R. Prof’l Conduct 1.7(a)(2) cmt. 8 (eff. Jan. 1, 2010). Moreover, “[t]he lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.” Ill. R. Prof’l Conduct 1.7(a)(2) cmt. 10 (eff. Jan. 1, 2010). Milan’s representation of the State as a special prosecutor is materially limited by his
personal interests. Milan supervised felony review attorneys and trial attorneys when Muhammad was arrested, interrogated, charged, and tried. He was involved in interrogating felony suspects at that time and received at least one detailed report about the apparent police torture of a detained suspect in the felony review process. The Commission found sufficient factual support for Muhammad’s claims that he was tortured in police custody during the felony review process to warrant judicial examination. The Commission also found evidence that the police and SAO committed significant Brady violations—multiple witnesses at lineups were unable to identify Muhammad, and these were covered up and never disclosed. Regardless of whether Milan was personally involved in interrogating suspects or knew that
police officers obtained tortured confessions, he has a personal interest that constitutes a *38 conflict. Milan spent nearly 20 years at the SAO, eventually becoming First Assistant. Allegations of misconduct by SAO, particularly during his tenure as First Assistant, pose risks to SAO and Milan’s reputation. Bruce A. Green & Rebecca Roiphe, Rethinking Prosecutors’ Conflicts of Interest , 58 B.C. L. Rev. 463, 481 (2017) (prosecutors’ personal interest in their public image undermines their ability to view evidence objectively and dropping charges may be viewed as public concession that prosecutor previously made mistake). Moreover, under the Rules of Professional Conduct, Milan had an ethical duty to supervise
the attorneys under his watch. See Ill. R. Prof’l Conduct Rule 5.1(b) (eff. Jan. 1, 2010) (“lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer’s conduct conforms to these Rules”). Milan is subject to discipline for failing to make reasonable efforts to ensure those attorneys act ethically. Milan had a personal interest in avoiding an evidentiary hearing at which the evidence might have exposed that he violated rules of professional conduct. Muhammad has the burden of proving the misconduct he alleges that the police as well as
the SAO attorneys engaged in under Milan’s supervision, which could include violations of
Illinois Rule of Professional Conduct 4.1(a) (eff. Jan. 1, 2010) (false statements to third person;
presenting recreated lineup photos at trial, and falsely pretending to be public defender during
Muhammad’s interrogation); Rule 4.4(a) (eff. Jan. 1, 2010) (using “methods of obtaining
evidence that violate the legal rights of *** a person”); Rule 8.4 (eff. Jan. 1, 2010) (engaging
“in conduct involving dishonesty, fraud, deceit, or misrepresentation” or that is “prejudicial to
the administration of justice”). Illinois ethical rules and general principles of due process and
conflicts of interest mandate that a special prosecutor is not involved in the proceeding that will
*39
adjudicate claims in which he or she has a personal interest and disclose the facts and
circumstances surrounding an actual or potential conflict of interest as soon as he or she
becomes aware of it to the court and affected defendant(s). Ill. R. Prof’l Conduct R. 1.7(a) (eff.
Jan. 1, 2010);
Williams
,
¶ 112 Despite knowing of accusations concerning McDermott and McDermott’s presence in this
case as an alleged torturer, Milan not only continued working the case but, according to the record, resisted Muhammad’s counsel’s attempt to elicit the facts underlying Milan’s association with McDermott.
¶ 113 We agree with Muhammad that Milan labored under an actual conflict of interest. Milan’s
removal as special prosecutor fosters public confidence in the impartiality and integrity of our criminal judicial system. Thus, we need not address Muhammad’s alternative theories. The Dissent’s Missteps The dissent’s core contention is that “no actual facts [tie] Milan to Muhammad’s torture or subsequent prosecution.” Infra ¶ 150. For example, the dissent writes, “[N]othing in the record *** support[s] the majority’s assertion that Milan had a ‘relationship’ with McDermott ([ supra ] ¶ 80) or that McDermott’s position with the CCSAO aligned with or overlapped Milan’s work- related responsibilities ([ supra ] ¶ 100).” Infra ¶ 149. So, in the dissent’s view, it’s not relevant that Milan had supervisory authority over everyone in the office. Thus, by fiat, the dissent excuses Milan’s admitted participation in Muhammad’s prosecution as supervisor. Infra ¶ 149 (demanding proof “McDermott’s position with the CCSAO aligned with or overlapped Milan’s work-related responsibilities”). The dissent apparently insists on more evidence, something like *40 a jointly signed performance review by Milan of McDermott.
¶ 116 Drawing lines (here, around Milan) is a common, though mistaken, move in legal reasoning.
Yet the dissent goes further and mischaracterizes our opinion, the briefing before this court, and the applicable law. So, we take this moment to correct course.
¶ 117 The dissent’s multiple missteps begin with the standard of review. Like Muhammad’s
briefing, we formulate the key question before this court as one of law, and thus de novo review applies. See Supra ¶ 81 (citing Peterson , 2017 IL 120331, ¶ 101). The dissent disagrees, asserting that abuse of discretion standard applies. Infra ¶ 136.
¶ 118 But, like reviewing courts, circuit courts rule on legal questions from time to time. Even the
abuse of discretion standard may require this court to determine “ ‘the legal adequacy of [the]
way the [circuit] court reached its result.’ ”
Paul v. Gerald Adelman & Associates, Ltd.
, 223 Ill.
2d 85, 99 (2006) (quoting
People v. Ortega
,
disqualificatiоn under section 5/3-9008, given his admitted involvement in Muhammad’s prosecution. Answering this question requires us to recognize that this term of art, “actual conflict of interest,” has no statutory definition. Supra ¶ 89. Second, this question requires examining the full context in which this dispute arose—from an “extraordinary procedure to investigate and determine factual claims of torture related to allegations of torture[.]” 775 ILCS 40/10 (West 2010). Supra ¶¶ 98-99.
¶ 121 The dissent distorts all this, faulting us for “manufactur[ing] a due process theory.” Infra ¶
130. A fair reading refutes that kind of specious reasoning. As Muhammad contends the professional rules of conduct are essential to the just resolution of this issue, which Muhammad’s expert witness ably applied in an affidavit to the circuit court. And as critical is Muhammad’s insight that Milan’s involvement undermines the integrity of the proceedings “in ways known, unknown, and perhaps even unknowable,” “cast[ing] doubt on the procedures in place to ensure due process under the law.” Our analysis, which draws together insights from Muhammad and his expert, does not
transform the conflict of interest into anything other than what it is. We agree with the dissent that, “[u]nder the law[,] it does matter if Milan has a personal interest.” (Emphasis in original.) Infra ¶ 167. But unlike the dissent, we find critical Milan’s admitted involvement in Muhammad’s prosecution and relation with McDermott, whose employment at the SAO figured in the SAO’s conflict. We do not share the dissent’s farfetched concern that this opinion may require mass
disqualifications. Infra ¶ 164. For the reasons we gave, section 5/3-9008 dictates disqualification of prosecutors alleged to have committed misconduct against petitioners, and *42 the rules of professional conduct and principles of due process also require nothing less.
¶ 124 Conclusion ¶ 125 We reverse the circuit court’s order terminating proceedings under the Act and the circuit
court’s orders denying Muhammad’s motions to rescind Milan’s appointment. We remand for the appointment of a special prosecutor and an evidentiary hearing on Muhammad’s claim of torture referred to the circuit court by the TIRC.
¶ 126 We also direct the Clerk of the First Appellate Court to provide a copy of this opinion to the
Illinois Attorney Registration & Disciplinary Commission.
¶ 127 Reversed and remanded with instructions.
¶ 128 JUSTICE TAILOR, concurring in part and dissenting in part: I concur in the majority’s decision that Judge Lawrence Flood erred in (a) rejecting the
Commission’s definition of a “tortured confession” under the Illinois Torture Inquiry and Relief Commission Act (Act), 775 ILCS 40/1, et seq . (West 2018); (b) concluding that Muhammad’s statement was not a “tortured confession” under the Act; and (c) not providing Muhammad an evidentiary hearing on his claim that his statement was obtained through torture. However, I respectfully dissent from the majority’s decision that then Presiding Judge LeRoy Martin, Jr., and his successor, Presiding Judge Erica Reddick erred in denying Muhammad’s successive motions to rescind Robert Milan’s appointment as special prosecutor in this case. This record does not show that Milan harbors a conflict of interest, actual or otherwise, and the circuit court did not abuse its discretion in rejecting Muhammad’s successive bids to have Milan replaced. The majority removes Milan as special prosecutor finding that his appointment violates Muhammad’s due process rights. However, Muhammad did not advance a due process theory *43 below or on appeal. The majority manufactures a due process theory by quoting from the last page of Muhammad’s opening brief where he states that Milan should be removed as special prosecutor because his personal involvement in the Cook County State’s Attorney’s Office (CCSAO) as a “direct supervisor in the felony review unit and the felony trial attorneys at the time Muhammad was tortured and tried” undermines the integrity of the proceedings “in ways known, unknown, and perhaps even unknowable”, “cast[ing] doubt on the procedures in place to ensure due process under the law.” Supra ¶¶ 83, 97. These quotations come from the section of Muhammad’s brief arguing that Milan has a conflict of interest under Illinois Rule of Professional Conduct 5.1(b), which addresses the responsibility of a supervisor for the actions of his subordinate attorneys. There is no mention of due process in Muhammad’s reply brief. Muhammad does not cite a single due process case in any of his briefs. The case he does cite, Young v. U.S. ex rel. Vuitton et Fils S.A. , 481 U.S. 787 (1987), was not a due process case, although Justice Blackman in a special concurrence said he would go further than the majority and also find a due process violation when an interested party’s counsel is appointed to prosecute a criminal contempt arising out of a civil proceeding. Notably, no other justice joined Justice Blackman’s concurrence. Yet, somehow the majority concludes from the two quotations found on the last page of Muhammad’s brief that the “due process clause forms the cornerstone of [Muhammad’s] challenge” to Milan’s appointment as special prosecutor. Supra ¶ 97 (emphasis added.). Not so. As explained further below, the cornerstone, indeed the only stones, of Muhammad’s argument to remove Milan is that he has an actual conflict of interest under section 5/3-9008(a-10) of the Counties Code (55 ILCS 5/3-9008(a-20) (West 2020)) and that his appointment violates the Rules of Professional Conduct. *44 Muhammad advanced numerous arguments below in support of his successive motions to
have Milan removed as special prosecutor: (a) Milan’s initial аppointment as special prosecutor in 2017 violated section 5/3-9008 (a-20) because the court did not first seek out another public agency that would be willing to serve as special prosecutor before appointing Milan, a private practitioner; (b) the court did not enter a written order in this case appointing Milan as special prosecutor in violation of section 5/3-9008(c); (c) Milan harbored a per se conflict of interest because he worked at the Cook County State’s Attorney’s Office (CCSAO) under then State’s Attorney Richard Devine, who was found to have an actual conflict of interest in the Jon Burge cases because he represented Burge when in private practice; (d) Milan had an actual conflict of interest because of his supervisory role in the CCSAO where he was in the position to charge Muhammad, trained and supervised the assistant state’s attorneys who allegedly failed to disclose Brady material when he was supervisor of the Felony Review Unit of the CCSAO, and was First Assistant State’s Attorney when Detective McDermott, Muhammad’s alleged torturer, was hired by the CCSAO as an investigator; and (e) an appearance of impropriety existed because of Milan’s previous employment with the CCSAO and because Milan may be called as a witness. In his brief filed in this court, Muhammad argues, inter alia , that Milan has an actual conflict
of interest and his appointment as special prosecutor should be rescinded under section 5/3- 9008 of the Counties Code because: (a) he was the “Bureau Chief at the CCSAO at the very time Mr. Muhammad was being tortured and tried, which calls into question his impartiality;” (b) Milan’s role at the CCSAO included supervising the felony review division and the felony criminal trial attorneys, “the very [assistant state’s attorneys] that Mr. Muhammad claims helped *45 to frame him for the murder of Mr. Mims and whose misconduct the TIRC [Torture Inquiry and Relief Commission] specifically recommended for judicial examination;” and (c) Milan was “First Assistant at the CCSAO at the very time Mr. McDermott, a serial torturer and one of the detectives who tortured Mr. Muhammad, was hired by the CCSAO.” Muhammad also argues that Milan has a conflict of interest under Illinois Rules of Professional Conduct 1.7(a)(2) and 5.1(b) for the same reasons. Finally, Muhammad argues that Milan should be removed from this case because Milan will be called as witness in this case, resulting in an appearance of impropriety. At oral argument, Muhammad’s counsel stated she was only seeking to have Milan replaced on a prospective basis. At no point has Muhammad argued that Milan’s appointment as special prosecutor violated
his due process rights. Arguments not raised in an opening brief are “forfeited.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Our suprеme court has cautioned that “[a] reviewing court should exercise its power to raise unbriefed issues only sparingly, to avoid assuming a role of advocacy and being forced to speculate as to arguments the parties might have presented had the issues been raised.” Jackson v. Board of Election Commissioners of the City of Chicago , 2012 IL 111928, ¶¶ 33-34; People v. Givens , 237 Ill. 2d 311, 323-24 (2010). Our inquiry should be whether Milan suffers an actual conflict of interest under section 5/3-9008 (a-10) of the Counties Code (55 ILCS 5/3-9008 (a-10) (West 2020)) and the Illinois Rules of Professional Conduct, nothing further. Despite requesting review of then Presiding Judge Martin’s and Presiding Judge Reddick’s
rulings, Muhammad did not cite the standard of review that is applicable here. Citing
People v.
Peterson
,
review on Muhammad’s only claims, that Milan suffers an actual conflict of interest under
section 5/3-9008 and the Illinois Rules of Professional Conduct. Moreover, and contrary to the
majority’s conclusion, even where the facts are undisputed, the trial court still has discretion in
making certain decisions.
Farmer v. Cook Cty. State’s Attorney’s Office (In re Appointment of
Special Prosecutor)
,
“clearly gives the courts of this State the power to appoint special State’s attorneys under
some circumstances. To properly construe the statute and determine what will and what will
not present a proper case for such appointment clearly involves the exercise of judicial
power, and it is easy to see that different courts might differ as to the extent and character
*47
of the interest of the Attorney General or State’s attorney which would justify the
appointment of a special officеr under the statute.”
Lavin v. Board of Comm’rs
,
motions to rescind Milan’s appointment as special prosecutor under section 5/3-9008 is for an
abuse of discretion only.
Farmer
,
Special Prosecutor (OSP), which Milan led, filed a motion before Judge Flood to terminate the proceedings in Muhammad’s case. On November 16, 2020, Muhammad filed both a motion to strike the OSP’s motion to terminate proceedings and a motion to rescind Milan’s appointment as the special prosecutor on the basis that Milan had not been properly appointed pursuant to section 5/3-9008 (c) and (a-20), that Milan suffered from the same per se conflict of interest as prior State’s Attorney Richard Devine, and that Milan suffered from an “actual or apparent” conflict of interest based on his previous employment with the CCSAO. Milan filed an objection, arguing that he was properly appointed in the Burge cases pursuant to sections 5/3- *48 9008 (c) and (a-20) and that he did not suffer from a conflict of interest based on his previous positions with the CCSAO. Milan argued that he “did not personally prosecute Muhammad, made no decisions on the case nor had any involvement in the case whatsoever.” In addition, Milan argued that then Presiding Judge Martin had recently ruled that the CCSAO, including State’s Attorney Kim Foxx, “no longer has a conflict representing the State in Burge related matters” and therefore if Foxx and her office were not conflicted, neither was Milan. Muhammad filed a reply, arguing again that Milan was not properly appointed under sections 5/3-9008 (c) and (a-20) and that Milan suffered from a conflict of interest. At the hearing on Muhammad’s motion, Milan argued, “this is really a thinly veiled attempt
to forum shop prosecutors[,] the attorney of record in this case since the beginning, Candace Gorman, is unhappy with decisions I made on both the Muhammad case and the Donald Elam case, a case that was in front of your Honor.” Milan further argued:
“Let’s fast forward to September 14, 2018. Candace Gorman, the attorney of record on this case, files a motion with you, your Honor, with Judge Martin -- and me, by the way, notices me -- asking your Honor to assign the Muhammad case to a judge that never was an Assistant State’s Attorney. Notices me up on that because she recognized me as the special prosecutor on these cases since 2017.
On November 7, 2018, Candace Gorman files a notice of motion with you, your Honor, and with me--again, notices me on it--to appoint a special prosecutor.
On November 20th, 2018, you appointed our office in her presence. She’s in your courtroom. And on your half sheet, reflects your appointment of our office. No objection by Candace Gorman about how your-- your appointment of me was unperfected or that I *49 have some kind of conflict. Nothing. She wanted us on there.
Between November 20th, 2018 and today, I have more than a dozen emails from Attorney Candace Gorman to me and the O’Rourke law firm about the Muhammad case. And I am not going to go through all the dozens of them, your Honor, but I will note two of them.
January 2019, she reaches out to TIRC for more documentation and to me asking for more documentation, and TIRC emails both of us. The email goes to Candace Gorman and to me regarding the materials they are going to send over. There is no objection by [Ms.] Gorman about my serving as the special prosecutor. She wanted me.
May 2019, she files a Rule to Show Cause against the Chicago Police Department. She files it in front of Judge Flood and serves me with it in order to get documents from the Chicago Police Department. No objection to me. She actually serves me on it, wants me to help her on this.
What then happens? We exchange discovery over months on the Muhammad case. She calls for a meeting with me in person to talk about the case where she requests a reinvestigation of the Muhammad case. She hands me this (indicating). This is her request for new investigation of the conviction of Abdul-Malik Muhammad, pages and pages of documents that she asks me to review.
And based upon her request, I do so. I tell her that I am going to initiate a reinvestigation. Don’t confirm that I am going to do a whole investigation. I need to see if what she is telling me is it accurate and confirm what she does. So I begin to do so. I go through hundreds of pages of documents to start the reinvestigation.
As part of that, I interview Mr. Abdul-Malik Muhammad with her, okay. We do a Zoom interview of Mr. Muhammad. I go through the investigation. I get to the point where there is just too much evidence against him. All right. There is no way that I can continue the investigation and bill the County for an investigation that I know is going nowhere. And I make a determination to proceed against Mr. Muhammad. I inform [Ms.] Gorman of that, and then I filed a motion to terminate these proceedings in front of Judge Flood.
It is important to note that during the same period of time, from 2018 to 2020, I am serving as the special prosecutor on a case called Donald Elam, which is a Burge-related case, and which [Ms.] Gorman was the attorney of record the entire time in front of your Honor. At no time does she object to my-- does she claim that your appointment of me was unperfected or the appointment of my office was unperfected or that I had a conflict.” On December 1, 2020, Judge Martin, then Presiding Judge of the Criminal Division, denied Muhammad’s motion, finding that Milan’s appointment as special prosecutor in the “Burge cases” complied with section 5/3-9008(a-20), and that his appointment in this case likewise complied with section 5/3-9008(c). Judge Martin further found that:
“[T]his argument that you are raising about how the court went about appointing Mr. Milan in this particular matter, this issue -- I am just troubled by the fact that this issue is being raised now all these many years after this was -- this issue first appeared before the court. And, frankly, I don’t think that that’s — it’s appropriate, and it appears to me that -- as Mr. Milan has stated, that now this argument arises as Mr. Muhammad is dissatisfied with how the litigation has gone. And so, that-- that, I find to be-- I find that to be troubling.” *51 On January 7, 2021, Muhammad filed a motion to reconsider then Presiding Judge Martin’s order denying his motion to rescind. Therein, Muhammad again argued that Milan was not properly appointed pursuant to the statute and Milan’s background as an assistant State’s attorney prevented him from being named special prosecutor in this case. On January 18, 2021, Milan filed a motion to strike Muhammad’s motion to reconsider, asserting that Muhammad’s motion to remove him was untimely, Milan’s appointment was proper under the Illinois statute, and Milan did not suffer from a conflict of interest. Judge Reddick was named Presiding Judge of the Criminal Division shortly thereafter. On January 21, 2021, Presiding Judge Reddick struck Muhammad’s motion for reconsideration of then Presiding Judge Martin’s December 1, 2020, Order, finding that the motion stated no new grounds and therefore it would be improper “to reconsider the prior sitting judge’s decision.” Thereafter, on April 6, 2021, Muhammad filed a “new motion to rescind appointment” on
the grounds that Milan had an actual conflict, this time because Muhammad may call Milan as a witness. Muhammad stated that defense counsel had uncovered a memorandum addressed to Milan from an assistant state’s attorney in 1999 in another, unrelated case that arose almost two years prior to Muhammad’s arrest, describing visible injuries to a suspect’s face after arriving at the Area 4 police station. The suspect later told the assistant that two unidentified “men” came into the room and kicked him as he was sleeping on the floor. The suspect did not see the men. The assistant relayed this information to the “Deputy Supervisors in Felony Review.” Muhammad claimed that this memorandum made clear that “the practice within the CCSAO was to inform Mr. Milan in instances when police misconduct became known or apparent.” Milan filed an objection to Muhammad’s successive motion to disqualify on May 18, 2021. *52 On July 30, 2021, after hearing argument, Presiding Judge Reddick delivered a lengthy oral ruling denying Muhammad’s motion. She found that Milan’s initial appointment was proper and that Muhammad had not “shown sufficient facts and evidence that Milan has a conflict of interest in this case.” Presiding Judge Reddick’s oral ruling bears quoting at length because she, like then Presiding Judge Martin, comprehensively explained why Muhammad’s arguments lacked merit and thoughtfully and cogently exercised her discretion:
“Under the statute, the person bringing the motion, the petitioner in this case, must plead specific facts to show that the State’s Attorney is either sick, absent, unable to attend, or has a conflict of interest.
* * * Now, in this case, the Court specifically finds that the controlling authority is the current version of the statute found at 55 ILS -- ILCS 5/3-9008. And based on the interpretation of that version of the statute, the current version, it does seem to disavow the [appearance of impropriety] language that was cited. And I believe that[‘s] derived from the Lang decision, L-A-N-G, with respect to the issue of appearance of impropriety. * * *
The Court turns then to the issues of whether the petitioner has shown that Special Attorney Milan has a conflict of interest under the laws.
Now, the -- part of the claim is really that Milan’s previous positions as supervisor of the Felony Review Unit and First Assistant State’s Attorney create a conflict in the TIRC proceedings; that, specifically, Special Attorney Milan was the direct supervisor for the Felony Review Unit at the time that the petitioner’s case was proceeding; and that he was *53 not only responsible for the training of Felony Review Attorneys, but he was also responsible for their direct supervision. And the Court does clearly consider this claim under the statutory provision.
In doing so, the Court determines that, although Special Attorney Milan was the supervisor of the Felony Review Unit, and, again, the petitioner has detailed that he not only was the supervisor, but he had, in essence, responsibility for these attorneys who reported to him and that he was responsible for their direct supervision, the Court will consider that.
Under the standard of the statute as it currently exists, without evidence of Special Attorney Milan’s direct involvement, the Court does ultimately determine that the conflict of interest claim is not supported.
* * * So returning to the prior point with respect to the conflict, the Court did again consider and find that the petitioner has not shown that Attorney – Special Attorney Milan participated directly in or was at all involved in Petitioner’s case beyond his responsibility as the supervisor. And that without evidence of Attorney Milan’s direct involvement, the Petitioner’s claim of a conflict of interest is not supported, is not shown.
* * * But the Court concludes that even under the standard as it is discussed within the Relevant authority, it does not appear, again, at this point the petitioner has made an adequate showing.
Now, the Court does look to our Illinois Rules of Professional Conduct for *54 instruction as to how we determine. And if we look at Rule 5.1, that addresses supervising attorneys. And I’ll just read the formal title, The Responsibilities of Partners, Managers, and Supervisory Lawyers.
When you look at the language of that particular ethical rule for instruction, for guidance, it talks about the supervising attorney having to have actual knowledge to be held accountable for subordinate attorneys’ unethical actions. And I don’t think that’s instructive because in this instance, and, particularly, in the face of Attorney Milan’s denials during argument and offer to provide an affidavit, he has stated that he had no involvement or engagement in the case, direct or otherwise, during the time that he was in the office. * * *
However, once again, as we look at the actual controlling language of the law, as well as how it has been interpreted, it -- again, the petitioner has not made the showing under the law that at this time there has been a showing that Attorney Milan had any direct knowledge or participation. And there’s not a showing that he had any actual knowledge with respect to the actions of either the Felony Review State’s Attorneys who are alleged to have engaged in certain acts that caused concern and are the basis for claims that are currently pending before the Court or the Assistant State’s Attorneys who were assigned to the felony trial division who actually tried the case.
This is important because there were claims that there are police reports that were not tendered by the State’s Attorneys to the defense before trial, that there was specific information within the reports that several witnesses, and I believe there might have been five, were unable tо identify the petitioner during the police investigation at the time during *55 which he was held in question, that that information was not tendered to defense counsel or Petitioner Muhammad before trial. And that the significance of these actions by or inactions by either the Felony Review Assistants or the Assistant State’s Attorneys who actually tried the case, that those are matters over which Mr. Milan held some measure of responsibility.
But as the law and the governing provisions and as the Court considers them, to hold Special State’s Attorney Milan accountable without a showing that he had direct knowledge would, in essence, set a precedent that every managing or supervising attorney would be presumed to have actual knowledge of all subordinate attorneys’ conduct. And I don’t believe that’s the reach of the law at this point. And, again, I’m looking to ethical rules for guidance as I interpret how the Court should consider the claims here. I also do note that prior to Attorney Milan’s 2018 appointment as Special Prosecutor, that he sought and obtained an expert advisory opinion. This was from an individual named Stephanie, S-T-E-P-H-A-N-I-E, middle initial L, last name Stewart, S-T-E-W-A-R-T, who was senior counsel to the administrator of the ARDC. And this individual opined that Special Attorney Milan did not have a conflict of interest that would prohibit him from serving. And this was based on the finding that his supervisory role was too attenuated from [Detective McDermott] to create a conflict of interest. I further note, however, that petitioner also engaged the services of Professor Andrew, common spelling, Kent, K-E-N-T. And he provided an affidavit analyzing these very facts before the Court as well and reached an opposite conclusion.
He, in essence, determined that, excuse me, the conclusions of Attorney Stewart *56 * * *[f]ailed to directly address the concerns raised by the ethical rules regarding Rule 1.11 and, specifically, Rule 1.7, excuse me, the conflict of interest. And, ultimately, the conclusion of the petitioner’s expert is that Attorney Milan does have a personal interest, in essence, in ascertaining or upholding the work of the State’s Attorney’s Office because there is a significant risk or that there is a conflict of interest because -- and I’ll quote here. There is a significant risk that Milan’s representation of the People as a Special Prosecutor in this case will be materially limited by personal interest of Milan’s.
And it was explained in greater detail. And this was under Illinois Rule of Professional Conduct 1.7(a)(2).
Again, as the Court looks to the specific issues in this case that arise, the claim of a significant risk that he will be material[ly] limited, again, is nоt a sufficient showing under the language of the statute that there -- if he established that there is evidence that he has an actual conflict or per se conflict. Even as I look at the language for, again, the appearance of impropriety, at this stage, based on the information the Court has, I do ultimately conclude there has not been the showing, the requisite showing.
I do also want to make clear, however, that should additional evidence come forward showing a direct connection between Special Attorney Milan and the petitioner’s case, his direct involvement, his direct knowledge, that certainly it will be important that those matters are brought before the Court because then there would be a showing, and that is what is not present and what is necessary.” Presiding Judge Reddick then addressed Muhammad’s claim that Milan suffered from a
conflict of interest because Muhammad may potentially call him as a witness. Presiding Judge Reddick stated:
“And in this instance the petitioner has indicated its desire, as well as its intention, to call Special Attorney Milan as a witness with respect to discovering or learning his information about the procedures, about his supervision of the attorneys involved in the case back at that time. But, in essence, there really would still need to be a showing for the need to call Attorney Milan to testify at an evidentiary hearing.
The petitioner specifically alleged that Attorney Milan has important knowledge regarding the alleged prosecutorial and police misconduct. And that petitioner -- that counsel expects that once the petitioner is allowed to call Mr. Milan as a witness, he will be -- the petitioner would be entitled to full discovery, not only as to all the memos from Felony Review at the pertinent time, but also Mr. Milan’s knowledge of torture by the Chicago Police Department, the processes in place when confronted with evidence of that torture, and also the training to his subordinates on this crucial subject. Again, in the face of that, Attorney Milan stated that he has no personal knowledge of the circumstances of the petitioner’s case.
And in this instance, even given the wide reaching bases upon which the petitioner would seek to call Special Attorney Milan, that’s a hurdle that still has to be overcome. It is not a certainty that he would be called as a witness. There must be a showing that that is, therefore, necessary information for the matter to proceed.
In this instance it’s as if the petitioner -- and it is -- the petitioner is asking me to declare that because there might be a conflict I should disqualify him now. And I think it’s *58 putting thе cart before the horse. There has to be established that there is the conflict to have him removed. You can’t say there might be a conflict, so remove him.
At this point there has to be a showing, a sufficient showing, that there is enough of a conflict for that to occur. And I repeat again if there is that showing, this matter should be brought before the Court for the Court then to make these determinations.” Finally, Presiding Judge Reddick found that Muhammad forfeited his claim to have Milan removed as special prosecutor by failing to bring his motion until two years after Milan was appointed. She stated:
“But I do note that the petitioner has known about Special Attorney Milan’s appointment as the Special Prosecutor since the beginning stages of this TIRC petition, and that dates back to 2018. And I note that Judge Byrne had appointed Attorney Milan as Special Prosecutor back in 2017.
And in this instance the petitioner is the one who sought Special Attorney Milan’s appointment as Special Attorney for the petitioner’s matters. And after Special Attorney Milan became engaged with the matter, the discovery process happened, the initial investigation that Special Attorney Milan conducted, and the petitioner submitted to an interview with Attorney Milan in the presence of petitioner’s counsel. That only after these matters occurred and Special Attorney Milan announced that he would proceed with the prosecution, it was at that time that the initial motion to rescind occurred and then, ultimately, the new motion that is currently before the Court. * * * Now, petitioner’s counsel did explain to the Court that it was only after additional measures she took to obtain information did she become more fully aware of Special *59 Attorney Milan’s role as supervisor of the Felony Review Unit at the relevant time. But even giving consideration to that, the concern for the Court is the timing then of the motions to rescind while petitioner had knowledge of Special Attorney Milan’s roles within the State’s Attorney’s Office. And that only after the passage of almost two years, only after learning that petitioner – that Special Attorney Milan, who pursued the prosecution versus dismissing it, did then the petition to rescind surface.
And I do think under the language of the term forfeiture, that failure to raise the issue
in a timely manner really speaks to the concern about it being raised now.”
Turning to the law governing this dispute, article VI, section 19, of the Illinois Constitution
provides for the election of a State’s Attorney in each county. Ill. Const. 1970, art. VI, § 19.
The powers and duties of a State’s Attorney include commencing and prosecuting all аctions,
civil and criminal, in which the people of the State may be concerned. 55 ILCS 5/3-9005(a)(1)
(West 2020). A special prosecutor may be appointed when the State’s Attorney suffers from an
actual conflict of interest.
Id
. § 5/3-9008 (a-10). An actual conflict of interest occurs when the
State’s Attorney “is interested in” the case as either (1) a private individual, or (2) an actual
party to the action.
In re Appointment of a Special State’s Attorney on Behalf of Hanley
, 2020
IL App (2d) 190845, ¶ 17. Section 5/3-9008 also applies to the removal of a special prosecutor.
In re Appointment of Special State’s Attorney
,
establish that a prosecutor harbors an actual conflict of interest under section 5/3-9008. Under
the current version of section 5/3-9008, which was amended in 2016 to expressly add the “actual
conflict of interest” language, the party seeking a special prosecutor must demonstrate an actual
conflict of interest, not merely the appearance of impropriety.
Farmer
, 2019 IL App (1st)
173173, ¶¶ 33-39. Therefore, the line of cases under the pre-amended version of the statute that
holds that the appearance of impropriety is sufficient to remove a prosecutor no longer apply.
See e.g. People v. VanderArk
,
prosecutor has an actual conflict of interest in a specific case requiring the appointment of a
new special prosecutor. 55 ILCS 5/3-9008 (a-10) (West 2020);
Arrington
,
remove a prosecutor on the basis that he has a personal interest in the matter under section 5/3-
9008 of the Counties Code. Sеe e.g.
E.H. v. Devine (In re Harris)
,
played any role in Muhammad’s interrogation or prosecution for Mim’s murder. The majority’s
assertion that “the undisputed facts show Milan exercised a quasi-judicial power as Supervisor
of the Felony Review Unit in the Cook County’s State’s Attorney’s Office that charged
Muhammad with first-degree murder” (supra ¶ 94) is as ambiguous as it is misleading, for it
suggests that because Milan supervised the Felony Review Unit he made the decision to charge
Muhammad. But there is no such evidence in the record. Similarly, there is nothing in the record
to support the majority’s assertion that Milan had a “relationship” with McDermott (supra ¶ 80)
or that McDermott’s position with the CCSAO aligned with or overlapped Milan’s work-related
responsibilities (supra ¶ 100). Further, Muhammad has not alleged at any time that any assistant
state’s attorneys working in the felony review unit were present for, played a role in, or were
aware of his alleged torture. There is no indication in the record or in Muhammad’s complaint
that suggests that an assistant state’s attorney was even present when Muhammad provided the
subject statement to Detectives Fidyk and McDermott. And even if Milan was involved in
charging Muhammad, Milan would still not harbor an actual conflict of interest. Muhammad
has not cited any case disqualifying a prosecutor based on police wrongdoing imputed to the
prosecutor. To the contrary, in
McCall v. Devine
,
¶ 150 The majority acknowledges that a defendant must establish an “actual conflict of interest”
under section 5/3-9008 (a-10) for the appointment and removal of a special prosecutor and may
not rely on speculation or suspicion (
McCall
,
an error casts doubt on the integrity of a proceeding, we have a constitutional duty to act. Supra ¶ 85. In Lang , after a hearing related to the defendant allegedly driving with a revoked license, an assistant state’s attorney followed the defendant out of court and hid behind potted plants to watch the defendant drive away from the courthouse. The assistant state’s attorney then contacted police to inform them that the defendant was driving without a license. Id . at 678-79. The assistant state’s attorney then prosecuted the case until trial, when another attorney from the Lake County State’s Attorney’s Office prosecuted the case. Id . at 679. The assistant state’s attorney who witnessed the alleged crime was the State’s chief witness at trial. Id . On appeal, the Second District found that the defendant’s prosecution сreated an appearance
of impropriety because the assistant state’s attorney surreptitiously followed the defendant until he observed the defendant commit a crime, which resulted in charges. Id . at 684. The reviewing *64 court believed that “the aggressive behavior toward the defendant created the appearance that the State’s Attorney’s office was obsessed with finding evidence against the defendant to obtain a conviction against him at all costs.” Id . “These facts created an improper appearance that the State was too involved with the underlying case to be fair in its prosecution of the defendant.” Id . Aside from the obvious factual differences ( id . at 685 (“we emphasize that our holding is
based on the specific facts of this case”)),
Lang
is inapplicable here.
Lang
does not impose a
duty on this court, constitutional or otherwise, to remove Milan from this case. Rather, the
Lang
holding was based on the statutory language, “is interested in any cause or proceeding” in the
preamended version of section 5/3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2014)).
Id
. at 681. In the 2016 amended version of section 5/3-9008 (a-10), that language has been
replaced with “the State’s Attorney has an actual conflict of interest in the cause or proceeding.”
55 ILCS 5/3-9008(a-10) (West 2016). This “actual conflict of interest” language forecloses the
possibility of a special prosecutor being appointed where there is the mere “appearance of
impropriety.”
Farmer
,
misplaced because it involved a prosecutor’s per se conflict of interest. There, the defendant’s former counsel became the state’s attorney of Kankakee County before the defendant’s trial. The prosecutor assigned to the case assured the court that the Attorney General’s office would be taking over the prosecution. However, just before trial, the prosecutor announced without explanation that the Attorney General’s office would not be entering the case and that the State was ready for trial. The defendant did not object at that point but raised the issue in a posttrial *65 motion and on appeal. Under those circumstances, the appellate court overlooked the forfeiture and reversed the defendant’s conviction, finding that a special prosecutor was required when a defendant’s trial counsel accepts a managerial position in the office that is prosecuting the defendant where that attorney was “intimately involved in the defendant’s representation before becoming State’s Attorney” and made “numerous court appearances on behalf of the defendant and was clearly privy to the defendant’s confidences.” Id . at 1031, 1034, 1037. Unlike in Courtney , Milan never represented Muhammad. Thus, Muhammad did not establish that Milan suffered an actual conflict оf interest under section 5/3-9008 (a-10) on account of a personal interest in his case. Nor does Milan suffer a conflict of interest under Rule 1.7(a)(2) or Rule 5.1(b) of the Illinois
Rules of Professional Conduct. Rule 1.7(a)(2) provides: “(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if * * * (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” lll. R. Prof’l. Conduct (2010) R. 1.7 (a) (eff. Jan. 1, 2010). Rule 5.1(b) provides that “[a] lawyer having supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Ill. R. Prof’l Conduct (2010) R. 5.1(b) (eff. Jan. 1, 2010). A party seeking to disqualify counsel under the Rules of Professional Conduct bears the
burden of proving a conflict of interest.
Franzoni v. Hart Schaffner & Marx
, 312 Ill. App. 3d
394, 400 (2000). Disqualification is a drastic measure.
In re the Commissioner of Banks and
*66
Real Estate
,
interest in Muhammad’s case. Contrary to Muhammad’s argument, the 1999 memorandum from an assistant state’s attorney to Milan does not constitute evidence of Milan’s personal involvement because it describes a separate, unrelated case involving different detectives that occurred almost two years prior to Muhammad’s arrest. There is similarly no evidence that Milan, in this supervisory capacity, was aware of any alleged Brady violations that occurred related to Muhammad’s prosecution. Accordingly, Muhammad failed to meet his burden to establish that Milan suffered a conflict of interest under Rule 1.7(a)(2) or Rule 5.1(b) of the Illinois Rules of Professional Conduct. Therefore, Judge Reddick did not abuse her discretion in denying Muhammad’s request to disqualify Milan on this basis. Unable to find a basis to conclude that Milan suffers an actual conflict of interest under
section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct, the majority cherry picks
two sentences from the second to last paragraph of Muhammad’s 46-page opening brief,
announces that Muhammad has advanced a due process argument, and sets out to resolve this
phantom argument by repeatedly equating Milan’s role as special prosecutor with that of a
sitting judge. To be clear, the words “due process” appear but once on the last page of
Muhammad’s opening brief and not at all in his reply brief. The majority has manufactured
Muhammad’s due process argument out of the whole cloth, denying Milan an opportunity to
respond, in derogation of our supreme court’s repeated admonition to avoid assuming the role
of advocate.
People v. Givens
,
of actual bias” that Milan’s personal participation in this case presents. Supra ¶¶ 96, 101 (emphasis added.). The majority points out that “decades of torture by Chicago police took place before the courts and legislature acted” and quotes an article which states that “the crisis of police torture is more far reaching than the ‘bad apples’ myth suggests.” In so doing, the majority effectively holds that under a due process analysis, the appearance of impropriety is sufficient to remove a special prosecutor. Cf. Farmer , 2019 IL App (1st) 173173, ¶¶ 33-39 (under the current version of section 5/3-9008, the party seeking a special prosecutor must demonstrate an actual conflict of interest, not merely the appearance of impropriety). The implication of the majority’s finding is that Muhammad’s unsupported allegations of guilt by association are enough to have Milan removed from this case. The phrase “risk of actual bias” in the due process context is generally found in cases
involving a defendant’s motion for substitution of judge for cause. A motion for substitution of
judge for cause is heard by a second judge, allaying due process concerns, and “ensures that
any substitution coming after a substantive ruling has been made is the result of a proven bias
or high probability of the high risk for actual bias and is not a mere ploy for tactical advantage.”
In re Marriage of O’Brien
,
Pennsylvania
,
prosecutor in this case to that of the “sitting justice” in
Williams
, who “had the opportunity to
rule on a collateral appeal by the same defendant when decades earlier as a prosecutor, the
judge had authorized the seeking of the death penalty.”
Williams
,
prosecutor’s personal conflict of interest “may” “in some contexts raise serious constitutional
questions.”
Marshall
,
simply alleging prosecutor or police misconduct because such allegations would call on the
prosecutor to “judge” his own conduct or the decision to prosecute or the conduct of police. But
nо court has ever adopted such an expansive due process theory of prosecutor conflict. And for
good reason. Appointing a special prosecutor implicates the public prosecutor’s duty as an
elected officer under the Illinois Constitution to represent the People (
People v. Morley
, 287 Ill.
*70
App. 3d 499 (1997) (“[t]o hold that a special prosecutor must always be appointed whenever a
victim or witness is employed by a state, county, or local agency would be an illogical, as well
as impractical, encroachment upon the authority of a constitutional officer”)), and the fiscal
purse because counties are responsible for the special prosecutor’s fees (55 ILCS 5/3-9008(b)
(West 2020)). Moreover, TIRC proceedings, like postconviction proceedings, are civil matters.
“Judicial review of a TIRC disposition is a civil proceeding, akin to the third stage of a
postconviction proceeding, which is also civil in nature.” (Internal quotations omitted.).
People
v. Gibson
,
case, Milan’s role was to represent the State. 775 ILCS 40/50(b) (West 2020). Milan was no
*71
more a “judge” in this case than any assistant state’s attorney filing a motion to dismiss or an
answer in a postconviction proceeding. Illinois caselaw is replete with instances of assistant
state’s attorneys representing the People in postconviction cases where petitioners allege that
assistant state’s attorneys and police officers violated their constitutional rights by obtaining
tortured and involuntary confessions or engaging in other misconduct, including specifically
not turning over
Brady
material. Following the mаjority’s rationale for its newfound due process
right, a public prosecutor would be disqualified from representing the People in such
proceedings because they would be called upon to judge themselves. However, Milan’s decision
that the evidence against Muhammad in this case is overwhelming, and even insufficient to
warrant an evidentiary hearing, is no more outcome determinative than a prosecutor’s decision
to defend a conviction in a postconviction proceeding. The circuit court makes the ultimate
decision on whether an evidentiary hearing is necessary following a referral by the Commission
and, if so, whether the evidence presented supports a finding for the petitioner. 775 ILCS
40/50(a) (West 2020);
People v. Johnson
,
¶ 167 Under the law it does matter if Milan has a personal interest. Milan’s reputation is not at
issue here. What is at issue here is whether then then Presiding Judge Martin and Presiding Judge Reddick abused their discretion in denying Muhammad’s motions to remove Milan pursuant to section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct. As Muhammad has not met his burden to prove an actual conflict under section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct, I would find that the Presiding Judge Martin and Presiding Judge Reddick did not abuse their discretion. There is simply no evidence that Milan or anyone from the CCSAO played a part in the
alleged torture of Muhammad or its alleged coverup or knew of any wrongdoing by Detectives Fidyk or McDermott in obtaining his alleged tortured confession. The fact that Milan supervised the Felony Review Unit or was the First Assistant when McDermott was hired is not indicative of his or the CCSAO’s complicity in the police department’s pattern and practice of torture. There has to be some actual nexus between Muhammad’s case and Milan’s involvement. Speculation, supposition and conjecture are not sufficient. Finаlly, the majority conveniently ignores the well-reasoned decisions of then Presiding
Judge Martin and Presiding Judge Reddick regarding the suspicious timing of Muhammad’s motions to rescind Milan’s appointment. Not only did they not abuse their discretion in denying Muhammad’s motions on the merits, they also did not abuse their discretion in denying Muhammad’s motions under the principal of forfeiture. Milan argued below and in this court that Muhammad’s successive motions to rescind his appointment were an effort to shop for a more favorable prosecutor. Despite specifically requesting that Milan be appointed in this case, *73 Muhammad sought to have Milan removed two years after his appointment alleging that Milan had a disabling conflict of interest, but only once Milan moved to terminate the proceedings in this case for lack of evidence supporting Muhammad’s claim of torture. Both then Presiding Judge Martin and Presiding Judge Reddick expressly found that the timing of Muhammad’s successive motions was highly suspect. Gorman, however, averred in her affidavit that until mid-September 2020, she “had no idea
that Mr. Milan had been an assistant state’s attorney in a high-ranking role at the time of [Muhammad’s] arrest, torture, and trial.” It is not clear from Gorman’s affidavit whether she claims she was unaware that Milan had previously been an assistant state’s attorney or whether she claims that she was unaware that Milan held a high-ranking position with the CCSAO. However, Milan points out that the 2017 order appointing him in the “Burge” cases expressly states that he is a former First Assistant Cook County State’s Attorney. In addition, as Milan advised then Presiding Judge Martin, he had also been appointed the special prosecutor in the case of Donald Elam, another client of Gorman’s. Milan advised then Presiding Judge Martin that he was appointed as the special prosecutor in the Elam case on June 6, 2018, and on August 21, 2020, he successfully moved to terminate Elam’s case. At no time did Gorman challenge Milan’s appointment in the Elam case. At oral argument, Gorman told us, “It never dawned on me in a million years that the special
prosecutor would be coming from that same office because of the nature of what the special prosecutor was doing. So, no, this was the person I was told by the State’s Attorney’s Office was hearing these [cases] when they recused themselves and to me it’s still mindboggling that this is who in fact was appointed.” Yet, as far as the judge who was assigned to hear *74 Muhammad’s case, Gorman also told us, “I did ask in my motion for a judge not to have a former State’s Attorney for a judge because of the potential for bias but as far as Mr. Milan, I knew nothing about him and I certainly didn’t know he was Head of Felony Review at the very time my client was being tortured during Felony Review.” There are many reasons why then Presiding Judge Martin and Presiding Judge Reddick
could have determined that Muhammad’s motions to remove Milan were gamesmanship and not based on any genuine conflict of interest. In the age of the internet, it is difficult to comprehend how Gorman was not aware of Milan’s high-ranking position with the CCSAO. In 2017, Milan had succeeded to the role of special prosecutor in the high profile and newsworthy Burge cases. There had been substantial media coverage of Milan’s work as special prosecutor in the Burge cases. By way of example, on July 10, 2019, after Milan was appointed special prosecutor in this case and 16 months before Gorman filed the first of Muhammad’s successive motions to disqualify Milan, the Chicago Sun Times published a story under the byline, “Judge to Reconsider if Special Prosecutor Needed for Burge-Related Case,” identifying Milan as “a former top deputy to ex-State’s Attorney Richard Devine.” Chicago Sun-Times, July 10, 2019. In addition, Gorman herself moved for Muhammad’s case to be assigned to a judge who had not previously worked for the CCSAO, begging the question why she didn’t similarly move as to the special prosecutor that would be assigned to Muhammad’s case. Further, Gorman’s affidavit is ambiguous regarding her knowledge of Milan’s prior association with the CCSAO. Finally, Milan was the special prosecutor in the Elam case with Gorman. There is a more than ample basis in this record to support then Presiding Judge Martin’s and
Presiding Judge Reddick’s finding that the suspicious timing of Muhammad’s motions to *75 disqualify Milan required their denials under the principle of forfeiture. I would find on this record that Muhammad’s bid to have Milan removed was prompted not by any conflict of interest but a desire for a more favorable prosecutor, as Milan argued below and on appeal. Then Presiding Judge Martin and Presiding Judge Reddick did not abuse their discretion in denying Muhammad’s successive motions to have Milan removed from this case based on an alleged conflict of interest under section 5/3-9008 (a-10) and the Illinois Rules of Professional Conduct. Muhammad never raised a due process argument, and in any case his due process rights were not violated. Accordingly, I would affirm then Presiding Judge Martin and Presiding Judge Reddick’s
orders denying Muhammad’s successive motions to rescind Milan’s appointment as special prosecutor in this case.
*76
People v. Muhammad
,
01; the Hons. Lawrence Flood, LeRoy K. Martin, Erica L. Reddick, Judges, presiding.
Attorneys H. Candace Gorman, of the Law Office of H. Candace Gorman, of for Chicago, for appellant.
Appellant:
Attorneys Robert J. Milan, Special State’s Attorney, of Chicago (Alan J. for Spellberg, Assistant Special State’s Attorney, of counsel), for Appellee: appellee.