Tuesday, September 25, 2018

Rahm Emanuel Undermines Frontline Officers with Rants of @Chicago_Police Code of Silence for Political Gain, Then Pays City Expert to Say It Does Not Exist

Under fire for how his administration handled the Laquan McDonald shooting, Mayor Rahm Emanuel in 2015 gave an emotional speech before the Chicago City Council acknowledging a “code of silence” allowed police to cover up misconduct.

Since then, however, Emanuel’s Law Department on five separate occasions has fought police misconduct lawsuits with the help of a hired expert witness who has testified a widespread code of silence does not exist, according to an analysis of city records by the Better Government Association and NBC5 Investigates.

The city’s efforts ultimately proved futile, costing taxpayers nearly $70 million in judgments, settlements and legal fees in four of those cases. In addition, the city has paid the expert witness — former Irvine, California, deputy police chief Jeffrey J. Noble — more than $165,000 since Emanuel gave his speech.

Attorney Jeff Neslund successfully litigated one of the lawsuits on behalf of two brothers and a sister who were shot by a Chicago police officer at a party in the early-morning hours on New Year’s Day 2014. A jury awarded them $4.75 million.

“It’s intellectually dishonest to say one thing to the public but then in private litigation, to fight it tooth and nail, to hire experts and pay them an exorbitant amount of money to contest and deny what you’re saying publicly,” said Neslund, who also represented McDonald’s family.

Emanuel made the famous “code of silence” speech on Dec. 9, 2015, just weeks after a Cook County judge forced the mayor’s administration to release dashcam video from the October 2014 showing Chicago police Officer Jason Van Dyke shooting McDonald 16 times on the city’s Southwest Side.

“The problem is sometimes referred to as the thin blue line,” Emanuel said in his speech before a crowded council chambers and broadcast live across the city. “The problem is other times referred to as the code of silence. It is this tendency to ignore. It is the tendency to deny. It is the tendency in some cases to cover up the bad actions of a colleague or colleagues. No officer should be allowed to behave as if they are above the law just because they are responsible for upholding the law.”

Noble, who has written extensively about policing and the code of silence, subsequently minimized these remarks in a separate police misconduct case, testifying that Emanuel’s speech represented the mayor’s “personal belief” but was inconsistent with what Noble learned in his review of city police practices. “He spoke as a mayor,” Noble said. “He’s an elected official, so he speaks — he speaks on behalf of the people that he’s an elected official, sure.”

On the same day the dashcam video was released, Cook County prosecutors filed murder charges against Van Dyke, whose trial is ongoing at the criminal courthouse at 26th Street and California Avenue. Before Emanuel’s administration fought the video’s release, the mayor signed off on a $5 million city payment to McDonald’s family even though family members had not filed a lawsuit.

The video’s release sparked government and political upheaval across the city, including waves of protests, a federal investigation into Chicago policing, an overhaul of how the city conducts internal police misconduct probes and Emanuel’s firing of Garry McCarthy as police superintendent.

McCarthy is planning to run for mayor next year. Emanuel, meanwhile, dropped out of running for a third term in a bombshell announcement just days before Van Dyke’s trial started.

Emanuel administration officials said there was no inconsistency between Emanuel's comments and Noble’s testimony.

“The reports and testimony provided by Mr. Noble reflect his conclusions in individual cases and his testimony does not contradict the mayor’s statement regarding a code of silence,” according to a statement from Law Department spokesman Bill McCaffrey. “Any suggestion that it does is simply posturing by plaintiffs’ attorneys as part of an attempt to litigate through the media instead of the courts.”

McCaffrey pointed to testimony Noble gave in another case where he highlighted that Emanuel never stated in his speech that the code of silence was “widespread or pervasive.”

“It is my opinion that there is no evidence of a widespread pattern, practice or custom of CPD officers engaging in a code of silence to the extent that an officer would believe they could engage in a constitutional violation with impunity,” Noble wrote.

Noble declined to comment for this story.

Nationwide, Noble has either testified, filed written reports or provided sworn depositions in more than 100 police misconduct cases. In many of those cases he has worked on behalf of cities or police departments, but he also has worked for attorneys representing plaintiffs suing police.

In one high-profile case, Noble served as an expert witness for the family of Tamir Rice, a 12-year-old boy who was fatally shot by a Cleveland police officer in November 2014 while playing with a pellet gun on a playground. But in Chicago, Noble has consistently worked as an expert for the city, which records show has paid him more than $328,000 over the past eight years. In all, he has weighed in on at least 26 police misconduct lawsuits on behalf of the city, including the five that involved code of silence allegations after Emanuel decried the problem in his 2015 speech, city records show.

On behalf of the plaintiffs, Chicago-based law firm Loevy & Loevy litigated several of these lawsuits. Attorney Matt Topic works for the law firm and is the outside general counsel for the BGA. Topic was not involved in any of the police misconduct cases and did not assist the BGA/NBC5 in the reporting of this story.

Before Emanuel’s speech, Noble on at least four separate occasions denied the existence of a code of silence in acting on the city’s behalf. One instance involved a lawsuit filed by Karolina Obrycka, a Northwest Side bartender who in 2007 was severely beaten by an off-duty Chicago police officer. Noble also contributed to the city’s defense of a lawsuit brought by Madison Hobley, a former death row inmate who claimed former Chicago police Cmdr. Jon Burge and others tortured him into confessing.

City records show Noble is generally paid an hourly rate of $245 plus $2,750 for every day he provides expert testimony in depositions or trials. In addition, the city covers the costs of Noble’s airfare and lodging, according to invoices obtained through an open-records request.

One of Noble’s most recent cases was the civil trial of Chicago police Officer Patrick Kelly, who a jury ruled used his service weapon to shoot his friend Michael LaPorta in the back of the head. The shooting occurred at Kelly’s home in the Mount Greenwood neighborhood after the two men had spent the night drinking at area bars.

LaPorta’s attorneys argued the code of silence played a key role behind Kelly’s actions because the officer felt emboldened to act with impunity and wasn’t seriously punished for prior misdeeds by his police bosses.

When the case went to trial in 2017, Noble took the stand on behalf of the city and denied the existence of a widespread code of silence.

He defined the term as a form of “social solidarity” where groups of people “try to protect others by failing to report what is obvious misconduct.” He said the police department discourages code of silence behavior because the city has policies that require officers to be truthful and to report misconduct. As evidence, he noted that more than 70 police officers were disciplined or resigned from 2008 to 2013 for breaking these rules.

In court papers filed by the city responding to LaPorta’s claims, Emanuel qualified the comment he made in his speech about the code of silence. Emanuel said those comments were based on his “own general belief and understanding,” and not “knowledge or information” he gained as mayor.

At the end of the trial, on Oct. 26, 2017, a jury ruled in LaPorta’s favor, awarding him a $44.7 million judgment. While the jury did not reach a unanimous decision on the code of silence issue, it did determine the police department had pervasive problems identifying misconduct, as well as investigating and disciplining some officers. A federal judge recently upheld the judgment and also ordered the city to pay an additional $2.5 million in legal fees.

One of LaPorta's attorneys, Antonio Romanucci, said in an interview with the Better Government Association and NBC-5 that contradictory messaging is an attempt to “pull the wool over the community’s eyes.”

“There is no question that in my opinion the community message that the mayor gives is different than the message that is given in a courtroom and the experts that it hires to testify when its officers commit misdeeds,” he said.

Noble also filed a report in a code of silence lawsuit against the city after a drunken off-duty homicide detective, Joseph Frugoli, in 2009 slammed his SUV into the back of a car pulled over on the Dan Ryan Expressway. Two men inside the car died.

Attorneys representing the families of the victims raised a code of silence argument in the case, alleging Frugoli thought he could drink and drive without legal consequences because his fellow officers had previously protected him. During the trial, the lawyers for the families specifically highlighted Emanuel’s comments about the code of silence being pervasive in his department. But in his report for the city in the case, Noble declared it was not at all pervasive.

’“The code of silence may exist at some level in all police agencies and when it does manifest it contributes immensely to incidents of abuse of citizens by the police,” Noble wrote in March 2016. “However, the fact that a few officers have engaged in a code of silence does not amount to an unwritten policy, practice or custom within the agency itself.”

Frugoli was eventually convicted of aggravated DUI and leaving the scene of a fatal accident and was sentenced to eight years in prison. The city settled the lawsuit and has paid $15 million to the men’s families.

Kevin Conway, an attorney who represented one of the families, said Noble’s report was in keeping with a broader legal strategy Conway has seen many times from the city’s Law Department.

“I think the city had a party line,” Conway said. “It was part of the party line.”

Thanks to Casey Toner.

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