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Infamous Police Killer To Get New Trial?

Torture Commission Gives Killer Of Two Officers Yet Another Chance...

Could one of Chicago’s most notorious cop killers be getting a new trial thanks to the workings of an obscure state agency?

Jackie Wilson’s guilt for his role in the murders of Chicago Police Officers Richard O’Brien and William Fahey in 1982, is assured. He was twice convicted and sentenced to life in prison without parole, with all appeals exhausted.

His crimes are notorious among Chicago police officers, for the vicious murders of Fahey and O’Brien culminated a month in which five officers were shot, four of them fatally.

In fact, at the time Fahey and O’Brien were murdered, they had just returned from the funeral for a rookie police officer, James Doyle, murdered several days earlier by Edgar Hope, an associate of Jackie and Andrew Wilson.

In one of the many macabre twists in the investigation of the murders, detectives would learn that Jackie and Andrew Wilson were actually on their way to Cook County Hospital to free Edgar Hope when Fahey and O’Brien conducted a traffic stop on them. Hope was recovering under guard from his wounds sustained in the shootout with Doyle’s partner.

Fahey and O’Brien could not know that their decision to conduct a traffic stop prevented the Wilson’s plan to spring Hope from custody, a plan that would likely have cost the lives of other innocent people.

The Wilson case also gave rise to the wrongful conviction movement, as prominent anti-police law firms built their claims of police torture and misconduct on the arrest and interview of the Wilson brothers by former Chicago Police Commander Jon Burge and his men.

The night of Andrew Wilson’s arrest, he arrived at central lockup badly bruised. The lock up keeper refused to accept him because of the bruises.

Decades of arguments followed about who abused Andrew Wilson. Attorneys for the People’s Law Office (PLO) argued it was Jon Burge and his men, but the PLO failed in two lawsuits against Burge to prove their case.

The family members of Fahey and O’Brien have faced an endless series of legal proceedings in which the case has been reviewed, forcing them to relive the nightmare of the crimes.

Now, once again, the possibility of another trial arises anew.

And it’s all thanks to an obscure, appointed agency that most citizens have never heard of: The Illinois Torture Inquiry and Relief Commission (“TIRC”). This state agency was created by the Act of the same name the “TIRC Act.”

It allows convicted criminals, with appeals exhausted, whose claims of torture or coerced confessions have been repeatedly rejected by Illinois trial and appellate courts, to make these same claims, unsworn, to a panel of appointed commissioners. If the commissioners find the claim has “merit”, a post-conviction hearing is commenced in the Circuit Court which could ultimately result in the convict getting a “get out of jail free” card.

TIRC, which has been under steady fire by the family members of murder victims, is a state agency that may be built on a house of unconstitutional cards.

The commission is a strange bypass to the well-settled post-conviction appeal process established by Illinois law and the Illinois Supreme Court Rules. Some criminal law attorneys believe it’s a violation of the Illinois Constitution’s separation of power doctrine and other provisions.

For instance, in Article II, the constitution says that the three branches of government are separate and no branch shall exercise powers belonging to the other. This has been used by the Courts to invalidate laws where the legislature tells the Courts what to do or how to do their jobs.

Other provisions of the Illinois Constitution specifically spell out that the Illinois Courts have all administrative and supervisory power over the court system.

And there’s an Illinois Supreme Court Rule (enacted by the Court) squarely on point governing post-conviction reviews of criminal cases that some believe is violated by the TIRC act. It says that the “only method of review in a criminal case” is by appeal.

If an appeal is the “only method” of review what is the process that TIRC is doing? A separation of powers challenge to TIRC would present the following question to the courts: will Illinois Courts agree that they will allow an appointed, administrative agency – an element of the executive branch – force them to take cases for appeal for convicted criminals, outside the rules and laws already controlling the post-conviction appeal process?

The Illinois Supreme Court has been very protective of its authority when one of its rules controls a situation and the legislature attempts to interfere.

Recent examples of the separation of powers doctrine at work include the 2013 and 2016 refusals by the comptrollers to pay state legislators. In 2013, it was Governor Pat Quinn trying to force movement on his agenda, and in 2016, it was Governor Rauner seeking action on his agenda and the budget. In both cases lawsuits prevailed that in part invoked the separation of powers clauses of the Illinois Constitution.

And then there’s the fact that the TIRC law only applies to acts of alleged “torture occurring within a county of more than 3,000,000 inhabitants.” That’s legislative-speak for “Cook County.” That clause has caused some to believe the law violates the Illinois Constitution’s ban on “special legislation.”

The Illinois Constitution prohibits special legislation in the Article IV, section 13, saying the Assembly “shall pass no special or local law when a general law” will work.

The special legislation prohibition seems appropriate. After all, is there something in the water of Cook County that creates more confessions created by physical abuse than anywhere else in the State? What’s the difference between a prisoner abused into confessing in Kankakee versus one in Cicero? Why should the Cicero prisoner get his own special appeals process not available to anyone outside of Cook County?

The constitutionality of the TIRC act has yet to be tested in court, but with the possibility that this renegade commission, filled with commissioners with a clear anti-police agenda, could free the likes of Jackie Wilson, perhaps it is time. 

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