For more than two decades, Cook County has boasted the infamous reputation of the being wrongful conviction capital of the U.S.—both a statistical fact, according to the National Registry of Exonerations, and the result of ongoing public revelations since the 1990s, when the Reader’s John Conroy first exposed Jon Burge and his crew torturing suspects into making false confessions, through to today’s waves of mass exonerations of the victims of Ronald Watts and his crew.
At the heart of many wrongful convictions is the violation of a legal obligation on the part of police and prosecutors to provide evidence to defendants that might help their case. This violation can look like anything from withholding reports about conflicting eyewitness accounts to a failure to disclose that the investigating officer has a history of dishonesty or brutality.
This obligation has been outlined in several U.S. Supreme Court decisions, starting in 1963 with Brady v. Maryland and followed in 1972 by Giglio v. United States. These decisions state that the prosecution is required to turn over any evidence that would be favorable to the defendant, including information that calls into question the credibility of the prosecution’s witnesses—such as police officers or other investigators. Further Supreme Court decisions, the Illinois Code of Criminal Procedure, and a rule of the Illinois Supreme Court add even more weight to these requirements.
Despite a history of expanding obligations on prosecutors and police, the Cook County State’s Attorney’s Office (SAO) and Chicago Police Department (CPD) fail to comply with Brady in several ways, according to interviews with experts, successive outside reviews, and an investigation into the agencies’ practices by the Invisible Institute and the Reader.
What is the state’s attorney’s role?
As the representative of the government in a criminal case, the SAO and its prosecutors are ultimately responsible for disclosing any Brady material to defense attorneys. The Supreme Court has ruled that this obligation applies even if that information is not possessed or controlled by prosecutors, meaning prosecutors must conduct extensive due diligence about potentially exculpatory evidence and witnesses before calling them to appear.
To streamline the process of vetting witnesses, the SAO, under the leadership of Kim Foxx, who took office in 2016, has developed a procedure that all Cook County assistant state’s attorneys (ASAs) are required to follow: They must ask law enforcement officers if they have ever been arrested, charged, or convicted of a criminal offense; if a judge or prosecutor has ever found them to be untruthful or biased; and if they have any history of complaints, investigations, or disciplinary actions taken against them, including whether those complaints alleged their dishonesty.
If a witness says yes to any of these questions, the ASA must bring this to the attention of the SAO’s Brady Committee and chief ethics officer, Meriel Coleman, who then decide whether the information warrants disclosure to defense attorneys and, if so, how and when it should be disclosed.
These questions are key because the SAO does not have an automatic way to look up whether a Chicago or suburban police officer has a sustained disciplinary finding that might affect their credibility.
However, the requirement to identify and disclose impeachment information is a constitutional one, not merely a good faith obligation. If the SAO fails to locate sustained disciplinary findings and turn them over to a defendant, that constitutes a Brady violation.
If the chief ethics officer and Brady Committee determine that a witness’s past misconduct should be disclosed, that person is then added to an internal “disclosure” list, which is accessible to all ASAs in Cook County. ASAs are responsible for consulting with this list before calling a witness. However, placement on the disclosure list doesn’t prevent an officer from being called to testify.
If past misconduct is deemed especially egregious, or if the credibility of a potential witness is in complete disrepair, Foxx and her leadership team can take a further step of placing them on a “do not call” (DNC) list, which prohibits ASAs from ever calling them as a witness in a criminal proceeding. Placement on the list can, but doesn’t always, effectively end a law enforcement officer’s career. (See more below on the differences between the lists.)
Until 2023, little information was public about the SAO’s Brady-related lists or practices. In 2019, an investigation by USA Today and the Invisible Institute found that the SAO maintained no Brady list. Instead, the office circulated memos that inconsistently described the misconduct of each officer.
In March 2023, WGN-TV published a copy of the DNC list, and a month later, the TRiiBE obtained both the disclosure and DNC lists through a state Freedom of Information Act (FOIA) request. Following those releases, in July 2023, the SAO published an official copy of the DNC list (but not the disclosure list) and its Brady Giglio policy on its website.
Although police officers are not the only law enforcement witnesses called by prosecutors in criminal matters—some are expert witnesses on, say, blood pattern analysis—they are frequently called to appear and testify in court on criminal matters and are considered a core part of the prosecution team. Because of this, they make up the bulk of the individuals on both lists.
What is the difference between the disclosure list and the DNC list?
When an officer on the disclosure list is called by an ASA to testify in a criminal case, prosecutors must provide notice to the defense’s counsel about that officer’s history of past misconduct or incredibility. Disclosure to a defense attorney, however, doesn’t mean that the officer can’t testify, or even that the information disclosed will be admissible in that particular case—that is for the judge to decide.
If an officer is placed on the stricter DNC list, however, ASAs are prevented from ever calling that officer as a witness in any criminal matter. Officers placed on the DNC list are also prohibited from signing off on search warrants.
Many, but not all, of the officers on the DNC list have been stripped of police powers. Some remain active-duty CPD officers, though.
Rather than having hard and fast distinctions, the SAO maintains considerable discretion over which officers are placed on which list. Offenses that land an officer on the disclosure list versus the DNC list can be differences in kind, but also ones of degree. Several CPD officers convicted of crimes are only on the disclosure list, while others who have never been charged with a crime are on the DNC list.
Though that may make the distinction between the two lists seem arbitrary, especially in the absence of more transparency around both lists and the reasons officers are placed on each one, the SAO’s policy is vague, leaving substantial room for discretion. Cops can be added to the DNC list for any “circumstance deemed appropriate by the State’s Attorney of Cook County.”
Despite its series of rulings, the Supreme Court has never provided clear instructions for what compliance looks like; therefore, there is no uniformity for how different states, prosecutorial offices, or even individual prosecutors within the same office handle Brady information.
“These lists have developed sporadically, inconsistently, and often at the behest of prosecutors responding to credibility crises within local law enforcement,” Rachel Moran, a law professor at the University of St. Thomas in Minneapolis, wrote in a 2022 law review article.
Foxx, the state’s attorney, explained in a July interview that she released the DNC list to shore up her office’s credibility: “We believe that the credibility of our office and the integrity of the work that we do requires that we are as transparent as we can possibly be.”
What role do police play?
As part of the prosecution team, any Brady information held by the police—whether about the particular case or about the officers working on it—is assumed by law to be in the possession or control of the SAO.
In practice, that means that the SAO is reliant on the CPD, the Civilian Office of Police Accountability (COPA), and suburban departments to properly investigate, document, and discipline officer misconduct, and to consistently and accurately report that potential “impeachment” information—which calls an officer’s credibility into question, based on conduct in other cases—back to the SAO so that it can be disclosed to defense attorneys.
It is far from clear that each step of that process is happening.
First is the question of whether police departments are properly investigating, documenting, and disciplining officer misconduct. To take just the example of the CPD: On paper, the integrity of police officers is supposed to be “above reproach,” according to its Rules and Regulations, because “the dishonesty of a single officer may impair public confidence and cast suspicion and disrespect upon the entire Department.”
However, a series of successive government, journalistic, and other investigations have shown that the CPD overall has little interest in disciplining officers for lying. A May 2023 Chicago Office of Inspector General (OIG) report, required by the city’s federal consent decree over its pattern of unconstitutional policing, found that not only had the CPD failed to follow up on promises from then superintendent David Brown and Mayor Lori Lightfoot to take a harsh approach to officers who are found to have lied, but that the CPD still had more than 100 officers with such a history on staff at the time of the report.
A decade earlier, a series in the now-defunct news outlet DNAinfo detailed the very same pattern: a failure to report, investigate, and discipline officer dishonesty.
Even when they are disciplined, officers are often able to negotiate away a violation of the CPD’s Rule 14, which prohibits making a false oral or written statements, by appealing to a third-party arbitrator, a process made available through police union contracts. In 2017, ProPublica and the Chicago Tribune found 19 cases in which officers settled a Rule 14 violation through arbitration.
This leads to the second question: whether information about sustained misconduct is being reported to the SAO.
Six years after the ProPublica/Tribune investigation, the OIG’s report found the issue of Rule 14 violations getting overturned—and therefore not being disclosed on request from the SAO—continues. In May 2023, the TRiiBE reported that 126 officers with sustained Rule 14 violations did not appear on either the disclosure or the DNC lists, though the true number is likely higher.
The SAO’s Brady Giglio policy, released in July 2023, makes clear its dependence on the CPD, suburban police departments, and police oversight agencies like COPA to turn over any disciplinary or investigatory files, including Rule 14 violations. Per the policy, prosecutors issue questionnaires to every law enforcement witness they plan to call to testify that include questions about their credibility. However, the policy doesn’t outline steps prosecutors should take to independently ensure they obtain all required Brady information.
The questions also leave room for allegations of officer dishonesty not to be disclosed. Officers are asked about any “sustained or pending matters” that “involve dishonesty or untruthfulness.” But, if a Rule 14 violation was later overturned in arbitration, it’s not clear whether it would be disclosed at all—let alone cases in which neither the police nor COPA sustained dishonesty charges in the first place.
A 2023 report from the Chicago Appleseed Center for Fair Courts and Chicago Council of Lawyers argued that there are many instances of police making false reports that are never investigated or disciplined as Rule 14 violations.
If the SAO identifies any impeachment information about officers called as witnesses, the officers are added to the disclosure list and have 90 days to appeal through a process formalized by the SAO in July.
Officers should also be added to the disclosure list if a judge makes what’s called an “adverse credibility finding,” a ruling that an officer’s testimony on the witness stand was not credible, believable, or truthful. Whether police departments then investigate the finding that an officer lied on the stand, however, is a different question; a 2016 Tribune investigation found that the CPD rarely disciplined officers after such findings.
The final question—whether defense attorneys are properly notified when Brady officers are involved in their cases—is the subject of a future Invisible Institute and Reader investigation in this series.
What should compliance with Brady look like in an ideal world?
Many of the CPD and SAO’s recent reforms still fall short of ensuring the agencies are in compliance with the Supreme Court holdings in Brady and Giglio and the corresponding Illinois court rules, according to interviews with experts and the OIG’s report.
A significant obstacle is a lack of clear understanding concerning what constitutes impeachment material. According to the SAO’s policy, only sustained or pending allegations of dishonesty should be considered for disclosure, but this ignores the history of the CPD’s failure to hold officers to account—including supervisors like Jon Burge and Ronald Watts, who are now associated with dozens of overturned wrongful convictions, says Joshua Tepfer, an attorney who argues post-conviction cases with the law firm Loevy & Loevy and the University of Chicago’s Exoneration Project.
In another tack, the OIG recommended that all Rule 14 violations be reported to the SAO on request, including those that were later overturned in arbitration. The CPD disagreed, writing that the current “process of review” should remain in place. However, neither agency reckoned with the history of the department’s historically low sustained complaint rate—which hides true patterns of misconduct behind legal loopholes to close cases without discipline—or with the fact that nonsustained complaints and investigations could still be considered impeachment material.
The OIG’s report identified serious issues with the department’s recordkeeping practices, though, finding that the CPD does not maintain an accurate list of all officers with histories of sustained Rule 14 violations, nor did it keep track of the SAO’s requests for impeachment information. While the SAO was only aware of 13 officers with sustained Rule 14 violations, the OIG found that there were more than 110 officers with similar histories, whom the department should have disclosed to prosecutors.
“The gaps in recordkeeping create risks around whether this information is being appropriately disclosed, not only to criminal defendants but to civil litigants as well,” said Inspector General Deborah Witzburg in an interview with the Reader.
Tepfer routinely makes his own discovery and FOIA requests to police departments, either for case records or impeachment evidence, because he’s come to expect that the affirmative disclosures required under Brady and Giglio won’t happen. But he says a solution to the historic and continued noncompliance is for police complaint and disciplinary records to be open and accessible to both prosecutors and defense attorneys and for the CPD to keep records about cases in one, streamlined place.
After eight years in office, Foxx has stated that she is not seeking reelection as the Cook County state’s attorney. Whether her successor is a fellow progressive prosecutor or one who is “tough on crime,” it will be up to them to determine how the second-largest prosecutor’s office in the nation meets its Brady obligations.
This story is part of “A Catalog of Infamy,” a series on Brady cops and practices at the Cook County State’s Attorney’s Office, Chicago Police Department, and suburban police departments between the Invisible Institute and the Reader. This reporting was supported by the Fund for Investigative Journalism.
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Disgraced cops still on the streets and in the courtrooms
Judges challenge police credibility in court
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