Burge trial: All over but the shouting

June 22, 2010


A beefy Michael Hartnett, now an executive in the cable television industry, was the star of the courtroom today. Hartnett was a court reporter in 1982, and was assigned to the state's attorneys working on the investigation of the murders of police officers William Fahey and Richard O'Brien. On cross-examination, prosecutor Betsy Biffl chipped away at the professional image Hartnett had presented when questioned by defense attorney Richard Beuke about his work on the case of Andrew Wilson, who was convicted of the two killings. Hartnett acknowledged that he'd told the grand jury investigating Burge that he "didn't give a damn what happened to Andrew Wilson" and that he was "surprised to see him alive."

Under questioning from Biffl, Hartnett also acknowledged that it was standard procedure for a prosecutor to ask if a statement from a murder suspect was being given voluntarily. The question is typically asked in two or more forms (some examples of the prosecutor's typical litany include: Are you giving this statement voluntarily, of your own free will? Have you been coerced in any way? Were you well treated by the police? Have you been offered something to eat? Have you been offered something to drink?).‚  Biffl then walked Harnett through the statements he'd taken on the day of Wilson's arrest, drawing out that state's attorney Larry Hyman had failed to ask any such questions of the Wilson brothers (Andrew was the shooter, Jackie an accomplice) that day, but had asked them of a witness. It turned out that Hartnett also typed the murder confession of Gregory Banks, who testified to being suffocated and beaten by Burge detectives earlier in the trial. Biffl got Hartnett to read seven voluntariness questions that had been put to Banks.

It's never clear what the jury gathers from testimony. While they might think something peculiar was afoot in the Wilson case ("Why didn't the prosecutor ask those questions?), it's almost certain they won't realize how peculiar the absence of those questions is. No expert testified as to how bizarre it is not to see those questions. Furthermore, if the government is seen to put some stock in the fact that Banks was indeed asked seven voluntariness questions and claimed he was well treated by the police, doesn't that diminish his claim of torture? Will the jury recognize that when a detective is sitting a few feet away and your torturers are in the next room, it might not seem like a good idea to say anything but that you were well treated by the police?

With the jury excused for lunch, debate began on whether retired police sergeant Doris Byrd, who testified earlier in the trial for the prosecution, could be brought back to refute testimony from former commander Burge.‚  I reported earlier today that she'd given a sworn statement in 2004 claiming she'd witnessed then Lieutenant Burge point his gun at a detective he didn't like back in 1982.

Prosecutor April Perry argued that she should be allowed to return, that her story fell within the guidelines of what would constitute proper rebuttal to the defense claim that Burge was always careful with his weapon.

Defense attorney Marc Martin argued that it was collateral -- not directly relevant to the charges of perjury and obstruction in the indictment.‚  Martin indicated that if the government was seeking to introduce an earlier act of supplying false answers he might concede the point, but this incident had nothing to do with that, nor did it have anything to do with the abuse of a suspect, the issue underlying the indictment -- Laverty was a police officer, not a wanted man.‚  Judge Lefkow eventually agreed with Martin, and thus the jury did not see Byrd a second time and Laverty will be a ghost to them, mentioned on cross examination of Burge but undefined and unmentionable hereafter.

Testimony has now ended.‚  Closing arguments begin Thursday, and then it's all up to the chosen twelve.‚  The government wins a large majority of the cases it brings in this building, but this one is no slam dunk.

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