The Law and Richard M. Daley

At a certain point in the conversation, Rich Daley tugs loose his big red tie, rolls up his sleeves, and lays out his theory on crime.

“To me,” Daley says, “a narcotics dealer is the most dangerous person out there. He makes your murderers, your rapists, your home invaders, destroys your kids, your kids will rob from you, they’ll steal from you, they’ll quit school.”

Daley pushes back his chair. “We’ve been treating them like bank thieves: like it’s only a white-­collar crime, they’re only passing money and dope. But they make all these violent criminals out there.

“Eventually, we have to take a position. Hey, this is the bad guy, too. He’s not a white-collar criminal. He’s creating all these criminals, the violent and nonviolent criminals out there.

“And we see the mess out there today, because that was the attitude for too many years in this country.”

Daley is not a big man. He has his father’s chest, round as a half keg of beer, and his mother’s high, domed forehead. When he spreads his arms to make a point, his palms aren’t far apart. When he became Cook County state’s attorney nearly eight years ago, he had no experience in criminal law. He’d never tried a case. He’d never conducted an investigation. He had no theories about “the mess out there.”

The job has changed him. In the beginning, says his former gang crimes chief, Gregg Owen, “somebody would say, ‘We have a case where such and such happened to a little girl,’ and Rich would get mad—the guy would get red in the face. It wasn’t phony; he didn’t have to impress us. . .. He really has compassion for the victims.”

Now, says his brother Bill, Daley is “a lot more hardened about crime and the drug scene, how nobody gives a hoot about the victim-the whole judicial system.”

He’s known as one of the toughest prosecutors in the country. He has completely revamped the bureaucracy of his office-creating new units and tightening the chains of command-and left his stamp on large chunks of the Illinois criminal code: Laws written by Daley and his staff now dictate every facet of life in the criminal courts, from the way crimes are charged to the way judges mete out sentences.

He’s president-elect of the National District Attorney’s Association. This November, running for his third term as state’s attorney, he’s expected to bury his Republican challenger, Terry Gainer.

Voters support Daley. But many of the lawyers, judges, and cops who labor in the Cook County criminal court system view him with suspicion. Defense attorneys say he’s so anxious to rack up convictions that he clogs the courts with marginal cases, slowing the wheels of justice. Police officials say his legislative changes may look good to voters, but they have no effect on street crime. Judges say he’s clumsily and permanently upsetting a delicate system of legal checks and balances. “If you’re going to be a good prosecutor, you’ve got to be a good lawyer first,” says one judge. “I don’t know if that is still the philosophy.”

Another says, “When Daley became state’s attorney, I talked to him in these chambers. He had no idea what he was doing. Since then, he’s made politically expedient decisions that are frequently repugnant to the best interests of the judicial system. And I haven’t—nor, I dare say, has any judge­—seen his face in my courtroom once.”

Another judge says, “He’s undermined the credibility of the prosecutors in the courtroom, and of his office.”
But then, Rich Daley doesn’t run his office with an eye to what judges and lawyers think. He says, “You see, the problem with the criminal justice system, it’s all lawyers. The judges, the prosecutors, the defense. Once you step into that courtroom, no one else has anything to say.”

He says, “Lawyers control everything. And I differ with that.”

Who matters most to Rich Daley? “The victim of crime,” he says. “The voter,” says a trial-weary judge.

Both may be right. Daley is a complex creature: a man of energy, compassion, and enormous political ambition. He’s already made a deeper impression on the Illinois criminal justice system than any state’s attorney in recent history. But that’s just the beginning. I once asked his top aide, Frank Kruesi, if Daley wanted to run for attorney general. Kruesi batted the question aside. “I’ll tell you,” he said. “If you look at statewide offices, only one job really matters: governor. The rest of them—attorney general, comptroller, lieutenant governor—you’re essentially working under someone else. If you’re going to stay in the city, the job that matters is mayor.”

*  *  *

He works in a great glass tower named after his dad—the Richard J. Daley Center—and all around him are pictures of the man, the Boss, the mayor who presided over two million Democratic votes and made or broke the careers of judges, cops, state’s attorneys. His father’s briefcase sits on a chair beside him, black and compact, scarred in countless places. On the center of his desk he’s set a tape recorder, which spins quietly as we talk.

He says, “I remember, my father used to drive home and he’d see an abandoned car or a light out here, an abandoned house. Little things like that he would write down on paper. He would write down, At such and such an address there’s a light out. There’s an abandoned car over there, or a traffic jam here every night. He marked it all down. That’s what I’ve done to keep up-todate on the office.”

He says, “My father enjoyed being the mayor. He enjoyed it. And he knew the internal workings of the city. You have to know the internal workings of an office. If you don’t, you’re going to get hurt.”

As he talks, he picks up a pad and starts drawing on it-making circles, numbers, triangles, then underlining them twice, three times, in vigorous strokes. He studies the paper, folds it up, folds it again, and again, and then, with a slight, embarrassed smile, tears it up and ducks beneath his desk, looking for a place to toss it.

He’s famous for his paperwork. The Tribune reported in 1982 that he made his trial assistants fill out “monthly lists, daily lists, lists of last month’s lists, lists by crime, lists by area of crime, and lists of victims of crime.” One young trial assistant told me, win a big case and instead of calling to say ‘Nice job,’ the supervisor will ask why you haven’t turned in your forms.”

As they fill out more lists, Daley’s trial attorneys make fewer decisions. Veteran defense lawyer Sam Adam says, “If you tell the trial assistant that you’re willing to plead to a lesser offense, he can no longer just say yes or no. He has to ask his wing boss, and his wing boss has to ask his floor commander, and the floor commander has to go to the assistant in charge of the criminal division, who has to go to the first assistant state’s attorney, and then the two of them presumably look at the case and decide how it will look on Rich Daley’s record, because three or four days or one week later the answer comes back on whether they’ll accept it or not.”

Daley likes the way his record looks. Just over 900 people were prosecuted for drug-related felonies in 1979, Bernard Carey’s last full year as state’s attorney. In 1984, the last year in which figures were broken down this way, Daley pressed charges against nearly 4,500, a five­fold increase. Daley wins a higher percentage of jury trials than Carey. (He won 82 percent of his juried felony trials in 1986, compared with Carey’s 78-percent record in 1979.) He wins a slightly lower percentage of bench trials than Carey-and bench trials are the way roughly 90 percent of felony cases are heard. Because Daley tries so many cases, he wins about half again as many trials as Carey did; but he also loses about two times as many.

Veteran judges and assistant state’s attorneys say the cases Daley loses are often ones that Carey would have thrown out in the “felony review” process—usually because police had insufficient evidence to arrest or conducted improper searches. “There’s no question about it: A lot more cases are being passed through the felony review process,” says one criminal court judge. “With drug cases, there’s no felony review at all.”

Criminal court judge Kenneth Gillis, though reluctant to criticize, says “I’m not sure what his reasoning is, but nearly every arrest for drugs gets into the court system. I hear a lot of complaining about it: judges spending time with what we call a bad search, or just one or two pills, or one marijuana cigarette.”

It’s not just narcotics cases: “Reach into a car window and steal a pair of sunglasses and you’ll be charged with a felony now—the equivalent of breaking into a bank,” says Dennis Cooley, a long-time supervisor in the state’s attorney’s office who left under Daley. “I don’t mind that if it’s the only way to catch an Al Capone, but they’re doing this to 17-year-old kids.”

What’s wrong with that? In a system that can’t do everything, judges say, part of Daley’s job is to allocate resources. When he doesn’t—when he presses charges against every joker the police nab—the courts begin to bog down. Listen to Judge Shelvin Singer tell about a recent trial in his courtroom:

“Here’s the evidence that came out,” Singer says. “Three youths are walking down the street one afternoon with a motorcycle. The bike is nine years old, battered—wires are hanging out of it—and it’s in terrible shape. Two police officers cruising in a squad car stop the youths, who abandon the motorcycle and take off running.

“The officers chase them for 35 minutes. They catch nobody. They come back and the motorcycle is gone. They ask a pedestrian, who says some kid picked up the motorcycle. The officers find the kid. When they call to him, he stops immediately. He says he took the motorcycle because he thought he could fix it up. The kid is 18 years old. He has never been tried for anything before. The state’s attorney charges him with possession of a stolen motor vehicle, a class two felony. In my opinion, that kid never should have been in a courtroom. It took the better part of a day to try his case, plus several appearances. We had to delay other hearings. It clogged up the system.”

Assistant public defender Steve O’Sullivan says the clog-up is reaching critical proportions. “There are courtrooms down here that are filled up with possession­-of-stolen-motor-vehicle cases when there are real, serious cases they should be addressing. I think the long and the short of it is, the system is bogged down with an unbelievable amount of crap. Serious cases get delayed. I have a 1985 case right now which is waiting for a courtroom which is supposed to be hearing a murder next week but is busy hearing an unlawful restraint—a nothing case that should have been disposed of a long time ago. It’s an awful situation.”

But those are judges and defense lawyers. Daley’s people—the ones he calls “my clients”—are the folks who live in bungalows and want something done about drugs, the senior citizens who live in fear, the yupsters who’ve had it up to here with burglary. Because he presses every case, Daley is able to tell them that it’s the judges, not he, who release criminals. And he has said that quite regularly. When Judge E. C. Johnson ruled against him, Daley jumped on a press podium and declared, “Apparently everyone but Judge Johnson knows that it’s a crime for a lawyer to shake down a client.” He opined that Judge Eugene Pincham looked on rapes as “a social gathering for people.” He lambasted Judge Jose Vasquez, labeling one of his decisions as “ridiculous.” When Vasquez came up for retention, he was defeated. Judge Lawrence Passarella was voted out of office after Daley raised Cain about a ruling of his. “Daley engaged in a vendetta,” says one judge. “He was successful.”

Since the judges rarely discuss cases out of court, criticizing them is like shooting fish in a barrel. Samuel Dash, a member of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, told the Chicago Lawyer that Daley used the headlines to put judges “in terror of public condemnation.”

“That tends to intimdate all judges,” Dash said. “It chills them in honestly and courageously interpreting the law and encourages them to interpret the law only in the way that the prosecutor would approve.”

It’s not just headlines that intimidate: Judges go before the voters in Cook County, and there is a common feeling among lawyers and judges that Daley won’t hesitate to use his political organization to oppose judges who rule against him.
When I inform Daley that judges have criticized him, his response is telling: “Who are they?” he says. “Who are the judges complaining? I mean, you have a lot of complaints. I want to know who they are.”

Still, some judges refuse to go along with Daley’s program. For them, he has the ultimate weapon. He knows how to change the law.

Bob Repel works in a haze of papers and cigarette smoke. His radio is on; his telephone rings constantly. He waves a cigarette at the clutter. “Probably most of the paperwork you see around here was generated by Rich,” he says proudly.
A former Daley campaign worker and 11th Ward precinct captain, Repel is the state’s attorney’s lobbyist in Springfield, his messenger to the General Assembly. He’s a busy man: Daley has turned the Cook County state’s attorney’s office into a veritable legislation mill. Using connections and expertise gained in eight years as a state senator, he’s made hundreds of revisions to the Illinois criminal code. Most of the changes are subtle, but insiders say they have already had a profound effect on the state’s criminal justice system.

The process begins with a routine form that Repel sends to department heads, asking them to identify stumbling blocks to prosecution, and to suggest changes in the criminal code that would help them win cases. They also must give Repel a list of special interest groups that they expect to lobby for and against each change. Everyone—even the greenest trial attorney­is encouraged to get involved, and ideas come percolating up at an astonishing rate.

“I got back 80 legislative concepts from people in the office last year,” Repel says. “We introduced about 55 bills, and passed 43 or 44.” He grins and jerks his thumb at a pile of papers under a desk. “Some proposals I take and put right over there because I find them to be blatantly unconstitutional. It’s a refining process.”

Lawyers from the appeals division—which has grown from 16 to 60 lawyers under Daley—research the legislative concepts. Trial attorneys are often flown to Springfield to explain the bills.

Daley likes to boast that lawmakers of all stripes sponsor his bills, but a few names seem to crop up again and again. His brother John, state rep from the 21st District, was cosponsor of 10 of the 33 bills that entered the House in the fall 1987 session. State senator Tim Degnan, Daley’s former campaign manager, cosponsored four. Repel works out of Degnan’s office when he’s in Springfield. He says he offers their choice of bills to William Marovitz and John O’Connell (respectively, heads of the Senate Judiciary Committee and the House Judiciary II Committee). Marovitz cosponsored five last year. O’Connell, a former prosecutor who works closely with Daley, took seven.

“The primary stumbling block, Repel says, “is that Daley is pushing the limits of what is, in the eyes of state lawmakers, constitutionally permissible.”

Take eavesdropping, for example. Daley began lobbying in 1981 for permission to wiretap suspects in drug and kidnaping cases without consent of any parties involved. He openly implies that getting the law for drug cases is just a first step to expanding it to cover other crimes.

The bill’s progress in this spring’s session illustrates Repel’s agility and persistence: It got a “do not pass” vote in the Senate Judiciary Committee. Even Marovitz voted no: Wiretaps don’t usually result in arrests, he says, and they allow police “to listen to thousands of innocent conversations.” Repel dropped the bill—then added its language as an amendment to another Senate bill, thus bypassing the committee and taking it to the floor, where it won.

“That’s extremely typical of Daley,” says Rob Schofield, lobbyist for the American Civil Liberties Union’s Illinois Division, which opposes much of Daley’s legislation. “Last year Bob [Repel] stuck a lot of bills into conference committees; consequently, they came up late in the session, often weren’t read, and went right to the floor, where they were presented simply as ‘Let’s get tough on crime’ legislation. I object to his evasion of the committee process.”

Other Daley proposals that push the limits of the Constitution include a 1987 law giving Illinois state’s attorneys the right to switch trials out of a courtroom when they don’t approve of the judge. So far, Daley has tried the new law sparingly. In a case in which a state trooper was shot, state’s attorneys requested a substitution out of the court of Judge Singer—presumably because they wanted a judge who might give a harsher sentence upon conviction. Singer refused, saying the substitution violated the Constitutional principles of due process and the separation of powers.

Daley also created a law giving state’s attorneys the right to demand a jury trial in “class X” felony cases—even though it is traditionally the accused who is allowed, before his life or liberty is taken, to demand a hearing before his peers.

Daley’s laws were written with Chicago in mind, and some critics predict they’ll create havoc Downstate. In smaller counties with only a few judges, for instance, the state’s right to substitute judges and demand jury trials will give a state’s attorney the power to freeze out judges he doesn’t like. Both the substitution law and the jury trial law are under consideration by the Illinois Supreme Court, and the eavesdropping law will no doubt soon join them.

Other laws haven’t raised constitutional questions so much as the hackles of experienced judges, lawyers, and even assistant state’s attorneys. There’s the automatic transfer act, for instance: Any 15- or 16-year-old accused of murder, rape, armed robbery, or possession of more than 15 grams of a hard drug is now transferred automatically into the adult court system. “There used to be a perfectly sound procedure in Chapter 37 of the Illinois criminal code giving the juvenile court judge, an impartial observer, the power to determine whether or not the case merited transfer to adult court,” says defense attorney Jack Rodgon. “That mechanism was fair and gave judges discretion, which they should have: We don’t believe in cookie­cutter justice in this country.”

Daley says, “The automatic transfer was needed because discretion was terrible down there. What, he had to kill five people? You have to rape five young girls? You have to beat up eight people? You have to commit 20 armed robberies? It didn’t make sense. This is not baseball. You don’t keep charts. The discretion was never sent over so we had automatic. What’s wrong with that?”

What’s wrong? Daley’s critics point to an analysis of juvenile court data by University of Illinois sociologist Tom Regulus. Regulus’s research shows that judges were in fact granting transfers to adult court almost every time the state’s attorney requested them—until 1982, when Daley drastically stepped up his requests for transfers in armed robbery cases. Judges balked at sending many of those kids up, though not the rapists or murderers. In 1984 Daley got his new law.

More important, juvenile courts work on a rehabilitative model, while adult courts are punitive, and many of the kids who get sent up, Daley’s critics say, are still salvageable. “It’s now mandatory that a 14-year-old who served as the lookout in an armed robbery be transferred to adult court and subjected to the same sentences,” says a juvenile court judge. “I guess it’s popular to be harsh on juveniles right now. And to not trust judges.”

For adults, Daley has passed some of the stíffest narcotics sentencing laws in the country. He cut from 30 to 15 grams the amount of cocaine needed for a “c1ass X” possession charge. Fifteen grams, assistant state’s attorneys say, can get five people high. “Class X” means six years in the pen, minimum, with no possibility of probation-a stiffer sentence than you’d get for committing burglary, auto theft, or several sex offenses. Daley has made possession of more than one gram of cocaine with intent to deliver a “class one” felony (4 to 15 years).

Attorney Irv Miller, who served as chief of felony review under Daley until 1985, says that lowering the “nab” amounts has only opened the courts to a new type of criminal: the mope. “You’re not getting the hard-core dealers,” Miller says. “You’re getting the kid who has never been in trouble before. The narcotics officer buys a little bit from the kid, and keeps buying until finally he talks the kid into distributing a ‘class X’ amount. Now the kid who has never been in trouble before is facing six years in jail. The dealer is still sitting in his house. He’s never had one contact with the narc officer. He just finds another mope to peddle for him.”

Under Daley’s residential burglary statute, a 17-year-old caught robbing a house now faces a minimum of four years in the pen—no probation, no mitigating circumstances—even if he’s never been in trouble before. “We have cases like this not almost every day, we have them every day,” says public defender O’Sullivan. “Are these the people we want in our penitentiaries? For four years?”

Some judges who refuse to be straightjacketed by Daley’s mandatory sentencing laws have resorted to reducing charges on their own in a procedure known as a bench stipulation. “They are, in effect, ducking the letter of the law in order to achieve substantial justice,” says former assistant state’s attorney Cooley. But that’s possible only in bench trials. In jury trials, which Daley can now demand, the defendant is found guilty or not guilty as charged; the judge simply umpires the trial and metes out the sentence—as prescribed by Daley’s legislation. “If this goes on,” says attorney Sam Adam, “the system will either be handmaiden to the state’s attorney’s office or else it will grind to a halt.”

*  *  *

Judges complain when decisions are taken out of their hands. The defense bar howls about the rights of the accused. But the bottom line is on the street: Daley says he’s making our neighborhoods safer. Is he or isn’t he?

The answer, from cops and criminologists, is that Daley is no better but no worse at fighting street crime than his predecessor, Bernard Carey. They say a state’s attorney’s effectiveness ultimately boils down to the ability of his front-line courtroom attorneys. Although he gave cushy jobs to former aldermen Jerry Orbach and Miguel Santiago, helped launch a City Council career for his ex-employee Kathy Osterman, and hired the children of a few old-line Democratic judges, Daley has for the most part avoided politicizing his staff. Judges, cops, and defense lawyers say that his trial attorneys are uniformly able and dedicated.

It’s impossible to draw conclusions from Chicago Police Department crime statistics, since police reporting practices have changed so much in recent years, but studies done in other states indicate that legislation like Daley’s doesn’t affect street crime. Sociologists Simon Singer and David McDowall looked at juvenile crime statistics in the five years before and after the passage of the New York equivalent of the automatic transfer law. They concluded that “shifting the organization of juvenile justice to the adult court does not appear to have influenced crime rates in New York.” Automatic transfer “has not been effective in reducing juvenile crime.”

Chicago police officials, speaking on condition of anonymity, say Daley’s legislative program has had no effect on street crime: “Daley’s more severe sentencing provisions don’t have a real effect on crime because, simply put, people who commit crimes don’t often look ahead to the possible consequences,” says one top police administrator. “Frankly, a real change can only come when the leaders of this country address the root causes of crime: poverty, illiteracy, lack of good jobs and housing. Daley’s legislation, I think, is just there to make the public feel better about the criminal justice system.”

Another top police official says, “This game of pursuing longer sentences, more death penalty verdicts, and locking up kids longer-it’s aimed at higher visibility. You have to get votes, so you try to run up conviction rates any way you can. That’s the result of law enforcement by elected officials. It’s morally corrupting for the criminal court system, but I don’t fault Daley more than anybody else. All of it’s fairly predictable.”

*  *  *

The complaints about Daley, in one sense, all boil down to this: He is using the office for a steppingstone to the fifth floor of City Hall. In fact, just four months after he became the county’s top prosecutor, he began commissioning polls and laying the political groundwork for his 1983 mayoral bid. The Sun-Times’s Basil Talbott, Jr., in 1981 asked him point-blank about his candidacy; Daley “giggled,” Talbott reported. He was coy, but running hard.

Since the death of Harold Washington, Daley has again let it be known that he could be persuaded to take an interest in the vacant-or nearly vacant—throne. A poll financed by his backers and reported in the Sun-Times in June, though it sampled only 438 voters, showed him leading a field of seven likely opponents, and edging out his strongest rival, Alderman Tim Evans, in a one-on-one battle.

So why is he hedging? The thorny issue of race. Comments like Alderman Robert Shaw’s—he told the Defender, “A white should not be mayor"—cut Daley to the quick. He tried to run a race-free campaign in 1983. Since then, he’s tried to win black support by recruiting black trial attorneys and getting tough on the crimes that plague black communities. But black Chicagoans still aren’t comfortable with Daley. In the June poll, he garnered little black support in a one-on-one race against Evans, while Evans took a fifth of the white vote.

Before Daley enters the race, says his aide Kruesi, he needs an affirmative response to two questions: Can he present a campaign without a barrage of racial sniping? And if he wins, can he govern the whole city, black and white?

Whether he runs for mayor or positions himself for another executive office-governor or County Board president-the inevitable question arises: What does his tenure as state’s attorney tell us about the type of leader he’d be?

For one thing, Daley’s probably not as tough as his recent record indicates. His draconian legislation seems to be a response to the political pressures of his job, not a permanent part of his character. When asked to describe him in a word, his friends and family all say the same thing: “He’s jovial,” says his brother Michael. “He uses a lot of self-humor on himself.”
When you get down to it, Daley’s record says two important things about his candidacy:

First, he is a man of tremendous bureaucratic energy. He loves to immerse himself in the inner workings of institutions, to steep himself in cumbersome and complex pieces of legislation-and that’s a good thing. His former child-support supervisor Julie Hamos says, “Once in a while we would sit around and gossip, and Rich knew who was doing what and what the relationships were and what the morale was and the dynamics in every little corner of every single unit in the office. He has his feelers out.” As a state senator he spent “many night sessions digging into legislation,” according to his former colleague Sam Maragos.

The second, trickier question has to do with whether or not Daley listens to people. He began his state senate career, in 1973, by attaching himself to the pillars of the Regular Democratic Organization—great minds like LeRoy Lemke and Norbert Kosinski—and he used his clout to bat aside any legislation introduced by outsiders. State senator John D’Arco Jr., who served on the Judiciary Committee with Daley, says, “Origìnally, we would annihilate every one of [independent Democratic state senator Dawn Clark] Netsch’s bills. We wouldn’t let any of them out of the committee.” Congressman and former state senator Terry Bruce recalls, “He was personal about killing legislation. He would take on people rather than trying to work out the differences. He spent his time that way.”

But with the death of his father and the rise of maverick Dem Jane Byrne, Daley found himself having to stretch for political support. He cultivated ties among Republican lawmakers (who now admit that they “took a dive” on Carey) and also among the liberals: when Daley wanted to get involved with a revision of the mammoth mental health code, Netsch, the revision’s principal sponsor, stepped aside and let him spearhead efforts to pass it. The hard work was a tonic to him. “He got involved in more and more good substantive legislation, and he obviously enjoyed it,” says Netsch. “Before that, it was almost as if he was the crown prince sitting under protective glass. People were afraid to mess with him, and didn’t really communicate with him that much.”

In his last year in Springfield, Daley had a reputation for communicating with everybody. “He really grew tremendously,” says Bruce. But since he’s been state’s attorney, the protective glass seems to be back again, and his field of advisers has narrowed. He still relies on Netsch and other independents for troops and cash at campaign time, though he doesn’t seem to hear them voting against his bills on the floor of the General Assembly.

He likes to boast about his panel of advisers, which includes some of the city’s most distinguished legal minds, but he limits their input to questions of hiring policy and staff appointments. University of Chicago professor Norval Morris, one of the most respected criminal law professors in the country, has served on Daley’s advisory panel for eight years, and lauds his nonpolitical hiring. But what about his legislative initiatives?

“Well, there he’s playing politics more than good government,” says Morris.

Is what he’s doing good for the court system?

“He’s responding to political pressure,” the professor admits. “You know, appealing to mob rhetoric over reality.”

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