Filed 6:00 a.m. 10.29.2018
On the afternoon of Dec. 1, 2016, Kim Foxx, her husband, their two daughters and several of her new senior staffers rode an elevator to the 32nd floor of the Cook County administration building in downtown Chicago and found their way to her new office.
During her 12 years as a Cook County prosecutor, Foxx had never had occasion to step foot in the boss’s office. It was barren this afternoon, but large and impressive, with a sweeping view of the lake and the Loop. Her older daughter, 13-year-old Kai, made a beeline for the leather swivel chair behind the desk and spent most of the afternoon in the seat of power. Kai, 10-year-old Kendall and Foxx’s husband, Kelley, oohed and aahed over the panorama.
Foxx, 44, had been inaugurated a few hours earlier. In a ceremony at the Harold Washington Library, named for Chicago’s first black mayor, she’d become the first black woman to be Cook County state’s attorney. Among the personal effects she’d soon bring to her new office was a brick salvaged from the razing of one of the most notorious housing projects in America, a remnant from an earlier part of her life and a reminder of what set her apart in her new role.
The power of the office is immense. It’s the second largest local prosecutorial agency in the United States, after Los Angeles County. In Cook County last year, 30,000 felony and more than 400,000 misdemeanor cases were filed in adult court. The office’s 750 prosecutors greatly influence what offense if any will be charged, which defendants will stay in jail while their cases are pending, who will wind up with a felony conviction and who will serve time in prison and for how long.
There’s long been a racial dimension to this work. The vast majority of the defendants being prosecuted are black; the vast majority of the attorneys prosecuting them are white. Of the 11,000 defendants who were sentenced to prison in 2016 in Cook County, 74 percent were black and 11 percent were white. That same year, 76 percent of the prosecuting attorneys were white and 11 percent were black. The state’s attorney whom Foxx unseated was a Hispanic woman, but every chief state’s attorney before her had been male, and most had been Irish.
An incident—a police shooting, with race a factor—had propelled Foxx to victory in this, her first political campaign.
Two months after Michael Brown was killed in Ferguson, and half a year before Freddie Gray died in Baltimore, on an October evening in 2014, a white Chicago police officer, Jason Van Dyke, fatally shot a black youth, 17-year-old Laquan McDonald, on a Southwest Side street. McDonald was carrying a small knife and walking away from police when Van Dyke jumped out of a police car and emptied his 16-round handgun into him. None of the eight other officers on the scene fired a shot.
The shooting was captured by the dashcam of a squad car, but the city didn’t publish the video until a judge ordered its release in November 2015. The state’s attorney, Foxx’s predecessor Anita Alvarez, charged Van Dyke with murder—but not until hours before the video was released, which was 13 months after the shooting.
Alvarez said she hadn’t charged Van Dyke sooner because her office had been conducting a “meticulous” investigation and had been waiting for federal authorities to finish their own probe of the shooting. Critics didn’t wait to indict Alvarez, accusing her of trying to cover up for a killer cop. Marchers on Michigan Avenue soon after the video’s release chanted, “Sixteen shots! Thirteen months!” A coalition of black elected officials condemned Alvarez and threw their support to Foxx, and young activists started a #byeAnita campaign on social media.
The campaign had been intriguing even before the video was published.
Foxx was the protégé of a political heavyweight, Toni Preckwinkle, president of the Cook County Board of Commissioners, for whom Foxx had served as chief of staff from 2013 to 2015. An ardent proponent of criminal justice reform, Preckwinkle said in June 2015 that Alvarez was hampering her efforts to reduce the population of the county jail and “had to be dragged kicking and screaming through this reform process.” Foxx announced her candidacy two months later.
After the release of the McDonald video, Foxx blasted Alvarez relentlessly for taking so long to charge Van Dyke and vowed to hold police accountable for criminal acts. While Alvarez had offered the standard bromides of a state’s attorney candidate—she’d be tough on crime, she’d fight for victims—Foxx had called for a “holistic” approach to criminal justice, one that recognized that crime was “not just an issue of good guys versus bad guys” but often was a product of concentrated poverty. She knew a few things about poverty, she said, because she’d grown up in a public housing project, Cabrini-Green. She knew firsthand what it was like to be a crime victim. She understood criminal offenders too, she said—there’d been some of them in her family. She maintained that her proximity to crime and violence as a child would make her a more empathic state’s attorney.
In past elections, voters in Cook County, as elsewhere, had not been seeking empathic state’s attorneys with holistic approaches. But in recent years, for myriad reasons—growing disapproval of the mass incarceration of minorities, revelations of innumerable wrongful convictions, the wish to spend less on prison, notorious police shootings after which officers were not charged—voters had elected “reform” prosecutors in a handful of jurisdictions.
Alvarez tried to shift attention to her vastly greater trial experience. She’d been an assistant state’s attorney for 21 years before her election in 2008, almost all that time in the felony trial division. Foxx’s dozen years as an assistant state’s attorney had been spent mainly in the juvenile division; before that, she’d worked three years in the public guardian’s office, representing children in foster care. Foxx at first responded to the trial-experience issue by claiming that she had tried “hundreds” of felony cases. After Alvarez called her a liar, Foxx trimmed her estimate to “a hundred.” Alvarez said the office’s records suggested it was more like a half dozen.
Foxx then turned the argument around, maintaining that her years in the juvenile division mattered more than a lengthy trial résumé. It had deepened her understanding of the risk factors of youth and families that often led to criminal behavior—an understanding she said was more important in reducing crime than a focus on winning convictions and long sentences. She took to quoting Frederick Douglass: “It is easier to build strong children than repair broken men.”
But it was the McDonald video that did in Alvarez more than Foxx’s unconventional ideas about prosecuting. The Democratic Party endorsed Foxx after the video’s release, and Foxx won the newspaper endorsements as well, the Chicago Tribune noting that Foxx had “the pulse of this moment in Chicago.” The paper did caution her to remember that if she won, she’d be the chief prosecutor and not the chief public defender.
Foxx beat Alvarez handily in the Democratic primary in March 2016. Like most Democratic nominees for countywide office in Cook County, she then cruised to victory in the general election in November. Speaking to her supporters on election night, she sought to rein in the enthusiasm she’d created: “I cannot win an election and tomorrow flip the switch and change a system that has been broken for some time,” she said. “We must be urgent in our work. But . . . we must understand that that work—looking at systems that have existed for centuries—takes time.”
On the campaign trail, older voters had often mentioned Ed Hanrahan to her. He was the state’s attorney who in 1969—two years before Foxx was born—authorized the infamous raid on a West Side apartment in which Black Panther leaders Fred Hampton and Mark Clark were killed. It seemed to Foxx that few people remembered much about the five state’s attorneys between Hanrahan and Alvarez. For decades, voters had largely ignored the office, she would tell me later. “You could get into this job and hang out.”
Not now. The McDonald case had raised the office’s profile, as had Foxx herself, with her vow to reform criminal justice in Cook County. Reform is a fuzzy word, as is holistic. Were they just good campaign fodder? Many voters—including many who voted for her—wondered what she’d really do in her four-year term. Advocates were anxious for change, cops worried that she was out to get them and prosecutors were uneasy about her vows to transform their office. She’d captured a large, lumbering bureaucracy with promises to shove it in a new direction. Easier said than done.
The brick from the housing project won a prominent place on Foxx’s desk when she moved things into her office the weekend after inauguration. It’s a relic from the Cabrini-Green tower on Division Street in which she spent her first seven years. Her mother, who died in 2012, retrieved it from the wreckage when the building was torn down in 2011. The high-rise had been just two miles from her new office.
Foxx had lived in a 15th-floor apartment with her mother and her only sibling, a brother just 13 months older. When Foxx was 2, the family moved in with her grandmother, who lived on the eighth floor of the same building. Their father was never a part of their life. He’d gotten accepted to college shortly before Foxx was born, and in his family’s view, as Foxx put it to me, “my mother was that woman that caught him up with two children—it was best for him to cut and run.” Her grandmother helped care for Foxx and her brother. Multigenerational families were common in the project, and a future beyond public housing “wasn’t something people thought about,” Foxx said.
Violence was a fact of life. Gangs shot at each other outside the building, and inside the family’s apartment, Foxx’s mother’s boyfriend periodically beat Foxx’s mother. Domestic violence was rampant in the project. “We grew up watching really dysfunctional relationships and not realizing that they were outside the norm.”
We were talking in Foxx’s office on an April afternoon in 2017, in the first of a half dozen lengthy interviews I had with her during her initial year. She has a relaxed, conversational style and is refreshingly candid for an elected official. She never asked to go off the record, and while she clearly knows how to pivot to a talking point, she didn’t often.
Foxx is an expressive speaker, amplifying her stories with both inflection and gesture. (Her brother is an actor.) Her hands often start out folded on the glass coffee table where we’re seated, but they will soon be circling in front of her, fingers spread wide. She’s witty. She and her husband divorced after two years but later remarried. “My ex-husband, I still keep in contact with him,” she likes to say. She also says that given her childhood risk factors, it was predictable she’d wind up in the criminal justice system—just not as state’s attorney.
Foxx talks readily about her childhood despite all the dysfunction, and she’s insightful about it. The journaling she’s done since grade school has helped her understand herself, she told me. The stories she tells of her childhood often have tacit morals.
When she was 4, a teenage cousin began sexually abusing her, she said. He lived elsewhere in the project and occasionally babysat for her. He threatened to kill their grandmother if Foxx told. When Foxx was 7, her mother discovered what the cousin had been doing and beat him. Foxx blamed herself for the subsequent rift between her family and her cousin’s.
On her way home from school one afternoon when she was still 7, two boys she didn’t know pulled her into a building and took turns sexually assaulting her. She didn’t tell her mother until years later; on the heels of the abuse by her cousin, this new episode convinced her she was the problem. Her inability to talk to anyone about this feeling prompted her to write about it, which evolved into the journaling.
Foxx said her mother was exceptionally smart, but having two children so early derailed her ambitions. She dropped out of high school after Foxx was born, just a few months shy of graduation. She struggled with depression, smoked reefer daily and sometimes used hard drugs. The family scraped by until she got a job with the city’s public health department when Foxx was a teen.
Foxx’s mother “didn’t ever want me to be okay with what was around me,” Foxx told me—she was intent on her children transcending their circumstances, the way she herself hadn’t managed to. That was why, when Foxx was 8, the family moved to Lincoln Park, the affluent neighborhood north of Cabrini. It had far better schools—and apartments the family couldn’t afford. “When my mother left Cabrini, to move to Lincoln Park? Everyone was like, ‘You’re nuts.’ And my mother was like, ‘My kids deserve better than this.’” Foxx beamed as she told the story.
The family drifted between apartments and sometimes shelters when the kids were teens so they could stay in the premier school district where they attended LaSalle Language Academy and Lincoln Park High School. Foxx’s mother pushed her to excel academically, and she did. Foxx told me that if she came home with anything less than A's, her mother made her feel "like garbage." Foxx was elected president of her eighth-grade class—her only political campaign before the one for state’s attorney.
Foxx showed me a tattered and stained letter that she keeps in the office on a credenza behind her desk chair. Her mother wrote the letter to her own mother in 1988, when Foxx was 16 and the family was homeless. “She was trying to articulate to my grandmother how awful it was,” Foxx said.
Homelessness, her mother wrote, “means less of self-confidence, respect and esteem. It means going from one place of refuge to another, never really knowing when you’ve worn out your welcome. It means long periods of depression, not only do you need new shoes but so does your children.” She closed the letter: “God be merciful to me a sinner.”
“My mother had a hustler’s spirit, and she taught me how to be a hustler,” Foxx said. “Hustle in the sense of work hard, grind—find a way out of no way.” With a hearty laugh, she added: “She would think this was the ultimate hustle, that her daughter is sitting here. For her, spaces like this were reserved for people who had better backgrounds.”
Foxx emerged from her victimization as a child with a remarkably compassionate spirit. She’s reconciled with the cousin who abused her. She speaks positively of the live-in boyfriend who sometimes beat her mother. He was more of a father to her than her birth father, Foxx said—he taught her how to ride a bike, praised her grades, came to her eighth-grade graduation. “It’s hard for me to see him wholly as a bad person.” Foxx allowed that her mother “made some horrible decisions—she allowed us to witness her being abused.” But considering the demons her mother was wrestling with, Foxx said, her eyes misting, “she was a good mother to me.”
Foxx paused, then went on haltingly: “I’ve seen people I know and love do bad things—and it makes it hard to sum people up.”
She has cousins who’ve been to prison and cousins who’ve been shot. When her family celebrates holidays, she said, victims and offenders “eat at the same barbecue table.” The belief among prosecutors that “there’s gotta be good people and bad people” is what frustrates her most about her profession.
Compassion was modeled for Foxx by the other person instrumental in her upbringing—her grandmother, Myrtle Wilson. A native of Little Rock, Arkansas, Wilson came to Chicago in the 1940s. She was “exceptionally forgiving,” Foxx said. “She had a habit I picked up where if someone did you dirty, you say, ‘Bless his heart—we’re gonna pray for him.’”
Wilson, who died in 2006, never married, and had five daughters by three men. Foxx’s mother and two of her mother’s sisters felt unwelcome at their father’s funeral, Foxx said, “because there was another family there.” Wilson was deeply remorseful for having put her daughters in that situation. “She viewed herself as a sinner who had been given an opportunity”—and from that day on, “she tried to find redemption for her earlier life.”
But she was “very nonjudgmental for a church woman,” Foxx said, “because she’d been the woman sitting in the back pew at the funeral for the father of her children while his wife sat in the front pew. She couldn’t throw stones. She knew from what she came.”
The essence of a prosecutor’s job, of course, has always been throwing stones—identifying culprits and punishing them. The vision of prosecuting that Foxx hoped to instill in her office was more in keeping with her grandmother’s credo: Bless his heart—we’re gonna pray for him.
In her office that April afternoon, she told me she wouldn’t let worries about reelection sway her from her goals. “I’ve got four years to move the needle,” she said, her nails clicking on the coffee table. “It’s hard for me to imagine being cautious. To be tepid or shy because I’m worried about [preserving] my own power would be an injustice to my grandmother, to my mother. They’d be ashamed if I got to this space and just put on airs, as they’d say, at the expense of people who need me.”
“I try to wear a flame-retardant suit. You have to in this job. Someone’s always going to be disappointed in what I do.”
On a June morning, Foxx is talking about the heat that comes with being state’s attorney. “That’s the difference between running and governing, right?” she says. During a campaign, “you’re the new thing, and everyone’s like, ‘Oh, Kim Foxx, the new progressive prosecutor,’ and the activist folks are like, ‘We love her, we love her, we love her.’ And you’re like, ‘You know, I’m a prosecutor.’” She chuckles. “I have to do my job. You may not be happy with me based on decisions that I have to make.”
The way she goes on about criticism and her ability to shrug it off, I have the sense she is trying to convince herself.
“Some people are never going to be happy,” she says. “There are some people who think we have to blow up the system altogether, abolish all of it. I’m never going to please them. And there are some people who believe you have to lock up everybody for everything, and that the city is run by animals. I’m never going to appease them. I just got to do the right thing, and make sure I do it transparently.”
The activist folks were delighted with a couple of her early moves. Her second week as state’s attorney, she softened the penalty for shoplifting. Under Illinois law, retail theft was a felony if the goods taken were worth more than $300. Foxx said her prosecutors would charge shoplifters with a felony only if the merchandise taken was worth at least $1,000 or if the offender had at least 10 prior felonies. With this new policy, the office would “prioritize limited resources,” it said in a statement. But it would also be easing up on a crime often linked to poverty, drug addiction and mental illness.
The new policy was hardly a radical one. In early January, a state commission formed by Republican Gov. Bruce Rauner had recommended raising the threshold at which retail theft became a felony much higher—to $2,000. That commission, charged with devising strategies for reducing Illinois’s prison population, had said that incarcerating petty thieves “does not make the best use of prison resources.”
Chicago police Superintendent Eddie Johnson supported Foxx’s new policy. Chicagoans were concerned about the city’s violence, he told me—not with shoplifting.
In the suburbs, however, the reaction was different. Suburban merchants and police chiefs were “livid,” Foxx told me. “They don’t have the homicide rates we have in Chicago, and these quality-of-life crimes are very impactful for the people who live there.
“So what I learned from that is, you gotta talk to people before you implement things—let them know what you’re thinking of doing,” she said. “Even if we’re not going to come to an agreement, we should talk to you about it.”
Foxx had also moved forward quickly on another front: bail reform. In March, she announced that her prosecutors would no longer oppose the granting of individual recognizance bonds, or I-bonds, to detainees charged with nonviolent crimes who currently were required to post $1,000 or less but couldn’t afford to.
In June, her office announced that it would soon stop prosecuting people for driving on licenses suspended for financial reasons, such as failure to pay parking tickets or child support. Thomas Weitzel, police chief of west-suburban Riverside, then wrote a letter to all the county board members, asserting that with her new policies, Foxx was offering offenders “a ‘get out of jail’ card,” only “nowadays it is a ‘not go to jail at all card.’” In a radio interview, Weitzel said Foxx seemed intent not on reforming the criminal justice system but on dismantling it.
That same month, Foxx also took another step on bail reform. In bail hearings, prosecutors informed the judge of the alleged facts, but they hadn’t usually been recommending a particular bail amount. Henceforth, she said, in most minor cases, they’d recommend to judges that defendants be given I-bonds. Some bond court judges resisted at first, grumbling on the record during bond hearings about the state’s new stance. A defendant to whom a judge granted an I-bond might go on to commit a sensational new crime, jeopardizing the career of the judge who’d freed him.
Kevin Graham, president of Chicago’s police union, the Fraternal Order of Police, stressed to me that Foxx’s new bail policies put the community in peril: “When you have somebody who should have been in jail commit additional crimes—and let’s hope these are not crimes against persons—how’s the public going to feel?” Graham also disapproved of Foxx’s new policy on retail theft, warning that shoplifters who got only a tap on the wrist might “move on to other crimes.”
These were predictable criticisms, Foxx told me. “The most risk-averse place is the criminal justice system. The easiest thing is to always say, 'Lock somebody up.'” Her fist was pumping in front of her. “That is a no-brainer—but the outcomes are devastating.” Defendants who can’t make bail often plead guilty for probation to get out of jail quicker, and some of them are pleading guilty to crimes they didn’t commit, she said, which only deepens cynicism about the system. Pushing for more defendants to be freed pending trial was a “calculated risk. I know, based on human nature, that someone out on bond is going to do something. Your hope and prayer is that it’s not something horribly heinous. But you also know that that’s a possibility. But I also know that there are people [in jail] who shouldn’t be. And at what cost?”
Graham, who’d been elected in April, complained to me in June that Foxx hadn’t yet arranged to talk with him. “The fact that she hasn’t talked to us at all tells me she couldn’t care less what the police think.”
Foxx called Graham in July, and they met at her office on Aug. 1. She thought it went well, she said after that meeting. “I looked him dead in the eye, and I told him, ‘We’ll never agree on everything'—we just won’t—but that it was not in my best interests to go around slamming him and his members. I told him that, like it or not, we have to work with one another, and it serves our better good to collaborate where we can.” She said they talked about seeing if there was criminal justice legislation they could pursue together. She gave him her cell number.
Graham told me that he, too, thought the meeting was worthwhile. But if Foxx had hoped he’d take the hint and not slam her, that was not to be; by year’s end, he would criticize her in a letter to a newspaper for what he considered her anti-police, pro-criminal approach.
Alvarez had resisted calls for a special prosecutor to handle the killing of Laquan McDonald by Officer Van Dyke, but after Foxx beat her in the primary, she relented, and a special prosecutor was appointed. Foxx commended Alvarez’s reversal, which spared Foxx from dealing with a divisive case from the moment she set foot in office. (On Oct. 5, 2018, a jury would convict Van Dyke of second-degree murder and 16 counts of aggravated battery with a firearm. He's awaiting sentencing.)
But Foxx had another contentious police shooting case from the start. This one had occurred a month after the McDonald video was released and had roused the public, even though it hadn’t been captured on video, because of the circumstances: The officer was white, the two victims were black, and one of them was a bystander. Alvarez had left this one for Foxx to handle.
In the early morning hours of Dec. 26, 2015, Antonio LeGrier had called 911 because his 19-year-old son, Quintonio, was trying to break down his bedroom door with a baseball bat. When Officer Robert Rialmo and his partner rang the doorbell at the West Side two-flat, the woman who lived on the first floor, 55-year-old Bettie Jones, pointed them upstairs. Just then Quintonio LeGrier, holding an aluminum bat, ran down the stairs and stepped into the foyer.
The officers backed off the porch and down the stairs. Rialmo would later say that LeGrier charged toward the officers and swung the bat at him. (Rialmo’s partner would say he never saw LeGrier swing the bat.) Rialmo drew his gun and fired eight times. LeGrier was struck by six of the shots, and Jones, who’d been standing in the foyer behind him, was hit once in the chest. She collapsed across the threshold of her apartment, and LeGrier fell in the foyer partly on top of her. Both died shortly thereafter.
Chicago police deemed the shooting justified. LeGrier’s and Jones’s families sued the city and Rialmo. Rialmo countersued LeGrier’s estate, maintaining that Quintonio’s actions had prompted the shooting, causing Rialmo “extreme emotional trauma.” Those lawsuits are still pending.
In early February 2017, Foxx’s office announced that Rialmo wouldn’t be charged. There was “insufficient evidence to prove beyond a reasonable doubt that Officer Rialmo did not act in self-defense,” the office’s statement said.
“It’s another example of one law enforcement agency covering for another one,” the lawyer for LeGrier’s family, Bill Foutris, told reporters. “The players may have changed, but the justice system has not.”
Foxx knew the decision would upset some of her supporters, “but we also knew what we had to do based on the facts and the law,” she told me later. “So we did it, and then I went out and met with those constituencies and said, ‘This is why we did it. Let me be transparent with you even when I don’t agree with you, or you don’t agree with me.’”
Beyond the families of the two victims, protest of the decision was minimal—a testament to Foxx’s credibility, probably. The muted response may also have been due to the fact that by this time, Foxx’s office had already charged a Chicago police officer with murder in a different shooting.
On Jan. 2, 2017, on the Northwest Side, Lowell Houser, who was off duty, got into an argument with an acquaintance, Jose Nieves, pulled a gun and shot him. Houser, 57, was black; Nieves, 38, was Hispanic. Houser was charged with murder on Jan. 18.
And then a second officer was charged with murder just nine days after the announcement that Rialmo wouldn’t be charged. On the evening of Feb. 8, Amtrak officer LaRoyce Tankson and his partner caught 25-year-old Chad Robertson and two others smoking marijuana near Union Station, where Robertson was waiting for a bus home to Minneapolis. When Tankson started patting down Robertson, he ran. Tankson, 31, shot him in the back of his shoulder. Robertson died a week later. He was black, as is Tankson.
During the campaign, Foxx had pledged to seek special prosecutors in police shootings. The “necessary intimacy” between the state’s attorney’s office and police in their daily work made an outside prosecutor essential after police shootings to “mitigate widespread public distrust,” she’d written in Crain’s Chicago Business.
But by March, Foxx was offering a watered-down substitute: her office would continue to handle police shootings, but if a decision not to charge was made, that decision would be reviewed by the state appellate prosecutor. Civil-rights lawyers complained that the state appellate prosecutor was too cozy with police, but the bill Foxx’s office proposed was signed into law in August.
Foxx told me that soon after she was elected, she’d realized there were practical problems with the special prosecutor idea. Special prosecutors charge far more per hour than regular prosecutors make. Even if they were appointed only in fatal shootings, the cost could be enormous: since 2008, Chicago police have fatally shot about 15 people a year. And the county budget was strapped.
It would also be hard to find a pool of lawyers qualified to be special prosecutors in police shootings, Foxx said—lawyers whom both the police and the public would consider impartial and who would have the skill, expertise and desire to take on such fraught cases.
Coming to such realizations is perhaps another difference between running and governing.
More important than who handles police shootings is how aggressively they’re investigated, Foxx said. The state’s attorney’s office had traditionally played a passive role, letting the police and the agency that reviewed such shootings—the Independent Police Review Authority—do the initial investigating and stepping in only in the rare event that one of those agencies thought an officer should be charged. “I know we need to be on the ground investigating these cases immediately,” Foxx told me. The office’s quick response was what had resulted in two officers being charged with murder in her first three months.
Adolfo Davis was serving a sentence of life without parole in Stateville, a maximum-security prison near Joliet, when Foxx took office. He and many of his fellow black prisoners, most of them from Cook County, felt encouraged that the new state’s attorney was black, he would tell me later. Davis thought it was at least as important that Foxx had grown up poor: “Now we got someone who actually been through things we been through.”
He’d been especially buoyed by Foxx’s talk of a different approach to juvenile offenders. Davis, 40, had been convicted of a double murder he and two other teens had committed when he was 14. As Foxx began her term, a lawyer was preparing an appeal of that sentence. Most of Davis’s fellow prisoners, even in this max prison, had the thing he most longed for: an out date. With Foxx as state’s attorney, Davis thought, maybe he could win his appeal and get an out date of his own.
On an October night in 1990, Davis and the two other teens, all armed with handguns, had charged into an apartment in the South Side neighborhood of Washington Park, intending to rob gang members who were selling drugs inside. They shot four of the six people in the apartment, two fatally, before fleeing. Davis maintained the gun he had was knocked from his hand before the shooting began, but he was legally accountable for the murders regardless. He was tried as an adult and convicted in 1993. Because more than one person was killed, the life sentence was mandatory.
Nineteen years later, in Miller v. Alabama, the U.S. Supreme Court ruled that laws mandating life-without-parole terms, when applied to juveniles, were cruel and unusual punishment.
The 2012 ruling cut to the heart of much of what Foxx held dear—not only because it focused on juveniles but also because it emphasized the role of early environment in crime.
“Imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children,” the high court held in Miller. Mandatory sentences precluded consideration of the “hallmark features” of children, including their “immaturity, impetuosity and failure to appreciate risks and consequences.” They prevented a judge from taking into account a juvenile’s family circumstances, “from which he cannot usually extricate himself, no matter how brutal or dysfunctional.” A judge could still sentence a juvenile to life, according to the ruling, but only after weighing such factors—and life sentences for juvenile offenders should be uncommon.
After an Illinois appellate court decided that Miller should be applied retroactively, Davis was one of 80 Illinois convicts who were granted a new sentencing hearing. His had taken place in April 2015—when Alvarez was still the state’s attorney.
In that hearing, Davis’s lawyer detailed his chaotic childhood. He’d grown up in Washington Park—a poor, violent neighborhood. When he was 11, a psychologist evaluated him because of academic and behavioral problems he was having at school. Adolfo was “confused,” “helpless” and “deprived,” the psychologist wrote in his report. His clothing was torn and dirty. At home, he often made strange noises and laughed inappropriately—behavior for which he was whupped by his mother and grandmother. He was having nightmares and banging his head.
A social worker who visited Adolfo’s home when he was 13 found it “extremely unsanitary.” Adolfo slept on an infested couch in a dirt-floor basement. Relatives paraded in and out, and meals seemed to be sporadic. A probation officer also visited the home that year, after Adolfo, armed with a knife, robbed a person of $2. Adolfo’s mother was drunk when the probation officer arrived, and his grandmother was caring for 12 to 15 kids in the five-room apartment. The grandmother said Adolfo was hearing voices and banging his head hard enough to cause nosebleeds. The probation officer recommended that Adolfo be removed from the home, but he wasn’t. The murders happened six months later.
At the sentencing hearing, witnesses testified that Davis had become a model inmate and that he spent much of his time writing poetry and painting.
Alvarez had one of her aces arguing to keep the life sentence in place: James McKay, a prosecutor for 30 years, considered by many the top litigator in the office. McKay maintained the sentence was appropriate, notwithstanding Davis’s age at the time of the crime and his childhood circumstances. “I am not suggesting that Mr. Davis had an easy time as a kid,” McKay told the judge. “But there are millions of people throughout this world that have grown up in worse homes, that have grown up in worse neighborhoods, and they become law-abiding, productive citizens.” To blame the crime on poverty was “an insult to all the good, decent people that come from neighborhoods like that.” Davis had participated in the murders simply because of “decisions he made,” McKay said. He added that a life term for Davis would be “a deterrent for other juvenile offenders out there.”
McKay was making his argument to a former colleague: the judge, Angela Petrone, had been a prosecutor for 19 of the years McKay was in the office. She’d been appointed to the bench in 2007.
In the written ruling Judge Petrone issued three weeks later, she conceded that Davis had had a troubled childhood—but there was little indication that she found that fact significant. Davis had shown a “callous disregard for human life far beyond his tender age of fourteen,” she wrote. His “commendable acts toward self-improvement” in recent years, including his “sensitive paintings” and “alleged poetry,” were “not sufficient for this court to alter his sentence.” The natural-life term was necessary “to deter others.”
In December 2016, Heidi Lambros, the assistant appellate defender representing Davis on his appeal, filed her brief in support of his quest for a new sentencing hearing. Lambros asserted that Petrone had “blatantly ignored” the requirements of Miller. Because the judge “refused to consider the impact that Adolfo’s traumatic childhood had on his early adolescent criminality,” Davis was entitled to a new sentencing hearing before a different judge, Lambros wrote.
Like her client, Lambros had been heartened by the changing of the guard in the state’s attorney’s office. She later told me she thought Foxx’s own difficult childhood would help her understand “the tragedy of Adolfo’s life.”
Davis had been transferred in January 2017 to the Hill Correctional Center, a medium-security prison in Galesburg. On the evening of June 17, he called his girlfriend. She couldn’t get a word in edgewise at first; Davis was too busy apologizing for his role in a spat they’d had on the phone a few days earlier.
“I’ll do anything for you, just please forgive me,” Davis told her.
“Just do one thing for me,” his girlfriend said. “Take the deal the state’s offering you—you’ll be home in three years.”
She explained to Davis that she’d learned in a call from Lambros that the state had extended an offer under which Davis would be released late in 2020.
Davis started crying. “What I was fighting for had finally come through,” he would tell me—he was getting an out date.
As he learned when Lambros reached him a day later, Foxx’s office was willing to reduce his sentence from natural life to 60 years. Since he’d been sentenced in an era when convicts got a day of “good time” credit for every day served, 60 years really meant 30. And Davis had already served 27.
The chief of the state’s attorney’s appellate division had called Lambros with the offer. She was stunned. The appellate division “has always fought extremely hard to protect their sentences and convictions,” she told me. In her 15 years as an appellate defender, “never had a prosecutor called me out of the blue to say they were willing to undo a natural-life sentence like this.” She noted that Foxx could have simply concurred that Davis deserved another sentencing hearing rather than offer him an out date.
Davis accepted the offer without hesitation. Lambros said that on the phone, she could tell he still seemed shocked about it. “I think he truly believed he was going to die in prison.”
In the formal motion for disposition, which was approved by the appellate court in mid-July, Foxx’s office agreed with Lambros that Petrone had failed to consider, as the Supreme Court required, “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
Davis’s case had received much media attention on the eve of his new sentencing hearing in 2015, including a front-page New York Times story. But the agreement between Foxx’s office and Davis was made quietly, with not a single story about it until Chicago’s public radio station, WBEZ, ran a piece in late September.
In November, Davis told me that the reality was sinking in: He actually was going to be free. And even though it was three years down the road, the thought was starting to scare him. “Most all my life has been in prison. I don’t know how the world works out there. I got my GED in here, other certificates. I know how to buff floors. That don’t mean nothing out there.”
He said he thought Foxx believed that he and other juvenile lifers “made bad decisions when we was kids, but that we do deserve a second chance to give back to our community and show society we’ve changed.”
He added, “I’m just grateful that I’m not gonna die in prison.”
Both Davis’s age at the time of the murders and the circumstances of his childhood convinced Foxx that his life sentence was “inappropriate,” she told me in her office one morning in August. “I’ve got a 14-year-old,” she said. “When you see it up close and personal, you know juveniles are not mini-adults.”
Foxx and her husband and two daughters live in Flossmoor, an affluent south suburb—a world apart from the one she grew up in. She gazed vacantly out the window a moment. “I saw my daughter with her tennis racket and her bag on her way to tennis camp this morning, and I was like, ‘Look at you—what’s that like?’” Her daughter has “every advantage,” she said. And yet, “I’ve seen this kid pop off at the mouth to me. I’ve seen her eyes glaze over when she wants something so bad and she’s denied it, and she acts like a complete fool. And then she’ll snap back an hour later and act like nothing happened. It’s like, ‘Wow, they are a special breed.’”
She considered McKay’s assertion at the sentencing hearing that Davis, at 14, freely chose to participate in the murders “simplistic.” Studies of adolescent brain development show that juveniles “don’t have the same thinking capabilities and measuring of risk” as adults. And her years in the juvenile division had made clear to her “what mixing adolescence and trauma does.” In the child-protection wing of juvenile court, she said, “We operate a full system that recognizes that children are impacted by the conditions around them, of which they have no control.” Her fist was pumping and her tone was becoming exasperated. “We know that there are residual effects to exposure to physical and sexual and mental abuse. And we know the impact of trauma on decision making.” But when a child commits a crime, “we say none of that counts—‘He should have known better.’”
Foxx laughed at the idea that a life sentence for Davis would deter other juveniles from similar acts, as McKay had argued. “I think that’s how we as prosecutors think that they think.” Deterrence is “a concept we cling to, in the hope that what we’re doing actually makes a difference.” Having seen people in her family and neighborhood cycle in and out of prison, when she hears talk about its deterrent effect, “I’m like, ‘Are you kidding?’”
And regarding McKay’s contention that attributing the crime to poverty was an “insult” to all the “decent” people who grew up in poor neighborhoods and overcame that hardship, Foxx said tartly: “Who the fuck are you, speaking for me?”
Foxx has often had to explain why her success doesn’t prove that anyone can prevail over poverty. She had advantages that many poor children don’t, she said: a mother who, notwithstanding her own difficulties, instilled in her children the sense that they were capable—and who got them out of the project and into good schools, and a grandmother who was extraordinarily nurturing. Prosecutors like to focus on personal accountability, Foxx said, because it makes punishment seem just. It also absolves the larger society of responsibility, she added, “if it’s only bad choices by bad individuals.”
Foxx hopes to train her prosecutors to consider “mitigation” in a way prosecutors rarely do. Mitigation is usually offered to the judge by the defense lawyer before sentencing. It consists of reasons for withholding a prison sentence or for making it briefer. The defendant’s clean record before the current offense and the hardship his imprisonment would impose on his dependents are oft-cited mitigating factors. Under Illinois law, circumstances “tending to excuse or justify the defendant’s criminal conduct” can also be mitigation, so a defendant’s lawyer sometimes will mention his client’s arduous childhood. Prosecutors’ role in sentencing typically is presenting “aggravation”—factors pointing toward a need for imprisonment or for a longer sentence, such as the harm caused by the crime or the defendant’s prior convictions.
Prosecutors tend to be “dismissive” of mitigation, Foxx said, thinking of it as excuse making by the defendant and his lawyer, especially when it delves into the defendant’s social history. “It’s, ‘Oh, here they come, trying to minimize what this person did,’” she said. When prosecutors hear that a defendant was abused as a child, or that his mother was drug addicted, or that he’d witnessed domestic violence, she said their response tends to be, “Yeah, those things exist, but I can’t get caught up in that, because I can’t change poverty.”
Foxx wants her lawyers to consider mitigation as more than “a tool for defense attorneys.” She wants prosecutors themselves to seek out mitigating evidence when weighing a sentence recommendation or even earlier in their cases. She allows that it will be a challenge “convincing our attorneys that real prosecutors do that.”
The interests of crime victims have often been foremost for prosecutors. Foxx thinks victims’ wishes are important but shouldn’t be controlling. “We should honor and respect how they feel,” she told me. “But we represent not just victims but the people of the state of Illinois.” That means thinking about the “long-term effects of the sentences we recommend.” She noted that the vast majority of convicts who are imprisoned are eventually released and that most of them return to their neighborhoods, which often are the neighborhoods of their victims. If incarceration makes offenders more likely to reoffend, as some research suggests, leaning too much on prison may not make victims safer in the long run.
That’s an argument easier to make in the abstract than to a real victim, Thomas Needham later told me. Needham has worked both sides of the adversarial system: he was a prosecutor in the office for 12 years in the 1980s and 1990s, and he’s been a defense attorney for the last 16 years. “Someone whose home is burglarized, or who’s mugged on the street, or worse, brings a sense of outrage to the case and a demand for retribution,” Needham said. “The prosecutor’s job has traditionally been to channel that frustration into something concrete, a serious sanction. That’s going to be the challenge for Ms. Foxx and anyone else who wants to make the system more lenient. It’s going to be a very curious, compelling experiment.”
How does Foxx plan to get her prosecutors to make the paradigm shift she’d like them to make? “We are struggling with that right now as an executive team,” she told me. She envisions staff trainings, probably led by someone outside the office—prosecutors or former prosecutors who, like her, grew up poor and can attest to poverty’s role in crime and the collateral consequences of prison on families and communities. If she herself tried to lead such trainings, she said, some of her prosecutors would think she was “trying to force my agenda down their throats.”
The fact that the judge who resentenced Davis to life is a former prosecutor reminded Foxx of the importance of changing the philosophies of her assistant state’s attorneys. “The farm system for the bench is the prosecutor’s office,” she said. The many prosecutors who have become judges “grew up in an office that believed wholeheartedly that [offenders] are just bad people doing bad things.” If prosecutors learn to think more deeply about crime and punishment, she said, that mindset will “carry over to the bench.”
A new state’s attorney picks her own leadership team, but the rest of the staff is inherited. That makes it hard for the new boss to instill her ethos. It’s especially hard for Foxx, given how different her ethos is from that of many of the holdovers. The prosecutors who worked for Alvarez were “groomed to win at all costs, to seek harsh punishments and to overcharge purposefully” to get defendants to plead guilty to a lesser charge, Amy Campanelli, the county’s chief public defender, asserted.
The veterans had heard Foxx criticize the office and its practices during her campaign—and after she won the primary, they’d had nine months to stew about the approaching regime change.
The staff wasn’t calmed when Foxx named her executive team. None of the seven had worked a day in the office. Foxx had considered promoting from within, she told me, but because she’d spent most of her years as a prosecutor in the juvenile division, “my list of folks who I thought could do it was relatively short.”
The person she picked to be her policy director, 37-year-old Katie Hill, had never been a prosecutor anywhere; she’d spent three years as an assistant appellate defender and one year with a private firm that often sued police. Foxx and Hill had worked together on criminal justice issues when Foxx was Preckwinkle’s chief of staff and Hill was a policy adviser for the mayor.
Foxx chose former federal prosecutors as her top assistant and chief deputy. This was also problematic. There has long been an uneasiness between state and federal prosecutors in Cook County, with the assistant state’s attorneys assuming the assistant U.S. attorneys look down on them.
The state prosecutors aren’t being paranoid about that. Foxx’s new first assistant, 47-year-old Eric Sussman, allowed that he started his new position with a standard “federal prejudice”—that federal prosecutors are the “best and the brightest,” whereas state prosecutors come from “lesser law schools” and became state prosecutors “because they couldn’t get into the U.S. Attorney’s Office.” Sussman said his bias receded promptly once he started his new job: he was “incredibly impressed by the commitment, the dedication and the skill of the attorneys here.”
During his nine years in the U.S. Attorney’s Office, Sussman had risen to deputy chief of financial crimes. Since 2008 he’d worked for large corporate law firms, mainly in defense of white-collar crime. He shared Foxx’s belief in the need for fundamental criminal justice reform, in part because of a case he had handled pro bono beginning in 2015, in which he defended a West Side mother charged with murder. She was acquitted in October 2016, but only after she’d spent nearly 800 days in jail because she couldn’t afford bail.
Foxx and her executive team visited all the courthouses and bureaus in the city and suburbs over her first two weeks, with Foxx speaking to the prosecutors and taking questions from them. She also brought on a consulting group pro bono to survey the assistants anonymously, asking them what they liked, and didn’t, about the office and what their suggestions for improvement might be.
Many of the veterans acknowledged in the survey the need to try a different approach, Foxx said. “They wanted to know what the alternatives were, and that was encouraging.”
What was discouraging to Foxx in her first few months was the reaction of some assistants to the subject of race. “I talk about race a lot,” she told me in April. “I don’t have the ability to not talk about race.” When she’d bring up the mass incarceration of minorities, some prosecutors would “immediately retreat to ‘I am not a racist. I have nothing to do with that,’” she said. “And once that defensive posture is taken, it’s harder for them to hear, ‘I’m not calling you a racist—I’m not saying you’re stroking your mustache, ready to put as many black people in prison as you can.’” She worried that that defensiveness could turn into a rejection of everything she wanted to do.
“I’ve been very up-front with people here,” she said. “I put them on notice that it’s going to be uncomfortable, and if this isn’t what you signed up for, I completely understand—but we’re going to keep doing this.” She’d let people air their fears and criticisms, but she had to “plow ahead. I’ve got a mission to accomplish.”
The tension between the Foxx administration and some judges bubbled to the surface in August, when her first assistant—Sussman—collided with a veteran judge. The episode began in June, simply enough, with a broken headlight.
Police pulled over 25-year-old Karen Padilla-Garcia on June 19 because of the cracked headlight. She was issued tickets for that and for having no insurance and no valid driver’s license. Because she was on probation and had violated its terms, a warrant was out for her arrest—so she ended up in the county jail. On June 21, she was brought to Judge Nicholas Ford’s seventh-floor courtroom in the felony courthouse at 26th Street and California Avenue.
Padilla-Garcia had pleaded guilty to theft in November 2015. She’d created gift cards at the restaurant where she worked, sold them and then pocketed the cash she got for them, which cost the restaurant owner $1,500. This was her first felony offense, and in exchange for her guilty plea, Judge Ford had given her “second-chance” probation: if she paid the owner back and complied with the other terms of her probation, the conviction would be expunged.
Those other terms included reporting to her probation officer monthly—but she hadn’t reported since January 2016. She’d paid only $97 of the restitution, and this was the second time she’d been caught driving without a valid license.
The assistant public defender who represented her told Ford that Padilla-Garcia was seven months pregnant. Ford nonetheless ordered her to be held in jail, without a bond, until Aug. 25.
Padilla-Garcia went into labor a few weeks early, on July 23. She was taken to the county public hospital, Stroger, where she delivered her first child.
The next morning, Cara Smith, chief policy officer for the Cook County Sheriff, learned that a jail detainee had given birth and that she’d been in the jail for a nonviolent probation violation. Smith emailed Sussman to alert him that Padilla-Garcia would be returned to the jail within 24 hours and that unless a family member could be found to take care of the newborn, she might lose custody of the child to the state. She hoped Sussman could help Padilla-Garcia get released on an I-bond.
Smith wasn’t surprised when Sussman said he’d see what he could do. She’s a big fan of the Foxx administration. “What drives all of their decisions is a laser focus on what is just,” Smith told me.
Sussman contacted the first-chair prosecutor in Judge Ford’s courtroom, Brian Boersma, and asked him to try to get an I-bond for Padilla-Garcia. But Boersma told him Judge Ford was gone for the day and would be out the next two days as well.
At Sussman’s direction, and with the approval of the public defender who was representing Padilla-Garcia, Boersma brought the case before another judge in the courthouse, Arthur Hill, who granted Padilla-Garcia the I-bond. Instead of returning to jail, Padilla-Garcia went home from the hospital with her new daughter that day.
A week later, Sussman was in the courthouse and decided to pay Judge Ford a visit. Sussman told me he wanted to make sure Ford understood why the office had sought Padilla-Garcia’s release in his absence.
Ford had been a judge for 20 years and was a prosecutor for eight years before that. Often called “Quick Nick,” he was not known for his retiring nature. Ford beckoned Sussman back to his chambers and, according to Sussman, unloaded. “The first words out of his mouth were ‘Who the fuck do you think you are, releasing my probationer?’”
“I was shaken by the callousness and brazenness of his feeling that this was actually his probationer—that he in some way had ownership over this woman,” Sussman said.
According to Sussman, during their 45-minute talk, Ford blasted the Foxx administration, asserting that her policy on retail theft was causing chaos and blaming the city’s rising violent crime on her office. Sussman said Ford lectured him personally as well, telling him he didn’t understand Chicago because he lived in a northern suburb. Sussman responded that he’d grown up in South Shore and Hyde Park.
Ten days after the discussion in Judge Ford’s chambers, a local TV station, ABC7, added fuel to the fire, running a story saying that the judge was “facing heat for keeping a pregnant woman behind bars in a nonviolent case.” Padilla-Garcia told the station that Ford “didn’t seem to care” that she was pregnant. Cara Smith, the sheriff’s policy officer who’d notified Sussman about Padilla-Garcia, said in the report that “we still work within a very thoughtless criminal justice system.” (I asked Robert Foley, a senior adviser to Foxx who dealt with communications matters, if the state’s attorney’s office had called ABC7’s attention to Padilla-Garcia’s case. “We’re not going to comment on the sourcing of the story,” he said.)
The state motioned Padilla-Garcia’s case up from Aug. 25 to Aug. 14. Sussman himself represented the office when the case was called in Ford’s courtroom that day. (“I did not want the first chair in the courtroom to have to take the abuse” from Ford, Sussman told me later.)
Padilla-Garcia stood before Judge Ford with her daughter, now three weeks old, snuggled against her chest in a front-carrier and the courtroom public defender at her side. She and her lawyer mainly listened as Ford and Sussman lashed out at each other.
Sussman asserted that Ford had denied Padilla-Garcia the bail review she was entitled to after her arrest in June. Ford said the traffic violations were a new criminal offense, so under the law, a bail hearing hadn’t been required. They argued back and forth; at one point, Ford warned Sussman not to interrupt him again or he’d cite him for contempt.
Sussman said the state wouldn’t proceed against Padilla-Garcia on her recent probation violation—the one stemming from the traffic tickets—and he asked Ford to terminate her probation unsatisfactorily.
Judge Ford pointed out that if he did that, it would give Padilla-Garcia a felony conviction. He noted that it would also mean the restaurant owner wouldn’t get his restitution. Ford asked Sussman if he’d talked to the restaurant owner about this. Sussman allowed that he hadn’t.
“So you’re willing, right now, despite the fact you haven’t even talked to the victim of the original crime, to just allow her to go free and never pay this man back?” Ford asked.
“This is not a debtor’s prison we’re running here, Your Honor,” Sussman said.
Ford said Sussman’s “histrionics” were unwarranted.
The judge set another court date for Aug. 21, a week away. He did agree to allow Padilla-Garcia to remain free on her I-bond in the meantime. He also ordered her to be drug tested.
Sussman was out of town on a family trip on Aug. 21. That was lucky, he told me later, because he thought Ford would be “loaded for bear and prepared to hold me in contempt if I appeared a second time.” When the case was called that morning, April Perry, Foxx’s chief deputy—another former federal prosecutor—stepped up for the prosecution. She happened to be eight and a half months pregnant.
Padilla-Garcia had tested positive for marijuana, and this hearing began with the probation officer filing a new probation violation for that. Perry said the state would proceed against Padilla-Garcia on this new violation; Judge Ford said he was relieved that the state’s attorney’s office was finally seeing things his way. He said he now had to worry about how Padilla-Garcia would care for her infant in a “narcotic-inebriated state.”
The judge asked Perry if she wanted to offer anything in aggravation about the probation violation. The aggravation Perry offered was aimed at Ford and not Padilla-Garcia. She noted that the defendant had delivered her baby in custody, “unaccompanied by family or friends,” and had spent the first day of her newborn’s life “afraid that she would be separated from that child, and the child be given to DCFS.”
Ford countered that jailing Padilla-Garcia had only helped the baby, since the last month of her pregnancy had likely been drug-free. He said Perry’s “righteous indignation” would be better aimed at Padilla-Garcia.
After Padilla-Garcia pleaded guilty to all her probation violations, Ford recommitted her to probation and extended the I-bond. She’d still need to pay the restaurant owner the $1,400 she owed him. Ford suggested she “take the weed money and push it towards the restitution.”
Ford observed during the hearing that his colleagues on the bench were “all well aware of what Mr. Sussman did in here a week ago” when he declined to enforce a probation violation against Padilla-Garcia. Judges might henceforth be reluctant to give defendants probation, he said, since they couldn’t count on the state to enforce violations.
He told Padilla-Garcia he’d held her without bond in June “because I had no confidence in your ability to appear in court.” But he reminded her that he could have terminated her probation and given her a felony conviction. “That’s what Mr. Sussman wanted me to do the last time you were here. That’s what happens when the state’s attorney’s office tries to represent defendants.” The system works better, he said, when “everyone stays in their lanes.”
Foxx’s office regularly stresses how a felony conviction harms a person’s future and favors sanctions short of that when possible. So I thought that Sussman had in fact erred when he’d asked Judge Ford to terminate Padilla-Garcia’s probation unsatisfactorily—that he hadn’t known it would result in a felony conviction she might otherwise avoid. But Sussman insisted this wasn’t a mistake. Padilla-Garcia had violated her probation so often “it should have been terminated,” he told me; it was second-chance probation, not fifth-chance probation. Sussman added that he thought Padilla-Garcia would have been better off with the conviction than spending more time on probation with a judge who “has shown no concern with locking her up for the slightest violation.” If she’s unable to complete her probation successfully, “she’s risking going to jail for two years and having a felony conviction.”
When I told Ford that Sussman thought Padilla-Garcia merited the felony conviction, the judge laughed hard. “Maybe I’m more of a mensch than he is,” he said. But he felt sure that Sussman, being “new to the system here,” didn’t understand that the probation termination would have resulted in the felony conviction.
I related to Judge Ford the version of the in-chambers conversation Sussman had given me, and I asked him if he had indeed disparaged the Foxx administration and lectured Sussman. Ford seemed dumbfounded that Sussman had described the exchange to me and said he wouldn’t comment on a “private” conversation.
He added that he had “tremendous respect for Ms. Foxx” and that she hadn’t been the one who “misstepped” by having Padilla-Garcia brought before a different judge for the I-bond.
He also said, alluding to Foxx’s new policies on retail theft and suspended licenses: “I struggle to understand how they’re going to pick and choose which laws they’ll enforce and which they won’t.”
And he added: “Do you think that all the state’s attorneys who preceded Ms. Foxx didn’t keep an eye on doing the right thing? On being just? They didn’t use their authority with mercy?”
Foxx derided Judge Ford’s comment about lawyers staying in their lanes when I asked her about it in November. “I don’t think the justice system is like a two-lane highway, with a bright yellow line across the way,” she said with a scornful laugh. “Quite frankly, that’s offensive.”
She noted that she was making her prosecutors read the American Bar Association standards on the role of prosecutors. “It’s to seek justice,” she said. (The ABA standards stipulate that “the duty of the prosecutor is to seek justice, not merely to convict.”)
“I don’t know how the lane is defined when you’re talking about justice,” Foxx went on. Her hands, pressed against each other on the glass tabletop in front of her, spread wide as she added that prosecutors and defense attorneys could “share a broad highway.”
She described Ford’s response in the case as “institutional. Meaning the way the system has run is that the state’s attorney does its job, you come in and argue, you don’t make judgments about policy—you process. And we were stopping the process and asking the deeper questions. Which I would think prosecutors have a heightened responsibility to do.”
She defended the role Sussman had played. “We were trying to do the right thing,” she said. Fingers spread, she pressed a hand against her chest. “And forgive me for riding in my mother’s lane for a moment, but first, do no harm. There’s a baby who’s being born in custody”—a baby that could have ended up in the child welfare system, she emphasized. “And the issue is a broken probation promise. That is out of whack. It’s not us riding in somebody else’s lane. From a ‘seek justice’ perspective, is the penalty for violating probation the loss of her child? I will never be okay with that.”
Foxx was recruited to be a prosecutor when she was working in juvenile court for the public guardian’s office. But before that, she had applied to the public defender’s office. In the first round of interviews, she was asked if there were any kinds of defendants she wouldn’t be comfortable representing. “I think you’re supposed to say, ‘Everyone’s entitled to a defense.’ But I was like, ‘Child molesters. Rapists. People who committed domestic violence.’ I listed five or six things, and they were like, ‘Why are you here?’” She told her interviewers she knew people who’d been victims of these crimes, and it would be hard for her not to be affected by the accusation. “I did not make it to the second round.”
Foxx was often “miserable” as an assistant state’s attorney, she said. She found it “incredibly difficult” to work with people who “didn’t look like you, but dealt with people who look like you.” Snide comments from colleagues about defendants and their families were often followed with a patronizing “But that’s not like you, Kim.”
Then there were the defendants and their families themselves. “You walk in a courtroom, and families are looking at you like, ‘You’re trying to lock us up.’ They’re questioning your commitment to the community. It is a really hard place to be. You find a lot of good black and Latino prosecutors who are like, ‘Fuck it.’”
Now, to try to increase the diversity of her staff, Foxx hired the Cook County state’s attorney’s first ever diversity officer, Jennifer Ballard Croft. But while Foxx has put more minorities in leadership positions, the racial composition of the 750 line attorneys has hardly changed since she took over. When she began her term, 11 percent of those lawyers were black and 8 percent were Hispanic. As of this year, 13 percent are black and still only 8 percent are Hispanic.
The challenge is “not just getting people in the door, it’s getting people to stay,” Croft said. Some minority prosecutors leave for better-paying attorney jobs. The starting salary for an assistant state’s attorney, $65,166, compares unfavorably with most attorney positions in the Chicago area. But minorities also leave the office because they feel isolated or out of place, Croft said. In exit interviews, “I’ve had people say, ‘It’s great that we’ve got an African American woman state’s attorney, but I was the only person of color in my unit.’” One black attorney told Croft that during a trial, she could hear people in the gallery calling her a sellout.
Foxx makes frequent public appearances—speeches, panels, meetings with community groups—probably far more than any Cook County state’s attorney ever has. It should be part of the job, she tells me. Prosecutors’ offices are “opaque—no one knows what we do. I think it’s important to demystify what it means to be a prosecutor.” Getting out and around also helps her politically, of course. The events take advantage of her talent for communicating. She’s felt confident about public speaking ever since winning an extemporaneous-speech contest in seventh grade.
She often hears gripes about the office at her appearances and finds that valuable as well. “I come back and tell my staff, ‘Listen, we have a lot of work to do—the people we serve really don’t like us.’ Not because of something we’ve done necessarily, but we bear the weight of history, of a system that has failed. I think it’s important to be able to hear it. If I don’t come outside of the bubble and hear what we’re not doing well, I’ll run the same type of office as my predecessors did.”
She typically starts her talks by noting precisely how many months and days she’s been in office, to remind people it hasn’t been so long. That’s designed to manage expectations.
On a Friday in May, Foxx and a few of her prosecutors visited South Shore for an event where talking points weren’t a concern. They were participating in a mock job fair for middle-schoolers at Madison Elementary, a neighborhood public school whose enrollment is 97 percent black, 3 percent Hispanic and 97 percent low-income. Chicago Urban League staffers and employees of a bank and supermarket joined the prosecutors in conducting practice job interviews with the students at folding tables in the school’s gym.
Foxx was wearing a red-, white- and blue-striped dress and a pearl necklace, and her hair was in a bun. Chatting with middle-schoolers was easy for her, since she has two of them. “These students will talk to me—my girls don’t want to,” she told me with an eye roll between interviews.
A chubby-cheeked sixth grader in a plaid shirt said he wanted to go into business because he’s “very persuasive.”
“You want to be a prosecutor, come work for me?” Foxx suggested.
The boy shook his head. “It’s too much stress.”
It is stressful, Foxx told the boy, but she added that prosecutors get to help people who’ve been hurt.
“Maybe I’d be a public defender,” the boy responded brightly.
“We need good public defenders too.”
A tall seventh grader with glasses and a ponytail told Foxx she’d like to be an attorney because “I like helping people.” What kind of an attorney? Foxx asked. “A defense attorney, ’cause a lotta people go to jail or get prosecuted for things they didn’t do.”
To an eighth-grade girl, Foxx said, “I see you’re on student council.” The girl related that she was elected vice president after the prior vice president was impeached for arguing and fighting.
“I just ran for office too,” Foxx said. “What was your campaign like?”
“I just said I wouldn’t make any false promises, I’d be honest with people.” She asked Foxx if she had any advice for her.
“Well, you already said it—don’t promise things you can’t deliver,” Foxx said.
A seventh-grade boy in a blue dress shirt and a gold-and-blue-striped tie told Foxx he wanted to be a lawyer because he’s good at “convincing people of things.”
“That’s what I do,” Foxx said. “What kind of lawyer?”
“A defense lawyer, because I wanna help people.”
“Could you do that as a prosecutor?”
“Uh—yeah,” the boy said. Then he quickly added, “But prosecutors help send people to jail, and then the people have to go away from their families for long years. I wanna help people not have to go to jail.”
Foxx was disappointed but not surprised that the students were reluctant to consider being prosecutors, she told me after the event. “How many prosecutors look like them?”
Foxx “is not the model of state’s attorney that most police officers are used to or know how to deal with,” her policy director, Katie Hill, said. “It would be naive to think she doesn’t get some level of skepticism because she’s a black woman, and because of the way she talks about wanting to take a more holistic view of the system. There are definitely folks in law enforcement who are going to view anything she says as per se not credible.”
Tom Needham, the former prosecutor and current defense attorney, told me in September that many police officers he’d spoken with “don’t support her at all. Some of them are old-fashioned, and they don’t buy into lower bonds and more lenient sentences. They believe people should be held strictly accountable for the mistakes they’ve made.”
At least Foxx has Chicago police Superintendent Eddie Johnson on her side.
“She’s been a great partner,” Johnson told me this January. “The notion that she’s anti-police is just incorrect. What she is for is justice.”
When Foxx became state’s attorney, many rank-and-file officers “were concerned about the fact that she said she’d prosecute police officers,” Johnson said. “But she was referring to criminal activity by police officers. And if you commit criminal acts, to me, you’re not a police officer anymore—you’re a criminal, and you should be prosecuted.” Her charging decisions after police shootings in her first year had shown that she was “guided by the facts and not public opinion.”
He reiterated his support for Foxx’s policies on retail theft and suspended licenses. When I mentioned Riverside police Chief Weitzel’s contention that Foxx was “dismantling” criminal justice, Johnson said: “The criminal justice system is complex, just like the reasons we have crime are complex. Being the superintendent of a large agency like C.P.D., I’m very satisfied at the way she’s gone about her business.”
Foxx had detailed two prosecutors to work with police to try to reduce gun violence in two of the city’s most violent police districts. Johnson said that effort had convinced officers in those districts that “the state’s attorney’s office is actually in the fight with us and is as concerned about the violence as we are.”
The Foxx-Johnson relationship is enhanced by the fact that Johnson, too, is a product of Cabrini-Green. I asked him how he thought other brass felt about her. He said they were “unsure” of her until she addressed them as a group on Dec. 1, 2017—the beginning of her second year. “She took the time to address them personally. She didn’t send an emissary or make a phone call. I know they felt really good about her after she left.”
Foxx’s office developed a few strategies intended to address Chicago’s extraordinary number of homicides and shootings. Homicides would be prosecuted vertically, with the same prosecutors handling a case from start to finish, to increase continuity and the expertise of the prosecutors. The prosecutors detailed to violent police districts would focus on identifying and building cases against repeat shooters. Assistant state’s attorneys would work with police in monitoring social media, a growing source of deadly feuds.
Foxx often said that reducing crime was a chief goal for her. But notwithstanding how much prosecutors talk about their role in enhancing public safety, their impact on crime rates, at least in the short run, is limited. “Prosecutors can do very little on their own,” David Sklansky, a Stanford law professor who has recently focused his research on prosecutors, told me. “They don’t sit in patrol cars. They need the help of the police and the community.”
Foxx’s office can prosecute only the alleged killers and shooters whom police arrest—and in Chicago, police haven’t been arresting many. In 2016 the clearance rate (cases police report as solved) for homicides plummeted to 20 percent; for nonfatal shootings, it was about 5 percent. Police officials have blamed this on an insufficient number of detectives and officers; many others attribute it to rampant distrust of police, which was only exacerbated by the McDonald video.
On the morning of Oct. 4, 2017, as he was being escorted to a prison bus at the Stateville penitentiary, Arthur Brown looked up to the biggest, brightest rainbow he’d ever seen. “Everybody on the bus was talking about it,” he said later. “I told them, ‘That rainbow is for me.’”
The 66-year-old Brown was headed back to the Cook County Jail for a hearing at 26th Street. Brown was serving life for a double murder, but a judge was set to rule on his petition for a new trial.
In the predawn hours of May 28, 1988, a fire in a video store on 63rd Street in Woodlawn spread quickly through adjacent storefronts, including a carryout restaurant. The owner of the restaurant, an immigrant from Thailand, and an acquaintance were asleep in the restaurant; they died of smoke inhalation. The manager of the video store, 22-year-old Michael Harper, and Brown were charged with setting the fire and with the murders of the two people who died because of it.
At the time, Brown was a 37-year-old carpenter with no criminal record. When he was brought before a judge for his bond hearing, he collapsed. “I’m just emotional,” he told the judge when he was revived and helped to his feet. “I’ve never been in a courtroom before.”
Both Harper and Brown had given confessions at the police station. Harper’s was court reported; Brown’s was a brief statement written up by a prosecutor. In separate trials in 1990, both were convicted of murder and arson. Because it was a multiple murder, a life sentence was mandatory.
Brown later won a new trial, but he was convicted again in 2008. In that second trial, however, prosecutors had bolstered their case by implying, in their opening statement and closing argument, that Brown had told a detective where he could find the gas can that had been used in setting the fire. The detective had found it behind the video store, but, as the prosecutors knew from police reports and testimony at the first trial, a neighbor and not Brown had directed him to it.
Brown’s hunch about the rainbow proved correct: In court that day, Judge Joseph Claps ruled that the jury in the second trial might have acquitted Brown had prosecutors not misled it with their “false arguments” about the gas can. The prosecutors’ improper remarks were a “purposeful due process violation” that had resulted in Brown’s conviction, Claps asserted in his written ruling. He vacated the murder convictions and granted Brown a third trial. The state asked for 30 days to decide whether to appeal Claps’s decision.
Like Adolfo Davis, Brown had felt encouraged by Foxx’s election. He and other prisoners at Stateville saw her as a “guardian angel,” he told me. Because she came from a poor black neighborhood, Brown expected she wouldn’t be as hard-nosed as other state’s attorneys. “You have some good prosecutors,” he said, “but you also have some prosecutors that’s overzealous, and they want to put a feather in their cap no matter who they sacrifice.” Brown hoped Foxx would “change that culture.”
On Nov. 2, Brown appeared before Judge Claps with his attorney, Ronald Safer, a partner in a prestigious law firm that was representing Brown pro bono. Linda Walls, an assistant state’s attorney from the post-conviction unit, told Claps that the state would indeed appeal his decision to grant Brown a new trial.
Brown was dismayed. He knew it could be more than a year before the appellate court ruled. And even if Claps’s ruling were affirmed, it could be another year or more after that before he got his new trial.
Safer then asked Claps to release Brown on his own recognizance pending the appellate court decision. He pointed out that Brown had no criminal record at the time he was charged in the case, had no record of disciplinary violations in his 29 years in prison and was now 66. “He is not a flight risk,” Safer said. “He is certainly not a danger to the community. There is absolutely no reason that he should have to spend another year in jail waiting for the court of appeals to affirm this court’s opinion.”
But Walls asked that the standing no-bail order remain in effect, observing that Brown “has been convicted not once but twice by a jury of his peers of a double murder.”
Safer responded that Brown’s convictions had been vacated, so he now wasn’t convicted of anything.
But Claps sided with Walls. He declined to set a bail for Brown, let alone release him on his own recognizance.
Brown was crushed. The state’s position was all too familiar, he told me later: “It was, ‘Push hard, we got to keep him in jail.’ It wasn’t whether justice was given to me or not.” In Brown’s view, it was the attitude of the office under the leadership of five other chief state’s attorneys since he was arrested in 1988. It wasn’t the attitude he’d expected under Foxx.
The evening of the day Brown was denied bail, Safer bumped into Mark Rotert at a benefit for Northwestern’s Center on Wrongful Convictions. Foxx had hired Rotert to head the office’s Conviction Integrity Unit, which investigates claims of innocence from convicts. Safer and Rotert had been colleagues at the U.S. Attorney’s Office in the late 1980s and early 1990s.
Safer told Rotert that the state’s attorney’s office had disappointed him earlier that day. He related how the office not only was appealing the decision to grant a new trial to his elderly client—who he thought was innocent—but had argued, successfully, against granting him bail.
A week later, on Thursday, Nov. 9, Safer met with Sussman and Rotert, in Sussman’s office, about Brown’s case. Sussman and Safer also were acquainted, having worked against each other on a couple of cases in private practice. (What led to the meeting is a matter of disagreement: Safer says he wrote a letter to Foxx asking for an audience and was referred to Sussman; a spokesperson for the office says it never got a letter from Safer but that Safer contacted Sussman.)
Safer argued “passionately” that Brown was innocent, Sussman told me, but “Ron is very passionate about all of his clients. I joke with him that he does not represent guilty people.” The fact that Brown had been tried and convicted twice, and that both his direct appeals had been denied, made Sussman and Rotert skeptical. But Sussman invited Safer to send him documents from the case.
The afternoon of that meeting, a column slamming Foxx for her office’s stance in an unrelated case happened to go online. “Foot-Dragging Foxx Doesn’t Look Like Much of a Reformer” read the headline over Eric Zorn’s Nov. 9 Tribune column. Zorn blasted Foxx for allowing two men to “rot in prison” despite “overwhelming new evidence” that they were “almost certainly” innocent of a 1994 rape-murder on the South Side, for which they were doing life.
Referring to recent stories by Tribune reporter Gregory Pratt, Zorn wrote that DNA tests in May had excluded the two convicted men, Nevest Coleman and Darryl Fulton, as sources of the semen in the victim’s underwear and had indicated that it came from another man linked with three other sexual assaults.
In Pratt’s most recent story, published Nov. 3, the reporter recounted talking with Coleman in prison in western Illinois. Coleman had shown Pratt a yellowed newspaper story from March about Foxx’s plans to aggressively investigate possible wrongful convictions. “Mean what you say; say what you mean,” Coleman had told Pratt.
Rotert, who was overseeing the case, had said the office was awaiting results of another DNA test. Zorn urged Foxx to at least allow the men to post bail in the meantime. “If we’d wanted a top prosecutor who dragged her feet on apparent wrongful convictions,” he wrote, “we would have reelected Anita Alvarez.”
The column riled Foxx. Zorn’s knowledge of the case was superficial, she told me later: He was drawing his conclusions without the benefit of the hefty case file. “It’s not fair to read a couple articles and believe you know more than our folks do.”
On Saturday morning, Sussman and Rotert commenced reading the material on Brown’s case. “I read the first set of briefs from Ron’s firm, and my jaw hit the table,” Sussman would later tell me. “I thought, ‘Oh, my God, this guy might really be innocent.’”
In his first trial, Brown had acknowledged in his testimony that he’d been in the video store the morning of the fire. He’d installed burglar bars in the store earlier in the year. Harper had called him at about 3 a.m. on the day in question to tell him that burglars had broken through the bars and asked him to come to the store and secure the back door. Brown, who lived nearby, said he walked over, braced the back door with a 2-by-4, and then walked home. He said he was at the store for 15 minutes at most.
According to the admission Brown had made at the police station—the statement that had been written up by a prosecutor—when Brown was at the video store, Harper had told him he was going to burn down the store because he was losing money on it, and Brown had helped him place a mattress against a wall of videotapes. When Harper began pouring gasoline on the mattress and around the back of the store, Brown left through the front door and walked home. Brown acknowledged in the statement that he knew that an “Oriental” man and his girlfriend sometimes stayed overnight in an adjacent storefront. That admission made him culpable not just for arson but also for murder.
Brown maintained that the statement was false and that a detective had beaten it out of him. At his first trial, he’d testified that a detective had slammed his head repeatedly into a wall, “hard enough to shake my brains,” and had choked him until he’d briefly passed out—after which he’d signed the statement. On cross-examination, the prosecutor pointed out that at a pretrial hearing, while Brown had asserted that the detective had choked him, he never said he’d passed out or had his head slammed repeatedly into a wall, nor had he reported anything like that during his intake at the Cook County Jail.
In Harper’s court-reported confession, he admitted telling Brown that he wanted to burn the videotapes and collect the insurance. He said Brown agreed to help in return for some X-rated tapes. Harper didn’t say who poured the gasoline or started the fire.
Sussman found Brown’s confession perplexing. He thought Harper might have called Brown to the store that morning to bolster an alibi he had in mind—that someone had broken into his store and set the fire.
Rotert likewise found Brown’s confession a “real head-scratcher.” Considering Brown’s spotless record to age 37, helping set such a fire seemed “a curious place to start your criminal career.”
He told Sussman he wasn’t sure Brown was innocent, but given the false statements made by prosecutors in the second trial, and the fact that Brown was now in his mid-60s, he questioned the wisdom of pursuing an appeal that could lead to yet another trial. “Are we going to finally decide to leave this guy alone when he’s on death’s door? My determination was, enough’s enough,” he’d tell me.
On Saturday evening, Sussman called Foxx and told her, “I think we may have the wrong guy.”
After he reviewed more documents on Sunday, Sussman said he felt certain that “we should not be pursuing the case, and that we needed to get Mr. Brown out of prison as soon as we could.” He told Foxx this in another call, and she concurred.
Early Monday morning, a guard in a maximum-security division of the Cook County Jail told Brown he was getting an attorney visit. Brown was elated. No visit was scheduled, and “it’s unusual for a lawyer just to pop up,” so he figured it was good news. Shortly after 8:30, he was escorted, handcuffed, to a room for such visits. A guard shackled him to a hook in one of the two steel stools in the room. Safer soon arrived with Tal Chaiken, a lawyer at his firm who’d done much of the work on Brown’s case. Now Brown was even more excited: It had to be something big for both lawyers to come. Maybe he was getting bail after all.
Instead, Safer told him, the state was dropping the case entirely.
Brown couldn’t believe his ears. He shook his head and began to cry. Both lawyers patted him on the shoulders, and Safer told him it was over.
The following morning, a deputy led Brown into Claps’s courtroom. Brown, tall and thin and clad in a tan jail uniform, stood meekly before Claps with his folded hands behind his back and Safer at his side. Joe Magats, Foxx’s chief of criminal prosecutions, formally told Claps the state was dropping its case against Brown. The deputy then led Brown back to the lockup; he’d be released later in the day after some final processing.
A moment later, in the hallway outside the courtroom, Safer heaped praise on Foxx. Her attorneys had acted with “lightning speed” after he’d called Brown’s case to the attention of her senior staff a week earlier. When they’d studied the file, they’d been convinced of Brown’s innocence, he said. The willingness to scrutinize an old case represented a “culture change in the state’s attorney’s office,” according to Safer. “This would not have happened in prior days. The Foxx administration deserves tremendous credit.”
The statement released by Foxx’s office didn’t go quite so far as to declare Brown innocent. It said prosecutors’ recent review had found “significant evidentiary issues that raised deep concerns about the fairness of Mr. Brown’s conviction.”
Newspapers reported that Brown had been cleared of a crime of which he’d been wrongfully convicted. TV stations said Brown had been cleared of a crime he didn’t commit.
If Foxx had indeed corrected a miscarriage of justice, her office hadn’t found it—it had found her office. And the injustice had been corrected only after a lawyer had met with attorneys he knew on Foxx’s senior staff. Rotert conceded that “fair-minded people” who knew that Safer was a friend of his might grumble that Brown’s case had gotten special attention while other prisoners who lack such clout are “up a creek.” He added, “I can’t slam-dunk that criticism.”
Sussman allowed that the meeting with Safer had been key but that he had “never turned down a meeting” with a defense lawyer who wanted to talk about a case, whether he knew the lawyer or not.
I asked Sussman why, if the case had seemed so weak to him and Rotert, the post-conviction prosecutors hadn’t seen the shortcomings and alerted their supervisors. “Some of it is the volume of the work and some of it is the culture,” Sussman said. “The culture in the office, particularly in post-convictions, has been ‘Your job is to preserve the conviction,’ as opposed to what we’re trying to impart, which is ‘Your job is to do justice.’”
Just five days after Foxx had been rebuked for “foot-dragging,” she was being hailed for her willingness to swiftly right a wrong. But Sussman said it was “absolutely coincidental” that the office had acted with “lightning speed” in Brown’s case on the heels of Zorn’s scolding.
I visited Brown in his niece’s apartment in South Shore a few days after he was freed. He’d been staying there, sleeping on an air mattress in the living room. A friend had bought him a cell phone, and his niece had begun teaching him how to use it.
Foxx is “changing the culture of the system,” Brown said. “That gives hope to a whole lot of others in prison that justice is going to prevail.”
The apartment is on the 17th floor of a lakefront high-rise. The living room windows look north, over the lake to downtown. He gestured toward the windows. “I can see the whole skyline. I can see the John Hancock, Lake Point Tower. I can see the Sears Tower. What do they call it now? I can see the ships and the boats. And the seagulls flying over the lake, hunting for food.” For 29 years, “I was looking at a wall and bars.” He shook his head slowly, in disbelief. “Oh, man—from that to this?”
The freeing of Brown began a remarkable week at the criminal courthouse at 26th Street.
The following day—Wednesday, Nov. 15—Foxx’s office dropped murder charges against 49-year-old Jose Maysonet, who’d been locked up for 27 years. Maysonet had been convicted of driving the getaway car in a fatal shooting of two brothers on the Northwest Side in 1990. He maintained that detectives had falsely claimed he’d admitted his involvement in the shooting. One of those detectives was Reynaldo Guevara. Over the last decade, many convicts had won new trials, and in some instances their freedom and large civil judgments, in cases in which the convicted men accused Guevara of framing them. Guevara had repeatedly invoked the Fifth Amendment, in both criminal and civil proceedings, when questioned about the accusations against him. Maysonet had won a new trial in 2016 after it was revealed that his defense attorney in his initial trial was simultaneously representing Guevara in a child-support case.
Maysonet’s current lawyers had summoned Guevara and four other detectives, all of whom were retired, to testify Nov. 15 in a pretrial hearing—but lawyers for the detectives said all five would invoke the Fifth Amendment. Sussman told Judge Timothy Joyce that the state could not prosecute Maysonet without the detectives’ testimony. He said the state still believed Maysonet was guilty and was dropping the charges “with deep regret.”
The day after that—Thursday, Nov. 16—Foxx’s office dropped charges against 15 men who maintained they’d been framed by a crew of Chicago police officers led by Ronald Watts, a former sergeant who’d gone to prison for shaking down drug dealers. None of the 15 exonerees was still in prison, but the convictions were removed from their records. It was Cook County’s first mass exoneration, and it was far from the end of the Watts cases: Rotert’s Conviction Integrity Unit needed to examine scores of other convictions Watts had played a role in to see if more exonerations were in order.
On Friday, Nov. 17, Foxx’s office closed out the week by vacating the convictions against Coleman and Fulton in the rape-murder case Zorn had written about. The state was still awaiting more DNA results to determine whether to retry the men; with no objection from prosecutors, a judge freed them on their own recognizance pending that decision. (On Dec. 1, the office announced it wouldn’t retry Coleman and Fulton.)
“This week has really changed my outlook on the Foxx administration,” Coleman’s lawyer, Russell Ainsworth, told the Sun-Times the day Coleman and Fulton were freed.
But it had only reinforced the opinion FOP president Kevin Graham had of Foxx. In a letter to the Sun-Times published Nov. 17, he lashed out at Foxx for dropping the charges against Maysonet. The state’s attorney was demonstrating a “clear movement away from prosecuting criminals into vilifying police officers,” Graham wrote.
When we spoke on an afternoon in early December, Foxx reiterated what Sussman had said about the Arthur Brown case: it was “purely coincidental” that the decision to free him had been made so quickly after Zorn’s column. When Sussman told her he’d concluded that the office should drop the charges against Brown, “I could have said, ‘Let’s wait until the Zorn heat goes down’” so it wouldn’t look like that had been a response to his criticism. But she said Brown shouldn’t have had to stay in custody another day.
A TV news station had aired Brown leaving jail the afternoon the case was dropped. Foxx had watched that in her office. She told me she thought of her mother’s letter about homelessness, which she keeps near her desk, and the fact that her mother had written it in 1988—the year Brown was jailed. She’d asked Foley, her senior adviser, to pour her a bourbon. Her voice softened and slowed as she recalled the moment. It wasn’t a celebratory drink; “I needed to numb myself.” It wasn’t just about Arthur Brown, she said. “It’s about what’s it like to be a part of a system that can fail so miserably. And then it’s like, Who else is in there? How many more?” She was struck by the “profound responsibility” of her job—the direct impact she sometimes had on people’s lives and liberties, a weight she said she’d just as soon do without. “That’s probably why I’d never want to be a doctor—I don’t want people’s lives in my hands. But I was assigned that as part of this.”
Her children don’t really understand what she does as state’s attorney, she said, except that it means she’s on TV a lot. Freeing Brown was “one of the rare times where my work resonated with them.”
Her first year had ended a few days before we talked. She said that on some days, it felt like she’d just started the job, and on others, it felt like she’d been at it 10 years. This afternoon, it must have felt more like the latter. When I asked her what she’d learned so far about the job, she chuckled wearily. “I think I already knew it, but it’s different to feel it—that no one’s ever going to be satisfied with what you’re doing. There is never going to be a satisfied constituency.”
She was especially frustrated by the impatience of advocates for criminal justice reform. “It’s never enough, right?” Some advocates had complained she hadn’t kept her promise to hold officers accountable for shootings. “In the first three months, two police officers were charged,” she said. “But it’s not enough.”
In 2016, under Alvarez, the office had reviewed 71 shootings by police, 34 of them fatal. None of the cases resulted in criminal charges. In 2017, the office under Foxx reviewed 65 police shootings, 35 of them fatal. The off-duty shooting by Lowell Houser in January and the shooting by Amtrak officer LaRoyce Tankson in February were the only ones resulting in charges. No other officer had been charged after a shooting because no other shooting by an officer merited charges, Foxx said. “But the quick sound bite is, ‘You didn’t do enough.’”
Foxx got a report card on her first year from advocacy groups that had worked for her election—Reclaim Chicago, the People’s Lobby and Chicago Appleseed Fund for Justice. It lauded her policies on bail, retail theft and suspended licenses and her “bold steps to confront past wrongs,” such as her dismissal of convictions in the Watts cases. The report faulted her for not doing more to reduce the impact of the drug war and recommended she institute a policy of not prosecuting people for possession of petty amounts of narcotics.
The report noted that Foxx had to wrestle with “an established office culture” as well as police and judges who were “less committed to reform.” Though she’d made “significant strides,” the report concluded that “we are still a far cry from transforming our criminal punishment system into a justice system that serves community needs” and that Foxx “must continue pushing forward in order to live up to the expectations of those who support and celebrate her.”
I asked Foxx about the recommendation regarding not prosecuting petty drug offenders. She isn’t ready to do that. “It’s ‘lessons learned,’” she said. Chastened by the ire provoked by her retail-theft policy, she’s reluctant to take a similar step with the far more fraught issue of drugs. Instead the office will work to build support for changing drug laws statewide, she said.
In her first year in office, 15 of the Cook County lifers who, like Adolfo Davis, were entitled to new sentencing hearings pursuant to Miller had their sentences resolved. Foxx’s office didn’t ask for a life term in any of the cases, and all of those convicts now have out dates. Given Foxx’s views on juvenile offenders, it seems unlikely that the office will seek life for any of the 13 Miller convicts awaiting resentencing. I wondered if Foxx had considered issuing a blanket declaration that she wouldn’t seek life for anyone in the Miller cohort. She said she’d thought about doing so, but her office’s sentencing recommendation is just that: a judge determines the sentence. A pronouncement of a blanket policy could irk a judge into defying her. “If I’ve learned nothing else this past year, it’s that acting unilaterally may have a detrimental effect on the ultimate cause,” she told me.
Foxx said that because everything hasn’t been fixed in a year, some advocates have accused her of not keeping her word. I was reminded of what she’d told me in June—that during the campaign, she was the “new thing,” on her way to being the “new progressive prosecutor,” and the activists were infatuated with her. A year into her term, though she knew she was still popular, she also realized the bloom was off the rose. As much as she understood that was inevitable, it also clearly bothered her. “This ‘progressive’ label had been affixed to me, and anything that people felt wasn’t aligned with that was used as a weapon against me,” she said. “And that, honestly, was hurtful.”
She embraced the “reformer” label during the campaign, but she was shrinking from it this afternoon. “Every time I read an article about me—‘She ran as a reformer.’ And I’m like—‘Did I?’” She said she ran saying the criminal justice system was broken and that she wanted to make it work more fairly. But “that was not me wearing the hat of ‘I shall reform this system in my four years.’ I knew that we had to do something different, and I would focus on that. But it becomes this double-edged sword.
“There’s an accountability you should have,” she went on. “People should not be satisfied. And at no point have I ever said, nor do I believe, ‘Cut me some slack’”—although she seemed to be saying it now.
“There’s a ton of work to do,” she said. “I cannot be the sole answer. The part that I can do—I’m working on it.”
She worried that the culture of her office so far had changed only superficially—that some of her prosecutors were implementing her policies not because they believed in them but because they had to. She’d heard that in bond court, when judges would testily ask prosecutors why they were recommending an I-bond, the prosecutors would sometimes respond, “Because it’s our new policy.” She wished they’d instead tell the judge they were recommending an I-bond because an I-bond was appropriate. She sensed there was a gap between the policies she and her executive staff were hashing out on the 32nd floor downtown and what was happening in the courtrooms.
Such a gap was to be expected after only a year. But Foxx, like the advocates, is impatient. “To the frustration of some around me, I know my time in office is finite,” she said. Her advisers “don’t like me saying, ‘If I don’t get reelected after four years.’ But it’s important to me to believe that these are four-year chunks—that you only have four years to be able to move the needle where you need to move it.”
I asked her what her mother and grandmother would think of her first year. “My grandmother would just be proud, because people at church would be talking about me,” she said.
But her mother could be “very critical” of her. She laughed hard, leaned back and hugged herself. “She would be like, ‘You did all right. You could do more. You should be about the work, you shouldn’t try to be on TV so much.’ She would not handle well reading criticisms about me in the paper. I think, though, that she would be proud that I didn’t run from who I was in terms of policy. By that I mean talking about poor people in our jails, about mental health, about raising the threshold for retail theft. She would be proud that I didn’t get here and try to separate myself from my past.”
Steve Bogira, who wrote for the Chicago Reader for more than 30 years, is the author of Courtroom 302, a book about the nation's busiest felony courthouse in Chicago. It won the Midland Authors nonfiction award for 2005 and was a finalist for the LA Times current interest award. He is the recipient of an Alicia Patterson fellowship and a Kaiser media fellowship in health and has an honorary doctorate in humane letters from Albion College. He lives in Chicago.
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