A Civil Liberties Blackout in Chicago

By Benjamin Figoten

Imagine getting taken into police custody in the United States without being allowed access to your constitutional rights. For some citizens in Chicago, this may be a nightmare come true.

At the end of February 2015, sources began revealing that the Chicago Police Department has purportedly been operating a “black site” at a facility called Homan Square. Defense attorneys and persons previously held in detention at Homan Square have stepped forward and described police conduct that not only potentially violates guidelines of the Chicago Police Department, but also rights guaranteed under the Constitution of the United States.

Although the police have issued a response that they follow “all laws, rules and guidelines pertaining to any interviews of suspects or witnesses, at Homan Square or any other CPD [Chicago Police Department] facility,” a number of sources have provided personal accounts to the contrary.

For example, Brian Jacob Church, a NATO protestor held at Homan Square in 2012, is one of many individuals now speaking out against potentially abusive police conduct. After being taken into custody at Homan Square, Church recalls that police cuffed his ankles together and handcuffed him to a bench in a windowless room for seventeen hours. Then, during the course of his detention, police interrogated Church without reading him his Miranda rights, and denied his explicit request to contact an attorney.

As police interrogated Church, a team of attorneys mounted an effort to track down his whereabouts. Twelve hours later, after making a “major stink” at government offices, the attorneys were finally told about Homan Square. One attorney eventually gained entrance to the facility to speak with Church, who was later taken to a nearby station for booking.

Vic Souter, another NATO protestor, relayed a similar account of being detained without public notification and getting interrogated by police at Homan Square. Souter recalled that eighteen hours passed before she was allowed to speak to an attorney.

These instances of interrogation without legal representation suggest police are not respecting rights protected by the Fifth and Sixth Amendments of the U.S. Constitution. The Fifth Amendment requires the police to give Miranda warnings to a person in custody, including information regarding the right to counsel, before an agent of the state can conduct a custodial interrogation.

Furthermore, once someone in custody requests a lawyer, thereby invoking the Fifth Amendment right to counsel, that person cannot be questioned until they have had the opportunity to consult an attorney. If a government agent does not follow this procedure, information gleaned during an interrogation is not admissible in a court of law.

Further, the Sixth Amendment ensures the right to effective assistance of counsel to those being criminally prosecuted. This right to a lawyer is triggered once the state begins criminal proceedings against a suspect.

The Fifth and Sixth Amendments help restrict offensive police interrogation methods, strengthen the reliability of confessions, and protect the free choice and dignity of those being held in custody. Notably, however, since criminal proceedings do not begin unless a suspect is formally charged, an arrest itself does not necessarily trigger Sixth Amendment safeguards. Similarly, the Fifth Amendment protections to counsel do not gain teeth unless the government intends to submit evidence at trial that was obtained during a coercive interrogation. Therefore, police can technically skirt constitutional guarantees to counsel by, for instance, leveraging information obtained through coerced confessions in order to convince a suspect to enter a plea bargain. This technique is especially impactful since it is estimated that over 90% of cases end in plea bargains.

In such instances where a confession has been obtained before the start of a criminal prosecution, and a plea bargain has eliminated the need for the prosecution to submit evidence acquired during an interrogation, the Fifth and Sixth Amendments’ role in regulating police behavior are made ineffectual.

Officers are provided an additional degree of flexibility to conduct interrogations because they are permitted to hold suspects for up to 48 hours before presenting them to a judge. However, police are also expected to bring suspects to court “without unnecessary delay.” Moreover, the Chicago Police Department’s directive pertaining to “arrestee and in-custody communications,” instructs that “arrestees will be permitted to make a reasonable number of telephone calls to communicate with their attorney, family or friends within a reasonable period of time after arrival at the first place of custody.”

Although courts have not officially defined “reasonable” in the context of this “arrestee and in-custody communications” policy, U.S. District Judge Milton Shadur issued an injunction in 2002 in which he ordered police to permit witnesses to access lawyers immediately. Despite favorable factors weighing against police restricting access to counsel, a number of additional former detainees and lawyers have relayed details of possible police misconduct at Homan Square.

For example, a man named Brock Terry was taken to Homan Square in 2011 after police found him with five and a half pounds of marijuana. Police interrogated him for three days without making public notice, booking him, or giving him the opportunity to have legal counsel. When his friends and family called police stations for information, they were unable to determine his whereabouts.

An attorney on an unrelated case also reports that in 2013 she was unable to find her client for six to eight hours, during which time every government agent she spoke with said they had never heard of him. However, her client later turned up in the hospital with a head injury that he said was caused by officers who interrogated him at Homan Square.

Further, three men named Kory Wright, Deandre Hutcherson, and David Smith report being held at Homan Square in 2005 over suspicion of drugs-related crimes. Smith and Hutcherson say that they were not booked, not read their Miranda rights, nor allowed to make a phone call. Hutcherson also reports that while he was getting interrogated, a police officer turned the heat up in the room, punched him in the face multiple times, and stepped on his groin.

Ultimately, although police interrogation is an important investigative tool in solving crime, the above accusations demonstrate that some Chicago Police Department officers may be improperly overbearing the will of suspects through overly coercive methods. While it may be impossible to prove all of these allegations, if police officers are permitted to take suspects to Homan Square and interrogate them without counsel, the most vulnerable persons in the community will be left at risk of abuse. Church and Souter were lucky enough to know their rights, and have attorneys rally behind them, yet even they were negatively impacted by potentially abusive police conduct. It is, therefore, not hard to imagine the rights of the less privileged getting encroached upon more frequently, and to an even higher degree.

A singular focus on Homan Square, moreover, may obscure a broader citywide—or even nationwide—problem of police not respecting the rights of citizens. If steps are not taken to combat police misconduct, the rule of law in this country will be weakened, and the oft-voiceless most vulnerable among us will be the first to suffer the consequences.