Publicly, the state’s attorney’s office has remained tight-lipped about why the case against ex-cop John Cichy fell apart last week on the day he was to go to trial, despite evidence that they’d said included surveillance footage of him stealing $20,000 of planted cash from a storage locker.
Now attorneys for two other ex-officers who pleaded guilty in the scheme — and are serving long prison sentences — want answers. State’s Attorney Robert Berlin’s office said it will respond “in a prompt and appropriate manner” but did not specify what evidence might be shared, or when. Berlin said in a statement last week that his office had “insufficient admissible evidence” to convict Cichy, citing “recent developments.”
The reversal in Cichy’s case “will have no impact whatsoever” on the guilty pleas of the other ex-officers, Terrance O’Brien and Matthew Hudak, the statement said.
Heading into trial, the case against Cichy appeared solid, given the other defendants’ admissions of guilt and the evidence, which also included cocaine confiscated from a drug dealer the men allegedly worked with and secretly taped audio recordings of discussions about the scheme, according to court documents and officials. And Cichy was later caught with some of the cash he was seen taking from the storage locker, officials have alleged.
Yet prosecutors ran into obstacles during the five years since the officers were arrested outside Woodfield Mall. Some recorded statements were excluded, the defense was challenging other evidence and a key witness might have been unwilling to testify. And Cichy’s attorney, Jay Fuller, said prosecutors told him there was a discrepancy in the evidence, and that the credibility of a key informant was called into question by his continued drug dealing.
But none of that, on the surface, would appear to be enough to drop the case, according to defense attorneys and a criminal law professor who has no connection to the case.
Professor David Shapiro, director of appellate litigation at the MacArthur Justice Center at Northwestern University’s Pritzker School of Law, called it a “head-scratching” decision.
“I am in no position to know about (Cichy’s) guilt,” he said, “but what’s surprising to me is that there’s a decision not to go forward despite significant evidence.”
The case began when Carol Stream authorities confiscated cocaine from a man who told them he was dealing drugs for three police officers. Authorities said the trio confiscated marijuana and cocaine from dealers, turned in some as evidence and kept the rest to sell.
Working with the U.S. Drug Enforcement Administration, investigators enlisted the dealer as an informant and recorded his conversations with the officers. They planted the $20,000 in a storage unit and had the informant tell the officers it belonged to a drug dealer and how to get into it. The officers were arrested in January 2013 and promptly resigned.
O’Brien and Hudak pleaded guilty the following year and were sentenced to 24 and 26 years. They’re expected to serve about half of that.
But Cichy’s case plodded along while he remained free on bond, at one point posting a video about his religious conversion since his arrest. As recently as last year, prosecutors went back to a grand jury to indict Cichy on 10 additional charges.
But prosecutors had already run into obstacles that weren’t factors in Hudak’s and O’Brien’s cases. For one, they lost an appeal seeking to submit at Cichy’s trial recorded statements from Hudak and O’Brien about their delivery of 120 grams of cocaine to an informant. The statements included apparent references to a marijuana growing operation and various aspects of drug dealing, such as the informant telling Hudak, “I brought you 11 grand in a week, bro.”
Hudak’s attorney, Thomas Glasgow, said the ruling “changed the landscape” of the case, eliminating some of the evidence needed to establish some of the charges.
Second, Cichy’s attorney had filed a motion again alleging late disclosure of evidence, including a police report of another alleged dealer telling police that Cichy told him he could flee to Mexico and get away with it, and writings by Hudak confiscated from his jail cell. Fuller asked that the evidence be barred from use at trial.
Third, prosecutors had planned to call Hudak and O’Brien as witnesses against Cichy. But Hudak apparently wasn’t required to testify as part of his plea deal, and his attorney said he’d advised him to refuse to testify and cite the Fifth Amendment.
But those factors had been known for some time, and defense attorneys didn’t expect them to be deal-breakers. One additional new wrinkle, Fuller said, was a so-called “chain of evidence” problem: Police had reported confiscati0ng six bags of cocaine, but the crime lab that analyzed the evidence found seven bags.
Defense attorneys said that, under the law and ethical guidelines, prosecutors must disclose evidence that might be favorable to the defense.
“Prosecutors have a continuing higher duty to always make sure that evidence used to obtain and sustain a conviction is good evidence,” Glasgow said. As a former narcotics prosecutor in Cook County who said he worked on cases involving undercover investigations, Glasgow said he understands that some information may be sensitive, such as the identity of witnesses or informants.
Their defense attorneys maintain the evidence against Cichy was virtually the same as against the other two police officers, so that any major change should affect their clients as well.
“Let us review everything that led to their decision,” O’Brien’s attorney, Paul DeLuca, said. “If it doesn’t relate to us, fine, we’ll move on. I think as co-defendants, we’re entitled to that.” He added prosecutors have said they will share the information, and if not, he will file a court motion.
Robert Bell, associate special agent in charge for the DEA Chicago Field Division, which participated in the investigation of the three officers, referred questions about the case to DuPage County prosecutors.
But he said: “As investigators, we understand that our role is to investigate and find facts and evidence. Prosecutors take the evidence we provide and make prosecutorial decisions based on that evidence and developments in that case. So we’re very comfortable with that and understand that the rule of law is paramount.”
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