By Mark Karlin. This article was first published on truthout.
On February 17, 2007, an intoxicated off-duty Chicago police officer, Anthony "Tony" Abbate walked behind the bar of Jesse's Shortstop Inn and pummeled, punched and stomped 125-pound bartender Karolina Obrycka. Her "crime" was to refuse serving any more liquor to the burly Abbate because he was too drunk.
That unprovoked beating by Abbate led to a precedent-setting finding this November by a federal court jury in Chicago that the city, the Chicago Police Department (CPD) and Tony Abbate had engaged in a "code of silence" to try and minimize the incident, protect Abbate and prevent justice from being served to Obrycka.
As a local ABC News reporter concluded in February of this year, after US District Judge Amy St. Eve ruled that there was enough evidence and grounds for a trial to proceed, that the case could – and ultimately did - expose "the blue curtain, an understanding between police officers that they should cover for each other unconditionally and that testimony against a fellow cop amounts to a betrayal of their fellow bond. It is the underbelly of a police subculture that is rarely exposed to this day."
The case that finally came to trial this winter was a civil suit, since Abbate had first been charged with no more than a misdemeanor, but then was eventually convicted of aggravated assault. Yet, he only received two years probation, no jail time. And it is very possible that Abbate might not have been criminally prosecuted at all had a videotape of the entire incident not appeared on YouTube shortly after the brutal beating, forcing the hand of the Chicago Police Department and city to respond to the public outrage.
From the get-go, Judge St. Eve was presented with compelling evidence. This included the initial police report by two officers which omitted mention of a videotape that detailed the brutality, didn't mention that Abbate was a Chicago police officer, and minimized the violence, which resulted in an initial misdemeanor charge that was dismissed. In addition, a Chicago Streets and Sanitation worker came to the bar later on the evening of the assault and tried to buy Obrycka's silence. Shortly after the attack, journalists who came to the Grand Street precinct were threatened with arrest in order to keep them from gaining access to Abbate, who worked from that station.
Other details of the "blue curtain" being used to assist Abbate emerged over the course of five years – along with the city's apparent tolerance for the "code of silence" that appeared to extend into other departments besides the CPD.
In her February pre-trial ruling that the case should move forward despite a request for dismissal from the City of Chicago, Judge St. Eve cited several compelling grounds for having a jury decide whether the "code of silence" had impacted Obrycka’s rights. According to the Chicago Sun-Times:
St. Eve also noted testimony from Steven Whitman, a statistician hired as an expert by Obrycka’s attorneys. Whitman found the rate of complaints of police brutality sustained by the police department was far lower in Chicago than in other cities.
Whitman found Chicago sustained as few as 0.5 percent of complaints in 2004, compared to a national average of 8 percent, according to a 2006 report by the Bureau of Justice Statistics. In the Grand-Central District, where the incident took place, not one of the 147 excessive force complaints filed between January 2005 and February 2007 was upheld.
Terry Ekl, Obrycka’s attorney, welcomed the chance to move ahead with the case. “The trial of this case will expose the extent to which the CPD will go to impede the proper investigation of police office misconduct,” he said.
Ekl succeeded in his groundbreaking case when the jury, in November, found for the plaintiff and awarded Obrycka $850,000. According to Locke Bowman, Professor of Law and Director of the Roderick MacArthur Justice Center at Northwestern University School of Law, Judge St. Eve had instructed the jury that there were two criteria to consider if they found for the plaintiff, either of which would be sufficient: Did the City of Chicago knowingly, even if tacitly, accept a "code of silence" in the CPD? Did the City of Chicago have a widespread policy of failing to discipline officers who violated the rights of citizens?
The case should have ended with the verdict on behalf of Obrycka. As Bowman indicated to Truthout, it would be a better use of taxpayer dollars to try and clean up police abuse and end the "code of silence" than pursuing an appeal. But Chicago Mayor Rahm Emanuel had other things in mind – and that is when the case took a turn toward the bizarre.
Emanuel instructed the city attorney's to try to vacate the jury finding that was based on a "code of silence" in the CPD and lax city oversight of officers. Meanwhile, early in December the city agreed to pay Obrycka the $850,000 judgment up front if she would not contest the efforts to basically erase the jury verdict. Obrycka, apparently, needed the money and agreed. It was a novel, brazen, and illogical legal move: the city was agreeing to the jury's award, but wanted to delete from the legal record the finding and the evidence that it was based upon.
As quoted in the Chicago Tribune, "What Emanuel is really seeking, University of Chicago law professor Craig Futterman said, is a 'code of silence on the code of silence.'"
Emanuel justified the city's appeal by asserting that the department now has new standards, a new internal investigation process, and a new superintendent.
However, the police department employee, Debra Kirby, who oversaw internal review of the case in its early unfolding – and is contended to have minimized it -- has been promoted upwards since then. As to improvements in the CPD reducing police brutality and the violation of civil rights, Locke Bowman told Truthout, "I have yet to see a case where one Chicago Police Officer testifies that another Chicago Police Officer did something wrong, unless compelled by a grand jury or other legal means to do so. I continue to believe today that the 'code of silence' is alive and well inside the Chicago Police Department."
"The jury for the first time in anyone's memory specifically found there is a policy of employing a code of silence," Bowman said. "It's terribly important."
Meanwhile, Emanuel claimed that with a new superintendent of the CPD and improved internal review, the jury's findings (but not their financial award) needed to disappear. Chicago's WBBM Newsradio indicated the paradox of Emanuel's legal strategy:
WBBM Newsradio Political Editor Craig Dellimore reports the city has agreed to quickly pay Karolina Obrycka and her attorneys the $850,000 the jury awarded her, in return for an agreement that the city would not accept fault for the beating, and the jury’s findings could not be used against the city in other cases….
The city and Obrycka’s attorneys are asking a judge to set aside that verdict, as part of their deal to pay Obrycka the $850,000 she was awarded right away. The city would forego any appeals of the jury’s financial award to Obrycka, in exchange for not being held legally responsible for the beating....
“By reaching this agreement, the plaintiff gets certainty and an immediate payment of the jury’s award. From the city’s perspective, vacating the judgment eliminates the risk that the judgment will be misused in a way that hinders the city’s ability to defend itself in future cases,” city Law Department spokesman Roderick Drew said in an emailed statement.
One could argue that the translation for Emanuel's position is that the Chicago Police Department no longer has a "code of silence," but if anybody sues the city because of the "code of silence" that might still be there, the city would have to pay a lot of money out.
On Thursday December 20, Judge St. Eve delivered a stinging rebuke to the city which had argued for nearly six years – including Emanuel's current period as mayor - that the charge of a "code of silence" needed to be litigated, not settled, as a matter of principle to defend the reputation and legal strategy of contesting civil rights and police brutality cases. According to the Chicago Tribune:
A federal judge Thursday turned down the request by Mayor Rahm Emanuel’s administration to erase a jury’s finding that the Chicago Police Department has a “code of silence” to protect rogue officers….
U.S District Judge Amy St. Eve said the city turned down reasonable settlement offers from plaintiff Karolina Obrycka for six years and decided to take the case to trial “knowing that an adverse judgment was a risk.”…
“The judgment in this case has ramifications for society at large, not just the city’s litigation strategies.”
As he viciously assaulted Obrycka, Abbate yelled, "Nobody tells me what to do." But a jury of his peers did just that, as well as send a message to Mayor Emanuel and other cities tolerant of police abuse that the "code of silence" is itself subject to the rule of law.