Oral arguments in the case heard Tuesday (1/14/2014) by the Illinois Appellate Court
“This whole case just reeks of police misconduct!” declared Lester Finkle, closing his remarks in oral arguments in the Howard Morgan case before the Illinois Appellate Court Tuesday morning. Morgan, 62, is serving a 40 year sentence after being convicted in a second trial of attempted murder of four police officers. Morgan’s first trial, in 2005, resulted in acquittal of two charges of aggravated battery of a police officer and aggravated discharge of a firearm and a hung jury on the rest of the charges.
A major issue in the appeal is what Finkle has characterized as the prosecution’s “pander[ing] to the basest instincts of the jury by invoking images of dead police officers, funerals, and assassinations… .” Assistant Cook County State’s Attorney Marci Jacobs defended this behavior, charging that the defense had tried to make the case one of police misconduct. The defense, she said, attempted to belittle the injuries suffered by the four officers who shot Morgan 28 times, necessitating the inflammatory remarks of the prosecutor Daniel Groth in his closing remarks. “They want to bring in questions about police misconduct,” ASA Jacobs told the court, prompting Finkle’s response.
This exchange occurred around the challenge of the trial judge’s refusal to allow the defense to query prospective jurors about their attitudes toward police misconduct. Specifically, the defense was not allowed to ask veniremen about their views on an officer charged with shooting other officers, whether they believed a person could be accused of something he did not do, and whether they thought that the police treated people differently based on race. ASA Jacobs charged that the defense wanted to put the police on trial instead of Mr. Morgan.
The courtroom on the 14th floor was packed with people who came to support Morgan’s appeal. It was standing room only in the room, with more than 20 people standing outside and not allowed in, as other supporters filled all the seats and stood around the walls. Among those present was Benjamin Crump, nationally prominent for his defense of the family of Trayvon Martin in Florida, who was murdered by vigilante George Zimmerman. Crump is representing the Morgan family in a civil suit against the City of Chicago and the police Department.
The case revolves around a winter, 2005 traffic stop late at night in the Lawndale neighborhood, a block from Morgan’s family home. Morgan, an African American 13 year veteran police officer for the BNSF Railroad and an 8 ½ year veteran Chicago Police Officer, was pulled over by four young rookie white police officers who, according to the only independent eyewitness, pulled Morgan from his mini-van, threw him to the ground, grabbed the gun he was carrying for his job, and opened fire on him, hitting him 28 times. After he was found to be still alive and taken to the hospital, the police had to explain their actions. They said that Morgan had been driving the wrong way on a one way street with no lights four blocks from where they stopped him, and that when they pulled him over he got out of his vehicle and started shooting at them. Police evidence photographs of the scene showed the lights on the van were on, although the defense was barred from by the judge from pointing that out to the jury.
Questions to Jacobs by two of the three judges on the panel asked suggested they were having trouble buying all of the prosecution’s theory, which was that Morgan shot the police because his own firearm permit had expired a few months earlier. Judges William Henry Taylor II and Robert E. Gordon questioned ASA Jacobs regarding the basis for the original traffic stop. Morgan had testified that he had not taken the route reported by the police and had actually been proceeding along his usual route on Lawndale Ave. to his home when he was stopped. The fact that the police did not pull Morgan over for several blocks after they allegedly saw him going the wrong way on a one way street did not seem to sit well with them. Justice Gordon also objected to ASA Jacobs’ characterization of Lawndale as a “high crime area” in which the four young officers were patrolling at risk to their lives.
Also drawing the attention of the judges was the statement at trial by Prosecutor Groth in his closing argument that Morgan was “angry armed man who tried to kill four police officers who never did him any harm, who swore to serve and protect you.”
“Why are you bringing the jury into this argument?” asked Taylor, questioning why the prosecution thought it appropriate to suggest to the jury that the police were protecting them when they shot Howard Morgan.
Another major issue that was not addressed at today’s hearing concerns the fact that Morgan had been acquitted at his first trial of charges that he had committed aggravated discharge of a firearm. Since all the other charges revolve around this charge, his defense had previously objected to retrying him on the grounds that it constituted double jeopardy, which is prohibited by the Fifth Amendment of the U. S. Constitution. While preserving this issue for subsequent appeal, should that be necessary, the issue was not argued today because the same appellate court had ruled prior to his second trial that retrying Morgan did not constitute double jeopardy. The charges were separate crimes, the court previously ruled.
Argued Tuesday, however, was the refusal of the trial judge, Clayton Crane, to allow the defense to make any mention of the previous trial or the acquittal on three of the eight charges against Morgan, including the discharge of a firearm. Since the appellate court had previously ruled that the firearm charge and the attempted murder charges were separate, and that acquittal on one did not mean double jeopardy in retrying Morgan on the others, the jury should have been allowed to know of the previous acquittal. Crane barred Morgan’s defense from mentioning that that he had been previously acquitted for the conduct that formed the basis for the charges of attempted murder. He wouldn’t even allow the defense to mention that there had been a prior trial. However, as Finkle pointed out, he did allow the State to introduce evidence the regarding the conduct of which he had previously been acquitted. This was among the reversible errors made by Crane and required that the verdicts be set aside and a new trial ordered, Finkle said.
A summary fact sheet of the Howard Morgan case can be downloaded from the Chicago Alliance Against Racist and Political Repression web site, at http://naarpr.org/wp-content/uploads/2013/10/20130506-Morgan-two-sided-flyer.pdf. An even more detailed summary may be obtained by emailing the Alliance at [email protected].