Why I’m asking for a mayoral candidate (and 12 others) to be held in contempt of court

In case you’re writing a news story and would like to speak with me about these matters, please reach me via phone—I have the encrypted app “Signal”—at 740-505-0038 or via email at hey@brandonsmith.com. Here is the press release my attorneys and I have dropped.

In case you don’t know me, I’m the journalist who sued the city of Chicago in 2015, forcing the government to release the video of Laquan McDonald being shot and killed by former police officer Jason Van Dyke, who was convicted on a charge of second degree murder in October 2018. I am currently reporting for ProPublica and split my time between Chicago and Washington, DC.

I’d like to explain two legal motions my attorneys, Matt Topic and Josh Burday, recently filed on my behalf in ongoing cases regarding the murder of Laquan McDonald and documents that surround it. I feel it necessary to explain myself because journalists don’t usually ask a court for judgement for or against someone. We’re generally here to report, not to advocate. I’m doing so now only because I believe the future of the Illinois transparency law to be at stake. The violators of this law in this case are blatantly flaunting it and flaunting a judge’s ruling.

First, Topic, Burday, and I filed a motion today asking judges to vacate a protective order, AKA “gag order,” in a case connected to Laquan McDonald. This will allow my FOIA requests regarding the case (and people involved in them) to be properly processed. The case is commonly known as the “conspiracy” case, People v. David March, et al. This bench trial resulted in acquittal handed down from Judge Domenica Stephenson on Jan. 17. It makes sense that the public be able to view documents surrounding the now-finished case.

The other motion we filed is in our own FOIA case in civil court, where we attempted—and won a judge’s order—for people involved in the Laquan case to search their text (SMS) and email records from personal phones and email accounts. (City-issued devices and accounts had already been searched at court order years ago, and didn’t produce too much news.) Judge Raymond Mitchell ruled in our favor on August 2, 2018, ordering the individuals we know were involved in the Laquan McDonald matter to conduct these searches. Here’s what these people actually did:

  • 10 of 18 individuals, including Jason Van Dyke, Garry McCarthy, and John Escalante, said they wouldn’t do the search, in defiance of the judge’s order.
  • 3 of 18 didn’t respond to the city’s repeated contacts informing them of the order and their requirement to search.
  • 3 of 18 seemed to perform searches and claimed to have found no responsive records, i.e. records about the Laquan case.
  • 2 of 18 could not be located or contacted to inform them of their court-ordered duty.

On my behalf, on January 15, 2019, my attorney (Matt Topic) wrote the attorney for the city of Chicago, Amber Ritter, asking:

“Can you confirm that you informed all of these people that the Court ordered them to provide any responsive records to the City? Is there any more detail you are able to provide about precisely what you said and what they said?”

Ms. Ritter’s response:

“I can confirm that I informed all of these people, or their attorney as indicated, about the contents of the order.”

The detail Ritter provided for each person, included in the list I’ve made below, is the only detail she was willing to give.

At least 13 people, including a current mayoral candidate—former police superintendent Garry McCarthy—are defying a judge’s order and they know it. Civil contempt of court in Illinois can mean a jail sentence until the jailed person agrees to comply with the order.

If I said nothing in response to this behavior, it might send the message that I don’t care about the Illinois FOIA law. Clearly I believe in the power of the Illinois FOIA. Since 2014, I’ve battled the city of Chicago for violating the FOIA in maybe half a dozen cases (depending on how you count them). In service to trying to uphold this law and obtain documents for stories in the public interest, I’ve spent hundreds of hours reading often, um, dry, legal material. My attorneys have risked their work product, because I typically don’t pay them myself. I believe, and a lot of evidence backs it up, that this law affords every Illinois resident a power over those who govern them that no other law, rule, or norm does. Luckily, journalists typically allow one another to advocate for transparency, as I’m now doing.

(To be clear, in addition to transparency, I’m comfortable with journalists advocating for a few more basic things, including an evidence-based approach to governing; democracy; fairness; and equal justice under the law.)

I don’t know why these people are refusing this judge’s order. But as a journalist, I’m put in a strange situation. I have to report back to the judge that these people have refused to search as they’ve been ordered to. Typically with such a report, a plaintiff and their attorney will recommend to the judge what course of action the plaintiff prefers. I don’t want to allow these respondents’ blatant disregard for the FOIA to be the crack in the dam that allows it to disintegrate. If I want to not risk weakening the transparency law, the respondents—including mayoral candidate Garry McCarthy—have essentially tied my hands. I must recommend they be held in contempt.

I am told judges typically issue a daily fine for transparency-related contempt rulings, prior to the ultimate penalty allowable, which is jail time.

If it was these peoples’ intention to make me advocate for something publicly, I suppose they have succeeded. And yet for this advocacy, I’m not and won’t be made ashamed. I know I wouldn’t be allowed to blatantly ignore a judge. These people—maybe especially the mayoral candidate, given the public status of his personal ethics—shouldn’t get to choose whether or not they follow a court order.

 

Responses per individual

Jason Van Dyke — Via his attorneys, said he is “not willing to search for or produce any such records.”

Garry McCarthy — Police superintendent at the time of Laquan’s murder, and current mayoral candidate. Did not respond to Ritter’s request asking him to search as of January 15, 2019.

John Escalante — As of Dec 18, 2018, Mr. Escalante, formerly acting CPD superintendent and current police chief at Northeastern Illinois University, told CPD’s lawyer that “At this time I will not be conducting a search of my private emails or text messages.”

Joseph Walsh — Van Dyke’s partner the day Laquan was murdered. Walsh is represented by attorney Tom Breen. Breen initially told Ritter that he “doubted that his client would be willing to search for or produce any such records, but that he would call me back if that was not the case. Since that time, I have called him multiple times and left messages asking for a return call, and he has not called me back.”

David March — March is represented by attorney Jim McKay. McKay initially told Ritter that he “doubted that his client would be willing to search for or produce any such records, but that he would call me back if that was not the case. Since that time, I have called him multiple times and left messages asking for a return call, and he has not called me back.”

Thomas Gaffney — Says via personal attorney Will Fahy that he is not “willing to search for or produce any such records, and cited (his) Fifth Amendment rights.”

Joseph McElligott — Says via personal attorney Jennifer Russell that he is not “willing to search for or produce any such records.”

Dora Fontaine — Says via personal attorney Jennifer Russell that she is not “willing to search for or produce any such records.”

William (Bill) Bazarek – A CPD attorney during and after Laquan’s killing. Says he has no responsive records after a search of his private emails or text messages.

Martin (Marty) Maloney – Declines to run a search.

Lecia Velez — Says via personal attorney Will Fahy that she is not “willing to search for or produce any such records, and cited (her) Fifth Amendment rights.”

Arturo Becerra — Told city attorney Amber Ritter that he “does not have any responsive records.”

Ralph Price – Per city attorney Ritter: “I cannot locate any contact information for him – his last known phone number with the HR departments is disconnected (same number on the ARDC website) and I can’t find him online, either personally or professionally.”

James Roussell — Apparently this man is a “custodian” of some potentially-responsive records but the city’s attorney has not yet let us know whether his records have been, or will be, searched.

Janet Mondragon — Via her attorney, Jennifer Russell, said she “would not be willing to search for or produce any such records.”

Daphne Sebastian — Via her attorney, Jennifer Russell, said she “would not be willing to search for or produce any such records.”

Ricardo Viramontes — Via his attorney, Jennifer Russell, said he “would not be willing to search for or produce any such records.”

David McNaughton — Told city attorney Ritter that he has never had a private email account.

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