Special prosecutor seeks to resign from Burge cases

For more than two decades, the Cook County state’s attorney’s office has been conflicted from handling certain cases involving former Chicago police Cmdr. Jon Burge or detectives working under him, with an outside prosecutor or other agencies stepping in to try the cases instead.

But more than 30 years after Burge was fired from the Chicago Police Department as allegations of torture began to come to light, some cases may end up back under the purview of State’s Attorney Eileen O’Neill Burke – though not before a judge untangles knotty questions about whether a conflict of interest still remains.

Even though Burge died nearly eight years ago, the long tentacles of the scandal continue to reverberate at the Leighton Criminal Court Building, where defendants alleging that they were tortured continue to fight for their innocence.

The most recent issue has emerged because Robert Milan, a special prosecutor handling a number of the cases, has informed the court that he would like to withdraw after he was appointed in 2017 to oversee the cases in lieu of the county’s top prosecutor.

In his motion to withdraw, Milan wrote that the “Cook County state’s attorney’s office … is ready, willing and able to assume prosecutorial responsibility for each of these cases.”

But the court filing set off a flurry of motions and hearings before Judge Erica Reddick, the presiding judge of the court’s criminal division, as some attorneys cited concern over how the change would impact ongoing cases and whether or not a conflict still precluded Cook County prosecutors from handling the matters.

And Milan’s requested withdrawal has presented other thorny issues. In one case, attorneys have said they have unmet needs around evidence production. In another, a defendant is asking the judge to conduct an inquiry into Milan.

“It’s incredibly complicated,” said Candace Gorman, who represents one of the defendants in the cases involved. “I think (the judge) has got a lot on her plate to figure out.”

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Reached by email, Milan told the Tribune he could not comment on pending litigation.

A representative from Burke’s office confirmed it is prepared to take over the cases if that’s what the judge decides, but said the office could not comment further on pending litigation.

Reddick is now tasked with deciding whether to allow Milan to withdraw right now, and if so, whether to return the cases to Burke’s office or appoint a new outside prosecutor.

“An analysis must be done on whether or not there is a conflict with the current Cook County state’s attorney,” attorney David Owens said during a hearing in August.

Milan has secured a new job as an assistant state’s attorney in Will County, according to hiring records obtained by the Tribune in a public records request. His start date was set for June 15, according to his offer letter.

Special prosecutors can be appointed by a judge because of a conflict of interest with the sitting prosecutor, or simply due to the perception of a possible conflict or appearance of impropriety. The Tribune has previously detailed how these appointments often lack transparency, even though they hold immense power and can be lucrative for private attorneys.

For most of the cases, a former Cook County judge appointed a special prosecutor because of a conflict of interest for then-Cook County state’s attorney Richard Devine, whose former law firm had represented Burge when he was in private practice.

In addition to the conflict issue, Reddick has a number of other pending motions before her.

In one case, attorneys are arguing that Milan’s withdrawal comes at an inopportune time because they have been pressing for evidence production from Milan about what they believe could be exculpatory information for their client.

And in the motion, they question why Milan was communicating with the state’s attorney’s office about whether it would take over the cases.

“There is zero analysis about whether the conflict of interest found in this case for the CCSAO has now abated,” the motion reads.

In a response to that, Milan wrote that he believes the conflict with the state’s attorney’s office no longer exists given that Devine and his successor have since moved on. The response also noted that some other Burge-related cases have also since been returned to the prosecutor’s office.

Regarding the evidence production claims, Milan wrote that any such litigation issues would be resolved by a judge regardless of who served as prosecutor.

Another defendant, Clayborn Smith, has added an additional wrinkle to the matters Reddick must rule on.

In a motion filed in August, Smith’s attorney Steve Greenberg asked Reddick for an inquiry into Milan’s conduct while handling the case, alleging that he served in a conflicting role as an expert witness on behalf of police officers accused of wrongdoing in federal civil cases.

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“There is a question as to whether the prosecutor has concealed information that should have been disclosed. There is a question as to whether the prosecutor has been working in cahoots with defense lawyers representing police officers in civil suits,” Greenberg’s motion reads. “There is a real question as to whether the special prosecutor has been exercising the kind of independent and objective judgment that he was appointed to exercise.”

In a response, Milan denied that he has been retained as an expert witness, arguing that he “is not being compensated for his time or his testimony and will not be testifying about the particular facts of this case or any other case.”

Rather, he wrote, he was called as an “occurrence witness” to testify about his knowledge about some defense attorneys who worked with the administration of former State’s Attorney Kim Foxx.

A federal judge in a court order in July declined to exclude Milan as a witness in a federal civil suit, finding that his testimony is relevant and not subject to a conflict of interest.

“Moreover, any review of OSP’s strategy, tactics and decision-making in defendant Smith’s case will show that OSP diligently, effectively and ethically represented the People of the State of Illinois,” Milan wrote.