May 30, 2014 – In 1988, Darrell Cannon signed a settlement agreement allowing him to collect a total of $1,247 against the City of Chicago, Chicago Police, and the various police officers that allegedly tortured him until he confessed to a 1983 murder.
Recently, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit ruled that the 1988 settlement agreement precludes Cannon from relitigating his civil case, distinguishing a police cover-up case from Milwaukee that began in the late 1950s.
In Cannon v. Burge et al., No. 12-1529 (May 27, 2014), the three-judge panel rejected Cannon’s claim that the settlement agreement – which released the defendants from any future claims arising out of the 1983 police torture incident – should be invalidated.
In its decision, the panel noted instances of police torture and judicial bribery, perjury and obstruction, and said the case “casts a pall of shame over the City of Chicago.”
Chicago Police Torture Scandal
At the time Cannon was arrested for the 1983 murder of Darrin Ross, the Chicago Police Department contained bad seeds. Members of the police department’s Area 2 Violent Crimes Division allegedly engaged in torture methods to procure confessions.
The division’s lieutenant was John Burge, who eventually became Commander of the Chicago Police Department but was fired in 1993 for employing torture tactics.
Burge was later sentenced to almost five years in prison for lying in civil cases brought by African American plaintiffs who alleged Burge led the torture-for-confession campaign. In the appeals court opinion, Judge Ilana Rovner said the infamous Jon Burge is “a man whose name evokes shame and disgust in the City of Chicago.”
In 1983, Cannon was a “general” in the El Rukn street gang. Cannon had been recently paroled from prison after serving 12 years on a murder conviction for which he was sentenced to 100-200 years imprisonment. Now Cannon was back in the game.
Cannon was driving a car down a Chicago freeway. One of his fellow gang generals was in the back seat with Ross, who apparently stole drug money from the gang. Cannon's cohort murdered Ross in the back seat with two gunshots to the head. They drove to a field at a nearby housing complex and ditched Ross’s body.
Shortly after, officers in the Area 2 Violent Crimes Division arrested Cannon. Sergeant John Byrne and detectives Peter Dignan and Charles Grunhard allegedly proceeded to torture Cannon until he confessed to knowingly participating in the murder.
Cannon would later admit that he drove the car, but did not know his cohort intended to murder Ross, and his actions after the murder were a product of pure shock.
Cannon said the officers beat him on the knee with a flashlight, played “Russian Roulette” by placing a shotgun in his mouth and pulling the trigger, and applied an electric cattle prod to his testicles and his penis, all while offering race-based taunts.
Cannon filed a motion to suppress his confession in the murder case. All the officers involved denied that they tortured Cannon. The motion was ultimately denied. In 1984, Cannon was convicted for Ross’s murder, in part based on his confession.
At the same time, Cannon filed a complaint with the Chicago Police Department’s Office of Professional Standards (OPR). The complaint went nowhere, as officers continued to deny that torture was involved in procuring Cannon’s confession.
In 1990, Cannon was among 50 African American suspects identified by the OPR as tortured by the Area 2 police crew over the course of 13 years. OPR found the torture to be “systematic” and carried out at remote sites, in addition to interrogation rooms. But Cannon was not privy to this evidence when he filed his first civil rights claim.
Cannon Fights, Wins
In 1986, Cannon filed complaint in federal court, alleging the officers deprived him of his rights by torturing him. He sought compensatory and punitive damages.
At the time, Cannon and his court-appointed lawyer believed that torture and abuse by the same officers was pervasive against African Americans, but they did not investigate. The attorney believed Cannon, with two murder convictions, should settle his case.
In 1988, the case was settled for a nominal $3,000 nuisance value. After costs and fees, Cannon received $1,247. As part of the agreement, Cannon released all future claims that arose from the torture incident that Cannon was alleging in his lawsuit.
Cannon was also appealing his second murder conviction. Ultimately, his conviction was vacated and remanded to decide whether he voluntarily confessed.
Cannon had presented new evidence that showed the torture could have taken place, including the testimony of 16 other arrestees with similar allegations. He also noted that the judge who ruled on his motion to suppress, Thomas Maloney, was later convicted for accepting bribes and fixing murder cases during the time that Cannon went to trial.
Cannon received a new suppression hearing. But before the court could rule on it, he pleaded guilty to lesser charges of armed violence and conspiracy to commit murder. Cannon believed that with credit for time served, he was eligible for release in 2003.
Cannon Fights Again, Wins
Because of the guilty plea, the Illinois Prisoner Review Board concluded that Cannon violated his parole in his first murder case and determined he would not be eligible for parole until 2064, which was 61 years past what was stipulated in his plea agreement.
Ultimately, Cannon moved to vacate his plea based on ineffective counsel. He said his lawyer did not investigate the effect of the plea on his parole status. The state, to honor the plea, agreed to dismiss the armed violence and murder conspiracy charges.
The state said Cannon was factually guilty, but dismissed the charges because both sides believed that Cannon would be eligible for release in 2003 if he pleaded guilty.
Despite this, the Illinois Prisoner Review Board asserted that Cannon was still in violation of his parole based on the evidence in the Ross case. The board reviewed the evidence without consideration of the confession and came to the same conclusion.
Cannon sued the Illinois Prisoner Review Board, and the court ordered a new hearing. On reconsideration, Cannon was released on parole, 23 years after his arrest in 1983.
By this time, Cannon revived his claims against the City of Chicago, the Chicago Police Department and individual officers he accused of torturing him back in 1983.
Cannon Loses
Cannon had instituted a 42 U.S.C. §1983 claim, seeking damages for deprivation of a right to fair trial, false arrest and imprisonment, torture and physical abuse, and coercive interrogation. The federal district court ruled that the suit was precluded. That is, the court ruled that Cannon was barred from bringing the suit by his 1988 settlement.
The Seventh Circuit Court of Appeals affirmed, based on Illinois contract law. The settlement agreement was unambiguous, the panel ruled, and Cannon was not induced to sign it based on fraud because he knew the facts surrounding his own alleged torture.
According to the court, contracts are voidable if there was fraud-in-the-inducement. The inducing party must make a false misrepresentation of material fact that induces the party to enter the contract, and the other party must rely on the misrepresentation.
Although the officers may have been lying about their actions at the time, Cannon knew it when he entered into the 1988 settlement agreement, the panel noted.
“In determining whether Cannon reasonably relied on the defendant’s lies, we must take into account all of the facts which Cannon knew, as well as those facts that Cannon could have learned through the exercise of ordinary prudence,” Judge Rovner wrote.
Cannon said he directed his lawyer to investigate other instances of torture, but his lawyer did not investigate or question the officers about other instances.
“Cannon has failed to raise a genuine issue of material fact regarding the reasonableness of his reliance on the officers’ false statements … especially in light of his failure to seek additional information in the original litigation,” Rovner explained.
The court also distinguished a Milwaukee police cover-up case, which began in 1958 when a Milwaukee police officer shot and killed Daniel Bell, an African American man who had been pulled over for a broken tail light.
The cops said Bell lunged at them with a knife, ran from the scene, and fit the description of a man who had committed an armed robbery nearby. In fact, none of that happened, and police planted a knife in Bell’s hand.
That whole story was a lie, made worse by the cover-up that ensued. The Bell family sued the City of Milwaukee but the case was declared a mistrial. The case was reassigned, and Bell’s father agreed orally to settle for $1,800 but changed his mind and refused to sign the agreement or accept the check from the city.
About 20 years later, one of the officers involved admitted the cover-up. Bell’s family sued on Bell’s behalf for a deprivation of civil rights by the City of Milwaukee.
Ultimately, the federal courts ruled the former settlement agreement was binding to bar suit, but there was sufficient fraud-in-the-inducement to invalidate the settlement.
“[I]n Bell’s case, there was an immediate top-down cover-up of the facts, with higher ranking officers and the district attorney directing the wrong-doers to synchronize their stories,” explained Rovner, noting the cover-up presented a road block to the Bells' suit 20 years earlier.
“In contrast, at the time that Cannon settled his case and signed the 1988 Stipulation, so far as the record reveals, there was not yet a cover-up of Cannon’s case by higher ranking officials. Cannon has no evidence that the defendants actively discouraged him from seeking discovery or learning the truth, as happened to Bell’s family when they approached the police for an explanation of Daniel’s death,” Judge Rovner wrote.
The appeals court noted that others who brought civil cases stemming from the Chicago torture scandal “pursued their claims with more vigor than Cannon and eventually uncovered the broader police torture scandal involving Jon Burge” and his minions. (According to one report, Chicago has paid more than $85 million in settlements).
However, the court noted that Cannon’s lawyer had advised him to settle at the time because of Cannon’s credibility problem. He had already been convicted of murder twice.
The court also rejected Cannon’s claim that upholding the 1988 settlement would be unconscionable. “What the officers did to Cannon was unconscionable; the formation of the settlement agreement was not,” the three-judge panel concluded.
