A travesty of
justice that Kim Foxx can and should fix
By Rob Warden
He’s 47 and
he’s suffered for 23 years under the yoke of a Kafkaesque injustice.
I won’t mention
his name here to avoid embarrassing him with friends, neighbors, and
co-workers, who know not of his plight. I’ll just call
him K. But I am sending details of his case to Cook County State’s Attorney
Kimberly Foxx’s Conviction Integrity Unit, in the hope that the tragedy that
befell him, as described below, will be mitigated.
In April 1996,
an 8-year-old girl accused K, then 24, of sexually molesting her a year or two
earlier while she and her older sister were in the foster care of K’s mother in
suburban Tinley Park.
K initially
denied the allegation—but after an all-night interrogation signed a statement
confessing to the crime.
Why, if
innocent, would he confess?
K suffers from
acute learning disabilities, making him especially vulnerable to high-pressure
police interrogation techniques. It’s doubtful that he understood the Miranda
warning he was given or, for that matter, the ramifications of signing the
confession—which he says he did in a state of fear and exhaustion.
False
confessions are a familiar phenomenon—they occurred in nearly a third of 236
Cook County cases in which convicted defendants have been exonerated in the
last three decades.
So that K’s
confession was false is understandable, and it’s easier yet to understand why
he would plead guilty in 1997 to a single count of criminal sexual assault ⎯ a crime that
13 years later the purported victim would testify hadn’t happened.
Had K exercised
his right to a trial, his conviction and a prison sentence were virtually
inevitable—but under his plea agreement he received just four years’ probation.
The plea
rendered him a convicted sex offender—which was greatly preferable to prison.
The purported
victim’s motive for falsely accusing K is less intuitive, but nonetheless
clear.
K’s mother and
step-father separated in 1995, whereupon K and his mother moved into a small
apartment where there was no room for foster children.
The Department
of Children and Family Services moved the sisters into another home—where,
according to affidavits they provided in 2010, they were beaten, verbally
abused, and punished by, among other things, being denied food.
The younger
girl described the K’s parents’ home as “the best” of 15 foster homes in which
she had lived during her years as a ward of the state and the new home as “the
worst.” Her sister echoed those sentiments, describing the former as “a nice
atmosphere,” in contrast to the latter, where their foster mother frequently
beat them, forced them to “kneel on dried rice for hours at a time,” and once
“locked me standing up in a pantry overnight.”
In 1996,
according to the younger girl’s affidavit, her foster mother falsely accused
her of “inappropriately” touching the foster mother’s natural daughter. The
foster mother “became angry and started screaming at me,” the affidavit said.
“She said that [K] had done this to me, that I had learned the behavior from
him. I denied this, but [she] pressed the issue. [She] hit me. I remember how
terrified I was. I finally gave in, even though I was 100 percent certain that
[K] never touched me inappropriately.”
Thus began K’s
Kafkaesque nightmare, followed by his confession and guilty plea.
In 2010, K’s
accuser, by then 22, recanted in a telephone call her sister arranged with K’s
mother and soon thereafter provided the affidavit quoted above and corroborated
by her sister’s affidavit.
Because K’s
case was procedurally defaulted and because he was not in custody, he had no
remedy in the courts—his only hope for justice is a gubernatorial pardon based
on innocence.
The
Northwestern Law School Center on Wrongful Convictions petitioned for such a
pardon, but the prosecution—under State’s Attorney Anita Alvarez—opposed it, in
keeping with the office’s longstanding, albeit wrongheaded, policy of rejecting
relief predicated on recantations.
Kim Foxx
defeated Alvarez in 2016, thanks to voters who came to realize that the
incumbent had failed miserably in her primary responsibility to fairly
prosecute criminals and move with dispatch to exonerate the wrongly convicted.
Foxx promised a
new deal.
K’s case is an
opportunity for her to show she meant what she said.