On Point - A New Take On Legal News

Officers' Silence Pays Off In Misconduct Case

Michael Evans

An appeal in a Chicago police misconduct case will focus on whether officers can invoke the Fifth Amendment in pretrial proceedings and then testify at trial without being impeached for their prior assertions of privilege.

A federal jury earlier this month ruled that 10 officers did not frame Michael Evans for the rape and murder of a 9-year-old girl in 1976. Evans, 47, served 27 years in prison before he was released in 2003 based on DNA tests that showed he was not the source of semen recovered from the victim.

The officers all worked at Area 2, a notorious Chicago police station where suspects were allegedly tortured. Citing a special prosecutor's investigation of Area 2, eight defendants took the Fifth at their original depositions in Evans' civil rights case.

But with the investigation winding down, all of the defendants chose to waive their Fifth Amendment rights and testify at trial. And over the objections of Evans' lawyers, U.S. District Judge David H. Coar ruled that the jury could not draw any “adverse inferences” from the prior assertions of the privilege against self-incrimination.

"The jury did not hear that eight of these police officers took the Fifth the first time they were asked about this investigation," Jon Loevy (Loevy & Loevy, Chicago), lead counsel for Evans, said.

In court documents (see below), Loevy has argued that the officers asserted the privilege to avoid pretrial discovery. By avoiding impeachment at trial, they, in effect, got to have their Fifth Amendment cake and eat it, too.

Another area of concern involves Judith Januszewski, the only eyewitness to link Evans to the slaying of Lisa Cabassa on Chicago's South Side. Evans alleged that the officers manipulated her into identifying him as one of the two men she saw struggling with the girl on a street corner.

One juror, Olaseinde Sapara, said after the trial that Januszewski came up with Evans' name, not the police, giving them probable cause to arrest him. But Januszewski testified that officers said the name “Michael Evans” before she ever identified him.

“I know one thing: Justice was not done,” Sapara admitted to the Chicago Sun-Times, going on to say that “All of us, I believe, knew a lot of police misconduct took place.”

Evans, who received the maximum $160,000 from a state compensation fund for his wrongful imprisonment, was seeking about $60 million in damages. During the trial, he rejected a $2.7 million settlement offer.

Evans v. Chicago Court Documents

By Matthew Heller
8/23/06

Probate Ruling Punishes Good Samaritans?

By broadly interpreting a law designed to protect the elderly from abusive caregivers, a divided California Supreme Court may have ended up punishing Good Samaritans who provide care to the elderly out of friendship.

The decision in Bernard v. Foley bars two friends of a widow from inheriting the “lion's share” of her $448,000 estate. Camille Bosco changed her will three days before she died to name both James Foley and Ann Erman as 50 percent residual beneficiaries.

A provision of the California Probate Code enacted in 1993 lists a “care custodian” of a dependent adult among those who cannot validly benefit from a will. A “catchall” provision of another statute defines “care custodian” as a “person providing health services or social services to elders or dependent adults.”

Foley and Erman, who cared for Bosco during the two months before her death, argued that the 1993 law did not apply to them because they acted as personal friends of the widow rather than in a professional or occupational capacity.

The Supreme Court split 4-3, with Justice Kathryn M. Werdegar writing for the majority that “neither the statutory language nor the legislative history supports a preexisting personal friendship exception to [the law's] presumptive disqualification of care custodian donees.”

In a dissent, Justice Carol A. Corrigan said the catchall provision of Welfare and Institutions Code Section 15610.17 should be “fairly interpreted” as covering only those who “provide care or assistance through some formal relationship.”

“In terms of public policy, it seems unwise to penalize Good Samaritans by making them less eligible to receive the gratitude of those they help, the kinder they have been,” she concluded.

By Matthew Heller
8/23/06