Justice delayed again, union appeals stall cop discipline

Published Sept. 19, 2015

By TIM NOVAK AND CHRIS FUSCO
Staff Reporters

Now that Nanci Koschman has settled her last legal claim over her son David Koschman’s death, one question still unsettled is whether anyone from the Chicago Police Department will face any punishment over the handling of the politically explosive case.

So far, not a single police officer has faced even a reprimand in the two years since special prosecutor Dan K. Webb concluded his investigation into Koschman’s death and into the police department’s failure to seek criminal charges against Mayor Richard M. Daley’s nephew for throwing the punch that killed Koschman 11 years ago.

Webb’s investigation, which he closed on Sept. 18, 2013, led to Richard J. “R.J.” Vanecko pleading guilty to involuntary manslaughter and serving two months in jail.

The former U.S. attorney said he also considered charging six police officials and detectives with official misconduct or obstruction of justice but decided there was “insufficient evidence” to convict them.

At Mayor Rahm Emanuel’s direction, police Supt. Garry McCarthy asked City Hall Inspector General Joseph Ferguson to investigate and recommend whether anyone from the department should be fired or otherwise disciplined.

But two police unions — representing sergeants and lieutenants — filed grievances that have stalled Ferguson’s investigation since last October, and all six cops remain on the job.

Three hold high-ranking positions under McCarthy: Area North Deputy Chief of Patrol Dean Andrews, Area South detective Cmdr. Joseph Salemme and Lt. Denis Walsh, who supervises detectives on the North Side. While under investigation, their paychecks have soared, records show. They are each on pace to make between $150,000 and $180,000 this year.

The other three Koschman cops Webb considered charging — Sgt. Sam Cirone and detectives James Gilger and Nicholas Spanos — each is making more than $125,000 a year.

In addition to those six cops, Ferguson also has been investigating four others, records obtained by the Chicago Sun-Times show.

But two of them have retired. With their retirements, they no longer can face any punishment from the police department.

Most of the other officers could do the same to avoid discipline.

“It speaks to the strong power of the police union,” says a source involved in the case. “The last thing you want to do in a case about delayed justice is to delay justice.”

Locke Bowman, a lawyer for Nanci Koschman, says something should have been done by now about the cops involved in the case.

“I thought something was going to happen,” says Bowman. “I’m surprised and disappointed.

“As a general matter, the police and the various agencies that exist to police and to discipline the police are abysmal at holding anyone accountable for anything.”

The behind-the-scenes battle between the unions and Ferguson is detailed in a 65-page ruling Aug. 21 by Michigan State University law professor George T. Roumell Jr., the arbitrator hired to hear the union grievances.

In his ruling, Roumell rejects the unions’ contention that Ferguson doesn’t have the authority to investigate the police department and recommend discipline. Roumell says Ferguson can do so as long as he at least tries to obtain a sworn complaint from Webb against the officers by Oct. 21. If Webb won’t go along, Roumell ruled Ferguson can proceed anyway.

Webb declined to comment on the arbitrator’s ruling or whether he would sign an affidavit.

It’s unclear when Ferguson will wrap up his investigation. He declined to comment.

If Ferguson recommends disciplining any of the officers, it would be up to McCarthy to decide whether to impose the punishment.

Daniel Herbert and Thomas Pleines, the attorneys for the police unions, didn’t return calls seeking comment.

Says city law department spokesman John Holden: “We are pleased that the arbitrator agreed with the city’s position that the Office of the Inspector General has authority to conduct investigations involving allegations of police misconduct.”

The inspector general has the authority to investigate all city employees. But the unions argued that, under their contracts, Ferguson didn’t have jurisdiction to investigate the police.

The unions filed grievances last October after Ferguson tried to interview three of the cops. The interviews went ahead anyway between Nov. 19 and Jan. 5, Roumell said in his ruling.

But the unions contended the interviews violated their contracts because “the employer compelled” the three “to submit to an interrogation . . . without having first obtained the required affidavit” from a citizen accusing them of misconduct.

Under the city’s contracts with its police unions, officers can be investigated by the department’s internal affairs division or the Independent Police Review Authority based on such a sworn statement or a complaint from someone inside the department.

McCarthy and City Hall brought in Ferguson after deciding that IPRA — which primarily investigates police-involved shootings — had no jurisdiction in the Koschman case and that internal affairs shouldn’t be involved because one of its officers was a named defendant in Nanci Koschman’s now-settled lawsuit against the city.

The police department conducted two investigations into Koschman’s death: in 2004, when he died, and in 2011, prompted by a Sun-Times investigation. Nearly all of the key cops involved in the case in 2004 have retired.

The inspector general’s investigation, though stalled, continues. Ferguson has focused on these 10 cops, according to the arbitrator.

• Andrews, who was deputy chief of detectives in 2011 and ultimately closed the case without seeking charges against Vanecko.

• Salemme, whose detectives oversaw the 2011 investigation.

• Gilger, the detective who recommended the case be closed in 2011.

• Spanos, Gilger’s partner.

• Cirone, Gilger’s and Spanos’ supervisor.

• Thomas Mills, who signed Gilger’s final report.

• Walsh, who has told authorities he found missing police files from the Koschman case and took them home.

• Gary Yamashiroya, who was Walsh’s boss and recently retired.

• Rita O’Leary, a detective assigned to the case in 2004 who recently retired.

• Edwin Tremore, the beat cop who found Koschman lying in the street.

 

According to Webb’s report on the case, Andrews and Cirone exchanged emails that contained a fabricated statement from an unidentified witness claiming Koschman had yelled at Vanecko, “F— you. I’ll kick your ass.”

Webb found no evidence that anyone ever gave that statement to police. But it still was included in Gilger’s final report, which concluded Vanecko punched Koschman in self-defense and shouldn’t be charged.

Koschman was 21 when he was punched in the face by Vanecko, then 29, during a late-night confrontation on Division Street near Dearborn Street, near the Rush Street bars, after both had been out drinking with friends.

Vanecko ran off. Koschman died 11 days after the punch and fall left him comatose on the street.

The police began investigating but stopped within hours, resuming only after Koschman’s death.

Friends who were with Koschman couldn’t identify the 6-foot-3, 230-pound Vanecko in a police lineup filled with police officers who were even bigger.

The department set the case aside without charging Vanecko.

Koschman’s death remained on the books as an unsolved homicide until 2011, when the police took a new look at the case, then quickly closed it. They said Vanecko hit Koschman in self-defense, even though the younger man was more than 100 pounds lighter and nearly a foot shorter — and never threw a punch.

Nanci Koschman turned to the courts, seeking the appointment of a special prosecutor and questioning the actions of the police and the Cook County state’s attorney’s office.

Cook County Circuit Judge Michael Toomin granted her request in April 2012, saying the self-defense conclusion had been “conjured up by police and prosecutors.”

He appointed Webb, who heads the powerhouse law firm Winston & Strawn, and Webb asked Ferguson, who was already investigating, to assist.

In December 2012, a grand jury Webb impaneled indicted Vanecko on a charge of involuntary manslaughter, and Webb continued to investigate the actions of police and Cook County prosecutors.

After turning over all of the documents in the case to the FBI, Webb ended his investigation on Sept. 18, 2013. It’s unclear what the FBI did with the case.

Vanecko pleaded guilty in January 2014 and remains on probation.

Days later, Webb issued a 162-page report, outlining his findings and criticizing the police department’s handling of the case.

But Webb determined too much time had passed to charge anyone involved in the original 2004 police investigation. And he found “insufficient evidence” to convict anyone of conspiring during the 2011 re-investigation to keep Daley’s nephew from being charged.

Webb also said he found no evidence that State’s Attorney Anita Alvarez or her staff broke any law.

Webb has since contributed $1,000 toward Alvarez’s reelection, making that campaign contribution on July 31, records show. Two weeks later, Vanecko’s uncle Michael Daley — among those Webb’s team had interviewed — also contributed $1,000 to Alvarez.

Armed with Webb’s report, Nanci Koschman filed a federal civil rights lawsuit accusing the police and prosecutors of engaging in a decade-long conspiracy to keep Vanecko from being charged.

A federal judge dismissed the lawsuit last year, saying the statute of limitations on filing such a suit had passed.

Koschman appealed but dropped her legal claims when she reached out-of-court settlements with the city and, a week ago, the county.

In all, she stands to get $320,000 for the death of her only child. A judge ordered Vanecko to pay her $20,000 in restitution. The Emanuel administration agreed to pay her $250,000 to drop her suit against the city and 21 current and former cops. And Alvarez agreed to pay $50,000 to drop her suit, a payment that awaits approval from the Cook County Board.