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Maintaining lists of discredited cops is a basic and vital step in preventing wrongful convictions and fulfilling United States Supreme Court obligations, which require prosecutors to turn over exculpatory evidence (any evidence that might point toward the innocence of a defendant) or other information related to witness credibility.

However, the Chicago Reader recently reported that Cook County State’s Attorney (SA) Eileen O’Neill Burke has decided to narrow the scope of these lists and not disclose them publicly, increasing the likelihood of constitutional violations and wrongful convictions, and directly contradicting her campaign promise to “prioritize increasing transparency throughout the office.”

A do-not-call list, made up of hundreds of officers precluded from being called as witnesses or signing off on search warrants due to serious misconduct, was publicly released by State’s Attorney O’Neill Burke’s predecessor, Kim Foxx, in July 2023. The list included individuals accused of framing hundreds of public housing residents for drug possession, using coercion and physical violence to extract dozens of false confessions, and carrying out high-profile acts of police violence, such as the killing of Laquan McDonald. It is worth noting that although these officers are deemed too untrustworthy to testify in court, they frequently remain in law enforcement positions.

In Chicago, the issue of dishonest police testimony is particularly important given the city’s history of police torture, making it the wrongful conviction capital of the U.S. The widespread and largely tolerated nature of the problem prompted advocates to spend years demanding accountability for these officers. Former SA Foxx’s decision to release her office’s do-not-call list was a critical step forward in police accountability and transparency in our county.

Under Foxx, the Cook County State’s Attorney’s Office (CCSAO) also maintained a disclosure list. Disclosure lists include officers who have been found by a judge to be untruthful or biased, have a history of complaints or disciplinary actions, or have been arrested, charged, or convicted of a crime. However, being on a disclosure list does not categorically bar an officer from testifying. Instead, prosecutors use them to decide whether they must inform the defense about an officer’s background, as required under United States v. Giglio (1972). This process is critical for two reasons: First, the CCSAO lacks an automated system for determining if an officer has a sustained disciplinary record that might undermine their credibility, and second, the Chicago Police Department (where most cases originate) does not maintain an accurate list of all officers with histories of sustained Rule 14 violations. 

Although the CCSAO’s previous disclosure list was imperfect, the current policies make things worse. According to the Chicago Reader, SA O’Neill Burke has implemented a shorter, internal list limited to officers who have been stripped of police powers by local law enforcement, which is a much higher bar than past lists. Therefore, the new list excludes many individuals previously flagged, since misconduct rarely results in loss of police powers, and even when it does, some officers are later reinstated.  For example, currently missing from the list, according to the Reader, “are Alvin Jones, an officer found to have falsified police reports as part of the notorious squad led by Sergeant Ronald Watts (Jones resigned from the department in May 2022); Jeffrey Kriv, an officer who repeatedly used the same excuse in traffic court, that his girlfriend had stolen his car, to evade dozens of tickets; and several officers affiliated with the Oath Keepers, a right-wing extremist group linked to the 2021 assault on the U.S. Capitol, whom the Chicago Police Department (CPD) has declined to reinvestigate or fire.” Under State’s Attorney O’Neill Burke, the CCSAO has introduced a new “Brady/Giglio Questionnaire” containing questions that previously determined inclusion on the disclosure list; experts have noted significant limitations of this questionnaire, as it relies on officers to recall and disclose their own misconduct. 

Although testilying, or perjury by law enforcement, has always been a problem in our criminal legal system, the practice has gained increasing attention over the past decade. Numerous sources detail just how pervasive testilying is, particularly in Chicago. As Chicago Appleseed noted in our November 2023 report, Fear and Silence: How Culture, Policy, and the “Win at All Costs” Mentality Allows Police Testilying to Thrive: “One survey of prosecutors, defense attorneys, and judges from 1992 found that, on average, ‘perjury occurs 20% of the time, with defense attorneys estimating it occurs 53% of the time in connection with Fourth Amendment issues,’ but, “the true frequency of police perjury is almost impossible to measure because officers are rarely caught or disciplined.”

NEW REPORT: Fear and Silence – How Culture, Policy, and the ”Win At All Costs” Mentality Allows Police Testilying to Thrive

Under the CCSAO’s new policies, prosecutors have fewer ways to uncover information they are legally required to disclose. They may no longer proactively search for sustained findings of dishonesty—such as collecting transcripts showing instances of a judge disbelieving an officer’s testimony at a trial or suppression hearing—or comprehensively report adverse credibility findings they witness firsthand. As a result, officers who make false statements may go undetected. Even before the recent changes, the State’s Attorney’s Office knew of only 12% of the total officers with sustained Rule 14 violations. Employing a less rigorous questionnaire and disclosure procedure will almost certainly widen this gap and only substantiate long-held claims that prosecutors tolerate or even encourage testilying.

Chicago Appleseed was alarmed to find out about and has serious concerns with State’s Attorney O’Neill Burke’s decision to scrap the CCSAO’s do-not-call and disclosure lists. False testimony is one of the leading causes of wrongful convictions, with 84% of all exonerations in Illinois involving perjury or false accusations. Brady violations are one of the few legal pathways individuals can pursue in habeas petitions for postconviction relief, so disclosure and do-not-call lists serve a vital role in helping litigants establish patterns of behavior to substantiate their due process claims. Uncovering police testilying has always been difficult due to the code of silence, but the recent elimination of Cook County’s do-not-call and disclosure lists exacerbates the problem.

When police perjury is a defining feature of our criminal legal system and officers are not held accountable for violating the law, it erodes public trust in our institutions and reinforces the perception that police operate above the law. What is needed is more accountability, transparency, and confidence in the system—not less.

To correct the immense harm caused by this policy change, we suggest that the Cook County State’s Attorney’s Office reinstate the do-not-call and disclosure lists immediately; these lists should be publicly available so that defense attorneys may adequately protect their clients’ rights and the voting public may determine whether their elected officials and public employees are meeting their constitutional and professional obligations. Additionally, we encourage all law enforcement entities within Cook County—such as the Chicago Police Department, Chicago Civilian Office of Police Accountability, and Cook County Sheriff’s Office—to track and proactively disclose to the CCSAO all sustained misconduct findings that may be exculpatory for a defendant in a criminal case or may impeach an officer as a witness. A non-exhaustive list of these types of incidents includes: 

• arrests, charges, and criminal convictions in any jurisdiction;
• findings that an officer used unreasonable force;
• findings that an officer conducted an unreasonable search or seizure, such as improperly detaining a person for a traffic or pedestrian stop or improperly searching a person or their car;
• findings that an officer exhibited bias against any person based on a characteristic protected by federal or state anti-discrimination laws, such as race, national origin, gender, sexual orientation/gender identity, religion, immigration status, or marital status;
• findings questioning an officer’s honesty, such as that an officer falsified or included misleading information or omitted material information in any document or report, fabricated evidence, misused government data, provided false or misleading information about a case or their training, qualifications, or educational achievements, and all other findings casting doubt on their ability to testify truthfully;
• findings that an officer mishandled evidence or intentionally failed to activate a body-worn camera to conceal evidence;
• findings that an officer knowingly utilized information from a witness or informant that was likely to be false, biased, or unreliable; and
• findings that an officer intentionally violated certain departmental policies.       

We hope that, in the meantime, individual prosecutors continue to maintain their own do-not-call lists based on their knowledge of which police officers reuse formulaic and rehearsed accounts, which officers’ arrests or warrants are suppressed by the court for violating the criminal defendant’s rights, and their personal observations of officers providing testimony that is called into question in any trial or evidentiary proceeding. Following the example set by Candace Gorman and Joshua Tepfer, we encourage defense attorneys to conduct their own discovery and Freedom of Information Act (FOIA) requests to police departments for case records or impeachment evidence rather than relying on the affirmative disclosures under Brady and Giglio that rarely happen. As Chicago Appleseed wrote in 2023: “State’s Attorneys are in a unique position to address the issue of false reports and perjury, but regularly lack the incentives and institutional support to do so.” Instead of following a misguided and unethical win-at-all-costs mentality, prosecutors who root out unconstitutional behavior should be rewarded, while those who tolerate it should be held to account.

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