www.baltimoresun.com/topic/chi-mistrial-declared-in-former-el-rukn-leaders-lawsuit-against-police-prosecutors-20140325,0,3852123.story

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Mistrial declared in former El Rukn leader's lawsuit against police, prosecutors

By Jason Meisner

Tribune reporter

8:20 PM EDT, March 25, 2014

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Lawyers for a former El Rukn gang member who alleges he was wrongly convicted decades ago are asking for sanctions against city attorneys after a former police sergeant improperly uttered the word “terrorism” on the stand, prompting a federal judge to abruptly declare a mistrial and dismiss the jury last week.

The gaffe occurred seven days into testimony at a trial over Nathson Fields’ lawsuit against Chicago police and Cook County prosecutors for allegedly framing him in an infamous 1984 double murder that sent him to death row.

Former Chicago police Sgt. David O’Callaghan, who is one of those sued, was answering a seemingly innocuous question from his attorney about the role a particular prosecutor played years ago in the prosecution of the notorious El Rukn gang. O’Callaghan blurted out that the prosecutor was involved in “terrorism cases” before Fields’ lawyers shouted objections, according to a trial transcript.

U.S. District Judge Matthew Kennelly, who had barred city attorneys from mentioning at trial any terrorism links to El Rukn leader Jeff Fort from decades ago, immediately ordered the jury out of the room.

When O’Callaghan’s attorney, Terrence Burns, fumbled at answering how the slipup had occurred, Kennelly shot back, “I didn't ask you that question.”

“…I am prepared to sit here until hell freezes over until I get a responsive answer to the question that I have now asked you twice,” the transcript quoted Kennelly as saying. The judge later explained that he was forced to declare a mistrial because of the powerful connotations of the word “terrorism.”

“The problem with this is that I don't think -- you know, given what -- given the reference and given the nature of it in this day and age, I just do not think that this is a bell that can be unrung,” the transcript quoted Kennelly as saying.

After dismissing the jury, the judge scheduled a retrial for April 7.

In the aftermath, Fields’ attorney, Candace Gorman, asked the judge to impose more than $250,000 in sanctions – double the total expenditures Fields’ attorneys say they incurred in the weeklong trial – and hold O’Callaghan and his attorneys in contempt of court.

Kennelly has yet to rule on that request, but last week he seemed to be considering it, telling the defense “when people violate court orders, there's a word for it. It starts with a ‘C.’ OK? It's called contempt.”

In an interview this week, Gorman told the Tribune she does not believe the question that illicited the terrorism comment was an accident.

“The city wants to make this a trial of the El Rukn gang when it’s really a civil rights allegation,” Gorman said. “The fact that my client was a member of the gang 30 years ago is not the issue, and the judge has repeatedly said it’s not the issue.”

Burns did not respond to a call seeking comment. The city’s law department issued a statement saying it was “extremely disappointed by the mistrial” and looked forward to presenting its defense to a new jury.

Fields' legal saga began in 1986 when Cook County Judge Thomas Maloney convicted him and a co-defendant in a double-murder allegedly ordered by Fort. Maloney himself was later convicted of pocketing $10,000 to fix the trial, only to return the money in the midst of the trial when he suspected the FBI was onto the bribe. Fields eventually won a new trial and was acquitted in 2009. He was released after spending 17 years in prison.

Fields’ lawsuit alleges Chicago police withheld an investigative file containing 150 pages of detectives’ notes that showed he was not involved in the double murder. The file was suddenly “discovered” 26 years later in a cabinet at the detective headquarters at 51st and Wentworth. Gorman said jurors were about to get a look at the mystery cabinet – which had been hauled into Kennelly’s courtroom as evidence – once O’Callaghan’s testimony was done.

Earlier this month, the presiding judge of the Cook County criminal courts denied a certificate of innocence to Fields, ruling that evidence showed Fields was aware of the bribe paid to fix his murder case. Kennelly had barred attorneys from mentioning that development in the civil trial, however.

Fort, now 66, is serving an 80-year sentence in the supermax federal prison in Florence, Colo., for his 1987 conviction for plotting acts of domestic terrorism in exchange for $2.5 million from Libya.

jmeisner@tribune.com