Laura Washington Interviews Eileen O’Neill Burke
Cook County State’s Attorney
Editor’s Note: Laura Washington is a Chicago Tribune contributing columnist and political analyst for ABC 7-Chicago. She brings more than two decades of experience as a multi-media journalist who covers local and national politics, race, and social justice. As part of the Cliff Dwellers Journalist Series, Washington was in conversation with the two leading candidates seeking the Democratic nomination for Cook County State’s Attorney. This highly competitive contest for an open seat comes at a crucial time, amid questions and challenges around public safety and criminal justice in Chicago and the suburbs. In her first interview, Laura spoke with Clayton Harris, a University of Chicago lecturer. At this event, Washington spoke with former Appellate Court Justice Eileen O’Neill Burke who has served more than 30 years as a prosecutor, defense attorney, and judge. A fourth generation Chicagoan, Eileen was born and raised on the Northwest side by a single mother after her father died at an early age. She attended St. Mary of the Woods Grade School and Marillac High School before graduating from the University of Illinois in Champaign-Urbana and Chicago-Kent College of Law. Ten days after Illinois’ primary election on March 19, Eileen O’Neill Burke was announced the winner of the Cook County State’s Attorney’s race. Burke’s margin was about 1,500 votes out of more than 527,000 cast. Only 17.94% of registered voters in suburban Cook County and 25.7% of registered voters in Chicago voted in the March 19 primary. Penny Wilson of The Cliff Dwellers introduced the program.
Transcript of Eileen O’Neill Burke Interview
by Laura Washington
Penny Wilson (PW): Welcome to the Cliff Dwellers. We’re a warm community of artists and art lovers. And during lunch hours, we frequently gather together at the members table. This is a specially marked table at the club where we eat lunch, tell stories, and exchange ideas on a wide range of topics. For the evenings, our newly established journalist series aims to bring about a similar experience. We gather here to hear stories, very timely, interesting, and important stories.
The difference is that they’ll come to us through a gifted moderator engaging with today’s newsmaker. In honor of Hamlin Garland, the novelist and founder of our club, John McDermott, a past club president and founder of the Chicago Defender, and our distinguished late member and Pulitzer Prize winner Roger Ebert, a brilliant journalist and critic on cinema.
These Cliff Dwellers programs celebrate the art of journalism under the banner of today’s story. For today’s story, we’re excited to spotlight Laura Washington, a maker of deep and interesting conversation. Washington is a Chicago Tribune contributing columnist and political analyst for ABC 7 Chicago. She brings more than two decades of experience as a multimedia journalist who covers local and national politics, race, and social justice.
And here tonight, Washington will engage with Eileen O’Neill Burke, former appellate court justice, and now seeking the Democratic nomination for Cook County State’s attorney. This is today’s story. And there’s not a minute to waste. So please help me warmly welcome Laura Washington and Eileen O’Neill Burke for an important and masterful conversation. (audience applauding)
Laura Washington (LW): I know, yeah. A lot of pressure. That’s a pretty high bar you’re asking us to achieve. But we’re going to do our best, right? We’re going to try. Welcome everyone, and thanks for being here tonight. I was saying to someone at the table earlier that it’s so, it feels so good to see voter interests and to see folks like you who are spending your evening coming out to find out who these candidates are and what they’re really about as opposed to just looking at those campaign ads and flyers and mailers and all those other things that don’t really tell you the truth. So you’re going to get some facts and some truth here tonight and I really appreciate you joining us. And welcome. Thank you. Welcome. Thank you, I’m looking forward to this.
And first let me just introduce you. Eileen O’Neill Burke brings deep experience in the justice system beginning with a 10 year stint as a Cook County State’s Attorney where she handled felony appellate cases. After that, she worked as a criminal defense attorney trying felony cases in both adult and juvenile courts. She also was elected, she was later elected to the Circuit Court of Cook County where she served her eight years. In 2016, she was elected Justice of the First District Appellate Court in Cook County. There she issued more than 800 written decisions in both civil and criminal cases and reviewed more than 1,800 trial court decisions. She has also served as President of the Illinois Judges Association and has led that organization’s classroom education efforts to grade school and high school students. Ms. O’Neill Burke has also served as a youth counselor in her church and trustee for the Park Ridge Library Board. She’s been married for 33 years to her handsome husband over here and is a mother of four young adult children. Welcome. Thank you. He’s as handsome as ever, right?
Eileen O’Neill Burke (EOB): Yes, he is. He looks exactly the same. (laughing)
LW: So thank you for being here tonight and I know you’ve been on the campaign trail and it’s been a busy one and I’m really glad you’re taking the time to share your agenda with us. So could we just start off by you sharing what you see as the highlights of your professional career and why you think those are the right qualifications to be the next Cook County State’s Attorney?
EOB: So I have been on every single side of the justice system as a prosecutor, as a defense attorney, as a trial court judge and as an appellate court justice. I’ve seen what effective prosecution is and what it isn’t and the question I get asked most often is why would you do this crazy thing or as my husband like to put it, “You want to do what?” And so my answer for why I want to do this is pretty simple and I think it’s an answer that many of you share.
I love Chicago. I was born and raised here. I grew up on the northwest side. I met my husband here first day, first year, law school. We raised our four children here. My family has been here for generations. My great grandmother was a baby in Chicago during the Great Chicago Fire. I’m not giving up on Chicago. I want my children to come back here and raise their children here but I want them to live in a city that’s safe. I want them to live in a city where you don’t have to worry about going out at night. I want them to live in a city where you don’t have to have a game plan in your head of what to do if you’re carjacked. I want that for all of us in every single neighborhood, in every town in Cook County and we don’t have it right now because our justice system is not working and we can make it work for everyone. You don’t have to believe me. Anybody who reads the news or watches the news at night could tell you it’s not working. You could ask any victim, any witness or even any defendant if they think the justice system’s working just fine right now and I think they would tell you it is not but we can fix this and that’s why I stepped down from the appellate court. That’s why I’m running.
So you talk about, rightly so, about the crime and some people are really, many people throughout the city are really concerned about the crime on all levels, violent crime, retail theft, that kind of thing but when we think about crime fighting we usually think about the police. You’re not the police and the Cook County State’s Attorney is not the police. What role does the Cook County State’s Attorney’s Office have in fighting crime and how will you apply your skills to that? So the Cook County State’s Attorney’s Office is the backbone of the criminal justice system.
Every single case is evaluated by a state’s attorney. The state’s attorney determines who to charge with a crime, what to charge them with. Now under the Safety Act they make the initial determination if someone should be detained pretrial. They decide whether somebody gets a break and gets a plea or whether that case goes to trial and they make a recommendation at sentencing. So at each and every step of a criminal prosecution the state’s attorney is the primary actor.
What’s happening right now in the state’s attorney’s office is they are woefully understaffed. Basic things are not getting done. Women are having trouble getting an order of protection because there’s no state’s attorney available to process the paperwork. Defendants are sitting in custody for years waiting to go to trial because no state’s attorney has been able to comply with discovery or if they have nobody’s available to try the case. So on every single side nobody is getting a fair shake right now because they’re woefully understaffed.
So for anybody who’s ever been a state’s attorney they will remember the very first time they stood up in court and they said I am here on behalf of the people of the state of Illinois. It is a feeling of pride but it’s also a feeling of responsibility. And the responsibility is you are there as an advocate for the victim. We seem to have gotten a little bit away from that mission of the state’s attorney’s office. So what’s happened right now is because of this understaffing there is no supervision going on. There is no training going on. We’ve lost all the institutional knowledge that was in the state’s attorney’s office. So the people who would do the training, who would do the supervising are no longer there. We need to fix that and we need to fix that quickly. And I know I’m going on–
LW: No, no, no, no. Jump in. You’re a lawyer so you know how to talk. (laughing) So yes, the office is understaffed and something needs to be done about that. What would you do specifically to, I mean it’s partly a problem of recruiting, it’s partly a problem of morale. What measures would you take from day one to fix that problem?
EOB: So I became a state’s attorney in 1991. There were 2,300 applications for 50 spots. It was a highly coveted job because that was the place you wanted to go to learn how to be a trial attorney. So what I want to do, and I’ve already started recruiting other retired judges saying come back with me, let’s figure out an educational program. Let’s develop a curriculum for each and every level of the state’s attorney’s office where we study the Constitution, the case law, the statutes that govern that division. And let’s focus on what are the courtroom skills that are necessary for you to be effective at your job. This is going to be like getting a master’s degree in trial work. My goal is to set the gold standard for prosecutor training in this entire country. I want everybody looking at what Cook County is doing because we’re going to get our crime rates down and we’re going to get that off as fully staffed. So that’s for the felony trial division. That’s for people who want to learn how to be the best trial attorney they can be.
I also want to create a restorative justice bureau. And everybody throws that term around restorative justice, but I want to tell you exactly what I’m talking about. Restorative justice courtrooms are for nonviolent felons. They’re for specific types of offenders like people struggling with drug addiction, mental illness, prostitutes, veterans. They’re a collaborative approach with the judge, the defense attorney, and the state’s attorney to figure out what does this person need to get back on track. What do they need to become a productive citizen again? They’re actually having success in these courtrooms. Their repeat offender rates are significantly less than any other type of felony prosecution. They’re working. So not only does it make us morally better as a society if we can get people turned around before they turn to violent crime, but it’s fiscally better. These programs cost a fraction of what it costs to incarcerate somebody. So I want to front load resources and really develop the most innovative and effective restorative justice bureau in the entire country. And if we do that, we’re going to appeal to a completely different type of law student than the one who wants to be the hard charging trial attorney. We’re going to attract people who are better at the softer skills, people who want to learn how to work with multiple governmental agencies in getting people back on track. And that’s how we’re going to get the office re-staffed.
LW: So talk a little bit more about restorative justice. As you say, people throw that term around all the time. We have a system in place now. What is going to be different about what you are going to do? Are you going to build up that system and add more services? What exactly are you going to do?
EOB: So what I want to do is, so they’re scattered all over the county. So there’s some in Avondale, there’s some in Lawndale. So there’s a couple different things that are happening right now with the restorative justice courtrooms. They are studied and applied for those specific types of offenders that I told you about. The current administration has converted them to 83% of them are now gun courtrooms. They defer prosecution. Why are you shaking your head, Roseanne? Why are you saying no? Yes, it is. Apple Seed Foundation just came out with a study on this. And they said they’re using them as gun restorative justice courtrooms. They’re not being used for what their intended purpose is. So what they’re doing is, they’re gun deferral programs. If you do not have a background, you go to one of these programs and prosecution is deferred. We are in the middle of a crime wave right now.
This city and the county are awash in guns. And they’re not just any guns. They’re guns that have been converted to automatic weapons with a switch and an extended magazine. When you do this to a gun, it makes it very difficult to control. They just spray bullets. We’re seeing the ramifications of these guns all over. The two boys who were shot at Washington and Wabash, 20 shots rang out in five seconds. It’s one of these guns. The officer who was shot at state in Walton, the offender was found with one of these guns. The mass shooting in Lawndale where 15 people are shot, it’s one of these guns because they can’t control them. So what can the Cook County State Attorney do about getting those guns off the street? I can go on forever. I mean, because a lot of what you do is on the back end. I mean, the crimes have been– No, we determine who goes into restorative justice. But I’m just saying, but the crimes have been committed. The guns have been already on the streets. By the time you get there, the crime is, the terrible violence has already happened. So what can you do in your role to get guns off the streets to cut back on the guns? We have a tool and the tool is not being used. It’s the assault weapons ban. The assault weapons ban has elevated the class of offense and it has extended the term of sentence. We are not using that.
So to your point of, okay, the horse has already left the barn, what are you going to do? I did criminal defense for eight years. I can tell you right now, the criminals will know that things have changed. If we seek detention each and every time somebody’s using an assault weapon, if we are seeking a jail term, each and every time somebody is using an assault weapon, the behavior will change. There needs– And that’s not happening now on day one under Kim Fox. That is not happening now. That is not happening now. I spoke at an event a couple weeks ago and a young man came up to me afterward and said, “Judge, I am in bond court right now. “We are begging to ask for detention “on assault weapons cases.” And they are saying, “No, we can’t ask for detention.” Which leads me into the Safety Act, if we can go into that. Okay, so– Just to remind everybody what the Safety Act is. So the Safety Act is a fundamental change to our justice system. The Safety Act fundamentally changes how we approach pretrial detention. So we’ve all seen that judges used to set a bond commiserate with the seriousness of the offense. So the more serious the offense, the higher the bond would be. And we’ve all seen that a murder would be a million dollar bond. That was judges way of keeping someone detained pretrial if they presented a danger to the community. So now the Safety Act says, “No, we’re not going to look at money anymore. “Our criterion is going to be, “are you a danger to the public or are you not?” That’s our sole criterion. We are the first state in the nation to try to do this. And I think we can all agree that should be what the criterion is.
If you’re not a danger to the public, you don’t need to be incarcerated before you’re found guilty. So it should be, are you a danger to the public or are you not? But the Safety Act also fundamentally changes the state’s attorney’s role in pretrial detention. Now in order to detain anyone, the state’s attorney needs to file a petition to detain. If the state’s attorney does not file that petition to detain, it doesn’t matter if the offender is a serial killer or el Chapo, it doesn’t matter. Judges have to release the offender. That’s a significant change and it’s an exponential expansion of the state’s attorney’s role. So judges knew this change was coming. Judges were, and believe it or not, judges get really pissy when you mess with their discretion. They get really angry about it. So they were asking, it’s rolled out all over the state and there hasn’t been an issue with it. But all over the state, other than Cook County, they have structure, training, criteria in place. Judges have been asking, what is your criteria for detention? So they’ve never gotten it. They still don’t have it. From the state’s attorney’s office. From the state’s attorney’s office.
So let’s keep in mind, Bond Court is one of the first stops in a state’s attorney’s career. You’re 25, 26 years old. That’s who’s making our detention determinations right now. That’s who’s making all the decisions. So we need to have structure, training, criteria in place.
LW: Okay, so you’ve been fairly critical of the current occupant of the office, Kim Fox.
EOB: I tried not to, because I’m not running against her. I’m critical of the policies which my opponent has said that he will adhere to all of her policies.
LW: Okay, well I’m not sure that he would agree with that characterization. But Kim, so how, would you describe your leadership style and tell us how it’s different from Kim Fox’s leadership style in terms of what you think is wrong with the way she’s been running the office?
EOB: So, well I’ll tell you exactly what happened in the office. When missteps happened in the state’s attorney’s office, and I think we all know what they were, instead of saying I own it, my mistake, she would fire her chief of felony prosecution. She would fire her first assistant. And when that happened, there was a stampede out the door of supervisors and first-heirs, and I will tell you why.
In every state’s attorney’s career, there will be a case that blows up on you. We’re talking about the Jesse Smollett case. That one, or the Adam Toledo case, and there was two or three where people were fired. Okay. Rather than saying, okay, I made a mistake. Okay. So, when that happened, there will be a case that blows up on somebody. That’s just the nature of what we do. I’m not talking about misconduct or malfeasance. I’m just talking about that’s what our cases are like. And when that happened, people thought, well, if that happens to me, I don’t want to be vilified or fired, or my boss will not have my back. Everybody left, but what has left is the institutional knowledge in the state’s attorney’s office. That is a fundamental problem.
So now we have maybe two attorneys per courtroom at 26th Street, you should have three attorneys handling a docket of about 300 cases. You have two attorneys handling a docket of about 700 cases now. So the chance of something blowing up has become exponentially greater, because there is more work than can be done in a day. There is just a constant accumulation of work. So my opponent has said that the solution to that is they need to work harder. Well, that’s just not possible. I know that they are working as hard as they possibly can. We need to get the office re-staffed.
LW: Okay, so to answer the question about what would you have done differently in the Jussie Smollett case, for example, you said that Fox did not own up their mistake. I would not have fired my supervisors. Okay, so is that the only thing that went wrong with that case?
EOB: No, there was a myriad of things that went wrong. How would you handle it differently? So once you recuse, and this is true as judges too, if you recuse from a case, you are not allowed to even talk about anything on that case. You are completely separate from this case. You don’t talk to any of the parties. You don’t talk to the lawyers. You don’t talk to other judges about that case. You are walled off from that case. That never happened in Justice Smollett. That was one. You know, and Adam Toledo, that was a judgment call. And when you make a judgment call, well, okay, sometimes it comes back. That is not the right judgment call. You don’t fire people over that.
LW: So one of the things that relates directly to a lot of the street crime is the retail theft issue, which has been very hot in the news. And there’s been a big debate about the way Kim Fox has handled that. You explained what the issue is with retail theft and what your position is on it?
EOB: So the retail, the felony retail theft statute reads that the value of goods to be a felony is $300 or a buck. Kim Fox decided that she will not prosecute if the value is less than $1,000. So I took an oath as a judge, I’ll take the same oath as state’s attorney, and then I will uphold the law. The law is $300 or above. If there’s an appetite to change the law, the correct way to do that is go to Springfield and get the threshold lifted to $1,000. It is not appropriate for an office holder just to say I’m not going to prosecute those crimes. We’ve seen the ramifications of these crimes.
We’ve seen Walgreens, CVS, Target, Walmart, they’re closing all over the city and the county because they cannot stay in business. We’ve all seen people walk into Walgreens, open their backpack and fill it up and walk out. So the Retail Merchants Association last week asked me to go on a tour of a couple of stores. So I went to a Walgreens in Little Village and I went to a Home Depot in Little Village. So when we went into Walgreens, the amount of mitigation measures that are in place were astounding. Everything is locked up. They had to remove their emergency exit doors because thieves were using that. They had to hire security that has to be there at all points of the store. Because they did a study that people will only wait three minutes once they ask for somebody to come unlock something, they almost have to have a one-to-one customer-to-worker ratio in order to accommodate their customers. I’ve been in a lot of Walgreens lately and I haven’t seen that. They don’t have a one-to-one customer. They don’t have the staff for that. They don’t show them. I think this is a crowd that may get this reference. Anybody ever watched Little House on the Prairie? It’s become almost like Mr. Olsen standing at the counter unlocking everything to get it for them. That is just, they were saying to me, they cannot keep doing business this way. They cannot stay in business by doing this. And it’s a direct ramification of this policy. So, but, let me go one step further.
So, that doesn’t mean every single person arrested for retail theft should go to jail. So, if you don’t have a background, you get arrested for retail theft, you can do theft school. You complete the class, you don’t get arrested again, it’s gone, it’s off your record, it doesn’t permanently harm you. And then you grade it up to supervision, probation, and jail time if the offense or the offender’s background warrants it. That’s what prosecutorial discretion is. It is not just saying I’m not going to prosecute because we’ve all seen not prosecuting crime doesn’t deter crime, it promotes crime.
So, one of the other things that the Walgreens employees did tell me when I was there was it started out where one guy had come in, fill up a backpack and leave. Then it became five guys had come in, fill up whatever they had and leave. Now it’s morphed into five guys come in, they fill up their backpacks, and they pepper spray the workers that are there. The behavior is accelerating. It’s getting grossly disproportionate because there is no prosecution taking place. So, you would make exceptions in cases.
LW: When Clayton Harris was here, he talked about this and as you know he has a different threshold than you do. And he says that there’s going to be a kid that’s going to come in that wants a cell phone or something. The kid with a cell phone example, right. And the child doesn’t have a record, are you going to prosecute cases like that? How are you, what is going to be your threshold or your measurement for cases that shouldn’t go to felon to felon?
EOB: I’ve explained this to him a couple times and I’m kind of disappointed he’s still using that example because the 11 year old is prosecuted in juvenile court. She’s not prosecuted under the criminal code. That’s a completely different system. And we can go into juvenile court and how it’s different from the criminal court, but an 11 year old is not tagged with a felony. They’re not tagged with a felony. It wouldn’t be a prosecutor for a felony regardless. But a 17 year old who has no record. 17 year old still in juvenile court, under juvenile court, 18, 19. Then we’re under the criminal code and they don’t have a background, they do theft school. They don’t get arrested again. We’re done, then they don’t have anything on the record. That is not, that’s what the law requires.
Mr. Harris has also said that the shopkeeper should put the expensive stuff in the back of the store. That’s putting the burden of crime on the retailers and that’s just not right. We don’t get to abdicate our responsibility by saying, well, it’s up to the shopkeepers. You’ve got to put your expensive stuff in the back. Okay, so it’s been pretty hot on the campaign trail, especially the last couple weeks as I’m sure you can feel better than anyone. There have been a couple controversies I want to talk to you about. One of them is around the issue of this young boy that was prosecuted in a wrongful murder case. Clayton Harris says, Clayton Harris is running an ad that accuses you of being behind that conviction, conviction of a 10 year old black boy. That conviction was later overturned.
LW: Can you explain the circumstances of that case and what your response to the charge that not only he is making, but his allies are making, that you wrongfully prosecuted a 10 year old boy for the murder of a, for a murder?
EOB: So 30 years ago, I prosecuted an 11 year old who had confessed to the brutal murder of his elderly next door neighbor. His attorney made the decision to put him on the stand where he repeated the confession. Neither the juvenile, his mother, or his attorney ever claimed that that statement was coerced in any way. There was no motion to suppress. Nobody ever said that statement was coerced. So went up on appeal, appellate court affirmed, Supreme Court denied review. Eight years later, the case went to federal court and the officer who had investigated in this case had been accused of malfeasance in a different juvenile case. Based on that, the federal court said his attorney had erred by putting him on the stand and not trying to get that statement thrown out. His attorney was ineffective. Neither that court or any other court has questioned my conduct in that case or any other case. The only time my role in that case has ever been questioned has been by Mr. Harris and his allies who brought this up 30 years later.
So I will tell you this, a bedrock quality for every single judge that we are evaluated on is honesty, ethics, integrity. If you don’t have those qualities, you will never get found qualified to be a judge. I’ve been evaluated by dozens of our associations multiple times and each and every time they have found that I am ethical, I have integrity and I am honest. That would have never happened if the facts of this case were true or as Mr. Harris represents them.
LW: Well, as he represents them. So you’re saying that the boy’s attorney erred and that led to this– To the reversal. To the reversal. At any time did you, you had no inkling that this police officer was involved in this kind of coercive activity. You had no inkling, no understanding of that at all, all the way up until it was–
EOB: Absolutely. If I had any inkling, Laura, I would have never prosecuted that case. And that federal court opinion, it’s a fairly easy to understand case. Either Mr. Harris doesn’t understand the case or he’s intentionally chosen to distort the facts. And the reason why that’s so significant is we can’t have a chief prosecutor who’s willing to be dishonest or distort the facts in order to generate political buzz for himself. That’s a disqualification for this job. So he all, one of the things he and his supporters also say is that you’ve never expressed any regret. Now you say you didn’t do anything wrong and you didn’t make a mistake. Should you, do you feel badly about how that turned out for that little boy? I wish I had the ability to see into the future. Although if I did, I might not be sitting here right now for this whole campaign idea. But this, but I didn’t have the ability to see into the future. And so I wish I had that ability to see that the officer had done something wrong. But I didn’t have the ability. And there was no allegation from anyone that he had done anything wrong until several years later. So do I regret not being able to see into the future? Not really. Do you feel badly about what happened to that boy? He went home to his family. He never spent a day in custody. And so I’m going to leave it at that.
LW: Okay. He was never found innocent by that case, by the way. They just said that his statement should have been challenged. Do you believe he still, do you still believe he’s guilty?
EOB: I believe he had something to do with it, yes.
LW: The other big issue in the campaign or one of the other big issues in the campaign has been fundraising. And Clayton Harris sent out a fundraising appeal this morning. You’ve probably seen it or you heard about it. In it he knows that you have donated, he knows the fact that you’ve donated $100,000 personally to your own campaign, which in fact lifted the state’s limits on campaign contributions to all the candidates in the race. He then goes on to say that you have accepted, quote, nearly $1 million in huge checks from dangerous right wing anti-choice Republican donors. The same people who have funded Donald Trump, Mitch McConnell, Dr. Oz, Kelly Loeffler and worse, unquote. Now you’re running as a Democrat and you have raised according to WTDW about $1.9 million for your campaign. And the bulk of that, those contributions come from members of the Chicago financial community and many of them have given to Republican candidates.
EOB: And Democrats. And Democrats.
LW: So how would you respond to that charge?
EOB: So one of the first things that I was kind of surprised about in this campaign was they accused me of being a Republican. That was a little shocking because I voted in every Democratic primary since I was 18. I was the Democratic candidate for judge in 2008 and I was slated by the Democratic Party for the appellate court in 2016. So that was all a little bit of a surprise to me. It was a surprise to my family as well who were also generations of Democrats.
So with regard to the campaign, I have received over 2,000 donations from people all over the county from every kind of place and socioeconomic status and I’m really proud of that. I’m really proud of the cross section of this county that has supported me. I’ve also received the support of 13 different labor unions. I grew up in a union household. My dad died when I was very young. I went to college on the union life insurance money. Unions have r