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The Koschman report, excerpts in text format
The Death of David Koschman - Report of the Special Prosecutor In pdf format. Below are significant excerpts in text format. My once-over reading suggests that that the misconduct here had much more to do with police trying to cover over a shoddy initial investigation (before they knew of the involvement of Mayor Richard Daley's nephew) than it did with police trying to cover for the mayor's nephew.
Our news coverage is here:
Any state law violations by employees of CPD and SAO relating to acts that occurred during their participation in the Koschman matter in 2004 are barred by the three-year statute of limitations.....
(But) unlike the events which occurred in 2004, any state law violations by employees of CPD and SAO relating to acts that occurred during their participation in the Koschman matter in 2011 and 2012 are not barred by the applicable three-year statute of limitations as of the date of this report.
However... based upon all the evidence gathered by the Special Prosecutor and his office (the Office of the Special Prosecutor ("OSP")) (e.g., witness interviews, sworn witness testimony before the special grand jury, documents subpoenaed and reviewed), and after having evaluated the elements of the potentially applicable state criminal laws with regard to the acts of certain individuals, the Special Prosecutor does not believe he could prove beyond a reasonable doubt by legally sufficient evidence at trial that any employee of CPD or SAO acted with the requisite criminal intent to violate Illinois law during their participation in the Koschman matter in 2011 and 2012.
Therefore, in compliance with his ethical obligations discussed above, the Special Prosecutor must exercise his prosecutorial discretion and not seek any additional charges in this matter....
During the course of the Special Prosecutor's investigation, 146 witnesses provided information through witness interviews and/or special grand jury testimony. The OSP interviewed 133 witnesses (110 of whom agreed to sit for a voluntary interview, while 23 required the interviews be conducted pursuant to a proffer agreement)
(FOOTNOTE: As part of the proffer agreement, witnesses agreed to be interviewed and provide statements in exchange for the promise that the OSP could not use any of their actual statements against that person in any subsequent prosecution; although any leads developed from those statements could be used against that person in any subsequent prosecution.)
....While walking, the Koschman group and the Vanecko group crossed paths on the south sidewalk of Division Street, during which Koschman bumped into (Craig) Denham. A verbal altercation ensued, and then (Mayor Daley's nephew R.J.) Vanecko hit Koschman with "a flush head-on punch that hit Koschman square in the face." Another witness at the scene described: "[Koschman] came flying back and fell straight back like a dead weight." Koschman's head then struck the pavement. At the time of the incident, Vanecko was 29 years old, 6'3" and 230 pounds, while Koschman was 21 years old, 5'5" and 125 pounds.
Immediately after Vanecko hit Koschman, Vanecko and Denham ran from the scene and took a taxi back to the Pepper Canister. Kevin McCarthy was briefly detained by police and released at the scene of the crime.
When Kevin McCarthy was questioned at the scene, he lied to police, claiming he did not know the identities of the other men who had run (Vanecko and Denham). When released, Kevin McCarthy and his wife, Bridget McCarthy, entered a taxi on Division Street, conferred with Vanecko by cell phone, and traveled to the Pepper Canister to meet Vanecko and Denham. While the Pepper Canister had been officially closed, someone at the bar allowed the four to enter and meet.
Koschman was taken unconscious by ambulance from Division Street to Northwestern Memorial Hospital. Despite numerous surgeries over the next eleven days, on May 6, 2004,Koschman died from injuries resulting from Vanecko's physical assault....
During the questioning (the next day by police), Kevin McCarthy once again denied knowing anyone involved in the altercation, which was false. While questioning Kevin McCarthy in his home, detectives asked him if they could speak to his wife, Bridget McCarthy. Kevin insisted Bridget was not available at that time. The detectives asked Kevin McCarthy where Bridget and he went after he was released by (Chicago Police Officer Edwin) Tremore. Kevin McCarthy told the detectives that they went home, which was also false.
In fact, after Kevin McCarthy was released by Tremore, the McCarthys got into a cab on Division Street. Then, Bridget McCarthy called Vanecko on her cellphone from the cab. Vanecko advised Bridget McCarthy that he and Denham were at the Pepper Canister, and the McCarthys went there to meet them.
Denham and Kevin McCarthy testified before the special grand jury that they could not recall anything that happened at that meeting. Bridget McCarthy testified before the special grand jury that she only recalled telling the group at the Pepper Canister that Kevin had been handcuffed....
Page 24: Based on their April 25, 2004 work alone, (the initial detectives assinged to the case, Rita O'Leary and Robert Clemens) were provided with the names of at least six additional individuals (Bridget McCarthy, Scott Allen, James Copeland, David Francis, Phillip Kohler, and Vrej Sazian) who could provide further information. All six were listed as "TO BE INTERVIEWED" in Rita O'Leary's draft case supp. Rita O'Leary and Clemens never contacted these witnesses. In fact, none of these witnesses were contacted by any CPD personnel until May 9, 2004 — three days after Koschman had died. To be clear, no Area 3 detective work occurred on the Koschman matter from the end of Rita O'Leary and Clemens's April 25 shift until May 9, 2004 (13 days).
Page 28: Area 3 detectives did not canvass for additional witnesses or evidence (including video surveillance). Numerous current and former detectives and police officers, including Superintendent Cline, explained that detectives should have canvassed the scene for witnesses and video surveillance shortly after the incident occurred....
Koschman died on May 6, 2004, from injuries sustained as a result of the April 25 attack.....
Page 32: On May 9, 2004, (newly assigned to the case, CPD Detective Ronald) Yawger called Koschman's three friends who were with Koschman on Division Street the night of the altercation —Allen, Copeland, and Francis — each of whom said they could be interviewed in person on May 12. Yawger also left voicemails for Bridget McCarthy, Sazian, and Kohler, asking them to contact detectives. Finally, he left a note for third watch detectives asking them to locate and interview Bridget McCarthy, Sazian, and Kohler.
On May 10, Det. (Anthony) Giralamo interviewed Kohler at the Third Municipal District Courthouse in Rolling Meadows. Giralamo's GPR (General Progress Report) states that Kohler was walking east on Division Street when he saw two groups of people arguing and pushing, with Koschman standing "curbside" and towards "the back of the group." It further states that Kohler saw Koschman "rush[ing] forward into [the] center of [the] group (aggressive)."
Giralamo's GPR notes that Koschman was observed almost immediately being pushed out of the center of the group, where he fell backwards and hit his head. During his testimony before the special grand jury in July 2012, Kohler stated that he "lost sight of Koschman after he moved in between the two groups," but that "[a]lmost immediately after Koschman moved between the two groups, he came flying back and fell straight back like a dead weight. It was like an explosion."
Kohler further stated: "Koschman hit his head pretty hard on the curb, and I believe his head actually bounced off the curb."
According to Giralamo's GPR, Kohler also told detectives that he had never seen anyone in Vanecko's group before that night and was unable to identify any of the participants in the altercation.
On May 12, Yawger interviewed Francis, Copeland, and Allen. Giralamo may have also participated in these interviews. That same day, Sazian was also interviewed by Yawger or Giralamo over the phone.
While GPRs (General Progress Reports) have been located for the interviews of Francis, Copeland, and Allen, the existence and location of a GPR for the Sazian interview is unknown, even though Yawger testified he would have created a GPR (if he interviewed him).
During Yawger's interviews, Francis, Allen, and Copeland provided statements bearing on the identity of the offender, as well as whether Koschman was punched or pushed. According to Yawger's GPR of his interview with Francis, Francis did not know whether Koschman was "hit or pushed."
According to Yawger's GPR of the interview with Copeland, Copeland stated that, "the larger of the three guys punched [Koschman] in the face."
Additionally, according to Yawger's GPR of his interview with Allen, Allen stated that "the larger of the 3 guys punched [Koschman] in the face."....
Page 36: Later that day, Yawger spoke over the phone with Bridget and Kevin McCarthy's attorney, Bill Dwyer.
Dwyer informed Yawger that his clients knew the other two people involved in the incident (something Kevin McCarthy had twice previously denied).
Dwyer told Yawger he would bring his clients in for an interview on May 13. As noted below, Bridget was interviewed on May 13 as planned, while Kevin was not interviewed until May 19.....
Bridget McCarthy informed Yawger that the two previously unidentified men who were with Kevin and her on Division Street the morning of the altercation were Vanecko and someone she knew only as "Craig."
Bridget McCarthy described walking with Denham when someone in a group of "kids" walking the other direction "flicked" Denham's glasses off — starting an argument between this "kid" and Denham
According to Yawger's GPR, Vanecko and Kevin McCarthy then arrived after paying for the taxi, grabbed Denham, and said "let's go."
Bridget McCarthy further described to Yawger that Koschman's friends were trying to "drag" Koschman away.
According to Yawger's GPR, the McCarthys, Denham, and Vanecko all turned their backs and started to walk away.
Bridget then stated that she was talking to the others while walking away until she realized her husband, Denham, and Vanecko were not following her — at which point she turned around and saw Koschman on the ground.
Bridget McCarthy stated she did not see whether Koschman was "hit or pushed."
Yawger's GPR reflects that Bridget McCarthy stated she then saw Denham and Vanecko run from the scene.
According to Yawger's GPR, Bridget McCarthy then stated that police eventually released Kevin McCarthy and placed them in a taxi, whereupon the couple "went home," which was false.
As previously noted, Bridget McCarthy testified before the special grand jury in 2012 that her husband and she in fact met up with Vanecko and Denham at the Pepper Canister, after the bar had already closed.
Page 39: Dwyer, the McCarthys' lawyer, informed Yawger that Vanecko was Mayor Daley's nephew. According to Yawger, he was the first person at CPD to learn of Vanecko's involvement in the Koschman matter – something he first was told by Bridget McCarthy during her May 13, 2004 interview. Yawger, upon learning that a relative of Mayor Daley was involved in the altercation, immediately notified Robert O'Leary and Chasen. ...
However, (Richard) Rybicki testified that CPD knew of the Mayor's nephew's (Vanecko)
involvement only a "couple of days" after April 25, 2004, when the case arrived at Area 3.
According to Rybicki, he was not present when the case first arrived at Area 3 but became aware
of it hours later, or possibly the next day. Rybicki first learned of Vanecko's involvement in the incident "pretty shortly thereafter," or within a "a couple of days" of learning about the case.
According to Rybicki, he first learned of Vanecko's involvement when the investigation
was still in its early stages and Rita O'Leary and Clemens were working the case.
Although Rybicki could not recall the specific details of any conversations with Chasen about the case, he recalled having one conversation with Chasen where it came up that "holy crap, maybe the mayor's nephew is involved."
Likewise, Mayor Daley's Deputy Chief of Staff for Public Safety, Matthew Crowl, was uncertain of the exact date, but believed he became aware of the Koschman matter shortly after the incident, when someone at CPD informed him that a nephew of Mayor Daley had been involved in a bar fight on the North Side, possibly in the Rush/Division Street area.
(Footnote on this from page 120: According to Matthew Crowl (Former Mayoral Deputy Chief of Staff for Public Safety), he was informed by someone at CPD of Mayor Daley's nephew's involvement in the incident on Division Street and immediately informed Mayor Daley in person of what he had heard. Crowl, Matthew, IGO Interview Rep. at 2 (April 25, 2013). While Crowl was uncertain of the exact date, he believed he became aware of the Koschman matter shortly after the incident. Crowl, Matthew, IGO Interview Rep. at 2 (Apr. 25, 2013). It was not clear whether Mayor Daley was already aware of the incident when Crowl made the disclosure to him. Crowl, Matthew, IGO Interview Rep. at 2 (Apr. 25, 2013). At his interview with the OSP, Mayor Daley did not recall Crowl advising him of the incident. Mayor Daley, Richard M., IGO Interview Rep. at 1 (Apr. 26, 2013)
Rybicki further testified that the assignment of the case to Yawger may have been influenced in part by Vanecko's involvement. Rybicki testified that it was important to assign the case to someone competent "because of the fact of who was involved."
Rybicki also testified that Yawger "was a highly-experienced homicide detective, and [he thought] it was more a matter of, let's be real careful here."
Page 41: Following Bridget's interview, Dwyer told Yawger that Vanecko would be represented by attorney Terence Gillespie. Yawger then called Gillespie and it was agreed that Gillespie would meet with Yawger on May 17 to schedule a time to bring in Vanecko for an interview (an interview which never occurred).
On May 17, Gillespie met with Yawger at Area 3 headquarters.Yawger informed Gillespie of the circumstances surrounding the incident, and it was agreed that Vanecko would stand in a lineup on May 20.
Thus, Yawger determined he would place Vanecko in a physical lineup (and communicated this to Vanecko's attorney) prior to speaking with Vanecko or the two other males with Bridget McCarthy at the scene of the incident.
On May 19, Dwyer arrived at Area 3 headquarters with his clients Kevin McCarthy and Denham.
Yawger interviewed Kevin McCarthy and Denham, and both admitted Vanecko wasthe fourth member of their group during the altercation on Division Street on April 25.
According to Yawger's GPRs, both Kevin McCarthy and Denham indicated they attended an engagement party the night of the incident and that after that party, they took a taxi, along with Bridget McCarthy and Vanecko, to Division Street.
Denham told police that once on Division Street, he and Bridget McCarthy exited the cab while Kevin McCarthy and Vanecko stayed behind to pay the fare.
According to Yawger's GPR, a "bunch of guys" bumped into Denham and knocked his glasses off.
Yawger's notes indicate that Denham then began arguing with the other group — which involved "pushing and shoving," as well as "a lot of swearing and name calling."
By this time, Kevin McCarthy and Vanecko had caught up to Denham and Bridget McCarthy.
According to the GPR of Kevin McCarthy's interview, he and Vanecko stepped in between the two groups and tried to separate them by pushing Craig along.
According to Kevin McCarthy, as he and Vanecko attempted to remove Denham from the scene, Koschman broke free from his friends, pushed his way past Vanecko and Kevin McCarthy, and attempted to "get at" Denham.
The GPR further states that Kevin McCarthy stepped in the way, while Koschman's friends grabbed Koschman and restrained him again.
According to Yawger's GPR, Kevin McCarthy told Yawger that Koschman attempted to attack Denham "physically and verbally" but was restrained by his friends.
Kevin McCarthy also told Yawger that, at that point, all four turned their backs and began walking eastbound on Division Street away from "the group of kids."
The incident "was over" as far as Kevin McCarthy was concerned.Yawger's GPR of his interview with Denham similarly relayed that Denham "thought everything was over" at that point.
Denham further described that as he was walking away, Vanecko was behind him (while the McCarthys were ahead), he felt a "hard jolt from behind," and next thing he knew, he and Vanecko were running down the street.
According to Yawger's GPRs for both interviews, both Denham and Kevin McCarthy turned their backs to walk away and did not see who struck Koschman.
Denham told Yawger he did not see Koschman on the ground, did not see anyone get hit or pushed, and did not know why he was running — speculating it could have been because he did not want to be "jumped" or it may have been fear of getting into trouble for public intoxication.
At the conclusion of the interviews, Yawger made arrangements with Kevin McCarthy and Denham's attorney Dwyer to have both his clients stand in lineups the following day, May 20.
While Kevin McCarthy had lied to police on two separate occasions about the identities of the other members of his group, police did not seek charges against him for obstructing justice.
Although according to Yawger's GPRs, Kevin McCarthy stated he later left the scene in a taxi and Denham stated he accompanied Vanecko to another bar after the incident, there is no indication in any of the GPRs or case supps that Yawger asked either Denham or Kevin McCarthy where they went after the incident and whether they spoke with Vanecko about the matter. In fact, during his July 2013 testimony before the special grand jury, Yawger stated he never asked them those questions, though he did acknowledge he "should have asked them that."
In 2012, the McCarthys testified before the special grand jury that they met Denham and Vanecko at the Pepper Canister immediately after the incident.
Denham also testified that although he could not recall going to the Pepper Canister after the incident, he was told by Vanecko's attorney, Terence Gillespie, that both he and Vanecko in fact took a taxi there afterwards.283 As stated previously, the Pepper Canister was closed by the time the altercation happened.
Kevin McCarthy and Denham testified that they did not speak about the incident, while Bridget McCarthy testified they may have spoken about the fact that her husband was detained, but nothing else.
Area 3 detectives also did not seek phone records; therefore, could not discover that Vanecko and Bridget McCarthy called each other several times between 3:30 a.m. and 4 a.m.eading up to their meeting at the Pepper Canister.....
Tom Epach (a former Cook County ASA) was the Executive Assistant to Superintendent Cline in 2004 and acted as a liaison between CPD and SAO; on occasion advocating on behalf of detectives when CPD thought a case should be charged.
In May 2013, Epach testified before the special grand jury and stated that sometime after the May 20, 2004 lineups, he received a call from Yawger requesting that he (Epach) reach out to SAO to attempt to obtain approval for charges against Vanecko.
According to Epach, when Yawger contacted him, Yawger stated he had already requested involuntary manslaughter charges against Vanecko on May 20, 2004.
Epach testified that Yawger told him that O'Brien refused Yawger's request when he (Yawger) requested charges, and that O'Brien told Yawger that SAO did not charge involuntary manslaughter cases if SAO thought the case would ultimately be dismissed.
Epach testified that he called O'Brien to convince him to bring charges against Vanecko; however, according to Epach, O'Brien could not be persuaded to do so.
Page 56: According to Epach, he "told O'Brien [over the phone] that I [Epach] thought self-defense could be viewed as unreasonable in this case."
O'Brien told the special grand jury that he does not recall any such request from Epach,
while Yawger told the special grand jury that, to the best of his recollection, he did ask Epach to help him get the case charged.
On May 20, 2004, at Area 3, after the lineups were complete, O'Brien interviewed Koschman's friends (Copeland, Allen, Francis, and Hageline) and Vanecko's friends (the McCarthys and Denham), but he did not interview Connolly or Kohler (the bystander witnesses).
It is unclear who was interviewed first, as Yawger has stated that the Koschman group was interviewed first, but O'Brien testified that he interviewed Vanecko's friends first.
The witnesses were interviewed individually, except for the McCarthys, who were interviewed at the same time accompanied by their attorney, Bill Dwyer.
Before the special grand jury in July 2013, Yawger stated that he took notes, which he described as "doodling" to simply "highlight some of the stuff" the witnesses were saying during O'Brien's interviews of Koschman's friends, but that he did not take notes during the interviews of the McCarthys or Denham.
Yawger's GPR for the Koschman friends' interviews totaled less than a single page for all four interviews, and no GPRs exist from the interviews of the McCarthys or Denham, even though O'Brien testified before the special grand jury in 2013 that he thinks Yawger took notes during all the May 20, 2004 witness interviews.
According to Yawger, O'Brien "really went after" the McCarthys in his interview and threatened to stop the interview and bring them before the grand jury because O'Brien did not believe the McCarthys' statements that "they did not see" what happened when Koschman was struck.
O'Brien similarly testified before the special grand jury in 2013 that he believed it was a reasonable inference that the McCarthys and Denham were lying during their interviews to protect Vanecko.3
At one point, according to Yawger, the McCarthys' attorney (Dwyer) even threatened to complain to the attorney disciplinary authorities about O'Brien.361 Likewise, according to then First Assistant State's Attorney Robert Milan's 2013 special grand jury testimony, the McCarthys' attorney also called him after the May 20, 2004 interviews to complain about O'Brien's questioning, stating that O'Brien was "harsh on them" and called them "liars."
As noted above, O'Brien did not interview Connolly or Kohler. O'Brien testified that instead of interviewing these bystander witnesses, he "relied upon CPD reports and conversations with Detective Yawger as to what they said." O'Brien testified it was not necessary to interview Kohler and Connolly because their versions of the incident were generally consistent with that of Koschman's friends, except as to whether Vanecko punched or pushed Koschman.
The Charging Decision
O'Brien's Standard for Approving Charges Under Illinois law, a finding of probable cause (defined as sufficient evidence to justify the reasonable belief that the defendant has committed or is committing a crime) is needed to return an indictment.
However, prosecutors have what is commonly referred to as "prosecutorial discretion," which under Illinois law, provides that a prosecutor is allowed to independently determine whether to charge an individual with a criminal offense and which charge(s) to bring.
In his 2013 special grand jury testimony, O'Brien described his personal standard for approving charges:
To approve charges in my mind, I would need to know with no doubt that a crime was committed, that the CPD identified the right person as the offender, and that there was some admissible evidence against that person and no negative evidence. There were some cases that was [sic] rejected because the negative evidence was so bad the case could not be salvaged by any new evidence. Negative evidence is evidence that show the offender was innocent of the offense or that contradicted evidence of guilt
...According to O'Brien, his overarching charging policy is that he does "not risk charging a person unless [he is] certain – or as certain as [he] could be of [the offender's] guilt." O'Brien testified that after reviewing the available evidence, it was his belief that the case was "nowhere near chargeable," and he told Yawger such.
O'Brien's assessment that the case could not be charged (as noted above, O'Brien asserts he was never formally asked by CPD to charge the case) was based primarily on his issues concerning the: (1) lack of witness identification of the offender, and (2) viability of the offender's putative affirmative defense of self-defense....
Although the McCarthys and Denham told O'Brien that they did not strike Koschman,
O'Brien asserted in his special grand jury testimony that he "could not conclude" whether the person who struck Koschman was Kevin McCarthy, Denham, or Vanecko because he could not rely on Kevin McCarthy's and Denham's statements that they did not strike Koschman.
Additionally, even though O'Brien knew that Koschman's friends informed police the night of the incident that Kevin McCarthy was not the offender, O'Brien testified that "those same friends impliedly said it was also not Vanecko when they failed to pick him out of a lineup."
When O'Brien was reminded by the OSP that witnesses had stated that the person who struck Koschman was the "tallest" or "largest" in the group, and even though Vanecko was both the largest (at approximately 230 pounds) and the tallest (at approximately 6'3"), person in his group, O'Brien speculated that because the incident occurred in April, the Vanecko group was likely wearing jackets the night of the incident, "which could possibly distort someone's impression of size."
Under Illinois law, self-defense is an affirmative defense that must be raised by the defendant, not the prosecution.
In Illinois, the law of self-defense is as follows:
A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another,or the commission of a forcible felony.
According to O'Brien's 2013 special grand jury testimony, he believes the law requires him "To . . . look at all the evidence, not just what a prospective offender might say. If any witness or possible offender provides evidence that a person was acting in self-defense and I conclude that that is true, I then consider whether the response to that threat was reasonable. If it is, then no crime has been committed and I obviously cannot charge anyone with an offense."
O'Brien also testified that "whoever pushed or punched Koschman did so because they were acting in response to Koschman's aggression." In fact, according to O'Brien, regardless of whether Koschman was punched or pushed, either use of force would have been reasonable, in his opinion. However, O'Brien admitted under oath that none of the witnesses told him that Koschman threw punches or made physical contact with Vanecko immediately before Koschman was struck.
In fact, O'Brien also testified that he did not remember the McCarthys or Denham ever telling CPD or him that during the altercation they or Vanecko felt threatened in a physical way or that as they walked away, "there was any danger to them" (i.e., they did not think that great bodily harm to themselves or others was imminent).
According to O'Brien, when a person "[f]lees from the scene [as Vanecko did], such evidence may be an indicator of consciousness of guilt, but it could also mean the person did not want to be involved in law enforcement activity."
However, according to O'Brien, fleeing the scene could also "indicate the person fleeing may be fearful of being attacked again."
Page 70: Additionally, even though O'Brien and CPD did not speak to Vanecko, according to O'Brien, he was nevertheless able to divine Vanecko's actual state of mind based on not only what the witnesses told him, but also upon his "common sense as to what the average person's state of mind would have been" under the circumstances.
O'Brien explained to the special grand jury that the Koschman and Vanecko groups had "been yelling back and forth,"and thus, when Koschman continued the argument:
What options did the Vanecko group have? Run? They never would have been able to turn and run before Koschman was on them. Stand there and let Koschman strike them first? Not only would that be absurd, the law does not require such action. I believe it [striking Koschman] was more likely a reaction by someone in the Vanecko group throwing up his hands to prevent Koschman from getting to them rather than a punch. Vanecko's group had been drinking, too, and I doubt any among them would have had the time to actually make a decision to throw a punch; however, I don't know exactly what type of contact occurred.
O'Brien summed up his stance on the issue of self-defense in this matter by stating:
I concluded that if it was Vanecko who punched or pushed Koschman, it was reasonable to believe that Vanecko felt either he or another in his group were being physically threatened by Koschman and acted accordingly. I believe Koschman was physically threatening, and concluded Koschman's aggression led to him being pushed or punched.
Additionally, O'Brien testified that he was unaware of the fact that the Vanecko group rendezvoused at the Pepper Canister after the incident on April 25, 2004 (an event that was uncovered by the OSP and revealed to him during an interview with the OSP).
In hindsight, according to O'Brien, after learning of the Pepper Canister meeting, he wishes he had asked the McCarthys and Denham why they met up and what they discussed.
That is because, according to O'Brien, "[w]hen the parties to a violent act rendezvous after the act, the purpose of the meeting could be an important consideration if the purpose was to develop a consistent fictitious story about the incident."
O'Brien testified that when he left Area 3 after the May 20, 2004 lineups, he probably reported the results of his visit up SAO's chain of command, likely to Bernie Murray and Milan, but O'Brien stressed he "did not ask them what [he] should do [with the case]."
O'Brien explained further that while he does not specifically remember speaking about the Koschman case with his superiors, he is "sure they all agreed that this case was not chargeable."
Milan recalled hearing the results of O'Brien's Felony Review visit, and testified that while he cannot remember how many times he spoke with State's Attorney Richard Devine about the Koschman case in 2004, he "would bet the ranch" that he discussed the matter, including O'Brien's findings, with State's Attorney Devine once or maybe twice during that period.
Furthermore, current State's Attorney Anita Alvarez told the OSP she never discussed the Koschman case with O'Brien or State's Attorney Devine in 2004, despite her being in the supervisory chain of command, and State's Attorney Alvarez speculated that she was likely bypassed because she was not part of SAO's "good old boy network."
According to State's Attorney Alvarez, if she had been in charge of SAO in 2004, she not only would have wanted to have been made aware of the Koschman matter, but she would have wanted to have discussed it with O'Brien and CPD personnel, as well as had an opportunity to personally review the files – something she believes should have probably occurred at SAO in 2004.
According to the current First Assistant State's Attorney Shauna Boliker, she was surprised SAO did not conduct a more extensive review of the Koschman case in 2004. Boliker would have expected SAO "higher ups" to have been heavily involved with reviewing the case, due to the fact that SAO knew its actions were going to be scrutinized because of the Mayor's nephew's (Vanecko's) involvement in the matter....
On May 22, both the Chicago Tribune and the Sun-Times published articles reporting that the Mayor's nephew had been questioned in connection with the death of David Koschman.
John Gorman, Press Secretary for SAO in 2004, is quoted in the Chicago Tribune article as stating, "We were consulted about this by the police and agreed that no charges would be placed against any individual in this case at this time. There were four guys, and Vanecko was one of them."
According to Gorman, he likely got this information directly from someone in the Felony Review unit — possibly O'Brien.
On May 22, 2004, Hal Dardick of the Chicago Tribune submitted a FOIA request seeking "all police reports relating to the April 24 [sic] incident that led to the death of David Koschman. . . ."
CPD denied the request on several grounds, including that disclosure would have "interfere[d] with pending or actually and reasonably contemplated law enforcement proceedings. . . ."
One consequence of an open investigation is that it provides a grounds for denial of a FOIA request.....On or around July 12, 2004, Nanci Koschman (David Koschman's mother), accompanied by her attorney, Loretto Kennedy, met with Yawger at Area 3 headquarters.
According to what Kennedy told the OSP in 2013, Ms. Koschman arranged the meeting in order to learn more about what occurred the night her son was struck (Apr. 25, 2004).
During the meeting Yawger told Ms. Koschman that witnesses had told CPD that her son, David, was the aggressor in the incident.
(FOOTNOTE: Allen testified before the special grand jury in 2012, that "there was never a point when Koschman was squaring off to fight anyone." See Allen, Scott, Special Grand Jury Tr. at 11:3-5 (Aug. 8, 2012); see also Francis, David, Special Grand Jury Tr. at 14:4-8 (Aug. 8, 2012) ("Koschman never raised his fists or appeared to be squaring off to fight anyone. I never thought anyone would start throwing fists.") Allen also testified that Koschman was unprepared to defend himself and Koschman was "[a]bsolutely defenseless." See Allen, Scott, Special Grand Jury Tr. at 38:23-39:4 (Aug. 8, 2012). Connolly additionally testified before the special grand jury that, "I wouldn't characterize [Koschman] asbeing physically aggressive. Would not characterize him as physically aggressive. He didn't have his fists raised and didn't appear to be squaring off to fight anyone. Koschman was not attempting to strike anyone." See Connolly, Michael, Special Grand Jury Tr. at 8:12-22 (July 11, 2012). Kohler similarly testified, "I don't recall Koschman clenching fists or actually touching anyone in the other group." See Kohler, Phillip, Special Grand Jury Tr. at 8:20-9:2 (July 11, 2012). Additionally, as noted above, O'Brien testified before the special grand jury that none of the witnesses told him that Koschman "threw punches or made physical contact with Vanecko immediately before Koschman was struck.")
On November 10, 2004, Yawger submitted his concluding case supp report, using the PC login of his partner Giralamo. The report concludes:
Based upon the evidence examined in this incident, the interviews of all parties involved, and the line ups conducted, the following was concluded; the investigation of this incident did not reveal any unjustifiable behavior on behalf of the subject who either pushed or punched David Koschman as David Koschman was clearly the aggressor in this incident. Also, the actual identity of the subject who either pushed or punched David Koschman could not positively be determined.
Upon the completion of these interviews, and after conferring with ASA Darren O'Brien, it was decided that no charges would, or could be sought due to the fact that the victim in this incident, David Koschman, was clearly the aggressor as corroborated by all of the witnesses interviewed, in that David Koschman continued to attack the group of people consisting of Bridget McCarthy, Kevin McCarthy, Craig Denham, and Richard Vanecko resulting in the victim either being pushed or punched in self defense, which subsequently caused David Koschman to fall to the ground, striking his head, and causing his death.
Due to the above information, R/D's request this Involuntary Manslaughter investigation remain in PROGRESS.
The final case supp's conclusion is at odds with Yawger's request to O'Brien in May 2004, to charge the case; as well as Yawger's request to Epach to ask O'Brien to charge the case. Indeed, despite what Yawger's final case supp says, during his 2013 testimony before the special grand jury, he stated that he really did not know if Vanecko acted in self-defense.441 And although, following the submission and approval of Yawger's reports, the Koschman case — per CPD — remained open and "in progress" from November 2004 until 2011, no investigative activity at all took place during this time....
The re-investigation
On... January 17, 2011, Gilger and Spanos interviewed three of Koschman's friends: Allen, Copeland, and Hageline.
Gilger and Spanos first interviewed Copeland at his house at approximately 8:30 p.m.
Page 88: According to the first line of Gilger's GPR, Copeland "related essentially the same account as earlier reported." According to Gilger's GPR of Copeland's interview, Koschman's friends were all trying to keep Koschman away "from starting anymore trouble," when Koschman broke free and "walk[ed] back towards the other group and. . . the largest of the male whites" in the other group punched Koschman. Copeland further told Gilger he thought Koschman was "knocked out" by the punch.
At approximately 9:30 p.m. on January 17, 2011, Gilger interviewed Allen (who was living in Colorado at the time) by phone.
According to Gilger's GPR, Allen stated that after the initial bump "everyone started arguing and yelling 'screw you'" and that the people in the other group were "the aggressors." Gilger's GPR of the Allen interview also reads that Koschman "was in the thick of the argument and was also yelling."496 According to Gilger's GPR, Allen also stated that he saw Koschman get punched by the offender, who was "clearly the biggest guy of the three."...
Gilger and Spanos interviewed Koschman's other friend on the scene, Francis, by telephone on January 18, 2011. Because Francis was living in Colorado, Gilger and Spanos interviewed him by phone.
Gilger's GPR of their interview with Francis states that he saw Koschman accidentally bump into the other group.
According to the GPR, after both groups started yelling at each other, Copeland and Francis attempted to break things up since he knew Koschman was "a little mad" and had "a lil temper."
The GPR further states that everyone was walking away and Francis thought the altercation was over, when Koschman "went at this guy."
Francis testified before the special grand jury in 2012 that he was not sure whether that statement was accurate stating, "I mean, I kind of don't know what 'go after' means. I mean, he kept talking to him. He didn't go after him in the terms of — in the sense that he was, like, trying to fight him or anything like that." According to the GPR, Francis next saw Koschman get punched such that "it looked like he was knocked off of his feet."...
According to Gilger's GPR of his interview with Connolly, Connolly stated the two groups were beginning to argue when Connolly and Kohler arrived.
The GPR indicates Connolly stated Koschman was "doing most of the talking," the argument "got really heated," and Koschman "appeared to be pushed by one of the other guys."
The GPR states that Connolly saw Koschman "get pushed by someone, tripped on the back of the curb, [and] fell backwards."
During his testimony before the special grand jury in 2012, Connolly clarified that, "It was an assumption on my part it was a push because I was — my view was impeded by the other people in the group when David stepped onto the sidewalk. And then he was — I interpreted it to be a push that caused him to fall backwards. ... But I did not see a push or a punch. I was blocked. My vision was blocked. I interpreted it to be a push."....
The February 11, 2011, draft narrative concluded as follows:
In conclusion, interviews with eyewitnesses after the incident described a tall, or taller, male white subject who punched KOSCHMAN. At the time of the incident, Richard VANECKO was 6'02" and approximately 230 pounds, which is clearly taller and heavier than Craig DENHAM, and clearly heavier than Kevin MCCARTHY. When initially interviewed, Scott ALLEN and James COPELAND stated the male white (VANECKO) who punched the victim, and the male white (DENHAM) who was arguing with KOSCHMAN, ran away together. When interviewed, HAGELINE thought the person who punched KOSCHMAN was the tallest of the three subjects that morning.
The interview with DENHAM, who admitted that he and VANECKO left in a cab together and later said VANECKO was pushing him down the street before entering this cab, confirmed this fact. Interviews were conducted with Bridget and Kevin MCCARTHY and Craig DENHAM, who confirmed the fact that VANECKO and DENHAM left together.
And finally, when asked to give a statement to Area 3 Detectives following his lineup, VANECKO declined on the advice of his attorney, which only cast additional suspicion on him as the person who punched David KOSCHMAN.
Though [sic] the course of this lengthy investigation, it was clearly obvious that Richard VANECKO punched David KOSCHMAN, in spite of the fact that none of the eyewitnesses ever identified him as such.
In view of the above, the R/Ds request this be classified as CLEARED, EXCEPTIONALLY, CLOSED.
Gilger's February 11, 2011, draft narrative contains no reference to Vanecko acting in self- defense.
Additionally, though the draft contained a placeholder for what Gilger hoped would be a report of his interview of Vanecko ("On 14 Feb 2011 at XXXX hours, Richard VANECKO .......") (ellipses in original), it contained no similar placeholder for a section concerning self- defense.
The draft narrative also does not reference the January 21, 2011, encounter between Gilger and O'Brien.
As indicated in this draft, by February 11, 2011, Gilger had concluded that Vanecko had punched Koschman.
Moreover, Gilger and Spanos did not undertake any additional witness interviews or gather any additional evidence as part of their re-investigation after this date, according to their reports.
Although both Gilger and Spanos admitted that this draft reflected their beliefs as of February 11, 2011, their subsequent testimony characterized it as "just a draft."
Gilger stated: "I don't always put everything in there that I ultimately want to have in the report. . . . There were things I was going to add, and there was [sic] probably things I was going to take out, you know. But at that point when I typed it in, that's what I had so far."
For example, Gilger testified that although he had not yet included anything about self-defense, he was planning on doing so.
There is evidence suggesting that portions of Gilger's case supp report concluding the 2011 re-investigation were drafted or edited by his supervisors.
Approximately 16 days after Gilger wrote the draft narrative described above, and without any intervening investigative work performed, on Sunday, February 27, 2011, at 9:54 p.m., Sgt. Sam Cirone sent an e-mail with no subject description from his personal e-mail account, "... to Andrews' personal e-mail account, ... and Salemme at his departmental e-mail account.
The entirety of the e-mail's body was as follows:
CORRECTION #1 On 21 Jan 2011, Det. James Gilger spoke with ASA Darren O'Brien at the Cook County courthouse located at 2650 S. California. Det. GILGER informed ASA O'Brien that the R/Ds had re-investigated this incident and informed ASA O'Brien of the current progress of the investigation. ASA O'Brien stated he was consulted by Area 3 Detectives on possible charges, but after the consultation between his office and the police department, it was agreed that charges were not warranted because of self-defense.
In view of the above, and based on the fact that David KOSCHMAN broke away from his group of friends and aggressively went after VANECKO, stating, "Fuck you! I'll kick your ass!" These aggressive actions caused VANECKO to take action and defend himself and his friends from being attacked. Due to the aforementioned reasons and through the course of this investigation, it is clear that Richard VANECKO, alone, punched David KOSCHMAN, which caused him to fall backwards and injure his head, which ultimately caused his death.Based on this, the R/Ds request this be classified as CLEARED, EXCEPTIONALLY, CLOSED
Page 99: When interviewed pursuant to a proffer agreement in 2013, Cirone explained he sent the e-mail because in order to "exceptionally clear/close" a case, it must be reviewed by a commander and must go "up the food chain."
According to Cirone, he typed the e-mail in his office with Gilger present and used his personal e-mail account because "it was probably the account [he] had open."
With regard to how he received his supervisors' "corrections" to Gilger's draft report, Cirone stated during his interview with the OSP that he may have received a "marked on" copy from Andrews or Salemme, or he may received the edits via e-mail or a phone call.
Cirone could not identify who actually crafted the language contained under "Correction #1" and "Correction #2" in the e-mail.
Because the OSP's investigation was unable to locate any drafts of Gilger's report between the February 11, 2011 draft narrative sent by Det. Emiliano Leal and this February 27, 2011, e-mail with "corrections," sent 16 days later, it is unclear what version Andrews and Salemme may have edited. As stated above, the February 11, 2011 draft lacked any mention of Gilger's meeting with O'Brien or self-defense — the subject of both "corrections" in the February 27, 2011 e-mail.
Thus, the precise extent of Andrews' or Salemme's edits are unknown. When interviewed by the OSP in 2013, Andrews somewhat recalled receiving the February 27, 2011 e-mail, although he was unsure why Cirone sent the e-mail to his personal e- mail address and could not recall receiving any e-mails similar to this.
Andrews stated the e- mail would have been part of the review process for the report (which was submitted and approved the next day).559 With regard to the substance of the changes, Andrews believed he "probably asked for some minor changes," including that the narrative should be more specific and should document the exchange between Koschman and Vanecko.
According to Andrews, he did not discuss the final report with Byrne or seek approval from a supervisor to clear/close the case exceptionally.
When interviewed by the OSP in 2013, Salemme did not recall the February 27, 2011 e- mail, nor did he know why the corrections were being suggested.
Prior to being shown the e- mail during his interview, Salemme said his editing of the report was limited to minor issues such as spelling and typos.563 About 30 minutes after the e-mail containing "Correction #1" and "Correction #2," at approximately 10:22 p.m., Cirone sent another e-mail, this time only to Andrews, containing the following language:
R/Ds concluded that David KOSCHMAN, having yelled "F--- you! I'll kick your ass!", by breaking away from his group of friends and aggressively going after VANECKO was clearly the assailant in this incident. These aggressive actions caused VANECKO to take action and defend himself. This investigation has shown that Richard VANECKO, alone, punched David KOSCHMAN, which caused him to fall backwards and injure his head, which ultimately caused his death.
Based on this, the R/Ds request this case be classified as CLEARED CLOSED/EXCEPTIONALLY.
The language contained in this e-mail would eventually appear verbatim in Gilger's report.A few minutes later, Andrews e-mailed in response: "Very nicely done." ...The final paragraphs of Gilger's report summarizes the conclusions of the re- investigation into Koschman's death:
In conclusion, interviews with eyewitnesses after the incident stated the tallest of the three male subjects punched KOSCHMAN. At the time of the incident, Richard VANECKO was 6'02" and approximately 230 pounds, which is clearly taller and heavier than Craig DENHAM, and clearly heavier than Kevin MCCARTHY. When initially interviewed, Scott ALLEN and James COPELAND stated the male white since identified as (VANECKO) who punched the victim, and the male white since identified as (DENHAM) who was arguing with KOSCHMAN, ran away together. When interviewed, HAGELINE stated the male white who punched KOSCHMAN, was the tallest of the three subjects in their group. The interview with DENHAM, who admitted that he and VANECKO left in a cab together and later said VANECKO was pushing him down the street before entering this cab, confirmed this fact. Interviews were conducted with Bridget and Kevin MCCARTHY573 and Craig DENHAM, who also confirmed the fact that VANECKO and DENHAM left together.
R/Ds concluded that David KOSCHMAN, having yelled, "F--- you! I'll kick your ass!" by breaking away from his group of friends and aggressively going after VANECKO was clearly the assailant in this incident. These aggressive actions caused VANECKO to take action and defend himself. This investigation has shown that Richard VANECKO, alone, punched David KOSCHMAN, which caused him to fall backwards and injure his head, which ultimately caused his death.<p[> Based on this, the R/Ds request this case be classified as CLEARED CLOSED/EXCEPTIONALLY....
Whereas detectives and SAO in 2004 were unable to determine if Koschman was punched and by whom, the re-investigation concluded Vanecko had punched Koschman, but that Vanecko acted in self-defense.
According to those involved, the decision to identify Vanecko as the offender was made by Gilger and Spanos, and their supervisors supported that decision.
Just as police determined a re-investigation was necessary to connect the dots, CPD personnel in 2011 concluded that Vanecko was the offender through process of elimination or "connecting the dots."
According to Gilger, in his opinion it was "obvious" that Vanecko was the offender.
Unlike the detectives in 2004, Gilger and Spanos determined that it was a punch that caused Koschman to fall, rather than a push. According to Gilger, "a punch was thrown. . . . that's my investigation of the case, I feel it was a punch rather than a shove."
Similarly, Spanos indicated detectives were able to determine a punch was thrown based upon witness interviews and reviewing the case file from 2004.
Ultimately, however, Gilger's report concluded that Vanecko acted in self-defense. Specifically, Gilger and Spanos concluded that, "David KOSCHMAN, having yelled, 'F-- you! I'll kick your ass!' by breaking away from his group of friends and aggressively going after VANECKO was clearly the assailant in this incident.
"These aggressive actions caused VANECKO to take action and defend himself."
The report's conclusion that Vanecko acted in self-defense appears to be based on several faulty premises worth noting. First, Gilger's report attributed a statement to Koschman in support of the conclusion that Vanecko acted in self-defense. Namely, the report concluded that Koschman yelled "F--- you! I'll kick your ass."
Upon review of the rest of that police report, that phrase is nowhere attributed to Koschman or any other witness. Nor is that phrase attributed to Koschman in any of the detectives' handwritten notes or GPRs from 2011.
The closest source appears to be a statement recorded in Yawger's interview of Kevin McCarthy on May 19, 2004, during which Kevin McCarthy reportedly stated "at this time the primary kid (Koschman) and another kid were still swearing, calling himself, Craig, and Richard names, and saying things like 'I'll kick your ass,' etc."
Kevin McCarthy admittedly lied to police in 2004 when he told police he did not know anyone involved in the altercation.
Second, Gilger's report concluded that "by breaking away from his group of friends and aggressively going after VANECKO [Koschman] was clearly the assailant in this incident."
This conclusion also does not seem supported by other portions of the police reports or the detectives' own handwritten notes. For example, in Gilger's handwritten GPRs of his January 17, 2011, interview with Allen, Gilger recorded that Allen informed him that Vanecko's group "were the aggressors."
As Gilger acknowledged during his special grand jury testimony, the failure to include this statement was a fairly important omission that was contrary to his ultimate conclusion.
Similarly, Gilger's report attributes a statement to Copeland that Koschman "broke free" from his friends prior to being punched that is nowhere to be found in Gilger's handwritten GPRs.
Rather, Gilger admitted that his conclusion that Koschman ran back and lunged at Vanecko's group was based "predominantly" on police reports from 2004.
Third, Gilger's report concluded that Koschman's actions "caused VANECKO to take action and defend himself." This conclusion that Vanecko acted in defense of himself, or what may have caused any of Vanecko's actions, does not appear to have any basis in the witness interviews recorded in Gilger's report.
Detectives never spoke with Vanecko or took any kind of statement regarding his involvement in the incident on April 25, 2004. Moreover, Kevin McCarthy, Bridget McCarthy, and Denham all stated they did not see the moments preceding the impact in interviews with Yawger in 2004 and stood by these statements in 2011.
During his special grand jury testimony, Gilger also acknowledged he was "suspicious" of the McCarthys' and Denham's claims that they had their backs turned prior to the punch.
Finally, there also appear to be circumstances that detectives either ignored or failed to consider. In evaluating whether Vanecko may have acted in self-defense or in defense of others, Gilger's report did not reference the height and weight disparity between Vanecko and Koschman. As recorded in Gilger's report, Vanecko stood 6'3" and weighed 230 pounds in 2004 — compared with Koschman's height of 5'5" and weight of 125 pounds.
Such a disparity could be relevant to an evaluation of self-defense. Despite the re-investigation's focus on obtaining "heights and weights," there is no mention of this disparity in height and weight between the offender and the victim. In fact, detectives may have believed a disparity in size "does not matter."591 As another example, an affirmative defense such as self-defense must be raised by a putative defendant and necessarily negates any issue of lack of identification — i.e., one cannot say they did not strike the victim, but if they did, they acted in self-defense.
Several other aspects of Gilger's report call into question its reliability. On page 13 of Case Supplementary Report 8585610, Gilger supplies for the first time an explanation for why no work was performed on the Koschman investigation between April 25, 2004, and May 6, 2004.
Following a recitation of Rita O'Leary's April 25, 2004, telephone interview of Michael Connolly and immediately preceding the pronouncement of Koschman's death, the report states, "Efforts were being made to interview the additional witnesses that were at the scene of the incident."
During his testimony before the special grand jury, Gilger stated, "Well, I'm guessing they were probably going to try to find the phone numbers, or the — or find the addresses. The names and — well, they already had the names, but probably phone numbers or addresses."
Neither Andrews, Salemme, nor Cirone knew the basis for Gilger's statement that efforts were being made to interview the additional witnesses that were at the scene of the incident.
The OSP's investigation has not uncovered any efforts on behalf of anyone at CPD to interview additional witnesses between April 25, 2004, and May 6, 2004. Additionally, despite drawing very different conclusions from Yawger, detectives in 2011 expressed differing conclusions regarding the thoroughness of CPD's investigation in 2004.
According to Andrews, the 2004 investigation was thorough, as nothing "substantially different" was uncovered in 2011.
Byrne indicated he did not know why the investigation was not closed in 2004, but refused to criticize the 2004 investigation since he was not present when decisions were made.
Even further up the chain of command, Peterson opined that the 2004 investigation by CPD was not a thorough investigation and involved "poor, shoddy detective work."
Perhaps most tellingly, Gilger testified it was "absurd" to reject charges on the basis of self-defense where one cannot even identify the offender.
As noted previously, despite identifying Vanecko as the person who punched Koschman, detectives in 2011 reached the same conclusion of self-defense as detectives in 2004, without any additional evidence supporting such a conclusion....
According to CPD policy, "[a]n exceptional clearance is the solving of a criminal offense when the offender was not arrested, was not charged, or was not turned over to the court for prosecution due to unusual circumstances.Detectives must identify the offender, exhaust all investigative leads, and do everything possible to clear a case by arrest before exceptionally clearing the case."...
Uunder Detective Division policy, in order to exceptionally clear/close the Koschman investigation in 2011, detectives needed to identify an offender.
Similarly, the investigation would have had to disclose enough evidence to support an arrest, charge, and turning over of the case to court for prosecution. In light of these requirements, Gilger testified the Koschman investigation was closed in violation of Special Order 96-5 based upon his belief in a lack of sufficient information to support an arrest, charge, and turning over of the case for prosecution.
Special Order 96-5 further dictates who must approve exceptional clearances in homicide cases. The order provides that "[i]n murder investigations, if the Felony Review Unit has rejected charges against the offender, the detective will list in the Supplementary Report the reasons for the rejection and the facts which support the arrest of the offender. The detective will request an exceptional clearance for the case.
Approval for exceptionally cleared homicide cases is the responsibility of the area commander and the appropriate field group deputy chief."
page 110: As Deputy Chief Andrews acknowledged, his role as the only person authorized to approve the exceptional clear/closing of the Koschman investigation.
According to Andrews, he did not discuss the fact that the case would be exceptionally cleared/closed with any of his supervisors or anyone else in the command staff, including Byrne or Masters.
In 2011, despite Superintendent Weis' stated desire to have the case presented to SAO for a charging decision, CPD never officially presented the case for charges or submitted it to SAO's Felony Review unit....
During the course of the OSP's investigation, it discovered evidence demonstrating that the Office of the Mayor ("Mayor's Office") was involved in CPD's response to the Sun-Times January 4, 2011 FOIA request, as well as certain CPD press statements regarding the 2011 Koschman case re-investigation.
However, there is no evidence gathered by the OSP that demonstrates that then-Mayor Daley directed his staff's actions. Mayor Daley, when interviewed by OSP, stated that he learned about the Koschman incident "sometime" after it occurred, although he was unable to say exactly when.
Mayor Daley also stated that he had made it clear to his staff and the public that because he was Vanecko's uncle, he had recused himself from any involvement in the Koschman matter....
In a statement issued by (Cook County State's Attorney's Office) to the Sun-Times on February 23, 2011, apparently based upon what O'Brien told his superiors, SAO stated, "all witnesses who were questioned indicated that Koschman was the aggressor and had initiated the physical confrontation by charging at members of the other group after they were walking away."
The statement further provided that, "[a]s for the current status of the case, the Cook County State's Attorney's Office has not received any information or had any inquiries from the Chicago Police Department or any of the witnesses in connection with this case in the nearly seven years that have elapsed since the ncident."
However, it appears that at least some SAO supervisors knew of the re- investigation shortly after it began in January 2011.
On March 3, 2011, Sun-Times reporters Novak, Fusco, and Marin published an article in the series regarding Koschman entitled, "Witness in Daley Nephew Case Says Koschman Wasn't the Aggressor."
The article quoted Connolly as stating, "The state's attorney said all the witnesses involved said that David was the aggressor. That was a flat-out lie," and "[w]hat I saw was David definitely being mouthy....I did not see David attempting to attack the other person. He was definitely moving toward the taller guy but not in an aggressive fashion. From what I recall, he was probably moving in to say something else."
The article also quoted O'Brien's statements defending his handling of the matter in 2004 from the interview given to Sun-Times reporters via a conference call earlier that day.
On March 19, 2011, State's Attorney Alvarez issued a statement dismissing the need for a new investigation into the Koschman death,768 but reversed her position five days later. On March 24, 2011, Sun-Times reporters Marin and Novak interviewed State's Attorney Alvarez on camera regarding the Koschman case.769 During the interview, reporters raised the fact that some witnesses denied statements attributed to them in police reports and that one witness claimed he identified Vanecko in a lineup on May 20, 2004.
According to State's Attorney Alvarez, based on these new allegations, she indicated she would be open to an independent investigation.
Also on March 24, 2011, the Sun-Times published an article with excerpts from the interview with State's Attorney Alvarez. During the interview, State's Attorney Alvarez stated, "I think there should be an independent police investigation."
State's Attorney Alvarez suggested she would welcome review by an independent agency such as the Illinois State Police ("ISP"); although she indicated that she did not "believe we have a good faith and legal basis to bring charges."
State's Attorney Alvarez further explained during the interview, "Before we take something to the grand jury, we have to have a good-faith basis that a crime occurred and that the person we are seeking a true bill of indictment for did it."
With regard to using a grand jury, State's Attorney Alvarez stated, "We're not there at this point. It would be unethical for me to go to a grand jury at this point. I don't know if there was a crime committed here based on the facts we have. It could be justifiable."
According to State's Attorney Alvarez and her staff, she discussed the possibility of referring the matter to an independent investigative agency prior to March 24, 2011.
State's Attorney Alvarez considered referring the matter to an independent agency because she felt CPD could not fairly investigate the alleged police misconduct aspect of the case.
According to Kirk, SAO's initial thought was to send the case to either the FBI or the South Suburban Major Crime Taskforce.
It was determined, however, that both of these organizations lacked the necessary jurisdiction.
The Illinois Attorney General's Office was also considered, but since Yawger worked there, it too presented a potential conflict.
According to Hehner, SAO also evaluated the possibility of appointing someone from its own Special Prosecutions Bureau or petitioning for the appointment of a special prosecutor.
In fact, State's Attorney Alvarez directed one of her top appellate prosecutors, Alan Spellberg, to research the appointment of a special prosecutor.
In a memorandum dated March 10, 2011, Spellberg detailed his research regarding the rules and standards for appointing a special prosecutor, including whether political ties to another person alone were sufficient to warrant the appointment of a special prosecutor....
While State's Attorney Alvarez was not involved in the Koschman case in 2004, she was the Chief Deputy State's Attorney at that time. Her current First Assistant and Chief Deputy, Boliker and Hehner, were also supervisors at SAO in 2004.
Further, O'Brien, who was Felony Review supervisor in 2004, was also a supervisor under State's Attorney Alvarez after she became State's Attorney in 2008. In his April 6, 2012 Order appointing a special prosecutor, Judge Toomin determined that SAO possessed an institutional conflict of interest requiring the appointment of a special prosecutor.
According to Kirk, State's Attorney Alvarez ultimately decided not to seek a special prosecutor but to have her office keep the case. She did decide for investigative purposes only to refer the case to ISP because in her mind it had previously investigated crimes involving CPD personnel, had the necessary resources, had a good working history with SAO, and was known for conducting thorough investigations.
However, State's Attorney Alvarez chose ISP even though she knew that Hiram Grau — who was employed as a CPD Deputy Superintendent in 2004786 and as Deputy Chief of the Investigations Bureau at SAO in 2011 — would soon become the agency's director.
According to State's Attorney Alvarez, she knew prior to March 22, 2011 that Grau would be taking over at ISP, but she believed the transition would take several months, and if Grau did arrive before the ISP's investigation of the Koschman case was over, ISP could have "walled" Grau off from the case....
On April 4, 2011, Keen sent a letter to State's Attorney Alvarez rejecting the referral.
Keen's letter stated, "I have determined that the Illinois State Police is not the appropriate entity to conduct the requested review of the 2004 investigation. Accordingly, the case file is enclosed and is being returned for further handling as you deem appropriate, whether by naming an independent, special prosecutor who, unlike ISP, if warranted, could convene a grand jury to hear statements made under oath, or by referring the matter to another criminal justice entity with similar powers."
Upon learning of ISP's decision, State's Attorney Alvarez called Keen to express her disappointment; he too provided no explanation for the rejection....
On January 6, 2012, WLS-890 radio talk show host Bill Cameron interviewed State's Attorney Alvarez. Part of the interview included several questions regarding the Koschman matter. During the interview, State's Attorney Alvarez indicated it was still unclear whether SAO would be opposing the petition. State's Attorney Alvarez commented on the strength of the case, stating:
Mayor Daley didn't have a good relationship with the rank-and-file CPD and that's the truth, there are you know, but you have to look at what occurred in this case in the simple fact, you know, people looked at lineups and did not identify [sic] any prosecutor knows that's a fatal flaw in your case if you don't have identification and any defense attorney would be doing backflips if his client did not get identified in a case, so there are flaws — there are serious flaws...You know, we're not even sure who threw the punch and that's the conflicting evidence that we have looked at. At the time this happened no one identified him as being the one, and we don't even know if it was [sic] punch or push.
State's Attorney Alvarez's comments regarding a lack of certainty that Koschman was punched contrasted with CPD's conclusions in 2011 that Vanecko alone punched Koschman and Scott Allen and James Copeland's statements in 2004 and 2011, as the only two witnesses who saw the moment of impact, that Koschman was punched. Judge Toomin noted that comments such as these by State's Attorney Alvarez arguably call into question whether SAO could have independently reviewed the matter.
On January 31, 2012, SAO filed its brief opposing the appointment of a special prosecutor, relying heavily on witness statements given by Koschman's friends in arguing a lack of an evidentiary basis for the appointment....On December 3, 2012, the special grand jury indicted Vanecko for involuntary manslaughter in connection with Koschman's death. State's Attorney Alvarez made a statement that same day that SAO's grand jury investigation had been looking into the case for "months, almost close to a year."
When interviewed by the OSP, State's Attorney Alvarez explained that she meant IGO's investigation had lasted a year, even if her office had not utilized the grand jury for the whole period.
While IGO conducted over 30 interviews in 2011 and early 2012, SAO did not use the grand jury at all in 2011 and conducted six interviews in 2011 and early 2012. Between January and April 2012, SAO presented one witness and one statement of a witness before a grand jury....
Evidence of a Conspiracy Spanning Both 2004 and 2011
The Special Prosecutor's investigation ...did not uncover evidence to prove beyond a reasonable doubt the existence of a conspiracy that spanned from the initial investigation into Koschman's death in 2004 through the re-investigation in 2011.
In order for there to be a conspiracy, there must be an agreement of some kind.
Additionally, in order to prove the offense of conspiracy, while unnecessary to demonstrate all co-conspirators were acquaintances or took part in all overt acts in furtherance of the conspiracy, a prosecutor must still demonstrate the existence of a conspiracy and each co-conspirator's specific intent to join that conspiracy.
The Special Prosecutor's investigation did not uncover sufficient evidence to prove beyond a reasonable doubt that the same conspiracy existed in both 2004 and 2011 in connection with Koschman's death.
As detailed herein, the Special Prosecutor's investigation revealed that the same individuals involved with the investigation into Koschman's death in 2004 were not involved in CPD's re-investigation or SAO's involvement with the case in 2011.
While the Special Prosecutor's investigation revealed some contact between certain of those individuals (for example, communications between Yawger and Walsh in 2011 concerning the missing Koschman homicide file), there was insufficient evidence to prove the existence of an agreement or the specific intent of any individual to join such an agreement.
While the destruction or concealment of evidence or case files related to the Koschman case could constitute an overt act in furtherance of a theoretical prior conspiracy in 2004 to obstruct justice,847 the Special Prosecutor's investigation did not uncover evidence sufficient to prove such a conspiracy beyond a reasonable doubt....the Special Prosecutor has found no documentary evidence proving beyond a reasonable doubt that any employees of CPD or SAO recklessly, knowingly, or intentionally violated Illinois law during their participation in the Koschman matter in 2011 and 2012.
Likewise, after questioning nearly 150 witnesses, the Special Prosecutor has identified no testimonial evidence proving beyond a reasonable doubt that any employees of CPD or SAO recklessly, knowingly, or intentionally violated Illinois law during their participation in the Koschman matter in 2011 and 2012....
CPD's 2011 re-investigation ultimately concluded that Vanecko punched Koschman, but that Vanecko had acted in self-defense. Vanecko never provided a statement to CPD about the April 2004 Division Street incident, including anything relating to his actual and subjective belief that such force was necessary to prevent imminent death or great bodily harm to himself or another.
However, to be clear, Vanecko was not legally or constitutionally obligated to make any statement to CPD. The self-defense conclusion was significant because it was CPD's primary basis for not seeking charges in 2011.....
The Special Prosecutor's investigation identified limited evidence that is arguably consistent with a theory that Gilger and Spanos manufactured CPD's 2011 self-defense determination.
To begin with, three witness statements recorded by the two detectives have been called into question by these witnesses. In each instance, the inaccuracies identified by the witnesses in these statements tended to support CPD's 2011 determination that Vanecko acted in self-defense.
Page 160: First, according to Gilger and Spanos' concluding case supp, which is based upon the witness statements they memorialized in their 2011 GPRs, "Copeland stated that they were trying to pull KOSCHMAN away from starting anymore [sic] trouble" before he was struck.
But during his testimony before the special grand jury in 2012, Copeland testified this statement was not an accurate reflection of what happened the night of the incident, stating, "No. Again, I mean, I do remember, you know, gesturing and nudging him to kind of move away, but physically pulling him back, I don't remember doing that."
Second, Gilger's GPR of the 2011 Allen interview stated that Koschman "was in the thick of the argument and was also yelling." But, when Allen appeared before the special grand jury in 2012, he testified that the statement was inaccurate "[b]ecause it's not like [Koschman] was in the thick of the argument. It was one giant argument and we were all yelling, so no, I would not—I did not say that."
Finally, according to the GPR of the 2011 Kohler interview, Kohler stated "pushing and shoving happened between the two groups."
Third, in 2012 before the special grand jury, Kohler testified that he did not believe that statement was accurate: "I believe I stated that they were arguing, but I don't think I said anything about pushing or shoving at that point."
Additionally, although Gilger and Spanos' concluding case supp in 2011 states that Koschman yelled "F-- you! I'll kick your ass," this precise language is not supported by any of the interviews in either 2004 or 2011.
Indeed, Gilger and Spanos incorporated this misstated and unattributed quote into their 2011 concluding case supp, without making it clear who provided it or when. The closest source for this language appears to be a statement recorded in Yawger's interview of Kevin McCarthy on May 19, 2004, during which Kevin McCarthy stated "at this time the primary kid (Koschman) and another kid were still swearing, calling himself [McCarthy], Craig [Denham], and Richard [Vanecko] names, and saying things like 'I'll kick your ass,' etc." Kevin McCarthy never provided a statement to Gilger and Spanos, and to the extent Gilger and Spanos were relying on a paraphrased statement from Kevin McCarthy made not to them, but rather to the 2004 CPD detectives, the trustworthiness of that statement is undermined by the fact that Kevin McCarthy lied to CPD in 2004 on at least two occasions.
Finally, Gilger and Spanos' concluding case supp did not relate the fact that in his 2011 interview, Allen, one of only two people at the scene of the incident who saw the physical contact between Vanecko and Koschman, stated that Vanecko and his group "were the aggressors." Allen's statement undermines CPD's 2011 determination that Vanecko acted in elf-defense.
Even Gilger himself acknowledged during his special grand jury testimony in 2013 that the failure to include this particular statement from Allen in the concluding case supp was a fairly important omission that was contrary to CPD's 2011 determination that Vanecko acted in self-defense.....
The Special Prosecutor's investigation identified limited evidence that was arguably consistent with a theory that certain CPD commanding officers engaged in criminal activity, with requisite criminal intent, to manufacture a phony self-defense determination.
As detailed above in Section IV., C., the Special Prosecutor obtained two versions of Gilger and Spanos' concluding case supp—an initial draft from on or about February 11, 2011, and the final draft from on or about February 28, 2011.
The earlier draft made no mention of self-defense, while the later draft concluded that Vanecko had acted in self-defense. Furthermore, the Special Prosecutor obtained e-mails sent during the time in between these two drafts (February 27, 2011) in which Andrews and Cirone discussed "corrections" related to the subject matter of self- defense....
During the course of his investigation, it became apparent to the Special Prosecutor that in order to understand what happened during CPD's 2011 re-investigation of the Koschman case, the special grand jury would have to hear testimony from the detectives who handled the 2011 re-investigation. Because those detectives, Gilger and Spanos, refused to testify voluntarily before the special grand jury based upon their Fifth Amendment privilege, the OSP thought it was necessary, in order to fulfill Judge Toomin's mandate, to seek court-ordered "use immunity" to compel their testimony....
The evidence discussed in this report supports the findings by Judge Toomin in his April 6, 2012, Memorandum of Opinion and Order in which he decided to appoint a special prosecutor, wherein he stated:
Section 7-1 of the Illinois Criminal Code provides:
'A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.'
Inherent in the ability to raise a legitimate claim of justifiable force is the requirement that a person seeking to avail himself of the defense be able to present some evidence of six salient factors, to wit: (1) force was threatened against a person; (2) the person threatened was not the aggressor; (3) the danger of harm was imminent; (4) the threatened force was unlawful; (5) the person actually and subjectively believed a danger existed that required the use of force applied; and (6) the person's beliefs were objectively reasonable.
Here, the viability of the self-defense claim imputed to Vanecko by the police and [SAO] rests solely upon the oft-repeated conclusion that Koschman was the aggressor. Yet, that determination derives from conflicting statements provided by Koschman's companions as well as independent witnesses suggesting that Koschman was verbally rather than physically aggressive. Vanecko's friends provided no meaningful insight, claiming their backs were turned when Koschman was struck.
First, there is no credible evidence that Koschman employed any physical force against Vanecko. On the contrary, the quoted materials from the [IGO] investigation incorporated in petitioners' reply clearly undermine that claim.
Second, there is only conflicting evidence that Koschman was the aggressor, albeit verbally.
Third, there is no indication that there was any danger of imminent harm to Vanecko, particularly given the disparity in size between himself (6'3", 230 pounds) and Koschman (5'5", 140 pounds).
Fourth, the submissions before this court are barren of any suggestion, much less evidence, that Vanecko actually and subjectively believed that a danger existed that required the use of force he applied.
If nothing else, one aspect of the police investigation is uncontroverted, no police officer or [SAO] prosecutor ever interviewed or spoke to Vanecko. In fact, Detective Yawger, in an interview with the Sun-Times, lamented how Vanecko's attorney frustrated his efforts to speak with his client after initially promising Yawger that Vanecko would talk to investigators.
Yet, it is the existence of a person's subjective belief that the evidence must show. In the absence of such evidence, an objective observer might well express amazement as to how the police or [SAO] could so blithely divine the subjective feelings of Vanecko. Clearly, they could not.
Under these circumstances, the public could well conclude that the entire claim of self-defense came not from Vanecko, but, rather, was conjured up in the minds of law enforcement. A discerning citizen could well surmise that it simply is an argument made of whole cloth. Whether Vanecko may, in fact, have a valid claim of self-defense should properly be for him to raise, not the police.
[SAO's] concurrence in what one might charitably characterize as a rather creative exercise of the police investigative processes offers little confidence in [SAO's] ability to conduct the kind of objective 'fresh look' that this matter requires. This is not to suggest that there is merit to petitioners' claim of political or personal interest. Nonetheless, [SAO's] efforts to denigrate the evidence against Vanecko, coupled with [SAO's] recurring calls for an independent investigation evokes a decided interest in the matter sufficient to warrant appointment of a special prosecutor.


text:
Muhlenbergia capillaris
- Common Name(s):
- Gulf muhly, Mule grass, Pink hair grass, Pink muhly grass
- Cultivar(s):
- 'Lenca'
- Categories:
- Native Plants, Ornamental Grass, Perennials
- Comment:
Pink muhly grass is an absolute showstopper source of late-season color. As an ornamental grass, it is a great compliment to those landscape beds with fading summer annuals. The delicate plumes of flower panicles create a striking pink haze above the dark green, glossy foliage.
This perennial is attractive individually but really makes a big show when used in a mass planting. Pink muhly grass can reach a height of 4 feet and a width of 3 feet. Give it plenty of sunshine and transplant into soil that is well drained.
A North American native, pink muhly grass sounds too good to be true. Long-lived, with little to no insect or disease pests and highly resistant to deer grazing, this ornamental grass is perfect for the low-maintenance garden. Muhly grass tolerates heat, humidity, drought, poor soil and is highly salt tolerant.
Delicate pink flowers mature on long, narrow, wiry leaves in the fall. The grass produces tiny, purplish seeds.
Regions: Mountains, Piedmont, Coastal Plain
Seasons of Interest:
Bloom: Fall; Fruit/Seed/Nut: Fall/Winter
Wildlife Value: Highly deer resistant. Provides excellent cover year round. Seeds are eaten by songbirds and small mammals.
- Light:
- Sun
- Height:
- 3-4 feet
- Zones:
- 6-9
- Form:
- Clump; fine textured basal foliage
- Soil:
- Well drained soil does well in hot dry sandy sites; very drought tolerant
- Inflorescence:
- Airy inflorescence often colored pink, purplish red, purplish gray; drys to a light buff
NCCES plant id: 640

subset: commoncrawl


text:
Monday-Friday: 8:00 a.m. to 5:00 p.m.
We Are Located at 3500 J Wayne Reitz Union! click link to see building map
Notary Service Hours
Monday-Friday: 9:00 a.m. to 11:30 a.m. and 1:30 p.m. to 4:00 p.m.
Certain documents such as Real Estate Closings, Durable Powers of Attorney, Living Wills, etc. may require an appointment. Please contact our office if you have one of these documents.
UF Students: Free with Gator 1 ID Card.
Exception: 1 free certified copy of passport and $5 for each additional certified copy.
Non-UF Students: $5.00 per notary. $10 per certified copy of a passport.
Florida's Landlord/Tenant Act Summary
Towing Bill of Rights
Trespass Towing Complaints
What You Should Know About Motor Vehicle Repair
Identity Theft: What to Know, What to Do
BUSTED: The Citizen's Guide to Surviving Police Encounters
Online Shopping Safety
Buying or Selling a Vehicle
DISCLAIMER: The brochures are for informational purposes only and are not intended to be a substitute for legal advice nor does it establish an attorney-client relationship with this office. If you are having a possible legal issue, consult with an attorney immediately before taking any action.
A Gator's Guide to Renting
All About Automobile Insurance
Lease Tips
Everything You Need to Know About Joint Leases
Cosigning a Loan
What You Should Know About Rental Car Insurance
Buying or Selling a Vehicle in Florida
International Students
Don't Get Chomped!: Swamp Survival Guide
Spring Break Survival Guide
EXPUNGEMENT-SEALING QUESTIONS.doc
Name Change Fact Sheet
Roommate Rental Agreement
Sublease Agreement - With Landlord
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Divorce - Marital Settlement Agreement
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Jon graduated from Louisiana State University Law School (J.D.) in 1986 with honors. He was a member of the Louisiana Law Review and Order of the Coif. He obtained his undergraduate degree from LSU in 1983 (B.S., General Studies). Mr. Adcock practiced law in Baton Rouge, Louisiana for over 15 years, primarily in the area of general civil and commercial litigation, before coming to Florida. He remains a member of the Louisiana Bar.
Mr. Adcock became a member of the Florida Bar in 2003. He has been an Assistant General Counsel with Student Legal Services since March of 2004. He advises and represents students in a variety of legal matters involving landlord/tenant, consumer, insurance, traffic and criminal cases.
Associate Director
Alisha was born and raised in Key West, Florida. She attended the University of Florida as an undergraduate from August 1984 through August 1988, receiving a Bachelors of Art in Sociology. After working for a year and half, Ms. Tabag started law school at the University of Florida College of Law in January 1990. She received her Juris Doctor degree in December 1992. Ms. Tabag has been a member of the Florida Bar and an attorney at Student Legal Services since 1993.
Layne was born at Shands Hospital in Gainesville, Florida and lived at "Flavet" (University of Florida Veteran's Housing) as a child. He received his Bachelor of Science from the University of North Carolina at Asheville in 1991. Prior to entering law school, Layne taught English in Hyogo Prefecture, Japan for three years. He received his Juris Doctor from the University of Florida in 1996. He entered the Florida Bar in 1997 and was in private practice with the Galigani Law Firm before joining Student Legal Services in December, 2011. He has bench and jury trial experience, and has represented clients in civil litigation, criminal and traffic defense, and family law.
Ray was born and raised in Jacksonville, Florida. He attended the University of Florida as an undergraduate, and completed a degree in Biological Psychology in 1994 with highest honors. Ray also attended law school at the University of Florida, graduating in 1997. More recently, Ray completed an LLM degree in Taxation through the University of Alabama, graduating with honors.
Ray joined Student Legal Services in 2013 with over 15 years' experience in private practice as a civil and criminal litigator. He has tried over 70 civil and criminal cases before juries. Ray currently advises and represents students in multiple legal matters, including landlord-tenant, misdemeanor criminal, family, commercial/consumer, traffic, and insurance matters.


text:
Dr.Drang of Leancrew.com makes a valid point about iMessage. It isn't a free service because every text uses a small amount of your valuable data allowance.¹ He has switched off iMessage in favour or his unlimited text plan. It's a fair point. If a text is costing you nothing, it is actually more expensive to use the "free" iMessage.
What I suspect he has overlooked is the exorbitant cost of international texts. If you live here in Europe it's a good chance your friends are scattered around the continent. If you text them you pay through the nose, so iMessage (and other services such as Viber) are a much cheaper alternative. While in the US last week I used Viber extensively for text messages, simply because I've encouraged most of my friends to install the app.
As iMessage percolates down to a majority of iOS² users I can see that it will be a seamless way of messaging at the best price.
¹ All "free" alternatives to standard cellular calls or texts use data. This applies equally to Viber, Tango, Skype as it does to Apple's iMessage.
² iMessage also works on iPad (over cellular data or wifi) and iPod touch (wifi)


text:
Weight is a very delicate topic in our society. With 69.2% of the US adult population suffering from being overweight, many people are searching for a magic pill that will help them lose weight quickly and easily.
While there is no magic weight loss pill, weight loss supplements can definitely boost the weight loss efforts of their users helping them achieve a healthy weight.
Weight loss supplements products come in many forms. They can be pill, capsules or tablets and they can contain natural or chemical ingredients.
These supplements are formulated to accelerate the user's weight loss goals by suppressing appetite, blocking the absorption of fat, or increasing metabolism. Continue Reading →


text:
Bonfire night is upon us again and the Poynton & Hazel Grove Round Table are putting on a bonfire and fireworks extravaganza as usual in Poynton Park on Saturday 6th November from 6pm.
All in the name of local charities and good causes.
Full details can be found at:
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text:
|ULTIMATE WARRIOR, THE (director/writer: Robert Clouse; cinematographer: Gerald Hirschfeld; editor: Michael Kahn; cast: Yul Brynner (Carson), Max Von Sydow (The Baron), Richard Kelton (Cal), Joanna Miles (Melinda), William Smith (Carrot), Stephen McHattie (Robert), Darrell Zwerling (Silas), Mel Novak (Lippert); Runtime: 94; Warner; 1975)
film should
have been
entertaining, but instead felt tiresome."
Reviewed by Dennis Schwartz
A promising near-future, sci-fi adventure film. Its leaden direction, weak acting, and incredibly inadequate set designs, cause the good premise to collapse into an apocalyptic-like failure. This film should have been entertaining, but instead felt tiresome. There was no fun to be had, no noteworthy dramatics, or worthy dialogue. What you get to see is Yul Brynner for most of the film stripped of his shirt and fighting back against the street-people, and either knifing them to death or throwing them down a shaft.
The film opens in New York City in 2012 A.D. after an Atomic holocaust caused a plague, killing off most of the population and all of the food supply. The streets are bare except for gangs who ravage anyone who wanders outside. Max Von Sydow is The Baron. He is head of a commune that is on their last legs, but is able to survive because of a scientist, Cal (Kelton), who is able to cultivate seeds for vegetables. Cal is married to Baron's daughter Melinda (Miles), who is expecting their child soon.
Yul Brynner is pictured as this giant, standing mute for days in front of the library waiting for someone to make him an offer for his services as a warrior. Baron and some members of his compound venture outside to recruit Yul by offering him vegetables, a woman, and cigars. It will be the cigars that seals the contract, as Yul joins the compound and helps the men get safely back to their compound and past Carrot's (Smith) street people who attacked them.
When Yul tells Baron about an island off the coast of North Carolina that he is heading for, Baron tells him this compound can't last too much longer: it is difficult growing food on the roof, the commune members are restless and unreliable, and Carrot's gang is too strong for them. It is only a matter of time before they will attack the gated compound itself.
Warning: spoiler to follow.
Baron tells Yul to take Cal and Melinda to that island through a secret passage under one of the buildings on 29th street, and with the seeds that Cal cultivated he can start life anew there. But before the plan can be implemented, Carrot's gang attacks Cal's tomato garden and throws Cal off the roof. With Cal dead, Baron gets Yul and Melinda to secretly leave immediately with all the seeds. When the compound discovers what happened they crush Von Sydow to death.
The climax has Carrot and his boys going into the dark tunnel with torches after Yul, Melinda, the seeds, and the baby boy Melinda gives birth to while escaping. It is now up to Yul to get them to North Carolina.
Dennis Schwartz: "Ozus' World Movie Reviews"