On Jan. 28, 2015, the day before I was to retire as a Cook County Circuit Court judge, I heard the last trial of the thousands I had presided over during my 18 years on the bench.
It started as a typically short, one-witness juvenile court trial, involving a teenager charged with the relatively minor property crime of possessing a stolen vehicle, though he was merely a passenger in the back seat. It ended with the state introducing into evidence a videotape of the most shocking incident of police misconduct I had seen during my 38 years in the criminal justice system.
I clearly remember two thoughts as I watched the video of then-officer Marco Proano shooting 16 times into a car filled with unarmed teenagers: A belief that the shots would not have been fired if the occupants of the car had been white, and a sense of obligation to make sure this officer was never allowed back on duty with a gun. What did not occur to me was that the officer would face criminal prosecution.
After the teen’s trial, his lawyer informed me that he had settled a federal civil lawsuit on the minor’s behalf that morning, leading me to assume that there would be no further legal proceedings. I focused then on finding an appropriate way to make the video public, as I felt that doing so would create enough publicity to ensure that Proano was removed from the Chicago Police Department.
A distressing characteristic of the American legal system is that bad actors can avoid public disclosure of their actions through settlements and plea agreements. We have seen corporations that commit financial and environmental crimes, celebrities who engage in sexual assault and harassment, and police who act with unlawful brutality take advantage of a legal system that allows their deeds to remain secret. Judges have the power to include public disclosure of the bad conduct in any plea agreement, but, under the pressure of heavy caseloads, usually do not insist on it.
In most police shooting incidents, the Cook County State’s Attorney’s office typically has charged someone with a crime–often the person on the receiving end of the police bullets. These state’s attorneys treated police as clients, not just witnesses. (Kim Foxx, I believe, will be different from Anita Alvarez and her predecessors.) They thought that bringing charges would make the shooting appear justified, especially in cases like the Proano shooting, where it clearly was not.
I must emphasize that in this case, there was absolutely no evidence that the teenager on trial acted in a manner, or possessed the required mental state, to prove his guilt. It was as weak a case as I had ever seen, and I doubt that charges would have been brought if a policeman’s gun had not been discharged during the incident. Ironically, it was the decision to charge the teenager that ultimately led to the video being made public. Following the trial, I provided the video to The Chicago Reporter. (The Reporter published the video and an accompanying story in June 2015.)
Since it is improper for a judge to attempt to influence another judge’s decision, unless advice is sought, I have requested that this article be published after Proano’s sentencing, though it was written before the sentencing. (U.S. District Judge Gary Feinerman sentenced Proano to five years in prison Monday and called the shooting “exceptionally unjustified.”)
Proano’s actions were extremely reckless, showing an utter disregard for the lives of the occupants of the car and the people in the residential neighborhood where he fired his gun. Six of the 16 bullets he fired did not hit the car and could have gone into the surrounding homes or hit a bystander. Two of the teens were injured. It was miraculous that no one was killed. The jury’s guilty verdict, on two felony counts of using excessive force in violating the teens’ civil rights, was totally justified by the facts.
As I have stated, my initial reaction to the video was that Proano must be removed from the police force, not that he should be imprisoned. Since he no longer poses a threat to the public as a police officer, the rationale for a prison sentence is deterrence. In my opinion, prison–though it may be necessary to protect the public from future crimes–is not a strong deterrent for the vast majority of individuals who commit typical “street” crimes. By contrast, police officers, who work in an organization designed to serve and protect the public, will see a colleague’s prison sentence as a powerful deterrent to the commission of reckless and unlawful acts, such as those in this case.
If imprisonment is imposed, however, I feel that a sentence shorter than the eight years the government is requesting would both serve the interests of justice and be a strong general deterrent to other police officers. After a shorter prison sentence, Proano, who has no prior criminal convictions, would be able to raise his three children and hopefully find some kind of redemption.
Finally, I want to express my gratitude to the U.S. attorney’s office for seeking an indictment and bringing this case to trial. It would have been very easy to ignore this case: Fortunately, no one died, and it did not garner the national publicity that other fatal police shootings have sparked. Indeed, following the change of administration in Washington, the acting U.S. Attorney Joel Levin continued to prosecute the case, despite a very public change in philosophy in the new Trump administration. The attorneys and staff involved deserve tremendous credit for spending time and resources on a case that will help change police practices in Chicago and elsewhere, by making officers aware of the consequences they will face if they commit criminally reckless acts.
Andrew Berman was a Cook County Circuit Court judge from 1996 to 2015 and, prior to that, a public defender since 1976.