The Government does a valiant job of arguing for a higher guideline range in a pleading entitled "Objections to Presentence Report" (available on PACER.). At yesterday's hearing, one of the five witnesses testified he spent 30 years in prison as a result of his false, torture-induced confession:

Anthony Holmes testified Thursday that he spent 30 years in prison for a murder he didn't commit after Burge electrically shocked and suffocated him into making a false confession.

"He tried to kill me," Holmes read in a halting voice from a prepared statement. "It leaves a gnawing hurting feeling, I can't ever shake it. I still have nightmares. . . . I wake up in a cold sweat. I still fear that I am going back to jail for this again."

Burge's lawyers are asking for a two year sentence. He was charged and convicted for lying about the torture in a lawsuit filed by an innocent inmate sentenced to death. That inmate has since been pardoned.

The fact that other cops wrote sentencing letters of support for Burge, referring to him as a "policeman's policeman," shows that the cancerous mentality is still spread throughout the system and accepted. For that reason alone, a 15 to 21 month sentence seems too light. It sends the message that there are no serious consequences to torture. This is a case where a long sentence could serve as a significant deterrent to others. But it is unlikely to happen.

The charges of conviction:

• Count One: corruptly obstructing, influencing, or impeding an official proceeding in violation of Title 18, United States Code, Section 1512©(2);
• Count Two: perjury, in violation of Title 18, United States Code, Section 1621(1); and,
• Count Three: corruptly obstructing, influencing, or impeding an official proceeding in violation of Title 18, United States Code, Section 1512©(2).

The probation department set Burge's offense level at 14. The Government says it should be 40 due to a cross-reference of both U.S.S.G. § 2J1.2, and § 2J1.3, which applies § 2X3.1 (the Accessory After the Fact guideline). By applying that cross-reference to the Civil Rights guidelines in U.S.S.G. §2H1.1, the offense level is 40.

The issue for the judge is that in Burge's case, the offenses occurred during a civil rather than criminal case or investigation, although the Government argues at the time Burge lied, he knew a criminal investigation was pending and his lies would obstruct it.

The defendant’s obstructive conduct occurred during the time that a special prosecutor was considering criminal charges against the defendant and others. The defendant’s untruthful answers to the Hobley interrogatories – while occurring within the context of a civil case – “involved” or “included” the obstruction of a criminal investigation. Moreover, the application of the cross-reference achieves the guideline’s stated goal of punishing obstructive conduct based on the seriousness of the conduct being obstructed. Therefore, §2J1.2©(1)’s cross-reference provision should be applied.

The Government also argues "relevant conduct."

Defendant’s obstructive conduct of lying in the Hobley interrogatories was simply an extension of defendant’s continued denials of these type of allegations since the 1970's. As demonstrated at trial, the defendant on multiple occasions lied in criminal cases about similar allegations. Thus, defendant’s obstructive conduct in the Hobley case was “part of the same course of conduct . . . or plan” – i.e. denying torturous conduct to avoid detection.

...Defendant’s conduct has infected numerous criminal prosecutions in which he participated, and has called into question many other criminal prosecutions, as well as the criminal justice system that allowed his conduct to go unchecked.

...Defendant’s false statements, repeated over many decades, as to his lack of involvement in, or lack of knowledge of, abusive conduct, did obstruct many earlier state criminal proceedings, and therefore, the cross-reference is equally applicable under a relevant conduct approach.

In calculating the guidelines using the civil rights violation, the Government says:

Because the underlying offense is a Civil Rights violation, U.S.S.G. § 2H1.1 applies. Pursuant to U.S.S.G. § 2H1.1(a)(1), the offense guideline for the civil rights violation is calculated by applying the “offense guideline applicable to any underlying offense,” which “means the offense guideline applicable to any conduct established by the offense of conviction that constitutes an offense under federal, state, or local law.”

It then proceeds to lay out Burge's conduct: On Anthony Holmes (assault):

Specifically, defendant used an electric shock device that he obtained, stored, and modified over time, to torture various individuals in his custody. Additionally, defendant used specific methods of torture – including electric shock and suffocation – because these methods did not leave visible marks.

...The assault committed by defendant involved the use of an electric device that was used to shock Mr. Holmes, and a plastic bag to deprive Mr. Holmes of oxygen. The victim sustained bodily injuries,including a split lip, and unconsciousness due to suffocation.

For Melvin Jones (aggravated assault):

The assault committed by defendant included the use of an electric device to cause injury to Mr. Jones. Additionally, the defendant threatened Mr. Jones by pointing a gun at Mr. Jones and threatening to “blow his black head off.”

For Andrew Wilson (aggravated assault):

The assault committed by defendant included the use of an electric device to cause injury to Mr. Wilson....Additionally, the defendant threatened Mr. Wilson by putting a gun in Mr. Wilson’s mouth to coerce a confession....The victim sustained bodily injuries, including: second degree burns that left permanent scars, as well as severe pain from electric shocks applied by the defendant and others under his command.

Shadeed Mu'Mim (aggravated assault):

Specifically, the defendant unloaded his revolver, leaving one round in the gun, and then proceeded to pull the trigger of the gun while it was pointed at Mr. Mu’min’s head to coerce a confession.The victim sustained bodily injury, including: loss of consciousness due to suffocation.

The Government also seeks enhancements under the guidelines' "vulnerable victims" provision:

Defendant’s victims were vulnerable victims in that they were in police custody (and typically handcuffed), charged with serious criminal offenses, and under defendant’s complete control....Andrew Wilson was handcuffed against a hot radiator such that he incurred burns on his chest, face, and upper thigh, and Shadeed Mu’min was handcuffed while he was suffocated to the point of passing out.

Back to the cancer he spread: The Government seeks a role in offense increase because of Burge's supervisory role:

Specifically, defendant was the Commander of Area 2 Violent Crimes. At trial, evidence was presented that he supervised several other officers who engaged in torture, including: Peter Dignan, John Byrne, Charles Grunhard, John Yucaitis, and other unidentified officers.

In other words, Burge wasn't the only torturing cop in Chicago. The Government also says he should receive an increase because of his perjury at trial:

Defendant falsely denied having committed obstruction of justice by testifying in his own defense at trial. Specifically, defendant denied ever having engaged in abuse of any suspects in his custody, or having ever witnessed improper abuse.

He also lied during the criminal trial of two defendants:

Specifically, defendant committed perjury in Mr. Wilson’s and Mr. Mu’min’s criminal cases when he testified under oath that he did not abuse either of them.

The guidelines are not mandatory, and the Court must consider the “nature and circumstances of the offense;” “the seriousness of the offense;” the need “to promote respect for the law;” the need to “provide just punishment for the offense;” and, “the need to provide adequate deterrence to the criminal conduct” 18 U.S.C. § 3553(a)(1) - (2).

The Government points out what Burge's conduct has cost the city of Chicago as a means of stressing the seriousness and scope of his misconduct:

In December 2007, four civil rights cases stemming from Area 2 and linked to the defendant were settled for a total of $19.8 million dollars. In addition, through June 2010, the City of Chicago has paid 9 in excess of $10 million in attorneys’ fees to defend itself and its officers in Jon Burge-related cases. In short, almost $30 million in taxpayer dollars have been consumed because of the defendant’s conduct.

The Government quotes Judge James Zagel:

Policing is a lofty calling, vital to the public weal, often heroic in action. The grace and worth of the work usually remains unseen and unappreciated by those it serves. In grime and squalor, facing danger and fury, bearing witness to what is worst in men and women-even police officers sometimes lose sight of the dignity of their service.

It is a profound insult to the dignity of the service when a police officer submits testimony which the officer knows to be false in order to secure a warrant or indictment. Using evidence known to be false violates a fundamental duty of the officer.

At trial, Burge's lawyers argued he was "a hero of sorts." Another judge in one of the civil lawsuits against him said:

Behavior like that attributed to Burge imposes a huge cost on society: it creates distrust of the police generally, despite the fact that most police officers would abhor such tactics, and it creates a cloud over even the valid convictions in which the problem officer played a role. Indeed, the alleged conduct is so extreme that, if proven, it would fall within the prohibitions established by the United Nations Convention Against Torture (“CAT”), which defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession ...,’ thereby violating the fundamental human rights principles that the United States is committed to uphold."

Not surprisingly, in his response to the Government's objections (also available on PACER) Burge disagrees with the application of the cross-referenced guidelines. He also seeks a sentence lower than his 15 to 21 month guideline range based on: his military service in Vietnam and Korea; his poor health (he has prostate cancer that has been treated and he has received a favorable prognosis; knee trouble, back trouble, arthritis, pulmonary disease, congestive heart failure, chronic bronchitis and sleep Apnea)

Burge is in serious denial. His lawyer writes:

Moreover, hardened criminals and sociopaths are emboldened notwithstanding the outrageousness of their violent conduct. They know they have an “out” by claiming police abuse, and even suing the City to boot.....The government also cites a “cost” analysis. But nobody can prevent a devious criminal from filing a specious lawsuit and thus requiring expenditure of resources.

The Judge has ruled she "accepts the offense determination contained in the Presentencing Report and Sentencing Memorandum at pages 11–17. The court reserves its ruling with respect to issues raised by the government in its objections to the Presentencing Report and Sentencing Memorandum, or in the defendant’s response thereto, that are not addressed in this opinion and order."

In other words, the Court agrees with the Probation Department and Burge that only the obstruction of justice and perjury guidelines apply, not the cross-referenced guidelines for assault and aggravated assault, that the relevant conduct must relate to the count of conviction which is Burge's lies in the civil case, that no other enhancements are applicable, and that Burge's offense level is 14 with a guideline range of 15 to 21 months.

Burge is asking for a sentence below the 15 to 21 months. It sounds like the judge will stick to the 15 to 21 months or very close to it. Since the Bureau of Prisons can designate Burge to one of its medical facilities, I think it's unlikely his medical conditions will get him a lower sentence.

It's too bad Burge wasn't charged with assault and related offenses way back when. But he wasn't, and despite the Government's valiant effort, it looks like he's going to get a pass he morally doesn't deserve.