Evidence Destruction:
Another Problem at the Chicago Police Department
 J. Nicolas Albukerk and
Giel Stein
Despite its duty to preserve audio recordings of emergency 911 calls and police radio communications, the City of Chicago’s Office of Emergency Management and Communications (“OEMC”) is routinely and unlawfully destroying this important evidence.  Specifically, as confirmed by the recent federal district court decision in Colyer v. City of Chicago (2016), all but those audio recordings whose preservation has been requested beforehand in writing are destroyed by OEMC after only 30 days of their creation.  This practice undermines the truth seeking function of our judicial system by endangering the ability of prosecutors and especially defendants to preserve potentially relevant evidence of what happened during or immediately after events that are at the heart of civil and criminal cases.
The importance of the recordings kept at OEMC is demonstrated by the statutory presumption that they are to be retained.  50 ILCS 205/7.  To overcome this presumption, OEMC must first submit an Application for Authority to Dispose of Local Records to the Cook County Local Records Commission (“LRC”).  The Application delineates on an on-going basis what OEMC must do to dispose of its records.  OEMC’s Application represents, among other things, that the records it wants to destroy “do not have sufficient administrative, legal, or fiscal value to warrant their further preservation” and that they “are not needed for any litigation either pending or anticipated.”  Ill. Admin. Code, Title 44, Subtitle C, Chapter V, Part 4500.30(a)) and OEMC Application for Authority to Dispose of Local Records in Cook County.
Next, if the LRC approves OEMC’s Application, the department must then submit a Records Disposal Certificate to the LRC at least 30 days before it disposes of any records.  OEMC’s own Records Disposal Certificate requires it to further affirm its compliance with the conditions of the Application and that the records it wants to destroy “contain no probative evidence.”  Unless the LRC authorizes the Disposal Certificate, OEMC cannot dispose of the itemized records.
For some time now, however, OEMC has turned a deaf ear to its legal obligations.  The sworn testimony of OEMC’s Director of Information Systems, Zachary Williams, reveals that the department takes no steps to preserve recordings after 30 days, unless requested to do so.  Macneice v. City of Chicago (March 31, 2015, Deposition of Zachary Williams).  To this troubling admission Mr. Williams added that he does not know of anyone, himself included, whose job it is to determine if recordings are needed for anticipated litigation.  And yet, to procure the LRC’s approval to dispose of records, OEMC has been representing in its disposal applications that the records its wants to destroy are legally immaterial.
Given the scandal-plagued history of Chicago law enforcement and all the scrutiny that such departments are under these days, one might think that OEMC would be strongly incentivized to uphold rather than break the law.  But that does not appear to be the case.  OEMC’s practice of disposing of audio recordings after only 30 days, unless expressly asked not to, unlawfully shifts its burden to determine if recordings have legal value onto whoever might tell OEMC of the recordings’ value or suffer the prejudice of their loss.  The evidence destruction that results from such burden shifting defies the Constitution’s due process clause, Illinois law, and common sense.
OEMC says it is “committed to closely partnering with local, regional, state, and federal partners to achieve seamless integration and complementary missions” .  Taking OEMC at its word, this means it is well-positioned to ask its fellow law enforcement departments within 30 days of a recording’s creation if “either pending or anticipated” litigation requires the recording’s preservation.  Consider as just some obvious examples that within those first 30 days victims may have yet to press charges, suspects may not know that they are being investigated, and police reports that reveal the existence of relevant recordings to attorneys who could seek to preserve them may not be available.  The actual or potential relevance of recordings related to such examples, among others, is easily discoverable by OEMC’s law enforcement partners within the first 30 days of the recorded events.  Moreover, modern relatively inexpensive digital storage options mean that the harm caused by OEMC’s unlawful evidence destruction far outweighs any burden it may incur to preserve recordings until any uncertainties about whether they can be legally destroyed are resolved properly.  
OEMC website also proclaims that the department is committed to professionalism, accountability, and integrity.  The department’s present records destruction practice sends a different message.  OEMC’s certification that the emergency recordings it seeks to destroy are legally immaterial is an unsubstantiated and misleading representation that falls well short of the proactive assurance the department must give the LRC to get its informed consent to destroy those recordings.  OEMC’s practice also means that all too often, defendants and prosecutors may have already lost the opportunity to preserve relevant recordings before anyone is handcuffed or brought before a judge.  As the United States Supreme Court observed, “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair.”  Brady v. Maryland (1963).  It is high time for the State’s Attorney and other law enforcement officials to wake up and stop OEMC’s unlawful evidence destruction practice.
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