Prosecutor says her office’s ‘checks and balances’ didn’t work before misleading in-court statement on Adam Toledo shooting

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Cook County State's Attorney Kim Foxx on Dec. 7, 2020. - Youngrae Kim/TNS

CHICAGO — A misleading description of 13-year-old Adam Toledo’s fatal shooting by police was given in court by a prosecutor because of a communication breakdown at top levels of Cook County State’s Attorney Kim Foxx’s office, an internal investigation found.

“The checks and balances that should have been in place for someone to be able to review, to ensure that what was being said in court aligned with the information that the office had, it didn’t work,” Foxx told the Chicago Tribune in an interview.

The prosecutor who gave the inadvertently faulty statement in court last month, James Murphy, was restored to his position after about two weeks of administrative leave, according to a news release Wednesday making the investigation’s findings public. Murphy “did not intend to give the impression” that Toledo was holding a gun at the precise moment he was shot, the news release stated.

But shortly before the findings were released, rank-and-file prosecutors received an email from Foxx announcing the resignation of her second-in-command, Jennifer Coleman, a 26-year veteran of the office who was named first assistant about five months ago.

Wednesday’s news release did not mention Coleman by name. Neither did Foxx, who in the interview with the Tribune declined to comment on personnel matters.

But she did stress prosecutors were conducting completely separate investigations into what happened that night: one into the shooting itself, and one regarding the man who was with Toledo.

And only the first assistant had active knowledge of both investigations, Foxx said — indicating that only Coleman was in a position to ensure that the information Murphy read in court was complete and appropriate.

In short, the Tribune has learned, Murphy had an unexpectedly brief amount of time to write a description of the shooting, and because of the way the office is structured, he did not have access to all of the evidence that had been turned over. And prosecutors failed to quickly recognize how Murphy’s statements could have been misinterpreted, the news release stated.

Foxx’s office faced some of the heaviest criticism it has seen in years after it partially disavowed its in-court description of Toledo’s shooting last month.

The description was given in court April 10 during a court hearing for Ruben Roman, the 21-year-old man who was with Toledo the night of the shooting. Roman allegedly fired the shots that drew police to the scene that night, and he was initially slated to appear on charges of gun possession and reckless discharge.

But in the hours before court, Coleman instructed prosecutors to add a charge of child endangerment, according to a source, meaning they would have to publicly provide details tying Roman to Toledo’s death. That left Murphy with a very short window of time to put together the “proffer,” that is, the in-court statement outlining prosecutors’ evidence.

Foxx was not consulted on whether to add the child endangerment charge, a source told the Tribune.

In court that afternoon, Murphy told Judge Susana Ortiz that Toledo was turning toward the officer, who shouted: “Drop it, drop it.”

“(Toledo) has a gun in his right hand,” Murphy told the judge. “The officer fired one shot … striking him in the chest. The gun that the victim was holding landed against the fence a few feet away.”

That was the sole public narrative of the shooting for almost a week, until April 15, when the Civilian Office of Police Accountability released multiple videos of events that night.

And each sentence of the proffer, in isolation, appears to be supported by the video.

But viewed in aggregate, the videos appear to show Toledo with a gun in his hand that he tosses just before he turns toward the officer with his hands up — all within a split second.

Less than an hour before the release of the videos, the state’s attorney’s office issued a statement saying Murphy had not “fully informed himself” before speaking in court days earlier and should not have left room for listeners to infer that Toledo was holding a gun at the exact moment he was shot.

The matter drew scornful national attention, with major media figures accusing prosecutors of lying and covering up the shooting.

Foxx said she first saw media accounts of Murphy’s proffer the day after court, and they did not square with the description she had been given of the shooting.

“Is this a representation that got lost in translation with the media, or was this an impression that we gave, or did we say these facts? Those were the questions that I had looking at the reporting,” she said.

On the following Monday, April 12, she watched the video for the first time and found that it did not line up with the way reporters were describing her office’s in-court account, she said. So she assigned a staffer to look into it, speak with Murphy, pull transcripts and “see where the gaps were,” she said.

That is partially why it took prosecutors so long to step back from Murphy’s initial description, Foxx said.

“We lost time, one, because it hadn’t been caught before I brought it to (people’s) attention and two, once I brought it to the attention ... there was not an appreciation of the urgency of the matter,” she told the Tribune.

The Toledo matter was particularly complicated because separate divisions of the state’s attorney’s office were simultaneously conducting separate investigations into what happened that night.

The felony review unit examined evidence from the Chicago Police Department in order to determine whether Roman should be charged in connection with his actions that night.

But it is the law enforcement accountability division that is investigating whether to charge the officer who shot Toledo. It got its evidence from the Civilian Office of Police Accountability.

The accountability division is walled off from nearly every other part of the state’s attorney’s office, by design, so that the fraught work of investigating police shootings can be conducted as independently as possible, Foxx said. That unit reports directly to the first assistant and is intended to have limited interaction with the chain of command that governs other divisions.

So while both units were investigating overlapping parts of that night, the accountability division did not share evidence with felony review, Foxx said.

Murphy said in court last month that he had seen video of the shooting himself.

But as per protocol, he did not have access to certain evidence that had been obtained by the accountability division, Foxx said, including “videos, the enhancements of videos, reports (and) interviews.”

However, “there was a member of the executive team that had insight into both of those incidents, and the information available that LEAD had and the information that felony review had,” Foxx said.

When asked specifically if she was referring to Coleman, Foxx noted only that the accountability division reports directly to the first assistant and is outside the chain of command that other units follow.

“(The problem wasn’t) that information was siloed, it was siloed by design. The check and balance was, despite the silo, there was insight that could have alleviated the situation on April 10,” she said.

Meanwhile, the office is reviewing the way it trains prosecutors to give bond proffers, and will ensure that further “checks and balances” work the way they are supposed to.

Foxx said she regretted that her office was “a part of distracting” from the key issue of the shooting itself.

The accountability division is still investigating whether to charge the officer who shot Toledo with any wrongdoing, and Foxx stressed the importance of making sure that “when we have cases like this, particularly in this case of a 13-year-old boy who was killed by a police officer, that that investigation is free from politics, is free from pressures, and is done with the highest level of integrity for the family and for the accused officer.”