CHICAGO (CN) – A white Chicago police officer claims in a motion to dismiss that federal prosecutors used self-incriminating testimony to secure an indictment against him for shooting into a car full of black teenagers.
Marco Proano was charged last year with two counts of deprivation of rights for using excessive force, both punishable by up to 10 years in prison, stemming from a 2013 incident in which he injured two of the six teens in a car he pulled over for speeding on the city’s South Side.
The police car dashcam video of the shooting was released in 2015 when a Cook County judge hearing the criminal case of one of the boys sent it to a local newspaper, the Chicago Reporter.
Judge Andrew Berman, now retired, told the Reporter at the time that he was unsettled by the video.
“My first reaction was, if those are white kids in the car, there’s no way they [would] shoot,” he said.
The video shows Proano coming up to the car, which is backing away from him, and opening fire into it. It was later found that he discharged all 16 rounds in his gun.
Proano claimed he feared for the safety of the car’s occupants after the driver bailed and a backseat passenger hit the gas pedal. A pellet gun was recovered from the car but no evidence showed Proano saw it before firing.
After its investigation, the city’s Independent Police Review Authority found the shooting to be unjustified and recommended Proano be fired.
It is the statements gathered by the IPRA that Proano says were inadmissible in court because they violated his Fifth Amendment rights, adding in his motion that the government “presented that evidence to the grand jury which based the indictment on these immunized statements.”
“There can be no dispute that defendant, in fact, made…protected statements about the very subject at issue in this case. Consequently, the government bears the burden of establishing legitimate, independent sources for this evidence,” Proano’s motion to dismiss states.
Proano says Assistant U.S. Attorney Georgia Alexakis did not do so and relied on his compelled testimony instead.
“The grand jurors were informed of the contents of the immunized testimony and relied on that immunized testimony when it returned a true bill,” he claims. “The direct use and derivative use of defendant’s…protected statements simply does not leave him in the same position as if he had exercised his Fifth Amendment privilege against self-incrimination.”
The motion also claims the government did not adequately instruct the jury as to the laws at play in Proano’s case.
“The indictment must be dismissed because it is tainted with information obtained by the government’s acquisition and use of immunized statements of the defendant. Additionally, the indictment must by dismissed because the government presented false, inaccurate and misleading facts to the grand jury,” Proano says.
The city eventually settled with the two teens who were shot – as well as a third whose eye was hurt when he was tackled by another officer – for $360,000.
The car that was pulled over was later found to be stolen and three of the boys were charged. The teen whose case Berman heard was found not guilty.
Proano, represented by attorney Daniel Q. Herbert, was put on paid desk duty after the incident, his third shooting in a 10-year career with the Chicago Police Department. He pleaded not guilty to the charges against him.
“He shouldn’t be allowed to be out there with a gun,” Berman told the Reporter in 2015. “He has shown callous disregard for human life.”
Assistant U.S. Attorney Alexakis did not respond Friday to a request for comment on the motion.