Nanci Koschman, David’s mother, talks with reporters Friday. “I didn’t think it was going to go my way,” she said.


Staff Reporters


The ruling had been made, and everyone was leaving Judge Michael Toomin’s courtroom Friday at 26th and California, but Nanci Koschman remained, sitting in the

front row, quietly weeping. Nearly eight years had passed since her 21-year-old son, David Koschman, had died after being punched in the face in a drunken confrontation with Richard J. “R.J.” Vanecko, a nephew of then-Mayor Richard M. Daley.

And finally someone in a position of authority agreed with her that something should be done. The judge, finding fault with the way the Chicago Police Department and the Cook County state’s attorney’s office handled the investigation, said he would appoint a special prosecu-

tor to re-examine the case and determine whether criminal charges should be filed against anyone. “It’s been a long time coming,” said Koschman, a widow from Mount Prospect who had lost her only child with David’s death. Her family was with her — her

sister, Susan Pazderski, and brother-in-law, Richard Pazderski. So were the lawyers who took on her cause at no charge, Locke E. Bowman and G. Flint Taylor. “I didn’t think it was going to go my way,” Koschman said. “Not a lot has gone my way in the eight years

These are excerpts of the comments gressor . . . ♦ ♦ ♦ made in court Friday by Cook County “Quite simply, we have a dead Circuit Judge Michael P. Toomin in body. This is not a whodunnit. We announcing his ruling that a special know who done it. There’s a known prosecutor will re-examine the 2004 offender and yet no charges. death of David Koschman after “The take in this building since being punched by Richard J. “R.J.” I’ve been coming around since Vanecko, a nephew of then-Mayor 1967: When you have a dead body, Richard M. Daley: someone’s going to jail. Not in this “We have sworn testimony that case. is unrebutted undermining the “A decided interest in veracity of police reports, preventing or impeding the contradicting reports that prosecution, a denigration Koschman was physically of the existing exculpaaggressive, statements of tory evidence and, probwitnesses incorrectly, inacably the most prominent curately memorialized . . . . impropriety, the fiction of ♦ ♦ ♦ self-defense, supported only “Based upon procedural Judge by oft-repeated conclusions irregularities, the absence Michael P. that David Koschman was of recorded police activity the aggressor, a host of in the inception of the case, Toomin statements in the exhibits, lapses, delays, failure of the identification process, false reports detectives, particularly Detecand what I might term the ‘missing tive [James] Gilger, the last to be quoted, Superintendent Phil Cline, files syndrome,’ an affliction common to both the police department Mr. O’Brien and the state’s attorney herself. as well as the state’s attorney’s “But when we look to the reoffice. quirements of the law, we see a lot “More troubling to the court, more is required. Even assuming, however, is a series of factors, the evolution of this investigation from even assuming that David Koschman possibly was the aggressor inception down to the present time, troubling questions that have — and I don’t make that assumption — we look to 7-1 of the Illinois yet to be answered. Criminal Code . . . ‘A person is jus“2004: Charges were declined, tified in the use of force against anVanecko was not identified, Mr. other when, and to the extent that, Koschman was deemed the aghe reasonably believes that such gressor. conduct is necessary to defend “2011: Vanecko is now identihimself or another against such fied. What is he identified as? He’s other’s imminent use of unlawful identified as the killer. force. However, he is justified in “Make no mistake about it. the use of force which is intended Koschman, well, he’s still the agor likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent immindent death or great bodily harm to himself or another or the commission of a forcible felony’ . . . . ♦ ♦ ♦ “. . . the uncontroverted aspect of the police investigation here is that no detective or prosecutor ever interviewed or spoke to Mr. Vanecko. And yet police and prosecutors, from the inception of this case, somehow were able to divine Mr. Vanecko’s subjective feeling . . . ♦ ♦ ♦ “Articulations of self-defense are something that experienced practitioners are familiar with . . . . So the conclusion that must be drawn: This was a defense conjured up by police and prosecutors, made of whole cloth, ipsy-dipsy — a fancy term that smart lawyers use: It’s so because I say it’s so — in this court’s opinion, a gross fiction . . . . ♦ ♦ ♦ “I want to speak to some core values. [Koschman family attorney] Mr. [Locke] Bowman expressed these . . . that the criminal law is to be enforced evenhandedly, without favor to the powerful, to the wealthy, the well-connected, that Robert Vanecko and David Koschman stand equal before the law, and, in this building, we seek to uphold those values. “That’s what we’re about. Sometimes we meet success, sometimes not. “This calls to mind in my career a matter that I was involved in



many years ago, the case of Delizon Bush. I’m sure you never heard of him. August of 1969, 63-year-old man, 145 pounds, en route home from his work, stopped in Lincoln Park and entered a mens’ washroom. A younger man, casually dressed, came in, walked up and down behind him. He was a police officer. He claimed that Bush was committing an act of public indecency . . . He arrested Mr. Bush forcibly. A single punch, a nose bleed. “Mr. Bush was taken to Henrotin Hospital — it doesn’t exist anymore — on the North Side, the Near North Side of Chicago. He had a nose bleed, according to the police officer. The doctor who examined him found multiple fractures of his chest wall, four broken ribs, two black eyes and fracture of his nose. Those were the facts in Delizon Bush. He was charged with public indecency and resisting arrest. “The case went from the East Chicago District to Branch 46 and ultimately to trial. My opponent was a young state’s attorney who recently retired as chief judge of the Illinois Supreme Court . . . . There was an appeal. Mr. Bush was fortunately enough in the [appeals court] panel that he appeared before, consisting of former State’s Attorney John Stamos . . ., Ulysses Schwartz and Justice George Leighton. The Appellate Court was not happy with the officer . . . . “I’ll share with you Justice Leighton’s concluding remarks: ‘Therefore, on evidence which also discloses that the defendant was arrested and charged with a crime the jury found he did not commit, that he was beaten to a point that required two days of hospitalization, affirmance of this conviction would cap indignity with injustice. Judgment is reversed.’ “And what is the application of Delizon Bush to the instant case? Neither Delazon or David Koschman are powerful, wealthy, wellconnected — rather, both occupied modest stations in life. “Delizon Bush, at 63 years of age, was a messenger boy. He delivered small packages and legal pleadings in the Loop and elsewhere by bicycle and by foot. And David Koschman, well, the sun was just rising over him. Both suffered indignities and injustices — Mr. Bush, his corrected by the due processes of the law, David Koschman, who the system has failed up to this point. “The conclusion the court draws from the materials presented — the showing of an institutional conflict, appearance of impropriety, the respondent’s efforts to denigrate the evidence against Mr. Vanecko, coupled with the state’s attorney’s recurring calls for an independent investigation — evokes a decided interest in this matter sufficient to warrant appointment of a special prosecutor. “To deny that request would be — to paraphrase Justice Leighton — to cap indignity with injustice. Petition is granted.”

since I lost my son. “I’ve been frozen in time. I’m glad somebody will look into this now.” She has been grieving for years, anguished over her son’s violent death and mortified that the police blamed him for what happened, saying he’d been physically aggressive toward Vanecko — a claim that Toomin declared Friday had been “conjured up by police and prosecutors” scrambling to find a justification to avoid charging Daley’s nephew. “It was hard to keep hearing about David being the aggressor,” she said. “That was the first thing

that was told to me when I met with not deserve to have anybody touch the police in 2004 — that it was him.” Her son, who was a all my son’s fault. And, as a part-time college student, mother, you . . . want to think: and his high school budI didn’t teach him to go out and dies from Mount Prospect fight with people. And it was had been drinking on Rush so hard for me every night to Street on the spring night in put my head down, thinking April 2004 when the police that he was to blame. say he bumped into a group “He talked, yes. He had a of four people, including mouth. So does his mother. David Vanecko, on Division Street But I don’t think that, if I’m Koschman at Dearborn Street. An aryelling at you, that you have a right to put your hands on me for gument followed. Within minutes, any reason if I don’t have a weapon the 5-foot-5, 140-pound Koschman or my fists aren’t raised . . . I want was on the ground, out cold, after people to know that David may have being punched in the face. He fell been drunk and angry, but he did backward and struck his head.

His assailant — identified by the police as the 6-foot-3, 230-pound Vanecko only last year, in the wake of a Chicago Sun-Times investigation — ran away. Koschman died of brain injuries after 11 days at Northwestern Memorial Hospital during which doctors removed a portion of his brain in a vain effort to save him. His death remained classified as an unsolved homicide until January 2011, when a request from the Sun-Times for police files prompted a re-investigation that ended with the police closing the case without seeking criminal charges. They said Vanecko — although he threw the

only punch and never spoke with the police or explained why — had acted in self-defense. In December, citing the SunTimes’ investgation, Koschman, her sister and brother-in-law and their lawyers petitioned the court seeking the appointment of a special prosecutor. “It’s been a long 14 months,” she said, “and I’m just very happy the judge listened to everything we had to say. I hope I finally get some justice for David. I’ll go see him at the cemetery this afternoon and tell him that we won one step. Now, we’ll go to the next step. “I can sleep, maybe, tonight.”

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ntil Friday, the four-decades-old case of The People of the State of Illinois versus Delizon Bush hardly ranked as a landmark in the annals of criminal jurisprudence. As best I can tell, Chicago newspapers took no notice whatsoever when a Cook County jury convicted Bush of resisting arrest in a Lincoln Park washroom in 1969, nor when a state Appellate Court reversed the conviction in 1972. In all the years since, the Bush decision has only rarely been cited for its legal precedent — and even then only as a footnote. Yet Friday the case formed the basis for one of the most extraordinary rulings in Chicago legal history when a choked-up Circuit Judge Michael Toomin cited Delizon Bush in explaining why he was ordering a special prosecutor to investigate the 2004 death of David Koschman at the hands of then-Mayor Daley’s nephew, Richard J. Vanecko. Simply put, Delizon Bush seems to have been a case that introduced a much younger Toomin to the hard truth that sometimes there’s an unseen finger pushing the scales of justice — and that it takes someone of courage to make it right. Toomin showed that courage Friday — just as he had seen three Appellate Court justices display it for Bush in 1972 — with a scathing rebuke to Cook County State’s Attorney Anita Alvarez for her efforts to block an outside investigation of Koschman’s death and its handling by police and prosecutors. Toomin said he saw parallels between Koschman and Bush for their “modest stations in life’’— and by implication that they were overmatched by more powerful forces influencing the justice system. Now a veteran jurist with three decades on the bench, Toomin was just two years out of DePaul Law School when he became Bush’s defense attorney in 1969 — though already age 31 due to a stint in the Marines. Bush was a 63-year-old messenger, who delivered small packages in the Loop by bicycle and on foot. Like Koschman, Toomin noted, Bush was slightly built at 145 pounds. Bush was on his way home from work on August 29, 1969, when he stopped in a washroom on Stockton Drive in Lincoln Park. A younger man weighing 180 pounds and casually dressed in sport shirt and slacks


was either already in the washroom or walked in a short time later and came up behind Bush. This man was a police officer, and he accused Bush of committing public indecency — the alleged act never articulated. The police officer said Bush knocked him down in an attempt to flee. The officer said he had to arrest Bush forcibly, punching him once to subdue him. The officer testified Bush was taken to the hospital for a bloody nose. The emergency room doctor who examined Bush said he had two black eyes, multiple fractures of the chest wall consisting of four broken ribs and a broken nose. He was hospitalized for two days. Though the court record is silent on this point, I think we can take note that this took place in an era when police routinely rousted gay men in public washrooms. Toomin said his courtroom opponent on the Bush case was a young assistant state’s attorney who recently retired as Chief Judge of the Illinois Supreme Court — referring to Justice Thomas R. Fitzgerald though not naming him. A jury acquitted Bush of public indecency, but found him guilty of resisting arrest. On appeal, though, Justices John Stamos, Ulysses Schwartz and George Leighton found more credible Bush’s version that the younger man stomped him after he questioned whether he was a police officer — citing the extent of Bush’s injuries and other inconsistencies in the policeman’s testimony. Noting Bush’s acquittal on the underlying charge and the beating he took by police, Leighton wrote that affirming “this conviction would cap indignity with injustice.” As he invoked the Bush case, Toomin paused for a drink of water, seemingly choked up by the memory. But moments later, his voice was strong and perhaps a touch angry as he summed up his reasons for approving the request for a special prosecutor — citing the state’s attorney’s institutional conflict, appearances of impropriety and “efforts to denigrate the evidence” against Vanecko coupled with Alvarez’ earlier calls for an independent investigation. “To deny that request,” Toomin said, “would be, to paraphrase Justice Leighton, to cap indignity with injustice.” Delizon Bush got his justice. David Koschman, though still waiting for his, is closer than I would have ever thought possible.

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