Andre Curry, 22, talks about his felony conviction for posting a Facebook photo of his daughter bound and gagged with tape being reduced to misdemeanor domestic battery. (Chris Walker, Chicago Tribune)
A Cook County judge today reversed himself, reducing the conviction to a misdemeanor for a dad who posted a Facebook photo of his 22-month-old bound and gagged with tape.
Judge Lawrence Flood had convicted Andre Curry in November of aggravated domestic battery and aggravated battery, both felonies, and was scheduled to sentence him today when he did an abrupt about-face.
In reducing Curry’s conviction to misdemeanor domestic battery, the judge said that after reviewing the law, he found no intent to obstruct the child's breathing. He sentenced Curry to 18 months of probation and ordered him to take parenting classes.
Despite his change of heart, Flood said that Curry showed an extreme "lack of judgment."
"In your rush to show everyone how funny you were, you used...a helpless 22-month-old child who was completely dependent on you as a prop," Flood said. “This was not funny, OK? I want you to understand the gravity of your lack of judgment in this case."
Curry thanked the judge in a soft voice and apologized to his family.
"I'm sorry for everybody who’s been on the edge of their seats out there," he said.
Curry, 22, had been free on bond since his felony conviction but had faced up to 7 years in prison before the judge changed his mind.
At trial, Flood had acquitted Curry of unlawful restraint but found him guilty of the two battery counts, saying in a brief ruling that by placing tape over the girl's mouth, he had obstructed her breathing for his own enjoyment.
"To use a child...as a toy or a prop in an odd attempt at humor is conduct of an insulting or provoking nature," Flood said at the time.
Curry told police he was playing with his daughter one night at their South Side home and used blue painter’s tape to bind her ankles and wrists and cover her mouth. He then snapped a photo and uploaded it on his Facebook page.
Across the top of the photo were the words: "This is wut happens wen my baby hits me back," according to prosecutors and police reports. The message was followed with a winking emoticon.
Family members have said that Curry is playful and the photograph was meant to be a joke.
But the image went viral on the Internet, prompting a flood of calls to police and state child-welfare authorities from Curry’s friends on Facebook and others who had seen it.
After Curry’s felony conviction in November, Curry’s attorney, Sam Adam Jr., blasted prosecutors, saying they had overcharged the case because of the publicity. He said the domestic battery law wasn’t intended to punish a loving parent who made a mistake but didn’t injured his child.
He filed a motion asking Flood to reconsider the verdict, arguing that the judge had incorrectly found that Curry had impeded the child’s breathing or attempted to strangle her, elevating the charge to a felony. The eight-page filing contained innocuous examples of someone having their mouth covered, including one photo of a child playfully holding her hand over the mouth of President Barack Obama during a photo op.
In reversing his ruling today, Judge Flood said he agreed that prosecutors had not proven there was any “intent to strangle” or to keep the child from breathing. The judge cited testimony from both police and Curry’s sister that the tape was over the child’s mouth for only a matter of seconds.
It is extremely rare for a trial judge to overturn his own ruling. Typically, if a case is reversed it comes after an appeal is filed before the Illinois Appellate Court.
After the hearing, Adam, a veteran criminal defense attorney who has tried hundreds of cases at the Leighton Criminal Court Building, estimated he wins only about 1 percent of his motions to reconsider. He said trying to convince a judge he or she was wrong is a tricky maneuver, but that most judges know it’s not a personal attack.
“You have to be very careful when you say, “I think you’re wrong here,’” Adam said. “But I have a client.. I believe in, and I believed that the judge was wrong on what the state proved.”
After the hearing, Curry hugged his pastor, Torrey Barrett, who has hired Curry to mentor other young fathers as part of the KLEO Community Life Center that Barrett runs in the Washington Park neighborhood. Curry said he hoped his story would help others remain a positive force in their children’s lives.
“From the bottom of my heart, I’m sorry for the pain I put everybody through, everyone who had to see that picture,” Curry said.
Asked what he learned from the ordeal, Curry said emphatically, “Think before you do.”
Curry, who spent 39 days in jail before he was freed on bond, said the experience has humbled him but not made him bitter or angry.
“I think for my actions I deserved to be put through this. It was actually a life-learning experience for myself,” he said.
Curry said he knew that as his daughter grows older, she will hear stories about the case and possibly even see the picture. “It’ll just be something we’ll sit back and laugh at as a family like ‘Look what daddy went through for you,’” he said.
He said he was looking forward to seeing his daughter soon. Since his release from jail, Curry was allowed only sporadic, supervised visits with his daughter. That restriction will be lifted as long as he completes the parenting classes and stays out of trouble.
“I’m gonna pick her up and throw her in the air,” Curry said, smiling. “And I’m going to catch her and spin her around.”
jmeisner@tribune.com
