LATEST RECANTATION IN CRUZ CASE SOWS NEW SEEDS OF DOUBT
October 11, 1995
Steve Schmitt, 26, a northwest suburban tool-and-die maker, answered the door of his apartment early on the evening of July 21, 1994, and found a DuPage County sheriff's detective and an assistant state's attorney wanting to talk to him.
He said he guessed quickly why they were there. One week earlier, it had been all over the local news that the Illinois Supreme Court had overturned the murder conviction of Rolando Cruz, a man Schmitt had spoken often with when both were in the DuPage County Jail in 1989 as Cruz awaited his second trial on charges that he helped abduct, rape and murder 10-year-old Jeanine Nicarico of Naperville in 1983.
Schmitt said he told the men he had no inside knowledge of the Cruz case; that Cruz had never said anything to implicate himself in the crime. Schmitt said the prosecutor, Joe Birkett, and the detective, Warren Wilkosz, told him they had sources, whom they wouldn't identify, who said otherwise.
"They said, 'If you won't give a statement, you could get arrested for withholding evidence,' " Schmitt said. "And, I thought, 'Well, I don't need to get arrested for anything."'
He'd been steadily employed and out of trouble for several years, he said.
"I was really uncomfortable with those guys because of my past. It made me nervous. I just did what they said."
He agreed to write a statement, and bent over the paper on his coffee table. "I sort of sat there tapping my pen," he said. "I had writer's block. So they told me, 'Why don't you start off by saying something about how you knew him?' "
Schmitt began writing, and, he said, the suggestions continued. "They were saying, 'Well, did you write anything about how Cruz had a vision of the crime? Well, how about that Cruz was supposed to do a burglary and it went sour?' " Schmitt recounted in a three-way interview this week, arranged and monitored by his attorney, George Lynch of Downers Grove. "I said, 'Well, OK,' and I'd write that down."
While he was writing, he said, Wilkosz and Birkett spoke to each other about aspects of the case. Schmitt said he took this as a cue to include those aspects in his statement.
He said he further added details of the allegations against Cruz that were fresh in his mind from news accounts.
The result was a damning piece of new evidence: A one-page, signed statement from a jailhouse snitch saying Cruz spontaneously admitted to having been a go-along observer as Brian Dugan committed the horrible crime, and that Cruz said he later told authorities what had happened but disguised his account as a dream or vision.
What may seem striking about this statement is how perfectly it met DuPage County's new needs: In overturning Cruz's conviction, the state high court had said that in his next trial (now set to begin Oct. 24), the jury or judge would be allowed for the first time to consider the compelling criminal history of serial rapist and murderer Brian Dugan, the man who has long said he alone committed the Nicarico crime and whose DNA puts him among the 1 in 3,333 men who could have raped the girl. The statement also bolstered the undocumented and highly dubious police accounts of Cruz's alleged vision statement.
In the context of the long history of the case, however, it is less striking.
The jailhouse snitches who have come forth against Cruz have always told stories that roughly match whatever the prosecution's current theory of the case happens to be. None, for example, mentions Dugan until Dugan was arrested and had confessed, more than two years after the crime.
And what seems downright ordinary by now is Schmitt's claim that he altered his testimony under pressure from those determined to convict Rolando Cruz.
Nearly two weeks ago in this space, a key witness in Cruz's 1990 trial, Steven Pecoraro, recanted his testimony and said investigators had encouraged his previous deceptions. At least four other witnesses in the Nicarico investigation have at one time or another alleged similar manipulations.
Wilkosz declined to comment. Birkett, who is no longer on the case, said "at no time did I or anyone else in my presence coerce or intimidate Steve Schmitt. He provided the information voluntarily."
"They were smooth," said Schmitt who, for now, remains on the list of possible prosecution witnesses. "They knew what they were doing. But the truth is that Cruz always told me he didn't do it, that he was innocent. I never heard him admit anything."
DUPAGE INDICTMENTS DON'T UNDERMINE FAITH IN SYSTEM
December 15, 1996
Libel laws and copyright restrictions have a chilling effect on writers.
They cause us to fear punishment for inventing and then publishing falsehoods about real people, no matter how interesting the lies or how beneficial such stories could prove for our careers. And when we suffer writer's block, common strictures prevent us from stealing the words of others and passing them off as our own.
In the same way, the recent indictment of a Chicago woman on charges that she beat her 4-year-old son to death has a chilling effect on parents who believe in corporal punishment; the FBI's indictment this year of more than 100 alleged traffickers in child pornography has a chilling effect on those who feel a sexual attraction for the young; the indictment earlier this month of a Darien motorist on charges that she was on drugs when she struck and killed two people has a chilling effect on drivers who enjoy intoxicants; and so on.
Honest writers, careful parents, sexually well-adapted people and sober drivers don't mind these chilling effects. In fact they applaud them, even demand them. It's almost the definition of a good law that its enforcement has a chilling effect upon those who would break it and an encouraging effect upon those who would obey it.
Few should know that better than a professional prosecutor who is, after all, prominent in the behavioral refrigeration business. This is why last week's bleatings from DuPage County State's Atty. Joe Birkett about the indictment of three former county prosecutors for obstruction of justice and official misconduct are so dismaying.
Birkett has complained of the "chilling effect" on his office and on prosecutors everywhere of the lengthy indictment against the former assistant state's attorneys along with four sheriff's officers for their conduct in the prosecution of Rolando Cruz for the 1983 murder of 10-year-old Jeanine Nicarico of Naperville.
He called the indictments "an attack on prosecutors," said they "must be devastating for every police officer and prosecutor in this country" and expressed the fear "that the interest of the public which we serve may be adversely affected."
In an impromptu interview following the news conference Thursday in which special prosecutor and former First Assistant Cook County State's Atty. William Kunkle announced the charges, Birkett told me and other reporters gathered around that the indictments will "undermine respect, confidence and faith in the (justice) system."
Among those who've paid no attention to current events in their entire lives, yes, perhaps these allegations will shake a belief in the infallibility of government authority. The rest of us, however, are aware that, like any human institution no matter how noble its purpose, the justice system does not always do right because people do not always do right.
Generally, our confidence in any institution is based not so much on a belief that it will never screw up, but on a belief that when it does screw up, it will recognize the problem, root it out, make things right and try to correct course.
We don't expect, to use the instant example, that every prosecutor in America always dispassionately seeks truth and justice. Rarely, but sometimes, they get carried away, cut ethical corners and get trapped in a thickening web of lies, as the indictment alleges happened in DuPage. The public should and probably will feel braced that the system has taken allegations of such misconduct seriously instead of hiding them behind a screen of immunity.
Honest prosecutors--this includes the majority in DuPage and elsewhere--are not under attack by any stretch. The DuPage indictment does not deal in alleged mistakes made in good faith, to which we are all susceptible, but in alleged lying, concealing of evidence and conspiracy. It is no idle second guess of moments of perhaps dubious judgment, but an accusation of grave and persistent misconduct.
The only law enforcement officials (aside from the accused) who should feel devastated by last week's indictments are those now given to or tempted by such practices. And that's a good thing--very much in "the interest of the public" that Birkett says he hopes to serve.
Courts will eventually rule on the still very much open question of the quality of this particular indictment regarding these particular defendants.
But we already know that the basic idea behind it--that those charged with upholding the law must follow it as well--is not chilling but cool, like a cleansing breeze.
June 1, 1998 --The $67 million lie that has been fed to DuPage County taxpayers and elected officials appeared yet again recently in the wording of County Board resolution CB-0058A-98:
"There are currently civil cases pending against (seven DuPage sheriff's deputies and former prosecutors) in which demands have been made against the county for over $100 million," says the fourth paragraph of the 14-paragraph resolution, which asked the board to approve the advance payment of robust legal fees to criminal defense attorneys for the so-called DuPage 7.
The gist of the rest of the resolution is that if any among the DuPage 7 lose in the upcoming criminal trial on charges they conspired to frame Rolando Cruz for the 1983 murder of Jeanine Nicarico of Naperville, it will increase the risk that the county will lose a related federal civil rights suit and be on the hook for . . . (cue the scary music) . . . more than $100 million!!!
Therefore, paying the defense fees is "in the interest of the taxpayers of DuPage County," said the resolution, submitted by board member William Maio and passed April 28 by an 11-9 vote.
The $100 million-plus figure is phony--a phantom figure persistently repeated by the cozy clique working to protect those directly and indirectly responsible for an appalling miscarriage of justice. They have used it persistently--in court, in interviews and in formal documents--to frighten the citizens and decision-makers of DuPage into paying for their effort.
But as the board members and the public only began to learn last week, the plaintiffs have made just one "demand" so far in the civil case: $2 million for Steven Buckley, who was tried but never convicted in the crime; $6.5 million for Cruz, who spent 10 years on Death Row but was ultimately acquitted; and $24.5 million for Alex Hernandez, imprisoned for more than 11 years before the case against him was dropped.
This opening settlement offer, tendered in late February of 1997 to a special assistant state's attorney who reports directly to DuPage State's Atty. Joe Birkett, adds up to $33 million--approximately the limit of the county's indemnity insurance in the interpretation of the plaintiff's attorneys.
The larger, misleading figure comes from a sword-rattling letter written to DuPage on June 26, 1996, by former Illinois State Police director Jeremy Margolis, Hernandez' civil attorney.
Margolis, groping for le mot juste, labeled the actions of DuPage officials in the case "evil . . . sordid . . . unspeakable . . . pernicious . . . (and) disgusting," and thundered, "it is our belief that verdicts . . . will be well into the 9-figure range."
The $33 million proposal was the more realistic opening gambit, but Birkett made no counter-offer. He was already well into an aggressive crusade to have the county pay for a top-drawer team of private defense lawyers, including Birkett's former campaign manager.
The legal arguments in favor of such payment were weak, but the "over $100 million" argument proved strong.
County Board Chairman Gayle Franzen, who opposed paying the fees up front and resigned April 1, said neither Birkett nor his special assistant ever told the board of the vastly smaller settlement offer, even though the board customarily approves significant settlements. Birkett said he informed Franzen, face-to-face, at least twice, and that a 3-page auditor's letter in April 1997 copied to Franzen also spelled out the offer.
But either way, Birkett, who says he never personally used the inflated figure, and his counsel did and said nothing to be sure the trustees frame the long-running debate in realistic terms.
Birkett blames the media for perpetuating the $67 million lie and says there are still too many unanswered questions to talk yet about settling the case:
Will the balky insurance companies, now in court with the county, really pay up?
Will new evidence surface to exonerate the alleged wrongdoers?
What's troubling, though, is that he made this decision on his own, without consulting or fully informing the elected representatives of the taxpayers whose money will now be spent generously in still another attempt to rehabilitate the disreputable events of long ago. He's also gambling with that money: Who knows what damages a jury might award?
EVERY NEW TWIST TO NICARICO SAGA BRINGS MORE SHAME
June 2, 1998
In the third trial of Rolando Cruz in late 1995, Cruz's attorneys hammered away at problematic inconsistencies in the testimony of four prosecution witnesses. Who told what to whom when about Cruz's alleged "vision statement," a purported confession at the heart of the state's case against him for the 1983 murder of Jeanine Nicarico?
They could not agree. And even Monday's surprise revelation--that five grand jurors from the case now say they remember Cruz alluding to the confession in off-the-record conversations in 1983--fails to reconcile their accounts.
After Cruz was acquitted, the four witnesses were indicted as part of the so-called DuPage 7--a group of current and former law enforcement officials now facing criminal charges of perjury, conspiracy, official misconduct and obstruction of justice related to the prosecution.
From very early on--shortly after the DuPage 7 indictments were announced in late 1996--current DuPage State's Atty. Joe Birkett has been very active in the legal and political battle to have county taxpayers pick up the tab for a team of top, private defense lawyers for the indicted men.
He repeatedly justified his crusade by saying it was within the scope of his formal responsibilities, though his interests appeared conflicted: Among the 7 were former colleagues in the prosecutor's office. Among their lawyers were friends and political contributors, including Birkett's former campaign manager.
And among those officials who were not indicted in the case but were accused by a witness of suborning perjury against Cruz was Joe Birkett himself.
Birkett emphatically denied the accusation when it arose in 1995 and nothing has come of it. But though propriety demanded he step aside and keep quiet, he fought on, speaking out and lobbying county board members with calls to their homes.
Yet he remained silent when the $67 million lie became the most compelling argument for the county to pay the fees. That lie--that plaintiff's lawyers in a related civil case were demanding "over $100 million" when the actual opening settlement offer in early 1997 was $33 million, an amount that may be covered by county insurance--appeared until recently in resolutions, published statements of board members and court arguments.
It ultimately helped persuade a majority of board members to pay the fees as a safeguard against a huge civil judgment. Yet the former board chairman, Gayle Franzen, speculates that had they known the actual offer, they might have favored a negotiated settlement as a prudent and just resolution to a bad situation.
A settlement, however, would have cost Birkett and others advocating for $97,000 a year per-lawyer fee payments their strongest argument, the subtext of which always carried a whiff of blackmail: Last September, Birkett's former campaign manager, Terrence Ekl, wrote a letter on behalf of the DuPage 7 attorneys assuring officials that if the fees are paid up-front, their clients "will do no act which adversely affects the defense of (the civil) case . . .(and) will not testify on behalf of the prosecution (in the criminal case)."
Pay up, in other words, and no one breaks ranks to explain those pesky inconsistencies.
And had the civil suit gone away, it would have removed Birkett's justification for spending county money to hire a former prosecutor and an investigator to go into the field yet again to try to roust witnesses--such as the former grand jurors who surfaced Monday--to offer new testimony to incriminate Cruz or his exonerated co-defendants.
Ultimately, the whole fee argument, including the $67 million lie, is not about justice or money. It's about another bid for vindication. If DuPage authorities can keep the 7 united and spark a few more 15-year-old memories, they can tie the score in the courts and shrug it all off as a big misunderstanding.
It was 13 years ago Tuesday that Brian Dugan, the man whose DNA supports his confession that he alone murdered Jeanine, first came to the attention of authorities when he kidnapped and killed a 7-year-old girl. Ever since, DuPage officials have passed on every opportunity to admit they were wrong about Cruz and his co-defendants, and in their efforts to redeem the reputations of a few lawmen they have only brought more shame upon a widening circle while spending millions.
Here we go again.
September 24, 2002
Birkett is still dodging issues in Nicarico case
Monday marked the seventh anniversary of the day local papers carried the front-page news that the latest round of advanced DNA tests had all but solved the Jeanine Nicarico murder case.
The results showed that Brian Dugan--the Aurora man who had earlier admitted abducting, raping and bludgeoning to death the 10-year-old Naperville-area girl in 1983--was, in fact, in the fraction of a percent of the adult white male population who could have been the source of semen found in the victim.
But it was not a happy anniversary for DuPage County State's Atty. Joe Birkett.
Birkett, the Republican candidate for attorney general in November's election, was grim and defensive at a midafternoon news conference hastily called to respond to a demand earlier in the day from his Democratic opponent,
Lisa Madigan, that he "come clean" about his role in the wrongful prosecution of another man, Rolando Cruz, for the same crime. "As her platform today, [Madigan] has chosen the grave of a 10-year-old girl," Birkett said to a media gathering in a conference room in the South Loop. She "is using a horrible tragedy for political gain."
He added, "My opponent has no idea what a prosecution looks like."
Of course, when it comes to Dugan, neither does Birkett. For his entire six-year tenure as state's attorney, his office has let the Nicarico case languish officially open and unsolved. After Cruz was acquitted and released from Death Row in late 1995 and charges were dropped against his former co-defendant, Alejandro Hernandez, the logical move was against Dugan, whose story starkly contradicted the version of events that DuPage authorities had been pushing for more than a decade.
But Birkett did not reopen plea negotiations with Dugan, who had offered to plead guilty in exchange for a life sentence. He has not indicted him, and there are no reports that he has even tried. His office has not even requested to talk to Dugan about the case, according to Dugan's attorney Tom McCullough.
Instead, Birkett has claimed all along to be waiting on sleuths who are still hard at work gathering evidence against Dugan, whose detailed admissions can't be used against him because they were part of plea negotiations. "The investigation is very aggressive and has been since Day 1," he said Monday. He said one full-time investigator, one part-time investigator and a part-time
special assistant state's attorney are on the case.
And since the alleged investigation is always ongoing, Birkett always says that he can't comment on it or what sort of dead end it will take for him to give up on getting a death sentence and accept Dugan's guilty plea.
He's in no hurry. Dugan is already serving life without parole for a similar murder and isn't going anywhere. And as long as the case remains technically open, Birkett remains able to offer vague insinuations, as he did again Monday, that he doesn't buy the story that Dugan acted alone and Cruz and his former co-defendants weren't involved.
He wouldn't offer a personal opinion on Cruz's innocence when asked about it at Monday's news conference, nor would he reveal the substance of any conversations he had with his supervisors and colleagues when he was the lead prosecutor in the case in late 1994 and early 1995. "That's confidential work product," he explained.
It's also another dodge. Madigan may have been standing on a little girl's grave Monday, but Birkett has been hiding behind her headstone for years.
His doubtful claim that his office is still looking for evidence in the name of justice looks more and more every year like an attempt to postpone the day when DuPage County finally accepts Dugan's story until nobody much cares anymore.
That looks like it'll be awhile. Seven years to the day after the headlines told us it was all but over, five TV cameras and more than a dozen reporters and photographers showed up for two news conferences about the Nicarico case.
Seven years. My handy chart tells me that's the wool anniversary.
Maybe that's why Monday left me still itching to hear the truth.
October 1, 2002
Nicaricos up the ante for Birkett, Ryan
In a letter to the editor published in Sunday's Tribune, Tom and Pat Nicariconadded their voices to those who've been calling on former Golden Glovesnchampions Jim Ryan and Joe Birkett to come out of the corner and fight.
The Nicaricos are the parents of 10-year-old Jeanine, who was abducted from the family's home near Naperville in 1983 and brutally slain. Ryan, the Illinois attorney general and Republican candidate for governor, was the state's attorney in DuPage County during most of the controversial prosecutions related to that murder. Birkett, one of Ryan's successors and now the Republican candidate for attorney general, briefly led the prosecution team against Rolando Cruz, one of the men sent to Death Row for Jeanine's murder but later acquitted.
Neither Ryan nor Birkett "have ever expressed any doubt to us about the guilt of the men whom they prosecuted for the murder of our daughter," the parents wrote. "We believe that as candidates for statewide office, they are not entitled to silently allow Rolando Cruz's petition for a pardon to proceed without rebutting it. They owe the citizens of Illinois, and us, a detailed
response to that petition."
In other words, no more of the cowering "mistakes were made," "my personal feelings are not relevant," remarks such as those Birkett made about the case at a news conference last week and before the Tribune editorial board Monday.
No more of the "I did what I thought was right at the time" rope-a-dope from Ryan, who has consistently refused to engage the critical question of what he now thinks is right and what, if anything, went wrong on his watch and why.
Those of us who have no doubts about the innocence of the men that DuPage County prosecuted for Jeanine's murder have been unsuccessfully making this demand of Ryan and Birkett for years. That demand will be harder for the men to ignore now that it's being echoed by longtime, high-profile supporters of the prosecution.
The Nicaricos expressed anger at Birkett two years ago when he led the effort to have the county pay Cruz and two other former defendants a $3.5 million civil settlement even while maintaining his belief that the men "may have been involved in the crime."
"Wait a minute," the Nicaricos responded in a statement read to the county board. "What is right and what is wrong? ... Let the courts continue to do their job; let us continue to seek the truth."
But the family has not demanded a public accounting until now.
Do Ryan and Birkett still believe that the first three defendants were part of an elaborate conspiracy with Brian Dugan, the man whom DNA evidence has since incriminated in the crime? If so, the Nicaricos say, Ryan and Birkett must make that case. Otherwise, Gov. George Ryan will grant Cruz's clemency petition based on actual innocence and clear the way for him to receive compensation from the state.
And Birkett, who has said he won't oppose the clemency petition, ought to explain why fiscal responsibility so trumped justice in 2000 that he helped a trio of men he believed to be child killers receive millions of dollars.
If Ryan and Birkett are disregarding their beliefs, their responsibility to truth and the interests of the family that has suffered unimaginably for nearly 20 years in an attempt to stand in a politically acceptable neutral corner, that would be grotesque.
But if their beliefs have changed, then their failure to acknowledge that in word and deed over recent years has also been grotesque.
Do Ryan and Birkett now believe that Cruz and his former co-defendants had absolutely nothing to do with Jeanine's murder? Have they nevertheless been shrugging, equivocating and otherwise stalling as they purr soothing reassurances into the Nicaricos' ears?
These questions are vital today because Ryan and Birkett are asking voters to reward their integrity, judgment, honor and performance with a promotion to higher office. Both have overseen thousands of prosecutions, but most of them tomato cans, as they say in boxing--easy fights, simple victories. This one provided a real test.
Now we're headed into what looks like the final round, the last period in which this case will be relevant. It waits and waits for them in the middle of the ring.
And this time it's the Nicaricos who have sounded the bell.
November 16, 2002
Prosecutors won't accept crow on menu
Of all the flights of eloquence both crafty and heartfelt heard by the Illinois Prisoner Review Board Friday, the one that best summed up the day was an unscripted outburst from a plain-spoken civilian witness.
It came from Steve Pecoraro, a one-time witness against former Death Row inmate Rolando Cruz, who is petitioning the state for a pardon based on actual innocence. Pecoraro, testifying on behalf of Cruz this time, told the board that prosecutors encouraged him to embellish innocuous remarks by Cruz he'd heard when he was incarcerated with Cruz in DuPage County Jail in early 1985.
Pecoraro is a bit player in the ugly pratfall of justice that saw Cruz and another man convicted of the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico sent to Death Row, then exonerated. He was tightly wound as he told his story, and as he finished he offered a loud message for the prosecution:
"Eat a little crow!" he said, his voice nearly breaking. "Can't you own up to your mistakes?"
The answer, as lawyers representing DuPage County and the Nicarico family proceeded to demonstrate in response, was no. They won't eat any crow and they won't own up to their mistakes.
It was the same answer revealed in the prosecution's response to the other case on the docket Friday, the appeal by former condemned prisoner Gary Gauger for a pardon based on innocence.
Gauger was convicted in McHenry County of the 1993 slaying of his parents.
That conviction was based on allegedly coerced statements to police that everyone now acknowledges were false. Authorities later freed Gauger and convicted two members of a Wisconsin motorcycle gang for the crime.
So did McHenry County dine on a dish of corvus brachyrhynchos? Own up to the nightmarish fact that they were willing to put a man to death based on what they now know to be a lie?
No. Instead their attorney James Sotos, who also represented DuPage before the Prisoner Review Board, argued that the lies were possibly part of Gauger's attempt to cover up his role in a murder for hire. He based this supposition on a blizzard of couldas, mightas and shouldas supported by the handwritten notes of a man who once shared a jail cell with one of the motorcycle gang members.
Similarly, Sotos rehashed for DuPage the familiar and desperate conjecture and innuendo that sustains the last of the true believers in Cruz's guilt. All of it now focuses on establishing the possibility that Cruz helped Brian Dugan commit the dreadful crime.
The hearing was held on the same morning the story broke that a recent round of DNA testing by DuPage County removed the remaining tiny statistical doubt that Dugan raped the victim.
DuPage State's Atty. Joseph Birkett knew about these conclusive DNA test results during his recent failed campaign for attorney general, but he did not disclose them even though the Nicarico case and his failure to bring charges against Dugan was an issue in the race and former DuPage State's Atty. Jim Ryan's failure to recognize Dugan's guilt was an issue in the governor's race.
This removed my remaining tiny doubt that I might have been wrong about Birkett. Sotos said DuPage County now takes no official position on Cruz's petition.
You'd hardly know it. In the name of challenging "misrepresentations" in the petition, he spent an hour insinuating that DuPage officials were on the right track all along and that Cruz participated in the crime.
The tenacity of both counties offered an exquisite illustration of a theme defense attorneys have been attempting to develop this fall in the commutation hearings for nearly all inmates on Death Row.
Not that mistakes happen in the justice system. That's obvious. People aren't perfect.
But when mistakes happen, those who make them seem chronically unable to own up. They fight and scratch and quibble and offer new theories to the bitter end rather than admit they were wrong and get about the business of finding out how it happened and making sure it doesn't happen again.
Gov. George Ryan is examining scores of requests to commute death sentences in the final days of his term, and Friday's no-crow show left him with this: If prosecutors won't admit it when they're wrong, how can we believe them when they swear they're right?
June 24, 2003
Ruling to test Madigan's talk of truth, justice
"Rolando Cruz spent seven years on Death Row despite overwhelming evidence of his innocence. But Joe Birkett? He continued to prosecute Cruz using coerced testimony." Lisa Madigan campaign ad, Oct. 8.
"Joe Birkett is asking you to judge his integrity and his leadership on the basis of his past record. It's the record of a prosecutor who has been unencumbered by conscience." Madigan, referring to the Cruz case during a candidate forum, Oct. 1.
"I can promise that as attorney general, I will never cover up the truth and stand in the way of justice." Madigan campaign news release, Sept. 23.
Thanks in part to these sorts of relentless attacks on her opponent's integrity, Democrat Lisa Madigan won November's attorney general's race against Republican DuPage County State's Atty. Joe Birkett.
Now, U.S. District Judge Michael McCuskey has thrown a ruling at Madigan that will put her lofty campaign rhetoric to the test.
Last week, in a sharply worded opinion, McCuskey vacated the conviction of Gordon "Randy" Steidl, who is serving a life sentence for the July 1986 murder of a newlywed couple in downstate Paris.
McCuskey belittled an Illinois Appellate Court ruling upholding the conviction and ordered the state to retry or release Steidl within 120 days. He concluded, "Acquittal was reasonably probable if the jury had heard all of the evidence" that Steidl's defense attorney failed to present at the trials in Edgar County in which he and co-defendant Herbert Whitlock were convicted.
That evidence strongly supports the contention of advocates for Steidl and Whitlock that the two purported eyewitnesses to the crime--a notorious alcoholic and an admitted drug addict whose accounts of seeing Steidl and Whitlock butcher Dyke and Karen Rhoads in their home in the middle of the night are the linchpin of the state's case--simply made up their stories several months after the fact when the police investigation stalled.
The alcoholic, Darrell Herrington, admitted to being stumbling drunk the night of the murders and recanted his story once, but later unrecanted. The drug addict, Debra Rienbolt, said she'd been drinking, smoking pot and popping codeine pills that night and has recanted and unrecanted her story twice.
The "I was lying when I said I was lying" problem notwithstanding, these witness accounts are dubious. Rienbolt was clocked in at work as a nurse's aide in the hours before the murders when she claimed to have seen Steidl and Whitlock in various bars; the knife she claimed was the murder weapon didn't match the wounds on the victims; and the broken lamp she said she'd seen in the victims' bedroom was actually broken later by firefighters putting out a blaze that the killer or killers had set to cover their tracks.
Herrington's account, meanwhile, doesn't square with Rienbolt's or with Steidl's alibi witnesses.
The shabbiness of this evidence rivals the shabbiness of the evidence that DuPage County presented to convict three men, including Rolando Cruz, for the 1983 rape and murder of 10-year-old Jeanine Nicarico of Naperville.
The three have since been exonerated. And while Birkett has voiced support for the original prosecutors and failed to bring charges against the man whom new DNA testing links to the crime, he was not in charge during any of the trials and he played a minor role as an assistant in only one of them. Yet during the campaign, Madigan repeatedly thundered at him for not having done more to set right the scales of justice.
Now, Madigan is in charge and stands poised over those same scales. When her office gets the Steidl case back from the state appellate prosecutor's office next week, she will have to decide whether to appeal McCuskey's ruling or to accept the ruling and send the case back to Edgar County, where prosecutors are almost sure to drop it.
Will she recognize overwhelming evidence of innocence when she sees it? Will she be encumbered by conscience as she reads the shocking record? Will she fulfill her promise never to act to cover up the truth? Or was that just cheap campaign talk?
Birkett's zeal is questionable in Nicarico case
July 26, 2005
It's time for DuPage County to declare victory in the Nicarico case and end this 22-year nightmare.
Indications are that, any day, we'll see a grand jury indictment of Brian Dugan, 48, in the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville--a crime to which he has offered to plead guilty in exchange for a life term without parole.
He's already serving two such sentences at Pontiac Correctional Center for other sex killings, so his offer isn't particularly impressive. Still, DuPage State's Atty. Joseph Birkett should take it and announce that justice has, at last, been done.
Instead, he appears determined to lead a costly and possibly futile effort to take Dugan's life before the Grim Reaper beats him to it. After the indictment would almost certainly come many, many months of legal ground-pawing as attorneys for Dugan file motions and continuances while making their way through the estimated 175,000 pages of documentary evidence that it already has taken DuPage officials nearly three years to process. After that will come a trial and, assuming Dugan is convicted and sentenced to death, numerous appeals.
The entire process is luxuriously expensive. A 1993 Duke University study found it costs $2.2 million more to execute a prisoner than it does to lock him up for life; a 1992 calculation by the Dallas Morning News found that Texas spends an average of $2.3 million per execution, three times the cost of keeping a prisoner in maximum security for 40 years.
And a 2003 Kansas Department of Corrections audit found that median death penalty cases cost $1.26 million compared with $740,000 for non-death penalty cases.
DuPage County already has spent untold millions since 1983 investigating, re-investigating, trying and re-trying and re-re-trying other figures in this case, which has already seen six criminal trials and two civil actions.
Since November 2002, when Birkett's office announced that modern DNA testing had established with "scientific certainty" that Dugan raped Jeanine, the county has devoted considerable (though still somewhat mysterious) resources to the preparation of an air-tight case against Dugan.
I won't argue that Dugan deserves any mercy. The indictment will allege that he discovered Jeanine home sick from school while looking to commit a weekday burglary, kicked in the door, grabbed her and took her to a remote location where he sexually assaulted and bludgeoned her. No corner of hell will be hot enough for him.
But Birkett is throwing good money after bad. Before the January 2000 moratorium on the death penalty in Illinois, the shortest time between conviction and execution for the 10 convicts who pursued all their appeals was 13 years; the average was 15 years.
So even if a future governor lifts the moratorium, not a sure thing, Dugan will likely be in his mid- to late-60s before he faces a trip to the gallows. If he's still alive.
National Center for Health Statistics tables show that average life expectancy for white men born in the mid-'50s is roughly 68; life expectancy for prisoners is 64, according to a ballpark estimate by the Texas Criminal Justice Policy Council.
For no practical purpose other than the chance to shave a few pathetic years off an evil man's life, Birkett appears willing to spend an untold fortune in taxpayer dollars and preparing for a sensational trial that's bound to rip the scab off a civic wound that a plea bargain would begin to heal.
This objection is not about the death penalty. It's about an excess of symbolism and a lack of substance. It's about directing scarce resources where they can make a difference instead of where they can make a point. I pressed him on this issue Monday during a meeting he had with Tribune editors, reporters and members of the editorial board. He asked that all his remarks during that meeting be kept secret until Dugan is indicted, and of course I'll respect that request.
But in the hallway afterward I asked him for an on-the-record response to the suggestion that this zeal for capital justice is wasteful and futile.
"I respectfully disagree with you. We're pursuing this case for the right reasons," was all he would say.
Fair enough. Respectful disagreements all around.
September 28, 2000 --'It is morally repugnant to give money to someone we believe may have beeninvolved in this crime."--DuPage County State's Atty. Joe Birkett on the $3.5million settlement he and the County Board have agreed to have paid to three former defendants in the Jeanine Nicarico murder case.
Memo to Birkett: Spare me your phony hand-wringing and cheap innuendo. You got a great deal.
County prosecutors and police blew this case big time, then cheated brazenly in an effort to cover their tracks and keep innocent men behind bars for more than 10 years--10 years during which they knew, as you know beyond any doubt, who really killed that little girl.
And you got lucky. After it all fell apart in late 1995 and both Rolando Cruz and Alex Hernandez were freed, seven county law-enforcement officials went to trial on charges they criminally conspired to frame Cruz. The scope of the trial was limited to only a fraction of the appalling stunts your folks attempted, and the county paid for an all-star defense team.
Cruz was exposed as an irremediable liar on the stand, and the special prosecutor, a noted death-penalty advocate and former attorney for a Chicago police commander fired for torturing suspects, put on a restrained case capped by a meandering, nearly passionless closing argument.
You were then able to spin the acquittal by the hometown jury as a total vindication for DuPage and a virtual reindictment of the original murder suspects.
But the civil case was going to be different, and you knew it. A jury would have heard the whole saga, not just the fragments of it presented at the DuPage 7 trial: the dastardly manipulation of shoeprint evidence; the falsified police report of a witness interview that the detective didn't know was being recorded by a surveillance monitor; the attempt first to ignore and later to discredit the detailed, wholly persuasive 1985 confession of convicted child killer Brian Dugan that he alone killed Jeanine; and dozens more irregularities that weren't part of last year's trial.
The police and prosecutors would have had to testify. They exercised their right not to in the criminal trial, but most did tell their story earlier to a grand jury. The grand jury indicted them.
The civil case would have been heard in Chicago, not Wheaton, and your opponents at the bar would have been a team of committed advocates, including renowned civil rights attorneys Larry Marshall (see him on "The Oprah Winfrey Show" at 9 a.m. Thursday) and Flint Taylor, as well as Cruz's fiery former defense attorney, Tom Breen.
You might have won. A jury might have decided Cruz and Hernandez deserved everything they got for the despicable act of lying to detectives seeking the killer of a little girl. Or jurors might have bought the preposterous theory that Cruz, Hernandez and the third plaintiff, the never-convicted Stephen Buckley, helped Dugan--henceforth known as the "take these three people in the basement and shoot them" position, after County Board member Michael McMahon's outburst Tuesday. (You picked "inappropriate" out of all the available adjectives to describe McMahon's suggestion.)
But you probably would have lost. Railroading two guys onto Death Row because they were ignorant teenage punks, then leaving them there when it became clear they were innocent, was way over the top.
Just be glad the maddeningly slow pace of the civil-suit game motivates everyone, particularly low-income plaintiffs like these, to settle and get on with their lives. It allows you to pretend that, suddenly, after you and your predecessors piddled away millions of tax dollars over the years ducking the truth that surfaced in 1985, a burst of fiscal responsibility forced you into agreeing to a "morally repugnant" settlement.
Please. Friday was the fifth anniversary of the day the world learned that newly sophisticated DNA testing corroborated to near certainty Dugan's long-standing admission to having raped Jeanine just before her death. It has been more than 1,800 days now with no action from your office on this inconvenient but powerful fact, just noxious evasions and smokescreen blather about how painful it is to sell out.
"I feel guilty for making this decision," you said.
Oh, pipe down. Pony up. Bring Dugan to justice. Put an end to this sorry story.
DuPage sticks to stubbornness in Nicarico case
November 30, 2005
Even more than 20 years after the embarrassing, sickening truth must have become obvious to them, DuPage County authorities still won't say it aloud:
Brian Dugan and Brian Dugan alone abducted, raped and murdered 10-year-old Jeanine Nicarico of Naperville back in 1983, just as he has said.
State's Atty. Joe Birkett repeatedly refused Tuesday afternoon to offer that simple declaration during the news conference in Wheaton in which he announced that a grand jury had indicted Dugan for the crime.
Instead he alluded vaguely to "others [who] may be legally responsible" for Jeanine's murder, declined to offer a theory of the crime and defended previous controversial investigations in the case as having been "done in good faith by honest and ethical professionals."
It was yet another display of the stubbornness that has infected this case since at least late June of 1985. That was when Dugan, then 28 and living in East Aurora, was arrested for an eerily similar crime in which 7-year-old Melissa Ackerman of Somanauk was abducted, raped and murdered.
Even though DuPage had already "solved" the Nicarico murder by convicting a couple of street punks from Aurora--Rolando Cruz and Alex Hernandez--records show that a sheriff's detective began exploring the idea that Dugan was the killer.
He discovered that Dugan, a convicted burglar, had been paroled from prisonsix months before the Nicarico murder and had skipped work the day of the crime.
He also learned Dugan had owned a car similar to the car witnesses saw a lone white male driving near where the body was found.
The detective then went to the LaSalle County Jail and spoke with Dugan.
Dugan said he didn't have an alibi for the day Jeanine was abducted and wouldn't speak further without an attorney present.
The circumstances suggested that a grave error may have occurred--that, somehow, two innocent men were on Death Row for a crime they had nothing to do with.
Yet in an apparent effort to avoid the embarrassment of having to admit they'd screwed up, DuPage did not follow up. It was as though they were holding their collective breaths and hoping no one else made the connection and started asking hard questions.
That didn't work. Five months later, when Dugan was preparing to confess to the Ackerman murder and other crimes for which he is now spending his life in prison, he offered to confess to being the sole perpetrator of the Nicarico murder. A state police investigation concluded that his admissions, offered in hypothetical terms in the context of a plea bargain, were extremely credible.
Instead of rejoicing, DuPage nitpicked Dugan's statement and began a long, expensive, obtuse and morally objectionable effort to discredit him and defend the original prosecution.
When the Illinois Supreme Court in 1988 ordered new trials for Hernandez and Cruz, DuPage fought to keep evidence about Dugan from the jury. And when new DNA testing strongly implicated Dugan, DuPage began championing an outlandish new theory that Cruz and Hernandez had helped Dugan commit the crime.
At the same time, DuPage continued to refuse to accept Dugan's offer to plead guilty in exchange for yet another life sentence.
Cruz was acquitted at his third trial 10 years ago this month, and DuPage dropped charges against Hernandez shortly thereafter.
It was time--well past time, actually--for DuPage to accept Dugan's plea, apologize to those wrongly accused and convicted, and declare justice done. But no. In an effort to put Dugan on Death Row and perhaps at the same time to vindicate the lawmen involved since day one, we saw another 10 years of investigation that culminated in Tuesday's indictment.
Birkett told reporters that he "couldn't stomach" the idea of not pursuing the death penalty for Dugan, costly though the effort will be.
But even with a settled stomach, he didn't have the guts to declare or even to deny the embarrassing, sickening truth:
Brian Dugan and Brian Dugan alone abducted, raped and murdered 10-year-old Jeanine Nicarico of Naperville back in 1983.
Call for death penalty is oddly out of place
February 17, 2008 -
I realize that Du Page County State's Atty. Joe Birkett and many other prosecutors across Illinois are very itchy to have the state resume executions.
The last one was nearly 9 years ago, just before then-Gov. George Ryan unilaterally declared a moratorium on the practice.
But it took a lot of nerve for Birkett to hold a news conference last week at the DuPage County sheriff's office calling on Gov. Rod Blagojevich to lift the moratorium.
Why? Because many of us consider the DuPage County sheriff's office to be the birthplace of the movement that gave rise to moratorium in the first place: It was there that lawmen botched the investigation into the murder of 10-year-old Jeanine Nicarico.
Their blundering led to two innocent men being sent to Death Row and galvanized the legal and journalistic communities to uncover the raft of other injustices that prompted Ryan to declare the capital system "broken."
DuPage County State's Attorney's Office
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