Politics                                                                                   

Justice bereft of common sense? By CHARLES N. WHEELER III

The image is familiar to all: a robed, blindfolded woman holding a set of scales, underscoring a fundamental precept of our legal system: Justice is blind. Here in Illinois, one sometimes can't help but wonder whether justice is bereft of common sense as well. The question is certainly inescapable when one considers the fate of Rolando Cruz, a 29-year-old Aurora man now on Death Row at Menard Correctional Center.

Last December, a narrowly divided Illinois Supreme Court held Cruz must be executed for the 1983 kidnap, rape and murder of 10-year-old Jeanine Nicarico, even though another man, Brian Dugan, claims he alone committed the crimes. In a 4-3 decision, the court majority labeled Dugan's statements untrustworthy and inadmissible. Cruz' guilt "has been established beyond a reasonable doubt," wrote Justice James D. Heiple for the majority. So the errors occurring at trial did not deprive him of a fair trial. To the layperson unschooled in legal arcana, the mere fact that someone has confessed to a crime that someone else says he didn't commit might make it hard to conclude the second guy is guilty beyond a reasonable doubt.

Mind you, Dugan is no off-the-street whacko, looking for free publicity or seeking to purge some inner demon. No, he's a convicted serial killer, a man who kidnapped, raped and murdered at least one other little girl, 7-year-old Melissa Ackerman. Moreover, in a detailed confession, Dugan provided specific information about the crimes, some of which had not been publicized and much of which was corroborated by physical evidence or other testimony. Witnesses placed him in Naperville, Jeanine's hometown, the day of her abduction, and others described a car matching Dugan's, even to a missing hubcap, seen that same day near where the child's body was found.

Cruz, meanwhile, steadfastly has maintained his innocence. No physical evidence links him to the crimes; instead, much of the prosecution's case rests on a statement Cruz made to investigators describing a "vision" he had about the killing, a statement that conflicted with other information he provided and contained inaccurate details.

"Indeed, [Cruz's] statements regarding the case are less detailed and specific than the statements made by Brian Dugan, who, unlike the defendant, provided law enforcement authorities with a confession of guilt for the offenses," wrote Chief Justice Benjamin K. Miller in his dissent, the only time, court observers say, he's dissented in imposing the death penalty.

Prosecutors also relied on testimony from another Death Row inmate, Robert Turner, who said Cruz recounted details of the crime to him. But Turner admitted reading about the case before the trial. Moreover, other inmates testified that Turner told them he was going to set up Cruz, hoping to receive favorable treatment when his own case comes up for appeal.

Now, the case is once again before the high court after Cruz asked for a rehearing, arguing the trial errors were not harmless. Some deprived the jury of information that conclusively established Dugan's sole guilt, he contended, while others led jurors to believe that Cruz and Dugan could have acted together. In a move legal experts said was rare, if not unprecedented, Cruz' request was endorsed in "friend of the court" briefs filed by an impressive array of notable figures, including religious leaders like Cardinal Joseph Bernardin, law enforcement professionals and legal scholars.

Typical was the amicus brief filed by 15 former federal or state prosecutors including former Atty. Gen. Tyrone C. Fahner and former Illinois State Police director Jeremy D. Margolis. "A death sentence ordered in these circumstances — with three justices . . . expressing the strong view that the defendant was not fairly proved guilty — can only erode the moral authority of the law," they wrote. "The law's ability to command the broad respect of the community is severely pressed when this court orders a defend-

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ant's life taken while three members of the court express the view that the defendant was not fairly proved guilty of the crime for which this ultimate penalty has been imposed."

In another striking brief, death penalty scholars Hugo A. Bedau and Michael L. Radelet said the case "contains an unacceptably high degree of risk" that an innocent person will be executed. Of some 2,700 inmates on Death Rows across the nation, they said, "[we] know of no other whose case presents so much exculpatory evidence and so many reasonable doubts as found in the Cruz case."

The amici are not alone in questioning the decision. Many investigators, law enforcement officials and lawyers believe Dugan alone is guilty. Among them is Margolis, who wrote in a 1991 letter to a DuPage County judge that he shared "with a large number of Illinois State Police officers [both line and command] the belief that Brian Dugan murdered Jeanine Nicarico and that he did so acting alone." Others include the former Naperville police chief who headed the suburb's investigation of the murder, one of the principal DuPage County sheriffs deputies assigned to the case and the Kane County state's attorney.

Moreover, last March Mary Brigid Kenney, an assistant attorney general assigned to handle the appeal for Atty. Gen. Roland W. Burris, resigned because her boss would not tell the justices Cruz might be innocent. Burris contends his role is not to second-guess the jury but to defend its decision on appeal. Some legal ethics experts, though, say Burris is equally bound not to pursue prosecution of someone he concludes is innocent. To a layperson, this duty to seek justice should be even more compelling in a capital case, whatever the legal conventions.

Is Rolando Cruz innocent? Quite possibly. But the test is not whether one is convinced he's innocent. The test is whether he's been found guilty beyond a reasonable doubt. Under the circumstances, this layman has a hard time concluding that's the case and even less relish for the thought Cruz might be executed in my name and those of the rest of the People of the State of Illinois. *

Charles N. Wheeler III is a correspondent in the Springfield Bureau of the Chicago Sun-Times.

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