Analysis by Steve Warmbir
The story of the kidnapping,
rape and murder of 10-year-old
Jeanine Nicarico rings familiar to
many even now, more than 16 years
after the crime. And it still wields the
power to give pause, to unsettle, to
stun.
Sick with the flu, Jeanine had
stayed home alone from school that
February day in 1983. Her
mother, Patricia, a school
secretary, came home twice to
check on her and make her
lunch. Later that afternoon,
someone kicked in the front
door of the family's
Naperville-area home,
wrapped her in a sheet and
hauled her out of the house.
Two days later, Jeanine was
found dead off an isolated
nature trail, partially clothed,
her body bludgeoned and
sexually assaulted. Police
converged on the scene,
forming a task force to find
her killer.
The pursuit of that killer
has twisted the phrase justice
is blind into a new context.
Three men were charged.
Prosecutors eventually dropped their
case against one of the men, while
the other two, both sent to Death
Row, were set free after more than a
decade of court battles. Their
supporters say the three are clearly
innocent. And now, three former
county prosecutors and four sheriff's
deputies involved in the case are
facing their own court battle in a
DuPage County courtroom.
Known as the DuPage 7, ex-prosecutors Robert Kilander, Patrick King
and Thomas Knight, and sheriff's
officers Dennis Kurzawa, James
Montesano, Thomas Vosburgh and
Robert Winkler are on trial for
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framing one of the defendants,
Rolando Cruz, an admitted burglar
who also volunteered at the trial that
he is seeking psychiatric treatment to
overcome a problem with lying.
Meanwhile, the killer of the little
girl has never been brought to justice.
Brian Dugan, sentenced to life in
prison without parole for other
crimes, has informally confessed to
the murder, and DNA evidence links
him to the rape. But he refuses to
testify in court unless prosecutors
promise not to seek the death
penalty, which they refuse to do.
The trial of the DuPage 7 is the
latest instance in which Illinois'
criminal justice system has fallen
apart in front of the
nation.
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Of course, it's nothing
new for the police and
prosecutors to have cases
reversed or tossed out
because of misconduct.
But if the DuPage 7 are
found guilty, it will be the
first time law enforcement
officials receive felony
convictions anywhere in
the nation for conspiring
to railroad an innocent
man onto Death Row.
And the prosecution
of these seven men —
coming so soon after other
high-profile miscarriages
of justice spotlighted by
the media — may alter the
way the public perceives prosecutors
and the way in which some prosecutors operate in the courtroom, legal
observers say.
"You're seeing the beginning, with
this prosecution, of the end of the
excesses of the past 20 years," argues
Chicago defense attorney Jed Stone,
who represented Cruz at his second
24 / May 1999 Illinois Issues
of three trials. Stone believes the case
will send a message to young, aggressive prosecutors who are tempted to
step over the line that there could be
serious consequences for their
misdeeds, something he says has
been sorely lacking.
"I don't think you need guilty
verdicts for the case to have an
effect," says David Protess, a Northwestern University journalism professor whose efforts to free innocent
men on Death Row in Illinois have
made the front page of The New
York Times. "The message couldn't
be clearer: You better not railroad
someone," Protess says.
The DuPage 7 trial is just the latest
evidence of problems in the state's
legal system. In February, Anthony
Porter, once 48 hours from being
executed for a double slaying he
didn't commit, walked out of Cook
County jail and into the arms of
Protess, who helped prove Porter's
innocence with assistance from his
students and a private investigator.
The investigator had gotten a
Milwaukee laborer to confess on
videotape to the 1982 slaying of a
South Side couple for which Porter
had been convicted.
In March, four other men received
a record-setting settlement of $36
million from Cook County for their
wrongful prosecution. Those men
were exonerated in 1996 of the slayings of a south suburban couple that
had put two of the men on Death
Row. In all, the Ford Heights Four
spent 65 years behind bars for crimes
they didn't commit.
The thread running through these
cases is allegations of misconduct by
police and/or prosecutors.
In the case of the DuPage 7,
though, it's far from certain that any
of the seven will be convicted. They
have all professed their innocence
and are represented by some of the
most talented defense attorneys in
the state. Special prosecutor William
Kunkle, known for prosecuting John
Wayne Gacy, by no means has a
slam-dunk case that has to be
tried before a jury from staunchly
conservative DuPage County.
Kunkle has circumstantial
evidence at best to prove the men
conspired to frame Cruz. And
Kunkle's main witness, Cruz himself,
is a man who has lied repeatedly
under oath and to police.
Though prosecutorial misconduct
has received considerable attention
lately, it is nothing new. (And there's
no solid data to show that it's on
the rise, because no national
agency tracks complaints against
prosecutors.)
The U.S. Supreme Court dealt with
the problem as far back as 1935. In
that decision, justices ordered a new
trial for a man in a counterfeiting
case because of prosecutorial misconduct. Justice George Sutherland
ruled the prosecutor misstated facts
in his cross-examinations, put words
in the mouths of witnesses and
bullied them, among other improprieties. The court held a prosecution's
role in a criminal case "is not that it
shall win a case, but that justice shall
be done." A prosecutor "may prosecute with earnestness and vigor —
indeed he should do so. But, while he
may strike hard blows, he is not at
liberty to strike foul ones."
Certainly, prosecutors wield the
most power in the criminal justice
system. They decide whom to
charge and what crimes to charge
defendants with. They decide who
gets immunity and who doesn't. At
sentencing, they play a significant
role, and they make key decisions on
whether someone lives or dies.
The vast majority of prosecutors
are ethical and operate within the
rules. So, many career prosecutors
balk at the suggestion that prosecutorial misconduct is systemic. And to
be fair, just as some prosecutors
overstep ethical boundaries, so do
defense attorneys. Prosecutors
contend they usually have only one
shot at convicting someone; if
someone charged with a crime gets
off thanks to a defense attorney's
misdeeds, the state has no appeal, no
second chance at justice.
The popular image of the
prosecutor crusading for justice and
protecting the public has been tarred
recently, thanks in part to Kenneth
Starr's pursuit of the President with a
fervor that most Americans found
Illinois Issues May 1999 / 25
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The vast majority
of prosecutors are ethical
and operate within the
rules. So, many career
prosecutors balk at the
suggestion that
prosecutorial misconduct
is systemic.
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distasteful and ugly.
Further, media accounts, books and
films have helped to underscore problems with the justice system in general
and prosecutors in particular.
In Illinois, a recent Chicago Tribune
series found that since 1963, 381
homicide convictions have been
thrown out across the country
because prosecutors concealed
evidence that indicated innocence or
presented evidence they knew to be
false. In all, 46 of those cases were in
Illinois, the second-highest tally in the
nation behind New York.
A new book, Mean Justice, by
Pulitzer Prize-winner Edward Humes,
argues convincingly that a retired high
school principal from Bakersfield,
Calif., was wrongly prosecuted and
convicted in 1993 for killing his wife
to inherit her millions. Humes paints
a portrait of a prosecutor's office out
of control, noting that at least 91
people in Bakersfield had been
released in recent years because of
erroneous or wrongful prosecutions.
Even Clint Eastwood has gotten
into the act. Eastwood is no longer
asking street punks if they feel lucky
as he squints at them down the barrel
of his .357 Magnum. Instead, in his
latest movie, True Crime, he works to
save an innocent man put on Death
Row because of false testimony. A
prosecutor in the film shows little
interest in Eastwood's pleas that an
innocent man is going to be executed.
Best-selling author and defense
attorney Scott Turow, who created an
overzealous prosecutor character in
his novel Presumed Innocent, points to
two factors causing prosecutorial
misconduct: the youth of many
prosecutors and a court system that
does little to punish prosecutors who
cross the line. "I think the real culprit
is not the prosecutors," says Turow, a
former federal prosecutor. "They are
usually young, aggressive advocates
who are doing what they are paid to,
which is to protect the public." Turow
helped win a new trial in 1995 for
Alex Hernandez, one of the
defendants in the Nicarico case. That
same year, all charges were dismissed
against Hernandez.
Pace University Law Professor
Bennett L. Gershman notes that the
U.S. Supreme Court has created a system where it often doesn't hurt prosecutors with weak cases to gamble with
unethical behavior to get a conviction.
"When the prosecutor has a weak
case. ... a subsequent reversal may be
worth that risk," Gershman wrote in a
law review article examining the problem of prosecutorial misconduct.
'"Let's get the conviction now, and
worry about the appeal later on,' is
not an uncommon attitude among
some prosecutors. ... The prosecutor
with a strong case will not be deterred
from engaging in misconduct because
even if his conduct is criticized by an
appellate court, the conviction still
will be affirmed. Similarly, the prosecutor with a weak case will feel that
he has nothing to lose and everything
to gain by engaging in unethical
behavior."
Gershman, Turow and others point
to the 1983 U.S. Supreme Court decision in U.S. v. Hasting as an example
of the Supreme Court stopping a
lower court's attempt to punish a
prosecutor for his bad behavior.
The decision involved the case of
five men charged with kidnapping
three women from the East St. Louis
area and raping them. During his
closing argument, the prosecutor
pointed out, over the defense attorney's objection, that the defendants
did not rebut several key elements of
the case. All five men were convicted.
The Court of Appeals for the
Seventh Circuit reversed the convictions, noting it had previously warned
prosecutors on other occasions about
commenting on a defendant's silence.
With its decision, the court was disciplining prosecutors in its jurisdiction.
But the U.S. Supreme Court disagreed
and reversed the appellate court's
decision, saying the error had been
harmless given the overwhelming case
against the men charged. The
Supreme Court has ruled in other
cases involving alleged prosecutorial
misconduct, deciding that the
misdeeds were harmless error, given
the strength of the cases, and the
convictions were upheld.
So how can the rights of defendants
be protected and prosecutorial
26 / May 1999 Illinois Issues
misconduct deterred? With virtually
every abuse alleged comes a suggested
reform, from requiring police to videotape confessions, to making it easier
to sue prosecutors for misconduct,
to putting a moratorium on all
executions.
"In my view, you need a series of
reforms," Protess says. "I don't think
there is just one reform in a state where
11 people walk off Death Row because
they were innocent. You can't fix any
one aspect without the others. It's like
putting a Band-Aid on cancer."
One problem frequently raised in
wrongful prosecution cases is inadequate counsel for the defendant. One
viable option reformers suggest is
minimum standards for any attorney
representing a client in a capital case.
And they recommend increased funding for pretrial investigations for the
defendants. The Illinois State Bar
Association supports the proposal.
Others suggest the need to create an
effective system for reviewing allegations of prosecutorial misdeeds.
Defense attorney Jed Stone, for
instance, suggests the appointment of
an inspector general to investigate misconduct, arguing the state commission
that currently investigates complaints
against all attorneys doesn't have the
will to go after prosecutors.
Protess, along with Northwestern
University Law Professor Lawrence
Marshall, another frequent advocate
for the unjustly prosecuted, is creating
a not-for-profit group, The Center for
Wrongful Convictions, at the university
to provide a review of prosecutions
and investigations when they go awry.
The DuPage 7 trial is expected to
highlight several instances of abuse.
One example, which is key to the trial,
is the so-called vision statement by
Rolando Cruz that authorities are
accused of fabricating.
During Cruz's conversation with
police in May 1983, he allegedly gave
investigators a vision statement that
contained details only the killer of
Jeanine Nicarico would know. Cruz
denies ever giving such a statement,
and his supporters have argued
officials created it simply to bolster a
weak case. Defense attorneys for the
DuPage 7, though, contend that other
witnesses heard Cruz refer to such a
statement.
The case against Cruz imploded
when a DuPage County sheriff's
lieutenant changed his testimony at
Cruz's third trial in 1995. The officer,
Lt. James Montesano, had previously
supported the existence of a vision
statement by testifying at a hearing
that he had received a phone call at the
time from other officers telling him
about Cruz's statement.
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Even with the DuPage 7
trial focusing attention
on allegations of
prosecutorial misconduct,
it isn't clear what, if
anything, state lawmakers
will do to reform the
criminal justice system.
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But at the trial, Montesano said he
had done some checking and that he in
fact did not remember getting such a
phone call. He had been in Florida at
the time. After Montesano's testimony,
DuPage County Judge Ronald
Mehling acquitted Cruz and called the
change in testimony "devastating"
and "unique in the annals of criminal
justice."
Even with the DuPage 7 trial focusing attention on allegations of prosecutorial misconduct, it isn't clear what, if
anything, state lawmakers will do to
reform the criminal justice system.
Chicago defense attorney Jeff
Urdangen, who represented clients in
the Nicarico and Ford Heights Four
cases, says reforms are needed but
questions whether politicians will have
the will to enact them. Reforms to the
criminal justice system often are
criticized as being soft on criminals.
"I'm not exactly enthusiastic about
the prospects," Urdangen says.
Meanwhile, caught in the storm are
Patricia and Tom Nicarico, the parents
of Jeanine. The couple attended opening arguments in the DuPage 7 case
and support the men on trial.
While it's clear that the justice system
fails the innocent men put on Death
Row, such failures also devastate the
families of the crime victims.
They are put through trials and
appeal after appeal. And they experience the relief of believing culprits
have been caught, only to be told later
they are in fact innocent. The guilty
often go unpunished. And for the
families of the dead, there is never
closure, never an end.
Steve Warmbir writes about legal affairs
for the Daily Herald, and has covered the
DuPage 7 trial/or the newspaper.
Illinois Issues May 1999 / 27