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A Capital Blunder

If ever a case illustrated the risk and folly of capital punishment, it is the conviction of Alex Hernandez and Rolando Cruz for the rape and murder of Jeanine Nicarico. Ten months after they were sentenced to death, another man confessed to the crime.



Ten-year-old Jeanine had the flu on February 25, 1983, and stayed home from school. Her father, an engineer, went to work in Chicago. Her mother, a school secretary, went to work in Naperville, the prosperous western suburb in Du Page County where the Nicaricos lived. By three o'clock that afternoon, Jeanine was dead.

If ever there were a crime that would seem to demand, or at least justify, a punishment of death, it was the savage rape and murder of Jeanine Nicarico. The trouble is, the wrong guys may well have been sentenced to death. If ever there were a case that illustrates the risk and folly of capital punishment, it is the conviction of Alex Hernandez and Rolando Cruz for the rape and murder of Jeanine Nicarico.

Patricia Nicarico came home about noon that Friday to fix her daughter a sandwich and a glass of milk. Hearing that Jeanine had allowed the gas-company man into the house that morning, Mrs. Nicarico admonished her daughter never to let strangers inside. As she left, Patricia Nicarico would later testify in court, Jeanine "gave me a hug and a kiss and she just squeezed me real, real tight. I said, 'I don't really want to go, Jean, and don't let anybody in, even if they ring the bell. Just call me and I'll be right home.'"

Sometime after two o'clock someone did come to the door. Jeanine answered the knock but refused to open the door. A man called out that he needed a screwdriver to fix his car, but Jeanine told him she wouldn't give him a screwdriver or let him in. As she turned to go back downstairs to the family room, the man who eventually confessed to her murder says he saw her through a window. She was wearing a pink nightshirt with Sleepy the Dwarf on it and the inscription "I'm sleepy." Later he would tell investigators, "When I saw her I had to have her." He kicked in the front door.

The man says he grabbed Jeanine as she came up from the family room in the split-level house and carried her upstairs to an unmade bed in her 14-year-old sister's bedroom. He tied her up and wrapped her in a sheet from the bed. Then he left her in the bedroom and went outside to get some tape and move his car from the street to the driveway, closer to the house. When he returned, he folded a towel around Jeanine's eyes as a blindfold and secured it with tape with zigzag edges.

He says he carried Jeanine, bound and gagged, to his car and drove to the Illinois Prairie Path between Aurora and Naperville, just off the East-West Tollway. There, in the backseat of his car, he raped her, anally.

He told her he would take her home. They got out of the car, and as they walked around behind it he hit her twice on the back of the head with a tire iron. She fell to the ground, striking her head on the car bumper. He says he hit her on the forehead and hit her face with a tree branch, dragged her body through some bushes, and left it about 20 feet off Prairie Path. He then drove away, but not before first driving in the wrong direction, toward a dead end, and getting stuck in some mud as he tried to turn around. Nearby, two Illinois tollway workers watched as the man freed his car from the mud and drove away.

Investigators hardly knew where to begin, but leading the investigation was the Du Page County Sheriff's Department's top cop, Detective John Sam, who regularly led the department in felony arrests. After a $10,000 reward was offered for information that would lead to the conviction of Jeanine's assailant, anonymous tips flooded the sheriff's office. Finally, after weeks of spinning their wheels, Sam and his partner got their probe in gear. An anonymous caller said Alex Hernandez, a young Hispanic living in Aurora, knew about the Nicarico slaying.

On March 14 Sam visited Hernandez, who told him that while he was drinking beer in a car with friends one night, a guy named Ricky suddenly began talking about killing Jeanine Nicarico. Sam never found Ricky, but he did find Stephen Buckley, who Hernandez said had also been in the car and must have heard the references to the Nicarico murder. When Sam questioned Buckley, he showed him a picture of the boot print on the Nicaricos' front door. Buckley acknowledged that he had a pair of boots with a similar sole design. Without hesitation, Buckley let Sam take his boots to the crime lab, where the chief of the identification section concluded that Buckley's boot did not match the print on the door. The chief did not write a report about his findings, although he apparently discussed them with the Du Page County sheriff. A later report from the state crime lab was inconclusive. The boot was sent to the Kansas Bureau of Investigation, where a criminologist said Buckley's boot "probably" made the print. Years later the FBI crime lab would reach the opposite conclusion.

John Sam was increasingly persuaded that Hernandez and Buckley killed Jeanine. He questioned them relentlessly, attempting to get them to confess, but neither would. Once, detectives enlisted help from a friend of Hernandez's, a Hispanic man nicknamed Penguin who was in Du Page County Jail on a burglary charge. They put Hernandez in a room with Penguin and a box of money, supposedly the $10,000 reward. Penguin, assured that his burglary charge would be dropped, was to say that he planned to finger his uncle in the murder of another youngster, collect the reward, and settle happily in Puerto Rico. He told Hernandez he could get a similar deal if he helped the authorities solve the Nicarico case. The ploy seemed to work. As John Sam listened through recording devices, Alex told Penguin that he and others had been involved in the crime. "I'll tell you how the girl was killed," he said. "I held her down." He said he could show police where the crime took place.

But he couldn't. For days Hernandez led Sam and his partner from farmhouse to farmhouse, never finding the right house--because Jeanine wasn't killed in a house. Sam became convinced Hernandez had nothing to do with killing Jeanine Nicarico.

But the detective continued to believe Buckley was involved in the crime. He also began questioning Rolando Cruz, a 19-year-old who is also from Aurora and who was mentioned by Hernandez. Cruz denied he was involved in the slaying but told investigators that Hernandez had told him that Jeanine was raped, killed with a baseball bat, and kicked down the stairs of an Aurora apartment building.

Du Page County prosecutors, led by Assistant State's Attorney Tom Knight, developed the theory that Cruz, Hernandez, and Buckley went to the Nicarico home to burglarize it, were surprised by Jeanine, raped her, and then killed her to prevent her from identifying them. But as prosecutors became more sure of their theory, Sam became more dubious. The odds against three burglars also being child molesters, Sam once said, "are astronomical."

On March 9, 1984--two weeks before the Republican primary in a close race for Du Page County state's attorney--a special grand jury indicted Cruz, Hernandez, and Buckley for murder, kidnapping, and aggravated criminal sexual assault.

In early January 1985 the three defendants went on trial. The atmosphere, understandably, was highly charged. Witnesses, including Jeanine's parents, broke down in tears, as did jurors. Some witnesses and one of the jurors became physically ill at the descriptions of the brutality and randomness of the crime. As Jeanine's father said at one point, "It's the bogeyman come to life. There is a bogeyman. It's for real."

Despite his doubts about their guilt, John Sam had hoped the indictments--and the prospect of the death penalty--might push one of the defendants to confess or to implicate the others. Instead, his doubts grew. Why, he wondered, didn't one of the three turn state's evidence against the other two to save his own skin? "I felt I had a group of petty burglars here," Sam told Chicago Lawyer magazine three years ago. "One's got to talk. This isn't the crime syndicate we're talking about. It's three mutts. They're not that tough."

But none of them confessed. Eventually, Sam became so sure that all three were innocent that he resigned from the sheriff's department and offered, in vain, to testify on their behalf.

There was no shortage of people willing to testify that the defendants, particularly Cruz and Hernandez, had admitted to the crime. The chief evidence against Buckley was the boot print. Penguin testified about his conversations with Hernandez in the county jail. Hernandez's cousin told the court the defendant had admitted that he participated in the crime. A sheriff's department lieutenant and a jailer each testified about stories Hernandez told them about the crime, although the stories differed substantially. The primary witness against Buckley was a North Carolina professor who claimed to have the ability to determine who made a shoe print by examining the impression the foot leaves inside the shoe. She said Buckley left the boot print on the Nicaricos's front door. The jury was unable to reach a verdict about Buckley's guilt. Ultimately the charges against him were dismissed.

But after seven weeks the jury found Cruz and Hernandez guilty. On March 15, 1985, Judge Edward Kowal sentenced them to death.

In April 1985 Cruz and Hernandez moved to death row at Menard Correctional Center in southern Illinois. Under Illinois law all capital cases are automatically appealed to the state supreme court. The courts appoint a state appellate defender to represent indigent defendants like Cruz and Hernandez. In July 1985 Tim Gabrielsen and John Hanlon, of the Fourth District office in Springfield, were appointed to represent Cruz. Larry Essig, of the supreme-court unit in Springfield that normally handles capital cases, was named to handle Hernandez's appeal.

"At the outset we had no reason to think they were not guilty," Gabrielsen said recently. "Most of the guys we represent are guilty of something, although sometimes we don't think they're guilty of what they were convicted of." But as they read the 11,000 pages of trial transcripts, Gabrielsen says, "it became very clear how little evidence the state had against them. We kept waiting to see the smoking gun and were surprised to find there wasn't one. We thought the evidence was extremely weak. There was no question the prosecution failed to prove these guys were guilty beyond a reasonable doubt. They were just out to convict somebody."

Gabrielsen and Essig attacked the convictions on a number of fronts. But from the beginning the most promising strategy appeared to be to zero in on Judge Kowal's refusal to grant the three defendants separate trials. It is, of course, cheaper to have one trial rather than three, and the prosecution argued that it was one crime, not three, that was committed. The defense attorneys argued strongly and repeatedly before and during the trial that the case against one defendant would jeopardize fair trials for the others, but Kowal rejected their pleas.

Gabrielsen and Essig argued that through the testimony of the various prosecution witnesses each defendant was in effect testifying against the others. Some witnesses testified that Hernandez told them he "and friends" committed the murder. Others said Cruz admitted doing the crime "with friends." And some testified that Hernandez, Cruz, and Buckley were friends. But because the references to the defendants were indirect, and therefore didn't directly implicate the defendants, their lawyers could not cross-examine the witnesses on these points. That, the lawyers argued, deprived the defendants of their Sixth Amendment right to confront witnesses against them. "The defendant here," Supreme Court Justice Seymour Simon wrote of Hernandez in his court opinion, "was plainly incriminated by the reference to 'friends' not only because of the state's repetitive attempts to establish friendship but also by the prosecutor's closing argument, in which he linked the "friends' evidence to admissions made by Cruz and [Hernandez]."

On January 19, 1988, the supreme court ruled that the Du Page County judge erred in not granting separate trials, overturned the convictions, and ordered new trials for Cruz and Hernandez. But somehow the court rejected the defendants' contention that the prosecution failed to prove them guilty beyond a reasonable doubt.

In November 1985, more than a year before he would present oral arguments to the supreme court on behalf of Rolando Cruz, Gabrielsen took a call from one of the public defenders who had handled Cruz's trial. "I've got some interesting news," the lawyer told Gabrielsen. It seemed a man who had been arrested for the rape and murder of a little girl in LaSalle County in June had confessed to his attorney that he had killed Jeanine Nicarico. Gabrielsen recalls his reaction: "I said, 'Oh yeah. I'll believe it when I see it.' I mean, that never happens."

On June 2, 1985, seven-year-old Melissa Ackerman and a friend were riding their bikes on the outskirts of Somonauk, a small town north of Ottawa. Brian Dugan, 29, was driving on the same road. He snatched Melissa. Her friend escaped. Melissa was raped and drowned.

By the time her body was found, two weeks later, Dugan was in jail in Aurora on charges that he had raped and murdered a 27-year-old woman. When Dugan was first interviewed by his public defender, George Mueller, he confessed to the crimes he was accused of. Then he confessed to the crime that had sent Alex Hernandez and Rolando Cruz to death row.

Mueller contacted public defenders in Du Page County and eventually the state's attorney's office. He also recognized that prosecutors had a strong case against his client in the Ackerman case, and he began angling for a plea bargain. Dugan, he said, might plead guilty to a number of crimes, clearing up a string of unsolved rapes and other violent crimes in exchange for life in prison rather than the death penalty.

When Mueller first hinted to Du Page prosecutors that his client might be connected to the Nicarico case, the prosecutors were skeptical. They thought Dugan was only trying to up the ante for his plea bargain, which is not an illogical assumption. As Mueller once noted, "This is a real weird, kind of backwards thing, but as a defendant you may be better off in terms of plea bargaining if you've killed more people than if you've only killed one. Because in exchange for the state agreeing to give you some consideration, you solve some other crimes--you do good, so to speak." The Du Page prosecutors said Dugan could have learned details of the Nicarico case from the extensive publicity about it. So they gave Mueller some questions about the case that only Jeanine's assailant could answer and sent him to talk to Dugan. An hour later he returned with the answers and asked, "Well, how did I do, fellas?" Mueller says that after a "very long, pregnant pause" the prosecutors said, "Listen, we'll get back to you."

By mid-November 1985, six months after Cruz and Hernandez had been sent to death row, Mueller had made a deal with authorities in LaSalle County and Aurora. But Du Page County hadn't gotten back to him. "I had the attitude from day one that the Du Page County people weren't going to want to hear any of this because it made them look real bad," Mueller told the Washington Post. "We were asking them to let two guys off of death row . . . without putting anyone there in their place."

Dugan had no reason to lie about his involvement in the Nicarico case. His deal was in hand. Yet he continued to maintain that he had killed Jeanine. During a talk with a state-police investigator, Dugan recounted in gory detail what he had done to Jeanine. Much of that story checked out.

He described the serrated tape he used to bind the blindfold around Jeanine's head, a detail that had not previously been disclosed. Investigators found that the pharmacy where he said he bought the tape did indeed sell it. He said he tried unsuccessfully to penetrate the girl's vagina and then raped her anally, consistent with pathology reports that were never disclosed in the press. Pathologists said the blows to Jeanine's head could have come from a tire iron, as Dugan claimed. Although investigators did not find the weapon, they did discover that the type of tire iron provided in 1980 Volares, the car Dugan owned then, could have made the marks on her head. One of the tollway workers who were near Prairie Path described the car as dark green with a missing hubcap, details that were consistent with Dugan's car (the worker thought it was a Ford rather than a Plymouth, but the body styles of the two models were similar). He also said the driver of the car was a white male in his late 20s, a description that fit Dugan but not Cruz and Hernandez, who were dark skinned and only 19 at the time. Work records corroborated Dugan's claim that he missed work the day Jeanine was killed. Dugan was able to take investigators to the Nicaricos' house and to the site where their daughter's body was found. Dugan's lengthy criminal record included abductions in which he concealed his victims by wrapping them in sheets or blankets, and burglaries in which he gained entry by kicking in a door. He told his story under hypnosis and convinced both the hypnotist and a polygraph operator that he was telling the truth.

However, he also made some mistakes. Though he said he moved his car into the Nicaricos' driveway, he failed to notice a sailboat that was parked there. He accurately remembered where the stairs were in the house but reversed the location of the stairs that went to the second floor and the stairs that went to the basement. He said he left Jeanine's body faceup, but she was found facedown. He said Jeanine had nail polish on her toenails, but when her body was exhumed there were no traces of polish on her toes, although polish had been found on her fingernails during the autopsy.

The inconsistencies, and in some instances his evolving stories, convinced the Nicaricos that Brian Dugan was lying. In April 1987 the Nicaricos held a press conference to dispute Dugan's account and reaffirm their belief that Hernandez and Cruz killed their daughter. They cited more than 25 errors in Dugan's story--including his original claim that he abducted the girl at 11 AM and several details about their home--and said that someone had fed Dugan information that enabled him to make his story more accurate.

The Nicaricos are not the only ones who are skeptical about Brian Dugan's tale. Robert Kilander, one of the original prosecutors in the murder trial, insists that Alex Hernandez and Rolando Cruz should stand trial again. He has resisted legal maneuvers by their defense attorneys to introduce Dugan's confessions as evidence in a new trial. The case is now in the pretrial stage, and Judge Kowal will soon hear arguments from defense lawyers and the state's attorney on whether he should allow Dugan's confession to be admitted. If there is another trial, it probably will be scheduled for the fall, according to defense attorney Michael Metnick, of Springfield.

Even the lawyers who have been defending Hernandez and Cruz cannot say absolutely that their clients are innocent. "The evidence suggests my client is innocent," Metnick says of Alex Hernandez. A Chicago lawyer, Jed Stone, is representing Cruz, though the attorneys are working in tandem during the pretrial proceedings. "There were two people on death row who were not guilty of the crime," says Metnick.

Although some holes have been poked in Brian Dugan's story, other events have bolstered it or have undermined the case against Cruz and Hernandez. In December 1987 Hernandez's cousin recanted his testimony that Alex had admitted a role in the crime. He said prosecutors had scared him into testifying. In early 1988 scientific analysis of hair samples taken from the blindfold around Jeanine's eyes strongly implicated Dugan and exculpated Cruz and Hernandez. The analysis revealed two "abnormalities"--one of them described as "fairly rare"--in the sample that were consistent with Dugan's hair but not with that of Cruz or Hernandez. In May DNA tests of blood samples from Dugan, Hernandez, Cruz, and Buckley were disclosed. The tests, lawyers on the case say, exonerated Hernandez and Buckley, were inconclusive regarding Cruz, and implicated Dugan. "The forensic evidence establishes Dugan's guilt, the circumstantial evidence and the eyewitness evidence show his guilt, and now the scientific evidence points to Dugan," says Metnick. "You compare all that to the paucity of evidence against Hernandez and Cruz, and it's bewildering how the state can pursue this case. It's morally dishonest."

At the very least, reasonable doubts have been raised about the guilt of Cruz and Hernandez, and the state is legally required to prove guilt beyond a reasonable doubt before a conviction is warranted.

All of which has raised questions about the potential danger of imposing the death penalty. "As a society, aren't we making a great mistake when two innocent people come this close to execution?" says Metnick. "Maybe we need to rethink the death penalty in this country."

Thirty-eight states have capital punishment, and more than 2,100 prisoners reside on death rows nationwide, including 121 in Illinois. Cruz and Hernandez are no longer among them, for the time being anyway. Nobody has been executed in Illinois since the state reinstituted capital punishment in 1976. In May federal judge Harold Baker ruled that the Illinois statute was unconstitutional--temporarily sparing death-row inmates while the decision is appealed by the state. The judge declared that the law affords state's attorneys too much discretion in seeking the death penalty, thereby violating the U.S. Supreme Court's mandate that executions not be "capricious and arbitrary."

But, like Metnick, some worry that executions might be not only capricious but unjust. A Florida man who in 1972 was only days away from execution was released from prison this spring after a judge concluded that his conviction for poisoning seven children had resulted from prosecutorial misconduct and perjured testimony. A Texas man who spent 12 years in prison--and was at one point only one week away from being executed--for a murder that another man has all but admitted was also recently freed. After an extensive study of capital cases between 1900 and 1985, Professor Michael L. Radelet concluded that an innocent person was convicted in 350 of those cases and that 23 of the innocents were executed.

Tim Gabrielsen, of the state appellate defender office, acknowledges that "most of my clients on death row are guilty." Still, he believes the prospect of executing an innocent man is a compelling reason to abolish the death penalty. "The fact that two guys were on death row who were not guilty is testament to the absurdity of the death penalty. I don't think most people realize that mistakes are made."

Art accompanying story in printed newspaper (not available in this archive): illustration/Richard Laurent.

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