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Comment: Prisoners of Politics

Two men waste away in prison, one on death row, because Roland Burris, the man who would be governor, lacks the courage to let them be tried again.



Two ambitious, high-profile political figures aim in next Tuesday's primary election to take the next critical steps in their promising public careers. One is Attorney General Roland Burris, who is seeking the Democratic Party's nomination for governor of Illinois; if he wins and goes on to defeat Governor Edgar in the general election next fall, he'll be Illinois' first African American governor. The other is Du Page County state's attorney Jim Ryan, who narrowly lost the attorney general race to Burris in 1990; endorsed recently by the Chicago Tribune, he's heavily favored to earn a second chance at the job by winning the Republican primary next week.

The black Chicago Democrat has little in common with the white suburban Republican who seeks his job--but both their fates are entwined with those of two other men who have not been so lucky in life. While the candidates bask in the glow of public attention, these two waste away in grim downstate prisons, despairing and depressed, at the mercy of a system that they and others believe has betrayed them. One waits on death row, the other in solitary confinement. Both are sentenced for vicious murders they almost certainly did not commit.

One is in prison because of Jim Ryan's tenacious pursuit of a prosecution that is now widely regarded as a sham. Both are in prison because Roland Burris lacks the courage to let them be tried again.

Reams have been written about the first prisoner, Rolando Cruz. The crime he's been convicted of, the gruesome slaying and sodomization of ten-year-old Jeanine Nicarico in February of 1983, sent waves of disgust, disbelief, and outrage through the "safe" suburb of Naperville. Snatched from her home in midday, the little girl was found facedown in a muddy field, her skull crushed by blows from a tire iron.

The pressure on law enforcement officials to find and apprehend the killer escalated in a matter of days from intense to unbearable, providing the perfect setting for a quick, wrongful arrest and a politically driven prosecution.

Naperville police officers, Du Page County sheriff's deputies, and FBI agents were assembled into a 50-member task force, and a massive manhunt, largely fruitless, ensued. After three weeks, a tip led to Alex Hernandez, a slow-witted teenager who lived in Aurora with his mother and grandmother. With visions of the $10,000 reward money anted up by the city of Naperville and delusions of suddenly becoming a "big man," Hernandez blabbed vaguely, implicating himself and two local drifters, Cruz and Stephen Buckley. None of the three had ever been involved in violent acts, only minor scrapes.

Months later, less than two weeks before the hotly contested Du Page County primary election for state's attorney in March of 1984, incumbent J. Michael Fitzsimmons grandly announced indictments of the three, though there were no witnesses or physical evidence. This announcement would be enough, he guessed, to beat Jim Ryan, his foe for the prosecutor's job. It didn't work: Ryan beat Fitzsimmons in the primary and was easily elected in November in the overwhelmingly Republican county. As the new state's attorney he could have dropped the prosecution initiated by his political opponent, but instead he pursued it with zeal.

Even then, some of those closest to the case knew the indictments missed the mark. Sheriff's detective John Sam, a key investigator from the beginning, urged prosecutors to give it up.

"You've got the wrong guys," he told first assistant state's attorney Tom Knight, a gung-ho prosecutor who to this day, as a private lawyer in Wheaton, proudly recounts his role in convicting Cruz. Sam, a career investigator whose father was a Cicero cop, was so certain of Cruz's innocence that he made the wrenching decision to resign a month before the trial rather than participate as a witness.

The linchpin of the prosecution's case was a dubious "vision" story told by two of Sam's colleagues. They testified under oath that Cruz told them he'd had a vision filled with mostly accurate details of the Nicarico abduction and murder. Though Cruz supposedly made this admission in May of 1983, when every step of the investigation was being carefully documented, the sheriff's investigators took no notes on Cruz's startling story, made no recording, and failed to relate it to their colleagues (including Detective Sam) or to the grand jury that indicted Cruz. In fact no one connected with the investigation seemed to know anything about the vision until the prosecution suddenly brought it up more than a year and a half later, just a few days before the trial was to begin.

There was no physical, eyewitness, or scientific evidence that tied Cruz in any way to the murder of the Nicarico girl. Nor was there any hint of violence in Cruz's past. Nonetheless Cruz and Hernandez were found guilty and sentenced to death by Judge Edward Kowal (who, incidentally, has since been elevated to chief judge of Du Page County). The jury deadlocked on Stephen Buckley, and he has never been retried.

Less than three months after the trial, in La Salle County, which is mainly rural and about 50 miles south of Du Page, a seven-year-old girl named Melissa Ackerman was snatched, raped, and brutally murdered--a close replay of the Nicarico death. A day later the police had a suspect in custody, a scruffy loner named Brian Dugan, who promptly admitted to his attorney, a public defender, that he had killed not only Melissa Ackerman but also Jeanine Nicarico and another young woman in Kane County. Dugan also was faced with three rape charges in which the victims had positively identified him in police lineups.

His lawyer, public defender George Mueller, was confronted with a major ethical dilemma. He was obliged to represent his client diligently and also to respect the attorney-client privilege, but he was unwilling to let Cruz and Hernandez face the death penalty for a crime they clearly didn't commit. So he plea-bargained to get Dugan a life sentence without parole rather than execution. The prosecutors from La Salle and Kane counties bought the deal proposed by Mueller without hassle or dissent. But Ryan and his team of Du Page prosecutors, who already had engineered the convictions of the wrong men, turned a deaf ear to the Dugan confession. They were tight-lipped and unresponsive.

"I had the impression [they] did not want to hear anything," Mueller said later. Dugan was a far more likely suspect than the two men who had just been convicted in the Nicarico murder. He had a long string of sex crimes similar in their savagery to that brutal slaying; all had been committed within a stone's throw of Du Page County, all involved young girls, and all were committed, Dugan said, by him alone. But Dugan's confession would destroy the case so meticulously contrived by the Ryan bunch. That would leave an indelible blot on Ryan's reputation as a fair and able prosecutor.

Despite some inconsequential inconsistencies, Dugan's confession was supported by massive corroborating evidence, precisely what was lacking in making the case against Rolando Cruz.

Consider these facts:

On the afternoon of the murder, two tollway workers spotted a white male driving a boxy green car with a hubcap missing on the path where Jeanine Nicarico's body was found. Dugan owned a car matching that description.

Dugan was seen a few blocks from the Nicarico home shortly before the little girl was abducted.

Dugan missed work the day of the murder.

Dugan wore a boot whose size matched the marks on the door that was kicked in to gain access to the Nicarico home.

Dugan's semen sample matched the semen extracted from the child's body.

Dugan passed polygraph and hypnosis exams administered by the Illinois State Police.

Dugan gave a detailed and accurate description of the inside of the Nicarico residence and of the crime itself.

Key law enforcement officials were so sure of Cruz's innocence, and Dugan's confessed guilt, that they came forward and spoke out unequivocally, something rare in touchy, high-visibility cases. A couple resigned, effectively demolishing their careers in law enforcement; others wrote to the sentencing judge.

Among these were:

Jeremy D. Margolis, former director of the Illinois State Police, now a partner in the prominent Chicago law firm of Altheimer & Gray, whose agency thoroughly investigated the case at the behest of Du Page County officials between 1985 and 1987. Margolis, who after leaving the state police went on to represent Alex Hernandez in the case, wrote a sentencing judge in 1991:

"I was briefed by the officer in charge [of the Jeanine Nicarico murder investigation] on a number of occasions and have reviewed the files relating to the case. I share with a 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 . . . "

Earlier Margolis stated, "I absolutely, positively believe they've convicted the wrong man."

Mary Brigid Kenney, a young assistant attorney general under Roland Burris, who was assigned to write a brief upholding Cruz's conviction and opposing a new trial. In February of 1992 she sent her boss a passionate memo based more on morality than sheer legality:

"I cannot in good conscience allow my name to appear on a brief asking the Appellate Court to affirm this conviction. I submit, respectfully, that the Attorney General should not do so either."

She added, "No harm will result from a confession of error in this case. . . . The execution of an innocent man would destroy confidence in our criminal justice system."

When shortly it became obvious that her idealistic words would go unheeded, Kenney wrote Burris again on March 5, formally resigning her post:

"I pray that you will take the opportunity of my resignation to reconsider your decision to defend Du Page County's prosecution. . . . I beg you, General Burris, please begin mitigating the damages of this ugly prosecution. Do not help executing an innocent man."

Burris was adamant. He told a reporter for the LA Times magazine: "Our job is to sustain what the jury ordered and the judge entered."

Former Kane County state's attorney Gary Johnson, Ryan's counterpart there, who accepted Brian Dugan's admission of a Kane County murder, felt so strongly he went to see Burris to make a case for Cruz and Hernandez. Burris was not present, but his aides listened, took notes, and sat silently. Two days later, the attorney general's office filed its brief, opposing Cruz's argument for a new trial.

"When the public understands what has occurred," Johnson said, "the prestige and credibility of prosecutors everywhere will be adversely affected. The Nicarico case will do to prosecutors what the Rodney King police-beating tapes have done to the police."

Johnson added: "The system doesn't always work, and it hasn't this time. . . . It's got to be stopped. It takes courage, it sure does, but you have to do it. Justice has to be done."

James Teal, Naperville police chief, whose belief was so strong and outspoken it got him thrown out of the sheriff's office one day during the heat of the investigation: "I'm positive they didn't do it. Dugan did it," said Teal.

In 1988 the Illinois Supreme Court overturned the convictions of Cruz and Hernandez, ruling that the two should have been tried separately. Instead of taking this opportunity to drop the case gracefully, Ryan's office retried them both, using many of the same witnesses and, in Cruz's case, the same fishy "vision" testimony they had used in the first trial. They also argued forcefully, and with some success, against letting the new juries hear about Brian Dugan's confession or similar crimes. Hernandez was convicted again but received a reduced sentence of 80 years. Cruz was again convicted and sentenced to death.

After the Illinois Supreme Court affirmed Cruz's second conviction in late 1992 by a 4-3 vote, a reconstituted court, with three new members, granted his petition for rehearing. The case has been reargued, and another opinion could come at any time. Rolando Cruz could yet go free. Or he could eventually be executed. When he meets his fate, whatever it is, will Jim Ryan be attorney general of Illinois? Will Roland Burris be governor?

The case of Steve Shores is a little less known. Shores was convicted of murdering Garrison Hester, an armed security guard, on August 10, 1982, on South Drexel Avenue in Chicago, just a few doors from the headquarters of the notorious El Rukn gang.

This murder was just one more sordid episode in Chicago's daily street warfare. It can't match in pathos the brutal slaying of a little girl. But the injustice here, too, is manifest and cruel, the product of a callous system that is especially harsh on blacks and Latinos--a system that amounts to a form of penal apartheid. It has already cost Shores, a young man with no prior blemishes, 11 precious years behind bars for a crime he didn't commit.

The North Shore News/Voice community newspapers, which I edited, first broke the Steve Shores miscarriage of justice story in 1986, with a column by investigative reporter Rob Warden. As Warden reported then, the evidence is overpowering that Steve Shores was not involved in the Hester murder. He was an Army vet, employed at the time of the crime; his life and record previously were clean and positive. The chief witnesses against him were David "Bo" Burns and Chester "Blood" Bland, both ranking members of the El Rukns. In his defense Shores claims that Bo Burns is the real murderer and that the two testified against him to save their own skins. The judge who found Shores guilty and sentenced him to 35 years in prison, James J. Heyda, has been characterized by the Cook County Bar Association as "racially insensitive" and a consistent ally of prosecutors.

After a series of appellate setbacks, hopes for Shores rose when U.S. District Judge Paul E. Plunkett, in the fall of 1990, ordered a new trial, stating that "it was irrational for the State Court to find Shores guilty of murder. . . . No reasonable fact-finder could continue to find Shores guilty beyond reasonable doubt."

But that order was overturned by a federal appeals court in 1991. Arguing against the new trial was the office of Illinois attorney general Roland Burris.

Andrea Lyon, Shores's public defender, who as a private lawyer has continued to represent him without pay because "I believe so firmly and passionately in his innocence," practically begs, "Just let me try this case before a jury."

But the attorney general who would be governor is unmoved. The state of Illinois views its role rigidly and narrowly and continues dead set against the new trial ordered several years ago by Judge Plunkett.

In November 1990, 60 Minutes aired a powerful segment on the Shores case. Reporter Steve Kroft bore down on Joseph Claps, first assistant attorney general in charge of the criminal division, who stated on camera:

"This really is not a question of whether we want to see Shores get a new trial. Our responsibility is to uphold the conviction."

Kroft, incredulous, prodded Claps. "And your job is not to look at the facts and say, yes, this case should be retried, or no, it shouldn't be retried?"

"No, it's not," responded Claps.

"Your job is strictly . . . "

"To uphold the conviction."

" . . . just to uphold the conviction." Kroft was aghast.

"That's right," said Claps matter-of-factly.

Eugene Pincham, who as an Illinois appellate court judge had heard arguments on Shores's case and was convinced of his innocence, roared his displeasure on 60 Minutes. "Claps is dead wrong. His responsibility is to pursue justice, to uphold justice. The community has not been protected one iota by the conviction of this fine young man. The culprits are still out there.

"I suggest to you and your viewing audience," Pincham told Kroft, "that law and order demands justice and fairness, and not sending innocent people to the penitentiary."

Among Shores's staunchest backers are Marti and Larry Bartelt, Highland Park residents who read the News/Voice articles and virtually "adopted" Shores in prison. They have worked tirelessly to get him out, speaking in his behalf before countless church and civic groups. They've spent a half dozen Christmases at his side in prison, taking along their daughter, Sarah, who's now a fourth-grader.

Like Kane County prosecutor Gary Johnson in the Cruz case, the Bartelts finally wangled an appointment with Burris, urging him (as they said in a letter) to "do the right thing by overruling your aide and withdrawing the state's appeal of Judge Plunkett's order for a new trial."

And like Johnson, the Bartelts got nowhere. A few days ago, Marti told me of their meeting: "Burris really wasn't interested. He went through the motions and obviously wanted to get it over with. He had no comment at all. Claps did all the talking. He told us in a condescending way they had looked into the Shores case and were comfortable in upholding the conviction and opposing a new trial. Justice didn't enter into it, and Mr. Burris didn't utter a peep. We were really disillusioned."

For Steve Shores the pain of this injustice extends far beyond his incarceration. Before his trial, after blunt warnings from El Rukns not to tell police the true story, which would incriminate the real murderers, Shores was roughed up near his home and told to keep his mouth shut or run the risk he would "end up in the morgue."

After Shores's conviction came the unimaginable. His sister Norma, 29, was kidnapped as she was leaving her job as a bartender, possibly raped, taken to a south-side high rise, and hurled to her death from a 12th-floor elevator walkway. The police treated the vicious slaying as a sex crime, unrelated to the Shores case, which was "already solved," they told attorney Lyon.

Last fall Andrea Lyon filed a tough brief with the Illinois Appellate Court, a last-ditch bid for the new trial she is convinced her client deserves.

The appeal is based on what Lyon's brief calls "startling" new evidence, notes taken by police and federal agents in their prosecution and breakup of the El Rukns. These notes indicate that Bo Burns and Blood Bland "have participated in many murders" and that Bo has "had practice at framing people for his crimes" in a manner akin to the framing of Shores.

Even more startling, the brief alleges, is a federal agent's note in which an immunized former El Rukn described the murder of "an older security guard," who was killed at 39th and Drexel and fits the description of Garrison Hester. The informant implicates Bo Burns and himself in that murder.

More new evidence comes from a previously unknown eyewitness who was flushed out by a tabloid TV report on the case. Anthony Brooks has come forward and said he saw the aftermath of the shooting, when the victim was on the ground. He saw a man going through the victim's pockets and states unequivocally that Steve Shores was not the man.

Lyon's petition also accuses the prosecution of extensive "material misrepresentations" that were "consistent, central, and calculated." She claims these misrepresentations were especially damaging because Thomas Cawley, a new judge assigned to the case after Judge Heyda left the circuit court's criminal division, had no familiarity with the original case, doggedly refused to read the trial transcript and familiarize himself with the facts, and thus obtained much of his information and drew conclusions based on the "continual misrepresentations" of the prosecution.

Awaiting a ruling from the appellate court, Lyon worries that Shores could be murdered by El Rukns incarcerated with him at Pontiac. Long upbeat and optimistic that the system would eventually come to his rescue, he's now described by Marti Bartelt as downtrodden and depressed.

Jeff Urdangen, a Chicago defense lawyer who has represented Alex Hernandez and serves as chairman of the Death Penalty Committee of Illinois Attorneys for Criminal Justice, has written this concerning the Jeanine Nicarico case:

"One can imagine how difficult it would be for local authorities to concede that Dugan alone killed Nicarico. To do so would be to admit grievous error, one that allowed a vicious criminal to remain free for what turned out to be over two more years. During that time, young Donna Schnorr in 1984 and eight year old Melissa Ackerman in 1985 were raped and murdered by this sick sociopath. The choice was clear: a cathartic mea culpa demonstrating a fully intact moral compass, or a political decision based on career path-tolerance analysis.

"State's Attorney Ryan made his choice . . . "

And Attorney General Burris made his. Though the facts in both the Cruz and Shores cases far exceed the modest protective standard of reasonable doubt, Burris and his staff have ignored every entreaty and fought fiercely to uphold the convictions and let justice be damned.

Deeply troubling questions arise as Burris and Ryan ask the voters of their parties to nominate them as candidates for two of the most powerful posts in Illinois government:

Does their stolid indifference to the fate of these two disadvantaged citizens provide reason to doubt that they will fairly and effectively represent all the people of this state?

Does their conduct in these cases suggest character flaws that render them unfit to assume the daunting responsibilities they seek?

What does their defiant, tight-lipped unwillingness to admit the possibility of error tell us about their devotion to justice over political expediency?

These are questions that voters should consider seriously as they cast their ballots on Tuesday.

Art accompanying story in printed newspaper (not available in this archive): Illustration/Konstantin Valov.

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