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Does Junior Salazar Deserve to Die?

His death-penalty conviction for the killing of a Joliet policeman is turning into an international incident.



The death of a police officer evokes strong feelings among members of the law enforcement community, judges included. Any tendency to bend the rules of evidence in favor of conviction, however, can and must be resisted. --Illinois Supreme Court justice William Clark, dissenting from the court's 1988 affirmation of Manuel Salazar's conviction and sentence

On the surface it's about as open-and-shut a case as you're likely to encounter. A gun-toting 18-year-old high school dropout who's wanted for aggravated battery pumps five bullets into a policeman and flees to Mexico. But justice is served. He's apprehended, returned to Illinois, tried, convicted, and sentenced to death. Today he waits in an eight-by-ten-foot cell at the state prison in Pontiac for a lethal injection, while his case creeps through the mandatory appeals process.

So stark are the facts that the story became chapter one in the 1991 book Cop Killers: From the Files of True Detective Magazine. In his stirring, somewhat imaginative account of the crime, E.E. Gilpatrick praises the "American concept of constitutional law," which, unlike that of "most governments in the world today," respects the sovereignty of other nations and the human rights of even the most brazen murderers.

Yet there's a lot beneath the surface in People of Illinois v. Manuel Salazar. When the details of the crime, the arrest, and the prosecution are subjected to scrutiny (as they are supposed to be in all death-penalty convictions), contradictions accumulate--and the case becomes almost a textbook example of what can go wrong with the "American concept of constitutional law."

The Illinois appellate defender's office is now making a final attempt to persuade the state supreme court to reverse Salazar's conviction, largely on the grounds that his trial lawyer was ineffective. It has been joined in this effort by a coalition of lawyers and community groups in the United States and Mexico. Amnesty International is mounting a major campaign to publicize the case in all its complexity. "This one cuts across the systemic problems in society," says Ashanti Chimurenga, national coordinator of death-penalty investigations for the organization. "It touches on racial discrimination, inadequate legal representation, police misconduct, and U.S. arrogance toward other nations." The public campaign, she says, will concentrate on western European nations, especially France, Germany, and England, as well as Mexico, because Amnesty believes the case illustrates U.S. disregard for international treaties. Ricardo Villalobos, president of the Coalition for Justice, a Chicago Latino advocacy organization, has been working on the Salazar case for more than a year. He contends it represents in one compact package "all the indignities Latinos are subject to in criminal prosecutions." Reverend Ben Chavis, of the "Wilmington 10" conspiracy case and now executive director of the Commission for Racial Justice of the United Church of Christ, says the church will make the Salazar issue a national priority in 1993.

In Mexico the case has already taken on a life of its own. In early December the respected Mexican daily El Norte reported that the National Commission for Human Rights of Mexico has accused five Mexican police officers of kidnapping Salazar and handing him over to American authorities who had neither obtained nor sought the right to extradite him. Extradition is an especially sensitive matter in Mexico since the highly publicized kidnapping of Dr. Humberto Alvarez Machain in connection with the torture and killing of an undercover agent for the U.S. Drug Enforcement Administration. The U.S. Supreme Court ruled in June that the federal government may kidnap people in foreign countries whenever it so wishes and bring them to the United States for prosecution, even if this action violates extradition treaties. That ruling led to a fire storm of protest in Mexico about what one newspaper called American "arrogance and bullying." Though the Alvarez Machain issue became moot in December when he was cleared of the charges against him, concern about the self-proclaimed right of the U.S. to ignore international law remains. And Salazar appears destined to represent round two.

I can't wait until we bring the justice system down on this guy. We've been waiting a long time. --Joliet police sergeant Fred Hafner, quoted in the Joliet Herald News, May 22, 1985

The furor had its origins one warm afternoon on the northeast outskirts of Joliet. The date was September 12, 1984. At about 5 PM a Joliet police car traveling along Draper Avenue passed in front of an old green Buick Electra that had just stopped on Woodruff Avenue at the intersection with Draper. The Joliet policeman in the passenger seat, Martin Murrin, 32, told his partner, Officer Thomas Ponce, to make a U-turn and "keep an eye" on the Buick. At Salazar's trial Ponce would testify that Murrin had spotted several Latino-looking youths and a black youth in the car and that Murrin regarded this as "a suspicious combination" because the police had "recurring problems with that mix in the area."

No sooner did Ponce pull around than the doors of the Buick flew open and two passengers took off running in different directions. Murrin leapt out of his car and began chasing one of the passengers through an open field and down an unpaved alley. He drew his revolver, running at top speed behind 18-year-old Manuel Salazar, who was clutching a red gym bag. The race took the two through bushes and brambles and over backyard fences. When Salazar came to a high chain-link fence he threw his bag over and attempted to climb the fence. But it buckled under his weight and he fell to the ground. Murrin was quickly on him.

What happened in the next 10 or 15 seconds has become the subject of eight years of speculation and argument. No one saw the final confrontation, but several people reported to police that they'd heard five gunshots: three in quick succession, a slight pause, and then two more. The entire shooting episode, they agreed, lasted only about four seconds.

Officer Ponce, who had driven around several blocks trying to locate the other fleeing passenger, headed in the direction of the gunfire. He later testified that from a distance he saw a Latino youth fleeing the scene. In the backyard near the crumpled fence Ponce found Murrin lying on his back. He had been shot numerous times, once through the forehead, and he was quite dead. Shaken, Ponce got in his patrol car and called headquarters. Within minutes the entire neighborhood was awash in police, evidence technicians, paramedics, county-coroner personnel, and police dogs. Murrin's gun, with five expended shells in the cylinder, was found several yards from his body. The gym bag, which was still lying on the other side of the fence, contained a loaded nine-millimeter semiautomatic pistol.

The police soon identified the owner of the green Buick as 19-year-old Johnny Garcia, who, according to police reports, admitted being at the corner of Draper and Woodruff at 5 PM with four passengers, including his brother Pauly, 12, a 16-year-old black youth named Norman Gates, Salazar, known to his family and friends as Junior, and Salazar's 17-year-old brother Jose. At the sight of the police car, Garcia told police, both Gates and Manuel Salazar had simply bolted out of the automobile. Pauly Garcia, Gates, and Jose Salazar were also questioned by police and gave similar stories. Manuel Salazar could not be found. His mother and siblings--he was the fifth oldest of eight--as well as members of his broad extended family in the Joliet area told police he had just vanished and they had no idea of his whereabouts.

Manuel Salazar was born in the United States, but his parents were born in Mexico and the family has numerous relatives there. Since Manuel had spent extended periods of time in that country, Joliet police speculated that he would head for the border and the relative safety of Mexico. An all-points bulletin with his picture and description was put out, and a nationwide search began with the assistance of the FBI and the U.S. Border Patrol. Meanwhile, Murrin, a 12-year veteran of the Joliet police force with a wife and two young children, was laid to rest with full honors, and his badge number was retired. A veteran crime technician, he had been on patrol that day to help train Ponce, a rookie.

The hunt for Murrin's killer was given wide media coverage in the Joliet area for many months. A reward of $5,000 was offered. Rumors abounded: Salazar was reported hiding in Joliet, informants claimed he was in Chicago, someone reported seeing him in Milwaukee. Then on May 19, 1985, nine months after the incident, a young man identified as Manuel "Junior" Salazar was arrested in a raid at the home of relatives near Monterrey, in the northern Mexican state of Nuevo Leon. According to the Joliet police, U.S. DEA agents learned of his whereabouts through an informant and relayed the information to Mexican police. Both Mexican and American law-enforcement agents were apparently involved in his seizure, and at least one of the Mexicans was paid a reward. News reports of the raid suggested that some of the relatives Salazar was staying with were involved in drug trafficking, but no charges were filed against them.

Caught in bed, Salazar had made no attempt to escape. He was taken to the jail in Monterrey, then quickly transported across the border to Laredo, Texas. Told by police there that extradition from Texas to Illinois was a mere formality, Salazar agreed to go home and face murder charges. He was flown to Joliet, and his return was an occasion for grim rejoicing by the police as well as top-level security precautions--it was as if a Mafia chieftain or drug lord had been apprehended. The plane was met at the Joliet airport by a van and a small fleet of cars containing police from several jurisdictions, there officially as members of the Cooperative Police Assistance Team. They were armed with automatic and semiautomatic weapons. Salazar was hustled into the van, and the whole entourage proceeded back to the Joliet jail. A few days later Joliet citizens got their first glimpse of Salazar as a prisoner. A photo in the Joliet Herald News taken at the arraignment showed a short, slightly built, handsome youth in handcuffs who looked somewhat dazed. He pleaded not guilty to the charge of murder.

The defendant became a judge and a jury who pronounced sentence on Officer Murrin. And after he did this . . . he kept running all the way to Mexico. The evidence shows a clear case of civilian brutality against a police officer. --Will County state's attorney Edward Petka during the trial

Salazar had been assigned a lawyer when he arrived in Texas, but his principal defense in the trial was handled by Michael Ettinger, a private attorney from the Chicago suburb of Oak Lawn. It has never been made clear whether Salazar's family contacted Ettinger or he contacted them. In a deposition Ettinger said he thought Salazar's relatives initially contacted him, though when asked during the postconviction hearing whether he remembered calling Salazar's relatives and telling them he would be willing to help on the case, he replied, "Could be." In any event, he was quickly hired.

During pretrial motions in the following months Ettinger argued that the trial should not take place in Joliet because of the publicity attending the case in the area. It was decided to move the proceedings to Bloomington, some 100 miles south of Joliet. The judge assigned was Patrick M. Burns from Kankakee, and the trial began in mid-November 1985 before an all-white jury.

The prosecution testimony, under the direction of Will County state's attorney Edward Petka, included a lengthy recitation of undisputed facts: Ponce and other witnesses had seen at least a part of the chase and had heard the shots; ballistics experts acknowledged that the weapon was Murrin's service revolver; medical experts said Murrin's body contained five entry wounds, at least three of which could have caused death. Special attention was given to a warrant that had been issued for the arrest of Salazar in connection with an earlier shooting; he'd been charged with firing a shotgun at another teenager in a drive-by incident in Joliet. Ettinger argued strenuously that the warrant should not be introduced because it was irrelevant and because it was based on flimsy evidence. (In fact, someone else later confessed to the shooting.) But the judge overruled him.

Petka argued that in all probability Murrin recognized Salazar as one of the passengers in the Buick, that he realized an outstanding warrant existed, that he chased the youth because of the warrant, and that he therefore would have been justified in shooting Salazar in the back as a fleeing felon. His restraint, said Petka, cost him his life.

The prosecution also tried to establish that Salazar was affiliated with a gang. The jury was shown the photo from the Herald News, in which his wrists are handcuffed in front of his body, hands open and fingers pointing down. A gang-crimes expert testified that this was a gesture with "a very deep meaning": fingers pointing down is a Latin King insult directed at the Black Disciples, whose symbol is a pitchfork pointing up.

The most damaging testimony seemed to come from Pedro Palacios, a 27-year-old man whose brother David was a friend of Salazar's. Pedro told the jury that when he arrived home on the afternoon of the shooting, David told him Salazar was in the garage and in serious trouble. When he went to the garage, Pedro testified, he didn't at first recognize the youth because his face was swollen and one eye was nearly closed. He claimed Salazar told him, "I just got done shooting a cop," and then explained that Murrin had struck him and that he had managed to pull Murrin's gun out of his holster and shoot the policeman once. According to Pedro, Salazar told him Murrin cried "Oh, my God!" whereupon Salazar fired the rest of the shots.

But Palacios's testimony began to unravel during his cross-examination. Ettinger said, "[Salazar] didn't tell you that the gun was in the officer's holster, did he?"

"He didn't tell me, no," said Palacios.

"In fact, someone suggested that to you, didn't they?"


"Was that Detective [Terrence] Mazur?"

"Yes. . . . I said when [Salazar] punched him, [Murrin] went back and reached for his gun. And Mazur said, 'Well didn't [Salazar] take it out of [Murrin's] holster?' . . . And I was all nervous. Eventually, I found myself saying--you know, he wanted to hear it from me to say--yeah, he took it out of the holster. And eventually, I found myself saying that."

"Why did you say that, Pedro?"

"Because it seemed like he wanted to hear that."

Palacios also testified that Mazur, a Joliet police sergeant, had turned the tape recorder off and on: "When I answered one question . . . he said, 'OK, hold on.' And then he turned it off and asked me again. I then answered it and he turned it back on so I could answer it again, the question."

"So this tape recorder was not continuously on, it would be stopped so he could discuss with you your answer?"


Petka retorted that the truth could be established by playing the police tape of the full interrogation. Ettinger objected that this would establish nothing since the jurors wouldn't be able to determine if the tape had been interrupted, if there were gaps, or if the tape had been otherwise manipulated. Nevertheless, Judge Burns allowed the full tape to be played. It revealed Palacios giving mostly one-word answers to explicit questions posed by the interrogator and saying that Salazar had pulled the gun from the policeman's holster. Petka urged the jury to disregard Palacios's later recantation on the witness stand and stressed that the incriminating remarks had been provided by a source presumably favorably disposed toward the accused.

It wasn't premeditated, it wasn't planned! --Defense attorney Ettinger during the trial

Salazar took the stand and told his version of the incident, a version that has remained consistent ever since. He and a friend had been target shooting in the woods earlier in the day, he said, and afterward they had sniffed paint fumes. Later he was riding with his friend Johnny Garcia and the others when the police car turned toward them. He fled, he testified, because he was carrying his gun in his gym bag and already had one charge of possessing a firearm against him. He said he was unaware that there was a warrant out for his arrest for a shooting. His futile attempt to climb the fence left him on the ground, he said, and he believed he had no choice but to give up, since Murrin was standing over him pointing a gun. Salazar said he stood up and Murrin returned his gun to its holster. He believed he was about to be handcuffed, he testified, when Murrin struck him in the eye with his fist. He fell to the ground, and Murrin (described as six feet tall and weighing about 180 pounds) put his knee in his stomach and beat him in the face "seven or eight times."

Salazar testified that he cried "I give, I give!" but the blows continued. "I couldn't take it no more," he said, so he "punched or pushed" Murrin off him. At that point, according to Salazar's testimony, Murrin said, "You little motherfucker!" and pulled his revolver out of the holster. Convinced he was about to be shot, Salazar said, he reached for the weapon "and got hold of the bottom half. . . . We struggled [for possession] and it went off and kept going off. I didn't know where he got shot. I tried to picture it and I can't."

Salazar testified that he finally stood up, the gun in his hand, Murrin lying at his feet. He said he threw the gun away and ran off in a daze. He came to a stream behind the homes on Draper, took off his shirt and pants, and began swimming. Realizing that the stream ran behind the Palacios home, he stumbled into the family's backyard, and David Palacios hid him in the garage.

Then, according to the testimony of Pedro Palacios, Pedro and David scouted the neighborhood to determine the extent of the police search and discovered the area was swarming with officers. Pedro said he understood from police conversations he overheard that a "shoot to kill" order had been given.

Salazar testified that after a series of frantic phone calls by his family and friends, a man who has never been identified agreed to drive him to the Mexican border. Salazar said he stayed in the trunk of the car until it was well out of Joliet, then was driven straight to the border at Tijuana. From there he made his way to his relatives in Monterrey, where, he said, he was treated by a doctor and where he remained in virtual seclusion until his capture.

Evidence was presented that supported Salazar's account. The pathologist had found firearm-related "soot or stippling" on Murrin's hands, which he said indicated the gun was at least partially in Murrin's grasp when it was fired. The pathologist's report also indicated that the bullets were fired at extremely close range, several within six inches of Murrin's body. In addition, the bullets entered his body at a variety of angles; one rose at a 20-degree angle, another came down at a 60-degree angle. All of which, defense attorney Ettinger declared, was consistent with what would happen during a struggle for a weapon that was firing in haphazard directions--and inconsistent with the prosecution's contention that Salazar snatched the gun and emptied it into Murrin. "Junior thought his life was over," said Ettinger during his closing statement. "He grabbed for the gun and it went off." If Salazar had intended to harm the policeman, the attorney noted, he had a loaded gun in his gym bag--yet he threw it away. What occurred, Ettinger argued, was at worst voluntary manslaughter, in which a person is in a situation where he believes he must use lethal force to save his life, though the belief is not well-founded (unlike self-defense, where the belief is well-founded).

It was impossible to assess the injuries suffered by Salazar, Ettinger pointed out, because nine months had elapsed since the killing. But he stressed that Pedro Palacios's description of Salazar's facial injuries supported Salazar's story of a vicious beating at the hands of Murrin.

Find him guilty, folks. Don't let him get away with murder! --State's attorney Petka, during his closing statement at the trial

Petka fought back. During his closing arguments he said Salazar may have been only five feet six and 145 pounds, but he had taken boxing lessons and held a white belt in tae kwan do and therefore might be more than a match for the larger but older Murrin. He reminded the jury that, according to Pedro Palacios, Salazar had not said he was beaten, only that he had just shot a policeman. "He didn't say, 'Because a cop was trying to kill me, I had no choice.'"

Furthermore, Petka noted, if Salazar had been beaten so badly and was fearful of approaching Joliet authorities, "he could have walked into any police department outside the county and had a mug shot to preserve the state of his face for all time." According to Petka, Salazar also had other alternatives: he could have contacted the FBI, the U.S. attorney's office, the Department of Justice, the state police, or another county sheriff's office. If Salazar was such a victim, Petka argued, there was no reason for him to hide or flee. At bottom, he contended, the jury had to decide between the dubious credibility of Junior Salazar and the presumption that a veteran policeman would carry out his duties in a professional manner.

But there was evidence that undercut this presumption. The pathologist's report also showed that Murrin had a blood alcohol level of 0.043 milligrams percent at the time of his death. While this was short of legal intoxication, it did indicate that he might have gone on duty that afternoon nearly drunk or that he had been drinking on duty, a serious violation of regulations. Murrin's partner Ponce testified that the two had "split a pitcher of beer" with several other Joliet policemen at a bar about noon. He said Murrin was in exceptionally good spirits because he had done well on a recent promotional exam, but he had drunk only one glass or "no more than two." Ponce said he was unaware of any other drinking before or after he and Murrin went on duty at 3 PM.

Dr. Larry Blum, the forensic pathologist who examined Murrin's body, said the effects of a 0.043 level on a person's behavior would be "negligible," but he couldn't reconcile that level with Ponce's account of his and Murrin's modest lunchtime drinking.

Ettinger asked Blum, "If I had two beers between 11:45 and 12:15, and I didn't drink any more . . . my level couldn't have been .04?"

Blum: "I wouldn't say 100 percent it couldn't be. I would say 99 plus percent of the people it would not be."

Ettinger: "If I had five beers during that period of time from 11:45 to 12:15, and then you took my blood alcohol level at 5:00 . . . then would that match out to the .04 to a reasonable degree of medical certainty?"

Blum: "I think we are in the realm of possibility."

In any event, Ettinger argued, Murrin's critical judgment would have been impaired in a crisis situation, which could explain his alleged rage toward Salazar following a long chase that had left both with scrapes and bruises.

Petka then reminded the jury that Murrin had still not been drunk or out of his senses, that he was an officer doing his duty, and that he was slain at the hands of a teenage thug. The jury, he declared, could come to only one conclusion: guilty as charged.

The jury came to that conclusion on December 6, 1985, though it took the members eight hours to reach their decision. The verdict was followed immediately by a mitigation hearing to determine whether the death penalty should be imposed. Ettinger called only a few witnesses on Salazar's behalf: a teenager he had once saved from drowning, a fundamentalist minister who visited him in prison, a former coach, several jail personnel who found him "courteous and respectful." Countering them was the presence of Murrin's widow and children in the room and the invisible but overwhelming presence of Murrin. The jury found no cause for mitigation, and the judge ordered the death penalty. Salazar was taken to the state prison at Menard and eight months later was transferred to death row at Pontiac. He has been there ever since.

The appeal of the conviction and sentence to the Illinois Supreme Court was also handled by Ettinger, whose challenge focused on the playing of the full Palacios tape (he argued that only the parts Palacios had repudiated should have been allowed in court) and the prosecution's contention that Murrin was pursuing a fleeing felon and was therefore justified in using more than the usual amount of force.

Almost three years later, in 1988, the court denied the appeal, affirming the conviction and sentence by the Bloomington jury. In a lengthy explanation the justices adopted the basic argument of the prosecution: Salazar had not surrendered to Murrin because he had "struggled" with Murrin and had "obtained" his gun; he had "fired the gun at the deceased not once but five times at very close range"; Murrin had received the beating, not the defendant--his body showed bruises and abrasions, while Salazar was left "basically unscathed"; the photos depicting Salazar allegedly making a gang putdown gesture established his proclivity for violence.

However, justices William Clark and John Stamos issued a minority view, taking vigorous exception to the ruling. The decision to play the entire Palacios tape as evidence constituted prejudice, Clark wrote, since Palacios himself had repudiated it. There was no solid evidence presented, they stated, that Murrin knew who he was chasing, or that his quarry was wanted on a warrant, or that Salazar knew of the warrant, or even that the allegations in the warrant had any justification. In his conclusion Clark suggested that sympathy for a slain policeman had affected the judgment of everyone involved, from the original police investigators to the prosecutors, trial judge, and jury to even the distinguished members of the state's highest court. "The majority decision illustrates the adage that hard cases make bad laws," he wrote. "Any tendency to bend the rules of evidence in favor of conviction . . . can and must be resisted."

Critical witnesses were not brought forward. Critical facts went uninvestigated and unreported. --Defense attorneys Karen Shields and Ronald Haze, during the postconviction hearing

A postconviction hearing took a hard look at the whole affair from beginning to end. Two new defense attorneys, Karen Shields and Ronald Haze, were appointed by the state. Working closely with Marlene Kamish, an assistant state appellate defender, they examined everything that had occurred in the judicial process up to that point. The three were appalled by what they found. First was the change of venue from Joliet to Bloomington, whose purpose had been to increase the probability of finding a jury unaffected by the intense pretrial publicity. But the population in McLean County, where Bloomington is located, was less than 1 percent Latino; Will County, which includes Joliet, was more than 4 percent Latino (and 10 percent black). The move virtually guaranteed Salazar not only an all-white jury but also one unfamiliar with police-minority problems. The situation, Kamish says, was comparable to the transfer of the trial of the Los Angeles policemen charged in the Rodney King beating to Simi Valley. Ettinger had argued for an alternative site that better reflected Joliet's population, but Judge Burns decided his protest came too late.

Second, and far more important, was the defense mounted by Ettinger. It might have appeared crisp and professional to the lay person, but Kamish, Shields, and Haze claimed in their petition to reverse Salazar's conviction that Ettinger's performance "denied Salazar the effective assistance of counsel in violation of rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution."

In their petition the attorneys listed the problems they saw with the way Ettinger had presented the case:

"Defense counsel neglected to contact a doctor who had treated Salazar after his escape to Mexico in order to substantiate the serious nature of his injuries. . . . In particular, Salazar was treated for eye injuries which affect him to this day. Medical records from Pontiac Correctional Center indicate the existence of scar tissue in Salazar's right eye."

In a lengthy deposition taken by Shields in November 1991, Ettinger was asked if he'd ever contacted anyone in Mexico about Salazar's appearance when he arrived, including the doctor Salazar said had treated him--which could have helped establish that Murrin had beaten him. Ettinger said he hadn't. He also admitted that he hadn't had a doctor check Salazar after he was brought back.

"Defense counsel failed to present the testimony of witnesses who observed Salazar shortly after the shooting who could have substantiated the serious nature of Salazar's injuries, thus lending support to his claim that Murrin used unlawful, deadly force."

Pedro Palacios had been the only witness presented who claimed to have seen Salazar immediately after the incident, and he had appeared on behalf of the prosecution, not the defense. Among those Ettinger might have called was Salazar's friend David Palacios, who had hidden him in the garage after the shooting.

Ettinger said he had hired a private investigator to help him study the evidence and select witnesses, and he'd come to Joliet for two weeks. "Do you recall his name?" Shields asked.

"No," Ettinger replied. "I'm sure it's somewhere." He said the investigator gave him no written report, and he couldn't recall making any notes about the investigator's verbal reports.

"Norman Gates, who ran from the car with Salazar . . . observed some of the fight between Salazar and Murrin; however Gates was never interviewed by defense counsel."

In his deposition Ettinger said he could not locate Gates, though he admitted he hadn't talked to Gates's family. During the subsequent postconviction hearing he added that he hadn't been anxious to have Gates testify because Gates had told police he'd been sniffing paint fumes and his testimony might therefore be considered unreliable.

Ettinger had not had an expert check the Palacios tape to determine if it had been interrupted or otherwise tampered with and had not asked to have the tape recorder on which the tapes were made produced--which could have helped determine whether Pedro Palacios's answers had been guided.

The standard instructions concerning voluntary manslaughter given to juries by Illinois judges when they explain possible verdicts had been determined unconstitutional at the time Salazar's case was being appealed, Kamish, Shields, and Haze stated, yet this "was not raised in the petition for rehearing filed by attorney Ettinger."

The Illinois Supreme Court, in People of Illinois v. Reddick, had in effect said the instructions were worded so narrowly that it would be almost impossible for a jury to decide a case was voluntary manslaughter rather than murder, even when the evidence clearly indicated that was the appropriate decision. All convictions on direct appeal were suddenly subject to retroactive reversal if this decision was brought to the attention of the court. Voluntary manslaughter had clearly been a possible verdict in the Salazar trial, and the judge had read the flawed instructions to the jury. But Ettinger didn't tell the court this.

In the deposition Ettinger was asked by Shields, "Do you know about the Reddick decision?"

"Now I do," he said.

"But at the time the appeal went in you did not know about this?"


"And you weren't aware of the decision when it was issued?"

"I read the advance sheets. I probably didn't read it. I don't know when I read it, though, whether our brief was in and--I don't know."

"Failure to adequately argue against the admissibility of . . . tape recorded statements made by Pedro Palacios as substantive evidence constitutes ineffective assistance of trial counsel."

According to an Illinois statute, such tapes can be used as courtroom evidence only if the witness is commenting on something about which he has personal knowledge. But Palacios was repeating statements Salazar allegedly made to him about how the shooting occurred, and the apparently incriminating evidence on the tape therefore amounted to hearsay. Yet Ettinger hadn't raised this argument in either the trial or the appeal.

Shields: "[This] is because you were not aware of that requirement in the statute, correct?"

Ettinger: "That's correct."

"Defense counsel did not adequately investigate evidence in mitigation, present any meaningful evidence in mitigation or rebut the state's case . . . despite the fact that an abundance of such evidence was readily available."

During the mitigation hearing immediately following the trial, the defense had presented only five witnesses, none of whom was a family member, teacher, or close friend. In his deposition Ettinger said he tried to locate witnesses only after Salazar had been found guilty, though lawyers usually line these witnesses up during the trial, well before the hearing. He also acknowledged that he hadn't sought out a mitigation expert to help him even though this was his first capital-punishment case.

But Ettinger pointed out that he had considered many people, such as Salazar's parents and close relatives, as possible witnesses, but hadn't followed through in some cases because he believed their comments, including statements they'd made to the police after the killing, might make their testimony more damaging than helpful. He stated during the postconviction hearing, for example, that he didn't call on one of Salazar's brothers because "he had a criminal case pending so we weren't going to put him on" and that another brother "gave a taped statement that . . . Manuel knew there was a warrant out for him, so I couldn't put him on."

When Kamish and her associates checked into Ettinger's background they found that much of his previous legal work had been on behalf of police officers in disciplinary hearings in Chicago and the south suburbs. They also found that before the trial Ettinger had been charged with attempting to bribe a police officer. Though the charges were later dropped, they prompted an investigation by the state's Attorney Registration and Disciplinary Committee (ARDC), which was still going on during the trial. In a separate affidavit Ettinger was asked by Shields if he had informed Salazar or his family about his work on behalf of police or his legal troubles. Ettinger replied, "No. I don't remember [the subject] ever came up." At the postconviction hearing Ettinger added that he thought there was an ARDC rule that details of a pending case against an attorney were confidential and should not be divulged to a client.

But Salazar's family was stunned to learn these facts from his new attorneys. Salazar's half-brother Oscar Silvas, who had hired Ettinger, said in an affidavit that if he had known, "I don't think I would have trusted him."

The bribery charge concerned $1,000 Ettinger allegedly offered a Blue Island policeman in 1977 on behalf of a man charged with auto theft. The man had wanted the police to accept him as an informant instead of prosecuting him and hoped the cash would work as an incentive. The telephone call during which Ettinger allegedly offered the money was taped, and he was subsequently charged with attempted bribery by the state in 1978 and with racketeering, fraud, and conspiracy by the federal government in 1982.

During his trial in 1983 in the U.S. district court in Chicago, Ettinger testified that he believed his action was legal at the time he offered the deal. His own attorney asked him, "With regard to those actions, did you think they were wrong?"

"Yes, sir," Ettinger replied. "I know it was wrong morally."

"What were your feelings at that time?"

"Well, I--I did it. I wasn't real happy about doing it, but I did it."

"And what are your feelings now relative to that?"

"Worst thing I ever did in my life."

The state charges were dropped because the wiretap was ruled illegal. He was later found not guilty of the federal charges.

Nevertheless the ARDC began a lengthy probe that ended in 1989, when Ettinger's attorney's license was suspended for two years. The probe was going on throughout the period during which he represented Salazar. Kamish, Shields, and Haze contended in their petition that Ettinger was so concerned about his personal problems that he couldn't adequately concentrate on his client. "The numerous and significant instances of ineffective assistance of counsel . . . were in part the result of pressures created by the ARDC investigation and disciplinary proceeding," they argued. "Had Salazar been informed of these matters and selected different counsel, there is reasonable probability that the outcome of his trial would have been different."

But during the postconviction hearing Ettinger would testify that he was "under absolutely no stress due to the ARDC investigation" and never even thought about it during the trial and the appeal. "I don't think I was ineffective," he declared.

The content of Manuel's art work is always human dignity and respect. --Bertha Husband, writing for the Chicago Near Northwest Arts Council

Shields, Haze, and Kamish produced more than 40 witnesses and a mountain of research for the postconviction hearing, which was held in late November and December 1991 before Will County judge Thomas W. Ewert in Joliet. They tried to fill in the holes they believed Ettinger had left.

Pedro Palacios was called, and he expanded on his earlier description of Salazar's injuries. He said there was "a dark purplish color all over his face," which was so "puffed up" he couldn't recognize Salazar until he got very close. He also repeated his contention that his responses had been manipulated when he was questioned by police. "They were asking me questions and at certain times they were turning the tape recorder off and on," he testified.

Shields asked, "What would happen when the tape recorder was turned off?"

"They would reinstate their question, and I would answer it a certain way."

"Do you remember if there was any particular question or questions that they would turn the tape off for?"

"One was when [Salazar] reached for the gun."

A forensics expert testified that he had listened to the tape and found "evidence of suspicious operation of the recorder." He had heard minute noises that were characteristic of stops and starts, but he said that without examining the machine used he couldn't be absolutely certain what had caused them. Joliet police were asked to produce the recorder but said they were unable to locate it.

Several other people who saw Salazar immediately after the incident, including David Palacios, testified that his face was battered and swollen, that he was in pain and scarcely recognizable. One said it seemed as if he had been run over by a car, another said he looked like Frankenstein.

Testimony was also provided by Norman Gates, the black youth who had also fled the car. Gates said he ran to a porch for shelter and saw from a distance a "red-faced" Murrin pursuing Salazar until the youth fell against the fence. He testified that Murrin began "swinging onto him" as he lay on the ground, but the two moved out of his sight as the struggle continued and the shots were fired. In a surprising admission, Gates said it was he who fired the shot that resulted in the earlier warrant against Salazar. Gates and others, including members of Salazar's family, denied that Salazar was involved in the earlier shooting or was aware of the warrant, contrary to statements at the trial.

Dr. Robert Kirschner, the deputy chief medical examiner of Cook County, stated in an affidavit about Murrin's blood alcohol level: "My opinion to a reasonable degree of medical certainty is that the trial testimony [about Murrin having had only a glass or two around noon] is not plausible. A blood level of .043 mg. percent would indicate that either Officer Murrin had between 6-8 beers around 12:00-12:30 pm or else he had 2-3 large beers within a one to two hour period immediately preceding his death. A level of .043 percent would indicate that Officer Murrin was under the influence of alcohol. This amount of alcohol in his blood stream would affect his behavior. It would begin to impair his judgment; it would release his inhibitions; it would slow his reflexes; and it might increase his risk-taking behavior."

Also introduced for consideration by the judge were charges of police brutality that Joliet citizens had lodged against Murrin several years before, charges Ettinger had not presented at the trial.

The defense team produced a variety of witnesses who challenged the prosecution's characterization of Salazar as a gangbanger. He had taken boxing lessons, his coach testified, but he was never serious about it and didn't even like to spar. And though he had a white belt in tae kwan do, that belt is awarded to beginning students at their first lesson. A psychologist who interviewed Salazar and his family and neighbors contended that far from being a violence-prone troublemaker, Salazar had been dedicated to his mother, brothers, and sisters. Like many young Mexican Americans, he had been taught to use handguns by his grandfather, the psychologist testified, and he had apparently confined his shooting to target practice prior to his arrest for killing Murrin.

Salazar's conduct and achievements during his seven years in prison were also described by numerous witnesses. He had turned into a gifted artist, whose oil paintings were arousing the interest of experts. Working in his cell for up to 10 or 12 hours a day without interruption and using magazine and book pictures for inspiration, he was producing a variety of landscapes, religious scenes, and portraits of Native Americans. Susan Kraut, a teacher at the School of the Art Institute, was among several art experts called to testify. She described his work as "very serious," demonstrating "great commitment and passion." She said that though he had no formal training he was a "very advanced" artist with "tremendous potential." Salazar's works have been exhibited at galleries in Mexico and in Chicago and other American cities. A rehabilitation expert who interviewed Salazar extensively and studied his prison record testified that his potential for rehabilitation was extremely high.

The prosecution responded vigorously. Will County assistant state's attorney David Shiffer (who succeeded Petka after he was elected to the Illinois House of Representatives in 1987) aggressively insisted that none of the points raised by the defense undercut the original verdict and that their accumulated weight should not make a difference.

Shiffer asked Sergeant Terrence Mazur, the Joliet policeman who had questioned Pedro Palacios, if he "started, stopped or restarted" the tape at any time when Palacios was being questioned. Mazur said he had not and added that his official report on the exact time when the tape was started and stopped corresponded precisely with the length of time Palacios was questioned.

Shiffer grilled Norman Gates, who said he'd seen Murrin attack Salazar, and exposed several inconsistencies between the report Gates gave police in 1984 and his new testimony. Shiffer said that unless Gates had "some sort of X-ray vision" he couldn't have seen Murrin from the porch where he was standing. Shiffer also argued that Gates, an admitted gang member who by this time was serving a 20-year prison term for murder, could not be considered a reliable witness. He addressed the judge: "Norman Gates, your honor, the star witness, hangs around the neck of Manuel Salazar like the albatross." Shiffer then quoted at length from "The Rime of the Ancient Mariner" and ended up by declaring that Ettinger's decision not to seek out Gates as a witness at the trial was entirely prudent.

The contention that Salazar was not a gang member was challenged by several expert police witnesses, one of whom said that one of his prison paintings, of a Native American shooting an arrow into the sky, had the telltale, anti-Disciples, fork-down symbol hidden in the clouds.

Ettinger then testified, essentially repeating what he had told Shields in his deposition, though he did add that he had excluded some witnesses because they might have been affiliated with a gang or lacked credibility. With Shiffer guiding him, he pointed out that he had spent months interviewing prospective witnesses for the trial and insisted that he had argued vigorously against the use of the Palacios tape, that he had opposed the instructions given to the jury (though on legal grounds that proved ultimately unsuccessful, not because of the supreme court ruling), that he had repeatedly fought the prosecution's contention that Salazar knew there was a warrant out for him.

In his summation Shiffer told Judge Ewert, "You can take a case and investigate it and keep investigating it until you become so remote that it becomes an exercise in seeking out the superfluous and totally disregarding the relevant information. . . . Your honor, going through the transcripts I believe the court will find that this was not a case where Mr. Ettinger just laid down and let the prosecution roll over him, but fought, your honor, at each juncture that affected his client. Fought in the area of objections, fought in the area of jury instructions."

Shiffer, citing an Illinois statute, also argued, "It is not enough for the defendant to show that errors were made. The defendant must show that there is reasonable probability that, but for counsel's unprofessional efforts, the result of the proceeding would have been different." Shields, Haze, and Kamish had not demonstrated that, he declared.

Clearly the overriding issue for the prosecution was that Officer Martin Murrin had been killed in the line of duty and there was no question about who was responsible. Even though the new defense attorneys had undercut many of the prosecution's points, that stark reality remained. In early January 1992 Judge Ewert found no reason to contradict the original sentence or reopen the case.

All the documents were then turned over to Charles Hoffman, an attorney with the state appellate defender's office, who submitted an appeal of the postconviction decision before the Illinois Supreme Court on February 5--the last state barrier between Salazar and lethal injection. His appeal will again focus on the question of Ettinger's effectiveness. If that appeal fails, Salazar can still file a habeas corpus petition in federal court to determine if any of his federal rights were violated.

By reason of him being a Mexican and having rights as a Mexican, Manuel Salazar cannot be taken out of this country without an extradition process. --Jorge Jimenez Renteria, director of the Mexican branch of Amnesty International

But just as the hearing was closing, People of Illinois v. Manuel Salazar became an international issue. Kamish learned that the Ministry of Exterior Relations, the Mexican agency responsible for all foreign extradition proceedings, had never received a request from U.S. authorities concerning Salazar. Throughout the trial and appeal, the relatively routine extradition from Texas to Illinois had been discussed in detail, but his removal from Mexico had remained vague; both the prosecution and the defense assumed the process had been handled legally. Testimony from Texas law-enforcement officers during the postconviction hearing suggested Salazar was deported from Mexico as an undesirable, but Kamish discovered he was not; as a Mexican national (being a child of Mexican-born parents), he could not be legally deported.

The death penalty is banned in Mexico, and opposition to it runs extremely high among its people. According to the current extradition treaty, Mexico may refuse to send to the United States anyone likely to face the death penalty. In the case of Dr. Alvarez Machain U.S. authorities avoided that technicality by kidnapping him. Kamish learned that the Mexican police who seized Salazar had functioned as bounty hunters and one of them was paid a $5,000 reward. Testimony from Texas officers at the trial indicated the arresting officers may have been accompanied by American lawmen, whom the officers presumed were members of the U.S. DEA.

On the last day of the postconviction hearing Shields offered up the possibility of this new defense, telling Judge Ewert, "We need to be able to research constitutional violation based on Mr. Salazar being a U.S. citizen and the U.S. going into Mexico and bringing him out illegally." But Ewert responded, "Well, I don't know if that is the case, and if it were the case I am not sure what effect that would have on anything that has transpired in this court. . . . I find any argument along these lines not to be timely raised at this time."

Before the hearing ended Kamish had begun working with Ricardo Villalobos, former director of leadership development for the Mexican American Legal Defense Fund and now head of the Coalition for Justice, which was created to campaign for police and court reform. He viewed the Salazar case as an example of how truth gets mangled when minority interests are involved.

Villalobos and Kamish, who left the appellate defender's office early in 1992 to go into private practice, intend to pursue the case as far as they can. If the current appeal fails, they hope to pressure someone at the state or federal level to take up the case on the grounds that international law was broken (Hoffman has not made this issue part of his appeal). They also plan to raise the issue with Congress and the president.

The two have done extensive investigative work in Mexico, contacting high officials, including the president and attorney general. Their efforts paid off when the Mexican Commission for Human Rights, at the request of the governor of Nuevo Leon, held a formal investigation. On December 9, 1992, the commission accused five police officers, including a former director of the federal police, of being Salazar's kidnappers. The commission is expected to pursue the matter to determine how high up in the Mexican government responsibility goes.

Some 20 major organizations--including the Mexican Association for the United Nations, the Mexican National Association of Democratic Lawyers, and the Mexican branch of Amnesty International--and several prominent human-rights advocates are now insisting that Salazar be returned to Mexico as a sign that the nation's judicial processes will be respected in the future. In early January 100 individuals and human-rights organizations asked permission to file a friend-of-the-court brief in support of Salazar but were refused by the Illinois Supreme Court. According to the Mexican press, popular feeling on the issue is so intense that some political leaders are urging that the North American Free Trade Agreement be rejected unless the American government recants its disrespect for Mexico's judicial process. One paper recently featured a cartoon captioned "American systems of justice," showing a noose, an electric chair, a guillotine, and a hypodermic needle. The newspaper El Norte featured a front-page interview with Salazar's uncle, who owns the house where Salazar was seized in 1985; he claimed the people who took his nephew arrived in unmarked cars, had no uniforms, produced no warrant, and did not identify themselves as police. But they were armed to the teeth, the uncle said, and there was nothing he could do.

In an attempt to concentrate on this and similar cases, Kamish and Villalobos have formed a partnership called For the Defense, which has a small office on 18th Street near Ashland. "What is needed in some situations," said Villalobos, "is more than a good lawyer. We need new strategies, which means increasing public awareness of the dimensions of a case and promoting public response. In the Latino community we have this whole pattern of discriminatory conduct, beginning with arbitrary stops and searches of young people. But this is something people are reluctant to get involved in--it's not a popular topic."

Kamish, who directed an alternative school before becoming a lawyer, says she is "horrified" by the blatant disregard for individual rights and the dismissal of relevant evidence in the Salazar case. "I know this man. I have no doubt that he is telling the truth. I know his family. I have been to Mexico and visited his relatives. They are lovely, wonderful people. I deeply resent the vicious, duplistic intent I see in this case."

Michael Ettinger himself expresses sympathy with the effort to reopen the case--even at his expense. "Justice has to be done here," he says, "and justice is not Junior Salazar sitting on death row. He should get a new trial."

He believes several factors led to the conviction: the introduction of the prior warrant against Salazar at the trial, the fact that Murrin was shot five times and Salazar not once, and above all the shift of the trial to Bloomington. "If we could have tried that case at 26th Street [the Cook County criminal courts], where people understand the potential for police abuse, I'm convinced we would have gotten manslaughter at worst."

He insists, "I did my best--I gave it everything I had." But he adds that he fully understands that Kamish and the appellate defender's office are challenging his competence as a way to get the case reviewed. "I want the case opened too," he says. "And I believe Junior will ultimately get the relief he deserves."

One hundred miles from Chicago Salazar, now 25, sips a Coke in the visiting room of the "condemned unit" at the Pontiac prison. He speaks easily--with neither bitterness nor contrition--about his experiences. His explanation of the shooting is identical to the account he gave after his arrest and at the trial: he thought Murrin meant to shoot him, he grabbed for the gun, in the struggle it went off again and again. He can't explain how only Murrin was hit. "It happened so fast," he says. "I only remember the noise. I can't put the whole scene together."

He seems to have adjusted well to prison life, even life on death row. Believing he has to keep himself in good physical condition, he lifts weights during the hour a day he is allowed out of his small cell and doesn't smoke. He seems popular among his fellow inmates, with whom he exchanges friendly banter in the visiting room.

He sees his situation largely in religious terms and speaks with the fervor of a fundamentalist missionary. "God doesn't cause evil," he says. "He allows evil that good may come." He thinks Murrin's life was "a kind of sacrifice that has allowed me to better my life. . . . I think about my old friends. The majority are dead, killed by cops or killed by each other. I think maybe God saw my life and took it to a higher plane."

He's proud of his ability to paint and of the public reaction to his work. "Outside I'd probably be dead now, but here my talent as a painter has been allowed to bloom like a flower." And he appears grateful for the extraordinary efforts of others on his behalf. "The truth is coming out at last. You see what I mean: good coming out of evil." He pauses for a moment and his buoyant expression fades a little. "There's still so much evil in the world. I hope God softens the hearts of my adversaries. I hope I am not put to the test."

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