Nearly 18 years ago, when she was 13, JoAnn "Holly" McGuire Campbell was at a party where three people were shot and killed and a fourth was wounded. She identified 15-year-old Jason Gray as the shooter, and her testimony was key to his conviction.
"I figured all I would have to do is testify once," said Holly last November. "I thought Jason would have an appeal, and when that was shot down that would be it."
But Gray and his attorneys attacked Holly's account of events at the trial, and they've kept attacking it as the case has been appealed, raising questions about the reliability of her--of any--eyewitness testimony.
Holly has taken the stand five times now, and last year in court she seemed unsure of what she'd seen. Back in court this past spring she insisted she had no doubt that Gray was the shooter.
In March the judge granted Gray a new trial, and if the prosecutors' appeal fails, Holly might well be back on the stand. If so, it's likely the case will again turn on whether the jury believes she saw what she says she saw.
On Friday night, November 7, 1986, a teenager named Christine Bodencak threw a party for her boyfriend in the basement of her family's small house on the 6300 block of South Washtenaw. By midnight 40 or more kids--including members of two neighborhood street gangs that were then loosely allied, the Ambrose gang and the Two Twos--were packed into the basement. At one end of the room a DJ spun records and sprayed the crowd with colored disco lights. A keg was in the sink, and lots of kids were drinking.
At around 12:30 AM someone knocked on the door to the backyard, and Jesse Villagomez, who was standing just inside, unlocked and opened it. Three or four people were outside, and one of them fired a .380-millimeter automatic pistol into the crowd.
"I saw the guy next to me with blood coming out his neck," says Kenny Carmona, who was in the middle of the room. "With another guy, there was blood running from his chest."
Joanne Lewis, an adult who'd been visiting with the older Bodencaks upstairs but had gone downstairs to listen to the music, would later testify that she saw three bodies on the floor. She ripped open the shirt of 16-year-old Michael Villasenor, who had a bullet hole in the left side of his chest. "I tried to put my hand in there," she told the court, "and the blood started squirting through my fingers. So I started giving him mouth to mouth, and his eyes rolled back in his head, and saliva came out of his mouth. He gave one big 'Ugh,' and that was it." Lewis closed his eyes and laid a leather jacket over his head.
Holly McGuire, an eighth grader, had come to the party because she lived next door and was best friends with Christine Bodencak's younger sister Renee. She would testify that she was eight to ten feet from the back door, heading toward it as she threw away cups, when she heard the knock and saw flashes of gunfire. She said she saw Jason Gray--whom she knew because they'd gone to the same school and because he'd once dated Christine--gripping a gun. She ducked down, and when she stood back up she saw three bodies lying on the floor.
Carmona says he helped an injured boy get upstairs and lie down in a bedroom. Someone opened the boy's coat, and Carmona recalls seeing blood soaking his belly. He guesses the boy was 16-year-old Jose Mendez, the only victim to survive the attack--a bullet narrowly missed his heart. Villasenor, 16-year-old Joseph Torres, and 20-year-old Mario Martinez all died. During the trial Villasenor and Martinez were identified as members of the Two Twos--rivals of the gang Gray belonged to, the Two-Sixers.
Holly and other partygoers were taken to Area Three headquarters. According to a police report, one girl had supposedly seen Gray and a friend racing from the scene, but when police questioned her she said she'd only heard it was Gray. Sometime after Holly arrived she was shown some photos, including one of the blond-haired Gray, and she would later testify that she heard his name spoken by "a lot of people." According to a police report, when she was questioned by two officers she said the people in the doorway all had guns. She gave the police two nicknames, "Inky" and "Little Hawk," but didn't name Gray. "I was scared of someone finding out that I told," she would later testify. But after talking with Renee, she pinpointed Gray as the shooter, and she picked him out of a lineup of ten guys, the only white among nine Hispanics.
Gray was born in Saint Louis to Nellie LaGrand and Van Gray, a truck driver who was married to someone else. "This was one of those deals when my wife and I were having problems, and I was out running around," says Van, who lost contact with his son after LaGrand moved to Chicago when Jason was still young. LaGrand, who survived on public assistance and babysitting money, had ten children by three different fathers, and Gray was the third youngest.
The family kept moving, so Gray attended several elementary schools on the south side. The last was Marquette School, at 65th and Richmond, which is where Holly McGuire first saw him. He was two years ahead of her. "I got kicked out of Marquette in eighth grade," said Gray, interviewed at Stateville prison last October. "I had a fight before lunch, and after lunch I got in a fight with the same guy again. He made it to the police before I did." Gray was transferred to Montefiore, a school for boys with discipline problems. He went on to an alternative high school in the Loop, but he attended classes a couple of hours a day at most. He lived in Pilsen with his mother and some of his siblings. "Pilsen was a rough neighborhood in the 80s," he says, "and I was a product of my environment."
Gray says he sold drugs from the time he was ten. The Two-Sixers nicknamed him "Ace." By his own count, he was arrested 21 times, for, among other things, disorderly conduct and selling drugs. When he was 13 a juvenile judge put him in a short rehab program for selling acid, and he did 21 days in the Audy Home, a juvenile detention center, on another drug charge. He had a fierce temper. According to a police report, after he was arrested in 1984 for criminal damage to property and threatened with prosecution "he became very upset and started swearing and yelling something to the effect that the next time he'd break all the windows."
In May 1985 he and a friend were arrested after shots were fired at a party in Pilsen. A year later he was arrested for firing six times at another kid on the south side. But charges were never filed in either case.
Joe Russo, who was a few years older than Gray, found him jobs such as cutting grass and spreading gravel. At the time of the Washtenaw murders Gray was sleeping on the couch in the apartment of Russo's girlfriend, Yvonne Burgos. "Jason's mother didn't have any money and didn't take care of him," says Russo. "We fed him, clothed him, and treated him like our own kid." In return, Gray cleaned up around the place and washed Russo's car. Gray was at Burgos's apartment when the police came looking for him on November 8, 1986, the day after Bodencak's party.
Detectives at Area Three questioned Gray soon after he arrived. At first he said he'd been at Burgos's apartment all night, partying and then babysitting the son of her roommate, and he insisted he'd never left. But then Holly McGuire picked him out of the lineup.
Just after midnight on November 9 a detective named Michael Kill began questioning Gray. Kill would later testify that he read Gray his Miranda rights and asked whether he owned a nine-millimeter automatic handgun. He testified that Gray said no, that he had a .380-millimeter gun--the same as the murder weapon, which has never been found. "I asked him if he was over at the party where the shooting occurred," Kill testified. "He said he was at the party, but he didn't have anything to do with the shooting." Defense lawyers would later point out that in a written summary Kill recalled Gray saying he was "by" the party, not "at" it.
Gray was then interviewed by another detective and an assistant state's attorney. The statement he signed at 2 AM says he'd lied about being at Burgos's house "because he knew the police were looking for him for the shooting that took place and he did not want to have anything to do with it." He now says, "My experience is that if you are in the area of something happening you don't even mention it. If you say a sentence, the cops make a paragraph out of it."
According to the statement, at 10:30 PM a friend of Gray's drove Yvonne Burgos to work. An hour later the friend returned, then drove around with Gray in Burgos's car, dropping off and picking up friends. Gray said they drove past the house on Washtenaw, where he saw "a bunch of people," some of whom he recognized "as being from the Ambrose street gang." But he said they kept driving and didn't stop.
Gray would later testify that he hadn't been read his rights and that Kill had roughed him up, even though his signed statement says he was "treated well" by the police and the state's attorney and that he was "not threatened or made any promises." He would also insist that he never told Kill he owned a .380 automatic.
But the evidence against Gray was mounting. Other kids put him at or near the murder scene. Jesse Alvarez, a member of the Two Twos, picked Gray and Manuel Bobe--a 15-year-old who was, like Gray, a member of the Two-Sixers--out of a lineup as two of the people in the doorway, and he identified Gray as the shooter. Bobe, who'd told police he was standing in the backyard of the Washtenaw house, also fingered Gray. The police report states, "Bobe saw a white male known to him as Jason Gray and three other males standing at the back basement door. All had guns and Bobe saw Jason firing into the basement."
Gray and Bobe were charged with three counts of murder and one of attempted murder. Both were taken to the Audy Home. Gray, who says he didn't know Bobe, remembers asking him about the statement he'd made. He says Bobe muttered, "I'm scared."
The murders caused only a brief stir in the press. They seemed like typical gang-related shootings in a year with 20 other multiple homicides.
Because their crimes were so serious, Gray and Bobe were tried as adults. In early 1988 their cases landed in the courtroom of Judge Fred Suria Jr., at 26th and California. Suria separated the cases because Bobe had implicated Gray, and if he were a codefendant he couldn't appear as a witness against Gray.
In June 1988 Gray's public defenders, Bernard Sarley and Andrea Lyon, tried to persuade Suria to throw out Holly's identification of Gray, saying she couldn't have seen what she said she had. But in her first court appearance Holly, then 15, stood firm, saying that when the basement door opened she saw the face of Jason Gray and saw both of his hands holding a gun. "I was frightened," she told the court, "but I know what I was talking about." Suria ruled that her identification could be introduced at trial, and he praised her for her forthrightness.
Gray's jury trial began on August 8. Holly was the first witness. "She was absolutely crucial to our case," says Anthony Calabrese, one of the prosecutors. "She was this skinny little kid, smart and yet guileless. She was sweet and kind of heart and seemed untouched by the neighborhood she lived in."
Lyon still remembers being struck by Holly's innocent appearance. "If she wasn't dressed in a pinafore, she was close," she says.
Holly testified that she'd been drinking only Pepsi, that she was eight to ten feet away from the basement door when Villagomez opened it, and that a fluorescent light over the dryer let her make out Gray's face in the doorway. She said she was looking at him for 12 seconds as he fired and afterward as she ducked to the floor. She cried briefly.
Her story had changed a little since June. Then she'd said Gray held the gun with both hands extended. Now she said it was in his right hand, his left hand clasped around his wrist as support. In June she'd also said she looked at Gray before and as he fired, not after.
"She pointed at Jason with her finger, and she did it a lot of times," says Lyon. "There was no obvious reason for her to lie."
The next witnesses provided a motive for the murders. Sam Rehder, a Two Twos member, testified that he, Jesse Alvarez, and other friends had stopped at a 7-Eleven earlier in the evening and seen Gray and "a Mexican kid"--Calabrese believes it was Bobe--beating up two other kids. He said that later Gray, the Mexican kid, and another Hispanic teen were riding in a green Cadillac and pulled up beside Rehder's car. The kids in the Cadillac flashed gang signs and threw bottles at Rehder and his friends. Rehder said that a chase ensued but that when the Cadillac blocked a street that was Two-Sixer turf he and his friends drove off. They ended up at Christine Bodencak's party.
Calabrese says that he and the other prosecutor, Edward Snow, didn't see any reason to put Alvarez on the stand even though he said he'd seen Gray in the door. "I was confident in Holly McGuire," says Calabrese. "She was credible and didn't have any gang affiliation. Alvarez was a rival gang member to Jason--he had a motive to testify against him. I wanted to keep it simple."
Moreover, Calabrese and Snow hadn't been able to find any other credible witnesses who wanted to testify. "There is no question that others must have seen what happened, but there was no one willing to tell the police and be a witness," says Calabrese. "They had seen three friends killed before their eyes and another wounded. If that doesn't intimidate you, what will?"
He and Snow did call Sylvia Onoroto, who testified that around 7 or 7:30 she was standing by a window at the Bodencak house, checking to make sure her mother was driving off, when she saw a green Cadillac pass in front of the house and slowly circle back around four times. They also called Michael Kill, who described his interview with Gray but conceded that he hadn't written his report until at least a year afterward. And they called a sergeant from the police crime lab, who said the five bullets the police recovered were all from the same gun, a .380 automatic.
The defense first put on Jose Mendez, the boy who'd been shot and survived. He testified that before he'd gone into the basement he'd seen four Latinos--but no white kid--lurking in the gangway. Joanne Lewis testified that all she'd seen when the door opened was "a real flashing."
The defense attorneys also called Jesse Villagomez, who'd told them he opened the door only a crack, making it impossible for people in the basement to identify the shooter. But when the prosecutor questioned Villagomez, a member of the Ambrose gang, he acknowledged that his cousin's girlfriend was Gray's sister, and he suggested the killings were an attack by the Two-Sixers, Gray's gang, against the rival Two Twos. He stated that before the shootings some girls wearing Two-Sixers' colors, black and tan, had wanted to come into the party, implying that they might have been scouts, and he said that he'd run into Gray outside the Bodencaks' house shortly before the shootings. He left the impression that he'd been part of a setup.
"Villagomez had the look of a dog when it poops on the carpet and you catch him," says Lyon. "I knew he was lying, but he hurt us bad." She tried to recover, but the best she managed was to get him to say that he and Gray weren't friends.
As the trial proceeded, Gray impressed his defenders. "He kept to himself, and he was so polite," says Erin Farrell, a clerk for Lyon who was attending law school at night. "The sheriff's deputy in the courtroom just loved him, because back in the lockup he would defuse the situation when other inmates got out of hand."
Gray had the right not to testify, but Lyon and Sarley thought that would be a mistake. "Jurors are told to disregard silence by a defendant, but if you don't speak, the burden of proof shifts," says Lyon. "The jurors wonder if you have something to hide." She adds, "We believed him, and if he was persuasive with us he might be with the jurors."
Wearing a white shirt, black tie, and black pants on the stand, Gray immediately denied that he'd shot anybody. He said he hadn't owned a gun at the time of the murders and wasn't at the party on Washtenaw, though he had driven down the street. He said he hadn't been to a 7-Eleven that night, hadn't cruised around in a green Cadillac, and didn't know anyone named Sam Rehder. He said he knew Villagomez, but there was no plan to plant him inside the party or to send Two-Sixers girls as scouts. He insisted he was at Burgos's apartment watching movies and babysitting at the time of the murders.
"Hearing Jason on the stand, my heart sank," says Farrell. "He spoke in this deep voice that made him appear like a thug. He just wasn't coming across as credible."
Gray also testified that when Kill came in to question him he was handcuffed by his left arm to a chair. After five or ten minutes, he said, Kill grabbed him and threw him to the floor twice, then left the room. He said Kill returned, and Gray then told him about having driven past the party.
Later Kill was called back to the stand, and he denied abusing Gray. After the trial Kill would go to work for commander Jon Burge at Area Two headquarters, and he would be accused of beating a murder confession out of Ronald Kitchen in 1988. He would also be among the officers accused of using electric shock to get 13-year-old Marcus Wiggins to confess to murder, a case the city later settled. (Now retired from the police force, Kill didn't respond to requests to be interviewed for this story.)
Next to testify was the mother of the boy Gray said he'd been babysitting, Darlene Subasik. She said he was watching TV in the apartment when she got home at 12:30 or 12:45 AM, though that could still have given him enough time to commit the murders and then race the 13 blocks back to the apartment.
In his closing argument on August 11 Snow said Gray "hit Michael Villasenor in the heart. He hit Jose Mendez within a half inch of the heart. He hit Mario Martinez in the back of the head. Every shot deliberate. Every shot well placed. It takes some time to aim that well in what is supposed to be a teen party and kill three male Latinos and shoot one. And consider that none of the females was shot. The only people shot were the young men."
He focused attention on Holly: "Consider what she saw him do. And consider when she testified Monday, which may seem a long time ago, but should stick in your minds for the rest of your lives. Consider how she cried on the stand. 'I was afraid he was going to find out,' she said. Her demeanor alone tells you that that man sitting there, that man holding his gang tattoos in such a fashion to hide their maniac lines, that man killed three young men."
"The prosecution's attempt to manipulate the evidence in hopes of convicting this innocent young man is outrageous," said Bernard Sarley in his closing statement. "It is an outrage. It's immoral, offensive, and it's downright shameful." He denounced Holly for changing her story about how Gray had held his gun and about whether she'd seen him before he fired. "She may look like a nice girl, but how can you trust her?" he asked. "How can you believe anything else that she said on that witness stand when she raised her hand and swore to God to tell the truth?"
It took the jury only five hours to return with a verdict of guilty on all counts. "Once they read the first verdict," Gray says, "I knew what to expect." His mother screamed, and Yvonne Burgos collapsed in her seat. Jurors told the prosecutors they appreciated Holly's willingness to be truthful.
Erin Farrell immediately started trying to pick apart Holly's story. She says, "I did nothing else but track down people who knew her, who she might have talked to, or who had been at the party."
In September 1988, less than two months after the trial, the defense filed a motion for a new trial that centered on what two friends of Holly's had told Farrell. Roxanne Olvera had told Holly she'd heard a rumor that she was going to testify against Gray. "I told her I knew he didn't do it, and I have heard he didn't do it," Olvera told the court. "She told me she's not sure he did it either, but she's still going to stick with what she's been doing." Beverly Kiedys testified that in a conversation several months earlier Holly had kept changing her story, saying that she was out on the porch when the shootings occurred, or that she was upstairs and had lied in court, or that she had indeed seen Gray in the doorway.
Holly, back on the stand, denied that she'd ever been uncertain.
Judge Suria cautioned her that her testimony had ensured that Gray would never get out of prison unless an appeals court intervened, then asked, "Are there any answers that you would like to change to questions by either the state or the defense that you have made here today?"
"No," she replied.
"Are you still positive that you saw Jason Gray with a gun fire those shots?"
"Yes," she said.
At the time Judge Suria was 61 years old. He'd earned his law degree while working as the night manager of a Beverly hamburger stand and as an insurance claims adjuster. He became a private lawyer specializing in trusts and real estate, was elected a judge in Midlothian in 1962, became an associate circuit court judge two years later, and was assigned to 26th and California in 1972. Famous defendants have come before him: he gave 60s radical and Weatherman Bernardine Dohrn probation and presided over the sexual misconduct trial of U.S. representative Mel Reynolds. Courthouse lawyers call him "Fair Fred" for his evenhandedness.
A courteous, formal man with thinning hair and a benign smile, Suria says he's always had a sense of mission. "As we treat the least among us, so we decide how our society will go," he says. "I enjoy the challenge of my job, but not what I see." He believes the public needs to take far more seriously the rampant criminality he sees in his courtroom every day, and at sentencings he likes to deliver what one observer calls "Fred's 'Wake Up, America' speech."
That October Suria stunned both the defense and the prosecution by ordering a new trial based on what Farrell had unearthed. "In all the jury trials I've ever argued, that's never happened," says Sarley, who's been a public defender for 25 years.
Calabrese and Snow pleaded with Suria to reconsider, loading him up with rulings from appellate judges who'd turned down new trials when the testimony of a single witness at the heart of a case was tainted. "Judge, the truth of the matter is, Jason Gray is a triple murderer," Snow told Suria. "It's not only Holly McGuire saying that Jason Gray is a murderer, but there are 12 jurors who signed their names to a verdict form as well."
A month later Suria announced that he was reversing himself. Sarley was dumbfounded again.
"I was satisfied that I misapplied the law as I understood it," Suria said in court, offering no further explanation. ("Case law told me that recantations are suspect and should not be readily considered," he now says.)
Before Suria sentenced Gray that afternoon he listened to two character witnesses, a social worker and a school psychologist, as they praised Gray's intelligence and behavior. He commented that Gray was someone "who apparently does have great potential" and spoke of children giving birth to children and of a country that refused to spend money on education. Then he said, "November 8 was a momentous day for many people. And unfortunately, the victims--the three that are involved--are not the only victims. It is all their families and loved ones and their friends. It is all of their neighbors who live in fear because we have idiot gangs like that which, in fact, take over the neighborhoods, who, in fact, so scare the rest of the population that they're unwilling to come forward and testify against them."
Suria praised Holly for her testimony. "In reviewing all of the evidence, what can we say about the courage of one to come forward and to testify in a case of this nature and say, yes, that's the one who did it?" he said. "There is no reason, no cause, no interest, no bias, no prejudice [that] has [been] shown as to why anyone could say that JoAnn McGuire was, in fact, lying about the identification and her testimony."
Suria said the crimes had been "a cold-blooded execution" and said November 8 was "another day of infamy in humankind--three lives taken for naught." He turned to Gray. "Jason Gray, I do regret having to sentence you. By the same token, I would have no hesitancy, if you were an adult, to sentence you to the death penalty today if it were in my power. It is not within my power." Under state sentencing guidelines his only option was to give Gray life in prison without parole.
Anthony Calabrese--who became chief deputy state's attorney, left the office in 1993, and is now a defense lawyer in a private practice--has never doubted that Holly told the truth. "Holly was a good kid who believed she should do the right thing," he says, "and that took a lot of guts." She would later testify that she was both threatened and offered money to change her testimony.
But Andrea Lyon, now a law professor at DePaul, still wonders how accurate an identification by a 13-year-old girl who witnessed a traumatic event can be. She points to the work of Elizabeth Loftus, a psychology professor at the University of California-Irvine and an expert on eyewitness testimony.
Loftus says that in deciding how trustworthy a witness's account is, one has to weigh factors such as whether violence was involved, how quickly the crime happened, how much the witness saw, and what kind of stress the witness was under. "In her stress and fright," she says, "this girl you're talking about might remember she witnessed a shooting, but be less sure about some of the details." She says witnesses are often riveted by the weapon used and have difficulty remembering other particulars, such as the person's face.
Holly was undoubtedly under stress at the time. Her father, a senior transportation planner at R.R. Donnelley & Sons, had died two years earlier of a heart attack. She was living with her mother and 15 brothers, sisters, and stepsiblings, and her mother didn't want her to testify. "She was scared for my life," says Holly. By the time of the trial her mother had died.
Ebbe Ebbesen, a psychology professor at the University of California-San Diego, disagrees with Loftus, saying people under pressure often focus on details quite accurately. One theory as to why this happens, he says, "supposes that the stress you're under acts like a spotlight, sharpening your memory while also narrowing it. Maybe if this little girl was looking at the culprit her memory of him was great."
Loftus writes in her book Eyewitness Testimony that witnesses' recollections can also change: "The witness may engage in conversations about the event, or overhear conversations, or read a newspaper story--all these bring power and unexpected changes in the witness' memory."
Ebbesen agrees that suggestion can influence a witness's memory but says, "That doesn't mean it happens."
Before Gray's trial Judge Suria had thrown out Holly's lineup identification as evidence, saying the composition of the panel--nine Hispanics and one white--was biased. "The lineup was a mistake," admits Calabrese.
Erin Farrell, now an assistant public defender, thinks that gang members allied with the real killer might have leaned on Holly to select Gray out of the lineup "because the cops were looking for four Hispanic guys, and so a white guy, like Jason, would never get charged or convicted." Lyon wonders if Holly picked out Gray because "she was looking for the person the most like someone she remembered, and there he stood--the only white, so he stuck out. And she knew him from Marquette School."
In her book Loftus calls this "unconscious transference, the phenomenon that a person seen in one situation is confused with or recalled as a person seen in a second situation." But she cautions that this happens when you've had only "some exposure" to a person, not when you know the person well.
"Yet Holly did know Gray rather well," says Calabrese. "She was not so much identifying him as recognizing him, because she knew him from the neighborhood. She'd gone to school with him, and her neighbor had dated him. People try to give the impression that she was influenced, but she knew the guy. He was no stranger."
Lyon thinks Holly might have had doubts about the story she told, but other people's impressions persuaded her to stick to it. Lyon says this often happens: "You see the defendant in court, you see stuff on the news, and if you were unsure before, you aren't now." Farrell wonders if Calabrese, who's charming, unwittingly encouraged the young girl to believe in her story, but Calabrese points out that he didn't start working on the case until three weeks before the trial.
Nellie LaGrand, Gray's mother, thinks Holly testified as a way to gain attention. "Her life wasn't perfect, and the girl was looking for something to say she belonged," she says. "This was her chance to come into the light, and she took it."
Loftus first came to prominence three decades ago when she argued that juries find eyewitness testimony more credible than they should. She'd done an experiment in which she divided panels of college students into three groups. Each group heard evidence about a crime in which a man had stolen $110 from a grocery store, then killed the owner and his five-year-old grandson. The prosecution told the first panel that $123 had been found in the defendant's room, that traces of ammonia of the type used at the grocery were discovered there as well, and that tests revealed a "slight possibility" that the defendant had fired a gun the same day. The defense argued that the $123 represented the defendant's savings over a two-month period, that he'd come in contact with ammonia while working as a deliveryman, and that he'd never fired a gun. Only 18 percent of the first panel said they thought the defendant was guilty. In addition to this information, the second panel heard from a store clerk who'd allegedly witnessed the shooting and identified the defendant; this time 72 percent thought the accused was guilty. The third panel also heard the defense argue that the store clerk had lousy vision and wasn't wearing his glasses when the robbery occurred; 68 percent still found the defendant guilty. "This result," wrote Loftus, "suggests that jurors give eyewitness testimony much more weight than other sorts of evidence when they reach a verdict."
Ebbesen scoffs at Loftus's conclusion, saying, "An experiment doesn't explain what goes on in real life, where things are complex and many variables are acting simultaneously." Ronald Allen, a criminal-law professor at Northwestern University, agrees. "Loftus's studies are with mock juries," he says, "so there's a problem of squaring those situations with reality." But Loftus insists that an eyewitness account such as Holly's can have a huge impact on real juries, "especially if it's delivered in a sure and detailed manner."
Loftus isn't the only one attacking eyewitness testimony. According to a study by the Innocence Project, a New York nonprofit headed by law professors Peter Neufeld and Barry Scheck (famous for their defense of O.J. Simpson), in 147 criminal cases where DNA evidence was used successfully to exonerate defendants, 78 percent of the original convictions rested in part on faulty statements by eyewitnesses. In a study by Northwestern University's Center on Wrongful Convictions, of 86 people sentenced to death nationwide but later released, eyewitness testimony had been a factor in roughly half the convictions--and was the only evidence in 40 percent. (The center defined an eyewitness as someone who observed a key factor in a crime, if not the crime itself.)
Yet even Loftus admits that an eyewitness account can be accurate. "You must analyze the circumstances," she says. Ronald Allen points out, "There is no way to reduce eyewitness testimony to a set of rules. A 13-year-old could put forward rock-solid information about which you'd have no doubts. The kid just has the fearlessness to come forward, period. But maybe another 13-year-old could be pressured to finger somebody or is seeking a sense of worth by testifying. This is the mystery of the law and of the human drama, and it's the challenge of the courts to figure it all out."
Gray went to prison on November 21, 1988. A month later Jesse Villagomez, who'd opened the basement door, gave Judge Suria an affidavit that said prosecutors had summoned him to their office the day the trial was to start and pressured him to change his testimony to tie Gray to the murders. "It was and is my impression that the State's Attorneys were threatening to charge me with some crime," he stated in the affidavit. "I did not see Jason Gray at the party, near the party or near in time to the shooting."
The public defender's office asked for a hearing to determine whether Gray should be given a new trial, but Judge Suria denied the request. The public defender's office filed an appeal, which was combined with a second appeal alleging that Lyon and Sarley had ineffectively represented Gray at trial by, among other things, failing to call Jesse Alvarez as a witness and waiting too long to ask that Michael Kill's testimony be excluded. In May 1993 the Illinois Appellate Court denied the ineffective-representation appeal but granted Gray a hearing on the basis of Villagomez's affidavit.
By then Villagomez had disappeared. In early 1996 an assistant state's attorney and an investigator tracked him down and interviewed him about the affidavit. According to a memo written by the investigator, Villagomez said "his trial testimony was true and that he was pressured into writing the affidavit by a leader of the [Two-Sixers] street gang. He further stated that after the trial, his girlfriend was shot in the stomach and they fled to Texas as a result. He believed the shooting was related to his testimony in the trial."
But when Villagomez testified at a hearing in June 1998 he repeated the accusations of his affidavit, saying prosecutors had implied that if he didn't swing their way they might "put me in the case," meaning charge him too. Asked why he'd lied about Gray at the trial, he answered, "I was young and naive, I guess."
Edward Snow countered that he and other prosecutors had spoken with Villagomez for just five minutes on the day Gray's trial started and that Villagomez had told them he'd seen Gray before the murders, though he hadn't gone into detail.
In his ruling Suria called Villagomez "untruthful, unworthy of trust in any way, shape, or form throughout this entire trial, which is one of the reasons he was not called in the state's case as their own witness." He said prosecutors hadn't tried to pressure Villagomez to perjure himself, and he said Gray's conviction stood.
By this time Gray had been in prison for nearly a decade. "When you come to prison you can't act like you're 17, which is how old I was," he says. "You better act like you're 30 and tough. You mind your business and shut your mouth." He took a job doing data entry, got his GED, and took classes in criminology and biology. He also tried to get various appeals attorneys to take his case pro bono.
In 2000 Jennifer Bonjean, a state appellate defender, got a letter from Gray, written in his distinctive flowery script. "I get a lot of letters, but I write everyone back," she says. "You could see that Jason felt abandoned, and I told him I'd communicate with his present lawyer, which I did. Jason kept writing me, a letter every week, imploring me to take him on. He seemed to understand all the intricacies of the case, and finally I went to my boss and got permission to represent him, so long as I did it on my own time." She read the entire case record, met Gray, then started tracking down old witnesses, including Holly.
Holly was working as a bartender. She'd married, then separated, and was raising a son alone, and she suffered from lupus and scleroderma, a debilitating skin disease. She says the case had never stopped following her. During Gray's trial, "I started feeling everything. I didn't want to go to school. I worried about the trial and whether somebody was going to come after me. This has affected me mentally throughout my life. I've had nightmares for a long time."
Prosecutors say Holly told them in 1999 that she didn't want to talk about the case anymore, and they advised her not to meet with Bonjean. "But I'm a big girl," she says, "and I can do what I want."
The two women met in a south-side bar in November 2001. Bonjean says she arrived early and ordered a beer or two. When Holly appeared she apologized for being late. Bonjean was then 31, Holly 28. They talked about their kids. Bonjean had two, and another was on the way. Holly volunteered that she had lupus.
Bonjean says Holly told her she'd had a crush on Gray and wasn't sure he was the killer. She says Holly said, "I may have gotten him in my head." She says Holly remembered that a gun with Gray's fingerprints on it had linked him to the murder and seemed surprised when Bonjean said no gun had been found. Bonjean says she asked Holly if she would sign a statement that described her doubts, but Holly begged off, saying she'd been drinking.
In January 2002 Bonjean and Kathleen Flynn, another assistant appellate defender, visited Holly at her apartment, and Flynn wrote an affidavit describing what she'd heard. One sentence reads, "Ms. McGuire expressed reservations about her identification of Jason Gray stating, 'Maybe I just got Jason in my head.'" In an affidavit based on a visit in May 2003, another colleague of Bonjean's quotes Holly as saying she recalled that the gunman had blond hair "but that she never saw the gunman's face." Holly is also described as saying she was taken to the police station in the middle of the night without her mother and "was scared and tired and would have said anything to get out of the police station" and that she thought "other people had identified Jason as the shooter and that the police had recovered a gun that implicated Jason."
Bonjean also went to prison to visit Manuel Bobe, who was serving a life sentence. He'd been convicted of murder in March 1989 after Jesse Alvarez identified him as one of two people in the doorway holding guns. Bobe signed an affidavit retracting his earlier statement about Gray: "I never saw Jason Gray at the party at 63rd and Washtenaw and I never saw Gray commit the shooting. Jason Gray was not involved in this crime." Bonjean also got Sam Rehder, in prison for another murder, to sign an affidavit saying Gray "was not the white kid I saw at the 7-Eleven." And she found three people who signed affidavits saying Gray was at Burgos's house close to the time of the murders. But Renee Bodencak signed an affidavit saying that "some time after the shooting" Holly had told her she was sure the shooter was Gray.
The affidavits persuaded Suria to hold another hearing on whether Gray deserved a new trial, and on June 23, 2003, Holly went to court a fourth time. Bonjean asked her, "Did you see Jason's face in the doorway?"
Holly replied, "I don't even remember."
Bonjean asked, "Why do you think it was that you came to believe it was Jason Gray that did the shooting?"
Holly answered, "A lot of people were saying his name."
When she was cross-examined by state's attorney Mark Ertler, now the lead prosecutor, she said that her original testimony was accurate to "the best of my knowledge." But when he asked, "Did you in fact see Jason Gray firing a gun at the party on November the 7th, 1986?" she said, "I don't remember."
Ertler asked, "But you did testify at Jason Gray's trial that you saw him fire a gun at that party, correct?"
"And were you telling the truth when you said that at his trial?"
"Holly, are you having problems with your memory today because this experience is upsetting to you?"
"It took me a long time to get this out of my head. It's not something you want to remember."
After the hearing prosecutors asked that Suria recuse himself from the case. Suria says he assumes "they felt I was being unfair, that I wasn't going to do the right thing by them. I could have been giving an indication that I thought Holly McGuire's testimony was fuzzy." He agreed to recuse himself, but a month later he reversed himself. "I knew all about this case," he says. "I had heard a lot of information which my colleagues hadn't. I felt it would be unfair to have somebody else come into this."
At a hearing on December 11 Ralph Tamez, who'd been riding around with Sam Rehder on the night of the murders but hadn't testified at Gray's trial, said he hadn't seen Gray at the 7-Eleven. He also said that he was in the Bodencaks' basement when the shots were fired but that it was too dark to make out the figure in the doorway. Kenny Carmona, who hadn't testified at the trial either, said he was in the gangway when he saw three Hispanic males, one with a gun, in the backyard. He said he then went into the basement, and "a minute or two later" the shooting started. He didn't mention a white male.
Holly was back in court on February 5, 2004. Looking like a waif with her feathery dyed-blond hair and her hooded sweatshirt and jeans, she slipped into the room and took the stand for about half an hour. A couple of times she cried so hard that Suria called a break to allow her to compose herself, and he eventually cut off Bonjean's cross-examination.
Ertler asked Holly if she'd seen someone shooting at the party.
"Jason Gray," she said, and at Ertler's urging, she stood and pointed at the 33-year-old Gray in his prison jumpsuit.
She said she'd met with Bonjean but that they'd both been drinking. And she said that her apparent recantation in June was the result of stress. "I was an emotional wreck," she said. "I didn't want to be here, and I rushed a lot of whatever I said just so I can get out of here." A brother who lived with her had killed himself six months earlier. "I was still grieving from my brother's death, and I got a terminal illness that's killing me. . . . I've been going to the doctor for eight years and nothing they can do for it. . . . I'm not supposed to have no stress at all in my life because it accelerates my diseases."
Ertler then asked her about each answer she'd made in June that contradicted her earlier testimony, and each time she indicated that her original statements were right. She also said repeatedly that Gray had killed three people and nearly killed a fourth. She denied that she'd ever expressed doubts to Bonjean or her associates, and she denied Bonjean's suggestion that Ertler and his colleagues had used an outstanding downstate traffic warrant to force her to flip her testimony back.
On March 4 Suria heard final arguments. Ertler insisted that Holly should be believed. "She has undergone nearly two decades of torment because she happened to be in the wrong place at the wrong time," he said. "This woman has been put through the criminal-justice wringer--and more times than any other witness I have encountered. She has never expressed any doubt about Jason Gray being the shooter." He said her apparent doubts in her June testimony were the result of Bonjean's "incessant badgering" and her health problems. After calling Holly the "living definition of courage," he said, "She says Jason Gray is the shooter because he was the shooter. She saw him. She knew him. And she's never said otherwise."
Bonjean focused on Holly's testimony in June. "She made decisions about what she was going to say--and she was unsure," she said. "I do feel badly for her, but she was the one who made these statements. What happened was a tragedy, but it's Ms. McGuire who has vacillated from day one."
Suria hadn't intended to rule immediately, but he said he saw no reason to prolong anyone's agony. "It is the most difficult case," he said. He noted that Ralph Tamez had raised doubts about Sam Rehder's original account of the 7-Eleven incident, which had provided a motive for the crimes, and that Kenny Carmona had seen three Hispanics outside the basement door, mentioning no one else. He said Holly was the "only eyewitness, the only one who placed the gun in Jason Gray's hands. I'm not here today to determine whether Jason Gray is responsible for the shootings. While I do commend JoAnn 'Holly' McGuire, I do not fully believe what she said she saw." Minutes later he stated, "I must consider it reasonably possible that a different verdict would be arrived at if a jury had heard all the testimony I have." Then he granted Gray a new trial.
Gray's mother and his friends appeared jubilant. Across the aisle, the mother of Michael Villasenor, who'd attended nearly all of the hearings, dissolved in tears.
Gray said later that once he was back in the lockup, he realized he was afraid to be transferred from Stateville to Cook County Jail to await trial. "I don't want to call Stateville home," he said, "but it is what I know."
Prosecutors are now working on a brief appealing Suria's ruling. Mark Ertler won't discuss the case because it's still pending.
Gray, denied bail and still at Stateville, continues to insist that he's innocent. "I didn't kill anybody," he says. "I didn't know the guys who died. I wasn't at the party. I was a bad kid, but not so bad that I'd kick in a basement door and fire into a party of people I did know--these were people I grew up with, that I went to school with."
His mother too says he's innocent. Yet she says, perhaps unaware of the implications, that before his trial her son described to her the incident at the 7-Eleven, mentioning the same details Sam Rehder did before he recanted. "He told me about the incident at the 7-Eleven," she says. "They threw bottles and bricks at him. He said that happened." Gray says, "My mother is mistaken."
Bonjean says she believes Gray is innocent. "Maybe Holly did see somebody in the doorway who was blond," she says. "But I believe she never saw his face. She got it into her head that it was Jason, and then she was influenced by the state's attorney to stick with her ID. That's the best-case scenario. The worst case? She gave conflicting statements in June and then in February. Both can't be true. Maybe she just lied."
"I'm a good person," Holly insisted last November. "I haven't done anything wrong. I didn't ask for this. I had the morals to come forward." She says she may have told Bonjean that she wasn't sure Gray was the shooter, but it was only to get the attorney out of her hair. "Sometimes you want to say something to just get somebody away from you." She adds, "I guess I messed up my testimony real bad [in June], but I know what I saw. I saw his face in the doorway and him firing the gun. It's not every day you want to put a person away for life, but he did what he did."
When she testified in February, Holly said she was still afraid of retaliation and had discussed with the state's attorney whether she and her son qualified for witness protection. She recently moved and for the past couple of weeks hasn't returned phone calls for an interview.
"I feel incredibly sorry for Holly McGuire," says Calabrese. "She had every reason to believe that when she first testified that would be the end of it. But she has been hounded by lawyers and gang members. She's been threatened to change her testimony. The eyewitness has become the fifth victim."
Suria too feels sympathy for Holly. "I'm upset for all the young lady has been through," he says. Now 76 and the longest-serving criminal court judge in Cook County, he says he intends "for the moment" to continue hearing Gray's case.
Suria says he thinks prosecutors will have difficulty getting a conviction if they depend on Holly's testimony, since it can now be impeached using her own words. He says eyewitness testimony is often problematic, illustrating his point by referring to psychology and law-school exercises: "A person supposedly comes into a room with a gun. You get all kinds of descriptions as to the shooter's height and weight. Somebody will say the shooter has a weapon. Somebody else will say he doesn't. You have to catch the detail within seconds, and then it's gone. It's all about your ability to recall and relate, and most of us aren't very skilled at that. This is why eyewitness testimony is viewed with such suspicion, in contrast to physical evidence--a gun or a knife with blood on it--which always remains the same.
"When Jason Gray's case began I thought it was a simple matter," he says. "Then I started getting all kinds of apprehension. Not that it kept me up at night, but I thought that maybe justice wasn't being done. More than anything, here you had a single-finger witness who equivocated, and I couldn't let the verdict stand."
That doesn't necessarily mean he's convinced Gray is innocent. "Jason could be guilty," he says. "There were 40 people in the basement--isn't there someone else who saw whether or not Jason was the shooter?"
Art accompanying story in printed newspaper (not available in this archive): photos/Kathy Richland.