Tuesday, July 26, 2005

Justice Delayed

It’s been over twenty-two years since little Jeanine Nicarico was kidnapped, raped, and murdered in a horrific crime that shocked the nation. Several news reports over the past two weeks have indicated that Brian Dugan, a convicted felon who confessed to the Nicarico crime nearly twenty years ago, is finally going to be charged in this case. Evidence against Dugan appears strong; he made a video-taped confession, and passed a lie detector test incriminating himself in the crime. DNA evidence from the crime scene has also implicated him. Finally, he has been convicted of two similar crimes, and he is currently serving a life sentence because of them. Despite the evidence against Dugan, three other men were prosecuted multiple times for this crime, even though no physical evidence linking them to the crime was found. Two of the men, Alex Hernandez and Rolando Cruz, were convicted, and subsequently spent many years on death row.

The initial indictment of Cruz, Hernandez, and a third defendant, Stephen Buckley, was made on March 8th, 1984 by then DuPage County States Attorney J. Michael Fitzsimmons. This was just twelve days before Election Day. Mr. Fitzsimmons was up for re-election, a race he would lose. Public pressure was growing to indict somebody, anybody in this case, and it was becoming an issue in the election. Though Mr. Fitzsimmons had no hard evidence linking these three men to the crime, he moved forward with the indictments anyway.

Evidence introduced during the first trial included a “vision” of the crime Cruz related to an investigator, a “vision” which included details of the event not known to the public at the time. During a subsequent trial, it was revealed the investigator fabricated this story.

Another piece of evidence introduced into the first trial was a shoeprint and “matching” shoe. The front door to the Nicarico’s house had been kicked in. Mud on the heel of a shoe left a print on the door, and prosecutors claimed this shoeprint matched the shoes of one of the defendants, Stephen Buckley. Though two crime labs had failed to match his shoes to the shoeprint, Prosecutors were able to find an anthropologist who claimed she could tell someone’s “sex, race and socio-economic status” just by looking at their shoeprint. Even though, while on an archeological dig, she had once claimed a human footprint was made by a “horse or a deer”, Prosecutors still thought her credible. She “matched” Buckley’s shoes to the muddy shoeprint. After the trial, a team of forensic experts totally demolished her theory.

The initial trial of Stephen Buckley resulted in a hung jury. During the retrial, Judge Nolan refused to allow defense lawyers to introduce Brian Dugan’s confession as evidence, even though Dugan had passed a lie-detector test and was already in prison for committing two similar crimes. Prosecutors convinced Judge Nolan that Dugan’s testimony was “totally unreliable”.

In September of 1995, DNA tests ruled out Rolando Cruz and implicated Brian Dugan in the crime. Nevertheless, five weeks later, prosecutors brought Cruz to trial for a third time.

The list of travesties goes on and on. How could this have happened? How could such a gross miscarriage of justice have occured? The underlying reason was a prosecutorial mindset more interested in obtaining a conviction than in seeing justice done. Once prosecutors had decided who was guilty, the facts didn’t matter anymore. Rolando Cruz didn’t confess? No problem; just make up a story about a “vision” Cruz said he had. Unable to find a crime lab which will match the shoeprint to the defendant’s shoe? No problem; just keep looking until you can find someone, anyone, to say the prints match. Someone else has confessed to the crime? No problem; have the judge suppress the information. DNA evidence ruled out the original suspect and implicated someone else, someone who has already confessed? No problem; just ignore it and re-try the original suspect anyway. Prosecutors were simply out of control, and it finally took a directed verdict from a courageous and honest judge to end the travesty.

The problem of prosecutorial misconduct is, unfortunately, still with us. Just last year, Kevin Fox was indicted for murdering his daughter, an indictment handed down, coincidentally, just a few days before the States Attorney was up for re-election. Fortunately, when DNA evidence came in clearing Kevin Fox, he was promptly released. Hopefully, the newly elected States Attorney will now look for the criminal rather than a scapegoat.

Reforms are urgently needed in our judicial system. Governor Ryan made a courageous start when he emptied Death Row, but it will take an aroused public and a rededication of everyone in the judicial system to the ideals of truth and justice before real reform is made.

(If readers are interested in more detail about this case, the definitive work is "Victims of Justice"; an absorbing and depressing read)

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