Sunday, February 21, 2010

Escaped Death Twice, Then Acquitted

Yesterday I had to do legal research. I ran into an evidentiary question while preparing for next week's trial.

The issue: whether a non-testifying, 3rd party's criminal background can be introduced by the defendant at trial in an effort to show someone else committed the crime.

When I framed the issue I was immediately stumped. I had an instinct but no authority. I emailed Tom Gallagher in Minneapolis to ask him his thoughts. This is not an everyday evidence issue.

As we lawyers are trained to do, I went to a book in search of the answer. I have a very good library I have been piecing together.

I once heard said of lawyers: they don't know everything, but know how to find the answer.

I have two books that discuss Illinois evidence. Cleary and Graham's Handbook of Illinois Evidence is by far the most well-known and often cited in case law. As a back-up I have a West publication, Courtroom Handbook on Illinois Evidence.

Both books discuss evidentiary issues such as relevancy, witnesses, and hearsay (among others). The books lay out rules that are taken from current Illinois case law. The case citation is also provided.

I first looked in Cleary like always. Didn't find what I was looking for. But I found it in the West book. Under Section 404(b):3 it reads:

"Within certain limits, a defendant in a criminal case may introduce evidence that tends to show that another person committed the crime with which he is charged."

A-ha! My issue almost to the exact word. The case cited is People v. Cruz, 162 Ill.2d 314 (1994) I logged on to Westlaw to read the case. I needed to make sure the holding is applicable to my case.[I later found the case citation in Cleary. I just didn't see it the first time].

I was not pleased to find a 64 page opinion waiting for me. However, thanks to West's key digest system, it's easy to find the specific issue in the body of the case. This is a shortcut, however. I rarely use it. I like to read fact patterns. If I have to argue my position I have to be able to analogize and distinguish from the fact pattern found in the controlling case.

Some people don't do this. They cite from an evidence handbook or from another case for one proposition of law. But they never read the entire case to give the proposition context. You will look like an idiot if asked about the case you cited and you know nothing about it. You will lose credibility with the judge. That would be bad. Very bad.

Anyway, back to Cruz. This case was nasty. Horrible. Sad. Terrible. I don't have words for it. A 10 year old girl, home sick from school and alone, was taken from her Naperville home in 1983. She was sexually assaulted in ways I don't want to write about. Then she was bludgeoned to death and left in the woods, where she was found 5 days later.

I am not going to break down the case. Don't have time. But, Rolando Cruz and Alejandro Hernandez, were convicted by jury and sentenced to death in 1985. A third man was also tried but the jury wasn't able to reach a verdict. All three defendants were tried together.

As with all cases in which the death penalty is imposed, the Illinois Supreme Court reviewed the case. On review, the conviction was reversed and remanded for a new trial. I don't know the entire legal reason why. But it had to do with a severance issue. In other words, the Supreme Court ruled Cruz should have had a separate trial (I think).

Cruz was again convicted by jury and again sentenced to death. But his penalty was stayed because on review of the sentence (only) by the Illinois Supreme Court, three Justices dissented. Cruz appealed for another hearing and it was granted, thus the case I read today.

Tons of amicus briefs were filed from everyone and their brother. On this third appeal (the case I read) the court split 6-3 in favor of giving Cruz yet another trial, 11 years later.

The case is very complicated. And I only read it once. But Brian Dugan, who was already serving two life sentences for rape and murder, sort of confessed (not in court) to the crime Cruz was convicted of.

Dugan offered to confess officially if DuPage county wouldn't seek the death penalty. DuPage county wouldn't do the deal so nothing happened. Why would DuPage county make a deal? They already had two guys on death row. Case closed. 

There was no known connection between Dugan and Cruz. Dugan had kidnapped, raped, and killed at least two women. He also kidnapped and raped others, but let them go. They would all later identify him.

The evidence against Cruz was iffy. It was a lot of alleged statements to people in county jails and prison. There was no physical evidence connecting Cruz to the crime.

At his third trial, Cruz was acquitted on directed verdict. This happened in 1995. By then DNA was introduced and several witnesses recanted prior testimony. I didn't know this while reading this case. I had no idea where his case was in the system.

Before today, I had never heard of nor read the name Rolando Cruz. As I have quickly found out, his case has been rallied around by  the "anti-death penalty movement" crowd for a long, long time. I have written my views on the death penalty.

What I find most fascinating about what I read today was dissenting Justice Heiple's opinion. It was superbly written and amazingly persuasive. I love it when Justices take jabs at each other in opinions. They do it with such impressive wit.

The majority ruled the evidence of some of Brian Dugan's crimes could be admitted in Cruz's trial (my issue, sort of) even though Dugan, himself, wasn't going to testify. Justice Heiple disagreed vehemently.

Justice Heiple went through an exhaustive attack at Brian Dugan's confession. He called Dugan a liar repeatedly. He cited example after example of parts of Dugan's confession that were contradicted by the facts of the murder.

I haven't seen the room full of boxes in some basement where the entire record of all these trials is kept. But the Supreme Court had it all. Justice Heiple claims he reviewed all of the important stuff. And by the time I finished reading the dissent, I questioned if Dugan committed the murder.

Justice Heiple (well, his law clerks) did a great job of fact pulling. And had Justice Heiple been called to defend Dugan at a hypothetical trial for this murder, he would have gotten him acquitted. The refutation of the majority's conclusion based on fact was impressive. 

But as I was reading the dissent I kept asking myself "if he didn't do it, why would Dugan lie and confess?" He didn't know Cruz. He was already never getting out of prison alive, (two times over), plus a couple other multi-decade sentences. As Justice Heiple pointed out, "Dugan simply has no more time with which to pay his debt to society."

I kept reading and waiting for Justice Heiple to lay out an obvious motive for Dugan to claim guilt that wasn't his. There are yo-yos that walk into police stations and claim responsibility for some local unsolved crime. And the more media coverage, the more yo-yos. I really don't understand the psychology behind that. But, I am not a psychologist.

But this case was different. The State already had two people convicted and sentenced to death. The case was closed. Why bother if you didn't do it? It doesn't compute.

The reasons Justice Heiple came up with to show Dugan's motive to claim he did the crime were sadly weak. Dugan allegedly said he just wanted to mess with the State and take cases that weren't his. Also, once he claimed he killed little Jeanine, there was talk about him being somewhat of a celebrity in prison and even being asked for autographs. 

I don't know what the source of that last bit was. And I can't believe a sitting Illinois Supreme Court justice would put that in an opinion. Child rapers and murderers are not celebrities in prison. They are targets. And they are not asked for autographs. They are stabbed with pens.

In the end Cruz was eventually acquitted. DNA evidence excluded both Cruz and Hernandez, but could not rule out Dugan. Testimony was recanted. In other words, during the first two trials, witnesses for the State committed perjury. And the assistant State's attorneys probably knew it. In fact, the DuPage county State's Attorney probably knew as these prosecutions were brought during an election year.

DuPage county is very Republican and very white. Naperville is nice. It has good schools, big houses, wide streets, tons of shopping, a huge tax base, etc. But it doesn't have crime like this. When I first read the fact pattern, I was shocked to read this happened in Naperville. One wouldn't think something this heinous could happen out there. But it did. And the political pressure to make an arrest and convict someone must have been tremendous.

An assistant Illinois Attorney General assigned to fight an appeal from Cruz, resigned in protest because of the way the case was tried. She thought Cruz was innocent. Then Illinois Attorney General, Roland Burris, wasn't moved. This is the same Roland Burris now sitting in President Obama's former seat in the U.S. Senate. If you remember, Mr. Burris was not welcomed in the senate last year due to allegations of perjury and other wrongdoings.

As a side note, when I was in 4th grade (I think), I went to Roland Burris' office at the Illinois Capital building in Springfield for a field trip. At the time he was the comptroller of Illinois. Somewhere buried in a box I have a lovely Polaroid of the man.

How many innocent people have been executed because of cases tried this way? Perjury, prosecutorial misconduct, manufactured investigations and evidence, etc? This isn't an isolated case. And a sitting Illinois Supreme Court justice wrote there was more than enough evidence to convict Cruz...twice. He also had no problem with sentencing him to death.

Additionally, this same Illinois Supreme Court Justice wrote a scathing dissent declaring it was impossible that Dugan was the real culprit. I wonder how he feels about that opinion today. Because in 2002 better DNA testing showed Dugan was, indeed, the murderer.

Dugan's DNA was extracted from semen at the crime scene. In 2005, DuPage county formally charged him, 22 years after the crime. But Dugan had came forward claiming responsibility for the murder back in 1985 or several months after Cruz and Hernandez were convicted. All Dugan wanted was a guarantee DuPage county wouldn't seek the death penalty and he would confess, pleading guilty.

Did DuPage authorities ever investigate to learn if perhaps Dugan was the real bad guy and that they might have made a mistake? I highly doubt it. Again, they already had two on death row and a happy community.

Admitting that the system might have been wrong or that the trial was tainted with perjured testimony would be political suicide. Has anyone from a prosecutor's office ever been the first to claim the wrong person was convicted? Hell no. That's not how it works.

Did Cruz and Hernandez really need to be on death row for 12 years? Apparently political aspirations and prestige are more important than the lives of two innocent men. And no one wants to let the tainted trial cat out of the bag. By the time all of the government shenanigans were revealed, new elected officials were in office who could point their fingers at their predecessors.

The government doesn't re-open cases when they already have a conviction. The mindset of the government is that the defendant had his trial. The dissenting Justices also said the same thing. In fact one wrote, he didn't have a perfect trial because there is no such thing. But he had a fair trial. Two of them. End of story. Guilty. Guilty. Death. Death.

If Cruz's first two trials were fair, then our system is badly broken.

Dugan eventually entered a blind plea of guilty, meaning there was no plea deal made. Last year, Dugan was sentenced to death. But we aren't executing right now in Illinois, so Dugan is sitting in Pontiac, inmate number A60862. You can enter his name here and look him up.

And about Justice Heiple, he eventually became the Illinois Supreme Court Chief Justice;  until he ran into some problems and resigned

I take my hat off to the lawyers that never gave up on Cruz and Hernandez. It has to be damn near impossible to drum up passion and energy to work on a case when your client has been convicted and sentenced to death twice.

I have a feeling most of the leg work over the years was done by the Office of the State Appellate Defender. There are not a lot of attorneys at that office who handle death cases. The ones that do make up the Capital Trial Assistance Unit and they are dedicated. I met a few of them last October at a death penalty seminar in Springfield. Nice people but as you can imagine, quite haggered. In a good way, though.

The people that fight death penalty cases are not the same people that are politically and/or morally "anti-death." Although, I imagine those that fight the cases are probably not in favor of the death penalty.

"Anti-death" penalty folks don't want anyone executed. Death case fighters (lawyers) are those that don't want innocent people executed. Not every death case in every death state gets so much defense work put into it.

The innocence project doesn't take every case. They take the ones they feel the person on death row is innocent, thus their clever name. After all, probably most people on death row are, in fact, guilty. But as we have seen, some innocent people were put there by mistake and some on purpose.

I don't know how anyone could look at themselves in the mirror at night if they knowingly played any role in depriving someone on death row of a legally fair trial. The person looking in that mirror needs to be locked up, not locking other people up.

A perfect example is one of the cops in the first two Cruz trials. A lieutenant testified under oath, at least twice, that detectives immediately told him that Cruz said he had a vision of a little girl getting taken from her home, raped, and killed. Cruz allegedly knew facts about the case not disclosed to the public. Had that been true, that's pretty compelling evidence.

Turns out the lieutenant was in Florida when he claimed the detectives told him, in person, about Cruz's vision. The cops made it up. And a lieutenant corroborated their story by claiming they immediately told him about it. They all lied. They swore to tell the truth and then lied to a jury. Twice.

This case is an extreme illustration of some of the frustrations we defense attorneys face. If sworn officers of the law have no problems committing perjury, the system isn't fair. And if, as in this case, they were willing to lie about something this serious, imagine how insignificant a minor drug case is seen.

If you think lawyers are just money-hungry, heartless, BMW driving, $5 cup of coffee drinking're only partly right.

This story is a perfect example of lawyers that saved two lives. That's right. But for their tireless work, Cruz and Hernandez would likely have been executed before Governor Ryan stayed all Illinois executions.

How much money did these lawyers make? Well, the state guys make their very humble state salaries. Any of the attorneys from law firms did their work pro bono, meaning free.

This is a story about believing in a client and his case and never giving up.

I am still in awe.

As far as my position on the sleazy lawyer scale, I drive a Ford, have too much heart, make little money, and brew my coffee at home. However, I do own two Apple computers so I guess there is some yuppie lurking beneath.



  1. Excellent post. It is frightening to think that there are innocent people who have been executed - and we know it's happened.

    Keep up the good fight, mi compadre.

    BTW I drive an old Honda and brew my own sun tea.

  2. Wonderful & enlightening post. Thank you for taking the time to outline & share so much information. If only the public could understand what you are telling them, life, and death, would be very different. Please keep writing.


Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.