7 - Voice For The Defense Online

Mr. Cruz's second trial began in 1990 and
assistant dlstrict attorney Robert Kilander
replaced prosecutors Kmg and Knlght Thts
trtal was similar, in many respects, to the
first trtal, but with the additton of a new
wimess for the state. Robert Turner, a death
row mmate, tesnfied that whde walkmg m
the prison yard with Rolando Cruz, Mr.
Cruz admitted that he had ktlled Jeanme
Nicarlco, along with Hernandez, and
another man. Mr. Turner had written the
district attorney's office, telhng them that
eight different pnsoners had confessed to
committing various crimes, and he was
willing to provlde testimony against any or
all of them, if needed. Prosecutor Kilander
bench warranted Turner, to the Cruz tnal,
and he testified that he had no deal with
the prosecutor and that as far as he knew,
he was recelvmg nothihg m exchange for
hls testimony. (Later, duting Turner's resentencing,
Ktlander testified that Turner was
a "calculating tndrvidual who thinks things
out"and prior to testifying in the Ctuz case,
wanted to make sute that Kilander would
help hlm at the ttme of resentencmg.)
Prosecutor Kilander also used evtdence
of footprints found outside of the Nicarico
home to support the theory that CNZ and
Hernandez had cased the home, prior to
breaklng m. He failed to disclose that the
crime lab techntcian had actually determined
that the prints were left by a woman's
shoe, which was considerably smaller than
the feet of Cruz or Hernandez. The expert
1%
warned Kilander that he should not be
called to rhe stand, however, Kilander d~d
call him but then drrected the testimony
away from tdentifying the type and size of
shoes that left the prints.
Again, Rolando Cruz was convicted and
sentenced to death. The Illmow Supreme
Court affirmed his case, however, the Court
later granted h~s Petltlon for Rehearing and
the case was reversed and remanded for a
new trial. The court found that it was
reversible error to not admit evidence
surrounding the confesston of a third party,
Brian Dudgeon who had admitted to
killing Jeavme Nicanco The jury was not
allowed ro hear evidence of Dugan's five
prior crimes, which were remarkably
similar to the Nicarico murder. They were
also not permttted to hear about the circumstances
under whichDugan confessed to rhe
Nicarcico murder.
In 1995, Mr. CNZ was tried for a third
time. Thls time, the trial court granted a
motlon for judgment of acqu~ttal, at the
conelusion of the state's case. During the
trial, Lieutenant Montesano, the supewisor
of Detectives Voshburgh and Kurzawa,
testified that he had lied m the prevmus
trials when he recounted heanng about the
"dream" statements, phortly after they were
supposedly made. Initially, he testified that
the detectives called him at home and he
instructed them to notify prosecutor Kn~ght
right away. At the thud trial, however, he
admitted that he was not even at home on
the n~ght that the "dream" statements were
made or when he supposedly received a call
from Vosburgh and Kurzawa.
Afrerspending 12 years behind bars and
10 on death row, Rolando Cmz was freed.
But, the stoq did not end there. Illmois
Circuit Judge Edward Koala appointed a
special prosecutor to investigate whether
governmental mtsconduct had lead to
the wrongful convictions of Mr. Cruz. In
December of 1996, a 47-count ind~cunent
was returned agatnst the three prosecutors
and four poke detectives that had headed
up the prosecution team.
Perhaps there were wamlngsigns appearing
along the way, but nobody seemed co
notice, or care. During the prosecutions of
Mr. Cruz, two officers and one
prosecutor resigned, rather than take part
in what they beheved to be the prosecution
of an Innocent man. After tke second trial,
Mary Kenney, an assistant dlstrict attorney
was asslgned to write the state's appellate
br~ef. She refused, clauning that she bel~eved
Cruz was convicted because ofprosecutorial
misconduct. Rather than wnte the bnef, she
resigned from her job. In add~tion, two
detectwes resigned tncludtng one who
complained to the police chief that
he beheved Cruz and Hernandez to be
innocent. The case was marred with
controversy from the begmnnmg, yet for 12
years the prosecutton continued and
Rolando Cruz was repeatedly sentenced
to death.
The Cruz case does not seem to be an
aberration, in the state of lllmois, or sadly,
throughout thecountry. In the last 12 years,
11 dearh row inmates have been set free m
Ilhno~s, whtch means thar as many inmates
have been freed as have been executed. In
fact, a study ofdthe Illinois criminal justice
system has found that 381 hom~cide
.convictions have been reversed m the last
36 years. The statistics and the apparent
margin of error certainly seem to indicate
that the likelihood of an innocent man
bemg executed in Illinols is great. But the
prosecutors are not entirely to blame.
Due to the unusual nature of these
allegations, ttus case has dmedly received
a lot of attention m the national media and
is being watched closely by all who work
within the crimmal justice system. While
the conduct of the Dupage 7 should come
as a surprise to no one, it is surprising that
law enforcement officers are being tried for
what has been condoned for so long. Every
day, m courtrooms throughout this country,
police officers and mformants pequre
themselves and yet ludges, prosecutors, and,
often, the public will turn a blind eye to theu
perjury because it is perce~ved that their
misconduct somehow serves a greater good.
Perhapseveryone knows that the defendant
IS really guilty or, at least, his or her guilt is
extremely hkely, and so somehow tt a made
to seem alright for a wimess to stretch the
truth a liule, ifnecessary to uphold a search
or admit a confession Such misconduct is
allowed to exist, only when the courts and
the public are willimg to accept or overlook
tt, and that ts what could make a conviction
of the Dupage 7 unlikely. Those that
s~t as juton m this case will obviously mew
these defendants much differently than they
would mew the average defendants. You may
be sure that the jurors will know that any
misconduct, whtch may have been commit-
ted, was done so with the intent~on of
catching and convictmg the murderer of a
little girl. You may be sure that they will
know that these law enforcement officers
were just domg their jobs. You may be sure
that these defendants will receive rhe full
presumption of innocence and the benefit
of all doubts. But, whether they are
convicted or ayu~tted, they wtll learn the
lesson that our clients have been taught, so
many times: you can beat the rap, but you
won't beat the ride.
Prosecutors and police officers throughout
the country have complained that the
indictment of the Dupage 7 will have a
chilling effect on law enforcement officials
throughout the country. If that is true, then
the prosecution of the Dupage 7 is already a
success. There should be a chilltng effect on
police officers and prosecutors, much like
the chilling effect we feel as defense
lawyers. We are painfully aware thar our
m~sconduct is always subject to prosecution
and/or disciplinary proceedings and therefore
we avo~d engaging in any type of
conduct that could leopardize our career and
liberty. Perhaps that chill, complained of by
law enforcement that causes them to
hesitate to act, hasa name. Call it Uethics". 6