Rolando Cruz, who spent seven years on Illinois' Death Row for the rape and murder of 10-year-old Jeanine Nicarico, asked Gov. George Ryan on Wednesday for an executive pardon in a petition sharply critical of Atty. Gen. Jim Ryan's handling of the controversial case as DuPage County state's attorney.
As the issue of clemency and the death penalty increasingly divides the state's top Republicans, Gov. Ryan on Wednesday hired former governor Jim Thompson to defend him against a lawsuit filed by Atty. Gen. Ryan, the GOP's candidate for governor. The attorney general's suit, filed Tuesday, sought to halt upcoming clemency hearings.
Cruz's petition alleges that for years there was ample evidence Cruz and his co-defendants were innocent of Nicarico's 1983 murder, but that Ryan ignored it and "persisted in his efforts to secure Mr. Cruz's and (co-defendant Alejandro Hernandez's) executions."
Dan Curry, a spokesman for Jim Ryan, dismissed the allegations and reiterated Ryan's explanation that, in the Nicarico case, he based his decisions on evidence gathered by police and prosecutors. "These are all old charges and allegations and many of them were aired . . . and they were discredited," Curry said on Wednesday. "These allegations have been refuted in court, dismissed by a judge or by a jury."
Cruz's petition, and one filed for Gary Gauger, who spent nearly four years in prison--and some nine months under a death sentence--came one day after the attorney general filed two lawsuits in an effort to block possible commutations for the nearly 160 men on Death Row.
Gov. Ryan, who in 2000 declared a moratorium on executions, has said that he is considering commuting the sentences of all Death Row inmates to life in prison without the possibility of parole because of his concerns about the state's troubled capital punishment system.
Cruz's lawyer, Lawrence Marshall, of Northwestern University's law school, sought to link Ryan's actions in the Cruz case with the filing of the lawsuits, saying they reflected the attorney general's failure to learn anything from the wrongful convictions of Cruz and Hernandez.
"He preferred to allow Cruz and Hernandez to remain on Death Row and be executed, as opposed to admitting that his office had made a tragic mistake in wrongly prosecuting these two men," said Marshall. Asked whether Ryan thinks Cruz deserves clemency, Curry said the attorney general has not taken a position on the matter and that he hasn't taken a position on any of the petitions that have been filed before the Prisoner Review Board.
A spokesman for Gov. Ryan said Cruz, who with Hernandez was acquitted at a third trial in 1995, would get an expedited review, as would Gauger, who was exonerated after two motorcycle gang members were implicated in the crime. Both of the gang members have since been convicted.
Speeding up the process would allow the men to seek compensation in the Illinois Court of Claims for the time they were imprisoned, said the spokesman, Dennis Culloton. Both individuals have suffered terrible injustices and they deserve to have this pardon, though it won't replace the time and life they lost while they were behind bars," Culloton said.
Hernandez is expected to file for a pardon in the next two weeks. Cruz's petition alleges Ryan took Cruz, Hernandez and a third defendant, Stephen Buckley, to a first trial despite the lack of evidence against them, then to a second trial in spite of evidence another man, Brian Dugan, had confessed to the crime.
Later, DNA linked Dugan to the crime, yet authorities in DuPage County, including current state's attorney and Republican candidate for attorney general Joseph Birkett, have never charged him with the Nicarico rape and murder.
The Cruz and Hernandez case led to the indictments of seven DuPage County law enforcement officials, including three assistant state's attorneys, though not Ryan or Birkett. All seven were acquitted after a trial in 1999.
Marshall said that Cruz long was reluctant to seek the pardon.
"Mr. Cruz has been very unhappy in the past with having to seek this pardon," said Marshall. "He thinks that the state should be seeking his pardon for what they did to him."
In announcing Thompson's appointment as counsel, the governor's office attacked the attorney general's filing of "frivolous lawsuits." But Thompson, chairman of the Winston & Strawn law firm, said, "I would not classify this as frivolous. It's an interesting case as far as the law."
Thompson, the state's longest-serving governor when he left office in 1991, said he did not feel he was being placed in a difficult political situation by defending the incumbent governor against lawsuits filed by the attorney general. George Ryan served as Thompson's lieutenant governor. Thompson also has been a vocal supporter of Jim Ryan's candidacy for governor against Democrat Rod Blagojevich, although Thompson appeared at a fundraiser that Democrats at his law firm hosted for Blagojevich.
Thompson said he believes Jim Ryan's lawsuits come down to separation
of powers issues. Thompson said the separation of powers prevents the Supreme
Court from telling the governor what he can do on a discretionary act such
as awarding clemency, and that a statute enacted by the legislature cannot
restrict a governor's constitutional power to grant clemency.