Prosecution on trial in DuPage
Former and current county officials face charges over misconduct in the Nicarico murder case
By Maurice Possley
Though it has none of the star appeal of the O.J. Simpson case, the trial of three former prosecutors and four current sheriff's deputies accused of framing Rolando Cruz for the murder of 10-year-old Jeanine Nicarico may ultimately be one of the most significant criminal prosecutions of the century.
Both in scope and nature, the case against the
detectives is virtually unparalleled in the history of American
While police and prosecutors occasionally have been indicted for
in the past, no other case has alleged a conspiracy to send a man to
Row and none has alleged that prosecutors perpetuated their deceit for
Yet not a single prosecutor in those cases was ever brought to trial for the misconduct, the Tribune investigation found. Only two of those cases even resulted in charges being filed and, in both instances, the indictments were dismissed before trial, research shows.
Despite assertions for more than a decade by defense lawyers for Cruz and his co-defendants, Alejandro Hernandez and Stephen Buckley, that detectives and prosecutors had engaged in misconduct, it was not until Cruz was acquitted in 1995 that a special prosecutor was appointed, in the face of political and public pressure.
That investigation culminated in a 47-count indictment of King, Kilander, Knight and four DuPage Sheriff's officers -- Lt. James Montesano, Lt. Robert Winkler and detectives Dennis Kurzawa and Thomas Vosburgh.
The seven defendants have pleaded innocent and, through their lawyers, declined to comment on the charges.
During appearances before the DuPage grand jury or through their lawyers in court, the defendants maintain that the detectives did not commit perjury or falsify evidence and that the prosecutors never intentionally presented any false evidence.
But Knight said in a written statement that the prosecution of him and his co-defendants is an "injustice being done (to) people who were simply doing their job honestly as well as they could."
The case against Cruz, Hernandez and Buckley was born of a horrendous crime -- the murder of 10-year-old Jeanine Nicarico. Their prosecution was influenced by a number of factors, including politics, guile, fear, ambition, public pressure to solve the crime, and a desire to convict men that the current defendants believed were responsible.
Knight, in the written response, characterized Cruz, Buckley and Hernandez as "a menace to the public."
But thousands of pages of testimony from the DuPage 7 grand jury and court documents paint a picture of a prosecution that was constructed with lies and half-truths, buttressed with distorted evidence and, according to the indictment, stitched together with criminal misconduct.
From almost the beginning there were hints that something was terribly wrong. Two DuPage sheriff's investigators quit their jobs in disgust over their belief that justice was being compromised. Witnesses testified they were intimidated by investigators. Defense attorneys accused prosecutors of concealing evidence. An assistant Illinois attorney general, appalled by the conduct of prosecutors and convinced of Cruz's innocence, resigned rather than argue to uphold Cruz's conviction and death sentence.
There were other signs as well. The prosecutors insisted they had the right defendants even after another man, in an attempt to avoid the death penalty, claimed responsibility and provided dozens of accurate details to show he had committed the crime.
At its core, the indictment of the DuPage 7 focuses on two key aspects of the case: that on the eve of the first trial of Cruz and two co-defendants, Kurzawa, a veteran of more than 25 years in law enforcement, and Vosburgh, a former jail guard who became a DuPage detective in 1980, concocted a lie -- that Cruz had told them of having a "vision" of the crime that included details only the killer would know. That lie, according to the indictment, was endorsed and perpetuated by the prosecutors. In addition, prosecutors King and Kilander are accused of concealing notes that showed there was an admitted killer named Brian Dugan, a man who had already pleaded guilty to two other murders, including the killing of a 7-year-old girl.
The prosecution of Cruz, Hernandez and Buckley steamrolled with the help of jailhouse informants and the introduction of the vision statement, which never was recorded in any police report.
The case against the DuPage 7 is based largely on
evidence and Cruz's testimony that he never made a vision statement.
a conviction requires proving a difficult proposition: That men who
to uphold the law, broke it.
King is aprosecutor for the U.S. attorney's office; and Kilander is a DuPage County Circuit judge.
They will be defended by a cadre of lawyers, some of whom, such as Terry Ekl, Terence Gillespie, Brian Telander and Ernie DiBenedetto, began their careers as assistant Cook County state's attorneys and worked with and for Kunkle.
In the gallery, alongside family members of the defendants, will be the Nicaricos, who have watched the tragedy of their daughter's murder evolve into a prosecution of men they admire and respect and, in the case of Knight and King, consider their friends.
"Tom Knight was sensitive. He worked very hard," says Tom Nicarico, Jeanine's father. "We were struck by his intelligence, his integrity, his openness. We liked him as a person. We like him today."
"When you lose a loved one, it's one of the most horrendous things in your life," adds his wife, Pat. "These are the people who showed sensitivity. They helped us."
At the center of it all will be Cruz, a onetime street punk who spent 12 years in prison, a decade of it on Death Row. He is expected to testify that what he told the officers and prosecutors during the initial days of the investigation -- words that ultimately would become the basis for a case against him -- was something he made up in hopes of cashing in on a $10,000 reward.
'Something was wrong'
On Feb. 25, 1983, a Friday morning, Jeanine Nicarico stayed home from school with a cold. Sometime in the afternoon, the front door was violently kicked in -- leaving a clearly visible boot print -- and she was abducted.
DuPage sheriff's detective John Sam later recalled, in his testimony before the grand jury investigating the DuPage 7, what the scene looked like when police arrived.
"Once you got there, you knew something was wrong when you saw the door kicked in," he said. "The door was just totally smashed in. The door frame was ripped off . . . it was just an open window."
A platoon of investigators descended, sealing the house to all but evidence technicians who began dusting for fingerprints and taking photographs.
Thomas Knight, then chief of the criminal division of the DuPage County state's attorney's office, told the grand jury that the following day he went to the home to meet with Jeanine's parents, who were struggling to comprehend what had happened.
The discovery of Jeanine's battered body two days later, on Feb. 27, 1983, in a wooded area off the Illinois Prairie Path about six miles from the family home, brought pressure from the public, the politicians and the Nicarico family.
In a county where only 10 murders would be committed in all of 1983, the killing and rape of a 10-year-old girl became a "heater" case, in which the political stakes are high.
A task force of local police, DuPage County sheriff's police and the FBI began sifting evidence and tracking leads. The violent nature of the girl's death -- her skull had been crushed with a blunt instrument and she had been sexually assaulted -- as well as the random nature of her abduction, spurred the growing urgency to solve the crime.
There was no quick or easy solution. In fact, DuPage authorities would not return an indictment against Cruz, Hernandez and Buckley for another 13 months, just days before State's Atty. J. Michael Fitzsimmons would lose his bid for reelection in the Republican primary.
Nearly 15 years later, the core of the indictment against the DuPage 7 is what detectives Kurzawa and Vosburgh said Cruz told them about the Nicarico murder on May 9, 1983, during a night at the DuPage sheriff's offices.
The detectives have testified previously in court that a distraught Cruz recounted a vision or dream that he had had about the Nicarico murder. He allegedly told them that Jeanine's nose had been broken, that she had been hit in the head so hard that a depression was left in the ground where her body was found, that she had been sodomized and that she had been left in a farmer's field. The police said those were details that only someone involved with the crime would know.
Cruz maintains he never made such statements.
The task facing Kunkle and his co-prosecutors, Michael Bartosz and Daniel Collins, boils down to two significant issues.
The first is to convince the jury that Cruz's alleged vision statement never occurred and that despite all his baggage, Cruz is more believable than the law enforcement officials.
The second, and perhaps more difficult, hurdle is to persuade jurors that King, Kilander and Knight knew that the vision statement was a lie, but went ahead with the case against Cruz anyway.
In hearing the case, jurors will likely confront these questions:
If Cruz's alleged vision statement was so important, why was it never documented in a police report? Why were prosecutors so hazy about when they learned of it? And if it really did occur on May 9, 1983, why was there never a mention of it in any of the thousands of pages of transcripts from the grand jury that indicted Cruz, Hernandez and Buckley?
On the other hand, jurors will likely wrestle with this central question, raised by the defense:
Why would veteran law enforcement officers jeopardize their careers, their reputations and their freedom by lying?
"There is an enormous burden to prove prosecutors did something bad," says Gerald Houlihan, a Miami lawyer who, in 1980, took two prosecutors to trial in Rochester, N.Y. "It's damn hard. There is a tremendous presumption in favor of prosecutors. Jurors tend to disbelieve anybody who says anything bad about a prosecutor."
As a federal prosecutor, Houlihan accused the two New York prosecutors of conspiring with sheriff's officials to hide evidence and persuade witnesses to lie against organized crime figures.
Even though two detectives admitted fabricating evidence, after 11 weeks of trial, prosecutor Raymond Cornelius, who by then was a judge, was acquitted. Prosecutor Patrick Brophy was convicted of a single misdemeanor count for eliciting perjury and suppressing evidence and was fined $500.
"It is one thing to prosecute bad guys for doing bad things," Houlihan added. "It is totally different to prosecute good guys for doing bad things."
A Tribune search found six prosecutors this century, including Brophy and Cornelius, who have faced criminal charges alleging the sort of misconduct at the heart of the DuPage 7 indictments -- concealing evidence or using false evidence. Of those six, two were convicted of misdemeanors and fined $500 each, two were acquitted and charges against the other two were dropped before trial.
One of the acquitted was San Diego prosecutor L. Forrest Price, who forged evidence at a 1976 double murder trial, changing the time and place on a taxi trip ticket so that the entries were consistent with a taxi driver's testimony that implicated the defendant, according to court records. Price was charged with a felony, but even though he admitted altering the evidence -- saying he buckled under the pressure of a crushing workload -- a jury acquitted him in 1978.
The California Supreme Court suspended Price's law license for two years, with three justices dissenting, urging disbarment. As for the defendant prosecuted by Price, his murder convictions were not thrown out, but his sentence of five years to life was reduced to one year.
Listening to 'mutts'
Cruz was initially embraced by some DuPage County detectives as a source of rumors about the murder and in one instance supplied information for a search warrant of a home where he said he heard Jeanine was assaulted and killed. Cruz reveled in the attention as the detectives -- after he claimed that he was shot at because he was helping the police -- moved him into a motel and paid for his meals.
At the same time, other detectives discounted Cruz immediately as a smart-mouthed punk who told more lies than truths.
In the weeks following the discovery of Jeanine's body, Hernandez, a glue-sniffing high school dropout from Aurora with a theft conviction and a penchant for telling tall tales, told detectives Sam and Kurzawa that three people committed the crime, including Buckley and someone named "Ricky."
While the detectives never found anybody named "Ricky," they picked up Buckley, who turned over a pair of his boots for comparison with the print on the front door. But Buckley denied any involvement in the crime.
Eager to capitalize on the reward, Hernandez and Cruz babbled incessantly to the detectives and the grand jury investigating Jeanine's murder. Detectives, equally eager to solve the case, later would testify in court that that's when they began to focus on them instead.
Detective Sam believed the shift to Cruz, Hernandez and Buckley was wrong at the time, he told the DuPage 7 grand jury. Former Naperville police chief James Teal told that same grand jury that Sam came to him and asserted: "These mutts didn't do it." Teal testified that at the time, he agreed.
Cruz, Hernandez and Buckley were indicted on March 8, 1984. By December, Sam had become so disgusted with the prosecution and so tired of arguing that the real killer was still at large that he resigned.
As the trial approached, lead prosecutor Thomas Knight summoned John Gorajczyk, a shoe print examiner in the sheriff's police crime lab, to discuss his examination of Buckley's boots, according to the grand jury transcripts.
Earlier, Gorajczyk had compared Buckley's boots to the print on the Nicarico door and concluded they didn't match. He did not write any report about his findings. Gorajczyk told the DuPage grand jury that Knight told him to keep his mouth shut about his conclusion and not to tell anyone that there was no written report.
Knight then sent the print and boots to the Illinois State Police crime lab, where an examiner said he could not conclusively say if the boot matched or not. So, Knight sent the boots and prints to an expert in Kansas, who also said he could reach no conclusion.
Eventually, Knight settled on Louise Robbins, a shoe expert who not only said Buckley's boots matched the door print, but that she could look at a shoe print and tell the height and race of the wearer. Such claims, as well as Robbins' reputation as a shoe print expert, were debunked, but not until years later.
The FBI lab later conducted its own tests and concluded that Buckley's boot did not match the print on the door. Yet prosecutors waited several months after receiving the report before they dropped charges against Buckley on March 5, 1987.
The case took perhaps its strangest twist in late 1984. On Dec. 20 -- more than nine months after the indictment of Cruz, Buckley and Hernandez -- the Wheaton law firm of Callum, Anderson and Deitsch held its annual Christmas party, attracting a variety of judges, lawyers and law enforcement officials, including King, Kurzawa and Vosburgh.
King later told the grand jury that Vosburgh was concerned because neither he nor Kurzawa had been contacted to testify even though the trial, scheduled for Jan. 7, 1985, was just a few days away. Vosburgh told King that he and Kurzawa were particularly eager to testify about the vision statement they had taken from Cruz 18 months earlier.
The detectives explained that after their conversation with Cruz they had telephoned their supervisor, Lt. Montesano, who advised them to call Knight. Vosburgh and Kurzawa said Knight told them to stop the interview because he would question Cruz about it when the grand jury convened in a few days. He also directed them not to write a report about the interview, they told King.
King told the DuPage 7 grand jury that he was stunned by the revelation; that he had known nothing about it. Indeed, Cruz had never been asked about it during his grand jury appearances. Vosburgh and Kurzawa had not been called to the grand jury to relate it, either.
Knight told the DuPage 7 grand jury that when King related the party conversation with Vosburgh and Kurzawa "it was news to me." Knight said he recalled taking a phone call back in May 1983 from Kurzawa, but that at the time did not equate Cruz's alleged statements with admissions that would suggest he was the killer.
Yet, when the trial opened, the prosecution case relied on Kurzawa's and Vosburgh's testimony about the vision statement. From the beginning, defense attorneys didn't believe it was true -- there was no written report, neither officer had even been called before the grand jury to describe it, and Cruz was never even asked about it during several grand jury appearances.
The defense lawyers tried, but failed to keep Kurzawa and Vosburgh off the witness stand. In the end, Cruz and Hernandez were convicted. The jury deadlocked on Buckley and a mistrial was declared. Weeks later, Cruz and Hernandez were sentenced to death.
In 1988, the convictions were set aside and Cruz and Hernandez granted new trials because the Illinois Supreme Court ruled they should have been tried separately.
By the time Cruz went on trial for a second time in Rockford in January 1990, Knight and King had left the DuPage state's attorney's office and were replaced by Robert Kilander and Richard Stock. With Vosburgh and Kurzawa again on the stand, Cruz was once more convicted and sentenced to death.
Hernandez went on trial weeks later in Downstate Bloomington, where an incident there involving shoe print evidence provided further impetus to the contention by defense lawyers that the prosecutors were not playing by the rules.
Paul Sahs, a crime lab technician for the DuPage County Sheriff's office, told the DuPage 7 grand jury that when he arrived at the Bloomington courthouse to testify, he pulled Kilander aside to pass on startling information.
The prosecution case rested, in part, on a theory that two shoe prints in the dirt below a window of the Nicarico home were circumstantial proof that burglars casing the home saw Jeanine home alone and decided to break in. Kilander had relied on that theory just months earlier in obtaining the conviction of Cruz.
Less than an hour before Sahs was to take the witness stand he told Kilander that he had discovered the prints were made by a woman's shoes. He suggested that Kilander would not want to call him to the stand, according to Sahs' testimony before the DuPage 7 grand jury.
Sahs said Nike officials had told him that the prints were made by a woman's style shoe, size 5 1/2 or 6 -- too small for either Hernandez or Cruz to have made them.
The information was important to defense lawyers because it undermined the prosecution's theory of the case. Legal rules require prosecutors to give defense lawyers any information that suggests a client's innocence.
But Kilander chose to ignore the new information, and put Sahs on the stand without asking him about shoe size or the sex of the wearer, according to court records.
Hernandez -- like Cruz -- was convicted. This time Hernandez received an 80-year prison term.
The second convictions of Hernandez and Cruz also were reversed, this time on a number of evidentiary grounds, including the trial judge's refusal to allow jurors to hear of Brian Dugan's other, similar crimes. Not once were the prosecutors singled out for improper acts.
The case against Cruz began to unravel in the fall of 1995 when he went on trial for the third time in seeming defiance of logic, common sense and the evidence.
For 12 years -- longer than Jeanine had lived -- DuPage prosecutors had tried to convict Cruz for the crime, a killing as brutal as any could be. The evidence and theory of the evidence had shifted over time: First it was Cruz, Hernandez and Buckley who had abducted the girl and murdered her. Later, after Dugan's statement, the sands shifted even more: Dugan didn't do it; then Dugan did it with Cruz and Hernandez. Jailhouse informants had come forward to say Cruz incriminated himself -- then the informants recanted.
Lawrence Marshall, a Northwestern University law school professor, and a team of defense lawyers led by veteran former prosecutor Tom Breen, attacked the prosecution's case. Private investigator John Eireman tracked down each prosecution witness whom the prosecution claimed would implicate Cruz. One by one, the witnesses said their testimony was being twisted or was wrong.
So the prosecution case was on shaky ground when DuPage County Circuit Judge Ronald Mehling called the bench trial to order. It collapsed before the defense even began presenting evidence.
The turning point came when Lt. Montesano took the stand to testify about the vision statement. He admitted that he had lied, though perhaps unintentionally, about being at home on the night Kurzawa and Vosburgh said they had called him to seek advice about Cruz's alleged vision statement.
That admission, combined with defense suggestions that Kurzawa and Vosburgh were wrong about the date when such a statement could have been made, suggested to the judge that they had lied as well.
With that, one of the most damning pieces of evidence against Cruz -- the vision statement -- suddenly became highly suspect to, not just the defense lawyers, who had questioned the credibility of the claim from the outset, but to the public.
In a moment of high courtroom drama, Mehling held aloft a picture of Jeanine Nicarico and harshly criticized sheriff's police officers, then acquitted Cruz.
After Mehling issued his verdict, DuPage Circuit Chief Judge Edward Kowal took the rare step of appointing William Kunkle as special prosecutor to investigate the sheriff's police. There was no directive to look at the prosecutors, who had not been singled out in Mehling's decision.
Initially, Kunkle's appointment was viewed by skeptics as evidence that the investigation was doomed to be a whitewash.
They pointed to Kunkle's representation, as a defense lawyer, of Jon Burge, a Chicago police lieutentant who was fired after an inquiry found "systemic" physical abuse of murder suspects by detectives under his command.
Kunkle pointed out that as a prosecutor he had actually approved indictments of police officers for wrongdoing. The Tribune study of cases reversed in Illinois for prosecutorial misconduct in the past two decades failed to turn up a single case involving Kunkle.
As Kunkle began summoning DuPage law enforcement officials before the grand jury, he expanded the investigation and ultimately, obtained an indictment not only against the four sheriffs' investigators, but also Knight, King and Kilander.
"We generally condone a great deal of misconduct when we think it serves the ultimate ends of justice," Marshall says.
"Many players in the system -- judges, defense lawyers, prosecutors -- know some of the stuff that happens, but nonetheless tend to turn a blind eye.
"There's a feeling that that is how it works, that it's legitimate to bend the truth sometimes when you are doing it with -- quote, the greater good, end quote -- in mind."<> "Prosecutors just don't prosecute prosecutors," he adds. "We don't ask people to investigate their own family and prosecutors are like family."
Trial and Error
Truth in Justice