The flip side of a fair trial
Some Cook County prosecutors break the rules to win
By Maurice Possley
There was an ongoing competition among prosecutors to be the first to convict defendants whose weight totaled 4,000 pounds. Men and women, upon conviction, were marched into the room and weighed.
Because most of the defendants were African-American, Goggin recalls now, with no small degree of discomfort, the competition was described in less sensitive terms behind closed doors -- "Niggers by the Pound."
Those were different days in the state's attorney's office at the Cook County Criminal Courts Building at 26th Street and California Avenue, when prosecutors were mostly white men who ate, slept and breathed their cases, working and partying side by side. "It was us against the worst of the worst," Goggin recalls.
It was an era where being politically correct meant being a part of Mayor Richard J. Daley's Democratic machine. It was a time when the state's attorney's office kept a chart of wins and losses, each victory earning a prosecutor a green sticker next to his name, and each loss an embarrassing red one.
It was a place where winning was so important and commonplace -- Goggin's record in one courtroom was 58 wins, two losses and two hung juries -- that the Two-Ton Contest evolved as another measure of success, with African-Americans as game tokens.
And it was a time when some prosecutors hid evidence, overreached in courtroom argument, reneged on promises, sat idly by while their witnesses shaved the truth and, in some instances, were the unwitting pawns of unscrupulous law enforcement officers who concealed evidence or lied, according to a Tribune analysis of hundreds of cases.
Goggin himself was involved in six reversals -- four murder convictions set aside and two death sentences vacated -- because of misconduct in the courtroom. No other prosecutor in Cook County has more reversals in the past 20 years, according to the Tribune study.
Gregg Owen, Goggin's partner in four of the reversed cases and now a private defense lawyer in Schaumburg, says they did what other prosecutors did. And they earned plenty of green stickers for it.
"Nobody told us to cheat. Nobody told us to do wrong," he says. "It was to be smart, be tenacious. We were told we were the best prosecutors in the office."
"I didn't do anything wrong," Goggin adds.
More than 16 years after Goggin left the ranks of prosecutors to go into private practice in west suburban Oak Park, the Two-Ton Contest is long gone. Prosecutors no longer openly refer to the suburban courthouses in Markham and Rolling Meadows as "Darkham" and "Rolling Ghettos." And the team of three dozen prosecutors at 26th Street has grown to more than 200, with their ranks now including many minorities and women.
But cheating, misconduct, and in a more subtle form, the racism of the 1970s still persist.
As a result, about once a month, on average, for the past two decades, a conviction has been set aside in Cook County because of a judicial finding of improper conduct by prosecutors.
For the guilty, each new trial represents yet another opportunity to go free by convincing a judge or jury that the evidence is insufficient to convict.
In addition, the reversals exact a toll on victims and their families who are forced to come back to court, reopening sometimes barely healed emotional wounds. There is a cost in time and effort for investigators, defense lawyers, judges and jurors in an already overburdened court system.
A Tribune examination of all types of criminal cases since Dec. 31, 1977, found 326 state court convictions in Illinois -- 207 of them in Cook County -- have been reversed because of prosecutor misconduct.
Nearly half of the reversals in Cook County were for homicide convictions.
In addition, eight defendants in Cook County were sentenced to death and won new sentencing hearings due to prosecutor misbehavior. When new hearings were held, only two resulted in reimposition of a death sentence.
A Tribune study of homicide cases across the country revealed 381 reversals since 1963 for two of the most serious types of misconduct -- using false evidence or concealing evidence suggesting innocence. The review of more than 5,000 Illinois and Cook County cases covers all types of crimes during the past two decades and focused on all forms of misconduct that result in a reversal.
Most of the reversed convictions -- 93 percent -- involved jury trials, which prosecutors tend to win. A Tribune examination of court records shows that in the 10-year period ending in 1995, Cook County prosecutors won about 82 percent of the murder cases tried before juries.
And while the number of reversed cases is a small percentage of the tens of thousands of criminal charges that were filed during that period, an examination of thousands of pages of transcripts and evidence in the Cook County cases reveals trial after trial where prosecutors cheated, lied or spun out of control during arguments before a jury.
Not a single prosecutor has been dismissed for misconduct since 1990, according to Cook County State's Atty. Richard Devine and his predecessor, Jack O'Malley. Mayor Richard Daley, who was state's attorney from 1980 to 1989, declined to comment, but top officials who worked for him also could not recall any firings. Michael Shabat, formerly first assistant for the late Cecil Partee, who served from 1989 to 1990, said he cannot recall dismissals.
David Erickson, first assistant Cook County state's attorney, says that prosecutorial misconduct is rare, occurring over the past three years in only an infinitesimal fraction of criminal cases.
"But even one case is too much," he adds. "As small as that is, it's too many."
The line between misconduct and hard-nosed lawyering is thin and a matter of integrity and self-control. Misconduct ranges from an overexuberant argument to maliciously hiding evidence of a defendant's innocence. And it is frequently the subject of fierce debate in appellate courts, with prosecutors defending their actions while being condemned by defense lawyers.
Goggin, who rose to become a supervisor in the state's attorney's office, portrays himself as a well-intentioned prosecutor who lost control in the heat of battle, driven to win by a complex blend of factors, including appeasing the family of a victim, earning accolades of fellow prosecutors and "getting the bad guy."
Some misconduct, such as hiding evidence, is not easily discovered. And other kinds, such as improper argument and bullying tactics, happen in court, where judges have the power to declare a mistrial.
Misconduct occurs in the courtrooms of permissive judges who favor the prosecution -- possibly because of friendship or a get-tough attitude toward criminals. It occurs in the courtrooms of stricter judges who, reluctant to declare a mistrial and start the case all over again, attempt to correct the imbalance with a rebuke.
"There are a lot of good prosecutors out there who want to win and can take a loss," says criminal defense attorney William Murphy, a veteran of 31 years in the Cook County courts. "And there are prosecutors who so don't want to lose they would rather win dirty."
An examination of the cases shows that no charge was too serious and no case was too small -- convictions have been voided for a wide variety of offenses, ranging from murder, sexual assault and armed robbery to resisting arrest, public indecency and even the sale of stolen pigs.
- Prosecutors Chris Cronson and Daniel Franks rejected a 62-year-old African-American man as a juror in the murder trial of Peter Sims in 1984, saying that at his age, he should have a better job than a stock clerk at a shoe store. That explanation, the Illinois Appellate Court declared, was a sham to cover their improper attempt to reject him because of his race. The court labeled the excuse "ludicrous." Sims, who had been sentenced to 66 years in prison, was granted a new trial. He pleaded guilty and received a reduced sentence of 33 years.
- Prosecutor Nick Ford told a jury that he would be fired if his witnesses lied -- a blatant attempt to use the good name of his office to vouch for the witnesses. The act, combined with judicial errors, resulted in a reversal of the 1995 murder conviction of Christopher Henyerd, accused of the robbery and murder of West Side grocer Nick Martini. Two months after the reversal, Ford was named a Cook County judge. The retrial is pending.
- Ralph Harbold, once a prominent chiropractor, is now awaiting his third trial on a charge of murdering a wealthy businessman in 1981. His first two trials were reversed -- in 1984 and 1991 -- because prosecutors introduced prejudicial evidence and made improper closing arguments. A third trial is scheduled to begin later this year.
The 326 reversed convictions uncovered by the Tribune represent only a part of the problem. Some cases are dismissed prior to trial for a variety of reasons, including misconduct in the grand jury.
Reversals also occur in rulings by trial judges and in unpublished appellate court opinions, neither of which are recorded in official legal databases. In the past 13 months, there have been eight reversals in unpublished opinions in Cook County.
Defense lawyers also say that when they raise a serious allegation of prosecutorial misconduct, the issue is frequently resolved without an official finding of wrongdoing or public exposure by cutting deals for reduced sentences or immediate release.
Last year, a defense lawyer accused Cook County prosecutors Kent Sinson and Peter Goutos of hiding evidence that one of their witnesses had been promised a light sentence on a drug charge in return for his testimony against accused murderer Bernard Benjamin. The prosecutors stood silent when the witness denied in court that he'd been promised a deal, and Benjamin was convicted. When the defense later learned the witness received only probation, the prosecution agreed to a new trial, characterizing it as "newly discovered evidence."
Some of the cases examined by the Tribune were never retried, but instead were plea bargained for reduced sentences because evidence had deteriorated or disappeared, memories had faded, and witnesses had died or moved away.
In one case, a clerical error resulted in a murder case being dropped entirely. After the murder conviction of Henry Lee Thomas -- accused of stabbing Dorothy Terrell to death and dumping her body in a forest preserve -- was reversed because prosecutors improperly told jurors that he had flunked a lie detector test, it was sent back for a new trial. But due to an error in the Cook County clerk's office, prosecutors did not discover the reversal until it was too late to bring Thomas to trial within the time required by law. The delay forced them to dismiss the case.
And in some instances, the appeals process took so long that defendants had already served their time and been released, rendering the reversal practically meaningless.
Still other cases ended in acquittal.
While thousands of defendants pour through dozens of courtrooms across Cook County, which has one of the largest court systems in the nation, the hub remains the seven-story courthouse known as "26th and Cal."
Here, justice often is imperfect. And frequently, the Tribune examination shows, it is unfair. Prosecutors and defense attorneys square off over charges of drug dealing and robbery, sexual assault and murder; to cajole and shout, to argue and debate, to wheel and deal, and, ultimately, to win.
The journey of a criminal case from arrest to conviction travels an often lengthy and tortuous legal path. The reversals in Cook County show how misconduct can occur at virtually every step of the way.
The key figure during the entire proceeding is the prosecutor, the ultimate gatekeeper of the state's evidence and witnesses. The prosecutors control the paperwork -- the test reports of bullets, weapons, clothing, blood, hair; statements taken from defendants and witnesses; and police reports. They determine which of these items are turned over to defense lawyers, and when.
How does improper prosecutorial behavior make a trial so fundamentally unfair that a conviction is set aside?
The basic right to a fair trial, even for those accused of the most abhorrent crimes, was established in the U.S. Constitution with few specific rules beyond the 5th Amendment right against self-incrimination. Over the past two centuries, a vast array of rules of engagement have evolved through decisions, usually by the U.S. Supreme Court. These rulings control how juries are selected, what questions may be asked of a witness, what evidence may be presented and what lawyers can and cannot say during the arguments to the judge or jury.
Misconduct can occur before a trial and even before charges are filed.
In 1984, David Lee's rape conviction was thrown out because his confession came only after Assistant Cook County State's Atty. Mark Schroeder told Lee that his fingerprints had been found in the victim's apartment -- even though none of his prints were there. Although police officers are allowed to mislead suspects during questioning, prosecutors, the court ruled, cannot.
Once charges are brought, defense lawyers are entitled to receive before trial all information that could be viewed as favorable to a defendant, as well as names and addresses of prosecution witnesses and their written or recorded statements. Although it is a fundamental rule designed to prevent trial by ambush, 25 convictions have been reversed in Cook County in the past two decades because prosecutors failed to turn over such evidence.
Prosecutors also are responsible at trial for the acts of police and other law enforcement officials who investigate crimes.
That was the case in 1995 when defense lawyers for accused murderer Donald Kalwa discovered that for nearly two years, Chicago Police Detective Richard Schak knew that a fingerprint lifted from the car window of murder victim Rachel Rachlin -- whose body was found in the trunk -- did not match those of Kalwa, but he never told anyone about it. Defense lawyers said such a print could point to another suspect.
The concealment of evidence that suggested someone other than Kalwa may have been the killer prompted Circuit Court Judge Fred Suria to set aside Kalwa's conviction and order a new trial. Prosecutors Robert Berlin and Richard Kayne said they were unaware of the evidence. Kalwa was retried and convicted.
Some of the most insidious examples of misconduct in the Cook County courts have occurred at the outset of trials when prosecutors reject jurors because of their skin color. At least 22 different convictions have been vacated in the past 12 years because prosecutors allegedly discriminated against minorities in jury selection, according to the Tribune analysis.
In 1986, the U.S. Supreme Court, in a case entitled Batson v. Kentucky, provided a new test to determine whether prosecutors were keeping African-Americans off juries. Before the Batson ruling, when the threshold for proving discrimination was so high that prosecutors excused African-Americans without the least worry of being reversed, juries in Cook County frequently were all white.
Some former prosecutors admit privately that African-Americans were routinely excused in the past because prosecutors believed that they were more likely to accept assertions that police mistreated a defendant during questioning. And some Cook County prosecutors still attempt to keep African-Americans from juries, in some instances with judicial help.
In 1993, for example, the appellate court found that Cook County Circuit Judge Ronald Himel had "coached" prosecutors Georgia Buglass and Edward Schreiber as they scrambled to find race-neutral reasons for dismissing African-Americans from a jury. In reversing the armed robbery conviction of Robert Banks, the appeals court noted that Himel called the Batson decision "poorly written, poorly understandable . . . certainly wrong . . . ludicrous and ridiculous."
As recently as September 1996, the appellate court ripped the Cook County state's attorney's office for perpetrating "the charade" that the jury selection process has become.
"Surely, new prosecutors are given a manual," Justice Alan Greiman noted sarcastically, "probably entitled, `Handy Race-Neutral Explanations' or `20 Time-Tested Race-neutral Explanations.' "
Such a book, he suggested, might include the following reasons, all of them gleaned from actual cases: too old, too young, divorced, unkempt hair, freelance writer, wrong religion, social worker, renter, lack of family contact, single, lack of maturity, improper demeanor, improper attire, lives alone, lives in apartment complex, misspelled place of employment, unemployed, employment as part-time barber, unemployed spouse, spouse employed as school teacher, failure to remove hat, living with girlfriend, deceased father.
Crossing the line
Most cases of misconduct occur during the trial, which begins with opening statements, moves into presentation of the prosecution and defense evidence and concludes with final arguments.
It is in the heat of battle, during argument before a jury or cross-examination, that the trial misconduct frequently occurs and is either not corrected by the judge overseeing the trial or is so egregious that a judge's rebuke is later deemed inadequate to correct the prejudice to a defendant.
"That adrenalin rush can push you over the line," says Michael Ficaro, a former supervisor in the state's attorney's office in the 1970s and now a lawyer in private practice. Ficaro prosecuted two of the reversed cases examined by the Tribune.
It happens, according to Goggin, when "you see a defense attorney attempting to whittle away at your evidence. A fear starts to enter into a prosecutor's mind that you might lose this case. You try to remember what is allowable and what's not allowed. Sometimes the things you say were already ruled proper or harmless and they now, under certain circumstances, different judges, different fact settings, are held to be error and they reverse the case."
Once again, the rules of engagement bend to the will and strategies of the lawyers and judges in the courtroom.
A Tribune examination of the Cook County cases shows reversals occurring before more than 80 different judges, with most judges having only one or two such cases. However, two former judges -- James Bailey (17 convictions reversed) and Thomas Maloney (10 convictions and two death sentences reversed) -- stand out.
Maloney, now serving a 15-year prison term for taking bribes to fix murder cases, was known as a hard-nosed jurist who was openly contemptuous of defense lawyers and imposed severe sentences on defendants.
Bailey was considered a fair-minded judge, but also one whom prosecutors remember as allowing them wide latitude. "He would let us say just about anything we wanted to say," recalls one former prosecutor.
Bailey acknowledged that many of the reversals were the result of improper argument, including two cases prosecuted by Owen and Goggin and another handled by Michael Ficaro. "They were very good, but overly aggressive, prosecutors, very flamboyant," Bailey said. "You can't do a damn thing about it unless the other side objects."
Most of the reversals involved death penalty cases, he noted. "In those cases, people get inflamed. They're usually very brutal murders. And on death penalty cases, you had to have a perfect record or get reversed."
Similarly, some prosecutors take advantage of lax or incompetent defense attorneys who fail to object when assistant state's attorneys step over the line. The Tribune examination of the 326 reversed convictions in Illinois shows that the assertion of prosecutorial misconduct was accompanied in dozens of cases with a claim of incompetence of defense counsel.
When professors and legal scholars attempt to illustrate how not to try a case, they often cite the murder trial of Mitchell Weinger. The Illinois Appellate Court overturned the conviction in 1981. The prosecutors involved: Goggin and Owen.
"That's the one they use at the seminars," Owen says unabashedly.
The opinion as first issued was a scathing indictment of Owen and Goggin, citing more than 50 instances of misconduct and mentioning both prosecutors by name -- an unusual practice for an appeals court. Owen said that the original opinion was withdrawn shortly after it was issued and rewritten to lower the misconduct count to 35 and to remove their names.
The trial's fatal flaws included the prosecution's opening statement, in which jurors were told that a witness would say the killer was wearing a turquoise necklace. The witness identified Weinger as the killer, but never said he was wearing such a necklace. The error was compounded when Goggin and Owen elicited testimony from a police officer that such a necklace had been found in Weinger's apartment, creating an impression that the witness' identification of Weinger had been corroborated by the police officer who found the necklace.
In addition, the appeals court cited 20 instances where Goggin and Owen persisted in asking witnesses to answer questions, despite the repeated rulings by the trial judge, Frank Machala, that the questions were improper. The tactic of continuing to pose such questions was, the appeals court said, designed to force defense lawyers to repeatedly object in hopes that the jury would view them as obstructionists.
After the conviction was reversed, Weinger pleaded guilty rather than go to trial again. He served less than seven years in prison.
"Everything I did in Weinger had been upheld in the past in other cases," Owen says. "I tried 64 jury trials and I was 62 (wins) and 2 (losses). Goggin and I never lost together as a team; we won almost 40 cases in a row."
Sometimes overreaching by prosecutors can taint even the most straightforward cases.
There was never any doubt that Richard Stack killed his wife and their 13-month-old son on a sunny Mother's Day afternoon in 1980, but because prosecutors mishandled the case, it continues to linger in the courts. And once again, Goggin was at its center.
When police arrived at the Stack residence at 6400 S. Kildare Ave. on that May 11, Stack, shirtless and bloody, was leaning from a shattered 2nd-floor window, screaming, "God died for our sins!" and babbling about "devils and demons."
Inside the modest home, Carol Ann Stack, 22, had been kicked repeatedly in the head and was stabbed and slashed more than 100 times. Shards of a shattered pool cue were embedded in her chest. The couple's 13-month-old son, Richard Jr., had been stabbed repeatedly and then hurled into a wall.
Almost immediately, Stack confessed, telling police: "I just killed my wife and kid."
Ultimately, the case boiled down to a legal struggle over whether Stack was sane enough to be convicted and sent to prison or whether he was so unbalanced as to be found not guilty by reason of insanity and sent to a mental institution, where he might one day be deemed mentally fit enough to be released.
Twice the case went to trial and twice Stack was convicted. And both times the convictions were set aside because prosecutors broke the legal rules.
In Stack's first trial, Goggin and co-prosecutor Ernie DiBenedetto fought vigorously for a guilty verdict that would send Stack to prison for life. By the time Goggin stood up to give his closing argument, the case already was critically damaged by legal miscues, including the presentation of testimony that Stack must have been sane because he invoked his right to remain silent. It is a violation of a defendant's rights to suggest a defendant's silence -- a constitutional right -- is evidence of guilt.
But Goggin's final address to the jury was a study in rampant emotion and, the appeals court later said, a perilous misstatement of the law.
Lacing his address with explosive words and phrases -- "butcher," "stomped their heads," "cracked that baby's skull" -- Goggin pointed to the bloody photographs of the victims. "This case is about Carol Ann Stack and Richie Stack Jr. being transformed from two living human beings into two mutilated carcasses.
While such language indicated how passionately Goggin wanted a criminal conviction, none of it was outside the bounds of fairness. It was what he said next that crossed the line, the court said.
"We all have responsibilities," Goggin declared. "And you will live with your decision today and so will the rest of us in our society. And so will the rest of the people from that neighborhood -- if you let him escape responsibility for his crime."
The jury heeded Goggin's words, convicting Stack of murder. But two years later, in 1984, an appeals court ordered a new trial, saying, in part, Goggin misstated the law by suggesting that a verdict of not guilty by reason of insanity would set Stack free to return to the community.
Stack was convicted for a second time in 1987. Once more, the conviction was set aside because DiBenedetto and his co-prosecutor, Richard Stock, repeated Goggin's mistake, telling jurors they had to convict Stack to avoid the possibility he would go free.
In reversing the case for a second time, Appellate Court Justice Calvin Campbell noted, "It is regrettable that the victim's family will be forced to endure a third trial. The people of the state of Illinois, including the victim's family, are not well served by prosecutorial misconduct."
When the third trial concluded in 1996, Stack was convicted again. The case is now on appeal and defense lawyers contend that prosecutors Charles Burns and John Murphy presented evidence of Stack's post-arrest silence before the jury -- an error that contributed to the reversal of the first trial.
The state denies any misconduct occurred. Burns is now a judge.
Missteps in closing arguments have become the prosecutorial error cited most frequently -- 108 times out of 207 reversals -- in Cook County cases in the past 20 years.
The close of a trial is when the pressure reaches its zenith, when even the most experienced prosecutors -- perhaps wearied by stress and fearful of an acquittal -- are overcome by adrenalin, sarcasm and fear of losing.
In the past 20 y years, prosecutors have been criticized for referring to defense lawyers as "slicksters" and "hired guns" and for branding defendants as "scum" and a "lying, raping, attempt-murdering dog." In one case, a conviction was reversed because the prosecutor asked the jury to remember, as they deliberated, that if they acquitted the defendant, he was "just an `L' ride" from their front door.
Erickson, who was an assistant Cook County state's attorney and then a judge before resigning to work for Devine, summed up how it happens.
"You've tried a tremendous case. You've got a ton of evidence. You've got an eyewitness. You've got a fingerprint. You've got a confession," he said.
"And then you get up in closing argument and you go nuts on the guy. You start saying things over and over that you don't have to say because you've proved it 12 times over. What you wind up with is an overkill process where your case is reversed and sent back."
Owen pursued victories with an almost religious fervor that was born of a loss in his second jury trial.
"It was an armed robbery and we lost," he recalls. "A year later, one of the defendants who had been acquitted in my case broke into a man's house and killed him. I felt responsible for the death of that man."
Owen prayed before closing arguments.
"I said, 'Lord, if this guy didn't do it, don't give me the strength to do this.' I was like a crusader and the Lord was on my side.
"All I cared about was making sure the defendant
the street," he says. "There ain't no appeal if I lose."
Trial and Error
Truth in Justice