Acquitted ex-cop taking next step
Push is for pardon to clear his name
By Maurice Possley; Chicago Tribune staff reporter
October 17, 2004
Nearly five years ago, Wilder "Ken" Berry started his life over after serving more than eight years in prison for a sexual assault that the evidence shows he did not commit.
Convicted in 1992 of kidnapping and sexual assault, Berry won a new trial because his defense lawyer failed to call witnesses who could have proved his innocence. On Feb. 1, 2000, after that second trial, a jury acquitted Berry after little more than two hours of deliberation.
In a state where tales of wrongfully convicted defendants struggling to rebuild their lives are common, Berry's post-prison life has been a success.
Since his acquittal, Berry has quietly emerged as a respected paralegal at Winston & Strawn, one of Chicago's biggest law firms.
On Tuesday, Berry will ask Gov. Rod Blagojevich to complete his comeback from prison. For the second time, Berry is seeking a pardon based on innocence.
"The ultimate duty of those of us who work within the system is to ensure that justice is done," states his clemency petition, prepared by Winston & Strawn attorney Kimball Anderson, who successfully, and without charge, helped Berry get his second trial and the acquittal. "This has not been fully achieved in this case.
"Although Mr. Berry is free, he still ... remains a marked man. A pardon based on innocence will finally clear his name and allow him to get his arrest records expunged."
Such a pardon would also allow Berry, 35, to seek compensation for the more than eight years he spent behind bars. It won't be a fortune. Anthony Porter, who was freed from Death Row in 2000, received about $145,000 for 18 years in prison--more than twice as long as Berry's confinement.
"It's not just about money," Berry said in an interview. "The main reason is to complete the exoneration process. The courts have recognized it. My jury and my peers have. I want to finalize this and finally clear my name.
"My grandma used to quote the Bible and say a good name is more precious than gold or silver, and it's true," he said.
Since his release and employment at Winston, Berry has won awards for working pro bono--without charge--from the Center for Disability and Elder Law, the Northern District of Illinois Federal Bar Association and from the law firm itself.
His work was cited by the Federal Bar Association for playing an important role in helping a former inmate at the Cook County Jail obtain a $175,000 damage award against the county because guards failed to protect the inmate from violence from other inmates.
When he was arrested in December 1991 on the charges of kidnapping and assaulting a woman on Chicago's South Side, Berry was a newly hired member of the University of Chicago police force. It was his first arrest, and he said from the beginning that his encounter with his accuser was consensual.
At trial, Berry was represented by an attorney who called no witnesses except Berry, and did no investigation on the case. In an opening statement to the jury, the attorney, Leo Fox, apologized and described the case as "open and shut."
After he was convicted and sentenced to 35 years in prison, Berry was sent to Stateville Correctional Center in Joliet, where he began working as a law clerk in the library. During his four years there, Berry was promoted to chief legal reference clerk and spent time doing legal research for himself and other inmates.
It was then that Berry wrote a letter, as many inmates do, to Winston & Strawn. The firm has a program in which lawyers work on cases of indigent clients for free. Anderson and two other lawyers, David Koropp and David Doyle, read the transcripts of Berry's trial and concluded that it had been unfair.
They filed a petition in federal court, and in 1999 U.S. District Judge Robert Gettleman set aside Berry's conviction, saying not only that Fox's performance was legally deficient, but "there is a real possibility that this man is innocent, and we don't see that very often."
Gettleman ruled that Fox, who had been disciplined in the past for lawyer misconduct, was a "liar" who never prepared for Berry's trial and failed to call witnesses who could have exonerated Berry.
He called Fox's performance "clueless," and added, "I am appalled at this guy. ... I really can't understand how Mr. Fox could be that negligent. It's really a sad commentary."
By then, Berry had moved to Hill Correctional Center in Galesburg, Ill., where he worked as a teaching assistant to prisoners. He also pursued his own education, obtaining a bachelor of general studies degree in social science through Roosevelt University. He was class valedictorian, according to his petition.
At the second trial, the victim testified again that Berry had abducted her off the street at shotgun point as she walked with her cousin and mother. She said Berry took her to his home, where he lived with his mother, and raped her in the garage and in a basement bedroom. She said he threatened her with a handgun while in the basement.
Berry testified that he did meet her on the street with her cousin and mother, but said she went willingly with him. They drove to his house, stopping twice along the way, and she never tried to leave, although she was left alone in the car with the motor running, he testified.
A friend of Berry's said he happened to drive by Berry's home when he drove up with the woman. They conversed, he said, and the woman leaned, fully clothed and appearing relaxed, against a porch railing.
But the woman testified she had been threatened with a handgun, and police said they had confiscated a handgun from Berry several days after the alleged attack. At the second trial, jurors heard evidence that Berry did not even receive the gun until 11 days after the woman said she was attacked.
After the alleged attack, Berry gave the woman his name and a telephone number. At the first trial, prosecutors argued the number was not working, but the petition states that Fox had evidence that showed Berry gave the woman "a paper with his first name and correct phone number immediately after having supposedly raped her," but never presented it to the jury.
The woman said she gave Berry her phone number.
The woman also confirmed that Berry's mother was home at the time she and Berry arrived. Other testimony would have shown that she was left alone in the basement on two occasions--once when Berry went upstairs to take a telephone call--and did not leave although there was an exit door, but Fox did not call the witnesses, the petition said.
At the end of that trial, a jury acquitted him. Some of the jurors remained afterward to give Berry congratulatory hugs.
After his release from prison, Berry worked for Chicago Catholic Charities as a mentor and guidance counselor at Garfield Alternative High School, 222 W. 45th Pl. In September 2000, he began working as a litigation paralegal at Winston.
That fall, he sought a pardon for the first time--a request that was rejected after Assistant Cook County State's Atty. Laura Morask, the prosecutor who handled Berry's second trial, argued against it.
The clemency petition says Morask, "apparently bitter from her defeat" at trial, made "reckless and untrue allegations" against Berry at the hearing, in an attempt to portray Berry as guilty.
After the Illinois Prisoner Review Board refused to grant the pardon, Berry concentrated on his work at Winston.
"Mr. Berry has devoted numerous hours to various pro bono and public interest law initiatives," the petition states. "He has re-established his life; he is giving back to the community, and he is trying to positively influence the lives of young men and women through mentoring and motivational speaking."
The petition notes that numerous wrongly convicted defendants have been granted pardons based on innocence, including men who were sentenced to death and then won acquittals after retrials.
The Cook County state's attorney's office plans to oppose the petition, however, according to a spokeswoman.
Despite losing so many years at a young age, Berry refuses to be bitter and instead is focused on making the most of the rest of his life.
"One thing I learned early on in my incarceration was that bitterness would be like a train derailing," Berry said. "I had to let it go. It would have torn me up. I might still be there if not for that."
