Prosecutors: The Nation’s Most Protected Criminal Class

In the 1990s, it had become clear that many of those on Death Row or serving life sentences for murder or other very serious crimes of violence had been wrongfully convicted. Northwestern University Law School hosted a symbosium attended by about a thousand people and to which over 30 of the 75 people freed from Death Row also were in attendance. The state of Illinois had gotten to the point where the number freed from Death Row matched the number executed over a comparable period. Swayed by the symbosium exposure of serious miscarriages of justice and widely publicized cases of railroaded Illinois Death Row inmates, Governor George Ryan declared a moritorium on capital punishment and emptied out the state’s Death Row cells.

As a result of the open acknowledgment that Illinois’s criminal justice was criminally broken, the Chicago Tribune did a series on wrongful convictions. The Tribune discovered that among the chief causes of wrongful convictions were eyewitness misidentifications, prison inmate “snitch” testimony, use of highly unreliable hair evidence, and false confessions fostered by aggressive and prolonged police interrogations. But the Tribune also found that a major cause of wrongful convictions was prosecutorial misconduct, which ranged all the way up to criminal in nature. Prosecutors were found to have withheld exculpatory evidence from defense attorneys, manufactured evidence, coached witnesses to give false testimony and engaged in other nefarious activities to secure convictions.

One thing the Tribune did not find was a single conviction of a prosecutor who railroaded a person to a cell on Death Row or to life in prison.

I will touch on two specific aspects of prosecutorial subversion of justice and an ongoing denial of defense attorney access to possible exculpatory evidence: 1) the Rolando Cruz case; 2) the Wilmington Ten; and 3) DNA identifications in CODIS.

I. The Rolando Cruz Case
Rolando Cruz was still a teenager when police received a tip that Cruz had been talking a lot about the abduction, rape and murder of nine-year-old Jeanine Nicarico in a Chicago, Illinos suburb. While Cruz was riding in a car with police detectives, he allegedly revealed a dream or “vision” he had, which described a few circumstances of the Nicarico case. Although there was no physical evidence nor eyewitness identifications that tied Cruz to the crime, he was convicted and the conviction overturned by the Illinois Supreme Court, because he had been tried in tandem with a codefendent, also convicted without a shred of physical evidence.

After Cruz was convicted a second time, his conviction was overturned a second time, due to the tenuous nature of the evidence against him and the entrance into the case of Brian Dugan. Dugan, in prison for the rape and murder of a young girl and a woman in her twenties, confessed to the abduction, rape and murder of Jeanine Nicarico. Dugan would undoubtedly have killed a second girl if she had not escaped from his car and successfully hid while Dugan was corralling the other of two girls he discovered riding bikes.

Brian Dugan was put in a state police car and told to direct the officers to the Nicarico residence, which he did unerringly. Dugan subsequently directed the state troopers to the forest preserve where the body had been found. Besides this damaging ability of Dugan to trace the crime route, two tollway workers had seen a car matching Dugan’s vehicle, right down to a missing hubcap, being driven in the vicinity where the body was found.

TYhe crowning evidence against Dugan should have been the results of DNA evidence which excluded Rolando Cruz and his codefendent in the first trial, but not Brian Dugan. What did the prosecutors do? They argued that Cruz and Dugan could have committed the crime together! An examination of Dugan’s diaries did not contain any mention of Rolando Cruz and interviews of all the people mentioned in the diaries failed to reveal any sighting of Cruz and Dugan together.

During Rolando Cruz’s third trial, the police official to whom the Cruz “vision” was related, gave a date for receipt of the report. When family members told the official that the family was in Florida at the time, he checked his records and found that he had used his credit card on that date. That was enough for the judge, who stopped the trial on the basis of insufficient evidence and Cruz’s long prison ordeal ended.

When the Chicago Tribune did a massive complilation of the Cruz trial records, the newspaper speculated that the Cruz “vision” may have been wrongfully attributed to him, because the son of the Nicarico housekeeper told police he had a vision of a body lying near a stream.

More than a decade after Roalnde Cruz became a free man, Brian Dugan was convicted of the murder of Jeanine Nicarico.

Seven prosecutors and/or police officials were indicted for their role in a tragic miscarriage of justice. All were acquitted and at least some of the members of the jury joined the victory celebration.

II. The Wilmington Ten
The conviction of the Wilmington Ten was overturned after three key witnesses admitted in 1977 that prosecutors had bribed them to give false testimony against the defendents. But it was the notes of prosecutor Jay Stroud, discovered by historian Tinothy Tyson in February 2012, that led to the long-overdue pardon. Next to the names of potential jurors, Stroud had scribbled phrases like “Probably KKK” and “sensible, Uncle Tom type.”

Governor Beverly Purdue said the evidence was proof that “these convictions were tainted by naked racism.” [1]

The pardon system itself shows a pattern of racial inequality, as a recent study by ProPublica found that with presidential pardons, white applicants were nearly four times more likely to receive one than people of color. [2]

III. Access to CODIS
Prosecutors in most states have exclusive access to CODIS, the national database of more than 11 million DNA samples. Attorneys digging deep to prove the innocence of a client have “found untested DNA that would exonerate the client. But when they returned to court to ask for the right to test the new evidence, they are told judges don’t have the power to re-test.” ]3]

“Governmental and judicial watchdog groups maintain that hundreds and maybe thousands of prisoners couuld substantiate their innocence if only they could tap the CODIS.” Groups like the Innocence Project estimate that in the last 15 years, some 300 prisoners have been given access to CODIS and have won their freedom. [4]

University of Virginia Law Professor Brandon Garrett puts the situation in a nutshell: “(Prosecutors) are attached to their convictions, and they don’t want their work called into question.”

Footnotes

[1] Christy Thompson, “Noted,” The Nation, January 28, 2013.

[2] Ibid.

[3] Diane Dimond, “DNA Database Limits Unfair,” The Albuquerque Journal, January 26, 2013.

[4] Ibid.

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