JUDGE SAYS DUPAGE 7 TO BE TRIED TOGETHER
4 DEFENDANTS LOSE BID TO SHIFT VENUE  

Source: Chicago Tribune, February 17 (Metro: p 1)
By Ted Gregory and Janan Hanna, Tribune Staff Writers.  

   Four DuPage County sheriff's officers and three former prosecutors charged
with framing Rolando Cruz for a 1983 slaying will go to trial in DuPage as one
group, a judge decided Tuesday.

   After a 90-minute closed-door session, during which lawyers argued over
whether to move the trials of four defendants to another county, Circuit Judge
William A. Kelly said a rigorous jury selection should ensure that a fair jury
is selected.

   "With the questionnaire we have and the thoughtful questioning that will
take place," Kelly said, "I'm sure we'll be able to pick an impartial jury."

   But Kelly did not slam the door on a change of venue, suggesting he would
reconsider such a request if jury selection takes too long.

   "If we can't pick a jury in this county, we're going to know that," Kelly
said.

   The judge also said he would consider increasing the number of dismissals
of potential jurors given to defense attorneys.

   In making his decision, the judge rejected requests by former Cruz
prosecutor Patrick J. King Jr., DuPage County Sheriff's Lt. James T. Montesano
and Sheriff's Detectives Dennis Kurzawa and Thomas E. Vosburgh. Lawyers for
those defendants contended that pretrial publicity, particularly a Tribune
series on prosecutorial misconduct published the week before jury selection
was to have begun, tainted prospective jurors.

   Two other defendants, former prosecutors Thomas L. Knight and Robert K.
Kilander, had planned to remain in DuPage for their trials. The seventh
defendant, Sheriff's Lt. Robert L. Winkler, is asking the judge, not a jury,
to determine his fate at trial. A bench trial can proceed simultaneously with
a jury trial of co-defendants.

   The seven are charged with manufacturing evidence to obtain a conviction
against Cruz and concealing evidence that may have exonerated him.

   Cruz was convicted twice in the kidnapping, rape and killing of Jeanine
Nicarico, 10, of Naperville Township. After both convictions, he was sentenced
to death.

   Both convictions were reversed by the state Supreme Court, and Cruz won
acquittal in the middle of his third trial in November 1995. His exoneration
led to a grand jury investigation that produced the indictments of the seven
men in December 1996.

   After defense attorneys complained of the pretrial publicity in a January
hearing on the DuPage 7 case, Kelly delayed the scheduled Jan. 19 start of the
trial. The new date for jury selection to begin is March 9.

   "I'm disappointed, very disappointed," said defense attorney Terence
Gillespie, representing Kurzawa. Gillespie had been the first attorney to seek
a change of venue.

   "On the other hand," Gillespie added, "we'll be ready for trial, and we
expect to win this case."

   Tuesday's hearing was the second consecutive court session that Kelly
closed to the public. He shut the public out of a Jan. 21 hearing in which
attorneys discussed changing venue for the trial.

   "There is a delicate balance here between the freedom of the press and
defendants' right to a fair trial," Kelly said Tuesday.

   "The right of the defendants to a fair trial must take precedence," Kelly
said, adding that pretrial publicity in this case has been "very volatile."

   Kelly set the next hearing in the case for Feb. 25, when attorneys are
expected to argue about a different approach to presenting transcripts from
previous trials.

   Special Prosecutor William J. Kunkle Jr. is proposing to bring professional
actors to court at trial to read aloud to jurors excerpts of transcripts from
previous Cruz trials and hearings that are germane to allegations in the
DuPage 7 case.

   The 10 to 12 actors would read excerpts in which the defendants are
witnesses or interrogators, Kunkle said. Each actor would play a different
role, providing jurors a clearer view of each defendant's acts, Kunkle said.

   Typically, attorneys would read the transcripts into the record in a
monotone, Kunkle explained. Reading lengthy exchanges between a questioner and
a witness--both of whom may be defendants--in that manner could confuse
jurors, Kunkle added.

   Defense attorneys oppose the request, fearing what Montesano's attorney,
Joseph Laraia, called "the risk of actors being actors." Laraia and other
defense attorneys said the actors' theatrical delivery unfairly could
influence the interpretation of evidence by the jurors.

   Loyola University Chicago law professor Jamie Carey said the approach "is
not unprecedented at all" and is used primarily in civil lawsuits.

   Attorneys for the defendants may prefer the actors, provided the judge
strongly warns them to read the transcripts dryly, Carey said.

   Using actors would prevent Kunkle and his associates from enhancing their
cases by reading portions of the transcripts with emphasis, Carey said.

   "I think it's kind of enlightened," added Carey, a former Cook County
deputy public defender, "and I think a careful judge can fashion a workable
compromise."

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