Eric Zorn, reporter/columnist for the Chicago Tribune, has been following the Cruz case. In a series of scathing articles, he has taken apart the prosecution's case, focusing especially on the lack of evidence and the gross prosecutorial errors. Below are *excerpts* from some of his recent columns, which appear on page 1 of the Tribune's Metro section. ============================================================================== Date: Wednesday, October 25, 1995 Source: Eric Zorn. Section: METRO CHICAGO Parts: 1 Copyright Chicago Tribune CRUZ PROSECUTOR OFFER CASE OF TRUTH STRANGER THAN FICTION What was already perhaps the most troubling crime in the history of DuPage County became certainly its strangest Tuesday in the fragmentary account offered by the lead prosecutor in his opening argument in the Rolando Cruz trial. As is now well-known, someone broke into the Nicarico residence in Naperville early on a February afternoon in 1983 and abducted 10-year-old Jeanine who was home alone. She was raped, bludgeoned and left dead in a wooded area. What was particularly troubling at the time was how the crime shattered the illusion that tranquil suburbia and the locked doors of home offered protection from the most vile elements of humanity. For traumatized parents and children throughout the area it was "the boogeyman come to life," as one lawyer once put it. And what is strange about it now is the theory of the crime that remained after assistant state's attorney John Kinsella completed his nearly 2 1/2-hour opening argument to Judge Ronald Mehling: Evidently, a gang of burglars including Cruz came to Naperville from Aurora, kicked in the front door at the Nicaricos' and found the girl. They kidnapped her, stole nothing, and took her to an undetermined location where they presented her, like an offering to a primitive potentate, to sociopathic rapist and murderer Brian Dugan. Dugan then sodomized the girl, at which point she was taken away and murdered out of his presence. Following this, some undetermined person or persons dumped the body. What makes this scenario even more uncommon is that Cruz and the other alleged burglars, once police began questioning them, never even so much as mentioned Dugan's name, even after three of them were charged and two were convicted and were sent to Death Row in early 1985. If this account reflects the facts, which it must in Kinsella's construct, this amounts to the weirdest, most elaborately orchestrated murder and conspiracy in the annals of crime. Kinsella didn't outline his story that way, of course, probably in fear that it would cause a raspberry buzzer to sound and a trap door to open under his feet. Rather what he did was to try to reconcile an old prosecution argument from Cruz's 1990 trial with new scientific evidence, thus eliminating all other possibilities and leaving the judge and spectators to read between the lines. ....................... So, if we are to put all this together, the narrative of the crime implicit in Kinsella's argument places Dugan at some mysterious location where his participation and observation is limited to the rape. Kinsella offered but one escape from this conclusion when he told the judge that Dugan's errors in describing the Nicarico home show, at the least, that "if he was (there), he was not there alone." It would be a strange circumstance indeed for a man's alleged companions to cause him, by their mere presence, to miscount handrails, forget color schemes and misremember exterior decor. More strange than what must be the strangest crime story ever told in the county? By the time the rest of this trial has unfolded, that question may seem ordinary. ============================================================================== Date: Sunday, October 22, 1995 Source: Eric Zorn. Section: METRO CHICAGO Parts: 1 Copyright Chicago Tribune IN CRUZ CASE, STATE HAS HOLE IN ITS ACE, NOT ACE IN THE HOLE In a folder on my desk is never-before revealed evidence in the investigation into the murder of Jeanine Nicarico. It is evidence that ought to blow the case wide open-as long as we don't set our standards too high. One element is a signed statement from a 56-year-old Illinois man who indicates that convicted child killer Brian Dugan personally and unconditionally admitted to him in 1989 that he, Dugan, alone abducted, raped and murdered the 10-year-old Naperville girl in 1983. The witness added that Dugan told him, "The Mexican (then) on Death Row (for the crime) had nothing to do with it." ............... The case against Cruz contains no physical evidence or eyewitness testimony, and is based instead on witnesses' claims that Cruz said incriminating things or otherwise admitted a role in the killing. Dugan, we know, was involved in the crime. He admits it, prosecutors vaguely acknowledge it, circumstances suggest it, and DNA evidence all but proves it. ......................... So now, here, on my desk, is just the sort of evidence against Dugan you'd think they've been waiting for. It also includes a document detailing a statement from a 36-year-old Illinois man, who says he heard a third person, a man never before connected to the case, confess-with a few inaccurate details, to be sure-that he and Dugan together assaulted and killed the girl. No need for me to turn this evidence over to DuPage County, though. DuPage County is the source. It is their documents that show detectives and prosecutors interviewed the 56-year-old informant two years ago and the 36-year-old eight years ago. ................... The two above, whose testimony exonerates Cruz, do not, of course, appear on the list of prosecution witnesses. Neither does the name of a 39-year-old prison inmate, a copy of whose 1991 letter to defense attorneys implicating Dugan is also on my desk, nor the name of a 45-year-old inmate whose account of Dugan's repeated admissions to being the lone killer is in a copy of a defense memorandum based on a 1992 prison interview. ................... The defense, however, won't be calling these men either. Cruz's attorneys have made the risky but ethically consistent decision not to fight snitches with counter-snitches. While putting them on the stand would probably weaken the testimony of prosecution informants, it also would undercut their larger argument that prison informants are sleazy, utterly untrustworthy amoral opportunists whose interest in the cause of justice is, by their very place of residence, highly suspect, and whose use should be beneath our standards. The prosecutors have never staked a claim to high standards in this case and so will face no such tricky choice. Look for them to produce this "new" evidence much later, if and when it ever becomes convenient for them to prosecute Brian Dugan, the real and only killer of poor Jeanine Nicarico. ============================================================================== Date: Thursday, October 19, 1995 Source: Eric Zorn. Section: METRO CHICAGO Copyright Chicago Tribune STILL SOME SUSPENSE AS CRUZ'S 3RD TRIAL IS READY TO BEGIN The third trial of Rolando Cruz will begin Tuesday in Wheaton, and it is by now as much a part of the ritual as black robes on the judge for authorities to come up with a last-minute surprise to boost their case. ((Summary of many errors of prosecution omitted)) Four things are clear right now: 1. Prosecutors need something new. They have, as ever, no physical or eyewitness evidence against Cruz. Several key witnesses from the last trial have recanted, and a videotape has just surfaced showing that the main investigator lied on a police report in the case. Also, the Illinois Supreme Court has blasted their 1990 use of Erma Rodriguez as a "fundamental error," has prevented them from using bloodhound evidence as they did in the last trial and has directed the judge to consider Dugan's formerly excluded and highly suggestive record of sex crimes. 2. More jailhouse informants won't be enough. Three of the five citizen witnesses who testified in the last trial that Cruz confessed in some way to them were men who'd been incarcerated with him. One improved significantly on the story he'd told at the first trial. Another was a Death Row inmate blatantly angling for a lighter sentence. The third now says he lied. Even if DuPage does put on new snitches, such witnesses are notoriously opportunistic and unreliable. And it is becoming harder and harder to believe that Cruz, having been repeatedly victimized by fellow inmates, would continue to blab haphazardly of his guilt. 3. Brian Dugan won't testify. Defense attorneys once feared that prosecutors might try to use the leverage they still have on Dugan-he plea-bargained on his other murders and the only way he will ever be executed will be if Du Page convicts him in Nicarico-to persuade him to change his story, which is that he alone committed the crime, and implicate Cruz. Indeed, three representatives from DuPage approached Dugan on Sept. 15 at Joliet Correctional Center, where he is serving life without parole. They floated the subject of gang intimidation, according to Tom McCulloch, Dugan's lawyer, behind whose back the meeting took place. The inference was that Dugan could testify that he never told on Cruz until now out of fear of reprisals from Hispanic prison gangs. Dugan demurred. DuPage's written report on the meeting says that Dugan volunteered to say anything prosecutors wanted if they would give him immunity from the death penalty. McCulloch said Dugan denies making any such offer. But whether he did or he didn't, that DuPage made it part of the formal record instead of quietly taking him up on it shows that they now intend not to use Dugan but to attack him and discredit his claim to have acted alone. 4. Whatever surprise pops up this go 'round will be dwarfed by the ongoing surprise-that public employees ostensibly devoted to justice have behaved so irresponsibly in this case for so long. ============================================================================== Date: Wednesday, October 18, 1995 Source: Eric Zorn. Section: METRO CHICAGO Copyright Chicago Tribune DARK TRUTHS BURIED IN NICARICO CASE MAY YET SEE LIGHT For now, we can only imagine the sick, rapidly-dropping-elevator feeling in the guts of certain investigators and prosecutors in DuPage County in late June 1985, when a dark truth hove into view: They'd convicted the wrong men of a terrible murder and might someday have to explain how it happened. That month a career burglar from East Aurora, Brian Dugan, then 28, was arrested and was being held in LaSalle County based on compelling evidence that he'd abducted, sodomized and beaten to death a little girl in Somanauk. ((Summary of DuPage County Sheriff's Warren Wilkosz's early investigation of Brian Dugan and Dugan's link to case)) He called the Illinois Department of Corrections and learned that Dugan had been paroled from prison six months prior to the Nicarico murder. Then he dug around and discovered where Dugan had been employed at the time of the murder, went to the business and discovered, lo, that Dugan had taken that day off. Wilkosz also learned through motor-vehicle records that Dugan had then owned a boxy, dark-green American sedan-similar in many ways to the car driven by a lone, white male in his mid 20s or early 30s spotted by witnesses near the crime scene. The very next morning, Wilkosz went to the LaSalle County Jail and met with Dugan. He told him why he was there, and that he wanted Dugan's alibi for the day of the Nicarico murder. Dugan had none and said he wouldn't speak further to Wilkosz without an attorney present. ........................ Wilkosz's investigation stopped dead on June 28. There is no evidence that he or any of those in the sheriff's department or the state's attorney's office whom he may have told of the investigation did anything other than hold their collective breaths and hope Dugan went away, like a bad dream. If we're lucky, they must have thought, no one will ever look into how we put those stiffs on Death Row or learn that we had Dugan in custody in mid-1983 on a burglary charge, failed to see the connection to Nicarico or hold him on bond, and released him to kill two other innocents. ........................ The Illinois State Police entered the investigation several days later, but for four years, DuPage concealed from them the fact of their visit and the numerous details they'd learned. Wilkosz, meanwhile, didn't write up a report of his investigation until the following year. A decade later, though, the DNA evidence has conclusively implicated Dugan, and the dark truth looms closer than ever. ============================================================================= Date: Sunday, October 15, 1995 Source: Eric Zorn. Section: METRO CHICAGO Copyright Chicago Tribune TAPE SINKS DUPAGE COP DEEPER INTO THE OOZE OF LIES More lies. The dissembling bumblers in DuPage County who have for 12 years been bringing disgrace upon themselves and their offices by piling falsehood upon speculation upon more falsehood in prosecuting Rolando Cruz and Alex Hernandez for a crime they did not commit still have not learned their lesson. Now one of them has been caught on tape. A defense motion filed Friday broke the news that a security camera in a northwest suburban pawn shop had recorded a 58-minute, Aug. 10 interview by DuPage County Sheriff's Detective Warren Wilkosz, long the major investigator into the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville. Wilkosz was interviewing shop owner Steven Pecoraro, a witness who once testified that he heard Cruz incriminate himself but who had recanted. The tape, a copy of which was provided by Pecoraro's attorney, Roberta Samotny, shows Wilkosz feeding misinformation to Pecoraro in an attempt to persuade him of Cruz's guilt: Wilkosz says Cruz keeps "telling people he did it. Like 10 people." This is false, even if you count every disreputable jailhouse snitch that prosecutors have put on the stand. At Cruz's second trial in 1990, the state found only three witnesses to make that claim, and one was Pecoraro, who says he spun the tale to get better treatment when he was jailed 10 years ago. ((Excerpts from the tape and discussion of them)) Now that the surveillance tape has surfaced to shatter his credibility, these witness claims ring more true than ever. And that federal probe he was conjuring up is starting to sound like a better and better idea. ============================================================================ Date: Wednesday, October 11, 1995 Source: Eric Zorn. Section: METRO CHICAGO Copyright Chicago Tribune LATEST RECANTATION IN CRUZ CASE SOWS NEW SEEDS OF DOUBT Steve Schmitt, 26, a northwest suburban tool-and-die maker, answered the door of his apartment early on the evening of July 21, 1994, and found a DuPage County sheriff's detective and an assistant state's attorney wanting to talk to him. He said he guessed quickly why they were there. One week earlier, it had been all over the local news that the Illinois Supreme Court had overturned the murder conviction of Rolando Cruz, a man Schmitt had spoken often with when both were in the DuPage County Jail in 1989 as Cruz awaited his second trial on charges that he helped abduct, rape and murder 10-year-old Jeanine Nicarico of Naperville in 1983. Schmitt said he told the men he had no inside knowledge of the Cruz case; that Cruz had never said anything to implicate himself in the crime. Schmitt said the prosecutor, Joe Birkett, and the detective, Warren Wilkosz, told him they had sources, whom they wouldn't identify, who said otherwise. "They said, `If you won't give a statement, you could get arrested for withholding evidence,' " Schmitt said. "And, I thought, `Well, I don't need to get arrested for anything."' He'd been steadily employed and out of trouble for several years, he said. "I was really uncomfortable with those guys because of my past. It made me nervous. I just did what they said." ...................... "They were smooth," said Schmitt who, for now, remains on the list of possible prosecution witnesses. "They knew what they were doing. But the truth is that Cruz always told me he didn't do it, that he was innocent. I never heard him admit anything." ================================================================================ Date: Wednesday, September 27, 1995 Source: Eric Zorn. Section: CHICAGOLAND Copyright Chicago Tribune NICARICO PROBE STARTED OUT RIGHT, TURNED DEAD WRONG Less than a week after the abduction of 10-year Jeanine Nicarico from her Naperville home in early 1983, four days after her battered body was found near the Illinois Prairie Path, investigators were confident they'd solve the hideous crime. "We will identify the subject responsible," said DuPage County Sheriff's Department Deputy Chief Robert Soucek, a member of the law-enforcement task force then working the case. "We urge him to do the right thing and come forward." "According to the FBI," said a story in the Tribune that same week, ". . . someone apparently broke down the front door of the split-level home" and took the girl. Witnesses had reported seeing on the day of the abduction a lone, white male in his late 20s or early 30s driving a boxy, dark-green sedan missing a hubcap near where her body was found, and a man matching a similar description in the Nicaricos' neighborhood. Police released an artist's sketch of the man. ...................... Twelve and a half years later, everyone now knows for sure who they were looking for: Brian Dugan of Aurora. Then 26, he had a record for door-kick burglaries and had been arrested in DuPage for an earlier sexual attack on a 10-year-old girl. He drove a green Plymouth Volare that was missing a hubcap; his time cards showed he was absent on the day of the murder and, now, the results of DNA tests of semen samples conducted for prosecutors and released Friday show, to a near certainty, that Dugan raped Jeanine Nicarico at about the time of her death. Further, Dugan has offered a conditional but full confession to committing this crime alone. It would seem that DuPage County State's Atty. Anthony Peccarelli is a shoo-in for the Man Most in Need of a Big Red Ink Stamp Saying "CASE CLOSED" award. ((Allusion to evidence given in previous trial that shoe prints found at the scene were Cruz's)) This was a lie: The prints came from women's size 6 1/2 Nikes, at least 3 1/2 sizes smaller than the shoes that would fit Cruz. They were almost certainly made by neighborhood kids searching for Jeanine as determinedly as law-enforcement officials began searching for a lone, sadistic killer. What they must do now is admit the obvious. They were right in the first place. ============================================================================= Date: Sunday, September 24, 1995 Source: Eric Zorn. Section: METRO CHICAGO Copyright Chicago Tribune LAST THEORY LEFT IN NICARICO CASE IS OFFENSE TO REASON ((Summary of the Cruz case and prosecution's refusal to consider Brian Dugan as a suspect)) But now we know how: New DNA test results revealed Friday show to a near-certainty that Dugan alone sodomized the girl before her death. Prosecutors put on their shades. This new fact is "not inconsistent" with their current theory of the case, they said. What is that theory? They won't say. But even giving them every benefit of the doubt, their theory has to look something like this: In February 1983, Dugan, a then 26-year-old white man, and two Hispanics, Cruz, then 19, and Hernandez, then 18, went to Naperville from Aurora to do a daytime burglary. These men and perhaps others broke into the Nicarico home, found the little girl alone, abducted her and neither took nor disturbed anything else. Dugan raped her. She was then bludgeoned to death and her body was dumped by the Illinois Prairie Path. It was the kind of depraved crime that is almost always done by a lone pervert, but Cruz and Hernandez came forward separately to tell detectives stories suggesting a group was involved. Most of the stories were clearly false and implicated people who had nothing to do with it. But several things they allegedly said were incriminating. The two eventually became suspects, were indicted, tried, convicted and sent to Death Row. They never ratted on Dugan, the rapist, the white guy, the likely ringleader. Not in all their wild inventions. Not in grand jury testimony. Not during interrogations after their arrests. Not after they were convicted and might have tried to cut a deal to avoid the gallows. Then, more than two years after the Nicarico murder, Dugan-the only one of the three with a prior history of violence and sex crimes-was arrested for abducting, raping and killing a little girl. No witness has ever testified to seeing Dugan with Cruz or Hernandez at any time. No one says they were friends. In fact, even Cruz and Hernandez barely knew each other. State police interviews with scores of people whose names were found in Dugan's address book at the time of his arrest turned up no one who could link the three. Even so, Cruz and Hernandez, separately incarcerated, continued protecting Dugan and refusing even to implicate each other. And when Dugan confessed to the Nicarico slaying, he didn't implicate the other two during extensive plea negotiations. End of theory. It is, obviously, worse than unbelievable. It is offensive to common sense. Even the tightest of friends or stoutest of mobsters couldn't and wouldn't hold such a conspiracy of silence together for long, and these three lowlifes probably didn't even know each other. What's left for the prosecutors is a pathetic sliver of a shadow in which to hide from the light of truth, now blinding, about not only Dugan but also about those responsible for the vicious prosecution of Cruz and Hernandez. ------------------------ This excerpt was obtained from the Chicago Tribune's archives in the Newstand section of AMERICA ONLINE (aol.com). For more information about the Tribune's aol.com services, contact: TribLetter@aol.com Additional information about Chicago Tribune electronic resources can be found on page 2 of the daily Tribune.