Saturday, December 03, 2005

Dugan Indicted; Birkett Still Dug In

Twenty-two years later the DuPage County State's Atty's. Office finally has the right man in the Jeanine Nicarico murder. But they still haven't got it right.

This nightmare of a case began on Feb. 25, 1983 when 10-year-old Jeanine Nicarico was kidnapped from her Naperville home, then brutally raped and murdered. For an excellent brief history of the case, go here.

Earlier this year I erred when writing that Joe Birkett had played a significant role in the mis-prosecution of Rolando Cruz. Birkett's people complained and I re-checked the facts. What I found suggested to me that Birkett had acted especially honorably. The only time he touched the case was in the third prosecution, when he was a highly-regarded assistant in the office. His behavior suggested he had walked a very difficult line; quietly trying to put an end to the mis-prosecution while protecting the honor of the office.

As State's Atty., Birkett was criticized for waiting so long after obtaining indisputable evidence of Brian Dugan's guilt to hand down an indictment. I thought that after two decades of malicious bumbling by his predecessors he wanted to get every aspect of this case exactly right.

When he did finally announce an indictment I expected a statement something like this...

-Today the grand jury has indicted Brian Dugan for the rape and murder of Jeanine Nicarico. All the DNA evidence, all the physical evidence, and the overwhelming bulk of the circumstantial evidence say that Dugan brutally raped and murdered that little girl almost 23 years ago.

-It has been a terrible and prolonged ordeal for the Nicarico family. I'm here to tell them today, we have the right man. We will get justice for you and your little girl.

-Mistakes have been made in this case. Those mistakes have been well-publicized and I won't revisit them except to say I believe those who made mistakes were motivated by a zeal to get justice for Jeanine.

-I have thought long and hard about the history of this case. To secure justice and protect the community we must convict guilty men. But we must never let our zeal to convict lead us into compounding a criminal's heinous act with an injustice of our own.

-Today we have the right man. I assure you we will get both justice and a conviction. But I also assure you that as long as I am your state's attorney justice will be our only end. Investigation, prosecution, conviction - these are all tools to reach that end. If one of our tools is flawed we will fix it. What we will never do is allow a flawed tool to distort justice, itself.

-For the Nicaricos, for the fine men and women in law enforcement who have dedicated their lives to protecting our community, for all the people who live and work in our community we pledge ourselves to simple justice - no more than that, but never less. Thank you.

But that's not what Birkett said last week. Not even close. No, after two decades and three overturned trials relentlessly trying to put to death a man any reasonable person knew 20 years ago to be innocent; after successfully arguing to keep juries in the dark about evidence that would have revealed that innocence; after the sole piece of evidence against Cruz, the 'vision' statement, was revealed to be a fraud; what Birkett had to say was that maybe the people who tried to railroad Cruz had a point.

Some may say Birkett could not offer even this mild concession for fear of lawsuits. Won't work. Both the criminal and civil suits against some of the people involved in the mis-prosecution have already worked their way through the courts.

Others argue that all three of the original defendants were mopes. True but irrelevant. Being a mope is not a capital offense; a fact for which some involved in the Cruz prosecution have reason to be profoundly grateful.

Birkett and the DuPage prosecutor's office will pay a price for their continued intransigence. If I were seated on a DuPage County Criminal Jury I would wonder what the prosecutor was manufacturing and what he was hiding from me. After all, they manufactured evidence before to try to send an innocent man to the death chamber. They successfully withheld compelling evidence of his innocence from juries. And when the day finally came when they could make it right the chief prosecutor was utterly, almost defiantly, unrepentant. I could not vote to convict in DuPage no matter how compelling the state's case, not because a case lacked credibility, but because the prosecutor's office lacks it.

Joe Birkett needed to accomplish two things last week: to indict the right man and to demonstrate that his office knows the difference between right and wrong. He got the former right. He didn't even try for the latter. And justice remains an orphan in DuPage County.

14 comments:

Anonymous,  8:49 PM  

This is why Jim Ryan lost for Governor.

Anonymous,  11:46 PM  

The saddest thing is the little girl who got killed.

The second saddest thing is that other people could of got killed and spent years of their life in jail for a crime apparentely they did not commit.

There is a lot of racism in DuPage.

Anonymous,  11:05 AM  

Why is the 17th district shaped like a crab?
it indicates corruption, according to governmental sources?

are you the same arrogant charlie johnston who headed up the zinga for congress campaing?

sincerely,
Anon

Charlie Johnston 11:33 AM  

I am the same Charlie Johnston, lively as ever (that is what you really mean by arrogant, isn't it?). And neither i, nor Andrea Zinga, created that monstrously misshapen district.

Anonymous,  12:00 PM  

Itis amazing that some still bellieve the Brickhead was not all over this case from the beginning. There are plenty of people who will tell you about him knocki on doors with the cops and investigators
The office is not that big and there is not that much action so let's get real
If the voters in DuPage want him so be it, but stay away from the rest of ILlinois.

Anonymous,  12:35 PM  

Hey Charlie, is your gal Zinga really gonna try and get 38% again, or is she going to run for the State Senate where she might have a chance of getting 45%?

Anonymous,  1:06 PM  

Cruz a "mope" Charlie. THAT is spin. He committed perjury and obstruction of justice in this case. Those are felonies. And he admitted a bunch of burglaries. And that he was gang member.
The DuPage 7 was acquitted, several on directed verdicts. Why aren't you calling on the Special Prosecutor to apologize for his wrongful indictments?

Charlie Johnston 2:22 PM  

If the case was so clear why did DuPage settle for $3.5 million? Yes, the DuPage Seven were acquitted in criminal court where 'beyond a reasonable doubt' is the standard. DuPage didn't want to take any more chances than they had to in Civil Court where a 'prepoderance of the evidence' is the standard.

Also, apparently there are some who wish to make their comments on other topics. If someone wants me to address a specific topic, go ahead and ask. But for posters who want to take a thread and relentlessly talk about something that is different than the topic in question, in the future I will delete such non sequiturs.

grand old partisan 3:28 PM  

Good points, but one thing I take issue with:

"a man any reasonable person knew 20 years ago to be innocent"

I'm certainly not saying that the DuPage State's Attorney's office didn't make mistakes; they obviously did. But it's not like Jim Ryan or Joe Birkett themselves convicted Cruz and sentences him to death. He was found guilty beyond a reasonable doubt three times by three different juries. So, not to sound glib, but there were at least 36 reasonable people who believed Cruz was guilty.

Just a thought

Anonymous,  3:49 PM  

3.5 million is a pittance in a case of this magnitude. It's insurance money. Ford Heights was 40 million. The real question is why Cruz and company would take $3.5 million with all that media coverage? they originally asked for 100 million. It's because he had no case.

Charlie Johnston 4:52 PM  

Appreciate your comments, Grand Old Partisan, but I addressed that in the piece. I very strongly trust the judgment of criminal juries, provided they are given the facts. In this case the credible admission of another party was suppressed. The juries never heard it. The 'vision' statement, which appeared out of nowhere just before the first trial - with NO documentation and NO confirmation by other investigators working the case - was the key element against Cruz. Even when DNA evidence confirmed Dugan's admission, prosecutors were still trying to nail Cruz.

If a prosecutor charges you with a crime committed in Peoria, then evidence surfaces proving you were in Springfield at the time the crime was committed, the prosecutor needs to drop the charges; not move to prevent the jury from ever finding out you were in Springfield when the crime was committed. If, lacking any physical evidence at all, he gets an investigator to say at the last minute you made a confession - which that investigator never, ever wrote down or told anyone else about until it was time for trial - that should not be admissable.

That is what is so egregious in this case. If a prosecutor's office can make up evidence of guilt and bury evidence of innocence anyone can be convicted of anything. That's how the old Soviet system worked. It is not how ours is supposed to.

As for anon 3:49, I can't say I've ever heard $3.5 million referred to as chump change before.

Anonymous,  7:18 PM  

Still wondering if the G can tap dance on BrickheadJoe's head. Then we might find out who knew what when.
We all the the Dupage 7 took a dive in the trail

Maybe those Dearboarn dandies could doing some asking before they hope on the train

Anonymous,  7:38 AM  

How come everyone focuses on Jim Ryan and Joe Birkett and the Cruz case when other Rich Daley as State's Attorney you had far more death penalty and other cases of egregious prosecutorial misconduct and getting the wrong people.

Anonymous,  3:29 PM  

I knew someone on the original Nicarico grand jury (at the time the longest running Grand Jury in Illinois history). It was told to me by this individual that this cas was a railroad job from day one. The plea to them at the end of the Grand Jury was "You have been here for 1 1/2 years, so just indict these guys then we will have something to show for our effort. If they are not guilty the justice system will take care of that." We all know how that turned out. Joe Birkett makes me sick, when I consider all the money that has been wasted on this trial when Dugan has been willing to confess for 11 years.

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