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.