Presumed Guilty : AN ILLINOIS MURDER CASE BECAME A TEST OF CONSCIENCE INSIDE THE SYSTEM

JOHN SAM FIRST HEARD THE NEWS IN MARCH WHILE HE WAS DRIVING to work in the outskirts of Chicago, listening to the radio. The excited reporter was talking too fast, breathlessly biting off words, but Sam managed to absorb the gist of the story.

A young Illinois assistant attorney general named Mary Brigid Kenney had resigned in protest after deciding the wrong men stood convicted of 10-year-old Jeanine Nicarico’s rape and murder over in suburban DuPage County. The trials of Rolando Cruz and Alejandro Hernandez, she’d concluded, were infected both by dubious evidence and prosecutorial misconduct. The real murderer, she was certain, was a convicted child slayer named Brian Dugan, who’d been claiming since 1985 that it was he who’d killed Jeanine two years earlier. Confess error, the 30-year-old prosecutor had urged her boss, Atty. Gen. Roland W. Burris. Tell the Illinois Supreme Court that we’ve made a mistake.

Burris had declined. So Kenney had quit rather than write the state’s brief opposing Cruz’s Death Row appeal. “My ethical responsibilities as an officer of the court compel me to take this action,” she’d explained in her impassioned letter of resignation. “I cannot sit idly as this office continues to pursue the unjust prosecution and execution of Rolando Cruz.”

On the radio, the reporter was amplifying. Something about a decade of controversy and the failure to reach conclusions and the politics of a prosecutor’s office. By then, though, Sam’s mind was elsewhere. All this was more an echo than news to him, after all--an echo full of unwelcome memories.

Seven years--that was how long it had been since he, too, had quit over the Nicarico case. As one of the original DuPage County sheriff’s detectives assigned to investigate the little girl’s murder, he’d never believed they’d found the right men. The guys they’d arrested were small-time mutts, not child killers. He’d tried to tell the prosecutors, but he’d not gotten any further with his bosses than had Mary Kenney.

He’d not been any less impetuous than she, either. He still had regrets and second thoughts about quitting. It was hard to give up a career. He’d been 34 then, a Marine veteran who’d fought in Vietnam, then followed in the footsteps of his father, a cop in Cicero. In 1983, he’d been a DuPage County sheriff’s deputy for 10 years, a detective for four years, his department’s leader in felony arrests for two years. But after the Nicarico case, he just couldn’t play the game anymore. No big deal; he’d adjusted. Now he sold furnaces and air conditioners in suburban Chicago.

To some, the news about Mary Kenney on this Friday morning represented further proof that an innocent man sat on Death Row--”I absolutely, positively believe they’ve convicted the wrong man,” says Jeremy Margolis, a private attorney who formerly was director of the Illinois State Police. To others, the news sparked a troubled, nationwide debate about the role of lawyers in the adversary system of justice. “A prosecutor doesn’t just follow orders; sometimes you have to stand up, sometimes principle is involved,” says Scott Turow, the author (“Presumed Innocent”) and lawyer, who now represents Hernandez on appeal. To a striking number of law-enforcement officials, among them a police chief, a county prosecutor and various state investigators, the news reinforced their own professional dismay: “When the public understands what has occurred, the prestige and credibility of prosecutors everywhere will be adversely affected. The Nicarico case will do to prosecutors what the Rodney King police-beating tapes have done to the police,” says Kane County State’s Attorney Gary Johnson, whose jurisdiction lies just to the west of DuPage.

But to John Sam, the news mostly meant he wasn’t alone anymore. Someone else was no longer willing to play the game. Someone else was willing to act on her beliefs, whatever the consequences. Someone else had a line she would not cross.

DUPAGE COUNTY, WHICH ABUTS COOK COUNTY’S western border about 35 miles from downtown Chicago, is a familiar type of suburban settlement. Denser and older where it is closest to the metropolis, it begins to thin out and turn young as it spreads westward, along the spine of the East-West Tollway, until finally everything looks newly risen. Here, in the far southwest corner of the county around Naperville, is a wide-open land of shopping malls and franchise restaurants and corporate office parks, of cul-de-sacs and quarter-acre lots and large houses that look both costly and very much like each other. Here is an upper-middle-class land of reassuring insulation, where parents don’t think twice about leaving their 10-year-old, fifth-grade daughter home alone when she is not feeling well.

Which is exactly what Tom and Pat Nicarico did on Feb. 25, 1983.

The report about a missing girl over in Naperville township reached the DuPage Sheriff’s Department at 4 p.m. that Friday. John Sam and his colleagues, Detectives Thomas Vosburgh and Dennis Kurzawa, realized something was terribly wrong the moment they pulled up to the Nicaricos’ big split-level home. The front door’s frame molding had been kicked right off the wall.

Jeanine, weak from the flu, had stayed home from school alone that day, family members explained. Her father worked as an engineer in Chicago, her mother as a secretary at a local elementary school. At noon, Pat Nicarico had driven home to make her daughter a grilled-cheese sandwich; in the early afternoon, she’d talked to Jeanine on the phone. An older sister, returning from school soon after, had seen the damaged front door and fled to a neighbor.

By the time Jeanine’s battered body was found two days later, lying face down on a nearby dirt trail called the Prairie Path, authorities had mobilized a 50-person task force from the DuPage County Sheriff’s Department, the Naperville police force and the FBI. For three weeks, they fruitlessly chased possible leads while the stunned Naperville region grieved and grew restless. Jeanine’s fifth-grade classmates named a star in the sky after the murdered girl. The city of Naperville offered a $5,000 reward, later upped to $10,000. Finally, someone phoned with an anonymous tip: A guy named Alex Hernandez over in Aurora--Crazy Alex--might know something.

Detectives Sam and Kurzawa found Hernandez in the duplex where he lived with his mother and grandmother. He was 19, dull-eyed, slow as a cow--”borderline mentally retarded,” doctors would later testify--with a minor record of misdemeanor thefts and a balmy hope of one day being a cop. First he stonewalled, then he wouldn’t stop talking. The stories were jumbled and varied, full of beer drinking in cars and visits to farmhouses with buddies, but the names of two men came up more than once: Stephen Buckley and Rolando Cruz.

We don’t know what Alex is talking about, Alex is the town clown, those two said when the detectives came calling. A professor in North Carolina, though, thought Stephen Buckley’s boot matched the print on the Nicarico front door. And Rolando Cruz, like Alex Hernandez, couldn’t stop talking. In fact, Cruz and Hernandez in those early days were stumbling over each other in their zeal to cooperate. But most of their jumbled statements managed mainly to implicate themselves. I know who did it; I was there but didn’t do it; I’ll show you where it happened; they killed her at my friend’s house.

Then Ramon Mares came along. He and Cruz had been drinking and laughing at a party late one night in March, Mares told Detective Warren Wilkosz. Cruz had turned emotional, had started sobbing. I know who killed the little girl in Naperville, Cruz had said. I know who did it. I was there, but I didn’t do it. I’m going to get the motherf----r for doing what he did.

Years later, Mares would insist that Cruz hadn’t really said, “I was there.” Years later, Mares would testify that the DuPage prosecutors had pressured him into saying those words because that’s what they wanted to hear. Years later, he would explain that he’d lied to save face in the neighborhood, and because he was afraid of being prosecuted for perjury, and because he was interested in the reward money.

To DuPage County Assistant State’s Attorney Thomas Knight in the late spring of 1983, however, Mares was the clincher. Highly regarded as a ferociously effective prosecutor, Knight had grown close to the Nicarico family and determined to find their daughter’s killer. He had done so, he now decided. Cruz, Hernandez and Buckley, out to do a burglary, had unexpectedly found a little girl at home. Jeanine could identify them, so they had killed her. Raped her and killed her. That was what had happened. Knight was positive.

He still is, for that matter. “I know the record better than anyone,” says Knight, who now has a private civil practice in Wheaton, DuPage County’s seat. “I got input from all quarters. I would not want to do anything to the wrong person.”

But if the prosecutors in the spring of 1983 were convinced they had the right men, they apparently weren’t confident they could persuade anyone else. Nine months later, in late January, 1984, the prosecutors still were saying publicly that they didn’t have enough for an indictment. On Jan. 26, Tom and Pat Nicarico made an agonized public plea for new information. Then, just six weeks later--12 days before DuPage County State’s Attorney J. Michael Fitzsimmons was to face a stiff primary election challenge--the grand jury indictments were suddenly announced.

John Sam laughed out loud when he heard the news.

HAVING SEEN HOW THE EVIDENCE WAS GATHERED, THE DUPAGE County detective did not feel nearly so impressed with the prosecution’s case as did the grand jurors.

Yes, Alex Hernandez had said “I was there, I held her down, I’ll show where it was at.” But that came only after they’d put Hernandez in a room with a grade-school chum and jailbird nicknamed the Penguin, who’d fed Alex a hokey story about getting the $10,000 reward and a new identity in Puerto Rico if he helped the cops on the Nicarico murder. Truth was, when they took Hernandez on a “drivearound,” he couldn’t even show them where the murder happened. Nor could he ever quite get the details right. We put the little girl in the back seat along with the Mr. Coffee we stole, he’d say. But there was no Mr. Coffee stolen. Nothing had been taken from the Nicarico home except Jeanine. “We wrote the script--Alex was just doing his part,” Sam says now. “He thinks he’s going to be a big guy, win the lottery, be the King of Puerto Rico. It’s hard to understand until you know him. Then it’s obvious. He’s dumb. When all was said and done, this was bull.”

And yes, they had tied Stephen Buckley’s boot print to the murder, but only after they’d shopped the print to three different experts before finding one--Louise Robbins, a North Carolina anthropologist with self-described “forensic” talents-- willing to say the print on the Nicarico door was definitely Buckley’s. “The first lab guy says it’s not the boot,” Sam recalls now. “We don’t like that answer, so there’s no paper. We go to a second guy who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. That’ll be $10,000. So now we have evidence.”

Rolando Cruz was the topper for Sam. Within days after volunteering to “find out what he could” about the crime, Cruz had persuaded the DuPage authorities to put him up at the Four Seasons Motel in Glen Ellyn, where he promptly began throwing glue-sniffing parties for his buddies when he wasn’t test-driving Cadillacs at the local showrooms, apparently in anticipation of collecting his $10,000 reward. It seemed to Sam that his fellow detectives had been watching too much TV. Cruz was a plain liar, a sneaky little burglar. “He’s playing you for what he can get,” Sam told the other guys.

All the same, Sam saw some value in the indictments--maybe he could use them to shake some information out of the three mutts from Aurora. He was game for any scam that would work, and besides, he took pride in being able to coax confessions. “Selling jail,” he called it.

He went after Hernandez first, then Buckley, while others handled Cruz. He talked about their sisters, he talked about the indictment, he talked about the deal they could cut. Both defendants cried at times, overwhelmed. But neither ever confessed or turned on the others. Neither ever gave up anything.

That’s just not how it worked in Sam’s world. Something was wrong. If three guys burglarize a home, and one rapes and kills a little girl they find there, No. 1 and No. 2 are not going to sit still and protect No. 3--not with the cops saying, if you talk we’re going to let you go, make you a hero, kiss your ass on TV, give you money. For that matter, the rape didn’t make sense. Sam had handled lots of child-molestation cases. It was always someone alone, secretive, private. You don’t rape a 10-year-old with others around, you don’t rape a 10-year-old while you’re in the middle of a burglary with two other guys.

Give it up, Sam told prosecutor Tom Knight. You have the wrong guys. We got three simpletons, three mutts. And none is going to tell on the other?

Knight does not recall this advice, but it would not, at any rate, have mattered much. “John Sam was no ultimate authority,” Knight explains now. “He was just another detective on the task force. In truth, Sam was always a little bit. . .well, the rap was he basically was aggressive. A bit of a cowboy. He knows it all.”

That reputation did not diminish when Sam, despite the indictments, continued to work the streets on his own throughout much of 1984, looking for Jeanine Nicarico’s killer. Then one day his suspicious questions irritated somebody with a lawyer, and the lawyer called DuPage authorities to complain, and Sheriff Richard Doria summoned his deputy.

What the hell are you doing? Doria asked Sam. You’re pissing off Tom Knight. They already have indictments. Stop going around saying we have the wrong guys. If the defense finds out what you’re doing, it looks bad.

Next thing Sam knew, he was assigned to sit in front of 7-Eleven stores and catch teen-agers buying beer. They called it a new assignment, but it felt to Sam like punishment.

Lots of other people in the department also don’t think these guys did it, the detective told himself. They just won’t say so. Everyone benefits if you put these guys away, everyone gets ahead. Only trouble is, it’s not the truth.

The trial was coming up. Sam didn’t want to testify for the state; he wanted to testify for the defense. He had two young daughters, one 10, just about Jeanine’s age. How could he keep telling them to do the right thing if he didn’t do it himself?

The joint trial of Cruz, Hernandez and Buckley that followed a month after Sam’s resignation in December, 1984, was by all accounts an emotionally wrenching affair. Jurors and witnesses, including Jeanine’s parents, broke down in tears; some became physically ill. Sam testified for the defense, as he’d desired, but was not allowed to voice his opinions about the case.

Instead, Detectives Thomas Vosburgh and Dennis Kurzawa took the stand to tell a devastating story about Rolando Cruz. One night just weeks after Jeanine’s murder, they testified, an agitated Cruz began talking about a “vision” he’d had of the Nicarico killing. A vision in which Jeanine had been dragged from the house in a blanket, beaten on the head and dumped face down in the woods. A vision that closely resembled what actually had happened. “There was no way for Cruz to know that information,” Tom Knight advised the jury. “He knows it because he was there.”

But to Sam, listening, there was a considerable problem with the vision story. Vosburgh and Kurzawa had never written up a report about this critical visit with Cruz. Nor, when taping an interview with Cruz a day later, had they asked him to repeat his story about the vision. Nor had they ever told Sam about it. Nor had Tom Knight questioned Cruz about the vision when interrogating him before a grand jury just one week after the interview. “Vosburgh and Kurzawa and I worked together every day on the task force,” Sam says now. “We had our desks together in one room for a while, then later in adjoining cubicles. We had a ‘classroom’ every morning where we shared what was going on. Every morning. Nothing about a vision was ever said to me.”

On Feb. 22, 1985, the jury convicted Cruz and Hernandez of Jeanine Nicarico’s murder but could not decide about defendant Buckley, whom prosecutors pledged to retry. On March 15, both Cruz and Hernandez were sentenced to death. John Sam soon after went to work selling cars in nearby Aurora, determined to put the world of cops and courts out of his mind, while the citizens around Naperville took comfort in telling themselves justice had been done.

Then, less than three months later and 50 miles away, a 7-year-old girl named Melissa Ackerman was abducted, raped and murdered. Arrested as a suspect within a day, a 27-year-old loner named Brian Dugan began talking.

Yes, I killed Melissa, Dugan told his attorney, the La Salle County public defender George Mueller. Melissa--and two others.

One was a woman in Kane County named Donna Schnorr. The other was a little girl in DuPage County named Jeanine Nicarico.

FROM JUNE TO NOVEMBER, 1985, MUELLER SAT ON THE INFORMATION PROVided in confidence by Dugan, unsure how to proceed. Bound by the attorney-client privilege and obligated to protect Brian Dugan’s interests, he didn’t see how he could tell anyone about his confession. On the other hand, he wasn’t inclined to let Cruz and Hernandez go down for something they didn’t do.

Finally, he fixed on a plan that would help his client and also take the monkey off his back about those guys on Death Row.

The state clearly had an ironclad case against Dugan in the Ackerman murder, since an eyewitness had provided a dead-on description of the suspect and his car. So the best Mueller could do for his client was keep him off Death Row by having him plea bargain for a life sentence without possibility of parole. And the best way to cut such a deal was to have Dugan plead guilty to all the other crimes he’d committed.

There were quite a few. Apart from the Ackerman murder, Dugan was then facing three unrelated sexual-assault charges in which the victims had identified him in lineups. We’ll give the prosecutors everything, Mueller figured. The rapes, the Ackerman murder, the Schnorr murder, the Nicarico murder.

Meeting with two DuPage County assistant prosecutors on Nov. 13, 1985, the LaSalle County public defender gingerly spelled out the details of a “hypothetical” confession that Dugan might be willing to provide about a “hypothetical” murder case--if DuPage was willing to grant him immunity from the death penalty. “It was a very unusual situation,” Mueller recalls now. “I had the impression the DuPage prosecutors did not want to hear anything. They already had a conviction. When I finished, one of the guys said, ‘You’re beautiful on stuff about the Nicarico house. But some other key things are wrong.’ Then they said, ‘We’ll get back to you’ and left.”

Three days later, prosecutors from LaSalle and Kane counties listened to and accepted Dugan’s confessions to all his other crimes, agreeing that Dugan in exchange would get not death but life in prison without possibility of parole. DuPage County, however, wasn’t interested in this plea bargain. DuPage County, in fact, was not present at this meeting.

It is not hard to see why. The DuPage prosecutors already had two men on Death Row for the Nicarico murder. Understandably, they and the Nicarico family were enormously invested in these prosecutions. To confess error now was to impeach a DuPage County jury and the very workings of the legal system. “I believe in the integrity of the jury system,” is how DuPage County State’s Attorney James Ryan, who prosecuted the Nicarico case after unseating Michael Fitzsimmons, puts it. “A jury had already convicted Cruz and Hernandez. To accept Dugan’s story willy-nilly would have been imprudent.” Scott Turow, though, puts it a little differently: “As a psychological phenomenon, this is an incredible case,” he says. “What this case is about is the inability of human beings to admit mistakes. That’s very sad.”

Whatever the motivation, DuPage County’s resistance to granting immunity did not silence Dugan. Talking to Cmdr. Edward Cisowski of the Illinois State Police later on the day he cut his deal with the Kane and LaSalle prosecutors, Dugan--even though he no longer needed Nicarico as a bargaining chip--still felt inclined to talk about the little girl in Naperville. “He wants to ‘clear the books’ regarding the only other murder he has committed,” Cisowski explained in a report he wrote two days later. “He said he does not want to see two innocent people executed.”

He hadn’t reported for work the day of the girl’s murder, Dugan told Cisowski. Instead, he was in the Naperville area, driving around, smoking marijuana. His car was running roughly, so he stopped at a house and borrowed a screwdriver from an elderly woman. The car was still running poorly after he’d tried to fix it, so he stopped again at another house. This time a young girl came to the door, but wouldn’t open it. He could see her through a glass window. He kicked the front door twice, using his right foot. She tried to run, but he grabbed her. He carried her to an upstairs bedroom, wrapped her in a sheet from an unmade bed and taped a towel around her eyes. He put her in his car, a green Plymouth Valiant, and drove to the Prairie Path. He sodomized her. Then he hit her in the back of the head with a tire iron and left her body near the path. Climbing back into his car, he saw two men parked nearby in what looked like a Commonwealth Edison truck. Driving off, he threw his muddy boots into a farmer’s field.

Listening to this, Cisowski thought: The guy’s so soft-spoken, such a gentleman. Yes sir and no sir to my questions. You would let your daughter date him.

When Cisowski took Dugan’s confession to the DuPage County state’s attorney’s office, prosecutors there did not tell him they’d heard much the same from Dugan’s attorney just days before. Instead, they invited the state police to conduct their own independent investigation.

This began with a drivearound, during which Dugan directed the state police straight to the Nicarico house. There’s “some green stuff” by the front door that hadn’t been there before, Dugan observed. Checking with the Nicaricos that night, Cisowski learned they’d installed a green indoor-outdoor carpet on the front porch since Jeanine’s abduction.

A week later, when Dugan took a polygraph exam, the examiner said it was his “qualified opinion” that Dugan was telling the truth. Three days after that, Dugan stuck to his story in a videotaped interview under what the supervising psychologist said was a state of hypnosis.

Dubious at first, Cisowski came to believe Dugan was saying things he couldn’t possibly have gotten from the public record. More persuasive still, there was evidence that corroborated what he was saying, evidence that Dugan couldn’t possibly have created.

His employer’s records confirmed that Dugan indeed had missed work on Feb. 25, 1983. Two tollway workers parked on the Prairie Path indeed had seen a single white male that afternoon, turning around in a dark green car similar to Dugan’s, right down to a missing hubcap. Lab reports confirmed that the Nicaricos’ front door indeed had been kicked twice, by a shoe similar in size and type to Dugan’s. The victim indeed had been sodomized.

A farmer remembered a boot sticking to his plow in precisely the cornfield where Dugan said he’d tossed his boots. Dugan said he’d wrapped serrated tape around Jeanine’s head four to six times, and that was consistent with the type and length of the tape found by investigators. Dugan said he bought the tape from B & R Pharmacy in Aurora, packaged in a metal container, and the pharmacy did sell that type of tape, which now came in plastic containers but until 1984 had been sold in metal containers. Dugan said he’d wiped the Nicaricos’ front doorknob clean of prints, and there were no prints. Dugan said he got rid of the bloody tire iron, and his car was missing its tire iron when repossessed shortly after the murder.

Most telling of all, perhaps, Dugan said he was in the Nicaricos’ neighborhood on the day of Jeanine’s murder--and he most certainly was. Eloise Suk, a 51-year-old secretary at St. John’s Episcopal Church in Naperville, located just five blocks from the Nicarico home, had seen him. Early that afternoon, Brian Dugan had knocked on the church’s front door, asking about a job. There was no doubt it was Dugan--he’d even written down his name and phone number--but Suk had told no one of the visit until Dugan was arrested more than two years later for the murder of Melissa Ackerman.

Even if Dugan had studied up on the Nicarico case, Cisowski wondered, how could he make up Suk?

Cisowski was poured from the same mold as John Sam, in a way--a respected 15-year veteran, risen from general detective to manager of investigations, brash and unvarnished, a delight to some and an irritant to others. It is no surprise, then, to learn that as he puzzled over Dugan’s confession, he turned to John Sam for advice.

Sam longed for the chance to sit across from Dugan himself and hear him explain that day, but Cisowski’s account was telling enough. “This guy Dugan,” Sam observed, “seems to be a pretty good candidate.”

Cisowski also consulted the Naperville police chief, James Teal, who one day had been thrown out of the DuPage County sheriff’s office after insisting too vehemently that they had the wrong men. The police chief felt chills when he watched a videotape of Dugan talking about his foot sinking into the Prairie Path mud, for exactly the same thing had happened to him when he visited that site three weeks after the murder. “I’m positive they didn’t do it,” Teal told Cisowski. “Dugan did it.”

In mid-December, 1985, Cisowski started telling the DuPage County prosecutors that they had the wrong guys.

Your case has got one f-----g white male, Cisowski advised them. There aren’t any Hispanics in it. Your version doesn’t make sense. These guys you have are petty burglars. Do petty burglars choose to bang a 10-year-old because they’re afraid she’d pick them out of a lineup? Do petty burglars steal nothing from the house? It doesn’t make sense.

Cisowski’s judgment appeared to gain support in June, 1986, when an American Academy of Forensic Science seminar debunked forensic anthropologist Louise Robbins, and an FBI Crime Lab expert concluded that Stephen Buckley’s boots had “many dissimilarities” with the print on the Nicaricos’ front door. In March, 1987, these events, combined with Louise Robbins’ failing health, persuaded the DuPage prosecutors to drop the proposed retrial of Buckley.

When the Illinois Supreme Court nine months later overturned the Cruz and Hernandez convictions for procedural reasons unrelated to Dugan--the defendants should have been tried separately--there was much public speculation that DuPage County would drop their cases as well. This speculation intensified later that spring, when a genetic DNA-typing test indicated sperm taken from the victim’s body matched Dugan’s type and excluded Hernandez’s.

The speculation, however, was wrong.

Perhaps the DuPage prosecutors, as they now say, still believed they had the right guys. There were, after all, inconsistencies in Dugan’s story: Dugan never could lead police to the house of the elderly lady from whom he borrowed a screwdriver; Dugan didn’t remember a sailboat on the Nicaricos’ driveway or a dog in their house; Dugan reversed the position of two interior stairways; Dugan wrongly said that he left the body face up, that Jeanine had pink toenail polish, that Jeanine had shoulder-length hair. If these inconsistencies sound trivial, considering that Dugan’s recollections were being filtered through clouds of marijuana and 30 months of other assaults, it must be said that the DuPage authorities nonetheless had validation from Circuit Judge Robert A. Nolan. In barring Dugan’s confession from Buckley’s planned second trial, Judge Nolan said, “Mr. Dugan’s statements are not trustworthy. . . . It is clear he was fabricating.”

There are, though, other explanations for the prosecutors’ actions that are just as easy to believe. Perhaps the earlier disinclination to admit a mistake when Dugan first surfaced now made retreat untenable. “What happened is, I think they got in a couple steps, then couldn’t get out. They’re small guys who lack guts or a moral compass,” says Jeremy Margolis, the former state police director. Perhaps sheer outrage fueled an overzealous hunger for a final resolution. “This was too horrible a crime, too sympathetic a family. The best way to look at this is they thought they were framing guilty people for a heinous crime,” says Kane County State’s Attorney Gary Johnson, who seven years ago served as Stephen Buckley’s defense attorney. Perhaps competitive rancor played a role--by then, some in the DuPage prosecutor’s office were privately accusing state police commander Cisowski of a “megalomaniacal” desire to be “the cop who unseats the convictions of two guys on Death Row.” Or perhaps political ambition provides the most convincing explanation.

The DuPage County State’s Attorney James Ryan, who would later seek the Republican nomination for state attorney general, surely regarded the prospect of confessing error to be a grave political liability. Confessing error to the Nicarico family, who’d already suffered so greatly, would be particularly undesirable--especially since the family was regularly and publicly insisting upon Cruz and Hernandez’s guilt, hinting at wider conspiracies, urging a final resolution and suggesting that Cisowski had fed answers to Dugan. At the least, Ryan must have felt a certain strain when Tom Nicarico, during a press conference in his living room, told reporters, “Dugan’s story didn’t match when first told to us. In the next few days, the story started to match. I want the world to know I don’t believe Brian Dugan.”

It should be noted that Ryan dismisses all such speculation about political pressure. “That’s ridiculous,” he says. “The grand jury found probable cause to believe that Cruz and Hernandez did it. The standard for an Illinois prosecutor is the presence of probable cause. I had an ethical obligation to go forward.” Perhaps this is so. Perhaps beyond political ambition and commonplace rancor and moral cowardice--beyond the smoking guns of human nature, that is--there lies at the heart of the DuPage County saga an unavoidably imperfect legal system dependent upon adversarial relationships and “probable cause” for direction. Certainly, however, prosecutor Ryan’s decision to remain silent when the Nicaricos grew suspicious of Cisowski--even though Ryan knew his own aides had heard Dugan’s story three days before Cisowski entered the case--can be seen as an act of political discretion.

Whatever the most accurate explanation, the message from the DuPage County state’s attorney at this point was unequivocal. We will indeed, Ryan said, retry Rolando Cruz and Alex Hernandez.

IN THE DEBATES THAT NOW wage over the Nicarico murder prosecutions, it is sometimes pointed out that the jurors in the second round of trials did get to hear about Brian Dugan. True enough--but the jurors were not, in the end, exposed to his entire story.

This was so partly because they didn’t hear Dugan himself--since DuPage County refused to grant him immunity from the death penalty, he declined to testify. This was also so because Circuit Judge Edward Kowal sharply limited what the jurors could hear about Dugan’s past crimes. The jurors, for example, heard no evidence corroborating Dugan’s confession to the Ackerman and Schnorr murders and no evidence suggesting their similarities to the Nicarico murder.

Instead, the jurors heard a handful of jailhouse informants suggest that Dugan was trying to game the system and be a prison hero. They also heard prosecutors suggest that Dugan was lying to protect his friends. Had not Dugan and Cruz been seen together in a car one Easter morning by Erma Rodriguez, Cruz’s cousin? In court, Rodriguez flatly denied this, but Cruz’s friend Ramon Mares and Detective Warren Wilkosz both said she’d told them about that morning.

It was questionable hearsay evidence, for Wilkosz hadn’t taped Rodriguez or gotten her to sign a statement or even kept his own notes of their conversation, but it was still an undeniably pivotal piece of information. Whether or not Dugan knew the trio charged with the Nicarico murder, he certainly knew of them: “Guess what we’ve got in here?” he wrote a woman friend from the DuPage County Jail, where they were all incarcerated in late summer, 1983. “We have Buckley, Hernandez and Cruz, that infamous trio from Aurora, whom we all know are sick baby killers.”

Was this really the voice of Jeanine Nicarico’s killer? the prosecutors asked.

Actually, their question was a little more precise: Was this really the voice of Jeanine Nicarico’s solitary killer?

For the prosecutors’ original story had now evolved to fit the new facts. Where once Dugan was an outright liar, making everything up, he now might indeed be involved in the Nicarico murder--but not by himself. Where once the killers were Cruz, Hernandez and Buckley, now they might be Cruz, Hernandez and Dugan. Where once Buckley kicked in the Nicaricos’ front door, now maybe it was Cruz. Where once the murder definitely happened on the Prairie Path, now--after witnesses had surfaced who might have seen Dugan alone there--the physical evidence clearly showed that Jeanine Nicarico must have been killed elsewhere.

John Sam, watching the new trials for Cruz and Hernandez from the courthouse hallways, waiting to be called as a witness, could not believe what was going on. They can’t deny Dugan, so they’re putting him together with the others, Sam fumed. Now Dugan is part of it. Pretty soon there won’t be any room in the car for the little girl. They’ll need a Greyhound bus outside the Nicaricos’ house. All these guys, and still no physical evidence. It’s asinine.

The jurors, however, saw it otherwise. On Feb. 1, 1990, Rolando Cruz was again convicted of murdering Jeanine Nicarico. When Alex Hernandez’s retrial ended a month later with a hung jury, the DuPage prosecutors took Hernandez to trial once more, where on May 18, 1991, he also was convicted of the murder. Cruz drew the death penalty from Judge Kowal, but Circuit Court Judge John Nelligan, after expressing considerable misgivings about the state’s evidence, sentenced Hernandez to 80 years in prison.

For a time, that seemed to be the end of the story.

IT IS EASY TO SEE WHY MARY Brigid Kenney felt great excitement in December, 1991, when her bosses in the Illinois attorney general’s downtown Chicago office handed her the appellate file on the convicted rapist and murderer Rolando Cruz. The focus of Kenney’s brief career, after all, had been the prosecution of sex offenders. During her off-hours, the young prosecutor sometimes worked as a volunteer rape crisis counselor in hospitals. Here, before her, was the file on a man whom two different juries had convicted of the most heinous crime in modern DuPage County history. Outrages such as Cruz’s, Kenney believed, most certainly deserved the death penalty. She relished the opportunity to play a role in punishing this man.

When Kenney began studying the case file, however, her fervor turned first to doubt, then to dismay. The record, Kenney eventually came to believe, reeked of politics and prosecutorial misconduct by DuPage authorities intent on winning, not reaching the truth.

Then there were all those lawyers and law-enforcement officials who over the years had spoken out and risked their careers because of this case. One of them Kenney knew, a fact her critics would later flag; she’d taken a class in constitutional law five years before from Lawrence Marshall, a Northwestern University law professor who was handling Cruz’s Death Row appeal. But there were also plenty of more conservative voices speaking out. Three of them--the Naperville police chief, James Teal; the Kane County prosecutor, Gary Johnson, and the former state police director, Jeremy Margolis--had written directly to the courts, with passion and certainty.

What affected Kenney most of all, though, was Judge Kowal’s decision to limit the jurors’ exposure to Brian Dugan. The jurors had never heard that Dugan sodomized each of his murder victims. The jurors had never heard that each of Dugan’s surviving victims identified him as her attacker. The jurors had never heard that Dugan threatened one of his other rape victims with a tire iron. Most important, the jurors had never heard that Dugan always acted alone.

Kenney was sure that if the jurors had heard all the evidence without distortion from the prosecutors, they would have concluded that Dugan killed Jeanine Nicarico. Kenney was not, however, quite so sure what she now should do, and for good reason. Here, after all, the young prosecutor was confronting a question of formidable perplexity. Was it right to place her judgment above that of an entire system, including three dozen jurors who for weeks had seen witnesses in the flesh and listened to evidence? Was it right for a prosecutor to decide that the jurors simply had gotten it wrong?

“If the record is that obvious to Mary Kenney, how come two judges and three juries have ruled as they did?” former DuPage prosecutor Thomas Knight asks. “The jury sees and hears the witnesses, the jury is the trier of facts. We, reading through a record, can choose to believe this or that, but the juries see it all. We can’t rely on your views or my views or the defense attorney’s views. What we can rely on is the jury.”

Even some of Kenney’s admirers acknowledge the legitimacy of this point. “It would be foolhardy to pretend there’s not ambiguity here. I’m not sure I want the attorney general’s office as a super jury,” allows Scott Turow. But most of Kenney’s supporters look beyond the ambiguity. “The system doesn’t always work, and it hasn’t this time,” says Gary Johnson. “It’s got to be checked, it’s got to be stopped. It takes courage, it sure does, but you have to do it. Justice has to be done.”

With more conundrums in this exchange than obviously correct courses of action, the ground was undeniably treacherous under Kenney’s feet. To cause more pain for the increasingly anguished Nicarico family was an unwelcome prospect--”There’s an army of people out there looking to get that conviction overturned. Except for us, there is no one representing Jeanine,” Tom and Pat Nicarico had recently told one reporter. What’s more, not all impartial observers agreed with Kenney’s view of the case; Anton R. Valukas, a prominent Chicago lawyer and former U.S. attorney, asked by the DuPage prosecutor to evaluate the file after Hernandez’s second trial, had decided a jury “could fairly return a verdict of guilty.”

Still, Valukas’ stated focus was not the truth, only whether there was “sufficient” evidence to “warrant” a prosecution. Kenney had in mind a quite different matter, more moral than legal in tone. Hers was an ageless and universal question: How to make your way in the world and still keep a clear conscience? Where to draw the personal line you will not cross? In the end, Kenney--just four years out of law school, her brief career devoted entirely to prosecution--felt compelled to draw her line at the Nicarico murder case.

Yes, the adversary system had worked just as it was designed. Yes, three different juries had found Cruz and Hernandez guilty. Yes, the game had been played according to the rules. But Mary Kenney, like John Sam years before her, now found she just did not have the stomach for that game.

“No harm will result from a confession of error in this case,” Kenney wrote her superiors in a private memo last February. “However, the execution of an innocent man would destroy confidence in our criminal justice system. . . . I cannot in good conscience allow my name to appear on a brief asking the Illinois Supreme Court to affirm this conviction. I submit, respectfully, that the attorney general should not do so either.”

By the end of February, Kenney understood she was not going to prevail. She knew she could simply move on to another case while her supervisors reassigned the Cruz brief to someone else. But Kenney did not think that sufficient.

“I pray that you will take the opportunity of my resignation to reconsider your decision to defend DuPage County’s prosecution of this case,” she wrote Illinois Atty. Gen. Roland Burris on March 5. “I beg of you, General Burris, please begin mitigating the damages of this ugly prosecution. Do not help execute an innocent man.”

Understandably, Kenney’s public resignation touched a nerve, both in the Illinois attorney general’s office and the broader community.

“I respect Mary Kenney,” said DuPage prosecutor Ryan. “She’s following her conscience. But frankly, she’s young and inexperienced compared to those who support these convictions. She has raised no new points. This has all been reviewed before.”

“The system allows different roles for each player,” argued Burris. “Our job is to sustain what the jury ordered and the judge entered. It would be grounds to impeach me if I didn’t argue this case. The hope is we advocate, they advocate, and out of it comes truth, justice. If we think otherwise, then we’re in the wrong business. You start doing that, the whole system breaks down.”

Even when a community group called Citizens Action for Justice began to circulate petitions and a few jurors began to speak up--”I think if all of the evidence had come out, it would have changed a lot of minds. . . . Personally, I think we would have found him innocent,” one juror told reporters--Burris did not feel inclined to alter his views. Nor was Burris swayed when Kane County State’s Attorney Johnson one morning last April rode the train 40 miles from his county seat in Geneva to plead for the defendants.

Confess error, he told several of Burris’ top aides in Chicago. Don’t hide behind the facade of the system. Burris talks as if he’s not part of the system. Ryan too. But the system is them. They’re the safety valve. The system is only as good as the people in it. Come on, they know that.

Burris’ aides listened, took notes, and--by Johnson’s count--said all of eight sentences. Two days later, the attorney general’s office filed its brief, arguing the people’s case against Cruz’s appeal.

IN THE END, OF COURSE, THIS OUTcome not only wasn’t a surprise, it was inevitable. Mary Kenney’s resignation could cause a certain unease among those she left standing on the playing field but not a mass conversion.

Instead, the legal system has continued to roll on, as august and venerable and inexorable as ever. Rising as adversaries and advocates in an emotional, riveting 90-minute hearing, the attorney general’s representatives and the defense attorneys on June 22 offered their respective truths to the Illinois Supreme Court and a packed chamber. The lawyers now await the judges’ ruling. Meanwhile, the Nicaricos, still yearning for a final resolution, rail at the whole legal system.

“It’s like putting a knife through my heart every time this happens,” Pat Nicarico told a reporter in the wake of Kenney’s public resignation.

“I’m more angry at the officers of the court, more so than the people that did this (murder),” said Tom Nicarico. “The system has allowed this whole boiling mess to fester to the point where this becomes the focal point, not the crime.”

Perhaps these comments and turns of events are why Mary Kenney and John Sam both feel more shaken than festive these days and quite disinclined to join the fractious debate presently waging in the Illinois legal community. Kenney, whose career plans remain unsettled, listens to the heated exchanges mainly from afar, without comment; she temporarily fled Chicago after her resignation, retreating from an overwhelming news-media onslaught. Sam, by choice, listens not at all.

In truth, the broad public debate simply isn’t important to him. It is more a private and personal issue than a public one, the way he sees it. A private and personal issue with no obviously correct answer.

“What Mary Kenney did was follow her heart,” Sam observes with a shrug. “People just don’t understand. Was I totally right to quit? I don’t know. Does it mean you should quit your job if you feel bad about it? I don’t know. But that’s what I did, and that’s what Mary Kenney did. Sometimes I think if I’d stayed, I would have had the power to change things. Maybe she thinks so, too; she probably worked hard to get where she was. But maybe she now sleeps better at night.”

As he speaks, Sam is sitting at a small desk in a showroom full of furnaces, wearing his current uniform, a short-sleeved shirt with referee stripes and a pocket insignia that reads “John Sam, Residential Consultant.” At 42, his clear blue eyes are more full of mirth than rancor, but it is a willed mirth. For a good long while after Sam left the sheriff’s department, his own father wouldn’t talk to him, seeing his son’s act as a slap in the face to the profession they’d both shared, and Sam still feels ostracized by old pals in the DuPage County Sheriff’s Department. He insists he’s adjusted, he insists he’s fine, he insists he needs no validation, but in the next breath he calculates how he’d be an 18-year veteran by now if he hadn’t left. Regret is his subtext, despite the spirit in his eyes.

“Sometimes I think I shouldn’t have pouted so much,” Sam says. “It was the sheriff’s bat and ball, after all. We all face this kind of situation. I just reacted differently. Today, I probably would never have quit. I’m older, I have more responsibility. Maybe I’d still do it, though. Who knows? Did the world stop because I left? No. Is the world going to stop because Kenney left? No. Does it mean I was right, or Kenney was right? No. We could both be wrong--but we still took action based on what we believe.”

This bond with Kenney appears to provide Sam with a touch of the validation he surely needs, despite his denials. “That was nice, what Kenney did,” the former detective says after a moment of reflection. “I was glad to see I’m not the only idiot. Sometimes I used to think that.”