When Circuit Court Judge John Michela and Death Row convict Joe Burrows warily faced each other in a Kankakee County, Ill., courtroom on Sept. 8, it was by no means their first encounter. In the spring of 1989, Michela had presided over Burrows' two trials on first-degree murder charges. The first trial had ended in a deadlocked jury; the second had ended in Burrows' conviction. The same two eyewitnesses--a small-time cocaine dealer and a scared, dim 22-year-old--had composed the sum of the state's case at both trials. The difference was, the jurors at the second trial believed them.
It had mattered little to Michela what he thought of this result. It had mattered little to Michela that he found the coke dealer, Gayle Potter, to be utterly unbelievable and wasn't sure if the 22-year-old, Ralph Frye Jr., even knew what he was saying. What had mattered to Michela--all that mattered--was what the jury thought.
Michela believed powerfully in the notion that jurors alone were the finders of act. He would never overrule a verdict or tell a jury he disagreed. Juries were the great defense against abuses of power, including his own. If the jury chose to believe Ralph Frye and Gayle Potter, that was it for Michela. The jury had listened to Frye whine on the witness stand, listened to him go on and on and on. It was up to the jury to fathom that, and they'd fathomed that Joe Burrows was guilty.
Not even Joe Burrows' final desperate plea before sentencing--"I'd like to ask the court a question. Just whose job is it to see that justice is done?"--had swayed the judge. Michela sentenced Burrows by the book. He could discern no mitigating circumstances, so by Illinois law, Burrows looked to be a suitable candidate for the executioner. "It is the judgment of this court," Michela had proclaimed on Aug. 1, 1989, "that this defendant be hereby sentenced to death."
Now, almost exactly five years later, Burrows was back before him, expressionless at the defense table, handcuffed at his wrists, shackled at his waist and ankles. Sitting behind him, family and friends were nervously inching forward in their seats. Standing at his side, defense attorney Kathleen Zellner was talking.
"I cannot cite any precedent for Your Honor because there is none," she was saying. "Maybe that should tell us something about the enormity of the tragedy played out in this courtroom... . It is time for the truth to prevail in this courtroom."
The words had to grate on Michela. I don't get into truth, the judge liked to observe. It's what's provable that matters. You have to separate what you believe from the facts. Faith is for Sundays.
"It is time for these shackles to come off," Zellner was saying. "I am asking Your Honor to grant my motion because it is right and just. It is time, Your Honor, to send Mr. Burrows home."
From Death Row to freedom in a morning--the notion left the lawyers in Michela's courtroom full of wonder. But so did all that had emerged since the day Michela condemned Burrows. Over four days in late July, at a special hearing in Michela's courtroom, they'd all listened, transfixed, to a cascade of revelations. With the hearing over, Michela no longer needed look to a jury. Finally, it was his judgment that mattered. He did not hesitate. He nodded at a prison guard, who began fumbling to remove Burrows' manacles and leg irons. A moment later, the chains clanged to the courtroom floor, echoing to the high ceiling. Burrows' wife, Sherri, rushed into his arms.
Much has followed this extraordinary moment in an Illinois courtroom. The Burrows family has celebrated, the murder victim's family has wept, the news media, TV talk shows and movie producers have scrambled. Judge Michela has been hailed, Kathleen Zellner cheered, the legal system studied.
Still, the story is not over. Despite her victory, Zellner plans to appeal Michela's ruling. She admires what she calls the judge's "gutsy" decision, but she laments what she regards as Michela's reluctance, in his ruling, to acknowledge just how an innocent man came to spend five years on Death Row. She wants responsibility fixed. She wants it understood that judges and prosecutors and defense attorneys must look to themselves, not the legal system's thicket of rules and procedures, for justice.
"The judge," Zellner maintains, "is not facing up to what happened."
William Dulin's body, clad in long johns, lay face up on his living room floor for 36 hours before his daughter Patricia discovered it at 8 a.m. on Nov. 8, 1988. Called soon after to Dulin's farmhouse in a remote reach of central Illinois' Iroquois County, about nine miles east of Watseka and 75 miles south of Chicago, state crime scene technician Tommy Martin found no signs of forced entry and no fingerprints.
A walk through the house did yield some evidence, though. Two holes and two deflection marks suggested that four shots had been fired toward the ceiling and walls. Dulin's broken fingernails and drops of blood suggested a struggle. A .22-caliber bullet in Dulin's neck suggested a murder.
That was all authorities had until a bearded man with dark bushy hair, wearing a shirt embroidered with the name "Chuck" and "K & C Auto," walked into the Iroquois Farmers State Bank early that afternoon. He wanted to cash a yellow counter check for $4,050--a check that had William Dulin's signature on it. Iroquois County was too small and self-contained for such a maneuver. The bank's 86-year-old chairman had known Dulin for 70 years, and considered him a good friend. So had others at the bank. Dulin, a small, frail man, born in the first year of the century, had worked in factories as a youth, then settled into farming. He'd been known as "the apple man" because of the fruit and cider he sold from his small orchard.
Bank teller Vesta Metz realized at a glance that the signature on the check wasn't Dulin's. She also knew what had happened to Dulin; after all, there'd been just five murders in 13 years in Iroquois County. "I'm sorry, sir, we can't cash this check," she said. "This gentleman was found dead this morning."
Bank officials were dialing the Iroquois County Sheriff's office even as their visitor rushed to his car. Twenty minutes later, five miles west on County Road 1200, Sgt. Randy Eimen and Investigator Robert George stopped a black Oldsmobile Cutlass that fit the description provided by the bank. Inside were the bank customer, Chuck Gullion, and a short, heavyset 32-year-old woman with a round face, close-cropped blond hair and the prim manner of a schoolmarm. Gayle Potter had a bloody cut on the back of her neck and bruises behind her left ear, but no check. Halfway down the road, she'd torn it in four pieces, set the pieces on fire and tossed the ashes out the window.
"Well, hello, Gayle," Investigator George said, standing on the car's passenger side.
The two knew each other fairly well. Two years before, George had been obliged to bring Potter back to Illinois from Texas to face auto-theft and forgery charges; on the plane ride home, they'd talked all the way.
In fact, past brushes with the law made Potter's a familiar face to all those at the Iroquois County Jail--Eimen, George, Sheriff Joseph Mathy, State's Attorney Tony Brasel--who gathered that day to question her. At first, Potter denied any connection to Dulin's murder, insisting that the old man had given the check to her companion for home repairs he'd done. Then, crying, she said she might have "set Dulin up" by leading others to believe he had lots of money. Finally, she allowed that yes, they might find her fingerprints at Dulin's house, but she didn't shoot Dulin. She'd stolen the check from him three months before, while helping him clean his garage.
There is some dispute about what next transpired. Sheriff Mathy says he simply told Potter that she was lying, and "the only way you can help yourself in this deal is to tell us what happened." Gayle Potter recalls being told they were going to "fry me like a piece of chicken" if she didn't talk. Potter also recalls being told that "I had better come up with somebody who did that murder or it was all going to fall on me."
Whatever was said, by evening Potter indeed had come up with somebody: Joe Burrows, helped by his young sidekick Ralph Frye.
She knew Dulin, Potter told the investigators that evening, because her mother had taken care of Dulin's late wife. Dulin sometimes lent money to Potter. On Nov. 6, the night of the murder, she needed money: She was a drug dealer and owed her supplier $3,000 for cocaine. At a 9 p.m. meeting at a Mobil station in Urbana, the supplier threatened her. So did the supplier's "collector"--Joe Burrows. Both had yanked her around and pistol-whipped her.
Burrows, knowing of her friendship with "the rich old farmer," suggested she borrow the money from him. Then Burrows and Frye forced her into a Chevy pickup truck--a blue pickup with rusted doors and primer spray and a missing front grill--and drove 65 miles north to Dulin's home. Once there, the two men pushed their way into the house with her. When Dulin refused her request for a $3,000 loan, Burrows pulled a gun--a .22 revolver with a wooden handle and a five-inch barrel--and ordered Dulin to write a check. Burrows and Dulin began struggling. She tried to stop Burrows, but Frye knocked her to the ground. She heard shots fired. She turned to see Dulin drop to the floor.
After that, Potter said, the men shoved her into the truck. Burrows handed Frye the revolver, went back in to wipe off fingerprints and came back out five minutes later with Dulin's pants, BB gun and personal papers. Burrows and Frye drove her back to Urbana. Before leaving her at her trailer, they beat her and warned that she still needed to come up with the money. That was why she'd sent Chuck Gullion to cash the check. Gullion, she explained, was the one who'd run up her $3,000 cocaine debt.
It's unclear why Iroquois County authorities, after listening to this fertile and ever-shifting story, so readily embraced it on the first day of their murder investigation. To be fair, Potter did not mention that the .22-caliber revolver used to kill Dulin belonged to her. Or that she had called Dulin at 3:51 p.m. that day and arranged to visit him, hours before Burrows was said to have forced her into his pickup. Or that she disliked Joe Burrows because his brother, who lived five doors down in her trailer park, had blamed him for a recent burglary at her trailer. Or that since age 15, psychologists had been saying her "sugary sweet" manner concealed "an extremely effective manipulator" full of "untrue, bizarre stories."
Of course, authorities would not have needed Potter's help in these matters if they had tried independently to verify her story. They did not, however, even though they knew she had a rap sheet and a cocaine habit. Instead, they swung into action.
By midnight, Sgt. Eimen and Investigator George were on the road south to Burrows' home in Villa Grove. By 12:45 a.m. they and the state police had surrounded the home with shotguns, and were pounding on the door. By 1 a.m., Burrows was spread-eagled on his living room floor, insisting that he didn't know a Bill Dulin.
"Are you out of your f------ minds?" he inquired. "Where the hell is Iroquois County?"
Unlike Gayle Potter, Burrows, then 35, looked like a criminal. Tall and burly at six feet and 200 pounds, he had tattoos and crooked teeth and an uneducated manner of speech. He'd bounced among foster homes as a boy, skipped school often and worked sporadically as a self-employed house painter. A former Villa Grove police chief recalled the young Burrows as "ornery" and occasionally "a troublemaker." He'd spent 10 of the previous 15 years in prison for three felony burglaries, one felony possession of burglary tools and one misdemeanor theft. But none of his crimes had ever involved violence. Nor did anything investigators find at Burrows' home early Nov. 9 suggest he'd turned to violence. Burrows had not a scratch on him, nothing that would suggest he'd been in a struggle hours before. He had two vehicles in his driveway, but neither was a blue pickup.
Nonetheless, the investigators felt they had their man. The interrogation back at the local county jail took just seven minutes, by Burrows' count.
By 4 a.m., Eimen and local deputies were banging on the door of Burrows' friend, Ralph Frye, at Ehler's Trailer Park in Urbana. Minutes later, the sergeant was handcuffing Frye and reading him his rights. By 5 a.m, Frye was in the booking room of the local county jail, listening to Robert George say he'd killed an old man named Dulin up in Sheldon.
This is all wrong, Frye tried to say. Where the hell is Sheldon? Where the hell is Watseka?
It is not hard to see how Frye might have had some trouble with his geography that morning. For one thing, he was groggy, both from being awakened and from the sleeping pills and painkillers doctors had given him two days earlier for severe stomach cramps. For another thing, even when wide awake, Frye was not particularly bright.
Frye was sallow-skinned and slight, 5-foot-8 and 150 pounds, with shoulder-length dark brown hair, thick glasses and a sparse mustache. Found to have a learning disability, he'd spent most of his public schooling in special-education classes and was eventually assessed as having a "borderline" IQ of 76. A school psychologist thought Frye a "rather pleasant boy" who "wants to do well" but "does not have sufficient ability to achieve successfully at the high school level." He dropped out in the 11th grade, found occasional jobs at fast-food restaurants and smoked marijuana at every opportunity. At the time of his arrest for Dulin's murder, he was on probation in Champaign County, having pleaded guilty to a $48 burglary.
"You know where Watseka is," George told Frye that morning of Nov. 9.
"I did nothing wrong," Frye insisted.
"We know you were there," George replied.
Soon after, Sgt. Eimen left the room, leaving George alone with Frye. There is much dispute now over precisely what happened during the 30 or so minutes that George and Frye were together.
Frye says George "got up in my face" and "threatened to lock me up for a very long time." Frye says George---who is about 5-foot-7 and 300 pounds--told him what to say, detail for detail, then turned on a tape recorder. George signaled with head shakes "whenever I messed up," Frye says, and stopped the tape several times so he could adjust his story.
George says none of this happened--he didn't threaten, didn't get in Frye's face, didn't point a finger, didn't feed Frye his story. He didn't "recall" stopping the tape--"it would have been possible that I did"--but at any rate he never signaled Frye with head shakes. Frye simply confessed, on his own.
Whichever is the more accurate account, it is undeniable that at two minutes before 6 a.m., the corpulent investigator emerged from the interrogation room with Ralph Frye's taped statement in hand. Although Frye had an alibi--his girlfriend's mother and brother both would later testify they saw him the on the night of Dulin's murder--in his statement he readily placed himself at the scene of the crime.
Yes, Frye says near the start of this tape. Yes, he drove up to Iroquois County on Sunday, Nov. 6. He rode to Dulin's house in a blue pickup truck, "somewhat banged up," with Joe Burrows and Gayle Potter.
Was it night or daytime when you went there? George asks.
"Daytime, nighttime," Frye responds.
"Nighttime," George affirms.
The story Frye then tells eventually would become the core--if not the total--of the prosecution's case. Despite all the discord connected with this march to Death Row, virtually everyone involved--the lawyers, the sheriff, the trial judge, the state Supreme Court--now agree that Ralph Frye's taped statement convicted Joe Burrows.
Once they were in Dulin's house, Frye says on this tape, Potter started yelling when the old man wouldn't loan her money. Then Burrows started punching the old man. Frye protested, but Burrows shoved him aside. They were in a hallway. Burrows pulled out a revolver--it looked like a .38--and began beating Dulin with it. When the old man grabbed for Burrows' arm, two shots were fired into the air. Burrows and the old man struggled, both of their hands on the gun. The gun fired. The old man fell to his knees. Burrows hit him, knocked him out, took his pants, wallet, checks and gold money clip. Driving away in the blue pickup, Burrows rifled through the old man's pants, then threw them out the window. Frye was sure about that--Burrows threw the pants out the window about three miles outside of town. Back home in Champaign County, Burrows drove out a dead-end road on the far side of Willard Airport and dumped the pickup into a ditch.
At this point near the end of his taped statement, Frye's account suggests a total of three shots. There were, however, five shots evident at Dulin's house. Whether George knew this as he questioned Frye, whether crime technician Tommy Martin had mentioned it while at Dulin's house, remains an issue. On the tape, though, it seems clear that the number of shots concerns George. When Frye finishes his narrative, George poses a critical question.
"Now, thinking about it, Ralph," George asks, "how many shots were fired in the residence?"
Ralph replies: "Two to the ceiling, altogether there must have been five shots."
George: "Five shots, fired."
Ralph: "Yeah, because two of them went in the ceiling and one of them went into the old man. No, three of them went into the ceiling, yeah ... There were four shots before the old man, it ricocheted off the wall."
"Is there anything else, Ralph?" George asks as Frye finishes his account.
"No," Frye responds, "except for that I hope that this is taken care of right away. I don't know what the hell is going on. I know what is going on, but this is very unusual for me."
There were, of course, some discrepancies between Gayle Potter's and Ralph Frye's stories. Potter mentioned no physical beating; Frye had Burrows beating Dulin in the face with his fists and the gun. Potter said it was a .22 revolver, Frye a .38. Potter said she tried to intervene, Frye said he did. Fundamentally, though, Potter and Frye had told the same story. Frye had provided the critical corroboration to Potter's tale. He'd also provided details Potter hadn't mentioned and the police insisted that they hadn't known--the money clip, the pants, the holes in the ceiling, the number of shots. How could Frye, awakened from a drugged sleep, match Potter's story so closely, without ever talking to her? How could Frye know what even the police didn't know? Above all, why would Frye say he was at the murder scene if he was not?
Frye's statement, the Illinois Supreme Court would observe three years later, "was particularly telling ... He can hardly be considered someone who was not present at the time the crime occurred ... Frye's testimony was very probative of defendant's guilt."
By 6 p.m. on Nov. 9, Frye, Potter and Burrows had all been booked into the Iroquois County Jail on charges of first-degree murder and armed robbery. There, five days later, using the phone available to all prisoners in her upper-center cellblock, Potter called her boyfriend, Rick Gillespie, with whom she shared a trailer.
"The gun's in the trailer, behind the chair at the front door," Potter whispered. "You need to get rid of it. You need to get rid of that gun."
It took just eight days for Gayle Potter's and Ralph Frye's stories to start unraveling. On Nov. 17, Investigator George interviewed and took taped statements from Chuck Gullion, Potter's partner in the check-cashing caper, and Rick Gillespie, Potter's boyfriend. Both flatly contradicted Potter and Frye. Potter didn't drive up to Watseka with Burrows and Frye in a blue pickup, they informed George. Potter, at her request, drove up with them in Gullion's black Oldsmobile Cutlass.
Once in Watseka, Gullion said, they went to the apartment of Potter's cousin. Gullion and Gillespie watched TV there while Potter borrowed the black Olds and left "to take care of some business." Shortly after midnight, Potter returned, dazed and covered with blood from a head wound. Seeing her, Gillespie passed out. A drug deal had gone sour, Potter explained.
In her pocket was more than $250 in cash. In the Oldsmobile, on the floor behind the driver's seat, underneath a pair of tan dress pants, were Potter's .22 revolver and a black plastic BB gun. While Potter cleaned up, Gullion unloaded five fired rounds and four live rounds from the .22 revolver. Later, they and Gillespie smoked a bowl of marijuana, then drove back to the Town and Country Trailer Park in Urbana. There Potter gathered up the two guns and the pants, and with Gillespie walked into their trailer.
Statements by Potter's cousin and Gillespie precisely matched Gullion's. None of them saw Joe Burrows or Ralph Frye that night. None of them heard Potter mention Burrows' or Frye's name. None of them knew anything about a blue pickup truck. Gillespie, though, did know about the murder weapon. After giving his statement, he led George to the garbage-filled vacant lot where he'd hidden Potter's .22-caliber pistol.
Years later, Judge Michela would say that Potter's "inconsistent statements on the date of arrest should have raised great doubts as to the truthfulness of what she said. To accept her final statement of Nov. 8 as true, once the story of the blue pickup proved false, is questionable." Yet that is just what prosecutor Tony Brasel did. In fact, Potter and Frye's now-suspect statements composed the heart of the case he presented to a grand jury in late November of 1988. He chose not to introduce Gullion's and Gillespie's contradictory accounts. In Brasel's version of events, Gayle Potter still was driving up to Watseka with Burrows and Frye in a blue pickup.
Brasel had long been a controversial figure. Elected Iroquois County state's attorney in 1980, just two years after passing the bar, he raised eyebrows from the start. In his first year, he failed to disqualify himself in two cases involving former clients. In his second, he failed to disqualify himself when his brother appeared in court on a speeding charge. Eventually, the complaints about Brasel grew more serious, mostly involving accusations of excessive zeal and dirty tricks and duplicitous double-dealing with other lawyers. By the time of Dulin's murder, Brasel apparently had worn out his welcome in Iroquois County--on the day Gayle Potter was arrested, Brasel had lost his bid for reelection. He remained on the Dulin case as an appointed "special prosecutor," however, because the man who unseated him was then the county's public defender, and had represented Potter previously.
Just why Brasel found Potter so believable from the start, and so quickly eliminated her as the murderer, remains a subject of much speculation. Perhaps it was Gayle Potter's uncommon wile that drove him--other lawyers, witnessing her courtroom performance, have marveled at "the way Potter was able to lie," at how her initial statement and later quite different testimony were spoken with "the same sincerity" and "no difference in inflection." If not that, perhaps it was excessive prosecutorial zeal, or an abiding belief that Burrows was the killer--"If I felt Burrows was not guilty, I would have never tried the case," the prosecutor declared last January, in one of the few comments he has offered to journalists. Whatever the impetus, Brasel, in early 1989, began trying to weave a single consistent story from the various conflicting statements he'd collected.
That effort surely wasn't harmed when Sheriff Mathy, near the end of January, transferred Ralph Frye to a cell next to Gayle Potter's. Mathy--who, it should be noted, was Brasel's campaign manager--now regrets this arrangement, although he calls critics of it "armchair quarterbacks." He also maintains that his jail is so small, with just 30 cells on two floors, that wherever he put Frye, he could have "yelled back and forth" with either Burrows or Potter. Yelling wasn't necessary where Frye ended up, though. Between his cell and Potter's was a food slot, through which the two prisoners could, and did, talk for hours every day. Potter and Frye describe their conversations in similar terms.
"I scared the living daylights out of Ralph," Potter says. "You need to see him. He's borderline retarded, real slow. It was not hard to coerce him. I told him, 'They're going to put us on Death Row unless you go along with my story, unless you do it Tony's way.' I worked on the details with him over and over." Potter grins at the memory. "I convinced him they wouldn't believe he wasn't there."
Frye agrees: " 'We gotta make it sound better, then they'll help us,' she says to me. She talked about what to say, what happened, how we got there, how we left. We rehearsed. They wanted to make sure it was all consistent. I tried to say this was wrong, that I was never there, but what could I do? What could I do?"
Frye went to trial first, in late February in the Iroquois County courthouse, with Judge Michela imported from Kankakee County to preside because the local judge had a conflict of interest. Frye had no occasion then to demonstrate what he'd learned in jail, for his court-appointed defense counsel, Michael Jones, didn't call him to the stand. Jones didn't call Frye's alibi witnesses, either, or move to suppress Frye's taped statement, even though he was aware of Gullion's and Gillespie's contradictory accounts. The jury, after listening to Gayle Potter's testimony and Frye's statement, readily convicted him of armed robbery and murder. He was not then sentenced and sent to a state prison, however. Because of an Illinois rule requiring equal sentences for the same crimes, Michela wanted to wait until the others were tried. So Frye remained in the Iroquois County jail cell adjacent to Potter's.
Brasel now also joined in the communications between Potter and Frye, in a series of jailhouse meetings allowed, but not attended, by the two prisoners' attorneys. Jail logs and Brasel's billing statements show he had 25 meetings with Frye and 12 with Potter. Brasel describes these as part of the normal preparation for trial; Potter and Frye remember them differently.
"Brasel was threatening life or 85 years if I didn't cooperate," Potter says. "Brasel was promising immunity if I did. As different pieces of evidence were discovered and explained to me, I would change the story to fit them... Tony Brasel would supply me with the fact and then I had to supply the supporting story for it."
Frye's account is similar: "Brasel was talking about a 35-to-65-year sentence, and saying I could help myself. He told me the taped statement wasn't very good the way it was stated, so he thought that it would be better if we would prepare the wording a little better...I'd say this is wrong, but Brasel would say, 'Well, if you don't help me, I can't help you.' "
Brasel says none of this happened. He denies making threats, offering immunity or feeding evidence. He also denies ever meeting with Potter or Frye without Sheriff Mathy in the room, even though the jail logs don't always indicate Mathy's presence. All he ever asked of his two star witnesses, Brasel says, is "the truth." Potter's charges, he flatly declares, "are a lie."
Whoever is right, by the time Joe Burrows went to trial for the first time in mid-March 1989, with Judge Michela once again presiding in Iroquois County, Potter's and Frye's initial stories had evolved considerably, and to great effect.
On the day of Dulin's murder, Potter now testified, she met her drug supplier at the Mobil station around 4 in the afternoon, not 9 at night. There, Burrows and Frye did not push her into a blue pickup and drive her to Watseka, but rather, told her to meet them in a parking lot in Watseka between 10 and 11 p.m. Potter drove to Watseka with Gullion and Gillespie, dropped them at her cousin's apartment, then met Burrows and Frye at the parking lot. The two men followed her to Dulin's house, they in a blue pickup, she in the black Olds. When the old man let Potter into his house, Burrows and Frye pushed their way through the front door. When Dulin refused her request for a loan, Burrows pulled a gun and ordered him to write a check.
To Potter's surprise, the gun Burrows pulled was her own .22-caliber pistol; he must have taken it from her trailer. Dulin reached for his BB gun; he and Burrows struggled. Potter tried to intervene but Frye forcibly stopped her. Burrows shot Dulin in the head. Potter became hysterical and wanted to call the police. Burrows held her head over Dulin's desk and pistol-whipped her, causing her to bleed on the desk. Burrows placed the murder weapon, Dulin's gun, some papers and clothing into a paper sack, put the sack in the black Olds, then left with Frye in the blue pickup. Potter returned to her cousin's apartment in the Olds, then Gullion drove her and Gillespie back to their trailer in Urbana, carrying the paper sack in as he dropped them off. Potter did not know what was in the sack.
It is impossible not to notice that Potter's story now was almost entirely consistent with Gullion's, Gillespie's and her cousin's statements. So, it turned out, was Ralph Frye's. When he took the witness stand, his story had changed, too--in exactly the same manner as Potter's had. In truth, their testimony now dovetailed with all the evidence in the case.
There was in fact no hallway in Dulin's house, so now Frye said he'd made a "mistake" about seeing a hallway.
The murder weapon was a .22-caliber, so no longer did Frye think it was a .38.
There was no evidence of head wounds on the old man, so now Burrows had never hit him with his gun or fists.
Potter's blood had been found on the desk, so now Burrows had beat her head against that desk.
No pants had been found in a three-mile radius of Dulin's home, so now no pants had been thrown out a car window.
The blue pickup had never been found at Willard Airport, so now it had not been dumped there.
Potter's and Frye's testimony did more than just match the evidence, though. Their testimony now, critically, resolved the troublesome fact that Potter's gun was the murder weapon, and was found at her trailer. Their story explained how Potter's gun came into Burrows' possession--it had been stolen from her trailer--then explained how the gun moved back to Potter's trailer after the murder--Burrows dropped a bag containing it into Gullion's Olds.
The jurors apparently didn't buy all this. Perhaps they wondered why Burrows was unscathed after his struggle with Dulin. Perhaps they wondered why Burrows would hand over to Potter the very gun he'd just used to kill Dulin--and to pistol-whip her. Perhaps they wondered how Burrows could be the killer when it was Potter's gun, Potter's blood and Potter's effort to cash Dulin's check.
Whatever the reason, after 11 hours of deliberation, the jury at Burrows' first murder trial hung, unable to reach a verdict.
During the interim between Burrows' first and second trials--mid-March to late May of 1989--Frye remained in his cell next to Potter, and continued to talk to her and Brasel. But now others began talking to Frye as well. Everyone understood that Gayle Potter was an inconsistent if not unbelievable witness; everyone understood that Frye's confirmation of Potter's story was critical. Everyone also understood that Frye was a weak link, ready to bend either way.
With so much at stake, the gloves came off. What unfolded in the Iroquois County Jail during the spring of 1989 was nothing less than an unvarnished battle for control of Ralph Frye's soul.
In early April, Frye's sister Kim reached him by phone from her home in Buffalo. She had received a letter from Joe Burrows' wife, Sherri, who believed that Frye was getting "a raw deal." At Sherri's urging, Kim told Frye to call Burrows' lawyer Ron Boyer, and write a letter to Judge Michela.
Following his sister's advice, Frye called the lawyer. There is dispute now over just what was said. Frye sometimes "can't remember," and sometimes claims Boyer promised to "help him get out of jail" if he wrote a letter. Boyer insists he told Frye only that he'd do "whatever he could to get the truth out," and that "the truth would exonerate him." Brasel suggests other prisoners, one represented by Boyer, egged Frye on.
Whatever the impetus, on April 17, Frye wrote to Michela, declaring that he'd never been to the murder scene. "Dear Sir, my name is Ralph E. Frye Jr.," he began. "I would like to be as honest as I can be. The morning I was arrested... I tried to explain I had no idea of what was going on, which is true. The two investigators from Watseka were harassing me and telling me some things about what happened up there and what was taken from Mr. Dulin's house. I gave them a statement to get them off my back... I had no other choice but to cooperate... My lawyer believed everything I said on the tape. So I would like to get a new attorney if possible... Miss Potter did talk to me and tell me a few things on what did happen out there that night. The reason I got on that witness stand to testify is the simple fact that I was looking at a very long prison term... My life was at stake."
When Judge Michela received this letter, he promptly appointed a public defender to represent Frye. Then the scramble started. Before this new lawyer could act, Frye's attorney Michael Jones visited him. Prosecutor Tony Brasel stopped by more than once. Ron Boyer maintained phone contact. In this contest, only Frye's relatives weren't successful, their efforts to reach him no doubt impeded somewhat by two jail log entries, one instructing that "Ralph Frye's sister will not be permitted in facility for visitation," the other saying, "Advised by Sheriff Mathy if Frye's grandmother brings some candy and cookies, to get in touch with the Sheriff." Mathy later testified that he had "no independent recollection" of such orders and "no idea" why he would issue them.
Some of what Frye heard in these critical days involved not legal advice but rumors that had long informed Iroquois County legal circles. Boyer told Frye that Brasel was a drug user; Brasel told Frye that Boyer was an alcoholic. But eventually, Frye's advisers managed to focus on legal matters.
As Frye later recalled it, Jones told him he'd made "a big mistake" in writing the letter, that the judge would now give him a lot more time. The prosecutor, Frye recalled, asked, "Can't you see what Boyer's doing to you? He's not helping you.... He's helping Mr. Joseph Burrows." And Boyer, he remembers, told him that it was his testimony that was convicting Burrows.
Plainly, Frye was overwhelmed. Ten days after writing his letter to the judge, he retracted it in a sworn affidavit. Then, 11 days later, he reversed himself again, urgently summoning Boyer to a jailhouse meeting, where--over Sheriff Mathy's objection and attempt to block Boyer's entry--Frye gave a taped recantation, denying any involvement. Even as Boyer was taping it, Gayle Potter would later testify, she was on the phone advising Brasel "if you want to save your case, you'd better get your ass over here." Within minutes of Boyer's departure, Brasel was at the jail, huddled with Frye and Mathy.
Once again, accounts of a meeting vary. Frye says Brasel "was getting upset. The man was prancing around the room, he slammed his hands on the desk, he told me that if Mr. Burrows walks free, that I could get nailed for the crime." Brasel says he calmly told Frye he "wanted to know what the truth was." All agree that by the time Brasel left, after an hour-and-a-half conversation, Frye yet again had reversed himself. He had decided that his letter to the judge and his recantation statement to Boyer were "mistakes." Frye was back to corroborating Potter.
There matters stood when Joe Burrows' second murder trial began in late May of 1989.
From the moment he first offered it, Joe Burrows' account of where he'd been the day of Bill Dulin's murder had been precise, detailed and unchanging.
He'd worked on his '78 Chevy cargo van outside his home all day. A friend, Murray Kellems, an Urbana garbage-truck driver, had helped him. Around 7:30 p.m., he and Kellems had driven Burrows' '79 Pinto to Potomac, to visit Burrows' brother Dennis. They'd gotten there a little before 9 p.m. His brother's girlfriend, Lynn Pine, had answered the door, then shut it in Burrows' face, for she didn't like him. Burrows had knocked again, and Dennis had let them in. They'd talked and watched television with Dennis, Lynn and their visiting friend, Jana West, until just about midnight. Then Burrows and Kellems had left, arriving back home about 1:30 a.m.
At Burrows' first trial, defense attorney Ron Boyer had called to the stand three of the key people involved in this narrative--Dennis Burrows, Lynn Pine and Murray Kellems. (He was never able to locate Jana West.) All three corroborated Burrows' story, but at times, Boyer would observe later, they sounded "inarticulate and uneducated and angry." They did not, he believed, "make a credible presentation on cross-examination by Mr. Brasel." Kellems, for example, grew agitated when Brasel brought up his previous theft and burglary convictions, snarling, "What the hell does my past have to do with this trial?" More damaging still had been Brasel's questions about just what they'd watched on TV that night. When Dennis Burrows said "Gunsmoke," Brasel quickly established that "Gunsmoke" wasn't broadcast on Sunday evenings.
For these reasons, as well as a sense that with Frye's recantation on tape, he had an "overwhelming" case--even though Frye now denied that tape--Boyer decided against calling Burrows' alibi witnesses at the second trial. But the trial--held in Michela's own Kankakee County courthouse because the judge had tired of commuting to Watseka--did not unfold as favorably for his client as Boyer had expected.
First, prosecutor Brasel refused to grant Rick Gillespie and Chuck Gullion immunity, so these two critical witnesses exercised their Fifth Amendment privileges not to testify. Then Gayle Potter embellished her earlier statements by testifying that with Bill Dulin on his knees, "crying and out of breath," Joe Burrows had "smiled" as he pulled the trigger. (Potter, years later, would testify that she'd added this detail because Brasel had told her "I was going to have to make the death of Mr. Dulin more graphic ... and more heinous.") Probably most damaging, however, was Frye's agitated exchange with Ron Boyer as the jury listened.
"Didn't you tell me that you could also get me out of jail if I had stuck to this taped statement?" Frye snapped at Boyer as Burrows' lawyer questioned him on the witness stand about his now-denied recantation and renewed support of Potter's story.
"Ralph, there is no question to you right now," Boyer responded.
"Well, I'm handing you one."
"To answer your question, I told you that I would try."
"No, you didn't tell me that, you said you would if I stuck to the taped statement."
Boyer couldn't effectively respond without resigning as Burrows' attorney and testifying; this he declined to do and Michela declined to require.
It didn't matter that Frye never could offer a reason, other than "pure coincidence," why he and Potter had both made the same "mistake" of initially saying they'd driven up to Watseka with Burrows in a blue pickup. It didn't matter that the brother of Frye's girlfriend swore that Frye, at 10:20 on the night of Dulin's murder, opened the door for him at the Urbana trailer they all shared. It didn't matter that the now-distraught Boyer, flatly calling "master con artist" Gayle Potter the true killer, implored the jury: "Don't you see what they are trying to do to Joseph Burrows?" In the end, the jurors chose to believe the prosecutor's version of events.
On June 6, after deliberating three hours, they convicted Joe Burrows of first-degree murder. The key, jury foreman Tom Hendrickson would say later, was just what the lawyers had expected it would be--Ralph Frye's corroboration on the witness stand of Potter. "I don't see why you'd say you were at a murder scene when you weren't," Hendrickson explained. "And how you would know evidence police didn't know about."
The jurors had taken so little time and seemed so certain that Boyer decided it would be wiser not to let them determine Burrows' fate. Waiving the right to a jury sentencing, he left it to Judge Michela to decide whether Joe Burrows should live or die.
Michela at 56 is a garrulous man, respected in his county and not much inclined toward the isolation of a judge's chambers. After 22 years on the bench, he remains well-connected with his region's circuit of lawyers and law-enforcement officers--enough so to call Sgt. Eimen "Randy" and Sheriff Mathy "Joe." He also remains personally opposed to the death penalty. It is hard to say precisely what the judge thought as he faced the momentous question handed to him by Ron Boyer.
Michela's own comments over the years offer decidedly mixed indications. On the bench midway through Burrows' second trial, frustrated over Frye's vacillations, he had muttered, "I don't know if this young man was ever in Iroquois County until he was brought there on the 9th of November... I'm not sure if any of us know the truthfulness of any statement ever given in this trial by anybody." At Burrows' sentencing hearing, he spoke of "the unwillingness of this court to believe (Gayle Potter's) testimony" and noted that the physical evidence "seems to all have been found in the presence and in the possession of Gayle Potter." Yet at that same hearing, Michela also talked about "the overwhelming situation of a young man ... being awakened in the early hours of the morning seemingly not having time ... to fabricate a story putting himself at the murder scene and testifying as to what occurred...." And this past fall, speaking in his chambers after finally freeing Burrows, Michela declared that he'd found Frye "compelling and believable," and because of him, would have voted to convict Burrows if he'd been on the jury.
In the end, Michela says, it just doesn't matter what he thought. "Even if I'd not shared the jury's view," he observes, "I would have sentenced him anyway. My belief in the jury system is that unshakable."
The judge's outlook derives from more than simple faith: He regards the jury system as a necessity. You need an organized way to separate facts from belief, Michela thinks, and that requires a system with precisely defined roles for all involved. The police and prosecutors fight to convict, the defense attorney fights back for the accused, the judge referees, the jury decides. "You are the sole judges of believability of witnesses," he always instructs juries. Did citizens instead want the "inquisitorial" system of some European countries, where judges assembled the evidence, questioned the witnesses and delivered the verdict? Did citizens really want to give this much power to individual government officials?
Joe Burrows, for one, appeared more than willing to do so as he stood before Judge Michela at his sentencing hearing on Aug. 1, 1989. The function and moral responsibility of judges--and everyone involved in the legal system--was much on his mind that day.
"First of all, I'd like to ask the court a question," Burrows began. "Just whose job is it to see that justice is done? Is it mine, Mr. Boyer's, Mr. Brasel's, or whose? I've asked myself over and over again, isn't there any justice in this country? So many people know that I'm innocent, but yet here I am about to be sentenced.... Tell me in all honesty that you believe I'm guilty.... I don't want to be sentenced to death, but I can't help wondering (if it's) preferable to living in a world where such corruption and injustice goes unchecked... What can a man in my position say?...I'm ready for you to pass sentence on me."
Michela was ready as well. As he read it, Illinois statutes insisted that if first-degree murder convictions met the criteria listed for Death Row cases, the penalty was death, unless the defense could establish mitigating circumstances. Michela could discern none. This defendant, Michela declared, is hereby sentenced to death.
Not until then, after the tolling of Burrow's fate, were Frye's and Potter's cases resolved, and their sojourn in adjoining cells finally ended. In early September, Michela sentenced Frye to 23 years and dispatched him to the Logan Correctional Center in Lincoln, Ill. Soon after, before another judge, Potter was tried and convicted of first-degree murder, forgery and armed robbery, and sentenced to 30 years in prison.
With three convictions and a death penalty--his first ever--to show for it, Tony Brasel's tenure as Iroquois County special prosecutor finally was over.
It was with considerable reluctance that Naperville, Ill., lawyer Kathleen Zellner took a phone call one morning in late December of 1992 from Andrea Lyon, director of the Capital Resource Center. The center, a branch of the Illinois appellate defender's office, specializes in defending indigent Death Row clients. Zellner was just finishing up a grueling case for the center involving a serial killer. She wanted nothing more than to return to her normal practice of business law.
"How would you like another?" Lyon inquired.
"No way," Zellner replied. "I've had it."
"But this one is innocent," Lyon said.
Then 43, Zellner was a newcomer to the Death Row defense bar, and a decidedly odd one. Raised in Oklahoma by parents who were scientists and liberal Democrats, she'd married young, to a man who is now a CitiCorp executive, and had evolved into a self-described conservative Republican who supported the death penalty. By 1990, after several stops, she was practicing at a small business-law firm in Chicago's western suburbs. She was also growing restless.
Zellner had once dreamed of being an FBI agent and loved investigating. Constitutional law also fascinated her. The two interests merged in criminal work, so that's what Zellner eventually decided she wanted to do. After reading an article about the Capital Resource Center, she called and volunteered to handle a death penalty case. It had given her homosexual serial killer Larry Eyler, and before long she was weaving, in courtrooms and the news media, a Byzantine tale of child prostitutes, pedophiles, prosecutorial misconduct and defense attorney conflict-of-interest. She was also fingering a new suspect--a library science professor who'd befriended Eyler. By the time it ended with the professor's acquittal and Eyler's death from AIDS, Zellner had opened her own practice and more than once had been placed under police protection because of multiple death threats.
"No way," Zellner said again to Lyon. "No way."
In the end, though, she couldn't resist.
"I'm not expecting you to rely on me saying I'm innocent," Joe Burrows told her in their first phone conversation. "Examine my case, examine the record. Make up your own mind."
Following Burrows' suggestion, Zellner grew increasingly astonished. By then the record had grown even more dubious than it was on the day Judge Michela condemned Burrows.
In late July of 1991, John Hanlon, a state public defender then representing Burrows, had managed to locate Jana West, the visitor whom Burrows had always insisted watched TV with them at his brother's house on the night of Dulin's murder. In a sworn affidavit, West unequivocally had affirmed that Burrows was at his brother's house on the murder night until past midnight. What's more, West said she visited Gayle Potter the next day at her trailer, where Potter said "she'd killed a man the night before because he had pistol-whipped her." West didn't call the police then "because I didn't believe her." West didn't come forward when Burrows was charged with murder because she didn't "care for him.... That was his problem ... and I didn't want to be involved in it." Besides, "I figured everything would be dropped because I know for a fact the man was not there at that time."
Three months after Jana West's emergence, Ralph Frye had yet again recanted his entire story in another sworn, taped statement. This time, the lawyers had made sure there'd be no appearance of coercion or promises; Burrows' attorney had arranged the interview through Frye's new appellate attorney, who attended and approved the taping. "What I'm telling you people now is the God's honest truth," Frye had said. "Nothing is going to change my mind."
Zellner couldn't believe that despite the whole preposterous record before her, the Illinois Supreme Court in March, 1992, had upheld Burrows' conviction, calling Frye's Nov. 9 statement "particularly telling."
Frye? Frye's taped statement sounded pathetic to Zellner. It was full of long pauses, full of leading questions. Frye didn't know right from left, Frye didn't know day from night, Frye could barely get up every day and get his pants on straight. Didn't anyone see how ridiculous it was that in his initial statement he gave the same lies that Potter gave in hers? Didn't anyone see that the cops must have fed him information?
The cops kept saying Frye gave them things they didn't know--the money clip, the pants, the wallet. But surely Dulin's daughters would've told the cops about missing wallets and money clips when they talked that first day; besides, none of those things had ever been found. The cops said Frye gave them the number of shots, but did he really? In his statement, Frye is talking about two shots, he's talking about three shots, then suddenly it's five shots. Are we supposed to believe the cops didn't get the number of shots--in fact, glean every possible detail--from their own crime technician at the murder scene? That Frye knew what the technician needed 48 hours to figure out? That Ralph's personal vocabulary included the word "ricochet?"
There was no point hanging an appeal on Frye, though--Zellner knew that. He had flopped back and forth so much he was worthless. So Zellner turned her attention where no defense attorney for Burrows had looked before--Zellner turned to Gayle Potter.
The two first met one morning in late March of 1993, in an interview room at the Dwight Correctional Center in Dwight, Ill. Zellner found the short, stocky woman to be pleasant, articulate and full of smiles. With her glasses, round face and congenial manner, she suggested a librarian to Zellner. But Zellner couldn't help noticing that whenever Potter tried to describe an emotion--sorrow about Dulin, for example--she sounded cold. It was as if she was mimicking the sentiment, rather than feeling it.
Potter would sometimes also veer from her otherwise rational conversation to make wild accusations, or to boast about her glamorous life as a big-time coke dealer. Conspiracies on the highest levels, cocaine parties with the state's top leaders, meetings with the Colombian cartel--all were related with even-voiced calm. She was, Zellner believed, delusional--a classic sociopath.
Others before Zellner had reached similar conclusions. Potter's record of psychiatric care stretches back to the age of 8; by her early teens she'd established a pattern of manipulative lying. A report from a junior high school psychologist in Camp Lejeune, N.C., describes Potter's history of telling "untrue, bizarre stories"--including one in which she accused her stepfather of rape, claimed she was pregnant and talked of getting an abortion. Other reports from a clinical psychologist at the Iroquois Mental Health Center, written in June of 1970 and 1971, describe Potter as always "giving the 'right' answers," but "not being able to fully conceal the hostility which appeared to lurk just below the surface." While Potter "at first does not give the impression" of having behavioral problems, "one must constantly keep in mind that she is an extremely effective manipulator" who "never presents enough evidence to actually get in trouble, typical of a sociopathic orientation toward life."
After choking a younger sister and shooting (but only slightly wounding) a younger stepbrother that June of 1971, Potter at age 15 ended up a ward of the court, which placed her in a special facility for troubled adolescents. By 16 she was attending a public high school; by 17 she'd borne a daughter; by 19 she was a cocaine addict; by 24 she'd lost custody of her daughter; by 30 she was a forger and auto thief. At the time of her arrest for Dulin's murder, she was under a restraining order that barred her from being within three miles of her daughter.
"I'll never change my story," Potter announced to Zellner that first morning. But Zellner could tell--Potter was enjoying the attention.
In her second visit, rather than grill her, Zellner tried to listen without judgment. Potter obviously felt grief over her estrangement from her daughter, so Zellner talked about Burrows' children. That drew a response. Zellner could tell Potter now was welcoming her visits.
Potter began retreating from her testimony on the third visit. When Zellner started saying it was clear Joe Burrows and Ralph Frye hadn't been at Dulin's house, Potter nodded. Will you put that in writing? Zellner asked. Yes, Potter answered, she would.
Potter wasn't yet revealing what did happen. This was only a first step, Zellner knew. Judges disdained recantations generally, and they'd particularly abhor one from Gayle Potter.
Gradually, Zellner began assembling what she truly needed.
In December of 1993, Zellner's associate, who was combing through boxes of files handed over by the state's attorney's office, came across a curious letter Potter had written soon after her arrest, addressed to a friend named Tom Williamson, who lived two miles from Bill Dulin's home. In it, Potter pleaded for Williamson to "come forward" and say he'd seen a "light blue Chevy" pickup truck parked outside Dulin's home, because otherwise "the police are going to try to say I was the one who killed Mr. Dulin.... Tom, PLEASE, I'm begging you." This was critical evidence, for it suggested Potter's early intent to deceive. But Tony Brasel had never shared it with the defense. This looked to Zellner to be a clear violation of the discovery rules--and reason alone for a new trial.
The next month brought even more reason. In early January, a former girlfriend of Chuck Gullion, feeling troubled, had called the Champaign County police to say that Gullion, repeatedly over the years, had told her Burrows was innocent. This call, in turn, had led Iroquois County investigators to re-interview Gayle Potter's old boyfriend Steve Gillespie. In a taped interview on Jan. 14, Gillespie had added a significant detail to his earlier statements. When a bloodied Gayle returned to her cousin's apartment on the night of Dulin's murder, he now revealed, she'd said "she had some trouble with Bill.... She said that he hit her and she killed him." He hadn't told this to the investigators before "because I didn't want to get involved."
Gullion and Gillespie, kept from the witness stand because Brasel had denied them immunity, finally were speaking out.
Zellner now turned to Potter with heightened zeal.
Their meetings stretched on for months, more than 20 in all between April of 1993 and 1994. Most lasted more than an hour. Potter talked often about Brasel's "double cross," and often about her troubled childhood. In turn, Zellner described Joe Burrows' suffering, how he sat confined in a nine-by-six cell 22 hours a day, how he couldn't touch his family when they visited, how his children were tormented in school.
The connection grew, week by week. Potter began to sense empathy, even sympathy, in Zellner. This was no ruse; Zellner believed she understood Potter, understood her pain.
It was happening again, Zellner realized. She was bonding with a sociopath, just as she'd done with the serial killer Larry Eyler. Sociopaths, and their mask of sanity, mesmerized Zellner. They appeared normal, but had no conscience, no moral core, no regard for the consequences of their actions. They were aberrations of nature, like the unusual rocks Zellner's geologist father used to show her. Studying Potter recalled for Zellner the thrill she felt as a kid when she looked at snakes at the zoo. She could see the snakes, but they were separated from her; they couldn't get her, couldn't bite her. What excited Zellner most was the challenge of beating these sociopaths. She wanted to get them.
Time pressed on her now, though. At the Menard Correctional Center, Joe Burrows was unraveling. His had been a troubled life well before the arrest for Dulin's murder. Over the years, he'd rarely managed to stay out of one jail or another for very long. The gap between one release and the next arrest often was a matter of months, leaving scant time with his three children, who all were under 3 when he went to prison in March, 1985, on a burglary charge. Released in January, 1988, he and his family had struggled--there was a sojourn in a homeless facility in Urbana, times Burrows slapped his wife around, the day police picked up Burrows after a screaming fight with Sherri and her brother. For a while that summer the family separated, Sherri and the kids going to live with her mom. By the fall they'd reunited, but then came the arrest for Dulin's murder. After the Illinois Supreme Court upheld Burrows' murder conviction, Sherri had stopped visiting him for four months, until she realized she just couldn't walk away.
Now, in early 1994, Burrows started giving up. He'd always thought this all was going to be seen as a mistake, but when he was found guilty and sentenced to die, he'd shut his brain down. In the journal he'd started keeping, Burrows last January wrote: "I have been dead for so long now I doubt if I know how to live any longer.... Today I made the decision to put an end to all the pain and suffering the only way I can. I will write the court and waive all my rights and petition the court to proceed with my execution as soon as possible. I just pray to God that I have the strength to see it through."
We have to bring this to a close, Zellner realized when she learned of Burrows' despair. We need a resolution.
Visiting Potter one morning soon after, Zellner laid out the whole intricate story as she saw it. There was something fishy in the Iroquois jail, she told Potter. Burrows and Frye were not there at the murder scene. There was no blue pickup, no money clip, no wallets, no pants. The cops fed Frye, Brasel coached Potter, Potter and Brasel coerced Frye.
Listening, Potter admired Zellner. The lawyer had it right almost to every detail. All except who actually killed Dulin.
That question Zellner went after days later. On the morning of April 1, she drove to Dwight intending to get a confession.
"I think a woman committed the murder," Zellner began, sitting before Potter in the conference room they'd shared regularly now for more than a year. Zellner spoke slowly, carefully. "This was a small, frail, 88-year-old-man, 5'5" at most," she said. "A big man like Joe Burrows wouldn't have had to struggle with him. There wouldn't have been any broken fingernails or ricocheting bullets. It wouldn't have happened." Zellner eyed Potter, who is five feet tall. "The killer was about the same height and strength as Dulin," Zellner said. "The killer was a woman."
It was so obvious, Potter marveled.
"Well," Potter told Zellner, "a woman did do it."
"Listen, Gayle, I'm not passing judgment."
"Don't ever kid yourself that it matters at all what you think of me."
It did matter, though.
Potter trusted Zellner. This lawyer had always been honest with her, had never tried to twist her around. She'd always made it clear she was representing Burrows and not helping her. Potter thought Zellner good at her job. In the Iroquois County Jail, she'd always had a support system to help keep this story going. Here, Zellner just was not going for it.
"You're right," Potter said. "A woman did do it. I was there alone. I shot Bill Dulin."
She wouldn't yet say she purposefully squeezed the trigger; "the gun went off" is how she put it. There was, all the same, a buried hint of pride in her tone. The enormity of it all, the daring of it all, fed Potter's self-image. They didn't want to think a woman could do this, Potter would later proclaim. But she ran with the big boys, so she was expected to act like the big boys.
Three days later, Potter called Zellner. She wanted another meeting; she wanted to put her story on the record. On Wednesday, April 6, accompanied by a court reporter, Zellner arrived to tape Gayle Potter's confession.
Listening as she talked, Zellner considered this woman's motives. Yes, Potter hated Tony Brasel and wanted to get him. Yes, Potter knew that the rules against double jeopardy, and the statute of limitation against perjury, probably protected her from new prosecution. But Potter also knew she was kissing off any chance she might have had for a governor's clemency or release through a federal habeas petition. In truth, since her conviction was based on her own perjury, the state might still be able to retry Potter. Clearly, Potter's confession now was against her own interests. Clearly, there was room for Zellner to run with this confession.
All she had to do was convince Judge Michela that he, and his esteemed legal system, had made a horrible mistake.
By the time the hearing on Burrows' request for a new trial began July 26--in the Kankakee courtroom where he'd been tried, convicted and condemned--there had been, if not a retreat, a certain adjustment made by some of those who'd put him on Death Row.
"It wasn't my job to believe that Joe Burrows committed this crime," Brasel had told the Champaign-Urbana News-Gazette. "But based upon the evidence, it was always my understanding that he did."
Robert George "could have" stopped the tape during Frye's interrogation, Sheriff Mathy had been quoted as saying. "In fact, my investigator is not going to get up and say it didn't happen.... I wish I'd been there that night."
Faced with such comments, Kathleen Zellner's petition and mounting news media attention, Judge Michela had concluded there was a lot about this case he didn't know. He was determined to remedy that situation. From the start, he overruled most of the lawyers' objections to testimony, and intervened to ask his own questions of witnesses. Plainly, he wanted to hear everything. Truth-seeking, not legal process, was now paramount in Michela's court.
One by one, various figures from the 5-year-old murder case appeared and settled into the witness stand. First came Gayle Potter, confessing, describing her exchanges with Tony Brasel, explaining that she let Burrows go to Death Row "because I was afraid I was going to be walking in his shoes." Next came Ralph Frye, recanting, describing how Investigator George "shook his head" and "shut the tape recorder off" and "said there was five shots." Then Jana West swore she'd been with Burrows the night of Dulin's murder, Ron Boyer described Ralph Frye's first jailhouse recantation, Mathy defended his men's actions, George insisted he hadn't fed Frye, and Brasel denied everything. Finally, Joe Burrows testified--for the first time ever.
None of these witnesses mattered as much to Judge Michela, however, as did Iroquois County Detective Sgt. Randy Eimen.
Eimen took the stand late on the first of the hearing's four days. Yes, he said in response to a question, it was Gayle Potter who'd first mentioned the blue pickup truck, on the day they arrested her. And yes--he had mentioned that blue pickup truck to Ralph Frye when they questioned him early the next morning. Frye first had denied any involvement, Eimen testified, then had started saying he'd driven up to Watseka with Joe and Sherri Burrows in their car. Eimen had stopped him; Eimen had said, "Ralph, Gayle said you came in a truck." Soon after, Eimen had left the room, and George alone had taken Frye's tape-recorded statement.
This testimony inspired Judge Michela to ask Eimen some questions.
Michela: When you talked to Ralph Frye a