- Verdict: dishonor -
- OFR -
While thousands of defendants pour through
dozens of courtrooms across Cook County,
which has one of the largest court systems
in the nation, the hub remains the
seven-story courthouse known as "26th and
Cal."
Here, justice often is imperfect. And
frequently, the Tribune examination shows,
it is unfair. Prosecutors and defense
attorneys square off over charges of drug
dealing and robbery, sexual assault and
murder; to cajole and shout, to argue and
debate, to wheel and deal, and, ultimately,
to win.
The journey of a criminal case from arrest
to conviction travels an often lengthy and
tortuous legal path. The reversals in Cook
County show how misconduct can occur at
virtually every step of the way.
The key figure during the entire proceeding
is the prosecutor, the ultimate gatekeeper of
the state's evidence and witnesses. The
prosecutors control the paperwork -- the
test reports of bullets, weapons, clothing,
blood, hair; statements taken from
defendants and witnesses; and police
reports. They determine which of these
items are turned over to defense lawyers,
and when.
How does improper prosecutorial behavior
make a trial so fundamentally unfair that a
conviction is set aside?
The basic right to a fair trial, even for those
accused of the most abhorrent crimes, was
established in the U.S. Constitution with few
specific rules beyond the 5th Amendment
right against self-incrimination. Over the
past two centuries, a vast array of rules of
engagement have evolved through
decisions, usually by the U.S. Supreme
Court. These rulings control how juries are
selected, what questions may be asked of a
witness, what evidence may be presented
and what lawyers can and cannot say during
the arguments to the judge or jury.
Misconduct can occur before a trial and
even before charges are filed.
In 1984, David Lee's rape conviction was
thrown out because his confession came
only after Assistant Cook County State's
Atty. Mark Schroeder told Lee that his
fingerprints had been found in the victim's
apartment -- even though none of his prints
were there. Although police officers are
allowed to mislead suspects during
questioning, prosecutors, the court ruled,
cannot.
Once charges are brought, defense lawyers
are entitled to receive before trial all
information that could be viewed as
favorable to a defendant, as well as names
and addresses of prosecution witnesses and
their written or recorded statements.
Although it is a fundamental rule designed to
prevent trial by ambush, 25 convictions
have been reversed in Cook County in the
past two decades because prosecutors
failed to turn over such evidence.
Prosecutors also are responsible at trial for
the acts of police and other law
enforcement officials who investigate
crimes.
That was the case in 1995 when defense
lawyers for accused murderer Donald
Kalwa discovered that for nearly two years,
Chicago Police Detective Richard Schak
knew that a fingerprint lifted from the car
window of murder victim Rachel Rachlin --
whose body was found in the trunk -- did
not match those of Kalwa, but he never told
anyone about it. Defense lawyers said such
a print could point to another suspect.
The concealment of evidence that suggested
someone other than Kalwa may have been
the killer prompted Circuit Court Judge
Fred Suria to set aside Kalwa's conviction
and order a new trial. Prosecutors Robert
Berlin and Richard Kayne said they were
unaware of the evidence. Kalwa was retried
and convicted.
Some of the most insidious examples of
misconduct in the Cook County courts have
occurred at the outset of trials when
prosecutors reject jurors because of their
skin color. At least 22 different convictions
have been vacated in the past 12 years
because prosecutors allegedly discriminated
against minorities in jury selection,
according to the Tribune analysis.
In 1986, the U.S. Supreme Court, in a case
entitled Batson v. Kentucky, provided a
new test to determine whether prosecutors
were keeping African-Americans off juries.
Before the Batson ruling, when the
threshold for proving discrimination was so
high that prosecutors excused
African-Americans without the least worry
of being reversed, juries in Cook County
frequently were all white.
Some former prosecutors admit privately
that African-Americans were routinely
excused in the past because prosecutors
believed that they were more likely to
accept assertions that police mistreated a
defendant during questioning. And some
Cook County prosecutors still attempt to
keep African-Americans from juries, in
some instances with judicial help.
In 1993, for example, the appellate court
found that Cook County Circuit Judge
Ronald Himel had "coached" prosecutors
Georgia Buglass and Edward Schreiber as
they scrambled to find race-neutral reasons
for dismissing African-Americans from a
jury. In reversing the armed robbery
conviction of Robert Banks, the appeals
court noted that Himel called the Batson
decision "poorly written, poorly
understandable . . . certainly wrong . . .
ludicrous and ridiculous."
As recently as September 1996, the
appellate court ripped the Cook County
state's attorney's office for perpetrating "the
charade" that the jury selection process has
become.
"Surely, new prosecutors are given a
manual," Justice Alan Greiman noted
sarcastically, "probably entitled, `Handy
Race-Neutral Explanations' or `20
Time-Tested Race-neutral Explanations.' "
Such a book, he suggested, might include
the following reasons, all of them gleaned
from actual cases: too old, too young,
divorced, unkempt hair, freelance writer,
wrong religion, social worker, renter, lack
of family contact, single, lack of maturity,
improper demeanor, improper attire, lives
alone, lives in apartment complex,
misspelled place of employment,
unemployed, employment as part-time
barber, unemployed spouse, spouse
employed as school teacher, failure to
remove hat, living with girlfriend, deceased
father.
- OFR -
By Ken Armstrong
Tribune Legal Affairs Writer
January 9, 1999
Robert Macy is
America's prosecutor.
An Oklahoma lawman
known for roping calves,
talking tough and
wearing a string tie,
Macy has won
consistent praise for
protecting his county and his country.
As Oklahoma County's district attorney, he
has personally put 53 defendants on Death
Row, quite possibly a record. While
president of the National District Attorneys
Association, he helped shape federal law,
urging Congress to restrict inmate appeals.
"A true patriot," is what former U.S. Atty.
Gen. William Barr called him.
To avenge one of this century's most
infamous crimes, Macy has vowed to try
Oklahoma City bombers Timothy McVeigh
and Terry Nichols 160 times -- once for
each victim not covered by the federal
prosecution -- if that's what it takes to get
the death penalty against both.
But while Macy's plaques and press
clippings speak of a hero, the often obscure
records of state and federal appellate courts
offer a different description. Here's what
they have found:
Macy has cheated. He has lied. He has
bullied. Even when a man's life is at stake,
Macy has spurned the rules of a fair trial,
concealing evidence, misrepresenting
evidence, or launching into abusive,
improper arguments that had nothing to do
with the evidence, according to appellate
rulings condemning his tactics.
In the court of law, Macy meets with
constant and sometimes severe criticism.
But in the court of public opinion he
consistently wins re-election -- usually with
more than 70 percent of the vote.
In the first capital case he ever prosecuted,
Macy blamed a triple murder on Clifford
Henry Bowen, a 50-year-old professional
poker player with a history of burglary.
Macy contended that at about 2 a.m. on
July 6, 1980, Bowen, a potbellied man with
salt-and-pepper hair, drew a .45-caliber
automatic loaded with silver-tipped,
hollow-point bullets and shot and killed
three men sharing a poolside table at an
Oklahoma City motel.
But 12 alibi witnesses testified that Bowen
was at a rodeo 300 miles away in Tyler,
Texas, until about midnight on July 5. The
family that owned the rodeo said he was
there. So did the cowboy who rode Hook
'em Henry, a bull named for Bowen.
The prosecution's case relied upon two
eyewitnesses who identified Bowen as a
red-capped stranger they saw loitering
around the pool area sometime between
12:15 a.m. and 1:30 a.m. One witness saw
him through a window more than 85 feet
away. The other had undergone hypnosis to
sharpen her memory -- though prosecutors
kept that to themselves.
Macy waited until his final argument -- after
the defense could speak no more -- to offer
jurors a theory: Maybe Bowen took a
private jet from the rodeo grounds to the
Downtown Airpark in Oklahoma City. But
Macy had offered no such evidence. And
expert testimony later indicated the airstrip
in Texas was abandoned and that neither
airport could accommodate the kind of jet
needed for such a rapid flight.
Bowen was convicted and sentenced to
death. Two years passed, then a South
Carolina police detective told Bowen's
lawyer something startling: Powerful
evidence suggested the killer was not
Bowen, but a small-town South Carolina
police lieutenant.
A federal appeals court later described that
evidence:
The lieutenant, a potbellied man with
salt-and-pepper hair, matched the killer's
physical description. He habitually carried a
.45 with unusual silver-tipped, hollow-point
bullets. The lieutenant's fiance had been
married to Ray Peters, one of the three men
who were killed. Peters had slapped his
ex-wife and made recent threats against her.
For a year, the lieutenant had been under
investigation by South Carolina police as a
suspected hit man. He had been in
Oklahoma when the three men were shot
and had returned to South Carolina later
that day. And the lieutenant had once
before dated a woman who was being
pestered by an old flame. Her ex-boyfriend
got shot five times in the head.
Oklahoma authorities had collected all that
evidence and more before Bowen was ever
tried. But the prosecutors had not disclosed
it to Bowen's lawyers. Five years after
Bowen was placed on Death Row, a
federal appeals court threw out his
conviction, saying prosecutors violated the
U.S. Constitution by concealing evidence so
powerful it cast "grave doubt" on Bowen's
guilt. Bowen was not retried.
"There is no conceivable way that I could
even try to conjure up a basis for holding
that evidence from a defense lawyer," says
Tulsa attorney Patrick Williams, who helped
represent Bowen on appeal. "It's
inexcusable."
Five months after Bowen's conviction was
reversed, Macy won re-election with 80
percent of the vote. The next year, in 1987,
he was named the state's outstanding district
attorney, honored for his "exemplary
professionalism in the exercise of
prosecutorial duties." And a few years after
that, Macy's fellow prosecutors elected him
president of the National District Attorneys
Association.
Bowen died in 1996, 10 years after being
freed. He is one of at least 381 people
nationally who have had a homicide
conviction reversed because prosecutors
failed to disclose evidence suggesting
innocence or presented evidence they knew
to be false, according to a Tribune analysis
spanning four decades.
In a recent interview, Macy said he believed
the Oklahoma City police investigation had
eliminated the South Carolina officer as a
suspect and would have turned over the
evidence against him had Bowen's attorney
formally requested it. The federal appeals
court said the evidence was so compelling
that Macy should have disclosed it
regardless.
Macy, 68, is nicknamed "Cowboy Bob."
Western memorabilia adorns his office, and
on the wall are the handcuffs he used when
he was a police officer some 40 years ago.
Macy, who's been district attorney since
1980, bristles at court opinions that
conclude he hid evidence or engaged in any
kind of deception.
"I may not be very smart," Macy said, "but
I'm honest."
At least four men convicted of murder have
received new trials or sentencing hearings
based upon an appellate finding that Macy
broke the rules of a fair trial -- although
Bowen's was the only case reversed
because of withheld evidence, and the only
one to end in acquittal. In addition, at least
17 other defendants had trials where
reviewing courts said Macy or his trial
partners did something improper such as
making prohibited comments during
argument. But in those cases, the courts
either upheld the conviction anyway or
ordered a new trial on some other basis.
"It's my obligation as district attorney to
present the evidence in the light most
favorable to the state," Macy said. "The
people are entitled to have a D.A. who
argues their position very vigorously."
Macy said that in some cases, the
Oklahoma attorney general's office, which
represents the state in criminal appeals, has
failed to show the reviewing courts that he
was simply responding to unfair attacks
from the defense attorney. In other cases,
Macy attributes criticism to philosophical
differences with a former judge on the
Oklahoma Court of Criminal Appeals.
But the Oklahoma court continued to fault
Macy even after that judge died five years
ago. And federal courts have upbraided
Macy as well.
Last year tells the story:
In March, a federal judge ordered a new
sentencing hearing for Death Row inmate
Kenneth Paxton, saying Macy engaged in
"blatant misrepresentation" while convincing
the jury to sentence Paxton to death.
In June, the Oklahoma appeals court upheld
the conviction of Death Row inmate
Osbaldo Torres but upbraided Macy for a
host of "improper tactics" he employed
while arguing to the jury. The court noted
that it had condemned Macy for the same
tactics before.
In November, Macy was re-elected to his
fifth full term. He ran unopposed.
- OFR -
fair trial
Some Cook County prosecutors
break the rules to win
By Maurice Possley
and Ken Armstrong
Tribune Staff Writers
January 11, 1999
On his first day as a
prosecutor assigned to a
trial courtroom at the
Criminal Courts
Building, Michael
Goggin slid into the chair
next to the judge's
chambers and his shoes
struck a most unusual
object -- a bathroom scale.
"What's this?" Goggin recalls asking another
prosecutor.
"That's for the Two-Ton Contest," came the
response.
"The Two-Ton Contest?" Goggin replied,
quizzically.
More than two decades later, as Goggin,
now a defense lawyer, recalls the moment,
his original amazement is still apparent.
There was an ongoing competition among
prosecutors to be the first to convict
defendants whose weight totaled 4,000
pounds. Men and women, upon conviction,
were marched into the room and weighed.
Because most of the defendants were
African-American, Goggin recalls now, with
no small degree of discomfort, the
competition was described in less sensitive
terms behind closed doors -- "Niggers by
the Pound."
Those were different days in the state's
attorney's office at the Cook County
Criminal Courts Building at 26th Street and
California Avenue, when prosecutors were
mostly white men who ate, slept and
breathed their cases, working and partying
side by side. "It was us against the worst of
the worst," Goggin recalls.
It was an era where being politically correct
meant being a part of Mayor Richard J.
Daley's Democratic machine. It was a time
when the state's attorney's office kept a
chart of wins and losses, each victory
earning a prosecutor a green sticker next to
his name, and each loss an embarrassing
red one.
It was a place where winning was so
important and commonplace -- Goggin's
record in one courtroom was 58 wins, two
losses and two hung juries -- that the
Two-Ton Contest evolved as another
measure of success, with
African-Americans as game tokens.
And it was a time when some prosecutors
hid evidence, overreached in courtroom
argument, reneged on promises, sat idly by
while their witnesses shaved the truth and, in
some instances, were the unwitting pawns
of unscrupulous law enforcement officers
who concealed evidence or lied, according
to a Tribune analysis of hundreds of cases.
Goggin himself was involved in six reversals
-- four murder convictions set aside and
two death sentences vacated -- because of
misconduct in the courtroom. No other
prosecutor in Cook County has more
reversals in the past 20 years, according to
the Tribune study.
Gregg Owen, Goggin's partner in four of the
reversed cases and now a private defense
lawyer in Schaumburg, says they did what
other prosecutors did. And they earned
plenty of green stickers for it.
"Nobody told us to cheat. Nobody told us
to do wrong," he says. "It was to be smart,
be tenacious. We were told we were the
best prosecutors in the office."
"I didn't do anything wrong," Goggin adds.
More than 16 years after Goggin left the
ranks of prosecutors to go into private
practice in west suburban Oak Park, the
Two-Ton Contest is long gone. Prosecutors
no longer openly refer to the suburban
courthouses in Markham and Rolling
Meadows as "Darkham" and "Rolling
Ghettos." And the team of three dozen
prosecutors at 26th Street has grown to
more than 200, with their ranks now
including many minorities and women.
But cheating, misconduct, and in a more
subtle form, the racism of the 1970s still
persist.
As a result, about once a month, on
average, for the past two decades, a
conviction has been set aside in Cook
County because of a judicial finding of
improper conduct by prosecutors.
For the guilty, each new trial represents yet
another opportunity to go free by
convincing a judge or jury that the evidence
is insufficient to convict.
In addition, the reversals exact a toll on
victims and their families who are forced to
come back to court, reopening sometimes
barely healed emotional wounds. There is a
cost in time and effort for investigators,
defense lawyers, judges and jurors in an
already overburdened court system.
A Tribune examination of all types of
criminal cases since Dec. 31, 1977, found
326 state court convictions in Illinois -- 207
of them in Cook County -- have been
reversed because of prosecutor
misconduct.
Nearly half of the reversals in Cook County
were for homicide convictions.
In addition, eight defendants in Cook
County were sentenced to death and won
new sentencing hearings due to prosecutor
misbehavior. When new hearings were held,
only two resulted in reimposition of a death
sentence.
A Tribune study of homicide cases across
the country revealed 381 reversals since
1963 for two of the most serious types of
misconduct -- using false evidence or
concealing evidence suggesting innocence.
The review of more than 5,000 Illinois and
Cook County cases covers all types of
crimes during the past two decades and
focused on all forms of misconduct that
result in a reversal.
Most of the reversed convictions -- 93
percent -- involved jury trials, which
prosecutors tend to win. A Tribune
examination of court records shows that in
the 10-year period ending in 1995, Cook
County prosecutors won about 82 percent
of the murder cases tried before juries.
And while the number of reversed cases is a
small percentage of the tens of thousands of
criminal charges that were filed during that
period, an examination of thousands of
pages of transcripts and evidence in the
Cook County cases reveals trial after trial
where prosecutors cheated, lied or spun out
of control during arguments before a jury.
Not a single prosecutor has been dismissed
for misconduct since 1990, according to
Cook County State's Atty. Richard Devine
and his predecessor, Jack O'Malley. Mayor
Richard Daley, who was state's attorney
from 1980 to 1989, declined to comment,
but top officials who worked for him also
could not recall any firings. Michael Shabat,
formerly first assistant for the late Cecil
Partee, who served from 1989 to 1990,
said he cannot recall dismissals.
David Erickson, first assistant Cook County
state's attorney, says that prosecutorial
misconduct is rare, occurring over the past
three years in only an infinitesimal fraction of
criminal cases.
"But even one case is too much," he adds.
"As small as that is, it's too many."
The line between misconduct and
hard-nosed lawyering is thin and a matter of
integrity and self-control. Misconduct
ranges from an overexuberant argument to
maliciously hiding evidence of a defendant's
innocence. And it is frequently the subject
of fierce debate in appellate courts, with
prosecutors defending their actions while
being condemned by defense lawyers.
Goggin, who rose to become a supervisor
in the state's attorney's office, portrays
himself as a well-intentioned prosecutor
who lost control in the heat of battle, driven
to win by a complex blend of factors,
including appeasing the family of a victim,
earning accolades of fellow prosecutors and
"getting the bad guy."
Some misconduct, such as hiding evidence,
is not easily discovered. And other kinds,
such as improper argument and bullying
tactics, happen in court, where judges have
the power to declare a mistrial.
Misconduct occurs in the courtrooms of
permissive judges who favor the
prosecution -- possibly because of
friendship or a get-tough attitude toward
criminals. It occurs in the courtrooms of
stricter judges who, reluctant to declare a
mistrial and start the case all over again,
attempt to correct the imbalance with a
rebuke.
"There are a lot of good prosecutors out
there who want to win and can take a loss,"
says criminal defense attorney William
Murphy, a veteran of 31 years in the Cook
County courts. "And there are prosecutors
who so don't want to lose they would rather
win dirty."
An examination of the cases shows that no
charge was too serious and no case was
too small -- convictions have been voided
for a wide variety of offenses, ranging from
murder, sexual assault and armed robbery
to resisting arrest, public indecency and
even the sale of stolen pigs.
- OFR -
Franks rejected a 62-year-old
African-American man as a juror in the
murder trial of Peter Sims in 1984, saying
that at his age, he should have a better job
than a stock clerk at a shoe store. That
explanation, the Illinois Appellate Court
declared, was a sham to cover their
improper attempt to reject him because of
his race. The court labeled the excuse
"ludicrous." Sims, who had been sentenced
to 66 years in prison, was granted a new
trial. He pleaded guilty and received a
reduced sentence of 33 years.
- Prosecutor Nick Ford told a jury that he
would be fired if his witnesses lied -- a
blatant attempt to use the good name of his
office to vouch for the witnesses. The act,
combined with judicial errors, resulted in a
reversal of the 1995 murder conviction of
Christopher Henyerd, accused of the
robbery and murder of West Side grocer
Nick Martini. Two months after the
reversal, Ford was named a Cook County
judge. The retrial is pending.
- Ralph Harbold, once a prominent
chiropractor, is now awaiting his third trial
on a charge of murdering a wealthy
businessman in 1981. His first two trials
were reversed -- in 1984 and 1991 --
because prosecutors introduced prejudicial
evidence and made improper closing
arguments. A third trial is scheduled to
begin later this year.
The 326 reversed convictions uncovered by
the Tribune represent only a part of the
problem. Some cases are dismissed prior to
trial for a variety of reasons, including
misconduct in the grand jury.
Reversals also occur in rulings by trial
judges and in unpublished appellate court
opinions, neither of which are recorded in
official legal databases. In the past 13
months, there have been eight reversals in
unpublished opinions in Cook County.
Defense lawyers also say that when they
raise a serious allegation of prosecutorial
misconduct, the issue is frequently resolved
without an official finding of wrongdoing or
public exposure by cutting deals for
reduced sentences or immediate release.
Last year, a defense lawyer accused Cook
County prosecutors Kent Sinson and Peter
Goutos of hiding evidence that one of their
witnesses had been promised a light
sentence on a drug charge in return for his
testimony against accused murderer
Bernard Benjamin. The prosecutors stood
silent when the witness denied in court that
he'd been promised a deal, and Benjamin
was convicted. When the defense later
learned the witness received only probation,
the prosecution agreed to a new trial,
characterizing it as "newly discovered
evidence."
Some of the cases examined by the Tribune
were never retried, but instead were plea
bargained for reduced sentences because
evidence had deteriorated or disappeared,
memories had faded, and witnesses had
died or moved away.
In one case, a clerical error resulted in a
murder case being dropped entirely. After
the murder conviction of Henry Lee
Thomas -- accused of stabbing Dorothy
Terrell to death and dumping her body in a
forest preserve -- was reversed because
prosecutors improperly told jurors that he
had flunked a lie detector test, it was sent
back for a new trial. But due to an error in
the Cook County clerk's office, prosecutors
did not discover the reversal until it was too
late to bring Thomas to trial within the time
required by law. The delay forced them to
dismiss the case.
And in some instances, the appeals process
took so long that defendants had already
served their time and been released,
rendering the reversal practically
meaningless.
Still other cases ended in acquittal.
- OFR -
Most cases of misconduct occur during the
trial, which begins with opening statements,
moves into presentation of the prosecution
and defense evidence and concludes with
final arguments.
It is in the heat of battle, during argument
before a jury or cross-examination, that the
trial misconduct frequently occurs and is
either not corrected by the judge overseeing
the trial or is so egregious that a judge's
rebuke is later deemed inadequate to
correct the prejudice to a defendant.
"That adrenalin rush can push you over the
line," says Michael Ficaro, a former
supervisor in the state's attorney's office in
the 1970s and now a lawyer in private
practice. Ficaro prosecuted two of the
reversed cases examined by the Tribune.
It happens, according to Goggin, when "you
see a defense attorney attempting to whittle
away at your evidence. A fear starts to
enter into a prosecutor's mind that you
might lose this case. You try to remember
what is allowable and what's not allowed.
Sometimes the things you say were already
ruled proper or harmless and they now,
under certain circumstances, different
judges, different fact settings, are held to be
error and they reverse the case."
Once again, the rules of engagement bend
to the will and strategies of the lawyers and
judges in the courtroom.
A Tribune examination of the Cook County
cases shows reversals occurring before
more than 80 different judges, with most
judges having only one or two such cases.
However, two former judges -- James
Bailey (17 convictions reversed) and
Thomas Maloney (10 convictions and two
death sentences reversed) -- stand out.
Maloney, now serving a 15-year prison
term for taking bribes to fix murder cases,
was known as a hard-nosed jurist who was
openly contemptuous of defense lawyers
and imposed severe sentences on
defendants.
Bailey was considered a fair-minded judge,
but also one whom prosecutors remember
as allowing them wide latitude. "He would
let us say just about anything we wanted to
say," recalls one former prosecutor.
Bailey acknowledged that many of the
reversals were the result of improper
argument, including two cases prosecuted
by Owen and Goggin and another handled
by Michael Ficaro. "They were very good,
but overly aggressive, prosecutors, very
flamboyant," Bailey said. "You can't do a
damn thing about it unless the other side
objects."
Most of the reversals involved death penalty
cases, he noted. "In those cases, people get
inflamed. They're usually very brutal
murders. And on death penalty cases, you
had to have a perfect record or get
reversed."
Similarly, some prosecutors take advantage
of lax or incompetent defense attorneys
who fail to object when assistant state's
attorneys step over the line. The Tribune
examination of the 326 reversed convictions
in Illinois shows that the assertion of
prosecutorial misconduct was accompanied
in dozens of cases with a claim of
incompetence of defense counsel.
Textbook example
When professors and legal scholars attempt
to illustrate how not to try a case, they often
cite the murder trial of Mitchell Weinger.
The Illinois Appellate Court overturned the
conviction in 1981. The prosecutors
involved: Goggin and Owen.
"That's the one they use at the seminars,"
Owen says unabashedly.
The opinion as first issued was a scathing
indictment of Owen and Goggin, citing more
than 50 instances of misconduct and
mentioning both prosecutors by name -- an
unusual practice for an appeals court. Owen
said that the original opinion was withdrawn
shortly after it was issued and rewritten to
lower the misconduct count to 35 and to
remove their names.
The trial's fatal flaws included the
prosecution's opening statement, in which
jurors were told that a witness would say
the killer was wearing a turquoise necklace.
The witness identified Weinger as the killer,
but never said he was wearing such a
necklace. The error was compounded when
Goggin and Owen elicited testimony from a
police officer that such a necklace had been
found in Weinger's apartment, creating an
impression that the witness' identification of
Weinger had been corroborated by the
police officer who found the necklace.
In addition, the appeals court cited 20
instances where Goggin and Owen
persisted in asking witnesses to answer
questions, despite the repeated rulings by
the trial judge, Frank Machala, that the
questions were improper. The tactic of
continuing to pose such questions was, the
appeals court said, designed to force
defense lawyers to repeatedly object in
hopes that the jury would view them as
obstructionists.
After the conviction was reversed, Weinger
pleaded guilty rather than go to trial again.
He served less than seven years in prison.
"Everything I did in Weinger had been
upheld in the past in other cases," Owen
says. "I tried 64 jury trials and I was 62
(wins) and 2 (losses). Goggin and I never
lost together as a team; we won almost 40
cases in a row."
Rampant emotion
Sometimes overreaching by prosecutors
can taint even the most straightforward
cases.
There was never any doubt that Richard
Stack killed his wife and their 13-month-old
son on a sunny Mother's Day afternoon in
1980, but because prosecutors mishandled
the case, it continues to linger in the courts.
And once again, Goggin was at its center.
When police arrived at the Stack residence
at 6400 S. Kildare Ave. on that May 11,
Stack, shirtless and bloody, was leaning
from a shattered 2nd-floor window,
screaming, "God died for our sins!" and
babbling about "devils and demons."
Inside the modest home, Carol Ann Stack,
22, had been kicked repeatedly in the head
and was stabbed and slashed more than
100 times. Shards of a shattered pool cue
were embedded in her chest. The couple's
13-month-old son, Richard Jr., had been
stabbed repeatedly and then hurled into a
wall.
Almost immediately, Stack confessed,
telling police: "I just killed my wife and kid."
Ultimately, the case boiled down to a legal
struggle over whether Stack was sane
enough to be convicted and sent to prison
or whether he was so unbalanced as to be
found not guilty by reason of insanity and
sent to a mental institution, where he might
one day be deemed mentally fit enough to
be released.
Twice the case went to trial and twice
Stack was convicted. And both times the
convictions were set aside because
prosecutors broke the legal rules.
In Stack's first trial, Goggin and
co-prosecutor Ernie DiBenedetto fought
vigorously for a guilty verdict that would
send Stack to prison for life. By the time
Goggin stood up to give his closing
argument, the case already was critically
damaged by legal miscues, including the
presentation of testimony that Stack must
have been sane because he invoked his right
to remain silent. It is a violation of a
defendant's rights to suggest a defendant's
silence -- a constitutional right -- is evidence
of guilt.
But Goggin's final address to the jury was a
study in rampant emotion and, the appeals
court later said, a perilous misstatement of
the law.
Lacing his address with explosive words
and phrases -- "butcher," "stomped their
heads," "cracked that baby's skull" --
Goggin pointed to the bloody photographs
of the victims. "This case is about Carol
Ann Stack and Richie Stack Jr. being
transformed from two living human beings
into two mutilated carcasses.
While such language indicated how
passionately Goggin wanted a criminal
conviction, none of it was outside the
bounds of fairness. It was what he said next
that crossed the line, the court said.
"We all have responsibilities," Goggin
declared. "And you will live with your
decision today and so will the rest of us in
our society. And so will the rest of the
people from that neighborhood -- if you let
him escape responsibility for his crime."
The jury heeded Goggin's words, convicting
Stack of murder. But two years later, in
1984, an appeals court ordered a new trial,
saying, in part, Goggin misstated the law by
suggesting that a verdict of not guilty by
reason of insanity would set Stack free to
return to the community.
Stack was convicted for a second time in
1987. Once more, the conviction was set
aside because DiBenedetto and his
co-prosecutor, Richard Stock, repeated
Goggin's mistake, telling jurors they had to
convict Stack to avoid the possibility he
would go free.
In reversing the case for a second time,
Appellate Court Justice Calvin Campbell
noted, "It is regrettable that the victim's
family will be forced to endure a third trial.
The people of the state of Illinois, including
the victim's family, are not well served by
prosecutorial misconduct."
When the third trial concluded in 1996,
Stack was convicted again. The case is now
on appeal and defense lawyers contend that
prosecutors Charles Burns and John
Murphy presented evidence of Stack's
post-arrest silence before the jury -- an
error that contributed to the reversal of the
first trial.
The state denies any misconduct occurred.
Burns is now a judge.
Missteps in closing arguments have become
the prosecutorial error cited most frequently
-- 108 times out of 207 reversals -- in
Cook County cases in the past 20 years.
The close of a trial is when the pressure
reaches its zenith, when even the most
experienced prosecutors -- perhaps
wearied by stress and fearful of an acquittal
-- are overcome by adrenalin, sarcasm and
fear of losing.
In the past 20 y years, prosecutors have
been criticized for referring to defense
lawyers as "slicksters" and "hired guns" and
for branding defendants as "scum" and a
"lying, raping, attempt-murdering dog." In
one case, a conviction was reversed
because the prosecutor asked the jury to
remember, as they deliberated, that if they
acquitted the defendant, he was "just an `L'
ride" from their front door.
Erickson, who was an assistant Cook
County state's attorney and then a judge
before resigning to work for Devine,
summed up how it happens.
"You've tried a tremendous case. You've
got a ton of evidence. You've got an
eyewitness. You've got a fingerprint. You've
got a confession," he said.
"And then you get up in closing argument
and you go nuts on the guy. You start
saying things over and over that you don't
have to say because you've proved it 12
times over. What you wind up with is an
overkill process where your case is
reversed and sent back."
Owen pursued victories with an almost
religious fervor that was born of a loss in his
second jury trial.
"It was an armed robbery and we lost," he
recalls. "A year later, one of the defendants
who had been acquitted in my case broke
into a man's house and killed him. I felt
responsible for the death of that man."
Owen prayed before closing arguments.
"I said, 'Lord, if this guy didn't do it, don't
give me the strength to do this.' I was like a
crusader and the Lord was on my side.
"All I cared about was making sure the
defendant would not hit the street," he says.
"There ain't no appeal if I lose."
Jeffrey E, Salzberg
person -- a person who has previously demonstrated that he has only one
song to sing -- I usually just mark them all as "read".
OFR, if you really want people to read your messages, lighten up a
little, please; as it is, you're not serving your cause.
GHalleck
Jeffrey E, Salzberg wrote in message ...
A well-timed, articulate, succinct and accurate message that will fly HIGH
over the head of OFR.
GHalleck
Steve Furbish
"Jeffrey E, Salzberg" wrote:
>
> When I log on to a newsgroup and see 25 new messages, all by the same
> person -- a person who has previously demonstrated that he has only one
> song to sing -- I usually just mark them all as "read".
>
> OFR, if you really want people to read your messages, lighten up a
> little, please; as it is, you're not serving your cause.
It's the phase of the moon or something... ;-)
Steve
Steve Manes
Salzberg) wrote:
>OFR, if you really want people to read your messages, lighten up a
>little, please; as it is, you're not serving your cause.
Two little words: kill file.