The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

The DuPage Seven Case From My Perspective
By Patrick A. Tuite, J.D.

Toward the end of December 1996, I was pulling into the parking lot at 26th and California when my car phone rang. It was my good friend Joe Laraia, who told me that his former partner, Judge Bob Kilander of DuPage County, had just been indicted in what was to become known as the "DuPage Seven" matter. As Joe was already representing Sgt. James Montesano, Bob had asked him to determine whether I would take on his defense. I told him yes, immediately. I knew Bob Kilander when he was an Assistant State’s Attorney, a partner of Joe’s and then a judge; his reputation was outstanding. Bob then came to my office with his lovely wife, Margot, and met with my partner, Ron Menaker and me. As I learned more about the case and the circumstances giving rise to the indictments, it became apparent to me that there was no credible evidence of criminal conduct against my client or any of the other DuPage Seven.

The indictment charged Kilander in two of its counts. The first was a conspiracy with all the Defendants to obstruct the defense of Rolando Cruz by (a) testifying falsely about the "dream statement"; (b) withholding notes of an interview with Dugan’s attorney, Mueller, in 1985; and (c) getting Lieutenant Robert Winkler to expand his testimony in Cruz II from what it had been in Cruz I. The Second Count charged Kilander and all the Defendants with conspiracy to commit official misconduct by committing the conduct charged in the former count in an official capacity.

The entire case brought against the DuPage Seven by Special Prosecutor William Kunkle rested on the testimony of a self-admitted pathological liar. Given such shoddy evidence, the question must be asked: why were these defendants ever indicted in the first place? In order to believe a conspiracy existed against Cruz, a convicted felon’s word must be accepted as truth and the word of at least seven career police officers and prosecutors discounted. A jury would ultimately agree with my assessment of the evidence and the falsity of Cruz’s testimony, but the question must be raised: how did another career prosecutor, William Kunkle, fail to see the truth?

Another question that must be raised about the Kunkle prosecution: how could criminal intent possibly be imputed to Bob Kilander and Pat King with respect to the notes that they took in 1985 at the Dugan interview? In 1985, Brian Dugan, a confessed child killer in LaSalle County, gave a hypothetical proffer through his attorney to Pat King and Bob Kilander admitting to the Nicarcio homicide. During that proffer King and Kilander took three pages of notes. When an investigation by the state police into Dugan’s involvement commenced, Kilander sent over 800 pages of their reports to Cruz’s attorneys. It was alleged that Kilander did not turn over the three pages of notes until six months before the trial, although he contended he did so many months earlier. Almost all the information in the notes was in the 800 pages of reports. It is uncontested that these notes were turned over in August of 1989, six months before Cruz’s second trial.

Moreover, Kunkle’s indictment wasn’t returned until 1997 and there is a three-year statute of limitations on this type of case. To get around the limitations period, Kunkle concocted a convoluted conspiracy theory. Thus he converted a weak argument that there had been a discovery violation into an even weaker conspiracy charge. If, in the course of a civil or criminal proceeding, one side fails to answer discovery requests and yet is able to supply the requested information six months before the trial it is simply a late disclosure — not a crime. Bob Kilander did not throw away the notes, burn the notes or lie about the existence of the notes.

In my opinion, the indictment, with respect to my client and the other defendants, was ill conceived, baseless, and a misplaced attack upon the soundness of the criminal justice system. As a former Cook County Assistant State’s Attorney for many years, Bill Kunkle should have known better and used the proper discretion in deciding whether and against whom to file charges.

Nonetheless, the Special Grand Jury, led by William Kunkle, returned an Indictment based principally on the assertion of Rolando Cruz, twice convicted and then acquitted of the Nicarico homicide, that he never made the "dream statement" to DuPage Sheriff’s Detectives in May of 1983. Admittedly, that statement was not reduced to writing, got lost, and didn’t resurface until weeks before the January 1985 trial. It was this same statement that was then used and attacked by Cruz’s defense teams in each of his subsequent trials.

The pretrial motions in the DuPage Seven case were voluminous. We attacked the Special Prosecutor for acting beyond the scope of his authority. We attacked the conspiracy counts because they each alleged three separate conspiracies, rather than just one as required by law. We attacked the indictment against Bob Kilander based on the running of the Statute of Limitations. None of these motions were successful, and we prepared for trial.

As law enforcement personnel turned defendants grappled with their new roles, the courtroom took on an unnatural feeling. Consider, for example, the jury selection. There was a role reversal between the Prosecution and Defense philosophy of voir dire. Defense attorneys usually do not want people who are law-and-order inclined and pro-police, but in this case, the defense sought such jurors. Prosecutors generally do not want people who dislike or mistrust the police, but in this case, Kunkle sought that type of juror, and resisted the selection of good, law-and-order citizens. There was an exciting back and forth, with a great number of challenges spent, until the jury was finally selected after about three weeks of labor.

Looking at the trial in retrospect, Kunkle greatly underestimated the importance of Rolando Cruz to his case. His position was that the "dream statement" was never made, believing that it would have been recorded or memorialized in some way and tendered to the defense long before the first trial if it had occurred. Kunkle thought those omissions plus Cruz’s testimony would convince a jury that Cruz never made the statement. But to convince a jury beyond a reasonable doubt, Kunkle needed Cruz to testify credibly and believably when he denied making the statement to Detectives Kurzawa and Vosburgh.

In my focused position as Bob Kilander’s defense attorney, whether the content of the statement was true or not was unimportant. It was really not important to most of the other defense attorneys either. Cruz could have made the statement, but been lying to the police; he could have heard scuttlebutt on the street about the victim’s sexual assault; he could have repeated a rumor that her face had left an impression in the mud when struck in the head; or he could have been involved in the home invasion of the Nicarico house. What was important to us was that the statement was made, regardless of its veracity.

Terry Ekl, however, wanted to establish that the "dream statement" was true. His client, Tom Knight, had been the prosecutor who had investigated the Nicarico homicide, brought the charges against Cruz and convicted him originally. He set out to prove, once again, that Cruz had, in fact, killed Jeannine Nicarico. The rest of the attorneys thought he was taking on an unnecessary burden, and that it was potentially dangerous. If he was unsuccessful in convincing the jury that Cruz was the killer, it might somehow affect our ability to obtain acquittals for our clients. On virtually every other issue, all of the defense attorneys were on the same page. We readily agreed on jury selection, sequence of presentation, and how we would conduct the examination of the various witnesses.

Cruz’s testimony was the turning point of the case. In my opinion, he was one of the worst witnesses that I have ever seen in a major trial. The case hinged on his credibility. On a scale of one to ten, I would say his testimony was a minus ten. Somebody apparently had prepared him to testify using the phrase, "I was a smart ass street punk," in answer to any question that went to his lack of credibility in the past. When he was asked if he had lied to the police in another statement about this case, his answer was yes, but "I was a smart ass street punk." When asked why he lied to the judge to get a search warrant issued he said, "I was a smart ass street punk." When asked if he had burglarized certain homes, or done other bad acts, he responded that he "was a smart ass street punk." He told the police he was a marine when in fact he wasn’t, but that was according to him the result of being "a smart ass street punk." He was impeached with his Grand Jury testimony from 1985 where he tearfully said he was concerned about the Nicarico girl and wanted to do everything he could to help find her killer, after now admitting he didn’t really care about her.

After a blistering cross-examination by Terry Gillespie, who represented Dennis Kurzawa, and another from Terry Ekl, Brian Telander, who represented Tom Vosburgh, subjected Cruz to cross-examination. Telander, a former Assistant State’s Attorney in Cook and DuPage Counties, and a former DuPage judge, deftly flung the scraps left him by Gillespie and Ekl, at Cruz, who had been unmercifully eviscerated. If this were a boxing match, it would have been stopped long before. Cruz was wobbly on the ropes when Telander came in for the kill.

Telander used a rhetorical question to set up his attack, asking, "have you stopped your lying ways?" Astonishingly, Cruz said he was currently seeing a psychiatrist to help him stop lying! The courtroom went up for grabs. The audience laughed. The jury laughed. There were gasps of disbelief. There was nothing but dour looks on the faces of the prosecution team. The defense made a big show of asking to have the psychiatric records examined by the court for possible use against Cruz, but nobody really cared. The damage had been done.

Cruz testified under direct examination that one reason he lied to the DuPage detectives was because they had lied to him when they said the Aurora Police had given them his home address. He said he knew the Aurora Police didn’t know his address. However, he confirmed that he had reported his bicycle stolen in Aurora. The defense had a copy of that police report which listed his address. When Telander showed him the police report about the stolen property, and he affirmed that the address in the report was, in fact, his address, he had to acknowledge that the detectives had not lied about how they knew his address. Cruz now looked like a fool because his purported reason for lying was no longer valid. The jury laughed at him.

One of the missions undertaken by Terry Ekl was to tie Cruz and Dugan together. It was the theory in the second Cruz trial that both men were involved in the home invasion, assault and homicide though scant evidence had been found before that trial tying them together. Ekl and our two excellent investigators, however, thoroughly investigated the backgrounds of Dugan and Cruz, and discovered they had lived next door to each other at about the time of the Nicarico murder.

In order to establish that Cruz lived next to Dugan at the time of the murder, Ekl asked Cruz if he had ever resided at that location. He said no. When a sentencing investigation was done on Cruz for an earlier felony conviction, that address was given to the probation department. When he denied that he ever lived at that address, he was asked if he told the probation officer that he lived there, and he said that he had not. When he was shown a typewritten probation report listing that address, he attributed that to a DuPage public official who was only trying to frame him, and he again denied that he told the probation officer that it was his address. Cruz was then shown the handwritten form that he had filled out at the start of the intake process on which he had written biographical and residential information. Cruz admitted that it was his handwriting with that very address. When confronted with his own writing, rather than eat the fact that he had lied or been mistaken, Cruz’s answer was one that I will remember forever: "You asked me if I told the probation officer that I lived at that address. I wrote it. I didn’t tell it." The jury collectively rolled its eyes and snarled at Cruz for that answer.

Kunkle’s team read transcript after transcript of the trial defendants’ testimony at various hearing and trials, trying to emphasize inconsistencies. They hammered on my client’s delay until six months before trial in turning over three pages of notes from an interview with Brian Dugan’s attorney, despite that Kilander had delivered 800 pages documenting fully all aspects of the Dugan information years before. Kunkle introduced evidence about Montesano’s testimony, and then his recantation of that testimony, and then the prosecution rested. We argued for directed findings of not guilty.

The Judge, much to our surprise and much to his credit, granted a directed verdict of not guilty for Pat King and Bob Kilander at the close of the State’s case. Absolutely no evidence had been presented that either had intended to obstruct Cruz’s defense. Even if Kilander had failed to turn over the three pages of notes, a claim he immediately refuted on the record when the subject came up in 1989, the notes were provided again, about six months before Cruz’s second trial. Coupled with the release of the 800 pages to Cruz’s lawyers more than three years before, the court ruled there was no evidence of criminal intent, and for us, the case was over.

During the next several weeks, the remaining defendants produced witness after witness, including Grand Jurors, who had heard Cruz mention a dream or a vision to them. After character witnesses were called, the jury acquitted all of the defendants of all charges. Judge Kelly acquitted Robert Winkler, who had waived jury, before the jury returned the verdicts.

The trial was a trial lawyer’s dream. We had an intelligent, patient, compassionate judge who ruled decisively and quickly; aggressive, if misguided, opponents; and a magnificent client. We also had an unbelievably great collection of legal talent arrayed on behalf of the defense.

The defense team included Terry Ekl, a focused, organized, and thoroughly devoted lawyer for his client. Also present was Terry Gillespie, a gem from Chicago who delivered his lengthy opening and closing statements without a single note and whose cross-examination of Cruz was a masterpiece. Brian Telander provided a brilliant cross of Cruz, which the jury clearly found pivotal. Ernie DiBenedetto, who waived jury and proceeded by bench trial for his client, Robert Winkler, had a difficult job that he handled with aplomb and success.

I had tried cases against Dan Reidy when he was Assistant U.S. Attorney and I thought he was good then, but he is a marvelous defense attorney. His wit and dry humor are only exceeded by his grasp of the facts, knowledge of the law, and ability to cut through the morass and have a concise practical solution to the problems at hand. But his secret weapon in representing his client, Pat King, was his associate, Jason Winchester, a University of Illinois Law School graduate (as are Terry Ekl, Tom Knight, and myself) who had an encyclopedic grasp of facts. "Who said what to whom and when?" Jason always knew. He is a bright, fun, diligent young man who has a great future in the law.

If there is a hall of fame for Illinois lawyers, Joe Laraia should be enshrined there. You cannot find a harder working, more prepared, more dedicated lawyer to fight your cause. I was always amazed at the volumes of work he produced for his client, James Montesano. He did an extensive outline on a cross of Cruz, even though he wasn’t going to cross Cruz. His trial partner, George Lynch, is a legend in Cook and DuPage Counties where he can be heard in one courthouse, even though he is arguing in another. George brought great practical insight to the trial and jury selection.

I was blessed, too, with a great trial partner, Ron Menaker, who not only organizes a file so that every document can be easily found, but also knows every scrap of paper and fact which he can furnish immediately upon request. He is also an accomplished cross-examiner, having taught those skills at local law schools for years. In 1998 he didn’t loose a single case or motion in any court in Illinois. He is one of the finest trial lawyers in the state, and I’m proud he’s my partner.

I cannot say too much about the fairness, knowledge, and decisiveness of Judge William Kelly of Jo Daviess County who was assigned to hear this case. He took the bench promptly, listened to hours of argument, and ruled - not weeks, or even days later, but right after the last argument was heard. He understood the case and the issues, and he let the lawyers try their cases. It was a pleasure being before him and I would say that regardless of the result.

To win a major criminal trial is always pleasurable, but to win for a wonderful person like Bob Kilander doubles the pleasure. For years Bob has been a moral compass for young lawyers in the practice of law, both in the State’s Attorney’s office and in private practice. He was never known as one who would win at any cost, hide evidence, or make up facts. One of the State’s witnesses, a lawyer who represented Cruz on appeal, said that his brother, also a lawyer, told him that he received the fairest trial of his career before Judge Kilander. That is his reputation overall. To frame a citizen is an abhorrent idea to my client; to be falsely accused of that conduct was a nightmare.

To have played a role in helping regain that reputation as an excellent professional with a devoted and lovely wife and family will live with me forever. I still thank Joe Laraia for that call asking me to represent Bob Kilander, and I am so glad I was there to help.

Patrick A. Tuite is a Partner in the law firm of Arnstein & Lehr, where he heads the firm’s white collar criminal defense practice. He received is Undergraduate and Law Degree from the University of Illinois (B.A., 1958; L.L.B., 1961).


 
 
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