The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Finalist of the Second Annual DCBA Writing Contest:
When Justice Hides Its Face
By Bob Gibson

As announced in the April issue, the Selection Committee for the Second Annual DCBA Writing Contest has selected three finalists. The first place winner and recipient of the $2,500 award was announced at the DuPage County Bar Association’s annual Law Day luncheon at Klein Creek Country Club on April 28, 2005, and will be listed in the June issue of the Brief. Each of the three finalists were personally invited to attend the luncheon, and were all acknowledged for their success. Many quality articles were submitted to the Selection Committee, and it is truly a credit to the three finalists efforts and abilities that they were selected. One of the three finalist’s articles is set forth below.

"Honest scales and balances are from the Lord; all the weights in the bag are of his making."

—Proverbs 16:11

Once in a while we play hooky from Sunday mass, and instead visit the nearby cemetery. I lead my tribe to the graves of relatives who lived and loved in days gone by, and we pray and ponder and pay our respects. I’m one of those people who believe we don’t acknowledge the past enough.

Later, we walk a short distance to the grave of Jeanine Nicarico. We say silent prayers for Jeanine, though knowing that she is with the Lord in paradise and no longer needs our prayers. If life were fair, Jeanine would be thirty two years old.

Jeanine was ten years old on that February day in 1983, home sick with the flu. Her mom, Pat, left her job as an elementary school secretary to drive home at noon to fix Jeanine a grilled cheese sandwich. Pat returned to work but spoke with Jeanine on the telephone in the early afternoon. Jeanine’s dad was at work and her sisters were at school.

In Aurora, Brian Dugan skipped work and drove into Naperville. He stopped at St. John’s Episcopal Church and spoke with Eileen Suk, a Church secretary, about a job. He wrote down his name and phone number. The Church stood five blocks from the Nicarico home. Dugan drove around smoking marijuana and did not like the way his car was running. He stopped at a residence and borrowed a screwdriver, worked on his car and resumed driving. His car – a green Plymouth Valiant – was still running roughly.

He stopped at the Nicarico house, and went to the front door. He could see Jeanine through a glass window but she refused to open the door. Dugan kicked the door in and Jeanine ran from him. He caught her, wrapped her in a sheet and carried her from the house. Prosecutors later argued that the petite Jeanine, four foot three inches tall, desperately clutched at the door frame with her tiny fingers, leaving parallel streaks three feet above floor level.

Dugan drove Jeanine to a wooded area by the Illinois Prairie path, sexually assaulted her in a variety of ways and bludgeoned her five times in the head with a tire iron, cracking open her skull. Dugan left her face down in the mud, blindfolded, clad only in a nightshirt depicting one of Snow White’s Seven Dwarfs with the words: "I’m Sleepy."

A massive task force including the FBI, the Naperville Police and the DuPage County Sheriff’s Office began mobilizing. Two days later, hikers found Jeanine’s dead body six miles from her home, by the Illinois Prairie Path between Naperville and Aurora. A manhunt for the killer ensued, but progress proved slow. Police received an anonymous tip to talk to Alejandro ("Alex") Hernandez of Aurora. Hernandez refused to talk to authorities at first – then wouldn’t shut up. He told jumbled stories, claiming knowledge of the crime. A petty thief, Alex stood five foot three and possessed a meager IQ. The names he implicated in the crime were Rolando Cruz and Stephen Buckley. Later Hernandez allegedly said: "I was there. I held her down. I’ll show where it was at."

DuPage County Sheriff’s Department detectives began interviewing Rolando Cruz a month after the crime. Cruz also told jumbled, contradictory stories, including that he knew who killed Jeanine Nicarico, that he was there but did not do it and that he was going to get the guy for doing what he did.

In May, 1983, the DuPage County State’s Attorney convened an investigative grand jury to help resolve the Nicarico case. This did not immediately lead to an indictment. No physical evidence linked any specific individual to the crime. Hernandez, Cruz, and Buckley remained suspects, with the theory being that of a robbery gone bad. Cruz certainly did not dispel the theory when on August 1, 1983, he was taken into custody on unrelated burglary charges.

In January, 1984, two months before his re-election bid, DuPage County State’s Attorney Michael Fitzsimmons announced he had insufficient evidence upon which to charge anyone in the Nicarico case. Later that month, Jeanine’s parents, Tom and Pat, made an agonized public plea for new information. Fitzsimmons’ challenger, Jim Ryan, criticized Fitzsimmons for the perceived failings in the handling of the Nicarico case.

On March 9, 1984, Fitzsimmons announced that the Grand Jury had handed down indictments against Rolando Cruz, Alejandro "Alex" Hernandez and Stephen Buckley, for the kidnapping, rape and murder of Jeanine Nicarico. Despite Fitzsimmons’ announcement, twelve days later Jim Ryan defeated Fitzsimmons in the race for DuPage County State’s Attorney.

By this time, prosecutors had secured evidence against Stephen Buckley, but not by way of self-incrimination. A North Carolina anthropologist and forensics expert, Louise Robbins, claimed Stephen Buckley’s boot definitely caused the boot print on the Nicarico’s front door.

Brian Dugan was a high school drop-out from East Aurora High School. He became known for burglaries where he would kick in the front door. He served four years in Menard Correctional Center for arson and burglary. He was released on parole in 1982 but arrested again and imprisoned at Joliet Correctional Center. Six months after his release, he kicked in the front door at the Nicarico home, and this horrible and heartbreaking saga ensued.

In late spring 1984, a DuPage County Judge released Dugan from prison on a recognizance bond relating to another felony burglary charge. Around 3:00 a.m. on July 15, 1984, a twenty-seven year old nurse from Geneva named Donna Schnorr was driving home from a party on a deserted rural road in Kane County. Dugan sideswiped her automobile and forced her off the road. He then tied her up, raped her and murdered her. Donna Schnorr’s father, Bernard Schnorr, shocked by his daughter’s murder, went into cardiac arrest the following day and died later that year. The crime went unsolved until the following June.

In the meantime, the case against Cruz, Hernandez and Buckley heated up as the trial approached, scheduled for January 7, 1985. At a Christmas party in December, 1984, DuPage County Sheriff Detectives Vosburg and Kurzowa conversed with a prosecutor about a vision statement they claimed Rolando Cruz made on May 9, 1983. Somehow neither the detectives nor the prosecutors had any written record of the vision statement. In the alleged vision statement, Cruz described the commission of the crime including unpublished details that only a perpetrator could know.

Controversy over the vision statement would continue for twenty years. In December, 1984, with the trial approaching, DuPage County Sheriff’s Detective John Sam resigned in protest over the prosecution of Cruz, Hernandez and Buckley. He effectively ended his eleven year career in the Sheriff’s office by testifying for the defense.

Despite Sam’s testimony, on February 22, 1985, the jury convicted Cruz and Hernandez but could not reach a decision on Buckley. On March 14, 1985, Judge Edward Kowal sentenced both Cruz and Hernandez to death.

Two and a half months later, Brian Dugan kidnapped seven year old Melissa ("Missy") Ackerman off her bicycle in LaSalle County, sodomized her and suffocated her by drowning. He snatched Missy’s playmate off her bicycle and into his car as well but she escaped out the window, narrowly avoiding Missy’s fate. Police arrested Dugan the following day. Days later, Dugan advised his attorney, public defender George Mueller, that besides Missy Ackerman he had also killed Donna Schnorr and Jeanine Nicarico and had raped three women: Demi Peterson, Sharon Grajeik and Cheryl Weaver. Dugan plea bargained for his life in the crimes against Missy Ackerman and Donna Schnorr, as well as the other three rapes, and on November 19, 1985, was sentenced to two life sentences plus 215 years. Prosecutors in LaSalle County and Kane County reached this plea agreement with Dugan.

In November, 1985, Mueller met with two DuPage County Assistant State’s Attorneys and proffered a hypothetical confession by Dugan to the crimes against Jeanine Nicarico, contingent on Dugan not receiving the death penalty. The prosecutors did not believe him. Dugan misstated some of the details he should have known, although he was accurate on others. The idea that with nothing to lose he might simply be seeking publicity or attempting to help Cruz , Hernandez, or Buckley, or even simply desiring to sabotage police and prosecutors, could not be discounted. The fact that Cruz, Hernandez, Buckley and Dugan had all been incarcerated at DuPage County Jail at the same time after Jeanine’s murder (Dugan for an unrelated burglary), factored in the decision. Any of these possibilities seemed more plausible than the idea that Dugan had a crisis of conscience. With Stephen Buckley’s retrial upcoming, prosecutors sought to bar statements attributed to Brian Dugan. If Dugan committed the crime alone, the Sheriff’s Office, State’s Attorney’s Office, twelve jurors and Judge Kowal had all made a horrible mistake, putting two men on death row who had nothing to do with the crime. Judge Nolan concurred with prosecutors regarding the reliability of Dugan’s hypothetical statement, calling him "a bad actor" and stating: "Mr. Dugan’s statements are not trustworthy…It is clear he was fabricating."

Prosecutors ultimately dropped charges against Buckley anyway. The case fell apart when the star witness, Louise Robbins, contracted brain cancer, and ultimately died. In the meantime, an American Academy of Forensics Science Seminar debunked Robbins’ claims concerning the definite match between Buckley’s boot and the boot print on the Nicarico’s door, finding the two had "many dissimilarities."

On January 19, 1988, the Illinois Supreme Court reversed the convictions of Cruz and Hernandez, finding the trials should have been separate. Two years later Cruz was retried and again convicted and sentenced to death. The following year, in 1991, Hernandez was again convicted but this time the trial judge sentenced him to eighty years in prison.

On December 4, 1992, the Illinois Supreme Court upheld the conviction and death sentence for Rolando Cruz. Justice Heiple, writing for the majority, found errors in the trial but dismissed them as harmless in light of the "overwhelming" physical evidence. This decision sparked an understandable public outcry, since even prosecutors had to admit that no physical evidence existed linking Cruz to the crime, much less "overwhelming" physical evidence.

On July 14, 1994, with three newly elected Justices having joined the Illinois Supreme Court, the Court reversed the December 1992 ruling and overturned the conviction of Rolando Cruz. The Court found several errors in the trial including allowing the jury to hear evidence concerning the actions of bloodhounds during the police investigation and allowing the State to impeach one of its own witnesses, Cruz’s cousin, Erma Rodriguez, in order to get inadmissible evidence before the jury. The Supreme Court also found that Cruz should have been allowed to introduce evidence about five of Dugan’s crimes, including the crimes against Melissa Ackerman, in order to show Dugan’s modus operandi. Justice Heiple, in one dissent, voted to uphold Cruz’s conviction and criticized former prosecutors, religious leaders and law school deans for getting involved in the case.

In January, 1995, the Second District Appellate Court reversed Alex Hernandez’s conviction and remanded the case for yet another trial. In September, DNA test results excluded Cruz, Hernandez and Buckley as the rapist. The results did not exclude Dugan. Only three men in 10,000, including Dugan, possessed that DNA.

In October, the retrial of Cruz began. Scrutiny over the alleged vision statement became the focus of the trial. Detectives Vosburg and Kurzawa had always maintained that Cruz had made the vision statement on May 9, 1983, and had called their superior, Lieutenant Montesano, at home for further instructions. Lt. Montesano had always backed the detectives’ testimony. As the years passed, Lt. Montesano began to doubt his prior testimony. When he talked to prosecutors to prepare for a pretrial hearing in August, 1995, he said he never talked to Cruz directly before. Prosecutors showed him a report he had written in 1983 in which he said he did talk to Cruz. He could not remember that conversation, nor did he have an independent recollection of the May 9, 1983 conversation with his two detectives concerning the vision statement. The three had always believed the conversation took place on a Friday, but the defense had pointed out that May 9, 1983, was actually a Monday. Montesano’s family reminded him that they were on a family vacation in Florida on May 9, 1983. Montesano found his credit card statements confirming that he was not at home on May 9, 1983, but rather in Florida.

Lt. Montesano testified at trial that he had no direct recollection or memory of the conversation on May 9 with his detectives regarding the vision statement. Montesano stated: "I had talked to them over the years and I believed it happened. I wouldn’t have testified to it otherwise." Two hours later, Judge Ronald Mehling entered a directed finding of not guilty for Rolando Cruz. Authorities released Cruz from prison where he had resided for twelve years, first on unrelated burglary charges, next for the crimes against Jeanine Nicarico.

On November 17, 1995, DuPage County Chief Judge Edward Kowal appointed William Kunkel as Special Prosecutor to examine the investigation and prosecution in Jeanine Nicarico’s kidnapping, rape and murder. The following month, prosecutors dismissed all charges against Alex Hernandez.

On December 12, 1996, a Grand Jury returned a forty-seven count indictment against seven individuals charging perjury, obstruction of justice, official misconduct and conspiracy. The seven individuals indicted, later known as the "the DuPage Seven" were Detectives Thomas Vosburg and Dennis Kurzawa, Lt. James Montesano and Lt. Robert Winkler, and then prosecutors Patrick King, Thomas Knight and Robert Kilander.

The case relied heavily on the testimony of Cruz, an admitted pathological liar. As might be expected under such circumstances, the trial, in late Spring, 1999, did not go well for the prosecution. In a choice between the honesty and integrity of seven highly regarded law enforcement individuals and that of a self-described "smart ass street punk," thief and fence, the choice was obvious. Defense attorneys had a field day demonstrating that Cruz had begun lying to the Grand Jury almost immediately after stating his name, even on matters of no consequence. Cruz had lied about his age, his military background and a host of other easily ascertainable facts. At trial, when Cruz confessed to currently seeing a psychiatrist in an attempt to stop lying, the case effectively ended. The fact that numerous individuals apart from the Defendants heard Cruz relate a vision statement sealed the result.

All of the "DuPage Seven" were found not guilty with Judge William Kelly entering a directed finding as to Patrick King and Robert Kilander before they even put on evidence. Despite the victory, a civil suit by Cruz, Hernandez and Buckley was settled by DuPage County for $3.5 million in September , 2000.

On January 31, 2000, Governor Ryan declared a moratorium on executions in Illinois, asserting that the system was "fraught with error." In March, 2000, Ryan formed a Commission to determine reforms for the death penalty system in Illinois. In April, 2002, the Commission recommended a host of reforms, including videotaping of all questioning of a capital suspect conducted in a police facility, and repeating on tape, in the presence of the prospective Defendant, any of the suspect’s statements made elsewhere. The Commission also recommended reforms in the conducting of lineups, and in the criteria for eligibility for the death penalty. The Commission recommended that a statewide commission review and confirm the decision by a local State’s Attorney to seek the death penalty, among other recommendations.

On November 5, 2002, former DuPage County State’s Attorney, James Ryan and current DuPage County State’s Attorney, Joseph Birkett, were defeated in their quests for Governor and Illinois Attorney General, respectively. That same month, Mr. Birkett announced that new DNA testimony established with "scientific certainty" that Brian Dugan was involved in the murder of Jeanine Nicarico.

One of the ways we can judge a community, a country, or even a civilization, is how well we protect the powerless from the powerful. Writers like Eric Zorn of the Chicago Tribune performed a valuable service in publicizing his opinion that prosecutors had convicted the wrong men. Nobody but a thoroughly wicked scoundrel or a crazy person would want an innocent man on death row. But Zorn’s belief descended into the predictable liberal mantra of the noble downtrodden minority fighting the corrupt and hard-hearted white male power structure. His view ignores the central undisputed fact that resulted in twenty-two years of injustice. When the DuPage County Sheriff’s Office, The Naperville Police, and the FBI began investigating the crime, Rolando Cruz and Alex Hernandez lied to the police about their knowledge of the crime and diverted the entire investigation away from the real perpetrator. Hernandez is the more problematic of the two to condemn, as experts pegged his IQ at between 73 and 85 - - borderline mentally retarded. Cruz, on the other hand, has admitted to intentionally lying and "playing with" police. He induced detectives to put him up in the Four Seasons Motel in Glen Ellyn during the investigation by claiming knowledge of the crime. From his motel room he held glue sniffing parties and went test driving Cadillacs he hoped to purchase with his reward money. A great many people apart from the DuPage Seven have asserted that Cruz claimed knowledge of the crime, either directly or by way of a dream or vision. A part-time West Chicago Police dispatcher testified at the trial of the DuPage Seven that Cruz told him he was part of a burglary team who broke into the Nicarico home, that he did not harm the girl, but that "white boy" did it. And if Cruz didn’t participate in the crime, it certainly must be deemed an astounding coincidence that Cruz and Dugan lived next door to each other at the time of Jeanine’s murder.

With revisionist history and new DNA evidence, Dugan’s story is now seen as gospel. But at the time, many credible people thought he was fabricating. Among them were Judge Nolan and Dugan’s own brother, Steve. Steve Dugan took his brother in with his own family for two years after Dugan was released from Menard Correctional Center, but thought his brother was lying about the crimes against Jeanine. The fact that Dugan’s story in 1985 misstated a host of details cast substantial doubt on his veracity. So did the fact that he was a vicious career criminal with no incentive to tell the truth. We now know that his poor grasp of certain details likely resulted from a lifetime of burglaries and rape (we know of six rapes) clouded further by being stoned on pot during the commission of the crimes against Jeanine. The fact that Dugan, Cruz, Hernandez and Buckley had all been incarcerated in the DuPage County Jail at the same time after Jeanine’s murder (Dugan on an unrelated burglary charge) raised the possibility of collusion.

Many people tout self-defense or self-preservation as the most fundamental human urge. From my observation, defense of children, particularly one’s own children, trumps self-defense. I suspect that for most of us with children, we would die to prevent their death. And when we hear about barbaric acts against children like those against Jeanine Nicarico it becomes very difficult to stay clear-headed, calm and rational. While I do not agree with much of Scott Turow’s book "Ultimate Punishment," I do not doubt that an element of truth lies in the following statement: "The notion of a ten-year old girl being overpowered by an intruder and dragged from the safety of her parents’ home, sexually tortured, and then in the end beaten to death is so revolting that I used to explain Alex’s and Rolando’s convictions by saying that I thought Mother Teresa might have been in jeopardy if she were in the defendant’s seat. Jurors are unwilling to take the chance of releasing a monster into our midst, and thus will not always require proof beyond a reasonable doubt." 1 Except that Rolando Cruz is hardly Mother Teresa. What Cruz did in lying and playing with police in this context is absolutely shameful, not to mention an egregious crime. We will never know whether his obstruction of the investigation kept Dugan on the street so that he could rape and murder Missy Ackerman and Donna Schnorr and rape three other women. Any citizen should expect to go to jail for lying under these circumstances and should not expect a seven figure payment upon release.

We rely on law enforcement personnel to perform the most difficult and important tasks in a free society — such as keeping us safe from predators like Brian Dugan. These public servants, like those wrongfully prosecuted for their work in this case, deserve our respect, even admiration. Instead in this case, a special prosecutor put them on trial, with their reputations and careers at stake.

The only issues for Brian Dugan are whether the DuPage County State’s Attorney, Joseph Birkett, will charge him for the atrocities against Jeanine Nicarico, and if charged, whether he will seek and obtain the death penalty against Dugan. If so, we can expect a bitter fight over the admissibility of Dugan’s hypothetical confession, made in the context of plea negotiations, as well as the admissibility of much of the evidence gathered as a result of it, including the DNA evidence. The crowning indignity, which cannot be ignored, would be for DuPage County to prosecute Dugan and fail.

My only exposure to attorneys as a child was watching Perry Mason on television. There Perry, tough and smart and brutally honest, would successfully defend innocent murder defendants and in the process would find the real perpetrator. Perry Mason stood for justice. We all get disillusioned to some extent as adults, seeing how the world really works, full of successes and failures and the bittersweet in-between. Nevertheless, the longing for fundamental justice in our community and our world remains alive, especially when life and death matters are at stake.

Scott Turow correctly summarizes the central argument of those who favor capital punishment: "Sometimes a crime is so horrible that killing its perpetrator is the only correct response."2 Brian Dugan’s crimes against Jeanine Nicarico, along with the other atrocities Dugan committed, call for a punishment of execution. While he sits in prison for other crimes, DuPage County has not yet held him accountable for his actions in this County. As I look at a picture of Jeanine, a smiling and dimpled pixie, I can’t help feeling disgust and shame as a lawyer, that hers is the most notorious case in DuPage County’s legal history. Time still remains to gain a measure of justice and closure, first for the Nicarico family and second for the community. Maybe then the mortgage on this wad of woe will finally be paid off.

1 Scott Turow, Ultimate Punishment, a Lawyer’s Reflection on Dealing With The Death Penalty, 36 Farrar, Strauss and Giroux, First Picador Edition, August, 2004.

2 Id. at 63.

Bob Gibson is a partner in the Naperville law firm of Dommermuth, Brestal, Cobine and West, Ltd. He received his undergraduate degree in government from the University of Notre Dame in 1980; His law degree from the University of Illinois in 1983 where he won the Rickert Award as the outstanding advocate in the national moot court competition. He is a former Chairman of the Real Estate Law and Practice Committee of the DCBA. He currently serves by appointment by the Illinois Supreme Court on the Character and Fitness Committee, Second District, for prospective Illinois attorneys. He resides in Naperville with his family.

DCBA Brief