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Dugan tapes are admissable
Judge rules excerpts of 1986 interviews can be used at trial
By Christy Gutowski | Daily Herald Staff

In 1986, an imprisoned Brian J. Dugan provided a hair for a DNA sample, as pictured here, for the ongoing investigation into the Feb. 25, 1983, slaying of 10-year-old Jeanine Nicarico of Naperville.

 

Courtesy of Illinois State Police

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Published: 2/14/2008 12:08 AM

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Parts of the decades' old audio recordings in which Brian Dugan details his acts of sexual violence are admissible in his trial for the 1983 murder of a Naperville schoolgirl, a judge ruled Wednesday.

DuPage Circuit Judge George Bakalis granted the prosecution's request to use excerpts of the tapes, but he cautioned only relevant statements that are not too prejudicial will be allowed. He set a March 13 hearing on the issue.

Dugan was recorded during three interviews in October 1986 for a state police study of sexual predators. He was serving life prison terms for two slayings, including that of a 7-year-old girl.

In the tapes, Dugan does not name 10-year-old Jeanine Nicarico, who was abducted, raped and killed Feb. 25, 1983, but he does make incriminating remarks, such as, "when I did the others."

The 51-year-old former Aurora man's defense team fought hard to bar the audio recordings, arguing the conversations were inadmissible because they were part of ongoing plea negotiations.

"Why else would he be talking to them?" defense attorney Steven Greenberg argued. "To be a good Samaritan?"

He also challenged the credentials of the state police official who conducted the study.

The official, Robert Thorud, was never a licensed psychologist in Illinois, but he has a masters in counseling psychology, as well as additional graduate work, internships, and 25 years of experience.

DuPage State's Attorney Joseph Birkett said the issue was irrelevant.

Furthermore, he said the interviews were not part of any protected plea talks and, therefore, are fair game to the prosecution.

For example, Birkett cited one statement in which Dugan said he'd like to talk about what happened to Jeanine, but he can't because he is not protected legally and is afraid of the death penalty.

"We should not be punished and have the evidence not be available to use because he made mistakes and made references to Jeanine Nicarico," Birkett said. "That is his problem."

Judge Bakalis agreed, finding Dugan willingly made the remarks against his lawyer's advice.

He cited a letter from Dugan's former attorney, Tom McCulloch, who advised his client months earlier to keep mum because there's still no plea agreement.

Both McCulloch and Ed Cisowski, a retired state police commander who arranged the interviews, testified Wednesday.

Dugan is serving two life prison terms for killing Melissa Ackerman, 7, in June 1985 in Somonauk -- a small town 25 miles southwest of Aurora -- and Geneva nurse Donna Schnorr in July 1984.

Birkett will pursue the death penalty if Dugan is convicted of killing Jeanine. Dugan claimed sole responsibility for her murder during 1985 protected plea talks for the other two slayings, but prosecutors didn't pursue it because he'd only confess if his life was spared. They also didn't believe him.

Meanwhile, three other men were charged and later cleared, but not before two spent a decade on death row. Seven officials were acquitted of railroading one of the men. The county settled their lawsuits for $3.5 million.

Then, more than two years ago, in Nov. 29, 2005, prosecutors indicted Dugan for Jeanine's murder, citing, in part, improved DNA evidence -- semen and hair -- they said implicates him.