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Brown's prosecution strategy debated
By Christy Gutowski | Daily Herald Staff

James E. Degorski

 

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Published: 9/15/2009 8:48 PM | Updated: 9/15/2009 11:51 PM

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He uttered only one recorded incriminating word.

Still, prosecutors fought hard to ensure one day a jury could hear James Degorski's videotaped police statement in which he admits killing two of the seven people slain at a Palatine Brown's Chicken restaurant.

But in a surprising move, the prosecution opted against playing the 41/2-minute tape before resting its case earlier this week after eight days of testimony.

Cook Circuit Judge Vincent Gaughan's strict gag order bars lawyers in the death penalty case from explaining the decision. Some legal experts theorize it's simple trial strategy and not without precedent.

"The only reason I can guess - and I'm guessing like the rest of the world - is that it would have hurt them more than help them," said attorney Richard Kling, a Chicago Kent School of Law clinical professor. "I think they simply made a tactical decision, and I don't think it was made last minute."

Instead, prosecutors relied upon the testimonies of former prosecutor Michael McHale and Palatine police Cmdr. William King, both of whom said Degorski gave them a detailed account of the Jan. 8, 1993, slayings.

McHale, now a Cook County judge, testified that Degorski confessed after his May 2002 arrest that he shot restaurant owner Richard Ehlenfeldt and employee Tom Mennes. McHale said Degorski, now 37, also admitted cleaning up the crime scene as co-defendant Juan Luna slit Lynn Ehlenfeldt's throat and shot the other employees in a large walk-in freezer.

But after the subject of recording the interview came up, McHale said Degorski got cold feet.

The tape was played during an earlier pretrial court hearing. In it, McHale said: "And that during the robbery, you shot two people in the cooler and Juan shot the other five and stabbed the lady. Money was taken and was split up between you later. Is that correct?"

"Right," Degorski responded.

Degorski then refused to answer any more questions on tape after McHale read his Miranda rights, which include the right to remain silent.

"It'll be easier to just say it one time or say it in court," Degorski said on the tape. "I've already said it. It's not like I have anything to hide or whatever."

DuPage State's Attorney Joseph Birkett, past president of the Illinois State's Attorneys Association, said one theory is the short taped snippet actually could diminish the strength of what McHale and King told jurors. They might ask: Where's the rest of the taped confession?

"Why should they play a tape and feed into the defense's theory that he only confessed under pressure?" Birkett said. "You don't want to take away from otherwise solid evidence."

Judge Gaughan barred the Degorski tape from being played at trial in an Oct. 5, 2007, ruling, saying authorities should have reread the defendant his rights before filming the statement. In April 2008, an Illinois appeals court overturned Gaughan and sided with prosecutors.

Still, some experts theorize whatever benefit the tape may give prosecutors could be outweighed by the defense's anticipated questions about whether Degorski's rights were violated.

Without the tape, the prosecution's case rests largely upon unrecorded law enforcement statements and the testimonies of Degorski's former girlfriend and another friend who said he confessed to them afterward.

Prosecutors were barred from playing Luna's 45-minute videotaped confession in which he also implicates Degorski. Luna, 35, tried separately, is serving a life prison term.

As the trial progresses, time will tell if the Degorski prosecution permanently edited the video out of its case or, instead, is saving it on rebuttal to keep it fresh in jurors' minds before they begin to deliberate.

"This way, you have something in your arsenal that the jury hasn't heard yet," said Birkett, a veteran prosecutor. "There's a lot of strategy that goes on in a trial."