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Dugan attorney wants jury's 'life' verdict form preserved
By Christy Gutowski | Daily Herald Staff

Brian J. Dugan

 

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Published: 12/2/2009 10:18 AM | Updated: 12/2/2009 5:04 PM

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Attorneys for condemned murderer Brian Dugan took steps Wednesday to preserve a DuPage County jury's discarded 'life' verdict form for appeal purposes.

The ink was barely dry on the Nov. 10 verdict form to sentence Dugan to natural life when two jurors who initially resisted imposing a death penalty said they wanted more time to deliberate.

The next day, after both jurors pored over more evidence to resolve lingering doubts, members reached a unanimous decision that Dugan should die for the Feb. 25, 1983, murder of Jeanine Nicarico of Naperville.

Dugan, 53, won't be formally placed on Illinois' death row at Pontiac Correctional Center until after a perfunctory Dec. 16 court hearing in which Circuit Judge George Bakalis imposes the jury's capital punishment sentence.

On Wednesday, the defense team appeared before Bakalis to clarify exactly what happened and make sure that first signed verdict form still exists. Lawyers said while this is unchartered legal territory, they likely will ask Bakalis or a higher court to find the first verdict form is valid and, thus, toss out the death sentence.

"If he feels there is a legal basis to change it, he can," defense attorney Allan Sincox said.

Added co-counsel Steven Greenberg: "I don't think anything like this has ever happened before. We just want to clarify the record to find out exactly what occurred."

Bakalis said he kept both verdict forms, but he declined to make the first one part of the official record. DuPage State's Attorney Joseph Birkett noted each jury member was polled in court and confirmed a sentence of death was their unanimous decision.

The jury deliberated for 11 hours during two days before finding that Dugan should be executed for the 10-year-old girl's slaying.

Dugan has been serving life prison terms since 1985 for two other murders - nurse Donna Schnorr of Geneva and 7-year-old Missy Ackerman of Somonauk.

But Dugan came within minutes of getting a third life sentence.

Some jurors who spoke to the Daily Herald said they signed the initial "life" verdict form because they lacked a unanimous death decision. They said the two jurors who were in the minority pulled it back after realizing the decision was premature. By that time, Bakalis had announced in the courtroom that the jury signaled it had a verdict. There was about a 30-minute delay to allow the Nicarico family to return to court. They did. Still, at least 15 more minutes went by. Finally, Bakalis returned to the bench and informed a packed gallery of stunned families and reporters that the jury would continue its deliberations in the morning.

Members were sequestered overnight at a Lisle hotel.

The two jurors who initially resisted a death verdict told the Daily Herald that they kept an open mind and declined to sign a death verdict until a further review of the evidence to resolve lingering questions. The jurors said deliberations did not grow too heated; no one was pressured.