Daily Herald
Nicarico saga changed course of death penalty
Despite reforms, moratorium remains in place
By Christy Gutowski | Daily Herald Staff
Published: 11/11/2009 9:48 AM

The legacy born from Jeanine Nicarico's tragic death sparked a death penalty debate that forever changed Illinois' criminal justice system.

Brian Dugan's sentencing hearing concluded late Tuesday without a decision from the jury for the infamous 1983 slaying, but three other men long ago stood accused. Jurors resumed deliberations at 9:30 a.m. today.

Rolando Cruz spent 11 years in prison, much of it on death row, before his acquittal Nov. 3, 1995 during his third trial. A month later, prosecutors dropped charges against Alejandro Hernandez after his second conviction was overturned. Stephen Buckley won release in 1987.

The fallout that came after Cruz's acquittal was historic: Four DuPage County sheriff's officials and three prosecutors, known as the DuPage 7, were charged with conspiring to frame him. The men were acquitted in 1999.

Former Gov. George Ryan cited the Nicarico case as an example of a broken system when he enacted a 2000 moratorium on executions and later commuted the sentences of 167 condemned inmates to life in prison without parole.

Several reforms followed, as the exonerations continued. To date, Cruz is one of 20 death penalty inmates to be cleared in Illinois since 1977, when capital punishment was reinstated.

Two state laws that grew from the Nicarico case require that interrogations of murder suspects be recorded and that a judge determine the reliability of jailhouse informants before they may testify.

Defendants in capital cases also must be represented by two lawyers at trial. The attorney must be qualified through the capital litigation trial bar. A state trust fund was set up to ensure poor defendants such as Dugan can afford a fair trial.

Moreover, defendants have more access to DNA testing on appeal and are barred from facing the death penalty if the allegations hinge on a single witness. Police also must preserve evidence longer and turn over all notes to prosecutors, who share it with the defense at trial.

Critics argue more reforms are needed. Attempts to abolish the death penalty haven't advanced far in Springfield, but there has been a dramatic shift in how often death sentences are given.

Before the moratorium, experts say, 12 to 20 death sentences were imposed each year in Illinois. That number has dropped to fewer than four annually, similar to a national trend in which death sentences are down more than 60 percent since 1999 and executions have been cut in half.

"The (Nicarico) case became a moral tale about the dangers of prosecutorial zeal and the power of the emotions in the local community," said Richard Dieter, executive director of Death Penalty Information Center in Washington, D.C.

"The effects of all of this are not just some reforms, but a deeper skepticism about the death penalty in the American public. The fallibility of the system has been deeply exposed, and even proponents of the death penalty now see its inherent risks."

Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University, said the Nicarico case was the "touchstone" for many reforms. Without it, he said, the center likely never would have come to fruition. It's been instrumental in 37 exonerations, including nondeath cases, since formed in 1998.

Illinois has not executed an inmate since Andrew Kokoraleis, 35, who died by lethal injection March 17, 1999. He was convicted in DuPage County of the 1982 rape and torture killing of Lorry Ann Borowski, 21, of Elmhurst.

Kokoraleis and three members of his so-called "Ripper Crew" were responsible for the sex slayings of up to 21 women in Cook and DuPage in the early 1980s. The others remain in prison.

Since Ryan cleared out death row, 16 people were sentenced to death. One later committed suicide. And the Illinois Supreme Court granted a new trial for death row inmate Laurence Lovejoy, an Aurora man convicted of killing his stepdaughter, Erin Justice.

It'll be up to Illinois' next governor whether to lift the moratorium. Gov. Pat Quinn has declined to lift the ban, as did Rod Blagojevich before him. At least one challenger, Sen. Kirk Dillard, a Hinsdale Republican, has suggested enough reforms are in place to resume executions.

If so, Anthony Mertz is first in line. Mertz killed Eastern Illinois University student Shannon McNamara, of Rolling Meadows, in 2001. Eight years later, Mertz continues to exhaust his appeals and likely has at least three more years before an execution date nears.