The distance between the Glen Ellyn office where Bonnie Serpico was slain and the Chicago courtroom where a lawyer for her killer argued his latest appeal Wednesday is better measured in years than miles.
Serpico, a 34-year-old mother of two, was shot to death in 1978. The 15 years since her death have not eased the pain for her husband, Andy.
“People often say `15 years,’ meaning it’s a long time,” he said. “But it’s like a cancer. Every time, it’s brought up, it irritates you. It burns at you.”
On Wednesday, Andy Serpico was in the oversized courtroom on the 27th floor of the Dirksen Federal Building as the lawyer for James P. Free Jr., the ex-soldier convicted of killing Serpico’s wife, urged a U.S. Appeals Court panel to set aside the death sentence imposed in 1979.
Bruce Braun, one of Free’s court-appointed attorneys, contended that the legal instructions given jurors in death-penalty proceedings in Illinois are unconstitutionally incomprehensible.
Research done in 1990 and 1992 by the late Hans Zeisel, a University of Chicago law professor, suggested that jurors are likely to be confused by some of the legal language judges use to guide jury deliberations.
Free’s appeal is an important test of the Illinois death-penalty statute, which was adopted in 1977. If the Appeals Court agrees that the jury instructions are invalid, the death sentences imposed on about two-thirds of the 153 inmates awaiting execution in Illinois could be overturned.
Free’s lawyers contend in written arguments that the state’s jury instructions are characterized by the “use of quadruple negatives, obscure language, tortured syntax and puzzling structure.”
If Free is to be sentenced to death, the jury instructions should be “clear and intelligible,” Braun told the panel.
Lawyers for the Illinois attorney general’s office question the reliability of Zeisel’s research and note that jurors weighed Free’s fate in a sentencing proceeding, which included testimony and arguments by lawyers and the judge’s instructions.
One of the questions confronting the court is whether trials and sentencing proceedings are to be evaluated as a whole or dissected and examined in segments.
But, as lawyers discuss-and judges consider-the legal issues at stake, Andy Serpico hopes his wife will be remembered.
Sitting at a table last week in the kitchen of his west suburban home, he explained why he thought it was important for him to attend Wednesday’s arguments.
“The Appeals Court judges will get to know James Free,” said Serpico “Nobody will get to know Bonnie Serpico. I can represent Bonnie. I don’t think Bonnie should be forgotten.”
Bonnie Serpico and a 20-year-old college student were working during the early morning hours of April 24, 1978, at an all-night key-punch firm in a Glen Ellyn office complex.
Free, a former employee of the janitorial firm that serviced the office, entered the building around 4 a.m.
Armed with a handgun, Free told the two women he intended to rape them. He tied the student with a rope and then took Bonnie Serpico into another room.
When he returned to check on the other woman, who was trying to free herself, Serpico attempted to run from the area and was shot in the back. Free then shot and wounded the student and fled.
He was arrested the next day in Dubuque, Iowa, and charged with murder, attempted rape and attempted murder.
Free’s convictions and death sentence have been upheld three times by the state Supreme Court. The U.S. Supreme Court declined to hear Free’s appeals three times.
In 1989, Free filed a habeas corpus petition, which allows federal judges to review state court proceedings when serious violations of constitutional rights are alleged.
During extensive hearings before a magistrate, Braun and Kimball Anderson, lawyers at legal giant Winston & Strawn, presented evidence that they contend suggests jurors did not understand what factors to consider and how to weigh the evidence in determining whether to impose the death penalty.
Last fall, U.S. District Judge Marvin Aspen agreed that the instructions were constitutionally flawed. He ordered that Free be resentenced.
The Chicago-based U.S. Court of Appeals for the 7th Circuit has upheld the Illinois death-penalty statute, but Braun and Anderson contend those decisions were reached without the benefit of Zeisel’s research.
The notion that jurors are presumed to follow instructions is “a not-too-sacred cow that should give way to the valid, compelling evidence presented by Mr. Free,” they say in written arguments.
But Chief Judge Richard Posner was critical of the empirical evidence, noting no studies were done to suggest that any other instructions would score better in a jury survey.
Though comments from the bench don’t always indicate how a judge might rule, Posner questioned whether research showing that potential jurors did badly on a questionnaire also proved they would do badly in reaching a decision at a trial after hearing testimony, closing arguments and the judge’s instructions.
Terence Madsen, chief of criminal appeals for the attorney general’s office, said afterwards that if Aspen’s ruling were upheld, it could affect a large number of death penalty cases.
Braun disagreed, saying it would be hard for other Death Row inmates to make the same sort of claims Free has made.
There was only a brief mention of Bonnie Serpico during the hourlong oral arguments. That’s part of the nature of habeas proceedings, which focus mostly on legal issues.
Andy Serpico talked last week about how, even now, watching a murder on television is painful.
“Every time I see a movie on TV about a murder, don’t you think I think about that,” he said “Time doesn’t change anything. When somebody dies a natural death or dies in an auto accident, that’s something you understand. There was no purpose in this.”
