Rolando Cruz’s rare third trial represents the best chance he has ever had to win acquittal on charges that he participated in the abduction, rape and murder of Naperville schoolgirl Jeanine Nicarico, legal experts say.
Experts believe that the more times a defendant faces trial, the more likely he is to be exonerated. So Cruz, now on Death Row at the Menard Correctional Center, is hoping the third time will be his personal charm.
Meanwhile, another trial adds more time to the lengthy turmoil already suffered by the Nicarico family. Time has become the family’s nemesis.
More than 11 years have passed since Jeanine stayed home ill from school on Feb. 25, 1983, and fell victim to one or more intruders who burst into the Nicarico home.
In that time, one prosecution witness has died, and another disappeared, then resurfaced. Recollections have become cloudy. And the Illinois Supreme Court’s decision on Thursday expands the amount of evidence that Cruz’s attorneys can introduce in a new trial to help implicate another man in the crime.
“As a general proposition, Rolando Cruz’s defense attorneys are in a much better position to try a case than the assistant state’s attorneys are, just because of the passage of time,” said Ernest DiBenedetto, a former gang crimes prosecutor in the Cook County state’s attorney’s office who now is in private practice.
DiBenedetto, a prosecutor in the first and third trials of an accused murderer in Cook County, said witnesses often become difficult to track down as time passes. In Cruz’s case, he added, the prosecution also has to deal with the fact that they can no longer exclude evidence that suggests convicted murderer Brian Dugan may have committed the crime.
Randolph Stone, a former Cook County public defender who’s now a clinical professor of law at the University of Chicago Law School, agreed that the passing of time makes multiple trials more difficult.
“The evidence gets stale; witnesses’ memories are less than credible, and sometimes their imagination takes over about what really happened,” Stone said.
But Stone and other attorneys say that can be overcome. Much of the testimony in previous trials is committed to paper, and witnesses are able to refresh their recollections by reading it.
“At this point, in going to trial a third time, I don’t think there’s going to be a whole lot of surprises,” said attorney Terry Ekl, another former Cook County prosecutor also in private practice.
And while Cruz may have a better chance to win acquittal this time, a third trial is neither unprecedented nor lucky.
DiBenedetto gained a conviction after two hung juries in the Cook County murder trial he prosecuted in 1981. A Kentucky man charged in a double murder in 1958 underwent four trials and was finally convicted four years after being charged.
And in one of the most celebrated multiple trial cases, 73-year-old Byron de la Beckwith was convicted in February of the slaying of civil rights leader Medgar Evers in 1963. Two previous trials had ended with hung juries.
In these cases, as in Cruz’s trials, the guarantee against double jeopardy-which prohibits a defendant being tried more than once for the same crime-does not apply. By appealing his convictions, Cruz was “implicitly consenting to a new trial,” said John F. Decker, a De Paul University criminal law professor.
Stone noted that time often yields new evidence that can clear a defendant. He was involved in the defense of two men charged in the slayings of two North Side businessmen during a robbery attempt, a case that came to be known as the “Hot Dog Stand Murders.”
The first two trials concluded with hung juries while a third ended in a conviction. The Illinois Supreme Court ordered a new trial, which ended without a verdict, and a fifth yielded an acquittal.
As the case dragged on, a witness came forward with evidence that discredited prosecution testimony, Stone said.
In the Cruz case, the succession of trials may shake the public’s belief in the justice system, Ekl said.
As DuPage County State’s Atty. James Ryan noted after the ruling, the only difference between the high court’s last review of the Cruz case in 1992, which upheld the second conviction, and this review, which set it aside, was the presence of three new justices on the court.
“When something like this happens,” Ekl said, “it cuts into the integrity of the judicial system. People stop and say, `Why is this happening?’ “
And while reports of a possible plea agreement have surfaced, DiBenedetto and others say the case is too prominent and controversial to be resolved through compromise.
“Everybody would be outraged at that one,” DiBenedetto said.
Beyond the legal setback posed by the ruling, Ryan may find himself practicing political damage control in upcoming months. The DuPage Republican is in the closing months of his campaign for the office of Illinois attorney general, facing the deep pockets of millionaire attorney Al Hofeld.
The politically expedient solution, said Don Rose, a Chicago political consultant, would have been to announce that Ryan’s office would make a decision after a thorough review of the case and the latest Supreme Court ruling.
“He could have bought a little time, and he had the possibility of diffusing or at least cooling the ardor of the pro-Cruz movement,” Rose said.
But Ekl defended the state’s attorney, saying Ryan has decided to prosecute Cruz again for one reason: He believes Cruz is guilty.
“He is the most honest and ethical person in the world,” Ekl said. “If every state’s attorney was like Jim Ryan, it would be a wonderful system.”
