Citing a multitude of legal issues ranging from a wrongful arrest to a bogus confession, attorneys for convicted murderer Gary Gauger filed their anticipated appeal Thursday in hopes of winning the Richmond man a new trial and perhaps his freedom.
Lawrence Marshall, a law professor at Northwestern University who has taken on Gauger’s case, submitted the appeal to the 2nd District Illinois Appellate Court in Elgin. The principal author of the appeal, Marshall said he is confident that the court will side with his client, a pot-smoking, alcoholic organic farmer who was convicted of the gruesome April 8, 1993, murder of his parents, Ruth and Morrie Gauger.
The appeal focuses on three key issues:
– That Gauger, who was 41 years old at the time, was arrested without probable cause. Gauger, who was living with his parents at the time of the slayings, was arrested shortly after the bodies were found because police officers on the scene believed he had not searched for his parents aggressively enough during the two days they were missing. They also believed that Gauger was acting oddly.
– That the state violated discovery rules by introducing testimony from a deputy who booked Gauger into the McHenry County Jail without giving Gauger’s defense team time to prepare. Deputy Sheriff Joy Patnaude told the court that Gauger admitted to blacking out the day before, supporting a theory that Gauger couldn’t remember the murders because he had an alcoholic blackout. Gauger’s defense team was then not given a chance to refute Patnaude’s “surprise testimony,” the appeal says.
– That jurors received “misleading and distorted information” about a polygraph exam given to Gauger. Jurors were told that Gauger did not pass the polygraph, when in fact the results of the exam were inconclusive because Gauger was fatigued.
“There is every reason to believe that the jury that deliberated on Gary’s guilt falsely thought that he had failed the polygraph,” the appeal states.
The appeal also argues that there is no physical evidence, or eyewitness testimony, linking Gauger to the murder. The key to the prosecution’s case, it insists, is a questionable confession obtained after an 18-hour interrogation that contains only details that Gauger had already been told by police.
“The real facts ended up refuting the confession,” Marshall said in an interview Thursday. “Gary parroted back what the police told him. . . . You’re left with a confession that is totally uncorroborated.”
Citing a similar case from Connecticut in which an 18-year-old falsely confessed to killing his mother, the appeal suggests that Gauger confessed only because investigators had tricked him into believing he committed the crime during a blackout. Gauger offered a hypothetical confession, the appeal said, in an attempt to jog his memory.
The appeal also cites two other points as reason the Appellate Court should award Gauger a new appeal. It argues that prosecutors wrongfully used Gauger’s right to remain silent against him, telling jurors that Gauger kept quiet because “he confessed and in his heart of hearts, it is the truth.”
“. . . Miranda warnings contain an implicit assurance that silence will carry no penalty,” the appeal says.
The appeal also suggests that prosecutors distorted scientific evidence, telling jurors in closing arguments that two knives recovered on the Gauger property fit a wound on Ruth Gauger’s head “like a key in a lock.” Earlier, however, a pathologist testified that the wound could have been made by “a knife, rock, a hammer or some other instrument,” the appeal says.
McHenry County officials had no comment on the appeal. On Thursday, McHenry County Assistant State’s Atty. Philip Prossnitz, who was one of the prosecutors in the Gauger case, said, “We presented our case to a jury of 12, and they’ve made their decision.”
The McHenry state’s attorney has 35 days to respond to Marshall’s appeal.
A decision by the Appellate Court could take several months to a year, McHenry officials and Marshall said.
The appeal represents the latest chapter in one of the most publicized and controversial murder cases in McHenry County history.
In April 1993, Ruth and Morrie Gauger, Gary’s parents, were murdered on their 214-acre farm outside Richmond.
The body of Morrie Gauger, 74, was found in the shop he operated; the body of 70-year-old Ruth was discovered in the small trailer that served as a rug shop. Both had their throats slit.
