From the time DuPage County Sheriff’s Lt. James Montesano stepped from the witness stand Nov. 3, 1995, he has been variously viewed as a hero, a sinner and a sympathetic scapegoat.
Montesano came forward voluntarily that day to admit he had testified mistakenly at a pretrial hearing. His new statements prompted Judge Ronald B. Mehling to acquit Death Row inmate Rolando Cruz of the 1983 slaying of 10-year-old Jeanine Nicarico in the middle of Cruz’s third trial for the crime.
The judge’s scathing dismissal sparked a grand jury probe of the Cruz investigation, which in December 1996 yielded indictments against Montesano and six others on charges that they railroaded Cruz.
On Wednesday, Montesano gained a small measure of vindication when the judge presiding over his case dropped the perjury charge that touched off the maelstrom.
Still, the dismissal may be more symbolic than legally significant. Other charges, some of which carry the same punishment upon conviction, remain against the 13-year veteran sheriff’s officer.
And the most dramatic moment of the day may have occurred outside the courtroom.
Moments after the ruling, the dead girl’s angry parents–Thomas and Patricia Nicarico–asked for an investigation into “possible criminal misconduct” by special prosecutors handling the case against Montesano and the six others, known as the DuPage 7.
In a letter requesting the investigation into the special prosecution, they also said the case against the DuPage 7 “literally turns our stomachs.”
The Nicaricos have steadfastly supported the accused law enforcement officers and prosecutors, insisting they were sure Cruz had a role in the slaying of their daughter.
Shortly before taking the stand in 1995, Montesano, 47, told prosecutors he had erred in his earlier testimony, in which he recalled receiving a phone call in May 1983 from detectives who said Cruz was giving them incriminating details of the crime.
About two days before he was scheduled to testify at Cruz’s third trial, Montesano told prosecutors, he found a credit card receipt showing he was in Florida at the time and could not have received the phone call from the detectives.
In dismissing the perjury charge Wednesday, Judge William A. Kelly said Montesano corrected his inaccurate statement within what the judge considered the same legal proceeding.
The charges still pending against Montesano include official misconduct and conspiracy to commit official misconduct, both of which carry the same penalties as a perjury conviction; and conspiracy to commit obstruction of justice, punishable by a minimum of probation or a maximum of three years in prison.
If convicted of perjury, Montesano could have served a maximum of five years in prison. He also would have been eligible for probation.
The special prosecutors downplayed the impact of the dismissal.
“This doesn`t affect the rest of the case,” said special prosecutor William J. Kunkle Jr. “This doesn’t affect the underpinning of the case. Is our case unraveling? Hardly. So far in pretrial motions we are about 49 to 1.”
Later, at a highly charged news conference, Thomas Nicarico– normally stoic–was overcome with emotion while reading a letter that he and his wife sent to DuPage County State’s Atty. Joseph E. Birkett requesting the investigation into the special prosecution. Patricia Nicarico had to finish.
In the letter, the parents charged special prosecutors Kunkle and Michael K. Bartosz violated the law by allowing Cruz’s attorney, Thomas Breen, to offer false and inflammatory testimony to the grand jury.
Among the more explosive statements attributed to Breen and his investigator, John Eireman, were that detectives could have arrested another suspect who went on to murder two others, and that investigators gathered all the evidence against Cruz after his indictment.
The Nicaricos also alleged that Kunkle and Bartosz provided grand jurors with critical evidence in off-the-record sessions outside the presence of a court reporter and later attempted to hide that exchange from defense attorneys.
“Not only have the indicted DuPage County law enforcement officials earned this consideration (for an investigation),” Patricia Nicarico read, “but Jeanine’s memory deserves it, and justice demands it.”
Kunkle did not respond to the Nicaricos, saying he had a great deal of sympathy for their tragedy. He did acknowledge that allowing Breen’s and Eireman’s comments to the grand jury was a mistake, although he added that other grand jury witnesses corroborated their statements.
Breen said the Nicaricos “will continue to be in my prayers. It seems they are once again being used as defenders of those who are responsible for wrongfully charging and convicting Rolando Cruz and others.”
Breen added that some of his comments to the grand jury were improper but, “I’ll absolutely stand by them.”
Birkett suggested he would support an investigation of the special prosecutors. But he believes his office might not be allowed to conduct the investigation because it is representing five of the seven defendants in a civil suit filed by Cruz.
Kunkle said he was unsure whether he would appeal the judge’s decision to drop the perjury charge against Montesano.
Regardless, the trial of the seven men, originally set for March 10, probably will begin in the fall.
The seven men–four DuPage County sheriff’s officers and three former prosecutors–are charged with fabricating evidence against Cruz and concealing evidence that may have exonerated him.
Cruz was convicted and condemned to death twice for the Feb. 25, 1983, kidnapping, rape and killing of Jeanine Nicarico of Naperville Township. He appealed both convictions.
The next hearing is set for March 4.
