The seven current and former DuPage County law enforcement officials accused of criminal misconduct in the investigation and prosecution of Rolando Cruz will be tried together in one proceeding, a judge ruled Wednesday.
Judge William A. Kelly rejected defense arguments that the cases against the seven defendants be heard in at least two separate trials to keep the case from turning into a “circus.”
Defense attorneys argued that the case was too complex to be held in one proceeding.
Prosecutors allege that the seven participated in a conspiracy to railroad Cruz in the 1983 murder of 10-year-old Jeanine Nicarico of Naperville Township.
Cruz twice was found guilty and sentenced to death for the killing, but the convictions were overturned on appeal. During Cruz’s third trial, a key prosecution witness changed his testimony, and the case against Cruz was dismissed and he was freed from prison after spending 10 years on Death Row.
Special prosecutor William Kunkle alleged in a 79-page indictment in 1996 that former prosecutors Robert Kilander, now a DuPage Circuit Court judge; Patrick King Jr.; and Thomas Knight; and Sheriff’s Officers Dennis Kurzawa; Thomas Vosburgh; James Montesano and Robert Winkler concocted evidence against Cruz and concealed other evidence that might have exonerated him in the killing.
The seven are alleged to have acted in a conspiracy over 11 years, according to the indictment.
In arguing that the case be severed into two trials–one for the former prosecutors and one for the sheriff’s officers–Terry Ekl, who represents Knight, told the judge that some of the evidence pertaining to certain defendants might improperly implicate other defendants. He also argued that the sheer numbers of people and exhibits in the courtroom would turn the case into a circus, prejudicing the jury against the defendants.
Taking a shot at prosecutor Kunkle, Ekl raised his voice during arguments, saying: “It’s to his advantage to create confusion. He wants to take all his evidence and slap it up against the wall and say, . . . `See, all these guys must be guilty.’ “
Kunkle argued that all the evidence in the case pertains to all the defendants, and therefore, it would be uneconomical to hold more than one trial.
“Evidence that shows a conspiracy by any one of the defendants can be admitted against all the defendants,” Kunkle said. “All of it (evidence) is going in against all these defendants, whether it’s one trial, two trials or seven trials.”
Kunkle also noted that there will be enough safeguards in place to protect the defendants against possibly prejudicial evidence.
Defendants will have an opportunity in pretrial hearings to argue against the admittance of certain evidence at trial, Kunkle said. And if, in a worst-case scenario, a witness takes the stand and says something completely unexpected and prejudicial, a mistrial could be declared for the defendant or defendants harmed by the testimony, and a separate trial could be held later.
In a brief statement from the bench, Judge Kelly said that he didn’t believe the quantity of the evidence would create a problem, and said he would work with the lawyers to come up with a plan to fit all the lawyers, defendants, exhibits and equipment in the courtroom.
Judges have the authority to conduct separate trials for cases involving multiple defendants if there is a compelling reason to do so. Typically, separate trials are granted if the accused implicate their co-defendants in the crime.
After Kelly ruled that there would be just one trial, Ekl asked Kelly to approve a subpoena for medical records pertaining to Cruz. Ekl revealed that Cruz had been admitted into a psychiatric ward at Mercy Center for Health Care Services in Aurora in November 1982.
Kelly said he would not approve Ekl’s efforts to get the records until Cruz’s lawyer has an opportunity to be heard on the matter.
Cruz’s lawyer, Thomas Breen, said Cruz’s hospitalization is old news and is “absolutely of no importance.”
“It was of no importance to anyone in the last 12 years who prosecuted Rolando Cruz, and it’s going to be of absolutely no importance to those who framed him,” Breen said. “Obviously, their (the defense) tactic is to throw as much mud at Rolando Cruz as they can to take the focus off what the charges are. The charges are based on the fabrication of evidence against Rolando Cruz. Perhaps Mr. Ekl should begin to defend those charges as opposed to constantly name-calling Rolando Cruz.”
Breen would not comment about why Cruz was hospitalized, or whether he would object to the defense lawyers scrutinizing the hospital records.
Ekl told reporters after the hearing Wednesday that he had information that Cruz was hospitalized because he had a “mental breakdown and rage attack.”
