After more than two years of pretrial wrangling, lawyers in the DuPage 7 trial have one more controversy to tackle before jury selection is scheduled to begin Tuesday at the DuPage Judicial Center in Wheaton.
Special prosecutor William Kunkle, who is presenting the state’s criminal case against the seven current and former DuPage County law-enforcement officials accused of railroading Rolando Cruz in the 1983 slaying of 10-year-old Jeanine Nicarico, wants to use actors to present portions of testimony from Cruz’s three trials.
But defense lawyers, angry because they will have no role in selecting the actors, have asked Judge William A. Kelly, who approved the prosecution’s use of actors in late February, to reconsider his decision.
Those last-minute motions and arguments are expected to be heard before jurors are empaneled. Jury selection is expected to take two to three weeks to complete.
Kunkle has said the actors will portray the defendants, who took the stand as witnesses or posed questions to the witnesses during the trials, and others who had a role in prosecuting Cruz.
The defendants are DuPage County Sheriff’s Lts. James T. Montesano and Robert L. Winkler; county Detectives Dennis Kurzawa and Thomas E. Vosburgh; and former prosecutors Robert K. Kilander, Patrick J. King Jr. and Thomas L. Knight.
Cruz was twice convicted and sentenced to death for Nicarico’s slaying, but the verdicts were overturned by the Illinois Supreme Court. During Cruz’s third trial, a DuPage County judge threw out the case against him amid allegations of misconduct by the seven investigators and prosecutors.
Kunkle says the trial testimony is the main part of his case, which alleges that the defendants concocted evidence against Cruz or withheld evidence that would have exonerated him.
He contends that the use of actors will help jurors keep track of who’s who, and he has said that actors do a better job of reading testimony.
“It’s done all the time,” Kunkle said.
But defense lawyers have serious questions.
What if the actors sway jurors by their looks and mannerisms alone? What if an actor adds an inflection that gives the impression of dishonesty or cockiness? And what kind of direction will Kunkle give the thespians?
“Bill is going to seize an advantage anyplace he can,” said lead defense lawyer Terry Ekl.
Legal experts and lawyers who routinely use actors insist that judges are an adequate safeguard against such risks. Others say that an actor’s performance also could harm the prosecution’s case by overwhelming or alienating jurors.
One point on which everyone seems to agree: Actors have the ability to bring the written page to life in a way that most lay readers cannot.
“Sometimes, reading the cold record doesn’t impart the same information as watching a live witness testify,” said Ronald Allen, a professor of criminal law at Northwestern University. “Listening to material being read to you is excruciating after half an hour, let alone three days.”
Ian Harris, founder and president of Law Actors Inc., a Chicago-based casting agency for lawyers seeking to hire actors, said he has handled about 100 court cases in the six years he has been in business. All his cases, however, have been in civil court.
In fact, several civil and criminal lawyers said this is the first instance they can recall in which actors have been used in a criminal case.
“In criminal cases, there’s generally not much done in the way of deposition testimony, so it’s less likely that you have questions and answers that need to be read off a transcript,” said Steve F. Molo, a Chicago attorney who has used actors in his practice.
Chicago actor Robert Breuler, 59, a member of the Steppenwolf Acting Ensemble performing at the European Repertory Company, has played an optometrist, a physician and a school board president before juries.
For the most part, Breuler said he is instructed to play it straight–read in a way that will keep jurors’ interest.
“A lot of times, if you get a paralegal in there, they just read and they don’t know how to make it colorful to keep the jury awake,” Breuler said.
But Breuler said that on occasion he has been told in no uncertain terms to be as unlikable as possible.
“The lawyer told me that every time he gave me a certain vocal cue, he wanted me to behave in a certain negative manner,” Breuler recounted. “Then, during a break in the case, the lawyer from the other side asked me to put a certain different twist on the reading. I said, `I can’t. I’ve been hired by the other lawyer to read it in this manner.’
“If you’re a good actor, you can really sway people. A lot of people say acting and being a lawyer is a similar craft.”
And like the actors in a stage play, actors employed for court cases often don costumes that help them get into their roles.
In a 1997 federal trial, character actor Guy Barile wore a polyester plaid sport coat, polyester pants and a polo shirt opened at the neck and did not shave for days. He was cast as a private investigator who frequented topless bars but was not available to testify.
Even though Barile was instructed to stick to his script–a transcript of the witnesses deposition taken months before the trial–he was free to assume the characteristics of the witness he was playing.
Barile got rave reviews. Jurors and the judge were chuckling throughout, and the opposing counsel was looking very unhappy, Barile said.
“I was being a little surly at the time,” Barile said. “The opposing attorney was glaring at me, and I thought, `Oh boy, I’m going over the top. I’m going to get 30 days for overacting.’ “
But Barile’s performance apparently did little to tip the scales of justice. The lawyer who hired him lost the case.
