Center on Wrongful Convictions

No damages for Michael Evans, who spent two-thirds of his life behind bars for a crime he did not commit

What happened to Michael Evans, a Center on Wrongful Convictions client who languished behind bars for 27 years for a rape and murder that DNA proved he did not commit, was “a tragedy of epic proportions,” in the words of the U.S. Court of Appeals for the Seventh Circuit. Furthermore, there is no question, according to the Seventh Circuit, that Evans’s wrongful conviction resulted from “disturbing police malfeasance.”

Yet, in a split decision issued on January 23, 2008, the panel that made those pronouncements declined to reverse a federal jury verdict denying Evans’s claim against the Chicago Police Department and various officers for violations of his civil rights. Judges Terrence T. Evans and Diane S. Sykes concurred in the opinion. Judge Ann C. Williams filed a blistering dissent. Read the opinion.

The principal issue on appeal was whether U.S. District Court Judge David H. Coar, who presided over the jury trial of the 2006 civil rights case, gave the defendant officers what Judge Williams deemed a “bonanza” by allowing them to testify. Evans’s position was that their testimony should have been barred because, until after the close of discovery, they refused to sit for depositions, asserting their Fifth Amendment privilege against self-incrimination.

At the end of the trial, the jury awarded Evans nothing, rejecting the view that the wrongful conviction that cost Evans nearly three decades of his life was the result of deliberate police misconduct, as opposed to simple negligence. If the testimony of the officers had been excluded, Evans’s lawyers argued on appeal, the verdict might well have been different. The Seventh Circuit judges in the majority held however that allowing the testimony was within Judge Coar’s discretion. A petition for a rehearing en banc will be filed.

Paul Terry, Evans’s equally innocent co-defendant, filed a civil rights lawsuit substantively similar to Evans’s, but it has not been tried.

Now in their mid-40s, Evans and Terry were both 17 when the body of 9-year-old Lisa Cabassa was found on January 15, 1976, in an alley about two miles from her home on the south side of Chicago. The crime occurred less than 18 months before the Illinois General Assembly restored capital punishment following Furman v. Georgia. For Evans and Terry, the timing was fortunate because, in view of the heinous nature of the crime, they easily could have been executed long before the advent of the technology that saved them.

Evans and Terry languished in prison longer than any of the 200-plus wrongfully convicted persons who have been exonerated by DNA. The next longest-serving prisoner so exonerated was Rickey Johnson, who served 25 years for rape in Louisiana before he was exonerated on January 13.

On May 23, 2003, Cook County Circuit Court Judge Dennis Porter ordered the men’s release on recognizance bonds after DNA testing arranged by the Center on Wrongful Convictions established that neither could have been the source of seminal evidence recovered from the victim. Prosecutors delayed dropping the charges until August 23 after additional DNA testing confirmed the earlier results.

The crime

The victim and her brother, Ricky, 11, left their home at 8628 S. Saginaw Avenue in Chicago early the evening of January 14, 1976, to walk to the home of a friend a few blocks away. Lisa, however, turned back, complaining of a headache, while Ricky continued to the friend's home. When Ricky returned home alone about 8:25 p.m., the family realized that Lisa was missing. After searching the neighborhood, the children's mother, Carmen Cabassa, called police at about 9 p.m. She placed the time that Lisa and Ricky had left home at 6:30 p.m.

Lisa's body was found shortly before 3 a.m. the next day in an alley about two miles away. She had been sexually assaulted and strangled. Cook County Medical Examiner Robert Stein said the crime appeared to have involved more than one assailant, based solely on his assumption that Lisa must have struggled greatly due to the pain she was experiencing, and that therefore one assailant could not have both subdued her and assaulted her. The DNA evidence, 27 years later, gives no indication that more than one assailant was involved.

Purported witness emerges, implicating Evans

On January 19, four days after the child's body was discovered, Judith Januszewski, a 32-year-old secretary at a real estate office on East 87th Street near Saginaw Avenue, called a man who had advertised a $5,000 reward in the case. That man, Frank Martin, called police. Later that day, according to police reports, Januszewski told detectives that at “approximately 6:37 p.m.” on January 14, on the corner of 86th and Saginaw, she had seen two African-American youths struggling with a young white girl. Januszewski gave descriptions of the men, from which a police artist made composite sketches. Curiously, however, Januszewski did not identify the girl with whom the youths were struggling, although she had known Lisa Cabassa for more than a year.

Several weeks later, on February 24, Januszewski contacted police, saying she wanted “to clear the air.” She now reported that she had received veiled threats from a youth she knew as Earl Jones. She said she had seen Jones standing nearby as the two youths she previously had mentioned struggled with the little girl, whom she now identified as Lisa Cabassa. Januszewski also said, for the first time, that she also knew one of the youths involved in the struggle — Michael Evans. Police arrested Evans the next day and he was indicted for rape, kidnapping, and murder.

In the following days, police repeatedly interviewed Januszewski. At some point, they showed her a 1974 Bowen High School yearbook, asking her to look through it in case it contained photos of either of the other individuals involved in the struggle. Although Paul Terry's photo was in the yearbook, she failed to identify him. She did claim, however, that one student pictured resembled the young man she knew as Earl Jones. That student was questioned but released after Januszewski failed to identify him in a lineup.

How Terry was implicated

Terry did not become a suspect until Keith Jones, a 16-year-old friend of Evans, was questioned by police several months later. Jones, in a statement he would soon disavow as a coerced fabrication, implicated Evans and a man named James Davis. In addition, Jones said that one of composite sketches prepared from the descriptions Januszewski had provided in January looked somewhat like another neighborhood youth — Paul Terry.

In November 1976, Januszewski identified Terry in a lineup as the second youth she had seen struggling with Lisa Cabassa. At some point, she also identified James Davis in a lineup as the man she previously had known as Earl Jones. Based solely on the lineup identifications, the Cook County State's Attorney's Office obtained indictments charging Terry and Davis with rape, kidnapping, and murder.

Time of the crime shifts

Meanwhile, Evans waived a jury and went to trial before Cook County Circuit Court Judge Earl E. Strayhorn. By now, the prosecution had disclosed Januszewski's work timecard, which showed that she had been at work until 8 p.m. the day of the Cabassa abduction — a fact that could not be reconciled with Carmen Cabassa's statement that her daughter had left home around 6:30 p.m. The problem was addressed simply by changing the time. (Twenty-seven years later, the victim's parents acknowledged in interviews with Chicago Tribune reporters Maurice Possley and Steve Mills the family's original account of the timing “was changed to fit Januszewski's account.”) Despite apparent misgivings about Januszewski's credibility, Strayhorn found Evans guilty. Before sentencing, however, it was disclosed that the prosecution had failed to disclose that Januszewski had received money from the State's Attorney's Office — ostensibly for relocation. As a result, Strayhorn vacated the conviction, and Evans's case was consolidated for retrial with the Terry and Davis cases.

The joint trial of Evans and Terry

Before the trial, prosecutors dropped the charges against Davis because Keith Jones recanted. Evans and Terry, neither of whom had a criminal past, went on trial before a jury and Cook County Circuit Court Judge Frank W. Barbaro in April 1977 trial. Defense lawyers pressed the time issue on cross examination of Januszewski, who responded by denying that she had ever stated to anyone that the abduction occurred at 6:37 p.m. She said a Chicago police detective “made that up out of his own head.”

Some jurors evidently doubted Januszewski. After six hours of deliberation over two days, with the intervening night in sequestration, the jury sent a note to the judge, Frank W. Barbaro, saying, “We are deadlocked unalterably. What shall we do?” Barbaro responded, “It is your duty to continue to deliberate.” After further deliberation, the jury sent a second note saying, “In almost four additional hours of deliberations we cannot reach a unanimous decision.” The defense moved for a mistrial, but Barbaro denied the motion and responded to the jury, “Continue to deliberate.” Little more than an hour later, the jury found Evans and Terry guilty on all counts. Barbaro sentenced each to concurrent terms of 200 to 400 years for murder, 75 to 150 years for aggravated kidnapping, 75 to 150 years for rape, and 50 to 100 years for deviate sexual assault.

Appellate Court affirms conviction

In December 1979, the First District Illinois Appellate Court affirmed the conviction and sentences, holding that “Januszewski's testimony, if believed, was not so improbable, doubtful, or vague as to raise a reasonable doubt as to defendants' guilt,” People v. Evans, 80 Ill. App. 3d 444 (1979). The unanimous decision, written by Judge Robert Downing, would have ended the case, and Evans and Terry would have spent the rest of their lives in prison, except for a confluence of serendipitous circumstances.

Trial prosecutor urges re-examination of the case

Most fortuitously, the lead prosecutor in the case had been Thomas M. Breen, who after leaving the State's Attorney's Office had become a prominent member of the Chicago defense bar. Breen represented Gary Dotson, who in 1989 became the first prisoner in the nation, and probably the world, to be exonerated by DNA, and Rolando Cruz, who in 1995 was exonerated, in part by DNA.

In 1994, while working on the Cruz case with Northwestern University Professor of Law Lawrence C. Marshall, now legal director of the Center on Wrongful Convictions, Breen confided that he had begun to have doubts about the prosecution 17 years earlier of Michael Evans and Paul Terry. When the Center on Wrongful Convictions was established in 1999, Marshall asked Karen Daniel, Center staff counsel, to look into the possibility of obtaining DNA testing of seminal evidence in the case.

Current prosecutors resist DNA testing

Under an Illinois statute that Marshall had been instrumental in drafting and persuading the General Assembly to pass the previous year, DNA testing was mandated in cases in which the result would have “the scientific potential to produce new, noncumulative evidence materially relevant” to claims of actual innocence. See § 725 ILCS 5/116-3. However, the State's Attorney's Office opposed the testing under the guise of what defense attorneys have come to call “the unindicted co-ejaculator theory” — that even if DNA testing excludes convicted defendants as sources of biological material, it is possible that the material came from an unknown additional party to the crime. In this case, the State specifically noted that a third man, James Davis, had been implicated in the crime by Januszewski.

In 2001, however, Center on Wrongful Convictions staff counsel Karen Daniel and Jeffrey Urdangen, assisted by Center students Ann Jerris and Anne Hunter, persuaded the Circuit Court to order the testing. The results, obtained in September 2002, excluded Evans, Terry, and James Davis as sources of seminal evidence recovered in the case. Prosecutors responded by seeking additional testing, ostensibly on the chance of identifying an unindicted co-ejaculator. The procedures dragged the case out, keeping Evans and Terry in custody, until the State’s Attorney’s Office grudgingly agreed on May 23, 2003, that Evans and Terry were entitled at least to a new trial, even though one was highly unlikely given the evidence. Prosecutors then left Evans and Terry in limbo for three more months before finally dropping the charges on August 22.

Judge Porter orders immediate release

After informing Judge Porter that the State's Attorney's Office was dropping its opposition to a new trial, Assistant State's Attorney Mark Ertler argued that a substantial cash bond should be set, vowing that the prosecution would retry Evans and Terry, despite the fact that they have no specific theory as to how the offenses occurred, no physical evidence linking Evans or Terry to the crime, and no idea as to the identity of the man who left his semen in Lisa's body. Judge Porter, however, ordered their release on their own recognizance. Two hours later, after the Cook County Sheriff's Office processed the required paperwork, Evans and Terry walked out of his courtroom — free for the first time in more than 27 years.