Seven Men Out
A panel discussion on the problems innocent prisoners encounter in reentering free society
Sponsored by the Illinois Death Penalty Education Project and the Center on Wrongful Convictions at the Northwestern University School of Law
WEDNESDAY, MARCH 13, 2002 Panelists and Case Summaries:
KENNETH ADAMS
Kenneth Adams is one of the group of men known as the Ford Heights Four who were convicted in Cook County of the 1978 abduction and murder of Lawrence Lionberg and Carol Schmal and the rape of Ms. Schmal.
Adams and his codefendants became suspects in the case after Cook County Sheriff's Police received a tip from Charles McCraney, a man who lived near the murder scene. McCraney ultimately placed the defendants there at about the time the murders were believed to have occurred.
Based on McCraney's claim, police questioned Paula Gray, a 17-year-old woman who was borderline mentally retarded. After being questioned over two nights in motels, she testified before a grand jury that she had been present when Adams and three other men — Verneal Jimerson, Willie Rainge, and Dennis Williams — repeatedly raped Ms. Schmal and then shot both victims to death. Her confession contained only two purported facts that were not known to the police, and both of those assertions ultimately were shown to have been false.
Gray soon recanted her statement and thereupon was charged both with the murders and with perjury. She was tried simultaneously with Adams, Rainge, and Williams in the same courtroom before the same judge, but by a separate jury. The charges against Jimerson could not be pursued at that time because without Gray's testimony there was no evidence against him. McCraney had not placed Jimerson at the scene.
The convictions of the remaining defendants rested primarily on McCraney's testimony and the testimony of an informant, David Jackson, who falsely claimed to have heard Williams and Rainge talking in jail about how they committed the crime. Forensic evidence — later shown to have been false in one regard and unreliable in another — also was presented by the prosecution. Adams was sentenced to 75 years, Rainge to life, Williams to death, and Gray to 50 years for the murders and 10 years, concurrently, for perjury.
After Rainge and Williams, but not Adams, won new trials in 1982 based on ineffective assistance of counsel, Gray agreed to testify against them and Jimerson in exchange for her release from prison. Jimerson was then charged, convicted, and sentenced to death.
Although McCraney originally had not placed Jimerson at the scene, he did so at the trial. Rainge and Williams then were retried and convicted based on the false testimony of Gray and McCraney. Rainge was sentenced to life without parole, Williams to death. Jimerson's conviction was reversed in 1995 based on prosecutorial misconduct; the prosecutors had remained silent when Gray falsely testified that she had been promised nothing in exchange for her cooperation with the prosecution.
Now lacking credible evidence against Jimerson, the Cook County State's Attorney's Office agreed to DNA testing. Meanwhile, Northwestern University journalism students working under the direction of Professor David Protess found a police file which showed that within a week of the crime a witness had told the Sheriff's Police they had arrested the wrong men. The witness said he knew who committed the crime because he heard shots, saw four men run away from the scene, and the next day saw
them selling items taken from the robbery of the victims. As a result of police and prosecutorial misconduct, however, the report had not been turned over to the defense as required under Brady v. Maryland prior to trial.
One of the men identified by that witness was by then dead, but the other three ultimately confessed. Then the results of the DNA testing conclusively established the innocence of the Ford Heights Four and corroborated the confessions.
The Ford Heights Four then filed civil rights suits against the Cook County Sheriff's Police. Through the discovery process in that litigation, it became apparent that Gray's false confession had been coerced. The police misconduct prompted Cook County to settle the men's claims for $36 million, the largest such settlement in U.S. history. In 2001, Gray's conviction was thrown out, and she currently has a civil rights claim pending against Cook County.
DAVID DOWALIBY
David Dowaliby was convicted in Cook County of the murder of his adopted daughter, 7-year-old Jaclyn Dowaliby, solely on the basis of testimony by a man with a history of mental illness who claimed to have seen someone with a nose structure resembling Dowaliby's on the night the victim disappeared near where her body was found five days later. The witness, Everett Mann, who previously had been diagnosed as suffering from a bipolar disorder, made the purported identification from a distance of 75 yards in an unlighted parking lot on a moonless night.
Dowaliby and his wife, Cynthia, biological mother of the victim by a prior marriage, both had been charged with the crime, based not only on Mann's testimony but also on what proved to be an erroneous assumption about the forensic evidence: Police and prosecutors incorrectly assumed that a window of the Dowaliby home through which the Dowalibys claimed an intruder had entered to abduct Jaclyn had been broken from the inside. That seemed to make sense because there was more glass outside than inside, but forensic analysis ultimately established, incontrovertibly, that the window had been broken from the outside.
Illinois State Police and the FBI also failed to investigate the principal alternative suspect in the case, a mentally ill relative, who offered a dubious alibi that witnesses who eventually came forward disputed.
At the Dowalibys' 1990 jury trial, Cook County Circuit Court Judge Richard A. Neville granted a directed verdict of not guilty in Cynthia Dowaliby's case because there was no credible evidence against her. Neville allowed her husband's case to go to the jury, even though the only difference between the evidence against the two was the so-called “nose witness” testimony.
In 1991, the Illinois Appellate Court reversed David Dowaliby's conviction outright, that the evidence against him had been no more probative than that against his wife.
The appellate court also held that assistant state's attorney committed reversible error during closing argument and that Neville had erred in allowing jurors to see gory crime scene and autopsy photographs.
GARY GAUGER
Gary Gauger was convicted and sentenced to death in McHenry County for the murder of his parents, Morris and Ruth Gauger, whose bodies were found on their McHenry County farm, where they lived with their 41-year-old son.
Gauger was taken into custody immediately and, after an all-night interrogation, made statements that police and prosecutors claimed constituted a confession. He denied that he had confessed, claiming he had made the statements only hypothetically after his interrogators persuaded him it was possible he had committed the double murder during an alcoholic blackout. The statements were not electronically recorded, and deputies made no contemporaneous record of them. Despite an exhaustive search of the farm, no physical evidence was found linking Gauger to the murders. He was indicted nonetheless.
At trial, the jury heard the police version of Gauger's allegedly inculpatory statements: He admitted coming upon his parents from behind, pulling their heads back by their hair, and cutting their throats. The only evidence introduced to corroborate the alleged statements was the testimony of a pathologist, Dr. Lawrence Blum, who performed autopsies on the bodies and a state forensic scientist who examined loose hairs found near Ruth's body. Blum told the jury that the wounds on the victims' bodies were consistent with the possibility that the killer had come upon them from behind and cut their throats, although he acknowledged it was equally possible that the Gaugers had been bludgeoned before their throats were cut.
In 1996, the Illinois Appellate Court unanimously reversed and remanded the case for a new trial, holding that the trial judge had erred in failing to grant a motion to suppress Gauger's statements. In an unpublished opinion, the court held that the statements were the fruit of an arrest made without probable cause and should not have been admitted at the trial. Gauger was released on bond.
The next year, federal officials investigating a conspiracy involving a Wisconsin motorcycle gang known as the Outlaws discovered evidence that the gang had committed the Gauger murders. As a result, the U.S. Attorney's Office in Milwaukee obtained indictments against two members of the gang for 34 acts of racketeering, including the murder of the Gaugers. One of the Outlaws, James Schneider, pleaded guilty to acts relating to the murders in 1998. The other, Randall E. Miller, was convicted of the charges in U.S. District Court in Milwaukee in June of 2000.
RONALD JONES
Ronald Jones was arrested and charged with rape and murder seven months after a 28-year-old mother of three was found slain in a motel room on the south side of Chicago. The charges were predicated solely on a signed confession that Jones accused Chicago police detectives of beating out of him.
Although the confession was dubious — it asserted that the victim was a prostitute when in fact she had no history of prostitution — Cook County Circuit Court Judge John E. Morrissey held it admissible at Jones's 1989 trial. No physical evidence linked Jones to the crime, but the signed confession said Jones had ejaculated; the state claimed that semen recovered from the victim was too small a quantity to test. Jones was convicted by a jury and sentenced to death by Morrissey.
In 1994, Jones's lawyer, Richard Cunningham, asked Morrissey to authorize DNA testing with technology that had not existed at the time of Jones's trial. Morrissey denied the request and, when reminded that prosecutors originally had contended Jones was the source of the semen recovered from the victim, snidely responded, “Save arguments like that for the press. They love it. I don't.”
The Illinois Supreme Court reversed Morrissey, ordering the testing. In 1977, the DNA results established conclusively that Jones was not the source of the semen recovered from the victim. Even then, prosecutors refused to abandon the case. They stalled Jones's release until, facing a retrial, they finally dropped all charges against him on May 17, 1999.
STEVEN LINSCOTT
Steven Linscott was wrongfully convicted of the murder of a young neighbor woman in Oak Park based on prosecutorial and police misconduct and misleading forensic testimony.
After the body of the victim, Karen Ann Phillips, was found, Linscott approached Oak Park police at the urging of friends and told them about a dream he had about a similar murder. Although there were relatively few and hardly amazing similarities between the dream and the actual crime, authorities called Linscott's statement a confession and charged him with murder and rape.
At trial, Assistant Cook County State's Attorneys John E. Morrissey and Jay C. Magnuson told the jury that biological material recovered from the scene had to have come from an O secretor, a relatively small population group that included Linscott. In fact, the forensic evidence established that the material in question could have come not only from an O secretor but also a non-secretor of any blood type — a group that included a sizeable majority of the population. A state forensic witness, Mohammad Tahir, also had testified that several hairs found on the victim's body, bed, and carpet were consistent with hair samples provided by Linscott. In recent years, microscopic hair comparisons have been shown to be useless.
After the Illinois Appellate Court reversed the conviction based on prosecutorial misconduct — saying that Morrissey and Magnuson had “invented” the incuplatory blood evidence — the Cook County State's Attorney's Office agreed to DNA testing, which led to Linscott's exoneration in 1992.
DELBERT TIBBS
Delbert Tibbs was convicted and sentenced to death in Florida for the 1974 murder of a 27-year-old man and the rape of the man's 16-year-old female companion. Tibbs, an African American student at the Chicago Theological Seminary, had taken a semester off to see the country and was hitchiking through the South when he was arrested and charged with the crime.
The victims, who were Caucasian, had been hitchhiking near Fort Myers when they were picked up by the killer, an African American. The female victim was left for dead on a roadside, but she survived and provided a description of the killer. A few days later, Tibbs was hitchhiking near Leesburg, 220 miles north of Fort Myers, when he was stopped by police. Because he did not fit the description provided by the surviving victim, he was released, but not before police photographed him. The photo was sent to Fort Meyers, where the surviving victim positively identified him.
Despite documents establishing that Tibbs had been in Daytona Beach at the time of the crime, despite his substantial variance from the victim's original description, and despite a total lack of other evidence, an all-white jury convicted Tibbs, and he was sentenced him to death. It was fortunate that Tibbs was a college-educated man with many friends in the north, who rallied to his cause, establishing a defense fund.
Two years after the conviction, the Florida Supreme Court overturned the conviction on the basis of insufficient evidence. For the next five years, the state sought to overcome double jeopardy issues and retry Tibbs. In 1982, the Florida Supreme Court agreed to permit a retrial, but by this time the original prosecutor, James Long, had become convinced that Tibbs in fact had been framed by police and the victim. Long said the case had been “tainted from the beginning and the investigators knew it.” At that point, Long's successor dropped the case against Tibbs.
DARBY TILLIS
Darby Tillis and Perry Cobb were convicted in Cook County and sentenced to death for the murder and armed robbery of the owner and an employee of a hotdog stand on the north side of Chicago.
They were arrested three weeks after the crime, when a witness, Phyllis Santini, went to the police with a story implicating them. Both men professed their innocence, but police found a watch taken from one of the victims in Cobb's room. Cobb claimed he bought the watch for $10 from Johnny Brown, Santini's boyfriend.
It took three jury trials for prosecutors to convict them. The first two ended in hung juries. The third resulted in convictions and death sentences, but the Illinois Supreme Court reversed the case based on judicial error.
After the reversal, Michael Falconer, a recent law school graduate working for the federal Organized Crime Strike Force in Chicago, read an article about the case in a legal publication. The article quoted the testimony of Santini, whom Falconer happened to know. Before enrolling in law school, he had taken a summer job in a factory, where she also worked. One day she had told him that she and her boyfriend — Johnny Brown — had robbed a restaurant and shot someone.
Upon reading the article, Falconer immediately contacted Tillis and Cobb's defense lawyers. When the case came up for retrial, Falconer was working as an assistant state's attorney in neighboring Lake County. Cook County State's Attorney Richard M. Daley called his Lake County counterpart in an effort to prevent Falconer from testifying, but Falconer resisted the pressure and provided testimony leading to the acquittal of Tillis and Cobb in 1987. In 2001, Governor George Ryan granted the men pardons based on innocence.
Moderator:
ROB WARDEN
Rob Warden is the Executive Director of the Center on Wrongful Convictions at the Northwestern University School of Law.
