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Wednesday, September 7, 2011

The Appeal of a Double Homicide Convict -- Aug. 31, 2011

Not long after I was moved to cell house C, a man a few cells down from me asked if I would read his appeal and give my opinion. Interestingly, he wanted my criticism, and to respond as if I was the prosecutor. Most men in prison want you to tell them how their appellate issues are wonderful, and that they will soon be going home. These people are always disappointed when I review their cases because I am brutally honest and have an unappreciated ability to pick apart and find fault in most everything. I am a cynical person, and even much of my humor is dry satire. Thus, I was looking forward to reviewing his case, however, I had many other priorities and did not have time to read his appeal until yesterday.

The direct appeal that I read and made comprehensive notes, comments, and opinions of belonged to Steve Zirko. Steve was convicted and sent to Stateville with natural life plus 30 years in 2009. It was not long after his placement in the same cell house as me that I began to talk to him. Coincidentally, he was assigned a cell two cells down from me in B House, and after my return to general population, we were again almost neighbors in a different cell house. I also was able to talk to him from time to time in the Roundhouse because he was a law clerk. The law library workers on occasion were sent to F House because they were in Segregation or could not go to the law library. When inmates in Kickout were finally allowed access to the library, I was also able to see Steve, but not very often. It was difficult making the library list in F House.

Steve Zirko is a squat 50-year-old man with an almost Mediterranean complexion. He looks like he would be Italian, and his last name led me to believe so until he told me otherwise. Steve keeps his hair very short or bald, and that is rightfully so. Except for some hair implants, he only has a horseshoe shaped growth of dark brown hair. Despite being much older than me, he is one of the few people I talk to. He is a good acquaintance because, unlike most people at Stateville, he is intelligent and educated. He also shares some of the same values as I have. In prison, I am surrounded by mostly ignorant, obnoxious, gang members from the ghetto.

Yesterday, I was very tired from working out and running laps on the prison's large south yard. I was also in a lot of pain, due not only to my lower back injury, but also some sharp pain in my shoulder and neck which I have been dealing with for a few weeks. At 36, I often feel like 56, and after bathing in my sink, I took a short nap. Steve's appeal had been put on my table by a cell house worker while I was sleeping. When I got up, I read his note which instructed me to read his appeal as if I were the prosecutor. It was going to be difficult judging the merits of his appeal without having read his trial transcripts. However, I was not going to read the vast pretrial and trial proceedings. His trial was a month long. I would have to depend on the Statement of Fact written by his attorney. Despite this, I was prepared to eviscerate the arguments put forth in his appeal. Steve had actually offered me some payment, but I was more than happy to crush any hopes he had of going home. Yes, misery loves company.

The week before, I had spoken to Steve about the basics of his case. However, now I had a much better understanding of what occurred. In 2004, his wife, Mary Lacey, and his mother-in-law, Margaret Ballog, were killed in Lacey's home in Glenview, Illinois. Both women were shot three times, but Lacey was also brutally stabbed 48 times. I thought only someone with hatred and who personally knew her would commit such a murder. Considering Steve and his wife were separated and still had animosity towards each other, there was no question he would be an immediate suspect. In my notes, I made a joke about how he could not be a more obvious suspect and he should have had an alibi.

The police, after finding the bodies, immediately went to pay Steve a visit. Steve had a few restraining orders against him. After he hit his wife, the court had him undergo anger management treatment. In my notes, I wrote: "apparently these did not help." I also made fun of his attorney's inference that police precipitously focused on him as a suspect. Lacey was already with another man of questionable character. However, the other man had an air-tight alibi. Before police start looking for the "one armed man," it made sense that they went to Steve. Other evidence would also make Steve the obvious suspect.

In prison, you rarely get to learn about a man and what he was like before coming here. Even when people tell you about themselves, I always have a high degree of skepticism. Although a defense attorney is going to want to portray their client in a good light, there are a number of undisputed facts I could learn about Steve from his appeal. For example, I learned that Steve taught band and music to high school and college students. He also was an entertainer on cruise ships playing the piano. This fact I already knew, and Steve likes to talk about the times he visited port cities in South America and in the Caribbean. I always questioned his ability to play the piano professionally, however, because of his short, fat fingers. I have told him on a number of occasions, "Those look like the hands of a bruiser and not an elegant piano player." "How do you even reach all those keys with precision?" I would ask him. He told me, "You would be surprised." He said his hands move very quickly and nimbly on the piano. I still insisted they would look better with brass knuckles busting someones teeth out.

While reading the Statement of Fact, which is a summation by the lawyer before arguments are given in an appeal, I knew why I never heard Steve talk about his wife and two sons. Most prisoners like to talk about their kids, if not their wife or girlfriend, who have usually left them. Steve not only had two sons with Mary Lacey, but had become a father to the two children she already had before marrying him. I was told that all of these children disliked or hated him. They probably went to live with his wife's family after the murders and never had any contact with him since. Ironic, that they were the cause of most of the friction, and if Steve killed the mother, now he has lost them completely.

While taking my notes, Steve came by my cell. He had been let out to take a shower. There was a grin on his face because I assume he knew I was being very blunt, critical, and derogatory in my writings. I told him he may want to take a Klonapin before he read what I was writing. He said, "No. I can take it. That is precisely what I wanted." He did not want anyone "blowing smoke up his ass". He knew I would tell him exactly what I thought and be very meticulous. I told him again that my opinion could only be of limited value without reading the transcripts from his trial. To help me get a better understanding, I asked him a few questions before a guard was at his cell door wanting him to lock up.

The first issue an appellate lawyer lists is usually the strongest issue the defense puts forth in a request for a new trial. The issue at the forefront of Steve's appeal was "Is it error for the court to submit to the jury instructions on the law of accountability?" Having been convicted on a theory of accountability, I was very knowledgeable about the issue. I knew that court instructions must be supported by some evidence and also must fit with the prosecution's argument.

Nowhere, according to Steve's attorney, did the prosecutor tell the jury he was guilty based on another person's actions. The prosecutor argued that he was the killer. The only way I saw evidence that could infer guilt by a theory of accountability was the testimony of solicitation of murder. In the law of accountability is the word "solicits," and Steve was not only charged and convicted of two counts of 1st degree murder but solicitation of murder. However, courts have ruled that when the prosecutor seeks a conviction based on accountability, they must identify the actual killer. In my case, it was my co-defendant, Robert Faraci (Faraci was acquitted). In Zirko's case, there was no one. Therefore, he had a decent possibility of a reversal on this issue, and in my notes to him I stated so.

Steve's second issue was that the court erred in allowing highly prejudicial evidence of his prior Internet searches. Like the Casey Anthony trial, prosecutors seized the defendant's computer as well as his new girlfriend's, and submitted to the jury Internet searches made in the past to prove their case. In Steve's case, they were even more incriminating and there was no one else who could have made those searches. Steve's girlfriend specifically testified that she did not make the searches. The searches were for "hire a hit man," "mercenaries," "guns," "how to destroy evidence," and many other very incriminating inquiries. Steve's attorney argued that these searches were a fraction of thousands made and just showed what type of fictional reading he liked. She also wrote that the most recent inquiry was made a month before the murder.

Courts are supposed to weigh the prejudicial impact that evidence would have compared to its probative value. For example, in my case, my collection of right-wing political books, newspapers, and writings as well as my VCR tapes of war footage was irrelevant to the murder. The state only sought to introduce them to tarnish my character. However, in Steve's case, the admission of these searches was relevant, and corroborated much of the prosecution's case. Despite the brutal murders that occurred, I mocked Steve in my notes for some of the ridiculous searches he made in his quest to hire a hit man. His attorney's attempts to make it sound like the searches were meaningless was almost laughable.

The third issue raised was the court's failure to suppress his statements to the police. This is an issue normally I can sympathize with due to not only my Miranda rights being violated, but being struck and held incommunicado for two days. When my interrogator could not get an incriminating statement from me, he simply made one up. He told my jury that I admitted my roommate told me he was going to kill the victim, and I lent him my car. Because the judge did not suppress the officer's claims and my trial attorney failed to contest this testimony, I was found guilty of 1st degree murder under a theory of accountability. I was sentenced to natural life without the possibility of parole, and I will most likely die in prison due to the lies of the police officer. Steve and I may share the same sentence minus 30 years he could never humanly do, however, we share little else.

Steve does not dispute what he told police, only that what he said should not have been used against him. Also, unlike me, Steve was never brought to a secret location so police could intimidate, threaten, and hit him without a lawyer ever being able to intervene. In fact, before Steve was taken to the police station, his parents were able to call his lawyer and tell him to go to the Glenview Police Department. Steve was not in any way abused nor does he deny being Mirandized. His lawyer, however, argues because Steve told his parents in front of the arresting police officers to call his lawyer, police should have never spoken to him. Also, his lawyer was apparently not allowed to see Steve for a period of time once he was at the station.

The reason Steve wants his statements suppressed is because he lied to the police about an alibi. This lie was used by the prosecutor to help convince the jury he was guilty of murder. "Why would an innocent man give a false alibi?" the prosecutor asked his jury. I can think of reasons why an innocent person would lie about his whereabouts when he is arrested for a double homicide. However, I do not know if the defense was able to demonstrate if his Miranda rights were violated and if the statements were prejudicial enough to deserve a new trial. In my writings to Steve, I told him I thought it was an important issue that should be raised, but I tend to think it will not be persuasive to an appellate court.

Issues number 4, and especially 6, I thought were totally without merit. These issues argued that the state did not prove their case of murder and solicitation of murder beyond a reasonable doubt. Whenever a defendant raises the insufficiency of evidence, the appellate court looks at the evidence in the light most favorable to the state. It is extremely difficult to win this argument unless there is virtually no evidence. In Steve's case, not one, not two or even three, but seven people testified that he asked them to kill his wife or find someone who would. Steve's attorney tries to discredit a couple of them, including calling one of them a "psychopathic drug addict." I can believe a few people may be lying about a defendant, but not seven. One of them was his chiropractor, and he actually went to the police a month before the murder. Steve's attorney says the chiropractor apparently was not too credible because no arrest was made. However, police at that time did not have the other six peoples' statements or two dead bodies. They also did not have Internet searches for a hit man.

The 5th issue was intriguing to me. In it, the appellate lawyer argues Steve's trial attorneys, Barry Spector and Stephen Richards, were ineffective for joining the murder and solicitation charges. There was an abundance of evidence that Steve solicited someone to kill his wife. However, there is almost nothing to show he committed the murder. If his attorneys had been able to defend him against the charges separately without evidence of one crime being used to convict him in the other, there is a very good possibility he would have been acquitted of murder, and thereby only face a possibility of 30 years of which he would only have to serve 85%, or 25 years. I was not able to watch Steve's trial like the Casey Anthony trial, but from what I read, absent the solicitation evidence, there was no case to convict him of the murders.

Issue #7 was that the trial judge did not completely comply with all of Illinois' Supreme Court rules as outlined in 431(b). According to the law, the judge must tell the jury the presumption of innocence, the defendant did not have to present any evidence including his own testimony, and the jury could not hold it against him. The judge is also then supposed to ask juror members if they understand and agree with these principles. According to a few cases the appellate lawyer cited, in a closely balanced case where there is a violation of Sup. Ct. rule 431(b), a defendant must be granted a new trial. I am not so sure how strong this technicality is, nor if the reviewing court will think the evidence was closely balanced. My reviewing court said the evidence was not closely balanced and there was much less evidence against me. However, my trial attorneys basically abdicated and told my jury the interrogating officer's testimony was truthful.

Steve's last issue was meritorious, but had little value. He filed a post trial motion telling the judge that his attorneys were ineffective for a number of reasons. According to law, the judge must address the motion, but his judge never addressed it. The appellate court may remand the case back to the original trial judge. However, he is most certain to deny it, and that is the end of Steve's direct appeal. The State Supreme Court is not going to look at his case.

During my reading and note taking yesterday, I was surprisingly not distracted much until a cell house worker came to my bars. He is the black man with a large mole on his chin who has bothered me before about investments. He wanted to know what I thought of the company Green Mountain Coffee Roast. He also wanted me to help him understand the literature and statistics in their 2010 annual report. I did not have time to indulge him. However, I did tell him that the coffee company's profits have grown enormously in the last couple of years, but its price has grown even more. It is now trading at 90 times trailing earnings. If he thought growth would continue at the same pace in the years to come for the single serve coffee distributor in the face of a recessionary or stagnant economy, he needs to quit talking to me and call his broker.

At chow time, I took a break from my work. I did not care to eat the sloppy soy that was being served for dinner, but to ask Steve some questions about his case. One question was how he managed to get the death penalty off the table before jury selection. In a death penalty case, every potential juror is asked if they are willing to render capital punishment. If not, they are kicked out of the jury pool. A number of my potential jurors were taken out because of this, and I felt prejudiced because those jurors were probably better for the defense. Steve said there was a talk between the judge, defense attorneys, and prosecutors outside of his presence, and the prosecution agreed to take it off the table.

Another question I had for Steve was if he paid for his wife's breast implants. According to the appeal, her body was cut so that her intestines and even breast implants came out. He told me she got the "boob job" done after they separated, along with some other cosmetic surgeries. Apparently, when she was back on the market again, she had to make some renovations to attract suitors. The man she finally met, though, Steve thought, was lowly.

Although I finished reading the appeal last night, I did not give it back to him until today when I went out on a visit. When I handed it to him with my writings, I said, "Here's the prosecutor's off-the-record thoughts of your appeal." He glanced at my 5 pages of tiny print before I left. On my return, I stopped at his cell again, and he began to tell me he was innocent. I told him to save it for his next jury if he ever gets a new trial. I do not know if he is innocent or guilty, but I did not care. Almost everyone at Stateville is guilty, and most have murder cases. I did not judge Steve solely on his conviction for a double homicide in Glenview, but who he was as a person in totality.

2 comments:

  1. Whoa! Hard to believe this guy is innocent! I can certainly see why the cops fingered him, but it's outrageous they didn't question or investigate those other people too.

    What kind of people search the Internet for those key words? Sure is incriminating, to say the least.

    ReplyDelete
  2. Dear Paul,
    It was certainly nice of you to read Steve's appeal and analyze it for him. It took your mind off the terrible state of the economy and the stock market!

    A Reader of your Blog

    ReplyDelete

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