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Friday, April 15, 2011

Defending the Damned -- March 31, 2011

This week, I read the book Defending the Damned: Inside a Dark Corner of the Criminal Justice System, by Kevin Davis. It was sent to me earlier this month by a paralegal student who has taken an interest in my case. She was recommended the book by one of her teachers, who happens to be a former Cook County Public Defender, and more interestingly, my co-defendant Robert Faraci's counsel in the murder of Dean Fawcett. Apparently, the man wanted to give Laura an idea about what it was like to represent people facing the death penalty. Laura is considering a career as a criminal defense lawyer.

I appreciated being sent the book, but I did not initially plan on reading it. I have so many other books and magazines I have been trying to find time to read. I also have a few corporate reports I still have not read, and soon 1st quarter results and projections will be out. I read the back cover and intro and thought this book would be similar to the book I read called The Innocent Man. The Innocent Man was John Grisham's first work of nonfiction, and it was miserable to read the ugly realities of the criminal justice system I knew all too well about.

I flipped through the pages of Defending the Damned and noticed some parts had been highlighted. One caught my attention: "James 'Mad Dog' McKay," because he was the prosecutor in my case. I will never forget his unscrupulous and overly dramatic tactics used to gain my conviction. I was not surprised his nickname amongst lawyers was Mad Dog McKay, as it certainly fit the persona I witnessed in the courtroom. After I saw McKay's name and a few others I knew mentioned in the book, I changed my mind about reading it.

Defending the Damned was written by a Chicago Tribune reporter. The back cover describes the writing of Kevin Davis as a "powerful melding of courtroom drama and penetrating true crime journalism...a narrative nonfiction at its finest." Kevin Davis was better at writing nonfiction than John Grisham, but "riveting nonfiction at its finest" is certainly an exaggeration. I tend to believe the book will be interesting only to a limited audience.

The book is mainly about the public defenders who represent defendants facing the death penalty in Illinois' Cook County courtrooms. I was initially represented by two public defenders in the Capital Litigation Division. They were very good attorneys, and this book is a tribute to those who continue to work diligently at the office. While there are a number of bums who work at the Public Defenders' Office, most on Cook County's Murder Task Force are very good. If I had to do it all over again, I would not have allowed my parents to remove my public defenders Deborah Grohs and Dale Coventry. They were far superior than the attorneys retained for me from the firm of Jenner & Block.

Cook County's Murder Task Force was made up of 30 attorneys from the Public Defenders Office. These were usually the most competent and experienced lawyers. Not everyone could be promoted to this elite club. It took a special type of person to take on the most serious, high profile, and stressful cases. Furthermore, most of the people represented by these lawyers were obviously guilty, and were of the most loathsome character.

One chapter in the book is "How Can They Defend These People?" The public defenders usually represented low-lifes, gang bangers, and other miscreants from the ghettos of the inner city. They were poor, of little education, and of little aptitude or promise. All of the cases the M.T.F. took were murders, but many of them were of exceptional brutality and had heinous aggravating circumstances the public at large often found despicable. There were tortures, child killings, and homosexual, incestuous or pedophile rape-murders. This chapter opened up about a couple who choked their own one-year-old daughter when she would not quit crying. They then sliced the baby into pieces, battered the parts with flour, and fried them to feed to alley dogs.

The public defenders on the Murder Task Force were often not liked, despite the enormous effort and public service they performed. The chief of the group, Shelton Green, is quoted as saying you must have a "fuck you" attitude. It was important these lawyers were not timid, and were willing to take on figures of authority such as cops, prosecutors and judges, and also deal with public-social condemnation. The book says the attorneys are driven by various motivations. Some had a strong sense of justice, compassion, or left wing ideology, although Green would deny this. My direct appellate lawyer formerly worked as a P.D. and I sensed he was close to being a Marxist. My current lawyer is also liberal, and she came from the Cook County Public Defender's Office as well, before going into private practice. Although there may be some conservative criminal defense lawyers, by and large, it has been my experience they are from the left of the political spectrum.

Some lawyers at the Public Defender's Office were there for job security, and these are the worst kind to have represent you, even if you find your lawyer's politics terrible. These are the lawyers who just do their job, oftentimes at the bare minimum. The public defenders are unionized and they have great benefits; most senior attorneys are paid close to a hundred grand a year. As a juvenile, I had one of these PDs, and I would have been glad to trade him for a bleeding heart liberal who at least would have been motivated to help me.

The attorney who is the main focus of this book is Marijane Placek, and she seems motivated by a great sense of competition. She wants to win regardless of who her client is, or what she or he has done. She is also motivated by the thrill, drama, and intense nature of court proceedings where her clients face either the death penalty or a protracted death sentence in prison. Placek is described as a very flamboyant, tough, and tenacious public defender.

Defending the Damned describes a number of cases, but the one most focused on is the murder of Englewood Police Officer Eric Lee. In 2001, on the south side of Chicago, Eric Lee and several other cops were assisting in a drug surveillance and possible raid. When they noticed a drunk getting beat up in the alley, they ran to intervene. According to police, Aloysius Oliver reached into his pocket and shot Officer Lee twice in the head, instantly killing him. The murder was witnessed by a number of people and Oliver later gave a videotaped confession, but it was Marijane Placek's job to defend him and attempt to gain his acquittal. Initially, a reader may think his guilt was obvious, but certain circumstances, evidence, and arguments divulged in the book could cause some doubt.

One of the greatest improvements to the justice system in Illinois during the last decade is the videotaping of confessions or statements made by murder suspects. The police and prosecutor's office fought hard in opposition to the new law because they like to coerce suspects with threats, intimidation, and physical abuse to get them to talk. Many times they do not like it if a person "lawyers up" and demands their Miranda rights. When I was interrogated in 1993, police did not use a videotape. They did not obtain an audio tape, stenographer, written or signed statement from me. My interrogator did not even procure a signed waiver of Miranda, as was the rule at the Palatine Police Department. The reason for this, of course, was so I could be forced into making a confession or statement. When this did not occur, John Robertson could just falsify a police report. Suspected cop killer Oliver, however, was videotaped admitting to the murder, and also apologizing for it.

Despite the videotape, Public Defender Marijane Placek filed a suppression motion and argued Oliver's confession had been coerced. It is not unusual for defense attorneys to do this. A suppression motion was filed by my attorneys, and although they proved my claimed statements were done under violation of my Miranda rights, the judge denied it. I had numerous witnesses testify at the hearing on the motion, easily discrediting the crooked cop. I even had witnesses that heard me immediately demand a lawyer. None of this mattered, however. The judge was not going to throw out the prosecutor's main evidence and allow the person who was considered the perpetrator of the Palatine Brown's Chicken murders to be released. Even Dale Coventry told me on our first or second meeting that it was never going to happen. It would be political suicide for the judge.

Al Oliver was on videotape with bandages on his face. The bruises and scrapes were argued to be caused after his arrest and in an effort to "soften him up" for questioning. The police, of course, denied the accusations and testified the injuries were from struggles at the crime scene. I do not find it far-fetched that police would batter a suspect, especially a suspect in a police shooting. However, Oliver says on tape that he was not mistreated and was voluntarily giving his confession.

Interestingly, while reading this book, I came across a public defender's name with whom I had spoken. No, neither Dale Coventry nor Deborah Groh's names are mentioned and I believe they were no longer working on the Murder Task Force at the time this book was written. Allan Sincox, however, is mentioned several times, and was a public defender I was introduced to through a Stateville inmate. Sincox was an excellent lawyer who was especially knowledgeable about DNA evidence. Blood was found in my co-defendant Robert Faraci's car, and if I could identify the blood as the victim's, it would certainly be useful in proving that I did not lend him my car.

I called Allan Sincox a few times and spoke to him about the matter. He was gracious enough to accept my collect calls and tell me, in detail, how to raise the matter in court. He told me, however, the evidence could have long ago been destroyed, and I must first find out if the blood stain had been preserved.

During our talks, I learned that Sincox was one of the lawyers on Juan Luna's defense team. For a long time I have wanted to gain the police discovery in the Palatine Massacre files. There could be valuable evidence in there to help prove my innocence, or to give me investigative leads. He told me there was quite a lot of information about me, my investigation, and on the police on the Palatine Task Force who also worked on the Barrington murder, but the Palatine discovery was so massive, the information was put on a series of computer disks. Sincox could not send me the disks, but he said he would talk to my lawyer at that time and give it to him. However, Daniel Coyne was so slow, that by the time he got around to contacting Sincox, Juan Luna's case had been transferred to new lawyers at the Appellate Defenders' Office. They were not willing to give me the discovery, and I still have not been able to obtain it.

Another man I met who is mentioned in the book is Tom Melka. I first met the Cook County detainee on the bus while going to and from court. The man I did not know began talking to me about history, politics, and my case. He seemed to know more about my case than I did. It was odd for this stranger to be so fascinated about me. I had other people ask me for autographs before, but this man seemed to be a groupie of some sort. Years later, I met and came to know Tom better while at Pontiac C.C. I also learned his weird fascination.

In the book, Melka's case is told by his Cook County Public Defender, Woody Jordan. There was no question about Tom Melka's guilt. He had gone to a Christmas party in 1993, attended by his former girlfriend, and opened fire. Six people were shot and three people died, including his ex-girlfriend's new boyfriend. The task for Woody Jordan was to save Melka from capital punishment, despite the killing spree and crime scene photos of Christmas decorations splattered with blood and dead bodies. It was a difficult task, but not one unable to be overcome.

Tom was not your typical death penalty defendant. He had no previous criminal history, and was a student at the University of Illinois studying history and engineering. Tom was on the school's track team and won several awards. He immigrated from Czechoslovakia as a boy with his mother, and seemed to be successfully pursuing the American dream until succumbing to severe depression when his first love broke up with him. Melka's public defender presented a story to the jury that his client was truly a good man who just had a mental breakdown and snapped. His life was worth saving, and the jury, after deliberating for hours, agreed.

I seemed to think that Tom identified with me because he thought we were similar people. However, unlike Tom, I did not snap and commit a mass murder. I was innocent. At Pontiac, Tom tried to be my friend, but he was a nerd, and me and another jock made fun of him. Although Tom was a runner, he was not a true athlete like me and the person I often associated with. We wrestled, played football, and other sports. Running to us was not a valorous sport. And although I may have autism spectrum disorder, I was not an awkward geek or mentally disturbed person taking happy pills. We knew about Tom's case and ridiculed him for it. Tom would sometimes try to come back with an attack on my character for the Brown's chicken murders, but he was not witty. Despite all this, Tom was an educated and intelligent person I could have conversations with. Despite what he did, he is not a bad person, and I doubt he would ever commit another crime in his life. Jordy Nelson's argument to Tom's jury was well made, and I agree that his life was worth sparing.

The reason why I originally began to read Defending the Damned was to learn more about my trial prosecutor. I was pleased to learn that James McKay was assigned to help prosecute Oliver for the murder of Police Officer Lee. I knew McKay did not overstep the bounds of law in only my case. His bombastic, overzealous style was certain to lead to misconduct in other cases as well, and I was correct, if not necessarily in Oliver's trial.

In 1995, the same year James McKay prosecuted me in the murder of Dean Fawcett, he prosecuted Murray Blue in the murder of another police officer. Murray Blue was convicted and sentenced to death, but on appeal the Illinois Supreme Court overturned the verdict because of McKay's gross misconduct. The Court found the prosecution's methods highly overzealous and improper. He was described as playing on the emotions of jurors rather than making arguments based on the evidence, a strategy I personally was aware of. In the prosecution of Murray Blue, McKay placed a mannequin in the courtroom which was dressed in the dead officer's uniform, still stained with blood and brain matter. This antic was probably one of many just like at my trial. Not surprisingly, McKay stood by his actions, despite the rebuke by the state's highest court.

I was surprised to read that James McKay was purportedly held in high esteem by those in the Public Defenders Office. James "Mad Dog" McKay was thought of as the top prosecutor in Cook County. He is described as being a fierce fighter, driven, and unrelenting. One P.D. says McKay is a masterful Assistant States Attorney, and she respects him immensely. Even Marijane Placek is quoted as saying, although he is a sneaky prosecutor, she does not think he would lie. He is a warrior and she respects him as a lawyer because he is willing to show emotion and genuine passion. She goes on to say the cases that were sent back due to McKay's prosecutorial misconduct were not because he was hiding evidence or that they were innocent. It was "just that McKay went a bit too far."

Well, Marijane, I will tell you the prosecutor you seemingly respect so much is willing to lie, and even if those defendants where the courts remanded their convictions were guilty, what about those that were not sent back? I am innocent, and I know I was wrongfully convicted, due at least in part, to McKay's unscrupulous conduct. Although a defense attorney has no loyalty except to their client, a prosecutor has a duty to represent the people of the state and seek out truth and justice, not just his own ego or to boost his conviction rate. Possibly, it is better that America not have an adversarial system of criminal justice, like that which exists in England or other countries. I do not know how it serves society when the guilty go free, or even moreso when the innocent are convicted, and yet both occurred in my case.

The Chicago Sun-Times apparently described Oliver's murder trial as a "battle between two of Cook County's most aggressive, experienced, and colorful criminal lawyers. This seemed to remind me of my trial judge's statements just before the commencement of my trial. He compared it to a "boxing match", and may the best attorney win. Unfortunately, my lawyer from Jenner & Block was no match for James Mad Dog McKay. William Von Hoene practiced almost exclusively civil law, and although he was an intelligent, well educated and articulate partner from a prestigious law firm, he and his ridiculous trial strategy were eaten alive by Mad Dog McKay. Marijane Placek was a much better match for the prosecutor, however, there was only so much of an argument that can be made for a client who had a videotaped confession and several police officers as eye witnesses to the murder.

Al Oliver was convicted, but avoided the death penalty. To Marijane Placek, this was a victory, although I fail to see how. It seems public defenders on the Murder Task Force feel a heavy burden when a man's life is in their hands, and they will fight tooth and nail at a defendant's death sentence hearing to spare him capital punishment. However, natural life is a far worse punishment, and I would much prefer a quick execution than languishing in prison the rest of my life.

Recently, the Governor of Illinois signed a legislative bill ending the death penalty. I read newspaper articles that stated Pat Quinn abolished capital punishment mainly due to his faith. If people truly want to be compassionate, they will favor the death penalty over natural life and other similar harsh prison sentences. Democrats passed this bill during the lame duck session at the last hour just before they would need Republican support. They did this mostly thinking it will save the state some money. Now, because of this law, the strong defense and protections at trial and on appeal are no longer allowed defendants. Already, certain prosecutors are calling for a defunding of the Murder Task Force. Although most people who are represented by the MTF are low-lifes who are guilty, the State of Illinois needs to be certain those few who are innocent are not convicted and condemned to life in prison. Justice needs to be a priority when men and women face decades, or the rest of their lives, in prison.

Instead of abolishing the death penalty, the protections and rights of all class X felonies should be improved. Ironically, eliminating the death penalty will not save the state any money in the long run because all those who were to be executed will now be incarcerated for decades, requiring the state to pay for their medical, shelter, food, security, and other numerous expenses until their death. Those who were wrongfully convicted and ultimately exonerated will also sue the state for millions. If the legislature truly wanted to save costs and serve the interests of Illinois, they would improve the justice system, keep the death penalty, and eliminate sentences over 20 years.

Oliver now resides at Stateville, and he will most likely spend the rest of his life in maximum-security despite post trial developments. After his trial, federal prosecutors learned the cops in Officer Eric Lee's unit were corrupt. They had robbed drug dealers of narcotics, weapons and cash. They also worked with certain drug dealers and took out their competition. This, along with the fact that Eric Lee sustained two quick rapid fire shots to the head, an inch apart, purportedly from a drunk gangbanger who was some 15 feet away in the dark, using a crude weapon while running, calls suspicion into his conviction. At trial, a former military officer who now was a gun expert testified he could not shoot with such accuracy standing still and using both hands in daylight with such a weapon. Although the gun of Oliver is in custody, no ballistic evidence was ever found. Possibly, Oliver should gain a new trial where the defense can raise the possibility that Officer Lee was shot by a fellow police officer. However, with a natural life sentence, this is unlikely to occur. I can prove my innocence and still I remain in prison some 18 years later.