Courtroom 302 (60 page)

In April 1997 prosecutor Lawrence O’Reilly asked the grand jury to indict Caruso, Jasas, and Kwidzinski for attempted murder, aggravated battery, and hate crime. O’Reilly presented a single witness—Detective Turner. (The previous month’s grand jury had heard from seven witnesses regarding the Bridgeport case. But that was merely to get those witnesses on record. Prosecutors often bring witnesses to the grand jury to “lock in” their testimony, to make it harder for them to recant at trial.)

Detective Turner was succinct. He was in the grand jury room less than five minutes, judging from the five double-spaced pages of his testimony. He answered the
eighteen leading questions put to him by O’Reilly with a total of twenty-two words.

Had Turner’s investigation shown that Caruso, Jasas, and Kwidzinski were in the area of the beating? “Yes.” Had it shown that those three individuals struck Lenard Clark in the head and body with their fists and feet? “Yes.” Had it shown that they called Lenard a nigger during this beating? “That is correct.” Had it shown that they intended to kill him? “That is correct.”

Turner’s investigation had yielded considerable evidence that Caruso and
Jasas had beaten Lenard, and that Caruso had called Lenard a nigger. There was very little evidence that Kwidzinski had beaten Lenard, and none that he called him a nigger. But Turner had testified before the grand jury on many occasions, and he knew he didn’t have to draw such distinctions.

Had his investigation shown that these three individuals struck Clevan Nicholson in the head with a fist? “Yes.” Had it shown that they called Clevan a nigger? “Yes.” In fact, Turner’s investigation had shown that only one person struck Clevan and called him a nigger—Caruso.

O’Reilly concluded the examination by directing Turner to tell the grand jurors the basis of his testimony. Here Turner could have recapped the investigation, could have mentioned the witnesses interviewed and summarized what they said, so the jurors had something, other than his word, on which to base the crucial decision they were being asked to make. Instead, Turner simply said, “I am the investigating detective.”

Even prosecutor O’Reilly apparently wanted a bit more from Turner than that. He asked Turner if his testimony was based on the “statements of defendants and statements of witnesses?” Turner said it was.

Among the statements from witnesses were those of the four women who heard another individual—Guadagno—bragging about his role in the attack. There was also the sworn testimony from Simpson and Cutler before the previous month’s grand jury, implicating Caruso and Jasas—but not Kwidzinski. There was DeSantis’s statement against Kwidzinski—but the statements implicating DeSantis as well. Turner or O’Reilly could have alerted the jurors to all this so they could have made an informed decision. But an informed decision wasn’t being sought.

A grand juror had a question for Turner: “Was there an eyewitness who identified these three subjects?”

“There were several eyewitnesses,” Turner said.

“They identified these three people that you are charging?”

“Yes.”

The grand jurors’ diligent inquiry exhausted, Turner was excused. O’Reilly and the court reporter left the jurors alone to consider the proposed indictments. The foreperson soon summoned the prosecutor and the court reporter back into the room. “True Bill,” the foreperson said, and O’Reilly stamped the indictment.

FELONY CHARGES
exact a toll, often a heavy one, from defendants, even from those who eventually are cleared or are allowed to plead guilty to lesser charges and to avoid prison.

Kwidzinski had an attempted murder charge, and a possible prison term of six to thirty years, looming over him for a year and a half. He was vilified
in the papers and on radio talk shows. Like his codefendants, he heard rumors that African American gangs had contracts out on him and that his family’s home might be bombed. Even the “break” of a sentence he ultimately got required three hundred hours of community service.

His parents had a lawyer to pay and a son’s fate to agonize about. Kwidzinski’s parents are divorced. His father, a carpenter, also named Michael, “was the kind of guy who internalized everything,” Kwidzinski’s lawyer, Kevin Bolger, says. “He worried about everything about this case. He worried about what might happen to his son even if he won—how his life would be hurt just by him being accused of this in the news.”

On July 31, 1998, sixteen months after Kwidzinski was charged and two months before he pled guilty, the elder Kwidzinski suffered a fatal heart attack. He was forty-seven. “He worried himself to death about this case,” Bolger says.

BUT WHY WOULD
Kwidzinski plead guilty if he was innocent and if the evidence against him was so feeble?

For the same reason many defendants at 26th Street do. As Bolger explains, once a person is facing felony charges, the issue no longer is whether he did the crime; it’s how to limit the damage.

A wise defendant, with the help of his lawyer, thinks pragmatically, Bolger says. Kwidzinski’s choice, when he was offered the plea deal, was a guarantee of no prison, with only a misdemeanor conviction, versus a chance, albeit slim, of conviction and prison if he insisted on trial. Sometimes trials bring surprises—surprises that turn the flimsiest cases into convictions, says Bolger, a former prosecutor. “Police lie, witnesses lie. It’s a fact of life. So you get the best deal you can and you get out of there.”

Locallo allows that pleading guilty can sometimes be a “very attractive scenario,” even for the innocent, and that had he been in Kwidzinski’s shoes—considering a possible six to thirty versus misdemeanor probation—he “probably would have jumped at” the plea offer, innocent or not.

Prosecutors are apt to make pleading guilty an especially attractive scenario for the innocent. The weaker the case against a defendant, the more likely his acquittal if the case goes to trial—and therefore the better the bargain offered by the state in its attempt to get the conviction. Kwidzinski was offered a better deal than Jasas—misdemeanor probation instead of felony probation—because the evidence against him was thinner than it was against Jasas. Never mind that the evidence was thinner because he likely was innocent.

One measure designed to guard against the prospect of innocent defendants pleading guilty is the requirement that a “factual basis” for the plea
be cited during the formal plea. Judges aren’t obligated to scrutinize every bit of evidence against a defendant to be certain he’s guilty—guilty pleas wouldn’t save much time if judges had to do that. The “
factual basis” usually consists of a prosecutor’s brief summary of what the state’s key witnesses would say if called to testify. If such testimony would indeed support a guilty verdict, the judge will accept the plea.

But in their haste to bag a plea, judges at 26th Street sometimes accept a factual basis that’s devoid of facts.

That’s what happened when Kwidzinski and Jasas pled guilty to Locallo. For the factual basis, Mandeltort simply said the state and the defense were stipulating that Jasas and Kwidzinski had both been “legally responsible and accountable” for Caruso’s actions when Caruso punched Lenard and Clevan at 33rd and Shields. But
to be accountable for another offender’s actions in Illinois, a person must solicit, aid, or attempt to aid that offender. If there was a witness who could have testified as to how Kwidzinski or Jasas had solicited, aided, or tried to aid Caruso at 33rd and Shields, Mandeltort didn’t mention him. She didn’t mention any witnesses. While the factual basis doesn’t require much specificity, it
requires more than a prosecutor asserting, and the defense lawyers agreeing, that the facts would show the defendant was guilty. That would be a meaningless exercise, redundant of the defendant’s plea, and providing no protection against guilty pleas from the innocent.

But Locallo didn’t press Mandeltort for more. Instead he perfunctorily asked the lawyers for Kwidzinski and Jasas if they’d stipulate that “if those witnesses were called that they would testify in the manner as discussed?”—an odd question, considering that Mandeltort didn’t mention any witnesses testifying. Without hesitation, the defense lawyers stipulated. Locallo asked Jasas and Kwidzinski how they wanted to plead, and they said they wanted to plead guilty. Locallo immediately found their pleas to be “knowing and voluntary” and that there was a factual basis for them.

The factual basis “probably should have been more thorough,” Locallo conceded later, when I read the transcript of the pleas to him.

“
NOW
 … 
EVERYONE CHARGED
in this case has been held responsible and found guilty,” state’s attorney Richard Devine proclaimed at a press conference shortly after the pleas were formalized. “Make no mistake, none of this was easy,” Devine added, reminding reporters about the witness problems. “Many said it would not be surprising if the Cook County State’s Attorney’s Office got no conviction at all.… I am proud of our office’s total efforts in this case.”

Whenever a defendant pleads guilty, most parties are satisfied, even if
the defendant happens to be innocent. It’s a conviction for the prosecutor and a dispo for the judge, a fee for the private defense lawyer or one fewer case for the PD. The defendant is relieved he didn’t get something worse.

In the Bridgeport case, thanks to the press’s dutiful acceptance of the authorities’ party line about the culprits, all that most Chicagoans would understand about Kwidzinski was that he’d gotten away with something. For those few who knew otherwise, who were familiar with what really happened the night of the beating, a cynicism about the courts perhaps would be born or confirmed. They’d come away from the case thinking not that “nobody’s above the law,” but that certain things aren’t beneath the authorities.

Kwidzinski declined to talk at length to me about the case. But the morning he pled guilty, I talked with him briefly in the hallway outside the courtroom. I asked him what he learned from his experience. Referring to police and prosecutors, he said he learned “that these people will do anything to cover their asses.”

Shortly after Locallo took the pleas, I summarized for the judge the facts he hadn’t heard in the factual basis—the facts suggesting Kwidzinski’s innocence. “Interesting,” he said, without much interest.

Didn’t it concern him that he might have taken a guilty plea from someone who wasn’t? “Well, let’s just say he
was
guilty,” Locallo said. Then he laughed, and added, “I mean, he
pled
guilty.”

Epilogue: A Promising Future

LOCALLO WAS AT WORK
in his chambers one January afternoon in 1999 when two FBI agents stopped in and told him that someone might be trying to kill him.

An informant had reported this to the bureau, the agents said, and the FBI had also been notified of a conversation overheard in a Cook County Jail visiting area that seemed to corroborate the tip. Two mothers had been discussing their sons’ cases. When one mother said her son was in front of Judge Locallo, the other responded that she’d heard there was a hit out on that judge.

Locallo was given around-the-clock protection. Chicago police escorted him to and from work, and Cook County sheriffs watched him inside the courthouse. The guard was lifted after two weeks. “We killed the other side,” the judge said with a laugh. He said the FBI had gotten assurances from “upper-echelon” mobsters that he wasn’t in any danger.

Locallo said he assumed that if there really ever had been a contract out on him, it was because of the stiff sentence he gave Caruso. But it was his understanding that outfit bosses sanctioned hits only for matters related to their “business,” not for settling personal grievances. On the other hand, he felt sure that Mike Cutler, the witness in the Caruso case who was slain before trial, had been the victim of a hit. Locallo said the reputed threat on his life had worried his wife and kids more than him.

Early in 2000 the FBI contacted him again. The bureau had gotten another tip that he might be in jeopardy. The information was sketchier this time, and Locallo declined another special guard, asking only that police patrols near his house be increased.

•  •  •

THE MISSING WITNESS
in the Bridgeport case, Richard DeSantis, surfaced in November 1998, two months after the Caruso trial finished and one month after Jasas and Kwidzinski pled guilty. On a Friday morning in November he arrived at 26th Street with his parents and a lawyer and surrendered himself to authorities in a first-floor courtroom.

DeSantis, twenty, was charged with obstruction of justice. He faced one to three years. After he was taken to police headquarters to be fingerprinted, state’s attorney Richard Devine held a press conference at 26th Street. Devine said DeSantis had impaired an
“important prosecution in this community,” adding sternly, “You do not play around with the law and the criminal justice system.” Ellen Mandeltort, who handled the other Bridgeport cases and would be handling DeSantis’s, vowed to prosecute him “to the full extent of the law.”

What Mandeltort didn’t say was how hard that could be. The state needed to prove not only that DeSantis fled but also that his intent was to obstruct the prosecution in the Bridgeport case.

After numerous delays, during which media interest in the DeSantis case cooled, DeSantis pled guilty in June 2002 for a one-year sentence. This wasn’t a slap on the wrist, Mandeltort told me. “He wanted probation; we said no. He had to go to prison.”

But he spent no time there. With the standard day-for-day credit, DeSantis’s one-year sentence translated to six months; and although he was on bond for most of the three and a half years his case was pending, he had spent six months in jail. Anyone sentenced to prison must be processed into the Illinois Department of Corrections’ reception center in Joliet, even if they owe no time. So on June 21, 2002,
DeSantis was bused to Joliet. He got home later that day.

State’s attorney Devine called no press conference announcing the results of the DeSantis prosecution. He could hardly want more headlines about another light Bridgeport plea deal. Mandeltort and DeSantis’s lawyer managed to consummate the deal without the courthouse reporters noticing; it escaped mention in the dailies. The case slipped away quietly, as DeSantis had in 1998.