The Tylenol Mafia (50 page)

Mueller then hinted to DuPage County prosecutors that his client might be connected to the Nicarico case. The prosecutors were skeptical, so they gave Mueller some questions about the case that only Jeanine’s assailant could answer. Mueller immediately met with Dugan and then returned an hour later with the answers and asked if Dugan had gotten them right. There was a “very long, pregnant pause,” said Mueller, and then the prosecutors said, “Listen, we’ll get back to you.” But they never did.

In November 1985, Brian Dugan confessed to IDLE Commander Ed Cisowski that sometime after 2 p.m., February 25, 1983, he had knocked on the door at the Nicarico house. Jeanine answered the knock but refused to open the door. Dugan called out that he needed a screwdriver to fix his car, but Jeanine told him she would not give him a screwdriver or let him in. As she turned to go back downstairs to the family room, Dugan said he saw her through a window. She was wearing a pink nightshirt with Sleepy the Dwarf on it and the inscription “I’m sleepy.” Dugan told Cisowski, “When I saw her I had to have her.” Dugan kicked in the front door, abducted the little girl, wrapping her in a sheet, and took her out to a wooded area near the Illinois Prairie Path in Aurora where he raped her and then hit her twice on the back of her head with a tire iron.

Work records corroborated Dugan’s claim that he had missed work the day Jeanine was killed. He was able to take investigators to the Nicarico’s house and to the site where Jeanine’s body was found. Dugan’s lengthy criminal record included abductions in which he concealed his victims by wrapping them in sheets or blankets, and burglaries in which he gained entry by kicking in a door.

Cisowski, convinced that Dugan alone had killed Jeanine Nicarico, presented his findings to the State’s Attorney’s Office in DuPage County in December 1985. “It was, for whatever reason, argued, resented, and unaccepted,” said Cisowski. The Illinois Attorney General Office then put Cisowski under investigation, accusing him of feeding Dugan information about the Nicarico murder.

George Mueller, told the
Washington Post
, “I had the attitude from day one that the DuPage County people weren’t going to want to hear any of this because it made them look real bad. We were asking them to let two guys off of death row… without putting anyone there in their place.”

On January 19, 1988, the Illinois Supreme Court ruled that the DuPage County judge had erred in not granting separate trials, overturned the convictions, and ordered new trials for Cruz and Hernandez. In May of 1988, scientific analysis of hair samples taken from the blindfold around Jeanine’s eyes revealed two “abnormalities” in the sample - one described as “fairly rare” - that were consistent with Dugan’s hair, but not with that of Cruz or Hernandez. Lawyers working on the case said the tests exonerated Hernandez and Buckley, were inconclusive regarding Cruz, and implicated Dugan.

“The forensic evidence establishes Dugan’s guilt, the circumstantial evidence and the eyewitness evidence show his guilt, and now the scientific evidence points to Dugan,” said defense attorney, Michael
Metnick
. “You compare all that to the paucity of evidence against Hernandez and Cruz, and it’s bewildering how the State can pursue this case. It’s morally dishonest.”

The vision statement was once again the centerpiece of the case brought by State’s Attorney Robert
Kilander
in Cruz’s second trial in February 1990. Cruz was found guilty again. Hernandez’s second trial ended in a hung jury, but in a third trial, in May 1991, he was also found guilty again. Cruz was sentenced to death, and Hernandez was sentenced to 80 years in prison.

The verdict was appealed again; and again Cruz and Hernandez were granted new trials. In September 1995, the prosecutor’s own DNA expert said Dugan’s DNA precisely matched sperm found on Jeanine’s body. Still, the DuPage County prosecutors forged ahead. Cruz’s third trial, a bench trial before Judge Ronald Mehling, began on September 21, 1995. The prosecutor’s case fell apart before the defense even began to present their case. The final straw came when DuPage County Sheriff’s Lieutenant, James Montesano, took the stand. He admitted that he had lied, though perhaps unintentionally, about being at home on the night that detectives
Kurzawa
and
Vosburgh
said they had called him to seek advice about Cruz’s alleged vision statement. He had never discussed the vision statement with
Kurzawa
and
Vosburgh
after all. With that revelation, and numerous discrepancies in the testimony of other state witnesses, Judge Mehling realized that the vision statement had been completely made up.

Judge Mehling took a short break. Then, upon reconvening, he held up a picture of Jeanine Nicarico and proceeded to disparage the DuPage County Sheriff’s police officers and the case brought by DuPage County prosecutors. “Let’s look at what the evidence shows or does not show,” Mehling said. “And what troubles me in this case is what the evidence does not show… Is there any physical evidence in connection with this case, anything at all, that connects this hideous crime and connects Mr. Cruz?
Anything?
Fingerprints, blood spots, blood, DNA, hair, fibers, clothes, something left there, something taken from the home that he had?
Anything?
. . . There is none. There is absolutely none.”

“I as a judge, frankly… can’t recall so many witnesses that have testified one way at one time and then now testified a different way,” said Judge Mehling. “I am sure the defense and State realize what actually occurred here today. It was devastating. It was unique in the annals of criminal justice. Did Cruz ever make that dream statement? I don’t think I need to answer that, because I’m going to enter a judgment of not guilty, and he will be discharged today. Case closed,” declared Judge Mehling.

After 10 years on death row, Cruz walked out of the 18
^th
Circuit Court in DuPage County a free man. Six weeks later, Hernandez was also exonerated and released from prison. DuPage County, with the approval of State’s Attorney Joseph Birkett, paid $3.5 million in 1999 to settle a civil lawsuit brought by Cruz, Hernandez, and Buckley.

In November 2009, Birkett finally accepted Brian Dugan’s confession for the February 1983 rape and murder of Jeanine Nicarico. Dugan had first confessed to those crimes in November 1985. Birkett, while delivering a heated closing statement in the pre-sentencing hearing, turned to Dugan, pointed triumphantly and declared, “We got it right! We got it right, Brian! You raped and killed Jeanine Nicarico!”

Even though Joe Birkett had gotten it completely wrong for 26 years, he still claimed to have gotten it right. Prosecutors in DuPage County had gotten the Nicarico case wrong for almost as long as they have gotten the Tylenol murders case wrong.

In late 2008, while the prosecutors at the State’s Attorney’s Office in DuPage County were working on closing out the DuPage 7 scandal, they also secretly initiated new legal maneuvers in the Tylenol murders investigation in a reinvigorated effort that, if successful, would lead to the wrongful prosecution of James Lewis for the Tylenol murders. This objective was advanced with the help of one or more judges in the 18
^th
Circuit Court in DuPage County.

42

________

The warrant to search James and LeAnn Lewis’s apartment on February 4, 2009 had been granted by a judge in the 18
^th
Circuit Court in DuPage County. Nearly a year later, the reactivated Tylenol murders investigation had gone nowhere. Behind the scenes, however, prosecutors in DuPage County were working on getting a court order requiring the Lewises to submit fingerprints and DNA samples to the FBI. State’s Attorney, Joe Birkett, was leading that charge. Birkett had been hired in 1981 as an assistant state’s attorney in DuPage County. He was promoted to chief of the Major Crimes Unit in 1985, to deputy chief of the Criminal Division in 1986, and to chief of the Criminal Division in 1991. Birkett was elected state’s attorney in DuPage County in 1996, and then re-elected in 2000, 2004, and 2008.

In July 2009, prosecutors in DuPage County asked James Lewis to voluntarily provide DNA samples. Following the advice of his attorney, Lewis refused. Birkett then convinced a judge in the 18
^th
Circuit Court to grant a Certificate of Materiality requiring James and LeAnn Lewis to submit fingerprints and DNA samples.

On December 23, 2009, a summons was issued requiring James and LeAnn to appear before the Middlesex Superior Court. That summons came at the request of Middlesex District Attorney, Gerry Leone, who had kept Lewis in jail from August 2004 to July 2007 on trumped-up charges of rape, kidnapping, and assault; dropping all charges as the trial was about to begin. On January 6, 2010, a hearing was held in Middlesex Superior Court to determine if the Certificate of Materiality was enforceable.

Despite the requirement of secrecy, the authorities leaked to the press the details of the Certificate of Materiality and the summons. A reporter from
The
Somerville News
showed up at the Middlesex County courthouse to provide a play-by-play of the arrival of James and LeAnn Lewis: “The couple arrived in the front corridor of the courthouse at 8:45 a.m. and were briefly interviewed by one of our
Somerville News/Cambridge News Weekly
correspondents and later by FBI agents as well as by local authorities who escorted the couple to the hearing room.”

After a short hearing, the judge determined that the Certificate of Materiality, requiring the Lewises to submit
buccal
swabs and major case prints, was enforceable (
Buccal
swabs collect DNA samples by swabbing the inside of a person’s cheek, while major case prints are a set of prints taken from all fingers, thumbs, and palms). The Lewises immediately complied with the court order, submitting samples right after the hearing to the Boston FBI on behalf of the Chicago FBI and State’s Attorney Joe Birkett. According to Lewis, it was a rather amateurish affair.

“The FBI used the occasion as a training session for their greenest rookies,” said Lewis. “I have never seen such sloppy collection of fingerprints. I actually had to help one dude ink my hand and finger edges. Likewise, the DNA swabs were sometimes laid directly on unsterilized tabletops, and in one instance, dropped on the floor. Those swabs would have been thoroughly contaminated by the DNA of the dead skin cells and dandruff of FBI agents, which had fallen on the table tops and floors,” said Lewis. “I could be very wrong,” he added, “but I am convinced agents were only going through the motions in a futile case, fully knowing they would find nothing.”

Joe Birkett, when asked about the DNA hearing, said, “I will have no comment on that. I just won’t comment.” But someone from Birkett’s office
had
commented. In fact, several people had already leaked information about the grand jury proceedings and the court order to obtain the Lewises’ fingerprints and DNA samples.

Investigators working on the case who asked not to be identified, ironically because of grand jury secrecy laws, said the case was focused on returning state murder charges in Illinois. One unidentified official said the passage of time and the distance between Chicago, where the crimes had been committed, and Boston, where the prime suspect and his wife resided, complicated the investigation. These comments from unidentified officials served to persuade the public and potential jury pool that Lewis was indeed a legitimate suspect in the Tylenol murders case when in fact he was not.

Lewis’s attorney, David Meier, the former long-time head of the homicide unit for the Suffolk County, Massachusetts, District Attorney’s Office, chastised the officials who had leaked information in violation of the confidentiality requirements for grand jury proceedings. Meier told
The
Boston Globe
, “Proceedings such as that reported by the
Somerville News
, to the extent that they occur, are supposed to be secret precisely to protect the reputations of innocent people like James Lewis and his wife. To comment further would be irresponsible, unprofessional, and unethical.’’

Ostensibly, the Certificate of Materiality was issued so that DNA samples from the Lewises could be compared to a “DNA smudge” from evidence collected in 1982. Officials seemed to believe that this DNA smudge, stored for 27 years at the FBI lab in Washington D.C., held the genetic DNA of the Tylenol killer. Also stored in that same FBI lab, were the items containing James Lewis’s fingerprints and DNA that had been collected in Kansas City in 1981. A Kansas City police officer had flown to Washington D.C. on October 16, 1982 to turn those items over to the FBI.

James Lewis had been fingerprinted dozens of times between 1982 and 2007. He was fingerprinted in December 1982 when he was arrested in Manhattan, then again when he was booked into Manhattan’s Metropolitan Correctional Center, and yet again when he was booked into Chicago’s Metropolitan Correctional Center. Each time Lewis was transferred through or into a new prison, and each time he exited that prison, he was fingerprinted. Lewis was fingerprinted when he was formally booked at the federal penitentiaries in Leavenworth, Lewisburg, Terre Haute, El Reno, Talladega, and the Federal Prison Hospital in Springfield, Missouri. His parole officer in Boston also fingerprinted him.

More recently, when Lewis was arrested in 2004 on the bogus kidnapping and rape charges, he was fingerprinted in Middlesex County and again when he arrived at the Middlesex County Jail. While this charge was pending trial, Lewis was transferred to Essex County Jail and fingerprinted again. In each of these three instances, the booking officers captured computer-based, high-resolution digital fingerprints. Nevertheless, in January 2010, the FBI and the prosecutors at the State’s Attorney Office in DuPage County wanted more. These officials did not really need a new set of fingerprints from Lewis – they needed a new story that falsely implicated their patsy as a suspect in the Tylenol murders.