Prosecution Finds Itself in the Dock Over Murder-Rape Case : Frame-up involving fabricated evidence is alleged. Filing of charges astonishes lawyers.

It is a familiar dance, the stuff of countless courtroom confrontations. On one side of the aisle, defense attorneys talk of “frame-ups” and “political motivation.” On the other side, prosecutors invoke their “ethical duties” and “the wisdom of the jury.” Each side argues, each advocates with passion. In the end, after all the appeals, one side wins and the other loses. Who had truth and honor in their corner remains unclear, if not irrelevant. The lawyers move on, all having done their jobs, all having bowed to the dictates of an adversarial judicial system.

That’s not, however, how the game has played out in a decidedly uncommon Illinois case. After a DuPage County judge in late 1995 found former death row inmate Rolando Cruz not guilty of 10-year-old Jeanine Nicarico’s brutal rape-murder, a special prosecutor was appointed to look into “possible impropriety” in the handling of Cruz’s three trials. Now, a year later, a special grand jury has returned a 47-count indictment charging three highly respected former DuPage County prosecutors and four sheriff’s deputies with conspiracy and obstruction of justice. What often passes for zealous advocacy in an adversarial system this time is being called something else: A frame-up, involving fabricated evidence.

“In a free society there must always be a line between vigorous prosecution and official misconduct, between advocacy and unfairness,” declared special prosecutor William J. Kunkle in announcing the indictments on Dec. 12. “This indictment charges that line was crossed by seven people.”

Jaws dropped throughout the legal community at those words. Charging prosecutors for their conduct in criminal cases just doesn’t happen, no matter how many lines are crossed. Lawyers familiar with the current case can recall no precedent, anywhere. Some of them express dismay, others celebrate, but all are astonished.

They shouldn’t be, for this indictment only puts a formal stamp on what all sorts of people have been claiming for years about the Cruz case. Those who have raised their voices include not just defense attorneys but also an abundance of law enforcement figures. That’s what truly sets this one apart: Cops and prosecutors finally saying enough’s enough to their colleagues. That, and 18 grand jurors agreeing.

They had plenty of reasons, from dubious boot prints that implicated Cruz to reliable DNA results that didn’t. In between Cruz’s first and second trial, they even had another convict confess in rich detail to Nicarico’s murder. Most curious of all, they had Rolando Cruz’s infamous dream.

It was the devastating cornerstone of the state’s case. At Cruz’s first trial, Dets. Thomas Vosburgh and Dennis Kurzawa testified that just weeks after Jeanine’s 1983 murder, an agitated Cruz told them about a “vision” he’d had of how it happened--a vision that only the killer could know.

They informed their supervisor and lead prosecutor Thomas Knight about this vision, the detectives said. But upon Knight’s advice, they never wrote a report. Nor, when taping an interview with Cruz a day later, did they ask him to repeat his story. Nor did Knight raise the vision when interrogating Cruz before a grand jury one week later. Cruz’s dream, as it happened, didn’t again get mentioned for 18 months--until days before his first trial.

The hoo-has and flat-out denials from the defense were understandable. “Give them the benefit of the doubt,” Lawrence Marshall, Cruz’s chief lawyer, proposed four years ago. “Say they believed they had the guilty parties. Still, they created evidence to get them. There’s no doubt. A dream? Cruz tells you that, you bring in cameras, tapes, lights. It’s not believable that they did nothing. No way. It didn’t happen.”

More intriguing was the response in law enforcement quarters. It started with a DuPage County sheriff’s deputy named John Sam, who served with Vosburgh and Kurzawa on the Nicarico task force. “We worked together every day,” Sam began telling anyone who would listen. “Desks in one room, a ‘classroom’ every morning, sharing what’s going on. Every morning. Nothing about a vision was ever said to me.”

Sam eventually resigned in protest after telling his bosses they had the wrong man. Soon after, an Illinois State Police commander also felt moved to so advise prosecutors. Then a former state police director suggested in writing to a judge that Cruz was the victim of “small guys who lack guts or a moral compass.” One day, the Naperville police chief got thrown out of the DuPage sheriff’s office after making similar suggestions. Another day, the state’s attorney in adjoining Kane County traveled 40 miles by train to Chicago to urge the state attorney general to “confess error.” Finally, in the spring of 1992, Assistant Atty. Gen. Mary Kenney resigned rather than write an appellate brief against Cruz, explaining that the case reeked of “many instances of prosecutorial misconduct.”

Through it all, those responsible for putting Cruz away never wavered. Twice his convictions were overturned, twice the prosecutors vowed to press on.

“Where’s the evidence of misconduct?” asked Thomas Knight--by then returned to private practice--just after Mary Kenney resigned. “I’m there to do what’s right. I’m not there to win. I have to be morally convinced before I prosecute. I would not want to do anything but convict the right people.” Added James Ryan, then the DuPage County state’s attorney: “I have an ethical obligation to go forward after a grand jury found probable cause.” Roland Burris, then the state attorney general, put it most eloquently of all: “The system allows different roles for each player. Our job is to sustain what the jury ordered and the judge entered. It would be grounds to impeach me if I didn’t argue this case. The hope is we advocate, they advocate, and out of it comes justice. If we think otherwise, then we’re in the wrong business. You start doing that, the whole system breaks down.”

It wasn’t until November 1995 that the props collapsed about this particular world view. At Cruz’s third trial, a shaken Lt. James Montesano--supervisor of Dets. Vosburgh and Kurzaw--took the stand and admitted he had lied at a pretrial hearing. He did not, in truth, recall ever talking to his men about Cruz’s “vision statement,” even though those detectives claimed they’d called him. He had, in fact, been in Florida that week.

Two hours later, a furious Judge Ronald Mehling, after delivering a blistering 45-minute denunciation of the police and prosecution, ordered a directed verdict of not guilty and set Cruz free. Within days came appointment of Kunkle as special prosecutor.

At the time, few expected anything to result, for Kunkle, a former prosecutor familiar with many of his targets and witnesses, was known as a strong supporter--”apologist” in some quarters--of law enforcement types. So when word of the imminent indictments began to spread through the DuPage County courthouse a month ago, lawyers and judges could be seen huddled in hallways, whispering and shaking their heads with wonder. Days later came the announcement: Thomas Knight and his assistant at Cruz’s first trial had been indicted. So had the prosecutor at Cruz’s second trial, Robert Kilander, now a county judge. So had four sheriff’s deputies, including Vosburgh, Kurzawa and their supervisor Montesano.

Certain grand jurors, in truth, had wanted to indict others as well; privately, at least one recently claimed Kunkle prevented them from playing their full hand. But what the grand jury did deliver has been unsettling enough for those accustomed to a no-holds-barred battlefield. Expressions of dismay now rise even among criminal defense attorneys who have thrown many an elbow at the indicted prosecutors. Cries about “chilling effects” and “second-guessing” and “devastating impacts” fill the air. Even special prosecutor Kunkle at his press conference sounded as if he wanted to dilute the impact of what he’d wrought: “These charges are not an indictment of the DuPage County or Illinois or American system of justice. . . . This indictment is not evidence of guilt. . . . The named defendants are clothed with the presumption of innocent until proved guilty . . . “

On that last point, at least, lawyers on both sides of the aisle find common ground. Cruz’s team of defense attorneys in recent days has crowed a bit--”This should certainly chill the kind of conduct alleged in the indictments. I hope it freezes it solid”--yet they also have been at pains to remind that innocent people can get indicted, even convicted. Suggested one Cruz attorney: “Just ask Rolando about that.”