Courtroom 302 (53 page)

Locallo has a particular reason to be apprehensive: the fact that he is the judge in the Bridgeport case. While he enjoys the challenge of a heater and the attention and publicity it brings, he isn’t naïve about the risks. A misstep in a controversial case, particularly right before an election, can jeopardize a judge’s seat. With that in mind, he’d planned to dispose of the Caruso case long before the election. But several matters beyond his control, particularly the disappearance of witness Richard DeSantis, had forced him to postpone the case repeatedly, resulting in the trial of Caruso less than two months before the election.

The trial itself went well for Locallo. His name was in the papers often, his portrait was on the nightly news, and there was nothing but praise for the way he conducted the trial. The media looked with favor on the mixed verdict, the
Tribune
calling it “
perfectly reasonable,” the
Sun-Times
declaring that “
justice has been served.”

But Locallo isn’t out of the woods. Caruso still has to be sentenced, and his two codefendants still have to be tried.

The newspapers are calling on Locallo to throw the book at Caruso, to “
send a strong message throughout the city that hate crimes will not be tolerated in Chicago,” as the
Sun-Times
has said. Mayor Daley—who, more than any other person, can make or break a Cook County judge’s career—has confidently predicted that Caruso will be held “
fully accountable” when he’s sentenced.

The normal term for aggravated battery is two to five years. But if an aggravated battery shows “exceptionally brutal or heinous behavior indicative of wanton cruelty,” the judge can give an extended sentence of as much as ten years. Caruso also faces one to three years for his hate crime convictions.
Illinois law generally dictates concurrent sentences for separate convictions arising from the same offense. But the prosecutors contend that the hate crime committed against Clevan Nicholson, when he was punched at 33rd and Shields, and the stomping of Lenard Clark around the corner on Princeton, are two separate offenses—and that Locallo can therefore tack on three years for the crime against Clevan to the ten he can give for the aggravated battery against Lenard, for thirteen years in all. This argument for consecutive sentencing is a stretch, as the prosecutors themselves will later acknowledge to me, because under Illinois law offenses aren’t “separate” unless there’s a “
substantial change in the nature of the criminal objective.” But such stretching by prosecutors is standard procedure at sentencing time, particularly in a heater case. By asking for the absolute theoretical maximum, the prosecutors demonstrate to the public how seriously they consider a case. And like car dealers emphasizing a bloated sticker price, they put pressure on the judge for a result at the high end.

At the opposite extreme, Caruso, with no prior convictions, is eligible for probation or boot camp. Some staffers in 302 believe it would be hypocritical for Locallo to sentence Caruso to prison—among them Rhonda Schullo, the probation department’s liaison to the courtroom. Schullo points to how liberally the judge dispenses probation and boot camp, not infrequently offering those sentences even to violent offenders, so long as it’s their first conviction.

Not that Schullo or anyone else expects Locallo to keep Caruso out of
prison. Given how severely Clark was beaten, the case’s notoriety, and the imminent retention election, everyone understands that if Locallo sentences Caruso to probation or boot camp, he might as well look for a different job no matter how “highly qualified” the bar groups consider him. No one is betting on probation in the dollar-a-person pot on Caruso’s sentence that a lawyer is running in the courtroom. The bets have all been on a prison term of from four years to ten.

While the newspapers, the mayor, and the prosecutors are pressuring Locallo to sentence Caruso severely, the judge also is getting pushed in the opposite direction.

A few days before the sentencing Sam Adam Jr., who recently became a lawyer and who is assisting his father and Genson on the case, delivers to Locallo a packet of letters written on Caruso’s behalf. Locallo rarely gets any letters supporting a defendant before sentencing. For Caruso, there are 120.

The letters have been written by Caruso’s friends and relatives, and by public officials, ministers, community leaders, and union officials. Letter after letter implores the judge to show Caruso compassion. Several writers assert that Caruso is more likely to be rehabilitated if he’s kept out of prison. To read some of the letters, one would think Caruso had been convicted of shoplifting or joyriding. A Catholic priest observes that young people “will often disappoint us and do dumb things.” A neighbor of Caruso’s believes “the ordeal he has already been through in this matter has been correction and instruction enough.”

Other letters depict a different Caruso than the one portrayed at his trial. Caruso’s brother-in-law, Keith Vitale, tells Locallo of the time he and Caruso encountered a beggar outside a grocery store. “Frank, not having any money, removed his jacket and handed it to him, saying, ‘Stay warm, it’s cold outside.’ ”

“This boy is not what the press have insinuated and he needs a chance to prove it,” writes Frank Junior’s uncle and godfather, Bruno Caruso. Bruno Caruso tells Locallo that in his thirty-two years as a union leader, he’s always withstood political and media pressures and made decisions in the interests of those he represents. He asks Locallo to likewise not knuckle under to pressure. Then he reminds the judge that he represents thirty-five hundred county workers as president and business manager of the County, Municipal Employees, Supervisors, and Foremen union; and that he’s also vice president of the Chicago and Cook County Building and Construction Trades Council; as well as vice president of the Chicago Federation of Labor AFL/CIO; not to mention past president of the District Council of Chicago and vicinity, which represents twenty thousand laborers. Locallo also has gotten letters asking for compassion for Caruso from
the president and business manager of the Water Pipe Extension, Bureau of Engineering Laborers, the secretary-treasurer of labor, AFL-CIO, the president of the Iron Workers District Council of Chicago and vicinity, the business manager of the Heat and Frost Insulators, and the president of the State of Illinois Building and Construction Trades.

The clear implication from some of the letters is that Locallo could pay politically for sentencing Caruso stiffly. Most of the letters make that point obliquely—but not the one signed by a Tina Ariola. Ariola doesn’t say how she knows Caruso or where she lives. She just writes that she knows Locallo is up for retention, and that while those who want Caruso sentenced severely are vocal, those who favor a lighter sentence, as she does, predominate, “and we vote in blocs of high numbers.”

Reverend Floyd Davis, president of the Southside Branch of the NAACP, is among several prominent black ministers who beseech Locallo to show Caruso mercy. Davis thinks it would be a “great travesty” if Caruso were locked up for long. There’s also a petition in the packet with 795 signatures. “I am an African American,” the petition reads. “I would like to see race relations improved between African Americans and whites. This is why I’m signing my name to ask for leniency for Victor Jasas, Michael Kuidzinski [sic] and Frank Caruso.”

And Locallo gets this typewritten letter in the mail a few days before sentencing:

TO JUDGE LOCALLO:

“Fairly, be ye all of one mind, as having compassion one of another, live as brethren, be pitiful, be courteous, not rendering evil for evil, railing for railing, but on the contrary, blessing, knowing that ye are called to this, that you should inherit a blessing.” (1 Peter 3:8–9)

YOUR HONOR:

When I first saw my son beaten, I prayed for his life and for justice. Now that both his precious life has been spared and justice has come, my soul is somewhat at ease. With all things considered, today my prayer is that justice now be tempered with compassion.

Best regards,

MS. WANDA MCMURRAY
MOTHER OF LENARD CLARK

CARUSO
’
S UPCOMING SENTENCING
isn’t Locallo’s only problem. The cases of Caruso’s codefendants are also looming ominously.

Victor Jasas and Michael Kwidzinski are set to go on trial on October 19, four days after Caruso’s sentencing. Prosecutors have far weaker cases against those two defendants than they had against Caruso. The prosecutors know that if the cases actually go to trial, both defendants will probably be acquitted.

That would be a blow to the state’s attorney’s office. Never mind that it would be due to a lack of evidence and not a lack of effort by the prosecutors. In criminal cases such as this one, the public focuses on the bottom line. And the bottom line, if Jasas and Kwidzinski walk, will be that only one of the three white defendants charged with battering the black boy will have been convicted, and that one only on a lesser charge.

The prosecutors have decided to try to make the best of a bad situation—to try to extract pleas from Jasas and Kwidzinski after Caruso’s sentencing. They’ll have to lower the charges to make a deal enticing, of course. But if they can persuade Jasas and Kwidzinski to plead, at least their office can say it convicted all three of Lenard Clark’s attackers.

Surely there will be an outcry if, in order to get guilty pleas from Jasas and Kwidzinski, the prosecutors have to give them probation, but that’s better politically than going to trial and losing. State’s attorney Richard Devine isn’t up for reelection for another two years, so any fallout won’t be lethal to him. Mayor Daley is up for reelection in February, four months from now, against a black candidate, but his victory is certain. So the only person who might be in jeopardy if Jasas and Kwidzinski get probation is the judge who would approve such deals—the judge whose retention election is just weeks away.

There’s no easy solution to this dilemma for Locallo. He can’t postpone the trials of Jasas and Kwidzinski until after the election, because both have formally demanded trial, and the time the state has to prosecute them is expiring. He could simply refuse to approve the plea deals. But judges almost always okay such agreements, and he’d have no obvious justification for nixing these. And if he did reject the deals, thereby forcing the cases to trial, and Jasas and Kwidzinski were indeed acquitted, he might absorb all the blame. Yet his approval of plea deals for Jasas and Kwidzinski—particularly of probation deals—would be seen widely as an endorsement of leniency toward two of the Bridgeport attackers.

Caruso’s lawyer, Ed Genson, believes Locallo long ago recognized this scenario and conceived a way to offset the likely damage.

Genson had found it curious that on the day Caruso was convicted, September 18, Locallo had set sentencing for October 13—just twenty-five days after trial. Illinois law gives defendants thirty days after conviction to file their standard motion for a new trial. (The motion for a new trial is
almost invariably rejected, but a defendant needs to make it to preserve issues for appeal.) Sentencing rarely occurs before the motion for a new trial is heard. Judges nearly always are willing to delay sentencing even beyond thirty days—to give lawyers more time to gather witnesses in aggravation or mitigation, for example, or to allow defense lawyers to get a full trial transcript to aid their preparation of their motion for a new trial. When Genson asked Locallo to postpone sentencing for both of these reasons, Locallo did so grudgingly, pushing the sentencing back by just two days, to October 15. The trial transcript still wouldn’t be ready by then, but Locallo had said the defense lawyers would have to proceed without it.

Genson thinks he knows why Locallo is in such a hurry to sentence Caruso: he’s going to use that sentence to counterbalance the harm he’ll suffer if he has to approve probation deals for Jasas and Kwidzinski. If Locallo sentences Caruso severely, it’ll show voters he didn’t take the racial beating lightly. But sentencing Caruso stiffly won’t help Locallo in the November 3 election if he waits until after the election to do it. “I’ve been trying cases for thirty-three years,” Genson says. “I have never once had a judge order me to file post-trial motions in twenty-five days. What other reason could there be for him to do this?”

It’s the timing of the sentencing that bothers Genson; he doesn’t think the judge will actually give Caruso extra years for political reasons. “But the problem is, my clients believe it,” he says. That’s why he’d prefer sentencing be after the election.

The scenario Genson described was “completely wrong,” Locallo would say later. He’d had “no idea” that Jasas’s and Kwidzinski’s cases were headed for probation. Yes, he wanted to sentence Caruso quickly, but not because of fears about the election. He simply wanted to sentence Caruso before the trials of Jasas and Kwidzinski began so those two defendants could see what Caruso got and then “think about what they wanted to do”—in other words, reevaluate whether they wanted to go to trial.

Genson said that even if this truly was Locallo’s motive for sentencing Caruso quickly—and Genson didn’t believe it was—it was an inappropriate motivation. “Should you use your sentence for Defendant A to scare Defendants B and C into pleading guilty?”

Genson would also say that Locallo was so intent on sentencing Caruso in a hurry that the judge did something that astounded him. After Genson filed a written motion asking that the sentencing be postponed, Locallo visited him in his office downtown to ask him to withdraw the motion, according to Genson. “That’s the first time that happened to me in thirty-three years, too.”

Judges are prohibited from initiating ex parte communications (meetings
with only one of the parties) such as Genson describes. But when I ask Locallo, after the Caruso case is disposed of, about this alleged visit to Genson’s office, the judge will vehemently deny it ever happened. “He’s a liar,” Locallo says of Genson. “He’s an absolute liar. You can tell him that. I want you to call him up and say I think he is a fucking liar.… He is an absolute liar. That’s an absolute lie. Absolute lie.”