Courtroom 302 (59 page)

And then that presumption of guilt was confirmed by Caruso’s conviction and Jasas’s and Kwidzinski’s guilty pleas. Those attacking the plea deals and those defending them agreed on one point: Jasas and Kwidzinski got away with something. No one in the media entertained the possibility that the lack of evidence against Jasas and Kwidzinski might be due to their actual innocence. After all, they admitted their guilt—they pled guilty.

But at 26th Street, pleading guilty doesn’t mean you are.

The evidence suggests that Jasas was indeed a second attacker. But it also suggests that Kwidzinski wasn’t the third.

Caruso and Jasas were implicated by three of their friends: Thomas Simpson (the forgetful witness at Caruso’s trial), Mike Cutler (the witness who was slain), and Richard DeSantis (the missing witness).

Kwidzinski, on the other hand, wasn’t implicated by Simpson in either his statement at the police station or his grand jury testimony. And while Cutler implicated Kwidzinski in the statement he signed at the police station—a statement written up by a prosecutor—in his grand jury testimony Cutler incriminated only Caruso and Jasas.

DeSantis implicated Kwidzinski in his police station statement. But DeSantis had a motive for fingering others: so he wouldn’t get charged himself. He’d certainly been a prime suspect.
Two anonymous tipsters identified him as one of the attackers. William Jaramillo—the Hispanic youth who was with Lenard and Clevan at 33rd and Shields—identified DeSantis as one of the youths who joined Caruso and Jasas in chasing Lenard toward Princeton. And when detectives first asked DeSantis where he was on the night of the attack, he lied, saying he was at his girlfriend’s. Only after the detectives confronted him with the fact that this alibi didn’t check out did DeSantis admit to being on the scene. Eight hours later he signed the statement implicating Caruso, Jasas, and Kwidzinski.

The day after he signed his statement, DeSantis was summoned before the grand jury. By this time he had a lawyer with him. And when DeSantis was asked about the beating,
he invoked his Fifth Amendment protection against self-incrimination.

Kwidzinski, questioned repeatedly at the station over a period of more than twenty-four hours, with no lawyer assisting him, consistently maintained
he was on the scene but that he didn’t play a role in the attack. The notes of one detective suggest that Kwidzinski was reluctant to implicate any of his friends, but that he ultimately acknowledged seeing Caruso initiate the attack at 33rd and Shields, and seeing Caruso and Jasas chasing Lenard down 33rd. He said he didn’t see what happened around the corner on Princeton.

Detectives and prosecutors were under pressure to lodge charges quickly—Mayor Daley had assured reporters shortly after the story of the beating broke that police were handling the matter and would be making arrests. “The heat [pressure] was a factor,” allowed Stanley Turner, the lead detective. Turner also allowed that the case against Kwidzinski rested solely on DeSantis and therefore was weaker than the cases against Caruso and Jasas. Nevertheless, prosecutors decided to charge Kwidzinski along with Caruso and Jasas. The press was alerted, the three defendants were marched into court, bonds were set, and Mayor Daley proclaimed that the culprits had been nabbed.

That Kwidzinski was charged as the third attacker must have been good news for another Bridgeport youth, sixteen-year-old James Guadagno. Guadagno had also been a suspect. An anonymous tipster implicated him, as did Jasas, who told detectives he saw Guadagno and another youth beat Lenard on Princeton. In addition, a cousin of Caruso’s acknowledged driving Caruso from the scene of the beating—along with another youth named “Jimmie Dua,” according to a detective’s notes. Detectives wanted to question Guadagno, but they were unable to locate him the first two days of their investigation. The detectives weren’t sure at this point how many attackers there were. The report they wrote after Caruso, Jasas, and Kwidzinski were charged seemed to suggest they believed Guadagno might have been a fourth attacker: it listed him as “wanted” and specified that the case would still be open “pending further arrests.”

A day after Caruso, Jasas, and Kwidzinski were charged, Guadagno walked into the detectives’ office, accompanied by his mother and a lawyer. Detective Turner says that when he asked Guadagno about the attack, Guadagno “broke down and started crying, and he nearly jumped into his mother’s arms. And at that point the lawyer cut the conversation. He said, ‘If you want to talk to him again, get a warrant for his arrest.’ We didn’t have enough to support a warrant.”

But a day later the detectives got a new lead further implicating Guadagno. A tip led them to four young women—Bridgeport natives who were then college freshmen—who were at a party on the night of the attack along with Caruso, Jasas, Kwidzinski, Simpson, Cutler, and Guadagno. Questioned separately by detectives, all four women said they heard
Guadagno bragging about the role he played in the beating of a black boy near Armour Square Park earlier that evening. “I had this nigger on the ground, and I was kicking him in the head,” Guadagno said, according to one of the women. Another woman said she heard him say, “I stomped this nigger in the head. I took care of the neighborhood.” All four women repeated their accounts of what they heard to the grand jury.

One of the women, Guadagno’s former girlfriend, Dina Short, told the grand jury she had a separate conversation with Guadagno at the party. She said Guadagno told her he was riding in Caruso’s cousin’s car, and on Princeton “
he seen Frankie Caruso stomping on the black boy’s head, and Victor Jasas was kicking him. He jumped out of the car and ran over to his friends, kicked the kid like once or twice in the butt, and then saw the kid was unconscious. And Frankie was stomping on his head, and he pulled Frankie off of him.”

Two of the women told detectives that Kwidzinski, too, talked about the beating at the party—but only to say that he was there but didn’t participate.

Detective Turner told me Guadagno wasn’t charged because the statements of the four young women were inadmissible hearsay. But their statements were, in fact, admissible. Statements about another person’s voluntary, self-incriminating remarks meet a hearsay exemption—they’re considered more reliable since it’s not in the speaker’s interests to lie when making them.

Genson had tried to call Guadagno as a witness during Caruso’s trial. But in a hearing outside the presence of the jury, Guadagno had taken the stand and invoked the Fifth. When Thomas Simpson had invoked the Fifth, Locallo had found “no basis” for his assertion that his testimony could have been self-incriminating. But Guadagno had such a basis, Locallo ruled, in declining to force the youth to testify. Genson then sought to have two of the women who’d overheard Guadagno’s incriminating remarks at the party testify about those remarks. Locallo decided he’d allow that testimony. But he also ruled that if Genson called the two women, the state would be allowed to call Dina Short in response, to testify that Guadagno had implicated not only himself but also Caruso in his remarks about the beating. So Genson had decided not to call the two women.

Guadagno told me he had “not a clue” why anyone would claim they’d heard him say he’d beaten a black kid on the night of the attack. Then he declined to answer further questions, saying, “I definitely don’t need to be in any book.”

Guadagno may have been difficult to prosecute, given that the only other witness to implicate him directly was Jasas, and one defendant can’t be forced to testify against another.

The more significant question is not why Guadagno wasn’t charged, but why the charges against Kwidzinski weren’t dropped—if not immediately after the authorities talked with these four women, then at least after detectives located Jeffrey Gordon three weeks later. Gordon, the neighbor who broke up the beating on Princeton, told detectives there were only three attackers. (His vague description of the three—white, young, short, with short hair—fits Caruso, Jasas, and Kwidzinski but also Guadagno, who’s a dead ringer for Caruso.)

But by the time the detectives learned there were only three attackers, the state’s attorney’s office was in a tight corner. Prosecutors had already declared they’d charged the three offenders. When the defense lawyers claimed the wrong people were charged in a rush to justice, the state’s attorney’s office dismissed this as the usual defense propaganda. To then cut loose Kwidzinski, and perhaps charge Guadagno in his stead, would have generated endless assertions by Genson, and by Jasas’s lawyers, that if the authorities were wrong about one of the attackers, they probably were wrong about the other two as well. Dropping the charges against Kwidzinski thus would have required immense political courage.

The day Caruso was sentenced, I told Detective Turner that sources close to Caruso and Jasas had conceded to me after Caruso’s trial that those two were guilty of the attack—but that these sources also insisted that the third assailant was not Kwidzinski. “Kwidzinski wasn’t as bad as the others,” Turner allowed, “but he was an asshole, too. They were all assholes.” But was Kwidzinski one of the offenders? I asked. Turner shrugged and said simply, “He was there.”

THE GRAND JURY
had functioned in its usual way in April 1997, when it was asked to consider the indictments of Caruso, Jasas, and Kwidzinski.

The Founding Fathers imported the grand jury system from England as a check on the power of prosecutors and other public officials. Under the Fifth Amendment, felony charges lodged by authorities can stand only if they are approved by a panel from the community. They can be approved only if the panel finds “probable cause” that the accused committed the charged offense—and the definition of probable cause is up to the panel. This Fifth Amendment protection applies only to federal cases. In most states, prosecutors can either seek an indictment from the grand jury or a finding of probable cause from a judge in a preliminary hearing. In Cook County,
nearly half the felony cases result from grand jury indictment.

In America’s early years, the willingness of grand juries to reject indictments earned them the label the “
People’s Panel.” But
as criminal law grew more complex, grand jurors became increasingly dependent on the prosecutors
who brought proposed indictments to them. Soon it was the prosecutors who were running the show, with the grand jurors serving as their willing subordinates. Already in 1870 dissatisfaction with the grand jury led to a push to abolish it at that year’s Illinois Constitutional Convention. The grand jury had
“ceased to be any protection to the interests or the rights of the people,” one delegate said; another derided it as “utterly useless … an engine of oppression and persecution.” The delegates decided to eliminate grand jury indictment in misdemeanor cases, but they kept it for felony charges. A half century later, in his 1922 study of the Cook County Jail and courts, George Kirchwey noted that in larger cities the grand jury was
“believed to have become little more than a machine for registering the will of the State’s Attorney,” and that the record in Cook County “gives one the uneasy feeling that the Grand Jury conceives its function to be the finding of indictments instead of the protection of those unjustly accused.” Little seems to have changed in that regard; in the years 2000 through 2003, Cook County grand juries
approved 1,769 indictments for every indictment they rejected.

It’s the same story elsewhere. In Arizona, a prosecutor said in 1974 that if grand jurors were given a
napkin, they’d sign it; the chief judge of the New York Court of Appeals observed in 1985 that a good prosecutor could persuade a grand jury to indict a
ham sandwich. Some
legal scholars have said the state’s control could be diminished by limiting the prosecutor’s role to proposing indictments and questioning witnesses, and having an independent lawyer available to consult with the jurors. This suggestion has had as much success as other suggestions for decreasing a prosecutor’s power.

Grand jurors in Cook County serve for a month. Their sixteen members, chosen by the presiding judge from the available pool, swear to “diligently inquire” into the matters brought before them.

The grand jury room at 26th Street, on the courthouse’s fourth floor, has an air of neglected dignity. The walls are still decorated with the building’s original Egyptian frieze, but some of the paint is chipping away. The three long crescent tables at which the jurors sit are a handsome dark oak, but they’re cracked and scarred. The ancient, grimy fan bolted to one wall is still used some afternoons when the air-conditioning proves insufficient. Witnesses sit front and center, facing the jurors, the prosecutor who does the questioning, and the court reporter. In most cases there is only a single witness—a police officer who summarizes the evidence, often in five minutes or less. The police officer is excused, and the prosecutor and the court reporter leave the room to let the panel deliberate and vote in secrecy. Deliberations are sometimes dispensed with in favor of an immediate vote
conducted by hand. A simple majority suffices for an indictment. The foreperson summons the prosecutor and court reporter back into the room and announces a “True Bill.” The prosecutor presses a rubber stamp on an ink pad and stamps the indictment. The “True Bill” stamp in the grand jury room is usually damp, the “No Bill” stamp bone dry. The prosecutor brings in the next police officer for the next case.

Taped to the wall next to the entrance to the grand jury room is a memo from the supervisor of the grand jury for the state’s attorney’s office, James Tansey. Dated September 1997, the tattered message was still on the wall in 2004. It gives a pep talk to prosecutors who work with the grand jury. “The grand jury serves as the root of the state’s attorney’s family tree,” the memo says. “When the silence of the courtroom is broken with the six-letter word ‘Guilty,’ we can all partake of the fruit. We planted the seed and nourished the charge.”

Marcelle Porter, a south-side nurse, served on the March 1997 grand jury. Porter, then sixty-eight, described the prosecutor working with her grand jury as “pushy.” She was disappointed by how easily the jurors, herself included, were persuaded to do his bidding. She said she’s normally independent minded and that on several occasions during her month of service, when the evidence in a case seemed weak, she simply didn’t vote. But other times, even when she wasn’t sure a case merited indictment, she found her hand going up with everyone else’s. “You feel like an extension of the prosecutor,” she said.