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Prosecutors' Acts Are Put on Trial In Illinois Case

When Rolando Cruz, twice convicted in one of Illinois's most high-profile murder cases, was acquitted and walked free 15 months ago after spending more than a decade on death row, local prosecutors fumed.

But, in a dramatic turn of events, three former DuPage County prosecutors who helped put Mr. Cruz in prison now face trial themselves - for allegedly conspiring to use false testimony to convict an innocent man. So do four DuPage deputy sheriffs, who are accused of lying under oath about key events and withholding vital evidence.

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The seriousness of the Illinois case - prosecutors rarely face criminal charges for the way they prosecute others - has shocked local observers and fueled a nationwide debate over the extent of US prosecutorial misconduct and how to check it.

In an era when the public is increasingly suspicious of the integrity of the criminal justice system - witness the O.J. Simpson case - evidence is growing that such distrust may be warranted. A recent study of hundreds of wrongful convictions in homicide cases found that more than a third had as a cause perjury by prosecution witnesses.

The risk of such abuses has grown in the 1990s, they say, as public fear of violent crime and demands for harsher justice have increased the leeway of prosecutors to use their discretionary powers.

"A politically ambitious prosecutor is going to wage war [on crime] rather than follow ethical and Constitutional requirements," asserts Paul Petterson, acting general counsel for the National Association of Criminal Defense Lawyers.

Prosecutors, for their part, contend that criminal misconduct such as that alleged in the DuPage indictments is virtually unheard of. The case, they warn, could provoke undue caution in their ranks.

"It certainly could have a chilling effect when you get into actual decisions on how to handle a case," says John Kinsella, the DuPage County assistant state's attorney who prosecuted Cruz in 1995.

Nevertheless, a small but growing number of judicial authorities are attacking what they view as a blurring of the line between zealous and illegal prosecution.

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"There must always be a line between vigorous prosecution and official misconduct," said Illinois special prosecutor William Kunkle Jr., in announcing the charges on Dec. 12. "This indictment charges that line was crossed by seven people."

The 47-count indictment holds that from 1984 to 1995 the three prosecutors and four sheriffs conspired to withhold evidence and use false testimony to obstruct Cruz's defense. Specifically, it charges that a crucial, incriminating "vision" statement allegedly made by Cruz containing details of the 1983 abduction, rape, and murder of a 10-year-old Naperville, Ill., girl, Jeanine Nicarico, was a lie concocted by police and knowingly used by prosecutors.

If found guilty, the seven could face prison terms of from one to five years, says Mr. Kunkle. The trial is expected to take place within six months to a year.

The Illinois indictments are a striking example of a problem that was long thought to be very rare. "Until recently, most judges, lawyers, and scholars were willing to believe that the system worked as intended," states Samuel Gross, a University of Michigan law professor. "In the last decade, that optimistic view has become increasingly implausible."

A pathbreaking 1992 study by professors Hugo Bedau of Tufts University and Michael Radelet of the University of Florida catalogued 416 miscarriages of justice since the turn of the century in US homicide cases. The cases included more than 140 wrongful death sentences and 29 executions. As in the case of Cruz, the study found that perjury by prosecution witnesses was a factor in 35 percent of the erroneous capital convictions. False confessions, an indication of coercive police methods, played a role in 14 percent.

Since the late 1980s, moreover, more cases of prosecutorial wrongdoing have been uncovered as the growing use of DNA testing has helped clear dozens of innocent people. In a report last June on convictions overturned by DNA evidence, the Justice Department found that government misconduct was alleged in more than 1 out of 4 of the 28 cases studied, including the Cruz case.

On average, the defendants served seven years in prison before being released as a result of DNA testing. Cruz and a co-defendant, Alejandro Hernandez, served 11 years on death row. They were released shortly after DNA testing in 1995 excluded them as the source of semen found at the crime scene.

And in the past three years, allegations of prosecutorial misconduct made by judges to the Justice Department's Office of Professional Responsibility have increased 71 percent. Of all allegations, the number "substantiated" rose from 5 percent in 1994 to 11 percent in 1995.

While experts suggest that the alleged crime in the Cruz case - a conspiracy to frame an innocent man for murder - may be rare, less extreme forms of misconduct occur with some regularity.

Perhaps the most common serious abuse by prosecutors, experts say, is to withhold evidence they are required to turn over to the defense. In the Cruz case, the indictment alleges that two prosecutors learned in 1985 that another man, Brian Dugan, had confessed to being the sole killer of Nicarico but concealed the information from the defense for nearly four years.

A second frequent type of misconduct by prosecutors is knowingly using false or highly questionable testimony. Untruthful testimony by police is common enough that legal experts have coined a term for it: "testilying."

"Judges know it, prosecutors know it, and it goes on," says William Pizzi, a former US prosecutor who now teaches law at the University of Colorado.

Prosecutors may also distort the truth through a practice known as "woodshedding," in which they prepare witnesses to testify. Prosecutors often have tremendous power over convicts who serve as government witnesses, says Bruce Green, a former US prosecutor who is now a law professor at Fordham University in New York.

Experts say such problems are more likely in difficult high-profile murder cases, where prosecutors face tremendous pressure to win a conviction rather than dismiss a case. "It's like a pressure cooker and everyone is swept up in the feeling that you had better not let a dangerous, violent criminal go free," says attorney William Martin, a former Cook County prosecutor.

Such misconduct is both difficult to prove and to punish, partly because prosecutors enjoy sweeping immunity from civil suits related to how they prosecute cases.

Appellate courts usually dismiss allegations of prosecutorial misconduct as harmless error, although experts say more judges are becoming critical of prosectors who blatantly bend the rules.

State disciplinary bodies, while growing, remain underfunded. And Attorney General Janet Reno is backing legislation that would exempt federal prosecutors from state ethical rules.

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