Judge weighs controversial evidence in Addison murder case

DuPage County State's Attorney Joe Birkett says Antonio Aguilar gave up a fundamental constitutional right when he joined a violent street gang.

Birkett wants a judge's permission to use a rarely permitted legal maneuver that would allow prosecutors to use videotaped statements from a fellow gang member who identifies the 24-year-old Aguilar as the person who shot and killed a man three years ago. The other gang member, Robert M. Meza, has repeatedly refused to testify against Aguilar, who hails from Joliet.

Meza was sentenced to 45 years in prison for his role in the murder and is also facing additional time behind bars on contempt of court charges for refusing to testify against Aguilar despite the court's offer of immunity.

Birkett told Judge George Bakalis at a special hearing Thursday that Aguilar forfeited his right to confront his accuser because of the gang's “code of silence that threatens death to any member of the gang who talks to police about crimes other gang members have committed.

There is precedence to allow such hearsay statements, but in significantly limited circumstances. The law is called “forfeiture by wrongdoing, and it means that a judge can determine a defendant's wrongful act made a witness unavailable to testify at a trial. It has been employed in some murder trials.

Birkett is arguing that Meza is afraid he will be killed if he testifies and that Aguilar made such threats, thus depriving the state of using Meza as a witness against Aguilar. However, Aguilar's attorney, Bradley Harris, said his client never made any threats and that Meza's concerns are that fellow prisoners will do him harm if they find out he testified.

“(Prosecutors) are throwing everything up there in hope that something will stick, Harris told Bakalis.

Aguilar is accused of gunning down 22-year-old Lorenzo Salazar-Cortez in the early morning hours of Sept. 15, 2007. Prosecutors allege Aguilar believed Salazar-Cortez was a rival gang member, but in reality he was an innocent man who was attending a party at a co-worker's apartment in Addison.

Investigators have tape of both Aguilar and Meza pointing the finger at each other following their arrests, according to the lawyers. That information troubled Bakalis.

“How strong can the code of silence be if they're both talking to police? Bakalis asked Birkett. “When they were interviewed by police they both gave each other up. How's that adhering to a code of silence?

Bakalis said he would render a decision Nov. 10 on the use of Meza's videotaped statements.