Dugan's lawyers asks state Supreme Court to intervene
Lawyers for convicted killer Brian Dugan are asking the Illinois Supreme Court to intervene in his death penalty case, a move that may push his trial back even further.
The former Aurora man is accused of the abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville on Feb. 25, 1983.
Last year, DuPage Circuit Judge George Bakalis sided with the prosecution in ordering the defense to videotape Dugan's jailhouse interview with an expert psychiatrist it hired to do an evaluation.
Prosecutors will be allowed to view the videotape if the defense chooses to use the expert as a witness at trial.
Attorney Steven Greenberg asked high court justices Monday to overrule Bakalis. Greenberg argued the judge's order oversteps what is allowed under the law and violates the defendant's rights.
Dugan, 52, has been serving life prison terms since 1985 for two later sex slayings, one of which involved a child. Prosecutors cited improved DNA evidence more than three years ago when they indicted him in Jeanine's slaying.
The Dugan indictment came about a decade after two former death row inmates were cleared of the crime.
The latest court filing in the tangled legal saga shows a growing tension between the defense and prosecution.
"It took over 20 years to indict this defendant," Greenberg wrote in his motion. "The DuPage County prosecutors spent years trying to convict others using "shifting sand" theories, dubious jailhouse snitches and repudiated evidence.
"It is the height of hypocrisy for them to claim that videotaping expert interviews is required to guard against defense trickery."
DuPage State's Attorney Joseph Birkett declined to comment Tuesday, other than to defend the judge's ruling.
"Judge Bakalis is an excellent judge," Birkett said. "He heard all the arguments and I'm confident the court will uphold his ruling."
Greenberg also praised the judge, but he said everyone makes mistakes.
The debate was sparked by a June 25 Daily Herald article that reported the defense team planned to hire Dr. James Cavanaugh, a forensic psychiatrist whose high-profile cases include that of John Hinkley Jr. for the attempted assassination of President Ronald Reagan.
More recently, Birkett hired Cavanaugh while prosecuting Marilyn Lemak for the murders of her three children in Naperville.
Days after the Daily Herald article appeared, Birkett asked Bakalis to require videotaping of all forensic/mental health issues.
Greenberg argued prosecutors weren't even allowed under the law to know about the interview yet. The information was supposed to be under seal, but a circuit clerk glitch allowed the Cavanaugh motion to be viewed by the public and media.
Dugan is back in court Jan. 20. His trial was supposed to begin that day, but it is being pushed back to at least March at the defense's request. If the Illinois Supreme Court hears Greenberg's motion, it may take more than a year before the issue is settled.