Judge wraps Nicarico murder case in shroud of secrecy

Brian J. Dugan's notoriety began in 1985 when he was imprisoned for life for two sex slayings and a series of other attacks on women who survived.

His name re-emerged with a vengeance more than three years ago when DuPage County prosecutors charged him with the Feb. 25, 1983, abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville.

Worried about publicity tainting a potential jury pool, DuPage Circuit Judge George Bakalis sealed the entire case file from public view, imposed a gag order on attorneys and, in a move rarely afforded to other murder defendants, regularly holds lengthy pretrial hearings behind closed doors.

Such restrictions often draw fire, and legal objections, from the media, who argue their access to cases is constitutionally protected.

But experts say the costly third-party interventions are becoming increasingly rare, as cash-strapped news outlets across the country fold or struggle to remain open through bankruptcy protection, layoffs and pay cuts.

And therein lies an interesting question.

"Almost all the access cases were brought by media, but if nobody is asserting that right anymore, what becomes of the right?" said attorney Steven Helle, a University of Illinois professor of journalism. "Good and not-so-good judges always close courtrooms for good reasons. But the First Amendment requires that they use closure as the last resort, not the first. If nobody challenges them, I fear closure could become the first choice."

A presumptive right

Prosecutors indicted Dugan on Nov. 29, 2005 citing, in part, improved techniques of extracting DNA evidence through semen and hair.

The 52-year-old former Aurora man's death-penalty case brought together several of DuPage County's most experienced lawyers, including Bakalis, a nearly 20-year jurist.

So far, though, no one has publicly voiced objection to his restrictions.

"If they're having substantive arguments on motions, case law and the Constitution says that should be done in public," said Donald M. Craven, general counsel for the Illinois Press Association. "Before the court closes a proceeding that the public traditionally has access to, they must explain to the public why the matter is being closed, and it must be done with the narrowest of focus."

As a general rule, the judge must make a specific finding that the open court proceeding is going to harm a greater good, such as the defendant's right to a fair trial, the safety of a federal witness or even jeopardize national security, said Richard J. O'Brien, a partner in Chicago's Sidley Austin law firm, which has intervened for the media in big cases.

At the last Dugan court hearing, on March 20, in which lawyers huddled in secrecy for 55 minutes, Bakalis said beforehand he fears pretrial publicity, "is going to taint the jury, in my mind, tremendously."

But the defense team isn't too worried. It has not sought a venue change nor has it followed through with an automated telephone poll to gauge the public's knowledge of the case nearly a year after Bakalis authorized them to spend up to $5,000 for one.

Few new details have emerged about the crime that weren't already told in news accounts and books that began surfacing in 1985 when Dugan offered to plead guilty to Jeanine's death if prosecutors spared his life - a deal they still refuse to make.

At the time, Dugan made the offer during plea talks for the abduction, rape and drowning deaths of 7-year-old Melissa Ackerman in June 1985 in Somonauk and Geneva nurse Donna Schnorr, 27, in July 1984 in Kane County.

Prosecutors originally charged three other men, including Rolando Cruz, with killing Jeanine. They were all cleared, but not before two spent a decade on death row. The trials were moved out of DuPage County because of publicity.

Afterward, seven DuPage County law enforcement officials were acquitted of malicious prosecution. The county also paid $3.5 million in settlements to Cruz and the other two men.

In that so-called DuPage 7 case, which had an intense media following, defense attorney Terry Ekl said only one out of every four people interviewed during the jury selection process knew so much about the case that they had to be excluded as a potential juror. He said about 25 percent said they never heard of Rolando Cruz or Jeanine Nicarico. The remaining 50 percent said they knew a little, but not enough to have an informed opinion.

"The truth is, in a high-profile case like that, all the pretrial publicity had no impact on the trial, whatsoever," Ekl said.

A third party

Bakalis imposed the gag order early on, but he didn't seal the entire case file until last summer when the Daily Herald published a story about the telephone poll. The story also named a defense psychiatrist expert. The information was supposed to be under seal, but a glitch in the clerk's office left it open.

Lucy Dalglish, executive director of the Virginia-based Reporters Committee for Freedom of the Press, said judges have several other tools to prevent prejudice. For example, they may grant a new trial venue, extensively question prospective jurors, admonish those selected not to follow media coverage and also sequester members.

She said judges must find the alternatives won't work before a closure.

"Not only does the defendant have a right to a fair trial and, by the way, a public trial, the public also has a First Amendment right to know what its courts are up to make sure the system is operating properly to ensure the rights of the accused, the victims and the rights of the citizens," she said.

Experts are hard-pressed to recall a high-profile example in which a criminal defendant's right to a fair trial was denied due to media exposure.

One exception was the sensational 1954 murder trial of Dr. Samuel H. Sheppard, a prominent Ohio physician who is said to be the inspiration for the film, "The Fugitive," after his pregnant wife was murdered.

Sheppard spent 10 years in prison before the U.S. Supreme Court ordered a new trial, which led to his eventual acquittal, based on what justices called the "carnival atmosphere" that permeated his trial. The high court, though, did not seek to restrict the First Amendment. Rather, justices found Sheppard's due process rights wouldn't have been violated if the judge had sequestered the jury and admonished members against reading or watching media accounts.

Helle, of the University of Illinois, said when access proponents do intervene in pretrial proceedings, they usually win. He noted the U.S. Supreme Court heard six cases in seven years - beginning in 1979 - on courtroom access, but justices haven't weighed in on the issue in about 20 years, instead leaving it up to state appellate courts, which have handed down mixed opinions.

A tough call?

The Daily Herald requested copies of Bakalis' seal order and transcripts of the latest closed-door pretrial court hearing. It also requested comment from DuPage Chief Judge Stephen J. Culliton on the issue. All requests were denied.

Brian Dugan is back in court Thursday. Bakalis set a Sept. 22 trial date, but sources have told the Daily Herald Dugan may instead plead guilty and hope his life will be spared because of his cooperation.

No one has challenged Bakalis on his restrictions, but the Illinois Supreme Court did overturn the judge in February on another issue when it ruled the defense should not be required to videotape Dugan's mental health evaluations.

Dalglish disagrees with Bakalis' access rulings, but she empathized with the tough role in which he is cast.

"I'm sure he does not want to see this case go south again and carry on for another 25 years," she said. "Maybe (Bakalis) feels the only way he can maintain control is if nobody knows about it and, on the surface, that's compelling, but it is constitutionally flawed. I don't envy a judge in his position, but the United States Supreme Court could not have been more clear on this issue."

The slain child's parents, Tom and Patricia Nicarico, who support the death penalty, declined to comment on the secrecy surrounding the case. In the past, however, the couple has repeatedly said they want one thing - the truth.

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