Nicarico murder case may be over, but fallout lingers

If you were to stage a photograph of all victims in the Jeanine Nicarico murder case, the 10-year-old Naperville girl who was sexually assaulted multiple ways and brutally beaten to death, probably with a tire iron, 27 years ago today would be front and center, of course.

Her grieving parents and two sisters would be at her side. So would all the other people who love her, went to school with her, or simply were touched by her wonderful smile.

Unfortunately, you would also have to find a spot somewhere in that photograph for Rolando Cruz, a teenage punk who was wrongly convicted of Jeanine's rape and murder during three gut-wrenching trials, sentenced to die for crimes he didn't commit and left to linger in prison for more than a decade until the truth set him free. Pictured next to Cruz would be co-defendant Alejandro Hernandez, who also was wrongly convicted and sentenced to die for crimes he never did. Lady Justice certainly was a victim of sorts.

And somewhere, probably near that back of the photograph of victims, would be DuPage County State's Attorney Joe Birkett and his staff. Wanting to tackle what he said were inaccurate perceptions that grew out of that case, Birkett invited about a dozen reporters, columnists and editorial writers to his office in Wheaton Wednesday for a "notice of media availability" to "discuss the Jeanine Nicarico murder investigation and related issues." To explain what that meant, he told us what it didn't mean.

"Please note, this is not a press conference," read the notice. "No cameras will be allowed."

During a nearly two-and-a-half hour discussion, Birkett noted that he was not involved when the Nicarico case first went to trial, was a bit player when he was involved, and should be seen as the public official who served up the justice when the real killer pleaded guilty and was sentenced to death.

Birkett said if he had been in charge from the get-go, Cruz and Hernandez wouldn't have gone to trial for that 1983 murder, the Nicarico family would have been spared that additional courtroom angst, there never would have been a $3.5 million wrongful imprisonment settlement, and Birkett might have gone on to be Illinois attorney general or even governor by now.

"I had serious questions about the case," Birkett said, adding that he had four volumes of handwritten notes that fretted about the lack of physical evidence linking Cruz and Hernandez to the murder. Birkett said the state's attorneys who preceded him should not have pursued convictions in those cases because the evidence wasn't strong, but he also said he understands how well-meaning, decent people made those decisions.

"I disagreed with the decision to go forward, but I didn't think it was unethical," Birkett said.

The wrongful conviction process began under DuPage County State's Attorney J. Michael Fitzsimmons a quarter-century ago. Fitzsimmons, now dead, was followed by Jim Ryan, who doggedly pursued the flawed cases until he won statewide election as attorney general in 1994, and was replaced by Anthony Peccarelli, also now dead, and then Birkett, who has held the office since 1996.

On Nov. 12 of last year, Ryan, in the midst of an unsuccessful GOP primary race for governor, apologized for his role in the Cruz-Hernandez mess, saying "the system and I failed to achieve a just outcome, and for that I am sorry."

Birkett, who endorsed Ryan for governor, pointed out mistakes made by lawyers brought in to advise Ryan, mistakes made by police officers, mistakes made by other law enforcement officials, mistakes made by Cruz and Hernandez, and on and on. While he seems to bristle whenever the media bring up the DuPage County case, Birkett praised journalists for helping bring flaws in the system to light.

Death penalty reform, in which Birkett has written many rules, such as requiring videotaping of confessions and better keeping of evidence, "was long overdue," he said.

Illinois now has fixed its problems and the moratorium on executions should be lifted as there is "no likelihood that any innocent people will be executed," Birkett proclaimed. "I disagree with the notion there is any possibility some innocent person can be executed."

So there can't be a future case similar to the Nicarico case where mistakes thwart justice?

"This case," Birkett said, "is over."