Judge rules Dugan still may face death penalty

Convicted killer Brian Dugan lost a late bid Tuesday to bar prosecutors from seeking his execution for the 1983 slaying of a Naperville schoolgirl.

DuPage Circuit Judge George Bakalis' ruling clears the way for jury selection to begin Sept. 22 as planned in the long-awaited sentencing hearing.

Dugan, imprisoned since 1985 for two later sex slayings, pleaded guilty July 28 to the fatal bludgeoning of Jeanine Nicarico after he abducted and raped the brown eyed, dimpled 10-year-old child more than 26 years ago.

Dugan, 52, linked through DNA, chose to plead guilty rather than fight the charges at trial with the hope his jury will see it as a sign that he accepts responsibility and feels true remorse.

The jury has two options - to impose a third life prison term or to order his execution.

In a unique motion, defense attorney Allan Sincox said Tuesday prosecutors should not be allowed to ask for death because they waited too long to seek the 2005 indictment.

Sincox said the delay makes it unfairly difficult for the defense to dig up mitigation to spare Dugan's life since important records exploring his past were destroyed. Witnesses, such as the defendant's mother, Genevieve "Jenny" Dugan, who died several years ago, also no longer are available.

Furthermore, Sincox argued, if Dugan had received a death sentence before January 2003, then-Gov. George Ryan would have commuted it to life when he granted blanket clemency to all on Illinois' condemned inmates.

Sincox accused authorities of intentionally delaying the indictment, despite strong evidence against Dugan, as they first tried to lay to rest the aftermath of earlier failed prosecutions of two other men. In 1999, seven DuPage County law enforcement officials were acquitted of trying to frame one of the men - Rolando Cruz. In 2000, DuPage County settled malicious prosecution lawsuits for $3.7 million.

"How good would it have been to either one of those cases if the prosecutors came out and said, 'Well, we agree. Dugan did it and he did it alone,'" Sincox said. "There is absolutely no excuse for the delay."

Bakalis, though, sided with DuPage State's Attorney Joseph Birkett. Birkett, who called Sincox's accusation "outrageous," said the timing of Dugan's indictment was based solely on the conclusiveness of the evidence, not politics. For example, the most-advanced DNA evidence linking Dugan didn't come until 2002-2003.

There is no statute of limitations on murder. Birkett noted any admissions Dugan made back in 1985 regarding Jeanine could not be used because they were part of protected plea talks for the two later murders. He said no one could have predicted the death row commutations.

Also Tuesday, Dugan's attorneys objected to jail officials confiscating several items in Dugan's cell. The so-called "shake down" came as Bakalis placed Dugan in segregation to keep him from granting media interviews and thus, tainting potential jurors, before his sentencing hearing begins. Birkett said Dugan had 75 books and magazines, including adult erotic material and topics dealing with serial killers.

"He still has a fascination with the rape of children and adult women," said Birkett, who earlier objected to the defense's request that Dugan's handcuffs be removed in court in case he tries to smuggle in a homemade weapon. "He doesn't like me and I don't like him. I don't like standing next to him unless he is handcuffed."

A pool of prospective DuPage County jurors will fill out questionnaires Sept. 18, with selection to begin Sept. 22.