Did Brian Dugan take blame to protect the innocent?
Nearly 22 years ago, Brian Dugan claimed he alone abducted, raped and killed 10-year-old Jeanine Nicarico.
Dugan wanted to clear the books on his crimes, he said, as well as exonerate two innocent men on death row.
But he'd officially confess to the Naperville girl's 1983 murder only if granted immunity from the death penalty. Prosecutors, convinced the right men had been convicted, called Dugan a liar.
In court Friday, Dugan's defense team will ask DuPage Circuit Judge George Bakalis to bar prosecutors from using the fall 1985 confession. They argue he made it during protected plea talks. The defense also is raising a unique legal theory known as "equitable immunity" in which they insist Dugan, now serving a life term for two other slayings, made the statements in part to prevent an injustice.
"It is possible that if Dugan had not brought up the Nicarico murder, he would have never been suspected," defense attorney Steven Greenberg said. "Equity requires that Dugan be given immunity from any of his statements made in his efforts to prevent society from executing the innocent."
Dugan wasn't indicted for Jeanine's murder until Nov. 29, 2005. In the defense motion, which prosecutors will receive today, lawyers reiterate an earlier offer to plead guilty for a life prison term.
It's an offer State's Attorney Joseph Birkett refuses to accept. The slain girl's parents, Tom and Patricia Nicarico, said they support the death penalty for their daughter's murder.
Dugan, 51, has pleaded innocent. The only substantial issue raised in the nearly two years since his indictment is whether prosecutors may use his past sex crimes as evidence to show he has a propensity to commit this sort of violence. Bakalis acknowledged the law permits this, but he has not ruled which crimes will be allowed.
The defense team wants to keep out the prior confession, past crimes and, perhaps most importantly, old DNA evidence that prosecutors said links Dugan to Jeanine's rape. The latter challenge has not been officially raised yet.
Dugan was in custody for the June 2, 1985 abduction, rape and murder of 7-year-old Melissa Ackerman of Somonauk when he also offered to confess to killing Jeanine in 1983 and Geneva nurse Donna Schnorr July 15, 1984. In a plea deal, Dugan forever lost his freedom for killing Melissa, Schnorr and for three unrelated sex attacks on young women who survived.
"We literally had an open house and invited any police department that wanted to come and ask him about a crime," said Thomas McCulloch, who is Dugan's former longtime defense attorney.
"He was very aware that two men were doing his time (in prison) and was very offended that DuPage County was playing high and mighty when they convicted to innocent people."
At the time of the plea, Rolando Cruz and Alejandro Hernandez were on death row for Jeanine's murder. The men spent a decade in prison before being freed in 1995. Seven DuPage County officials later were acquitted of railroading Cruz.
In earlier trials, the Illinois Supreme Court allowed defense attorneys for Cruz and Hernandez to use Dugan's 1985 statements -- which prosecutors then argued were unreliable. The issue is much different now, though, because Dugan is a defendant and not a third party. As such, he has greater legal protections against self-incrimination.