Jury awards $15.5 million to Fox family
As Kevin Fox sat in the Will County jail while accused of killing his little girl, until freed eight months later on DNA evidence, he thought briefly about suicide.
"But I told myself I was better than that," he penned in a journal. "I am not going to lose this battle."
He didn't. Fox and his wife, Melissa, scored a major victory Thursday when a federal jury awarded them $15.5 million in their lawsuit against the Will County detectives who arrested him in late 2004 in the death penalty case.
The jury labored for about 16 hours over three days before reaching the verdict. After the solemn panel left the courtroom, the Foxes hugged each other in a tearful embrace. They wore ribbons on their lapels, in memory of 3-year-old Riley.
"The waiting was the worst, but it's over now and it feels great," 30-year-old Kevin Fox later told reporters. "There were 10 people on that jury and they found I wasn't in the wrong, that I did everything right."
The jury found four sheriff's detectives, the estate of a fifth and Will County was liable for damages. But the panel rejected the most serious claim, that the detectives conspired to railroad Fox.
The defendants, who still suspect Fox was involved in the crime, walked swiftly out of the Chicago federal courtroom without offering comment. Their attorneys, too, declined to discuss the verdict -- which was nearly one-third less than the $44 million the Foxes sought.
Will County State's Attorney James Glasgow promised a fierce appeal. He argues U.S. Northern District Judge John Darrah erred in banning the jury from viewing Fox's videotaped confession.
"I am highly confident that the county will prevail because the jury was not allowed to hear critical evidence bearing on probable cause," Glasgow said. "We continue to stand behind and support our detectives and the manner in which they conducted themselves."
In all, the jury awarded Kevin Fox $9.3 million, and Melissa Fox another $6.2 million. The husband's claims included a violation of his due-process rights, false arrest, malicious prosecution and intentional infliction of emotional distress.
The detectives are not expected to have to pay out of their own pockets for the verdict, which, if upheld, will be covered by the county insurer. The county itself, though, likely has to cover the $6.2 million awarded in punitive damages.
The couple's attorney, Kathleen Zellner, accused the sheriff's officials of fabricating evidence and coercing the so-called confession during a 14.5-hour interrogation. She argued they arrested Fox despite knowing he is innocent.
"They (jurors) have sent a message to Will County and I hope Will County is listening, because this kind of behavior needs to stop," she said. "They tried to ruin these people's lives, but they didn't succeed."
Zellner said the jury verdict may be the state's highest in a police misconduct case. In non-jury awards, Cook County settled for $36 million in May 1999 with four men, dubbed the "Ford Heights Four," who spent 18 years in prison before cleared in a 1978 double sex slaying.
DuPage County settled a malicious-prosecution lawsuit in 2000 for $3 million with Rolando Cruz, freed from death row in 1995 after being acquitted during a third trial of the 1983 murder of Jeanine Nicarico, 10, in Naperville.
Rob Warden, executive director of the Center of Wrongful Convictions at Northwestern University's School of Law, said the Fox verdict sends a loud message to law enforcement.
"To be liable at all in a civil-rights case means that they had to have done something wrong, not just simple negligence," Warden said. "You can be as incompetent as the day is long and still not be liable. In other words, they should have known better. They didn't have probable cause to arrest him and they did it anyway."
On June 6, 2004, hikers found the partially nude body of 3-year-old Riley Fox in Forked Creek, hours after she disappeared from her nearby home in Wilmington. Kevin Fox was arrested for her murder after a 14½-hour interrogation that began late Oct. 26, 2004.
He spent eight months in jail before Glasgow freed him in June 2005 when DNA testing on saliva recovered from the rape kit excluded Fox. A later DNA test on duct tape found on Riley's mouth also excluded him, and was the same genetic profile of that from the rape kit.
Kevin Fox confessed on videotape during the interrogation that he accidentally bumped Riley's head on the bathroom door but panicked and tried to make it look like an abduction. Fox testified that he agreed to the story only out of desperation because detectives told him he'd be freed within 24 hours on lesser involuntary manslaughter charges.
But the sheriff's detectives said they never coached Fox on his detailed accident story. They contend Fox was properly read his rights and deny he was coerced through threats, such as that they'd make sure he was raped daily in prison.
The defense argued authorities had probable cause to arrest Fox even before he confessed. He failed a lie-detector test; a car resembling his was captured on a gas station surveillance tape early that morning, when Fox said he was sleeping; and Fox waited some 40 minutes before reporting Riley missing.
More than three years later, Riley's killer remains free.
The Fox family earlier raised a $100,000 reward. "Riley's Law" also was enacted to speed up DNA testing in such murder cases.
"It's made us that much stronger of a family and we're going to continue to fight," Melissa Fox said Thursday of their long journey. "Our next step is to fund the investigation to find our daughter's killer."
The couple, who moved to DuPage County, have two other children.
Riley Fox case timeline
• June 6, 2004: Kevin Fox of Wilmington reports his 3-year-old daughter, Riley, missing about 8 a.m. Hikers find her body about 3:30 p.m. in nearby creek after massive search.
• June 7, 2004: The Will County coroner rules Riley died from "homicidal drowning."
• June 11, 2004: Some 6,000 mourners pack Riley's funeral.
• Oct. 27, 2004: Kevin Fox is arrested after Will County sheriff's detectives said he failed lie-detector test and made a videotaped statement in 14.5-hour interrogation in which he confessed to accidentally killing Riley.
• Oct. 28, 2004: Then-Will County State's Attorney Jeff Tomczak announces death-penalty decision.
• Oct. 30, 2004: Kevin Fox releases his own press statement, through his attorney, in which he proclaims his innocence; accused detectives of coercing the confession.
• Nov. 2, 2004: Republican Tomczak loses re-election bid to James Glasgow, a Democrat.
• Nov. 10, 2004: Kevin Fox and his wife, Melissa, file federal civil-rights lawsuit.
• June 17, 2005: Glasgow frees Kevin Fox from Will County jail after DNA tests the defense pushed for at a private lab exclude him as the source of DNA obtained from saliva in Riley's body.
• Nov. 7, 2007: Lawyers make opening statements at start of federal civil-rights trial; Tomczak dropped from suit in confidential agreement. Other defendants later dropped during seven-week trial as plaintiff narrows in on main detectives.
• Dec. 20, 2007: A federal jury awards $15.5 million to the Foxes against four sheriff's detectives, the estate of a fifth and Will County. An appeal is expected.
Source: Daily Herald interviews; court records