Birkett holds court with media about his role in Nicarico saga

As the sun sets on his 30-year prosecutor career, Joe Birkett took a calculated step Wednesday to protect the legacy of his administration from "huge" mistakes he said his predecessors made in the infamous Jeanine Nicarico murder investigation.

For the first time publicly, the four-term DuPage County state's attorney said the evidence in his opinion against Rolando Cruz, Alejandro Hernandez and Stephen Buckley never was strong enough to support murder charges.

It was 27 years ago Thursday that 10-year-old Jeanine Nicarico was abducted from her home, near Naperville, sexually assaulted and fatally bludgeoned.

Three months after Birkett sent three-time killer Brian Dugan to death row for the crime, the veteran prosecutor shared his personal views on the sad quarter-century legal saga during a 2.5-hour interview with 10 reporters, columnists and editorial writers in his Wheaton office.

"Anybody who looks at what the evidence was then and what it is now would have to say these guys are innocent," Birkett said. "The original indictment should not have been brought in this case based on the evidence."

Birkett said he called the meeting to set the record straight, so to speak, in response to what he deemed inaccurate editorials that unfairly tagged the past wrongful prosecutions of innocent men to his administration, which began afterward in October 1996.

But, in doing so, Birkett also confirmed widespread courthouse speculation that he "probably" won't seek a fifth term as state's attorney in two years. Birkett said he does not have specific plans but, in the wake of failed attempts at statewide office, he long eyed a spot on an appellate or other high court bench.

"At some point and time, I'm going to be leaving," Birkett said. "I want my office to be treated fairly. If the media continues to link the men and women of this office with those mistakes, that is wrong."

Nearly 13 months after the fifth-grader's murder, then State's Attorney J. Michael Fitzsimmons charged Cruz, Hernandez and Buckley. The charges came in the midst of a heated primary fight between Fitzsimmons and Jim Ryan, who won the 1984 election and continued the prosecutions for the next decade under his leadership.

Buckley's only trial ended in a hung jury. Both Cruz and Hernandez were sentenced to death, then later retried after a higher court reversed their convictions. By then, Dugan's name had surfaced in the Nicarico investigation when he claimed sole responsibility during protected 1985 plea talks for two other murders. Prosecutors, convinced they had the right men, didn't believe him.

It wasn't until November 1995 that Cruz was acquitted at his third trial. Anthony Peccarelli was state's attorney then. He opted to drop charges against Hernandez one month later.

Birkett became an assistant state's attorney in 1981. From the onset, Birkett said he had doubts about the trio's guilt. For starters, his father-in-law, Jack Hill, a popular Aurora mayor in the 1980s at the time of the crime, privately repeated to him suspicions of local police officers who knew Cruz to be a smart-mouthed street punk and burglar, but not a child sex killer.

Birkett's involvement began after assigned to lead Cruz's third prosecution. But Birkett backed out before the case went to trial because of "serious concerns" the prosecutor said he had about incomplete witness interviews and forensic testing. In fact, Birkett said he came up with 147 unanswered questions.

"I thought the case could not be won," Birkett said. "Clearly, there was probable cause but, as a prosecutor, you have an ethical obligation to search for the truth. I was convinced Brian Dugan was the killer."

Birkett said he shared his doubts with the Nicaricos, who were convinced of Cruz's guilt. In the next several years, Birkett said, he continued sophisticated forensic testing on crime-scene evidence, which excluded all but Dugan, while his veteran investigator, Dave Hamm, interviewed witnesses in one dozen states, and even uncovered old 1985 audio recordings of Dugan talking about his sex crimes, in a search for the truth.

Birkett said it was while "following the evidence" that he became convinced Dugan acted alone, abandoning an early theory that the crime may have been a burglary-gone-bad in which Cruz and the others left Dugan after realizing a child was in the home. Birkett indicted Dugan in late 2005.

In 1999, seven DuPage County law enforcement officials were acquitted of allegations they tried to frame Cruz. DuPage County later settled the men's malicious prosecution suit for a $3.5 million insurance payout.

Though he was never accused of any wrongdoing, Jim Ryan recently offered a public apology to Rolando Cruz in the midst of his unsuccessful GOP primary race for governor.

On Wednesday, Birkett resisted throwing his predecessors underneath the proverbial bus. He said the past mistakes were honest ones, made by well-intentioned professionals who had tunnel vision. When asked if he shoulders any blame, an unapologetic Birkett responded, "For what?"

"I'm very proud of the way we (handled) this case," he said. "I feel terrible about what happened to Rolando Cruz and Alex Hernandez. Does Rolando Cruz get his name back? I don't know. I hope he does."