The Frame Game

By ADAM COHEN

It was the kind of crime that breaks a community's heart. Ten-year-old Jeanine Nicarico, home from school with a cold, was taken from her suburban Chicago house in broad daylight, raped and killed. Her badly beaten body was discovered two days later in a wooded area six miles away. The public demanded that the murder be solved, and the police obliged. Du Page County residents slept a little better after police arrested Rolando Cruz, a street tough from a nearby town. Local prosecutors finished the job, presenting a solid case that landed Cruz on Illinois' death row.

The only trouble was that Cruz didn't kill Jeanine Nicarico. A sheriff's officer later admitted that he testified inaccurately about a key piece of evidence used at Cruz's trial. Cruz was freed in 1995, after 11 years in jail. Another man--a convicted murderer and rapist whose earlier confession to the murder had been ignored--was linked to the crime by DNA. After an independent investigation, seven prosecutors and law-enforcement officials were indicted on charges of fabricating and suppressing evidence to frame Cruz.

The trial of the Du Page Seven, as they are known, is expected to start this week, and it could make history. If they are found guilty, the prosecutors in the group will be the first in the nation ever convicted of crimes for railroading an innocent man. The charges, which the defendants deny, have caused an uproar in Illinois. The state has freed two men from its death row this year after investigations supported their innocence.

The Illinois cases of errant prosecution bring a new element to the growing national debate about overzealous law-enforcement agents, a furor stoked by high-profile police shootings in New York and California as well as "racial profiling" by New Jersey state troopers. The question is whether law enforcement, amid its extraordinary success in pushing the crime rate down, is showing too little regard for individual rights--especially those of blacks and Hispanics, who are most often targets of alleged misconduct. "We cannot have the kind of country we want if people are afraid of those folks who are trying to protect them," President Clinton said during his press conference last Friday, after promising to seek $40 million from Congress for improved police training and recruitment.

Even supporters admit Cruz went looking for trouble--and he found it. After the Nicarico slaying, police searched for leads in Aurora, the working-class town where Cruz lived. Perhaps prodded by a $10,000 reward, Cruz began telling wild stories. The police took him on as an informant, settling him in a witness-protection housing complex, while he told what one of his lawyers concedes were lies. "It was a big game," says Northwestern University law professor Lawrence Marshall, who represented Cruz on appeal. "Nobody's defending Rolando for playing that game, but it doesn't deserve a death sentence."

That's where it was headed. Investigators began to suspect that the talkative Cruz was involved in the killing, but they had no solid evidence linking him to it. Then the so-called vision statement materialized. Detectives say Cruz told them he had a vision of Nicarico's killing, including details only the killer could know. The statement was the most damning piece of evidence against Cruz when he was tried and convicted of the crime. Still, it was always a little fishy. Despite its importance, the detectives hadn't tape-recorded it or even taken notes about it. But a prosecutor, Thomas Knight, claimed that detectives had told him about the vision statement. Cruz was convicted and sentenced to death in 1985.

While Cruz was on death row, another young girl was killed. The man who confessed to that murder, Brian Dugan, was the man who had admitted killing Nicarico. When Marshall and a team of prominent lawyers stepped in, they collected DNA evidence proving Cruz couldn't have committed the rape. They also hammered away at the vision statement. At Cruz's third trial, Lieutenant James Montesano testified that he was on vacation in Florida on the day his detectives claimed they had called him about Cruz's vision. The judge angrily dismissed the case and set Cruz free.

Under pressure to find out what went wrong, Du Page County appointed a special prosecutor, William Kunkle, who had made his name putting serial killer John Wayne Gacy on death row. Kunkle concluded that the vision statement was fabricated and that Cruz had been framed. He filed charges against three former Du Page prosecutors (two of them later became a sitting judge and an assistant U.S. Attorney) and four sheriff's deputies. The defendants all insist they are innocent, and the Nicarico family has rallied to their defense. The trial, likely to last more than a month, may be tough going for prosecutors. They will need to persuade a jury that a phalanx of law officers tried their best to send an innocent man to the electric chair. Such a thing should be unthinkable. Sadly, it is not.

The Du Page Seven trial comes at a moment of extraordinary soul-searching for the Illinois justice system. Earlier this month Anthony Porter, who has an IQ of 51, was freed from death row after serving 16 years for a double murder he did not commit. At the time of his trial, Porter could not afford an investigator to work on his case, and his lawyer called a grand total of three defense witnesses. Porter was freed when a Northwestern University journalism class investigated his case and obtained a confession from another man. A key prosecution witness, who later recanted, now says police threatened him into testifying against Porter.

In another Illinois case this month, four men who served up to 18 years for a double murder they did not commit reached a $36 million settlement with Cook County. In their suits, the so-called Ford Heights Four charged that the sheriff's office fabricated evidence and ignored or hid leads pointing to the four men who actually committed the crime. In the past dozen years, Illinois has freed 11 men from death row--one less than it has executed since 1977. Nine of the freed men were black or Latino.

The frame game some Illinois authorities have allegedly been playing hits the headlines at a time of heightened national concern over aggressive law-enforcement practices. In New York City, authorities have been on the defensive since last month, when a West African street peddler named Amadou Diallo was killed by police. He died in a barrage of 41 bullets as he entered his Bronx apartment building. The police say the officers fired on Diallo because they thought he was reaching for a gun. He was unarmed.

The Diallo killing has prompted a wave of protests and civil disobedience. More than 140 demonstrators, including Congressman Charles Rangel, former Mayor David Dinkins and N.A.A.C.P. president Kweisi Mfume, have been arrested in front of New York's police headquarters in the past two weeks. The protests are designed to pressure the police department--and especially Mayor Rudolph Giuliani--into addressing racism and brutality in the ranks. And New York City public advocate Mark Green last week called on Police Commissioner Howard Safir to resign, saying Safir has failed to deal adequately with the allegations against his department.

The officers who shot Diallo were members of the elite street-crimes unit, a plainclothes force charged with getting guns off the street. The unit makes up 1% of the police department but seizes 40% of guns recovered in New York. Critics say the unit, whose unofficial motto is "We own the night," cuts legal corners and is too quick to resort to force. "You have to have a new paradigm of policing," says Ron Daniels, executive director of the Center for Constitutional Rights. "This gung-ho, military-type, fraternity-style policing has got to change."

A particular sore point is the unit's aggressive use of "stop and frisk" tactics. Of the 27,061 people its officers frisked last year, more than 80% were unarmed, which suggests that the cops felt they needed little in the way of probable cause to stop someone. Critics say the frisks are overly intrusive and unequally applied. "They will shake you down because of the color of your skin or the way you dress," charges Dinkins. Federal prosecutors in Manhattan last week launched a probe of N.Y.P.D. tactics.

Last Friday, Safir appointed a black officer to the No. 2 position in the street-crimes unit. (Black leaders dismiss the move as window dressing.) Both Safir and Giuliani have emphatically denied that the police are guilty of misconduct or racial bias. The Diallo controversy, Giuliani says, has been stirred up by political activists and the scandal-hungry press. In fact, he points out, fatal shootings by police are at their lowest level in 13 years. The police department is controversial, its supporters say, because it has been doing its job vigorously. And they note that it has been phenomenally effective. Robberies are down 50% in the past four years, and murders are down 60%. The real danger, some New Yorkers say, is that the criticism will cause the crime rate to rise once again. "We need to be careful," says former New York City Police Commissioner William Bratton. "We don't want to oversensationalize it so the cops play turtle and decide not to get involved."

In California, Riverside remains torn by the shooting of Tyisha Miller last December. Miller, 19, a black woman, was waiting in a car with a flat tire for a cousin to bring help. When the cousin arrived, Miller seemed to be unconscious in the locked car with a gun on her lap. The cousin, fearing Miller was sick, called 911, and when the police arrived, they yelled at her to open the door and smashed a car window. Suddenly they fired 24 bullets into the car, striking Miller at least 12 times and killing her. Miller's family accuses the police of murder. But police say Miller was reaching for the gun despite their orders not to. The explanation hasn't satisfied many people in Riverside's black community. Last week more than 1,200 people crowded into a Baptist church for a protest meeting led by the Rev. Jesse Jackson.

Complaints about law enforcement aren't confined to sensational police shootings. Day in and day out, minority communities around the country feel unfairly burdened by America's tough new policing strategies. In an illegal tactic called racial profiling, blacks and Latinos charge, New Jersey police pull over a disproportionate number of minority drivers, then look for a crime or violation to charge them with. A study found that the troopers are five times as likely to target blacks as they are whites. Governor Christine Todd Whitman fired the state-police superintendent this month for defending his officers by saying minorities are more involved than whites in drug trafficking.

When crime rates are high--or when there is a horrific crime, like the Nicarico murder--the pressure on law enforcement is immense. But get-tough policies can mean getting tough on innocent people--even sending them to death row. With crime rates falling, Americans don't want to go soft on crime, but their sense of fairness is being sorely tested. Communities are beginning to ask how prosecutors and police can be effective while still respecting citizens' rights. Now it's time for law-enforcement officials to start taking the question seriously too. "The criminal-justice system works," says Jed Stone, who represented Rolando Cruz in an early trial, "only if the ordinary citizen believes in the integrity of the system."

--Reported by Julie Grace/Chicago, Corliss M. Duncan/Los Angeles, Dion Nissenbaum/Riverside and Elaine Rivera/New York

With reporting by Julie Grace/Chicago, Corliss M. Duncan/Los Angeles, Dion Nissenbaum/Riverside and Elaine Rivera/New York