THE FLIP SIDE OF A FAIR TRIAL

On his first day as a prosecutor assigned to a trial courtroom at the
Criminal Courts Building, Michael Goggin slid into the chair next to the
judge's chambers and his shoes struck a most unusual object--a bathroom scale.

"What's this?" Goggin recalls asking another prosecutor.

"That's for the Two-Ton Contest," came the response.

"The Two-Ton Contest?" Goggin replied, quizzically.

More than two decades later, as Goggin, now a defense lawyer, recalls the
moment, his original amazement is still apparent.

There was an ongoing competition among prosecutors to be the first to
convict defendants whose weight totaled 4,000 pounds. Men and women, upon
conviction, were marched into the room and weighed.

Because most of the defendants were African-American, Goggin recalls now,
with no small degree of discomfort, the competition was described in less
sensitive terms behind closed doors--"Niggers by the Pound."

Those were different days in the state's attorney's office at the Cook
County Criminal Courts Building at 26th Street and California Avenue, when
prosecutors were mostly white men who ate, slept and breathed their cases,
working and partying side by side. "It was us against the worst of the
worst," Goggin recalls.

It was an era where being politically correct meant being a part of Mayor
Richard J. Daley's Democratic machine. It was a time when the state's
attorney's office kept a chart of wins and losses, each victory earning a
prosecutor a green sticker next to his name, and each loss an embarrassing
red one.

It was a place where winning was so important and commonplace--Goggin's
record in one courtroom was 58 wins, two losses and two hung juries--that
the Two-Ton Contest evolved as another measure of success, with
African-Americans as game tokens.

And it was a time when some prosecutors hid evidence, overreached in
courtroom argument, reneged on promises, sat idly by while their witnesses
shaved the truth and, in some instances, were the unwitting pawns of
unscrupulous law enforcement officers who concealed evidence or lied,
according to a Tribune analysis of hundreds of cases.

Goggin himself was involved in six reversals--four murder convictions set
aside and two death sentences vacated--because of misconduct in the
courtroom. No other prosecutor in Cook County has more reversals in the
past 20 years, according to the Tribune study.

Gregg Owen, Goggin's partner in four of the reversed cases and now a
private defense lawyer in Schaumburg, says they did what other prosecutors
did. And they earned plenty of green stickers for it.

"Nobody told us to cheat. Nobody told us to do wrong," he says. "It was to
be smart, be tenacious. We were told we were the best prosecutors in the
office."

"I didn't do anything wrong," Goggin adds.

More than 16 years after Goggin left the ranks of prosecutors to go into
private practice in west suburban Oak Park, the Two-Ton Contest is long
gone. Prosecutors no longer openly refer to the suburban courthouses in
Markham and Rolling Meadows as "Darkham" and "Rolling Ghettos." And the
team of three dozen prosecutors at 26th Street has grown to more than 200,
with their ranks now including many minorities and women.

But cheating, misconduct, and in a more subtle form, the racism of the
1970s still persist.

As a result, about once a month, on average, for the past two decades, a
conviction has been set aside in Cook County because of a judicial finding
of improper conduct by prosecutors.

For the guilty, each new trial represents yet another opportunity to go
free by convincing a judge or jury that the evidence is insufficient to
convict.

In addition, the reversals exact a toll on victims and their families who
are forced to come back to court, reopening sometimes barely healed
emotional wounds. There is a cost in time and effort for investigators,
defense lawyers, judges and jurors in an already overburdened court system.

A Tribune examination of all types of criminal cases since Dec. 31, 1977,
found 326 state court convictions in Illinois--207 of them in Cook
County--have been reversed because of prosecutor misconduct.

Nearly half of the reversals in Cook County were for homicide convictions.

In addition, eight defendants in Cook County were sentenced to death and
won new sentencing hearings due to prosecutor misbehavior. When new
hearings were held, only two resulted in reimposition of a death sentence.

A Tribune study of homicide cases across the country revealed 381 reversals
since 1963 for two of the most serious types of misconduct--using false
evidence or concealing evidence suggesting innocence. The review of more
than 5,000 Illinois and Cook County cases covers all types of crimes during
the past two decades and focused on all forms of misconduct that result in
a reversal.

Most of the reversed convictions--93 percent--involved jury trials, which
prosecutors tend to win. A Tribune examination of court records shows that
in the 10-year period ending in 1995, Cook County prosecutors won about 82
percent of the murder cases tried before juries.

And while the number of reversed cases is a small percentage of the tens of
thousands of criminal charges that were filed during that period, an
examination of thousands of pages of transcripts and evidence in the Cook
County cases reveals trial after trial where prosecutors cheated, lied or
spun out of control during arguments before a jury.

Not a single prosecutor has been dismissed for misconduct since 1990,
according to Cook County State's Atty. Richard Devine and his predecessor,
Jack O'Malley. Mayor Richard Daley, who was state's attorney from 1980 to
1989, declined to comment, but top officials who worked for him also could
not recall any firings. Michael Shabat, formerly first assistant for the
late Cecil Partee, who served from 1989 to 1990, said he cannot recall
dismissals.

David Erickson, first assistant Cook County state's attorney, says that
prosecutorial misconduct is rare, occurring over the past three years in
only an infinitesimal fraction of criminal cases.

"But even one case is too much," he adds. "As small as that is, it's too
many."

The line between misconduct and hard-nosed lawyering is thin and a matter
of integrity and self-control. Misconduct ranges from an overexuberant
argument to maliciously hiding evidence of a defendant's innocence. And it
is frequently the subject of fierce debate in appellate courts, with
prosecutors defending their actions while being condemned by defense lawyers.

Goggin, who rose to become a supervisor in the state's attorney's office,
portrays himself as a well-intentioned prosecutor who lost control in the
heat of battle, driven to win by a complex blend of factors, including
appeasing the family of a victim, earning accolades of fellow prosecutors
and "getting the bad guy."

Some misconduct, such as hiding evidence, is not easily discovered. And
other kinds, such as improper argument and bullying tactics, happen in
court, where judges have the power to declare a mistrial.

Misconduct occurs in the courtrooms of permissive judges who favor the
prosecution--possibly because of friendship or a get-tough attitude toward
criminals. It occurs in the courtrooms of stricter judges who, reluctant to
declare a mistrial and start the case all over again, attempt to correct
the imbalance with a rebuke.

"There are a lot of good prosecutors out there who want to win and can take
a loss," says criminal defense attorney William Murphy, a veteran of 31
years in the Cook County courts. "And there are prosecutors who so don't
want to lose they would rather win dirty."

An examination of the cases shows that no charge was too serious and no
case was too small--convictions have been voided for a wide variety of
offenses, ranging from murder, sexual assault and armed robbery to
resisting arrest, public indecency and even the sale of stolen pigs.

- - Prosecutors Chris Cronson and Daniel Franks rejected a 62-year-old
African-American man as a juror in the murder trial of Peter Sims in 1984,
saying that at his age, he should have a better job than a stock clerk at a
shoe store. That explanation, the Illinois Appellate Court declared, was a
sham to cover their improper attempt to reject him because of his race. The
court labeled the excuse "ludicrous." Sims, who had been sentenced to 66
years in prison, was granted a new trial. He pleaded guilty and received a
reduced sentence of 33 years.

- - Prosecutor Nick Ford told a jury that he would be fired if his witnesses
lied--a blatant attempt to use the good name of his office to vouch for the
witnesses. The act, combined with judicial errors, resulted in a reversal
of the 1995 murder conviction of Christopher Henyerd, accused of the
robbery and murder of West Side grocer Nick Martini. Two months after the
reversal, Ford was named a Cook County judge. The retrial is pending.

- - Ralph Harbold, once a prominent chiropractor, is now awaiting his third
trial on a charge of murdering a wealthy businessman in 1981. His first two
trials were reversed--in 1984 and 1991--because prosecutors introduced
prejudicial evidence and made improper closing arguments. A third trial is
scheduled to begin later this year.

The 326 reversed convictions uncovered by the Tribune represent only a part
of the problem. Some cases are dismissed prior to trial for a variety of
reasons, including misconduct in the grand jury.

Reversals also occur in rulings by trial judges and in unpublished
appellate court opinions, neither of which are recorded in official legal
databases. In the past 13 months, there have been eight reversals in
unpublished opinions in Cook County.

Defense lawyers also say that when they raise a serious allegation of
prosecutorial misconduct, the issue is frequently resolved without an
official finding of wrongdoing or public exposure by cutting deals for
reduced sentences or immediate release.

Last year, a defense lawyer accused Cook County prosecutors Kent Sinson and
Peter Goutos of hiding evidence that one of their witnesses had been
promised a light sentence on a drug charge in return for his testimony
against accused murderer Bernard Benjamin. The prosecutors stood silent
when the witness denied in court that he'd been promised a deal, and
Benjamin was convicted. When the defense later learned the witness received
only probation, the prosecution agreed to a new trial, characterizing it as
"newly discovered evidence."

Some of the cases examined by the Tribune were never retried, but instead
were plea bargained for reduced sentences because evidence had deteriorated
or disappeared, memories had faded, and witnesses had died or moved away.

In one case, a clerical error resulted in a murder case being dropped
entirely. After the murder conviction of Henry Lee Thomas--accused of
stabbing Dorothy Terrell to death and dumping her body in a forest
preserve--was reversed because prosecutors improperly told jurors that he
had flunked a lie detector test, it was sent back for a new trial. But due
to an error in the Cook County clerk's office, prosecutors did not discover
the reversal until it was too late to bring Thomas to trial within the time
required by law. The delay forced them to dismiss the case.

And in some instances, the appeals process took so long that defendants had
already served their time and been released, rendering the reversal
practically meaningless.

Still other cases ended in acquittal.

The gatekeepers

While thousands of defendants pour through dozens of courtrooms across Cook
County, which has one of the largest court systems in the nation, the hub
remains the seven-story courthouse known as "26th and Cal."

Here, justice often is imperfect. And frequently, the Tribune examination
shows, it is unfair. Prosecutors and defense attorneys square off over
charges of drug dealing and robbery, sexual assault and murder; to cajole
and shout, to argue and debate, to wheel and deal, and, ultimately, to win.

The journey of a criminal case from arrest to conviction travels an often
lengthy and tortuous legal path. The reversals in Cook County show how
misconduct can occur at virtually every step of the way.

The key figure during the entire proceeding is the prosecutor, the ultimate
gatekeeper of the state's evidence and witnesses. The prosecutors control
the paperwork--the test reports of bullets, weapons, clothing, blood, hair;
statements taken from defendants and witnesses; and police reports. They
determine which of these items are turned over to defense lawyers, and when.

How does improper prosecutorial behavior make a trial so fundamentally
unfair that a conviction is set aside?

The basic right to a fair trial, even for those accused of the most
abhorrent crimes, was established in the U.S. Constitution with few
specific rules beyond the 5th Amendment right against self-incrimination.
Over the past two centuries, a vast array of rules of engagement have
evolved through decisions, usually by the U.S. Supreme Court. These rulings
control how juries are selected, what questions may be asked of a witness,
what evidence may be presented and what lawyers can and cannot say during
the arguments to the judge or jury.

Misconduct can occur before a trial and even before charges are filed.

In 1984, David Lee's rape conviction was thrown out because his confession
came only after Assistant Cook County State's Atty. Mark Schroeder told Lee
that his fingerprints had been found in the victim's apartment--even though
none of his prints were there. Although police officers are allowed to
mislead suspects during questioning, prosecutors, the court ruled, cannot.

Once charges are brought, defense lawyers are entitled to receive before
trial all information that could be viewed as favorable to a defendant, as
well as names and addresses of prosecution witnesses and their written or
recorded statements. Although it is a fundamental rule designed to prevent
trial by ambush, 25 convictions have been reversed in Cook County in the
past two decades because prosecutors failed to turn over such evidence.

Prosecutors also are responsible at trial for the acts of police and other
law enforcement officials who investigate crimes.

That was the case in 1995 when defense lawyers for accused murderer Donald
Kalwa discovered that for nearly two years, Chicago Police Detective
Richard Schak knew that a fingerprint lifted from the car window of murder
victim Rachel Rachlin--whose body was found in the trunk--did not match
those of Kalwa, but he never told anyone about it. Defense lawyers said
such a print could point to another suspect.

The concealment of evidence that suggested someone other than Kalwa may
have been the killer prompted Circuit Court Judge Fred Suria to set aside
Kalwa's conviction and order a new trial. Prosecutors Robert Berlin and
Richard Kayne said they were unaware of the evidence. Kalwa was retried and
convicted.

Some of the most insidious examples of misconduct in the Cook County courts
have occurred at the outset of trials when prosecutors reject jurors
because of their skin color. At least 22 different convictions have been
vacated in the past 12 years because prosecutors allegedly discriminated
against minorities in jury selection, according to the Tribune analysis.

In 1986, the U.S. Supreme Court, in a case entitled Batson v. Kentucky,
provided a new test to determine whether prosecutors were keeping
African-Americans off juries. Before the Batson ruling, when the threshold
for proving discrimination was so high that prosecutors excused
African-Americans without the least worry of being reversed, juries in Cook
County frequently were all white.

Some former prosecutors admit privately that African-Americans were
routinely excused in the past because prosecutors believed that they were
more likely to accept assertions that police mistreated a defendant during
questioning. And some Cook County prosecutors still attempt to keep
African-Americans from juries, in some instances with judicial help.

In 1993, for example, the appellate court found that Cook County Circuit
Judge Ronald Himel had "coached" prosecutors Georgia Buglass and Edward
Schreiber as they scrambled to find race-neutral reasons for dismissing
African-Americans from a jury. In reversing the armed robbery conviction of
Robert Banks, the appeals court noted that Himel called the Batson decision
"poorly written, poorly understandable . . . certainly wrong . . .
ludicrous and ridiculous."

As recently as September 1996, the appellate court ripped the Cook County
state's attorney's office for perpetrating "the charade" that the jury
selection process has become.

"Surely, new prosecutors are given a manual," Justice Alan Greiman noted
sarcastically, "probably entitled, `Handy Race-Neutral Explanations' or `20
Time-Tested Race-neutral Explanations.' "

Such a book, he suggested, might include the following reasons, all of them
gleaned from actual cases: too old, too young, divorced, unkempt hair,
freelance writer, wrong religion, social worker, renter, lack of family
contact, single, lack of maturity, improper demeanor, improper attire,
lives alone, lives in apartment complex, misspelled place of employment,
unemployed, employment as part-time barber, unemployed spouse, spouse
employed as school teacher, failure to remove hat, living with girlfriend,
deceased father.

Crossing the line

Most cases of misconduct occur during the trial, which begins with opening
statements, moves into presentation of the prosecution and defense evidence
and concludes with final arguments.

It is in the heat of battle, during argument before a jury or
cross-examination, that the trial misconduct frequently occurs and is
either not corrected by the judge overseeing the trial or is so egregious
that a judge's rebuke is later deemed inadequate to correct the prejudice
to a defendant.

"That adrenalin rush can push you over the line," says Michael Ficaro, a
former supervisor in the state's attorney's office in the 1970s and now a
lawyer in private practice. Ficaro prosecuted two of the reversed cases
examined by the Tribune.

It happens, according to Goggin, when "you see a defense attorney
attempting to whittle away at your evidence. A fear starts to enter into a
prosecutor's mind that you might lose this case. You try to remember what
is allowable and what's not allowed. Sometimes the things you say were
already ruled proper or harmless and they now, under certain circumstances,
different judges, different fact settings, are held to be error and they
reverse the case."

Once again, the rules of engagement bend to the will and strategies of the
lawyers and judges in the courtroom.

A Tribune examination of the Cook County cases shows reversals occurring
before more than 80 different judges, with most judges having only one or
two such cases. However, two former judges--James Bailey (17 convictions
reversed) and Thomas Maloney (10 convictions and two death sentences
reversed)--stand out.

Maloney, now serving a 15-year prison term for taking bribes to fix murder
cases, was known as a hard-nosed jurist who was openly contemptuous of
defense lawyers and imposed severe sentences on defendants.

Bailey was considered a fair-minded judge, but also one whom prosecutors
remember as allowing them wide latitude. "He would let us say just about
anything we wanted to say," recalls one former prosecutor.

Bailey acknowledged that many of the reversals were the result of improper
argument, including two cases prosecuted by Owen and Goggin and another
handled by Michael Ficaro. "They were very good, but overly aggressive,
prosecutors, very flamboyant," Bailey said. "You can't do a damn thing
about it unless the other side objects."

Most of the reversals involved death penalty cases, he noted. "In those
cases, people get inflamed. They're usually very brutal murders. And on
death penalty cases, you had to have a perfect record or get reversed."

Similarly, some prosecutors take advantage of lax or incompetent defense
attorneys who fail to object when assistant state's attorneys step over the
line. The Tribune examination of the 326 reversed convictions in Illinois
shows that the assertion of prosecutorial misconduct was accompanied in
dozens of cases with a claim of incompetence of defense counsel.

Textbook example

When professors and legal scholars attempt to illustrate how not to try a
case, they often cite the murder trial of Mitchell Weinger. The Illinois
Appellate Court overturned the conviction in 1981. The prosecutors
involved: Goggin and Owen.

"That's the one they use at the seminars," Owen says unabashedly.

The opinion as first issued was a scathing indictment of Owen and Goggin,
citing more than 50 instances of misconduct and mentioning both prosecutors
by name--an unusual practice for an appeals court. Owen said that the
original opinion was withdrawn shortly after it was issued and rewritten to
lower the misconduct count to 35 and to remove their names.

The trial's fatal flaws included the prosecution's opening statement, in
which jurors were told that a witness would say the killer was wearing a
turquoise necklace. The witness identified Weinger as the killer, but never
said he was wearing such a necklace. The error was compounded when Goggin
and Owen elicited testimony from a police officer that such a necklace had
been found in Weinger's apartment, creating an impression that the witness'
identification of Weinger had been corroborated by the police officer who
found the necklace.

In addition, the appeals court cited 20 instances where Goggin and Owen
persisted in asking witnesses to answer questions, despite the repeated
rulings by the trial judge, Frank Machala, that the questions were
improper. The tactic of continuing to pose such questions was, the appeals
court said, designed to force defense lawyers to repeatedly object in hopes
that the jury would view them as obstructionists.

After the conviction was reversed, Weinger pleaded guilty rather than go to
trial again. He served less than seven years in prison.

"Everything I did in Weinger had been upheld in the past in other cases,"
Owen says. "I tried 64 jury trials and I was 62 (wins) and 2 (losses).
Goggin and I never lost together as a team; we won almost 40 cases in a row."

Rampant emotion

Sometimes overreaching by prosecutors can taint even the most
straightforward cases.

There was never any doubt that Richard Stack killed his wife and their
13-month-old son on a sunny Mother's Day afternoon in 1980, but because
prosecutors mishandled the case, it continues to linger in the courts. And
once again, Goggin was at its center.

When police arrived at the Stack residence at 6400 S. Kildare Ave. on that
May 11, Stack, shirtless and bloody, was leaning from a shattered 2nd-floor
window, screaming, "God died for our sins!" and babbling about "devils and
demons."

Inside the modest home, Carol Ann Stack, 22, had been kicked repeatedly in
the head and was stabbed and slashed more than 100 times. Shards of a
shattered pool cue were embedded in her chest. The couple's 13-month-old
son, Richard Jr., had been stabbed repeatedly and then hurled into a wall.

Almost immediately, Stack confessed, telling police: "I just killed my wife
and kid."

Ultimately, the case boiled down to a legal struggle over whether Stack was
sane enough to be convicted and sent to prison or whether he was so
unbalanced as to be found not guilty by reason of insanity and sent to a
mental institution, where he might one day be deemed mentally fit enough to
be released.

Twice the case went to trial and twice Stack was convicted. And both times
the convictions were set aside because prosecutors broke the legal rules.

In Stack's first trial, Goggin and co-prosecutor Ernie DiBenedetto fought
vigorously for a guilty verdict that would send Stack to prison for life.
By the time Goggin stood up to give his closing argument, the case already
was critically damaged by legal miscues, including the presentation of
testimony that Stack must have been sane because he invoked his right to
remain silent. It is a violation of a defendant's rights to suggest a
defendant's silence--a constitutional right--is evidence of guilt.

But Goggin's final address to the jury was a study in rampant emotion and,
the appeals court later said, a perilous misstatement of the law.

Lacing his address with explosive words and phrases--"butcher," "stomped
their heads," "cracked that baby's skull"--Goggin pointed to the bloody
photographs of the victims. "This case is about Carol Ann Stack and Richie
Stack Jr. being transformed from two living human beings into two mutilated
carcasses.

While such language indicated how passionately Goggin wanted a criminal
conviction, none of it was outside the bounds of fairness. It was what he
said next that crossed the line, the court said.

"We all have responsibilities," Goggin declared. "And you will live with
your decision today and so will the rest of us in our society. And so will
the rest of the people from that neighborhood--if you let him escape
responsibility for his crime."

The jury heeded Goggin's words, convicting Stack of murder. But two years
later, in 1984, an appeals court ordered a new trial, saying, in part,
Goggin misstated the law by suggesting that a verdict of not guilty by
reason of insanity would set Stack free to return to the community.

Stack was convicted for a second time in 1987. Once more, the conviction
was set aside because DiBenedetto and his co-prosecutor, Richard Stock,
repeated Goggin's mistake, telling jurors they had to convict Stack to
avoid the possibility he would go free.

In reversing the case for a second time, Appellate Court Justice Calvin
Campbell noted, "It is regrettable that the victim's family will be forced
to endure a third trial. The people of the state of Illinois, including the
victim's family, are not well served by prosecutorial misconduct."

When the third trial concluded in 1996, Stack was convicted again. The case
is now on appeal and defense lawyers contend that prosecutors Charles Burns
and John Murphy presented evidence of Stack's post-arrest silence before
the jury--an error that contributed to the reversal of the first trial.

The state denies any misconduct occurred. Burns is now a judge.

Missteps in closing arguments have become the prosecutorial error cited
most frequently--108 times out of 207 reversals--in Cook County cases in
the past 20 years.

The close of a trial is when the pressure reaches its zenith, when even the
most experienced prosecutors--perhaps wearied by stress and fearful of an
acquittal--are overcome by adrenalin, sarcasm and fear of losing.

In the past 20 years, prosecutors have been criticized for referring to
defense lawyers as "slicksters" and "hired guns" and for branding
defendants as "scum" and a "lying, raping, attempt-murdering dog." In one
case, a conviction was reversed because the prosecutor asked the jury to
remember, as they deliberated, that if they acquitted the defendant, he was
"just an `L' ride" from their front door.

Erickson, who was an assistant Cook County state's attorney and then a
judge before resigning to work for Devine, summed up how it happens.

"You've tried a tremendous case. You've got a ton of evidence. You've got
an eyewitness. You've got a fingerprint. You've got a confession," he said.

"And then you get up in closing argument and you go nuts on the guy. You
start saying things over and over that you don't have to say because you've
proved it 12 times over. What you wind up with is an overkill process where
your case is reversed and sent back."

Owen pursued victories with an almost religious fervor that was born of a
loss in his second jury trial.

"It was an armed robbery and we lost," he recalls. "A year later, one of
the defendants who had been acquitted in my case broke into a man's house
and killed him. I felt responsible for the death of that man."

Owen prayed before closing arguments.

"I said, `Lord, if this guy didn't do it, don't give me the strength to do
this.' I was like a crusader and the Lord was on my side.

"All I cared about was making sure the defendant would not hit the street,"
he says. "There ain't no appeal if I lose."

TRIAL & ERROR

THE SERIES

PART 1. TIPPING THE SCALES

A Tribune investigation finds 381 people who had homicide verdicts
overturned because of prosecutor misconduct since 1963.

TODAY'S INSTALLMENT

PART 2. WINNING AT ALL COSTS

About once a month for the past 20 years, a Cook County conviction has been
reversed because of prosecutor misconduct.

PART 3. THE CRUZ CASE

Prosecutions of Rolando Cruz now defendants in historic DuPage trial.

PART 4. PROFILE OF A PROSECUTOR

Ex-prosecutor Scott Arthur and the Ford Heights 4 case.

PART 5. REWARDING MISCONDUCT

The consequence of misconduct? A better job.