Pages 4 & 7
Letter by IL
Attorney General Roland Burris, responding to article
by Charles N. Wheeler III, on the Rolando Cruz case
as appellate prosecutor
letter is from the print edition of the
Illinois Issues magazine,
published at our very own university, here in the state capital; links
page have been added for reference only... We do not necessarily
endorse the content of external web pages.
By ROLAND W.
In your March 1993 issue, the "Politics" column by Charles N. Wheeler
III voiced the writer's dissatisfaction with the Illinois Supreme
Court's recent 4 to 3 decision, affirming the conviction
and death sentence in People of the
Illinois v. Rolando Cruz. As
stated by Mr. Wheeler, Cruz has filed a petition for rehearing in this
case and, as of the date of this letter (March 9), that petition has
not yet been ruled on by the Supreme Court. I will not attempt to
litigate this pending matter outside the courtroom, but I am compelled
by Mr. Wheeler's mischaracterizations to clarify the course of these
proceedings and my own role as the appellate prosecutor in this case.
Of particular interest to
Mr. Wheeler were the claim of another convicted killer, Brian Dugan,
that he alone was responsible for the crimes of which Cruz has been
convicted and the fact that some evidence of Dugan's claim was not
allowed to come before the jury. I would remind you and your readers
that the exclusion of particular documents or testimony from a trial is
by no means an extraordinary ruling. Mr. Wheeler's status as a "layman"
may excuse his casual disregard of the longstanding rules against the
use of hearsay evidence in criminal trials. However, the rules of
evidence serve an important role in our judicial system, by evaluating
the reliability of out-of-court statements before they can be placed
before a jury that will neither see the witness nor hear any
cross-examination of him under oath. In this case, the Supreme Court
found that there was nothing to indicate that Dugan's so-called
"confession" was trustworthy. Mr. Wheeler's apparent belief to the
contrary, bolstered by selective references to Dugan's statements and
omitting discussion of the errors in those statements, is not a
sufficient basis for his implicit suggestion that criminal cases should
be decided by popular opinion, rather than by time-tested rules of law.
Mr. Wheeler went on to discuss the opinion of unspecified "legal ethics
experts" as to my duties as the attorney general of this state and
raised the issue of the resignation of a young atttorney on my staff
who had been assigned to work on the Cruz appeal. Unfortunately, Mr.
Wheeler has offered an incomplete and seriously misleading version of
my role and my responsibilities in this case.
Although Mr. Wheeler did not discuss the history of this case, it must
be understood that the pending appeal is from Cruz's second trial,
which culminated in his second conviction and death sentence. On review
of Cruz's first review of conviction, the Supreme Court ruled that Cruz
and his co-defendant, Alejandro Hernandez, should have had separate
trials. However, the court also rejected the argument that the evidence
against Cruz was insufficient to support a jury's verdict. Given that
conclusion by the Supreme Court, it must be acknowledged that the
decision to prosecute was well within the ethical boundaries of
prosecutorial discretion, as regulated by the Illinois
Rules of Professional Conduct.
As the result of Cruz's second conviction and death sentence, he again
received, under state law, a mandatory review of his case by the state
Supreme Court. State law assigned the duty of defending the jury's
verdict to me, as the attorney general. That duty does not include the
right or the obligation for me to substitute either personal or popular
opinion for that trial judge, the jury or the members of the Illinois
Supreme Court. To the contrary, I must and did act as an advocate for
the People, in whose name a defendant had been duly convicted of
murder. I must discharge this duty to defend a jury's verdict unless I
find that there exists no reasonable and ethical argument to advance in
support of the conviction. I have not made such a finding in this case.
This is not a case in which the prosecutor concealed the existence of
potentially exculpatory evidence from defense counsel, as would be a
violation of ethical standards. Here, both sides were aware of Dugan's
statements and argued their admissibility before the trial judge.
Although some individuals who do not share my legal and ethical duties
as an advocate for the People urged me to "confess error" in this case,
on the basis of Dugan's claims and their exclusion by the trial judge,
the brief that I filed in the Supreme Court demonstrated that
legitimate arguments could be, and were, advanced to support the trial
court's rulings and the jury's verdict. All of the alleged errors
identified by defense attorneys were addressed, and they were the
subject of a reviewing court to examine, and the majority of the court
determined that there was no error or abuse of judicial discretion that
required a reversal of this second conviction.
In fact, the court would have made these determinations, even if I had
chosen not to fulfill my responsibilities as an advocate, because a
"confession of error" is not binding upon a court under the law of this
state. (See People v. Martin,
67 Ill. 2d 462, 367 N.E.2d 1329 (1977).)
With regard to Mary Brigid Kenney, the
article on the Rolando Cruz
by Prof. Charlie Wheeler
young lawyer who resigned
from my staff last year, it is very clear that she did so on the basis
of her personal rejection of the conviction of Rolando Cruz. As I have
explained, however, an individual's personal conclusions cannot drive
the administration of our criminal justice system. That is not to say
that Ms. Kenney's concerns were not taken seriously or that her
personal conclusions were not thoroughly considered and evaluated by
the senior staff of my office. Our review led to the determination,
however, that the jury's verdict could and, therefore, had to be
defended in the Illinois Supreme Court.
Illinois Attorney General
Roland Burris served as Attorney General of Illinois from 1991 to 1995.
USE NOTICE: This magazine letter to the editor, written in 1993 by
Illinois Attorney General Roland Burris and published in Illinois
Issues magazine (here at our
very own university), is provided for non-profit and educational
purposes, in accordance with Section 107 of
the U.S. Copyright Act.
article on the Rolando Cruz case,
by Prof. Charlie Wheeler
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