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By Christy Gutowski Legal Affairs Writer | Daily Herald Staff - 7/23/2009
After a lifetime of violence, Brian J. Dugan wants something his victims were denied - mercy. The convicted double-murderer is prepared to admit at a Tuesday court hearing he killed 10-year-old Jeanine Nicarico of Naperville 26 years ago, without a guarantee he won't face execution. BACK TO STORY
After a lifetime of violence, Brian J. Dugan wants something his victims were denied - mercy.
His maneuver - to accept responsibility rather than fight the charges at trial - is not without precedent. Experts say remorse often is paramount in swaying a judge or jury in death penalty cases to instead opt for a natural-life prison sentence.
The 52-year-old Aurora man has been in prison since 1985 serving two life prison terms for the sex slayings of Donna Schnorr, a 27-year-old Geneva nurse, and 7-year-old Melissa Ackerman of Somonauk.
Jeanine was abducted, raped and fatally beaten Feb. 25, 1983, after she was snatched from her home while recovering from the flu. A year after her murder, three other men were charged. Two of them, including Rolando Cruz, spent years on death row before their exoneration.
Dugan offered to admit guilt to Jeanine's murder in 1985 during out-of-court plea talks for the two other murders, but only if prosecutors spared his life.
Prosecutors, armed with powerful DNA evidence from semen and a hair, indicted Dugan in November 2005. DuPage County State's Attorney Joseph Birkett argues Dugan, despite an unofficial moratorium, is the poster boy for why the death penalty remains Illinois law.
Sources told the Daily Herald this week Dugan is prepared to take a gamble with the hope his guilty plea will show he accepts responsibility and has true remorse.
"Remorse is almost always taken into account and, of course, it's very hard to argue that with credibility after you just stood up there and swore up and down you're not guilty," said Rob Warden, director of Northwestern University's The Center on Wrongful Convictions. "It shows that Brian Dugan for once in his life did something good - that he was instrumental in the freeing of three men, two of whom were on death row, who were innocent."
Warden added: "He will throw himself on the mercy of a jury."
Jeanine's mother, Pat Nicarico, said Wednesday she and her husband, Tom, will wait until after Tuesday's anticipated plea before commenting publicly. They are out of town and do not expect to attend next week's court hearing.
In the past, the Nicaricos told the Daily Herald they support the death penalty in their daughter's murder and still believe the exonerated men played a role in the crime. The couple say they just want the truth.
Dugan has privately offered to face them and answer their questions. He also wants a chance to apologize, the sources said.
Ed Cisowski, a former Illinois State Police investigator, said he believes Dugan had "a dual reason" for the unofficial confession to Jeanine's murder.
"He said he wanted to save the other people from death row, but I think, deep down, he didn't know what evidence he had left behind and really was just trying to save himself, too," said Cisowski, who met with Dugan a half-dozen times in late 1985 and into 1986.
Whatever Dugan's motives, his tack has been taken by others charged with capital crimes.
In fact, just Monday, 31-year-old Caroline Peoples of Chicago opted to leave her fate to a jury when she admitted fatally shooting four people while posing as a prostitute to rob customers. Cook County prosecutors agreed to consolidate all four murders, but they did not take the death penalty off the table.
In August 2004, Cook County Judge James Schreier cited a man's guilty plea for the murder of three women in the 1990s as part of his reason to spare his life.
Defendant Ronald Hinton should "get down on his knees every night and pray for forgiveness for these horrific crimes," Schreier said at the time.
The legal saga surrounding Jeanine's murder languished for years. Beside the exonerated defendants, seven law enforcement officials were cleared in a summer 1999 trial of railroading Cruz.
He and his former co-defendants also received a $3.5 million settlement in 2000 from DuPage County after the men dropped lawsuits alleging malicious prosecution.
Dugan told DuPage Circuit Judge George Bakalis of his plea intentions during a closed-door meeting Monday in the judge's chambers with the defense, sources said. Dugan has the legal right to change his mind, but the sources said he is steadfast in his decision; his remorse is sincere.
Even with a guilty plea, sources said the jury selection, death penalty eligibility and sentencing phases still will stretch into two months. Proceedings are set to begin in September.
Prosecutors are expected, in great detail, to go into Dugan's violent past, which began about age 15 with a burglary and continued until his 1985 incarceration after several break-ins, vandalism, arsons, burglaries, batteries, sex attacks, and the murders. That'll be weighed against mitigating factors, such as his violent upbringing.
Cisowski, who retired in 1993 after a 23-year career, said he supports the death penalty in this case.
"If anyone should get it," he said, "it should be him."