Authors: Steve Bogira
Strayhorn repeatedly delayed his final ruling on the matter. His hesitancy was understandable. If the allegations about the fix attempt were true, Titone himself had hardly played a virtuous role—he’d at the least acquiesced in his father’s attempt to buy his acquittal. And now he wanted a new trial because the fix attempt had backfired.
In July 1997 Strayhorn finally rendered his decision. “I cannot truly articulate the pain that I have borne in listening to the horrible things that
went on in this case in what is supposed to be a court of law and justice,” he said. He’d decided that “this entire corrupt process be wiped off the books,” and that Titone “be given an opportunity to have his case heard in a courtroom not tainted and besmirched with a corrupt judge and a corrupt defense attorney.”
AND SO HERE SITS
the impassive Titone at the defense table in Locallo’s courtroom, with a second chance at freedom.
In his opening statement, prosecutor McKay tells the jurors they’ll learn that when Titone described the shootings to Robert Gacho, and to Gacho’s mistress, Katherine De Wulf, he laughed about how Infelise and Fratto begged for their lives.
Relatives of Infelise and Fratto are in the gallery today. McKay knows from talking with them that they still want what they wanted fourteen years ago: Titone’s execution. And McKay would like to do his part. It hasn’t been lost on him that Titone is getting this second trial because an attempt to rig the first one backfired. “The more I think about it,” he’s said, “the more upset I get.”
The forty-year-old McKay has a stern mien, with a hawkish nose and unflinching eyes. His voice is strong and clear. He’s been a prosecutor for thirteen years. Defense attorneys say he’s a formidable opponent. He’d be the top prosecutor in the building, some say, but for his occasional overzealousness—the reason defense lawyers occasionally call him “Mad Dog.” McKay doesn’t mind the nickname. “I think it means I’m tenacious and determined in the courtroom. You have to be tough if you’re a prosecutor because this system is designed to protect the defendant’s rights, not the victim’s. And the burden of proof is on the prosecutor’s shoulders. The defense lawyer doesn’t have to do
shit
.” He says another prosecutor actually gave him the nickname, back when he was a relative novice and “just fire and brimstone.” Like Titone, he claims to have softened. “If you’re always shouting and pointing and yelling, the jury is going to turn off to you. I guess with age and experience you tend to mellow somewhat. But I’m still a mad dog once in a while.”
McKay says that if money were his prime concern, he would have left the state’s attorney’s office years ago. But he gets “unmitigated personal satisfaction” from his job. “Representing victims of crime is the most noble thing a lawyer can do,” he says. “I can’t think of an assistant state’s attorney who does not love his or her job. I would suspect there are tons of lawyers in private practice who hate their jobs. Maybe they like driving around in their Mercedes, but they hate their jobs.”
Locallo has barred prosecutors from referring to Titone’s previous conviction
in this case. The lawyers aren’t even to mention that there was an earlier trial. When they refer to a witness’s testimony at the first trial, they’re to refer to the trial as a “proceeding.” McKay knows that the jurors will wonder about the many years between the crime and this trial, and he expects some will guess that Titone was convicted before but won a new trial with an appeal. Such a presumption probably won’t benefit Titone, and so McKay will remind the jurors repeatedly of the time lag. “Here we are, fifteen and a half years later, and a lot has changed in that time,” McKay now tells the jury. “But the truth hasn’t changed about what happened in a desolate area by the Des Plaines River in unincorporated Lemont.”
Titone’s lawyer for this trial, Frederick Cohn, tells the jury that Titone will testify that he was playing cards miles from Bridgeport and from Lemont on the night of the shootings—an alibi that two of the other cardplayers will corroborate, Cohn promises. He says Titone’s fingerprints weren’t found on Fratto’s Oldsmobile or on either of the two guns recovered at the scene. He says the state’s main witness, De Wulf, feared she might also be charged with the shootings, and so made up “this cock-and-bull story that accuses my client.”
Cohn, sixty, has been trying cases at 26th Street for more than three decades. He’s tall and obese, with a large round face. He grew up in New York, and although he moved here more than forty years ago, he hasn’t completely shaken his Brooklyn accent. In 1955, when he was still living in New York, he joined protests in Harlem after Emmett Till was murdered in Mississippi: “There were four hundred thousand blacks and me.” In 1964, when three civil rights workers were killed in Mississippi, he took two weeks off from his job with the Cook County public defender’s office, rode a Greyhound to Mississippi, and worked as a volunteer civil rights lawyer. As a public defender, he once got a letter from a client addressed to “Mr. Fred Cohn, Public Dissenter,” a description he still considers apt: “If I see something going on that I think is wrong, it’s my nature to say something about it.”
He shares McKay’s passion for his work. Being a lawyer is a “vocation, not just a profession,” he says. He often tells people that the first criminal lawyer was Abraham, who tried to convince God to spare the people in Sodom and Gomorrah. “I tell people that I was there, whispering in Abraham’s ear. That’s basically what a defense lawyer does—he argues on behalf of bad people to try to save them.” Cohn wraps up his opening statement by telling the jurors they will hear “absolutely no credible evidence” to support the charges against Titone.
There’s plenty of evidence incriminating Titone that the jury won’t hear. There are Gacho’s and Sorrentino’s confessions, both naming Titone as the third offender. The Sixth Amendment right to confront one’s accusers precludes the use of such statements at trial (because a statement can’t be cross-examined). And the Fifth Amendment protection against self-incrimination means Gacho and Sorrentino can’t be forced to testify. (They still have appeals pending in their cases.) There’s also Tullio Infelise’s alleged emergency room statement that one of the offenders was named Dino. Since Infelise can’t be cross-examined either, that also can’t be used. The police officers who say they heard the statement can’t testify that they did; that would be hearsay. (Infelise’s “Robert Gotch” statement at the scene had been deemed admissible as a “spontaneous declaration,” an exception to the hearsay rule. But Infelise’s naming of Dino wasn’t spontaneous; it was in response to prolonged questioning by police in the emergency room.) There’s also the fact that Titone didn’t originally tell police he was playing cards at the time of the shootings, that he instead refused to answer questions about the crime. Prosecutors can’t suggest that a defendant’s decision to remain silent is a sign of guilt; they can’t even inform the jury the defendant wouldn’t talk. To do so would penalize a defendant for having exercised a constitutional right. Cohn and McKay agree that these protections are elemental to the U. S. justice system, but they speak of them in different tones—Cohn as though he’s talking about chocolate cake, McKay, lima beans. “Those are the rules, and I’m not gonna argue that the rules are bad,” McKay says. “But all too often a jury gets very little of the story.”
BRUCE ROTH
, Titone’s original lawyer, worked as a Cook County prosecutor for seven years before he went into private practice in 1976. As a defense lawyer,
Roth not only fixed cases, he forged court documents, suborned perjury, and used cocaine with his clients, federal prosecutors said at his sentencing in 1987. He was the “public’s worst nightmare of what the criminal justice system is all about,” the prosecutors said.
Roth’s résumé of corruption, as chronicled at his trial, shows how some attorneys and judges have worked in Cook County.
In 1980 Roth represented a defendant named Rocco Filipponio who’d been caught with a machine gun and cocaine in his car. Roth managed to get the case assigned to a Judge Alan Lane, and Lane acquitted Filipponio—after Roth passed the judge $15,000 from Filipponio.
In 1981 Roth brokered a deal between Judge Lane and another defense lawyer who was representing an accused armed robber. That defendant had
confessed to the crime. Though Cook County judges rarely find a reason to suppress a confession in Cook County, Lane found a reason to suppress this one. The reason was $4,000. The state had to drop the case.
In 1982 Roth appeared before Judge Adam Stillo on behalf of one of three defendants charged with dealing cocaine. Roth’s client advised his two codefendants that Roth could fix the case for all three of them, but the two codefendants opted for other lawyers. In a bench trial Judge Stillo acquitted Roth’s client and convicted the other two defendants. Before sentencing, the two convicted defendants, having seen Roth’s success with the judge, visited the lawyer at his office. Roth told them he could keep them out of prison, despite their convictions, for $25,000 apiece. One of the two paid up. Judge Stillo changed that defendant’s conviction to a lesser charge and granted him probation. The nonpaying defendant got six years.
Also in 1982 Roth tried to extort a bribe from Cook County Jail inmate Michael Davis, who was awaiting sentencing by Judge Lane on a rape conviction. In Roth’s unsolicited visit, the lawyer told Davis that Lane would toss out the conviction for $10,000; otherwise Lane would give him ten years. Davis said he didn’t have that kind of money. Roth suggested that relatives or friends raise it for him. Davis gave Roth some phone numbers, and soon Davis’s girlfriend and several relatives got calls from Roth’s office squeezing them for the money. Instead of paying Roth, the relatives called the state’s attorney’s office.
Lane was voted off the bench by fellow judges in 1983 amid questions about his integrity. (He was an associate judge, and associates face a retention vote of the circuit judges every four years.) Federal agents
stopped investigating Lane in 1984 after he was diagnosed with terminal cancer. He died the following year, at forty-two. In 1994 Judge Stillo, then seventy-seven, was sentenced to four years for fixing a half dozen cases.
“Bruce Roth didn’t create what we have now learned to be a very bad state court system,” Roth’s lawyer, Patrick Tuite, said at Roth’s sentencing in 1987. Tuite, who himself had practiced for many years at 26th Street, added that defense lawyers are occasionally confronted by clients who want to be assured they’ll win—and that the lawyers sometimes fear losing clients if they don’t give such assurances.
Although Titone swore in an affidavit, when he was lobbying for a new trial, that he’d understood from early on that Roth was trying to fix the first trial, now that he
has
a new trial he’s retreated from that position. He says he was mostly in the dark about the fix. His father told him the first trial “was being taken care of,” and he didn’t ask his father what that meant, he says. “He told me not to worry about it, I tried not to worry about it.”
Titone’s present lawyer, Cohn, says the
convictions in the 1980s and 1990s—of eighteen judges and fifty-two lawyers, along with nineteen deputies, police officers, and clerks who mainly served as bagmen—were a help to honest lawyers here. “It’s hard to compete against guys who are getting business because they’re guaranteeing cases.”
Cohn doesn’t drive a Mercedes; he drives a Dodge minivan “with no automatic windows or any of that junk.” Like most solo criminal practitioners, he’s had lean times. His willingness to work long hours has helped him survive those periods—that, and his frugality. “With too many lawyers, when the big money is coming in they assume it’s always going to continue, and so they spend it. Then they have no money to pay their taxes and they get in trouble. It pressures them to charge more, to steal from clients—just a lot of things.”
From time to time during his career, a potential client has asked Cohn if he could fix his case. Cohn says he’s thrown such people out of his office. “You don’t fix a case, because it’s
wrong
to do it,” he says. “It’s got nothing to do with whether you need the money. Yes, you have obligations to support yourself and your family, and to pay your rent and your secretary. But it’s
not
just a business. For a lot of lawyers, though, it
is
just a business.”
BEFORE THE TRIAL
Locallo informed Cohn and Titone that he and McKay lived in the same neighborhood, and that his daughter had babysat for McKay’s daughter. The judge said he’d recuse himself if Titone wanted him to.
Titone chose to stick with Locallo. From his first appearance before the judge, Titone’s impression had been that Locallo would bend over backward to be fair. He also appreciated Locallo’s respectful manner toward him in the courtroom. In Titone’s experience, most judges, lawyers, and courtroom staff made little attempt to hide their disdain for defendants.
No one ever accused the judge at Titone’s first trial, Thomas Maloney, of being overly respectful.
In a 1990 survey of prosecutors and defense lawyers conducted by the Chicago Crime Commission, Maloney got the worst score of the county’s forty-five criminal court judges in “treats defendants with consideration.” The lawyers also ranked Maloney last in how he treated witnesses and in how he treated lawyers.
“He was arrogant, the Lord High Justice,” Cohn recalls. “He basically believed that defendants should be convicted and should go to the penitentiary—unless, of course, he got paid.”
At Maloney’s trial, prosecutors presented financial records indicating that in his first six years on the bench—1978 to 1984—his expenditures
exceeded his known legitimate income by $400,000. As one federal appeals court judge later noted, this raised the “
distinct possibility” that the four fixes he was convicted of were “merely the tip of the iceberg.”
Fixes most likely were not uncommon in earlier years, at 26th Street and in other urban felony courts. When veteran defense lawyer Sam Adam started trying cases here in 1961, “there was all kinds of fixing going on,” he recalls. A defendant with mob ties would rely on a bondsman to broker a fix with the judge, he says, while a defendant with political connections would have a ward committeeman call the judge. Judges often owed their seat on the bench to the ward committeeman. “The judge knew he couldn’t cross the committeeman,” Adam says. “He’d say, ‘I’ll see what I can do’—but invariably he’d do what the committeeman wanted him to do.”