Authors: Steve Bogira
“So you had nothing to do with this homicide, did you?” Cohn asks.
“No, sir,” Titone says.
McKay’s cross is an entertaining squabble, but it offers the jury little substance about the crime or Titone’s alibi. Titone’s answers aren’t always directly responsive; McKay reminds the jury of this with jabs such as “Was that hard to answer that question?” and “How’s your hearing?” “My
hearing is good,” Titone thrusts back after the latter remark. “I don’t want you to manipulate the conversation.”
Titone allows that when Gacho invited him to the motel meeting, he made the forty-five-minute drive there from St. Charles even though he hadn’t talked with Gacho in five years and Gacho wouldn’t tell him on the phone what the meeting was about. When he’s asked to describe this meeting of almost sixteen years ago, Titone’s memory is remarkably vivid: “Bob threw his jacket on the bed, sat down. I was still standing up. I believe she [De Wulf] even offered me something to drink and I turned her down.” Then Gacho and De Wulf proposed the rip-off, Titone says, and he told them he wouldn’t participate. McKay wonders why he turned them down. “Because I won’t—I’m not into that,” Titone says in an offended tone.
TITONE AND HIS PARENTS
and siblings moved to the western suburbs when he was ten. Before that he lived on Chicago’s northwest side, in a home at 2125 North Melvina. A noted Chicago crime syndicate figure,
Anthony Spilotro, also lived at that address for many years. Spilotro went on to become the Chicago outfit’s top lieutenant in Las Vegas, a position he held until he and a brother were beaten to death in 1986 in an apparent mob hit. Their bodies were found buried in an Indiana cornfield. Titone allows that he and members of Spilotro’s family grew up together in the same building. In the fall of 1983, while Titone was in jail awaiting trial in this case, Anthony Spilotro went to trial at 26th Street, also for a double-murder case. The victims in Spilotro’s case, like the victims in Titone’s, had been found in a car trunk. And Spilotro had somehow also ended up before Maloney.
Members of Titone’s family sat with members of Spilotro’s in Maloney’s courtroom while Spilotro was tried.
Spilotro chose a bench trial. Given Maloney’s inclination toward the state, that was usually an unwise choice—but it
wasn’t unwise for Spilotro, whom Maloney acquitted. Titone has since wondered whether suspicions raised by that acquittal caused Maloney to convict him when he was tried the following year. “There was a lot of heat on his courtroom,” Titone says.
Maloney had been tied to the mob from his days as a defense lawyer, federal prosecutors maintained. They also contended that Maloney’s harshness on the bench toward most defendants was calculated. “Showing defendants little mercy had the effect of diverting any conceivable suspicion from Maloney while at the same time giving defendants a strong motivation to cough up big bribery dollars,” a prosecutor said at Maloney’s sentencing.
Mob leaders here had long advised their allies on the bench to favor the state in most cases, mob expert William Roemer has written. Roemer was an FBI specialist on the Chicago outfit for many years. He wrote that Murray
Humphreys, the mobster in charge of corrupting public officials in Chicago from the 1930s through the 1960s, encouraged mob-tied judges to cultivate reputations as hanging judges. Then, according to Roemer, such a judge “could do a favor for the mob, and if someone criticized him, he could just say, ‘Look at my record; look at my statistics. You can’t just pick out this one case.’ ”
If Maloney did indeed balance his books on the backs of nonpaying defendants, then there are a host of convicts who are at least as deserving of new trials as Titone—defendants who paid the price for not paying Maloney.
Federal judges have wrestled with that issue since 1993. Four months after Maloney’s conviction that year, two men sought relief in federal court from the murder convictions and death sentences they received as codefendants in Maloney’s courtroom in 1981. William Bracy and Roger Collins asserted that Maloney had made sure they were convicted and condemned because they hadn’t tried to bribe him. Bracy and Collins won a partial victory in 1999 when a federal district judge here vacated their death sentences but affirmed their convictions,
a ruling upheld in 2002 by the Seventh Circuit Court of Appeals.
The federal judges who considered the case agreed that it was “plausible” that Maloney was biased against nonpaying defendants, and that he may at times have ruled against such defendants as part of his bribery scheme. But they split regarding what a defendant would have to show to get relief. The majority said a defendant would have to demonstrate not only that Maloney was biased in a particular case, but that the bias stemmed from corruption and wasn’t simply his usual orientation toward the state. The majority judges have voiced concern about the implications of granting Bracy and Collins a new trial, noting that to do so might nullify all of the convictions in Maloney’s thirteen years as a criminal court judge—along with, possibly, the convictions in the courtrooms of other judges who were found corrupt.
Judges in the minority have contended that Maloney’s proven crookedness could indeed invalidate most every guilty finding he made in his courtroom and that reviewing judges shouldn’t be factoring in the implications. One of these dissenters, Seventh Circuit appellate judge Ilana Rovner, has noted the irony of granting retrials to defendants such as Titone, whose fix attempts soured, while denying them to defendants who never tried to bribe Maloney. “
It is a sad day indeed when defendants who attempted to purchase their way out of a conviction receive a greater measure of justice than those who did not,” Rovner wrote in 2001. In an earlier opinion, she criticized the idea of deciding the issue on pragmatic
grounds. If retrials had to be ordered for all defendants convicted before Maloney,
“there are doubtless many guilty individuals, murderers even, who would go free” because of the age of their cases, she allowed in 1996. But this “appalling” prospect, she said, didn’t change the fact that every defendant deserved a trial before a judge who wasn’t crooked. “The Constitution was not written for easy cases and likeable defendants,” Rovner wrote.
THE AUDIO IS WORKING
again in Courtroom 302 on the morning of the trial’s third and final day, but now the air-conditioning isn’t. So the trial moves down the hall, to Courtroom 306.
In his closing argument, Cohn observes that the state failed to produce “one iota of physical evidence” tying Titone to the crime. He reminds the jurors that Titone testified even though he didn’t have to. He says that when Titone learned from his father that the police wanted to question him, “he didn’t run away. He didn’t hide under the bed. He didn’t check into a motel. He did nothing to demonstrate knowledge or acts of guilt. He came to the police station with his father. He didn’t even go and get a lawyer to come to the police station.”
McKay immediately objects, and Locallo calls a sidebar.
The lawyers and the judge huddle on the far side of the courtroom from the jury, where Locallo tells Cohn: “Now, you know from the facts that were brought out in the opinion that he showed up at the station with Mr. Roth.” Locallo is referring to the Illinois Supreme Court opinion that affirmed Titone’s conviction.
“I didn’t know that,” Cohn says.
“Yes, you did,” McKay says.
“Your honor, I’m confused,” Cohn says. “I will tell the court I made a mistake.”
“All right,” Locallo says.
But it’s Locallo who’s erred. The supreme court opinion didn’t say that Titone had come to the station with Roth, and in fact, he hadn’t. A police report indicates Titone arrived at the station with his father, was advised of his rights, refused to talk about the crime, and then phoned Roth, who showed up later. Cohn’s mistake is in failing to catch Locallo’s. As a result, Cohn’s attempt to show the jury that Titone acted as if he had nothing to hide turns into an apology that suggests the opposite. “Ladies and gentlemen of the jury, I apologize,” he says after the sidebar. “He came with a lawyer. I didn’t realize that. I’m the first one to admit it if I make a mistake. As I’ve said various other times, I’m not only broad in the belly, I’m broad in the shoulders.”
He switches to an attack on the credibility of Judy Gacho and Katherine De Wulf. Since Judy Gacho admitted that she lied under oath in 1984, how could her testimony be trusted now? As for De Wulf, by her own admission she was involved in the crime herself. She accused others of the crime “instead of taking it on her own shoulders,” Cohn says. “She’s not like me. She’s not broad in the shoulders.”
When it’s McKay’s turn, he wins instant grins from the jurors. “You know, ladies and gentlemen, Mr. Cohn, he has broad shoulders with a broad belly, but he can’t have his cake and eat it, too. He can’t stand here and say Judy Gacho’s lying and Kathy De Wulf is lying, too.… Judy and Kathy, as far apart as you can possibly be, a wife and a mistress, and never the two shall meet to put their testimonies together.”
Of Cohn’s assertion that no physical evidence links Titone to the crimes, McKay says, “You know where Dino’s fingerprints are? They’re right on his fingertips, which are attached to his fingers, which are attached to his hands, which are attached to his arms, which are attached to his shoulders, which are attached to his collarbone, which is attached to his neck, which is attached to his head. And on his head, ladies and gentlemen, is the biggest print of all—his face print … permanently embedded in the memory of Judy Gacho, permanently embedded in the memory of Kathy De Wulf. We don’t need fingerprints. It was cold that night. You can’t lift fingerprints in conditions like that. Oh, by the way, Aldo Fratto’s fingerprints weren’t on the car either. It was his car. He was in the trunk. Tullio Infelise’s prints weren’t at the scene. Is Mr. Cohn saying they weren’t there?”
In 1997 McKay and a partner won a conviction and a death sentence against an accused killer of a police officer. But the conviction would later be overturned by the Illinois Supreme Court, and the defendant awarded a new trial, because of the prosecutors’ “
overbearing conduct in pursuit of defendants’ convictions.” The high court chastised McKay for his closing argument, in which he exhorted the jury to make its verdict a message of support for police. Now, in his closing argument against Titone, McKay has the jurors in his palm. They’re leaning forward, smiling, nodding. But then he takes a gratuitous shot at Titone, the kind an appellate panel might frown upon. Referring to De Wulf’s testimony against Titone, he says, “What does Kathy De Wulf get out of this? How would you like to be her life insurance agent right now?”
Locallo sustains Cohn’s objection. “Sometimes you can snatch defeat from the jaws of victory,” Locallo says later about McKay’s remark. He says prosecutors on occasion can’t restrain themselves from taking a jab at a defendant, even when it puts their case at risk.
Titone’s alibi is “nothing more than a card trick on you,” McKay says. “You know that if a family member or a friend were with you on the night somebody says they’re committing a crime, you would come forward right away. You would tell the police. You would tell the state’s attorneys, somebody who has the power to dismiss the case, what you saw, what you know.”
McKay concludes: “So what’s in the cards for Dino Titone today? There was no poker game that night. The only card playing going on that night was three of a kind beating a pair. The three of a kind was Bob Gacho, Joe Sorrentino, and Dino Titone. Tell Dino his bluff didn’t work.”
THE JURORS HAVE BEEN
deliberating for less than an hour when they scribble out some questions for Locallo: “Where are Bob and Joe now? Where has Dino been since 1982? Why is this case just now coming to trial?” Locallo confers with the lawyers, then writes out the same answer to all of the questions: “You have heard the evidence. Please continue to deliberate.”
The buzz from the jury room comes four hours later.
The longer the jury was out, the more confident Titone had felt. But the first juror to enter the courtroom stares at the floor as she takes her spot in the box. Titone’s heart sinks. It’s guilty, he tells himself.
He’s right.
“
THAT TRIAL WAS SQUEAKY CLEAN,
” McKay says afterward. “But unfortunately for Dino the evidence was overwhelming, and the jury did the right thing.”
Titone still may benefit from this second chance. He knows that Locallo has never sentenced a defendant to death, and so he’s opted for Locallo and not the jury to decide whether he should be sentenced to death or natural life. Locallo has scheduled that sentencing for October.
FOURTEEN
A Sensitive Area
IN JULY
, Locallo rules on Leroy Orange’s bid for a new sentencing hearing.
The written ruling, which the judge reads to the parties in the courtroom one morning early in the month, is long even by Locallo standards—fifty-eight pages. Locallo recounts the testimony of the witnesses for Orange in profuse detail and cites eleven cases in his discussion of the legal issues. The aggravation evidence against Orange was “quite substantial,” the judge says, given that four people were “savagely murdered.” He agrees with the assessment that prosecutor David O’Connor made in May that Orange was not deserving of a “break.” But Orange does deserve an authentic sentencing hearing, the judge says. The failure of his trial lawyer, Earl Washington, to investigate and present mitigation had effectively deprived Orange of that. So now he’ll get one, Locallo says.
He doesn’t set a date for the sentencing hearing. First he wants to resolve the other petition filed by Orange’s present lawyer, Thomas Geraghty, the petition asking the judge for a hearing revisiting Orange’s torture claims. Through that hearing Geraghty hopes ultimately to win Orange a new trial. Locallo says he’ll listen to arguments on the petition in August. But he again voices skepticism regarding Orange’s claims. Referring to Orange’s allegation that a detective squeezed his testicles—and the fact that no evidence of injury to the testicles was found when Orange was examined after his arrival at the jail—the judge tells Geraghty, “You’re a man, I’m a man. When there’s injuries to the testicles, they don’t just disappear. It’s a very sensitive area.