Courtroom 302 (29 page)

Laverty brought Pigue downtown for a polygraph. Pigue told the polygraph examiner he had nothing to do with the Pointer crime. The examiner found “questionable motion disturbances” on some of Pigue’s answers, which, though “not dramatic … precluded the examiner from eliminating him as a suspect” in the Pointer attack, according to the examiner’s report.

The detective sent scalp hair samples from Pigue to the crime lab for comparison with scalp hairs that had been in the panty hose Purvy’s mother had found behind the radiator.

CHICAGO DETECTIVES USED TO RELY
on a double-filing system. A detective’s “official” report was sent to police headquarters downtown. When an assistant state’s attorney requested the police report in a case he was prosecuting, this was the report he received and the report he tendered to defense lawyers. But the detective retained his memos and handwritten notes—his “street file.” When the lead detective in an investigation wrote an official report, he was expected to incorporate into it any relevant information from his memos and handwritten notes, and from the memos and notes of any other detectives who participated in the investigation. Most commanders let their detectives decide what was “relevant.”

Locallo’s father, August, says that when he was commander of robbery detectives at the north-side Area 6 station in the 1970s, he insisted that his detectives include in their official reports “everything that was said and done” by witnesses, even statements not consistent with the defendant’s guilt. But the homicide detectives at his area, and the detectives in many other units throughout the city, followed a different practice, he says. Witness statements that strengthened the case against the defendant went into the official report; statements that might hurt the case—“negative evidence,” as some prosecutors and detectives called it—went no further than the street file. Many detectives “had the philosophy, ‘I’m not gonna put
anything in the [official] report that’s gonna help the defendant,’ ” August Locallo says.

The double-filing system was a handy way of skirting the requirement that prosecutors disclose any evidence suggesting the defendant’s innocence—a requirement since the 1963 U.S. Supreme Court case
Brady v. Maryland
. According to August Locallo, prosecutors at 26th Street turned a blind eye to the double-filing system. When a defense lawyer asked a prosecutor if the reports he’d been tendered were all the records that existed, the prosecutor would simply say they were, rather than ask a detective to turn over his street file. Prosecutors knew that anything in the street file that hadn’t been incorporated into the official reports wasn’t likely to help their cases. Likewise, if a detective was asked on the stand if he’d written any reports, memos, or notes besides the ones that had been produced, he’d say he hadn’t. (Police reports generally are not directly admissible as evidence, but they can be used to guide or challenge a witness’s testimony.)

The elder Locallo says he complained about the whole practice to superiors, and to judges and prosecutors at 26th Street. “I would question them [judges and prosecutors]—‘Do you think it’s right?’ They’d say, ‘Well, yeah, it’s an accepted thing—you don’t want to put a lotta shit in [an official] report, the less you put in the better.’ Well, the ‘lotta shit’ can be something that shows the guy is innocent. But I was all alone in my thinking.”

After Jones was arraigned in June 1981, his lawyers, Peter Schmiedel and Jeffrey Haas, made the standard discovery motion for all police records, including “any material or information which tends to negate the guilt of the accused as to the offense charged … and any other material or information favorable to the accused.”

Among the few records they got in response was the official report of Detectives Houtsma and Tosello, written the evening Jones was charged. That report made Jones’s guilt seem obvious, mostly because of what was omitted from it.

Houtsma and Tosello neglected to mention that Purvy Pointer Sr. had been interrogated at Area 2 for most of a day and that a polygraph examiner had found him noncooperative. They neglected to mention that in their first interview with Purvy Junior, the youngster had said the attacker was a gangbanger with lighter skin than his, and that the first time Jones’s photo was shown to Purvy, he’d given no response when he was asked if Jones was the offender, and that he’d offered a last name for the attacker that had sounded like Anderson, Henderson, or Harrison.

In a second report supplied to Jones’s lawyers, Houtsma and Tosello acknowledged the discovery of the panty hose a week after Jones was
charged, and Purvy’s revised account that there’d been two attackers. But this second report omitted mention of Purvy’s statement to Detectives Laverty and Bennett that the attacker had been a gangbanger who hung around the West Pullman school, and it didn’t say anything about Purvy’s repeated references, again, to “George Anderson,” or about his aunt reminding him that he really meant George Jones.

The omitted information was all on paper, in memos and reports—inside a street file folder at Area 2.

That October, at the request of Commander Deas, Laverty wrote a memo detailing the information he had about the Pointer case, including the results of his interview with Lester Pigue. The report wasn’t turned over to Jones’s prosecutors or defense lawyers.

Jones’s lawyers did get a report that month from police crime lab microanalyst Mary Ann Furlong. A comparison of Jones’s scalp hair with the hair found in the panty hose was inconclusive, the report said. Furlong had also compared Lester Pigue’s head hairs with the panty hose hairs, pursuant to Detective Laverty’s request—but she didn’t mention that in this report. The Pigue comparison had also been inconclusive. But had Furlong mentioned it in this report, it would have tipped Jones’s lawyers that there’d been another suspect. Furlong would later testify she put the results of the Pigue hair comparison in a separate report, which she placed in the Sharon Hudson file—Hudson being the young woman Pigue had confessed to killing—even though she’d done the hair comparison for the Pointer case.

In her October report, Furlong disclosed some other lab results. She’d determined from samples of Jones’s blood and saliva that he had type A blood and that he was a “secretor”—meaning his blood antigens would be secreted into his bodily fluids, including his semen. Furlong also wrote that she’d found semen on a vaginal swab taken from Sheila Pointer. But in her report, Furlong neglected to mention that antigens found on the vaginal swab had been those of a type B secretor, not a type A secretor like Jones.

After a phone call from Jones’s lawyers, Furlong issued a second report the following month, acknowledging the type B results. She’d later testify she’d “inadvertently” left this out of her previous report.

Jones’s lawyers would contend, during his civil suit, that the type B finding positively excluded Jones as Sheila Pointer’s rapist. But that wasn’t necessarily so, Furlong would testify during that suit. Sheila Pointer herself was a type B secretor, and her blood antigens could have masked the antigens of the offender, according to Furlong.

Mary Pierson, a California forensic scientist who has testified frequently about blood and semen evidence, told me that masking was indeed
a possibility in such circumstances. But Furlong herself would acknowledge in her testimony during the civil suit that the type B finding was “very important information” that should have been included in her original report.

LOCALLO GOT
the Jones case when he became the lead prosecutor in Judge Cousins’s courtroom in the fall of 1981.

The most important part of preparing a case for trial, Locallo learned as a novice prosecutor, was preparing the state’s witnesses for their testimony. From a veteran colleague named Ray Garza, Locallo learned to make a special effort to develop a rapport with his witnesses. Garza would never have someone else in the office call a witness for a “prepping” session Garza was going to conduct; he always made the call himself, introducing himself not as “State’s Attorney Garza” but as “State’s Attorney Ray.” Locallo’s witnesses, likewise, were apt to get a call from “State’s Attorney Dan” when he wanted to go over their testimony before trial. That fall, Locallo met repeatedly with Purvy to prepare him for his testimony against Jones.

Preparing witnesses is a “necessary and acceptable part of the prosecutor’s function,” Bennett Gershman, law professor at New York’s Pace Law School and a former prosecutor, wrote in a 2002 article in the
Cardozo Law Review
. But it can be tempting, Gershman wrote, to suggest answers to witnesses that “eliminate ambiguities or contradictions.” Because of the prosecutor’s status, a witness “may try to conform his recollection of the event to what the witness believes the prosecutor wants to hear,” Gershman wrote. He added that children are especially vulnerable to suggestive questioning. Like prosecutors, defense lawyers can cross the line when preparing a witness, Gershman noted; but the power of prosecutors and their special duty to serve justice make it even more important for them to stay within bounds, he said.

Locallo allows that prosecutors who pose leading questions to their witnesses in prepping sessions can end up eliciting erroneous testimony at trial. He avoided that risk by sticking to open-ended questions in his sessions, he says.

The Jones case represented a particular challenge for Locallo. Since no physical evidence linked Jones to the crime, and since Jones had made no admission, it was clear from the outset that the case would turn on Purvy’s testimony.

Locallo prepared for the case with his usual zeal. In his meetings with Purvy he found the youngster to be “very slow.” The attack had apparently
left him with some brain damage. He was only ten years old, “and because of the injuries, he was like maybe six or seven,” Locallo says. Even before the attack, Purvy had scored in the lowest two percent in intellectual functioning in standardized tests. Locallo says he met with Purvy five to ten times before the trial. Purvy was “tentative” at first, “but the more he saw of me—we were able to communicate pretty well.” “State’s Attorney Dan” brought Purvy into Cousins’s empty courtroom one afternoon and had him sit on the witness stand. He showed the youngster where the judge would sit, where the jury would be, and where he and the other prosecutor would be. But no, he didn’t show Purvy where Jones would be sitting, Locallo says. That wouldn’t have been proper, given that he planned to ask Purvy to point out Jones in the courtroom during his testimony.

In his meetings with Purvy, Locallo was trying not only to build a rapport with the youngster but also to “jar his memory,” he says at first—but then quickly adds that he doesn’t think the youngster had any difficulty remembering the assault. During one of Locallo’s early meetings with Purvy, however, the youngster’s account of the attack changed again. Purvy said Jones hadn’t himself pulled off the mask he’d been wearing; Sheila had ripped it off him, after which she’d cried, “Why are you doing this to us, George?” This both weakened and strengthened Locallo’s case. It made Purvy a more dubious witness to have his account of the attack shift yet again. But it made more sense for Sheila to have pulled the mask off than for Jones to have gone to the trouble of wearing a mask, only to take it off in the middle of the attack. And the statement Purvy was now saying Sheila had made would explain how Purvy had known that the attacker was named George.

ON THE EVE
of the trial, Locallo and his second chair, James Varga, informed Judge Cousins they’d be seeking the death penalty if Jones were convicted. It was a superior’s decision, Locallo says, but a decision he agreed with because of the viciousness of the crime.

The trial, before a jury, opened on April 6, 1982, with testimony from both of Purvy’s parents. Purvy himself took the stand on the trial’s second day.

On Locallo’s direct examination, Purvy gave a lucid account of the attack, from the time it began to the time he was knocked unconscious.

He was awakened by noises in the house that night, he told the jury. He peeked out his bedroom door and saw two men in the living room. He shook Sheila awake and told her about the men. He heard them go into his parents’ bedroom. He put his ear to the wall and heard them “taking apart
the TV.” He heard dressers slam. Then the two men came into his and his sister’s room and turned on the lights. Both of the men were wearing masks; one had a gun and the other had his father’s metal pipe. The man with the pipe climbed on top of Sheila, began pulling off her clothes, and “started raping her.” Then “he pulled off—she pulled off his mask,” Purvy told the jury; and then Sheila “said, ‘Why are you doing this to us, George?’ ”

Locallo asked Purvy if he saw this “George” in the courtroom. Purvy pointed at Jones at the defense table.

After Sheila asked “George” why he was doing this, George hit her on her head with the pipe, Purvy said, and she stopped moving. Purvy told the jury he jumped onto the man’s back, but the man knocked him off. He ran to the kitchen and hid under a table, but George dragged him back to the bedroom. Then George hit him on the head—and the next thing Purvy knew, he was waking up in the hospital.

There hardly was anything Purvy couldn’t recall on direct examination; he had an answer for almost every one of Locallo’s 278 questions. His memory quickly clouded, though, when Locallo sat down and defense attorney Jeffrey Haas began his cross. What happened before Sheila got hit? Purvy had known on direct, but now he didn’t. Did the attacker have the pipe when Sheila said, “Why are you doing this to us, George?” Now Purvy didn’t know. Did Sheila get hit with the pipe right after she said that? He didn’t remember. When he jumped onto the attacker’s back, was the man still wearing a mask? He was, Purvy said at first; then corrected himself. What happened after he ran out to the kitchen? He didn’t recall at first. Then he said both men dragged him out from under the kitchen table. Then he said only the man with the pipe dragged him out.

Purvy’s explanation for the changes in his account of the attack before the trial—regarding how many attackers there were, and whether they were wearing masks, and who pulled George’s off—was that he’d made no such changes. He insisted he’d said from the very first time detectives questioned him that there were two attackers, both wearing masks and one carrying a gun, and that Sheila had pulled the mask off one of them.