DeKalb County Public Defender 133 West State Street Sycamore, Illinois 60178 ‘Tel (815) 899-0760 Fax (815) 899-0761 PUBLIC DEFENDER ‘THOMAS 0. MeCULLOCH ASSISTANT PUBLIC DEFENDERS MEERA AL-HENAEY ROBERT P. CARLSON CHARLES A. CRISWELL, JR LYNN E. MeGUIRE TIFFANY LYNCH INVESTIGATOR LAWRENCE L. OLSON CRYSTAL HARROLLE MARY E, STAUFFENBERG 2 October 2015 Honorable Richard H. Schmack Office of the DeKalb County State’s Attorney 133 West State Street Sycamore, IL 60178 Re: People v, Jack McCullough Dear Mr. Schmack Itis come to my attention that Judge Pilmer, on September 16, 2015, dismissed Jack McCullough’s Post Conviction Petition. He informed me of his decision personally, but never provided me a copy of the Order that was entered. As you know, I've felt strongly about Jack’s innocence, and the process that resulted in his conviction and life sentence. Lam also aware that the Illinois Supreme Court is considering a change to the ethics rules as they apply to prosecutors in the context of postconviction proceedings and evidence that the defendant did not commit the offense for which he is convicted. I know that your professional association has supported that rule even if not implemented by the Supreme Court. Thave had some concern as to the role of the public defenders office in this case and in the postconviction process, Since I have been asked to prepare an Order reflecting the decision of the Appellate Court, I believe that I have a minimal basis for standing to proceed on behalf of my client, I certainly have a duty to bring forth information to you that you may convey to the trial court regarding Jack MeCullough’s innocence. Itis the intent of this letter to bring forth some information regarding Jack’s claims of innocence;Thave no doubt in my mind that you have reviewed the 4,334 pages of reports and additional transcripts and disclosures, and have your own opinion as to the meaning of those facts. It is certainly a shame that some information that is available within the courthouse was unknown to Jack McCullough when he prepared his postconviction petition. By that I specifically refer to public filings that have occurred on behalf of or by individuals called by the State during the trial. I will expand upon their claims later. I begin with the observation that itis ironic that this investigation was reopened based on the statements the defendant’s two younger sisters attributed to their dying mother. The defendant objected to the admission of this evidence repeatedly during the pretrial and trial phases; the State was allowed to argue that this information was, at the time, against the penal interest of the defendant’s mother. This was a ridiculous argument when made, but shows the extent to which the prosecutors would go to obtain a conviction regardless of the facts as more particularly shown below. ‘The Appellate Court ruled : “Eileen’s statement that “John did it? did not, on its face, admit that Eilene had committed a crime. To reach that interpretation, the State had to introduce the inadmissible hearsay statement of what Eileen told the FBI and then speculate that Eilene could have been prosecuted for obstruction of justice 37 years later while she lay dying of metastatic cancer. Nothing in either of Eileen statements, either the deathbed statement or the statement to the FBI agents, was facially self inculpatory. Accordingly, the trial court erred in admitting the deathbed statement.” ‘The Appellate Court was not aware that the original FBI reports of. interviews of the Tessiers do not even reflect any statement by Eileen similar to what the daughters claimed she said in 1957. ‘The handling of the grand jury, both in 2010 and 2011, causes great concern. The 2010 grand jury heard testimony but returned no indictment, and the record reflects only that the 2011 grand jury was given the opportunity to read the proceedings from 2010. It is my opinion that the better practice would have been to actually read the 2010 proceedings to the 2011 grand jury in order to ensure that everyone heard the testimony in its entirety. This was not done. ‘The grand juries in 2010 and 2011 were provided misleading and error filled information, first, by Special Agent Brion Hanley of the Illinois State Police. Special Agent Hanley informed the grand jury that he was testifying “based upon interviews that he had done in review of police reports that were generated many years ago.” What is unclear, and critical, is how he selectively edited the facts he presented to the grand jury,,and, as is now clear, neglected to inform them of facts critical to the proof of the defendant’s innocence. How can the State ethically vouch for the reliability of ancient documents before the Grand Jury and then obtain an Order suppressing the use of that same information by the defendant? Special Agent Hanley informed the grand jury that the defendant entered the military 11 days after the disappearance of Maria Ridulph and legally changed his name to Jack Daniel McCullough. While itis true that the defendant entered the service, the statement as made neglects to inform the grand jury that the process of enlistment had begun prior to the disappearance, and that the name change took place years later, and involved the taking of a family name. It also negleeted to inform the jurors that the defendant had long-standing problemswith his then stepfather who was named Tessier. What is clear, though, is that the witness intended the jury to think that Jack MeCullough left the area, joined the service, changed his name, all in an attempt to avoid prosecution. In addition, Special Agent Hanley was allowed to testify as to the defendant's divorce, the unsupported reasons for the divorce, and to provide the grand jury with information regarding a missing daughter, whom the State implied was missing as a result of the defendant’s actions without.any indication of fact, charge, investigation, or disposition. The intent of this line of questioning can only indicate an intent to prejudice the defendant, The grand jury was further informed that the defendant had remarried 5 times, for no known prosecutorial reason, ‘The ability of law enforcement to be willfully misleading is evident in the affidavit for search warrant issued in King County, Washington on June 29, 2011. In that affidavit, the judge was misleadingly informed that the victim and her friend “were last seen playing at about 6:00 PM” on Deceinber 3, 1957. That time was manifestly erroneous based on the statements and reports given to law enforcement in 1957. It appears that the time was selected to artificially work around the defendant’s alibi that placed him in Rockford, Illinois at a recruiting station and making a telephone call to Sycamore, Illinois at 6:57 PM. Indeed, many reports were obtained in 1957 that indicated the children were playing at or after 6:30 PM. ‘The court in Seattle was informed that the living witness returned to the scene at approximately 6:15 PM. This statement is not supported by the reports in 1957 and seems to be an attempt, again, to avoid the defendant's alibi and create an artificial timeline suitable to the police and prosecution theory. ‘The court in Seattle was informed that the defendant's father, John Tessier, received a collect call from his son at 7:10 PM. In fact, police and prosecution knew, based on telephone records, that the call was placed at 6:57 PM. Again, misstatements of fact were used to artificially influence the timeline. The court in Seattle was further informed about a woman named Jan Bdwards who, it was claimed, could refute some small portion of the defendant’s statement of the events of the evening of December 3, 1957. It was unknown to the defendant at the time he authored his postconviction petition, but it has come to my attention that Jan Edwards was brought to Sycamore during the trial, interviewed by prosecutors, provided an inconsistent statement which would have been favorable to the defendant which was not disclosed to the defendant or his counsel. Jan Edwards was further moved in an apparent attempt to keep the defense from finding out her location during the trial. I am aware that she appeared on a national TV show, and basically confirmed the defendant's version of the evening in question. | also believe that you have corresponded with her and obiained some original information about this topic. | assure you that Jack MeCullough did not know about this at the time he filed his postconviction petition ot it would have been included as another instance of prosecutorial misconduct. ‘The court in Seattle was informed that the defendant’s sister, Kathy, had reported attending a meeting in DeKalb on the evening of the abduction. The Court was informed that the meeting was at 7:00 PM, and that Kathy had been picked up by 8 o'clock, and upon arrival at home “observed” several police cars and emergency vehicles in the area, which was “very unusual.”In fact, police records reflect, and the prosecution knew, that the Sycamore police were not notified until after 8:00 PM on the evening in question, so that the claim of police vehicles in the area an hour earlier was simply wrong. The court in Seattle was informed that Kathy Sigman did not know John Tessier at the time of this incident or afterward; the reports generated in 1957 reflect that the families certainly knew each other. Both Kathy Tessier and Jeannie Tessier had already testified to the grand jury that their brother was likely acquainted with Maria Ridulph, which they later contradicted when testifying at trial. The court in Seattle was further informed “Ilinois State police detectives as well as detectives from Sycamore Illinois have becn in Seattle investigating this case, While here, they have been in frequent contact with Clay Campbell who is the elected State’s attomey (Prosecutor) of DeKalb County Illinois which (sic) jurisdiction over this crime.” This would indicate to me the extent of prosecutorial involvement and misconduct in the misrepresentations being made to the court in Seattle. You should be made aware that the State, during the trial of Jack McCullough, called and vouched for the testimony of three informants. Those three informants gave wildly contradictory accounts of the manner of death and the involvement of Jack McCullough, ‘The defendant, at the time, objected to the use of these individuals. The Trial Court, in rendering its decision, referred specifically to the credibility of these individuals, While I understand the State’s position in this regard, I wanted to reiterate that these individuals -~ at least 2 of them---have filed sworn pleadings in the Circuit Court of DeKalb County indicating that they were coached and made promises for their testimony, contrary to their testimony at trial, These pleadings, though public, are not things that were known to Jack McCullough at the time he filed his own postconviction petition. If these witnesses were in fact coached and made promises, then it is my belief that it ‘was probably done by Special Agent Hanley, and was probably known to the various prosecutors involved in this trial. In any event, the prosecutors are legally responsible for the acts and actions of the police in this investigation. If we were ever to be granted an evidentiary hearing, it would be my intent to issue subpoenas to the Illinois Department of Corrections for their documentation, Similar problems with factual irregularities and misstatements occur throughout the grand jury proceedings and trial; for example, Officer Hanley informed the grand jury that the police arrived and participated in the search arter the child was reported as missing. What he neglected to say was that the call to the Sycamore police occurred after 8:00 PM on the night in question, and that the police summoned various officers and firefighters to assist, but probably not until 8:30 or 9:00 PM. At trial, the defendant's sister said she was picked up from an event in DeKalb and driven by her father in the family home which was near the Ridulph home, She stated that it was near 7 0°clock and there were a large number of police vehicles with flashing lights around the neighborhood. This is important for several reasons: there were no police cars involved in the neighborhood until after 8:00 PM since they hadn’t even been called: the sister was clearly mistaken or uninformed or attempting to assist the prosecution in their timeline. While much has been said about the admissibility of police reports in a criminal prosecution, I maintain that theSheriff's Department record of the phone call occurring at 8:10 PM from the Sycamore Pi should be admissible as a business record, and that it would substantially impact the believability of the State’s witness and the prosecutor who allowed such a misstatement to occur. In your review of the reports and circumstances surrounding the convietion of Jack MeCullough, there should be some inquiry into the 50 year old identification procedure that lead to Thomas Rivard being identified as the subject on December 22, 1957; the very same witness that picked him then, and stated that he was identical to the person she identified as “Johnny” on the street several weeks earlier, is the person who, at trial 55 years later, claimed to have no recollection of earlier descriptions and the process that is outlined in the FBI reports and other records. The descriptions of Jack McCullough and Thomas Rivard are markedly dissimilar, but police used Rivard as a model suspect, for descriptive purposes, even after he was cleared by his alibi. The whole photographic array process is suspect in view of her earlier descriptions and accounts. ‘Was it influenced by Special Agent Hanley? Did it ever make sense that she didn’t know - at Jeast in general — of the existence of a family and one of the sons who lived a block away? As you know, Jack McCulloch was struck by an auto driven by her father ‘during the same timeframe. ‘The course of the investigation, as reflected in the reports, shows a timeline that absolutely contradicts the State's theory; I’m certain you have availed yourself of the reports as well as I have, but I’m willing to make a summary available for your review and use if you would like. Of particular interest to me are the statements of the Ridulph family at the time, as well as various neighbors who were aware of the girls out playing at 6:30 PM and the neighbors who heard a scream at 7:00 PM. Compare these reports to those of the recruiters who were dealing with Jack McCullough in Rockford that night and the record of a collect phone call from Rockford to Sycamore at 6:57 PM. The only conclusion I can draw is that of innocence. If you would like more circumstances and citations to times and incidents contained in the reports, we can certainly assist you. I believe you have already reviewed the same reports and will come to the same conclusion, I would, in the interests of justice, very much like to proceed to file a Motion to Reconsider and to advance this cause to the second stage in the postconviction proceeding. 1 would also like to know whether you believe that i have proper standing to do this, and if you will consent and agree to waive any possible objections. Thope you can respond quickly, as time is somewhat of the essence. ‘Thanking you in advance, I remain, Very Truly Yours, Hons © Mb ‘Thomas O. McCulloch DeKalb County Public DefenderDEKALB COUNTY STATE'S ATTORNEY RICHARD H. SCHMACK October 5, 2015 Honorable Thomas O. McCulloch DeKalb County Public Defender 133 West State Street Sycamore, IL 60178 RE: People v. Jack McCulloch, 11 CF 454 Dear Mr. McCullough: Please be advised that I am in receipt of, and have reviewed, your letter of October 2, 2015. In this letter you referenced Jack McCullough’s Post- Conviction Petition, which was dismissed by Judge Pilmer at Stage 1 without participation by my office. However, let me assure you that, in anticipation of possible Stage 2 or 3 proceedings, I assigned this matter to myself and personally undertook a review of all of the materials which you cited. Indeed, I have read all 4,334 pages of discovery reports, (excepting Mr. McCullough’s Veteran’s Administration medical records), as well as the transcripts from the trial and the 2010 and 2011 grand juries, and many subsequently published statements of witnesses, investigators and prosecutors. I have now completed that review. Mindful of the short deadline that you face regarding filing of a motion to reconsider, I spent this past weekend reviewing your letter and certain portions of the discovery materials. I conducted this evaluation in consideration of the anticipated changes to the Rules of Professional Responsibility, which you also cited. You may not be aware of this, but a public hearing on these changes was held in July. ‘The Illinois State’s Attomey’s Association not only endorsed the changes, but took the position that these are amplifications and clarifications of responsibilities which we actually already had under ourgeneral obligation to “seek justice, not merely to convict”. In light of that, I issued a memorandum to my staff directing that they evaluate claims of actual innocence as if these rule changes are already in effect. These duties are that “When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit (the offense)... if the conviction was obtained in the prosecutor's jurisdiction (to) promptly disclose that evidence to the defendant... and undertake further reasonable investigation to determine whether the defendant was convicted of an offense he did not commit.” ‘That rule deals with “new” evidence, but the next new rule says, “When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.” My reading is that the evidence need not be new and that the duty to remedy is mandatory. I am reviewing your request in both the letter and the spirit of this rule. ‘You make many points in your letter and responding to each point would be extremely time-consuming. I will simplify things by stating that I have not found that you made a single point which was not thoroughly supported by the record. However I would like to focus specifically on the affidavit in support of the complaint for search and arrest warrant which was’prepared by Cloyd Steger and submitted to Judge Michael Heavey of the King County Superior Court in Seattle. Clearly, Detective Steger had no personal knowledge of these matters, so his sworn belief that the affidavit was truewas based solely on what he considered reliable hearsay from the Illinois State Police and DeKalb County State’s Attorney Clay Campbell. In reliance on these representations, he provided Judge Heavey with, by my count following review of the discovery, at least 16 separate false or misleading statements. Particularly troubling is this seemingly innocuous statement about the FBI investigation on page 2, “Agents assisted in the investigation and conducteda number of witness interviews. The agents sent daily reports to J. Edgar Hoover, who took a personal interest in the case. (These daily reports still exist and have been acquired by investigating detectives in the last two years)”. Indeed, a great many statements which are presented thereafter do originate in those records, but the initial statement created the false impression that all of the statements presented were based on these reports, or on subsequent interviews with witnesses. ‘This statement could not have failed to lend support to Mr. Steger’s assertion on page 1 that the girls were last seen at 6:00 pm, and that Maria Ridulph ‘was missing by 6:15 pm. The first statement was patently false on its face, as both Maria and Kathy retuned to their respective homes and were seen by their families before Maria’s disappearance. However, of far greater relevance is the statement that Kathy returned at 6:15 to find Maria gone. This statement is presented as a “fact”, but nowhere in the discovery can I find a report or statement that supports this as a fact, rather than a conjectural hypothesis developed by the Illinois State Police investigators in 2009 - 2010. ANN interview with Hanley and Kot says they based this determination on the fact that Tom Braddy did not, according to a 1958 interview, see the girls as he drove away at 6:15 pm and that a bus driver passing Center Cross and DeKalb Avenue (one block away) did not see them at 6:30 pm. Obviously the failure of someone to see somebody, especially somebody making a game of concealing themselves from passing motorists, hardly can be taken as proof the people were not there. And since Braddy’s truck was facing south and the girls were behind the truck, he could hardly have seen them “as he drove away”. This time line ignores his statement to the FBI on December 4, 1957, that he saw them alone at the comer immediately before driving away. This statement should have been presented for the conjecture that it was. A. full disclosure should have been made to the court of the FBI reports documenting statements made in the first few days after Maria’s disappearance by Maria’s parents and siblings, Kathy Sigman and her parents, and neighbors David, Meredith and Randy Strombon, Kenny Davey, Mr. and Mrs. Peffer, Mr. and Mrs. Wells, Mrs. Wilkens and her son, and Mr. and Mrs. Cliffe.The current Illinois State Police timeline is absolutely dependant on all 20 of these people having been mistaken or lying in 1957. Affiant Cloyd Steger could have made that argument, of course, but just failing to mention that the victim’s father said he was watching a network television show that started at 6:30 pm when his daughter came in to get her doll is simply an unacceptable ommission. ‘The affidavit vouches for the general reliability of the hearsay in the FBI reports, and specifically cites the collect telephone call at 6:57 pm as having actually occurred. It would seem likely that Judge Heavy, if apprised of all the statements to which I previously referred, would have reached the conclusion that there was not probable cause for a search warrant or an arrest. warrant, as the FBI reports point inescapably to the conclusion that Maria’s disappearance could not have taken place earlier than 6:40 pm. Indeed I am reasonably certain that Cloyd Steger would never have prepared this affidavit or sought a warrant had he been presented with the copies of the FBI interviews. I do believe your discussion of the mishandling of the grand jury is also well taken. Brion Hanley’s statement that Maria Ridulph disappeared “a little after 6” is another example of conjecture masquerading as fact. Again, hearsay statements from Sgt. Oswald were presented as reliable, while the statements from the Ridulph family and their neighbors were concealed from the grand jury. No doubt, we prosecutors do not have an obligation to present all the evidence to a grand jury. However, presenting an unsupported assertion of a made-up timeline of when a crime occurred, and then failing to disclose contrary evidence goes beyond mere advocacy. As the US Supreme Court said in Berger v. United States (1935), a prosecutor “may prosecute with earnestness and vigor — indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as t is to use every legitimate means to bring about a just one.” I take the view that it is not improper at all for you to suggest that the record before the grand jury is replete with just the sort of foul blows from which we must refrain.Ifyou should decide to pursue a motion to reconsider and to move this case to Stage 2 on the post-conviction petition, I will not object to such a filing, nor argue that the conduct of the prosecution on both the warrant application and before the grand jury does not state a gist of a constitutional complaint. Arguing in opposition to such a motion would violate my responsibilities under RPC 3.8. Having said all that, I would also note that I am obligated under proposed Rule 3.8(g)(2)(i) to disclose new and material evidence to you, on behalf of your client. This would include, of course, any violations of the Brady Rule which I might have discemed from my review of all the materials I previously discussed. Although your office had the discovery which I reviewed, I came across a particular matter which smacks of an effort to conceal potentially exculpatory information. As you know, Brion Hanley and Larry Kot interviewed Pam Smith Long. Brion Hanley summarized her statement for the 2011 grand jury (falsely telling the them that she had known an individual in her neighborhood as John Tessier, when she actually had told him, and Kot, that she never knew his name was Tessier until he was arrested for this murder), and the State’s Attorney ultimately called her as a witness at trial. Brion Hanley’s and Larry Kot’s field notes reflect that she used the nickname “Commando” to describe him, and that he wore fatigues. Kot’s notes also contain a cryptic reference to a “1950 green Oldsmobile, Illinois registration #3-070-398. This reference is absent from Hanley’s notes and narrative. CNN ascribes a photographic memory as being a characteristic of Kot, and if he made that note during the interview from memory alone I would have to agree. However, I turn your attention to SAO 1785 in the discovery, where Detective Larry A. Tallman of the St. Petersburg, Florida police describes, on December 6, 1957, a car belonging to Irvin Eugene Shott of 225 Ellen Street, Sycamore. ‘Shott was a suspect, later thoroughly alibied, and was characterized by Chief Hindenburg, quoted in the Washington Post, the Chicago Sun Times, and the Chicago Tribune as being nicknamed “Commando” and having a reputation for giving piggy-back rides, He drove a““1951 tudor (sic) Oldsmobiledescribed as two-tone green, light bottom, dark top, bearing 1957 Illinois license tag 3070398”. Given the obvious possibility that Ms. Long was conflating a childhood memory of Shott, who lived less than a block west of her, with your client, who she never previously knew as Tessier, although “Old Man Tessier” (Eugene Tessier, according to property records) lived next door to her, it would seem like the existence of another candidate for “Commando” should have been disclosed in the narrative, at the very least. Since Kot’s knowledge is imputed to the prosecutor, I see the presentation of Ms. Long as a credible witness, while concealing the potentially impeaching material to be a clear Brady Rule violation. Both the trial judge and the Appellate Court found Ms. Long persuasive, although she never actually identified your client, nor did she testify that she actually knew the person who gave her the ride to have been John Tessier (or even a relative of “Old Man Tessier”). That being the case, any arguable impeachment is highly relevant and its concealment seems a violation of due process. The circumstances surrounding Cheryl Wiley Crane are similar. Like Long, she came forward after your client was arrested. Like Long, she contacted the State’s Attorney through a tip line. She was subsequently interviewed, a summary of her statement presented to the grand jury, and she eventually testified in the trial. Like Long, her testimony was deemed credible. Her maiden name was not listed in the SPD report, and her actual address in 1957 was also not listed, The grand jury transcript lists her as Cheryl Riley, not Wiley, and also does not indicate that she lived at 714 DeKalb Avenue in 1957. Her maiden name was never disclosed when she testified at trial, and her address was not disclosed prior to her trial testimony. This virtually guaranteed that the defense would not connect her with her father, Russell Wiley, Sr., of 714 DeKalb Avenue, his status as a suspect in 1957, or the statement which he gave the FBI within days of Maria’s disappearance. His statement that he and his family went to Belvidere at 7:30, after dinner, could certainly have been raised as impeachment regarding Mr. Crain’s recollection in 2012. Even if she didn’t accompany her family to Belvidere, her recollection of her father calling her at the Edwards Studio and of her mother being at home would have been called into question.While it is true that, from a logical standpoint, her testimony added nothing to the case against your client, it appears to have been deemed probative by some. At the very least, her connection to Mr. Wiley could have provided her with a motive to insert herself into the case to provide evidence against an individual she assumed to be Maria’s true murderer. Frankly, were I a suspect in the disappearance of a neighbor, as was Mr. Wiley, I would want to provide the best alibi I could. If my real alibi included picking up my daughter, and the daughter of the Sheriff’s crime scene photographer, why would I not have included that in my statement to the FBI. I think justice would demand, minimally, that you have been able to advance that argument. i Having made these required disclosures to you, as defense counsel, I anticipate that you will file an appropriate motion in Circuit Court. If I did not believe that you currently had standing, the Committee comments to 8.3 (g) and (h) would seem to clearly impose a duty on me to make these disclosures directly to either the Court or the defendant, and to seek appointment of counsel. Therefore, if you prepare a motion and serve me with a copy when you file it, I will prepare a pleading to be filed acknowledging your standing, or in the alternative, asking that you be appointed as counsel. Yours Truly, Richard H. Schmack DeKalb County State’s Attomey