Death penalty cases lag since moratorium

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WOODSTOCK – McHenry County State’s Attorney Louis Bianchi said he would not hesitate to seek the death penalty against violent criminals such as Mark Smith or Brian Dugan.

Not that it was up to him in either case.

Serial killer Mark Smith is serving a 500-year prison sentence for, among other things, brutally killing two McHenry County women in 1970. DuPage County State’s Attorney Joe Birkett is pursuing the death penalty against Dugan, who admitted in July to raping and murdering a 10-year-old Naperville girl in 1983.

But McHenry County hasn’t seen a criminal case for which Bianchi sought the ultimate punishment since he took office more than four years ago – a situation that mirrors most counties throughout the state.

Sixteen people have been sentenced to death in Illinois since January 2000 when then-Gov. George Ryan issued a moratorium on carrying out executions. One committed suicide, leaving 15 inmates on death row in the Pontiac Correctional Center.

Last week, Bianchi’s prosecutors informed defendant Thomas Brown that they would not seek the death penalty in his case. The Wonder Lake man was accused of raping and beating to death a woman in June whom he met through an online dating site. Brown, 40, remained in McHenry County Jail unable to post 10 percent of his $1 million bail.

Prosecutors have started preliminary discussions on whether to seek the death penalty against Kyle Morgan, a 25-year-old Woodstock man accused of brutally murdering a homeless man in his apartment in January. Morgan’s case here has been continued as he is prosecuted in Tennessee for allegedly hitting two pedestrians with his vehicle while fleeing from police.

In cases involving at least one of the 21 factors that make a crime potentially punishable by death in Illinois, Bianchi said his office considers the relationship between the victim and defendant and whether the defendant had a history of physical or emotional abuse. Prosecutors also consider whether the victim threatened or attacked the defendant and the defendant’s criminal history, among other things. Bianchi said he also was mindful that the average death penalty case can cost between $2 million and $5 million.

In November 2005, about a year after he took office, Bianchi dropped murder charges against Randall Miller and James Schneider. The two Outlaw motorcycle gang members were convicted of federal racketeering charges that included killing Ruth and Morris Gauger on their Richmond area farm in 1993. They could have received the death penalty in the state case. The Gauger’s son, Gary, was incarcerated for 3½ years, including nine months on death row, and later was exonerated of the murders.

But both men were serving long federal terms: Schneider, now 45, was sentenced to 45 years, and Miller, now 50, was sentenced to life in prison.

“I did not believe [prosecuting them for the murders] was an efficient use of the county’s resources in light of the fact that they will spend the rest of their lives in prison,” Bianchi said.

Rob Warden, of Northwestern University’s Center on Wrongful Convictions, said he suspected prosecutors statewide were deciding that the death penalty wasn’t worth the time or expense in an increasing number of cases.

“You’ve got nine layers of appeals [available in death penalty cases] that will cost millions of dollars before it’s over and will take eight years at a minimum because the case is so complex,” Warden said. “The fact is, Brian Dugan is probably just as likely to die of natural causes on death row before he is ever executed.”

Before the execution moratorium, upwards of 20 people each year were sentenced to death in Illinois, Warden said. That number has dwindled to three or four a year, if that.

Warden also credited the decrease to better legal representation coupled with potential jurors who are more likely to be aware of exonerations and claims that the death penalty hadn’t been applied proportionately across racial and socioeconomic groups. Twenty of the 289 people sentenced to death between 1977 and 2000 were exonerated; that’s about 6.9 percent, Warden said.

The last McHenry County case that ended with execution was former Spring Grove resident Charles Albanese, who was executed in 1995 for fatally poisoning three relatives in the early 1980s.

McHenry County cases considered for death penalty

Edward Milka, 33, is serving a 55-year sentence for murdering and sexually assaulting his 11-year-old niece in May 1997. The girl’s body was found in Union. Prosecutors originally sought the death penalty against him but took it off the table before his trial. His projected parole date is June 2025.

Julian Palomo, 39, of Lake in the Hills is accused of murder for allegedly shaking his 3-month-old nephew so hard that the boy later died. Bianchi said in January 2007 that he decided against seeking the death penalty against Palomo partially because the victim’s family supported Palomo and because the act wasn’t premeditated. His case is set for trial on Feb. 22.

Thomas Brown, 40, of Wonder Lake learned last week that he would not face the death penalty for allegedly beating to death in June a woman he had recently met through an online dating service. Bianchi declined to discuss his reasons, because he said doing so would improperly reveal facts about the case. Brown next due is in court Dec. 2.

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