Any person that has read this blog, or has followed the case very much knows there is something fishy. There are too many things that just don’t make sense, but because Clay Campbell and Brion Hanley are such honest men, and the Tessier Sisters cry so well, Jack McCullough must be guilty. Well, it is getting obvious now (as of October 13, 2015) that the entire bunch lied, withheld evidence, and were generally dishonest.
The Daily Chronicle has now published the last two motions filed. Found Here: “http://www.scribd.com/doc/286510947/Jack-McCullough-Motion-to-Reconsider”
I have taken the liberty to download one of the documents, and put it into a text file for easier reading below the two PDF versions.
I have taken the liberty to download one of the documents, and put it into a text file for easier reading:
Original Motion, filed October 13, 2015: McCullough Motion to Reconsider (Includes attachments not found below.)
State of Illinois ) #01826891
County of DeKalb )
IN THE CIRCUIT COURT FOR THE TWENTY-THIRD JUDICIAL CIRCUIT DEKALB COUNTY, ILLINOIS
People of the State of Illinois, )
vs ) General No. 11 CF 454
Jack D. McCullough, )
Motion to Reconsider the Dismissal of Defendant’s Post Conviction Petition
NOW COMES the Defendant, Jack D. McCullough, by his trial attorney, Thomas 0 McCulloch, moving this Honorable Court for relief pursuant to the Illinois Post Conviction Hearing Act, 725 ILCS 5/122 – 1 et seq. and, in support of this request, alleges and states as follows:
Petitioner Jack D McCullough filed his petition entitled “Pro Se Post-Conviction Petition/Actual Innocence” on June 19, 2015. He largely, if inartfully, sought relief based on actual innocence, a claim he has made consistently and unflaggingly since his arrest. It is the intent of this Motion to readdress some of the claims made by the petitioner in an effort to show that the “gist” of a constitutional claim had been made. It is also the intent of this motion to show that information was known and available to the Court which directly affects his Petition, and which was unknown to the petitioner because of his incarceration in the Illinois Department of Corrections.
It is also the intent of this motion to present facts, again unknown to the petitioner, which bear directly on the process which resulted in the arrest, prosecution, and conviction of the petitioner.
REVIEW OF THE COURT’S ANALYSIS
The Court, in its written ruling, refers the reader to People v. Edwards, 197 Ill. 2d 239,244 (2001). The court cited Edwards for the proposition that the petition could be summarily dismissed as frivolous or patently without merit unless the allegations in the petition, taken as true and liberally construed, present the “gist” of a valid constitutional claim. In the Edwards case, the court defines gist as follows:
The “gist” standard is a” low threshold.” To set forth the gist of a constitutional claim, the post-conviction petition “need only present a limit of detail” and hence need not set forth a claim in its entirety.
Of further note in the Edwards case, in his concurring opinion Justice Fitzgerald stated that” … under the “gist” standard, the pro se defendant must plead sufficient facts from which the trial court could find a valid claim of deprivation of constitutional right.”
So, the “gist” of what “gist” means is that a pro se defendant must plead enough facts so that a trial court could find a valid claim of deprivation of a constitutional right, but not to the standard expected of an attorney. The standard allowed by the court to pro se parties is lesser than what is required of an attorney. This only applies to the first of the three reviews under the post-conviction relief statute. Subsequent stages do not have this low of a standard.
As applied to this case, your petitioner presented concerns, of constitutional magnitude, regarding the State’s use of informants in the county jail. While the court may have considered this claim to be unfounded, such is not the function of the court in stage one of a post-conviction proceeding. Well-pleaded facts, if not contradicted by the record, should be taken as true.
It is also important to note that the petitioner was unaware that two of the State’s witnesses have subsequently taken the position that their testimony at the petitioner’s trial was induced by promises made by prosecutors and state agents, and that they were specifically instructed to deny that any promises were made during the course of the trial and their testimony. Witness Swaggerty corresponded with the Court on January 25, 2013 and then, on February 19, 2014, testified as to his hope or belief that he was going to testify “the way they wanted me to.” Witness “John Doe” was permitted to testify under the assumed name pursuant to an agreement with the State; The State’s original motion was filed on September 10, 2012, and is contained in the Court’s records; thereafter “John Doe” filed his Notice and Motion on September 22, 2014, seeking to enforce the agreement between the “States Attorneys as well as other state agents’ made a deal’ to provide certain benefits (‘promises”) in exchange for his testimony in this case.” “John Doe” filed the same documents in the Second District Appellate Court under case number 12-1364, again asserting an agreement for his testimony and filed another request for Appellate Court intervention on January 2, 2015. Finally, “John Doe” corresponded with an attorney from the Office of the State Appellate Defender, in a letter postmarked on April 16, 2015, in which he discusses that he was instructed to not discuss the agreement between himself and the State. Copies of these documents are attached and incorporated herein, with the names and addresses redacted in the case of John Doe, whose persistence in trying to keep his anonymity continues to this date.
It should also be noted that the documents that are attached relating to the informant-witnesses are ones that were sent to the Courts and were not made available to the petitioner. Counsel suggests that there are other records subject to a subpoena, such as visitor logs and records maintained by the Department of Corrections, and that further facts could be developed through the interview process with the individuals involved. At this point in time, however, further information is not available to the petitioner or counsel, but such absence of material and information should not bar petitioner’s post-conviction claim.
The petitioner also presented the claim that there was newly discovered evidence not available to him at trial. This addresses information about a woman named Jan Edwards. Jan Edwards as will become clearer, was supposed to contradict a portion of the petitioner’s statement to Seattle police detectives. It was unknown to the petitioner at the time he filed his post-conviction petition, but it is a matter of some public knowledge that the person known as Jan Edwards appeared on The Doctor Phil Show, a national television show, and provided information that was totally contrary to the State’s theory of the case. If permitted, petitioner can obtain the video and transcript of that show to support this claim. In addition, I believe that the person known as Jan Edwards would testify that she was brought to DeKalb County by the prosecution, interviewed in contemplation of testimony during trial, and that, when she provided information inconsistent with the State’s theory, she was physically moved and kept from access to petitioner’s counsel. The information that she had provided to the prosecution was never disclosed to petitioner’s counsel as would be required under Brady v. Maryland. Counsel believes that there is correspondence from Jan Edwards currently in the possession of the State’s Attorney of DeKalb County which should be disclosed to the Court and counsel in connection with this proceeding.
PETITIONERS CLAIM OF ACTUAL INNOCENCE/POLICE AND PROSECUTOR MISCONDUCT
The petitioner .has asserted his actual innocence in his pro se petition, but the attachments and facts laid out here support and explain his position It is time that such an explanation occur. The best way to explain this is in the context of the application for an arrest and search warrant that occurred in Seattle Washington on June 29, 2011. The affidavit in support of the complaint for search and arrest warrant was prepared by Cloyd Steger and submitted to Judge Michael Heavey of the King County Superior Court in Seattle. Detective Steger had no personal knowledge of these matters, so his sworn belief that the affidavit was true was based solely on what he considered reliable hearsay from the Illinois State Police and the then DeKalb County State’s Attorney, Clay Campbell.
Detective Steger informed the court about the FBI investigation as follows: “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 2 years).” While a great many statements which are presented thereafter do originate in those reports, the initial statement created the false impression that all of the statements were based on these reports. It is untrue and misleading.
In the affidavit in support of the search warrant, the judge was misleadingly informed that the victim and her friend “were last seen playing at about 6:00 PM on that date.” 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 of 1957 and, again, appears to be an attempt to avoid the defendant’s alibi and create an artificial timeline suitable to the police and prosecution theory. The Court was not informed of the statement of Torn Braddy, made to the FBI on December 4, 1957 that he saw the children alone at the comer immediately before driving away. A more complete reference to the statements made to the FBI within the first few days after Maria’s disappearance would have made reference to reports by Maria’s parents and siblings, Kathy Sigman and her parents, 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. Detective Steger failed to mention that the victim’s father said he was watching a network television show that started at 6:30 PM when his daughter carne in to get her doll. This is an unacceptable omission.
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, the police and prosecution knew, based on telephone records, that the call was placed at 6:57 PM from a phone booth outside of the recruiting station in Rockford Illinois.
It seems hard to believe that Judge Heavy, if he had been fairly and accurately apprised of all the statements that were the subject of the FBI investigation in 1957, would have reached the conclusion that there was probable cause for a search warrant or an arrest warrant, as the FBI reports and statements of witnesses point inescapably to the conclusion that Maria’s disappearance could not have taken place earlier than 6:40 PM and that the defendant, at all times material and relevant, was in Rockford Illinois making a phone call from outside of the recruiting station to his father and Sycamore at 6:57 PM.
The court in Seattle was further informed about a woman named Jan Edwards who, as indicated above, could refute the defendant’s statement of the events of the evening of December 3, 1957.
As indicated above, however, Jan Edwards would have supported the defendant’s version of the evening’s events. The police failed to accurately disclose this to the court in Seattle, and the prosecution failed to disclose statements they obtained from her in the course of preparation for trial in violation of Brady v. Maryland.
The court in Seattle was informed that the defendant’s sister, Kathy, had reported a meeting in DeKalb that evening. The Court was informed that the meeting was at 7:00 PM and that she had been picked up by 8 0’ 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 while testifying at trial.
The court in Seattle was further informed “Illinois State police detectives as well as detectives from Sycamore Illinois have been in Seattle investigating this case. While here, they have been in frequent contact with Clay Campbell who is the elected State’s attorney (Prosecutor) of DeKalb County Illinois which (sic) jurisdiction over this crime.” This would indicate the extent of prosecutorial involvement and misconduct in the misrepresentations being made to the court in Seattle.
Similar problems with factual irregularities and misstatements occur throughout the grand jury proceedings and trial; for example, special agent Hanley informed the grand jury that the police arrived and participated in the search. He had earlier informed the grand jury that his testimony was based on his own research and on the reports generated in 1957. What he neglected to say was that the call to the Sycamore police occurred after 8:00 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. The records of the DeKalb County Sheriff s Department reflect that the phone call was received from the Sycamore police at 8:10 PM. While much has been said about the admissibility of police reports in a criminal prosecution, it appears that the Sheriff’s Department record of this call should be admissible as a business record and that it would substantially impact the believability of the State’s witnesses and the prosecutor who allowed such a misstatement to occur.
A review of the reports created in 1957 reflect a timeline that absolutely contradicts the State’s theory. The Ridulph family, as well as various neighbors reported being aware of the girls out playing at 6:30 PM, and neighbors heard a scream at 7:00 PM. Compare those 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 grand jury in 2010 and 2011 was 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 that 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.
Special agent Hanley did, however, provide a great number of misleading and irrelevant pieces of information to the grand jury. For example, he told them that the defendant entered the military 11 days after the disappearance of Maria Ridulph and legally changed his name to Jack Daniel McCullough. While it is true that the defendant entered the service, the statement as made fails 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 neglected to inform the grand jury 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 McCullough left the area, joined the service, and changed his name, all in an attempt to avoid prosecution. In addition, Special Agent Hanley was allowed to testify as to the defendant’s marriages and divorces, the unsupported reasons for the divorce, and speculate as to a missing daughter, whom the State implied was missing as a result of the defendant’s actions.
The witness neglected to provide any facts, evidence of a charge, an investigation or disposition of this claim. The intent of this line of questioning can only indicate a desire to prejudice the defendant-petitioner.
NEWLY DISCOVERED EVIDENCE
Pam Smith Long was called as a witness at trial, and, over the defendant’s objection, was permitted to testify as to a piggyback a ride occurring at a time and place different than in the location of the crime in question. Special Agent Hanley had summarized her statement for the 2011 grand jury, and had falsely told them that she had known an individual in her neighborhood as John Tessier. In fact, Pam Smith Long, upon being initially interviewed, had said that she never knew his name was Tessier until he was arrested for this murder.
Agent Hanley’s field notes reflect that she Pam Smith Long used the nickname “Commando” to describe the man and that he wore fatigues. Field notes from an additional investigator makes reference to a vehicle and registration number which are absent from Hanley’s notes and final report. The investigation further revealed that the car belonged to Irvin Eugene Schott of 225 Ellen St., Sycamore, IL. There were various reports identifying Schott as being nicknamed “Commando” and for having a reputation for giving piggyback rides.
There is an obvious possibility that Miss Long was conflating a childhood memory of Schott, who lived less than a block west of her, with the defendant, whom she never previously knew a as Tessier, in spite of the fact that the defendant’s father lived next door to her, seems to raise the possibility of another candidate for “Commando.” Schott was an early suspect in the investigation. Since the investigator’s knowledge is imputed to the prosecutor, the presentation of Miss Long as a credible witness while concealing this impeaching material is a clear Brady
Rule violation. Both the trial judge and the Appellate Court found Miss Long persuasive although she never actually identified the defendant nor did she testify that she actually knew the person who gave her the piggyback ride to have been John Tessier. In any event, any impeachment is highly relevant and its concealment remains a violation of the defendant’s rights to due process.
The circumstances surrounding Cheryl Wiley Crane are similar. Like Long, she came forward after the defendant 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 testified the trial. Like Long, the testimony was deemed credible.
Her maiden name was not listed in the Sycamore Police Department 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 information only recently became available to the defendant through the current State’s Attorney. The prior lack of disclosure guaranteed that the defense would not connect her with her father, Russell Wiley, Senior, of 714 DeKalb Avenue, his status as a suspect in 1957 based on local rumors, or the statement which he gave the FBI within days of Maria’s disappearance.
His statement that he and his family went to Belvedere at 7:30 PM, after dinner, could certainly have been raised as impeachment regarding Ms. Crane’s recollection in 2012. Even if she didn’t accompany her family to Belvedere, her recollection of her father calling her at the Edwards Studio and of her mother being at home would have been called into question, as would the possibility of yet another suspect with varying stories or claims as to where they had been on the evening in question.
Attached and incorporated herein are copies of various documents relating to the informants called by the State in the trial of the petitioner. As indicated earlier, the identities and addresses have been redacted, it being the belief that the State is fully aware of the individual’s identity and location. With respect to the recitations of fact arising out of the various grand jury proceedings and the reports and investigations done in 1957 and thereafter, I request that the State identify, with particularity, those facts and reports that they may disagree with so that the necessary documentation can be attached, if necessary.
WHEREFORE, for the above and foregoing reasons, and for such other and further reasons as may be just and appropriate, your petitioner Jack D McCullough requests that this court:
- Docket this motion for reconsideration and the underlying post-conviction petition for further proceedings;
- Grant your petitioner sufficient time and leave to amend this petition to add additional claims and supporting affidavits factual material as his investigation continues;
- Grant your petitioner the authority to obtain subpoenas for witnesses documents and other discovery necessary to support the facts alleged in the petition, including but not limited to access to the evidentiary material admitted at trial to which petitioner and his counsel have not had access;
- Conduct an evidentiary hearing;
- Reverse petitioner’s conviction outright or order a new trial; and
- Grant such other and further relief as may be appropriate.
Thomas 0 McCulloch
DeKalb County Public Defender