When a jury declared Allison Jenkins guilty of murder earlier this month, his face twisted into a grimace. ”What?” he exclaimed.
A short time later, Andrea Grannum walked out of the Criminal Courts Building ahead of her 11 fellow jurors, tears streaming down her face. She feared that she had helped to convict a man of murder whose real crime was something far less.
Jenkins, 29, was found guilty of the murder of a police officer, though he had never pulled the trigger. The officer, Jay Brunkella, had been shot by his partner.
But prosecutors said Jenkins had struggled during an arrest for possession of marijuana, causing the partner`s gun to fire and kill Brunkella. Jenkins was therefore guilty under Illinois` ”felony murder” law, they said. In essence, Jenkins` physical struggle with police during his arrest changed his initial crime from a misdemeanor to a felony. And the law holds felons responsible for deaths that occur during forcible felonies.
The case was highly unusual. And from the start, it was baffling to Jenkins.
”I`m basically average, you know, there are certain things I believe in,” Jenkins said in an interview in Cook County Jail after the verdict.
”One thing that really, really puzzles me-how can they charge me with a murder I didn`t commit?
”How can a man not have a gun and be found guilty of murder? The question is there, How can it be done?”
It is a question that legal scholars have pondered for decades-a question that even some of Brunkella`s fellow officers have asked themselves.
Allison Jenkins, a native of Belize, was not an unfamiliar character to police in the Rogers Park district. Characterized by officers as ”a nickel-and-dime marijuana man” who occasionally sold small quantities of drugs, at the time of the shooting he was out on bond, awaiting trial on a charge of selling 3 grams of cocaine to an undercover police officer.
Jenkins recognized officer Jay Brunkella as Brunkella and his partner, Fred Hattenberger, approached him outside a Rogers Park elementary school on Sept. 22, 1986, to arrest him for possession of marijuana, court testimony shows.
During Jenkins` trial, Hattenberger testified that he pulled his .45 Colt revolver and that Jenkins ran. Hattenberger said that when he caught Jenkins, the suspect still resisted arrest, struggling and then striking him in the chest with his elbow-a blow that he said left a bruise. Hattenberger said he lost his balance and the two men fell. His finger accidentally pulled the trigger; the bullet struck Brunkella, 39, who died two weeks later without regaining consciousness.
The felony-murder law that Jenkins is charged with violating is based in English common law, said Norval Morris, a University of Chicago professor of law and criminology. It stems from the premise that ”if you embark on a forcible felony (in Jenkins` case, aggravated battery on a police officer), you`re risking life” and are responsible if someone dies, he said.
Typically, the law applies to armed-robbery murders or rape-murders. In more unusual cases, though, it can ”lead to results sort of out of line with our intuitive sense of justice,” said John Donohue, associate professor of law at Northwestern University.
Morris said Jenkins could argue that his actions weren`t ”as evil as having an intent to kill, and a rational system would distinguish between them.”
Britain itself abolished the rule in 1957, Donohue said. He said several other states have narrowed it so a felon is responsible only for a killing committed by his own hand or by his ”agent,” usually a codefendant.
”The most likely result around the country is that this (Jenkins`) case would not be felony murder,” he said.
The original felony that Jenkins was charged with is unusual in itself. His possession of the bag of marijuana would have been a misdemeanor. But Hattenberger said Jenkins fought him during the arrest. Had he fought a civilian in the same way, the charge would have been misdemeanor battery. But battery against a policeman becomes aggravated battery, a forcible felony.
Battery thus became aggravated battery; aggravated battery became felony murder. ”This type of application is really pushing the felony-murder doctrine to the limits,” Donohue said.
The state`s attorney`s office, though, is ”convinced that the charges we approved are appropriate,” spokeswoman Lisa Howard said.
”The law holds a felon responsible for his actions when he sets into motion a chain of events that causes the death of another person,” Howard said. ”The purpose of this law is to protect the community, the innocent, and to hold the felon accountable for any harm caused by his felonious activity.” From Donohue`s post at Northwestern, the case is ”a fascinating felony-murder situation.” To Jenkins, it`s a puzzle that has turned his life around. And to juror Andrea Grannum, a South Shore High School teacher, the case was an experience she wishes she never had.
Jenkins, who is black, said he believes he might not have been convicted had there been more than one black, Grannum, on the jury. Though Jenkins`
lawyer, Craig Katz, objected to the racial composition of the jury, Cook County Criminal Court Judge Joseph Urso ruled that there had been no deliberate racial exclusion.
As it turned out, Grannum was in jury deliberations for nine hours, arguing for Jenkins` acquittal. Finally, she gave in, she says.
”It`s a shame to say I needed support,” she said later. ”It`s a shame to say I couldn`t do it myself.”
Surrounded by her 11 fellow jurors, she said she finally surrendered to their mounting pressure to convict Jenkins. Even as she did, ”I tried to see it (as murder),” she said, ”but I just didn`t feel it.”
Jenkins had testified that he never elbowed Hattenberger in the first place-he said he was backing away from Hattenberger, saying, ”Don`t shoot,” when Hattenberger used the weapon to strike him and the gun went off. Jenkins thus contended that he hadn`t committed the felony required for the felony-murder charge.
Grannum said it wasn`t hard for her to believe that a policeman could do what Jenkins said he did-that officers sometimes used unnecessary force. But her fellow jurors, most of whom live in suburban areas, were skeptical.
”They were completely out of touch with reality-with the way things can be
(in the city) and are,” she said.
The other 11 jurors refused comment as they left the court, and the foreman later refused to discuss the case when reached at his home.
The night of the verdict, Grannum had a hard time concentrating on driving home. When she got there, she couldn`t sleep. The next morning, she talked to her clergyman. The next week, she called Judge Urso.
The verdict was wrong, she told the judge. As it turned out, she wasn`t the only one who thought so.
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By the time Grannum talked to the judge, another juror already had done so. That juror, Margaret Lynn Smith (who told The Tribune she wouldn`t comment publicly on the case until after sentencing), visited the crime scene to look at the distance between where the confrontation began and where the shooting occurred-she was curious about how far Jenkins would have had to back up;
Hattenberger said Jenkins was running, not backing. She told Urso she no longer thinks Jenkins is guilty.
Ironically, the two jurors had support from some of Brunkella`s fellow officers. Within a week of the conviction, three police officers called Jenkins` lawyer, Katz, trying to help a man convicted of the murder of one of their own.
They talked with Katz about Hattenberger accidentally shooting another officer several years ago, an incident that Katz said he had heard of but wasn`t allowed to introduce at the trial. The Police Department refused to verify the information for The Tribune, and the officer who reportedly was shot would not comment.
Urso is not legally obligated to take any action based on jurors` changes of heart after the verdict. But in a motion for a new trial that Urso will rule on Friday at Jenkins` sentencing, Katz has included their statements and those of one policeman who says he saw Hattenberger strike a civilian last year ”without any provocation.”
During trial arguments, Assistant State`s Atty. Dennis Dernbach urged the jury to ”protect police officers who are protecting us. People need to know they can`t strike police officers. . . . Don`t tell the criminals and drug dealers that it`s all right to run, it`s all right to resist.”
Sgt. Thomas Spanos, head of Hattenberger`s and Brunkella`s tactical team, said that ”the (felony-murder) law is on the books, and if the elements are there, they can charge somebody. . . . I feel if (Jenkins`) actions resulted in someone`s death, he should be charged with it.”
But sources close to the case say that many of Brunkella`s fellow officers in the Rogers Park district and tactical team don`t blame Jenkins for the death.
”Truthfully, I don`t think he should have been found guilty, and that`s the feeling of most people who were working on the tact team, the people who knew Jay and knew Jenkins,” said one source in the Police Department.
”To be frank, I was surprised he was charged with murder. I was shocked he was found guilty. . . . He was wrong-he was out there dealing. He was guilty of narcotics violations but not murder.”
The police source said that ”95 percent of the policemen would have handled the situation differently (from Hattenberger). There`s a time and a place to unholster your revolver, and that wasn`t the time and place.”
Spanos, though, contended that only Hattenberger was in a position to judge that. ”Unless you yourself are in a situation on the street, nobody can say what you saw. . . . If they criticize him for taking out his gun, they`re wrong. If they support him for taking out his gun, they`re wrong. He made that decision because he was aware of everything around him.”
Spanos said that police knew about Jenkins, that he was one of many drug dealers who sold small bags of marijuana and sometimes cocaine outside the Stephen F. Gale Public School. Though police said they didn`t believe Jenkins routinely sold drugs to schoolchildren, the dealers at the school became so widely known that they attracted customers who drove in from the suburbs, he said.
Jenkins said he was stopped many times by police who were suspicious of his activities, though he was charged only once, for selling cocaine, which he was out on bond for at the time of the shooting. After Brunkella`s death, Jenkins was tried and convicted on the cocaine charge; he has been sentenced to six years in prison.
According to the Police Department`s policy on deadly force, a police officer shouldn`t chase a misdemeanor suspect with a cocked, loaded gun in his hand.
Brunkella`s widow, Carol, refused to discuss Jenkins` conviction. She has filed a lawsuit against the Police Department for allowing Hattenberger to carry a Colt .45, a model of gun known to have a very sensitive trigger, loaded with especially deadly hollow-point bullets. (Chicago police regulations allow officers a choice of secondary weapons-their primary weapon must be a .38-and a choice of types of ammunition.) The jury wasn`t allowed to hear of the lawsuit during the trial.
Though sources said that some of Brunkella`s fellow officers were angry at Hattenberger`s actions, they also sympathized with him. He was devastated at the shooting, they said, and sought counseling afterward.
Hattenberger has refused to discuss the case with the press.
By all accounts, Brunkella`s death was a loss to the department. Even Jenkins described him as a fair and honorable man.
Brunkella, he said, was ”someone who never did you wrong.”
If the conviction stands, Jenkins faces a minimum 20-year prison sentence; the maximum is life imprisonment.
In the meantime, he said that as he sits in jail, ”the hardest blow for me is not being with my kids and my family. . . . To me a man is a person who provides for his family, who has the respect of his family.
”I`m really sorry for his (Brunkella`s) wife. I know his wife probably looks at me and criticizes me. I understand how she feels.
”I understand he`s got a 16-year-old daughter. Here I am complaining about my kids, and I have hope of coming back to them. She has no hope.”
Jenkins laments the death of an honest cop. Yet he wonders what the jurors ”came up with that said I killed him. . . . I really want to know.”
Two jurors contacted at their homes Tuesday said their deliberations were never cut and dried.
Patricia Terrones said she and fellow jurors were torn by how to interpret the felony-murder law, specifically with Urso`s instructions to them about it. ”We had to go by that,” she said. ”Judge Urso gave us the arrangement of how to judge (Jenkins). We`d have to stick to that. But we had to read the law over a lot of times.”
Terrones said the jurors were ”very displeased” that Hattenberger had drawn his gun when he chased Jenkins. They felt that his actions were dangerous, she explained. ”One man on the jury said he used to handle guns. He said that (Hattenberger) shouldn`t have done that-drawn his gun. That shouldn`t have been permissible.”
Terrones and the other juror, who asked not to be named, said that had they known about Hattenberger`s past actions, it might have made a difference in their verdicts. ”I wish we would have known a little bit more,” the second juror said. ”There probably wasn`t enough presented to us. It would have made a difference.”
In the end, Terrones said, the jurors decided that Jenkins was not ”as guilty” of murder as a man who would pull out a gun and shoot someone but that he was guilty as charged.
Officer Tony Opiola, who worked with Brunkella`s tactical unit, refused comment on the Jenkins trial but didn`t hesitate to talk about Brunkella. ”He was a policeman`s policeman. . . . Jay did it all, no matter how small the job was or how big,” he said.
”It`s a tragedy, no doubt about it,” he said. ”Jay was the best. He was tops.”