CERIALE CASE ENDS IN MISTRIAL

After watching a divided and emotional jury struggle for 10 days, a Cook County judge abruptly declared a mistrial Thursday in the case of a man accused of gunning down Chicago Police Officer Michael Ceriale.

Over objections of prosecutors and defense lawyers, Judge Dennis Porter stopped the trial, saying he believed allowing the jury to continue “would be futile.”

A case that began with a single shot that killed a rookie patrolman on an August night in 1998, ended with a decision by a judge that offered no relief to police officers or Ceriale’s family who watched with increasing anxiety as the dramatic five-week trial unfolded.

“We will be back again for the next trial,” said Bill Nolan, president of the Fraternal Order of Police. “We’re disappointed, but we can’t fault the jury. Evidently, they just had a holdout.”

For the last few days, the jury had been sending mixed signals to the judge in a series of notes about whether they were deadlocked. By last Saturday, the jury indicated the split was 11-1.

But the judge each time sent back instructions that they keep deliberating, even after the foreman sent a note accusing one juror of failing to disclose a drug arrest and failing to deliberate in good faith.

On Thursday, Porter finally ended the case without asking the jury whether they believed additional deliberations would yield a verdict.

“It’s originally been my feeling, especially after the deliberations continued for an extended period of time, that the jury should be given every opportunity to reach a verdict on all the counts,” Porter said.

“However, it is now the 10th day of deliberations. They have indicated that there has been no change or no movement for some time now,” he said. Prosecutors said they plan to immediately retry Jonathan Tolliver, 19, on the first-degree murder charge. But some legal experts said the way the case ended–with the judge instead of the jury deciding there was a deadlock–could create legal problems for prosecutors trying Tolliver a second time.

Though the jury couldn’t reach a verdict on the murder charge, it did convict Tolliver of possession of cocaine for a drug arrest three days before Ceriale was shot outside of 4101 S. Federal St. Tolliver, a reputed gang member who was 16 at the time of the shooting, was acquitted of two drug conspiracy charges.

For the families of Ceriale and Tolliver and the scores of police officers who closely watched the trial and anxiously awaited the verdict, the prospect of a second trial was unsettling.

“I don’t know what to think right now,” said Tolliver’s mother, Shewanda. “I don’t know what to feel.”

Ceriale’s father, Tony, who met with the jurors after court recessed, praised most of the jury while offering a veiled criticism of the lone holdout.

“I just want to tell you that the 11 jurors were magnificent,” he said. “They worked their heads off on this case to bring out the truth. They were just fantastic.”

Ceriale’s partner, Joe Ferenzi, who was with Ceriale on a drug stakeout the night of the shooting, declined to comment other than to say that he would be back for the retrial. Ferenzi was in court every day during the trial, which began with jury selection on Jan. 4.

Most officers who gathered at the courthouse shared a common sentiment: frustration that the Ceriale family would have to go through another trial.”I think it’s a travesty that officer Ceriale’s family will be victimized again with a retrial,” said Englewood District Patrol Officer Nick Cortesi, who has been a police officer for five years. “Being police officers, we all support each other and feel the family’s pain. We all know it could have been one of us.”

Prosecutors James McKay, Michael Smith and Jim Byrne declined to comment, and State’s Atty. Richard Devine only released a prepared statement in which he said: “We stand ready for the retrial at the earliest date set by this court.”

Richard Steinken, who with Melissa Brown defended Tolliver, said the public had essentially convicted Tolliver without cause.

“Jonathan didn’t do it. He wasn’t there. In this city, where newspapers have got stories about actions by the police that are under scrutiny, I find it hard to understand how everybody in this case thought what the police said was gospel,” Steinken said.

Steinken declined to say whether he would challenge a second prosecution of Tolliver.

But some legal experts said one basis for contesting a second trial would be that trying Tolliver again would amount to trying him for the same crime twice, legally considered double jeopardy.

Judges have wide discretion to decide when a jury is deadlocked and appeals courts don’t normally second-guess those decisions, experts said.

At the same time, the judge’s decision to declare a mistrial without an unequivocal statement from the jurors that they were deadlocked allows Tolliver’s attorneys to argue that the mistrial wasn’t necessary and that a second trial would amount to trying Tolliver twice for the same offense.

“There will be room for him to litigate this on appeal,” said Ralph Ruebner, a professor at John Marshall Law School. “Not everyone was willing to say, `We’re deadlocked.’ … It may have been premature.”

But John Decker, a law professor at DePaul University, said judges can declare mistrials without a specific statement from a jury foreman declaring a deadlock.

The U.S. Supreme Court has given judges wide latitude on when they can decide that a jury is deadlocked and declare a mistrial.

In a key opinion on the question in 1978, the court said that allowing a jury to deliberate for too long creates “a significant risk that a verdict may result from pressure inherent in the situation rather than the considered judgment of the jurors.”

The opinion gives wide lattitude to judges to determine when a mistrial is appropriate. Judges have even declared that jurors are deadlocked after only 12 hours of deliberations.

The jury in the Tolliver case deliberated for about 70 hours before the judge stopped them.

After four days meeting behind closed doors, the jurors had agreed on verdicts for the three drug counts against Tolliver, but said they were struggling to reach a verdict on the most serious charge–murder.

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They requested transcripts of nearly every witness who had testified. They also asked for guidance to overcome the impasse that had emerged. “We are having the same argument over and over,” one note from the foreman read.

At one point six days into deliberations, the judge apparently thought he sensed such definitiveness from the jurors and seemed poised to announce a mistrial.

The foreman had sent out this note: “I do not feel that we are coming any closer to reaching a unanimous verdict. … Nothing I do seems to bring us all together.”

With that, the judge indicated that there would be an announcement in the case, prompting more than 200 police officers to flood to the courtroom, apparently in the belief that some conclusion to the case would be announced.

Then, another note arrived. “… We are willing and eager to continue our deliberations,” the foreman wrote. So, with an overflow crowd of officers looking on, the jurors filed into the courtroom where they were told they should go back to deliberating. Tensions were high. Looking out at the crowd that included Ceriale’s partner and his father, one juror wept.

But it was a note from the jury late Wednesday that illustrated how deadlocked the jury was. A juror, in a personal note to the judge, asked: “Seeing as how we are required to have a unanimous decision to reach a verdict, do we also need a unanimous decision by all jurors that we are deadlocked.?”

From the start, the case was difficult.

Prosecutors had no physical evidence against Tolliver in the 1998 shooting of Ceriale, who had been conducting surveillance of a drug operation in the Robert Taylor Homes public housing complex.

Though police said they found the gun used to shoot the officer, they had trouble linking it directly to Tolliver. Experts who examined Tolliver’s hands and clothes for signs that he fired a weapon could not say conclusively that he had.

Instead, prosecutors relied on statements that seven witnesses made to police and to a grand jury. The statements implicated Tolliver and three others who are still to be tried.

Among those key witnesses, Tameesha Bolden, who was 14 at the time of the shooting, told a grand jury that Tolliver “aimed straight [at Ceriale] and pointed and shot once.” Another witness, Lacole Dismuke, told police that Tolliver had stashed the gun in her apartment and that another suspect retrieved it later, according to police.

But by the time those witnesses testified at the trial last month, the stories changed. The witnesses maintained their original statements had been coerced by police and prosecutors.

That left the jury to weigh the credibility of the witnesses against that of the investigators who had interviewed them. The jury also had the transcripts of the grand jury testimony to consider.

Had police pressured and even beaten the witnesses, as they claimed, to get them to blame Tolliver? Or were the seven lying in court out of allegiance to Tolliver, the Gangster Disciples, or out of fear for their own safety.

The jurors faced other conflicting testimony too, as several defense witnesses said Tolliver was at a party, dancing, at the same time Ceriale was shot. But those descriptions, too, included sometimes contradictory details of the party by different witnesses.

But the biggest problem with Tolliver’s alibi was that his hands were not marked with the Magic Marker or stamp the host of the party said she had placed on the hands of party guests after they paid admission, according to a forensic investigator who had seen Tolliver’s hands after the shooting.

Perhaps some of the most emotional testimony came from Ceriale’s partner, Ferenzi, who testified early in the trial that he was able to identify the gunman from a distance of 60 to 80 feet away by the clothes he was wearing–a bright orange shirt and orange baseball cap.

That’s what Tolliver was wearing when he was arrested 30 minutes after the shooting, near the scene of the crime, prosecutors and defense lawyers say.

After the arrest, Ferenzi looked into the police car where Tolliver was crouched in the back seat and told officers: “That’s the hat, that’s the shirt, those are the pants, I didn’t see his face but that’s the shooter,” Ferenzi testified in court.

The trial also exposed the intricacies of the Gangster Disciples street gang.

A prosecution expert portrayed the gang as a well-oiled subculture, operating its lucrative drug business like a sophisticated corporation with a board of directors, and other officials, including “governors,” “regents” and “coordinators.

At the bottom of the gang’s hierarchy of officials were people like Tolliver–mostly juveniles who act as foot soldiers, prosecutors said. Some armed, others unarmed, the foot soldiers secure the gang’s turf, look out for trouble and sell small packets of heroin, cocaine and marijuana, according to prosecution testimony.

Still awaiting trial in connection with the Aug. 15, 1998, shooting are Robert Brandt, 20; George Alexander, 21; and Willie Hunter, 27. Brandt is scheduled for trial in April. Hunter and Alexander are scheduled to be tried together later in the year.