In the mountain of transcripts that comprise the official record of the five-week trial of the man accused of killing Chicago Police Officer Michael Ceriale lie the keys to the outcome of the state’s next attempt to convict him, legal experts said.
Lawyers for both the prosecution and defense preparing for the retrial of Jonathan Tolliver, 19, will scrutinize the written record of the unusual first trial as if cramming for a final exam, searching for hindsight that will illuminate what may have been lost in the heat of courtroom battle.
Line by line, they will look for inconsistencies in the testimony of the opposing witnesses and those they put on the stand themselves. They will make decisions about which of their witnesses hurt, rather than helped, their case, and they will look for better ways to discredit opposition witnesses who did them harm.
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Each side will have plenty of time to bone up: It will likely be months or even years before a retrial takes place, and prosecutors might be at a slight disadvantage, legal experts said.
“There’s a certain energy that goes into it and after a certain point, it’s hard to recreate that,” said Scott Nelson, a former Cook County prosecutor who successfully prosecuted Ramon Chavez, accused of killing two police officers.
The passage of time brings other risks as well: witnesses, many of them hostile and reluctant in this case, may disappear. Other witnesses’ memories may fade.
“Prosecutors usually put on the same witnesses,” said John Barsanti, a former Kane County prosecutor who recently prosecuted a murder-for-hire case successfully after the first trial resulted in a hung jury. “There’s not much different that you do. You don’t usually develop more evidence.”
The state’s evidence against Tolliver could pose unique obstacles for a retrial. The case was centered on the testimony of several reputed gang members or associates who implicated Tolliver in signed statements to police and in testimony before a grand jury 48 hours after the Aug. 15, 1998, shooting of the rookie police officer.
But once on the witness stand, they recanted their grand jury testimony and said they were forced by police to accuse Tolliver.
The Tolliver case ended Thursday after Cook County Judge Dennis Porter declared a mistrial, ending 10 days of deliberations by a jury split 11-1 in favor of conviction.
Prosecutors, who had to arrest many of the hostile witnesses to compel them to come to court, asked for an immediate retrial.
Though Tolliver, who has been in jail since his arrest on the day Ceriale was shot, has an interest in a speedy trial, his lawyers could try to prevent a second trial by claiming the judge improperly declared a mistrial without a definitive statement from jurors that they were deadlocked.
If the defense employs this strategy and raises a double jeopardy claim–which bars a defendant from being tried twice for the same alleged offense–it could be more than a year before the legal dust settles with a ruling from the appellate courts.
In addition, the defense may seek to have the case tried in a different jurisdiction, claiming that prospective jurors have been tainted by the publicity of the first trial, experts noted.
The prospect of a plea agreement doesn’t strike most legal observers as likely.
From the beginning, Tolliver has maintained his innocence. And any offer of leniency to a police-slaying suspect from prosecutors in exchange for a guilty plea would likely anger police, the experts said.
But the 11-1 split in the first trial might boost prosecutors’ confidence, said Jack Rimland, president of the Illinois Association of Criminal Defense Lawyers, although they could fall short of winning a conviction in the next round too.
“There’s a big distrust out there for police officers … especially from minority communities,” Rimland said. “There’s no question that [a split jury] could happen all over again.”
The law does not limit the number of times the state can retry a defendant after a hung jury.
The first task that lawyers on both sides of the case will likely do to prepare for retrial is to talk to jurors about their views of the case.
“I would want to talk to the jurors to get an idea from them: What did you like? What didn’t you like? Was there anything about me you didn’t like? [About] my client’s attitude in the courtroom? How did you perceive the different witnesses?” Rimland said.
After interviewing jurors, prosecutors and defense lawyers will likely scrutinize the transcript with colleagues who took no part in the first case, looking for weak points or ideas for a new strategy, legal experts said.
“Transcripts are extraordinarily helpful,” said Sam Adam, a veteran defense lawyer in Chicago. “Now, you’re able to read what witness 1 and 2 said in light of what witness 8 and 10 said, and you can find inconsistencies and weaknesses.”
At the same time, prosecutors can do additional investigation based on what they have learned at trial. In some cases, “it’s a great opportunity for the state to go out and try to break down that alibi,” Rimland said. “They have the opportunity to go back over times, dates, places and people” relevant to a defendant’s claim that he or she was somewhere else.
Both sides also will likely reconsider their strategy on jury selection.
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“You get a wild hare on the jury sometimes and you can’t see it coming,” Barsanti said.