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Road to dismissal: State's attorney kept McCullough in prison, then worked to free him

DeKalb County State's Attorney Richard Schmack looks into Judge William Brady's courtroom in the DeKalb County Courthouse in Sycamore with on Friday, April 22, 2016. Judge Brady formally dismissed McCullough's murder charges and the case will return in June to determine whether Schmack has a conflict in interest in prosecuting the case.
DeKalb County State's Attorney Richard Schmack looks into Judge William Brady's courtroom in the DeKalb County Courthouse in Sycamore with on Friday, April 22, 2016. Judge Brady formally dismissed McCullough's murder charges and the case will return in June to determine whether Schmack has a conflict in interest in prosecuting the case.

SYCAMORE – Before DeKalb County State’s Attorney Richard Schmack helped to free Jack McCullough, he helped to keep him in prison.

In 2014, McCullough was a convicted child murderer and Schmack was more than a year into his first term as state’s attorney. McCullough had appealed his 2012 conviction in the 1957 kidnapping and murder of 7-year-old Maria Ridulph of Sycamore, and the Illinois Second District Appellate Court was to hear the case.

Schmack’s office worked with appellate prosecutors to defend the conviction. Emails Schmack sent to the appellate prosecutors from April to July 2014 show that Schmack thought it was clear Maria had disappeared from the corner of Archie Place and Center Cross Street near her Sycamore home much later than 6 p.m., as the state had claimed at trial. But he never asked the appellate prosecutors to admit McCullough’s conviction was in error.

“I wasn’t convinced that the result was wrong at that point,” Schmack said in an interview. “I was simply convinced that ... there wasn’t anything in the evidence and there wasn’t anything said at trial that would cause one to think it had happened about 6 o’clock.”

Emails and letters obtained by the Daily Chronicle through a Freedom of Information Act request shed some light on how DeKalb County’s top prosecutor over time became convinced that McCullough, 76, was an innocent man.

Schmack’s doubts about the case began with the timeline the state presented – Maria was probably taken between 6:45 and 6:55 p.m., Schmack said, around the same time that McCullough was said to have made a collect call from Rockford to Sycamore.

But Schmack’s doubts eventually expanded to include the way that police and prosecutors had conducted their entire investigation, from guiding and coaching witnesses, disregarding evidence that pointed to McCullough’s innocence, and putting false and misleading information before judges and grand juries.

His suspicions would eventually lead to DeKalb County Judge William Brady’s order Friday to dismiss the murder charge against McCullough, leaving him free to return to Washington state almost five years after he was first arrested and jailed.

Revisions and concerns

McCullough, now 76, was convicted Sept. 14, 2012, by Kane County Associate Judge James Hallock, who barred the ancient police reports from 1957 and ’58 about the case from the trial. In finding McCullough guilty, he said he found the state’s witnesses, including jailhouse informants and eyewitness recollections of events from more than 50 years earlier, to be credible.

McCullough waited in prison as the appeal process began. The appellate prosecutors requested and received a 35-day extension from the initial due date for a brief.

As the new deadline, July 18, 2014, approached, appellate prosecutors sent Schmack a draft. He responded by sending them more than 40 pages of FBI records, which had been excluded from the 2012 trial but that he said showed the state’s 6 p.m. abduction time was wrong.

“It does not appear to me that anyone, let alone everyone, interviewed would have any motive to fabricate the time frame in the days immediately following the kidnapping,” Schmack wrote to Larry Bauer of the appellate prosecutor’s office. “For this reason, I could not be comfortable with having a brief filed in my office’s name which argues there is reliable evidence that it is even arguable that Maria Ridulph disappeared prior to 6:35.”

Changing one word solved the problem: They would say Maria had been kidnapped “after 6 p.m.,” instead of “about 6 p.m.”

In February 2015, the appellate court upheld McCullough’s murder conviction, but vacated two others.

The Illinois Supreme Court declined to take the case, and McCullough, in June 2015, filed a petition for post-conviction relief, what looked like his last legal option.

Substantial summer reading

As McCullough tried again, Schmack did a deep dive in the research. In summer 2015, he read the 4,334 pages of discovery information given to the public defender, and 2,700 pages of “ancient documents” – including those critical police reports from 1957 and ’58.

He also read transcripts from the 2012 trial, the 2010 and 2011 grand juries and the books “Piggyback” by Jeffrey Doty and “Footsteps in the Snow” by Charles Lachman.

In mid-September 2015, three years after McCullough’s conviction, DeKalb County Judge Robert Pilmer dismissed McCullough’s post-conviction appeal, calling it “frivolous and without merit.”

That was when Tom McCulloch had enough. McCulloch was named DeKalb County’s interim public defender Aug. 4, 2012, and defended McCullough at trial a little more than a month later. He thought Judge Hallock got it wrong in September 2012.

“I was so damn dumb that I thought the judge should find him not guilty at the trial,” McCulloch said, “and so some of those things just kind of grated on me.”

McCulloch has been an attorney since 1974. Before McCullough, his most famous client was Brian Dugan, a convicted murderer who sought to take responsibility for the 1983 murder of Jeanine Nicarico – but avoid the death chamber. McCulloch was Dugan’s attorney for more than 20 years starting in 1985. His fee: $1.

McCulloch said he expected the appellate court to send McCullough’s case back for a new trial, but it didn’t. When McCullough’s post-conviction appeal was denied, the attorney decided he had to step in.

This time his aim would be more traditional – free a man he thought not guilty from prison.

What he didn’t know yet was that Schmack had reached the same conclusion.

Defender, prosecutor find common ground

On Friday, Oct. 2, 2015, McCulloch sent Schmack a five-page letter that laid out in detail his case for McCullough’s innocence.

Many of the themes McCulloch touched on in his letter would later appear in Schmack’s March 24 filing declaring McCullough innocent.

As did Schmack, he pointed out the flaws in the state’s timeline for the crime. He also criticized the photo array shown to Kathy (Sigman) Chapman, Maria’s playmate who had seen the kidnapper at the intersection the night she disappeared. McCulloch said testimony from McCullough’s sister, Katheran Caulfield, conflicted with reports that police were informed of Maria’s disappearance after 8 p.m.

Caulfield testified she had come home from a Christmas party about 7 p.m. and saw police cars in the neighborhood.

“The claim of police vehicles in the area an hour earlier was simply wrong,” McCulloch wrote.

McCulloch wrote that two grand juries had been given false and misleading information by police, that jailhouse informants who testified against McCullough at trial had been contradictory and possibly coached by police. The public defender also noted the irony that the statement from McCullough’s mother, Eileen Tessier, that “John did it,” which had been the impetus for re-opening the case, was found inadmissible by the appellate court.

McCullough was innocent, and the public defender said he planned to make the court see that. He wanted to be sure, however, that Schmack wouldn’t object.

Schmack’s response, a seven-page letter sent Oct. 5, 2015, was more than McCulloch had hoped for.

Not only did Schmack agree with McCulloch’s conclusions, but he said he considered it his ethical obligation to report what he considered a false conviction to the court.

Schmack would not object to McCulloch’s involvement in the case. As it turned out, help from the public defender’s office would be critical.

More online

To see some of the documents obtained by the Daily Chronicle in a FOIA request, including letters exchanged by State’s Attorney Richard Schmack and Public Defender Tom McCulloch, log on to Daily-Chronicle.com.

Coming Monday

Rebuffed by police, Richard Schmack turns to the public defender’s office to help him test Jack McCullough’s alibi – and the testimony of witnesses at the 2012 trial.

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