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December 10, 2012

Unique sentencing issues raised in Illinois sentencing 55 years after child's murder

This remarkable state sentencing story out of Illinois, which is headlined "73-year-old faces sentencing Monday for murdering girl in 1957," sound more like the script from a B-movie or an evil sentencing professor's final exam question than a real case.  But here are the reported facts, which raise so many notable sentencing questions:

His sentencing Monday for the 1957 murder of 7-year-old Maria Ridulph will send a powerful message that no killing is ever too old to solve.  That’s what relatives of the slain Sycamore girl think will come from the decades-delayed prosecution of Jack McCullough, 73.

“It’s going to give hope to people who are looking for conclusions in old cases,” said Charles Ridulph, Maria’s older brother. “I think people will stop and look at old cases in a new light.”

McCullough wasn’t charged until 2011 with the kidnapping and killing of the Sycamore girl in 1957 as she played near her home in the small DeKalb County farm town.  The former Sycamore resident and onetime cop was found guilty in September in a trial that was one of the oldest murder prosecutions in the United States, authorities have said.

On Monday, under 1957 sentencing laws, McCullough will face a minimum 14-year prison term and could receive a life sentence.  He would be eligible for parole in less than 11 years.

McCullough’s attorney and several relatives take a radically different view of the time that passed, contending the long gap between the girl’s death and his arrest is the only reason he was charged or convicted.  McCullough’s attorney is highlighting that issue in asking Judge James Hallock to throw out the murder conviction.

Though that legal longshot is likely to fail — Hallock heard the case without a jury and delivered the verdict — the timing of the charges is likely to be the critical issue when McCullough appeals his conviction and whatever sentence he receives.

Most witnesses had long since died by the time McCullough was charged. So prosecutors relied largely on hearsay evidence, testimony from jailhouse snitches and Maria’s childhood friend’s identification of a 1950s photo of McCullough as the man with whom she last saw Maria.  The lack of living witnesses, including FBI agents who investigated Maria’s disappearance on Dec. 3, 1957, severely hampered McCullough’s defense, his attorney and a family member say.

Without those witnesses, crucial police reports and other information from the original investigation into Maria’s disappearance and death were barred from McCullough’s trial. “If he was brought to trial 20 years ago, when some of those people were alive, it would never have gone this far,” said his stepdaughter, Janey O’Connor....

Before he is sentenced Monday, McCullough will tell Hallock that he didn’t kill Maria. He won’t ask for any specific sentence.  “What’s the appropriate sentence for an innocent man?” attorney McCulloch asked.

O’Connor is pinning her hopes on her stepfather ultimately winning his appeal and his freedom, but she worries about how long that process could take. “I’m really hopeful,” O’Connor said. “But at his age, how long will he have to wait?”

This AP story about the case provides more notable details on the 1957 crime and also concerning what the defendant has been doing since it happened:

During the trial, prosecutors contended that on Dec. 3, 1957, a 17-year-old McCullough, who was known as John Tessier at the time, approached Maria and another girl playing in front of Maria's house.  He played with them for a bit and when the other girl ran home to get her mittens, prosecutors said he dragged Maria into an alley choked her with a wire, and then stabbed her in the throat and chest.  Then, prosecutors said, he loaded her body into his car and drove more than 100 miles away, where he dumped it into a wooded area.

Her disappearance and the subsequent massive search made national headlines, and it was said that President Dwight Eisenhower and FBI Director J. Edgar Hoover were asking for regular updates on the case. Maria's body was found in April 1958.

McCullough was one of more than 100 people who were briefly suspects, but he had what seemed like a solid alibi. On the day of the girl vanished, he told investigators, he'd been traveling to Chicago for a medical exam before joining the Air Force. McCullough ultimately settled in Seattle and was a Washington state police officer.

These facts sound a bit an evil sentencing professor's final exam question in part because, even putting aside the innocence issues, the details of the crime and aftermath raise a number of modern "hot topic" sentencing issues. For starters, though the defendant is now a (healthy?) senior citizen, he was a juvenile at the time of the 1957 crime. Not only does his elderly status now raise issues about whether his current age is relevant at his sentence, but his juvenile status at the time of the crime raises constitutional issues in light of the Supreme Court's work in Graham and Miller.

Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.

These issues not only complicate the today's planned sentencing, but also whether this defendant will be granted bail pending appeal. I do not know Illinois law or procedure well enough to know if a murder conviction makes bail impossible, but I do know that there are surely enough appeal issues here that whether the defendant gets bail pending appeal may impact whether he dies free or in prison more than whatever sentence gets handed down.

UPDATE:  This local story on today's sentencing reports that "A man found guilty of murdering a 7-year-old in Sycamore in 1957 was sentenced to natural life in prison this morning in DeKalb County Court." Here is more on the proceedings:

McCullough remained defiant today, making a 13-minute statement in which he denied committing the murder. He also said that FBI records proved he could not have committed the murder. Those records were ruled inadmissable in pre-trial rulings by Judge James Hallock....

Clay Campbell, the former state's attorney who prosecuted McCullough, called his courtroom statement "self-serving nonsense."

McCullough chose to be sentenced under the law as it existed in 1957. That means that he could, in theory, be eligible for parole in 20 years.

I find a bit peculiar the report that the defendant here "chose to be sentenced under the law as it existed in 1957"; which law applies at a delayed sentencing should not, in my view, generally be subject to "selection" by the defendant.  Moreover, I suspect that Illinois had the death penalty for aggravated murder back in 1957, so I am not sure it is accurate to report that McCullough was "sentenced under the law as it existed in 1957."

December 10, 2012 at 11:11 AM | Permalink

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/ / / McCullough...had what seemed like a solid alibi.
On the day of the girl vanished, he told investigators, he'd been traveling to Chicago
for a medical exam before joining the Air Force." \ \ \

-> "A deathbed accusation by [Jack] McCullough's mother in 1994...that she knew her son killed the girl"
-> "His mother, Eileen Tessier, had lied to police...in 1957 about her son's whereabouts, buttressing his alibi"
-> "McCullough's girlfriend in the 1950s, reinterviewed in 2010, also contacted police with evidence calling his alibi into question. She had found his unused train ticket to Chicago"

--> "[McCullough's] sister described the multicolored sweater of the accused, which the victim's friend still vividly remembers"
--> "Maria's friend, Chapman, picked out McCullough as the teen who identified himself as "Johnny" while the girls were playing, wearing a multicolored sweater.”
[known at that time by the name John Tessier]

-> "His parents told the [FBI] agent John Tessier had been at a military recruiting station in Rockford......[whereas] a friend who was interviewed in 2010 places him in town."
-> "On Dec. 6, 1957, an anonymous caller to the DeKalb County Sheriff’s Office said a boy named “Treschner,” about 20 years old, lived in the neighborhood and matched Johnny’s description... Deputies found that “Treschner” was John Tessier, who lived at 227 Center Cross St., close to where Maria disappeared."
-> "McCullough's sister, listed in court documents as Kathy...told authorities that the night Maria disappeared, she had a 4-H meeting and that Ralph Tessier dropped her off at the meeting...which would not have allowed him to drive to Rockford to pick up John [McCullough], refuting the alibi."

http://www.daily-chronicle.com/mobile/article.xml/articles/2011/07/03/69895838/index.xml
http://www.vancouversun.com/

Posted by: Adamakis | Dec 10, 2012 12:58:51 PM

&- "The half dozen relatives of McCullough at the trial all said they wanted a guilty verdict....Members of the McCullough and Ridulph families hugged each other"

&- "His half-sister Janet Tessier...spoke with her eyes still red from tears."He is as evil as prosecutors painted — and some...I'm so sorry it took so long."

-&- "The court documents also allege that as a teenager, John Tessier sexually abused several girls in the Sycamore area.

-&- Court documents also show he admitted when questioned in 1957 that he had engaged in “sex play” with a girl...as well as claims from a girl that he “habitually molested her outdoors behind tall bushes,” according to the affidavit."

-&- "McCullough also was accused in 1983 of sexually assaulting a runaway girl in Washington."

" "and be sure your sin will find you out" "

Posted by: Adamakis | Dec 10, 2012 1:02:36 PM

If he asked to be sentenced under the law the court proceded to use, he has no sentencing appeal. Probably the oldest rule of appellate lawyering is that you can't appeal when you got what you asked for.

Posted by: Bill Otis | Dec 10, 2012 7:04:08 PM

Why did he change his name after the murder? That would seem quite suspicious.

Posted by: alpino | Dec 11, 2012 2:14:21 AM

As an Evidence professor I wonder what hearsay exception applies to a mother on her deathbed accusing her son, the defendant.
As to D "choosing" his sentencing law, I've always wondered on what statutory basis defendants were given life sentences, having been convicted of mandatory death crimes, and then being subject to the Supreme Court decision holding capital punishment as then administered was unconstitutional. Where did authority for sentencing them to life come from?

Posted by: Peter Lushing | Dec 11, 2012 10:56:18 AM

P. Lushing:

Above and besides the deathbed accusation, there is formidable evidence galore.

Your best hope is for a 'Casey Anthony' jury, one who has their "own truth", demands DNA, a confession, and youtube "proof", and who fondly recall the days of
Abe Lincoln fighting to end the death penalty, and
MLK Jr. fighting for same-sex "marriage".

http://www.daily-chronicle.com/mobile/
article.xml/articles/2011/07/03/69895838/index.xml

Posted by: Adamakis | Dec 11, 2012 1:30:57 PM

Name change: Jack changed his name on 4/27/1994 after his step father died, to his mother's maiden name. He applied for this change at the same time he applied for a marriage license.

http://146.129.54.93:8193/imgcache/OPR199405160289-1-1.pdf

I am son-in-law to Jack.

Posted by: Casey Porter | Dec 11, 2012 6:03:37 PM

Peter Lushing --

"As to D 'choosing' his sentencing law, I've always wondered on what statutory basis defendants were given life sentences, having been convicted of mandatory death crimes, and then being subject to the Supreme Court decision holding capital punishment as then administered was unconstitutional. Where did authority for sentencing them to life come from?"

For appeal purposes, it doesn't make any difference. The defendant explicitly waived the issue; indeed, he went further and asked for utilization of the law under which he was sentenced.

It might make an interesting classroom discussion, but for litigation purposes, it's a dead letter. You can't appeal the trial court's decision to GRANT your request.

Posted by: Bill Otis | Dec 11, 2012 8:08:34 PM

You can bill this is AMERICAN! The land of lawyers and lawsuits. You can take Anything to court no matter how stupid and useless.

Posted by: rodsmith | Dec 12, 2012 7:04:40 PM

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