07: Inflammatory Purpose

The trial continues and the evidence presented seems to be more prejudicial than probative.

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Episode Transcript

(00:10):
The police didn't know what they hadin their hands. They didn't know if
it was a kidnapping or a crime, or just a runaway or whatever.
And by the time they knew thatthey had a murderer, by the time
real law enforcement got involved, itwas too late. Only under the rarest

(00:30):
of circumstances should photographs ever be introducedinto the trial, particularly a retally murdered
child. That's just, you know, unconscionability. The jury has has to
see that, and of course it'shighly inflammatory and prejudicial. I give the

(00:51):
prosecutors high marks and timing and techniquelow marks on getting the right person to
face just Ye hosted by Emily G. Thompson and Eleen McFarlane, This is

(01:17):
the Shattered Window. The second weekof the trial focused quite heavily on the
forensic evidence involved in the case.One of the most luried moments of the
trial came when Cook County Medical ExaminerRobert J. Stein took to the stand

(01:41):
to detail Jacqueline's injuries and showed photographsof her decomposed body. Judge Richard Neville
had warned the jury that the photographswould be distasteful, but said that they
were necessary evidence. As the photographswere displayed, and as doctor Stein testified,
Cynthia and David opted to the room. They stood on the stairwile outside

(02:02):
and stop quietly. Unsurprisingly, thejurors reacted strongly to the photographs. One
juror concealed her eyes as another coveredher mouth in disbelief. Doctor Stein said
that the large portions of Jacqueline's bodywere far to decompose by the time the
autopsy was performed on the fifteenth ofSeptember nineteen eighty eight. There has always

(02:23):
been much debate over the admissibility ofgraphic photographs of the victim during murder trials.
It is commonly known that such photographswill inflame the juror so severely the
defendant will be deprived fair trial.In fact, if the photographs lack pervaded
value, and we'll do little otherthan bring prejudice to the jury, then
they should be excluded from evidence duringthe trial. Despite the fact that the

(02:47):
graphic photographs of Jacqueline lacked probitive value, they were still presented the jury.
We spoke rob wardon about this.Whereisication for a jury ever to be shown
photographs because the fact that the murderoccurred, is not in dispute. That

(03:07):
is basically stipulated to show the photographs, and unless there's some relevance to show,
say the mode of the murder orsomething that that I mean, and
even one that's questionable. I justbasically think photographs such ruder should be uh

(03:29):
well, only in the under therarest of circumstances should photographs ever be introduced
into the trial, particularly a reallymurdered child. That's just you know,
unconscionable that a jury has has tosee that, and of course it's highly
inflammatory and prejudicial. We also spokewith lawyer Bob Boiman. Their timing was

(03:53):
impeccable. They on a Friday,just before the jury was recessing for the
weekend. That's the time put inthe thirty seven or whatever the number was,
Bruce and autopsy photos. So thelast thing the jury saw over before
spending a weekend stewing in it wasmultiple pictures of this beautiful little girl as

(04:17):
a maggot infested corpse. How couldthat not affect a human being? Was
being asked, now, do youwant to give just as you know?
So I give the prosecutors high marksand timing and technique low marks on getting
the right person to face justice.Doctor Stein described the jury that due to

(04:39):
the temperature and humidity at the timeof Jacklylin's disappearance, her decomposition was in
the reasonable stage for a five anda half day period. He detailed her
Jacklin's neck was too decomposed to showany medical evidence of strangulation. What said,
the fact that a rope was foundrot tightly around her neck was evidence
enough. He also described her lessdecomposed portions of her body, including her

(05:00):
arms, legs, and hands,showed no evidence of binding, and said
that her head showed no indication oftrauma or fractures. Additionally, he said
that there was no evidence that hermouth had been gagged or taped. In
terms of sexual abuse, doctor Steinsaid that he could not rule it in
or rule it out due to thefact that Jacklin's body was so decomposed.

(05:21):
Under cross examination, attorney Hyman askeddoctor Stein whether theoretically Jacklin could have been
dead only four days at the timeof the autopsy, which would have placed
her death after the time that EverettMann had testified that he saw David at
the crime scene. Doctor Stein confirmedthat it was possible adding that it could
have been four days, six days, or even eight days. Following doctor

(05:44):
Stein's testimony, a number of reporters, including Paul Hogan, wrote about the
inflammatory nature of the graphic photographs.His testimony had been at the end of
the week, meaning that jurors hadto go home and mull over what they
had seen, the sight of alittle girl decomposed beyond recognition among the weeds.
Jenny Hann, a forensic scientist atthe Illinois State Police Crime Lab,

(06:06):
testified that she had discovered blood underseven of Jacqueline's fingernails and that were blood
type O, the same blood typeas Jacqueline, Her mother, and her
brother. Jacqueline had blood type A. Two small blood stains had been found
on Jacqueline's pillow, and Hand testifiedthat these two were blood type O.

(06:27):
The prosecution failed to question Hand regardingthe age of the blood stains, but
it had been determined that the stainswere old. The prosecution quickly switched from
the blood evidence to the forensic examinationhad been conducted on rectile and vaginal swabs.
Hannah informed the court room that bothhad tested negative for blood and seamen.
She also testified that she had discoveredhairs in the trunk of the Wallaby

(06:50):
car which were visibly comparable to Jacklin's. Jacqueline's underwear and the pajamas could not
be forensically examined due to weathering maggotpredation. However, several strands of brown
hair, presumably from Jacklin's head werediscovered inside the underwear, alongside a Caucasian
pubic care which had not come fromJacklin. Under cross examination from metcheck Hand

(07:15):
said that a hair been found onthe rope that was found wound around Jacklin's
neck. This hair could not havecome from a Caucasian person. The testimony
next focused on fiber transfer. Hanconfirmed that she found no evidence of fibers
from the mat in the trunk ofthe Wallaby's car on Jackline's nightgown. She
also admitted that she had not comparedthe hair found in the trunk with Cynthia's

(07:35):
hair, despite the fact that awhite hairnet belonged to Cynthia was also discovered
inside the trunk. While the testimonyfrom Hann and cross examination by Metchick raised
many questions as to whether the hareintertwined in the rope could have come from
Hernandez, the testimony from Ralph Mayerwhich followed would eliminate that doubt. When
he took to the witness stand,he told the courtroom that the hair could

(07:58):
not have come from Hernandez. Theyare also testified in regards to Harris that
had been discovered on the map inthe trunk of Wallaby's car, as well
as harry taken from the bedspread foundwith jack Lane. He examined two microscopic
slides and searched for a fiber transferbetween the mat and the bedspread to see
if there was any transfer. Forsuch a transfer to occur, there would

(08:18):
have had to be in contact betweenboth items. He told the jury.
In my opinion, I did notobserve any fiber transfer between the black matt
and the sheet. Up until thispoint in the trial, many people had
believed that there was some kind offiber transfer evidence that linked Cynthia and David
to the murder. In fact,Channel sevenths Dick Johnson had beruneously reported that

(08:39):
the prosecution would be presenting some darningevidence in the form of fiber transfer,
but this testimony proved otherwise. Onthe morning that Jacklin was reported missing,
investigators noticed that her bed sheets weremissing from her bed. Cynthia told them
that she had washed the sheets thenight before, which she had been too
busy to put the clean sheets on, meaning that Jacklin slept in a strict

(09:00):
bed. This was something that theprosecution focused on throughout the trial. They
argued that the bed had been strippedafter Cynthia and David killed Jacklin in an
attempt to cover up the crime.However, their theory was counteracted by the
Duallabies next to her neighbor, MaryTalbert. But Mary testified. She said
that when she went out to hangout her own washing on the ninth of

(09:20):
September, she noticed that Duwallabies hadalready had their sheets hanging up on the
line. Furthermore, the sheets weren'tjust Jacklins. She spotted several bed sheets,
including one with little blue and redprints that she positively identified as belonging
to Davy. She said that therewas another sheet with the little Prince,
but she couldn't positively identify them.Mary told the jury that the ninth of

(09:43):
September had been a pleasant day,so she spent most of the day in
her back guard mother daughter Megan.She noted that when she brought her own
sheets in that evening, the duallabiessheets were still outside on the clothes line.
Mary also told the jury that whenshe left her work the following morning
at six fifteen am, she noticedthat Dwallaby Chevy was parked in the same

(10:03):
location as the evening before, acrossthe driveway. This made four separate eyewitnesses
had placed the Dwallaby car in thesame awkward position as the night before.
A portion of the trial focused heavilyon the shattered basement window. The prosecution
had argued that it couldn't have possiblybeen the entry point because there appeared to
be a layer of undisturbed dust onthe inside window cell as testified, but

(10:26):
below the I Patrol Officer Donald Woodark, the first officer who had arrived at
the Dallabi's home on the morning Jacklinwas reported missing. During his testimony,
Officer Woodark told the jury that hehad seen a uniform layer of dust on
the inside window sill of the basementwindow. According to Officer Woodark, he
quickly deduced that this layer of dustindicated that nobody had entered through the shattered

(10:48):
window. Under direct examination, O'Brienshowed Officer Woodark of photograph taken up the
shattered window from the inside. Hecarefully avoided asking Officer Woodark well that the
photograph showed any of this so calleddust, but asked him whether this was
the area where the dust had beenseen. Officer Wuddock responded that it was.

(11:09):
O'Brien then asked him to circle wherehe had seen the dust, and
he circled the window ledge. Undercross examination, the defense refuted this and
stated that the dust had not evenbeen mentioned until seventeen days after Japlan was
reported missing. The purpose of anaccurate police report is to preserve any details
that could later be used for afollow up investigation. The so called dust
had not been even mentioned in theinitial police report, despite the fact officer

(11:33):
woudark had been trained in the importanceof riding police reports while training at the
police Academy. Under cross examination,Metrick said, it is not there.
That, of course is an importantfact, is it not, to which
Officer Ruddock replied, now I believeit is, yes, sir, meticc
or budded with at the time wasimportant to you because you stayd in your

(11:56):
mind. It could have been whereentry had not been made. Correct.
In fact, Officer Wooderk could evenreference to the shattered window as the point
of entry five times in his initialreport. If he was so sure that
nobody had entered through the shattered windowat the time, why did he refer
to it multiple times as the pointof entry, and why did he not
mention the alleged dust that he hadclaimed was the evidence that nobody had came

(12:18):
through the window. Officer Woodark testifiedthat seventeen days later he wrote a second
report after Chief Fisher told him too. He claimed that Chief Fisher asked him
to include all the detail that hecould think of, and this time Officer
Woodark mentioned the dust for the firsttime. The first report that he wrote
was never signed off by a supervisor, but the second was going back to

(12:43):
the alleged dust. Metchick suggested thatwhere Officer Wooderke could circle show a reflection
from the window, one wavering inhis ascertation that he saw dust on the
window sill. Officer Woodark said,it was possible that there was a reflection
from the window, but there wasstill dust there. We spoke to Bob
him in about this. The officerwho originally did his report didn't mention dust

(13:05):
on the windowsill. Seventeen days later, his supervisor said, go back and
fill in details and whether or notit was whispered and put in dust,
I don't know, but I suspectit was, and he filed a supplemental
report, which now he recalled thatthat day he observed an undisturbed layer of

(13:28):
dust on the windowsill. One photohad been taken of the window sill.
The photo was argued by Machak andHyman to simply show a reflection of the
sun. No dust, just areflection. He was argued by the state,
No, that's dust. So thejury had lawyers on each side saying

(13:48):
this is what it is, thisis what it is, and the jury
had to decide which, if eitherof those they wanted to believe. That's
what juries do. So there wasno real problem with that. The thing
that I don't think Hyman and Maycheckdid enough to underscore was that the original
crime investigator on the scene, theguy who filed this supplemental report, if

(14:11):
he had thought that the layer ofdust was significant enough to include it in
his report even seventeen days later,he could have taken more than one photo.
He could have taken photos that wouldhave been absolutely conclusive about what it
is. He also could have puton a glove and run his finger in
a section of it to show thatsomebody would leave a mark if they touched

(14:35):
it. He also had an electrostaticprint lifter in his trunk among his tools
that's basically used to take impressions offootprints and dirt. But he could have
used that to take an impression ofthe dust, which would actually created a
record of the dust and how thickit was. So there were all kinds
of things he could have done ifhe thought he had made a significant finding.

(14:58):
He did none of them, andI don't think that was really adequately
argued by the wards on the witnessstand. Officer Wouldock also admitted that when
he arrived at the crime scene,he had picked up several pieces of broken
glass that had come from the shatteredwindow and had pulled him up on top
of each other before the crime scenewas photographed. This, of course,
is not proper crime scene protocol andseverely contaminated the crime scene. As mentioned

(15:24):
earlier, Officer Wouldock was a patrolofficer. He had no formalized training and
crime scene investigation. Despite this,however, he should have known to preserve
the crime scene. This is whatBob Biman had to say about the mishandling
of the crime scene. It wasmishandled because I doubt that Midlothian has had
more than well, I don't knowhow many murders they've had, but they

(15:46):
haven't had many. And they werejust they weren't in the business of properly
processing these kinds of crime scenes,and it was sort of like, well,
I mean, it was just ajoke. People were just tramping in.
The police never took charge. Theylet family members come in with food

(16:07):
and tidy up the apartment. Thehouse. Their friends and family came and
liceoled down all of the counters withina day of the disappearance. So part
of it was the police didn't knowwhat they had in their hands. They
didn't know if it was a kidnappingor a crime or just a runaway or
whatever. And by the time theyknew that they had a murderer, and
by the time real law enforcement gotinvolved, it was too late. Officer

(16:33):
Woodark further testified there was a metalrock directly underneath the window. He described
her there was two boxes with papersticking out on a bottom rung of the
metal rock. He claimed that theywere undisturbed. Under cross examination by the
defense, Officer Woodark admitted that onebox to the right of the window had
stress marks. The defense contended thatthese marks very possibly could have come from

(16:55):
somebody stepping onto the box. OfficerWoodwark also confessed that there was a gothmark
on the wall underneath the window onthe inside of the house. When questioned
about the demeanor of Cynthia and Davidwhen he first arrived at the home that
morning, Officer Woodark said that Cynthiaappeared to be emotionally distraught. He described
at one point how he overheard hervomiting. David, he said, appeared

(17:18):
to be somewhat calm. Stephen Kashirski, the special FBI agent who had been
in charge of the investigation, testifiedthat he had discovered one of the basement
windows unknocked. This basement window wasfacing the backyard, while the shattered one
had been closer to the front ofthe house. Stay at police evidence technician

(17:48):
he had in Baldwin had been calledto testify as a prosecution witness. Baldwin
told the jury that he was calledat the Duallaby household after David had called
nine one one to report apple andmissing. He reiterated what Officer wood Arc
had already testified, there was alayer of undisturbed dust on the window sill.
Baldwin confirmed to the jury that hehad only taken one photograph of the

(18:12):
shattered window. He had taken thephotograph on the inside of the window with
the curtains half closed. The photographof the shattered window was entered as evidence,
and upon viewing it, the defenseargued that it showed the reflection of
the sun on the window sill asopposed to dust. According to Baldwin,

(18:33):
when he built the curtains all theway open, he saw more dust as
well as cobwebs in the corner ofthe window. However, under cross examination
by the defense, he confessed thathe had taken no photographs of the sow
called undisturbed dust or the cobwebs.He additionally claimed there was so much dust
that he drew a line in thedust with his finger, but once again

(18:56):
he took no photographs. He didn'texplain why, if there was so much
dust, he didn't preserve the dustwith evidence tape or an electrostatic dust lifter,
which he had brought along with himto the crime scene. He had
taken a number of photographs in Jacqueline'sbedroom as well, but they were exposed
to sunlight and because of this theywere only partially visible. If there certainly

(19:18):
had been a layer of undisturbed dustover the apparent entry point, and one
would imagine that this vital piece ofevidence would be one of the first things
a police officer and an evidence technicianwould notice, report and photograph. There
was no mention of any dust inBaldwin's crimes in report, and no photographs
on the witness stand. Baldwin wasessentially forced into saying that he had not

(19:42):
preserved any of the so called dusttime. Now, if he didn't him
at the time, there must havebeen a reason, And of course my

(20:02):
suspicion of the reason is that thedust was not there. It's very simple,
and it was fabricated after the factthat it had. But the evidence
of the dust had no credibility giventhe fact that it was not memorialized or
photographed at the time. And thisis what I mean when I said earlier

(20:26):
that of the hundreds of cases I'velooked at, I've never seen a competent
police investigation. This is what Imean things like that that was not competent.
If the dust was there, itshould have been memorialized contemporaneously. The
fact that it was not renders thatbit of evidence absolutely useless. Well testifying,

(20:48):
Baldwin had also said that he hadchecked for fingerprints on the front door,
the door to Jacquelin's bedroom, onthe lock on the basement window.
He said that he had only discoveredmere marks which were overlapping fingerprints which could
not be tested. It also dustedthe torn basement window screen for fingerprints,
hair and fibers be found none.One latent print had been discovered on a

(21:14):
shard of glass from the shattered basementwindow. The fingerprint was analyzed and find
not to be a match for Davidcynthia On or DV. Baldwin had failed
to dust for fingerprints in Jacqueline's bedroom, the rear door, and the patio
door scene. Yes, at theabsolute incompetence here didn't protect the crime of

(21:41):
the crime scene. The jackrine roomfrom which she disappeared was made up at
one point where her grandmother and someoneelse actually repainted it. The glass of
it without inside from the broken windowwas thrown in the garbage. Some of
them was recovered, there was anevidences immediately because it was not popularly preserved,

(22:08):
and that just sort of a policeincombinance sudden beginning. The prosecution had
also argued that due to the positionof the glass scattered around the broken window,
it looked as though the window hadbeen smashed from the inside. They
claimed that David or Cynthia had smashedthe window to create a fake entry point

(22:32):
for the intruder theory. Ralph Mayer, a forensic scientist at the Illinois Stia
Crime Lab, who had reconstructed thebroken window from the Duallabies home to determine
if it was shattered from the inside. Ralph Mayer, a forensic scientist at
the Illinois Stia Crime Lab, hadreconstructed the broken window from the Duallabies home

(22:52):
to determine if it was shattered fromthe inside of the house or from the
outside. To determine it action offorce on a window, the glass needs
to be collected and reassembled to thendetermine where the stress marks were. He
testified on the radios, the rightangle stress marks are on this side.
In other words, they mean thatthe force to break this window had to

(23:17):
be coming from outside. He furtherexplained how some of the glass ended up
on the grass outside the window,which was what had led investigators to believe
that the window was shuttered from theinside. He described how one glass bricks,
especially in a window that is beingheld very rigidly, It has a
snapping tendency. This glass is pushedand it breaks, there is a tendency

(23:41):
for it to snap back, andnaturally there is a tendency of glass particles
and glass pieces to come back out. He said that while most of the
glass will go in, some ofthe glass will naturally spring back. He
suggested that another cause for glass springingback with the force, say if somebody
had used a tool which was pushedthrough the glass and then withdrew it,

(24:04):
bringing some glass back. Doctor HenryLee, the Director and Chief Criminalist for
the Connecticut State Police and distinguished memberof International Association of Science, testified next.
Doctor Lee and doctor Peter de Forresthad been retained to examine the glass
from the basement window that Ralph Mayerhad reassembled. He testified that with the

(24:26):
reassembled glass he could draw certain conclusionsbased on the radial factor and concentric fracture.
He said that he could also drawcertain conclusions on the force, direction
of the force, and the amountof force. He told the jury that
based on his findings, the windowhad been smashed from the outside in the
left side of the window, creatinga radial fracture. The doctors had also

(24:52):
recreated the basement window four times foran experiment, which they then smashed with
the crowbar. The experiment it wasto study which direction the fragment would go
when the window was smashed. Theirexperiment showed that some glass fell inside the
window, while some fell outside thewindow. The majority of the large fragments
of glass fell inside, but hesaid that the smaller fragments are more likely

(25:18):
to stay either in the window sillor next to the window sill because they
were much lower in whip and it'sincontrovertible. The evidence technician at the sea
there was a large amount of glasslying outside the window. Now, usually
when you break a window, mostof the glass goes in the direction of

(25:42):
the force, So it was notunreasonable for this evidence technician to say,
hey, there's something weird here.There's this glass outside. Too much glass
outside, not enough inside. Buthe apparently didn't take into account is that
somebody could have broken a fairly smallhole in the window, are broken it
and then maybe picked out the glassand left it lying outside, which evidently

(26:07):
is what happened. That the scienceof glass breakage is rather simple and direct
and incontrovertible. You can tell fromthe concentric breaks. She don't really even
need to be a scientist to figureit as out which direction the first came
from, so there was no questionwith this window was in fact broken from

(26:29):
the outside. The little girl whohad been sexually assaulted by Perry Hernandez i
Blue Island. It was nice sevenyears old, and she was called to
testify for the defense of Cynthia andDavid. In a direct manner, the
little girl referenced to the first ofSeptember nineteen eighty nine as the night she
got stool. She said, Igot stool. He took me out of

(26:55):
my bed. Cynthia, who washolding d of its hand, found it
difficult not to cry as she heardthose words. The young girl had been
abducted from her attic bedroom that sheshared with her twin brother, three other
siblings, her parents, and thefamily's dog. While remained asleep in the
house throughout the ordeal, sitting withher elbows resting on the stand and her

(27:17):
head resting on her hands. Thegirl described how Perry Hernandez had placed his
hand over her mouth so that shecould not scream, and picked her up
and carried her down the stairs andout the side door of the house.
Speaking in a hushed tone, thelittle girl said, he covered my mouth
so I couldn't scream, and pickedme up and carried me down the stairs

(27:40):
and out the side door. Fromhere, Hernandez carried the girl through a
trailer park, through the weeds tounderneath the bridge by the Calzag Canal.
On the way, she recalled thatHernandez tripped over a car door which had
been discarded in the weeds. Here, Hernandez removed the girl's pajamas and underwear

(28:00):
and made her put on a bathingsuit that he had stolen from her home.
Underneath the bridge, r Nandez heldout a string and showed it to
the little girl, as if tothreaten her with it. Defense attorneys told
the little girl that she would notneed to relive the bad things that happened
that night, but they did askher if she recognized the man. She

(28:22):
said, I knew he looked likethe person across the alley. After the
assault, the girl was allowed towalk home, and when she entered the
house, everybody was still asleep.She said that she washed her face and
then went upstairs to her bedroom andtold her twin brother that she had been
stolen. The girl had suffered injuriesto her bodox, lower back and had

(28:45):
vaginal bruising. After confiding in herbrother, the girl then told her mother
what had happened, but she initiallydisregarded her story as fantasy. However,
she soon noticed that the television wouldnot turn on, and it was discovered
that the man a part of thehouse had been switched off. Her rather
then noticed the tomatoes and silverware hadbeen scattered across the kitchen floor and the

(29:10):
kitchen screen had been taken off.When they went to bed the night before,
the tomatoes had been lined up onthe kitchen window sill, and the
silverware had been left on the sinkdirectly below the window sill. At this
point, her mother gave more creditsto her daughter's claims, shook at the
bathroom and noticed the plethora of cutsand bruises. She immediately woke up her

(29:33):
husband and called police. During theinvestigation, police discovered the young girl's underwear
and a bathing suit beside the CalzagRiver. The young girl had identified Hernandez
as the man who abducted her andsexually assaulted her from a police line up
at the Blue Island Police Department.At the time. Hernandez had lived across

(29:55):
the road from her family and wasthe cousin of one of her friends.
The little girl said that the weekbefore Hernandez had abducted her, she saw
him staring at her while she wasplaying in the yard. When her mother
testified, she said that when shefirst reported the abduction to Polize and they
arrived at the home to question them, they first of all suspected that the

(30:17):
little girl's father may have been involved. It was only when they discovered the
girls underwear down at the bridge butthey began to consider a stranger abduction had
taken place. Le Island Detective JoeCosmon next took to the witness stand to
say that the area where the girlhad been taken was only around a mile

(30:37):
from where Jacquelind's body had been discovereda year beforehand. While the cases were
remarkably similar, it also proved thata young child absolutely can be snatched from
their bed in the middle of thenight, right under their parents' noses.
Investigators had always stated that they consideredit unbelievable that such a thing occur,

(31:00):
thus leading them to the conclusion thatCynthia and David had to be involved.
This child's testimony with solid evidence thatit could happen and that it did happen.
Julie Auster, Hernandez's girlfriend, wholived close to the Duallabies at the
time of Jacquelin's abduction, was calledas a defense witness. She told the
jury that at the time of Jacqueline'sabduction, Hernandez frequently stayed with her.

(31:25):
She additionally said that in nineteen eightyeight and nineteen eighty nine she had owned
a Chevrolet car. However, whenquestioned as to whether Hernandez had ever driven
it, she said no. AssistantStates attorneys Pat O'Brien and George Felchick attempted
to point out the differences between theabductions. They argued that there was no

(31:45):
trace of Hernandez anywhere in the Duallabyhousehold. They highlighted the fact that there
were no footprints or fingerprints, implyingthat Hernandez could not have been guilty of
Jacqueline's abduction and murder. Furthermore,Hernandez had confessed this abduction. He had
given a detailed statement which read Afterfive pm on Friday, September first,

(32:07):
nineteen eighty nine, I had justgotten pay. I went to Hass's tap
and then went to the sitting Bolttavern. I stayed there until about five
am and left. I went tothe house at one three four two three
Francisco, three doors from my cousin'shouse, and I had seen a little
girl there playing before. I pulledoff the screen from the window at the

(32:28):
back of the house. The windowwas opened partially and I went in.
I went to the basement and pulleddown a lever and the parr went off.
I then went to the first floorand walked around. I took some
girl's clothing, swimsuits and underpants blueand green swimwear. I opened the door
to the first floor and walked upa staircase to the second floor. Went

(32:52):
into a bedroom and saw the littlegirl. I touched her leg and she
moved. I pulled the blanket offher and pulled her up. She woke
up and I put my hand overher mouth gently and whispered to her to
keep quiet. I carried her downthe stairs and out the side door.
I carried her down to the railroadtrestle near one hundred and twenty six.

(33:15):
She kept asking me who I was. She sounded like she was crying.
I kept telling her to be quiet. Once I tripped over what looked like
a car door and we both fell. The little girl landed on her back
and began to cry. I saidI was sorry and she would be all
right. When I got her tothe canal, I carried her under the
trestle. I put her up ona cement block. She was wearing a

(33:39):
night gone. Fernandez then described ingraphic detail how he sexually assaulted the little
girl for continuing saying she put hernight going back on. She asked which
way was home, and I pointedher in the opposite way so that I
could escape. I ran home onetime. She said, thought she knew

(34:00):
me and I made up a name. Ralph Meyer had additionally examined the pubic
hare found in Jacqueline's underwear, andit was his opinion that the hair was
dissimilar to the known head and pubichair standards from Hernandez Dexter Bartlett and,
an evidence technician with the Illinois StateCrime Lab, testified that he had been

(34:21):
called to process the abduction scene ofBlue Island, where he collected fingerprints from
a number of items, including thescreen which had been removed from the kitchen
window, the sink in the kitchen, and the washing machine in the basement.
He took the latent prints to theIllinois State Crime Lab, where they
were handed over to Joseph Ambrosik.He had been assigned to compare the fingerprints

(34:43):
to the fingerprints of Hernandez. Hefound that three prints on the kitchen window
and screen were made by Hernandez,three prints on the sinc were made by
Hernandez, and one print on thewashing machine was made by Hernandez. Officer
Joe Cosmo had worked on both theDwallaby case on the Hernandez case. We

(35:04):
spoke with him and here's what hehad to say. Yeah, here's the
thing, here's why I don't thinkPerry did it. There was rumors that
he lived in Midlothian at the time. This was maybe a mile and a
half maybe two miles west of whereJacqueline's body was found. In this case,

(35:29):
Perry tried to break into two houses. He went to first house.
As he was taking the screen off, the father heard something, turned on
the light and Parry ran. Hethen goes to the second house. He
gets in and he takes a littleHe takes her across the street to the
canal, which is very close.I think he he assaulted her somewhat wasn't

(35:58):
a full out, but it wasstill a sexual assault and he passed out
and she ran home. Perry wasa drunk and he get highly intoxicated when
he would do this stuff to getfrom Midlothian. He didn't drive. He
had a suspended license. Not thatmeans he never drove, but for the

(36:21):
most part he didn't drive. Allhis people and his girlfriend and everyone else
says he doesn't drive, and heonly did he did that stupid stuff when
he got drunk. I don't thinkin my feelings that he could have got
from Midlothian to the canal bank withJacqueline without someone saying it, you know,
before the duallaby. And then mything was how the hell could somebody

(36:45):
get into a house because they werelike mom, dad, a dog,
three or four brothers, and thisguy climbs in through the kitchen window,
knocks over the dishes that were into think, knocks over tomatoes that were
on the window ledge. He goesinto the house. We find his pack

(37:05):
of cigarettes on a table in thefront room. He went downstairs shut the
electric off. We found his springerprints all over that. He then goes
upstairs, takes her steps over thedog, and walks out. And that
was the prosecutions. Thing in adwallby is wait a minute, You get
better each time you do something,you don't get worse. And this time

(37:29):
he left Prince everywhere, he lefthis cigarettes, he left, you know,
he left the girl live. Youknow. Wow, Yeah, it's
shocking that it's almost a year tothe day. But is it a coincident?
What ties him to the duallaby?There was really nothing. And then
at some point after in three bothmyself and Fabio, Fabio Valentino went he

(37:54):
was the first assistant of co Countyat the time. We went down to
Menard's an interviewed barrier and is aboutthis. No, he did not admit
anything with this case. There weresupposedly a couple of people in jail that
he said he had made statements.In fact, we also we actually at

(38:15):
one point had his cell wired up, his cell mate wired up, and
that proved unfruitful. He never henever admitted anything on tape. The decision
had to be made whether to callthe d Wallabies to testify during the trial,
and ultimately they did not. RollBoorden explained why they were. You

(38:38):
know, I think another aspect ofthis is that is basically ineffective assistance of
counsel. You know, right atthe close of the trial, Ralph maycheck
the lead counsel for both it calledseveral criminal defense layers in the civil shag
and said do you think I shouldput him on the stand or not?

(38:59):
And in fact movies defense lawyers.A friend of mine said, well,
have you prepared him to testify?No, he hadn't prepared him to testify.
Well, in that case, thedecision has been made. You can't
put him on the stand. Thatyou have to a criminal defense lawyer has
to very carefully prepare a witness totestify for to avoid all of the pitfalls

(39:21):
that of cross examination, and tofail to do that, to have not
done it basically precluded putting David onthe stand. Now, of course,
it was really you know, it'sobviously up to the defendant whether or not
to testify. But shortly before theDelawaity trial, there had been a lawful

(39:46):
lengthul prosecution, not a lawful conviction, of a of a daycare operator named
Sandra Fabiano. She had prevailed withouttestifying, and David set out to the
well. I looked at that centerFabiano had not testified, that jury acquitted
her, and I thought, youknow, on balance the fact that you

(40:07):
know you could be you know,you could be tripped up on cross examination,
that it was better not to.I would have thought that ideally David
and Cynthia could have been prepared verycarefully to testify so they could avoid the
pitfall, so they could arise duringcross examination, and that they should have

(40:28):
taken the stand. Now, jury'sdefinitely want to hear from an innocent defendent.
I was just no question about it. But in this case, because
Ralph Maycheck had failed to prepared belivedto testify, it was simply out of
the question. Couldn't do it.In the United States, The Fifth Amendment

(40:55):
to the United States Constitution does anumber of things, but one of them
is that no one can be compelledto give testimony against themselves, and that
of course, there are similar provisionsin the Magna Carta, and I'm sure
that English law has something similar,although it's not called the Fifth Amendment.

(41:15):
It's called something else. But it'sgot to be part of your charter or
constitution. That because in the oldendays the king just tortured you until you
said whatever he wanted. We don'tallow people to testify against themselves unless they
waive that right and agree to doit. So David and Cynthia had an

(41:37):
absolute right not to take the stand. They also had the right to take
the stand if they wanted to.In Cynthia's case, and this is somewhat
interesting. If the state was sosure of their guilt, once the judge
told them that he was directing averdict for her, they could have called
her. They could have compelled herto testify. Because she faced no risk

(42:02):
of incriminating herself, she couldn't becharged with the crime. They didn't call
because they knew it wouldn't have beenhelpful. Thank you for listening to today's
episode of The Shattered Window. TheShattered Window is a completely independent podcast,
paid for out of our own pockets. If you'd like to support the show

(42:23):
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(42:44):
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(43:07):
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