08: Under the Bridge

In the aftermath of the trial, a group of people come together to try and repair the public perception.

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Show Notes: https://theshatteredwindow.com/08-under-the-bridge

Episode Transcript

(00:02):
I don't believe I drew any conclusionat all about their guilt or innocence,
But I didn't know this. Shehad a hell of a story to tell,
and I wanted to tell it.I think the pulpe would have been
convicted by that jury, hosted byEmily G. Thompson and Eileen McFarlane.

(00:35):
This is the shattered window. Afterall of the evidence was presented to the
jury, the fit of Cynthia andDavid Duallaby was now in their hands.
Let somebody snuck into the Duallaby homein the dead of the night, an

(00:59):
abductor and killed Jacqueline, or evenmore reprehensible, had she been killed by
her own parents. While there certainlywas motivation for an intruder, nobody could
quite comprehend what motivation there would befor Cynthia and David to kill Jacqueline.
By all appearances, they were lovingparents where he worked hard to provide their

(01:22):
children with the very best life possible. In a very unusual and almost unheard
of motion, in the absence ofthe jury, Judge Richard Neville announced that
he was acquitting Cynthia on all charges. As a judge, he was granted
such discretion by law, the casetruly hinged on the identification that Everett Mann
had made, and at no pointin the trial had Cynthia been identified as

(01:48):
being near or at the crime scene. There is no evidence, circumstantial or
direct, that could suggest that Cynthiacommitted first degree murder or aided in the
transport of Jacqueline's body or the concealmentof homicide. The prosecution had failed improving
their case as a matter of lawbeyond a reasonable doubt. In handing down

(02:10):
the acquittal, Judge Neville said,as a legal matter, there is insufficient
evidence for her case to go tothe jury. There is sufficient evidence for
David Wallaby to go to trial.Following the decision, David hugged his wife
as she turned to the judge andthanked him repeatedly. In closing arguments,

(02:30):
the prosecution finally put forward a potentialmotivation. They suggested that Cynthia and David
had become angry when they found Jacquelineplaying with her dolls laid on Friday night,
and hinted that they tied her tothe bed as a discipline. The
murderer was accidental, they proposed,adding that the rope found wrapped around Jacqueline's

(02:53):
neck. Wasn't the kind of ropethat you strangle somebody with, but instead
the kind of rope you produced tobind somebody. This theory had come from
the fact that a small suitcase containingdoll's clothing was discovered on Jacqueline's bed when
police arrived on the Saturday morning.This theory was lambasted as ludicrous by Cynthia

(03:16):
and David's attorneys, as Metric said, you don't murder your daughter because she
wanted to play with dolls. Outsideof court, Cynthia briefly spoke with the
media and said that she was pleasedwith the verdict and was not waiting for
David's acquittal. When the jury retired, the four person made it clear she

(03:40):
was convinced that David to Wallaby wasguilty. Some of the jurors attempted to
climb through the mockup of the basementwindow and field this was enough to convince
them and that no one could haveclimbed through. The mockup had no wall
or floor beneath the outside of thewindow. It was effectively just a window

(04:01):
frame on a wooden stand. Juryspent the next three days and talked before
they reached a verdict. Cynthia wassat in the spectator's section with her family
as davidsid alone at the defense teable. While the defense team were more than
jubilant that Cynthia had been acquitted,they believed that the only difference in Cynthia's

(04:23):
case and David's case was Everett's testimony, which had been thoroughly discredited. After
fourteen hours of deliberation over the courseof three days, the court clerk announced
to the silent courtroom that the juryhad found David guilty of murdering seven year
old Jacklin. The courtroom erupted inemotion as Cynthia shouted out, oh my

(04:46):
God, for what, before burstinginto floods of tears. The defense team
were stunned with the verdict. They, among others in the courtroom, believed
that there was not enough evidence fora conviction and that the prosecution did not
successfully prove beyond reasonable doubt that Davidwas guilty. David was taken to a

(05:09):
holding area near the judge's chambers,where he and Cynthia were allowed to say
their goodbyes. Stundon, heartbroken,they clung to one another. Channel five
reporter Paul Hogan called the verdict astunning upset victory for the prosecution, in
effect a split decision that finds Davidd Wallaby guilty, but one in which

(05:30):
the judge said that there wasn't enoughevidence for Cynthia's case to go to jury.
Inside of court, Assistant States AttorneyPat O'Brien insisted that both Cynthia and
David had committed the murder together,but said that there was simply less evidence
against Cynthia. He said, becauseof the system and the protects all defendants,

(05:54):
Cynthia Dawallaby is walking the street.Mayor Richard Daley applauded the proctors and
spoke of high people had doubted theinvestigation and indictment, but the prosecutors had
done an outstanding job. Many ofthe duallabies friends and neighbors were quick to
disagree, calling the investigation and trialunfair. Captain Daniel mcdevit responded by holding

(06:16):
a photograph of Jaqueline up to aChannel seven news camera and saying, this
beautiful seven year old girl is dead. That is unfair. David was taken
into custody immediately, while a bonteeringwas scheduled for the Monday and a sentencing
hearing for July. David would befacing twenty to eighty years in prison.

(06:42):
His defense attorneys, Ralph Metchick andDaniel Franks, said that they would be
planning on appealing and accused the juryof being unable to separate the enormity of
the crime from the evidence that waspresented to them and duallaby lambas of the
media and accused them of distorting thefacts in the case, which caused jurors
to be biased. Her son followingthe verdict, when asked if she thought

(07:03):
Cynthia and David had gotten a fairtrial, she shouted at reporters outside of
the courtroom, saying, absolutely,they did not get a fair trial.
It was biased because of the media. The prosecution did their job and you
did yours to put out false information, to print lies without facts. The
following day, the jury four personPhyllis Halverson, granted Mat O'Connor of the

(07:27):
Chicago Tribune and exclusive interview. Phillissaid that she failed to empathize with Cynthia
because she deemed her emotions to befalse, claiming that she was crying at
all of the right moments. Shealso stated that Everett Mann was a credible
witness because he had a lot tolose by testifying and admitting his affair.
The most surprising admission made by thefour person was at the photographs of the

(07:50):
interior of the Dewallabee home made thembelieve that it was a house of great
violence. Then as the edit trials, one of the jurors in the case,
a woman named Phillis Halverson, helda press contents or spoke to the
media right after the verdict and shesaid that they had toured the Duallaby home

(08:11):
and they could tell from during thehome that it was a place of great
violence. That was a reference towas the Duties had moved into this house
and somebody had had put fist holesin a bedroom, and the fijury assumed

(08:33):
that that had happened after the Dutiesoccupied the house. In fact, the
fist holes were there prior to theDulallabies moving in, and because they didn't
have a lot of money, theyhad just they had actually covered the This
was in their son, Davy Dullabiesroom. They covered those fist holes with
the teenage mutant ninja turtle posters andthose were taken down then by the time

(08:58):
the jury two of the house andsaid, trust to the conclusion that oh
my god, this was a placeof great boots. So things like that
that remember that were very pretty ridiculous. The prosecution had shown the jury photographs

(09:20):
of three fist marks on the hollowdoor to Davy's bedroom in Cynthia and David's
home. The jury assumed that Davidhad punched the walls in a fit of
anger. The article read. Prosecutorsnever pointed out the damage, but the
inference the jury apparently drew was thatonly a hot headed father could have done
that kind of damage, a fatherwith the kind of temper that could result

(09:43):
in the killing. As a matterof fact, the fist marks had been
made by David's younger brother, Brian, over ten years earlier. The Dwallaby
home was David's childhood home, wherehe had grown up with his parents and
siblings. The fist marks in thewall were there when Cynthia and David moved
in, but that wasn't allowed tobe explained during the trial. According to

(10:07):
juror Evelyn Rhoda, she believed thatthe photographs of the fisthmerks had indicated that
David had a violent temper. Policeand village officials were quick to announce their
pleasure with the verdict, with MidlothianPolice Chief William Fisher's stating were elated.
I think the jury concluded exactly whatour investigation showed, that a burglar murderer

(10:28):
did not break in a murder Jacqueline. He additionally said that the verdict was
a relief for the community who nowknew that a child killer was not lurking
around the streets of Midlothian ready totarget another child. According to Police Chief
Fisher, he was proud of theinvestigation and the team effort of all of
the task forces that were involved inthe case. On May sixth, in

(10:52):
the office of the Dwallabies attorneys,Cynthia broke her silence and told reporters,
my husband and I are innocent people. We would never harm our daughter.
We would never harm anyone for thatmatter. We're not capable. We're very
loving parents. Someone out there knowssomething. We begged them to come forward.
It's time. Cynthia said that David'sheart had been ripped out of his

(11:15):
chest and he was no mother theconviction. She said that the family was
not going to give up on Davidand was not going to give up in
seeking justice for their daughter. Sheproduced a number of family photographs in question
why the evidence that they were aclose knit and loving family was never presented
in trial. Instead, the prosecutionhad tried to portray David as a violent
man who was capable of murdering Jacqueline. Cynthia said of Judge Nevill's decision,

(11:39):
I don't think he had to acquitme. He could have taken my case
and just handed it over to thejury the same as he did with my
husband's. He could have said,this is up to you, this is
your decision. It's off my back. It showed a lot of courage that
he went out on a limb forme. David protests, said the following

(12:00):
I later found out by polling thejury would have convicted both of them had
Cynthia's case gone along with David's forthem to decide. But the judge wisely
putted Cynthia because there was elevidence againsther and sent David's case the jury.
Based on this supposed eye witness EverettMan, who claims that he saw someone

(12:22):
who looked like David in the spotwhere Jacqueline's body was found five days later,
and on that basis the jury believedthat were a man and convicted him.
Convicted David. On May twelve,the prayer service was held in Hope
Christian Reformed Church in Oak Forest,near the Dwallopees home. Cynthia's mother Mary

(12:46):
spoke to the congregation, saying Godsent us a rose boat on May seventeenth,
nineteen eighty one. She flowered intoa beautiful little girl. In September
nineteen eighty eight, she was robbedof life and renounce of dignity by the
most heinous, despicable person on theface of this earth. I demand the
case be reopened. Jacqueline's horrible deathmust not go unavenged. Someone knows what

(13:11):
happened to her, and I prayfor them to come forward, and I
pray to Jacqueline, our little saintin Heaven, to comfort us during this
time. It's been twenty months sinceher death and we have had no time
to mourn. A Freedom Committee wasformed, spearheaded by the Duallaby's long term
closest friend, Peggy O'Connor. Theydone T shirts emblazoned with the words stopping

(13:35):
Justice, Free David Duallaby and appealedfor information leading to the capture of Jacqueline's
murderer. Not only had the convictioncome as a surprise to David and Cynthia's
family, it also came as ashock to their friends, who had rallied
around them from the moment it wasdiscovered that Jacquelin was missing. They were
so convinced in David's innocence that justdays after the verdict was read out,

(13:58):
two of David's friends put up aten thousand dollars reward for any information that
could lead to the arrest and convictionor the person responsible for the crime.
They asked for anybody with any informationthat could assist in the case to either
phone or rital letter to either Cynthiaor David's defense lawyers. Just as the

(14:20):
members of the task force held onto photos of Jacklin until a conviction was
made, the Freedom Committee promised towear red and white mccrane bracelets until David
Wallaby was a freeman. On Mayfifteenth, Cynthia Peggy, an attorney Metric,
attended a panel at Northwestern University's MiddleSchool of Journalism. The panel was

(14:43):
hosted by David Protests, a professorat the University, and it was to
be a discussion about high profile casesin the media. Metric spoke about the
dangers of talking to the media.He said an entomologist who had analyzed the
maggots fent on Jacqueline's bodgy had discreditedhimself by speaking on the radio about faking

(15:03):
evidence. Cynthia described her now shatteredlife to the Pact auditorium. She had
lost her daughter in the most horrificmanner. Her husband had been convicted of
killing her daughter. They were bankrupt, and the home they shared with Jackline
was no longer theirs. Every daybefore enduring the trial, there would be
dozens of reporters clamoring for a comment, and she had been directed not to

(15:28):
speak to anyone. In the absenceof her truth, the public only heard
one side, Cynthia said. Theonly reporter who had ever treated them fairly
was Channel five's Paul Hogan. DavidProtest knew Hogan and asked him if he
would be interested in covering the storywith him. Neither were sure if they

(15:48):
believed David to Wallaby was innocent,but they knew it was definitely a compelling
story. Two days later, Jacquelinewould have turned nine years old. Instead
of a birthday party, there wasonly a cemetery to visit, flanked by
graves of those who had lived longlives. Her final resting place was adorned
with flowers and gifts. Protests reachedout to Cynthia and asked if she would

(16:12):
be willing to speak with them onthe record. Cynthia was hesitant. The
media coverage had never been favorable before, and she worried that it would be
worse if she put herself forward.She was trying to decide on a lawyer
to represent David in appealing his conviction, and protest that he would ask his
wife, Joan. Joan was alawyer, and she knew the perfect person

(16:33):
for the job. Bob Bimen Bimanwas a partner at Jenner and Block,
one of Chicago's largest law firms.Every year, Jenner and Block took on
cases pro bono, and just theyear before they had provided twenty three hundred
hours of free legal service. Theystrongly held onto the belief that all professionals
owe something to society. Furthermore,they do not base their decisions on what

(16:57):
cases to take pro bono on whetheror not the case is winnable. Bob
Byman explained by saying, we takecases whether they're hopeless, hopeful, or
whatever else. David's sentencing had beenpostponed until July. Protest persisted in asking
Cynthia to give him an interview,and after he'd been able to put her

(17:19):
in touch with a lawyer who wouldtake the case pro bono, she agreed.
They had exhausted all of their moneyon attorneys who would not only advised
them not to speak with the media, but also let them down. Bob
Byman spoke to us about this.I fault Maycheck and Hyman for a couple
of things, but not for thatadvice. I mean, that's its standard

(17:42):
advice in a criminal trial, tellyour client to shut up, mainly because
no matter how innocent your comments are, the state will find a way to
say it's your courage. So it'sa good advice in general. But by
the time we were on a peaceand protest was really the architective, as

(18:03):
I was a willing adherent to itand jumped on board very quickly. But
it wasn't just that we had toconvince the Court of Appeal that there wasn't
sufficient evidence to convict. We hadto convince the Court of Appeal that they
could say that without taking substantial becauseit's too easy for the Court of Appeals
to just say, we might havecome to a different decision, but the

(18:26):
jury has ruled, and we respectthe jury and they leave it alone.
Anytime they overturn a jury, theyknow it's going to be put under a
microscope. And these are elected judges. Unfortunately in Illinois. I hate the
fact that we elect our judges,but we do, and they're aware of
the political ramifications of doing something thatseems unpopular. So it was important to

(18:48):
the dualities that we make it popularfor them to come to the right result.
And that's basically what we did bydoing our sort of own media campaign
to get in front of the camerasas often as we could during the appeal.
Before the interview, protests wanted toget a feel for who the Jibalabies

(19:10):
were. He countassed the neighborhood andthe response was overwhelmingly supportive. Here's what
protests had to say about getting involved. Well, I first heard about the
Duallaby case on the news, likeeverybody else in Chicago, who was transfixed
by this little girl disappearing from herbed in the middle of the night,

(19:32):
and after watching the stories for afew days, I reached the tenthet of
conclusion that they were probably guilty.In my little children don't vanish from their
beds in the middle of the nightwith their parents nearby. I figured that
some harm had befallen her inside thehouse, and that one of the couple,
David or Cindy, had gone outand dumped her body by the islander

(19:57):
apartments and blew aland so I guessmy view was the same view that was
shared by the police, and theentire basis for my criticism of their work,
which is that they made faulty assumptionsand jumped to conclusions without looking at
the evidence. But as far asmy personal involvement with the case, after

(20:26):
Cindy was acquitted and David was convicted, Cindy held a press conference in which
she declared her innocence and said thatshe'd been railroaded, among other things,
by the media. This press conferencehappened to coincide with an annual Pound discussion

(20:47):
I had for my students called theOther Side of the Story, where I
bring in people to talk to youngjournalism students about what it was like to
be stigmatized by the media. UM, in an effort to try to get
these journalism students to learn empathy andto be a little more sensitive to others,

(21:07):
not to necessarily believe their stories,but to at least hear them.
UM. So, so the timingwas coincidental, and I invited Cindy and
her lawyer to join the panel,and they did, and you know,
it last about an hour and ahalf or so. UM. I don't

(21:29):
believe I drew any conclusion at allabout their guilt or innocence from what Cindy
said to the students, But Ididn't know this. Um. She had
a hell of a story to tell, and I wanted to tell it,
and I've done a lot of freelance writing for the Chicago Tribune and other
publications, And afterwards I tried togently persuade her to talk to me,

(21:56):
and then began this dance UM onthe record, off the record, and
meeting at different places, sometimes withPaul Hogan, the NBC five reporter who
had covered the story and believed thatthe evidence against the duologies was incredibly weak.
So they so they had some levelof trust with him. So Paul

(22:18):
Hogan and I and Cindy would meetand gradually are persuaded to go on the
record, and then began a monthlong process of investigating the case, where
I became firmly convinced of their innocence. The consensus in the neighborhood was alarmed.
They knew that David Cindy had notcommitted this crime, which meant that

(22:41):
the actual killer was out there.And this was a neighborhood filled with young
people, young families with children Jacqueline'sage and Davy's age a couple of years
younger, and they were petrified.So that was the mood in the neighborhood.

(23:03):
And then for the people who knewthe duallabies personally, like their next
neighbors, the Talberts, there wasa sense of outrage that this could happen
to an ordinary Middle American family livingin a typical Middle American suburb, Outrage
that the police jumped to conclusions andarrested the wrong people. Cynthia had remained

(23:26):
silent in the media for almost twoyears, but she was finally ready to
tell her side of the story.David protests and Mary Ann Williams wrote a
two part article where Cynthia spoke ofthe relentless trauma that had befallen the Duallaby
family since Jackl went missing in Septembernineteen eighty eight. She had lost her
daughter, her husband, and herson. The relief she felt having finally

(23:49):
given her side was short lived.The day the second part of the article
was published, Davy's records from utSI and I Will leaked to the media.
Channel seven ran a story about thechart doctor ahar To drawn up indicating
Davy had numerous injuries. The reporterannounced that the findings were that Davy had
been physically and possibly sexually abused byhis mother. Cynthia was able to disprove

(24:12):
the allegations in juvenile court with apolice photographs of Davy the day he was
taken into the care of the state. The photographs clearly showed that he did
not bear the injuries. Doctor Ahartclaimed he had a stark contrast to the
sensationless antics of Channel seventh reporter PaulHogan, broadcast live from Cynthia's juvenile case
attorney's office. Janet Traffola, whorepresented Cynthia and the custody case for Davy,

(24:37):
said the photo spoke for themselves.Hogan said that they showed that Davy
only had the type of marks anychild gets, and blasted the illegal leaking
of the hospital records in sense thatthe tactics used by the media to try
and damage his family even more.David Duallaby decided it was time that he
told his own story and agreed tobe interviewed by Hogan Protests and Mary Anne

(25:00):
Williams at the Cook County Jail.The interview took place in what used to
be the execution chamber were convicted men. Once out in the electric chair,
David Porter's heart out, dismissing hisattorney's advice not to answer certain questions.
David had lost a significant amount ofweight following his conviction. He had chosen
not to go into the yard duringhis designated time because he didn't want to

(25:22):
go out until he was really free. He spoke candidly about his feelings,
saying, the only thing I didwrong was that I didn't wake up and
save my daughter. My daughter wouldhave expected me to be your hero and
to save her, but I couldn'tsave her. I wish to God I
woke up that night, but Ididn't. I'm guilty of that. If

(25:42):
that's why I was here I couldaccept it. David Protests spoke to us
about that interview. I had alreadywritten the investigative story about Cythia for the
Chicago Tribune, which gave David enoughconfidence to teak with me and with Paul

(26:03):
Hogan, whose coverage he already admired, since he was the only reporter in
Chicago who was telling straight and sowe arranged, through David's lawyer, a
meeting at the Cook County jail,but was actually originally used as the place

(26:26):
where people were put to death byelectrocution. So that was the first thing
was I think very striking about theinterviews. That everyone was going in sort
of nervous and uncomfortable in the firstplace, since David had never spoken publicly
about the case. I think thatwas probably most I don't remember a lot
of the details from the interview wasthirty years ago. I'll tell you what

(26:47):
was most striking about my interview andPaul Hogan's interview with David. It's that
his lawyer was present and try toshut him up a number of times because
there were legal issues pending that thelawd didn't want him discussing, and David
brushed him aside. And insisted onfinally having the opportunity to tell the truth,

(27:08):
to talk publicly about everything, includinghis pot use in one occasion,
a sale of a pound of marijuana, things that were hurtful to himself.
But he also told a very painfultruth about what it was like as a
parent to not wake up in timeto save his daughter. That was probably
the biggest takeaway I had from thatinterview is that David would suffer the rest

(27:33):
of his life because he did nothear the intruder and awaken in time and
intervene, and his daughter was takenout of the house and murdered, and
he blames himself. David was gratefulthat Cynthia had been acquitted. He spoke
about facing the possibility of being injail for the rest of his life was
not the worst thing that he hadever faced. The worst was losing his

(27:56):
daughter. Speaking with David in personconvinced David protest of his innocence, and
from that day on he promised hewould do everything he could to get him
out of prison. John Waters diedthat same day. The private investigator for
the defense had fought to find Jackline'skiller. While finding aggressive colon Concert his

(28:19):
work would be carried on by acollection of the Wallaby supporters from the neighborhood,
the media, and one of thelargest law firms in Chicago. But
First Attorney Daniel Franks filed a motionto overturn the verdict. A hearing was
held on July ninth. Attorney Franksspoke at length before asking Judge Nevill to

(28:41):
overturn the guilty verdict. Judge Nevillwas impressed with Frank's argument, but didn't
think it was appropriate to second guesstwelve people. David's defense team refused to
throw the towel in and requested thatDavid be given a new trial, citing
thirty three errors on the prosecution's part. The highly publicized case took a surprising
term when the defense revealed that theyhad a new witness, Kathy Farley acclaims.

(29:06):
Analyst reported that she had been joggingalong one hundred and eighteenth Street in
Alsip on the morning of the tenthof September nineteen eighty eight. This street
was approximately five miles from where theDallabies lived. She claimed that, whilst
jogging, a car pulled up besideher to ask for directions to Blue Island.
Two Hispanic men were in the car, and Kathy couldn't help but notice

(29:27):
the blanket in the back seat,which looked as though it was hiding something
underneath. Later in the evening,Kathy saw the news report on Jacklan's disappearance
and thought back to what had transpiredthat morning. She confessed that she didn't
even think to come forward with thistidbit of information until she found David's lawyer's
numbers following his conviction. The passengerresembled Perry Hernandez, she said. Despite

(29:55):
this, Judge never refused to grantDavid a new trial. However, he
did describe the defensive motion as welldone, and according to Attorney Franks,
his comments were evidence that they hadraised several valid points throughout the earring.
He spoke about two key pieces ofevidence in particular in his plea for overturning
the verdict, and they were thepubic hair fin and Jacklin's underwear and the

(30:15):
unidentified hair intertwined in the rope.Speaking outside of court, attorney Frank said
the jury's decision should have been basedon the evidence presented at the trial,
and it was not. Judge Nevillerealizes this, and I think the appellate
court will realize that Bob Biman spokeabout the jury's decision. It was human

(30:37):
nature that the jury saw this beautifullittle girl, saw that she had been
senselessly murdered, and they had abinary choice. They had a choice between
saying, Okay, we'll convict theperson you've put in front of us,
or we'll say we don't know whathappens, so we can't give her justice.

(31:00):
That's a tough thing to ask twelveordinary people, or even twelve extraordinary
people. You either don't do anythingto help the family get closure or help
the victim get justice, or youconvict the wrong person. And I think
the Pulpe would have been convicted bythat jury. The sentencing phase began the

(31:22):
next day. There was a hearingbeforehand to discuss the aggravating and mitigating factors
that may affect the length of thesentence David was to be given. Judge
Neville said, we all want toknow why this girl died. We do
not know why this murder happened.We did not know exactly how this happened.
He went on to say that whetheror not automotive was revealed during the

(31:45):
trial was irrelevant because the jury decidedthat David kill Jackline. The defense had
asked for a twenty year minimum sentence, but the judge said that a minimum
term of twenty years would be inappropriatefor a child murder. He said that
David wasn't tire out to consideration becauseof the testimony that was provided that said
he was a good, honest,and trustworthy man. Prosecutors had tried to

(32:07):
tarnish David's reputation during the sentencing hearingby calling two co workers of his who
testified he had sold the marijuana severalyears prior. The men said that David
was a good man and a goodworker and had never come to work under
the influence of either drugs or alcohol. Under cross examination by the defense,
the men admitted that David had notmade any profit from the drugs, but

(32:30):
instead supplied them just because they werefriends and had been unable to source marijuana
elsewhere at the time. One ofthe colleagues described David as a family man
who never drank more than mun beerwhile out with his friends. In fact,
the colleague said that David would alwaysleave early, stating that he wanted
to get home to be with hisfamily. A number of witnesses also testified

(32:52):
that David had never used or solda legal drugs, and that he was
the most peaceful man at work whotook pride in his job and pride in
his family. David was given theopportunity to make a statement. Pale faced
and grief stricken, he said,Your Honor, Jacqueline was beautiful, She
was charming, She was pure,she was giggly, she was probably,

(33:15):
she was soft, she was innocent. She had a right to live.
So who can kill an innocent littlechild? An animal, a monster,
a degenera, someone who has nomorals. That's not me, your honor.
I did not kill my daughter.I loved her. I love her
forever in my heart, and that'sthe truth. Judge Neville subsequently sentenced David

(33:38):
to forty years for murder and aconsecutive five years for concealing a homicide.
The judge conceded that he was stilla bit perplexed as to how exactly Jacqueline
met her demise, indicating that hepossibly wasn't one hundred percent comfortable with the
prosecution's theory. Following the sentencing,Judge Nevill explained for the first time why

(33:59):
he decided to acquit Cynthia. Hestated that the prosecution had failed to prove
that Cynthia did anything or even knewthat her daughter had been murdered. He
said that at best, they hadproved that Cynthia was in a home where
a crime had taken place, andthat the evidence against Cynthia was distinctively different
from the evidence against David. Thereis a theory of law which says that

(34:20):
mere presence at the scene of acrime is not sufficient evidence for a conviction,
and based on this theory of law, Cynthia was acquitted David. Protests
was present in court following David's sentencing. He did not know else to do
other than stick his middle finger upwith the prosecutors as they left. Outside
of court, Cynthia shared her indignationwith the sentence that David had been handed

(34:45):
down. She reiterated that her husbandwas innocent and that the conviction and sentence
was a travesty of justice. Thefollowing day, Protests began canvassing the jury.
We had the juror's home addresses andbegan and the last juror and we
got all kinds of explanations. Althoughthere was a consensus that the foreman of

(35:07):
the jury, Phillis Alverson, wasso committed to a conviction that she basically
browbeat others into submitting. Then therewere the jurors who climbed through the mock
up of the broken basement wheel andconcluded that no one could have made it

(35:29):
through there, which is ridiculous.We re enacted it a number of times
and people could easily the intruder couldhave easily fit through, and the judge
and instructed them not to play aroundwith the mock up, but they did
it anyway, So okay, Imean, in talking to most of the
jurors, a consensus emerges to whatwent wrong here, but no one was

(35:51):
willing to stand up and fix ituntil I got to the home of Linda
Wisnowski. Linda was deeply troubled theverdict. She was absolutely convinced that David
was innocent, and by day threeshe was not a strong person. She
just caved pressure by follows Halverson andsome of the men on the jury who

(36:15):
insisted that David was guilty and casther vote and hoped that an appellate court
would reverse it and that he wouldbe freed soon, and then had to
live with that every day of herlife until I showed up at her house
and she broke down in tears andadmitted that she had made the wrong decision

(36:38):
and was willing to do anything totry to rectify it. Ultimately, she
signed an Affidavid and went on NBCfive News with Paul Hogan, admitting that
the jury had made a mistake andhad broken the law in a number of
instances in reaching their verdict, andcame away feeling a little bit better,

(37:00):
having at least spoken out to tryto break to the fire mistake. In
the wake of the conviction, David'sdefense attorneys heard from one of the jurors.

(37:22):
Linda Wisnowski, had been on thejury during the murder trial. Jurached
out to David's attorneys to say thatshe felt more than unsettled with the verdict.
After all the testimony was presented,Linda had reached the conclusion that neither
David or Cynthia were guilty of Jaqueline'smurder. Speaking with wm a QTV,

(37:42):
Linda said, when they read theverdict and said David Duallaby was guilty of
murder, I didn't know why Ididn't go into a seizure or why I
didn't say not guilty. I feltlike, God, what happened here?
Why didn't I say something? Andhe's convicted of a murder that I don't
believe if he did, if Iwas the one person who said I'm not
sure, I could have caused amistrial, then they would have to have

(38:07):
another jury. And now this mandoesn't have a chance. I'll be dead
by the time he gets out ofjail. According to Linda, the jurors
had disregarded Judge Neville's instructions not tohold it against David that he did not
testify on his own behalf during trial. She explained that they had wanted explanations

(38:27):
for things that they were not gettingby the evidence that was being presented by
both sides. Most of the jurorshad erroniestly determined that only a guilty person
would not testify on their own behalf. It's relatively common for a defendant to
not testify during their own trial.The Fifth Amendment states that no person should
be compelled in any criminal case tobe a witness against himself. This provides

(38:52):
a safeguard against self incrimination for thedefendant. When a defendant pleads the fifth
decision should not prejudice the jury infavor of the prosecution. After Linda went
public, there were calls for themurder verdict against David to be reconsidered.
Judge Neville, however, was quickto state that he did not see Linda

(39:14):
recounter verdict on television and said thatthe juror's misgivings following a trial generally do
not matter. He said that thegeneral rule is that jurors are not allowed
to impeach their own verdict, statingthat if this occurred then litigation would never
end. A jury verdict could beexamined if there was any evidence of external

(39:35):
pressure, for example, bribery orthreats to the juror or their family,
but Judge Neville said that in general, second thoughts don't make a difference.
Meanwhile, Channel five television news reporterPaul Hogan was making groundwork on what he
believed was a wrongful conviction. Channelfive aired a series of exclusive reports which

(39:57):
accused the Midlothian Police Department, stehad evidence technicians, and the Cook County
States Attorney's Office with bungling the murderinvestigation and focusing solely on David and Cynthia
as the perpetrators. He lumbasted MidlothianPolice for contaminating the crime scene and the
evidence found at the crime scene.He suggested that steated evidence technicians conducted a

(40:22):
sloppy investigation at the home and accusedassistant state attorneys of gaining a grand jury
indictments on the Duallabies with evidence whichhad later been proved false or could not
be substantiated our experts, says statepolice evidence technician, whose primary job was
to seek out and collect all physicalevidence, should have immediately collected and inventoried

(40:45):
the glass. Instead, he waitedthree days and then had to retrieve it
from a trash basket. Johnald fivehired a number of experts to conduct their
own investigation into how the case washandled. Forensic experts ull Skip Polanic reviewed
the physical evidence reports and concluded thatinvestigators had destroyed the evidence that could have

(41:07):
proven there had been an intruder atthe Duwallaby home, and that the fiber
test conducted on the trunkliner of CynthiaShavy Malibu had established with virtual certainty that
Jacqueline's body had not been transported inthe car. Hogan stated that it was
his opinion that there was misbehavior ontheir part and that the prosecution had even

(41:28):
overlooked evidence which may have been ableto exonerate Cynthia and David. Hogan concluded
the investigative series on July twenty sixth, steering. After going through thousands of
documents, our investigative unit concludes thatpolice made so many errors that it's not
impossible to determine through physical evidence whokilled Jacqueline d Wallaby. When the series

(41:52):
was released, officials denied the reports. According to Chief William Fisher, Hogan
had failed to report information that notsupport his theories. He stated that while
investigating, Hogan had asked Calumet CityPolice Chief Stephen Rhodes, who was an
expert on determining if a suspect wastelling the truth, to watch David on

(42:13):
videotape. The expert determined that Davidhad been lying when he spoke about the
murder of Jacqueline. However, it'swell known that the body language clues can
be unreliable and it is not atool that can be used as evidence.
For example, there was once apoint in time when body language experts believed

(42:34):
that someone not looking into your eyeswas lying. Far too often the so
called experts attribute too much meaning tosuch behaviors. Lie detection techniques have been
seriously discredited by scientists and have evenbeen referred to as junk science. According
to Hogan, Chief Rood's method couldnot have been substantiated by another expert in

(42:55):
the same field. Furthermore, hehad not been able to and David in
person, and based his finding solelyon a videotape in which he could not
even set of its whole body.Furthermore, Chief Rose was close with a
number of the police officers who hadworked on the case. In particular,
he was very close with the ChiefFisher. Three days earlier, the Midlothian

(43:19):
Police had come under criticism for failingto disclose another abduction that was eerily similar
in many ways to the abduction ofJacqueline. On the fifteenth of July,
a seven year old girl was abductedfrom her home and sexually assaulted. Even
more chilling, the girl's home waslocated half a mile from the Dwallaby home.

(43:39):
Around four forty five am, anunidentified man entered the girl's house by
removing a screen on her parents' bedroomwindow. He crept past her sleeping parents,
walked down the hallway past another bedroomand entered the bedroom where the young
girl and her older sister were sleeping. The man at the younger up in

(44:00):
a blanket and walked right out thefront door to Your Prairie, located around
one hundred and fifty feet away.When the man began to sectually assault the
young girl, she started to screamand cry, so he walked her back
to the front door of her houseand told her to go inside, but
not to tell anybody what had happened. The girl immediately rushed into her parents'

(44:23):
bedroom and woke them up. Fearonce again swept over the community of Midlothian,
especially parents. Residents of the citycould not go to bed at night
without double checking their doors and windows, and children were once again forbidden from
playing on the streets. Ben Heemstra, the father of one of the victim's

(44:45):
playmates, said that his daughter wasnow too afraid to sleep alone at night.
Surely Keenney, who had lived inMidlothian for twenty five years, spoke
with the Chicago Sun Times and saidthat she used to feel so safe in
Midlothian that she would frequently leave herdoor unlocked but not any longer. What
was especially troubling to some residents,especially in the supporters of Cynthia and David,

(45:10):
with the striking similarities between the twocases. When news of the recent
abduction made its way to David's attorneys, they subpainted the records and photographs related
to the investigation. The abduction stillremained unsolved, and the subpoena ordered that
Midlothian Police Chief William Fisher gave adeposition before the third of August to provide

(45:32):
the attorneys with legible copies of theirrecords into the abduction. According to attorney
Johan at Trafele, they were workingto figure out whether the case was substantially
similar to the case of Jacqueline.She accused Police Chief Fisher of not providing
any dissimilarities in the two cases.Yet they contended that there were no links

(45:55):
between the cases. Meanwhile, residentsin the area criticized police for feeling to
notify the community of the abduction.A number of people came up with the
idea to take the case to thevillage board meeting, which is held each
month. According to Police Chief Fisher, however, they had not gone public
with the abduction because the family ofthe victim had asked them not to how

(46:19):
to fear that they would be hauntedby the media. Police Chief Fisher even
stated, I couldn't very well tellthe public you're not safe in your own
homes. Understandably, this excuse didn'tsit well with many locals, in particular
parents. Captain John Bitten defended thepolice's silence by stating that it was in

(46:40):
the best interests of the victim andher family steering They didn't want it to
turn into something like what happened tothe duallabies. Just days later, however,
it was announced the thirty three yearold Mark A. Melcher who being
or asked for the abduction and sexualassault of little girl. He was connected

(47:01):
to the crime scene when his fingerprintswere discovered on the bedroom windows screen.
The tip that led to Melcher hadcome from Alsip police, who around a
month earlier had arrested him after heattempted to lure two ten year old girls
to a vacant lot. He hadbeen questioned by police, but since no
crime had been committed, he wasreleased. After Midluthian police tracked him down.

(47:24):
He was ordered to provide hair samplesas well as finger and palm prints,
and it was found to be amatch to the evidence left behind at
the crime scene. Following his arrest, it was also revealed that he had
been in prisoned from February of nineteeneighty seven until May of nineteen eighty nine,
which meant that he could not havebeen involved in the abduction and murderer

(47:45):
of Jacqueline. While this update wascrushing to Dayvid's defense, in a way,
it still bolstered their case. Theprosecution had been so adamant and so
sure that it was physically impossible fora stranger to break into somebody's home in
the middle of the night and abducttheir child from right under their noses.

(48:06):
This was just another kiss that provedthat it was very much plausible. Yes,
yes, there were there were twoor three other cases and in the
vicinity in which people have entered threebasement windows like this and attempted to about
children. In um. Two ofthose cases I think they were, and

(48:31):
we looked into those. I'm convincedthat there that they were unrelated to the
Drawby case, except of course,that they showed that it was possible.
You know, there was one ofthese guys, I remember, it's kind
of a strange situation that he hadbeen convicted of breaking into a house,
taking out a little girl, molestingher in a field, and it occurred

(48:52):
nearby, and this guy was inprison, and of course he couldn't have
done the Daby crime because he hadbeen in prison at the time, been
in police custody at the time ofthe day crime. I you know,
I remember trying to find out.I was going to see if the police
had done something, but the samehome or something. In mid July,

(49:20):
Cook County Juvenile Court Judge Robert Smearsiacgranted permission for Davy to go back home
and live with Cynthia and his sisterCurley, who were now living in Tinley
Park with Cynthia's mother Mary. TheDuallabies had to sell the families Midlothian home
to pay for their legal fees.According to testimony presented by a psychologist,
Davy's emotional health had been declining dueto the anxiety he was experiencing from being

(49:44):
separated from his parents. He hadexpressed a loss of interest in life because
he struggled to be away from Cynthiaand David. Davy could barely contain his
excitement when he learned he was goingto be back with his family, with
those who loved him, whilst Thiawasn't granted full custody and could never be
alone with her children. This wasa step in the right direction. Ed

(50:07):
McManus, a spokesman for the state'sattorney's office, said that the state was
disappointed with the decision to reunite Davywith his family, but said that they
accepted the decision of the court.He further stated that the state would try
and remove both Davy and Carley fromCynthia's care at the September child abuse trial,
and that he believed they had agood case against the family. Before

(50:29):
July came to a close, aroundone hundred and thirty friends and relatives of
Cynthia and David packed the Hupe ChristianReformed Church in Oak Forest to pray for
the couple. Most of those inattendants wore thin ribbons around their wrists,
read for courage and white for purity. They explained that they would be keeping
the ribbons on until David came home. A number openly blamed the police,

(50:53):
county prosecutors, and the media fora miscarriage of justice and called for the
case to be reopened. Cynthia's mother, Mary, spoke with the Chicago Sun
Times and said, someone knows whathappened to our precious girl, and with
God's help and the support of moralpeople everywhere, her murderer will be found.

(51:14):
Cynthia sat at the front of thechurch as the service began. Reverend
Bill Lenters gave prayers while two ofDavid's sisters read Sam one hundred and forty
two, which is a classic pleafor deliverance. Several songs were sang,
while eight short speeches were read out. Mary described David as the only daddy
that Jackline ever knew and said thatshe thanks God for that. She said

(51:37):
she had all the things a littlegirl could want, but the greatest was
the unconditional love of her mommy andDaddy, who guided her as best they
knew how. Cynthia was determined towin back full custody of Davy, who
was still living with David's sister andher husband. According to Janet Trafel,
the hospital workers amount Sinai had decidedthat Davy had been abused before they even

(51:58):
examined him because they had been contaminatedby police misinformation. She contended that police
had given the hospital workers their versionof Jacqueline's murder by referring to the graphic
photographs of Jacqueline the Morgue and byclaiming that Davy had been locked in his
bedroom and David had punched holes inhis bedroom door. She showed reporters the
photographs of Davy, which had beentaken the day after his parents had been

(52:22):
arrested for Jaquelin's murder. The photographshowed three minuscule marks. There was a
small scrape on his finger, abruise on his foot, and a small
scratch on his back. According tothe physician who examined Davy, these marks
implied that he'd been abused by hisparents. Janet Rafela instead argued that the
small bumps and scratches were consistent inlittle children and certainly did not indicate abuse.

(52:47):
Shortly after the release of the Channelfive reports, an Illinois Pellet court
ruled that David could be released ona five hundred thousand dollar bond while he
appealed his conviction. That meant thatif David posted fifth two thousand dollars in
cash, he could be released.However, just days later, Judge William
Clark delayed the order. This meantthat David's fate would be in the hands

(53:08):
of the Ilknois Supreme Court. Ifthey were to uphold the bond rooling,
then David could be free pending theappeal of the murder conviction. If the
Supreme Court were to uphold the state'smotion, then David would remain in Cook
County Jail during the appeal. ReneeGoldfarb, who was the supervisor of the
Appellate Division of the Cook County StatesAttorney's Office, announced the prosecution would do

(53:31):
their best to get the case infront of the Supreme Court as quickly as
possible. David was overjoyed and ranghome to tell them he would be back
soon. He packed his belongings andeagerly awaited word that he was leaving.
The following day, the Ilknois SupremeCourt justice temporarily blocked the appellate court decision
to release David on bond. CookCounty States Attorney spokesman Dan McCullough said,

(53:55):
we don't think it's appropriate for misterde Wallaby to be free after having been
convicted murdering his seven year old daughter. The Illinois Supreme Court would rule in
favor of the prosecution and revoked thefive hundred thousand dollars bond, meaning that
Davia would have to remain behind barsat least until his appeal could be decided.

(54:15):
The update was crushing to Cynthia andthe rest of the family, who
had believed the Davia would be cominghome. David would remain in prison while
awaiting his appeal, and they wouldneed a more experienced lawyer to handle it.
Protest has suggested Bob Biman, andit was time to call him.
Bob Biman told us about how heheard about the case. Well, I

(54:37):
became aware of it the way mostof the public did, just by reading
the news. It was a sensational, startling fact that a seven year old
little girl had shown up missing froma suburban home. And then every day
the news and this would be localChicago news. I think the national news

(54:59):
picked it up briefly, but inlocal Chicago news it dominated the news for
years. But for six days,everybody had a sort of collected collective holding
their breath. And then the bodywas found, and then the news started
to just dribble out. As fora couple of months, the police had

(55:20):
no leads, they didn't know whothey could charge or whether they would charge
anybody. And then suddenly around Thanksgiving, the dualities were charged. And then
I followed the news, and fromreading the news it sounded like, boy,
these people really are guilty. Andthen the trial finally came out,
and from looking at the news,I kept on saying, wait, that's

(55:42):
what their reporting happened in court.That doesn't sound like evidence of guilt.
And then day after day and thetrial took a while, but all of
the reporting was that everything that washappening in the courtroom was to prove that
Jacqueline had once lived and then died. There wasn't anything that linked the parents
to it. And so it wasno shock when we learned that Cindy had

(56:08):
been cut loose on a motion fordirected verdict. But it was a huge
shock that David was convicted. AndI was again just sitting there as a
consumer of news at that point.Then I got a call from Dave Protest's
wife, Joan, who I hadhad several cases with before. She was
a lawyer at Sidling in Austin,and she asked me if my firm might

(56:31):
consider handling the appeal. And I'llbe honest, my desire to do.
It was strictly out of self interest, mainly because I wanted the excuse to
read the record. I was intellectuallycurious about how these people could have been
convicted based upon what I had readin the press. So I went to

(56:54):
my executive committee. It was aclose vote. My executive committee did not
want to take the case because itwas going to be a substantial amount of
resources. There was a guy atour firm who was our chairman for twenty
or twenty five years. He wasvery important to our firm. He was
very important to me. He wasmy mentor, and he was one of

(57:16):
the distanting votes. And he cameto me and said, of all the
people we could represent on a probono basis, why would we want to
represent baby killers. Thank you forlistening to today's episode of The Shattered Window.
The Shottered Window is a completely independentpodcast paid for out of our own

(57:37):
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(58:00):
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(58:21):
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