But judge agrees to hear request for special prosecutor.
By: Clifford Ward, Chicago Tribune: April 23rd, 2016
The man convicted in what jad been dubbed the nation’s oldest cold case to go to trial walked out of the DeKalb County courthouse Friday after prosecutors formally dropped murder charges against him.
Jack McCullough, 76, was expected to return as soon as possible to the Seattle area, where he had been living before he was arrested in 2011 for the murder of Maria Ridulph, 7, who disappeared from a Sycamore street on a December evening in 1957.
“He’ll be on the first plane back to Washington,” said Casey Porter, who is married to McCullough’s stepdaughter, Janey O’Connor.
At the behest of prosecutors, DeKalb County Judge William Brady, who last week had vacated McCullough’s conviction and ordered a new trial, dismissed the murder charges that still remained on file.
However, the judge declined to bar a potential future refiling of charges, and he agreed to hear further court action on a motion filed by Maria’s brother, Charles Ridulph, who wants the judge to appoint a special prosecutor.
Ridulph wants a special prosecutor to review decisions made by DeKalb County State’s Attorney Richard Schmack, who believes McCullough is innocent of the girl’s murder and who last month set in motion the process that led to Friday’s dismissal.
This week, Schmack, who was not state’s attorney during McCullough’s prosecution, filed a motion asking the murder charges be dismissed with prejudice. That would have barred any future prosecution of McCullough.
But Brady said that a dismissal with prejudice would mean he had made a decision about McCullough’s guilt based on the merits of the case. That decision, Brady said, would have been at odds with the more limited ruling he made last Friday, when he said there was new evidence substantial enough to cast doubt on McCullough’s 2012 conviction.
“I’m going to keep an open mind,” Brady told Schmack and attorneys representing McCullough.
McCullough has been free on a personal recognizance bond since his conviction was vacated.
He followed Friday’s proceeding from a courtroom table, wearing a dark windbreaker, slacks and a dark green button-down shirt, and he showed little reaction to Brady’s decision. McCullough was not available for comment after the hearing.
McCullough had been ordered last week to remain in Illinois, but with the dismissal of charges, he was free to return home.
But elements of the case will continue without him. The court set a June 23 date to hear Charles Ridulph’s special prosecutor request. Attorney Bruce Brandwein, representing Ridulph, presented a petition signed, he said, by the hundreds of residents asking for the appointment of the prosecutor.
The judge said he wouldn’t consider a petition — “That’s not evidence, that’s opinion,” Brady said — but said he would explore assertions made by Ridulph that a special prosecutor is warranted.
Schmack and McCullough’s attorney, Shaun Van Horn, again argued that the conditions that would lead to a special prosecutor, like a conflict of interest, don’t exist. Ridulph, they argued, merely disagrees with Schmack’s contention that McCullough is innocent.
“That’s conflict of conclusion, not conflict of interest,” Schmack told the judge.
Following the hearing, Charles Ridulph said he was pleased the judge will hear his motion. He said the petitions in support of a special prosecutor demonstrated the love and support of Sycamore residents.
McCullough lived in Sycamore in 1957, and authorities alleged that he was the man named Johnny who approached Maria Ridulph and a friend as they played on a street corner in the early evening of Dec. 3, 1957.
Maria’s disappearance became national news and involved the FBI. Her body was found five months later in northwest Illinois, but no one was arrested until police reopened the case and identified McCullough as a suspect.
He was found guilty at a bench trial at which Maria’s playmate identified him as Johnny and sentenced to life in prison. After an appellate court upheld his conviction, McCullough filed motions seeking post-conviction relief. That petition led Schmack to review the evidence. Last month he announced that based on his review, McCullough could not have been in Sycamore at the time Maria disappeared.
In a court filing last month, Schmack said that original investigative reports reliably placed the time of Maria’s disappearance as between 6:45 p.m. and 6:55 p.m., and that McCullough placed a collect telephone call from a downtown Rockford pay phone just before 7 p.m. It would have been impossible for McCullough to travel from Sycamore to Rockford — a distance of 35 miles — in such a short time, Schmack said.
The prosecutor was also critical of the manner in which a photo lineup was shown in 2011 to Maria’s friend, Kathy Chapman. She picked out a 50-year-old image of McCullough from a group of photos as being that of the man who approached her and Maria that evening.
Schmack called the array “suggestive in the extreme” because the old picture of McCullough was a snapshot with a dark background and the other photos used were 1950s yearbook portraits with light backgrounds. Chapman’s identification of McCullough, Schmack said, was “clearly an unintentional and tragic mistake on her part.”