Prosecutor trick cited as new trial is ordered

By Steve Mills and Maurice Possley; Chicago Tribune

February 10, 2004

A federal judge Monday granted a former Death Row inmate a new trial, ruling a Cook County prosecutor broke court rules to trick defense lawyers into not calling a witness who would have testified their client was innocent.

Blasting the prosecutor, as well as a Chicago police detective, for intentional misconduct, U.S. District Court Judge Matthew Kennelly ordered a new trial for Floyd Richardson, who was sentenced to death for the 1980 murder of store clerk George Vrabel during a South Side robbery.

Kennelly ruled that former prosecutor Henry Lazzaro engaged in "intentional deception ... that successfully tricked [defense lawyers] into deciding not to call a key eyewitness who would have said that Richardson was not the man who robbed and murdered George Vrabel."

Lazzaro's deception violated fundamental U.S. Supreme Court rulings designed to protect defendants against misconduct by prosecutors, Kennelly ruled.

Richardson's lawyer, Joshua Sacks of the Illinois State Appellate Defender's Office, who handled the case with attorney R. Dickey Hamilton, said, "In 30 years of practice, I've never had a lawyer flat-out lie to a judge like this."

Further, Kennelly ruled that former Chicago police detective John Solecki had fabricated a report saying that three witnesses picked Richardson out of a lineup.

False testimony

Kennelly ruled that Lazzaro and Solecki, in an attempt to provide innocent explanations for their misconduct, testified falsely at a federal court hearing in 2001.

Lazzaro, who now works for the U.S. Department of Defense as an attorney in the Defense Legal Services Agency, could not be reached.

Solecki, who is retired and lives in Michigan, said he was upset about the ruling and declined further comment.

Richardson, 49, has been in prison for nearly 23 years.

His death sentence was commuted last year to life in prison without parole when Gov. George Ryan emptied Death Row.

Kennelly gave prosecutors 120 days to decide whether to retry Richardson or set him free. A spokeswoman for Cook County State's Atty. Richard Devine said that prosecutors look forward to appealing the decision, which would likely stay the ruling.

"We are disappointed in the judge's decision. We disagree," said the spokeswoman, Marcy Jensen.

Richardson was convicted of the April 1, 1980, murder of Vrabel, 67, an Alsip man who worked part time as a clerk at Twin Food and Liquors.

Same bullets in bar robbery

The case against Richardson consisted mostly of eyewitnesses whom Solecki said had picked him out of a lineup two years after the murder. At trial, Lazzaro and co-prosecutor Jack Hynes also presented evidence that a bullet fired in the murder came from the same gun used in a nearby tavern robbery four days after Vrabel was killed.

The gun was never recovered, but prosecutors alleged Richardson committed both crimes, even though he could not be linked to the bullets.

In a 39-page opinion, Kennelly said that some of the eyewitnesses who identified Richardson had a poor view and may not have been reliable because they suffered the trauma of witnessing a crime.

Others Solecki alleged to be eyewitnesses simply were not, Kennelly said. The judge's decision hinges on a critical moment in Richardson's 1984 trial when his defense lawyers were about to conclude their case by calling Myron Moses.

Moses, the ruling said, was going to testify he was walking with his girlfriend outside the store when the killer emerged. The man he saw, said Moses, was not Richardson.

Not the killer

At the last minute, Lazzaro told the trial judge, George Marovich, that he would call a rebuttal witness--Leonard Butler--who was the brother of Moses' girlfriend and a Rosemont auxiliary police officer. Lazzaro told Marovich that Butler would testify that Moses had admitted that Richardson was the killer.

Richardson's lawyers consequently never called Moses to testify.

Kennelly said Lazzaro intentionally misled defense attorneys.

At the August 2001 hearing, Butler testified that Lazzaro never talked to him and that Moses had never told him of seeing Richardson come out of the store after the killing.

Moses testified he had insisted to Lazzaro that the killer was not Richardson--information that Kennelly said Lazzaro never gave Richardson's attorneys in violation of court rules that prosecutors disclose information favorable to a defendant.

Prosecutor not truthful

Kennelly said Butler and Moses were truthful and Lazzaro, who insisted his courtroom representations were accurate, "lacked credibility completely."

Kennelly said Solecki was "utterly lacking in credibility based both on his demeanor and the content of his testimony." The judge said a police report in which Solecki wrote that three witnesses tentatively identified Richardson appeared to be a complete fabrication.

At the hearing, Solecki attempted to "embellish these purported `identifications' even further by making up a non-existent photographic identification by Myron Moses," the ruling said.

"Even giving Solecki the benefit of the doubt," Kennelly wrote in his opinion, "the Court is unable to attribute this to a mistake, poor memory or the passage of time; it was, quite simply, an untruth."

Attorney Thomas Peters, who previously represented Richardson in unsuccessful attempts to set aside the conviction, said he had not sought out Butler in the past because he believed Lazzaro's representation at the trial.

"It's clear that was a fraud on the court," Peters said Monday. "Defense attorneys rely day in and day out on representations made by prosecutors as to their evidence, what prosecution witnesses are going to be called and what those witnesses are going to say."

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