by Joe King

Shortly after midnight on Aug. 7, 1991, gunfire erupted from two cars creeping along the 500 block of 71st Street on Chicago's South Side. By the time the cars sped away, investigators say, at least 71 shots had been fired. Three members of the Gangster Disciples street gang lay dead or dying and two more were injured.

Terrence Brooks, 17 at the time, swore he was at the movies when the crime took place, but no one would listen. Not the police who arrested him without an eyewitness; not the prosecutors who singled
him out of a crowd of alleged shooters for the strictest prosecution; not the judge who heard his case, convicted him and sentenced him to death.

NIU Law Professor Lorraine Schmall, however, listened. Starting in 1997, she worked with NIU law students to unearth new evidence in the case, hoping to not only free Brooks from Death Row, but to prove his innocence.Working on Brooks’ behalf, Schmall and her students got a firsthand glimpse at flaws in the legal system that former Illinois Gov. George Ryan says prompted him to commute the sentences of all Death Row inmates to life in prison last December.

That news came as a surprise, says Schmall, because hearings conducted last fall to review the cases of all Death Row inmates offered little hope that clemency was in the offing.

“It was a zoo,” she says of the process. “The panel was completely frazzled by the time we appeared.We were given all of 15 minutes to make our case. The whole thing felt rather pro forma.”
At that hearing, a case for clemency was made based upon the 11 volumes (some 2,600 pages) of evidence dug up by Schmall and 20 students in 1997 and 1998. The class was assisted in the process
by attorney Juliet Yackel, a noted death penalty opponent.

Some of the work was technical, learning the ins and outs of the law, but much of it was good old-fashioned detective work. The students tracked down eyewitnesses with whom police and prosecutors had long since lost touch. They obtained statements from two eyewitnesses who recanted their testimony. They found experts who called into question the abilities of any witnesses to have identified a shooter at the scene. They interviewed family members and photographed the crime scene. In the minds of many in the class, they established Brooks’ alibi as truth.

After two semesters of work, the process became bogged down in a seemingly endless labyrinth of hearings, and the class was disbanded while Schmall carried on the fight with assistance from outside attorneys.

While the students’ efforts ultimately did not play a part in removing Brooks from Death Row, it still taught them many important lessons about Constitutional issues in the lives of ordinary people and the important role that attorneys play in the legal system.

“I hope it taught them about the need to always search for the truth and not to believe something simply because a trial has been held and a verdict reached,” Schmall says. “I think that, for many, it
was the first time they realized how limited appellate review is and how important it is to make your case as strongly as possible the first time.”

Those were all important lessons, say graduates of the class, but, for some, the value of the experience went far beyond those things. It made them question their beliefs about the legal system and reconsider their views on the death penalty.

For at least three from that class, those views continue to evolve to this day, heavily influenced by what they learned in the class.

JENNIFER CACCIAPAGLIA

When Jennifer Cacciapaglia enrolled at the NIU College of Law, she was determined to save the world, or at least its children.

“I was certain I wanted to be a prosecutor,” she says. “I wanted to put people in jail for hurting kids.”
So passionate were her feelings on the subject that she was certain, should the situation ever arise, she wouldn’t shrink from prosecuting a capital case. “I came in very much pro death penalty—there
was not a doubt in my mind,” she recalls.

It might seem strange for someone with such an attitude to enroll in a class devoted to a death penalty appeal. To Cacciapaglia, however, it was a smart career move. “I knew I didn’t want to be a criminal defense attorney, but I thought I would take advantage of this unique opportunity to see how the other side thought. As it turned out, it also changed the way I think.”

Early on in her research Cacciapaglia became shocked by the allegations many witnesses were leveling against police in the case. She soon discovered that several officers involved had long histories of alleged abuse of prisoners. One had even been investigated by Amnesty International
and charged with engaging in systematic torture. This conflicted strongly with what she knew of police (she was married to a police officer at the time) but it also made her question the testimony of all cops
involved in the case. Soon, she also was questioning the behavior of just about everyone involved in the case, including lawyers and even the judge.

“Terrence had ticket stubs for the movie he was attending at the time of the shooting, and his lawyer never introduced them into evidence. His lawyer never even called as witnesses the three people
Terrence was with that night. The judge actually dozed off a couple of times over the course of the trial,” she says, angrily listing some of the transgressions she considers the most serious. “That’s the
process that sentenced this man to death?

Based upon what I learned, I don’t just believe Terrence is innocent, I know he is innocent.”

While she was shocked to see the warts of the legal system revealed, those are not the images from the class that remain most vivid in her mind. Instead it is the inequities of society that were revealed to her.

While raised in Rockford by a single mother in a home of very modest means, nothing prepared her for what she saw when she went into the Englewood neighborhood. Most chilling, she says, was what she learned about gang life and how some people are almost predestined to choose that path.

“I learned that, much in the way I was born and raised Catholic, Terry was born and raised a Gangster Disciple,” she says. “I challenge anyone to put themselves in the shoes of those kids living in those conditions and walk away from the kind of money they see gangbangers flashing around.

“These gangbangers are our monsters. Society created them,” she says. “But we don’t give them one thought until they screw up or hurt us—then we want to throw them on Death Row and make somebody pay. I think that attitude is terribly sad.”

After graduation, Cacciapaglia became a prosecutor, landing her dream job in Winnebago County, prosecuting domestic abuse cases, including cases against child abusers. She stayed there for two years before the emotional toll of the job proved too much. Today she is an attorney for the City of Rockford.

Disturbing as her experience as a prosecutor was, it also convinced her that, despite what she saw working on the Brooks case, some crimes demand the ultimate penalty.

“In theory, I am not against capital punishment. But seeing what I saw in that class, I can’t stand up for the way the death penalty is applied in this state or any other,” she says.

Conversely, she also does not approve of the actions of former Governor Ryan. “I agree with the sentiment behind what the governor did, but I think the way he went about it undermined the work of
police and prosecutors who work hard to give everyone a fair trial.”

She admits such sentiments might seem contradictory on the surface, but it is consistent with the most important lesson she learned while working on the Brooks appeal.

“I was very naïve going in, thought everything was black and white, but this case showed me that everything is shades of gray.”

JACKIE THOMPSON

Working on the Terrence Brooks death sentence appeal taught Jackie Thompson that courtroom battles can indeed be matters of life and death.

It is a lesson fresh in his mind as he prepares for what could be his first capital case as a lawyer. Now a captain in the U.S. Army and the acting senior defense counsel at Ft. Campbell, Ky., he is representing Sgt. Hassan K. Akbar, the Army engineer accused in the deadly earlymorning grenade attack on fellow soldiers of the 101st Airborne Division in the Kuwaiti desert shortly before U.S. forces attacked Iraq. The Army will decide soon whether to pursue the death penalty.

It might not make him popular in the ranks, but Thompson is determined to provide Akbar with every protection to which a U.S. citizen is entitled. It is his sworn duty, not only as a soldier, but also
as a lawyer.

“I hold people to the standards set by the Constitution,” he says. “Sometimes, especially in a capital case, a defense attorney is the only person who can act as a check on the system.”

His work on the Brooks appeal demonstrated to him the tragic consequences that can result when a lawyer shirks that duty.

Thompson brought more than a passing knowledge of police work with him when he joined the class. He not only had a degree in criminal justice, but was also an officer in a military police unit of the
Illinois National Guard and had served overseas during Desert Storm. Those experiences made him question much about the Brooks case. Conversations with people involved in various aspects of the case made him suspect that key testimony against Brooks was coerced under duress and that defense
counsel did little to stop prosecutors from using what he considers trumped up versions of alleged prison behavior to justify sentencing Brooks to death.

Those things were upsetting, but hardly surprising to Thompson who knew firsthand that some police officers were not above pushing the limits of the law. He saw it during the five years he spent living
in a Louisiana housing project with his mother. Those lessons were reinforced when he was a young black man living in North Chicago with his father. One such incident changed his life.

He was a teenager driving to a Chicagobeach with friends when they were pulled over by police, held at gunpoint, searched and berated. Their crime: driving a Buick in an area where many Buicks had allegedly been stolen.

“When I asked them for their badge numbers I was shoved into a trunk and called a little asshole nigger,” he says. “That’s when I decided to become a lawyer.”

The decision was not born out of a desire for revenge, but rather out of a sense of powerlessness. Knowledge, he decided, was power, so he set out to learn about the law. Nothing he learned along
the way to getting his degree in criminal justice, or working as an MP or in law school, he says, taught him that such behavior was justifiable.

“My experience has taught me that police are put under a tremendous amount of stress, but that doesn’t give them the right to trample on people’s rights or lives,” he says.

Thompson entered the class with a strong anti-death penalty bias and what he saw in the Brooks case reinforced his belief. However, his experiences since then, working as both a prosecutor and a defense attorney, coupled with recent world events, have prompted him to have a change of heart.

“I sit in front of you today, as a defense attorney, and tell you that I support the death penalty,” he says. “My experience with the judicial system, seeing the fallibility of people, those things previously
persuaded me that the death penalty was not appropriate. Now I know from my own personal experience that there are some crimes that are so horrific that there is no other fitting penalty.”

But, the circumstances for such cases are extreme, he says, and in every such instance, the accused should absolutely be assured of the best possible defense, not just the best they can afford.

“Johnnie Cochran coined the phrase ‘innocent until proven broke.’ I think that is what happened to Terrence Brooks,” he says. “That simply isn’t good enough to put a man on Death Row.”

RICHARD IRVIN

Prior to taking Lorraine Schmall’s death penalty appeals class, Richard Irvin never had met Terrence Brooks, but he knew him.

Growing up in the Indian Trail Apartments on the east side of Aurora, Irvin was surrounded by people just like Brooks, people whose entire lives revolved around gangs. “I saw my own brother
become involved in crime and gangs and drugs, so I understand firsthand how it can happen,” says Irvin.

Irvin himself had a brief flirtation with gang life, he admits, and could have easily gone the same route as Brooks. Instead, he saw other possibilities and found ways to break the cycle of poverty that plagued both of their families. He chose to serve in the military (including time overseas during Desert Storm) and to pursue an education. Ironically, the case of Brooks, who did not travel that path, taught Irvin some of his most valuable lessons.

Some of what he learned was technical, such as how to evaluate the credibility of evidence in a case.Walking the streets of Englewood, speaking to those involved in the shooting, Irvin weighed for himself what the class discovered. In the end, he found some of the information less compelling than other classmates and, consequently, was not convinced of Brooks’ innocence.

“I wasn’t as impressed with him as everybody else, probably because of where I grew up. I knew that you don’t attain that kind of status in a gang if you aren’t willing to pull a trigger or at least give the order,” he says.

Still, what he heard was enough to cast doubt on the state’s case, and that alone convinced him that Brooks did not belong on Death Row. “I believe he was involved in this incident, but the evidence was circumstantial. Too many witnesses had differing stories,” Irvin says. “Because of that I don’t think we can take his life.”

The case also revealed to him inequities in the legal system, especially in capital cases.

“Working on the case taught me that how the law is applied often depends upon your bank account,” Irvin says. “I think a person should be entitled to the same due process, whether they are the richest or poorest person in the world.”

The most important lesson that he learned from the Brooks case, however, was to never forget that the law is about people.

“Entering the class, I had reached a point where I was forgetting that the accused were more than criminals, that they were also people. The class helped me remember where I’m from and reminded me to hang on to that perspective.”

That lesson served him well during his four-and-a-half years as a prosecutor in Kane County. He recalls, once early in his career, telling a supervisor how difficult it was to prosecute people from his old neighborhood, which was nearly a daily occurrence.

“He pulled me aside and told me that not only would I be a prosecutor, but a good one, because I could care about those people and treat them much more fairly than other prosecutors who didn’t understand where they came from. At first it was a burden, but ultimately I understood he was right and it became an inspiration.”

Irvin now works as a defense attorney (and has announced he will run for mayor of Aurora in the upcoming election), but he has not changed his view that the death penalty is a necessary evil. However, he does feel the courts must practice more care in their application.

“I believe that people who commit terrible crimes against others need to be punished, and that includes the death penalty,” Irvin says. “But as long as there is human involvement, there is the potential for mistakes. If we as a society are going to take people’s lives, we need a higher burden
of proof. The burden in death penalty cases should be beyond all doubt, not just simply beyond reasonable doubt.”

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