IN THE CIRCUIT COURT OF THE TWENTY-THIRD JUDICIAL CIRCUIT DEKALB COUNTY, ILLINOIS Rope she Sante of Tinos _)- courrcaseNos_l|- CE — 4S4 Plaintiffs), ) 7 ; FILED ack. D. Me Coliou: ; MAR 3.0 2016 = Dendy ) tee Aton ot Deka County nog NOTICE OF MOTION TO: [[] Vacate CO Travel. & Other Sike Spatial Prosauutor. on Foday , fen'| 1, Zoi. a $230 _o..m, or as soon thereafter as counsel may be heard, I shall appear before the Honorable _Willi»m_P. Brady or any judge sitting in hisher stead, in Courtroom _22.0 _, or the Courtroom usually occupied by him/her at: EA 133 West State Street, Sycamore, IL 60178 1 200 South 4% Street, DeKalb, IL 60115 (128 East Railroad Street, Sandwich, IL 60548 Dated: Mech 30 20> Phone #: 312-923 ~2808 Print Name: ie) A. Fuentes sign Name: PZCL Nace of Maton Revised 0572072014CERTIFICATE OF SERVICE Gabriel A. Fuentes, an attorney, hereby certifies that on March 30, 2016, he caused copies of the Motion to Strike Emergency Motion for Special Prosecutor to be served upon counsel listed above, via hand delivery. 2424824.1IN THE CIRCUIT COURT OF DEKALB COUNTY STATE OF ILLINOIS STATE OF ILLINOIS, ) Plaintiff, } FI L ED v. } Case No. 11-CF-454 MAR 30 2016 JACK MCCULLOUGH, ; cist the Choate Defendant, ; lagen DEFENDANT JACK MCCULLOUGH’S MOTION TO STRIKE EMERGENCY MOTION FOR SPECIAL PROSECUTOR Mr. Charles Ridulph, who is the brother of the victim in this case, is understandably aggrieved by the horrific murder of his sister and undoubtedly has an important interest in having justice served. However, his emergency motion to appoint a special prosecutor in this case does not meet the legal requirements for such an appointment and should therefore be denied. Pursuant to 735 ILCS 5/2-615, Mr. McCullough moves this Court to strike M. Ridulph’s “Emergency Motion for Special Prosecutor.” BACKGROUND Jn 2012, Mr. Jack McCullough was convicted of murder. Following an unsuccessful direct appeal, Mr. McCullough filed a petition for post-conviction relief in 2015. The petition was denied on September 16, 2015. On December 11, 2015, he filed a pro se Motion for Leave to File Successive Post-Conviction Petition Actual Innocence Claim / Void Judgment pursuant to 725 ILCS 5/122-(1)(F) et seq. and 725 ILCS 5/2-1401, in part based on new evidence exonerating him. On March 25, 2016, the State’s Attorney joined Defendant’s petition. 2924835.On September 30, 2013, Mr. Ridulph filed a pro se “Emergency Motion for Special Prosecutor,” purportedly under the “Victim’s Right’s [sic] Act,” asking the Court to appoint a special prosecutor to replace the current prosecutor, Mr. Richard Schmack, because Mr. Schmack is not opposing Mr, McCullough’s post-conviction petition. Mr. Ridulph alleges that Mr. Schmack has “ignored” prior court rulings and “all other evidence” (Mot. at 1), was “rude and dismissive to our family and made it clear that he was Jack McCullough’s advocate and not [the vietim’s]” (Jd. at 2). ARGUMENT Mr. Ridulph secks relief under the “Victim’s Right's Act,” which is an apparent reference to 725 ILCS 120, the “Rights of Crime Victims and Witnesses Act.” That act does not provide for the replacement of the prosecutor by the victim’s family or anyone else. Because Mr. Ridulph relies on authority which does not provide for the relief he seeks, his motion should be denied for that reason. Although not mentioned in his motion, the motion is an apparent attempt to seck relief under 55 ILCS 5/3-9008, which provides for appointment of a special prosecutor where the State’s Attomey is “sick, absent, or unable to fulfill his or her duties” or has an “actual conflict of interest in the cause or proceeding.” Relief is appropriate only where the State’s Attorney is, ‘interested as a private individual” or “an actual party to the action,” or where the parties are “so intertwined as to create a conflict of interest.” McCall v. Devine, 334 Ill. App. 3d 192, 198-99 (2002) (denying relief where no facts alleged that state’s attorney had a conflict under either category where victim’s mother sought special prosecutor to investigate and prosecute police officers for killing of her son). Mr. Ridulph alleges no facts suggesting that Mr. Schmack falls into any of the three categories articulated in McCall. Mr. Schmack’s decision to join Mr. McCullough’s petition for 2aee3s..post-conviction relief does not mean he is conflicted; it means that, as an officer of court, based ‘on the facts ~ in particular based on new evidence exonersting Mr. McCullough — Mr: Schmack believes that post-conviction relief is appropriate in this case. CONCLUSION ‘Based on the foregoing, Mr. McCullough respectfully requests that the Court strike Mr. Ridulph’s motion. Dated: March 30, 2016 Respectfully submitted, Jack McCulloigh By ine of Hi At Gabriel A. Fuentes Shaun M. Van Hom JENNER & BLOCK LLP (#05003) 353 N. Clark Street Chicago, IL 60654 Telephone: (312) 222-9350 Facsimile: (312) 840-7395 240483541IN THE CIRCUIT COURT OF THE TWENTY-THIRD JUDICIAL CIRCUIT DEKALB COUNTY, ILLINOIS Feogle of rhe Siaie of Linas Plaintifits), ) } [ > FILED Jock D. Me Collough } Deland ) MAR 30 2016 Clerk of the Cireuk Court Meureon A. Josh NOTICE OFOMOBIO Neos courrcaseno.,_ || - CF - 454 TO: [Vacate O Travel Other Fry mmenten the Aetdinos an Fer Tirmetuate Relense Basak on Arcual Lnnounce On Fr day Ape} t, 2016 , at _%:30 om, or as soon thereafter as counsel may be heard, | shall appear before the Honorable _d Iki , or any judge sitting in hishher stead, in Courtroom 22-0 _, or the Courtroom usually occupied by him/her at: 133 West State Street, Sycamore, IL 60178 C200 South 4" Street, DeKalb, IL 60115 [1 128 Bast Railroad Street, Sandwich, IL 60548 Dated: March 30 , 2Olb Phone #; 3|Z- 923 - 2808 Print Name: _(sabciel Sign Name: Notice of Motion Revised 05/2072016CERTIFICATE OF SERVICE, Gabriel A. Fuentes, an attorney, hereby certifies that on March 30, 2016, he caused copies of the Motion for Judgment on the Pleadings and for Release Based on Actual Innocence and the accompanying Notice of Motion to be served upon counsel listed above, via hand delivery. Gabriel A. Pe FILED MAR 30 2016 ‘Maureen A. Josh Clerk of the Circuit Court lb County, iinois 2424822.1IN THE CIRCUIT COURT FOR THE TWENTY-THIRD JUDICIAL CIRCUIT DEKALB COUNTY, ILLINOIS FILED ‘The People of the State of Illinois, ) MAR 30 206 ) Plaintiff, ) Maursea A. dost ) Clerk of the Circuk Court vs. y NO. 11 CF 454 Dekalb County, tlinois, Jack D. McCullough, : The Honorable William P. Brady ) Defendant. ) iD FOR IMMEDIATE RELEASE BASED ON ACTUAL INNOCENCE Jack D. McCullough, by and through his attomeys, Gabriel A. Fuentes and Shaun M. Van Hor of Jenner & Block LLP, respectfully moves this Court for judement on the pleadings and for Mr. MeCullough’s immediate refease based on actual innocence. In this matter, the duly lected State’s Attorney of DuPage County, who represents the People of the State of Illinois (‘the State”) in this action, answered Mr. MeCullough’s pro se petition under 735 ILCS 5/2- 1401 on March 24, 2016 by stating, without equivocation, that the State joins in Mr. McCullough’s petition including his plea to set aside the judgment of guilt in this case. (See Ex. A, State Answer at 4.). ‘The State’s Attorney further stated that his support for the motion to set aside he judgment of Mr. McCullough’s guilt was “compelled” by his ethical obligations to seck remedy for wrongful convictions. (/d) ‘The State’s Attomey also filed a detailed, 34-page report, documenting the factual findings in support of his conclusion that Mr, McCullough’s conviction was and is wrongful. (Ex. B, State’s Rule 3.8(g) and 3.8(h) Report.) The State’s Attomey’s findings, after a six-month investigation, left no doubt that Mr. McCullough’s conviction in the 1957 murder of 7-year-old Maria Ridulph cannot stand. Mr. McCullough respectfully moves the 2004881Court to enter judgment for him on the pleadings, which are uncontested, and for his immediate release based on actual innocence. In support of this Motion, Mr. McCullough states as follows: 2438. 1, The facts of the investigation and prosecution of Mr. McCullough in the 1957 abduction and murder of Maria Ridulph are set forth in detail in the State’s Rule 3.8(g) and 3.8(b) Report. (See generally Ex. B.) Judgment was entered against Mr. McCullough on September 14, 2012, after a bench trial, on charges of murder, Kidnapping, and abducting an infant. He received a sentence of natural life for the murder charge, 5 years for the kidnapping charge, and 7 years for the abduction of an infant charge, The conviction was affirmed on direct appeal on February 11, 2015. People v. McCullough, 2015 IL App (24) 121364, The Circuit Court denied Mr. McCullough post-conviction relief on September 16, 2015. But by then, the State’s Attomey already had begun his exhaustive review of the investigation and prosecution of Mr, MeCullough. And on December 11, 2015, Mr. McCullough filed a handwritten, pro se motion to sct aside his conviction under Section 2-1401 based on his actual innocence. 2. With Mr. McCullough’s Section 2-1401 petition on file, the Statc’s Attorney was continuing to complete his investigation. In seeking leave to file the State Answer on March 24, 2016, nearly a month Jater than scheduled by the Court, the State affirmed that it needed the additional time to answer due to “the volume of records of the proceedings, the large amount of discovery required to be reviewed, and additional factual inquiry necessitated by the People’s obligation to answer in good faith.” 3. An objective reading of the State Answer, and the attendant Rule 3.8(g) and Rule 3.8(h) Report, demonstrates that the State's exhaustive review of the evidence in this224838. matter establishes, as the State’s Attorney agrees, Mr. McCullough’s actual innocence in this matter, such that his conviction represents a denial of due process. The State made the following unvamished assessments of what happened generally in this case: Taken together, the effect was a denial of due process from beginning to end at the investigative, pre-trial, trial, and appellate phases of this proceeding. Even without clear and convincing evidence of actual innocence, which there is, and even if there were some actual untainted evidence of guilt, which there is not, justice would still demand that the conviction be vacated based on the unfair ‘treatment Defendant received from start to finish... . Ex. B at 34 (emphasis added), Knowing the extent of demonstrably inaccurate and misleading testimony presented testimony presented at trial, T cannot grant deference to prior judicial decisions based on this evidence. Intentional or accidental, shis testimony resulted in a fraud on both th rt and the Appellate Court.” Id. at 3, . More specifically, the State’s March 24 filings demonstrated beyond doubt that an avalanche of errors and denials of due process undermined his own ability to have any confidence in the integrity of Mr. McCullough’s prosecution and conviction, The details of these errors are as shocking as they are unfortunate. Mr. McCullough provides a representative sample of them below: a, Mr. McCullough was nowhere near the crime scene at the time the crime happened. The State Answer fully admits that per the original police and FBI investigation in 1957 and 1958, law enforcement authorities accurately established that Maria Ridulph was abducted between 6:45 p.m, and 7 p.m. on December 3, 1957, in front of her home in Sycamore, whereas newly identified phone records corroborated Mr. McCullough’s account of having been miles away in Rockford at 6:57 p.m. that evening — too far away to have24048381 been present at the crime scene, (Ex. A, {9 4-8.) The prosecutor concluded that Mr. McCullough’s presence at the crime scene at the actual time of the abduction was “impossible to accomplish,” then “he cannot be guilty, regardless of any other evidence presented against him. If he cannot be guilty, then all the other evidence must necessarily be either false, whether or not intentionally or accidentally fabricated, or irrelevant.” (Ex. B at 1 (emphasis in original).) The Investigation of Mr. McCullough Advanced Material Inaccuracies Labeled a “Fraud” by the State. The State’s March 24 filings stop short of accusing the investigators of intentional fraud, but the filings characterize the State’s conduct as a fraud nonetheless, insofar as affidavits for search and arrest warrants from a Washington state court, directed at Mr. MeCullough in June 2011, claimed falsely that the victim disappeared earlier than she actually had, and that these affidavits should have contained the true time of her disappearance as determined by the FBI in 1957, as the Illinois State Police possessed all of the earlier investigative findings — “this affidavit therefore resulted in a fraud upon the Washington Court.” (Ex. A 14.) Moreover, the State put into evidence at Mr. McCullough’s trial evidence that the State says it knew to be false, namely that Witness B claimed that a search for the victim ‘occurred some two hours before it actually had occurred, indicating — falsely — an earlier disappearance. (Ex. A416.) . Investigators procured unfairly an inaccurate and unreliable eyewitness identification, The State’s filings detailed how an identification by a witness206838.1 53 years after the fact, when the witness was 8 years old, was totally unreliable and procured through impermissible suggestion. Incredibly, the photo identification by Witness A was from an array of six photos in which the five persons other than Mr. McCullough appeared in suiteoats, in photographs from a high schoo! yearbook — among other significant problems with this identification, including the witness having identified, in a separate lineup, a totally different person who bore little or no resemblance to Mr. McCullough. (Ex. A $22.) To use this sort of evidence at a criminal trial in the United States of America shocks the conscience. Not surprisingly, coupled with the powerful evidence of Mr. McCullough’s presence at the crime scene (at the true time of the crime) being a physical impossibility, the State concluded that Mr. McCullough was actually innocent by clear and convineing evidence. Much of the False Evidence Against Mr. McCullough Was Presented Despite the State’s Knowledge of Its Falsity or Significant Reason to Doubt It, As for Witness B’s false claim that the search for the victim began two hours later than it did, the State commented that “the prosecutors also knew or should have known it was false, as to the time, and were ethically obligated to correct her testimony” under the Rules of Professional Conduct, (Ex. A 19.) The State commented that having been in possession of the earlier FBI reports about the time of the abduction, the investigators who showed Witness A the photo array knew or should have known at that time that Mr. McCullough could not have been involved in the crime ~ the clear implication of the2ans38 State’s finding is that the investigators manufactured false evidence when they showed Witness A the photo array. (Ex, A 21.) Perhaps most damning was the State’s conclusion that it was “constrained to admit that at the time of the procuring [of] the arrest warrant, seeking indictment, and presenting the People’s case at trial, all of the prosecutors were, or should have been, aware of all of the materials contained in discovery gnd knew, or should have known, that Defendant could not have been involved in the abduction and murder of Maria Ridulph.” (Ex. A424.) 5. The foregoing findings of the State, and the whole of the findings contained in its March 24 findings, provide the Court with an overwhelming basis to conclude that actual innocence is established in this case, and by more than clear and convincing evidence. The imposition of a criminal conviction upon a defendant who is actually innocent represents a denial of due process under Hlinois law and is a cognizable claim for vacation of the conviction. See People v. Washington, 171 Ill. 24 475, 487, 665 N.E.2d 1330, 1336 (Ill, 1996) (Under the Ilinois Constitution, to ignore a claim of actual innocence would be “fundamentally unfair”), 6. The State's March 24 filings further establish that the State has admitted the essential allegations of Mr. MeCullough’s 2-1401 petition and that there are no material disputed issues over his innocence in this matter. Accordingly, Mr. McCullough is entitled to judgment on the pleadings. Where, as here, the facts admitted in the pleadings require judgment for one party, judgment on the pleadings pursuant to 735 ILCS 5/2-615(e) is appropriate, “It is well established that where the court can determine the relative rights of the parties in the subject matter solely from the22683841 pleadings, a motion for judgment on the pleadings is an appropriate procedure.” Bank & Trust Co. v. Arnold N. May Builders, 90 Ill. App. 3d 454, 456, 413 NE. 2d 183, 184 (2d Dist. 1980). Further, as the construction of contractual terms is a matter of law, a “trial court properly proceed[s} to construe the contracts at issue” in ruling upon a motion for judgment on the pleadings. Kravis v. Smith-Martine, Inc., 20 10. App. 3d 483, 487, 314 N.E.2d 577, 581 (Ist Dist. 1974); see also DeWitt County Pub. Building Comm'n v. County of DeWitt, 128 Il. App. 34 11, 18, 469 N.E.2d 689, 695, (4th Dist. 1984) (interpreting lease on motion for judgment on the pleadings). ’. This Motion should be granted and Mr. McCullough should be released immediately. Solely in the alternative, in any event Mr. McCullough is not released immediately, he should be granted an own-recognizance bail. The Ilinois Constitution guarantees, a criminal defendants right to bail except in certain narrow circumstances. Ill, Const. art. 1, § 9. The statute implementing this constitutional mandate, 725 ILCS 5/110-4 (®, outlines those circumstances as follows: All persons shall be bailable before conviction, except the following offenses where the proof is evident or the presumption great that the defendant is guilty of the offense: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; or felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, where the court after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person or persons(.] Section 110-7(d) allows the Court the discretion to allow bail to stand afier conviction. Bail ought to be granted here in the form of an own-recognizance bond if this matter is not finally decided in Mr. MeCullough’s favor at hearing.Dated: March 30, 2016 JENNER & BLOCK LLP (#05003) Gabriel A. Fuentes ‘Shaun M. Van Horn 353 N. Clark St. Chicago, IL 60654 Telephone: 312-222-9350 simile: 312-527-0484 2anasa8 Respectfully submitted, Jack D. McCullough