Illinois, A, 1933-1995

Greed and power

Was a poisonous

mix to Albanese
~/D9¢

By Sue Ellen Christian

and Charles Mount
TRIBUNE STAFF WRITERS

On Death Row, days before his
scheduled execution, convicted tri-
ple murderer Charles Albanese re-
tains a chilling composure. .

“I have one thing going for me
that a lot of people don’t. It’s a
clear conscience,” said Albanese,
98. “I sleep eights hours a day. I’ve
been here 13-plus years, You don’t
see me on sick calls or getting
medication to keep calm.

“Why? It’s a clear conscience.
There is only one thing to do when
you're in here: It’s to focus on the
facts and on Winning and proving
you're innocent.”

Few believe the protestations of
innocence now. But in 1981, such a
calm exterior, coupled with: Al-
banese’s reputation as a prominent
McHenry County businessman
with a family and a comfortable
lifestyle, bought him time.

Enough time to continue killing,
prosecutors say. coe

Albanese is scheduled to die by
lethal injection early Wednesday in
Stateville Correctional Center near
Joliet. He would be the sixth Illi-
nois inmate executed since capital
punishment was reinstated here in
1977,

Albanese was convicted of mur-
der in the deaths of his father, his
mother-in-law and his wife’s grand-
mother. He also was convicted of
attempted murder for trying to kill
his brother,

The case is the stuff of made-for-

V dramas, with greed for money
and power so motivating, prosecu-
tors say, that Albanese poisoned
Close relatives on the way to the

top of his family’s trophy and
loving-cup manufacturing business,
Allied Die Casting in McHenry.

“Every time Chuck needed
money, somebody died,” said Gail
Moreland, one of the McHenry
County prosecutors ‘who handled
the case.

Court documents and interviews
paint a downward spiral of what
appeared to be a family man and

accomplished company president.

It began in July 1980 and ended in
November 1981, when Albanese
was arrested days before a planned

Thanksgiving vacation to the

Caribbean with his wife and

mother.

In the summer of 1980, Albanese
was in serious financial trouble. He
had a swimming pool, two Cadil-
lacs and took’frequent tropical va-
cations, but he was living beyond
his means. - Albanese later testified
that he was not able to live on
$110,000 a year and “do some of the
things I want.”

He. was behind on his mortgage
payment and owed $15,000 on a
bank’ note. Also, he owed six

- months of child support payments

to his first wife, with whom he had
three daughters,

On Aug. 3, Marion Mueller and
Mary Lambert, the mother and
grandmother, respectively, of Al-
banese’s then-wife, Virginia, came
to the Albaneses’ spacious English
Tudor home in Spring Grove for
Sunday dinner. The whole family
ate Polish sausage and sauerkraut,
served from the same platter. In
testimony, Albanese said that, to
his knowledge, neither of the

women guests: had anything to
SEE ALBANESE, PAGE 3

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\ THURSDAY, SEPTEMBER 21, 1995

A4 San Francisco Chronicle xxx xe

NATION

NATIONAL REPORT

Triple Murderer
Executed in Illinois

Joliet, Ill. — Charles Albanese,
convicted of poisoning his father,
his mother-in-law and his wife’s
grandmother so he could take over
the family business, was put to
death by injection early yesterday.

Police said Albanese, 58, had

fallen behind in mortgage, child

support and loan payments and

was after control of the family’s
lucrative trophy manufacturing
business when he fed his relatives
arsenic-laced food in 1980 and
1981. He had maintained his inno-
cence to the end.

|| Illinois executes man
| who poisoned family

1 Crest HILL, ILL. A man was execut-
ed by injection Wednesday for murder-

' ing his father and two other relatives

with arsenic-laced food to get inheri-
tances and take over the family business.
Charles Albanese, 58, had no final words
other than a “thank you” to the prison
nae moments before being put to

Albanese issued a statement late

Tuesday maintaining his innocence.

Albanese was convicted in 1982 of

_ murdering his father, Michael, his moth-
er-in-law, Marion Mueller, and his wife’s
‘ grandmother, Mary Lambert. He also

was convicted of attempted murder in
the arsenic poisoning of his brother.

SAN FRANCISCO EXAMINER.

B-8 Wednesday, September 20, 1995 %& &

Innocence maintained by Albanese before lethal injection

By Sue Ellen Christian and Charles Mount

Tribune Staff Writers

Copyright Chicago Tribune (c) 1995

Convicted triple murderer Charles Albanese was executed early Wednesday at
Stateville Correctional Center near Joliet, becoming the fourth inmate in
Illinois to be put to death this year,

Albanese, 58, of Spring Grove, had no last words for the more than 30 official
and media witnesses before he was given a dose of lethal drugs. He was
pronounced dead at 12:24 a.m., as about two dozen death-penalty opponents held
a vigil outside the prison grounds.

In a statement released earlier by his lawyer, Albanese angrily maintained
that he was innocent of the crimes for which he was convicted, the poisoning
deaths of three relatives.

Prosecutors maintain that greed for power and money motivated Albanese to kill
his victims in Lake and McHenry Counties in 1980 and 1981 and to try to kill a
fourth.

Throughout the day Tuesday, state and federal courts refused to grant Albanese
a last-minute reprieve of his death sentence, and Gov. Jim Edgar refused a
clemency request.

Albanese discouraged his family, including his six children, from visiting him
in prison Tuesday, his lawyer said. Albanese did, however, talk to a priest,
and was communicating with his lawyer by telephone.

Shortly before 8:30 p.m., he took an oral sedative, which Illinois prison
officials routinely offer to condemned inmates in the hours before their
executions.

About 9 p.m., Albanese issued a statement that he had written a week ago,
intending it to be released upon his death, according to his lawyer, Roger
Webber.

"By the time you have read this you will have executed an innocent man,"
Albanese wrote. "Truth, justice and the judicial system is an oxymoron! Not
only have you killed an innocent man, you have destroyed my family, all I have
worked for in life, and allowed someone to get away with murder. In the name
of ‘justice’ the state knowingly and willfully allowed state experts and
witnesses to commit perjury, partaking in the fabricated circumstantial
evidence. The case was choreographed by the same people who are supposed to be
our protectors against crime."

Albanese blamed prosecutors for allowing at his murder trial the critical
testimony of three witnesses, including his brother, Michael, an intended
victim who survived.

Webber said Albanese blamed his brother for the killings of his father, his
mother-in-law and his wife’s grandmother. Albanese was convicted of murder in
their deaths and of attempted murder for trying to kill his brother.

Albanese was the fourth Illinois prisoner to be executed this year and the
sixth since the death penalty was reinstated by the U.S. Supreme Court in
1976. One or two more of the 163 other inmates on Death Row in Illinois also
are likely to be executed by the end of the year, said a spokeswoman for Atty.
Gen. Jim Ryan.

Only Texas leads Illinois in the number of executions performed so far in

9-22-1995 America Online;Galba33 Page 1


1995, with 14. :

In August 1980, prosecutors said, Albanese poisoned Marion Mueller, 69, and
Mary Lambert, 89, the mother and grandmother of his then-wife, Virginia, when
they came to his Spring Grove home for a Sunday dinner.

At the time, their deaths went unexplained. But a year later, when their
bodies were exhumed, officials concluded that they had died from arsenic
poisoning. PRY

Prosecutors maintained that Albanese was motivated to kill by about $60,000 in
bank funds, real estate, life insurance payouts and pension proceeds that he
obtained upon the deaths of the two women. At the time, Albanese was behind on
payments to satisfy bank and mortgage loans. He also owed child support from a
previous marriage. ts

In the fall of 1980, Albanese’s brother Michael, then in his early 30s, began
suffering from what was later determined to be non-lethal doses of arsenic.
Prosecutors later theorized that thé poison had been placed in his lunches at
work.

And in May 1981, Albanese's 69-year-old father, M.d., died of what tests of
his exhumed body showed was arsenic poisoning.

Those two poisonings followed Albanese’s demotion to treasurer from president
in the family company, Allied Die Casting in McHenry.

Albanese wasn’t arrested until November 1981, when McHenry County
investigators linked Albanese with arsenic that he had obtained, ostensibly to
"get rid" of “somé pests around the house, " according to court documents.

In his written statement, which was directed to the “State of Illinois,”
Albanese urged other condemned inmates to fight their death sentences,

"To those still on Death Row who have been convicted because of the injustice
of our justice system, KEEP FIGHTING!

Maybe, just maybe, the people of Illinois will wake up to the injustice. I
pray not too many more people will be executed before the People of Illinois
realize that any one of them could be next."

Transmitted: 95-09-20 02:43:53 EDT (tm00hd10)

9-22-1995 America Online:Galba33 _ Page 2


528

the August 3, 1980, meal at the Albanese
home, and she was hospitalized at St.
Therese’s Hospital in Waukegan on August
16, 1980. Her condition deteriorated and
she died on August 18, 1980. On August
20, 1980, money held in a joint-tenancy
account with Virginia Albanese and Marion
Mueller was transferred to the joint-tenan-

- ey account of Charles Albanese and Virgi-

nia Albanese.

The body of Marion Mueller was ex-
humed_.on August 31, 1981, and the body of
Mary Lambert was exhumed on- August
13, 1981. The official cause of death for

both women was acute gastroenteritis due

to arsenic poisoning. Mary Lambert had
approximately eight times the . normal
amount of arsenic in her body and Marion
Mueller had five times the normal concen-
tration of arsenic. Forensic chemist Joerg
Pirl testified that the two women died of a
massive dose of arsenic.

Virginia Albanese received $6, 000 in life

insurance proceeds and pension fund pro-

ceeds. from Marion Mueller’s death, and
the money was used to make the delin-
quent , payments on the Albaneses’ mort-
gage. . The State Bank of Richmond grant-
ed Charles Albanese two extensions an the
note due August. 14, 1980, because Charles
Albanese told the bank that he had some
real estate that he was trying to sell.
Charles and Virginia Albanese sold the
Leisure Village condominium owned by the
two dead women for $50,000 in October of
1980. Virginia Albanese inherited the con-
dominium by intestate succession. Twenty
thousand dollars from this sale was depos-
ited in the joint account of Charles and
Virginia Albanese, and this amount was
used to satisfy the $15,000 note due at the
Richmond State Bank.

In 1980, Allied Die Casting was owned
by three stockholders: Charles Albanese,
M.J. Albanese (Charles’ father), and Mi-
chael Albanese (Charles’, brother). The
three men made up the board of directors
and each held an executive office. Charles
Albanese was president of the corporation,
Michael Albanese was vice-president, and
M.J. Albanese held the office of secretary-
treasurer. The shareholder agreement,
approved by the board of directors, gave

823 FEDERAL SUPPLEMENT

special powers to M.J. Albanese. He had
absolute power to control and manage the
company, including the power to veto or
negate the decision of any other officer or
employee. This arrangement was consis-
tent with the origins of Allied Die Casting.
M.J. Albanese was the moving force be-
hind the business, and Charles had joined
the family business when a previous job
had not worked out. Charles Albanese did
not have a good relationship with his
brother, Michael Albanese, but conflicting
testimony was offered concerning the rela-
tionship between Charles Albanese and
M.J. Albanese.

A Donald Fishbein, attorney for Allied
Die Casting, testified that he attended a
corporate meeting on September 4, 1980.
Fishbein, Michael Albanese, Charles Alba-
nese, M.J: Albanese, and M.J.’s wife, Clara
Albanese, were in attendance. Fishbein
testified that the purpose of the meeting
was. to. terminate the employment of
Charles Albanese. Charles Albanese dis-
puted this claim when he testified in his
own behalf:at trial. After the meeting, the
board of directors executed an amendment
to the shareholder’s agreement that caused
the demotion of Charles Albanese. M.J.
Albanese was made president, Michael Al-
banese was made secretary and vice presi-
dent, and Charles’ Albanese was made
treasurer. Clara Albanese was to become
a stockholder, having equal ownership with
the three men.

On September 8, 1980, Michael Albanese
ate his lunch at work. He had left his
sandwich in his office prior to lunch. Mi-
chael began vomiting about an hour after
eating lunch, and was hospitalized later
that day. He left the hospital on Septem-
ber 13, 1980. On November 14, 1980, Mi-
chael Albanese experienced another attack
of vomiting and diarrhea about two hours
after eating lunch at work, and again
sought medical attention. He was not hos-
pitalized, but was placed on a bland diet in
order to alleviate the symptoms of an ulcer
that was detected by the treating physi-
cian, Dr. Miller. Michael Albanese’s wife
began preparing lunches for Michael to
take to work in order to conform with the


530

5.

6.

bed. Michael was in a wheelchair, and he
was so crippled he needed his wife’s assis-
tance to sign the agreement. M.J. Alba-
nese. died in the early morning hours of
May 16, 1981. Joerg Pirl, forensic chem-
ist, examined samples of M.J.’s hair and
fingernails, and concluded that death was
caused by arsenic poisoning, with sublethal
doses administered over a four-month peri-
od, and a large lethal dose administered
immediately prior to death.

Defense counsel theorized that M.J.
might have received arsenic poisoning
from an octopus meal consumed shortly
before entering the hospital. The package
of octopus was retrieved, and laboratory
tests revealed the arsenic in the octopus
was within normal, nonlethal levels. Ar-
senic’is a compound that is found. as a
trace element. in many food items and in
every person.

Laboratory tests revealed the presence
{but did not. determine the quantity} ° of
arsenic in the crumbs remaining in M.J.’s
cookie jar. Charles Albanese testified that
he often ate cookies. out of M.J.’s cookie
jar, and that he continued to do so after
M.J.’s. death. Charles was not able to
explain how he had escaped the arsenic
that had killed his father, nor was he able

. to satisfactorily explain why the cookie jar

was left in his father’s credenza. Charles
explained that he continued to walk to his
father’s office every time he wanted a
cookie, instead of moving the jar into his
own office. Charles claimed there was no
room in his office for a cookie jar. [...]

With M.J. dead, and Michael crippled
and at home, Charles Albanese was in sole
control of Allied Die Casting Corporation.
His financial situation was still very seri-
ous and he began selling scrap metal and
zinc, property of the corporation, to J.W.
Reichel and Sons and to Clearing Smelting
Corporation. Charles sold 88,000 pounds
of zine and $9,300 worth of scrap metal in
these transactions. Charles insisted that
the checks be made out to him personally
or to cash, and he would not accept checks

(McHenry R. vol. XXXIII at 93-94).

(McHenry R. vol. XXXIII at 96-97).

823 FEDERAL SUPPLEMENT

made out to Allied Die Casting Corpora-
tion. Charles received nearly $40,000 for
these transactions. In November of 1981,
when police began investigating the myste-
rious deaths in the Albanese family and
visiting Allied Die Casting Corporation,
Charles called Edward Cohen at Clearing
Smelting and told him, “If anybody calls
regarding any of our transactions, you

‘know nothing of it.”

- Police investigators were unable to dis-
cover the presence of arsenic in hair and
fingernail samples of {Charles Albanese,
or} ® employees at Allied Die Casting, or

the presence of the poison at the Leisure

Village complex. Charles Albanese was
arrested in November 1981, shortly before
he was to leave for a holiday in Jamaica
with his wife and mother. Charles has not
contested the theft charges stemming from
the sale of the company scrap metal and

zine. [...]

7.

_At trial, Joe Reichel, vice-president of
J.W. Reichel and Sons in Elkhorn, Wiscon-
sin testified that he talked with Charles
Albanese in the autumn of 1979. Reichel
testified that Charles told him he needed
something to “get rid” of “some pests
around the house.” Reichel’s company
had a small quantity of arsenic which was
used for a plating process. Reichel
brought Charles a small tupperware con-
tainer of arsenic a few weeks after the
conversation. Charles requested more ar-
senic about two weeks later, and Reichel
brought Charles a small baby food jar
containing arsenic. {Charles initially de-
nied to McHenry police that he had ever
possessed arsenic.} 7

Charles Albanese testified that he need-
ed the arsenic because he had recurrent
problems with. pests around the house.
He testified that he put the arsenic out at
night near the garbage container because
pests had been getting in there at night,
and he found garbage strewn all over his
lawn. Charles did not adequately explain
why he would put a lethal poison where

Albanese II (Lake County), 85 Ill.Dec. at 445,
473 N.E.2d at 1250; Lake Record vol. 10 at
1403.


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ALBANESE v. McGINNIS 529
Cite as 823 F.Supp. 521 (N.D.IIl. 1993) -

bland diet recommended by Dr. Miller.
Michael.testified that his periods of illness
usually began after he had eaten or had
coffee at work.

On February 21, 1981, Michael Alba-
nese’s wife heated a can of pea soup and
placed it in a thermos for her husband to

- take to work. Michael Albanese left the

thermos in his office when he left to keep

‘an appointment with Dr. Miller. He re-

turned around lunch time after Dr. Miller
had told him that his ulcer was under
control and that he could discontinue . the
bland diet. Michael began eating his soup
while M.J. Albanese was talking to him.
Charles Albanese urged his father to leave
Michael alone until he had finished eating.

“Michael testified that he only ate about

half of the soup because it “tasted funny.”
He went into the computer room and be-
gan working. After a short time, he began
vomiting and became so ill that he left the
office. He had to stop his car on the side
of the road in order to vomit before he
reached home. He went to bed but was
plagued by vomiting and diarrhea until the
next morning when he called Dr. Miller.
Outpatient tests were performed that day,
and Dr. Miller ordered immediate hospital-
ization.

Although Michael was discharged from
the hospital on March 13, 1981, his condi-
tion was still very serious. In addition to
the gastrointestinal difficulties, Michael be-
gan experiencing numbness in his hands
and feet, and the nerve damage became so
severe he was unable to walk, dress him-
self, or carry on normal business activities.
He was in intense pain and had difficulty
sleeping at night. His wife had rinsed out
the thermos, but police tests revealed the
presence {but did not determine the quan-
tity} 4 of arsenic in the thermos.

Medical tests revealed that Michael Al-
banese was not suffering from an ulcer,
but that he had received sublethal doses of
arsenic over a period of months, and that
this poisoning was the cause of his nerve
damage. Michael’s condition improved
slowly, and he was finally able to return to

. The thermos was tested for the presence of

arsenic by the Northern Illinois State Crime Lab-

_ work and walk with the aid of leg braces.

At the time of {[McHenry] trial, in May
1982, he still had difficulty with his hands,
and the residual numbness was so severe
he was unable to perform many simple

tasks such as buttoning his shirt.

M.J. Albanese kept a cookie jar in his
eredenza at, work, and often ate cookies
while he worked at his desk. In March of
1981, M.J. began vomiting: and experienc
ing severe diarrhea. The symptoms were
so similar to Michael’s that Dr. Miller sus-
pected that ‘M.J. was having psychological
problems caused by the serious illness of
his son. On April 21, 1981, M.J. Albanese
was so ill he was taken to the emergency
room and hospitalized. He -was released

after a-few days, but. his condition did not

improve. M.J. complained of numbness in
his hands and feet, and was referred to a
neurologist for tests which demonstrated
some sensory nerve deficit.

M.J. was hospitalized for the last time
on May 9, 1981. He complained of vomit-
ing, pain, and increasing numbness in his
hands and feet, and his condition gradually
deteriorated. © Charles. Albanese visited
M.J. frequently. Dr. Miller testified that
“(t]he one I remember most being there,
almost hovering every day, was Charles.”
M.J. had skim milk at his bedside in order
to alleviate the dehydration caused by the
severe vomiting and diarrhea.

On May 15, 1981, Charles Albanese
called Mr. Fishbein at home in the early

~ morning hours. He told Fishbein that the

doctors did not expect M.J. to live very
jong, and that he should prepare an
amendment to the Allied Die Casting Cor-
poration agreement aS soon as possible,
and get to the hospital. Dr. Miller testi-
fied that he was mystified by M.J ’s deteri-
oration and certainly did not expect M.J. to

_ die soon. Charles and Michael Albanese

visited M.J. at the hospital that day, and
the three men signed an amendment to the
shareholder agreement. This agreement
promoted Charles to vice-president of Al-
lied Die Casting Corporation. M.J. was in
intense pain and strapped to the hospital

oratory. (McHenry Record vol. XXXIII at 75,
90-92).

ALBANESE v. McGINNIS 527
Cite as 823 F.Supp. 521 (N.D.III. 1993)

ferred to as the “State”) concede that Alba-
nese has exhausted his state remedies and
have moved that the court deny the Petition.

BACKGROUND

Under § 2254(d) factual findings by a state
court “are presumed to be proper in a feder-
al habeas corpus proceeding, if the findings
are made after a hearing on the merits, and
they are fairly supported by the.. record.”
Wilson. v. McCaughtry, 994 F.2d 1228, 1230
(7th Cir.1993). Factual findings made by a
state appellate court are accorded the same
statutory presumption of correctness as find-
ings made by a state trial court. Lewis v.
Huch, 964 F.2d 670, 671 (7th Cir.1992).

1. Trial Evidence.

The following facts are taken from the
Illinois’ Supreme Court’s opinion in Albanese
J (McHenry County). Additional facts from
this court’s review of. the trial transcripts
have been added in: brackets ({ }).

In 1980; Charles Albanese was president

‘of Allied Die Casting Corporation, a family
business that manufactured trophies and

loving cups. Albanese was married and

lived in a large home in Spring Grove with
his third wife and two daughters. Alba-
nese had three other daughters by his first
- wife, and they were living in Wisconsin
_ with their mother. . Albanese. maintained
what can be termed a comfortable life
_ style; he had a swimming pool, two Cad-
illacs leased by Allied Die Casting Corpo-
ration for the family’s use, and he’ took
frequent vacations to tropical destinations.

Albanese testified that he spent everything

that he earned and was not able to live on

$110,000 per year “and do some of the
things I want.” ss,
Charles Albanese began experiencing

serious economic problems in July of 1980.

He was behind in his mortgage payment

and six months’ delinquent in child-support

payments to his first wife. He also owed a

$15,000 note at the State Bank of Rich-

mond, due on August 14, 1980. In July of

1980, his ex-wife’s lawyer filed a petition

requiring him to appear in court on a rule

and the most convenient way to proceed. (Brief
of Petitioner Oct. 27, 1992, at pp. 1-9; State's

to show cause, and a body attachment was
issued when he failed to appear.

On August 3, Marion Mueller, [Alba-
nese’s] mother-in-law, and Mary Lambert,
Mrs. Albanese’s grandmother, came to the
Albanese home for Sunday dinner. Muel-
ler and: Lambert lived together in a condo-

-minium at: Leisure Village, a retirement
‘complex in Fox Lake, and often visited the

Albanese home for Sunday dinner. The
family ate Polish sausage and sauerkraut
family style from the same platter, so it
appears the arsenic was ingested from an-
other source. Charles Albanese testified
that, to his knowledge, the two guests had
nothing to drink. Charles Albanese insist-
ed this was the case even though the 87-
year-old Mary Lambert was working in
the yard on a hot day for several hours
prior to eating dinner.

On August 4, 1980, Charles Albanese
sent his ex-wife’s lawyer a postdated check
for $3,648, the amount of the child-support
arrearages, along with a note that in-
formed the attorney that the check was
dated August 15 because a deposit would
be made to his account around August 13.
Charles also sent him a postdated check
for $500. On August 5, 1980, Mary Lam-
bert was admitted: to the emergency room
at McHenry Hospital with a history of
vomiting and diarrhea for the preceding 36
to 48 hours. On August 6, 1980, Mrs.
Lambert died leaving Marion Mueller and.
Virginia Albanese as her heirs. Charles

Albanese’s wife, Virginia Albanese, closed

out her grandmother’s checking account
and transferred $3,600 to the joint-tenancy
account she shared with her husband.
This amount helped to cover the postdated
check for Charles Albanese’s child-support
payments. -

Charles Albanese was arrested for his
child-support arrearage on August 8, 1980,
while on the way to Mary Lambert’s funer-
al. He was released when it was made
clear that he would pay the delinquent
child support. Marion Mueller experi-
enced vomiting and diarrhea shortly after

Response Nov. 2, 1992, at 1).

Su

> evita aay,

(McHenry R.Vol. XXXII at 72-76).

In the spring of 1985, three years subse-
quent to Albanese’s trials, and four years
after the tests were performed, the Toxicolo-
gy Laboratory and its personnel, including
Drs. Spikes and Pirl, came under severe
criticism for poor evidence handling and test-
ing procedures. The Toxicology Laboratory
was closed by the Department of Law En-
forcement, now called the Department of
State Police, after investigators determined
that the Laboratory -had “routinely failed to
protect the chain of custody in cases submit-
ted to it and had consistently and habitually
produced’ inaccurate analyses of evidence.”
(Department of Law Enforcement “Toxicolo-
gy Final Report,” at ‘1). ~The investigation
was triggered when the Toxicology Laborato-
ry lost crucial evidence in a case: in which law
enforcement: :officials::were trying. to deter-
mine whether: parents:.had . intentionally
poured acid down:their child’s throat. (/d..at
3). Various reports were prepared about the
functioning of the:facility, detailing numerous
failings in health and safety practices, testing
protocols, scientific equipment. condition and
maintenance, and management of: technical
staff.. (Id. at 30-32;.. Report of Dr.. Randall
Baselt, May 24, .1985; Report of Director of
Public. Health Thomas Kirkpatrick, Jr.,
March 26, . 1985).

Albanese argued at the May 19-21, 1986
post conviction evidentiary hearing in the
McHenry County case that these develop-
ments showed that the scientific evidence
used at trial was “inaccurate, unreliable and
untrustworthy.” (Petitioner’s Br. on Post
Conviction Appeal at 29). In addition to the
reports mentioned above, Albanese also pre-
sented a report by Dr. Alphonse Poklis criti-
cizing the methodology used by chemist
Townsend in testing the samples in Alba-
nese’s case. Dr. Poklis, Director of St. Louis
University School of Medicine Division of

9. For the sake of clarity, Charles Albanese will be
referred to as “Albanese” or ‘‘Petitioner’’ for the
remainder of this opinion. Other members of
the Albanese family will be referred to by their
first names.

10. These claims were presented in a Petition and
Supplemental Petition for Writ of Habeas Cor-
pus. Albanese’s claims are set forth in an appen-

ALBANESE v. McGINNIS 533
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

Forensic and Environmental Pathology, con-
cluded from his review of the medical and
toxilogical testimony and records that the

quantitative analysis of specimens by the

Toxicology Laboratory was “meaningless.”

‘None of these reports was accepted as
substantive evidence at the post conviction
hearing because Albanese failed to produce
witnesses or affidavits to vouch for their
truth or accuracy. (Post Conviction R. vol.
II at 283, 291). Instead, the reports were
admitted for the limited purpose of preserv-
ing the record as to what Andrea Lyon,
Albanese’s expert witness on effectiveness of
counsel and the handling of capital cases,
relied upon in reaching her opinion as to the
effectiveness of Albanese’s attorney. (/d. at
282-83). On appeal, the Illinois Supreme
Court’ considered ‘the reports and assumed
their accuracy, but determined that the infor-
mation contained therein did not entitle Alba-
nese to a new trial. . Albanese IIT, 125 Ml.
Dec. at 842-43, 531 N.E.2d at 21-22.

ANALYSIS

Charles Albanese? has raised nineteen
claims of constitutional error stemming from
his convictions for murder and attempted
murder (“conviction claims”), and his sen-
tences (“sentence claims”).!° In reviewing
his convictions and sentences, the court is
mindful that its task is “to ensure that [Alba-
nese was] not imprisoned in violation. of the
Constitution—not to correct errors of fact.”
Herrera v. Collins, —- U.S. ——, — 113
S.Ct. 853, 860, 122 L.Ed.2d 203 (1993); see
Jackson v. Virginia, 443 U.S. 307, 332, n. 5,
99 S.Ct. 2781, 2796, n. 5, 61 L.Ed.2d 560
(1979) (“habeas corpus is not intended as a
substitute for appeal, nor a device for review-
ing the merits of guilt determinations... .
Instead, it is designed to guard against ex-
treme malfunctions in the state criminal jus-

dix to this opinion. _Because Albanese has not
specified which claims attack which conviction
or sentence, the court assumes that each claim is
asserted against both trials, unless it clearly ap-
pears otherwise. The claims and supplemental
claims have been renumbered for ease of refer-
ence.

<@

~ ALBANESE v.: McGINNIS - 531
Cite as 823 F.Supp. 521 (N.D.III. 1993) ;

household pets and neighborhood children

~ could. reach. it, rather than obtaining gar-
_.bage cans with lids instead of. the. uncov-

ered containers he used as_ receptacles.
One of Albanese’s neighbors, Pat Mar-

shall, testified at trial. She stated that
there had been problems with pests in the
»-area, but that. the problems did not begin

until the spring-of 1980. ,Both Pat Mar-

shall and Virginia Albanese testified that

_the Albanese’s garbage was strewn all over

_the lawn in the spring of. 1980. Thus,

Charles Albanese obtained the arsenic at

i least four months before the. garbage and
‘ pest problem described by other witnesses.

Charles testified. at trial that he did not

poison | anyone. . He, accused his brother
ve Michael of, ‘poisoning |] M. J. Charles further
‘testified | that Michael ‘poisoned himself so
“it would appear that Charles was the crim-

“inal. Charles was not able to explain how

Michael’ could have administered ‘the fatal

dose to M.J. on May 15, 1981, when Mi-

ii chael was SO crippled b he could barely hold
“a pen in his ‘hand.

“Charles ‘testified* that Michael was the

i atchitect ‘of the clandestine sale of zinc and
“gerap metal. Charles stated that he paid
Michael cash because his brother was so

‘crippled he could not:sign checks. Charles

“was unable. to explain. how his: brother

8.

signed his paychecks during the period of
his most severe paralysis.

Charles denied being present at Allied
Die Casting on September 8, 1980, shortly
after he was demoted, and the day Michael
had his first attack of vomiting. Charles
was presented with a series of checks and
order forms that he had signed on Septem-
ber 8, 1980, but he explained that he must

have put the wrong date on all of the

documents and signed them on a different
day. {Charles also denied being at work
on January 6, 1981, a day when Michael
became ill with vomiting. Charles testified
that a check and telephone order dated
January 6, 1981 and signed by him must
have been completed on a different day.} *
Charles could: not establish that Michael
had seen Mary Lambert and Marion Muel-
ler shortly before their deaths. He con-

(McHenry R. vol. XXXIII at 172, 176-77).

ceded that Michael had not profited from
the deaths of the two women.- .-When
asked who had profited, Charles said, “I
did, my. wife did.”

While Charles was an inmate at:McHen-
ry County jail awaiting trial, he made the
acquaintance of another inmate, Marty Na-
than. Nathan testified that Charles asked
him “* * * if I knew anybody that would
take care of some people for him * * *
and then he said like about some money
for like $10,000 on a first payment and like
10 or 20 on a second one. And I took it

-and—you know, thinking that he meant to

have them killed.” Nathan testified that
Charles wanted to have his brother Mi-
chael | and Joe Reichel, the man who sup-
plied Charles with arsenic, killed while he
was in jail. Nathan did not receive any
money from Charles, but Nathan agreed to
mail some letters for Charles when he was
discharged from prison.

. At trial, Charles admitted that he wrote
a letter in prison that attempted to impli-
cate Michael 'in the poisoning deaths and
that he had Marty Nathan mail copies of
the letter to his mother, his wife, the plant
supervisor at Allied Die Casting, and his

uncle, Frank Albanese. The letter was
_admitted i into evidence, and stated:

Joe Reichel and Charles’ brother,
Mike, he used me to kill those people
and set up Charles. The containers Joe
gave Charles had powdered sugar with a

| little arsenic, just enough to get. rid of
the animals. .

Michael almost took too much by try-
ing to make himself look like a victim.
The police followed the clues just as we
set them up. Mike set up the phony
theft. Now they tried to double cross
me. That was their first and last mis-
take they ever made.

Albanese I, 79 Ill.Dec. at 610-15, 464 N.E.2d
at 208-13.

The evidence presented in the Lake Coun-
ty trial was substantially similar to that set
out above, except that no evidence regarding
the murder of M.J. Albanese, the attempted
murder of Michael Albanese, or the charges


534 823 FEDERAL SUPPLEMENT

tice systems.”) (Stevens, J. concurring in
judgment) (citation omitted).

Part One: Conviction Claims.

Albanese argues that his convictions can-
not stand for any one of the following rea-
sons: First, he received ineffective assistance
of counsel (Claims 1(a)-1(n)); Second, the
trial court: erred in allowing the jury to be
death qualified under Witherspoon v. [Ilt-
nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968), and in allowing expert testimony
regarding Albanese’s financial condition
(Claims 2, 3); Third, the evidence was insuf-
ficient to support Albanese’s convictions
(Claims 4, 5); and Fourth, the State violated
his rights by withholding evidence that the
Toxicology Laboratory which tested tissue
samples of the victims was grossly inade-
quate contrary to Brady v. Maryland, 373
USS. 88, 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963)
(Claim 6), and by soliciting, or knowingly
permitting; the introduction of perjured or
patently false evidence (Claims 7-12).

I. Ineffective Assistance of Counsel.
A. Applicable Standards.

The Sixth Amendment guarantees criminal
defendants the right to effective counsel.
United States v. Donaldson, 978 F.2d 381,
394 (7th Cir.1992). Claims of ineffective as-
sistance of counsel are governed by the two-
part test set out in Strickland v. Washing-
ton, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). To succeed on such a claim, the

habeas petitioner must show both that the

attorney’s performance was deficient, and
that the deficiency prejudiced the defense.
Id. at 687, 104 S.Ct. at 2064. “Unless a
[petitioner] makes both showings, it cannot
be said that the conviction or death sentence
resulted from a breakdown in the adversary
process that renders the result unreliable.”
Id. As this statement of the test makes
clear, a petitioner bears a considerable bur-
den in establishing. ineffective assistance of
counsel.

[1-3] Under the first prong of the test,
an attorney’s performance must be evaluated
for reasonableness on the facts and circum-
stances of the particular case viewed as of
the time of counsel’s conduct. /d. at 690, 104

S.Ct. at 2066. Review of counsel’s perfor-
mance is to be “highly deferential.... a
court must indulge a strong presumption that
counsel’s conduct falls within the wide range
of reasonable professional assistance; that is,
the [petitioner] must overcome the presump-
tion that, under the circumstances, the chal-
lenged action ‘might be considered sound
trial strategy.’” Id. at 689, 104 S.Ct. at 2065
(quoting Michel v. Louisiana, 350 ‘US. 91,
101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
Hindsight and “Monday morning quarter-
back[ing]” are to be avoided. See United
States v. Donaldson, 978 F.2d at 394.

[4-6] Under the second prong of the test,
the petitioner must “affirmatively prove prej-
udice,” meaning that he or she must show
“that there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confi-
dence in the outcome.” Strickland, 466 U.S.
at 693-94, 104 S.Ct. at 2067-68. The test,
however, is not simply whether the outcome
of the trial would have been different absent
the error:

[A]n analysis focusing solely on mere out-
come determination, without attention to
whether the result of the proceeding was
fundamentally unfair or unreliable, is de-
fective. To set aside a conviction or sen-
tence solely because the outcome would
have been different but for counsel’s error
may grant the defendant a windfall to
which the law does not entitle him.

Lockhart v. Fretwell, — U.S. ——, ——-
—, 113 S.Ct. 888, 842-43, 122 L.Ed.2d 180
(1998) (citation omitted). The inquiry, in-
stead, is whether the attorney’s performance
was adequate to allow the adversarial process
to operate in the particular case: “We reiter-
ate that Strickland requires us to focus, not
upon whether counsel could have done a
better job, but upon whether counsel provid-
ed the assistance necessary to ensure the
fundamental fairness of the proceeding
whose result is being challenged.” Resnover
v. Pearson, 965 F.2d 1453, 1460 (7th Cir.
1992), petition for cert. filed (Feb. 26, 1993).

In Strickland, the Court suggested that, as
a practical matter, considering the prejudice

ee

-&

532 823 FEDERAL SUPPLEMENT

of theft was admitted. Charles Albanese did
not testify in the guilt phase of the Lake
County trial. The main new evidence pre-
sented in the Lake County trial was testimo-
ny by another of Charles’ cellmates, John
Saltz. According to Saltz, Charles hatched a
scheme whereby he would give Saltz a “sui-
cide note,” written as though by Michael
Albanese, Saltz would go to Michael Alba-
nese’s home, force Michael to copy and sign
the note, and then Saltz would murder Mi-
chael and his wife, Gayle, by shooting them.
The note, as copied by Saltz from Charles’
instructions, read as follows:

We can ‘no longer live with what we have
done. We with the help of another killed
the old ladies. I took arsenic myself ‘to
make Chuck look guilty but I over did it
and ‘now T’ll never be the same. The sale
of the zine and scrap was actually my idea
but I had'him do it in a way that I could
make mom [sic] believe Chuck did it alone.
We wanted the company and: power for
ourselves. Chuck is innocent and I’m sor-
ry for what we’ve done. Mom and Chuck,
Please take care of my children...

(Lake R. vol. 10 at 1444) In exchange for
these services, Saltz testified, Charles agreed
to give Saltz $20,000, hire a lawyer for him,
and make him a partner in the business.
(Id. at 1436-37), :

2. Developments Since Trial.

Many of Albanese’s claims for habeas cor-
pus relief focus on the reliability of the scien-
tific evidence recited in Albanese I and set
forth above. Albanese contends that the fo-
rensic tests showing high levels of arsenic in
the bodies of the murder victims were unreli-
able. The tests were performed by a labora-
tory which, ‘subsequent to the trials and di-
rect appeals, was roundly criticized by state

officials for numerous and serious methodo-
logical inadequacies. These criticisms were
issued several years after the toxicology tests
in question were performed and did not spe-
cifically address those results.

Samples of tissue from the three victims
were quantitatively tested for arsenic by the
Illinois Department of Public Health Toxicol-
ogy Laboratory (hereinafter “Toxicology
Laboratory”) between May and September
1981. (McHenry R. vol. XXXIII at 12, 18,
20-21, 24, 26; Lake R. vol. 9 at 1185, 1193).
The Toxicology Laboratory was under the
direction of Chief Toxicologist Dr. John
Spikes and Assistant. Chief Toxicologist Dr.
Joerg Pirl. The testing in Petitioner’s case
was primarily performed by chemist Fred
Townsend. All three men testified at Alba-
nese’s trials. Townsend testified. that he
tested the: tissue Samples using the Gutzeit
method of quantitation and reported his spe-
cific findings. (McHenry R. vol. XXXIII at
4-51; Lake R. vol. 9 at 1180-1209). Dr. Pirl
provided testimony regarding normal levels
of arsenic. in various tissues and compared
those levels to the Gutzeit results obtained
by Townsend and Yeviewed by himself.
(McHenry R. vol. XXXIII at 52-103; Lake
R. vol. 9 at 1211-89). - Dr. Spikes testified
about the effects of arsenic poisoning on the
body and methods of testing tissues for ar-
senic. (McHenry R. vol. XXX at 359-98;
Lake R. vol. 9 at 1150-80).

The results of the testing were dramatic.
The examples listed below are from the testi-
mony regarding Mary Lambert, but they are
representative of the dozens of tests per-
formed on tissue samples of the other victims
in that they show large concentrations of
arsenic in the body.

Tissue Normal Level Level in Lambert Tissue
nails (proximal) 200 micrograms 6,500 micrograms

hair (distal) 200 micrograms 400 micrograms

liver 10 micrograms 440 micrograms

gastric contents

200 micrograms

16,800 micrograms


ALBANESE v. McGINNIS 537
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

tion were reasonable in 1982, three years
before the laboratory was closed.

The post conviction record reveals that
Kelly enlisted Mel Wallace, a professor of
criminal justice at McHenry County College,

_to locate an expert in arsenic poisoning.

Wallace made at least a dozen calls looking
for an arsenic expert. (Post Conviction R.
vol. IX at 85-87). Kelly testified that he
contacted a toxicologist named Gayle Marks,
described the case to her, and was told that
an expert in arsenic poisoning would be of
more help than.a toxicologist. According to
Kelly, it was Dr. Marks who referred him to

Dr. Conibear. (Post Conviction R. vol. IX at-

432). This. version of the facts did not go
undisputed. Dr. Marks filed an affidavit
stating that, to the best of her recollection,
Kelly never contacted her about the Alba-
nese case. The post conviction judge did not
expressly resolve this factual conflict: did
Kelly contact Dr. Marks or not? Given the
judge’s ultimate conclusion that Kelly’s inves-
tigation was reasonable under the circum-
stances, it is implicit that he credited Kelly’s
testimony. Determinations of credibility are
the province of trial judges who observe the
witnesses in question, Marshall v. Lonberger,
459 U.S. 422, 434, 103 S.Ct. 843, 850, 74
L.Ed.2d 646 (1983), and are not to be reeval-
uated by federal courts hearing habeas
cases.!?

According to Kelly’s version of the facts,
he contacted the type of expert (a toxicolo-
gist) Albanese claims would have been prop-
er, and the toxicologist told him to contact an
expert in arsenic poisoning, Dr. Conibear.
After reviewing medical records, autopsy re-
ports, and arsenic test results, Dr. Conibear
told Kelly that Lambert and Mueller had
died of arsenic poisoning. (Post Conviction
R. vol. VIII at 398, 401). She noted that the
symptoms of the surviving victims were defi-
nitely caused by arsenic.!* In addition, she

12. The court, of course, does not defer to the
post conviction judge’s conclusion that Kelly's
investigation was reasonable, reasonableness be-
ing a mixed question of law and fact. Strickland,
466 U.S. at 698, 104 S.Ct. at 2070; see Wright v.
West, —— U.S. , ~ , 112 S.Ct. 2482,
2488-89, 120 L.Ed.2d 225 (1992).

13. Dr. Conibear apparently was confused regard-
ing M.J.’s presence among the living.

told Kelly that the date of arsenic ingestion
by Mueller and Lambert was August 3, 1980,
the day of the last Albanese family dinner.
(Id. at 401-02). Under these circumstances,
it would have been reasonable for Kelly to
conclude that a battle of the experts on the
medical evidence was not in his client’s best
interests.

Although Albanese asserts that Dr. Coni-
bear was the wrong expert witness, he has
never presented the right expert witness, or
shown that the right witness would have
testified favorably to the defense. Albanese
offered into evidence at the post conviction
hearing two reports authored by Dr. Baselt
and Dr. Poklis, respectively. _The Baselt re-
port, written in 1985, ‘criticized the proce-
dures followed by the Illinois Department of
Public. Health Toxicology. The Poklis re-
port, written in April 1986, directly attacked
the toxicology reports used at Albanese’s tri-
al. As was noted supra at 15, Albanese did
not offer any authentication for the reports.
The post conviction judge admitted these
reports for the limited purpose of preserving
the record on the issue of ineffective assis-
tance of counsel. (Post Conviction R. vol. II
at 282-83). Albanese had offered the testi-
mony of Ms. Andrea Lyon, an attorney spe-
cializing in capital crime litigation, who
opined that Kelly was ineffective due to his
failure to discover the types of irregularities
at. the Toxicology Laboratory reported by
Drs. Baselt and Poklis. Obviously, Albanese
knew of Dr. Poklis and Dr. Baselt in May of
1986 (the date of the post conviction hearing).
Yet he did not present their testimony by
deposition, affidavit, or otherwise. The rec-
ord does not reveal that Albanese even at-
tempted to offer the type of authenticating
evidence necessary to admit the Baselt and
Poklis reports as substantive evidence.“ Al-
banese has not, therefore, established that
had Kelly contacted the “right” expert, that

14. Albanese had notice that such supporting evi-
dence was required, at the latest, when the judge
ruled that the reports were inadmissible as sub-
stantive evidence. Conceivably, Albanese could
have requested a suspension of the post convic-
tion hearing to obtain the required authentica-
tion.

538 823 FEDERAL SUPPLEMENT

expert would have testified at trial that the
quantitative tests for arsenic were unreliable.
Having failed to demonstrate that Kelly’s
representation was deficient with regard to
consulting and hiring an expert, Albanese
cannot obtain relief from his convictions
based on Claim 1(b).

Claim 1(c) is similar to 1(b): Kelly’s repre-
sentation was. ineffective because he “[flailed
to adequately educate himself in the field of
toxicology, specifically with respect to arsenic
poisoning and the methodology employed in
investigating the. same.” Albanese’s argu-
ment is based on speculation and hindsight.
Under the scenario. envisioned by Albanese,
Kelly would have learned. enough about ar-
senic testing methodology to. establish that
the Toxicology Laboratory tests were unreli-
able; in other words, he. would have come to
the same conclusion:.as ‘Dr. Poklis.. As dis-
cussed above, Albanese has failed to present
substantive evidence that the test-results ac-
tually-were unreliable, despite the fact that,
with the passage of time from 1981 to. 1986,
the Toxicology Laboratory had been closed,
providing Albanese. with many more clues to
possible testing irregularities than Kelly had
had in 1982..

A review of. the ‘trial: transcripts reveals
that Kelly had familiarized himself with ar-
senic testing technologies. He consistently
elicited testimony on cross-examination from
the prosecution’s ‘experts that the Gutzeit
method of quantitating arsenic in tissues was
well over one hundred: years old, and that
more modern methods were available. He
questioned the State’s experts about the his-
tory, sensitivity, and accuracy of these other
methods, which included atomic absorption
spectrometry, neuron activation analysis, and
x-ray fluorescence. (See McHenry R. vol.
XXXII at 84-89).

In closing argument in the McHenry trial,
Kelly noted that the equipment necessary to
perform the more modern and accurate
atomic absorption test was available in the
Department of Public Health’s Springfield
laboratory. (McHenry R. vol. XXXVI at
117-18). Kelly also took full advantage of
the weak testimony of Fred Townsend, the
chemist who performed the tests in question.
Townsend, as Kelly pointed out in closing

argument, had not been able to remember
the name of the college he attended on the
stand. Kelly questioned the ability of this
71-year-old. chemist to perform the various
complicated steps involved in the Gutzeit test
and to interpret the results:

Fred Townsend is a nice old elderly gen-
tleman, and I have nothing’ against him
because of his age. But he should ‘have
been retired from the Department of Toxi-
cology years ago. And very simply why?
Because he got up there on the stand, and
he couldn’t even remember the name of
the college that he went to. -But yet he
took this test... .'and he couldn't remem-
ber any of the dates that he performed
| ee

Now, how many steps were there to this
(Gutzeit] test that this man had to per-
form? ... first of all, [Townsend] said

_ that the sample ... has to be prepared in
a kjeldahl solution, liquified and colorless.
The second step is Placing this solution
into the Gutzeit apparatus... Then it is

diluted to a standard variance with dis-
tilled water. Then hydrochloric acid is
added; two milliliters—and [Townsend]
was very specific about that—of potassium
iodide is added. When the vapor is in the

“upper column, zine is added. This test
must be done at zero degrees Fahrenheit
temperature.

Now, here’s a man who couldn’t remem-
ber the name of his college; and he’s per-
forming this test. And this is only about
half way through the test...

(McHenry R. vol. XXXVI at 115-17).

At the post conviction hearing, Kelly testi-
fied that Dr. Conibear gave him several text
books on toxicology, and that he read them in
preparation for trial. He kept these books
with him at counsel table and occasionally
used them in conducting cross-examination.
(Post Conviction R. vol. IX at 435-36). Per-
haps Kelly could have mounted a better de-
fense, but that is not the inquiry. To obtain
habeas relief, Petitioner is required to over-
come the presumption that Kelly’s prepara-
tion was adequate and his performance suffi-
cient to ensure the fundamental fairness of
the trial proceedings. See Resnover v. Pear-


ALBANESE v. McGINNIS 535
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

prong of the test first would often resolve the
ineffectiveness challenge without the need to
judge the attorney’s performance. In the
current case, many of Albanese’s claims can
be resolved by reference to the performance
prong of the test. The court will address
each of Albanese’s claims of ineffectiveness in
turn.

B. Performance of Albanese’s Attorney.

Albanese was represented by Richard C.
Kelly in both the McHenry trial and the
Lake trial. The judge presiding over the
post conviction evidentiary hearing deter-
mined that Kelly was “an experienced crimi-
nal law trial attorney.” (Post Conviction R.
vol. II at 291). The record bears this out.
Kelly testified that he had been licensed ‘to
practice in Illinois since 1967. He had expe-
rience as an- Assistant State’s Attorney in
Cook and McHenry Counties, an Associate
Judge in McHenry County, and as a private
practitioner. Sixty to 70% of Kelly’s practice
consisted of criminal matters. At the time of
the hearing, Kelly had tried approximately
148 jury trials, including 140 criminal mat-
ters. Seventy of these involved felonies, 20
involved Class X felonies. Further, Kelly
testified that he had tried eleven homicide
cases.. The Albanese case was the first capi-
tal case Kelly had ever tried. (Post Convic-
tion R. vol. IX at 421-28, 462-63).

Albanese’s ineffectiveness claims challenge
Kelly’s case preparation, generally and with
regard to both the scientific and financial
evidence. In addition, Albanese urges the
court to find Kelly’s strategic decisions con-
stitutionally deficient.

1. General Preparation.

Claim l(a) asserts that Kelly “[flailed to
consult with any attorneys experiencing [sic]
capital litigation.” Kelly disputed this at the
post conviction hearing, claiming that he con-
tacted the Cook County Public Defenders
Office to obtain information about capital
cases. (Post Conviction R. vol. IX at 476,
480-81). Kelly also testified that he re-
viewed all of the then reported Illinois death
penalty cases prior to trial. (/d. at 463).

[7,8] Albanese contends that “qualitative
differences from capital litigation to other

criminal trials and Kelly’s lack of experience
therein, made it incumbent upon him to do
substantially more preparation than would be
necessary in a normal criminal case at which
he was experienced. In these circumstances,
effective assistance of counsel must include
talking to some experienced attorney at
length as to the differences in capital litiga-
tion from other criminal litigation.” (Peti-
tioner’s Resp. to Mot. to Deny Pet. at 7).
Albanese cites no authority for his conclusion
that only “lengthy” discussion with “some
experienced attorney” is a prerequisite to
effective representation, and this court has
found none. In fact, Strickland teaches that
effectiveness of counsel in the type of adver-
sarial capital sentencing proceeding applica-
ble in Illinois is governed by the same stan-
dard as for the guilt phase of trial. 466 U.S.
at 686-87, 104 S.Ct. at 2064 (“For purposes
of describing counsel’s duties, therefore,
Florida’s [adversarial] capital sentencing pro-
ceeding need not be distinguished from an
ordinary trial.”). The Strickland court spe-
cifically declined to.impose on counsel “de-
tailed rules” or “guidelines” for effective as-
sistance. Jd. at 688-89, 104 S.Ct. at 2065.
Consulting an attorney experienced in the
particular matter would certainly be prudent,
but is by no means constitutionally mandat-
ed.

At the post conviction hearing, Kelly allud-
ed to another factor bearing on the reason-
ableness of his research into capital litigation.
Kelly filed his appearance on February 22,
1982. (McHenry R. vol. I at C-64). The
Illinois death penalty statute, enacted in
1977, Ill.Rev.Stat. ch. 38, § 9-1, was upheld
against constitutional attack on November
21, 1979. People ex rel. Carey v. Cousins, 77
Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809
(1979), cert. denied sub nom., Brown v. IIli-
nois, 445 U.S. 953, 100 S.Ct. 1603, 63
L.Ed.2d 788 (1980). Between the date Carey
was decided and the date Kelly came into the
case, only nine appellate opinions discussing
the death penalty in any detail were issued.
As Kelly testified, there was no surplus of
experts on capital litigation in Illinois with
whom to consult, at length or otherwise.
(Post Conviction R. vol. IX at 463).

536 823 FEDERAL SUPPLEMENT

[9] Claims 1(m) and (n) address the ade-
quacy of Kelly’s preparation and his decision
mot to seek continuances. Kelly failed ,“to
request a continuance when he was advised
of the State’s intent to seek the death penal-
ty,” (Claim 1(m)) and failed “to seek a contin-
uance, even though he became involved ap-
proximately, only one month prior to com-
mencement of trial in a capital case, and he
had no previous capital experience.” (Claim
1(n)). The State.contends that these claims
have been procedurally defaulted for failure
to raise them in the state courts. The court
rejects this contention as an overly narrow
view of fair presentment.

While: it. is true that Albanese did not
present these claims in precisely the same
language as they appear here, the Illinois
courts hada full opportunity to consider
Albanese’s assertion that Kelly was inade-
quately prepared for trial. In Albanese III,

the Illinois Supreme Court specifically ad-

dressed claims that Kelly’s representation
was deficient because he was “ill-prepared
for trial” and that he “prepared for trial in
less than one month.” 125 Ill.Dec. at 840;
581’ N.E.2d at 19. In his brief before the

court in Albanese IIJ, Albanese argued that’

“trial counsel was ill prepared ... and went
to trial without a request for additional time
within weeks of retainer.” (Petitioner’s Post
Convention Br. at 4). This, combined with
Albanese’s other claims in the state courts
about Kelly’s lack of experience with capital
litigation, sufficed to preserve the matter for
federal habeas review. The claims, however,
fail on the merits.

[10] Under Strickland, to succeed on
Claims 1(m) and (n), Albanese must over-
come the presumption that under the circum-
stances as they existed in 1982, Kelly’s fail-
ure to seek continuances “ ‘might be consid-
ered sound trial strategy.’” Strickland, 466
U.S. at 689, 104 S.Ct. at 2065. At the post
conviction hearing, Kelly explained that he

11. These two claims alleging inadequate time to
prepare for trial and sentencing apply only to the
McHenry trial. Kelly filed his appearance in
Lake County on February 18, 1982 and trial
commenced nine months later in October 1982.
Albanese has not argued that this amount of time
was inadequate for Kelly to prepare an effective
defense. After his client was convicted and sen-

had not sought a continuance before trial for
two reasons. First,. Albanese had already
been incarcerated for more than ninety days.
Second, Kelly testified that he believed going
to trial sooner was to Albanese’s advantage

because the prosecution’s case was entirely

circumstantial. (Post Conviction R. vol: IX
at 471). This strategic decision is not objec-
tively unreasonable; Kelly could have ration-
ally believed that forcing the State to go to
trial earlier rather than later would result in

some “holes” in the State’s circumstantial.
case remaining unfilled. -Albanese has not.

offered any persuasive argument to over-
come the presumption that Kelly’s actions
were reasonable; therefore, Claims 1(m) and

(n) provide Petitioner with no basis for re-

lief."

2. Preparation for Scientific Evidence. -

[11] Claim 1(b) asserts that Kelly

“(flailed.to obtain and consult with an expert.

in chemistry or toxicology, who could have
refuted or discredited the expert testimony
of the State’s expert witnesses.” The record
from the post conviction hearing is clear that
Kelly did consult an expert on arsenic poison-
ing, Dr. Shirley Conibear, before trial. Alba-
nese asserts, however, that Dr. Conibear was
not the right kind of expert; according to
Albanese, Kelly should have retained a chem-
ist or toxicologist who was familiar with
methods employed to quantitate arsenic in
substances. (Petitioner’s Resp. to Mot. to
Deny Pet. at 8). This claim invites the kind
of hindsight analysis of counsel’s_perfor-
mance prohibited by Strickland. The ques-
tion is not what would be reasonable prepa-
ration and investigation now, when it is a
matter of public record that the Toxicology
Laboratory which performed the quantitative
arsenic tests was closed by the state for
serious inadequacies. Rather, the question is
whether Kelly’s investigation and prepara-

tenced to death in the McHenry trial, Kelly filed
a motion to withdraw as counsel before trial in
Lake County. Albanese told Lake County Circuit
Judge Lawrence Inglis that he was satisfied with
Kelly's performance and wished the representa-
tion to continue. (Post Conviction R. vol. IX at
428).


a napeananer tame eprect

ALBANESE v. McGINNIS 539
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

son, 965 F.2d at 1460. Petitioner has not
done so;. relief based on Claim 1(c) is denied.

[12] ‘Claim 1(h) concerns arsenic testing
performed on various tissue samples and oth-
er objects by the Northern Illinois State
Crime Laboratory (“Crime Laboratory”), not
to be confused with the Department of Public
Health Toxicology. Specifically, Albanese
contends that Kelly’s representation was in-
effective because he “[fJailed to rebut evi-
dence of the testing done by the Northern
Illinois State Crime lab which indicated the
presence of arsenic [in] several items rele-
vant to petitioner’s case, although he was
aware that the qualitative nature of that
testing, as opposed to quantitative testing,
was invalid for the purposes: for which br
testing was done.” (Emphasis added).’
banese has not challenged the rateie
validity of the qualitative tests. Rather, Al-
banese asserts that the very nature of the
tests made them invalid for “criminal investi-
gatory purposes.” (Petition at 133).

This claim has its origin in Dr. Conibear’s
testimony at the post conviction hearing that
the qualitative tests on non-tissue samples
were “worthless,” and that she so informed
Kelly prior to trial.

I told [Kelly] that some of what I would
call the environmental measurements of
arsenic in things other than people’s bodies
I felt were not valid. They were what I
would call qualitative. That is they said
yes, there was arsenic there. They didn’t
say how much. They didn’t quantitate the
arsenic. And, I told him that arsenic was
present in many things and that this did
not demonstrate that these items had not
been the source of the poisoning. . The
fact that the tests themselves [on the non-
tissue] were not quantitative meant that
they really were worthless.

(Post Conviction R. vol. VIII at 403-04) (em-
phasis added).

The Crime Laboratory tested samples of
hair and fingernails from various individuals
and certain other non-tissue objects for the
presence of arsenic using the x-ray fluores-

15. Hair samples were taken from twenty-seven
employees and nail samples were taken from 21.
(McHenry R. vol. XXXIII at 87, 89).

cence method. Chief Chemist Andrew Prin-
cipe testified in both trials that the Crime >
Laboratory tested samples qualitatively only;
any arsenic found to be present was not
quantitated. Specifically, Principe testified
at the McHenry trial that arsenic was pres-
ent in the nails and hair of Mary Lambert;
arsenic was present in the hair of Marion
Mueller; arsenic was present in Michael’s
hair and nails. No arsenic was found to be
present in the hair or nails of Charles Alba-
nese; no arsenic was detected in the hair or
nails of employees of Allied Die Casting Cor-
poration.!® Arsenic was not detected in soil
samples taken from around-Marion Mueller’s
grave, ‘although other elements were detect-
ed. Objects tested for the presence of arsen-
ic included a jar, a thermos bottle, and cookie
crumbs. The contents of a jar was tested,

revealing the presence of arsenic and no

other elements.’ A scraping from Michael’s
thermos showed the presence of arsenic,
while a sample of the thermos bottle itself
did not. Crumbs from a cookie jar tested
positive for the presence of arsenic.
(McHenry R. vol. XXXIII at 75-97, 109).

There were fewer Crime Laboratory test
results presented at the Lake County trial
because the murder of M.J. and attempted
murder of Michael were not at issue. Prin-
cipe testified that the Crime Laboratory had
performed qualitative, not quantitative, tests
for the presence of arsenic in hair, nail, soil,
and embalming fluid samples. The results
were as follows: arsenic was present in Mar-
ion Mueller’s nails and in Mary Lambert's
hair; arsenic was not detected in samples of
soil from either woman’s grave, nor in sam-
ples of embalming fluid; arsenic was not
present in samples of hair and nails from
Charles Albanese. (Lake R. vol. 9 at 1275-
80).

Although Claim 1(h) has not been clearly
argued, the court infers from the record and
briefs filed on post conviction review and in
support of the Petition, that Albanese is
claiming that the tests on the jar, the cookie

16. This was apparently the jar of arsenic that
Reichel gave to Albanese at his request.


340

crumbs, and thermos bottle were worthless. !7
More importantly, Albanese argues that Kel-
ly knew those tests were worthless because
Dr. Conibear so informed him. The reason
the tests were worthless, according to Dr.
Conibear, was that a mere determination
that the crumbs and thermos. contained -ar-
senic could not establish that lethal doses of
arsenic were delivered from, those sources.
(Post Conviction R. vol. VIII at 403). After
all, as was pointed out during both trials,
arsenic is an elemental substance, present in
many objects, including humans, naturally.!8

Kelly disputed Dr. Conibear’s ‘testimony.
He testified at the post: conviction hearing
that Dr. Conibear never told him the qualita-
tive tests were worthless. . (Post Conviction
R. vol. IX at 453). _The judge did not resolve
this conflict. It is not the province of this
court to weigh the credibility of these wit-
nesses, and in this case it is also unneces-
sary. If the court were to presume that Dr.
Conibear’s testimony. was correct, and that
Kelly had notice that ‘the qualitative tests
were incompetent to show that the cookies
and thermos were the vessels for poisoning,
then Kelly’s performance in this particular
could conceivably constitute deficient assis-
tance under Strickland. If the tests on the
cookies and thermos bottle were worthless,
then the State’s theory in the McHenry case
was faulty in positing the methods by which
Albanese introduced arsenic to his father
M.J. (through cookies) and his brother Mi-
chael (thermos of soup). The State empha-
sized this evidence in urging that Albanese
had opportunity’ to commit the crimes
charged. (McHenry R. vol. XXXVI at 72-
75). The story presented by the State about
poisoned pea-soup and cookies must have had
some prime-time drama appeal to the jury,

17. It does not appear that Albanese is arguing
that the qualitative tests on the hair and nail
samples were without probative value. Indeed,
the fact that some hair and nail tests showed the
presence of arsenic while others did not, reveals
that even the qualitative x-ray fluorescence test
has a quantitative aspect: if every person’s body
contains arsenic naturally, Charles Albanese and
twenty-seven Allied Die Casting employees would
not have tested negative for the presence of ar-
senic. Principe testified that the tests on sam-
ples of Albanese’s hair and nails “did not reveal
the presence of any arsenic,” (Lake Volume 9 at
1276) (emphasis added). Obviously, there is

823 FEDERAL SUPPLEMENT

which Kelly might have been able to contra-
dict, given what he knew at the time of the
McHenry trial, not at some future time.

The court does not and need not decide
whether Kelly’s performance was deficient in
this regard, however, because Albanese has
not shown prejudice, the second hurdle to be
cleared under the Strickland test. In order
to establish prejudice, Albanese must show
that the result of the McHenry trial probably
would have been different, but- for Kelly’s
failure to challenge the cookie and thermos
tests, such that confidence in the outcome of
the trial is undermined. See Strickland, 466
U.S. at 693, 104 S.Ct. at 2067. Albanese has
not done so. The State presented other
evidence to show that Albanese had access to
all of the murder victims. The cookie jar
and thermos bottle tests purported to pin-
point how arsenic was introduced to M.J. and
Michael, but other evidence showed that Al-
banese worked with M.J. and Michael on a
daily basis at the offices of Allied Die Cast-
ing. That evidence of opportunity would
have remained, even if Kelly had argued that
the cookie and thermos tests were inconclu-
sive. Albanese has shown neither a probabil-
ity that he would have been acquitted had
Kelly done as Albanese now suggests, nor
that the alleged error rendered his trial
unreliable.

3. Preparation for Financial Evidence.

{13] In Claims 1(d) and 1(e),. Albanese
contends that Kelly’s representation was in-
effective because he “[flailed to obtain an
expert witness in the field of accounting in
time to adequately. examine the State’s case
with respect to Petitioner’s financial status”
and “[flailed to adequately provide the ac-
countant that was employed with sufficient

Some sensitivity limitation to the test; when ar-
senic is present below a certain level, the x-ray
fluorescence test yields a negative result.

18. John Spikes, Chief Toxicologist at the Public
Health Laboratory, testified that arsenic is a nat-
urally occurring substance, present in every hu-
man body. He testified that the normal level of
arsenic in one individual may be higher than that
found in another individual, differences being
caused by occupational exposures and other fac-
tors. (Lake R. vol. 9 at 1164: McHenry R. vol.
XXX at 363, 369, 372, 383).


542

I(d) and 1(e) provide no basis for habeas
corpus relief.

4. Trial Strategies.

{14] In Claim 1(f), Albanese contends
that Kelly’s representation was ineffective
because he “[flailed to interview the State’s
expert witnesses in advance of trial.” The
State called Kelly as a witness at the post
conviction hearing. Kelly testified then that
he did not interview the State’s expert wit-
nesses in advance of trial as a matter of trial
Strategy. Kelly stated that it was his normal
policy not to interview such witnesses, in
order to avoid alerting them to areas of likely
cross examination. (Post Conviction R. vol,
IX at 466). Kelly testified to other aspects
of his usual trial strategies, Stating that he
normally interviewed fact witnesses before
trial without taking notes, in order to avoid
having to disclose such notes to the prosecu-

tion. (/d. at 448, 453).

Under Strickland, Albanese must’ over-
come the presumption that under all the
circumstances, Kelly’s decision not: to inter-
view the State’s expert witnesses in advance
“‘might be considered sound trial Strategy.’”
Strickland, 466 US. at 689, 104.S.Ct. at 2065.
Albanese has not overcome that presumption
because his challenge to Kelly’s Strategy is
based on exactly the type of hindsight that
Strickland warns against. Albanese’s argu-
ment combines what Kelly “should” have
done, what he “might” have understood from
the recommended investigation, and what the
resulting evidence “could” then have shown:
If Kelly had taken the time to interview

the State’s witnesses prior to the trial, he
may have. understood the procedures
which they employed to conduct their test.
He then would have been able to have a
meaningful discussion with expert witness-
es in the field of toxicology as to the
reliability of the methods employed by the
State’s witnesses. He then should have
realized that Dr. Conibear was not the
type of expert that he needed for prepar-
ing this case. He then, naturally, would
have pursued other experts such as Dr.
Alphonse Poklis, who was obtained by [Al-
banese’s post conviction counsel] subse-
quent to the convictions in this case. Such
an expert would have been capable of di-

823 FEDERAL SUPPLEMENT

Secting [sic] the procedures employed by
the State’s expert witness and determining
the flaws therein. Kelly then could have
been successful at either discrediting or
Suppressing the evidence that purported to
establish the proof that the murder victims
in this case had been exposed to lethal
doses of arsenic. Without these laboratory
results, Dr. Helen Young [the State’s ex-
pert] could not have formed an opinion as
to the cause of death. The cause of death
then would not have been proven beyond a
“reasonable doubt to be homicide.

(Petitioner’s Resp. to Mot. to Deny Pet. at

11). This string of possible events is too

tenuous; Albanese is hypothesizing an alter-
native Outcome of the trial based on what a
certain course of conduct might have re-
vealed. Albanese has not shown that Kelly’s
approach was unreasonable given the circum-
stances as they existed in 1982. Albanese’s

argument here repeats those addressed su-

pra at 25-26 as to Claim 1(b), regarding
Kelly’s failure to obtain the “right” expert
witness. As noted there, Albanese has not
presented substantive evidence that the
“right” witness existed, despite having had a
full opportunity to do so at the post convic-
tion hearing. The court finds that Albanese
has not. shown that Kelly’s choice not to
interview expert witnesses before trial was
“outside the wide range of professionally
competent assistance.” Strickland, 466 U.S.
at 690, 104 S.Ct. at 2066. .

[15] In Claims I(g) and 1(i), Albanese
contends that Kelly rendered ineffective as-
sistance due to his failure “to investigate
leads provided to him by Dr. Conibear in
investigating the problems with the Depart-
ment of Public Health Toxicology Laborato-
ry, although such information came to his
attention” and his “failure to consult with any
expert as to the reliability of the testing
procedures employed by the State’s expert
witnesses.” The background to these claims
has been set forth Supra at 12-15. These
claims address the revelation, subsequent to
Albanese’s trials and direct appeals, that the
Toxicology Laboratory was closed by the
State of Illinois in 1985 due to inadequacies
in its testing procedures. It was this labora-
tory which performed the quantitative tests


ALBANESE v. McGINNIS

541

Cite as 823 F.Supp. 521 (N.D.III. 1993) ‘

documentation to thoroughly analyze Peti-
tioner’s financial status and give an unquali-
fied opinion of same.”

The State posited that Albanese’s motive
for the murders was to improve his precari-
ous financial position. Kelly countered with
evidence at the McHenry trial, in the form of
expert testimony, that Albanese’s financial

condition was not “critical,” as urged by the

State. Albanese now challenges Kelly’s
preparation of the expert witness, James
Woods.!® Albanese argues that errors in the
State’s financial case, overstating items of
expense and failing to show items of income,
were crucial because his supposed motive for
murder becomes weaker with every dollar
added to the asset column. That argument
is beside the point. The question is whether
Kelly’s representation fails constitutional
muster due to his handling of the financial
aspect of the State’ s case. On this issue,
Albanese cannot overcome Strickland ’s prej-
udice hurdle, because he has not shown that
Kelly could have found a credible accounting
expert to testify that Albanese was in good
financial condition. .

At the post conviction ieartien’ in McHenry
County, Albanese presented Terry Hall, a
-CPA practicing mainly as a professional wit-
ness. In preparation for her testimony, Ms.
Hall reviewed Albanese’s financial records
and talked with Albanese himself, whom she
found to be well acquainted with his business
affairs. (Post Conviction R. vol. VIII at 275).
Ms. Hall testified that Albanese’s financial
condition in 1980 was “terrific.” (Jd. at 274).
Hall testified that the financial evidence pre-
sented by the State at the McHenry trial did
not include all of Albanese’s income and as-
sets. (/d. at 268). On cross examination,
Hall admitted that in reaching her opinion
she had not considered Albanese’s delinquent
mortgage and child support obligations, or
the precariousness of his job. (Jd. at 290-
94). In his written opinion, the post convic-
tion judge found that Hall’s credentials and
credibility were “substantially undermined
by cross examination so as to render her
testimony unpersuasive.” (Post Conviction
R. vol. II at 285).

19. Kelly did not offer expert testimony on Alba-

In order to show prejudice, Albanese
would have to show that the result of the
trials would have been different but for Kel-
ly’s failure to obtain and prepare an account-
ing expert to challenge the State’s case and
to give an unqualified opinion of Albanese’s
financial condition. See Strickland, 466 U.S.
at 694, 104 S.Ct. at 2068. The outcome
might arguably have been different if the
defense had totally undercut the State’s theo-

ry of motive by showing that Albanese did

not have financial problems before the mur-
ders. Given Albanese’s inability to find a
credible expert to testify at the post convic-
tion hearing in 1986 that his finances were
good, Albanese cannot realistically claim that
he was prejudiced by Kelly’s failure to do so
in 1982, while operating under pre-trial time
pressures. Instead, the most Albanese has
shown is some possible inaccuracies in the
State’s financial evidence.

The Illinois Supreme Court determined
twice that even if the alleged inaccuracies in
the State’s evidence were accepted as true,
they would not have undermined the State’s
proof of motive. The suggested inaccuracies
are minor; on appeal from his: Lake County
conviction, Albanese

urg[ed] the court to adopt calculations he
offer[ed] here for the first time, which
produce an increase in his cash assets and
a decrease in expenses. However, as [Al-
~ banese] acknowledges, the revised financial
data do not alter the result that he over-
spent his income in 1980. Moreover, his
revisions do not detract in any way from
the State’s evidence summarizing defen-
dant’s obligations and arrears in the criti-
cal months of July and August of 1980.

Albanese II, 85 Ill.Dee. at 444, 473 N.E.2d at
1249. On post conviction review, where Al-
banese again challenged the accuracy of the
State’s financial evidence, the Illinois Su-
preme Court noted: “there is no dispute that
as a result of the deaths [Albanese] experi-
enced financial gains that eased a financially
tight situation, and moving numbers from
one side of the ledger to another could not
have altered that fact.” Albanese III, 125
Ill.Dee. at 841, 5381 N.E.2d at 20. Claims

nese’s finances in the Lake County trial.


ALBANESE v. McGINNIS 5A5
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

[16] . Albanese has never “fairly present-
ed” the question of whether Kelly’s failure to
object to Fishbein’s testimony constituted in-
effective assistance of counsel. See Verdin v.
O'Leary, 972 F.2d 1467, 1472-74 (7th Cir.
1992). Instead, Fishbein’s testimony was at-
tacked solely on the grounds that its admis-
sion was erroneous under the law of evi-
dence: “The testimony in issue was nothing
more or less than an improperly offered and
admitted opinion as to the meaning of anoth-
er’s inadmissible hearsay statement.” (Peti-
tioner’s Br. in McHenry Appeal at 69). Al-
banese’s argument to the state courts about
Fishbein’s testimony did not raise any. feder-
al issue under the test set forth in Verdin
because it did not. $3 ee

“(1) rely on pertinent federal cases em-
ploying constitutional. analysis; (2) rely on
state cases applying constitutional analysis
. to a similar factual situation; (3).assert the

claim in terms so.particular.as to call, to

mind a specific constitutional right; or (4)

allege a pattern of facts that is well within

the mainstream’ of ‘constitutional litiga-
gi idons. 3027 ; =
Id. at 1473-74. Because Albanese did not
challenge Kelly’s failure to object to Fish-
bein’s testimony in constitutional terms in
the state courts, this claim is procedurally
defaulted. Jd. at 1472 (citing, Henderson v.
Thieret, 859 F.2d 492, 496 (7th Cir.1988),
cert. denied, 490 U.S. 1009, 109 S.Ct. 1648,
104 L.Ed.2d 163 (1989)). The fact that Alba-
nese presented the issue of ineffective assis-
tance of counsel generally to the state courts
is insufficient; it is Albanese’s obligation to
identify the specific acts and omissions of
counsel that form the basis of an ineffective-
ness claim, Velarde v. United States, 972
F.2d 826, 829 (7th Cir.1992) (citing Strick-
land, 466 U.S. at 690, 104 S.Ct. at 2065).

The finding that Albanese has procedurally
defaulted on Claim 1(j) does not necessarily
end the inquiry. The default might have
been excused if Albanese could have demon-

defendant's trial attorney was ill-prepared for
trial; that he prepared for trial in less than one
month: that he did not speak to enough or the
right expert witnesses; that he did not proper-
ly cross examine the State’s witnesses; that he
failed to reasonably investigate the toxicology
reports or the lab that performed the tests;

strated cause for the default, and actual prej-
udice resulting from the alleged constitution-
al violation. Wainwright v. Sykes, 433 U.S.
72, 90-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594
(1977); United States ex rel. Sullivan v.
Fairman, 731 F.2d 450, 452-53 (7th Cir.
1984). Albanese, however, has not presented
any arguments regarding cause and preju-
dice. Relief based on Claim 1(j) is denied.

[17] In Claim 1(k), Albanese urges that
Kelly provided ineffective assistance of coun-
sel by failing “to request individual voir dire
of potential jurors and separation of individu-
al, potential jurors, during the voir dire pro-
cess.” The court need not analyze the first
part of this claim under Strickland because it
is contradicted by the record. Potential ju-
rors were questioned separately in voir dire.
Judge Cowlin explained jury selection proce-

dures to the venire in the McHenry County

trial as follows: “we will call fifteen jurors up
and then begin the selection process....
One [venireperson] will be in here in the
courtroom with us and then the other four-

teen will be in Room 428 and as you know, .

we are going to take one at a time.”
(McHenry R. vol. XXVII at 619). A similar
procedure was followed in the Lake County
trial. Judge Inglis explained, “Now, the first
juror we called will report to Courtroom
304.... The next fourteen jurors will report
to the jury deliberation room.” (Lake R. vol.
4 at 226). As to the second part of Claim
1(k), the court rejects out of hand the notion
that failure to request separation of individu-
al potential jurors during voir dire consti-
tutes deficient performance of counsel under
Strickland.

Claim 1(1) is also partially contradicted by
the record. Albanese asserts that Kelly
“(failed to file any pretrial motions to de-
clare the Illinois Death Penalty Statute un-
constitutional because of the unbridled dis-
cretion it places in the prosecutors.” To the
contrary, Kelly did file a pretrial motion in
the McHenry trial to have the Illinois Dest

that he failed to rebut certain of the State's
evidence regarding the date of delivery of ar-
senic to the defendant; and that the failed to
accurately present the defendant's financial
condition.

125 Ill.Dec. at 840, 531 N.E.2d at 19.


ALBANESE v. McGINNIS | 543
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

for arsenic in the tissues of the victims upon
which the State’s expert relied in opining
that arsenic poisoning was the cause of each
death. Albanese argues that the problems
with the Toxicology Laboratory’s procedures
exposed in 1985 render the arsenic test re-
sults obtained in 1981 unreliable. Further,
Albanese contends that Kelly should have
discovered these problems and undercut the
State’s.. evidence that arsenic poisoning
caused the deaths of Marion Mueller, Mary
Lambert, and M.J.

Albanese raised the issue of the reliability
of the Toxicology Laboratory in his post con-
viction petitions, and was given the opportu-
nity for a full evidentiary hearing on that
issue in the McHenry County post conviction
proceeding. As evidence, Albanese offered
three reports about the Toxicology Laborato-
ry: (1) report dated March 26, 1985 by Di-
rector of Public Health Thomas ‘Fitzpatrick,
Jr.; (2) report of May 24, 1985 by Randall C.
Baselt, Director of the Chemical Toxicology
Institute; (8) report dated April 3, 1986 by
Alphonse Poklis, Director of the Division of
Forensic and Environmental Pathology of
the St. Louis University Medical Center
School of Medicine; and (4) Department of
Law Enforcement “Toxicology Final Re-
port.” The Fitzpatrick and Baselt reports
were the result of an investigation of the
Toxicology Laboratory undertaken by the
State of Illinois. The Poklis report was pre-
pared at the request of Albanese’s post con-
viction counsel. These reports were not ad-
mitted as substantive evidence because Alba-
nese failed to come forward at the post con-
viction hearing with witnesses or affidavits to
authenticate the reports or vouch for their
truth or accuracy. The post conviction judge
made the reports part of the record for the
limited purpose of preserving the record of
what another of Albanese’s witnesses, Ms.
Andrea Lyon, relied upon in reaching an

20. The tests in the arsenic poisoning case re-
ferred to by the Baselt report were performed in
1984 or 1985, the period in which the Laborato-
ry was experiencing the most problems, accord-
ing to the reports. See Illinois v. Swango, 144
Ill. App.3d 1187, 110 Ill.Dec. 305, 510 N.E.2d
1336 (1986). The Baselt report notes with re-
gard to the Swango case, that the tests performed
at the Laboratory neither confirmed nor refuted

opinion as to Kelly’s performance as counsel.
(Post Conviction R. vol. II at 282-83).

Recognizing the potential seriousness of
the issues raised in the reports, the Illinois
Supreme Court considered the reports as if
they were accurate and had been admitted as
substantive evidence. Albanese III, 125 Il.
Dec. at 842, 5381 N.E.2d at 21. After examin-
ing the reports in detail, that Court found
that the information contained in them did
not entitle Albanese to a new trial. Jd. The
court made several factual findings in the
process of reaching its legal conclusion on
the issue of granting a new trial.

Under § 2254(d), this court defers to the
following factual findings of the Illinois Su-
preme Court, which it finds to be supported
by the record. First, the reports do not
indicate that the Toxicology. Laboratory was
experiencing extensive or grave problems in
testing in 1981. Jd. Second, the reports
discuss testing irregularities in 1984 and
1985, but provide other evidence that the
Toxicology Laboratory was functioning ade-
quately in 1981. Specifically, the reports
indicate that the Laboratory’s most signifi-
cant errors occurred in blood alcohol testing,
but also that the Laboratory “performed
very well” in blood alcohol testing from 1972
to October 1984. Jd., 125 Ill.Dec. at 841, 531
N.E.2d at 22. Finally, the Baselt report
singled out the Laboratory’s handling of a
particular case of (non-fatal) arsenic poison-
ing for criticism, but did not mention the
more serious case of Albanese. Jd.”

It is against this background of the state of
affairs at the Public Health Toxicology Labo-
ratory in 1981 and 1982, that Albanese’s
Claims 1(g) and 1(i) must be examined. Al-
banese contends in Claim 1(g) that Kelly was
ineffective as counsel because he did- not

follow a “lead” into Laboratory problems.

provided by Dr. Conibear. At the post con-
viction hearing, Dr. Conibear testified that

crir.iual poisoning. (Baselt report at p. 7). The
results in that case were also obtained using the
Gutzeit method, but did not show high concen-
trations of arsenic, as did the results in Alba-
nese’s case. Therefore, no clear inference can be
drawn that the Toxicology Laboratory generally
overstated amounts of arsenic in specimens sub-
mitted for testing.


546 823 FEDERAL SUPPLEMENT

Penalty Statute declared unconstitutional, al-
beit on the more general grounds that the
statute violated the due process and equal
protection clauses. (McHenry Common Law
R. vol. 2 at 483-84). This motion was denied.

[18,19] Albanese does not present any
argument, factual or legal, to support his
claim that failure to file such pretrial motions
constituted deficient representation. To sat-
isfy his burden, Albanese must show that in
failing to file a motion in the Lake case to
invalidate the Death Penalty Statute, Kelly’s
representation fell below an objective stan-
dard of reasonableness. See United States v.
Donaldson, 978 F.2d at 394. This he has not
done; Claim 1(/) cannot operate to relieve
Albanese of his sentence.*4 The court notes
as a matter of law that statutes are pre-
sumed to be constitutional and it can hardly
be required that counsel routinely challenge
this presumption, regardless of the serious-
ness of the issue, unless the unconstitutional-
ity of the statute in question is truly mani-
fest.

After careful consideration of the record in
light of all of Albanese’s ineffective assistance
of counsel claims, singly and in combination,
the court concludes that Kelly’s performance
was not constitutionally deficient and did not
prejudice Albanese’s. rights. Accordingly,
habeas corpus relief on that basis is denied.

II. Trial Court Error.
A. Witherspoon v. Illinois.

[20] In Claim 2, Albanese asserts that
the trial court erred “in allowing death penal-
ty qualification of the jury that was to decide
the guilt phase of the trial.” > This claim is
based on research purporting to show that
“Witherspooned” juries are conviction prone.

In light of the long line of cases upholding
the propriety of conducting a Witherspoon

24. Even if Claim 1(1) could satisfy the perfor-
mance prong of the Strickland inquiry, it would
not survive the prejudice prong. In Silagy v.
Peters, 905 F.2d 986, 993-94 (7th Cir.1990), cert.
denied, 498 U.S. 1110, 111 S.Ct. 1024, 112
L.Ed.2d 1106 (1991), the Seventh Circuit held
that the discretion vested in the prosecutor by
the Illinois Death Penalty Statute did not violate
the due process clause or the Eighth Amendment
prohibition against cruel and unusual punish-
ment.

inquiry in voir dire, Albanese would have had
to muster considerable support for this claim
to have a hope of success. See Buchanan v.
Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97
L.Ed.2d 336 (1987); Lockhart v. McCree, 476
US. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137
(1986); Wainwright v. Witt, 469 US. 412,
105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In-
stead, Albanese has offered a cursory and
patently meritless argument. Citing Grigsby
v. Mabry, 483 F.Supp. 1372 (E.D.Ark.1980),
Albanese urges “research has now conclu-
sively demonstrated that juries which are
death qualified pursuant to Witherspoon are
not impartial as guaranteed by the Sixth and
Fourteenth Amendments.” (Petitioner's
Resp. to Mot. to Deny Pet. at 19). Albanese
fails to recount the convoluted history of the
Grigsby case, including the fact that when
the Supreme Court considered the case, it
rejected the very evidence which the district
court had accepted. The court now remedies
that omission.

In the case cited by Albanese, the district
court determined that an evidentiary hearing
should be held on petitioner Grigsby’s claim
that he could present studies showing that

death qualified juries are conviction prone.

483 F.Supp. at 1390. That hearing was held
in July 1983. Grigsby v. Mabry, 569 F.Supp.
1278, 1277 (E.D.Ark.1983). In the meantime,
Grigsby’s case had been consolidated with
that of two other habeas petitioners who had
raised the same claim of error: Ardia
McCree and Dewayne Hulsey. Jd. at 1275.
The plot thickens. Before the evidentiary
hearing was held, Hulsey’s claim was found
to be procedurally defaulted and Grigsby
died in his cell. Jd. at 1276-77, n. 2. The
district court concluded, on the basis of nu-
merous social science studies, that the prac-
tice of Witherspoon death qualification pro-

25. Death qualification of a jury occurs when
prospective jurors are excluded for cause be-
cause their views on capital punishment would
prevent or substantially impair the performance
of their duties as jurors. Wainwright v. Witt, 469
U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968) established guide-
lines, which have been modified over time, gov-
erning the prosecution’s removal of prospective
jurors opposed to the death penalty.

544 823 FEDERAL SUPPLEMENT

she told Kelly before Albanese’s first trial
that there were “problems” at the Toxicology
Laboratory.24 (Post Conviction R. vol. VIII
at 414). She did not give any specific testi-
mony the “problems,” and stated that she
was not familiar with the procedures or
equipment used by the Laboratory. (Jd. at
408-09). Albanese’s argument that Kelly’s
failure to investigate this information from
Dr. Conibear constituted deficient perfor-
mance rests on conjecture.

The fact that [Dr. Conibear] told [Kelly]
there were problems with the lab should
have been enough to cause him to investi-
gate that rumor and determine if, in fact,
the lab did have problems. ‘If he discover-
ed the lab did actually have problems, he
would then have a duty to determine the
nature and extent of the problems and
present those to the fact finder who was to
evaluate the evidence presented by that
lab and use it-in determining [Albanese’s]
guilt or innocence.

(Petitioner’s Resp. to Mot. to Deny Pet. at

12-18) (emphasis added). Considering all of
the circumstances of the case as they existed
in 1982 before trial, Albanese has not per-
suaded this court that Kelly’s failure to in-
vestigate the “rumor” that the Laboratory

was not functioning properly was an unrea-
sonable choice. See Strickland, 466 U.S. at
691, 104 S.Ct. at 2066 (“In any ineffective-

ness case, a particular decision not to investi-
gate must be directly assessed for reason-
ableness in all the circumstances, applying a
heavy measure of deference to counsel’s
judgments.”) Given the nebulousness of the
“lead,” and Dr. Conibear’s opinion that ar-
Senic poisoning was the cause of the deaths,
the decision not to investigate possible “prob-
lems” at the Toxicology Laboratory was not

21. In his testimony at the post conviction hear-

ing, Kelly denied that Dr. Conibear ever men-
tioned such “problems” to him. (Post Convic-
tion R. vol. IX at 455).

22. See supra at 6 for details of Fishbein’s trial
testimony.

23. In Albanese II, the specific claims against
Kelly were as follows:
trial counsel erred (1) eliciting, acquiescing in,
and stipulating to evidence that tended to indi.
cate arsenic-poisoning deaths are more often

unreasonable and did not render Kelly’s per-
formance ineffective.

‘The fact that the Toxicology Laboratory
was closed in 1985 invites curiosity and sec-
ond guessing, but this court must strive to
“eliminate the distorting effects of hind-
sight.” Jd. at 689, 104 S.Ct. at 2065. Alba-
nese has not provided any evidence that Kel-
ly, or anyone for that matter, would have
discovered problems at the Toxicology Labo-
ratory, had he undertaken the investigation
Albanese now claims was indispensable to
constitutionally adequate representation of
counsel. Similarly, Albanese has not shown

that if Kelly had consulted with an expert

about the State’s testing procedures that ser-
ious errors would have been discovered. Ac-
cordingly, relief based on Claims 1(g) and 1(i)
is denied. .

_ 5 Procedural Matters.
Claim 1(j) is defective because it was never

fairly presented to the Illinois courts, This

claim asserts that Kelly “[flailed to object to

hearsay testimony of Donald Fishbein.”

Fishbein, the attorney for Allied Die Casting,
testified regarding M.J.’s statements to Alba-
nese during a company meeting at which
Albanese was demoted: On direct appeal
of his McHenry conviction, Albanese argued
that he should receive a new trial due to the
admission of hearsay testimony by Fishbein.
The Illinois Supreme Court found that the
testimony “was not offered for the truth of
the matter asserted, but for a nonhearsay
purpose.” Albanese I, 79 Ill.Dec. at 616, 464
N.E.2d at 214. Ineffective assistance of
counsel was never raised on direct appeal of
the McHenry conviction; it was raised in
Albanese II (Lake County direct appeal) and
Albanese III (post conviction appeal), but
Fishbein’s testimony was not the subject of
any of the specific claims.23

the result of homicide than of any other cause;
(2) failing to object to evidence of defendant's
finances and to references to other crimes in
the confession and suicide notes; (3) failing to
object to a statement in closing argument that
defendant had been jailed for failure to pay
child support; and (4) failing to examine the
State’s financial exhibits in sufficient detail to
expose alleged flaws in testimony from the
State’s financial expert.

85 Ill.Dec. at 451, 473 N.E.2d at 1256.
In Albanese III, ineffective assist: > of coun.

sel was urged -in the following clai as:


068

“prohibit[s] a certain category of punishment
for a class of defendants because of their
Status or offense.” Saffle, 494 U.S. at 494,
110 S.Ct. at 1263 (citations omitted). This
exception plainly does not apply to either of
the “new rules” which would provide Alba-
nese with the relief he seeks. The second
exception allows retroactive application of a
“new rule” which announces a “watershed”
rule of criminal procedure. Teague, 489 U.S.
at 311, 109 S.Ct. at 1075. The various formu-
lations the Supreme Court has given this
second exception illustrate that in order for
the second exception to apply, the “new rule”
must be truly profound. The exception is
reserved for rules “implicit in the concept of
ordered liberty,” and “bedrock procedural
element[s].” Jd. at 314-315, 109 S.Ct. at
1077. The Court cautioned that “such rules
are ‘best illustrated by recalling the. classic
grounds for the issuance of a. writ of habeas
corpus—that the proceeding .was dominated
by mob violence; that. the prosecutor know-
ingly. made use. of perjured testimony; or
that the conviction was based on.a confession
extorted from the defendant by brutal meth-
ods.” Teague, 489 U.S, at 313-14, 109 S.Ct.
at 1077 (quoting Rose v, Lundy, 455 U.S.
509, 544, 102 S.Ct. 1198, 1216-17, 71 L.Ed.2d
379 (1982) (Stevens, J. dissenting) (footnotes
omitted); Graham, — US. at ——, 113
S.Ct. at 903.

That “watershed” rules are scarce is con-
firmed in reviewing recent decisions applying
the analysis outlined in Teague. None of the
following constitutional rules qualifies for ret-
roactive application under the second Teague
exception: (1) the prohibition on prosecutori-
al argument that diminishes‘a jury’s sense of
responsibility. for the Sentencing decision,
Sawyer v. Smith, 497 U.S. 227, 110 S.Ct.
2822, 111 L.Ed.2d 193 (1990); (2) the rule
against racially motivated peremptory jury
challenges established in Batson v. Ken-
tucky, Williams v. Chrans, 945 F.2d 926 (7th
Cir.1991); (8) the entitlement to a lesser
included offense jury instruction, Andrews v.
Deland, 943 F.2d 1162 (10th Cir.1991), cert.
denied, — U.S. —, 112 S.Ct. 1213, 117
L.Ed.2d 451 (1992); and (4) the prohibition
on police initiated interrogation after a defen-
dant has asserted his or her right to counsel
at an arraignment hearing, Collins v, Zant,

823 FEDERAL SUPPLEMENT

892 F.2d 1502 (11th Cir.), cert. denied, 498
U.S. 881,111 S.Ct. 225, 112 L.Ed.2d 180
(1990). Neither of the “new rules” which
would afford Albanese relief from his
McHenry County death sentence is of any
greater magnitude than those listed above.
Accordingly, the second Teague exception is
inapplicable and relief based on Claim 14 is
denied.

No constitutional infirmity having been
found in the McHenry County sentence after
examination of Albanese’s claims, the court
does not disturb it.

Before concluding, the court wishes to note
that its task in resolving this matter was
made more arduous than necessary by the
inclusion in the Petition of claims too tenuous
to withstand — consideration. These claims
were examined by the court, and.their rejec-
tion explained in some detail, because of the
seriousness of the penalties at stake. While
the court appreciates the duty of zealous
representation, the inclusion of insubstantial
claims results in waste of judicial resources.

CONCLUSION

For the foregoing reasons, the Petition and
Supplemental Petition for Writ of Habeas
Corpus of Charles Albanese are denied.

APPENDIX

Claims of Constitutional Error Contained
in Charles Albanese’s Petition and Supple-
mental Petition for Habeas Corpus

Conviction Claims

Petitioner’s conviction was obtained and
remains in effect in violation of rights guar-
anteed to him under the Sixth and Four-
teenth Amendments to the Constitution of
the United States, in one or more of the
following ways:

1. Petitioner’s trial counsel failed to provide
reasonable effective assistance of coun-
sel, and his deficient performance preju-
diced the Petitioner and deprived him of
a fair trial, under the standards set forth
in Strickland v, Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), in that said attorney:

ALBANESE v. McGINNIS 567
Cite as 823 F.Supp. 521 (N.D.III. 1993)

Cir.), cert. denied, —- US. , 118 S.Ct.
495, 121 L.Ed.2d 433 (1992). At the thresh-
old of any such inquiry, however, an obstacle
lurks: Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989) and its
progeny. The court must ask at the outset
whether, if the habeas petitioner were grant-
ed the relief he or she seeks, a “new rule” of
constitutional law be created. Graham v.
Collins, —- U.S. ——, ——, 118 S.Ct 892,
897, 122 L.Ed.2d 260 (1998) (citing Penry v.
Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934,
2948, 106 L.Ed.2d 256 (1988) and Teague, 489
U.S. at 301, 109 S.Ct. at 1070 (plurality opin-
ion)). A “new rule” cannot be announced or
applied on collateral review, unless it falls
into one of two exceptions. Graham, —
US. at ——, 113 S.Ct. at 897. A rule is
“new” if it was not “dictated by precedent
existing at the time the defendant’s convic-
tion became final.” Teague, 489 U.S. at 301,
109 S.Ct. at 1070 (emphasis in original).

[48] If this court. were to grant Alba-
nese’s Petition for Habeas Corpus due to the
trial court’s failure to instruct the jury on life
imprisonment without parole, that ruling
could be based on one of two possible consti-
tutional grounds: (1) that Albanese had an
Eighth Amendment right to be sentenced by
a jury aware that the alternative to death
was life without parole (i.e. that the Gacho
rule is of constitutional dimensions); or (2)
that the Illinois Supreme Court’s refusal to
apply Gacho retroactively is arbitrary and
capricious in violation of the Eighth and
Fourteenth Amendments. The court con-
cludes that each of these holdings would
constitute a “new rule” under Teague.

The discussion of California v. Ramos, 463
U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171

57. The court accepts this characterization of the
basis for the Gacho rule for two reasons: (1) the
court has independently determined that Gacho
was not of constitutional dimensions; and (2) if
Gacho were a constitutional case, Albanese
would be left without a remedy. After all, if
Gacho announced a new constitutional rule,
Teague and its predecessor Griffith v. Kentucky,
479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
would dictate that the new rule be applied only
to cases which were not final on the date it was
issued. Albanese’s case became final four years
prior to Gacho.

(1983), supra at 565-566 illustrates that fed-
eral precedent certainly did not dictate that
juries be instructed about life imprisonment
without parole. In other words, the rule
announced in Gacho was not demanded by
earlier federal cases. Ramos was decided in
1983; Albanese’s McHenry County convic-
tion and death sentence did not become final
until 1984. A reasonable jurist hearing Alba-
nese’s claim in 1984 would not have “felt
compelled by existing precedent” to grant
him relief, therefore relief cannot be granted
on collateral review. Graham, — USS. at
——, 113 S.Ct. at 898 (quoting Saffle v.
Parks, 494 U.S. 484, 488, 110 S.Ct. 1257,
1260, 108 L.Ed.2d 415 (1990)).

The Illinois Court’s refusal to apply the
Gacho rule retroactively is premised on the
statutory nature of the rule. Steidl, 142
Ill.2d at 245, 568 N.E.2d 837.57 In order to
grant relief to Albanese based on the dispari-
ty in treatment received by Robert Gacho
and the eleven other multiple murderers
identified by amicus curiae, this court would
have to find unconstitutional the Illinois
Court’s authority to announce rules prospec-
tively.= Having discovered no federal au-
thority for that proposition, the court con-
cludes that it would have to announce a “new
rule” in order to invalidate the Illinois
Court’s prospective application of the. Gacho
rule. Indeed, such a rule would conflict with
established notions of federal-state comity.

A constitutional rule that is “new’ may
nonetheless be applied on collateral review if
it falls into either of the exceptions identified
in Teague. The first exception applies if a
rule “places a class of private conduct beyond
the power of the State to proscribe,” or

58. Under Illinois law, judicial decisions are gen-
erally given retroactive effect, but it is within the
inherent power of the state Supreme Court to
decide that a decision will not be retroactively
applied. Deichmueller Constr. Co. v. Industrial
Comm'n, 151 Ill.2d 413, 415, 177 Ill.Dec. 446,
603 N.E.2d 516 (1992). The general rule of
retroactivity does not apply if the court “express-
ly declares that its decision is a clear break with
the past, such as when it explicitly overrules its
own past precedent, disapproves a practice that
it has previously approved, or overturns a well-
established body of lower coyrt authority.’ Peo-
ple v. Martin, 240 Ill.App.3d 260, 265, 180 Ill.
Dec. 188, 606 N.E.2d 1265 (1992).

a.

d.

e.

.,

ALBANESE v. McGINNIS 569
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

APPE NDIX—Continued

Failed to consult with any attorneys
experiencing [sic] capital litigation.

Failed to obtain and consult with an
expert in chemistry or toxicology, who
could have refuted or discredited the
expert testimony of the State’s expert
witnesses.

Failed to adequately educate himself in
the field of toxicology, specifically with
respect to. arsenic poisoning and the
methodology employed in investigating
the same.

Failed to obtain an expert witness in
the field of accounting in time to ade-
quately examine the State’s case with
respect to Petitioner's financial status.

Failed to adequately provide the ac-
countant that was employed with suffi-
cient documentation to thoroughly ana-
lyze Petitioner’s financial status, and

‘give an unqualified opinion of same.

Failed to interview the State’s expert
witnesses in advance of trial.

g. Failed to investigate leads provided to

him by Dr. Conibear in investigating the
problems with the Department of Public
Health Toxicology Laboratory, although
such information came to his attention.

h. Failed to rebut evidence of the testing

j.

done by the Northern Illinois State
Crime lab which indicated the presence
of arsenic and several items relevant to
Petitioner’s case, although he was aware
that the qualitative nature of that test-
ing, as opposed to quantitative testing,
was invalid for the purposes for which
the testing was done.

Failed to consult with any expert as to
the reliability of the testing procedures
employed by the State’s expert witness-
es.

Failed to object to hearsay testimony
of Donald Fishbein.

k. Failed to request individual voir dire of

potential jurors and separation of indi-
vidual, potential jurors, during the voir
dire process.

Failed to file any pretrial motions to
declare the Illinois Death Penalty Stat-
ute unconstitutional because of the un-

bridled discretion it places: in the prose-
cutors.

m. Failed to request a continuance when

n.

he was advised of the State’s intent to
seek the death penalty.

Failed to seek a continuance, even
though he became involved approximate-
ly, only one month prior to commence-
ment of trial in a capital case, and he
had no previous capital experience.
The trial court erred in allowing death
penalty qualification of the jury that was
to decide the guilt phase of the trial.
The trial court erred in allowing Rudolph
Schaefer to give an opinion as to the
financial condition of Petitioner, as op-
posed to merely allowing him to summa-
rize the financial evidence that had been
presented. .
Petitioner was not proved guilty beyond
a reasonable doubt.

The scientific evidence used against the
Petitioner was patently unreliable and
inadmissible.

The state of Illinois knew or should have
known of the gross inadequacy of the
Toxicology Laboratory of the Illinois De-
partment of Public Health, and violated
Brady v. Maryland, 378 U.S. 88, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not
providing this information to Petitioner.

Petitioner’s convictions were obtained
based on perjury or other patently false
evidence including, but not limited to:

7. Testimony of Fred Townsend, State’s

Chemist who performed . tests which
were indispensable foundation for opin-
ions as to cause of death, that he per-
formed tests on body tissue samples of
Marion Mueller that he received on May
29, 1981. Evidence now available to De-
fendant reveals Marion Mueller’s body
tissue samples were not available until
August, 1981. All of this evidence was
within the knowledge and control of the
State.

8. Testimony of Fred Townsend that he

only performed two sets of tests on tis-
sue samples of M.J. Albanese, on in May
1981 and one in September, 1981. Doc-
uments now available to Defendant re-

570 823 FEDERAL SUPPLEMENT

APPENDIX—Continued (McH R Vol. XVIII, p. 325, Lake R., p.

veal Townsend performed a third series 1363). The State had police reports and

of tests in June, yielding results that 4 taped interview of Joseph Reichel in
directly contradict the results of the ts possession which revealed that he
May and September tests. Said contra- Zave the arsenic to Charles Albanese in
dictions raise a reasonable doubt as to May or June of 1980, This information

the cause of death of M.J. Albanese. A)] corroborates Petitioner’s explanation
of said documents were within the con. that he wanted the arsenic to eliminate a

trol of the State. rodent or pest problem in his neighbor-

9. Financial exhibits prepared by the State hood. (Neighbors a Charles Albanese
or at the direction and control of the did testify to the magnitude of the pest
State, intentj onally omitted substantia] problem In their neighborhood in the
amount of income (1989—$21,263.13, late Spring of 1980).

1981—$46,800.00) and misreported ex- The scientific evidence presented to con-
penses ° (1980—$23,063.09, 198] — vict Charles Albanese was otherwise unre-

$5,797.93) to create a grossly distorted liable in one or more of the following ways:
($96,924.15 net distortion) picture of 12. Townsend testified to results of test

Charles Albanese’s true financial health. performed on the tissue Samples of Mar-
The 1980 misreported expenses break ion Mueller that he received in May
| down as follows: 1981. He also testified to a Second ser-
| —$10,590.00 transferred from one ies of tests performed on the second set
1 checking account toanother and shown of tissue samples, which yielded identica]
as an expense each time; results as the first. The whereabouts of
—$1,700.00 drawn in cash from account this second set of tissue samples is unac-
and deposited in another, and shown as Counted for for a 15 day period, accord-
an expense each time; ing to the testimony as to its chain of
—$10,773.09. used to pay funeral ex- custody, Additionally, it appears that
| | penses of Marion Mueller. (This was the second set of tissue samples arrived
| not an expense of Charles Albanese that in two separate shipments, 15 days
would create a motive for murder, but apart. One package arrived under the
was handled as such by the State’s wit- coroner’s seal and identified as such.
» ness. It is rather an expense paid by Fifteen days later a Second package ar-
Charles Albanese (or his wife) which was rived at the Toxicology Labor atory with-
Created by the death of which he was out the coroner’s seal or any other
accused. / marking to account for its chain of custo-
10. Michael] Albanese, Jr. testified that on dy. No explanation was ever offered as
September 8, 1980, November 14, 1980, to how and why the tissue samples be-
January 6, 1981, February 4, 1981 and came separated. Evidence handled in
February 27, 198] he was hospitalized such a fashion is patently unreliable.

with vomiting and other symptoms con- .

sistent with, arsenic poisoning (McH R Sentence Claims

Vol. XIV, Pp. 24, 25, 30, 31-36, 38, 29), Petitioner’s death Sentence was obtained,
The State argued that this was part of imposed, and remains if effect against him in
Charles’ scheme to get control of the violation of his rights under the Sixth,
family business. The State had in its Eighth, and Fourteenth Amendments to the
control hospital records that showed Mi- Constitution of the United State, in one or
chael’s hospital admissions were for rea- more of the following ways:

. Sons completely unrelated to arsenic poi- 13. The Illinois Death Penalty Statute, Ch.
soning and that directly contradict his 38 Sec. 9-1 et seq., is unconstitutional, in
claims of vomiting, one or more of the following Ways:

: ll. The State called Joseph Reichel to testi- a. It permits unlimited prosecutorial dis-
fy that he provided Charles Albanese cretion in seeking the death penalty, vio-
with a quantity of arsenic in “late 1979.” lating the doctrine of separation of pow-


. : ‘
ALLEN, JOFN, and SHELBY, Harry, whites, elec. Chester,

XK& (Jasper County) 12-22-1933,

THREE KILLERS
LR OTROCHITED

One Dies Singing Hymn,
| Another Protests Inno-
| cence of Crime.

| ;
CHESTER. ~~ (EP) — Three men.

convicted of murder—-onea Singing

a hymn, another protesting’ hig in- |

nocence and ithe third “speechless |
from fright—-were put to death jn
‘the electric chair at etate prison
‘here: Thursday.

Bix shocks, reaching a maximum
of 2.300 ‘Volts, were necessary to:
kill Harry Shelby, first of the trio!
‘to be exceuted: Ha W8s pronounced |
idead at 12:31 a.m. John Allen, 19, |
_Shelby's nephew, was electrocuted
at 12:44 a, m., and Martin Gray, |
‘colored, was Pronounced dead at!
/12:57 a. m, 2

Shelby and Allen were convicted
jof the torture-murder of Mrs, Mary
Schrader, 24 vear old widow, She

lreven! the hiding Place of money |
the men believed she had hidden |
in-cher farm home,

EL liv,

“Pass: Christman’ Tree, 7

Gray wad found cuilty of killing
:a colored woman, Susie Gregoty,
during A quarrel oyer money. He
leat down in.the chair, his eyes wide
jand staring from evident fright.
‘He mumbled a few words which
‘no one understood.

The three men were marched
‘from their cells in death row past
|A brightly decorated Christmas
itree which other prisoners had pre-
Fetes for observance of the Yule-
tide. Shelby looked longingly at it
for a moment and then niarched on. |

Strapped in the chair Shelby was |
asked if he had anything to say. |
“I want to aing a song,” he told;
Warden Joe Regan. The “warden |
suggested there hardly was time|
for that. The execution was de.
layed several minutes while Shelby :
Pleaded for time to sing. His wish’
finally was pranted. |

Sings Farewell Song.

The tense stillness suddenly
broke as Shelby lifted his full bari-
tone voice in a song, the refrain
of which ‘was “Ill Bid You All
Farewell.” The nerves of 200 spec-
tators were taut and several. were!
weeping as the condemned man |
finished and turned to the warden, '
“All right Jet ‘er go." he said,

Shelby had beasted during. his:
trial that he had killed «lx persons, |
‘one for. each time he had. been!
Placed jn solitary confinement dur. |
(ing a previous prison term. Hin
istory war dilacounted by. authori-.
(‘es and he never named the sup-'
posed victims.

Allen walked to the chair, aes |
for © moment

!
!
4
i

|

looking at those!

about him. “Refora God, I'm Inno-|
“You're:
(Killing an innocent man” |
+ ee ee j we po

cent.” he said

earnestly,


BANA COURIER 02 | Qe ge = @>s

hae
fig Geile: ye gran ee

: ‘By Dudley Me. cAlfister - = te

Most of us tarry in’ “ott wallets;
the usual assortment “of ene “i
and license cards. az = se temies EA :
| But Gus "Schalk, retired Cham-|’

aign fi re.chief;: whois observi
is 66th birthday a anniversary. \ “We
nesday,*t treasures *thrée ‘tickets to

ae a xe.

Three Tickets to r anging

all for the same fellow. pr? +3 “HE ae
Now don’t get ‘thelidea. that back ade
in 1927 justice 1 went ; to “extremes }.

An Champai nC ea ad sae a ee Ns
sure. Fak eh 4 eRe oes Maa : == - _ — Tea —
pat. ,was Simpl “that * tuck gainally Li Pegs ~ Sait. ANS
Fan out on Herschel Lagat rises een

Wicted | “murdérer of: 8 5 Ch spaign Ste

Fran; after’ twor = e: ee f ¢ TRE
e: ie ite ie, Sa 7 Of: the’
This? “event, ae G5 ah

hanging: was’ to~ have ate 0 Fe
Fil 22, but Andrews*'lai ee 53
ed. 4t’ -off to: Det; 516 “arid * ~ then}
ulled another sabbit out of the-Je¢}:
zal hat uatil Dec. 23: “aa PsP
' The lst i the serie of the three ri ;
ickets.carriéd by Schalk-is'the.redl] She} “ yee on
McCoy, however ‘and harks the soos ae a nea een ears

date'of Andrews’ demise: R3y, 6 Aa? <A ‘large’ eckade. RE Shit

© It was’ Strictly; an“ ‘invitational {éd ‘to the south As ‘the. county; jail, | o0 a “didn't Ae s
affair from ' ‘the. beginning. ‘Sheriff | [Schalk ” “recalls, * Sand, ‘there /were|G said.’ ua gy fale oi an

tows 8 Nia
Ni, 972 Lt..Lt _petlome fatiyf 7 ul wh Fo,

dv tis Fo" as, wre opperlee Speck Mrpaty Lo nee

th. GvLrecws> har gong


Seale trenches: 3 te

~~ ANDREWS, .Herschel, white, 35, hanged at Urbana, Illinois, on

erschel Andrews Las?.
ing Here, Not € Christine

hase ae ae aah sSaeah at *
pee! mt “ “ Ision which ended anh As Arlee
“The macabre Aistincion ‘of have ee “Officiating -at i arg was| giving Tate.a severe beating te ee
g. been ‘the ast man’ Mae be in | Phil - Hanna,--who- ‘also, ‘superyised |. cot ‘a day. ‘before ‘the ‘slayin;
apaign | “Coanty righ be: |the: “hanging © “of = Christmas’ ‘Eye-| Andrews, 335 “went | -agoumd the’
ongs i.t0 : Herschel Andiews, athe witnesses sto thei! ‘Christmas “hang-|n paig a been
et that\fate Dec. 223, 19275 es Aing* ‘said: <Weédnesday etharsit sywas he
E ‘Local, newspapers ‘erred Tuesday badly botched. : be Andiews hang! d
naming John : Christmas, hinged ing,” however, was termed: by “The}
31921, #as: the: last man-to’ be® so Courier “as. “the quickest, on Tec c
unished: ata ERY Soe ord.’ eae Aa Pees ae (Ox!
"3 Andrews, found “guilty ‘of the] ““Andrews’ last words’ before Tee ty a ake with: tee aber a eels
murder. of “Thomas “Tate ‘on Christ ipa ‘the: ditional “hood (over declaring that iF. someone wees
mas. Day, 1926,: “was the last ‘man |his. head | “were, < wish “you alla wake up the “man“he,' An ews
‘o~mount ‘the: ‘old gallows,” which Merry Christmas Peal. ahap Pey D New ; would vi thé: mano fale oS ae :

ee et been ‘destroyed: ‘by. Sheriff} Year.” NSS NET AS ree M “No. ‘one woke’ ‘the-‘man Sup but

~e Everett’ J, Hedrick Moses ‘of their! . _ Five men tugged at five Tepes tolat’ this. juncture’ Tate. “strolled * ‘ins
termite-wasted condition."="*, Base *|spring the trap. Only 2 ‘one : ‘of the Astrea jumped the ‘man’ with * a
rc However, ‘the: sheriff said the TOpes | was: connected ‘so that “no| knife and slit, his- test * Severa
~ door’: through’: which “‘con- pes eee zich is as «the <fight hours later “Andrews
demned ~ “men ~phunged: to, ; their ; SN Sra et alt at his” 412° ae ath: ‘Se. soon
deaths as “in: “good: ‘condition “Gnd ~ y | house: without trouble. Pept ae
“be” “preserved. “asa, ‘kind*of|2 Pai de originally. Was’ pentenc dt

i
\
’
>
.

ee Se ke sie

jee ae 44 ie n RI: rs * “j= x 5 3 METS.
. Hangin 2 yy 7 Fas se pene oc ae a BS gations, 8 Smee ret oc oe ae ve Deeg eater te
x} angings in. counties came counties- Pa fpr 2ex| Was granted. ta give R ou

tal Se te

‘an end. about. 1938, “when. the = Andrew drew s slew? Tee ey Court time. 40 review his ‘case. Se.
State degi islature tuled= that’ execu: without’ ‘motive;. The Courier noted, review 'u pheld: the: ‘sentence. of:
_ tions” sold’ wtake place: ‘only * “atlin “one: of “the” “most” brazen and Circuit ‘Court: ‘and “the ‘news! ime
| ffoliet and “Menaed.} itentiaries. dora" “Crimes” tecorded “in "the ¢state | for, esi fixed by. “the ‘court. 25 ae
| Only‘ exception is. ‘Gook Sonne for “several generations.” a: SPs ae Sy “« Credit for. the correction “goes ‘to
S which still Sandie its own; yagi. Tate “was: described ‘as: aneffets: Walter: ‘Cooper, ‘retired: Urbana 1 po
4 F According to The Courier stories| ive and elded y;:‘shunned trouble iceman. ‘who was ‘ne -of the 3 cae
| the

cae

ca

severe oy

per. the hanging, ‘Andrews “beamed |at ‘all ‘times.’ “However” he: >and| who. " accompanied ‘Andrews’
with radiance”” “as he “Inpunted the Andrews had - ‘had’ ‘trouble <! “of a gallows;.:and ° Chick, Brown; ‘who

A Ae bes |S
_ ; Iscaffold up * ‘in an | enclosure minor nature,” “on-a orevious occa- elas et the execution." ie
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ronpers.

ANDERSON HANGS
FOR LAVIN DEATH;
CALM AT THE EN

Dennis Anderson, 21 years old, was
hanged in the county ‘jail yesterday
for the murder of Lieut. Patrick Lavin:
of the Chicago Junction railroad po
lice. He went, to nis death calmly,
apparently indifferent to his fate, and
declared he had nothing to say before
he died. ;

When the Rev. Willam O’Brien of
the Holy Name cathedral heN out
a crucifix to him he kiseed fit and a
second later he shot downwefsd through
the trap. Twelve minutes after the
trap was sprung he was pronounced
dead.

The crash of the trap sent terror
to Anderson's brother John, who is be-
ing held in the county fall for the
murder of John Eggert, a south aide
saloonkeeper, a week . John ta
only 18 years old, and w the death
ceremony over his brother was taking
place he was attending the jail school
in charge of John Connelly. When the
loud crash told John his brother had
plunged to his death, the youth fell
forward on the floor weeping. John
is going to plead guilty to his crime.
His brother when they bade each other
farewell Thursday night advised him
not to “take a chance” with a jury.

©

.
02
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LAURENCE iE SHUP, EDITOR AND PUBLISHER NEWT ON, ILLINOIS, TUES spay, OGTOBER 1 % » 198 83

cS

“PUBLISEED EVERY, TUBSDAY AND FRIDAY

EIGHT JURORS ACCEPTED

Two More Tentatively Accepted in the
Trial of Marry -Shethy and John. Allen

When court adjourned at 6:30
«clock last evening, eight jurors had
“@ been accepted by the prosecution and)
defense in the trial of Harry Shelby:
and Jehn Allen of Danville for the.
torture murder of Mrs. Mary: Schrader!
. of St. Peter vicinity. Court. will re-
convene at 8:30 o'clock this morning,
at which time the picking of a jury!
| will be resumed,

Jurors: accepted were: Tlza Allison, | i
40: Charles Kerner, 36; T. V. McCoy,:
- 62; Milo Flynn, 23; Raymond “Wag-:
ner, 33; T. QO.. Fischer, 32; Oliver,
Cleaver, 35; and Kilroy Sprague, 23:
‘cm All are farmers and all are married

Ss men, except the two latter, most of
- them with families. In addition, Ura

Swank, 28, a carpenter, and. Guy

Hanna, 26, an orchard worker, have}

been tentatively accepted. -_
| Questioning of the prospective
* jurors was carried on by State's At-
} torney Homer Kasserman on behalf of |
the people, and by Milo D. Yelving-
“ton and George W. McColley on the
ae part of the two defendants. Hvery!

Ying examination about his knowledge
} of the case, whether he had formed.
7 conclusion or discussed the matter i
} with others, Mr, Kasserman asked
zach man if he had any scruples}
against the infliction of the death
genalty in a proper case, building up
: che expected plan of the state to ask
jor the men..to be sent. to. the electric:
‘pair. In spite of this onky°one has.
«9 far indicated any such scruples.”
Allen and Shelby were brought into
the court room by Sheriff C.. M. Sow-
i sys shortly after 10 o’clock, soon after
F Judge Thomas M. Jett of Hillsboro
ae had “convened court. They were hand-
E F mffed to each other and were under
Gam se suard of Sheritf Sowers, and
tame. Qeputy Sheriff George Watkins, as-
@®. sisted by ten members of the state.
~aighway police, J. H. Brummer of
’ Newton, Marlow Hull of Palestine,
Albert Porter of Robinson, Don Clark
’ @ Flora, Jesse Shipley. of Olney, Rus-
wil Mieuer of Lawrenceville, George}
| yoiley of St. Francisville;... Albert
f uockgeiger of Mount Carmel, Guy
ssifert of Albion and Robert Hodges
SQ of Fairfield, and Sheriff.John Keller

. yeiremun was subjected to a search- |;

TRE BN See ke

EIGHT JURORS. “ACCEPTED at

"Two More Tentatively Accepted in, the
Trial of Harry Shelby und John Alien :

(Continued fronr FrontPage}: :

injuries inflicted by threemen‘ who
beat, criminally assaulted And: tortur-
ed her, her aged brother and daughter. |:
Due to uncertainty as to. the cause. of
death, five separate vounts are named}

her demise was due to acme. Sis |
‘cause, - ’
Alien and Shelby were ‘irasted: ‘atl
Danville on August 81 © by. Sherit?
Sowers, after he had traced” the. li- |’
cense numbers of a car seen’ in- the
St. Peter vicinity the day -before. the |.
crime, the occupants. of: which “hadi.
asked: for “Henry” Weidam,. ‘deceased :

by Sheriff Sowers, City Marshal Han-|’
sel Brackett and other: officers, aud}
Shelby was arrested a littlé later;
The men were brought back. to Rob-}.
inson, where alleged confessions were |:
obtained’ from Shelby and Allen. of},
participation in the: crime, and: from |}
Peck to furnishing the car used “byy
them. Peck was not indicted here;
but is: being held at Danville” for: triak
for robbery.

Judge Jett has. indicated. that. he
will commence: caurt::at 8:30 in the
morning, and hold until 12)" at which
time adjournment will be taken until
1:30. Court will then reconvene and|
continue in session until’ 5:80 or. 6)
o’clock, The jury will ‘probably he}
completed by 10 o’clock this. morn-|,
ing, after. which the opening: state-},
ments to the. jury will be’ delivered.
The case will undoubtedly: take: most|
of the week to complete. |; |
State’s Attorney Kasserman- has
the assistance of State’s Attorney J.
Stanley Bradbury of Robinson and].
State’s Attorney Omer. Lewis of!
Olney. The former wul probably be.
a witness,

"NAS Sores anized.
en Timbhanw At

der died the next day as’ a- eenalt oft:

in the indictment, each charging that)

brother of Bernard’ We eldam. © This!)
was. found, to have:been Heensed to]!
Harold Peck of Indianapolig and Dan-|)
ville, and the latter and Allen’ wets ]/
picked up on the streets of. Danville ||

__ 2ND YEAR, NO. 55


Caja

we. voiley of St, Francisville,. Albert
ya@e ilockgeiger of Mount Carmel, Guy
*gm@ wifert of Albion and Robert Hodges
cage Fairfield, and Sherif¢ John Keller
Sak of Robinson. 7

Ro The men were formally arraigned
me cad entered pleas of not guilty to the
ge urder charge, as they indicated they
ryould last Monday. Immediately
» after this Mr, Yelvington moved to
save the indictment quashed but was,
-werruled by Judge Jett whe held|
age iat it was sufficient, “pla Ba

sm The court room wag crowded, every
am seat being taken. Judge Jett had
$m indicated that he would not permit
anyone to stand up in the room, and
gm that he will allow no denionstrations

@eon the part of the audience, This ig
4@ being done to insure ag far as: possible
Sa® that there will be no reversible errors
Sa committed. All doors are guarded by
‘am heavily armed officers, while more are}
gm wailable in the corridors, with. riot |
dee type shot guns handy.
om With the adjournment of court,
gam the regular venire of thirty men and
wea special venire of thirty. had been
om esamihed except for Homer H, Hunt. |
“The jury retired under the supervi- |.
@ sion of Bailiffs Louis Faller and!
gm Srhart Birk, who were instructed to
ga keep them locked up for the night;
‘and to prevent them from convers-:
‘ing with anyone. They were warned |
by Judge Jett not to discuss the case |
‘among themselves. ;
ae Veniremen called but. not: accepted
were: J. E. Correll and H.-W: De-
bow, excused because. of being over
‘65 years of age; Cecle Matheny and
James Hays, excused because of their
Hippler, excused be-
; Joseph Dhom, Clem
Long, Merritt: Bower,
‘Frank Weber, Francis -Raef, -Wayne '
Billman, John Wagner, Elmer Cum-|
mins, William Jester, Eber White-
Aurst, Louis D. Mascher, ©. H, Aten,
Victor Thomas, Harry Richards,
George Hill, Louis Reis, Leonard
Menke, R. Hugh Wilson, Herman
Burgener, Russell: Piper, Charles
@mFallert and Raymond Schmidt, ex-
Se cused by the defense; and Charles
Kocher. John Tarr, Zenas Price, Owen.
‘Monroney, John WwW. Lobmier, A, Cc
Sem Clazg, Charies Lambird, Guy Scott,.
@eXoy Beckwith, Kd Parker, Mannie!
aumStrole, Wred Miller, Chester’ Bailey,
‘Alva Chronic, Clarence Green, Lester
Barthelme, Leo Bolander,-A..C. Kauf-
paan, Hd Helregal,: and Herman
-Robins, excused for cause,

State’s Attorney Kasserman. . has
subpoenaed a long list of witnesses
‘whom he expects to call, including
Bernard Weldam and Miss.) Anna
Schrader. Indications. now are. that |

SM@@Earl Stark of Westville, who has not
m vet been arrested, are on trial for the
Same murder of Mrs. Schrader; following
rture attacks at har
é St. Peter school on
rthe night af August 29. Mrs, Schra-
(Continued on Page: Five)

_

~—P__

i en

PAURENCE BE. SHUP, EDITOR AND PUBLISHER NEWTON, ILLINOIS, TUESDAY, OCTO

pre

PUBLISHED EVERY TUESDAY AND FRIDAY

BULLERS TO DIE DECEMBER 22

Meehy and Allen CHven Pormal Sen-
fence by Judge deti, @riday

Barry Shelbs oo. ‘Oiton auc Jobn
mien OF Danville were sentenced to
Bee iv the choetric chair at the South-
fam Wings penitentiary at chester an
moiday, Pocomber Judge
nomaAs AT. Foul in cireuit court, Vri-

to? Se .

inv

Reavy nflernoon. Before sentencing
gyiem, Mudge Joke had previously over-|
Riaied & weation Cor a new teialon the:
Aart of Chetry attorneys. |
Mm ibe two omen were found guilly by
Me jury for the murder of dirs. Mary
Rachrader, who diel Auras. Sto oag a
mult Of injuries vreecived two drys
The verdict carried a death
makings it sagindatory lov
yage Jeth to sentenee thei 1 the
ub sail,

Me After Jacke).

im M0 dud reviewed the
Maidence, stating that dre considered
Mee CANC Was wed tried on the part
mi the people and the defense and that
Beis jury was amply warranted by
by evidence in finding them guilty,

ba gay before sentence was passed,

WM inthe drawhny voice, he has used
Myrourout the Griak without arising:
om tis seal, Shelby saved: ‘Uething
sept Unat wou bave put too much on
eid Lhd toh. Whisk (Aller)
farsi Lo Plame. die earie to Rob-
¥e-con Wilh moe lo see Vie Weight (the
Me abinson toon who died reeently ns a!
Beat of gunshol wounds received the
geen Shelby ant Stern were brought
jail, and who is now sant by theo
spe the third pies in the case) and

he held him over. ife didivt know
PBiove was going to be any stickup.
made him go with me. 1 fought

Meo lo nde hiay go elon.
ee As for me, you eave me what L
Haunted. To would rather have
Moir than five years iu the peuiten-
. But vowre being too hard on
Sa vid. He didn’t waut to doit val
Bam nde hima! a pee Cos ek ee RE
son the same question was Asied
wien, he said: “Vin not ‘guilty
foe. | dom Lhink I should have got
Me. ¢ did. ‘They read my statement
Beacon) to the jury and in it I}
f didn't do it”

rs

f ye Thexe what 0 did.

tacking of Mrs. Schrader). Fols

ot matt sentiment, Judge Jett in
‘sured tones pronounced sontlouce
canat Shelby and then Allen, Whett
“nded, he added “Aud may the
1 have tiercy on your soute,!”
aby muttered at this potnt, “Aud
jours, too.”
“fore being
told Judge

taken back to tho fail,
Jett that Vietor

awyv

ruht of Roblason was the — third
. Ye bus been telling officers
since the latter's death that

i ; the ense, and has suceeeded
ah, convincing; See of them that he
“yy be telling the truth. ‘The most
B cortant reasons for bolleviag that
-icht may be the third man ore:
that Shelby early in the “questions
ne which Tod to his confession; raid:
Wyovll be surprised when you find
B who the thitd man is to find that
Bocas this room tonight,” 2. That
“weral withesees have sud that the
d man kept back in the car oul
M sight. Wright had worked in the
Bonber business in and vewr Newton
BR oaumber of years ago, making him
Fy identification if seen, whjle no
Ras any knowledge of Barl Stark
i 4 Westville, sought as the third mn,
Fecr Deine Kere before, Wright was
Bo cusslioned abort the Sehrader
dco and Shelby jkmew it.

TInastdng for a new trial, Milo 1D.
Bivington and Georre W. McColley,
atorneys ror the defendants, raised
je sapie points they had made durtny
the Uriak -that the confessions were
stained through coercion and that the
‘fondantsa) were afraid of mob viol-
cco, = VAomer Kasserman, state's aty
rsex, did vol make any plea,
“judge Jett stated that he thought
ho defendants had bad a fair trial
and that very few errors were atl-
pitted. We said that regardless of
ghat they were charged with, the de-
jndanis were entitled to nm fair, ime
yartial trial, and that he believed they
had obtained this, He went nhead to
mitline the evidence, witness hy wit
ness, and point out the completeness
bY the identification of {he two mea,
ye apid that the two Schackmenn
pos (Kalph and Clarence) hadyseen
them the evening before the crime
gud pointed them out. George Fear
pad seen them on the morning of the
crime, aud had picked them out. in
court and in jal. And finally Bern-

VAS

ard Weldam and Miss Anna Schrader

{hem as the men who

asked Sbetvy i€ he had auvihing |

the |

yaning: the tortuving and erliminal- |

wry this, in a voice deep with ri]

ample to warrant ‘the jury finding:
them guilly and fixing their sentence,

at death, ia

facts about the six murders whit nh he}
says that bo committed,

four others.

said in the past few days, “and four)

fitted vith uniforms, and placed it

had identified
, ’ re ae ar,

Neves Tinie

af thaiy home.

CLP UAL LEAR eR kee eS

the presencd. of ” State's © Attortiey]
Stanley Bradbury of Crawford eoun-.
ty were related to the jury. Alt of
thia evidence, Judge. Jett stated, wae}

Shelby has promised to élear uy the

Sd far he!
ius confessed to participating’ in the
murders of Mrs, Schrader and Newton} |
Coznd, an aged Vermilion county:
farmer, -but says he bad a part in

‘ve killed six men,’ Shelby hag.
of the murders’ have. been unsolved:
Im going to fell all about Chem.” |
Sheiby said he had killed six persons |’
because he had vowed that he world
tuke a fe for every time be had been!
placed in the “hole” during the prison |:
tarm he revently completed. ‘
"was put inthe bole (solitany aon+
tinement) sis times,” he added ‘andy:
cavh time T waa put down there, 14)
vowed that. dome one wotild Idse their]
lite because of it, Six times DL was
there, nnd six persons have I killed)’:
he bonstfully stated. ety
Shelby and Allen were taken to the
penitentiary at Chester, Monday, by
Sheritf C. Mi Sowers, under & heavy:
guard of highway polivemen. They
were checken in, finger printed, outs)

tho death row to.await their exact-|
tion, In the partly were Sherif Sow-
ers, G. J, Dorn and. J, H. Brimnmier
af Nawton AThart Partay of Rahn:


oo jury Was Jhoaplsy WaLPParuo py

gay before sentence was passed,

hrourbout the trial, withore
Mom bis seat, Sheth sicels
Maccept Ural wou tive put too much on
fee eid, Lich Hd “nde td (Allen
srt to Plane. Tle eane to Rob-
yon will me Lo see vic Wiirht (tbe
eb apinson toon who died rec: ntly as &
ee Lilt of guinshol w ounds received the
en Shelby ard Stern avere brought
jail, and who is nor said by then.
be the third pica ti tie ense) and

held Dim over. the didn’t know
Myre was goings Lo be any stickup.

made hin go with me. 1 fought
Amin Lo niger hin go slong.
‘Ag for me, you Live me what 1
ys," apted. = T would ric tee have the
SB Chan five year's in the peuiten-
y. But. yaure beime Toe hard on
Bid. He didn’t want to clo dt but
Mm eyde him’ ne REIS,
“sen the sarue. question was ‘asked
wien, he said: “Tam not ‘guilty
cont think LI should have got
wt i did. Shey read my slatement
BR kessicn) Lo ihe jary and in it a
vthere what I did. [ didn’t do it’
Taming the torbuvityy aad erliainw-
stacking of Mrs. Sohrader).
ang this, in a voice deep with ros
wes sentiment, Judge
wared tones proneunced
wnat Shelby and then Allen.
ended, he
4) have merey on youu
apy muttered at ‘this point,
cours, Lo.” : :
Sofore bebnvg taken back to the jit
ve tat Judge Jett that Victor

sontouce
Whett

* ee

$5 was Lhe case, and has succeeded
FRR, convincing, Some of them that he
fi. yy be telling the truth. The most
ee nortant reasous Cor believing
right may be the third man are,
P That Shelby early in them questions
ag which lod to his confession, said:
you'll be surprised when you find
Bo who (he thitd man ie to find that
Bocas this room tonight.’ 2. That
veral wilnesees have sud that the
ed man kept back in the car out
ssight. Wreigbt had worked in the
ber business iv. aud pear Newton
number Of Years ALL, making him
ay Jdentirteation if seen, while no
ohas any knowledge of Fart Stark
Weatville, gsourht as the third man,
er being here hefove, Wright was
so questioned about the Selirader
co and Shelby knew it.
In astding for a new trial, Milo 1D.
givington nud George W. McColley,
Stommeys Tor ttre defendants,  reised
Mee SURE points they had made during
Ms Oriat -Uhat the confessions were
Bytained through coercion and that the
Mf condanta were afraid of moh viol-
Bcc, Tlomer Kasserman, state's aty
i wrnex. did not make any plea,
Budge Jett stated that he thought
ipo defendants had had a fair trial
Wend that very few errors were ad-
Mnitted. We said that regardless of
Mhat they were charged with, the de-
Mondania were entitled to a fair, imp
Byariial trial, and that he believed they
Biad obtained this, Ue went abead to
Byatline Lhe evidence, witness by wit-
Bess, and point out the completeness
Mos che identification of the two men,
Bey. said that the two Schackmean
Boys (Ralph and Clarence) hadyseen
Minem the evening before the crime
Band pointed them out. Cleorge Fear
had seen them on the morning of the
crime, aud had picked them out. in
@eourt and in jail. And finally Bern-
A ard Weldam and Miss Anna Schrader
Mad identified them as the men who
had spent four hours at, their home,
peating: and torturing them and erin:
nally attacking Miss Schrader and
ner mother. He stated that Mr, Wel-
dam made an excellent witness for &
man of bis age, nearly 85: Miss
f schrader. he said, was naturally em-
B jarrassed on the stand, but in spite
af this was & proad, straighltorvard
witness whose story was conyineing,
in nadition to these, he hed permit-
ted Allen's confession to go to the
P jury, #O far ag it applied to his own

actions,

4
Ne
i;

=k

B,) evidence in Cindingy them guilty, |
sasked Sbeloy i€ be had anvihing |

Pin the drawl voice, he has used ||
arising |)
“MOLDED |

ole H

Jott in}

added “Aud may the}
sould,

“Au

Re eht of Robinson wars the third |
ye, He tous Hoen telling officers
since the lattes death that

that |

ere ReS CCRC ML Mt iar

¥

Attortioy |

fe wie prapinoa vot

the presencd. of” State's

bdpwepenent vorrei an entay Sine eee

Stanloy Bradbury of Crawford eouns,

So far
hit confessed to participating’ in the
murders of Mrs, Schrader and “Newton |
Coznd, an aged. Vermilion coutity:|
farmer, -but says he bad a part in
four others. > fet

“Eve killed six men,” Sbelby hag,
said in the past tew days, “and four,

of the murders’ have, been unsolved:

I'm going to tell all about them.
heiby said‘he had killed: six persons
because he had vowed that he would
tuko a life for every time be had. been|'
Placed in the ‘hole during the PIIHEH |:
torm he recently completed. 4A
Y was put inithe bole (solitary Qone:
tiuement) sis times,” he added “and|:
eaoh time I waa. put down. there, 44]
vowed that some one wold ldse theik})
lite because of it. Six Umes GL was}:
there, and six persotis have J ited,” |:
he boastfully stated. eats

Shelby and: Allen were talcen, to the
penitentiary at Chester, | Monday, : bY |.
Sherite C. My Sowers, under & heavy.
guard otf highway policemen. “They |
were cheeken in, finger printed; outs,
fitted with Uniforms, and placed in)
the death row: to.await their exech-|
tion. In the partly were Sherif Sow-
ers, G. J, Dorm and J, 1. Brumnier
of Newton. Albert Porter. of Robin
son, Marlow Hull of Palestine, Areh
Steppe of Dietorivh and Jesse Shipley
of Olmoy, 0 eS ve eae

They will goto their death the anane
day that Hubert GC, Moor of Robitison |;
is executed. “Under the law, @ sen)’
tence of death ‘cannot be set, Order |.
than ten days after the: convening yt
the next term of the supreme oot
Ag the high. court meets. Decembe

acne

while Shelby's statements in| wave them a week of grace.

%; December 16 waa the cartes!

ti ate:
tor thelr ‘execution, and Judge ;

tt}

Nera

om k ~~ —
Me Newdn Press.
é


Y
:

ALBANESE, Charles, white, LI ILSP (McLean) September 20, 1995

7

pon

ith
Ee
3 sami
ann yf
y
a ¥
a
pe
* “hat
iis yt) See
BEB: | =
eet te 2: aaa:

by JOSEPH L. KOENIG

McHENRY, ILLINOIS,
MAY 18, 1982

The trouble which destroyed the Albanese family began in August
of 1980 when Mary Lambert suddenly took sick and died. At 89,
Mary Lambert was an unusually active woman who shared a
$150,000 home with her 69-year-old daughter, Mrs. Marion K.
Mueller, in Leisure Village, a Fox Lake, Illinois, retirement com-
munity in Chicago’s northern suburbs. Had she been a younger
woman, her death—coming as unexpectedly as it did—might have
seemed to be of a suspicious nature. But the doctors ‘at McHenry
Hospital, where she expired on August 6th, said that she had suffered
a cardiac arrest and there was no evidence to dispute it.

Just 12 days later, on August 18th, Marion Mueller died under
similar circumstances in St. Therese Hospital in nearby Waukegan,
Once again the official cause of death was listed as heart failure. But
those who were close to-her were sure they knew what really had
killed the silver-haired woman.

**She was just so close to her mom,”’ a family friend said, ‘that
when Mary died it took all the heart out of her. Of course, coming so
soon after Mary’s death it was a terrible blow to everyone.”’

In March of 1981, Michael ‘‘M.J.’’ Albanese of McHenry, Illi-
nois, who had never known a sick day in all his 69 years, abruptly
came down with a grievous bout of nausea and vomiting which forced
his confinement at McHenry Hospital. Albanese was-the father of
two sons, one of whom—Charles Albanese—was married to. the
granddaughter of Mary Lambert, the daughter of Marion Mueller.

During his stay in McHenry Hospital—right up until his death on: ©
May 16th, in fact—it was his eldest son, Charles, who was his most.

devoted visitor.
As he lay dying that spring, M.J.-Albanese signed over to Charles
control of the family business, Allied Die Casting Corp., a McHen-

ry-based sports trophy manufacturing firm valued in excess of.

$1.5 million. Although it was Charles’ brother who was comptroller
of the firm, the 34-year-old was sick at:the time with an_ illness
very much like the one his father was suffering from. The symptoms
were so similar that at least one doctor attributed them to psycho-
somatic causes—guilt over his father’s illness. In any event, the
papers which the elder. Albanese signed arranged for Charles to
assume the vice-presidency of Allied so that he could be on an equal

40

Charles Albanese stood to inherit several thousand dollars
and control of the family’s business. Little wonder he was
a primary suspect in the Albanese family poisoning case.

corporate footing with is brother after his father’s death.

The death of Michael Albanese was also ruled to be the result of
cardiac arrest. It might have remained that way forever had the
McHenry County coroner, Al Querhammer, not received an anony-

_ mous phone call advising him that ‘‘too many members of the family

have been dying quickly.”’

Two days after M.J. Albanese died, diagnostic tests on his body
fluids showed traces of what appeared to be arsenic in his blood
serum. Now county authorities made arrangements for the bodies of

~ all three ‘‘heart’’ victims to be exhumed. Diagnostic tests were also

performed on Albanese’s younger son, who had become sick before
his father died. The findings were not entirely unexpected.

‘*They all suffered from what is called Barres Syndrome, or arsenic
poisoning,’’ the Lake County coroner, Robert ‘‘Mickey’’ Babcox,
subsequently would report. The younger Albanese is a ‘‘very ill man.
He had been in and out of the hospital and is walking with a cane right
now.”’

Additional tests on M.J. Albanese and Mrs. Lambert and Mrs.

_ Mueller showed traces of arsenic in their hair and fingernails. All of

the victims, it was determined, had been fed arsenic over along period
of time with what Babcox termed a ‘‘final, fatal dose given’’ at the
end.

When Coroner’s Babcox and Querhammer discussed their findings
it, was hard for the two: men not to conjure up images of an Agatha
Christie slayer plotting so many deaths. But it would be the responsi-
bility of McHenry Police Chief George Pasenelli and his men to find
such a person if, indeed, he—or she (the traditional poisoner of fiction

. is a woman)—existed.

Chief Pasenelli’s probers began with an investigation into the
recent activities of all the victims. They learned that in the months
before her death, Mary Lambert was ‘‘talked into’’ changing her will.
The new document cut off two of her three children from sharing in
her estate. Her entire life savings passed on to her daughter, Marion
Mueller. And when Mrs. Mueller also died suddenly, the Lambert
estate, which included the home at Leisure Village, passed:on to her
daughter, the wife of Charles Albanese.

‘* Charles Albanese’s own home, the investigators would soon find
out, was a tudor-style residence in an exclusive new subdivision of
northwest Spring Grove, Illinois, the Chicago suburb where he lived
with his third wife and two young children. Neighbors said that the

“two-story home: was worth between $150,000 and $175,000.

When the hx
M.J. Albanese
Die Casting, '
background re
victed of pullir
five years prot

*‘Along witt

after identifyin;

residents with <
about $100 bet
Business ass
trious man wh
children and \
automobiles.
**He was so
mixed with oth
clubs or fraterr
The windfa!
grandmother
Albanese. Alt!
1980, by the er
child support ¢
mortgage pay
attempting to h
six months bet!
The overdue
form of a postd
before Mary L
Albanese sayir
because he ex;
On Thursda'
ly charged wit!
wife’s grandm
been picked up
McHenry and
time before p!:
*“We had to
‘In less than 4
mother and we
community.”
Following hi
ry County Jail 1
the murder of |
Waukegan, a |
charges of mur
At a Thursd
Lake County s
told reporters,
in, such a cold
lies.


There was also talk that Chuck had sold
some of the company’s products below
cost to certain distributors who paid
him in cash.

“The way I hear it is that it’s been
going on for quite awhile,” Hrodey said.
“Maybe while his father was alive, be-
cause I hear he kicked Chuck out of the
company for a time. It may not sound

- like a big deal, but my informant says it
could amount to thousands over a period
of time.”

“Okay, so we may have a motive,”
Floro said. “But where did the arsenic
come from? How was it given to the vic-
tims? Those are the things I'll have to
prove in court.”

Hixedsy shook his head. He said he
had checked every possible source for
arsenic in McHenry County without
being able to trace any to Charles Al-
banese. He said that since arsenic is
used in numerous commercial proces-
ses and by farmers to kill rodents, it
could have been obtained almost any-
where.

“As to how it may have been adminis-
tered,” Hrodey said, “they’ve got coffee
in the executive offices at the plant and
people often eat lunch there. Charley-
boy could have slipped a little arsenic
into some food if he wanted to get rid of
his father and brother. And his wife’s
relatives both visited his home and had
dinner before they took sick and died.”

“That’s speculation,” Floro said.
“What I need to prosecute a case is proof.
We've got to find the source of the arse-
nic and then put it into the hands of the
killer. Without that, it wouldn’t be
worthwhile to even file a charge.”

Floro received the complete report on
the autopsies. It had.been determined
that Michael Albanese Sr. had 37 times
the normal amount of arsenic in his
liver and 30 times the normal amount in
his kidneys.

The report stated that an examina-
tion of his fingernails indicated he had

ingested the arsenic over a period of
several months in small doses. The
fingernail test reveals the length of
time arsenic has been in a body because
they have gradual growth, The tips of
the nails shows the early signs of arse-
nic and the build-up as it is retained in
the system.

Mrs. Mueller had 300 times the nor-
mal amount of arsenic in her body. The
toxicologists stated it was likely she had
ingested a large dose just before death.
Mrs. Lambert also had ingested a large
amount of arsenic prior to her death.

' On Tuesday, November 20th, Hrodey
came into Floro’s office. “I hope you’ve
got something good for me,” Floro
greeted the investigator. “We're in a

bind and we’re going to have to do some- ,

thing in a hurry.”
Floro explained that he had just

"62 Official Detective

heard that Charles Albapese, his wife
and his mother were leaving on a vaca-
tion trip to Jamaica. “Now if.some-
thing should happen to the old lady
in Jamaica, we’re going to have a
tough time following through on an in-
vestigation there,” Floro said: “And the
way I heard it, they’re leaving by plane
from O’Hare Field in the morning.”

Hrodey waited until Floro had
finished and then a big smile came on
his face. Floro looked at him and said, “I
hope that grin means you’ve come up
with something.”

“How would you like two-and-a-half
pounds of arsenic in a couple of plastic
butter containers and a baby-food jar
placed right in the little hot hands of
Charley-boy?” Hrodey responded.

“You got it?” Floro exclaimed.

“T got it,” Hrodey said, “And I guess
you'd best file those charges before
Chuck takes off on his vacation.”

Hrodey explained that after checking
all of the commercial sources where
Charles Albanese might have obtained
arsenic and had come up empty, he next
checked companies with whom Al-
banese’s firm ‘did business who might
have access to the poison. He located'a
metal finishing company in Wisconsin
that used arsenic in its manufacturing
process and who bought scrap metal
from Albanese.

He visited the plant and interviewed
the owner. The man recalled Charles
Albanese had asked to buy some arsenic
from him to kill rodents around his
home. He said he had given Albanese
two-and-a-half pounds of arsenic which
he had put into empty plastic butter

‘containers and a baby-food jar.

“He can place the date and will tes-
tify,” Hrodey said. “It was about three
weeks before Charley’s wife’s relatives
came to visit him and then went home to
die.”

Because of pre-trial publicity in
McHenry, the trial for Charles Al-
banese, accused of poisoning. his father,
his wife’s mother and grandmother, at-
tempting to poison his brother and theft
from the family company, was held in
Bloomington. It took Floro a week to
present the state’s case. Among the wit-
nesses were the physjcians who atended
the victims.

The doctor who had-Michael Albanese
Sr. as a patient related to the jurors his
frustration in attempting to diagnose
his patient’s illness. “He took sick and
steadily went downhill,” he said. “It was
an unexplained thing. We suspected
stomach cancer but the test proved
negative.” Bash

“While. he ‘was in the hospital and
under constant care, wouldn’t the effect
of arsenic have worn off?” Floro asked.

The doctor said it was a reasonable
assumption. —

“Charles Albanese visited his father
in the hospital often?” FLoro asked.

ie i

“He was there, hovering over his
father every day—often several times a
day,” the physician said.

“So, he could have continued to put
the poison in his father’s food, even
while he was in the hospital?” Floro
asked.

The defense attorney objected to the

question on the ground that it would
require the witness to draw a conclu-
sion. Floro withdrew the question. He
felt the point had been made.

Floro introduced into evidence a
cookie jar which he identified as having
come from a credenza in the office of the
deceased Albanese. He called as a wit-
ness Robert J. Wilson, a fingerprint ex-
pert with the Northern Illinois Police
Crime Laboratory.

Wilson testified that he had found the
print’of Charles Albanese’s left middle
finger on the top of the jar and his right
thumb print near the bottom of the jar.

The next witness was Andrew Prin-
cipe, executive director of the laborat-
ory. He testified that an examination of
the cookie jar revealed traces of arsenic.
He also identified a thermos in which
traces of arsenic were found. The ther-
mos belonged to Mike Jr.

The state’s star witness was Michael
Albanese. He had almost completely re-
covered from the effects of arsenic
poisoning. He testified that he had
learned his brother had sold scrap metal
belonging to the company and had kept
the cash payments for it. He said he also
learned that his brother sold company
products below cost to certain dis-
tributors and kept the cash payments.
He testified that he had planned to
charge his brother with grand theft.

The defense’s case was based primar-
ily upon a number of character witnes-
ses and the testimony of the defendant.

Brskt the witness stand, Charles'Al-
banese told the jurors that he had been
framed. He claimed it was his brother
who had poisoned their father and then
had taken arsenic himself to throw sus-
picion upon him. .

“He wanted me out and this was the
only way he could get me out,” Charles
testified. “It would ‘have been too obvi-
ous if he had killed me, too. With me out
of the way, when my mother died he’d
have the whole thing to himself.”

Following the testimony of Charles
Albanese, Floro had a surprise witness.
The man identified himself as having
been in the same jail with Albanese
while the latter was waiting trial. He
testified Albanese approached him in
jail to ask if he knew of anybody who
could take care of some people.

“Did he tell you who he wanted taken
care of?” Cloro asked.

“He said he wanted his brother and
some guy in business up in Wisconsin

__. killed,” the witness stated. “He told me

ae

SE SE SOT

See.

iH
i

{

there wou
twice thai
done.”
“Did he
else?” Flor
The wit
had asked
letters whe
ters were
mother, un
family bus
banese ga\
to write.

The lette
racy to fra:
murder of }
Mike used
set up Ch:
stated. It re
to throw su
“Mike almo
make hims:

The juro:
on Tuesda
turned in :
finding Ch:
counts and
degree.

Followin;

Sex NV

learned thi
girls havin
and mothe
immediate
Landgraf,
details, but
them, rema
rest of the 1
such a cond
think it ad:
In the me
of Bayreut!
streets, par
dens, searc
raped and
graf. They f
crime had t
ambulance ;
massive me
crime was
could still t
Apparent
sons were t:
tioned, but :
innocence.
The murd
was only ex
been trans
and Assist:
Hauert had
home on t
examine it
and Gabi hz
had reporte
alive when
tually been
had been de


ousand dollars
vonder he was
oisoning case.

death.

) be the result of
forever had the
ceived an anony-
ders of the family

tests on his body
‘nic in his blood
for the bodies of
c tests were also
come sick before
2xpected.,

drome, or arsenic
lickey’’ Babcox,
sa ‘‘very ill man.
, with a cane right

ambert and Mrs.
ingernails. All of
»ver a long period
yse given’’ at the

sed their findings
ges of an Agatha
d be the responsi-
id his men to find
oisoner of fiction

stigation into the
jat in the months
hanging her will.
n from sharing in
daughter, Marion
nly, the Lambert

passed on to her

would soon find
‘w subdivision of
rb where he lived
bors said that the

| $175,000.

a f When the homicide probers leame the € i e-his
e M. J. Albanese had made his “ek yeaold sot vite -présidént of Allie

‘Die Casting, their interest in him soared.
background revealed that in 1965, ‘Charles Albanese had been'c
victed of pulling off a Chicago home invasion and W as sentence 4
‘five years probation. » ri eke : fa

’ ‘Along with another man, ‘atbandes ented a North Side ‘hom

4 after identifying himself as a police detective, and then, menaced the

about $100 between them.’

automobiles. ve
e “He was something of a loner,”

clubs or fraternal organizations in Spring Grove.”*, =) 2.
The windfall. resulting from the death of his ‘wife! s mother and

Albanese. Although he was deeply in-debt at the pot August, »

child support to an ex-wife and another $2, 500. for nee wth of ©
mortgage payments. Reportedly, Albanese’s ex-wife had been

six months behind in his child support and alimony. payments:

form of a postdated check which was mailed on August 4 4th, two days °

Albanese saying that he had post-dated the check. to, August: 15th.
because he expected to deposit the required funds by’ August 13th.

ly charged with the murders of his father, his mother-in-law and his °
wife’s grandmother and the attempted murder of his brother. He had.

time before placing him under arrest.

community.’’
Following his arrest, Charles Albanese was brought to the McHen-
ry County Jail in Woodstock, Illinois, in lieu of $2,500,000 bond, for

Waukegan, a Lake County judge ordered him held without bond on
charges of murdering his mother-in-law and her mother.

At a Thursday press conference, Coroner Babcox, who had been
Lake County sheriff before the start of his 20-year stint as coroner,

in, such a cold-blooded, calculated, sordid destruction of two fami-
lies.

aie Tox if

residents with a pistol,”’ an officer shee hee came can ith |
trious man who enjoyed quiet evenings at home with his’ wife and
children and who also had a well-developed taste for ‘luxurious -

one associate said’ He rarely ©
mixed with other businessmen around here and didn’ t be ng to any”

grandmother could not have come at.a better time: for. ‘Charles ’

4 attempting to have him held in contempt of court and: jailed. for falling ° .
The overdue payment, police would learn, had been made in the:

’ before Mary Lambert’s death. Attached to it had been a letter from.

On Thursday, November 19, 1981, Charles Albanese was formal-

been picked up late on Wednesday night by a combined task fotce of :
McHenry and Lake County investigators who grilled him for: a long # Ages

‘“We had to move fast,’’ oné of the homicide probers éxplameas At
“In less than 48 hours, he was leaving for Jamacia with his wife and *
mother and we would be unable to protect the women outside ‘the.

the murder of his father and the attempted murder of his brother. In

told reporters, ‘‘I have never encountered, nor have I been involved °

uae i 7 Se .
‘ : f ee ee, Peal BIE, ¥

A fopsy pefindings: ‘and tonllogical analysis: revealed all three
aths Were the’ result‘of repeated arsenical poisoining.”’  *

Te can’t tell you the hours (the investigators) put in on this case,”’
Shief* Pasenelli said. ‘‘They’d hit brick walls, back up and start
hitting them again.” *-

_Atfirst, he went on, investigators were unwilling to believe that the
three deaths were arsenic poisonings.

i‘ “Everyone,” he explained, ‘‘looked at (Coroner 2» Gigi
with jaundiced eyes.”

* Newsmen learned that police had taken. samples of suspicious
hemicals found in Charles Albanese’s possession and sent, them to

«the Illinois Crime Lab for analysis. The clothing of his alleged victims

“was also being examined for traces of arsenic. Police said they

+ believed Albanese had administered the arsenic in the form of

pooined cookies and other food over a period of several months.
* The following day, McHenry County probers said that Wednes-

ig * day’ § arrest had come to prevent Albanese from flying to Jamacia with

‘his wife and mother. Police said they rushed the arrest rather than risk
‘losing one or both of the women after they got to the Caribbean.

ra

ed

ed,”” a task force. member added.
~ When the flight left O’Hare International Airport in Chicago on

~ schedule at 9:15, Friday morning, there were at least five empty seats
on. board—the three reserved by Albanese’s party and two others

booked by McHenry City Police Detective Patrick Joyce and the chief
deputy McHenry coroner, Marlene Lantz. Jamacian police had been
lerted to assist the American homicide probers when the flight

arrived...
“On: Tuesday, November 24; 1981, a Lake County grand jury

indicted Charles Albanese on three counts of murder. The panel said
cat he began ‘administering poison to Mary Lambert and Marion
~ Moeller i in their Leisure Village home on or about April 1, 1980.

» Chief Circuit Court Judge Robert K. McQueen set bond of

82, million for Albanese. el
: ¢ Federal Bureau of Investigation, meanwhile, agreed to a
Hetues to use its Washington Lab for examination of arsenic samples

- removed from the victims’ bodies. Prosecutors said they were hopeful

that the Bureau’s ‘scientists would be able to match the arsenic with
specimens from an Elkhorn, Wisconsin, firm supplied to the Allied

“Die Casting Corp.

Charles Albanese pleaded innocent to the murder charges at his

_ arraignment in Lake County Circuit Court.on Monday, November
_-30th. That same day, in McHenry County, a grand jury indicted him

‘on two murder counts stemming from the death of his father and Mary
_ Lambert and an additional count for,the attempted murder of his

- brother. In addition, Albanese was hit with a single count of felony
« theft for allegedly selling 88,000 pounds of zinc alloy ingots to

another firm and pocketing $31,000 from the sale.
Sources close to the case said that Albanese, who made some
; (Continued on page 48)

‘We: -certainly. would have had egg on our face if one of them had |;

eaeipatiinis

over his
il times a

ed to put
vod, even
J?” Floro

ted to the:
it would

a conclu-. _

»stion. He

vidence a
as having
ffice of the
1 as a wit-
orprint ex-
1ois Police

1 found the
ieft middle
d his right

. of the jar.
jrew Prin-
ie laborat-
nination of
;s of arsenic.
s in which
i. The ther-

as Michael
npletely re-
of arsenic
iat he had
scrap metal
ad had kept
said he also
ld company
ertain dis-
1 payments.
planned to
and theft.
ised primar-
.cter witnes-
>» defendant.

Charles 'Al-
he had been
s his brother
her and then
to throw sus-

this was the
yut,” Charles
een too obvi

With me out
her died he’d
iimself.”
ry of Charles
prise witness
elf as having
vith Albanese
ting trial. He
iched him in
anybody who
eople.
wanted taken

s brother and
in Wisconsin

i. “He told me

ye Nes

there would be $10,000 up, front and

twice that much when the job was
done

id he contact you about anything
else?” Floro asked. ‘

The witness related that Albanese.
had asked him to write and mail four |

letters when he got out of jail. The let-

_ters were to be sent to Albanese’s

mother, uncle, wife and to the Albanese
family business. The witness said Al-
banese gave him a copy of what he was
to write.

The letters stated there was a conspi-

racy to frame Charles Albanese for the.

murder of his father. “Charles’ brother
Mike used me to kill those people and

set up Charles,” the unsigned letter

stated. It related Mike had taken poison!
to throw suspicion away from himself.
“Mike almost took too much by trying to

make himself look like a victim.”

The jurors were sent out to deliberate
on Tuesday, May 18, 1982. They re-
turned in seven hours with a verdict
finding Charles Albanese guilty on all
counts and the murders in the first-
degree.

Following arguments in which the

“prosecution isked for the death pe
“and the defense pleaded for imprison: |.
‘ment, Judge Cowlin sent the jurors back

sitio
asked Bo vkei pencaty

on Wednesday to deliberate the penalty.

It, took them only two-and-one-half |.

hours to reach an agreement that
Charles Albanese should be put to death

in the electric chair, f

Questioned later by ‘reporters about
the death penalty verdict, one juror was

quoted assaying, “It’s one thing to think |

about the death penalty in abstraction
and another in reality. We knew we
were making the ultimate decision. It
was tough we didn’t waver. Ulti-
mately each of us has to face the
consequences of our behavior.”
Prosecutor Floro said he was satisfied
but not surprised by the verdicts. “At no
time did we have anyone'say I saw him
do this,” Floro said. “But we certainly
had a lot of circumstantial evidence.
The investigators deserve a lot of credit.
And, of course, if it hadn’t been for
Coroners Babcox and Querhammer, we
might not have ever had a case.”
By law, all cases in which the death
penalty is imposed! must be reviewed
prior to setting the date for-execution.

tet |

Sex Murder an Accident?

learned. this a half hour later, the two
girls having run to fetch their father
and mother and all four having come
immediately to the hospital. Mrs.
Landgraf, who had been told none of the
details, but who could very well imagine
them, remained at the hospital for the
rest of the night, as her nerves were in
such a condition that the doctors did not
think it advisable to let her go home.

In the meantime, roughly 80 percent
of Bayreuth’s police force was on the
streets, particularly in the castle gar-
dens, searching for the man who had
raped and murdered Hannelore Land-
graf. They had been informed that a sex
crime had taken place even before the
ambulance arrived at the hospital anda
massive manhunt was underway. The
crime was very recent. The murderer
could still be in the area.

Apparently, he was not. Some 12 per-
sons were taken into custody and ques-
‘tioned, but all very quickly proved their
innocence.

The murderer’s apparent easy escape
was only explained when the body had
been transferred to the police morgue
and Assistant Coroner Dr. Guenther
Hauert had had time to drive in from his
home on the outskirts of town to
examine it. He reported that Andrea
and Gabi had been mistaken when they
had reported that their sister was still
alive when they found her. She had ac-
tually been killed at around 7:30 and
had been dead for over three hours be-

(from page 8)

fore the police search for her murderer
began. nos

Otherwise, the doctor said that she
had been brutally raped with maximum
use of violence and that the rapist had
achieved orgasm inside her body. A suf-
ficient amount of his sperm was reco-
vered to establish his blood group which
might be useful in the event of the ar-
rest of a suspect later, on, although it
was, of course, no positive identifica-
tion. Lite

The cause of death had been manual
strangulation and, from the marks on

the girl’s throat, the doctor deduced that |

the killer’s hands were somewhat larger
than the average. The strangulation
had been sustained over a considerable
period of time, possibly throughout the
entire course of the rape, and the hyoid
bone at the base of the throat was bro-
ken. There were some indications that
the girl had fought with her attacker,
but she had, apparently, not managed to
mark him, for there were no traces of
skin or hair underneath the fingernails
of the corpse. :

It was nearly midnight by the time
that this information was relayed to In-
spector Wilhelm Prinz, senior investi-
gations officer of the Beyreuth Police
Department of Criminal Investigations,
and, by this time, he had every man at
his disposal out in the area looking for
witnesses or anything else that might
provide a lead to the identity of the
murderer.

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ALBANESE v. McGINNIS 555
Cite as 823 F.Supp. 521 (N.D.II. 1993)

the Illinois Court had a second chance to
review the evidence in Albanese III, where
Albanese argued that attorney Kelly was in-
effective for failing to point out discrepancies
in the State’s financial exhibits. Once again
the Court found the alleged errors to be
immaterial: “there is no dispute that as a
result of the deaths the defendant experi-
enced financial gains that eased a financially
tight situation, and moving numbers from
one side of the ledger to another could not
have altered that fact.” Albanese III, 125
IlDec. at 841, 531 N.E.2d at 20. Second,
Albanese has never put forth credible evi-
dence seriously challenging the precarious-
ness of his financial condition. At the post
conviction hearing, where Albanese’s ac-
counting expert, Terry Hall, stated that Al-
banese was in “terrific” financial condition,
the judge dismissed her testimony as unper-

- guasive. (Post Conviction R. vol. II at 285).

Finally, there can be no reason for this court
to revisit an issue satisfactorily resolved in
the state courts where Albanese had access
to all of the underlying financial documenta-
tion in advance of his trials. Although Alba-
nese has presented this argument in a Sup-
plemental Petition together with claims
based on purportedly “new” information, any
inference that the financial claim is sup-
ported by new evidence must be rejected.
In his post conviction appeal, in the context
of an ineffectiveness argument, Albanese as-
serted “there is clearly evidence, available
pretrial, which proves that Charles and Vir-
ginia Albanese were financially stable.” (Pe-
titioner’s Br. in Post Conviction Appeal at
23). Terry Hall based her opinion exclusive-
ly on records available at trial; additionally,
she found Albanese himself to be well-ac-

40.

Claim 10:
Michael Albanese, Jr. testified that on Septem-
ber 8, 1980, November 14, 1980, January 6,
1981, February 4, 1981 and February 27, 198!
he was hospitalized with vomiting and other
symptoms consistent with, arsenic poisoning
(McH R Vol. XIV, p. 24, 25, 30-36, 38, 29).
The state argued that this was part of Charles’
scheme to get control of the family business.
The State had in its control hospital records
that showed Michael’s hospital admissions
were for reasons completely unrelated to ar-
senic poisoning and that directly contradict his
claims of vomiting.

quainted with his business affairs. (Post
Conviction R. vol. VIII at 275-76).

The only “new” allegation contained in
Claim 9 is that the State intentionally mis-
stated Petitioner’s financial status. Albanese
equivocates over what exactly the State is
accused of doing. First he asserts that “this
claim is that the State solicited or allowed
perjured testimony to stand in support of the
conviction.” (Petitioner’s Resp. to Resp. to
Supplemental Pet. at 8). Later, the onus is
shifted to Schaefer: “the testimony of Ru-
dolph Schaeffer [sic] is alleged herein to be
false because he intentionally omitted income
or because the State withheld those records
from him, thus- invalidating his analysis.”
(Id. at 11) (emphasis added). Through these
allegations, Albanese seems to be relying on
a Napue-type theory. As discussed above,
however, Albanese never asserted that theo-
ry in the state courts and so never produced
any evidence of withholding of records or of
solicitation to give false testimony. Instead,
Albanese bases this claim on bare assertions.
For the reasons stated supra at 64-66, the
solicitation of false evidence/allowing false ev-
idence to be introduced aspect of Claim 9 is
procedurally defaulted for failure to present
the issue to the state courts.

The same fate befalls Claims 10 and 11,
also based on Napue v. Illinois.© As Alba-
nese himself makes plain, he is not asserting
that the State violated Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963) with regard to the medical records of
Albanese’s brother Michael: “It is not now,
nor has it ever been alleged, that the State
withheld the hospital records that would have
proven the patent falsity of Michael Alba-
nese, Jr.’S testimony.” (Petitioner’s Mem. in

Claim 11:

The State called Joseph Reichel to testify that
he provided Charles Albanese with a quantity
of arsenic in ‘‘late 1979.” (McHR Vol. XVIII,
p. 325, Lake R.., Pp. 1363). The State had police
reports and a taped interview of Joseph Rei-
chel in its possession which revealed that he
gave the arsenic to Charles Albanese in May or
June of 1980. This information corroborates
Petitioner's explanation that he wanted the ar-
senic to eliminate a rodent or pest problem in
his neighborhood. (Neighbors of Charles Al-
banese did testify to the magnitude of the pest
problem in their neighborhood in the late
Spring of 1980).


556 823 FEDERAL SUPPLEMENT

Sup. of Supplemental Pet. at 11). Instead,
he claims that the State knew Michael’s testi-
mony about having been hospitalized — for
vomiting was false. While in the state
courts, Albanese utilized the discrepancy be-
tween Michael’s testimony and the medical
records of his symptoms to argue that attor-
ney Kelly was ineffective for failing to high-
light the differences, “Richard Kelly did not
impeach the crucial: testimony of Michael A]-
banese. Michael testified that he experi-
enced nausea and stomach problems in Sep-
tember of 1980, when in fact according to
hospital records and medical notes, Michael
was tested because of severe headaches.”
(Petitioner’s Br. in Post Conviction Appeal at
25). There was no hint in the ineffectiveness
argument that the State violated Albanese’s
due process rights by allowing Michael to
testify to feeling nauseous. Albanese cannot
preserve a Fourteenth Amendment claim by

the roundabout method of asserting a Sixth

Amendment challenge to counsel. Nothing
in Albanese’s argument about Kelly’s perfor-
mance would have “raised the red flag” of a
constitutional violation based on Napue.*!
See Verdin v, O'Leary, 972 F2d at 1475.

Claim 11 was also presented to the state
courts as an ineffective assistance of counsel
claim, rather than a due process claim for the
State’s knowing presentation of false evi-
dence. Joseph Reichel testified that he gave
a quantity of arsenic to Albanese in late 1979.
(McHenry R. vol. XXX at 315-17). The
State and Albanese had access to police
statements given by Reichel which placed the
date of arsenic delivery in the spring of 1980.
(Petitioner's Br. in Post Conviction Appeal at
21) (material with which to impeach Reichel
was “readily available”), Albanese argued
that Kelly’s failure to use the police reports
to impeach Reichel as to the date of arsenic
delivery constituted ineffective assistance.‘2
(/d.). Once again, Albanese’s arguments to
the state courts did not ever intimate that

41. If this court’s review were not foreclosed,
Albanese would have to present new evidence to
support the Napue claim. The fact that Michael
testified to feeling nauseous while his records
spoke of headaches is a far cry from establishing
that Albanese’s conviction was based, as he
claims, on “perjury and other patently false evi-
dence.”

the State, rather than Kelly, was the source
of a constitutional violation. Because this
claim was never presented to the state
courts, review by this court is precluded.

V. Conclusion.

After careful consideration of Claims 1
through 12, this court has not found that the
constitutional rights of Charles Albanese
were violated in the guilt phase of either the
McHenry or Lake County trial. His convic-
tions, therefore, will not be disturbed. The
court now turns to Albanese’s claims of con-
Stitutional error in the Sentencing phases of
his ‘trials.

Part Two: Sentence Claims.

After the McHenry County jury found Al-
banese guilty, a Separate sentencing hearing
was conducted in accordance with the proce-
dures set forth in the Illinois death penalty
statute, Ill-Rev.Stat. ch. 38, 19-1(d), The
same jury which convicted Albanese sen-
tenced him to death. In the Lake County
trial, Albanese waived a jury for sentencing,
and the death penalty hearing was conducted
before the trial judge, who imposed the death
Sentence. In Claims 13 through 19, Albanese
contests the constitutionality of those two
death sentences.

Albanese mounts a facial attack on Illinois
death penalty statute (Claims 13(a)-13(f)), as
well as on the procedures followed in his
particular case. These “as applied” claims
are directed solely against the McHenry
County sentence. Albanese argues (1) that
the prosecutor’s closing argument was in-
flammatory and improperly commented on
Albanese’s silence (Claims 14, 19), (2) that
the process of Witherspooning produced a
jury predisposed to impose the death penalty
(Claims 17-18), and (3) that the jury was
incorrectly instructed (Claims 15-16).

42. In closing argument at the Post Conviction
hearing, the State posited that, as a matter of
Strategy, Kelly elected not to use the evidence
that Albanese acquired the arsenic in 1980 be-
cause the 1979 delivery date removed the ele-
ment of immediacy between the acquisition of
arsenic and the deaths. (Post Conviction R. vol.
IX 526).

wee

il

ALBANESE v. McGINNIS 557
Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

I. Facial Attack on Illinois
Death Penalty Statute.

The death penalty statutory scheme in Illi-
nois has been upheld repeatedly by both the
state and federal courts. People ex rel. Car-
ey v. Cousins, T7 Ill.2d 531, 34 Ill.Dec. 137,
397 N.E.2d 809 (1979); People v. Brownell,
79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181
(1980); Silagy v. Peters, 905 F.2d 986 (7th
Cir.1990), cert. denied, 498 U.S. 1110, 111
S.Ct. 1024, 112 L.Ed.2d 1106 (1991);
Williams v. Chrans, 945 F.2d 926 (7th Cir.
1991), cert. denied, —- U.S. ——, 112 S.Ct.
3002, 120 L.Ed.2d 877 (1992). Albanese,
therefore, faces an uphill battle in arguing its
unconstitutionality. As is discussed in detail
below, Albanese is not equal to this chal-
lenge; his claims are either procedurally de-
faulted or deficient on the merits.

{31,32] In Claim 18(a), Albanese argues
that.the death penalty statute is unconstitu-
tional because

It permits unlimited prosecutorial discre-

tion in seeking the death penalty, violating

the doctrine of separation of powers, and a

defendant’s right to due process of law,

resulting in death penalty sentences that

are arbitrary and capricious and are im-

posed in a wanton and freakish manner.

Both of these contentions were rejected in
Silagy v. Peters. As to the separation of
powers argument, Silagy notes that a prose-
cutor’s exercise of discretion under the death
penalty statute does not amount to a “judicial
function.” 905 F.2d at 998, n.5. The prose-
cutor merely initiates the death penalty pro-
ceeding, while the jury or judge, as the case
may be, determines whether to impose the
sentence. This fact also defeats Albanese’s
due process claim, because the prosecutor’s
election to seek the death penalty does not
deprive a defendant of life, liberty or proper-
ty. Id. at 997. Rather, “(t]he deprivation
occurs, if at all, only through the action of the

43. In support of this point, Albanese urged the
Illinois Court to reconsider its decisions in the
following cases which clearly dealt with compar-
ative proportionality review: People v. Brownell,
79 Il.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181
(1980) (‘defendant argues that the Illinois death
penalty statute is defective concerning appellate
review because it does not require a comparison
by this court of all the cases in which the death

judge or jury at the conclusion of the statuto-
rily-mandated sentencing _—ihearing....
[which] provides for all the procedure which
is due under the fourteenth amendment.”
Id. Claim 18(a) is rejected.

The State asserts that Albanese’s next
Claims, 13(b) and 13(c), have been procedur-
ally defaulted because they were never pre-
sented to the Illinois courts. These claims
are that the death penalty statute is uncon-
stitutional because:

It fails to provide proper constitutional
focus on the individual characteristics of a
defendant in having a jury decide the
death penalty issue.

and

It defines as a mitigating factor whether or

_ not a defendant has “no significant history
of prior criminal activity,” which terms are
unconstitutionally vague, indefinite and un-
certain.

In response, Albanese argues that these
claims were presented to the Illinois Su-
preme Court on direct appeal from the Lake
County trial in the form of the following
claim:

The Illinois Death Penalty Act is unconsti-
tutional because it fails to provide suffi-
cient information gathering procedures to
insure adequate appellate review.

(Petitioner’s Br. in Lake Appeal at p. 114).

From the cases cited to the Illinois Court
in support of this point, it is clear that Alba-
nese based his Lake County claim on the
argument that comparative proportionality
review is necessary to insure the constitu-
tionality of death sentences, rather than on
the current arguments.‘ Comparative pro-
portionality review is a process whereby an
appellate court compares a particular defen-
dant’s sentence with sentences imposed for
similar crimes in order to prevent the imposi-
tion of the death penalty in an arbitrary and

sentence is imposed ...’’) and People v. Kubat,
94 Ill.2d 437, 69 Ill.Dec. 30, 60, 447 N.E.2d 247,
277 (1983) (‘‘[dJefendant also urges that the
death sentencing ‘scheme’ is defective because it
fails to provide adequate comparative review
procedures ..."). In addition, Albanese noted
that the United States Supreme Court had grant-
ed certiorari on ‘‘this question” in Pulley v. Har-
ris.

558 823 FEDERAL SUPPLEMENT

disproportionate manner. See Pulley v,
Harris, 465 U.S. 37, 42-44, 104 S.Ct. 871,
875-76, 79 L.Ed.2d 29 (1984). The cases
cited by Albanese in the Lake County appeal
discuss neither “constitutional focus on the
individual characteristics of a defendant,” nor
the adequacy of the mitigating factor ad-
dressing a defendant’s prior criminal history.
In attempting to tie his various claims to-
gether, Albanese rather inelegantly states
“The information gathering procedures re-
quired to insure adequate Appellate review
are those procedures which provide the focus
and direction upon a jury to steer them
towards the proper constitutional issues
which must be considered in making their
decision on the death penalty issue.” (Petj-
tioner’s Resp. to Mot. to Deny Pet. at 26-27),
Seeing no relationship between the Lake
County claim and Claims 13(b) and 13(ce),
Albanese’s explanation notwithstanding, the
court concludes that the claims have been
procedurally defaulted.

Albanese has not attempted to Satisfy the
cause and prejudice requirements of Wain-
wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1977). Such an effort would
be futile in any event. In upholding the
Illinois death penalty statute, the Silagy
court found that it does indeed require the
jury to focus on the individual characteristics
of the defendant:

[A] State’s imposition of the death penalty
does not comport with the guarantees of
the eighth amendment unless the sentenc-
ing authority considers “the character and
record of the individual offender and the
circumstances of the particular of-
fense....” The Illinois Statute’s mandate
that the jury (or judge) consider any miti-
gating and aggravating circumstances re-
garding the individual defendant and the
particular crime serves to ensure that
these eighth amendment rights are ob-
served.

Silagy, 905 F.2d at 998, quoting Woodson v.
North Carolina, 428 U.S. 280, 304, 96 S.Ct.
2978, 2991, 49 L.Ed.2d 944 (1976); see also
Williams v. Chrans, 945 F.2d at 935-36:
People v. Lewis, 88 Ill.2d 129, 144-46, 58
Ill.Dec. 895, 430 N.E.2d 1346 (1981), cert.
denied, 456 U.S. 1011, 102 S.Ct. 2307, 73

L.Ed.2d 1308 (1982) (upholding the adequacy
of the “no significant history of prior criminal
activity” mitigating factor), Albanese cannot
obtain relief from his Sentences based on
Claims 13(b) and 13(¢).

[33] In Claim 13(e), Albanese raises the
issue of comparative proportionality review
in a straightforward manner. The claim fails
on the merits. In Pulley v. Harris, 465 US.
at 43-44, 104 S.Ct. at 875-76, the Supreme
Court held that the constitution does not
invariably require state appellate courts to
conduct comparative proportionality review
before affirming a death sentence. Instead,
such review would only be mandated if the
statutory scheme in question did not incorpo-
rate other sufficient Safeguards against arbi-
trary imposition of the death penalty. The
Illinois death penalty statute is not of that
class: It contains adequate mechanisms to
guard against arbitrariness, rendering com-
parative proportionality review unnecessary.
Silagy, 905 F.2d at 1000 (“we do not believe
that the remainder of the Illinois statute is
lacking in procedural Safeguards so as to
mandate the addition of proportionality re-
view ...”),

The State asserts the bar of procedural
default as to Claim 13(d) in which Albanese
asserts that the death penalty statute is un-
constitutional because

It provides that a jury to impose the death

penalty must determine that “no mitigat-

ing factors exist sufficient to preclude the

Opposition [sic] of the death sentence”,

which such standard is unconstitutionally

vague, indefinite, and uncertain.

Albanese argues that this claim has been
preserved because it was raised on direct
appeal of the McHenry County conviction
and sentence in the following terms:
An instruction which limited the jury’s con-
sideration of mitigating factors to whether
the Defendant had a significant history of
prior criminal activity and whether he
might be rehabilitated or restored to use-
ful citizenship denied [Defendant’s] rights
guaranteed by the eighth and fourteenth
amendments.

(Petitioner’s Br. in McHenry Appeal at 117).

These arguments are directed at different
problems. Claim 13(d) attacks a provision of


old man made a rush for the gun and
stumbled and fell over the old lady. Al-
len had his hands full and had his hand
on the old lady’s throat and his foot on
the old man’s chin.

“About that time, Earl Stark ica: the
younger woman screaming and praying
for the Virgin Mary and he came up.
Allen didn’t tell me what they did with
the old folks, but he told me about ran-
sacking the house. Al! the money they
got was out of a can on a shelf. He didn’t
tell me about assaulting the women or
torturing the man.”

We knew, now, that Peck was not one
of the three killers involved in the New-
ton atrocity except as an accessory by
giving his car key to Stark instead of to
a mysterious bootlegging stranger, as he
had claimed.

But Peck’s lie had given the guilty Earl
Stark ample time for a getaway. Had we
followed Patrolman Goldenstein’s hunch,
we would probably have overtaken the
murderer. But we hadn’t and Ear] Stark,
as this is written, is in hiding somewhere
—a fugitive wanted for murder.

Lynch law, meanwhile, was raising @
threatening head at Robinson, where
Sheriff Sowers had removed his prisoners
for safekeeping. Three hundred enraged
citizens of Newton formed a cavalcade
and descended on that town. The sheriff
at Robinson and his deputies aided by
thirty hastily summoned state policemen,
met them a few miles outside of Robin-
son and persuaded half of them to return
to their homes.

The remainder, however, went on.

Others joined them. The mob milled about
the jail, demanding the prisoners. Depu-
ties and State Police, sub-machine guns
and tear-gas bombs ready, discouraged
them finally.
_ At Springfield, Governor Henry Horner
immediately dispatched Lawrence M. Tay-
lor, Acting Chief of State Highway Police,
to Robinson to take over the situation.

One day, shortly after that, old Ber-
nard Weldam and his niece, Anna Schrad-
er, both somewhat recovered from the
fiendish attacks upon them, appeared to
look over the suspects in the dragnet.

Shelby, Allen, and

Peck were brought be- ee

fore them.

“This is the man that
tied you up, ain’t it,
Annie?” Bernard Wel-
dam asked his niece.
The man he indicated
was Harry Shelby.

“'N7 ASS, Onkle, dat is
the man,” she as-
sented brokenly.

“And _ this,” — Wel-
dam peered at Johnny
Allen sharply—‘is the
man who knocked
down Mamma, An-
nie?”

“Yass, Onkle.”

Allen flinched as the
words of identification
came through her lips
—lips still bruised and
purple from the sav-
agery of that attack.

Weldam looked at
Peck.

“This man,” he said
positively, “I never
saw before.”

Miss Schrader agreed.
Peck, she said, had not
been at their house
that fatal night. Sher-
iff Sowers was stunned
by the information.
Too late, the realiza-
tion came that Stark,

A rogues’ gallery picture of Harold

Peck taken by the police right after

his arrest in connection with the
Vermilion County outrages

True Detective Mysteries

not Peck, had been the third member of
the murderous trio.

Both Allen and Shelby confessed to the
murder of Mrs. Mary Schrader. Both de-
nied, however, that the women had been
assaulted. True to gang code never to rat
on a pal, both also swore that Peck was
innocent; that he thought the car was
being borrowed for a “date.”

Shelby and Allen tried to prote:
by asserting that the third man hi
alt crime had been a stranger named

uae.

ETHODICALLY, now, we set about

the task of connecting the Stark
Shelby, Allen and Peck gang with many of
the armed robberics that had baffled our
department. Within a week we had defi-
nitely linked them to nearly a score of
hold-ups. These, however, were only a
few of the many crimes committed by
the bandit quartette within a period of
one year. When we finished working on
this phase of the investigation, there were
few unsolved robberies in Vermilion
County left in our_files. '

Chief Freeman, Captain Johnson, Lieu-
tenant Bireline, Sheriff Ward, Chief Depu-
ty Ryan, Detectives Newman, Cowan,
Morrissey and myself, and Patrolman
Goldenstein worked night and day to
gather these facts, but the results more
than justified the hard work.

Shelby, in jail, now threw a bombsell
into the business of investigations by a
show of defiant bravado.

“You stuck that Newton job on me,
didn’t you?” he demanded of Deputy
Ryan one day. “And now you're trying
to hook me for the Cozad murder. Well,
if youre so damned smart,” he rasped,
“why don’t you try to solve the other
three. because, altogether, there have been
five murders.”

When Ryan told me this, I, too, was
astonished. I knew they were a tough

ang. But I thought that their robberies
had meant death to only two persons:
Newton Cozad and Mrs. Mary Schrader.
Now, if Shelby were not lying, we were
three murders short.

An imaginative reporter, hearing of Shel-
by’s boast, termed him
“Spawn of Satan” and
referred .to the entire
gang as the “Satyrs of
the Shacks.”

I went through our
files of unsolved mur-
ders. There were nine
of them. I kept in
mind the methods used
in the murder of_ Mrs.
Schrader and of Cozad
and easily eliminated
six of the crimes. The
remaining three crimes,
in execution, had been
almost identical with
the murders of Cozad
and Mrs. Schrader. I
decided to go to Shelby
and try to get from
him confessions that
would clear up the
three unsolved crimes
T felt convinced he had
committed. | :

In the meantime,
however, something
else happened. Au-

thorities at Robinson
learned that Victor
Wright, an ex-convict
had been linked with
the Shelby gang by one
of the gang’s robbery
victims. He was lo-
cated, hauled away to

jail and put through a
stiff questioning.

95

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ae a ae See as

96

“IT don’t know a dammed thing about the
Shelby gang and you haven’t a thing on
me,” was all he would tell them. And he
was right. They had nothing on him.
Reluctantly, they finally released him,

His temper, never too cool, had passed
the boiling point.

“You guys can’t treat me that way and
getaway with it.’ Wright) threatened.
“Tm coming back here. And when 1 do,
I’m going to gel me a cop.”

They sent him away and forgot about
it. An hour dater, Wright marehed) back
down the street toward the jail with a
shotgun in his hands.

State Highway Officer Porter, one of
the men present at the questioning, met
him near the jak Wright) brought the
gun up, pointed it) squarely at Porter's
heart.”

“T told you—" he reminded Porter, “I
Was going to gel me a cop. And you'll
dooas well as any.”

Porter remained rooted to the spot.
He knew that one move on his part and
the crazed conviet would shoot, Bravely,
Porter squared his shoulders to receive the
shotgun charge as Wright's finger tightened
on the trigger.

ON CLARIX, another state officer,

standing a few feet away, dropped his
hand to the butt of his serviee revolver,
brought it into position and. fired) from
the hip. The shot struck Wright in the
abdomen. He dropped the shotgun,
grabbed his stomach, wheeled completely
around and hit the sidewalk.

“God. Don.” Porter muttered, “that was
close.”

Wright died a few dave later,

With confessions in the Schrader ease al-
ready made, we wanted to clinch our own
murder case—the murder of Newton Co-
zad. Shoviff Ward, Deputy Ryan, Captain
Johnson and Detectives Newman and
Morrissey drove to Newton for this pur-
pose. In Johnson's breast pocket was
the statement made by the married wo-
man who had been » close friend of
Johnny Allen,

With it. Allen could be told how Cozad
and Mrs, Schrader had been murdered.
He could then be told that his com-
panion, Shelby, had confessed. In that
way, it was hoped to obtain 2 confes-
sion from Allen,

It’s an old police trick, but a good one.
It worked in this case. Allen was told
exactly how Cozad and Mrs. Schrader had
been murdered.

“Who told you that?” he asked,

“Harry Shelby,” Johnson replied. “He
confessed at Danville this morning.”

The youthful double-killer shrugged.

“Well, if Harry squawked,” he said, “I
eness I might as well, too.”

Stark, he told us, had been with them
on the job, And Peck, to protect. them,
had lied about the loan of the car. That
lined Peck up as an accessory in the mur-
der, After giving us further details con-
cerning the Cozad murder, Allen told us
of a serics of robberies that had been
pulled by the gang.

Peck, he said in a sworn, signed state-
ment, had been actively and directly im-
plicated in several of these robberies,

After that. Allen told us of the Newton
crime.

He said that during the fight in’ the
yard, Anna Schrader had kept praying:
“Jesus, Mary and Joseph be with us on
our way.”

Confronted with Allen's confession the
next morning, Shelby seowled and gritted
his teeth.

“So that little —— squawked, did he?
1 didn’t. think he could keep his damned
mouth shut.”

“Then you won't deny that what

Truc Detective Mysteries

Allen said) was true?” Johnson asked.

“Hell, what’s the use? You’ve got me
cold. Sure, I knoeked off Cozad and the
old woman at Newton.”

I still wanted to clear up the other
three murders which Shelby had admit-
ted and, now that our department’s in-
vestigation had come to an end, I got
busy. I visited Shelby at jail. I took
him candy, fruit and cigarettes. I gave
him spending money. And slowly he
warmed up to me,

“Wash,” he told me, “you've been
preity white to me and I’m going to give
you a break. I’m going to put you on the
inside track, but you've gotta swear to
keep it, out of the papers until ’m con-
vieted.”

I promised and he told me about a man
he had killed twenty years before. I
swung him around to the three particular
crimes I was interested in. He said that
I should wait until they took him back
to Newton and then come to see him. He

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mentioned two of the crimes I was par-
ticularly interested in.

The Grand Jury at Newton failed to
indict Harold Peck as an accessory to the
murder of Mrs. Schrader. The sheriff had
failed to produce the evidence we had
gathered against him. Shelby, Allen and
the fugitive Earl Stark were indicted for
rape, robbery and murder.

Vermilion County authorities indicted
Peck for robbery on two counts. He was
tried on November Ist, 1933. The trial
ended in a jury disagreement. Another
date was set for re-trial.

Another police case against Peck col-
Inpsed when witnesses who had previously
identified Peck positively, later swore that
they could not and would not testify
against him. We just swore.

Peck was indicted and tried on Janu-
ary 8rd, 1934, for the robbery of a grocery
in South Danville. He was acquitted.

As this is written, Peek is in county
jail at’ Danville. He is charged with and
awaiting trial for the robbery of two men
wt Indianola, Ile is likewise awaiting re-
trial on the case that ended in a jury

disagreement. He is under total bond of
ten thousand dollars which, so far, he has
been unable to raise.

Should he be freed on the two cases
here, he will be turned over to Sheriff
Thomas F. Donaldson of Dunklin County,
Missouri, who sent Chief Freeman a bench
warrant for Peck on a robbery case in
Dunklin County. If Peck is convicted
here, the Missouri sheriff will either use
the warrant here or issue another for Peck
and try him after he serves whatever sen-
tence he may get here.

On the morning of October 16th, 1933,
Shelby and Allen went on trial for mur-
der in the half-century-old red brick
court house of Jasper County in the public
square at Newton.

Thomas Jett, who had served twenty-
four years in circuit court—eleven of them
as appellate judge at Ottawa—presided.
State’s Attommey Homer Kasserman, as-
sisted by Omer Lewis, state’s attorney of
Richland County, handled the prosecution,
J. 8. Bradbury, state’s attorney of Craw-
ford County, aided in an advisory capac-
ity. Milo D. Yelvington and George W.
McColley, two Newton lawyers, were
appointed for the defendants.

Bernard Weldam and Anna Schrader,
escorted to court by two state police offi-
cers cach and accompanied by two Cath-
olic priests, told their pitiable stories of
the fiendish atrocity on the night of ‘Tues-
day, August 29th. Dramatically, they
pointed out Shelby and Allen as their at-
tackers. :

The jury, after a few hours of delibera-
tion, returned a verdict of guilty with a
recommendation for the death penalty,
Judge Jett sentenced them to die on the
twenty-second of December.

Allen, as the death sentence was pro-
nounced, broke down and cried. Shelby,
looking at his youthful companion, showed
pity for a fellow-being for the first time.

“Aw, judge,” he pleaded. “It ain’t fair
to the kid. He ain’t got it coming. He
didn’t know we was going to rob the old
man. I don’t care what you do to me.
I'd rather die than go back to the pen,
but don’t make it so hard for the kid.”

UDGE JETT shook his head and

reached for the gavel to adjourn the
hearing. The following day, Suturday, Shel-
by and Allen were moved under heavy
guard to the Southern Illinois Penitentiary
at Menard, Illinois, and placed into the
custody of Warden Joseph E. Regan.

Early on the morning of December
22nd,. 1933, both went to the chair. Shelby
retained his arrogant attitude to the end.
He insisted on singing a song while seated
in the death chair, which he said he had
written himself.

When guards interrupted, by placing his
head in a head clamp, Shelby demanded
peevishly :

“Say, do I get to sing my song, or not?”

Receiving no reply, he finished singing
the song. The six last words Shelby
uttered, while the executioner awaited the
signal to throw the switch were:

“Shoot it to me, damn you!”

Allen’s last statement was a protestation
of innocence.

Perhaps, in that early morning hour
when Harry Shelby and Johnny Allen sat
down to die, a lonely, heart-broken woman
may have knelt in prayer in her humble
home in the wooded countryside east of
Newton, where peace and serenity have
come once more.

And, perhaps, a gray-haired old man
with her may have nodded un under-
standing “Amen!” to the prayer she may
have uttered in those minutes when Shelby
and Allen died:

“Jesus, Mary, and Joseph be with them
on their way!”

developments
On the nigh
the evening shiv
receipts safely
Manager Cha:
Oriental Thea’
Miss Bailey ha
into his autor
home at 75 I
was near mnidn
Two men co
jammed agai
one man was
other a white
Dazed by tl
ing what it w
sin was comy
parked near
on the floor.
him with a gu
to pieces” if }
other drove
sounds of nig
heard the bk
detected the {
fic lights, kne:
cers were all 9
And yet he
help, could ne
The cold, mv
man covering
him that onc
his death wi
voice was ter

RESENTI
was parkec:
dered. A we:
man who had
guns menaced
out of the ca:
the side door
was compelle:
arouse the ja:
William <A.
his task of get
the next dav’
summons and
and recognize:
next instant 1
held in one
strangers hold
his defenseles:
and a harsh v:
be blown to }
Bossin was
closed, then b:
at gun-point t:
where the ele:
Janitor Gibbs
with which hi
light was also
compelled to «
The bandits
they discove:
only about a
small bills an:
all to the las
were ordered
face down.
tioned one 0:
five minutes 1,
we'll blow x«
The theate:
quietly on th.
tant sounds o:

were the fain‘

crackling soun:
building at nig

or were they :

leaden slugs
two defenseles:
faint sound of

tured to turn }


EWTO
reclus:
shack

from an old c
to be a miser &
cached away >
According t
in the Danza!
made the shee
site of the hou
had occupied
death by aif
house 15 year
stated, had re’
from the ruin
comfortable |:
The story
few days whe
ceived word
miles out of
found dead—
Hurryving t
found the sha
in it had bee
floor and the
blood. The
head bashed |
with wire anc
éot. Eis rou
with his own
tered face ha
The farme:
murder said
been worki
Cozad's farn
that Cozad
Thinking he
the neighbo:
found hin m
While the
Coroner Ha
the hody. S
*‘“EGok:!
piece of wi
his neck it’s |
he removed
ugly cut enc
slugged ins:
that wire, \


v

EWTON COZAD was an old
N recluse who lived in a 10-by-8

shack which he had converted
from an old corn crib, He was reputed
to be a miser and to have a small fortune
cached away somewhere in his cabin.

According to a long story about Cozad
in the Danville Times, the recluse had
made the shed over into a home on the
site of the house he and his blind mother
had occupied before she was burned to
death by a fire that had destroyed the
house 15 years before. Cozad, the story
stated, had retrieved some tins of money
from the ruins and had lived a lonely but
comfortable life ever since.

The story had been published but a
few days when, on March 31, 1933, I re-
ceived word from a farmer living five
miles out of town that Cozad had been
found dead—murdered.

Hurrying to the scene of the crime, I
found the shack a shambles, Everything
in it had been torn out of place. The
floor and the walls were splattered with
blood. The body of Newt Cozad, his
head bashed in, his feet and hands bound
with wire and leather straps, lay against a
cot, His rough farm clothing was soaked
with his own blood, and his cruelly bat-
tered face had turned a ghastly black.

The farmer who had notified me of the
murder said that he and his helper had
heen working in- the field adjoining
Cozad’s farm that morning and noticed
that Cozad was not around the shack.
Thinking he might be sick and need help,
the neighbor went. to investigate, and
found him murdered.

While the neighbor was telling me this,
Coroner Harry George was examining
the body. Suddenly he let out a gasp:

“Look! The man was strangled by a
piece of wire twisted so tightly around
his neck it’s buried in the flesh,” Gingerly
he removed the wire which left a deep,
ugly cut encircling the neck. “He was
slugged insensible, then garroted with
that wire. What an awful thing to do to
’ an old man,” he muttered.
“The rats who did this de-
es serve the chair—a little ata
time !”

“Well, I'll see that they get
it,” T pledged.

Meanwhile a systematic
search of the shack was

By

eng “age “Wek

f made ig ae

OTERO Te ete
Pe ited KSAT i.

Beaten, strangled and trussed $4 4 ae C
with wire, the body (above) +4: WN cn. pes
of Newton Cozad, a re- 4
utedly wealthy recluse, was
‘ound by neighbors. Col. F.
W. Ward (right) former
sheriff of Vermilion county,
Ill., obtained the first con-
fession. from the horror-
Col. Ward. is co-

Col. F. W. WARD

Former Sheriff of Vermilion Co., Ilt.

told to DUN SLOAN


NEWION, qj ‘LINOIS,

FRIDAY, SEPTEMBER 8, 1988

PUBLISHED BVERY TU aSDAY AND FRIDAY

ville authoritie
way poliv

Schrader hanie..
Victor Wright

in describing’

Schrader: home,,,

2nd ‘Allen’

ture G

Stark had: debt’

aR EA hee

Fart Stark of Westville Wanted: 2s
the Third ran in. Torture Gang
Earl Stark, of “Westville: is: being

sought asthe’ missing: member of thal

trio of! bandits. who: held up. end .ter-
tured, Mxs,, Mary. Schrader, ner aged
prother’ Bernard’ Weldans. ad:

daughter Miss: Mary: Schrad
home near the: St Peter scheol morth-

east of ‘Wewton last: Tuesday: aight. a,

week ago, inflicting such injuries on}

Mrs, Schrader’ that ‘ahe. diedtwenty-

four hours later.,

extending over the whole: United

States is. being: mada .fo

“under. the -dine
M. Taylor. of Springfield, a
In his: confessions: Allen sas
Peck knew what: the..car WA a],
used for‘and:that he had ace mpanied |:
them. gn -nlimeroug--other.
although he’ wag not preses
He :

questioned ‘last ‘eriday
nection, with..the. wag z
Jater shot. Pera i eniay Dor

claimed: accompanied’ thent!:

directly. oppasite from tha
pnt which closely fitted,tha:
Because at! this fact’ he:

ens of": Dnurders ~ putgiarie

Stark: was. named aq the thir
py John Allen. of” Danville,’
aight, when, Net malian sount
and State's Attorney Home:
man of this-city questioned: lin: abow
a tip the former had’ ohta

eYSODS whio gave th

id B apo
‘alle for be nurder o£ Mr

Ser,
‘at their

5 3c

A relentless, search

hheries, |

eying :

that;

threatening, “
authorities i

hae send hrather k

y

THIRD: SUSPECT NOW: KNOWN:

Wart Stark of Westville. Wanted as
the Third Mar ia pee Gang ”
(Continued from Front Page)
gatehel in the cabin and the ‘pacitets
of the aged man as he was lying un-
eunselons s the bed. Before
leaving the cabin, Allen added, they
placed the unconscious "man in the.

an the morning. of March 41.
“Wa phen drove back to liarry’s
quother’s home in Tilton anid as Har-

ry wag covercd alt over with blood],

he changed clothes.
“Before the Conrad” job we pulled

‘one im Missourt--some place south of

tape Girardeau and near Dexter.

Shelby, Teck, Stark and myself were"

an this job. Tt was a farm house job.
There were an old man, an old woman
and 4 boy in the house when we en-
tered it. We robbed them of $50,
which was split among us: :

“On our way back to Danville tr om
thig job.our car broke down .and we
abandoned it at McClure. Besides
‘he money we got at this farm house,
we gtole a revolver, a shotgun and a
rifle.’ We threw the shotgun and
ritle away as wo didn’t want to be

scer carrying them when we hiked,

to aw Lown,

“ater the Cozad robbery and kill-:
wg our next job was the holdup of
the M yers combination store und ‘resk-
dence on Seventh street in South Dan-

ville. Peck and 1 went in and 1 ree

cognized some of the people in. the

place, Peck also. knew. some of them, |

and fearing that he would ba recog
nized, ran out. of the place. I grabbed

21 vents from a cash drawer and beat H

jt like he--—-—.

“Our next and last.job was the one.

pulled at the Weldam home near
Newton... Shelby was tipped off to it
while he was in the penitentiary.”

From here on the second confession/

by Allen is virtually the same ag that
made by him on the day following’
his arrest in Danville, He told of the

trip from Danville; te Newton. in}

Peck’s car, of spending Monday night
along the roadside, and of locating
ithe Weldam home the following day.
He described the fight. made by the
aged man and women in the yard

before they were overpowered and}

forced to enter their home, where
they were slugged and attacked, +

sition lus body was in when fomid|

ling ot her ‘broth
told State’,

i levicks.

story, Like Allen,’ he denied’. that! §
Peck was along, in fact stating that | i
he barely knew the latter. He also] iz
said that the third man was known
to him only as "Bud." While he ad-}]
mitted taking’ part In the planning of | i
the rebbery and its execution, hel]
deuies criminally attacking Mrs.
Schrader or Miss ‘Anna and torturing
all three. His answers are not con-
sidered entirely satisfactory and fur-
ther answers are being sought. He
ig generaly considered the ringlender
)aad his confession was. more or, less:
jimexpected. He has a criminal record,t
being out on. parole now, and was/#
expected to be defiant to the end. He}
was taken to Danville, Friday night,
and is still in jail there. :
Following their arrest. Thursday
afternoon at Danville by Sheriff Saw-
ers, the three. men were brought to
‘Robinson and lodged: in jail because
Of fear of mob: vinlence if they were |
jtaken to Newton, Since theu they}
have been under heavy guard of state|
‘police, under ‘orders of Governor
Henry Horner, who has assigned
Chie( Lawrence Taylor. of the highway |}
police, and the head of the departs)
ment of criminal investigation io the:
ease.. Things appear quiet at Nowton'}
but the danger of mobs organizing, tof
lynth the men iy ever present. Feel-}:
ing is running high, with many ask-}
ing the question, “Why should Jas+}.
per county spend $5,000: to $10,000) ta]
try these men, when they could’ bed:
hung from a tree?” e ee,
' Stories about mobs . forming and) @
heing turned back by officerg-are u-
true. At no time, so far as known,’
have any actual mobs been. dispersed,
but’ the authorities ‘are maintaining |.
constant vigilence. to prevent: trouble,
Weldam, Mrs. Schrader and Miss
Schrader. were accosted. first in. the}
yard of their home. just’ about;. sun-
down, Tuesday. Two men fitst ‘came
through their yard: and: inquited... if [iy
they could camp at the. Sti. Peter) |
school over night... Seeing no others |
about, they drew revolvers. and de- |
manded $20,000. Shortly. after. this)
they were joined by 4 third man. - On
being told there was uo mofiey about}
the premises, the three were forced) §
by the bandits: to, enter’ the . house} fae
where they were clubbed. and beaten} }
with an iron bar, Weldam waa. bound
hand and foat ima ehair and: then
tortured, the bandits applying lighted.
matches to his bare feet, “* 8
“The three men. burst into our home
Tuesday, night,” Miss Schrader has/
related. | “They” demanded a large
amount of money they thought.we.hbad |||
fhidden. Onc of the mien stepped up
to-my aged uncle and‘hit: him, a cruel
blow with his closed fist. . They peeled
off his socks and: applied, lighted
matches to. the hottoms of his’ féet
until he screamed out in pain. ‘They |

struck him with an Ire bar, ° me
“Then' one of the met. approached
me. He hit me with his’ fist. “They
threw me on my bed and wired: down |
my wrists and ankles. | They: also
passed’ a wire abowt my necii It ‘wag
bailing wire and it cut my: flesh, 1
was assaulted four'times: so
“Hoping to escape further punish-.
ment I had acted’ as.-though I hadlf
lost consciousness: when I was first |]
struck. J heard one of‘the bandits go.
into the next room’ where my aged |{
mother was. He said, ‘Well, we've:
killed your daughter” I trembled '
when one of the men in the room!


by Jonn Alien Or LBSS VILEE,, 7 Eaamnony EY Gy Aue Is Virluairy Lot Salle as Wal fess crimes.
aight, when Vermilion vounty piticers}: | inade by him on the day following His: confession: om the
and State’s Attorney Homer —— L* his arrest in Danville. He told of the foliowy: i. oe
eees oto seki , ‘ ‘ a Be trip o ; ; in aad 5 aneret Sheng Tee
man of this-eity questioned. him abouty trip from Danville. tw Newton Tn regardy. £
4 tip the former had obtained. that Peck’s car, of spending Monday night case in Jasper count , Melson Bogar
vark had: been’ threatening to “get along the roadside, and of locating BY. want to make: B Obateealey “that: >

to do With

i nergons who gave, the authorities /, the Weldam home the following day.
~- ding. to: the: arrest | ‘He described the fight made by the

E fall of 1932.
. Wright. (the. 1

«he information lea othe arrest )
af Harry Shelby: of} 'Tilteny: Alles. and §
Harold Peek ot Indjandpolls;and Dane!
‘ie for the nnurder of Mrs, Sphrader)
sad the tovture of het aged kere d
and daughter. They: wet¢.( arEester’)
in’ Thursday at Danville by Sherttt!
CM. Sowers and have’ beer, grilled:
onstantly: siee, <0 ERE ee
consien said the Weldam | jeb waa
tipped off to Shelby: by a:Jasper' coun”
77 man..serving & Sentence — with:
Shelby in the Southern Iilinois;'peni~
tentiary.. ‘This ‘man, Mr. Kasserman
anys, will be taken into custady. £:
cup be located, :

© was: on was’

%
Ke,

UR ea ae see v

ago according to the officers. ai
“The next job was also in the fall
of the same year. Jt was at a farm
house just this side of Indianola—
they were some people by the name
of Cope and Roberis. Harry, Warl
Stark. and another man-- he lives in
Danville but I can’t recall his name
--pulled this job. We got $59.
“Our next job wags the Cozad rob-
pery and killing. Harry Shelby and
I pulled that job. Harry borrowed a&
car early in the evening.~I think it
was on Monday or Tuesday —-and af-
ter dark we drove to the old man’s

f i about a month},
taken. Layman died a

(Cozad’s) home and parked the ma-

chine an the west side of the road, |

some distance from the cabin and
neaded toward town.”

Allen's confession of the killing of
the aged recluse differs but little, and
in no essential points, from: that made
py Shelby. He described the terrific
dght between Shelby and Cozad, and
his search of the cabin for money the
recluse was supposed to have hidden.

“The old man put up an awful
fight and Harry had to ‘slug him with
ais gun to keep from being: dknycked’
out. Fhey fell across the bed during
the fight, and the gid man was get-
ting the best of Harry. until, the lat-
ter begun beating him over the head
with the gun. I tied the cid man’s
feet with a strap I jerked off the

of’ said ering and’ cone

wall,” Aven continued. ;

aged man and women in the yard
before they were overpowered and
forced to enter their home, where
they were slugged and attacked. = :.
“The old. lady attempted to stick
2 spading fork into us, and Harry |
ikmocked here down. Weldam made
a rush for him and fell over the body
ot his sister,” Allen said.
Anen described Stark, sought sirgy
his first confession as the third uégn
in the torture slaying. of Mrs. Sckivad- |}:
wt, as being 27 years old, fiver feet,
three inches till and. weighing 130
pounds. He has light, thin hair and
. ght complexion. His home, Allen
‘wold the officers. is at 47 South Wash-
ington avenue, Westville. ‘This de-
seription has been mailed or. tele-
phoned to muay dities and -towns}
within a radius of nearly one thous-
and miles of Danville. It will be sent
out to ather cities as rapidly as the
vards can be printed
_ The. coroner's inquest was conclud-
ed Tuesday afternoon after being ad-
jJourned twice. The jury, R. & Yager,
foreman, Guy Kinsel, Frank Bowers;
‘Harry Dhom, Ray Yager and. Louis
‘cerner, were first impaneled by Dr.
J. W. Hutton, coroner, last Thurs:
day. At that time they heard the:
testimony of Miss Anma Schrader,
Bernard Weldam, Mrs. Mary Yager
and Mrs. Tina Hippler. “Adjourn-
ment was then taken to Saturday af-
lernoon and finally to, Tuesday after-
noon when. the inquest was. concluded}
with the jury recommending that. the |:
three men be held:.to the grand juryuil,
The verdicL was as. follows: “Mrs.
Mary Schrader came to her death on};
the thirty-first day of August, A. Du!
1933, by reason of a concussion of}
the brain, caused by being beaten. by
John Allen and Harry Shelby and one
John Doe, and by. shock caused from
being criminally attacked by ‘John}
.Allen, Harry Shelby and John Doe;
sand we recommend that the coroner
apprehend and commit the said, John
zien, Harry Shelby and John Doe. to
the county jail of Jasper county, Illi-
nois, there to remain. until discharged

meee cS due: course:.of, aw Wee
| Wd, that Harold a ak mvieane:
dithe sam

V1 4

Sp rm

‘;Dessed by Mr. Kasserman:

do not knew e
aay them,
erteky., - I

Bs Bognra's F
fellows got out, of thats

A
i. pat,
mae pu

pan.

‘Shook down,
Sead some. "g
| don’t know how. mx

‘of an old clock they g

gold, pieces, then they’ found some
more money in something ‘on: the floor.

“All the time they were’ shaking

down I was trying to stare them (the ©
Bogards) into telling ‘where. they. had...
their money hid. I ‘think the. last. ©
[thing they found, was..a, $50: Liberty
ibond. Altogether: we got $500: While
‘We were shaking down;:a..car from
the dance’ drove past my cat and it
‘Scared one Of the boys, andi he wanted...
ta go so we tied their Feet and their.

hands with some shoe: Strings, and.

taped them over their mouths, (Here. -

he. lavyhed about how funny’ Mr. Boe.

gard looked with the Jeese’ ends of...
the.adhésive tape hanging: from his). |
d

“mouth: ag the nervous bandit tried to.
gag him.) oe eee
“We drove down. there sin. an Bs- .
Sex coach which I belléve was a 1908"
model. I left this auto.“in. McClure. :

in’ the lower part of tha radiator. Tk ©

'}was just getting dark when: awe. are

rived there (Bogard’s}.I- don’t ro-

|Meniber the éxact date. The Gonfes- °°
‘/sion was’ signed . by. Shelby ‘and’ wit-

Qo. M
lg

ay.

Taylor, chief ot. the-‘st
Police, |. “ae

Mrs. Ora Bartley: of ‘Ghicgzo'- is
| spending her’vacation atRoge-Hill,

Mr. and Mrs, Marion “gchetiibauer,

theé--case, and knew nothing: of PK:

in & garage: with a ‘bustad:piston and® ~~
a hole-in. the cylinder,and a’ hole cut.»


TWO SUSPECTS CONFESSED

‘Rar gareeeae ua Err ce
Shelby and Allen Admit Participation
in Schrader Torture Murder

(Continued from b'ront Pago)
officers had come to the conclusion
that he had either driven the car to
the Schrader home and had sat out-
side throughout the four hours ‘the
bandits were inside, or that he had
loaned the car to.someone whom he
Was. protecting, for his denials of par-
ticipation in the revolting details of
the crime bore the ring of truth.
Finally he could hold out no longer
he was protecting, .

Allen suid that after borrowing
Peek’s Ford coupe that he and Shelby
and «a man he knew ooly us ‘Bud’!
drove to Newton because they heard
that Weldam “had lots of dough."
Leaving Danville about 3:00 o’clock
Monday afternoon they came down
Route One .to Robinson, where they
stopped and purchased meat and buns
at a grocery store on the square.
They then drove over towards Newton
and, marie inquiries at a farm house
about where Weldam lived, but were
unable to get accurate information,
and so spent the night at the side of

Weldam place, us
That evening, he said, they went
to the Weldam home and found the

quired if they could spend the. night:

seeing no young. men about, point-
ed guns at Weéldam, his aged. sister,
aud her daughter. Allen said that
Mrs. Schrader had a spading fork in.
her hand, and ‘when he attempted to
take it away from. her, she-:scratched

“kind ot fainty’' he. said, so he carried
her in the house, and: laid: heron: the:
(bed. She sat.on the side of the, bed,
‘he said, while. he searched. the house

for money. The other: twa bandits).
‘were meanwhile holding Miss Schrad-+'

or and Mr. Weldam.

He said that he got the fdan. Wel-|
dam might have hidden his pocket-.

book at the barn, and went out and
searched it. and that the people. were

not injured when he left, but, when].

he returned about. 3 half hour later,
showed signs of being bruised.
Shelby told a’ (somewhat © similar
story. Like. Allen,” he denigd’, that
Peck wag along, in fact stating that
he barely knew the latter. He also
said: that the third man was known
to him only as:"Bud." While he ad-

mitted taking part-in the planning of}:

the robbery and -its  executian, © he
denies criminally attacking Mrs.
Schrader or Miss ‘Anns, and torturing
all three. His answers are not con-
sidered entirely satistactory und fur-
ther answers are being sought. He
ig generally considered the ringleader
)aad his confession. was. more or, less,

unexpected. He has a criminal record,|

being out on. parole now, and was
expected to be defiant to the end. He
was taken to Danville, Friday night,
and is still in jail there. :
Mollowing their arrest. Thursday
|afternoon aft Danville by Sheriff Saw-
lers, the three men were brought to
| Robinson and lodged: in jail because

‘of fear of mob. violence it they were]

(taken toa Newton, Since then they

‘have been under heavy guard of state |.
police, under ‘orders of Governor
Henry Horner, who has assigned
Chie( Lawrence Taylor of the highway

and admitted that Allen was the man:

a country road. They remained there|
most of the day Tuesday, and then.
made further inquiries of a man. they |:
mel. along the gtate roud, locating: the];

three. people outside. First they in-|!

at the school house nearby and ‘them.

him.on the, wrist. She was then].

with me answered; ‘Naw, she isn't
dead; she’s just: playing pesstim.® <>
“They had beaten me with thet!
fists, but I had escaped being beaten.
With the fron bar: They themsat
tacked my mother, trying to find out”
the hiding” place of the money they
thought we bad Biddem They hit her}
in the tace with, their fists. They.
struck her with thé fton bar, .Finally |
they threw her on a bed as they Mad!
done me and trussed her’ ‘up - itt
baling wire just as they had done. with!
me, ‘The assaulted her three: times:.
“They svarghed the: soles: of: i my}
wicle’s feet with lighted matches:!
They beat us—unmercifully. — They
bound my mather and me to our bed!
with bailing wire, They assaulted us
brutally. They've killed my mother:

“They then made a last search: of
the house. When they did. not fad!
the fortune. they had expecthd' to. get
they gave us-all’a last. final’ beating’.
and. left.” hey ee ane


ALBANESE, Charles, white, LI ILS? (McLean) September 20, 1995.

THERE'S NO
SMORING GUN
MURDER BY ARSENIC

If you must poison somebody, arsenic has | .
a lot to recommend it, but it can also | :
be a one-way ticket to the gas chamber. . . | “The «

|
|
|

attorney
the stat
not my
by JACK G. HEISE | The st
Special Investigator for OFFICIAL DETECTIVE STORIES | “oe
TON
gatherec
N MONDAY morning, May 3, 1982, as State’s | work. F
Ores Theodore Floro faced a jury in the Mc- | gave lec!
Lean County Circuit Court of Judge Henry Cowlin trajector
in Bloomington, Illinois, he knew he was about to start the | Other ex
-most difficult case he had ever prosecuted. wounds t
Floro had carefully selected the panel of seven men and Forer
five women to hear his witnesses and view his evidence. age ana
The venire consisted of a psychologist, a utility lineman, a 1 and how
warehouse worker, a banker, two engineers, a secretary, a Amor ¢
clerk and three housewives. Querha
* The state’s case would be presented by 10 witnesses, most from th
of them highly qualified professionals, and the evidence northe
extremely technical. Floro had already announced that he | They
would ask for the death penalty upon conviction because stressed
the crime involved multiple murders. | of the sp.
His opening remarks to the jury were “This is not your { health °
ordinary murder case. There is no smoking gun. What you The 3}
are about to hear has taken hundreds of hours of work by Penipieda
dedicated lawmen and skilled technicians over a seven difficult
month period. Their efforts have put together a pattern of foods Tr
cold, calculated murder motivated by greed.” simulat
The opening statement by the defense was equally brief With
and to the point. They contended the prosecution had time, 1
placed the wrong defendant on trial. dosages
pearance
organ is
If iter
Vital question raised by Coroner Alvin Querhammer (above) H = be a
sparked probe into mysterious deaths in a certain family i UCES S}


wd

as State's
1 the Mc-
nry Cowlin

to start the

en men and
his evidence.
ty lineman, a
secretary, a

nesses, most
he evidence
nced that he

tion because

is not your
What you

f work by

nmer (ab
ertain farnily

Eighty-nine-year-old Mary Lambert (I.) and her daughter, Marion Mueller, 69, both died under suspicious circumstances

“The defendant is the victim, not the killer,” the defense
attorney said. “In the days ahead we will prove to you that
the state’s star witness is the person who should be on trial,
not my client.”

The state’s case had actually begun the previous summer
at a coroner’s convention.

Coroner’s medical examiners and pathologists had
gathered to discuss the various technical phases of their
work. Experts in forensic medicine and anthropologies
gave lectures and seminars. Speakers detailed how the
trajectory of. bullet could be determined from the wounds.
Other experts related how to measure stab and slash
wounds to determine the type of blade that had been used.

Forensic anthropologists spoke on how to determine the
age and sex of a victim when the only remains were bones
and how faces could be reconstructed from skulls.

Among those who attended the convention were Alvin
Querhammer from McHenry County and Robert Babcox
from the neighboring Lake County, both located in the
northeastern part of the state on the Wisconsin border.

They had just attended a seminar in which the speakers
stressed the importance of post mortem examinations. One
of the speakers had been a toxicologist with the state public
health service. His topic had been arsenic poisoning.

The speaker had pointed out that arsenic is one of the
easiest poisonous substances to administer and most
difficult to detect. It is tasteless and can be put into most
foods. The symptoms, depending upon the.amount given,
simulate a number of diseases.

With a large dose that may cause death within a short
time, it may appear to be sudden heart failure. Smaller
dosages, given over a period of time, can take on the ap-
pearance of a number of diseases, depending upon which
organ is most severely affected.

If it creates the most damage in the lungs, it may appear
to be arteriosclerosis. Damage to the bone stru¢ture pro-
duces symptoms of crippling arthritis. The organs most

often affected first are the liver and kidneys.

“Without a post mortem and tissue samples being tested
by a toxicologist, there are no positive means to determine
if arsenic is present,” the speaker said. “It is one of the big
reasons why, even with what may appear to be natural
deaths, there should be an autopsy.”

On the other hand, the speaker pointed out, arsenic is a
substance that remains in the tissues, fingernails and hair
of a victim and its presence can be detected for a long period
after death, unless, of course, the victim is cremated.

As it is with most conventioneers, after the speakers at
the seminars had been heard, there was shop talk.
Querhammer and Babcox were discussing the lecture given
by the toxicologist.

“Have you ever had cases in which you thought an au-
topsy should have been performed but wasn’t” Querham-
mer asked.

“T think we all have,” Babcox replied. “In fact, I almost
called you last fall about a woman who died in McHenry.”

“Call me, for what?” Querhammer asked.

“You probably weren’t aware of it because the woman in
McHenry died before the one in Waukegan. Do you recall a
woman by the name of Mrs. Mary Lambert?”

Querhammer readily recalled the name. Mary Lambert
was a pioneer in the area and a very wealthy widow. She
was 89 years old and had lived alone in a plush con-
dominium. Querhammer couldn’t recall the exact date [it
was August 6, 1980] that she had died in the McHenry
hospital.

“As I recall, it was sort of sudden,” Querhammer said.
“She had been in good health, for her age, but she went to
visit some relatives and suddenly became ill.”

Because the death had taken place in a’hospital and
neither the attending physician or family had requested it,
there hadn’t been an autopsy.

“Why were you going to call me about her?” Querham-
mer asked.

Official Detective 33

sell

nee ihe

CONTINUED
drink PAGE I

d, leayj year-old woman -
anese’s © Mueller ald 47..

work, In his credenza ow
Over ;
suffered coming months, Micha
and feet umbness in his h el *
vere h and nerve ands
initi € couldn’t walk D 8e So se-
a wa lally baffled, - Doctors were

Hours befo
re A ;
died on May 16 Pires S father

help to sign the nS his wife's

greement.

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Viewers glad to be at execution

2 who helped convict Albanese over a decade ago are there at the end

By Charles Mount
TRIBUNE STAFF WRITER

Marlene Lantz and Robert
Hrodey devoted a year of their
lives to putting Charles Albanese
behind bars 13 years ago, but the
case lingered through countless
appeals.

Wednesday morning, the end
came when they got to see Al-
banese, 58, die.

Lantz, now McHenry County
coroner, and Hrodey, a former in-
vestigator for the state’s attorney’s
office, volunteered to be among
the official witnesses at Stateville
Correctional Center when Al-
banese died by lethal injection.

Albanese was put to death for
the fatal arsenic poisoning of
three relatives, including his
father, in 1980 and 1981. Prosecu-
tors said he killed to inherit
money and take over the family’s
trophy-making business in
McHenry.

For Lantz, 48, who was chief
deputy coroner during the investi-
gation, it was an event that she
has said for years she wanted to
witness.

“T felt good,” said Lantz, who sat
in the front row in the witness
room and had a serene look on
her face as she watched Albanese
lying on his back, strapped and
handcuffed to a gurney.

“I said to myself that this is a
good day and a
Lantz said, ‘‘and I thought,
‘Charles, you got exactly what you
deserved.’ ”

Hrodey said investigators “gave

good morning,”

Albanese a year of our lives”
when they conducted an
exhaustive study into how the
victims were poisoned, where Al-
banese got the arsenic and his
voluminous financial records.

The former Spring Grove resi-
dent also was convicted of stealing
more than $30,000 worth of zinc
and metal from the business by
Selling it on the side and pock-
eting the money.

Lantz and Hrodey: were im-
pressed with the peaceful death by
lethal injection.

“If the general public could see
what we saw, it would dull the ar-
gument that the death penalty is a
cruel and unusual punishment,”
said Hrodey, 49, now a Woodstock
private investigator.

“If I knew I was going to die,
that’s the way I’d want to go, be-
cause he didn’t appear to have
any pain like you do when you
have a heart attack,” Hrodey said.

“I saw his lips quiver, he
inhaled and exhaled, and then he
started to snore,” he said. “There
was no involuntary shuddering
like I’ve seen: animals go through
when they’re put to sleep.

“The prison officials had
warned us that if we were looking
for retribution, we wouldn’t find
it there. It was a very clinical pro-
cedure. The most suffering Al-
banese had was from the anticipa-
tion and the prick of the needle
with the IV.”

Lantz said Albanese had it a lot
easier than his victims, because
arsenic can cause a long, painful

death.

Albanese spent his last day
talking sports with prison officials
in the execution Wing that has
about 10 cells, but he refused
visits from relatives. He was given
a final mass by a prison priest,
and he talked to his attorney,
Roger Webber, by telephone.

About 8:30 p.m.,° Albanese was
given a sedative. Among the six
Illinois inmates executed by lethal
injection since 1990, Albanese was
the first to accept prison officials’
offer of a sedative.

Shortly after midnight, peniten-
tiary officials went to his cell.
They put an IV in his left arm,
strapped and handcuffed him toa
gurney, and wheeled him down a
corridor into the execution cham-
ber.

Albanese said, ‘“‘No,” when |
Stateville Warden George DeTella
asked whether he had any last |
words to add to the written state- |
ment Albanese had issued earlier
maintaining his innocence.

Seconds later, DeTella gave the |
command: “Start the execution.”
- Behind a partition, where Al-
banese’s left arm protruded
through an opening, two correc-
tions employees began the fatal in-
jection at 12:19 p.m. It came about
six minutes after 34 state and
media witnesses were ushered |
into the room and took their seats.

At 12:24 a.m., Albanese was
dead. He died privately, because a
curtain was closed seconds after
the lethal serum began pouring
into his body.


ean |
\
\

ALBANESE v. McGINNIS 551
Cite as 823 F.Supp. 521 (N.D.III. 1993)

known of the gross inadequacy of the Toxi-
cology Laboratory” and did not provide this
information to Albanese. No claim that the
State violated Brady was raised in the IIli-
nois courts. “Comity concerns dictate that
the requirement of exhaustion is not satisfied
by the mere statement of a federal claim in
state court. Just as the State must afford
the petitioner a full and fair hearing on his
federal claim, so must the petitioner afford
the State a full and fair opportunity to ad-
dress and resolve the claim on the merits.”
Keeney v. Tamayo-Reyes, —- U.S. —,
——, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318
(1992). In his challenge to the scientific evi-
dence at the post conviction hearing, Alba-
nese claimed that the evidence was unreliable
and that Kelly’s failure to discover the “prob-
lems” constituted ineffective assistance of
counsel. (Petitioner’s Br. in Post Conviction
Appeal- at 18-26, 29-31). The transcripts
from the hearing and the briefs on appeal are
devoid of any asseveration that the State
suppressed potentially exculpatory informa-
tion contrary to the requirements of Brady.

[25,26] Under the principles outlined in
Verdin v. O’Leary, 972 F.2d.1467 (7th Cir.
1992), Claim 6 has been procedurally default-
ed due to Albanese’s failure to fairly present
the issue to the Illinois courts. In order to
be fairly presented, both the operative facts
and the controlling legal principles must be
submitted to the reviewing court. Picard v.
Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513,
30 L.Ed.2d 438 (1971). Although Albanese
presented reports regarding poor conditions
at the Toxicology Laboratory at the post
conviction hearing and on appeal, he did so in
the context of claims of (1) ineffective assis-

guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.

34. Claim 7 attacks Fred Townsend’s testimony
regarding when he tested tissue samples of Mar-
ion Mueller:

Testimony of Fred Townsend, State’s Chemist
who performed tests which were indispensable
foundation for opinions .as to cause of death,
that he performed tests on body tissue samples
of Marion Mueller that he received on May 29,
1981. Evidence now available to Defendant
reveals Marion Mueller’s body tissue samples
were not available until August, 1981. All of
this evidence was within the knowledge and
control of the State.

tance of counsel and (2) sufficiency of the
evidence. The controlling principles of Bra-
dy and its progeny were not provided. Re-
lief on Claim 6 is, therefore, foreclosed.

B. Use of False or Perjurious Evidence.

All of the claims in this category, numbers
7 through 12, were presented in Albanese’s
Supplemental Petition for Writ of Habeas
Corpus. In an affidavit filed with the Sup-
plemental Petition Albanese asserts that
“since becoming incarcerated in 1982, I have
obtained additional documents ... which
support the allegations in my Supplemental
Petition.” With the exception of Claim ‘12,
all of the supplemental claims are premised
on the theory that the prosecution “stacked
the deck” against Albanese by encouraging
perjury or by passively allowing the presen-
tation of evidence it knew to be untrue, with
the result that the evidence against Albanese
was unreliable. Claim 12- recites a specific
example of such unreliability.

[27] In Claims 7 and 8, Albanese re-
counts specific errors which allegedly oc-
curred in the testing of tissue samples at the
Laboratory.*4 Because the State knew of
these errors at the time of the trials, Alba-
nese argues, his convictions “were obtained
based on perjury or other patently false evi-
dence.” Each claim consists of two parts:
unreliability of evidence and the State’s al-
leged knowing use of perjurious testimony.
Neither aspect was presented to the Illinois
courts in precisely the terms of the Petition.
Albanese asserted the general unreliability of
the scientific evidence at his post conviction
hearing, but the attack was based on the

Claim 8 attacks Townsend's testimony regarding

the number of tests performed on tissue samples

of M.J.:
Testimony of Fred Townsend that he only per-
formed two sets of tests on tissue samples of
M.J. Albanese, on in May 1981 and one in
September, 1981. Documents now available
to Defendant reveal Townsend performed a
third series of tests in June, yielding results
that directly contradict the results of the May
and September tests. Said contradictions
raise a reasonable doubt as to the cause of
death of M.J. Albanese. All of said documents
were within the control of the State.

552 823 FEDERAL SUPPLEMENT

Baselt, Fitzpatrick, and Poklis reports and
on the closing of the Toxicology Laboratory
(Petitioner’s Br. in Post Conviction Appeal at
29-31). The specific details of when samples
were taken from Marion Mueller’s body and
how many tests were performed with respect
to M.J. were not recounted.

Bearing in mind that in general, “the Con-
stitution has little to say about rules of evi-
dence,” Gacy v. Welborn, 994 F.2d 305, 316
(7th Cir.1993), this court finds that Albanese
has procedurally defaulted the unreliability
aspect of Claims 7 and.8. The requirement
in habeas corpus cases that all claims of
error must be presented first to the state
courts would be rendered meaningless if a
petitioner could preserve all specific claims of
evidentiary error merely by asserting gener-
ally in state court that the evidence was
insufficient or unreliable. Albanese cannot
present’ generalized claims to the Illinois
courts ‘and save specific ones for this court,
unless he can show cause for the default, and
actual prejudice suffered under Wainwright
v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977).

Albanese may be trying to establish cause
for his default based on newly discovered
evidence by stating that the Supplemental
Petition is supported by documents acquired
“since becoming incarcerated” and by “docu-
ments now available.” Unfortunately, Alba-
nese has not demonstrated that any of the
documents attached to his Supplemental Pe-
tition are truly “new.”
“[NJewly discovered evidence” has a well-
settled meaning; it is evidence which could
not reasonably have been presented by the
petitioner in the earlier proceeding. ...
By definition such evidence existed at an
earlier time; thus, one must inquire
“whether the petitioner reasonably either
did not know about it or could not have
presented it at an earlier proceeding.”

United States ex rel. Shore v. O’Leary, 833
F.2d 663, 669 (7th Cir.1987) (citations omit-
ted). Albanese claims only that the docu-
ments he relies on were obtained by him
“since 1982.” (Albanese Affidavit at { 2).
The relevant time period for determining
whether the documents are “new” is much
narrower; the Illinois Supreme Court ruled

on Albanese’s post conviction petition on Sep-
tember 29, 1988 and denied rehearing in
December of that year. Only if Albanese
could demonstrate that he could not reason-
ably have presented these documents to the
state courts before the end of 1988 would
they qualify as “newly discovered.” Alba-
nese has provided no details about his acqui-
sition of the documents; it is impossible to
determine from Albanese’s filings before this
court when he obtained them, and certainly
there’ has been no showing that the docu-
ments about the Toxicology Laboratory tests
could not have been discovered prior to 1989.
No other possible basis for showing cause

under Wainwright being discernable, the

court finds the “unreliability” aspect of
Claims 7 and 8 to be procedurally defaulted.

[28] What remains is Albanese’s asser-
tion that his due process rights were violated
by the prosecution’s knowing use’ of false
evidence and -perjured testimony in securing
his convictions. Albanese cites Napue v. Illi

nois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d:

1217 (1959) in support of this claim. In
Napue, a prosecution witness serving a 199-
year sentence for the same crime (murder)
with which the defendant. Napue was
charged, was asked by the Assistant State’s
Attorney “Have I promised you that I would
recommend any reduction of sentence to any-
body?” Jd. at 271, 79 S.Ct. at 1178. The
witness responded that no such promise had
been made. In fact, the Assistant State’s
Attorney had promised to seek a reduction in
sentence for the witness in exchange for his
testimony against Napue and, therefore,
knew the witness’ answer to be false when it
was given. Id. Evidence of the Assistant’s

knowledge was presented in the form a writ
of error coram nobis which he filed urging a
reduction in sentence for the witness, and
reciting that the Assistant had promised the
witness this effort in order to secure his
testimony against Napue. /d. at 266, n. 1,79
S.Ct. at 1175, n. 1. The Supreme Court
reversed the conviction, stating “it is estab-
lished that a conviction obtained through use
of false evidence, known to be such by repre-
sentatives of the State, must fall under the
Fourteenth Amendment. The same result
obtains when the State, although not solicit-


ALBANESE v. McGINNIS

D093

Cite as 823 F.Supp. 521 (N.D.IIl. 1993)

ing false evidence, allows it to go uncorrected
when it appears.” Jd. at 269, 79 S.Ct. at
1177 (citations omitted).

Albanese has attacked the testing per-
formed by the Laboratory, but at no point
during the six years during which his cases
were before the Illinois courts did Albanese
assert that the prosecution knowingly used
false toxicology evidence against him.
Therefore, no state court was afforded the
opportunity to weigh whatever evidence Al-
banese could muster to support this claim in
light of the due process principles identified
in Napue and its progeny. Due process
claims in particular must be carefully identi-
fied to the state courts reviewing criminal
convictions. Verdin v. O’Leary, 972 F.2d at
1475 (“with respect to due process claims, the
contours of the possible constitutional claims
are, of course, particularly indistinct....
[T]Jhere is a special danger that a claim in
state court ‘may well present the echo of a
federal claim,’ while still not alerting the
state court to. the federal nature of the
claim.”) (citation omitted). Because the
particular due process claim that the state
knowingly used false evidence or perjured

35. That his general challenge to the reliability of
the evidence did not present the issue of knowing
use of false evidence is borne out by the nature of
the analysis actually performed by the Illinois
Supreme Court. The Court assumed that the
tests were unreliable and asked whether that fact
would warrant a new trial. Albanese III, 125
Ill.Dec. at 842-43, 531 N.E.2d at 21-22. Faced
with a claim based on Napue, the Court would
have had to focus, instead, on what the prosecu-
tion knew about the accuracy of the test results
before and at the time of trial.

36. Even if this court’s review were not foreclos-
ed, Albanese would have great difficulty in ob-
taining an evidentiary hearing on the issue of
prosecutorial misconduct. First, he has present-
ed no facts to support the allegations of prosecu-
torial misconduct. Holleman v. United States,
721 F.2d 1136, 1138 (7th Cir.1983) (‘To estab-
lish a prima facie case that a conviction should
be vacated because obtained through the use of
perjured testimony, a petitioner must show that
the testimony was in fact false and the govern-
ment used it with actual or constructive knowl-
edge of the falsity’). Second, Albanese would
have to show cause for his failure to develop
such. facts and actual prejudice resulting from
the failure. Keeney v. Tamayo—Reyes, —— U.S. at
——, ——, 112 S.Ct. at 1719, 1721; Cornell v.
Nix, 976 F.2d 376, 380 (8th Cir.1992) (en banc)
(habeas petitioner must show cause and preju-

testimony was not presented to the state
courts, it cannot be urged for the first time in
this court. Insofar as Claims 7 and 8 are
based on that theory, they are procedurally
defaulted.

[29,30] By Albanese’s own assertion,
Claim 12 *7 regarding the chain of custody of
certain tissue samples “is essentially a recita-
tion of additional factual information which
supports the inherent unreliability and pat-
ent falsity of the scientific evidence which
was the foundational information without
which this conviction could never have been
achieved.” (Petitioner's Resp. to Resp. to
Supplemental Pet. at 14-15). This court will
not consider a chain of custody argument
raised here for the first time.** Whether the
second set of tests performed on tissue sam-
ples from Marion Mueller should have been
admitted into evidence is a question of state
law, not cognizable here. See White v. Pe-
ters, 990 F.2d 338 (7th Cir.1993); Gacy v.
Welborn, 994 F.2d 305 (7th Cir.1993).

In Claim 9, Albanese attacks once again
the evidence of his financial situation pre-

dice to excuse failure to develop a material fact
in state court proceedings).

37. Claim 12 reads in full:

The scientific evidence presented to convict

Charles Albanese was otherwise unreliable in

one or more of the following ways:
Townsend testified to results of test performed
on the tissue samples of Marion Mueller that
he received in May 1981. He also testified to a
second series of tests performed on the second
set of tissue samples, which yielded identical
results as the first. The whereabouts of this
second set of tissue samples is unaccounted for
for a 15 day period, according to the testimony
as to its chain of custody. Additionally, it
appears that the second set of tissue samples
arrived in two separate shipments, 15 days
apart. One package arrived under the coro-
ner’s seal and identified as such. Fifteen days
later a second package arrived at the Toxicolo-
gy Laboratory without the coroner’s seal or
any other marking to account for its chain of
custody. No explanation was ever offered as
to how and why the tissue samples became
separated. Evidence handled in such a fash-
ion is patently unreliable.

38. Albanese’s overall claim that the evidence pre-
sented at his trials was insufficient to support his
convictions is considered in claim 4.

004 823 FEDERAL SUPPLEMENT

sented by the State.3® The State’s theory
posited that Albanese: committed the mur-
ders of Mueller, Lambert, and M.J. for finan-
cial gain, and that his financial situation was
quite dire immediately prior to the first two
murders. Albanese I, 79 Ill.Dee. at 610, 464
N.E.2d at 208. In his appeal of his Lake
County conviction, Albanese disputed the ac-
curacy of the State’s financial presentation.
Albanese IT, 85 Ill.Dec. at 444, 473 N .E.2d at
1249; (Petitioner’s Supplemental Br. and Ap-
pendix in Lake Appeal).

Albanese now reprises the financial argu-
ment which was considered and rejected in
Albanese IT. Because the factual foundation
for this argument is the Same now as it was
when presented to the Illinois Supreme
Court, ‘that court’s factual findings are ac-
cepted under § 2254(d). Insofar as Alba-
nese’s assertions regarding the State’s moti-
vation in presenting financial evidence differ
from those raised on direct appeal, the claim
is rejected for failure to present the matter
to the state courts. =

Albanese argues. that, the picture of his
financial health (or lack thereof) presented at
his trials was inaccurate due to omissions in
income and overstatement of expenses. The
State’s expert accountant, Rudolph Schaefer,
testified that in August 1980 Albanese was in
a “very critical financial condition ... evi-
denced by an acute shortage of cash.” Alba-
nese II, 85 Ill.Dec. at 446, 473 N.E.2d at
1251. Every omission in income is signifi-
cant, argues Albanese, because the less dire
his financial condition, the less motive to
murder family members for inheritances.

The account Summaries, copies of checks
and deposit slips submitted with the Supple-
mental Petition to document discrepancies in
the evidence are not new. Albanese argues
to this court that $10,590 was shown as an

39. Claim 9 states: “Financial exhibits prepared
by the State or at the direction and control of the
State, intentionally omitted substantial amounts
of income (1980—$21,263.13, 1981—$46,800.00)
and misreported expenses (1980—$23,063.09,
1981—$5,797.93) to create a grossly distorted
($96,924.15 net distortion) picture of Charles Al-
banese’s true financial health. The 1980 misre-
ported expenses break down as follows:

—$10,590.00 transferred from one checking
account to another and shown as an expense
each time;

expense in the State’s evidence when, in fact,
it was a transfer between accounts. This
precise point, down to the dollar figure, was
urged upon the Illinois Supreme Court in the
Lake County appeal. (Petitioner’s Supple-
mental Br. in Lake Appeal at 4). Similarly,
Albanese’s current reference to $1,700 in
double counted withdrawals merely echoes
the claim made nine years ago. (Jd. at 4-5).
The list Albanese submitted in the Lake
appeal of small deposits which were unac-
counted for in the State’s evidence is sub-
stantially similar to the list presented to this
court. On both lists, for example, the follow-
ing deposits are shown for 1980: February
19—$49.50; May 17—$487.47; June 27—
$42.55; September 20—$72.00. (Handwrit-
ten attachment to Supplemental Petition;
Lake Supplemental Br. at 2-3). Many addi-
tional duplications could be enumerated, but
the bottom line is that Albanese submitted to
the state Court substantially the same calcu-
lations about the State’s alleged errors as he
submits here,

When faced with that claim, the Illinois
Court determined that the facts presented at
trial did not materially misstate Albanese’s
monetary situation. Albanese IT, 85 Ill.Dee.
at 444, 473 N.E.2d at 1249 (“[Petitioner’s]
revisions do not detract in any way from the
State’s evidence summarizing defendant’s ob-
ligations and arrears in the critical months of
July and August of 1980”); supra at 34-37
(discussion of financial evidence in the con-
text of ineffective assistance of counsel
Claims 1(d) and 1(e)), Finding no reason to
dispute this analysis of Albanese’s presenta-
tion of alleged errors in the State’s evidence,
this court defers to the finding of the Illinois
Court under § 2254(d).

Indeed, there are Several reasons other
than § 2254(d) to accept the finding. First,

—$1,700.00 drawn in cash from account and
deposited in another, and shown as an expense
each time;

—$10,773.09 used to pay funeral expenses of
Marion Mueller. (This was not an expense of
Charles Albanese that would create a motive
for murder, but was handled as such by the
State's witness.) It is rather an expense paid
by Charles Albanese (or his wife) which was
created by the death of which he was ac-
cused."’

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“Nevertheless,” rejoined the physician,
“I think that gives you your motive. All
three of them were tied up. Weldam’s
feet were burned to make him tell where
the money was hidden. They slugged
him, probably when he protested that he
had no money. Then they beat the wo-
men, attacked them, ransacked the house
and left.”

A heavy blood-stained bludgeon, a
neck-yoke from one of the farm wagons,
was found in the yard. Evidently it had
been the weapon used. *

Nothing else of the slightest significance
was turned up. Once more, it looked like
a case without a clue.

Then came the first break. Bernard
Weldam, rallying on the threshold of
death, gained consciousness and gave offi-
cers a description of the assailants.

“Three men... one middle-aged...
two young,” he muttered through bruised
lips. “The old one... evil face... bald
head ... thumb missing on left hand...
same man who robbed me ten years ago
... got thirty-six hundred dollars.”

The exertion of his broken speech was
too much. Weldam fell back unconscious
on his hospital bed.

T 1 o'clock Thursday morning, Mrs.

Schrader died. By sunup that same
morning word had spread through the
small community. Three men! One,
minus a thumb!

Edward Schackmann, whose farm ad-
joined that of Weldam and the Schraders,
recalled that three men had stopped at
his house three days before and inquired
the way to Weldam’s home.

And one of those three men, Schack-
mann recalled—as did his sons, Clarence
and Ralph—had a thumb missing on his
left hand.

With Joe Menke and Otto Hipler, the
Schackmanns hurried to the sheriff’s office
with their story.

“We were suspicious, after the three
men left,” Schackmann explained. Clar-
ence and Ralph went over to Otto Hip-
ler’s and Joe Menke’s and got them to
drive up to Weldam’s house and nose
around a bit. They saw the car and fol-
lowed it for a mile.

“Some of the neighbors watehed Wel-
dam’s house that night, but nothing hap-
pened. When we heard about the
attack, we figured it might be the three
men we saw Monday night. Anyway,
the boys got the license number,”’—
Schackmann unfolded a piece of paper
and handed it to the sheriff—‘and here
it is.”

The sheriff grabbed the piece of paper.
On it was scribbled something that was to
prove a real clue: “IND. 56-644.”

Instead of phoning the chief of police
at Indianapolis Sheriff Sowers called his
chief deputy, dashed to his car and drove
at once to the Hoosier capital.

A registrar of license told them, there,
that the license had been issued to Har-
old Peck. The registrar gave them Peck’s
Indianapolis address. They went there
and were told by Mrs, Peck that her hus-
band was in Danville. ‘

George E. Freeman, tall, soldierly chief
of Police of Danville, sat in his office read-
ing a front-page account of the “torture
murder” of Mrs. Mary Schrader and the
brutal treatment of her critically injured
brother and daughter. It was a crime
that found its way—through its sheer
fiendishness— onto most front pages
throughout the entire country that day.

The chief swivelled his chair and faced
Police Lieutenant Richard Johnson and
Detectives Morrissey and William New-
man, three veteran officers on the force.

“Tough,” said the chief. “A tough case
for... ”

True Detective Mysteries

Just then Sheriff Sowers and his deputy,
George Watkins, burst into the anteroom.
Introductions followed. Then Sowers out-
lined his problem.

“And so,” he concluded, “I want help
from your department to capture Peck
and trace his ear.”

“Chief,” Newman interrupted, “that
sounds like the gang we’ve been watching
for almost a year. Wait until I get Wash
Smith. He’s got a line on that outfit.”

I was sitting in the squad room when
Newman came in to summon me. I went
to the chief’s office. There were more
introductions. Sowers re-told his story.

“That’s right, boys,” I said, when he
had finished. “Peck’s mixed up with a
gang that’s been pulling a lot of jobs
around here. We've never been able to
pin anything on them.”

Inwardly, I felt jubilant. My hunch
had proved true. The Cozad murder and
the Schrader-Weldam atrocity bore marks
of the same guilty hands. And we wanted,
for murder, now, a middle-aged man
whose left thumb was missing. That would
be Harry Shelby. John Allen and either
Earl Stark or Harold Peck, other members
of the gang of four, answered the aged
man’s hospital bed description: “ .. .
two young.”

Here, at last, was an opportunity not
only to connect Shelby with the murder
of Cozad, but to implicate him and _ his
gang in an even morc heinous crime.

“My men got a line on Peck when
they worked against his gang before,
Sheriff,’ Chief Freeman was assuring
Sowers. “Just stick around for a few hours
and we'll have your man wrapped up and
ready to deliver to you.”

We went to work immediately. Lieu-
tenant Johnson and Detectives Newman
and Morrissey began a discreet canvass of
gambling joints, bootlegging dumps, pool-
rooms and houses of ill fame. They were
told to rout my partner Jess Cowan, who
was off duty that day, out of bed and
to take him with them.

With Lieutenant Birelinc and Sheriff
Sowers, I went to visit a woman who
maintained a small shop in Walnut
Street, north of police headquarters. Peck
was known to visit her regularly when
in Danville.

“ E want to see Peck about a little
bootlegging deal,” I told her.
“Where can we find him?”

I knew that she knew Peck could not
be involved in bootlegging and that, there-
fore, she would not fear to answer, ‘The
stall worked.

“Harold was here a while ago,” she
said, “but he went uptown to see a friend
about his car. He’s not mixed up in any
bootlegging, though,” ‘she said.

“Oh, we know he’s not in it,” I told her
truthfully enough, “but we're checking up
on a couple of Vloggers and thought that
he might give us some information about
them. There’s no hurry about il, though,”
I added to allay any suspicions she might
have. “We can see him any time.”

I had a good idea what “friend” Peck
had gone to sec. We drove immediately
to a gambling joint on Jackson Strect.
five blocks away. I put a little pressure
on the proprietor. Put the fear of 1
police raid in his heart. He talked.

Talk was all we got out of it, however.
Peck and Johnny Allen had been there.
But they had just left in Peck’s car.

“They said they were going to a garage
at the Soldiers’ Home to get the oil
changed,” our informant added.

Bireline nudged my arm as we hurried
back to the car.

“The Home is two miles from here,” he
suid. “Those boys wouldn’t go way oul
there. They're making a getaway.”

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epartments.
s examining

’ he asked.
an handker-

ied. ‘The
»bably skull
f strangula-

dead. man’s

‘oughly, I’d
Wednesday

om, One of
yurteen-inch
re imbedded

ito the room
e frequently

way, about
r explained.
_ and Jaid it

se,” he said.
to the room

“I talked to
r where the
eeled shoes

went to the
en made by
‘avy, rubber

- sheriff. He

ity Ryan was
-bound bank-
is’? were the
ver.

bank,” Ryan
dloan stock,”’

The Red Riddle of Vermilion County 53

Sheriff Ward looked up and. nodded.

“Probably two men killed Cozad,’’ he
said. “They came here Wednesday
night to rob him, got into a fight and
slapped him down with the wrench.
After knocking him out, they probably
tied him up and tossed him on the bed
while they ransacked the place. ‘The
bank-book showed them that he had his
money salted safely away and _ they
heat it, without untying him, and left
him to die.”

“Tt looks,” agreed Ryan, “like it
stacks up that way.”

pay FEIDLER, police reporter, and
Hud Robbins, staff photographer of
the Danville Commercial News, arrived
at the shack. Robbins, who frequently
doubled for Earl E. Rumbaugh, official
police photographer and finger-print ex-
pert, went inside where he snapped the
body from several angles. At the request
of the sheriff, he likewise photographed
the footprints discovered by Morris.

He had scarcely finished when Run-
baugh arrived. Rumbaugh went to
work immediately on the monkey wrench
and rifle in search of finger-prints.

Ward, meanwhile, went outside to
question those who had discovered the crime. The two men
he had told to wait were still there. One of them was Wilbur
Phillips, a farmer who lived a short distance from Cozad’s
shack. The other was Leo Starkey, employed as a farmhand
on the near-by farm of W. C. Rankin. Phillips told briefly
of their discovery of the crime.

“Teo and I met at the fence about seven-thirty. We both
noticed that no smoke came from the chimney of Cozad’s
shack and that the door was partly open. We yelled for Newt
several times but got no reply. We figured he was sick and
needed help. So we climbed the fence and came over to in-
vestigate. We found the body across the cot and the shack all
an up. Then we ran to the phone and called you. That's
all.”

Further questioning of neighboring farmers revealed that

WHERE MURDERING THUGS SEARCHED FOR MISER’S GOLD

Scene of first atrocity that roused Illinois. Newton Cozad’s shack taken
immediately: after his body was discovered. Left to right: Sheriff Ward,
Deputy-Sheriff Robert Meade, and Coroner Harry George

Cozad had last been seen alive on Wednesday afternoon. No
one had seen any men or cars around his small farm lot.

Rumbaugh came out of the house while Sheriff Ward was
still plying neighbors of the murdered man with questions.
Ward turned to him.

“Not much luck, Sheriff,’ Rumbaugh said. “T looked all
over the place. Found only a few prints and they were so
badly smudged and blurred that none of them made a good
print. I’ll make copies of them for you, but I’m afraid they
won’t be of much help.” ;

Sheriff Ward nodded dismally. The rifle and monkey wrench,
he decided, must have belonged to the murdered miser, Newton
Cozad. As clues, they weren't worth much. Lack of finger-
prints made the case seem pretty hopeless, Lack of a witness
who had seen anyone near the Cozad — (Continued on page 92)

(Below) Danville officers who figured most promi-

nently in breaking this case. Left to right: Captain

Richard Johnson; W. C. (‘‘Wash”’) Smith, co-author of

this story; Detective Jesse Cowan, and Licutenant
William Morrissey


True Detective Mysteries

The Red Riddle of Vermilion County

shack at the time of the murder made it
till more hopeless.

Motive was quite obvious. But noth-
ing that pointed toward the actual killer
or killers. He went on with his question-
ing. Did Cozad have any relatives? Co-
zad did, someone assured the sheriff. A
brother, John Cozad. Where? Some-
where in Chicago. Hadn't visited New-
ion in years.

Cozad, questions clicited, had no known
enemies. His brother, John, would in-
herit the money and property now that
Newton was dead.

Sheriff Ward, overlooking no bets, wired
the address of John Cozad to Chief of
Detectives Shoemaker in Chicago, a hun-
dred and thirty miles away, and asked for
an immediate check, A squad car rushed
fo an apartment in the West Side resi-
dential district.

No one by the name of John Cozad
lived there. The building superintendent
was questioned. A “John Cozad” had lived
there, but had moved some time before.
He had not left) a forwarding address.
Police combed Chicago. No trace of John
Cozad was found. ee

A newspaper reporter, Interviewing per-
ons who had known John Cozad inti-
mately, finally assured police that the man
was incapable of killing his brother. He
was, the reporter learned, tubercular and
so badly crippled that he was unable to
walk without the aid of a cane,

NOTHER suspect was climinated when
police found that he had been in-a
hospital a week before and a week after
Cozad’s brutal murder. Rumbaugh’s
vloomy predictions about the finger-prints
were correct. The only prints found were
-o badly stuudged as to be utterly value-
less. The murder of Newton Cozad
veached a sudden, baffling deadlock.

As a detective on the Danville Police
Department's Homicide Squad, I was in
“a spot.” [ had, of course, learned at
first hand the details of Newton Cozad’s
murder ax I have outlined them in fore-
voing paragraphs. And I had «a hunch.

It was more than «a hunch. It was a
hunch supported, somewhat, by — stool-
pigeon information. It was this:

L thought I knew who had planned and
executed the murder of Newton Cozad.

There was, at the time of the murder,
a gang of four men suspected of pulling a
string of robberies and burglaries in Dan-
ville. They had been picked up several
limes, and each time released for lack of
evidence. I had put in a lot of spare
time diligently getting a Jine on them.
They were quite capable of committing
the Cozad crime,

These men were: Harry Shelby, forty-
four, of Tilton, a small suburb north of
Danville; his nephew, John Allen, nine-
teen, of Danville; Harl Stark of Westville,
« small mining town six miles north of
Danville and Harold Peck of Indianapolis.

Peck was « dapper fellow of thirty-five.
He had been manager of the old Empress
Theater on East Main Street in Danville.
The theater was now closed. Peck had
married and moved to Indianapolis, but
he was often in Danville to visit «a woman
friend who lived there.

Shelby and Allen were both ex-convicts.
Shelby’s left thumb was missing. Years
before, while working, in a mine, Shelby
had deliberately placed his left hand upon
a track rail and chopped off the thumb
with an axe. The coal company, un-
able to prove it, had been forced to award
Shelby thirteen hundred dollars damages.

So much for the gang I had in mind.

(Continued from page 53)

They were tough—the kind of men who
would brutally knock a man unconscious,
tie him up and leave him to die. But
to prove that they had done just that to
Newton Cozad, I would have had to go
to work at once, digging into the mystery
of the murdered miser,

And that’s where I was in a spot. The
case belonged to the county authorities.
They were making the investigation. It
had happened in’ their territory. I had,
technically, no business poking my nose
into the case.

Nevertheless, I was eager to do that
very thing. Hager enough to tell Chief
George Ei. Freeman of the Danville Police
just what J had and to assure him that I
felt 1 could break the Cozad case if I
were assigned to it. He thought it over.

“Tt’s a tough proposition, Wash,” he
told me. “I think you might break the
case. But that murder is out of my de-
partinent. Sheriff Ward and Deputy Ryan
may feel that we think they are unable
to handle the ease if I put you on it.
Much as Vd like to, I think you'd better
let the sheriff work on it a month or so
longer. Then you can go ahead.

His argument, of course, was sound. But
I went ahead, anyway, although not direct-
Iv on the Gozad case. I contented myself
with trying to Jearn every single thing I
could about Shelby and his gang: I knew
his acquaintances, friends, relatives—and
those of the members of his gang. If I
could trip them up on one of the many
robberies of which they were suspected
then, having them ‘as. prisoners. of the
Danville Police Department, 1 could try to
pin the Cozad murder on them.

Things were still at this seeming im-
passe when another epic of brutality much
like the murder of Newton Cozad was
dropped, without warning, in our laps.

An hour before noon on Wednesday,
August, 30th, 19383, a car moved slowly
along a road three miles outside of New-
ton, county seat of Jasper county in south-
em Illinois. The car that was traveling
through the peacefully serene countryside,
braked suddenly to a jarring, rasping halt.

UST ahead of the two men who were

in the car, a woman swayed, clung des-
perately to a mailpost along the road.
She opened her mouth as though to shout
—and no sound came out. Only her mute,
horror-filled eyes pleaded pathetically for
help as she tried to pull herself erect be-
side the post.

Her face was battered and purple where
flesh showed in spots not covered by a
mask of congealing blood that dripped
- upon her torn, already smeared
dress.

The two men in the car, Will Meek and
Otto Hipler, neighboring residents of the
little county seat, stared -with bulging eyes,
open mouths. Hipler, the first to speak,
gasped:

“Good God! It’s Anna Schrader!”

The two men leaped out of their car,
grasped the woman Jn strong arms as she
began to slump groundward.

“Onkle Ben ... Momma!” Her bruised
lips formed the hysterical words as she
sank, mercifully, into complete uncon-
sciousness.

On a knoll to their right less than one
hundred yards away, was the humble
three-room home of the forty-seven-year-
old woman’s uncle, Bernard Weldam. It
was with her uncle that Anna Schrader
and her eighty-two-year-old mother lived.

The house itselfi—except that it had
three rooms—was the same sort of rough,
clapboard construction, as the house of

the murdered old miser, Newton Cozad.

Panting under the weight of their bur-
den who was clad in the style of half a
century ago, Meek and Hipler carried the
unconscious woman up the knoll toward
the house of the eighty-four-year-old
Bernard Weldam.

A vagrant breeze whisked aside a torn
section of the woman’s blouse. Another
gasp came from the two men who carried
her. The breasts of Anna Shrader were
badly mutilated. Horrible gashes were in
the white skin. The flesh had been
gnawed. And the imprints deeply imbed-
ded in that torn flesh were the imprints
of human teeth.

The two men shuddered, shook their
heads against a nausea that threatened
to overcome them, and reached the house.
They kicked open the unlatched door and
stepped into the kitchen. Chairs were
overturned, papers torn from the walls,
drawers opened, their contents on the
floor. The place had been thoroughly
ransacked.

Still carrying their unconscious burden,
the two men headed toward an adjoining
bedroom. At the doorway of the bed-
room, they halted wordlessly. Their al-
ready bulging eyes were glued, now, to
new evidences of horror, Starting, in-
voluntarily, at the ghastly sight that con-
fronted them, they almost dropped the
unconscious woman.

LUMPED in .a rough, home-made

chair, was the body of Bernard Wel-
dam. Jfis face was blackened by bruises,
his bowed head matted with blood. His
bald pate, rimmed with graying hair, was
covered with drying blood, some of which
had run down his gnarled face to streak
with crimson his full, white beard. Pi

He sat motionless in his chair, facing
a small bed. His eyes were tightly clamped
shut. It was just as well that they were
shut.

On the bed, frightfully bruised and
stained, Jay the body of his aged sister,
Mrs. Mary Schrader. Pieces of wire on
the bloody coverlets showed that her out-
stretched hands and feet once had been
fastened to the bed.

Meck and Hipler, after their first shock
at the gruesome sight before them, acted
quickly. They placed Miss Schrader on
the bed beside her mother. They ex-
amined the three unconscious bodies for
signs of life. In each of them, stout pio-
neer hearts still beat faintly, doggedly.

“They’re still alive,” said Hipler. “We'd
better get a doctor up here quick—and the
sheriff.

Charles Sowers, Sheriff of Jasper County,
and Doctor J. W. Hutton, coroner,
reached there quickly. Hutton examined
the three unconscious patients.

“Mrs. Schrader is beyond recovery,” he
pronounced, ‘“Weldam has a_ fractured
skull and severe bruises on face and body.
His feet are badly burned in spots, but
that is not serious. Miss Schrader is
suffering from contusion of the brain,
shock and body bruises. Her breasts are
badly mutilated and both women have
been criminally assaulted.”

“Will they pull through?” Sowers
wanted to know.

“The old woman—no. The younger
woman and Weldam have a slender
chance, but I don’t hold much hope for
them.” Hutton shook his head. “Horri-
ble,” he said quietly. “Fiendishly horvi-
ble!”

“They had no enemies,” said Sowers.
“Tt’s been rumored they had money hid-

den here, but that was just a rumor.”

“Nevertheless.”
“T think that giv
three of them \
feet were burned
the money was
him, probably w!
had no money.
men, attacked t)
and left.”

A heavy bk
neck-yoke from
was found in th:
been the weapo:

Nothing else ©
was turned up.

a case without «

Then came |
Weldam, rallyi:
death, gained co
cers a deseripti

“Three men .
two young,” hr
lips. “The old :
head... thum!
same man who
... got thirty-s

The exertion
too much. Wel
on his hospital

T 1 o'clock
Schrader d:
morning word
small commun
minus a thumb!
Edward Scha
joined that of \'
recalled that t)
his house three
the way to W:
And one of

mann recalled—

and Ralph—ha:
left hand.

With Joe Me
Schackmanns hi
with their stor)

“We were si
men left,” Sch
ence and Ralp!
ler’s and Joe *
drive up to
around a bit.
lowed it for a

“Some of th
dam’s house t!
pened. Whe
attack, we figv
men we saw
the boys go’
Schackmann w
and handed it
b362"

The sheriff :
On it was scri!
prove a real ¢

Instead of
at Indianapol!
chief deputy, ‘
at once to th:

A registrar
that the licen
old Peck. Th
Indianapolis
and were told
band was in |

George E. !
of Police of D
ing a front-p
murder” of 4
brutal treatm
brother and
that found
fiendishness —
throughout t!

The chief <
Police Lieut:
Detectives M
man, three v:

“Tough,” 5
for... 2


O4

"You take the car and head out after
them,” 1] suggested. “UH stay here and
watch this joint in case they double back
here.”

Bireline snd Sowers raced away. They
stopped at Main Street to pick up Patrol-
man Henry Goldenstein.

Five blocks east, a black. Model A Ford
coupe pulled out from Bowman Avenue
directly in front of their car.  Bireline
jerked his foot from the accelerator and
~lapped it down hard on the brake pedal
to avoid a collision.

“Damn fools,” he growled.

“Damned fools is right,’ chortled Gold-
stein. “Pake a look at that license plate.”

The license plate bore the legend:
IND. 56-644.”

Within less than a block, Lieutenant
Bireline brought the police cruiser along-
side the coupé, ent in front of the coupé
ind brought it oa halt. Harry Peek and
Johnny Allen sat in the front seat of the
ear.

“LJEY, Peek, I want to talk to you,”

Bireline shouted. He and Patrolman
Goldstein alighted, smiled disarmingly and
<tarted back toward Peck’s car. Sheriff
Sowers unlimbered a huge pistol. Bire-
line deftly knoeked down the sheriff's gun
hand. There were pedestrians in the
~treet,

“Put that eannon away before vou hurt
somebody he wrowled. "We'll take care
of this.’ He tumed to Peck. “The chief
wants to xee you about a bootlegging deal,
Harold.” he said casually. “You and
Allen ride down in our car. Goldenstein
will bring vour eoupé in.”

“Sure,” agreed Peck, relieved. ‘“We’re
clean on bootlegging, but if the chief
wants me fo tell him so, okay. Come
on, Johnny.”

Goldstein, before following in the coupé,
searched it. He found no guns, but did
find a handful of 8 caliber cartridges in
one corner of the seat.

At headquarters, the two suspeets were
vehement in their denials of guilt of any
variety.

“Hell.” shouted Peck angrily, “I don’t
know anything about those people at
Newton. I haven't been out of town for
a week.”

Jé went on like that for more than an
hour. The Jarge clock in Chief Freeman’s
office showed five-thirty, Thursday after-
neon, when the questioning temporarily
ceased, About forty-four hours had passed
~ince the brutal attack on the three help-
Jess reeluses at Newton, a hundred and
twenty miles away, and two men were
jn jail.

“Book these two as suspects,” Chief
Freeman ordered, “and lock them up in
separate cells. Then check their alibis. I
possible, find out whether they were
out ef town Monday or Tuesday nights.”

Allen had barely been let into his segre-
vated cell when I unbarred the heavy
stee] door and walked in. He greeted me
with a sickly grin. I went to work on
him at once.

“Johnny.” I assured him with grim fath-
crliness, “you're in one tough spot. The
best thing for you to do is to come clean.
There were three men on that job at
Newton. Who was the third man?”

I’d sized him up as a weak sister, but
not as weak as he proved to be. He
caved in all at once. His answer was
two hushed words.

“Harry Shelby.” he said,

Within five minutes. I was again in the
police cruiser, speeding toward Tilton,
about a mile southwest of Danville. Be-
side ‘me sat Lieutenant Bireline. In the
rear of the car were Detective Morrissey
and Patrolman Goldenstein.

JT knew that Shelby was a killer and

True Detective Mysteries

would shoot it out with us if he found
we were coming for him. With this in
mind, I entered Tilton by a side road
and parked the cruiser out of sight from
the home of a middle-aged factory worker
with whom Shelby roomed in her two-
story frame house.

In order to get Shelby from the house
without arousing his suspicions, I went into
a small store across the street from the
home and told a young clerk to run over
to the place and tell Shelby that he was
wanted on the telephone.

The ruse worked perfectly. We lost no
time in pubting him into a cell at city
prison.

Sheriff Sowers was elated. Within ten
hours from the time he got the license
number, three suspects had been lodged in

CORRECTION

Below is shown a photograph which
appeared on page 68, June, 1934, issue of
this magazine in connection with the
story, “The Vanishing Killer on the Night
I’xpress,” together with the ERRONEOUS
caption printed under the picture:

The vanishing killer shown be-
hind the bars during his sensa-
tional trial that led to conviction
and execution
The CORRECT caption which it was
intended be placed under this photograph
reads as follows:
The wife of the assassin, Cesare
Serviatti (left) is shown in the
prisoner’s dock in conference
with her lawyer. She was ad-
judged innocent

This crror, which occurred in preparing

copy, for the printer, is deeply regretted °

and is herewith publicly acknowledged.

True Detective Mysrerims
1926 Broadway, New York City

the Danville Jail, tentatively charged with
the murder of Mrs. Mary Schrader:

He'd left Newton without warrants for
the arrest of the suspects and Chief
Freeman refused to turn them over to him
until charges had legally been preferred
against them. Sowers, eager to be off
with the prisoners, phoned his deputy and
at 8:30 that same night the deputy, with
George Fear and one of the Shackmanns—
two of the persons who had seen Peck’s
car oat Newton that Monday  night—
reached Danville with three John Doe
warrants charging Peck, Allen and Shelby
with rape, robbery and murder.

Fear and Schackmann each identified
the trio singly—and_positively—as_ the
men who had inquired the way to the
Weldam home.

Before Chief Freeman turned the prison-
cers over to Sheriff Sowers, they were pho-
tographed and_finger-printed by Rum-
baugh. Then they were questioned once
more. Allen and Shelby seemed less dis-
tracted, this time, than Peck who pro-
claimed his innocence and said he was in
Danville on the night of the attack.

Asked how it happened that his car had
been seen at Newton both on Monday and
Tuesday nights, he said that he had loaned
it. to a fellow to deliver some whisky those
nights. He said the man was a stranger.

Patrolman Goldstenstein broke in with
a question.

“Was it Earl Stark?” he asked.

Peck, obviously agitated, denied that it
was Stark. I wondered about this. Stark
was the fourth member of the gang.
Goldenstein, who knew each member of
the gang personally, put it up to the
chief later.

“Tm. sure Stark is mixed up in_ this
somewhere, Chief,” he said.

“Shall I bring him in as a suspect until
we can check up on him?”

The chief thought it over.

“No,” he said. “These three have heen
positively identified as the men who were
ut Newton. We haven’t anything on
Stark, so let him alone.”

Later, we were to learn that Golden-
stein had been right. That the identifica-
tion of Peck had had a flaw in it. And
that Stark, not Peck, was the man we
wanted as “third” man in the Newton
atrocity,

Sowers departed that night with his
suspects. The next morning, eager to
help the sheriff clear or build up an iron-
clad case against the trio, Chief Freeman
threw his entire department into an inves-
tigation.

We sneceeded in’ blasting Peck's alibi
first. From his woman friend we dis-
covered that Peck wasn’t entirely in the
clear—as he had claimed—on the time
element, and that he at least knew who
had gone to Newton in his car.

I felt that the woman, with whom
Shelby and Allen often boarded, should
be able to give us information, since they
used her place as a sort of headquarters.
In this I was right. She assured us that
they had not been there Monday or Tues-
day and told us of a hold-up they had
pulled.

tre best. information, however, came
from a married woman on whom Al-
len spent much of his ill-gotten money. At
first she was defiant, but we soon broke
her down, bluffing her with the state-
ment that she and her family could be
sent to jail for consorting with and har-
boring criminals. The bluff worked.

Allen had confided in her. She, in
turn, told us. And her statement was
written down, witnessed and signed. Shel-
by and Allen, she said, had killed Newton
Cozad, the miser,

Shelby knocked the old man out and
tied him up. Allen ransacked the house.
He found the bank-book which showed
that the old man had put his money
safely away and, after taking seventeen
dollars from the old chap’s person, Shelby
and Allen had gone. They had, she said,
decided upon the crime after reading the
feature story in the Danville Times.
Everything jibed perfectly with the au-
thorities’ theory as to how the crime had
been committed.

-Concerning the robbery at Newton, the
woman’s statement read:

“He (Allen) told me of the Newton
robbery. He said that he, Shelby and
Stark drove to the farm and parked some
distance from the house. Weldam, Mrs.
Schrader and Miss Schrader were in the
yard and they walked up and started a
conversation with them.

“They pulled guns and told them it

‘was a stick-up. The younger woman started

screaming and Harry pushed her against
the building and started to gag her and tie
her up. The old lady tried to stick a
pitchfork in Allen, and Allen knocked her
down and his gun fell to the ground. The

old) man mad:
stumbled and
len had his ha:
on the old lad
the old man’s
“About that
younger wom
for the Virgin
Allen didn’t t
the old folks,
sacking the hy
got was out of
tell me about
torturing the
We knew, 1:
of the three }
ton atrocity
giving his car
a mysterious
had claimed.
But Peck’s |
Stark ample |
followed Patr
we would pr«
murderer. Bu
as this is writ
—a fugitive v
Lynch law,
threatening |}
Sheriff Sowers
for safekeepin
citizens of N,
and descended
at Robinson
thirty hastily
met them a :
son and persu
to their home:
The  remai
Others joined
the jail, dem:
ties and Stat
and tear-gas
them finally.
At Springfix
immediately c
lor, Acting C}
to Robinson t
One day, :
nard Weldam
er, both son
fiendish atta:
look over t!
Shelby, A!
Peck ‘were bi
fore them.
“This is the
tied you up
Annie?” Ben
dam asked |
The man he
was Harry §)

“WZ ASS, On
the man
sented broken
“And _ this
dam peered <
Allen sharply
man who
down Mam:
nie?”

“Yass, Onk!

Allen flinch
words of ide
came through
—lips still bi
purple from
agery of that

Weldam |!
Peck.

“This man
positively,
saw before.”

Miss Schra
Peck, she sai
been at th
that fatal ni
iff Sowers w
by the it
Too late, t
tion came

DOE & MEANS

——~

SYNOPSIS

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fut tborad To teed f Yr Asped » Seuistly tetlen all oye bebiey
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APPEALS

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Tlewton Public Library

NEWTON, ILLINOIS 62448

aii eet: ITM weniretrinnat det merle ninrne am a ema tt

eee ei, Shee i a

ar rr ee a i re ret i ee trp

a agree ame

gedy Scene

rs wre . . Te ‘Bedet ns,
| forture Victims And Tra

a. Geko st ‘

* Oy =

9 agi 3

nb ane Linens *

Bernard Weldeam and Miss Anna <chrader,
robhery, which resulted in the death of Mics
Mary Schrader, and s

rey mother, Mrs,


er,

i SHULER DPPOR AND PUBLISHER NEWTON, fLLINOIS, FRIDAY, OCTOBER 6, 1933

PUBLISHED EVERY TUESDAY AND FRUDAY

TORTURE SUSPECT DEAD

Atleged “Ringer Maw’ Died fron
Wounds, Monday

Victor Wright of Robinson, suspect
ed as being the “finger man” ine the
| torture murder of Mrs, Mary Schrader
pof St. Peter vicinity, died Monday,
atternoon from gunshot wounds re-
ceived a raonth ago. Wright was
shot by UUighway Policeman Don
Clark of Flora when he threatened to
shoot Albert Porter of Robinson, a
fellow officer.

Wright wags questioned by officers
following the death of Mrs. Schrader,
but was released. THe went to his
home, obtained a shotgun and threat-
ened to kill Officer Porter, It was
learned atler he bad been shot that
John Allen and Harold Peck in their
onfessions in which they told of the
third man in the murder of Mrs.
Schrader and the torture of her aged
brother Bernard Weldaim, and daugh-
ter Miss Mary Schrader, August 29,
described Wright. Later in amended
confessions, they told that Farl Stark
of Danville was the third man,

ceern cea, sins


EXECUTE SHELBY AND ALLEN i

Thirteen from Jasper Witnessed Their |:
Hilectrocution at 1:30 oo Bey Morning}

“Tf I.can’t sing this song, turn ‘er},

on, G D Y ,’ were the
last words of Harry Shelby before his.

execution at the Southern. Ilinois}.
penitentiary at Chester at-1:30 o'clock |
Friday morning. Defiant to the last,|
he went: to his death: without aid and
with a curse on his lips for the mur-|)
der of Mrs, Mary Schrader of near!’
Newton on August 29." John Allen, |
his companion,. “also. walked to the}
execution chamber without aid. Het
showed no more signs of. remorse thant i

Shelby.

The third prisoner executed was}:
Martin Grey, 28, of Macomb, Missis<|
sippi, colored, wha was sentenced}:
from Marion county for the slaying')’
of Mrs. Susie Gregory, Centralia}
negress, on July 12: He has con}:
fessed five murders in Tiinois, Mississ }:
sippi. Louisiana and Texas, and | to}!
having three wives in different: states},

besides arson and bank. robbery.

Thirteen persons fron: Jasper .coun- |!

ty were present for the . execution:.

State's Attorney Homer: Kassermann, }:
Sheriff C. M, Sowers, Deputy Sheriff |

George Watkins, Highway: Policeman

J. H. Brummer, Circuit Clerk Williams:
ii, Trainor, Ernest Benefiel, . Albert |:
Fehrenbacher, Paul Bulleit, George}:
Kasserman, and Leo Gregor of New-1)
ton, Oliver Cleaver of West Liberty, 4
foreman of the jury which convicted}

Shelby and Allen, James. Nash of
Wheeler and Joe Smith of Ingraham.

In addition, State’s Attorney Omer]

Lewis and Deputy Sheriff. William
Lamkins of Olney; Deputy. Fire. Mar-

shal F. D. Talley “of -Mount’ Carmel]
and: Sheriff FW. Ward:of.Vermilion}
county and several Danville officers, |
besides. Highway Policemen | Albert|:

Porter of Robinson, Marlow. Hull of
Palestine, Jesse.Shipley:of Oiney and

Archie Steppe of Dieterich, most of |
whom were witnesses’ or guards at
. the trial, were there. ;

Before going “to his death: Shelby

had a long talk with Sheriff Sawers. |

Ye expres ssed no animosity toward
him, saying "You only did your duty.”

Atter being masked and taken to the
execution chamber, be. was asked
“Gave you anything .to say,” By

way of reply. he started.to sing af

song which he had dedicated to the

oificers whe brought about his cap+|
ture and. conviction, In this he ex-]‘

Pe Cae ee

pa


é f ~
ion, Oliver Cleaver ot West Laverty, fC The )\MiwiDM Ket
foreman of the jury which convicted ~! , se
Shelby and Allen, James Nash of
Wheeler and Joe Smith of Ingrahain.
In addition, State’s Attorney Omer
Lewis and Deputy Sheriff William
Lamkins of Olney, Deputy Fire Mar-
shal F. D. Talley of “Mount Carmel
and Sheriff FW. Ward 6f- Vermilion
county and several Danville officers, |
besides Highway Policemen Albert
Porter of Robinson, Marlow Hull of
Palestine, Jesse Shipley of Olney and
Archie Steppe of Dieterich, most of |. ; ' @
whom were witnesses or guards at
the trial, were there. babies,
Before going ‘to his death, Shelby
had a Jonz latk with Sheriff, Sowers.
He expressed no animosity , townrd
him, saying “You only did your duty.”
Atter being masked and taken to the;
execution vlvumber, be was aske
“Have you anything to say,” By
way of reply. he started to sing 2
song which he had dedicated to the
officers whe brought abeut his cap+
ture nnd. conviction, In this he ex-
pressed uncomplimentary opinions of
them. He had rendered one stanza,
when the question was repeated. and
he answered “lf I can’t sing this
gong. turn ’er on ———."_ :
Alien 4h: hig tue was dpked' if. he}

if he
had anything to say, and: remarked,’
“Nothing, except that I'v not guilty,”
He is supposed to have iméant by: this,
in the twistéd mental attitude: of the:
hardened erlminal,. that he ‘hada’t.in-
flicted the. blow. that fraatured: “her |:
skull, for he admitted at iNewton |,
during and: after the ‘trial .and) at)
Chester since that he was with. Shelby}:
nnd assisted in the criminal :attacics |’
und tortures which accompanied: the |!
crime. Shelby has, said, "Me ahd my):
nephew (Alleny, did th! 8 ose!
Shelby recently has’ been) quite
garrulous and. has told of a number of
murders he committed, “-béstdés the:
killing of Newton ‘Cozad at Danville |
last Apfil and. Mrs. Schrader, Amang
these waa the murder of a man in the
railroad yards at: Minneapolld in 1913,
and a shooting ‘during a holdup ‘of a!
mail order house. Some, .of: these |)
stories are bellevdd' to he true and
others are dowhted. 9 2
Amorig, his last words ware to!
peat the assertion he made. to Judge |’
Jett atter the latter had, passed the
| sentence of death,on hint that, Vier}
Wright of, Robinson wag the tira

member of the gang and “ndt: Bark):
‘Stark of Danville, named in thie’ in-|
dictmont with him and Allen,’ Wight!
died from wounds in the abdomery In-}
flicted by a highway policeman. on
August $1, when he attempted to
shoot Officer: Porter at Robinson,

pe ee Gon aes, oe om
.

nn ee me

Qc er

—

Re TS

nt a eee ce ee

own, they | K Pega

to waist, |
sviminally attack

Lag



TUNvVCT a. a
ANDERSON HANGS
FOR LAVIN DEATH;
CALM AT THE END

Dennis Anderson, 21 years old, was
hanged in the county jail yesterday -
for the murder of Lieut. Patrick Lavin.
of the Chicago Junction railroad po-
lice. He went, to nis death
apparently indifferent to his fate, and
declared he had nothing to say before
he died.

‘When the Rev. Wiliam O’Brien of
the Holy Name cathedral hel out
a crucifix to him he kissed tt and a
second later he shot downwafd through
the trap. Twelve minutes after the
trap was sprung he was pronounced
dead.

The crash of the trap sent terror
to Anderson’s brother John, who fs be-
ing held tn the county jail for the
murder of John Eggert, a south side
saloonkeeper, a week . John ts
‘only 18 years old, and w the death
‘ceremony over his brother was taking
place he was attending the jail schoo!
in charge of John Connelly. When the
loud crash told John his brother had
plunged to his death, the youth fell
forward on the floor weeping. John
is going to plead guilty to his crime.
His brother when they bade each other
farewell Thuraday night advised him
not to “take a chance” with a jury.


Last-ditch
e appeal for
s, poison killer

By Charles Mount
TRIBUNE STAFF WRITER

‘0 After nearly 12 years on Death
_, Row, Charles Albanese may final-
(ly be nearing the end of the road
3< toward his execution for the poi-
soning deaths of three relatives,

his attorney said Friday.

Attorney Roger Webber urged
the 7th Circuit Court of Appeals
in Chicago to overturn Albanese’s
convictions for the arsenic poison-
ings in 1980 and 1981 of his father,
mother-in-law and wife’s grand-
mother on grounds that a now-de-
funct Illinois Department of Pub-
lic Health toxicology lab lacked
internal control over material
being tested.

But after unsuccessful appeals
to six courts, including three
times to the Illinois Supreme
Court and once to the US. Su-
preme Court, Webber said Al-
banese, now 56, has just about ex-
hausted his appeals.

The last four rejections came on
the issuefof the lab’s alleged ineffi-
ciency. ©

Albanese, formerly of Spring
Grove, was sentenced to die by.
Judges Henry Cowlin of McHenry
County Circuit Court and Law-
rence Inglis of Lake County Cir-
cuit Court in separate trials. The
murders were committed,
prosecutors contended, so that he
could regain control of Allied Die
Casting Co., a family-owned tro-
phy-making business in McHenry.

Albanese was $20,000 in debt
and had been demoted from presi-
dent to treasurer by his relatives.

He also was convicted by the
McHenry jury of stealing $38,000
from the firm’s coffers and stood
to inherit: more than: $72,000 from
the victims. oo

The federal appeals court took
the case under advisement after
oral arguments Friday and is ex-
pected to rule in about two
months. If the 7th Circuit follows
the pattern of the other courts and
rules against Albanese, only a sec-
ond appeal to the U.S. Supreme
Court is left unless another issue
is found, Webber said.

“I would be surprised if the U.S.
Supreme Court takes the case be-
cause they refused once before
and they take only a few of sever-
al thousand appeals each year,
mainly conflicts between state and
federal courts, questions on how
to interpret federal law and new

, legal questions,” Webber said out-

side court.

“If the Supreme Court refuses, it
looks like the end of the road,”
said Webber, a court-appointed at-
torney from Urbana.

Webber argued that the state lab
was closed because it botched an-
other arsenic case in 1984 and that
Albanese’s trial attorney failed to
adequately follow up “rumors” of
the lab’s inefficiency.

“If you take out the assumptions
that the victims died of arsenic, it
doesn’t matter that Albanese had
gotten arsenic from a friend
[shortly before the deaths] or that
he had financial problems,” Web-
ber said after the arguments.

However, U.S. Appeals Judge
Ilana Diamond Rovner reminded
Webber during questioning that
the lab’s problems surfaced at
least two years after tests in the
Albanese case, and that those find-
ings “don’t taint every case.”

(

hese are the men on Illinois’
Death Row, the convicted mur-

_ derers sentenced to the state’s
maximum punishment for killings that
involved more than one victim, children,
public officials, prison inmates or were
committed with other crimes.

The prisoners below, listed with their
Cuirent ages and in order of their sen-
tencings, are in various stages of appeal-
ing their cases. None, however, has had
his death sentence replaced, according to
the Illinois Department of Corrections. °

1] John Szabo, 22. Fatally shot and |
stabbed brothers John and Christopher
- Rajca, 19 and 17, Jan. 27, 1979, during a |
drug deal south of Naperville. :

2 George Delvecchio, 42. Slashed the
throat of a Sepia Tony Canzoneri during a
Northwest Side home invasion Dec. 22, 1877.

3] James Free Jr., 36. Fatally shot Bonnie
Serpico, 34, of Glen Ellyn, after raping her
and another woman April 24, 1978, in a Glen
Ellyn factory.

: abducted Goldstone March 30, 1$78,
from near the hospital and drove around for
26 hours with her in his trunk before shooting
her to death. aces

6] John Wayne Gacy, 47. Convicted of 33
counts of murder after authorities discovered
29 bodies of young men and boys buried in
the crawl space of his Norwood Park Town-
ship home in 1978. Authorities also found
four other bodies in the Des Plaines River,
where Gacy said he had thrown them.

7 and 8] Juan Caballero, 29, and Luis
Ruiz, 30. Stabbed and slashed to death Mi-
chael Salcido, 17; Arthur Salcido, 19; and
Frank Mussa, 16, Feb. 24, 1979, in a North
Side alley following a dispute over gang af-
filiations.

9] Andre Jones, 34. Killed East St. Louis

we.
ve Se;

Chicags Tri fune
On Illinois’ Death Row, 125 murderers face the ultimate punishment

Se  Silagy
cleaning store owner Samuel Nersesian and.~
mail carrier Debra Brown in, ah April 30, ;
1979, shooting spree. ~*~  ’

10] Duriynn Eddmonds, 38. Smothered 9 -
year-old Richard Miller while raping him Oct. _

24, 1977, in a South Side apartment. ~

11] Charies Silagy, 40. Choked, stabbed
and stomped to death his girlfriend, Chery!
Block, 32, and her sister, Anne Waters, 29,
Feb. 14, 1980, near Danville, after quarreling
with Biock for attending a male strip show. ~

12] Walter Stewart, 3s. Fatally shot Danilo
Rodica, 39, and Thomas Paviopdéulous, 27,
Feb. 10, 1980, while robbing a Berwyn jewel-
ry store. ; ;

13] Dennis Emerson, 38. Stabbed-twopeo-.,
ple Aug. 13, 1979, insice a South Side lounge...

during a robbery, then set fire to the building,
killing one of the stabbing victims,“Delinda
Byrd, 22. ;

14] Girvies Davis, 32. Murdered:Charies:
Biebel, 89, Dec. 22, 1978, and Esther Sep-

meyer, 83, July 13, 1979, during robberies of .

their homes near East.St..Louis. :

15] Larry Mack, 35. Fatally shot “bank :
guard Joseph Kolar, 59, Nov. 23, 1979; on
the South Side. . ee :

16] Derrick King, 33. Shot and killedisales

clerk Dwaine Miller, 17, Dec. 19, 1979, during ;
“a robbery of a South Side candy store. S

17, 18 and 19] William Bracey, 49; Roger

Collins, 42; and Murray Hooper, 44. Fatally’ s

shot Frederick Lacey, 35; -R.C>Pettigrew, 41;
and Richard Holliman, 28, Nov. 12,'1980, in‘a
South Side viaduct in a dispute over money

Brisbon
_the Victims owed= :
.- 20] Rebin Owens, 29. Used a hammer to

fatally bludgeon Arfrazia Hodges, 38, Dec.
18, 1980, during a home invasion and rob-

bery in Kankakee:
21 and 22] Harold Bean, 51, and Robert
Byron, 43. Convicted of the Feb. 17, 1981,
murder-for-hire of Dorothy Polulach, 81, a
Southwest Side. widow. Bean, disguised as a
priest, entered Polulach’s home, handcuffed
her and shot her.
-, 23] Tafford Holman, 41. Fatally shot Antho-
ny Townsend, 17, during a Feb. 21, 1980,
home invasion in Joliet. s
1 24] Henry Brisbon, 34. The “I-57” killer

_Sentenced to 1,000 to 3,000 years for the

1873 murders of a Chicago couple, Brisbon
received the death sentence for fatally stab-
bing Richard ‘‘Hippie” Morgan, 31, a fellow
inmate at Stateville prison Oct. 19, 1978.

‘' 25] Charles Albanese, 53. Fatally poisoned
his mother-in-law, Marion Mueller, 69; his
wife's grandmother, Mary Lambert, 89; and

his father, Michael, 69; by lacing their food
.with arsenic in 1980 and 1981 in McHenry

and Lake Counties. Albanese wanted to
inherit his relatives’ money and take over the
‘family business.

<2 26] William Jones, 35. Stabbed Margaret
Dare to death during a Jan. 25, 1982, burgla-
ry.of the elderly woman’s rural Jefferson -
County home. :

; ,27] Gregory Madej, 31. Raped and
Stabbed to death Barbara Doyle, 38, after
meeting her Aug. 22, 1982, at a North give

Albanese

Stendhy

: Walker

‘ favern.

28] Willie Thompkins, 40. On Dec. 22,
1980, shot Gerald Holton, 31, and Arthur
Sheppard, 39, two Markham drug dealers
who had been infringing on the territory of a
drug-selling gang with which Thompkins was
affiliated.

29] Raymond Stewart, 33. Fatally shot
Rockford grocer William Fredd, 54, and
stockboy Aibert Pearson, 20, Jan. 27, 1981.
The murders were the first of six Stewart
committed within a week in Rockford and
Beloit, Wis., during robberies. In 1971, Fredd
had testified against Stewart in an armed-
robbery case.

30] Edgar Hope, 31. Murdered Chicago
police rookie James Doyle, 34, Feb. 5, 1$82,
on a South Side bus as Doyle and his part-
ner tried to arrest Hope for suspicion of bur-
glary. Police later found a gun in Hope's
apartment that they used to convict him for
the Jan. 11, 1982, slaying of Lloyd Wyckliffe,
35, a guard at a South Side McDonald's.

31] Johnny Neal Jr:, 44. Used a pipe to
fatally beat Lillian Waid, 63, a Waukegan
widow, in.an Aug. 19, 1982, robbery.

32] Perry Olinger, 42: Stabbed and shot
James Adams, 31; Gordon Stevens, 36; and
Debra Bushman, 25, May 25, 1982, during
robberies in Sterling and Rock Falls.

33] Samuel Morgan, 43, Shot and killed
acquaintances Kenneth 'Merkson, 24, and
William. Motley, 28,.Jan.:28,,1982, after con-.
suming large amounts of drugs in a North
Side apartment. 4 as

ia
eo

G —

7 TO

34] Domingo Perez, 30. Stabbed fellow
Stateville prison inmate Ronald Kleis, 21, to
death Apnil 16, 1981, during a gang-related
fight.

35] Ulece Montgomery, 33. Raped and
strangled his landlord, Pearl Briggs, 72, and
her sister, Betty Tyson, 68, April 25, 1981, in
Robbins. :

36] Anthony Guest, 44. A Missouri prison
escapee seiving a iife sentence for a murder,
Guest was caught Feb. 5, 1982, shoplifting a
toothbrush and toothpaste from a West Side
grocery store. After being led to the
manager's office, he opened fire, killing Jghn
Geever, 23, a store employee.

37] John Whitehead, 40. Kidnapped and
strangled Vickie Wrobel, 5, a girl from his

Joliet neighborhood Aug. 9, 1982.

38] Paul Erickson, 33. Raped and stabbed
Elizabeth Launer, 15, of Arlington Heights
July 31, 1982, after she. refused to have sex
with him following a party.

39] Anthony Porter, 32. Shot and killed
Jerry Hilliarc. 18, and his fiance, Marilyn
Green, 19, Aug. 15, 1982, during a robbery at
Washington Park on the South Side.

48] Charles Walker, 50. Looking for beer
money, Walker robbed and shot Kevin Paule,
21, and his fiance, Sharon Winker, 25, of
Mascoutah, while the couple fished in a St.
Clair County creek June 18, 1983.

41] Patrick Wright, 47. Broke into a Mat-
toon apartment June 7, 1983, and slashed to
death Caro! Specht. 44. Wright, diagnosed
later as suffering from a psychosexual disor-
der, testified that he broke in searching for
women's shoes.

42] Willie Enoch, 36. Raped and murdered
Armanda Kay Burns, 25, April 22, 1983, in
her Peoria apartment.

43] Donald Lego, 58. Stabbed and beaf to
death Mary Mae Johnson, an 82-year-old
Joliet widow, during a burglary Aug 25, 1983.

44] Anthony Hall, 31. While in Pontiac state

‘prison for robbery, he fatally stabbed prison

cook Frieda King, 50, Feb. 8, 1983.
45] William Young, 40. While in Stateville

“prison for murder, he strangled and stabbed

fellow inmate Brian Jackson March 31, 1983,
in a gang dispute. :
46] Floyd Richardson, 35. Shot grocer

See Death Row, pg. 4.

é

}


Chicago Tribune, Friday, April 7, 1995 Section 2 a

Court asked for date
of killer’s execution

m@ McHenry: The Illinois attorney general on

_ Thursday asked the Illinois!Supreme Court to set

an execution date’for Charles Albanese, who was
convicted 12 years ago in the poisoning deaths of
three relatives. . {

A spokeswoman for Atty. Gen. Jim Ryan said
phe that Albanese’s appeals are exhausted
t his execution most likely will take place

on whatever date the linois Supreme Court sets,

Last February the U.S. Supreme Court denied
Albanese’s request. to prevent his execution for the
arsenic poisonings in 1980 and 1981 of his father,
mother-in-law and wife’s grandmother in a scheme
~ to take over the. family’s trophy-making business

_in McHenry. He was sentenced to death by Judges
Henry Cowlin of McHenry County Circuit Court
and Lawrence Inglis of the Lake County Circuit
Court in separate trials. Two trials were necessary
because one victim died in Lake County. |

' Albanese was’ $20,000: in debt and had been de-

moted by his relatives from the office of president
of Allied Die Casting:Co, to: treasurer before the
murders. He also was convicted of stealing $38,000
from the company. Albanese’s ‘latest appeal: was on
_the grounds that'a now-defunct Illinois Department
- of Public Health toxicology lab lacked internal con-
trols ‘over tested materials: But prosecutors argued
|. that the lab’s problems isurtaped at least Lip Neate

after tests. in the Albanese case.»

ey % spokewoman. for Dlinois Atty. ‘Gen!i3iin’ Ryan
said the Supreme Court is expected 'to schedule the
execution about six months from now.

a ;

OY 7 ‘es neni Joe Sjostrom

—_ >
a-44 -
‘


r4 re]

t . : a9 Pai eB fy
JOu 26- Y fittitn ere
living on death row at Menard Cor-

by Susan Buerksen
Hocald stoit ertter

The Tlinois Supreme Court Friday
uphe!d a second death sentence for
Charles Albanese, who was convicted
of the arsenic murders of his father
and to other relatives.

The court set an execution date of
March 12, 1995, far Albanese, who is

Albanese

af Oe
by Diane Dungey /o /
87

Herald statt writer

The U. S. Supreme Court Tuesday
turned down the appeal of death row
inmate Charles Albanese, who was
found guilty of fatally poisoning three
family members with arsenic in 1980
and 1981.

The court left intact the murder
conviction, which had been upheld in
February by the Ilinois Supreme
Court. U.S. Supreme Court justices
William Brennan, Jr., and Thurgood
Marshall dissented, stating their be-
lief that the death penalty is “cruel
and unusual punishment” and prohi-
bited by the U.S. Constitution.

ALBANESE WAS sentenced to

Fig
death in 1982 after he was found
guilty in McHenry County of murder-
ing his father, M.J. Albanese, and his
wife's grandmother, Mary Lambert.

ids

He also was convicted of attempt-
ing to poison his brother, Michael Al-
banese of Arlington Heights, and of
stealing from the family’s trophy-
making business, Allied Die Casting
Corp.

In a separate Lake County trial, Al-
banese was given a second death sen-
tence after he was found guilty of
murdering Marion Mueller, his
mother-in-law.

Prosecutors charged that Albanese
fed his relatives arsenic in meals and
on cookies afier he came up with the

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banese, convicted of

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ft

death sentence

Cx,
money-making scheme to pay off a
delinquent home mortgage and pay
overdue child support and a bank
loan.

LAMBERT AND Mueller were
hospitalized in 1980 after eating a
Sunday dinner at Albanese’s Spring
Grove home. Both died within a
month, but arsenic was not pinpoint-
ed as the cause of death until the bod-
ies were exhumed a year later.

M.J. Albanese died in 1981, but not
until after Charles Albanese = ar-
ranged to have Allied Die Casting’s
shareholder agreement changed to
promote himself to vice president of
the firm.

McHenry and Lake county coron-

k

upheld

ers originally decided to investigate
the case after mecting at a conven-
tion and comparing notes about the
unexplained deaths.

During the trials, Albanese con-
tended that Michael actually had poi-
soned their father and then poisoned
himself to make it appear Charles
was the murderer.

But the courts rejected the claim,
saying Charles did not explain how
Michael could have poisoned his fa-
ther when Michael was so crippled by
arsenic poisoning that he could not
even sign his name.

Albanese said he obtained arsenic
to kill wild animals that scattered
garbage over his vard

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rectional Center. The decision is ex-
pected to be appealed to the U.S. Su-
preme Court, which declined last
week to review Albanese’s appeal of
his first death sentence.

Albanese was initially sentenced to
death by a McHenry County jury in
1982 for the poisoning deaths of his
father, M.J. Albanese, and his wife’s

grandmother, Mary Lambert. In the
second case, tried separately in Lake
County, he was convicted and sen-
tenced for the murder of his mother-
in-law, Marion Mueller.

Prosecutors charged that Albanese
committed the murders and the at-
tempted poisoning of his brother, Mi-
chael Albanese of Arlington Heights,
in order to take over the family tro-

phy-making business and win other
inheritances.

ASSISTANT LAKE County State’s
Attorney Ray McKoski said the sec-
ond death penalty is intended as “a
backup” in case the first conviction
or sentence was overturned on ap-

peal.

There is no scheduled execution ~

date for the first case because Al-

sentence

banese has applied for a stay, said
Assistant McHenry County State's At-
torney Gail Moreland.

In its 23-page opinion, the state su-
preme court reviewed and dismissed
a litany of objections Albanese raised
to his conviction and sentence in
Mueller’s death.

“The state has clearly established
that Charles Albanese plotted and

for Albanese

carried out this murder for financia
gain,” the court wrote, ruling that ev
idence and concluding remarks in the
trial, as well as the decision to try the
cases separately, were proper.
Justice Seymour Simon filed a dis-
sent, repeating his belief that the
state’s death penalty is unconstitu-
tional. He agreed in the decision to
affirm Albanese’s murder conviction.

statements made by the defendant after
being placed under hypnosis were the
product of hypnotically-induced sugges-
tiveness and theréfore unreliable and
inadmissible.

The defense lost the ruling in that
pre-trial hearing when Judge H. Ches-
ter Goudy Jr. declared that Finke’s
statments had been made voluntarily
and that they were admissible as evi-
dence. But the defense was feisty and
though it had lost that round, it pre-
pared for another battle over the ques-
tion of a change of venue.

“In this unique case,” they petitioned,
“where the prejudicial publicity goes
not only to allegations of guilt but to
publications of guilt in fact as found by a
Circuit Court jury and to publications of
the life sentence by the Circuit Court
flowing from the jury’s guilty verdict,”
it was impossible to get a fair trial
within Anne Arundel County. The
judge disagreed and the trial went
ahead as scheduled.

Testimony in the second trial was
similar to that in the first one, with only
a few exceptions. Testifying for the
state, Ronald Norton changed his ac-
count. He said that while he recalled
sitting in his truck in the parking lot
while Allen Finke left for ten minutes,
he could not pinpoint the exact date.
when this had happened. That is, he
didn’t know whether it was on the day of
the murder or not.

This time also, Finke had an alibi
witness who said he saw the defendant
at Finke’s father’s house at the time of
the murder.

And finally, Finke did not testify i in i

his own defense, as was his right.

However, the state succeeded over de-
fense objections in having Finke’s tes-
timony from his first trial read into the
court record before his second trial tes-
timony; as a court’s exhibit he did not
have to. -

Clearly the rulings from the bench
were not going in favor of the defense.
Having admitted testimony from a pre-
vious trial that was vacated into a sec-

ond trial on the same charges Judge >

Goudy also refused to allow a defense
psychiatrist to testify before the jury on

the voluntariness of Finke’s statements

_ to the police.

During the closing arguments, De-
fense Attorney Walter Madden used a
glass of water and an eyedropper of
iodine to illustrate that the state’s case
was not as clear-cut as it would have the
jury believed.

Every time he would point out what
he saw as an inconsistency in the state’s
case he would put a drop of iodine in the
water. “The state has a real problem
trying to prove Finke killed the aunt he

loved,” said Mr. Madden. “It’s like

French poetry. Something got lost in the
translation.”

60 Official Detective

Calling each of the jurors “ve name,

Bs) thay

ptt
}

Mr. Madden asked them, to “free Allen
Finke and let him go as “evidence that

our system of justice is alive and well.”
Deputy State’s Attorney Anders re-

‘plied, “What really happened in that

house nobody knows but Allen, but
what started out as-a simple breaking
and entering—through a complicated

‘chain of events—turned into a brutal

murder...There is no evidence that
Allen touched anything or lost any hair
in the house,” Mr. Anders conceded,
“but that does not indicate he didn’t
commit the crime. He just didn’t leave
any prints or hair.”

As the jury filed out to consider its
verdict, the defense was somewhat more
confident that the verdict would be in its
favor, and the state somewhat less con-
fident than the first tine. The increas-
ing time that the deliberations
lasted—over six hours, or twice as long
as in the first trial—bolstered the hopes
of the defense.

It was half an hour past midnight on
April 28, 1982 when the jury filed in and
announced its verdict. Allen Glen Finke
was guilty again of stabbing his aunt to
death in the course of breaking and en-
tering. Thus he was guilty of felony
murder, and declared not guilty of sec-
ond degree murder and manslaughter.
The defendant sobbed openly, and then,
with tear-streaked face, thanked the
many friends and family members wo
had been with him. during his trial.

’. Then he was led away in handcuffs by

sheriffs deputies. — *

Though they had lost again, defense
counselors announced they would again
pursue the yproneee of appeals. Mr. Mad-

den said he could not wait for an appel-
late court “to sink its teeth” into the
various procedural rulings made from
the trial bench.

Defense Attorney Sharp, who once
served as the supervisor of criminal pro-
secutions in the Maryland Attorney
General’s. Office, remarked that this
was the most unusual criminal case he
had ever worked on, either as a pro-
secutor or as a defense counselor. He

‘said that one of the arguments that they

intendéd to pursue in the appeals was
that the state had not presented any
evidence that Finke had committed the
crime of breaking and entering, and
that if Finke had entered the house, his
aunt may have let him in voluntarily.
If his client’s conviction on that
charge could be overturned, Sharp
reasoned, his conviction on the felony
murder could also be overturned, since
the latter follows a consequence from
the former. And because of his acquittal
on the other murder charges, Finke’s
constitutional protection against dou-
ble jeopardy might allow him to become
a free man.
Thus resolved twice in verdicts of
guilty, the three-year drama of Allen
Finke and his late Aunt Liddy may yet
have several more acts to go before it is
finished playing. kk

EDITOR’S NOTE:

Ronald Norton is not the real name
of the person so named in the forego-
ing story. A fictitious name has been
used because there is no reason for
public interest in the identity of this
person.

. .Murder by Arsenic

cause Albanese had no access to arsenic.
It wasn’t used | in his manufacturing
plant.

Hrodey. ‘took the information he had
gathered to State’s Attorney Floro. The
three deaths and the illness of Mike Jr.,

with symptoms almost identical to -

those that claimed his father’s life, ap-
peared to be strangely suspicious, but
there was no real evidence of foul play.

“All I can say is that Chuck, the alder
brother, is in good health, and enjoying
the money he got from the deaths of his
wife’s. mother and grandmother,”
Hrodey reported.

He related that his investigation had
turned up information that prior to the
“deaths of. Marion Mueller and Mary
Lambert, it was known that Charles
Albanese was in financial trouble. The
family business was good but he appa-
rently was living beyond his: means
with the luxurious home, expensive
cars and frequent ik Sole tae There was
also the fat that Virginia was his

as- paying support

(from page 35)

money to his two previous wives and
their children.

Hrodey said the couple had sold the
condominium owned by Virginia’s
grandmother. It brought enough to pay
off most of'their debts and a vacation
trip to Europe..

Floro frowned as he listened to
Hrodey’s report. “You know what you
are implying,” he said. “But would a
man, even in dire financial shape,

_ poison his own father and brother?”

Hrodey shrugged. “I’m not saying he
did,” he replied. “I’ve just given you
the facts. But there’s one way we can
find out for sure.”

Hrodey suggested they go to the
physician treating Mike Jr. with their
suspicion that his patient might be suf-
fering from being slowly poisoned. The

physician could check it by taking

fingernail clippings, hair and fluid
samples to a toxicologist to determine
whether or not arsenic was present in
the body. .

Floro agreed. If it was found that

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Mike Jr. hz
next step \
order to h:
Albanese, °
bert exhun
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the bodies,
having a c:
charged.
“It’s one '
an entirely
Floro said
you right n
nic was av:
put it int
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When th
Jr. was in{
his patient
senic pois¢
said he hac
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Illinois De
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Jorge Pir] «
sive amou:
they teste
the arseni:
amounts o

The rep«
Floro to ol
cuit Judge
the bodies
Mueller a:
were take!
for exam
Spikes an:

Meanw!t
the Alban
formation
left the bu
The estate
$300,000 ;
policy.

“The wi
told Hrod:
pect, what
his father

Hrodey
answer to
from a con
had talkec
ing a wart
grand the

The in:
Chuck ha
metal fro
and recei\
out to hi


Babcox explained that less than two
weeks after Mrs. Lambert had died in
McHenry, her daughter Marion Muel-
ler had died in Waukegan. Mrs. Muel-
ler had been 69 years old and was also a
wealthy widow.

As in the case of Mrs. Lambert,
neither the attending physician or fam-
ily had requested an autopsy, so the
coroner’s office was involved only to the
extent of recording the death.

“But I heard about her mother dying
and they’d both been visiting Mrs.
Mueller’s daughter in Spring Grove
prior to the time they suddenly took ill,”
Babcox said. “I wondered at the time if
there might be some connection bet-
ween the deaths, maybe food poisoning
or something like that, and I was going
to call you but then other things came
up.”

Querhammer said he hadn’t known
that Mrs. Lambert’s daughter had died
within such a short time of her mother’s
death. He asked about the daughter and
granddaughter the two women had
been visiting in Spring Grove.

“As I recall, the name was Albanese,”
Babcox. “I had planned on calling
them to see if anyone else had become
ill, but then other things came along
and it sort of skipped my mind until

34 Official Detective®

Charles Albanese, 44, shown here in custody, was charged with the arsenic
murder of father, Michael, 69, plus those of Mrs. Lambert and Mrs. Mueller

now. Yes, the name was Albanese.”

“Albanese!” Querhammer exclaimed,
then added, “I wonder if maybe we may
-be on to something.”

He explained that the Albanese qere
a well known family in McHenry
County. Michael Albanese had founded
the Allied Die Casting Corporation that
manufactured award trophies that were
sold worldwide. Their plant in McHenry
employed a large number of persons.

Querhammer said that shortly before
he left McHenry to attend the conven-
tion, Michael Albanese had died, on
May 16th.

“I knew Mike Albanese pretty well,”
Querhammer said. “He was getting
along in age, sixty-nine, I think, but up
until six months ago he was a healthy,
active man. Then something hit him.
He became crippled, then bedridden and
[heard that in his final days, they had to
feed him with a tube.”

Querhammer said that his interest in
the death was that while physicians
thought Albanese had suffered from
stomach cancer, he wondered if it might
have been caused by some chemical
used in the casting of trophies.

“The reason I thought about it was
that his younger son, Mike Junior,
seems to be afflicted with the same

thing,” Querhammer said. “I saw him
only a short time ago and he was on
crutches and thin as a rail, just the way
his father went.”

“Neither the family or the physician
requested an autopsy?” Babcox asked.

The response ~was_ negative.
Querhammer said that legally he
couldn’t have a post mortem performed
without the permission of the family or
specific evidence to indicate that death
had been caused by means other than
natural. He said that since only Al-
banese and his son had been stricken by
the strange malady, he had intended to
wait and see if other persons working in
the trophy manufacturing plant might
become ill as the result of some chemical
being used.

The coroners discussed the series of
events that might only have been coin-
cidences, except that the two wealthy
widows had died suddenly after visiting
the Albanese family in Spring Grove
and the elder Albanese had taken ill
and died and his son was afflicted.

They determined to check more
closely on the cases when they returned
from the convention.

Queries produced the information
that the large estate of Mrs. Lambert
had been willed to her daughter, but
when she died, it had passed on to her
daughter Virginia, who was the wife of
Charles Albanese.

The senior Albanese had two sons,
Charles, who was 44 and Michael Jr.,
34. Following the death of their father,
Charles had become president of the
company and Mike Jr. secretary-
treasurer. There were rumors that the
two brothers didn’t get along very well
but managed to successfully operate the
prosperous business created by their
father.

The two coroners went to State’s At-
torney Floro with the information they
had gathered. They pointed out the pos-
sibility that someone might be attempt-
ing to wipe out the Albanese family to
get control of the family business and
fortune.

“That’s a pretty serious accusation,”
Floro told them, particularly since
Charles Albanese appeared to be the
only member of the family in good
health. He was a highly respected
businessman, lived in a $200,000 home,
complete with a swimming pool, drove
expensive cars and vacationed in
Europe.

“If it just happens to be true, it’s also a
pretty serious situation,” Querhammer
said.

Babcox added, “We aren’t pointing
the finger of suspicion at Charles Al-
banese. He might be next on the hit
list.”

“Which would bring it down to Al-
banese’s wife?” Floro asked.

“Not necessarily,” Babcox countered.

“Tt could be another relative, or possibly -

anyone. W:
deadly plot
“What
Floro askec
The cor
bodies of M
and Alba
mortems |
ples sent t
Floro pi
impossibl:
reed or the
indicate th:
other than
order could
“It takes
that foul p
court order
that he as
Robert Hr
tion the c
wait to see \
Hrodey |
physicians
had cared f
tal in McH
learned ti
the hospit
cramps, d!
been susp¢
food poisor
A check
granddaug!
daughter
learned she
night and h
she return
McHenry ::
The grar
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and sauerk
a common }
of the fami
meal. She |
and coffee
eaten aga
The info:
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pital for tw
exact causi
diagnosed |
felt that sh«
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which in tu
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later her d:
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vho once
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the felony
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verdicts of
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But would a
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t given y'
Way we can

go to tne
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night be suf-
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oe ILO

order to have the bodies of the senior

his patient might be suffering from ar--

Mike Jr. had arsenic in his system, the
next step would be to obtain a court

Albanese, Mrs. Mueller and Mrs. Lam-
bert exhumed. Floro pointed out, how-
ever, that even if arsenic was found in
the bodies, it was still a long way from
having a case in which anyone could be
charged.

“It’s one thing to suspect murder, but
an entirely different thing to prove it,”
Floro said. “The number one thing for
you right now is to find out where arse-

nic was available. Then, to see if we can}

put it into somebody’s hand. Mean-

while, Pll contact Mike Jr.’s doctor.”
When the physician attending Mike

Jr. was informed of the suspicion that

senic poisoning, he was skeptical. He
said he had not been able to completely
diagnose his patient’s illness, although
he complained of being nauseous, a
burning sensation in his stomach and
his joints stiffening so that he had to
walk with a cane. And while they were
symptoms of arsenic poisoning, he
found it difficult to believe that it could
be deliberate.

“If we do find arsenic poisoning,” the
physician said, “it may have come from
some accidental source, particularly ifit
contributed to the death of his father.”

The physician obtained specimens
from Mike Jr. which were sent to the
Illinois Department of Public Health
where toxicologists John J. Spikes and
Jorge Pirl determined there were exces-
sive amounts of arsenic in the samples
they tested. They stated it was likely
the arsenic had been ingested in small
amounts over a period of time.

The report was sufficient evidence for
Floro to obtain a court order from Cir-
cuit Judge Jack Hoogasian to exhume
the bodies of Michael Albanese Sr., Mrs.
Mueller and Mrs. Lambert. The bodies
were taken to the Lake County morgue
for examinations by toxicologists
Spikes and Pirl.

Meanwhile, the quiet investigation of
the Albanese family produced the in-
formation that the senior Albanese had
left the bulk of his estate to his widow.
The estate was estimated to be well over
$300,000 plus a $200,000 life insurance
policy.

“The widow is in good health,” Floro
told Hrodey. “So, if Charles is our sus-
pect, what would he have to gain from
his father’s death?”

Hrodey said he thought he had an
answer to the question. He had learned
from a confidential Source that Mike Jr.
had talked to an attorney about obtain-
ing a warrant to charge his brother with
grand theft.

The informant had told him that
Chuck had been secretly selling scrap
metal from the manufacturing plant
and receiving payment by checks made

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Official Detective 61

.“T saw him
d he was on
, just the way

the physician

3abcox asked.

negative.
legally he

n performed
the family or
te that death
1s other than
nee only Al-
n stricken by
.d intended to
ns working in
> plant might
»me chemical

the series of
ive been coin-
two wealthy
after visiting
Spring Grove
.ad taken ill
afflicted.
check more
they returned

information
Mrs. Lambert
jaughter, but
ssed on to her
is the wife of

1ad two sons,
1 Michael Jr.,
f their father,
ssident of the

secretary-
nors that the
yng very well
ly operate the
ited by their

State’s At-
yrmation they
ed out the pos-
ht be attempt-
.ese family to
business and

s accusation,”
ularly since
red to be the
mily in good
y respected
200,000 home,
ng pool, drove
:cationed in

ue, it’salsoa

Querhammer

ent pointing
Charles Al-
yn the hit

down to Ali

x counte
e, or possibly

f

anyone. We haven't any idea, if this is.a
deadly plot, just how far it goes.”

“What do you plan to do about it?”
Floro asked.

The coroners suggested that the
bodies of Mrs. Lambert, Mrs. Mueller
and Albanese be disinterred, post
mortems performed and tissue sam-
ples sent to a toxicologist.

Floro. pointed out that this would be.

impossible unless family members ag-
reed or they had sufficient evidence to
indicate the deaths had occurred from
other than natural causes and a court
order could be obtained.

“Tt takes more than just a suspicion
that foul play may be involved to get a
court order,” he told them. He suggested
that he assign his top investigator,
Robert Hrodey, to check on the informa-
tion the coroners had uncovered and
wait to see what he could come up with.

Hrodey began by questioning the
physicians and hospital attendants who
had cared for Mrs. Lambert in the hospi-
tal in McHenry prior to her death. He
learned that she had been brought to
the hospital suffering from stomach
cramps, diarrhea and vomiting. It had
been suspected she was suffering from
food poisoning.

A check had been made with her
granddaughter, with whom she and her
daughter had been visiting. They
learned she had been there only over-
night and had become violently ill when
she returned to her condominium in
McHenry in the morning.

The granddaughter recalled that the
evening meal had been Polish sausage
and sauerkraut. It had been served from
a common platter and no other member
of the family had been affected by the
meal. She had consumed oatmeal, toast
and coffee for breakfast. She hadn’t
eaten again until she took sick.

The information appeared to elimi-
nate food poisoning. She was in the hos-
pital for two days before she died. The
exact cause of her death had not been
diagnosed but, because of her age, it was
felt that she might have become ill from
overeating the rich and spicy Polish
sausage and the gaseous sauerkraut,
which in turn caused her to have a heart
failure.

The physicians and attendants at the

hospital were unaware that 12 days ©

later her daughter had entered a hospi-
tal in Waukegan and had died.

Hrodey went to Waukegan to ques-
tion physicians and employes at the
hospital where Mrs. Mueller died. It
was nearly a duplication of the informa-
tion he had gleaned at the hospital in
McHenry.

Hospital personnel recalled she had
been very sick when brought in. It was
known that she had been shocked and
deeply grieved by the death of her
mother. The symptoms indicated possi-
ble food poisoning. When the 69-year-

old woman.succumbed, her death had
been diagnosed as kidney failure.

Returning to McHenry, Hrodey
checked with the physician who had at-
tended Michael Albanese. The doctor
was frank in saying he did not know
exactly what had contributed to the
death of his patient.

“For his age, up until about six
months before he died, he was a strong,

healthy and active man,” the physician |

said. “When he first came to me he com-
plained of feeling tired, listless and his
bones ached. I told him it was probably

-because he was working too hard and

suggested he take it easy for awhile and
let his sons run the business. I wanted
him to go away for awhile on a vacation,
but Mike wouldn’t hear of it. His busi-
ness was his life and he felt he had to be
there to run it.” '

Whatever afflicted Albanese, it be-
came progressively worse. Joints in his
fingers, arms and legs became swollen

and stiff to the point that he could
scarcely walk or hold any kind of a uten-
sil. It was thought at first that he might
be crippled by. arthritis.

The doctor said that he suspected Al-
banese might have been poisoned by
some chemical used in his factory for the
manufacture of trophies. A check was
made. Nothing was found that could be
suspected, particularly since no one else
at the factory had been affected.

When Albanese became so ill that he

had to be kept in bed and finally taken

to the hospital where he was fed
through a tube, the diagnosis had been |
possible stomach cancer. At the request
of the family, however, there had not
been an autopsy.

When asked if the various symptoms
Albanese had suffered could have been
caused by arsenic poisoning, the physi-
cian said it was possible. However, it
hadn’t occurred to him at the time be-

(Continued on page 60)

%

er

Coroner Robert Babcox: To him, the “natural deaths” didn’t appear to be natural
. °

Official Detective 35


ALBANESE v. McGINNIS 547
Cite as 823 F.Supp. 521 (N.D.III. 1993)

duces conviction prone juries-in violation of
both the fair-cross-section and impartiality
requirements of the Sixth and Fourteenth
Amendments. Jd. at 1323-24. A divided
appellate court affirmed. Grigsby v. Mabry,
758 F.2d 226 (8th Cir.1985) (en banc).

~The Supreme Court reversed, after consid-
ering in detail the social science studies re-
lied on in the lower courts. Lockhart v.
McCree, 476 U.S. 162, 106 S.Ct. 1758, 90
L.Ed.2d 187 (1986). The Court cited “seri-
ous flaws” in the studies, noting that some
were only “marginally relevant” and that
there were “serious doubts about the value of
these studies in predicting the behavior of
actual jurors.” Jd. at 168-73, 106 S.Ct. at
1762-64. The Court went on to hold that,
even assuming the methodology of the stud-
ies to ‘be valid and to establish the proposi-
tion that death qualified juries are more con-
viction prone than non-death-qualified juries,
“the Constitution does not prohibit the States
from ‘death qualifying’ juries in capital
cases.” Id. at 173, 106 S.Ct. at 1764. In
light of McCree, Albanese’s assertion that the
trial courts erred’ in death qualifying the
juries which convicted him is rejected.

B. Admission of Expert Testimony.

[21] In Claim 3, Albanese asserts that
the trial court erred “in allowing Rudolph
Schaefer to give an opinion as to the financial
condition of Petitioner, as opposed to merely
allowing him to summarize the financial evi-
dence that had been presented.” In his Peti-
tion, Albanese identifies this claim as one
which was rejected by the Illinois Supreme
Court in Albanese I. Because this claim is
based on alleged state evidentiary error and
presents no constitutional issue, it is not
cognizable in this court. White v. Peters, 990
F.2d 338 (7th Cir.1993).

The Court’s discussion of this claim in
Albanese I confirms that Albanese’s chal-
lenge to Schaefer’s testimony is solely a mat-
ter of state law.

[Albanese] maintains that the trial court

erred in allowing Rudolph Schaefer, an

26. Verdin emphasizes a habeas petitioner's obli-
gation to develop constitutional claims in the
state courts as a matter of federal-state comity.
972 F.2d at 1473. Vague claims mentioning

accountant called as an expert witness by
the State, to give an opinion concerning
the financial condition of Charles Albanese
prior to the deaths of his family members.
Schaefer reviewed voluminous mortgage
papers, bank deposit slips, and cancelled
checks from 1979 to 1981. Schaefer pre-
sented his findings to the jury with the aid
of charts and testified that Charles Alba-
nese had been in “critical financial condi
tion.” Defense counsel objected to. this
opinion, but the objection was overruled.

Albanese I, 79 'Ill.Dec. at 617, 464 N.E.2d at
215. The Court went on to decide that it was
proper under the Illinois law of evidence for
Schaefer to give his opinion, and that the
province of the factfinder had not been invad-
ed. Jd., 79 Ill.Dec. at 617-18, 464 N.E.2d at
215-16. In his brief on direct appeal of the
McHenry conviction, Albanese argued that
the allowance of Schaefer’s opinion denied
him a “fair trial,” and that the “ruling of the
trial court went well beyond the established
Illinois law on the admissibility [of] opinion
evidence and should'be reversed.” (Petition-
er’s Br. in-McHenry Appeal at pp. 82-85).
The bare reference to “fair trial” is insuffi-
cient to alert the state court to the presence
of a constitutional ‘issue, Verdin, 972 F.2d at
1475, especially-when the remainder of the
argument focuses exclusively on state law
matters. The “red flag of constitutional
breach” was definitely not raised with regard
to accountant Schaefer’s testimony. /[d.”6
Claim 3 presents no constitutional issue and
is rejected.

III. Sufficiency of the Evidence.

In Claims 4 and 5, Albanese asserts that
his due process rights were violated because
the evidence against him was insufficient to
support his convictions in the McHenry and
Lake County trials. Claim 4 urges generally
that the evidence was insufficient for findings
of guilt beyond a reasonable doubt, while
Claim 5 is directed specifically against the
scientific evidence adduced at the trials. The

“fair trial’ or ‘‘due process” are, therefore, often
insufficient to afford state courts an opportunity
to correct constitutional violations.

548 823 FEDERAL SUPPLEMENT

court addresses these claims in reverse or-
der.

A. Sufficiency of Scientific Evidence

[22] In Claim 5, Albanese asserts that
“The scientific evidence used against [him]
was patently unreliable and inadmissible.”
This argument is based on the closure of the
Toxicology Laboratory in 1985, the various
reports about methodological errors at that
facility, and the inferences to be drawn
therefrom. The closing of the Laboratory
and the reports critical of its procedures
have been discussed supra at 12-15 and 39-
41 in the context of Albanese’s claims of
ineffective assistance of counsel. Some of
that background is repeated: here for pur-
poses of clarity. —_

Albanese contends that (1) the methodolo-
gy employed by chemist Fred Townsend in
performing the Gutzeit quantitative test for
arsenic was unsound; (2) there were discrep-
ancies in the number of tissue samples taken
and the number tested and in the dates of

the testing; (3) the Baselt report, issued in’

1985, noted the mislabeling of reagent bot-
tles, poorly trained technicians, and the lack
of a policy manual at the Toxicology Labora-
tory; and (4) the Baselt report noted that in
another arsenic poisoning case, the Gutzeit
tests were incorrectly performed by the Lab-
oratory and neither confirmed nor denied
criminal poisoning. (Petition at 113842).
These factors, and the argument that the
scientific evidence was unreliable, were pre-
sented by Albanese in the post conviction
proceeding and have been preserved for re-
view by this court. (Petitioner’s Br. in Post
Conviction Appeal at 29-30).

Albanese had an opportunity to challenge
the Toxicology Laboratory’s testing during
the three day post conviction hearing held in
1986. Albanese offered into evidence the
reports detailing the deficiencies of the Labo-
ratory in general and with regard to the
specifics of the Albanese case. These re-
ports were not admitted as substantive evi-

27. Albanese submitted an affidavit by Dr. Poklis
together with the Supplemental Petition for ha-
beas corpus. The affidavit restates the conclu-
sions contained in the Poklis report which was
offered at the post conviction hearing. The in-

dence, however, because Albanese failed to
come forward with witnesses or affidavits to
authenticate the reports or vouch for their
truth or accuracy. Dr. Poklis, for example,
was not produced at the hearing.2” Even so,

-the Illinois Supreme Court assumed in its

review of the post conviction proceeding that
the reports had been admitted and that they
were accurate. Albanese III, 125 Ill.Dec. at
842, 531 N.E.2d at 21. After reviewing all of
the reports, the Court found “no indication or
suggestion that the lab was experiencing ex-
tensive or grave problems as far back as
1981.” Jd. Indeed, the Court found that the
reports indicated that in 1981 the Toxicology
Laboratory was functioning well. The court
defers to these findings under § 2254(d).

In addition, if the court assumes the validi-
ty of the reports offered by Albanese, it must
also accept for purposes of argument, the
testimony of Dr. Larry Howard which was
offered by the State at the post conviction
hearing to bolster the reliability of the arsen-
ic tests. This testimony was excluded as
irrelevant because Albanese had not offered
substantive evidence on toxicology methods.
(Post Conviction R. vol. 11 at 288). Dr.
Howard, Director of Forensic Sciences for
the Georgia Bureau of Investigation, re-
viewed autopsy reports on Mary Lambert,
Marion Mueller, and M.J. Albanese and the
trial testimony of the prosecution’s scientific
expert witnesses in preparation for the post
conviction hearing. He testified that the
Gutzeit method is an accepted means of ar-
senic quantitation. Further, Dr. Howard
opined that the three victims died of arsenic
poisoning, and that Michael Albanese’s ill-
ness was caused by arsenic. He stated his
disagreement with the conclusion of Dr. Pok-
lis that the Toxicology Laboratory tests were
not useful and had not been correctly run.
(Post Conviction R. vol. VIII at 325-58).

Albanese has not demonstrated a linkage
between the documented and serious failings
of the Laboratory in 1985 and the alleged
methodological problems with the tests per-
formed on tissue samples of Lambert, Muel-

formation is not ‘new’ evidence under United
States ex rel. Shore v. O'Leary, 833 F.2d 663, 669
(7th Cir.1987), and, accordingly, it will not be
considered here.

550 823 FEDERAL SUPPLEMENT

California laboratory for testing showed a
“very high level of arsenic in the blood”; .
(3) Dr. Frank Carter, one of Michael’s treat-
ing physicians, made a diagnosis of “acute
arsenic poisoning” based, in part, on the re-
sults of a heavy metal analysis of a sample of
Michael’s hair; °° and (4) Dr. Helen Young
noted the presence of kereses on the hands
of Lambert and Mueller, a phenomenon con-
sistent with arsenic poisoning.*!

Finally, there is the matter of the qualita-
tive tests for arsenic performed by on tissue
samples by the Crime Laboratory. X-ray
fluorescence was used to analyze the sam-
ples. The jury was entitled to conclude from
the testimony that the victims had higher
than normal quantities of arsenic in their
bodies. The jury heard testimony that ar-
senic is an element present in every person
naturally.” Then they heard testimony that
the Crime Laboratory found no arsenic in
hair and nail samples taken from Charles
Albanese (McHenry R. vol. XXXIII at 97;
Lake R. vol. 9 at 1276) and from employees
of Allied Die Casting (McHenry R. vol.
XXXIII at 87-90). In contrast, arsenic was
detected in tissue samples of Lambert and
Mueller. (McHenry R. vol. XXXIII at 82-83,
108-09; Lake R. vol. 9 at 1276). From this
juxtaposition of results, the jury could have
rationally concluded that even the “qualita-
tive” method of x-ray fluorescence had a
sensitivity floor, below which no arsenic was
measured, such that a positive result had
some quantitative meaning. In fact, one wit-
ness testified to that effect:

It is [widely employed], but it is not quan-

titative. It’s only semi-quantitative. By

that I mean you can get a good estimate of

the amount. You can tell where there is a

none were inconsistent. (McHenry R. vol. XXX
at 479).

29. There was no testimony vouching for the ac-
curacy of this test result. (McHenry R. vol. XXX
at 462-64, 480).

30. Again, no witness was produced to vouch for
the accuracy of this test. The hair sample was
sent to Northwest Community Hospital and then
forwarded to a reference laboratory not identi-
fied in the testimony. (McHenry R. vol. XXX at
S05, 509).

31. Dr. Young determined that the lesions were
caused by seborrheic keratoses, a skin condition

lot or a little or some medium quantity, but
you cannot specifically determine the exact
quantity.
(McHenry R. vol. XXXII at 87) (Joerg Pirl of
the Toxicololy Laboratory).

In sum, there was sufficient evidence of
motive, opportunity, cause of death, and con-
sciousness of guilt for the jury to have con-
victed Charles Albanese of the murders of
Mary Lambert, Marion Mueller, M.J. Alba-
nese, and the attempted murder of Michael
Albanese. See Anagnostou, 974 F.2d at 944-
45 (where defendant was charged with using
an explosive device to destroy his restaurant
for insurance proceeds, proof of motive and
opportunity, together with circumstantial evi-
dence linking defendant to the explosion and
expert opinion that the explosion was not
accidental was sufficient evidence to satisfy
Jackson standard). Under the standard set
forth in Jackson v. Virginia, relief based on
Claim 4 is denied.

IV. Prosecutorial Misconduct.

In Claims 6 through.12, Albanese contends
that, not only was-the evidence against him
unreliable, but that the State knew it to be
so. The State, he argues, withheld potential-
ly exculpatory information from him, and
solicited or allowed false evidence to be used
against him. Because neither of these theo-
ries of constitutional violation were presented
to the Illinois courts, they have been proce-
durally defaulted.

A. Violation of Brady v. Maryland.

In Claim 6 Albanese asserts that the State
of Illinois violated Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed2d 215
(1963) 3 because it “knew or should have

stimulated by arsenic. (McHenry R. vol. XXXII
at 188-89; 200-01). In her testimony at the
Lake County trial, Dr. Young noted the presence
of skin lesions on the bodies of Lambert and
Mueller, but did not mention that arsenic could
aggravate the condition. (Lake R. vol. 9 at 1253,
1262).

32. (Lake R. vol. 9 at 1164; McHenry R. vol. XXX
at 372).

33. Brady established the principle that suppres-
sion by the prosecution of evidence favorable to
an accused who has requested it violates due
process where the evidence is material either to

a SSE ee nett ee ae

<

Fal

ALBANESE v. McGINNIS

049

Cite as 823 F.Supp. 521 (N.D.III. 1993)

ler, and M.J. in 1981. In the absence of such
a link, relief cannot be granted on Claim 5.

B. Overall Sufficiency of Evidence.

[23] Albanese broadens the inquiry in
Claim 4, asserting that he “was not proved
guilty beyond a reasonable doubt.” The
standard for judging sufficiency of the evi-
dence claims is well known: after viewing the

evidence in the light most favorable to the:

prosecution, could any rational trier of fact
have found the’ essential elements of. the
crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d‘ 560 (1979). The Seventh
Circuit, citing Jackson, asks “whether any
sensible person could find, beyond a reason-
able doubt, that the defendant committed the
crime.”
317, 319 (7th Cir.1992). ..Where the record
supports conflicting inferences, this court

must presume, even if it does not affirmative. -

ly appear in the record, that the juries re-

solved those conflicts in favor of the State.

Jackson,:.443 US. at 326, 99 S.Ct. at 2792.

[24] The facts as summarized by the Illi-
nois Supreme Court at the outset of this
opinion illustrate that the ‘evidence against
Albanese was circumstantial and powerful.

Circumstantial evidence is just as relevant as.

direct evidence in establishing guilt or inno-
cence,

U.S. ——, 118 S.Ct. 1948, 128 L.Ed.2d 649
(1993) arid cases cited therein; see also
Branion v. Gramly, 855 F.2d 1256 (7th Cir.
1988) (applying Jackson v. Virginia standard
to evidence in a circumstantial case of mur-
der), cert denied, 490 U.S. 1008, 109 S.Ct.
1645, 104 L.Ed.2d 160 (1989). Taken togeth-
er, the evidence adduced at trial was suffi-
cient for a rational jury to find guilt beyond a
reasonable doubt.

The evidence presented at the trials estab-
lished that Albanese had motive and opportu-
nity to commit the crimes charged. In Au-
gust 1980 he was behind on his mortgage,

28. Dr. Baxamusa testified that all of Mary Lam-
bert's symptoms were consistent with arsenic
poisoning and that noné of them were inconsis-
tent with that diagnosis. (McHenry R. vol. XXX
at 426-27; Lake R. vol. IX at 1145). Dr. Pinto

United States ‘v: Brigham, 977 F.2d.

United States v. Anagnostou, 974
F.2d 939, 944 (7th Cir. 1992), cert. denied, —

loan, and child support payments; these
debts were paid off with his wife’s inheritanc-
es from Lambert and Mueller. The court
must accept the testimony of Donald Fish-
bein and conclude that M.J. wanted to fire
Albanese from the company, and eventually
demoted him in September 1980. M.J.’s
death and Michael’s disability left Albanese
in control of Allied Die Casting where he

_used his position to sell company assets for

personal gain. The evidence showed that
Albanese. had _ access to all four victims.
Mueller and Lambert were visitors to the
Albanese home; M.J. and Michael came into
frequent contact with Albanese at the offices
of Allied Die Casting.

There was also ample evidence from which
the jury could have found consciousness of -
guilt. The jury in the McHenry County trial,
this court must presume, accepted Marty
Nathan’s testimony that. Albanese was trying
to frame his brother Michael for the mur-
ders; it clearly did not accept Albanese’s
explanation that he was just trying to prod
the police to investigate. Similarly, the court
presumes that the Lake County j jury credited
the testimony of John Saltz and determined

that Albanese’s schemes to have his brother

murdered showed consciousness of guilt.

Due to Albanese’ s failure to prove that the
quantitative tests for arsenic performed by
the Toxicology Laboratory were. unreliable,
the court could simply restate the results
showing high concentrations of poison in the
tissues of the victims. Even if the Toxicolo-
gy Laboratory’s results are omitted, howev-
er, there was sufficient evidence to allow a
jury to find that the victims died of arsenic
poisoning. Against a background including
the facts that Albanese was in possession of a
substantial amount of arsenic before August
1980 and that he had access to all of the
victims, the jury could have rationally relied
on the following facts: (1) the treating physi-
cians testified that the symptoms of the vic-
tims were consistent with arsenic poison-
ing; 8 (2) a sample of M.J.’s blood sent to a

testified to the same effect as to Marion Mueller.
(McHenry R. vol. XXX at 440-41: Lake R. vol. IX
at 1133). In the McHenry trial, Dr. Bernard
Miller testified that Michael and M.J.’s symptoms
were consistent with arsenic poisoning and that

Hi big car pulled away from the Vermilion County
Jail shortly after 7:30 on the morning of Friday,
March 31st, 1933. It roared out Vermilion Street—
main thoroughfare of Danville, Illinois—at break-neck
speed. live men were in the ear.

The five men were: I. W. Ward, sheriff of Vermilion
County; William Ryan and Robert Meade, deputy-sheriffs;
Robert Morris, then a highway patrolman, and Coroner Harry
George.

The big car made one stop on Vermilion Street. There
was a brief consultation with two. city motorcycle officers,
Karl Rutledge and Herman Lanter, who happened to be
investigating a car apparently abandoned on Vermilion
Street. The two city officers dropped their routine busi-
ness at once.

A moment later, seven men were dashing along the Dixic
{lighway, their deep-throated machines roaring in the early
morning quiet of Danville’s élite North End district.

They came to a crossroad, turned into it and bounced
for a while over its rough dirt surface. That brought them
to an unpainted clapboard shack.

They braked to a stop and got out. he door of the
shack was open. Outside the open door, a knot of curious,
strangely quiet neighboring farmers stood waiting. Two
men detached themselves from the group.

“Morning, Sheriff,’ one of them said. He jerked his
head toward the open door, “In the shack. We kept every-
body out until you got. here.”

“Good,” Sheriff Ward said crisply. “Wait outside here.
I'll get. vour stories later.’’

The seven men, headed by the sheriff, crowded into the
single, tiny room of the shack

The dead man was sprawled half on, half off, a rough
cot that was crowded into one corner of the eight-by-ten room.
The upper half of his body lay across the cot; the lower
half, doubled at the waist, sagged downward, knees and
feet resting upon the floor.

His calloused hands were drawn together at the baclf
and held by thin strands of copper wire. Leather straps
bound his feet. His body was swollen, purple, stiff.

Blood, congealed into rusty spots, mottled floor and walls.
Head and face, badly battered and stained, were almost
buried in the cot’s dirty, patched coverings.

Signs of struggle—and of search—were all about the
50

(Left) Officers who
worked tirelessly to run
down the murderer with
the missing thumb. Left
to right: Chief Deputy-
Sheriff William Ryan, of
Vermilion County; De-
tective William Newman,

and Lieutenant Leo Bire- ‘

line
@

(Below) Sheriff F. W.
Ward, of Vermilion
County, Illinois, shown
standing in the doorway
of Newton Cozad’s shack,
holding the .22 rifle and
bloodstained monkey
wrench used to slay the
old man

(Above
a murd:
survive:
dam an
brother
the mur

(Right
nent in
to right
George

Kasserr.

torney,
death
of the k
man is
Johnso:
Harry ‘
Taylor.
of the
Police;
Ward;
liam
Deputy


wal
In

True Detective Mysteries

THREE IN THE DRAG-NET

While an angry mob clamored outside, this picture was taken in the basement of the Crawford County Jail, at Robin-
son, Hlinois. Left to right: Sheriff! Charles M. Sowers, of Jasper County, taken with the three suspects, Harry Shelby;
John Allen, Shelby’s nephew; and Harold Peck

Cozad, the clipping stated, had erected another shack and
gone on living on the site of this mysterious tragedy alone.
lrugality had raised the money rescued in the tin can to a small
fortune. This fortune, the newspaper yarn hinted, was hidden
somewhere in the shack or on the five acres of tillable soil sur-
rounding it.

Sheriff Ward showed the clipping to the others.

“Here’s where whoever killed Cozad got the idea for the
robbery,” he said.

Everything supported the theory. The disorder in the shack,
the obvious search of the cot itself, the fact that the dead man
had been trussed up.

“Some of you,’’ Ward told the other six men, “search outside.”

Rutledge, Lanter, and Morris went out at once. Smooth

(Right) George

Freeman,
Chief of Police,
Danville, Illinois,
who aided in
rounding up the
killers

unity existed between city, state and county departments.
Sheriff Ward turned to Coroner George, who was examining
the bound body.

“What was the exact cause of death, Harry?” he asked.

George straightened, wiped his hands on a clean handker-
chief and shrugged.

“T’ve made only a cursory examination,” he replied. “The
head is badly bashed in, so the cause of death’s probably skull
cane. However, there are some indications of strangula-

ion.”’

“When would you say he was killed?”

The coroner stopped, tried to bend one of the dead man’s
legs. It was rigid, firm.

“He’s been dead at least thirty-six hours. Roughly, I’d
my died between seven and eleven o’clock Wednesday
night.”’

The two deputies had been searching inside the room. One of
them—Meade—suddenly brought forward a fourteen-inch
monkey wrench. In the crimson clots upon it were imbedded
strands of gray hair. Cozad’s hair was gray.

Sheriff Ward nodded.

“Looks like the murder weapon,”’ he admitted.

Lanter and Rutledge, the city policemen, came into the room
with a cheap, single-shot .22 caliber rifle—a type frequently
used by squirrel hunters.

“Found it in the field that borders the highway, about
twenty-five feet on the inside of the fence,’’ Lanter explained.

Sheriff Ward took the rifle, handling it carefully, and laid it
to one side with the monkey wrench

“WE may be able to get some prints off of these,’’ he said.
Morris, the state highway officer, came into the room
next.

“There’re several footprints outside,” he said. “I talked to
the people outside. None of them walked near where the
prints were made. Someone wearing rubber-heeled shoes
made ’em.”’

Instinctively, the eyes of the men in the room went to the
feet of the dead man. The footprints hadn’t been made by
Cozad, for his dead feet were still incased in heavy, rubber
knee-boots.

“See that nobody disturbs them,” ordered the sheriff. He
turned, as he felt someone nudge him. Chief Deputy Ryan was
at his elbow. Ryan was fingering a small, leather-bound bank-
book. “First National Bank of Danville, Illinois’? were the
words imprinted in gold letters on the outside cover.

“Old Cozad had over a thousand dollars in the bank,’”’ Ryan
said.: “Besides owning several shares of building and loan stock.”’

Sheriti

“Prob:
said.
night to
slapped
After kn
tied him
while th
bank-ho:
money
heat it,
him to d

“Tt lo

stacks u

AY |
Tlud
the Dan
at the s!
doubled
police ))'
pert, we
body fro
of the
the foot
He h:
baugh
work ini
and rifle
Ward
question
he had 1
Phillips,
shack,
on the >
of their
“Leo
noticed
shack a)
several
needed
vestigat
tore up
all.”’
Furt!

IDDLE

OF VERMILION COUNTY
By DETECTIVE W. C. SMITH

DANVILLE, ILLINOIS, POLICE DEPARTMENT
As told to DUN SLOAN

dingy room. Papers had been torn from the walls. Open
cans and containers were strangely out of place. Gaping
holes in walls and floor showed where boards had been pried
off. Clothes, in which pocket» were still turned inside out,
hung limply from wall hooks A worn traveling case, its
contents scattered about, lay upon the bare floor, Even the
cot showed unmistakable signs of violent, but systematic,
searching hands.

Sheriff Ward stepped over to the dead man, plunged hands
into the pocket of the corpse’s overalls. From the faded,
blue overalls, he got a few smal] coins, a cheap nickel-plated
watch that had stopped at seven minutes past 3 o'clock and
a week-old newspaper clipping. .

The newspaper clipping interested Sheriff Ward. It was a
feature story that had appeared in the Danville Times. It
concerned a miser and gave the location of the shack in which
the miser lived. It mentioned no names.

It didn’t have to. Most of the readers of the Danville
Times knew who the feature story writer had referred to.
Sheriff Ward knew. Knew that the man the story had been
written about was the man from whose pocket he had just
removed the clipping. It was a story about the murdered man
who was sprawled across the cot in this very shack in which
they now stood.

The dead man was Newton Cozad, sixty-two years old.
Fifteen years before, the newspaper clipping stated, Cozad
had heen living in another shack, in almost the same location,
with his blind mother, One night the shack had burned and,
with it, Cozad’s sightless mother. Cozad, after the fire,

+ had raked a tin can from the debris. The recovered tin can
had contained several hundred dollars in’ bills and= coins.

(Above) Two victims of
a murderous assault who
survived—Bernard Wel-
dam and Anna Schrader,
brother and daughter of
the murdered Mrs. Mary
Schrader.

(Right) Men_ promi-
nent in this case. Left
to right: Deputy-Sheriff
George Watkins; Homer
Kasserman, State’s At-
torney, who obtained a
death verdict for two

of the killers. | « fourth
man is Caj»' chard
Johnson; him,
Harry St»: wrence
Taylor, Chief
of the State
Police; - F. W.

Ward; Detective. Wil-

liam Newman; and

Deputy-Sheriff William
Ryan


coed

b.

Cc.

d.

USS.

US. E.E.O.C. vy, AIC SEC.
Cite as 823 F.Supp. 5

APPENDIX—Continued

ers, and a defendant’s right to due pro-
cess of law, resulting in death penalty
sentences that are arbitrary and capri-
cious and are imposed in a wanton and
freakish manner.

It fails to provide proper constitutional
focus on the individual characteristics of
a defendant in having a jury decide the
death penalty issue.

It defines as a mitigating factor wheth-
er or not a defendant has “no significant
history of prior criminal activity,” which
terms are unconstitutionally vague, in-
definite and uncertain. _

It provides that a jury to impose the
death penalty must determine that “no
mitigating factors exist sufficient to pre-
clude the opposition [sic] of the death
Sentence,” which such standard is uncon-
stitutionally vague, indefinite, and uncer-
tain.

It fails to provide proper constitutional
Standards for the Appellate review for
imposition of the death penalty so that
death sentences are allowed to remain in
effect in a wanton and freakish manner,

A majority of the Illinois Supreme
Court believed the Illinois Death Penal-
ty Act to be unconstitutional, but have
Set a judicial doctrine of stare decisis
above their constitutional judgments.

W
° § KEY NUMBER SYSTEM
T

EQUAL EMPLOYMENT OPPORTU-

NITY COMMISSION and Charles .
Wessel, Plaintiff,

A

Vv

IC SECURITY INVESTIGATIONS,

LTD.; AIC International, Ltd., and

latio

Ruth Vrdolyak, Defendant.
No. 92 C 7330.

United States District Court,
N.D. Illinois, E.D.

June 7, 1993.

Former employee sued employer for vio-
n of Americans with Disabilities Act

iI
Ah
gs

INVESTIGATIONS, LTD. 571

71 (N.D.IIl. 1993) {
(ADA) as result of discharge of employee
based on his terminal cancer. The District |
Court, Guzman, United States Magistrate
Judge, held that: (1) compensatory damages
in amount of $50,000 was appropriate; (2)
limitation on judgment provided under Civj]
Rights Act applied to ADA; and (3) employ-
er and sole shareholder would be held jointly
and severally liable for punitive damages.

Motion for entry of judgment granted in
part and denied in part.

1. Civil Rights 274

Award of $50,000 in compensatory dam-
ages for employee discharged as result of his
terminal cancer was not “grossly excessive”
and did fall within range of reasonable dam-
ages under circumstances; employee was
fired when Prognosis was that he was dying
from cancer but still had no choice but to
continue to work for financial reasons. 42
US.C.A. § 1981a; Americans with Disabili-
ties Act of 1990, §§ 101 et Seq., 107, 42
U.S.C.A. §§ 12111 et seq., 12117,

See publication Words and Phrases
for other judicial constructions and def.
initions.

2. Civil Rights 274

Limitations on recovery provided in Civi]
Rights Act applied to action under Ameri-
cans with Disabilities Act for purposes of
award of punitive and compensatory dam-
ages for future pecuniary losses, emotional
pain, suffering, inconvenience, mental an-

.

3. Civil Rights C274

Limitations in Civil Rights Act for
amount of combined compensatory and puni-
tive damages based on number of employees
in workplace is applicable to individual defen-
dant sued as agent of employer: it would not
be logical to cap damages recoverable against
employer but allow unlimited liability as to
employer's agent. 42 U.S.C.A. § 1981a(b)(1).

BS

™ to be on there way to Champaign to
; attend a funecnd. Two white men}
were thrown in jail over night, also.

» came to her death as a result of in-
* juries infiieted by the defendants and |i

@.-iney were faced by their victims?
“gad been expected to be a dramatic

‘stories of the others gisu contirm this. §

oon German, caretully considering their jj
J@. answers. Finally they pointed to the j4

Newton, aller Wiirert We vy cee ssenenen
St. Anthony's hespital, fattinghsm.
ss condition is reported critical. Hel |
gd been in poor health for several!
onths and this, with his injuries, |
uy cause bis death. ;
According to the story Mr. Hekert

had HeeN CuLsimecees se

os Mecha U cea se wennn Ae ae

_ regoue early Tuesday morning from
ha. DUPHING house in Oblong. Despite
his injuries, he is expected to recover,

Chapman, who formerly resided
. near Hunt City, was sleeping in 2
heriff C, M. Sowers Canght Sraiting ers? owned by Mrs. Lucy Fessler,
When He. Broa ght Yn. the. Prisoners aad was trapped in his room when he

mee Re : ed awoke ta find flames roaring from
ite walls and ceiling.

Hurley Beauchamp, 4 neighbor, res-
“Jeued Chapman from hnis.room, but nol
miher, He said, and the former started Iyefore the aged man was severcly
part in the criminal attacks on Mrs. > cross over in front of him. Atter ——- 2 =fourned over his entire body, He was
Schrader and! her daughter, the poat- |e had stepped on the slab, the aged! News. leaked out a few days, ago pushed to the hospital at about 3
ing of their victims with an irou bar | man apparently became confused,.ac-jof the wedding of Edward Robr and o'clock in the morning and given
and the burning of Mr. Weldam’s reet (qording to Hckert. and dodged back| Miss Kathlyn “Heuriog, popular New- pnedical aid.
ith matches to viake them tell the |gmd forth two or three times: and|ton young people. They were united! ‘The origin of the bluze was mys-
hiding place of s20600 the thugs @nally stepped directly in front ofjin marriage at the Methodist parson terious from the first and suspicion

<<; (was excited. Rumars were soon afloat

claimed was conexied about the fhe oncoming car. age at Sumner on, July 3 by Bey be
a Pe H.W. Willsis «Mr, and Mrs. Stanigy that it wag of incendiary origin, and

The corene:s ing“erdt was adjourn- |)
ed Saturday to 3280 ovlock this atter- |}
noon. Aft inat Lime, tbe jary is ex-|)
pectel to find tint) Mire. Schrader}!

Se

t
ld following the accident, he WAS
@iving west on Route 33 when hej
ertook Mr. and Mrs. Helmltog nea
ve St. Peter cemetery corner. Mra
elmiing was walking on one side aff
© road and Mrs. Helmlipg on the

recommend trac looy be held to the}
grand jury. li

In their confessions, hot Shelby }j
agd Allen adn being cueinbers of
the bandit trio, but both deny Laking

—

- Rohr-Heuring

premises. Peck (be is) known both™ : ;
ng Peck and !: ckinpaugh in Indian- Civie Club Meeting Poal of Sumner; the latter » betare. Wednesday morning State's Attorney
; a ‘Tmarriage Miss: Virginia. Warren “ggi Bradbury tallied with Mr. Chapman
— at the hospital. The latter told him

apolis, his home, apd 2s Peck in Dan-j : ; :
After being suspended during the} West Liberty, ‘attended: them. —.

yille where he has been panging about] 3 |
e piggpet months, the next regular moet- After the wedding they apyreet*4 that he helieved the- fire “had been

gambling houses! taid of loaning Dae : { of ‘ :
tar to Allen. Dut deuied going with ng of the Newton Civic Club will be} keep it a-segret. arid guceneded far s|stacted by Harris, with whont he had
: Bciq Tuesday evening, September® 12. most two months.” They plan: to: quarreled . the night before. Chap-

: man gaid that Harris had«struck, him

them or Knowing anything about ‘they : :
murder beyond what he had keen toidge his date was get instead of Monday|to housekeeping: soon on Rout
gnd had read Ws the papers. The might because of a number of mem-!a short. distance gouth: of | Miattoe
Qers having a conflicting engagement. |} where Mr. Rohr is employed ty Ba

‘The identification of the men whens, The program committee has beer)man & Com : : aos Base

Mery fortunate in securing Otte
}Baganz of Flora to entertain the cluby
“jae, put turned out to be quite tame. mith a series of harp solos. ‘Mr. Bag-|
Mr, Weldam and Miss Schrader, whan nz, who is the president of the Qual-|
hey confrouted Shelby, Allen and/#

is

t
‘peck, had little ta say for a minute|sz
or two, and then they talked together |-

-fand told him that, he would. get. his
irevenge before the night *“was:. over.
‘The quarrel was, said to Fave been
ver a WOR. ee oe Fal

“Mr, and! ars:
y bride is: 3, dangh: + |
es. Wy, Ox Heuring: Mighway Policeman Albert... Porter

graduates, of: tdrove to Oblong about noon Wednes-
eee D Helday and took Harris into’. custody.
ty, was formerly with the Chicago with the class: of) 193%) and’ she ith | They took him. to Robinson:-where he:
mphony Orchestra and is known the class of "2982. Mr. Robr is: well lwag held for questioning... . Deputy
t i . of {known as an athlete, playing baseball, Wire Marshal Talley o
vas. cap-|\vas notified, and came to assist with
latter |the investigation.

oy, fe) Chapman was the sole occupant of
ae an-jthe house which is located in the
oti his marriage -Y get- | “‘Mexico” district of Oblong. When he
a ;-Mount | awakened, flames trapped him from
at. Rose ‘Hill. Ve ‘ainileaving by the door’ to his room, and

The officers 01

jio have a, good ‘attendan
dmecting as they feel that
lin oxceptigngl program.

two former as two of the men who
had beaten and. tortured them, besides:
criminally attacking: Mra... G¢hrade
and Miss! Schrader. yee _

After Shelby and’ Allen had been

identified, the questioning of the three all: mem Dy S

> men under arrest Was redoubled. % ing ent

peck was tne first of the trio to break. |% ; ae
About'the middle of the afternoon, he 3 -s wehabiiitati

asked to see Allen’ and after being
permitted to do sa, told
loaned his car to Aller
put hadn’t accompanied
didn’t know waat he
about fifteen minute
proke down and to
sorture murder. ,
hours of continuous

atiley of: Olney
max of the rebe

jtate: Legion
ion ; greeks.
‘comm!

Tuxtrumen ‘Kenneth: and. ri. Mctauley- ia
Proy Langsto . gong, Hileen and Helen} most imports at, committee J!
May Strole; reading, Lavange: Kibiery-stat. 7
aMinstrumental solo,’ Juanita,’ Kibler
Vduet, Mrs,..Lere. "Brown's: childrens
gong, Mr, and ‘Mrs, D. Frank {bier}:
guitar solo, Roy Pio :

na
on: pr

nad concentrated on him. He. told
perfectly straight-forward story abous

Nis life aud actions until he came ta] eu Pat ns: e

the car, they said, when he began<tk Woitesell _ ehildrens: 1 si eee

hesitate. Every time they’ would .g@} Ann Marriott}: song. Lengeten “Legion

over the attacks on Mrs. Schrade Wanda Lee Kit ls Be eee

and her daughter he would cny ou : Clarence: Ly fT eer
samder and, Lon ©

“My God, no, YT didn’t db: that. T ay
vot a wite and baby at heme.’ Eig
yaid that he had been & manager or

peen unemployed for two years,” J i end. D> at
Pyitation, Bring

ne said that he made his living -

ling, and had purchased the ; ai
way. Only two times would. é

tion the name “Lowery,” afterware
remaining silent on this point... The

(Continued oa Last Page) 430:

State’s Attorney Bradbury, ‘and’

f Mount Carmel)

were: TRKeN (UO bu “rasan y
where they have beon recel
ment,

McDaniel was quite drw
imy to officers who-arreste
will beheld to await the
Father Lupton's and Mr.
juries and faces serious ¢

PrP ———

Strangers Hurt in Hendo:

- —_

Mrs. Bruce Bailey of.
severely injured and her
father cut in a headon ¢
front of the John Long
Route 38 three and ene-
northeast of Newton, Sw
ing, with a car driven 01
Wrasier of Terre Haute.”
Oscar Lincoln of Californ
companied him, received
about the face, besides. mi

The. accident is said to
pened when Frazier, whi
hound, attempted to- past
mobile of W. B.. Roberts
of the Long hill Just as
around; the Bailey: car oA
from. the’ west, and ‘Wraz
drop back into line, but

{too fast. He. ram up. on
‘ori. the right side and fing

ta the left directly in fron

‘coming Bailey machine. «

the scena of the aecident

ragter applied hig. brake:

before: te: crash. ©”
Inthe Bailey car were
who had his left arm cut;
Mrs. Bailey’s father, two
his left eye, a cut on h
poth legs cut, besides
bruises: Mrs. Bailey, left :
internally injured; and ©

daughter Helen. 4 slight

-


Latin £8 PMT <3
, Cade Nett:
ad Mrs. Cla:

OF EY Soult: Pray} Rev. {Ea
Mixed: quarte. Mrs. Ri fee

Trapt tAe abe me St.

and was} Q: 32

meu. tae tekOu emer Ap,

auzric : pe shiny
Chaney. ‘String duet. Hon ¢?: Caudill’; Dewhirst
frees © "Matiocs, Mis a quartet, Basil HOS
Hara a hteiasieg and Lioya > feCoy ancl Gorret). 94
‘| Mrs. John. Daupherty. Rea “Ug, Ars Gregory,
| Kinder!

Lo ‘in ‘ . - Reig: ery W. Eufe
_ a im sewers obtained infarniation from } pie Fas oligeied could give a hi bie try : teted 35 fs af, Shirley] 5
_ . a be aa \ ig@ them as to where Sh, OY, who like | deseription of the Rien, hut, seek lah A RT aR Re Mis a et d RE re een Wray fet, Harr yp hirst, “ia Os
“ i _ +7 ~ ip] iF od } Cor AGF f - Sag Silen iu: AN px. COME L UL on parate. : they giveg tatr déseription: of theni hfe! thti {ay hey ae on 3 LOST? ye “Quar ‘ond Fre} Clyde 1 Reox’ Harold
16 Né@wion ress,  Y : PS Ehe. Cubs. play. the. % armersburg, 4 e and Lloyd Mecoy et) ee.

Menight be located and arested hin | Wich talied with that“of the three ; ae,
3 Pechilipaugh eousulted an ‘ttormey | en whe drave up: to. the-hame of Bag aan A, 3 te

@ *fore coming to Ropinson. Hig story, Schackmann-in the: St, Peter ‘neigh. hey: haveches
told haltingiv eo davertainiy is in| Yorhood in a” Model A. Ford, coupe a
wm effect that he was Visiting in Dan-| Dearing an Indiana license, .Monday,, ie
Fille, spen ding most of his time drink-!@nd asked where Bernard Weldam{y.
B88 and gamiing stikough he claims/|Hved. As’ Mr. Sehackmann <iidn't Uke jf

B to have been oni of work for two/ their appearance and they didn’t seam Mt
F jears. He said that the car bad been/tO know Mr, Weldam, Mr. Schyick-
@aned Monday. and acter repeated / Mann reported the occurrence ‘tog
@ qestioning named 2 Jinimy Lowey, | Reighbors, and the latter followed and

ld Milseo, Elden
. Nort Whit i, Millsap.
ch, Ivan Dale: Whit

yd "Jones

j Gerald:

mehere - Next Sundayy
going ata fast di

¥ Sod. my rand.
Vest) may /ton Garrison \s
Balyation;| childrem ‘Dyet
P 18:2, } Jones.’ Readin.
ember Address, Rav,

@ thom the authorities believe to be a) Obtained the license number,
Retitioug character. A short time later, Otte Hippler)|
Shelby, the oldest or the Loree, is} Will Menke, George Fear, and Ralphifé
pmarried but is seporated from his|/4nd Clarence Schaekmann obtained] sy
; wie. He is unempioved and is out; Shotguns and hid out in the brush-ad-§
'.@ parole from a furtiture robbery inj Jacent,to the Schrader home; waiting #¥
y Edgar county. He is 2 bard charac-|tor the men, but, they never
ple. and indubitably the loader of the } back, Wednesday, Sheriff - C. ML
> gang. | Sewers, after being notified, id fe
p.», Guarding the men on the trip down; Where a eat probably: these MeO ae:
‘from Danville were Deputy Sherigt/ had camped ie
George Watkins, Highway Policeman} | Mr. Hippler noticed & dog at the
eds. Brummer and G. J. Dorn of| Schrader residence barking in a be-.
PMewton, Sergeant Grissom of Carmi,|Culiar manner Tuesday evening and’
and Patrolmen Steppe of Dieterich. called attention to..it, “but, others | ré~!

favi Reese, secr btry and Nation
264 were regigt, red | Sainte

“awa sent Need _ to day hernootivha

eit’ closi
asin theepas

aloe

; : . b-farmn: tin =
“Porter of Robinson, marked. that. it always barked: that} Gn the pem ann a ‘This ‘consti z
oe _ way. Had the’ men gone and. investi: Udge Isley in ‘hig: plea | and Ee
_Sirs. Mary Schrader is dead and her/$ated, they would: undoubtedly hat wa. - to’ ans.
f brother, Bernard -Weldam, and her{caught the thugs, “who Will: probah

Eeaughter, Miss Anna Schrader, are not|Prove to be: gangsters from’ India
e empected<to live as a result of their} @polis, in the act. dy ai
Meing tortured and beaten by three; The men literally tore everything: In élvi
pen who acted more like Wild beasts the house apart in their effort to fin din
- Pm human beings, Tuesday night, | hidden money, but in spite of this and#
Poth. Mr Weldam and Miss Schratier| their beastial! behavior, they obtainediAt
Yate it a critical condition. suffering | Only about $10.00; Parties who ar-7¢

ies
MMT RAE RATE Fa aAbnicsian hofars >:

+t

éd-a term in 3
{vont concussion of the brain, besides|Tived there early stated that.” they gust:

innumerable other injuries and: shock: | Could scarcely: get through, the: xdomp{d

Hach has « fractured. skult ag a re. [for the things, scattered’ dn. the ‘fh at
sult of repeated blows on the head./The mien: had turned: the contents. off NIRS TERED ent
20th are beller this morning... ; all. the. draywrarg: and -closeta:"on. eb here: exdmination: ;

_ Both. Mrs. Schrader, who was. 81} guttering po
years of arc, and her daughter ‘wera ®

criminally. attacked by the men, who/trenzy,.. ; Sear ae RereES
came to their bome about 7 :00 o'clock} | Mrs. Schrader was. the widow,
and stayed for more than four hours|the late Jo
before they left. Miss Anna was farmer, wh
bound to tae bed with balirg wire
and was unabie to tree herself until

: _ fb. Where are.
about 9:00 o'clock Wednesday morn- ‘ CRE ead oe Chavtasto
ing. After givine what aid she could oe ean Wand: coun
to her mother and uncle, she managed aa

to vo to the St. Peter school about
a hundred yards away, where Frank
Woodard, the teacher, sentfone of, the
pupils for help, ee a
‘The three bandits first came ‘inte
the barnyard where Mr. Weldam,
“Mrs. Schrader and her daughter were.
ipying to complete their evening's |, + Bh
chores before darkness. . They, are/Mments are - conf}
described as an old man with. a. hook /it is not definitely kn
nose and two younger men, The lut-;Swindler claimed to.
ter both carried revolvers and brand: _ Sata fees
ished them while their victims’ were ‘tripped ‘off. the
being bound with wire and strips | previous
torn from Miss Schrader’s. dress; and/estate dealer,” The tirst s sition
taken into the house. Hyen beforetis thaught to’ be: the correat,one, OW:
they took them inside, they clubbedi ever. Fe ee aos pace
them, blood stains indicate. - .. . - Mrs.” Schrader, <a daughter. of “Mi <b;
Onve inside, they demanded: thatjand Mrs: Joseph Weldam, was bornt] oth,
Mr. Weldam, who is 85 years old, tell | Wade township: northeast of N:
them the hiding place of $20,000 they| where she’ hay--@lways: resided: "A pa ys
insisted that he had hidden about the. 1,.1852. She: passed: away about2.:30° mony he '¢
Place. When he and his sister and/o'clock Thursday" morning, irom: her twas: then’ a
‘niece tried to toll them they had no}injuries.. She was united: in’ mattage Saturday” afternoon,


TAIL THREE THUGS WHO-TORTURED

MRS. MARY SCHRADER, HER DAUGHTER

ANNA AND BROTHER BERNARD WELDAM R. Wa

# Positively Identify ie ty Shelby, John Allen aiid Hen
Peckinpaugh as the Men Sought: All Are in the pi
Crawford County Jail at Robinson Under:

Heavy Guard; Have Not Confessed._

22 OMEN ACTED LUKE WILD BEASTS?

{| Their Aged Victims With an fron |.
Bar; Women Criminally Attacked

Harry Shethy of ‘Tilton,
“of Danville and Henry Pee kinpaugh of
Indianapolis «wre in the Crawford coun-
tty jail at Robinson charged with the
y Schrader and
-% and fiendish
me her brother Bernard Weildam and her
ye daughter Miss

John Allen

Anna Schrader
They have been positive-
ly “identified by George
3@ individuals who asked him ‘about the
. ‘Schiaa Monday.

«They were brought in aheut mid-
‘fight after being arrested Thursday |
er afternoon in Danville.
igecwere discrepencies in their stories, in:
spite of hours of questioning thes
nat no confession in sight.

Under the guard of the state high-/.
3 ay. ‘police, extracrdinary precautions:
ae are heing taken to keep them safely
ae for the October
Rwhen they will be tried,

The trio were ent ntured at Danville
‘by Sheriff C. M. Sowers and City Mar-
sbal Hansel

Although’ thera

‘that the jicense
gheerved on phe : which asked for |é

4 dr. Weldain

Ai bis he nie, the latter, i Dae.

such sum, the men began: the systema
atic torture..of their helpless victims
All thrée were. beaten with a .club) iGe
believed to have been a blood. stained
solid iran bar an inch in. dinmeter: Bhd
twenty inches long found at. the scene}
of the crime: They were strucit
the head, chest, arms and: legs, ‘andl
otherwise tortured. :
Miss Schrader was’ wired: to * the!

mas eases ioe te Biggest ¢
Rowethat | in:

+ Written. for’ the: Pious.
2] Daisy Staley Boxley, «
ine ancl, Mrs. Géearge Stal Ys
Getober 19, 1897, and ¢
re ‘at. the Obiey sanitar ©
saged 35 years
es ey ‘da ve? She-was uni:®
ages ‘to. “Dan. sagt ee Ma"

Sau fan “aha an,

pecYotary ofe “the”.
4 large. ot the: NRA
in’ Newton, . have
ALS an the: drive

daughter (of j= Fa
nual Jasper County.
tae the: biggest

} ties’ will begin. is
{of visitors and Safa! ;

‘yor 2; | ub ‘tis. gee . Bow
\ « Bary, Dale, |¢
Yan se nt. who pre- ree 3

ceded, ter in: death. -
-| “Besides. her husband :
{She ieayes to mourn her 1
‘mise her: father and moth
v2 ‘grand-parentg;: Jacob Stal.
| Nettie Stone; eleven sister
. [ersy Sylvia, Goldie, Murie,
dine, Iva. Hallie: Meri, Ge
urd and Fredrick; and n-
Jatives’ and triends.,
Daisy professed, her fait?
5 the: “Mount |"

AF
‘sparted: this}
um,. August

was’ Fina one

ld children, SCnSIOE
_ ntimely ‘des| Dennis
ér, and two |d:
’y ‘and: Mrs, Unt
deat ratty ‘s

tary. Clubs

ot re a, 2A! io a
Hton Wormanta. Club: Rey:
Hosen G. Rev. Fr. Jobn Lupton

nH 3

bed with her arms outstretched aver pe>ait

hor head and a wire drawn tight. over’
her throut.. In this position, ‘she: was}
beaten, und. was four times the victim:
ot criminal assaults, ... Besides ohé1
bruises, shé wag ‘severely’ bitten. On
the: breast,. lips, neck and, shouldérs;
and strucic: in. the eys ‘by: the fists of
the men. Her left eye is: _caiitely &
Swollen shut’ and: her tight eye: hash
sbeom, blackened,

‘Her methe:’ S., lett: eyo: was’ ‘sw

tween. the wriat and elbow, and: “hem

. thren: ehuitch: and was Ths
eho 48360 She. exe: ca of
apy: Ber. Joving. moth HO

shaut,, her right) arm was: broken: be- team umpires

body bore. innumerable bruises “where St
term af cireuit court: the brutes had struck her in’ an. effort

‘to make her ‘tell’ ‘the: hiding: place: ‘off
nonexistent mone’ Mr). "sg
feet were severely. burned’ whers "tiie
thugs had held matches against. them,]
and his head, body and arms are. af
solid mass of bruises’ where they ft

gicy ed go 0 | wuz
Leeann, th ve day: The “evening” Was:
| ing. games, music’ at

struck and punched hira with the-iron er g oth JE)

small | (his right eye shows plainly: Wwhere-hel

gS married wins with two
= be in Dan-
File and the 2 inimedia tely left

Mor that city wher

iwas. struck
Dr. TL W, ‘Hutton, who tpi summon |p

iV" Mentee andthe  fivst pains “to, reach
and Peck as | Schrader home. after ‘the abtaale. i
a the can gone believe sat cither~° Miss
eer ny lar ader or Mi. Weldam will survive.

At tirst neither Mr. Weldam zor,

irom _| Miss Schrader’ gould: give mach ‘of a)

: formation
hthem as to where
c-camviel oul on parole. _| they out @ fair’ description of. t

deseription of the men, but, Thursday P

SS Sn eee Bt Renee aa oe ee Se

tl was ag ps ia ari i ee

His left. eve is. also cloaed,. while if fe

i Dewhirst; Mi, rand Mira Rr
and Mrs. Wayt

v Nyhich nit ‘CIO? i ae A ottie
MD. Hitch! Mrg. ‘Thomas: Berry:

ent Roscoe. Kibler nd hia’ a av
; V congtess th Ye Folk aac BES he

fey a. ge ae fonn a
ft screen nae school!

S hhomes. Berry: Mra. Teo Kittehan
stor Nes; eet nase tay ee

; Pray , Rev. a.

ed a es 1 Ww. Bi one MMsap.

Ban bet, El: ea
Pyceon amd Pred} t

Ma aise and Liovd

Wa rmershnre.

etn tha nied ia ai

TWO SUSPECTS CONFESSED

Shelby and Allen Admit Participation
in Sehrader Torture Murder
Atter hours of questioning by
F State's Attorney Homer Kasserman
‘reinforced by Sheriff C. M. Sowers
@ and Deputy Sheriff George Watkins
(of this city and State’s Attorney J.
- Stanley Bradbury and. Sheriff Joha
Keller of Robinson confessions were

ton, John ANen of Danville, and
sHaroid Peek of Indianapolis Thurs-
| day afternoon and evening. Shelby
and Allen had previously been posi-
tively identified by Bernard Weldam
and his niece Miss Anna Schrader as

ed and robbed them aad Miss Schrad-
e’s mother, Mrs. Mary Sehrader, at
their farm home two miles northeast
of Newton near the St. Peter school,
Tuesday might. inflicting injuries
a which resulted in Mrs. Schrader's
@ death carty Thursday morning,
Forpuil charges of murder have
been made against Shelby, Allen and
aga Peck and they will be brought to trial
=m xt the October term of circuit court,
Syhich mneets Monday, October 9. The

and the latter an accesory.

Roy Bowen of Danville, formerly
of near Hunt City, who was: picked:
“up by Danville authorities and the
f state highway pele e. Wriday, for ques-
tioning in connection with the case,
@ fds been released He proved an alibi
4 9 covering the commission of the crime

Because of rumors reaching th
- sate police that an attempt mayb
“made to murder the witnesses, extra-
4 ordinary precautions are being taken#

Fall suspicieus looking characters are

# negroes from  Psduecrh, Kentucky,

- tioned before being released, after a

‘had been coniiseated. They. claimed

wero thrown in jail over night, also.
PY The corene:'s ingeest was adjourn-
ed Saturday to 3:30 o'clock this after-
nom. Ab tna time, (be jury is ex-

came to her death as a result of in-

recommend thay they be held to the
grand jury.
In their ecouressions, both _ Shelby

‘obtained from Harry Shelhy of Til-|,

two of the three men who had tortur-|

-two former are considered principals fy
Le

@ against trouble. Mr. Weldam andi
% 3fiss Schrader sre under cuard, while &

@ teing picked up. Sunday night four |}

-were ftukon into custody and ques-&
@' high powered rifle in their possession ff

m,to be on ther way to Champaign toi
s attend a funeral Two white men iat

peeted to find tait Mrs. Schrader |!

juries inflicted by the defendants and |

JOSEPH HELMLING INJURED:

ey

ged Man Had Both Legs Broken
‘When Sticis by a Car, Saturday

Joseph “Holtiing, an elderly farm-
ft residing northeast of Newton, was
viously, perhaps fatally, injured
Saturday afternoon about 2:00 o’clock.
‘Our miles east of Newton whem hewwas'
truck by a car driven by Charles
ckert of Chicago. Mr, Helmling.
Bad both legs broken below the: knee,
Whe bones of one piercing the. flesh,
Besides numerous. bruises und other
niuries. ;
While Mr ekert was on his wayt
#0 Newton to secure an ambulance,
Representative’ Glenn Fl. Sunderignd)
@t this city brought the injured mant
Newton, atter which he was taken}
St. Authenv's hespital, Mtingham.
His condition is reported critical. He
Wad been in poor health for several!
Months and this, with his injuries,
7 huy cause his death,
Atcording to the story Mr. Hekert
| Bld following the accident, he was}
iving. west on. Route 383° when, hej
Wortock Mr. and Mrs. Helmling near

i

f

hori? Ce Mk Sowers Caurhti Smilin

CONFESSES BUR!
Steve ‘Harris Admits Starting Blaze
in Which Aged’ Man Was, Anjured

teve Harris, a 71 year old ‘Oblong’

nee of William ‘Snip’: Chipman,
72 year old neighbor, resulting in
latter narrowly escaping being

State’s Attorney J. Stauley Bradbury
ad Doputy Fire Marshal B.D, Th ulley, |
|} CRapman home in revenge aiatnst the |
. ladter. The quarrel is: “sald to, nive
<|hepn over’a woman friend.

from burus ut the Allen Baptist
itarium. in Robinson, following, his
“rescue early Tuesday morning from
burning house in Oblong. Despite

his injuries, he is expected to recover.
A Chapman, who formerly resided

house owned | by Mrs, Lucy Fessler,
abd was trapped ia his room when he
awoke ta find flames reariag from

When He. Brought in the. Prisoners

life Si. Peter cemetery corner. Mrg

i] pelmling was walking on one side af
Iii wowed Ade T4aslesvtivua ave thee

ea;

the walls and ceiling,
“Hurley Beauchamp, a neighbor, ros-

tOTad Mho nwiaw Peas. his MAnwe eed wet

Summer, : Friday: evening :.ahou
pp'clock: ‘when their: CAL WAS. CcE

4 ‘burned. to ‘death, In ‘his confession to. }up

rrig. said that he set, fire “to the}

Mr. CHapman is in 4 serious: Gondi- |’

HWTON MEN HURT IN WRECK

1 Tr. Lupton, anid: ‘Hnrvey. Hoy Injured
When. thefrs Car Was pete Headon.

Thy.
in. the’car with Father -
ir, Ha¥s were: Louis Booker, who..was

ik priving bis adopted: gon Eat nd and.

ident, is ‘being held ‘for. jaz#gon- at|of' ta
Robinson, following. | his.. confession’ t
Thursday to setting fire to: the resi« |

sks ao
on Route 12. they saw a car.appi
ing. § from the weeks which was t tabing:

Poleonnnie the crash ‘their’ Car é

: uw fow'feet and tur ayer on: tts.
“ pinning’ Fatire pte 3
neath with his head. between’ oor”
and: door post. He cand Mr.. Hays:

‘were taken to the- Olney’ sanitarium, «

where’ they have heen receiving: treat:
ment. -

Meanie} was quite druni, accord-
ing’ to officers who: arrested Bim, He
will: beheld to await the: ‘ouitome of |
Father “Lupton's. and Mr “Hays: in-
juries and faces serious. charges.
Pa ee

Strangers. Hurt in Hendon. Collision’


ve

“|. than 30 official and media wit-'
nesses before he was given a
dose of lethal drugs. He was pro-;
nounced dead at 12:24 am., as.
about two dozen death-penalty:
opponents held a vigil outside:

ATS) et

a anese |
executed for
os murders —

Innocence diane |

before lethal injection:

‘By Sue Ellen Christian ;

and Charles Mount
- TRIBUNE STAFF WRITERS. (ie

Convicted triple murderer:
Charles Albanese was executed :
early Wednesday. at ‘Stateville:
‘Correctional Center. near Joliet,

becoming ‘the fourth inmate in™

Illinois to be put to death this

‘year.

4

Albanese, 58, of Spring Grove, |

had no last words for the more:

the prison grounds.

In a statement released earlier '
by his lawyer, Albanese angrily:
maintained that he was innocent
of the crimes for which he was.
convicted, the poisoning deaths:

of three relatives. _

el

Prosecutors maintain that’
greed for power and money:
motivated Albanese to kill his:
‘victims in Lake and McHenry,
‘Counties in 1980 and 1981. and ta;
try to killafourth —

: Throughout the day Tuesday
state and federal courts :refused'

- to grant Albanese a last-minute’
. reprieve of his: death sentence,

and Gov. Jim. Edgar’ refused a

clemency request...
Albanese discouraged his fam:)

‘ily, including his six children,,

.from visiting: him -in prison, —
- Tuesday, his lawyer said. Al:
‘banese did, however, talk to a:

“3

priest, and was communicating, -
with his lawyer by telephone. ahs

Shortly before 8:30 p.m., he
took an oral sedative, which Ili-:
nois prison officials routinely;

offer to condemned inmates int ‘
| the: hours before their exect~
tions. ae
_ ’ About 9 D. m., “Albanese issued’
| a Statement that -he had written’
| a-week ago, intending it to be.

released upon his death, accord:

_ ing to his lawyer, Roger Webber:

“By the time you have read:
this you will have executed an

| innocent. man,” Albanese wrote:

“Truth, justice and the judicial
system is an oxymoron! Not
only have you killed an inno-.
cent man, you have destroyed

| my family, all I have worked for. -
' in life, and allowed someone to

get away with murder. In the
name of ‘justice’ the state
knowingly and willfully allowed
state experts and- witnesses to

commit perjury, partaking in

the fabricated circumstantial

SEE ALBANESE, PAGF 6

4 ty
ie


(tn GO ye
ey ¥ .

7 -20- IS Chicago Tihive:

Albanese —

CONTINUED FRoM PAGE 1,

evidence. The case was choreo-
graphed by the same people who
are supposed to be our PS
against crime.”

Albanese blamed prosetiitors for
allowing at his murder trial the

critical testimony of three witness-
es, including his brother, Michael,
an intended victim who survived.
Webber said ‘Albanese blamed his
brother for the killings of his
father, his mother-in-law and his
wife’s grandmother. Albanese was
convicted, of murder in their deaths

and of attempted murder for trying .

to kill his brother.

Albanese was the fourth Illinois
prisoner to be executed this year
and the sixth since the death penal-
ty was reinstated by the U.S. Su-
preme Court in 1976. One or two
more of the 163 other inmates on
Death Row in Illinois also are
likely to be executed by the end of

the year, said a spokeswoman for

Atty. Gen. Jim ;Ryan.
Only Texas leads Illinois ,in the

_ number of executions performed sO:

far in 1995, with 14;

In August 1980, prosécutors said,
‘Albanese. poisoned Marion Mueller, .
69, and: Mary Lambert, 89, the VS
mother and. grandmother of his

then-wife,- Virginia, when they

came to his Spring Grove home: for

a Sunday dinner.
At.the time, their deaths went un-

explained. But a year ‘later, when

their bodies. were exhumed, offi-
cials. concluded that they had died
from arsenic poisoning.

‘ Prosecutors thaintained that Al-

banese was motivated to kill by

about $60,000 in bank funds, real es-

tate, life insurance payouts and.

pension proceeds that he, obtained

Inthe ' fall of’ 1980, ‘Albanese’s

brother Michael, then: in his early.

30s, began suffering from what was
later determined to be non-lethal
doses of arsenic. Prosecutors later

_ theorized: that the poison: had been
: plae in his lunches at work.

“And in “May 1981,. Albanese’ Ss 69-

~. year-old father, MJ, died’ of what:
tests of his: exhumed’ body showed ©

was arsenic poisoning.

Albanese’s: demotion to treasurer

from president in’ the family com-
pany, Allied Die Casting i in McHen-

ry.
Albanese? ‘iaan't: ‘Arrested - until

‘November 1981, when McHenry

County . investigators linked Al-

‘-banese with arsenic that he had Ob-

tained, ostensibly to “get rid” of
“some pests around the’ house, ” aC
cording to court documents. aa

In. his written statement, which
was directed to the: “State of Ili-

» nois,” Albanese urged: other con:
upon the deaths of the two women.

At the time, Albanese was behind —
on payments to’ satisfy. bank and:
mortgage loans. He also owed ‘child
support from a previous marriage.

demned inmates. to fight their death
sentences.

“To those still on Death Row who

have ‘been convicted because of the.
- injustice of our justice system;

KEEP FIGHTING! Maybe, just
maybe, the people of Ilinois will
wake up to. the injustice. I pray not

too many more people will be exe.

cuted before the People of Ilinois

realize’ that any one of them could —
_ be nex

Those two: poisonings | followed :


4

\
oO

~

SS

D ‘

“Man Who Poisoned 3 Relatives.
m For Inheritance Is Put to Death ©

x : CREST HILL, II, Sept. 20 (AP) —

A’ man was: ‘executed by injection

early today for murdering his father

‘and two other relatives with arsenic-
laced food in an effort to gain inheri-
‘tances and.take over the family busi-
ness.

Charles Albanese, 58, had no final

‘words other than a “thank you’’ to

the prison warden moments before

being put to death.

.:"'Mr. Albanese issued a statement

on Tuesday in which he said he was
not guilty. The justice system, he
said, ‘‘covered up the facts of who
really killed the people I loved and
who really gained from their deaths
and my conviction.”

Mr.: Albanese was convicted in
1982 of murdering his father, Mi-
chael, his mother-in-law, Marion
Mueller, and his wife’s grandmoth-
er, Mary Lambert. He also was con-
victed of attempted murder in the

arsenic poisoning of his brother.

Mrs. Lambert and’ Mrs.: in :
died in August 1980 within days of

having dinner. with Mr. Albanese. .

The authorities attributed the deaths . :
to natural causes until Michael Al-3,

2

banese’s death from acute arsenic”. -

poisoning nine months later.

‘Investigators: discovered. Mr. AL 3

banese had purchased two pounds of ~

arsenic. Prpsecutors said Mr. Alban-. -
ese was after $72,000 in inheritances ,
and control of the family’s lucrative <
trophy business, the Allied Die Cast--» -

ing Corporation.

On Tuesday night the Supreme
Court rejected Mr. Albanese’s peti-
tion for a stay of execution. Earlier
in the day, the United States Court of
Appeals for the Seventh Circuit
turned down the appeal. Gov. Jim

Edgar rejected his petition for clem-.* «.

ency. Wr G-2/-95

SEPTEMBER 20, 1995 ~-CHARLES ALBANESE

a (White) has been on death row since 1982 for
murder of his father, his wife’s mother and grand-
mother by poison. The Illinois Department of
Public Heaith’s Forensic Toxicoiogy.Lab, which
provided crucial evidence in this case, was closed
down by the state in 1986. Subsequent to
Albanese’s conviction a renown toxicologist and
an expert in occupational medicine reviewed the
lab work and environmental tests conducted by
the state and concluded that they were meaning-
less. Additionally the case was tried only 45 days
after the retention of a lawyer and no investigation
or effort was made to challenge the state’s case or
put forward a defense. He had no record of any

prior criminal acts.


JOHN H. WHITE/SUN-TIMES PHOTOS

d early today. The phone (right) brought no repr

s Albanese d

hamber at Stateville state prison, where-Charle:

lieve.

.

ie

sere pe

The execution c

ete ee

Killer Talked
Of Vindication
To Very End

‘By ADRIENNE DRELL

STAFF WRITER

Charles Albanese was a fast-

talking, high-living suburban.

businessman who insisted until
the end that he was framed: |
“Tm not going to die in any
electric chair,” Albanese wrote
to a reporter in 1983, predict-
ing that appeals courts would
reverse three murder ‘convic-

‘tions and’ two death penalty,

sentences.

- Albanese, who was “executed :

early this ae misjudged
the legal system. ©: ‘ :

The former - trophy’ maker
convicted of killing his father,
mother-in-law and third wife’s

~grandmother and crippling his

brother, Michael; also mis-
judged his own ability to ee
away. with the crimes.

In the court, on the ikéas

‘stand and in chats and letters,

Albanese: never appeared wor-
ried. ’

He portrayed iacelt as the
victim of a setup.

“It is so unfair, but don’t
worry. The truth: will out, ” Al-
banese wrote. —

The truth did come out, say
prosecutors and the judges who
said Albanese should die'for his
crimes. They say it was clear
that Albanese paid child sup-
port, mortgage payments and
creditors with the inheritances
from his in-laws and laced his
father’s cookies and his broth-
er’s pea soup with arsenic to

A mug shot of Charles Alban-__
' ese from 1965, when he was

charged with impersonating a.

-police detective and illegally. -

entering a home in Chicago. —

take over the family trophy-
making business.

“I remember the deaths were
all very slow and involved pro-
jectile vomiting, which was
very hard on the victims. I

think the sentence was. war-

ranted by the crimes,”.said IIli-
nois Appellate Court Judge
Lawrence Inglis, who as a trial

- court judge in 1982 sentenced

Albanese to die for the poison-
ing death of Albanese’s moth-
er-in-law.

“He is nothing more than a
con artist,” said former Mc-
Henry County prosecutor Gail
Moreland.

Adrienne Drell covered
Charles Albanese’s murder tri-
als.

fed. 9-20-95
Chy cago Sun-/imes


body on the floor
tied it to the cellar
ame back to the
lean up traces of
Dorothy’s suitcase,
nade up the story
<ansas City.

explain her con-
ing she had run
. At a later date,
to trace her move-
would have been

ade his confession
Circuit Judge W.
ngs. He pleaded
harge, and Judge
to life imprison-

en discovered, had
us prison terms—
‘akota and South
‘aining money un-

that was Parker,”
wife slayer was
ng transferred to

oO greedy, if he'd
have those two
»”’ Claussen went
ected him of any
. Anyway, there’d
on for some time.
cracked the case

ame Janice Berg-
ler to protect. the
tocently involved

res

cattered over the
n pulled up and

n came a low
Jnrih walked to
od everywhere—
1e ceiling.

s slumped in a
were closed, but

from his throat. —

/as covered with

to the arms of
{ his ankles to
Straps. Around
ious man were
His feet were
owing the ghast-
irough,
urned from the
the bed. Their
2 terrifying and
trader lay there.
been torn from
iss of blood and
2 pool of blood.
get help! These

use, across the
where he found
»wers. Freutch-
, trying with-
nister first aid

the inhuman

ner J. W. Hut-
suse within 15
arrived about
Hutton’s pre-
> three téld the
ist and brutali-
1 been raped.

iii tl PRR ep ene Rr EIEN eR
,
/ )

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The ambulance took the three uncon-
scious victims to the hospital in Newton.
Sowers remained at the farmhouse. © .

There wasn’t a room in the house that
hadn’t been ransacked from ceiling to
floor.

In the kitchen the sheriff found a heavy,
blood-stained iron bar, which had ob-
viously been used as a bludgeon to beat
Bernard Weldman. Outside, near the
lane, were signs of tire treads where a
car had been parked. The attackers had
‘walked through the grass,'and the trails
left behind showed there had. been three
of them. &

ATE that night Mary Schrader died

without regaining consciousness. Ber-

‘nard Weldman ‘lingered between life
and death. Anna Schrader, the 47-year-
old daughter of the murdered Mary, was
in a semi-conscious state; the doctors
promised that .she would soon regain
complete consciousness.

In the morning she was able to give
the ghastly details of ¢he attack in a
weak, terrified voice. She told how. she
and her mother and her uncle were in
the front yard about four o’clock when
three men drove up the lane and got out
of their car. One was about 50, tall and
powerfully built, with gray hair. .The sec-
ond was a man around 30 and was of
average height. The third was a little
more than a boy, a youngster with bushy,
blond hair.

They asked the road to Missouri, and
when Bernard Weldman showed them the
direction all three pulled: guns and or-
dered the two women and Weldman in-
to the house. .

Anna said she screamed and one of
the younger men hit her. The 30-year-old
man hit Mrs. Schrader. When -Weldman
tried to help the two women, the, gray-
haired. intruder hit him over the head.
They tore Anna’s dress to shreds, tied her
and her -mother together and took them
into the house where they threw them
on the bed and tied’ their hands and feet
to the bed posts. They put 87-year-old
Weldman in a chair and tied him.

They beat him and demanded to know
where he kept his money. When he said
he had it in the bank, they beat him again
and calléd him a liar, saying he had
$20,000 buried sOmewhere on the farm.
One of the men walked outside and came
back with an iron bar. He beat the old
man over the head with it, and when
he wouldn’t tell them, they took his shoes
off and applied burning matches to his
feet until he fainted from pain.

Then they turned to Mary Schrader.
They beat her with the iron bar, de-
manding that she tell them where the
money was hidden. When she didn’t,
they grabbed her arms and twisted them

_until her wrists: cracked. They left the

house when she fainted.
Anna strained against the wires that
held her tq the. bed. She screamed,

‘kndwing that the house was too far from

the highway or any neighbor for her to
be heard. ,

The three men returned, entered the
bedroom. The gray-haired man_ said,
“We'll make this old man talk.” :

Grabbing the rocking chair. in which
Bernard Weldman was tied, two of the
men pulled it over to the bed. What hap-
pened next was so revolting, so fiendish
that Anna - Schrader .could, give only in-
coherent accounts. Her clothes were torn
from -her body. The men raped her and
her mother time and again. Bernard
Weldman, his small, weak body tied to-
the chair, strained and screamed in his
futile attempt to help the two women.

He swore there was no money in the
house.. When |the men had finished with

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he said to .Free-
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t Banger put his
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looked so promis-
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gray-haired man .

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aw Shelby. Quieted,
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the news’ leaked out that an arrest. had
been made in the Schrader case. Sheriff
Ward questioned both about the murder
of Newton Cozard. At first they denied
it, but when Bireline arrived with a wom-
an who lived next to Shelby’s hide-out
in Tilton and told how she had seen a
bloodstained shirt'on the clothesline the
morning after. Cozard had been killed,
Shelby shrugged and said he might. as
well tell everything.

Allen also admitted he had been pres-
ent when Cozard was killed. He and
Shelby were charged with the murder of
Mary Schrader.

The jury only. took one ballot to find
them guilty. The judge sentenced them
to die in the electric chair. ;
And on the night of December 22,
1933 the ‘two killers walked into the
death house at the state prison. Five
minutes later both were pronounced dead. |
A year later Nichols was located at
Marble Hill, Missouri. He was brought
back to Newton to stand trial. State’s
attorney Kasserman, because of the time
that had elapsed; accepted. a plea of

guilty of manslaughter. Nichols claimed,
and had some grounds for his claim, that
he had been forced to accompany Shelby
and Allen to the murder scenes, He was

“given 14 years at hard labor.

EDITOR’S NOTE: The name Charles
Nichols is fictitious.

®

DESTINATION: DEATH

Continued from page 8

the’ Preston sisters about the shot heard

about the telephone call. The fact that
the phone had seemed to ring puzzled
them, since the killer probably cut the
telephone wires before entering the house.
This point was later cleared up by the
telephone company. The muffled sound
of a “ringing” phone heard by the person
dialing a live number is actually not the
sound of the ring itself. And the signal
would be heard even though the lines had
\been cut.

The officers learned that Mrs. Edmunds
had lived in the house for many years and
owned the property. ‘She had lived alone
since the death of her husband in 1945
except for a time when Mrs. Nell White-
head, a friend, had lived. with her. Her
only relatives, so far as was known,. were
two nieces who lived in the Van Nuys
area’ of the San Fernando Valley. She
wasn’t: believed to have had any money;
she lived on an old age pension.

In the meantime the fingerprint experts
found that the doors, casings and other
areas held. no prints. There were none
- on the glass still remaining in the kitchen,
a place where they were most likely to
“be found, The pieces of glass which had
been broken from the door had shattered
into a hundred small pieces, except for
one small, irregular piece.

‘the Fates seemed to have. preserved,

that a strange print was found. At
first the impression puzzled the experts
dusting the glass. It was a small V-
shaped print. It wasn’t until they studied
it carefully that the decided that it was
| 4 part of the heel of a palm. The strange

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had worn a glove but hadn’t fastened the
glove around his wrist. The opening had
left a tiny V-shaped pattern as the heel
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a shack where he was hiding out in Brook-
ings. In this place the sheriff found
a pair of bloodstained trousers, which
the 50-year-old farmer admitted were his.

He denied that he had killed his wife
and buried her in her own basement.
“T'll explain it all in court,” he said.

The sheriff and State’s Attorney Mc-
Cann set to work at once.to build up an
ironclad case against the husband.

The rifle in Mrs. Parker’s car was
tested by firearms identification experts,
who said it was the murder gun. Parker's
trousers were stained with blood of the
victim’s type and the cloth burned in
the range in the farmhouse kitchen was
— as part of a man’s bloodstained
shirt.

Parker’s act of leaving his wife’s packed
suitcase in the Elkton’ hardware store
and his inability to explain why her car
had been away from the farm from Octo-
ber 24 until November 1 were strong
points against him. Sus

Still, he remained adamant until Mon-
day, November 7, when he waived pre-
liminary arriagnment on a murder charge
~ then told Claussen he was ready to
talk.

Parker said that on October 24, after
Robert had left for school, he picked
up the rifle, intending to go hunting. .

Dorothy began upbraiding him, he said,
for his running around with other women.
They quarreled bitterly.

“The gun—it just went off,” the man
said! “I got scared and shot her again
from: behind.”

Then, he claimed, his mind went blank.
He said he “came to” sitting on a kitchen

oxen peed sale

TR I a TT
‘

chair, with Dorothy’s body on the floor
in front of him. He carried it to the cellar
and buried it, then came back to the
kitchen and tried to clean up traces of
the crime. He packed Dorothy's suitcase,
left it in Elkton, and made up the story
of her having gone to Kansas City.

He had planned to explain her con-
tinued absence by saying she had run
away with another man. At, a’ later date,
he was positive, efforts to trace ‘her move-
ments on October 24 would have been
futile.

An hour after he made his confession
Parker was led before Circuit Judge W.
W. Knight in Brookings. He pleaded
guilty to the murder charge, and Judge
Knight sentenced him to life imprison-
ment. ‘

Pgrker, Sheriff Claussen discovered, had
a record of three previous prison terms—
in Wyoming, North Dakota and South
Dakota, the last for obtaining money un-
der false pretenses.

“Hungry for a dollar, that was Parker,”
the sheriff said as the wife slayer was
led to a cell before being transferred to
the state penitentiary.

“If he hadn't been so greedy, if he'd
have let Sev Anderson have those two
pigs for his load of hay,” Claussen went
on, “nobody’d have suspected him of any
skullduggery, most likely. Anyway, there’d
have been no investigation for some time.
And whether we'd have cracked the case
later on... .”

Eprror’s Note: The name Janice Berg-
strom is fictitious in order to protect. the
identity of a person innocently involved
in this case.

TREASURE OF NEWTON COZARD
Continued from page 29

Bernard Weldman, her brother, lived
with her and her daughter, Anna, 47.
Weldman was 87, a short man wizened
by rheumatism that made his legs a little
bowlegged and his arms twisted and bent.
alent 70 years ago—made him look odd
to the younger generation.

They lived pretty much to themselves,
these three, and to the neighbors they.
seemed like ghosts from the past. There
were no electric lights, no modern con-
veniences. ,

HE morning of August-29 was over-
cast and humid. Carl Freutching and
Bill Unrih were driving into Newton,

the county seat of Jasper County. Both
saw the woman leaning against the mail
box at the entrance to the lane that led
to the Schrader farmhouse.

“Ts Anna Schrader,” Freutching ex-
cent “and something’s happened to
er.”

He brought the car to a skidding stop
a few yards beyond where Anna Schrader

The two men ran back ‘to her.

Her clothes had been torn to shreds,
only partially covering a body that was
a’mass of blood and wounds. Her face
was swollen and purple, and from her
eyes, almost hidden by the swelling, came
a mute, helpless plea.

They got her to the house. The door
was open. Laying the unconscious Anna
Schrader on. one of the old-fashioned
over-stuffed couches, Freutching and
Unrih looked around the room, Every
pes of furniture except. the couch had

n turned over and broken. Pictures

“had been ‘ripped off. the walls, the glass

An old-fashioned beard—the type prev-:

was clinging weakly to the mailbox post.

and frames broken and scattered over the
floor. The rugs had been pulled up and
thrown back.

From a side bedroom came a low
moan. Freutching and Unrih walked to
the door. There was blood: everywhere—
on the floor, the walls, the ceiling.

Bernard Weldman was slumped in a
rocking chair. His eyes were closed, but

low moans were coming from his throat. -

Every part of his body was covered with
blood. :

His hands were tied to the arms of
the chair with wire and his ankles to
the legs of the chair with straps. Around
the feet of the unconscious man were
matches, dozen of them. His feet were
bare and burned black, showing the ghast-
ly torture he had been through.

Freutching and Unrih turned from the
old man and looked at the bed. Their
eyes fell on a sight more terrifying and
more sickening. Mary Schrader lay there.
Most of the clothes had been torn from
her body, which was a mass of blood and
welts. The bed itself was a pool of blood.

Unrih said, “We'd better get help! These
people are dying!”

He ran out of the house, across the
road to the schoolhouse, where he found
a phone to cail Sheriff Sowers.- Freutch-
ing remained at the house, trying with-
out much success to minister first aid
to the three victims of the inhuman
attack. i :

Sheriff “Sowers and Coroner J. W. Hut-
ton were at the farm: house within 15
minutes. The ambulance arrived about
the same time. Doctor Hutton’s pre-
liminary examination of the three tld the
ghastly. story of inhuman lust and brutali-

ty. The two women had been raped. |

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the’ women, they beat him unconscious
with the iron bar.

Dawn was breaking when Anna Schra-
der regained her senses. Somehow, weak
as she was, she managed to get her hands
free. She. untied her feet and then re-
leased her mother and uncle. Both’ were
still unconscious and breathing heavily.
She staggered out -to the highway, where
Freutching and Unrih found ‘her.

‘When Ann Schrader had finished her
terrifying story, the sheriff leaned closer
to her and asked, “This gray-haired man,
the older one—did he have a thumb miss-
ing from his right hand?’-

“Yes,” Anna replied weakly.
member that.” . ;

“I re-

HE NEWS of what had happened at

the Schrader farm spread. over the

countryside like wild fire, leaving
a trail of fierce. anger. The reappearance
of the mysterious gray-haired man with
a missing thumb brought Sheriff Ward
to Newton.

He went immediately. to Sowers’ office.
It was an old story to the two, only this
time with ghastly variations. The gray-
“haired killer and his two youthful com-
panions had left.no clues behind. They
had struck like phantoms and disappeared
the same way.

“I’m positive,” Sowers said, “that these
men are strangers in this community.

seen them before. This means they had
to get information about where the Schra-
ders lived. They stopped somewhere, and
that’s about the only thing we ‘have to
go on. My deputies are asking questions
at all filling stations and farms in the
area.” :

This lead, vague and nebulous at best,
probably would have proved worthless
had not the two sheriffs received help

Schackman, the 14-year-old son of Ed
Schackman, a farmer living outside of
Newton.

He had. been at home_with his father
on that Monday afternoon when a Ford
coupe had stopped at the Schackman
farm. A gray-haired man and a man

asked where the Weldmans lived. While
his father spoke to them, the boy got
a look at the license pYate on the Ford.
When the men finally left he jotted it
down.

It didn’t take Sowers’ deputies long
to get this information from Ed Schack-
man, and within half. an hour after the
news reached headquarters, the Indian-
apolis police were checking that license
number. They phoned back later with
| the information that the license number
had ‘been issued to a George Banger, who

his time in Danville. His parents told
Indianapolis detectives that~Banger was
in Danville and had been there for sev-
eral weeks. - ; ° ;

’ Ward phoned Chief of Police Freeman
in ‘Danville.

“Pick up George Banger,” Ward re-
quested. “Isn’t he the insurance sales-
man who lived in Danville: before mov-
ing to Indianapolis? I think he still
spends a lot of time in Danville.”

“We'll have him at -headquarters by
oa time you get here,” Freeman prom-
ised.

George Banger was with Chief Free-
man when thé two sheriffs arrived in
Danville. He was puzzled. ;

_. “I put my car in the Sikes Garage,” he
said calmly. “I can’t explain. how it got
down around Newton. The engine wasn’t
working well, and’ I wanted it tuned up.
You can check with the garage.”

’ Lieutenant Bireline walked into the of-

\Anna- Schrader was sure she had never.

from an. unexpected source—Clarence.

much younger got out of the car and

lived in Indianapolis but spent much of ~

\

_ fice. “It’s okay, Chief,” he said to Free-

man. “I talked with the men at‘the Sikes
Garage. They say that Banger put his
car in there yesterday morning for a
tune-up. They were busy and couldn't
get to it until today. They found that
someone had used it and then brought it
back.

The lead which had looked so promis-
ing had suddenly faded out. But it did
locate the killers in Danville, and to Ward
it was apparent that one of them knew
something about the Sikes Garage.

“There’s a back door to. that garage,”
Ward recalled. .“It’s usually locked, so
the thief must have had a key. One of
the killers either works there, has worked
there or has a close friend who does.”

HE two sheriffs, aided by Freeman,
7 | Lieutenant Bireline and Detectives
Smith and Morrisay, followed this line
of investigation. The murder car was

taken to headquarters where it was check- —

ed for fingerprints. The car was covered
with smudged: prints, but none of them
proved clear enough to be of value.
Bireline and Smith obtained a list of
all former employees of the garage.. On
this list -was the name of John Allen.

“He’s a bad one,” Bireline commented..

“He isn’t gray-haired and he hasn't got
a missing thumb, but he’s mixed up with
, a couple of other guys who are more
or less strangers here in Danville.”

. “Don’t pick him up,” Freeman told
the detectives. “We haven't anything on
him. Watch his friends.”

The job of shadowing Allen was given

to Patrolman Herman Goldstein, who had
the beat in the rough section of Dan-
ville. Twenty-four hours later he reported
to Chief Freeman.
. “Allen has been seen with a couple
of men who are strangers around here,”
he said. “One is Charles Nichols and
the bther is Harry Shelby, who is 50,
gray-haired and has a thumb missing from
his right hand. I guess he’s the man
you want. He’s got a bad record. I
can pick Allen up. any time you say the
word.”

“Get going,” Freeman ordered. “I'll
take Bireline and. Sheriff Ward with me
to get this Shelby. Where is Nichols?”

“The word among the boys is that he
hasn't been seen for the last two days,”
Goldstein answered. “He probably beat
it.”

While Goldstein went out to pick up
‘Allen, the three senior officers started
for Tilton, some ten miles from Dan-
ville.

In Danville they sent a delivery boy
to tell Shelby he, was wanted on the
phone at the grocery store. He fell for
the trap, and when he walked into the
store the three officers had him covered.

“Okay,” he growled, “don’t get rough.
What do you want with me?”

“Come along,” Ward snapped “and
we'll tell you.” ae

Allen was at headquarters when the
three officers’ walked in with Shelby.
Both Allen and Shelby denied any knowl-
edge of Banger’s car or of the murder
of Schrader. The officers didn’t bother
to question them. They were taken down
to Vermillion County.

Ed Shackman took one look at them
and said, “Sure that gray-haired man
was one of the group who got out of
the car. The young guy stayed in the
car.”

Shelby and Allen were taken to Anna
Schrader’s hospital room. She screamed
with terror when she saw Shelby. Quieted,
she identified him and Allen without any
hesitation.

The two were slipped into. the Ver-
million County jail and locked up before

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OU fused Fo Nese Questions will
hig e8tON for the | seem Coufuged, for Me. Welk ALIKE spoke

| | ga defendants, ta his Dlea, My
uy ,

APE SUTUTEC Up the conclusive. char.
actev Of the evicene

- i ‘Hee against them, They. came there; Mra, Sebr
rom, N - Inia tye sc age hat they hag been Positively ident;. Anna were there; Tj AO Ue £ Po ny
fe FPG OWS wet aM fled by Bernard Weldam and Migs feeding; they wanted to. stay iat: Ei
fae”) Se ADA Schradey as being tyo of the School. house, and. wanted to: yw i
ofao/33 | three men whe bed beaten and tor. How

the directors would allow: 4 Hs How)
nuiny of, fhtim Were there? 7 only:
Saw LW.” Miss’ Anna sdid-— Nudge
Yelvingtons: f Objpet. de must. tell
What. he knows, . bJection Sustained,
T only sitw two. Which two: did.
YOu see? T saw those two (Indieatin
Shelby and Allen). Did oither of the
def endants have a gun? I did- not geée
By

What’ did they do after you went

Wa tured them on the night of August

% aud had gg Severely beaten Mrs.
Mary Schrader that she haq died ear.
By con August 91 trom concussion of
@the brain trom ag fractured skull, and
possibly ag a, result of criminal at.
mlacks on Treg: besides having con.
fessed ty being on the scene of the
aime for the Purpose of robbery, ‘Th
i his finat SUM ming: up, Mr. Kasser-
oad man asked the jury -to 49$Ure the

Set

into the house ? (Impossible to hear °
ag 20d -Wothers thal they would be/all of answer) ‘They took me inside
meres Irom attack. and shut the door, Stepped on my
ef Mr, Velving ton and Myr, MeColley throat; asked. where: the Inoney wag,
“ Mamteach spole of the burden of proof! Did YOu see what they did. to Mra:}.
bid bein on the People to Prove the of. Schrader ?: I did not se
ei

Bm nse beyond a reasonable doubt, ard
wag ended to cast doubt on other room. Did you gee; bur
MP YESS OF the identification, due to the

am conditions Under which th

that night? No, “Did you
© witnesseg ? aa ae
saw the mien,

f . ;
iz They algo attacked I did not see Mary but heard hi
H the contessiong 1S obtained ~ wider talking; say her about’ nineghe ihext']
3 duress, Hoan | OrMng. ‘Tell the jury whether
iw. Members of the jury were: Oliver was marked or injured?
Em Cleaver, foreman, 35; Biza Allison, any marks: - Did your
em 40: Charleg Kerner, 36; Milo Flynn, Yas, Do-yoti remembe
ge3; Raymond Wagner, 383; T. Q, died? About twenty four hou
Wa Fischer, 32: Kilroy Sprague, 28; Ura} What did , the fi
Fi) Swank, 28: ‘Truman Bickers, . 29:! the house? 1 ¥ t
BAT Emitc Meurlott, 53: George -w, . Le-}t
gi May, 53: and Clarence Allen, 35,
To obtain gy jury, Seventyssix venire-

men were examined, ang thirty. of | my dy. ean;
fag these wery excused by the defense on bleeding. When did Youlsve t}
NG peremptory Challenees, largely at the fendanta MERE? (Auswel ’ Lin
gam request. of Shelby, who really picked | Did YOU go to Robinson? ;
ia the jury, The state excused one man,/then there, ° Did. you':see
ggand one disqualifica himself by ex- NO,
i pressing conscientious ga rupleg
Ag against capital punishment.
a The Jury was obtained at noon
134

Auna was back in- the ¢

Do you know what county ‘you live
in? Yes, Jasper county, | And what
State? Ilinois, Is that where this
mean with Mp, Kasserman’g Opening | Judge Xelvington, cross examliig.
a slatement to (he jury of what the tion. Do you know me, Mi,

i. state expected lO prove. Efe was fol- I know your 1 have seen yo
ix iowed by Mr, Yelvington, who told Dea know. that nan, Ove
Sigel (he Jury that the burden of proof wag (indicating Mr. McColley,) ": 1
fon the state. seen him “before, He is Georg

Colley. Eow old are you? Liat
84 j pape

The — first Witness wag Ralph
ig Schackruann, 16 Year old son of Mr,
pom and Mrs. Kd Schackmann of St. Peter

’

Did you'ever Use eye

im Vclnity, who told of & min whom he but. I an gettin
iam identified 43 Shelby by the fact that What do: rou:
whe had hig Jeft thumb ogg, visiting his |,

Wv@ home szid asking where two bachelor place? |
i brothers lived. After naming — over | Ikind for ¢
several persona, he tinally mentioned What. t]
TEM the Weldams, and Shelby, who then these men!
iM nad his lest haud on a porch post,/was 9 litt)
We scid “That's them." After the men| were you. when +t oye
Gm drove Away, Ralph and hig ay feeding the horse. at

think,

Ja Clatence became suspicions, went to


wil} get wnder way. State’s Attorney mong: the field. although, hedded: well Crowley taking éare Of It ina beau{sons Hubert anc
ward the stratosphere, vertically, | tful i catch. to:make two.away! Wiltse}diante; Mr. and

e Kasserman plans to ask. for thet

Fd@eath penalty. What Hne of defense | give Newton's second sc chance, [again oubled;. “Rusk batted - ‘fon{ Bir oyand. Mrs. C
Shelby and Alen will employ is un-/MeClane lugged the balfto the five|Schtiell and dreve ohe out to: ‘deep{daughters Betty
f known. Wheu first arrested, Shelby |¥ard line and a first dofn with goal|center which Hansenstook eare of in}danet,. and Mr.
E said le would piead guilty and wanted {4p go. seemed imminent ut. McClane la benutifig rgsning catch to end thefterser, of Indian
‘the electtic chair, but meditation in|Test four yards on jan attempted game. 8h Bik Site Saas * cate gees ‘Davidson called
jail hag evidently chunged his mind. |S#veeping end run ang the chance fad-| One’ of the most -unasual occury BAe PE
"the two men are charged with) efi with an incomplete “ . Tpeingeg in Base hall took: place in the| Mrs. Lueinda Par
-gssaulting and torturing Mrs. Schra-jjq Rain,. at first. Hight, and then} fixst” oa wher Wiltae. struck out} © ‘Becomibe >
der so fiendishly on the night of |@enching, started jwith. the second |four batters; The tules being. thet{.°: out e
E August 29 at her residence near the | Mplf but the cold, food didn’t: prevent} the batsman: run out the third strike / Mrs:

St Peter schovi that ber death re- | f ewton from twice ‘more. getting if. the catcher fails. to hold the. ball: Heth: birthd:
-guiied. In addition to their other) § {the goal. .The ball In- this. inning. the catcher failed o1 Spe" Mr. and
-qrimes they acted like beasts. and McFarland twice. to ‘two different occasions.
criminally assaulted ber and her|tgrminate goalward marches, and a “Newton (1Y 9. ABe BR ee: a
daughter, Miss Anna Schrader, four | Stubborn defen @ prevented scoring on. #Rotir, as 8d
‘times each. At the same time they ‘éyen better opportunities for. Newton. Weber, ¢ ene: 0:

Feyeat Bernard Weldam, who is 384/42 ° \Ibion kicked’ or “erl-} Hansen, cf <2
if

| raigned for murder ANG LUWeIr | eriear pppvussao aaus  senenacem _

Pevears oi age, over the head, face,|@pavored to lip
harms and body with an iron bar, and ; time, th Ee.
Fpurned his feet with matches until) nd losing ¥é
‘they were blistered. They remained |BRi all: Of
for nearly four hours, before leaving. | 4

The third member of the bandit trio}:

named in the indictment, Harl Stark, );,

}

Oy Mrs Tucinds: L
Joho Parker; Mr.
Qjer;:Mr,. and Mrs

ewtou— if} SN ENTS o y ATBiaSL POGOe
lay City (0)

2

OM. and]
daughter Bernett

- has not been apprehended, but a re- | “ames we 6h LT Annis! © ; ;
' yentless search is being made for him |/dohnson / EG Longbons|M. “Schnell, ct 1 queen 4)Parker: David ©
f in all bes known haunts. He  will|@. Jones c Stewart | Tucker,.. 8 eee tape ‘Merritt Brown; 1
P eventually be caught aud brought | Bubsam RG __. , -Barber|Chastteenn, ,3b° --- nd: Mrs Millard
E.yack for trial. : derson RT oe Johnson | Wiltse,. ‘pe -+-- fan Dorris, Cloy
| During the grand jury” investiga-| # Jones RE __  Chaleraft} 2) Schn Hie and Sys
ion of this case, Monday, Mr. Weldam | 2 cClane QB Bunting | - Qbbowell Brackett «

and Miss Schrader appeared and testi- || Biel LAB YY. -. + Wiles “», @] Babetle; Dale a:
Marshall. RHB Rodgers: o ‘Mrs. .'Panker Bra

fied to their harrowing’ experiences. |\¢ :
a. Jones; FB ; Sefert/P. Hunley, lf 24. ‘o/ Biya: May: Mr. a

The latter appeared badly frightened, ||¥ Ao ow, ah Ys

fas she might well be, in view of her} a Captain Weber was out of the line-|. Totalg _-.---_--- 310 4 —° 6{ Stanley and sons
experience and the recent attempts to |p. with boils and McFarland and| Rusk batted for E. Schnell in the [and Mrs, Howaré
fones. played with injuries. ninth. | ot of Mr. and Mrs, Le

terrorize her uncle and herself, gah. aye i, =.
Fdescribed in’ an adjoining column of} Substitutions: McFarland for Diel; “Summary—One base: hits: ‘Hansen, }Lon Jr.; Mrs. Job
falbion. Utley for Abbv: Toker sand Rusk Tren hace hits: dran Time Pars

ithe Press.
| The crime is one of the most revelv- |:
ing in American criminal annals and |)
will undoubtedly go down in criminal «
history as:one of the famous. cases of
ail ume. It-has: attracted nationwide
attention and everywhere people voice;
‘the opinion that nothing short. of the}
electric chair is enough punishment
for them, Stories prevalent in New- |,
ton during the past few days that
Hpecause Mrs. Schrader did not. die at
once, her attackers can only be tried
fior manslaughter are misconceptions
fof the facts. Under the law if. ay
victim, of an assault dies: within a year}
and a day of the attack,'‘He is pre-/ _
Fsumed to have died from the effects | a
of the assault and it is murder. If)
he lives more than a year and a day,| x
he ig presumed to have died . from’
other causes. :
| In addition to the four bills return-
ad against Shelby, Allen and Stark,
‘the grand jury returned seven other
‘(udictments, viz: Roscoe Hooker’ and
‘Leon Hooker, assault to commit mur+
der; Howard Jourdan, burglary and:
iarceny,. two bills; William Kesaler,
‘forgery; Lee Robins, alias L. Robins,
confidence game; Hugh Swick, purg-
lary and larceny; and David Wag-
. goner, assault. with a deadly. weapon.
Nota true bill was voted againgt
Frank Wagner andsMrg. Eliza Max-
well. mat :

Members of the grand jury: Grever
} Beavers, foreman, Fox;. Wiliam. Me-
Kinley, Grandville; L. BR. Clark and
} John El. Jones, Crooked Creek: Andy
' Foltz, Grove: William Henderson, B.


LAURENCE i.

f

pt cia

Seas

“SHLUP, EDITOR “AND PUBLISHE I

Meh Ay ane ne

ha ul

5) RIDA j

NE wi dN, LLIN ors

eet gman enon’,

SHnD levery TUBSPAY AND. R RIDAY.

|

ease Se

igsewteise
Say

Case Without
en Their Behalf
Harry Shelby and John Allen were
round guilty of the raurder of Mrs
Mary Schrader, by a jury in the Jas-
yor eouRLYy ein tutit court early Thurs-

Closed Their

Any
Hvidence

day morning, and their penalty WAS |
fixed af death in the electrie chair. |
P Judge Thomas M. Jett wilh pass for-

aged setheuce mext a Way, Whieh ;
he Wi pass om a motien Yor 4
crinl. Tf this is overruled, as exe i
P pected, te will set the date fer their
y execution, which will take plave in
Bone Southern TWinois penitentiary at
Chester,

They reeelved the

RY

Hew

ease at 11:02 p.
paived al a verdich af 8:15 a. am., four
vours and thirteen minutes later. ‘The
cardict was opened and rend by Judge
foul in the presence of the prisoners
roseculing and defense attorneys and
nthers at 3:40.
wken by members of the jury, it was
sported later.

Under the guard of Sheriff Cy M,
nawers, Deputy Sheriff George Wats
yins and sev eral highway police of-
the prisoners were brought. in-

feers

court about 3:35, Judge Jett, who
iad arrived wu few minutes before,
‘mounted the bench and said, “Mr,

idicer, Dring in the jury.” They.
voy filed ins and after they were

«ated, Judge Jett opened the verdict
aid vead first the verdict finding
cheiby guilty and sentencing him to

th and next that in respect .to
en giving a slnllar gentenee. Bach
Fine be asked "Ts that your verdict,”
A ed all replied it waa, |

snetby and Allon both took the yer-
det Wiltout emotion, ‘Allen possibly
palo a Little, Dut his. face otherwise
reputed aamchaneed, but Shelby
opacked oa osurile cand immediately
made some wiscerack La Allen,
me lowing Usis foey wore taken back to

the. jail hy

Olricers,
The case had gone to the jury,
‘after arguments by Homer Kagser-

gman for (he state, and George W, Me-

Colley und Milo Id, Yelvington for the
defendants. Ta his plea, Mr. Kasser-
man surmimecd up the conclusive char-
macter Of the evidence against them,
yaa that they had been posttively identi-
wie fied by Bernard Weldam and Miss
MAnnA Schrader as being two of the
three men who bhacd+beaten and tor-
tured them oon the night of August
ag29, aud had so severely beaten Mrs.
jaya Mary Schrader that she had died .ear-

lyon August &l from concussion of
the brain from a fractured skull, and
possibly as oa, result of criminal at-
miacks on her; besides having  con-
Wfessed to being on the scene of the
crime for the purpose of rebbery, ‘In
dis final summing up, Mr. Kasser-
man asked the jury to assure the
Berand-motbers thal they would be
free ror attack,

Mr. Velvington und Mr, MeColley
Meach spolke of the burden of proof

being on the people to prove the of-

fense beyond a ransphiable doubt, and
gf tended to cast doubt on the positive-
Buess of the identification, due to the
HZ conditions under which the witnesses
mow the men. They also attacked

Pthe confessions as obtained — under
@ juress.

Members of the jury were:
Pe Cleaver, Coreman, 35; Wlza
40; Charles Kerner, 36; Milo Flynn,
ag 23; Raymond Wagner, 33; T. OQ,
vag Fischer, 32; IKilvoy Sprague, 28; Ura
laswaulr, 28; Truman Bickers, 29;
ae Emie Meurlolt, 63: George W. . Le-
May, 53; and Clarence Allen, 35.

To obtain a jury, seventy-six venire-
men were examined, and thirty. of
pagthese were excused by the defense on
hg peremptory challenges, largely at the
amarequest of Shelby, who really picked
the jury. The state excused one man,
and one disqualified Himself by ex-
pressing conscientious scruples
Magainst capilal punishment,

The jury was obtained at noon
mMiruesday and the afternoon session be-
@gan with Mr, Kassernian’s opening’
Wastalemcot to the jury of what the

Oliver
Allison,

DERPENDANTS MDNR. TEST ry}.

m and announced that they had ar-,

Only one ballot was.

Fol- |

1Yes,

SHELBY AND ALLEN GIVEN DEATH IN ELECTRIC. y
CHAIR FOR MURDER OF MRS. MARY SCHRADER

ee eee

isoners Showed No E Imotion’ When hry g. Mevdict Was
Read at 3:40 a. m., Thursday 5 Only One Ballots : a)
Necessary to Reach a D cision It Is Reported - ¥

'

the home of Wil Mth, & helen bor
and the three, with Otte, Hippler, ob+
tained the license number of the car,
Tudiana 56-644" Ralph said: he recog
nized Shelby in the. ear as it passed
them on the road near, St. ' Peter
school, where they: were: parked lodk-
Ing fox the men. .

Clarente Schackmann and Will
[Menke next took the stand and testi:
ifted tO Sitnilar facts, and O&to Hipy-
For resiifted W Tednesday morning
George Fear next told ef secing af.

onr Rearing Indian ‘“Heense 4
istap in front ox the old: Maples
On Route 3a. two. miles east of — che
Schrader . mouie at. BP otelock. Tuesday
morEeng, August 29,. "The. ‘men. ene

grgod him in. conversation, * asking
for the Schrader home, Shelby doing |}.
the talking. He' Also ‘notived : the |
nissing Jeft thumb and positively
identitied Sholby and Allen aa the to
men Who asked About. the Schrader
home. Under cross examination; bis
testiniony was unsliaken, He.’ also
told of accompanying Sheriff Sowers
and identifying Shelby Ant. “Aden: aster
their arrest,

‘Bertarad Weldam aged victim, ‘of-the
torture .attacle, wat yt ext: vietini.
In spite of his age of 84 past, and jis
terrible experience, be was a good
witness, although much of his testi
mony was. given {ta Volee. fob. low!
to be heard. Much. of hig” testimony
and .all of Miss’ Ann. Schrader’s:, is
given'verbatim as taken down in the
court reom by, Miss, Florence Bruner
in shorthand: Miss Schrader WAS Ap-
parently on the verge of a nervous
breakdown and gave nearly all of har
answers in wu monotone, bit when ask-
od if she saw the men who attacked
her, she juinped up from the witness
stand, rushed over (o where: Allet. and
Shelby" Awere altting, dha dn’ go-loud,
clear voice, packed with charadter,
pointed them out.

Testimony of Bernard Weldam |
State’s Attorney ‘Kasserman: Do you
recall the: night of August 39): 19337)
Tell. the jury. what, happert :
that: mipht.at yor ‘pouse. : (The ans
swers to some of these questions, will
seem confused, for Mr Weldanr spoke.
in such a. low voiee that dt was: im-
possible to understand all) he. sald.)

They. came there; Mrs, Schrader ‘and
Annu were there; T Just came ih from.
feeding; they wantéd to. atay ‘até the
school house, and wanted to: khow it
the directors would allow dt. How!
muiny of. them werd there 2 t only
saw two, Miss Anna said = hidge
Yelvington: 1 ‘object. He must. tell
what he. knows. | Objection. sustained,

I only SRW , two. Which two. did
you see? I saw those two (Indicating
Shelby and Allen). Did oither of the
defendants have a gun’? I did not Kee
any.

What’, aia ihey do atter ‘your. weit,
into the house? (Impossible to hear
all of answer) ‘They tool: me. inside
and shut the door | Stepped on my
throat; asked, whete the money: was.
Did you see what they did.te Mrs:
Schrader? 1 did not see anything;
Auns, was back in the corner of the
other room. Did you see’ your slater
that night?. No, Did. you abe her the.
next day? ‘Yes.

I did not see Mary put heard: her
talking; saw her about ninégflie Dext
morning. ‘Tell the jury whether she
wes marked or infured? TI did not see
any marks. Did your ‘sister. die?
Yes, Do you remember what day abe
died? About twenty four hours later.

What did they do.to the thside of
the house? ‘They tore down the pic-
tures and threw them on thé floor.
What did. they do to you? Boat: “me
with a pistgl around upper , part® ‘or
my body. | ‘My; face: and: pose. were
bleeding. When did you see thése, dos
fendants next? .. (Answer vs unheard):
Did you go to Robinson 7 ¥es, T saw
them there, Did. you: §00! ‘them qeny,
more uhtil today? No,

Do you know what ounty ‘you live
in? Yes, Jasper county. And what
state? IlMnois, Is that where this,
took place? Yes.

Judge Yelvington, cross examina-
tion. Do you know me, Mr, Weldam ?

-_

poo

ae

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ara


LAUREN CE in. SHUP, 1 DITOR AND PUBLISHER

reenter na Mer cee leben siete pap mentee

N EWTON, THLINOIS FRI

nie enone So. esata aan meted oad

“PUBLISE IND

D BEVERY TUESDAY AND FRID.

PECK TAKEN TO DANVIL LE

and Other Crimes

Danville, Octoder 11.--Marold Pack-
paugh, aliag Harold Peck,
“Sptke”
of Mrs.

torture” murder

Schrader, -w

f port made, Tuesday. - Four other
| true bills were found against him for
zdditional offenses, it is reported.
Peck, and Jehn Allen, one of the
men indicted at Newton for the mur-
jer of Mrs. Schrader, August 29, were
® indicted here on a charge of robbery,
me armed with a deadly weapon. It is
charged in the indictment that they
antered the home of Joseph Meyers in
South Danville, on January 11, hold-
fa og up Meyers, his son, Edward Mey-
@ es, and Hershie Wilson.
Sheriff I. W. Ward-+ and Chief

Newton,
Peck to Danville. He formerly lived
mere and had been dividing his time
between this city and Indianapolis

the murder of Mrs. Schrader.

Harris Pieaded Guilty to Assault
Robinson, October 11.~—After taking:
most of the afternoon to tell a jury
he was not guilty of setting fire to
the home of William “Snip” Chap-
man Of Oblong on August 28.
Stephen “Steve” Harris entered his
plea Of guilty hefore Judge W. Joe

Hill on a charge of assault with in-
teat to commit - murder and was
sentenced to serve one to fourteen

‘ars in the penitentiary.

Harris took the witness stand in his
own behalf Friday afternoon after the
state had presented a number of wit-
cesses and a purported confession
made by Harris shortly after his ar-
rest.. Harris testified that he was
grilled for over two hours by the local
officers and did not. remember mak-
girg a) “confession,” He insisted
# whroughout the trial that he was not
guilty but upon the completion of his
ostimony and a conference With his
gitorney he came before the judge to
padmit his guilt on a lesser charge.
The arson charge was then dismissed.

In passing sentence, Judge Hill rep-
iimanded the defendant severely for
‘aking the witness stand and testify-
was not guilty and then ad-

ing he
gutting
lar atcenas A scabs sad,

Vanted There for ‘Robbery with a Gun |

alias
; Peck, one of the three men
F held at Newton. in connection with the
Mary}
was indicted by the Ver-|
milion county grand jury in a partial

Deputy Sheriff Wiliam Ryan went to/’
Tuesday afternoon to return

THE QRIM REAPER

Mrs. Sophia Albert

‘ritten for the Press.
Mrs. Sophia Albert was born April
E), 1857 and after an Hiness, or three
eeks at her home near Hidalgo, ae
Detober 5, 1988, at the age of

Poars,: 5 months, and 20 days. She
as the fourth of BeVen children of
fr, and Mrs. John hott, who came
io America from. ned : Bamberg, Ger-
any, about’ 1850; Ber elder sister
barbara being born : in \ Germany; her
der brother John at C \cinnati, Ohio;

reensburg, Indiana. hen she was
ist a child, her parent came yet
rther west, traveling byiwagon to
inois, settling near Flazel\Dell,, and
ter living near Point Plegsant and
ose Fill. ¥
As quite @ young girl, s he
rhing her own way, living ¥
ichard family near Yale foR
ars and with the Dodd family
wscola, two years, For the lash fifty-
e years she has resided in the aiiays

began
vith the
. seven.
near

prier to his arrest in connection with

Ther in death September 16, 192.

his gull shortly afterwards. | keenly having’ people about. her, Fer
‘home was always bright. with. hos-

Special Poultry Meeting

She

ynmunity west of Hidalgo, 4

On May 30, 1878, she was nite
1 marriage to John Albert, who b*,
Civil war veteran of the Nix iy:
pnth Ilindis Infantry and pre 1 oe
;'To
their union five children -wew ‘bo rn,
Henry, Mary, and Eliza. Hing | RS
children, and William andy Charles
surviving. Net only to het Fown ni}
dren, but to several gengfations ‘she
has beens mother- four | top-children,
Mary, Elva, John, axf€d “Ora;. het
grand-daughter Berthg a grand-son, }
Ray; and a great gyind-son,: Hdgar; |}
and to many peoplg she was always
Aunt Soph.
She leaves to

lo

burn her death two
brothers, John M. Shott of: Newton,
and Henry Shott Ht of Rose Hill; ‘one
sister, Mrs, Jey me (Trace) White of
Vandalia; twg sons, William Albert
of Greenup afid Charles Albert. of Hi-
dalgo; threg grand-children, Bertha,
Elmer, and Ray; five great prand-

children: ghe step-daughter, Mrs, Eva
Lemay; pWwenty-one atep- grand- -chil-
dren; a many other relatives and
friends

As @ young woman, she bedaine a
member ef the Methodist church and
cherished. deeply the fundamental
teachings of christianity.

Her long life has been rich’ with
friendships and achievement. was
instinctive for her to believe ‘the best |
of the people ‘she knew. She enjoyed

her - boundless.

nd she and her sister’ \Christina at}

YALE LOST TO GREENUP
Cumberland Boys Took: igcoend of
Three Game Series

© Ne re tien,

¥ ‘ale, ‘Octobor 12.

--Greeiup took the

pitality;

Was

PeNnerosity

over enger to ‘be doing’ the

Yaa AFA

}
+
i
}

|

t
1 $0;

second swame,, Sunday, | ‘nm the’ three- |
an sees clnigaghiens he ‘Yale: Cubs | #
6+and “tE

ts, by the | Ch
3 Th

his adventure is being told to thouss |

close scum he day was!
rainy and ° ‘i Lan Pe was Gifri- | Me
cult under th@gonditidis’ Errors on rac
‘both sides ‘countey the scoring, and | 0?
the breaks of the ™agme determined
the winner, as there fee ttle: difter- |
ence ‘between: the teams OR P play.}
Because better cxdwds attend the | 2°
pames ‘here,’ the third game wil&be |Y! |
played at Yale next Sinden” Ship= an
man and Wilson will do the pitching | F<
for 3 will be working |°! |
hard to ma ce it two out of. three bri
wins over the Lincoln Trail. teague | Ba:
champions. _ We
Greenup. AB. Rac dscoE
Vu Piints Bice i) A Oh
Brewer, of Race So Ee OTF
Peres, © eM ee a Ror eg OF
Mitus, ib SO Oj cor
Fe STUNG ee ag i Oe ag pa
PU re a gts.
Bl Janine, 2bs aioe wl ee Be gf att
SBA poe aden a ee go] Mas
Duloy,. 22 Sober foe hehe ks CODES OF FTHC
‘Totals Rig ec aes Sie ae oaesk OUR 9 CR EW
Vales: AB ROH E
Marshall, $8. 2.2... ni tceaig  SE O O
Collins, 2b. stetpetete ‘Se ae 3
Chaney, Sho. at Bee OO] RB
io /C. Monroney, Ib-3b 2 9. tof sat
Rillman, Pe oc 8 ey A gf Rol
hWiman, Sb-phiuco Pe oa © ofand
Bougias, ef. kak Oo of tod
Wilson, rely ag fe RO COM
sm Monroney, 1 oc ap whe
Hammett? “Sivoo ae es a od
Shipman, Riese Ag Ee eas | Pes!
Totela fore eek Be 8 7 SON
simenare “Strike outs: Shull, 8; [Joh
Shipman, 9; Wimah, 5. Bages. on halis: | Mu
Off Shull, 8; off Shipman, 2 Three} Ha:
base hit: Shipnian. . Two base hits: | Me
V. Pint, Jenu ne, C. Monroney, and /S2n
Billman. Rok
if pe aes Wa;
‘Thursday Was Columbus, Day Mas
Joni
Christopher, Columbus --who- discov ‘
ered a continent and: die IA Chains
suw the strange light of San Salvador
441 years ago, Wednesday night. .
Thursday this nation’ revered his 1
memory with tributes to the dreamer {PTO
who sotight the’ east by. going west |fors
and who. dicd without knowing what {PTO
he had done, Oo
Speakers extolled the virtues and) sche
courage of Columbus. The story ot) Weill
2° st


PALO LO a

Witness
Continued from Page 1
they would watch the execu-
tion. Before entering they were
handed a typed page contain-
ing Albanese’s last words, an
angry protest of i innocence. ©
The witnesses sat “in orange
plastic chairs with a corrections
guard on either side of the

viewing window. A minute later
a tan muslin curtain was

-opened, and they saw Albanese
-on the gurney in the harebly. lit

white-walled room. *~*
Albanese was dressed in a.

light blue shirt and dark blue
pants, but on the gurney all’
that could be seen was a white
sheet pulled up to his head.

The drugs were administered
and there was hushed silence
inside the witness room save
for the hurried scratchings of
pencils on reporters’ notebooks.
The six official -witnesses,.-in-
cluding prosecutors, sat. stone-
faced and watched in silence.

At 12:21, the warden ordered
that the curtain be drawn
closed.

No Albanese family member
called or visited Albanese on his
last day, state prison officials

said. In final hours he took.

mass from a prison chaplain.

-Webber shortly before Alban-
ese’ s execution: cas

_ By the time. you have: feed

this, you will have executed an

innocent man.
Truth—Justice and the Judi-

- cial System is an oxymoron!

Not only have you killed an
innocent man, you have de-

stroyed my family, all | have

worked for in life, and allowed
someone to get away with mur-
der.

In the name of ‘justice’ the
State knowingly and wilfully al-

lowed state experts and wit-

nesses to commit perjury, par-
taking in the fabricated circum-
stantial evidence case
choreographed by the same
people who are supposed to be

) PARTING SHOT

‘The final. “etal ement from |
- Charles. ‘Albanes: | -
through his. attor Roger

our protectors against crime.
_ This conviction, as are oth-
ers, was gotten not for justice
but for personal gain.

They knowingly and wilfully.

allowed Rudolph Schaefer,
Fred Townsend and Michael Al-
banese Jr., to lie to get this
conviction. By doing so, they
covered up the facts of who

- really killed the people | loved

and who really gained from
their deaths and my conviction.

To those still on death row
who have been convicted ‘be-
cause of the injustice of our
Justice System, KEEP FIGHT-
ING!!

Maybe, just maybe, the peo-
ple of Illinois will wake up to

the injustice. | pray not too.

many more innocent people will
be executed before the people
Of Illinois realize that any one of
them could be next.

Q>
ES

os es

56 ae Tee

ee a ae se OT

te ee ee
¢

Continued from Page 1 °

cution chamber at Stateville:Cor- é
rectional Center near Joliet short- -
ly after 12:13 a.m. and strapped to-

a gurney.

Once in the execution chamber

Albanese said nothing, except to
thank’ Stateville Warden George
DeTella.

Intravenous tubes were placed
in each of Albanese’s arms, and‘a
lethal dose of drugs was injected.

He then looked straight up and

blinked rapidly. As the drugs con- |

tinued to course through his body
his blinking*slowed. As his eyes
closed his breath heaved one last
time. we eT et he

Albanese was convicted “and

sentenced to death in 1982 for the
fatal arsenic poisonings of his fa-

ther, Michael J. Albanese, 69; his
mother-in-law, Marion Mueller,
69, and his wife’s grandmother,
Mary Lambert, 89. -— :

He lost a bid for clemency from
Gov. Edgar on Tuesday and the
U.S. Supreme Court rejected his

petition. for a stay of execution. .

Earlier in the day, he was turned

down by ‘the 7th U.S. Circuit.

EE BrethenenicianPmenenne <>

The ‘prison chaplain visited Al-
banese shortly before 8:30 p.m.
Albanese then took an oral seda-
tive. He refused a sedative earlier.

At .6:30 p.m., Albanese was
served a last meal of prime rib, a
baked potato, garlic bread, coffee,
Coca-Cola, and pistachio ice
cream..

Albanese was the fourth person
executed in Illinois this year, and
the sixth since the state resumed
capital punishment in 1977.

He was 43 when he began plot-
ting the murders of Lambert and
Mueller so he could tap into a
$72,000 inheritance.

Although he made $110,000 a

- year as president of a trophy- |
manufacturing business his family |

owned, Albanese was struggling to
keep up a lavish lifestyle.
Albanese persuaded Lambert to
change her will so her estate
would be left to her daughter,
Mueller. And Mueller’s will was
structured so that her estate

would go to her her daughter,

Virginia, who was Albanese’s wife.
In the summer of 1980, Alban-

Court of Appeals. Fs
In a statement released by his ~
lawyer, Albanese said: |

“Truth—justice and the judicial "|
system is an oxymorcn!. ' |
“... To those still on Death . |

Me Ee ne

|

Row who have been convicted be- ~

cause of the injustice of our justice
system, KEEP FIGHTING!!!”

In the state’s previous three ex-.

ecutions this year, relatives of vic-
tims watched on _ closed-circuit

Lambert—who had Alzheimer’s
disease—at their home at a retire-
ment complex in Fox Lake. To the
home-cooked meals he brought
with him he added enough arsenic
to slowly poison the women.

tigators didn’t suspect Albanese
until nine months later, when ar-
senic poisoning killed Albanese’s
father and almost_ killed Alban-
ese’s brother, Michael Jr.

.. Authorities said Albanese. poi-

Lambert died Aug., 6,. 1980; , soned;-his father and brother to

f

television inside a conference

room at State-
ville. But pris-
on. officials
said this week
that no rela-
tives asked to
watch Alban-
ese die.

Corrections
Department
spokesman

. Nic Howell
Mary ariel : said Albanese
was _ talkative during the day,
chatting’ with guards about next
week’s Bears-Rams game.

ae:

= pap

gain control of the family business,

i eee ae

Allied Die Casting of McHenry. He
had embezzled about $40,000 from
company accounts before his arrest
in November, 1981.

Like Mueller and Lambert, Al-

banese’s father and brother were
poisoned’ slowly enough to. avoid |

the suspicion of doctors and police.

Albanese’s father died May 16,

1981. When en autopsy showed
high amounts of arsenic in Michael
J. Albanese’s body, authorities de-
cided to extume the bodies of
Lambert and. Mueller. Again, they
found high levels of arsenic.

'Centribatings: Associated Press


V Chicago Tribune, Wednesday, February 22, 1995

eee
“an

Section 2 v4

Albanese sits on Death Row

U.S. Supreme Court again denies appeal -

By Charles Mount

TRIBUNE STAFF WRITER

The U.S. Supreme Court
on Tuesday denied an ap-
peal that would stop the ex-

ecution of Charles Albanese, .

who was convicted 12 years

ago in the poisoning death

of three relatives.

Albanese, 56, has been on
Death Row for 12 years and
has now unsuccessfully ap-
pealed twice to the nation’s
highest court, as well as
three times to the Illinois
Supreme Court. He has just
about exhausted his ap-
peals, unless new grounds
are found to overturn the
conviction.

Albanese, formerly of

Spring Grove, was convict-
ed for the arsenic poison-
ings in 1980 and 1981 of his
father, mother-in-law and
wife’s grandmother in a
scheme to take over the
family’s trophy-making
business in McHenry.

He was sentenced to death
by Judges Henry ‘Cowlin of

.McHenry County Circuit

Court and Lawrence Inglis
of Lake County Circuit

‘Court in separate trials.

Two trials were necessitated
because one victim died in
Lake County.

Albanese was $20,000 in
debt and had been demoted
by his relatives from the of-
fice of president of Allied
Die Casting Co. to treasurer

before the murders. He also
was convicted of stealing
$38,000 from the firm.

Albanese’s latest appeal
was on the grounds that a
now-defunct Illinois Depart-
ment of Public Health tox-
icology lab lacked internal
controls over tested materi-
als.
However, prosecutors ar-
gued that the lab’s problems
surfaced at least two years
after tests in the Albanese
case.

The Illinois Supreme
Court is now expected to set
an execution date for Al-
banese, who is near the top
of the list to be executed
when his appeals are ex-
hausted.


aes Lee ae

_Anary Final Statement

By ALEX RODRIGUEZ: *
_ STAFF WRITER

~ (Charles Albanese, the McHenry County

: 4 businessman - whose ceaseless hunger for
-<money:and power drove him to fatally poison

‘his father and two other people, was execut- <
sed early today.

The. 58-year-old killer was pronounced dead

“at 12:24 am.; said Odie Washington, director of ;

: the Illinois Department of Corrections.

Earlier, Albanese said in an angry written
‘statement: “By the time you have read this, :

you will have executed an innocent man.
Albanese was brought into the small exe-

Chics io

Turn to Page al

Us sf,

Sf (LOTS

Charles Albanese _ i
Convicted: of, 3. murders...

4 Co : ti. € ¢

STAFF WRITER >.) 202°

rae xy £4 ee Ae tl See be

eSuit Timeus gnofter Alex Rodrigue: wes
one of 12 media.witnesses. to: the: execution.”

By ALEX Ronnie gEZ..

Inside’ the ‘ote “quietude. oft -Ilinois”

-15-foot-square execution chamber, a “man
who had slowly, al

mé@st:| imperceptibly, poi-
soned to death* three: people - for money,
heaved one last. ‘breath.
Then Charles: Albane

dead.
5 19: Bia: a. m.,,

a

ay’: silent. “He was

Minutes before: ae dozen as |
media witnesses: “were Ted. into-an: area: where.
oe Set D ey ~<Purn: to” 0 Page: :

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- «e A
q a

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G66T -oz teq

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' TOT AT eT CIey er

(UeSTOM) III IT ‘setazeug

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EOS EE

became sick again, he said, he was recuperat-
ing from knee surgéry.

* However, the prosecution seriously dain: i

aged Albanese’s credibility when it entered
into evidence nine checks and business docu-
ments which the defendant had signed on the
days he claimed to have been away from
work.

Albanese insisted that he was not at work
on those days, that it was company policy to
keep signed checks so secretaries would be
equipped to handle some ‘financial transac-
tions and for some business orders to be back-
dated.

Then the prosecution presented evidence
indicating that the defendant inherited

' $67,229 following the deaths of Mrs. Lam-

bert and Mrs. Mueller and stood to gain con-
trol of the family business, if his father and
brother died.

Albanese claimed that his brother also
stood to gain by their father’s death if he—
Charles—died, too, and that he was con-
vinced ‘‘now, more than ever,’’ that his
brother and a business associate conspired to
frame him.

‘But did (the brother) profit from the mur-
der of Mrs. Lambert and Mrs. Mueller?’’
asked State’s Attorney Floro. «

‘*No,’’ Albanese answered.

‘*Who did?’’

‘I did,’’ Albanese answered and was ex-
cused from the witness stand.

In two hours of closing arguments on Mon-
day, May 17th, Prosecutor Floro said that
Charles Albanese killed three relatives be-
cause they ‘‘all stood in the way of his inheri-
tance.”’ -

Albanese, he went on, ‘‘had a great need
for money and he’d do anything to get it.’’ He

termed the defendant a liar who plotted four -.

slayings because ‘‘he didn’t want anything to
put a crimp in his style, like paying child
support.”’

Albanese, Floro continued, was ‘‘the only
common link’’ to the murders of Mrs. Lam-
bert and his father.

\ ‘**He simply could not pay his bills,’” Floro
said. ‘‘He was spending money extremely
fast, much faster than he was earning it.’’

Defense counsel countered by hammering
away at the prosecution’s circumstantial
case. Outside the courthouse he told reporters
that, ‘‘It boils down to the circumstantial
evidence versus my.client’s image on the
stand.”’

On Tuesday, May 18th, the seven- -man,
five-woman jury found Charles Albanese
guilty of two counts of murder, as well as the
attempted murder of his brother. Instructed to
return to court at 9 o’clock the next morning,
the jurors were stunned to learn that one final

task remained before them—to determine .

whether or not Charles Albanese should pay
for his crimes with his life.
‘‘T thought we were finished after we con-
victed him,’’ one jurist would tell newsmen.
‘I thought they were calling us back into
court to hear the judge make the sentence.’’
Instead, they heard Albanese’s enomey
plead for his client’s life. es

“There is a mitigating factor,’” he told °

e

52 : ees

* them, ‘‘that trandeende ‘our law—‘thou shalt
not kill.’ Ladies and gentlemen, I only’ ‘hope

“you do the right thing.” ‘bey
~ “You do hold the’ defendant’s-life in your

hands,”’ echoed State’s Attorney Floro, ‘‘just
as he held the lives of Mary Lambert and M.J.
Albanese. He slowlv.and painfully took those
lives. I ask you to.show him the same.
““'m here today to ask you to make one of
the most difficult decisions you will ever be

called upon to make. I’m here today to ask

“you to sentence the defendant to death.”’

‘ After two hours and 17 minutes of debate,
the ‘panelists did just that. McHenry County
Circuit Judge Henry L. Cowlin,-who, under

Illinois law, was required to follow the jury’s

recommendation, set formal sentencing for
later in the year. Charles Albanese still faces
trial in Lake County for the murder of his
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526 823- FEDERAL SUPPLEMENT

tated by precedent existing at time defen-
dant’s conviction became final.
See publication Words and Phrases
for other judicial constructions and def-
Initions.
48. Habeas Corpus <>498

District court could not .grant capital
murder defendant federal habeas relief,
based on state trial court’s alleged arbitrary
and capricious action in failing to retroactive-
ly apply state law rule regarding capital mur-
der defendant’s right.to instruction on alter-
native to death sentence, as court would have

to thereby announce new rule of constitution-
al law.

_ J. Steven-Beckett, Beckett; Crewell & Kel-
so, P.C., UrBana, IL;: for plaintiff.

Terence Madsen, Illinois Atty. General’s
Office, Chicago, IL, for defendants.

Bruce H. Bornstein, ‘Alan Michael Freed-
man, Freedman & Bornstein, Chicago, IL,
for Andrew: Kokoraleis, amicus.

- “MEMORANDUM OPINION

BRIAN BARNETT DUFF, District
Judge. ares?

Petitioner Charles Albanese was convicted
in separate trials of the murders of his fa-
ther, mother-in-law, grandmother-in-law, and
the attempted murder of his brother. He
was sentenced to death in both proceedings.
Albanese seeks habeas corpus relief pursuant
to 28 U.S.C. § 2254 (“§ 2254”) and asks this
court to review the constitutionality of his
convictions and sentences. For the reasons

stated below, the Petition for Writ of Habeas
Corpus is. denied.

PROCEDURAL HISTORY

In May 1982 Petitioner Albanese was con-
victed of the murders of Mary Lambert, his
wife’s grandmother, and M.J. Albanese, his

1. In addition, Albanese was convicted of two
counts of theft; he does not challenge those
convictions or sentences.

2. This trial will be referred to throughout as the
“McHenry trial.”

father, as well as the attempted murder of
his brother Michael Albanese, all by arsenic
poisoning.! At the request of Albanese, the
May 1982 trial was transferred from McHen-
ry County, where the indictment was out-
standing, to McLean County. The McLean
County jury sentenced Albanese to death.?
On direct appeal, the Illinois Supreme Court
affirmed the conviction and sentence, People
v. Albanese, 102 Ill.2d 54, 79 Ill.Dec. 608, 464
N.E.2d 206 (1984) (hereinafter “Albanese
I”). The United States Supreme Court de-
nied certiorari, Albanese v. Illinois, 469 U.S.
892, 105 S.Ct. 268, 83 L.Ed.2d 205 (1984).

In October 1982 Albanese was convicted in
Lake County of the murder of his mother-in-
law, Marion Mueller.’ Petitioner waived a
jury for sentencing, and the trial judge im-
posed the death sentence. The Illinois Su-
preme Court affirmed the conviction and sen-
tence on direct appeal, People v. Albanese,
104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d
1246 (1984) (hereinafter “Albanese II”), and
certiorari was. denied, Albanese v. Illinois,
471 U.S. 1044, 105 S.Ct. 2061, 85 L.Ed.2d 335
(1985).

Albanese filed separate post conviction pe-
titions attacking the constitutional validity of
his convictions and death sentences in
McHenry and Lake Counties. The McHenry
County petition was denied after a three-day
evidentiary hearing held in May 1986. The
Lake County petition was denied without a
hearing. Both denials were appealed direct-
ly to the Illinois Supreme Court, which af-
firmed the denial of post conviction relief
after consolidating the appeals due to the
similarity of issues presented. People v. Al-
banese, 125 Ill.2d 100, 125 Ill.Dec. 838, 531
N.E.2d 17 (1988) (hereinafter “Albanese
III”). Once again, certiorari was denied,
Albanese v. Illinois, 490 U.S. 1075, 109 S.Ct.
2088, 104 L.Ed.2d 652 (1989). Petitioner
now seeks federal habeas relief from the
McHenry and Lake County convictions and
sentences.? Respondents (hereinafter re-

3. In response to this court’s inquiry regarding
whether, under Rule 2(d) of the Rules Governing
Section 2254 Cases in the United States District
Courts, Petitioner could challenge the McHenry
and Lake County convictions and sentences by
way of a single petition for habeas corpus, both
parties agreed that a single petition was proper


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——_—_ > Charles ALBANESE, Petitioner,

Vv.

Kenneth McGINNIS, Director of the IIli-
nois Department of Corrections; and
James Greer, Warden, Menard Correc-
tional Center, Respondents.

No. 90 C 1556.

United States District Court,
N.D. Illinois,
E.D.

May 28, 1993.

Defendant was convicted of murder and

sentenced to death by the Circuit Court,

522 823 FEDERAL SUPPLEMENT

McLean County, Henry L. Cowlin, J., and he
appealed. The Supreme Court, 464 N.E.2d
206, affirmed. On petition for federal habeas
relief, the District Court, Brian Barnett Duff,
J., held that: (1) defendant was not denied
“effective assistance of counsel” by attorney’s
failure to consult at length with lawyer expe-
rienced in capital cases; (2) defendant’s con-
viction was sufficiently Supported by evi-
dence; and (3) Illinois death penalty statute
was not unconstitutional on its face.

Writ denied.

confidence in outcome of proceeding.
U.S.C.A. Const.Amend. 6.

See publication Words and Phrases
for other judicial constructions and def-
initions.

6. Criminal Law €=641.13(1)

Test for determining whether defendant
was prejudiced by counsel’s unprofessional
errors is not simply whether outcome of trial
would have been different but for errors, but
whether attorney’s performance was so inad-
equate as to prevent adversarial process
from operating. U.S.C.A. Const.Amend. 6.

Rad


ert Sanat nc sate Rcd

560 823 FEDERAL SUPPLEMENT

The State argues that this claim has been
procedurally defaulted because it was pre-
sented as a Fifth Amendment claim to the
Illinois Supreme Court but is presented here
under a heading claiming violation of Sixth
and Fourteenth Amendment rights. The
court rejects the rather flimsy argument of
the State. It is true that Albanese’s Petition
for Habeas Corpus is headed by a paragraph
asserting Sixth and Fourteenth Amendment
violations, but he has argued in terms of a
Fifth Amendment violation both to this court
and to the state court. (Petitioner’s Resp. to
Mot. to Deny Pet. at 30-32) (“[The prosecu-
tor’s] statement infers that at the sentencing
hearing, Albanese should give up his right to
remain silent and confess remorsefully to
avoid the death penalty.”). Albanese raised
the same issue, specifically citing the Fifth
Amendment, on direct appeal (Petitioner’s
Br. in McHenry Appeal at 129-30), preserv-
ing it for review by this court. The claim
fails on the merits.

[36] This court agrees with the conclu-
sion of the Illinois Supreme Court that the
prosecutor’s comment was not directed at
Albanese’s silence. Albanese I, 79 Ill.Dec.
608, 621, 464 N.E.2d 206, 219. Rather, the
comment concerned only his lack of remorse
for crimes of which he had already been
convicted; after the jury had found Albanese
guilty beyond a reasonable doubt, he was
obviously no longer entitled. to be presumed
innocent. Herrera v. Collins, —— U.S. at
—., 113 S.Ct. at 860. A defendant’s re-
morse is a proper subject for consideration

-during sentencing under both Illinois and

federal law. People v. Morgan, 59 Ill.2d 276,
319 N.E.2d 764 (1974); United States v.
Saunders, 973 F.2d 1354, 1862-63 (7th Cir.
1992) (rejecting argument that Sentencing
Guideline § 3E1.1 which permits reduction in
sentence for “acceptance of responsibility”
penalizes - defendants for exercising their
right to jury trial and their right against self

46. In claim 19, Albanese asserts that he “‘was
sentenced to death because he exercised his right
to trial by jury.” The State argues that the claim
was never presented to the state courts. Alba-
nese responds that the Illinois Supreme Court
considered the question in its analysis of the
prosecutor’s comment on his lack of remorse.
(Petitioner’s Resp. to Mot. to Deny Pet. at 35).
This court has already addressed that issue in

incrimination), cert. denied, —- U.S. ——,
113 S.Ct. 1026 (1993); see also United States
v. Tolson, 988 F.2d 1494 (7th Cir.1993);
United States v. Goines, 988 F.2d 750, 776
(7th Cir.1993) (noting trial court’s consider-
ation of defendant’s “utter lack of remorse”
in determining appropriate sentence). The
prosecutor’s reference to Albanese’s lack of
remorse was not improper.‘

[37,38] Albanese’s second objection to
the argument at sentencing relates to the
prosecutor’s comments on testimony regard-
ing the percentage of Americans supporting
the death penalty. Albanese urges that this
was unduly prejudicial, in that it distracted
the jury from consideration of Albanese’s
personal qualities. (Petitioner’s Resp. to
Mot. to Deny Pet. at 31-32; Petitioner’s Br.
in McHenry Appeal at 131). The court finds
that although the statements of the prosecu-
tor summarized below were improper, no
prejudice resulted from the remarks.

Mel Wallace, the Coordinator of Criminal
Justice at McHenry County College, was
called by the defense at the sentencing hear-
ing. Mr. Wallace testified that based on his
review of many studies concerning the death
penalty, statistical evidence that the death
penalty deters crime or murder was lacking.
(McHenry R. vol. XXXVI at 203-06). On
cross examination, and without objection, Mr.
Wallace volunteered the information that ac-
cording to a then-recent survey, sixty-two
percent, a “substantial majority,” of the
American public supported the death penal-
ty. (Id. at 211). In his argument to the
jury, the prosecutor referred to Wallace’s
testimony: “Mr. Wallace tells us that there
are studies opposing the death penalty....
He said not all of them are opposed to the
death penalty.... And about 62 percent of
the people in the United States today favor
the death penalty.” (/d. at 233).

claim 14. Albanese again argues that the jury
sentenced him to death due to references to his
lack of remorse and, indeed, refers the court to
his prior claim on this issue: “See argument
supra relevant to the Prosecution’s improper
comment on his right to remain silent.’ (/d. at
36). Because this claim duplicates claim 14, it
will not be addressed further.

mt

ALBANESE v. McGINNIS 561
Cite as 823 F.Supp. 521 (N.D.III. 1993)

Albanese’s attorney, Mr. Kelly, had an op-
portunity to respond. He argued to the jury
that the death penalty would not be appro-
priate. Imposing the death penalty, he said,
would not “do society any good..... It has
no deterrent effect.” (Jd. at 236). Kelly
emphasized his abhorrence of the death pen-
alty: “death by electrocution is not painless.
It isn’t swift.... it is something to.me that is
repugnant to a civilized society.” (Id. at
237). In rebuttal, the prosecutor referred to
the statistic provided by Mr. Wallace once
again. (Id. at 241).

[39] These sentencing arguments certain-
ly left something to be desired. Both the
prosecutor and Kelly made inappropriate re-
marks about the death penalty. The prose-
cutor’s comments on the percentage of
Americans favoring the death penalty, as
well as Kelly’s references to his personal
opinion about the “repugnance” of capital
punishment were improper. The statements,
however, in the context of the closing argu-
ments as a whole, were not so inflammatory
as to be prejudicial. Relief based on Claim
14 is denied.

III. Witherspoon. v. Illinois.

[40] In Claims 17, and 1847, Albanese
once again attacks the propriety of death
qualifying jurors under Witherspoon v. Illi-
nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968), but in a different context than his
earlier challenge considered in Claim 2.
Claim 2, it will be recalled, asserted that the
process of death qualification resulted in a
jury more likely to convict a defendant. Su-
pra at 48-50. The current claims present
the position that death qualification produces
a jury predisposed to impose the death pen-

47. Claim 17:
The trial court erred in not voir diring the jury
prior to the death penalty phase and discharg-
ing the jury to impanel a second jury because
of a predisposition to impose the death penal-
ty, under the provisions of the Death Penalty
Act.
Claim 18:

The trial court erred in death qualifying the
jury under principles of Witherspoon v. Illinots,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968).

48. Even if the court were to stretch Albanese’s
state court claims to cover the instant one, Alba-

alty. The State contends that these claims
of trial court error have been procedurally
defaulted; the court agrees as to Claim 17
and disagrees as to 18.

With regard to Claim 17, a little back-
ground is helpful. The Illinois death penalty

statute provides that the separate sentencing
hearing shall be held:

(1) before the jury that determined the
defendant’s guilt; or

(2) before a jury impanelled for the pur-
pose of the proceeding if ... (C.) the court
for good cause shown discharges the jury
that determined the defendant’s guilt; or

(3) before the court alone if the defendant
waives a jury for the separate proceeding.

Ill.Rev.Stat. ch. 38 19-1(d). So while Alba-
nese contends that it was error for the
McHenry trial judge not to impanel a second
jury; the statute makes clear that Albanese
was not entitled to a second jury unless he
made a showing of good cause. Albanese did
not attempt to make any such showing at the
trial level. More importantly, Albanese has
never argued to the state courts that the lack
of a new jury for sentencing violated his
constitutional rights; his arguments have
been focused on the effects of Witherspoon-
ing on the jury which was to determine guilt.
(Petitioner’s Br. in Lake Appeal at 77-81;
Petitioner’s Br. in McHenry Appeal at 106).
Because it was not fairly presented to the
state courts, relief based on Claim 17 is
denied.*

Contrary to the State’s assertion regarding
Claim 18, Albanese did urge upon the Illinois
Supreme Court that Witherspoon death qual-
ification produces a jury predisposed to im-

nese could not make out a constitutional viola-
tion. The right to jury for capital sentencing is
statutory, rather than constitutional. See People
v. Henderson, 142 Ill.2d 258, 333, 154 Ill.Dec.
785, 568 N.E.2d 1234, cert. denied, — U.S. j
112 S.Ct. 233, 116 L.Ed.2d 189 (1991); see also
People v. Devin, 93 Il.2d 326, 344, 67 Ill.Dec. 63,
444 N.E.2d 102 (1982) (the death penalty statute
“presumes that the sentencing hearing will be
conducted before the jury that determined guilt’’
unless good cause is shown for discharge).
Moreover, Albanese waived the issue by failing to
seek a new jury for sentencing.


562 823 FEDERAL SUPPLEMENT

pose the death penalty. “[MJere exposure to
the process of death qualification ... con-
vinces people that the law disapproves of
opposition to the death penalty and makes
the death penalty appear more appropriate
than imprisonment.”  (Petitioner’s Lake
brief at 81). Surviving the hurdle of proce-
dural default, however, avails Albanese little.
As noted supra at 48-49, the constitutionality
of conducting a Witherspoon inquiry has
been repeatedly upheld. Albanese has not
presented any persuasive authority to the
contrary,“? and Claim 18 is rejected as a
basis for relief. ©

IV. Jury Instructions.

Albanese challenges two aspects of the
jury instructions given at the sentencing
phase of the McHenry County trial. First,
he claims that the jury was wrongfully in-
structed on the unanimity needed to decline
the death penalty. Second, Albanese con-
tends that the jury should have been in-

structed that the only alternative to the

death sentence was life imprisonment with-
out parole.

A. Unanimity.

In Claim 15, Albanese asserts that “(t]he
jury of the death penalty phase was wrong-

fully instructed that they were required to ©

unanimously find a mitigating factor to pre-
clude imposition of the death penalty and
[sic] direct contradiction of the Illinois Death
Penalty Act.” The State counters that this
claim was never raised in the state courts
and has been procedurally defaulted. While
it is a very close question, the court deter-
mines that the claim has been preserved for
review.

On appeal from the McHenry trial, Alba-
nese contended that the jury “should have
been instructed that they need not find that a
mitigating factor existed beyond a reasonable
doubt in order to decide against the death
penalty.” (Petitioner’s Br. in McHenry Ap-
peal at 132). This argument focused on what
the jury should have been told about the
quantum of proof necessary for it to find a
mitigating factor making imposition of the

49. Albanese’s appellate brief in the Lake County
case cites only the overruled case of Grigsby v.
Mabry, 483 F.Supp. 1372 (E.D.Ark.1980), a Cali-

death penalty inappropriate. (/d. at 132-33).
The argument did not challenge the jury
instructions regarding unanimity. Nonethe-
less, both the McHenry claim and the cur-
rent one address instructions regarding the
jury’s evaluation of mitigating evidence. The
State is certainly correct in noting that a
general claim that the jury was wrongfully
instructed cannot preserve specific attacks,
but the claims under consideration here are
related, albeit tenuously. Proceeding to the
substance of Claim 15, the court finds that it
has none. .

[41] Contrary to Albanese’s assertion,
the jury was not instructed that unanimity
was required in order for it to decline to
impose the death penalty. The judge’s in-
structions included the following:

__ If after your deliberations, you are not
unanimous in concluding that there is no
mitigating factor or factors sufficient to
preclude the imposition of the death penal-
ty, sign the verdict form that says no
agreement on death penalty.

In this situation you will sign a verdict
form stating your finding of one statutory
aggravating factor and one verdict form
stating that you did not unanimously agree
on the absence of a mitigating factor or
factors sufficient to preclude the death
penalty.

If you sign these forms, the Court must
sentence the defendant to imprisonment.

(McHenry R. vol. XXXVI at 248). These
instructions correctly stated the law, when
combined with others requiring that the jury
be unanimous in its conclusion that no miti-
gating factors were present sufficient to pre-
clude the death penalty in order for the court
to sentence the defendant to death. Com-
pare Kubat v. Thieret, 867 F.2d 351, 369 (7th
Cir.) (death sentence vacated where jury was
incorrectly instructed “If ... you unani-
mously conclude that there is a sufficiently
mitigating factor or factors to preclude impo-
sition of the death sentence.... the Court
will sentence the defendant to imprison-
ment”), cert. denied sub nom. Kubat v.

fornia Supreme Court case, and several social
science studies from the early 1980's. (Petition-
er’s Br. in Lake Appeal at 77-81).

ii

ALBANESE v. McGINNIS 559
Cite as 823 F.Supp. 521 (N.D.III. 1993)

the statute itself which tells the jury, albeit
convolutedly, how to weigh the mitigating
factors it has found. The McHenry claim, in
contrast, attacks a specific instruction given
to the jury which purportedly limited the
jury’s consideration of mitigating factors in
the first place. The former argues that the
standard for jury consideration, the frame-
work of the statute, is vague; the latter
urges that the specifics under consideration
by the jury were too narrow.

Albanese himself makes the point. He
argues now that the statute is “vague, indefi-
nite, and uncertain.” In the McHenry ap-
peal, it was his position that “(t]he court’s
instructions directed the jury to consider
mitigating factors and then defined that term
in a manner so narrow and restrictive as to
violate [his] rights under the Eighth and
Fourteenth Amendments.” (Jd. at 119).
The argument that the instruction was re-
strictive and narrow cannot preserve an ar-
gument that the instruction is vague and
indefinite. Claim 13(d) has been procedural-
ly defaulted. Albanese has not offered any
basis for excusing the default by demonstrat-
ing cause and prejudice.

[34] Albanese’s final challenge to the va-
lidity of the Illinois death penalty statute is
somewhat odd. In Claim 13(f), Albanese
states

A majority of the Illinois Supreme Court

believed the Illinois Death Penalty Act to

be unconstitutional, but have set a judicial
doctrine of stare decisis above their consti-
tutional judgments.

This claim was not raised in either direct
appeal, nor in the post conviction proceeding.
Despite this waiver, Illinois Supreme Court
Justice Simon raised the issue in his dissent
to Albanese IJ, provoking responses from
Justice Clark and Chief Justice Ryan. Alba-
nese II, 85 Ill.Dec. at 458-65, 473 N.E.2d at
1263-70. Like Albanese, Justice Simon, an
opponent of the death penalty, claims that a
majority of the Illinois Supreme Court be-
lieves the Death Penalty Act to be unconsti-
tutional. Jd. 85 Ill.Dec. at 462, 473 N.E.2d

44. In any event, the court would have been com-
pelled to reject claim 13(d) on the merits in light
of Silagy v. Peters, 905 F.2d at 997-1001 and
Gacy v. Welborn, 994 F.2d 305 (7th Cir.1993).

at 1267. This claim is based on the dissent
of three members of that Court, Justices
Ryan and Clark and Chief Justice Golden-
hersch from the decision in People ex rel.
Carey v. Cousins, 77 Ill.2d 531, 34 Ill.Dec.
137, 397 N.E.2d 809 (1979), upholding the
constitutionality of the Illinois statute. Sub-
sequent to the Carey decision, Justice Simon
joined the court, replacing a member of the
majority. Therefore, the argument goes,
four of seven current justices oppose the
Illinois Death Penalty on constitutional
grounds. Having explained the background
to Claim 13(f), its lack of merit should be
clear. As the special concurrences of Chief
Justice Ryan and Justice Clark illustrate,
they have acquiesced to Carey and they ap-
plied the existing law to Albanese’s case.
Id., 85 Ill.Dec. at 458-61, 473 N.E.2d at
1263-66. The claim that these justices chose
to follow precedent articulates no violation of
Albanese’s constitutional rights.*

All of the remaining claims attack the sen-
tence imposed by the McHenry County jury.
Albanese does not argue that the Lake Coun-
ty judge who conducted the sentencing hear-
ing misapplied the law. All claims against it
having been overruled, the sentence of death
imposed in the Lake County trial and af-
firmed on appeal will not be disturbed by this
court.

II. Prosecutorial Misconduct.

{[35] In Claim 14, Albanese objects to two
portions of the prosecutor’s closing argument
to the jury during the sentencing phase of
the McHenry County trial. First, the prose-
cutor allegedly made an improper comment
on Albanese’s right to remain silent by stat-
ing:

He denies his guilt. You’ve seen no repen-

tance. I think that repentance is the first

step toward rehabilitation, an acknowledg-
ment of guilt. I’m sorry. He denies that.

Can that person be rehabilitated? I sub-

mit to you no.

(Petitioner’s Resp. to Mot. to Deny Pet. at
30-31; McHenry R. vol. XXXVI at 229).

45. Opinions do differ on this issue. See Marga-
ret S. Hewing, Note Stare Decisis and the Illinois
Death Penalty, U.Ill.L.Rev. 177 (1986).

Emma

made. On the floor I found a 14-inch
monkey wrench, blood-smeared and
sprinkled with gray hair. It presumably
was the weapon used to slug the old
man. I turned it over to Earl E. Rum-
baugh, fingerprint expert.

Outside the shack I found two distinct
sets of footprints. From the shape and
size I surmised they had been made by
two men having a great difference in size,
height and weight,

Rumbaugh came out.

“There’s not a good print in the entire
shack,” he said. “Whoever put Cozad
away was careful with his hands, all
right. There are several smudges on the
wrench but they’re too indistinct to be
of any use.”

I turned to the coroner.

“How long has he been dead? I asked.

“Possibly nine hours. That would
place the time of his death around 11
o'clock last night.”

I checked the dead man’s actions the
day previous by questioning the assem-
bled farm folk. Only the two men who
had found the body had seen Cozad the
day before. :

“We met him around 1 o’clock yester-
day afternoon at the river on Rankin’s
farm,” they said. “He was returning
home then.”

OZAD had not been seen alive later
that day. Nor had any strange or sus-
picious persons or cars been seen in the
vicinity that night. He might have been
killed by ghosts, for all the murderers

. were noticed.

Before I ordered the body removed. the
man’s’ clothing was searched. Except
for immaterial personal belongings the
only important articles we found were a
bank book and a newspaper clipping. The
clipping was the Times’ article dealing
with Cozad’s life and reputed hidden
wealth. The bank book revealed that
Cozad’s fortune was safely deposited in a
local institution. The cold-blooded killers
had obtained no more than a few dollars.

Saloons, brothels and gambling dives
were searched for suspects in the local
underworld and police informers pumped
day after day. But not a single trace of
the murderers was uncovered.

But even while we were completely
stalemated, two monsters in human form
passed before our very noses every day,

. sneering at the helplessness of the law to

trap them, their grisly deed suspected by
one person and known to another !

A few whispered words from either of
those persons would have avenged one
brutal murder and prevented even more
fiendish and inhuman.

Two men, were driving to Newton,
county seat of Jasper county on the
morning of August 29, 1933. Suddenly
the driver slapped on the brake, pointed
a shaking finger to a figure at the side of
the road.

“My God!
gasped.

Miss Schrader, -47, leaned limply
against a rural free delivery mail-box.
Her clothes were torn and blood-soaked,
her hands and legs bled from numerous

Tt’s Anna Schrader!” he

8

scratches. Her eyes, peering from a face
swollen and purpled with bruises, held a
mute appeal. As the men rushed to
grasp her crumpling form, she muttered
weakly :

“Mamma! Uncle Ben! Look out for
them, please.”

Anna Schrader lived in a ramshackle
house with her 82-year old mother, Mrs.
Mary Schrader, and her uncle, Bernard
Weldam, 87, The house, situated on a
knoll about 100 yards from the highway;
was reached by an almost hidden side-
road. Weldam was a reputed wealthy
man,

His house was filled with old-fashioned
furniture, and the occupants still favored
the forgotten mode of life of a bygone
era. Deeply religious, they lived very
frugally, and were known and respected
by the entire county.

The two men tenderly carried the now
unconscious woman toward the house,
fearfully wondering what fate had_be-
fallen Weldam and Mrs. Schrader. Half-
way up the knoll, one of them almost
swooned when a strong breeze blew Anna
Schrader’s torn waist apart, revealing a
bare breast.

“Lord!” he gasped. “What beast did
that ?”

The blood-covered breast was horribly
mangled and on the white flesh were
deeply imprinted purple welts. “Those
imprints could have been made only by
human teeth !

A hardened torture master of the In-
guisition would have shuddered at the
sight the two men beheld when, carrying
their pitiful burden, they entered that
house where horror had entered before
them.

Slumped insensible in a rocking chair
in the bedroom was the terribly beaten.
blood-covered body of Bernard Weldam.
Rope and wire that had been used to tie

him to the chair lay loose on the floor.
His feet were bare and the floor, strewn
with burned matches, bore mute testi-
mony to the torture the aged man had
endured.

Lying on the old-fashioned poster bed.
also unconscious, was Mrs. Schrader.
Her head and face were covered with
dried blood and horrible bruises, marks
of a brutal beating. T.oose wires, still
fastehed to the bed-posts, told that) the
aged woman had been spread-eagled on
the bed.

The four-room house was a_ bloody
shambles, but the two men did not tarry
to notice the disarray. Depositing their
burden on the bed, one of the men began
administering first aid while the other
hurried to a nearby schoolhouse and
phoned Charles Sowers, sheriff of Jasper
county. He arrived almost immediately.
accompanied by a deputy and Dr. J. W.
Hutton, coroner.

A superficial examination convinced
Dr. Hutton that the man and two women
were in a critical condition and he or-
dered them taken to a hospital. The
sheriff and his deputy remained to search
for clues. The house had been literally
torn apart. The floors were strewn with
contents of boxes, drawers and other con-
tainers; glass jars, canisters and tins had
been emptied on the floor. Furniture had
been shoved about and overturned. And

Tenaciously sticking to
the trail of the third
elusive member of the
torture mob, detec-
tives ran down and
trapped Earl Stark,
above, after his com-
panions had tried to
shield him. Left is John
Allen, through whom
police broke the case.

The clever
Lieut. Leo
helped senx
the’ chair

prison. L»:
hunt ext
Illinois, In:
souri bef
check the

n the floor.
oor, strewn
mute testi-
«| man had

poster bed,

Schrader.
vered with
tises, marks
wires, still
id that the
d-eagled on

isa bloody
lid not tarry
ositing their
e men began
le the other
olhouse and
rift of Jasper
immediately.

id Dr. J; W.

ny convinced
d two women
a and he or-
spital. The
ned to search
been literally
- strewn with
nd other con-
s and tins had
Surniture had
turned. And

ously sticking to
dl of the third
member of the

mob, detec-
ran down and
i} Earl Stark,
after his com-
s had tried to
iim. Left is John
through whom
broke the case.

TORTURE VICTIMS

Bernard Weldam, 87, and his
niece, Ann Schrader, 47, above,
both show the effect of their
torture at the hands of the
murder mob. Miss Schrader’s
mother, Mary, 82, died at the
hands of the gang, who en-
tered the cabin of the aged
man in search for hidden
money and forced him to
witness a horrible crime.

The clever work of Police
Lieut. Leo Bireline, right,
helped send two killers to
the’ chair and a third to
prison. Lieut. Bireline’s
hunt extended through
Illinois, Indiana and Mis-
souri before he could
check the case as closed.

everywhere was blood. Sheriff Sowers
shuddered as he looked at the stains on
the bedelothes where the two women had
been bound.

The house, barn and outhouses had
been thoroughly searched. Sheriff Sowers
surmised the marauders had spent at
least thrée hours, possibly longer, at the
Weldam place.

In the woodbox in the kitchen he found
a piece of firewood covered at one end
with blood. It was about two feet in
length and was covered with rough bark,
The bark was not broken as it would
have been if it had been used as a club
to strike the old man or women. Sowers
was at a loss to understand in what man-
ner the blood got on the club.

Also in the kitchen he found a short,
heavy iron bar, covered with dried blood
and wisps of gray hair. No doubt it was
the bludgeon used to batter the aged vic-
tims into insensibility. In the hard earth
beside the side road at the foot of the knoll
Sheriff Sowers found signs of a parked
car, though the tire treads were too in-
distinct to be of any use. Three clear
trails in the tall grass showed where
three persons had travelled from the car
to the “front” yard of Weldam’s house.

HERIFF SOWERS realized he had

a tough case on his hands, None of

the victims as yet was able to give him

a description or clue to the identity of

their assailants. Ple uncovered no valu-

able clue in the house. There could be

no fingerprints on the rough bark of the

club and the iron bar had been carefully
wiped before it was discarded.

Returning to his office he racked his
brain for a solution to the horrible enigma
that faced him, ‘Three men had driven
to Weldam’s home in a car; he knew that
much from the tire tracks and the trails
they made in the grass,

Finally he hit upon an.idea. ‘The car evi-
dently had been parked near Weldam’s
house for several hours. Perhaps some
residents of Jasper county had seen it
while passing on the main highway.

Too, Weldam’s house is out of sight
from the highway, the road leading to it
almost hidden by underbrush and weeds.
Only persons who knew Weldam—resi-
dents of the county—could have found
that house. And the sheriff was con-
vinced that the attack was the work of
outsiders, aliens to Jasper county. That
meant they could not find the house with-
out inquiring for directions.

Somewhere in Newton, or a 10 mile
radius of it, the three culprits had in-
quired for directions to the Weldam
home. And whoever they had asked
would be able to give a description of the
brutes and their car.

But a house-to-house canvass would
take days to complete. Sheriff Sower
shrewdly decided that, since the news of
the atrocity had quickly spread through-
out the county by a mouth-to-mouth
newscast, he might also ask his questions
through the same medium. So, while ex-
cited townspeople gathered about him at
the square in Newton, he told them the

[Continued on page 59]

9

the reward.
vied by news-
he garrulous
d-swept spot
iiles south of
hile the wind
salt spray on
red the muti-
priest,
ater that po-
verent expla-
aker, clapped
otlight on his
om they came
including an
ynamite caps
om which the
re missing, a
bloodstained
nife.
‘with a batch
htower, were

WER might
. the shocking
‘ich, using en-
oems and the
oth were writ-
i hand, As
igh, the crim-
e blade under
tiny shred of
e naked eye. It
ie number of
the cord which
death.
‘ound in
ose tiny
e of the same
d composition
unfortunate
cach, Because
ightower went

tery of hand-
has led him
is in his years
it field,
postal inspec-
hreatening the
ll, daughter of
e¢ note read in
Lou's life you
meter box, and
too.” oe?
ed?” Heinrich
tors said, “We
but we'll leave
we can locate
lwriting.”
he note, shook
written by a
ou know?”
inctly feminine.
is middle-aged,
is not too well
is familiar with
‘d by the refer-
would say she
ec in California
you find that
would-be kid-
Heinrich and
riminologist
that she does
vetween ‘to’ and

had passed, the
rrett, 48, a
yotained a

oe ellie

a

Trapping Illinois’ Torture Killers ae

facts and the opinions he had formed.
Then he added:

“Somewhere in the county three men—
strangers to these parts—asked for direc-
tions to Weldam’s house. I want anyone
who saw or talked to three strangers in
the past week to see me at once. They
might be able to help me catch the devils
who committed this foul attack.” .

The group scattered, relaying the latest
news and the sheriff's request to cager
listeners, who in turn told and re-told it.
In a few hours every resident of the coun-
ty knew he suspected three strangers, and
anyone who saw them would be certain
to rush to his office with the information
he so badly needed.

The sheriff's next step was to get the
report of Dr, Hutton. It was not en-
couraging. The victims were still uncon-
scious and unable to talk.

“Weldam has a_ fractured skull and
severe head and body bruises” the doctor
reported. “His feet are badly burned,
also. Mrs. Schrader is severely beaten
and suffering from shock. So is Anna
Schrader, but I believe she will pull
through in a few hours. I have little hope
for the other two. Their condition is ¢x-
tremely critical.

“Both women, despite their ages, were
viciously raped!

Nausea and revulsion swept over the
officer as he realized the full extent of the
horror experienced by the women. Anna
Schrader was not pretty, her mother was
bent and wrinkled with age. Grimly,
Sheriff Sowers realized the kind of in-
human monsters he would have to trap to
avenge the unspeakable outrage.

Grimly, too, the fight continued to save
the lives of the three victims, because
only through them did Sheriff Sowers be-
lieve he could bring their assailants to
justice.

Early Thursday morning, Mrs. Schra-
der’s ravaged body twitched and lay still.
Dr. Hutton reverently covered the bat-
tered, purpled face.

“You've got a murder on your hands
now, sheriff.”

“And I'm going to get the killers if it’s
the last thing I do!” the sheriff vowed.

Gy HE first favorable break came at
dawn that morning when Anna Schra-
der recovered consciousness, In a few
hours she had rallied sufficiently to be
questioned.

“Anna, you're going to get well soon,”
Sowers said, kindly. “But I must know
what happened at your home before I can
catch the ones who did this terrible thing
to you. Can you tell me what happened?”

“Yes,” she muttered weakly. "Mamma,
Unele Ben and I were in the front yard
‘Tuesday afternoon about 4 o’clock when
three men walked up. They asked us the
road to Missouri and when Uncle Ben
told them they pulled out guns and told
us to be quiet and go into the house.

“One of them was a big man with a
bald head, about 50 years old. The other
was about 30 years old and medium sized.
The last one was a young man with bushy
blond hair. I screamed and the young one
knocked me down with his fist. The other
one hit Mamma when she screamed, too.
Uncle Ben went to help Mamma and the

(Continued from page 9}

big man hit him on the head with his gun.

“They tore my dress and tied me and
Mamma with it and carried us into the
house. The big man dragged Uncle Ben
into the bedroom and tied him in the rock-
ing chair. Me and Mamma was tied to
the bed, stretched out.

“The big man said Uncle Ben had
$20,000 hid in the house and asked him
where it was. Uncle said he didn’t have
any money hid and the man hit him with
an iron bar. He hit him five or six times.

“Then they took Uncle Ben’s shoes off
and burned his feet with matches. After
a while he fainted and they asked me and
Mamma where the money was. We told
them Uncle Ben kept all his money in the
bank but they didn’t believe us. They
beat me and Mamma with the iron bar. I
kept praying and begging them not to
hurt Mamma but they twisted her hands
and choked her and hit her with their fists.

“After while they stopped torturing us
and searched the house and barn, I could
hear them breaking furniture and tearing
up the house. I could hear them looking
in the barn and sheds, too. Then they
came back in the house.

“The big man said:
make this old guy talk.’ They pulled
Uncle Ben close to the bed and made
him watch what they were going to do.
They tore the clothes off me and
Mamma.”

She shuddered at the recollection of

‘I know how to

i}

those horrible moments. Fear and terror
shone in her: purple-rimmed eyes.

“Then. 3

What happened then is too damnably
fiendish for words to describe: a dark
bedroom, lit only by the flickering light of
a kerosene lamp... two battered, terror-
stricken women bound spread-eagled on
the bed... an old man covered with his
own blood, begging vainly for mercy that
black hearts would not grant—forced to
witness the violation of the two persons
he loved most in this world.

Mary Schrader, 82 years old, criminally
attacked four times; Anna Schrader, three.
And following each assault Bernard
Weldam pleaded with his captors to let
the women alone and swore he had no
money in the house to give them. Any
man would have gladly bartered his soul
to stave off the torturing anguish Weldam
suffered; would have readily surrendered
his last cent to have prevented the un-
speakable assaults on the women he loved.

Still the fiends refused to believe him.
Then, they climaxed their macabre orgy
with an even more inconceivable act. The
big bald-headed man went into the
kitchen, returned with the wood club,
fondled the rough bark while his eyes lit
with an evil light.

Weldam surmised his purpose, fought
against his bonds and renewed his pro-
tests and pleas for mercy. The women
awaited in terror-filled silence, knowing

Assistant U. S. Attorney John J. Dowling points to the public parcel locker in a

BANK LOOT CACHE

Se

SPE

New York City subway station where $674,209 worth of treasury notes atolen

from a Wall Street bank in 1935 wer
source tippe

e recovered. A note from an undivulged
d off authorities.

59


they were to suffer a torture that can be
inflicted only upon a woman...

“IT revived about 7 o’clock the next
morning,” Anna Schrader continued.
“Mamma and Uncle Ben were still un-
conscious, I got loose and untied Mamma
and Uncle Ben. Then I crawled to the
highway to get help.”

The men were not masked, Anna said,
and had remained at the house about four
hours—plenty of time for her to notice
them carefully and give good descriptions
of them. But she helped more than that.
She remembered one detail that would
lessen the number of suspects and defi-
nitely brand one of them a cold-blooded
murderer.

“The big man had only four fingers on
a right hand. The right thumb was cut
oO ["*

HE man with the missing thumb!
That clue was destined to lead the
sheriff into two states and ultimately solve
the most infamous murder case in Illinois.
No sooner had the sheriff gained this
valuable clue than he returned to his
office to find an excited group of men. The
most important seemed to be Ed Schack-
mann and his two sons.

“You seem stirred up about something,
Ed,” the sheriff said. ‘What is it?”

“Well I heard you wanted information
about three strangers in this part of the
county lately” he replid. “I think me and
the boys have something to tell you.”

The sheriff was all cars. “Goon, What
do you know?” he prodded.

“Me and the boys were on the front
porch: at home last Monday evening”
Schackmann continued, “when a_ black
Ford coupe stopped at the gate. A young
fellow and a big fellow around 45 or 50
years old got out and came up on the
porch steps. The other men stayed in
the car and kept his cap pulled down
over his eyes. The big man was bald-
headed.

“He asked us several questions about
Ben Weldam and wanted to know where
he lived. I told him how to get there and
they drove away. The boys thought they
acted too suspicious to be up to any good
so while I was talking to them, one of the
boys—Clarence—walked down to the
gate and looked the car over. It had In-
diana license plates.”

Sowers was jubilant. The trio men-
tioned by Schackmann fitted the descrip-
tions given by Anna Schrader.

“Did you notice anything about the big
man—any important detail that will help
identify him?” he asked,

“Well, yes,” replied Schackmann, ‘He
leaned against the porch post with his
right hand. I noticed the thumb was cut
off close to the palm. He saw me look-
ing at it and jerked his hand down and
stuck it in his pocket.”

“You said Clarence looked at the license
plates on the car. Did he get a good look
at their numbers?”

“Yeah. He was real suspicious of ’em
all right. He not only looked at the li-
cense number—he wrote it down as soon
as they left!” Schackmann handed
Sowers a slip of paper.

The sheriff read it. “You deserve
medals for this! This little slip of paper
is going to sit a bunch of killers right in
the electric chair. Stick close to home, Ed,
I might need you before long.”

The sheriff was so excited over his un-
believable ‘luck he neglected to phone
Indianapolis and request police to check
the number and grab the car and its
owner, Instead he shoved his deputy into

60

his car, kicked the motor and raced to-
ward the Indiana capital.

At Indianapolis Sheriff Sowers
sketched his story to the chief of police
and was promptly assigned a squad car
and the best detectives in the city. State
auto records revealed the license number
had been issued to Harold Peck of Indian-
apolis. The squad car raced to the address
given by Peck on his license application.

There they questioned a woman living
at that address. She proved to be Peck’s
wife, whom he had married after divorce-
ing his first wife. Mrs. Peck had no idea
her husband was involved in any illegal
activities and readily gave the officers
valuable information.

“Harold and his first wife lived at Dan-
ville, Ill,” she said, “and most of his
friends live there. He spends a lot of his
time visiting them, often staying days ata
time in Danville. He went there several
days ago and hasn’t returned yet. You
can probably locate him at Danville.”

Within another few hours Sheriff
Sowers and his deputy were conferring
at Danville police headquarters with Chief
George E. Freeman.

“I’m out of my territory now, Chief
Freeman, and I need your help. No doubt
some of your men know Peck and the
men he associates with. I’m positive the
murderers of Mrs. Schrader are right
here in Danville and Peck holds the solu-
tion to the whole riddle. I want Peck bad,
Chief.”

“Sure, we know Peck and his crowd,”
Chief Freeman replied. “In fact, we've
had them under surveillance some time
as suspects in a bunch of local jobs.
They’re tough babies, all right. I'll check
our report on him.”

Freeman went to a file case and ex-
tracted a sheaf of typewritten papers.

“Peck has a wife in Indianapolis, but
he spends most of his time with a beauty
operator on one street and a second
woman on another street. He runs around
with. a tough bunch, but John -Allen,
Harry Shelby and Earl Stark are his close
associates. We've been trying to nail that

gang for a long time but couldn't get the
goods on them.

“Allen, Shelby and Stark have criminal
records and all three are ex-convicts.
Stark lives here and at Westville, six
miles north of Danville, and Allen and
Shelby live at Tilton, just outside the city
limits. Allen and Shelby could be two
of your suspects, according to Anna
Schrader’s descriptions, and either Peck
or Stark could be the third man.

“But if those fellows pulled that job
at Newton, we'd better grab them before
they get wise and blow town. Patrolman
Goldenstein is spotting them today, and
my men here will go with you to pick
them up. They hang around in Golden-
stein’s patrol district and he can tell you
where to find ’em.” Chief Freeman
then issued orders to Lieutenant Leo
Bireline and Detectives William Morris-
sey and W. C. Smith.

While Detective Smith checked Peck’s
women friends, the others sped to the
east end of the business district—Dan-
ville’s tough side—and picked up Patrol-
man Goldenstein.

“We're after Peck and his bad boys,
Henry,” Lieut. Bireline said. “Where do
we get “em?”

“T haven't seen Shelby or Stark all
morning,” Goldenstein replied, “but I
spotted Peck and Johnny Allen in a joint
on Jackson street a while ago.”

“Come on, sheriff, we're getting warm,”
Bireline said. Goldenstein accompanied
them to point out the joint. Morrissey
and Goldenstein covered the back door
while Bireline and Sheriff Sowers entered
the front.

Aside from several loafers the place
was empty. Morrissey cornered the bar-
tender.

“Harold Peck and Johnny Allen were
here a few minutes ago. Where did they

oP”

“I ain’t seen ’em for an hour. I don't
know where they went,” the barkeep an-
swered, but his face flushed and his words
lacked sincerity. Morrissey stepped in
closer and scowled.

4 vs, Bae
Ry 5%

pathy Nat

“Caught stealing again, eh, Butch?”

“Come on, nus
find out where t!
the joint over?

The bark:
tough Dan
that ran on

“Okay, you wi
were here drink
phone call. It
bothered. He ¢
it. They heade«
Peck's car.”

Morrissey ca>
Sheriff Sowers:

“Smith's talke
ready and they
picious. One «
and tipped Pec}
with Allen, Cc
knock ‘em off be

The police ci
blocks when |
rissey’s arm and
into a side stree'

“There they ¢
curb and I'll ke:

Peck and Alle
saw the police «
and force their
surrendered wh
upon them wit!
search revealed

,
.

“ HIE Boss v
Morrissey
“Sure, sure!
agreed Allen,
Questioned a
sisted they knev
case and swore
from Danville f
to explain what
ton, Peck beca:
answer. He lo
zied expression
merely shrugg¢
Chief Freem:
communicado, °
Morrissey:

and wat
to handic.
Discreet inqt
Shelby was at
neighbor. It
grab him in the
a lure to bring
store clerk to '
on the phone,
nailed him wh
He turned if te
when he saw
hand whip to |!
“Okay, I'll t
what do you \
been out of to
That was ex
he was picked
why they wer
then had they
they had not b
Shelby was '
and cursed wl
him. “IT ain't
don't know at
ton. Where :
Then Sherif
grilling.
“These me:
given me by
Schackmanns,
the one seen
Mrs. Schrade
“But there's
we haven't ch

MAT ALS NO ath. PP LM ANACEARE VER SAN AAL LENA WI AEA
a hervy iron coupling pin. He was
caken inside and laid on the floor and}
‘ne blood from his head wound made}
. pool on the floor. He was later}
giaced in a chair and tied with wire}
ahile his feet were burned and was
turned so that he could watch the
rs as they criminally attacked
sister and niece who had been
i4ien and tied to the beds. They
Je fal bound with fine ignition wire.
. The touys got $9.00 and an old

« for their night's work. Menke
i fear believed the men whom they
ispicioned were the same rob-
who had committed. this fiendish

rreme. ee .

I returned. to Newton and ‘phoned:
Indianapolis where the Ifcense: which
Menke had given was. found to have.
been issued to a Harold Peck of that
city. We believed that the car was
stolen or at least the license plates}:
because that is the usual manner with
criminals. So Deputy Watkins and I}
traced down the activities of these
suspects in the neighborhood, found
where they had been. geen and = by
whom and where they had spent the
night—-Monday uight. Their camp
however, disappointed us, in not yield-
ing any clews. We decided that I
should go to Indianapolis and. trace
down the license number and handle:
that end of it and leave the local clews
for. Watking to handle.on Thursday.
Needless to say, there. was no sleep
that night for the sheriff for we plan-
ued our. trip, for five. o'clock: the next
morning and the few hours I had to
ped were devoted to turning over the
vlews in my mind and planning, Hl

Hansel Brackett, city’ marshal: of!
Newton, George Fear,, Will, Menke and}
myself went to Indianapolis. at five.
o'clock, Thursday morning’ in Brack-
ett's car. When we arrived, in’ the
Indiana capital we went directly ‘te
the public headquarters and sought
to find: Peck's record). if. any. There.
was nothing on the. police recorda|
about him so the department loaned
us u plain clothes detective and’ we
went to a tairly comfortabic home
where we found his wife, This was
about ten o’cloek. A young, woman,
eck’s second wife, lived. there: with.
(wa small children of Peck’s by his
‘irst wife. The couple are believed
'o be separnted. She said that Peck
had gone out to hunt for work and
that he might possiblyhe: found: in
Danville, Illinois, at theshome of. his:
step-father, whose nume was, Ogleshy:

We veturned’ to headquarters and:
then sped to Danville, arriving: there
dbout one o'clock in the afterneon,|
We again went directly . to'; Head-
quarters and two. plain :clotités police}
were assigned, to assist us. We went
to Oglesby’s home and. failed ‘to. find}
Peck but we got a line on some: spesk- |
easies and gambling joints. at which}

aia Van Creal 2 MAE a a naa eK ET

he might be found... We: left Menke!

and Fear at headquarters as we’ had

dong at Indianapolis: because, I. feared
(Continued on. Last Page): ©.

a Eee

. night, began, me”

Homer Kasserman,.state’s, attorn
took the’ lead. in: the: grilling ‘of
"young parol

all week. and. sho

occupied by Shelby’s: girl” (Shelby -js.

married but is separated from. his
wite) after they had found that Be
wag not at the home of his mother
in Tilton. They got the storekeeper

vhe knew Shelby to go to the house:

and ask the sweetheart who © said
Shelby was in bed, to tell Shelby” to

come to the stoce on.some fictitious:

business. When he did, the: “cops
aabbed him and brought him. to. Dan-
ville. where Fear immediately identi-
fied Shelby as the man. Bet ee

I had phoned Deputy George, Wat-('be

kins al Newton to bring warrants-and
bandcuffs as soon as I knew ‘the
names of the parties and he arrived
about the time State's Attorney Kas:

serman phoned me not to bring the:

wen to Newton for tear of mob action.
¥ had decided and. this confirmed my

decision to leave the men in. the strong”

<'rawford county jail. I-requested a
state highway police escort to meet
me at Marshall and Kasserman.. was

with them when they arrived.” Alien‘!
and Shelby rode with me in Joe Dorn’s]
ear (he had brought George Watkias|
to Danville) and Fear accompanied |

us and Peck rode with Braciett and
‘Vatkins while Menke drove the Peek
ear. After about thirty minutesour
escort of, about a. dozen highway
nolice had formed and we set out:ftom
Marshall to Robinson. — ‘

A large crowd. surrounded. the jail
and pressed forward to. view the ‘sus-

pects. and, newspapermen trom “Robin-

son and Newton were. waiting: for the:
story.’ I. granted their request. that.
photos be taken of the men‘ and after

this the quizzing’ which lasted.

<a e [4

ORV
he’ had been ]

:.24. Oblong where
ote othe -ertmess &
daradbury, Crawford

weyer

tO ae pane

help. and .verye, nd)

“Of his-car, “that
Indianapolis and Danville p
the Vermilion county sheriff: have)
cooperated (perfectly: in “solying, ;
‘heinous: orimesands EP. wart

chow
al} of. them-and “Sergea
the atate highway
who. escorted’ us
of Crawford county :f “kh
jin giving is the: use. of his." ji

{
oH
fi

|

f


go te loa

3 terre
Me

TAURENCE E. SHU

(> PUBLISHED EVERY 7

P, EDITOR AND PUBLISHER NEWTON, ELLINOIS, TUESDAY; SEP’

sheriff Sowers’ Own Story of How
Allen and Shelby Were Caught

Ry John 8S. Wright

some al the jail when Will Menke and

-s, Peter ueighborhood, came to me

HB oastencd to tbe Schrader home,

EF voods fram the hard road, two miles
‘ast of Newton near the St. Peter
FE school.

L What i found in the old, old home
€ as cnough to make anyone's heart
yank, T found Mrs. Mary Schrader

snc
dna

E rell us anything.

yf the events of the night.

' She told me that they had been on

f tne outside of the house finishing the
> vhores When two men approached and

CAPYTCOLE OF TORTURE THU GS CAPTURE OF TORTURE THUGS,

@ twas busy at the routine duties of!
Bev officer, Wednesday morning, and
qos preparing to eat dinner at my)

F corge Fear, two young men from the

@ ond relited a sketchy story of the}
@ ack upon the Schradéers. and. Mr.|
S <cidam. They were visibly excited}
Fy the brutality of the crime and we}

yerched On a. hill, and sereened in by |.

Sadly beaten and with a terrible gash |!
Foon ber head, old, bent Mr. Weldam |)
E opariy unconscious or at least badly

aud severely bruised and beaten
| Miss Anna Schrader punished and)
ised by the thugs. Mrs. Schrader |’
: her daughter, at that timre, were |.
F able to give me fair descriptions of];
S tne culprits but the shock of the}!
* aiendish attack naturally made theit|’
* stories rather hazy and difficult to

‘igiiow. Weldam was scarcely able to

' The pouse with its rough, home-
Po ade and ancient furnishings was
F coned Lopsy-turvy. Nothing was in
-splace. It had heen completely ran-|)
gacked. The religious pictures which
_ vere the only decorations on the un-
jastered walls had been ruthlessly }
wi to the floor with complete dis-
rd of the sacredness of their sub-
wes, Jesus and the Virgin Mary. The
‘sreexed interior of the house with}
ne pool of blood on the rloor was}
confirmation of Anna's startling story}

asked 2hout camping at the St. Peter
schoolyard. Then they drew guns and
. third man joined them. They de-
manded twenty thousand dollars,
claiming that they had that amount)
hid on the place. One of the men)
cashed Mr. Weldam on the head with
: hervy iron coupling pin. He wus

Sheriff Sowers’ Own Story of How
Allen and Shelby Were Caught.

ane

b (rom. Ire a
tbat if any of the robbers, who by
the way, we knew-to be murderers
for we had learned of the sadi death
of Mrs, Schrader before we left New:
ton, if any ef the robbers should see
Fear or Menke,-he would know that
we were on the right trail and: skip.
Brackett stayed: with the boys: and
‘ooked. up their. records. for trace, of
Peck and for. possible clues)\to.-the
identity of the other two. : © boa

We had made three or. four .of
these joints and found that be had:
peep in one cf them that morning.
He was known to the detectives..4s
1 loufer about these paces and. by: the
came af “Spike.” We. were at. a.stop
sign about to enter the square. at: Dan-
wile when Peck, and Allen. shat out.
in front, of ug itt the car which-had
been used in thevcrime. The. car. had
been discussed so often that, it was:
recognized instaztly, We sped around
them and forced them. to the curb and:

a

Cypti

arrested them for..speeding within: a
plock of the square, right in the heart:

of Danville.» Alen particularly, seem=
ed shaky when -arrested:~ Phe

They were locked. up and “we: cagus

ally inquired if either of them. knew.

=» man of, middle. age who had: no
thumb on hig left hand, Allen’ readily:
directed us’ to: Shelby in Tilton,-a.
suburb of Danville, not knowingy of:
course that he was-under suspicion of:

aurder.

I quizzed Alten ‘and’ Peck{ : after |
informing them of the charges against |
them, while the Danville police: went

after Shelby. . Fear identified. Allen
and Peck and J sought: to fine
from them. who had aided: the

vinced us, together with the identifi
cation by Fear, that we had th
parties. adhe oe

The two plain clothes: detectives}
\vent to the store adjoining the home}'
occupied by Shelby's girl (Shelby 3s) that

‘to whom. he ha
‘that “Allen ha

i.
1
:
4

out:
but
at that time they would admit- noth=
ing. We brought in some. women of
streets with whom the three had been:
associated and tried, to, get information.
out of them. as. to. where Allen and!
Peck had.-beenthat week, and gets.
line on them. Their’ testimony, cone

Feonfession -

rE started

married but is separated from: -his/

7 ee

"Says That He Was. ‘ifistaton ae

. Neison- Bogard :of “the Bend. whe
spien fo - Danville, Frida: ices pak
lee ry. Shelby” of -Tiltcen, confessed
der of the torture siayers-of° Mra.
Mary Schrader of St. Peter vicinity
immediately recognized: him as the
leader of the three bandits who robbed
him and Mrs.: Bogard’a year ago. As
stated in’ Friday’s. Press, .Sheiby had
Previously confessed to the.crime and.
‘said’ that Charles Watts of'- Mason,
who was convicted and sentenced to
the penitentiary at the April term of*
cis wut .ccurt, was not guilty.
. iS. Bogard has signed a statement
that he. was mistaken in his identi-
fication of Watts, made at the time
hes the trial, and now: does net believe
dim guilty... Watts ana Shelby bear
if paper J pea es grrie to each sther,
aid, ma i i
yone for the a sf easy to mistake
Mr. Begard was taken to Danville
by Sheriff C. M. Sowers at the request
of State’s Attorney Homer Kasser-
man whe was seeking information
) about the mutter to pase future ac-
j tion on. Steps will no doubt be taken
j now to secure a pardon for Waits.
| Evidence at the trial was lacking ex-
,cept tor the positive identification bv
iMr. Bogard, who pointed nim out as
| one of the three men who bound nim
;and Mrs. Bogard with shoestrings.ankd
rtaped their mouths with adhesive
[tape, after holding them up and.escap-
jing with $560 in cask and- Liberty
j bonds. . :

P


85,

OCTOBER 10, 1

933

PND YEAR, § NO. 51

BXintered Pleas of Not Guilty to the} Drange ‘and Blue Heit Scaveléen. ‘Ale Hust

Charge of Murder, Monday |. though They Onépinyes Tepes

Phe Newton. ‘Hustles
‘baseball seagow: Sunday, wee
Wentyeseeond sc

@ The October term of circuit court if
a convened, Monday, with Judge Thomas]!
@. M. Jett of Hillsboro presiding.

The: ‘Albion

attled a favorodiaig a a ripetes New-
ie: ‘on..the local,

Alter pn “team to a 0 tot
ridiron; Saturday:
fon. consistently ou ‘
fents but-displayed an:

red: Then: oppon- Wi
ie pHecable neue ek, ple

ge journment will probably be taken to-{f
day to. oo Monday when the Schra-

y {rial wik get under way. geet lack, of .
Bo, Shelby of Tilton, John, Allen! R
4 of Dany ille, and Earl | Stark of: West- i

by the anne jury before it, waoGenel E
about a 30 o’clock, Monday afternoon.
; They were charged with murder, with
rape in two bills, and with..burglary. |
Harold Peck, arrested with them, was
Slate’s Attorney: Homer
; Kasserman being unable to find any |
oeharge against him in Jasper county. | ay
He will be turned over to, Vermilion (4

3 authorities

 purglary at Danville,
~fense he committed in connection with}!
vthe murder of Mrs. Mary: Schrader
»was the withholding of information, /At
an offense committed
nly. Me here he wag in jail, and at
where he was. arrested.
? Since Baie brought to Newton hells
jp has never withheld any information jim
of value, and under the law it.is neees- fd
We sary for a felony trial to be held in }/#0 -
ga the county where the crime took/Bu
= Happily, the penalty for burg- |
ie. lary and larceny is as great as: that
‘for accessory after the fact.
i Following their indictment, Shelby:
“and Allen were brought into.
handcuffed to each other by. Sheriff
-C. M. Sowers, under guard of seven iT

ia by a few ‘yards’ ‘to br
scoring columns, ie
7 Newton made. ‘nine’ Baty
shree via. air, while Albion.
‘ in passes: and failed: to: ing. ke
son on. fhe grouneh

3° not indicted,

The ‘only ot-| halt:

ance...
dnd. Totes Ieicked. a nice. oll pn
which: Bunting, quarterback for
pion, seemed to touch: before:
men landed on the ball: bs
led” ‘it. was Ablan's.,

in. ‘Crawford

as irty yard: an eaves
throug:

sr ap a ote MRE Dy:
@: ave Newton:.the’ ball. on : ip
Jwenty-six yard line.’ a:
4. After. Jones: had: sms,

all heavily ‘armed:

After asking |
them if they had attorneys and re~{

@-dictment for murder.

for @ yard, Tomnty’ Marshall “ram b
y ceiving their re eply that they had. not H i
e and had no money to employ lawyers,
@. judge Jett named Milo D. Yelvington!

ard: stripe, giving: Newton: four tries man. 1

‘O compiete the: nine yardst but. three} out toh
tempts brought no. gain at. all apd: a/Timk
which McClane threw # few|n
inches. out of the Peach of. Mpfaball 0
aye the bali to Alb ass RY 8
Another punt, this: ene go

unds: after inaking: only...
long “the field, although
tpward the. stratosphere,
we Newton's second |

and George W,
Reto defend them.
Judge Jett set their trial for next!

McColley. of this: city}

| Monday morning at 10 o'clock, Athi
‘this time they will be formally ar
 raigned for murder
emi pet under way.
E Basser tran plans to ask. for. the
What line of defense | ge
> Shel by amd Aten will employ is un-/'t
Wteu first arrested, Shelby
aia | he would piead suiltv and wanted

State’s Attorney 3 E

aways witseteie, ages. 65 and
patted. ‘font Mr sand- Mrs: C-
Ort: te: deep daughters Betty
rbicls, Hansenstook eare of in rdanet, and Mr.

eR naar eeet Tah ee cies

q ‘death penalty.

yard line and a, first da mn. wit

‘> ge seamed imminans mit: eee a A

%

a igitee Ruth a
Dene Rose Kinzer

‘ Mrs. Victo
paler rie a) ter oe and WV

Pete ied eds a PL Sl

os bry

ee

~ -_ * lax
2/2) (The Aewan Press, Ila
Lwf oe Veale NVEIN GN FYEse, FF Fe

Emiddle column |

took the lead in the griiting” of He]

_ loaned’ the car. “He wassvery: slow |

and’ G. aoe go. that: the:

three men, beginning with ‘Allen, The}
young paroled convict maintained: that
he had been in Danville and: “Tilton,
all week and showed little signa.of:
weakness. Peck was next and. he
claimed that he had, loaned his cat’
to a man. he did-not “know, by’ name.
Finally he gave the nanié of. Jack
Lowry as the person to whonr he. hadi

Sion |

in answering questions, failed, to. re-~
‘suember exact days or exact happen-

“oyags and in general, gave the appear-

. nce of being a poor liar. Shelby, on

“re other hand, was very calm and

~ gag sure of his ‘story in, spite ‘of posi-
ve identificatiqn by Hear and. by 4

ling station man between: Robinson
ena Oblong where they -uad. stopped
* ‘too the erime.:, State, police, Stanley
IY radbury, ? Crawford QU ty -gtate’s

_ ctorney, Sheriff, Haley  Grawtord
. ounty and. Wat and: inyself. join-
+ din the questigning® -o.. some. extent,
The men were given ne ‘sleep. but
‘vere constantly grilled by the police,
rawtord: Officials, Kasserman, Wat-
ins and myself: ‘and state officials
-. the highway police... department;
‘hursday. night and Friday. :
I attended the last 'tites- fOr Mrs.

Schradex. at. St. Thomas’. Gatholic.
churvh,. er-the services,1. ‘gat Mrs:
hMir.. Weldam. ready to-go:
a identity, ‘the, criminals:

cheat thera pe es Hinaeer a:
it arranged that they should.speak:
in German; with Fother Rg ae

could: a '
they realty’ identified. them.
ed that fromm “fear: or LS
shock, - they night bes,


ALBANESE, Charles, white, LI ILSP (McHenry) September 20, 1995

Man Executed For Killing Kin
AP 20 Sep 95 2:08 EDT V0092
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Man Executed For Killing Kin

CREST HILL, Ill. (AP) -- A man was executed by injection early
Wednesday for murdering his father and two other relatives by lacing
their food with arsenic so he could take over the family business.

Charles Albanese, 58, was convicted of murder in 1982 in the deaths
of Michael Albanese, his mother-in-law, Marion Mueller, and his wife’s
grandmother, Mary Lambert. He also was convicted of attempted murder in

the arsenic poisoning of his brother Michael.

Lambert and Mueller died in August 1980 within days of having dinner
with Albanese. Authorities attributed the deaths to natural causes
until Michael Albanese’s death from acute arsenic poisoning nine months
later.

Albanese was caught after investigators discovered he had bought 2
pounds of arsenic.

Prosecutors say Albanese was after $72,000 in inheritances and
control of the family’s lucrative trophy-manufacturing business, Allied
Die Casting Corp. of McHenry.

Albanese issued a statement late Tuesday maintaining his innocence.
The justice system "covered up the facts of who really killed the
people I loved and who really gained from their deaths and my
conviction," he said,

He lost any hope when the U.S. Supreme Court on Tuesday night
rejected his petition for a stay of execution. Earlier in the day, he
was turned down by the 7th U.S. Circuit Court of Appeals and Gov. Jim
Edgar rejected his petition for clemency.

Albanese was the’ fourth Illinois convict put to death this year and
the 41st nationally, extending a record for the most executions in a
year. The previous record was 38 in 1993. There have been 298
executions in the United States since the U.S. Supreme Court reinstated
the death penalty in 1976.

Man Executed For Killing Kin
AP 20 Sep 95 5:02 EDT V0153
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,

broadcast or otherwise distributed without the prior written authority
of the Associated Press. : :

Man Executed For Killing Kin

CREST HILL, Ill. (AP) ~- A man was executed by injection early
Wednesday for murdering his father and two other relatives with
arsenic-laced food to get inheritances and take over the family
business. | : !

Charles Albanese, 58, had no final words other than a “thank you" to
the prison warden moments before being put to death.

Albanese issued a statement late Tuesday maintaining his innocence.
The justice system "covered up the facts of who really killed the
people I loved and who really gained from their deaths and my
conviction," he said. :

Albanese was convicted in 1982 of murdering his father, Michael, his
mother-in-law, Marion Mueller, and his wife’s grandmother, Mary
Lambert. He also was convicted of attempted murder in the arsenic
poisoning of his brother. | |

Lambert and Mueller died in August 1980 within days of having dinner
with Albanese. Authorities attributed the deaths to natural causes
until Michael Albanese’s death from acute arsenic poisoning nine months
later. : ;

Albanese was caught after investigators discovered he had bought 2
pounds of arsenic. «= 8

Prosecutors say Albanese was after $72,000 in inheritances and
control of the family’s lucrative trophy business, Allied Die Casting
Corp. of Mchenry. SS

Albanese lost any hope when the U.S. Supreme Court on Tuesday night
rejected his petition for a stay of execution. Earlier in the day, the
7th U.S. Circuit Court of Appeals turned him down and Gov. Jim Edgar
rejected his petition for clemency. : ens :

Albanese was the fourth Illinois convict put to death this year and
the 41st nationally, extending a record for the most executions in a
year. The previous record was 38 in 1993, There have been 298
executions in the United States since the U.S. Supreme Court reinstated
the death penalty ‘1n-1976. aie ae

the words and then use the circled letters
(not necessarily in the order in which they appear) as
_ your clues to find the answer and crack the case.

GRENTGAS

Here’s some physical evidence:

By violating prohibition laws, this mobster’.
acquired $50 million,amansionandalovely _
wife, but the one thing he craved— _—
respectability—always eluded him. . ee

aa : 6

vi

’

ti AR ie ek eT RRS Hh

(The solution to the sc

eps, Ne area AB wath Se

room at Allied Die Casting he had become
violently ill. On all three occasions, he had
brought his lunch from home, but had left it in
his office where his brother had access to it.
The only time he ever became sick, he pointed
out, was after eating lunch at work:

The first attack had come on September 8,
1980, just four days after a heated family
dispute in which his father had threatened to
fire his brother. He became sick again in Janu-
ary,and February, 1981, and was hospitalized
in late February and early March.

On Tuesday, a toxicologist testified that

- tests on the bodies of all three alleged murder

victims showed lethal amounts of arsenic, up
to as much as 80 times-the natural amount.

Wednesday, two other chemical experts
said they found up to 370 times the normal
amount of arsenic in the body of, Marion K.
Mueller. :

The assistant chief toxicologist of the IIli-
nois Department of Public Health testified
that tests indicated that Mary Lambert had
died of a massive dose of poison while M.J.

‘Albanese received numerous small doses be-

fore he was given a massive, fatal amount in
May, 1981.

Taking the stand in his own defense on
Friday, May 14th, Charles Albanese, a dark-
haired, heavyset man, said that while he was
ifi jail awaiting trial it occurred to him that the
poisonings must have been committed by his
brother, who was trying to frame him so that
he could take over the family business.
Albanese ‘claimed his brother had crippled
himself in a botched attempt at making him-
self sick in order to shift the blame away from
him in the killings.

‘‘] didn’t poison anyone,’’ the defendant
‘said. ‘‘It seemed obvious to me | was being set
up.”’ ) " / )

On 14 separate occasions during his two
hours and 51 minutes.on the stand, Albanese
denied poisoning anyone. Admitting that he

- had been given arsenic twice in plastic con-

tainers, he insisted that he used the poison
once, months before the first of the deaths, to
kill the rodents that were feeding on his. gar-

~ bage. Under cross-examination, however, he __
conceded that he never told his wife about the wt

poison and that he put it in open garbage cans
where it could have endangered neighborhood
children.

Charles Albanese maintained that he was
néver alone with his father at the hospital and
that his mother was constantly at her hus-
band’s bedside. Mrs. Albanese, it was noted,
had been subpoenaed by the defense but failed
to appear at the proceedings.

‘‘On a father-son relationship,’ Albanese
claimed, ‘twe were probably as close as two
people possibly could be.”’ pat

Albanese told the jury that he had no oppor-
tunity to: poison the food of his brother,
mother-in-law or his wife’s grandmother. He
said that he had not prepared food or fixed

drinks for Mrs. Mueller or Mrs. Lambert ona. ”

Sunday in August, 1980, when the two
women came to his house. And, he said, he
was away from work on the September, 1980

* day his. brother became violently ill for the

firsttime.In January, 1981, when his brother

ree ev te

seri A

(se

v

7 Ste
will hs

even
Its
Psyc!
trol g
ple p
man ¢
ONE |
can p
Conti
you
Thes
guid
step
yours
you «
they
you \

it

Kn
beau
Real!
you \
does
steps
drea
5 mi

So
tim«

Rat.


——

Sa

‘*They don’t like me, maybe,’’ Miller re-
plied. ‘‘Back home we have fights and
things. A lot of people don’t like me.’’

The assistant district attorney changed his
tactics. ‘‘What about Wednesday night (the
night before the murder)?’’ Garson asked.
*“‘Did Claudette throw you a party?’’

‘‘No, I was at my sister’s house.’’

The assistant district attorney looked at
Detective Sorrentino. *‘Did she make din-
ner?’’ Garson asked quietly.

Miller fidgeted. ‘*I mean, I was at Linda’s
house, Wednesday night.’’

**Do you know why Claudette would say
you spent that night with her?”

‘‘Why she would say I spent my birthday
night with her?’’ Miller repeated, stalling for
time.

*‘Wednesday night, the night before—’’

*‘Don’t know,’’ Miller shot back. He
knew he was in trouble now. His alibi was
beginning to show its holes.

ADA Garson changed in mid-stream
again. ‘‘On the 24th, did anybody say any-
thing to you about a Jewish man carrying
bags of money?’’

“It was before that,’’ Miller burst out.

‘*Ka-Beem and somebody else was. talking

about that.”’
‘*When was that?’’ Garson pressed on.

“I'd say the 20th or 21st. I know it wasa ©

Tuesday,’’ Miller said. He told them about
the conversation he and his friends had had.
Supposedly,; there. was an old Jewish man
walking around with a wad of big bills. ‘The
way he was Saying, the man had $10,000.”’
Miller said.it was true they talked aboutit, but
no one had mentioned robbing the man, let
alone killing him. Miller‘looked at the law
enforcement people. He could see they didn’t
believe his story. ‘‘I’ll take a lie detector
test,’” he said.

Detective Sorrentino felt good at the end of
the interrogation. Miller’s alibi woudn’t be

_ able to stand up in court. Now, all that had to ~

be done was the line-up. Once the witnesses
identified Miller as the suspect, they had him
cold.

Unfortunately, Lorraine Matthews and the
male Hispanic were unable to pick Miller out
of the line-up. Miller, however, didn’t know
that, so he kept asking the detectives if they
could do the line-up over, with his standing in
a different position. They gladly agreed, but
again the witnesses were unable to pick him

out. Sorrentino had no cheice but to let Miller

go.

The police were back at square one, now
worse because Miller knew he was being
watched. If he hadn’t gotten rid of the gun
before, he would definitely do so now. The
detectives went back out on the street, trying
to.find some other witness who had seen the
murder.

Meanwhile, the tension in Crown Heights
was growing. The Hasidics were accusing the
city of doing nothing; people were say-
ing the rabbi’s death was racial. It was the
only reason they could come up with since the

items in the briefcase couldn’t have been

worth more than ‘‘$5 to $10 at the mest.’
Detective Sorrentino decided that their best

48 ! ~

Fg BN

chance was in trying to get Ka-Beem or one of
Miller’s other friends to'tell them what they
knew. So, they reinterviewed Ka-Beem, and
this time, his answers revealed a lot more. .

‘It turned out that Ka-Beem had actually
seen Miller accost and shoot the rabbi.
Although his description of the clothes Miller
wore was different from that of other. witnes-
ses, he had no trouble identifying Miller as the
perpetrator because he knew him for years.
The detectives asked him if he knew where the
murder weapon was or what Miller had done
with the stolen items. Ka-Beem told them that
Miller had thrown them away—where, he
didn’t know.

On November 30, 1979, Detectives Sor-:
rentino and Rossi picked Carl Miller up at his
apartment. Although the District Attorney’s
Office claimed that they had not brought any
charges against Miller, Lieutenant Ralph
Feminella said, ‘‘As far as I’m concerned,
he’s arrested.’’ He added that the arrest came
after, an ‘intensive investigation, including
interviewing hundreds of people,

‘*This was an absolute robbery, a crime of
opportunity,’’ he said. Miller had simply
thought there was a large sum of money in the

briefcase. When ‘asked whether: the stolen:

items had been recovered, the lieutenant said,
‘I’m not free to give that out.”” He credited
Sergeant Carroll, Detective Sorrentino and
Detective Rossi with the arrest.

Miller was indicted ‘a few weeks later. He

took the lie detector test he had asked for, and
failed. On February 26, 1980, a motion to
dismiss the case during pre-trial hearings
was dismissed. Trial was set for September 8,
1980.

The trial, presided by Justice Sybil Hart
Kooper, lasted five days. The most damaging
witness was Leroy ‘‘Ka-Beem’’ Smith. Dur-
ing the trial, the defense attorney called Ka-
Beem ‘‘a liar.’’ However, after two days of
deliberations, the jury decided the attorney
was wrong. On September 1 8th, they returned
a verdict of guilty of murder in the second-
degree, robbery in the first-degree, and cri-
minal possession of a dangerous weapon in
the second-degree.

On. October 20, 1980, almost a year after
the rabbi’s death, Justice Kooper sentenced
Miller to 25 years to life imprisonment for the
murder, eight to 25 years for the robbery
charge and five to 15 years for the possession
of a dangerous weapon. The sentences were to
run concurrently. The justice cited Miller’s
lengthy criminal record and a probation report
that described him as dangerous. as factors in
her decision. @

EDITOR’S NOTE:

The names Lorraine Matthews, Leroy
Smith, Claudette Courbet and Linda Evans
are fictitious and were used because there is
no’ reason for public interest in their true
identities.

VICTIMS’ COOKIES:

$60,000 a year at Allied Die Casting, had
committed the slayings to pick ‘up ‘‘quick
money’’ and to gain control of the firm. He
was believed to have fed arsenic to the female
victims in ‘‘snack foods such as cookies’
during lunches with them at their Leisure
Village home. :

At Charles Albanese’s monde trial, which
got underway in the first week of May, 1982,
in Bloomington, Illinois, where it had been
moved on a change of’ venue, McHenry

County State’s Attorney Theodore Floro said ;

the defendant was motivated by ‘‘financial
need’’ in the deaths of his father and Mary
Lambert—the two for which he was currently
being tried. Albanese, Floro went on, headed
on ‘‘unhappy’’ family business and was
fighting his’ father’s decision to lessen his
influence in the. firm because he was not a
“*successful’’ young businessman.

On Thursday, May: 6th, the prosecution
placed on ‘the stand ‘a’ Woodstock, Illinois,
accountant who testified that because of his
**spending pattern and obligations outstand-
ing*’ the defendant was in ‘ ‘critical financial
condition’ in August of 1980.

On Friday, the president of an Elkhorn,
Wisconsin, die-casting ‘company told the’
court thatin September or October, 1979, he
gave Charles Albanese a butter tub-sized
plastic container holding some arsenic. The

’ defendant, he noted, ‘had told him that he-

wanted to exterminate some ““pests’’ he had
found rooting through ; ‘the Balaes: at. his
Spring Grove home: a

Continued from page 41

Some two weeks after that, the witness
went on, Albanese told him that he needed
more poison. All in all, he gave the defendant
between two and two and a quarter pounds of
arsenic so lethal that an amount the size of an
aspirin would kill a human being. °

Also testifying on Friday were four doctors

who said: that in their examinations of the.

victims they had not thought of arsenic
poisoning as a possible cause of the vomiting
and nausea. N

‘‘We don’t think of the exotic,’’ said the
Crystal Lake physician who had examined
M.J. Albanese and his younger son. ‘‘In Chi-
cago, when you hear hoofbeats, you don’t
think of zébras.”’

The witness went on to say that Albanese’s
brother went into the hospital for the first time
in September, 1980, and then.again at the
close of February, 1981, shortly after eating
lunch. M.J. Albanese entered the hospital for
the first time in March, 1981. When he was
asked if the elderly man was visited by any
relatives during his stay, he answered, *‘The
one I remember most being there, almost
hovering every day, was Charles.’’

On Monday, May 10th, Charles.
Albanese’s younger brother took the stand as’

a prosecution witness to tell of the effects of
arsenic poisoning.

*‘T still suffer from numbness in my hands.
and fingertips,” he testified. *‘I can’t pick up:

a coin. And keys with locks are difficult.’
The young man told the jury that on three
occasions after eating lunch at the conference

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ALBANESE v. McGINNIS 563
Cite as 823 F.Supp. 521 (N.D.III. 1993)

Greer, 493 U.S. 874, 110 S.Ct. 206, 107
L.Ed.2d 159 (1989).

{42] The court notes that while the in-
structions given were correct, they were in-
felicitously phrased. Triple negatives are
not conducive to comprehension. The “suffi-
cient to preclude” instruction garnered much
attention recently, when another member of
this court found, based on juror comprehen-
sion studies, that instructions similar to those
given in the McHenry case were confusing
and violative of the Eighth Amendment.
United States ex rel. Free v. Peters, 806
F.Supp. 705 (N.D.II1.1992), vacated, 1993 WL
130236 (N.D.IIl., April 15, 1993).°° Whatever
this court may think of the clarity, or lack
thereof, of the Illinois death sentencing in-
structions, the Seventh Circuit has made it
plain beyond cavil that the instructions are

constitutionally sound and that district courts ©

have no authority to’ conclude otherwise.
Gacy v. Welborn, 994 F.2d 305 (7th Cir.1993),
reh’g denied, (May 7, 1993); see Silagy v.
Peters, 905 F.2d 986 (7th Cir.1990), cert. de-
nied, 498 U.S. 1110, 111 S.Ct. 1024, 112
L.Ed.2d 1106 (1991);. Williams v. Chrans,
945 F.2d 926 (7th Cir.1991), cert. denied, —
U.S. ——, 112 S.Ct. 3002, 120 L.Ed.2d 877
(1992). Albanese cannot obtain relief on the
basis of Claim 15.

B: Life Imprisonment without Parole.

Albanese challenges another aspect of the
sentencing jury instructions in Claim 16:
The trial court erred in instructing the
jury which was to determine the death
penalty issue in the McHenry County case,
in that it failed to instruct the jury that the
alternative to the death penalty was life
imprisonment with no possibility of parole.

On direct appeal, the Illinois Supreme Court
determined that there was no error in failing
to inform the jury that life imprisonment was
the only alternative to the death penalty
because “the jury was only responsible for

50. Subsequent to the decision in Free, this court
requested additional briefs from the parties on
the impact of the Free juror comprehension stud-
ies on the instruction given in this case. In light
of the Seventh Circuit’s opinion in Gacy v. Wel-
born, the court does not address the issue.

choosing whether the death penalty was ap-
plicable, not the severity of a prison sentence
should the death penalty be found to be
appropriate.” Albanese I, 79 Ill.Dec. at 621-
22, 464 N.E.2d at 219-20.

Under the Illinois Unified Code of Correc-
tions, a defendant who has been convicted of
more than one murder must suffer one of
two penalties: death or life imprisonment
without possibility of parole. Ill.Rev.Stat. ch.
38, 91005-8-1(a)(1)(c). The jury in the

_ McHenry County case, which convicted Alba-

nese of two murders, was instructed in rele-
vant part as follows:

It is the law of this state that every person
found guilty of murder shall be put to
death or imprisonment. Only you can de-
termine that the death penalty shall be
imposed by the Court. If you do not do
so, the Court will sentence the defendant
to a term of imprisonment.

Mitigating factors may include that. ... the
defendant may be rehabilitated or restored
to. useful citizenship.

If after your deliberations, you are not
unanimous in concluding that there is no
mitigating factor or factors sufficient to
preclude the imposition of the death penal-
ty, sign the verdict form that says no
agreement on death penalty.... If you
sign these forms, the Court must sentence
the defendant to imprisonment.

(McHenry R. vol. XXXVI at 242, 247-48).
These instructions are essentially identical to
Illinois Pattern Jury Instructions 7A.01 and
7A.04 in effect in 1982.

Two arguments have been advanced in
support of Claim 16. Albanese himself es-
sentially argues that the instruction incor-
rectly summarized state law. A more com-
plex argument is urged by amicus curiae,
the Capital Resource Center, McArthur Jus-
tice Center, Alton Coleman, Andrew Kokora-
leis, Jerry Mahaffey.*! Amicus curiae con-
tend that the Illinois Supreme Court’s failure

51. Like Albanese, these three individuals have
been sentenced to death after being convicted of
more than one murder. The juries which sen-
tenced these inmates were instructed that the
alternative to the death penalty was a term of
imprisonment; life imprisonment without parole
was not mentioned.


064

to apply its decision in People v. Gacho, 122
Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146
(1988), cert. denied, 488 U.S. 910, 109 S.Ct.
264, 102 L.Ed.2d 252 (1988) retroactively to
Albanese, and to those similarly situated,
violates the Eighth and Fourteenth Amend-
ments. The court addresses these argu-
ments in sequence after summarizing the
Gacho decision.

1. People v. Gacho.

The defendant in Gacho was convicted of
two murders. On direct appeal, the Illinois
Supreme Court affirmed his convictions, but
found that the defendant had been deprived
of a fair sentencing hearing due to the prose-
cutor’s improper argument that defendant
might be released on parole from a term of
imprisonment. 122 IIl.2d at 256-57, 119 III.
Dec. 287, 522 N.E.2d 1146. The prosecutor’s
comments included the following: “Well, you
know that Richard Speck was originally sen-
tenced to death, and he comés up for parole
every two years, and one day he is going to
get out on parole” and “I ask you to consider
the opportunity that this man will someday
have to hurt somebody else ... consider that
some day he may have that opportunity
again.” Jd. at 256, 119 Ill.Dec. 287, 522
N.E.2d 1146. The Court noted that com-
ments regarding the defendant’s possible fu-
ture crimes are even more inflammatory than
remarks about the possibility of parole. Jd.
at 259, 119 Ill.Dec. 287, 522 N.E.2d 1146.%2

Having held that the prosecutor’s com-
ments required a new sentencing hearing,
the Court went on to “address ... issues
which might reappear at the new hearing.”
Id. at 260, 119 Ill.Dec. 287, 522 N.E.2d 1146.
The defendant argued, as Albanese had on
appeal, that the jury should have been in-
formed that the only alternative to the death
penalty for a convicted multiple murderer is
life imprisonment without parole or release
except through executive clemency. In a
break from its past holdings, the Court ac-
cepted this argument. Jd. at 260-63, 119
Ill.Dec. 287, 522 N.E.2d 1146.

52. These facts are related here in some detail
because the improper comments of the prosecu-
tor were the reason the Gacho court determined
that a new sentencing was warranted; the lack

823 FEDERAL SUPPLEMENT

The standard IPI instruction given here,
which states that if a sentence of death is
not imposed, the judge will sentence the
defendant to imprisonment, is not a com-
plete instruction as to the statute in regard
to a multiple murderer. A convicted de-
fendant cannot be given imprisonment for
a term of years, but is required by statute
to be sentenced to natural life imprison-
ment.... [The instruction given] could
have persuaded [the jury] that the death
penalty was the only certain way to protect
society from this defendant.

Id. at 261-62, 119 Ill.Dec. 287, 522 N.E.2d
1146. The Court acknowledged that it had
previously approved the use of instructions
not including a life without parole provision
in multiple murder cases, citing Albanese I
and People v. Stewart, 105 IIll.2d 22, 85 II.
Dec. 241, 473 N.E.2d 840 (1984), cert. denied,
471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 283
(1985), and directed that its decision be ap-
plied prospectively only:

Our decision on this issue differs from
what this court said in Albanese and Stew-
art. Under the supervisory authority in-
herent in this court, as well as that con-
ferred by section 16 of article VI of the
Illinois Constitution of 1970, we direct that
after the date of this opinion, the trial
courts of this State, when conducting a
sentencing hearing involving a defendant
convicted of multiple murders, use the [life
imprisonment] jury instruction.

Gacho, 122 IIl.2d at 262-63, 119 Ill.Dec. 287,
522 N.E.2d 1146.

In the years since Gacho, several litigants
have argued that Gacho announced a new
rule of constitutional criminal procedure
which must be applied retroactively to cases
which were on direct appeal at the time of
the decision. The Illinois Court has consis-
tently refused to apply Gacho retroactively,
holding that it did not announce a constitu-
tional principle, but was based exclusively on
state law. In its most recent case on the
issue, the Court stated:

of a life without parole instruction did not neces-
sitate the remand. Gacho, 122 Ill.2d at 259-60,
119 Ill.Dec. 287, 522 N.E.2d 1146.


ALBANESE v. McGINNIS

|
of
iil

569

Cite as 823 F.Supp. 521 (N.D.III. 1993)

Defendant argues that in light of Griffith
v. Kentucky (1987), 479 U.S. 314, 98
L.Ed.2d 649, 107 S.Ct. 708, the new rule
announced in Gacho must be applied retro-
actively. According to Griffith, decisions
announcing new constitutional rules of
criminal procedure are “to be applied ret-
roactively to all cases, state or federal,
pending on direct review or not yet final.”
(479 U.S. at 328, 93 L.Ed.2d at 661, 107
S.Ct. at 716.) The court has answered
defendant’s argument in other cases, and
has held that the Gacho rule was decided
as a proper rule of statutory interpreta-
tion, and did not constitute a new constitu-
tional right. (See, e.g., People v. Franklin
(1990), 135 Ill.2d 78, 114 [142 Ill.Dee. 152,
552 N.E.2d 743]; People v. Kokoraleis
‘ (1989), 132 Ill.2d 235, 288 [138 Ill.Dec. 233,
547 ~N:E.2d~ 202}; People v. Coleman
(1989), 129 Ill.2d 321; 348-49 [135 IIl:Dec.
834,544 N.E.2d 330]; People v. Spreitzer
(1988), 123 Ill.2d 1, 48-44 [121 II].Dec. 224,
525 N.E.2d 30].) We reaffirm the view
that the Gacho rule is prospective only.

People v. Steidl, 142 Ill.2d 204, 245, 154
Ill.Dec. 616, 568 N.E.2d 887, cert. denied, —
U.S. ——, 112 S.Ct. 161, 116 L.Ed.2d 125
(1991).

2. .Constitutionality of McHenry
Instruction.

[43] Albanese argues in Claim 16 that the
jury instruction given in the McHenry case
was “not a full and accurate statement of law
concerning the sentence to be imposed.”
(Petitioner’s Resp. to Mot. to Deny Pet. at
21). Albanese is certainly correct that the
instruction was not a complete statement of
the death penalty statute’s provisions; addi-
tionally, the court believes that the instruc-
tions given were misleading. Because this
error was one of state law, however, it cannot
be remedied by a federal court. Lewis v.

53. See, e.g., Note, Julian H. Wright, Jr., Life-
Without-Parole: An Alternative to Death or Not
Much of a Life at All?, 43 Vand.L.Rev. 529, 537
n. 47 (1990) (stating that the law is unsettled
regarding how much information death qualified
jurors should receive about parole).

54. A capital sentencing scheme must satisfy ‘two
competing commandments of the Eighth Amend-
ment.... States must limit and channel the

Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092,
3102, 111 L.Ed.2d 606 (1990) (“federal habeas
corpus relief does not lie for errors of state
law”); Pulley v. Harris, 465 U.S. at 41, 104
S.Ct. at 874; Taylor v. Gilmore, 954 F.2d
441, 448 (7th Cir.), cert. granted, — U.S.
——, 113 S.Ct. 52, 121 L.Ed.2d 22 (1992).

More generally, Albanese contends that
“{jJustice dictates that [Albanese] had to be —
sentenced by a jury which knew full impact
of the decision that it was to make.” The
only citation provided is to Gardner v. Flori-
da, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d
393 (1977), which held unconstitutional a-trial
judge’s use of a confidential presentencing
report in imposing the death penalty. Gard-
ner notes the seriousness of capital punish-
ment and states that it must not be permit-
ted to be imposed based on “caprice or emo-
tion,” but it holds no lesson for the propriety.
of the jury instructions at issue here.

[44] Neither Albanese nor amicus has
pointed to, and the court has not discovered,
any federal case holding that, as a matter of.
constitutional law, a capital sentencing jury
must be instructed as to all of the sentencing.
options a given death penalty statute pro-
vides.** Instead, once a state has complied
with minimum constitutional procedural safe-
guards *, it is given wide latitude to deter-
mine which factors a jury may consider in
deciding whether to impose a death-sentence.
California v. Ramos, 463 U.S. 992, 999-1001,
103 S.Ct. 3446, 3452-58, 77 L.Ed.2d 1171
(1983).

While Ramos did not address the precise
issue raised here, it is instructive. The
Court in Ramos considered whether the giv-
ing of the so-called “Briggs Instruction” in a
capital sentencing hearing violated the con-
stitution. The Briggs Instruction informed
the jury that a sentence of life imprisonment

discretion of judges and juries to ensure that
death sentences are not meted out ‘wantonly’ or
‘freakishly.’ ... [and] States must confer on the
sentencer sufficient discretion to take account of
the ‘character and record of the individual of-
fender and the circumstances of the particular
offense’ to ensure that ‘death is the appropriate
punishment in a specific case." Graham v.
Collins, — U.S. —~, ——, 113 S.Ct. 892, 898,
122 L.Ed.2d 260 (1993) (citations omitted).

566 823 FEDERAL SUPPLEMENT

without parole may be commuted by the
governor to a sentence that includes the pos-
sibility of parole. Jd. at 995-96, 103 S.Ct. at
3450. The jury in Ramos was not told that
the governor could similarly commute a sen-
tence of death to a lesser punishment. The
California Supreme Court reversed the death
sentence, in part because this combination of
instructions allowed the jury to believe mis-
takenly that the “only way to keep the defen-
dant off the streets is to condemn him to
death.” Jd. at 996, 103 S.Ct. at 3451. The
instructions given in Gacho and in Albanese’s
case could also produce this misapprehension
in jurors: - telling the jury that the alternative
to death is imprisonment might lead it to
believe that public safety would be assured
only through the imposition of the death
penalty. Gacho, 122 Ill.24 at 261, 119 Ill.
Dec. 287, 522 N.E.2d 1146.5 Despite this
concern, the Supreme Court upheld the con-
stitutionality of the Briggs Instruction in Ra-
mos, finding that it did not preclude individu-
alized sentencing determination or introduce
a speculative element in jury deliberation.
463 U.S. at 1013, 103 S.Ct. at 3459. More-
over, the Court found no constitutional infir-
mity in the California scheme which informed
the jury that-a life sentence could be com-
muted but not that a death sentence also
could be commuted. Id. In light of Ramos,
Albanese’s appeal to the general principle
that imposition of capital punishment must
be based’ on reason, rather than emotion and
caprice, is an insufficient basis on which to
grant relief. Al] constitutional rules can be
stated in very general terms, but general
principles do not compel specific rules. See
Taylor v. Gilmore, 954 F.2d at 446-47 (gen-
eral principle that capital Sentencing must be
reliable does not compel rule that sentences
imposed by juries which have been led to
believe that ultimate responsibility for sen-
tencing rests elsewhere are unconstitutional).

55. Gacho relied on a Fifth Circuit case in making
this point, King v. Lynaugh, 828 F.2d 257 (Sth
Cir. 1987). King was subsequently vacated, 850
F.2d 1055 (Sth Cir.1988) (en banc) (rejecting
defendant's argument that he was constitutional-
ly entitled to voir dire the jury on Texas Parole
law, such that the Prospective jurors would be
made aware that a Capital murder defendant
must serve a minimum prison term of 20 years
before becoming eligible for Parole), cert. denied,

3. Retroactivity.

Amicus curiae submits a more complex
argument. The statutory provision, IIl].Rev.
Stat. ch. 38, 9 1005-8-1(a)(1)(e), requiring
that a multiple murderer be sentenced either
to death or life imprisonment was enacted in
1980. Between 1980 and 1988, the date of
the Gacho decision, twelve multiple murder-
ers were sentenced to death by juries which
had been given the Illinois Pattern Instruc-
tion providing that the alternative to death
was “imprisonment.” (Amicus Br. at 2). A]-
banese was one of these offenders, Robert
Gacho was another. As has been set forth
above, the Illinois Supreme Court in Gacho
found the Pattern Instructions misleading in
cases of multiple murder, but ordered that
new instructions would be required only in
sentencing hearings held after the date of the
Gacho opinion. These: new instructions
would inform the jury that the alternative to
death is. life imprisonment without parole,
except through executive clemency. Gacho,
122 IIl.2d at 261-63, 119 Ill.Dec. 287, 522
N.E.2d 1146. The result of the decision, and
the subsequent rulings that Gacho would not
be applied retroactively, was that Robert Ga-
cho received the benefit of the new instruc-
tions at his resentencing hearing, but that
the other eleven defendants Sentenced under
the Pattern Instructions would not receive
that benefit. Amicus argues, with some
force, that this disparity in treatment be-
tween similarly situated individuals results in
the arbitrary and capricious imposition of the
death penalty in violation of the Eighth and
Fourteenth Amendments.° (Amicus Br. at
6).

[45-47] While this court cannot consider
alleged errors of state law on habeas review,
it can address claims that a state law is being
applied in an unconstitutional manner. Coo-
gan v. McCaughtry, 958 F.24 793, 802 (7th

488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809
(1989).

56. The court notes that not all of the eleven
multiple murderers identified by amicus curiae
are similarly situated. The convictions of nine of
the 11 were not final at the time of the Gacho
decision, while the Convictions of Albanese and
Raymond Stewart were.


Ch aeecemestt

ALLEN, John & SHELBY, Harry, whs, elec. IL (Jasper) December 22, 1933

=
Cs
<9

SUSPECT—
Police linked Allen to stolen car.

SHELBY—
Walked into trap &t Danville.

COZARD—
Neighbors found him beaten, bound.

ATROCITY VICTIMS—
B. Weldman, 87, and Anna Schrader.

Do all old, poor people have treasures

SHERIFF WARD—

+ ; hidden away? A trio of cruel desperadoes resorted Lisksa gieetilen’-te’Coserd: mievder,

to torfure and murder to find out.

By E. V. BURKHOLDER

HEADQUARTERS DETECTIVE, March, 1951.

N THE 65
never been
March, whe
converted c

himself.

“Recluse—ec
ton Cozard chu
imaginative ne\

It was true tha

acre farm. An

centric for not
his poor farm «
ings were in th

The newspar
perienced—a tl
story from the

Three days |

Jim Potent, tw
shack. They w
several days, ar

They “found

Cozard was ly

sick; he was da
He lay on |}
leather strap.

in the flesh, w!
on his head an
before being ss!

Sheriff Colo:

Cozard and de:
treasure, so dr
had undoubted

It was also «

LIEUTENANT—
Bireline traced

was gone. Th
and ragged jea
a few days be
Examining |
and legs of tl
were half trip
“You know
who didn’t ha
hunch, nothin
*“You’ll nee:
coroner remai
The body o
home in Dany


» & Danville.

‘ard murder.

N THE 65 lonely years of his life Newton Cozard had
never been as excited as he was that morning in late
March, when he sat on the steps of: his crude shack, a
coriverted corn crib, and read a newspaper article about

himself. /

’ “Recluse—eccentric—miser—buried treasure ” New-
ton Cozard chuckled as he read the description written by an
imaginative newspaper reporter in nearby Danville, Illinois.
It was true that Newton Cozard lived by himself on his 80-
acre farm. And some folks might have thought he was ec-
centric for not being more sociable with the neighbors, but
his poor farm didn’t earn much money, and his meager sav-
ings were in the bank, not buried in the backyard!

The newspaper article gave him a feeling he had never ex-
perienced—a thrilling sense of being important. He tore the
story from the paper. and slipped it in his pocket. ,

Three days later, on March 31, 1933, Frank Conrad and
Jim Potent, two neighbors, walked up to the door of his

shack. They were’ worried because they hadn’t seen him for |

several days, and they were afraid that the old man was sick.

They found the door to the shack open and entered.
Cozard was lying across the bed. The old hermit wasn’t
sick; he was dead.

He lay on his stomach, his hands and legs bound by a
leather strap. Around his neck was a thin wire, buried deep
in the flesh, which had been used to strangle him. Wounds
on his head and face showed that he had been badly beaten
before being slugged into insensibility,

Sheriff Colonel Frank Ward took one look at the body of
Cozard and decided that it was a torture murder. The buried
treasure, so dramatically described in the newspaper article
had undoubtedly been the motive.

It was also obvious to the sheriff that the crime had been
committed without any tell-
tale clues. The wire around
the dead man’s neck and the
leather straps around the arms
and legs probably had been
picked up in the shack, as they
were cOMmmon enough to
farms. A 14inch wrench lay
‘on the floor near the bed. It
was covered with blood; and
there were strands of white
hair mixed with the’ stains.

The sheriff picked it up
with his, handkerchief, laid it
on a table. He didn’t have
much hope that the wrench

LIEUTENANT—

‘ leave prints on such obvious
Bireline traced murder car. :

“weapons.

was gone. The only thing found in the pockets of his frayed
and ragged jeans was the clipping from the newspaper, which
a few days before he had so proudly torn from. the paper.

Examining the knots in the leather straps around the arms

and legs of the dead man, the sheriff was puzzled. They |

were half triple ones, tied at a peculiar angle.

“You know,” he said to Coroner Harry George,” a man
who didn’t have a thumb might tie a knot like that. It’s a
hunch, nothing more.” :

“You'll need more than hunches to solve this case,” the
coroner remarked. “But it might be a lead.”

The body of Newton Cozard was removed to the funeral
home in Danville for the autopsy. The 14-inch wrench was

/

- would yield any fingerprints. -
Killers of this type didn’t .

The murdeved man’s wallet

turned over to Technician Earl F. Rimbaugh, who made
an important discovery about the strands of hair mixed with

‘the blood on the wrench.

They hadn’t dome from the head of the murdered man!

The theory of their presence on the wrench was simple
to Sheriff Ward. Newton Cozard, to protect himself, had
grabbed the wrench arfd had hit his attacker over the head.
That was the only effort the old man had been able to make,
and the fact he was. so suddenly overpowered convinced
Sheriff Ward that there had been more than one attacker.

Sheriff Ward and his deputies questioned the farmers
living in the neighborhood of the Cozard shack. None had
seen anybody going to or coming from the place. And Police
Chief George E. Freeman’s men were unable to‘find anyone
in Danville who had even a remote suspicion about the
torture-killers.

i Bam on April 2, East Central Tllinois was electrified by

the discovery of a second torture attack. Henry Bogard,
aged Jasper County farmer, something of a recluse like
Cozard, was found lying across the bed in his small farm-
house, his hands tied behind him with leather straps and
his head pummeled with some heavy instrument. :

Jasper County is 30 miles south of Danville, and Sheriff
Ward: drove there when the news reached his office. He
found that Bogard was still alive and that the doctor held
out hope for his eventual recovery. .

“Let’s see the straps used to tie him,” Ward requested.

Sheriff Charley Sowers of Jasper County took Ward to
his office. The straps lay on his desk. The knots had been
loosened but not untied.

“The same kind of a knot!”

“What do you mean?” Sowers questioned.

Ward told him about the knots in the straps that tied
the arms and legs of the murdered Cozard. He concluded
with, “The same person who murdered Newton Cozard at-
tacked Bogard. There probably are more than one of them,
but this thumbless man is the leader. One of them has
gray hair.” : :

When Bogard regained consciouness, there wasn’t much
he could tell about the details of the attack. There had
been a knock on the door of his farm house, and when
he opened it, a tall, gray-haired man grabbed him and
pushed him against the wall, demanding his money.

There were two other men. Bogagd never got a good
look at -them. The gray-haired man knocked him back
against the wall, and the other two tackled him. The next
thing he knew the gray-haired man was tying his hands and
legs. They demanded money and beat him over the head.

He mumbled where they could find $5,000 in bonds
and $500 in cash. The three attackers left him and went to
where the bonds and money were hidden in a hole under
the floor. It was when they came back to him that Bogard
got a good look at the gray-haired man’s hand.

And he saw that this man had a thumb missing on his
right hand! oo tod

The man with the missing right thumb became a grim
reality, and his shadow left a cloud of fear and terror over
that part of Illinois. Sheriffs. Ward and Sowers knew that
he would strike again, but neither dreamed of the hideous
aspect of the third attack.

Mary Schrader was 82, a kind, sweet old woman, beloved
by the few who knew her. Her home was a ramshackle
old farmhouse, very much in need of paint and repairs,
ten miles out of Newton. It was on a knoll surrounded
by trees and a hundred yards from the highway, and people
who passed it daily seldom saw it. (Continued on page 40)

reapantacac RAC

SESE

Pei EE URE mm ESS Ta ea ee

SERRE GS


Idn't get the

ave criminal
ex-convicts
estville, six
{ Allen and
side the city
suld be two
wz to Anna
either Peck
man.
ed that job
them before
Patrolman
today, and
you to pick
in Golden-
can tell you
ft Freeman
tenant Leo
am Morris-

cked Peck’s
sped to the
trict—-Dan-
{up Patrol-

~ bad boys,
“Where do

Stark all
ed, “but I
cn in a joint
a
ting warm,”

panied
rissey
: door
veve whitered

s the place
red the bar-

Allen were
sre did they

nur. T don't
barkeep an-
id his words
stepped in

“Come on, mister, loosen up. Do we
find out where they went or do we kick
the joint over? And that’s a promise!”

The barkeep was smart. He knew how
tough Danville cops could be on joints
that ran on the shady side of the fence.

“Okay, you win,” he grumbled. “They
were here drinking when Peck got a
phone call, It got him all hot and
bothered. He grabbed Johnny and beat
it. They headed east on Main street in
Peck's car.”

Morrissey cast a knowing glance at
Sheriff Sowers:

“Smith’s talked to Peck’s women al-
ready and they must have become sus-
picious. One of 'em probably phoned
and tipped Peck off and he scrammed
with Allen. Come on, maybe we can
knock 'em off before they get away.”

The police car had raced about 12
blocks when Bireline grasped Mor-
rissey’s arm and pointed to a car turning
into a side street a block ahead.

“There they go, Bill! Run ’em to the
curb and I'll keep 'em covered.”

Peck and Allen turned pale when they
saw the police car cut in front of them
and force their car to the curb, They
surrendered when the police descended
upon them with drawn guns. A_ brief
search revealed that both were unarmed,

“T HE Boss wants to talk to you boys,”
Morrissey informed them.

“Sure, sure! We ain’t done nothing,”
agreed Allen,

Questioned at headquarters, both in-
sisted they knew nothing of the Schrader
case and swore they hadn’t been away
from Danville for a week. When asked
to explain what his car was doing at New-
ton, Peck became sullen and refused to
answer. He looked at Allen and a puz-
zled expression clouded his face. Allen
merely shrugged.

Chief Freeman ordered them held in-
communicado. He nodded to Bireline and
Morrissey:

“You two pick up Smith and beat it
out to Tilton after Shelby and Stark-—
and watch that Shelby, he’s a mean one
to handle.”

Discreet inquiry at Tilton revealed that
Shelby was at the home of a woman
neighbor. It was dangerous to try to
grab him in the house, so the officers used
a lure to bring him outside. Sending a
store clerk to tell Shelby he was wanted
on the phone, they hid in the store and
nailed him when he walked in the door.
He turned if to bolt but stopped suddenly
when he saw Detective’ Smith’s right
hand whip to his hip pocket.

“Okay, I'll behave,” he growled. “But
what do you want me for now? I ain't
been out of town for a week.”

That was exactly what Allen said when
he was picked up! Yet neither had known
why they were wanted by police. Why
then had they been so eager to declare
they had not Cush out of town?

Shelby was tough, all right. He sneered
and cursed when police tried to question
him, “I ain’t been out of town and I
don't know a thing about any job at New-
ton. Where is Newton, anyway?”

Then Sheriff Sowers took a hand in the
grilling.

“These men answer the descriptions
given me by Anna Schrader and the
Schackmanns, and Peck’s car checks with
the one seen at Newton the day before
Mrs. Schrader was attacked,” he said.
“But there’s still one important feature
we haven't checked yet. Remember that

te er Pe mt

Ed Schackmann said one of the suspects,
the big on that fits Shelby, had the thumb
on his right hand missing? Let’s have a
look at Shelby’s hands!”

During the questioning Shelby had kept
his arms folded, his right hand under
his left armpit. Now he paled and jabbed
his hands into his trouser pockets. Two
officers grabbed him and jerked his hands
into the open. The burly suspect fought
uselessly.

“That’s the man! Look, his right thumb
is missing!” Sowers shouted.

“They seem to be your men, all right
sheriff,” Chief Freeman agreed. “But
I'm afraid you'll have to do without Stark
for a while, [ put out a dragnet for him
as soon as you started out for Peck and
Allen and sent a squad car to Westville.
But we can’t get a line on him.”

Sheriff Sowers had left Newton too
hurriedly to think of warrants. Chief
Freeman agreed to hold Shelby, Allen
and Peck in the city jail until the deputy
could return to Newton and obtain war-
rants,

“Bring the Shackmanns back with you
and we'll see if they can identify these
men,” the chief instructed. Sowers re-

turned some hours later with three John
Doe murder warrants and Ralph and
Clarence Schackmann, the two sons.

_ The three suspects were placed in a
lineup with nine other prisoners, The
Schackmann boys were asked to point
out the ones who stopped at their home
and inquired about Bernard Weldam.

Without hesitation they pointed out
Shelby and Allen.

“That big man (Shelby) is the one who
has his thumb missing. The smaller fellow
was with him. We couldn’t see the third
one very well because he stayed in the
car,” they said.

Two of the murderers had been posi-
tively identified but the identity of the
third remained in doubt. The number of
suspects was limited to two—Peck and
Stark. Which of them was the third mem-
ber of the murder band that committed
the most atrocious crime in Illinois’ his-
tory?

There was one way to settle that point.
Anna Schrader could identify the three
men who attacked and assaulted her. So,
with Chief Freeman’s assurance that he
would continue ‘the search for Stark,
Sheriff Sowers bundled his heavily shack-

“But I didn’t mean to shoot him so hard!”

61


led prisoners into his car and took olf.

However, he did not drive direct
to Newton. He_ realized the strong
feeling certain to be aroused against the
suspects and feared a lynching. So he
stopped at Robinson,. Ill, midway to
Newton, and the trio was safely locked
in the strong Crawford county jail there.

Meanwhile, Bernard Weldam had mi-
raculously recovered and, like a voice
from the grave, he and Anna Schrader
pointed accusingly at Shelby and Allen
in the Robinson jail.

“They are two of the beasts who did
this terrible thing to us!”

But they could not identify Peck.

“We never saw that man before,” they
said.

That left Stark as the most logical sus-
pect. And he was definitely branded as
the third man in the case when Weldam
and Miss Schrader identified a photo of
him.

But despite hours of grilling Shelby and
Allen refused to confess. Shelby, how-
ever, weakened enough to say:

“Take me back to Danville and let me
see my folks and I’ll tell you what you
want to know.”

Thus, within a week after the horror
at Newton, Harry Shelby was turned over
to me t6 hold in the Vermilion county
jail. Allen was sneaked into the Newton
jail and his presence there kept a pro-
found secret,

Shelby was permitted visits by his rela-
tions under close guard but he failed to
keep his promise, and refused to confess.
His stubbornness irritated even the local
police, They had him strapped in the chair
and he knew it, but he would not admit
his part in the murder.

From the first minute Shelby and Allen
were arrested I had a hunch they knew
something about the murder that had
stumped me for so many months—-the
torture killing of old Newton Cozad.

I SAW and questioned Shelby about the
Cozad case every day. But I did not
treat him the way suspects are usually
treated. I played up to him, gave him to-
bacco, fruit and choice food, talked to him
for hours to gain his confidence. I knew
he’d never talk if he was bullied.

The city detectives had their own in-
vestigation under way, getting conclusive
evidence to convict Shelby and Allen.
Acting on a hunch, they questioned a
woman who had been a close neighbor
to both Shelby and Allen.

Their hunch was correct, but they had
difficulty getting her to talk. She was
afraid the boys would beat the case and
kill her if she gave police any incriminat-
ing evidence.. Once convinced she was
safe, she seemed glad to tell all she knew.
And it was plenty.

“Johnny told me about that job at
Newton before the old woman died. He
said Stark and Shelby were with him,
and that he borrowed Peck’s car, telling
him he was going on a date. But he never
said anything about beating up the old
folks or assaulting the women,”

Then she released a bombshell!

“He also told me that he and Shelby
killed Cozad. I was at Mrs. Shelby’s house
the night the old man was killed. Harry
and Johnny came home covered with
blood and said they had an accident with
the car. I gave Harry one of my husband's
shirts and the next morning Mrs. Shelby
came to my house and burned Harry’s
bloody clothes in my stove.

“T never suspected a thing until I read
of the murder in the papers. Then I

62

noticed Harry didn't have any cuts or
bruises on him and became suspicious.
I guess he realized I suspected him,
too, because that same day Johnny caine
to my house and threatened to kill me
if I ever talked. I was afraid of them,
that’s why I kept still.”

She made a more detailed statement
and signed it.

Paradoxically, at that same moment I
was talking to Harry Shelby. [ had talked
to him since 9 that morning and it was
now 3 in the afternoon. With each passing
minute he became more friendly toward
me, more confidential, I kept plugging
at him about the Cozad case. linally I
sensed he was ready to talk.

“Hell, sheriff,” he said, “you’ve been
decent to me and I owe you a break. I'll
burn for that Newton job, anyway, so I
might as well settle that Cozad case for
you. But first I want to ask you a ques-
tion.”

“T’ll answer it if I can, Harry.” I prom-
ised,

“T know you will, sheriff. Now tell me,
did you find any fingerprints on that
monkey wrench you found in the shack?”
I answered him frankly:

“T can’t tell you that, Harry.”

Shelby was nonplussed at my answer.

“Well, I just wanted to tell you they’re
not mine if you did find any. They were
the old man’s. When I went to grab him
to tie him up he backed against the wall.
The wrench must have been hanging on
the wall and he grabbed it and came out
swinging, He smacked me on the head
and laid me out. Then Johnny conked
him with the but of his gun.”

Shelby put his head close to the bars
of his cell and parted the fringe of hair
on the side of his head, revealing a large
scar.

“See, there’s the scar he made when he
banged me with the wrench.”

The ice was broken. Shelby made a
complete confession to the Cozad murder
and implicated Allen. And his confession
verified the neighbor woman’s story.

“L owas sure she suspected me and
Johnny knocked off the old man, so I
had Johnny throw a scare into her. He
saw her the next day and told her he
would kill her if she ever talked to the
cops. And he meant it too!”

But Allen refused to confess to the
Schrader murder, even when he knew he
was doomed on the Cozad case. I con-
ferred with city police and we decided to
use a police trick as old as the hills, but
one that seldom fails to work. Armed
with the information contained in the
womian’s statement, several officers talked
to Allen at Newton,

“You might as well talk, now, Johnny,’
they told him. “Shelby just confessed to
the Schrader and Cozad murders at Dan-
ville. Listen to what he told us.”

And they repeated the story they had
devised from the information given by
hi woman, It was gospel, and Allen fell
or it.

“So that old bald-head squawked, did
he?” he cursed. “Well, I might as well
spill my guts, too. There’s no sense in
holding out now.”

Allen then gave a signed confession to
the Cozad and Schrader killings, ad-
mitting that he and Shelby had killed
Cozad and implicated Stark as the third
man in the Schrader murder. The officers
raced back to Danville, and pulled the
same gag on Shelby. It worked beauti-
fully!

“So that little punk squealed, huh?” he
muttered. “T guess I might as well sing,
too.”

And his song was pleasant to our cars
His confession to both murders was a
repetition of Allen’s and was the closing
link in our chain of evidence to send both
of them to the chair.

The confession of Shelby and Allen
implicated Peck in only one case on
which he could be tried. That was the rob-
bery of Carl Joiner at Oakwood, nine
miles west of Danville. Two trials re-
sulted in hung juries, buta third trial con-
victed him and he was sentenced to one
year to life in prison.

He never served that sentence, how-
ever, Hle languished in) the Vermilion
county jail for more than a year while the
conviction was fought through the lower
courts. Finally the state supreme court
reversed the conviction On an error and
failed to remand it back for a new trial.
Peck was released and immediately dis-
appeared from Danville.

Shelby and Allen were indicted for both
the Cozad and Schrader murders, but
were tried first on the latter. They went
on trial at Newton on October 16, 1933,
with Judge Thomas Jett presiding.
State’s Attorney Homer Kasserman ably
handled the prosecution, assisted by
State’s Attorney J. Stanley Bradbury of
Crawford county. ‘Two Newton attor-
neys were appointed by the court to act
as defense counsel.

The defense was without a single wit-
ness, while scores of prosecution wit-
nesses from Danville, Robinson and
Newton testified,

HELBY and Allen were convicted and

sentenced to die in the electric chair
Allen took the sentence stoically, but
Shelby snarled and hurled imprecations
at the judge and spectators.

They died in the same manner. On
the night of December 22; 1933, T stood
in the execution chamber of the state
prison at Menard and saw Harry Shelby
and John Allen pay with their lives in
atonement for the crucl murder of two
aged and defenseless victims.

With the execution of Shelby and Allen,
the case might have been closed but for
the stubborn tenacity of three Danville
police who refused to cease the hunt for
Karl Stark, the third member of the
fiendish band.

Determined to track down Stark, Lieut.
Bireline and Detectives Smith and New-
man sought out every known relative of
Stark and interviewed them individually.
After many weeks they finally struck a
promising lead when one of the family
stated that Stark had an uncle in Marble
Hill, Mo., whom he frequently visited.

Bireline telegraphed Marble Hill police
asking them to pick up Stark. Stark was
not at his uncle’s house at the time, but
the sheriff arranged with a neighbor of
the uncle to notify him when Stark put
in an appearance.

Months passed without any word from
Marble Hill, and the Danville officers
were beginning to despair anew. It was
nearly a year to the day after the execu-
tions of Shelby and Allen that the break
arrived. Stark visited his uncle and
the sheriff had nabbed him!

In the last week of December, 1934,
Stark was returned to Newton to face
trial. State’s Attorney Kasserman, who
sent Shelby and Allen to the chair, real-
ized that he had a weaker case against
Stark and, rather than risk seeing him
acquitted of murder, agreed to com-
promise. Stark was allowed to plead
guilty to a charge of manslaughter and
was given aone to 14 year sentence,

“No, IT didn't
been one, beca
the road for lor

It was late,
turned their car
learn if anythin},
post mortem ¢

But the tw¢
heads uncertair

“He's been de
Coroner Scholt
killed him is an
hit a couple of
either one of
enough to caus
telling what he
have been a clv
heavy and blun:
ever it was, it
sions.”

Meantime, C:
ing the finger,
covered on the
of the car Al
rendezvous wit
most of the priv
victim proved

Rut there wa
made by a fem

This might m
less the woman
of the prints,
warded to head

ik

Hurry—if you v
ever offered. T!
beautifully refir
one-half the ma
ingly fortunate
to make this ser
open 10-day tri
without risk. C

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.

side? The southeast corner, Right
in the corner? It was close to the
COPDOL,

tow far off the floor was the
fight About that high? © When you
were thore on the bed, could you sit
ap. Ne. ko was flat on my back:
Were your bands tied to the frame
of tne bed during the the first part
of the evening? No. ‘They were tied
logcther? Yes, Were your feet tled
to the bed’  —[ was tied with wire,
but not to the bed. They tied me that
wey outside fa the yard. Wag it
takes off while they were there? No,
Did you see them Pring your mother
in to that :vem’? No. Mamita was
in fhe other rooyn until they brought
her in omy room and prt her to the
ebber bed, Which direction was that
bed irom yetu bed? Tk is fu the
emubeast corer What direetion is
that etait ten) fo you? Northeast,
Lo oyyties

From, the, time that yeu saw your

smother out ti the.yard, when was the

next time that you saw her? ‘That
saine night when the mon went away
whet 1 tore her loose on my uncle's
bed TL saw her first. What kind. of
a Uebt was that, Miss Sohvader? Jt

‘aa on Ritehen lamp. What number
“ine does it have? A mumber one I
guess, It is ove of the little kind.
Was it turned up bright? Yes, it was
when they went away. Tt had paper
arranged towards the window so that
i did no’ give very much Jight. You
say that they tore up the house, and
the things in the housé? Yes.

Where did you find these things
(the exhthits)? I found therh among
our Uhings, bet they had upset every-
Uning.

When you went over to Robinson,
explain to the jury the circumstances
vuuder which you saw these men;
where were they ? in Robinson, in
jail, What hind of a room were they
in? { don’t know what room it was.
(CG Was close to the stalrway., Was it
n darge roma? Not so very; it was
a kind of a tall; IT am not acquaint-
ed with that fail, How many people
were present when you were in there?
There was more, I don't know how.
many,

Where were these men when you
saw them, were they standing off to
themselves? They were standing to
one gide in a row, them .two and
another. Was there any one else in
the roon)? Just these two and one
otner, Did they have handcuffs on?
UL don’t Imow. What kind of clothes
lid they have ou? Can you deseribe
‘heiv vlothes? What kind of clothes

lid Shelby have on? Some kind of
aveater coat. Can you describe any-
hing clse he had on?.. A woolen hat.
Anything else? Do you. remeber
ihe color of the hat? It was a dark
odut, brown or greyish; color, | How
lid you recognize him 4s being the
one you had seen at your house? I

‘cen hig face over there and that
looked just. like the face that was at
our house. Was there any thing pe-
eullar about the face that you recog-
nized? No. He just looked like the
same fellow? Yes.

Now, what kind of clothes aid Allen
have on at. Robinson? > Ovérall
britches. With a bib? I guess so,
Anything else you can tell about his
clothes? No. Did he have & hat on?
Ne. He had on a cap at our house.
How, did you recognize him, at Rob-
inson? I had seen the face at our
house. Was there any thing particu:
lay about the face that you recogniz-

ed? No. Just looked like the same,

fellow? Yes. Did he have on. the
same kind of clothes at Robinson
that he had at your home? He had
on a light green shirt at‘our house
and a light blue cap. Was it the same
eap he had on at Robinson? He was
bare headed there. What day of. the
month is this? . October, What day?
Tho Vth. :

Allen: that he: was. tha:

WOU VCD CLLR UL PU KIRA ARR AGS

Watkits,.

At the tilght geesion, Tuesday oven-
ing, Mrs, Mary ‘Yager: ‘testified to see-
ing the contenté of. the house. scatter}
ed about and thrown over the floor,
but objections by the defense prevent-
ed her tellingy about the ‘eriminal aty
tacks on Anna find her mother, ©

day, August 31; and the siibsequent
arrest of Shelby at Danville, as’ dé-
tailed at length in the Presa at the
time, Dr J. W. Plutton was: cabled,

Angust 31. from. concussion “of. the
from a blow, with a blunt jnstrument

that she bad both eves blackened, a
broken arm, and a bad bruise ‘on ber
face, he dles haying blood
trom) its
bruledg all: over her MBER:

ders, bégides ‘Apparent teeth:
on the breast. She and Miss. Schrad- }
ér had been criminally. attacked Bev:
eral times, he satd. .°

Mx. Weldam, he said, hiv: found lye],
ing on the bed with his fade, breast

bruised, his. eyes practically. closed
from blows, and his face swo: len, : My,
Woldam bad told him, he added about!
being stepped: on, - Miss Schrader had
her eyes blacked, her :fade. and lips
swollen and het teeth hurt As a: result
of blowea..
City Marshal Hansel ‘Bravkett. told
of seeing the Peck car and’ hg prison %
ers at Danville. in

Next Mr, Kassernian He an fo: iry.
to have tho. confessions “made. by}
Shelby and Aller’ at Robinson, Sep-
tember 4; admitted. | In. ‘the. absence
of the juty Miss Mary Magleton and:
Miss Dorothy Lamar, stenographers;
testified to taldng the RtALEERTA, be-
fore court adjourned, 9.5

Wednesday “horning, | Sheritt’ “Foun

ley Bradbury of Crawford ‘edunty,
Acting. Ohiet L, M. Taylor'of thé state.
highway. polige, ‘Fire: Marshal: e Be |
Talley. of Mount ° (Carmel, 0.0.
Wright: of. Robinson, Sergeant, G Wy
Roth’ of: ‘Champaign, Sergeant Jesse:
Grissom of Hffingham, aud Jack Cline
of Marshall, highway policemen, told
of being present when. the confessions
werd taken, |All denied any force or
threats were used or- promt ads _Biyen,
except that Sergeant Grissom told of
seeing at ‘unnamed deputy. ‘sheriff
slap Allen over the back of the head
with a ‘leather: strap three-cights, of
an ifelt wide and five. inghes - jong.
No mati Was made, Dro Jel Allen
testified.’

Again in tlie abserica: ‘pt “the jury,
Allen and Shelby took thé stand. ' The
latter told of being compelled to atand’
for twelve houts without food or
water, while. béing quéstioned; : “al-

down niiost. of ‘the: time. a also ‘said

told a! "aimitlat ator: pe
said that he. plainly . told:
his story was not true. ‘era Aes gald
they promised, to tale him, ‘to. Dans
ville if he: confessed,

Allen's. confession, Was admilited® by
Judge Jett ao far fs it applied to.
himself, and wag read to ‘the jury by
State's Attorney. Kaasermani Tt: was
similar to the: previously described
confession ‘except that the. third man

After Sheriff’ Sowers had tld of
the arrest of Allen and FL irold Peek |
of Danville in Peck’s car ) beanie |
Indiawa license No. 56-f44 on: ures |’

Fie stated that Mra. Sebradér’ died]
brain. as a vestilt of a skull traeture |.

on the left side of her head. He said],

and back black and blue, his hands }-

Keller and. State's. Attorney: a. “Stan-|

though, state witnesses’ ‘mald. we gat]

was called “Bud,” and he claimed -he
didn’t know who “Bud! was,. All the.
officers previously enumerated, Sheriff.
Sowers and: ‘Deputy - ‘Bheriff: Watling |
testified previous to, ita admission.
Tha latter denied thé. acaugation, ‘of

struck lim, with the straps.
Mr. ‘Brh toury was mex Al wed to

Ce/ey


PBeatined. 1 could see a little. Could
jnou positively say that either of these

pmen steuck vous TF could net say
hwhieh one,

You connot positively say that it
lyr ji this moan op that one, or either
one of Teo’ No, (here: might have
been three Maybe it was the other
pone. Pwo af Chen. tled me to the
fehouri One led cae hand and one the
other, How many Cores do you think
Perea Tavs seon Shelby? Outside the

‘fdoor, and after that I didn’t natice
Ate Tbe next Gime yeu saw fin

battor witt happened over there, where
jwas that At Robingon, What were
jibe ciretuuslanees there under which
you saw himy Did you talk to him
over there” No. Some one clse did
(fe tatkines.

| How‘did you identity him over there:
jis being the same person that you
Pow ower Gere at your bame? T sgayw
ihis free oud remembered, Did any
nue at that time suggest to you” that
bossibly he was:the same mart?) Ne.
Wid you ever. seo any one else who
resciubled him? No. Wer there nny
pparticular marks about him that you
irecognized hitn by? Yes, by his nose.
(Yeu understand, don't you, . Mr.
/Weldiin, the nature of this ease that
iis boing tried here; that these nien are
‘hein fried for murder? I understand
‘that omneh. And yeu understand
That possibly on your evidence he may
be convieted of murder?. Yes. And
you understand that the penalty for
wurde ean be death? Yes, I Ienow.
SUI vou feel that vou are positive in
yout identification of this man? f
know tam, T understand that much.
And you are positive in your mind
that this is the man that was at your
place’ To am sure he was there,

Are you positive of it? Yee, Did
you recognize this man when you

came in the court room as one of the
men who wore at your place that
ment Yes. Did any one point him
out to you Ubis morning as the man
who wes there? No. Did yout niece
poiny him out to you? Yes J believe
‘vour niece pointed hint out to!
you in {he court room. this morning.
No. You had recognized hina before
that time? Yes,

Mr. Weldam, when yeu went over
ig Robinson to see these men, was
there any one else in the room where
ihey were? Yes. There were three
met. Did they have handcuffs on
them? 1 don't know. Llow many
men were there in the room when you
looked at them? There were three
ot them. Besides these men? Maybe
there were more of them, Were these
mieu standing’ to themselves? Yes,
(Off in a corner. Did any one point
‘theur out to you there? They showed
ithem to me. Did you recognize them
jbefore they were ponted out to you?
Yes. ;

Mr. Weldam, do you know that
wan?  (Tndieating Sheriff Sowers,
seated at some distance. ) I believe
U don’t know: T see him before but 1

so

dom't isnow him. Do you know him
now’ (Calling Mx, Sowers closer).
Uocant tell who he is. Was he at

Nohingon with you? 7 don't know.
Mr. Weldni, would you now Charlie

Sowers if you would seo him? T be-
lieve L would’
Vestimony of Anna Schrader:

Slate's Attorney Homer Kasserman:
What is your nae? Anna Schrader.
Mow old are you? 46, suing on 47,
Where do you live? in St, Peter's,
Which way from Newton? North
east, about two wiles. Whe do you
ve swith? My mother end uncle,
Do wou recall the night of ‘Tuesday,
Aurtiet 20, 29387 Yes sir, Where
were wou that evening? 07 the house.
What happened there at that time ?
“We tad in our house that
jevoniug. What time ated they come?
Hl don't know. Jt was daylight when
fhey enme, bet it Sol dark vieht

rolhors

av Wo dye noting. Aud then the
other than had agin, too. They both
had guns, What’ happened - next ?
Just in a minute Shelby pointed a

yun too, but Allen was the first that,

showed his gun, . ; poe
Tell what they did? next?
Mamma cane up and we was talicitig
together. She was hard of hearing
aud could not understand, and I thidk
she thought they agleed could they
slay all night at our house, and sha
sud ne. And then Allen took hold bf
Wer. She had: a fork in her had,

and 1 don't know. whether ho took her |!

by the arm or took hold by the fork
she id in her hand, and he tried .to
throw her down. He had his foot

around this. way: (idicating) trying

to throw her down: Then, unéle

thought they wanted to luit rmarana
and then’ theyt' fhrowed.. hin” down
Then they throwed me down thd tied
me with wire by the hands sind feat:

What did they do: to your. clothing ?
Then when 1 was down, they tore, my
top dress from té,cand. tore, strings
from it and tiéd {hem over my mouth
and neck., C Kept sayings the words
“Jesus, Mary, and-Joseph, be with us
on our wey: When he gave me a
blow sight here with I don't know
what, and said to dreep still or he
would be: with mew But, I pata ‘no:
attention to him, and Kept-saying: the:

words “Jesus, Mary and Joseph. Be |

with us on our way,” and ther guess
it was then that Shelby stepped up:

and another man came up witha straw |:

hat on, Isa 2
the house. .Mamitaa said tod.” that
there was three.or four. Do you have
your dress with’ you? Yes. . (Dress
worn at times dribie was committed

mouth, What else have you with
you? J have the shirt my unele. had

on that time, Produed it, please._
iC in (he sume condition as it- was? It
has not been washed! or nothing: done

wit it, What else do you have ‘with |.

you? It is them other: strips . what
they used-~what I found. “Maybe 1
do not find all, 6. ee te,
What was your (mother's: name ?
Mary Schrader, What is your uncle's
name? Bernard Weldum. What did
they do next? When they hat me all
tied down they carried me {irst dh the
house and then my uncle and then iny
mother. They took me to the sccond
room and laid me on my bed. ‘There
are two beds in that room, and: they
they put her on the other bed. ‘They
carried me in the room.and kept mé

there. Where did they place you in

the bedi | ‘They
ere and pit ber

that room? On
brought mamma: iv tt
on the other bed. ‘ orice

What’did they do then? ‘They beat
her--my mother---they hit her . and
beat her, What else did they do?: I
did not sev all that they did. Did you
hear anything? Toheard something;
some noises. What did they do to
you? They attack me. How many
of them? Swa... 0 0” igcbett

Do you know which ones? . Then] '

two first ones that come to our house.
Which (wo was that? Allen and
Shelby. Did they strike you. any?
They hit me outsido the house,, Did
they tie you in the house, Téwirds
the lust they they tied me to. my bed,
but not in the hoginningy .)) she ay

What did they do in the house?
They broke up everything and tore wp
everything, Deseribe to the. jury
what they did in the house. Did they
Jook in the drawers? They.’ -pullod
thent all out. and wpset 6 ythine

atd broke everything. ue How | long

|guess they was albtight! they didn't
, Then ae er

baele? ING) ee ee Bid

What was your eondition ? I had
fi blue cye that tT eould hardly see
through, Tow: about. your. mouth?
It was sore. An ur teeth? 1]

hurt much. Ee ot bana oa,

‘When did you next see thesé! mien ?
On: the! first” of, September in’ Robin-
sons Did you. identity’ them? I
identified two of them, “Shelby | and

Allen: ‘hein again up
until today ? No, not then, only, their
pictitres. wee

Ww. three of them ‘outside

[to throw b

Is}:

later brought mamma in there, but:

when , 3
Cane,

you, tulk.t
mother cate up
MINUS. VF
Shelby ands: én
Yes. About how
to them before: your.
wea

I don't knéws
uncle came:
One that they
you were. talkbig:

He before:
“Was the first)
there .. when |
Lot there ?
nis on ?

Jaid. hands:
mamma, ©
‘What. did. ti
her either by.
that she had:

: YOu mean. Dd yor
try to help. them. I © did: nothing,
They, took ug all. dn. ne short = time

'

all ‘three there whe
° WR!

threw, us. down, at firsts.”
threw you down: where wer:
respect ‘to th
on the groun
about ‘from

dé. tO. you. .
om. where

Maybe about

that: far.

of my undl

- Which. one th

house first? Jt was ime :
wa ere

‘When they

other
t you,

laid. you dawn
No: Vhoy 'é

(Continued on Back, Page)


Sih. 2___Ougober

ket

SHELBY AND ALLEN GUILTY -

Both Given Doath in Bleetric Chair
for Murder of Mrs, Schrader —
(Continued from Front Page)

you see them come? No.

Where were vou when you first saw
them? Ontside the house. How
many of them were there? Tr only
saw fwe, Did you go up where they
were? What was the first thing you
herd them say? It was about the
school house. i

Did you get a good look at those
fellows’? Vos. When did they Tiret
mistrent you in any way?) They drug
‘ine inside and threw me down. Which
one did that to you? Shelby did that
YF puess,
© Did he lie you up? When I was
down be tied me and dragged me In
through the door. J guess it was
some kind of wire be tied me with,
lid he Ge your hands? ¥es, he tied
my Hands aod tied me to a choir, Did
lhe tie you to the chair outside the
house? No, inside the house. How
did you get in the bouse? He drag~-
ged ome in. J was laid on my bed
when he dragged mein, He took me
in-the south room, There igs an out-
side deer to that room.

What did he do with you then?
He was busy looking around in the
house, What did they do to you when
they Cirst look you in there? Threw
me on the floor, Were your hands
tied Uhere ? How long did they Jeave
yeuoon the floor before they put you
on the chair? Ut may have been an
hour, Who drmgezed you into the
house? Goth of them, Who was tt
tied you to the chair’? Both of them,
Tastess. ‘They tied me wilh wire.

You said a while aga that some one
stepped on you meek; when was
Mat? ft don't know; i was before
they pra me on the chair. When did
they Peat yen? Was that while you
> No, when I was

were au the floor?
on the ehaiv. Y doen't imow which one
beat aie. Ub was one of them two (Tn-
Heating. Peould soo a little. Could
you positively say thal either of these
men situck vows T could net say
witch one.
You efnnot positively say that it
Iwre dh this nan or that one, or either
one of thea? No, Grere might have
een three. Maybe it was the ether
cone, VYiwo at them: Ued me to the
loheri One Hed one hand and one the
‘other, How many times do you tink
ieen have seen Sheihy? Outside the
‘Paoar, aud after ihat IT didn’t notice
hie be next tine you saw him
hatter whit happened over there, where
| vers tit? At Rebinson, What were
Lhe cirettimstanees there under which
you anaw him Pit you talk to him
over there? Wo, Some one cise did
the tatkine.
{ Hovw'did you identify him over there
[3s being the same person that you
beayw over Here at your bome? T saw
Ihis free nod verembered, Dido any
nue st that time suggest to you that
possibly, he was: the same man? Ne.
Did you ever see any one dlsa who
resembled him’? Na. Were there any
pprrticntar marks, about him that you
‘recognized him by? Yes, by his nose.
PYent understand, don't you, . Mv,
‘Weleiim, the nature of this case that
iis being tried here; that these men Arc
ibeins {ried for murder? I understand
‘that omneh, And yeu understand
that possibly on your evidence he may
he convieted of juurder?. Yes. And
you understand that the penalty for
Mnurder er be death? Yes, I know.
SUL you feel that you are positive in
your identification of this man? I
know tam. L understand that puch.
And you are positive in your roind
that (his is the man that was at your
place’ Fo am sure he was thera.
Are you positive of it? Yes, Did
you recognize Ubis man when you
vaine in the court room as one of the
nen who were aut your place that
night?) Yes. Did any one point him
out to yau Ubis raorning as the man
cho wis there? No, Did your niece
poiet him out to you? Yes J believe

so. Your viece pointed him out. to!

you in the court room this morning.

No. You had recognized him before

that time? Yes.

Mr. Weldana, when yeu went over
ig Robinson to sec these men, Was
there any one else jn the room where
ihey were? Yes. There were three
meu. Did they have handcuffs on
them? t don't know. Hlow. many
men were there in the room when you
looked at them? 'There were three
of them. Besides these men? Maybe
there were more of them. Were these
men standing to themselves? Yes,
‘off in a corner. Did any one point

ibeu out to you there? They showed

Ithem to me. Did you recognize them
‘nefore they were ponted out to you?

Yes. ‘

Mr. Weldam, do you know that
man?  (Undiecating “Sheriff Sowers,
seated at some distance. ) I believe
t don’t know: T see him before but 1
dowt know tim. Do you know him
how’ = (Calling Ma, Sowers closer).
L eant tell whe he is. Was he at
Rohingon with you? J don’t know,
Mr. Weldam, would you know Charlie
Sowers if you: weuld sec him? T be-

opines fetbintene

away. How many of them were
there? ‘There were two at first. What
two? Two men. :
Who were they? I did not know
them, Haye you found: out. ‘since
what their names are? Harry Shelby
and Allen. Do you. seé them here?
Yes sir, Where are they? Right
there, (indicating). * Can you walk]: Bo
over and point them out? | That one] April.
and that one (in a firm, determined| When:
voice). What bappened when they
first came? They asked me could
they stay all night at the school houge
—vamp until morning. Did they. talk
more? Yeux, Tell what they said and
what you said? Where were you
standing when they first came up?
Outside the house an the door step.
And who else? I was there by my-
self, and then. two men, Where was
your mother? She iwas out milking
and feeding the cow, ‘Where was
your uncle? He was out there too..

Yes: Wh

io uhead and tell what was sald|one man, say that he. shduld close ‘the.

by these men? (No ansiver.) Do
you remeniber whether they said any-
thing else? They asked whether they
could stay all night at the school night, or when y
house. What did you say? I told/ What was: her ‘condal
them I didn’t know. Did you. ask ‘plained: she Was 39. ¢
them anything? I asked them if they{. ‘Mr. Yelvington 5
were with a car, and they said no,|must tell what she.
they were hitch hiking. I asked them]: The Oourt: Sk
where they came from, and they said | saw. Oo a IRs ,
Missouri: there was another name,| Just tell what. youl
too, but, I can’t remember the othér| the way I saw her.) “Pr o the tim
nume: L asked them what their names] they came there what was the “sortdl-
was, and Shelby said he wns Henry|tion of her health? She was up; at
Smith, and gaid the other was Charlie}around as, Always.
Smith. Sine

‘Did your uncle and’ your mother |work. that night? .8
come up to the house? By and byland feeding the .cow’and © chickens. .
they came to mo and to the men by|The next day iv.
the house. What did they do?) Allen|of her health?
pointed a gun at me. He was the Did... yo
first one to point a gun. What didjface?
he say? Hoe pointed a revolver at me] face.
and I conimenced.to get. scared and! black and blue? :
commenced to say words “Jesus, Mas'y POverr wart ce yey:
and Joseph, be with .us on our way,” your uncle ? mf VES |
He suid 1 should be still and he would | Did) you. see his, ody: “t
do to me nothing, “Aud then ‘the } back? NO: ce yoo se
other than had a'gi, too. They noth | What was your eondition iJ chad
had guns, What happened next? {# blue eye that, v: gould handly see
Just in a minute Shelby pointed‘ a] through. How: about your: emouth ?
yun toa, but Allen was the firbt that. Tt wag sore, And our. teeth? 1
showed his gun, . :

a \euess they was a] “plight: they didn't
‘Tell what they did> next? , Then}hurt much. Ce ae
mamma came up and we was talicing | When did you next ste these: mien?
together. She was: hard vf hearing /On- the: first of, September in Robin-
aud could not understand, and T think fons, Did, you. idenity: them? “I
che thought they asked could they [identified two of the , Shelby and
stay all night at our house, and sha) Allen. Haye you seen them again up
eaid no. And then Allen took hold bf until today? . No, not: them, only their
ber. She hada fork in her hand, | pictiires. ee

and 1 don't Know whether ho look her|) Judge Yolvington, cross exemina-
hy the arm or took hold by the forki}tion: Jiow old are you? 46, gomg
she hind in her hand, 6nd he tried topon 47. Howermuel have you, gone to
throw her down. Je had his foot|schaoel? Seyeral years; Jdon't know.
nround this, way Ciidicating) trying |i went to St, Peter's. Gatbolic school
to throw ber down ‘Then, unéle|whem they had ‘school there.
thonght they wanted to Tut mamma About what time iarthe day
and thei they firowed - hin!) downy | Ww 5 a) W theie Men” who
Then they throwed me down phd tied
me with wire by the hands and fect.
What did they dato your. clothing? | was, it Ww
Then whea 1 was down, they tore, my long. did you t
top dress trang, iéand tote, strings {mother cau
from it and tied them over my mouth rdinutys. . WHO “Wwere
atid neck., ( Kept saying the | words Shelby and. Adien.
'Tosus, Mary, andJoseph, be with us] Yes... About how
on our wel. hen be gave me. a/to theur, before
plow right here with I don't Jenow jT don't know
what, and said to. keep still, or be | uncle came; A
would be with mes” But I patd no}one that. they atbacks
attention to him, and Kept-saying the+you were talking to then

an ane, it
y light. “About” how
it

FAR 3 eng before:
‘Who was the first
acked there... when |
> then aut there ?

eR LW ee

words ‘Jesus, Mary and. Joseph, be) Who was the first they fai Anas on ?
with us on our way,” and them T guess; They did not. attack ‘me outside the.
it was then that Shelby steppe Pup: house. 'Phey idid that jngide:.on my
abd another mat came up with a straw | bed. J gal HO Ww th hey |

hat on, I say three of them ‘outside aid hands: ei. o
the house. .Maiima’ said too. that}mamra. ;
there was three. or four. Do you have| What did te ade
vour dress with you? Yes. ; ‘(Dresé}her either by the
worn at time erime was committed | that she had. in-,
is produced in evidence,) Is: that the|to throw b dow
dress you had on that night ?\ Yes: }
Just open it up, fs it in the’ same
condition: ag, ft. was when they tore} thing to you
it off of you?.: J have done Mothing:}of tae thr Me
to it, What did they do next? They juncle,, ~Wheh: they ‘did: that’ any.
tore iny dress. off of me when: L was |niake dry effort to protect,
lying down and tore strips from it}don't know what you, mean,”
and tied them over my neck, and} try to ‘pelp. them. T° did. nothing,
mouth, What elso have you with They, took us all ia 6 short < time
you? I have the abbrt my vinele had |downe a ae eee (
on that time. Produce it, please.. Is} Were they. all throe there when they],
it in the same condition as it was? It}started to ‘drag you. dew’: “When.
has not been washed or nothing done: they hact vaealbdows, 0
with it, What else do you have with |ped out apd adother m,
you? It is them other: strips what|there were ‘only: two the
they used-~what I found. ‘Maybe Tithrew, us down, at ‘first,
do not find all, te de jee ek Ne ‘
What was yorr mother's: meme ?
Mary Schrader, What is your ‘uncle's
name? Bernard Weldam. What did
they do next? When they had me all
tied down they cartled me first dn the
house and then my:uncle and then my
mother. They took. me to, the accond
room and Jaid me on my. bed. There
are two beds in thot room, and they
later brought x9amma in there, but:
they put her on the other bed. ‘They
carried me in thé room ,and kept meé
there. Where did they place you in
that room? On the bedi. They
brought mamme iv there and, put her
on the other bea. ae
What-did they do then? ‘They pent
her--my mother---they hit her. and
beat her, What else did they do? oT
did not sev all that they did. Did you
hear anything? T-heard something; | kept.

utsid

tm =

ybe not
South

oF

[oo guess,
larg

Jknow.

some noises. What did they do tO} and. Jase}
eon? how attaeke me. How many land oné

(3/6)


3D fos. ek, 20,1993"

ee ee ee a

"AND ALLEN GOILTY
Both Given Death by Mlectric Chair
for Mardee of Mrs, Schrader
(Cand tinued from Page our)
your bed? Yes, When they tool me
from otalside they carried me right
awey in the second room in my bed.
What corner of the room wags your
bed in’ The northwest corner. Which
wey Gig Usat hed stance, cast and west,
or north oud south? North — and
Oct. Whirk way was the head of
the bed?  Nerth. Did they lay vou
down wilh your head to the bead of
the bod? Vea What did thes do
wlth respect to tyiae yeu when they
lnid you on tee bed? Vid they tie
yeu there? Poew bad wy hands and
feet tied ayrem they carried me dn,
duct they did not tie me otherwise
then, but by and by when they want-
ed fo po away they Lied ome with
stuips. One of them took them off
my mouth und neck. What idnd ef
an bed is if? A wwhoeden bed. How
hirh was the foot end of the hed?
About thet bigh T guess. How high
was the straw: tick off of the floor?

Alot so high,

Id they Jeave you by yourself
then? Wirst Twas by myself, but by
nod by thev tad mother in the other
bed iat that room,

liow Jong were you by your self? I
dort know. How lou do you think +
Tocannoat say that. Waos it ten min-
thes Tt wes more than that, Halt
an hour? Miybe more, I don’t know.
Were any of the men iu there while
you were there alone. Yes. They
eame in to look at everything. Did
they lave a light ony They put on
our light. What kind of a light was
it? A common Jittle kitehen light.
How long was it before they brought
nu light in there? T guess they had a
light va before they took me in there.
Wher wos the lamp selting? Ona
litile box iv the corner bw the clock.
Wirt part of the room? In-our bed-
roo. What part of the room: whieh
side? The southeast corner. Right
in the cormmer? It was close to the

SHAUGLB!

Corpor, .

flow far off the floer was the
fight’ About that high? When you
were Oore en the bed, could you sit

ap. No, bo was flat on my back,
Were your hands tied to the frame
af tne bed during the the first part
of the evening ? No. 'Thev were tied
lugether? Yes. Were your feet tied
to the bea? E was tied with wire,
but not to the bed. They tied me that
wav outside in the yard. Wag it
taken off while they were there? No,
Did you see them bring your puther
in to thet rvom? No. Mamaia was
in fhe other roo until they brought
her in omey room and prt her in the
otber bed, Which direction was that
bed ivour vetur bed? Ib is in the
wontheast earper, What direction is
Wat Cptienting) to you? Northeast,
{ yess

Fro 1 the, time that yor saw eur
nck out th thecyard; when was
next time that you saw her? if hat
saine nlgbt when the men’ went Away

when I ‘tore her loose on my uncle’s
hed T saw her first. What kind of
a Hebt was that. Miss Sehvader? Jt
was a kitehen lamp. What nunber
‘ve does it have? A mumber one I
euess. It is ove of the Uttle kind,
Was it turned up bright? Yes, it was
when they went away. It had paper
arranged towards (he window so that
il did not give very much light. You
say that they tore up the house, and
the things in the house? Yes.

Where did you find these things
ithe exhibits)? TI found them among
our Unings, bet they had upset every-
thing.

When you went over to Robinson,
explain to the Jury the circumstances
uuder which you. saw these. men;
where were they? jin Robinson, in
jail, What hind of a room were they
in? (€ dow't know what room it was.
If was close to the stairway. Was it
va darge room? Not so very; it was
a kind of a Ball; Tam not acquaint.
ed with that fait. How many people
were present when oy were in there ?,
There was more, I don't know how
many,

Where were these men when you
saw them, were they standing off to
thenselves? They were standing to
ane side in a row, them .two. and
another. Was there any one elge in
the room? Just these two and one
oiner, Did they have handcuffs on?
t don’t Imov. What kind of clothes
lid Mey have on? Can you describe
‘heir clothes? What kind of clothes
lid Shelby have on? Some kind of
nveater coat. Can you describe. any-

hing clse he had on? . A woolen hat.
Anything else? Do you. remémber
ihe color of the hat? It was a dark
olit, brown or greyish, color. How
did you recognize hin. as being the
one you had seen at your house? I

‘en hig face over there. and that
looked just like the face that was at
our house. Was there any thing pe-
euliar about the face that you recog-

Who else was present at Robingon?,
Otto Hippler's wife, Father | Roter-
nanny, Flomer Kasserman, Did you
know every oue that was in that room
except these two amen? No t didn't
know all that. wag. there,
tell anything else ahout: the clothing

you recognized him, except that he
had on bib oyeralls? "Did he have
a coat on? 1 think he did: aoaweater
coat like Shelby has on. Did he have
a coe ut on when hé wag at your house ?
Yes, he had something on. “Somet. bing | ¢
jn “its wey of a, coat, you, think.’
Yos, : ; :

After this, Mr. Kusserman began
laying the foundation for the admis-
sion of a confession obtained © from
Allon ut the Jasper county. Jail n
Newtoi.on the night of Scptentber 4 4,
Richird Johnson, captain of — polige,
Sheri? &. W. Ward, William Ryn;
chief deputy, and Williatn Newman, a
policeman, al] of Danville, tohl of ob-
trining Lhe. statement from Allen
without the use of any: torce — or
threats, and without promises, ‘Mey
repeated this to the jury after Judge
Jott bad riled the coifesstén admis-
sible so fur as it applled: | to” Allen
alone.

This ruling’ was mad6 after ‘Shelby
and Allen Had ‘taken the’ stand and
told of the repittation of the Danyille
police for third degree methods, some-
thing they. denied.

against him.

being at the scéne of the crime and in
helping to rok the Schrader home, but
said that he. saw no’ beating, all of
thig taking’ plade while: he was out
looking at the barn or In-other por-
tions of the house, He named: Shelby
and Warl Stark of Westville as: his
companions, but this last ortion. WAS
not allowed to go to the. jury,

In the agtual testimony: before: the
jury, the Danville officers’. testimony:
Was reirtoreed by that of . Sherift

Wa uk Ins,.

At the hight session, Tuekday even
ing, Mrs, Mary. Yager testified to see-
ing the contentd of the house, seater:
ed about and thrown over. the floor,
but objections by the defense prevent-
ed hor tellingy about the erlminal ‘ate
tacks on Anna fnd het mather, 9”

After Sheriff Sowers bad told af
the arrest of Allen and Harold Peck

Indiagia License No. 56-b4d.0n: "hnurs«
day, August 3, and the subsequent
arrest. of Shelby at Danville, ag de+
tailed at length in the Presa, at the
time, Dr J. W. TMutton was: oaed,
He stated that Mra.
Aneust. 31 from: concussion “of. the
brain. ag a reshlt of a skulli€raeture
from a blow, with a blunt instrument

that she bad both eyes blackened, a
broken arm, and a bad bruise on ber
face, besides ‘hi: al

rohit Har eats
v Brulseg.. all over her nee: }
ders, basidea ‘Apparent. té i
on the brenst. She and Miag- Schrad-
ér had been criminally. attacked Seve
oral times, he sald, 7

Mr. Weldam, he said, tiv: found iy
ing onthe bed with his fade, .breast

bruised, his. eyes practidally.. closed
from blows, and his fave swo len): Mr:
Woldam had told him, he added about}
being stepped: on, Miss: Schrader had.
her eyes. blacked, her face. and. lips
swollen and het teeth hurt An a result:
of blows.

City Marshal Hansel Brackett» told |

erg at D ies
Next: Kagsernion: " ge

Shelby and . Allen at Robinson, Sep:
tember ft; admitted. Ta. the, shsence

Miss Dorottiy Lamar,’ ‘stenogra phers,

testified to taling the statenmenta be-

fore court. adjourned, ia welt
Wedhésday ‘tnorning, Sh

Acting Chief L, M. ‘Taylor'df thé state.

Talley. of” » Mount, ” Carmel, . “O.
Wright of. Robinson, Sergeant: ey Ww,
Roth’ of» ‘Champaign, Sergeant ‘Tease!
Ghissom of Hffingham, and Jack, Cline
of: Marshall, highwey : policemen, - told,
of being Present when thé confessions
wero taken. All denied any force or
thresits were Used or: mrralabe: given,
except that Sergeant. Grissom told of
seeing an utinamed deputy. sheriff
slap Allen over the back of the head
with a: leather: strap: threé-elghts of:
an ielr Bat a le and five inéhes Jong.
No mark Was. made, D oe Allen
testified. ae he

Again in the absence: ot the jury,
Allen and Shelby took thé stand. The
latter told of belng compel ‘atand
for -twelvé hours | withod ood OF
water, while, being quéstioned, Als)
though, state witnesses sald jhe gat
down niost. of the time, “He also said

“You “can’t ¢

that Allen had or at Robinson when,

Allen alsa. said]:
they had promised not to “use. “thia}

in this statemont, Alen. ‘admitted |.

Sowers and’ Deputy Sherige ‘George

of Danville in Peck’s ear) bearing!

Sebi der " died ,

on the left side of her head. He soi].

and back black and blue,” his hands }-

of seeing the Peck car and’ tag prison

7; Ss, ry | i
to have. “the confessions made. iby:
of the fury. ‘Miss Mary, Magieton and}

Keller and, State's Attormey J. Stan-|
ley Bradbury: of © ‘Crawrord eonnty, |

highway. police, ‘Fire: Marshul ° Er Det

they. promised “not: to 1186 “thiase ‘con:

testit'y to. Shelby's adintaslond to ‘him

that he had accompanied Allen and
another ‘mkt to. the Schrader home

he. dented any. part it the tortur
ctimindy: athacies, ?
people rested.

utes Lo confer, rod on returning: te tic
court yoom announced - that they also
rested, No testimany of ony Kind was
given the jury on behalt of the. twe
defendants and neliher todk the stand

except in the absence’ of the’ jury.

Their whtdle'degense was based on the
desire to keep out-the state's evidence
vend «a denial of the: sufficiency of the
identification, " ;

whe ”™

The defense i ngked for fifteen alii :

[5/6 3