The Nightmare
Five months after three-year-old Riley Fox of Wilmington was brutally murdered, her father, Kevin, confessed following a long night with Will County detectives. He recanted almost immediately, but spent eight months in jail before DNA evidence led to his release. For the first time publicly, Kevin and his wife, Melissa, talk about their ordeal, an account of pain, mystery, and undying faith, wrapped around an enduring tragedy
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Photography: Courtesy of Kevin and Melissa Fox  |
| Riley atop Kevin's shoulders, where she loved to ride |
The Investigation
In the weeks that followed, Melissa and Kevin found the investigators to be supportive, even friendly. One detective, Scott Swearengen, played toss with Tyler and often dropped by for coffee at Curt and Dawn's house, where Kevin and Melissa had moved after Riley's murder. He would eventually become such a fixture that the family would refer to him simply as "Scott."
From his Joliet offices, Will County State's Attorney Jeffery Tomczak kept close tabs on the investigation's progress. If charges were to be filed, he would be the one to bring them. Tomczak, 44 at the time, had earned his law degree in Chicago, but settled in Will County with his wife, who today is a judge there. A father of two, he made a failed run for Congress in 1994, but in the 2000 race for Will County state's attorney, the Republican Tomczak beat the incumbent Democrat, James Glasgow.
Bad blood had existed between the men for years. The two had clashed on nearly everything, from elections to court cases to ethical conduct. Everything about the men, even their appearance, seemed at odds. Tomczak was bulky with thinning hair. Glasgow was trim with a blow-dried pompadour of silver. In that summer of Riley's disappearance, the men were again locked in a tight race against each other in a campaign that, the Chicago Tribune said, "was bound to get ugly" given the men's history.
Kevin Fox and his family paid little attention to the politics of the race. But as the summer wore on, they came to believe that the investigation was dragging. "We felt we could never get an answer on the progress of the case," Kevin says. "We'd ask, but they'd always say something like ‘We can't really discuss it.'" More often than not, the detectives would instead question Kevin and Melissa.
On one level, the couple could understand that the authorities might hold them-or at least Kevin-under suspicion. With the death of a child under these circumstances, the police look first to the family. Kevin, after all, had been the last person known to have seen Riley alive. But the parents believed they had cooperated in every way possible, including providing DNA samples, consenting to searches, and answering questions.
Other family members were less comfortable. They urged Kevin to hire an attorney. But after briefly talking to one lawyer, Kevin dismissed the idea. "I felt like I had nothing to hide," he says, and he worried that hiring an attorney might make him look guilty. Most important, Kevin says, he trusted the detectives' motives. "I was raised with the idea that authorities were good people and that they should be respected."
In late June, Kevin and Melissa consented to letting the authorities question Tyler. After all, the boy could be crucial in helping the parents find their daughter's killer. A videotape captured the session, conducted by a forensic interviewer named Mary Jane Pluth, who works for the Will County Children's Advocacy Center. On the tape, her manner suggests a strict schoolteacher. Pluth starts off with basic questions about where Tyler lives and what kind of sports he likes. The boy, who is extremely shy with strangers, answers reluctantly, with head shakes and nods. The questions quickly shift to what Kevin did or didn't do that night. "I don't know," Tyler says. "Did he leave the house?" Tyler shakes his head "no" several times. Once, he nods. Pluth pursues. "What did he do when he left? Did he take Riley somewhere?" she asks. The boy shakes his head. Pluth asks again. "No." "Where did he take Riley? You can tell me," she says. The boy weeps. His little chest heaves and his thin shoulders shake. He claws his sweatshirt hood over his head. At one point, he asks for his "mommy and daddy." Still, Pluth pursues her questioning.
After an hour, the boy draws into a fetal position. His blotchy face shines with tears. He looks away. He struggles to catch his breath between sobs. Finally, after more than an hour of interrogation, Pluth reaches for a box of tissues and thrusts it at Tyler. He shakes his head one final time. No.
By the end he has answered "no" approximately 178 times. He has also, on matters unrelated to the case, been in error in at least 13 instances, according to the Fox suit. The entire time, detective Edward Hayes, who would become the lead detective on the case, watches from the other side of a one-way mirror. His image hovers ghostlike in the frame. (Pluth did not return calls or an e-mail message.)
Later that same afternoon, detective Michael Guilfoyle took Tyler to the Fox family's home. This time there were no cameras or tape recorders. Instead, Guilfoyle later wrote up a summary of the interview. According to that report, Tyler became much more specific and descriptive. He recalled that his father "took Riley somewhere" during the night. When pressed, however, the boy seemed less sure. Guilfoyle reported that Tyler claimed he stood in the kitchen and saw his father using the clothes dryer after he returned. (A water usage report from that night suggests that the washing machine did not run.) By Guilfoyle's account, the boy also said things that seem to contradict known facts-that Kevin had dressed Riley in pajamas, for instance.
Until the night of Kevin's long interrogation several months later, authorities never told him and Melissa what Tyler allegedly had said. Guilfoyle's report did not surface until May, seven months after Kevin had been arrested. His lawyer, Kathleen Zellner, says that when she asked to see the handwritten notes from which the summary was drawn, Will County authorities told her that they were gone.
Also unbeknownst to Kevin and Melissa, the police were pursuing another lead that might point toward Kevin. The Foxes owned a dark blue Ford Escape. A tip came in claiming that video surveillance cameras at the town's Mobil station might have captured a car like that at four in the morning of Riley's disappearance. If the car turned out to be the Fox vehicle, Kevin's alibi that he was asleep all night would be seriously undermined. What's more, investigators would be able to place the car along the route that led to Forsythe Woods, where Riley's body had been found. Will County detectives spent considerable time and effort establishing that other local owners of dark Ford Escapes were not in sight of the video camera that morning. But Zellner, who has viewed a copy of the videotape, says it's too fuzzy to make out a license plate or even to positively identify any vehicle. The authorities have not mentioned the videotape in court, though they did bring it up during the interrogation before Kevin confessed. (Will County investigators refuse comment on the quality of the videotape.)
Around Wilmington, rumors began to swirl that the Foxes were using money donated to a "Riley fund" for extravagant vacations and luxury purchases. Melissa was seen getting a fancy haircut at the mall. She had traded in the Ford Escape for a new car. The couple had gone gambling in Las Vegas. They were vacationing in the Ozarks. Some questioned why a reward had never been offered. On October 11th, a report by Amy Jacobson, the tall blond reporter from Chicago's NBC 5, gave voice to the whispers. A "source," his face hidden behind a black blob, his voice disguised, repeated the rumors in Jacobson's "exclusive" interview. (Today, Jacobson tells Chicago that she later "felt awful" and regretted the report. But because so many people had called with similar observations about the Foxes' spending habits, the station decided it couldn't ignore the rumors.)
The next day, an article and editorial in the local paper, The Free Press Advocate, excoriated Jacobson and NBC 5 and told the family's account: Melissa had traded in the car because she couldn't bear how it reminded her of trips around town with Riley. The Las Vegas trip was to attend a friend's wedding and had been planned and paid for months before Riley's death. The trip to the Ozarks had been for another friend's wedding. And the Fox family had indeed suggested a reward be offered, only to be told by police it was unnecessary.
Nonetheless, the family members were deeply hurt by the TV report, as well as by the realization that people in town were gossiping about them. Chad Fox looked on the rumors as confirmation that Kevin-still not represented by a lawyer-was a suspect, perhaps the only suspect. In early October, Chad, a stockbroker, approached Zellner, who coincidentally worked across the hall from Chad in Naperville. She had been following the case in the media, and she urged Chad to get his brother to talk to her. Kevin again refused. "He kept saying, ‘The DNA will clear me,'" Chad says. "I felt helpless and frustrated."
***
Photography: Courtesy of Chad and Stacy Fox  |
| Riley and Kevin them together after Chad's wedding |
The Confession
Indeed, by late October of 2004 Kevin was the prime suspect. "Everything that [detectives] had was still pointing to this guy," says Will County Sheriff's spokesman Pat Barry. "There was nothing to eliminate him." Zellner insists that there was exculpatory evidence-in the so-called rape kits with material taken from Riley. But after the initial testing by the state crime lab, with its inconclusive finding on saliva, the DNA had been sent to the FBI lab in Quantico, Virginia, which had a nine-month backlog.
Meanwhile, Tomczak and Glasgow were said to be running neck and neck in the state's attorney's race. A break in the case could well tip the scales. For Tomczak it could also provide a diversion from a new headache that had suddenly surfaced. On October 21st, his father, Donald Tomczak, was arrested on a federal indictment in the Hired Truck scandal in Chicago. Among the allegations was that the father had made illegal contributions to his son's campaign. Glasgow seized on the charges, suggesting his opponent would be soft on crime. The Tribune quickly threw its editorial support to Glasgow, saying on October 22nd that he didn't "carry the burden of doubts about the ethical conduct of his campaign."
On October 25th, a little more than a week before the election, the four detectives working on the Riley Fox murder-Scott Swearengen, John Ruettiger, Michael Guilfoyle, and Edward Hayes-convened at the Will County sheriff's office in Joliet to discuss bringing Kevin in for an interrogation.
Pat Barry insists that Tomczak knew nothing of the meeting, and that, no matter how questionable the timing appears, politics had nothing to do with it. Zellner is skeptical. "For a state's attorney not to know of such a meeting of his detectives in such a high-profile case would be unheard of," she claims. Fox's lawsuit alleges that the meeting was conducted with Tomczak's support and consent.
In preparation for the possible interrogation, the detectives contacted several polygraph experts, including Fred Hunter, a Hinsdale-based examiner with more than 30,000 tests under his belt. None was available. (Hunter says today that even if he had been available, he would have refused to give the test on that occasion because Fox's interrogation had been so lengthy and confrontational.) Ultimately the detectives went with a far less experienced examiner-Richard C. Williams, a Cook County detective who, according to the Fox lawsuit, had conducted only about 90 tests.
On October 26th, Swearengen called Kevin Fox to say, by Kevin's account, that there was news about the case and that the Foxes should come to the police station that night. The timing was less than ideal for the couple. Kevin had been up since 4:30 that morning and had spent much of his day working at a painting job. He'd barely had time to grab a bite to eat all day. Still, he says, "we had waited so long. Months. This was our daughter, our little girl. We wanted to know if they had found out what had happened."
Kevin alerted his parents and Chad, who was immediately wary. "Something didn't feel right," Chad recalls. "I told my mom that they should not answer any questions. And if it became clear that there was no new information they should leave immediately."
The couple held hands as they made their way across the parking lot to the Will County sheriff's office in Joliet at about 7:30 that night. "We felt like we were finally going to find out what had happened," Kevin says. "We put all our faith in them. We thought, This is the night."
They were greeted at the door by Swearengen. He was cordial, they recall, but he also insisted that the two be separated. "I thought it was a little strange," Melissa says. "But Scott said not to worry, that they just needed to ask us a few questions before they told us whatever they wanted to tell us."
They took Kevin into another part of the building. Melissa, meanwhile, was led into a conference room where, Swearengen told her, detective Guilfoyle would be along shortly to ask a few questions. What more can they possibly want to know? she thought. And why did the door lock when he left the room?
***
Elsewhere in the building, in a small, cramped room with a low ceiling and a one-way mirror about the size of a cereal box, Kevin sat in a corner, facing a group of detectives, including an intense man with strawberry-blond hair and a flushed complexion: Ed Hayes. The questions started out easy, but quickly became pointed. Why did Kevin call the nonemergency line instead of 911 the morning of Riley's disappearance? Why would Tyler say Kevin had walked out during the night with Riley? Did he know his car had been spotted passing the Mobil station at four in the morning?
Kevin says he told the detectives that he didn't call 911 because he didn't want to panic prematurely. As for Tyler, Kevin had no idea his son had made such a statement-it was the first he'd heard of it. Maybe the boy thought Kevin had left when he stepped outside for a quick smoke. And he had no idea how his car wound up on a security tape. Again, this was the first he'd heard of it. When pressed about the car, Kevin recalls, he became exasperated and suggested sarcastically that someone must have snuck into his house, stolen his keys, taken the car, and returned it later. But if Kevin was joking, the police apparently didn't get it. They later portrayed his statement as an attempt to provide a possible alibi.
Kevin says Swearengen's tone changed abruptly. "We think you know more than you're telling us," Kevin says the detective told him. "We think you were involved." Kevin says he was incredulous. "Are you kidding me?" he recalls saying. "You guys are nuts!"
After three hours alone, Melissa grew furious. "I finally kicked the door really hard," she says. Within moments, Swearengen appeared and led her into an adjoining room. "There are some red flags that are making us look at Kevin," Melissa recalls the detective saying.
Melissa says that Swearengen told her about the videotape of the car and about Tyler's statement and then laid out an "accident" scenario for the death of Riley. By her account, Swearengen said that he suspected that Kevin had bumped Riley's head, perhaps while opening the bathroom door, and had panicked when it appeared she was dead. The detective surmised that Kevin had applied the duct tape and committed the sexual assault to make it look as if the little girl had been kidnapped.
Melissa reeled. The story seemed preposterous. Even if Kevin had accidentally hurt Riley, he would have tried to resuscitate her-he was certified in CPR. As for sexual abuse, "I'm not a stupid person," Melissa says. "If someone was abusing my child, I would have known about it. There would have been some sign. I knew it wasn't true."
And yet, "I'm sitting there thinking there's videotape of the car," she says. "And wondering, Why would they lie to me?" For the briefest of moments, "they were making me question myself. I hated that, but I had no idea what to believe."
By now, Melissa's brother had arrived at the jail, as had Kevin's father. Chad was on the phone to his father, desperately urging Kevin and Melissa to leave. According to the sheriff's summary of the interrogation, when Curt Fox told the detectives that he wanted them to stop questioning his son, Swearengen replied, "Kevin is 27 years old and he came to the investigation office voluntarily." Kevin claims he asked for an attorney and his father several times, but was given the same response: "[The detectives] said, ‘You're 27 years old. You don't need your father.'"
By midnight that night, Kevin says, the detectives had dropped all pretense of friendliness. "We know you killed your daughter," they said, according to the suit. The only way to dissuade them, he says they told him, would be to take a polygraph test.
At 12:20 a.m. on October 27th, according to the detectives' summary of events, detective Richard Williams arrived to administer the exam. Williams told Kevin that if he passed he would be cleared in his daughter's death, according to the lawsuit; if he failed, he would be charged with murder. (Williams refused to comment because of the pending litigation.)
The exam began at just before one in the morning and took a little over an hour. When it was over, Williams told Kevin that he had failed. (Today, Fox's legal team says that the results were at best unreliable.) As for the murder of Riley, "You did it," the lawsuit quotes Williams as saying. "It's all right to say you did it." Melissa, who was also told that Kevin had failed, demanded to see the results. She was led into Kevin's room where, she claims, Williams showed her a computer screen. "See all that red?" she quotes him as saying. "That's ‘failed.'"
At this point, Melissa says, she knew something wasn't right. She put her hand on Kevin's leg. "Everything's going to be OK," she told him. "I didn't do it, Melissa," he answered back, looking her in the eye. "I swear to God I didn't do it." Suddenly, she says, Ed Hayes "got right in my face. He yelled, ‘Your fucking husband killed your fucking daughter and he doesn't love you or her.'
"I started shaking and crying," she says. "I had never even met him before and he was just screaming in my face. I had never been treated like that before. I told him, ‘Don't you talk like that about my husband and family.'" From that moment, Melissa says, she never doubted Kevin. "They thought they had me convinced," she says. "When I reached out to Kevin and said, ‘I believe you,' I think they got pissed." (Through his attorney, Gerald Haberkorn, Hayes denied any allegations of impropriety. The sheriff's summary report portrays Melissa as expressing doubts about her husband's innocence.)
The detectives then took Kevin back to the interrogation room and resumed the questioning, according to the lawsuit. Hayes made Kevin watch as he filled out an arrest sheet for first-degree murder. Guilfoyle, meanwhile, began banging handcuffs on the table in front of Kevin. "You don't have much time," Hayes warned. "If I finish the sheet, you are being charged with first-degree murder with 30 years to life."
At one point, according to the lawsuit, Hayes leaned close and told Kevin that he "knew people" at the jail, "and would ‘make sure' that Kevin was ‘fucked' every day unless he told them what they wanted to hear." Ruettiger straddled Kevin's legs, pressing his testicles into Kevin's knees. He grabbed the back of Kevin's shirt and pulled his face close. "Your family doesn't love you," he shouted. "So just say you did it." Finally, Kevin claims in the suit, he was shown pictures of his dead daughter, her mouth still covered with duct tape, nude from the waist down, taken moments after she had been pulled from the creek. "Riley is in the room with you right now," the lawsuit quotes Guilfoyle as saying. "She is in pain and needs closure."
Today, in recalling this part of the interrogation, Kevin weeps. "I didn't know what had happened to her," he says. "When I saw the pictures . . . I don't even know how to describe it. When you see your daughter dead, with dirt and mud on her face . . . ." His voice trails off. "But the awful truth is," he says, "I wanted to see more. I wanted to see if I could find anything in those pictures that would help me figure out for myself what had happened, who had done this to my baby."
Kevin's account of the interrogation continues: Swearengen burst into the room, out of breath and saying he had just talked to Tomczak. "Hurry back. I can help this kid if he acts now," the detective quoted the state's attorney as saying. "I can make a deal for him."
Kevin says that Swearengen suggested the same "accident" scenario that he had proposed to Melissa nearly nine hours earlier. "It's now or never," the lawsuit claims the detective said. "Say it was an accident. Get your help from the State's Attorney so you can go home to your family. If you pass it up, you will spend your life in prison. If you say it was an accident, it's involuntary manslaughter with a three to five year sentence. You'll serve half. Go home now on bond."
Promising a suspect leniency to confess is forbidden under Illinois law, and the detectives have denied in court pleadings that they did so. Since the prelude to Kevin's confession was not videotaped-a law requiring interrogations be videotaped would not go into effect for several more months-the purported promise pits detectives' word against Kevin's.
It was now after six in the morning. Beyond the walls of the sheriff's building dawn was arriving. Kevin had been up for more than 24 hours and he'd had little to eat. He had been undergoing questioning for nearly 12 hours. The terms of the "offer" echoed in his head. He knew he was innocent, he says. But if he could get out on bond, he could straighten this mess out.
At 8:32 a.m., detectives turned on the video camera and began to tape Kevin's statement. According to the sheriff's summary, this is what he said: He came home at about 1:30 a.m., ate a snack, and then watched television, including an adult video. Around 2:15, he went to the bathroom and swung the door open quickly, striking Riley and knocking her down. The girl appeared "lifeless," and Kevin thought she was dead. Panicking, he scooped her up and carried her to his car, retrieving some duct tape from the back. According to the summary, Kevin thought of driving to his mother-in-law's house, or perhaps taking Riley to the hospital. Instead, he decided to make her death look like an abduction. He duct-taped his daughter's mouth and bound her wrists together with tape. He drove to a bridge over Forsythe Creek and then carried the girl down a muddy bank, slipping on the way down. Before putting the girl in the water, he inserted his finger inside her to make it look like she had been sexually assaulted. He then went home, cried for a while, and went to sleep.
A copy of the tape has not been released to the public, but Zellner has viewed it and she claims Kevin's manner is vague and halting. "They were putting words in his mouth," she claims. Rather than providing a running narrative, she says, Kevin often simply answered "yes" or "no" to the detectives' questions. Beyond that, she says, the details left several obvious questions unanswered. Why would a father with CPR training make no attempt to revive his daughter? Why was no duct tape found? If he slipped in the mud, why were his clothes not muddy? How could a lightweight bathroom door knock a little girl out so completely that she appeared dead? Why was no blood or other physical evidence found in the Ford Escape? And, most telling, how could detectives ignore that Kevin had not provided a single piece of information that only the killer would have known, such as the whereabouts of Riley's capri pants?
All told, Kevin was interrogated that night for more than 14 hours; only 20 minutes were taped. Just before he was booked and taken to jail, Kevin says, the last thing he heard was the sound of the detectives in the hallway, laughing and congratulating themselves.
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