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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The DNA
After being photographed and fingerprinted, Kevin arrived at the Will County Adult Detention Center less than a mile from the sheriff's office, spent and sick with anxiety. The enormity of what had just happened, what he had just done, had not yet sunk in. But the sense of betrayal he felt at the hands of the detectives, especially when he learned that he would not, indeed, be "bonded out" to go home and straighten things out, was crushing. Not only was he not being charged with involuntary manslaughter, as he believed he'd been promised, but he was now facing first-degree murder, a charge that carried the possibility of the death penalty.
It had all happened so quickly-had seemed to make so much sense in the moment. Experts on interrogation and false confessions say that's not uncommon. They describe a codified series of emotional and intellectual manipulations designed to break down even the strongest of personalities. Northwestern University School of Law's Center on Wrongful Convictions reports that 60 percent of the 42 wrongful murder convictions since 1970 in Illinois have rested in whole or in part on false confessions. Kevin knew virtually nothing about such statistics or the theories of interrogation techniques. But it slowly dawned on him that the whole thing-the supposed sympathy of the detectives, the "friendship" of "Scott," the seemingly cordial questioning-had been a ruse. Now, just a handful of minutes after giving his statement, he sat behind a Plexiglas window with a phone in his hand, shaking his head and crying as his older brother, Chad, and Kathleen Zellner watched helplessly and offered what comfort they could.
Tall and striking, with dark brown shoulder-length hair, Zellner has made a name for herself by winning wrongful conviction cases. In one resolved in December 2001, she helped free three men who had falsely confessed to the 1986 murder and rape of a Rush University medical student named Lori Roscetti.
That morning in the Will County jail, Zellner watched the interaction between the two brothers closely. Chad recalls the moment vividly: "Kevin looked at me and said, ‘I didn't do this. They tricked me.' Immediately, we both started crying. I looked at him square in the eyes the whole time, and I knew my brother was not lying to me."
Today, Zellner says that what impressed her was Kevin's immediate denial of the crime. "It wasn't like there was any time to cook up a story," she says. "Within minutes he was sitting there saying he felt like they'd tricked him, they'd lied to him." Zellner says she also was struck by the unwavering belief in Kevin's innocence by the family, particularly Melissa. "I've had other families come in a situation like this and they've had some hesitancy-‘Well, he's always been kind of troubled but I don't think he'd do anything violent.' But this family's response-and I have to say when I met Kevin I understood-was that it isn't conceivable that someone like Kevin Fox could hurt anybody."
Shortly after the bond hearing, Tomczak, Will County Sheriff Paul Kaupas, and other authorities held a press conference outside the Wilmington police station. Kaupas acknowledged that the detectives had had no substantial new evidence when they called in Kevin. Instead, going on a "gut feeling," he said, they "rolled bones" in the hope they could elicit a confession. Among the questions the two men fielded were queries about whether politics influenced the timing of the interrogation. Absolutely not, Kaupas said. "We really tried to stay the course," he told reporters. "We didn't want to turn it into another JonBenet Ramsey case."
The people of Wilmington seemed to divide into two camps. Most of those who knew Kevin and the rest of the Fox family believed in his innocence. Many of them questioned the confession. Many other people assumed he was guilty. Some expressed bitter feelings of betrayal to reporters. "He watched everybody search for his child the whole day," one woman, a ten-year resident of Wilmington, told the Chicago Sun-Times. "I feel sad for the whole community that we were betrayed." Another resident told the paper, "It's what a lot of people suspected."
The Fox family expressed staunch support of Kevin. Melissa, describing her husband as a wonderful father, made it clear immediately that she believed he had been railroaded. A statement by Kevin himself saying he had been tricked into confessing was posted on a Web site three days after the interrogation.
With bond set at $25 million, the family decided, on Zellner's advice, not to try to get Kevin out, but to put their money toward clearing his name. "I hated leaving him there," Chad says. "But she was right."
Meanwhile, several statements by Tomczak, which later proved unfounded, cast another shadow over Kevin. The state's attorney was quoted in the Chicago Tribune on October 29th as saying "the evidence shows us that [Riley] was sexually abused during life." The claim triggered an investigation from a representative of the Illinois Department of Children and Family Services. More than six months later, DCFS reported finding no evidence to support the allegation. Riley's pediatrician has said there was never a hint of prior sexual abuse.
Also, Tomczak alleged during Kevin's initial hearing that "the autopsy report indicated [Riley] was alive and struggling when placed in the water." This gruesome detail helped form the basis for the death penalty charge. Later, Scott Denton, the forensic pathologist who performed the autopsy on Riley, signed an affidavit swearing that he had never talked to Tomczak and did not share his opinion about Riley's being alive when she was placed in the water.
On November 2nd, six days after Kevin's arrest, Glasgow defeated Tomczak 121,000 votes to 112,000 to win the state's attorney's race. Chad and Zellner viewed the change in office with a wary eye. Glasgow seemed like a fair man, but he had given no indication that he planned to drop charges against Kevin. Indeed, he had promised to press ahead with the death penalty.
With the possibility of a trial, Zellner began to reinvestigate the case. She initially hired Ernie Rizzo, the big, blustery, and controversial private eye. With his help, an investigative team began to re-enact each element of Kevin's statement to test it for plausibility. They first tested where Kevin said he had left the body-according to his confession, he had placed it in the water at the base of the Kahler Bridge, slipping once as he made his way down the muddy embankment. But when one of Zellner's assistants tried to do so with a 40-pound bag-the approximate weight of Riley at the time of the murder-the bag was blocked by debris. When the bag was thrown from the bridge, however, it twice floated to the spot where the body had been found.
Zellner also re-examined the bathroom door that had supposedly hit Riley. "That door was paper thin," Zellner says. "And you'd have to have hit her on the head with a hammer to get the effect" Kevin described in the interrogation. (Tomczak later accused Kevin of lying during his confession-concocting the story of the bathroom door to hide his guilt in molesting Riley.) Zellner also began looking into an element that seemed to have been forgotten: the DNA evidence taken from Riley.
Meanwhile, the family launched a public-relations counteroffensive against the barrage of media coverage suggesting Kevin's guilt. As they had wanted to do all along, the family began to offer a reward, for $20,000. Chad Fox took the lead, assuming the role of family spokesman and coordinating other family interviews, including an unequivocal expression of support by Melissa. For Chad, the fight to clear his kid brother's name became a crusade. "I knew he was innocent, and I knew my family was in for the fight of its life," he says.
***
Christmas passed with Kevin still in jail, then New Year's, and Kevin's 28th birthday on January 4th. He had been moved to protective custody, but that didn't protect him from threats on his life and threats of being raped. "People would walk by my cell and sit in front and look at me," he says. "I felt like a zoo animal."
On the outside, the stress of trying to free Kevin weighed heavily on the Fox family, especially Chad. He began having nightmares in which he would see Kevin strapped to a gurney, about to receive a lethal injection. "I felt as if I had aged five years since Kevin's arrest," he says.
At a hearing on January 28, 2005, Will County prosecutors turned over several police reports to Zellner and her defense team. As for the long-awaited DNA evidence originally taken from Riley, the news was not good for Kevin. As far as Glasgow knew, the little girl's rape kits had not contained sufficient genetic material to yield a usable profile. The FBI would be returning the DNA evidence within a week, he said.
What neither Zellner nor Glasgow apparently realized was that the FBI had not tested Riley's DNA. In fact, a day after the election, an order had come from the Will County Sheriff's Office halting any testing of DNA evidence in the Riley Fox murder. The order, it would later be revealed, had come from detective Ed Hayes.
Zellner returned to her office facing the daunting prospect of going to trial with a client who had confessed. "The only way to guarantee that Kevin Fox would not be executed was to find DNA that excluded him with 100-percent certainty," she says. And that she did not have.
But several days later, while reviewing the state crime lab's report, Zellner puzzled over the "inconclusive" finding for the presence of male saliva. She phoned a forensic scientist, who explained what that meant: the state crime lab simply didn't have the sophisticated capabilities that would be needed to test properly for the substance.
Buoyed over the finding, Zellner secured a court order to have the material tested by a private lab-Bode Technology Group in Virginia. The judge ordered that the genetic material be sent right away. After three weeks, however, the lab still had not received Riley's DNA. On April 5th, Zellner says, she learned why. The DNA had been sent to the state crime lab, not Virginia, and then returned to Joliet. The person behind the mixup, the lawsuit alleges, was Ed Hayes.
The delay enraged the family. Worse, when Bode finally got the DNA, the family was told testing would take two months, and that the chances of finding male saliva in Riley's DNA were slim because there was so little genetic material to test.
The weeks dragged by. Then, on June 7th, came the answer. The lab had found a man's saliva-just enough to extract a full DNA profile. The next day, Kevin Fox's DNA was compared with the sample. He was not a match, Bode reported. Not even close. When Zellner told Chad, the older brother laid his head down on a table and wept.
The Fox family wanted Kevin's immediate release. But Bode, insisting on following protocol, said they'd have to wait for the final report. At last, eight days later, Zellner stood near a fax machine in Glasgow's office. The lab had said the results would arrive around 6 p.m. The machine clicked on at a couple of minutes before the hour. Glasgow would later say he was "shocked" at the results. But he agreed with Zellner. Kevin would have to be freed.
***
Nine days later, Chad and Stacy packed more than 100 T-shirts bearing the words "Test Before Arrest" and "376 Days of a Killer on the Loose" in bold black lettering into a van that Zellner had rented for the occasion. Then they drove to the Will County courthouse, where Kevin had first been charged with murdering his daughter. On this day, however, the mood was festive. Outside the courtroom, more than 100 friends and family greeted them. Once the hearing was under way, Glasgow came right to the point: the DNA resulted in an "absolute exclusion of Kevin Fox as a donor," the prosecutor told the judge. "The people lack the probable cause to continue to hold him on these charges and would be unable to meet our burden of proof beyond a reasonable doubt." (The DNA was subsequently retested at a different laboratory, and the results again excluded Kevin.)
As Glasgow spoke, Kevin began to weep. By the time the state's attorney had finished, Kevin's shoulders were shaking. During his stay in jail he had lost more than 20 pounds. He had suffered threats and the ridicule of guards, according to his lawsuit. Now he was free. When Judge Dan Rozak dismissed the case, the courtroom exploded into applause and cheering. After a brief reunion with Melissa and Tyler, Kevin emerged from the jail with his arms raised in triumph and stood before a mob scene of cameras and well-wishers. What did he want to do on his first night out, he was asked. "Spend it with my wife and son," he said, something he had dreamed about "every day, every single day" since the ordeal had begun.
At a press conference, Glasgow stopped short of directly criticizing Tomczak, but the implication was clear: he thought the case had been mishandled, particularly when it came to the long delay in DNA testing. "So when you send something to the lab, you monitor it," the Tribune quoted Glasgow as saying. "The state's attorney's office at that point needs to get involved and say, ‘Wait a minute. We've got to get this to the laboratory so that we can process it quickly.'" (A spokesman said Glasgow wouldn't comment for this story because of the pending litigation.)
After Champagne and pizza at Zellner's office, Kevin, Melissa, and Tyler spent the evening at Chad and Stacy's apartment in Chicago, safely away from the media. That night, before turning in, Chad peeked into the guest bedroom, where Kevin, Melissa, and Tyler had already crashed. There he saw three pairs of feet poking out of the bottom of the bedcovers. "I don't think I've ever seen a more beautiful sight," he says.
Later, however, he would reflect on the bittersweet nature of the day. "My niece was kidnapped and murdered from her own home," he said, "-no answers from the cops for months, a deliberate railroading of my brother, my family nearly falls apart because of the sadness and stress, the terrible perception by the public of us defending Kevin. . . . Life will never be the same for any of us."
***
Pat Barry continues to defend the work of the Will County detectives. Nonetheless, since Kevin's release, a fresh group of investigators has taken over the case, though nothing promising has turned up.
Zellner filed the lawsuit on behalf of the Foxes in November 2004, in U.S. District Court in Chicago, claiming a violation of due process, malicious prosecution, false imprisonment, and defamation. The original defendants included Will County detectives Hayes, Swearengen, Guilfoyle, Ruettiger, and two others. Tomczak, now in private practice in Joliet, was added in July 2005. Also added were the polygraph examiner, Richard C. Williams, Pluth, Kaupas, and a jail guard. The defendants have sought to have the claim dismissed, arguing among other things that prosecutors are immune from such claims. In early May, U.S. District Judge John W. Darrah rejected those arguments with one exception (a claim against Sheriff Kaupas).
The Fox family has also pushed for the passage of "Riley's Law," a measure that would expedite DNA testing after child murders. In his 2007 budget, Illinois Governor Rod Blagojevich included a similar initiative that would add eight forensic scientists to the state's crime labs. In addition, the family has upped its reward to $100,000 for information leading to the arrest of Riley's killer. "We don't want to lose sight of one of the big tragedies-and major points-of this case," Zellner says, "the fact that, because the wrong man was pursued, a killer is still on the loose."
The town of Wilmington, struggling to heal, tends a small garden that honors Riley's memory. Set just off a playground around the corner from the house where she disappeared, the garden includes a statue of a young girl with butterflies alighting on her raised hands. Kevin and Melissa have visited it many times, as they have Riley's grave in Wilmington's Oakwood Cemetery. "It's hard," Kevin says. "You look at a stone with your daughter's picture, knowing that her body is in the dirt rather than in your arms. . . . But we feel closer to her when we go there."
The couple, however, have moved out of Wilmington. They live in Naperville now, a place they feel has given them a fresh start. "I used to love it," Kevin says of his hometown. "But I lost so much there. The only reason I go back now is to visit Riley's stone."
Despite the elimination of all charges against Kevin, some still wonder how a child could be abducted from under a father's nose. One study suggests that, though rare, it happens. From 1997 to 1999, more than 50,000 children in the United States were abducted by persons other than family members, according to a 2002 study funded by the U.S. Department of Justice. Eighteen of those children were stolen from the home.
Meanwhile, the mystery of what happened to Riley Fox remains. The few clues that might have pointed to other suspects were either discounted or ignored. Police have tested the DNA found in Riley against every male in the Fox family, as well as numerous people in the neighborhood, including several previously convicted sex offenders, with no luck.
As to the question of who would confess to a crime so heinous if they didn't do it, Steven Drizin, a leading authority on false confessions, says that is the least mysterious part of the story. The tactics that produced Kevin Fox's statement, he says, are a case study in how to get someone to railroad himself. "Before people simply say, ‘There's no way I would ever do that,' you have to put yourself in the position of someone like Kevin Fox," says Drizin, legal director of Northwestern University's Center on Wrongful Convictions. "You're overcome by grief. You're put into a cramped room and subjected to an unusually long interrogation. You're told there is overwhelming evidence against you, including a failed polygraph. You're offered a less serious offense and the chance to go home to your family and clear things up later in court. They simply broke him down psychologically to a point where he believed that the only way he was going to get this nightmare to stop was to confess. People wonder: who would do it? The answer is: far too many people."
***
In the sorrow-filled twilight of their little girl's death, in the aftermath of an ordeal that could have sent Kevin Fox to death row, Kevin and Melissa have searched for meaning in their anguish. On a recent April evening, however, their attentions are devoted to gentler undertakings: their new baby girl, Teagan, who was born on March 8th. Though the girl has Riley's apple cheeks and sweet disposition, neither parent would ever look on the child as a replacement for their lost daughter. Still, both wept when they learned Melissa was carrying a girl. "In a way, though, it's hard," Kevin admits. "Because I think to myself what Riley would be doing right now. She'd be a great big sister."
For a long time, the family could not bear to look at photos of Chad's wedding, of Kevin in his tuxedo with the single red rose, of Riley and Tyler sleeping under the table. Harder still was the family portrait with Riley in her princess dress and white satin slippers. On this night, however, leafing through a picture book, with Kevin holding Teagan, and Tyler peering over Melissa's shoulder, they can smile when they reach the photograph of the happy family they once were, when the biggest worries were a best man's toast and a little girl wanting to stand beside her daddy. And they turn the page.
Photography by Andreas Larsson
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