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Long Time Coming

After Jovan Mosley was charged with a murder he says he didn’t commit, he spent nearly six years in Cook county jail just waiting for his day in court. His case highlights problems with our justice system

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In 2002, some 18 months after taking Mosley’s case, Korb took early retirement and ran for judge of the circuit court, legally changing his name to the Irish-sounding Edward K. Flanagan to increase his chances of winning. The ruse didn’t work. After losing the election, he took back the name Korb and opened up a solo law practice.

Mosley’s case went to James Fryman, another public defender in the multiple-defendant division. For the next three years, Fryman agreed to monthly continuances. Sometimes there were legitimate reasons for delay: twice, the case was assigned to another judge, and the original prosecutor got sick and eventually died. But most of the delays were granted for no compelling reason, with no explanation appearing in the record about the nature of the request or the name of the party making it.

Mosley waited longer than most defendants, says Fryman, because it’s difficult to get four defendants, their lawyers, and witnesses together in the same courtroom at the same time. During the pretrial phase, while the court considered motions to suppress evidence, the four cases were kept together. Eventually they were tried in pairs, a year apart, according to the order in which the motions had been decided.

Cook County public defender Edwin Burnette explains that delay can also be used strategically, especially in a multiple-defendant case like Mosley’s. In such a case, “nobody wants to go first,” says Burnette. “Being able to observe individuals who testify at the earlier trials gives a tactical advantage to individuals who are tried later.”

What’s a defendant to do? Because Mosley was not representing himself, his lawyers spoke for him. “How does he make a speedy-trial demand if his lawyer won’t do it for him?” asks Biebel. “I don’t know. Good question.”

Plea bargaining begins to look attractive after years in jail, so inmates may admit to things they didn’t do simply to end the suspense and avoid the risk of going to trial. A vast majority of Cook County’s felony cases, 86 percent, are disposed of by plea bargains. This is not an unusually high percentage, according to Friesen, but Cook County does have what he calls “undoubtedly the lowest rate of jury trials in the country.” That is offset by a relatively high rate of bench trials, but defendants who exercise their constitutional right to a jury trial must wait.

Those defendants who do ask for a jury trial risk a particularly severe sentence. “When you think of the right to a jury trial,” says Korb, “don’t forget the ‘jury tax.’ The judge will never say on the record, ‘You went to trial, so you’ll get your butt kicked’-that would be grounds for appeal-but if your client is found guilty, you can bet he won’t get the minimum. The common wisdom is that it adds more than 20 years to time for murder.”

The state’s attorney’s office would like to see the number of trials increase, according to Robert Milan, first assistant state’s attorney for Cook County. “This wasn’t a case that fell through the cracks,” he says about Mosley’s. “It was just one that came in prior to what we’re doing now.”

The pressure exerted on defendants to plea-bargain may come not from the prosecutor but from their own lawyers. “If you have a bad case,” says James Mullenix, a 24-year veteran of the public defender’s office who represented one of Mosley’s codefendants, “you need time to work on your guy. You try to convince him that pleading guilty is the best thing to do.”

Sometimes even defense lawyers find it hard to believe their own clients are not guilty. “The system functions with a pristine, paper presumption of innocence, but an in-practice assumption that everybody’s guilty,” says Bowman. “If you practice in the criminal area, you get accustomed to knowing that the person you are representing will probably be convicted at trial. You have no incentive to demand trial if you think you’re going to lose.” (All of Mosley’s codefendants were tried, one by a judge and two by juries. They were found guilty and sentenced to 32, 43, and 55 years, respectively, the longer sentences imposed-by the juries-on the two men who had used the bat.)

Fryman thought Mosley had a bad case, that the odds were 60 to 40 against him. When the state offered Mosley 18 years to plead guilty to armed robbery, Fryman urged him to consider it. “He had signed a confession,” Fryman says. “He was the state’s star witness against himself. The pictures of the victim were grotesque, like a special-effects movie. I told Jovan, when the jury saw those he’d be looking at a 30- or 40-year sentence.”

Mosley still refused to plead. “I was getting mad,” Mosley remembers. “Finally I lost it and asked Fryman, ‘Who is this state’s attorney? Is he better than you? Can you beat him?’ He was convinced I was guilty of something.”

Mosley may have been right about that. “He was a nice kid, quiet and polite,” Fryman says. “But I always thought there was something slick about him.”

A few days after meeting Mosley at the jail, Catharine O’Daniel got a phone call from his mother, Dolores, asking for help. O’Daniel knew Mosley’s family couldn’t afford to pay her, but she took the case anyway. “I liked him, and I hated the fact that the legal system had passed him by,” she says. “I called my sister and said, ‘What kind of person am I if I won’t help anyone except for money?’ I’d never taken a pro bono case before, but I’d never met a kid like Jovan before.”

O’Daniel, who worked her way through John Marshall Law School and was admitted to the Illinois bar in 1993, replaced Fryman on the case in the early part of 2005. She delved into the police and coroner’s reports, interviewed witnesses, and prepared for trial. She estimates her total time on the case to have been worth $100,000.

Trial began on November 9th of last year for both Mosley and one of his codefendants, in the same courtroom but with different juries. O’Daniel asked a friend, the lawyer and novelist Laura Caldwell, to assist at the trial. “I hadn’t tried a parking ticket before, let alone a murder,” says Caldwell, “but Jovan was such a kind, smart kid. Even if he had done the worst things anyone said he did, should he spend 25 years, or even six, in jail for two punches and a sip of pop?”

On the first day of the trial, Mosley, wearing a suit his mother had bought for him, took his seat at the defense table. He felt a wave of fear and nausea as the first group of potential jurors filed into the courtroom. “That made it real,” he says. “These were the people who were going to decide the rest of my life.” He and O’Daniel, along with the prosecutors, selected five men and seven women for the jury. Andrea Schultz, a retired phone-company manager, became the foreman.

The jury heard testimony by police detectives, eyewitnesses, the medical examiner, and a woman who had supervised Mosley’s work in a law office during the year he graduated from high school.

“I’m a conservative person,” says Schultz. “I generally side with law enforcement and believe they do everything right, so I worried about releasing another criminal. But Jovan’s demeanor was incredibly respectful. The hardest thing for most of us was the confession. But there was a young black man on the jury, Alfonzo Lewis, who helped us understand that. He asked us how many times had someone put a paper in front of us and said, Sign! Did we always read it? No. We tended to believe what we were told about it. That made us realize the same thing could have happened to Jovan.”

Significantly, Fettuccine Corleone-who had told police Mosley punched the victim-was not called to testify. “When we spoke to him a few weeks before trial,” says Andrew Varga, the assistant state’s attorney, “he told us the things he had written were things he heard on the street, not things he had seen Jovan do. He said he also was drunk that night.”

After four days, acting on O’Daniel’s advice, Mosley decided not to testify. The evidentiary phase of the trial ended. A deputy escorted Mosley behind the courtroom to the bullpen that holds prisoners during court appearances, to wait for his bus ride to jail. O’Daniel went back to see him. “I told him, ‘This is it, buddy. Tomorrow we’re going to get our answer,’” she says. “I intended to give him a pep talk. I was going to say, ‘No matter what happens, I’m so glad I met you.’ But I couldn’t say it. He teared up. I saw his big, puppy eyes, and then I teared up, too. We were standing there holding each other through the bars. We just stood there and cried.”

When she left the building, O’Daniel got into her car and called her mother. “If I lose this trial,” she said, “it will break my heart.” She couldn’t sleep, but she hadn’t been able to sleep all week.

The following morning, O’Daniel delivered her closing argument to the jury. She emphasized that none of the state’s witnesses had testified that Mosley hit Thomas. She pointed out that police were required to write up reports on interrogations, yet they had failed to produce any documentation detailing Mosley’s 29 hours of questioning.

After prosecutors Ethan Holland and James Lynch made their closing arguments, the jurors retired to deliberate. Four hours later, they returned to the courtroom and announced that they had reached a verdict. The defendant was asked to rise. O’Daniel and Caldwell each took an arm and braced Mosley as he stood between them. Mosley was shaking.

“We, the jury,” read the clerk, “find the defendant not guilty of armed robbery.” Tears began to run down Mosley’s cheeks-but then he realized he still faced the more serious charge. It felt like an hour before the clerk spoke again. He couldn’t wipe his face, because his lawyers wouldn’t let go of his arms. “I could hardly breathe because I was so nervous, and I could hardly move because I was being smashed,” he says, recalling how his lawyers nervously squeezed his arms.

“We, the jury,” the clerk announced, “find the defendant not guilty of murder.”

Mosley collapsed into a huddle with O’Daniel and Caldwell. At 4:25 p.m. on November 17, 2005, the tension of the trial and the angst of nearly six years in jail began to dissipate. Laughing, crying, Mosley looked up to find his mother’s face in the courtroom.

Months later, Mosley is sitting in a Loop coffee shop, smiling across a table at O’Daniel. In January he had enrolled at Richard J. Daley College and was recently invited to join the honors program. Working in a law firm, living in the home of his godmother, he says he feels no desire to return to his old neighborhood or to see his old friends. He has filed a civil suit against police officers involved in his interrogation.

He puts his palms together, folding his hands over his broad nose. A quiet smile lights his face. “You want to know how it feels to be out?” Mosley says. “Not the way I expected. I thought I’d be mad, but I’m not, at least so far. That first night, when I walked out of jail and got to California Street, I thought, wait, you’re supposed to look both ways. That street was huge. I felt like a midget in the big world.

“I still can’t get used to certain things. I wake up at 3:30 in the morning, like they made us do in jail. It feels strange to see so many people going wherever they want. I’m always looking around, watching everybody. In some ways, I feel very young. I went in a teenager, and now I’m 26. I feel like I missed some formative years. In other ways, I’m old, because I am patient.” He blows air between his folded palms. “Yes, am I patient.”

 >> Jovan’s Apple Pie

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