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ultimately proved to be blameless in this case, but from that start grew the police theory that the crime had been intended to be a burglary, committed by a gang of Hispanics—even though no valuables were ever found missing from the Nicarico house. When Alex appeared, telling tales, he fit an existing preconception, a theory to which many officers became wedded the longer it persisted, making it virtually impossible for them to accept the fact that a white serial rapist, namely, Brian Dugan, was the actual culprit.
    If law enforcement professionals respond in this fashion to the emotionalism of grave crimes, it is foolhardy to expect anything better from the lay people who sit on juries. By the time of Alex’s third trial, in May 1991, the evidence against him was so scant that the DuPage County State’s Attorney’s Office actually sought an outside legal opinion to determine whether they had enough proof to get the case over the bare legal threshold required to ask a jury to decide the matter. By then, Dugan had admitted to the crime and DNA had excluded Alex as the rapist. John Sam, one of the lead detectives on the case, had quit the force because he believed DuPage had accused the wrong men, a point of view shared by the chief of police in Naperville, James Teal. And Marquez, who’d reported the I-held-her-down statement, had now disavowed his testimony.
    Instead, the state tried to offer the Marquez evidence through a police officer who’d been outside the room where Marquez and Hernandez met. The officer testified that he had no memory at all of the conversation. All he could do was recite the contents of a report he’d put together three weeks after the event, long after Marquez’s version of the encounter was known. The officer couldn’t understand Spanish, in which he acknowledged most of the conversation was conducted. He admitted being twelve feet from the door to the room and even at that didn’t know whether it was open or closed. He conceded that he’d destroyed his notes and that what he’d written down at the time wasn’t verbatim. And he had no memory of a single word Marquez had spoken to prompt the fragmentary responses from Alex contained in the police report. Later, the trial judge, John Nelligan, remarked, “It is impossible to determine the context…not to mention the obvious meaning of the language [the officer] recorded.”
    But even though a veteran trial judge couldn’t place any meaning on what he referred to as “the one statement that tied this Defendant indirectly to involvement in the death of Jeanine Nicarico,” the jury convicted. The case demonstrated to me the propensity of juries to turn the burden of proof against defendants accused of monstrous crimes. The notion of a ten-year-old girl being overpowered by an intruder and dragged from the safety of her parents’ home, sexually tortured, and then in the end beaten to death is so revolting that I used to explain Alex’s and Rolando’s convictions by saying that I thought Mother Teresa might have been in jeopardy if she were in the defendant’s seat. Jurors are unwilling to take the chance of releasing a monster into our midst, and thus will not always require proof beyond a reasonable doubt.
    An enduring problem is that the standards for review of juries’ fact-finding decisions in these highly emotional cases is the same as when a defendant is accused of stealing candy from a five-and-dime. Appellate courts are asked to assess whether any rational jury could have reached this conclusion, with the italics in place when the legal standard is stated. In so doing, courts must take all evidence “in the light most favorable to the verdict,” meaning that they must draw all inferences from the evidence and resolve all credibility questions in a way that supports the jury’s decision. An appellate judge’s own nagging doubts about an