Cruz Control: Past Case Haunts Burris Appointment

burriscruz_rWhile I believe that the efforts in Illinois and Washington to block the Burris appointment are flagrant abuses of power, there is a legitimate reason to decry the choice. It is not due to the presumptively guilty man who appointed him but the clearly innocent man he wanted to kill: Rolando Cruz.

Cruz was a national scandal because of the tireless efforts of prosecutors to block efforts to prove his innocence of the rape and murder and of a 10-year-old girl in Naperville, Illinois in 1983.

In 1992, another man confessed to the crime and eventually the prosecutors agreed that he should be released. The problem was the Illinois Attorney General who was running for Governor at that time: Roland Burris. Despite a plea from his own deputy attorney general, Burris refused to release Cruz. Mary Brigid Kenney sent Burris a detailed memo on the reasons why she believed Cruz was innocent, not the least of which was the fact that Brian Dugan, a repeat sex offender and murderer, had confessed to the crime. Even the lead detective in the case believed Cruz was innocent. Burris would not even meet with Kenney.

To her credit, Deputy attorney general Kenney resigned in protest. In her resignation letter, Kenney claimed Burris had “seen fit to ignore the evidence in this case . . .I cannot sit idly by as this office continues to pursue the unjust prosecution of Rolando Cruz, I realized that I was being asked to help execute an innocent man.”

The prosecution of Cruz continued even after DNA evidence cleared him of the crime.

Of course, none of this have bearing on the fact that Burris is the legitimate successor to Obama. However, this position is compelled by the law not any sympathy for Burris, who had precious little for an innocent man.

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15 thoughts on “Cruz Control: Past Case Haunts Burris Appointment”

  1. This is another chilling example of a politician using the death penalty for political gain. Cruz had to die to burnish the would-be governor’s law enforcement bona fides. Unfortunately, Burris is a small-time player in that game. Both Bill Clinton and George W. Bush sent men to their deaths under dubious circumstances while governor, largely for political expediency. It’s a long tradition.

  2. Vince Treacy:

    If I’m the Judge you’ve given more than enough to “hang my hat on” and let the Senate at least investigate the appointment prior to seating him. Good work putting “right” back with “legal” in the same sentence in this case.

  3. Seamus, That is truly disturbing. I myself would never allow such overt egotism. Like any academic, I have my tomb carved with expressions belittling the work of other law professors. I shall rest in eternal bliss.

  4. seamus:

    “There was an item in the Chicago Sun-Times today revealing this guy has already had a crypt built for himself with his various political accomplishments carved all over it.”


    Wonder if he ever read Shelley’s poem “Ozymandias?” Bravo to your work btw. I had no idea…

  5. Seamus,
    I can’t forget the Cruz case. He was railroaded and Burris indeed try to fry him even though the evidence proved his innocence. Not only was Ryan involved, his asssistant, who is now the Dupage State Attorney was also involved and I am amazed he is still in office. In case any of the trolls are wondering, Both Ryan and Birkett are Republicans.

  6. The constitutional issue is not open and closed. Larry Tribe has weighed in and said that the Senate does not have to seat Burris. Over at Slate, Akhil Reed Amar and Josh Chafetz have explained how the Senate can stop Blogo, since it easily has the power to block the governor’s appointment of Roland Burris. OTOH, there is a lot of to and fro at Balkinization, where Sandy Levinson demurs, and at Volokh Conspiracy.

    The big guns have opened fire. Expect another convocation of the learned high priests of the shrine of Con Law before a Senate panel, under the glaring lights of C-SPAN!

    Seriously, there is absolutely no reason the Senate is bound by law to avoid doing the right thing, and to conduct a searching inquiry into the full background and circumstances of the appointment. The standard of innocence until proven guilty beyond a reasonable doubt is the standard for keeping out of jail, not the standard for public policy. There is hard, credible evidence on the tapes that Blago intended to put the Senate seat up for sale, more than enough evidence for a civil proceeding. Maybe he did not make the sale, but he made his intent clear.

    Blogo is still the governor, but the Senate is still the “Judge of the Elections, Returns and Qualifications of its own Members.”

    Many think that Powell is controlling, but others say it is distinguishable, because there was no question in that case that the Member had been validly elected. With Blago and Burris, there is a question whether Blago followed through on his stated intent to sell the seat. The appointment process could have been corrupted. We won’t know until the Senate investigates. Hold a hearing. Get Blago and Burris under oath and ask them if there was a quid pro quo, under penalty of perjury. Probe the candidate’s full record.

    Of course the Supreme Court is the final arbiter of constitutionality, but each branch has to make its own determination of constitutionality in the first instance. The Senate has a clear, textually defined duty to make a judgment on the returns and qualifications of this proposed member.

    Burris could sue, but remember that the Powell Court remanded the cause to the trial court for nothing more than a declaratory judgment and an action for back pay against the House Clerk. It did not enjoin the House to seat the Member, because he had been seated in the meantime. Does anyone seriously believe that the present Court will order an injunction to seat a Senator?

    Henry, Burris should be stopped from being a Senator because it is both right and legal.

  7. I’m a criminal defense attorney based in Chicago, so I’ve had a very low opinion of Burris since the Cruz afair several years ago. He’s the kind of political turd that seems to float to the top in Illinois. There was an item in the Chicago Sun-Times today revealing this guy has already had a crypt built for himself with his various political accomplishments carved all over it. No word on whether space was saved for “U.S. Senator”.

  8. “Legal” and “right” usually walk hand-in-hand but as here when you add a corrupt (allegedly) authority figure the whole process fails. It is true that the law works best among those who respect it. Outlaws tend to be impressed more by an opposing force than rational persuasion.

  9. mespo,

    The point spread between what is legal and what is right gets on the last good nerve on my body as well. This would seem like a good time to ratchet up public pressure via protest etc. go get Burris to withdrawl.

  10. In that press conference, Burris just looked the part of a dumb, political opportunist. Now his history has proved my impression mostly correct. Where do we find these guys? I agree the process is legal but if it produces clowns such as this, can it be right?

  11. There is an important fact left out of this discussion of Rolando Cruz. The man Burris defeated to win the Attorney General’s office was the DuPage County State’s Attorney Jim Ryan whose office prosecuted Cruz. Ryan later won the Attorney General’s office after Burris gave it up four years later to run for governor. Ryan’s handling of the Cruz case hurt him in his bid to become governor and was an issue in his attorney general’s race as well. Ryan lost the governor’s race in 2002 to Blagojevich. Ryan’s problem was further exacerbated by the focus Gov. George Ryan (no relation) had placed on Illinois death penalty cases when he imposed a moratorium on death penalty executions because of cases like Cruz’s and began a case by case review of them. Burris’ role in the Cruz case has been greatly exaggerated by the misleading Politico story.

  12. Also, I think we’ve seen this personality type somewhere before. Headstrong, firm in their own (pardon the pun) convictions. Unwilling to admit mistakes or acknowledge failings.

    Where have I seen this personality trait manifest itself before?

  13. This is one of those times where, even though I am a lawyer, I don’t care about the law. Burris is guilty of attempted murder (even if not in the legal sense) and he should be stopped from being a senator (whether or not doing so is legal). To attempt to kill someone to advance your political career is pure evil and so beyond the pale that nothing else matters.

  14. Wow, that is the ultimate nightmare scenario and one of the strongest arguments against the death penalty–in case you got the wrong guy.

    After seeing a number of Burris interviews, and this is just an opinion, he seems to be very much the opportunist. He seems like just the kind of guy who might do anything to get ahead, as unfair as it might be to speculate on such a trait (again I’m just basing these feelings on how he comes across). The monument that I’ve read about, commissioned by him in honor of himself doesn’t win much favor, either.

    I agree with Professor Turley that the power of appointing him rests with the governor, scandal and all, but I also stand by my earlier opinion that this thing just stinks.

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