GAS-CAN MYSTERY MAY FUEL RETRIAL IN ARSON CONVICTION


3-12-98





SPRINGFIELD --It's hard to say which was more troubling, the story a defense attorney told the Illinois Supreme Court here Tuesday morning or the response to the story from the Cook County state's attorney's office.





You be the justice: In early September 1995, appellate lawyers representing Death Row inmate Madison Hobley subpoenaed officials at the Chicago Police Department crime laboratory for all materials relating to fingerprints on evidence found at the scene of the 1987 South Side apartment fire in which Hobley's wife, 1-year-old son and five others died.





Hobley, now 36, was convicted in 1990 of murder and arson for spilling gasoline in the hallways of the building and putting a match to it before fleeing. His alleged motive was to kill his family so he could start a new life with a woman with whom he'd had an affair.





Among the curiosities in the case was how, at trial, a prosecution witness surprised everyone by revealing that a fingerprint test had been done on an empty gas can found in the building. The lab detected no prints on the can, but it was highly irregular that these results had not turned up in the routine discovery process before trial.





What else might not have turned up? As lawyers know, it never hurts to ask.





Shortly after the subpoena went out, as attorney Andrea Lyon told the state's high court, Chicago Police Detective Virgil Mikus sent instructions to the department's Evidence and Recovered Property Section to destroy a second empty gas can allegedly found at the fire scene.





The second can was part of a mysterious subcollection of evidence connected to the case. It had been sitting on storage shelves under a different name and identification number than the rest of the collected material--"a fake, bogus number no one knew about," Lyon charged. "It was a way of hiding evidence . . . they didn't like."





Had that second can been tested for prints? Might those prints or other details about the can have pointed to, say, Hobley's former girlfriend, whom Hobley has long said he suspects might actually have set the fire? Or to someone else altogether?





The case against Hobley, then an employed medical technician with no criminal convictions on his record--is far from overwhelming. It's based primarily on the testimony of two witnesses who said they saw him buying a can of gas shortly before the fire and the testimony of police from Area 2--a station where the city now admits suspects were routinely tortured--that Hobley confessed his guilt to them. Hobley maintains he, too, was tortured by interrogators.





The destruction of the physical evidence in a death penalty case before the final resolution of the case is not department practice, said a police spokeswoman and an ERPS employee I spoke to Wednesday.





So why, 8 years and 10 months after the fatal fire but less than one month after the new subpoena was issued, did arson task force investigator Virgil Mikus order that second can destroyed?





Hobley's attorneys wanted to put Mikus under oath and ask him that question once they learned what he had done from department sources. Cook County Judge Dennis Porter refused the request without explanation, and did not return my request for an explanation Wednesday. Mikus, now retired and living in southwest suburban Frankfort, didn't return calls Wednesday.





Arguing in rebuttal, Cook County Assistant State's Atty. James Veldman told the Illinois Supreme Court that Mikus' order of destruction so quickly following the subpoena was "simply a coincidence in time. . . . There really wasn't any reason to hold on to it any longer. I don't know if this was a time in which they were cleaning house. I don't honestly know."





Lyon argued in return that the hidden and destroyed evidence along with the state's continuing nonchalance about it and the pattern of torture at Area 2 suggest that the investigation and prosecution were not done in good faith and that Madison Hobley deserves a new trial.





The real justices will offer their opinion in a few months. Meanwhile, what do you think?