Old case sheds new light on the death penalty debate

A man posing as a neighbor needing to borrow a plunger raped a 29-year-old woman in her living room at the Maple Tree Apartments complex in west suburban Woodridge.

Police quickly arrested and charged Marcus Lyons, also 29, and a resident of the complex. The victim identified Lyons in a police lineup and testified at trial that she had no doubt he was her assailant.

Lyons, a U.S. Navy reservist with no criminal record, was convicted and spent three years in prison. But after his release he continued to fight to clear his name. Ultimately, a new round of DNA testing not only excluded him as the source of genetic material found on the victim’s undergarments, but implicated an employee at a nearby gas station whose girlfriend lived at the apartment complex.

That man was in the state’s DNA database due to his participation in an unrelated crime. But he will not be charged because the rape took place 23 years ago — in November of 1987 — and the statute of limitations on sexual assault charges has expired.

Why bring this up now? Because it illustrates three grave flaws in the justice system that ought to give pause to Illinois lawmakers who are planning to vote to keep the death penalty on the books when pending abolition legislation comes up in the General Assembly.


First, it shows the fallibility of eyewitness testimony, evidence that jurors often find overwhelmingly persuasive. This was no shadowy figure momentarily glimpsed in silhouette. The victim testified she saw Marcus Lyons in well-lighted conditions from “a foot, foot and a half away” before the attack.

Second, it shows how police and prosecutors can botch a relatively straightforward case. Here, the victim got dressed immediately after her assailant fled in order to secure her apartment and gather her thoughts. She then got undressed to shower and vigorously scrub herself clean, after which she put on fresh underwear for a trip to the hospital.

Police inventoried both pairs of underwear but, for reasons that are still unclear, didn’t submit for lab testing the post-rape undergarments that many years later proved Lyons’ innocence. Instead, they sent to the lab only the post-shower underwear, which, predictably, yielded no evidence.

Yet DuPage County prosecutors introduced only the untested, post-rape underwear as trial exhibit. Then they argued that “every single piece of evidence corroborates (the victim), down to the panties she had on after this guy (raped her).”

Either the prosecutors were deliberately misleading the jury on this key point or had been misled themselves by bad or incomplete information given to them by the police.

A close reading of the surviving portions of the trial transcripts (some passages were unrecoverable due to technological glitches) as well as the depositions from the civil suit Marcus Lyons is pursuing against Woodridge suggests that the prosecutors acted in good faith in 1987.

Birkett joe for left sideThe prosecutors — Kathryn Creswell, now the presiding judge of the felony division in DuPage County Circuit Court, and Joseph Birkett (left), who will be stepping down this month as the DuPage County state’s attorney to take a seat on the state appellate court — didn’t dwell on the underwear in presenting their case. Nor did they object when Lyons’ attorney argued in closing, “One might expect to find something in the crotch of the panties. Nothing was there.”

Which leads to the third reason I bring up this story: It shows the difficulty prosecutors have admitting mistakes or criticizing shabby police work that results in gross miscarriages of justice.

Creswell and Birkett declined through spokesmen to comment on this case, in which they are not parties because prosecutors are officially immune from such litigation.

But in the transcripts of his two lengthy depositions in this case, Birkett at first exhibited great confusion himself about which pair of underwear had been tested and which hadn’t, then, in what looked like an effort to cover for the bungling cops and protect Woodridge, insisted, “There was no confusion (in the courtroom) in terms of what was tested or what was not tested.”Read extensive excerpts from those depositions and other key passages from the case below.

I’ve had my differences with Birkett over the years, but even I don’t believe he would have tried to convict a man of rape if he even so much as suspected that a key piece of evidence hadn’t been tested.

So I’m left to conclude that Birkett, like too many other men and women in law enforcement, has a chronic inability to confess simple human error, assess blame honestly when things go wrong and, therefore, learn from mistakes.

It’s an inability that, for defendants, can prove to be a fatal flaw.


All the material that follows was provided by attorneys Jon Loevy and Aaron Mandel of the Chicago firm Loevy & Loevy, which represents Marcus Lyons in his civil case.  The Wheaton lawfirm of DeAno and Scarry, which represents Woodridge, did not respond to requests for comment, but some of their court filings are linkedat the bottom.

Relevant testimony, at the 1987 trial, of the victim regarding the underwear:

Page 86-88 cross examination by defense attorney Jan Poris.

Q: After (your attacker) left, did you remain on the floor, then, for a while?

Victim: As soon as he was gone is when I put my clothing back on.

Q:  What all did you put on?

Victim: My bra, my underwear and my robe…

Q;  Did you pants feel wet, your underpants?

Victim:  Yes

Q: After you moved the cedar chest in front of the door (to the apartment, to barricade it against the attacker returning), you then took a shower, is that correct?

Victim: Yes, that’s correct….

Q. When you got out of that shower, do you feel that you had effectively removed any trace of any semen from you?

Victim: Yes, I had…

Q:  After you finished your shower, did you put the same outfit on?

Victim: No.

Q: Where did you put it?

Victim: I took my time. Went into the bedroom. I had another robe which I put on.

Q: Did you put anything else underneath the robe?

Victim: Underpants.


From the trial testimony of Woodridge Police Det. James Grady:

Page 347, from the direct examination  by assistant state’s attorney Joseph Birkett:

Birkett: With regard to the blood and saliva of the defendant, to your knowledge, was there anything retrieved from the victim or the panties of the victim that could have been matched to (the defendant)?

Grady:  No , there was not.

Page 350 – cross examination by defense attorney Thomas Freeman

Q: Was it your testimony that among all of the evidence, the physical evidence received in this case, the panties, the stuff collected by the evidence technician at the scene, the stuff that you got in the hospital, that none of that was comparable to anything, to anyone?

Grady: The evidence that I testified to was that the test done on (the victim), the blood test and the slides for spermatozoa, came back negative, and therefore, no defendant submitting to blood could be analyzed because there is no positive test done on the victim.

Q: And was it also your testimony on redirect examination just a moment ago by Mr. Birkett that, as a matter of fact, the panties also came back with no detectable anything on them that could be compared to anybody in the world?

Birkett: Objection, Judge. That is not the testimony.

Judge Ronald Mehling: He may answer. Overruled.

Grady: According to the report by (lab technician) Christine Sahs, there was insufficient evidence, not evidence but  insufficient material in the inside of the panties where the one test was done and it came back negative. There was not enough fluid that had gone in the  crotch of the woman’s panties to conduct further tests.

From the closing arguments:

Defense attorney Thomas Freeman:  We asked what else was taken (by police investigators) from her apartment. Well, (the victim’s) clothing was taken. (The victim’s) panties were taken. (The victim) told us that when (the rapist) was through, he pulled out of her. I think from your experiences in life, one might expect expect to find something in the crotch of the panties. Nothing was there…..She didn’t launder them. She took them in, took it off and took her shower.

Prosecutor Joe Birkett:  Every single piece of evidence in this case corroborates her. Down to the panties she had on after this guy forced his penis in her

From the first deposition of Joseph Birkett June 10, 2009:

Birkett:   There was a, I think a routine submission of the panties.  I don’t know that, I would have to look  at the lab results. But there were, my recollection was there was no semen found on the panties.  That  was explained by the fact that the victim was not  wearing the panties at the time of the assault, at the time of the rape.  In addition to that, after the rape the items  were collected, so that was not a surprise.

Q   The panties that were collected, were they  collected at the scene of the rape?

Birkett:   Yes, that’s my understanding.

Q   Was it your understanding that there was or there was not evidence of semen that was collected at  the scene of the rape?

Birkett:  I don’t believe there was any.  My recollection is that….the rapist ejaculated on her and wiped off.  Walked into the kitchen. Maybe it was, maybe he wiped off after he went to the  kitchen.  I forget the exact scenario.  He wiped off  and then (the victim) showered and …my  recollection is that she washed everything off.  So there was no semen collected.  There was  none…..

Q   Did you, in your review, did you see any  evidence that you felt either needed to be tested  that wasn’t or retested that wasn’t?

Birkett: At that time?

Q   At that time.

Birkett:  No.

Q.  Do you have any recollection of why (the victim’s) bra was not tested at the time of the  criminal trial?

Birkett: I don’t know if it was, I have no independent  recollection as to whether or not it was examined or  not.  I know the panties were, but I know the reason why a submission might not have been made was because the bra was not on her body on the time and neither  were the panties. When the assault began or when it was completed, she was on the floor.  And the attack took place while she was naked. She had no clothing on. The panties were submitted. To this day I don’t recall why a decision to submit the panties or not submit the panties would really have affected the case. …I recall …. requesting to have the panties tested, I said let’s just get everything checked.


From the second deposition of Joseph Birkett, March 17, 2010.

It’s important to note that, between the time of the first deposition and the time of the second deposition, attorneys for Marcus Lyons discovered the previously unknown/unremembered fact that the post-rape underwear had not, in fact, been tested in 1987, only the post-shower (also called “hospital”) underwear had been tested. This accounts for the relentless and in some places repetitive nature of the questioning below.

Q.  (page 14) When (during closing arguments at the criminal  trial) you said, “..down to the panties that she had on after this guy forced his penis in her…” Which pair of panties?

Birkett: That’s the panties that she had on when she went to the hospital.

Q. What about the pair of panties that were found at the scene?

Birkett: What about them?

Q. Were you referring to those pair of panties?

Birkett: No.

Q. Why weren’t you referring to those pair of panties?

Birkett:  Well, she didn’t have her panties on when she was — and she didn’t put them on.  She was —  when she was raped, the panties and bra, my  understanding is, at least my recollection, is that  the panties and bra that she had on were still on the floor in the vicinity of where she was raped, and  those were collected but not sent to the lab because the likelihood is not that they’re going to have any stains on them or any — at that time, as you’ll recall — you may not recall this. I don’t know if you’re familiar with  the advances that have been made in DNA testing, but  the likelihood of getting anything from the panties or  bra at that time was nil.  So the panties that were submitted and the clothing were submitted were the clothing that were taken at the — at the hospital. That’s my understanding.

Q:  When you were talking to the jury —

Birkett:  I’m referring to the panties that she had on.  That’s my recollection.

Q:  That was the panties she put on after she had showered?

Birkett:   Right.

Q. And who made the decision not to test the panties that she put on immediately after having been raped?

Birkett:. You know, obviously I don’t know. I you before I did not – I was not involved in the initial stages of the case; but that ordinarily is a decision that’s made in consultation with law enforcement, the lab, police officers and sometimes prosecutors will either request additional items to be tested. IF you’re not satisfied that everything that reasonably should be tested has not been tested, sometimes a state’s attorney will make a request.  And apparently no such request was made, and I think that was reasonable under the circumstances based upon(the victim’s) statement that the rapist removed the panties and bra before the act took place before the – before the rape.

Q. Is it also true that (the victim) said she put on pair of panties immediately after the rape?

Birkett: I don’t recall her saying that. I recall she got up, she showered before the police arrived, she got, obviously, dressed to go to the hospital, put panties on, and that’ the panties you’re going to take because if there’s going to be semen stain or if there’s going to be some – some biological evidence in her and it’s going to leak into her panties, it’s going to be the panties she puts on after the assault and not the ones that are taken off before. So if you – you asked me the question I would say this, again, I don’t know what the conversations were, but they had some  very good prosecutors working on this case. John Kennedy who screed it, Kathryn Creswell who I tried the case with, obviously the chief of the criminal division at the time, Brian Telander, was involved in the screening decision. And they would have been familiar with – I mean, this is my understanding – what items were sent to the lab and who made the request  And I think the request to have the items taken from her at the hospital tested was a reasonable request at the time given the technology that’ now available. Now, today, would you do both? You would do the panties and the bra from the scene as well as the items that are taken off of her because technology’s improved and there’s a chance of getting – now with the sensitive tests that are now available, there’s a chance of getting even touch DNA off of a pair of panties. So you would submit both today. But at that time, I probably would have gone along with the decision not to  submit anything else. The lab it, as you’ll recall, inundated with evicine and they like to test what it reasonably likely to reveal a result.

Q.. If I understand you correctly you would recommend sending to the lab the panties that she put on after she had taken a shower, but not to send the panties that she put on immediately after she had been raped?

Birkett: No…. Well, there’s  no — there was no indication that she put her panties back on after the rape.

Q. (Reads from the trial transcript –see above– in which (the victim) is quoted, “As soon as he was gone is when I put my clothing back on….my bra, my underwear, and my robe.”)…. Was that the first time that you learned that (the victim) had put underwear on after she  had been raped but before she had taken the shower?

Birkett: I don’t recall if that is or not.  I have to look at the police reports.  My understanding was that the bra and panties were collected from the area where she was  raped, that she had taken a shower, then she dressed.

Q. Prior to the time of trial, did the police  tell you that she had put on her panties before she had taken a shower?

Birkett:    Again, I don’t recall whether or not  anybody told me that.

Q:    If you had been aware of the fact that she had put on a pair of panties right after the rape but prior to the time she took a shower, would you have suggested that that pair of panties be sent to the lab in the same manner that went to the lab after she had taken a shower?

Birkett: Yes.

Q. Why would you have?

Birkett: Because if that is the – if that were the case, then there’s a chance that you’re going to get a stain from whatever clothing she put on immediately after the rape. Same thing – same reason why I told you earlier that you’re going to try to submit whatever is likely to produce some helpful forensic evidence.

Q. (page 21) You had a  pair of panties that was used at the trial; is that correct?

Birkett:. I – yes, a pair of panties that was – right.

Q:  And that was a pair that had gone to the laboratory, correct?

Birkett: You know, the pair – my recollection is that the pair that was introduced at the trial was the pair that was found at the crime scene that he had removed, and the bra. That’s my recollection…..I mean, maybe I’m – I might be wrong, but I believe that’s my recollection. I don’t believe that the pair that was sent to the lab was introduced. I don’t recall. But I believe there is at least a pair that was introduced at trial.

Q. It’s your understanding that the pair that went to the crime lab was the pair from the crime scene, is that correct?

Birkett: No. it’s the pair that was taken from her at the lab – or at the hospital. That’s my understanding. The one’s that were sent to the lab were takenf rom her at the hospital. That’s my understanding.

Q When you indicated to the jury that all of the evidence corroborated (the victim’s)  story …why did you make no reference to the panties that were found at the crime scene?

Birkett: You know, you’re talking about taking an argument and asking me why I said something back at that time. I – you now, I was referring to an abundance of evidence against him in terms of the identification that was made and also corroboration from the police officers who investigated the case, the assistant state’s attorney who interviewed him. That’s what I was referring to.  The panties that obviously I was referring to is the panties collected at the hospital.

Q. And why weren’t you referring to the panties at the crime scene?

Birkett: Well, they didn’t produce anything. I mean, there was – at that point in time, there was no – my understanding was there – there was no reason to mention them.

Q:  Even though she had put them on immediately after the rape?

Birkett:. I – you know, you’re asking me questions not having read the entire report. I do not believe I knew that prior to trial, but, again, the –when I was talking about the evidence of his identification as the rapist and the fact that three was no semen stains at the  — on the panties that were recovered at the hospital corroborates her as well….She showered, he wiped her off, he didn’t ejaculate in her, or at least that was her understanding of it. He grabbed the towel, wiped himself off, wiped her off, and left with the towel. …

Q.  The panties that were introduced as an exhibit, was it your understanding that those were the panties that had been tested?

Birkett: No.

Q.  But is it your testimony, then, that you submitted a pair of underpants to the jury that you knew had not been tested by the laboratory? Is that the case?

Birkett: Well, these were the panties and bra that the rapist had taken off of her and those were introduced at the trial. That’s my understanding.

Q And you told the jury that they had never been tested at the laboratory, they have been tested at the laboratory, or –?

Birkett: No.

Q. You were silent on that?

Birkett: There was no confusion in terms of what was tested or what was not tested.

Q. Did you tell the jury that that pair of panties had been tested at the laboratory?

Birkett: (page 25) No. The pair of panties that were found – that were taken off of her, no . I   don’t believe – I don’t’ believe we did say that to the jury….. The panties that were tested were the  panties taken from (the victim) at the hospital…..

Q.  (page 29)  What, if anything, were you told about the  panties since the last deposition?

Birkett:   That (the actual rapist), that there has been a positive DNA test match not only on the bra but now on  the panties.

Q.   What else, if anything, did you learn about any issue concerning the panties?

Birkett:   That those panties were not submitted to  the lab — I believe they were not the panties that were submitted to the lab after the rape.

Q.   Which panties were not the panties?

Birkett:  The panties that were recovered from the apartment had not been submitted to the lab, which I  think I indicated before I was — I believe I was  aware of that when we tried the case. ….

Q.  And at any time either in your closing argument or at any time did you tell the jury those panties had never been sent out for testing?

Birkett:    Again, I don’t — you know, I don’t recall  ever suggesting that they had been sent out for  testing.

Q.   And when you made your closing or rebuttal  argument to the effect that the panties, the lab tests of the panties confirmed what (the victim) said, did you  tell the jury that those were the panties that had never been found at the apartment but were found at the hospital?

Birkett:  Whatever I told the jury is what I talked  to the jury about…… I know what I was talking about (during my closing argument)  I was talking about the panties.  There was  trace amounts of blood on the panties but no semen, so  I’m talking about the panties that were recovered at the hospital.  It’s absolutely crystal clear from this  if you read the trial transcript and you read — I’m  not referring to the panties from the — I’m not  referring to the panties from the — from the house.

Q: (page 34)  Is there at any time in the course of the  trial that there was ever any reference to a pair of  panties that were found at the hospital as opposed to  the pair of panties for which there was testimony that were found at the scene?

Birkett  Was there reference to the fact that there was a pair of panties that was recovered at the hospital?  I believe — I believe there was.  I mean, I would have to look at the transcript.  Yeah, they  were taken from her at the hospital as part of the rape kit.

Q.   I’ll represent to you there’s nothing in  the trial that makes any reference to a pair of  panties that were taken from  (the victim) at the  hospital.

Birkett: These were — I mean, it’s clear  from the discovery that Mr. Lyons’ attorneys and he were both — everybody was aware that there were two pairs of panties.  He was aware of that.

Q.   And was he aware of which pair of panties had been submitted for testing?

Birkett:  It’s in the lab report…. one pair of  panties identified as being taken from (the victim)….

Q.   Which pair?  The pair from the hospital or the pair from the scene?

Birkett:   This is the — this is the items that were submitted to the laboratory which were part of the kit.

Q.   Do you know — well, does it say part of  the kit?

Birkett: Exhibits K-1 through 9, K-9, having been  identified as taken from (the victim) and it lists those items.

Q.   Which item — which pair of panties — can you tell by looking at that report which pair of  panties went to the — went to the evidence lab?

Birkett:   Again, the — if you look at the report,  it appears to be the pair that was taken from (the victim)

Q.   Well, which ? There was two pairs taken from (the victim).

Birkett:   One pair was taken from (the victim)  The other pair was collected at the apartment.

Q.   And that’s how you —

Birkett:   That’s my understanding.  The panties to  be — this is K-16.  Examination of K-16 revealed the  panties to be in a slightly soiled and worn condition. Preliminary chemical tests conducted for blood on  extracts of Exhibit K-16 gave weak results in the crotch area of the exhibit.  Further serological examinations were precluded due to insufficient sample  size.  Further examinations of K-16 did not reveal the presence of any semen stains.

Q.   And just so I understand, this testing was  not done to the pair of panties that (the victim) testified she wore, put on immediately after the rape?

Birkett:  Well, again, that is something that  apparently was not done and I — I was not aware of  that….

Q. (page 43) What reason, if any, did you have for not producing the panties that were recovered at the scene?

Birkett: The panties that were introduced I believe were the panties that were recovered at the apartment. That’s my recollection.

Q. And had they been tested or not?

Birkett: The panties that were tested were the panties taken from (the victim)  at the hospital.

Q. Right. But you did not submit those into evidence?

Birkett: No, I don’t recall that we did. There was testimony regarding the results on those panties, that the trace evidence of blood.

Q:  I’m sorry for still pushing,. I just don’t understand. –You used as an exhibit the panties that were not tested, but you did not use as an exhibit the panties that were tested?

Birkett: That’ s my recollection.

Q. And would you like to explain?

Birkett:  Well, typically—and I’d have to look at the exhibit sheets — but typically there’s – panties that are tested. There’s – back at that time they would have been cut out, there would have been a cutout. The panties that were – that were a demonstrative exhibit, they were recovered in the apartment, they were the panties that (the victim) was wearing before she was raped, the bra that she was wearing before she was raped. That’s all.

Q. I’m not a prosecutor, so I don’t know. In the normal course of your business, would you say to a jury, “This is a demonstrative exhibit,” as opposed to saying, “Hey, these are the panties that were –“

Birkett: Well, they’re not – I shouldn’t say “demonstrative.” I mean, they were evidence; items collected at the crime scene. This is what she was wearing before she was raped. He took her clothes off of her, he raped her, and she showers, etc.  That’s the sequence of it. And again, those are the items that were in evidence, that were placed into evidence.

Q. But then do you tell the jury, “But we never tested those panties that she put on immediately after the rape?”

Birkett: There was – I don’t think there was any confusion about that.

Q. (p. 46) How could there not be?

Birkett: Well, you obviously are asking the question, but where is the confusion? I mean, you’re trying to suggest that I intentionally misled the jury?

Q. No.

Birkett: Because there was no—there was no such thing. The test that was done was done on the pair of panties recovered from(the vicitm)  at the hospital. That’s my understanding, and that’s what I believe I was referring to in this portion of the rebuttal argument: “Every single piece of evidence in this case corroborates her. Down to the panties that she had on after this guy forced his penis in her and whom” – and then it says “sic” – “which have/had weak can is of blood on them.” And then that’s

Q. I’m not suggesting that you deliberately misled the jury.

Birkett. Well, what are you suggesting?

Q. That you were misled

Birkett: I wasn’t misled at all. By who?

Q. Well, why would you say to the jury that the evidence which I’ve put before you is not the evidence that I’m talking about? In other words I’m putting before you a pair of panties, but it’s not the ones recovered at the crime scene?

Birkett: I haven’t looked at those panties, but if you’re trying to suggest to me or to any jury that the Woodridge Police Department intentionally misled my office, you’re flat out wrong. I don’t believe that happened at all.




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