It’s obvious who killed Paola Rodriguez — and Kane County has it wrong

A decade ago, a gang member Tony Rosalez was convicted of an Elgin drive-by murder after two other gang members gave statements to police that Rosalez had pulled the trigger. Both have now recanted and said Rosalez is innocent, leaving Rob Warden to question what Rosalez is still doing behind bars.

There’s no doubt that Manith Vilayhong and Raul Perez-Gonzalez are guilty of the gang-related murder for which they and a third man are in prison. The murder is that of 21-year-old Paola Rodriguez, who died of a gunshot wound to her head a decade ago in Elgin, Ill. The third imprisoned man is Tony Rosalez, who was with Vilayhong and Perez-Gonzalez in an SUV from which the shot that killed Rodriguez was fired.

Based on accusations initially leveled—now recanted—by Vilayhong and Perez-Gonzalez, Kane County prosecutors charged Rosalez as the triggerman. At the time of the crime, he was a 19-year-old member of the Maniac Latin Disciples. Vilayhong was a 22-year-old self-described “enforcer” for that gang. Perez-Gonzalez, 21, was the driver of the SUV.

Vilayhong and Perez-Gonzalez entered into plea agreements to secure lenient sentences for themselves in exchange for testifying against Rosalez—but Perez-Gonzalez reneged on his deal, making Vilayhong the star witness for the prosecution.

Rosalez was convicted by a jury after a three-day trial in February 2012 and sentenced to 30 years in prison by Kane County Circuit Court Judge David R. Akemann. Per his plea deal, Vilayhong was sentenced to 20 years. Perez-Gonzales was sentenced to 35 years for the murder plus 10 years to be served consecutively for contempt of court as a result of refusing to testify to what he and Vilayhong now contend was a lie.

Vilayhong has signed an affidavit stating that immediately after the crime he directed those who knew that he killed Rodriguez, if questioned by police, to say that Rosalez did it. “I used my influence in the gang and the fear that people had in me to have other people identify him as the shooter and I also testified that he was the shooter,” says the affidavit. “I feel bad that Tony Rosalez is doing time as the shooter when I knew that he was not and that I played a role in his conviction.” As Perez-Gonzalez puts it in an affidavit, “Tony Rosalez did not take any part in this incident and should not be incarcerated.”

Despite the sworn statements of Vilayhong and Perez-Gonzalez, Kane County Circuit Court Judge Todd B. Tarter, who inherited the case in a post-conviction posture after Judge Akemann retired, recently affirmed the Rosalez conviction—holding that Rosalez should have obtained the statements earlier. Tarter’s reasoning is dubious—to my mind at best naively biased or at worst disingenuous.

The trial evidence indicated that at about 9:30 p.m. on Jan. 30, 2009, a Friday, Paola Rodriguez, her cousin, Sara Almanza, and Almanza’s boyfriend, Omar Zavala, were in a filling station parking lot on Bluff City Blvd. in Elgin. When a Ford Expedition SUV happened by, some of its occupants exchanged insults with Zavala, a member of the Insane Deuces street gang. The SUV was driven by Perez-Gonzalez. The passengers were Vilayhong, Rosalez, 15-year-old Jose Pellot, and 21-year-old Jose Gonzalez (no relation to Perez-Gonzalez). Vilyahong and Perez-Gonzalez, as previously noted, were members of the Maniac Latin Disciples—a rival gang of the Insane Deuces.

Paola Rodriguez—behind the wheel of a Pontiac Grand Prix with Sara Almanza in the passenger seat—pulled out of the parking lot, turning north onto Raymond St., followed by a Dodge Durango driven by Omar Zavala. The Ford Expedition circled back and pulled alongside the Grand Prix. A gunshot shattered the driver’s side window of the Grand Prix, fatally wounding Rodriguez, the mother of a 5-month-old son. Almanza, who brought the Grand Prix to a stop as the Expedition sped away, told police that the latter had silver vent-like objects attached to its right fender.

On Saturday, Jan. 31, an Elgin police officer, stopped a Ford Expedition with objects like those Almanza described on its fenders. The driver, Perez-Gonzalez, was taken into custody. Perez-Gonzalez, Vilayhong, and Rosalez were arrested soon thereafter. Vilayhong refused to talk to police, but Perez-Gonzalez told them that Rosalez fired the fatal shot. In a tape-recorded interview, Rosalez acknowledged being in the Expedition when the crime occurred, but denied being the triggerman; he wouldn’t say who was. All three were charged with first-degree murder. After negotiating their plea deals, Vilayhong and Perez-Gonzalez agreed to testify against Rosalez at his trial.

Once Perez-Gonzalez backed out of his plea deal, Vilayhong provided the only testimony linking Rosalez to the crime. Vilayhong’s testimony was minimally corroborated by Sara Almanza and Jose Gonzalez, who testified that they didn’t see who fired the fatal shot, but that they did see a flash that they thought came from where the evidence indicated Rosalez was sitting in the SUV; Jose Pellot testified that he was drunk and didn’t know what happened.

It’s fair to say, thus, that Rozalez’s conviction rests on the testimony of a liar—either Vilayhong lied at the trial or his recantation is a lie. I would argue that no conviction should stand on the testimony of a liar, but, of course, courts invariably hold otherwise. In this case, however, the facts and common sense lend considerable credence to the exculpatory Vilayhong and Perez-Gonzalez affidavits.

First, what other than a guilty conscience could have motivated Perez-Gonzalez to pull out of his sweet plea deal when doing so cost him an extra 21 years in prison? If he’d stuck with the deal, he’d be eligible for release along with Vilayhong in 2032. As it is, Perez-Gonzalez isn’t scheduled for release until 2053. That’s a steep price to pay for refusing to provide the testimony the prosecution desired and that, as previously noted, both he and Vilayhong now say was a lie.  Perez-Gonzales’s affidavit says that he is coming forward now for no reason other than it’s “the right thing to do and I don’t want to see an innocent man in prison.”

Second, Vilayhong’s recantation is against his penal interest—which courts normally regard as indicia of reliability. While he can’t be tried again for the murder—in light of the double jeopardy clause of the Fifth Amendment—he could be tried for perjury. In Illinois, all it takes to prove perjury is that materially conflicting statements have been made under oath. The prosecution need not establish which statement is false—no matter how long ago or under what circumstances the first statement was made. In one such case, a recanting witness in Cook County was sentenced to 30 months in prison.

Third, the Vilayhong and Perez-Gonzalez affidavits are corroborated by an affidavit from another witness—an associate of Vilayhong’s named Andres Garza, who says Vilayhong asked him to dispose of the murder weapon, a .40-caliber semiautomatic pistol, and confided that he committed the crime within hours of its occurrence. Says the Garza affidavit: “I have felt great guilt that Tony Rosalez is in prison as the shooter when I knew that [Vilayhong] was the one who had the gun and shot it.”

In sum, the evidence supports what Vilayhong and Perez-Gonzalez now say and that Garza corroborates—that Vilayhong fired the shot that took Paola Rodriguez’s life and that Rosalez had nothing to do with the senseless act.

Rob Warden is co-director of Injustice Watch and executive director emeritus of the Center on Wrongful Convictions at Northwestern University Pritzker School of Law.

Rosalez’s current lead counsel is Leonard C. Goodman, a member of the Injustice Watch Board of Directors.