Cook County prosecutor Gerber coaxed wrongful conviction, appeal states

Attorneys for convicted murderer say that prosecutor Michael Gerber engaged in "egregious conduct" that led to wrongful conviction based on thin evidence in Wheeling murder case. Gerber, now serving as judge by appointment, is a candidate for a full term on the bench in March.

Photo courtesy of Michael Gerber's campaign website

Michael Gerber’s comments as prosecutor before he was sworn in as judge are now being challenged

A man convicted of a 2013 Wheeling murder contends in a pending appeal that he was wrongly convicted as a result of “egregious” misconduct by trial prosecutor Michael P. Gerber.

Attorneys for Jesus Sanchez maintain that Sanchez is not guilty, and that a series of actions by Gerber, himself now a Cook County Circuit Judge, led a 2014 jury to wrongly convict their client on scant evidence.

Gerber is serving a temporary term on the Cook County Circuit bench after being appointed in late 2016 by the Illinois Supreme Court. He is now running for a full six-year term on the bench in the upcoming March Republican primary in a northwest suburban subcircuit.

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Beginning on February 21, Cook County voters will start heading to the polls to winnow down the field of 110 primary judicial candidates vying to fill 39 vacancies on the bench. For the majority of races in which there is no partisan contest, the primary elections serve as the final word in who will become a judge in Cook County. This article is part of Injustice Watch‘s continuing coverage prior to the March elections.

Injustice Watch reported this month on another case in which a fellow judge ruled in October that Gerber misled a jury by misstating facts in the closing rebuttal statement of a murder defendant named Arthur Brown, leading to Brown’s wrongful conviction.

In that earlier case, Circuit Judge Joseph Claps ruled that the actions by Gerber and his co-counsel “amounted to a purposeful due process violation that led to [Brown’s] conviction.”

In Sanchez’s case, state appellate defenders contend in a pending appeal,  “Gerber coaxed the jury into a conviction based on zero solid evidence. Maybe that is a testament to the power of his rhetoric, but it is an affront to justice.”

The main evidence in the jury trial before Circuit Judge Thomas P. Fecarotta Jr. was Sanchez’s own statement. Sanchez’s defense attorneys argued that the statement was false and followed an improper arrest and detention.

Gerber failed to respond to telephone calls. Earlier, when contacted about Claps’s decision in Brown’s case, Gerber said he could not comment.

Chaotic scene after shooting

Illinois Department of Corrections

Jesus Sanchez was convicted of first-degree murder in 2014. His attorneys contend he is innocent and his confession was coerced.

Wheeling Police Sergeant Michael Conway received reports of a shooting on May 1, 2013 and arrived at the Chicago suburb’s Wine Tree housing complex to find a chaotic scene, with neighbors berating the police for not arriving earlier. Twenty-three year old Rafael Orozco lay dying.

According to police, Orozco was affiliated with the Surenos street gang. Conway watched a group of teens whom he identified as Surenos chasing two other young men, later identified as Bryan Estrada and Jesus Sanchez. According to a dashcam video introduced at trial, Conway told the two to “get your ass over here, right here, don’t go anywhere.”

Wheeling detectives gave the following account of the rest of the evening in their trial testimony:

As Estrada and Sanchez sat on the curb, Conway handcuffed them to each other but told them they were not under arrest. The two were transported separately to the station somewhere before 10 p.m. Sanchez, who was 18 years old at the time, remained handcuffed until police put him in an interrogation room and took away his phone.

Police brought several other witnesses to the station that night; according to Detective Ignacio Oropeza’s testimony, Estrada and Sanchez were the only two handcuffed.

At about 10:19 p.m., Detective Oropeza began interviewing Sanchez after Sureno members had said Sanchez knew something about the shooting. Sanchez told Oropeza that he and his friends were at a nearby complex when they heard the shots and hurried over to the scene to check on a friend.

Oropeza left to interview other witnesses and returned at 2:50 a.m. Sanchez told him about an altercation earlier that day between a Sureno gang member and Sanchez and his friends.

At 3:40 a.m., Sanchez was given a gunshot residue test that produced a false positive result: There was no gunshot residue, but the test mistakenly showed that there was.

Sanchez was then left alone in the interrogation room until 7:53 a.m., when he was given his Miranda rights and interviewed, for the first time, on video.

During the video interrogation, Sanchez began by again telling detectives that he and friends were at a nearby housing complex when they heard shots and went to the scene of the shooting, where Surenos saw him and started chasing him. He admitted to being a former member of the Maniac Latin Disciples, a rival gang to the Surenos, but said he had left the gang life behind and was now focused on work.

Detectives informed him that he must be lying, since other witnesses said he had committed the shooting, and the gunshot residue test showed he was guilty.

Crying, Sanchez said he wanted to go home, that he wanted his mother. The police kept questioning Sanchez, telling him either it was an accident or he did it on purpose: Which was it?

More than 50 minutes after the videotaped interview began—more than 11 hours after Sanchez was first handcuffed—he finally said that Bryan Estrada took the gun from him and shot it. The police continued their questioning, and 15 minutes later Sanchez said he did fire the gun, though he said it went off by accident. In his retelling of the crime in the videotaped statement, Sanchez gave many facts that conflicted with the evidence, including the direction in which shots were fired.

During the videotaped interview, Sanchez asked for his mother a total of 28 times. The detectives said 21 times that he could see her once he told the truth.

One of the other teenagers brought to the station that night was Heladio Flores, then 15, a friend of Sanchez’s. Flores, like Sanchez, told police in an unrecorded interview that he, Sanchez, and their other friends were nearby, at another housing complex, when the shots rang out, and they then hurried over to the scene.

After Sanchez’s admissions the next morning, detectives conducted a videotaped interview of Flores. He again insisted Sanchez and friends were at a nearby complex when the shots occurred. After Detective Michael Bieschke told Flores that he knew Flores was lying, and that Sanchez had admitted to firing the shots, Flores then changed his version of events and also implicated Sanchez.

Bieschke asked about what happened to the gun, and suggested that it could have been thrown into a nearby pond. Flores agreed that was what happened, and even took detectives to the scene where he said it was thrown. But the police were unable to recover any weapon.

At trial, Flores said that his statement was false, and that he implicated Sanchez to police because police said they already had evidence against Sanchez and he wanted to go home.

Sanchez did not testify at trial. The defense maintained his statement was coerced after he was improperly taken into custody and detained.

The jury convicted Sanchez of first-degree murder after over eight hours of deliberation.

Gerber conduct challenged

On appeal, Sanchez’s attorneys challenge Gerber’s conduct both as he questioned witnesses and in closing arguments.

Before the trial began, Judge Fecoratta ruled that the prosecutors were not to introduce evidence of the false positive result they obtained in testing for gunshot residue on Sanchez’s hands.

The defense contends Gerber intentionally violated that ruling as he questioned Oropeza at trial about how the detective came to consider Sanchez a suspect. “You talked to a lot of people that night, right?” Gerber asked. “And he was put in an interview room after you talked to some of those people,” Gerber continued. “And it was after you spoke to some of the evidence technicians that this guy was put into a room and made a suspect, is that right?” The judge sustained an objection to the last question.

The appellate attorneys also focus on a series of comments Gerber made during closing arguments.

Gerber began his final argument asking the jury, “Who in the world said this confession was false? Who got up on that witness stand and said this confession was false, this confession was not true, words were put into the mouth of the defendant[?] Who said that? Nobody said that.”

Sanchez’s appellate attorneys say that Gerber was improperly commenting on Sanchez’ decision not to testify, which would be improper. The State’s Attorneys’ office responds that Gerber was not commenting on Sanchez’s failure to testify, but was pointing out that there were no witnesses who said his confession was false.

Court rulings also have established that attorneys are not supposed to play to jurors’ passions. Sanchez’s lawyers say Gerber did so in his closing statement when he accused the defense of “insulting the integrity of law enforcement” and suggested that the defense should “call the Maniac Latin Disciples when somebody shoots in their neighborhood” but he would “call the Wheeling Police Department because that’s who my gang is.”

Gerber added, “if you don’t think justice was the intent of the police department… then you find your pen and you find this killer not guilty and let him get back out on the streets. It’s an outrage. It’s an absolute outrage.” He called Sanchez a “sniveling, cowardly killer.”

In its response to the pending appeal, the state attorney’s office contends that Gerber’s comments were not improper. And if any crossed the line and were improper, the state argues, they did not impact the jury’s decision.

Sanchez was sentenced to 45 years in prison. He is incarcerated at the Pontiac Correctional Center.

Gerber hears municipal cases at the Skokie courthouse. When he was appointed to the bench in December 2016, colleagues and defense attorneys praised his skills during his 33 years as an Assistant State’s attorney.

The 13th subcircuit, where he is running for a full six-year term, covers parts of Chicago suburbs Barrington, Palatine, Wheeling, Schaumburg, Hanover and Elk Grove.