The Dummy Part II—The Trial and EpiloguePosted: July 13, 2012 Follow @JimPadar
If I thought this investigation itself was unusual, the trial of Donald Lang and the aftermath was truly a conundrum. As the weeks dragged into months it became apparent to me that Donald Lang’s notoriety was strictly due to the opinion by the Illinois Supreme Court that resulted in his release. That, and an unusually intense interest by the local media.
The Chief of the States Attorney’s Criminal Division, as promised, sent me a copy of the Illinois Supreme Court opinion regarding Lang’s earlier murder case. I was a part time criminal justice student at the University of Illinois-Chicago, just a few blocks from the Maxwell Street homicide office. I read the eight page decision with great interest. Click the link below:
In a 1960 landmark case, Dusky v. U.S, the United States Supreme Court established that a defendant must understand the charges against him and must have the ability to aid his attorney in his own defense. From what I knew about Donald Lang, that would be an impossibility. But when I read Donald Lang v. Department of Mental Health (September 29, 1970) the Illinois Supreme Court seemed to be saying, go ahead and try Lang anyway.
After Donald Lang had been arrested in November 1965, in a case remarkably similar to our present case, he was never brought to trial because he was unable to cooperate with counsel. His case kicked around for nearly five years while Lang was held at the Illinois Department of Mental Health. His attorney, Lowell Myers, moved that Donald be released from custody because he had never been given a trial and therefore had never been convicted of any crime. Furthermore, the Department of Mental Health had opined that Lang would “never acquire the necessary communication skills needed to participate and cooperate in his trial.”
So the crux of Lowell Myers’ argument was simply that Lang had been in custody for several years, never tried, never convicted and there was no likelihood that he would ever go to trial. Under these circumstances, Lang was simply entitled to discharge according to Myers.
The Illinois Supreme Court didn’t quite see it that way, ruling instead that Donald Lang, “handicapped as he is and facing an indefinite commitment because of the pending indictment against him, should be given the opportunity to obtain trial to determine whether or not he is guilty as charged or should be released.” While earlier acknowledging the principle mandated in Dusky v. U.S, the Supreme Court gave no guidance on how that might be accomplished in the final portion of their ruling.
The first case went back to the Criminal Court at 26th and California. The States Attorney’s office upon review found that two of their witnesses were dead, one was dying and a fourth could not be located. In February 1971, the State dropped the case against Donald Lang and he was released from custody without trial. Less than six months later Phil Ducar and I arrested Donald Lang for a second murder with eerie similarities.
The entire scenario seemed poised to repeat itself. Assistant States Attorneys Joe DiNatale and Tony Corsentino were assigned to prosecute our case. They prepared to go to trial. When I asked about the inability of Lang to cooperate with his attorney, they cited the Illinois Supreme Court opinion mandating that Lang “be given the opportunity to obtain a trial…”
Donald Lang was going to be tried for the murder of Earline Brown and apparently questions regarding his competency, or lack thereof, would not be addressed. It seemed to me to be a formula for a legal disaster. But I was only a college junior, student of Criminal Justice—what did I know? In retrospect, perhaps the Illinois Supreme Court was guilty of rolling the judicial dice. If Lang was tried and found not guilty, the problem would simply go away. But—and it was a big BUT—if Donald Lang was convicted there would be inevitable appeals based upon Dusky v. U.S which requires the defendant to have the ability to cooperate with counsel.
DiNatale and Corsentino prepared over the next several months with all the fervor associated with a major murder trial. They were relatively young but very experienced prosecutors. Over the next several months they assembled the case based upon witness accounts and physical evidence, but no one had actually seen Donald Lang kill Earline Brown. It would be a circumstantial case, a strong one they felt, but still a circumstantial case.
Lowell Myers would once again represent Donald Lang. Lowell was an amazing man. He was born with impaired hearing and by the time he was a teen-ager he was essentially deaf, but those early years had provided enough hearing for him to learn to speak. As the years passed however his ability to articulate began to deteriorate. His lack of hearing resulted in him gradually losing the ability to form his words with clarity. He struggled continuously to maintain the capacity to speak. He became a CPA and went to law school part time. He graduated number two in his class at John Marshall Law School. As he built a successful law practice he dedicated himself to helping deaf clients.
Lowell Myers was a consummate gentleman. He would prove to be a tough opponent in the adversarial world of our criminal justice system. But there was never any personal rancor that so many times overshadowed the world of the criminal trial courtroom. In short, I respected him and liked him as a person. When he passed away in November of 2006 I was out of town. I was saddened by both his passing and my inability to attend his services.
The trial of Donald Lang began on January 17, 1972, some six months after his arrest. He had spent the entire time in jail awaiting trial, much as he had in his previous case. Questions of his ability to understand the charges against him and cooperate with counsel were not addressed. The Illinois Supreme Court had mandated that he be tried on the first case… they never foresaw the possibility that he would be charged in a second murder. By their order, Lang would have to have his trial.
I was completing my second year as a homicide investigator but this was my first major murder trial as lead investigator. In the early 1970’s the lead investigator sat at the counsel table with the prosecutors to assist with the details of the case. DiNatale and Corsentino didn’t need much assistance but never-the-less it was a heady time for me. The trial would run six days, but in the month of January I would spend nearly 100 hours at the Criminal Courts Building both in preparation and at the actual trial. They were at the same time tense and mind numbing hours.
My testimony came early in the trial and I nearly derailed proceedings with a bonehead error borne of inexperience. I had reviewed my written reports to the point of nearly memorizing them and DiNatale and Corsentino had spent several hours preparing me for my testimony. But when I got on the stand my mind raced with anticipation, a deadly enemy of courtroom witnesses. I had spent several hours on the stand and things had gone well. Corsentino had asked all the questions I had prepped for and I sensed he was concluding as he turned toward the counsel table, but suddenly he turned back to me with one final question, one very simple question, but a question we had not prepped for.
“By the way, did you make a determination as to the age of the defendant, Donald Lang?”
It was a fact that needed to be in the trial record to show that Donald was an adult at the time of the murder. But it was a question we had not prepped. Police officers spend classroom hours on courtroom testimony, appearance, demeanor and other factors that impact credibility, but they also stress a cardinal rule: only answer what was asked, never, never volunteer information beyond what was asked. A simple rule. And it was a simple question with a one word answer, “yes.” But the human brain is an amazing organ and under stress it can process thought patterns with amazing speed. My mind raced with anticipation—if Donald Lang was deaf and dumb and could not read, write or use sign language how did I determine his age? I of course new exactly how I had determined his age and I was happy to include that with my answer:
“Yes sir, according to police records…”
Judge Strayhorn bolted upright and shouted.
“Strike that! The jury is instructed to disregard it. Wipe it completely out of your minds!”
Corsentino waited just a moment and then rephrased the question.
“What was age of the defendant officer?”
“Twenty-five,” I replied.
But Strayhorn wasn’t done. He banged the gavel sharply several times. If the jury was not wide awake and alert moments before, they certainly were now. Then he did a curious thing. With the jury and the entire courtroom’s attention riveted on him, he repeated the offending phrase.
“The jury is instructed to disregard any statement that this officer made about ‘according to police records.’ I want you to wipe it completely out of your minds. We will have a short recess… take the jury out.” If the jury missed the words the first time, they certainly did not the second time and they were obviously aware that the phrase had enormous significance. They would never be able to wipe it completely out of [their] minds.
I think Strayhorn really believed that I had made the statement intentionally and maybe even that Corsentino had put me up to it, but neither was true. It was simply an error of an inexperienced investigator at his very first murder trial. Strayhorn vented on me for some time and would not allow Corsentino to come to my defense.
Meantime, the wheels were turning in the mind of the defense attorney, Lowell Myers. He immediately moved for a mistrial. My heart sank. After months of preparation, the thought of starting all over again was more than I could imagine. Apparently Judge Strayhorn was sobered by the thought also. He denied the motion and Strayhorn, along with the attorneys crafted a stipulation to be read to the jury. It was read to them when they returned to the courtroom:
“Donald Lang has never been convicted of any crime, either in the State of Illinois or anywhere else.”
I could only believe that the reaction to my answer and the removal of the jury from the courtroom only served to more firmly fix the offending phrase in their minds. They must have thought, “where there’s smoke, there’s fire.”
The trial proceeded.
Mattie, the Viceroy Hotel desk clerk testified to seeing Donald Lang check in with Earline Brown and sometime later leave alone. Mattie’s friend Rufus confirmed those facts with added credibility by virtue of the fact he had known Donald Lang for many years.
Other witnesses from the seamy side of West Madison Street’s bars, serving as dens of prostitution, painted a vivid albeit sordid picture of daily life on the street. The jury was being exposed to a side of ghetto life that I doubt many of them ever knew existed.
Personnel from the Crime Lab presented the blood evidence along with other trace evidence that strongly inferred that Donald and Earline had been together.
Donald Lang began the trial with a bored demeanor that over the days that gradually morphed into impatience and restlessness. I believe that as the trial wore on his uncanny powers of intense observation brought him to the conclusion that not everybody in the courtroom was his friend. From early on he scowled at Corsentino. In the courtroom he seemed to interact mostly with Tony Corsentino and the net effect was negative. It was an inner boiling side of Lang that I had not seen before. Then one day before court had even convened, Donald began screeching and wailing in the bullpen cell behind the courtroom. It was disturbing to listen to and would have been disastrous if the jury were to witness such outbursts. Lowell Myers asked that Donald be excused from the courtroom. DiNatale and Corsentino objected, but Strayhorn wisely agreed with Myers. Donald was led from the courtroom, out of earshot of the jury. No reason for the defendant’s absence was ever given to the jury.
As the case wound down the state had presented an impressive case against Donald Lang. Impressive, but never-the-less circumstantial. With the exception of Lang, to the very best of our knowledge, there were no direct witnesses to the crime. And Donald couldn’t tell us.
Lowell Myers offered some hypotheses as to other possible offenders, but while they might have been reasonable alternative explanations he had no way of convincing the jury that they might be true.
After a six day trial, final arguments were presented on Monday January 24th, 1972. The trial and jury instructions concluded, the jury was sent out to supper in the late afternoon. Upon their return, they deliberated a scant two hours and returned a verdict of guilty. I think it was an outcome the courts, particularly the Illinois Supreme Court, had never anticipated. As a result of their decision in the earlier murder case and their mandate to provide Donald Lang a trial, the case resulted in the conviction of a person unable to understand the charges against him and unable to aid his attorney in his own defense. More than fertile grounds for appeal in this novice homicide investigator’s opinion.
Judge Earl Strayhorn continued the sentencing hearing several times over the next five months while he wrestled with an appropriate sentence and an appropriate facility for Donald Lang. The latter was the most difficult—there was simply no facility that seemed to fit Lang’s unique needs. In early May, Strayhorn pronounced sentence on Donald Lang. The transcript of that final hearing read in part:
It will be the sentence of this court that Donald Lang be taken from the bar of this court and turned over to officials of the Department of Corrections for eventual incarceration in the Joliet Recpetion and Diagnostic and Special Treatment Center. I want the record to show that he is not to be removed from that facility without prior approval of this court. I am sentencing him specifically to that facility with the understanding that he is not to be placed in the general prison population as long as he is suffering from his present physical disabilities, for a minimum period of fourteen years and a maximum period not to exceed twenty-five years.
It was a busy news day and the glow of the Donald Lang case had worn thin on the media at least for the moment. Some of the daily papers did not carry the story at all, while others buried it, grouped with other newsbytes of the day. But the saga of Donald Lang was far from over. Appeals would be filed by Lang’s newly appointed legal team as the criminal justice system struggled with what to do with him.
Less than a year after his sentencing I was told that a Chicago Daily News reporter, Dorothy Storck would be researching a book about Donald Lang for Ernest Tidyman, author and screenplay writer noted for his recent films, Shaft and The French Connection. I was told if the book worked, a movie would follow. Cooperation with Dorothy Storck would be voluntary but since she already had the department’s blessing and seemingly unfettered access to case files and court transcripts many of us agreed to talk with her. And talk to her we did—at length. The result of her research was a book authored by Tidyman titled Dummy, published in 1973. It turned out to be an exhaustive and authoritative account of both the murders with which Lang was charged as well as detailed background on Lang from childhood. Tidyman followed the book with a made-for-television movie by the same name. Starring Levar Burton as Lang, the movie covered only the first murder and so many liberties were taken with the facts of the case and the police investigation that I was deeply disappointed. The book however, is still part of my library.
In February of 1975, the seeds sown by the Illinois Supreme Court Opinion of September 1970 sprouted a literal minefield of legal weeds. The Illinois Appellate Court threw out Lang’s conviction in the Earline Brown homicide. While they held that there was “ample evidence to show that Donald Lang strangled Earline Brown,” they also stated that the trial itself was “constitutionally impermissible” because of Lang’s disabilities. Because there were no trial procedures which could effectively compensate for the handicaps [of Donald Lang] his conviction was reversed. In once again, curious circular judicial reasoning, the case was remanded for retrial.
The front page headlines of the February 15, 1975 Chicago Sun-Times aptly described it as “THE CASE OF THE UNPROVABLE MURDER.” The Appellate Court added however, that if methods were not found to compensate for his disabilities, Lang should be committed to the Department of Mental Health and institutionalized —with his condition reviewed at “stated intervals”—for a period limited to the maximum sentence that could be imposed for the offense charged.” Under the sentencing laws in effect in 1972, that meant that Lang might possibly spend the rest of his life in a mental institution… without the trial mandated by the Illinois Supreme Court in September of 1970.
The goal then was to train Donald to communicate so that he would be able to cooperate with counsel and eventually stand trial. Although no one can argue that Lang was profoundly neglected by the social safety nets that might have helped him, it was also true that in every instance where training was attempted it failed. It was unclear whether it was due to Donald’s lack of cooperation or his inability to learn. His original attorney, Lowell Myers suggested it was a combination of both. Lang would attempt to learn signing for example, would become frustrated at his inability to do so and he would simply shut out any further efforts. Lang was now 29 years old and his ability to communicate on any abstract level was nil. (i.e. What happened yesterday? Where are you going tomorrow?) It was against that background that the Appellate court ordered the Illinois Department of Mental Health to develop a training program to teach Land to communicate. They may as well have ordered them to draw blood from a rock. Lang remained in Cook County Jail.
However, there was one difference this time around. Considering his trial and conviction in the Earline Brown murder, and documented violent outbursts while in custody over the years, part of the ruling read: In light of the evidence of impulsive and explosive behavior which resulted in violent acts on the part of Lang, it is essential that he reside in a setting with sufficient security to insure the continuity of treatment and his appearance in court.
In January of 1976, the United States Supreme Court refused to review the Illinois Appellate Court decision that reversed Lang’s conviction in the Brown homicide. There was clearly no magic bullet that could unravel the legal morass created by this case and there were obviously gaps in Illinois law as to how to handle such cases, but in essence the U. S. Supreme Court was telling Illinois to handle its own problems.
In March 1976, a Criminal Court judge formally pronounced Donald Lang not fit to stand trial, but he did not drop the still pending murder charges in the Brown homicide. This enabled the system to move Lang from the Cook County Jail to the Chicago-Read Mental Health Center. He was to return to the Criminal Court in six months for a reevaluation of his condition. But it didn’t work that way. Another judge ruled that Donald did not meet the legal criteria for commitment and ordered him returned to jail. His bond on the pending murder charge was set at $50,000. Lang, who was destitute, needed 10% or $5,000 to be released from custody pending retrial. At this point, no one who knew the details of his background was willing to take a chance of having him released.
At some point Lang was transferred to the Illinois State Psychiatric Institute and had reportedly “begun to learn to communicate.” A Circuit Court judge ordered that Lang continue his training until he could be ruled fit to stand trial. The Department of Mental Health however appealed the judge’s order because they claimed their department did not have the legal authority to treat persons who are not mentally retarded or in need of mental treatment. Their position was that Donald had a physical handicap, not a mental handicap. They sought to transfer Lang back to Cook County Jail. Three weeks later, the Circuit Court judge ordered the director of the Illinois Department of Mental Health to show cause why he should not be held in contempt for not developing a training program so that Donald Lang could stand trial for the Brown murder.
It was beginning to appear that Lang was beyond the reach of the criminal law and perhaps beyond the reach of any meaningful training that might help him. He languished in a never-never land in our society, outside the purview of any social agency’s existing programs. Given his well documented propensity for occasional violence his unfettered return to life on the streets was not a logical option. What to do?
The Illinois Appellate Court stepped into the fray between the Circuit Court and the Department of Mental Health. They ruled in favor of the Department of Mental Health. On October 4, 1977 Donald Lang was returned to the Cook County Jail.
Judge Earl Strayhorn summed it up.
“No one knows what the hell to do with him. The Department of Mental Health says it’s not their job, the Department of Corrections says they don’t know how to help him and the courts just don’t want him.”
In an effort to literally chop its way out of the Donald Lang legal thicket, on September 24, 1979 the Illinois Supreme Court issued another ruling in the Donald Lang case. They ruled that Lang must be given still another hearing to determine if he is fit to stand trial for the Brown murder charges. If he is found unfit and dangerous he must be committed to the Department of Mental Health for treatment. They were equating “unfit for trial” with “mental illness” which in Lang’s instance was not correct.
Never-the-less, a hearing was held in June of 1980 and Donald Lang was found unfit to stand trial. Shortly after that I was called down to the Civic Center to testify at a civil commitment hearing with regard to any danger that Lang might pose. I was not asked for my opinion, rather the Assistant States Attorney guided me through the facts of the Earline Brown homicide and the subsequent trial. At the conclusion of my testimony the ASA asked me two final questions.
“Detective Padar, did the jury reach a verdict in that trial?”
“And what was that verdict?”
“Guilty of murder.”
There were no further questions. Donald Lang had been found unfit for trial and dangerous. In accordance with the order of the Illinois Appellate Court, he was to be committed to the Department of Mental Health. I would attend several re-commitment hearings in the next decade where I would repeat my testimony.
But the state of Illinois did not want to be on the hook for training Lang for what they considered a physical disability, not a mental disability. They appealed to the U. S. Supreme Court to overrule the Illinois Appellate Court. On January 21, 1980, almost exactly 9 years after Lang’s conviction, the U. S. Supreme Court refused to hear the case. It looked like the Department of Mental Health would become Donald’s home for the indefinite future. He was transferred to the high security Manteno facility of the Department of Mental Health. Almost two years later, in November of 1981 Lang was transferred to the less restrictive facility at Chicago-Read center where it was thought he could get better training.
On Thursday, March 4, 1982 at about 8 PM, Donald Lang “escaped” from the Chicago-Read Mental Health Center on Chicago’s far northwest side. After nearly 11 years in custody and unable to speak, hear, read or write he somehow made his way to the far south side on public transportation and telephoned his sister with the help of a bystander. He used money he earned in the center’s workshop to board a CTA Rapid Transit train to the south side. He was carrying a note with his sister’s name, address and phone number. His sister returned him to Chicago-Read less than 12 hours later. No, Donald Lang was most definitely not retarded.
Over the years, the Department of Mental Health has documented several violent outbursts by Lang. His handicap frustrates him and causes him to lash out at times. In addition, he has problems relating to women in social settings at the mental health facilities. These incidents, along with his documented history of two murder arrests and one conviction serve to place him in the “dangerous” category, thus insuring his continued incarceration.
As of this writing, Donald Lang remains in custody at the Chicago-Read Mental Health facility. He is legally blind in one eye and his sight is failing in the other. For a person who’s survival literally depended upon his sight and keen powers of observation this must indeed be devastating.
He is 66 years old this year. I would hope and assume that he enjoys supervised family visits in his later years if his sister and brothers are still alive. I liked Donald Lang. He was street smart and learned to hone his remaining senses to insure his own survival. He was a bright young man in spite of his disability. I have a great deal of empathy for Donald Lang. Our system truly failed him every step of the way in spite of the best efforts of his parents to seek help for him. Given the proper training at an early age this entire scenario might have been avoided.
But being so closely involved in the investigation and prosecution of the Earline Brown homicide, I feel that he was correctly convicted of her murder. And after reviewing the circumstances of the Ernestine Williams murder five years previous, there seems little doubt that Lang was also responsible. Despite an abundance of societal failings with regard to Donald, I cannot translate that into justification for their murders. They deserved better than to die by Donald’s hand.