State’s attorney asks judge to reconsider Patrick Pursley’s certificate of innocence
ROCKFORD — Winnebago County State’s Attorney J. Hanley, along with parties in a wrongful conviction lawsuit, are asking a judge to reconsider a certificate of innocence in an almost 30-year-old murder case.
Judge Joseph McGraw granted the certificate to Patrick Pursley last month, expunging his record in the 1993 death of Andy Ascher, a Rockford man who was shot during a robbery on the city’s east side.
Pursley was convicted of the crime in 1994 and sentenced to life in prison. He won a new trial in 2017 and was acquitted after a 2019 retrial, during which his attorneys presented ballistics evidence that showed his 9mm was not the weapon used to shoot Ascher twice in the head. McGraw issued a certificate of innocence Feb. 26.
Hanley filed a motion to reconsider March 31 on behalf of the state and 15 parties named in Pursley’s wrongful conviction complaint he brought against the City of Rockford. The motion claims that bullets and casings found at the crime scene were not properly entered into the Illinois State Police Integrated Ballistics Identification System (IBIS) and thus were not compared with slugs and cartridges test fired from Pursley’s gun. The state’s attorney claims a software update preventing the evidence from being entered under the same case number is to blame.
Hanley’s motion adds that the assertions by Pursley’s lawyers that crime-scene evidence does not match their client’s gun are misleading.
“Any report or conclusion that IBIS failed to identify any of the bullets and cartridge casings test-fired from (Pursley’s gun) as even low-confidence matches to the crime scene evidence was misleading because IBIS did not run the comparison,” the motion said.
Pursley’s attorneys say that not only are Hanley’s findings not new evidence, they aren’t evidence at all.
“IBIS was not a factor in the court’s finding that Patrick met his burden to receive his certificate of innocence,” co-counsel Ashely Waddell-Tingstad said. “This alleged correlation doesn’t change anything. It doesn’t change the underlying testimony, reports and forensic evidence that was presented in this case and upon which the court relied to come to its conclusion.”
She said the only newly discovered evidence was presented during the case’s post-conviction phase. First, there are the testimonies of John Murdock and Chris Coleman, two firearms experts who testified at retrial that tests done by the Illinois State Police linking Pursley’s gun to the crime were wrong.
“The other piece of newly discovered evidence was that Illinois State Police firearms examiners had changed their opinions over the years,” Waddell-Tingstad said.
In 1993, Dan Gunnell, an examiner with the Illinois State Police, testified that he could match the bullets and casings to Pursley’s Taurus 9mm. Almost two decades later, he wasn’t sure.
“In 2012 he said, ‘I’m inconclusive on the bullets,'” Waddell-Tingstad said. “And the judge found that to be newly found evidence.”
Waddell-Tingstad said even if IBIS found a correlation in the Pursley case, it wouldn’t make a difference in McGraw’s ruling. The system often makes thousands of correlations but does not match bullets to guns. That’s exactly what happened in 2011.
“An ISP firearm examiner entered the cartridge cases from the crime scene into IBIS,” she said. “For one cartridge case, they got back 1,009 correlations. For the other casing, they got back 1,072. That’s thousands of potential matches of guns used in different crimes.”
But matching a casing to a particular gun calls for a scientist.
“Only a firearm examiner who is looking under a microscope can do that,” Waddell-Tingstad said. “IBIS is an investigative screening tool. Just because items correlate in IBIS doesn’t mean it’s a match.”
Wednesday’s filing comes after Illinois State Police Laboratory Director William DeMuth was deposed March 19 in the wrongful conviction complaint. Hanley claims DeMuth, while preparing for his deposition, reviewed the case file and discovered the evidence was not compared through IBIS.
The fifteen parties named in the civil suit were granted a motion to intercede in the certificate of innocence proceedings last month. Pursley’s lawyers unsuccessfully opposed the motion, arguing that the parties didn’t have legal standing to intervene.
“They are trying their dardnest to sully (Patrick Pursley’s) name,” Waddell-Tingstad said. “They are trying to muddy up what really happened here.”
The state’s attorney’s office says the current motion is separate from the proceedings in Pursley’s post-conviction case.
“Pursley was previously granted a new trial and he was found not guilty at the second trial,” Rita Bravo, Hanley’s executive assistant, said in an email. “We are not seeking the reversal of that verdict. Rather, we are objecting to the judge granting of Pursley’s certificate of innocence.”
The case is scheduled for a April 20 status hearing.
With a certificate of innocence, Pursley is eligible for wrongful-conviction compensation of up to $220,000.