Wilder “Ken” Berry (Photo by Jennifer Linzer)
In 1991, a 16-year-old Chicago girl accused Wilder “Ken” Berry, a probationary police officer at the University of Chicago, of abducting her at gunpoint and sexually assaulting her. Berry, who had no criminal record, acknowledged having sex with the girl — but he insisted that it was consensual. There was substantial evidence to support his claim, but the lawyer his family had retained, Leo I. Fox, did no investigation. In fact, Fox did not even discuss the case with Berry before his 1992 trial.
Based on the girl’s unchallenged account, the jury found Berry guilty, and Cook County Circuit Court Judge Michael P. Toomin sentenced him to 35 years. After losing his state appeals, Berry received the support of a local news reporter and began mailing information about his case to Chicago law firms, including Winston & Strawn. After an associate interviewed Berry at Stateville in 1996, the firm accepted the case pro bono.
Winston lawyers filed a petition for a federal writ of habeas corpus based on ineffective assistance of counsel in 1997. After an evidentiary hearing, U.S. District Court Judge Robert W. Gettleman granted the writ on November 16, 1999 — eight years to the day of Berry’s arrest. Berry was released on bail two days before Christmas.
The purported victim testified at the 2000 retrial before Judge Edward M. Fiala, Jr., but this time she was impeached by the testimony of defense witnesses who had seen her interacting with Berry in a friendly fashion after the time she had alleged that he had sexually assaulted her. Berry’s claim of actual innocence also was clearly corroborated by both physical and circumstantial evidence, and telephone records. Had Fox done his job nine years earlier, Berry’s wrongful conviction probably would not have occurred.
After his release, Berry became a paralegal and joined Winston & Strawn, where he became actively involved in pro bono cases. He sought a pardon based on innocence, which Governor Rod Blagojevich, a former prosecutor unsympathetic to such requests, denied in 2006. Shortly thereafter, however, Chief Criminal Court Judge Paul P. Biebel, Jr. tacitly acknowledged Berry’s innocence by ordering his police and court records expunged.
— Rob Warden