 Francisco Benitez with his mother, Betty, as he was released. (Photo: WGN TV)
Moments before the shooting, police officers had ordered four members of the ULOG street gang to disperse from a corner just north of where the shooting occurred. Officer Jeff Gale heard gunshots and returned to find both bodies. Three of those who had been ordered to disperse—Angel Centeno, Ralph Gonzalez, and Alex Tappia—were there when Gale arrived.
Centeno and Tappia told Gale that they heard that “Cookie” and “Fat Johnnie” might have been involved. Centeno later reviewed police photo albums of gang members and identified Luis Roman as Cookie, a member of the Latin Kings street gang. Police questioned Roman, and he claimed he had been watching television with a cousin, although he could not say what show they were watching or the address or phone number for his cousin.
Police spoke to Mildred Cotto and Hipolito Rosado, who said they heard the shots while at Cotto’s home at 1247 North Harding Avenue, ran to the window, and saw someone running away. Detective Raymond Schalk’s notes of his interview with them indicated they saw a Latino male, who was about 17 or 18 years old with short brown curly hair, a slight mustache, and wearing black pants, a beige jacket, and a windbreaker, run south on Harding.
There were three others in the home with Cotto and Rosado. However, none saw anyone running away. They said they saw a two-door, mid-sized older model brown car drive south on Harding at a high rate of speed with its headlights turned off.
Chicago police gang crimes officer Joseph Sparks put together a photographic array. He included the photograph of 18-year-old Francisco Benitez, whom Sparks knew. Benitez had prior arrests, but no convictions. Sparks would later testify that he included Benitez because Benitez resembled the description given by the witnesses.
According to police reports, Cotto and Rosado both identified Benitez as the person they saw running away. At about 8 p.m. on April 29, 1989, police arrested Benitez. Benitez’s defense lawyers would later note that the one person known to have run south after the shooting was Cruz, who tried to run back to his house before collapsing. Rosado had said the person he saw was chubby. Cruz was “mildly obese,” according to the autopsy report. He also had curly hair and a light mustache, as Cotto had described.
Benitez was interviewed by detectives Jerome Bogucki and Raymond Schalk. He denied being involved and said that on the day of the shooting, he had gotten a haircut and then, at about 7 p.m., went to the home of Tomas Ontiveros. There, he watched television with Ontiveros’s 10-year-old daughter, Soccorro. He said that around 7 p.m., he and Soccorro had walked to a store to buy a few items and were back at 7:45 p.m. He said he left at around 10 or 10:30 p.m.
The detectives then interviewed another witness, Noemi Espinosa, a neighborhood resident who said that after she heard gunfire, she looked out her window and saw a Hispanic male running south on the sidewalk. She did not see the man’s face, but, according to the police report, she said the person looked “as if he had recently gotten a haircut.”
The detectives resumed their interrogation. At 5:10 a.m. on April 30, Benitez signed a handwritten statement implicating himself in the shooting. According to the statement, Benitez was walking through an alley and reached Harding Avenue where he saw several males who flashed gang signs indicating they were opposed to the Latin Kings. One of the males pulled a gun and fired three or four times at Benitez, but missed. According to the statement, Benitez then pulled a .22-caliber pistol, fired multiple shots in return, and then ran away, tossing the gun an alley along the way.
The statement contradicted known facts. No witness reported hearing more than two or three shots, and no witness reported hearing an exchange of gunfire. There were only four males at the corner, and they had been dispersed by the police before the shooting. There were no shell casings, bullets, bullet holes, or other crime scene evidence to reflect multiple gunshots from two guns. No .22-caliber gun was ever recovered. According to witness Raymond Rosado, the gunman fled in a car, not on foot.
Benitez was charged with two counts of first-degree murder. The Cook County State’s Attorney’s Office sought the death penalty.
Prior to trial, Benitez filed a motion seeking to suppress his statement, claiming that Bogucki and Schalk promised he would be released if he signed the statement. During a hearing on the motion, the detectives denied they made such a promise. The motion was denied.
In August 1991, Benitez went to trial in Cook County Circuit Court. Cotto and Hipolito Rosado testified they heard shots, ran to the window, and saw someone running south. For the first time, they both said that the person stopped outside their window and looked around, allowing them to see his face. Cotto said the person looked around for one second. Rosado said the person turned for two seconds.
Both testified they identified Benitez in a live lineup. Both identified him in the courtroom as the gunman. Cotto admitted they were looking through a window curtain and that a street light was shining on the back of the gunman’s head.
Espinosa testified she heard gunfire, looked out her window, and saw a person standing below her window at 1255 North Harding Avenue—north of where the shooting occurred. She said the person had short, shaved sides of his head and a long bushy tail in the back. She did not see a gun, and she did not see his face. She said she never saw anyone running south, as Cotto and Rosado had testified.
Gang Crimes officer Joseph Sparks testified that he showed the photo lineup to Cotto, who selected Benitez as the gunman. Sparks testified that Luis “Cookie” Roman had been a suspect early in the investigation. He also said he did not know Benitez to have ever been convicted of a crime.
Bogucki testified and denied committing any misconduct during the interrogation. He denied that the detectives had promised to release Benitez after he signed the statement. He testified that Cotto and Rosado had both identified Benitez in a lineup.
Benitez testified and denied involvement in the shooting. He said that he repeatedly denied involvement to the detectives, one of whom brandished a flashlight in a menacing fashion. He said he thought he was going to be struck with it. The officers refused his requests to speak to his mother and ultimately told him they would prepare a statement saying he shot the victims in self-defense. They promised he could go home if he signed it, Benitez testified. He also denied that he had been taken out to look for the gun after signing the statement.
Benitez also described his whereabouts during that day, including picking up his paycheck on South Morgan Street, going to the Brickyard Mall, then to a barber shop on Grand Avenue to get a haircut, and then to the home of Tomasa Ontiveros where he watched television with Ontiveros and Soccorro until 10 to 10:30 p.m. He said he and Soccorro and Ontiveros walked to a corner store to buy limes, a TV Guide, and dish soap, and were back around 7:45 p.m.
Ontiveros and Soccorro testified that Benitez was with them that night.
In rebuttal, the prosecution called Gang Crimes officer Paul Zacharias who testified that after Benitez signed the statement, Benitez and Zacharias went out to look for the gun. Zacharias admitted he never wrote a report about taking Benitez out to look for the gun. Bogucki and Schalk did not include any statement in their closing report about Benitez being taken out to look for the weapon.
Sparks was recalled, and he testified that Ontiveros had not told him about going to the store. Schalk was recalled as well to say that Benitez had never mentioned Soccorro being present when he was at Ontiveros’s home.
The defense argued during the closing arguments that, given the lighting and the circumstances, the identifications of Benitez were mistaken. The defense contrasted Benitez’s statement with the facts to argue that the statement was coerced by Bogucki and Schalk.
On August 16, 1991, the jury convicted Benitez of two counts of first-degree murder. Judge Barbara Disko denied the prosecution request to impose the death penalty. She sentenced Benitez to life in prison without parole.
In September 1995, the First District Illinois Appellate Court upheld Benitez’s convictions and sentence.
In 2021, Benitez, represented by attorneys Joshua Tepfer, from the Exoneration Project at the University of Chicago Law School, and Anand Swaminathan, of the firm of Loevy & Loevy, filed a post-conviction petition seeking to overturn the convictions.
The petition cited statements from two witnesses who said they saw the shooting and that Benitez was not the gunman. The petition also noted that Bogucki and Schalk had been involved in the wrongful murder conviction of 13-year-old Thaddeus Jimenez and testified falsely at Jimenez’s trial.
Jimenez had been exonerated of murder in 2009. He subsequently filed a federal lawsuit and won a $25 million jury verdict.
In addition, Bogucki and Schalk had led the investigation of a 1990 shooting that resulted in the wrongful conviction of James Fletcher Jr., who had been exonerated in 2020. During that investigation, Bogucki and Schalk showed a potential eyewitness to the shooting a single photograph of Fletcher and said he was a “bad guy” they wanted to get off the street. When another witness was shown a photographic lineup and picked someone other than Fletcher, the detectives moved the witness’s finger to Fletcher and said that he was the gunman.
The petition cited examples of what it said were Bogucki’s “demonstrable lies.” Bogucki had claimed the firearms analysis report was not submitted until a week after Benitez signed the statement, but in fact the report was submitted on May 1, 1989—one day after the statement—and said the bullets from both victims were .22-caliber. The petition also noted that James Treacy, a Chicago police officer, testified that he received the bullet from Cruz’s body on April 29—the same day Benitez was arrested—and determined it was a .22-caliber slug. And, the medical examiner’s report, submitted at 2:50 p.m., before Benitez was arrested, said: “one small hollow point lead bullet recovered from the body,” and in parentheses said, “22?”
In addition, Bogucki and Schalk submitted reports saying that both Cotto and Rosado identified Benitez from a photographic lineup. Based on trial testimony, only Cotto had done so. “The purported photo identification by Rosado was simply made up,” the petition said.
In April 2023, a hearing on the petition was held before Cook County Circuit Court Judge Sophia Atcherson.
Andrew Ruiz testified that at the time of the shooting, he was 10 years old and lived at 1237 North Harding Avenue. He said that he and his 12-year-old brother, Samuel Garcia, were looking out of their second floor window when they heard someone say, “Unknown killer.” He said he then saw two teenage boys whom they knew—they sometimes played ball together—run toward Cruz and Sanchez. One of the boys, who Ruiz identified as “Mickey,” began shooting at Cruz and Sanchez.
Ruiz said that Mickey and the youth, whom he knew as “Mono,” were members of the ULOG street gang. Ruiz said that after the shooting, Mickey handed the gun to Mono, and they ran east on Potomac Avenue. Ruiz said Benitez was not involved.
Ruiz also testified that later, Mickey thanked him for not telling anyone what he said. On a few occasions, Mickey gave Ruiz and his brother money to keep quiet.
Garcia testified that he was 100 percent certain that Mickey was the gunman. He said their mother told him and Ruiz not to tell anyone what they saw.
Joseph Sparks testified about a statement he signed in May 2022 in which he said he only put Benitez’s photograph in the lineup as a “filler.” He said he was shocked when Benitez was identified. At the time, he had another suspect, Luis “Cookie” Roman, in mind based on the physical description given by the witnesses. Sparks said it was the one case in his career that bothered him because he believed Benitez was innocent.
Maria Pina testified that she and her boyfriend, Johnny Mercado, who was a friend of Benitez, went to Sparks’s home in 2021 to talk to him about the case. At that time, Sparks told them he believed Benitez was innocent, Pina said.
Dr. Nancy Franklin, an eyewitness identification expert from Stony Brook University, testified that she had reviewed the evidence in the case. She testified that it was very unlikely that the witnesses saw Benitez in front of their home and that Cotto and Rosado did not have enough exposure to the man’s face to accurately encode the face into their memory. She said there was a high likelihood the identifications were mistaken.
On August 29, 2023, Judge Atcherson vacated Benitez’s convictions. The judge ruled that Ruiz and Garcia “testified credibly that they saw Mickey shoot and kill Prudencio Cruz and William Sanchez, not Mr. Benitez.”
The new evidence that Mickey and Mono ran north on Harding contradicted Cotto’s and Rosado’s testimony that the gunman ran south. The judge said the new evidence “makes it more likely than not that the person running south…was actually Prudencio Cruz…This is consistent with the fact that Cruz’s body was found in the yard of a house that was south of the house where Cotto and Rosado were looking out their window.”
On August 29, 2023, Benitez was released on bond pending a retrial. He had spent 32 years and 14 days in prison since the date of his conviction and more than 34 years in custody from the date of his arrest.
In December 2023, Benitez was awarded a certificate of innocence, paving the way for him to seek compensation from the state of Illinois. Benitez also filed a federal civil rights lawsuit against the city of Chicago.
– Maurice Possley
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