U.S. Judge Michael McCuskey has ruled federal prosecutors can use incriminating statements an accused killer in a 2007 Danville triple murder made under a grant of immunity from prosecution because he violated his immunity agreement.
McCuskey's decision this week clears the way for a Dec. 3 jury trial of Fredell Bryant at the U.S. Courthouse in Urbana. In his ruling, McCuskey rejected defense arguments that Bryant's agreement to cooperate with federal prosecutors had expired and that Bryant was under no further obligation to cooperate when he refused to testify about the murders before a federal grand jury in April 2011.
In extensive statements made under separate immunity agreements with both federal and state prosecutors, Bryant implicated himself, David Moore and Jerome Harris in a variety of criminal activities, including the March 27, 2007, drug-related killings of a man and two women at an apartment building on East Main Street in Danville.
Authorities found the body of Rodney Pepper, 30, in the street and those of the women, Madisen Leverenz, 19, and Tabreyana "Tutu" McCullough, 21, inside the apartment building.
"This court holds ... that the federal authorities were permitted to leverage his earlier use immunity agreement to compel him to testify regarding the homicides. Because the federal cooperation agreement was still binding on (Bryant), the government requested (Bryant) testify before the grand jury, and (Bryant) refused to do so, (Bryant) must be found in breach of his cooperation agreement. Therefore, the government is not bound by its previous promise not to use his statements against him," McCuskey wrote in a 22-page decision.
Ironically, on the same date Bryant goes to trial at the federal court in Urbana, one of the shooters he implicated, Jerome Harris, is scheduled to go to trial at the Vermilion County Courthouse in Danville.
Harris also is charged with murder. But he is scheduled to go to trial in connection with unrelated drug charges before he is tried for murder.
Charges against the third alleged shooter, David Moore, were dismissed by State's Attorney Randy Brinegar.
McCuskey held a hearing Friday to finalize trial details. But even as he was wrapping up trial-related business, the defense indicated interest in reaching a plea agreement with the government.
"You always have to look at that as an option," said defense lawyer John Gray Noll of Springfield.
Already serving 25 years in prison for a drug conspiracy, Bryant faces up to life on the murders.
Noll saved his client from the death penalty when U.S. Attorney General Eric Holder rejected federal prosecutors' request to make this a death case.
Now Noll's goal is to help his client escape a life sentence. He briefly discussed with McCuskey the possibility that a guilty plea might result in the judge's order that Bryant serve consecutive sentences, the drug charges first and then the murders. But McCuskey told Noll that he's "not a 'consecutive' guy."
Noll indicated that he would prefer a "conditional plea agreement" allowing Bryant the possibility of release someday while still permitting Noll to appeal McCuskey's decision on the immunity issue.
Those are stark legal issues, devoid of humanity. The personal side of the case was reflected by the presence Friday of Mac Leverenz, father of Madisen Leverenz, and Bonne Beecher of Indianapolis, the grandmother of Tabreyana "Tutu" McCullough
Leverenz made no attempt to hide his bitterness.
"It's too bad (Attorney General) Eric Holder didn't give (Bryant) the death penalty. I'd like to see him die," he said.
A more restrained Beecher made it a point to wave to Bryant both when she arrived and left the courtroom, saying that she had told him after her granddaughter's death that she would see him held accountable.
"I need for him to see that what he did mattered to somebody," Beecher said.
The triple homicide resulted from fallout over a drug dispute.
Bryant was a key player in a Chicago-to-Danville drug conspiracy, storing drugs at McCullough's Danville residence. Prosecutors say Leverenz stole 2 kilograms of cocaine from the McCullough residence, prompting McCullough to tell Bryant that Leverenz was the only one who knew she had the cocaine.
Bryant, McCullough and Bryant's two associates then went to the apartment where Leverenz and Pepper were staying. Bryant fatally shot Pepper when he jumped through a window to escape. The two women then were shot.
Shortly after the murders, Bryant was indicted in connection with the drug conspiracy, prompting Bryant's lawyer to offer Bryant's cooperation in exchange for a reduced sentence.
Bryant did cooperate, telling authorities about his criminal activity. Bryant's lawyer also negotiated a separate immunity agreement with Vermilion County authorities, and Bryant also talked at length with them, including about the murders.
Bryant's state plea agreement did not include any agreement to testify in state court. State's Attorney Brinegar said Friday that he was unable to win Bryant's cooperation on that point and proceeded without it because he needed Bryant's testimony to corroborate evidence against the other two shooters.
Hoping that he would testify about the murders anyway, state authorities called Bryant before a state grand jury. After Bryant refused to testify, federal prosecutors called Bryant before a federal grand jury to testify, where he again refused.
Bryant's lawyer, Noll, argued that Bryant's duty to cooperate expired at the conclusion of Bryant's sentencing hearing in federal court, a claim that threatened to blow a hole in the government case. The legal issue to be resolved, McCuskey said, involved the "scope" of the immunity agreement.
"Not only do they seek to prosecute (Bryant) for the murders, but they also seek to use his own admissions of culpability, recorded during the January and February 2010 interviews with state authorities, against him. ... The critical issue is thus: How far does a cooperation agreement extend in jurisdiction, subject matter and time?" he wrote.
McCuskey relied on the plain language of the plea agreement to conclude that Bryant's obligations did not expire at the end of his sentencing hearing.
"The text of the contract does not indicate that (Bryant's) obligation to cooperate or testify ceased after sentencing hearing. There is no explicit terminus, and thus, there is no reasonable reading to suggest there were some end to (Bryant's) duties," McCuskey wrote.
The court has set aside eight days for Bryant's trial, but lawyers indicated it might not take that long.
Jim Dey, a member of The News-Gazette staff, can be reached by email at firstname.lastname@example.org or at 351-5369.