It was the first time in years that the 38-year-old identical twin brothers had seen each other. Their mother wept as she looked on. But this was no typical family reunion. Karl Smith was on the
witness stand Thursday at the Leighton Criminal Court Building, making
an admission seemingly ripped from a made-for-TV movie. Smith confessed to a
murder that his brother, Kevin Dugar, has been in custody for since 2003.
"I'm
here to confess to a crime I committed that he was wrongly accused of,"
Smith testified moments after taking the witness stand.
His
mother, Judy Dugar, cried as she listened from the courtroom gallery,
while his brother, sitting at a table with his lawyer, wiped tears from
his eyes.
But Cook County prosecutors questioned the stunning
admission, telling a judge that Smith came forward only after an appeals
court upheld his own conviction for attempted murder. He is serving a
99-year prison sentence for taking part in a home invasion and armed
robbery in which a 6-year-old boy was shot in the head in 2008.
"He's got nothing to lose" by taking the blame for his brother's murder rap, said Assistant State's Attorney Carol Rogala.
She also told Judge Vincent Gaughan that Smith's confession didn't "fit the independent eyewitness accounts of what happened."
It is unclear when Gaughan will decide if Dugar should be given a new trial.
Dugar's
lawyer, Karen Daniel, a Northwestern University law school professor
who directs its Center on Wrongful Convictions, said the evidence
against Dugar was razor-thin — no confession or physical evidence but
the testimony of two eyewitnesses, including one who recanted at trial.
The
two brothers, who dressed alike until eighth grade and impersonated
each other for years afterward, still looked identical Thursday with
their shaved heads and close-cropped beards. Only their clashing prison
clothes set them apart. Smith is doing his time at Menard Correctional
Center; Dugar at Stateville Correctional Center.
Growing up, the
twins were closer than brothers — they were "one person" who shared
socks, shoes and even sandwiches, according to their mother and Smith.
Even
their parents couldn't always tell the brothers apart, and on Thursday,
Smith struggled to identify himself when shown a photo of the two of
them.
Their mother, whose maiden name Smith later adopted, spent
much of the day in tears, happy to be in the same room as both of her
sons for the first time in years, even if it was a courtroom. She
doesn't drive and hasn't visited them in state prison.
But she said she was hurt that prosecutors doubted her son's story that he was the real killer.
"He wouldn't lie about that," she said.
Veteran
lawyers at Cook County's main criminal courthouse could not recall
another case quite like this one — a scenario some said seemed more out
of a law school exercise.
But Michael Winston was released from
prison in 2012 after six years behind bars for a South Side murder after
his older brother, Robert, who looked similar, confessed that he was
the actual killer, said Winston's attorney, Jeffrey Urdangen.
And
in New Mexico, shortly after Joseph Montoya was convicted of
second-degree murder in 2000, his identical brother, Jeremy, came
forward to claim he was the actual killer. But the trial judge and
appeals courts rejected the claim, finding the twins had "colluded,"
according to court records.
In the slaying at issue in Thursday's
hearing, a gunman dressed in black shot into a group of three people
near Sheridan Road and Argyle Street in March 2003, killing Antwan
Carter and wounding Ronnie Bolden.
Bolden, who was shot three
times, later identified the gunman as "Twin," the street name used by
Smith and Dugar, who frequently impersonated each other.
"We was
acting as one," testified Smith, who admitted he and his brother were
gang members who dealt drugs. "Where I was, he was, acting like each
other. He pretended to be me, and I pretended to be him."
Smith
told the judge he was stopped by police not long after the killing but
identified himself as his brother and was allowed to leave.
At
trial, Bolden admitted that he didn't identify Dugar as the gunman for
more than a month after the shooting because he planned to settle the
matter "on the street," according to Dugar's petition for the
post-conviction hearing. Bolden was a member of Black P Stones, a gang
then feuding with the twins' gang, the Conservative Vice Lords.
Bolden
identified Dugar in a photo lineup that did not include Smith,
according to the petition. The other eyewitness, Monique Boykins, who
was 16 at the time of the shooting, recanted at trial and testified
Bolden told her to identify Dugar as the gunman to police.
A jury convicted Dugar of first-degree murder in 2005, and Judge Gaughan sentenced him to 54 years in prison.
Daniel maintains that Smith's confession is newly discovered evidence that Dugar's trial attorney could not have uncovered.
Dugar
had asked his brother if he had been the gunman before the trial, Smith
testified Thursday, but he said he denied it at the time.
Smith said he never told anyone he committed the homicide until he wrote his brother a letter three years ago.
"I
have to get it off my chest before it kills me," Smith wrote in tiny
handwriting to fit as much as he could on each page. "So I'll just come
clean and pray you can forgive me. … I'm the one who and shot and killed
those two Black Stones on Sheridan that night."
When Smith didn't
hear back from his brother, he wrote him again a few weeks later in
October 2013, confessing to the murder again and asking for his
brother's forgiveness.
"The reason I didn't say (expletive) at the
time was because I didn't and couldn't find the strength to do so at
the time," Smith said in the letter, admitted into evidence.
This
time, Dugar wrote back and asked Smith to contact his lawyers. Smith
signed a sworn statement confessing to the murder in 2014.
On
Thursday, Smith testified that he threw a party the night of the murder
but decided to leave with a close friend to buy marijuana.
After
parking at Sheridan and Argyle, Smith was crossing the street when a
truck pulled up and he was confronted by Bolden and Carter, he
testified.
Smith said he opened fire with a .38-caliber handgun,
saw Carter fall to the ground and then pulled out his .32-caliber pistol
and fired at Bolden as he backed up, Smith testified. He said he then
ran back to the friend's car.
"I took a deep breath and told him to … just drive and go to the liquor store," Smith said.
They then returned to the party, where Smith changed clothes and later went clubbing with his brother, he said.
After his brother's arrest, Smith said he didn't come forward
because he thought his brother would be cleared of the killing. He even
sat in on at least one day of the trial, taking a seat in the back of
the courtroom.
"I didn't have the strength to come forward," Smith said. "I thought it was the job of the police to catch me."
He testified he found God in prison and realized he needed to set his past wrongs right.
But prosecutors questioned his sincerity. Police repeatedly asked Smith to come in for questioning but he never did, they said.
"You never gave witnesses in this case the chance to see you together to pick out the right one, correct?" Rogala asked.
"Correct," Smith replied.
The
twins' father, Isaiah Dugar, 68, died last month from a heart attack,
an ending their mother said was quickened by the pain of seeing both
their sons behind bars for violent crimes. The couple also had two
daughters.
"I hope Kevin will get out. I hope he change his whole
life around," said the mother, crying in the courthouse lobby. "He got
to."
