IN THE NEWS

American Bar Association Journal - March, 2002

Attorney for the Damned

By Taking the Cases of People Whose Fates Appear Sealed, This Confident Lawyer Earns Her Self-Applied Moniker

By Stephanie Frances Cahill

Kathleen T. Zellner feels she has an ability to know whether others are telling the truth.

"I think women are particularly good as trial attorneys because they are much more attentive to detail about credibility," Zellner says. "Men will get an impression that someone is lying or not lying, but women will have the details."

For backup, Zellner often runs witness testimony by a friend who is a real estate broker and "has the uncanny ability to tell if people are lying."

"She's very sensitive to the inflection in people's voices," Zellner says.

Zellner also relies on her hairdresser and her personal shopper at upscale retailer Neiman Marcus for advice. "I can hardly get out of the dressing room because I'm running all my cases by her," Zellner says. "Usually I'll find three or four weaknesses in a case, and I'll ask somebody."

Zellner may have an unorthodox research approach to her career as a plaintiffs lawyer in the Chicago suburbs, but it has kept her in good stead. She has won reversals of seven murder convictions based on DNA evidence.

Tall and slender, her voice still holding a trace of southwestern drawl, Zellner has a reputation as a formidable attorney who never does anything on the spur of the moment. Other lawyers say that, in her practice, everything seems to be carefully thought out, with a thorough evaluation of risks. Still, she has taken on and won cases that few lawyers would touch.

Zellner estimates that 90 percent of her practice involves plaintiffs medical malpractice matters, and 10 percent is criminal defense work. In the past four years, she has won $17.7 million in verdicts.

THE ROSCETTI MURDER

One of Zellner's most celebrated cases was winning freedom for three Chicago men who were serving life terms for the murder of Lori Roscetti, a medical student at Chicago's Rush Medical College. Roscetti was raped and murdered in 1986.

Omar Saunders and cousins Larry and Calvin Ollins were found guilty in Roscetti's death. Another defendant, Marcellius Bradford, testified against Larry Ollins and received a six and 1/2-year sentence.

Saunders had sent Zellner a letter asking for help. The men claimed their convictions were based on coerced confessions, and that a Chicago crime lab technician lied about the evidence against them.

Zellner's office gets about 300 letters a month from inmates seeking legal representation. She handles wrongful convictions pro bono, and only takes cases where there is significant DNA evidence in the inmate's favor. Zellner estimates that she agrees to represent 1 percent of the people who write to her.

"I'm not interested in the long, post-petition convictions where they really have no chance," she says. "I'm looking for those cases where you've got somebody without an extensive criminal background, who has been framed."

Saunders' letter said he and the others could not have been linked to the crime through their blood type as the crime lab alleged. Roscetti's killer had type 0 blood, identified through semen. But Saunders said the four men do not have any blood-type enzymes in their nonblood bodily fluids, a circumstance that is quite rare.

"I thought that if what he was saying was true, then he could not possibly have committed the crime," Zellner says.

She hired a DNA expert, who examined the police lab notes and found that none of the four men's blood types matched semen samples from the crime scene. Also, hair at the scene did not match any of the four.

"So they couldn't have done it," Zellner says. Saunders and the Ollinscs were freed last December after almost 15 years in prison. In February, Chicago police arrested two men whose DNA profiles match evidence in the Roscetti murder.

Zellner spent about $250,000 on the case, including her billing rate and fees for expert testimony. She is representing Bradford, Saunders and the Ollinses in a civil rights action against the lab technician, the city of Chicago and Cook County. The suit, Ollins v. O'Brien, No. 02 L 000749, was filed in Cook County Circuit Court in January. Zellner hopes the civil action will get her more attention and help build a national practice on civil rights cases arising from wrongful convictions.

"I think this might be the trial where it's of such national importance that I can affect this area of law," she says.

A self-described political independent with conservative leanings—she likes to go target shooting and believes in the death penalty "in theory"—Zellner says she dreams of being seen as a female Clarence Darrow. As she puts it, "I really think of myself as the attorney for the damned."

If ever someone Was damned, it may have been Zellner client Larry Eyler, who came to be known as the "highway killer" after the bodies of some of his victims were found alongside highways. He was a native Hoosier who favored Marine Corps caps and drove a pickup. In his early 30s, Eyler started picking up men under the guise of consensual sex, with a bit of bondage thrown in. Once he got the victims to a secluded area and handcuffed them, Eyler would brutally beat the victim, then kill him. Most of his victims were found with their pants pulled down and were disemboweled.

Zellner, who at the time was working at a business litigation firm, got the case from the Illinois Capital Resource Center in 1991. She was interested in doing a capital matter at the urging of her law clerks, and Eyler's case had just been returned to the center by a University of Chicago law professor.

JAILHOUSE CONFESSIONS

Eyler was on death row for one murder, which he said he did not commit. However, over the course of a year and a half, he eventually confessed to Zellner that he did commit 21 other murders.

"He would give me one confession, then he would kind of shut down again, so it was back and forth." She says representing him "was difficult because I knew all of the things he had done."
To a certain extent, Zellner thinks Eyler confessed to her because he had AIDS and knew he would not live long. He died at age 41 of AIDS-related complications in 1994.

Two days after his death, Zellner went public with the information at a news conference. Eyler's confessions matched the physical evidence found at the murder scenes, and eventually the 21 cases were closed. "As a defense attorney, you don't have to do something like that," she says. "You can just let somebody die and write a book about it."

A book was written about Eyler. But Freed to Kill: The True Story of Larry Eyler was published by author Gera-Lind Kolarik without Zellner's participation.

Despite her client's confessions, Zellner is confident that, had Eyler lived, she could have gotten him a new trial because there were significant conflict-of-intrest matters in the first trial.

The Eyler experience caused Zellner to rethink who she was willing to represent. After Eyler died, she decided that she would not handle a criminal matter unless she truly believed in her client's innocence.