Judge William Brady said the situation is so unusual he needs more guidance on what to do -- and more time to review the facts and the law. He asked McCullough's attorneys to clarify in writing how the law would apply to their client's case and told them to return to court on April 15.
"I acknowledge that I'm making this up as I go along," the judge said. He agreed he probably could "skip over" the next step but said he was not inclined to cut corners on a case of such importance to the small town of Sycamore, Illinois.
"Is it something I could skip over? I probably could," Brady said. "Is that something I'm going to skip over? No. ... It's my courtroom, my rules."
The judge, who spent 10 years as a prosecutor in Sycamore, added that he plans to look at the case from all angles -- "360 degrees" as he phrased it.
"Testing the truth is not something I shy from," he said.
Chicago attorney Gabriel Fuentes, a former federal prosecutor, made an impassioned plea for McCullough's release, calling his 2012 conviction "a fundamental miscarriage of justice" that "cannot stand another day."
Standing next to State's Attorney Richard Schmack, Fuentes implored the court to "do justice."
"Doing the right thing here calls for Mr. McCullough to be released."
Fuentes and co-counsel Shaun Van Horn wasted no time in seeking McCullough's exoneration and release. They took the case on Wednesday, filed an emergency petition Thursday and were arguing in court early Friday.
The hearing was called so quickly that there wasn't time to ask prison officials to bring McCullough from the Pontiac Correctional Center to the Sycamore courthouse.
The 76-year-old military veteran and former police officer has spent nearly five years behind bars for a crime he has always insisted he didn't commit. McCullough was arrested in June 2011 and convicted in September 2012 of kidnapping and murdering 7-year-old Maria Ridulph. He was sentenced to life in prison.
The child vanished from a Sycamore street corner in December 1957. It's believed to be the oldest cold case in the nation to go to trial.
Schmack dropped a bombshell
last week when he concluded McCullough is innocent and joined his handwritten petition seeking a declaration of "actual innocence."
Schmack conducted a six-month review of the evidence, saying in a 34-page report that McCullough's arrest and conviction were based on false and misleading testimony: "Intentional or accidental, this testimony resulted in a fraud on both the trial court and the appellate court."
The prosecutor also found that state police investigators and his predecessor as state's attorney, Clay Campbell, "claimed falsely that the victim disappeared earlier than she actually had" in an attempt to negate McCullough's alibi.
Schmack defeated Campbell in an election four years ago, shortly after McCullough's trial.
In his court filing, Schmack said the evidence clearly shows that Maria was kidnapped between 6:45 and 6:55 p.m., and that McCullough used a pay phone at the Rockford Post Office to call home at 6:57 p.m.
Charles Ridulph, the victim's brother, says the evidence can't prove who dialed the phone and suggests that McCullough may have enlisted the help of a friend to establish his alibi. But nobody has offered any proof that occurred.
And so, prosecutors and McCullough's new attorneys agree, it would have been "a material impossibility" for McCullough to commit the crime. He would have had to be in two places at the same time, Schmack concluded.
Schmack's review "left no doubt that Mr. McCullough's conviction in the 1957 murder of Maria Ridulph cannot stand," Fuentes and Van Horn stated in their court papers. The trial, they said, was "an avalanche of errors and denials" that "undermined the State's Attorney's ability to have any confidence in the integrity of Mr. McCullough's prosecution and conviction."
The lawyers quoted liberally from Schmack's report -- and attached a copy.
Their court papers adopted Schmack's wording in charging that McCullough was denied due process at every step of the case: "Even without clear and convincing evidence of actual innocence, which there is, and even if there was some actual untainted evidence of guilt, which there is not, justice would still demand that the conviction be vacated based on the unfair treatment the defendant received from start to finish."
McCullough, then known as John Tessier, was 17 in 1957. He was questioned by the FBI and cleared in the days following Maria's disappearance. But that information, contained in the FBI's 1957 reports, was kept out of his trial as inadmissible hearsay.
The case had long gone cold when the Illinois State Police received a tip in 2008 from McCullough's half sister, who was estranged from him. She reported that their mother had accused him of Maria's murder as she lay dying in 1994.
Eileen Tessier had backed her son's alibi in 1957, but police never got the opportunity to question her again before she died of cancer.
McCullough has always claimed he was 40 miles away, in Rockford, enlisting in the U.S. Air Force the afternoon and evening Maria vanished. He said he had called home looking for a ride, and records indeed show that a two-minute collect call was placed to the Tessier home in Sycamore at 6:57 p.m. -- at about the same time Maria was taken.
According to the timeline established in 1957, Maria was last seen between 6:15 and 6:30 p.m. But Schmack found that at least two witnesses reported they'd been watching television shows that began at 6:30 p.m. Maria's father was watching "Cheyenne" when she came inside the house to fetch a doll. And another neighbor said she was watching "Name That Tune" as Maria and another child, Kathy Sigman, played outside.
Building their case against McCullough, Schmack said, police investigators and prosecutors tweaked the timeline, alleging that Maria could have been taken closer to 6 p.m.
As he parsed the appeals court decision in the case, Schmack added, he learned the court had found the trial judge was wrong when he ruled that the 1957 police and FBI reports were inadmissible hearsay.
In general, Illinois' courts do not accept police reports in the place of witness testimony. But in this case, nearly everyone involved in the initial investigation was dead. The FBI reports could have come in, the appeals court ruled, because they are more than 20 years old and qualify as "ancient documents."
Even after finding that the trial judge, James Hallock, erred in barring the 1957 reports, the appeals court still upheld the conviction.
The recent developments are the result of a handwritten civil court filing McCullough crafted seeking post-conviction relief, his own last-ditch appeal.
McCullough came to court in Sycamore on Tuesday expecting to go home. But the judge told him he needed a legal motion to rule on and said he would appoint him a lawyer. Instead, Fuentes and Van Horn, who work for a large law firm that sometimes performs work for indigent clients, took the case.
McCullough's attorneys also are asking the court to dismiss a request for a special prosecutor, which was filed Tuesday by Ridulph, the victim's brother, who invoked the state's Victims' Rights Act. He said Schmack "ignored" the court's rulings and "all the other evidence" and was "rude and dismissive to our family and made it clear that he was Jack McCullough's advocate" and not the victim's.
But McCullough's new lawyers asserted that the Victims' Rights Act "does not provide for the replacement of the prosecutor by the victim's family or anyone else." Special prosecutors are called for only when a state's attorney is ill or has a personal or financial conflict of interest.
And so, less than 24 hours after agreeing to represent him, Fuentes and Van Horn made this request: "Mr. McCullough respectfully moves the court to enter judgment for him on the pleadings, which are uncontested, and for his immediate release based on actual innocence."
But the judge wasn't ready to take such a huge step without hearing more from the lawyers.
"It isn't as simple. It isn't as straightforward as what's being presented," he said. "Believe me, I go to bed at night most recently thinking about this case as to the right and the wrong and what my role is."