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David Dowaliby

Other Chicago Exonerations with Child Victims
David Dowaliby was convicted in 1990 of the murder of his adopted daughter, 7-year-old Jaclyn Dowaliby, who had disappeared from the home she shared with her parents, grandmother, and younger brother, Davey, in Midlothian, Illinois, a south suburb of Chicago.
David and his wife, Cynthia, Jaclyn’s biological mother by a prior marriage, reported Jaclyn missing on September 10, 1988. They told police they had discovered a broken basement window through which an intruder must have entered to abduct Jaclyn. But investigators found more glass on the ground outside the house than in the basement, and concluded that the window had been broken from inside in an effort to conceal what actually had happened.
Jaclyn’s body was found on September 14 in weeds and brush behind the parking lot of an apartment complex in nearby Blue Island, Illinois. Her death was attributed to strangulation. Two days later, police canvassed residents of the apartments behind which Jaclyn’s body had been found. Among those interviewed was Everett Mann, who had aspired to be a police officer but had been rejected because he suffered from bipolar disorder. Mann claimed that at about 2:00 a.m. on September 10 he had seen someone with “a large, straight nose” pulling away from what he later learned was the location of the body. He said he could not tell whether the person was a man or a woman, but thought he or she was Caucasian. He described the car as dark-colored—“dark blue, navy blue, black, dark brown.”
Later, at the Midlothian police station, Mann was shown an array of photographs of possible suspects and asked which nose structure most resembled the one he had seen. He identified David Dowaliby. In subsequent interviews, Mann’s description of the car changed. First, it had been merely dark-colored. Then it became midsized. Then “the latest seventies version of the Chevy Malibu.” Finally, “about a 1979 Chevy Malibu.”
Cynthia Dowaliby owned a 1980 Chevrolet Malibu. It was light blue, not dark, but the police surmised that it might somehow have appeared to be dark. The car was forensically examined, but there was no evidence that a body had been transported in it.
Robert Clifford, the head of south suburban prosecutions for the Cook County State’s Attorney’s Office, was skeptical of Mann’s identification. He enlisted Blue Island police chief Paul Greves to join him in an experiment—a reenactment of Mann’s identification of a man with a big nose from 75 yards away. They concluded that it was impossible to see a nose structure from that distance.
But Clifford was not in charge of the prosecution. Patrick O’Brien, the head of the office’s Felony Trial Division, was. Based on Mann’s purported identification of David and the assumption that the window had been broken from inside, O’Brien obtained grand jury indictments on November 22, 1988, charging David and Cynthia with murder and concealing a homicide. They were arrested immediately.
The very next day, O’Brien received a forensic report incontrovertibly establishing that the force that had broken the Dowalibys’ basement window had come from outside. Apparently, perhaps to minimize noise, whoever had broken the window had punctured it and then removed several large pieces of the glass, placing them outside on the ground.
But O’Brien was undaunted by the forensic findings. The Dowalibys remained in jail until friends and family members posted bond, securing Cynthia’s release on December 15 and David’s the next day.
While the case was pending, Robert Clifford, who had left the State’s Attorney’s Office, informed the Dowalibys’ defense lawyers that Greves had a tape recording of the police interviews with Mann. In response to a defense subpoena, O’Brien surrendered the recording. It had been withheld in violation of the law, but O’Brien claimed he had been unaware of its existence until he asked Greves about it after receiving the subpoena. Once the defense had a copy of the recording, Mann could no longer alter his story to make the identification stronger.
On April 5, 1990, the Dowalibys’ joint trial opened before Cook County Circuit Court Judge Richard E. Neville. At the conclusion of the prosecution case on May 1, Neville directed a verdict of not guilty for Cynthia, holding that the evidence against her was insufficient to sustain a guilty verdict.
Although the only substantive difference in the evidence against Cynthia and that against David was the purported identification by Everett Mann, Neville left David’s fate to the jury. On May 3, after 14 hours of deliberation, the jury convicted him. Neville sentenced him to consecutive terms of 40 years for murder and 5 years for concealing a homicide.

In July 1990, the Chicago Tribune published a two-part series by David Protess, a professor at Northwestern University’s Medill School of Journalism, based on the interviews with the Dowalibys. As a result, one of the trial jurors contacted Protess, telling him that she regretted the verdict but had “caved in” to pressure from other jurors.
Protess then teamed up with Paul Hogan, an investigative reporter for WMAQ-TV in Chicago. Protess and Hogan discovered the undisclosed experiment that had led Clifford and Greves to conclude that it was impossible to see a nose structure from 75 yards away and that Mann had been diagnosed as suffering from bipolar disorder.
Hogan also broadcast an interview with Mann, who noted that O’Brien, the lead prosecutor, had a nose more prominent than David’s. If O’Brien’s photo had been in the array he was shown, Mann proclaimed, he would have identified O’Brien.
On October 30, 1991, the Illinois Appellate Court unanimously reversed David’s conviction, without the possibility of a retrial, holding that Neville had erred in not directing a verdict in David’s case, as he had done in Cynthia’s.
Cook County State’s Attorney Jack O’Malley announced that he would appeal to the Illinois Supreme Court and, meanwhile, would oppose David’s release on bond. On November 11, over O’Malley’s objection, the Supreme Court set bond and, after depositing it, David was released two days later. He had spent 583 days behind bars, counting 24 days in jail after his 1988 arrest.
On February 5, 1992, the Supreme Court rejected O’Malley’s appeal, officially ending the case.
Nine months later, NBC’s “Unsolved Mysteries” broadcast a segment on the case, resulting in a tip that an early suspect in the case—Timothy Guess, a paranoid schizophrenic brother of Jaclyn’s natural father—had provided a false alibi for the night Jaclyn disappeared. Guess had told police and the FBI that he had spent the entire night at an all-night restaurant in south suburban Harvey.
Two waitresses had corroborated the alibi at the time, but they told Protess and Hogan that in fact Guess had been there only briefly around 9:30 p.m. They said they had lied because they believed that the Dowalibys were guilty and did not want to get involved. Several customers who had been at the restaurant, who had never been questioned by police, also said Guess had not been there.
In addition, Protess and Hogan learned that another waitress at the restaurant, Margaret Murphy, lived in the apartment complex where Everett Mann lived—and that Guess often had driven her home. Murphy told Hogan that she had never been questioned by police but, before the Dowaliby trial, prosecutors had instructed her not to talk to the defense lawyers.
On December 17, 1992, Protess and a colleague conducted a taped interview with Guess, who said he had begun hearing voices when he was a young child, had been in and out of mental institutions, had suffered repeated blackouts, and had taken various drugs, legal and illegal, for much of his life. Since age 16, Guess said, he had been guided by “a spirit” who “gives me psychic powers”—powers that enabled him to precisely describe the layout and interior of the Dowaliby home, where he had never been. When asked how to get to Jaclyn’s room, he said, “I walked past Davey’s room,” quickly adding, “That was the spirit talking, not me. I didn’t say nothin,’ I just released information.”
Guess adamantly insisted that he had been at the Harvey restaurant the entire night that Jaclyn disappeared. When asked why customers and waitresses would say otherwise, he explained: “Maybe I was invisible that day. The spirit can help me do that. I was there physically, but no one could notice me.”
On January 4, 1993, a spokesman for the Cook County State’s Attorney’s Office announced that the investigation into Jaclyn’s murder had been reopened, but nothing came of the investigation. In 1996, CBS aired a two-part, made-for-TV movie about the case—“Gone in the Night” based on a book by the same title—featuring extensive verbatim quotes from Timothy Guess.
— Rob Warden

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Posting Date:  Before June 2012
Most Serious Crime:Murder
Additional Convictions:Other Violent Felony
Reported Crime Date:1988
Sentence:45 years
Age at the date of reported crime:31
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence
Did DNA evidence contribute to the exoneration?:No