The frightened witness and the long-hidden memo: Plea deal in murder case has startling back story

Three eyewitnesses identified Zeron Moody as one of two shooters who opened fire in a neighborhood park and killed 19-year-old Fontaine Sanders.

Two of those people named Terreon Gathings as the other gunman.

And there was a security video, Facebook postings and a fingerprint linking Moody to the stolen car used in the shooting to back up their testimony.

Yet the Cook County state’s attorney’s office recently dropped murder charges against Moody and Gathings, allowing them both to plead guilty to aggravated battery with a firearm instead.

The shooters had each faced up to 66 years in prison for killing Sanders, a college student who had just finished playing basketball in a neighborhood park, in 2017. Instead, both agreed to a 174-month plea deal that even the judge considered overly favorable. With time already served in jail, they will be released from prison in as little as six years.

To better understand why a case that had seemingly strong evidence ended with such an attractive deal for the teen’s killers, Tribune reporters obtained thousands of pages of court documents, hearing transcripts and interviews with key players.

That examination revealed a series of actions by the office of Cook County State’s Attorney Kim Foxx that run counter to her reputation as a reform prosecutor determined to address wrongs from within the system. Among them:

• A veteran prosecutor in Foxx’s office allegedly intimidated and insulted a frightened witness who had expressed reluctance to testify to a grand jury, calling her disgusting and threatening her with criminal charges.

• The office waited nearly two years to investigate the conduct of that prosecutor, Nick Trutenko, ultimately producing an internal memo that castigated him for his alleged behavior and noted it might rob the witness’ testimony of its value.

• That memo, written by a top Foxx aide, initially was not given to Moody and Gathings’ attorneys even though the law requires prosecutors to turn over records that could be deemed favorable to defendants.

• When the document surfaced in an unrelated court proceeding, an assistant state’s attorney defied a judge’s order to turn it over and took the highly unusual step of asking to be held in contempt.

Trutenko’s attorney has said Trutenko did not acknowledge wrongdoing in connection with the witness. Trutenko is slated to go on trial next week on charges of perjury, obstruction of justice and official misconduct in a separate criminal case. He has pleaded not guilty.

After the attorneys for Moody and Gathings finally received the memo about Trutenko’s alleged threats, they issued a subpoena to the Foxx aide in hopes of compelling her to testify about it at trial. The office planned to object to her being called as a witness, though court records show the case never progressed to the point where a judge was asked to rule on it.

Prosecutors offered the plea deal a short time after the subpoena was issued, telling the defense that their star witness had grown apprehensive. Amid her ongoing concerns that she may face retaliation for her cooperation, she had moved her family out of state and wanted nothing to do with the case.

At the men’s recent sentencing hearing, the judge made a point of addressing the lenient nature of the agreement, court records show.

“The break that you’re getting, in my opinion, isn’t fair but it is what it is,” Circuit Judge Thomas Byrne said last month. “What you do with it is entirely up to you.”

The deal also outraged Sanders’ mother, who attended court hearings for years in hopes of justice for her son. Amid her grief, she is now working with an attorney to try to understand the disappointing outcome of the case.

Foxx and other members of her staff declined to be interviewed for this story about why they did not take Sanders’ shooters to trial after more than six years of court delays, releasing only a short statement saying their decision was based on “facts and evidence.” The three-sentence response did not address the allegations against Trutenko.

“The Cook County state’s attorney office is committed to the pursuit of justice for safer and more equitable communities,” it read. “We prosecute cases based on the facts, evidence and evaluate case facts at the time of the decision. In applying the facts and evidence in the cases of Zeron Moody and Terreon Gathings we reached an agreed upon disposition with the defense.”

Multiple sources told the Tribune that Foxx did not know about the allegations involving Trutenko and the witness or about the internal review until years after the incident.

But Moody’s defense attorney, Matt McQuaid, said the memo and the effort to shield it from public view raise issues of fairness and integrity that go beyond the outcome in his client’s case.

“The buck stops with Kim Foxx,” McQuaid told the Tribune. “She hates to admit that, but it does. This is some old-school (expletive) that they clearly tried to hide.”

A mother’s pain

On April 10, 2017, Sanders went to play basketball with friends at a North Lawndale park before the forecasted thunderstorms hit later that day. He was a student at Robert Morris University, working toward his dream of becoming a physical therapist.

The game wrapped up around noon and he called his mother, Corniki Bornds, to say he wanted to grab something to eat with friends. She encouraged him to come home instead because his grandmother was making lunch.

Moments later, a silver Pontiac Grand Prix drove past the park and stopped a few feet from the basketball court. Two men exited the car, ran toward the court and fired at least 16 shots into the crowd, according to police reports, sending a bullet through Sanders’ head and wounding another young man.

Sanders — a beloved only child who played drums at church, loved the L.A. Lakers and worked as a janitor to help pay his college tuition — died the next day at Mt. Sinai Hospital.

Authorities said Sanders had no gang ties. He was simply walking with a group in an area controlled by a gang faction that was feuding with the crew to which Moody belonged.

“That’s why my pain is so heavy,” his mother wrote in a letter to the court. “I know my son didn’t have the mind or heart to harm anyone in a way that would cause him to be treated like this.”

Police records show officers spoke with a 34-year-old woman at the scene who witnessed the shooting through her first-floor apartment window. She told the police she didn’t feel comfortable talking with them in a public area and promised to talk to detectives at Area Central headquarters.

Two days later, she made good on that promise and sat down to answer questions. Records show, however, she expressed concerns about doing so.

The witness “stated that she was afraid to memorialize her statement,” one detective wrote. “She had fears about testifying in the case down the road because she had children and didn’t want anyone to retaliate against her family.”

In spite of her concerns, the woman identified one of the shooters as Moody, a longtime family friend. Law enforcement records show she also went to Moody’s Facebook page and showed police a picture of Gathings, then 17, who she said was the other shooter.

She gave detailed descriptions of both guns used in the shootings and picked the men out of two photo arrays. She described the silver-colored hat and jacket Moody wore, saying she had seen him wearing both articles of clothing at a gas station two weeks prior to the shooting.

She would be the first of three people to tell detectives that Moody, then 20, was the shooter, according to law enforcement records. The owner of the Grand Prix used in the shooting also named Moody as the person who stole his car.

Police reports indicate the Moody family friend and another eyewitness identified Gathings as one of the two shooters.

Detectives also uncovered corroborating evidence, including security camera recordings that did not capture the shooters’ faces but clearly showed what they were wearing. Authorities secured warrants for the men’s Facebook pages, where they found a picture of Gathings wearing the same clothes as one of the shooters a day prior to the slaying and posing with a woman and a gun similar to the one used to shoot Sanders.

The photo was posted on the day of the shooting, according to the police report.

The woman in the photograph told detectives that she had seen Gathings, Moody and another man in a silver Grand Prix the day before Sanders’ killing. Moody’s fingerprints also were found inside the stolen car, according to a Chicago police report detailing results of an Illinois State Police crime lab analysis.

‘A beautiful, star witness’

On May 23, 2017 — about six weeks after the shooting — Moody’s family friend appeared before the grand jury to testify about the incident. According to court records, the woman expressed reluctance to answer questions about the case and drew the attention of Trutenko, a hard-boiled veteran prosecutor serving as a deputy in the division that reviews cases to determine whether felony charges are warranted.

The events that followed would haunt Sanders’ murder case for the next several years and become the subject of a 2019 internal memo that prosecutors placed in Trutenko’s personnel file. From that point, Foxx’s office was so determined to keep the memo confidential, one prosecutor in an unrelated case later told a judge he would rather be held in contempt than obey a court order to turn the document over to a defense attorney.

The Tribune obtained a copy of the memo, which was prepared by Risa Lanier, then chief of Cook County’s criminal prosecutions bureau, and her deputy, Diann Sheridan. The document suggests Trutenko’s interaction with the witness began cordially, outside the grand jury’s presence, with the prosecutor explaining the importance of the woman’s testimony and telling her he wished there were more people like her.

He considered her a “beautiful, star witness,” according to the memo, but she had not made a videotaped statement despite earlier promises to do so. Authorities thus wanted her to testify before the grand jury under oath about what she had seen, to lock her into a statement that would withstand the pressure she might feel testifying at trial against a family friend with alleged gang ties.

It was clear she was already struggling with her role when she showed up at the courthouse.

“When Nick spoke to her at the Grand Jury, she would not make eye contact and continued to hold her head down and shake her head no,” the supervisors wrote.

Trutenko later recounted that while talking to her, the woman said something about not caring if “police officers got hurt,” according to the memo. It hit his “hot button,” he reportedly said.

“Nick indicated that when she said those things about the police, it just hit a nerve,” the memo said. “He stated that he was not providing an excuse for his behavior, because it was wrong, but was explaining what triggered him to say those things.”

The memo states Trutenko confirmed he lashed out at the woman, who is Black, and threatened to charge her with perjury, contempt of court and obstruction of justice, though he said he could not and would not have done so. The supervisors wrote that Trutenko, who is white, also acknowledged he told the witness “you disgust me” and she was “no better than the gangbangers and shooters that we deal with.”

“Nick then agreed with the assessment that those statements were threatening and intimidating in order to secure the performance of a witness,” according to the document.

The witness did testify that day, providing answers consistent with what she had told detectives and identifying Moody and Gathings as the shooters. At one point, however, she told the grand jury she had been threatened by “Nick,” whom she wrongly assumed was a police detective.

“He didn’t just say tell the truth,” the woman told the grand jury, according to the testimony. “He threatened me that if I didn’t tell the truth that what would happen to me and what he will make sure that was going to happen to me because, again, I was just like the shooter. I disgust him. And all of this and all of that because I didn’t want to testify. And he told me that if I pled the Fifth that he would go to the chief judge and have me held in contempt with 58 counts of perjury or whatever.”

Lanier and Sheridan didn’t question Trutenko about the incident until 20 months later, calling him into the chief’s office in February 2019. They produced the three-page memo, which outlines how his behavior could cause problems for the Sanders case.

The document predicts that the allegations against Trutenko would undermine the credibility of the witness’ statements whether or not she presented the same testimony at trial.

“If (the witness) is cooperative and agrees to testify, the defense would use the fact that she admitted to being threatened by Nick prior to giving her statement before the Grand Jury,” it states. “That then puts the trial (prosecutor) in an awkward position of having to defend the integrity of the case, investigation, and our office despite Nick’s actions. If, however, (the witness) is not cooperative, we cannot call her as a witness and impeach her with her Grand Jury statement because she admits the reason she testify (sic) is because she was threatened by Nick.”

In other words, they had likely lost their “beautiful, star witness.”

Equally important, the memo notes, Trutenko’s conduct undermined Foxx’s efforts related to “diversity, culture, and implicit bias.” The supervisors asked him to imagine the damage done to the office’s reputation when the witness “undoubtedly” told her family and neighbors about the insults hurled at her.

“We asked him to consider also the gender and racial dynamics and how those words, regardless of his intent, take on a different connotation when said by a white male prosecutor with power to a black woman with no power,” the supervisors wrote. “We encourage Nick to consider the landscape of the country, the city and the community and how those words feed into how minority communities believe they are viewed.”

Trutenko stated he didn’t see or treat people based on the color of their skin, according to the memo. But if she were a white man he would have “put his fist through the man’s face,” the report said.

“Nick appeared honest, remorseful and introspective during the entirety of the conversation,” the supervisors wrote.

The 35-minute meeting ended with Lanier and Sheridan telling Trutenko this was a teaching moment, according to the memo. They also encouraged him to be more “aware of his own actions” so he could better counsel other prosecutors.

Contacted by the Tribune, the witness did not answer questions about the case. The Tribune is not naming her because she repeatedly has expressed concerns for her family’s safety.

The memo was placed in Trutenko’s personnel file, court records show, but it was not immediately given to attorneys for Moody or Gathings despite strict rules requiring prosecutors to share any material favorable to the accused.

The defendants were set to go to trial in March 2020 without any clue the document existed.

As the case came within a few weeks of trial, prosecutors did not offer any plea deals, Moody’s attorney said. The March 2020 date was postponed when the judge became busy with another case and then pushed it back again when COVID hit.

Refusing a judge’s order

In the same criminal courthouse, Jackie Wilson’s bench trial remained on the calendar in Judge William Hooks’ courtroom in fall 2020. Wilson was facing his third trial in connection with the infamous 1982 murders of two Chicago police officers after Hooks overturned Wilson’s 1989 conviction.

A special prosecutor had been appointed to handle the case because Wilson’s defense included allegations of misconduct against the Cook County state’s attorney’s office under previous leadership.

Wilson’s attorneys intended to argue that the lead prosecutor in his 1989 retrial — a promising young prosecutor named Nick Trutenko — had threatened witnesses to change their testimony and withheld information about another witness. They intended to call Trutenko to the stand.

Wilson attorney Elliot Slosar had subpoenaed Trutenko’s personnel file in preparation for Trutenko’s testimony, but Foxx’s office argued it was irrelevant to the case and refused to turn it over. After much back-and-forth, prosecutors filed three documents under seal and asked the judge to read them to determine their relevance.

The sealed request contained two letters praising Trutenko and the internal 2019 memo from the Moody case. Nearly two weeks before the trial, Hooks found all of it — but particularly the memo — germane to Wilson’s defense and ordered prosecutors to turn it over by 3 p.m. that day.

Assistant Cook County State’s Attorney Paul Fangman stunned Hooks by refusing.

“You are refusing to turn over?” an incredulous Hooks asked. “You are refusing to turn over these, these records?

“I mean no disrespect,” Fangman replied.

The judge repeated his order to turn the records over by 3 p.m. Seven minutes before that deadline, Fangman sent an email to the court seeking to withhold the memo and attached an astonishing motion asking the judge to “Hold the State’s Attorney’s Office in Contempt.”

“The (Cook County State’s Attorney’s Office) maintains that the responsive documents are not relevant to this case ... and refuses to turn over the responsive documents and asks this Court for friendly contempt to allow an appeal,” it stated.

Hooks read the motion, then gave the memo to the defense himself.

A week later, Trutenko took the stand at Wilson’s trial and answered several questions about the memo, which Slosar hoped would show he ignored his legal and ethical obligations whenever the issue of physical harm to police officers was raised. Trutenko testified he was unaware of the document’s existence until a few days prior and was surprised he hadn’t been given the opportunity to review it before it became part of his personnel file.

He specifically denied telling the witness she better testify or he would charge her with perjury. Instead, he testified he told her that if she lied and he could prove it, he would charge her.

“What I will say is I think a lot of the things that are in this memorandum are 100% correct,” Trutenko said. “And there are also portions of that that are not quoted exactly the way I said them, although the context is very similar.”

He confirmed, however, that he told the woman she disgusted him.

“Still does to this day, correct?” Slosar asked him.

“Absolutely,” Trutenko replied.

The questions moved to Trutenko’s involvement in the Wilson trial, and the case took a stunning turn. Midway through Slosar’s examination, the special prosecutor handling the case announced he was dropping the murder charges against Wilson because he believed Trutenko had given testimony that Trutenko knew to be false.

Trutenko, now 68, was fired that day and later charged with perjury, obstruction of justice and official misconduct in connection with his testimony and is slated to go to trial next week. He has pleaded not guilty.

The judge has barred the special prosecutor in the case from calling Lanier to testify about the allegations in the memo.

Trutenko defense attorney James McKay, a former prosecutor, has said in court that the witness had told Trutenko she planned to lie to the grand jury, so he informed her she could face perjury charges if she did. Although the memo stated Trutenko apologized for his conduct and felt remorse, McKay said his client “did not acknowledge any wrongdoing” during the 2019 meeting.

In a written response to Tribune questions, McKay said the Cook County state’s attorney’s office did not give Trutenko the chance to review the memo and allow him to explain his position.

Wilson, for his part, was granted a certificate of innocence by Hooks in December 2020 at age 60 and has filed a federal civil rights lawsuit against several law enforcement agencies and representatives, including Trutenko and the Cook County state’s attorney’s office.

‘Hey, that’s my case’

A day after Wilson’s case was dismissed, Hooks summoned Cook County prosecutors to answer questions about Trutenko’s troubling testimony. During that hearing, the judge also railed at Foxx’s office for withholding the memo.

“What you have done is suggest a pattern and practice of hiding materials relative to bad prosecutors,” Hooks said.

He then double checked that Foxx’s office had turned over the memo to the defendants involved in Fontaine Sanders’ murder case, the one with the reluctant witness.

“I’m going to presume your office did what they should have done,” Hooks said. “They would have turned this over in a case that involved this matter under transparency. It appears to be prosecutorial misconduct.”

The memo had not been turned over. Multiple sources told the Tribune it was around this time that Foxx learned of the witness intimidation allegations and the memo’s findings.

Still reeling from the events of the past few days, Slosar called Moody attorney Matt McQuaid and chatted about the Wilson case. The two had been friends for more than a decade, going back to a high-profile murder case in DuPage County where McQuaid was a defense attorney and Slosar was a law school student working on the case as a clerk with him and his co-counsel.

The conversation turned to the Trutenko memo, which never specifically named the criminal case involving the witness. As Slosar talked, McQuaid realized the memo pertained to Zeron Moody’s case.

McQuaid knew the witness had accused Trutenko of intimidation because he had a copy of the grand jury transcript. But prosecutors hadn’t told him there was a document suggesting Trutenko confirmed the interaction and outlining why the conduct could be considered problematic.

“My first thought was, ‘Hey that’s my case!’” McQuaid told the Tribune. “My next thought was, ‘I should have been given a copy of that memo.’”

Court records show prosecutors gave the memo to both defense teams on Oct. 15, 2020 — about 20 months after it was written. The trial prosecutor told the judge he had received the memo that same day and immediately turned it over to the men’s attorneys.

To McQuaid, the memo offered proof that Trutenko engaged in prosecutorial misconduct and that Foxx’s office wanted to hide it.

“In my opinion, I don’t understand how he kept his job,” McQuaid said. “To me, it was also clearly buried. Why wouldn’t you turn it over to the prosecutors in the case unless you wanted to keep the public from knowing about it?”

Gathings’ attorney, William Stanton, told the Tribune he also was stunned by the allegations and purported admissions outlined in the document.

“It’s not something I’d ever seen before in my 20 years as a defense attorney,” Stanton said. “It was very unusual.”

After receiving the memo, both defense teams filed motions to bar the witness from testifying, saying her testimony had been irrevocably tainted by her interaction with Trutenko.

“Allowing the testimony of (the witness) would deny Defendant a fair trial,” McQuaid wrote in his motion. “There is no remedy for this prosecutorial misconduct. Even with a vigorous and thorough cross-examination, the truthfulness of the testimony can never be rehabilitated.”

Foxx’s office responded with a brief detailing the strength of its case, including the video evidence. Prosecutors also argued that the defense could use Trutenko’s alleged threats to challenge the credibility of her testimony, but they couldn’t bar her from taking the stand.

“She testified she told the truth and the whole truth, despite any threats she testified she received from former ASA Nick Trutenko,” prosecutors wrote. “Hence, her testimony is clearly admissible and will be subject to cross-examination.”

The judge ruled the witness could testify, clearing the way for jury selection to start in August 2023. By that time, Moody had been in jail for six years and was among those featured in a Tribune series earlier this year on how Cook County takes longer than any major urban court system to complete murder cases.

In preparation for the trial, McQuaid said, he spoke with Trutenko’s defense attorney, who indicated the former prosecutor would invoke his Fifth Amendment rights against self-incrimination if called to testify. The response was not unexpected, given Trutenko has his own criminal case and anything said at Moody’s trial could have been used against him.

A really good deal

A few months before the trial, prosecutors did something that they had not done before the originally scheduled trial or at any time in the six years following Moody’s arrest: They offered him a formal plea deal.

McQuaid said they offered Moody 20 years in prison — the minimum sentence — if he pleaded guilty to murder.

Moody, who has a young child, turned it down, according to his lawyer.

A short time later, McQuaid told prosecutors that he planned to subpoena Lanier, who had since been promoted to Foxx’s first assistant, to testify about the Trutenko memo. As the second-highest ranking person in the state’s attorney’s office, Lanier oversees day-to-day operations and supervises top-level staff. She also recently announced plans to run for judge in the county’s 19th subcircuit.

Prosecutors planned to object to her appearance, in keeping with office policy whenever high-ranking assistant state’s attorneys are called as witnesses. Court records, however, indicate the judge was not asked to formally rule on the matter before the case was settled.

Soon after the subpoena, the plea offer changed, McQuaid said. Prosecutors told both defense teams that there were some “red flags” with the state’s witnesses, including the woman allegedly threatened by Trutenko. The witness had moved her family out of state in fear for their safety and indicated she did not want to testify.

With the trial just weeks away, Foxx’s office was now willing to drop the murder charge if Gathings and Moody each pleaded guilty to a single count of aggravated battery with a firearm.

The sides were still in negotiations as the August trial date approached, so jury selection was pushed back. The talks went back and forth for two more weeks until they settled on a deal in which each man was sentenced to 174 months in prison for Sanders’ fatal 2017 shooting.

With credit for the time they already spent in jail, Moody and Gathings would be free in roughly six years. Despite misdemeanor charges they racked up in detention while awaiting trial, neither would have their sentence extended, according to terms of the plea deal.

The bargain appeared so beneficial to both men, the judge commented on it.

“I don’t know what you’re going to make of the opportunity that your lawyers have worked out on your behalf but in no way does it make up for what you’ve done and sometimes life isn’t fair,” Byrne said during the Sept. 1 court hearing, according to the transcript.

Sources with knowledge of the decision to make a plea offer told the Tribune it stemmed solely from the witness’ apprehension at that moment and had nothing to do with Lanier’s subpoena.

The defense attorneys had a different take on the timing.

“In the end, it was a really good deal for us,” McQuaid said. “I would have to suspend all disbelief to think what happened here had nothing to do with the memo. I’m not a moron.”

Gathings’ attorney also told a Tribune reporter he thought the memo and the plea bargain were connected.

“I think you’re hitting the nail on the head as to why it was such a good deal,” Stanton said.

Foxx’s public relations staff declined Tribune interview requests for both the state’s attorney and Lanier. The office’s statement also did not respond to specific Tribune questions about the memo, Foxx’s reaction to the alleged misconduct, the defense’s plans to subpoena Lanier, the plea deal and if Sanders’ family was informed of the allegations leveled by the witness.

With the criminal case closed, Corniki Bornds no longer spends hours sitting on hard courtroom benches in the hopes of securing justice for her son. She honors his memory in other ways, by offering small scholarships to students in her neighborhood and helping other parents of slain children with their grief.

In a brief interview, she told the Tribune the plea deal outrages her. She said prosecutors told her “they didn’t have any witnesses, so they couldn’t prove it” at trial.

Bornds’ attorney, Jeffrey Steinback, told the Tribune that Bornds still is searching for answers behind the lenient punishment her son’s killers received.

“She was left with even greater despair and, if possible, more frustration over the ineffable tragedy which she suffered when her son was murdered,” Steinback said.

At the September sentencing, a prosecutor read a statement from Bornds to the judge. In the court file, it serves as the official last word on her son’s death.

“I watch as his friends have graduated college, had kids, gotten married … even gotten the chance to play (basketball) overseas and Fontaine nothing. All because of someone’s evil actions,” she wrote. “I’ll never get to see all the amazing things I know he would have done and accomplished. ... My happily ever after is now a continuous nightmare.”

sstclair@chicagotribune.com

cmgutowski@chicagotribune.com