A Cook County judge is scheduled to rule today on a motion to dismiss a murder case against two Evanston men because defense attorneys did not have the opportunity to examine a rental car in which the crime occurred.

Jamal Jones and Carlos Priester were charged at a Jan. 26, 1999, arraignment with first degree murder in the Jan. 4, 1999, death of Gerald Kennedy. Kennedy, of Evanston, died of multiple gunshot wounds to the head inside a rented blue Mazda 626 that all three men were driving around in that afternoon on the West Side of Chicago, according to court records. Jones and Priester also have been charged with illegal possession of firearms.

On the same day the two men were charged, Cook County Judge Thomas Fitzgerald ruled in favor of the defense’s motion to preserve physical evidence, including the rental car. In an earlier motion on Jan. 15, another judge had ruled to preserve tapes of 911 calls placed from a home near the crime scene, and also from Jones’ cellular phone.

Despite these rulings and numerous subpoenas, defense attorneys said they never gained access to the requested evidence.

But defense attorneys did not ask to inspect the car until after the state crime laboratory had returned it to The Hertz Corp., said Jodee Sargeant, a spokeswoman for Cook County State’s Attorney Dick Devine.

Despite the prosecution’s claim, court records show that the car was returned to Hertz Feb. 18, 1999, more than three weeks after defense attorneys filed a motion to preserve it as evidence.

An assistant state’s attorney said it was not unusual that the state crime lab returned the car to Hertz because police had taken 32 photographs of the outside and inside of the Mazda, including the interior of its trunk. In addition, loose items in the car – including a cellular phone and bullets – had been inventoried, and the blood stains had been swabbed.

“This is a case that – not unlike every other murder case in this county, in this state, in this country – that the crime scene was processed, reviewed, and then disappeared,” said Joan Pernecki, the assistant state’s attorney at last Friday’s preliminary hearing. “For example, victims’ bodies are considered part of a crime scene, but they are buried after photos are taken. They are not preserved in amber for investigation.”

Jones’ and Priester’s attorneys argued that the car should have been retained at least long enough for the defense to examine it. They said the car is important because finding bullet holes or other evidence of a struggle between the defendants and the victim – not initially documented by police – could help prove that the defendants acted in self-defense.

“We had the absolute right to inspect the crime scene,” said Salvatore Miglore, Jones’ attorney. “The photos just aren’t enough. Maybe (police) missed something. It wouldn’t be the first time.”

The defense lawyers also allege that investigators did not inform them the car had been returned until more than a year after the shooting. There are no records showing who at the crime lab returned the car to Hertz.

In addition to their claims of evidence destruction, defense attorneys also have filed motions to stop the use of the defendants’ signed confessions as evidence.

Police records show that after hearing their Miranda rights and being interrogated in separate rooms for several hours, both men signed confessions claiming responsibility for shooting Kennedy. The statements, which were handwritten by assistant state’s attorneys, do not mention self-defense, state officials said.

In the motions to suppress the statements, both defendants have said the confessions were involuntary because they were based on Chicago Police Department detectives’ “physical and mental coercion.” Jones and Priester named several detectives involved in their interrogations in the motion.

None of the detectives named by the defendants has received disciplinary actions resulting in a suspension of more than 30 days, said Mark Iris, executive director of the Chicago Police Board, the agency that holds disciplinary hearings for officers accused of misconduct.

Judge Preston Bowie is scheduled to hear the continuance of the motion at noon today in room 203 of the Cook County Criminal Division, 2600 S. California Ave., in Chicago.