THIRD DIVISION March 25, 2015

No. 1-11-3075

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 01 CR 6428 ) ANDRE RICHARDSON, ) Honorable ) Diane Gordon Cannon, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Justice Neville concurred in the judgment and opinion. Justice Pucinski dissented, with opinion.

OPINION

¶1 Defendant Andre Richardson appeals from the summary dismissal of his pro se petition

for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)).

On appeal, Richardson contends that his petition sufficiently alleged an ineffective assistance of

counsel claim based on trial counsel's failure to acquire and produce evidence of his mental

impairment to demonstrate his inability to waive his rights pursuant to Miranda v. Arizona,

(1966). We affirm.

¶2 BACKGROUND

¶3 On February 9, 2001, Richardrson, who was 16 years old, was arrested at 4837 South St.

Lawrence Avenue in Chicago in connection with the murder of his 11-month-old daughter,

Diamond Clark. At the police station, Richardson gave a videotaped statement in which he made

inculpatory remarks, including that he bit his daughter, struck her numerous times with a coat

hanger and belt, struck her face with his hands, struck her in the ribs, and shook her. No. 1-11-3075

¶4 Prior to trial, the defense filed a motion to suppress Richardson's videotaped statement as

involuntary. In the motion, Richardson alleged, in part, that he was incapable of understanding

the full meaning of his Miranda rights and that the statements sought to be suppressed were

obtained as a result of physical coercion illegally directed against him by police. After a hearing,

at which the evidence showed that Richardson received an injury to his left eye at the police

station lockup, the trial court denied the motion to suppress. The court found that although

Richardson was injured at the police station, the detectives and assistant State's Attorney who

questioned him were not involved in the altercation. Furthermore, Richardson was advised of his

rights, did not complain of any pain or request medical assistance, and appeared calm in the

videotape. The trial court thus concluded that the totality of the circumstances showed that the

confession was voluntary.

¶5 At Richardson's 2005 jury trial, the trial court admitted into evidence his videotaped

inculpatory statement and forensic evidence. The State's evidence at trial also included the

testimony of Cyntoria Clark, the baby's mother; James Franklin, an eyewitness to part of the

beating; Monica Smith, the neighbor who called "911"; Michael Hayes, the arresting officer; and

Assistant State's Attorney (ASA) John Heil. Richardson, the sole witness for the defense,

testified that his videotaped statement was true, except for hitting his daughter with a belt, which

he did not do. At the close of the evidence, the jury returned a verdict of guilty of first degree

murder.

¶6 At sentencing, the presentence investigation report (PSI) revealed that Richardson had

been a learning–disabled student throughout his life and that, when he was transferred to jail at

age 17, he could not read. The fitness evaluation presented at sentencing concluded that

Richardson was fit for sentencing. It also indicated that he achieved a full–scale IQ score of 61,

which falls within the extremely low range of intellectual functioning and ranked him at the 0.5

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percentile when compared to his same-aged peers. The evaluation also stated that Richardson

"appears to fall in the upper echelon of mild mental retardation." Following a sentencing

hearing, the court sentenced Richardson to 40 years' imprisonment.

¶7 On appeal, this court reversed Richardson's conviction on the basis that the trial court

erred in denying his motion to suppress where the State failed to prove by clear and convincing

evidence that his eye injury was not inflicted in order to obtain a confession. People v.

Richardson,

(2007). The State was granted leave to appeal to the Illinois

Supreme Court. People v. Richardson,

(2008). Before our supreme court, the

State argued that Richardson's inculpatory statement was voluntary and not coerced. The

supreme court agreed and reversed this court's decision, instructing this court to consider

Richardson's remaining contentions. People v. Richardson,

(2009).

¶8 On remand, this court considered Richardson's remaining contentions, and affirmed the

judgment of the trial court. People v. Richardson,

(2010). In relevant part,

this court rejected Richardson's claim that he was denied effective assistance of trial counsel

based on counsel's failure to offer expert testimony concerning his mental impairment during the

motion to suppress hearing.

. We acknowledged that Richardson's mental capacity was

raised during sentencing but observed that the information in the PSI did not deal with

Richardson's ability to waive his Miranda rights.

.

¶9 On June 15, 2011, Richardson filed a pro se postconviction petition alleging that his trial

counsel was ineffective for failing to present evidence of his limited mental capacity at the

hearing on his motion to suppress statements. Richardson asserted that this evidence would have

shown that he could not have knowingly and intelligently waived his Miranda rights prior to

providing his inculpatory statements to the State. Richardson specifically alleged in his petition:

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"Trial counsel's failure to marshall [sic] evidence on [defendant's]

diminished mental capacity at the motion to suppress, and her

failure to argue such evidence coupled with [defendant's] youth

weighed in favor of suppression, was objectively unreasonable

because such evidence was highly relevant in determining the

validity of the Miranda waiver and the voluntariness of

[defendant's] statement."

Richardson did not sign his petition or attach a verification affidavit. However, he did attach

transcripts from three pretrial court dates in which defense counsel represented to the court that

she had hired an expert to examine Richardson regarding his ability to waive his Miranda rights

and that she was in the process of having the examination conducted. Richardson also attached

to his petition transcripts showing that he was unable to spell "Cyntoria," the name of his baby's

mother. Richardson's allegation is premised on the information included in the PSI.

¶ 10 On September 13, 2011, the circuit court issued a written order dismissing the petition as

frivolous and patently without merit. In doing so, the circuit court held that it would follow this

court's 2010 decision on appeal, which determined that Richardson could not establish that he

was provided ineffective assistance of counsel, declined to assume that the result of the

evaluation was favorable and not used or that counsel failed to conduct an evaluation, and found

that Richardson was fit for sentencing. Richardson now appeals the propriety of that dismissal.

¶ 11 ANALYSIS

¶ 12 We initially reject the State's contention that Richardson's petition was properly

dismissed at the first stage of proceedings solely on the basis that his petition lacked both a

verification affidavit and his signature on the petition.

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¶ 13 A postconviction proceeding "shall be commenced by filing with the clerk of the court in

which the conviction took place a petition (together with a copy thereof) verified by affidavit."

725 ILCS 5/122-1(b) (West 2010). After the briefs were filed in this case, our supreme court

explained that, "at the first stage of proceedings, the court considers the petition's substantive

virtue rather than its procedural compliance." People v. Hommerson,

.

Specifically, with respect to a lack of an affidavit, our supreme court held that "the circuit court

may not dismiss a petition at the first stage proceedings solely on the basis that it lacked a

verification affidavit," and "[t]hat deficiency is properly the subject of a motion to dismiss at the

second stage of proceedings." Id. ¶¶ 11, 14. In following our supreme court's reasoning in

Hommerson, we find that the lack of a verification affidavit and signature affixed to Richardson's

petition is not dispositive at the first stage of proceedings. In so finding, we now turn to

Richardson's substantive argument that he was denied effective assistance of counsel.

¶ 14 On appeal, Richardson contends that he raised an arguable claim of ineffective assistance

of counsel. He specifically maintains that his counsel was ineffective for failing to have him

evaluated for his ability to understand Miranda where there was reason to believe he was

mentally retarded. If he was of such limited functioning that he could not understand Miranda,

then he asserts it was at least arguable that the court would have suppressed his confession

following the hearing on his motion.

¶ 15 The Act provides a method by which persons under criminal sentences can assert that

their convictions resulted from a substantial denial of their constitutional rights. 725 ILCS

5/122-1(a)(1) (West 2010). At the first stage of postconviction proceedings, the trial court must

independently review the petition, taking the allegations as true and determine whether the

petition is "frivolous or patently without merit." People v. Hodges,

(2009); 725

ILCS 5/122-2.1(a)(2) (West 2010). A petition may be summarily dismissed as frivolous or

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patently without merit only if the person has no arguable basis in either law or in fact. People v.

Tate,

. "A petition which lacks an arguable basis either in law or in fact is

one which is based on an indisputably meritless legal theory or a fanciful factual allegation."

Hodges,

.

¶ 16 The first stage in the proceedings allows the trial court "to act strictly in an administrative

capacity by screening out those petitions which are without legal substance or are obviously

without merit." People v. Rivera,

(2001). Because most first-stage post-

conviction petitions are drafted by defendants with little legal knowledge, the "threshold for

survival [is] low." Tate,

. We review the summary dismissal of a post-

conviction petition de novo. Id. ¶ 10.

¶ 17 A defendant alleging ineffective assistance of counsel at the first stage of proceedings

must show it is arguable that counsel's performance fell below an objective standard of

reasonableness, and arguable that defendant was prejudiced. Tate,

(citing

Hodges,

). In the instant Richardson has not presented an arguable claim of

prejudice. See People v. Valladares,

(if a claim of

ineffectiveness may be disposed of due to lack of prejudice, a reviewing court is not required to

address whether counsel's performance was unreasonable). To establish the prejudice prong of

an ineffective assistance of counsel claim in the context of a motion to suppress, the defendant

must demonstrate that the "unargued suppression motion is meritorious, and that a reasonable

probability exists that the trial outcome would have been different had the evidence been

suppressed." People v. Henderson,

; People v. Lundy,

(2002).

¶ 18 Here, Richardson failed to make an arguable claim that his motion to suppress would

have succeeded had trial counsel presented evidence of his mental deficiency at the hearing. The

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inquiry as to whether a defendant knowingly and voluntarily waived his Miranda rights focuses

on the totality of the circumstances surrounding the interrogation. People v. Smith,

(1989). While mental deficiency is one factor to be considered when deciding

whether Miranda rights were validly waived, evidence of a limited intellect, alone, is not proof

that one was incapable of waiving constitutional rights. Id.; see also People v. Henderson,

(1988); People v. Burke,

(1987); People

v. Creamer,

(1986); People v. Clements,

(1985); People v. Racanelli,

(1985) (the defendants,

who possessed IQ scores similar to that of defendant in this case, were found to have knowingly

and intelligently waived their rights). Other facts to consider include defendant's age, prior

experience with the criminal law, and emotional stability. Smith,

. Both

the characteristics of the accused and details of the interrogation must be considered (id.),

including the manner in which a defendant answers questions (People v. Williams,

(1984)).

¶ 19 A review of the record here shows that even if trial counsel had introduced evidence of

Richardson's limited mental capabilities at the hearing on the motion to suppress, the trial court

would still have denied his motion because, based on the totality of the circumstances, it is clear

that Richardson knowingly and intelligently waived his Miranda rights. Richardson's pre-

sentencing psychological evaluation indicated that he was in the "upper echelon of mild mental

retardation," but that despite his cognitive impairment, at the time of evaluation, the problem was

not so severe as to compromise his ability to understand the nature and purpose of the

proceedings pending against him. The evaluation noted that Richardson conveyed a clear

awareness of the status of his case, an adequate understanding of courtroom procedure, the role

and responsibilities of key courtroom personnel, and dispositions that he faced. The record also

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shows that he had a criminal history in that he had been previously arrested and adjudicated a

delinquent minor for aggravated battery.

¶ 20 Furthermore, Richardson was 16 years old when he waived his Miranda rights in this

case, and the videotaped statement showed him being advised of and waiving his Miranda rights

before providing the details of what he did to his infant daughter. In waiving his rights, ASA

Heil asked Richardson if he knew what each right meant and then asked him to explain what the

right meant to him, which he did. Where extensive testimony reveals that a defendant

understood his Miranda rights and gave responsive answers to questions, a court may properly

find that a defendant knowingly and intelligently waived his right despite a low intelligence

level. See People v. Scott,

(1992) (finding a valid waiver of his rights

where the defendant indicated that he understood them and gave responsive answers to

questions, despite having an IQ of 75 and suffering from schizophrenia). It is also noteworthy

that Richardson's mother was with him throughout the questioning, and she never suggested to

any of the officers or assistant State's Attorney that her son was mentally impaired or would not

be able to understand his rights. Richardson's claim that his inability to spell his girlfriend's

name, "Cyntoria," demonstrated that he suffered from a mental impairment is not persuasive.

¶ 21 We also hold that Richardson failed to make an arguable claim that there was a

reasonable probability that the outcome of the trial would have been different had the videotaped

confession been suppressed. As we found in our decision on direct appeal following

remandment from the supreme court, the evidence against defendant was overwhelming.

Richardson,

. As the State points out, Richardson's confession was not the

only evidence of his guilt that was introduced. Richardson's daughter was in good condition

when she was left in defendant's care, but when the first officer arrived on the scene, the

unconscious infant had bite marks, black and blue eyes and a swollen cheek. Richardson told the

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responding officer that the baby had slipped in the bathtub the previous night and that he had to

"whip" her after she vomited her cereal. James Franklin, who was 10 years old at the time, was

present when Richardson spanked, punched, and shook his daughter. In his own trial testimony,

Richardson admitted repeatedly shaking, biting, and hitting the infant on various parts of her

body. The medical examiner testified that the baby sustained 61 different injuries, and his

testimony regarding the locations and types of injuries found on the infant's body corroborated

the testimony of Franklin and Richardson regarding how the injuries were inflicted. In light of

the overwhelming evidence against Richardson, even absent the videotaped statement he made,

we cannot say it is arguable that he was prejudiced by counsel's alleged deficient performance.

Therefore, the petition lacks an arguable basis in law. Hodges,

. Accordingly,

summary dismissal of the petition was proper.

¶ 22 In reaching this conclusion, we find People v. Turner,

(1973), People v.

Bernasco,

(1989), and People v. Redmon,

(1984),

relied on by Richardson, distinguishable from this case. In all three cases, the records were, at

best, unclear regarding whether the defendants understood their rights, and the reviewing courts

found that they had not knowingly and intelligently waived their Miranda rights. See Turner,

(police were aware the 25-year-old defendant with an IQ of 70 had a history of

mental deficiency, and there was no evidence showing that the defendant's request for an

attorney prior to his polygraph examination was ever relayed to police); Bernasco,

(the 17-year-old defendant had an IQ of 80, had no prior experience with the

criminal justice system, was interrogated outside the presence of a parent, and did not understand

his rights or what "waiver" meant); Redmon,

(the 17-year-old

defendant had an IQ of about 70, and the court held that there was obvious confusion concerning

his rights). Unlike the above cases, Richardson understood and explained each right, had been

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previously arrested and adjudicated delinquent, and had his mother with him during the

interrogation.

¶ 23 SUPPLEMENTAL ANALYSIS

¶ 24 We now have the benefit of our colleague's views which were not available to us when

this order was originally filed on October 22, 2014. People v. Richardson, 2014 Ill. App. (1st)

113075-U. We respond briefly. We will not address the dissent's extended criticism of

perceived defects in the Post Conviction Hearing Act (725 ILCS 5-122-1 et seq. (West 2010)),

the wisdom of the mandatory transfer provision of the Juvenile Court Act of 1987 (705 ILCS

405/5-130 (West 2010)) or the ability of juveniles to waive their Miranda rights, as those issues

have never been raised or briefed by the parties and thus are not before us.

¶ 25 As it pertains to this case, the dissent labels Richardson's defense counsel as "missing in

action" and "ineffective in the extreme" based primarily on the assertion that she failed to present

evidence of Richardson's mental capacity. Infra ¶¶ 45, 173. Such unnecessary rhetoric disserves

the talented and dedicated lawyers who represent indigent defendants in this state. The record

reflects that Richardson's counsel was a member of the Homicide Task Force of the Cook

County public defender's office, a division reserved for the most experienced, skilled and well-

trained lawyers. See People v. Simpson,

(2001); Ill. S. Ct. R. 714 (eff.

Jan. 1, 2005; reserved eff. Jan. 1, 2011). At the time of the 2005 trial, Richardson's counsel had

been a lawyer for nearly 20 years. While even the most experienced lawyers make mistakes, in

order to ascribe to the dissent's views, we would have to believe that Richardson's counsel made

a conscious decision to abandon her client. Such an accusation, which permeates the dissent, has

far-reaching implications for a member of the legal profession and is one we should hesitate to

level without compelling justification.

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¶ 26 But far from being ineffective, Richardson's counsel, possessing virtually no evidence to

work with, caused Richardson's jury to question whether it could convict him of a lesser offense

(which, under the circumstances of this case, it could not). The fact that defense counsel's

argument—in a case where the evidence established that defendant mercilessly beat an infant for

30 minutes inflicting injuries to her brain, virtually every major organ and multiple skeletal

structures—caused this jury to hesitate to convict her client of first degree murder is a testament

to counsel's talent and resourcefulness and she does not deserve the harsh criticism she receives

from the dissent.

¶ 27 The fundamental presumption underlying the dissent is that there was evidence available

that would have been favorable to Richardson if only his lawyer had bothered to obtain and

present it. An analysis of the validity of that presumption begins with our earlier opinion in this

case. There we observed that Richardson's ineffective assistance claim rested on two

possibilities: (1) either his counsel, despite her many representations to the contrary to the trial

court, failed to have him evaluated; or (2) counsel did have him evaluated, obtained information

favorable to his defense and simply failed to use it. Richardson,

. Because

those matters were outside the record in Richardson's direct appeal, we commented that they

would be more appropriately addressed in a postconviction petition.

.

¶ 28 But the suggestion that matters are more appropriately addressed in a postconviction

petition and the conclusion that the petition ultimately filed states the gist of a constitutional

claim are two different issues. Here, despite the dissent's emphasis on Richardson's pro se status

and its characterization of Richardson's petition as "inartful" and "incomplete," an examination

of the petition reveals that it is remarkably cogent and replete with legal arguments and citation

to authorities. As the face of the petition reveals, Richardson was assisted by another inmate in

preparing the petition, and while he did not have the assistance of counsel, he certainly managed

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to file a petition several iterations removed from the bare-bones petitions unrepresented prisoners

usually file.

¶ 29 Moreover, analysis of the substance of the petition conclusively eliminates the first

possible basis for Richardson's ineffective assistance claim: that his defense lawyer failed to have

his mental capacity evaluated. Although we have excused Richardson's failure to provide a

verification affidavit, we cannot overlook factual omissions or supply them ourselves. " '[W]hile

a pro se petition is not expected to set forth a complete and detailed factual recitation, it must set

forth some facts which can be corroborated and are objective in nature or contain some

explanation as to why those facts are absent.' " Hodges,

(quoting People v.

Delton,

(2008)). A postconviction petitioner's failure to either attach the

necessary affidavits, records or other evidence or explain their absence is fatal to a post-

conviction petition and " 'by itself justifies the petition's summary dismissal.' [Citation.]" Delton,

. Richardson would certainly know whether he was evaluated prior to the

hearing on his motion to suppress. Yet, his petition does not allege that he was not evaluated,

nor does he provide an affidavit attesting to that fact.

¶ 30 Therefore, the viability of Richardson's petition depends on the claim that his defense

counsel did, in fact, have him evaluated, obtained evidence that would have been favorable to his

defense and decided not to use it. But again, Richardson's petition does not contain facts to

support such a claim. As the subject of the evaluation, Richardson would have been entitled to

obtain a copy of it. Yet, Richardson does not attach a copy of his evaluation or explain any

attempts he made to obtain it. So in order to find that Richardson's petition states the gist of a

constitutional claim, we must assume that the evaluation produced evidence favorable to

Richardson, without factual allegations or any evidence to that effect and no explanation for its

absence. This is, again, a defect in the petition that the law does not allow us to excuse, just as

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courts do not excuse a postconviction petitioner's failure to articulate the substance of a missing

witness' testimony claimed to be favorable. People v. Harris,

(2007).

¶ 31 The petition claims that defense counsel was ineffective because she failed to present

evidence of Richardson's mental capacity, a mantra adopted by the dissent. The unspoken

assumption in that claim is that the evidence (presuming it existed) would have aided Richardson

on either the motion to suppress or at trial. But the dissent does not articulate how defense

counsel could have presented evidence of Richardson's mental capacity (presumably through the

testimony of the mental health professional who evaluated him) without disclosing and opening

the door to inquiry into the remainder of that expert's report, i.e., Richardson's ability to

understand and waive his Miranda rights (which was the stated purpose of the evaluation in the

first place). See Ill. S. C. R. 413 (eff. July 1, 1982) (requiring defense disclosure of, inter alia,

reports of mental health examinations). Given defense counsel's repeated representations to the

court that she needed additional time to have Richardson evaluated, it is obvious that Richardson

was, in fact, evaluated and the evaluator reached conclusions not helpful to Richardson's motion

to suppress, thus readily explaining the lack of such evidence. While we do not assume that

Richardson was smarter or had a higher IQ at the time of his suppression hearing, there is no

reason to believe that he was less competent to understand and waive his Miranda rights at 16

than he was when he was found competent for sentencing at age 20. And if Richardson was

capable of understanding and waiving his Miranda rights, it stands to reason that he was likewise

capable of understanding right from wrong and the criminality of his conduct. Indeed, the

evidence showed that on the day he killed his daughter, Richardson told the police and the

downstairs neighbor that his daughter sustained injuries when she fell in the bathtub and claimed

that she had bite marks on her when he picked her up from her mother's apartment. Richardson's

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efforts to deflect responsibility manifest a concomitant ability to form the requisite intent to

commit first degree murder.

¶ 32 The dissent repeatedly criticizes defense counsel for failing to introduce evidence at the

suppression hearing and at trial regarding Richardson's "family history." An effort by the

defense to adduce evidence that Richardson was subjected to corporal punishment at the hands of

his mother and that she was a drug addict would clearly have entailed evidence of matters

collateral to both his ability to understand and waive his Miranda rights and the charges on trial.

Richardson's low IQ and his unfortunate upbringing do not constitute legal defenses to murder

and the dissent does not cite any authority that so holds. Thus, Richardson was not entitled to a

voluntary manslaughter instruction because, as the trial court correctly found, the brutal,

prolonged beating of his daughter could not fairly be characterized as reckless conduct. People

v. DiVincenzo,

(1998) ("an involuntary manslaughter instruction is generally

not warranted where the nature of the killing, shown by either multiple wounds or the victim's

defenselessness, shows that defendant did not act recklessly"); People v. Daniels,

(1998) ("severe and vicious beatings of helpless victims cannot be described by any

rational jury as involuntary manslaughter"). This was not, after all, a broken arm that was

twisted in anger or a head injury that resulted from a single blow. Richardson's IQ and

background were relevant to sentencing and that is where they were properly considered by the

trial court, another undeserving target of the dissent's unwarranted criticism.

¶ 33 The presumption underlying Richardson's postconviction petition—that his lawyer was in

possession of evidence regarding his mental capacity that would have been favorable to him and

elected not to use it—is precisely the type of "fanciful" claim that is properly dismissed at the

first stage. Hodges,

.

¶ 34 For the foregoing reasons, we affirm the judgment of the circuit court.

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¶ 35 Affirmed.

¶ 36 PRESIDING JUSTICE PUCINSKI, dissenting.

¶ 37 This is wrong.

¶ 38 I disagree with the majority and believe that they are wrong on the letter of the Post-

Conviction Hearing Act as it is written and the spirit which created it.

¶ 39 This matter is before us on defendant Andre Richardson's appeal of the trial court's denial

of his pro se postconviction petition at the first stage as frivolous and without merit.

¶ 40 He argues that his defense attorney was ineffective because she did not present an

evaluation of his mental ability in support of his motion to suppress his video statement.

¶ 41 This case is a great example of the why the postconviction petition procedure as written

and applied rings hollow.

¶ 42 Richardson, pro se, is doing what this court told him to do – he has filed a postconviction

petition. Without assistance from any attorney he has missed several important issues that might

be raised in his petition. "A determination as to whether trial counsel was ineffective as to this

issue is a claim that would best be raised in a postconviction petition. Where information not of

record is critical to a defendant's claim, it must be raised in a collateral proceeding." People v.

Richardson,

(2010) (Richardson III).

¶ 43 His defense attorney's failure to provide an evaluation of his mental ability and family

history for the motion to suppress was bad enough. But then she failed to provide that

information to the jury for its deliberations. And she failed to provide that information to the

judge to give a basis for the request for the involuntary manslaughter instruction. And because

there was no record, no information, no evidence presented to support the involuntary instruction

the judge refused to give it. Finally, without any evidence presented by the defense about

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Richardson's mental ability and family history when he was arrested at age 16, and only the

presentence report and behavioral exam ordered by the judge after trial when he was 20, the

judge did not have the option of considering his behavior when he was 16 at the time of the

crime, and instead relied on information about the 20-year-old standing in front of her when it

came to sentencing.

¶ 44 The missing defense evidence had an impact on the motion to suppress (denied), the

request for an involuntary instruction (denied, no evidence to support it), the jury's understanding

of the element of the intent of the defendant in this case and on the sentence. It is a complete

understatement to say that defense counsel was ineffective; she was missing in action. It is a

worse understatement to say that Richardson was not prejudiced by his defense counsel's

mistakes because every step of the way, from the trial court, through the appellate court and to

the supreme court, every decision has emphasized that there was "no evidence" and "not a

scintilla of evidence" to support the defense.

¶ 45 The trial court said: "[I]f there were any – and I will emphasize any – credible evidence to

support a reckless act I would have given the involuntary instruction." (Emphasis added.) And:

"There is not one scintilla of evidence that the defendant did anything but beat this child ***

your motion for mistrial denied." (Emphasis added.)

¶ 46 In reversing People v. Richardson,

(2007) (Richardson I), the

supreme court said: "However, at the suppression hearing, defendant presented no evidence or

argument of any mental deficiency that would render his inculpatory statement involuntary, and

the circuit court made no findings relating thereto." (Emphasis added.) People v. Richardson,

(2009) (Richardson II). And: "Indeed, the issue of defendant's mental

capacity was not raised until sentencing."

at 263 n.7. And: "After reviewing the entire record,

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we conclude that there is no evidence that defendant's will was overborne." (Emphasis added.)

.

¶ 47 The appellate court said (on remand) in Richardson III: "[D]efense counsel offered no

evidence to support the claim that defendant was unable to waive his Miranda rights ***."

(Emphasis added.) Richardson III,

. "There is not a scintilla of evidence to

support a finding that defendant acted recklessly rather than knowingly and intentionally."

(Emphasis added.)

. And, (on the issue of intent and admission of graphic

photographs): "[W]e find that the trial court did not abuse its discretion in failing to give an

involuntary manslaughter instruction because the evidence did not warrant such an instruction."

(Emphasis added.)

¶ 48 Postconviction Petition

¶ 49 The Illinois Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West

2010)) provides that any person convicted of a crime may challenge the conviction or sentence

where he can allege that a violation of the federal or state constitution has denied him a

fundamental right. People v. Pendleton,

(2006). The first step is for the

circuit court to review the petition to see if it is "frivolous or is patently without merit" and, if so,

to dismiss the case. 725 ILCS 5/122-2.1(a)(2) (West 2010). At this stage, the petitioner only has

to present the gist of a constitutional claim. People v. Edwards, 197 Ill 2d 239, 244 (2001). At

the first stage, all well-pleaded allegations are taken as true and liberally construed in favor of

the petitioner. People v. Brooks,

(2009). We review the dismissal of a

petition at the first stage de novo. People v. Brown,

(2010). A petition may

be dismissed at the first stage only if it "has no arguable basis either in law or in fact." People v.

Hodges,

(2009). A petition lacking an arguable basis in law or fact is one

"based on an indisputably meritless legal theory or a fanciful factual allegation." A claim

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completely contradicted by the record is an example of an indisputably meritless legal theory.

Hodges,

.

¶ 50 The Act provides that any claim not raised in defendant's original petition or in an

amended petition is waived (725 ILCS 5/122-3 (West 2010)), and our supreme court has held

that a claim that was not included in the postconviction petition cannot be raised for the first time

on appeal (People v. Pendleton,

(2006); People v. Jones,

(2004)).

¶ 51 Our supreme court has observed a low threshold for survival of a petitioner's claims at the

first stage, noting that most petitions at this point are drafted by defendants with little legal

knowledge. People v. Torres,

(2008). To that end, we must liberally

construe the petition and defendant's allegations. People v. Cruz,

, ¶

48. The allegations of the petition, taken as true and liberally construed, need only present the

gist of a constitutional claim. People v. Harris,

(2007).

¶ 52 Further, the supreme court has explained that where a pro se defendant raises only one

issue and could be said to have included other allegations under our liberal construction the

matter must be decided in defendant's favor. In Hodges,

, the defendant filed a

pro se postconviction petition in which he alleged ineffective assistance of counsel and focused

entirely on his self-defense theory. The State argued he made a choice of what to appeal and

should be held to it. The supreme court said the petition "could be said to have included

allegations regarding 'unreasonable belief' second degree murder" and found that the denial of

the petition as frivolous and without merit because "defendant's legal theory of ineffective

assistance was not indisputably meritless." Hodges,

.

¶ 53 Beginning with our de novo review (see People v. Brown,

(2010)

("The summary dismissal of a postconviction petition is reviewed de novo.")), we look to the

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entire record to see if Richardson's allegation that his defense counsel was ineffective for failing

to provide evidence of his mental ability to the attention of the court in his motion to suppress

was reasonable. It is apparent that the failure to provide the evidence for the motion to suppress

had a critical and damaging effect on the motion to suppress because without it the court had no

evidence against which to weigh the voluntariness of his confession in the face of police abuse,

and the appellate court had no evidence against which to weigh his waiver of his Miranda rights.

In addition, looking at the entire record it is clear that the missing evidence impacted

significantly and negatively on the defense theory that there was no intent to murder, the motion

for a directed finding, the request for an involuntary manslaughter instruction, the motion for a

mistrial and on sentencing. Taken as a whole, the record demonstrates clearly that defense

counsel's failure at one point had a disastrous ripple effect on the entire trial.

¶ 54 Going to Richardson's claim that his counsel was ineffective because she did not perfect

the argument on the motion to suppress with evidence that his confession was not voluntary, it is

clear that the supreme court and appellate court did in fact consider this matter and ruled against

Richardson; however, it is also clear that Richardson's proof of this fact is de hors the record and

cannot be brought to light without the evidentiary hearing at the second stage of this petition,

which is what this court told him to do.

¶ 55 First, Richardson's allegations in his petition must be taken a true unless rebutted by the

record, which they are not. Brown,

(quoting People v. Coleman,

(1998)). Here the record is crystal clear that defense counsel did not present any

evidence of his mental ability. And, it is also clear that his only evidence of counsel's ineffective

performance is outside the record in this case.

¶ 56 Recognizing that Richardson is exactly the kind of defendant the supreme court was

considering in Torres,

, i.e., an uneducated, immature defendant with limited legal

- 19 - No. 1-11-3075

knowledge, and overlapping that with the fact that the Act itself prohibits any new claims on

appeal of the dismissal of his first-stage petition, we see that the Act has effectively created a

trap for the Richardsons of our state. We are, in effect, saying: "Do it yourself without any help,

and do it right because if you blow it on the original petition your petition will be tossed out. We

won't tell you that you can ask to amend your petition, and you won't get a lawyer to help you

amend it." And then, to make matters worse – if they could be – we require the same judge who

ruled against the defendant every step of the way to decide if the petition is frivolous and without

merit.

¶ 57 Our supreme court has correctly pointed out that there is no constitutional guarantee of

the right to a collateral action against a conviction, nor is there a right to an attorney if such

action is permitted by statute, even when the issue itself is ineffective assistance of counsel. See

People v. Ligon,

(2010). However, the Ligon court also held that "where *** the

record is insufficient because it has not been precisely developed for the object of litigating a

specific claim of ineffectiveness raised in the circuit court, thereby not allowing both sides to

have an opportunity to present evidence thereon, such a claim should be brought on collateral

review rather than direct appeal." Ligon,

(citing People v. Bew,

(2008), citing Massaro v. United States,

(2003)).

¶ 58 So, our supreme court has said that matters outside the record must be brought in a

postconviction petition. And, that under the Act as it is written, the defendant does not get an

attorney to help at the first stage. That does not mean that the Act as written is right. The Act, to

use Justice Freeman's term (used considering the Act in another context) is a "gotcha" (see

People v. English,

(Freeman, J., specially concurring, joined by Burke,

J.)).

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¶ 59 The pro se petition " 'is not expected to set forth a complete and detailed factual

recitation, it must set forth some facts which can be corroborated and are objective in nature or

contain some explanation as to why those facts are absent.' " People v. Hodges,

(2009) (quoting People v. Delton,

(2008)). The pro se petition can be

dismissed as frivolous and without merit "only if the petition has no arguable basis either in law

or in fact." Hodges,

.

¶ 60 This petition is not frivolous. It has merit. My colleagues on the majority are ignoring

the obvious. Defense counsel was ineffective. The trial court, the appellate court and the

supreme court all referenced the fact that no evidence of his mental ability was presented. And

appellate counsel was equally ineffective for failing to raise several significant issues that should

have been raised. Richardson's petition should be allowed to go to the second stage with an

attorney who can help him amend his petition to identify all the ways this trial went wrong.

¶ 61 It is no consolation that Richardson has the legal ability to file a successive petition, since

in order to do that he will need leave of court, under tighter standards. 725 ILCS 5/122-1(f)

(West 2010). This is an unlikely possibility, since, again, it has to go to the same judge who

denied the first petition and ruled against Richardson during the trial.

¶ 62 It is ironic that this judge in particular should find this petition frivolous and without

merit since she so convincingly repeated that there was no evidence presented by the defendant

to support his case. If there was no evidence presented by defense counsel, yet there were

findings four years later in his presentence evaluation as to his mental ability, the defense was at

least arguably ineffective. "At the first stage of proceedings under the Act, a petition alleging

ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable that

counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable

that the defendant was prejudiced." People v. Cathey,

(citing Hodges, 234

- 21 - No. 1-11-3075

Ill. 2d at 17). I believe it is more than arguable that defense counsel's performance fell below an

objective standard of reasonableness and it is clearly arguable that the defendant was prejudiced

by this ineffective representation.

¶ 63 And, let us not forget that a ruling on the initial postconviction petition has a res judicata

effect with respect to all claims that were raised or could have been raised in the petition. People

v. McDonald,

, 392-393 (2006). The Act provides that any claim of

substantial denial of constitutional right not raised in a defendant's original postconviction

petition is waived. 725 ILCS 5/122-3 (West 2010).

¶ 64 So, a defendant like Richardson is expected to roll his constitutional dice. He gets one

roll. This is Illinois's constitutional equivalent of Sky Masterson's all-or-nothing-roll in Guys

and Dolls: With the system taking the place of the house on this roll, the odds are way in favor

of the house. And this is a country, and a state, in which our fundamental guiding principle is

that even bad guys have rights. More bluntly, it is a constitutional crap game.

¶ 65 What is shocking is that the first-stage petition, usually prepared pro se by the defendant,

is the linchpin for the whole postconviction procedure, and it is so totally susceptible to the traps

of the Act.

¶ 66 With 96,000 attorneys in Illinois, it is hard to believe that none of them are able and

willing to provide pro bono assistance at this first stage. Recognizing that the State Appellate

Defender is already overburdened, it is clear that no one wants to put more responsibility on that

office. Yet, as with this case, once the first-stage petition was tossed, the State Appellate

Defender was appointed anyway to represent Richardson on the appeal of that order. Now,

however, their hands are tied to the petition that Richardson so inartfully and incompletely

prepared. Richardson could never have been expected to challenge his defense attorney for

ineffectiveness on other matters, nor could he be reasonably expected to challenge his appellate

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attorney for the continuation of that ineffectiveness. Our state promises a hearing on his

constitutional issues without any meaningful way for most pro se petitioners to get there. The

Act, as it is written, is not working.

¶ 67 Procedural History

¶ 68 This postconviction petition should be allowed to proceed to the second stage because it

states the gist of a constitutional issue and this court told Richardson to do it this way.

¶ 69 After remand from the supreme court, our colleagues in the First District said:

"Whether an evaluation was in fact completed and what the results of that evaluation

might be are matters outside the record in this case. *** A determination as to whether

trial counsel was ineffective as to this issue [failure to present evidence of an evaluation

at the suppression hearing] is a claim that would best be raised in a postconviction

petition. Where information not of record is critical to a defendant's claim, it must be

raised in a collateral proceeding." Richardson III,

.

¶ 70 A brief review of the procedural history of this case is needed to understand why I feel

this dissent is necessary.

¶ 71 Richardson was arrested in February, 2001. He was found guilty of murder in the death

of his one-year-old daughter in a jury trial in January, 2005.

¶ 72 He filed a direct appeal and raised four issues, discussed below.

¶ 73 The appellate court reversed on the question of whether his confession was voluntary

because he had been injured while in police custody, but did not decide the other three issues.

Richardson I,

.

¶ 74 The State was granted leave to appeal and the Illinois Supreme Court reversed the

appellate court on the voluntariness of the confession based on his injury while in police custody

- 23 - No. 1-11-3075

and remanded back to this court to consider the remaining three issues. Richardson II,

.

¶ 75 The appellate court, in Richardson III,

, affirmed the trial court on the

three remaining issues, finding: (1) trial counsel's failure to call an expert during the suppression

hearing concerning Richardson's mental impairment and its effect on his ability to waive his

Miranda rights did not fall below an objective standard of reasonableness; (2) defendant was not

entitled to a jury instruction in involuntary manslaughter, and (3) the trial court's admission of 27

graphic photos of the dead child depicting her internal injuries was not an abuse of discretion.

¶ 76 There was no further appeal on those three issues.

¶ 77 Richardson then filed a pro se postconviction petition alleging ineffective assistance of

counsel for failure to provide an evaluation to support the motion to suppress where his mental

disability affected his ability to waive his Miranda rights.

¶ 78 The trial court denied the postconviction petition as frivolous and without merit.

¶ 79 But remember, the supreme court heard the question of the confession as to its

voluntariness because of his injury while in police custody. The supreme court did not consider

whether the failure to provide an evaluation affected his ability to knowingly waive his Miranda

rights because the appellate court, in Richardson I, did not consider that question. Nor did the

supreme court decide on the issue of the involuntary manslaughter instruction, since it was not

before that court. And while the appellate court on remand did consider these issues and ruled

against the defendant, it was that very court that told Richardson to file a postconviction petition

because the proof of his allegations is not in the record and so can only be determined in a

collateral proceeding after an evidentiary hearing.

¶ 80 Richardson appealed the denial of the postconviction petition and the State Appellate

Defender was appointed to represent him.

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¶ 81 On appeal the majority would affirm the denial of the postconviction petition.

¶ 82 Ineffective Assistance of Defense Counsel

¶ 83 "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate

that counsel's performance was deficient and that the deficient performance prejudiced the

defendant. [Citation.] More specifically, a defendant must show that counsel's performance was

objectively unreasonable under prevailing professional norms and that there is a 'reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different.' " Cathey,

(quoting Strickland v. Washington,

(1984)); U.S. Const., amend. VI.

¶ 84 In Richardson's case the defense attorney failed to provide evidence of his mental

capacity or family environment. At the suppression hearing this evidence would have been

important for the judge to consider. During the trial this evidence would have been significant

for the jury to consider in evaluating his behavior and whether the State had proved the element

of intent on the first degree murder charge. In the instruction phase this evidence was

fundamental to the request for the involuntary manslaughter instruction. There was no strategic

purpose for failing to provide this evidence. See, e.g., People v. Diaz,

, ¶ 22; People v. McPhee,

(1993). I am persuaded by the

reasoning in Diaz, that where such evidence "provides the strongest defense to the State's case,

the defendant has shown that his counsel provided objectively unreasonable assistance." Diaz,

, ¶22; see Nulle v. Krewer,

, 806 n.2 (2007)

(although opinion unpublished, the court is free to deem it persuasive). In this case the defense

was lack of intent to murder. Clearly his mental ability and family history provide compelling

evidence to support the defense theory. Leaving it out cannot be strategic.

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¶ 85 My colleagues on the appellate court on remand in Richardson III said that they would

not speculate about the evidence that was not there. However, we have the fact that four years

after the crime, in 2005, Richardson was evaluated and found to be have "a full scale IQ of 61,

which falls within the extremely low range of intellectual functions and ranks him in the 0.5th

percentile," and that he was "in the upper echelon of mild mental retardation" and had a third-

grade reading level after four years of special education while incarcerated at the Cook County

Department of Corrections. Can anyone really believe that any evaluation done in 2001, four

years earlier, would have shown him to be less mildly mentally retarded, or have a higher IQ, or

know how to read better? We are not supposed to leave common sense at the door.

¶ 86 The second prong of the Strickland test is whether the defendant was prejudiced by the

ineffective assistance of counsel. To establish prejudice "[t]he defendant must show that there is

a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland,

. For Richardson, that reasonable

probability is shown from a number of facts from his trial: (1) in denying the motion to suppress

the court found there was no evidence to support Richardson's claim that his video statement was

the result of the physical abuse at the police station; (2) in denying the motion for a directed

finding the court had no evidence on which to evaluate the State's proof of Richardson's intent to

murder beyond a reasonable doubt; (3) in denying the involuntary manslaughter instruction the

court specifically found that there was no evidence to support recklessness; (4) the jury itself sent

out a note asking if they could consider a lesser offense; (5) in sentencing the court had no

evidence presented by the defense to consider when weighing the culpability of the 16 year old

offender arrested in 2001 as compared to the 20 year old defendant on trial in 2005; (6) the

supreme court had no evidence to support a finding that the confession was involuntary; (7) the

- 26 - No. 1-11-3075

appellate court had no evidence to support an involuntary instruction; and (8) the appellate court

had no evidence to support defendant's argument that his mental impairment affected his ability

to waive his Miranda rights.

¶ 87 This cascade of events demonstrates prejudice to the defendant because of defense

counsel's failure to provide evidence of his mental ability and family history.

¶ 88 I believe Richardson has met both prongs of the Strickland test.

¶ 89 Postconviction Traps

¶ 90 The appellate court in Richardson III told him that a postconviction petition was the way

to get the failure of his defense counsel to provide an evaluation of his mental condition in the

suppression hearing considered since it would require dealing with evidence that was outside the

record.

¶ 91 And Richardson, pro se, followed the court's advice. Only he did not raise other defects

in the defense which bolstered his claim that his constitutional right to effective assistance of

counsel had been violated in his pro se postconviction petition; for example, the fact that the

missing evaluation had a significant impact on not only the motion to suppress his confession but

also and perhaps more importantly on his defense to the element of intent to murder, on the

matter of the trial court's refusal of an involuntary manslaughter instruction and later on

sentencing. Nor could he have known that his appellate counsel was also ineffective for not

raising these and other matters.

¶ 92 Then after the pro se petition was denied, the court appointed an attorney to represent

him on the appeal of the denial of the petition, but it is already too late because this appellate

counsel is stuck with the petition he filed, not the one he could have filed if he had been given an

attorney to help him prepare and/or amend his postconviction petition in the first place.

- 27 - No. 1-11-3075

¶ 93 More seriously, this attorney cannot now add to his petition the ineffective assistance of

appellate counsel in the direct appeal.

¶ 94 Richardson is caught in Illinois criminal justice's postconviction trap and he is being

denied justice, access to justice and any sort of fair play by the rules that are in place today.

¶ 95 We have the resources to appoint an attorney to assist him in appealing the denial of a

pro se petition that he messed up. But we deny him the attorney to get the petition right the in

the first instance.

¶ 96 That is fundamentally unfair, but it is particularly vexing when you consider: (1) our

absolute belief that every trial should be fair; (2) incarcerated defendants who are preparing pro

se postconviction petitions are totally at the mercy of their prison situation and literally cannot

just go to the law library when they want, or get assistance in prison; and (3) may be, like

Richardson, a person of limited education and limited intelligence.

¶ 97 The problem is that Richardson, now about 29, is no longer the skinny child he was at

trial. And, his progress in reading while he was at Cook County jail for four years waiting trial

indicates that by the age of 29, if he was allowed to continue with any kind of school in prison,

he will be more articulate and hopefully have a higher reading level: all of which will make it

much harder to see the child-father that was actually arrested in 2001 and on trial in 2005.

Richardson acting pro se is in no position to evaluate all the parts of his trial below or his direct

appeal and is stopped by the supreme court ruling in his case from re-arguing the voluntariness

of his confession.

¶ 98 If Richardson is not allowed to go forward with this pro se postconviction petition, to the

second stage where he will be appointed an attorney to amend his petition, his only remaining

remedy will be to seek permission to file a successive postconviction petition, which is a much

steeper climb.

- 28 - No. 1-11-3075

¶ 99 For all of the reasons above and below, I strongly believe that Richardson should be

allowed to proceed to the second stage, be assigned an attorney and be allowed to file an

amended postconviction petition.

¶ 100 Trying to find your way through the legal complications is daunting enough for qualified

and skilled appellate attorneys; expecting pro se defendants to do it is just paying lip service to

the whole notion of postconviction petitions: the law says they are entitled to file one, but the

system tells them that when they do not do it exactly right: "Oh well, too bad, you're out of

luck." This is not access to justice.

¶ 101 Facts of the Case

¶ 102 Andre Richardson was found guilty by a jury of the first degree murder of his daughter,

Diamond. The one-year-old child suffered multiple serious injuries from Richardson and died at

about 11:45 p.m. on February 9, 2001. Richardson was arrested at 3:30 p.m. on February 9,

2001 and charged with child abuse. He was held at the police station until about 7:30 p.m., when

he was questioned by detectives. It is uncontradicted that between his arrest and 7:30 p.m. he

was injured at the hands of police personnel in the police lockup resulting in a visibly black and

swollen left eye. He was 16 at the time. His mother was called to the station at about 5 p.m.; she

saw him and saw his eye was not injured but was not allowed to talk him. She was told she had

to go home and bring proof of his age. When she returned she was not allowed to talk with him,

but she did see him and observed the injury to his eye. When Detective Zalatoris saw

Richardson at about 7 p.m. he saw the injury to his eye but did not inquire about it or do anything

about it. Youth officer Nolan saw Richardson about 7:30 or 8 p.m. and saw that his left eye was

swollen, that he was still with arresting officer Hayes, and that the mother was at the station.

Nolan did not do anything about Richardson's eye injury. The police department's Office of

Professional Standards (OPS) had been called and was beginning its investigation of the injury to

- 29 - No. 1-11-3075

the juvenile; however, OPS was not allowed to talk to Richardson. Nolan gave the defendant his

Miranda warnings; however, there is no signed waiver from the 16-year-old or his mother.

Nolan called felony review and told Richardson he could be tried as an adult but did not tell him

what the charge would be. Detectives O'Connell and Zalatoris along with youth officer Nolan

and the defendant's mother saw Richardson at about 9:08 p.m. The police questioned him for

about an hour, all noticing his visibly injured eye. Youth officer Nolan read the Miranda

warnings again. Again, no written waiver was obtained from Richardson or his mother. No one

told Richardson what the possible charges might be. Detective Zalatoris testified that the mother

did not talk to Richardson before the actual questioning that began at 9:08 p.m. At that time the

detectives and youth officer questioned Richardson for about an hour. The mother was present

for this session. It was after the questioning that she was left alone with her son.

¶ 103 At 10 p.m. Assistant State's Attorney Heil arrived and talked to Detectives O'Connell and

Zalatoris and youth officer Nolan. Heil then went to the hospital to check on the condition of

Diamond. He learned that Diamond died at about 11:45 p.m.

¶ 104 At 12:28 a.m. on February 10, 2001 Heil returned to Area 1 and began questioning

Richardson. Richardson's mother, Detective O'Connell and youth officer Nolan were present.

Heil testified that he gave Richardson his Miranda warnings, but again there is no written

waiver; that he took no notes; that he told the defendant he could be charged as an adult because

of the seriousness of the matter; and that the officers left at that time. Heil did not tell the

defendant that he would be charged with murder, although he did tell the defendant that his child

had died. Although the defendant's mother testified that Nolan grabbed her, pushed her, shouted

at her, called her a "bitch" and told her to shut up, youth officer Nolan testified that he did none

of those things and that he did not tell Richardson that he would be charged with child

endangerment, that he could go home if he talked, or that he would never go home.

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¶ 105 At 9:27 a.m. on February 10, 2001 Richardson gave a video statement to Heil, at which

his mother and youth officer Nolan were present. Richardson and his mother both signed the

consent to video the statement, but that consent does not include Miranda waivers. Richardson

was led through his Miranda warnings in the video statement and agreed that he understood each

of them; however his mother was not asked if she agreed, and did not speak up in disagreement

during the video.

¶ 106 Richardson had by then been in custody since 3:30 p.m. the day before and had a

significant injury to his eye.

¶ 107 Automatic Transfer to Adult Court

¶ 108 There is another significant and troubling aspect of this case.

¶ 109 The State's Attorney chose to charge Richardson with first degree murder.

¶ 110 This is the State's Attorney's prerogative, and in 2001 under Illinois law, once a juvenile

age 16 was charged with first degree murder, he or she was automatically transferred to adult

court.

¶ 111 This means that all of the discretion is with the State's Attorney as to the charge, before

the State's Attorney has ANY information about the juvenile.

¶ 112 Unlike the permissive transfer provisions, which require a hearing before a juvenile judge

who will take evidence into consideration in deciding whether the juvenile should be transferred

to adult court, the mandatory transfer act has no such oversight by anyone. A State's Attorney

for whatever reason can decide the charge and the juvenile is completely and effectively at the

mercy of the adult system from that moment forward. There are no published rules or protocols

for the charging decision, there is no judicial review and there is no appeal.

- 31 - No. 1-11-3075

¶ 113 Much has been written about the difference between juveniles and adults. And no one

denies that juveniles commit heinous crimes. Even in this case no one denies that Richardson

inflicted terrible injuries to his daughter which led to her death.

¶ 114 There are two recent developments that may change this landscape.

¶ 115 As recently as October, 2014 the Illinois Supreme Court upheld the constitutionality of

the mandatory juvenile transfer provision, although reluctantly, in People v. Patterson,

, with a strong dissent from Justice Theis. In recognizing modern research showing the

impact that juveniles' youth has on their judgment and actions, our supreme court wrote: "We do,

however, share the concern expressed in both the Supreme Court's recent case law and the

dissent in this case over the absence of any judicial discretion in Illinois's automatic transfer

provision. While modern research has recognized the effect that the unique qualities and

characteristics of youth may have on juveniles' judgment and actions (see, e.g., Roper, 543 U.S.

at 569-70; [citation]), the automatic transfer provision does not. Indeed, the mandatory nature of

that statute denies this reality. Accordingly, we strongly urge the General Assembly to review

the automatic transfer provision based on the current scientific and sociological evidence

indicating a need for the exercise of judicial discretion in determining the appropriate setting for

these proceedings in juvenile cases." Patterson,

.

¶ 116 And, while Patterson was working its way through the courts, the Illinois legislature was

considering House Bill 4538, legislation that would eliminate automatic transfers and require a

hearing before a judge before a transfer to adult court could be made.

¶ 117 In an important move, House Bill 2404 (98th Ill. Gen. Assem., House Bill 2404, 2013

Sess.) was recently signed into law, directing 17-year-olds charged with felony crimes to be tried

in juvenile courts where rehabilitation is the goal.

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¶ 118 This movement away from automatic transfers has the support of the Campaign for

Youth Justice and the John Howard Association, and automatic transfers have been researched

thoroughly and disapprovingly by the Illinois Juvenile Justice Initiative in their work, Automatic

Adult Prosecution of Children in Cook County, in which the authors state: "More than 30 years'

of studies have consistently demonstrated that categorical treatment of children as adults

prevents rehabilitation and positive development, fails to protect public safety and yields

profound racial, ethnic and geographic disparities." Automatic Adult Prosecution of Children in

Cook County, Illinois. 2010-2012 (Juv. Just. Initiative, Evanston, Ill.), Apr. 2014, at 3, available

at http://jjustice.org/wordpress/wp-content/uploads/Automatic-Adult-Prosecution-of-Children-

in-Cook-County-IL.pdf (hereinafter Automatic Adult Prosecution). While this research focused

on the years 2010 to 2012, it showed a troubling pattern of racial disproportion in Cook County

in automatic transfer cases. One is left to wonder if the racial disproportion from l982, the year

that automatic transfers went into effect, to 2010 was any less significant or troubling. See The

Consequences Aren't Minor (Campaign for Youth Just.), Mar. 2007, available at

http://www.campaignforyouthjustice.org/images/nationalreports/consequencesarentminor/CFYJ

NR_ConsequencesMinor.pdf; In Their Own Words: Young People's Experiences in the Criminal

Justice System and Their Perceptions of Its Legitimacy (John Howard Ass'n of Illinois), Dec. 6,

2014, available at http://thejha.org/words; John Maki, April 9, 2014, Op-Ed: It's Time to Abolish

Automatic Transfer (Juv. Just. Info. Exchange), Apr. 9, 2014, available at http://jjie.org/op-ed-

its-time-to-abolish-automatic-transfer/.

¶ 119 Changing the law for future cases will not help Richardson; however, it is still important

to note that there are many juveniles who committed crimes and were automatically transferred

to adult court under the old law. We can only hope that in a manner consistent with the recent

reviews of adult cases, State's Attorneys across the state will review their automatic transfer

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cases to see which, if any, in the wake of new understanding of juvenile behavior merit a review,

and that courts will view the opportunity to take a fresh look at those cases as a chance to heed

the lessons of science and apply them in the spirit of justice.

¶ 120 Richardson was charged with murder as an adult under section 5-130 of the Juvenile

Court Act (705 ILCS 405/5-130 (West 2010)): "Excluded jurisdiction. (1)(a) The definition of a

delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time

of an offence was at least 15 years of age and who is charged with *** first degree murder ***.

These charges and all other charges arising out of the same incident shall be prosecuted under the

criminal laws of this State."

¶ 121 "Illinois has one of the most extreme 'automatic' prosecutorial transfer mechanisms.

Most states require an individualized hearing either in juvenile court or a 'reverse waiver' hearing

in adult court to try a child as an adult. Illinois, however, has no 'safety valve,' no hearing in

either juvenile or adult court to review whether trial in adult court is appropriate in an individual

case. Only 14 states use such an extreme process to make this critical decision without any

safety valves. In Illinois, a child is transformed into an adult through the mere filing of a charge,

and the child remains stuck in adult court with no legal mechanism to trigger a hearing to

consider his/her background to determine the appropriateness of adult court jurisdiction."

Automatic Adult Prosecution, at 9.

¶ 122 While the automatic transfer law has been held constitutional by the Illinois Supreme

Court in Patterson, People v. J.S.,

(1984), and People v. M.A.,

(1988), even with the evolving United States Supreme Court attitudes toward juveniles,

we are still literally stuck with Patterson, J.S. and M.A. even while admitting that widely

respected research would and probably should lead to a different result. This was the dilemma in

People v. Willis,

, a case in which I participated. There we

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acknowledged that the law is moving slowly toward revisiting the constitutionality of automatic

transfer, while also admitting that as long as our supreme court maintains its views we are

powerless to do otherwise.

¶ 123 Youth

¶ 124 As recently as September 2014, the appellate court, in People v. Sanders,

, quoted extensively from Miller v. Alabama,

,

(2012), and related cases, Graham v. Florida,

(2010), and Roper v. Simmons,

(2005). Although Sanders is unpublished and not precedential, I am persuaded by its

discussion of the Roper-Graham-Miller scientific and sociological principles.

¶ 125 Sanders was 17 when he was charged with murder and attempt murder and was sentenced

to consecutive sentences. He brought several challenges to his sentence, including the second

successive postconviction petition that is the subject of the appellate court's Rule 23 order. In the

process of challenging his consecutive sentences, Sanders also challenged the lengthy sentence

he received – 40 years for the murder and 30 years each for the two attempted murders for a total

of 100 years – as unacceptable under the eighth amendment.

¶ 126 The appellate court wrote:

"In Miller, the United States Supreme Court explained at length the special concerns

that arise whenever a court sentences a juvenile offender. First, the [Supreme] Court

interpreted the holdings of Graham and Roper v. Simmons,

(2005):

'Roper and Graham establish that children are constitutionally different

from adults for purposes of sentencing. Because juveniles have diminished

culpability and greater prospects for reform, we explained, they are less deserving

of the most severe punishments. [Citation.] Those cases relied on three

significant gaps between juveniles and adults. First, children have a lack of

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maturity and an underdeveloped sense of responsibility, leading to recklessness,

impulsivity, and heedless risk-taking. [Citation.] Second, children are more

vulnerable … to negative influences and outside pressures, including from their

family and peers; they have limited contro[l] over their own environment and lack

the ability to extricate themselves from horrific, crime-producing settings.

[Citation.] And third, a child's character is not as well formed as an adult's; his

traits are less fixed and his actions less likely to be evidence of irretrievabl[e]

deprav[ity]. [Citation.]

Our decisions rested not only on common sense – on what "any parent

knows" – but on science and social science as well. [Citation.] In Roper, we

cited studies showing that [o]nly a relatively small proportion of adolescents who

engage in illegal activity develop entrenched patterns of problem behavior.

[Citation.] (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence:

Developmental Immaturity, Diminished Responsibility, and the Juvenile Death

Penalty, 58 Am. Psychologist 1009, 1004 (2003)). And in Graham, we noted that

developments in psychology and brain science continue to show fundamental

differences between juvenile and adult minds – for example, in parts of the brain

involved in behavior control. [Citation.] We reasoned that those findings – of

transient rashness, proclivity for risk, and inability to assess consequences – both

lessened a child's moral culpability and enhanced the prospect that, as the years

go by and neurological development occurs, his deficiencies will be reformed.

[Citation.] Roper and Graham emphasized that the distinctive attributes of youth

diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes. Because "[t]he heart

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of the retribution rationale" relates to an offender's blameworthiness, the case for

retribution is not as strong with a minor as with an adult. [Citations.] Nor can

deterrence do the work in this context, because the same characteristics that

render juveniles less culpable than adults – their immaturity, recklessness and

impetuosity – make them less likely to consider potential punishment. [Citation.]

Similarly, incapacitation could not support the life-without-parole sentence in

Graham: Deciding that a juvenile offender forever will be a danger to society

would require mak[ing] a judgment that [he] is incorrigible – but incorrigibility is

inconsistent with youth. [Citation.] And for the same reason, rehabilitation could

not justify that sentence. Life without parole forswears altogether the

rehabilitative ideal. [Citation.] It reflects an irrevocable judgment about [an

offender's] value and place in society, at odds with a child's capacity for change.

[Citation.] ' " (Internal quotation marks omittted.) Sanders,

, ¶ 26 (quoting Miller v. Alabama,

, ____,

(2012)).

,

(2012),

¶ 127 The appellate court continued:

"The Miller court then applied its observations to the case on appeal:

'Of special pertinence here, we insisted in these rulings that a sentence

have the ability to consider the "mitigating qualities of youth." [Citation.]

Everything we said in Roper and Graham about that stage of life also appears in

these decisions. As we observed, youth is more than a chronological fact.

[Citation.] It is a time of immaturity, irresponsibility, impetuousness[,] and

recklessness. [Citation.] It is a moment and condition of life when a person may

be most susceptible to influence and to psychological damage. [Citation.] And

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its signature qualities are all transient. [Citation.] Eddings is especially on point.

There, a 16-year-old shot a police officer point-blank and killed him. We

invalidated his death sentence because the judge did not consider evidence of his

neglectful and violent family background (including his mother's drug abuse and

his father's physical abuse) and his emotional disturbance. We found that

evidence particularly relevant – more so than it would have been in the case of an

adult offender. [Citation.] We held: "[J]ust as the chronological age of a minor

is itself a relevant mitigating factor of great weight, so must the background and

mental and emotional development of a youthful defendant be duly considered" in

assessing his culpability. [Citation]." (Internal quotation marks omitted.)

Sanders,

, ¶ 27 (quoting Miller,

,

).

¶ 128 The appellate court found that the trial court did not consider the special circumstances of

youth that often make lengthy sentences particularly inappropriate for youthful offenders, and

found that Sanders showed he had a "reasonable probability" of a shorter sentence "if the trial

court [had] correctly understood the eighth amendment as it applie[d] to the punishment of

juvenile offenders." Sanders,

, ¶ 30. The case was remanded for

resentencing.

¶ 129 The appellate court appears to have put the Roper Graham Miller cases in a special

compartment where offenders like Richardson cannot use the same logic to show that his

attorney was ineffective for failing to provide any evidence of his culpability based on his mental

ability, his family or social history, his youth, or other factors. The Roper Graham Miller cases

are called sentencing cases, but they are really about culpability. If their analysis depends on

evidence of youthfulness and its effects, then what can we say about a defense attorney who

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provides NO EVIDENCE WHATSOEVER about a defendant's youthfulness and its effects?

That evidence was crucial in determining Richardson's culpability. Surely, leaving it out was

ineffective assistance of counsel and could not have been strategic.

¶ 130 Motion to Suppress

¶ 131 Richardson filed a motion to suppress his video statement as involuntary as a result of

police coercion. The motion was denied. On direct appeal the issue was raised again along with

three others, and the appellate court reversed and remanded on that issue. Richardson I,

. The supreme court allowed the State to appeal and reversed the appellate court,

ruling that the video confession was voluntary and not coerced. The supreme court remanded

back to the appellate court for consideration of the remaining three issues: (1) that he received

ineffective assistance of counsel; (2) the trial court erred in refusing to instruct the jury on the

lesser-included offense of involuntary manslaughter; and (3) he was denied a fair trial when

autopsy photographs were published to the jury and sent to the jury room during deliberations.

The appellate court on remand affirmed on all three of those remaining issues, stating that there

was no evidence in the record to support his claim on the ineffective assistance of counsel and

the involuntary manslaughter instruction issues. The appellate court affirmed on the

photographs, saying they were there to show intent; however, without the evidence of his mental

ability the intent shown by the photographs becomes another matter of ineffective assistance of

counsel and the failure of the appellate counsel to frame it that way is another example of the

ineffective assistance of appellate counsel.

¶ 132 In his direct appeal Richardson argued that he was denied his right to effective assistance

of counsel where counsel failed to offer expert testimony concerning his mental impairment

during the motion to suppress hearing. His defense attorney argued the issue of his mental

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ability in the motion to suppress, in the motion to reconsider the denial of the motion to suppress,

in the motion for a new trial and in the motion to reconsider the denial of a new trial.

¶ 133 However, his defense attorney provided no evidence or testimony about his mental

capacity in relation to the motion to suppress, or even later in the trial as to the element of intent.

¶ 134 His appellate counsel did not frame any of those issues in terms of ineffective assistance

of defense counsel.

¶ 135 Confession, Motion to Suppress, Voluntariness

¶ 136 His first claim on appeal was based on the fact that his attorney, although asking for

several continuances to obtain an expert evaluation of the defendant, never produced the

evaluation, or expert testimony at the hearing on the motion to suppress.

¶ 137 His claim is bolstered by the fact that the presentence investigation ordered by the court

after the trial and before sentencing identified several factors of concern: (1) he had no pending

cases or warrants; (2) he had an aggravated battery as a juvenile which resulted in "probation

satisfactorily completed" ; (3) he is the youngest of five children; (4) his brother was shot to

death; (5) he had no contact with his father; (6) this mother came home every day and hit and

slapped him, and beat him with extension cords, belts, broom sticks, "anything she could get her

hands on" if the house wasn't clean; (7) the mother drank a fifth of whiskey a day, and around the

time Richardson was 12 developed a crack cocaine habit; (8) when Richardson was 12 he sold

M&M's on the street and rapped on the train to make money for food; (9) he was illiterate when,

after his arrest, he was transferred to CCDOC at the age of 17; (10) while at CCDOC he had,

with the help of a special education teacher, achieved a third-grade reading level; (11) he was

classified learning disabled during his entire time in Chicago public schools; (12) he attended

five different grade schools; (13) there was the possibility of fetal alcohol syndrome; (14) from

the age of 13 he had been drinking Jack Daniels and smoking PCP; (15) he had no gang

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affiliation; (16) while in jail (he was arrested at 16, the PSI was done when he was 17) his

mother moved and he did not know her current address; (17) his report from Forensic Clinical

Services found him to be fit for sentencing, at age 20, and his psychological evaluation

indicated that he had, at age 20 in 2005, a "full scale IQ of 61, which falls within the extremely

low range of intellectual functioning and ranks him at the 0.5th percentile, when compared to his

same aged peers (meaning that 99.5% of these individuals would likely do better on this

test…Overall, Mr. Richardson appears to fall in the upper echelon of Mild Mental Retardation at

this time. It should be noted that Mental Retardation is not necessarily a permanent condition

and that with additional education and/or further life experience it is likely that he would shift

into the Borderline range of intellectual functioning." (Dr. Neu report, May 12, 2005)

¶ 138 The appellate court declined to speculate about what a report on his mental ability at the

time of his arrest at age 16, or even between 16 and 17, when his defense counsel was asking for

continuances to get an evaluation, would prove.

¶ 139 In one hearing defense counsel told the court that the person who went to the jail to do

the evaluation was denied access to Richardson, but counsel did not provide further information.

However, by the time the trial was actually held, in 2005, the defendant was 20 years old. It is

simply inconceivable that his mental ability was better at age 16 to 17 than it was at 20, so it

does not take speculation, it takes common sense, to understand the disastrous effect of the

defense counsel's failure to provide the information soon after defendant was arrested, not only

to lay the foundation for the motion to suppress, but also to challenge the element of intent in the

murder charge, to support the involuntary instruction, and for sentencing.

¶ 140 Both the appellate court and the supreme court focused on the motion to suppress because

that is the only argument his appellate attorney made regarding his mental capacity.

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¶ 141 This was particularly important information for the court to have when it ruled on the

motion to suppress, and the importance of the missing information does not end there. Defense

counsel did not present it, either through an expert witness or from occurrence witnesses in

Richardson's life, his mother, friends, teachers, or principals. The necessary evidence was never

presented at all.

¶ 142 Waiver of Rights by Minors

¶ 143 The fact that courts continue to hold that any child is capable of knowingly and

voluntarily waiving his or her right to be silent or waiving his right to have an attorney is the flip

side of the Roper Graham Miller analysis and begs for robust argument.

¶ 144 No child in Illinois under the age18 can vote, join the military, get a passport on his

own, marry, buy liquor or lottery tickets yet we continue to hold that children can voluntarily

waive their most fundamental constitutional rights when in the custody of police, certainly a

frightening and daunting experience. Ask any parent of a child under the age of 18 if his or her

child could fully and completely understand the nuances of the Miranda warnings and the effect

of waiving them and it is hard to see any thoughtful parent saying: "Sure!" no matter how

precocious the child is. Better yet, ask yourself if your own 18 or under child could fully

appreciate all the ramifications of that waiver, something so slippery that a child could agree

without even taking time to reflect on the words themselves or their effect: Would you want

your own child to be irretrievably bound by his or her waiver of the most basic and fundamental

rights guaranteed by our Constitution?

¶ 145 Youth Officer

¶ 146 We take artificial comfort in the fact that children cannot be interviewed without a youth

officer or interested adult. But we fail to question what the youth officer's job and loyalty really

are. Could the youth officer tell the child, for example: "Look, don't say anything until you get a

- 42 - No. 1-11-3075

lawyer"? Youth officer Nolan testified that he was assigned to investigate the child abuse to

Diamond and that he met with the detectives at the scene and went to the hospital to check on the

child's condition. He testified that youth officers are responsible for processing juvenile arrests,

investigating child abuse and offenses against children and looking for missing persons. He

testified that part of his job was to ensure that a juvenile suspect was treated properly while in

custody.

¶ 147 But youth officer Nolan left this juvenile defendant, who was still not being charged as an

adult, alone from 3:30 p.m. to about 7:30 or 8 p.m. at the police station where he was punched by

police personnel. Further, youth officer Nolan did not talk to the desk sergeant or the watch

commander about the injury to the juvenile suspect, nor did he do anything to seek medical

attention for the juvenile. We cannot say with any confidence that youth officer Nolan was

protecting the rights of this juvenile suspect. In fact, it appears clear from his assignment that he

was there to investigate what happened to Diamond, which is a troubling conflict of interest to

his role regarding Richardson.

¶ 148 When asked if he was present to safeguard Richardson's rights during questioning while

Richardson's mother was also present, Nolan answered that he was there because it was part of

the child abuse investigation.

¶ 149 Somehow we buy into the idea that the youth officer is there to protect the juvenile's

rights? How exactly was that done in this case where Nolan left Richardson alone in custody

where he was punched and then Nolan did nothing about the injury? How exactly was this done

when Nolan clearly believed his primary responsibility was to investigate what happened to

Diamond, not to protect Richardson? When you get right down to it, if the youth officer is there

to safeguard the juvenile's rights, why in the world would any juvenile ever answer questions

without an attorney? What exactly are those safeguards?

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¶ 150 In this case in particular, youth officer Nolan testified that he was simultaneously

investigating first the child abuse and then the death of Diamond, while also sitting in with

Richardson during the questioning.

¶ 151 Neither the defense counsel nor appellate counsel argued that the youth officer's failure to

protect Richardson from physical harm, and that leaving him alone in the police station, helped

create an atmosphere of coercion that led to Richardson's statements or that youth officer Nolan

had an impermissible conflict of interest in this matter.

¶ 152 Interested and Competent Adult

¶ 153 Then we look at the interested adult. Someone in this case should have questioned

whether the parent with Richardson was actually an interested and competent adult, and capable

of protecting his rights. We want to believe that parents will do that and are capable of it, yet we

know from experience that not all parents are equal. Some are drug addicts, some are alcoholics,

some have criminal cases of their own they need to protect, some are just dopey, some have

already given up on their own child, more likely from poor parenting than because the child is

incorrigible. Who are these interested adults? Why do we persist in believing that a parent, any

parent, is good enough?

¶ 154 In Richardson's case his mother was there and wanted to leave. We know from the pre-

sentence report that she was a crack cocaine addict and alcoholic. What we see in the video as a

submissive mother may just as well have been a mother who was coming down from her own

high and was physically and mentally ineffective when it came to her son.

¶ 155 Further, this is the same mother who pushed him out to live with her boyfriend's sister to

babysit that woman's three children. We do not know why Richardson was not living with his

mother. Maybe he was better off, since she beat him regularly, but he was still legally a child of

16, with no loving mother and no connection at all to his father.

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¶ 156 "In situations where an adult other than a member of the police or prosecution was

present at the custodial interrogation of a juvenile, challenges by the juvenile to the admission of

evidence based on the incompetency of the adult can be roughly grouped into three categories:

(1) challenges based on an insufficiently close bond between the adult and the juvenile (a lack of

interest); (2) challenges based on the adult's failure to understand the situation; and (3)

challenges based on a conflict of interest between the juvenile and the adult." Andy Clark,

"Interested Adults" with Conflicts of Interest at Juvenile Interrogations: Applying the Close

Relationship Standard of Emotional Distress,

, 914 (2001).

¶ 157 In Richardson's case one could argue that his mother was not sufficiently interested, was

not able to fully understand the gravity of the situation (since no one told either Richardson or

his mother that the charge would be murder) and possibly had a conflict of interest since she was

the victim's grandmother.

¶ 158 Rule 402 Conference

¶ 159 Defense Counsel asked for a Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 2012)) conference

and the judge gave Richardson his Rule 402 admonishments:

"THE COURT: Mr. Richardson, your attorney has asked for a 402 conference. That

means I am going to sit down with your lawyer and the lawyer from the state's attorney's

office, go over your background, as well as the facts of this case. Do you understand?

RICHARDSON: Yes.

THE COURT: If you don't like the results of the conference I am still going to be the

judge that hears your bench trial, should you have a bench trial, do you understand?

RICHARDSON: No.

THE COURT: Knowing that, do you still want me to have the conference.

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RICHARDSON: Yes."

¶ 160 Once Richardson said "No" the trial judge had a duty to explain in understandable terms

that she would still be the judge who heard the whole trial. She did not.

¶ 161 Defense counsel did not object or raise this as an issue in the motion for a mistrial or

motion for a new trial. Appellate counsel did not raise this as an issue of substance related to the

judge's behavior or as an issue of ineffective assistance of defense counsel.

¶ 162 Office of Professional Standards Report

¶ 163 The OPS report on Richardson's injuries was presented to the court and to the defense

and State, and the State suggested that some stipulations might be entered regarding the report,

but defense counsel did not introduce the report into evidence in the motion to suppress, nor did

any stipulations result from that report. The court did review the OPS report in camera, but

since it was not introduced as evidence and it is not part of the record we have no idea what, if

any, impact the information in that report could have had on this trial.

¶ 164 The State of Illinois has taken some steps to solve part of this problem. By passing

section 103-2.1(f) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-2.1(f) (West

2010)), Illinois has required that all custodial interviews in murder cases must be recorded. This

of course does not help Richardson since he was arrested for child abuse, upgraded to murder, in

2001, but this change is clearly going to make custodial interviews in murder cases transparent.

"The only fair reading of the statute is that the legislature's clear intent was to ensure that

statements related to murder investigations were not the result of coercive pressures of custodial

interrogation in a police facility but, rather, were both voluntary and reliable." People v. Harris,

, quoted in People v. Dominique Clayton,

.

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¶ 165 Perhaps we will see the day when all juvenile interrogations will be made with an

appointed attorney and be recorded as well. That would prevent any question of abuse, coercion

or voluntariness of juvenile confessions. As Justice McMorrow said in her dissent in G.O.:

"Individuals of greater age and experience could find these same circumstances overwhelming

and coercive. To a boy of G.O.'s youth and presumed naivete, these circumstances could be

sufficiently overpowering as to raise a genuine doubt whether any confession made in this

atmosphere would be the product of a free will." In re G.O.,

(2000)

(McMorrow, J., dissenting).

¶ 166 Involuntary Manslaughter Instruction

¶ 167 Both the appellate and supreme courts focused on the motion to suppress because that is

the only argument his appellate attorney made regarding his mental capacity.

¶ 168 But the missing evidence was particularly important information for the court to have

when, for example, it was ruling on the defense requested instruction on involuntary

manslaughter. Defense counsel argued that Richardson admitted the acts he took against his

daughter, but that if he testified he did not know he was doing great bodily harm, and that it was

up to the jury to "decide if he intentionally caused her death or great bodily harm or whether the

death was caused unintentionally by acts which were performed recklessly *** the medical

examiner testified to a significant number of injuries. Those were the result of his action *** not

the intent of his actions and the intent of his actions needs to be decided by the jury."

¶ 169 The trial court responded: "The Court is aware of the current case law which is meant to

include lesser-included instructions when there is any evidence at all to support those lesser-

included instructions. In this case the court finds that there is no evidence whatsoever for the

jury to consider regarding recklessness ***. There is no evidence to support recklessness ***."

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¶ 170 No evidence. No psychological evaluation, no testimony from Richardson about his

mental health, no testimony from his mother, teachers, principal, friends. No evidence.

¶ 171 Once again the missing evaluation, expert testimony or occurrence testimony from

family, teachers, principals and friends had a disastrous effect on Richardson's case. Defense

counsel gave the judge nothing on which she could have remotely considered the requested

involuntary instruction, a point which was highlighted in Richardson III, when the appellate

court once again pointed to the fact that there was "no evidence" of recklessness to support the

involuntary instruction. There was no evidence because counsel did not provide any. Counsel

had a duty to provide the best possible defense, and this omission is not only ineffective

assistance of trial counsel but is also ineffective assistance of appellate counsel who did not raise

the missing evidence in relation to the element of intent for murder or the denied involuntary

instruction.

¶ 172 "[A]n instruction is justified on a lesser offense where there is some evidence to support

the giving of the instruction. People v. Jones,

(1997). If there is some

credible evidence in the record that would reduce the crime of first degree murder to involuntary

manslaughter, an instruction should be given. People v. Foster,

(1987); People

v. Ward,

(1984). Where some evidence supports the instruction, the circuit

court's failure to give the instruction constitutes an abuse of discretion. Jones,

.

The basic difference between involuntary manslaughter and first degree murder is the mental

state that accompanies the conduct resulting in the victim's death. Foster,

.

Involuntary manslaughter requires a less culpable mental state than first degree murder. *** [A]

defendant commits involuntary manslaughter when he performs acts that are likely to cause

death or great bodily harm to another and he performs these acts recklessly. 720 ILCS 5/9-3(a)

(West 1994)." (Emphases added.) People v. DiVincenzo,

(1998). In

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DiVincenzo the supreme court found that the involuntary manslaughter instruction should have

been given in part because "[s]ome of this evidence could have suggested to the jury that

defendant acted recklessly but without knowledge of a strong probability of death or great bodily

harm. *** Determination of defendant's mental state may be inferred from the circumstantial

evidence [citation], and this task is particularly suited to the jury." (Emphasis added.)

DiVincenzo,

.

¶ 173 The instruction on involuntary manslaughter was critical to Richardson's defense case,

yet the defense counsel did not do the single most important thing she could have to get that

instruction before the jury: she did not provide any evidence to give context to his action. She

was ineffective in the extreme.

¶ 174 Intent

¶ 175 The defense in closing argued that the defense was not contesting the significant number

of injuries to Diamond, was not contesting the fact of the injuries, was not contesting the result,

but was contesting the intent of his actions. Defense counsel, absent any evidence of

Richardson's mental capacity when he was 16, relied, instead, on the fact that he was a teenager,

left to fend for himself in the home of his mother's boyfriend's sister, to take care of her three

children. Defense counsel argued, with no evidence having been presented, that minors do not

have the mental or emotional capacity to be treated like an adult.

¶ 176 Defense counsel made a motion for mistrial based on the denial of the instruction on

involuntary manslaughter.

¶ 177 The trial court denied the motion saying: "[T]he Court is well aware that if there is any,

and I will emphasize any credible evidence to support a reckless act I would have given the

involuntary instruction. *** [T]here is no evidence of recklessness. *** There is not one scintilla

of evidence that the Defendant did anything but beat this child over a period of time ***. Your

- 49 - No. 1-11-3075

motion for a mistrial is denied. And again I would feel more comfortable giving them a

possession of a stolen motor vehicle instruction because there's equal amount of evidence to

support that as there is reckless conduct here." (Emphases added.)

¶ 178 The appellate court stated: "There is not a scintilla of evidence to support a finding that

defendant acted recklessly rather than knowingly and intentionally." (Emphasis added.)

Richardson III,

.

¶ 179 The supreme court found: "[A]t the suppression hearing, defendant presented no evidence

or argument of any mental deficiency that would render his inculpatory statement involuntary,

and the circuit court made no findings related thereto." (Emphasis added.) People v.

Richardson,

(2009).

¶ 180 No evidence. No evidence. No evidence. The counsel for defense presented no evidence

of recklessness. How much more clear must it be that counsel for defense was ineffective?

¶ 181 Jury Question

¶ 182 Yet, even with no evidence her argument must have meant something to the jury, because

they sent out a note asking: "Does the Jury have an option of finding him guilty of a lesser

charge? What would be the minimum punishment?"

¶ 183 The trial court answered: "You have the law that applies to this case. You are not to

consider possible punishment in the case. It is the function of the trial court to sentence the

defendant should you return a verdict of guilty. Please continue your deliberation."

¶ 184 Without an instruction on involuntary manslaughter, the jury was faced with no option.

The defendant admitted inflicting the injuries to Diamond. He said he did not intend to murder

her. Defense counsel presented no evidence to establish his lack of intent. The jury found him

guilty of murder.

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¶ 185 In Patterson,

, the supreme court held that the defendant had not shown

ineffective assistance of counsel where his defense attorney did not present sufficient evidence of

his mental functioning in relation to the voluntariness of his confession. The court found that

even without the confession the overwhelming evidence supported his conviction. "Given the

overwhelming evidence corroborating the victim's testimony and weighting against the

defendant's account, we are not persuaded that it is reasonably probable that a jury would have

acquitted defendant even in the absence of any reference to his confession at trial. The

reasonably probable impact of counsel's alleged error is not sufficient to undermine our

confidence in the outcome of the trial. Therefore, defendant has failed to establish the prejudice

prong of the Strickland test ***." Patterson,

.

¶ 186 In Richardson's case every judge who has heard evidence or looked at the case has said

that the missing evidence would have been important to their decision. The jury asked about a

lesser-included offense. There is more than sufficient reason to believe that the defense failure to

provide evidence on this matter did undermine confidence in this trial.

¶ 187 Ineffective Assistance of Defense Counsel

¶ 188 To say that Richardson received ineffective assistance of trial counsel and ineffective

assistance of appellate counsel is a serious undercount of the things that went wrong in this case.

¶ 189 In the motion to suppress, defense counsel did not specify what, if any, City of Chicago

police department rules, regulations or procedures were involved in the arrest, lock-up process,

detention, custody or questioning of Richardson, who, for the first nine hours after his arrest was

not being held as a juvenile charged as an adult, but was in fact being held as a juvenile arrested

for child abuse.

¶ 190 Juvenile in Custody

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¶ 191 Defense counsel did not question anyone about the time Richardson's mother was at the

police station but did not speak alone with her son before he was questioned.

¶ 192 Defense counsel did not question anyone about the fact that between his arrest at 3:30

p.m. and the time the victim died and a the charge of murder was added to the arrest report,

Richardson was technically and in reality a juvenile himself arrested for child abuse and was

entitled to whatever procedures, rules and regulations were in place in the Chicago police

department in February 2001 for the arrest and detention of a juvenile.

¶ 193 Defense counsel did not question anyone about what those procedures, rules and

regulations actually were in February 2001.

¶ 194 Lockup Keeper

¶ 195 Defense counsel did not question the lockup keeper, Davis, star No. 302689, about what

happened to Richardson in the lockup that resulted in his swollen eye.

¶ 196 Defense counsel did not question the lockup keeper, Davis, to determine why he signed

the lockup report and his "visual check" of Richardson at 4 p.m. and that question No. 1: "[D]oes

arrestee have obvious pain or injury?" Davis answered "no." It is uncontroverted that the injury

to Richardson's eye occurred in the lockup. The timing of the lockup report ("Moving of Arrestee

Out of & Into Arrest/Detention Facility") at 4 p.m. raises several other questions, the very least

of which is why, if Richardson was injured in the lockup, the visual report does not indicate the

injury, or why Richardson, who was still just an arrested juvenile at 4 p.m., and not a juvenile

being charged as an adult, was not given medical attention and was not made available to the

OPS investigators who were called in after his injury.

¶ 197 Defense counsel took it as gospel that the investigation into the injuries to Diamond took

precedence to the OPS investigation into Richardson's injuries at the hands of police personnel

and did not call on anyone from OPS or in management of the police department to verify that,

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in fact, it was department policy that made it impossible for OPS to talk to Richardson while he

was waiting, from 4 p.m. until the detectives started questioning him about the injuries to

Diamond at 9:08 p.m. and was still only a juvenile under arrest for child abuse.

¶ 198 Miranda Warnings

¶ 199 Defense counsel did not question anyone about the fact that Richardson, still a juvenile

under arrest for child abuse, was questioned at 9:08 p.m. and was, according to police testimony

given his Miranda rights by youth officer Nolan; however no signed waiver of those rights, by

either or both Richardson and/or his mother is in the record.

¶ 200 Defense counsel did not question anyone about the fact that Richardson did not have an

opportunity to talk to his mother alone before the 9:08 p.m. questioning.

¶ 201 Defense counsel did not question anyone about the fact that although ASA Heil testified

that he gave Richardson his Miranda rights at 10 p.m. there is no signed waiver of those rights in

the record.

¶ 202 Defense counsel did not question anyone about the fact that although ASA Heil testified

that he gave Richardson his Miranda rights again at 12:28 a.m. on February 10, 2001, there is no

signed waiver of those rights in the record.

¶ 203 Defense counsel did not question anyone about the fact that while ASA Heil did tell

Richardson that he could be tried as an adult, after Diamond died neither Heil nor anyone else

told the defendant that he would be charged with murder, leaving the defendant to mistakenly

believe that he was still being charged with child abuse. A review of the arrest report makes it

clear that the charge of murder was added at a different time than the original arrest, which

makes sense since the child did not die until much after Richardson was arrested at 3:30 p.m. on

February 9, 2001.

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¶ 204 Defense counsel did not question anyone about the fact that the youth officer was

wearing two hats: he was, according to his own testimony, investigating the abuse and

subsequent death of Diamond and also appeared to be acting as the youth officer to protect the

rights of Richardson, an apparent and disturbing conflict of interest.

¶ 205 Defense counsel did not question Richardson or Richardson's mother about her own

physical and mental ability at the time he was being questioned, although Richardson clearly

knew and could have told Defense counsel that his mother was a cocaine addict and drank a fifth

of whiskey a day, which should have raised serious concerns about her own competence as an

interested adult during his questioning.

¶ 206 Defense counsel did not question Richardson or Richardson's mother about her sympathy

for the child victim, Diamond. She was, after all, the child's grandmother, and as such may have

had a conflict of interest between her grandchild and her own son, the son she had pushed out to

fend for himself at the apartment of her boyfriend's sister.

¶ 207 Defense counsel did not question Richardson's mother about his mental ability, his school

progress, or his special education or the five different schools he attended.

¶ 208 Defense counsel did not question Richardson's mother about what discipline she used on

Richardson, or her alcohol or drug use during her pregnancy and his childhood.

¶ 209 Defense counsel did not question any of Richardson's teachers, counselors, school

principals about his mental ability, his school progress, or his special education.

¶ 210 Defense counsel did not question any family or friends about his mental ability, his

school progress, or his special education.

¶ 211 Defense counsel did not question Richardson himself about his mental ability, his school

progress or his special education or his mother's discipline techniques.

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¶ 212 Defense counsel did not, after four full years to prepare for trial, provide any medical or

psychological evaluation of Richardson. This fact has been dealt with by the appellate court and

by the supreme court, but only in the context of the motion to suppress.

¶ 213 Defense counsel's failure to provide any evidence of Richardson's mental ability, his

school progress or his special education had a fundamental and drastic negative impact, not only

on the motion to suppress, but later when confronting the State on the issue of his intent to

commit murder, and as has been shown above in the instruction for involuntary manslaughter

issues.

¶ 214 Ineffective Assistance of Appellate Counsel

¶ 215 Appellate counsel failed to raise the issue of the defense counsel's failure to provide

evidence of Richardson's mental ability, his school progress or his special education as regards

the issue of intent to commit murder, an element of the offense and something that the State was

required to prove beyond a reasonable doubt. This missing evidence was critical when the trial

court said, in reference to the defense request for an instruction on involuntary manslaughter:

"there is not a scintilla of evidence [to support the instruction]."

¶ 216 This missing evidence was critical in the appellate court. And, this missing evidence was

critical in the supreme court.

¶ 217 Res Judicata

¶ 218 The missing evidence created a gaping three-dimensional hole in the defense case which

was never repaired. The defense did not provide the evidence at the motion to suppress; it did not

provide the evidence anywhere as part of the defense. The appellate counsel did not raise the

issue of the missing evidence as part of the overall defense or on the issue of the denied

instruction or the State's burden to prove intent beyond a reasonable doubt. So while the missing

evaluation would be res judicata for defense counsel in terms of the motion to suppress because

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it was raised on direct appeal, and for appellate counsel because it was raised on appeal and in

terms of intent because it could have been raised on appeal, it cannot be res judicata for a

postconviction petition in terms of ineffective assistance of appellate counsel. The issue of the

missing evaluation is still very much alive for the purpose of a postconviction petition, a point

my colleagues have missed.

¶ 219 In this appeal, the court's dismissal of the first stage pro se postconviction petition as

frivolous and without merit was based on the fact that Richardson argued again the failure of his

defense counsel to provide the evidence to support the motion to suppress. Richardson, acting

pro se, could never be expected to articulate the impact of the failures in the overall defense case,

the denied instruction or any other failure of the defense or appellate counsel.

¶ 220 The purpose of a postconviction proceeding is to permit inquiry into constitutional issues

involved in the original conviction and sentence that were not, nor could have been adjudicated

previously upon direct appeal. People v. Peeples,

(2002) (citing People

v. Haynes,

(2000)). Because a proceeding brought under the Act is a

collateral attack on defendant's conviction and/or sentence, the doctrine of res judicata bars

consideration of issues that were raised and decided on direct appeal. Peeples,

(citing People v. Towns,

(1998)). Further issues that could have been

presented on direct appeal but were not, are waived for purposes of postconviction review.

Peeples,

; Haynes,

; Towns,

.

¶ 221 However, the doctrines of res judicata and waiver will be relaxed in three situations:

where fundamental fairness so requires; where the alleged waiver is attributable to the

incompetence of appellate counsel; or where the facts relating to the postconviction claim do not

appear on the face of the original record. Peeples,

-11 (citing People v.

Mahaffey,

(2000)).

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¶ 222 An evidentiary hearing is warranted on a postconviction claim only where the allegations

in the postconviction petition, supported where appropriate by the trial record or accompanying

affidavits, make a substantial showing that the constitutional rights of the defendant have been

violated. Peeples,

; Haynes,

.

¶ 223 The doctrines of res judicata and forfeiture are relaxed in a proceeding on a petition for

postconviction relief where fundamental fairness so requires, where the forfeiture stems from the

ineffective assistance of appellate counsel, or where the facts relating to the issue do not appear

on the fact of the original appellate record. People v. English,

(citing

People v. Williams,

(2004)).

¶ 224 "[W]hen a petitioner's claims are based upon matters outside the record, this court has

emphasized that 'it is not the intent of the [A]ct that [such] claims be adjudicated on the

pleadings.' People v. Airmers,

(1966). See also People v. Clements,

(1967) (same). Rather, the function of the pleadings in a proceeding under the Act 'is to

determine whether the petitioner is entitled to a hearing.' Airmers,

. Therefore,

the dismissal of a post-conviction petition is warranted only when the petition's allegations of

fact – liberally construed in favor of the petition and in light of the original trial record–fail to

make a substantial showing of imprisonment in violation of the state or federal constitution."

People v. Coleman,

(1998). "After reviewing the entire transcript of the

original trial, we are unable to conclude that there exists no reasonable likelihood that [the

missing evidence] would not have affected the jury's deliberative process and judgment."

Coleman,

.

¶ 225 "A ruling on an initial postconviction petition has res judicata effect with respect to all

claims that were raised or could have been raised in the petition. [Citation.] Section 122-3 of the

Act provides that any claim of a substantial denial of a constitutional right not raised in a

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defendant's original postconviction petition is waived. [Citation.] 'There is less interest in

providing a forum for the vindication of a defendant's constitutional rights in a successive

proceeding because the defendant has already been afforded an opportunity to raise such

allegations in his first petition.' " People v. Thompson,

(2008) (quoting

McDonald, 364 Ill. App. 3d at 393).

¶ 226 In fact, in People v. Wilson, this court held: "Accordingly, an exception to barring a claim

based on res judicata in a first-stage postconviction proceeding applies 'where [the] facts relating

to the claim do not appear on the face of the original appellate record.' " Wilson,

, ¶ 16 (quoting People v. Blair,

(2005), and citing People v.

Harris,

(2002), and quoting People v. Mahaffey,

(2000)).

¶ 227 Since our colleagues on the appellate court in Richardson III have already found that the

matter of the missing evidence is outside the record, it would seem that the majority is being

inconsistent in this regard.

¶ 228 This case is similar to People v. Tate,

, in which the defendant's

postconviction petition alleged his defense counsel was ineffective for failing to call four

witnesses -- two alibi and two occurrence witnesses. The State argued that his claims were

forfeited because he did not include them in his posttrial motion. The court held that "Tate's

ineffective-assistance claims thus are based on what trial counsel should have done, not on what

counsel did. An ineffective assistance claim based on what the record discloses counsel did, in

fact, do is subject to the usual procedural default rule. People v. Erickson,

(1994). 'But a claim based on what ought to have been done may depend on proof of matters

which could not have been included in the record precisely because of the allegedly deficient

representation.'

Thus, this court has 'repeatedly noted that a default may not preclude an

ineffective-assistance claim for what trial counsel allegedly out to have done in presenting a

- 58 - No. 1-11-3075

defense.' People v. West,

(1999)." Tate,

. Here we

consider what Richardson's trial counsel ought to have done, and not default, forfeiture or res

judicata can apply where Richardson could not have argued that at trial or in his motion for a

new trial. Nor could his appellate counsel have argued it because it was outside the record.

¶ 229 Justice Murphy had the same view in People v. Godard,

,

and his logic is persuasive. He held that the circuit court erred when it dismissed defendant's pro

se postconviction petition at the first stage of proceedings on the basis of waiver and res judicata

where defendant's claims are based on facts that were not part of the record on direct appeal.

There the defendant alleged ineffective assistance of counsel for failing to file a motion to

suppress a confession. The circuit court dismissed the claim on the basis of res judicata and

waiver. Justice Murphy held: "an exception to this rule [res judicata and waiver require

summary dismissal] exists where 'facts relating to the claim do not appear on the face of the

original appellate record' because although some claims may potentially be presented on appeal,

the reviewing court may be incapable of considering those claims under the rules governing

appellate review. Id. at 372. Thus, where a claim's evidentiary basis is de hors the record,

waiver and res judicata do not apply, irrespective of whether the claims could have been raised

by a party on direct appeal and regardless of 'whether their supporting facts are available as a

practical matter at the time of the direct appeal.' [Coleman,

]." Id. at ¶ 11.

Justice Murphy went on to say that while failure to file a motion to suppress may be seen as a

matter of trial strategy, where such a motion is the defendant's strongest or only viable defense,

counsel's failure to file the motion "may constitute ineffective assistance [of counsel]" "because

it would have deprived the State of its primary and strongest piece of evidence and the failure to

bring such a motion cannot be considered sound or valid trial strategy." Godard,

, ¶ 18. Richardson is saying if his defense counsel had presented evidence of his

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mental ability it would have brought into question the voluntariness of his confession and

rebutted the state's case of intentional murder. He claims that this failure by his defense counsel

could not possibly have been sound trial strategy, since, after the trial, his evaluation presented

compelling information about his mental ability four years after his arrest, and logically he could

not have been more mentally able at the age of 16 than at the age of 20 making it at least

arguable that his defense counsel was ineffective and that it is reasonably probable that the result

of his jury trial would have been different. His petition is not frivolous or without merit because

it has an arguable basis in both law and fact.

¶ 230 Judge's Behavior

¶ 231 Neither the defense counsel nor appellate counsel claimed the judge was so extremely

sarcastic that it had a chilling effect on the defense attorney, and her sarcasm could be interpreted

as bias against this defendant as can be shown in her response to defense counsel's motion to

suppress:

"DEFENSE COUNSEL: May I argue?

THE COURT: You can certainly argue, if you could do it with a straight face. I'd

appreciate it if you didn't laugh during your argument. Go on. And I will try not to

laugh during my findings." (Emphasis added.)

¶ 232 These remarks were made in open court in the presence of the defendant. We do not

know how the defense attorney or her client reacted to the remarks of the judge at this point in

the case, but remarks like this could hardly have been a signal that the judge had no opinion.

¶ 233 And again the trial judge was sarcastic in the jury instructions as seen above in her

remark about stolen motor vehicle instructions.

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¶ 234 "Illinois courts have long upheld the right of an accused to a fair and impartial trial by

jury, 'free from influence or intimation by the trial court.' " People v. Mitchell,

(1992) (quoting People v. Sprinkle,

(1963), and citing People v.

Santucci,

(1962)). In Mitchell the judge mocked the defense counsel in front of the

jury stating: " 'Well, you can ask questions like that until midnight, they didn't go to the garage,

they didn't go to the park, they didn't go to the moon, they just went to the station and that's it.' "

Mitchell,

. The appellate court found that the "mockery of the defense

greatly undermined counsel's theory *** and could not help but communicate to the jury what

the judge was thinking. The judge's attack on defense counsel *** coupled with the judge's

hostile attitude, *** denied Mitchell the fair trial to which he is entitled." Mitchell,

. In Richardson the judge was most hostile to the defense out of the presence of the

jury, but the chilling effect was just as unacceptable.

¶ 235 In Richardson's motion to suppress hearing, outside the presence of the jury, the court

was clearly sarcastic and showed a very certain mind-set of the judge that the defendant's

confession was voluntary. In People v. Ojeda,

(1969), faced with a

judge's remarks about the veracity of a witness, the appellate court held: "Of more concern,

however, is the possibility that the improper comments, coming when they did, reflected a

preconceived attitude on the part of the trial judge regarding the defendant's guilt. Since it is

fundamental that a Magistrate resolve disputed questions of fact only after hearing all of the

evidence with an open mind, we must reverse and remand this cause for a new trial." In Ojeda

the court's comments came during the actual trial, unlike here, where the court's comments came

directly after the defense presented its testimony in the motion to suppress. But the comments

themselves demonstrate not only the court's own mind-set, they also demonstrate how glaring the

failure of the defense to call any witnesses or present any evidence as to Richardson's mental

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ability was, not only for the motion to suppress, but later, in the trial toward the issue of intent,

and finally, in dealing with the question of the involuntary instruction. This judge believed

Richardson was guilty of murder and no evidence to provide insight into involuntariness of the

confession or recklessness in his actions toward Diamond was provided. At the motion to

suppress the judge was rude and sarcastic beyond any acceptable range, and even though she was

correct that there was no evidence presented, her choice of words and manner had a continued

effect on defense throughout this trial.

¶ 236 And, we cannot overlook the fact that this judge even before the trial announced to the

entire group of prospective jurors that while the case was important it would not take up much of

their time. It can be argued that the judge was telling the jury that the whole trial was merely a

pro forma exercise, which may have been interpreted by some or all of the jurors to believe that

the judge thought the defendant was guilty and they should be able to come to that conclusion

quickly. This hypothesis is bolstered by the judge's answer to the note sent out by the jurors after

they began their deliberations.

¶ 237 Their note said: "Does the jury have an option of finding him guilty of a lesser charge

but what would the minimum punishment be?" The court wrote back: "You have the law that

applies to this case. You are not to consider possible punishment in this case. It is the function

of the trial court to sentence the defendant should you return a verdict of guilty. Please continue

your deliberations." Defense counsel argued during the discussion of that response that it

sounded like the judge was telling the jury that the defendant was guilty. The judge disagreed.

However, by repeating the word "guilty," instead of stopping at "you are not to consider possible

punishment in this case," the judge reinforced the very thing that the jury was asking about: we

think he's guilty of something, but we're not quite sure it's murder. And, because the judge

refused to give the involuntary instruction, again, because defense counsel did not put on any

- 62 - No. 1-11-3075

evidence to support it, the jury had nowhere else to go. The combination of the judge's mind-set

and the defense counsel's failure produced the perfect storm with Richardson right in the middle.

¶ 238 In People v. Johnson,

, the appellate court considered the

failure of the trial court to comply with Zehr and Illinois Supreme Court Rule 431(b) (eff. May 1,

2007). Using a plain error analysis the court found that the evidence was closely balanced, that

the trial court erred, and reversed and remanded. In the same case the appellate court was also

asked to consider whether the judge's claimed hostility toward defense counsel was reversible

error. The judge in the presence of the jury made disparaging remarks about defense counsel.

The appellate court reversed and remanded on other grounds but took pains to point out that the

judge's comments toward defense counsel outside the presence of the jury "were not 'reasonably

required for the underlying progress of the trial.' " (Internal quotation marks omitted.) Johnson,

, ¶ 81 (quoting People v. Eckert,

(1990)).

The appellate court noted that "the need for judicial restraint in the court's conduct and remarks

is not limited to the presence of the jury but must be maintained throughout all of its dealings

with the litigants who come before it." (Emphasis added.) Johnson,

, ¶

80.

¶ 239 In Richardson, the court itself called attention to the fact that defense counsel did not

present any evidence of Richardson's mental competence, and Richardson admitted inflicting the

injuries on his daughter, so it can hardly be said within what actually happened that this was a

close case. However, if defense counsel had presented evidence of his limited mental ability and

evidence of his own childhood, it could be argued that on the issue of intent, and on the issue of

recklessness, it might have been close – close enough for the jury to have had the benefit of the

information and the alternate instruction.

- 63 - No. 1-11-3075

¶ 240 The judge's sarcasm created a specific problem for defense counsel. "The making of an

objection to questions or comments by a judge poses a practical problem for the trial lawyer. It

can prove embarrassing to the lawyer, but, more importantly, assuming that most juries view

most judges with some degree of respect, and accord to them a knowledge of law somewhat

superior to that of the attorneys practicing before the judge, the lawyer who objects to a comment

or question by the judge may find himself viewed with considerable suspicion and skepticism by

the very group whom his is trying to convert to his client's view of the facts, thereby perhaps

irreparably damaging his client's interests. If he fails to object, he may, on appeal, be faced, as

defendant here is, with the claim that his failure to act has precluded consideration of the error,

and it is not always a sufficient answer to this situation to say that the objection can be made and

ruling secured outside the hearing of the jury." (Internal quotation marks omitted.) People v.

Mays,

(1989).

¶ 241 If this is true where the judge's comments are made in front of a jury, it is no less true

when the judge's sarcasm is directed to defense counsel before the trial has even begun. No

public defender, assigned to a specific courtroom in Cook County, could be expected to

complain to the judge directly about the judge's own bias or sarcasm without being afraid of

effectively burning all bridges with the judge. It is inconceivable that any defense attorney

would take the risk, let alone a public defender who has, by the nature of the job, to show up in

front of that judge on a daily basis.

¶ 242 No Signed Miranda Waivers

¶ 243 Neither the defense attorney nor the appellate attorney raised the issue of the failure of

the police or the assistant State's Attorney to get a signed Miranda waiver at any of the

questionings before the video statement.

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¶ 244 Neither the defense attorney nor the appellate attorney raised the issue that the video

consent form that was signed is not a substitute for a signed Miranda waiver.

¶ 245 Neither the defense attorney nor the appellate attorney raised the issue that although the

video confession does acknowledge Miranda warnings, and an agreement to proceed by the 16-

year-old and his mother was in the room, the mother did not affirmatively agree to proceed with

the video warnings, the same mother who testified that the police had been abusive to her.

¶ 246 No Notice of the Actual Charge of Murder

¶ 247 Neither the defense attorney nor the appellate attorney raised the issue that nowhere in

the video confession did the assistant State's Attorney or the police tell Richardson that he would

be charged with murder.

¶ 248 Neither the defense attorney nor the appellate attorney raised the issue of Detective

O'Connell's failure to tell Richardson what he was being charged with when, as O'Connell

testified, he told Richardson that he could be charged as an adult but did not say the charge

would be murder.

¶ 249 Neither the defense attorney nor the appellate attorney challenged the court's statement

that the defendant "implicated himself in murder" --the defendant was told he was being charged

with child abuse. He was told later that his child died. No one ever mentioned the word

"murder." His entire reaction might have been significantly different if a murder charge was

made known to him.

¶ 250 Neither the defense attorney nor the appellate attorney challenged the court's statement

that Richardson was "advised" he was facing a murder charge, when nothing in the record

supports that statement.

¶ 251 Richardson's Injury

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¶ 252 Neither the defense attorney nor the appellate attorney raised the issue of a possible

concussion leading to confusion or fatigue in reference to his two unrecorded sessions of

questioning by the police and later with the assistant State's Attorney, and his one videotaped

statement, although the defendant repeatedly stated he had been hit in the lockup, fell and hit his

head, which may have indirectly resulted in his decision to be questioned before talking to an

attorney or to the fact that no one sought medical attention for the juvenile in custody.

¶ 253 Neither the defense attorney nor the appellate attorney raised the issue that Richardson

was already injured and had hit his head when Detective O'Connell questioned him the first time,

and that questioning was done without a signed Miranda waiver.

¶ 254 Richardson's Illiteracy

¶ 255 Neither the defense attorney nor the appellate attorney raised the issue of Richardson's

illiteracy at the time he was arrested and questioned and the impact that may have had on his

ability to knowingly agree to be questioned without an attorney the first time Detective

O'Connell questioned him or the second time he was questioned or in the video statement. Nor

did anyone ask if the first police officer on the scene, Officer Hayes, who clearly got some

information from Richardson, and who was with him from about 3:30 to about 9:08 p.m. that

evening ever gave him Miranda warnings.

¶ 256 OPS Not Allowed to Speak to Richardson Before He Was Questioned

¶ 257 Neither the defense attorney nor the appellate attorney challenged the procedure, or even

verified it was the procedure at the time, that an OPS investigation of injury to a juvenile not

charged as an adult had to wait until after the juvenile is questioned.

¶ 258 Mother Not Allowed to Speak to Richardson Before Questioning

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¶ 259 Neither the defense attorney nor the appellate attorney challenged the fact that

Richardson's mother was not allowed to speak to her juvenile son alone before the questioning

began.

¶ 260 Failure of Youth Officer to Protect Richardson from Injury

¶ 261 Neither the defense attorney nor the appellate attorney raised the fact that youth officer

Nolan left Richardson, a juvenile charged with child abuse, alone at the police station where he

was injured by police personnel. Richardson admitted that none of the police personnel who

questioned him had injured him and that he was injured in a different place than he was

questioned. However, he was arrested and taken to the Second District where he was injured in

the lockup, and then moved upstairs in the same building to the rooms used for questioning by

Area 2 Detectives. Officer Hayes took him to the building and moved him from the Second

District on the first floor, to the lockup downstairs and then later to Area 2 upstairs. The same

building had the staff who injured him and the staff who questioned him. To an immature 16-

year-old it is more likely than not that the whole building seemed to be the same thing: police

department facilities, staffed by police department personnel. Do we really believe that

Richardson when he was being questioned knew and understood the different layers of police

staffing, or that he was safe from further abuse?

¶ 262 Questioning Without a Youth Officer or Interested Adult

¶ 263 Neither the defense attorney nor the appellate attorney challenged the court's assertion

that Richardson was never questioned outside the presence of the youth officer, since he was

arrested and with police from 3:30 to 9:08 p.m. before youth officer Nolan saw him for the

questioning. He was with Officer Hayes at the time of his arrest. He clearly made some sort of

statements and was clearly asked some questions by someone: his arrest did not occur in silence.

He was in the lockup without a youth officer for some period of time, then he was back again

- 67 - No. 1-11-3075

with Officer Hayes until 9:08 when the questioning by Detective O'Connell began. Officer

Hayes did talk with Richardson at the time of his arrest and it is clear that Officer Hayes did ask

Richardson what happened. That would be questioning without the presence of a youth officer.

¶ 264 Richardson's "Appearance" in the Video Statement

¶ 265 Neither the defense attorney nor appellate attorney challenged the trial court's assessment

that in the video statement Richardson "appears to be calm, cool, collected" and not agitated,

when it was just as likely that he was exhausted after being in custody from 3:30 p.m. February

9, to the time of the statement, about 9:08 a.m. on February 10, 2001, that he was a juvenile in

intimidating surroundings, and he was never asked at the trial to testify about his condition or

his physical or emotional state by the time of the video, which left the judge and the jury with

only their observation without explanation. It is also possible that by the time the video was

made the defendant felt that the statement he was giving was rehearsed. Further, no one

seriously challenged Assistant State's Attorney Heil when he said he did not take notes of his

questioning of the defendant before the video, yet Heil had a sequence of events lined up so

neatly that his leading questions just marched along so that all the defendant had to do was agree

with Heil on the details.

¶ 266 Neither the defense attorney nor the appellate attorney challenged the trial court's

statement that its decision was based in part on the fact that the mother said the police only got

upset when she said she wanted to go home, when in fact it was the mother's testimony that the

police got upset with her, called her names and yelled at her when she told her son that he did not

have to speak to them.

¶ 267 Neither the defense attorney nor the appellate counsel challenged the trial court's

statement that the mother indicated full cooperation not coercion, when in fact the mother

testified that she and the defendant were both scared of the police.

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¶ 268 The defense attorney did not object, and the appellate counsel did not raise as an issue the

failure to object, to the state's motion in limine regarding the lack of any evidence of any prior

child abuse to Diamond at the hands of the defendant, which effectively cut off defendant's

ability to provide evidence that his history with Diamond was free from any injury to the child.

¶ 269 Neither the defense attorney nor the appellate attorney challenged the trial court's

statement to the jury that while this is a murder case it "is not going to take much of your time,"

signaling indirectly to the jury that it was a cut and dried matter that should be an easy case,

arguably giving the jury the impression that the court thought the defendant was guilty.

¶ 270 Problem with Zehr Principles

¶ 271 Neither the defense attorney nor the appellate attorney raised the issue of missing Zehr

questioning of the jury panel.

¶ 272 At the time of the trial Rule 234 still required the defense attorney to ask for the Zehr

principles during the questioning of the potential jury members.

¶ 273 Defense counsel did not request the Zehr questions.

¶ 274 "We are of the opinion that essential to the qualification of jurors in a criminal case is that

they know that a defendant is presumed innocent, that he is not required to offer any evidence in

his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to

testify in his own behalf cannot be held against him." People v. Zehr,

(1984).

¶ 275 In Richardson's trial, on February 9, 2005, the trial court told all of the assembled

prospective jurors that the case is "important, however, it is not going to be taking up much of

your time."

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¶ 276 After the first group of 12 potential jurors was seated in the jury box, the trial court

advised them that the State must prove the defendant guilty beyond a reasonable doubt, and

asked if anyone had "any problems with this proposition." None did.

¶ 277 Defense counsel later questioned the same group of 12, asking if anyone had any

problems with the proposition that it cannot be held against the defendant if he does not testify

on his own behalf? None did.

¶ 278 That means that neither the entire group of potential jurors nor the specific 12 in the first

group in the jury box, 6 of whom were selected for the jury, were ever asked if they understood

that a defendant is presumed innocent and accepted that proposition.

¶ 279 The trial court then dismissed 6 potential jurors from the first group and sent the

remaining 6 jurors to the jury room and seated 14 more potential jurors in the jury box.

¶ 280 The trial court then asked those 14 if they understood that the defendant was presumed

innocent and that it was the State's burden to prove the defendant guilty beyond a reasonable

doubt. No one disagreed. However, by this time six of the final jurors were already in the jury

room and did not hear this question or have a chance to answer.

¶ 281 No one asked the second group of 14 if they understood that the defendant was not

required to offer evidence on his own behalf, or if they accepted that proposition.

¶ 282 This means that only 6 and 2 alternates of the final 12 on the jury were asked if they

knew that the defendant was presumed innocent and that the State had the burden of proving him

guilty beyond a reasonable doubt, and that none of the final 12 and 2 alternates was ever told by

anyone that the defense was not required to offer evidence on his behalf.

¶ 283 Immediately after the jury selection was complete the court went into trial mode and the

State made its opening statement.

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¶ 284 Following the trial, the trial court instructed the jury on the four Zehr principles.

However, the Zehr court itself held: "If a juror has a prejudice against any of these basic

guarantees, an instruction given at the end of the trial will have little curative effect. *** [T]he

subject matter of the questions should have been covered in the course of interrogation on voir

dire." Zehr,

.

¶ 285 Defendant's Own History of Discipline

¶ 286 The defense attorney did not ask the defendant or his mother what discipline was used on

him by his mother, leaving the jury with no idea that the acts he took against Diamond were what

he had grown up with. We need only look at today's headlines to see that child discipline and

child abuse have been mixed up in the minds and lives of many families, and that in this

defendant's family abusive discipline was in fact the norm.

¶ 287 The appellate attorney did not raise this failure by the defense attorney on appeal.

¶ 288 This issue has new life in recent headlines.

¶ 289 Famous football star, Vikings running back Adrian Peterson has been charged with child

abuse for "whooping" his four-year-old son with a tree branch. His defense is that he was

"whooped" as a child by his father and that he is "being punished for behavior that is widely

accepted in black culture." Chicago Sun Times columnist Mary Mitchell, in her column Tuesday,

September 26, 2014 reported the incident, and his comments and added: "Yesterday we called it

discipline. Today, they call it a crime. *** That's why whoopings are best left a cultural relic."

¶ 290 Indeed it is widely held that those who were beaten as children become beaters,

themselves. This does not make it right. But it does offer an explanation for what is otherwise

inexplicable: that Richardson in "disciplining" his child fell back on the same discipline he

himself suffered as a child, only without the filters of adult reflection and understanding or the

knowing and acceptance that he must break away from the wrong lessons of his own past.

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¶ 291 If Richardson was unable to understand the difference between willful disobedience by

his one-year-old, and those behaviors that make one-year-old children so endearing and

frustrating at the same time, then we must look first at his own mental condition and second at

his own discipline history to understand what was missing from this 16-year-old's ability to cope.

¶ 292 If Richardson did not know that his child was not actively disobeying him, if, in fact, he

really thought that telling a one-year-old to stop vomiting, to stand still, to not look at him would

actually work, then we must believe we are dealing with a significantly immature person whose

expectations and frustration would find answers only in his own very limited past. Did his own

mother ever lovingly correct his behavior? Did anyone ever explain to him that babies are not

just little persons, and cannot be expected to behave like grown-ups or even small children? Did

he have the mental capacity to understand that on his own?

¶ 293 Michael Eric Dyson, a professor of sociology at Georgetown University, said in his op-ed

in The New York Times, September 18, 2014: "[S]tudies say our children endure [suffering]

when they are beaten: feelings of sadness and worthlessness, difficulties sleeping, suicidal

thoughts, bouts of anxiety, outbursts of aggression, diminished concentration, intense dislike of

authority, frayed relations with peers, and negative high-risk behavior." Mr. Dyson of course

denounces the practice as "child abuse dressed up as acceptable punishment" as do all modern

sources and parents, but that still begs the question: what was Richardson taught? Do we really

believe that he had the benefit of modern psychology or sociology to inform his immature

reaction to his child's behavior? Or was his own behavior modeled after the only constant adult

in his life, his mother who beat him with cords, belts, sticks?

¶ 294 Child Trends, a research group, in studying families of all races reported that: "[u]se of

corporal punishment is linked to negative outcomes for children (e.g., delinquency, antisocial

behavior, psychological problems, and alcohol and drug abuse), and may be indicative of

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ineffective parenting. Research also finds that the number of problem behaviors observed in

adolescence is related to the amount of spanking a child receives. The greater the age of the

child, the stronger the relationship." Child Trends, Attitudes Toward Spanking, (2013), available

at http://www.childtrends.org/?indicators=attitudes-toward-spanking.

¶ 295 Did Richardson Intend to Murder the Child? Medical Examiner Testimony

¶ 296 The due process clause of the Fourteenth Amendment requires that a person may not be

convicted in state court "except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged." In re Winship,

(1970). See

also U.S. Const., amend. XIV; People v. Cunningham,

(2004).

¶ 297 In Richardson's case the State presented evidence, and Richardson admitted, that he

intended to inflict the injuries to Diamond, but Richardson contended he did not intend to murder

her. The State's only evidence of his intent was the medical examiner's testimony that the

injuries were intentionally inflicted, that is, they could not have occurred by accident. But

Richardson did not deny that. By framing the injuries as intentional the State used that same

intent as an element of murder, that is, to intend to murder the child. Richardson denied that.

His mental capacity, his childhood, his age and experience were never offered by defense

counsel to challenge the State's proof beyond a reasonable doubt of his intent to murder.

¶ 298 Appellate counsel did not raise this issue.

¶ 299 Neither the defense attorney nor the appellate attorney raised as an issue the testimony of

the medical examiner which may have been misleading to the jury about the intent of the

defendant. The medical examiner testified that the injuries to the child were inflicted

intentionally, the defense objected and the court overruled the objection. Then, the medical

examiner testified again that the injuries to the child were inflicted intentionally, the defense

objected and the objection was sustained, however, the damage was already done—the medical

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examiner used the specific word "intentionally" twice in but a few minutes, reinforcing the

perception that the defendant had intentionally murdered his child. The defendant never denied

he intentionally inflicted the injuries to his child, but he did deny that he intended to murder her.

Those two concepts were irretrievably meshed by the medical examiner's use of the word

"intentionally."

¶ 300 No Argument by Defense for Motion for Directed Finding

¶ 301 The defense attorney did not even bother to argue on her motion for a directed finding at

the close of the State's case, and the appellate attorney did not raise this as an issue of ineffective

assistance. Of course, since the defense attorney did not produce any evidence in the motion to

suppress hearing, the court had no evidence on which to even consider whether the State had

made its case: she demonstrated her own ineffectiveness when she was unable to find any reason

to give for a directed verdict, when at the very least if she had presented the evidence of his

mental ability and history of family life, she could have argued the State had not proved intent

beyond a reasonable doubt.

¶ 302 No Evidence Provided to Support Finding of Reckless Behavior

¶ 303 The defense attorney did not ask Richardson any questions about his own childhood, his

mother's discipline methods, or the situation in his family where he was really on his own, living

with his mother's boyfriend's sister so he could watch her three children, as a free baby sitter,

when he should have been able to look to his own mother for care.

¶ 304 The appellate counsel did not raise this as an issue of ineffective assistance.

¶ 305 The defense attorney put on no evidence of his character, personality, mental ability, or

upbringing to put his actions into some perspective, so when the court said "there is no evidence

*** of recklessness" the court was technically correct. And that statement by the court is

evidence itself that defense counsel was ineffective.

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¶ 306 The appellate counsel did not raise this as a matter of ineffective assistance.

¶ 307 No Argument by Defense for its Motion for a New Trial

¶ 308 The defense attorney made no argument in her motion for a new trial. Clearly, she

demonstrated her own ineffective assistance by failing to provide any evidence for the court to

consider, much less grant, a motion for a new trial.

¶ 309 Appellate counsel did not raise that as an issue of ineffective assistance.

¶ 310 Sentencing

¶ 311 The defense attorney did not challenge the court's remark that there was no evidence in

mitigation in the psychological evaluation, when in fact there was plenty of evidence of his mild

mental retardation, his illiteracy at the time of his arrest, and his low functioning IQ of 61,

described in the Behavioral Clinical Exam (BCX) and his family and social history, all of which

the court had an obligation to consider when sentencing a juvenile at the time of the offense.

The court is under an obligation to consider the potential for rehabilitation. The presentence

report plainly stated that the defendant had made significant gains in his reading while

incarcerated, and that with further educational opportunities he could be expected to improve

even more. The court simply did not take any of this into consideration.

¶ 312 The appellate counsel did not raise this as a matter of ineffective assistance of counsel, or

as a challenge to the sentence of 40 years.

¶ 313 The "seriousness of the crime committed is considered the most important factor in

fashioning an appropriate sentence." People v. Cox,

(2007). However,

from 2005 and 2012 the United States Supreme Court spoke with compelling clarity about new

scientific research that demonstrates that juvenile offenders are not just small adults and should

be treated with the understanding that they have an undeveloped sense of responsibility, are more

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easily influenced by outside pressure, and are not fully formed, meaning his or her personality

traits are still susceptible to change. Roper v. Simmons,

(2005). "[T]he

susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible

conduct is not as morally reprehensible as that of an adult.' " Roper,

(quoting

Thompson v. Oklahoma,

(1988)). "[T]he Supreme Court has acknowledged

that offense severity does not automatically turn a child into an adult and that immaturity is

relevant in assessing culpability." People v. Willis,

(citing

Miller,

,

, J.D.B. v. North Carolina,

,

(2011), Graham,

, and Roper,

. The other factors to be considered by

the court in sentencing are "the defendant's personal history, including his age, demeanor, habits,

mentality, credibility, criminal history, general moral character, social environment and

education." People v. Maldonado,

(1992).

¶ 314 Our courts have consistently held that "[i]f mitigating evidence is presented to the trial

court, we are to presume, absent some indication to the contrary, other than the sentence itself,

that the trial court considered it." (Emphasis added.) Willis,

(citing People v. Benford,

(2004)).

¶ 315 The problem with Richardson's case is that because defense counsel did not present any

mitigating evidence of Richardson's mental ability or family/social history, only the PSI and the

BCX were available to the judge in mitigation. While these two reports are compelling, the

missing evidence of his mental ability and family/social history before the trial, at the motion to

suppress, and during the trial itself would have provided a context for the actions of Richardson,

which was important for consideration in jury deliberations and in sentencing. The jury never

saw those reports. The court clearly read the reports before sentencing. However, defense

counsel's failure to provide the court and the jury with Richardson's immaturity and his own

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history left him unable to persuade the jury in its verdict or the judge in sentencing him to 40

years.

¶ 316 Richardson Did Not Know

¶ 317 There are lots of things that Richardson did not know when he was 16. He did not know

that you cannot feed a one-year-old an adult-size bowl of cereal. He did not know that pushing

on her stomach would inevitably lead to her vomiting. He did not know that one-year-olds

cannot be expected to stop vomiting because someone says to – in fact, no adult could do that

either. He did not know that it is impossible to expect a one-year-old to stand still for a few

seconds let alone several minutes. He did not know that leaving a one year old in a bathtub even

for a minute is an invitation to disaster. He did not know that a karate chop to the child's ribs

could cause internal injuries that could kill her. He did not know that hitting a small child in any

way could cause such severe internal injuries that she could die. He did not know that shaking to

wake her up could kill her. Or that a neighbor shaking the same child could kill her. The court

and the system expected the mentally retarded 16-year-old with a functioning IQ of 61 to know a

cumulation of things that many adults only vaguely realize, and avoid behavior that many

parents, even today, engage in as forms of discipline.

¶ 318 Conclusion

¶ 319 Even Richardson knows he must be held accountable for the terrible things he did to

Diamond. No one could hear the facts in this case and not be moved to seek justice for that

child. But we must also seek justice for another child, the boy child who was her father but was

unable to be her parent. Justice for this defendant would be to remand his pro se postconviction

petition so that it can move to the second stage with an attorney who can amend the petition and

properly prepare his case.

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