No. 1-13-3726

SECOND DIVISION June 7, 2016 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Respondent-Appellee, ) ) v. ) No. 93 CR 1817303 ) JOSE MONTANEZ, ) ) Honorable Maura Slattery Boyle Petitioner-Appellant. ) Judge Presiding.

JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Neville and Hyman concurred in the judgment and opinion.

OPINION

¶1 This appeal is taken from a directed finding that was entered in a postconviction

proceeding stemming from a murder case 22 years ago. The principal witness from the trial has

since submitted an affidavit that the trial testimony he gave was “false in all respects” and it was

coerced by the detectives investigating the murder. A number of other witnesses have provided

testimony that they were coerced to falsely implicate people in crimes by the same detectives. At No. 1-13-3726

their joint evidentiary hearing, Montanez 1 and his codefendant Serrano presented profoundly

alarming acts of misconduct in the underlying investigation and prosecution, all of which warrant

closer scrutiny by appropriate authorities. Because we find that, when the evidence is viewed in the

light most favorable to petitioner, Montanez has met his burden to go forward on an actual

innocence claim, we reverse and remand. Any other result would work a palpable injustice.

¶2 BACKGROUND

¶3 On February 5, 1993, Rodrigo Vargas was found shot to death. Vargas was in his own

driveway sitting in his van with the motor running. Neighbors had heard shots fired about an hour

and a half earlier. Vargas’s body was examined by the Cook County medical examiner’s office,

which determined that his death was a homicide resulting from multiple gunshot wounds. When he

died, the victim still had his wallet with $190. One neighbor, Gary Shoop, indicated that he was

awakened by the sound of several gunshots and looked out his window to see a car traveling away

quickly. He identified the car as a brown sedan, a General Motors’ make. The timeline of the

investigation and what occurred during the investigatory period is hotly disputed by the parties.

¶4 Wilda Vargas, the victim’s wife, originally told the investigators that she had no idea who

would want to kill her husband. At trial, Wilda testified that the night before the murder, she was

out running errands with her husband and children. They stopped at a bank and then proceeded to

a gas station. Wilda said that while they were parked at a gas station and her husband was inside

paying, a cream-colored four-door car with a brown top pulled in behind them, blocking them in.

1 The defendants in this case are Jose Montanez, Armando Serrano, and Jorge Pacheco. Jorge Pacheco was acquitted. Serrano was convicted along with Montanez and has also filed a postconviction petition. The trial court held a joint evidentiary hearing for Montanez and Serrano, but each filed a separate appeal. The opinion adjudicating Serrano’s appeal, People v. Serrano,

, overlaps significantly with this opinion and is being filed concurrently.

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She testified at one point that an occupant of the vehicle entered the gas station while her husband

was inside. At another point, she testified that petitioner entered the gas station after her husband

had already paid and exited the store. Because they had just left the bank, Rodrigo had cash, about

$350. When Rodrigo came back to his car and it was still blocked in, he was agitated and honked

the horn and cursed before the other car drove off. The subject car followed them for a period after

they left the station.

¶5 Wilda testified that she had a good opportunity to view petitioner from a few feet away,

and she identified petitioner in open court as the person who went inside the gas station. She

originally identified a codefendant, Armando Serrano, as the driver but then switched her

identification to petitioner. Wilda at one point testified that four days or so after the murder,

February 8 or 9, she was accompanied by detectives Earnest Halvorsen and Reynaldo Guevara as

they went back to the subject gas station. She later testified that this took place four months after

the murder. Wilda and the detectives drove around the area to look for the vehicle she had seen the

night before the murder, and she testified that she was able to identify the car parked at a residence

in the neighborhood. The car she identified belonged to petitioner.

¶6 Another individual, Francisco Vicente, also testified against the defendants. Vicente is an

admitted heroin addict and had four felony cases pending against him at the time. He was also

concurrently a State’s witness in two other murder cases being investigated by Detective Guevara

in which the perpetrators supposedly confessed their crimes to him. While he was incarcerated on

other charges, he reportedly told detectives Halvorsen and Guevara that the three defendants in this

case had confessed to him. His testimonial narrative was that around 8 or 9 the same morning that

Rodrigo Vargas was murdered, he came across defendants, whom he knew. Vicente testified that

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he saw that defendants had a gun, and their conversation revealed that defendants were upset

because they had unsuccessfully attempted to rob someone and in the fallout they had to kill him.

Vicente testified that petitioner then said that defendants had seen a Mexican guy at a gas station

the night before, and he pulled out a big wad of money so they decided to rob him. They waited

until the next day to attempt the robbery since his wife and children were in the car that night.

¶7 Vicente ultimately received the mandatory minimum sentence of 9 years for his pending

felony cases despite facing up to 100 years in prison. While in prison, Vicente received perks like

cigarettes, a radio, home-cooked meals, and other things not generally available to inmates.

¶8 Detective Halvorsen also testified in the State’s case. Halvorsen stated that he was

questioning Vicente as a witness in another investigation when Vicente revealed that he had

information regarding the murder of Rodrigo Vargas. It was June 2, 1993, about four months after

the murder. It was just the two of them in the room. Halvorsen had heard unsubstantiated rumors

on the street that someone by the name of “Pistol Pete” was involved in the Vargas murder.

Vicente claimed that the rumored information was correct and that the “Pistol Pete” involved was

petitioner and that petitioner’s co-offenders in the murder were “Mando” and “Jordan.” Halvorsen

claimed that through his database he was able to identify Mando as Armando Serrano and Jordan

as Jorge Pacheco, both of whom would later become petitioner’s codefendants. Halvorsen claimed

that later that day he told Guevara about the information gleaned from Vicente. Halvorsen’s

testimony was that it was at this point that the detectives visited Wilda Vargas, drove with her to

the gas station, and then drove her around the area, where she identified petitioner’s car as the one

that had been behind them at the gas station the night before the murder.

¶9 Halvorsen testified that he also received a call around this time from Sergeant Minghey.

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Minghey purportedly told Halvorsen that an individual being held by the police, Timothy Rankins,

had claimed to be an eyewitness to Rodrigo Vargas’s murder. Halvorsen testified that he and

Guevara interviewed Rankins and, to verify his story, they drove in the direction of Vargas’s home

with Rankins accompanying them to test if Rankins could have really been an eyewitness. When

they approached, Halvorsen testified, Rankins pointed to Vargas’s home as the place where he had

witnessed the murder. Rankins testified before a grand jury about what he apparently witnessed,

but did not testify at trial.

¶ 10 No eyewitness testimony was presented at trial nor was there any physical evidence

admitted. When making his ruling, the trial judge remarked that “were it not for the testimony of

Vicente, there wouldn’t have been much evidence here. His testimony is crucial.” The trial judge

found the three defendants guilty of murder but later reversed his own decision and acquitted

Pacheco.

¶ 11 On May 26, 2004, Vicente completed an affidavit in which he recanted his trial testimony.

He averred that his testimony at trial was “false in all respects.” Going point by point, Vicente

attested that the testimony he gave was supplied to him entirely by Detective Guevara and that he

agreed to give the testimony as a result of threats, physical coercion, and promises of leniency for

his own crimes. Vicente averred that he was also given money and received special treatment in

prison in return for supplying false information in this case and in others at the behest of Guevara.

¶ 12 Petitioner filed a postconviction petition a few months later and his codefendant Serrano

filed one about a year after the recantation. Petitioner’s postconviction petition had 15 exhibits

attached. The exhibits consisted of: Vicente’s recantation affidavit, a statement from Timothy

Rankins recanting his supposed eyewitness testimony offered during the investigation and to the

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grand jury, and affidavits or other forms of sworn statements from at least 10 different witnesses

swearing that Guevara had abused them, coerced them into giving false testimony, or committed

some other kind of investigatory misconduct. A Cook County judge denied the State’s motion to

dismiss the postconviction petitions and advanced them to the third stage of postconviction

proceedings for an evidentiary hearing. The cases were transferred to a new judge on October 1,

2009, but the evidentiary hearing did not take place until May 15, 2013.

¶ 13 At the evidentiary hearing, Detective Guevara invoked his fifth amendment right, refusing

to answer on grounds that he might incriminate himself. His attorney spoke on his behalf and

indicated that she had advised him not to testify because, among other things, he had been sued for

“similar allegations of misconduct” in the past. The trial she referenced in particular was one in

which a $21 million verdict was entered for the complaining plaintiff for police misconduct. When

questioned in detail about the allegations of misconduct in this investigation, Guevara refused to

answer each question, invoking his fifth amendment protections. Similarly, Vicente invoked the

fifth amendment and refused to give testimony to back up his sworn recantation. There were

several indications that he feared prosecution for having previously perjured himself at

defendants’ trial. Vicente did not take the opportunity to repudiate the content of the affidavit.

Vicente told the court that he feared for his safety, and he was escorted from the building.

¶ 14 Petitioner offered into evidence the transcribed statement of Timothy Rankins. Rankins

described how Guevara used violence in an attempt to get him to incriminate the defendants in this

case. Rankins testified about his reluctance to give the false testimony against them and the beating

he suffered at the hands of Guevara and others. He swore that Guevara and Halvorsen gave him

photographs of the three defendants in this case and a written statement and told him to study the

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material and, after some more beating, told him to sign the statement. Rankins claims that the

statement he signed was false in its entirety, as was his testimony before the grand jury. Rankins

also corroborated claims made by Vicente averring that the two of them were housed in the same

protected prison block, receiving cigarettes, money, and the option of privately hosting female

guests. Rankins swore that he and Vicente worked together to learn the false statements. Rankins

stated that he eventually refused to provide false testimony at trial, though the detectives tried

multiple times to persuade him to testify.

¶ 15 Valentin Gomez testified at the evidentiary hearing that he and Vicente were co-offenders

in a case in 1995 or 1996, a year or so after Vicente testified against defendants. While they were

incarcerated, Gomez was concerned that Vicente was in protective custody because he had flipped

in the case they had together. Gomez testified that Vicente assured him that, no, he had not flipped

in their case, but had falsely implicated these defendants in order to get a deal in his own pending

cases. According to Gomez’s testimony, three or four years later, he and Vicente came into contact

again and they again discussed that Vicente had lied in this case. Gomez testified that Vicente

expressed his desire to come clean about giving false testimony against defendants. Gomez,

however, never reported the content of his conversations with Vicente to anyone prior to him being

contacted in connection with these postconviction proceedings.

¶ 16 Petitioner called witnesses and introduced other sworn testimony at the evidentiary hearing

in an attempt to establish Guevara’s pattern of police misconduct. William Dorsch, a retired

Chicago police department detective, testified about a case he worked on with Guevara a couple of

years before this case came about. In that case, the detectives were conducting a photographic

lineup with two supposed eyewitnesses. Dorsch testified that when one of the witnesses seemed

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unable to make an identification, Guevara pointed to one of the pictures and said “that’s him.” The

witness then agreed with Guevara’s suggestion and went on to identify the person in a live lineup.

Dorsch conducted the lineup with the second witness by himself, and the witness was unable to

make an identification. The witnesses later admitted that their statements were false and that they

were being paid by a third party. The charges against the accused were dropped. Dorsch, however,

did not remember many of the particulars of the case such as the names of those involved. Dorsch

also never reported the incident to his superiors and had since begun to work as an investigator

with the Innocence Project and received compensation for his work.

¶ 17 David Velasquez testified that Guevara drove him to rival gang territory and announced his

presence, prompting Velasquez to promise to cooperate. Velasquez testified that when they got

back to the station, the detectives beat him until he signed a statement falsely claiming that he was

an eyewitness to a murder. However, Velasquez also testified that he had originally implicated a

member of his own gang, and, had he not recanted, he surely would have been killed. Adolfo Frias

Munoz’s affidavit was accepted into evidence. In it, Munoz swore that he and his nephew were

violently interrogated by Guevara. Munoz was told his wife would also be beaten and arrested, so

he confessed. Gabriel Solache testified in a different proceeding that Guevara punched him until

he confessed to a murder he did not commit, causing him to suffer permanent hearing loss as a

result. In that same case, Arturo Reyes testified that Guevara slapped him and had him sign a

statement in English leading him to believe it would free him from custody. But, Reyes did not

speak English and the statement turned out to be a confession.

¶ 18 Continuing, Wilfredo Rosario’s testimony from prior proceedings was introduced in which

Rosario testified that Guevara threatened to lock him up with rival gang members unless he

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testified in multiple murder cases. Rosario averred that the testimony that he used for his witness

narratives was provided by Guevara. Graciela and Anna Flores testified in a different proceeding

that Guevara came to their house to execute a search warrant and violently attacked Graciela. Julio

Sanchez and Louis Figueroa supplied affidavits swearing that they were pressured by Guevara to

identify an individual in a lineup whom they knew was not the perpetrator. Those affiants stated

that Guevara and Halvorsen showed them photographs of the person they were supposed to pick

out of the lineup or told them under which number in the lineup the person the detectives wanted

selected would be located. Virgilo Muniz’s affidavit was offered. He averred that he falsely

accused another man of murder because Guevara told him if he did not, he would be charged

instead.

¶ 19 The trial court barred the testimony of 12 other individuals who would have averred that

they were abused or otherwise witnessed misconduct by Guevara. The trial court’s reasoning for

not allowing the evidence was that the testimony was too temporally remote or not similar enough

to the allegations in this case.

¶ 20 The trial court also barred testimony from Wilda Vargas, the victim’s wife and an

important witness at trial. As an offer of proof, petitioner stated that if Wilda had been allowed to

testify, she would have testified that she was unable to identify a vehicle when she drove with the

detectives, but that Guevara took her to the location of the vehicle and told her that it was the car

from the gas station. It was him, not her, who identified the vehicle. Wilda would have also

testified that Guevara falsely told her that some bullet holes in the subject car matched the ballistic

testing done at the scene of her husband’s murder when they, in fact, did not. The court found that

the testimony that would have been offered by Wilda, as described by defense counsel, did not

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warrant her testifying at the hearing.

¶ 21 At the close of the petitioner’s case, the State moved for a directed finding. The trial court

took the matter under advisement. About three months later, the court issued a 25-page written

ruling granting the State’s motion for a directed finding. In doing so, the trial court concluded that

“[t]he evidence presented by petitioners in the instant case, taken in [the] light most favorable to

the petitioners entirely fails to support their allegation that Detective Guevara forced Francisco

Vicente to falsely implicate petitioners in first degree murder and attempted armed robbery.” This

appeal followed.

¶ 22 ANALYSIS

¶ 23 To obtain postconviction relief on the basis of a claim of actual innocence, a petitioner

must present new, material, noncumulative evidence of such a conclusive character as would

probably change the result on retrial. People v. Coleman,

. When we consider

whether the evidence is “conclusive” we look at whether the new evidence places the evidence

presented at trial in a different light and undercuts the court’s confidence in the factual correctness

of the guilty verdict. Id. ¶ 97. The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

2014)) gives the postconviction court wide latitude to receive proof by affidavits, depositions, oral

testimony, or other evidence. People v. Ruiz,

(1997).

¶ 24 Where, as here, the trial court grants a directed finding after petitioner’s case at a

third-stage evidentiary hearing, we review its decision de novo. People v. Andrews,

(2010) (when no fact finding or credibility determinations are involved in a decision

regarding a third-stage postconviction petition, we review de novo); People v. Connolly,

(2001) (a ruling on a motion for a directed finding is a question of law subject to

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de novo review). The parties agree that de novo review is appropriate. When presented with a

motion for a directed finding, the trial court is obliged to construe the evidence in the light most

favorable to the nonmovant and may only grant the motion when the evidence so favors the

nonmovant that a contrary ruling could never stand. People v. Hancock,

. Thus, the question here is: has the petitioner made a prima facie showing that the

new evidence presented, taken in a light most favorable to him, would probably change the result if

the case was retried? Id.; Coleman,

.

¶ 25 To start, petitioner meets the situational requirement of presenting new, material,

noncumulative evidence. The State 2 did not move for a directed finding on the absence of any of

those characteristics, and the trial court’s ruling was not based on a lack of presenting the proper

type of evidence, but instead upon a supposed failure to meet the evidentiary burden.

¶ 26 At trial, the only direct evidence of petitioner’s guilt was Vicente’s testimony. Vicente

supplied what amounted to a confession from defendants including details of the crime that

swayed the fact finder. The trial judge commented, “were it not for the testimony of Vicente, there

wouldn’t have been much evidence here. His testimony is crucial.” That “crucial” testimony is

now entirely repudiated in a sworn statement by the person who gave it. The witness now claims

the testimony was “false in all respects.” Detail by detail Vicente averred that the testimony he

gave at trial was fed to him by Guevara, was coerced, and was not true.

¶ 27 There is not a large body of published case law in Illinois dealing with recantation

evidence. As in nearly every jurisdiction, Illinois courts have stated that recantations of trial

2 We note that the State’s brief is riddled with so many careless errors that the brief appears to have never even been proofread. Many of the points the State tries to make to support its arguments are also truly baffling. The failure to submit a presentable brief in a case of this magnitude is disconcerting.

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testimony are to be viewed with suspicion. People v. Lawson,

(1978). But

a survey of persuasive cases throughout the country reveals that recantation statements should not

simply be dismissed without further analysis. See, e.g., Lopez v. Miller,

(E.D.N.Y. 2013) (analyzing at length the considerations federal courts have given to

recantation testimony); United States v. Ramsey,

(10th Cir. 1984) (where the

witness himself files an affidavit averring that his trial testimony was false, the trial court must at

least decide if the recantation is to be believed). That notion is especially valid in a case like this

where the trial court is obligated to assess the evidence in a light most favorable to petitioner.

¶ 28 Even at the time of trial there were reasons to be concerned about the veracity of Vicente’s

testimony. He is an admitted heroin addict. He had a lengthy criminal history. He received a

sentence of 9 years for four felony cases when he was facing 100 years in prison—a significant

incentive to give testimony favorable to the government. Now, looking at all of those concerns

with the additional sworn statement from the witness that the testimony was false, that previously

crucial testimony is undeniably called into question. The recantation contains significant

additional corroboration. Among other items discussed in more detail below, Timothy Rankins

testified that he was coerced by Guevara to give false testimony against the defendants in this case

and that he and Vicente rehearsed the testimony together and received special treatment in prison.

Valentin Gomez’s sworn statement that Vicente admitted years before the recantation that he had

falsely testified in this case aids to rebut any indication of a recent fabrication. The totality of the

corroboration evidence not only establishes the admissibility of the recantation, it demands that the

evidence be weighed to assess its veracity.

¶ 29 In directing a finding for the State, addressing Vicente’s recantation, the trial court found

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that “Petitioners have failed to present any evidence that Detective Guevara engaged in

misconduct in their cases, and have been unable to present any evidence that Francisco Vicente

provided false testimony at the behest of Detective Guevara.” The trial court ignored Vicente’s

affidavit and Rankin’s transcribed statement, both of which provide direct evidence of misconduct

in this case and of Vicente providing false evidence at the behest of Guevara. Petitioner presented

sworn evidence from the very witness who claims to have been under the influence of Guevara’s

misconduct in this very case. In addition, Timothy Rankins supplied a statement that Guevara tried

to coerce him into giving false testimony in this case. He swore that the detectives gave him

photographs of the three defendants and a written statement to sign. Rankins testified that the

statement he signed was false in its entirety as was his testimony before the grand jury. Rankins

also corroborated claims made by Vicente, averring that the two of them were housed in the same

protected prison block and that they received cigarettes, money, and other benefits in return for

implicating these defendants. When Rankins eventually decided he would not falsely implicate

defendants at trial, the detectives took away his special privileges and tried multiple more times to

solicit his false testimony.

¶ 30 The trial court found it especially significant that Vicente was cross-examined for well

over 100 pages of the transcript, explaining that because petitioner failed to “show the very basis

for [his] claim,” his claim is “meritless.” Then, finishing its assessment of the worthlessness of

Vicente’s recantation, the trial court stated that “the evidence in the present case so

overwhelmingly favors the State that no contrary verdict based on that evidence could ever stand.”

We profoundly disagree. Without Vicente’s trial testimony, even the judge that presided over the

trial would disagree with that characterization. That judge stated that without it, “there wouldn’t

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have been much evidence here,” so it is completely unclear how the other evidence in the case

could now somehow be characterized as “overwhelming.” When Vicente’s recantation affidavit is

examined under the proper directed finding standard, it is impossible to say that it does not even

bolster petitioner’s claim.

¶ 31 The trial court also failed to draw an adverse inference from Detective Guevara’s

invocation of the fifth amendment. Proceedings under the Post-Conviction Hearing Act are civil in

nature. People v. Johnson,

(2000). The privilege against self-incrimination

may be invoked in any proceeding, civil or criminal, in which the witness reasonably believes that

the information sought could be used in a subsequent criminal proceeding against him. People v.

Houar,

(2006). However, when the privilege is invoked in a civil

proceeding, the trial court may sometimes draw an adverse inference that, had the questions been

answered truthfully, the answers would have been damaging to the person invoking the privilege.

See

. The issue is not addressed in the trial court’s order.

¶ 32 While we need not expressly decide whether an adverse inference is ultimately warranted

in this case, it is something the trial court should have at least considered at the directed finding

stage. People v. Whirl,

. Guevara refused to answer probative,

detailed questions about his misconduct in this very case.

¶ 33 The trial court then moved to the evidence offered by petitioner in his attempt to establish a

pattern of misconduct by Guevara, going one by one through the statements offered by the other

individuals. The trial court separately held that each of the individual’s allegations against

Guevara “fails to support petitioners’ claim,” typically because the evidence was either too remote

in time or did not describe misconduct similar enough to that alleged in this case. Thus, the trial

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court held, none of the evidence supported petitioner’s claim.

¶ 34 Petitioner offered or was prepared to offer evidence of Guevara’s misconduct and witness

coercion from more than 20 people, all from within a 10-year period. The trial court gave no

compelling reason to entirely write off that evidence as either not admissible or not persuasive

because of when the misconduct was said to have occurred. Although the specific allegations are

not, nor would they be expected to be, 100% the same in every claim of misconduct, all of the

allegations are that Guevara used coercion to get witnesses to make false statements. Many of the

purported occurrences are actually quite similar. Almost all of the purported victims are Hispanic

and many did not speak fluent English, giving Guevara the opportunity to coerce them more easily.

The types of deception, the physical abuse described, and the other methods employed are not so

disparate to convincingly demonstrate some sort of widespread fabrication of accusations against

Guevara. There was even evidence from a Chicago police detective that worked alongside

Guevara who testified about Guevara’s willingness to procure false identifications in a manner

corroborative of the other allegations made by the proposed witnesses here. As we stated in

another case concerning Guevara’s misconduct, “In our view, any allegation that Guevara coerced

a person to provide evidence is relevant to whether defendants in the case at bar were similarly

coerced.” People v. Reyes,

(2006). For the trial court to find all of that

evidence totally unworthy of any credit when it was required to view the evidence in a light most

favorable to petitioner is truly puzzling.

¶ 35 Certainly the proffered pattern of misconduct at least somewhat supports and corroborates

petitioner’s claim of misconduct as it relates to Vicente’s sworn statement. The temporal

connection to the evidence that Guevara coerced Vicente in this case and the similarity of the

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various allegations may go to the weight or credibility of the evidence, but it is still supporting

evidence. In its order, the trial court states that “[i]n ruling on directed verdict, ‘a court does not

weigh the evidence, nor is it concerned with the credibility of witnesses.’ ” However, the trial court

did just that. The purpose of all of this evidence about Guevara’s purported misconduct was to

support the sworn recantation by Vicente. As we observed in another case dealing with Guevara’s

history “it is at least arguable that, if the [fact finder] had known about Detective Guevara’s history

of improperly influencing witnesses, they might have [weighed testimony differently].” People v.

Almodovar,

. If the evidence offered here does not meet the

postconviction evidentiary threshold at the directed finding stage, then it is hard to imagine the

threshold ever being met.

¶ 36 The State argues that the trial court’s ruling should stand because petitioner did not meet

his burden of going forward on a claim of actual innocence. In support of that argument, the State

contends that there was evidence at trial that rebuts Vicente’s false recantation and the false

allegations leveled against Guevara. In particular, the State points to the trial testimony of

Detective Halvorsen in which Halvorsen states that he was alone with Vicente when Vicente first

implicated the defendants here. According to Halvorsen’s testimony, it was only after Vicente

gave evidence against defendants to him that Guevara even got involved. Therefore, the State

claims, Vicente’s affidavit is totally refuted. We do not find this argument persuasive.

¶ 37 Even though this is the State’s principal argument on appeal, the trial court’s lengthy

written order does not in any way rely on Halvorsen’s testimony. The trial court had no reason to

disbelieve Vicente’s recantation in favor of Halvorsen’s trial testimony at the directed finding

stage under the particular circumstances. In many of the cases where an individual has accused

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Guevara of misconduct, Halvorsen is accused of participating or at least being involved in the case.

He is not some disinterested witness, especially after the myriad allegations of misconduct have

been brought to light. Halvorsen’s trial testimony about his one meeting with Vicente does not

discredit all the postconviction evidence to the contrary when the postconviction evidence is

viewed in the light most favorable to petitioner. If all of the evidence submitted in connection with

this postconviction proceeding is proved to be true, including the accusations against Guevara,

Halvorsen’s trial testimony may well be consigned to oblivion.

¶ 38 The State also falls into the same hole that the trial court did when it argues about the

veracity of the affidavit. The State suggests that Vicente may have been compensated or something

of the sort in exchange for his recantation by the Innocence Project or the Northwestern University

students that procured the affidavit. But that is a matter for the State’s case. It is an inappropriate

argument where a directed finding was entered against petitioner. The State is free to explore the

veracity of the affidavit, but that has no bearing on whether petitioner met his burden to defeat a

motion for a directed finding. The State makes other claims such as that Rankins’ statement

“should be given little weight.” But the trial court was not in any position to determine the amount

of weight to give evidence at this stage in the proceedings. The State indicates that, had it not been

given a directed finding, it would have “called many live witnesses to refute both the Vicente

allegations and the collateral allegations in a hearing.” Now it will have that opportunity.

¶ 39 The trial evidence that is not directly called into question by the postconviction evidence is

extremely flimsy. The motive evidence is questionable because Wilda Vargas’s trial testimony

about whether petitioner had an opportunity to see the victim and his money while in the gas

station was less than solid. The State’s theory was that petitioner was in the store while her

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husband was paying. But Wilda also at one point testified that her husband had already paid and

exited the store before petitioner entered, which would vitiate the narrative that petitioner saw the

money and decided to commit a robbery. Also, her husband was left with nearly $200 in his pocket

when he was killed.

¶ 40 Wilda’s testimony about observing petitioner’s car when she was with the detectives is

now all but refuted by her proferred testimony that the information was fed to her by Guevara. He

supposedly told her which car to identify and then misled her about nonexistent ballistic evidence.

The timing of when Wilda drove around with the detectives is also open to question. She originally

testified that she drove around with the detectives and identified petitioner’s car four days after her

husband was killed, while the detectives’ narrative was that she drove around with them several

months after the murder. Wilda’s identification testimony is also dubious. At the police station and

in court, she made misidentifications of the defendants before settling on whom she saw and where

she saw them. At trial, the judge commented that he found the majority of Wilda’s identification

testimony to be unreliable.

¶ 41 There were no eyewitnesses to the crime, and no physical evidence tied the defendants to

the crime. No weapon was ever recovered nor were any proceeds of the supposedly intended

robbery. Vicente was Guevara’s key witness in two additional murder cases at the same time this

case was pending. In all three cases, the perpetrators supposedly confessed their murders to this

same heroin addict. At the risk of belaboring the point, in making his ruling at trial, the judge

acknowledged that “were it not for the testimony of Vicente, there wouldn’t have been much

evidence here.” Now, with everything presented at the postconviction evidentiary hearing,

construed in the light most favorable to petitioner and with all inferences being drawn in his favor,

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that lack of other evidence is distinctly concerning.

¶ 42 The corroboration of the new evidence and its consistency on key details, properly

construed, is compelling. We have before us a recantation from the principal trial witness saying

he was coerced by detectives, a partial recantation from the secondary witness (the victim’s wife)

saying she was misled by investigators, sworn statements from at least 20 individuals claiming that

the investigators coerced them in a similar manner, and then the detective under suspicion coming

to the hearing and invoking the fifth amendment in response to all of the pointed questions. At this

stage in the proceedings, petitioner was required to make out merely a prima facie case that would

cause the court to view the “evidence presented at trial in a different light and undercut[ ] the

court’s confidence in the factual correctness of the guilty verdict.” People v. Coleman,

. That has clearly occurred here. When all of the postconviction evidence is viewed in

a light most favorable to petitioner, the trial court was wrong to say that no contrary ruling could

ever stand.

¶ 43 We also vacate the trial court’s evidentiary rulings based on the remoteness of Guevara’s

purported misconduct in other cases. That evidence should be allowed, consistent with our

explanation in Reyes that “any allegation that Guevara coerced a person to provide evidence is

relevant to whether defendants in the case at bar were similarly coerced.” Reyes,

. Of course, there are some limitations attendant to the preceding statement, but, based on the

offers of proof made by petitioner, all of the proffered testimony about Guevara’s purported

misconduct should have been admitted. Furthermore, we vacate the trial court’s ruling concerning

the proffered postconviction testimony of Wilda Vargas. It is immensely relevant, and she should

be able to testify about being manipulated by Guevara in this case. That testimony might very well

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be the most important evidence in the case.

¶ 44 The final issue in this appeal is that petitioner suggests we should remove the

postconviction judge from the case and assign the case to a different judge on remand. Petitioner

argues that since the postconviction judge has already ruled that no contrary verdict could ever

stand and since the judge has expressed a disregard for the evidence presented, it would be

essentially worthless to send the case back to the same judge. We agree. Illinois Supreme Court

Rule 366(a)(5) (eff. Feb. 1, 1994) gives a reviewing court, in its discretion, the power to reassign a

matter to a new judge on remand. People v. Tally,

. Petitioner

offered up an abundance of evidence to support his claim of actual innocence. The trial court

turned a blind eye to much of the evidence and also refused to admit probative, admissible

evidence that, when evaluated under the proper standard, is damning. Even where the court gave

lip service to the standard it was supposed to apply, the court clearly did not adhere to that

standard. The postconviction court gave the impression that it was flatly unwilling to consider the

evidence offered by petitioner. See Reyes,

. Petitioner would be prejudiced

were we not to assign the case to a new judge on remand. Therefore, in the exercise of our

discretion under the supreme court rules, we find that the interests of justice would be best and

most efficiently served by the case being assigned to a different judge on remand.

¶ 45 CONCLUSION

¶ 46 Accordingly, the trial court’s judgment is reversed, and its directed finding in favor of the

State is vacated. The case is remanded to the presiding judge of the criminal division of the circuit

court with instructions that the case be assigned to a different judge to adjudicate the reinstated

third-stage postconviction proceedings.

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¶ 47 Reversed and remanded.

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