SIXTH DIVISION JUNE 5, 2020

No. 1-18-0322

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 10553 (01) ) DION BANKS, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE CUNNINGHAM delivered the judgment of the court. Justices Connors and Harris concurred in the judgment.

ORDER

¶1 Held: Dismissal of the defendant’s postconviction petition at the first stage reversed where petition stated the gist of a Brady violation.

¶2 Defendant-appellant Dion Smith, convicted of first-degree murder and aggravated

discharge of a firearm, appeals the first stage dismissal of his postconviction petition. On appeal,

the defendant argues that he stated the gist of a claim that the Chicago police department’s failure

to turn over its 340-page street file concerning him prior to trial amounted to a Brady violation.

For the reasons that follow, we reverse the judgment of the circuit court of Cook County and 1-18-0322

remand the matter for second stage proceedings and the appointment of counsel to represent the

defendant.

¶3 BACKGROUND

¶4 On March 24, 2001, the defendant shot and killed Rose Newburn outside of Ford City Mall

in front of her four- and five-year-old sons during the course of a carjacking. The defendant left

the scene in Newburn’s car with her children in the backseat. After driving for a short time, the

defendant stopped the car and told the boys to jump out of the window, but then allowed them to

leave through the door. The boys hid behind a stop sign as the defendant drove away, and then

returned to the mall where their mother was.

¶5 In addition to Newburn’s five-year-old son, another witness saw the shooting and identified

the defendant as the shooter. Other witnesses also saw the defendant driving Newburn’s car that

day. During an interview with an assistant state’s attorney two days after the shooting, the

defendant confessed to the carjacking and murder.

¶6 In 2006, a jury convicted the defendant of first-degree murder and aggravated discharge of

a firearm and also found him eligible for the death penalty. Following a hearing at which evidence

in aggravation and mitigation was presented, the jury found no mitigating factors that would

preclude the imposition of the death penalty. The defendant appealed his conviction and sentence

directly to the supreme court, which affirmed both in February 2010. His sentence was commuted

to life in prison in 2011.

¶7 On September 7, 2017, the defendant filed a postconviction petition in the circuit court of

Cook County. His petition alleged that he was contacted by attorney Candace Gorman, who

uncovered a street file bearing the defendant’s name during the course of her search for documents

in her own client’s case. According to the defendant, that street file was never disclosed to his

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trial counsel. Attached to the defendant’s petition was the letter attorney Gorman sent to the

defendant informing him of the existence of the street file as well as Gorman’s own affidavit.

Gorman averred that during the course of her representation of Nathson Fields in an unrelated civil

rights claim, she discovered a homicide investigative file on Fields which contained “substantial

exculpatory material” that had never been tendered to Fields or his prior counsel. She recovered

the file in a cabinet in the basement of the police station at 51st Street and Wentworth Avenue in

Chicago. That basement had over 20 other cabinets all containing homicide investigation files.

Among the 466 files she recovered from that location was the file of the defendant in the instant

case, containing 320 pages of “documents and photos.” Gorman wrote to the defendant and

informed him of the existence of the street file. She could not share the file directly with the

defendant because of a court order, so she asked the defendant for the contact information for his

current or previous attorney with whom she could share the file.

¶8 The defendant put Gorman in touch with Charles Schiedel, who was the deputy defender

at the office of the State Appellate Defender when that office represented the defendant in his

appeal to the Illinois supreme court. Schiedel also submitted an affidavit in support of the

defendant’s postconviction petition. In that affidavit, Schiedel averred that he was contacted by

Gorman and signed the required non-disclosure forms in order to review the material in the

defendant’s street file. Scheidel also consulted Allen Andrews, who had been assigned to represent

the defendant in his appeal before the Illinois supreme court. Based on that consultation and his

review of the file provided by attorney Gorman, Schiedel believed that the material in the street

file was not included in the appellate record sent to the Office of the State Appellate Defender.

Further, Schiedel believed that the material in the file “could have had an impact on the issues of

[the defendant’s] guilt or innocence and/or his sentence.”

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¶9 Allen Andrews averred that he read the record on appeal while preparing the defendant’s

appeal to the Illinois supreme court and noted that the only evidence elicited at trial regarding the

cause of Newburn’s death was that after she was shot, “she was observed at the scene to be in

shock, and that she died from a loss of blood caused by a gunshot wound.”

¶ 10 On November 17, 2017, the circuit court dismissed the defendant’s postconviction petition,

finding that the defendant’s claim that the State withheld exculpatory material in violation of Brady

was “merely speculative and conclusory.” The court chastised the defendant for failing to support

his claims with “factual details” or “specific information.” The defendant appealed.

¶ 11 ANALYSIS

¶ 12 We note that we have jurisdiction to review this matter, as we allowed the defendant’s late

notice of appeal. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 303 (eff. July 1, 2017).

¶ 13 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a

penitentiary to challenge his conviction or sentence for violations of his federal or state

constitutional rights. 725 ILCS 5/122-1 (West 2016); see also People v. Whitfield,

(2005). The Act establishes a three-stage process for adjudicating a postconviction petition.

725 ILCS 5/122-1. During the first stage, at issue here, the circuit court must independently review

the petition, taking the allegations as true, in order to determine whether the petition is frivolous

or patently without merit. People v. Tate,

; 725 ILCS 5/122-2.1(a)(2) (West

2016)). Because most postconviction petitions are drafted by pro se defendants, the threshold for

a petition to survive the first stage is low. People v. Allen,

. While a

defendant must provide some factual support for his claims to show that they are capable of

corroboration, those facts need only state the gist of constitutional claim.

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¶ 14 A circuit court should only dismiss a petition as frivolous or patently without merit if it has

“no arguable basis either in law or fact” and relies on “an indisputably meritless legal theory or a

fanciful factual allegation.” People v. Hodges,

(2009). Meritless legal theories

are those that are completely contradicted by the record, while a fanciful factual allegation is

“fantastic or delusional.”

. We review a circuit court’s dismissal of a petition at the first

stage de novo. People v. White,

, ¶ 8.

¶ 15 The parties in this case agree that the defendant’s petition purports to allege a violation of

Brady v. Maryland,

(1963), requiring the State to disclose material evidence favorable

to the defendant. A successful Brady claim requires a defendant to show: (1) the withheld evidence

was either exculpatory or impeaching; (2) the prosecutor either willfully or inadvertently

suppressed the evidence; and (3) the evidence was material to guilt or punishment. People v.

Morales,

, ¶ 20. Of course, at the first stage of postconviction

proceedings, the defendant need not prove a Brady violation, but only state the gist of a claim.

¶ 16 Here, the defendant did not attach the street file to his petition and therefore, could not

allege that the evidence was either exculpatory or impeaching or that the evidence was material.

Ordinarily, a postconviction petition must attach evidence in support of its claims in order to

establish that the petition’s allegations are capable of objective corroboration. Hodges,

. But section 122-2 of the Act also permits a petitioner to explain, by way of affidavit, why

evidence supporting his allegations cannot be attached. 725 ILCS 5/122-2 (West 2016).

¶ 17 In this case, attorney Gorman’s affidavit provides that explanation. She averred that a court

order prevented her from sharing the street file with the defendant directly and she could only

disclose it to his attorney. The defendant took the additional step of securing an affidavit from his

appellate counsel—who did review the file—in which counsel averred that the evidence “could

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have had an impact on the issues of [defendant’s] guilt or innocence and/or his sentence.” While

counsel does not explicitly state that the street file contained material exculpatory or impeachment

evidence, we must construe the allegation liberally in favor of the defendant. See People v.

Morales,

, ¶ 19. And construed liberally, we conclude that it is at least arguable,

based on Schiedel’s affidavit, that the street file contained evidence which may have impacted the

defendant’s guilt, innocence, or sentence.

¶ 18 With respect to whether the State suppressed the evidence, the defendant submitted an

affidavit from appellate counsel indicating that he believed the street file was not part of the

appellate record. While not all material disclosed to trial counsel necessarily becomes part of the

record on appeal, there is other evidence that raises the inference that the evidence was withheld

from trial counsel. Specifically, Gorman’s affidavit indicates that her own client’s street file

contained exculpatory material that was not disclosed to his trial counsel. And Gorman’s review

of 60 of the 400 plus street files she uncovered revealed that 54—or 90%—of those files contained

material that was not in the defense file. Jason Meisner, Old police ‘street files’ raise question:

Did Chicago cops hide evidence?, Chicago Tribune (Feb. 13, 2016),

https://www.chicagotribune.com/news/ct-chicago-police-street-files-met-20160212-story.html.

Indeed, the State acknowledges that the Chicago police department has a long history of keeping

non-disclosed street files separate from investigative files that are tendered to defense counsel.

See, e.g., Palmer v. City of Chicago,

(7th Cir. 1985); Jones v. City of Chicago,

(7th Cir. 1988). While these facts may not establish that the street file was not disclosed

to the defendant’s trial counsel in the instant case, it is certainly at least arguable that the file was

suppressed.

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¶ 19 Finally, we are not persuaded by the State’s argument that the allegation of suppression is

contradicted by the record. Specifically, the State points out that prior to trial, it certified that all

material required to be disclosed pursuant to Illinois Supreme Court Rule 412 was tendered to

defense counsel. But this self-serving certification in no way contradicts the defendant’s allegation

that the State willfully suppressed the street file for purposes of bringing the matter under the Brady

principle. Illinois Supreme Court Rule 416 required the State to proffer this certification, but it is

far from a fanciful factual allegation to suggest that notwithstanding the certification, the State

nevertheless withheld material evidence.

¶ 20 Given the impossibility, at this stage, of including the allegedly withheld evidence itself,

this pro se defendant has met his low burden of stating an arguable Brady claim. Accordingly, the

trial court erred in summarily dismissing his petition.

¶ 21 CONCLUSION

¶ 22 For the reasons stated, we reverse the circuit court of Cook County’s dismissal of the

defendant’s postconviction petition and remand the case for further proceedings consistent with

this opinion.

¶ 23 Reversed and remanded.

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