No. 1-20-0462 FIRST DIVISION March 6, 2023 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, Cook County. ) v. ) No. 91 CR 22152 ) No. 91 CR 22460 GEORGE ANDERSON, ) Honorable Defendant-Appellant. ) William H. Hooks, ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Hyman concurred in the judgment and opinion. Justice Hyman also specially concurred, with opinion. Justice Lavin specially concurred, with opinion.

OPINION

¶1 Defendant-appellant George Anderson submitted a claim to the Illinois Torture Inquiry and

Relief Commission (TIRC) under the Illinois Torture Inquiry and Relief Commission Act

(TIRC Act) (775 ILCS 40/1 et seq. (West 2018)), alleging that his convictions in two

underlying cases resulted from his torture by Chicago police in August 1991, over the course No. 1-20-0462

of 30 hours in police custody. He alleged that the two inculpatory statements he signed were

coerced, and he sought suppression of those statements and new trials.

¶2 The TIRC found sufficient evidence of torture to refer the matter to the circuit court for

judicial review. The trial court conducted an evidentiary hearing over the course of four years,

at which it heard testimony from numerous witnesses and considered voluminous “pattern and

practice” evidence of prior allegations against the detectives who interrogated defendant. In its

posthearing decision, the trial court credited the accused detectives, determined that none of

the pattern and practice evidence was relevant, and found that defendant fabricated his claims

of police torture. The court thus denied defendant any relief.

¶3 We conclude the trial court erred because it did not apply the proper initial inquiry, i.e.,

whether defendant showed that newly discovered evidence would likely have altered the result

of a suppression hearing. Given the voluminous evidence of past police abuse, defendant met

that initial burden. Moreover, we find that the State could not meet its corresponding burden

to prove that the statements were, in fact, voluntary. Accordingly, we reverse and remand for

new trials, at which defendant’s inculpatory statements will be excluded.

¶4 I. BACKGROUND

¶5 A. The Underlying Crimes

¶6 This appeal concerns two separate cases, case No. 91 CR 22152 (the Miles case) and case

No. 91 CR 22460 (the Miggins case), which arose from separate shootings in 1991.

¶7 In June 1991, 14-year-old Kathryn Miles was killed, and three others were wounded in a

shooting. Defendant (along with codefendant Jerome Johnson) was charged in the Miles case

with counts of first degree murder and other offenses.

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¶8 In August 1991, 11-year-old Jeremiah Miggins was killed by a stray bullet during a

shootout between rival gang members. Two men, Anthony Wilson and Steven Crosby, suffered

gunshot wounds in that incident. Defendant, Johnson, and Michael Sutton were charged with

murder, attempted murder, and aggravated battery with a firearm in the Miggins case. 1

¶9 B. Defendant’s Inculpatory Statements

¶ 10 On August, 21, 1991, defendant was arrested by Chicago police and brought to the Area 3

station, where he was interrogated regarding the Miggins shooting. At 7:45 a.m. on August 22,

1991, defendant signed a statement in the presence of Detective Michael Kill and an assistant

state’s attorney, Joseph Brent. In that statement, defendant admitted that he drove Johnson to

and from the scene of the shooting.

¶ 11 Other detectives interrogated defendant regarding the Miles shooting. In the evening of

August 22 (after being in police custody for over 30 hours), defendant signed a separate

statement regarding Miles’s shooting that was handwritten by another assistant state’s attorney,

Brian Grossman.

¶ 12 C. Motion to Suppress Hearing

¶ 13 Defendant moved to suppress his written statements in both the Miles and Miggins cases,

on the ground that he was tortured by police. On January 24, 1994, the trial court (Hon. Joseph

Urso) held a suppression hearing.

¶ 14 1. Defendant’s Suppression Hearing Testimony

¶ 15 Defendant testified that on the afternoon of August 21, 1991, he and Sutton were pulled

over by police. In the late evening, he was taken to 39th Place and California Avenue, where

1 Johnson was a codefendant in both the Miles and Miggins cases. Johnson has similarly alleged that detectives at Area 3 interrogated and beat him until he signed confessions in both cases.

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he was brought to a room and handcuffed by his left hand to a wall. Kill attempted to question

him and “ignored” his request for an attorney. Kill left after defendant refused to answer his

questions. About an hour later, Kill and another officer returned and asked if he was “ready to

talk.” Defendant again requested an attorney. Kill then “kicked the handcuffs that was on my

left hand to the wall”, which was painful. Defendant also testified that the other officer (whom

he did not name) used his hands to hit defendant twice in the face. Kill came back alone after

45 minutes and asked if he was “ready to talk.” Defendant repeated that he wanted an attorney,

and Kill left again.

¶ 16 Kill returned with a state’s attorney, later identified as Brent. Defendant said he wanted an

attorney, but Brent “didn’t say anything.” Defendant refused to answer their questions and was

again left handcuffed to the wall. When Kill and Brent returned and urged defendant to “tell

them what happened” in the Miggins shooting, defendant still did not talk, so he was left alone

again. When they returned yet again, defendant answered their questions. At that point, Kill

and Brent told him they would speak to Johnson and return.

¶ 17 Kill later took defendant to another room, where Brent questioned him and wrote out a

statement. Defendant was shown the statement, but he could not read it because Kill was

“moving the pages” too quickly. Kill told defendant where to sign the document, but the

statement was not read to him before he signed it. Defendant had not slept or eaten from his

arrest to when he signed the Miggins statement.

¶ 18 After he signed the Miggins statement, he was taken to a new room with lockers, where he

was left handcuffed to the radiator. Around two hours later, two different detectives (later

identified as James O’Brien and Joseph Stehlik) asked him about a separate incident.

Defendant said he wanted an attorney, but they did not respond. When defendant refused to

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answer questions, he was taken back to the locker room, where they handcuffed his hands

above his head. 2 He was left in that room for about two hours.

¶ 19 When O’Brien and Stelick returned and asked him about the Miles shooting, defendant

said he did not know what they were talking about. O’Brien slapped defendant in the face.

Stehlik brought out a “rubber hose or pipe.” O’Brien placed a book on defendant’s left side,

then used the pipe to hit him through the book five or six times. They left him “hanging” there.

¶ 20 About an hour later, he was taken to another room, where he was cuffed to a radiator. The

room became very cold. O’Brien and Stehlik returned a number of times, but defendant

declined to speak with them.

¶ 21 Stehlik later returned to the room with an assistant state’s attorney (later identified as

Grossman). When defendant he said he wanted a lawyer, Grossman did not respond, and

defendant was left alone in the room. Defendant recalled that Stehlik and Grossman repeatedly

asked if he was ready to talk but left him in the room (still handcuffed) when he declined.

¶ 22 Eventually, Stehlik brought defendant to a room where Grossman was waiting with “a

paper written out sitting on the desk.” Stehlik asked him to sign the paper. Defendant was not

given a chance to review the statement, and he was not told its contents. At Stehlik’s direction,

defendant signed the document and initialed it on several pages. He did so because he “was

tired of being in that freezing room.” Defendant had not eaten or slept.

¶ 23 On cross-examination with respect to Miggins statement, defendant answered negatively

when asked if Detective Kenneth Boudreau struck him. He acknowledged he signed and

2 He could not see what the cuffs were attached to above him but said it “might have been a pole” or a “hook.”

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initialed the statement at several points, including where it stated that he had not been

threatened. He maintained that he did not know that was included in the statement.

¶ 24 On cross-examination regarding the Miles statement, defendant recalled O’Brien put the

book on defendant’s side “and hit me with the rubber thing on my left side, but he hit the

book.” Defendant was taken to the room with air conditioning and left there for about “seven

hours.” He maintained that he never told Grossman anything about the Miles shooting and that

the statement “was already written” when Grossman presented it to him.

¶ 25 2. Detectives’ Testimony at the Motion to Suppress Hearing

¶ 26 Detective Kill testified that he and his partner, Detective John Halloran, investigated the

Miggins shooting. At approximately 10 p.m. on August 21, 1991, Kill and Halloran

interviewed defendant. Kill said that he unhandcuffed defendant from a ring on the wall and

that, to his knowledge, defendant was not handcuffed after that point.

¶ 27 Kill read defendant Miranda warnings (see Miranda v. Arizona,

(1966)), and

defendant said he understood them and wished to answer questions. After a 30-minute

conversation, Kill and Halloran left the room. Kill returned at about 2:15 a.m. with Brent, who

gave Miranda warnings. After a conversation of 25 to 30 minutes, Kill left with Brent and

defendant still in the room.

¶ 28 At about 7:45 a.m., Kill brought defendant to a room with a desk. At that time, the prior

conversation “was reduced to writing” by Brent, and defendant signed the statement and

initialed corrections.

¶ 29 Kill denied that Boudreau was present for either the 2:15 a.m. or 7:45 a.m. conversations.

Kill denied he or any other detective ever kicked or slapped defendant. Kill said it was

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“impossible” for defendant to have been cuffed with his hands above his head. Kill said

defendant was given food from McDonald’s before his statement was reduced to writing.

¶ 30 Kill acknowledged that on the same night he was also interviewing codefendants Johnson

and Sutton regarding the Miggins shooting. Kill denied that he referenced Johnson’s statements

when he spoke to defendant. Kill specifically denied ever telling defendant that they knew he

was not the shooter or telling him that he would “die in Joliet” if he did not talk.

¶ 31 Kenneth Boudreau testified he was Kill’s partner and was at Area 3 on the night of

defendant’s arrest. Boudreau helped interview other witnesses for the Miggins shooting

investigation but denied he was present for any interviews with defendant. Boudreau recalled

that he bought food for the arrestees sometime in the early morning, but he denied any other

contact with defendant.

¶ 32 Detective Joseph Stehlik testified that on August 22, 1991, he interviewed defendant in

connection with Miles’s June 1991 shooting. Stehlik and his partner, James O’Brien, brought

defendant to an interview room around 1:15 p.m. Defendant indicated he understood his

Miranda rights and agreed to speak with them.

¶ 33 Stehlik was present when Assistant State’s Attorney (ASA) Grossman spoke with

defendant around 5 p.m. and again at around 7 p.m. At approximately 8:30 p.m., Grossman

took defendant’s handwritten statement and reviewed it with defendant. Defendant signed each

page of the statement, as did Stehlik and Grossman. Stehlik denied that defendant ever

complained of abuse by any detective. He specifically denied that O’Brien hit the defendant in

the ribs.

¶ 34 Detective James O’Brien testified he and Stehlik interviewed defendant around 1:15 p.m.

and they spoke for about 30 minutes. O’Brien stated that he did not participate in any other

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interview of defendant. O’Brien denied that he struck defendant or that he saw anyone else

kick, slap, or punch defendant. He never saw defendant handcuffed on that day.

¶ 35 Grossman testified that, in connection with the Miles shooting investigation, he went to the

station on August 22, 1991. With Stehlik and O’Brien present, Grossman advised defendant

of his Miranda rights, after which they had a conversation. Later that evening, Grossman had

a second conversation with defendant, again with the detectives present. After that

conversation, Grossman asked defendant if he wanted to keep his statement as an oral

statement, if he wanted Grossman to reduce it to writing, or if he wanted to have a court reporter

take his statement. Defendant indicated he wanted a handwritten statement.

¶ 36 Around 8:30 p.m., Grossman met with defendant outside the presence of detectives.

Grossman asked defendant if he needed anything and asked how he had been treated.

Defendant said he did not need anything and that “he’s been treated fine.” Defendant never

told Grossman that anyone had hit him or that he was left in a cold room.

¶ 37 Grossman took defendant’s handwritten statement with Stehlik present. Grossman

presented defendant with printed Miranda warnings, which defendant read and signed to

indicate his understanding. 3 Grossman then questioned defendant and wrote out a statement,

3 The record shows that the statements in both the Miggins case and the Miles case were written on forms that included the following preprinted paragraph: “I understand I have the right to remain silent and that anything I say can be used against me in a court of law. I understand that I have the right to talk to a lawyer and have him present with me during questioning, and if I cannot afford to hire a lawyer one will be appointed by the court to represent me before any questioning. Understanding these rights, I wish to give a statement.” Defendant’s signature appears directly below that paragraph on both statements. Following these preprinted warnings, the substance of the statements was handwritten by Brent and Grossman. The record does not reflect that defendant was asked to sign a preprinted Miranda waiver form that was wholly separate from the forms containing the incriminating statements about the murders. Use of such an additional signed waiver document gives courts and reviewing courts extra evidence from which to determine that a defendant’s statement to police was, in fact, voluntary. See, e.g., People v. Buschauer,

(finding waiver memorialized by signed waiver form was valid

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which he reviewed with defendant. Defendant signed at the bottom of each page and initialed

corrections. Within the statement, defendant acknowledged that he had been treated well.

¶ 38 Brent testified that as of August 1991, he was an assistant state’s attorney. He met with

defendant and Kill around 2:15 a.m. on August 22, 1992. After Brent advised defendant of his

Miranda rights, they spoke for about half an hour with Kill present. When Kill left, Brent asked

defendant how he was treated. Defendant said he was treated “fine” and had no complaints.

¶ 39 Defendant asked Brent to write down his statement. At about 7:45 a.m., Brent met with

defendant with Kill present. Brent asked defendant to read and sign a preprinted statement of

his Miranda rights, and defendant complied. With Kill present, Brent wrote down what

defendant told him. Brent went over the statement with defendant, who made a number of

corrections. Defendant signed every page of the statement.

¶ 40 3. Ruling on Motion to Suppress

¶ 41 The trial court denied the motion to suppress, finding that defendant was advised of his

Miranda rights and that he never asked for an attorney. The court found that defendant was not

“physically coerced” and that the statements were not the product of psychological or mental

coercion.

¶ 42 D. Defendant’s Guilty Plea in the Miles Case

¶ 43 In May 1994, defendant pleaded guilty in the Miles case to first degree murder and three

counts of attempted first degree murder. As part of the factual basis, the State noted that

despite the fact that suspect did not know that police had already obtained warrant for his arrest). We encourage the use of such additional documentation to better ensure that a defendant’s waiver of his Miranda rights is voluntary, knowing, and intelligent. See People v. Braggs,

(2003) (“A valid waiver of Miranda rights must be knowingly and intelligently made.”).

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defendant gave inculpatory oral and written statements. The court sentenced defendant to 40

years for murder and concurrent sentences of 20 years on each of the attempted murder counts.

¶ 44 E. Defendant’s Testimony at the Trial of the Miggins Case

¶ 45 In the Miggins case, the State proceeded to trial on charges of felony murder, attempted

murder of Anthony Wilson and Steven Crosby, and aggravated battery with a firearm.

Defendant testified at his bench trial in November 1994. He recalled that on the date of the

shooting, Eric Clark told him and Johnson that Clark was driving Johnson’s “Delta 88” vehicle

when Clark was shot at by someone named Lamont. Johnson asked defendant to help him

retrieve the Delta 88 vehicle. Defendant drove them to the area in a Chevrolet, where they saw

the Delta 88 in an alley. When Johnson exited the Chevrolet, defendant saw that Johnson had

a gun. Defendant heard shots and saw Johnson shoot at “Mike.” Johnson ran back to the

Chevrolet, and defendant drove them away as Mike shot at them. Defendant testified the only

reason he went to the scene was to help find Johnson’s vehicle.

¶ 46 On cross-examination, defendant acknowledged that he spoke to ASA Brent and signed a

statement on August 22, 1991. The following exchange ensued:

“Q. Now, let me ask you at the end of that statement

*** you told the state’s attorney in there you had been

treated well by the police and the assistant state’s

attorney, right?

A. Yes.

Q. That was true, right?

A. Yes.

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Q. You also stated that you weren’t made any

promises in return for the statement nor you weren’t

threatened in any way. You told that to the state’s

attorney?

A. Yes.

Q. That was true, right?

A. Yes.

Q. You told the state’s attorney you were offered

both food and water and they were, brought food from

McDonald’s, right?

A. Yes.

Q. That was true?

A. Some of it.

Q. Some of it.

A. Yes.

Q. You told the state’s attorney that you were free

from the effects of drugs and alcohol, that was true?

A. Yes.

Q. So you weren’t treated badly by the police?

A. No.”

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¶ 47 The trial court found defendant guilty of first degree murder, attempted first degree murder,

and aggravated battery with a firearm. The court sentenced defendant to natural life for first

degree murder, as well as 25 years for attempted first degree murder.

¶ 48 F. Direct Appeal of the Miggins Conviction

¶ 49 On direct appeal in the Miggins case, we affirmed over defendant’s contention that the

State failed to prove his guilt beyond a reasonable doubt. People v. Anderson,

(1996) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 50 G. Prior Collateral Proceedings

¶ 51 Defendant filed four unsuccessful petitions, which are summarized in the May 2010

opinion affirming dismissal of his fourth postconviction petition. People v. Anderson,

(2010). In June 2010, defendant filed a pro se motion to vacate the murder

conviction in the Miggins case. On May 20, 2013, this court affirmed the dismissal of that

petition on res judicata grounds. People v. Anderson,

.

¶ 52 On March 2, 2011, defendant filed a “Combined Petition for Relief Under the Post-

Conviction Hearing Act and for Relief From Judgment under Section 2-1401 of the Code of

Civil Procedure,” which corresponded to both the Miles and Miggins cases. 4 On the same date,

he filed a “Motion for Leave to File a Successive Petition for Post-Conviction Relief.”

Defendant’s March 2011 filings largely consisted of claims of police torture. With respect to

the Miggins case, defendant additionally asserted a claim of actual innocence premised on a

new eyewitness affidavit from Bertrum Anderson, as well as the State’s failure to disclose

evidence in violation of Brady v. Maryland,

(1963).

4 On April 26, 2011, defendant informed the court that he wished the combined petition to apply to the Miles case as well as the Miggins conviction.

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¶ 53 On November 23, 2011, the trial court entered an order in the Miles case that dismissed the

section 2-1401 petition but advanced the postconviction petition for second stage proceedings.

The court stated it was doing so only because it was unable to locate the file for the Miles case

number and 90 days had elapsed since the filing. Defendant subsequently moved to hold that

petition “in abeyance” pending the outcome of TIRC proceedings.

¶ 54 On November 23, 2011, the trial court issued an order in the Miggins case denying leave

to file a successive petition and dismissing the section 2-1401 petition. In appeal No. 1-12-

1321, defendant challenged the denial of leave to file a successive petition, insofar as it relied

on the new affidavit and the alleged Brady violation. That appeal did not raise any argument

concerning defendant’s claims of police torture. On September 6, 2022, this court issued an

order reversing the denial of defendant’s motion for leave to file a successive postconviction

petition, remanding for further proceedings with respect to defendant’s actual innocence and

Brady claims. People v. Anderson,

.

¶ 55 H. Defendant’s TIRC Claim and TIRC Referral

¶ 56 In May 2011, defendant submitted a claim of torture with the Torture Inquiry and Relief

Commission (TIRC) pertaining to his convictions in both the Miles and Miggins cases. In

support, he submitted an eight-page affidavit describing abuse by detectives, including Kill,

Boudreau, Halloran, Stehlik, and O’Brien. He alleged that Kill kicked his handcuffs and that

Boudreau and Halloran slapped and punched him before he signed the statement in the Miles

case. Elsewhere in the affidavit, defendant recalled that O’Brien took a pipe from Stehlik, put

a telephone book on defendant’s left side, and struck the book several times. Defendant further

averred that he experienced pain in his left side and blood in his urine in the following months.

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He stated that he was diagnosed with “UPJ obstruction” caused by trauma to his left kidney,

for which he underwent surgery in March 1993.

¶ 57 The TIRC issued its disposition in June 2012 and issued an amended disposition in March

2014, in which it found defendant’s “[c]laim is credible and merits judicial review.” The TIRC

found that defendant had “consistently claimed since his motion to suppress to have been

tortured in the manner alleged” and that his claim was “strikingly similar to other claims of

torture” documented in investigations of Jon Burge and officers under his command.

¶ 58 The TIRC noted that the detectives identified by defendant were accused of abuse by

numerous other claimants. Specifically, TIRC records showed that O’Brien was accused by

over 30 individuals of physical abuse and coercion, Boudreau was accused by over 35

individuals, Kill was accused by 20 persons, and Halloran was accused by over 35 individuals.

The TIRC noted that one claimant, Ivan Smith, alleged that O’Brien and Stehlik beat him

through a phonebook, which was “strikingly similar” to defendant’s allegations.

¶ 59 I. Circuit Court Evidentiary Hearing Following TIRC Referral

¶ 60 Following the TIRC’s referral to the circuit court, the matter was assigned to Hon. William

H. Hooks. Judicial review of defendant’s TIRC claim was consolidated with the review of

Anthony Jakes’s TIRC claim, in which Jakes alleged Kill and Boudreau coerced his

confession. 5 The circuit court conducted an evidentiary hearing that commenced in July 2015

and included testimony by a number of witnesses, including defendant and several of the

During the course of the evidentiary hearing, Jakes’s claim was resolved when the State moved to 5

vacate his conviction and dismissed the charges against him. Jakes eventually obtained a certificate of innocence. People v. Plummer,

.

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accused officers, over the next few years. 6 Defendant asked that the court vacate his

convictions, order new trials, and suppress his statements.

¶ 61 1. Defendant’s Evidentiary Hearing Testimony Regarding the Miggins Statement

¶ 62 Defendant testified that when he was brought to Area 3 on August 21, 1991, Kill

handcuffed him to a ring on the wall and left him alone for what seemed like “hours.” When

Kill returned, defendant asked what he was being charged with. Kill told him he had “killed

that little boy.” Defendant denied that he killed anyone and said that he wanted an attorney.

Kill did not respond and left.

¶ 63 Some time later, Kill, Halloran, and Boudreau entered the room and asked if he was ready

to talk. Defendant, still handcuffed, said he wanted an attorney. The detectives then left him

for what seemed like “hours.” When they returned, Kill “kicked the handcuffs and my arm,

and Halloran and Boudreau punched me in the chest and hand” before leaving him again.

¶ 64 At some point, the same three detectives returned, and Kill told defendant that he would

“die in Joliet” if he did not cooperate. The detectives left again and returned with ASA Brent.

When defendant told Brent that he wanted a lawyer, he was left alone again. Some time later,

the same three detectives returned and told defendant to “tell [Brent] what happened.” When

Brent came into the room, defendant again requested an attorney. At that point, Kill “told me

in front of the State’s attorney that I was going to die in Joliet if I didn’t talk to him.”

¶ 65 The detectives later moved him to a room with a desk, where Brent was waiting. When

defendant again said he wanted an attorney, Brent left. Kill told defendant that he was going

to talk to Brent “or else” and directed defendant as to what he should say.

6 The record reflects that Kill did not testify regarding defendant’s allegations at the evidentiary hearing and that he is now deceased.

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¶ 66 Kill, Halloran, and Boudreau remained in the room when Brent returned. Kill put his hand

on defendant’s shoulder, and defendant felt pressured and scared. Defendant spoke to Brent,

who wrote out the statement. Defendant did not have an opportunity to read the statement but

signed it “[b]ecause Detective Kill and Boudreau and Halloran told me to.” Defendant had not

slept or eaten from the time of his arrest.

¶ 67 2. Defendant’s Testimony Regarding the Miles Interrogation

¶ 68 Defendant testified that, after he signed the Miggins statement, he was taken to a different

room with lockers and handcuffed to a radiator. After what seemed like hours, three different

detectives (O’Brien, Stehlik and Smith) entered the room and questioned him about the Miles

shooting that occurred in June 1991. Defendant said he did not know what they were talking

about and asked for an attorney. He was then left alone for two hours.

¶ 69 O’Brien and Stehlik eventually brought him to a different room and asked if he was “ready

to tell them what happened on June 9th.” Defendant again requested an attorney. The detectives

took him back to the room with lockers and “handcuffed me with both hands over my head.”

¶ 70 When the detectives returned, defendant saw Stehlik with a “black pipe,” which he gave to

O’Brien. O’Brien placed a telephone book on defendant’s left side and struck the book five or

six times with the pipe. Meanwhile, Stehlik “was in my ear telling me to talk to him.”

¶ 71 O’Brien and Stehlik later brought him to another room, handcuffed him to a radiator, and

turned the air conditioner on. He was left for a “long time” before they returned with Grossman.

When defendant told Grossman he wanted an attorney, he was left alone in the room. At one

point he told the detectives he was cold; they responded that they would turn off the air

conditioning “once [he] got through with the state’s attorney.”

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¶ 72 After a number of hours, O’Brien and Stehlik eventually brought him to another room

where Grossman was waiting. There was a paper on the table. Grossman told defendant “this

is what Detectives Stehlik and O’Brien believe went on out there that day” and that defendant

was going to sign it. Defendant signed and initialed it where Grossman directed him to, because

he did not want to go back to the cold room. He did not have a chance to review the statement.

¶ 73 3. Defendant’s Medical Testimony

¶ 74 Defendant recalled that, when he was brought to jail, he told a “medical person” that he

had been attacked by police. That person told him that, because he did not have bruises, there

was “nothing [he] can do.”

¶ 75 After about a week in jail, defendant had pain where he was struck on his left side, as well

as blood in his urine and a high fever. He was prescribed antibiotics and felt better for a “little

while.” Some time later, he again experienced blood in his urine, fever, and nausea. Defendant

recalled three incidents where he “passed out” after similar symptoms. After the third instance

in December 1992, he was hospitalized. In March 1993, he had surgery for a ureteropelvic

junction (UPJ) obstruction on his left side. 7 Defendant testified that he had not mentioned the

UPJ obstruction or surgery when he testified at the suppression hearing, because he was

advised by his counsel that the judge would not believe it.

¶ 76 Defendant testified that he plead guilty in the Miles case to avoid the death penalty and

because he “didn’t feel I could win at trial after [the judge] denied the motion to suppress.”

Regarding the Miggins case, defendant acknowledged he did not describe police abuse in his

7 “Ureteropelvic junction obstruction is a condition where blockage occurs at the junction where the ureter attaches to the kidney.” Ureteropelvic Junction Obstruction, Johns Hopkins Med., https:// www.hopkinsmedicine.org/health/conditions-and-diseases/ureteropelvic-junction-obstruction (last visited Feb. 22, 2023) [https://perma.cc/T383-CM6B].

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trial testimony. Defendant said he and his trial attorney decided “not to bring it up because he

was trying to save my life” and avoid the death penalty. Defendant testified that he was

surprised when the State cross-examined him about how he had been treated by police and that

he made a “mistake” when he agreed on cross-examination that he had been treated well.

¶ 77 4. Testimony from Defendant’s Former Counsel

¶ 78 Hon. Stuart Katz testified that in 1991 he worked for the Cook County Public Defender’s

Office. He had no independent recollection of representing defendant but acknowledged that

he drafted the motion to suppress. Judge Katz acknowledged that the motion to suppress did

not reference defendant being struck with a pipe or suffering any medical problems. The case

was assigned to another public defender before the hearing on the motion to suppress.

¶ 79 Hon. Thomas J. O’Hara, an associate judge of the circuit court of Cook County, testified

that he was a public defender in 1991 and represented defendant in the Miles and Miggins

cases. He recalled that defendant was facing the death penalty. Regarding defendant’s trial

testimony in the Miggins case, O’Hara recalled telling defendant that “we would not go into”

his claims of police abuse on direct examination, because the same trial judge had denied the

motion to suppress. O’Hara had no recollection of defendant telling him that he was treated at

a hospital or had surgery for injuries caused by police.

¶ 80 5. Lay Witnesses Called by Defendant

¶ 81 Robert Tenny testified that he was in Cook County Jail with defendant in 1992. Tenny

recalled an occasion where defendant passed out in jail and was “stretched out on the floor.”

¶ 82 Anna Anderson testified that she is defendant’s cousin. She testified that, when she visited

him in jail sometime after his arrest, he told her that detectives kicked his hands while

handcuffed, “hung him up like a slave and beat him,” put a “phone book on his side and beat

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him with something black,” and left him in a room that was “freezing.” He later told her about

an incident where he “passed out” and was treated at Cermak hospital.

¶ 83 Rosalyn Anderson, defendant’s wife, similarly testified that during a jail visit defendant

told her that police “hung him from a pole with his handcuffs,” beat him in the side with the

telephone book and a pole, and put him in a “freezing” room. He later complained about pain

in his side and problems urinating.

¶ 84 Brenda Hoover testified that, when she visited defendant a few days after his arrest, he was

in pain and holding his left side. He told her that police had beaten him up. Joanne Goldman,

the mother of one of defendant’s children, similarly testified that defendant appeared to be in

pain when she visited him in jail. Defendant told her that he had been “questioned for hours

and handcuffed to a wall and was jumped on.”

¶ 85 6. Ivan Smith’s Pattern and Practice Testimony

¶ 86 Defendant called Ivan Smith (Ivan) as a pattern and practice witness. Ivan recalled that in

November 1991, when he was 20 years old, he was arrested in Tennessee in connection with

a murder in Chicago. While jailed in Tennessee, he was interrogated by Detectives O’Brien

and Stehlik as well as Mike Smith, an assistant state’s attorney. When Ivan said he wanted his

attorney present, O’Brien slapped him in the face. The detectives told him they wanted him to

testify against another individual. When Ivan refused, O’Brien slapped him in the back of the

head. When Ivan tried to stand up, he was handcuffed behind his back. When he said he wanted

his lawyer, O’Brien “started punching me in my chest.”

¶ 87 The detectives then forced Ivan to lie on his back. Stehlik placed a phone book on his chest

and then struck the book with an object that looked like a wooden stick. As Stehlik was hitting

him, O’Brien was asking if he was ready to cooperate. Stehlik and O’Brien later switched

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places, with O’Brien striking him in the chest until he agreed to provide a statement. Ivan said

he did not have any marks on his body after the beating.

¶ 88 7. Martin Reeves’s Pattern and Practice Testimony

¶ 89 Martin Reeves testified that he had been convicted of murder in 1988 but was later

exonerated and won a wrongful conviction suit.

¶ 90 Reeves recalled that on August 26, 1988, officers brought him to Area 3, where he was

cuffed to a ring on the wall. Detective Kill and another officer (whom Reeves did not name)

showed him photos of crime victims, including a “charred body.” Reeves denied knowing the

victims, but the unnamed officer told him that “you did this, and you’re going to pay for it.”

¶ 91 Reeves was transported by an officer to another location for a lie detector test. On the way

back, the officer told him he failed the test and struck him in the face. He was brought back to

a room at Area 3 and handcuffed to the wall. Reeves recalled that officers Dowley and Peteck

beat him as he was cuffed to the wall and that Dowley threatened to shoot him. At another

point, Peteck kicked him in the chest and walked out.

¶ 92 Eventually, Kill came in and asked Reeves if he was hungry. When Reeves answered yes,

Kill handed him a piece of paper and told him that, if he signed it, he could eat and go home.

Reeves read the paper, which contained a confession. Kill left when Reeves refused to sign the

paper. Reeves heard Kill tell the other officers: “That n*** can read.”

¶ 93 8. Documentary Pattern and Practice Evidence

¶ 94 In addition to Ivan Smith and Reeves’s testimony, defendant submitted voluminous

documentary “pattern and practice” evidence relating to allegations in other cases by numerous

other individuals claiming abuse or coercion. The documentary evidence includes prior hearing

and deposition testimony, motions to suppress, witness affidavits, expert reports, and

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postconviction filings relating to allegations made by individuals including Cortez Brown (also

known as Victor Safforld), Harold Hill, Daniel Young, Nicholas Escamilla, Tyrone Reyna,

Jerry Gillespie, Jason Gray, Peter Williams, Oscar Gomez, Eric Gomez, Johnnie Plummer,

Ronald Kitchen, Terrill Swift, Kilroy Watkins, Jesse Clemon, Marcus Wiggins, Clayborn

Smith, Samhan Ali, Glen Dixon, Bobby Spencer, Gregory Logan (also known as Gregory

Reed), Andre Altman, Eric Jackson, and Maurice Lane.

¶ 95 Many of those complaints alleged involvement by one or more of the detectives accused

by defendant and in the same time period as defendant’s August 1991 interrogation. For

example, Altman and Jackson filed a federal lawsuit in which they alleged that O’Brien and

Stehlik beat and struck them in November 1991 after they refused to stand in a lineup. Watkins

testified that in January 1992 Boudreau struck and choked him during an interrogation.

Watkins testified that Boudreau, Halloran, and an assistant state’s attorney gave him a

“prepared statement” that they asked him to sign. Harold Hill testified that Halloran and

Boudreau struck him and that Boudreau told him the information to include in his inculpatory

statement in March 1992. Maurice Lane alleged that O’Brien choked, kneed, and slapped him

in July 1992. In a deposition related to Hill’s federal lawsuit, Clayborn Smith testified that

Halloran hit and kicked him during interrogations in October 1992.

¶ 96 The pattern and practice evidence also included James O’Brien’s November 2008

deposition testimony in Hill’s federal litigation, Hill v. City of Chicago, No. 06 C 6772,

(N.D. Ill. July 6, 2011)). O’Brien invoked the fifth amendment dozens of times

when asked if he interrogated, threatened, or used force against numerous individuals in police

custody. O’Brien likewise invoked the fifth amendment when asked if he placed a telephone

book on Ivan Smith’s chest and struck the book with a nightstick.

- 21 - No. 1-20-0462

¶ 97 The record also includes Halloran’s deposition in Hill’s lawsuit. Halloran took the fifth

amendment in response to virtually every question, including when asked whether he,

Boudreau, O’Brien or other detectives struck numerous individuals in the 1990s.

¶ 98 The evidence also included O’Brien’s May 2009 testimony from Cortez Brown’s

postconviction proceedings. O’Brien invoked the fifth amendment when asked whether he

learned to abuse detainees without leaving a mark on their bodies and whether he coerced

confessions of several individuals in the late 1980s and early 1990s.

¶ 99 9. Defendant’s Medical Witness

¶ 100 Dr. John Cudecki testified that in 1993 he performed surgery on defendant at Cook County

Hospital for UPJ obstruction, which is a “blockage of the kidney where the renal pelvis

becomes the ureter.” A UPJ obstruction has a number of possible causes, including trauma. He

testified that, if someone is struck on the side with his arms raised, it could increase the

likelihood of a UPJ obstruction. Dr. Cudecki agreed it was “possible” that the trauma defendant

allegedly suffered by detectives could be related to his UPJ obstruction.

¶ 101 10. The State’s Witness Testimony Regarding the Miggins Statement

¶ 102 Boudreau

¶ 103 Boudreau testified that on the evening of August 21, 1991, he and Kill became involved in

investigating the Miggins shooting. Detectives Halloran and Smith handled the investigation

“during the day shift.” Boudreau and Kill were asked to assist due to the number of victims,

witnesses, and suspects.

¶ 104 Boudreau interviewed other suspects, but he denied that he interviewed defendant or that

he was involved in taking defendant’s statement. He denied seeing Kill or Halloran kick or hit

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defendant. Boudreau recalled buying food for detainees, but he denied any other contact with

defendant.

¶ 105 Halloran

¶ 106 Halloran testified that he and his partner, John Smith, investigated the Miggins murder on

August 21, 1991. Halloran and Smith moved defendant into an interview room around 8:30

p.m. Halloran recalled he handcuffed defendant to a ring on the wall because the door to the

room was not secure.

¶ 107 Around 10 p.m., Halloran and Kill reentered the room. After Kill read defendant his

Miranda rights, they had a conversation of about 30 minutes regarding the events surrounding

Miggins’s shooting. Halloran testified that defendant did not ask for an attorney. Halloran

denied that he or Kill ever kicked, struck, or otherwise abused defendant. Halloran testified

that Boudreau was not present when he met with defendant. Halloran was not present when

defendant signed his statement.

¶ 108 Brent

¶ 109 The court considered Brent’s June 2018 deposition testimony. Brent recalled meeting with

defendant and Kill. After Brent informed defendant of his Miranda rights, they had an initial

conversation for about a half hour. Kill subsequently left Brent in the room alone with

defendant. Brent asked defendant how he was treated by police, and defendant “had no

complaints.” Brent denied that defendant ever said he was struck or abused by any detective

or that defendant asked for an attorney.

¶ 110 Brent recalled that Kill was the only other detective who was present when defendant’s

statement was taken and that there was “no intimidation whatsoever.” Brent reviewed the

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statement with defendant before defendant signed it. He did not see any detective strike, kick,

or threaten defendant.

¶ 111 11. State’s Witness Testimony Regarding the Miles Statement

¶ 112 O’Brien

¶ 113 O’Brien recalled that he was investigating the Miles shooting when defendant became a

person of interest. On August 22, 1991, he learned that defendant was in custody. O’Brien and

Stehlik interviewed defendant that afternoon for about half an hour. O’Brien denied that he or

Stehlik ever threatened, kicked, slapped, or otherwise made contact with defendant. He denied

that any object was used to strike him. O’Brien also testified there was no air conditioning in

the Area 3 building.

¶ 114 O’Brien acknowledged that he and Stehlik interviewed Ivan Smith in Tennessee, but he

denied that Ivan Smith was mistreated.

¶ 115 On cross-examination, O’Brien acknowledged that he asserted his fifth amendment rights

when asked in prior proceedings whether he had mistreated numerous other detainees,

including Ivan Smith.

¶ 116 Stehlik

¶ 117 Stehlik acknowledged that he was present when Grossman questioned defendant. Stehlik

said defendant “was never cuffed.” Stehlik recalled that defendant agreed to have his statement

reduced to writing by Grossman and that defendant had a chance to review the statement.

Stehlik denied that defendant was ever struck or threatened or that he asked for a lawyer.

Stehlik said the air conditioner was broken in the room where defendant gave his statement.

- 24 - No. 1-20-0462

¶ 118 Stehlik recalled going to Tennessee with O’Brien to extradite Ivan Smith. He recalled that

he and O’Brien interviewed Ivan Smith but denied that they threatened or struck him.

¶ 119 ASA Grossman

¶ 120 Brian Grossman recalled that on the afternoon of August 22, 1991, he met with defendant

and advised him of his Miranda rights. He then had an initial conversation with defendant for

about an hour regarding the Miles homicide. At about 7 p.m., Grossman met with defendant

and Stehlik. During that conversation, defendant indicated he wanted Grossman to write up his

statement. At one point, Grossman spoke to defendant outside the presence of detectives and

asked how the police had treated him. Defendant “acknowledged they treated him well.” Later

that evening, Grossman took defendant’s statement with Stehlik present. Grossman reviewed

each page with defendant and gave him an opportunity to make corrections. Defendant said he

had been treated well and denied that he had been threatened.

¶ 121 12. The State’s Medical Expert Witness

¶ 122 The State called Dr. Mark Jonathan Schacht as an expert witness. Dr. Schacht opined that

defendant had a “bilateral UPJ obstruction” which is congenital, meaning he was born with it.

Dr. Schacht opined that trauma did not cause defendant’s bilateral UPJ obstruction. Dr.

Schacht testified that trauma to the kidney significant enough to cause bleeding would do so

within the first 36 hours, not weeks later as indicated by defendant’s affidavit. He

acknowledged defendant’s March 1993 surgery but testified that the medical records did not

reflect the number of infections and hospitalizations defendant described in the affidavit.

¶ 123 13. The State’s Testimony to Rebut Ivan Smith

¶ 124 The State called additional witnesses to rebut Ivan Smith’s testimony that he was abused

in Tennessee by Stehlik and O’Brien.

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¶ 125 The Hon. Charles Burns testified that in 1991 he was an assistant’s state’s attorney when

he was contacted regarding Ivan Smith in connection with a homicide. He went to Tennessee

with O’Brien, Stehlik, assistant state’s attorney Michael Smith, and a court reporter. Burns

spoke to Ivan Smith in the presence of Stehlik and O’Brien. Ivan Smith agreed to give a

statement after being read his Miranda rights. Burns recalled that Ivan Smith did not appear to

be in pain or complain that he was harmed. Burns never saw O’Brien or Stehlik harm Ivan

Smith.

¶ 126 Michael Smith testified that he was an assistant state’s attorney when he traveled to

Tennessee, along with Stehlik, O’Brien, and Burns. ASA Smith was not present for Ivan

Smith’s initial questioning and did not take Ivan’s statement. ASA Smith said Ivan Smith’s

demeanor was relaxed and that he did not complain about how he had been treated. However,

ASA Smith acknowledged he did not know what happened during the detectives’ questioning

of Ivan.

¶ 127 14. Defendant’s Posthearing Submission

¶ 128 Defendant’s posthearing brief argued that, in light of the new evidence, defendant was

entitled to new trials in both the Miles and Miggins cases and that the State should be prohibited

from using his custodial statements. Defendant argued that he had met his burden to show that

the new pattern and practice evidence impeached the officers’ credibility to the extent “a

suppression motion would have reached a different result.” Defendant also noted that “it is the

State who, in the suppression context, bears the burden of showing voluntariness.”

¶ 129 In arguing the detectives’ credibility was impeached by the pattern and practice evidence,

defendant contended that the prior allegations were relevant because they involved the same

detectives who interrogated defendant and involved allegations of physical abuse between the

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late 1980s and mid-1990s. Defendant noted that the convictions of several of those accusers

were ultimately overturned. Defendant also argued that an adverse inference was warranted in

light of Halloran, O’Brien, and Boudreau’s invocation of the fifth amendment in prior

proceedings. Defendant elsewhere argued that his core testimony was consistent since the

January 1994 motion to suppress hearing, notwithstanding that he “did not know the identities

of all of the officers” when the motion to suppress was filed and notwithstanding any minor

discrepancies in his recollection of “the exact things that Detective Boudreau and Halloran did

and when they did them.”

¶ 130 J. The Trial Court’s Posthearing Decision

¶ 131 The trial court initially entered an order denying defendant relief on January 16, 2020. On

March 16, 2020, the court entered a 49-page amended order containing its posthearing

conclusions of law and facts, which is the focus of this appeal. 8 The written order contains a

number of discrete sections.

¶ 132 In the section titled “Legal Standard,” the court recognized that defendant’s initial burden

under the TIRC Act was not to prove his confession actually resulted from coercion but to

show that “newly discovered evidence would likely have altered the result of a suppression

hearing.” The court further recognized that, if the defendant met that initial burden, then the

burden “shifts to the State of proving the statement was voluntary.”

¶ 133 1. The Trial Court’s Findings of Fact

8 Defendant commenced this appeal on February 10, 2020, by filing a notice of appeal from the January 16, 2020, order. However, in light of the trial court’s amended order in March 2020, this court allowed defendant leave to file an amended notice of appeal that challenged the trial court’s amended order. At oral argument, defendant’s counsel confirmed that the March 2020 amended order is the focus of this appeal.

- 27 - No. 1-20-0462

¶ 134 The court proceeded to list its “Findings of Fact” over 147 numbered paragraphs. In so

doing, it consistently credited the State’s witnesses while finding defendant’s account

untruthful. With respect to the Miggins case, the court credited Halloran’s hearing testimony,

including his denials that he or Kill kicked or struck defendant. The court separately credited

Boudreau’s testimony that he did not interview defendant. The court also credited Brent’s

testimony that he advised defendant of his Miranda rights and that defendant had “no

complaints” about how he was treated by police. The court specifically found that defendant’s

claim that he told Brent he wanted an attorney was a “lie.”

¶ 135 The court further found that defendant elected to give a statement and that Brent wrote

down what defendant stated in Kill’s presence. The court found that there “were not multiple

detectives in the room” and that Kill “was not hovering over” defendant when he gave the

statement. The court also made findings that Kill did not tell Brent what to include in the

statement and that Brent reviewed the statement with defendant.

¶ 136 The court found “no credible evidence” that Kill, Boudreau, or Halloran punched, hit, or

kicked defendant in connection with the Miggins case. The court emphasized its finding that

the Miggins statement was voluntary, not coerced.

¶ 137 The court similarly found no abuse or coercion with respect to the Miles statement. The

court specifically found “no credible evidence” that defendant “was hung by handcuffs from

the top of a locker”, that he was forced to stay in a cold room, or that O’Brien or Stehlik struck

a phone book held to his side. The court credited Grossman’s testimony that he advised

defendant of his Miranda rights, that defendant did not ask for an attorney, and that defendant

said he was treated well by the police. The court also credited Dr. Schact’s testimony that

defendant’s UPJ obstruction was congenital and not caused by trauma.

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¶ 138 In separate subsection titled “George Anderson’s Judicial Admissions,” the court noted

that at trial in the Miggins case defendant agreed that he told Brent that he was treated well by

the police and was not threatened. The court emphasized that, when defendant was asked “So

you weren’t treated badly by the police,” he answered “No.”

¶ 139 2. The Trial Court’s Pattern and Practice Findings

¶ 140 The trial court’s decision made additional findings in which it discounted all of the

evidence that the accused detectives abused other individuals. The court rejected Ivan Smith’s

testimony about his interrogation in Tennessee, citing the State’s witness testimony and finding

“Ivan Smith was not physically abused by either Detective O’Brien or Detective Stehlik.”

¶ 141 With respect to the numerous other individuals who alleged abuse by the police officers

who interrogated defendant, the court determined that such evidence was either irrelevant, that

defendant had “waived” reliance on such evidence, or that there was insufficient evidence to

support the claims of abuse or coercion. The court found any other claimants’ allegations

against Boudreau were “irrelevant” because defendant testified at the hearing on his motion to

suppress that Boudreau never touched him. The trial court also disregarded any pattern and

practice evidence alleging misconduct by Halloran, because Halloran was not identified in

defendant’s motion to suppress.

¶ 142 The court further disregarded as irrelevant any claims of abuse that were deemed by the

Office of Professional Standards (OPS) to be unfounded or “not sustained.” The court also

found that defendant had “waived” reliance on any prior claimant’s accusations, if defense

counsel had not specifically asked the accused officer about the specific claim during the

evidentiary hearing.

¶ 143 3. The Trial Court’s “Conclusions of Law”

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¶ 144 In the portion of the order entitled “Conclusions of Law,” the court did not state whether

defendant had met his initial burden (previously mentioned in its “Legal Standard” section) to

show that the new evidence would likely have resulted in suppression. Instead, the court

indicated that its only role was to determine whether defendant’s statements were coerced:

“The issue for determination at a hearing convened pursuant to 775

ILCS 40 is whether petitioner has met his burden of proving by a

preponderance of evidence that his confession was a result of

physical coercion or torture. This is the sole issue to be determined

by the Court at the hearing.”

¶ 145 The court proceeded to find “no evidence of medical injury” consistent with defendant’s

claims of abuse. The court reiterated its findings that defendant had not asked for an attorney,

that he read the statements before he signed them, and that he did not complain to Brent or

Grossman about any abuse.

¶ 146 With respect to the Miggins case, the court again emphasized that defendant testified at

trial “that he was treated well by the police,” finding this testimony was a judicial admission

and “demonstrated that his statements were voluntarily given and that his statements were not

coerced.” (Emphasis in original.) With respect to the Miles case, the court found that

defendant’s claims that he was “handcuffed to the top of a locker for several hours” or “forced

to stay in a freezing room” were “not credible,” citing the detectives’ contrary testimony.

¶ 147 Elsewhere in the “Conclusions of Law,” the court stated that defendant “did not submit any

pattern and practice evidence relevant under People v. Patterson,

(2000),” with

respect to either the Miggins or Miles case. The court then stated that “the uncorroborated

- 30 - No. 1-20-0462

testimony of petitioner, with his later-added embellishing details, does not meet his burden of

proof in face of the volume and quality of the evidence standing in opposition.”

¶ 148 4. The Trial Court’s Conclusion

¶ 149 In its conclusion, the court emphasized its view that defendant’s testimony was not credible

and that he “attempted to deliberately tailor his testimony” to obtain relief under the TIRC Act.

The court compared defendant to a “Ghost Rider” who falsely claims to have been a passenger

in a bus accident to fraudulently seek compensation, remarking that he “falsely claimed to have

ridden on the Burge[ ] torture bus.” The court concluded that defendant “has not shown that he

was abused either physically or psychologically” by police and thus “failed to meet his burden

by a preponderance of the evidence.” Accordingly, the court denied him any relief.

¶ 150 II. ANALYSIS

¶ 151 On appeal, defendant claims that he is entitled to suppression of the statements and a new

trial due to a number of errors by the trial court. 9 He primarily claims that the trial court applied

the wrong legal standard by engaging in a “personal, subjective adjudication of the evidence”

rather than evaluating whether the new evidence would be likely to change the result at a new

trial or suppression hearing. That is, he suggests the trial court improperly denied him relief

because it “personally disbelieved” defendant’s testimony and supporting evidence.

¶ 152 Defendant further argues the trial court erred in deeming all of the pattern and practice

evidence irrelevant. Defendant urges that the trial court disregarded such evidence for a

number of improper reasons.

9 While this appeal was pending, we granted the motion of “Persons Concerned About the Illinois Criminal Justice System” to file a brief amicus curiae pursuant to Illinois Supreme Court Rule 345(a) (eff. Sept. 20, 2010).

- 31 - No. 1-20-0462

¶ 153 Defendant additionally asserts that the trial court erred by not drawing an adverse inference

from detectives’ invocation of the fifth amendment in prior proceedings, that the court ignored

medical evidence that corroborated his claims, and that the court erroneously found that a

“judicial admission” arose from his trial testimony in the Miggins case. Finally, defendant

asserts the trial court “failed to adjudicate” the claim that he was denied his right to counsel.

¶ 154 For the reasons below, we agree that the court applied the wrong legal standard when it

focused on whether it believed defendant’s torture allegations, rather than deciding the proper

initial inquiry, i.e., whether the outcome of the suppression hearing would likely have been

different, in light of the new pattern and practice evidence. The court also erred in ruling that

none of the voluminous pattern and practice evidence was relevant. To the contrary, we find

this new evidence was relevant and satisfied defendant’s initial burden to show that it would

likely have resulted in suppression of his statements.

¶ 155 Moreover, we recognize that the evidentiary hearing in this case functioned as a

“simultaneous hearing” on defendant’s request to suppress the statements. See People v.

Wilson,

. Thus, once defendant met his initial burden to show

a likelihood of suppression, the burden shifted to the State to prove that the statements were,

in fact, voluntary. See id. ¶ 54. We recognize that, with respect to this suppression inquiry, the

court was permitted to make factual findings, including as to credibility. Nonetheless, the trial

court’s factual findings in favor of the State were against the manifest weight of the evidence.

That is, the State could not meet its burden to show voluntariness. Accordingly, defendant is

entitled to suppression of the statements and new trials.

¶ 156 A.The TIRC Act and Governing Standard at an Evidentiary Hearing

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¶ 157 The TIRC Act “establishes an extraordinary procedure to investigate and determine factual

claims of torture.” 775 ILCS 40/10 (West 2018). The TIRC consists of eight voting members

(id. § 20(a)), who conduct inquiries into claims of torture and make “recommendations to the

trial court at the completion of each inquiry” (id. § 35(5)). After hearing evidence, if a majority

of TIRC members “conclude by a preponderance of the evidence that there is sufficient

evidence of torture to merit judicial review,” the case is referred to the chief judge of the circuit

court of Cook County. Id. § 45(c). Following a TIRC referral, the circuit court is to conduct an

evidentiary hearing, at which it “may receive proof by affidavits, depositions, oral testimony,

or other evidence.” Id. § 50(a).

¶ 158 The TIRC Act broadly describes the relief that may be granted after such hearing:

“[I]f the court finds in favor of the petitioner, it shall enter an

appropriate order with respect to the judgment or sentence in the

former proceedings and such supplementary orders as to

rearraignment, retrial, custody, bail or discharge, or for such relief

as may be granted under a petition for a certificate of innocence, as

may be necessary and proper.” Id.

We have interpreted this to mean the circuit court “has a variety of remedies at its disposal,”

including ordering suppression of a statement instead of merely remanding for a new

suppression hearing. Wilson,

. As explained in Wilson, the

TIRC Act’s legislative history indicated it was “intended to definitively and expeditiously

decide whether a petitioner was tortured and provide appropriate relief” and that “these goals,

as well as judicial economy, are furthered by permitting the trial court to simultaneously

- 33 - No. 1-20-0462

consider a petitioner’s claim under the [TIRC] Act and his request to suppress his statement.”

Id. ¶ 50.

¶ 159 The record in this case reflects that the evidentiary hearing in this case functioned as a

simultaneous suppression hearing. Indeed, defendant explicitly sought outright suppression of

the custodial statements, rather merely seeking a new suppression hearing. Moreover, as the

parties have acknowledged, the evidence considered at the evidentiary hearing is the very same

evidence that would be considered upon any new suppression hearing. Our analysis is thus

guided by Wilson, which set forth the “appropriate burden to be applied at a simultaneous

hearing.” Id.

¶ 160 Wilson recognized that an evidentiary hearing following a TIRC disposition is analogous

to a third-stage evidentiary hearing under the Post-Conviction Hearing Act. Id. ¶ 51 (citing

People v. Christian,

).

¶ 161 Wilson then explained that, while a TIRC claimant seeking suppression at the evidentiary

hearing “has the opportunity to demonstrate by a preponderance of the evidence that his

confession resulted from coercion,” “a petitioner’s initial burden does not require him to prove

that his confession actually resulted from coercion.”

This follows from the similarity

between judicial review of a TIRC claim and a hearing under the Post-Conviction Hearing Act:

“[E]ven an evidentiary hearing under the Post-Conviction Act is not

intended to decide the ultimate issue of whether the petitioner’s

confession was coerced. See People v. Whirl,

. Instead, the petitioner has the burden of showing only

that newly discovered evidence would likely have altered the result

of a suppression hearing. See id.; see also People v. Galvan, 2019

- 34 - No. 1-20-0462

IL App (1st) 170150, ¶ 74 (finding the trial court’s denial of

postconviction relief was against the manifest weight of the

evidence where new evidence of abusive tactics that an officer used

in interrogating others would likely have led to a different outcome

at the suppression hearing).” (Emphasis in original.) Id. ¶ 52.

¶ 162 Accordingly, where a defendant merely requests that the circuit court conduct a TIRC

hearing to determine whether defendant is entitled to a new motion to suppress hearing, the

only inquiry is whether he can show the result would likely have been different with the new

evidence. See id. (“The legislature clearly did not create a new form of postconviction relief

with the intent that a petitioner satisfy a heavier burden than that imposed by the Post-

Conviction Act.”).

¶ 163 However, when a TIRC Act petitioner additionally seeks outright suppression of the

statement, the TIRC Act evidentiary hearing simultaneously functions as a suppression

hearing. See id. ¶ 50. Under these circumstances, the usual standard for a motion to suppress

also applies. See id. ¶¶ 52-53. “At a motion to suppress hearing, ‘the State bears the burden of

proving the confession was voluntary by a preponderance of the evidence.’ ” Id. ¶ 53 (quoting

People v. Slater,

(2008)). If the State does so, the burden shifts to defendant

to prove that the confession was involuntary.

(citing People v. Richardson,

(2009))). If the defendant meets that burden, the burden reverts to the State to prove

voluntariness. Richardson,

.

¶ 164 Wilson thus instructs as follows regarding the parties’ respective burdens at a TIRC Act

evidentiary hearing where, as here, defendant simultaneously seeks outright suppression:

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“[A]fter a petitioner satisfies his initial burden of showing that new

evidence would likely have resulted in the suppression of his

confession, the State has the burden of proving petitioner’s

statement was voluntary, just as it would at a motion to suppress

hearing. The burden shifting provisions involved in a motion to

suppress likewise apply.” Wilson,

.

¶ 165 B. The Trial Court Applied the Wrong Legal Standard

¶ 166 Keeping in mind the foregoing, we turn to defendant’s primary argument—that the trial

court applied the wrong legal standard in denying him relief. Defendant claims the court

engaged in a “personal, subjective” evaluation of the evidence, rather than assessing the proper

question: whether the new evidence would be likely to change the result at a new trial or

suppression hearing. The State maintains that the trial court “acted exactly as precedent

dictated it should” and that a trial court’s analysis in such cases is “necessarily dependent” on

credibility determinations. At oral argument, the State maintained that the trial court did apply

the correct standard and concluded defendant did not meet his burden to show that the new

evidence would likely have led to suppression. The State recognized that the court’s decision

included numerous witness credibility findings. However, the State argued that such

factfinding was merely an “extra step” that, while perhaps unnecessary, did not constitute error.

¶ 167 We recognize there is a rebuttable presumption that the court applied the law correctly. See

People v. Hernandez,

. Nonetheless, after careful review of the

trial court’s lengthy decision, we agree with the defendant that the trial court erred.

Specifically, the decision indicated the court did not consider whether defendant met his initial

burden, as it did not decide whether “newly discovered evidence would likely have altered the

- 36 - No. 1-20-0462

result of a suppression hearing.” (Emphasis in original.) Wilson,

. Rather than attempt to analyze the new evidence under this proper initial inquiry, the

court skipped this step and reframed the standard to indicate that its sole role was to decide

whether defendant proved that he was, in fact, abused by police. That is, the court proceeded

directly to the question of suppression and related factual findings, without first addressing the

“initial burden” described in Wilson. Id. ¶ 54.

¶ 168 In this regard, the posthearing decision was internally inconsistent as to the governing

inquiries that the court needed to resolve. In the “Legal Standard” portion of the decision, the

court correctly noted that the defendant was not required to prove that his statements resulted

from coercion in order to obtain relief under the TIRC Act. Indeed, the trial court accurately

cited Wilson and stated: “If the petitioner satisfies his initial burden of showing that new

evidence would likely have resulted in the suppression of his confession, the burden shifts to

the State of proving the statement voluntary.”

¶ 169 Nevertheless, the remainder of the decision gave no indication that the trial court ever

sought to analyze the evidence under the proper initial inquiry—whether defendant’s new

evidence met his initial burden to show a likelihood of suppression. Id. Instead, the court

focused on whether it believed defendant’s factual allegations. In its “Conclusions of Law”

section, the court said its role was “to decide whether petitioner has proved that his confession

was the result of torture.” In the following paragraph, the court reiterated: “The issue for

determination at a hearing convened pursuant to 775 ILCS 40 is whether petitioner has met his

burden of proving by a preponderance of evidence that his confession was a result of physical

coercion or torture. This is the sole issue to be determined by the Court at the hearing.”

(Emphasis added.) These assertions misstated the law, insofar as they suggested that defendant

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could not obtain any relief under the TIRC Act unless he proved that he was, in fact, abused.

Elsewhere in the decision, the court repeatedly indicated that the only relevant question was

whether defendant proved that he was tortured.

¶ 170 To be clear, we recognize that, to the extent defendant sought outright suppression, the

court ultimately needed to make factual findings, under the “burden shifting provisions

involved in a motion to suppress.” Id. The problem with the trial court’s analysis was that it

entirely skipped analysis of the “initial burden,” which did not require defendant to prove the

ultimate question of whether he was tortured. See id. That is, the court failed to address the

threshold question of whether the new pattern and practice evidence “would likely have

resulted in the suppression of the confession.” Id. Instead, the court erroneously indicated that

the sole relevant question was whether defendant proved he was tortured. Thus, while the court

initially recited the proper inquiries under Wilson, its subsequent statements demonstrate that

it failed to assess the proper initial burden and proceeded directly to its assessment of

defendant’s credibility.

¶ 171 The question then becomes whether the trial court’s failure to address the proper initial

inquiry requires reversal, or if we must further assess the propriety of the court’s additional

findings with respect to the pattern and practice evidence. We believe the latter approach is

correct, given our decision in People v. Whirl,

, which addressed a

similar situation.

¶ 172 In Whirl, the trial court conducted a combined hearing under the Post-Conviction Hearing

Act and the TIRC Act pertaining to Whirl’s claim that a police officer, Pienta, coerced his

confession. Id. ¶ 52. Whirl testified as to how Pienta forced him to confess in 1990. Id. ¶ 53-

57. Whirl also called two witnesses who testified they were arrested and tortured, although

- 38 - No. 1-20-0462

they did not specify whether Pienta was merely present or if he physically tortured them. Id.

¶ 67. In denying relief, the trial court in Whirl incorrectly stated that “the central issue in the

case was whether ‘Pienta in fact tortured Mr. Whirl and coerced his confession.’ ” Id. ¶ 81.

Similar to the instant case, the trial court stated “ ‘that [Whirl] needed to be credible in order

to sustain his burden,’ ” found he was not credible, and thus concluded he “ ‘did not establish

that he was abused or tortured by Detective Pienta.’ ” Id.

¶ 173 On appeal, we recognized that “the trial court appears to have used the incorrect standard,”

as it was “not the trial court’s role to determine whether Whirl’s confession was, in fact,

coerced.” Id. ¶ 82. Nevertheless, we reasoned: “because the trial court also made findings

related to the new evidence, and its comments regarding credibility could also be interpreted

to relate to those findings, we will examine all of the trial court’s findings in detail.” Id.

¶ 174 Our decision in Whirl discussed the trial court’s findings related to Whirl’s credibility

before discussing the “new evidence,” finding it was sufficient to establish a pattern and

practice of torture. Id. ¶¶ 101-03. Whirl proceeded to conclude that the new evidence was

“conclusive enough that the outcome of the suppression hearing likely would have been

different if Pienta had been subject to impeachment” with evidence that he abused other

suspects. Id. ¶ 110. This court concluded that Whirl was entitled to a new suppression hearing.

Id. ¶ 113. 10

¶ 175 Whirl is instructive regarding the proper course for our analysis in this case. Whirl confirms

that it is error for the court to focus on defendant’s credibility, instead of assessing whether the

We determined that Whirl was “entitled to a new suppression hearing under the Postconviction 10

Act” and thus “need not address Whirl’s claim for the identical relief under the [TIRC] Act.” Whirl,

.

- 39 - No. 1-20-0462

new evidence would likely have altered the result of the suppression hearing. See

(“the

credibility findings made by the court were not relevant to the issue of whether Pienta’s

credibility at the suppression hearing might have been impeached as a result of the new

evidence”). Nevertheless, Whirl indicates that this error does not end our review where, as

here, the trial court also made specific findings regarding the new evidence offered to show a

“pattern and practice” of abuse and coercion. That is, we still need to evaluate whether

defendant met his initial burden to show the new evidence would be likely to have led to a

different outcome at a suppression hearing.

¶ 176 C. The Trial Court Erred in Finding All Pattern and Practice Evidence Irrelevant

¶ 177 In this case, the trial court disregarded all of the pattern and practice evidence as irrelevant,

including Ivan Smith’s and Reeves’s hearing testimony and the voluminous documentary

exhibits. We agree with defendant that the court abused its discretion in disregarding this

evidence, which was certainly relevant to show a pattern of abuse and coercion by the accused

detectives. Moreover, we find that this evidence met defendant’s initial burden to show that it

would likely have resulted in suppression.

¶ 178 “It is within the discretion of the circuit court to decide whether evidence is relevant and

admissible, and a reviewing court will not disturb the circuit court’s decision absent a clear

abuse of that discretion.” Peach v. McGovern,

. An abuse of discretion

occurs “where no reasonable person would take the position adopted by the circuit court.”

¶ 179 “Evidence is relevant if it has any tendency to make the existence of a fact that is of

consequence to the determination of the action more or less probable than it would be without

the evidence.” People v. Patterson,

(2000). In assessing whether prior

allegations of police abuse are relevant to a postconviction claim of coercion, Patterson

- 40 - No. 1-20-0462

instructs that “relevancy is a determination to be made by the trial court after a consideration

of, inter alia, the defendant’s allegations of torture and their similarity to the prior allegations.”

. Prior allegations of police abuse may be relevant when they involve the same

officers, involve similar methods of torture, and occur near the time of the current allegations.

at 115 (citing Wilson v. City of Chicago,

(7th Cir. 1993)).

¶ 180 Our supreme court recently described the inquiry as follows:

“[S]imilarity is a critical factor to consider when determining

whether new evidence of police misconduct in other cases

establishes a pattern and practice of certain behavior. However, the

test is not one of exact or perfect identity. Rather, the critical inquiry

is simply whether there is sufficient similarity between the

misconduct at issue in the present case and the misconduct shown in

other cases, such that it may fairly be said the officers were acting

in conformity with a pattern and practice of behavior.” People v.

Jackson,

(citing Patterson,

-

45).

¶ 181 Recent decisions by this court illustrate that prior incidents of abuse have greater relevance

where the manner of alleged abuse is similar. See People v. Plummer,

(reversing second-stage dismissal of successive postconviction petition where

new evidence showed “pattern of systemic abuse by Detectives Kill and Boudreau,” where the

cited prior incidents were relevant “not only because the abuse was similar *** but they were

also perpetrated by some of the same officers from the same police stations and were incredibly

close in time to one another”); see also People v. Tyler,

, ¶ 190

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(defendant made substantial showing of constitutional violation where “the type of abuse in

many of the cases cited by defendant is similar to the type of beating that defendant claimed

he received from the detectives”).

¶ 182 Here, the trial court’s posthearing decision cited various reasons for finding that none of

the pattern and practice evidence was relevant. Yet, the decision contained virtually no

discussion of whether the numerous prior allegations were factually similar to defendant’s

alleged abuse. 11 The trial court apparently conflated the question of whether prior allegations

were relevant with whether it found they were credible, disregarding much of the pattern and

practice evidence based on its credibility determinations. Likewise, the trial court disregarded

any complaints that were not sustained by OPS. The court also found defendant “waived” any

reliance on pattern and practice allegations that the officers were not specifically asked about

at the evidentiary hearing. These rulings constituted an abuse of discretion.

¶ 183 D. The Court’s Flawed Analysis of Ivan Smith’s and Reeves’s Testimony

¶ 184 The court’s flawed approach is exemplified by its discussion of Ivan Smith’s pattern and

practice testimony. There can be no doubt that Ivan Smith’s testimony was relevant, as he

described two of the same detectives harming him in nearly the exact same manner that

defendant alleged. Ivan Smith testified that in November 1991 (only a few months after

defendant’s arrest), Stehlik and O’Brien took turns holding a phonebook on him and striking

the book with a stick. Clearly, this testimony was similar enough to be relevant under the

standard in Jackson,

. Yet, the trial court simply did not believe Ivan

11 The court did state that the “settlement or resolution or disposition of the Anthony Jakes case” was irrelevant because, “Jakes was a minor and alleges action taken by officer dissimilar to the case at bar.” Yet at no other point did the court discuss whether there was similarity between any of the prior allegations of abuse and defendant’s allegations.

- 42 - No. 1-20-0462

Smith, stating: “Contrary to Ivan Smith’s testimony, Ivan Smith was not physically abused by

either Detective O’Brien or Detective Stehlik.” Thus, rather than assess the relevance of Ivan

Smith’s testimony, the court made a factual finding that Ivan Smith’s claim was incredible.

This was improper.

¶ 185 We have similar concerns with the trial court’s stated reason for disregarding Martin

Reeves’s testimony. The court emphasized that Reeves did not testify that Kill physically

abused him, but only that Kill stood by while other officers abused Reeves. The court then

indicated that it found Reeves’s testimony irrelevant because it did not believe defendant’s

testimony that Kill abused him:

“Martin Reeves is not a pattern and practice witness for petitioner

because Reeves did not accuse Michael Kill of physically abusing

him in any way. To the extent that he testified that Michael Kill

stood by while he was abused by other police officers, there is no

credible testimony that Michael Kill was present when George

Anderson claims he was abused.” (Emphasis added.)

Thus, the court apparently found Reeves’s testimony irrelevant simply because the court

disbelieved defendant. 12

¶ 186 Although Reeves did not accuse Kill of actually beating him, that did not render Reeves’s

testimony irrelevant; it was enough that Kill participated in Reeves’s coercion. See People v.

12 We recognize the possibility that this sentence in the trial court’s decision meant to refer to Reeves instead of “George Anderson,” i.e., that the court concluded there was no credible testimony that Kill was present when Reeves claims he was abused. Yet that line of reasoning would also be flawed, because it would reflect that the court decided Reeves was not credible instead of assessing whether his allegations were similar enough to be relevant as pattern and practice evidence.

- 43 - No. 1-20-0462

Harris,

, ¶ 50 (in deciding whether pattern and practice evidence

would have affected the outcome of the suppression hearing, the court considers “whether any

of the officers who interrogated defendant may have participated in systemic interrogation

abuse” (citing Patterson,

)). Indeed, evidence of an officer’s “silent

acceptance” of torture committed by other officers is still relevant. Whirl,

(“even if the new evidence established only that Pienta stood by and did nothing

while other officers committed acts of torture and abuse, silent acceptance is still relevant to

the issue of whether Pienta’s credibility may have been impeached as a result of this

evidence”). Here, Reeves testified that Kill worked with other officers who threatened him and

physically coerced his false confession. Indeed, Reeves testified that Kill handed him a

statement and told him that if he signed it, he could eat and go home. This is not dissimilar

from defendant’s testimony that Kill pressured him into signing a false statement. Reeves’s

testimony was clearly relevant to showing Kill’s pattern of participation in systematic abuse.

The court abused its discretion in declining to find either Ivan Smith’s or Reeves’s testimony

relevant.

¶ 187 E. The Court Erred in Disregarding Claims That Were Not Sustained by OPS

¶ 188 The trial court also abused its discretion when it relied on OPS determinations to disregard

certain complaints of abuse as irrelevant. The trial court noted that numerous complaints were

deemed unfounded or “not sustained” by OPS. These included complaints against O’Brien by

Samhan Ali, Glen Dixon, Maurice Lane, Luis Martinez, David Torrentt Jr., and Gregory

Logan; Bobby Spencer’s complaint against Kill; Andre Altman and Eric Jackson’s complaint

against O’Brien and Stehlik; Emmett White’s complaint against O’Brien and Halloran; and

Marcus and Joseph Jackson’s complaint against Halloran and Boudreau. The trial court

- 44 - No. 1-20-0462

similarly noted that the Independent Police Review Authority (IPRA) did not sustain Stanley

Gardner’s complaint that O’Brien, Halloran, and other officers beat Gardner and left him in a

cold room.

¶ 189 Whether a prior allegation was deemed unfounded by OPS does not indicate whether it has

“sufficient similarity” to defendant’s alleged abuse, which is the pertinent relevance inquiry.

Jackson,

(citing Patterson,

). We are aware of no

authority that allows the trial court to deem prior allegations irrelevant on this basis. In fact,

our court has relied on such pattern and practice evidence. See Tyler,

(finding defendant was entitled to third-stage evidentiary hearing on claim of coerced

confession under Post-Conviction Hearing Act). The Tyler decision summarized many prior

claims of abuse, noting that three of those claimants’ cases (those of Eric Johnson, Sandy

Curtis, and Emmett Smith) were closed by OPS. See id. ¶¶ 67, 70-71. Nevertheless, Tyler

subsequently referred to those three claimants in discussing the evidence of systemic abuse

that, if presented at trial, could have reasonably undermined the detectives’ credibility. Id.

¶¶ 170, 172-73, 186.

¶ 190 We also find persuasive a recent unpublished decision regarding an evidentiary hearing on

a TIRC Act claim alleging abuse by Boudreau, Halloran, and O’Brien. People v. Smith,

. Similar to this case, the Smith defendant submitted numerous exhibits

relating to allegations of abuse by the same officers.

. The trial court found the evidence

unpersuasive because, inter alia, “many of the claims included in defendant’s evidence

resulted in losing efforts for those claimants, or were simply civil complaints that had (at least

as of yet) not resulted in a finding of abuse by Boudreau, Halloran, or O’Brien.”

.

¶ 191 This court in Smith held that the trial court “improperly weighed” such evidence:

- 45 - No. 1-20-0462

“Generally, the court discounted much of defendant’s evidence

because none of the defendants in cases presented achieved a

specific finding from a court on the merits that they were abused by

the subject detectives. However, neither the circuit court nor the

State has cited to any authority that a previous judicial determination

of torture is required. We reject the existence of such a requirement,

as it does not appear in the language of the [TIRC] Act and would

make it exceedingly difficult for a defendant to obtain relief. This

result would be impossible to square with the Act’s extraordinary

remedial purposes.”

.

Similarly, we see no reason why the relevance of a prior allegation depends on any OPS

determination.

¶ 192 Although the State insists the trial court properly considered whether OPS sustained prior

allegations of abuse, it does not cite any TIRC Act decisions in support. The State refers us to

People v. Porter-Boens,

, which affirmed a ruling that quashed a

defendant’s subpoena for prior complaints against the arresting officer. The State points out

Porter-Boens’s statement: “The trial court may properly exclude evidence of prior allegations

of misconduct involving different officers if the prior allegation is factually dissimilar to the

officer’s conduct in the pending case, and if the officer did not receive discipline from his

department.” (Emphasis added.) Id. ¶ 17. The State also refers to the decision’s statement that

allegations of misconduct, “without evidence the officer was disciplined, are not admissible as

impeachment.” Id. ¶ 20. However, Porter-Boens is not a TIRC action and did not involve any

claim of a coerced confession. In any event, that decision makes clear that the primary inquiry

- 46 - No. 1-20-0462

in deciding the relevance of prior allegations is whether they are “factually dissimilar to the

officer’s conduct in the pending case.” Id. ¶ 17. Clearly, the similarity of past allegations of

police misconduct does not depend on whether the officer was ever disciplined.

¶ 193 In short, the pertinent relevance inquiry is one of similarity, which did not depend on how

OPS handled a prior complaint. Thus, the court erred insofar as it deemed pattern and practice

evidence irrelevant based on OPS’s treatment of past claims of police coercion.

¶ 194 F. The Trial Court Erred in Crediting Police Officer Denials to Determine That Prior

Claims of Abuse Were Irrelevant

¶ 195 For similar reasons, the trial court also erred to the extent it found prior claims of abuse

irrelevant because it believed the officers’ evidentiary hearing testimony denying the prior

instances of abuse. The court’s decision reflects that it consistently made credibility

determinations to find that the alleged abuse did not happen, in the course of finding the

claimant’s allegations irrelevant. Among other examples, the trial court:

(1) found “O’Brien did not abuse” either Tyrone Reyna or Oscar Gomez, citing

O’Brien’s denials in this proceeding;

(2) found a “lack of evidence” or “insufficient evidence” that Boudreau abused Jerry

Gillespie, Peter Williams, Harold Hill, or Joseph Jackson, citing Boudreau’s denials;

(3) found “John Halloran never physically abused Clayborn Smith,” citing Halloran’s

testimony in this hearing; and

(4) found “insufficient evidence that Detective James O’Brien kicked” Glen Dixon,

citing O’Brien’s denial that he kicked Dixon. 13

13 O’Brien acknowledged in his testimony that he “fought with” Dixon.

- 47 - No. 1-20-0462

In this manner, the trial court simply credited the officers’ testimony at this hearing whenever

an officer denied one of the allegations of abuse.

¶ 196 This was improper, at least insofar as the court made credibility findings to determine the

threshold question of whether the new evidence was relevant, whether defendant met his

“initial burden of showing that new evidence would likely have resulted in the suppression of

his confession.” Wilson,

. 14 The court apparently conflated the

question of whether prior allegations of abuse were relevant—which turns on their similarity—

with whether it found those prior allegations were credible, in light of the officers’

contradicting testimony. It is hardly surprising that the officers consistently denied abusing any

of the pattern and practice claimants, just as they denied abusing defendant. Yet such denials

do not impact whether the other claims of abuse were relevant, i.e., “whether there is sufficient

similarity between the misconduct at issue in the present case and the misconduct shown in

other cases.” Jackson,

.

¶ 197 G. Pattern and Practice Evidence Was Not “Waived” Merely Because Officers Were

Not Asked About Specific Allegations

¶ 198 We also agree with defendant that the trial court erred when it found that defendant

“waived” reliance on prior allegations of abuse as pattern and practice evidence, if defendant’s

counsel did not specifically ask the officer about the specific allegations at the evidentiary

hearing. For example, the court found that, because defendant’s counsel “did not question

14 We recognize that credibility findings would be appropriate, to the extent that the court was determining the question of whether suppression was warranted. However, the court’s decision indicates that it deemed pattern and practice evidence irrelevant based on whether it believed the past allegations.

- 48 - No. 1-20-0462

Detective James O’Brien about any allegations of coercion made by Dan Young,” “any attempt

to use Young’s testimony as pattern and practice with respect to O’Brien has been waived.”

¶ 199 The State’s brief contends that the failure to ask an officer about a past allegation of abuse

is a “perfectly valid’ reason to find such evidence irrelevant, yet it does not cite any precedent

for this point. Although we are not aware of a decision directly addressing this question, we

agree with defendant. The relevance of evidence of prior alleged incidents of abuse depends

on their similarity to defendant’s allegations. That inquiry is not contingent on whether the

officers were specifically asked about such prior claims at the evidentiary hearing. In any event,

it is hard to imagine a scenario in which an officer asked about such past allegations would

admit to the prior abuse. That is, just as the trial court could not disregard evidence of prior

abuses merely because the officers denied it, such evidence could not be disregarded merely

because officers were not asked about it at the evidentiary hearing. The trial court’s ruling that

defendant “waived” such evidence was an abuse of discretion.

¶ 200 H. The Trial Court Erred in Disregarding Any Prior Allegations Against Halloran

¶ 201 We also agree with the defendant that the trial court erred when it indicated it would

disregard any pattern and practice evidence against Halloran, on the ground that defendant’s

original motion to suppress did not identify Halloran as one of the officers who abused him.

¶ 202 We acknowledge that the motion to suppress did not name Halloran. However, it alleged

that an unnamed officer, together with Kill, struck defendant in the course of coercing his

confession in the Miggins case. Significantly, there is no dispute that Halloran was, in fact,

working with Kill to interrogate defendant on the date in question. At the hearing on the motion

to suppress, Kill testified that he and Halloran interviewed defendant. And at the post-TIRC

- 49 - No. 1-20-0462

referral evidentiary hearing, Halloran acknowledged that he handcuffed defendant to a ring on

a wall before interviewing him with Kill.

¶ 203 Although defendant apparently did not know or recall Halloran’s name when the motion

to suppress was drafted and argued in the early 1990s, that is hardly surprising. See People v.

Gibson,

(Recognizing that “maybe [defendant] was never

sure, to begin with, exactly who threw which punch, slap, or kick in what order. It does not

strike us [as] implausible that someone experiencing a stressful encounter would struggle to

keep those kinds of facts straight, not immediately afterward and certainly not decades later”).

Moreover, defendant has consistently alleged for decades that an officer working with Kill

struck him in the course of interrogating him about the Miggins shooting. And it has now been

established that Halloran helped interrogate defendant on the night in question. 15 The court

abused its discretion in disregarding past claims against Halloran merely because he was not

explicitly named in the initial motion to suppress.

¶ 204 I. The Trial Court Erred in Disregarding Any Prior Allegations Against Boudreau Based

on Defendant’s Motion to Suppress Testimony

¶ 205 We similarly agree with defendant that the court erred in disregarding any evidence of past

abuse allegations against Boudreau. The court indicated its belief that such evidence was

irrelevant because defendant testified at the 1994 motion to suppress hearing that Boudreau

did not hit him. Again, it would not be surprising if defendant did not have a clear

15

- Moreover, we note there are now many documented complaints of Halloran abusing detainees within the same time period. See Smith,

(noting the “sheer number of allegations” against Halloran, Boudreau, and O’Brien, including that “at least eight defendants were later exonerated, acquitted, awarded a certificate of innocence, or had their charges dropped even though some combination of Boudreau, Halloran, or O’Brien allegedly extracted a confession from them using torture”).

- 50 - No. 1-20-0462

understanding at that time as to which officer committed each specific act. See

In any event,

defendant accused Boudreau of striking him in his TIRC affidavit and his subsequent

evidentiary hearing testimony. 16 And there is no factual dispute that Boudreau was working

with Kill and Halloran on August 21, 1992. Simply put, defendant’s TIRC claim accused

Boudreau of working with Kill and Halloran to coerce defendant’s confession. In turn, prior

allegations that Boudreau participated in similar coercion are relevant to show a pattern of such

conduct. See Tyler,

(“Since the vast majority of the cases

presented by defendant involve allegations of police misconduct by two or more detectives, it

is crucial to consider the claims of a systemic pattern of abuse in the context of several officers

working together to obtain a false confession in the case at bar.”); see also People v. Galvan,

, ¶ 68 (in assessing pattern and practice evidence, “the questions are

(1) whether any of the officers who interrogated petitioner may have participated in systematic

and methodical interrogation abuse and (2) whether those officers’ credibility at petitioner’s

suppression hearing or at trial might have been impeached as a result”). Accordingly, the court

erred in disregarding the ample pattern and practice evidence implicating Boudreau.

¶ 206 In sum, the various reasons given by the trial court to disregard pattern and practice

evidence were improper. Accordingly, the court abused its discretion when it found there was

no relevant pattern and practice evidence.

¶ 207 Having concluded that the court erred in disregarding the pattern and practice evidence, we

must determine whether that evidence “would likely have resulted in the suppression of

Even if Boudreau did not actually strike defendant but merely acquiesced while other officers 16

abused him, evidence regarding Boudreau’s prior conduct would still be relevant. As previously mentioned, even an officer’s “silent acceptance” of torture committed by other officers is still relevant. Whirl,

.

- 51 - No. 1-20-0462

[defendant’s] confession” in order to meet defendant’s initial burden to obtain relief. Wilson,

. Before we do so, however, we briefly address the State’s

arguments that defendant was independently barred from relief due to (1) his plea in the Miles

case or (2) his prior testimony in connection with the Miggins case. Neither contention has

merit.

¶ 208 J. Defendant’s Plea in the Miles Case Did Not Waive Relief Under the TIRC Act

¶ 209 First, in its brief, the State contended that defendant’s guilty plea in the Miles case

“waived” his claim for postconviction relief under the TIRC Act, citing case law holding that

a voluntary guilty plea waives all nonjurisdictional errors. See, e.g., People v. Anderson,

(2006) (finding waiver of police coercion claim in successive

postconviction petition); People v. Peeples,

(1993) (guilty plea underlying

prior convictions barred defendant from challenging the State’s use of his confession to those

prior crimes as aggravating evidence at his sentencing hearing).

¶ 210 At oral argument, however, the State conceded that this argument is unavailing in light of

our decision in People v. Johnson,

, in which we held that Jerome

Johnson’s plea in the Miles case did not waive his TIRC Act claim. We emphasized that waiver

of a statutory right must be “ ‘voluntary, knowing, and intelligent’ ” and with a “ ‘full

awareness of both the nature of the right being abandoned and the consequences of the decision

to abandon it.’ ”

¶ 89 (quoting People v. Lesley,

). We reasoned

that Johnson “could not possibly have had a ‘full awareness’ that he was abandoning any right

under the TIRC Act when he pleaded guilty in 1992, for the simple reason that the TIRC Act

was not yet enacted at that time.”

Our decision in Johnson applies here with equal force.

As the TIRC Act was not yet in effect at the time of defendant’s plea in the Miles case, that

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plea “could not have constituted ‘an intentional relinquishment or abandonment of a known

right’ to seek relief under the TIRC Act.”

¶ 99 (quoting Lesley,

).

¶ 211 K. Defendant’s Prior Testimony Was Not A “Judicial Admission”

¶ 212 We next address the State’s contention that defendant made “judicial admissions” in prior

testimony concerning the Miggins case that preclude him from obtaining relief. The State avers

there are two such instances. First, the State emphasizes defendant’s cross-examination in the

Miggins case, in which he gave the following one-word responses to the State’s questions:

“Q. Now, let me ask you at the end of that statement *** you told

the state’s attorney in there you had been treated well by the police

and the assistant state’s attorney, right?

A. Yes.

Q. That was true, right?

A. Yes.

Q. You also stated that you weren’t made any promises in return

for the statement nor you weren’t threatened in any way. You told

that to the state’s attorney?

A. Yes.

Q. That was true, right?

A. Yes.

Q. You told the state’s attorney you were offered both food and

water and they were, brought food from McDonald’s, right?

A. Yes.

Q. That was true?

- 53 - No. 1-20-0462

A. Some of it.

Q. Some of it.

A. Yes.

Q. You told the state’s attorney that you were free from the effects

of drugs and alcohol, that was true?

A. Yes.

Q. So you weren’t treated badly by the police?

A. No.”

¶ 213 The State posits that defendant’s responses constituted a “clear and unequivocal judicial

admission” that he was “treated well by the police.” The State suggests that, in light of this

testimony, defendant cannot now claim that he was mistreated.

¶ 214 Separately, the State argues that defendant’s testimony at the 1994 motion to suppress

hearing was a “clear and unequivocal admission that Detective Boudreau never hit him.” The

State refers to the following exchange:

“Q. Now, the other detective that testified here, Detective

Boudreau, Detective [Kill’s] partner, you testified that he also

kicked you and slapped you with his hands on your face?

A. No, ma’am.

Q. He never hit you?

A. No, ma’am.”

¶ 215 The State refers us to a number of civil, non-TIRC Act cases concerning judicial

admissions, primarily In re Estate of Rennick,

(1998). Rennick explains that

“[o]rdinary evidentiary admissions may be contradicted or explained” but these “should be

- 54 - No. 1-20-0462

distinguished from judicial admissions, which conclusively bind a party.”

. Our

supreme court proceeded to explain: “Judicial admissions are defined as deliberate, clear,

unequivocal statements by a party about a concrete fact within that party’s knowledge.

[Citation.] Where made, a judicial admission may not be contradicted in a motion for summary

judgment [citation] or at trial [citation].”

.

¶ 216 This court has also cautioned that “[t]he doctrine of judicial admissions requires thoughtful

study for its application so that justice not be done on the strength of a chance statement made

by a nervous party.” (Internal quotation marks omitted.) North Shore Community Bank & Trust

Co. v. Sheffield Wellington LLC,

. Because the doctrine is not

intended to penalize “confusion or an honest mistake,” a judicial admission will be found only

if “the party making the statement had no reasonable possibility of being mistaken.” (Internal

quotation marks omitted.) Id. ¶ 126.

¶ 217 We are not persuaded by the State’s reliance on the judicial admission doctrine.

Significantly, the State cites no precedent suggesting that prior testimony from a criminal

proceeding has ever been construed as a binding judicial admission. Thus, there is no support

for the suggestion that defendant’s prior testimony could ever qualify as a judicial admission.

Further, the State does not cite any case finding that a judicial admission can operate to bar a

claim for relief under the TIRC Act. This is not surprising, since the TIRC Act “establishes an

extraordinary procedure to investigate and determine factual claims of torture.” (Emphasis

added.) 775 ILCS 40/10 (West 2018).

¶ 218 Moreover, even assuming that the concept of judicial admissions could apply, we would

not be convinced that the two cited portions of defendant’s testimony would qualify. First, we

cannot say defendant’s one-word answers to the State’s line of cross-examination at the

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Miggins trial were unequivocal statements that defendant was treated well by police. This is

especially so given defendant’s explanation at the evidentiary hearing that he was surprised by

this line of cross-examination, since he and his trial counsel had decided not to discuss his

abuse by police. Defendant’s explanation was consistent with the testimony of his former trial

counsel, Judge O’Hara, who acknowledged that he told defendant they would “not go into” his

allegations of police abuse at trial.

¶ 219 With respect to defendant’s testimony at the 1994 motion to suppress that Boudreau did

not hit him, we emphasize that a judicial admission should not be found if it could be the

product of mistake or confusion. North Shore Community Bank & Trust Co.,

. Given the circumstances of the 1991 interrogation (which lasted 30 hours and

involved numerous officers), there is a reasonable likelihood that the cited testimony regarding

Boudreau was the product of understandable confusion or mistake on defendant’s part. See

Gibson,

(explaining it would not be surprising if a coerced

defendant was “never sure, to begin with, exactly who threw which punch, slap, or kick in

what order”). We thus reject the State’s contention that the prior testimony operated as a

binding judicial admission.

¶ 220 L. Defendant’s Evidence Satisfied His Initial

Burden to Show a Likelihood of Suppression

¶ 221 We have now determined that the trial court abused its discretion in rejecting the pattern

practice evidence as irrelevant and that relief was not otherwise barred by the defendant’s

guilty plea in the Miles case or his prior testimony in the Miggins case. We now return to the

question of whether defendant “satisfie[d] his initial burden of showing the new evidence

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would likely have resulted in the suppression of his confession.” Wilson,

. We answer that question in the affirmative.

¶ 222 As discussed, defendant presented ample relevant pattern and practice evidence, including

numerous prior complaints against the detectives he now accuses of abusing him to coerce his

statements in the Miles and Miggins cases. This is certainly true with respect to his claim that

O’Brien and Stehlik coerced the Miggins statement. As the TIRC recognized, O’Brien has

been subject to approximately 50 claims of coercion, many of which were documented in

defendant’s submissions to the trial court. Among those claims is that of Ivan Smith, who

testified at the evidentiary hearing that O’Brien and Stehlik struck him with a phonebook in a

virtually identical manner to what defendant has consistently alleged since his motion to

suppress. Clearly, this evidence would significantly undermine O’Brien and Stehlik’s

testimony denying their mistreatment of defendant while interrogating him about the Miggins

case. We conclude that Smith’s testimony and the other pattern and practice evidence regarding

O’Brien and Stehlik would likely lead to suppression of the Miggins statement.

¶ 223 The same is true with respect to the ample pattern and practice evidence offered regarding

the detectives who allegedly coerced defendant’s statement about the Miles shooting: Kill,

Boudreau, and Halloran. As the TIRC’s decision noted, Kill has been named in about 40

complaints of coercion, Halloran in more than 50, and Boudreau “is notorious for having

obtained confessions in cases where the individual was in jail at the time of the offense to

which he confessed, cases which were later undermined by DNA evidence, and more than a

dozen cases where charges were dropped or the individual was acquitted at trial.” Many of

those prior complaints are described in the pattern and practice evidence, including claims by

Harold Hill, Dan Young, Nick Escamilla, Tyrone Reyna, Peter Williams, Clayborn Smith, and

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Oscar Gomez that they were abused by Halloran and Boudreau. 17 The pattern and practice

evidence also shows several other individuals alleged abuse by Boudreau, either individually

or in concert with Kill, including Imari Clemons, Jesse Clemons, Damoni Clemons, Johnny

Plummer, and Anthony Jakes, whose conviction was vacated in 2018. See Sarah Schulte, 2

Men Wrongly Imprisoned as Teens Have Convictions Vacated, ABC Chicago (Apr. 30, 2018),

https://abc7chicago.com/wrongly-convicted-convictions-vacated-murder-conviction-chicago-

exoneration/3410907/ [https://perma.cc/RTH7-TD49]. And Reeves testified at the evidentiary

hearing how Kill pressured him to sign a false confession in a similar manner that defendant

alleged with respect to the Miles statement.

¶ 224 We note that evidence regarding several of the same claimants was also relied upon by

Clayborn Smith in connection with his TIRC claim alleging abuse by Boudreau, Halloran, and

O’Brien. See Smith,

. In that case, we found that Smith

“produced sufficient evidence of a pattern [of] physical abuse by the detectives in question”

and that “the outcome of the suppression hearing likely would have been different had the

detectives been impeached with the new evidence of torture.”

. We reach the

same conclusion here, given the voluminous evidence implicating the detectives who

interrogated defendant. As this court stated in Smith, “we find it difficult to imag[ine] a

scenario in which the detectives’ testimony is not viewed in a new light given the numerous

torture allegations made by other defendants, which was not available at the time of the original

17 Codefendants Hill and Young were ultimately exonerated by DNA testing. See Rob Warden, Harold Hill, The Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/ Pages/casedetail.aspx?caseid=3296#:~:text=Harold%20Hill%20and%20his%20co,found%20had %20been%20set%20ablaze (last visited Feb. 24, 2023) [https://perma.cc/G8RH-9MY2]; see also Tyler,

(recognizing “Hill was exonerated through DNA evidence” and was released from prison).

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suppression hearing.” Id.¶ 102. In the same manner, we conclude that the pattern and practice

evidence satisfied defendant’s “initial burden of showing that new evidence would likely have

resulted in the suppression of his confession.” Wilson,

.

¶ 225 K. The State Could Not Meet Its Burden to Prove the Statements Were Voluntary

¶ 226 Our analysis is not yet complete, as we recognize that the trial court essentially conducted

a “simultaneous hearing” at which it considered both defendant’s claim under the TIRC Act

and defendant’s request to suppress the statements. See id. ¶ 50. That is, after defendant

satisfied his initial burden of showing that new evidence would likely have resulted in the

suppression of his confession, “the State ha[d] the burden of proving [defendant’s] statement

was voluntary, just as it would at a motion to suppress hearing.” Id. ¶ 54. If the State could

prove the confessions were voluntary by a preponderance of the evidence, then the burden

would shift back to defendant to prove involuntariness. Id. ¶¶ 53-54. As defendant requested

suppression in conjunction with the evidentiary hearing, we assess whether the State could

meet its corresponding burden.

¶ 227 In doing so, we keep in mind that a two-part standard of review applies to a ruling on a

motion to suppress. People v. Luedemann,

(2006). “[W]e give great

deference to the trial court’s factual findings, and we will reverse those findings only if they

are against the manifest weight of the evidence.”

However, the reviewing court “remains

free to undertake its own assessment of the facts in relation to the issues and may draw its own

conclusion when deciding what relief should be granted.”

Thus, “we review de novo the

trial court’s ultimate legal ruling as to whether suppression is warranted.”

. Under

the record, we find that suppression was warranted, as the trial court’s factual findings were

against the manifest weight of the evidence.

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¶ 228 We recognize that the trial court consistently made explicit findings of fact in the State’s

favor and against defendant. That is, the court elected to believe substantially all of the State’s

proffered testimony at the hearing, including whenever the accused detectives denied that they

mistreated defendant or the numerous other pattern and practice claimants. The court also

emphasized that it found defendant untruthful, concluding he had fabricated his allegations and

testimony to “rid[e] on the [sic] Burge’s torture bus.”

¶ 229 Notwithstanding the deferential standard of review, under the totality of the record, we find

the trial court’s credibility determinations were against the manifest weight of the evidence.

The evidence shows that, as the TIRC decision noted, defendant’s core allegations of abuse

and coercion relating to both the Miles and Miggins cases have remained consistent for nearly

30 years. Specifically, he has consistently alleged that (1) Kill kicked his handcuffs, (2) Kill’s

partner struck him, (3) O’Brien and Stehlik handcuffed his hands above his head, (4) O’Brien

struck him in the side with an object cushioned by a book, and (5) he was placed in a cold air-

conditioned room. And while the detectives have consistently denied the abuse and maintained

that defendant confessed voluntarily to the crimes during his 30 hours in custody, their

credibility is substantially (if not completely) undermined by the plethora of similar allegations

against them from the same time period. As discussed, defendant submitted voluminous

evidence establishing that the accused officers engaged in a pattern and practice of coercing

confessions using techniques similar to, if not identical to, what defendant has consistently

alleged. Under the totality of the record, we conclude the State could not meet its burden to

show that defendant voluntarily made the statements in either the Miles or Miggins case. 18

18 We reach this conclusion independent of defendant’s additional contentions that the trial court should have drawn a negative inference from the officers’ prior invocation of the fifth amendment, that the trial court “ignored” Dr. Cudecki’s medical testimony, or that the trial court “failed to adjudicate”

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¶ 230 L. The Proper Remedy Is Remand for New Trials

¶ 231 We thus conclude that (1) defendant met his “initial burden of showing that new evidence

would likely have resulted in the suppression of his confession[s]” and (2) that the State did

not meet its burden of proving defendant’s statements were voluntary. Wilson,

. Thus, defendant is entitled to suppression of his statements at new trials,

rather than merely remand for a new suppression hearing.

¶ 232 We also recognize that judicial economy is served by this outcome. As the parties

recognized at oral argument, the trial court’s evidentiary hearing following the TIRC referral

functioned as a second motion to suppress hearing. The trial court, as well as this court, has

now had the opportunity to consider all evidence relevant to defendant’s claim that his

inculpatory statements were involuntary. Remanding for a third suppression hearing (at which

the very same evidence would be presented) would be a waste of judicial resources.

¶ 233 We also note that defendant’s TIRC Act claim has been pending for over a decade, and it

has been over 30 years since the alleged police coercion. Thus, it is in the interest of justice to

remand for new trials without the inculpatory statements, rather than to prolong proceedings

with a duplicative suppression hearing.

¶ 234 We acknowledge that our decision to remand for new trials may be painful for the families

of the young victims in the underlying cases, especially as it has now been more than three

decades since the 1991 murders. We are sympathetic to the fact that they had no control over

whether police officers abused defendant, or the length of time it has taken for the TIRC claim

his claim that he was denied his right to counsel. As none of those arguments could undermine our conclusion that defendant is entitled to suppression and new trials, we do not separately discuss them.

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to be litigated. However, we are bound to apply the TIRC Act and our caselaw to guard against

use of a confession obtained through torture, regardless of whether a defendant is guilty. See

People v. Wrice,

(recognizing that use of a physically coerced confession

as substantive evidence of guilt “is never harmless error”).

¶ 235 Finally, as we are mindful of the credibility determinations made by the trial judge in the

evidentiary hearing, we find it is in the interest of justice for a different judge (or judges) to

preside over subsequent trial proceedings in both the Miggins and Miles cases. See Smith,

(in remanding for new suppression hearing, finding the

“interests of justice would be best served if the matter were assigned to a new judge on remand

in light of the credibility determinations already made by the previous judge”); Harris,

, ¶ 62 (remanding for suppression hearing with a different judge where the

trial judge’s rulings “expressed a tendency to affirm the officers’ credibility while giving little

weight to defendant’s new evidence”).

¶ 236 CONCLUSION

¶ 237 For the reasons stated, we reverse the judgment of the circuit court, vacate defendant’s

convictions in both the Miggins case (No. 91 CR 22460) and the Miles case (No. 91 CR 22152),

and remand for new trials in those cases. The State shall be precluded from using the

defendant’s written inculpatory statements in either trial. A different circuit court judge (or

judges) shall preside over proceedings on remand.

¶ 238 Reversed and remanded with directions.

¶ 239 JUSTICE HYMAN, specially concurring:

¶ 240 Asked at oral argument about the delay in this case, Anderson’s counsel did not explain

other than indicate that delay is one of the tragedies of our legal system. Anderson was 28

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years old in 1991. Twenty-one years later, the Torture Inquiry and Relief Commission found

Anderson’s claims credible and recommended further litigation. Anderson, now 60 years old,

has waited over three decades for this day.

¶ 241 Redress of an injustice like that experienced by Anderson and more than 100 others

should have provoked an urgent reaction from the beginning. Instead, for far too many of

these victims of police brutality, delay has immeasurably deprived them of their liberty,

compounded their suffering, impeded their healing.

¶ 242 An injustice never ceases to be an injustice until justice prevails.

¶ 243 PRESIDING JUSTICE LAVIN, specially concurring:

¶ 244 I concur in the judgment only.

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People v. Anderson,

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 91-CR- 22152, 91-CR-22460; the Hon. William H. Hooks, Judge, presiding.

Attorneys Russell Ainsworth, David B. Owens, and Debra Loevy, of The for Exoneration Project at the University of Chicago Law School, Appellant: of Chicago, for appellant.

Attorneys Elisabeth Gavin, Myles P. O’Rourke, Andrew N. Levine, and for Ariel Y. Hodges, Assistant Special State’s Attorneys, of Appellee: O’Rourke & Moody, of Chicago, for the People.

Amicus Curiae: Michael A. Scodro, Elaine Liu, Clare Myers, and Sara Norval, of Mayer Brown LLP, of Chicago, for amicus curiae Persons Concerned About the Illinois Criminal Justice System.

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