Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2018.02.22
11:42:50 -06'00'
People v. Del Prete, 2017 IL App (3d) 160535
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption JENNIFER DEL PRETE, Defendant-Appellee.
District & No. Third District
Docket No. 3-16-0535
Filed November 8, 2017
Decision Under Appeal from the Circuit Court of Will County, No. 03-CF-199; the
Review Hon. Carla A. Policandriotes, Judge, presiding.
Judgment Affirmed.
Counsel on James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
Appeal Lawrence M. Bauer, and Thomas D. Arado, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Patrick W. Blegen, Jodi L. Garvey, and Lisa L. Wood, of Blegen &
Garvey, of Chicago, for appellee.
Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion.
Justices Lytton and McDade concurred in the judgment and opinion.
OPINION
¶1 The State appeals the circuit court’s order granting the successive postconviction petition
filed by the defendant, Jennifer Del Prete. Specifically, the State argues that the defendant
failed to establish a Brady violation based on the State’s failure to disclose a letter written by
the lead detective in her case because there was no reasonable probability that the result of
the trial would have been different had the letter been disclosed.
¶2 FACTS
¶3 In 2004, the defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West
2002)) in that she shook I.Z., a 3½-month-old infant, knowing that such acts created a strong
probability of death or great bodily harm to I.Z. and thereby causing the death of I.Z. The
defendant was a day-care provider, and the charges resulted from an incident at the day care.
¶4 A bench trial was held. Barbara Z., I.Z.’s mother, testified that I.Z. was born on
September 6, 2002. On December 27, 2002, Barbara dropped I.Z. off at day care. I.Z. was
developmentally normal when Barbara dropped her off. Barbara did not harm I.Z. before
dropping her off at day care, and she did not see her husband harm I.Z. The next time
Barbara saw I.Z. was later that day at Provena St. Joseph Medical Center (Provena). I.Z. was
transferred to the University of Illinois at Chicago Hospital (UIC). I.Z. remained there for
three weeks. I.Z. was then transferred to Children’s Memorial Hospital. I.Z. remained there
for several weeks. I.Z. returned home on March 23, 2003. Barbara received help caring for
I.Z. from nurses who came to her home. On the morning of November 8, 2003, the nurse
who was caring for I.Z. called for Barbara. Barbara saw that I.Z.’s lips were blue, and she
called 911. I.Z. died the next day.
¶5 Detective Kenneth Kroll testified that he investigated I.Z.’s case. He interviewed the
defendant on December 29, 2002. The defendant told Kroll that she was the only one
working on December 27, 2002, because the other day-care provider was out of town. The
defendant said that after Barbara dropped I.Z. off that day, I.Z. took a bottle between 8 and 9
a.m. I.Z. then slept in a swing until around noon. At that time, I.Z. had “an extremely dirty
diaper.” The defendant changed I.Z.’s diaper and set her down on the couch. The defendant
stepped away for a moment to prepare a bottle for I.Z. When the defendant returned to the
couch, I.Z. “was making a snoring, labored breathing sound” and her body was “totally
limp.” The defendant picked I.Z. up, and her head flopped forward. The defendant gave I.Z. a
“very slight shake” while saying her name several times. The defendant tried to feed I.Z., but
the milk ran out of her mouth down the side of her face. The defendant then positioned I.Z.
face down and gave her three to five pats on the back in an attempt to dislodge anything that
might have been choking I.Z. The defendant felt panicked, and she called 911. The defendant
said that I.Z. did not fall or get knocked over that day. The defendant said that I.Z.’s head
moved more violently when she was patting I.Z. on the back than when she gave I.Z. the
slight shake.
¶6 Kroll took a break during the interrogation. When he returned, he told the defendant that
her statements were not consistent with the medical evidence. Kroll said that I.Z. suffered
from shaken baby syndrome (SBS) and subdural hematomas. Kroll told the defendant that he
believed she was involved in I.Z.’s injuries. The defendant began to cry. She said she could
not remember exactly what happened and that it was a very stressful, panicked situation. The
-2-
defendant told Kroll “she could have shaken [I.Z.] a little harder than she thought.” The
defendant maintained that she did not shake I.Z. violently, and she did not intentionally hurt
I.Z. Kroll acknowledged that he documented in his report that the defendant never actually
confessed to shaking I.Z.
¶7 Dr. Adrian Nica, a physician at Provena, testified that he treated I.Z. in the emergency
room on December 27, 2002. Nica ordered a CAT scan of I.Z.’s brain, which showed that
I.Z. had an “acute and chronic changes secondary to bleeds in different levels.” Nica said that
the chronic bleeding could have been days or a week old. Nica testified that because I.Z. had
not been involved in a car accident, “you have to assume that it was a child abuse or baby
shaking.” The defendant objected. The circuit court allowed Nica’s testimony that he
believed the bleeding was caused by child abuse or baby shaking for the limited purpose of
explaining his course of treatment, not for “the truth of the matter asserted as it relates to
expert diagnosis.”
¶8 Dr. Howard Hast was certified as an expert in the field of pediatric critical care medicine.
Hast testified that he treated I.Z. from December 30, 2002, through January 16, 2003. A
retinal scan showed that there was blood in I.Z.’s retinas, in front of the retinas, and in the
vitreous. I.Z. also had bifrontal subdural hematomas. Hast performed several tests to attempt
to determine a cause of the subdural hematomas. He found no bleeding tendency or
metabolic diseases that would explain the cause of the bleeding. Hast opined that the most
likely cause of the bilateral subdural hematomas was that I.Z. “was shaken or had some other
accelerating/decelerating injury occur such as being dropped or thrown or something like
that.”
¶9 Dr. Jeff Harkey testified that he was employed as a forensic pathologist by the Du Page
County coroner’s office. The court certified Harkey as an expert in the field of forensic
pathology. Harkey testified that he conducted I.Z.’s autopsy on November 10, 2003. Harkey
took X-rays of I.Z. The X-rays showed no evidence of trauma. Harkey also examined I.Z.’s
brain. He did not observe any bleeding or acute trauma. Harkey reviewed some of I.Z.’s
medical records, including a physician’s report from Dr. Emalee Flaherty. Harkey
determined that I.Z.’s cause of death was “multiple system organ failure due to
anoxic-ischemic injuries *** that was due to abusive head trauma [(AHT)].” Harkey stated
that an anoxic-ischemic injury occurred when there was not enough blood flow and oxygen
to bodily tissue. Harkey testified that I.Z.’s AHT occurred 10 or 11 months prior to her death.
Harkey opined: “I believe that the reason that [I.Z.] suffered the injury the day before she
died was a direct result of the injury that she suffered the 10 to 11 months before.” Harkey
observed no evidence of old trauma during his autopsy, and his conclusion that I.Z. suffered
AHT was due to Flaherty’s report.
¶ 10 Flaherty testified that she had been a pediatrician at Children’s Memorial Hospital for
over 30 years. The court qualified Flaherty as an expert in the areas of pediatrics and child
abuse. Flaherty testified that she reviewed I.Z.’s medical records from UIC. She also spoke
with Hast, reviewed the police reports, reviewed the paramedic reports, interviewed I.Z.’s
parents, and examined I.Z. Flaherty concluded that I.Z. “had suffered [AHT] or also known
to many people as [SBS].” Flaherty stated: “[AHT] is a form of child abuse where a child
suffers some kind of acceleration/deceleration injuries to the brain that cause some—or for
example, shaking, and cause the unconstillation [sic] of injuries.” Flaherty stated that AHT
-3-
could be caused by “violent sustained shaking and sometimes impact” to infants or young
children. Flaherty said that AHT was most commonly caused by shaking.
¶ 11 Flaherty showed a PowerPoint presentation to explain AHT. Flaherty showed a slide that
contained the “spectrum of injuries you can see in [AHT] or [SBS].” Of those symptoms, I.Z.
had subdural hemorrhages, subarachnoid hemorrhages, diffusing injury, and parenchymal
lacerations and contusions. Flaherty stated that I.Z. suffered from encephalomacia, or dead
brain tissue, as a result of her injuries. Flaherty stated that acceleration/deceleration forces
like violent shaking can also cause retinal hemorrhages, which I.Z. had. Flaherty opined that
“when you see hemorrhages to the ora serrata as in [I.Z.’s] case, those kinds of extensive
hemorrhages are only caused by these acceleration/deceleration forces or seen in [SBS].”
¶ 12 Flaherty further opined that “extensive subdural hematomas like [I.Z.] had over extensive
areas of the head, those are only caused by acceleration and deceleration forces. For example,
shaking would be an example.” The prosecutor asked Flaherty what level of force would be
needed for violent shaking to cause these injuries. Flaherty responded: “Forces would be so
severe that if anyone witnessed that shaking occurring or someone shaking a child like that,
they would know that that child would suffer severe injury.” The prosecutor asked Flaherty if
she could offer a time frame as to when the abuse to I.Z. occurred. Flaherty replied:
“Oh, yes. On the day of the 27th sometime after—[I.Z.] was described eating
normally in the morning, and sometime after she awoke and was reported to be
smiling but crabby. About—awoke about 1 o’clock and reported to be smiling and
crabby again which tells us she had not suffered severe brain injury at that point, and
just before she lost consciousness and became unresponsive.”
¶ 13 Flaherty stated that the effects of the abuse would have been immediate. Flaherty opined
that I.Z.’s injuries could not have been caused by someone performing cardiopulmonary
resuscitation (CPR) poorly on her, from a fall, or by a young child. Flaherty stated that “[i]t
would take someone of adult strength shaking this child violently to cause these kinds of
injuries.”
¶ 14 Flaherty acknowledged that I.Z. did not have any bruises. Flaherty stated that bruises on
the arms and trunk are not part of the definition of SBS. Flaherty said that she would
typically look for any bruises while conducting an SBS analysis, but it was “pretty
uncommon” to find bruising in a case of SBS. Flaherty did not know why.
¶ 15 The State rested.
¶ 16 The defendant called Dr. Wayne Tucker. The court qualified Tucker as an expert in
pathology and pediatrics over the State’s objection. Tucker testified that he reviewed medical
records, Flaherty’s report, police reports, paramedics’ reports, an autopsy report, and autopsy
pictures. Based on his review of these documents, Tucker opined that I.Z.’s injuries occurred
approximately 18 to 24 hours before she collapsed at the day care. Tucker reasoned that
I.Z.’s CAT scan “reflected that there was an acute situation and there was a chronicity to the
situation of the frontal hematomas, subdural.” Tucker stated that “chronic” meant that it had
been there for “at least 7 to 10 days.” Tucker opined that “[a]lmost anything that will cause
an increase in intracranial pressure” could cause a chronic subdural hematoma to rebleed.
Tucker gave the examples of coughing, sneezing, holding breath, movement, turning the
head quickly, or falling.
-4-
¶ 17 Tucker stated that the fact that I.Z. took a bottle the morning she collapsed “does not rule
out any problem at that time because the sucking reflex of an infant overcomes any damage
that might—a child may have cerebral or physically.” Tucker noted that I.Z.’s history
showed that she had problems taking bottles generally.
¶ 18 Tucker stated that bruising was part of the definition of SBS. Tucker explained that “to
do this even on a three month old or a one month old or any age group *** whoever is doing
it has to pick up into the arms, say hold arms or the shoulders and grab and hold on tightly to
give the shaking.” Tucker stated that he had never seen a shaken baby without bruising.
Tucker had previously testified in three SBS cases.
¶ 19 The defense rested.
¶ 20 During closing argument, the State argued:
“Dr. Flaherty comes in as a fully qualified expert in the field of pediatrics and child
abuse medicine. She comes in and she explains and teaches this Court what [AHT] is,
a rapid acceleration and deceleration of the head which causes very distinct and
specific injuries. These injuries are telltale signs and solely towards what is
commonly referred to as [SBS].”
The State further argued:
“This all happens, Judge, on [the defendant’s] watch of [I.Z.] Dr. Flaherty
testified very clearly, the injuries are immediate. This is not something that happens
hours or days before. This is something that happens when you cause this type of
injury this severe. The effect is immediate. In the morning [I.Z.] is fine. She is able to
eat. She is able to take a bottle between 8 and 9 o’clock from [the defendant]. That
means that these core functions in the blue area as she described have not been
injured yet. It is to this point, Judge, where [I.Z.] is fine.
***
*** The abrupt change signifies when this injury occurred, and that is between
12:00 and 1:30 when the 911 call was made. That puts it squarely on [the
defendant’s] hands.
Dr. Flaherty testified five years old and under, they can’t do this. A fall from a
swing can’t do this. An accident can’t do this. This is a violent shaking. A violent
back and forth acceleration/deceleration of the head, that’s what happened here,
Judge.”
¶ 21 The circuit court found the defendant guilty of first degree murder and sentenced her to
20 years’ imprisonment.
¶ 22 On direct appeal, we affirmed the defendant’s conviction. People v. Del Prete, No.
3-05-0868 (2007) (unpublished order under Supreme Court Rule 23). The defendant filed a
postconviction petition alleging that she received ineffective assistance of counsel. The
circuit court summarily dismissed the petition, and we affirmed the summary dismissal.
People v. Del Prete, 3-08-0431 (2009) (unpublished order under Supreme Court Rule 23).
¶ 23 The defendant filed a motion for leave to file a successive petition for postconviction
relief. The motion alleged that the defendant recently discovered the existence of a letter
written by Kroll (the Kroll letter) that the State failed to disclose prior to trial. Journalism
students at Northwestern University obtained the Kroll letter through a Freedom of
-5-
Information Act (FOIA) request. The Kroll letter was dated November 10, 2003, and was
addressed to Flaherty.1 The Kroll letter stated:
“If you haven’t already heard, [I.Z.] died 11-09-03. I’m writing to inform you of a
‘twist’ in our case presented by the DuPage County Medical Examiner. On 11-09-03,
I received a phone call from an Attorney who notified me that [I.Z.] would undergo a
‘post’ medical exam on 11-10-03. This Attorney specifically called to inform me that
the pathologist scheduled to perform the autopsy does not agree with SBS, and has
testified for the defense in two DuPage County SBS cases.
On 11-10-03, I spoke to a Plainfield Police Evidence Tech (ET) who was present
at the autopsy. The ET advised that Dr. Jeff Harky [sic] did in fact question the
diagnosis of SBS. I was told that Dr. Harky specifically looked for fractures in the rib
cage (adult grabbing point) and found none. Dr. Harky intends to summons all of
[I.Z.’s] medical records to see who determined this was SBS, and why they reached
that diagnosis.
I have great confidence in your findings, and our investigation. This
correspondence is FYI. However, I anticipate having to answer several questions for
my prosecuting Attorney. Please call me when you have a few minutes to discuss the
case.
THANKS!!!”
The defendant’s motion for leave to file a successive postconviction petition argued that the
State’s failure to disclose the Kroll letter violated the rule set forth in Brady v. Maryland, 373
U.S. 83 (1963). The motion also set forth a claim of actual innocence.
¶ 24 The circuit court denied the defendant’s motion, finding that the defendant had not
demonstrated sufficient cause and prejudice. We reversed the ruling of the circuit court and
remanded the matter for further postconviction proceedings. People v. Del Prete, 2015 IL
App (3d) 140007-U.
¶ 25 On remand, the defendant filed a successive postconviction petition. In the petition, the
defendant argued that the State’s failure to disclose the Kroll letter constituted a Brady
violation. The petition also set forth an actual innocence claim based on the Kroll letter and
testimony presented in the defendant’s federal habeas corpus proceedings, including
Harkey’s testimony that he was unaware at the time of the autopsy that I.Z. had a chronic
subdural hematoma. The petition advanced to the third stage of proceedings, and an
evidentiary hearing was held.
¶ 26 The parties stipulated as to the admission of the transcript of the testimony from a hearing
held on June 21, 2013, in the defendant’s federal habeas corpus case. At that hearing, Harkey
testified that he had “no independent recollection” of expressing doubts regarding the
diagnosis of SBS in I.Z.’s case. At the time of I.Z.’s autopsy in 2003, Harkey had general
disagreements with SBS. Specifically, Harkey stated: “The name of the syndrome implies a
mechanism that I don’t believe can be separated from blunt force trauma.” Harkey explained:
1
The name of the addressee was redacted from the copy of the Kroll letter obtained pursuant to the
FOIA request. However, testimony in the defendant’s federal habeas corpus proceedings established
that the Kroll letter was addressed to Flaherty.
-6-
“So when you see a constellation of injuries in a child, I don’t have faith in
somebody being able to say this head injury came from shaking and not from blunt
force trauma. It is possible that they have reason to believe that it’s shaking because
of neck injury, that the neck injury might have caused the head injury, and in that
case, then they have a reason to do it. Then they have a reason to say this is shaken
baby type of injuries. If they catch the whole thing on a nanny cam, they have got a
reason to say this is shaken injuries.
But when I am looking at pathology in an autopsy, I don’t believe that I can say
this child was shaken rather than this child was hit.”
Harkey stated that the term AHT did not describe a specific mechanism of injury and could
include injury as a result of blunt force trauma, shaking, or a combination of both. Blunt
force trauma does not necessarily leave a visible sign of injury or result in bruising or
fractures.
¶ 27 Harkey stated that he also had a problem with a diagnosis of SBS or AHT regarding the
ability to pinpoint a perpetrator. Harkey explained:
“The problem with head injuries is a child can go unresponsive at a time that is
remote—depending upon the type of injury—that is remote from the actual injury,
and so if the child has been in the care of a number of different people, which one
inflicted the trauma that eventually led to the child’s collapse.
With the shaken baby philosophy, this was supposed to solve all of our problems
because it’s obvious that the type of injury that you get from shaking is going to make
the baby go unresponsive immediately. And, therefore, it’s whoever the baby was
with that is the perpetrator. And that would be magic for us. We could solve lots of
problems.
The problem is—
And solve lots of problems, that is, as to who did it.
But the problem that I have with it is that the people that purport to be able to say
these injuries are due to shaking and not due to blunt trauma that may have occurred
earlier, I don’t agree with them. I don’t agree that they’re able to divine that.”
¶ 28 Harkey opined that “all of those injuries that you can find with shaking, you can find with
blunt trauma.” Harkey believed that an infant with subdural hematomas, retinal hemorrhages,
and brain swelling could drink milk from a bottle before collapsing. Harkey stated that an
infant’s ability to feed could be useful to pinpointing the perpetrator in some cases, “but it’s
not black and white, one or the other.” Harkey said that if a baby were thrown onto a couch
or fell on a soft surface, there could be a lucid period in which the baby would not
immediately collapse. Harkey had these opinions in 2003 and 2005 and would have testified
accordingly at the defendant’s trial had he been asked during his testimony.
¶ 29 Harkey testified that his determination as to I.Z.’s cause of death had nothing to do with
his autopsy findings. Rather, he relied on the conclusions of other doctors. Harkey was not
aware that I.Z. had a chronic subdural hematoma at the time he arrived at his opinion
regarding I.Z.’s cause of death. Defense counsel advised him of this fact.
¶ 30 The defendant also called Harkey as a witness at the evidentiary hearing for her
successive postconviction petition. Harkey again testified that when he conducted I.Z.’s
autopsy, he was unaware that she had a chronic subdural hematoma. Harkey explained that a
-7-
chronic subdural hematoma is a collection of blood in the subdural space that is three weeks
old or older. Harkey said that he had records from Provena at the time of the autopsy, but he
did not have the radiologist’s report that noted the chronic subdural hematoma.
¶ 31 Harkey stated that he concluded at the time of the autopsy that I.Z.’s cause of death was
“multi-system organ failure due to anoxic ischemic injury as a result of [AHT].” However, if
Harkey had known that I.Z. had a chronic subdural hematoma, he would have stated that her
cause of death was multi-system organ failure due to anoxic-ischemic injury as a result of
acute and chronic subdural hematomas. Harkey stated that the rebleeding of a chronic
subdural hematoma could cause acute subdural hematomas and could cause a child to
collapse. Harkey testified that it was possible for a chronic subdural hematoma to rebleed
spontaneously not due to trauma. Harkey explained:
“When it rebleeds spontaneously, it increases in size. It could also be an irritant to
the surface of the brain when there is—if there is pressure on the brain, there could be
seizures. All of the things that happened to the baby suddenly at the babysitter’s
house could be a result of a rebleed. Just raising that possibility of a rebleed in a
chronic subdural hematoma draws doubt that there was physical abuse that was
rendered that day because it’s not necessary for that to happen for chronic subdural
hematomas to rebleed.”
¶ 32 Harkey stated that he had reviewed Flaherty’s report at the time of I.Z.’s autopsy, and it
was one of the records he relied on in determining I.Z.’s cause of death. Harkey noted that
the report stated that I.Z. had acute subdural hematomas, but it did not mention a chronic
subdural hematoma. Flaherty’s report concluded that I.Z.’s injuries were caused by child
abuse and occurred immediately before I.Z.’s abrupt change in mental status. Harkey stated
that he did not agree with Flaherty’s conclusions because the chronic subdural hematoma did
not occur immediately prior to I.Z.’s abrupt change in mental status. Harkey explained that
Flaherty’s “facts [did] lead to her conclusions, but because there is a change in facts that
there is a chronic subdural hematoma, that changes the conclusion.”
¶ 33 Harkey testified that he did not agree with the term SBS at the time of I.Z.’s autopsy
because it implied a mechanism that is not supported by physical findings. Harkey stated that
the head injuries a child suffers in SBS are no different than head injuries caused by a blow
to the head, so there was no way to determine from the head injuries whether the baby was
shaken or hit. There was good reason to believe a baby had been shaken if the baby had neck
injuries, but I.Z. did not have neck injuries.
¶ 34 The following exchange occurred between defense counsel and Harkey:
“Q. Do you also have any issue with [SBS] or [AHT] as it relates to pinpointing a
perpetrator of the abuse of a child?
A. Yes.
Q. Tell us what that issue is.
A. Part of the [SBS] philosophy is that the child sustains severe neurological
injury that is called a diffuse axonal injury and becomes immediately unresponsive.
Therefore, it makes it very obvious that whoever the baby was with at the time is the
one that inflicted the injury.
Q. Do you think that that’s correct?
-8-
A. I think that babies can become unresponsive from old trauma such as a
subdural that rebleeds, as we have already talked about. The sequela of that leads to
brain swelling from that anoxic injury, leads to brain swelling and retinal
hemorrhages and all of the findings that are purported to be from [SBS].
Q. If someone had testified at [the defendant’s] trial back in 2005 that [the
defendant] must have been the perpetrator of this offense because the baby collapsed
in her presence and custody, would you have agreed or disagreed with that?
A. I would have disagreed. Let’s see. Do I know about the chronic?
Q. Yes.
A. I do know about the chronic at that time?
Q. Right.
A. I would have disagreed with that.
Q. Do you agree that in the time between a—the existence of a chronic subdural
hematoma and its rebleeding to collapse, a baby could feed and take a bottle and be
relatively normal?
A. Yes.”
¶ 35 When asked again on cross-examination if he had a problem with SBS or AHT in that it
pinpointed the perpetrator as the last person with the child before the child collapsed, Harkey
responded:
“Yeah. That’s not considered to be a problem. That would be—you know if—It
would make investigations incredibly easy. You can identify them. If you can find
this magic thing that happens only with shaking and you can’t get it any other way,
that’s called pathognomonic. If you have a pathognomonic finding and the baby goes
immediately unresponsive, with that pathognomonic finding, it happened acutely.
It’s what we are seeking. It’s what we would like to find is something
pathognomonic. That would make things better. So I don’t have a problem with them
finding something someday. I would love if they did find something. I just don’t think
it’s been found yet. If it were found, it would be very helpful for pinpointing the
perpetrator.”
¶ 36 Harkey testified that it was possible for a baby to become unresponsive immediately after
a severe head trauma caused by shaking, shaking and impact, or blunt trauma. A baby could
have a delayed collapse if the shaking or impact caused some injury but not extensive
subdural hematomas or axonal injury. It was possible for a baby to suffer a relatively minor
injury, get a subdural hematoma, and not collapse for a significant period of time. A baby
could also collapse, recover, and act normal for a long time.
¶ 37 Harkey stated that if a baby died quickly following a head injury, he would look for
fractured ribs and bruises on the rib cage from adult grabbing points. He did not look for
bruises or fresh fractures in I.Z.’s case because she died 9 or 10 months after she collapsed.
Harkey found no evidence of old fractures. Harkey stated that a baby could suffer from AHT
without having rib fractures or bruising.
¶ 38 Charles Bretz, defendant’s trial counsel, testified at the evidentiary hearing that the State
did not turn over the Kroll letter to him prior to trial. At the time of the defendant’s trial,
Bretz “had no idea” that Harkey did not agree with SBS or that he had previously testified for
the defense in any SBS cases. Bretz testified that if he had known the information contained
-9-
in the Kroll letter, he would have attempted to interview Harkey. Bretz would have asked
Harkey about the lack of adult grabbing points on I.Z., Harkey’s testimony in prior SBS
cases, why Harkey questioned the SBS diagnosis in other cases, and Harkey’s concerns with
the general validity of an SBS diagnosis. Bretz would have attempted to obtain the transcripts
from other SBS cases in which Harkey testified. Bretz did not do these things because there
was no indication that Harkey had an opinion other than that I.Z. died of SBS. Harkey
appeared to be “completely aligned with the State’s theory of the case and the opinion of
their expert, Dr. Flaherty.”
¶ 39 Bretz stated that his cross-examination of Harkey would have been different if Bretz had
known about the Kroll letter. Specifically, Bretz would have questioned Harkey about SBS
and Harkey’s concerns about the lack of validity of such a diagnosis. Bretz would have also
questioned Harkey about questions he raised at the time of the autopsy and why his final
report did not mention any of his doubts or concerns regarding SBS in I.Z.’s case or in
general.
¶ 40 Bretz also testified that if the State had given him the Kroll letter, he would have given it
to Tucker and asked him to comment on it. Bretz would have asked Tucker what questions
he should ask Harkey during a pretrial interview or during cross-examination. Bretz would
have also sought out additional medical experts regarding concerns they had with the SBS
diagnosis in I.Z.’s case. Additionally, Bretz would have recommended that the defendant
take a jury trial rather than a bench trial if the State had given him the Kroll letter. Bretz
testified that he believed Harkey knew about I.Z.’s chronic subdural hematoma because his
report stated that he reviewed the records from Provena.
¶ 41 After the hearing, the circuit court granted the defendant’s successive postconviction
petition and ordered a new trial.
¶ 42 ANALYSIS
¶ 43 The State argues that the circuit court erred in granting the defendant’s successive
postconviction petition. We will not reverse the circuit court’s decision following a
third-stage evidentiary hearing on a postconviction petition where fact finding and credibility
determinations are involved unless the decision is manifestly erroneous. People v. Pendleton,
223 Ill. 2d 458, 473 (2006). “ ‘Manifest error’ is defined as ‘error which is “clearly evident,
plain, and indisputable.” ’ ” People v. Ortiz, 235 Ill. 2d 319, 333 (2009) (quoting People v.
Morgan, 212 Ill. 2d 148, 155 (2004), quoting People v. Johnson, 206 Ill. 2d 348, 360 (2002)).
“Thus, a decision is manifestly erroneous when the opposite conclusion is clearly evident.”
People v. Coleman, 2013 IL 113307, ¶ 98.
¶ 44 We first address the defendant’s Brady claim. “A Brady claim requires a showing that:
(1) the undisclosed evidence is favorable to the accused because it is either exculpatory or
impeaching; (2) the evidence was suppressed by the State either wilfully or inadvertently;
and (3) the accused was prejudiced because the evidence is material to guilt or punishment.”
People v. Beaman, 229 Ill. 2d 56, 73-74 (2008). “Evidence is material if there is a reasonable
probability that the result of the proceeding would have been different had the evidence been
disclosed.” Id. at 74. The materiality inquiry “ ‘is not a sufficiency of evidence test’ ”
(People v. Coleman, 183 Ill. 2d 366, 393 (1998) (quoting Kyles v. Whitley, 514 U.S. 419, 434
(1995))) and “a showing of materiality does not require demonstration by a preponderance
that disclosure would have resulted ultimately in defendant’s acquittal.” Id. “Materiality is
- 10 -
demonstrated ‘by showing that the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.’ ” Id. (quoting
Kyles, 514 U.S. at 435).
¶ 45 In the instant case, the Kroll letter was favorable evidence. The Kroll letter showed that
the lead investigator in the case learned that Harkey initially questioned I.Z.’s SBS diagnosis,
disagreed with SBS in general, found the lack of adult grabbing points on I.Z. to be
significant, and testified for the defense in two SBS cases.
¶ 46 Regarding the second prong in our Brady analysis, it is undisputed that the Kroll letter
was not turned over to the defense. Additionally, Bretz testified that he was not aware of the
information contained in the Kroll letter.
¶ 47 We turn our attention to the third factor in our Brady analysis, namely, whether the Kroll
letter was material to guilt or punishment. As we discussed in our prior decision in Del Prete,
2015 IL App (3d) 140007-U, ¶¶ 39-40, even if the withheld evidence is itself inadmissible, it
may still be material evidence under Brady if it would have led to the discovery of admissible
evidence. Our supreme court implicitly recognized this in People v. Olinger, 112 Ill. 2d 324,
342-43 (1986), when it held that the undisclosed evidence in that case could not have
affected the outcome of the trial because it was inadmissible and the defendant could point to
no admissible evidence the withheld information would have led to. Additionally, this is the
approach of a majority of the federal circuit courts. See Johnson v. Folino, 705 F.3d 117, 130
(3d Cir. 2013) (“[I]nadmissible evidence may be material if it could have led to the discovery
of admissible evidence.”); Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003) (“[W]e think it
plain that evidence itself inadmissible could be so promising a lead to strong exculpatory
evidence that there could be no justification for withholding it.” (Emphasis omitted.)); United
States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002); Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir.
2000); United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991); see also United States v.
Morales, 746 F.3d 310, 315 (7th Cir. 2014). But see Hoke v. Netherland, 92 F.3d 1350 (4th
Cir. 1996).
¶ 48 Here, while the statements about Harkey in the Kroll letter may have been inadmissible
hearsay, the Kroll letter led to the discovery of admissible evidence—namely, Harkey’s
testimony regarding his disagreements with SBS. Bretz testified that if he had received the
Kroll letter in discovery, he would have attempted to interview Harkey regarding his doubts
about SBS, both in I.Z.’s case and in general. Had Bretz interviewed Harkey on these
subjects, he would have discovered Harkey’s general disagreements with SBS.
¶ 49 We find that Harkey’s testimony in the federal habeas corpus proceedings and at the
evidentiary hearing was material evidence for Brady purposes because it “ ‘could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.’ ” Coleman, 183 Ill. 2d at 393 (quoting Kyles, 514 U.S. at 435). The State’s theory of
the case at I.Z.’s trial was that the defendant shook I.Z. violently, which immediately caused
I.Z. to collapse. Under the State’s theory, the defendant was the perpetrator because she was
the only adult with I.Z. at the time I.Z. collapsed. The defendant did not confess to the
offense and there were no eyewitnesses. Rather, the State’s theory was based almost entirely
on Flaherty’s expert testimony regarding SBS and AHT. While Harkey’s limited testimony at
the defendant’s trial did not contradict Flaherty’s testimony, his testimony at the federal
habeas corpus hearing and the postconviction evidentiary hearing undercut Flaherty’s trial
testimony in several significant ways.
- 11 -
¶ 50 Harkey testified at the federal hearing that, although he could not recall expressing doubts
about the SBS diagnosis in I.Z.’s case, he had disagreements with SBS in general at the time
of I.Z.’s trial. Specifically, Harkey testified that all the injuries attributed to shaking in SBS
cases could also be caused by blunt force trauma. Thus, Harkey opined, one could not tell
from a child’s injuries alone whether the child was shaken or hit. This testimony contradicted
Flaherty’s testimony that I.Z.’s injuries could only have been caused by
acceleration/deceleration forces like shaking. While Flaherty noted that AHT could result
from injuries other than shaking, she said that shaking was the most common. Flaherty
repeatedly gave the example of shaking throughout her testimony and used the terms AHT
and SBS virtually interchangeably.
¶ 51 Moreover, Harkey testified that he disagreed with SBS as it related to the ability to
pinpoint a perpetrator. Harkey stated that, depending on the type of injury, a child could go
unresponsive at a time remote from the actual injury. Harkey opined that, based on the injury
alone, one could not divine that a baby went unresponsive immediately after being shaken as
opposed to collapsing from “blunt trauma that may have occurred earlier.” Harkey testified
that, had he been asked at the defendant’s trial, he would have disagreed that the defendant
must have been the perpetrator because she was the last adult to be with I.Z. before she
collapsed. This contradicted Flaherty’s testimony that the effect of I.Z.’s injuries could have
only been caused by acceleration/deceleration forces like shaking and that the effect of the
injuries would have been immediate.
¶ 52 Additionally, Harkey’s testimony that it was possible for an infant with subdural
hematomas, retinal hemorrhages, and brain swelling to drink milk from a bottle before
collapsing undercut Flaherty’s testimony that the fact that I.Z. ate normally in the morning on
the day she collapsed showed that her brain injury had not yet occurred. It also bolstered
Tucker’s testimony that the fact that I.Z. took a bottle the morning she collapsed did not rule
out the possibility that she was already experiencing problems at that time.
¶ 53 We reemphasize that the defendant did not confess to the offense and there were no
eyewitnesses to the alleged abuse in this case. The State’s theory that the defendant was the
perpetrator was based almost entirely on Flaherty’s expert testimony that I.Z.’s injuries were
caused by someone of adult strength shaking her and that the injuries were immediate. Under
these circumstances, we find that Harkey’s testimony concerning his disagreement with SBS,
which contradicts significant aspects of Flaherty’s testimony, “ ‘could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the verdict.’ ”
Coleman, 183 Ill. 2d at 393 (quoting Kyles, 514 U.S. at 435). Thus, we find that the circuit
court’s decision, granting the successive postconviction petition, was not manifestly
erroneous, as the opposite conclusion was not clearly evident. See Coleman, 2013 IL 113307,
¶ 98.
¶ 54 We reject the State’s contention that Harkey’s testimony regarding his disagreement with
SBS would not change the outcome because there was testimony, other than Flaherty’s
testimony, indicating that I.Z. was abused. In support of this proposition, the State cites to the
testimony of Nica and Hast. While Nica and Hast testified that they believed I.Z. was shaken
or abused, neither gave an opinion as to the timing of I.Z.’s injuries. Only Flaherty testified
that the injury must have been immediate. Also, Nica’s testimony regarding his opinion that
I.Z. suffered abuse was not admitted for the truth of the matter asserted. The significance of
Harkey’s testimony at the federal habeas corpus hearing and postconviction evidentiary
- 12 -
hearing was not that it ruled out the possibility that I.Z. was shaken or otherwise abused.
Rather, the significance of Harkey’s testimony was that it cast doubt on the ability to
determine how and when I.Z. was injured based on her injuries alone.
¶ 55 We also reject the State’s argument that Bretz should have interviewed Harkey and
discussed Harkey’s beliefs regarding SBS even without the disclosure of the Kroll letter. The
fact that Bretz might have discovered the information contained in the Kroll letter if he had
interviewed Harkey does not excuse the State’s failure to turn over favorable evidence to the
defendant.
¶ 56 Because we affirm the judgment of the circuit court on the basis of the defendant’s Brady
claim, we need not address the defendant’s actual innocence claim. As such, we do not
address Harkey’s testimony regarding I.Z.’s chronic subdural hematoma, as that testimony
related to the defendant’s actual innocence claim. The defendant will have the opportunity to
present such evidence at her new trial.
¶ 57 CONCLUSION
¶ 58 The judgment of the circuit court of Will County is affirmed.
¶ 59 Affirmed.
- 13 -