People v. Smith

2022 IL App (1st) 201256-U
No. 1-20-1256
Second Division
June 21, 2022

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________

) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 92 CR 25596
v. )
)
CLAYBORN SMITH, ) Honorable
) Alfredo Maldonado
Defendant-Appellant, ) Judge, presiding.

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶1 Held: We reverse the circuit court’s denial of relief upon a referral from the Illinois
Torture Inquiry and Relief Commission where defendant sufficiently established
that the result of his suppression hearing would likely have been different had the
interrogating officers been impeached with new evidence that they employed a
pattern of abusive tactics in other cases. The matter is remanded for a new
suppression hearing.
No. 1-20-1256

¶2 Following a bench trial, defendant Clayborn Smith was convicted and sentenced to life in

prison for the 1992 murders of his grandfather, Miller Tims (Miller), and his great aunt, Ruby

Bivens, as well as other related offenses. Among the evidence presented against defendant was his

court-reported confession given after interrogation at Area 1 in Chicago. In 2011, defendant

submitted a claim to the Illinois Torture Inquiry and Relief Commission (TIRC) pursuant to the

Illinois Torture Inquiry and Relief Commission Act (Act) (775 ILCS 40/1 et seq. (West 2010)),

alleging that his confession was false and the product of physical abuse at the hands of Chicago

police detectives Kenneth Boudreau, John Halloran, and James O’Brien. The TIRC referred

defendant’s claim for judicial review, but the circuit court denied relief after holding an evidentiary

hearing. Defendant now appeals, and we reverse.

¶3 I. BACKGROUND

¶4 A. Defendant’s Confession

¶5 Defendant was arrested on October 20, 1992, and, just after midnight on October 22, gave

the court-reported confession at the center of this appeal. The transcript of the confession reveals

the following.

¶6 Assistant State’s Attorney (ASA) Laura Lambur, Certified Shorthand Reporter Timothy

Bennett, and Boudreau were present for the statement. Defendant was read his Miranda rights and

informed of Lambur’s role as a prosecutor. He acknowledged that he understood this information

and wished to make a statement.

¶7 Defendant then stated that on October 17, 1992, he went to Miller’s home on Racine

Avenue in Chicago. He arrived at 7:43 p.m., which he knew because he noted the time on a clock

upon entry. Miller, Bivens, and Herbert Tims, defendant’s great uncle, were in the home.

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Defendant explained to Miller that he and his girlfriend, Karen Tate, were behind on their rent and

needed money or a place to stay. However, Miller said that he could not help them.

¶8 The conversation moved into the kitchen, where things became more heated. During the

argument, defendant grabbed a pan from Miller’s hand and used it to hit Miller in the head. The

two then struggled over a knife until the knife broke. Defendant punched Miller, sending him to

the ground. As Miller made multiple attempts to regain his footing, defendant assaulted him with

various household items such as a stepladder, a lamp, and a fork.

¶9 At some point, Bivens emerged from a bedroom. Defendant pushed her to the ground and

told her to stay down. They argued, and defendant hit Bivens in the head with an iron several times.

She never got up again.

¶ 10 Defendant then left the house and ran into an alley, where he placed his bloody shirt in a

trash can. Defendant returned to his apartment building and found his friend Jimmy McDonald,

who also lived in the building. Defendant stashed the rest of his clothes at McDonald’s apartment

and changed into some of McDonald’s clothes.

¶ 11 Next, defendant returned to his grandfather’s house to find Miller and Bivens in the same

spots as when he left. Herbert, who had both legs amputated, was still eating at the kitchen table. 1

Defendant hit Herbert with a skillet. He also took Miller’s wallet and Bivens’ purse. Finally,

defendant retrieved a can of gasoline from the basement, poured some on Miller and the

surrounding area, and ignited the gasoline with matches before leaving.

1
The record indicates Herbert had cognitive disabilities as well, though defendant denied this
during his testimony at the evidentiary hearing.

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No. 1-20-1256

¶ 12 After a while, defendant met up with his friend Clinton Tramble and the two smoked drugs

together. Afterwards, Tramble and another man, Leo Green, attempted to withdraw cash from an

ATM with Miller’s stolen bank cards. However, they were unsuccessful.

¶ 13 The transcript of defendant’s statement also indicates that he replied, “fair, nice” when

Lambur asked him how he had been treated while in custody. He denied being threatened or made

promises in exchange for his statement and acknowledged that he was offered food, drinks,

cigarettes, and bathroom breaks. Lambur informed defendant that they would review the statement

together after the court reporter typed it up, and defendant would get an opportunity to make any

additions or corrections he saw fit. However, defendant responded, “I just wish you type it from

there. I don’t want to change nothing. That is right there is all better when you drew up the first

[sic].” Lambur asked, “You mean when you and I first talked about it the first time?” Defendant

answered, “yes.”

¶ 14 Defendant, Lambur, and Boudreau signed at the bottom of all 22 pages of the statement.

Three of the pages contain minor, non-substantive corrections, which were also initialed by

defendant, Lambur, and Boudreau.

¶ 15 B. Motion to Suppress

¶ 16 Prior to trial, defendant filed a motion to suppress the confession, alleging that the

interrogating detectives extracted the confession through physical coercion and threats against him

and Tate.

¶ 17 1. Defendant’s Suppression Testimony

¶ 18 At the suppression hearing, defendant testified that he was arrested on the morning of

October 20, 1992, and brought to Area 1. Boudreau and Halloran took him to an interview room

on the second floor and handcuffed his right hand to a ring on the wall. The detectives stated that

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Tate was also in custody and that “it would be best” to tell them what he knew so that they “could

hurry up and get things over with and everybody could go home.” Defendant told them that he was

at home on the day in question and did not know anything about the murders. Halloran screamed

at defendant and accused him of lying, but defendant continued to deny any knowledge of the

crimes. Eventually, Halloran started hitting defendant in the head with an open hand. When

defendant still did not respond to questioning, Halloran cursed at defendant and started kicking his

legs.

¶ 19 Boudreau then asked the other detectives to leave the room. Once they were alone,

Boudreau told defendant that the police knew he was involved, but that the crimes were not

premediated. Boudreau also stated that defendant could either cooperate or he would “let that crazy

bastard [Halloran] back in.” Boudreau then left the room to “give [defendant] a minute to think

about what he said.”

¶ 20 When Boudreau returned, he told defendant that Tate (who was pregnant at the time) was

in custody crying. Boudreau suggested and that defendant should give a statement if he “didn’t

want to see [her] go to jail and lose the baby and all of that[.]” However, defendant continued to

refuse to answer any questions, so Boudreau left the room.

¶ 21 Later on, two other detectives entered the room. One of them smacked defendant and asked

him if he was ready to make a statement. Defendant did not respond, so one of the detectives held

defendant by his hair while the other grabbed him by the collar and “punched [him] a little bit.”

They told defendant that other witnesses had implicated him, and that Tate would go to jail for

murder and have her baby taken away.

¶ 22 The detectives left and, sometime later, Boudreau and Halloran returned to the interview

room. Boudreau told defendant that “everybody was pointing the finger” at him. Defendant

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became upset, telling the detectives to “get the fuck out of [his] face” because he had nothing to

say. Halloran grabbed defendant by his braids, pushed him up against the wall, and ordered him to

take off his shoes. Boudreau removed defendant’s shoes and socks because defendant refused to

comply. The detectives did not take the shoes and socks, but threw them in the corner of the

interrogation room.

¶ 23 Defendant was then alone in the room for a while until Boudreau returned. Boudreau again

suggested defendant make a statement, possibly saying that he acted in self-defense, so that Tate

would not go to jail or lose the baby. He informed defendant that Tate was crying and that Halloran

“had been in the room with her for a long time.” Boudreau also told defendant he could “help [him]

and get [him] off” if he told a good story, even if he had to make something up. Halloran then

came into the room and said that defendant would either talk by choice or by force. Halloran kicked

defendant, grabbed him by the braids, and hit him in the head several times.

¶ 24 The detective then left and came back. Halloran started pulling defendant’s braids again

and said he would not stop until defendant talked. Defendant insisted he would not talk without a

lawyer, and Halloran left. Boudreau told defendant that he should talk or else “that bastard”

Halloran would keep coming in to pull his hair.

¶ 25 Sometime later, Boudreau and another detective came in and showed defendant a pink

piece of paper that they claimed proved blood was found on defendant’s shoes. However,

defendant said that they could not have tested his shoes because they were still in the corner of the

interview room. The detectives took defendant downstairs to the lockup area, where he was booked

and placed in a cell. At some point, he was taken to the second floor and placed in a lineup before

being taken back down to the lockup area.

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No. 1-20-1256

¶ 26 Eventually, an officer came to take defendant back up to the interview room, but he refused

to go. Defendant only agreed to go upstairs after he was told that a lawyer was there waiting for

him. However, Lambur was the one waiting for him. Defendant was handcuffed to a chair and

informed that Lambur was a prosecutor, not his attorney. Realizing he had been tricked, defendant

became upset and cursed at Lambur. Boudreau dragged defendant out of the room by the chair he

was handcuffed to and scolded him for “disrespecting” Lambur. Boudreau unhandcuffed

defendant and took him to an area where, through a glass partition, he could see Lambur talking

to Tramble and Green.

¶ 27 Defendant was then brought back to the interview room and handcuffed to the wall again.

Lambur came in and started asking him questions. Defendant told her that he was at home with

Tate on October 17 and only briefly left once to go to the store. Lambur stated she would have

defendant’s statement typed up, and left.

¶ 28 Halloran came in and claimed that Tate did not corroborate defendant’s alibi. Halloran

grabbed defendant and they started to scuffle. Halloran called out to O’Brien, who then entered

the room. O’Brien pulled defendant’s fingers back while Halloran punched him.

¶ 29 Later, Lambur returned with a court reporter and began asking defendant questions. This

time, defendant falsely confessed to the murders because he was worn down and could no longer

resist. When the questioning was over, defendant was presented with the typed statement from the

court reporter. He initially refused to sign it, but eventually did so after the detectives pressured

him. Defendant did not make any corrections but complied with Lambur’s instructions to sign

where she made corrections.

¶ 30 Defendant testified that when he said “I just wish you type it up from there” during his

statement, he meant that he wanted Lambur to type up his earlier statement where he told her he

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No. 1-20-1256

was at home during the murders. Defendant also explained that certain pauses in the statement

were where Boudreau interjected and coached him to say specific details.

¶ 31 Defendant further testified that he told the public defender assigned to him in bond court

that the police had hit him and pulled his hair. The public defender arranged to have defendant

photographed. Defendant was shown the photographs during his testimony, and he stated that they

showed a bruise on his forehead and his braids pulled apart.

¶ 32 2. Roderick Sisson

¶ 33 Roderick Sisson, who was 17 years old at the time, also testified for the defense. Sisson

testified that he was arrested on either October 20 or 21, 1992 and brought to Area 1. He told the

detectives who interviewed him that he did not know anything about the murders, but they did not

believe him. One of the detectives threatened to “smack the shit out of” him if other witnesses

contradicted his story.

¶ 34 At some point, Sisson was alone in an interview room when he heard defendant in the next

room loudly telling officers to leave him alone and that he wanted a lawyer. Sisson also heard a

“loud bumping on the wall” and the sound of the door closing. Sisson tapped on the wall and asked

if defendant was all right, to which defendant replied, “they just roughed me up.” Defendant

corroborated this conversation during his own suppression hearing testimony.

¶ 35 On cross-examination, Sisson explained that he knew defendant’s voice because they were

both members of the Mickey Cobra street gang at the time. On re-direct examination, Sisson

testified that he did not mention the threat against him or the conversation with defendant because

he was scared and “just went by whatever they said.”

¶ 36 3. Karen Tate

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No. 1-20-1256

¶ 37 Tate testified that she was defendant’s girlfriend and six months pregnant at the time of the

murders. Boudreau and another detective picked her up at her father’s house on the evening of

October 19, 1992 and took her to Area 1, where she remained until the morning of October 21.

She saw defendant at the police station that morning and noticed that his hair was “real wild” and

that his clothes were “kind of hanging off” him.

¶ 38 4. Detective Boudreau

¶ 39 The State called Boudreau, who testified that he participated in defendant’s arrest on the

morning of October 20, 1992. Defendant was taken to Area 1, where he was read his Miranda

rights and interrogated by Boudreau and Halloran. During the approximately 20-minute initial

interview, defendant denied involvement and provided an alibi.

¶ 40 After further investigation, Boudreau and Halloran spoke to defendant again around 8 p.m.

on October 21. Defendant was re-read his Miranda rights and, over the course of an hour-long

conversation, admitted to committing the murders.

¶ 41 Shortly thereafter, Lambur entered the room and read defendant his Miranda rights. He

agreed to speak to her and again admitted to the murders “in graphic detail.” Lambur and defendant

next went over different ways of memorializing the statement. Lambur then spoke to defendant

alone for a few minutes. A court reporter arrived a little bit later, and defendant gave a court-

reported confession in the presence of the reporter, Boudreau, and Lambur.

¶ 42 Boudreau further testified that neither he nor anyone in his presence ever hit or kicked

defendant. Defendant never complained to him about being physically abused. Boudreau also

denied that he or anyone else in his presence ever told defendant that he and Tate would not be

charged with murder or have their baby taken away if defendant made a statement. Defendant

never requested a lawyer in Boudreau’s presence.

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¶ 43 Additionally, Boudreau explained that detectives confiscated defendant’s shoes because

there was blood on them, but did not remove his socks. Boudreau denied that defendant was

handcuffed while in the interview room at Area 1. Rather, he was secured only by the locked door.

¶ 44 5. Detective O’Brien

¶ 45 O’Brien testified that he was assigned to Area 1 in October 1992, but was not there during

the time defendant was in custody because he was attending an in-service training on those days.

Based on a review of his timecard, O’Brien testified that he did not return to Area 1 until 4:30 p.m.

on October 22, well after defendant’s confession. O’Brien testified that he brought his timecard

with him, but it was apparently not admitted into evidence.

¶ 46 6. Detective Halloran

¶ 47 Halloran testified that neither he nor anyone in his presence ever slapped, punched, or

kicked defendant. He also denied that he or anyone else ever promised defendant leniency or not

to charge Tate in exchange for defendant making a statement. According to Halloran, defendant

unbraided his own hair as he was being interviewed.

¶ 48 7. ASA Lambur

¶ 49 Finally, Lambur testified that she was assigned to Felony Review in October 1992 and took

defendant’s court-reported statement in the presence of Boudreau. She denied witnessing any

detective slap, punch, or kick defendant. Defendant never told her that he was abused by the police,

and she did not observe any injuries on him. Lambur also denied that defendant was dragged from

the room for cursing at her. Lambur further explained that defendant was “always messing with

his hair” when she spoke to him.

¶ 50 On cross-examination, Lambur testified that defendant did not say he did not want to talk

during their first meeting. He was not handcuffed, and he did not provide an alibi or deny being at

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Miller’s house. Lambur further testified that Boudreau was the only detective present when she

spoke to defendant, and that Boudreau did not interject when she took the court-reported statement.

Lambur had “no clue” what defendant meant when he said “I just wish you type it up from there”

because his court-reported statement was substantively identical to what he told her during their

first conversation.

¶ 51 8. Denial of Motion to Suppress

¶ 52 Following the testimony, the trial court denied the motion to suppress, ruling that the State

had proven the confession was “freely and voluntarily given” under the totality of the

circumstances.

¶ 53 C. Trial and Postconviction Filings

¶ 54 The case proceeded to a bench trial, after which defendant was found guilty of the murders

of Miller and Bivens, the attempted murder of Herbert, and aggravated arson. He was sentenced

to natural life in prison.

¶ 55 On appeal, defendant argued, inter alia, that his motion to suppress should have been

granted. We noted that there was conflicting evidence as to the voluntariness of defendant’s

statement, but that it was ultimately the trial court’s role to determine whether defendant or the

State’s witnesses were more credible. Because we found the trial court’s determination in favor of

the State was not unreasonable, we affirmed the denial of the motion to suppress. People v. Smith,

No. 1-94-2521 (unpublished order under Illinois Supreme Court Rule 23).

¶ 56 In 1997, defendant filed a postconviction petition raising the claim that his confession was

coerced. However, the petition was summarily dismissed at the first stage, and we affirmed that

dismissal on appeal. People v. Smith, No. 1-97-2929 (unpublished order under Illinois Supreme

Court Rule 23).

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¶ 57 In 2000, defendant again raised the coercion claim in a federal petition for a writ of habeas

corpus. However, the district court denied the petition without deciding on the voluntariness of

defendant’s confession because it determined the other evidence of his guilt was “overwhelming.”

United States ex rel. Smith v. Walls, 208 F.Supp.2d 884, 888-89 (N.D. Ill. 2002).

¶ 58 Defendant also filed a civil action against Boudreau, Halloran, O’Brien, and the City of

Chicago in 2003, which was ultimately dismissed on procedural grounds. Smith v. Boudreau, 366

Ill. App. 3d 958 (2006).

¶ 59 D. TIRC Proceedings

¶ 60 In 2011, defendant filed a claim under the Act with the TIRC. On May 20, 2013, the TIRC

issued a disposition finding “sufficient evidence of torture to conclude that the [c]laim is credible

and merits judicial review for appropriate relief.” The TIRC reasoned that defendant’s allegations

have been consistent over the years and that some details of his confession conflicted with other

physical evidence in the case. The TIRC also found defendant’s allegations “strikingly similar” to

other claims of torture, noting that TIRC records showed the Halloran, Boudreau, and O’Brien had

each been accused of abuse in at least 35 different cases, some of which involved false confessions

from defendants who were later exonerated.

¶ 61 E. Post-TIRC Evidentiary Hearing

¶ 62 1. Defendant’s Testimony

¶ 63 Based on the TIRC’s referral, defendant’s claim advanced to an evidentiary hearing before

the circuit court beginning on March 2, 2018. At the hearing, defendant called himself as his only

live witness and gave an account substantively identical to his testimony at the original suppression

hearing. To summarize, defendant testified that the detectives, primarily Halloran, hit him, kicked

him, and pulled his hair on multiple occasions while he was handcuffed in an interview room at

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Area 1. O’Brien also came into the room at some point and pulled defendant’s fingers back.

Boudreau and other detectives pressured him to make a statement to make things easier on himself,

Tate, and their unborn baby.

¶ 64 When defendant was tricked into meeting with Lambur, he cursed and “went off” on her

and initially denied any involvement in the murders. Defendant then eventually gave an

incriminating statement to Lambur with Boudreau interjecting to feed him details about the crimes.

¶ 65 2. ASA Lambur’s Testimony

¶ 66 Lambur 2 also testified consistently with her suppression hearing testimony. According to

her, defendant was not handcuffed, never cursed at her, and never denied involvement in the

murders. Lambur also denied that defendant was removed from the room by detectives. She took

defendant’s court-reported statement while Boudreau was in the room, but Boudreau did not make

any comments that were not transcribed by the court reporter. No other detectives were present at

the time. Defendant put his head in his hands and touched his hair frequently during their

interviews. Lambur never witnessed any physical abuse or threats against defendant, and he did

not complain to her about any such abuse or threats, even when she briefly spoke to him alone.

¶ 67 3. Detective Boudreau’s Testimony

¶ 68 Boudreau testified that he was assigned to Area 1 at the time of defendant’s arrest but had

previously worked under Jon Burge at Area 3 for about four months. Boudreau was part of the

team that arrested defendant and transported him to Area 1. Boudreau denied that any abuse

occurred during that trip.

2
Since the trial proceedings, Lambur married and took the surname Hynes. However, we will use
her maiden name for consistency.

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¶ 69 Boudreau’s testimony about the events at Area 1 was consistent with his suppression

hearing testimony. Defendant gave an alibi, which detectives believed to be false based on their

conversation with Tate. Detectives confiscated defendant’s shoes because they had blood on them

but they did not take his socks. Boudreau did not see anybody hit, kick, or pull defendant’s hair,

and nobody made any threats or promises to defendant regarding himself, Tate, or their unborn

baby. Defendant was not handcuffed while in the interview room. O’Brien was not present for any

of the interviews.

¶ 70 Defendant gave the recorded statement in the presence of Boudreau, Lambur, and the court

reporter. Boudreau testified that he did not suggest any answers or say anything that was not

transcribed by the court reporter.

¶ 71 On cross-examination, Boudreau acknowledged that he was reprimanded in 1991 for

obtaining a statement from a juvenile without an adult present in connection with a different case.

He also acknowledged that he asserted his fifth amendment right to remain silent when questioned

as part of Special State’s Attorney Edward Egan’s investigation into police misconduct. Boudreau

was further questioned about numerous cases in which defendants alleged police misconduct,

including the cases of Derrick Flewellen, Michael Sanders, Nevest Coleman, Kilroy Watkins,

Marcus Wiggins, Harold Hill, Johnny Plummer, Tyrone Hood, Alfonzia Neal, Jonathon Tolliver,

Emmett White, Charles Johnson, Larod Styles, LaShawn Ezell, and Troshawn McCoy. He denied

all allegations of abuse against him. However, he acknowledged that he personally agreed to pay

$7500 to settle a civil suit involving Harold Hill and Dan Young.

¶ 72 4. Detective Halloran’s Testimony

¶ 73 Halloran testified that he was Boudreau’s partner at Area 1 during October 1992. He was

previously assigned to Area 3 under Burge, but never worked with him directly.

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¶ 74 Halloran’s testimony regarding defendant’s interrogation was consistent with his account

at the suppression hearing. Halloran stated that he only had two interviews with defendant: a brief,

initial one in which defendant raised an alibi and another in which defendant admitted to the

murders after being confronted him with that the evidence the detectives had gathered. Halloran

denied that defendant or any other interviewee in the case was abused, threatened, or made

promises in exchange for a statement. Halloran testified that defendant frequently played with and

unbraided his own hair while at Area 1.

¶ 75 Halloran acknowledged that he invoked the fifth amendment in a 2008 deposition related

to a civil case filed by Harold Hill, including in response to questions about defendant. However,

Halloran explained that he subsequently answered those questions in a later deposition. Halloran

also acknowledged that, like Boudreau, he personally agreed to pay $7500 as part of the settlement

in the Hill civil case. Halloran was further asked about his behavior in numerous other cases

involving allegations of physical abuse, including the cases of Eric Gomez, Oscar Gomez, Abel

Quinones, Harold Hill, Tyrone Hood, Wayne Washington, Derrick Flewellen, Nicholas Escamilla,

George Anderson, Nevest Coleman, William Lee Hughes, John Wiler, Miguel Morales, Raphael

Robinson, Tyrone Reyna, Antonio Tollfree, Mickey Grayer, and Sheila Crosby. He denied any

wrongdoing in those cases.

¶ 76 5. Detective O’Brien’s Testimony

¶ 77 O’Brien also testified consistently with his suppression hearing testimony. Specifically,

O’Brien stated that he was never at Area 1 while defendant was in custody because he was at an

in-service training at a different location. When asked about numerous other cases, O’Brien denied

abusing Cortez Brown, Oscar Gomez, Stephen Riley, Glenn Dixon, Antonio Nicolas, George

Anderson, Jovan Deloney, Harold Hill, or Nevest Coleman.

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¶ 78 6. Pattern and Practice Evidence

¶ 79 As “pattern and practice” evidence, defendant also submitted approximately 80 exhibits

relating to allegations of abuse in other cases. These exhibits included information concerning

suspects and witnesses such as Kilroy Watkins, Marcus Wiggins, Eric Gomez, Oscar Gomez,

Harold Hill, Dan Young, Rudy Davila, David Fauntleroy, James Andrews, Cortez Brown,

Alfonzia Neal, William Ephraim, Willie Lee Hughes, John Willer, Miguel Morales, Ralphael

Robinson, Nicholas Escamilla, Michael Taylor, Mali Taylor, Kylin Little, Jason Miller, Andre

Brown, Antwan Holiday, George Anderson, Malimah Muhammad, Terrice Hartfield, Anthony

Blanch, Fred Ewing, Abel Quinones, Derrick Flewellen, Gregory Watkins, Robert Wilson,

Donnell Edwards, Josephus Jackson, Antoine Anderson, Francis Bell, Jesse Clemons, Ivan Smith,

LaMontreal Glinsey, Anthony Jakes, Johnny Plummer, Jonathon Tolliver, Steven Riley, Peter

Williams, Tyrone Reyna, Terrance Brooks, Ramone McGowan, Dorcus Withers, Harold

Richardson, Larod Styles, Terrill Swift, Lindsey Anderson, Nevest Coleman, Arnold Day, Ralph

Wilson, Enrique Valdez, Donnell Edwards, and Curtis Millsap.

¶ 80 F. Circuit Court’s Disposition

¶ 81 After hearing evidence and entertaining additional posthearing briefing, the circuit court

rendered its decision in a 51-page written order dated September 20, 2018. The court began by

noting that the parties disagreed on the applicable standard of review. The State, citing People v.

Christian, 2016 IL App (1st) 140030, argued that defendant was required to prove he was tortured,

whereas defendant, relying on People v. Whirl, 2015 IL App (1st) 111483, argued that he need

only show that the result of the suppression hearing would have been different had the interrogating

officers been impeached with new evidence suggesting they exhibited a pattern of abusive tactics.

The court agreed with defendant and adopted the Whirl standard, which it articulated as “(1)

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whether the officers who interrogated [defendant] participated in a systematic pattern of abuse in

the interrogation of other suspects, and (2) whether the officers who denied abusing [defendant]

would have been impeached as a result such that the outcome of this suppression hearing likely

would have differed.”

¶ 82 On the question of whether defendant had sufficiently established a pattern of abuse, the

court opined that defendant’s task was “a bit harder” than the defendant in Whirl’s because, while

there had already been substantial evidence to establish systemic Burge-led abuse at Area 2, the

same had not yet been established for Area 1. The court continued its analysis by stating that

defendant’s evidence, while admittedly “voluminous,” was nevertheless “lacking in depth”

because much of the evidence had “some feature that works against its persuasiveness.”

¶ 83 For example, the court found that many of the cases relied upon by defendant were in turn

supported by defendant’s allegations, thus rendering them “circular.” The court further stated that

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. Although the court found it particularly “troubling” that Boudreau

and Halloran had personally paid money to settle the civil suit involving Harold Hill and Dan

Young, the court nevertheless found that instance “ambiguous” for establishing a pattern of abuse

because there were no findings on the merits and the suit included some theories of liability that

were not premised on police torture. Additionally, the court found that the defendants who had

achieved favorable outcomes in court had prevailed for reasons other than their allegations of

torture. The court therefore concluded that defendant’s evidence “while numerous, is largely

ambiguous and not of substantial character to establish conclusively that the officers involved in

[defendant’s] interrogation participated in systematic abuse.”

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¶ 84 The court then proceeded to analyze the second prong of the Whirl standard, namely

whether the result of the suppression hearing would likely have been different had the interrogating

detectives been shown to have participated in torture in other cases. The court answered this

question in the negative, reasoning that (1) in a previous murder investigation, the same detectives

had treated defendant well and released him without charges, (2) defendant presented no evidence

of injury and his claim about his braids being pulled out was “refuted” by the State’s witness, (3)

defendant made an “odd” claim about his shoes being left in the corner of the interrogation room

that was “apparently refut[ed]” by a trial stipulation that the shoes were submitted for forensic

testing, and (4) defendant’s testimony about Boudreau coaching him on what to say was “far from

convincing” and “highly improbable.” The court also stated that none of defendant’s evidence

undercut Lambur’s testimony, which contradicted defendant on several points and was “essential

to the outcome of the suppression hearing.”

¶ 85 Finally, the court declined defendant’s invitation to draw a negative inference from the

detectives’ invocation of the fifth amendment in other cases. Specifically, the court stated that the

detectives answered all the questions in this case and that there was no indication that they would

invoke the fifth amendment if there were to be a new suppression hearing in this case. Thus, the

court determined that it was “not persuaded the numerous allegations against these detectives is

sufficient to conclude the outcome of [defendant’s] suppression hearing would differ.”

¶ 86 Defendant filed a motion to reconsider, which was denied. This appeal followed.

¶ 87 II. ANALYSIS

¶ 88 At the outset, we note that we have received two separate amicus curiae briefs in this

matter, both from organizations and individuals concerned with the integrity of the Illinois criminal

justice system. The first such brief is from a collective of community organizations, including the

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Chicago Torture Justice Center, the Chicago Torture Justice Memorials, the Chicago Alliance

Against Racism and Political Repression, the NCAAP-Westside Branch, the Judicial

Accountability Project, the Brighton Park Neighborhood Council, the Logan Square

Neighborhood Association, the Pilsen Alliance, and the Chicago DSA. The second amicus brief

was filed by a collective describing themselves as “a diverse group of individuals concerned about

the integrity of the Illinois criminal justice system,” who include “a law firm, a government

official, law professors, and leaders of law firms and professional organizations.” These amici are

Robert W. Bennett, David J. Bradford, Linda T. Coberly, Thomas F. Geraghty, Alan Mills,

Frederick J. Sperling, Curtis J. Tarver II, Rob Warden, and the law firm Loevy & Loevy. Because

both sets of amici raise essentially the same arguments as defendant, we will address their

contentions together to the extent necessary to resolve this appeal.

¶ 89 The purpose of the Act is to create “an extraordinary procedure to investigate and determine

factual claims of torture related to allegations of torture [.]” 775 ILCS 40/10 (West 2010). To

effectuate this purpose, the Act established the TIRC, which is an eight-member body composed

of a retired circuit court judge, a former prosecutor, a former public defender, a law school

professor, a criminal defense attorney, and three members of the public who are not attorneys or

affiliated with the judicial branch. Id. § 20.

¶ 90 Upon receiving a claim of torture, the TIRC hears the evidence and votes on an appropriate

disposition. Id. § 45. If at least five of the eight members conclude by a preponderance of the

evidence that there is sufficient evidence of torture, the matter is referred to the circuit court for

further review. Id. § 50.

¶ 91 Judicial review under the Act is akin to a third-stage evidentiary hearing under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). People v. Wilson, 2019 IL App

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(1st) 181486, ¶ 51. The circuit court may receive proof by affidavits, depositions, oral testimony,

or other evidence. 775 ILCS 40/50 (West 2010). Like in other forms of postconviction

proceedings, the Illinois Rules of Evidence do not in apply in cases of TIRC referrals so that

defendants may present greater evidence than they could have at trial. People v. Gibson, 2018 IL

App (1st) 162177, ¶¶ 128. Ultimately, the Act provides defendants a “new procedural device” for

proving their claims of police torture. People v. Johnson, 2022 IL App (1st) 201371, ¶ 98.

¶ 92 Importantly, the circuit court’s purpose in considering a TIRC referral is not to determine

the ultimate issue of whether the defendant’s confession was coerced. People v. Whirl, 2015 IL

App (1st) 11483, ¶ 80. Rather, the question is whether the outcome of the original suppression

hearing would likely have been different if the officers who denied torturing the defendant had

been subject to impeachment based on newly discovered evidence that those officers engaged in a

pattern of abusive tactics in other cases. People v. Galvan, 2019 IL App (1st) 170150, ¶ 68.

¶ 93 When reviewing a circuit court’s decision upon a TIRC referral, this court employs a

different standard of review for issues of law and fact. People v. Tyler, 2015 IL App (1st) 123470,

¶ 195. We defer to the circuit court’s findings of fact unless they are against the manifest weight

of the evidence, which occurs only where the opposite conclusion is “clearly evident, plain, and

indisputable.” Id. However, we review the circuit court’s rulings on questions of law de novo,

meaning that we owe no deference to the circuit court and perform the same analysis as the trial

judge would. Id.

¶ 94 A. Defendant’s Burden

¶ 95 Initially, the parties dispute whether the circuit court applied the correct legal standard in

two ways. First, defendant and amici contend that the court erroneously inflated his burden under

the Act, primarily focusing on the court’s statement that the new evidence was “not of substantial

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character to establish conclusively that the officers involved in [defendant’s] interrogation

participated in systemic abuse.” However, the court’s use of the word “conclusively” in this

context appears to derive from its earlier reference to People v. Patterson, 191 Ill. 2d 93, 139

(2000), a pre-Act case stating that a defendant is entitled to postconviction relief based on

allegations of torture only if his newly discovered evidence is of “such conclusive character that it

will probably change the result upon retrial[.]” See also People v. Coleman, 2013 IL 113307, ¶ 96

(in the postconviction context, “conclusive” means the new evidence would probably change the

result of new proceeding). Additionally, the circuit court explicitly rejected the notion that

defendant was required to prove he was tortured, instead adopting the Whirl standard that, in the

court’s words, involved determining “(1) whether the officers who interrogated [defendant]

participated in a systematic pattern of abuse in the interrogation of other suspects, and (2) whether

the officers who denied abusing [defendant] would have been impeached as a result such that the

outcome of this suppression hearing likely would have differed.” Thus, it appears that the court

understood that defendant was not required to definitively prove that he was tortured.

¶ 96 Second, the State contends that defendant incorrectly argues that he need only establish

that the detectives “may have” participated in systematic abuse. The State points out that defendant

derives this “may have” language from People v. Harris, 2021 IL App (1st) 182172, ¶ 50, which

states that “whether any of the officers who interrogated [the] defendant may have participated in

systematic interrogation abuse” is but a relevant inquiry to the main question of “whether the

outcome of defendant’s suppression hearing would have been different if the officers who denied

using physical coercion had been subject to impeachment based on defendant’s evidence showing

a pattern and practice of police abuse.” See also Whirl, 2015 IL App (1st) 11483, ¶ 80 (the question

is whether the suppression hearing would have had a different result due to “impeachment based

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No. 1-20-1256

on evidence revealing a pattern of abusive tactics”). We see this as a distinction without a

difference. As the circuit court acknowledged, a defendant will of course not be able to show the

suppression hearing would likely have gone differently without some evidence of a pattern of

abuse in other cases. But as Harris itself explains, when determining whether new evidence was

powerful enough to have likely changed the result of the hearing, “ ‘[p]robability, not certainty, is

the key.’ ” Harris, 2021 IL App (1st) 182172, ¶ 57 (quoting Coleman, 2013 IL 113307, ¶ 97).

¶ 97 B. Pattern and Practice Evidence

¶ 98 With these principles in mind, we agree with defendant and amici that the circuit court at

least improperly weighed the new documentary evidence presented in this case. 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 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. Gibson, 2018 IL App (1st) 162177, ¶ 136 (making it harder to succeed under the Act

than under other forms of postconviction proceedings would “take the ‘extraordinary’ out of the

‘extraordinary procedure to investigate and determine factual claims of torture’ that the General

Assembly created” in passing the Act); see also Wilson, 2019 IL App (1st) 181486, ¶ 52 (“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.”). Instead, all that is

necessary under the Act is for the defendant to show that the subject officers would have been

impeached with evidence of torture such that the result of the suppression hearing would likely

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No. 1-20-1256

have been different. People v. Galvan, 2019 IL App (1st) 170150, ¶ 68 (remanding for a new

suppression hearing despite the fact that none of the other defendants had secured a court ruling

that their confession was the product of torture). Again, probability, rather than certainty, is the

key, as the court must in effect predict what the trial judge would have done if faced with the new

evidence. Id. ¶ 67.

¶ 99 In our view, the allegations produced by defendant are more than sufficient and give us

great pause. Even if largely unproven in courts of law, the sheer number of allegations and the

similarities among them are disconcerting to say the least. Moreover, although they are not

definitive findings by a court on the merits, many of the documents produced by defendant go

somewhat beyond bare allegations. For example, defendant has shown numerous cases in which

individuals claiming abuse by Boudreau or O’Brien have received payment from the City of

Chicago under the Reparations for Burge Torture Victims Ordinance (Chicago Ordinance No.

SO2015-2687 (approved May 6, 2015)). See People v. Plummer, 2021 IL App (1st) 200299, ¶ 94

(fact that reparations were paid “gave credibility” to allegations of torture against Boudreau and

another detective). Similarly, there was evidence of multiple civil settlements in cases where

defendants alleged torture against the subject detectives, including some in which the defendants

were later exonerated. While not definitive proof, we believe that this evidence rises above the

level of mere allegations and suggests a pattern of torture. Indeed, even the circuit court

acknowledged that it was “troubling” that Halloran and Boudreau had personally agreed to pay

money to settle misconduct allegations. More troublingly, defendant produced evidence 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. Although the circuit court discounted these cases

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No. 1-20-1256

because the defendants were successful in court for reasons other than their torture claims, the fact

remains that they confessed to crimes under alleged torture but were nevertheless later vindicated.

Contrary to the circuit court’s conclusion, we find defendant has produced sufficient evidence of

a pattern on physical abuse by the detectives in question.

¶ 100 C. Impact on Outcome of the Suppression Hearing

¶ 101 We now turn to the second relevant inquiry under Whirl, namely whether the outcome of

the suppression hearing likely would have been different had the detectives been impeached with

the new evidence of torture. We answer this question in the affirmative.

¶ 102 The circuit court identified several reasons why it believed the outcome of the suppression

hearing would likely not have changed, many of which boil down to aspects of defendant’s

testimony being “refuted” in one way or another by the State’s witnesses. However, many of the

points on which defendant’s testimony was contradicted by the State’s witnesses did not go

directly to his allegations of torture, and are therefore only marginally relevant to the ultimate issue

of whether the new pattern and practice evidence would likely have changed the result of the

suppression hearing. Whirl, 2015 IL App (1st) 111483, ¶ 84; see also Galvan, 2019 IL App (1st)

170150, ¶ 74 (circuit court’s finding that defense witnesses lacked credibility was “not relevant to

the issue of whether Detective Switski’s credibility might have been impeached as a result of the

new evidence that Detective Switski participated in systematic abuse”). Additionally, we find it

difficult to image 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 suppression hearing and has apparently yet to be specifically litigated on the merits in

defendant’s case. Further, to the extent the circuit court relied on ASA Lambur’s credibility as

being “essential” to the outcome of the suppression hearing, we note that her account gave little

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No. 1-20-1256

insight into defendant’s allegations of torture. To be sure, ASA Lambur contradicted defendant’s

testimony in several respects. However, she was not alleged to have witnessed the torture. Thus,

ASA Lambur’s testimony was extremely limited in its ability to “refute” the allegations relevant

to this appeal. See Gibson, 2018 IL App (1st) 162177, ¶¶ 97-98 (testimony of an ASA and

detectives who were not present for the alleged torture could not refute the defendant’s claims of

physical abuse).

¶ 103 What is important, however, is that defendant’s allegations of torture have remained

remarkably consistent since he first made them in the 1990s. Wilson, 2019 IL App (1st) 181486,

¶ 64 (reliability of the defendant’s torture allegations was boosted where they “have remained

substantially the same for more than 30 years”); see also Gibson, 2018 IL App (1st) 162177, ¶ 120

(the defendant’s “core allegations have remained the same” despite some variation in other

details). Indeed, both the circuit court and the State recognize that the consistency of defendant’s

allegations weighs in his favor.

¶ 104 Additionally, despite the State’s arguments to the contrary, we find that defendant’s

allegations are strikingly similar to the other claims contained in his new evidence. Patterson, 192

Ill. 2d at 144-45 (new evidence of torture would likely change the result upon retrial where the

defendant’s allegations were consistent over time and “strikingly similar” to other claims of torture

against the same officers); Harris, 2021 IL App (1st) 182172, ¶¶57-60 (outcome of the suppression

hearing likely would have been different where the defendant “consistently alleged that his

confessions were coerced, and his allegations of coercion [we]re comparable to the acts of coercion

set forth in the new evidence”). For instance, defendant’s new evidence contained numerous

allegations that the same detectives identified by defendant slapped and hit others while they were

handcuffed to a ring on the wall or other object. The new evidence also showed that multiple

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No. 1-20-1256

defendants alleged that the detectives pulled their hair or their fingers back, which defendant has

consistently alleged happened to him. Further, defendant’s new evidence details at least four other

individuals who, like defendant, have claimed the detectives threatened consequences against their

significant others, children, or both. Because defendant’s allegations of torture have been

consistent and are strikingly similar to the allegations of others, we cannot say that defendant’s

new evidence would not likely change the result in a new suppression hearing.

¶ 105 D. Remedy

¶ 106 Having determined that the circuit court erred in denying defendant relief, we now turn to

what remedy is appropriate. Defendant contends that we should suppress his statement outright

without the need for a new suppression hearing because it is apparent that the State would be

unable to prove his confession was voluntary on remand. The State counters by arguing that the

only relief this court may enter is a new suppression hearing. However, the State cites to no

relevant authority for this proposition.

¶ 107 We agree with defendant that outright suppression is a possible remedy under the Act. In

Wilson, we examined the purpose and legislative history of the Act, concluding that the Act was

“intended to definitively and expeditiously decide whether a petitioner was tortured and provide

appropriate relief.” Wilson, 2019 IL App (1st), ¶¶ 48-50. We stated that the Act authorized this

court to award “a variety of remedies” in order to effectuate this purpose, including remedies

beyond those allowed under the Post-Conviction Hearing Act. Id. ¶¶ 48, 52. We specifically

identified that among this “variety of remedies” was the power to order the suppression of a

confession. Id. ¶ 52.

¶ 108 However, although we have the authority to order outright suppression, we do not believe

it is the appropriate remedy in this case. Generally, when faced with a motion to suppress a

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statement, the State bears the initial burden of proving the statement was voluntary by a

preponderance of the evidence. People v. Richardson, 234 Ill. 2d 233, 254 (2009). If the State

makes this prima facie case, the burden shifts to the defendant to produce evidence that the

statement was involuntary. Id. Finally, if the defendant satisfies his burden, the burden then reverts

to the State to prove the statement was in fact voluntary. Id.

¶ 109 Because we have found that defendant has shown that new evidence would likely have

resulted in suppression, the State will have the burden of proving the confession was voluntary.

Wilson, 2019 IL App (1st) 181486, ¶ 53. However, we cannot go so far as defendant to conclude

that the State could not carry its burden under any circumstances on remand. Although, as

explained, defendant’s credibility was of only “marginal relevance” to the central issue at the post-

TIRC evidentiary hearing (Whirl, 2015 IL App (1st) 111483, ¶ 84), it becomes more important at

new suppression hearing.

¶ 110 To be sure, the circuit court in this case identified several reasons to be skeptical of

defendant’s credibility that were not in and of themselves against the manifest weight of the

evidence. For example, there was conflicting evidence as to the presence of O’Brien. Although

defendant testified that O’Brien was present and participated in the torture, the State’s witnesses

testified that O’Brien was not there, which was apparently corroborated by a copy of O’Brien’s

timecard for the relevant days. Additionally, the State’s witnesses gave accounts that were

essentially consistent with each other and contradicted defendant in several respects. All three

detectives strongly denied abusing defendant. Halloran and Boudreau both testified that they only

interviewed defendant twice, including once where defendant admitted to the murders. This varied

greatly from defendant’s account that he refused to talk on numerous occasions despite repeated

torture. As previously noted, the testimony of ASA Lambur also contradicted defendant’s on

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No. 1-20-1256

several points, including whether he initially denied involvement in the murders and whether

Boudreau fed him details to include in the confession. Thus, although defendant’s new evidence

would likely have a significant impact on a suppression hearing, we do not agree with defendant

that there is no scenario in which the State can prove the confession was voluntary. We will

therefore not order outright suppression. However, because we believe defendant has produced

sufficient impeachment evidence of torture, we find defendant is entitled to a new suppression

hearing.

¶ 111 As a final matter, although we commend the circuit court’s thorough analysis of the issues

in this case, we find 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.

See Harris, 2021 IL App (1st) 182172, ¶ 62 (reassigning on remand where the original judge

“expressed a tendency to affirm the officers’ credibility while giving little weight to [the]

defendant’s new evidence”); see also People v. Serrano, 2016 IL App (1st) 133493, ¶ 45 (this

court has the authority to reassign a matter to a new judge on remand). Accordingly, we order that

the case be reassigned to a new judge on remand.

¶ 112 III. CONCLUSION

¶ 113 For the reasons stated, we the judgment of the circuit court is reversed, and the matter

remanded for a new suppression hearing, and if necessary, a new trial.

¶ 114 Reversed and remanded with directions.

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