2022 IL App (1st) 182623-U
No. 1-18-2623
August 8, 2022
First Division
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
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County, Illinois
)
v. ) No. 97 CR 15419 (02)
)
CLIFTON CARROLL, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
JUSTICE WALKER delivered the judgment of the court.
Presiding Justice Hyman concurred in the judgment. Justice Coghlan dissenting.
ORDER
¶1 Held: Where a defendant convicted of murder presents affidavits of witnesses attesting
that defendant did not participate in the murder, and the evidence supports a finding
that he acted with due diligence, the court must advance his postconviction petition
based on allegations of actual innocence to an evidentiary hearing. Where the State
contends defense counsel should have found one of the witnesses by the time of
trial, the court should hear evidence on the defendant’s claim he received
ineffective assistance of counsel.
No. 1-18-2623
¶2 Following a jury trial, defendant Clifton Carroll was found guilty of the first degree murder
of Michael Williams, and he was sentenced to 50 years in prison. This court affirmed his conviction
and sentence on direct appeal in People v. Carroll, No. 1-01-3184 (June 30, 2004).
¶3 Clifton now appeals the second-stage dismissal of his postconviction petition and asks this
court to remand for a third stage evidentiary hearing. Clifton attached to his petition affidavits from
two witnesses to the murder who stated unequivocally that Clifton did not participate in the murder.
Clifton argues that (1) the trial denied him due process rights to a fair determination of his petition,
(2) the affidavits constitute new evidence of actual innocence, (3) his trial counsel provided
ineffective assistance of counsel by failing to present the testimony of one of the two witnesses at
his trial, and (4) his prior postconviction counsel unreasonably conceded that trial counsel was not
ineffective for failing to call a key witness. For the following reasons, we remand for a third-stage
hearing on the postconviction petition.
¶4 I. BACKGROUND
¶5 On May 4, 1997, around 1:30 a.m., Michael Williams of the Black Souls street gang walked
out of the Three Brothers M.C. lounge on the west side of Chicago. Two members of the Gangster
Disciples, Johnell Elem and Derrick Wright, accompanied Williams. Johnny Conwell and a second
man came out from behind a nearby truck and fired several gunshots, killing Williams.
¶6 Elem spoke to police minutes after the shooting. He described the shooters as two black
men, 5'9" in height, wearing hooded sweatshirts over their heads. Elem did not tell police he
recognized either of the men. One day later, on May 5, 1997, a passenger in a van fired gunshots
at Wright and Penny Simmons, killing Simmons.
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¶7 Elem viewed a police lineup on May 12, 1997. He identified both Conwell and Clifton,
both members of the New Breeds street gang, as the two men who shot Williams. Prosecutors
charged Conwell and Clifton with the murder of Williams. In a separate indictment, prosecutors
charged Conwell and Clifton with the murder of Simmons. At the trial on the charge of murdering
Simmons, Wright testified he saw Conwell and Clifton shoot Simmons. The prosecution advanced
the theory that Conwell and Clifton murder of Simmons related closely to the murder of Williams.
In response to the prosecution’s questions, Wright testified that he saw Conwell shoot Williams,
but he could not see the second person who shot Williams well enough to make an identification.
The court found Conwell guilty of murdering Simmons, but a jury found the evidence insufficient
to convict Clifton.
¶8 At the trial against Clifton for the murder of Williams, Elem identified Conwell and Clifton
as the shooters. He recognized them at the scene, but did not tell police their names because he
planned to kill them himself. He identified them in the police lineup because he abandoned the
plan to kill them after their arrest.
¶9 The prosecution’s other eyewitness, Rhusheena Fairman, testified that she was in the Three
Brothers lounge when Williams left around 1:30 a.m. on May 4, 1997. She heard gunshots, and
then Williams ran back into the lounge and collapsed. She saw Conwell and Martin Crane outside
the lounge. She did not see her cousin, Clifton.
¶ 10 Fairman testified that she did not remember what she said to the grand jury. The court
permitted the prosecution to introduce a transcript of Fairman’s testimony to the grand jury as
substantive evidence. Fairman told the grand jury she was outside the lounge when she saw
Conwell and Clifton come out of a building and shoot Williams. At the trial Fairman, explained
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No. 1-18-2623
she said to the grand jury what police wanted her to say. She testified, “I was terrified when [police]
came and got us because they were telling me, my mother that they could lock both of us up if I
didn’t testify.”
¶ 11 Detective Allen Jaglowski testified his investigation into Williams’s death led him to look
for Conwell, Clifton, and a maroon 1983 Cutlass. He went to an apartment where police spotted
through an open door a .44 caliber revolver in plain view sitting on the windowsill. After entering
the unoccupied apartment, police found two .38 caliber revolvers on the floor and recovered
colostomy bags, vials of medication bearing Crane's name, and a police bulletin. The parties
stipulated that defendant had a colostomy before November 4, 1996, and that he used colostomy
bags throughout May of 1997. The police department’s firearms examiner concluded that the guns
found in the apartment did not discharge the bullets found in or near Williams.
¶ 12 Police Officer John Rawski testified that on May 12, 1997, four blocks from the apartment
where Jaglowski found guns and colostomy bags, he saw Conwell driving, and in a nearby
gangway, he saw Clifton. He followed Clifton and found in a garage a 1983 Cutlass wrapped in
paper with a coat of paint primer on it. One of the wheels was off and the three other wheels were
non-matching.
¶ 13 Clifton’ niece, Tiffany Carroll, testified that she, her grandmother, her three cousins, and
Clifton, all stayed home on the night of May 4, 1997, to May 5, 1997. Tiffany stayed up until 3
a.m. watching television, and Clifton did not leave the house.
¶ 14 The jury found Clifton guilty of the first degree murder of Williams. The court sentenced
him to 50 years in prison. The appellate court affirmed the conviction and sentence. Carroll, No.
1-01-3184.
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No. 1-18-2623
¶ 15 Clifton filed a postconviction petition on June 30, 2006. The trial court dismissed the
petition, but this court reversed and remanded for further proceedings. People v. Carroll, 2014 IL
App (1st) 112531-U. On December 21, 2017, postconviction counsel filed an amended
postconviction petition, supported by affidavits from Wright, Conwell, Fairman, and Marc Kadish,
Clifton’s trial attorney.
¶ 16 Wright said in one affidavit, “I saw two shooters shoot up over a car and shoot at Michael
Williams. I identified Johnny Conwell as one of the shooters. I did not identify Clifton Carroll,
whom I know as ‘Bambi,’ as the other shooter because I know for a fact that Bambi was not
involved in the shooting. Bambi is tall, and the second shooter was shorter than Bambi.” In a
separate affidavit he added:
“Because I grew up with Bam, I know how he looks.
*** Bam was not one of the shooters on May 4,1997, neither was Bam present.
*** If Bam was one of the shooters, I would have said it was Bam.”
Conwell swore, “I along with Marvin Cra[ne] shot Michael Williams *** on May
4, 1997.”
¶ 17 In her affidavit, Fairman said she was inside by the door of Three Brothers when she saw
Conwell shoot Williams. She ran back from the door, and she did not see the second shooter.
Fairman stated: police “kept insisting after they talked with other's that ‘Bam’ was the other shooter
because he was in a different gang than Michael.” She explained her signature on the statement
police prepared:
“The police threatened me with being charged with murder if they found out that
‘Bam’ had did it and that I didn't tell them ***.
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No. 1-18-2623
I was scared from Michael being shot and the possibility of being shot as well in
addition to how the police were threat[en]ing and treating me.”
¶ 18 Kadish stated in his affidavit,
“I did not believe Derrick Wright would be helpful as a defense witness because he
was difficult to locate.
*** Also, I was uncertain how Derrick Wright would testify since he was a member
of an opposing gang. If the State had called him, I was prepared to cross-examine
him.
*** Many years after trial I learned that Derrick Wright is unequivocal that Clifton
Carroll was not one of the shooters or with the shooters.”
¶ 19 Clifton argued, in his amended postconviction petition, that the evidence showed he did
not actually take part in the murder of Williams, and Kadish provided ineffective assistance by
failing to present Wright as a defense witness. At the hearing on the State’s motion to dismiss the
postconviction petition, the judge stated:
“[Clifton] had pro bono counsel from one of the top law firms in Chicago, Mayer
Brown. They were doing this pro bono.
You are telling me that they checked out the availability of these witnesses and for
obvious reasons didn't call either of these witnesses and somehow his constitutional
rights were violated?
***
*** [H]e was represented by pro bono counsel that did a conscientious job. They
identified and located the witness that you are talking about, Mr. Wright.
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No. 1-18-2623
Mr. Wright was interviewed by them and for what appeared to be very clear, correct
reasons was not put on the witness stand.”
¶ 20 The court also held that the affidavits of Wright, Conwell, Fairman, and Kadish had no
new evidence. The court dismissed the postconviction petition, and Clifton now appeals.
¶ 21 II. ANALYSIS
¶ 22 On appeal, Clifton argues (1) he made a substantial showing of actual innocence; (2)
Kadish provided ineffective assistance by failing to call Wright as a witness; (3) postconviction
counsel provided ineffective assistance when she conceded that Kadish acted in accord with
professional standards; and (4) the trial court improperly relied on evidence outside the record to
decide that Kadish provided effective assistance. We review de novo the dismissal of a
postconviction petition at the second stage of postconviction proceedings. People v. Coleman, 183
Ill. 2d 366, 385, 233 Ill. Dec. 789, 701 N.E.2d 1063 (1998).
¶ 23 Actual Innocence
¶ 24 Our supreme court established standards for reviewing claims of actual innocence raised
in a postconviction petition.
“Substantively, in order to succeed on a claim of actual innocence, the
defendant must present new, material, noncumulative evidence that is so conclusive
it would probably change the result on retrial. [Citation.] New means the evidence
was discovered after trial and could not have been discovered earlier through the
exercise of due diligence. [Citation.] Material means the evidence is relevant and
probative of the petitioner's innocence. [Citation.] Noncumulative means the
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No. 1-18-2623
evidence adds to what the jury heard. [Citation.]" People v. Coleman, 2013 IL
113307, ¶ 96, 996 N.E.2d 617.
¶ 25 Clifton contends that Wright’s affidavit and Conwell’s affidavit constitute newly
discovered evidence of actual innocence. Wright admitted that he could not identify the second
shooter who accompanied Conwell, but he knew Clifton and he could see well enough to know
the second shooter was not Clifton, just from the second shooter’s height and body shape.
¶ 26 The State claims the evidence does not count as newly discovered because Clifton would
have discovered it before trial if he acted with due diligence. We cannot reconcile the State’s
argument on this issue with its argument in the same brief that Kadish met all professional
standards and provided effective assistance of counsel. Kadish admitted in his affidavit that he did
not know before trial Wright would testify that he knew the second shooter was not Clifton. “[A]
reasonably diligent defendant may rely on his attorney to conduct his defense ***. An attorney
provides ineffective assistance when he fails to conduct an adequate investigation into the evidence
concerning the charges against his client.” People v. Mitchell, 2012 IL App (1st) 100907, ¶ 52,
972 N.E.2d 1153. If Kadish, acting with due diligence, failed to discover Wright’s potential
testimony, that testimony qualifies as newly discovered evidence. If the evidence does not count
as newly discovered, then Kadish’s failure to find it supports a finding he provided objectively
unreasonable assistance. We hold that by asserting that Kadish met professional standards, the
State has conceded the evidence could support a finding that Wright’s affidavit constitutes newly
discovered evidence.
¶ 27 Conwell’s statement includes his confession to murder. At the time of Clifton’s trial,
Conwell faced charges for that murder. He likely would have asserted his fifth amendment
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No. 1-18-2623
privilege if Clifton had called him as a witness at Clifton’s trial. The reasoning of People v.
Edwards, 2012 IL 111711, ¶ 38, applies: “While petitioner obviously knew of [the affiant] at the
time of trial, the evidence in [the] affidavit apparently was nevertheless unavailable at trial
(citation), and the evidence thus qualified as newly discovered. [The affiant] was a codefendant,
with a fifth amendment right to avoid self-incrimination. No amount of diligence could have forced
him to violate that right if he did not choose to do so.” (Internal quotation marks omitted).
¶ 28 Thus, Conwell’s affidavit and Wright’s affidavit count as newly discovered evidence. No
eyewitness testified at Clifton’s trial, and they knew the second shooter was not Clifton, so the
new evidence is not cumulative of the evidence at trial. To meet the requirements for a claim of
actual innocence, Clifton must also allege facts showing the new evidence is "of such conclusive
character that it would probably change the result on retrial" Edwards, 2012 IL 111711, ¶ 40. Our
supreme court explained:
“Ultimately, the question is whether the evidence supporting the postconviction
petition places the trial evidence in a different light and undermines the court's
confidence in the judgment of guilt. [Citation.] The new evidence need not be
entirely dispositive to be likely to alter the result on retrial. [Citation.] Probability,
rather than certainty, is the key in considering whether the fact finder would reach
a different result after considering the prior evidence along with the new evidence.”
People v. Robinson, 2020 IL 123849, ¶ 48.
¶ 29 At trial, Elem was the only witness who identified Clifton as the second shooter. The State
also presented a transcript of Fairman’s testimony to the grand jury, but she recanted that testimony
and explained that police threats led her to lie to the grand jury. No physical evidence tied Clifton
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No. 1-18-2623
to the murder scene or the guns that killed Williams. Police officers’ testimony supported a
conclusion that Clifton belonged to the same gang as Conwell and he helped Conwell’s efforts to
conceal his guilt, but the officers’ testimony does not show that Clifton participated in the shooting.
Against the weak evidence supporting the conviction, Wright’s testimony furnishes especially
credible evidence exonerating Clifton. Wright testified against Clifton in the trial for the murder
of Simmons, and Wright has not recanted his identification of Clifton in that murder. Wright
belonged to a gang in conflict with Clifton’s gang. The prosecution has not suggested any motive
for Wright to implicate Clifton in the murder of Simmons while falsely exonerating Clifton for the
murder of Williams.
¶ 30 The State in its brief suggests Wright’s and Conwell’s testimony does not exonerate Clifton
because Clifton might have been involved as a third shooter, present at the scene along with
Conwell and Crane. However, Elem at trial and Fairman in her testimony to the grand jury both
stated they saw only two shooters at the scene, and no evidence supports the State’s new theory
that Conwell, Crane, and Clifton together murdered Williams.
¶ 31 We find that Conwell’s affidavit stating that Crane, not Clifton, accompanied Conwell and
fired shots at Williams on May 4, 1997, considered together with Wright’s affidavit stating the
second shooter was shorter than Clifton, constitute material, non-cumulative, newly discovered
evidence of actual innocence that places the trial evidence in a different light and undermines the
court's confidence in the judgment of guilt. We reverse the dismissal of Clifton’s postconviction
petition and remand for a third-stage hearing on his claim of actual innocence.
¶ 32 Ineffective Assistance of Counsel
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¶ 33 Clifton argues Kadish provided ineffective assistance of counsel when he failed to call
Wright as a witness at trial. Kadish also failed to find out that Wright would testify he knew the
second shooter was not Clifton. Our supreme court has stated that to show ineffective assistance
of counsel, Clifton must allege facts supporting a finding Kadish’s work fell below an objective
standard of reasonableness, and a finding of “a reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different.” People v. Patterson, 192 Ill. 2d 93, 107,
735 N.E.2d 616 (2000).
¶ 34 Kadish admitted in his affidavit that, at the time of trial, he did not know Wright would
testify that he saw the second shooter well and saw the shooter well enough to testify the second
shooter was not Clifton. The State argued in response to the actual innocence claim that the failure
to discover the potential testimony resulted from a lack of due diligence. Hence, the State has
effectively conceded that Clifton has presented adequate support for his claim of ineffective
assistance. Kadish’s work fell below an objective standard of reasonableness.
¶ 35 In addition to the State conceding, the weak evidence against Clifton serves to show that if
not for counsel’s errors, Clifton had a reasonable chance of achieving a better result. Thus, Clifton
has adequately supported his claim for ineffective assistance of counsel, and the claim should
advance to the third stage of postconviction proceedings.
¶ 36 Clifton also argues he received ineffective assistance of postconviction counsel. He asks
this court to reverse the dismissal of his postconviction petition. As we have already found cause
to advance all allegations of the amended postconviction petition to the third stage of
postconviction proceedings, we see no need to address separately the claim he received ineffective
assistance of postconviction counsel.
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¶ 37 Judicial Bias
¶ 38 Finally, Clifton argues that the judge’s comments at the postconviction hearing showed
bias against Clifton’s arguments concerning ineffective assistance of counsel because the judge
demonstrated an unwillingness to believe that attorneys from Mayer, Brown could have been
ineffective. Clifton asks us to remand with directions to assign a different trial judge to hear the
third stage proceedings. “To obtain a remand to a new judge, a defendant must show something
more than simply that the judge presided over the defendant’s earlier trial. [Citation.] A defendant
can show something more by demonstrating *** ‘prejudice, predilections or arbitrariness.”
(internal quotation marks omitted) People v. Reyes, 369 Ill. App. 3d 1, 25 (2006). In Reyes, the
appellate court directed the appointment of a different judge for proceedings on remand because
the trial judge’s findings, without evidence, “essentially decided *** the entire case.” Id. at 26.
¶ 39 Here, at the hearing on the State’s motion to dismiss the postconviction petition, the judge
stated:
“[Clifton] had pro bono counsel from one of the top law firms in Chicago, Mayer
Brown. They were doing this pro bono.
You are telling me that they checked out the availability of these witnesses and for
obvious reasons didn't call either of these witnesses and somehow his constitutional
rights were violated?
¶ 40 The dissent would find “there is nothing in the record that supports” a finding that the case
should be assigned to a new judge on remand. Apparently, the dissent chooses to disregard the
judge’s assertions about Mayer Brown being “one of the top law firms in Chicago.” We strongly
disagree with the dissent’s position because the judge’s comment shows the judge’s unwillingness
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to countenance a claim that Clifton may have received ineffective assistance of counsel from
Mayer Brown. We find that the Judge’s comment demonstrated bias in favor of the Mayer Brown
law firm.
¶ 41 Supreme Court Rule 366(a)(5) permits a reviewing court, in its discretion, to make any
order or grant any relief that a particular case may require. Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1,
1994). "This authority includes the power to reassign a matter to a new judge on remand."
Eychaner v. Gross, 202 Ill. 2d 228, 279, 779 N.E.2d 1115, (2002). We recognize that finding a
judge bias is a decision that should not be made lightly. Eychaner v. Gross, 202 Ill. 2d 228, 279-
80, 779 N.E.2d 1115 (2002). Nevertheless, out of an abundance of caution, we remand this case
with instructions that the presiding judge of the criminal division assign further proceedings on
defendant’s postconviction petition to a different trial judge.
¶ 42 III. CONCLUSION
¶ 43 Clifton sufficiently supported his claims of actual innocence and ineffective assistance of
counsel. We reverse the dismissal of his postconviction petition and advance the case for a third
stage evidentiary hearing. Because the judge’s comments suggest prejudgment concerning
Clifton’s claim of ineffective assistance, we direct that the presiding judge assign the case to a
different judge on remand.
¶ 44 Reversed and remanded with instructions.
¶ 45 JUSTICE COGHLAN, concurring in part and dissenting in part:
¶ 46 I concur in the judgment that Carroll is entitled to a third stage evidentiary hearing on his
actual innocence claims. I disagree that Carroll made a substantial showing that he received
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ineffective assistance of counsel at trial. I also disagree that this matter should be assigned to a
different judge on remand.
¶ 47 To show ineffective assistance of counsel the defendant must allege facts showing
counsel’s representation was both objectively unreasonable and that he was prejudiced by
counsel’s deficiency. Strickland v. Washington, 466 U.S. 668, 693 (1984) In establishing that his
counsel’s performance was deficient under Strickland, “a defendant must overcome a strong
presumption that, under the circumstances, counsel’s conduct might be considered sound trial
strategy.” People v. Houston, 226 Ill. 2d 135, 144 (2007). In view of counsel’s reasonable
explanation for his decision not to call Wright to testify at trial, Carroll failed to overcome this
“strong presumption.”
¶ 48 On May 12, 1997, Carroll and Johnny Conwell were “arrested for participation in three
distinct shootings of Penny Simmons, Senica Elem, and Michael Williams,” in which “[t]he State
sought the death penalty.” Carroll was convicted of Elem’s murder after a bench trial, but that
finding was “changed to not guilty” after “a hearing on a Motion for a New Trial.” Carroll was
found not guilty of the murder of Penny Simmons after a jury trial. A jury convicted Carroll of the
murder of Michael Williams in this case.
¶ 49 Carroll’s amended post-conviction petition is supported by an affidavit from Marc Kadish,
the lead counsel of Carroll’s three attorney defense team. At the time he began his representation,
Kadish “was the Director of Pro Bono Activities and Litigation Training and part of the
administration of the law firm of Mayer Brown and a member of the Illinois Capital Trial Bar.”
¶ 50 During the June 27, 2001, hearing on Carroll’s motion for a new trial in this case, Kadish
advised the trial court that the defense had located Wright and taken a statement from him before
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trial, but thereafter “lost” him and “could not find him again because he did not want to be found,
and we still have not been able to find him.” When Kadish’s investigator interviewed Wright
before trial, he “was evasive.” Many years later, Wright became “unequivocal that Clifton Carroll
was not one of the shooters or with the shooters.” As Kadish explained in his 2017 affidavit, he
“did not believe [Wright] would be helpful as a defense witness because he was difficult to locate”
and he “was uncertain how [Wright] would testify because he was a member of an opposing gang.”
Wright’s two affidavits confirm that his gang was “into a dispute with an opposing gang,” he and
Carroll were in different gangs, and he had “implicated [Carroll] in the murder of Penny
Simmons.”
¶ 51 It is well settled that decisions “concerning what witnesses to call and what evidence to
present on a defendant’s behalf are viewed as matters of trial strategy.” People v. Munson, 206 Ill.
2d 104, 139 (2002). “Such decisions enjoy a strong presumption that they reflect sound trial
strategy, rather than incompetence [citation] and are, therefore, generally immune from claims of
ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 378 (2000). Unlike situations
where “no meaningful adversarial testing was conducted,” the record in this case establishes that
Wright was a reluctant gang-related witness who had implicated Carroll in another murder. Id.
Under these circumstances, Kadish’s decision not to call Wright as a witness was “sound trial
strategy.” Id.
¶ 52 While Wright’s 2006 affidavit asserts that he knew Carroll was not the second shooter
because “[Carroll] is tall, and the second shooter was shorter than [Carroll],” Wright never
identified the second shooter, and his 2017 affidavit acknowledges that “[i]t was dark and the
shooters were wearing black hoodies” and “[t]he shooters’ skin complexion appeared to be dark
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like other males who were in an opposing gang.” Although Wright claims that “if [he] had been
subpoenaed [he] would have come to court and told the truth,” and did not “remember speaking to
[Carroll]’s defense attorney or a defense investigator,” he does not deny doing so.
¶ 53 The majority asserts that “if not for counsel’s errors, Clifton had a reasonable chance of
achieving a better result.” However, “[s]atisfying the prejudice prong necessitates a showing of
actual prejudice, not simply speculation that defendant may have been prejudiced.” People v.
Patterson, 2014 IL 115102, ¶ 81. As this court noted on direct appeal, “the uncontroverted
testimony of Elem alone provides a sufficient basis to convict [Carroll].” People v. Carroll, No. 1-
01-3184 at 17 (June 30, 2004) Carroll failed to show “that counsel’s deficient performance
rendered the result of the trial unreliable or the proceeding fundamentally unfair.” People v.
Richardson, 189 Ill. 2d 401, 411 (2000). Therefore, the trial court properly dismissed his
ineffective assistance claim.
¶ 54 Even assuming, arguendo, that Carroll was entitled to an evidentiary hearing on his
ineffective assistance claim, the record does not justify assigning this case to a different judge on
remand. “Allegations of judicial bias or prejudice must be viewed in context and should be
evaluated in terms of the trial judge’s specific reaction to the events taking place.” People v. Faria,
402 Ill. App. 3d 475, 482 (2010). Here, the judge stated that Carroll “had pro bono counsel from
one of the top law firms in Chicago, Mayer Brown *** [Wright’s] opinion or his level of
confidence in what he had to say about the case was not strong at the time of the trial and Marc
Kadish made a strategy decision not to put him on the witness stand but now many years later he
feels more firm in his position about what he would have to contribute at the trial *** Can we fault
Mr. Kadish for that?” The judge’s comments do not suggest a belief that attorneys from Mayer
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Brown could never be ineffective, only that attorneys from Mayer Brown were not ineffective in
this case.
¶ 55 During the hearing on the State’s motion to dismiss the amended petition, the judge
inquired: “You’re telling me that they checked out the availability of these witnesses and for
obvious reasons didn’t call either of these witnesses and somehow his constitutional rights were
violated?” In ruling on the motion, the judge explained, “He was represented by pro bono counsel
that did a conscientious job. They identified and located the witness that you are talking about, Mr.
Wright. Mr. Wright was interviewed by them and for what appeared to be very clear, correct
reasons was not put on the witness stand.” The judge’s comments properly reflected his opinion
on the issues presented during the hearing.
¶ 56 Generally, “opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings,” do not support a bias
or partiality challenge. Liteky v. United States, 510 U.S. 540, 555 (1994). Here, the judge issued a
ruling based upon the evidence presented during the hearing, the arguments of counsel, and the
applicable law. As recognized by our Supreme Court, “To conclude that a judge is disqualified
because of prejudice is not *** a judgment to be lightly made.” People v. Vance, 76 Ill. 2d 171,
179 (1979). In my view, there is nothing in the record that supports the majority’s judgment that
the judge should be disqualified in this case.
¶ 57 For these reasons, I respectfully dissent in part from the majority’s decision.
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