People v. Fair

2024 IL 128373

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 128373)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DARRELL FAIR, Appellant.

Opinion filed February 16, 2024.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Overstreet, Cunningham, and Rochford
concurred in the judgment and opinion.

Justice Neville dissented, with opinion, joined by Justice O’Brien.

OPINION

¶1 In this case, we confront for the first time questions of what constitutes a claim
of torture under the Illinois Torture Inquiry and Relief Commission Act (Act) (775
ILCS 40/1 et seq. (West 2018)) and what standards apply when a circuit court
reviews a claim referred by the Torture Inquiry and Relief Commission
 (Commission). Petitioner, Darrell Fair, appeals the circuit court’s denial of his
claim of torture, following an evidentiary hearing. After construing the Act and
clarifying the standards at issue, we hold that a court analyzing a claim of torture
referred for review under the Act must consider the totality of the circumstances—
including any allegations of constitutional violations that would not by themselves
support a freestanding claim of torture under the Act. In other words, in reviewing
a torture claim upon referral from the Commission, the circuit court must consider
the entirety of the circumstances occurring in connection with a claim that a
petitioner has been tortured into confessing. However, we ultimately conclude that
the circuit court’s determination in this case that petitioner failed to prove his claim
of torture was not manifestly erroneous. Thus, we affirm the appellate court, on
other grounds, and affirm the circuit court.

¶2 I. BACKGROUND

¶3 An extensive recitation of the facts can be found in the appellate court order.
2021 IL App (1st) 201072-U. We summarize the facts necessary to resolve the
issues presented.

¶4 A. Underlying Events

¶5 Outside a bar around midnight on July 22, 1998, Chris Stubblefield and William
Jones were robbed at gunpoint. Stubblefield was shot and killed as he attempted to
flee. Chicago police arrested petitioner in connection with the robbery on
September 1, 1998. Petitioner was transported to Area 2 for interrogation. During
interrogation, petitioner made an inculpatory statement indicating that he, Chris
Thomas, and Lamont Reaves were driving around searching for someone to rob.
According to petitioner, he obtained a gun from a friend, which Reaves used to rob
Stubblefield and Jones. When Stubblefield attempted to flee, Reaves pursued him,
took his money, and shot him in the back. Shortly after he made the inculpatory
statement, a handwritten statement was prepared by Assistant State’s Attorney
(ASA) Adrian Mebane, which petitioner refused to sign or initial.

¶6 The written statement detailed petitioner’s involvement in the murder, stating
he provided a gun to Reaves, who proposed they rob someone. Eventually, with

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 Thomas driving petitioner’s car, all three men went to a bar, where Reaves robbed
Stubblefield and Jones and shot Stubblefield as he tried to flee. Petitioner admitted
giving Reaves a ride to the bar to meet friends but otherwise claimed he was not
involved with what happened there.

¶7 The parties agree that several police officers were involved in petitioner’s initial
arrest or interrogation at Area 2. Detective Ted Przepiora took part in the arrest of
petitioner at his mother’s house and brought him to the Area 2 police station, where
he had brief interactions with petitioner. At the station, Detective Michael
McDermott initially interrogated petitioner before Detectives Maverick Porter and
Al Brown took over and conducted most of the interrogation. Mebane arrived
toward the end of this period and participated in taking statements from petitioner
but was not present for most of his time in custody.

¶8 Petitioner was indicted on September 28, 1998, on three counts of first degree
murder and one count of armed robbery. Prior to trial, petitioner filed three motions
to suppress statements. The first two versions, filed in August 1999 and March
2000, contained no allegations of specific conduct. Instead, the motion contained
“boilerplate” language indicating “the statements sought to be suppressed were
obtained as a result of physical, mental, and psychological coercion.” The third
version of the motion, filed October 25, 2000, stated that petitioner “specifically
asked for an attorney to speak with but the police did not allow this request” and
alleged that “a short White police officer with cowboy boots kicked defendant on
his shins.” The motion also alleged the statements were obtained as a result of
“psychological and mental coercion” from the officers’ denial of petitioner’s
“asthma medication” and food. None of the motions named McDermott as an
officer involved in the arrest or interrogation of petitioner.

¶9 On January 30, 2002, petitioner appeared in court with counsel, who asked to
withdraw the final motion to suppress statements. When the court asked petitioner
if he understood that the motion to suppress was being withdrawn, petitioner
replied, “yes ma’am.” When the court continued and asked petitioner, “is that your
agreement,” petitioner stated, “that’s fine.” Years later, at his hearing upon referral
of the matter from the Commission to the circuit court, petitioner testified defense
counsel advised him that the judge might suppress the unsigned written statement
but not the oral statement that preceded it and that the best available trial strategy

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 was to argue the written statement was a fraud.

¶ 10 B. Petitioner’s Trial, Posttrial Proceedings, and Direct Appeal

¶ 11 A pretrial disclosure listed Mebane and Detectives Przepiora, Brown, Porter,
and McDermott, among others, as potential witnesses in the case. Mebane,
Przepiora, and Porter testified at trial, but McDermott and petitioner did not.

¶ 12 Mebane testified that he arrived at Area 2 around 6 p.m. on the evening of
September 2, 1998, and sometime after that first spoke with petitioner, after police
had already been interviewing petitioner for hours. Mebane stated he wrote out a
statement with petitioner as part of a back-and-forth conversation. Mebane relayed
that petitioner said he had been treated “good” by everyone, he had something to
eat, and no threats or promises had been made in exchange for his statement. He
testified that they reviewed the statement together “throughout as we went along
and also at the end.” Strikethroughs and changes were made in various places
throughout the statement, and Mebane placed his initials by the changes, but
petitioner refused to add his initials or to sign the statement without first talking
with a lawyer. Mebane signed the statement.

¶ 13 Mebane testified that he read out loud a preprinted section listing an arrestee’s
Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)), then wrote
petitioner’s name on a signature line underneath it, but petitioner refused to sign his
own name. On cross-examination, Mebane stated that he thought petitioner would
sign somewhere close to where he printed petitioner’s name on the Miranda form,
“[w]hen we were finished with the statement.” Mebane stated that petitioner “told
me *** at some point during the statement” that he would not initial or sign and
“also said it again at the end” but did not say so at the beginning. When asked on
cross-examination why changes made early in the statement were not initialed by
petitioner, Mebane responded, “I didn’t ask him to yet.” Mebane agreed that one of
the changes he made on the first page of the statement would have occurred “early”
on in the discussion with petitioner, at which point Mebane added his own initials,
but he did not ask petitioner to add his initials at that time.

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¶ 14 A jury convicted petitioner on one count of first degree murder by
accountability. In his statement in allocution at sentencing, petitioner stated that,
while being interrogated, he was

“chained to a wall *** and I was kicked and beaten repeatedly. *** And I asked
for a lawyer repeatedly, and I was constantly refused. And the only time I was
fed was when I said that I would talk to one of the police officers, a Mr. Porter.
The statement that they claimed that I said *** wasn’t the facts.”

The trial judge responded by stating that she believed petitioner’s assertions were
“an absolute lie.” The court expressed confidence that petitioner was not abused
and that ASA Mebane had not made up the statement. Ultimately, the court
sentenced petitioner to 50 years in prison. When petitioner appeared before the
circuit court seeking reconsideration of his sentence, he tendered a letter indicating
his untreated drug addiction led to his participation in the robbery and that he and
his codefendant “took Mr. Stubblefield’s life.” The letter made no mention of any
alleged abuse petitioner suffered while being interrogated.

¶ 15 On appeal, petitioner argued, among other things, that trial counsel was
ineffective for failing to proceed on the motion to suppress the statements or object
to their admission. The appellate court affirmed.

¶ 16 C. Postconviction Petition

¶ 17 In a pro se postconviction petition, filed July 28, 2005, petitioner again argued
ineffective assistance of trial counsel, asserting that during his interrogation police
officers repeatedly refused his requests for a lawyer and for medication he needed
for asthma and “a severe skin condition.” He stated that a short, white detective
wearing cowboy boots entered the interview room, yelling at him and accusing him
of murder and, when petitioner denied this, the detective “started to kick defendant
in his lower left leg with his right booted foot,” while resting his hand “on his
holstered weapon,” which put petitioner “in fear of being shot.” Petitioner asserted
that he suffered “20 min. of continuous verbal and physical abuse” before the
detective left.

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¶ 18 Petitioner asserted Porter and Brown then took over his interrogation; his
continued requests for a lawyer were ignored or refused; and he was deprived of
sleep, requested medication, and food until he agreed to make a statement, which
was not true. The circuit court summarily dismissed the petition, and the appellate
court affirmed, then affirmed again following remand from this court to reconsider
its initial judgment pursuant to People v. Hodges, 234 Ill. 2d 1 (2009).

¶ 19 D. Claim of Torture

¶ 20 Petitioner filed a claim of torture with the Commission in May 2011, alleging:

“I was kicked in lower leg and threatened to be shot—while Det. rested his hand
on service weapon. I was kept awake, chained to metal ring on wall, denied
asthma medication + food—for period over 30 hours, I was also denied access
to lawyer.”

¶ 21 E. Commission Hearing

¶ 22 In a recorded phone call interview with Commission staff in June 2012,
petitioner detailed his history of severe asthma and skin allergies that could cause
him to break out in hives. He noted these conditions had since improved, but in the
years leading up to the time at issue, petitioner had to go to the emergency room
for breathing issues and needed to use prescription albuterol and steroid inhalers
every 10 to 12 minutes to help him breathe. He described police officers including
Przepiora arresting him at his mother’s house, alleging they threatened to shoot him
through the door if he did not let them in, and during his arrest he asked but was
not allowed to bring his inhalers. In the interrogation room at Area 2, his asthma
flared up, and it felt like he was “breathing through a straw.” Officers ignored or
denied his requests for medication or told him they would have to go to the hospital
and then “start the whole process over again.” After the interrogation he was
processed at the Cook County jail and eventually received prescription inhalers and
Benadryl.

¶ 23 Petitioner also described a short, white detective in cowboy boots—whose
name petitioner noted he did not know—who shouted at him and kicked him in the

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 leg, then rested his hand on his holstered gun, daring petitioner to make a move so
the detective could “waste” him. Commission staff asked petitioner how many
times the unnamed detective kicked him, and petitioner answered, “just once.”
Petitioner noted this same detective testified in another case in Markham, and
petitioner thought he might be able to inquire and obtain the detective’s name from
that case; Commission staff encouraged petitioner to determine the detective’s
name.

¶ 24 Petitioner stated he was in the interrogation room for more than 30 hours but
could not sleep for a variety of reasons—police coming into the interrogation room,
his asthma condition, the cold temperature in the room, and his light clothing. He
stated his repeated requests for a lawyer were ignored or denied and he was also
denied food until he began cooperating toward the end, at which point he began
repeating what the police told him to say. Petitioner discussed the process of
creating the written statement, including that he refused to sign the statement
Mebane created and that Mebane wrote petitioner’s name on it himself.

¶ 25 F. Commission Case Disposition Referral Order

¶ 26 The Commission issued a case disposition report in May 2013, concluding there
was sufficient credible evidence of torture to refer the case for judicial review. See
In re Claim of Fair, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2011.018-F, at
3 (2013), https://tirc.illinois.gov/content/dam/soi/en/web/tirc/documents/
decisions/Case%20Disposition%20Darrell%20Fair.1.0.pdf [https://perma.cc/
LNF2-UPXL] The report noted a lack of corroborating physical evidence or a
pattern of similar conduct by named police officers but cited troubling issues with
the handwritten statement and the prosecutor’s “dubious testimony” about
preparing the statement, which provided “significant indicators of the fact that it
was not voluntarily made.” Id. It also noted there was essentially no other evidence
against petitioner beyond the statement, which created “a powerful incentive” to
obtain it. Id.

¶ 27 G. Circuit Court Review

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¶ 28 The circuit court initially granted a motion by the State to dismiss the referral,
but the appellate court reversed the circuit court’s finding that petitioner’s claim
fell outside of the Commission’s jurisdiction and remanded for further proceedings.
Mitchell v. State, 2016 IL App (1st) 141109.

¶ 29 An evidentiary hearing was held beginning in April 2019, during which
testimony was presented by, among others, petitioner and Mebane. Petitioner
testified on direct examination to the following. Police officers including Przepiora
arrested him in the morning at his mother’s house, threatening to shoot him through
the door if he did not open it. He asked them to collect and bring his asthma inhalers
and medication for a skin condition, but this was ignored. Petitioner had “chronic
asthma and a skin condition” at the time that have since improved. He previously
had to go to the emergency room “several times” for asthma symptoms. Przepiora
took him to an interrogation room at Area 2, where he was handcuffed to a metal
ring on the wall while sitting on a bench. Requests for asthma medication and to
speak with a lawyer were ignored. Petitioner’s asthma condition “got progressively
worse” in a stressful situation like this.

¶ 30 Next, a white detective who was about “five-six, five-five *** maybe 130, 40
pounds” and “wearing cowboy boots” came in the room and started calling
petitioner names in a “[l]oud, aggressive” tone, “just in a rage,” and he got “right
in” petitioner’s face. Petitioner identified a photo of the detective. The detective
then kicked petitioner hard in his lower left leg, just under the knee, which felt like
“someone just took a bat and hit me *** just straight to the bone,” causing
“intensive pain.” He noted the detective brought the bottom of his boot down
against “the bone under my knee. It’s all bone right there. I had on short pants. It
was excruciating pain.”

¶ 31 The detective then put his hand on his gun and dared petitioner to “go for it,
make a move for it” and said he would shoot him. The detective tried to kick
petitioner again, “numerous times,” but petitioner was able to use his free arm to
cover up and attempt to block or avoid these additional kicks, so they did not land
“squarely” on his legs again. He demonstrated these movements for the circuit
court, moving his leg side to side while covering it with one arm. The detective
continued calling petitioner names and tried to kick him “every few seconds,” but
petitioner was able to somewhat block or avoid the “full contact,” so these became

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 only “glancing blows.” He eventually left the room. Petitioner was bleeding from
where “the flesh was scraped off the bone part of my lower knee” and dabbed at
the blood with an old tissue from the ground. The detective came back one more
time and was still aggressive but only made accusations and did not attempt to strike
petitioner again.

¶ 32 Detective Porter came into the room afterwards. Petitioner told him about the
attack and asked for asthma medication, as it was becoming difficult to breathe,
with his airways “just closing up.” Porter deflected and continued talking about the
murder. Petitioner also asked for a lawyer, and Porter eventually left. The lights in
the room stayed on all the time, and he was unable to sleep throughout the period
of more than 30 hours he spent there, with his arm shackled to the wall and no way
to lie down. He was also hungry and had not eaten since the night before being
arrested in the morning.

¶ 33 Porter and his partner, Brown, came in multiple times over the next several
hours to ask him questions about the murder, and his breathing “was getting worse
and worse” to where he could not say a whole sentence without coughing. A female
ASA, whose name petitioner did not know, entered the room with the officers at
one point, asked “what’s wrong with him,” and was ushered out. Porter later
returned, and petitioner asked for asthma medication and food. Porter said he had
to start talking and give them “something” if he wanted to eat. Petitioner then stated
he was outside the bar on the night at issue, trying to sell bottles of alcohol. Porter
left and brought two hamburgers and fries for petitioner to eat, the only food he had
while at Area 2.

¶ 34 Afterwards, Porter started making very specific allegations. He noted they knew
petitioner did not do anything and was not “the target of our investigation.” Porter
said if he repeated what they told him to say, petitioner would be able to go home.
Petitioner explained he eventually went along so that he could get his “asthma
pump” and because, up to that point, “one guy was kicking me, threatening to shoot
me. I was chained to the metal ring in the wall. I wasn’t getting any food, sleep,
asthma medication.” However, once he started talking with the police, they
promised to get him food and said he would “be released.” Denial of petitioner’s
requests for a lawyer contributed to the feeling that “no regular rules that you think
would apply in a police station was happening,” and instead, he was “just in

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 survival mode” to the point that he “wasn’t sure what was going to happen” if he
did not cooperate. He explained he was scared and “couldn’t breathe” by that point
and “didn’t know how much longer I could just go on without any kind of
medication or getting out of there.”

¶ 35 ASA Mebane then came in and wrote down petitioner’s statement, asking a few
basic questions and then sitting back as Porter asked questions and petitioner gave
answers that went along with the narrative Porter had given him. At the end,
Mebane asked petitioner to sign the statement, and petitioner refused to sign
without talking to an attorney first. He explained that he did not feel comfortable
signing his name to something “I know is not accurate.” Eventually petitioner was
taken away.

¶ 36 On cross-examination petitioner agreed he did not know the name of the white
detective with cowboy boots at the time of submitting his torture claim but was able
to learn it later. Petitioner explained he determined McDermott was the officer who
kicked him from police reports and by looking at photos of Area 2 officers with
other inmates, first seeing his photo in a newspaper article about the Jon Burge trial.
Petitioner did not know the names of the other inmates “offhand.”

¶ 37 Petitioner denied refusing to go to the hospital for medical treatment while at
Area 2, stating he continued to ask for his medication. The prosecutor pushed back
on when petitioner eventually received medication at the Cook County jail, whether
this occurred at initial processing or upon being assigned to a division later, and on
petitioner’s symptoms while at Area 2.

¶ 38 Mebane testified that he did not observe all of petitioner’s interrogation. He
discussed what his general practices as an ASA were at the time. Mebane stated his
“best memory” of his practice after reading Miranda warnings was that he would
write a suspect’s name below the preprinted language and would ask the suspect at
that time if he or she wanted to sign it, before going into the substance of the
statement. When making any changes or additions to a written statement, Mebane
believed his practice was to ask the suspect to also initial the edits at the time they
were made, while adding his own initials. After having his memory refreshed by
the contents of the written statement and petitioner’s arrest report, Mebane
confirmed details contained within those documents. Mebane explained that, in
general, he had no independent recollection of the events at issue.

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¶ 39 Mebane believed he asked petitioner how he had been treated by the police and
would have documented his answer in the statement. Counsel and Mebane went
through each of the other 33 written statements he had taken while in felony review,
with Mebane admitting each of the others included a version of the statement that
the suspect stated he had been treated well by the police and by himself. Mebane
conceded that only petitioner’s statement was silent on treatment by the police.
Mebane then stated, “I don’t remember,” when asked what petitioner told him about
how he was treated by the police.

¶ 40 On cross-examination, Mebane stated that petitioner did not appear to be in
distress, have difficulty breathing, ask for medical attention, or have hives or
markings on his body. Mebane said he did not fabricate the statement. He denied
that petitioner told him about being kicked or threatened and stated “[n]ot that I
recall, no,” when asked whether he recalled any injuries on petitioner, who was
wearing shorts.

¶ 41 On redirect examination, Mebane stated he did not remember when petitioner
first told him he would not sign the written statement but believed it most likely
would have been early in the statement. As to when he asked petitioner to sign the
Miranda warning, Mebane stated “I don’t know. Again, my practice was probably
to ask that then, but I don’t remember specifically.”

¶ 42 Atsia Fair, petitioner’s mother, testified that petitioner’s asthma condition
sometimes required trips to the hospital for severe symptoms that left him unable
to breathe easily. He had “terrible breathing problems,” such that he “couldn’t
breathe and had to have medication to rectify it,” regularly using inhalers or getting
breathing treatments at the hospital. She noted petitioner was also allergic to grass
and exposure could cause him to break out in hives. She could not recall anything
other than dealing with grass or greenery causing him to break out in hives.

¶ 43 As to McDermott, the State noted it “made numerous efforts to attempt to serve
Mr. McDermott to appear” as a courtesy to petitioner but that he was “certainly not
cooperating.” Petitioner’s counsel filed an affidavit chronicling his investigator’s
repeated unsuccessful efforts to serve McDermott.

¶ 44 McDermott’s history of dishonesty and abuse in other cases was also presented,
showing that McDermott invoked the fifth amendment in multiple cases and

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 ultimately received immunity to testify against Burge in federal proceedings.
McDermott had resigned from his job while on suspension pending termination in
relation to submitted charges and sustained findings of perjury and with sufficient
evidence to seek his indictment for battery, perjury, and obstruction of justice.
Documents were presented on allegations of abuse by McDermott in other cases
featuring threats with a gun, kicking or otherwise striking a restrained suspect,
withholding of medication, denial of the right to counsel, or denial of food and sleep
over a lengthy period of interrogation to force a suspect to confess to a crime.

¶ 45 After hearing the evidence, the circuit court, in a 53-page order, denied
petitioner relief, finding petitioner “failed to provide sufficient evidence of torture
to meet his burden.” In its detailed order, the circuit court noted how over time
petitioner changed his account of what occurred. For example, his story changed
regarding the nature of the alleged abuse, whether a gun was involved, the extent
of McDermott’s involvement in his interrogation, how it came to be that he was
given food, and his physical condition during and immediately after the
interrogation. The circuit court also found the details of petitioner’s eventual
identification of McDermott “troubling,” concluding that his “alleged ignorance
about the identity of his alleged abuser” and “subsequent identification of
McDermott” were not credible where it was not until after his 2012 interview with
the Commission that petitioner identified McDermott.

¶ 46 In contrast, the court found Mebane to be an “extremely” credible witness and
rejected the Commission findings of fact against him. Pointedly, the court noted
that the Commission “made no attempt to interview Mebane regarding his
testimony or the written statement.” Next, the court addressed and explicitly
rejected each finding the Commission raised regarding how Mebane took the
statement of petitioner, explaining its assessment of Mebane’s testimony. The court
found no evidence that Mebane attempted to forge petitioner’s signature where
Mebane was “forthright about the fact that petitioner did not want to sign the
statement, and even documented petitioner’s stated reason for not signing in the
body of the written statement itself.” The court credited Mebane’s testimony during
the hearing recalling his general practices when taking statements and found his
testimony was corroborated by other written statements taken by Mebane.
Ultimately, citing People v. Wilson, 2019 IL App (1st) 181486, the court
determined that petitioner failed to meet his initial burden, and if petitioner did meet

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 his initial burden, the State met its burden to show petitioner’s statement was
“nonetheless voluntary.” Thus, the court denied petitioner relief. Petitioner
appealed.

¶ 47 H. Appellate Court Decision

¶ 48 The appellate court affirmed the circuit court’s denial of relief, but on different
grounds. 2021 IL App (1st) 201072-U. Also citing Wilson, the court determined it
would analyze petitioner’s claim through the same burden-shifting process for
reviewing a postconviction petitioner’s claim that a statement was involuntary:

“A petitioner’s initial burden is the same under the Post-Conviction Hearing
Act and the Torture Act. [Citation.] A petitioner must show that new evidence
would likely have resulted in the suppression of his confession. [Citation.] If
the petitioner satisfies this initial burden, then the State must show the
petitioner’s statement was voluntary. [Citation.] After the State establishes its
prima facie case that the statement was voluntary, the burden shifts to the
petitioner to present evidence that it was involuntary.” Id. ¶ 98.

¶ 49 Contrary to the circuit court, the appellate court concluded that “petitioner
presented consistent, unrebutted allegations and testimony that he was kicked by
Detective McDermott.” Id. ¶ 101. Unlike the circuit court, the appellate court
“accept[ed] petitioner’s unrebutted and consistent claims of being kicked by
McDermott as true.” Id. ¶ 106. Nonetheless, the appellate court noted that the
circuit court found Mebane was credible and concluded that, on the record before
it, it would not find that determination was against the manifest weight of the
evidence. Id. ¶¶ 106-09.

¶ 50 The appellate court agreed with petitioner that there was no contrary police
testimony rebutting the abuse and that Mebane “was not present during the initial
30 hours he was in police custody” (id. ¶ 111) but also noted the “kicking incident
with McDermott occurred the day before petitioner gave a statement to” Mebane
(id. ¶ 113). The court determined that allegations of being denied “adequate sleep,
medication, or something to eat before giving an inculpatory statement” (id. ¶ 111)
were insufficient and that being denied the right to counsel “was not a consequence
of torture” (id. ¶ 112) that can be reviewed under the Act. The appellate court

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 ultimately affirmed the circuit court’s alternate holding that the State met its burden
to show the statements “were voluntary and not the product of torture.” Id. ¶ 113.

¶ 51 The appellate court added a supplemental order upon denying a petition for
rehearing filed by petitioner. Id. ¶ 114. In it, the court rejected petitioner’s argument
that it had erroneously determined what constituted torture in the case by refusing
to consider allegations of a denial of the right to counsel within the totality of the
circumstances or by overlooking the law of attenuation for claims of a coerced
confession. Id. ¶ 116. Instead, it noted it rejected that argument by concluding a
denial of the right to counsel was not a question that was properly before the circuit
court under the Act, and therefore it did not need to consider attenuation. Id.

¶ 52 The appellate court then held that “under the Torture Act this court’s authority
is restricted to consideration of the allegedly tortuous conduct triggering the referral
to the circuit court.” Id. ¶ 117. It noted a petitioner still has the burden under the
Act to prove before the circuit court “ ‘that he has been tortured.’ ” (Emphasis in
original.) Id. ¶ 119 (quoting People v. Christian, 2016 IL App (1st) 140030, ¶ 95).
The appellate court also discussed the Wilson court’s adoption of burden shifting
from the motion-to-suppress context but concluded the statutory test “remains
whether the petitioner has demonstrated by a preponderance of the evidence that
his confession resulted from torture.” Id. ¶ 121.

¶ 53 Petitioner filed a petition for leave to appeal, which we allowed. Ill. S. Ct. R.
315 (eff. Oct. 1, 2021). We additionally granted requests for leave to file amicus
briefs in support of petitioner’s position by the following: the Illinois Torture
Inquiry and Relief Commission; the Chicago Torture Justice Center; and the
Innocence Project, together with The Roderick and Solange MacArthur Justice
Center, the People’s Law Office, and the Center on Wrongful Convictions. Ill. S.
Ct. R. 345 (eff. Sept. 20, 2010).

¶ 54 II. ANALYSIS

¶ 55 Petitioner raises two issues on appeal. First, petitioner argues the appellate court
erred by excluding from its consideration of his claim the effect of allegations of
additional constitutional violations that would not by themselves support a
freestanding claim of torture under the Act. Second, petitioner asserts the circuit

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 court erred by denying his claim.

¶ 56 A. Standard of Review and Standards for an
Evidentiary Hearing Under the Act

¶ 57 The parties dispute the applicable standard of review on appeal. Petitioner notes
that, in determining whether a defendant’s statement should have been suppressed,
this court uses a two-part standard of review and asserts that bifurcated standard
should apply here. Under this proposed approach, the circuit court’s factual findings
are reviewed based on the manifest weight of the evidence, while this court reviews
de novo the question of whether the confession was ultimately voluntary. In re
G.O., 191 Ill. 2d 37, 50 (2000). In contrast, the State asserts that the standard of
review should be de novo when reviewing the interpretation of a statute (see People
v. Casler, 2020 IL 125117, ¶ 22) and otherwise believes the manifest error standard
applies as the “typical appellate standard of review for findings of fact made by a
trial judge” (People v. Coleman, 183 Ill. 2d 366, 384-85 (1998)).

¶ 58 Furthermore, the parties dispute the burdens of proof and production and with
whom they rest in an evidentiary hearing following a Commission referral for
judicial review. Petitioner asserts such a hearing is identical to a third-stage
evidentiary hearing under the Post-Conviction Hearing Act (Postconviction Act)
(725 ILCS 5/122-1 et seq. (West 2018)), where the circuit court determines whether
the evidence presented would likely have altered the result of a pretrial suppression
hearing. See, e.g., People v. Whirl, 2015 IL App (1st) 111483, ¶ 80. Petitioner notes
the parties argued at the evidentiary hearing based on this standard under Wilson,
2019 IL App (1st) 181486, ¶ 52, and both the circuit and appellate courts cited
Wilson in their analyses. Under this approach, petitioner argues he was first
required to make an initial showing that newly discovered evidence likely would
have altered the result of a suppression hearing, the State then had the burden of
proving a prima facie case of voluntariness, and finally, petitioner had a burden to
prove the statements were involuntary by a preponderance of the evidence. Id.
¶¶ 51-53.

¶ 59 The State argues that Wilson was “incorrect” in looking to evidentiary hearing
proceedings under the Postconviction Act for guidance on interpreting the

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 proceedings in a case referred for judicial review. The State asserts the plain
language of the Act requires courts reviewing referred cases to determine whether
a petitioner has proved his or her torture claim by a preponderance of the evidence.

¶ 60 Petitioner asserts forfeiture applies where the State failed to raise this argument
below. Although we agree it would have been better for the State to have raised and
developed this argument before the appellate court, we nonetheless elect to consider
the State’s argument on the applicable standards in order to provide guidance on
these issues. People v. Sophanavong, 2020 IL 124337, ¶ 21 (invoking the principle
that “forfeiture is a limitation on the parties and not the court”). We note the issue
of what standard of review applies on appeal is closely tied to the issue of what
standards apply to an evidentiary hearing under the Act, and so we will consider
those questions together.

¶ 61 The parties’ arguments largely rely on competing interpretations of the Act
itself. The construction of a statute is a question of law, which we review de novo.
The primary objective of statutory construction is to ascertain and give effect to the
intent of the legislature. The most reliable indicator of legislative intent is the
language of the statute, given its plain and ordinary meaning. People v. Jackson,
2011 IL 110615, ¶ 12. We view the statute as a whole, construing words and
phrases in connection with other relevant statutory provisions rather than in
isolation, while giving each word, clause, and sentence of a statute a reasonable
meaning, if possible, and not rendering any term superfluous. People v. Gutman,
2011 IL 110338, ¶ 12. “A reviewing court may also consider the underlying
purpose of the statute’s enactment, the evils sought to be remedied, and the
consequences of construing the statute in one manner versus another.” People v.
Garcia, 241 Ill. 2d 416, 421 (2011).

¶ 62 Section 5 of the Act defines a “ ‘[c]laim of torture’ ” as meaning

“a claim on behalf of a living person convicted of a felony in Illinois asserting
that he was tortured into confessing to the crime for which the person was
convicted and the tortured confession was used to obtain the conviction and for
which there is some credible evidence related to allegations of torture.” 775
ILCS 40/5(1) (West 2018).

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 By requiring that such events “occurr[ed] within a county of more than 3,000,000
inhabitants,” the provision only applies to Cook County. Id.

¶ 63 The State focuses on language from this definition, asserting that a “claim of
torture” therefore requires that a petitioner (1) must have been “tortured” (2) “into
confessing to the crime for which the person was convicted” and (3) that “the
tortured confession was used to obtain the conviction.” We note the definition also
includes the additional provision “and for which there is some credible evidence
related to allegations of torture.” See id.

¶ 64 Section 10 declares that the Act’s purpose is to establish “an extraordinary
procedure to investigate and determine factual claims of torture related to
allegations of torture.” Id. § 10.

¶ 65 Section 40 explains, among other things, that the Commission has discretion on
whether “to grant a formal inquiry” on a “claim of torture.” Id. § 40(a).

¶ 66 Next, section 45 (“Commission proceedings”) provides that where the
Commission conducts a formal inquiry on a claim, which may in its discretion
involve hearings, the Commission will then vote on whether “there is sufficient
evidence of torture to merit judicial review.” (Emphasis added.) Id. § 45(c). It states
that, where a majority of the Commission concludes this threshold is met by a
preponderance of the evidence, “the case shall be referred” to the chief judge of the
Cook County circuit court. Id.

¶ 67 Finally, section 50 (“Post-commission judicial review”) provides the following
broad language:

“(a) If the Commission concludes there is sufficient evidence of torture to
merit judicial review, the Chair of the Commission shall request the Chief Judge
of the Circuit Court of Cook County for assignment to a trial judge for
consideration. The court may receive proof by affidavits, depositions, oral
testimony, or other evidence. In its discretion the court may order the petitioner
brought before the court for the hearing. Notwithstanding the status of any other
postconviction proceedings relating to the petitioner, if the court finds in favor
of the petitioner, it shall enter an appropriate order with respect to the judgment
or sentence in the former proceedings and such supplementary orders as to

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 rearraignment, retrial, custody, bail or discharge, or for such relief as may be
granted under a petition for a certificate of innocence, as may be necessary and
proper.” (Emphases added.) Id. § 50(a).

While an initial formal inquiry before the Commission is not adversarial in nature,
section 50 provides that, in cases referred for judicial review, the state’s attorney or
a designee “shall represent the State at the hearing.” Id. § 50(b); see also id. § 45(c)
(providing that the State be served with notice of Commission proceedings only
after the Commission has issued a decision).

¶ 68 Section 50 allows circuit courts to afford successful petitioners essentially
unlimited remedies “with respect to” a petitioner’s “judgment or sentence in the
former proceedings,” including orders for retrial, discharge, or to issue a certificate
of innocence. Id. § 50(a). Nevertheless, it says little about what standards a circuit
court should apply to the hearing itself, beyond stating that the Commission will
request assignment of a referred case to the circuit court “for consideration” and
authorizing relief only if “the court finds in favor of the petitioner.” Id.

¶ 69 The State asserts that we should read the definition of “claim of torture” into
section 50, which does not use that phrase, arguing that the question presented to a
circuit court is whether a petitioner has proven his or her claim of torture. In other
words, the State asserts that a petitioner must prove before the circuit court that
(1) torture occurred, (2) the petitioner was tortured into confessing, and (3) the
confession was used to obtain a felony conviction. Petitioner asserts the State
wrongly conflates unrelated sections of the Act.

¶ 70 We note neither section 50 (“Post-commission judicial review”) nor section 45
(“Commission proceedings”) uses the phrase “claim of torture.” As we have
explained, section 40—which does use the phrase “claim of torture”—provides that
the Commission has discretion on “whether to grant a formal inquiry regarding ***
[a] claim of torture.” Id. § 40(a). Sections 45 and 50 both use the phrase “sufficient
evidence of torture to merit judicial review,” while section 45 states “the case shall
be referred” to the circuit court on a majority vote of the Commission and section
50 states a Commission referral requests assignment to a circuit court “for
consideration.” (Emphases added.) See id. §§ 45(c), 50(a). Petitioner asserts this
language shows the entire case is referred for general consideration by the circuit

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 court, once the Commission determines credible evidence of torture has been
presented.

¶ 71 But the State also points to section 10, noting that the purpose of the Act is
ultimately to establish “an extraordinary procedure to investigate and determine
factual claims of torture related to allegations of torture.” (Emphasis added.) See
id. § 10. The State argues that the Act contemplates a circuit court making the
ultimate determination on whether factual claims of torture are proven, after the
Commission has initially determined that a claim’s allegations presented some
credible evidence of torture and, therefore, referred the case for judicial review.

¶ 72 All of this brings us to the question of what constitutes “torture.” The parties
agree the Act contains no definition of “torture” but note the Commission has
promulgated an administrative rule defining the term as “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person
for the purpose of obtaining from that person a confession to a crime.” 20 Ill. Adm.
Code 2000.10 (2017). Merriam-Webster defines “torture” to mean (1) “the
infliction of intense pain (as from burning, crushing, or wounding) to punish,
coerce, or afford sadistic pleasure” or (2)(a) “something that causes agony or pain”
or (b) “anguish of body or mind.” Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/torture (last visited Jan. 8, 2024)
[https://perma.cc/5ZXC-E79S].

¶ 73 We conclude the language used in the Commission’s definition, focusing on
acts intended to inflict “severe pain or suffering, whether physical or mental,”
aligns well with the dictionary definitions, which similarly focus on the “infliction
of intense pain,” “agony,” or “anguish of body or mind.” Importantly, we note both
types of definitions allow torture to stem from acts of abuse that are not physical in
nature—that is to say, torture can result, in whole or part, from the intentional
infliction of severe mental pain or suffering, or anguish of mind.

¶ 74 The parties also rely on appellate court case law. In People v. Gibson, 2018 IL
App (1st) 162177, ¶ 136, the appellate court concluded that the evidence a
petitioner can present under the Act should be no more limited than the evidence
that may be presented under the Postconviction Act, as the legislature did not intend
to create “a remedy that was harder to secure than what [victims of police torture]
already had.” (Emphasis in original.) See also id. ¶ 138 (holding that “judicial

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 review of a [Commission] claim is a type of ‘postconviction hearing’ within the
meaning of Rule 1101(b)(3)” (see Ill. R. Evid. 1101(b)(3) (amended Apr. 8, 2013))
and therefore the “Illinois Rules of Evidence do not apply” therein).

¶ 75 In Wilson, 2019 IL App (1st) 181486, ¶ 52, the appellate court noted that under
the Postconviction Act an evidentiary hearing “is not intended to decide the
ultimate issue of whether the petitioner’s confession was coerced” but instead
initially requires a petitioner show “only that newly discovered evidence would
likely have altered the result of a suppression hearing.” (Emphasis in original.) The
court explained it believed 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.” Id. Based on “the similarities between
evidentiary hearings under the Post-Conviction Act and the Torture Act,” it
determined that “a petitioner’s initial burden under the Torture Act is the same.” Id.

¶ 76 In Whirl, 2015 IL App (1st) 111483, ¶ 51, the appellate court noted the State
“conceded that the judicial review contemplated under the Torture Inquiry Act is
akin to a third-stage evidentiary hearing under the Postconviction Act.” Whirl filed
a combined petition raising similar claims under the Postconviction Act and the
Act, and the circuit court held one evidentiary hearing that addressed both claims.
Id. ¶¶ 50-52. However, the appellate court ultimately concluded that, because it
determined Whirl was “entitled to a new suppression hearing under the
Postconviction Act, we need not address [his] claim for the identical relief under
the Torture Inquiry Act.” Id. ¶ 111.

¶ 77 The appellate court in Christian, 2016 IL App (1st) 140030, ¶ 95, affirmed the
circuit court’s denial of a claim referred under the Act for judicial review, noting
that, “while the Commission is asked to determine whether there is enough
evidence of torture to merit judicial review, the circuit court is asked to determine
whether defendant has been tortured.” See also id. ¶ 96 (concluding that “the
Commission’s decision did not relieve defendant of the burden of proving before
the circuit court that he had been tortured”). Similarly, the appellate court stated the
following in People v. Johnson, 2022 IL App (1st) 201371, ¶ 76:

“[W]e recognize that [the Commission]’s role is not to determine whether
torture actually occurred. *** [W]e hold that, upon referral from the
[Commission], the circuit court should proceed to hold an evidentiary hearing

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 ***. Then, based on the evidence adduced at the evidentiary hearing, the circuit
court can independently make factual findings as to whether torture actually
occurred.” (Emphasis in original.).

¶ 78 The State relies on the descriptions in Christian and Johnson of judicial review
under the Act as requiring a determination on whether torture actually occurred.
Petitioner responds that Illinois courts have sometimes used the words “torture”
and “coercion” interchangeably in this context, advocating for the voluntariness
burden-shifting standard adopted by analogy in Wilson.

¶ 79 Ultimately, we conclude that the plain language of the Act requires the circuit
court to determine whether a petitioner has shown by a preponderance of the
evidence that (1) torture occurred and (2) resulted in a confession that was (3) used
to obtain a conviction, not to assess the voluntariness of statements or other
constitutional claims that can be raised in a postconviction petition. To the extent a
court answers these questions in the affirmative, the Act provides the court with
wide-ranging authority to craft an appropriate remedy to root out and ameliorate
the effects of the tortured confession. We thus overrule Wilson, 2019 IL App (1st)
181486, ¶ 52, which adopted a contrary standard.

¶ 80 As to how we review the decision of the circuit court, we apply the manifestly
erroneous standard. See Coleman, 183 Ill. 2d at 385. This court will find a circuit
court’s decision is manifestly erroneous where it contains an error that is “clearly
evident, plain, and indisputable.” (Internal quotation marks omitted.) People v.
Morgan, 212 Ill. 2d 148, 155 (2004). This standard of review is based on “the
understanding that the postconviction trial judge is able to observe and hear the
witnesses at the evidentiary hearing and, therefore, occupies a ‘position of
advantage in a search for the truth’ which ‘is infinitely superior to that of a tribunal
where the sole guide is the printed record.’ ” Coleman, 183 Ill. 2d at 384 (quoting
Johnson v. Fulkerson, 12 Ill. 2d 69, 75 (1957)).

¶ 81 We note petitioner cites a variety of cases that directly analyze the voluntariness
of statements. For the reasons stated, we find those cases inapplicable here.
Petitioner also moved for leave to cite additional authority, which we allowed,
referencing our recent opinion in People v. Washington, 2023 IL 127952. In
Washington, we recognized that the certificate of innocence statute, section 2-702
of the Code of Civil Procedure (735 ILCS 5/2-702 (West 2016)), is remedial in

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 nature and explained that courts construing it must therefore “employ[ ] a broad
interpretation to further the purposes of the statute” rather than “defeat the
legislative intent by imposing a technical legal obstacle.” (Internal quotation marks
omitted.) Washington, 2023 IL 127952, ¶ 31. We agree that the Act is also remedial
in nature, and it too must be broadly interpreted to further its purpose of establishing
“an extraordinary procedure to investigate and determine factual claims of torture.”
775 ILCS 40/10 (West 2018). In doing so, we conclude that the Act is specifically
concerned with torture, not the voluntariness of statements in general.

¶ 82 We recognize petitioner’s argument suggesting the Act should apply to any
unlawful act of physical violence by the police—not a higher showing of torture—
to qualify for relief. Petitioner raises the concern that a court confronted with
allegations of some lesser act of police abuse against a defendant could
“nevertheless deny relief because the violence was not creative or egregious
enough, in the court’s mind, to be dubbed torture,” potentially leading to
“profoundly unfair results.” While we do not countenance any unlawful physical
violence being committed against those in police custody, we note there are other
ways to challenge such conduct. See, e.g., People v. Wrice, 2012 IL 111860, ¶ 84
(holding that the “use of a defendant’s physically coerced confession as substantive
evidence of his guilt is never harmless error”). In creating the Act, the legislature
chose to address the serious problem of Chicago police torturing suspects into
confessing, not acts of physical abuse by the police in general. We are bound to
follow the plain language of the Act.

¶ 83 B. Whether Judicial Review Under the Act Requires
Consideration of the Totality of the Circumstances,
Including Alleged Acts That Might Not
Alone Be Torture

¶ 84 Petitioner initially argues the appellate court erred by excluding from its
consideration the totality of the circumstances—including the effect of allegations
of additional constitutional violations that would not by themselves support a
freestanding claim of torture under the Act. Petitioner asserts that courts reviewing
cases referred under the Act are not limited to considering only acts of physical
abuse in a strict vacuum, given the Act’s broad plain language. Instead, petitioner

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 argues that courts need to look at the totality of the circumstances in evaluating a
claim of torture. We agree.

¶ 85 Petitioner asserts the appellate court erred by considering his allegations of
initial physical violence in isolation, while excluding from the analysis allegations
of a variety of other troubling constitutional violations that followed, leading up to
him giving oral and written statements.

¶ 86 The State does not defend the appellate court’s approach, arguing only that this
court should affirm because it believes the circuit court did not manifestly err by
holding that petitioner did not prove his claim of torture, where it found petitioner’s
allegations were not credible. The State concedes that “the inquiry into whether a
person was tortured, like the inquiry into whether a person was coerced, is a fact-
specific inquiry that considers the totality of the circumstances.” We accept the
State’s concession.

¶ 87 Petitioner also relies by analogy on our statement in Washington that review on
the separate issue of whether a defendant’s statement was voluntary under the
certificate of innocence statute “should be made considering the totality of the
circumstances on a case-by-case basis in light of the remedial purpose of the
statute.” (Emphasis added.) Washington, 2023 IL 127952, ¶ 42. Although we have
determined that the voluntariness of statements is not at issue under the Act, we
otherwise agree that courts applying the Act should weigh the totality of the
circumstances on a case-by-case basis when considering a referred claim of torture,
and we further agree that this inquiry should be conducted in light of the remedial
purpose and relevant history behind the Act.

¶ 88 A court analyzing whether a petitioner has shown torture occurred by a
preponderance of the evidence must consider the totality of the circumstances,
including any alleged violations that would not necessarily qualify as torture if
viewed alone. We emphasize that police treatment of a petitioner must be
sufficiently extreme to qualify as torture under the Act, but this threshold can be
satisfied by a combination of different kinds of acts and omissions—including
alleged mental as well as physical abuse—that cumulatively constitutes torture.
When engaging in this inquiry, courts should be mindful of the history of police
torture in Chicago that led to the legislature’s creation of the Act and its remedial
purposes to identify victims and ameliorate the effects of those practices by

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 “establish[ing] an extraordinary procedure to investigate and determine factual
claims of torture.” 775 ILCS 40/10 (West 2018). We therefore apply those
principles to the case at hand.

¶ 89 C. Whether the Circuit Court Manifestly Erred by
Denying Petitioner’s Claim

¶ 90 Although petitioner argues under a voluntariness standard, which we have
declined to adopt, he ultimately asserts that he showed by a preponderance of the
evidence that torture occurred here and that the circuit court erred by rejecting his
claim of torture under the Act. The State argues that the circuit court’s denial of
petitioner’s claim should be upheld where it determined in its role as the fact finder
that petitioner was simply not credible and that Mebane was credible. We conclude
that the circuit court did not manifestly err by denying petitioner’s claim.

¶ 91 During the hearing that followed referral by the Commission, petitioner
testified an unnamed police detective kicked him once in the shin while wearing
cowboy boots, causing excruciating pain, then tried to kick him “numerous” more
times, causing glancing blows. He alleged this detective also got in his face,
screaming at him, and threatened to shoot him. Petitioner has long raised allegations
of physical abuse against an unnamed short, white police detective who kicked him
in the leg early in his interrogation at Area 2. However, the circuit court found
significant the inconsistencies over time between petitioner’s allegations of abuse.

¶ 92 To rebut petitioner’s allegations of physical abuse, the State draws a contrast
between petitioner’s testimony that he was wearing shorts and bleeding from where
his “flesh was scraped off the bone part of [his] lower knee” and Mebane’s
testimony that petitioner looked fine when he saw him and the circuit court’s
finding that Mebane was “extremely” credible. The circuit court also found
petitioner to be a “wholly incredible witness,” specifically noting petitioner lacked
credibility in his in-court description of the attack and his injury, as well as in his
live demonstration of attempts to dodge and block “numerous” additional kicks
from his assailant.

¶ 93 Petitioner stated he did not know the name of the detective from 1998 through
his Commission interview in 2012 but then learned it sometime prior to his

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 evidentiary hearing in 2019. Petitioner explained that he connected his allegations
to McDermott after reviewing police reports and looking at pictures of Area 2
detectives with other inmates, whose names petitioner could not recall, ultimately
identifying McDermott from a picture in a newspaper article on the Burge trial. The
State does not dispute that McDermott initially interrogated petitioner in this case.
And petitioner relies extensively on the wealth of pattern and practice evidence he
submitted against McDermott. However, the circuit court specifically determined
that petitioner lacked credibility in his in-court explanation of how he eventually
connected his allegations to McDermott, calling this testimony “troubling” and
outlining why it found the other evidence against McDermott “of little relevance.”

¶ 94 Petitioner also testified that the stress of his time in custody caused his asthma
condition to flare up until it felt like his airways were closing and that he struggled
to breathe and also experienced hives on his skin around the handcuff on his wrist.
Before the circuit court, the State conceded that petitioner suffered from asthma at
the time of the events at issue, disputing only the severity of his symptoms.
However, the court found Mebane’s trial testimony regarding petitioner’s physical
condition credible, including that petitioner looked fine and told Mebane he had
been treated well. Also, the State points to an Area 2 document stating that
petitioner claimed to take medication for asthma but declined “any treatment at this
time.” The State also emphasizes petitioner’s testimony that he may not have
received medical care during his initial processing at the Cook County jail after the
interrogation but instead may have received it later on after being assigned to a cell
block.

¶ 95 Petitioner additionally testified that the police denied his repeated requests for
a lawyer, leading him to believe no rules applied, and that he had no sleep or food
for more than 30 hours, until he began cooperating. Petitioner asserts that these
additional allegations are unrebutted by the record. See Washington, 2023 IL
127952, ¶ 58 (“The unrebutted evidence establishes police abuse, and the lower
courts were not free to ignore it.”). Thus, as we instructed, we consider this
allegation along with the other allegations made by petitioner.

¶ 96 As we have explained, the question for the circuit court to answer in this case
was whether petitioner showed by a preponderance of the evidence that under the
totality of the circumstances the combination of acts alleged here were sufficiently

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 severe to constitute torture—conduct “by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for the purpose of obtaining
from that person a confession to a crime.” 20 Ill. Adm. Code 2000.10 (2017). In
turn, we must now determine whether the circuit court manifestly erred by
answering that question in the negative. We conclude it did not, where the contrary
result is not “clearly evident, plain, and indisputable.” (Internal quotation marks
omitted.) Morgan, 212 Ill. 2d at 155.

¶ 97 In reaching this conclusion, we emphasize the circuit court’s credibility
determinations as the fact finder at the evidentiary hearing. Here, the circuit court
was “able to observe and hear the witnesses at the evidentiary hearing and,
therefore, occupies a ‘position of advantage in a search for the truth’ which ‘is
infinitely superior to that of a tribunal where the sole guide is the printed record.’ ”
Coleman, 183 Ill. 2d at 384 (quoting Fulkerson, 12 Ill. 2d at 75). We reaffirm the
long-standing principle that the finder of fact is generally the best judge of
credibility and such determinations will not be overturned on appeal absent
manifest error. In its role as fact finder, the circuit court heard live testimony and,
considering it together with other evidence presented at the hearing and appearing
in the record, determined that petitioner was a “wholly incredible witness,” while
Mebane was “extremely” credible. We note the circuit court specifically found
petitioner was not credible in testifying about the alleged attack itself, including his
live demonstration of attempts to evade it and on his process of belatedly
connecting the allegations to McDermott. We will not disturb those findings on the
record presented.

¶ 98 III. CONCLUSION

¶ 99 For the foregoing reasons, we affirm the judgment of the appellate court on
other grounds and affirm the judgment of the circuit court.

¶ 100 Judgments affirmed.

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¶ 101 JUSTICE NEVILLE, dissenting:

¶ 102 In this case, Darrell Fair testified at a torture evidentiary hearing that
Detectives Ted Przepiora, Al Brown, Maverick Porter, and Michael McDermott
interrogated and tortured him—deprived him of medicine, food, sleep, and an
attorney for 30 hours. The detectives did not testify at Fair’s torture hearing or at
any other proceeding where they contradicted or rebutted Fair’s claims of torture.
It is axiomatic that testimony by a witness cannot be disregarded or ignored by a
court when it is neither contradicted, improbable, nor impeached. Fair’s
unimpeached, uncontradicted, probable testimony was disregarded and ignored but
found incredible by the circuit court, and that finding has been affirmed by the
majority. Mebane, the assistant state’s attorney found credible by the circuit court,
with the finding being affirmed by the majority, is an incompetent witness
(1) because he was not present during Fair’s 30 hours of interrogation and,
therefore, has no personal knowledge of what transpired during Fair’s interrogation
and, (2) because he has not been qualified as a doctor, he can only, as a layperson,
testify about how Fair looked and cannot express an opinion on Fair’s physical
condition and whether he had been deprived of food, medicine, or sleep for 30
hours. The circuit court committed a manifest error by disregarding and ignoring
Fair’s unimpeached and unrebutted testimony and by relying on the incompetent
testimony of Mebane. Accordingly, because the majority affirms the circuit court’s
findings, which constitute manifest errors, I respectfully dissent.

¶ 103 While I dissent, I agree with the majority’s determination that a court analyzing
a claim of torture referred for review under the Torture Inquiry and Relief
Commission Act (Act) (775 ILCS 40/1 et seq. (West 2018)) must consider the
totality of the circumstances, including any allegations of constitutional violations
that would not, by themselves, support a freestanding claim of torture under the
Act. Supra ¶ 84. I also agree that, in reviewing a torture claim upon referral from
the Commission, the circuit court must consider the totality of the circumstances
occurring in connection with a claim that a petitioner has been tortured into
confessing. Supra ¶ 84.

¶ 104 However, I must respectfully disagree with the majority’s holding that the
circuit court’s finding that Fair’s testimony was incredible was not against the
manifest weight of the evidence and that he failed to prove his claim of torture.

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 Supra ¶ 97. I find, in applying the standard of totality of the circumstances, that
Fair’s testimony that the police interrogators engaged in multiple unconstitutional
acts—depriving him of sleep, medication, food, and counsel for 30 hours—was
unrebutted by the interrogating police officers and the aforementioned acts were
sufficient, individually or in combination, to constitute torture. I also find that Fair’s
unrebutted testimony showed, by a preponderance of the evidence, that he was
tortured, which resulted in his inculpatory confession being used to obtain his
conviction. Therefore, the circuit court’s finding—that Fair’s unrebutted testimony
was incredible—was against the manifest weight of the evidence, and a contrary
result is clearly evident, plain, and indisputable. See People v. Morgan, 212 Ill. 2d
148, 155 (2004).

¶ 105 I agree with the majority’s observance of the long-standing principle that the
finder of fact is generally the best judge of credibility and the factfinder’s credibility
determinations will not be overturned on appeal absent manifest error. Supra ¶ 97;
People v. Coleman, 183 Ill. 2d 366, 384 (1998). Here, there was manifest error in
the circuit court’s finding that Fair’s uncontradicted and unrebutted testimony was
not credible and that Fair was a “wholly incredible witness,” while Mebane was
“extremely” credible.

¶ 106 I. BACKGROUND

¶ 107 A. Fair’s Interrogation

¶ 108 Fair was arrested, without a warrant, at 1:30 p.m. on September 1, 1998. Fair
was presented to felony review prosecutor, Adrian Mebane, at 7 p.m. on September
2, 1998. Thus, the interrogation of Fair lasted approximately 30 hours. The
detectives involved in the interrogation included Detective Ted Przepiora,
Detective Al Brown, Detective Maverick Porter, and Detective Michael
McDermott.

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¶ 109 B. Fair’s Allegations of Torture

¶ 110 The Commission’s referral found that, “by a preponderance of the evidence,
there is sufficient evidence of torture to conclude the Claim is credible and merits
judicial review for appropriate relief.” In re Claim of Fair, Ill. Torture Inquiry &
Relief Comm’n Cl. No. 2011.018-F, at 1 (2013), https://tirc.illinois.gov/content/
dam/soi/en/web/tirc/documents/decisions/Case%20Disposition%20Darrell%20
Fair.1.0.pdf [https://perma.cc/LNF2-UPXL]. Fair alleged torture (1) in a motion to
suppress, (2) at his sentencing hearing, (3) in a postconviction petition, (4) in a
habeas corpus petition, (5) at a Commission hearing, and (6) at a circuit court
evidentiary hearing.

¶ 111 1. Withdrawn Amended Motion to Suppress

¶ 112 On October 25, 2000, Fair filed an amended motion to suppress, stating a short,
white officer with cowboy boots kicked him in the shins, the officers denied him
asthma medicine and food, and the officers denied his requests for the assistance of
counsel. On January 30, 2002, the motion was withdrawn on trial counsel’s advice.

¶ 113 2. Sentencing Hearing

¶ 114 On February 13, 2003, at Fair’s sentencing hearing, he stated that during his
interrogation he was chained to a wall, kicked and beaten repeatedly, denied the
assistance of counsel, and received food only when he agreed to talk to Detective
Porter. He also stated that the written statement was not signed because it was not
factually accurate.

¶ 115 3. Fair’s Postconviction Petition

¶ 116 On July 28, 2005, Fair filed a pro se postconviction petition. Fair averred that
he was chained to a metal ring on the wall and “a white detective about five-five
and 130 to 140 pounds, wearing brown cowboy boots” entered the room and started
kicking him in his lower left leg. That officer had his right hand resting on his
holstered gun, and Fair “was in fear of being shot.” After 20 minutes of verbal and
physical abuse, he left. Thereafter, Detectives Brown and Porter arrived and

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 questioned Fair, and in the afternoon, he was given food in exchange for his
cooperation. Fair requested but was denied legal representation by Przepiora,
Brown, Porter, and McDermott. He was also denied medical treatment for severe
asthma and a skin condition. Fair stated that “the oral as well as the written
statements were not accurate descriptions of the facts as I knew them.” Fair’s
petition was dismissed on August 22, 2005.

¶ 117 4. Habeas Corpus

¶ 118 Fair, in 2011, filed for a writ of habeas corpus with the United States District
Court for the Northern District of Illinois. The petition claimed, inter alia, that
police used physical abuse to overcome his repeated refusals to answer questions.
He was questioned after requesting counsel, and he was denied medical treatment,
food, and sleep for more than 30 hours. The petition was denied. United States
ex rel. Fair v. Hardy, No. 10 C 7710, 2011 WL 1465532 (ND. Ill. Apr. 18, 2011).

¶ 119 5. Illinois Torture Inquiry and Relief Commission Hearing

¶ 120 On May 25, 2011, Fair filed a claim of torture with the Commission, alleging
that he was kicked in the lower leg, was threatened with a gun and feared being
shot, was kept awake, was denied asthma medication and food for a period of more
than 30 hours, and was denied access to a lawyer. In Fair’s June 1, 2012, recorded
phone interview with the Commission staff, he stated that he suffered from asthma
and severe skin allergies, and he gave a history of these conditions indicating that
he had a prescription for albuterol and steroid inhalers. Fair stated that police
officers, including Przepiora, arrested him at his mother’s house and that he was
threatened and told he would be shot if he did not open the door. When he was
arrested, he was immediately handcuffed, and he asked that he be allowed to bring
his asthma medicine to the police station, but the officers refused. He stated that the
handcuffs triggered an allergic skin reaction and that he broke into hives around his
wrists. He was taken to Area 2, where his asthma flared up, it was like breathing
through a straw, and he believed that his symptoms were obvious to the detectives.
At one point, an unidentified female African American assistant state’s attorney
came into the interrogation room and observed him “lying there wheezing.” Fair
stated that, while at Area 2, he asked everyone he came into contact with for his

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 medication but was denied treatment and was not provided with medication until
after the interrogation, when he was processed through the jail and was examined
at Cermak Health Services. He stated that he was then given inhalers for his asthma
and Benadryl for his allergies.

¶ 121 Fair described an unnamed short, white officer with cowboy boots who shouted
at him and called him a murderer and kicked him in the shin one time. After kicking
Fair, the unnamed officer “rested his hand on [his] revolver” and told petitioner to
“make a move” and give the detective a reason to shoot him. Fair recalled that the
officer testified in a case in Markham that petitioner was charged with.

¶ 122 Fair was sleep deprived at Area 2 and testified that he was kept awake because,
whenever he tried to lie down, someone would come in to question him. He also
had trouble sleeping because of his asthma and because it was cold where he was
being held. His requests for a lawyer were ignored or denied.

¶ 123 Porter came in and spoke to petitioner. Porter recounted what Fair allegedly did,
and Fair denied these allegations. Fair was denied food until he agreed to cooperate,
and in exchange for food he repeated what Porter told him to say to felony review
prosecutor Mebane.

¶ 124 6. Circuit Court Evidentiary Hearing

¶ 125 On April 29, 2019, an evidentiary hearing was held before the circuit court. Fair
testified that when the police officers arrived to arrest him on September 1, 1998,
at about 11:30 a.m., he had not yet eaten breakfast—his last meal prior to his arrest
was dinner on August 31. When the officers pounded on his door, he asked to see
a search warrant, and the officers threatened to shoot him through the door if he did
not open it. The officers began kicking down the front door, and Fair opened the
door and was immediately handcuffed and arrested. Fair told the officers he had
chronic asthma and an allergic skin condition and asked them to let him bring his
asthma inhaler with him to the police station, but the officers refused. Przepiora
brought Fair to an Area 2 interrogation room and handcuffed his left arm to a ring

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 on the wall, and he sat on a metal bench. Fair asked the detective for his asthma
medication and requested a lawyer, but Przepiora ignored both requests. Fair
explained that stress exacerbates his asthma and that he was struggling to breathe.
He was also having an allergic reaction to the handcuffs and breaking out in hives
and welts.

¶ 126 While Fair was handcuffed in the interrogation room, a white detective who
was about “five-five, five-six, maybe 130 to 140 pounds and wearing cowboy
boots” entered. Fair identified a photograph of Detective Michael McDermott as
this detective. McDermott was in a loud rage and used abusive language, and he
kicked Fair under the knee so hard that it “felt like an explosion.” McDermott
stepped back, put his hand on his gun, and threatened Fair, stating, “Go for it. Give
me a fucking reason, go for it, make a move, go for it. I’ll shoot your ass right here.”
McDermott repeatedly tried to kick Fair in the legs, but after the first solid kick,
Fair deflected by covering his legs and dodging direct blows, with his free arm. Fair
was bleeding, and the skin was scraped off his lower leg. McDermott swore and
called petitioner names during the attack. McDermott eventually left.

¶ 127 A couple of hours later, Przepiora returned and was told about the abuse, and
again Fair asked for his medications and a lawyer. Przepiora uncuffed him from the
wall but otherwise provided no assistance. Przepiora returned several more times
to question Fair, who again asked for a lawyer. At one point, Fair saw through the
window in the door of the interrogation room that Przepiora was right outside
speaking to Officer Martin Smith. Fair knew Smith because they attended Catholic
school together, and Fair kicked on the door to get Officer Smith’s attention and
yelled that he wanted a lawyer. In response, Przepiora returned and cuffed Fair to
the ring on the wall.

¶ 128 Several hours later, McDermott returned with a handful of files and made
accusations against Fair but did not attempt to strike Fair. Later that evening, Porter
entered, left, and returned several times and told Fair that they had evidence that he
was involved in the murder and Fair needed to help himself. Fair told Porter about
McDermott’s abuse and asked again for his asthma medications and for an attorney.
Porter ignored him and continued to talk about the murder.

¶ 129 Fair was unable to sleep that night or at any time while at Area 2, from 1:30
p.m. on September 1 until 7 p.m. on September 2, 1998. The lights were on all

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 night, his arm was still handcuffed to the wall, and he had not eaten since the night
before being arrested.

¶ 130 Porter returned with Brown multiple times over the next several hours to
question Fair about the murder. Fair’s breathing was continuing to get worse. At
one point, Porter and Brown returned with a Black female prosecutor, and the
prosecutor saw Fair was having difficulty breathing and was covered in welts and
asked “what’s wrong with him.” Porter, Brown, and the prosecutor left.

¶ 131 Porter returned alone, and Fair asked for his asthma medications and for food,
and Porter told Fair that he had to “give something to get something.” Fair then told
Porter that he had been in the parking lot of the bar at the time of the shooting and
that he was trying to sell some bottles of alcohol; Porter then provided Fair with
two burgers, fries, and a drink, the only food he received after more than 24 hours
in custody.

¶ 132 Porter then started telling him what the police needed him to say, because the
officers needed Fair’s help against his codefendant. But they knew he had not done
anything wrong, and he was not the target of their investigation. Porter said that if
Fair repeated what they told him to say, he would be released.

¶ 133 Fair testified that he finally just agreed to do what Porter asked because he was
in “survival mode,” as he could not breathe without his asthma medications; he had
been threatened with a gun, kicked, and deprived of food and sleep; and the officers
were refusing his requests for an attorney. Fair stated he was scared and he simply
did not know how much longer he could continue “to go on like that.” Fair stated
that “no regular rules that you think would apply in a police station was happening.”
The fact that the police were not following the rules made him believe that he had
no option other than to do what the police were asking.

¶ 134 On cross-examination, Fair testified that he did not know the name of the white
detective with cowboy boots at the time of submitting his torture claims. However,
he determined that the officer who kicked him was McDermott after he saw a
photograph of McDermott. Fair stated that, while in the prison library, one of the
inmates had an article from a newspaper regarding encounters with detectives at
Area 2, with pictures of Burge and other officers. Fair recognized McDermott’s
picture because he testified against him at a hearing in Markham. Finally, Fair

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 testified that he did not receive asthma medicine until four or five days after his
arrest.

¶ 135 C. No Testimony From the Detectives in the Interrogation
Room Rebutting Fair’s Torture Testimony

¶ 136 The record shows that Fair testified at the evidentiary hearing that during his
interrogation the officers induced Fair’s statement by (1) McDermott physically
assaulting and threatening to shoot him; (2) the other officers ignoring Fair’s
request for counsel and by doing so depriving Fair of his right to counsel; and (3) all
the officers depriving him of food, sleep, and necessary asthma medications for 30
hours.

¶ 137 Not one of the police officers who interrogated Fair testified at the evidentiary
hearing and rebutted Fair’s testimony that he was tortured during his 30 hours of
interrogation. Instead, the State presented the testimony of Mebane, a felony review
prosecutor who began taking Fair’s oral statement on September 2, 1998, at 7 p.m.,
30 hours after Fair’s interrogation concluded. Then Mebane took a break after 30
minutes and 2 hours later, at 9:32 p.m. on September 2, 1998, resumed taking Fair’s
statement.

¶ 138 McDermott did not testify at trial or at the evidentiary hearing and has never
refuted Fair’s claims regarding his gun threat and physical assault. And neither
Przepiora’s nor Porter’s trial testimony addressed the torture allegations against
them, and they did not deny that they denied Fair food, sleep, medication, or
counsel. Finally, felony review prosecutor Mebane admitted that he did not see
what transpired during the first 30 hours of petitioner’s interrogation.

¶ 139 D. Postinterrogation Testimony

¶ 140 1. Fair’s Commission Testimony

¶ 141 During the interview with the Commission on June 1, 2012, Fair explained that
on September 2, 1998, after 30 hours in the interrogation room and after receiving
some food, he agreed to give a statement. Assistant State’s Attorney Mebane then
came in at 7 p.m., left and returned at 9:32 p.m., and then started “writing some

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 stuff down” and asked petitioner to sign the statement. Fair told Mebane that he
wanted a lawyer, that he would not sign something that he did not do, and that he
would not say anything. Mebane then printed Fair’s name on the statement, near
the waiver of rights, and told Fair to sign and initial it. Fair again refused.

¶ 142 2. Fair’s Evidentiary Hearing Testimony

¶ 143 At the circuit court’s evidentiary hearing on April 29, 2019, Fair stated that he
spoke to the felony review prosecutor, Mebane, and said what Porter had told him
to say. Mebane wrote down Fair’s statement, asking a few background questions.
Then Porter and Fair had a back and forth while Mebane was “writing stuff down.”
Fair stated that Porter gave him an “outline” and that Fair added details to make it
believable. Mebane presented Fair with the statement that he had drafted. After Fair
read the statement, he believed that Mebane was trying to implicate him in the
murder. Fair testified that he realized that Porter and Mebane were trying to charge
him and his codefendant with the murder. Fair then told Mebane that he wanted to
talk to a lawyer before signing anything. Fair refused to sign the statement. Fair
testified that he agreed to give an oral statement because Porter told him he was not
a target of the investigation, and he decided not to sign the written statement when
he realized that he was a target.

¶ 144 3. Mebane’s Trial Testimony

¶ 145 Mebane testified at Fair’s trial that on the evening of September 2, 1998, he
arrived at Area 2 around 6 p.m. to investigate a murder. At around 7 p.m., he spoke
with Porter, Brown, and Fair for about 30 to 40 minutes; at 7 p.m. Fair had been
interrogated for approximately 30 hours. Mebane testified that he advised Fair of
his constitutional rights. Mebane explained that Fair could have a statement written
indicating that it was a “back and forth” conversation. Mebane testified that Porter
left the room and that Mebane asked Fair how he had been treated; Fair responded
that he had been treated “good” by everyone. Mebane asked Fair if there had been
any threats or promises in exchange for his statement, to which Fair said “no.”
Mebane stopped taking Fair’s statement at 7:30 p.m. and left to interview another
witness to the crime.

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¶ 146 Mebane and Porter returned to the interrogation room at 9:32 p.m. and resumed
taking Fair’s written statement, 32 hours after Fair’s interrogation began. Mebane
testified that Fair’s “Constitutional rights” were typed on the first page of the
statement and Fair’s name was printed below by Mebane. Mebane wrote down what
Fair had previously said, asking for details as they went. When Fair verbally made
changes, Mebane wrote and then initialed the changes. Fair declined to initial the
changes without a lawyer present. Mebane continued writing the statement and
reviewing the same with Fair. Mebane signed the statement, but Fair again declined
to sign without legal representation.

¶ 147 4. Mebane’s Evidentiary Hearing Testimony

¶ 148 At the evidentiary hearing in the circuit court, Mebane testified to his general
practices of interviewing a suspect. Mebane stated that he would Mirandize
suspects before taking their statements and then immediately have the suspect sign
the waiver form prior to proceeding with the statement. See Miranda v. Arizona,
384 U.S. 436 (1966). Next, Mebane printed the person’s name under the waiver
and then asked the suspect if he or she wanted to sign the statement. If changes
were made to the statement, Mebane would print his initials next to the change, and
he would also ask the suspect to initial the change to the statement.

¶ 149 Mebane testified that he did not observe all of Fair’s interrogation. Fair’s
interrogation began on September 1, 1998, at 1:30 p.m. Mebane arrived at the Area
2 police station interrogation room at 7 p.m. on September 2, 1998, and had a
discussion with Fair for 30 to 40 minutes. Mebane left and returned at 9:32 p.m. to
begin taking the written statement. He also testified that he did not have any
independent recollection of this case, aside from the written statement. Mebane did
not remember whether he explored Fair’s treatment by the police or the reason for
his lengthy detention. The written statement indicated that he had been given a
burger, fries, and a drink, but Mebane was not concerned about that being the only
food Fair received during 32 hours of confinement.

¶ 150 Mebane admitted that in 33 of the other custodial statements he had drafted as
a felony review prosecutor, the statements documented that the suspect had been
treated well by the police. In the statement Mebane drafted for Fair, however, he
wrote that Fair was treated well by the prosecutor but omitted confirmation that he

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 was treated well by police. Mebane recalled that Porter was present during the
handwritten statement, and although Mebane usually would have the officer present
initial and sign the statement, he did not know why Porter did not sign the statement
or initial any changes. He also recalled that Fair would not sign anything without a
lawyer.

¶ 151 On cross-examination, Mebane denied fabricating the statement. Mebane stated
that Fair did not appear to be in distress or having difficulty breathing, and Fair did
not ask for any medication or medical attention. Mebane also did not recall any
injuries to Fair.

¶ 152 II. ANALYSIS

¶ 153 A. Standard of Review

¶ 154 Here, the circuit court held an evidentiary hearing on a Commission referral,
and the circuit court was required to consider new evidence and weigh the
credibility of the witnesses. A reviewing court will disturb the circuit court’s
findings only if they are manifestly erroneous. Manifest error is error that is
“ ‘ “clearly evident, plain, and indisputable.” ’ ” Morgan, 212 Ill. 2d at 155 (quoting
People v. Johnson, 206 Ill. 2d 348, 360 (2002), quoting People v. Ruiz, 177 Ill. 2d
368, 384-85 (1997)). I agree with the majority that a reviewing court should not
disturb the findings of the trial court unless the same are manifestly erroneous.
Supra ¶ 97; see Coleman, 183 Ill. 2d at 386; People v. Stanley, 50 Ill. 2d 320, 322
(1972). Thus, a circuit court’s decision is manifestly erroneous if it contains an error
that is clearly evident, plain, and indisputable. Morgan, 212 Ill. 2d at 155; People
v. Christian, 2016 IL App (1st) 140030, ¶ 106.

¶ 155 B. Fair’s Testimony Was Credible

¶ 156 Fair, for more than 20 years (September 1998 until April 2019), consistently
claimed that he was interrogated and tortured by several police officers (1) in a
motion to suppress, (2) at his sentencing hearing, (3) in his postconviction petition,
(4) in a habeas corpus petition, (5) at a Commission hearing, and (6) at a circuit
court evidentiary hearing. Fair also consistently testified that (1) he was arrested

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 and placed in handcuffs; (2) he was handcuffed to a wall and deprived of asthma
medication, food, sleep, and counsel by his interrogators at an Area 2 police station;
(3) he was threatened with a gun and kicked in the shin by McDermott; (4) the
torture (deprivation of food, medicine, sleep, and counsel) persisted from
September 1, 1998, at 1:30 p.m. until September 2, 1998, at 7 p.m.; (5) Fair then
made an inculpatory oral statement to Porter; and (6) he had repeatedly invoked his
Miranda rights, which the police officers ignored.

¶ 157 Fair’s testimony was not contradicted or rebutted by any of the police
interrogators who entered, left, and returned to the interrogation room at Area 2 for
30 hours. Mebane, who was not present in the interrogation room during Fair’s
interrogation and arrived at the interrogation room at 7 p.m., once the
approximately 30 hours of interrogation concluded, had no personal knowledge of
what had occurred in that interrogation room. Therefore, Mebane’s testimony
cannot rebut Fair’s testimony.

¶ 158 While I agree that the credibility of witnesses and the weight to be accorded
their testimony are typically jury considerations (People ex rel. Brown v. Baker, 88
Ill. 2d 81, 85 (1981) (citing Mizowek v. De Franco, 64 Ill. 2d 303, 309-10 (1976),
and Finley v. New York Central R.R. Co., 19 Ill. 2d 428, 436 (1960))), a jury or
judge cannot arbitrarily or capriciously reject the testimony of an unimpeached
witness (id. (citing Larson v. Glos, 235 Ill. 584, 587 (1908), and 81 Am. Jur. 2d
Witnesses § 660, at 662-63 (1976))). Where the testimony of a witness is neither
contradicted, either by positive testimony or by circumstances, nor inherently
improbable, and the witness has not been impeached, that testimony cannot be
disregarded even by a jury or judge. Id. (citing Larson, 235 Ill. at 587, and Urban
v. Industrial Comm’n, 34 Ill. 2d 159, 163 (1966)).

¶ 159 I would find that Fair’s evidentiary hearing testimony, which stands unrebutted
and unimpeached by the police interrogators, was neither incredible nor improbable
but consistent and credible. Accordingly, I would hold that the circuit court’s
finding that Fair’s uncontradicted, unimpeached, unrebutted testimony was
incredible was against the manifest weight of the evidence, as the opposite
conclusion is clearly evident, plain, and indisputable. Morgan, 212 Ill. 2d at 155.

¶ 160 C. Interrogator Michael McDermott Is a Torturer

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¶ 161 Fair presented consistent, uncontradicted, and unrebutted testimony that
McDermott threatened him and denied him food, sleep, medicine, and counsel,
which resulted in his inculpatory confession. Fair presented consistent, unrebutted
evidence that McDermott was acting in conformity with his pattern and practice,
established in other cases, of torturing suspects and detainees. See People v.
Muhammad, 2023 IL App (1st) 220372, ¶¶ 11, 104; People v. Mitchell, 2012 IL
App (1st) 100907, ¶ 56; People v. Harris, 2021 IL App (1st) 182172, ¶¶ 1, 6, 36;
People v. Smith, 232 Ill. App. 3d 121, 125, 129 (1992); see also People v. Gibson,
2018 IL App (1st) 162177, ¶ 85 (determining that, as long as there is some evidence
to support the complainant’s allegations, a court may consider a party’s refusal to
testify as further evidence of the alleged misconduct in civil action).

¶ 162 I disagree with the circuit court’s finding that other evidence against
McDermott was “of little relevance,” because the allegations were not similar to
allegations in other cases and the allegations do not determine whether Fair proved
his claim of torture. Instead, I agree with the appellate court that the circuit court
erred in testing whether Fair’s allegations of police misconduct were “ ‘strikingly
similar’ ” to the misconduct shown in other cases. 2021 IL App (1st) 201072-U,
¶ 103. This court, in People v. Jackson, 2021 IL 124818, ¶¶ 33-34, clarified that the
use of “ ‘strikingly similar’ ” in People v. Patterson, 192 Ill. 2d 93, 144-45 (2000),
was merely descriptive of the allegations in that case and not a legal test for
admissibility.

¶ 163 I also agree with the appellate court’s finding that

“[a]s early as the year 2000, petitioner has consistently alleged that
McDermott kicked him in his leg. McDermott did not testify at his trial or at
the evidentiary hearing, and the trial testimony of Detectives Przepiora and
Porter did not rebut petitioner’s allegations he was kicked by McDermott.
Although we accord deference to the circuit court’s resolution of conflicts in
evidence and its determination on witness credibility, ‘ “the manifest weight
standard is not a rubber stamp. It does not require mindless acceptance in the
reviewing court.” ’ Harris, 2021 IL App (1st) 182172, ¶ 56 (quoting People v.
Anderson, 303 Ill. App. 3d 1050, 1057 (1999)).

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 Contrary to the trial court, we accept petitioner’s unrebutted and consistent
claims of being kicked by McDermott as true.” 2021 IL App (1st) 201072-U,
¶¶ 105-06.

¶ 164 Beginning in 2000, through 2019, Fair’s testimony consistently described a
short, white male, about 5 feet, 5 inches, to 5 feet, 6 inches tall, weighing about 130
to 140 pounds, and wearing cowboy boots as the interrogator who physically
tortured him. No witness has ever rebutted the fact that Fair’s testimony is an
accurate description of McDermott, including the easily verifiable detail of him
wearing cowboy boots. Fair did not remember McDermott’s name, but his ability
to identify McDermott is confirmed by the unrebutted fact that he witnessed
McDermott testify at an earlier court hearing in Markham. I also do not find it
incredible that inmates in a prison library would search for information regarding
Area 2 detectives affiliated with Burge who coerced confessions out of suspects.
The majority notes that the “State does not dispute that McDermott initially
interrogated petitioner in this case.” Supra ¶ 93. Thus, there is documented
evidence that McDermott interrogated Fair. Therefore, I disagree with the circuit
court’s finding that Fair’s testimony connecting his allegations to McDermott is
“troubling.” Rather, I find it consistent and highly credible. See People ex rel.
Brown, 88 Ill. 2d at 85 (finding testimony rational, reasonably consistent, and
certain).

¶ 165 Additionally, I find support in the Commission’s conclusion that Fair had been
consistent in making the claims of torture. In an amended motion to suppress his
statement before trial, he claimed that he was questioned for 30 hours and kicked
in the leg. The Commission further observed that, in his postconviction petition,
Fair’s affidavit alleged that while at Area 2 a detective wearing cowboy boots
kicked him in the leg and that the detective rested his hand on his service weapon
so that Fair feared being shot. The Commission determined, by a “preponderance
of the evidence, there is sufficient evidence of torture to *** merit[ ] judicial
review.” In re Claim of Fair, Ill. Torture Inquiry & Relief Comm’n Cl. No.
2011.018-F, at 1; see 775 ILCS 40/45(c) (West 2018).

¶ 166 Illinois courts have consistently held that a pervasive pattern of criminal
conduct by police officers is enough for courts to reconsider whether petitioner’s
confession was the result of torture. See Patterson, 192 Ill. 2d at 139-45; People v.

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 King, 192 Ill. 2d 189, 198-99 (2000); People v. Cannon, 293 Ill. App. 3d 634, 640
(1997)); Mitchell, 2012 IL App (1st) 100907, ¶ 62 (finding that the new evidence
of McDermott’s perjury probably would change the result of the motion to suppress
petitioner’s statements).

¶ 167 In fact, the circuit court of Cook County’s criminal division appointed Special
State’s Attorney Edward Egan and Chief Deputy Special State’s Attorney Robert
Boyle to investigate Burge-era brutality allegations, and they released their report
in July 2006. See Edward J. Egan & Robert D. Boyle, Report of the Special State’s
Attorney, at 3 (2006) https://www.aele.org/law/2006LROCT/chicagoreport.pdf
[https://perma.cc/9LCQ-WKM5] (hereinafter SSA Report). The authors of the SSA
Report found the torture allegations centered on police officers known as the
“ ‘Midnight Crew.’ ” See Nw. Pritzker Sch. of L., A Report on the Failure of
Special Prosecutors Edward J. Egan and Robert D. Boyle to Fairly Investigate
Police Torture in Chicago, at 4-5 (2007), https://wwws.law.northwestern.edu/legal
clinic/macarthur/projects/police/documents/4_25_07finalspecpros.pdf [https://
perma.cc/498E-L32E]. The SSA Report identified five officers, one being Michael
McDermott, accused in torture cases in which guilt could be proven beyond a
reasonable doubt. See SSA Report, supra, at 16; 2 Ill. Adm. Code
3500.375(c)(1)(B) (2017) (formal inquiry includes whether the allegations involve
officers formerly under Burge’s supervision).

¶ 168 At Fair’s evidentiary hearing, he presented extensive unrebutted evidence of
McDermott’s history of untruthfulness, including McDermott’s own testimony in
Burge’s criminal trial about covering up Burge’s abuses. See United States v.
Burge, No. 08 CR 846, 2014 WL 201833, at *3 (N.D. Ill. Jan. 17, 2014); SSA
Report, supra, at 275-90 (finding evidence beyond a reasonable doubt that
McDermott committed perjury and obstruction of justice for testifying falsely). Fair
also submitted unrebutted evidence of McDermott’s own use of torture to coerce
confessions in numerous other cases. The following shows the significant, lengthy,
and substantiated history of torture complaints against McDermott, as well as
findings and determinations of McDermott’s custom and practice of physical and
psychological torture.

¶ 169 1. Appellate Court Decisions

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¶ 170 Several appellate court decisions relate alarm regarding McDermott’s torture.
See Muhammad, 2023 IL App (1st) 220372, ¶¶ 11, 104 (alleging McDermott hit
the defendant and denied him food and the use of a bathroom and finding that many
Commission decisions concern alleged torture by McDermott); Mitchell, 2012 IL
App (1st) 100907, ¶ 56 (describing McDermott as “an admitted perjurer” and citing
the unreliability of his highly questionable trial testimony); Harris, 2021 IL App
(1st) 182172, ¶¶ 1, 6, 36, (reversing denial of postconviction relief based, inter alia,
on allegations that McDermott hit the suspect, threatened him with a gun, and
ignored his request for counsel); Smith, 232 Ill. App. 3d at 125, 129 (judge’s finding
that the defendant was arrested solely as a pretext for obtaining an identification in
a lineup and that the officers’ conduct, including McDermott’s, was flagrant).

¶ 171 2. Commission Claims

¶ 172 Many Commission decisions concern alleged torture by McDermott. See
Search Results, Torture Inquiry & Relief Comm’n, https://tirc.aem-int.illinois.gov/
search.html?q=mcDermott&contentType=everything (last visited Jan. 10, 2024)
[https://perma.cc/73N4-SVKM]; Leach v. Department of Employment Security,
2020 IL App (1st) 190299, ¶ 44 (finding information on websites and in public
records is sufficiently reliable such that judicial notice may be taken). The
following Commission claims of torture perpetrated by McDermott were all
referred for judicial review: In re Claim of Reavers, Ill. Torture Inquiry & Relief
Comm’n Cl. No. 2016.405-R, at 7-10 (2023), https://tirc.illinois.gov/content/dam/
soi/en/web/tirc/documents/decisions/reavers-willie-stamped-determination-2016-
405-r.pdf [https://perma.cc/QED5-BDDG] (claiming McDermott continually
handcuffed him to the wall, used verbal threats, and choked him); In re Claim of
Johnson, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2019.641-J, at 1-2 (2022),
https://tirc.illinois.gov/content/dam/soi/en/web/tirc/documents/decisions/2022-11-
16-t-johnson-determination-referral-approved-signed.pdf [https://perma.cc/F5K2-
XZCD] (claiming McDermott denied him food and water, assaulted and punched
him, refused his request for a lawyer, and made racist comments); In re Claim of
Anderson, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2011.014-A, at 8 (2015),
https://tirc.illinois.gov/content/dam/soi/en/web/tirc/documents/decisions/May%
202015%20Anderson%20Order.1.0.pdf [https://perma.cc/G6RU-J3HL] (claiming
McDermott held a gun to his head and threatened to kill him and finding

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 Anderson’s claim had been consistent since his motion to suppress and there were
many other claims of misconduct against McDermott); In re Claim of Reynolds, Ill.
Torture Inquiry & Relief Comm’n Cl. No. 2012.116-R, at 1-2 (2021), https://tirc.
illinois.gov/content/dam/soi/en/web/tirc/documents/decisions/Ebony%20
Reynolds%20Final%20Disposition-SIGNED.1.0.pdf [https://perma.cc/5DDJ-
M4QE] (claiming McDermott punched him in the ribs and face, slapped him in the
face, and refused his requests for an attorney and finding McDermott had lengthy,
consistent, and substantiated histories of complaints against him); In re Claim of
Muhammad, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2014.256-M, at 12
(2018), https://tirc.illinois.gov/content/dam/soi/en/web/tirc/documents/decisions/
7.18.2018%20Muhammad%20Disposition-STAMPED.1.0.pdf [https://perma.cc/
WF9E-W3L8] (claiming that he was handcuffed to the wall and denied food and
use of the bathroom and that McDermott struck his ears when he would put his head
down).

¶ 173 Although not referred for judicial review, a special order was entered in In re
Claim of Clopton, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2012.112-C, at 18
(2021), https://tirc.illinois.gov/content/dam/soi/en/web/tirc/documents/decisions/
2021.04.22%20SIGNED%20DETERMINATION.1.0.pdf [https://perma.cc/7TZ7-
HW2K] (claiming McDermott yelled at her, kicked her leg and chair, pulled her
hair, and threatened her with the death penalty and finding that she was taken to the
police station and sequestered with police for 38½ hours before she gave her court-
reported statement—an extended period of time lending itself to a coercive
environment). The Commission, in denying Ms. Clopton’s torture claim,
acknowledged Detective McDermott’s extensive history of abuse complaints and
negative credibility determinations by more than one court and issued a special
order referring the determination and administrative record to the Cook County
State’s Attorney’s Office and its conviction integrity unit for its consideration and
review of whether relief was warranted under its requirement to refer evidence of
professional misconduct or other wrongdoing pursuant to section 45(d) of the Act
(775 ILCS 40/45(d) (West 2018)). In re Claim of Clopton, Ill. Torture Inquiry &
Relief Comm’n Cl. No. 2012.112-C, at 21.

¶ 174 In addition, it should be noted that the State informed the circuit court that
McDermott would not cooperate or attend the evidentiary hearing. The circuit court
expressly found that “McDermott was uncooperative with the State’s attempt to

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 serve him with a subpoena to testify; Mr. Fair made nine unsuccessful attempts to
serve McDermott at his home; and Mr. Fair attempted to serve McDermott’s
counsel in another matter, but counsel refused to accept service on McDermott’s
behalf.”

¶ 175 I maintain that where police officers, who are state agents, participated in an
investigation and have relevant and pertinent information regarding a claim of
torture and the State fails to present its former police officers as witnesses at the
evidentiary hearing, courts cannot arbitrarily or capriciously reject Fair’s testimony
because his testimony has not been rebutted and he has not been impeached. People
ex rel. Brown, 88 Ill. 2d at 85.

¶ 176 Further, Fair’s claims of torture cannot be rebutted by Mebane, who arrived on
September 2, 1998, at 7 p.m. and was not present nor involved in Fair’s 30 hours
of interrogation. Mebane arrived after Fair’s interrogation concluded.

¶ 177 Mebane did not see or hear the police officers interrogating Fair because he
arrived in the interrogation room on September 2, 1998, at 7 p.m., after Fair’s
interrogation concluded, left at 7:30 p.m. to interview another witness to the crime,
and returned at 9:32 to take Fair’s written statement. Therefore, he has no personal
knowledge of what took place during Fair’s interrogation. Accordingly, the circuit
court manifestly erred when it found that Fair’s testimony was rebutted by Mebane,
who had no personal knowledge of what happened during Fair’s interrogation.

¶ 178 Fair’s testimony is not rebutted by the police officers who interrogated him or
by Mebane who took Fair’s statement. This court should reverse the appellate
court’s decision and hold that when a confession is obtained during a custodial
detention in which a court finds that police officers engaged in acts which constitute
torture—suspect was handcuffed to a wall for 30 hours; suspect was deprived of
medicine, food, sleep, or assistance of counsel for more than 30 hours; suspect was
threatened with acts of violence—the police officers have violated the suspect’s
constitutional and statutory rights. 2021 IL App (1st) 201072-U, ¶¶ 105-06;
Gibson, 2018 IL App (1st) 162177, ¶ 108 (finding that, in the face of a credible
allegation, an officer of the court is unwilling to assure the court that he and his
colleagues did not physically coerce a confession, when he determines that a
truthful answer could subject him to criminal liability, the court should take careful
note).

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¶ 179 I think this court should draw a negative inference from the police interrogators’
refusal to come forward and rebut Fair’s probative testimony delineating the
officers’ misconduct. See People v. $1,124,905 U.S. Currency & One 1988
Chevrolet Astro Van, 177 Ill. 2d 314, 332 (1997) (“It is ‘the prevailing rule that the
Fifth Amendment does not forbid adverse inferences against parties in civil actions
when they refuse to testify in response to probative evidence offered against
them.’ ” (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)); see also
Gibson, 2018 IL App (1st) 162177, ¶ 85 (determining that, in a civil action, the fifth
amendment (U.S. Const., amend. V) does not forbid an adverse inference against a
party who refuses to testify in response to probative evidence of alleged misconduct
and finding that, as long as there is “some” evidence to support the complainant’s
allegations, a court may consider a party’s refusal to testify as further evidence of
the alleged misconduct); People v. Martinez, 2021 IL App (1st) 190490, ¶ 70 (a
court may consider a witness’s refusal to testify as evidence of the alleged
misconduct so long as some evidence supports the complainant’s allegations);
People v. Whirl, 2015 IL App (1st) 111483, ¶ 107 (“We recognize that although a
court may draw a negative inference from a party’s refusal to testify, it is not
required to do so. Yet given that the State produced no evidence to rebut the
evidence of torture and abuse by Pienta, we believe Pienta’s invocation of his fifth
amendment rights is significant and a negative inference should have been drawn.
Instead, when discussing the evidence that was presented at the suppression
hearing, the trial court mentioned in passing that Pienta had taken the fifth
amendment at the evidentiary hearing, but appeared to give more weight to the fact
that the original judge had not found Whirl credible at the suppression hearing than
to the fact that Pienta refused to testify at the evidentiary hearing.”).

¶ 180 The majority states that, in creating the Act, “the legislature chose to address
the serious problem of Chicago police torturing suspects into confessing, not acts
of physical abuse by the police in general.” Supra ¶ 82. Although any police
officer’s act of physical violence should not be condoned, McDermott was
specifically found to have perjured himself and to have perpetrated torture in
numerous Commission decisions. See Muhammad, 2023 IL App (1st) 220372,
¶ 104; see also Search Results, Torture Inquiry & Relief Comm’n, https://tirc.aem-
int.illinois.gov/search.html?q=mcDermott&contentType=everything (last visited
Jan. 10, 2024) [https://perma.cc/73N4-SVKM].

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¶ 181 Thus, McDermott had an extensive history of torture, and McDermott’s torture
of petitioner is the embodiment of the serious problem of Chicago police torturing
suspects that the Act was intended to address. See 775 ILCS 40/35 (West 2018)
(duties include conducting inquiries into claims of torture); What Can the
Commission Do, Torture Inquiry & Relief Comm’n, https://tirc.illinois.gov/about-
us.html#faq-whatcanthecommissiondo-faq_copy (last visited Feb. 13, 2024)
[https://perma.cc/BC8W-337M] (determining that the “Commission is authorized
by the Act to gather evidence about a claim of torture occurring in Cook County,
and then determine whether there is sufficient credible evidence of torture to merit
juridical review”); 2 Ill. Adm. Code 3500.375 (2017) (formal inquiry includes
whether the allegations involve officers formerly under Burge’s supervision); SSA
Report, supra, at 3; see also 775 ILCS 40/5(1)) (West 2018) (defining claim of
torture).

¶ 182 Given the totality of the circumstances, after taking judicial notice of
McDermott’s documented history of torturing suspects, coupled with the State’s
inability to serve McDermott with a subpoena in order to compel his appearance at
the circuit court’s evidentiary hearing and the fact that Fair’s testimony is
unrebutted, Fair established by a preponderance of the evidence his claims of
torture where he consistently stated, over a period of 20 years, that he was deprived
of food, sleep, medicine, and counsel, for more than 30 hours during a two-day
period. See People v. Salamon, 2022 IL 125722, ¶ 83 (holding that use of physical
abuse to coerce confessions from a suspect is prohibited because it is revolting to
the sense of justice).

¶ 183 D. Fair’s Being Denied Food, Sleep, Medicine, and
Counsel Is Torture

¶ 184 I maintain that the majority erred when it found that the circuit court did not
manifestly err in finding that Fair’s testimony failed to show, by a preponderance
of the evidence, that under the totality of the circumstances the combination of acts
by police officers were sufficiently severe to constitute torture. Supra ¶ 97. Fair
testified—and the State offered no evidence to rebut Fair’s testimony—that as long
as he denied involvement in the murder, police kept him chained to a wall and
denied him food, sleep, medicine, and assistance of counsel.

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¶ 185 The State presented Mebane’s postinterrogation testimony about what he
observed on September 2 at about 7 p.m. after Fair’s approximately 30 hours of
interrogation, but there was no evidence from the police interrogators refuting
Fair’s allegations of torture suffered during the first 30 hours of interrogation,
beginning on September 1 at 1:30 p.m. and continuing until 7 p.m. on September
2, 1998. The State conceded that petitioner suffered from asthma at the time of the
interrogation, disputing only the severity of the symptoms. In addition, the State
failed to refute petitioner’s allegations that his right to counsel was repeatedly
violated by the interrogators.

¶ 186 “Where ‘ “the confession [is] the product of an essentially free and
unconstrained choice by its maker,” ’ ‘ “it may be used against him.” ’ ” Salamon,
2022 IL 125722, ¶ 80 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225
(1973), quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). However, if
the will of the defendant “ ‘ “has been overborne and his capacity for self-
determination critically impaired, the use of his confession offends due
process.” ’ ” Id. (quoting Schneckloth, 412 U.S. at 225-26, quoting Culombe, 367
U.S. at 602). “The Supreme Court has long held that police officers’ use of physical
abuse to coerce confessions from a suspect is prohibited because it is ‘revolting to
the sense of justice’ embodied in the Constitution.” Id. ¶ 83 (quoting Brown v.
Mississippi, 297 U.S. 278, 286 (1936)).

¶ 187 However, the United States Supreme Court also has proscribed more subtle
forms of police coercion, including psychological pressure. See Miranda v.
Arizona, 384 U.S. 436, 448 (1966) (holding that the modern practice of in-custody
interrogation is psychologically rather than physically oriented); see also Arizona
v. Fulminante, 499 U.S. 279, 287 (1991) (recognizing that “ ‘coercion can be
mental as well as physical, and . . . the blood of the accused is not the only hallmark
of an unconstitutional inquisition.’ ” (quoting Blackburn v. Alabama, 361 U.S. 199,
206 (1960))). Indeed, courts have long held that employing sleep and food
deprivation tactics during questioning that continues hour after hour, and includes
several officers, is a common technique to induce a tortured confession. Ashcraft v.
Tennessee, 322 U.S. 143, 150 n.6 (1944) (“It has been known since 1500 at least
that deprivation of sleep is the most effective torture and certain to produce any
confession desired.”). Courts have also concluded that sleep deprivation violates an
individual’s constitutional rights. See Vance v. Rumsfeld, 701 F.3d 193, 206 (7th

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 Cir. 2012) (Wood, J., concurring in the judgment) (including sleep and food
deprivation in a list of government misconduct that must be acknowledged for what
they are: torture).

¶ 188 1. Food and Sleep Deprivation

¶ 189 The interrogating officers used sleep and food deprivation to torture Fair into
giving a confession. Fair testified that he did not sleep at all while at Area 2, as the
lights were on all night, he was handcuffed to the wall, and he was cold and hungry.
Fair testified that Porter told him he would receive food only in exchange for
information. Specifically, Porter said that petitioner had to “give something to get
something.”

¶ 190 Mebane admitted that he was aware that Fair had only received a hamburger,
fries, and a drink during the more than 30 hours he was held in the interrogation
room. Fair testified that his last meal prior to his arrest was dinner on August 31,
1998. Thus, Fair made a coerced inculpatory statement in exchange for a burger,
fries, and a drink—the first food he received after 24 hours in custody and the only
food received by petitioner during his 30 hours of interrogation. Compare People
v. House, 141 Ill. 2d 323, 379 (1990) (reasoning that it is difficult to draw a bright
line, but defendants properly processed and charged can be held in interview rooms
for lengthy periods of time, although given a different set of circumstances the
result might be different), with Black’s Law Dictionary (11th ed. 2019) (“torture”
defined as the “infliction of intense pain to the body or mind *** to extract a
confession”; also termed “extraordinary interrogation technique” (“An unusual and
extreme means of questioning a suspect or detainee to break down the person’s
resistance to answering, usu. by subjecting the person to pain or extreme discomfort
or denying necessities such as sleep.” Id.)). This case crossed the House line
because Fair was handcuffed to a wall and deprived of food, sleep, medicine, and
counsel for more than 30 hours.

¶ 191 2. Medicine Deprivation

¶ 192 Similarly, courts have held that denying medical treatment, when used to coerce
a statement, is never harmless error. People v. Strickland, 129 Ill. 2d 550, 557-59

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 (1989) (deprivation of needed medical care supports suppression); People v.
Wilson, 116 Ill. 2d 29, 39-40 (1987). The interrogating officers tortured Fair by
refusing to give him his asthma and allergy medications even when he was in
respiratory distress. When arrested, Fair told the officers he suffered from asthma
and a skin condition and asked them to bring his inhaler to the police station. The
officers refused. Then, when Przepiora brought Fair to an interrogation room and
handcuffed him to a ring on the wall, Fair again asked for his asthma medication
and a lawyer. The officer ignored both requests. Fair continued to request
medication throughout more than 30 hours in custody. Fair explained that stress
exacerbated his asthma, and he was struggling to breathe. Continuous refusal to
provide needed medical treatment constitutes torture. See Strickland, 129 Ill. 2d at
555-56.

¶ 193 3. Deprivation of Assistance of Counsel

¶ 194 Finally, Fair’s allegations that he was deprived of access to counsel in violation
of his Miranda rights was critical to petitioner’s torture claims. Petitioner testified
that he invoked his right to counsel repeatedly, to Przepiora, McDermott, Brown,
Porter, and a female prosecutor. That testimony stands unrebutted. None of the four
officers or the female prosecutor has ever testified and rebutted Fair’s testimony
that he pleaded for an attorney. Further corroboration is the absence of Fair’s
signature on the Miranda waiver or on the written statement attributed to him, even
though it was Mebane’s practice to seek a signature waiver from suspects at the
outset of taking a statement. It should be noted Officer Porter also did not sign
Fair’s statement. Thus, the unrefuted testimony of Fair’s repeated invocation of his
right to counsel was a form of torture. See Ill. Const. 1970, art. I, § 2 (no person
shall be deprived of liberty without due process of law); Miranda, 384 U.S. at 476
(“Any evidence that the accused was threatened, tricked, or cajoled into a waiver
will, of course, show that the defendant did not voluntarily waive his privilege. The
requirement of warnings and waiver of rights is a fundamental with respect to the
Fifth Amendment privilege and not simply a preliminary ritual to existing methods
of interrogation.”).

¶ 195 Illinois courts regularly consider whether police officers complied with
Miranda safeguards in determining whether a statement was voluntary, on the one

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 hand, or the result of torture, on the other. See People v. Richardson, 234 Ill. 2d
233, 253-54 (2009) (totality-of-the-circumstances factors considered by courts
include the presence of Miranda warnings). The appellate court has done the same
in Commission cases. People v. Wilson, 2019 IL App (1st) 181486, ¶ 63; Gibson,
2018 IL App (1st) 162177, ¶ 17 (torture claim rested in part on violation of Miranda
rules). A police officer’s failure to comply with Miranda safeguards, by declining
to honor a request for counsel, conveys to a suspect that he or she is outside the
protection of the law, thus increasing the probability that the suspect will be tortured
into a confession.

¶ 196 Fair testified that the detectives’ unresponsiveness to his requests for counsel
made Fair feel as if he was in “survival mode” and he had no option other than to
do what the police were asking. Fair testified that “no regular rules that you think
would apply in a police station was happening.” Once Fair expressed his right to
speak with the police only through an attorney, the law required his interrogators
to cease questioning until counsel was present. See Edwards v. Arizona, 451 U.S.
477, 484-85 (1981) (holding that an accused, having expressed his desire to deal
with police only through counsel, is not subject to further interrogation until counsel
has been made available to him).

¶ 197 The State, in the face of Fair’s credible allegations of torture, presented none of
the police interrogators who had personal knowledge of what took place in the
interrogation room to directly address petitioner’s allegations of being denied food,
sleep, medicine, and the assistance of counsel. In addition, McDermott, who
perpetrated petitioner’s physical torture, was involved and identified in other cases
involving torture.

¶ 198 Finally, Fair’s testimony and claims of torture at Area 2 are consistent with the
SSA Report’s findings that torture, as alleged by Fair, was systemic and methodical
at Area 2. Here, Fair’s claims of torture remained unrebutted, and the circuit court’s
finding that Fair failed, by a preponderance of the evidence, to show he was tortured
was against the manifest weight of the evidence. See People v. Wrice, 2012 IL
111860, ¶ 70 (observing the deep-rooted feeling that the police must obey the law
while enforcing the law); Gibson, 2018 IL App (1st) 162177, ¶ 106 (same).

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¶ 199 E. Felony Review Prosecutor Mebane’s
Testimony Was Not Credible

¶ 200 The majority gives significant weight to the circuit court’s finding that felony
review prosecutor Mebane was extremely credible. Supra ¶ 97. I disagree because
Mebane, who was not in the interrogation room and did not see or hear what went
on during Fair’s interrogation, had no personal knowledge of what took place when
Fair was interrogated, and Fair’s unsigned statement drafted by Mebane conflicts
with Mebane’s testimony. It should also be noted (1) that Fair requested an attorney
if Mebane wanted him to sign the statement, (2) that Mebane did not provide Fair
with an attorney, and (3) that Mebane did not stop drafting the statement once Fair
requested an attorney. See Edwards, 451 U.S. at 484-85. In my opinion, Mebane’s
failure to provide Fair with an attorney violated Fair’s constitutional right to
counsel.

¶ 201 Considering the interaction between Fair and Mebane, the Commission
expressed concern regarding the circumstances surrounding Fair’s statements. It
specifically stated:

“3. The product of this interrogation is a very troublesome statement written
by the ASA, which is attached as Exhibit A. On the signature line on the first
page to demonstrate the waiver of rights, the ASA printed DF’s name; the
waiver is not signed by DF. The ASA’s ‘explanation’ makes no sense:

Q. And who wrote Darrell Fair there?

A. I wrote Darrel Fair there.

Q. And why did you do that?

A. That would have been his name and after we reviewed his statement
if he had wished to sign he probably would have signed there indicating that
he understood those rights.

(Transcript of Proceedings dated January 9, 2003, at 24-25)

The ASA’s testimony is a non sequitur: it in no way explains why the ASA
would print DF’s name on the signature line.

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 4. In addition, none of the corrections, which the ASA claims were made at
DF’s request, are initialed by DF. The ASA’s testimony on this issue, which is
attached as Exhibit B, is again nonsensical and confusing. According to the
ASA, he made the corrections requested by DF as they went along and the ASA
initialed them at that point. But he did not ask DF to do the same. Then, for
some unexplained reason, well into the statement at about page 3, for the first
time he asked DF to begin to initial the corrections and DF refused. However,
the ASA continued to make the corrections and initial them himself. This
testimony begs a host of questions: Why would he not ask DF from the outset
to initial the corrections as they went along, while the corrections were fresh in
the minds of all? What caused him to suddenly decide approximately halfway
into the statement that he wanted DF to start initialing them as well? Why did
he not make some note of when DF was first asked to initial the corrections and
refused, so that it’s clear on the face of the statement what is taking place?

5. The statement handwritten by the ASA is not signed by DF. Neither DF’s
signature nor his initials appear on the statement. Only the ASA’s signature and
initials appear on it.” In re Claim of Fair, Ill. Torture Inquiry & Relief Comm’n
Cl. No. 2011.018-F, at 1-2.

¶ 202 The Commission determined that the police had a motive to coerce an
inculpatory statement from Fair, as it specifically concluded that the “prosecution
case against DF was practically non-existent without the statement, creating a
powerful incentive to obtain the statement.” Id. at 3. It further concluded that “DF
has been consistent in making the Claim. The written motion to suppress asserts the
asthma and kicking claims, and the post-conviction petition is completely
consistent with the TIRC Claim.” Id.

¶ 203 Furthermore, Fair’s written unsigned statement drafted by Mebane contains two
assertions that Fair would not sign the statement without assistance of counsel. In
other words, Fair invoked his Miranda right to have counsel present, only to be
denied the protections guaranteed by Miranda. See Miranda, 384 U.S. at 467
(concerned with interrogation that takes place in a police-dominated environment
containing “inherently compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak where he would not otherwise
do so freely”).

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¶ 204 I find that Mebane’s testimony that Fair did not request counsel, after including
in Fair’s statement that he twice stated that he would not sign without counsel
present, was (1) a violation of Fair’s constitutional right to assistance of counsel
and (2) was an ethical violation. See ABA Standards for Criminal Justice, The
Prosecution Function, Standard 3-1.2(b) (4th ed. 2017) (stating that the duties of
the prosecutor include that they protect and respect the constitutional and legal
rights of suspects and defendants). As this court has found, a prosecutor is the
representative of all the people, including those accused of a crime, and is bound to
safeguard the constitutional rights of those accused, as well as any other citizen.
See Jackson, 2021 IL 124818, ¶ 52 (Neville, J. specially concurring); People v.
Lampkin, 98 Ill. 2d 418, 430 (1983); Berger v. United States, 295 U.S. 78, 88 (1935)
(finding it is as much the prosecutor’s “duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means
to bring about a just one”).

¶ 205 Additionally, Mebane admitted that, in 33 other custodial statements he had
drafted as a felony review prosecutor, the statements documented that the suspect
had been treated well by the police. In the statement Mebane wrote for Fair,
however, he wrote that Fair was treated well by the prosecutor but omitted his
standard confirmation that the suspect was treated well by police. Further, in every
other statement Mebane had written as a felony prosecutor, the detective present
signed every page of the document and initialed any changes. Mebane offered no
explanation for why, although present, Porter did not sign or initial the statement in
this case.

¶ 206 Furthermore, I find inconsistencies in Mebane’s testimony and find that not
only was he not “extremely” credible, as the circuit court found, but rather
equivocal: not easily or definitely understood. Contrary to the majority’s
acquiescence to the circuit court’s finding that Mebane’s trial testimony regarding
Fair’s physical condition was credible, including that petitioner looked fine,
Mebane did not refer to Fair’s physical appearance regarding his shin or his
difficulty breathing in Fair’s statement. See supra ¶ 94.

¶ 207 In addition, Mebane, after reviewing the written statement, testified at the
circuit court evidentiary hearing that he had no independent recollection of this
case. Mebane also testified that he did not recall how Fair looked on September 2.

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 However, at the evidentiary hearing, in response to a question of whether Mebane
noticed any injuries to Fair he answered “No.” I find no mention of Fair’s injuries
in the statement; therefore, there is no corroboration of Mebane’s answer in Fair’s
written statement. Additionally, Mebane testified that Fair did not appear in distress
and had no difficulty breathing, which also is not documented in Fair’s written
statement. Thus, Mebane’s testimony regarding Fair’s injuries—breathing
difficulty and being in distress—was not only not documented in Fair’s statement
but is inconsistent with Fair’s statement. Further, Mebane was not qualified as a
medical doctor who could express an opinion on the effects interrogation would
have on a person with asthma or the physical effects of depriving a suspect of
medication or the psychological effects that 30 hours of interrogation would have
on an individual.

¶ 208 At trial, Mebane testified that Fair stated he had been treated “good” by
everyone; however, the written statement states that Fair was treated “good by ASA
Mebane.” I find that these inconsistencies make Mebane’s testimony equivocal.
Finally, we must not forget that Mebane testified that he had “no independent
recollection” of Fair’s case.

¶ 209 The majority notes that the State relies on an Area 2 document to rebut Fair’s
torture claims. Supra ¶ 94. The document is a “moving of arrestee out and into
arrest/detention facility” report dated September 3, 1998. The report was produced,
filled out, and signed by a representative of the State.

¶ 210 In light of the totality of the circumstances, the intake report should not have
been considered by the court and does not rebut Fair’s testimony. The intake report
is ambiguous because question 8 reads: Are you presently taking any medication?
Answer: Yes and No. See infra ¶ 223. Question 12A reads: Do you have any serious
medical or mental problems? Answer: Yes and No. See infra ¶ 223. The ambiguous
answers to questions 8 and 12A are unclear or inexact and cannot be used to prove
whether Fair was taking medicine and whether he had serious medical and mental
problems. The circuit court’s attempt to use the intake report to establish Fair had
no medical problems is against the manifest weight of the evidence. The circuit
court cannot rely on this ambiguous report to rebut Fair’s uncontradicted and
uncontested claims of torture. See Hinton v. Uchtman, 395 F.3d 810, 822 (7th Cir.
2005) (Wood, J., concurring) (“a mountain of evidence indicates that torture was

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 an ordinary occurrence at the Area Two station of the Chicago Police Department”).
Therefore, the circuit court’s reliance on this intake report is misplaced, and it
should not be used to rebut Fair’s claims that his confession was induced by his
police interrogators’ torture.

¶ 211 In addition, the circuit court emphasized that Fair’s claims were not consistent
from one forum to the next. Minor inconsistencies in testimony do not destroy the
credibility of witnesses. See People v. Soteras, 295 Ill. App. 3d 610, 620-21 (1998).
Although the details of Fair’s testimony and claims had minor inconsistencies over
20 years, they were insufficient to destroy his credibility in this case. Here, the core
allegations have remained the same and have never been rebutted by the police
interrogators. See Gibson, 2018 IL App (1st) 162177, ¶ 120. Fair has consistently
claimed he was tortured, and his testimony about being deprived of food, medicine,
sleep, and counsel while handcuffed to the wall has not changed, and I note that his
claims are consistent with findings of similar acts of torture by McDermott, which
have been documented in other cases. See Jackson, 2021 IL 124818, ¶ 34 (majority
opinion).

¶ 212 F. Fair’s Confessions Were the Result of Torture

¶ 213 I maintain that the circuit court’s finding that Fair’s torture claims regarding his
oral statement to the officers was not relevant to the admissibility of the unsigned
inculpatory written statement taken by Mebane. Rather, I find that Fair’s confession
to Mebane was inadmissible because Fair presented unrebutted evidence that he
was denied the assistance of counsel when making the statement and that he was
tortured by interrogating officers McDermott, Przepiora, Brown, and Porter during
30 hours of interrogation that culminated in Fair’s coerced inculpatory confession.
See Beecher v. Alabama, 389 U.S. 35, 38 (1967) (reasoning that there is an
inescapable conclusion that a confession is involuntary if the confessor has been
threatened at gunpoint to speak his guilt).

¶ 214 The majority finds that the Act “requires the circuit court to determine whether
a petitioner has shown by a preponderance of the evidence that (1) torture occurred
and (2) resulted in a confession that was (3) used to obtain a conviction.” Supra

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 ¶ 79. The majority also states that, although voluntariness is not at issue under the
Act, courts applying the Act should weigh the totality of the circumstances on a
case-by-case basis. Supra ¶ 87. Thus, I find that voluntariness, if not at issue, is
relevant as to whether torture resulted in a confession.

¶ 215 Illinois courts have for decades used a specific test in deciding whether the
effect of earlier coercive circumstances has been attenuated, rendering a subsequent
statement admissible. Richardson, 234 Ill. 2d at 258-59. The Supreme Court has
found that, when a prior statement is coerced, (1) the time that passes between
confessions, (2) the change in place of interrogations, and (3) the change in identity
of the interrogators all bear on whether that coercion has carried over into the
second confession. Strickland, 129 Ill. 2d at 557 (citing Oregon v. Elstad, 470 U.S.
298, 310 (1985)); see Mission Statement, supra (explaining that to fall within the
Commission’s authority to act, or jurisdiction, the claim must be that an officer
coerced a confession that was used against the defendant to obtain his conviction).

¶ 216 I find that the written statement taken by Mebane after Fair had been
interrogated for 30 hours by four officers was contaminated by the officers’ torture
of Fair, because when Fair spoke to Mebane (1) there was little time lag between
Fair’s torture by the interrogators, from 1:30 p.m. on September 1 to 7 p.m. on
September 2 and when he made the inculpatory confession that Mebane drafted at
9:32 p.m. on September 2, 1998, and that Fair refused to sign; (2) both the oral
statement to the police interrogators and the written statement were made by Fair
in the same interrogation room at Area 2; and (3) Porter, one of the police
interrogators, was in and out of the room during the 30 hours of police interrogation
and Fair’s oral statement, and he was present for the written statement taken by
Mebane, the assistant state’s attorney. Therefore, I find a causal connection
between the two statements, and I cannot find that there was a “ ‘break in the stream
of events *** sufficient to insulate [Fair’s last] statement from the effect of all that
went before.’ ” Strickland, 129 Ill. 2d at 559 (quoting Clewis v. Texas, 386 U.S.
707, 710 (1967)); Gibson, 2018 IL App (1st) 162177, ¶ 97 (finding that where the
alleged detective torturer is in the room when the prosecutor interviewed defendant,
defendant’s reticence in these circumstances hardly rebuts his allegations).

¶ 217 Without Fair’s coerced inculpatory confession, the State had no case against
Fair. Fair’s unrebutted claims against McDermott and the unrebutted claims of

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 denial of food, sleep, medicine, and counsel establishes, by a preponderance of the
evidence, (1) that torture occurred and (2) resulted in Fair’s unsigned inculpatory
confession written by Mebane and (3) that the confession was used to obtain Fair’s
conviction. I would find the Commission correctly found the “case against
[petitioner] was practically non-existent without the [petitioner’s] statement.” In re
Claim of Fair, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2011.018-F, at 3).
Finally, I would find the circuit court’s finding that Fair’s claims of torture were
incredible was manifestly erroneous because Fair’s claims are uncontradicted and
unrebutted by the police interrogators.

¶ 218 III. CONCLUSION

¶ 219 Commission rules define “torture” as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for the
purpose of obtaining from that person a confession to a crime.” 20 Ill. Adm. Code
2000.10. (2017). Specifically, Fair alleged that (1) he was arrested and placed in
handcuffs; (2) he was handcuffed to a wall of the Area 2 police station and deprived
of asthma medication, food, and sleep by his interrogators; (3) he was threatened
with a gun and kicked in the shin by McDermott; (4) the torture (deprivation of
food, medicine, and sleep) persisted for 30 hours; (5) the prosecutor entered the
interrogation room at 9:32 p.m. and drafted a handwritten statement, but Fair
refused to sign the written statement; and (6) he repeatedly invoked his Miranda
rights during the 30 hours of interrogation, which the police officers and prosecutor
ignored.

¶ 220 I find, based on the uncontradicted and unrebutted testimony of Fair, that the
police officers’ acts constituted torture. I also find, under the totality of the
circumstances, that Fair’s uncontradicted and unrebutted testimony proved, by a
preponderance of the evidence, that his unsigned inculpatory written confession
was the product of the police officers’ acts of torture. I further find that the circuit
court’s finding that Fair’s testimony was incredible was against the manifest weight
of the evidence, because Fair’s testimony stands unrebutted and the opposite
conclusion is clearly evident.

¶ 221 I believe this court is obligated to reverse the circuit court and appellate court’s
judgments because Assistant State’s Attorney Mebane had no personal knowledge

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 of what took place during Fair’s interrogation and the four police interrogators
failed to come forward at the circuit court’s evidentiary hearing to rebut Fair’s
testimony. I think this court should draw a negative inference from the police
interrogators’ refusal to come forward to rebut Fair’s probative testimony
delineating the officers’ misconduct. Therefore, I respectfully dissent from the
majority’s decision because this court cannot disregard or reject the testimony of
Fair, an unimpeached witness, whose testimony was neither contradicted nor
impeached by the State’s police interrogators.

¶ 222 JUSTICE O’BRIEN joins in this dissent.

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¶ 223 APPENDIX

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Pet. Ex. 2

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