                                         2015 IL App (1st) 113075


                                                                                     THIRD DIVISION
                                                                                     March 25, 2015

     No. 1-11-3075

     THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
                                                           )       Circuit Court of
                            Plaintiff-Appellee,            )       Cook County, Illinois.
                                                           )
     v.                                                    )       No. 01 CR 6428
                                                           )
     ANDRE RICHARDSON,                                     )       Honorable
                                                           )       Diane Gordon Cannon,
                            Defendant-Appellant.           )       Judge Presiding.


            JUSTICE MASON delivered the judgment of the court, with opinion.
            Justice Neville concurred in the judgment and opinion.
            Justice Pucinski dissented, with opinion.

                                                  OPINION

¶1          Defendant Andre Richardson appeals from the summary dismissal of his pro se petition

     for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)).

     On appeal, Richardson contends that his petition sufficiently alleged an ineffective assistance of

     counsel claim based on trial counsel's failure to acquire and produce evidence of his mental

     impairment to demonstrate his inability to waive his rights pursuant to Miranda v. Arizona, 384

     U.S. 436 (1966). We affirm.

¶2                                            BACKGROUND

¶3          On February 9, 2001, Richardrson, who was 16 years old, was arrested at 4837 South St.

     Lawrence Avenue in Chicago in connection with the murder of his 11-month-old daughter,

     Diamond Clark. At the police station, Richardson gave a videotaped statement in which he made

     inculpatory remarks, including that he bit his daughter, struck her numerous times with a coat

     hanger and belt, struck her face with his hands, struck her in the ribs, and shook her.
     No. 1-11-3075

¶4          Prior to trial, the defense filed a motion to suppress Richardson's videotaped statement as

     involuntary. In the motion, Richardson alleged, in part, that he was incapable of understanding

     the full meaning of his Miranda rights and that the statements sought to be suppressed were

     obtained as a result of physical coercion illegally directed against him by police. After a hearing,

     at which the evidence showed that Richardson received an injury to his left eye at the police

     station lockup, the trial court denied the motion to suppress. The court found that although

     Richardson was injured at the police station, the detectives and assistant State's Attorney who

     questioned him were not involved in the altercation. Furthermore, Richardson was advised of his

     rights, did not complain of any pain or request medical assistance, and appeared calm in the

     videotape. The trial court thus concluded that the totality of the circumstances showed that the

     confession was voluntary.

¶5          At Richardson's 2005 jury trial, the trial court admitted into evidence his videotaped

     inculpatory statement and forensic evidence. The State's evidence at trial also included the

     testimony of Cyntoria Clark, the baby's mother; James Franklin, an eyewitness to part of the

     beating; Monica Smith, the neighbor who called "911"; Michael Hayes, the arresting officer; and

     Assistant State's Attorney (ASA) John Heil. Richardson, the sole witness for the defense,

     testified that his videotaped statement was true, except for hitting his daughter with a belt, which

     he did not do. At the close of the evidence, the jury returned a verdict of guilty of first degree

     murder.

¶6          At sentencing, the presentence investigation report (PSI) revealed that Richardson had

     been a learning–disabled student throughout his life and that, when he was transferred to jail at

     age 17, he could not read.      The fitness evaluation presented at sentencing concluded that

     Richardson was fit for sentencing. It also indicated that he achieved a full–scale IQ score of 61,

     which falls within the extremely low range of intellectual functioning and ranked him at the 0.5

                                                     -2-
     No. 1-11-3075

     percentile when compared to his same-aged peers. The evaluation also stated that Richardson

     "appears to fall in the upper echelon of mild mental retardation." Following a sentencing

     hearing, the court sentenced Richardson to 40 years' imprisonment.

¶7          On appeal, this court reversed Richardson's conviction on the basis that the trial court

     erred in denying his motion to suppress where the State failed to prove by clear and convincing

     evidence that his eye injury was not inflicted in order to obtain a confession.          People v.

     Richardson, 376 Ill. App. 3d 537 (2007). The State was granted leave to appeal to the Illinois

     Supreme Court. People v. Richardson, 226 Ill. 2d 627 (2008). Before our supreme court, the

     State argued that Richardson's inculpatory statement was voluntary and not coerced.            The

     supreme court agreed and reversed this court's decision, instructing this court to consider

     Richardson's remaining contentions. People v. Richardson, 234 Ill. 2d 233 (2009).

¶8          On remand, this court considered Richardson's remaining contentions, and affirmed the

     judgment of the trial court. People v. Richardson, 401 Ill. App. 3d 45 (2010). In relevant part,

     this court rejected Richardson's claim that he was denied effective assistance of trial counsel

     based on counsel's failure to offer expert testimony concerning his mental impairment during the

     motion to suppress hearing. Id. at 46. We acknowledged that Richardson's mental capacity was

     raised during sentencing but observed that the information in the PSI did not deal with

     Richardson's ability to waive his Miranda rights. Id. at 48.

¶9          On June 15, 2011, Richardson filed a pro se postconviction petition alleging that his trial

     counsel was ineffective for failing to present evidence of his limited mental capacity at the

     hearing on his motion to suppress statements. Richardson asserted that this evidence would have

     shown that he could not have knowingly and intelligently waived his Miranda rights prior to

     providing his inculpatory statements to the State. Richardson specifically alleged in his petition:



                                                     -3-
       No. 1-11-3075

                       "Trial counsel's failure to marshall [sic] evidence on [defendant's]

                       diminished mental capacity at the motion to suppress, and her

                       failure to argue such evidence coupled with [defendant's] youth

                       weighed in favor of suppression, was objectively unreasonable

                       because such evidence was highly relevant in determining the

                       validity of the Miranda waiver and the voluntariness of

                       [defendant's] statement."

       Richardson did not sign his petition or attach a verification affidavit. However, he did attach

       transcripts from three pretrial court dates in which defense counsel represented to the court that

       she had hired an expert to examine Richardson regarding his ability to waive his Miranda rights

       and that she was in the process of having the examination conducted. Richardson also attached

       to his petition transcripts showing that he was unable to spell "Cyntoria," the name of his baby's

       mother. Richardson's allegation is premised on the information included in the PSI.

¶ 10          On September 13, 2011, the circuit court issued a written order dismissing the petition as

       frivolous and patently without merit. In doing so, the circuit court held that it would follow this

       court's 2010 decision on appeal, which determined that Richardson could not establish that he

       was provided ineffective assistance of counsel, declined to assume that the result of the

       evaluation was favorable and not used or that counsel failed to conduct an evaluation, and found

       that Richardson was fit for sentencing. Richardson now appeals the propriety of that dismissal.

¶ 11                                                ANALYSIS

¶ 12          We initially reject the State's contention that Richardson's petition was properly

       dismissed at the first stage of proceedings solely on the basis that his petition lacked both a

       verification affidavit and his signature on the petition.



                                                        -4-
       No. 1-11-3075

¶ 13          A postconviction proceeding "shall be commenced by filing with the clerk of the court in

       which the conviction took place a petition (together with a copy thereof) verified by affidavit."

       725 ILCS 5/122-1(b) (West 2010). After the briefs were filed in this case, our supreme court

       explained that, "at the first stage of proceedings, the court considers the petition's substantive

       virtue rather than its procedural compliance." People v. Hommerson, 2014 IL 115638, ¶ 11.

       Specifically, with respect to a lack of an affidavit, our supreme court held that "the circuit court

       may not dismiss a petition at the first stage proceedings solely on the basis that it lacked a

       verification affidavit," and "[t]hat deficiency is properly the subject of a motion to dismiss at the

       second stage of proceedings." Id. ¶¶ 11, 14. In following our supreme court's reasoning in

       Hommerson, we find that the lack of a verification affidavit and signature affixed to Richardson's

       petition is not dispositive at the first stage of proceedings. In so finding, we now turn to

       Richardson's substantive argument that he was denied effective assistance of counsel.

¶ 14          On appeal, Richardson contends that he raised an arguable claim of ineffective assistance

       of counsel. He specifically maintains that his counsel was ineffective for failing to have him

       evaluated for his ability to understand Miranda where there was reason to believe he was

       mentally retarded. If he was of such limited functioning that he could not understand Miranda,

       then he asserts it was at least arguable that the court would have suppressed his confession

       following the hearing on his motion.

¶ 15          The Act provides a method by which persons under criminal sentences can assert that

       their convictions resulted from a substantial denial of their constitutional rights. 725 ILCS

       5/122-1(a)(1) (West 2010). At the first stage of postconviction proceedings, the trial court must

       independently review the petition, taking the allegations as true and determine whether the

       petition is "frivolous or patently without merit." People v. Hodges, 234 Ill. 2d 1, 10 (2009); 725

       ILCS 5/122-2.1(a)(2) (West 2010). A petition may be summarily dismissed as frivolous or

                                                       -5-
       No. 1-11-3075

       patently without merit only if the person has no arguable basis in either law or in fact. People v.

       Tate, 2012 IL 112214, ¶ 9. "A petition which lacks an arguable basis either in law or in fact is

       one which is based on an indisputably meritless legal theory or a fanciful factual allegation."

       Hodges, 234 Ill. 2d at 16.

¶ 16          The first stage in the proceedings allows the trial court "to act strictly in an administrative

       capacity by screening out those petitions which are without legal substance or are obviously

       without merit." People v. Rivera, 198 Ill. 2d 364, 373 (2001). Because most first-stage post-

       conviction petitions are drafted by defendants with little legal knowledge, the "threshold for

       survival [is] low." Tate, 2012 IL 112214, ¶ 9. We review the summary dismissal of a post-

       conviction petition de novo. Id. ¶ 10.

¶ 17          A defendant alleging ineffective assistance of counsel at the first stage of proceedings

       must show it is arguable that counsel's performance fell below an objective standard of

       reasonableness, and arguable that defendant was prejudiced. Tate, 2012 IL 112214, ¶ 19 (citing

       Hodges, 234 Ill. 2d at 17). In the instant Richardson has not presented an arguable claim of

       prejudice.      See People v. Valladares, 2013 IL App (1st) 112010, ¶ 70 (if a claim of

       ineffectiveness may be disposed of due to lack of prejudice, a reviewing court is not required to

       address whether counsel's performance was unreasonable). To establish the prejudice prong of

       an ineffective assistance of counsel claim in the context of a motion to suppress, the defendant

       must demonstrate that the "unargued suppression motion is meritorious, and that a reasonable

       probability exists that the trial outcome would have been different had the evidence been

       suppressed." People v. Henderson, 2013 IL 114040, ¶ 15; People v. Lundy, 334 Ill. App. 3d 819,

       830 (2002).

¶ 18          Here, Richardson failed to make an arguable claim that his motion to suppress would

       have succeeded had trial counsel presented evidence of his mental deficiency at the hearing. The

                                                       -6-
       No. 1-11-3075

       inquiry as to whether a defendant knowingly and voluntarily waived his Miranda rights focuses

       on the totality of the circumstances surrounding the interrogation. People v. Smith, 178 Ill. App.

       3d 976, 982 (1989). While mental deficiency is one factor to be considered when deciding

       whether Miranda rights were validly waived, evidence of a limited intellect, alone, is not proof

       that one was incapable of waiving constitutional rights. Id.; see also People v. Henderson, 175

       Ill. App. 3d 483, 486, 489 (1988); People v. Burke, 164 Ill. App. 3d 889, 894-99 (1987); People

       v. Creamer, 143 Ill. App. 3d 64, 68, 70-71 (1986); People v. Clements, 135 Ill. App. 3d 1001,

       1005, 1107-08 (1985); People v. Racanelli, 132 Ill. App. 3d 124, 132-33 (1985) (the defendants,

       who possessed IQ scores similar to that of defendant in this case, were found to have knowingly

       and intelligently waived their rights). Other facts to consider include defendant's age, prior

       experience with the criminal law, and emotional stability. Smith, 178 Ill. App. 3d at 982. Both

       the characteristics of the accused and details of the interrogation must be considered (id.),

       including the manner in which a defendant answers questions (People v. Williams, 128 Ill. App.

       3d 384, 392 (1984)).

¶ 19          A review of the record here shows that even if trial counsel had introduced evidence of

       Richardson's limited mental capabilities at the hearing on the motion to suppress, the trial court

       would still have denied his motion because, based on the totality of the circumstances, it is clear

       that Richardson knowingly and intelligently waived his Miranda rights.          Richardson's pre-

       sentencing psychological evaluation indicated that he was in the "upper echelon of mild mental

       retardation," but that despite his cognitive impairment, at the time of evaluation, the problem was

       not so severe as to compromise his ability to understand the nature and purpose of the

       proceedings pending against him.      The evaluation noted that Richardson conveyed a clear

       awareness of the status of his case, an adequate understanding of courtroom procedure, the role

       and responsibilities of key courtroom personnel, and dispositions that he faced. The record also

                                                      -7-
       No. 1-11-3075

       shows that he had a criminal history in that he had been previously arrested and adjudicated a

       delinquent minor for aggravated battery.

¶ 20          Furthermore, Richardson was 16 years old when he waived his Miranda rights in this

       case, and the videotaped statement showed him being advised of and waiving his Miranda rights

       before providing the details of what he did to his infant daughter. In waiving his rights, ASA

       Heil asked Richardson if he knew what each right meant and then asked him to explain what the

       right meant to him, which he did.          Where extensive testimony reveals that a defendant

       understood his Miranda rights and gave responsive answers to questions, a court may properly

       find that a defendant knowingly and intelligently waived his right despite a low intelligence

       level. See People v. Scott, 148 Ill. 2d 479, 511-12 (1992) (finding a valid waiver of his rights

       where the defendant indicated that he understood them and gave responsive answers to

       questions, despite having an IQ of 75 and suffering from schizophrenia). It is also noteworthy

       that Richardson's mother was with him throughout the questioning, and she never suggested to

       any of the officers or assistant State's Attorney that her son was mentally impaired or would not

       be able to understand his rights. Richardson's claim that his inability to spell his girlfriend's

       name, "Cyntoria," demonstrated that he suffered from a mental impairment is not persuasive.

¶ 21          We also hold that Richardson failed to make an arguable claim that there was a

       reasonable probability that the outcome of the trial would have been different had the videotaped

       confession been suppressed.      As we found in our decision on direct appeal following

       remandment from the supreme court, the evidence against defendant was overwhelming.

       Richardson, 401 Ill. App. 3d at 54. As the State points out, Richardson's confession was not the

       only evidence of his guilt that was introduced. Richardson's daughter was in good condition

       when she was left in defendant's care, but when the first officer arrived on the scene, the

       unconscious infant had bite marks, black and blue eyes and a swollen cheek. Richardson told the

                                                       -8-
       No. 1-11-3075

       responding officer that the baby had slipped in the bathtub the previous night and that he had to

       "whip" her after she vomited her cereal. James Franklin, who was 10 years old at the time, was

       present when Richardson spanked, punched, and shook his daughter. In his own trial testimony,

       Richardson admitted repeatedly shaking, biting, and hitting the infant on various parts of her

       body. The medical examiner testified that the baby sustained 61 different injuries, and his

       testimony regarding the locations and types of injuries found on the infant's body corroborated

       the testimony of Franklin and Richardson regarding how the injuries were inflicted. In light of

       the overwhelming evidence against Richardson, even absent the videotaped statement he made,

       we cannot say it is arguable that he was prejudiced by counsel's alleged deficient performance.

       Therefore, the petition lacks an arguable basis in law. Hodges, 234 Ill. 2d at 16. Accordingly,

       summary dismissal of the petition was proper.

¶ 22          In reaching this conclusion, we find People v. Turner, 56 Ill. 2d 201 (1973), People v.

       Bernasco, 185 Ill. App. 3d 480 (1989), and People v. Redmon, 127 Ill. App. 3d 342, 347 (1984),

       relied on by Richardson, distinguishable from this case. In all three cases, the records were, at

       best, unclear regarding whether the defendants understood their rights, and the reviewing courts

       found that they had not knowingly and intelligently waived their Miranda rights. See Turner, 56

       Ill. 2d at 206-07 (police were aware the 25-year-old defendant with an IQ of 70 had a history of

       mental deficiency, and there was no evidence showing that the defendant's request for an

       attorney prior to his polygraph examination was ever relayed to police); Bernasco, 185 Ill. App.

       3d at 483-84, 491 (the 17-year-old defendant had an IQ of 80, had no prior experience with the

       criminal justice system, was interrogated outside the presence of a parent, and did not understand

       his rights or what "waiver" meant); Redmon, 127 Ill. App. 3d at 346, 350 (the 17-year-old

       defendant had an IQ of about 70, and the court held that there was obvious confusion concerning

       his rights). Unlike the above cases, Richardson understood and explained each right, had been

                                                       -9-
       No. 1-11-3075

       previously arrested and adjudicated delinquent, and had his mother with him during the

       interrogation.

¶ 23                                    SUPPLEMENTAL ANALYSIS

¶ 24          We now have the benefit of our colleague's views which were not available to us when

       this order was originally filed on October 22, 2014. People v. Richardson, 2014 Ill. App. (1st)

       113075-U.       We respond briefly.   We will not address the dissent's extended criticism of

       perceived defects in the Post Conviction Hearing Act (725 ILCS 5-122-1 et seq. (West 2010)),

       the wisdom of the mandatory transfer provision of the Juvenile Court Act of 1987 (705 ILCS

       405/5-130 (West 2010)) or the ability of juveniles to waive their Miranda rights, as those issues

       have never been raised or briefed by the parties and thus are not before us.

¶ 25          As it pertains to this case, the dissent labels Richardson's defense counsel as "missing in

       action" and "ineffective in the extreme" based primarily on the assertion that she failed to present

       evidence of Richardson's mental capacity. Infra ¶¶ 45, 173. Such unnecessary rhetoric disserves

       the talented and dedicated lawyers who represent indigent defendants in this state. The record

       reflects that Richardson's counsel was a member of the Homicide Task Force of the Cook

       County public defender's office, a division reserved for the most experienced, skilled and well-

       trained lawyers. See People v. Simpson, 204 Ill. 2d 536, 574-75 (2001); Ill. S. Ct. R. 714 (eff.

       Jan. 1, 2005; reserved eff. Jan. 1, 2011). At the time of the 2005 trial, Richardson's counsel had

       been a lawyer for nearly 20 years. While even the most experienced lawyers make mistakes, in

       order to ascribe to the dissent's views, we would have to believe that Richardson's counsel made

       a conscious decision to abandon her client. Such an accusation, which permeates the dissent, has

       far-reaching implications for a member of the legal profession and is one we should hesitate to

       level without compelling justification.



                                                      - 10 -
       No. 1-11-3075

¶ 26           But far from being ineffective, Richardson's counsel, possessing virtually no evidence to

       work with, caused Richardson's jury to question whether it could convict him of a lesser offense

       (which, under the circumstances of this case, it could not). The fact that defense counsel's

       argument—in a case where the evidence established that defendant mercilessly beat an infant for

       30 minutes inflicting injuries to her brain, virtually every major organ and multiple skeletal

       structures—caused this jury to hesitate to convict her client of first degree murder is a testament

       to counsel's talent and resourcefulness and she does not deserve the harsh criticism she receives

       from the dissent.

¶ 27           The fundamental presumption underlying the dissent is that there was evidence available

       that would have been favorable to Richardson if only his lawyer had bothered to obtain and

       present it. An analysis of the validity of that presumption begins with our earlier opinion in this

       case.   There we observed that Richardson's ineffective assistance claim rested on two

       possibilities: (1) either his counsel, despite her many representations to the contrary to the trial

       court, failed to have him evaluated; or (2) counsel did have him evaluated, obtained information

       favorable to his defense and simply failed to use it. Richardson, 401 Ill. App. 3d at 47. Because

       those matters were outside the record in Richardson's direct appeal, we commented that they

       would be more appropriately addressed in a postconviction petition. Id. at 48.

¶ 28           But the suggestion that matters are more appropriately addressed in a postconviction

       petition and the conclusion that the petition ultimately filed states the gist of a constitutional

       claim are two different issues. Here, despite the dissent's emphasis on Richardson's pro se status

       and its characterization of Richardson's petition as "inartful" and "incomplete," an examination

       of the petition reveals that it is remarkably cogent and replete with legal arguments and citation

       to authorities. As the face of the petition reveals, Richardson was assisted by another inmate in

       preparing the petition, and while he did not have the assistance of counsel, he certainly managed

                                                      - 11 -
       No. 1-11-3075

       to file a petition several iterations removed from the bare-bones petitions unrepresented prisoners

       usually file.

¶ 29           Moreover, analysis of the substance of the petition conclusively eliminates the first

       possible basis for Richardson's ineffective assistance claim: that his defense lawyer failed to have

       his mental capacity evaluated. Although we have excused Richardson's failure to provide a

       verification affidavit, we cannot overlook factual omissions or supply them ourselves. " '[W]hile

       a pro se petition is not expected to set forth a complete and detailed factual recitation, it must set

       forth some facts which can be corroborated and are objective in nature or contain some

       explanation as to why those facts are absent.' " Hodges, 234 Ill. 2d at 10 (quoting People v.

       Delton, 227 Ill. 2d 247, 254-55 (2008)). A postconviction petitioner's failure to either attach the

       necessary affidavits, records or other evidence or explain their absence is fatal to a post-

       conviction petition and " 'by itself justifies the petition's summary dismissal.' [Citation.]" Delton,

       227 Ill. 2d at 255. Richardson would certainly know whether he was evaluated prior to the

       hearing on his motion to suppress. Yet, his petition does not allege that he was not evaluated,

       nor does he provide an affidavit attesting to that fact.

¶ 30           Therefore, the viability of Richardson's petition depends on the claim that his defense

       counsel did, in fact, have him evaluated, obtained evidence that would have been favorable to his

       defense and decided not to use it. But again, Richardson's petition does not contain facts to

       support such a claim. As the subject of the evaluation, Richardson would have been entitled to

       obtain a copy of it. Yet, Richardson does not attach a copy of his evaluation or explain any

       attempts he made to obtain it. So in order to find that Richardson's petition states the gist of a

       constitutional claim, we must assume that the evaluation produced evidence favorable to

       Richardson, without factual allegations or any evidence to that effect and no explanation for its

       absence. This is, again, a defect in the petition that the law does not allow us to excuse, just as

                                                        - 12 -
       No. 1-11-3075

       courts do not excuse a postconviction petitioner's failure to articulate the substance of a missing

       witness' testimony claimed to be favorable. People v. Harris, 224 Ill. 2d 115, 142 (2007).

¶ 31          The petition claims that defense counsel was ineffective because she failed to present

       evidence of Richardson's mental capacity, a mantra adopted by the dissent. The unspoken

       assumption in that claim is that the evidence (presuming it existed) would have aided Richardson

       on either the motion to suppress or at trial. But the dissent does not articulate how defense

       counsel could have presented evidence of Richardson's mental capacity (presumably through the

       testimony of the mental health professional who evaluated him) without disclosing and opening

       the door to inquiry into the remainder of that expert's report, i.e., Richardson's ability to

       understand and waive his Miranda rights (which was the stated purpose of the evaluation in the

       first place). See Ill. S. C. R. 413 (eff. July 1, 1982) (requiring defense disclosure of, inter alia,

       reports of mental health examinations). Given defense counsel's repeated representations to the

       court that she needed additional time to have Richardson evaluated, it is obvious that Richardson

       was, in fact, evaluated and the evaluator reached conclusions not helpful to Richardson's motion

       to suppress, thus readily explaining the lack of such evidence. While we do not assume that

       Richardson was smarter or had a higher IQ at the time of his suppression hearing, there is no

       reason to believe that he was less competent to understand and waive his Miranda rights at 16

       than he was when he was found competent for sentencing at age 20. And if Richardson was

       capable of understanding and waiving his Miranda rights, it stands to reason that he was likewise

       capable of understanding right from wrong and the criminality of his conduct. Indeed, the

       evidence showed that on the day he killed his daughter, Richardson told the police and the

       downstairs neighbor that his daughter sustained injuries when she fell in the bathtub and claimed

       that she had bite marks on her when he picked her up from her mother's apartment. Richardson's




                                                       - 13 -
       No. 1-11-3075

       efforts to deflect responsibility manifest a concomitant ability to form the requisite intent to

       commit first degree murder.

¶ 32          The dissent repeatedly criticizes defense counsel for failing to introduce evidence at the

       suppression hearing and at trial regarding Richardson's "family history." An effort by the

       defense to adduce evidence that Richardson was subjected to corporal punishment at the hands of

       his mother and that she was a drug addict would clearly have entailed evidence of matters

       collateral to both his ability to understand and waive his Miranda rights and the charges on trial.

       Richardson's low IQ and his unfortunate upbringing do not constitute legal defenses to murder

       and the dissent does not cite any authority that so holds. Thus, Richardson was not entitled to a

       voluntary manslaughter instruction because, as the trial court correctly found, the brutal,

       prolonged beating of his daughter could not fairly be characterized as reckless conduct. People

       v. DiVincenzo, 183 Ill. 2d 239, 251 (1998) ("an involuntary manslaughter instruction is generally

       not warranted where the nature of the killing, shown by either multiple wounds or the victim's

       defenselessness, shows that defendant did not act recklessly"); People v. Daniels, 301 Ill. App.

       3d 87, 96 (1998) ("severe and vicious beatings of helpless victims cannot be described by any

       rational jury as involuntary manslaughter"). This was not, after all, a broken arm that was

       twisted in anger or a head injury that resulted from a single blow.           Richardson's IQ and

       background were relevant to sentencing and that is where they were properly considered by the

       trial court, another undeserving target of the dissent's unwarranted criticism.

¶ 33          The presumption underlying Richardson's postconviction petition—that his lawyer was in

       possession of evidence regarding his mental capacity that would have been favorable to him and

       elected not to use it—is precisely the type of "fanciful" claim that is properly dismissed at the

       first stage. Hodges, 234 Ill. 2d at 16-17.

¶ 34          For the foregoing reasons, we affirm the judgment of the circuit court.

                                                       - 14 -
       No. 1-11-3075

¶ 35          Affirmed.

¶ 36          PRESIDING JUSTICE PUCINSKI, dissenting.

¶ 37          This is wrong.

¶ 38          I disagree with the majority and believe that they are wrong on the letter of the Post-

       Conviction Hearing Act as it is written and the spirit which created it.

¶ 39          This matter is before us on defendant Andre Richardson's appeal of the trial court's denial

       of his pro se postconviction petition at the first stage as frivolous and without merit.

¶ 40          He argues that his defense attorney was ineffective because she did not present an

       evaluation of his mental ability in support of his motion to suppress his video statement.

¶ 41          This case is a great example of the why the postconviction petition procedure as written

       and applied rings hollow.

¶ 42          Richardson, pro se, is doing what this court told him to do – he has filed a postconviction

       petition. Without assistance from any attorney he has missed several important issues that might

       be raised in his petition. "A determination as to whether trial counsel was ineffective as to this

       issue is a claim that would best be raised in a postconviction petition. Where information not of

       record is critical to a defendant's claim, it must be raised in a collateral proceeding." People v.

       Richardson, 401 Ill. App. 3d 45, 48 (2010) (Richardson III).

¶ 43          His defense attorney's failure to provide an evaluation of his mental ability and family

       history for the motion to suppress was bad enough.            But then she failed to provide that

       information to the jury for its deliberations. And she failed to provide that information to the

       judge to give a basis for the request for the involuntary manslaughter instruction. And because

       there was no record, no information, no evidence presented to support the involuntary instruction

       the judge refused to give it. Finally, without any evidence presented by the defense about



                                                       - 15 -
       No. 1-11-3075

       Richardson's mental ability and family history when he was arrested at age 16, and only the

       presentence report and behavioral exam ordered by the judge after trial when he was 20, the

       judge did not have the option of considering his behavior when he was 16 at the time of the

       crime, and instead relied on information about the 20-year-old standing in front of her when it

       came to sentencing.

¶ 44          The missing defense evidence had an impact on the motion to suppress (denied), the

       request for an involuntary instruction (denied, no evidence to support it), the jury's understanding

       of the element of the intent of the defendant in this case and on the sentence. It is a complete

       understatement to say that defense counsel was ineffective; she was missing in action.      It is a

       worse understatement to say that Richardson was not prejudiced by his defense counsel's

       mistakes because every step of the way, from the trial court, through the appellate court and to

       the supreme court, every decision has emphasized that there was "no evidence" and "not a

       scintilla of evidence" to support the defense.

¶ 45          The trial court said: "[I]f there were any – and I will emphasize any – credible evidence to

       support a reckless act I would have given the involuntary instruction." (Emphasis added.) And:

       "There is not one scintilla of evidence that the defendant did anything but beat this child ***

       your motion for mistrial denied." (Emphasis added.)

¶ 46          In reversing People v. Richardson, 376 Ill. App. 3d 537 (2007) (Richardson I), the

       supreme court said: "However, at the suppression hearing, defendant presented no evidence or

       argument of any mental deficiency that would render his inculpatory statement involuntary, and

       the circuit court made no findings relating thereto." (Emphasis added.) People v. Richardson,

       234 Ill. 2d 233, 263 (2009) (Richardson II). And: "Indeed, the issue of defendant's mental

       capacity was not raised until sentencing." Id. at 263 n.7. And: "After reviewing the entire record,



                                                        - 16 -
       No. 1-11-3075

       we conclude that there is no evidence that defendant's will was overborne." (Emphasis added.)

       Id. at 265.

¶ 47           The appellate court said (on remand) in Richardson III: "[D]efense counsel offered no

       evidence to support the claim that defendant was unable to waive his Miranda rights ***."

       (Emphasis added.) Richardson III, 401 Ill. App. 3d at 47. "There is not a scintilla of evidence to

       support a finding that defendant acted recklessly rather than knowingly and intentionally."

       (Emphasis added.)       Id. at 51.     And, (on the issue of intent and admission of graphic

       photographs): "[W]e find that the trial court did not abuse its discretion in failing to give an

       involuntary manslaughter instruction because the evidence did not warrant such an instruction."

       (Emphasis added.) Id.

¶ 48                                          Postconviction Petition

¶ 49           The Illinois Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West

       2010)) provides that any person convicted of a crime may challenge the conviction or sentence

       where he can allege that a violation of the federal or state constitution has denied him a

       fundamental right. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). The first step is for the

       circuit court to review the petition to see if it is "frivolous or is patently without merit" and, if so,

       to dismiss the case. 725 ILCS 5/122-2.1(a)(2) (West 2010). At this stage, the petitioner only has

       to present the gist of a constitutional claim. People v. Edwards, 197 Ill 2d 239, 244 (2001). At

       the first stage, all well-pleaded allegations are taken as true and liberally construed in favor of

       the petitioner. People v. Brooks, 233 Ill. 2d 146, 153 (2009). We review the dismissal of a

       petition at the first stage de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010). A petition may

       be dismissed at the first stage only if it "has no arguable basis either in law or in fact." People v.

       Hodges, 234 Ill. 2d 1, 11-12 (2009). A petition lacking an arguable basis in law or fact is one

       "based on an indisputably meritless legal theory or a fanciful factual allegation." A claim

                                                         - 17 -
       No. 1-11-3075

       completely contradicted by the record is an example of an indisputably meritless legal theory.

       Hodges, 234 Ill. 2d at 16.

¶ 50          The Act provides that any claim not raised in defendant's original petition or in an

       amended petition is waived (725 ILCS 5/122-3 (West 2010)), and our supreme court has held

       that a claim that was not included in the postconviction petition cannot be raised for the first time

       on appeal (People v. Pendleton, 223 Ill. 2d 458, 475 (2006); People v. Jones, 213 Ill. 2d 498,

       507-08 (2004)).

¶ 51          Our supreme court has observed a low threshold for survival of a petitioner's claims at the

       first stage, noting that most petitions at this point are drafted by defendants with little legal

       knowledge. People v. Torres, 228 Ill. 2d 382, 394 (2008). To that end, we must liberally

       construe the petition and defendant's allegations. People v. Cruz, 2013 IL App (1st) 091944, ¶

       48. The allegations of the petition, taken as true and liberally construed, need only present the

       gist of a constitutional claim. People v. Harris, 224 Ill. 2d 115 (2007).

¶ 52          Further, the supreme court has explained that where a pro se defendant raises only one

       issue and could be said to have included other allegations under our liberal construction the

       matter must be decided in defendant's favor. In Hodges, 234 Ill. 2d at 21, the defendant filed a

       pro se postconviction petition in which he alleged ineffective assistance of counsel and focused

       entirely on his self-defense theory. The State argued he made a choice of what to appeal and

       should be held to it. The supreme court said the petition "could be said to have included

       allegations regarding 'unreasonable belief' second degree murder" and found that the denial of

       the petition as frivolous and without merit because "defendant's legal theory of ineffective

       assistance was not indisputably meritless." Hodges, 234 Ill. 2d at 21-22.

¶ 53          Beginning with our de novo review (see People v. Brown, 236 Ill. 2d 175, 184 (2010)

       ("The summary dismissal of a postconviction petition is reviewed de novo.")), we look to the

                                                       - 18 -
       No. 1-11-3075

       entire record to see if Richardson's allegation that his defense counsel was ineffective for failing

       to provide evidence of his mental ability to the attention of the court in his motion to suppress

       was reasonable. It is apparent that the failure to provide the evidence for the motion to suppress

       had a critical and damaging effect on the motion to suppress because without it the court had no

       evidence against which to weigh the voluntariness of his confession in the face of police abuse,

       and the appellate court had no evidence against which to weigh his waiver of his Miranda rights.

       In addition, looking at the entire record it is clear that the missing evidence impacted

       significantly and negatively on the defense theory that there was no intent to murder, the motion

       for a directed finding, the request for an involuntary manslaughter instruction, the motion for a

       mistrial and on sentencing. Taken as a whole, the record demonstrates clearly that defense

       counsel's failure at one point had a disastrous ripple effect on the entire trial.

¶ 54           Going to Richardson's claim that his counsel was ineffective because she did not perfect

       the argument on the motion to suppress with evidence that his confession was not voluntary, it is

       clear that the supreme court and appellate court did in fact consider this matter and ruled against

       Richardson; however, it is also clear that Richardson's proof of this fact is de hors the record and

       cannot be brought to light without the evidentiary hearing at the second stage of this petition,

       which is what this court told him to do.

¶ 55           First, Richardson's allegations in his petition must be taken a true unless rebutted by the

       record, which they are not. Brown, 236 Ill. 2d at 189 (quoting People v. Coleman, 183 Ill. 2d

       366, 385 (1998)). Here the record is crystal clear that defense counsel did not present any

       evidence of his mental ability. And, it is also clear that his only evidence of counsel's ineffective

       performance is outside the record in this case.

¶ 56           Recognizing that Richardson is exactly the kind of defendant the supreme court was

       considering in Torres, 228 Ill. 2d 382, i.e., an uneducated, immature defendant with limited legal

                                                         - 19 -
       No. 1-11-3075

       knowledge, and overlapping that with the fact that the Act itself prohibits any new claims on

       appeal of the dismissal of his first-stage petition, we see that the Act has effectively created a

       trap for the Richardsons of our state. We are, in effect, saying: "Do it yourself without any help,

       and do it right because if you blow it on the original petition your petition will be tossed out. We

       won't tell you that you can ask to amend your petition, and you won't get a lawyer to help you

       amend it." And then, to make matters worse – if they could be – we require the same judge who

       ruled against the defendant every step of the way to decide if the petition is frivolous and without

       merit.

¶ 57            Our supreme court has correctly pointed out that there is no constitutional guarantee of

       the right to a collateral action against a conviction, nor is there a right to an attorney if such

       action is permitted by statute, even when the issue itself is ineffective assistance of counsel. See

       People v. Ligon, 239 Ill. 2d 94 (2010). However, the Ligon court also held that "where *** the

       record is insufficient because it has not been precisely developed for the object of litigating a

       specific claim of ineffectiveness raised in the circuit court, thereby not allowing both sides to

       have an opportunity to present evidence thereon, such a claim should be brought on collateral

       review rather than direct appeal." Ligon, 239 Ill. 2d at 105 (citing People v. Bew, 228 Ill. 2d 122,

       134 (2008), citing Massaro v. United States, 538 U.S. 500, 504-06 (2003)).

¶ 58            So, our supreme court has said that matters outside the record must be brought in a

       postconviction petition. And, that under the Act as it is written, the defendant does not get an

       attorney to help at the first stage. That does not mean that the Act as written is right. The Act, to

       use Justice Freeman's term (used considering the Act in another context) is a "gotcha" (see

       People v. English, 2013 IL 112890, ¶ 55 (Freeman, J., specially concurring, joined by Burke,

       J.)).




                                                       - 20 -
       No. 1-11-3075

¶ 59          The pro se petition " 'is not expected to set forth a complete and detailed factual

       recitation, it must set forth some facts which can be corroborated and are objective in nature or

       contain some explanation as to why those facts are absent.' " People v. Hodges, 234 Ill. 2d 1, 10

       (2009) (quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008)). The pro se petition can be

       dismissed as frivolous and without merit "only if the petition has no arguable basis either in law

       or in fact." Hodges, 234 Ill. 2d at 12.

¶ 60          This petition is not frivolous. It has merit. My colleagues on the majority are ignoring

       the obvious. Defense counsel was ineffective. The trial court, the appellate court and the

       supreme court all referenced the fact that no evidence of his mental ability was presented. And

       appellate counsel was equally ineffective for failing to raise several significant issues that should

       have been raised. Richardson's petition should be allowed to go to the second stage with an

       attorney who can help him amend his petition to identify all the ways this trial went wrong.

¶ 61          It is no consolation that Richardson has the legal ability to file a successive petition, since

       in order to do that he will need leave of court, under tighter standards. 725 ILCS 5/122-1(f)

       (West 2010). This is an unlikely possibility, since, again, it has to go to the same judge who

       denied the first petition and ruled against Richardson during the trial.

¶ 62          It is ironic that this judge in particular should find this petition frivolous and without

       merit since she so convincingly repeated that there was no evidence presented by the defendant

       to support his case. If there was no evidence presented by defense counsel, yet there were

       findings four years later in his presentence evaluation as to his mental ability, the defense was at

       least arguably ineffective. "At the first stage of proceedings under the Act, a petition alleging

       ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable that

       counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable

       that the defendant was prejudiced." People v. Cathey, 2012 IL 111746, ¶ 23 (citing Hodges, 234

                                                       - 21 -
       No. 1-11-3075

       Ill. 2d at 17). I believe it is more than arguable that defense counsel's performance fell below an

       objective standard of reasonableness and it is clearly arguable that the defendant was prejudiced

       by this ineffective representation.

¶ 63          And, let us not forget that a ruling on the initial postconviction petition has a res judicata

       effect with respect to all claims that were raised or could have been raised in the petition. People

       v. McDonald, 364 Ill. App. 3d 390, 392-393 (2006). The Act provides that any claim of

       substantial denial of constitutional right not raised in a defendant's original postconviction

       petition is waived. 725 ILCS 5/122-3 (West 2010).

¶ 64          So, a defendant like Richardson is expected to roll his constitutional dice. He gets one

       roll. This is Illinois's constitutional equivalent of Sky Masterson's all-or-nothing-roll in Guys

       and Dolls: With the system taking the place of the house on this roll, the odds are way in favor

       of the house. And this is a country, and a state, in which our fundamental guiding principle is

       that even bad guys have rights. More bluntly, it is a constitutional crap game.

¶ 65          What is shocking is that the first-stage petition, usually prepared pro se by the defendant,

       is the linchpin for the whole postconviction procedure, and it is so totally susceptible to the traps

       of the Act.

¶ 66          With 96,000 attorneys in Illinois, it is hard to believe that none of them are able and

       willing to provide pro bono assistance at this first stage. Recognizing that the State Appellate

       Defender is already overburdened, it is clear that no one wants to put more responsibility on that

       office. Yet, as with this case, once the first-stage petition was tossed, the State Appellate

       Defender was appointed anyway to represent Richardson on the appeal of that order. Now,

       however, their hands are tied to the petition that Richardson so inartfully and incompletely

       prepared. Richardson could never have been expected to challenge his defense attorney for

       ineffectiveness on other matters, nor could he be reasonably expected to challenge his appellate

                                                       - 22 -
       No. 1-11-3075

       attorney for the continuation of that ineffectiveness.        Our state promises a hearing on his

       constitutional issues without any meaningful way for most pro se petitioners to get there. The

       Act, as it is written, is not working.

¶ 67                                            Procedural History

¶ 68           This postconviction petition should be allowed to proceed to the second stage because it

       states the gist of a constitutional issue and this court told Richardson to do it this way.

¶ 69           After remand from the supreme court, our colleagues in the First District said:

               "Whether an evaluation was in fact completed and what the results of that evaluation

               might be are matters outside the record in this case. *** A determination as to whether

               trial counsel was ineffective as to this issue [failure to present evidence of an evaluation

               at the suppression hearing] is a claim that would best be raised in a postconviction

               petition. Where information not of record is critical to a defendant's claim, it must be

               raised in a collateral proceeding." Richardson III, 401 Ill. App. 3d at 48.

¶ 70           A brief review of the procedural history of this case is needed to understand why I feel

       this dissent is necessary.

¶ 71           Richardson was arrested in February, 2001. He was found guilty of murder in the death

       of his one-year-old daughter in a jury trial in January, 2005.

¶ 72           He filed a direct appeal and raised four issues, discussed below.

¶ 73           The appellate court reversed on the question of whether his confession was voluntary

       because he had been injured while in police custody, but did not decide the other three issues.

       Richardson I, 376 Ill. App. 3d 537.

¶ 74           The State was granted leave to appeal and the Illinois Supreme Court reversed the

       appellate court on the voluntariness of the confession based on his injury while in police custody


                                                        - 23 -
       No. 1-11-3075

       and remanded back to this court to consider the remaining three issues. Richardson II, 234 Ill.

       2d 233.

¶ 75          The appellate court, in Richardson III, 401 Ill. App. 3d 45, affirmed the trial court on the

       three remaining issues, finding: (1) trial counsel's failure to call an expert during the suppression

       hearing concerning Richardson's mental impairment and its effect on his ability to waive his

       Miranda rights did not fall below an objective standard of reasonableness; (2) defendant was not

       entitled to a jury instruction in involuntary manslaughter, and (3) the trial court's admission of 27

       graphic photos of the dead child depicting her internal injuries was not an abuse of discretion.

¶ 76          There was no further appeal on those three issues.

¶ 77          Richardson then filed a pro se postconviction petition alleging ineffective assistance of

       counsel for failure to provide an evaluation to support the motion to suppress where his mental

       disability affected his ability to waive his Miranda rights.

¶ 78          The trial court denied the postconviction petition as frivolous and without merit.

¶ 79          But remember, the supreme court heard the question of the confession as to its

       voluntariness because of his injury while in police custody. The supreme court did not consider

       whether the failure to provide an evaluation affected his ability to knowingly waive his Miranda

       rights because the appellate court, in Richardson I, did not consider that question. Nor did the

       supreme court decide on the issue of the involuntary manslaughter instruction, since it was not

       before that court. And while the appellate court on remand did consider these issues and ruled

       against the defendant, it was that very court that told Richardson to file a postconviction petition

       because the proof of his allegations is not in the record and so can only be determined in a

       collateral proceeding after an evidentiary hearing.

¶ 80          Richardson appealed the denial of the postconviction petition and the State Appellate

       Defender was appointed to represent him.

                                                       - 24 -
       No. 1-11-3075

¶ 81          On appeal the majority would affirm the denial of the postconviction petition.

¶ 82                             Ineffective Assistance of Defense Counsel

¶ 83          "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate

       that counsel's performance was deficient and that the deficient performance prejudiced the

       defendant. [Citation.] More specifically, a defendant must show that counsel's performance was

       objectively unreasonable under prevailing professional norms and that there is a 'reasonable

       probability that, but for counsel's unprofessional errors, the result of the proceeding would have

       been different.' " Cathey, 2012 IL 111746, ¶ 23 (quoting Strickland v. Washington, 466 U.S.

       668, 694 (1984)); U.S. Const., amend. VI.

¶ 84          In Richardson's case the defense attorney failed to provide evidence of his mental

       capacity or family environment. At the suppression hearing this evidence would have been

       important for the judge to consider. During the trial this evidence would have been significant

       for the jury to consider in evaluating his behavior and whether the State had proved the element

       of intent on the first degree murder charge.           In the instruction phase this evidence was

       fundamental to the request for the involuntary manslaughter instruction. There was no strategic

       purpose for failing to provide this evidence. See, e.g., People v. Diaz, 2014 IL App (1st)

       123400-U, ¶ 22; People v. McPhee, 256 Ill. App. 3d 102, 110-11 (1993). I am persuaded by the

       reasoning in Diaz, that where such evidence "provides the strongest defense to the State's case,

       the defendant has shown that his counsel provided objectively unreasonable assistance." Diaz,

       2014 IL App (1st) 123400-U, ¶22; see Nulle v. Krewer, 374 Ill. App. 3d 802, 806 n.2 (2007)

       (although opinion unpublished, the court is free to deem it persuasive). In this case the defense

       was lack of intent to murder. Clearly his mental ability and family history provide compelling

       evidence to support the defense theory. Leaving it out cannot be strategic.



                                                     - 25 -
       No. 1-11-3075

¶ 85          My colleagues on the appellate court on remand in Richardson III said that they would

       not speculate about the evidence that was not there. However, we have the fact that four years

       after the crime, in 2005, Richardson was evaluated and found to be have "a full scale IQ of 61,

       which falls within the extremely low range of intellectual functions and ranks him in the 0.5th

       percentile," and that he was "in the upper echelon of mild mental retardation" and had a third-

       grade reading level after four years of special education while incarcerated at the Cook County

       Department of Corrections. Can anyone really believe that any evaluation done in 2001, four

       years earlier, would have shown him to be less mildly mentally retarded, or have a higher IQ, or

       know how to read better? We are not supposed to leave common sense at the door.

¶ 86          The second prong of the Strickland test is whether the defendant was prejudiced by the

       ineffective assistance of counsel. To establish prejudice "[t]he defendant must show that there is

       a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

       would have been different. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome." Strickland, 466 U.S. at 694. For Richardson, that reasonable

       probability is shown from a number of facts from his trial: (1) in denying the motion to suppress

       the court found there was no evidence to support Richardson's claim that his video statement was

       the result of the physical abuse at the police station; (2) in denying the motion for a directed

       finding the court had no evidence on which to evaluate the State's proof of Richardson's intent to

       murder beyond a reasonable doubt; (3) in denying the involuntary manslaughter instruction the

       court specifically found that there was no evidence to support recklessness; (4) the jury itself sent

       out a note asking if they could consider a lesser offense; (5) in sentencing the court had no

       evidence presented by the defense to consider when weighing the culpability of the 16 year old

       offender arrested in 2001 as compared to the 20 year old defendant on trial in 2005; (6) the

       supreme court had no evidence to support a finding that the confession was involuntary; (7) the

                                                       - 26 -
       No. 1-11-3075

       appellate court had no evidence to support an involuntary instruction; and (8) the appellate court

       had no evidence to support defendant's argument that his mental impairment affected his ability

       to waive his Miranda rights.

¶ 87             This cascade of events demonstrates prejudice to the defendant because of defense

       counsel's failure to provide evidence of his mental ability and family history.

¶ 88             I believe Richardson has met both prongs of the Strickland test.

¶ 89                                           Postconviction Traps

¶ 90             The appellate court in Richardson III told him that a postconviction petition was the way

       to get the failure of his defense counsel to provide an evaluation of his mental condition in the

       suppression hearing considered since it would require dealing with evidence that was outside the

       record.

¶ 91             And Richardson, pro se, followed the court's advice. Only he did not raise other defects

       in the defense which bolstered his claim that his constitutional right to effective assistance of

       counsel had been violated in his pro se postconviction petition; for example, the fact that the

       missing evaluation had a significant impact on not only the motion to suppress his confession but

       also and perhaps more importantly on his defense to the element of intent to murder, on the

       matter of the trial court's refusal of an involuntary manslaughter instruction and later on

       sentencing. Nor could he have known that his appellate counsel was also ineffective for not

       raising these and other matters.

¶ 92             Then after the pro se petition was denied, the court appointed an attorney to represent

       him on the appeal of the denial of the petition, but it is already too late because this appellate

       counsel is stuck with the petition he filed, not the one he could have filed if he had been given an

       attorney to help him prepare and/or amend his postconviction petition in the first place.



                                                        - 27 -
       No. 1-11-3075

¶ 93           More seriously, this attorney cannot now add to his petition the ineffective assistance of

       appellate counsel in the direct appeal.

¶ 94           Richardson is caught in Illinois criminal justice's postconviction trap and he is being

       denied justice, access to justice and any sort of fair play by the rules that are in place today.

¶ 95           We have the resources to appoint an attorney to assist him in appealing the denial of a

       pro se petition that he messed up. But we deny him the attorney to get the petition right the in

       the first instance.

¶ 96           That is fundamentally unfair, but it is particularly vexing when you consider: (1) our

       absolute belief that every trial should be fair; (2) incarcerated defendants who are preparing pro

       se postconviction petitions are totally at the mercy of their prison situation and literally cannot

       just go to the law library when they want, or get assistance in prison; and (3) may be, like

       Richardson, a person of limited education and limited intelligence.

¶ 97           The problem is that Richardson, now about 29, is no longer the skinny child he was at

       trial. And, his progress in reading while he was at Cook County jail for four years waiting trial

       indicates that by the age of 29, if he was allowed to continue with any kind of school in prison,

       he will be more articulate and hopefully have a higher reading level: all of which will make it

       much harder to see the child-father that was actually arrested in 2001 and on trial in 2005.

       Richardson acting pro se is in no position to evaluate all the parts of his trial below or his direct

       appeal and is stopped by the supreme court ruling in his case from re-arguing the voluntariness

       of his confession.

¶ 98           If Richardson is not allowed to go forward with this pro se postconviction petition, to the

       second stage where he will be appointed an attorney to amend his petition, his only remaining

       remedy will be to seek permission to file a successive postconviction petition, which is a much

       steeper climb.

                                                        - 28 -
        No. 1-11-3075

¶ 99           For all of the reasons above and below, I strongly believe that Richardson should be

        allowed to proceed to the second stage, be assigned an attorney and be allowed to file an

        amended postconviction petition.

¶ 100          Trying to find your way through the legal complications is daunting enough for qualified

        and skilled appellate attorneys; expecting pro se defendants to do it is just paying lip service to

        the whole notion of postconviction petitions: the law says they are entitled to file one, but the

        system tells them that when they do not do it exactly right: "Oh well, too bad, you're out of

        luck." This is not access to justice.

¶ 101                                           Facts of the Case

¶ 102          Andre Richardson was found guilty by a jury of the first degree murder of his daughter,

        Diamond. The one-year-old child suffered multiple serious injuries from Richardson and died at

        about 11:45 p.m. on February 9, 2001. Richardson was arrested at 3:30 p.m. on February 9,

        2001 and charged with child abuse. He was held at the police station until about 7:30 p.m., when

        he was questioned by detectives. It is uncontradicted that between his arrest and 7:30 p.m. he

        was injured at the hands of police personnel in the police lockup resulting in a visibly black and

        swollen left eye. He was 16 at the time. His mother was called to the station at about 5 p.m.; she

        saw him and saw his eye was not injured but was not allowed to talk him. She was told she had

        to go home and bring proof of his age. When she returned she was not allowed to talk with him,

        but she did see him and observed the injury to his eye.           When Detective Zalatoris saw

        Richardson at about 7 p.m. he saw the injury to his eye but did not inquire about it or do anything

        about it. Youth officer Nolan saw Richardson about 7:30 or 8 p.m. and saw that his left eye was

        swollen, that he was still with arresting officer Hayes, and that the mother was at the station.

        Nolan did not do anything about Richardson's eye injury. The police department's Office of

        Professional Standards (OPS) had been called and was beginning its investigation of the injury to

                                                       - 29 -
        No. 1-11-3075

        the juvenile; however, OPS was not allowed to talk to Richardson. Nolan gave the defendant his

        Miranda warnings; however, there is no signed waiver from the 16-year-old or his mother.

        Nolan called felony review and told Richardson he could be tried as an adult but did not tell him

        what the charge would be. Detectives O'Connell and Zalatoris along with youth officer Nolan

        and the defendant's mother saw Richardson at about 9:08 p.m. The police questioned him for

        about an hour, all noticing his visibly injured eye. Youth officer Nolan read the Miranda

        warnings again. Again, no written waiver was obtained from Richardson or his mother. No one

        told Richardson what the possible charges might be. Detective Zalatoris testified that the mother

        did not talk to Richardson before the actual questioning that began at 9:08 p.m. At that time the

        detectives and youth officer questioned Richardson for about an hour. The mother was present

        for this session. It was after the questioning that she was left alone with her son.

¶ 103          At 10 p.m. Assistant State's Attorney Heil arrived and talked to Detectives O'Connell and

        Zalatoris and youth officer Nolan. Heil then went to the hospital to check on the condition of

        Diamond. He learned that Diamond died at about 11:45 p.m.

¶ 104          At 12:28 a.m. on February 10, 2001 Heil returned to Area 1 and began questioning

        Richardson. Richardson's mother, Detective O'Connell and youth officer Nolan were present.

        Heil testified that he gave Richardson his Miranda warnings, but again there is no written

        waiver; that he took no notes; that he told the defendant he could be charged as an adult because

        of the seriousness of the matter; and that the officers left at that time. Heil did not tell the

        defendant that he would be charged with murder, although he did tell the defendant that his child

        had died. Although the defendant's mother testified that Nolan grabbed her, pushed her, shouted

        at her, called her a "bitch" and told her to shut up, youth officer Nolan testified that he did none

        of those things and that he did not tell Richardson that he would be charged with child

        endangerment, that he could go home if he talked, or that he would never go home.

                                                        - 30 -
        No. 1-11-3075

¶ 105            At 9:27 a.m. on February 10, 2001 Richardson gave a video statement to Heil, at which

        his mother and youth officer Nolan were present. Richardson and his mother both signed the

        consent to video the statement, but that consent does not include Miranda waivers. Richardson

        was led through his Miranda warnings in the video statement and agreed that he understood each

        of them; however his mother was not asked if she agreed, and did not speak up in disagreement

        during the video.

¶ 106            Richardson had by then been in custody since 3:30 p.m. the day before and had a

        significant injury to his eye.

¶ 107                                    Automatic Transfer to Adult Court

¶ 108            There is another significant and troubling aspect of this case.

¶ 109            The State's Attorney chose to charge Richardson with first degree murder.

¶ 110            This is the State's Attorney's prerogative, and in 2001 under Illinois law, once a juvenile

        age 16 was charged with first degree murder, he or she was automatically transferred to adult

        court.

¶ 111            This means that all of the discretion is with the State's Attorney as to the charge, before

        the State's Attorney has ANY information about the juvenile.

¶ 112            Unlike the permissive transfer provisions, which require a hearing before a juvenile judge

        who will take evidence into consideration in deciding whether the juvenile should be transferred

        to adult court, the mandatory transfer act has no such oversight by anyone. A State's Attorney

        for whatever reason can decide the charge and the juvenile is completely and effectively at the

        mercy of the adult system from that moment forward. There are no published rules or protocols

        for the charging decision, there is no judicial review and there is no appeal.




                                                         - 31 -
        No. 1-11-3075

¶ 113          Much has been written about the difference between juveniles and adults. And no one

        denies that juveniles commit heinous crimes. Even in this case no one denies that Richardson

        inflicted terrible injuries to his daughter which led to her death.

¶ 114          There are two recent developments that may change this landscape.

¶ 115          As recently as October, 2014 the Illinois Supreme Court upheld the constitutionality of

        the mandatory juvenile transfer provision, although reluctantly, in People v. Patterson, 2014 IL

        115102, with a strong dissent from Justice Theis. In recognizing modern research showing the

        impact that juveniles' youth has on their judgment and actions, our supreme court wrote: "We do,

        however, share the concern expressed in both the Supreme Court's recent case law and the

        dissent in this case over the absence of any judicial discretion in Illinois's automatic transfer

        provision.      While modern research has recognized the effect that the unique qualities and

        characteristics of youth may have on juveniles' judgment and actions (see, e.g., Roper, 543 U.S.

        at 569-70; [citation]), the automatic transfer provision does not. Indeed, the mandatory nature of

        that statute denies this reality. Accordingly, we strongly urge the General Assembly to review

        the automatic transfer provision based on the current scientific and sociological evidence

        indicating a need for the exercise of judicial discretion in determining the appropriate setting for

        these proceedings in juvenile cases." Patterson, 2014 IL 115102, ¶ 111.

¶ 116          And, while Patterson was working its way through the courts, the Illinois legislature was

        considering House Bill 4538, legislation that would eliminate automatic transfers and require a

        hearing before a judge before a transfer to adult court could be made.

¶ 117          In an important move, House Bill 2404 (98th Ill. Gen. Assem., House Bill 2404, 2013

        Sess.) was recently signed into law, directing 17-year-olds charged with felony crimes to be tried

        in juvenile courts where rehabilitation is the goal.



                                                         - 32 -
        No. 1-11-3075

¶ 118          This movement away from automatic transfers has the support of the Campaign for

        Youth Justice and the John Howard Association, and automatic transfers have been researched

        thoroughly and disapprovingly by the Illinois Juvenile Justice Initiative in their work, Automatic

        Adult Prosecution of Children in Cook County, in which the authors state: "More than 30 years'

        of studies have consistently demonstrated that categorical treatment of children as adults

        prevents rehabilitation and positive development, fails to protect public safety and yields

        profound racial, ethnic and geographic disparities." Automatic Adult Prosecution of Children in

        Cook County, Illinois. 2010-2012 (Juv. Just. Initiative, Evanston, Ill.), Apr. 2014, at 3, available

        at   http://jjustice.org/wordpress/wp-content/uploads/Automatic-Adult-Prosecution-of-Children-

        in-Cook-County-IL.pdf (hereinafter Automatic Adult Prosecution). While this research focused

        on the years 2010 to 2012, it showed a troubling pattern of racial disproportion in Cook County

        in automatic transfer cases. One is left to wonder if the racial disproportion from l982, the year

        that automatic transfers went into effect, to 2010 was any less significant or troubling. See The

        Consequences Aren't Minor (Campaign for Youth Just.), Mar. 2007, available at

        http://www.campaignforyouthjustice.org/images/nationalreports/consequencesarentminor/CFYJ

        NR_ConsequencesMinor.pdf; In Their Own Words: Young People's Experiences in the Criminal

        Justice System and Their Perceptions of Its Legitimacy (John Howard Ass'n of Illinois), Dec. 6,

        2014, available at http://thejha.org/words; John Maki, April 9, 2014, Op-Ed: It's Time to Abolish

        Automatic Transfer (Juv. Just. Info. Exchange), Apr. 9, 2014, available at http://jjie.org/op-ed-

        its-time-to-abolish-automatic-transfer/.

¶ 119          Changing the law for future cases will not help Richardson; however, it is still important

        to note that there are many juveniles who committed crimes and were automatically transferred

        to adult court under the old law. We can only hope that in a manner consistent with the recent

        reviews of adult cases, State's Attorneys across the state will review their automatic transfer

                                                       - 33 -
        No. 1-11-3075

        cases to see which, if any, in the wake of new understanding of juvenile behavior merit a review,

        and that courts will view the opportunity to take a fresh look at those cases as a chance to heed

        the lessons of science and apply them in the spirit of justice.

¶ 120          Richardson was charged with murder as an adult under section 5-130 of the Juvenile

        Court Act (705 ILCS 405/5-130 (West 2010)): "Excluded jurisdiction. (1)(a) The definition of a

        delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time

        of an offence was at least 15 years of age and who is charged with *** first degree murder ***.

        These charges and all other charges arising out of the same incident shall be prosecuted under the

        criminal laws of this State."

¶ 121          "Illinois has one of the most extreme 'automatic' prosecutorial transfer mechanisms.

        Most states require an individualized hearing either in juvenile court or a 'reverse waiver' hearing

        in adult court to try a child as an adult. Illinois, however, has no 'safety valve,' no hearing in

        either juvenile or adult court to review whether trial in adult court is appropriate in an individual

        case. Only 14 states use such an extreme process to make this critical decision without any

        safety valves. In Illinois, a child is transformed into an adult through the mere filing of a charge,

        and the child remains stuck in adult court with no legal mechanism to trigger a hearing to

        consider his/her background to determine the appropriateness of adult court jurisdiction."

        Automatic Adult Prosecution, at 9.

¶ 122          While the automatic transfer law has been held constitutional by the Illinois Supreme

        Court in Patterson, People v. J.S., 103 Ill. 2d 395, 405 (1984), and People v. M.A., 124 Ill. 2d

        135, 147 (1988), even with the evolving United States Supreme Court attitudes toward juveniles,

        we are still literally stuck with Patterson, J.S. and M.A. even while admitting that widely

        respected research would and probably should lead to a different result. This was the dilemma in

        People v. Willis, 2013 IL App (1st) 110233, a case in which I participated.               There we

                                                        - 34 -
        No. 1-11-3075

        acknowledged that the law is moving slowly toward revisiting the constitutionality of automatic

        transfer, while also admitting that as long as our supreme court maintains its views we are

        powerless to do otherwise.

¶ 123                                                 Youth

¶ 124          As recently as September 2014, the appellate court, in People v. Sanders, 2014 IL App

        (1st) 121732-U, quoted extensively from Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455

        (2012), and related cases, Graham v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543

        U.S. 551 (2005). Although Sanders is unpublished and not precedential, I am persuaded by its

        discussion of the Roper-Graham-Miller scientific and sociological principles.

¶ 125          Sanders was 17 when he was charged with murder and attempt murder and was sentenced

        to consecutive sentences. He brought several challenges to his sentence, including the second

        successive postconviction petition that is the subject of the appellate court's Rule 23 order. In the

        process of challenging his consecutive sentences, Sanders also challenged the lengthy sentence

        he received – 40 years for the murder and 30 years each for the two attempted murders for a total

        of 100 years – as unacceptable under the eighth amendment.

¶ 126          The appellate court wrote:

                   "In Miller, the United States Supreme Court explained at length the special concerns

               that arise whenever a court sentences a juvenile offender. First, the [Supreme] Court

               interpreted the holdings of Graham and Roper v. Simmons, 543 U.S. 551 (2005):

                               'Roper and Graham establish that children are constitutionally different

                        from adults for purposes of sentencing.       Because juveniles have diminished

                        culpability and greater prospects for reform, we explained, they are less deserving

                        of the most severe punishments.          [Citation.]   Those cases relied on three

                        significant gaps between juveniles and adults. First, children have a lack of

                                                        - 35 -
No. 1-11-3075

                maturity and an underdeveloped sense of responsibility, leading to recklessness,

                impulsivity, and heedless risk-taking. [Citation.] Second, children are more

                vulnerable … to negative influences and outside pressures, including from their

                family and peers; they have limited contro[l] over their own environment and lack

                the ability to extricate themselves from horrific, crime-producing settings.

                [Citation.] And third, a child's character is not as well formed as an adult's; his

                traits are less fixed and his actions less likely to be evidence of irretrievabl[e]

                deprav[ity]. [Citation.]

                       Our decisions rested not only on common sense – on what "any parent

                knows" – but on science and social science as well. [Citation.] In Roper, we

                cited studies showing that [o]nly a relatively small proportion of adolescents who

                engage in illegal activity develop entrenched patterns of problem behavior.

                [Citation.] (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence:

                Developmental Immaturity, Diminished Responsibility, and the Juvenile Death

                Penalty, 58 Am. Psychologist 1009, 1004 (2003)). And in Graham, we noted that

                developments in psychology and brain science continue to show fundamental

                differences between juvenile and adult minds – for example, in parts of the brain

                involved in behavior control. [Citation.] We reasoned that those findings – of

                transient rashness, proclivity for risk, and inability to assess consequences – both

                lessened a child's moral culpability and enhanced the prospect that, as the years

                go by and neurological development occurs, his deficiencies will be reformed.

                [Citation.] Roper and Graham emphasized that the distinctive attributes of youth

                diminish the penological justifications for imposing the harshest sentences on

                juvenile offenders, even when they commit terrible crimes. Because "[t]he heart

                                                - 36 -
        No. 1-11-3075

                        of the retribution rationale" relates to an offender's blameworthiness, the case for

                        retribution is not as strong with a minor as with an adult. [Citations.] Nor can

                        deterrence do the work in this context, because the same characteristics that

                        render juveniles less culpable than adults – their immaturity, recklessness and

                        impetuosity – make them less likely to consider potential punishment. [Citation.]

                        Similarly, incapacitation could not support the life-without-parole sentence in

                        Graham: Deciding that a juvenile offender forever will be a danger to society

                        would require mak[ing] a judgment that [he] is incorrigible – but incorrigibility is

                        inconsistent with youth. [Citation.] And for the same reason, rehabilitation could

                        not justify that sentence.       Life without parole forswears altogether the

                        rehabilitative ideal.   [Citation.] It reflects an irrevocable judgment about [an

                        offender's] value and place in society, at odds with a child's capacity for change.

                        [Citation.] ' " (Internal quotation marks omittted.) Sanders, 2014 IL App (1st)

                        121732-U, ¶ 26 (quoting Miller v. Alabama, 567 U.S. ____, ____, 132 S. Ct.

                        2455, 2464-65 (2012)). 567 U.S. ____, 132 S. Ct. 2455 (2012),

¶ 127          The appellate court continued:

                   "The Miller court then applied its observations to the case on appeal:

                               'Of special pertinence here, we insisted in these rulings that a sentence

                        have the ability to consider the "mitigating qualities of youth."        [Citation.]

                        Everything we said in Roper and Graham about that stage of life also appears in

                        these decisions.    As we observed, youth is more than a chronological fact.

                        [Citation.]   It is a time of immaturity, irresponsibility, impetuousness[,] and

                        recklessness. [Citation.] It is a moment and condition of life when a person may

                        be most susceptible to influence and to psychological damage. [Citation.] And

                                                        - 37 -
        No. 1-11-3075

                        its signature qualities are all transient. [Citation.] Eddings is especially on point.

                        There, a 16-year-old shot a police officer point-blank and killed him.            We

                        invalidated his death sentence because the judge did not consider evidence of his

                        neglectful and violent family background (including his mother's drug abuse and

                        his father's physical abuse) and his emotional disturbance. We found that

                        evidence particularly relevant – more so than it would have been in the case of an

                        adult offender. [Citation.] We held: "[J]ust as the chronological age of a minor

                        is itself a relevant mitigating factor of great weight, so must the background and

                        mental and emotional development of a youthful defendant be duly considered" in

                        assessing his culpability.     [Citation]."   (Internal quotation marks omitted.)

                        Sanders, 2014 IL App (1st) 121732-U, ¶ 27 (quoting Miller, 567 U.S. at ____,

                        132 S. Ct. at 2467).

¶ 128          The appellate court found that the trial court did not consider the special circumstances of

        youth that often make lengthy sentences particularly inappropriate for youthful offenders, and

        found that Sanders showed he had a "reasonable probability" of a shorter sentence "if the trial

        court [had] correctly understood the eighth amendment as it applie[d] to the punishment of

        juvenile offenders." Sanders, 2014 IL App (1st) 121732-U, ¶ 30. The case was remanded for

        resentencing.

¶ 129          The appellate court appears to have put the Roper Graham Miller cases in a special

        compartment where offenders like Richardson cannot use the same logic to show that his

        attorney was ineffective for failing to provide any evidence of his culpability based on his mental

        ability, his family or social history, his youth, or other factors. The Roper Graham Miller cases

        are called sentencing cases, but they are really about culpability. If their analysis depends on

        evidence of youthfulness and its effects, then what can we say about a defense attorney who

                                                        - 38 -
        No. 1-11-3075

        provides NO EVIDENCE WHATSOEVER about a defendant's youthfulness and its effects?

        That evidence was crucial in determining Richardson's culpability.      Surely, leaving it out was

        ineffective assistance of counsel and could not have been strategic.

¶ 130                                          Motion to Suppress

¶ 131          Richardson filed a motion to suppress his video statement as involuntary as a result of

        police coercion. The motion was denied. On direct appeal the issue was raised again along with

        three others, and the appellate court reversed and remanded on that issue. Richardson I, 376 Ill.

        App. 3d 537. The supreme court allowed the State to appeal and reversed the appellate court,

        ruling that the video confession was voluntary and not coerced. The supreme court remanded

        back to the appellate court for consideration of the remaining three issues: (1) that he received

        ineffective assistance of counsel; (2) the trial court erred in refusing to instruct the jury on the

        lesser-included offense of involuntary manslaughter; and (3) he was denied a fair trial when

        autopsy photographs were published to the jury and sent to the jury room during deliberations.

        The appellate court on remand affirmed on all three of those remaining issues, stating that there

        was no evidence in the record to support his claim on the ineffective assistance of counsel and

        the involuntary manslaughter instruction issues.         The appellate court affirmed on the

        photographs, saying they were there to show intent; however, without the evidence of his mental

        ability the intent shown by the photographs becomes another matter of ineffective assistance of

        counsel and the failure of the appellate counsel to frame it that way is another example of the

        ineffective assistance of appellate counsel.

¶ 132          In his direct appeal Richardson argued that he was denied his right to effective assistance

        of counsel where counsel failed to offer expert testimony concerning his mental impairment

        during the motion to suppress hearing. His defense attorney argued the issue of his mental



                                                       - 39 -
        No. 1-11-3075

        ability in the motion to suppress, in the motion to reconsider the denial of the motion to suppress,

        in the motion for a new trial and in the motion to reconsider the denial of a new trial.

¶ 133          However, his defense attorney provided no evidence or testimony about his mental

        capacity in relation to the motion to suppress, or even later in the trial as to the element of intent.

¶ 134          His appellate counsel did not frame any of those issues in terms of ineffective assistance

        of defense counsel.

¶ 135                            Confession, Motion to Suppress, Voluntariness

¶ 136          His first claim on appeal was based on the fact that his attorney, although asking for

        several continuances to obtain an expert evaluation of the defendant, never produced the

        evaluation, or expert testimony at the hearing on the motion to suppress.

¶ 137          His claim is bolstered by the fact that the presentence investigation ordered by the court

        after the trial and before sentencing identified several factors of concern: (1) he had no pending

        cases or warrants; (2) he had an aggravated battery as a juvenile which resulted in "probation

        satisfactorily completed" ; (3) he is the youngest of five children; (4) his brother was shot to

        death; (5) he had no contact with his father; (6) this mother came home every day and hit and

        slapped him, and beat him with extension cords, belts, broom sticks, "anything she could get her

        hands on" if the house wasn't clean; (7) the mother drank a fifth of whiskey a day, and around the

        time Richardson was 12 developed a crack cocaine habit; (8) when Richardson was 12 he sold

        M&M's on the street and rapped on the train to make money for food; (9) he was illiterate when,

        after his arrest, he was transferred to CCDOC at the age of 17; (10) while at CCDOC he had,

        with the help of a special education teacher, achieved a third-grade reading level; (11) he was

        classified learning disabled during his entire time in Chicago public schools; (12) he attended

        five different grade schools; (13) there was the possibility of fetal alcohol syndrome; (14) from

        the age of 13 he had been drinking Jack Daniels and smoking PCP; (15) he had no gang

                                                         - 40 -
        No. 1-11-3075

        affiliation; (16) while in jail (he was arrested at 16, the PSI was done when he was 17) his

        mother moved and he did not know her current address; (17) his report from Forensic Clinical

        Services found him to be fit for sentencing, at age 20, and his psychological evaluation

        indicated that he had, at age 20 in 2005, a "full scale IQ of 61, which falls within the extremely

        low range of intellectual functioning and ranks him at the 0.5th percentile, when compared to his

        same aged peers (meaning that 99.5% of these individuals would likely do better on this

        test…Overall, Mr. Richardson appears to fall in the upper echelon of Mild Mental Retardation at

        this time. It should be noted that Mental Retardation is not necessarily a permanent condition

        and that with additional education and/or further life experience it is likely that he would shift

        into the Borderline range of intellectual functioning." (Dr. Neu report, May 12, 2005)

¶ 138          The appellate court declined to speculate about what a report on his mental ability at the

        time of his arrest at age 16, or even between 16 and 17, when his defense counsel was asking for

        continuances to get an evaluation, would prove.

¶ 139          In one hearing defense counsel told the court that the person who went to the jail to do

        the evaluation was denied access to Richardson, but counsel did not provide further information.

        However, by the time the trial was actually held, in 2005, the defendant was 20 years old. It is

        simply inconceivable that his mental ability was better at age 16 to 17 than it was at 20, so it

        does not take speculation, it takes common sense, to understand the disastrous effect of the

        defense counsel's failure to provide the information soon after defendant was arrested, not only

        to lay the foundation for the motion to suppress, but also to challenge the element of intent in the

        murder charge, to support the involuntary instruction, and for sentencing.

¶ 140          Both the appellate court and the supreme court focused on the motion to suppress because

        that is the only argument his appellate attorney made regarding his mental capacity.



                                                       - 41 -
        No. 1-11-3075

¶ 141           This was particularly important information for the court to have when it ruled on the

        motion to suppress, and the importance of the missing information does not end there. Defense

        counsel did not present it, either through an expert witness or from occurrence witnesses in

        Richardson's life, his mother, friends, teachers, or principals. The necessary evidence was never

        presented at all.

¶ 142                                      Waiver of Rights by Minors

¶ 143           The fact that courts continue to hold that any child is capable of knowingly and

        voluntarily waiving his or her right to be silent or waiving his right to have an attorney is the flip

        side of the Roper Graham Miller analysis and begs for robust argument.

¶ 144           No child in Illinois under the age18 can vote, join the military, get a passport on his

        own, marry, buy liquor or lottery tickets yet we continue to hold that children can voluntarily

        waive their most fundamental constitutional rights when in the custody of police, certainly a

        frightening and daunting experience. Ask any parent of a child under the age of 18 if his or her

        child could fully and completely understand the nuances of the Miranda warnings and the effect

        of waiving them and it is hard to see any thoughtful parent saying: "Sure!" no matter how

        precocious the child is. Better yet, ask yourself if your own 18 or under child could fully

        appreciate all the ramifications of that waiver, something so slippery that a child could agree

        without even taking time to reflect on the words themselves or their effect: Would you want

        your own child to be irretrievably bound by his or her waiver of the most basic and fundamental

        rights guaranteed by our Constitution?

¶ 145                                             Youth Officer

¶ 146           We take artificial comfort in the fact that children cannot be interviewed without a youth

        officer or interested adult. But we fail to question what the youth officer's job and loyalty really

        are. Could the youth officer tell the child, for example: "Look, don't say anything until you get a

                                                        - 42 -
        No. 1-11-3075

        lawyer"? Youth officer Nolan testified that he was assigned to investigate the child abuse to

        Diamond and that he met with the detectives at the scene and went to the hospital to check on the

        child's condition. He testified that youth officers are responsible for processing juvenile arrests,

        investigating child abuse and offenses against children and looking for missing persons. He

        testified that part of his job was to ensure that a juvenile suspect was treated properly while in

        custody.

¶ 147          But youth officer Nolan left this juvenile defendant, who was still not being charged as an

        adult, alone from 3:30 p.m. to about 7:30 or 8 p.m. at the police station where he was punched by

        police personnel. Further, youth officer Nolan did not talk to the desk sergeant or the watch

        commander about the injury to the juvenile suspect, nor did he do anything to seek medical

        attention for the juvenile. We cannot say with any confidence that youth officer Nolan was

        protecting the rights of this juvenile suspect. In fact, it appears clear from his assignment that he

        was there to investigate what happened to Diamond, which is a troubling conflict of interest to

        his role regarding Richardson.

¶ 148          When asked if he was present to safeguard Richardson's rights during questioning while

        Richardson's mother was also present, Nolan answered that he was there because it was part of

        the child abuse investigation.

¶ 149          Somehow we buy into the idea that the youth officer is there to protect the juvenile's

        rights? How exactly was that done in this case where Nolan left Richardson alone in custody

        where he was punched and then Nolan did nothing about the injury? How exactly was this done

        when Nolan clearly believed his primary responsibility was to investigate what happened to

        Diamond, not to protect Richardson? When you get right down to it, if the youth officer is there

        to safeguard the juvenile's rights, why in the world would any juvenile ever answer questions

        without an attorney? What exactly are those safeguards?

                                                        - 43 -
        No. 1-11-3075

¶ 150          In this case in particular, youth officer Nolan testified that he was simultaneously

        investigating first the child abuse and then the death of Diamond, while also sitting in with

        Richardson during the questioning.

¶ 151          Neither the defense counsel nor appellate counsel argued that the youth officer's failure to

        protect Richardson from physical harm, and that leaving him alone in the police station, helped

        create an atmosphere of coercion that led to Richardson's statements or that youth officer Nolan

        had an impermissible conflict of interest in this matter.

¶ 152                                    Interested and Competent Adult

¶ 153          Then we look at the interested adult. Someone in this case should have questioned

        whether the parent with Richardson was actually an interested and competent adult, and capable

        of protecting his rights. We want to believe that parents will do that and are capable of it, yet we

        know from experience that not all parents are equal. Some are drug addicts, some are alcoholics,

        some have criminal cases of their own they need to protect, some are just dopey, some have

        already given up on their own child, more likely from poor parenting than because the child is

        incorrigible. Who are these interested adults? Why do we persist in believing that a parent, any

        parent, is good enough?

¶ 154          In Richardson's case his mother was there and wanted to leave. We know from the pre-

        sentence report that she was a crack cocaine addict and alcoholic. What we see in the video as a

        submissive mother may just as well have been a mother who was coming down from her own

        high and was physically and mentally ineffective when it came to her son.

¶ 155          Further, this is the same mother who pushed him out to live with her boyfriend's sister to

        babysit that woman's three children. We do not know why Richardson was not living with his

        mother. Maybe he was better off, since she beat him regularly, but he was still legally a child of

        16, with no loving mother and no connection at all to his father.

                                                        - 44 -
        No. 1-11-3075

¶ 156          "In situations where an adult other than a member of the police or prosecution was

        present at the custodial interrogation of a juvenile, challenges by the juvenile to the admission of

        evidence based on the incompetency of the adult can be roughly grouped into three categories:

        (1) challenges based on an insufficiently close bond between the adult and the juvenile (a lack of

        interest); (2) challenges based on the adult's failure to understand the situation; and (3)

        challenges based on a conflict of interest between the juvenile and the adult." Andy Clark,

        "Interested Adults" with Conflicts of Interest at Juvenile Interrogations: Applying the Close

        Relationship Standard of Emotional Distress, 68 U. Chi. L. Rev. 903, 914 (2001).

¶ 157          In Richardson's case one could argue that his mother was not sufficiently interested, was

        not able to fully understand the gravity of the situation (since no one told either Richardson or

        his mother that the charge would be murder) and possibly had a conflict of interest since she was

        the victim's grandmother.

¶ 158                                         Rule 402 Conference

¶ 159          Defense Counsel asked for a Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 2012)) conference

        and the judge gave Richardson his Rule 402 admonishments:

                   "THE COURT: Mr. Richardson, your attorney has asked for a 402 conference. That

               means I am going to sit down with your lawyer and the lawyer from the state's attorney's

               office, go over your background, as well as the facts of this case. Do you understand?

                   RICHARDSON: Yes.

                   THE COURT: If you don't like the results of the conference I am still going to be the

               judge that hears your bench trial, should you have a bench trial, do you understand?

                   RICHARDSON: No.

                   THE COURT: Knowing that, do you still want me to have the conference.



                                                       - 45 -
        No. 1-11-3075

                   RICHARDSON: Yes."

¶ 160          Once Richardson said "No" the trial judge had a duty to explain in understandable terms

        that she would still be the judge who heard the whole trial. She did not.

¶ 161          Defense counsel did not object or raise this as an issue in the motion for a mistrial or

        motion for a new trial. Appellate counsel did not raise this as an issue of substance related to the

        judge's behavior or as an issue of ineffective assistance of defense counsel.

¶ 162                               Office of Professional Standards Report

¶ 163          The OPS report on Richardson's injuries was presented to the court and to the defense

        and State, and the State suggested that some stipulations might be entered regarding the report,

        but defense counsel did not introduce the report into evidence in the motion to suppress, nor did

        any stipulations result from that report. The court did review the OPS report in camera, but

        since it was not introduced as evidence and it is not part of the record we have no idea what, if

        any, impact the information in that report could have had on this trial.

¶ 164          The State of Illinois has taken some steps to solve part of this problem. By passing

        section 103-2.1(f) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-2.1(f) (West

        2010)), Illinois has required that all custodial interviews in murder cases must be recorded. This

        of course does not help Richardson since he was arrested for child abuse, upgraded to murder, in

        2001, but this change is clearly going to make custodial interviews in murder cases transparent.

        "The only fair reading of the statute is that the legislature's clear intent was to ensure that

        statements related to murder investigations were not the result of coercive pressures of custodial

        interrogation in a police facility but, rather, were both voluntary and reliable." People v. Harris,

        2012 IL App (1st) 100678, ¶ 51, quoted in People v. Dominique Clayton, 2014 IL App (1st)

        130743, ¶ 51.



                                                        - 46 -
        No. 1-11-3075

¶ 165          Perhaps we will see the day when all juvenile interrogations will be made with an

        appointed attorney and be recorded as well. That would prevent any question of abuse, coercion

        or voluntariness of juvenile confessions. As Justice McMorrow said in her dissent in G.O.:

        "Individuals of greater age and experience could find these same circumstances overwhelming

        and coercive. To a boy of G.O.'s youth and presumed naivete, these circumstances could be

        sufficiently overpowering as to raise a genuine doubt whether any confession made in this

        atmosphere would be the product of a free will."          In re G.O., 191 Ill. 2d 37, 64 (2000)

        (McMorrow, J., dissenting).

¶ 166                                 Involuntary Manslaughter Instruction

¶ 167          Both the appellate and supreme courts focused on the motion to suppress because that is

        the only argument his appellate attorney made regarding his mental capacity.

¶ 168          But the missing evidence was particularly important information for the court to have

        when, for example, it was ruling on the defense requested instruction on involuntary

        manslaughter. Defense counsel argued that Richardson admitted the acts he took against his

        daughter, but that if he testified he did not know he was doing great bodily harm, and that it was

        up to the jury to "decide if he intentionally caused her death or great bodily harm or whether the

        death was caused unintentionally by acts which were performed recklessly *** the medical

        examiner testified to a significant number of injuries. Those were the result of his action *** not

        the intent of his actions and the intent of his actions needs to be decided by the jury."

¶ 169          The trial court responded: "The Court is aware of the current case law which is meant to

        include lesser-included instructions when there is any evidence at all to support those lesser-

        included instructions. In this case the court finds that there is no evidence whatsoever for the

        jury to consider regarding recklessness ***. There is no evidence to support recklessness ***."



                                                        - 47 -
        No. 1-11-3075

¶ 170          No evidence. No psychological evaluation, no testimony from Richardson about his

        mental health, no testimony from his mother, teachers, principal, friends. No evidence.

¶ 171          Once again the missing evaluation, expert testimony or occurrence testimony from

        family, teachers, principals and friends had a disastrous effect on Richardson's case. Defense

        counsel gave the judge nothing on which she could have remotely considered the requested

        involuntary instruction, a point which was highlighted in Richardson III, when the appellate

        court once again pointed to the fact that there was "no evidence" of recklessness to support the

        involuntary instruction. There was no evidence because counsel did not provide any. Counsel

        had a duty to provide the best possible defense, and this omission is not only ineffective

        assistance of trial counsel but is also ineffective assistance of appellate counsel who did not raise

        the missing evidence in relation to the element of intent for murder or the denied involuntary

        instruction.

¶ 172          "[A]n instruction is justified on a lesser offense where there is some evidence to support

        the giving of the instruction. People v. Jones, 175 Ill. 2d 126, 132 (1997). If there is some

        credible evidence in the record that would reduce the crime of first degree murder to involuntary

        manslaughter, an instruction should be given. People v. Foster, 119 Ill. 2d 69, 87 (1987); People

        v. Ward, 101 Ill. 2d 443, 451 (1984). Where some evidence supports the instruction, the circuit

        court's failure to give the instruction constitutes an abuse of discretion. Jones, 175 Ill. 2d at 132.

        The basic difference between involuntary manslaughter and first degree murder is the mental

        state that accompanies the conduct resulting in the victim's death. Foster, 119 Ill. 2d at 87.

        Involuntary manslaughter requires a less culpable mental state than first degree murder. *** [A]

        defendant commits involuntary manslaughter when he performs acts that are likely to cause

        death or great bodily harm to another and he performs these acts recklessly. 720 ILCS 5/9-3(a)

        (West 1994)." (Emphases added.) People v. DiVincenzo, 183 Ill. 2d 239, 249-50 (1998). In

                                                        - 48 -
        No. 1-11-3075

        DiVincenzo the supreme court found that the involuntary manslaughter instruction should have

        been given in part because "[s]ome of this evidence could have suggested to the jury that

        defendant acted recklessly but without knowledge of a strong probability of death or great bodily

        harm. *** Determination of defendant's mental state may be inferred from the circumstantial

        evidence [citation], and this task is particularly suited to the jury."        (Emphasis added.)

        DiVincenzo, 183 Ill. 2d at 251-52.

¶ 173          The instruction on involuntary manslaughter was critical to Richardson's defense case,

        yet the defense counsel did not do the single most important thing she could have to get that

        instruction before the jury: she did not provide any evidence to give context to his action. She

        was ineffective in the extreme.

¶ 174                                                 Intent

¶ 175          The defense in closing argued that the defense was not contesting the significant number

        of injuries to Diamond, was not contesting the fact of the injuries, was not contesting the result,

        but was contesting the intent of his actions. Defense counsel, absent any evidence of

        Richardson's mental capacity when he was 16, relied, instead, on the fact that he was a teenager,

        left to fend for himself in the home of his mother's boyfriend's sister, to take care of her three

        children. Defense counsel argued, with no evidence having been presented, that minors do not

        have the mental or emotional capacity to be treated like an adult.

¶ 176          Defense counsel made a motion for mistrial based on the denial of the instruction on

        involuntary manslaughter.

¶ 177          The trial court denied the motion saying: "[T]he Court is well aware that if there is any,

        and I will emphasize any credible evidence to support a reckless act I would have given the

        involuntary instruction. *** [T]here is no evidence of recklessness. *** There is not one scintilla

        of evidence that the Defendant did anything but beat this child over a period of time ***. Your

                                                       - 49 -
        No. 1-11-3075

        motion for a mistrial is denied. And again I would feel more comfortable giving them a

        possession of a stolen motor vehicle instruction because there's equal amount of evidence to

        support that as there is reckless conduct here." (Emphases added.)

¶ 178          The appellate court stated: "There is not a scintilla of evidence to support a finding that

        defendant acted recklessly rather than knowingly and intentionally."           (Emphasis added.)

        Richardson III, 401 Ill. App. 3d at 51.

¶ 179          The supreme court found: "[A]t the suppression hearing, defendant presented no evidence

        or argument of any mental deficiency that would render his inculpatory statement involuntary,

        and the circuit court made no findings related thereto."         (Emphasis added.)     People v.

        Richardson, 234 Ill. 2d 233, 263 (2009).

¶ 180          No evidence. No evidence. No evidence. The counsel for defense presented no evidence

        of recklessness. How much more clear must it be that counsel for defense was ineffective?

¶ 181                                              Jury Question

¶ 182          Yet, even with no evidence her argument must have meant something to the jury, because

        they sent out a note asking: "Does the Jury have an option of finding him guilty of a lesser

        charge? What would be the minimum punishment?"

¶ 183          The trial court answered: "You have the law that applies to this case. You are not to

        consider possible punishment in the case. It is the function of the trial court to sentence the

        defendant should you return a verdict of guilty. Please continue your deliberation."

¶ 184          Without an instruction on involuntary manslaughter, the jury was faced with no option.

        The defendant admitted inflicting the injuries to Diamond. He said he did not intend to murder

        her. Defense counsel presented no evidence to establish his lack of intent. The jury found him

        guilty of murder.



                                                        - 50 -
        No. 1-11-3075

¶ 185          In Patterson, 2014 IL 115102, the supreme court held that the defendant had not shown

        ineffective assistance of counsel where his defense attorney did not present sufficient evidence of

        his mental functioning in relation to the voluntariness of his confession. The court found that

        even without the confession the overwhelming evidence supported his conviction. "Given the

        overwhelming evidence corroborating the victim's testimony and weighting against the

        defendant's account, we are not persuaded that it is reasonably probable that a jury would have

        acquitted defendant even in the absence of any reference to his confession at trial.           The

        reasonably probable impact of counsel's alleged error is not sufficient to undermine our

        confidence in the outcome of the trial. Therefore, defendant has failed to establish the prejudice

        prong of the Strickland test ***." Patterson, 2014 IL 115102, ¶ 87.

¶ 186          In Richardson's case every judge who has heard evidence or looked at the case has said

        that the missing evidence would have been important to their decision. The jury asked about a

        lesser-included offense. There is more than sufficient reason to believe that the defense failure to

        provide evidence on this matter did undermine confidence in this trial.

¶ 187                              Ineffective Assistance of Defense Counsel

¶ 188          To say that Richardson received ineffective assistance of trial counsel and ineffective

        assistance of appellate counsel is a serious undercount of the things that went wrong in this case.

¶ 189          In the motion to suppress, defense counsel did not specify what, if any, City of Chicago

        police department rules, regulations or procedures were involved in the arrest, lock-up process,

        detention, custody or questioning of Richardson, who, for the first nine hours after his arrest was

        not being held as a juvenile charged as an adult, but was in fact being held as a juvenile arrested

        for child abuse.

¶ 190                                          Juvenile in Custody



                                                       - 51 -
        No. 1-11-3075

¶ 191          Defense counsel did not question anyone about the time Richardson's mother was at the

        police station but did not speak alone with her son before he was questioned.

¶ 192          Defense counsel did not question anyone about the fact that between his arrest at 3:30

        p.m. and the time the victim died and a the charge of murder was added to the arrest report,

        Richardson was technically and in reality a juvenile himself arrested for child abuse and was

        entitled to whatever procedures, rules and regulations were in place in the Chicago police

        department in February 2001 for the arrest and detention of a juvenile.

¶ 193          Defense counsel did not question anyone about what those procedures, rules and

        regulations actually were in February 2001.

¶ 194                                           Lockup Keeper

¶ 195          Defense counsel did not question the lockup keeper, Davis, star No. 302689, about what

        happened to Richardson in the lockup that resulted in his swollen eye.

¶ 196          Defense counsel did not question the lockup keeper, Davis, to determine why he signed

        the lockup report and his "visual check" of Richardson at 4 p.m. and that question No. 1: "[D]oes

        arrestee have obvious pain or injury?" Davis answered "no." It is uncontroverted that the injury

        to Richardson's eye occurred in the lockup. The timing of the lockup report ("Moving of Arrestee

        Out of & Into Arrest/Detention Facility") at 4 p.m. raises several other questions, the very least

        of which is why, if Richardson was injured in the lockup, the visual report does not indicate the

        injury, or why Richardson, who was still just an arrested juvenile at 4 p.m., and not a juvenile

        being charged as an adult, was not given medical attention and was not made available to the

        OPS investigators who were called in after his injury.

¶ 197          Defense counsel took it as gospel that the investigation into the injuries to Diamond took

        precedence to the OPS investigation into Richardson's injuries at the hands of police personnel

        and did not call on anyone from OPS or in management of the police department to verify that,

                                                      - 52 -
        No. 1-11-3075

        in fact, it was department policy that made it impossible for OPS to talk to Richardson while he

        was waiting, from 4 p.m. until the detectives started questioning him about the injuries to

        Diamond at 9:08 p.m. and was still only a juvenile under arrest for child abuse.

¶ 198                                          Miranda Warnings

¶ 199          Defense counsel did not question anyone about the fact that Richardson, still a juvenile

        under arrest for child abuse, was questioned at 9:08 p.m. and was, according to police testimony

        given his Miranda rights by youth officer Nolan; however no signed waiver of those rights, by

        either or both Richardson and/or his mother is in the record.

¶ 200          Defense counsel did not question anyone about the fact that Richardson did not have an

        opportunity to talk to his mother alone before the 9:08 p.m. questioning.

¶ 201          Defense counsel did not question anyone about the fact that although ASA Heil testified

        that he gave Richardson his Miranda rights at 10 p.m. there is no signed waiver of those rights in

        the record.

¶ 202          Defense counsel did not question anyone about the fact that although ASA Heil testified

        that he gave Richardson his Miranda rights again at 12:28 a.m. on February 10, 2001, there is no

        signed waiver of those rights in the record.

¶ 203          Defense counsel did not question anyone about the fact that while ASA Heil did tell

        Richardson that he could be tried as an adult, after Diamond died neither Heil nor anyone else

        told the defendant that he would be charged with murder, leaving the defendant to mistakenly

        believe that he was still being charged with child abuse. A review of the arrest report makes it

        clear that the charge of murder was added at a different time than the original arrest, which

        makes sense since the child did not die until much after Richardson was arrested at 3:30 p.m. on

        February 9, 2001.



                                                       - 53 -
        No. 1-11-3075

¶ 204          Defense counsel did not question anyone about the fact that the youth officer was

        wearing two hats: he was, according to his own testimony, investigating the abuse and

        subsequent death of Diamond and also appeared to be acting as the youth officer to protect the

        rights of Richardson, an apparent and disturbing conflict of interest.

¶ 205          Defense counsel did not question Richardson or Richardson's mother about her own

        physical and mental ability at the time he was being questioned, although Richardson clearly

        knew and could have told Defense counsel that his mother was a cocaine addict and drank a fifth

        of whiskey a day, which should have raised serious concerns about her own competence as an

        interested adult during his questioning.

¶ 206          Defense counsel did not question Richardson or Richardson's mother about her sympathy

        for the child victim, Diamond. She was, after all, the child's grandmother, and as such may have

        had a conflict of interest between her grandchild and her own son, the son she had pushed out to

        fend for himself at the apartment of her boyfriend's sister.

¶ 207          Defense counsel did not question Richardson's mother about his mental ability, his school

        progress, or his special education or the five different schools he attended.

¶ 208          Defense counsel did not question Richardson's mother about what discipline she used on

        Richardson, or her alcohol or drug use during her pregnancy and his childhood.

¶ 209          Defense counsel did not question any of Richardson's teachers, counselors, school

        principals about his mental ability, his school progress, or his special education.

¶ 210          Defense counsel did not question any family or friends about his mental ability, his

        school progress, or his special education.

¶ 211          Defense counsel did not question Richardson himself about his mental ability, his school

        progress or his special education or his mother's discipline techniques.



                                                        - 54 -
        No. 1-11-3075

¶ 212             Defense counsel did not, after four full years to prepare for trial, provide any medical or

        psychological evaluation of Richardson. This fact has been dealt with by the appellate court and

        by the supreme court, but only in the context of the motion to suppress.

¶ 213             Defense counsel's failure to provide any evidence of Richardson's mental ability, his

        school progress or his special education had a fundamental and drastic negative impact, not only

        on the motion to suppress, but later when confronting the State on the issue of his intent to

        commit murder, and as has been shown above in the instruction for involuntary manslaughter

        issues.

¶ 214                               Ineffective Assistance of Appellate Counsel

¶ 215             Appellate counsel failed to raise the issue of the defense counsel's failure to provide

        evidence of Richardson's mental ability, his school progress or his special education as regards

        the issue of intent to commit murder, an element of the offense and something that the State was

        required to prove beyond a reasonable doubt. This missing evidence was critical when the trial

        court said, in reference to the defense request for an instruction on involuntary manslaughter:

        "there is not a scintilla of evidence [to support the instruction]."

¶ 216             This missing evidence was critical in the appellate court. And, this missing evidence was

        critical in the supreme court.

¶ 217                                               Res Judicata

¶ 218             The missing evidence created a gaping three-dimensional hole in the defense case which

        was never repaired. The defense did not provide the evidence at the motion to suppress; it did not

        provide the evidence anywhere as part of the defense. The appellate counsel did not raise the

        issue of the missing evidence as part of the overall defense or on the issue of the denied

        instruction or the State's burden to prove intent beyond a reasonable doubt. So while the missing

        evaluation would be res judicata for defense counsel in terms of the motion to suppress because

                                                         - 55 -
        No. 1-11-3075

        it was raised on direct appeal, and for appellate counsel because it was raised on appeal and in

        terms of intent because it could have been raised on appeal, it cannot be res judicata for a

        postconviction petition in terms of ineffective assistance of appellate counsel. The issue of the

        missing evaluation is still very much alive for the purpose of a postconviction petition, a point

        my colleagues have missed.

¶ 219          In this appeal, the court's dismissal of the first stage pro se postconviction petition as

        frivolous and without merit was based on the fact that Richardson argued again the failure of his

        defense counsel to provide the evidence to support the motion to suppress. Richardson, acting

        pro se, could never be expected to articulate the impact of the failures in the overall defense case,

        the denied instruction or any other failure of the defense or appellate counsel.

¶ 220          The purpose of a postconviction proceeding is to permit inquiry into constitutional issues

        involved in the original conviction and sentence that were not, nor could have been adjudicated

        previously upon direct appeal. People v. Peeples, 205 Ill. 2d 480, 510-11 (2002) (citing People

        v. Haynes, 192 Ill. 2d 437, 464 (2000)). Because a proceeding brought under the Act is a

        collateral attack on defendant's conviction and/or sentence, the doctrine of res judicata bars

        consideration of issues that were raised and decided on direct appeal. Peeples, 205 Ill. 2d at 510

        (citing People v. Towns, 182 Ill. 2d 491, 502 (1998)). Further issues that could have been

        presented on direct appeal but were not, are waived for purposes of postconviction review.

        Peeples, 205 Ill. 2d at 510; Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503.

¶ 221          However, the doctrines of res judicata and waiver will be relaxed in three situations:

        where fundamental fairness so requires; where the alleged waiver is attributable to the

        incompetence of appellate counsel; or where the facts relating to the postconviction claim do not

        appear on the face of the original record. Peeples, 205 Ill. 2d at 510-11 (citing People v.

        Mahaffey, 194 Ill. 2d 154, 171 (2000)).

                                                        - 56 -
        No. 1-11-3075

¶ 222          An evidentiary hearing is warranted on a postconviction claim only where the allegations

        in the postconviction petition, supported where appropriate by the trial record or accompanying

        affidavits, make a substantial showing that the constitutional rights of the defendant have been

        violated. Peeples, 205 Ill. 2d at 510-11; Haynes, 192 Ill. 2d at 465.

¶ 223          The doctrines of res judicata and forfeiture are relaxed in a proceeding on a petition for

        postconviction relief where fundamental fairness so requires, where the forfeiture stems from the

        ineffective assistance of appellate counsel, or where the facts relating to the issue do not appear

        on the fact of the original appellate record. People v. English, 2013 IL 112890, ¶ 22 (citing

        People v. Williams, 209 Ill. 2d 227, 233 (2004)).

¶ 224          "[W]hen a petitioner's claims are based upon matters outside the record, this court has

        emphasized that 'it is not the intent of the [A]ct that [such] claims be adjudicated on the

        pleadings.' People v. Airmers, 34 Ill. 2d 222, 226 (1966). See also People v. Clements, 38 Ill. 2d

        213, 216 (1967) (same). Rather, the function of the pleadings in a proceeding under the Act 'is to

        determine whether the petitioner is entitled to a hearing.' Airmers, 34 Ill. 2d at 226. Therefore,

        the dismissal of a post-conviction petition is warranted only when the petition's allegations of

        fact – liberally construed in favor of the petition and in light of the original trial record–fail to

        make a substantial showing of imprisonment in violation of the state or federal constitution."

        People v. Coleman, 183 Ill. 2d 366, 382 (1998). "After reviewing the entire transcript of the

        original trial, we are unable to conclude that there exists no reasonable likelihood that [the

        missing evidence] would not have affected the jury's deliberative process and judgment."

        Coleman, 183 Ill. 2d at 396.

¶ 225          "A ruling on an initial postconviction petition has res judicata effect with respect to all

        claims that were raised or could have been raised in the petition. [Citation.] Section 122-3 of the

        Act provides that any claim of a substantial denial of a constitutional right not raised in a

                                                        - 57 -
        No. 1-11-3075

        defendant's original postconviction petition is waived. [Citation.] 'There is less interest in

        providing a forum for the vindication of a defendant's constitutional rights in a successive

        proceeding because the defendant has already been afforded an opportunity to raise such

        allegations in his first petition.' " People v. Thompson, 383 Ill. App. 3d 924, 931 (2008) (quoting

        McDonald, 364 Ill. App. 3d at 393).

¶ 226          In fact, in People v. Wilson, this court held: "Accordingly, an exception to barring a claim

        based on res judicata in a first-stage postconviction proceeding applies 'where [the] facts relating

        to the claim do not appear on the face of the original appellate record.' " Wilson, 2013 IL App

        (1st) 112303, ¶ 16 (quoting People v. Blair, 215 Ill. 2d 427, 450-51 (2005), and citing People v.

        Harris, 206 Ill. 2d 1, 13 (2002), and quoting People v. Mahaffey, 194 Ill. 2d 154, 171 (2000)).

¶ 227          Since our colleagues on the appellate court in Richardson III have already found that the

        matter of the missing evidence is outside the record, it would seem that the majority is being

        inconsistent in this regard.

¶ 228          This case is similar to People v. Tate, 2012 IL 112214, in which the defendant's

        postconviction petition alleged his defense counsel was ineffective for failing to call four

        witnesses -- two alibi and two occurrence witnesses. The State argued that his claims were

        forfeited because he did not include them in his posttrial motion. The court held that "Tate's

        ineffective-assistance claims thus are based on what trial counsel should have done, not on what

        counsel did. An ineffective assistance claim based on what the record discloses counsel did, in

        fact, do is subject to the usual procedural default rule. People v. Erickson, 161 Ill. 2d 82, 88

        (1994). 'But a claim based on what ought to have been done may depend on proof of matters

        which could not have been included in the record precisely because of the allegedly deficient

        representation.' Id. Thus, this court has 'repeatedly noted that a default may not preclude an

        ineffective-assistance claim for what trial counsel allegedly out to have done in presenting a

                                                       - 58 -
        No. 1-11-3075

        defense.' People v. West, 187 Ill. 2d 418, 427 (1999)." Tate, 2012 IL 112214, ¶ 14. Here we

        consider what Richardson's trial counsel ought to have done, and not default, forfeiture or res

        judicata can apply where Richardson could not have argued that at trial or in his motion for a

        new trial. Nor could his appellate counsel have argued it because it was outside the record.

¶ 229          Justice Murphy had the same view in People v. Godard, 2012 IL App (1st) 103355-U,

        and his logic is persuasive. He held that the circuit court erred when it dismissed defendant's pro

        se postconviction petition at the first stage of proceedings on the basis of waiver and res judicata

        where defendant's claims are based on facts that were not part of the record on direct appeal.

        There the defendant alleged ineffective assistance of counsel for failing to file a motion to

        suppress a confession. The circuit court dismissed the claim on the basis of res judicata and

        waiver. Justice Murphy held: "an exception to this rule [res judicata and waiver require

        summary dismissal] exists where 'facts relating to the claim do not appear on the face of the

        original appellate record' because although some claims may potentially be presented on appeal,

        the reviewing court may be incapable of considering those claims under the rules governing

        appellate review. Id. at 372. Thus, where a claim's evidentiary basis is de hors the record,

        waiver and res judicata do not apply, irrespective of whether the claims could have been raised

        by a party on direct appeal and regardless of 'whether their supporting facts are available as a

        practical matter at the time of the direct appeal.' [Coleman, 183 Ill. 2d at 372]." Id. at ¶ 11.

        Justice Murphy went on to say that while failure to file a motion to suppress may be seen as a

        matter of trial strategy, where such a motion is the defendant's strongest or only viable defense,

        counsel's failure to file the motion "may constitute ineffective assistance [of counsel]" "because

        it would have deprived the State of its primary and strongest piece of evidence and the failure to

        bring such a motion cannot be considered sound or valid trial strategy." Godard, 2012 IL App

        (1st) 103355-U, ¶ 18. Richardson is saying if his defense counsel had presented evidence of his

                                                       - 59 -
        No. 1-11-3075

        mental ability it would have brought into question the voluntariness of his confession and

        rebutted the state's case of intentional murder. He claims that this failure by his defense counsel

        could not possibly have been sound trial strategy, since, after the trial, his evaluation presented

        compelling information about his mental ability four years after his arrest, and logically he could

        not have been more mentally able at the age of 16 than at the age of 20 making it at least

        arguable that his defense counsel was ineffective and that it is reasonably probable that the result

        of his jury trial would have been different. His petition is not frivolous or without merit because

        it has an arguable basis in both law and fact.

¶ 230                                            Judge's Behavior

¶ 231          Neither the defense counsel nor appellate counsel claimed the judge was so extremely

        sarcastic that it had a chilling effect on the defense attorney, and her sarcasm could be interpreted

        as bias against this defendant as can be shown in her response to defense counsel's motion to

        suppress:

                    "DEFENSE COUNSEL: May I argue?

                    THE COURT: You can certainly argue, if you could do it with a straight face. I'd

               appreciate it if you didn't laugh during your argument. Go on. And I will try not to

               laugh during my findings." (Emphasis added.)

¶ 232          These remarks were made in open court in the presence of the defendant. We do not

        know how the defense attorney or her client reacted to the remarks of the judge at this point in

        the case, but remarks like this could hardly have been a signal that the judge had no opinion.

¶ 233          And again the trial judge was sarcastic in the jury instructions as seen above in her

        remark about stolen motor vehicle instructions.




                                                         - 60 -
        No. 1-11-3075

¶ 234          "Illinois courts have long upheld the right of an accused to a fair and impartial trial by

        jury, 'free from influence or intimation by the trial court.' " People v. Mitchell, 228 Ill. App. 3d

        167, 169 (1992) (quoting People v. Sprinkle, 27 Ill. 2d 398, 402 (1963), and citing People v.

        Santucci, 24 Ill. 2d 93 (1962)). In Mitchell the judge mocked the defense counsel in front of the

        jury stating: " 'Well, you can ask questions like that until midnight, they didn't go to the garage,

        they didn't go to the park, they didn't go to the moon, they just went to the station and that's it.' "

        Mitchell, 228 Ill. App. 3d at 170. The appellate court found that the "mockery of the defense

        greatly undermined counsel's theory *** and could not help but communicate to the jury what

        the judge was thinking. The judge's attack on defense counsel *** coupled with the judge's

        hostile attitude, *** denied Mitchell the fair trial to which he is entitled." Mitchell, 228 Ill. App.

        3d at 170-71. In Richardson the judge was most hostile to the defense out of the presence of the

        jury, but the chilling effect was just as unacceptable.

¶ 235          In Richardson's motion to suppress hearing, outside the presence of the jury, the court

        was clearly sarcastic and showed a very certain mind-set of the judge that the defendant's

        confession was voluntary. In People v. Ojeda, 110 Ill. App. 2d 480, 485 (1969), faced with a

        judge's remarks about the veracity of a witness, the appellate court held: "Of more concern,

        however, is the possibility that the improper comments, coming when they did, reflected a

        preconceived attitude on the part of the trial judge regarding the defendant's guilt. Since it is

        fundamental that a Magistrate resolve disputed questions of fact only after hearing all of the

        evidence with an open mind, we must reverse and remand this cause for a new trial." In Ojeda

        the court's comments came during the actual trial, unlike here, where the court's comments came

        directly after the defense presented its testimony in the motion to suppress. But the comments

        themselves demonstrate not only the court's own mind-set, they also demonstrate how glaring the

        failure of the defense to call any witnesses or present any evidence as to Richardson's mental

                                                         - 61 -
        No. 1-11-3075

        ability was, not only for the motion to suppress, but later, in the trial toward the issue of intent,

        and finally, in dealing with the question of the involuntary instruction. This judge believed

        Richardson was guilty of murder and no evidence to provide insight into involuntariness of the

        confession or recklessness in his actions toward Diamond was provided. At the motion to

        suppress the judge was rude and sarcastic beyond any acceptable range, and even though she was

        correct that there was no evidence presented, her choice of words and manner had a continued

        effect on defense throughout this trial.

¶ 236          And, we cannot overlook the fact that this judge even before the trial announced to the

        entire group of prospective jurors that while the case was important it would not take up much of

        their time. It can be argued that the judge was telling the jury that the whole trial was merely a

        pro forma exercise, which may have been interpreted by some or all of the jurors to believe that

        the judge thought the defendant was guilty and they should be able to come to that conclusion

        quickly. This hypothesis is bolstered by the judge's answer to the note sent out by the jurors after

        they began their deliberations.

¶ 237          Their note said: "Does the jury have an option of finding him guilty of a lesser charge

        but what would the minimum punishment be?" The court wrote back: "You have the law that

        applies to this case. You are not to consider possible punishment in this case. It is the function

        of the trial court to sentence the defendant should you return a verdict of guilty. Please continue

        your deliberations." Defense counsel argued during the discussion of that response that it

        sounded like the judge was telling the jury that the defendant was guilty. The judge disagreed.

        However, by repeating the word "guilty," instead of stopping at "you are not to consider possible

        punishment in this case," the judge reinforced the very thing that the jury was asking about: we

        think he's guilty of something, but we're not quite sure it's murder. And, because the judge

        refused to give the involuntary instruction, again, because defense counsel did not put on any

                                                        - 62 -
        No. 1-11-3075

        evidence to support it, the jury had nowhere else to go. The combination of the judge's mind-set

        and the defense counsel's failure produced the perfect storm with Richardson right in the middle.

¶ 238          In People v. Johnson, 2012 IL App (1st) 091730, the appellate court considered the

        failure of the trial court to comply with Zehr and Illinois Supreme Court Rule 431(b) (eff. May 1,

        2007). Using a plain error analysis the court found that the evidence was closely balanced, that

        the trial court erred, and reversed and remanded. In the same case the appellate court was also

        asked to consider whether the judge's claimed hostility toward defense counsel was reversible

        error. The judge in the presence of the jury made disparaging remarks about defense counsel.

        The appellate court reversed and remanded on other grounds but took pains to point out that the

        judge's comments toward defense counsel outside the presence of the jury "were not 'reasonably

        required for the underlying progress of the trial.' " (Internal quotation marks omitted.) Johnson,

        2012 IL App (1st) 091730, ¶ 81 (quoting People v. Eckert, 194 Ill. App. 3d 667, 674 (1990)).

        The appellate court noted that "the need for judicial restraint in the court's conduct and remarks

        is not limited to the presence of the jury but must be maintained throughout all of its dealings

        with the litigants who come before it." (Emphasis added.) Johnson, 2012 IL App (1st) 091730, ¶

        80.

¶ 239          In Richardson, the court itself called attention to the fact that defense counsel did not

        present any evidence of Richardson's mental competence, and Richardson admitted inflicting the

        injuries on his daughter, so it can hardly be said within what actually happened that this was a

        close case. However, if defense counsel had presented evidence of his limited mental ability and

        evidence of his own childhood, it could be argued that on the issue of intent, and on the issue of

        recklessness, it might have been close – close enough for the jury to have had the benefit of the

        information and the alternate instruction.




                                                      - 63 -
        No. 1-11-3075

¶ 240          The judge's sarcasm created a specific problem for defense counsel. "The making of an

        objection to questions or comments by a judge poses a practical problem for the trial lawyer. It

        can prove embarrassing to the lawyer, but, more importantly, assuming that most juries view

        most judges with some degree of respect, and accord to them a knowledge of law somewhat

        superior to that of the attorneys practicing before the judge, the lawyer who objects to a comment

        or question by the judge may find himself viewed with considerable suspicion and skepticism by

        the very group whom his is trying to convert to his client's view of the facts, thereby perhaps

        irreparably damaging his client's interests. If he fails to object, he may, on appeal, be faced, as

        defendant here is, with the claim that his failure to act has precluded consideration of the error,

        and it is not always a sufficient answer to this situation to say that the objection can be made and

        ruling secured outside the hearing of the jury." (Internal quotation marks omitted.) People v.

        Mays, 188 Ill. App. 3d 974, 983 (1989).

¶ 241          If this is true where the judge's comments are made in front of a jury, it is no less true

        when the judge's sarcasm is directed to defense counsel before the trial has even begun. No

        public defender, assigned to a specific courtroom in Cook County, could be expected to

        complain to the judge directly about the judge's own bias or sarcasm without being afraid of

        effectively burning all bridges with the judge. It is inconceivable that any defense attorney

        would take the risk, let alone a public defender who has, by the nature of the job, to show up in

        front of that judge on a daily basis.

¶ 242                                      No Signed Miranda Waivers

¶ 243          Neither the defense attorney nor the appellate attorney raised the issue of the failure of

        the police or the assistant State's Attorney to get a signed Miranda waiver at any of the

        questionings before the video statement.



                                                       - 64 -
        No. 1-11-3075

¶ 244          Neither the defense attorney nor the appellate attorney raised the issue that the video

        consent form that was signed is not a substitute for a signed Miranda waiver.

¶ 245          Neither the defense attorney nor the appellate attorney raised the issue that although the

        video confession does acknowledge Miranda warnings, and an agreement to proceed by the 16-

        year-old and his mother was in the room, the mother did not affirmatively agree to proceed with

        the video warnings, the same mother who testified that the police had been abusive to her.

¶ 246                              No Notice of the Actual Charge of Murder

¶ 247          Neither the defense attorney nor the appellate attorney raised the issue that nowhere in

        the video confession did the assistant State's Attorney or the police tell Richardson that he would

        be charged with murder.

¶ 248          Neither the defense attorney nor the appellate attorney raised the issue of Detective

        O'Connell's failure to tell Richardson what he was being charged with when, as O'Connell

        testified, he told Richardson that he could be charged as an adult but did not say the charge

        would be murder.

¶ 249          Neither the defense attorney nor the appellate attorney challenged the court's statement

        that the defendant "implicated himself in murder" --the defendant was told he was being charged

        with child abuse. He was told later that his child died. No one ever mentioned the word

        "murder." His entire reaction might have been significantly different if a murder charge was

        made known to him.

¶ 250          Neither the defense attorney nor the appellate attorney challenged the court's statement

        that Richardson was "advised" he was facing a murder charge, when nothing in the record

        supports that statement.

¶ 251                                         Richardson's Injury



                                                       - 65 -
        No. 1-11-3075

¶ 252          Neither the defense attorney nor the appellate attorney raised the issue of a possible

        concussion leading to confusion or fatigue in reference to his two unrecorded sessions of

        questioning by the police and later with the assistant State's Attorney, and his one videotaped

        statement, although the defendant repeatedly stated he had been hit in the lockup, fell and hit his

        head, which may have indirectly resulted in his decision to be questioned before talking to an

        attorney or to the fact that no one sought medical attention for the juvenile in custody.

¶ 253          Neither the defense attorney nor the appellate attorney raised the issue that Richardson

        was already injured and had hit his head when Detective O'Connell questioned him the first time,

        and that questioning was done without a signed Miranda waiver.

¶ 254                                         Richardson's Illiteracy

¶ 255          Neither the defense attorney nor the appellate attorney raised the issue of Richardson's

        illiteracy at the time he was arrested and questioned and the impact that may have had on his

        ability to knowingly agree to be questioned without an attorney the first time Detective

        O'Connell questioned him or the second time he was questioned or in the video statement. Nor

        did anyone ask if the first police officer on the scene, Officer Hayes, who clearly got some

        information from Richardson, and who was with him from about 3:30 to about 9:08 p.m. that

        evening ever gave him Miranda warnings.

¶ 256                   OPS Not Allowed to Speak to Richardson Before He Was Questioned

¶ 257          Neither the defense attorney nor the appellate attorney challenged the procedure, or even

        verified it was the procedure at the time, that an OPS investigation of injury to a juvenile not

        charged as an adult had to wait until after the juvenile is questioned.

¶ 258                   Mother Not Allowed to Speak to Richardson Before Questioning




                                                        - 66 -
        No. 1-11-3075

¶ 259            Neither the defense attorney nor the appellate attorney challenged the fact that

        Richardson's mother was not allowed to speak to her juvenile son alone before the questioning

        began.

¶ 260                       Failure of Youth Officer to Protect Richardson from Injury

¶ 261            Neither the defense attorney nor the appellate attorney raised the fact that youth officer

        Nolan left Richardson, a juvenile charged with child abuse, alone at the police station where he

        was injured by police personnel. Richardson admitted that none of the police personnel who

        questioned him had injured him and that he was injured in a different place than he was

        questioned. However, he was arrested and taken to the Second District where he was injured in

        the lockup, and then moved upstairs in the same building to the rooms used for questioning by

        Area 2 Detectives. Officer Hayes took him to the building and moved him from the Second

        District on the first floor, to the lockup downstairs and then later to Area 2 upstairs. The same

        building had the staff who injured him and the staff who questioned him. To an immature 16-

        year-old it is more likely than not that the whole building seemed to be the same thing: police

        department facilities, staffed by police department personnel.        Do we really believe that

        Richardson when he was being questioned knew and understood the different layers of police

        staffing, or that he was safe from further abuse?

¶ 262                        Questioning Without a Youth Officer or Interested Adult

¶ 263            Neither the defense attorney nor the appellate attorney challenged the court's assertion

        that Richardson was never questioned outside the presence of the youth officer, since he was

        arrested and with police from 3:30 to 9:08 p.m. before youth officer Nolan saw him for the

        questioning. He was with Officer Hayes at the time of his arrest. He clearly made some sort of

        statements and was clearly asked some questions by someone: his arrest did not occur in silence.

        He was in the lockup without a youth officer for some period of time, then he was back again

                                                       - 67 -
        No. 1-11-3075

        with Officer Hayes until 9:08 when the questioning by Detective O'Connell began. Officer

        Hayes did talk with Richardson at the time of his arrest and it is clear that Officer Hayes did ask

        Richardson what happened. That would be questioning without the presence of a youth officer.

¶ 264                            Richardson's "Appearance" in the Video Statement

¶ 265          Neither the defense attorney nor appellate attorney challenged the trial court's assessment

        that in the video statement Richardson "appears to be calm, cool, collected" and not agitated,

        when it was just as likely that he was exhausted after being in custody from 3:30 p.m. February

        9, to the time of the statement, about 9:08 a.m. on February 10, 2001, that he was a juvenile in

        intimidating surroundings, and he was never asked at the trial to testify about his condition or

        his physical or emotional state by the time of the video, which left the judge and the jury with

        only their observation without explanation.     It is also possible that by the time the video was

        made the defendant felt that the statement he was giving was rehearsed.           Further, no one

        seriously challenged Assistant State's Attorney Heil when he said he did not take notes of his

        questioning of the defendant before the video, yet Heil had a sequence of events lined up so

        neatly that his leading questions just marched along so that all the defendant had to do was agree

        with Heil on the details.

¶ 266          Neither the defense attorney nor the appellate attorney challenged the trial court's

        statement that its decision was based in part on the fact that the mother said the police only got

        upset when she said she wanted to go home, when in fact it was the mother's testimony that the

        police got upset with her, called her names and yelled at her when she told her son that he did not

        have to speak to them.

¶ 267          Neither the defense attorney nor the appellate counsel challenged the trial court's

        statement that the mother indicated full cooperation not coercion, when in fact the mother

        testified that she and the defendant were both scared of the police.

                                                       - 68 -
        No. 1-11-3075

¶ 268             The defense attorney did not object, and the appellate counsel did not raise as an issue the

        failure to object, to the state's motion in limine regarding the lack of any evidence of any prior

        child abuse to Diamond at the hands of the defendant, which effectively cut off defendant's

        ability to provide evidence that his history with Diamond was free from any injury to the child.

¶ 269             Neither the defense attorney nor the appellate attorney challenged the trial court's

        statement to the jury that while this is a murder case it "is not going to take much of your time,"

        signaling indirectly to the jury that it was a cut and dried matter that should be an easy case,

        arguably giving the jury the impression that the court thought the defendant was guilty.

¶ 270                                        Problem with Zehr Principles

¶ 271             Neither the defense attorney nor the appellate attorney raised the issue of missing Zehr

        questioning of the jury panel.

¶ 272             At the time of the trial Rule 234 still required the defense attorney to ask for the Zehr

        principles during the questioning of the potential jury members.

¶ 273             Defense counsel did not request the Zehr questions.

¶ 274             "We are of the opinion that essential to the qualification of jurors in a criminal case is that

        they know that a defendant is presumed innocent, that he is not required to offer any evidence in

        his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to

        testify in his own behalf cannot be held against him." People v. Zehr, 103 Ill. 2d 472, 477

        (1984).

¶ 275             In Richardson's trial, on February 9, 2005, the trial court told all of the assembled

        prospective jurors that the case is "important, however, it is not going to be taking up much of

        your time."




                                                           - 69 -
        No. 1-11-3075

¶ 276          After the first group of 12 potential jurors was seated in the jury box, the trial court

        advised them that the State must prove the defendant guilty beyond a reasonable doubt, and

        asked if anyone had "any problems with this proposition." None did.

¶ 277          Defense counsel later questioned the same group of 12, asking if anyone had any

        problems with the proposition that it cannot be held against the defendant if he does not testify

        on his own behalf? None did.

¶ 278          That means that neither the entire group of potential jurors nor the specific 12 in the first

        group in the jury box, 6 of whom were selected for the jury, were ever asked if they understood

        that a defendant is presumed innocent and accepted that proposition.

¶ 279          The trial court then dismissed 6 potential jurors from the first group and sent the

        remaining 6 jurors to the jury room and seated 14 more potential jurors in the jury box.

¶ 280          The trial court then asked those 14 if they understood that the defendant was presumed

        innocent and that it was the State's burden to prove the defendant guilty beyond a reasonable

        doubt. No one disagreed. However, by this time six of the final jurors were already in the jury

        room and did not hear this question or have a chance to answer.

¶ 281          No one asked the second group of 14 if they understood that the defendant was not

        required to offer evidence on his own behalf, or if they accepted that proposition.

¶ 282          This means that only 6 and 2 alternates of the final 12 on the jury were asked if they

        knew that the defendant was presumed innocent and that the State had the burden of proving him

        guilty beyond a reasonable doubt, and that none of the final 12 and 2 alternates was ever told by

        anyone that the defense was not required to offer evidence on his behalf.

¶ 283          Immediately after the jury selection was complete the court went into trial mode and the

        State made its opening statement.



                                                       - 70 -
        No. 1-11-3075

¶ 284          Following the trial, the trial court instructed the jury on the four Zehr principles.

        However, the Zehr court itself held: "If a juror has a prejudice against any of these basic

        guarantees, an instruction given at the end of the trial will have little curative effect. *** [T]he

        subject matter of the questions should have been covered in the course of interrogation on voir

        dire." Zehr, 103 Ill. 2d at 477.

¶ 285                                Defendant's Own History of Discipline

¶ 286          The defense attorney did not ask the defendant or his mother what discipline was used on

        him by his mother, leaving the jury with no idea that the acts he took against Diamond were what

        he had grown up with. We need only look at today's headlines to see that child discipline and

        child abuse have been mixed up in the minds and lives of many families, and that in this

        defendant's family abusive discipline was in fact the norm.

¶ 287          The appellate attorney did not raise this failure by the defense attorney on appeal.

¶ 288          This issue has new life in recent headlines.

¶ 289          Famous football star, Vikings running back Adrian Peterson has been charged with child

        abuse for "whooping" his four-year-old son with a tree branch. His defense is that he was

        "whooped" as a child by his father and that he is "being punished for behavior that is widely

        accepted in black culture." Chicago Sun Times columnist Mary Mitchell, in her column Tuesday,

        September 26, 2014 reported the incident, and his comments and added: "Yesterday we called it

        discipline. Today, they call it a crime. *** That's why whoopings are best left a cultural relic."

¶ 290          Indeed it is widely held that those who were beaten as children become beaters,

        themselves. This does not make it right. But it does offer an explanation for what is otherwise

        inexplicable: that Richardson in "disciplining" his child fell back on the same discipline he

        himself suffered as a child, only without the filters of adult reflection and understanding or the

        knowing and acceptance that he must break away from the wrong lessons of his own past.

                                                       - 71 -
        No. 1-11-3075

¶ 291          If Richardson was unable to understand the difference between willful disobedience by

        his one-year-old, and those behaviors that make one-year-old children so endearing and

        frustrating at the same time, then we must look first at his own mental condition and second at

        his own discipline history to understand what was missing from this 16-year-old's ability to cope.

¶ 292          If Richardson did not know that his child was not actively disobeying him, if, in fact, he

        really thought that telling a one-year-old to stop vomiting, to stand still, to not look at him would

        actually work, then we must believe we are dealing with a significantly immature person whose

        expectations and frustration would find answers only in his own very limited past. Did his own

        mother ever lovingly correct his behavior? Did anyone ever explain to him that babies are not

        just little persons, and cannot be expected to behave like grown-ups or even small children? Did

        he have the mental capacity to understand that on his own?

¶ 293          Michael Eric Dyson, a professor of sociology at Georgetown University, said in his op-ed

        in The New York Times, September 18, 2014: "[S]tudies say our children endure [suffering]

        when they are beaten: feelings of sadness and worthlessness, difficulties sleeping, suicidal

        thoughts, bouts of anxiety, outbursts of aggression, diminished concentration, intense dislike of

        authority, frayed relations with peers, and negative high-risk behavior." Mr. Dyson of course

        denounces the practice as "child abuse dressed up as acceptable punishment" as do all modern

        sources and parents, but that still begs the question: what was Richardson taught? Do we really

        believe that he had the benefit of modern psychology or sociology to inform his immature

        reaction to his child's behavior? Or was his own behavior modeled after the only constant adult

        in his life, his mother who beat him with cords, belts, sticks?

¶ 294          Child Trends, a research group, in studying families of all races reported that: "[u]se of

        corporal punishment is linked to negative outcomes for children (e.g., delinquency, antisocial

        behavior, psychological problems, and alcohol and drug abuse), and may be indicative of

                                                        - 72 -
        No. 1-11-3075

        ineffective parenting. Research also finds that the number of problem behaviors observed in

        adolescence is related to the amount of spanking a child receives. The greater the age of the

        child, the stronger the relationship." Child Trends, Attitudes Toward Spanking, (2013), available

        at http://www.childtrends.org/?indicators=attitudes-toward-spanking.

¶ 295                    Did Richardson Intend to Murder the Child? Medical Examiner Testimony

¶ 296          The due process clause of the Fourteenth Amendment requires that a person may not be

        convicted in state court "except upon proof beyond a reasonable doubt of every fact necessary to

        constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). See

        also U.S. Const., amend. XIV; People v. Cunningham, 212 Ill. 2d 274 (2004).

¶ 297          In Richardson's case the State presented evidence, and Richardson admitted, that he

        intended to inflict the injuries to Diamond, but Richardson contended he did not intend to murder

        her. The State's only evidence of his intent was the medical examiner's testimony that the

        injuries were intentionally inflicted, that is, they could not have occurred by accident. But

        Richardson did not deny that. By framing the injuries as intentional the State used that same

        intent as an element of murder, that is, to intend to murder the child. Richardson denied that.

        His mental capacity, his childhood, his age and experience were never offered by defense

        counsel to challenge the State's proof beyond a reasonable doubt of his intent to murder.

¶ 298          Appellate counsel did not raise this issue.

¶ 299          Neither the defense attorney nor the appellate attorney raised as an issue the testimony of

        the medical examiner which may have been misleading to the jury about the intent of the

        defendant.      The medical examiner testified that the injuries to the child were inflicted

        intentionally, the defense objected and the court overruled the objection. Then, the medical

        examiner testified again that the injuries to the child were inflicted intentionally, the defense

        objected and the objection was sustained, however, the damage was already done—the medical

                                                       - 73 -
        No. 1-11-3075

        examiner used the specific word "intentionally" twice in but a few minutes, reinforcing the

        perception that the defendant had intentionally murdered his child. The defendant never denied

        he intentionally inflicted the injuries to his child, but he did deny that he intended to murder her.

        Those two concepts were irretrievably meshed by the medical examiner's use of the word

        "intentionally."

¶ 300                   No Argument by Defense for Motion for Directed Finding

¶ 301          The defense attorney did not even bother to argue on her motion for a directed finding at

        the close of the State's case, and the appellate attorney did not raise this as an issue of ineffective

        assistance. Of course, since the defense attorney did not produce any evidence in the motion to

        suppress hearing, the court had no evidence on which to even consider whether the State had

        made its case: she demonstrated her own ineffectiveness when she was unable to find any reason

        to give for a directed verdict, when at the very least if she had presented the evidence of his

        mental ability and history of family life, she could have argued the State had not proved intent

        beyond a reasonable doubt.

¶ 302                   No Evidence Provided to Support Finding of Reckless Behavior

¶ 303          The defense attorney did not ask Richardson any questions about his own childhood, his

        mother's discipline methods, or the situation in his family where he was really on his own, living

        with his mother's boyfriend's sister so he could watch her three children, as a free baby sitter,

        when he should have been able to look to his own mother for care.

¶ 304          The appellate counsel did not raise this as an issue of ineffective assistance.

¶ 305          The defense attorney put on no evidence of his character, personality, mental ability, or

        upbringing to put his actions into some perspective, so when the court said "there is no evidence

        *** of recklessness" the court was technically correct. And that statement by the court is

        evidence itself that defense counsel was ineffective.

                                                         - 74 -
        No. 1-11-3075

¶ 306          The appellate counsel did not raise this as a matter of ineffective assistance.

¶ 307                       No Argument by Defense for its Motion for a New Trial

¶ 308          The defense attorney made no argument in her motion for a new trial. Clearly, she

        demonstrated her own ineffective assistance by failing to provide any evidence for the court to

        consider, much less grant, a motion for a new trial.

¶ 309          Appellate counsel did not raise that as an issue of ineffective assistance.

¶ 310                                                 Sentencing

¶ 311          The defense attorney did not challenge the court's remark that there was no evidence in

        mitigation in the psychological evaluation, when in fact there was plenty of evidence of his mild

        mental retardation, his illiteracy at the time of his arrest, and his low functioning IQ of 61,

        described in the Behavioral Clinical Exam (BCX) and his family and social history, all of which

        the court had an obligation to consider when sentencing a juvenile at the time of the offense.

        The court is under an obligation to consider the potential for rehabilitation. The presentence

        report plainly stated that the defendant had made significant gains in his reading while

        incarcerated, and that with further educational opportunities he could be expected to improve

        even more. The court simply did not take any of this into consideration.

¶ 312          The appellate counsel did not raise this as a matter of ineffective assistance of counsel, or

        as a challenge to the sentence of 40 years.

¶ 313          The "seriousness of the crime committed is considered the most important factor in

        fashioning an appropriate sentence." People v. Cox, 377 Ill. App. 3d 690 709 (2007). However,

        from 2005 and 2012 the United States Supreme Court spoke with compelling clarity about new

        scientific research that demonstrates that juvenile offenders are not just small adults and should

        be treated with the understanding that they have an undeveloped sense of responsibility, are more



                                                         - 75 -
        No. 1-11-3075

        easily influenced by outside pressure, and are not fully formed, meaning his or her personality

        traits are still susceptible to change. Roper v. Simmons, 543 U.S. 551, 569-70 (2005). "[T]he

        susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible

        conduct is not as morally reprehensible as that of an adult.' " Roper, 543 U.S. at 570 (quoting

        Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)). "[T]he Supreme Court has acknowledged

        that offense severity does not automatically turn a child into an adult and that immaturity is

        relevant in assessing culpability." People v. Willis, 2013 IL App (1st) 110233, ¶ 57 (citing

        Miller, 567 U.S. ___, 132 S. Ct. 2455, J.D.B. v. North Carolina, 564 U.S. ___, 131 S. Ct. 2394

        (2011), Graham, 560 U.S. 48, and Roper, 543 U.S. 551. The other factors to be considered by

        the court in sentencing are "the defendant's personal history, including his age, demeanor, habits,

        mentality, credibility, criminal history, general moral character, social environment and

        education." People v. Maldonado, 240 Ill. App. 3d 470, 485-86 (1992).

¶ 314          Our courts have consistently held that "[i]f mitigating evidence is presented to the trial

        court, we are to presume, absent some indication to the contrary, other than the sentence itself,

        that the trial court considered it." (Emphasis added.) Willis, 2013 IL App (1st) 110233, ¶ 123

        (citing People v. Benford, 349 Ill. App. 3d 721, 735 (2004)).

¶ 315          The problem with Richardson's case is that because defense counsel did not present any

        mitigating evidence of Richardson's mental ability or family/social history, only the PSI and the

        BCX were available to the judge in mitigation. While these two reports are compelling, the

        missing evidence of his mental ability and family/social history before the trial, at the motion to

        suppress, and during the trial itself would have provided a context for the actions of Richardson,

        which was important for consideration in jury deliberations and in sentencing. The jury never

        saw those reports. The court clearly read the reports before sentencing. However, defense

        counsel's failure to provide the court and the jury with Richardson's immaturity and his own

                                                       - 76 -
        No. 1-11-3075

        history left him unable to persuade the jury in its verdict or the judge in sentencing him to 40

        years.

¶ 316                                      Richardson Did Not Know

¶ 317            There are lots of things that Richardson did not know when he was 16. He did not know

        that you cannot feed a one-year-old an adult-size bowl of cereal. He did not know that pushing

        on her stomach would inevitably lead to her vomiting. He did not know that one-year-olds

        cannot be expected to stop vomiting because someone says to – in fact, no adult could do that

        either. He did not know that it is impossible to expect a one-year-old to stand still for a few

        seconds let alone several minutes. He did not know that leaving a one year old in a bathtub even

        for a minute is an invitation to disaster. He did not know that a karate chop to the child's ribs

        could cause internal injuries that could kill her. He did not know that hitting a small child in any

        way could cause such severe internal injuries that she could die. He did not know that shaking to

        wake her up could kill her. Or that a neighbor shaking the same child could kill her. The court

        and the system expected the mentally retarded 16-year-old with a functioning IQ of 61 to know a

        cumulation of things that many adults only vaguely realize, and avoid behavior that many

        parents, even today, engage in as forms of discipline.

¶ 318                                              Conclusion

¶ 319            Even Richardson knows he must be held accountable for the terrible things he did to

        Diamond. No one could hear the facts in this case and not be moved to seek justice for that

        child. But we must also seek justice for another child, the boy child who was her father but was

        unable to be her parent. Justice for this defendant would be to remand his pro se postconviction

        petition so that it can move to the second stage with an attorney who can amend the petition and

        properly prepare his case.



                                                       - 77 -
