                                         2015 IL App (1st) 111483

                                                                                    THIRD DIVISION
                                                                                      August 12, 2015

     Nos. 1-11-1483 & 1-14-0801, consolidated


     THE PEOPLE OF THE STATE OF ILLINOIS                      )              Appeal from the
                                                              )              Circuit Court of
             Plaintiff-Appellee,                              )              Cook County
                                                              )
     v.                                                       )              90 CR 12036
                                                              )
     SHAWN WHIRL,                                             )              Honorable
                                                              )              Jorge Alonso,
             Defendant-Appellant.                             )              Judge Presiding.


             JUSTICE MASON delivered the judgment of the court, with opinion.
             Justices Lavin and Hyman concurred in the judgment and opinion.


                                                 OPINION

¶1           Following the denial of a motion to suppress his confession, petitioner-appellant Shawn

          Whirl pled guilty to a murder and armed robbery committed on April 18, 1990, and was

          sentenced to 60 years in prison. Whirl's motion for leave to file a successive postconviction

          petition was denied on April 12, 2011. In 2012, the Illinois Torture Inquiry and Relief

          Commission issued a disposition on Whirl's claim that his confession was coerced, which led

          to the filing of a combined petition under the Post-Conviction Hearing Act (Postconviction

          Act) (725 ILCS 5/122-1 et seq. (West 2012)) and the Illinois Torture Inquiry and Relief

          Commission Act (TIRC Act) (775 ILCS 40/1 et seq. (West 2012)). Following an evidentiary

          hearing, Whirl's combined petition was denied. This consolidated appeal involves the denial

          of Whirl's motion for leave to file a successive postconviction petition (No. 1-11-1483) and

          the denial of his combined petition (No. 1-14-0801). Whirl contends that the trial court erred
     Nos. 1-11-1483 & 1-14-0801, cons.

        in denying the petition where it (1) based its decision on whether it personally believed Whirl

        was tortured, (2) disregarded the pattern of misconduct in which the detective who obtained

        Whirl's confession participated, (3) declined to give any weight to the fact that each detective

        who could have rebutted Whirl's allegations of torture asserted his fifth amendment privilege,

        and (4) concluded that the evidence did not constitute a Brady violation (Brady v. Maryland,

        373 U.S. 83 (1963)). Finding merit to Whirl's arguments, we reverse and remand.

¶2                                           BACKGROUND

¶3                                 Initial Proceedings in the Trial Court

¶4          In the early morning hours of April 18, 1990, the body of 40-year-old Billy Williams, a

        taxicab driver, was found inside a cab in the parking lot of Gately Stadium on the south side

        of Chicago with a gunshot wound to the back of his head. The cab Williams had been

        driving at the time was dusted for fingerprints, and prints taken from the passenger door were

        identified as belonging to Whirl. Detectives attempted to locate Whirl at his mother's address

        but were unsuccessful.

¶5          The police were able to locate Whirl on April 20, 1990, and he was arrested and taken to

        Area 2 for questioning. 1 Following an interrogation by Detectives James Pienta and William

        Marley, Whirl confessed to Williams' murder.           Whirl was charged with murder and

        attempted armed robbery.

¶6          At the hearing on Whirl's motion to suppress his confession, Whirl testified that he was

        taken to Area 2 at 12 p.m. on April 20 and handcuffed by one hand to the wall of an




            1
              According to the police report, the detectives left a business card at Whirl's mother's
     house. When Whirl called the number on the card on April 20 to find out why the police were
     looking for him, he was told to call back at 12:30 p.m. When Whirl called back, the police
     traced the call and arrested Whirl while he was still on the phone.
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        interview room. He was first interviewed by Detectives John Duffy and James Dwyer. He

        answered their questions about his whereabouts over the previous two days and denied any

        involvement in the murder. Whirl estimated the duration of the interview as somewhere

        between 45 minutes and 2 hours. After Duffy and Dwyer left, Whirl was left by himself in

        the interview room with his hand still cuffed to the wall and he fell asleep.

¶7         Several hours later, Detective Pienta entered the room, stepped on Whirl's foot, said

        "wake up nigger" and slapped him in the face. Pienta handcuffed both of Whirl's hands to

        the wall and told him the statement he gave to the other detectives "won't do." Pienta told

        Whirl that if Whirl cooperated with him, Pienta would get him something to eat and would

        let Whirl see his girlfriend and go home. However, if Whirl did not cooperate, Pienta said

        that they would put his girlfriend in the interview room instead. Pienta instructed Whirl to

        repeat after him and there would be no problem.

¶8         Pienta then began telling Whirl things to say in his statement about how the murder was

        committed. When Whirl would not agree to the things Pienta was saying, Pienta slapped

        him. As Whirl continued to deny any involvement in the murder, Pienta continued to slap

        him. Whirl had his leg up on the bench and Pienta asked him about a wound he noticed on

        Whirl's leg. Whirl told him it was from a fight he had been in a few days earlier, during

        which he fell an elevated train platform and scraped his leg.

¶9         Whirl continued to get the statement wrong and Pienta started to get angry. Pienta told

        Whirl to put his leg down on the floor. Pienta then stepped on Whirl's foot and scraped the

        wound on his leg with a key Pienta had removed from a set of keys he was carrying. Whirl

        yelled in pain after Pienta scraped his wound and Pienta told him to shut up.        Pienta

        continued to tell Whirl what to say and scrape his injury with the key. Eventually, Whirl

        started to repeat the statement back but could not remember all of the details. When Whirl

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          would make mistakes in repeating the statement back, Pienta would slap him and scrape his

          wound with the key again. Every time Pienta scraped his wound, Whirl would yell in pain

          and tell him to stop.

¶ 10         Sometime after Pienta left the room, an assistant State's Attorney came in and asked

          Whirl how he had been treated. Whirl told him he had been treated fine and the assistant

          State's Attorney left. Pienta returned to the room and had Whirl go over the statement again.

          Pienta then took Whirl to see his girlfriend, Tanya. Whirl was not allowed to speak to Tanya

          and could only see her through a glass partition, but Tanya could not see him.

¶ 11         Whirl remained in the room where they had taken him to see Tanya. Pienta, another

          officer, the assistant State's Attorney and a court reporter were also in the room. Whirl gave

          the statement Pienta had previously told him to give. The assistant State's attorney had Whirl

          read the statement the court reporter typed and asked him if it was correct. Whirl said yes

          and the assistant State's Attorney asked him to initial the statement.

¶ 12         Erma Whirl, Whirl's mother, testified that the day before Whirl's arrest, she asked him

          what was wrong with his leg. Whirl did not want her to see it, but Erma lifted his pant leg

          and looked anyway. There was a sore on Whirl's leg but it was not bleeding. When shown

          the picture of Whirl's wound that was taken after his arrest, Erma said that the sore in the

          photograph looked wider than the sore she had seen and had a scab or something on it, which

          had not been there when she looked at it.

¶ 13         Tanya Crawford testified that she had been in a relationship with Whirl for two years at

          the time of his arrest. On April 20, 1990, some police officers came to her home around 4

          p.m. and took her to the police station for questioning. Crawford was taken to an interview

          room and remained there until 1 a.m. After she had been in the room for a while, Crawford



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          heard Whirl "hollering." She could not hear Whirl saying anything but heard a loud "aaah"

          sound and she recognized the voice as Whirl's voice. Crawford heard the sound repeated a

          number of times.

¶ 14          Renayldo Howard, a sergeant in the United States Army and Whirl's brother, testified that

          he received a call from another brother that Whirl was in jail and went to the police station

          around 3 a.m. on April 21. Howard was allowed to visit Whirl and talked to him in a visiting

          area. They sat in cubicles where they were separated by a partition that had glass from about

          waist level up. Howard noticed Whirl was not wearing a belt or shoelaces and asked him

          why. Whirl put his leg out and said the shoelaces were taken away "because we might

          strangle ourselves." Howard then noticed a raw sore on one of Whirl's legs.

¶ 15          Howard was shown a photograph that was taken some time after Whirl's interrogation.

          Howard explained the sore he saw the night of Whirl's arrest looked different than the sore in

          the photo because the photo showed a scab on the sore but when Howard saw it, the sore was

          raw and just starting to clot.

¶ 16          The trial court would not allow Howard to testify, on hearsay grounds, regarding what

          Whirl told him when Howard asked how he had gotten the sore on his leg. However, the trial

          court did accept an offer of proof made by Whirl's attorney, who informed the court that if

          Howard was allowed to testify as to Whirl's response, he would state that Whirl told him the

          police "did things" to him.

¶ 17          Detective John Duffy testified that he and his partner interviewed Whirl at approximately

          2 p.m. on April 20. Whirl was not handcuffed during the interview, but was handcuffed

          when he was left alone in the interview room. Whirl told Duffy about an injury on his left




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          leg, then pulled his pant leg up and showed the injury to Duffy. The injury was not bleeding

          at that time but was in the process of healing and was scabbed over.

¶ 18         Pienta testified that he and his partner, Marley, first interviewed Whirl around 6:30 p.m.

          on April 20. Pienta read Whirl his Miranda rights (see Miranda v. Arizona, 384 U.S. 436

          (1966)) and Whirl stated that he wanted to waive his rights and talk to them. The interview

          lasted for 30 to 45 minutes and Marley was present for the entire interview. Pienta denied

          scraping Whirl's leg with a key or threatening Whirl in any way. He further stated that Whirl

          was not handcuffed to the wall at any time during the interview.

¶ 19         Near the end of the interview, Whirl mentioned a leg injury. Pienta could not remember

          why the injury was mentioned but saw it briefly and described it as a large, "older injury"

          that was scabbed over. Whirl told Pienta he sustained the injury during an incident with

          "gang bangers" on an "el" platform that occurred "a couple years prior" to his arrest.

          However, on cross-examination Pienta stated Whirl told him the injury had occurred two or

          three weeks prior to his arrest. After refreshing his recollection with the notes he took during

          the interview, Pienta conceded that the injury occurred two or three days prior to Whirl's

          arrest. Pienta maintained that the injury was scabbed over and healing when he interviewed

          Whirl.

¶ 20         Richard Stevens, an assistant State's Attorney, testified that he first spoke with Whirl

          around 9 p.m. on April 20. Pienta and Marley were both in the interview room and Whirl

          was not handcuffed to the wall. Stevens advised Whirl that he was an attorney who worked

          with the police, read Whirl his Miranda rights, and asked if Whirl would be willing to speak

          with him. Whirl gave a 20 minute oral statement and Stevens then asked the detectives to

          leave the room. After they left, Stevens asked Whirl how he had been treated and Whirl said

          he had been treated fine. Whirl agreed to repeat his statement in front of a court reporter. At

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          11 p.m., a court reporter transcribed Whirl's statement. Stevens, Pienta and Marley were also

          in the room, but Stevens conducted the questioning and the detectives did not speak during

          the statement. Whirl read the typed statement and signed it.

¶ 21         According to the statement, Whirl had been visiting a friend in Harvey, Illinois. Whirl

          left his friend's house and walked to a bus terminal. Whirl stated that he was planning to rob

          a cab. When asked why, Whirl responded, "For one thing, I didn’t have any rent money."

          Whirl said that he had a .45 automatic that he had gotten "off the street" for $40 or $45.

          Whirl took the bus to 95th Street and the Dan Ryan Expressway and from there took the "el"

          to 87th and the Dan Ryan. He went to a store called Ames and bought some items for his

          fiancée.

¶ 22         When Whirl returned to the "el" stop at 87th and the Dan Ryan, he saw three gang

          members. Whirl was wearing a starter hat and the gang members were talking about taking

          his hat. One of them approached him and asked if the jacket went with the hat. Then another

          gang member hit him in the face and knocked him off the platform. As Whirl fell, he scraped

          his leg. Whirl grabbed one of the gang members by the foot and knocked him down. Whirl

          then jumped up and ran to get on the train. The gang members also got on the train and

          Whirl ran to the front of the train. When Whirl got off the train at 95th and the Dan Ryan, he

          saw the gang members behind him so he ran over to a gas station where he saw a cab and

          asked the cab driver to take him to 102nd and Forest.

¶ 23         Whirl sat behind the driver in the cab, but when they reached 102nd and Forest, Whirl

          asked the cab driver to take him to Gately Stadium because he had an interview there.

          During the cab ride, Whirl told the cab driver about some problems he was having and asked

          the driver how his day was going and had he made any money. When the driver stopped the

          cab at Gately Stadium, Whirl said, "I am sorry, sir, this is a stickup" and put the gun to the

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          driver's head. Whirl asked the driver to give him the change that was in a pouch on the

          dashboard of the cab. The driver adjusted the rearview mirror and looked at Whirl but did

          not give him the change. Whirl said, "I was thinking about running and leaving it alone

          because I couldn't do it after telling him my problems and listening to him." Whirl lowered

          the gun, but when the cab driver turned around and his elbow touched the gun, Whirl raised

          the gun and shot him in the head.

¶ 24          After the gun went off, it fell to the floor. The cab was moving so Whirl reached up and

          put the car in park. The car kept going and hit a yellow divider in the parking lot before it

          stopped. Whirl got the Ames bag from the backseat, found the gun and picked it up, then

          opened the cab door and ran. Whirl ran into the middle of a park, dropped to his knees,

          started crying and threw the gun. Then he ran from the area and was arrested two days later.

¶ 25          Whirl was asked how he had been treated by the police and he responded, "Okay." He

          confirmed that he was allowed to use the washroom and that he was given some potato chips

          and a drink.

¶ 26          The parties stipulated that if Dr. Banerjee, a doctor who worked at Cermak Health

          Services at the Cook County jail, was called to testify, he would testify that on April 25,

          1990, he prescribed a dressing for a wound on Whirl's left leg.

¶ 27          The trial court denied the motion to suppress, finding that the testimony, taken as a

          whole, did not indicate that Pienta coerced Whirl or inflicted any injury on him. The court

          noted that Whirl told the assistant State's Attorney that he had been treated well and did not

          tell anyone at the jail about the leg injury.

¶ 28          After the motion to suppress was denied, Whirl's counsel requested a Rule 402 (Ill. S. Ct.

          R. 402 (eff. Feb. 1, 1981)) conference to enter a guilty plea and noted that if the case went to


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          trial, the State would be seeking the death penalty. The trial court informed the parties that if

          Whirl was found guilty, the court would most likely sentence him to a minimum of 60 years.

¶ 29         Following the State's summary of the evidence, defense counsel asked the trial court to

          consider that the statement indicated that Whirl intended to rob the cab driver and held a gun

          to his head, but then hesitated because prior to the attempted robbery, he and the cab driver

          had been having a conversation and he did not want to follow through with the robbery. It

          was only when the cab driver made a sudden movement that Whirl fired the gun. The trial

          court stated that its suggestion was still 60 years and defense counsel asked for a recess to

          confer with Whirl.

¶ 30         When the conference resumed, defense counsel asked if the court would consider 50

          years instead, but the court did not change its position. After another recess to confer with

          Whirl, defense counsel withdrew the plea of not guilty and entered a plea of guilty. After the

          trial court determined that Whirl understood the charges and the sentences that could be

          imposed, ascertained that Whirl pled guilty voluntarily, and sentenced him to 60 years,

          defense counsel informed the court that Whirl wanted to address the court.

¶ 31         Whirl stated: "The thing I have to say is for the reason I'm taking this plea is for the

          simple fact that I didn't do it. I have to say I didn't do it." When the court asked, "You didn't

          do it?" Whirl repeated his denial. When the trial court asked why Whirl was entering a plea

          of guilty, Whirl started to explain that it was because if he lost the case he could get the death

          penalty, but the trial judge interrupted and said he would not accept a guilty plea and would

          not sentence Whirl to 60 years if Whirl denied committing the offense.

¶ 32         Defense counsel informed the trial court that he thought Whirl perhaps did not have full

          confidence in his attorney. The trial judge stated that he had never encountered a situation



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          where a defendant pled guilty, was sentenced and then immediately proclaimed his

          innocence. The court indicated its intention to select a jury that afternoon and proceed to

          trial.

¶ 33          After another recess, Whirl informed the court that the reason he said he did not commit

          the offense is because he had never been to the penitentiary before and was afraid of doing

          the time, but he wanted to reinstate his guilty plea. The trial court questioned Whirl again

          regarding the voluntariness of his plea and resentenced him to 60 years in prison.

¶ 34                                      Postconviction Proceedings

¶ 35          Whirl did not file a direct appeal or seek to withdraw his guilty plea. Whirl's initial

          postconviction petition filed in August 2008, claiming that he was never admonished

          regarding the three years of mandatory supervised release, was summarily dismissed at the

          first stage as frivolous and patently without merit. This court affirmed that dismissal. People

          v. Whirl, No. 1-09-0791 (2010) (unpublished order under Supreme Court Rule 23).

¶ 36          In 2011, Whirl sought leave to file a successive postconviction petition in which he

          claimed (1) ineffective assistance of counsel for failure to interview witnesses and obtain

          internal records regarding his torture claim and (2) actual innocence. In support of his actual

          innocence claim, Whirl attached Office of Professional Standards (OPS) records for Pienta,

          an affidavit from the attorney for Aaron Patterson detailing a systematic pattern of abuse by

          Pienta, the transcript from the sentencing hearing, and an affidavit from Alexis Ballard. 2

          Whirl did not attach the transcript from the suppression hearing because he had been unable

          to obtain it.




              2
               The trial court referred to this individual as "she" and "Ms. Ballard" but in a successive
       postconviction petition, Whirl refers to this individual as "he."
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¶ 37          Ballard averred that he was waiting for a bus on 95th Street in April of 1990 when he

          witnessed Whirl being chased by Tommie Thompson. Ballard saw Whirl get into a cab. The

          cab returned a short time later and Thompson and one of his friends got into the cab. Ballard

          ran into Thompson later in the neighborhood and Thompson told him that he and his friends

          robbed and killed the cab driver who had driven Whirl away. Because the driver had driven

          Whirl off while Thompson and his friends were trying to "stick Whirl up," Thompson said he

          took it out on the driver once the driver returned to 95th Street. Ballard acknowledged that

          he did not witness the shooting and explained that he really did not want to get involved

          because Thompson was his friend. However, "[i]t is a known fact that Tommie commited

          [sic] the murder on the cab driver just about every body in the 100's and neighborhood knew

          of this."

¶ 38          In denying Whirl's motion for leave to file the petition on April 12, 2011, the trial court

          found that Whirl had not demonstrated the requisite cause and prejudice for his ineffective

          assistance claim. In reaching this determination, the trial court stated that it had reviewed all

          of the documentation submitted but "it appears as though this is the first time petitioner is

          alleging that certain Chicago Police Detectives tortured and abused him. Petitioner offers

          this court no evidence to indicate that he made this claim prior to or at the time of trial." In

          explaining its finding on Whirl's actual innocence claim, the trial court again stated that

          Whirl was raising the allegation that he was tortured and coerced into making an inculpatory

          statement for the first time in his postconviction petition. The trial court concluded that

          "[b]ecause petitioner has not consistently claimed that he was tortured into making a

          confession, this actual innocence claim must fail." (Emphasis in original.) The trial court

          also found that Ballard was not a competent witness because he did not witness the shooting.



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¶ 39         Whirl appealed the denial of his motion for leave to file a successive postconviction

          petition on May 11, 2011, and this court docketed the appeal under case No. 1-11-1483. On

          May 25, 2012, this court granted Whirl's motion to stay his appeal.

¶ 40         Whirl filed a second pro se motion for leave to file a successive postconviction petition

          on January 12, 2012. In an affidavit attached to the petition, Whirl attested that he did not

          have his 1991 suppression hearing transcript at the time of filing his first successive

          postconviction petition. The transcript of the hearing would have provided the trial court

          with evidence that Whirl did, in fact, previously claim that he was tortured and his confession

          was coerced.

¶ 41         In his second successive postconviction petition, Whirl contended he received ineffective

          assistance of counsel, asserting that counsel (1) advised Whirl to plead guilty because the

          State was seeking the death penalty, and (2) failed to call witnesses who would have

          corroborated his initial statement that he was not involved in the murder. Two individuals

          would have verified Whirl was dropped off at 102nd Street and Forest Avenue, where one of

          those individuals treated the injury Whirl sustained when he scraped his leg on the "el"

          platform. In addition, two cab drivers told the police they saw the victim picking up another

          "fare" (described by one witness as two black males) at 95th Street and State Street after

          Whirl had been dropped off at 102nd and Forest.

¶ 42         Whirl attached copies of the police report to his petition. Willie Curtis, an investigator

          for the Cook County Public Defender's Office, told police he saw Williams picking up a fare

          in the vicinity of the Dan Ryan Rapid Transit Terminal between 9:45 and 10 p.m. on April

          18. He could only see one person in the cab as it drove off, but was sure it was Williams

          because he was able to remember the cab number. Lee Kelsey, an independent cab driver,

          told police that he observed Williams picking up a white male passenger in the vicinity of the

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          CTA Terminal around 9 p.m. on April 18.               Williams returned to the terminal at

          approximately 10 p.m. and Kelsey observed two male blacks, between the ages of 20 and 30,

          average height, and wearing short jackets, get into the cab. Williams then drove east on 95th

          Street.

¶ 43          Whirl contended that these witnesses supported his initial statement to Duffy that he was

          dropped off at 102nd and Forest at approximately 9:30 p.m. The police report also confirms

          that Lavina Crawford, Tanya's mother, informed police that Whirl came to her house at

          102nd and Forest in the "evening hours" of April 18 and went downstairs to see Fontaine

          McElrath, who lived in the basement. McElrath confirmed that Whirl had an injured leg on

          April 18. McElrath cleaned the wound on Whirl's leg. The statements of these individuals

          were also consistent with Whirl's initial statement to Duffy.

¶ 44          Whirl filed a motion for leave to amend his petition on February 7, 2012. Counsel from

          both People's Law Office and The Exoneration Project at the University of Chicago Law

          School later filed appearances on Whirl's behalf.

¶ 45          On June 13, 2012, the Illinois Torture Inquiry and Relief Commission (Commission),

          which is empowered by the TIRC Act (775 ILCS 40/1 et seq. (West 2012)) to formally

          inquire into the cases of individuals claiming their confessions were the product of police

          torture, issued a disposition in Whirl's case.         The Commission found that "by a

          preponderance of the evidence, there is sufficient evidence of torture to conclude [Whirl's]

          Claim is credible and merits judicial review for appropriate relief."

¶ 46          The Commission noted that although Jon Burge had been reassigned to Area 3 at the time

          of Whirl's arrest, Whirl was questioned by Pienta, "a longtime Burge subordinate prior to

          Burge's reassignment."     The Commission found that Whirl was repeatedly slapped and



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          beaten by Pienta during questioning, and that when Whirl screamed, Pienta put a potato chip

          bag over his mouth so the screams could not be heard. The Commission further found that

          every time Whirl made a mistake in repeating the statement Pienta told him to give, Pienta

          would use a key to dig into a preexisting leg wound. The Commission noted that Howard,

          who the prosecution conceded was a credible witness, observed a raw sore on Whirl's leg

          shortly after his statement and the parties stipulated that a doctor treated Whirl's leg when he

          was processed into the jail.

¶ 47         The Commission also noted that Pienta, who had been working under Burge since the

          1970s, had an extensive history of accusations of physical abuse and exercised his fifth

          amendment privilege against self-incrimination when questioned about physically abusing

          detainees. Moreover, without the confession, the State's case against Whirl was weak. There

          were no eyewitnesses, the murder weapon was never recovered, and the only forensic

          evidence was a fingerprint found on the front passenger door of the cab, which Whirl never

          mentioned touching in his statement. The Commission found that the statement contained

          internal anomalies and there were inconsistencies between the statement and other evidence

          in the case. Notably, Whirl, who had no criminal record, was employed as a computer

          operator and was living at his mother's address so he had no need for rent money, the

          purported motive for the robbery according to the statement.

¶ 48          The Commission concluded that Whirl's claim qualified for summary referral for judicial

          review because (1) Whirl consistently claimed he had been tortured since his motion to

          suppress in 1991; (2) Whirl's claim was factually similar to other claims of torture contained

          in reports detailing investigations into Burge and police officers under his command; (3)

          Pienta, the accused officer, was identified in other cases alleging torture, including some

          strikingly similar to Whirl's claim; and (4) Whirl's claim was consistent with findings of

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          systematic and methodical torture at Area 2 under Burge. In addition, the other available

          evidence set forth in the report indicated that the claim was credible and merited judicial

          review.

¶ 49         Following the Commission's disposition, on August 29, 2012, the trial court revisited its

          denial of leave to file a successive postconviction petition, and granted Whirl's motion for

          leave to file the petition. On September 13, 2012, Whirl requested the appointment of a

          special prosecutor for his case. The motion was granted and, on May 7, 2013, Stuart

          Nudelman, a retired judge, was appointed as the special prosecutor in Whirl's case.

¶ 50         On May 9, 2013, counsel for Whirl filed a 52-page amended combined petition for relief

          pursuant to the Postconviction Act (725 ILCS 5/122-1 et seq. (West 2012)), section 2-1401

          of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), and the TIRC Act (775

          ILCS 40/1 et seq. (West 2012)). The torture allegations in the amended petition mirrored

          Whirl's testimony at the motion to suppress with one exception. The petition included the

          additional allegation that during the course of Pienta's abuse, Pienta "shoved a plastic potato

          chip bag against [Whirl's] mouth to muffle his screams." The petition detailed newly

          discovered evidence regarding the pattern and practice of coercing false confessions by Area

          2 detectives, including Pienta, and alleged that the detectives continued the torture and abuse

          of suspects to obtain confessions after Burge left Area 2. The amended petition did not

          include the ineffective assistance and actual innocence claims from Whirl's pro se petition.

¶ 51         The State filed a motion to dismiss, in part, the section 2-1401 and Postconviction Act

          claims. The State conceded that the judicial review contemplated under the TIRC Act is akin

          to a third-stage evidentiary hearing under the Postconviction Act. But the State objected to

          the introduction of any evidence at such a hearing related to Burge or any other officer not

          alleged to have abused Whirl, and reserved its right to argue that the Commission exceeded

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          its authority by recommending Whirl's case for judicial review because Pienta was not

          working under Burge at the time the alleged torture occurred.

¶ 52          On November 7, 2013, the trial court granted the motion to dismiss as to the section 2-

          1401 claims but denied it as to the postconviction claims, finding that Whirl was entitled to a

          third-stage evidentiary hearing. On January 13 and 14, 2014, a combined hearing was held

          pursuant to the Postconviction Act and the TIRC Act.

¶ 53         At the hearing, Whirl testified that he was arrested sometime between 12:30 and 1 p.m.

          on April 20, 1990, while he was making a telephone call from a pay phone to the police to

          find out why they were looking for him. Whirl's testimony regarding his treatment at Area 2,

          with certain exceptions we discuss below, was substantially similar to his testimony in 1990

          at the hearing on his motion to suppress, i.e., the initial interview by Duffy, the later

          interviews with Pienta and the taking of his statement.

¶ 54         Whirl's testimony regarding his initial interactions with Pienta was substantially the same

          as the testimony at his suppression hearing. Because Whirl provided additional details and

          explanations regarding the statement, we will recount his testimony on that issue in detail.

¶ 55         Whirl testified that Pienta began adding to the statement Whirl had originally given to

          Duffy. When Whirl told Pienta that was not what happened, Pienta slapped him. As Whirl

          continued to deny any involvement in the murder, Pienta continued to slap him in the same

          place on his left cheek. Whirl could not shield the blows because both of his hands were

          handcuffed, so he lifted his left leg up on the bench he was seated on. Pienta noticed an

          injury on Whirl's leg and asked him how he got it. Whirl explained to Pienta how some gang

          members tried to rob him and he scraped his leg when he fell off the "el" platform.




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¶ 56         Pienta told Whirl to put his leg down on the floor. After Whirl complied, Pienta stepped

          on Whirl's foot, took a key out, and scraped the injury with the key in a downward motion.

          Because it was painful, Whirl said, "Aaah." Pienta said, "Shut up, nigger. You're going to

          cooperate. You're going to listen," and he continued scraping Whirl's injury with the key.

          Because it seemed as if the scraping intensified when he cried out in pain, Whirl thought that

          maybe if he tried to grit his teeth and stop yelling, Pienta would stop scraping his injury.

          After two more scrapes with the key when Whirl did not make a sound, Pienta asked, "Well,

          are you going to agree with me?" Whirl said yes because he could not take the pain any

          more. Whirl could not remember the total number of times his injury was scraped with the

          key but estimated that it was between 20 and 30 times.

¶ 57         Pienta continued to add details to Whirl's original confession, implicating Whirl in the

          murder, and repeatedly went over the statement with Whirl. When Whirl would forget

          certain things Pienta had told him to say, Pienta would slap him and scrape his leg injury

          with the key again. When Pienta was finally satisfied that Whirl had the statement correct,

          he left the room.

¶ 58         After the assistant State's Attorney came into the room, asked Whirl how he was doing,

          and left again, Pienta returned with a bag of potato chips and a can of pop. Pienta went over

          the statement with Whirl again, but when Whirl continued to confuse details in the statement,

          Pienta became frustrated and took the bag of chips and shoved it in Whirl's face in a

          disrespectful way.

¶ 59         Once Whirl finally got the statement right, Whirl was taken into another room where the

          assistant State's Attorney, another detective and a court reporter were waiting. As Whirl was

          giving his statement to the assistant State's Attorney, he would forget minor details. Pienta,

          who was sitting next to the assistant State's Attorney, would make hand gestures to remind

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          Whirl of the statement details. Whirl gave the statement because he was afraid that if he did

          not, Pienta would slap him and scrape his injury with the key again. After Whirl gave his

          statement, he was taken downstairs and put in a cell.

¶ 60         A short time later, Whirl was taken to the visiting area to see Howard, his brother. He

          was limping as he walked into the room. Howard first asked why he did not have any

          shoelaces and then asked why Whirl was limping and told Whirl to show Howard his leg.

          Whirl told Howard the detective had taken a key and scraped his leg, and that they "beat the

          hell out of [him]."

¶ 61         After Whirl was taken to the Cook County jail, he told a nurse about the injury to his leg

          and she sent him to a doctor. The doctor examined the injury and instructed the nurse to

          wash it out with some brown ointment and put a dressing on it.                Whirl's attorney

          subsequently visited him in jail with a photographer who took pictures of Whirl's injury.

          Whirl explained that at the time he was arrested, the injury was just a scrape but after he left

          the police station, the wound was about four inches long, deep, and filled with pus. The

          injury left a permanent scar.

¶ 62         Whirl explained that the reason he agreed to plead guilty is because after his motion to

          suppress the statement was denied, his attorney told him that his options were the death

          penalty or 60 years in prison and he chose the 60 years.

¶ 63         On cross-examination, Whirl was asked to explain the fight with the three gang members

          in detail. After describing the fight during which Whirl fell from the "el" platform down

          onto the tracks, scraping his leg on the way down, Whirl explained how he jumped back onto

          the platform, got on the train, and ran through the cars to get away from the three men he had

          been fighting. When the train got to 95th and State, Whirl exited the train, ran through the



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          terminal, jumped over a divider, and hid behind a cab, looking for the men who were chasing

          him. The cab driver, who Whirl later learned was Williams, knocked on the window and

          gestured to Whirl. Whirl stood up and the men who had been chasing him saw him and came

          toward the cab. Williams drove Whirl to Tanya's mother's house at 102nd and Forest where

          Whirl went inside.

¶ 64         Whirl was then asked about his activities on April 19. Whirl and Tanya were watching

          TV and saw a news report about Williams being murdered the night before. After an initial

          denial, Whirl confirmed that in a petition for clemency he prepared and sent to the governor

          in 2011, he stated that he said to Tanya, "I hope that the police don't try to pin that murder on

          me."

¶ 65         On redirect, Whirl explained that earlier that day he had been told by his mother and a

          janitor at their apartment building that the police were looking for him and had left a business

          card. Whirl did not understand why the police would be looking for him because the police

          had never come looking for him before. Whirl took the business card, intending to call the

          police later and find out why they were looking for him. When Whirl saw the news story

          about the cab driver's murder, because he had taken a cab the night before and was already

          wondering why the police would be looking for him, he made the connection and that is why

          he made the statement to Tanya that he hoped the police did not try to pin that murder on

          him.

¶ 66         Howard testified that at the time of the suppression hearing, he was in the military. He

          received a phone call from another brother sometime late in the day on April 20 and learned

          that Whirl had been arrested. Howard went to the jail to visit Whirl. When Whirl entered the

          visiting room, Howard noticed he did not have shoelaces and was not wearing a belt. The

          two of them joked about the shoelaces and when Whirl raised his leg in the air, Howard

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          noticed an injury on Whirl's leg and asked him about it. The injury was approximately four

          inches long and was red and not scabbed over. Whirl told Howard that he had been chased

          by some "gangbangers" onto the "el" and scraped his leg when he slipped off the platform.

          Whirl also told Howard that the police had scraped his injury with a key.

¶ 67         Anthony Holmes and Mearon Diggins both testified that they were tortured by detectives

          at Area 2 until they confessed. Holmes was tortured in 1973 and Diggins in 1985. Holmes

          was arrested by Pienta, Burge and several other officers and was suffocated and electrically

          shocked during his interrogation. The officers who arrested him were also present for the

          interrogation. Diggins identified Pienta as one of the detectives who arrested him and was

          present while he was being tortured but could not say for sure whether Pienta had ever beaten

          him during those two days or if he was just in the room while the beatings were taking place.

¶ 68         Pienta was called as a witness and asked whether he participated in the torture of Holmes,

          Diggins, Andrew Wilson, Terry Williams, Aaron Patterson, Eric Caine, James Hill, Terrence

          Houston, Darryl Cleveland, and, finally, Whirl. Pienta was also asked whether incidents of

          police brutality and torture continued after Burge left Area 2 in 1986. Pienta invoked his

          fifth amendment right to remain silent in response to all questions. The parties stipulated that

          if Marley, Burge, John Paladino, Raymond Madigan and William Pederson were called as

          witnesses, they would each invoke their fifth amendment rights.

¶ 69         The trial court was also provided with exhibits containing prior testimony of Whirl's

          mother, Crawford, Caine, Patterson, Houston, Dwyer, Duffy, Stevenson, and Detective Peter

          Dignan. Some of this testimony was presented at Whirl's suppression hearing while other

          witnesses testified in their own cases or as part of Burge's trial. The exhibits attached to

          Whirl's combined petition were also moved into evidence.



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¶ 70         On February 13, 2014, Whirl's combined petition for relief pursuant to the Postconviction

          Act and the TIRC Act was denied. Although the trial court acknowledged that Whirl

          consistently claimed he was tortured, his claims were notably similar to other claims of

          torture, and Whirl's allegations were consistent with findings of systemic and methodical

          torture at Area 2 under Burge, the court found the allegations of other instances of torture at

          Area 2 were too remote. In addition, the trial court found that Whirl was not credible and

          was impeached on "many issues," including his statement that he could not read, his denial

          that he told Tanya he hoped the police would not try to "pin" the murder on him, his

          conflicting statements regarding the potato chip bag and whether Marley was in the room,

          and testimony regarding the wound itself. The trial court ultimately found that Whirl did not

          establish that he was abused or tortured by Pienta and, therefore, his remaining claims also

          failed. Whirl timely filed this appeal.

¶ 71                                                ANALYSIS

¶ 72         The Postconviction Act (725 ILCS 5/122-1 et seq. (West 2012)) provides a procedural

          mechanism by which any person imprisoned in the penitentiary may assert that there was a

          substantial denial of a federal or state constitutional right in the proceeding which resulted in

          his or her conviction. 725 ILCS 5/122-1(a) (West 2012); People v. Harris, 224 Ill. 2d 115,

          124 (2007). A proceeding under the Act is not a substitute for an appeal but rather a

          collateral attack on a final judgment. People v. Edwards, 2012 IL 111711, ¶ 21.

¶ 73         Postconviction proceedings consist of up to three stages. People v. Pendleton, 223 Ill. 2d

          458, 471-72 (2006). At the first stage, the circuit court is required to dismiss petitions that

          are frivolous and patently without merit. Harris, 224 Ill. 2d at 126. A petition must present

          "the gist of a constitutional claim" to survive beyond the first stage. Id. At stage two, the



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          circuit court may appoint counsel for the defendant and the State may move to dismiss the

          petition. Id.

¶ 74         At the second stage, the relevant inquiry is whether the petition establishes a substantial

          showing of a constitutional violation. Id. If the petition survives a motion to dismiss, it

          proceeds to the third stage where the circuit court conducts an evidentiary hearing. Id. At

          both the second and third stages of postconviction proceedings, the defendant bears the

          burden of making a substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d

          at 473. The circuit court does not engage in fact-finding or credibility determinations at the

          dismissal stage; rather, such determinations are made at the evidentiary stage. People v.

          Coleman, 183 Ill. 2d 366, 385 (1998).

¶ 75         The Act contemplates the filing of only one postconviction petition; however, a

          successive petition is allowed where the petitioner demonstrates cause for the failure to bring

          the claim in the initial petition and prejudice resulting from that failure. 725 ILCS 5/122-1(f)

          (West 2012); People v. Ortiz, 235 Ill. 2d 319, 330 (2009). Moreover, where a petitioner sets

          forth a claim of actual innocence in a successive postconviction petition, the petitioner is

          excused from showing cause and prejudice. Id.

¶ 76         We will not reverse a trial court's denial of a postconviction petition following an

          evidentiary hearing where fact-finding and credibility determinations are made unless the

          court's findings are manifestly erroneous. Id. at 333; Pendleton, 223 Ill. 2d at 473. Manifest

          error is "error which is clearly evident, plain, and indisputable." (Internal quotation marks

          omitted.) Ortiz, 235 Ill. 2d at 333 (quoting People v. Morgan, 212 Ill. 2d 148, 155 (2004)).

          "[A] decision is manifestly erroneous when the opposite conclusion is clearly evident."

          People v. Coleman, 2013 IL 113307, ¶ 98.



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¶ 77            As an initial matter, we note that although this is a consolidated appeal and a stay was

          granted in the appeal this court docketed under case No. 1-11-1483, we agree with the State

          that the trial court's initial denial of leave to file a successive postconviction petition is now

          moot. Whirl makes no arguments regarding this issue on appeal and the trial court ultimately

          granted leave to file a successive petition and acknowledged that, contrary to the reason

          given for initially denying leave, Whirl has consistently claimed that his confession was

          coerced. Therefore, we dismiss appeal No. 1-11-1483 as moot.

¶ 78            In appeal No. 14-0801, Whirl contends that the trial court's denial of relief was

          manifestly erroneous because the trial court applied the wrong legal standard, improperly

          disregarded the pattern of abusive tactics in which Pienta participated, and failed to draw the

          appropriate negative inference from the fact that every police officer with relevant evidence

          chose to exercise his fifth amendment rights rather than testify at the evidentiary hearing. All

          of these arguments relate to the denial of Whirl's successive postconviction petition

          following an evidentiary hearing.

¶ 79            In a postconviction hearing, the petitioner must show a denial of a constitutional right by

          a preponderance of the evidence. Id. ¶ 92. In the context of an actual innocence claim

          pursuant to which a defendant seeks a new trial, the trial court neither decides the ultimate

          issue of the defendant's guilt nor determines whether the State's evidence is sufficient to

          convict beyond a reasonable doubt. Id. ¶ 97. Otherwise, the remedy would be an acquittal,

          not a new trial. Id. "Probability, not certainty, is the key as the trial court in effect predicts

          what another jury would likely do, considering all the evidence, both new and old, together."

          Id.

¶ 80            Similarly, in the context of a claim that newly discovered evidence would have likely

          altered the outcome of a suppression hearing, the purpose of an evidentiary hearing is not for

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          the trial court to determine the ultimate issue of whether a confession was coerced. As

          Justice McMorrow noted in her dissent in People v. Maxwell, 173 Ill. 2d 102, 149 (1996)

          (McMorrow, J., dissenting), the issue at this stage of postconviction proceedings is not

          whether the confession itself was voluntary but whether the outcome of the suppression

          hearing likely would have differed if the officer who denied harming the defendant had been

          subject to impeachment based on evidence revealing a pattern of abusive tactics employed by

          that officer in the interrogation of other suspects. In People v. Patterson, 192 Ill. 2d 93, 145

          (2000), our supreme court reaffirmed the trial court's role in this context when it remanded

          the case for a third-stage evidentiary hearing on a torture claim. At the hearing, the trial

          court was instructed to determine whether "(1) any of the officers who interrogated defendant

          may have participated in systemic and methodical interrogation abuse present at Area 2 and

          (2) those officers' credibility at the suppression hearing might have been impeached as a

          result." Id.

¶ 81          With these principles in mind, we consider the trial court's comments at the close of the

          evidentiary hearing. The trial court first stated that the central issue in the case was whether

          "Pienta in fact tortured Mr. Whirl and coerced his confession." The court acknowledged that

          Whirl had not presented new evidence of the torture itself, but concluded that the new

          evidence regarding Pienta's history of participation in torture was too remote. After turning

          to the facts of the case and detailing its credibility findings, the court stated:

                         "It is my finding that [Whirl] needed to be credible in order to sustain his burden

                  in the case. He was not credible. And it is my finding also after looking very closely

                  at the other issues, *** in fact, that he did not establish that he was abused or tortured

                  by Detective Pienta."



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¶ 82          We note that on the basis of the remarks related to whether Whirl had established torture,

          the trial court appears to have used the incorrect standard for third-stage postconviction

          proceedings. It was not the trial court's role to determine whether Whirl's confession was, in

          fact, coerced. But because the trial court also made findings related to the new evidence, and

          its comments regarding credibility could also be interpreted to relate to those findings, we

          will examine all of the trial court's findings in detail.

¶ 83          We first address the trial court's credibility findings. As an initial observation, despite the

          well-settled principle that a trial court's credibility determinations are entitled to deference,

          the credibility findings at issue here are not related to new witnesses who have come forward

          and are presenting testimony for the first time, nor is this a situation in which the defendant is

          providing new testimony that substantively contradicts previous testimony and credibility

          determinations are therefore critical to the issue that must be determined at an evidentiary

          hearing. Rather, the trial court's credibility findings here relate to two witnesses: Whirl and,

          to a lesser extent, Howard, who provided essentially the same testimony they gave at the

          suppression hearing more than 20 years ago.

¶ 84          Whirl's testimony, both at the suppression hearing and the postconviction hearing, was

          that Pienta tortured him by slapping him and scraping a key into an existing injury until he

          confessed. This testimony is not new evidence that Whirl produced for the first time in his

          successive petition and at the evidentiary hearing. Therefore, the fact that some of the details

          of his testimony are slightly different now has marginal relevance to the central issue at the

          evidentiary hearing, i.e., whether the new evidence of a pattern and practice of abusive tactics

          employed by Pienta, had it been presented at the suppression hearing, would likely have

          produced a different outcome. Thus, we disagree with the trial court's finding that Whirl

          "needed to be credible in order to sustain his burden in this case."

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¶ 85         However, to the extent the trial court is allowed to consider the old evidence with the new

          in determining whether the outcome of the suppression hearing would likely have been

          different, we will briefly address the trial court's findings regarding Whirl's credibility. The

          issues raised by the trial court involved Whirl's statement that he could not read, his denial

          that he told Tanya he hoped the police would not try to "pin" Williams' murder on him, and

          his conflicting statements regarding (1) the potato chip bag, (2) whether Pienta came into the

          room alone, and (3) whether he was bleeding after Pienta scraped his wound with the key.

          Finally, the trial court found that there was impeachment regarding the wound itself based on

          the testimony of both Whirl and Howard.

¶ 86         The first two findings are not supported by the record. Whirl explained that he could not

          read the statement because he did not have his glasses. Whirl never claimed to be illiterate.

          It is also clear from the record that Whirl initially denied telling Tanya that he hoped the

          police would not try to "pin" the murder on him because he wanted to be able to explain the

          circumstances surrounding the comment, something he was able to do when questioned by

          his own attorney.

¶ 87         We do not find the statements related to the potato chip bag to be relevant to Whirl's

          allegations of torture. Whether Whirl initially forgot about the bag or later remembered it but

          did not remember exactly how it had been used or, in the alternative, even if the potato chip

          bag was never used in any way and Whirl simply invented that detail and changed it over

          time, his statements about the bag in no way added to or detracted from his consistent

          allegations that Pienta abused him by slapping him and scraping the wound on his leg with a

          key. Therefore, we do not see how the trial court's concerns regarding this testimony factor

          into the ultimate issue of whether the outcome of the suppression hearing would likely have



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          been different had the new evidence regarding Pienta's pattern of torture and abuse been

          introduced.

¶ 88         Similarly, we do not believe that Whirl's conflicting statements regarding whether Pienta

          entered the room alone or was accompanied by Marley would have any impact on the

          probable outcome of the hearing. Whirl has never made any allegations related to Marley but

          has consistently focused on Pienta's actions. Inconsistent statements related to Marley's

          presence would therefore have no relevance to the issue of whether subjecting Pienta to

          impeachment with evidence of his use of abusive tactics would likely have produced a

          different outcome.

¶ 89         Finally, we do not consider the fact that Whirl thought he was wearing red pants during

          his interrogation (when a photograph shows him wearing dark pants and a red shirt) and

          could not remember whether the wound was bleeding dispositive. The injury itself was

          established by independent evidence at the suppression hearing. Again, it was not the trial

          court's role to determine whether Whirl had, in fact, been coerced into making a confession.

          We are not persuaded that the credibility issues in Whirl's testimony identified by the trial

          court make it less likely that the outcome of the suppression hearing would have been

          different had Whirl presented evidence of Pienta's pattern and practice of using coercive

          tactics to obtain confessions.

¶ 90         In summarizing the facts of the case that led to its conclusion that Whirl was not credible,

          the trial court noted that Whirl pled guilty and that there was no question that his plea in open

          court was free and voluntary. Yet the record indicates that not only has Whirl consistently

          claimed his confession was coerced and he had nothing to do with the murder, but he also

          very nearly sabotaged any chance of a plea deal and was almost forced to go to trial with no



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          preparation on a capital murder charge by continuing to profess his innocence even after he

          pled guilty.

¶ 91         The record demonstrates that while Whirl's plea was voluntary in that he chose to accept

          a 60-year sentence as opposed to a possible death penalty, he continued to profess his

          innocence. The trial court noted that it had never before encountered a situation where a

          defendant spontaneously informed the court that he did not commit the crime immediately

          after the court had accepted a guilty plea and announced the sentence.                Multiple

          adjournments were required while Whirl's attorney attempted to convince Whirl that pleading

          guilty was his best option after losing the motion to suppress.

¶ 92         Ultimately, Whirl's attorney was only able to salvage the plea deal by convincing Whirl

          to tell the court that he claimed not to have committed the murder only because he was afraid

          of doing time in the penitentiary. Moreover, the fact that Whirl pled guilty after the motion

          to suppress was denied has no bearing on the issue of whether the outcome of the suppression

          hearing would likely have been different had the new evidence been presented.

¶ 93         We further note that the trial court's findings regarding impeachment on the issue of the

          actual wound are not only irrelevant to the determination the trial court needed to make at the

          evidentiary hearing but are also belied by the record.       Whirl did not present any new

          evidence on the wound at the evidentiary hearing.          Rather, the injury was previously

          established at the suppression hearing.     Unfortunately, it appears that the photographic

          evidence available at the time has now been lost, but that evidence is documented in the

          record through the testimony of witnesses at the suppression hearing.

¶ 94         Howard, who even the State conceded at the suppression hearing was a credible witness,

          testified that immediately after the interrogation, Whirl's wound was raw and just starting to



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       Nos. 1-11-1483 & 1-14-0801, cons.

          clot, in contrast to the photograph taken at a later point in time that showed scabbing. Whirl's

          mother also viewed the photograph and said that the wound in the photograph was wider than

          the injury she had seen prior to the time Whirl was taken into custody. Most importantly, the

          parties stipulated that a doctor prescribed a dressing for a wound on Whirl's leg after he was

          processed into the jail, treatment that would have been unnecessary unless the wound on

          Whirl's leg had been reopened during the time he was in custody.

¶ 95         Despite the trial court's finding on the original motion to suppress, the record shows that

          the State did not produce any evidence to indicate that the injury established by this evidence

          was inflicted by someone other than Pienta. See Maxwell, 173 Ill. 2d at 121 (citing People v.

          Wilson, 116 Ill. 2d 29, 40 (1987)); People v. Woods, 184 Ill. 2d 130, 146 (1998) (where it is

          evident that a defendant received injuries while in police custody and the only question is

          how and why the injuries were sustained, the State is held to the higher standard of

          establishing, by clear and convincing evidence, that such injuries were not inflicted by police

          officers to induce the defendant's confession).

¶ 96         In fact, testimony by two police officers at the hearing on the motion to suppress provides

          additional support for Whirl's claim that the original injury was aggravated during his

          interrogation. Duffy testified that when he interviewed Whirl shortly after his arrest, the

          injury was not bleeding but was scabbed over and healing. Pienta also initially testified that

          it was an "older injury" that was scabbed over and healing. Even after Pienta eventually

          acknowledged on cross-examination that the injury was only a few days old, he continued to

          maintain that it was scabbed over and healing at the time of the interview. Thus, in light of

          the testimony that immediately after the interrogation the injury was raw and just starting to

          clot, and the medical evidence that a dressing was prescribed for the wound, something that



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       Nos. 1-11-1483 & 1-14-0801, cons.

          would not have been necessary had the wound indeed been scabbed over and healing as both

          detectives testified, the injury itself was definitively established at the suppression hearing.

¶ 97         Because evidence of the wound was not new evidence, it also had marginal relevance to

          the trial court's determination at the evidentiary hearing on the ultimate issue of whether the

          new evidence of a pattern and practice of abusive tactics employed by Pienta, if presented at

          the suppression hearing, would have likely produced a different outcome. To the extent that

          the trial court believed that minor discrepancies in the testimony regarding the wound meant

          the outcome would not likely have been different even in light of the new evidence, we

          conclude the record establishes the opposite conclusion.

¶ 98         We now address the trial court's findings regarding the new evidence.                The court

          acknowledged the pervasive evidence that Burge and many of the officers working under

          him regularly engaged in the physical abuse and torture of suspects with the goal of

          extracting confessions. The trial court further acknowledged that Whirl's claims of torture

          were strikingly similar to other claims, the officer involved was identified in other allegations

          of torture, and Whirl's allegations were consistent with the findings of systemic and

          methodical torture at Area 2 under Burge.

¶ 99         But in explaining its finding that the evidence regarding Pienta was too remote, the trial

          court stated:

                     "It is clear from those allegations that though [Pienta] is involved in many of the

                 cases, he is not the central figure in those torture allegations. In many of the cases he

                 was the person arresting and transporting individuals who became – who were then

                 tortured by Burge and others.         And I'm not downplaying that of course, that




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        Nos. 1-11-1483 & 1-14-0801, cons.

                  involvement. It is true that he is involved in cases but typically he is not the central

                  figure, much less is he acting alone as he is alleged to have done here by Mr. Whirl."

           The trial court also noted that Burge was no longer at Area 2 at the time of Whirl's arrest,

           having been reassigned to Area 3 several years earlier.

¶ 100         Although the most recent torture allegation cited by Whirl occurred in 1986, four years

           prior to his arrest, our supreme court has noted that a series of incidents spanning several

           years can be relevant to establishing a pattern and practice of torture. Patterson, 192 Ill. 2d

           at 140. This court has held that incidents spanning several years in which the most recent

           was five years prior to the defendant's arrest were relevant and admissible. People v. Reyes,

           369 Ill. App. 3d 1, 19 (2006). We agree with Whirl that the new evidence establishes a

           pattern and practice of abuse that is not too remote in terms of years.

¶ 101         But the record does not support the trial court's conclusions regarding remoteness related

           to the extent of Pienta's involvement in other torture cases. Pienta took a lead role in the

           torture of Patterson in April 1986. See Patterson, 192 Ill. 2d at 116-17 (Pienta entered the

           interview room with four other officers, said he did not know about the rest of them but he

           was "about ready to kick [Patterson's] ass," handcuffed Patterson's hands behind his back,

           slapped Patterson in the chest, and put his hands around Patterson's neck). Pienta was one of

           the detectives who arrested Caine, Patterson's codefendant, participated in Caine's

           interrogation, and hit Caine in the chest and threatened him with the same treatment that had

           been inflicted on Patterson. Pienta was also identified as one of the officers involved in the

           torture of Wilson in 1982, which involved punching, kicking, suffocation, electric shocks,

           and being burned on a radiator. Id. at 118. Finally, Houston was arrested in October 1986

           and was struck in the face and stomach by Pienta during his interrogation before he was

           released without being charged.

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        Nos. 1-11-1483 & 1-14-0801, cons.

¶ 102         Apart from torture cases in which Pienta took an active role, the evidence establishes that

           Pienta was identified as being present in numerous cases involving torture. Contrary to the

           trial court's assertion, Pienta was not merely the arresting officer but was also, at the very

           least, present during interviews where suspects were tortured and abused and was one of

           several detectives working with Burge who routinely engaged in using force to obtain

           confessions. Our supreme court noted that in the evidence provided by Patterson in his

           postconviction proceedings, Pienta was identified in five torture cases involving suffocation

           and/or beatings while under Burge's supervision. Id. at 142. Pienta was present for the

           interrogations of both Holmes (1973) and Diggins (1985). Pienta was involved in not just the

           arrests but also the interrogations of Michael Coleman and Derrick King (1980), both of

           whom were beaten until they eventually confessed.          Finally, although Cleveland was

           eventually released with no charges, Pienta was present for Cleveland's interrogation in

           October 1986, during which Cleveland alleged that his interrogators slammed his head

           against a table. We believe all of this evidence supports a finding that Pienta was directly

           involved in a pattern of torture at Area 2.

¶ 103         But even if the new evidence established only that Pienta stood by and did nothing while

           other officers committed acts of torture and abuse, silent acceptance is still relevant to the

           issue of whether Pienta's credibility may have been impeached as a result of this evidence.

           See People v. Jakes, 2013 IL App (1st) 113057, ¶ 32 (holding that the silent acceptance by

           one officer of a crime committed by a fellow officer is relevant to the first officer's

           credibility). Thus, the evidence presented at the evidentiary hearing was more than sufficient

           to establish a pattern and practice of torture and abusive tactics by Pienta and is not, as the

           trial court concluded, too remote.



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        Nos. 1-11-1483 & 1-14-0801, cons.

¶ 104         We also disagree with the significance placed by the trial court on the fact that Burge was

           no longer at Area 2 at the time of Whirl's arrest. The evidence clearly establishes a long

           history, going back to at least 1973, of Pienta's involvement in abusing suspects in order to

           obtain confessions. The only evidence of change appears to be that the methods became less

           brutal over time and more care was taken to avoid causing detectable injuries. Pienta

           continued to work in violent crimes at Area 2 after Burge was transferred. There is no basis

           to assume Pienta's use of physical force to obtain confessions ceased simply because Burge

           was transferred to Area 3 while Pienta remained at Area 2. Indeed, the allegations related to

           Houston and Cleveland arose after Burge left Area 2. And, as Whirl points out, Burge's

           transfer to Area 3 was a promotion and, thus, his departure would not dissuade officers like

           Pienta from continuing to "solve" cases by means of coerced confessions.

¶ 105         Pienta was again given the opportunity to rebut Whirl's allegations of torture at the

           evidentiary hearing. Instead, not only did he invoke his fifth amendment rights with regard

           to Whirl, he also invoked those rights regarding every other case in which he has been

           identified as a participant in torture and abuse over the course of nearly two decades.

           Marley, who was present during Whirl's interrogation according to evidence adduced at the

           suppression hearing, also invoked his fifth amendment rights at the evidentiary hearing.

¶ 106         A postconviction proceeding, as a collateral attack on the judgment of conviction, is civil

           in nature. People v. Johnson, 191 Ill. 2d 257, 270 (2000). "It is the prevailing rule that the

           Fifth Amendment does not forbid adverse inferences against parties in civil actions when

           they refuse to testify in response to probative evidence offered against them." (Internal

           quotation marks omitted.) People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro

           Van, 177 Ill. 2d 314, 332 (1997) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)).



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        Nos. 1-11-1483 & 1-14-0801, cons.

¶ 107         We recognize that although a court may draw a negative inference from a party's refusal

           to testify, it is not required to do so. Yet given that the State produced no evidence to rebut

           the evidence of torture and abuse by Pienta, we believe Pienta's invocation of his fifth

           amendment rights is significant and a negative inference should have been drawn. Instead,

           when discussing the evidence that was presented at the suppression hearing, the trial court

           mentioned in passing that Pienta had taken the fifth amendment at the evidentiary hearing,

           but appeared to give more weight to the fact that the original judge had not found Whirl

           credible at the suppression hearing than to the fact that Pienta refused to testify at the

           evidentiary hearing.

¶ 108         In Coleman, our supreme court held that the new evidence provided at a third-stage

           evidentiary hearing, when weighed against the State's original evidence, was conclusive

           enough that another trier of fact would probably reach a different result and, therefore, the

           trial court's opposite conclusion was manifestly erroneous.      Coleman, 2013 IL 113307,

           ¶¶ 113-14. The record before us supports the same conclusion here.

¶ 109         Without Whirl's confession, the State's case was nonexistent. It consisted of fingerprints

           on the passenger door of a cab, a public conveyance that Whirl has never denied taking.

           There were no fingerprints recovered from inside the cab, even though, according to Whirl's

           statement, he reached forward after shooting Williams to put the cab in park. The murder

           weapon was never recovered, even though, again according to Whirl's statement, he

           discarded it in a public park a short distance from the scene of the murder. And there were

           no eyewitnesses to the murder.      Moreover, according to the police report, one witness

           observed two black males getting into the cab shortly before the murder. Finally, the State

           presented no evidence at the hearing to rebut Whirl's allegations of torture, and Pienta, who



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        Nos. 1-11-1483 & 1-14-0801, cons.

           testified at the suppression hearing, invoked his fifth amendment rights at the evidentiary

           hearing.

¶ 110         The new evidence presented at the postconviction hearing, when weighed against the

           State's original evidence, was conclusive enough that the outcome of the suppression hearing

           likely would have been different if Pienta had been subject to impeachment based on

           evidence of abusive tactics he employed in the interrogation of other suspects. Indeed, it is

           impossible to conceive of how the State could prevail at a new suppression hearing with the

           officer alleged to have coerced a suspect's confession invoking his privilege against self-

           incrimination.   Therefore, the trial court's conclusion was manifestly erroneous and we

           reverse and remand with directions that the guilty plea be vacated and Whirl receive a new

           suppression hearing and, if necessary, a trial.

¶ 111         Because we have determined that Whirl is entitled to a new suppression hearing under the

           Postconviction Act, we need not address Whirl's claim for the identical relief under the TIRC

           Act. Further, we need also not address Whirl's claim of a Brady violation as an additional

           basis for postconviction relief.

¶ 112                                            CONCLUSION

¶ 113         The trial court's denial of Whirl's successive postconviction petition was manifestly

           erroneous where (1) the trial court improperly decided the issue of whether Whirl's

           confession was, in fact, coerced, (2) the credibility findings made by the court were not

           relevant to the issue of whether Pienta's credibility at the suppression hearing might have

           been impeached as a result of the new evidence that Pienta participated in systematic abuse

           and torture, and (3) the new evidence together with Pienta's invocation of his fifth

           amendment rights, when weighed against the State's original evidence, was conclusive



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        Nos. 1-11-1483 & 1-14-0801, cons.

           enough that the outcome of the suppression hearing likely would have been different had that

           evidence been presented. We reverse and remand with directions that Whirl's guilty plea be

           vacated and Whirl receive a new suppression hearing and, if necessary, a trial.

¶ 114         No. 1-11-1483, appeal dismissed.

¶ 115         No. 1-14-0801, reversed and remanded with directions.




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