                                    2018 IL App (1st) 162177

                                                                            FIRST DISTRICT
                                                                            FOURTH DIVISION
                                                                            March 22, 2018


No. 1-16-2177

THE PEOPLE OF THE STATE OF ILLINOIS,                 )              Appeal from the
                                                     )              Circuit Court of
       Plaintiff-Appellee,                           )              Cook County.
                                                     )
v.                                                   )              No. 90 CR 3212
                                                     )
JAMES GIBSON,                                        )              Honorable
                                                     )              Neera Walsh,
       Defendant-Appellant.                          )              Judge Presiding.

       JUSTICE ELLIS delivered the judgment of the court, with opinion.
       Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.

                                            OPINION

¶1     Defendant James Gibson was convicted after a bench trial, and sentenced to life in prison,

for the 1989 murders of Lloyd Benjamin and Hunter Wash. By the trial judge’s own admission,

the key piece of evidence in the State’s case was an incriminating admission defendant made to

Area 3 detectives under the command of Jon Burge, in which defendant placed himself at the

scene of the murders. Though defendant would later claim that he was coerced into giving a false

statement after two days of physical abuse at the hands of the police, defendant made no serious

attempt to suppress that statement pre-trial, because his lawyer stated on the record that he

deemed the statement “exculpatory”—favorable, not hurtful, to defendant’s case—merely

because defendant had not outright confessed to the murder in the statement, admitting only to

being present at the scene. Counsel’s interpretation would prove quite ironic later, given that the

trial court found that statement to be anything but exculpatory—finding it, in fact, to be the

lynchpin of the prosecution’s case, “of extreme importance” to its finding of guilt.
No. 1-16-2177

¶2     In 2013, defendant filed a claim before the Torture Inquiry and Relief Commission

(TIRC), alleging that his statement was the product of physical abuse by Area 3 detectives. He

alleged, in particular, that several officers repeatedly punched and kicked him in the chest, and

burned his arm with a heated clothing iron. TIRC found credible evidence that defendant was

struck in the chest as he claimed—although it doubted his allegation that he was burned—and

referred his claim to the circuit court for an evidentiary hearing. The circuit court, at the post-

TIRC hearing, denied his claim after finding that defendant’s testimony was not credible.

¶3     Defendant raises a multitude of issues on appeal. We reverse and remand for further

proceedings based on one of them. At the hearing, two of the accused officers, former Sergeant

John Byrne and former Detective John Paladino, invoked their fifth-amendment rights against

self-incrimination. Believing that defendant’s allegations were rebutted by several other

detectives who testified, the circuit court declined to draw an adverse inference against Byrne or

Paladino.

¶4     While an adverse inference is permissive rather than mandatory, we think it can be error

not to draw one when there is no credible reason for refusing to do so. And here, certain of

defendant’s allegations against Paladino were not rebutted by any of the detectives’ testimony, or

by any other evidence in the record. Those allegations were also corroborated—not proven, but

corroborated—by defendant’s immediate complaint to the Chicago Police Department’s Office

of Professional Standards and by contemporaneous documentation of his injuries, which, a

forensic pathologist testified, were consistent with his allegations that Paladino and other officers

repeatedly punched and kicked him in the chest.

¶5     A law-enforcement officer’s refusal to answer these allegations under oath is not to be

taken lightly. The circuit court needed some defensible reason to refuse to draw an adverse


                                                -2­
No. 1-16-2177

inference. It did not have one. And that error, for reasons we will explain, could have changed

the outcome of the hearing.

¶6     In light of that conclusion, we do not reach the other issues defendant has raised. But in

the course of addressing the issue we find dispositive, we do address a question of law presented

by several disputed evidentiary rulings, since that question will necessarily recur at any

evidentiary hearing on a claim referred by TIRC. The question is: Do the Illinois Rules of

Evidence apply at these hearings? We hold that they are “postconviction hearings,” within the

meaning of Rule 1101, and that the Rules of Evidence therefore do not apply. See Ill. R. Evid.

1101(b)(3) (amended Apr. 8, 2013).



¶7                                    I. BACKGROUND

¶8     The victims, Benjamin and Wash, were shot and killed on December 22, 1989, while

leaving a garage on the southwest side of Chicago. Benjamin, an insurance agent, was on his

route collecting weekly premium payments. Benjamin’s cash, and other personal effects, were

found with his body, but the police suspected (attempted) robbery as the shooter’s motive. Wash,

a neighborhood mechanic who owned the garage, was a client of Benjamin’s.



¶9                                      A. Investigation

¶ 10   On December 27, 1989, acting on an anonymous tip, detectives from the Area 3 Violent

Crimes Unit detained defendant. The commanding officer of the unit at that time was Jon Burge.

Over the next three days, several of Burge’s subordinates interrogated defendant. According to

the police reports (which the circuit court admitted into evidence at the post-TIRC hearing),

those detectives included Anthony Maslanka, John Paladino, William Moser, Louis Caesar, John


                                              -3­
No. 1-16-2177

O’Mara, Phillip Collins, and John McCann. The supervising detective on the case was Sergeant

John Byrne.

¶ 11   Defendant did not confess to the murders. But on December 30, 1989, after three days in

police custody, he did admit that he was at Wash’s garage when the murders were committed. He

told the detectives that Eric Johnson (aka Keith Smith) handed a gun to a neighborhood drug

addict named Fernando Webb, who shot Benjamin and Wash as they exited the garage.

¶ 12   The detectives confronted Johnson and Webb, who were also being questioned at Area 3,

with defendant’s statement. Johnson admitted that he was present at the crime scene, but he said

that defendant shot Benjamin and Wash, while Webb acted as defendant’s lookout. Webb, who

had initially denied any knowledge of the murders, said that he passed by the garage, on his way

home from getting his heroin fix, and saw an unidentified black male standing near the door.

¶ 13   Assistant State’s Attorney (ASA) Lynda Peters interviewed the three suspects and

concluded that further corroboration was required before any charges could be filed. Defendant

was released from Area 3 and returned home on the evening of December 30, 1989.

¶ 14   The next day, on December 31, 1989, Johnson confessed to acting as a lookout while, he

now claimed, defendant shot the victims. Webb, for the first time, also named defendant as the

shooter. Johnson’s sisters implicated defendant in an alleged plan to rob Benjamin. Defendant

was arrested, without a warrant, later that day. He did not make any further statements after his

arrest. Defendant and Johnson were both charged with the murders.



¶ 15                                  B. Defendant’s Trial

¶ 16    Defendant’s trial counsel filed a boilerplate motion to suppress, alleging that defendant

was arrested without probable cause. Defendant filed a pro se supplemental motion to suppress.


                                              -4­
No. 1-16-2177

When the judge at defendant’s trial asked defense counsel to clarify what specific evidence fell

within the purview of the pretrial motions, counsel acknowledged that defendant “might” have

made a statement to the police, but it was an “exculpatory-type statement[ ],” and “not [an]

inculpatory statement[ ],” so it was not subject to suppression. The State likewise argued that

neither counsel’s motion nor defendant’s pro se motion sought to suppress his statement placing

himself at Wash’s garage, and counsel did not contest the State’s position.

¶ 17   Johnson, meanwhile, moved to suppress his confession on the ground that it was coerced

through physical abuse. At his suppression hearing, Johnson testified that after his December 29,

1989, arrest, detectives hit him in the face, chest, ribs, arms, and stomach; kicked him; used

racial slurs; and failed to Mirandize him. He ultimately signed a written statement that he did not

write or review because he “was tired of getting beat,” and the detectives told him he could go

home if he signed the statement. Because Johnson could not identify by name the detectives who

abused him, the State called Detectives Moser, Paladino, Maslanka, Collins, McCann, Caesar,

Jerome Rusnak, and Victor Breska; polygraph examiner Robert Tovar; and ASAs Peters and

Richard Correa—all of whom, in sum, denied having any knowledge of the alleged abuse. Based

on those denials, and Johnson’s failure to corroborate his claims with medical records or

photographs, the trial judge denied his motion.

¶ 18   Defendant and Johnson were tried separately. At defendant’s bench trial, the State’s case

rested on the testimony of Johnson’s sisters, Carla Smith and Janice Johnson; Webb; and

Detective Moser, who testified to defendant’s incriminating admission. The murder weapon was

never recovered, and there was no physical evidence linking defendant to the shootings. Because

Johnson did not testify, his statement implicating defendant as the shooter was not introduced.

Defendant did not take the stand.


                                               -5­
No. 1-16-2177

¶ 19   One of Johnson’s sisters, Carla, testified that on December 20, 1989, she was at home

with Johnson and defendant. Defendant said that he was “starving,” that his “car needed fixing,”

and that he “would have to stick up the insurance man” to get money. Defendant added that “if

[Benjamin] panicked” during the stick-up, he “would have to shoot him.” And on December 21,

1989, Carla heard defendant ask her brothers for some .32 caliber bullets—the same caliber as

the bullets recovered from the victims. On cross-examination, Carla testified that the police told

her they would release Johnson if she made a statement, and that she did not read the written

statement that she signed.

¶ 20   Johnson’s other sister, Janice, testified that on December 20, 1989, she overheard

defendant tell her brothers that “he was going to do a stick up” of the “insurance man.” Like

Carla, Janice testified on cross-examination that the police told her they would release Johnson if

she made a statement. She further testified that after defendant was arrested, she ran into Webb

on the street, twice, and both times he told her that he had lied to the police about this case.

¶ 21   At the time of defendant’s trial, Webb was in jail on a pending armed-robbery charge. He

testified that pursuant to a plea deal he reached with the State, he would be released that evening,

after testifying against defendant. Webb, an admitted drug addict, further testified that on the day

of the murders, he walked by Wash’s garage, on his way to buy heroin, when he saw defendant

standing outside the garage with a gun in his hand. Webb saw another person, whom he could

not identify, standing by the back of the garage. Webb acknowledged defendant and continued

on his way. On cross-examination, Webb admitted that he had lied to the police at first, and that

he implicated defendant only after realizing he was under suspicion and could soon face charges

himself.




                                                 -6­
No. 1-16-2177

¶ 22   The State called Detective Moser to introduce defendant’s inculpatory statement. Counsel

objected that defendant’s statement was hearsay and did not fall within the exception for

statements against penal interest, because it was exculpatory. Noting that “[w]e did not have any

pretrial motion on it,” the trial court agreed to hear Detective Moser’s testimony before ruling on

whether defendant’s statement was admissible.

¶ 23   Moser testified that defendant told him, along with Detectives Caesar and McCann, that

he was outside Wash’s garage at the time of the murders. Defendant said that Johnson gave

Webb a gun, and Webb then shot both of the victims. Defendant also said that he previously had

overheard Johnson and Webb planning a robbery.

¶ 24   After Detective Moser testified, counsel argued again that defendant’s statement was not

admissible as a statement against his penal interests because defendant merely admitted that he

was present, not that he was involved. The trial court admitted defendant’s statement, both

because it was inculpatory, and therefore against his penal interests, and because it was an

admission of a party-opponent, and therefore not hearsay in the first place.

¶ 25    In finding defendant guilty, the trial judge took Webb’s testimony “with more than just a

grain of salt,” finding that it “would not be sufficient on its own to convict anyone, including

[defendant].” The judge acknowledged that Johnson’s sisters “had an interest in protecting” him,

but found that they still testified credibly. Above all, the judge explained, “the statement from

[defendant]”—the same statement defendant’s lawyer thought was exculpatory—was “of

extreme importance to my findings” of guilt, since it corroborated the testimony of the other

witnesses.

¶ 26   We affirmed defendant’s convictions on direct appeal. People v. Gibson, No. 1-92-2306

(1993) (unpublished order under Illinois Supreme Court Rule 23), appeal denied, 158 Ill. 2d 557


                                               -7­
No. 1-16-2177

(1994). Defendant later filed, in sum, four postconviction petitions, a petition for relief from

judgment, and a federal habeas corpus petition. Defendant did not allege that the police

physically abused him or coerced his statement in any of these collateral pleadings, although he

did allege, in some of them, that Johnson’s statement was physically coerced.



¶ 27                             C. Postconviction Proceedings

¶ 28    In 2006, codefendant Johnson filed a successive postconviction petition. He alleged that

the recently released Report of the Special State’s Attorney was newly discovered evidence that

supported a claim of actual innocence. Johnson swore in his affidavit that Paladino, Maslanka,

Breska, and McCann punched and kicked him in the face and ribs, and made racial slurs, during

his interrogation at Area 3. After the circuit court denied leave to file the petition, we remanded

for further proceedings, based on the parties’ agreement that Johnson alleged a prima facie claim

that his confession was coerced by police torture. On remand, the State agreed to Johnson’s

immediate release, in exchange for his Alford plea to one count of first-degree murder. See

North Carolina v Alford, 400 U.S. 25 (1970). Johnson was released from prison sometime in

2012.

¶ 29    In 2011, defendant filed a petition for executive clemency. The petition alleged that he

was the victim of torture “administered by at least two infamous detectives,” whom he identified

as Paladino and Maslanka. Specifically, defendant alleged that the officers struck him in the

chest and burned a tattoo of his nickname, “Peter Gunn,” off of his arm with an iron.




                                               -8­
No. 1-16-2177

¶ 30                                   D. TIRC Proceedings

¶ 31   In May 2012, defendant filed a “claim of torture” under the Illinois Torture Inquiry and

Relief Commission Act (TIRC Act). See 775 ILCS 40/1 et seq. (West 2012). The TIRC is an

eight-person commission, appointed by the Governor, to investigate allegations of police torture.

The commission consists of a retired circuit court judge; a former prosecutor; a public defender;

a law professor; a criminal-defense lawyer; and three non-attorney public members not affiliated

with the judicial branch. See 775 ILCS 44/20(a) (West 2014).

¶ 32   On his claim form, defendant alleged that Paladino, Maslanka, McCann, “and several

others” hit, kicked, and burned him. The TIRC conducted an investigation, subpoenaing myriad

documents, obtaining an opinion from a forensic pathologist, and conducting interviews,

including one with defendant.

¶ 33   During his interview via video conference, defendant claimed that he was repeatedly

slapped, punched, and kicked. Numerous detectives interrogated him, often “switching up” from

one interrogation session to the next, but defendant named Paladino, Maslanka, McCann, and

Caesar as his alleged abusers. He also claimed that on one occasion, Paladino and Maslanka

burned his arm with a clothing iron.

¶ 34   The TIRC ultimately issued a 17-page report, finding “sufficient corroborating evidence

of torture” to warrant judicial review of defendant’s claims. The TIRC found “substantial

contemporaneous evidence” of defendant’s claims, including his immediate complaint of abuse

to the Chicago Police Department’s Office of Professional Standards (OPS), at his sister’s

urging, after his initial release from police custody; his recounting of police abuse to his public

defender, to an OPS investigator, and to doctors at Cermak Hospital; and photographs, ordered

by Judge Bastone, of defendant’s bruising at the time of his bond hearing. These


                                               -9­
No. 1-16-2177

contemporaneous reports, the commission found, were very similar to those made by

codefendant Johnson and to many of those made by other victims of Jon Burge and his detectives

that came out years later.

¶ 35   The TIRC recognized inconsistencies in defendant’s testimony, most notably his claim to

have been burned by an iron; the commission determined that there was “a significant chance

[defendant] fabricated this assertion to minimize his potential guilt and/or to increase the severity

of his claimed torture.” Finally, the TIRC noted that defendant filed suppression motions before

trial but never mentioned police abuse within them—but the commission acknowledged that the

failure to raise that issue pretrial may been the result of tactical, if incompetent, legal strategy by

defendant’s public defender at the time.

¶ 36   The TIRC also determined that the police had a motive to coerce an inculpatory statement

against defendant, as the case against defendant, aside from his incriminating statement, was

“otherwise weak.” The commission noted that defendant was placed at the scene by a heroin

addict (Webb) who only implicated defendant after defendant implicated him; that codefendant

Johnson’s sisters had a motive to implicate defendant and later admitted they only made those

statements to secure their brother’s release; that no physical evidence supported the conviction;

that even the State’s internal case evaluation characterized the case as “extremely weak” and

“entirely circumstantial”; and that the trial judge had relied overwhelmingly on the inculpatory

statement given by defendant, stating that it was “of extreme importance” to the finding of guilt.

¶ 37   The TIRC thus referred defendant’s claim to the circuit court, where the evidence in

question was presented at a hearing.




                                                - 10 ­
No. 1-16-2177

¶ 38                         E. Post-TIRC Hearing in Circuit Court

¶ 39   At the hearing before the circuit court, defendant testified that he was detained at his

mother’s house and transported to Area 3 on December 27, 1989. He was handcuffed to a chair

and left alone. The next day, he was placed in several lineups throughout the course of the day.

But he was not questioned on either day. His interrogations—and his alleged abuse—began on

December 29, 1989.

¶ 40   On December 29—sometime in the morning, defendant thought, although his perception

of time was none too clear at that point—defendant had a short conversation with Detectives

O’Mara and Collins. They did not abuse him at that time. But sometime later that day—again,

defendant could not be sure exactly when—they came back with Paladino, Maslanka, and

Detective Thomas Ptak. That is when the alleged physical abuse began.

¶ 41   One of defendant’s arms was cuffed to the chair. Paladino slapped him and threatened,

“we through playing with your ass ni***.” Maslanka told defendant that Johnson had implicated

him and his brother in the murders; defendant responded that perhaps it was Johnson and his

brother who committed them. Maslanka then kicked him in the left side of his rib cage and

punched him in the right side. Paladino slapped him “upside the head.” The detectives warned

him, “ni*** stop playing,” and threatened to “kick his ass all night” unless he started talking.

O’Mara and Collins punched him in his rib cage, stomach, and sides; Collins kicked him in the

groin. Then all of the detectives, after further warnings that defendant had better start talking,

began “flooding” him, that is, barraging him with an onslaught of slaps, punches, and kicks, all

while verbally threatening him that he had better make a statement and say what they wanted

him to say. At some point, defendant claimed, he blacked out.




                                              - 11 ­
No. 1-16-2177

¶ 42    The next day, Rusnak and Breska came to ask if he would take a polygraph exam.

(Defendant initially testified that it was McCann and Caesar, but he quickly changed his

testimony and said it was Rusnak and Breska. Defendant admitted that sometimes he gets the

various detectives confused because he encountered so many throughout his detention.) They

said if he took the test and cleared everything up, “all this ass whooping” would stop. At some

point, defendant agreed, but the detectives did not take him to the polygraph examiner until

sometime later.

¶ 43    Meanwhile, Collins and O’Mara returned, alone, and resumed punching him. At some

point, a group of other detectives—Maslanka, Paladino, Byrne, Caesar, and McCann—all came

into the room. Byrne pulled out a gun and held it; eventually he laid it on the table and asked if it

was the gun defendant used in the murders. Two of the detectives left the room and came back

with an iron. Maslanka said that the officers heard defendant had a “Peter Gunn” tattoo on his

arm; defendant acknowledged that was his nickname. Maslanka then burned defendant’s tattoo

with the iron. Byrne picked the gun up from the table, and the detectives left the room.

¶ 44    Rusnak and “the other guy” (Breska) returned to take defendant to the polygraph exam.

Defendant told them, “mother fucker just burn me, man.” They told defendant he was crazy and

drove him downtown. During the exam, defendant touched the paper in the polygraph machine

because, he said, he wanted to see it. The examiner pulled it away from defendant, and it ripped.

Rusnak and Breska “bust into the room” and grabbed him by the neck. Defendant was “hit in the

back” with “some type of blow” or “maneuver” that the detectives used. Rusnak and Breska

handcuffed defendant and drove him back to Area 3.




                                               - 12 ­
No. 1-16-2177

¶ 45     There, O’Mara and Collins resumed slapping defendant upside the head and demanding

that he start talking. Defendant told them that he saw Johnson give Webb a pistol, and Webb shot

“the white guy” (Benjamin). That was not true, but defendant said it to stop the beating.

¶ 46     After defendant made that statement, Caesar, McCann, and Moser came into the room,

uncuffed him, and took him to speak with ASA Peters. Defendant testified that McCann and an

Officer (in fact, it was Detective) Foley stayed in the room during the interview. They told

defendant to tell ASA Peters what he had just said to the officers, and this would all be over.

Defendant did so.

¶ 47     After ASA Peters concluded that defendant would not be charged at that time, Paladino

and Maslanka drove him home. During the ride, they told him if he could provide them the

murder weapon, this would all go away. On cross-examination, defendant testified that he asked

them to drive around the block and drop him off somewhere other than his house. Because he

was a drug dealer and had “control of the neighborhood,” he did not want to be seen stepping out

of a police car. Defendant testified that the officers dropped him off somewhere “on the side of

[his] house.”

¶ 48     When defendant went inside, his sister Lorraine, noticing his appearance, asked what was

wrong. Defendant told her what happened at Area 3. That night, at Lorraine’s insistence,

defendant filed a complaint over the phone with OPS. We describe that complaint in more detail

below.

¶ 49     After speaking to OPS, defendant put some ice on his ribs and some cocoa butter on his

burn; took some pain pills from his mother’s medicine cabinet; and smoked a joint. Although he

was in pain, defendant did not seek medical treatment. Living in a rough neighborhood, he was

used to “getting [his] ass whipped [his] whole life.”


                                               - 13 ­
No. 1-16-2177

¶ 50   The next day, December 31, 1989, defendant testified that he was planning to obtain

medical treatment, but he was busy making arrangements for a New Year’s Eve party he was

planning to throw for “his guys.” He did, at one point, take his pregnant sister to the hospital

after she appeared to faint, but he did not seek treatment for himself. After leaving the hospital,

defendant went out riding with “his guys.” His brother called him on his car phone to let him

know that the police were at the house looking for him. Defendant went home, where he was

arrested and brought back to Area 3. He did not make any further statements to the police.

¶ 51   In addition to his own testimony, defendant presented documentary evidence that he

immediately complained of police abuse. At 9:30 p.m., on December 30, 1989—the evening he

was released from Area 3—he filed a complaint, by telephone, with OPS. The complaint stated

that “from 27 December 1989 to 30 December 1989, at least two unknown male/white detectives

*** physically abused [defendant] by slapping, punching, and kicking him, and made physical

threats against him.” The complaint, however, also specifically listed Detectives O’Mara and

Collins, whose names defendant provided when he was asked about the identity of his alleged

abusers.

¶ 52   Defendant’s sister, Sergeant Lorraine Brown, testified to the circumstances in which the

complaint was filed. Brown was at the family home, on leave from active duty in the U.S. Army,

when defendant came back from Area 3. Brown testified that defendant looked like he had been

in a fight. His face was slightly swollen; he had a burn mark on his right bicep; and he flinched

when she tried to hug him. Samara Burks, defendant’s 13-year-old niece, was there too, and she

likewise testified that defendant flinched when she tried to hug him; that his face was swollen

and his arm was burned; and that he generally looked “disheveled” and “battered.”




                                              - 14 ­
No. 1-16-2177

¶ 53   Brown asked defendant what happened. He said that the police beat him. Brown insisted

on reporting the alleged abuse, but defendant protested, “you don’t call the police, they do this

all the time.” Brown called 911 anyway and was referred to OPS. Defendant reluctantly took the

phone and filed a complaint. In his own testimony, defendant explained that he did not know the

names of the detectives who had beaten him; they were in plainclothes and did not display their

stars. But O’Mara and Collins had left their business cards at the house when they came looking

for him a few days earlier. Lacking any better information, defendant gave OPS their names.

Later, with the benefit of the information in the police reports, he retrospectively identified his

alleged abusers.

¶ 54   OPS found, in due course, that defendant’s allegations were uncorroborated and therefore

not sustained. Burge, as the commanding officer of the unit, concurred with OPS’s findings and

signed off on the denial of defendant’s complaint.

¶ 55   Second, defendant presented contemporaneous evidence, in the form of photographs and

medical records, that documented at least some of the injuries he attributed to police abuse.

¶ 56   Defendant appeared in bond court on January 2, 1990. At his attorney’s request, the judge

signed an order allowing an investigator from the public defender’s office to come to bond court

and photograph defendant’s injuries. Four color Polaroid photos were taken of defendant’s chest

and ribcage, bearing handwritten notations that say, “Right Chest Swollen” and “Left Chest

Swollen,” and the date, January 2, 1990. (At the post-TIRC hearing under review in this appeal,

defendant attempted to introduce notes from defendant’s public defender at the bond hearing,

which stated: “Took pictures of [defendant]—said he was severely beaten by police”—but the

circuit court denied the request as hearsay.)




                                                - 15 ­
No. 1-16-2177

¶ 57   On January 3, 1990, defendant sought treatment at Cermak Hospital. He complained of

depression and pain in the left side of his chest. The emergency-room record notes that defendant

claimed he was “hit by police,” but the emergency physician found no apparent trauma to the left

chest wall. During defendant’s psychiatric evaluation, however, bruises were observed on his left

ribs and noted on his patient admission history.

¶ 58    Dr. Michael Kaufman testified as an expert in anatomic and forensic pathology. He had

been retained by the TIRC to review the bond-court photos, medical records from Cermak

Hospital, and defendant’s medical history. Dr. Kaufman testified that the photos depicted

“swelling” and a “subtle contusion of the underlying subcutaneous tissues” consistent with

defendant’s allegation of having been “punched in the chest, bilaterally,” a few days before the

photos were taken. But the photos, he opined, were merely consistent with—not “conclusive

proof” of—defendant’s allegations. Dr. Kaufman noted the discrepancy in the medical records

regarding the presence of bruises on defendant’s chest on January 3, 1990, but he could not offer

a definitive resolution or explanation of those discrepancies.

¶ 59   Third, as we noted above, Carla Smith testified at trial that she implicated defendant in a

plan to rob Benjamin after the police told her that Johnson, her brother, would be released if she

made a statement about the case. At the hearing, Carla recanted her incriminating testimony and

denied that she never heard defendant discussing a plan to rob Benjamin. Carla testified that the

statement she ultimately signed, and later testified to at trial, was false. And it did not reflect

what she actually told the police. But she signed the statement anyway, because the police told

her that they would release her brother if she did.




                                               - 16 ­
No. 1-16-2177

¶ 60      Fourth, defendant sought to admit evidence, in various forms, of a pattern and practice of

police torture by detectives under Burge’s command at the Area 2 and Area 3 Violent Crimes

Units.

¶ 61      Defendant’s counsel first asked the circuit court to take judicial notice of the existence of

such a pattern and practice. Counsel argued that it is no longer subject to reasonable dispute that

for more than three decades, suspects were routinely and systematically tortured by Burge and

his subordinates at Area 2, and later at Area 3, including at the time defendant was interrogated

there. In support of this request, the defense cited several Illinois criminal cases and federal civil-

rights cases in which there were allegations of abuse by some of the detectives assigned to this

case; the City of Chicago’s reparations ordinance, which acknowledged the reality of police

torture by Burge and his subordinates; as well as the 1996 OPS Report (the so-called Goldston

Report) and the 2006 Report of the Special State’s Attorney (the so-called Egan-Boyle Report),

both of which, in sum, found evidence of a systemic practice of physical abuse by detectives

under Burge’s command. The circuit court ruled that the fact at issue is not amenable to judicial

notice.

¶ 62      Apart from judicial notice, the defense sought to introduce the Goldston and Egan-Boyle

Reports into evidence. The defense argued that because the Illinois Rules of Evidence do not

apply at a third-stage postconviction hearing (Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013)), they

should not apply at an evidentiary hearing on a TIRC disposition either, because the two are, in

practical effect, the same. The circuit court rejected this argument and held that the hearing was

bound by the Rules of Evidence. The court also rejected the defense’s argument, in the

alternative, that both reports are admissible under the business-records or public-records

exceptions to the hearsay rule. Ill. R. Evid. 803(6), (8) (eff. Apr. 26, 2012).


                                                 - 17 ­
No. 1-16-2177

¶ 63   The defense called Michael Goldston to testify to the genesis of his report. Goldston was

an investigator who had worked for OPS and its successor organization, the Independent Police

Review Authority (IPRA), for 29 years. Goldston testified that the chief administrator of OPS

assigned him to make a report of his findings. His “task was to look at the universe of complaints

of coercion and torture and find out as much as I could,” to “examine whether there was

evidence that supported the allegations,” and to determine “what the scope of that behavior,

those acts were.” To compile his report, Goldston reviewed case files, court records, and

transcripts of courts proceedings and depositions in cases alleging physical abuse by Burge or his

subordinates. But he was explicitly ordered by his superiors not to conduct any live interviews of

the detectives or their accusers. He also testified on cross-examination that he had no formal

training in investigatory techniques, and no legal training. Based on his review of paper sources,

Goldston testified, he found “sufficient evidence of systematic abuse and torture within a small

universe of detectives who worked at Area 2,” including Burge, Byrne, Maslanka, and Paladino.

¶ 64   After hearing Goldston’s testimony, the circuit court found that even if his report was

admissible under the Rules of Evidence, it would be entitled to little weight, given Goldston’s

unreliable investigative methods and lack of formal training.

¶ 65   The defense also called codefendant Johnson, who at the time of the hearing went by the

name of Keith Smith. Johnson had been released from prison pursuant to his Alford plea. On

cross-examination, Johnson struggled to answer many of the State’s questions about the specific

details of his alleged abuse. He testified that his recollections, nearly 27 years later, were not as

clear as they once were. But he did testify that he was first interrogated about the Benjamin and

Wash murders by Paladino and Maslanka, who slapped him, punched him, and called him a

“ni***.” Later, Detective McCann punched him and forced him to submit to a polygraph test.


                                               - 18 ­
No. 1-16-2177

Afterwards, Johnson spoke to ASA Peters and told her that the detectives beat him, but Sergeant

Byrne soon removed him from the room, put a gun to his face, and told him to “stop fucking

playing and tell the officers what they want to hear.” Johnson ultimately signed a false statement,

implicating himself and defendant, because he wanted the physical abuse to stop.

¶ 66   Lastly, several of the detectives who worked this case, as well as ASA Peters, testified at

the evidentiary hearing.

¶ 67   According to documents in the record, Sergeant Byrne was the supervising detective on

this case. Byrne invoked his fifth-amendment privilege against self-incrimination and refused to

answer any substantive questions about his involvement in defendant’s interrogation.

¶ 68   The record also indicates that Detective Paladino was assigned to this case, along with his

partner Maslanka. Paladino invoked his fifth-amendment privilege and refused to answer any

substantive questions about his involvement in defendant’s interrogation.

¶ 69   Other detectives implicated by defendant—Maslanka, O’Mara, Collins, McCann, and

Ptak—were deceased by the time of the hearing.

¶ 70   Detective Moser testified, based on his review of the detectives’ reports, that he was first

assigned to this case on December 30, 1989. At that time, he had a “short conversation” with

defendant and one other detective, whom he did not name, at Area 3. “During that conversation,”

Moser testified, nobody in his presence struck or threatened defendant, but he “ha[d] no idea

what happened on the 27th, 28th, 29th.” Moser testified that he did not abuse or witness any

physical abuse of Johnson; that he never witnessed any physical abuse of a suspect at Area 3

while Burge was the commanding officer; and that he never participated in an interrogation with

Burge. To Moser’s knowledge, no allegation of physical force had ever been sustained against




                                              - 19 ­
No. 1-16-2177

him, either in a lawsuit or OPS complaint, although he had been named in various lawsuits and

complaints of abuse during his time as a detective.

¶ 71   Detective Henry Leja testified, based on his review of the detectives’ reports, that he

conducted a few field interviews in the area of the murders. But he otherwise had no memory of

the investigation at all. He never testified to participating in, witnessing, or even being present at

Area 3 during any interrogation of defendant. On cross-examination, Leja answered “no” when

the State asked whether he physically abused defendant or witnessed any other detectives do so,

but these answers were stricken as beyond the scope of defense counsel’s direct examination.

¶ 72   Detective Caesar testified that he was assigned to this case on December 31, 1989, along

with his partner, McCann, now deceased. Caesar testified, in sum, that his role in the

investigation was limited to investigating Johnson, not defendant. Caesar testified that he was not

present for any interview of defendant, and he denied that he ever spoke to defendant or even

saw him at Area 3.

¶ 73   Caesar testified that did not physically abuse Johnson or witness any other detectives do

so; and while he did not see any signs of abuse on Johnson, he was not specifically looking for

any. He did not see Byrne pull out a gun in front of defendant; nor did he see O’Mara or Collins

in a room with defendant. Caesar further denied ever physically abusing a suspect, conducting an

interrogation with Burge or Byrne, or having a court judgment or OPS complaint sustained

against him based on physical abuse of a suspect.

¶ 74   Detective Rusnak testified, based on his case notes, that he and his partner, Breska, had a

short conversation with defendant on the morning of December 29, 1989. They asked defendant

if he would agree to take a polygraph exam. Defendant did not agree until sometime later in the




                                                - 20 ­
No. 1-16-2177

day. When he did, they came back to pick up defendant and drove him to the station at 11th and

State Streets, where the exam was administered.

¶ 75   While defendant was taking the exam, the detectives, who were outside the room, heard a

“disturbance” and rushed in. Defendant was ripping the papers out of the machine and yelling,

“It’s lying, it’s lying on me.” Rusnak and Breska restrained defendant’s arms and took him back

to Area 3. Rusnak denied that either of the detectives hit defendant in the polygraph exam room.

Rusnak denied witnessing any physical abuse of defendant, noticing any signs of physical abuse,

seeing any detectives with a clothing iron, or smelling burning flesh. He further denied ever

conducting an interrogation with Burge. On cross-examination by defense counsel, Rusnak

testified that his memory of the case was limited to what he read from his notes, and thus, if

anyone had kicked defendant or knocked him to the ground, he would not be able to remember

unless the incident had been recorded in one of those reports.

¶ 76   An affidavit from Detective Breska was admitted into evidence. It was substantially

consistent with Rusnak’s testimony in its account of events and denials of committing or

witnessing any physical abuse of defendant.

¶ 77   ASA Peters testified that she was the felony-review attorney assigned to this case. Based

on her review of the notes in her felony-review folder, Peters testified that she declined to

approve charges against defendant on December 30, 1989. She further testified that if defendant

(or Johnson) had complained about being physically abused by the detectives, or if there had

been any visible signs of such abuse, she would have included that in her notes. There were no

such notes in her folder.

¶ 78   The circuit court denied defendant relief, holding that defendant failed to show, by a

preponderance of the evidence, that his statement to the police was coerced by police torture.


                                              - 21 ­
No. 1-16-2177

The court found “most compelling” the dual facts that defendant waited so long to formally

claim abuse and that his testimony (both before the TIRC and later the court) conflicted with

regard to the sequencing of the abuse and the identity of the abusers. The court refused to draw

an adverse inference from Detective Paladino’s invocation of the Fifth Amendment when asked

whether he tortured defendant because, in the court’s view, there was “ample evidence to rebut

defendant’s claim of torture and abuse.”

¶ 79   This appeal followed.



¶ 80                                       II. ANALYSIS

¶ 81                                   A. Adverse Inference

¶ 82   Defendant identified former Detective John Paladino as one of the officers who

physically abused and threatened him during his interrogations at Area 3, and former Sergeant

John Byrne as the supervising officer on the case, who also made a brief appearance in the

interrogation room. Defense counsel called Paladino and Byrne to the stand. Both officers

immediately invoked their fifth-amendment rights against self-incrimination and refused to

answer any substantive questions about their respective roles in this investigation or their

participation in defendant’s alleged abuse. For example, the following exchange took place

between defendant’s counsel and Detective Paladino:

                “Q: And at any time during Mr. James Gibson’s interrogation or questioning as a

       suspect in a double homicide between December 27, 1989, and December 31, 1989, did

       you ever observe Mr. Gibson being beaten, punched, kicked, burnt or otherwise

       physically abused or coerced?

                A: I will stand by my rights under the Fifth Amendment of the constitution.


                                              - 22 ­
No. 1-16-2177

                Q: This last question—and during this period of December 27, 1989, to December

       31, 1989, did you ever punch, kick, burn or otherwise physically abuse Mr. James

       Gibson?

                A: I will stand by my right under the Fifth Amendment of the Constitution.”

¶ 83   Detective Paladino confirmed that he would not answer any questions regarding the

investigation or interrogation of defendant. A substantially similar exchange occurred with

Sergeant Byrne, who refused to answer any substantive questions regarding the investigation of

interrogation of defendant.

¶ 84   The circuit court declined to draw an adverse inference against either officer. Defendant

contends that it was error, in both instances, not to do so.

¶ 85   Judicial review of a TIRC disposition is a civil proceeding, “akin to” the third stage of a

postconviction proceeding, which is also civil in nature. See People v. Christian, 2016 IL App

(1st) 140030, ¶ 78; People v. Whirl, 2015 IL App (1st) 111483, ¶ 106. In a civil action, the Fifth

Amendment does not forbid an adverse inference against a party who refuses to testify in

response to probative evidence of alleged misconduct. Whirl, 2015 IL App (1st) 111483, ¶ 106;

People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 332

(1997); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). As long as there is “some” evidence to

support the complainant’s allegations, a court may consider a party’s refusal to testify as further

evidence of the alleged misconduct. People v. Houar, 365 Ill. App. 3d 682, 690 (2006).

¶ 86   While the circuit court may draw an adverse inference from a party’s refusal to testify, it

is not automatically required to do so. Id. at 689; Whirl, 2015 IL App (1st) 111483, ¶ 107. That

said, the circuit court does not have unfettered—or unreviewable—discretion to decline a draw

an adverse inference. To the contrary, as we held in Whirl, a failure to draw an adverse inference


                                                - 23 ­
No. 1-16-2177

may be error, even though the inference is permissive, if there is no good reason why the

inference should not have been drawn. See Whirl, 2015 IL App (1st) 111483, ¶ 107.

¶ 87   In Whirl, 2015 IL App (1st) 111483, ¶¶ 53-65, the defendant Whirl testified at his

postconviction hearing that he was beaten and coerced into making a false confession at Area 2

by Detective James Pienta. Pienta was called to the stand. Id. ¶ 68. He was asked whether he

tortured Whirl; whether he participated in the torture of several other suspects at Area 2; and

whether incidents of police brutality and torture continued there after Burge was promoted and

transferred to Area 3. Id. (By the time of Whirl’s interrogation, Burge had already been

transferred.) Pienta took the fifth and refused to answer these, or any other, substantive

questions. Id. The parties stipulated that other detectives who could have been called to testify to

alleged incidents of abuse at Area 2—including Paladino—also would have invoked their fifth-

amendment rights. Id. The circuit court refused to draw an adverse inference. Because the State

did not produce any evidence to rebut Whirl’s claims, we found Pienta’s assertion of the

privilege “significant,” and thus held that “a negative inference should have been drawn” from it.

Id. ¶ 107.

¶ 88   Here, the circuit court distinguished Whirl on the ground that the State produced “ample”

evidence to rebut defendant’s allegations of abuse. To properly assess this conclusion, we must

isolate defendant’s various allegations.

¶ 89   We first briefly address the “claim” that Sergeant Byrne threatened defendant with a gun

on December 30, 1989. Although the lawyers on each side argue about this claim, we do not read

defendant’s testimony as claiming that Byrne threatened him with a gun. Rather, defendant

testified at the post-TIRC hearing that, at one point during his interrogation on December 30,

Sergeant Byrne entered the interrogation room, placed a gun on the table, and asked defendant if


                                               - 24 ­
No. 1-16-2177

that gun was the weapon used to commit the murders. Defendant did not testify that he was

threatened, or that he felt threatened, in any way by that gesture. So to the extent that the State

rings up this claim as some newfound allegation of abuse, appearing for the first time in

defendant’s testimony at the post-TIRC hearing—and thus a hit on defendant’s overall

credibility—we see it otherwise. Defendant has never claimed that Sergeant Byrne actively

participated in the abuse.

¶ 90   That aside, defendant’s allegations of torture can be lumped into two different categories:

(1) the beatings he claims he suffered, and (2) the burn on his arm, supposedly administered by

Detective Maslanka. We start with the general allegations of slapping, kicking, and punching.

¶ 91   We cannot agree with the circuit court that “ample evidence” existed to rebut defendant’s

claims of physical abuse insofar as he claimed that the police punched, slapped, and kicked him

repeatedly. A review of the evidence shows that none of the testifying detectives rebutted

defendant’s claims in any meaningful way.

¶ 92   Detective Moser testified that he had a “short conversation” with defendant, and one

other detective whom he did not name, on December 30, 1989. “During that conversation,” he

testified (emphasis added), nobody in his presence struck or threatened defendant, but he “ha[d]

no idea what happened on the 27th, 28th, 29th.” Thus, he had no personal knowledge whether, as

defendant testified, he was beaten repeatedly during an interrogation on December 29.

¶ 93   Leja had no memory at all of this investigation. Based on the reports he reviewed, he was

able to testify that, apparently, he conducted some field interviews near the scene of the murders,

but that was all. He never testified to participating in, witnessing, or even being present at Area 3

during any interrogation of defendant.




                                               - 25 ­
No. 1-16-2177

¶ 94   Like Leja, Rusnak testified that he had no independent memory of the case, and that his

recollection was limited to his notes; thus, if anyone had kicked defendant or knocked him to the

ground, he would not remember it unless it was recorded in his notes (which it was not). In any

event, Rusnak testified that he and his partner, Breska, had a short conversation with defendant

on the morning of December 29, 1989, in which they asked defendant if he would agree to take a

polygraph exam. Defendant did not agree until sometime later that day. When he did, they came

back to drive him to the exam, which was administered at another station. Rusnak denied

witnessing any abuse of defendant.

¶ 95   Breska’s affidavit, which the circuit court did not mention, was the same, in all essentials,

as Rusnak’s testimony.

¶ 96   And Caesar testified that he was first assigned to this investigation on December 31,

1989—after defendant’s alleged abuse had ceased and he had (temporarily) been released from

Area 3. Caesar testified that his role in the investigation was limited to Johnson. He was not

present for any interview of defendant; he never spoke to defendant; and he never even saw

defendant at Area 3. Thus, Caesar could not possibly rebut defendant’s allegations. (Ironically,

the circuit court seemed to explain this very point during a sidebar. The State had asked Caesar,

during its direct examination, whether he saw Byrne pull out a gun in front of defendant. Caesar

answered “no.” This line of questioning, the circuit court explained, was “one of those things

that’s somewhat gilding the lily. If you never saw the person, you couldn’t possibly have abused

the person.”)

¶ 97   ASA Peters testified that there was no note in her felony-review folder that defendant

complained of physical abuse, or that she observed any visible signs of abuse. It is unclear how

Peters would have been able to observe any swelling or bruises that may have been present on


                                              - 26 ­
No. 1-16-2177

defendant’s torso, as they would have been obscured by his shirt. And while defendant may not

have alleged any abuse when Peters interviewed him, neither did Whirl when the ASA

interviewed him at the station. Whirl, 2015 IL App (1st) 111483, ¶ 20. If anything, defendant’s

omission is even less meaningful than Whirl’s, since the ASA testified that he met with Whirl

alone (id.), while Peters testified that Detective Foley was in the room when she interviewed

defendant. Defendant’s reticence in these circumstances hardly “rebuts” his allegations.

¶ 98   In sum, none of the testifying detectives claimed to be present for the interrogations

during which Paladino and others allegedly struck defendant. Indeed, these were not the

detectives whom defendant accused of beating him alongside Paladino. And they were not the

detectives listed in the police reports as interrogating defendant at the same time as Paladino. In

refusing to draw an adverse inference, the circuit court misunderstood what the testimony of the

other detectives could—and could not—rebut.

¶ 99   To put a finer point on it: On his TIRC claim form, defendant alleged that Paladino,

Maslanka, McCann, “and several others” hit, kicked, and burned him. At the post-TIRC hearing

under review here, defendant named Paladino, Maslanka, O’Mara, Collins, and Ptak as

principally administering the abuse, and to a far lesser and more isolated extent Rusnak and

Breska (while removing defendant from the polygraph room after his tantrum there). His

testimony also indicated that Caesar and Byrne were present at some point in time in the

interrogation room, though he never accused either of them of participating in the physical abuse.

¶ 100 Maslanka, O’Mara, Collins, and Ptak are deceased. Obviously, none of those detectives,

principally charged with committing the abuse, rebutted defendant’s testimony. That left

Paladino, who was asked not only whether he, himself, inflicted physical abuse on defendant, but




                                              - 27 ­
No. 1-16-2177

whether he witnessed any abuse by another officer or detective. He invoked the Fifth

Amendment.

¶ 101 And while defendant never testified that Sergeant Byrne personally inflicted physical

abuse, we know this much: Sergeant Byrne confirmed on defendant’s OPS complaint that he was

the supervising detective on the case; Sergeant Byrne was one of the officers who arrested

defendant; and at least according to defendant, Sergeant Byrne entered the interrogation room on

December 30, put a gun down on the table, and asked defendant if that gun was the weapon

defendant used to commit a double murder. So defendant had at least a good-faith basis to

believe that, if the detectives under him were physically beating defendant, Sergeant Byrne

would have known as much. But when asked, Byrne did not claim a lack of memory or deny that

fact; he invoked the Fifth Amendment, too.

¶ 102 So the one detective who clearly had personal knowledge of defendant’s claims took the

fifth, and the sergeant who at least potentially would have such knowledge did the same. The

other detectives were not in the room and/or lacked any memory of the case. That is hardly a

“rebuttal” of defendant’s claims.

¶ 103 The circuit court’s final comment on the evidence “rebutting” defendant’s claims of

physical abuse were the detectives’ supposed denials “that they ever heard of anybody [being]

physically coerced” during Burge’s tenure as the violent crimes commander at Area 3. This does

not accurately state the testimony of any witness; in fact, when defense counsel posed precisely

this question to Moser, the circuit court sustained the State’s objection that it called for hearsay.

¶ 104 For these reasons, it was error for the trial court not to draw the adverse inference that

Detective Paladino, and other detectives working with him, physically abused defendant prior to

his inculpatory statement. See Whirl, 2015 IL App (1st) 111483, ¶ 107.


                                                - 28 ­
No. 1-16-2177

¶ 105 Paladino’s status as a law-enforcement officer should lend special significance to his

invocation of the fifth-amendment privilege. A police officer, no less than a prosecutor, is a

“servant of the law,” whose first obligation is not to arrest people or secure confessions but to see

“that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). It is no

overstatement to say that the integrity of our justice system is dependent on the integrity of our

police officers. We depend on them complying with the law and the Constitution when doing

their jobs—as most of them do most of the time.

¶ 106 And that is never truer than in the context of physically coerced confessions. While many

errors might affect the fairness of a trial, the law reserves a special place for physically coerced

confessions, not only because they pervert the truth-seeking function but because they undermine

the overall integrity of the trial process. As our supreme court favorably quoted Justice White:

       “[T] use of coerced confessions, ‘whether true or false,’ is forbidden ‘because the

       methods used to extract them offend an underlying principle in the enforcement of our

       criminal law: that ours is an accusatorial and not an inquisitorial system—a system in

       which the State must establish guilt by evidence independently and freely secured and

       may not by coercion prove its charge against an accused of his own mouth,’ [citations].

       This reflects the ‘strongly felt attitude of our society that important human values are

       sacrificed where an agency of the government, in the course of securing a conviction,

       wrings a confession out of an accused against his will,’ [citation] as well as ‘the deep-

       rooted feeling that the police must obey the law while enforcing the law; that in the end

       life and liberty can be as much endangered from illegal methods used to convict those

       thought to be criminal as from the actual criminals themselves,’ [citation]. Thus,

       permitting a coerced confession to be part of the evidence on which a jury is free to base


                                               - 29 ­
No. 1-16-2177

        its verdict of guilty is inconsistent with the thesis that ours is not an inquisitorial system

        of criminal justice.” People v. Wrice, 2012 IL 111860, ¶ 70 (quoting Arizona v.

        Fulminante, 499 U.S. 279, 293-94 (1991) (White, J., dissenting)).

¶ 107 Obtaining confessions by physical abuse “constitutes an egregious violation of an

underlying principle of our criminal justice system about which Justice White spoke—‘that ours

is an accusatorial and not an inquisitorial system.’ ” Id. ¶ 73 (quoting Fulminante, 499 U.S. at

293 (White, J., dissenting)). Thus, no matter how strong the case against a particular defendant

may otherwise be, our supreme court has remained steadfast in holding that the “use of a

defendant’s physically coerced confession as substantive evidence of his guilt is never harmless

error.” Id. ¶ 84.

¶ 108 So when, in the face of a credible allegation, an officer of the court is unwilling to assure

the court that he and his colleagues did not physically coerce a confession, when he determines

that a truthful answer could subject him to criminal liability, the court should take careful note.

Here, because most of the witnesses disclaimed any ability to directly address the allegations of

abuse, and the only material witnesses capable of so rebutting asserted his fifth-amendment

rights, it was error not to draw an adverse inference.



¶ 109                                      B. Harmless Error

¶ 110 Our next question is whether that error was harmless. A nonconstitutional error is

harmless only if there is no reasonable probability that it affected the outcome of the hearing. See

In re E.H., 224 Ill. 2d 172, 180 (2006).

¶ 111 In its decision to deny relief below, the circuit court identified as “most compelling” two

major concerns with defendant’s testimony. The first was how long it took defendant to press


                                                 - 30 ­
No. 1-16-2177

these claims. The second was the defendant’s shifting testimony as to which detectives

committed which abuse at what time—most notably, defendant’s rather recent claim of being

burned by Detective Maslanka.

¶ 112 First, the trial court found that defendant’s allegations of abuse were not credible because

he had failed to allege them in prior court proceedings over the years. But defendant’s allegations

did not come out of the blue. Apart from immediately telling his sister, OPS, his bond-court

attorney, and doctors at Cermak Hospital, defendant testified that he told his trial attorney that he

was abused by the police. The trial court at the post-TIRC hearing evidently did not believe this

testimony, since defendant did not move to suppress his statement on these grounds. Instead, trial

counsel filed a boilerplate motion to quash defendant’s arrest as lacking probable cause, and

defendant filed a pro se supplemental motion to suppress Johnson’s confession as coerced.

¶ 113 But a closer look at the pretrial proceedings demonstrates that defendant’s claims have

far more merit than the trial court credited. There is ample reason to think that the focus of the

pretrial motions was the result of trial counsel’s ineffectiveness. As we recounted previously (see

supra ¶¶ 16, 22-24), the record clearly shows that defendant’s public defender believed that there

was no basis or need to suppress defendant’s statement to the police, as he believed it to be

exculpatory—it placed defendant at the scene merely as a bystander, not a shooter or

accomplice—and thus that it was both helpful to the defense and inadmissible under the hearsay

rules as either a statement against interest or a party-opponent’s admission.

¶ 114 Misadvised by his attorney that his own statements were not subject to suppression,

defendant moved to suppress Johnson’s statement instead—a statement that did directly

implicate defendant in the murder—and left his own statement utterly unchallenged. In a twist of

bitter irony, Johnson’s statement was never admitted at defendant’s trial (because Johnson


                                               - 31 ­
No. 1-16-2177

refused to testify at defendant’s trial and was thus not subject to cross-examination), while

defendant’s supposedly “exculpatory” statement ended up being the lynchpin of his conviction in

the eyes of the trial judge.

¶ 115 After defendant was convicted, he fired his public defender and retained new counsel to

represent him on a motion for new trial. Defendant testified at the post-TIRC hearing that he told

his posttrial counsel about his abuse. Counsel told him, however, that he was unable to locate the

bond-court photos or medical records from Cermak Hospital, and that without any evidence to

corroborate defendant’s allegations, he could not allege in a pleading that defendant’s statement

was the product of police abuse. Indeed, defendant testified that he had tried for over two

decades to obtain this evidence, and letters from Cermak Hospital denying his requests as late as

2012 attest to his inability to do so.

¶ 116 In the motion for new trial, posttrial counsel thus alleged that the trial court erred in

admitting a “purported statement of the defendant, which was neither a confession, nor

admission of culpability.” Dissatisfied with this approach, defendant filed a pro se supplemental

motion, in which he “allege[d] that he did not have an Evidentiary Hearing, in that the State

allowed Officer Moser to testify to an alleged statement made by the defendant.” On cross-

examination at the post-TIRC evidentiary hearing, the State questioned defendant about his

failure to allege in this context that he had been abused by the police. Defendant testified that “I

was trying to get it in there,” but as he understood the advice of his attorney, “I couldn’t mention

my statement because I didn’t have any evidence.” Later, defendant reiterated, “I never got a

chance to put the coercion in there because we didn’t have any evidence. I was trying to get in

there some way that we could have a hearing to determine why my statement was made and




                                               - 32 ­
No. 1-16-2177

admitted into evidence in the first place.” And as defendant noted, in all fairness, “I am not a

lawyer. I didn’t know what I was doing.”

¶ 117 Defendant, in short, did everything he thought he could do, consistent with the advice of

his attorneys, to challenge his statement during his original trial proceedings. Given this record,

we cannot accept the circuit court’s assertion that defendant simply remained mum for decades

before opportunistically conjuring abuse allegations after the Burge scandal came to light.

¶ 118 The trial court’s other reason for questioning the credibility of defendant’s testimony was

that “his testimony before the TIRC and this court not only conflicts regarding names of the

police officers but their presence at times, description, and acts, specifically he never mentioned

the alleged burning.”

¶ 119 The circuit court’s concern with defendant’s testimony about Detective Maslanka burning

him on the forearm was understandable. It is true, on the one hand, that from the first time that

defendant recounted his abuse in writing—the 2011 clemency petition—onward, he has claimed

that he was burned by Detective Maslanka, and both defendant’s sister and niece testified that

they saw a burn mark on defendant’s arm when he was first released from police custody on

December 30, 1989. But on the other hand, it is also true that the contemporaneous evidence of

defendant’s abuse—his OPS complaint, photographs taken on the order of Judge Bastone, and

hospital records—reveal nothing about a burn on defendant’s arm. The evidence is sufficiently

conflicting that we would not disturb the circuit court’s credibility finding on this question of the

burn injury.

¶ 120 But we can go no further in crediting the circuit court’s findings on the evidence. While

there is no question that the details of defendant’s testimony varied, there is likewise no question




                                               - 33 ­
No. 1-16-2177

that the core allegations have remained the same: a group of detectives, including Paladino and

Maslanka, repeatedly slapped, punched, and kicked him, primarily in his chest.

¶ 121 Defendant may have varied the order of the alleged events from one forum to the next—

perhaps Paladino initiated the abuse by slapping him, and Maslanka kicked him later; or perhaps

it was the other way around—but more than a quarter-century later, we would not expect

defendant to recall such fine-grained details of a beating. And maybe he was never sure, to begin

with, exactly who threw which punch, slap, or kick in what order. It does not strike us

implausible that someone experiencing a stressful encounter would struggle to keep those kinds

of facts straight, not immediately afterward and certainly not decades later.

¶ 122 Similarly, the circuit court emphasized that defendant was not consistent from one forum

to the next as to which officers participated with Paladino and Maslanka in the alleged abuse. At

the evidentiary hearing, he testified that they were joined by O’Mara, Collins, and Ptak; in his

TIRC deposition, he said Caesar and McCann. But defendant has made two things abundantly

clear.

¶ 123 First, he has never claimed that he knew the identity of his alleged abusers when he was

at Area 3. His OPS complaint stated that “at least two” “unknown” officers beat him. He gave

the names of O’Mara and Collins because they had previously visited defendant’s home and left

their business cards. And defendant testified at the hearing that the detectives were in

plainclothes, did not display their stars, and did not tell him their names. It was not until

defendant could retrospectively piece together the events at Area 3, with the benefit of the police

reports, that he began to identify his alleged abusers. (And the police reports show that O’Mara,

Collins, and Ptak participated with Paladino and Maslanka in defendant’s interrogations on

December 29, 1989.)


                                               - 34 ­
No. 1-16-2177

¶ 124 Second, defendant was candid, throughout his testimony, that he sometimes confuses the

various detectives in recounting these events, in part because his recollections are not always

crystal clear so many years later, and in part due to the large number of detectives who were

involved in his interrogations and moving in and out of the room. Indeed, during the post-TIRC

hearing, defendant often mispronounced names—“Malanski” or “Matalanski” for Maslanka,

“Padolis” for Paladino—and sometimes referred to people as the “tall” guy or the “short” guy or

“the sarge—the one with the juice.”

¶ 125 These variations in defendant’s accounts do not strike us as anything out of the ordinary.

Disparities in fine-grained detail are routinely present in witness’s accounts, particularly those of

stressful events. We do not dispute that the circuit court was entitled to consider inconsistencies

in defendant’s statements in assessing his overall credibility; we note only that the evidence was

much more closely balanced than the circuit court found. The drawing of an adverse inference

could have changed the outcome of the hearing. The error could not be harmless. We reverse the

circuit court’s judgment and remand for further proceedings consistent with this opinion.

¶ 126 We will not go as far as defendant would ask and order his release or a new trial at this

juncture. The circuit court should have the first opportunity to consider all the evidence, along

with the properly-drawn adverse inference, to ultimately determine whether its doubts about

defendant’s credibility remain, and whether such doubts warrant a denial of relief.



¶ 127                              C. Illinois Rules of Evidence

¶ 128 In light of our disposition above, we need not reach many of the other issues defendant

raises on appeal. But there is one question of law, embedded in several of his arguments, that

will necessarily arise in any future evidentiary hearing on a claim referred to the circuit court


                                               - 35 ­
No. 1-16-2177

from the TIRC: Given that the Illinois Rules of Evidence (Rules) do not apply to “postconviction

hearings” (Ill. R. Evid. 1101(b)(3) (amended Apr. 8, 2013)), do the Rules apply at an evidentiary

hearing on a claim referred from the TIRC? Our answer is no.

¶ 129 The Rules were enacted by our supreme court. Ill. S. Ct., M.R. 24138 (eff. Jan. 1, 2011).

Thus, the rules of statutory construction apply. In re Michael D., 2015 IL 119178, ¶ 9. Whether

we are construing a statute or a rule, our primary goal is the same: to discern the intent of the

drafters. Id. The most reliable indicator of intent is the plain and ordinary meaning of the statute

or rule. Id. “Each word, clause, or sentence of a statute [or rule] must be given a reasonable

meaning, if possible, and should not be rendered superfluous.” People v. Jackson, 2011 IL

110615, ¶ 12. We may consider the reason(s) for the law, and the consequences of construing it

one way or another; and we are to presume that absurd, inconvenient, or unjust results were not

intended. Id. Statutes (and rules) that bear on the same subject should be construed together, and

“in harmony with each other, if reasonably possible.” Williams v. Illinois State Scholarship

Comm’n, 139 Ill. 2d 24, 52 (1990). The construction of a statute (or rule) is a question of law that

we review de novo. Jackson, 2011 IL 110615, ¶ 12.

¶ 130   Rule 1101(a) provides that the Rules “govern proceedings in the courts of Illinois,”

except as otherwise provided in Rule 1101. Ill. R. Evid. 1101(a) (eff. Apr. 8, 2013)). Subsection

(b)(3) exempts “postconviction hearings” from the Rules. Ill. R. Evid. 1101(b) (eff. Apr. 8,

2013). It does not, as the State points out, separately list evidentiary hearings on claims referred

to the circuit court from TIRC—what the TIRC Act calls “post-commission judicial review.” See

775 ILCS 40/50 (West 2014). And the TIRC Act was passed in 2009, well before the 2013

amendment that exempted postconviction hearings from the purview of the Rules.




                                               - 36 ­
No. 1-16-2177

¶ 131 The State’s argument thus rests on the principle that the enumeration of one thing in a

statute implies the exclusion of others. See, e.g., Baker v. Miller, 159 Ill. 2d 249, 260 (1994).

Because this rule of statutory construction is not a rule of law, it may be overcome by a “strong

indication of contrary legislative intent.” Id. The State’s application of the principle may appear

sound when Rule 1103 is read in isolation, but for several reasons, we disagree with the State’s

interpretation.

¶ 132 First, we are unable to reconcile the State’s position with the plain language of the TIRC

Act. Section 50 of the TIRC Act provides, “Notwithstanding the status of any other

postconviction proceedings relating to the petitioner, if the court finds in favor of the petitioner,

it shall enter an appropriate order [for such relief] as may be necessary and proper.” (Emphasis

added.) 775 ILCS 40/50(a) (West 2014). Similarly, section 55 provides that “[a] claim of torture

asserted through the Commission shall not adversely affect the convicted person’s rights to other

postconviction relief.” (Emphasis added.) 775 ILCS 40/55(b) (West 2014). We understand the

General Assembly, in these provisions, to refer to a TIRC claim as one species of postconviction

proceeding. We see no other way to give the word “other” in these provisions a reasonable

meaning that does not render it superfluous. See Jackson, 2011 IL 110615, ¶ 12.

¶ 133 It would be one thing if Rule 1101 had narrowly exempted proceedings under the Post-

Conviction Hearing Act (see 725 ILCS 5/122-1 et seq. (West 2014)); that would surely exclude

proceedings under the TIRC Act. But Rule 1101 uses the more generic term “postconviction

hearing,” and we presume that the supreme court was fully aware of the General Assembly’s

description of a TIRC claim when it enacted the Rules. Thus, we conclude that the Rules do not

apply at evidentiary hearings on claims arising under either act.




                                               - 37 ­
No. 1-16-2177

¶ 134 The State argues that this result conflicts with the TIRC Act, because the Act specifically

provides that in reviewing a claim referred by the TIRC, “[t]he court may receive proof by

affidavits, depositions, oral testimony, or other evidence.” 775 ILCS 40/50(a) (West 2014). In

the State’s view, this provision shows that the legislature “clearly intended for the post-

commission judicial review to be governed by some sort of rules.” But the identical provision

also appears in the Post-Conviction Hearing Act, and the Rules do not apply to proceedings

under that act. 725 ILCS 5/122-6 (West 2014) (“The court may receive proof by affidavits,

depositions, oral testimony, or other evidence.”). So the State’s argument proves nothing.

¶ 135 More generally, section 50(a) of the TIRC Act is taken, verbatim, from section 122-6 of

the Post-Conviction Hearing Act, with only two exceptions: the first sentence of section 50(a),

which describes the referral process; and the telling reference to “other postconviction

proceedings.” (Emphasis added.) 775 ILCS 40/50 (West 2014). We conclude that the legislature

intended post-commission judicial review to be understood as a new species of postconviction

proceeding.

¶ 136 Moreover, the State’s position, if adopted, would have arbitrary, unfair, and confusing

results. An evidentiary hearing on a claim of police torture might be held because the claim was

referred by the TIRC, or because a petition under the Post-Conviction Hearing Act survived the

State’s motion to dismiss. We see no good reason why the evidence admissible at the hearing

should depend on which of these remedies the petitioner invoked. Exempting a hearing from a

strict application of the Rules obviously expands the range of evidence that the court may

consider. It seems arbitrary and unfair to limit the evidence that a TIRC petitioner may present,

relative to the evidence that a petitioner may present when pursuing relief under the Post-

Conviction Hearing Act. Counterproductive, too: the General Assembly did not establish the


                                              - 38 ­
No. 1-16-2177

TIRC because victims of police torture needed a remedy that was harder to secure than what

they already had. Accepting the State’s argument would take the “extraordinary” out of the

“extraordinary procedure to investigate and determine factual claims of torture” that the General

Assembly created. 775 ILCS 40/10 (West 2016).

¶ 137 And sometimes a petitioner—for instance, Whirl—will file a joint petition, under both

acts, and the circuit court will hold a combined evidentiary hearing. See Whirl, 2015 IL App

(1st) 111483, ¶¶ 50, 52. This is a prudent pleading procedure and an efficient use of judicial

resources. The State’s rule would plunge such hearings into needless confusion.

¶ 138 We thus hold that judicial review of a TIRC claim is a type of “postconviction hearing”

within the meaning of Rule 1101(b)(3). The Illinois Rules of Evidence do not apply at those

hearings.

¶ 139 It follows from this exemption that there is no general prohibition against hearsay at a

“postconviction hearing,” whether the hearing is conducted under the TIRC Act or the Post-

Conviction Hearing Act. There are many other types of hearings at which the general prohibition

against hearsay does not apply. See Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). For example,

sentencing hearings have long been exempt from the rules of evidence—in lowercase, since the

exemption predates not only the 2013 amendment but the original codification of the Rules. See,

e.g., People v. Meeks, 81 Ill. 2d 524, 535 (1980); People v. Spicer, 379 Ill. App. 3d 441, 467

(2007). We have always left it “to the ‘sound discretion’ of the trial court to determine whether

hearsay is reliable enough to weigh in sentencing.” Spicer, 379 Ill. App. 3d at 467; Meeks, 81 Ill.

2d at 535 (evidence admissible at sentencing if deemed “accurate and reliable”). If the trial court

finds hearsay evidence “relevant and reliable,” the fact that it is hearsay affects its weight, rather

than its admissibility. Spicer, 379 Ill. App. 3d at 467; People v. Harris, 375 Ill. App. 3d 398, 409


                                                - 39 ­
No. 1-16-2177

(2007). The same rule applies at a suppression hearing (People v. Patterson, 192 Ill. 2d 93, 112


(2000)), where the trial court’s inquiry overlaps significantly with the inquiry at an evidentiary


hearing on a claim of police torture. In short, we routinely entrust trial judges with the discretion 


to decide whether hearsay evidence is reliable enough to be admitted at a hearing, and, if so, how


much weight the hearsay evidence deserves. We do the same here.


¶ 140 The circuit court held that the Rules applied to defendant’s evidentiary hearing. Thus,


when defendant proffered hearsay evidence of various sorts, the circuit court held that defendant


had to show that it fell within a recognized exception to the hearsay rule. None of defendant’s 


proffered hearsay evidence was admitted. On remand, the circuit court should reconsider this


proffered evidence in light of our holding here. But the circuit court remains free to assign the 


appropriate weight to whatever evidence it considers; admissibility does not equate to significant


weight or probative value, as the circuit court recognized below.




¶ 141                                   III. CONCLUSION


¶ 142 For the reasons given above, we reverse the circuit court’s judgment denying defendant’s 


claim and remand for further proceedings consistent with this opinion.


¶ 143 Reversed and remanded.





                                               - 40 ­
