                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Wrice, 2012 IL 111860




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STANLEY
Court:                     WRICE, Appellee.



Docket No.                 111860
Filed                      February 2, 2012


Held                       The use of a defendant’s physically coerced confession as substantive
(Note: This syllabus       evidence of his guilt is never harmless error and can establish the
constitutes no part of     “prejudice” prerequisite for leave to file a successive postconviction
the opinion of the court   petition.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Evelyn B.
                           Clay, Judge, presiding.



Judgment                   Affirmed as modified; cause remanded with directions.
Counsel on               Lisa Madigan, Attorney General, of Springfield, and Stuart A. Nudelman,
Appeal                   Special State’s Attorney, of Chicago (Myles P. O’Rourke, Andrew N.
                         Levine, Rafael A. Bombino and Brian J. Stefanich, Assistant Special
                         State’s Attorneys, of counsel), for the People.

                         Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
                         Defender, and Heidi Linn Lambros, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Chicago, for appellee.

                         Robert M. Stephenson and Steven W. Becker, of Becker Stephenson
                         LLC, of Chicago, for amicus curiae the Chicago Innocence Project.

                         G. Flint Taylor, Jr., and Joey L. Moguel, of the People’s Law Office, and
                         Locke E. Bowman and Alexa A. Van Brunt, all of Chicago, for amicus
                         curiae Persons Concerned about the Integrity of the Illinois Criminal
                         Justice System.


Justices                 JUSTICE THEIS delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and
                         Burke concurred in the judgment and opinion.
                         Justice Thomas took no part in the decision.



                                           OPINION

¶1        In October 2007, defendant Stanley Wrice filed a petition in the circuit court of Cook
      County seeking leave to file a second successive postconviction petition challenging his 1983
      convictions for rape and deviate sexual assault. Defendant alleged that newly discovered
      evidence substantiated his prior claim that his confession was the product of police brutality
      and torture. The trial court denied defendant leave to file his successive postconviction
      petition. The appellate court reversed and remanded for a third-stage evidentiary hearing,
      holding that defendant had satisfied the cause-and-prejudice test for successive
      postconviction petitions. 406 Ill. App. 3d 43.
¶2        For the reasons that follow, we affirm the appellate court’s judgment reversing the trial
      court’s order denying leave to file, but remand the cause to the trial court for appointment
      of postconviction counsel and second-stage postconviction proceedings.

¶3                                   BACKGROUND
¶4         In the early morning hours of September 9, 1982, 33-year-old K.B. was sexually

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     assaulted, beaten, and burned. Several men, including defendant, were implicated in the
     attack, which occurred in the attic of defendant’s Chicago residence. Defendant, then 28
     years old, was charged with numerous offenses, including rape and deviate sexual assault.
     Prior to trial, defendant moved to suppress inculpatory statements he allegedly made to
     investigators arguing, inter alia, that the statements were made “as a result of psychological,
     physical and mental coercion” by Detective Peter Dignan and Sergeant John Byrne.1
¶5       At the suppression hearing, Dignan, Byrne, and Dioguardi testified regarding events
     following defendant’s arrest on the morning of September 9, 1982. According to their
     testimony, defendant was taken to Area 2 Violent Crimes Headquarters, arriving there
     between 7 a.m. and 7:15 a.m. Byrne testified that as defendant was being led to a second-
     floor interview room, defendant stated, “I’ll tell you everything.” Dignan told defendant that
     he would be questioned later. Defendant was handcuffed to a ring on the wall in the
     interview room. At approximately 8 a.m., after Dignan advised defendant of his Miranda
     rights, Dignan, Dioguardi and Byrne spoke to defendant for 20 to 30 minutes, during which
     time defendant gave a statement. The officers denied striking defendant, threatening him, or
     abusing him in any manner.
¶6       At 10 a.m., Dignan called the Felony Review Unit of the Cook County State’s Attorney’s
     office and requested an assistant State’s Attorney. Assistant State’s Attorney Kenneth
     McCurry arrived at Area 2 at 10:30 a.m. and spoke with the three officers. At approximately
     12:50 p.m., McCurry, accompanied by Dioguardi and Dignan, had a conversation with
     defendant. Before speaking with defendant, McCurry advised defendant of his Miranda
     rights. Defendant denied involvement in the crimes, indicating that he never went upstairs
     where the assault of K.B. took place. At approximately 1:35 p.m., at defendant’s request,
     McCurry, Dioguardi and Dignan again spoke to defendant, who said he wanted to tell the
     truth. According to McCurry, defendant stated that he did go upstairs when K.B. was at the
     house. There, he saw a number of men having sexual intercourse with her. Defendant also
     stated that he saw Rodney Benson burn K.B. with an iron, and that he took the iron from
     Benson and dropped it on K.B.’s thigh. McCurry did not observe any injuries to defendant’s
     face and did not notice anything unusual about defendant’s walk. Defendant did not complain
     that he had been struck by police.
¶7       Defendant testified at the suppression hearing that, after his arrest, he was taken to Area
     2 Headquarters and placed in a second-floor room, where he was handcuffed to a ring on the
     wall. Sergeant Byrne and Detective Dignan questioned him about what had happened at his
     house earlier that day. Defendant gave a statement but did not implicate himself. According
     to defendant, Dignan freed him from the wall ring and told him that he (Dignan) “was fixing
     to do some police brutality.” Defendant testified that he was then taken to a room on a lower
     floor “that had bars in it, and what appeared to be cells.” Upon questioning by Byrne,
     defendant repeated what he had told Byrne and Dignan upstairs. Byrne told defendant he was


             1
             Although defendant’s suppression motion also identified Detective David Dioguardi,
     defendant’s testimony did not directly implicate Dioguardi in the alleged beatings and defendant has
     focused his claim of police brutality solely on Byrne and Dignan.

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     lying and hit him in the forehead with a flashlight that was 15 to 16 inches long. Dignan then
     struck defendant across his right thigh with a piece of rubber, approximately 12 to 13 inches
     long, which was taped on both ends. Byrne and Dignan continued to question defendant,
     striking him at random on his arms and thighs. Defendant testified: “Sergeant Byrne told me
     that we were about to return back upstairs; if he found out I was lying, I could expect the
     same thing.”
¶8        Defendant further testified that sometime after returning upstairs, Dignan and Byrne
     accused defendant of lying, stating that Benson (who was also being questioned at Area 2)
     told them that defendant had burned K.B. Defendant testified that Byrne and Dignan took
     him back downstairs, where Dignan struck him with a piece of rubber across his left thigh
     and his left arm, and Byrne repeatedly struck him with a flashlight on his right arm and once
     in his chest. According to defendant:
                  “As I tried to move my arm from Sergeant Byrne, Sergeant Byrne told me this
             time to stand up. I stood up. He grabbed my hands and turned me around and put my
             hands up over my head like this and my back was facing them, and my hands were
             up to the bars, and at this time Sergeant Byrne started kicking my legs apart and he
             told me he was going to let me see how it feels to be mistreated.
                  At this time he hit me between my legs in my groin with the flashlight. He hit me
             once, then hit me again, and this time I was, you know, fell, like I was trying to fold
             up to keep him from hitting me again.
                  At this time both of them grabbed me, unfolded me, stood me back up, and at this
             time Detective Dignan was hitting me between the legs in the groin with a piece of
             rubber.
                                               ***
                  Detective Dignan asked me would I, you know, when I go back upstairs, would
             I relate this to somebody–to an attorney that was investigating the case; and I told
             him I would relate to the attorney exactly what I had related to them earlier.”
     Defendant testified that after he was taken back upstairs, he had a 20-minute conversation
     with McCurry, at which Dioguardi and Dignan were present. Defendant stated that McCurry
     did not advise him of his constitutional right to an attorney or to remain silent, and that he
     only spoke to McCurry because he was afraid of Dignan and Byrne. Defendant gave
     McCurry the same statement he had given to police when he was first brought to Area 2.
     McCurry, Dioguardi and Dignan returned later, but defendant told McCurry that he had
     nothing else to say.
¶9        Chicago Police Lieutenant John Crane testified that Area 2 headquarters was formerly
     the Burnside police district and that the building contained two abandoned jail cells adjacent
     to the garage on the first floor. Although the cell doors had been removed, the rest of the bars
     comprising the lockup remained. The lockup area, which was used for storage, could be
     accessed by going down the stairs from the second floor, then proceeding first through a
     wooden door, which was unlocked, and then a steel door, which was locked. Lieutenant
     Crane testified that the key to the metal door was kept behind the front desk on the first floor,


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       which itself was behind a locked door.2
¶ 10        Defendant also presented medical testimony at his suppression hearing. Karem Ali
       Abdal-Aziz testified that he was a paramedic responsible for giving new inmates at the Cook
       County jail complete physical examinations and that he examined defendant on September
       10, 1982. According to Abdal-Aziz’s written report, defendant advised him of several
       injuries that occurred the day before. Defendant reported an injury to the left side of his head,
       his groin, right and left biceps, left shoulder, right hand, and his sternum, all from blunt
       trauma. Defendant also reported an injury to his thighs or kneecaps. Although Abdal-Aziz
       had no specific recollection of defendant’s examination, he testified that inmates are required
       to remove their shirts for the examination and that he would have observed the injuries on
       the upper part of defendant’s body. He would not have observed the leg and groin injuries
       that defendant reported.
¶ 11        Dr. Stanley Harper, a physician with Cermak Health Services, testified that he examined
       defendant on September 15, 1982. According to the doctor’s examination notes, defendant
       reported that he had been beaten across his back, hands and legs with a flashlight and billy
       club by Chicago police one week earlier. He complained of pain in the groin, blood in his
       urine 24 to 48 hours after the beating, and burning or pain on urination. The notes from Dr.
       Harper’s physical examination state that genitals were normal, but defendant complained of
       scrotal pain on palpation. Dr. Harper also noted multiple healing hematomas on defendant’s
       left anterior leg. Although a urinalysis showed no evidence of blood, Dr. Harper testified that
       the urinalysis did not rule out the possibility that defendant experienced bleeding. Dr.
       Harper’s assessment, or clinical impression, was “history of multiple blunt trauma.” The
       doctor ordered X-rays of defendant’s left leg and thoracic spine to rule out any small fracture
       or dislocation of the spine that might have resulted from the alleged attack. The X-rays were
       normal.
¶ 12        The circuit court found that defendant’s statements to police and Assistant State’s
       Attorney McCurry were voluntary and denied defendant’s motion to suppress. The case then
       proceeded to a jury trial.
¶ 13        The State’s evidence showed that on September 8, 1982, K.B., an admitted alcoholic,
       spent the day drinking with two friends at the apartment she shared with her boyfriend, Gene
       Edwards. The apartment was above a liquor store, located at 75th Street and South Jeffrey
       Street in Chicago, where Gene worked. A little after midnight, when the alcohol was
       exhausted, K.B.’s friends had left, and Gene was asleep, K.B. left the apartment intending
       to go to a friend’s house on Paxton Street. K.B. testified that as she walked down 75th Street,
       a car with some black men inside pulled up to her; one of the men asked if she needed a lift.
       K.B. declined the offer. The next thing she remembered was being in the car.
¶ 14        Testimony established that the driver of the vehicle was Rodney Benson (also known as
       “Span”). Benson, defendant, and Bobby Joe Williams had driven from defendant’s home,


               2
                Lieutenant Crane was called as a witness during the hearing on Rodney Benson’s motion
       to suppress statements, which was conducted at the same time as defendant’s hearing on his motion
       to suppress. Defendant adopted the entirety of Crane’s testimony.

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       located on the 7600 block of South Chappel Street, to the liquor store at 75th and Jeffrey
       streets to pick up beer. The men noticed K.B. staggering down 75th Street and, according to
       Williams, stopped to see what was wrong. Chicago Police Sergeant Elbert Harris, who was
       on patrol in the area, saw the group and stopped to investigate. Sergeant Harris noticed the
       smell of alcohol emanating from K.B. and that her speech was slurred. Harris asked K.B. if
       she needed to go to the hospital or the police station. K.B. told Harris that the men were
       helping her and that they were going to take her to a friend’s house. After determining that
       the men were going to take K.B. where she wanted to go, Harris made a note of the license
       plate number and left.
¶ 15       According to Williams, after Benson drove off with K.B., he, defendant, and an
       unidentified black male with a bicycle walked back to defendant’s home. Williams testified
       that shortly after arriving there, Benson pulled up to the rear of defendant’s home. Benson
       carried K.B. to the attic, which was accessed by a staircase off of the kitchen. There, a bed
       was located under two small windows, which allowed in light from the streetlights. The attic
       had no other source of light.
¶ 16       K.B. testified that she was repeatedly raped, beaten and burned by a group of black men.
       Specifically, K.B. testified that one of the men punched her in the face, causing her to fall
       onto the bed. Three men in succession then had vaginal intercourse with her. A fourth man
       demanded oral sex. When K.B. refused, the man punched her, knocking her to the floor, and
       then punched her again. At some point, the man put his penis in her mouth. K.B. next
       remembered seeing flames coming at her face and being burned on her face and body,
       including her breasts. K.B. did not recognize her attackers, and she made no in-court
       identification of defendant as one of the men who assaulted her.
¶ 17       Williams testified that after Benson took K.B. upstairs, defendant and the bicycle rider
       went upstairs. Williams was also present in the attic from time to time as were Michael
       Fowler (also known as “Little Mike”), Lee Holmes, and Kenneth Lewis. Williams and Lewis
       both testified that they saw Benson, followed by Fowler, have sexual intercourse with K.B.
       Williams also testified that he saw defendant having sexual intercourse with K.B., and saw
       defendant hitting her. Williams further testified that he heard Holmes tell K.B. to “set her
       face out,” meaning to suck his penis. Lewis testified that he also saw the bicycle rider have
       sexual intercourse with K.B., and that he heard K.B. say “no” more than once.
¶ 18       Lewis further testified that, at one point in the evening, defendant came downstairs from
       the attic and picked up a hot iron from the stove. Lewis took the iron from defendant. After
       defendant went back upstairs, Lewis heard “smacks and slaps.” Lewis went upstairs and saw
       defendant beating K.B. with his fist. Three times Lewis pulled defendant off of K.B. Lewis
       said K.B. was not moving; he thought she was dead. Lewis left defendant’s home for about
       20 minutes to get some barbecue. When he returned, Lewis went to the attic and saw that
       K.B. was “burned from head to toe” and that there were iron marks on her breasts and legs.
       Later, Lewis saw defendant come downstairs, retrieve a hot spoon from the stove, and return
       upstairs. Lewis heard K.B. say, “Why are you burning me?” Williams similarly testified that
       he saw defendant pick up a hot iron from the kitchen stove and go upstairs. The next
       morning, defendant told Williams they “burned that bitch.” Medical testimony established
       that K.B. suffered second and third degree burns to her face, neck, chest, breasts, thighs,

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       back, and buttocks, in addition to extensive bruising, particularly to her lower extremities.
¶ 19        K.B. further testified that during her ordeal, she passed out from the pain, later coming
       to on the floor. She then recalled hearing a man say, “Get the bitch out of here before we get
       a murder beef,” or something to that effect. K.B. remembered a man dressing her and
       carrying her under her arms to the stairs. Her next recollection was being outside. K.B., not
       knowing where she was and her eyes swollen, crawled to the alley and made her way toward
       a light, which she later discovered was a gas station.
¶ 20        George Wilson, who was working the midnight shift at the gas station at 76th and Jeffrey
       streets on September 9, 1982, testified that he saw a white woman walking toward the station
       at 3 a.m. or 3:30 a.m. When she finally made her way to the station, he noticed that her eyes
       were bruised and her mouth was swollen and bloody. Wilson called police.
¶ 21        Investigation led police to defendant’s home, where they arrived at about 4:30 a.m.
       Defendant’s sister, Patricia Wrice, allowed police to enter. Other persons were present in the
       home, including defendant, Charles Wrice (defendant’s brother), and Williams (Patricia
       Wrice’s boyfriend). Once inside, police noticed a “burning odor” in the house, which was
       stronger in the kitchen. Police saw charred debris on the kitchen sink and on the floor,
       including a rolled-up paper that was burned. In the attic, police saw additional charred
       matter, and recovered a metal carving fork with a burnt tip, and a steam iron without the
       cord. The hole pattern on the steam iron matched many of the burn marks on K.B. Police also
       recovered from the attic a broken wooden hanger and certain articles of clothing, including
       panties and a shoe, that belonged to K.B.
¶ 22        As a result of their investigation that morning, police arrested several persons, including
       defendant, and transported them to Area 2 for questioning. Sergeant Byrne testified at trial
       that as defendant was placed in one of the second-floor interview rooms, defendant stated,
       “I’ll tell you everything.” A half-hour later, after Detective Dignan advised defendant of his
       Miranda rights, Byrne, Dignan, and Detective Dioguardi questioned defendant. According
       to Byrne, defendant related that on September 8, 1982, at about 11 p.m., he was walking
       home when he saw Benson sitting in a car with a woman. Williams was nearby, along with
       a police sergeant. Defendant heard Benson tell the sergeant that he was taking the woman to
       a girlfriend’s house. After the sergeant left, defendant and Williams walked to defendant’s
       home. Ten minutes later, Benson arrived and asked defendant if he could use a bed. Benson
       and the woman then went upstairs, followed at some point by Williams, Fowler, Lee Holmes,
       and another man. According to Byrne, defendant said that during this entire time he stayed
       downstairs in the living room. At some point, Fowler, Lee, another man, and the woman left.
¶ 23        Byrne denied having a second conversation with defendant, denied striking defendant,
       and denied knowing of any location at Area 2 that had abandoned jail cells or bars.
¶ 24        Assistant State’s Attorney McCurry testified that after arriving at Area 2 on the morning
       of September 9, 1982, he spoke with Byrne, Dioguardi, and Dignan, and then interviewed
       four witnesses. At about 12:50 p.m., McCurry met defendant and advised him of his Miranda
       rights. Dioguardi and Dignan were present. McCurry’s testimony as to the statement
       defendant then provided was substantially the same as the statement to which Byrne testified.
       McCurry spoke to defendant again at about 1:35 p.m., at defendant’s request. According to


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       McCurry, defendant stated that the events previously described were correct up to the point
       where Benson and K.B. arrived at the house. Defendant told McCurry that after Benson took
       K.B. upstairs, he also went upstairs. Holmes and Fowler were present, along with a man who
       arrived on a bike. Defendant said Benson and the bicycle rider had sexual intercourse with
       K.B., and Benson was slapping and hitting K.B., demanding oral sex. Defendant also told
       McCurry that he saw Benson burn K.B. with an iron over most of her body and that he took
       the iron from Benson and dropped it on K.B.’s thighs.
¶ 25        The parties stipulated that police were unable to lift any prints off of the iron, hanger or
       fork recovered from the attic of defendant’s home; the hanger had human blood, but the
       blood type could not be determined; the panties had blood, but whether it was human could
       not be determined; the fork and the iron did not have human blood; the tip of the fork was
       burned, and the tip was discolored either from chemicals or heat. Finally, the parties
       stipulated that the vaginal smears obtained from K.B. did not reveal the presence of
       spermatozoa.
¶ 26        Defendant testified in his defense that on September 8, 1982, he arrived home from work
       at about 10:45 p.m. Williams was at the house and Benson arrived about an hour later. The
       three men drove to the liquor store at 75th and Chappel streets in Benson’s vehicle. While
       Benson looked for parking, defendant went into the liquor store and bought beer and
       cigarettes. When he left the store, he saw K.B. sitting in the front passenger seat of Benson’s
       car, which was parked in the Chicken Coop restaurant lot. Williams and Sergeant Harris
       were also there. Defendant testified that K.B. had a black eye, and that Harris asked K.B.
       whether she wanted to go to the hospital or police station. K.B. told Harris no; she was going
       with Benson. Harris then left in his patrol car.
¶ 27        According to defendant, Benson drove off with K.B. and he and Williams walked back
       to defendant’s house. A man with a bicycle, whom defendant earlier saw speaking with K.B.
       and Benson, followed behind defendant and Williams. Shortly after Williams and defendant
       arrived back at defendant’s home, Williams answered a knock at the back door and called
       to defendant. Defendant saw Benson, K.B., and the bicycle rider on the back porch. Williams
       asked defendant if they could go upstairs and get high. Defendant told Williams he would
       have to clear it with Patricia Wrice, but when defendant returned to the living room, he heard
       people going upstairs. Defendant followed and saw Benson and K.B. sitting on the bed. The
       attic was dark and defendant could not see who else was there, but he heard Fowler’s voice.
       After cautioning everyone not to mess up the area of the attic where he was doing some
       construction, defendant went downstairs to the living room.
¶ 28        After listening to Patricia argue with Williams about the late-night company, defendant
       left to call his fiancé, Jennifer. Defendant went to a nearby phone booth because his home
       did not have a telephone. Defendant spoke to Jennifer for 30 to 45 minutes. When defendant
       returned home, he fell asleep on the living room couch. Sometime later, Kim, a friend of
       Patricia Wrice, awakened defendant and told him that the people in the attic were fighting.
       Defendant went upstairs and saw Benson, Fowler, Holmes, and the bicycle rider. Another
       person was present but defendant could not see who it was. When defendant told everyone
       to leave, Benson grabbed him. Defendant broke free, found a hammer, and everyone ran
       downstairs. When defendant reached the kitchen, the only people he saw were Benson and

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       K.B. Benson and defendant had a brief exchange and then Benson left with K.B.
¶ 29       Defendant testified that after his arrest at his home later that morning, he was taken to
       a second-floor interview room at Area 2, where he was questioned by Detectives Dioguardi
       and Dignan. Defendant testified that police did not provide any Miranda warnings.
       According to defendant, the first time police questioned him, he “told them what happened
       from the time that [he] went to the store to the time [he] came back.” Defendant did not tell
       police about Kim waking him up. Consistent with his testimony at the suppression hearing,
       defendant testified that Detective Dignan told him he was going to show him “some police
       brutality.” Dignan and Byrne took defendant down some stairs into a room with bars. On his
       way downstairs, defendant saw Williams, who was crying.
¶ 30       Once downstairs, Dignan again asked defendant what happened. Defendant told Dignan
       that he told them what he knew upstairs. Dignan and Byrne then repeatedly struck defendant
       with a flashlight and a long piece of rubber. Defendant testified that Dignan kept asking him
       who burned and raped K.B. Defendant said things were happening quickly, he was confused,
       and could not remember everything that occurred. After Dignan and Byrne returned
       defendant upstairs, defendant saw Benson, who was crying and walking with a limp.
¶ 31       According to defendant, sometime later, Dignan and Byrne took defendant back
       downstairs. They told defendant that Benson had said defendant burned K.B. When
       defendant denied any involvement, Byrne and Dignan said he was lying and again beat him
       with the flashlight and rubber piece.
¶ 32       About 45 minutes after police brought defendant back to the second floor of Area 2,
       defendant spoke with Assistant State’s Attorney McCurry. Dignan and Dioguardi were
       present. Defendant testified that he told McCurry the same thing he told police earlier about
       what happened from the time he went to the store to the time he returned home. Defendant
       could not remember what else he might have told McCurry at this time. Defendant testified
       that McCurry came back a second time and asked defendant if he had anything else to say.
       Defendant told him no.
¶ 33       Patricia Wrice, defendant’s sister, testified she first became aware that a woman was
       upstairs when she was in the kitchen, sometime after midnight, and heard the woman say,
       “Get off of me, you can’t fuck. Send the next one on.” Patricia then saw Benson running
       down the stairs zipping his pants. During this time, defendant was in the living room. Patricia
       told Benson and Fowler, who was also in the kitchen, to leave, which they did. Shortly
       thereafter, defendant left to call Jennifer. Patricia returned to her bedroom and heard
       someone coming into the house. Patricia saw Benson and another man carrying a white
       woman out the door. Patricia denied telling investigators that she heard someone hitting
       another person upstairs, or that she heard someone on the second floor say, “You are going
       to suck my dick,” or words to that effect.
¶ 34       Patricia also testified that while she was at Area 2 on the morning of September 9, 1982,
       she heard police beating her brother. She said she could hear her brother and another man
       hollering from the basement at different times. Patricia testified that police told her they
       would not hurt defendant too badly.
¶ 35       The paramedic who conducted defendant’s intake physical at the Cook County jail on

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       September 10, 1982, and the physician who examined defendant on September 15, 1982,
       testified consistently with their testimony at the suppression hearing as to defendant’s injuries
       and complaints on those dates.
¶ 36        The parties stipulated that Lieutenant John Crane, if called to testify, would testify
       regarding the old lockup area on the first floor of Area 2. The stipulation was substantially
       similar to Crane’s testimony at the suppression hearing.
¶ 37        The jury, which was instructed on the principle of accountability, found defendant guilty
       of armed violence, two counts of aggravated battery, deviate sexual assault, unlawful
       restraint, and rape. The aggravated battery convictions merged with the armed violence
       conviction, and the trial court sentenced defendant to an extended 60-year term for rape, a
       consecutive 40-year term for deviate sexual assault, a concurrent 70-year term for armed
       violence, and a concurrent 5-year term for unlawful restraint. Defendant appealed.
¶ 38        The appellate court rejected defendant’s sufficiency-of-the-evidence argument, relying
       on the eyewitness testimony of Williams and Lewis. People v. Wrice, 140 Ill. App. 3d 494,
       498-99 (1986). The appellate court did not consider defendant’s inculpatory statement to
       police, omitting any reference to his statement in its recitation of the trial evidence and in its
       analysis. Id. The appellate court also vacated defendant’s convictions and sentences for
       unlawful restraint and armed violence based on the one-act, one-crime rule. Id. at 501-02.
       The rape and deviate sexual assault convictions remained intact, along with the combined
       100-year sentence.
¶ 39        In 1991, defendant filed a pro se postconviction petition alleging, in relevant part, that
       his rights under the fifth and eighth amendments to the federal constitution were violated in
       that Sergeant Byrne and Detective Dignan beat defendant while he was in custody at Area
       2. The trial court summarily dismissed defendant’s petition; the appellate court affirmed.
       People v. Wrice, No. 1-91-2332 (1994) (unpublished order under Supreme Court Rule 23).
       The appellate court reviewed the testimony from the suppression hearing (although omitting
       any mention of Lieutenant Crane’s testimony and defendant’s testimony) and concluded that
       the trial court’s determination as to the voluntariness of defendant’s statements was not
       manifestly erroneous. Id.
¶ 40        In 2000, defendant filed a successive pro se postconviction petition alleging violations
       of his due process rights under both the federal and state constitutions, all related to his claim
       that Sergeant Byrne and Detective Dignan beat him while in custody at Area 2. In support,
       defendant cited the report from the Chicago police department’s Office of Professional
       Standards (OPS), establishing that abuse of prisoners and coerced confessions at Area 2 were
       widespread and systematic. Defendant argued that the new evidence of abuse and beatings
       practiced at Area 2 by Sergeant Byrne and Detective Dignan would have increased the
       likelihood that his coerced statements would have been suppressed and the outcome of his
       trial would have been different. The circuit court appointed counsel for defendant. Counsel
       did not file an amended petition, but did file a partial response to the State’s motion to
       dismiss. In her response, defense counsel made plain that the OPS investigations, chronicled
       in the reports of OPS Investigators Goldston and Sanders, identified Byrne and Dignan as
       “players” in the systematic abuse at Area 2. The circuit court granted the State’s motion to


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       dismiss, finding the petition was untimely and did not satisfy the criteria for consideration
       of a successive petition. The circuit court denied defendant’s motion to reconsider. The
       appellate court affirmed. People v. Wrice, No. 1-01-1697 (2003) (unpublished order under
       Supreme Court Rule 23).
¶ 41        In October 2007, defendant filed a petition for leave to file a successive petition for
       postconviction relief, which is the subject of this appeal. In his petition for leave to file,
       defendant maintained that newly discovered evidence substantiated his prior claim that he
       was severely beaten and forced to confess to a crime he did not commit, in violation of his
       fourth, fifth, sixth and fourteenth amendment rights. In support, defendant cited the Report
       of the Special State’s Attorney, Edward J. Egan, who was appointed in 2002 by the presiding
       judge of the criminal division of the circuit court of Cook County to investigate allegations
       of torture, perjury, obstruction of justice, conspiracy to obstruct justice, and other offenses
       by police officers under the command of Jon Burge at Area 2 and Area 3 police headquarters
       beginning in 1973. Defendant attached portions of the report to his petition.3 In his petition,
       defendant noted that Egan’s report concluded that three cases existed which would justify
       indictments for mistreatment of prisoners by Chicago police officers. Those cases were based
       on the complaints of Andrew Wilson,4 Alfonzo Pinex, and Phillip Adkins. The report
       concluded, however, that many other cases led investigators to believe or suspect that the
       claimants were abused, but proof beyond a reasonable doubt was absent. Defendant also
       noted that the report concluded that Jon Burge was guilty of prisoner abuse and that “[i]t
       necessarily follows that a number of those serving under his command recognized that, if
       their commander could abuse persons with impunity, so could they.” Defendant further noted
       that the report concluded that the “inter-office procedures followed by the State’s Attorney’s
       Office and the Chicago Police Department during at least the tenure of Jon Burge at Areas
       2 and 3 were inadequate in some respects.”
¶ 42        Defendant argued that he satisfied the “cause” portion of the cause-and-prejudice test
       because Egan’s report was not released to the general public until July 19, 2006, and that he
       did not receive a copy of the report until February or March 2007. Defendant also argued that
       he established prejudice, explaining that without his confession and Williams’ testimony
       (which defendant also claimed was coerced), the remaining evidence was insufficient to
       convict.
¶ 43        The trial court denied defendant leave to file his second successive postconviction
       petition. The appellate court reversed and remanded for a third-stage evidentiary hearing. 406
       Ill. App. 3d at 53. The appellate court held that defendant could not have argued that the


               3
                The circuit court record was supplemented with the complete 292-page report on compact
       disc. The disc also contains individual reports in several cases investigated by the Special State’s
       Attorney, including defendant’s case.
               4
                 This is the same Andrew Wilson who was the defendant in People v. Wilson, 116 Ill. 2d 29
       (1987), where this court, as discussed infra in section III of this opinion, ordered a new trial based
       on the State’s failure to prove that the injuries Wilson sustained while in police custody were not
       inflicted as a means of obtaining his confession.

                                                   -11-
       Special State’s Attorney’s report corroborated his claims of police torture in his
       postconviction petitions filed in 1991 and 2000 because the report was not released until
       2006. Defendant thus satisfied the “cause” prong of the cause-and-prejudice test. Id. at 52.
       As to the “prejudice” prong of the test, the appellate court initially observed that “ ‘[t]he use
       of a defendant’s coerced confession as substantive evidence of his guilt is never harmless
       error.’ (Emphasis added.) People v. Wilson, 116 Ill. 2d 29, 41 (1987).” Id. at 53. The
       appellate court determined that, similar to the defendant in People v. Patterson, 192 Ill. 2d
       93 (2000), defendant has:
                “(1) consistently claimed, during his motion to suppress, at trial, and on
                postconviction review, that he was tortured; (2) his claims of being beaten are
                strikingly similar to those of other prisoners at Areas 2 and 3; (3) the officers
                involved, Sergeant Byrne and Detective Dignan, are identified in other allegations
                of torture; and (4) defendant’s allegations are consistent not only with OPS findings
                (under the preponderance of the evidence standard of proof) of systemic and
                methodical torture at Area 2 under Jon Burge, but also with the [Special State’s
                Attorney’s] Report’s findings of torture under the stricter standard of proof beyond
                a reasonable doubt. As such, defendant has satisfied the ‘prejudice’ prong of the
                cause-and-prejudice test.” Id.
¶ 44        We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010);
       Ill. S. Ct. R. 612 (eff. Sept. 1, 2006). We also allowed The Chicago Innocence Project and
       “Persons Concerned about the Integrity of the Illinois Criminal Justice System” to file briefs
       amicus curiae in support of defendant. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010); Ill. S. Ct. R.
       612 (eff. Sept. 1, 2006).

¶ 45                                         ANALYSIS
¶ 46                                               I
¶ 47        The Post-Conviction Hearing Act (Act) provides a method by which defendants may
       assert that, in the proceedings which resulted in their convictions, there was a substantial
       denial of their federal and/or state constitutional rights. 725 ILCS 5/122-1 (West 2010). A
       proceeding under the Act is a collateral attack on the judgment of conviction. People v.
       Mahaffey, 194 Ill. 2d 154, 170 (2000). Where, as here, a defendant seeks to institute a
       successive postconviction proceeding, the defendant must first obtain leave of court. 725
       ILCS 5/122-1(f) (West 2010); People v. Tidwell, 236 Ill. 2d 150, 157 (2010); People v.
       LaPointe, 227 Ill. 2d 39, 44 (2007).
¶ 48        Leave of court may be granted only if the defendant demonstrates “cause” for his or her
       failure to bring the claim in his or her initial postconviction proceeding and “prejudice”
       resulting therefrom. See 725 ILCS 5/122-1(f) (West 2010) (codifying the cause-and-
       prejudice test articulated in People v. Pitsonbarger, 205 Ill. 2d 444, 458-60 (2002)); Tidwell,
       236 Ill. 2d at 161 (whether leave is granted is a determination dependent upon a defendant’s
       satisfaction of the cause-and-prejudice test). A defendant shows cause “by identifying an
       objective factor that impeded his or her ability to raise a specific claim during his or her
       initial post-conviction proceedings.” 725 ILCS 5/122-1(f) (West 2010). A defendant shows

                                                 -12-
       prejudice “by demonstrating that the claim not raised during his or her initial post-conviction
       proceedings so infected the trial that the resulting conviction or sentence violated due
       process.” Id.
¶ 49        The State concedes that defendant has satisfied the cause prong, challenging only the
       appellate court’s determination that defendant also satisfied the prejudice prong. On this
       issue, the State argues that the per se rule set forth in Wilson, that “use of a defendant’s
       coerced confession as substantive evidence of his guilt is never harmless error” (Wilson, 116
       Ill. 2d at 41), is no longer good law in light of Arizona v. Fulminante, 499 U.S. 279 (1991),
       and, thus, the appellate court erred in relying on Wilson. The State posits that under
       Fulminante, admission of a coerced confession is subject to harmless-error review, and that
       under any definition of harmless error, admission of defendant’s allegedly coerced confession
       was harmless beyond a reasonable doubt. Thus, the State urges this court to reverse the
       appellate court judgment and affirm the trial court’s order denying defendant leave to file his
       second successive postconviction petition.
¶ 50        Because the State’s arguments raise purely legal issues, our review proceeds de novo.
       People v. Johnson, 206 Ill. 2d 348, 359 (2002); see also People v. Johnson, 191 Ill. 2d 257,
       268 (2000) (sufficiency of the allegations contained in a postconviction petition is reviewed
       de novo).

¶ 51                                             II
¶ 52       Before considering the State’s principal argument, we address what the State maintains
       is an inconsistency in defendant’s claim. The State notes that although defendant argues that
       his confession should have been suppressed as the product of police violence, he has also
       consistently maintained that he did not confess.
¶ 53       The law is settled that a defendant’s assertion that he did not confess does not preclude
       the alternative argument that any confession should be suppressed. People v. Norfleet, 29 Ill.
       2d 287, 289-91 (1963); accord People v. Manning, 182 Ill. 2d 193, 205 (1998); see also
       Ashcraft v. Tennessee, 322 U.S. 143, 152 n.7 (1944) (“The use in evidence of a defendant’s
       coerced confession cannot be justified on the ground that the defendant has denied he ever
       gave the confession.”).
¶ 54       In People v. Hobley, 182 Ill. 2d 404 (1998), cited by the State, we rejected the
       defendant’s postconviction claim that new evidence of police brutality at Area 2 would have
       caused the jury to conclude that the defendant’s confessions, which he denied making, were
       coerced. Id. at 450. We noted that the defendant’s argument was contrary to the position he
       took at trial, where his “primary challenge to the confessions was that they were fabricated
       by police.” Id. We concluded that evidence that other suspects were allegedly coerced into
       confessing “would not have directly aided that position.” Id. Our conclusions in Hobley,
       based on a review of the record and arguments in that case, should not be construed as an
       abrogation of Norfleet. Evidence of coercion is not rendered irrelevant simply because the
       defendant has denied confessing. Thus, defendant here is entitled to press his claim that his
       confession was coerced.
¶ 55       We now turn to Wilson.

                                                -13-
¶ 56                                               III
¶ 57       Wilson was a direct appeal in a capital case and the first Area 2 police brutality case to
       reach this court. The defendant argued on appeal that his statement to police, in which he
       admitted to shooting two police officers, should have been suppressed as involuntary. The
       defendant testified that “he was punched, kicked, smothered with a plastic bag, electrically
       shocked, and forced against a hot radiator” until he confessed. Wilson, 116 Ill. 2d at 35. The
       defendant, who was treated in a hospital emergency room the same day that he confessed,
       provided medical testimony and photographic evidence substantiating his injuries. We held
       that the State failed to establish, by clear and convincing evidence, that the injuries the
       defendant sustained while in police custody were not inflicted as a means of producing the
       confession, and the defendant’s statement should have been suppressed as involuntary. Id.
       at 41. We reversed and remanded for a new trial because “[t]he use of a defendant’s coerced
       confession as substantive evidence of his guilt is never harmless error.” Id. In support of this
       per se rule, we cited Payne v. Arkansas, 356 U.S. 560 (1958), Chapman v. California, 386
       U.S. 18 (1967), and Rose v. Clark, 478 U.S. 570 (1986).
¶ 58       In Payne, a capital case, the Supreme Court reversed the defendant’s murder conviction
       and remanded for a new trial. Payne, 356 U.S. at 569. The Court held that the confession of
       the defendant, a “mentally dull” 19-year-old who was arrested without a warrant, denied a
       hearing before a magistrate, not advised of his right to counsel and to remain silent, held
       incommunicado for three days, denied food for long periods, and threatened by the chief of
       police with mob violence against him, was not voluntary. Id. at 567. The Court rejected the
       State’s argument that because there was adequate evidence of guilt, apart from the
       confession, the jury’s verdict should be sustained. Id. at 567-68. The Court explained:
               “[W]here, as here, a coerced confession constitutes a part of the evidence before the
               jury and a general verdict is returned, no one can say what credit and weight the jury
               gave to the confession. And in these circumstances this Court has uniformly held that
               even though there may have been sufficient evidence, apart from the coerced
               confession, to support a judgment of conviction, the admission in evidence, over
               objection, of the coerced confession vitiates the judgment because it violates the Due
               Process Clause of the Fourteenth Amendment.” Id. at 568.
¶ 59       In Chapman, the Court declined to adopt a rule that all errors of federal constitutional
       dimension require automatic reversal of a criminal conviction. Chapman, 386 U.S. at 21-22.
       The Court concluded that some constitutional errors, in the setting of a particular case, are
       so “unimportant and insignificant” that they may, consistent with the federal constitution, be
       deemed harmless beyond a reasonable doubt. Id. at 22-24. The Court recognized, however,
       that “prior cases have indicated that there are some constitutional rights so basic to a fair trial
       that their infraction can never be treated as harmless error.” Id. at 23. The Court cited Payne,
       along with Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel), and Tumey v.
       Ohio, 273 U.S. 510 (1927) (right to an impartial judge). Id. at 23 n.8. The Court further held
       that the error at issue–the prosecutor’s improper comment on the defendants’ silence–was
       not harmless. Id. at 24.
¶ 60       Finally, in the Rose case, the Court reviewed the harmless-error doctrine in relation to


                                                  -14-
       an erroneous jury instruction, holding that the instructional error at issue “does not compare
       with the kinds of errors that automatically require reversal of an otherwise valid conviction.”
       Rose, 478 U.S. at 579. The Court explained:
                   “Despite the strong interests that support the harmless-error doctrine, the Court
               in Chapman recognized that some constitutional errors require reversal without
               regard to the evidence in the particular case. [Citations.] This limitation recognizes
               that some errors necessarily render a trial fundamentally unfair.” Id. at 577.
       The Court observed that each of the examples Chapman cited of errors that could never be
       harmless either “aborted the basic trial process” (by admission of a coerced confession), or
       “denied it altogether” (by denial of counsel, or by trial before a biased adjudicator). Id. at 578
       n.6.
¶ 61        As the foregoing discussion demonstrates, the rule set forth in Wilson, that “use of a
       defendant’s coerced confession as substantive evidence of his guilt is never harmless error”
       (Wilson, 116 Ill. 2d at 41), is simply an iteration of the Supreme Court’s pronouncements in
       Payne, Chapman, and Rose. See also Lynumn v. Illinois, 372 U.S. 528, 537 (1963) (where
       the Court, relying on Payne, held that the trial court’s view that admission of the defendant’s
       coerced confession could be harmless error is an “impermissible doctrine”). Wilson,
       however, predates Arizona v. Fulminante, 499 U.S. 279 (1991), in which the Supreme Court
       considered whether the admission at trial of a coerced confession is subject to harmless-error
       analysis. Fulminante, 499 U.S. at 285.
¶ 62       Fulminante involved the 1982 murder of the defendant’s 11-year-old stepdaughter. The
       defendant, while in federal prison on unrelated charges, befriended a fellow inmate, Anthony
       Sarivola, who was a paid informant for the Federal Bureau of Investigation (FBI),
       masquerading as an organized-crime figure. Sarivola knew the defendant was starting to get
       some “tough treatment” from fellow inmates who heard rumors that the defendant was
       suspected of killing a child. Id. at 283. Sarivola offered to provide protection if the defendant
       told him the truth regarding the circumstances of his stepdaughter’s death. The defendant
       told Sarivola how he had killed the girl, and the defendant was subsequently charged with
       her murder. The defendant’s motion to suppress the statement he had made to Sarivola was
       denied, and the defendant was convicted of the girl’s murder. The Arizona high court held
       that the confession was coerced, and because harmless-error analysis was precluded by
       Supreme Court precedent, the Arizona court reversed the defendant’s conviction and
       remanded for a new trial without the use of the confession. State v. Fulminante, 778 P.2d
       602, 627 (Ariz. 1988). The Supreme Court affirmed the reversal, but for different reasons.
       Fulminante, 499 U.S. at 285. In a fractured opinion, the Supreme Court decided three issues,
       each issue commanding a different five-justice majority.
¶ 63        The Court first considered whether the defendant’s confession had been coerced.5 Justice
       White, joined by Justices Marshall, Blackmun, Stevens, and Scalia, agreed with the Arizona


               5
                The Supreme Court uses the terms “coerced confession” and “involuntary confession”
       interchangeably as a convenient shorthand. The Court used the former term in Fulminante because
       that was the term used by the Arizona Supreme Court. Fulminante, 499 U.S. at 287 n.3.

                                                 -15-
       Supreme Court that the defendant’s confession was, indeed, coerced. Id. at 287. Chief Justice
       Rehnquist, joined by Justices O’Connor, Kennedy, and Souter, dissented. Id. at 303-06
       (Rehnquist, C.J., dissenting, joined by O’Connor, Kennedy and Souter, JJ.).
¶ 64        The Court next considered whether harmless-error analysis applies to the admission of
       coerced confessions. The four dissenting justices who believed the confession was not
       coerced, joined by Justice Scalia, who believed it was coerced, determined that coerced
       confessions are subject to harmless-error analysis. Id. at 310. Chief Justice Rehnquist wrote
       for this majority.6
¶ 65        Finally, the Court considered whether the admission of the defendant’s coerced
       confession was harmless. Justice Souter did not vote on this issue, which the Court resolved
       by a 5-3 vote in favor of the defendant. Justice White, who wrote for the majority, was joined
       by Justices Marshall, Blackmun, and Stevens. These four justices, who voted as a block on
       all three issues, agreed that although harmless-error analysis should not apply to coerced
       confessions, the admission of the defendant’s confession was not harmless. Id. at 296. The
       fifth vote in favor of this result was provided by Justice Kennedy. Although Justice Kennedy
       believed that admission of the defendant’s confession was not error, its admission was not
       harmless. Id. at 313-14 (Kennedy, J., concurring in the judgment).7 Thus, although five
       justices (Chief Justice Rehnquist and Justices Scalia, O’Connor, Kennedy, and Souter)
       believed the defendant’s conviction should stand, either because the confession was not
       coerced or because its admission was harmless error, the Court affirmed the reversal of the
       defendant’s conviction.
¶ 66        In deciding the reach of Fulminante with respect to the present case, we necessarily focus
       our attention on the second issue the Court considered: the applicability of harmless-error
       analysis to coerced confessions. Chief Justice Rehnquist, writing for the majority,
       distinguished between a classic “trial error” and a “structural defect[ ] in the constitution of
       the trial mechanism.” Id. at 307-09 (Rehnquist, C.J.). A “trial error” is an error which
       “occurred during the presentation of the case to the jury, and which may therefore be


               6
                Chief Justice Rehnquist acknowledged that “the opinion on whether or not harmless error
       applied to coerced confessions *** is technically dicta.” Chief Justice William Rehnquist, Remarks
       at the 61st Judicial Conference, United States Judges of the Fourth Circuit, Opening Session, June
       28, 1991, vol. I, at 19. Similarly, a legal commentator observed that “harmless-error analysis was
       essential to the vote of only one of the Justices in the majority [Justice Scalia] and therefore cannot
       be considered a holding.” Lewis J. Liman, Fulminante, 205 N.Y.L.J. 30 (April 3, 1991).
               7
                Justice Kennedy’s vote led one commentator to conclude that “it undermines the legitimacy
       of the Court” because the “actual result of the case [to affirm the reversal of Fulminante’s
       conviction] did not have the support of the majority.” Kenneth R. Kenkel, Note, Arizona v.
       Fulminante: Where’s the Harm in Harmless Error?, 81 Ky. L.J. 257, 279 (1993). But see Edward
       A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 144 (1999) (“If,
       however, Justices Rehnquist, O’Connor, Kennedy, and Souter had not reached out to opine about
       issues unnecessary to their vote on the judgment, Justice Kennedy would never have been tempted
       to change his vote.”).

                                                   -16-
       quantitatively assessed in the context of other evidence presented in order to determine
       whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08. In contrast,
       a “structural defect” defies harmless-error analysis because it affects the entire conduct of the
       trial from beginning to end. Id. at 309-10. Structural defects identified by the Court since
       Chapman was decided include the unlawful exclusion of members of the defendant’s race
       from a grand jury (Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)); deprivation of the right
       to self-representation (McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)); and deprivation
       of the right to a public trial (Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984)). Fulminante, 499
       U.S. at 310.
¶ 67        Chief Justice Rehnquist determined that the admission of an involuntary statement or
       confession is “similar in both degree and kind to the erroneous admission of other types of
       evidence” and is thus a trial error subject to harmless-error review. Id. The Chief Justice
       found the evidentiary impact of a coerced confession to be “indistinguishable” from the
       evidentiary impact of a confession obtained in violation of the sixth amendment, or of
       evidence seized in violation of the fourth amendment, or of a prosecutor’s improper
       comment on a defendant’s silence in violation of the fifth amendment. Id. Observing that the
       Court has applied harmless-error analysis to the violation of other similarly important
       constitutional rights “involving the same level of police misconduct” as that at issue in
       Fulminante (id.at 311), the Chief Justice concluded:
                “The inconsistent treatment of statements elicited in violation of the Sixth and
                Fourteenth Amendments, respectively, can be supported neither by evidentiary or
                deterrence concerns nor by a belief that there is something more ‘fundamental’ about
                involuntary confessions. This is especially true in a case such as this one where there
                are no allegations of physical violence on behalf of the police.” Id.
¶ 68        Although acknowledging that an involuntary confession may have “a more dramatic
       effect” on a trial than other errors and may even be “devastating” to a particular defendant,
       the Chief Justice did not consider this to be a reason to eschew harmless-error review. Id. at
       312.
¶ 69        Justice White, writing in dissent, also recognized the damning effect of the admission of
       a defendant’s confession at trial:
                “A defendant’s confession is ‘probably the most probative and damaging evidence
                that can be admitted against him,’ [citation] so damaging that a jury should not be
                expected to ignore it even if told to do so, [citation] and because in any event it is
                impossible to know what credit and weight the jury gave to the confession.” Id. at
                292 (White, J., dissenting).
¶ 70        While Chief Justice Rehnquist focused on the truth-seeking function of a trial, i.e., the
       factual determination of a defendant’s guilt or innocence (id. at 308, 310 (Rehnquist, C.J.)),
       Justice White expressed the view that the right of a defendant not to have his coerced
       confession used against him protects important values unrelated to the search for the truth
       (id. at 295 (White, J., dissenting)). Justice White wrote:
                “[S]ome coerced confessions may be untrustworthy. [Citation.] Consequently,
                admission of coerced confessions may distort the truth-seeking function of the trial

                                                 -17-
               upon which the majority focuses. More importantly, however, the 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 its verdict of guilty is inconsistent with the thesis that ours is not an inquisitorial
               system of criminal justice.” Id. at 293-94.
       Justice White concluded that use of a coerced confession aborts the basic trial process and
       renders a trial fundamentally unfair. Id. at 295. Of the numerous Supreme Court opinions
       Justice White cited in support of his position (id. at 288-89), none were expressly overruled
       by the Rehnquist majority.
¶ 71       In light of Fulminante, the rule set forth in Wilson, that “use of a defendant’s coerced
       confession as substantive evidence of his guilt is never harmless error” (Wilson, 116 Ill. 2d
       at 41), cannot stand as a matter of federal constitutional law.8 That said, we conclude that
       Fulminante does not mandate that we abandon the rule in its entirety. Rather, we may recast
       the rule as follows: use of a defendant’s physically coerced confession as substantive
       evidence of his guilt is never harmless error.9
¶ 72       Our conclusion that the Wilson rule still has some vitality flows from the fact that, in
       Fulminante, the defendant’s confession to his cellmate, an FBI informant, was not the
       product of physical coercion. Rather, the facts demonstrated that the motivating factor in the
       defendant’s confession was the fear of violence, absent protection from the defendant’s
       cellmate. Fulminante, 499 U.S. at 288. The Court did not need to decide whether admission
       of a confession that is the result of physical abuse, violence, or torture is subject to harmless-
       error review. Indeed, Chief Justice Rehnquist distinguished Fulminante from cases involving
       physical coercion, stating that application of harmless error is “especially true in a case such
       as this one where there are no allegations of physical violence on behalf of the police.”
       (Emphasis added.) Id. at 311. Thus, the Chief Justice confined his analysis to harmless-error


               8
                Whether the Wilson rule could stand as a matter of state constitutional law is not before us
       because defendant here has only claimed violations of his rights arising under the federal
       constitution.
               9
                We need not, in the context of the present case, arrive at a comprehensive definition of
       “physical coercion,” because under any definition, the beatings alleged by defendant here would
       qualify.

                                                   -18-
       cases involving “the same level of police misconduct” as that at issue in Fulminante, citing,
       as a representative case, Milton v. Wainwright, 407 U.S. 371 (1972). Id. Milton involved the
       admission of the defendant’s confession to an undercover police officer in violation of the
       defendant’s sixth amendment right to counsel–a scenario far removed from the present case.
¶ 73       However one might measure the level of police misconduct in a given case, we think it
       suffices to say that Fulminante did not involve the same level of police misconduct alleged
       in this case–beatings perpetrated by two police officers who figured prominently in the
       systematic abuse and torture of prisoners at Area 2 police headquarters. We believe that this
       type of coercion by the state is qualitatively different from the coercion that was at issue in
       Fulminante and 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. at 293 (White, J., dissenting). As expressed in Ashcraft v.
       Tennessee, 322 U.S. 143 (1944):
                    “The Constitution of the United States stands as a bar against the conviction of
               any individual in an American court by means of a coerced confession. There have
               been, and are now, certain foreign nations with governments dedicated to an opposite
               policy: governments which convict individuals with testimony obtained by police
               organizations possessed of an unrestrained power to seize persons suspected of
               crimes against the state, hold them in secret custody, and wring from them
               confessions by physical or mental torture. So long as the Constitution remains the
               basic law of our Republic, America will not have that kind of government.” Ashcraft,
               322 U.S. at 155.
       In sum, without additional guidance from the Supreme Court, we will not assume that the
       five justices in Fulminante who determined that the harmless-error rule applies to coerced
       confessions intended the rule to apply in cases such as the one now before us, involving
       alleged police brutality and torture.
¶ 74       Citing People v. Mahaffey, 194 Ill. 2d 154 (2000), the State argues that the method of
       coercion is not a basis on which to distinguish this case from Fulminante. In Mahaffey, the
       defendant claimed, on postconviction review, that newly discovered evidence corroborated
       his pretrial claim that his confession was the product of police abuse at Area 2 and should
       have been suppressed. We held that the defendant was not entitled to an evidentiary hearing
       on this claim. Id. at 179.
¶ 75       The State is correct that in Mahaffey we considered the overwhelming evidence of the
       defendant’s guilt, concluding that the result of his trial would not have been different had the
       defendant’s confession not been admitted. Id. Although this analysis suggests this court was
       conducting harmless-error review, Mahaffey never employs the term “harmless error” or the
       phrase “harmless beyond a reasonable doubt.” In any event, whether harmless-error review
       is applicable to the erroneous admission of a coerced confession was not before us when we
       decided Mahaffey. Indeed, Mahaffey contains no discussion, or even a mention, of Wilson
       or Fulminante. Thus, we disagree with the State that our decision in Mahaffey necessarily
       militates in favor of applying harmless-error analysis in the instant case. To the extent
       Mahaffey may be read as implicitly adopting harmless-error review for admission of coerced


                                                -19-
       confessions, it is overruled.
¶ 76       The State argues that other jurisdictions have applied harmless-error review to claims of
       physically coerced confessions, urging this court to do the same. See Hinton v. Uchtman, 395
       F.3d 810 (7th Cir. 2005); United States v. Alwan, 279 F.3d 431 (7th Cir. 2002); Howard v.
       City of Chicago, No. 03 C 8481, 2004 WL 2397281 (N.D. Ill. 2004); Patterson v. Burge, 328
       F. Supp. 2d 878 (N.D. Ill. 2004); Key v. Artuz, No. 99-CV-161, 2002 WL 31102627
       (E.D.N.Y. 2002); Zuliani v. Texas, 903 S.W.2d 812 (Tex. App. 1995).
¶ 77       In Howard and Patterson, although the underlying cases involved claims of police
       brutality, the issue before the federal district court was the timeliness of the defendants’
       federal civil rights actions. In the context of determining when their causes of action accrued,
       the court, without discussion, observed that a coerced confession is subject to harmless-error
       review, citing Fulminante. Howard, 2004 WL 2397281 at *6; Patterson, 328 F. Supp. 2d at
       896. Howard and Patterson do not persuade us that harmless-error analysis is required in the
       present case, which involves a challenge to defendant’s conviction and not a limitations
       issue.
¶ 78       Key and Alwan are also not persuasive. Key involved the defendant’s habeas corpus
       claim that his confession was the product of physical coercion by police. Alwan involved a
       challenge to the admission of the defendant’s confession, allegedly obtained through duress
       and torture in Israel, at the defendant’s trial for contempt of court. Although in both cases the
       federal court, in cursory fashion, applied the harmless-error rule of Fulminante, in neither
       case was such an application necessary to the opinion. In Key, the federal district court had
       already determined that the defendant’s confession was not coerced (Key, 2002 WL
       31102627 at *7), and in Alwan the federal appeals court, which conducted plain-error review,
       had already found no error (Alwan, 279 F.3d at 438).
¶ 79       In Zuliani, also cited by the State, the Texas Court of Appeals applied Fulminante on
       direct appeal, holding that admission of the defendant’s confession, which was coerced
       through physical violence and threat of harm by police, was not harmless. The Texas court
       observed that one of the difficulties in applying Fulminante, which the court termed an
       “unusually structured opinion” (Zuliani, 903 S.W.2d at 824), is that the Supreme Court uses
       the terms “coerced confession” and “involuntary confession” interchangeably (id. at 823
       (quoting Fulminante, 499 U.S. at 287 n.3)). The Texas court also observed, as we have, that
       (1) the coercion or involuntariness at issue in Fulminante was not the result of physical
       violence; (2) Chief Justice Rehnquist “noted the propriety of applying harmless error analysis
       ‘where there are no allegations of physical violence on behalf of the police’ ”; and (3) the
       Supreme Court was not required to decide whether harmless-error analysis applies to
       violence-induced confessions. Id. (quoting Fulminante, 499 U.S. at 311). The Texas court
       continued:
               “Due to increasing police sophistication in the modern era, in the usual case it is
               psychological rather than physical coercion that is the claimed abuse. [Citation.] The
               present case, however, is a throwback to earlier practices that combine physical and
               psychological coercion. [Citation.] Without clearer directions, we conclude that we
               must apply a harmless error analysis in light of Fulminante.” Id. at 823-24.


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¶ 80        The Texas Court of Appeal’s struggle, in deciding whether harmless-error analysis
       should apply to a confession induced in part by physical violence, reinforces our belief that
       the issue of federal constitutional law before this court is not as settled as the State here
       would argue.
¶ 81        Finally, in Hinton, the federal appeals court considered the defendant’s petition for
       habeas corpus relief, in which he cited newly discovered evidence that his signed confession
       was obtained through police brutality at Area 2 headquarters. Lieutenant Jon Burge was in
       charge of Hinton’s interrogation. The defendant had testified that police officers physically
       beat him, smothered him, and electrocuted him, but produced no physical or other evidence
       in support of his claim. The trial court did not find his testimony credible. The federal
       appeals court affirmed the district court’s denial of the defendant’s habeas petition. Hinton,
       395 F.3d at 819. Citing Fulminante, the federal court determined that the admission of the
       defendant’s confession–assuming it was coerced–was harmless “due to the wealth of other
       corroborating evidence” at trial establishing the defendant’s guilt beyond a reasonable doubt.
       Id. at 820.
¶ 82        Judge Wood, in her concurrence, found it “somewhat disturbing,” given the gravity of
       the problem of police abuse at Area 2, to use the label of “harmless error.” Id. at 823 (Wood,
       J., concurring). Judge Wood observed that the Chicago police department’s OPS reports,
       which detail the abuse at Area 2, contain language “reminiscent of the news reports of 2004
       concerning the notorious Abu Ghraib facility in Iraq” (id. at 822), and that the conduct
       attributed to Burge, if proven, would violate the prohibitions in the United Nations
       Convention Against Torture, as well as the “fundamental human rights principles that the
       United States is committed to uphold” (id. at 823). Although Judge Wood knew of “no
       clearly established Supreme Court case that would have required the state court to recognize
       the error as structural in nature,” Judge Wood also acknowledged that the Supreme Court has
       never used the harmless-error doctrine in a coerced confession case where the coercion rose
       to the level of torture. Id.
¶ 83        Hinton, like Zuliani, reinforces our belief that Fulminante did not decide the issue of
       federal constitutional law squarely before us in the present case. See also United States v.
       Slater, 971 F.2d 626, 636 (10th Cir. 1992) (citing Fulminante for the proposition that absent
       “allegations of physical violence on behalf of the police, admission of an involuntary
       confession is subject to harmless error analysis”); United States v. Jenkins, 938 F.2d 934, 942
       (9th Cir. 1991) (“Because the Court was not faced with facts that necessitated its passing on
       whether harmless-error analysis applies even to brutality-induced confessions, it is unclear
       whether the Court intended to reach that issue in Fulminante.”).
¶ 84        Accordingly, we hold that harmless-error analysis is inapplicable to defendant’s
       postconviction claim that his confession was the product of physical coercion by police
       officers at Area 2 headquarters. The per se rule in Wilson, as modified above, stands: use of
       a defendant’s physically coerced confession as substantive evidence of his guilt is never
       harmless error. Defendant has satisfied the prejudice prong of the cause-and-prejudice test.
¶ 85        We reject the State’s argument that a per se rule will encourage frivolous claims of
       coerced confessions in successive postconviction petitions because of the purported ease with


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       which a defendant may now establish prejudice. The State’s argument overlooks that a
       defendant must first establish “cause” for not raising the claim during his or her initial
       postconviction proceedings. 725 ILCS 5/122-1(f) (West 2010). To establish cause, a
       defendant must identify “an objective factor that impeded his or her ability to bring the claim
       in his or her initial postconviction proceedings.” Id. Thus, a bare assertion that the
       defendant’s confession was physically coerced will not establish “cause” for purposes of the
       cause-and-prejudice test, and the per se rule will never come into play. See Pitsonbarger,
       205 Ill. 2d at 460-62. In cases, such as the present one, where the defendant does satisfy both
       prongs of the cause-and-prejudice test, the defendant is yet required to establish the
       allegations set forth in his postconviction petition. Satisfaction of the test merely allows the
       petition to proceed; it does not relieve the defendant of his evidentiary burden in the
       postconviction proceeding.

¶ 86                                              IV
¶ 87       Apart from its argument concerning the applicability of harmless-error review, the State
       advances no other argument or reason as to why defendant’s postconviction petition should
       not proceed. Accordingly, the only matter remaining is the proper disposition of this case.
       The appellate court remanded the matter for a third-stage evidentiary hearing on defendant’s
       second successive postconviction petition. 406 Ill. App. 3d at 53. The trial court’s order from
       which defendant sought review, however, merely denied defendant leave to file his
       postconviction petition. In an effort not to “short circuit” the process, we remand this matter
       for appointment of postconviction counsel and second-stage proceedings. See People v.
       Edwards, 197 Ill. 2d 239, 244-46 (2001) (detailing the three stages of postconviction
       proceedings).
¶ 88       In its amicus brief, the Chicago Innocence Project requests that this court instruct the trial
       court to permit amendment of defendant’s petition to include a claim of actual innocence
       based on affidavits it has secured from Williams, Benson, and Fowler.10 Defendant, however,
       has not requested such relief before this court. Whether amendment of defendant’s
       postconviction petition is desirable is an issue properly considered in the first instance by
       defendant and his appointed counsel. See People v. Pendleton, 223 Ill. 2d 458, 472 (2006)
       (describing duties of appointed counsel at the second stage of postconviction proceedings).

¶ 89                                    CONCLUSION
¶ 90       For the reasons stated, we affirm, as modified, the judgment of the appellate court
       reversing the trial court’s order denying defendant leave to file his second successive
       postconviction petition and remand to the trial court for appointment of postconviction
       counsel and second-stage postconviction proceedings.

               10
                  Photocopies of the three affidavits are appended to the amicus brief. In his affidavit,
       Williams recants his trial testimony. Benson, who did not testify at defendant’s trial, states in his
       affidavit that he never saw defendant punch or burn K.B. Fowler, who also did not testify, states in
       his affidavit that he did not see defendant in the upstairs bedroom where K.B. was assaulted.

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¶ 91   Affirmed as modified;
¶ 92   cause remanded with directions.




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