                                  Illinois Official Reports

                                          Appellate Court



                              People v. Jakes, 2013 IL App (1st) 113057




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ANTHONY JAKES, Defendant-Appellant.



District & No.               First District, Third Division
                             Docket No. 1-11-3057


Filed                        December 11, 2013


Held                         The denial of defendant’s postconviction petition alleging that two
(Note: This syllabus         detectives obtained his confession through the use of threats and
constitutes no part of the   beatings was reversed and the cause was remanded with directions to
opinion of the court but     allow defendant to seek discovery of evidence supporting his
has been prepared by the     allegations of official misconduct and to amend his petition based on
Reporter of Decisions        any such evidence he might discover, notwithstanding the State’s
for the convenience of       contention that there were no allegations of police misconduct at the
the reader.)                 time defendant’s motion for discovery was denied, since police
                             misconduct was adequately alleged in the initial petition and the trial
                             court abused its discretion in denying defendant’s motion for
                             discovery in relation to his petition.



Decision Under               Appeal from the Circuit Court of Cook County, No. 92-CR-5073; the
Review                       Hon. Nicholas Ford and the Hon. Michael Toomin, Judges, presiding.




Judgment                     Reversed and remanded.
     Counsel on               Loevy & Loevy, of Chicago (Tara Thompson, Jon Loevy, Russell
     Appeal                   Ainsworth, and Debra Loevy-Reyes, of counsel), for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                              Christine Cook, Assistant State’s Attorneys, of counsel), for the
                              People.




     Panel                    JUSTICE NEVILLE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hyman and Justice Mason concurred in the
                              judgment and opinion.


                                             OPINION


¶1         This case involves a postconviction petitioner’s right to discovery. A jury found Anthony
       Jakes guilty of murder, based largely on a confession Jakes signed after questioning by
       Detectives Michael Kill and Kenneth Boudreau. Jakes testified that he signed the statement
       because Kill beat him and threatened him while Boudreau watched. Kill and Boudreau denied
       that they beat or threatened Jakes. The jury and the trial court that assessed the credibility of
       Kill, Boudreau and Jakes never heard evidence that Kill and Boudreau beat and threatened
       suspects in other cases to obtain signed confessions and that they committed perjury to
       convince courts and juries to rely on the coerced confessions.
¶2         Jakes filed a postconviction petition and he sought discovery concerning the misconduct of
       Kill and Boudreau in other cases. The circuit court denied the motion for discovery and then
       held that the evidence Jakes presented without discovery did not sufficiently establish Kill’s
       pattern and practice of beating and threatening suspects to get them to sign confessions. The
       circuit court dismissed the postconviction petition without holding an evidentiary hearing on
       the allegations of Kill’s and Boudreau’s misconduct. We hold that the trial court abused its
       discretion when it denied Jakes’ motion for discovery concerning the misconduct of Kill and
       Boudreau in other cases. We reverse and remand for further proceedings on the postconviction
       petition.

¶3                                      BACKGROUND
¶4        On September 15, 1991, a police officer found Rafael Garcia lying in the street, dying from
       multiple gunshot wounds, next to a car with a broken window on the passenger side. Around
       12:30 p.m. the following day, Officer Thomas Pack went to a home near the murder scene
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     where Jakes, then 15 years old, lived with his aunt, Jessie Mae Jones. After entering the home,
     Officer Pack permitted Jakes to put on his clothes, and then Pack took Jakes to police
     headquarters. Kill and Boudreau began interviewing Jakes after 4 p.m. Police also picked up
     Gus Robinson on September 16, 1991, for questioning about the murder of Garcia. Around
     4:30 a.m. on September 17, 1991, Jakes signed a statement an assistant State’s Attorney wrote
     out. Robinson signed a statement around the same time, after eight hours of questioning.
¶5       According to the statement Jakes signed, on September 15, 1991, Arnold Day, a friend of
     Jakes, asked Jakes to watch for police while Day robbed a man he saw in a nearby sandwich
     shop. As Jakes walked to the corner, he met Robinson. He asked Robinson to help him watch
     for police. Robinson refused to help and drove off. Jakes told Day he saw no police in the area.
     When the intended victim left the sandwich shop, Day said to him, “This is a stickup.” The
     man ran to his car and started it. Day then shot the man through the car’s passenger window.
     Jakes ran home. He looked out at the street and saw the man moving on the ground.
¶6       Photographs taken on September 18, 1991, one day after Jakes signed the statement,
     showed that Jakes had several fresh bruises. A doctor examined Jakes in custody on September
     20, 1991.
¶7       Robinson signed a statement that said that on September 15, 1991, Jakes, who knew
     Robinson from the neighborhood, asked Robinson to help watch for police while Day robbed a
     man. Robinson refused to help. As he drove away, he heard some gunshots.
¶8       Prosecutors charged Jakes with murder and attempted robbery. Jakes moved to quash his
     arrest and suppress the statement he signed. At the hearing on the suppression motion, the State
     admitted that police had no warrant when they picked up Jakes from his home. Jakes testified
     that when police came to his home on September 16, 1991, they slammed him against a wall
     and handcuffed him. At the police station, one of the officers put his hands in Jakes’ pocket
     then showed Jakes a tinfoil packet that the officer said held cocaine. Jakes did not know where
     the tinfoil packet came from. Kill accused Jakes of shooting Garcia. When Jakes said he knew
     nothing about it, Kill slapped him and threatened to push him out a window. Kill said some
     Latin Kings would attack Jakes’ family, if Kill asked them to do so. Kill knocked Jakes on the
     floor and kicked him while Boudreau watched. Jakes identified the photographs taken on
     September 18, 1991, and he testified that the photographs showed the injuries Kill inflicted on
     Jakes’ arm, leg, side, stomach and back. Jakes eventually signed the statement the assistant
     State’s Attorney wrote out. Jakes admitted that he did not tell the doctor at the jail, the police,
     or the assistant State’s Attorney how he sustained the injuries. Because of Kill’s beating and
     threats, Jakes signed the statement that said police treated him well. Jakes testified that he did
     not get into any physical fight on September 15 or 16 before he came to the police station, and
     he never said to any officer that such a fight had occurred.
¶9       Jakes’ aunt, Jones, testified that police entered her home without her permission and
     brought Jakes out of his bedroom in handcuffs. Pack testified that Jones permitted him and
     other officers to enter and go to Jakes’ bedroom. According to Pack, police did not handcuff
     Jakes in his home. Jakes agreed to come to the police station for questioning. Pack found the
     tinfoil packet of cocaine in the pocket of the pants Jakes chose to put on when police picked
     him up for questioning. Pack arrested Jakes at the police station after finding the drugs.
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¶ 10        Kill testified that he never struck or threatened Jakes, and Jakes volunteered information
       about the murder and his contact with Robinson. Boudreau testified that Jakes told him that
       three black men fought with him on September 16, 1991. The prosecution argued that the fight,
       and not police brutality, explained Jakes’ bruises.
¶ 11        The trial court found the testimony of the officers more credible than the testimony of Jakes
       and Jones. The court denied the motion to quash the arrest and suppress the statement.
¶ 12        At trial, Robinson testified in accord with the statement he signed. Robinson, who had two
       prior felony convictions, admitted that prosecutors agreed not to charge him with contempt for
       failing to show up for a scheduled court date if he testified in accord with the statement an
       assistant State’s Attorney wrote out and Robinson signed.
¶ 13        Police officers testified about their investigation into Garcia’s murder. No physical
       evidence or testimony, apart from Robinson’s statement, tied Jakes to the crime. The assistant
       State’s Attorney read into the record the statement Jakes signed. The statement included no
       verifiable, correct details about the crime that the police did not know before questioning
       Jakes.
¶ 14        Jakes again testified about the circumstances of his arrest and the beating and threats that
       caused him to sign the false statement. Kill repeated his testimony that Jakes volunteered the
       confession, including the encounter with Robinson. Kill swore that he did not coerce or
       threaten Jakes in any way. Boudreau corroborated Kill’s testimony, swearing that he never saw
       any officer strike or threaten Jakes.
¶ 15        The jury found Jakes guilty of armed robbery and murder. The trial court sentenced Jakes
       to 40 years in prison for murder and 15 years for attempted armed robbery, with the sentences
       to run concurrently. The appellate court affirmed the conviction and sentences on direct
       appeal. People v. Jakes, No. 1-93-4471 (1995) (unpublished order under Supreme Court Rule
       23).
¶ 16        In 1996, Jakes filed a postconviction petition and the circuit court appointed counsel to
       represent him in postconviction proceedings. Counsel sought multiple continuances in a quest
       for evidence to support Jakes’ assertion in his postconviction petition that Kill beat him and
       threatened him to induce him to sign the false statement used as evidence at trial. Due to an
       ongoing investigation into criminal conduct by several police officers, including Kill and
       Boudreau, counsel had very limited access to evidence that Kill and Boudreau coerced other
       suspects to sign confessions and committed perjury to obtain convictions based on the coerced
       confessions.
¶ 17        In 2004, counsel finally stopped trying to obtain evidence of misconduct by Kill and
       Boudreau in other cases to support Jakes’ postconviction petition. The attorney filed a
       supplement to Jakes’ postconviction petition, adding allegations of ineffective assistance of
       trial and appellate counsel. The attorney asserted that Jakes’ trial counsel had failed to
       investigate the crime scene adequately. If trial counsel had thoroughly investigated the crime
       scene, he would have realized that Jakes could not have seen Garcia dying on the street from
       his window because no window in the home Jakes shared with Jones had a view of the street.
       According to the supplement to the postconviction petition, the evidence of a false assertion in

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       the written statement Jakes signed would have supported Jakes’ testimony at trial that he
       signed the false statement because Kill beat and threatened him while Boudreau watched.
¶ 18       The circuit court granted the State’s motion to dismiss the postconviction petition and its
       supplement. The appellate court held that, in this case, with very closely balanced evidence,
       the petition and its supporting documents substantially showed that Jakes received ineffective
       assistance of trial counsel for failure to adequately investigate the crime scene and ineffective
       assistance of appellate counsel for failure to raise ineffective assistance of trial counsel on the
       direct appeal. People v. Jakes, No. 1-04-1388 (2006) (unpublished order under Supreme Court
       Rule 23). Accordingly, the appellate court reversed the dismissal of the postconviction petition
       and remanded the case for an evidentiary hearing. Jakes, No. 1-04-1388. The appellate court
       noted that Jakes and his postconviction counsel, through no fault of their own, had not
       produced evidence from other victims to support his claims of police brutality and perjury. The
       appellate court said, “since this case is being reversed and remanded, Jakes may amend his
       petition and address his police brutality claim on remand.” Jakes, No. 1-04-1388, slip op. at
       17-18.
¶ 19       On remand, Jakes filed a motion for discovery of evidence of past misconduct by Kill and
       Boudreau to impeach their testimony and support Jakes’ claim regarding the statement he
       signed. The circuit court denied the motion for discovery. Instead, the court told counsel that if
       Jakes wished to pursue his misconduct claims against Kill and Boudreau, he needed to file a
       supplemental petition based on evidence he could present without discovery.
¶ 20       Counsel filed an amended postconviction petition to further support Jakes’ claim, in the
       original postconviction petition, that Kill threatened him and Kill and Boudreau lied under
       oath about the way they obtained Jakes’ signature on the statement the assistant State’s
       Attorney wrote. Jakes alleged, with supporting documents, that Kill participated in the beating
       and intimidation of Alnoraindus Burton in 1989; Mark Craighead in 1989; Jason Gray in 1986;
       Harold Hill in 1992; Ronald Kitchen in 1988; Anthony Robinson in 1988; Johnny Walker in
       1988; Phillip Walker in 1987; Demond Weston in 1990; Marcus Wiggins in 1991; Anthony
       Williams in 1992; and Eric Wilson in 1988. Jakes also alleged that Boudreau participated in
       the beating and intimidation of Arnold Day in 1992; Fred Ewing in 1993; Derrick Flewellen in
       1995; Jerry Gillespie in 1993; Oscar Gomez in 1995; Harold Hill in 1992; Alfonzia Neal in
       1991; John Plummer in 1992; Tyrone Reyna in 1993; Clayborn Smith in 1992; Darnell Stokes
       in 1993; Michael Taylor in 1994; Sean Tyler in 1994; Kilroy Watkins in 1992; Peter Williams
       in 1992; and Dan Young in 1992. The supporting documents included a few affidavits of the
       alleged victims, some complaints in lawsuits brought by the alleged victims, some decisions of
       appellate courts recounting the records in criminal cases brought against other alleged victims
       of Kill and Boudreau, and some transcripts of testimony in other lawsuits.
¶ 21       The State moved to dismiss all allegations of misconduct committed by Kill and Boudreau.
       The circuit court first dismissed as irrelevant all allegations of Boudreau’s extensive history of
       misconduct, because Jakes testified only that Boudreau watched while Kill beat him and
       threatened him. Next, the court struck as too remote in time all allegations of Kill’s misconduct
       before 1988, and all allegations supported by documents other than affidavits of the alleged
       victims. Even when the alleged victim testified about Kill’s crimes, the circuit court refused to
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       accept the testimony as grounds for an evidentiary hearing on the allegations or for permitting
       further discovery about the allegations. The circuit court eliminated from its consideration
       evidence related to all of Kill’s and Boudreau’s alleged victims other than Burton and Kitchen.
       The court then held that those two examples could not make enough of a pattern to support
       Jakes’ claim, and therefore the circuit court dismissed all of Jakes’ claims related to the
       misconduct of Kill and Boudreau.
¶ 22       At the hearing on Jakes’ claim that his trial counsel provided ineffective assistance, his trial
       counsel testified that he drove to the crime scene and looked around through his car window,
       but he felt no need to inspect the scene more closely. He did not try to determine whether Jakes
       could have seen the street from his home because he did not consider the assertion that Jakes
       saw Garcia dying on the street a significant part of the statement Jakes signed. The attorney
       also said that he did not like to call police officers liars, so he did not want to challenge the
       credibility of Kill and Boudreau.
¶ 23       The circuit court agreed with Jakes’ trial counsel that the fact that Jakes could not have
       seen Garcia from his window constituted only an “inconsequential contradiction” that could
       not have persuaded the jury that Kill and Boudreau decided what should go into the statement
       to make it a credible confession, and that Jakes signed the false statement to stop the beatings
       and threats. The court denied the postconviction petition. Jakes now appeals.

¶ 24                                           ANALYSIS
¶ 25        Because the circuit court dismissed the allegations of police misconduct without holding
       an evidentiary hearing, we review the dismissal of those allegations de novo. People v. Fair,
       193 Ill. 2d 256, 260 (2000). The circuit court has discretion to order discovery in
       postconviction proceedings. Fair, 193 Ill. 2d at 264. The circuit court should permit discovery
       if the moving party establishes good cause for the request. Fair, 193 Ill. 2d at 264-65. The
       court should consider “the totality of the relevant circumstances, including the issues presented
       in the petition, ‘the scope of the discovery sought, the length of time between the conviction
       and the post-conviction proceeding, the burden [of granting discovery,] and the availability of
       the desired evidence through other sources.’ ” People v. Smith, 352 Ill. App. 3d 1095, 1113
       (2004) (quoting People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183-84 (1988)). The
       appellate court should reverse the circuit court’s decision on a request for discovery in a
       postconviction proceeding only if the trial court abused its discretion. Fair, 193 Ill. 2d at 265.
¶ 26        The State argues that the trial court correctly denied the motion for discovery because at the
       time of the motion, the postconviction petition included no allegations of police misconduct.
       The State’s argument rests on a mistake. The initial postconviction petition, filed years before
       the discovery motion, included several allegations of police misconduct, and the discovery
       counsel sought would lend support to those allegations. Counsel’s decision not to repeat those
       allegations in his own submission to the court, labeled a supplement to the postconviction
       petition, does not remove the allegations from the petition. Before defense counsel requested
       discovery concerning police misconduct, the postconviction petition adequately alleged police
       misconduct.

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¶ 27       Our supreme court addressed the issue of postconviction discovery in Fair, 193 Ill. 2d 256.
       In Fair, Judge Foxgrover presided at Fair’s jury trial on a murder charge. The jury found Fair
       guilty. In a postconviction petition, Fair alleged that Foxgrover’s corruption violated Fair’s
       right to a fair trial. Foxgrover had pled guilty to 159 crimes, including theft, official
       misconduct, obstruction of justice and perjury. Fair sought discovery of evidence the State’s
       Attorney’s office gathered in its investigation into Foxgrover’s corruption. In particular, Fair
       requested Foxgrover’s confession and the interviews the State’s Attorney’s office conducted
       with witnesses to Foxgrover’s crimes. The circuit court denied the request for discovery.
¶ 28       Our supreme court acknowledged that Fair’s postconviction petition lacked specificity
       concerning Foxgrover’s corruption and its effect on the case against Fair. Fair, 193 Ill. 2d at
       266. The Fair court said:
                   “The State argues that petitioner has not established good cause for his discovery
               request because nothing in the post-conviction petition suggests that a nexus exists
               [between Foxgrover’s crimes and the trial of Fair]. The State’s argument, however,
               puts petitioner in an impossible dilemma. According to the State, petitioner is entitled
               to seek out evidence that there is a nexus between Judge Foxgrover’s criminal conduct
               and petitioner’s trial only if he already possesses such evidence. The State also argues
               that allowing petitioner to conduct discovery will further delay the adjudication of this
               case. *** The finality of criminal convictions is a hollow achievement if the integrity of
               the judicial system which produces these convictions is open to question. Petitioner is
               entitled to an opportunity to find and present whatever evidence there may be which
               connects Judge Foxgrover’s criminal conduct to his ability to be an impartial judge at
               petitioner’s murder trial.” Fair, 193 Ill. 2d at 266-67.
¶ 29       Jakes’ petition included much more detail about the alleged official misconduct than the
       petition in Fair. Especially because the court found the allegations about most of the other
       alleged victims of Kill and Boudreau inadequately supported, irrelevant and insufficient to
       prove a pattern of coerced confessions and perjury, the detail included in the petition does not
       excuse the decision to deny discovery. The State’s Attorney’s office here, as in Fair, has much
       better access than the defense to evidence concerning the alleged official misconduct. The
       evidence of Kill’s and Boudreau’s misconduct in other cases can alter the relative credibility of
       Jakes, Jones, Kill and Boudreau in their testimony both at trial and at the hearing on the motion
       to suppress the statement Jakes signed. See People v. Mitchell, 2012 IL App (1st) 100907,
       ¶¶ 70-72. Following Fair, we find that the trial court abused its discretion when it denied
       Jakes’ motion for discovery related to his postconviction petition.
¶ 30       On remand, the circuit court should permit discovery of materials including “ ‘not only
       what is admissible at the trial, but also that which leads to what is admissible.’ ” People v.
       Kladis, 2011 IL 110920, ¶ 26 (quoting Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 41
       (1956)). The court should ensure that the parties use discovery to “ ‘enhance the truth-seeking
       process, to enable attorneys to better prepare for trial, to eliminate surprise and to promote an
       expeditious and final determination of controversies in accordance with the substantive rights
       of the parties.’ ” Kladis, 2011 IL 110920, ¶ 27 (quoting D.C. v. S.A., 178 Ill. 2d 551, 561
       (1997)). The court will need to determine whether the materials sought will help lead the
                                                   -7-
       defense to find evidence that “ ‘tends to prove or disprove something in issue.’ ” Kladis, 2011
       IL 110920, ¶ 27 (quoting Bauter v. Reding, 68 Ill. App. 3d 171, 175 (1979)).
¶ 31       Because the matters in issue involve alleged beatings and threats by Kill, the court should
       permit discovery of evidence that affects the credibility of the testimony of Kill and Boudreau
       about the means by which they persuaded Jakes to sign the statement the assistant State’s
       Attorney wrote. Evidence of other cases in which Kill and Boudreau coerced confessions
       directly relates to the issues here. Evidence that Kill and Boudreau lied under oath in other
       proceedings, especially when those proceedings involved statements signed following
       interrogations by Kill or Boudreau, also should affect the credibility of their testimony here.
       See People v. Patterson, 192 Ill. 2d 93, 145 (2000). The court must permit sufficient discovery
       to establish a pattern or practice of coerced confessions and perjury, if Kill or Boudreau
       engaged in such practices. See Patterson, 192 Ill. 2d at 140. Kill himself, in a deposition, swore
       that he obtained confessions in 90% of the murder cases on which he worked, for a total of
       about 1,500 murder confessions in his career. He added that in 90% of those cases, defense
       attorneys filed motions to suppress “based on allegations of unnecessary use of physical
       force.”
¶ 32       The State argues that the trial court correctly held evidence that Boudreau beat other
       suspects and coerced them into signing confessions has no relevance here, because Jakes
       swore only that Boudreau watched Kill beating Jakes, and Jakes did not say Boudreau hit him.
       The State ignores the added coercive power that a second police officer brings to an enclosed
       interview room simply by watching while another officer brutally beats a suspect and verbally
       threatens to do worse. The officer’s silent acceptance of the crime committed by a fellow
       officer can help persuade their victim that no one associated with police will help him and he
       will face worse beatings if he tells a police officer, an assistant State’s Attorney, or a doctor
       working for the State about the beatings. Moreover, Boudreau’s testimony both at trial and on
       the motion to suppress puts his credibility in issue, and evidence that he committed perjury in
       other cases could significantly affect the credibility of his testimony here.
¶ 33       In light of our resolution of the discovery issue, we elect to wait to address the issue of
       whether the evidence presented at the evidentiary hearing requires reversal and remand for a
       new trial. We remand for discovery and a new evidentiary hearing.

¶ 34                                        CONCLUSION
¶ 35       Jakes’ initial postconviction petition included allegations that Detectives Kill and
       Boudreau used beatings and threats to persuade Jakes to sign a false confession and then lied
       under oath about the beatings and threats. The allegations of official misconduct merited
       discovery of any evidence in the State’s possession that could support Jakes’ allegations. Jakes
       may amend his postconviction petition in light of the discovery of evidence of other
       misconduct by Kill and Boudreau. The State may respond to the amended petition. The
       evidence provided in discovery may require a new evidentiary hearing, at which Jakes could
       present evidence that Kill and Boudreau have beaten suspects, coerced confessions, and
       provided perjured testimony in other cases. This court will review the trial court’s findings
       after the trial court has held an appropriate evidentiary hearing, for which defense counsel has
                                                     -8-
       access to evidence bearing on the credibility of the testimony of Kill and Boudreau.
       Accordingly, we reverse the trial court’s judgment and remand for further proceedings on the
       postconviction petition.

¶ 36      Reversed and remanded.




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