                                                                     FOURTH DIVISION
                                                                     December 2, 2010


No. 1-08-0425

THE PEOPLE OF THE STATE OF ILLINOIS,                  )              Appeal from the
                                                      )              Circuit Court of
       Plaintiff-Appellee,                            )              Cook County.
                                                      )
v.                                                    )              No. 82 C 8655
                                                      )
STANLEY WRICE,                                        )              Honorable
                                                      )              Evelyn B. Clay,
       Defendant-Appellant.                           )              Judge Presiding.

       JUSTICE O'BRIEN delivered the opinion of the court:

       Defendant, Stanley Wrice, appeals the order of the circuit court denying him leave to file a

second successive postconviction petition alleging his confession was the product of torture

perpetrated by police officers at Area 2 Police Headquarters (Area 2). The petition referenced the

Report of the Special State's Attorney released in 2006 that found proof beyond a reasonable doubt

that police officers under the command of Jon Burge at Area 2 and Area 3 had engaged in the torture

of criminal suspects. Defendant contends the Report of the Special State's Attorney satisfies the

cause-and-prejudice test allowing for the filing of the second successive postconviction petition. We

reverse and remand for a third-stage evidentiary hearing on defendant's second successive

postconviction petition.

       In the early morning hours on September 9, 1982, police arrested defendant at his home along

with Charles Wrice, Bobbie Joe Williams, and Rodney Benson. Defendant was a suspect in the sexual

assault of K.B. (the victim), which occurred on September 8, 1982, at defendant's home in Chicago.

Before trial, the court held a hearing on defendant's motion to suppress his confession to police.

Defendant alleged his confession was involuntary because Sergeant John Byrne and Detective Peter
No. 1-08-0425

Dignan severely beat him in the basement of Area 2 to coerce the confession.

        At the hearing, defendant testified that after police arrested him, they brought him to a room

on the second floor of Area 2. Approximately 45 minutes later, Sergeant Byrne and Detective Dignan

came into the room and asked defendant to tell them what had happened at his home earlier that

morning. Defendant responded that he, Bobby Williams, and Rodney Benson had gone to a store and

then returned home. Not satisfied with that answer, Detective Dignan asked defendant to stand up,

"unhandcuffed" his hand from the ring on the wall, and told him he was "fixing to do some police

brutality."

        Defendant testified Sergeant Byrne and Detective Dignan took him to a basement room at

Area 2. Detective Dignan told defendant that if he confessed, he would not be in the room long.

Sergeant Byrne again asked defendant about what had occurred at his home earlier that morning, and

defendant repeated what he had told the officers earlier. Sergeant Byrne told defendant he was lying

and hit him on the forehead with a flashlight that was approximately 15 or 16 inches long. Detective

Dignan struck defendant on the leg with a solid piece of rubber and told him to tell the truth.

Defendant repeated he already had told them everything he knew.

        Defendant testified Sergeant Byrne and Detective Dignan took him upstairs and placed him

in a room with a camera.      Approximately an hour and a half later, they took him back to the

basement room and told him Rodney Benson had implicated him in the offenses. Detective Dignan

struck defendant on the leg with the piece of rubber. Sergeant Byrne struck defendant on the right

arm with the flashlight, while Detective Dignan struck him on the left arm. Sergeant Byrne then told

defendant to stand up. He did so. Sergeant Byrne turned defendant around so his back was facing


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them, put his hands over his head, and kicked his legs apart. Then Sergeant Byrne hit defendant

multiple times in the groin with the flashlight. Detective Dignan also hit defendant in the groin with

the piece of rubber.

        Defendant testified they took him upstairs to speak with Assistant State's Attorney (ASA)

McCurry. Detective Dignan never left the room during his discussion with ASA McCurry.

ASA McCurry testified defendant made a statement at approximately 1 p.m. and again at

approximately 1:30 p.m. and that Detective Dignan was present during both interviews.

        Karem Ali I. Abdal-Aziz, a Cook County paramedic, examined defendant on September 10,

1982, after his arrest. Defendant told Mr. Abdal-Aziz he had an injury on the left side of his head and

other injuries resulting from blunt trauma. Defendant stated he had an injury to his groin, thighs or

kneecaps, right and left biceps, left shoulder, right hand, and his breastbone or sternum. Mr. Abdal-

Aziz asked defendant how long he had suffered from those injuries, and defendant replied, "one day."

Mr. Abdal-Aziz testified he did not personally observe the injuries to defendant's groin or to his thighs

or kneecaps because defendant only took his clothes off from the waist up. Mr. Abdal-Aziz filled out

a form indicating he observed defendant's injuries from the waist up; however, Mr. Abdal-Aziz also

testified he had no independent recollection of viewing those injuries.

        Doctor Stanley Harper, a physician with Cermak Health Services, examined defendant on

September 15, 1982. Defendant told Doctor Harper that one week earlier, Chicago police officers

had beaten him with a flashlight and billy club. Defendant complained of pain in his groin, blood in

his urine 24 to 48 hours after the attack, and scrotal tenderness. Doctor Harper found no lacerations

or masses of the scrotum. Doctor Harper noted multiple healing bruises on defendant's left anterior


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leg. Doctor Harper concluded defendant had a history of multiple blunt trauma.

       Sergeant Byrne and Detective Dignan testified they did not beat defendant, nor did they see

anyone else beat defendant.

       The circuit court denied defendant's motion to suppress, finding the officers to be credible.

       The cause proceeded to a jury trial. Testimony at trial established that on September 9, 1982,

the victim, who had been drinking all day, was walking to a liquor store when several men in a car

approached her. One of the men later was identified as defendant. The victim agreed to ride with

them to the liquor store. When she realized the men were not driving her to the liquor store, she

requested they let her out of the car. Instead, they drove her to defendant's residence on South

Chappel Avenue, in Chicago. While at defendant's residence, she was beaten, burned, and raped.

       Kenneth Lewis testified he was on the first floor of defendant's house while the defendant and

others were upstairs with the victim. At some point, Mr. Lewis went upstairs and saw several men

have sexual intercourse with the victim and he saw defendant hit the victim. Mr. Lewis also stated

he tried to pull defendant off the victim. After defendant stopped hitting her, Mr. Lewis went

downstairs. Later, defendant came downstairs and picked up an iron from the stove. Mr. Lewis took

the iron from him and defendant went back upstairs. Mr. Lewis heard slapping sounds so he went

upstairs and saw defendant beating the victim.

       Mr. Lewis stated he later left the house. When he returned, he went upstairs and found the

victim lying on the bed. There were burn marks in the shape of an iron on her breast and legs and she

was burned from her head to her toe. Mr. Lewis returned downstairs. Shortly thereafter, defendant

came downstairs and took a hot spoon off the stove. Defendant returned upstairs, at which point Mr.


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Lewis heard the victim ask, "Why are you burning me?" Then he heard the victim falling down the

stairs and again saw defendant strike her.

       The State's second witness, Bobbie Joe Williams, testified he observed defendant have sexual

intercourse with the victim. Mr. Williams stated he saw defendant take an iron off the top of the

stove and walk upstairs. The next morning, defendant told him they had "burned that bitch."

       ASA Kenneth McCurry testified that at approximately 1:35 p.m. on September 9, 1982,

defendant made an oral confession. Defendant stated that at about 11 p.m. on the night before, he

saw Rodney Benson in a car with the victim. Defendant and Bobbie Jo Williams then walked to

defendant's home at 7618 South Chappel. About 10 minutes later, Mr. Benson came to the door and

asked to use a bed. Defendant replied affirmatively, and Mr. Benson came inside with the victim and

took her to a room on the second floor. Defendant later went into the room, where he saw the victim

and Mr. Benson, Lee Holmes and Michael Fowler. A man who had come over on a bicycle was

having sex with the victim. After they finished, Mr. Benson had sex with her too. Mr. Benson was

slapping and hitting the victim while they were having sexual intercourse.

       Defendant further stated to ASA McCurry that another man came upstairs with a hot iron.

Mr. Benson took the iron and burned the victim over most of her body. Then defendant took the iron

from Mr. Benson and dropped it on the victim's thighs.

        Doctor Nolan Lewis testified he saw the victim at the burn unit of the Loyola Medical Center,

where she was in the intensive care unit. Her injuries extended from her head to her toes and were

predominantly bruises and burns. There were approximately 100 bruises varying in size from that of

a dime all the way up to two or three inches in diameter. Her face was swollen with two burns on


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the right side of her face and chin with some minor burns around the corner of her mouth. Her neck

was bruised. A large area on the left side of her chest and extending to her breast had been burned

by a clothing iron. It was a second-degree burn. She had second-degree burns on her thighs that also

were inflicted by an iron. A second-degree burn is one only partly through the skin; the bottom layer

of the skin is preserved so that the skin can regenerate and heal on its own. There was a third-degree

burn on her right breast over her nipple. A third-degree burn means the burn is all the way through

the skin and that the full thickness of the skin is destroyed. There were burns and bruises of a

superficial nature on her abdomen and on the lower part of her trunk.

       Doctor Lewis testified the main injuries were to the victim's back. The upper part had third-

degree burns. Her deepest burns were on her buttocks in the shape of an iron. There were also third-

degree burns on her upper thighs on the back that had been inflicted by something other than an iron.

Because the burns were of a third-degree and of a large area, there had to be skin grafting performed

11 days later. The grafting was done on her right breast, upper back, and buttocks. As a result of

the surgery, the victim lost a portion of her right nipple. Most of her buttocks required skin grafting.

The burns covered at least 80% of her back. The scarring from the burns and the skin graft is

permanent.

       Defendant testified he was in the house at the time of the offense, but he did not participate

in the rape and did not know the victim was being raped. He testified he saw a woman with several

men in his upstairs quarters but did not inquire as to why they were there. Defendant testified

consistently with his testimony at the motion to suppress regarding Sergeant Byrne and Detective

Dignan beating him during his interrogation. Defendant also testified he never confessed to ASA


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No. 1-08-0425

McCurry about participating in the offenses.

       Defendant's sister, Patricia Wrice, testified she lived in the downstairs rooms of defendant's

residence. She testified several men took a woman to the upstairs rooms and engaged in sexual

intercourse, but she never saw defendant go upstairs. However, she also testified that at the time the

men were upstairs with the victim, she was in her downstairs bedroom, but defendant was not in the

bedroom with her during this time.

       The jury convicted defendant of rape, deviate sexual assault, armed violence, and unlawful

restraint. The circuit court sentenced defendant to a 60-year term of imprisonment for rape and 40

years' imprisonment for deviate sexual assault, to run consecutively; 7 years for armed violence, to

run concurrently; and 5 years for unlawful restraint, to run concurrently.

       Defendant filed a direct appeal, arguing: (1) the State failed to prove him guilty beyond a

reasonable doubt; (2) the circuit court abused its discretion by admitting photographs of the victim

into evidence and allowing the jurors to view them in the jurors' room; (3) his aggregate sentence was

excessive; (4) the circuit court abused its discretion in imposing extended sentences for the rape and

deviate sexual assault convictions; (5) the circuit court abused its discretion in convicting him of

unlawful restraint; and (6) the jury instructions on the armed violence conviction were a violation of

his due process rights. See People v. Wrice, 140 Ill. App. 3d 494, 496 (1986).

       The appellate court affirmed defendant's convictions and sentences for rape and deviate sexual

assault, but vacated the armed violence and unlawful restraint convictions and sentences. Wrice, 140

Ill. App. 3d at 502.

       On April 2, 1991, defendant filed a pro se postconviction petition. Defendant alleged, among


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other claims, that he suffered a violation of his constitutional rights when Sergeant Byrne and

Detective Dignan beat him at Area 2. The circuit court summarily dismissed defendant's pro se

postconviction petition. The appellate court affirmed the dismissal. See People v. Wrice, No. 1-91-

2332 (February 14, 1994) (unpublished order under Supreme Court Rule 23).

       On May 13, 2000, defendant filed his first successive postconviction petition. Defendant

alleged, among other claims, that his confession was involuntary because he was tortured by Sergeant

Byrne and Detective Dignan. The circuit court appointed counsel to represent defendant and later

granted the State's motion to dismiss.

       Defendant filed a motion to reconsider and attached multiple reports from the Office of

Professional Standards (OPS), the investigative arm of the Chicago police department, detailing its

investigation of physically abusive interrogation techniques committed by Chicago police officers at

Area 2 under the command of Jon Burge. Specifically, OPS "sustained" the following allegations of

abuse, meaning the OPS investigator found the allegations were proven by a preponderance of the

evidence: (1) on October 29, 1983, while at Area 2, Sergeant Byrne struck Gregory Banks about the

chest and stomach with a flashlight during an interrogation, failed to report to OPS his use of

excessive force against Mr. Banks, and later gave false testimony that Mr. Banks was not abused

while in police custody; (2) on October 29, 1983, Detective Dignan failed to report to a supervisor

the use of excessive force against Mr. Banks and later gave a false statement to OPS regarding the

use of excessive force against Mr. Banks; (3) on November 3, 1984, Sergeant Byrne struck Stanley

Howard repeatedly about the body with his fists and repeatedly kicked Mr. Howard about the left leg

while inside an interview room at Area 2; (4) on January 28, 1984, while inside an interview room


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at Area 2, Detective Dignan removed Thomas Craft's shoes and ground the heel of his thick-soled

shoes into the top of Mr. Craft's feet; (5) on November 2, 1983, in a wooded area behind the Altgeld

Gardens, Detective Dignan stuck a shotgun into Darrell Cannon's mouth three times and each time

pulled the trigger, although the shotgun was not loaded; (6) on November 2, 1983, in a wooded area

behind the Altgeld Gardens, Detective Dignan lifted Mr. Cannon off the ground while Sergeant Byrne

held him by the handcuffs up in the air; and (7) Sergeant Byrne applied a cattle prod and

electroshocked Mr. Cannon in his testicles and applied a gun to Mr. Cannon's head.

        The circuit court denied defendant's motion for reconsideration, finding the petition was

untimely and did not satisfy the criteria for consideration of a successive petition. The appellate court

affirmed. See People v. Wrice, No. 1-01-1697 (December 31, 2003) (unpublished order under

Supreme Court Rule 23).

        Meanwhile, in April 2002, the presiding judge of the criminal division of the circuit court of

Cook County appointed a Special State's Attorney to investigate the allegations of police torture and

abuse committed by Jon Burge, a commander within the Chicago police department during the 1980s

and early 1990s, and the officers acting under his command at Area 2 and Area 3. The Report of the

Special State's Attorney (sometimes referred to herein as the Report) was released on July 19, 2006.

        The Special State's Attorney determined "the admissible evidence would justify *** asking

a grand jury to indict in three cases: they are the cases of Andrew Wilson, Phillip Adkins, and Alfonso

Pinex. There are many other cases that raised the belief that the claimant was telling the truth, e.g.

Michael Johnson, Melvin Jones and Shadeed Mumin, but their testimony would not be sufficient to

establish proof beyond a reasonable doubt." Report of the Special State's Attorney 12 (July 19,


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2006). The Special State's Attorney concluded Mr. Burge was guilty of prisoner abuse and "[it]

necessarily follows that a number of those serving under his command recognized that, if their

commander could abuse persons with impunity, so could they." Report of the Special State's

Attorney 16 (July 19, 2006). However, the statute of limitations barred prosecution of any of the

officers.1 Report of the Special State's Attorney 13 (July 19, 2006).

       In his Report, the Special State's Attorney specifically named Detective Dignan and Sergeant

Byrne as officers accused of making false statements regarding their torture of prisoners. Report of

the Special State's Attorney 33-34 (July 19, 2006).         The Special State's Attorney declined

prosecution, though, because the statute of limitations had expired and because some of the

statements had been made to someone other than a law enforcement officer or to a person whose

duty it was to receive information in connection with either a court proceeding or some official

investigation. Report of the Special State's Attorney 33-34 (July 19, 2006).

       After the Special State's Attorney released his Report, defendant filed a petition for leave to

file a second successive postconviction petition on October 23, 2007 (hereinafter the October 23,

2007, petition). Defendant cited the Report as new evidence corroborating his claims that his

confession and Mr. Williams' statement implicating him were the product of police torture. The

circuit court denied defendant leave to file his second successive postconviction petition, stating in

pertinent part:

       "Although the factual assertions relied upon by petitioner in the instant petition were available


       1
         In June 2010, a federal jury convicted Mr. Burge of two counts of obstruction of justice
and one count of perjury for lying in a 2003 civil lawsuit about his use or knowledge of torture of
criminal suspects. Mr. Burge is currently awaiting sentencing on his convictions.

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        to him at the time his first successive post-conviction petition was filed, he has failed to

        identify any objective factor which impeded his efforts to raise the claims in the earlier

        proceeding. Indeed, petitioner has already raised these identical claims in an earlier petition.

        He attaches the recently-filed Special Prosecutor's Report to bolster his claims. Yet,

        petitioner argues mere conclusion[s] rehashed from his trial transcript and analogizes his case

        to other cases where police brutality was found to have existed. This is legally insufficient

        to merit further review."

        Defendant now appeals the order of the circuit court denying him leave to file his second

successive postconviction petition.

        A proceeding brought under the Postconviction Hearing Act (the Act) (725 ILCS 5/122-1

et seq. (West 2002)) "is not an appeal of a defendant's underlying judgment. Rather, it is a collateral

attack on the judgment." People v. Evans, 186 Ill. 2d 83, 89 (1999). Such a proceeding "allow[s]

inquiry into constitutional issues relating to the conviction or sentence that were not, and could not

have been, determined on direct appeal." People v. Barrow, 195 Ill. 2d 506, 519 (2001). In the first

stage, the circuit court determines whether the petition is "frivolous" or "patently without merit." 725

ILCS 5/122-2.1(a)(2) (West 2002). If the postconviction petition is not so summarily dismissed, it

advances to the second stage, where the circuit court must determine whether the petition and any

accompanying documents make a substantial showing of a constitutional violation. See People v.

Coleman, 183 Ill. 2d 366, 381 (1998). If the petition fails to make a substantial showing of a

constitutional violation, it is dismissed; if such a showing is made, the postconviction

petition advances to the third stage, where the circuit court conducts an evidentiary hearing. 725


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No. 1-08-0425

ILCS 5/122-6 (West 2002). Defendant is not entitled to an evidentiary hearing on a postconviction

petition as a matter of right. Barrow, 195 Ill. 2d at 519. "In determining whether to grant an

evidentiary hearing, all well-pleaded facts in the petition and in accompanying affidavits are taken as

true." People v. Orange, 195 Ill. 2d 437, 448 (2001). Dismissal of a postconviction petition is

reviewed de novo. Coleman, 183 Ill. 2d at 378-89.

       The Act contemplates the filing of only one postconviction petition. People v. Morgan, 212

Ill. 2d 148, 153 (2004). However, the statutory bar to a successive postconviction petition is relaxed

"when fundamental fairness so requires." Morgan, 212 Ill. 2d at 153. Fundamental fairness allows

the filing of a successive petition only when the petition complies with the cause-and-prejudice test.

People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). Defendant shows "cause" by identifying an

objective factor external to the defense that impeded his efforts to raise his claim in the earlier

proceeding. Pitsonbarger, 205 Ill. 2d at 460. Defendant shows prejudice by demonstrating the

claimed constitutional error "so infected the entire trial that the resulting conviction or sentence

violates due process." Pitsonbarger, 205 Ill. 2d at 464. The legislature has codified the cause-and-

prejudice test in section 122-1(f) of the Act. See 725 ILCS 5/122-1(f) (West 2006). In reviewing

the circuit court's ruling on whether a defendant has satisfied the cause-and-prejudice test of section

122-1(f), the reviewing court applies the de novo standard of review. People v. Williams, 394 Ill.

App. 3d 236, 242 (2009).

       In the present case, the issue on appeal is whether defendant's October 23, 2007, petition,

which alleges his confession was the result of torture committed by Sergeant Byrne and Detective

Dignan, satisfies the cause-and-prejudice test. The State contends defendant has failed to satisfy the


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"cause" prong of the test which, as discussed above, requires him to identify an objective factor that

impeded him from raising his claims in the earlier proceedings. The State argues defendant already

raised the claims of torture in both of the prior postconviction petitions and previously referenced

OPS reports indicating widespread torture practices at Area 2. The State further argues that

defendant has failed to satisfy the "prejudice" prong of the test because the October 23, 2007, petition

is cumulative to the allegations previously raised and rejected in the earlier postconviction

proceedings. Therefore, the State contends defendant is barred under the cause-and-prejudice test

from raising these same torture claims yet again.

        The State's argument with respect to "cause" is unavailing. In his October 23, 2007, petition,

defendant raised for the first time the argument that the Report of the Special State's Attorney

significantly corroborates his torture claims. Defendant could not have raised the Report in the earlier

1991 and 2000 postconviction proceedings because the Special State's Attorney did not release the

Report until July 19, 2006.     As such, defendant has satisfied the "cause" prong of the test by

identifying an objective factor (the release date of the Report) that impeded him from raising the

Report in the earlier postconviction proceedings.

        The State's argument as to "prejudice" is equally unavailing. The State contends defendant

was not prejudiced by the circuit court's denial of leave to file the October 23, 2007, petition

referencing the Report of the Special State's Attorney, because the evidence against defendant was

overwhelming and the Report is cumulative to other evidence of widespread torture practices in Area

2 and would not change the result on retrial.

        The Report of the Special State's Attorney cannot be considered cumulative evidence, where


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it represents, for the first time, an independent evaluation by the Special State's Attorney of 148

complaints of torture perpetrated by police officers under the command of Jon Burge at Area 2 and

Area 3 from 1973 to 2006. Sergeant Byrne and Detective Dignan are two of the officers named in

the Report. Unlike the earlier OPS reports that found certain allegations of torture were established

by the civil-trial standard of proof by a preponderance of the evidence, the Report of the Special

State's Attorney found that evidence of torture in certain cases had been established by the stricter,

criminal-trial standard of proof beyond a reasonable doubt. The Report also found many other cases

"raised the belief" that claimants were telling the truth about their torture allegations. This evidence

in the Report of widespread, systematic torture of prisoners at Area 2 at or near the time of

defendant's incarceration adds further corroboration of defendant's claims his confession was

procured by torture.

       Our supreme court has held "[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). Our supreme court also has held that a defendant has presented sufficient evidence at the

pleading stage to entitle him to a postconviction, evidentiary hearing when: (1) he has consistently

claimed he was tortured; (2) his claims are "strikingly similar" to other claims of torture; (3) the

officers allegedly involved are identified in other allegations of torture; and (4) the defendant's

allegations are consistent with OPS findings of systemic and methodical torture at Area 2 under Jon

Burge. People v. Patterson, 192 Ill. 2d 93, 145 (2000). As in Patterson, defendant in the present

case 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


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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 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. We reverse and remand for a third-stage evidentiary hearing on

defendant's second successive postconviction petition.

       The State contends People v. Hobley, 182 Ill. 2d 404 (1998), compels a different result. In

Hobley, a jury convicted Madison Hobley of seven counts of felony murder, one count of arson, and

seven counts of aggravated arson. Hobley, 182 Ill. 2d at 410. Mr. Hobley was sentenced to death.

Hobley, 182 Ill. 2d at 410. On direct appeal, the supreme court affirmed Mr. Hobley's convictions

and death sentence. Hobley, 182 Ill. 2d at 410. Mr. Hobley later filed a second-amended petition

for postconviction relief, which the circuit court dismissed without conducting an evidentiary hearing.

Hobley, 182 Ill. 2d at 410. On appeal to the supreme court, Hobley argued he was entitled to a

hearing on his claim that newly discovered evidence of torture perpetrated by officers at Area 2 would

have established his alleged confessions were involuntary and coerced, making their introduction at

his trial a violation of his constitutional rights. Hobley, 182 Ill. 2d at 444-45. The newly discovered

evidence consisted of reports, transcripts and other documents setting forth other allegations of abuse

by police officers at Area 2. Hobley, 182 Ill. 2d at 445.

       The supreme court noted that in its earlier opinion on direct appeal, it held the circuit court

did not err in excluding Mr. Hobley's evidence of prior police brutality because he had not shown any


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injuries commensurate with his alleged beatings. Hobley, 182 Ill. 2d at 448. The supreme court

noted that on postconviction review, Mr. Hobley failed to submit any new evidence of physical

injuries. Hobley, 182 Ill. 2d at 448. Accordingly, the supreme court held its "determination on direct

appeal that [Mr. Hobley] did not suffer injuries consistent with his claims of abuse is not altered by

[his] new evidence. This issue is therefore barred by res judicata." Hobley, 182 Ill. 2d at 448-49.

       The supreme court further held "fundamental fairness" did not require the relaxation of the

res judicata bar, as Mr. Hobley had consistently testified at his suppression hearing and at trial that

he never even made the confessions that he now claimed were the product of police coercion.

Hobley, 182 Ill. 2d at 449. The supreme court concluded:

       "Accordingly, in order for the jury to have concluded that [Mr. Hobley's] confessions were

       coerced, the jury would have had to believe [his] testimony that he was physically abused, but

       disbelieve his testimony that he did not confess. Thus, the contention that [Mr. Hobley]

       confessed but that the confession was the product of coercion was not a particularly

       persuasive one for the defense. For this reason, we conclude that it is not likely that, had this

       new evidence of brutality allegations been introduced, the jury would have concluded that

       [Mr. Hobley's] confessions were coerced. [Mr. Hobley's] primary challenge to the confessions

       was that they were fabricated by police, and evidence that other suspects were allegedly

       coerced into confessing would not have directly aided that position." Hobley, 182 Ill. 2d at

       450.

       In the present case, the State contends, as in Hobley, that defendant consistently maintained

he never confessed to the crimes and therefore he was not prejudiced by the denial of leave to file his


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October 23, 2007, petition alleging his nonexistent confession was coerced and that other prisoners

in unrelated cases had been coerced into making confessions. The State contends, as in Hobley, that

evidence that other persons were allegedly coerced into confessing would not have directly aided his

position that he never made any confession himself.

        Defendant responds he never denied making an inculpatory statement. However, review of

the trial record indicates otherwise; defendant testified at trial that he did not confess to the crimes.

Defendant's testimony was contradicted by ASA McCurry, who testified to defendant's confession.

        Nonetheless, despite defendant's denial of making a confession to ASA McCurry, the State's

argument based on Hobley is unavailing. In contrast to Hobley, defendant in the present case

provided medical evidence corroborating his allegations of torture. See the testimony of Mr. Abdal-

Aziz and Doctor Harper, recounted above. Also, unlike in Hobley, which was decided in 1998,

defendant here has referenced the Report of the Special State's Attorney released in 2006. As

discussed, the Report found evidence of torture perpetrated by officers at Area 2 had been proven

beyond a reasonable doubt. Such findings provide significant corroboration of defendant's torture

claims. A jury here could believe ASA McCurry's testimony that defendant confessed, but it also

could believe the confession was coerced based on defendant's testimony of physical abuse that was

supported by the medical evidence, OPS reports, and the Report of the Special State's Attorney.

Defendant has satisfied the cause-and-prejudice test for filing his second successive postconviction

petition.

        For the foregoing reasons, we reverse and remand for a third-stage, evidentiary hearing on

defendant's second successive postconviction petition. As a result of our disposition of this case, we


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need not address the other arguments on appeal.

       Reversed and remanded.

       GALLAGHER, P.J., and LAVIN, J., concur.




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