People v. Wrice

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.

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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

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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.

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¶ 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

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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.

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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.”).

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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

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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.

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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

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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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