People v. Del Prete

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Appellate Court Date: 2018.02.22

11:42:50 -06'00'

People v. Del Prete, 2017 IL App (3d) 160535

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.

Caption JENNIFER DEL PRETE, Defendant-Appellee.

District & No. Third District

Docket No. 3-16-0535

Filed November 8, 2017

Decision Under Appeal from the Circuit Court of Will County, No. 03-CF-199; the

Review Hon. Carla A. Policandriotes, Judge, presiding.

Judgment Affirmed.

Counsel on James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,

Appeal Lawrence M. Bauer, and Thomas D. Arado, of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Patrick W. Blegen, Jodi L. Garvey, and Lisa L. Wood, of Blegen &

Garvey, of Chicago, for appellee.

Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the

court, with opinion.

Justices Lytton and McDade concurred in the judgment and opinion.

OPINION

¶1 The State appeals the circuit court’s order granting the successive postconviction petition

filed by the defendant, Jennifer Del Prete. Specifically, the State argues that the defendant

failed to establish a Brady violation based on the State’s failure to disclose a letter written by

the lead detective in her case because there was no reasonable probability that the result of

the trial would have been different had the letter been disclosed.

¶2 FACTS

¶3 In 2004, the defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West

2002)) in that she shook I.Z., a 3½-month-old infant, knowing that such acts created a strong

probability of death or great bodily harm to I.Z. and thereby causing the death of I.Z. The

defendant was a day-care provider, and the charges resulted from an incident at the day care.

¶4 A bench trial was held. Barbara Z., I.Z.’s mother, testified that I.Z. was born on

September 6, 2002. On December 27, 2002, Barbara dropped I.Z. off at day care. I.Z. was

developmentally normal when Barbara dropped her off. Barbara did not harm I.Z. before

dropping her off at day care, and she did not see her husband harm I.Z. The next time

Barbara saw I.Z. was later that day at Provena St. Joseph Medical Center (Provena). I.Z. was

transferred to the University of Illinois at Chicago Hospital (UIC). I.Z. remained there for

three weeks. I.Z. was then transferred to Children’s Memorial Hospital. I.Z. remained there

for several weeks. I.Z. returned home on March 23, 2003. Barbara received help caring for

I.Z. from nurses who came to her home. On the morning of November 8, 2003, the nurse

who was caring for I.Z. called for Barbara. Barbara saw that I.Z.’s lips were blue, and she

called 911. I.Z. died the next day.

¶5 Detective Kenneth Kroll testified that he investigated I.Z.’s case. He interviewed the

defendant on December 29, 2002. The defendant told Kroll that she was the only one

working on December 27, 2002, because the other day-care provider was out of town. The

defendant said that after Barbara dropped I.Z. off that day, I.Z. took a bottle between 8 and 9

a.m. I.Z. then slept in a swing until around noon. At that time, I.Z. had “an extremely dirty

diaper.” The defendant changed I.Z.’s diaper and set her down on the couch. The defendant

stepped away for a moment to prepare a bottle for I.Z. When the defendant returned to the

couch, I.Z. “was making a snoring, labored breathing sound” and her body was “totally

limp.” The defendant picked I.Z. up, and her head flopped forward. The defendant gave I.Z. a

“very slight shake” while saying her name several times. The defendant tried to feed I.Z., but

the milk ran out of her mouth down the side of her face. The defendant then positioned I.Z.

face down and gave her three to five pats on the back in an attempt to dislodge anything that

might have been choking I.Z. The defendant felt panicked, and she called 911. The defendant

said that I.Z. did not fall or get knocked over that day. The defendant said that I.Z.’s head

moved more violently when she was patting I.Z. on the back than when she gave I.Z. the

slight shake.

¶6 Kroll took a break during the interrogation. When he returned, he told the defendant that

her statements were not consistent with the medical evidence. Kroll said that I.Z. suffered

from shaken baby syndrome (SBS) and subdural hematomas. Kroll told the defendant that he

believed she was involved in I.Z.’s injuries. The defendant began to cry. She said she could

not remember exactly what happened and that it was a very stressful, panicked situation. The

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defendant told Kroll “she could have shaken [I.Z.] a little harder than she thought.” The

defendant maintained that she did not shake I.Z. violently, and she did not intentionally hurt

I.Z. Kroll acknowledged that he documented in his report that the defendant never actually

confessed to shaking I.Z.

¶7 Dr. Adrian Nica, a physician at Provena, testified that he treated I.Z. in the emergency

room on December 27, 2002. Nica ordered a CAT scan of I.Z.’s brain, which showed that

I.Z. had an “acute and chronic changes secondary to bleeds in different levels.” Nica said that

the chronic bleeding could have been days or a week old. Nica testified that because I.Z. had

not been involved in a car accident, “you have to assume that it was a child abuse or baby

shaking.” The defendant objected. The circuit court allowed Nica’s testimony that he

believed the bleeding was caused by child abuse or baby shaking for the limited purpose of

explaining his course of treatment, not for “the truth of the matter asserted as it relates to

expert diagnosis.”

¶8 Dr. Howard Hast was certified as an expert in the field of pediatric critical care medicine.

Hast testified that he treated I.Z. from December 30, 2002, through January 16, 2003. A

retinal scan showed that there was blood in I.Z.’s retinas, in front of the retinas, and in the

vitreous. I.Z. also had bifrontal subdural hematomas. Hast performed several tests to attempt

to determine a cause of the subdural hematomas. He found no bleeding tendency or

metabolic diseases that would explain the cause of the bleeding. Hast opined that the most

likely cause of the bilateral subdural hematomas was that I.Z. “was shaken or had some other

accelerating/decelerating injury occur such as being dropped or thrown or something like

that.”

¶9 Dr. Jeff Harkey testified that he was employed as a forensic pathologist by the Du Page

County coroner’s office. The court certified Harkey as an expert in the field of forensic

pathology. Harkey testified that he conducted I.Z.’s autopsy on November 10, 2003. Harkey

took X-rays of I.Z. The X-rays showed no evidence of trauma. Harkey also examined I.Z.’s

brain. He did not observe any bleeding or acute trauma. Harkey reviewed some of I.Z.’s

medical records, including a physician’s report from Dr. Emalee Flaherty. Harkey

determined that I.Z.’s cause of death was “multiple system organ failure due to

anoxic-ischemic injuries *** that was due to abusive head trauma [(AHT)].” Harkey stated

that an anoxic-ischemic injury occurred when there was not enough blood flow and oxygen

to bodily tissue. Harkey testified that I.Z.’s AHT occurred 10 or 11 months prior to her death.

Harkey opined: “I believe that the reason that [I.Z.] suffered the injury the day before she

died was a direct result of the injury that she suffered the 10 to 11 months before.” Harkey

observed no evidence of old trauma during his autopsy, and his conclusion that I.Z. suffered

AHT was due to Flaherty’s report.

¶ 10 Flaherty testified that she had been a pediatrician at Children’s Memorial Hospital for

over 30 years. The court qualified Flaherty as an expert in the areas of pediatrics and child

abuse. Flaherty testified that she reviewed I.Z.’s medical records from UIC. She also spoke

with Hast, reviewed the police reports, reviewed the paramedic reports, interviewed I.Z.’s

parents, and examined I.Z. Flaherty concluded that I.Z. “had suffered [AHT] or also known

to many people as [SBS].” Flaherty stated: “[AHT] is a form of child abuse where a child

suffers some kind of acceleration/deceleration injuries to the brain that cause some—or for

example, shaking, and cause the unconstillation [sic] of injuries.” Flaherty stated that AHT

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could be caused by “violent sustained shaking and sometimes impact” to infants or young

children. Flaherty said that AHT was most commonly caused by shaking.

¶ 11 Flaherty showed a PowerPoint presentation to explain AHT. Flaherty showed a slide that

contained the “spectrum of injuries you can see in [AHT] or [SBS].” Of those symptoms, I.Z.

had subdural hemorrhages, subarachnoid hemorrhages, diffusing injury, and parenchymal

lacerations and contusions. Flaherty stated that I.Z. suffered from encephalomacia, or dead

brain tissue, as a result of her injuries. Flaherty stated that acceleration/deceleration forces

like violent shaking can also cause retinal hemorrhages, which I.Z. had. Flaherty opined that

“when you see hemorrhages to the ora serrata as in [I.Z.’s] case, those kinds of extensive

hemorrhages are only caused by these acceleration/deceleration forces or seen in [SBS].”

¶ 12 Flaherty further opined that “extensive subdural hematomas like [I.Z.] had over extensive

areas of the head, those are only caused by acceleration and deceleration forces. For example,

shaking would be an example.” The prosecutor asked Flaherty what level of force would be

needed for violent shaking to cause these injuries. Flaherty responded: “Forces would be so

severe that if anyone witnessed that shaking occurring or someone shaking a child like that,

they would know that that child would suffer severe injury.” The prosecutor asked Flaherty if

she could offer a time frame as to when the abuse to I.Z. occurred. Flaherty replied:

“Oh, yes. On the day of the 27th sometime after—[I.Z.] was described eating

normally in the morning, and sometime after she awoke and was reported to be

smiling but crabby. About—awoke about 1 o’clock and reported to be smiling and

crabby again which tells us she had not suffered severe brain injury at that point, and

just before she lost consciousness and became unresponsive.”

¶ 13 Flaherty stated that the effects of the abuse would have been immediate. Flaherty opined

that I.Z.’s injuries could not have been caused by someone performing cardiopulmonary

resuscitation (CPR) poorly on her, from a fall, or by a young child. Flaherty stated that “[i]t

would take someone of adult strength shaking this child violently to cause these kinds of

injuries.”

¶ 14 Flaherty acknowledged that I.Z. did not have any bruises. Flaherty stated that bruises on

the arms and trunk are not part of the definition of SBS. Flaherty said that she would

typically look for any bruises while conducting an SBS analysis, but it was “pretty

uncommon” to find bruising in a case of SBS. Flaherty did not know why.

¶ 15 The State rested.

¶ 16 The defendant called Dr. Wayne Tucker. The court qualified Tucker as an expert in

pathology and pediatrics over the State’s objection. Tucker testified that he reviewed medical

records, Flaherty’s report, police reports, paramedics’ reports, an autopsy report, and autopsy

pictures. Based on his review of these documents, Tucker opined that I.Z.’s injuries occurred

approximately 18 to 24 hours before she collapsed at the day care. Tucker reasoned that

I.Z.’s CAT scan “reflected that there was an acute situation and there was a chronicity to the

situation of the frontal hematomas, subdural.” Tucker stated that “chronic” meant that it had

been there for “at least 7 to 10 days.” Tucker opined that “[a]lmost anything that will cause

an increase in intracranial pressure” could cause a chronic subdural hematoma to rebleed.

Tucker gave the examples of coughing, sneezing, holding breath, movement, turning the

head quickly, or falling.

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¶ 17 Tucker stated that the fact that I.Z. took a bottle the morning she collapsed “does not rule

out any problem at that time because the sucking reflex of an infant overcomes any damage

that might—a child may have cerebral or physically.” Tucker noted that I.Z.’s history

showed that she had problems taking bottles generally.

¶ 18 Tucker stated that bruising was part of the definition of SBS. Tucker explained that “to

do this even on a three month old or a one month old or any age group *** whoever is doing

it has to pick up into the arms, say hold arms or the shoulders and grab and hold on tightly to

give the shaking.” Tucker stated that he had never seen a shaken baby without bruising.

Tucker had previously testified in three SBS cases.

¶ 19 The defense rested.

¶ 20 During closing argument, the State argued:

“Dr. Flaherty comes in as a fully qualified expert in the field of pediatrics and child

abuse medicine. She comes in and she explains and teaches this Court what [AHT] is,

a rapid acceleration and deceleration of the head which causes very distinct and

specific injuries. These injuries are telltale signs and solely towards what is

commonly referred to as [SBS].”

The State further argued:

“This all happens, Judge, on [the defendant’s] watch of [I.Z.] Dr. Flaherty

testified very clearly, the injuries are immediate. This is not something that happens

hours or days before. This is something that happens when you cause this type of

injury this severe. The effect is immediate. In the morning [I.Z.] is fine. She is able to

eat. She is able to take a bottle between 8 and 9 o’clock from [the defendant]. That

means that these core functions in the blue area as she described have not been

injured yet. It is to this point, Judge, where [I.Z.] is fine.

***

*** The abrupt change signifies when this injury occurred, and that is between

12:00 and 1:30 when the 911 call was made. That puts it squarely on [the

defendant’s] hands.

Dr. Flaherty testified five years old and under, they can’t do this. A fall from a

swing can’t do this. An accident can’t do this. This is a violent shaking. A violent

back and forth acceleration/deceleration of the head, that’s what happened here,

Judge.”

¶ 21 The circuit court found the defendant guilty of first degree murder and sentenced her to

20 years’ imprisonment.

¶ 22 On direct appeal, we affirmed the defendant’s conviction. People v. Del Prete, No.

3-05-0868 (2007) (unpublished order under Supreme Court Rule 23). The defendant filed a

postconviction petition alleging that she received ineffective assistance of counsel. The

circuit court summarily dismissed the petition, and we affirmed the summary dismissal.

People v. Del Prete, 3-08-0431 (2009) (unpublished order under Supreme Court Rule 23).

¶ 23 The defendant filed a motion for leave to file a successive petition for postconviction

relief. The motion alleged that the defendant recently discovered the existence of a letter

written by Kroll (the Kroll letter) that the State failed to disclose prior to trial. Journalism

students at Northwestern University obtained the Kroll letter through a Freedom of

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Information Act (FOIA) request. The Kroll letter was dated November 10, 2003, and was

addressed to Flaherty.1 The Kroll letter stated:

“If you haven’t already heard, [I.Z.] died 11-09-03. I’m writing to inform you of a

‘twist’ in our case presented by the DuPage County Medical Examiner. On 11-09-03,

I received a phone call from an Attorney who notified me that [I.Z.] would undergo a

‘post’ medical exam on 11-10-03. This Attorney specifically called to inform me that

the pathologist scheduled to perform the autopsy does not agree with SBS, and has

testified for the defense in two DuPage County SBS cases.

On 11-10-03, I spoke to a Plainfield Police Evidence Tech (ET) who was present

at the autopsy. The ET advised that Dr. Jeff Harky [sic] did in fact question the

diagnosis of SBS. I was told that Dr. Harky specifically looked for fractures in the rib

cage (adult grabbing point) and found none. Dr. Harky intends to summons all of

[I.Z.’s] medical records to see who determined this was SBS, and why they reached

that diagnosis.

I have great confidence in your findings, and our investigation. This

correspondence is FYI. However, I anticipate having to answer several questions for

my prosecuting Attorney. Please call me when you have a few minutes to discuss the

case.

THANKS!!!”

The defendant’s motion for leave to file a successive postconviction petition argued that the

State’s failure to disclose the Kroll letter violated the rule set forth in Brady v. Maryland, 373

U.S. 83 (1963). The motion also set forth a claim of actual innocence.

¶ 24 The circuit court denied the defendant’s motion, finding that the defendant had not

demonstrated sufficient cause and prejudice. We reversed the ruling of the circuit court and

remanded the matter for further postconviction proceedings. People v. Del Prete, 2015 IL

App (3d) 140007-U.

¶ 25 On remand, the defendant filed a successive postconviction petition. In the petition, the

defendant argued that the State’s failure to disclose the Kroll letter constituted a Brady

violation. The petition also set forth an actual innocence claim based on the Kroll letter and

testimony presented in the defendant’s federal habeas corpus proceedings, including

Harkey’s testimony that he was unaware at the time of the autopsy that I.Z. had a chronic

subdural hematoma. The petition advanced to the third stage of proceedings, and an

evidentiary hearing was held.

¶ 26 The parties stipulated as to the admission of the transcript of the testimony from a hearing

held on June 21, 2013, in the defendant’s federal habeas corpus case. At that hearing, Harkey

testified that he had “no independent recollection” of expressing doubts regarding the

diagnosis of SBS in I.Z.’s case. At the time of I.Z.’s autopsy in 2003, Harkey had general

disagreements with SBS. Specifically, Harkey stated: “The name of the syndrome implies a

mechanism that I don’t believe can be separated from blunt force trauma.” Harkey explained:

1

The name of the addressee was redacted from the copy of the Kroll letter obtained pursuant to the

FOIA request. However, testimony in the defendant’s federal habeas corpus proceedings established

that the Kroll letter was addressed to Flaherty.

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“So when you see a constellation of injuries in a child, I don’t have faith in

somebody being able to say this head injury came from shaking and not from blunt

force trauma. It is possible that they have reason to believe that it’s shaking because

of neck injury, that the neck injury might have caused the head injury, and in that

case, then they have a reason to do it. Then they have a reason to say this is shaken

baby type of injuries. If they catch the whole thing on a nanny cam, they have got a

reason to say this is shaken injuries.

But when I am looking at pathology in an autopsy, I don’t believe that I can say

this child was shaken rather than this child was hit.”

Harkey stated that the term AHT did not describe a specific mechanism of injury and could

include injury as a result of blunt force trauma, shaking, or a combination of both. Blunt

force trauma does not necessarily leave a visible sign of injury or result in bruising or

fractures.

¶ 27 Harkey stated that he also had a problem with a diagnosis of SBS or AHT regarding the

ability to pinpoint a perpetrator. Harkey explained:

“The problem with head injuries is a child can go unresponsive at a time that is

remote—depending upon the type of injury—that is remote from the actual injury,

and so if the child has been in the care of a number of different people, which one

inflicted the trauma that eventually led to the child’s collapse.

With the shaken baby philosophy, this was supposed to solve all of our problems

because it’s obvious that the type of injury that you get from shaking is going to make

the baby go unresponsive immediately. And, therefore, it’s whoever the baby was

with that is the perpetrator. And that would be magic for us. We could solve lots of

problems.

The problem is—

And solve lots of problems, that is, as to who did it.

But the problem that I have with it is that the people that purport to be able to say

these injuries are due to shaking and not due to blunt trauma that may have occurred

earlier, I don’t agree with them. I don’t agree that they’re able to divine that.”

¶ 28 Harkey opined that “all of those injuries that you can find with shaking, you can find with

blunt trauma.” Harkey believed that an infant with subdural hematomas, retinal hemorrhages,

and brain swelling could drink milk from a bottle before collapsing. Harkey stated that an

infant’s ability to feed could be useful to pinpointing the perpetrator in some cases, “but it’s

not black and white, one or the other.” Harkey said that if a baby were thrown onto a couch

or fell on a soft surface, there could be a lucid period in which the baby would not

immediately collapse. Harkey had these opinions in 2003 and 2005 and would have testified

accordingly at the defendant’s trial had he been asked during his testimony.

¶ 29 Harkey testified that his determination as to I.Z.’s cause of death had nothing to do with

his autopsy findings. Rather, he relied on the conclusions of other doctors. Harkey was not

aware that I.Z. had a chronic subdural hematoma at the time he arrived at his opinion

regarding I.Z.’s cause of death. Defense counsel advised him of this fact.

¶ 30 The defendant also called Harkey as a witness at the evidentiary hearing for her

successive postconviction petition. Harkey again testified that when he conducted I.Z.’s

autopsy, he was unaware that she had a chronic subdural hematoma. Harkey explained that a

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chronic subdural hematoma is a collection of blood in the subdural space that is three weeks

old or older. Harkey said that he had records from Provena at the time of the autopsy, but he

did not have the radiologist’s report that noted the chronic subdural hematoma.

¶ 31 Harkey stated that he concluded at the time of the autopsy that I.Z.’s cause of death was

“multi-system organ failure due to anoxic ischemic injury as a result of [AHT].” However, if

Harkey had known that I.Z. had a chronic subdural hematoma, he would have stated that her

cause of death was multi-system organ failure due to anoxic-ischemic injury as a result of

acute and chronic subdural hematomas. Harkey stated that the rebleeding of a chronic

subdural hematoma could cause acute subdural hematomas and could cause a child to

collapse. Harkey testified that it was possible for a chronic subdural hematoma to rebleed

spontaneously not due to trauma. Harkey explained:

“When it rebleeds spontaneously, it increases in size. It could also be an irritant to

the surface of the brain when there is—if there is pressure on the brain, there could be

seizures. All of the things that happened to the baby suddenly at the babysitter’s

house could be a result of a rebleed. Just raising that possibility of a rebleed in a

chronic subdural hematoma draws doubt that there was physical abuse that was

rendered that day because it’s not necessary for that to happen for chronic subdural

hematomas to rebleed.”

¶ 32 Harkey stated that he had reviewed Flaherty’s report at the time of I.Z.’s autopsy, and it

was one of the records he relied on in determining I.Z.’s cause of death. Harkey noted that

the report stated that I.Z. had acute subdural hematomas, but it did not mention a chronic

subdural hematoma. Flaherty’s report concluded that I.Z.’s injuries were caused by child

abuse and occurred immediately before I.Z.’s abrupt change in mental status. Harkey stated

that he did not agree with Flaherty’s conclusions because the chronic subdural hematoma did

not occur immediately prior to I.Z.’s abrupt change in mental status. Harkey explained that

Flaherty’s “facts [did] lead to her conclusions, but because there is a change in facts that

there is a chronic subdural hematoma, that changes the conclusion.”

¶ 33 Harkey testified that he did not agree with the term SBS at the time of I.Z.’s autopsy

because it implied a mechanism that is not supported by physical findings. Harkey stated that

the head injuries a child suffers in SBS are no different than head injuries caused by a blow

to the head, so there was no way to determine from the head injuries whether the baby was

shaken or hit. There was good reason to believe a baby had been shaken if the baby had neck

injuries, but I.Z. did not have neck injuries.

¶ 34 The following exchange occurred between defense counsel and Harkey:

“Q. Do you also have any issue with [SBS] or [AHT] as it relates to pinpointing a

perpetrator of the abuse of a child?

A. Yes.

Q. Tell us what that issue is.

A. Part of the [SBS] philosophy is that the child sustains severe neurological

injury that is called a diffuse axonal injury and becomes immediately unresponsive.

Therefore, it makes it very obvious that whoever the baby was with at the time is the

one that inflicted the injury.

Q. Do you think that that’s correct?

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A. I think that babies can become unresponsive from old trauma such as a

subdural that rebleeds, as we have already talked about. The sequela of that leads to

brain swelling from that anoxic injury, leads to brain swelling and retinal

hemorrhages and all of the findings that are purported to be from [SBS].

Q. If someone had testified at [the defendant’s] trial back in 2005 that [the

defendant] must have been the perpetrator of this offense because the baby collapsed

in her presence and custody, would you have agreed or disagreed with that?

A. I would have disagreed. Let’s see. Do I know about the chronic?

Q. Yes.

A. I do know about the chronic at that time?

Q. Right.

A. I would have disagreed with that.

Q. Do you agree that in the time between a—the existence of a chronic subdural

hematoma and its rebleeding to collapse, a baby could feed and take a bottle and be

relatively normal?

A. Yes.”

¶ 35 When asked again on cross-examination if he had a problem with SBS or AHT in that it

pinpointed the perpetrator as the last person with the child before the child collapsed, Harkey

responded:

“Yeah. That’s not considered to be a problem. That would be—you know if—It

would make investigations incredibly easy. You can identify them. If you can find

this magic thing that happens only with shaking and you can’t get it any other way,

that’s called pathognomonic. If you have a pathognomonic finding and the baby goes

immediately unresponsive, with that pathognomonic finding, it happened acutely.

It’s what we are seeking. It’s what we would like to find is something

pathognomonic. That would make things better. So I don’t have a problem with them

finding something someday. I would love if they did find something. I just don’t think

it’s been found yet. If it were found, it would be very helpful for pinpointing the

perpetrator.”

¶ 36 Harkey testified that it was possible for a baby to become unresponsive immediately after

a severe head trauma caused by shaking, shaking and impact, or blunt trauma. A baby could

have a delayed collapse if the shaking or impact caused some injury but not extensive

subdural hematomas or axonal injury. It was possible for a baby to suffer a relatively minor

injury, get a subdural hematoma, and not collapse for a significant period of time. A baby

could also collapse, recover, and act normal for a long time.

¶ 37 Harkey stated that if a baby died quickly following a head injury, he would look for

fractured ribs and bruises on the rib cage from adult grabbing points. He did not look for

bruises or fresh fractures in I.Z.’s case because she died 9 or 10 months after she collapsed.

Harkey found no evidence of old fractures. Harkey stated that a baby could suffer from AHT

without having rib fractures or bruising.

¶ 38 Charles Bretz, defendant’s trial counsel, testified at the evidentiary hearing that the State

did not turn over the Kroll letter to him prior to trial. At the time of the defendant’s trial,

Bretz “had no idea” that Harkey did not agree with SBS or that he had previously testified for

the defense in any SBS cases. Bretz testified that if he had known the information contained

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in the Kroll letter, he would have attempted to interview Harkey. Bretz would have asked

Harkey about the lack of adult grabbing points on I.Z., Harkey’s testimony in prior SBS

cases, why Harkey questioned the SBS diagnosis in other cases, and Harkey’s concerns with

the general validity of an SBS diagnosis. Bretz would have attempted to obtain the transcripts

from other SBS cases in which Harkey testified. Bretz did not do these things because there

was no indication that Harkey had an opinion other than that I.Z. died of SBS. Harkey

appeared to be “completely aligned with the State’s theory of the case and the opinion of

their expert, Dr. Flaherty.”

¶ 39 Bretz stated that his cross-examination of Harkey would have been different if Bretz had

known about the Kroll letter. Specifically, Bretz would have questioned Harkey about SBS

and Harkey’s concerns about the lack of validity of such a diagnosis. Bretz would have also

questioned Harkey about questions he raised at the time of the autopsy and why his final

report did not mention any of his doubts or concerns regarding SBS in I.Z.’s case or in

general.

¶ 40 Bretz also testified that if the State had given him the Kroll letter, he would have given it

to Tucker and asked him to comment on it. Bretz would have asked Tucker what questions

he should ask Harkey during a pretrial interview or during cross-examination. Bretz would

have also sought out additional medical experts regarding concerns they had with the SBS

diagnosis in I.Z.’s case. Additionally, Bretz would have recommended that the defendant

take a jury trial rather than a bench trial if the State had given him the Kroll letter. Bretz

testified that he believed Harkey knew about I.Z.’s chronic subdural hematoma because his

report stated that he reviewed the records from Provena.

¶ 41 After the hearing, the circuit court granted the defendant’s successive postconviction

petition and ordered a new trial.

¶ 42 ANALYSIS

¶ 43 The State argues that the circuit court erred in granting the defendant’s successive

postconviction petition. We will not reverse the circuit court’s decision following a

third-stage evidentiary hearing on a postconviction petition where fact finding and credibility

determinations are involved unless the decision is manifestly erroneous. People v. Pendleton,

223 Ill. 2d 458, 473 (2006). “ ‘Manifest error’ is defined as ‘error which is “clearly evident,

plain, and indisputable.” ’ ” People v. Ortiz, 235 Ill. 2d 319, 333 (2009) (quoting People v.

Morgan, 212 Ill. 2d 148, 155 (2004), quoting People v. Johnson, 206 Ill. 2d 348, 360 (2002)).

“Thus, a decision is manifestly erroneous when the opposite conclusion is clearly evident.”

People v. Coleman, 2013 IL 113307, ¶ 98.

¶ 44 We first address the defendant’s Brady claim. “A Brady claim requires a showing that:

(1) the undisclosed evidence is favorable to the accused because it is either exculpatory or

impeaching; (2) the evidence was suppressed by the State either wilfully or inadvertently;

and (3) the accused was prejudiced because the evidence is material to guilt or punishment.”

People v. Beaman, 229 Ill. 2d 56, 73-74 (2008). “Evidence is material if there is a reasonable

probability that the result of the proceeding would have been different had the evidence been

disclosed.” Id. at 74. The materiality inquiry “ ‘is not a sufficiency of evidence test’ ”

(People v. Coleman, 183 Ill. 2d 366, 393 (1998) (quoting Kyles v. Whitley, 514 U.S. 419, 434

(1995))) and “a showing of materiality does not require demonstration by a preponderance

that disclosure would have resulted ultimately in defendant’s acquittal.” Id. “Materiality is

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demonstrated ‘by showing that the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.’ ” Id. (quoting

Kyles, 514 U.S. at 435).

¶ 45 In the instant case, the Kroll letter was favorable evidence. The Kroll letter showed that

the lead investigator in the case learned that Harkey initially questioned I.Z.’s SBS diagnosis,

disagreed with SBS in general, found the lack of adult grabbing points on I.Z. to be

significant, and testified for the defense in two SBS cases.

¶ 46 Regarding the second prong in our Brady analysis, it is undisputed that the Kroll letter

was not turned over to the defense. Additionally, Bretz testified that he was not aware of the

information contained in the Kroll letter.

¶ 47 We turn our attention to the third factor in our Brady analysis, namely, whether the Kroll

letter was material to guilt or punishment. As we discussed in our prior decision in Del Prete,

2015 IL App (3d) 140007-U, ¶¶ 39-40, even if the withheld evidence is itself inadmissible, it

may still be material evidence under Brady if it would have led to the discovery of admissible

evidence. Our supreme court implicitly recognized this in People v. Olinger, 112 Ill. 2d 324,

342-43 (1986), when it held that the undisclosed evidence in that case could not have

affected the outcome of the trial because it was inadmissible and the defendant could point to

no admissible evidence the withheld information would have led to. Additionally, this is the

approach of a majority of the federal circuit courts. See Johnson v. Folino, 705 F.3d 117, 130

(3d Cir. 2013) (“[I]nadmissible evidence may be material if it could have led to the discovery

of admissible evidence.”); Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003) (“[W]e think it

plain that evidence itself inadmissible could be so promising a lead to strong exculpatory

evidence that there could be no justification for withholding it.” (Emphasis omitted.)); United

States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002); Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir.

2000); United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991); see also United States v.

Morales, 746 F.3d 310, 315 (7th Cir. 2014). But see Hoke v. Netherland, 92 F.3d 1350 (4th

Cir. 1996).

¶ 48 Here, while the statements about Harkey in the Kroll letter may have been inadmissible

hearsay, the Kroll letter led to the discovery of admissible evidence—namely, Harkey’s

testimony regarding his disagreements with SBS. Bretz testified that if he had received the

Kroll letter in discovery, he would have attempted to interview Harkey regarding his doubts

about SBS, both in I.Z.’s case and in general. Had Bretz interviewed Harkey on these

subjects, he would have discovered Harkey’s general disagreements with SBS.

¶ 49 We find that Harkey’s testimony in the federal habeas corpus proceedings and at the

evidentiary hearing was material evidence for Brady purposes because it “ ‘could reasonably

be taken to put the whole case in such a different light as to undermine confidence in the

verdict.’ ” Coleman, 183 Ill. 2d at 393 (quoting Kyles, 514 U.S. at 435). The State’s theory of

the case at I.Z.’s trial was that the defendant shook I.Z. violently, which immediately caused

I.Z. to collapse. Under the State’s theory, the defendant was the perpetrator because she was

the only adult with I.Z. at the time I.Z. collapsed. The defendant did not confess to the

offense and there were no eyewitnesses. Rather, the State’s theory was based almost entirely

on Flaherty’s expert testimony regarding SBS and AHT. While Harkey’s limited testimony at

the defendant’s trial did not contradict Flaherty’s testimony, his testimony at the federal

habeas corpus hearing and the postconviction evidentiary hearing undercut Flaherty’s trial

testimony in several significant ways.

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¶ 50 Harkey testified at the federal hearing that, although he could not recall expressing doubts

about the SBS diagnosis in I.Z.’s case, he had disagreements with SBS in general at the time

of I.Z.’s trial. Specifically, Harkey testified that all the injuries attributed to shaking in SBS

cases could also be caused by blunt force trauma. Thus, Harkey opined, one could not tell

from a child’s injuries alone whether the child was shaken or hit. This testimony contradicted

Flaherty’s testimony that I.Z.’s injuries could only have been caused by

acceleration/deceleration forces like shaking. While Flaherty noted that AHT could result

from injuries other than shaking, she said that shaking was the most common. Flaherty

repeatedly gave the example of shaking throughout her testimony and used the terms AHT

and SBS virtually interchangeably.

¶ 51 Moreover, Harkey testified that he disagreed with SBS as it related to the ability to

pinpoint a perpetrator. Harkey stated that, depending on the type of injury, a child could go

unresponsive at a time remote from the actual injury. Harkey opined that, based on the injury

alone, one could not divine that a baby went unresponsive immediately after being shaken as

opposed to collapsing from “blunt trauma that may have occurred earlier.” Harkey testified

that, had he been asked at the defendant’s trial, he would have disagreed that the defendant

must have been the perpetrator because she was the last adult to be with I.Z. before she

collapsed. This contradicted Flaherty’s testimony that the effect of I.Z.’s injuries could have

only been caused by acceleration/deceleration forces like shaking and that the effect of the

injuries would have been immediate.

¶ 52 Additionally, Harkey’s testimony that it was possible for an infant with subdural

hematomas, retinal hemorrhages, and brain swelling to drink milk from a bottle before

collapsing undercut Flaherty’s testimony that the fact that I.Z. ate normally in the morning on

the day she collapsed showed that her brain injury had not yet occurred. It also bolstered

Tucker’s testimony that the fact that I.Z. took a bottle the morning she collapsed did not rule

out the possibility that she was already experiencing problems at that time.

¶ 53 We reemphasize that the defendant did not confess to the offense and there were no

eyewitnesses to the alleged abuse in this case. The State’s theory that the defendant was the

perpetrator was based almost entirely on Flaherty’s expert testimony that I.Z.’s injuries were

caused by someone of adult strength shaking her and that the injuries were immediate. Under

these circumstances, we find that Harkey’s testimony concerning his disagreement with SBS,

which contradicts significant aspects of Flaherty’s testimony, “ ‘could reasonably be taken to

put the whole case in such a different light as to undermine confidence in the verdict.’ ”

Coleman, 183 Ill. 2d at 393 (quoting Kyles, 514 U.S. at 435). Thus, we find that the circuit

court’s decision, granting the successive postconviction petition, was not manifestly

erroneous, as the opposite conclusion was not clearly evident. See Coleman, 2013 IL 113307,

¶ 98.

¶ 54 We reject the State’s contention that Harkey’s testimony regarding his disagreement with

SBS would not change the outcome because there was testimony, other than Flaherty’s

testimony, indicating that I.Z. was abused. In support of this proposition, the State cites to the

testimony of Nica and Hast. While Nica and Hast testified that they believed I.Z. was shaken

or abused, neither gave an opinion as to the timing of I.Z.’s injuries. Only Flaherty testified

that the injury must have been immediate. Also, Nica’s testimony regarding his opinion that

I.Z. suffered abuse was not admitted for the truth of the matter asserted. The significance of

Harkey’s testimony at the federal habeas corpus hearing and postconviction evidentiary

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hearing was not that it ruled out the possibility that I.Z. was shaken or otherwise abused.

Rather, the significance of Harkey’s testimony was that it cast doubt on the ability to

determine how and when I.Z. was injured based on her injuries alone.

¶ 55 We also reject the State’s argument that Bretz should have interviewed Harkey and

discussed Harkey’s beliefs regarding SBS even without the disclosure of the Kroll letter. The

fact that Bretz might have discovered the information contained in the Kroll letter if he had

interviewed Harkey does not excuse the State’s failure to turn over favorable evidence to the

defendant.

¶ 56 Because we affirm the judgment of the circuit court on the basis of the defendant’s Brady

claim, we need not address the defendant’s actual innocence claim. As such, we do not

address Harkey’s testimony regarding I.Z.’s chronic subdural hematoma, as that testimony

related to the defendant’s actual innocence claim. The defendant will have the opportunity to

present such evidence at her new trial.

¶ 57 CONCLUSION

¶ 58 The judgment of the circuit court of Will County is affirmed.

¶ 59 Affirmed.

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