People v. Carroll

2022 IL App (1st) 182623-U

No. 1-18-2623

August 8, 2022

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County, Illinois

)

v. ) No. 97 CR 15419 (02)

)

CLIFTON CARROLL, ) Honorable

) James B. Linn,

Defendant-Appellant. ) Judge, presiding.

JUSTICE WALKER delivered the judgment of the court.

Presiding Justice Hyman concurred in the judgment. Justice Coghlan dissenting.

ORDER

¶1 Held: Where a defendant convicted of murder presents affidavits of witnesses attesting

that defendant did not participate in the murder, and the evidence supports a finding

that he acted with due diligence, the court must advance his postconviction petition

based on allegations of actual innocence to an evidentiary hearing. Where the State

contends defense counsel should have found one of the witnesses by the time of

trial, the court should hear evidence on the defendant’s claim he received

ineffective assistance of counsel.

No. 1-18-2623

¶2 Following a jury trial, defendant Clifton Carroll was found guilty of the first degree murder

of Michael Williams, and he was sentenced to 50 years in prison. This court affirmed his conviction

and sentence on direct appeal in People v. Carroll, No. 1-01-3184 (June 30, 2004).

¶3 Clifton now appeals the second-stage dismissal of his postconviction petition and asks this

court to remand for a third stage evidentiary hearing. Clifton attached to his petition affidavits from

two witnesses to the murder who stated unequivocally that Clifton did not participate in the murder.

Clifton argues that (1) the trial denied him due process rights to a fair determination of his petition,

(2) the affidavits constitute new evidence of actual innocence, (3) his trial counsel provided

ineffective assistance of counsel by failing to present the testimony of one of the two witnesses at

his trial, and (4) his prior postconviction counsel unreasonably conceded that trial counsel was not

ineffective for failing to call a key witness. For the following reasons, we remand for a third-stage

hearing on the postconviction petition.

¶4 I. BACKGROUND

¶5 On May 4, 1997, around 1:30 a.m., Michael Williams of the Black Souls street gang walked

out of the Three Brothers M.C. lounge on the west side of Chicago. Two members of the Gangster

Disciples, Johnell Elem and Derrick Wright, accompanied Williams. Johnny Conwell and a second

man came out from behind a nearby truck and fired several gunshots, killing Williams.

¶6 Elem spoke to police minutes after the shooting. He described the shooters as two black

men, 5'9" in height, wearing hooded sweatshirts over their heads. Elem did not tell police he

recognized either of the men. One day later, on May 5, 1997, a passenger in a van fired gunshots

at Wright and Penny Simmons, killing Simmons.

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¶7 Elem viewed a police lineup on May 12, 1997. He identified both Conwell and Clifton,

both members of the New Breeds street gang, as the two men who shot Williams. Prosecutors

charged Conwell and Clifton with the murder of Williams. In a separate indictment, prosecutors

charged Conwell and Clifton with the murder of Simmons. At the trial on the charge of murdering

Simmons, Wright testified he saw Conwell and Clifton shoot Simmons. The prosecution advanced

the theory that Conwell and Clifton murder of Simmons related closely to the murder of Williams.

In response to the prosecution’s questions, Wright testified that he saw Conwell shoot Williams,

but he could not see the second person who shot Williams well enough to make an identification.

The court found Conwell guilty of murdering Simmons, but a jury found the evidence insufficient

to convict Clifton.

¶8 At the trial against Clifton for the murder of Williams, Elem identified Conwell and Clifton

as the shooters. He recognized them at the scene, but did not tell police their names because he

planned to kill them himself. He identified them in the police lineup because he abandoned the

plan to kill them after their arrest.

¶9 The prosecution’s other eyewitness, Rhusheena Fairman, testified that she was in the Three

Brothers lounge when Williams left around 1:30 a.m. on May 4, 1997. She heard gunshots, and

then Williams ran back into the lounge and collapsed. She saw Conwell and Martin Crane outside

the lounge. She did not see her cousin, Clifton.

¶ 10 Fairman testified that she did not remember what she said to the grand jury. The court

permitted the prosecution to introduce a transcript of Fairman’s testimony to the grand jury as

substantive evidence. Fairman told the grand jury she was outside the lounge when she saw

Conwell and Clifton come out of a building and shoot Williams. At the trial Fairman, explained

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she said to the grand jury what police wanted her to say. She testified, “I was terrified when [police]

came and got us because they were telling me, my mother that they could lock both of us up if I

didn’t testify.”

¶ 11 Detective Allen Jaglowski testified his investigation into Williams’s death led him to look

for Conwell, Clifton, and a maroon 1983 Cutlass. He went to an apartment where police spotted

through an open door a .44 caliber revolver in plain view sitting on the windowsill. After entering

the unoccupied apartment, police found two .38 caliber revolvers on the floor and recovered

colostomy bags, vials of medication bearing Crane's name, and a police bulletin. The parties

stipulated that defendant had a colostomy before November 4, 1996, and that he used colostomy

bags throughout May of 1997. The police department’s firearms examiner concluded that the guns

found in the apartment did not discharge the bullets found in or near Williams.

¶ 12 Police Officer John Rawski testified that on May 12, 1997, four blocks from the apartment

where Jaglowski found guns and colostomy bags, he saw Conwell driving, and in a nearby

gangway, he saw Clifton. He followed Clifton and found in a garage a 1983 Cutlass wrapped in

paper with a coat of paint primer on it. One of the wheels was off and the three other wheels were

non-matching.

¶ 13 Clifton’ niece, Tiffany Carroll, testified that she, her grandmother, her three cousins, and

Clifton, all stayed home on the night of May 4, 1997, to May 5, 1997. Tiffany stayed up until 3

a.m. watching television, and Clifton did not leave the house.

¶ 14 The jury found Clifton guilty of the first degree murder of Williams. The court sentenced

him to 50 years in prison. The appellate court affirmed the conviction and sentence. Carroll, No.

1-01-3184.

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No. 1-18-2623

¶ 15 Clifton filed a postconviction petition on June 30, 2006. The trial court dismissed the

petition, but this court reversed and remanded for further proceedings. People v. Carroll, 2014 IL

App (1st) 112531-U. On December 21, 2017, postconviction counsel filed an amended

postconviction petition, supported by affidavits from Wright, Conwell, Fairman, and Marc Kadish,

Clifton’s trial attorney.

¶ 16 Wright said in one affidavit, “I saw two shooters shoot up over a car and shoot at Michael

Williams. I identified Johnny Conwell as one of the shooters. I did not identify Clifton Carroll,

whom I know as ‘Bambi,’ as the other shooter because I know for a fact that Bambi was not

involved in the shooting. Bambi is tall, and the second shooter was shorter than Bambi.” In a

separate affidavit he added:

“Because I grew up with Bam, I know how he looks.

*** Bam was not one of the shooters on May 4,1997, neither was Bam present.

*** If Bam was one of the shooters, I would have said it was Bam.”

Conwell swore, “I along with Marvin Cra[ne] shot Michael Williams *** on May

4, 1997.”

¶ 17 In her affidavit, Fairman said she was inside by the door of Three Brothers when she saw

Conwell shoot Williams. She ran back from the door, and she did not see the second shooter.

Fairman stated: police “kept insisting after they talked with other's that ‘Bam’ was the other shooter

because he was in a different gang than Michael.” She explained her signature on the statement

police prepared:

“The police threatened me with being charged with murder if they found out that

‘Bam’ had did it and that I didn't tell them ***.

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No. 1-18-2623

I was scared from Michael being shot and the possibility of being shot as well in

addition to how the police were threat[en]ing and treating me.”

¶ 18 Kadish stated in his affidavit,

“I did not believe Derrick Wright would be helpful as a defense witness because he

was difficult to locate.

*** Also, I was uncertain how Derrick Wright would testify since he was a member

of an opposing gang. If the State had called him, I was prepared to cross-examine

him.

*** Many years after trial I learned that Derrick Wright is unequivocal that Clifton

Carroll was not one of the shooters or with the shooters.”

¶ 19 Clifton argued, in his amended postconviction petition, that the evidence showed he did

not actually take part in the murder of Williams, and Kadish provided ineffective assistance by

failing to present Wright as a defense witness. At the hearing on the State’s motion to dismiss the

postconviction petition, the judge stated:

“[Clifton] had pro bono counsel from one of the top law firms in Chicago, Mayer

Brown. They were doing this pro bono.

You are telling me that they checked out the availability of these witnesses and for

obvious reasons didn't call either of these witnesses and somehow his constitutional

rights were violated?

***

*** [H]e was represented by pro bono counsel that did a conscientious job. They

identified and located the witness that you are talking about, Mr. Wright.

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No. 1-18-2623

Mr. Wright was interviewed by them and for what appeared to be very clear, correct

reasons was not put on the witness stand.”

¶ 20 The court also held that the affidavits of Wright, Conwell, Fairman, and Kadish had no

new evidence. The court dismissed the postconviction petition, and Clifton now appeals.

¶ 21 II. ANALYSIS

¶ 22 On appeal, Clifton argues (1) he made a substantial showing of actual innocence; (2)

Kadish provided ineffective assistance by failing to call Wright as a witness; (3) postconviction

counsel provided ineffective assistance when she conceded that Kadish acted in accord with

professional standards; and (4) the trial court improperly relied on evidence outside the record to

decide that Kadish provided effective assistance. We review de novo the dismissal of a

postconviction petition at the second stage of postconviction proceedings. People v. Coleman, 183

Ill. 2d 366, 385, 233 Ill. Dec. 789, 701 N.E.2d 1063 (1998).

¶ 23 Actual Innocence

¶ 24 Our supreme court established standards for reviewing claims of actual innocence raised

in a postconviction petition.

“Substantively, in order to succeed on a claim of actual innocence, the

defendant must present new, material, noncumulative evidence that is so conclusive

it would probably change the result on retrial. [Citation.] New means the evidence

was discovered after trial and could not have been discovered earlier through the

exercise of due diligence. [Citation.] Material means the evidence is relevant and

probative of the petitioner's innocence. [Citation.] Noncumulative means the

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No. 1-18-2623

evidence adds to what the jury heard. [Citation.]" People v. Coleman, 2013 IL

113307, ¶ 96, 996 N.E.2d 617.

¶ 25 Clifton contends that Wright’s affidavit and Conwell’s affidavit constitute newly

discovered evidence of actual innocence. Wright admitted that he could not identify the second

shooter who accompanied Conwell, but he knew Clifton and he could see well enough to know

the second shooter was not Clifton, just from the second shooter’s height and body shape.

¶ 26 The State claims the evidence does not count as newly discovered because Clifton would

have discovered it before trial if he acted with due diligence. We cannot reconcile the State’s

argument on this issue with its argument in the same brief that Kadish met all professional

standards and provided effective assistance of counsel. Kadish admitted in his affidavit that he did

not know before trial Wright would testify that he knew the second shooter was not Clifton. “[A]

reasonably diligent defendant may rely on his attorney to conduct his defense ***. An attorney

provides ineffective assistance when he fails to conduct an adequate investigation into the evidence

concerning the charges against his client.” People v. Mitchell, 2012 IL App (1st) 100907, ¶ 52,

972 N.E.2d 1153. If Kadish, acting with due diligence, failed to discover Wright’s potential

testimony, that testimony qualifies as newly discovered evidence. If the evidence does not count

as newly discovered, then Kadish’s failure to find it supports a finding he provided objectively

unreasonable assistance. We hold that by asserting that Kadish met professional standards, the

State has conceded the evidence could support a finding that Wright’s affidavit constitutes newly

discovered evidence.

¶ 27 Conwell’s statement includes his confession to murder. At the time of Clifton’s trial,

Conwell faced charges for that murder. He likely would have asserted his fifth amendment

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No. 1-18-2623

privilege if Clifton had called him as a witness at Clifton’s trial. The reasoning of People v.

Edwards, 2012 IL 111711, ¶ 38, applies: “While petitioner obviously knew of [the affiant] at the

time of trial, the evidence in [the] affidavit apparently was nevertheless unavailable at trial

(citation), and the evidence thus qualified as newly discovered. [The affiant] was a codefendant,

with a fifth amendment right to avoid self-incrimination. No amount of diligence could have forced

him to violate that right if he did not choose to do so.” (Internal quotation marks omitted).

¶ 28 Thus, Conwell’s affidavit and Wright’s affidavit count as newly discovered evidence. No

eyewitness testified at Clifton’s trial, and they knew the second shooter was not Clifton, so the

new evidence is not cumulative of the evidence at trial. To meet the requirements for a claim of

actual innocence, Clifton must also allege facts showing the new evidence is "of such conclusive

character that it would probably change the result on retrial" Edwards, 2012 IL 111711, ¶ 40. Our

supreme court explained:

“Ultimately, the question is whether the evidence supporting the postconviction

petition places the trial evidence in a different light and undermines the court's

confidence in the judgment of guilt. [Citation.] The new evidence need not be

entirely dispositive to be likely to alter the result on retrial. [Citation.] Probability,

rather than certainty, is the key in considering whether the fact finder would reach

a different result after considering the prior evidence along with the new evidence.”

People v. Robinson, 2020 IL 123849, ¶ 48.

¶ 29 At trial, Elem was the only witness who identified Clifton as the second shooter. The State

also presented a transcript of Fairman’s testimony to the grand jury, but she recanted that testimony

and explained that police threats led her to lie to the grand jury. No physical evidence tied Clifton

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No. 1-18-2623

to the murder scene or the guns that killed Williams. Police officers’ testimony supported a

conclusion that Clifton belonged to the same gang as Conwell and he helped Conwell’s efforts to

conceal his guilt, but the officers’ testimony does not show that Clifton participated in the shooting.

Against the weak evidence supporting the conviction, Wright’s testimony furnishes especially

credible evidence exonerating Clifton. Wright testified against Clifton in the trial for the murder

of Simmons, and Wright has not recanted his identification of Clifton in that murder. Wright

belonged to a gang in conflict with Clifton’s gang. The prosecution has not suggested any motive

for Wright to implicate Clifton in the murder of Simmons while falsely exonerating Clifton for the

murder of Williams.

¶ 30 The State in its brief suggests Wright’s and Conwell’s testimony does not exonerate Clifton

because Clifton might have been involved as a third shooter, present at the scene along with

Conwell and Crane. However, Elem at trial and Fairman in her testimony to the grand jury both

stated they saw only two shooters at the scene, and no evidence supports the State’s new theory

that Conwell, Crane, and Clifton together murdered Williams.

¶ 31 We find that Conwell’s affidavit stating that Crane, not Clifton, accompanied Conwell and

fired shots at Williams on May 4, 1997, considered together with Wright’s affidavit stating the

second shooter was shorter than Clifton, constitute material, non-cumulative, newly discovered

evidence of actual innocence that places the trial evidence in a different light and undermines the

court's confidence in the judgment of guilt. We reverse the dismissal of Clifton’s postconviction

petition and remand for a third-stage hearing on his claim of actual innocence.

¶ 32 Ineffective Assistance of Counsel

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No. 1-18-2623

¶ 33 Clifton argues Kadish provided ineffective assistance of counsel when he failed to call

Wright as a witness at trial. Kadish also failed to find out that Wright would testify he knew the

second shooter was not Clifton. Our supreme court has stated that to show ineffective assistance

of counsel, Clifton must allege facts supporting a finding Kadish’s work fell below an objective

standard of reasonableness, and a finding of “a reasonable probability that, but for counsel's errors,

the result of the proceeding would have been different.” People v. Patterson, 192 Ill. 2d 93, 107,

735 N.E.2d 616 (2000).

¶ 34 Kadish admitted in his affidavit that, at the time of trial, he did not know Wright would

testify that he saw the second shooter well and saw the shooter well enough to testify the second

shooter was not Clifton. The State argued in response to the actual innocence claim that the failure

to discover the potential testimony resulted from a lack of due diligence. Hence, the State has

effectively conceded that Clifton has presented adequate support for his claim of ineffective

assistance. Kadish’s work fell below an objective standard of reasonableness.

¶ 35 In addition to the State conceding, the weak evidence against Clifton serves to show that if

not for counsel’s errors, Clifton had a reasonable chance of achieving a better result. Thus, Clifton

has adequately supported his claim for ineffective assistance of counsel, and the claim should

advance to the third stage of postconviction proceedings.

¶ 36 Clifton also argues he received ineffective assistance of postconviction counsel. He asks

this court to reverse the dismissal of his postconviction petition. As we have already found cause

to advance all allegations of the amended postconviction petition to the third stage of

postconviction proceedings, we see no need to address separately the claim he received ineffective

assistance of postconviction counsel.

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No. 1-18-2623

¶ 37 Judicial Bias

¶ 38 Finally, Clifton argues that the judge’s comments at the postconviction hearing showed

bias against Clifton’s arguments concerning ineffective assistance of counsel because the judge

demonstrated an unwillingness to believe that attorneys from Mayer, Brown could have been

ineffective. Clifton asks us to remand with directions to assign a different trial judge to hear the

third stage proceedings. “To obtain a remand to a new judge, a defendant must show something

more than simply that the judge presided over the defendant’s earlier trial. [Citation.] A defendant

can show something more by demonstrating *** ‘prejudice, predilections or arbitrariness.”

(internal quotation marks omitted) People v. Reyes, 369 Ill. App. 3d 1, 25 (2006). In Reyes, the

appellate court directed the appointment of a different judge for proceedings on remand because

the trial judge’s findings, without evidence, “essentially decided *** the entire case.” Id. at 26.

¶ 39 Here, at the hearing on the State’s motion to dismiss the postconviction petition, the judge

stated:

“[Clifton] had pro bono counsel from one of the top law firms in Chicago, Mayer

Brown. They were doing this pro bono.

You are telling me that they checked out the availability of these witnesses and for

obvious reasons didn't call either of these witnesses and somehow his constitutional

rights were violated?

¶ 40 The dissent would find “there is nothing in the record that supports” a finding that the case

should be assigned to a new judge on remand. Apparently, the dissent chooses to disregard the

judge’s assertions about Mayer Brown being “one of the top law firms in Chicago.” We strongly

disagree with the dissent’s position because the judge’s comment shows the judge’s unwillingness

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to countenance a claim that Clifton may have received ineffective assistance of counsel from

Mayer Brown. We find that the Judge’s comment demonstrated bias in favor of the Mayer Brown

law firm.

¶ 41 Supreme Court Rule 366(a)(5) permits a reviewing court, in its discretion, to make any

order or grant any relief that a particular case may require. Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1,

1994). "This authority includes the power to reassign a matter to a new judge on remand."

Eychaner v. Gross, 202 Ill. 2d 228, 279, 779 N.E.2d 1115, (2002). We recognize that finding a

judge bias is a decision that should not be made lightly. Eychaner v. Gross, 202 Ill. 2d 228, 279-

80, 779 N.E.2d 1115 (2002). Nevertheless, out of an abundance of caution, we remand this case

with instructions that the presiding judge of the criminal division assign further proceedings on

defendant’s postconviction petition to a different trial judge.

¶ 42 III. CONCLUSION

¶ 43 Clifton sufficiently supported his claims of actual innocence and ineffective assistance of

counsel. We reverse the dismissal of his postconviction petition and advance the case for a third

stage evidentiary hearing. Because the judge’s comments suggest prejudgment concerning

Clifton’s claim of ineffective assistance, we direct that the presiding judge assign the case to a

different judge on remand.

¶ 44 Reversed and remanded with instructions.

¶ 45 JUSTICE COGHLAN, concurring in part and dissenting in part:

¶ 46 I concur in the judgment that Carroll is entitled to a third stage evidentiary hearing on his

actual innocence claims. I disagree that Carroll made a substantial showing that he received

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ineffective assistance of counsel at trial. I also disagree that this matter should be assigned to a

different judge on remand.

¶ 47 To show ineffective assistance of counsel the defendant must allege facts showing

counsel’s representation was both objectively unreasonable and that he was prejudiced by

counsel’s deficiency. Strickland v. Washington, 466 U.S. 668, 693 (1984) In establishing that his

counsel’s performance was deficient under Strickland, “a defendant must overcome a strong

presumption that, under the circumstances, counsel’s conduct might be considered sound trial

strategy.” People v. Houston, 226 Ill. 2d 135, 144 (2007). In view of counsel’s reasonable

explanation for his decision not to call Wright to testify at trial, Carroll failed to overcome this

“strong presumption.”

¶ 48 On May 12, 1997, Carroll and Johnny Conwell were “arrested for participation in three

distinct shootings of Penny Simmons, Senica Elem, and Michael Williams,” in which “[t]he State

sought the death penalty.” Carroll was convicted of Elem’s murder after a bench trial, but that

finding was “changed to not guilty” after “a hearing on a Motion for a New Trial.” Carroll was

found not guilty of the murder of Penny Simmons after a jury trial. A jury convicted Carroll of the

murder of Michael Williams in this case.

¶ 49 Carroll’s amended post-conviction petition is supported by an affidavit from Marc Kadish,

the lead counsel of Carroll’s three attorney defense team. At the time he began his representation,

Kadish “was the Director of Pro Bono Activities and Litigation Training and part of the

administration of the law firm of Mayer Brown and a member of the Illinois Capital Trial Bar.”

¶ 50 During the June 27, 2001, hearing on Carroll’s motion for a new trial in this case, Kadish

advised the trial court that the defense had located Wright and taken a statement from him before

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trial, but thereafter “lost” him and “could not find him again because he did not want to be found,

and we still have not been able to find him.” When Kadish’s investigator interviewed Wright

before trial, he “was evasive.” Many years later, Wright became “unequivocal that Clifton Carroll

was not one of the shooters or with the shooters.” As Kadish explained in his 2017 affidavit, he

“did not believe [Wright] would be helpful as a defense witness because he was difficult to locate”

and he “was uncertain how [Wright] would testify because he was a member of an opposing gang.”

Wright’s two affidavits confirm that his gang was “into a dispute with an opposing gang,” he and

Carroll were in different gangs, and he had “implicated [Carroll] in the murder of Penny

Simmons.”

¶ 51 It is well settled that decisions “concerning what witnesses to call and what evidence to

present on a defendant’s behalf are viewed as matters of trial strategy.” People v. Munson, 206 Ill.

2d 104, 139 (2002). “Such decisions enjoy a strong presumption that they reflect sound trial

strategy, rather than incompetence [citation] and are, therefore, generally immune from claims of

ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 378 (2000). Unlike situations

where “no meaningful adversarial testing was conducted,” the record in this case establishes that

Wright was a reluctant gang-related witness who had implicated Carroll in another murder. Id.

Under these circumstances, Kadish’s decision not to call Wright as a witness was “sound trial

strategy.” Id.

¶ 52 While Wright’s 2006 affidavit asserts that he knew Carroll was not the second shooter

because “[Carroll] is tall, and the second shooter was shorter than [Carroll],” Wright never

identified the second shooter, and his 2017 affidavit acknowledges that “[i]t was dark and the

shooters were wearing black hoodies” and “[t]he shooters’ skin complexion appeared to be dark

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like other males who were in an opposing gang.” Although Wright claims that “if [he] had been

subpoenaed [he] would have come to court and told the truth,” and did not “remember speaking to

[Carroll]’s defense attorney or a defense investigator,” he does not deny doing so.

¶ 53 The majority asserts that “if not for counsel’s errors, Clifton had a reasonable chance of

achieving a better result.” However, “[s]atisfying the prejudice prong necessitates a showing of

actual prejudice, not simply speculation that defendant may have been prejudiced.” People v.

Patterson, 2014 IL 115102, ¶ 81. As this court noted on direct appeal, “the uncontroverted

testimony of Elem alone provides a sufficient basis to convict [Carroll].” People v. Carroll, No. 1-

01-3184 at 17 (June 30, 2004) Carroll failed to show “that counsel’s deficient performance

rendered the result of the trial unreliable or the proceeding fundamentally unfair.” People v.

Richardson, 189 Ill. 2d 401, 411 (2000). Therefore, the trial court properly dismissed his

ineffective assistance claim.

¶ 54 Even assuming, arguendo, that Carroll was entitled to an evidentiary hearing on his

ineffective assistance claim, the record does not justify assigning this case to a different judge on

remand. “Allegations of judicial bias or prejudice must be viewed in context and should be

evaluated in terms of the trial judge’s specific reaction to the events taking place.” People v. Faria,

402 Ill. App. 3d 475, 482 (2010). Here, the judge stated that Carroll “had pro bono counsel from

one of the top law firms in Chicago, Mayer Brown *** [Wright’s] opinion or his level of

confidence in what he had to say about the case was not strong at the time of the trial and Marc

Kadish made a strategy decision not to put him on the witness stand but now many years later he

feels more firm in his position about what he would have to contribute at the trial *** Can we fault

Mr. Kadish for that?” The judge’s comments do not suggest a belief that attorneys from Mayer

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Brown could never be ineffective, only that attorneys from Mayer Brown were not ineffective in

this case.

¶ 55 During the hearing on the State’s motion to dismiss the amended petition, the judge

inquired: “You’re telling me that they checked out the availability of these witnesses and for

obvious reasons didn’t call either of these witnesses and somehow his constitutional rights were

violated?” In ruling on the motion, the judge explained, “He was represented by pro bono counsel

that did a conscientious job. They identified and located the witness that you are talking about, Mr.

Wright. Mr. Wright was interviewed by them and for what appeared to be very clear, correct

reasons was not put on the witness stand.” The judge’s comments properly reflected his opinion

on the issues presented during the hearing.

¶ 56 Generally, “opinions formed by the judge on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior proceedings,” do not support a bias

or partiality challenge. Liteky v. United States, 510 U.S. 540, 555 (1994). Here, the judge issued a

ruling based upon the evidence presented during the hearing, the arguments of counsel, and the

applicable law. As recognized by our Supreme Court, “To conclude that a judge is disqualified

because of prejudice is not *** a judgment to be lightly made.” People v. Vance, 76 Ill. 2d 171,

179 (1979). In my view, there is nothing in the record that supports the majority’s judgment that

the judge should be disqualified in this case.

¶ 57 For these reasons, I respectfully dissent in part from the majority’s decision.

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