Wednesday, April 21, 2010

Meet the Exonerated: Illinois's Death Row, Part Eight

The "Death Row 10" or "Jon Burge 10" which included, Ronald Kitchen, Madison Hobley, Leroy Orange, Leonard Kidd, Aaron Patterson, Andrew Maxwell, Stanley Howard, Derrick King, Reginald McHaffey, Jerry McHaffey and Frank Bounds (R.I.P) were all victims of torture and abuse that they received at the hands of former Lt. Jon Burge and his ring of sadistic and racist detectives at Chicago's Area 2 and 3 police stations on the Southside of Chicago. They were later shown to have engaged in systematic torture of suspects in criminal cases.

Here are two of the ten who were later exonerated:

Madison Hobley was convicted of seven counts of felony murder, aggravated arson and incarcerated for sixteen years, nearly thirteen of those years on death row for a crime he did not commit.

Four officers claimed Hobley admitted setting a fire that claimed the lives of his wife, infant son, and five other persons early the morning of January 6, 1987, at an apartment building in the 1100 block of East 82nd Street in Chicago.

When the fire broke out, Hobley, 26, escaped the flames without shoes and wearing only underwear. He consistently maintained his innocence, alleging that the officers tortured him and — when that failed — fabricated a confession.

In addition to Hobley’s wife, Anita, 21, and their 15-month-old son, Philip, the fire victims were Schalise Lindsey, 7, Shelone Holton, 23, Johnnie Mae Dodds, 34, Anthony Bradford, 36, and Robert Stephens, 40.
The alleged confession

The morning after the fire, two Area 2 police detectives, Robert Dwyer and James Lotito, found Hobley at his mother’s home about a mile from the fire scene. Dwyer and Lotito claimed that Hobley voluntarily went with them to Area 2 headquarters and then to central police headquarters at 1121 South State Street — where, they said, he confessed.

Hobley denied not only that he confessed but also that he had any choice about going with Dwyer and Lotito. He claimed that Dwyer handcuffed him to a wall ring at Area 2 and beat him, after which he was taken downtown, where he was handcuffed to a chair and kicked by Sergeant Patrick Garrity. Then, according to Hobley, Dwyer, Lotito, and Detective Daniel McWeeny suffocated him with a plastic typewriter cover until he blacked out.
The officers' testimony

At Hobley’s jury trial before Cook County Circuit Court Judge Christy Berkos in 1990, the prosecution case rested primarily — although not entirely — on the testimony of the four officers, all of whom denied abusing Hobley in any way. They claimed that Hobley had twice been advised of his right to remain silent and to consult a lawyer but that he elected to waive his rights and proceeded to confess.

According to the officers, Hobley related that he went to a filling station with a can, bought a dollar’s worth of gasoline, went home, emptied the can into the hallway outside his third-floor apartment and down the stairwell, ignited the gasoline with a match, and threw the can down in the second-floor hallway. This he did, it was alleged, that he might start a new life with a woman with whom he had recently had an affair.

There was no record of the purported confession. Dwyer said he took notes on Hobley’s confession, but threw them away after something was spilled on them. "Quite frankly they were soaking wet," he testified. "You know, ink was running on them." Garrity testified that he also took notes, but they indicated only that Hobley made "admissions."
The alleged gasoline purchase

The prosecutors — Assistant Cook County State’s Attorneys George Velcich and Paul Tsukuno — presented two witnesses purporting to link Hobley to the purchase of a dollar’s worth of gasoline, in a can, at an Amoco station in the 8300 block of South Cottage Grove Avenue less than an hour before the fire.

Andre Council, a customer at the station, testified that he stood five feet from the man as he pumped the gasoline. After the man paid for the gasoline and left, Council said he visited with the attendant, Kenneth Stewart, for 30 to 45 minutes before fire trucks went roaring past.

A little later, Council said he went to the fire scene, about half a mile from the station, where he saw the man whom he had seen buy the gasoline. The next day, Council continued, he saw a photograph of Hobley on television and recognized him, whereupon Council called the police.

Steward, the station attendant, testified that a man had bought a dollar’s worth of gasoline while Council was at the station. At a lineup the day after the fire, however, Stewart initially failed to identify Hobley. After officers pressed him to identify someone, Stewart responded that Hobley "favored" the man who bought the gasoline, but added that he was not certain.
Purported physical corroboration

To corroborate Hobley’s alleged confession and other aspects of the prosecution theory of the crime, Velcich and Tsukuno introduced into evidence a two-gallon gasoline can that another Chicago Police Detective John Paladino testified he discovered at the fire scene.

Detective Virgil Mikus, a Chicago police detective who testified as an arson expert for the prosecution, told the jury that a burn pattern on the floor in front of the Hobley apartment indicated that gasoline had been poured there. Mikus acknowledged that tests showed no traces of gasoline in the area — but claimed it must have been washed away by water firefighters used to extinguish the fire.
Sentence and appeals

When the jury found nothing in mitigation sufficient to preclude imposition of the death penalty, Berkos sentenced him accordingly and, in 1994, the Illinois Supreme Court upheld Hobley’s conviction and death sentence, calling the evidence "overwhelming." People v. Hobley, 159 Ill. 2d 272 (1994).

The following year, Hobley’s appellate attorneys — Professor Andrea Lyon, of the DePaul University College of Law, and Kurt H. Feuer, of Ross & Hardies — filed a petition for post-conviction relief in the Circuit Court alleging that the authorities had illegally withheld a forensic report stating that the gasoline can introduced into evidence at the trial had been examined for fingerprints and that Hobley’s were not on it. During the trial, Velcich and Tsukuno had denied the existence of such a report.

More important, Lyon and Feuer alleged that the authorities had withheld a group of reports showing that police had recovered a second gasoline can at the scene of the fire and had destroyed it. The implication of these reports was not only that the fire had been set by someone other than Hobley but that the can introduced at the trial had been planted to corroborate Hobley’s alleged confession.

Circuit Court Judge Dennis J. Porter, however, drew no such inference. He denied Hobley’s petition without a hearing.

In 1998, the Supreme Court found the new evidence sufficiently troubling to reverse Porter and remanded the case for an evidentiary hearing. "At defendant’s trial, the defense theory was that another person had started the fire," said the court. "The negative fingerprint report and the existence of a second gasoline can found at the fire scene certainly would have offered concrete evidentiary support to that defense theory." People v. Hobley, 182 Ill. 2d 404 (1998).
The evidentiary hearing

On May 31, 2002 — two years and two days after the Supreme Court ordered the evidentiary hearing — Judge Porter complied.

The hearing dragged on intermittently for more than two years, during which, in addition to documenting the withheld exculpatory evidence, Lyon and Feuer showed that Andre Council, the principal witness who linked Hobley to the purchase of gasoline before the fire, had himself been a suspect in an arson that occurred on March 17, 1987.

At this point, former Area 2 Commander Jon Burge was commander of the department’s bomb and arson unit. He issued an order waiving a fingerprint check for Council and releasing him on a personal recognizance bond. This was six years before Burge would be fired for torturing suspects while working in various capacities at Area 2.

Evidence was presented indicating that the jury had been intimidated. A group of jurors having dinner while sequestered reported that they were taunted by other diners, "You know he’s guilty," "Give him the death penalty," and "Hang the motherfucker." Also, during deliberations, the jury foreman, a suburban police officer, placed a revolver on the jury table and proclaimed, "We'll reach a verdict."

The evidence supporting the claim that the gasoline can introduced at the trial had been planted was presented by an arson expert retained by the defense — Russell Ogel, of Packer Engineering, Inc. He testified that the can bore no signs of exposure to extreme heat that destroyed other items in the area where it purportedly had been found; not even the plastic cap on the can had been damaged.

Ogel also testified that — contrary to the prosecution expert’s contention at Hobley’s trial — there was no evidence of burn patterns on the third floor of the building. Rather, said Ogel, tests showed that the fire started in a stairwell lower in the building.

Porter found the new evidence unpersuasive. On July 8, 2002, he denied Hobley a new trial saying, "There is no showing the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."
Pardon based on innocence

Lyon and Feuer appealed and filed a petition seeking a full pardon based on innocence with the Illinois Prisoner Review Board, which conducts hearings on such requests and makes confidential recommendations to the governor.

On October 18, 2002, the board heard Hobley’s petition, and on January 9, 2003, Governor George H. Ryan granted the pardon. "Madison Hobley was convicted on the basis of flawed evidence," Ryan said. "He was convicted because the jury did not have the benefit of all existing evidence, which would have served to exonerate him."

“I was raised in a pretty integrated neighborhood. Before taking me to that interrogation room, no one had ever called me a ‘nigger.’ I knew the odds about the black man, how easy he can end up in the penitentiary. I walked the straight path. I did all the things a person would do to avoid being in that situation. I went to school, had a job, settled down. But still, I’m taken into custody by these narrow-minded, evil, wicked men. We pay them to uphold the law, and these men looked me in the eye and told me that they hated me because of the color of my skin and that they didn’t care about the people who died in the fire, including my wife and child, that whoever set that fire did them a favor, because ‘nothing but niggers’ died." -- Madison Hobley

“People ask me, ‘Are things back to normal?’ I don’t know what normal is. Take those sixteen years away, bring me my wife and child back, and give me back my name, the way I was—it will never be normal. I’ll never regain the life I had.”—Madison Hobley
Leroy Orange, another unwilling member of the "Death Row 10", spent 19 years on death row before Governor Ryan pardoned him. Orange was arrested and questioned about the murders of four persons, four murders that his half-brother, Leonard Kidd, testified he alone committed without Orange’s participation or knowledge. The conviction rested primarily on Orange’s confession, which he contended had been extracted by torture — beating, suffocation, electroshock — at the hands of Chicago Police Lieutenant Jon Burge and other officers at Area 2 police headquarters on the city’s south side. Orange was among 14 Chicago men sentenced to death based in whole or part on confessions allegedly extracted by torture in south side police stations during the 1980s.

Arrests and confessions

Orange, 32, and Kidd, 29, were arrested on January 12, 1984, the day after the bodies of two women, a man, and a child were found in an apartment at 1553 West 91st Street. The victims — Renee Coleman, 27, Michelle Jointer, 30, Ricardo Pedro, 25, and Coleman’s 10-year-old son, Tony — had been bound and stabbed. Two fires had been set in the apartment.

Kidd, who was wearing Pedro’s watch when he was arrested, initially told officers that he and Orange had been at Coleman’s apartment in the early morning hours of January 11. Sometime around 4:30 a.m., according to Kidd’s initial statement, Orange began arguing with Pedro. Fearing the situation would turn violent, Kidd left the apartment just as "two dudes" armed with knives arrived. Kidd claimed that he waited outside, where a little later he saw the two men leave, one wearing a jacket drenched in blood.

Orange’s confession followed — after more than 12 hours of interrogation and, he said, intermittent torture. The confession consisted of answers to leading questions based on Kidd’s initial story.

After obtaining the confessions, the police brought Orange and Kidd face to face, whereupon Kidd offered a different account of the crime. He now admitted lying about the two other men arriving at the scene and said that he had been present when Orange killed the victims. Kidd then led the police to knives used in crime, which had been discarded in garbage cans.

Based on their statements, Orange and Kidd were indicted by a Cook County grand jury for murder, concealment of homicidal deaths, aggravated arson, and armed robbery. Orange promptly told virtually everyone with whom he came into contact — his cellmate, a physician who examined him, relatives and friends who visited him in jail, the assistant public defender assigned to his case, and the judge before whom he was arraigned on January 14 — that he had been tortured.
Private counsel

Orange and Kidd were eligible to be represented by the Cook County Public Defender’s Office, but their family rejected that option and retained private counsel — Earl Washington. Despite the conflict inherent in representing co-defendants with conflicting defenses, Washington accepted both clients. Three months later, recognizing the conflict, he withdrew from the Kidd case.

Although Orange promptly told Washington about the torture, Washington did not investigate. He filed a motion to suppress the confession, but withdrew it when Circuit Court Judge Arthur J. Cieslik deemed it inadequate. Cieslik offered Washington an opportunity to file a more detailed motion, but Washington failed to do so.
The trial

At Orange’s 1985 trial, his confession was virtually the entire prosecution case. Orange took the stand in his own defense, claiming innocence. He testified that he had been with the victims the night before the crime, but had left them alive and well around 2:30 a.m. Kidd then took the stand, testifying, against the advice of the public defenders appointed to represent him after Washington withdrew from the case, that he alone committed the murders after Orange left the apartment.

In rebuttal, the prosecution called Area 2 officers, who denied torturing either man. A jail physician, who examined Orange two days after the alleged torture, testified she observed no sign that he had been mistreated.

After the jury found Orange guilty, Washington stipulated to his client’s eligibility for the death penalty. When Cieslik asked if he wished to present evidence in mitigation, Washington responded, "No, your honor. Other than to state to your honor that we feel that there is a lack of significant criminal history on the part of this defendant. We are mindful of the two juvenile convictions, but we feel that that does not fall within the category that is anticipated by the statute in which a lack of significant criminal history should be considered as a mitigating factor. Other than that, we have no mitigation." Absent mitigating evidence, the jury found nothing to preclude imposition of the death penalty, and Cieslik sentenced Orange accordingly.

Kidd’s fate

With his half-brother on death row, Kidd pleaded guilty before Judge Cieslik in August 1985 to the murders he already had testified he alone committed. Cieslik accepted the plea and scheduled a death penalty hearing before a jury beginning three days later.

Before jury selection began, however, Kidd’s attorneys made an oral motion to withdraw the plea. Cieslik asked for the motion in writing and proceeded with the hearing. After a court reporter read the testimony Kidd had given at the Orange trial, the jury found Kidd eligible for the death penalty, at which point Cieslik denied the defense motion to withdraw the plea.

The prosecution then presented evidence in aggravation linking Kidd to a 1980 arson fire in which 10 children had died. Kidd took the stand on his own behalf, acknowledging the 1984 murders to which he had pleaded guilty but denying that he had anything to do with the 1980 fire. After the jury found nothing in mitigation to preclude imposition of the death penalty, Cieslik sentenced Kidd to join his half-brother on death row.

Three years later, Kidd went on trial before Circuit Court Judge James M. Schreier and a jury for the 1980 murders. Before the trial, Kidd’s public defenders attempted to waive the jury for sentencing. They wanted to do this because, under Witherspoon v. Illinois, 391 U.S. 510 (1969), prospective jurors who say they would not impose a death sentence may be excluded from sitting in the guilt-determination phase of a trial if they also might participate in sentencing. A sizeable body of research had shown that excluding such jurors made juries more prone to convict, and a conviction-prone jury was something Kidd’s lawyers wanted to avoid.

Schreier refused to allow the waiver and a death-qualified jury proceeded to find Kidd guilty of the murders. At the sentencing phase of the trial, the jury found nothing in mitigation to preclude imposition of the death penalty, and Schreier imposed a second death sentence against Kidd.

Two years later, the Illinois Supreme Court overturned Kidd’s death sentence for the 1984 murders, holding that Cieslik had abused his discretion by denying Kidd’s motion to withdraw his guilty plea. People v. Kidd, 129 Ill. 2d 432 (1989). Three years after that, the Supreme Court overturned Kidd’s death sentence for the 1980 murders, holding that Schreier had abused his discretion by denying Kidd’s motion to waive the jury for sentencing. People v. Kidd, 147 Ill. 2d 510 (1992).

Prosecutors retried Kidd and won death sentences in both cases. This time, the convictions and sentences were affirmed. People v. Kidd, 175 Ill. 2d 1 (1996), People v. Kidd, 178 Ill. 2d 92 (1997). Kidd remained on death row until January 11, 2003, when Governor George Ryan commuted his sentence to life in prison without parole.
The Orange appeals

After Orange’s conviction and death sentence were affirmed on direct appeal, People v. Orange, 121 Ill. 2d 364 (1988), he filed a pro se petition for post-conviction relief in the trial court. Bluhm Legal Clinic Director Thomas F. Geraghty and clinic students entered the case and filed an amended petition alleging that Earl Washington’s failure to investigate the torture allegations and to present evidence in mitigation constituted ineffective assistance of counsel.

Because Judge Cieslik had retired, the case was assigned to Judge Thomas F. Durkin, who denied the petition without an evidentiary hearing. On appeal, the Supreme Court reversed Durkin, ordering an evidentiary hearing. People v. Orange, 168 Ill. 2d 138 (1995). The case then went to Judge Daniel Locallo, who vacated Orange’s death sentence and ordered a new sentencing hearing.

At this point, Geraghty filed a successor petition for post-conviction relief based on new evidence supporting the torture claims, but Locallo denied it without a hearing. The Supreme Court affirmed the denial of the successor petition, People v. Orange, 195 Ill. 2d 437 (2001), and the case went to Judge Schreier — who had been reversed in the Kidd case — for a new sentencing hearing.

The hearing was pending when Governor Ryan on January 10, 2003, granted Orange a full pardon based on innocence, criticizing prosecutors and the judiciary for relying on "procedural technicalities at the exclusion of the quest for truth" throughout the case.

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