IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION PEOPLE OF THE STATE OF ILLINOIS, Respondent, -vsGABRIEL SOLACHE, Petitioner. ) ) ) ) ) ) ) ) ) No. 98 CR 12440-03 Honorable James Michael Obbish, Judge Presiding. AMENDED PETITION FOR POST-CONVICTION RELIEF Petitioner, GABRIEL SOLACHE, by his attorneys JANE E. RALEY and KAREN L. DANIEL of the CENTER ON WRONGFUL CONVICTIONS at NORTHWESTERN UNIVERSITY SCHOOL OF LAW, respectfully requests relief pursuant to the Illinois PostConviction Hearing Act, 725 ILCS 5/122-1 et. seq, and in support of this request, alleges and states the following: INTRODUCTION There is a tremendous risk that the State of Illinois has convicted an innocent man. Gabriel Solache had never been arrested, much less convicted of a crime, prior to this case. His conviction rests solely upon a coerced confession that furnished no original information to the police and was at odds with the state of the crime scene. No physical evidence—such as hair, DNA, or fingerprints—linked Solache to the murders, nor did any eyewitness testify that he committed the crime. Solache has always maintained that he confessed only after being beaten by Chicago Police Detective Reynaldo Guevara, who also isolated and interrogated him for over 40 hours before he agreed to give a statement. Solache’s account was corroborated by the testimony of another man who originally was a suspect in this case and who also was beaten by Guevara; this man was released without being charged and therefore had no reason to lie about what had happened to him. Guevara, however, denied that any abuse occurred, and without more to substantiate Solache’s testimony, the jury convicted him. Petitioner now presents substantial new evidence suggesting that throughout Detective Guevara’s career, from at least 1983 through Solache’s arrest, he consistently used force, threats, and other means to coerce statements from suspects and witnesses during his investigations. Guevara also engaged in illegal and dishonest conduct that demonstrates his utter lack of credibility. This information—most of which the prosecution failed to disclose to the defense during discovery despite its obligation to do so—is set out at length in this Petition. Had it been heard by the jury, it would have supported Solache’s testimony that he falsely confessed as a result of physical and mental abuse by Guevara and thus could have changed the outcome of trial. Additional evidence that could have corroborated Solache’s account was likewise omitted from the jury’s consideration, due to ineffective assistance of counsel. For instance, postconviction counsel has adduced expert evidence of a link between the beating and Solache’s subsequent loss of hearing in his left ear, where Guevara hit him. The new evidence developed during the post-conviction proceedings, together with the tenuous nature of the State’s case at trial, undermines confidence in the verdict in this case and demands that Gabriel Solache’s convictions be set aside and a new trial ordered. 2 PROCEDURAL HISTORY 1. A jury found Gabriel Solache guilty of two counts of first degree murder, two counts of aggravated kidnaping, and home invasion on June 20, 2000. Solache waived his right to sentencing by a jury, and on December 18, 2000, the circuit court, Honorable Stanley J. Sacks presiding, sentenced Solache to death for the murders and to concurrent terms of thirty years in prison for each count of aggravated kidnaping and for home invasion. 2. On April 10, 2002, while his direct appeal was pending before the Illinois Supreme Court, Solache filed a pro se petition for post-conviction relief and a motion for appointment of counsel. Solache filed his petition at that time only because he was under a sentence of death and because Illinois law requires a capital defendant to file his post-conviction petition within 45 days after an initial brief has been filed in the Illinois Supreme Court. See 725 ILCS 5/122-1(c). Illinois law also provides capital defendants with an automatic right to counsel during post-conviction proceedings. See 725 ILCS 5/122-2.1(a)(1). 3. On April 23, 2002, the Illinois Supreme Court appointed the Office of the State Appellate Defender, Capital Litigation Division, as counsel for Solache. Subsequently, the State Appellate Defender contracted with the Bluhm Legal Clinic, Northwestern University School of Law, to represent Solache. 4. On January 10, 2003, then-Governor George Ryan commuted Solache’s sentence of death to that of natural life imprisonment. 5. On April 14, 2003, the Illinois Supreme Court, on its own motion, transferred Solache’s direct appeal to the Appellate Court, First Judicial District. 3 6. On May 6, 2003, the circuit court granted Solache’s request to withdraw his pro se petition for post-conviction relief without prejudice, with leave to file a new petition on or before December 18, 2003. 7. The Appellate Court, First District, affirmed the convictions in an unpublished order. People v. Solache, No. 1-03-1149 (1st Dist. Aug. 19, 2003) (attached as Exhibit A 1). Leave to appeal was denied on October 4, 2004. People Solache, 211 Ill. 2d 608 (2004). 8. On December 18, 2003, counsel for Petitioner filed a new Petition for Post- Conviction Relief. The petition was prepared by the Bluhm Legal Clinic, which continues to represent Petitioner on a pro bono basis. The circuit court, Honorable Stanley J. Sacks presiding, summarily dismissed the petition on March 12, 2004. 9. Petitioner’s appeal from the dismissal was consolidated with that of his codefendant, Arturo Reyes, who was tried simultaneously before a separate jury and sentenced to natural life imprisonment for the same offenses of which Solache was convicted. The circuit court, Honorable Stanley J. Sacks presiding, also summarily dismissed Reyes’ pro se postconviction petition. 10. On December 11, 2006, the Appellate Court reversed the summary dismissals and remanded both cases for further proceedings and for assignment to a different judge. People v. Reyes & Solache, 369 Ill. App. 3d 1 (1st Dist. 2006) (attached as Exhibit B). Leave to appeal was denied on March 28, 2007. People v. Reyes, 223 Ill. 2d 669 (2007). 11. Petitioner now files this Amended Petition for Post-Conviction Relief with leave of court and without objection from the State. 1 Exhibits A through I to this Petition are in one bound volume; Exhibits 1 through 41 to this Petition, which relate to Detective Reynaldo Guevara, are in five separate bound volumes. 4 EVIDENCE ADDUCED AT TRIAL Gabriel Solache’s Activities on the Night of the Murder 12. On Friday, March 27, 1998, Gabriel Solache left his home at 6234 South Mozart Street in Chicago and traveled to a factory owned by Ready Metal Manufacturing, where he worked as a full-time machine operator. 2 Gabriel shared his residence on South Mozart with no less than eleven people. 3 The home was owned by Rosauro Mejia and his wife Adriana, and was divided into three apartments. Gabriel lived in the first-floor apartment with the Mejias, whom he had known from Mexico. 4 The Mejias were married but did not have children. 5 They had been trying to have children for three years, and as Rosauro and Gabriel understood it, Adriana Mejia was then pregnant with the couple’s long-awaited first child. 6 13. After arriving at the factory at 4:30 p.m. on March 27, Gabriel worked until early the next morning. 7 Gabriel finished his shift at 3:00 a.m. 8 He arrived at the Mozart house at 4:00 a.m., talked briefly with his housemate, Carlos Martinez, and went to bed soon thereafter. 9 14. Gabriel woke up late Saturday morning. He then learned that Adriana Mejia had gone to the hospital the night before and had returned home with a newborn baby girl. Gabriel also saw that Adriana was accompanied by a little boy, whom Gabriel had never met. 10 Adriana explained that the little boy was the son of a woman she had met at the hospital the night before. 2 R. 1961, 2044-46. R. 2040. Because many of the residents of the Mejia household have the same last name, this section will refer to residents by their first names. 4 R. 1496-97. 5 R. 1497, 1964, 1980. 6 R. 1964, 1980-81, 1984. 7 R. 1961, 2046. 8 R. 1961. 9 R. 2046-47. 10 R. 2047-49. 5 3 This woman, Adriana related, had gone into labor and did not have anyone to watch the boy. Adriana said that she had agreed to watch him. 11 15. Soon after meeting Adriana’s newborn baby girl, Gabriel left the house to cash his paycheck. When he returned home that afternoon, there were other people at the house admiring Adriana’s new baby. 12 Guadalupe Mejia Learns of the Soto Murders 16. The basement apartment of the Mejia house was occupied, in part, by Rosauro Mejia’s brother Jorge and Jorge’s wife Guadalupe. Late in the evening on Thursday, April 2, less than a week after Adriana returned from the hospital, Guadalupe was watching a Spanish language television news report about crimes from the weekend before. A young couple, Mariano and Jacinta Soto, had been murdered in their home, and their two children, Maria Guadalupe and Santiago, were missing. The program aired a photo of the missing children, and Guadalupe recognized Santiago as the boy whom Adriana had brought home from the hospital. 13 17. Guadalupe told Adriana and Rosauro what she had seen. Guadalupe guessed that the woman who had given the boy to Adriana at the hospital had been involved in the crime. She suggested that Adriana and Rosauro take the boy to a police station. 14 Adriana responded to this news with little emotion and suggested that they leave the boy in an alley. Rosauro disagreed and insisted that they take the boy to the police. 15 An argument ensued between Rosauro and Adriana, and for almost 45 minutes the couple fought about what should be done with the boy. 16 11 R. 1967. Adriana Mejia later referred to this woman as Norma Salazar. R. 1985. R. 2047-48. 13 R. 1503-04. 14 Id. 15 R. 1968-69, 1987-89. 16 R. 1987-89. 6 12 18. Gabriel Solache returned home from work during the argument. Rosauro told Gabriel that the boy’s parents had been murdered and that the boy had been kidnapped. 17 Rosauro asked Gabriel if he would accompany him to the police station, and Gabriel readily agreed. 18 Rosauro also asked another resident of the house, Arturo DeLeon Reyes, if he would come with them. Arturo was initially reluctant but eventually agreed to join them. 19 The Men Return the Boy and Are Taken into Custody 19. Against Adriana’s wishes, Rosauro Mejia, Gabriel Solache, and Arturo Reyes took the little boy to the local police station. They arrived at the station at approximately 2:00 a.m. on April 3, 1998, and were asked to wait for a Spanish-speaking officer to get there. 20 They waited for over two hours. 21 20. At about 4:15 a.m., Spanish-speaking officer Juan Solis arrived and spoke to Rosauro, who explained why they had come to the station. Solis’s partner, Officer Wade Golab, and Sergeant Edward Hanlon were also present for this conversation. 22 Soon after, a neighbor of the Soto couple arrived and identified the little boy as Santiago, the son of the murder victims. 23 Rosauro, Gabriel, and Arturo then willingly accompanied the police to Area 5 headquarters for additional questioning. They traveled in squad cars but were not handcuffed. 24 21. After arriving at Area 5, the men were separated from each other. Each was taken to an individual interrogation room. 25 At approximately 9:45 a.m., the police traveled to the 17 R. 2048-49. R. 1971, 2049. 19 R. 1969, 1989-90. 20 R. 1970, 2050. 21 R. 1451, 1970-71, 2050. 22 R. 1450-51, 1454-55, 1460. 23 R. 1372, 1455-56. 24 R. 1465-66, 2050. 25 R. 1973, 2051. 18 7 Mejia household, where they found Adriana with Maria Guadalupe Soto, the daughter of the murder victims. 26 Adriana was arrested and taken to Area 5 headquarters, and Guadalupe Mejia, who was also present, was taken in for questioning as well. 27 22. Thus, on the morning of April 3, 1998, five residents of the Mejia house— Rosauro Mejia, Gabriel Solache, Arturo Reyes, Adriana Mejia, and Guadalupe Mejia—were all being held at Area 5 headquarters for questioning about the Soto murders. Day One of the Interrogations: April 3, 1998 23. Gabriel Solache was locked in a small interrogation room furnished with a metal bench and a plastic chair. He waited there for many hours without receiving any information about why he was being held. Eventually, an officer entered the room and took Gabriel’s shoes without explanation. 28 Later, a Spanish-speaking officer took Gabriel to a larger room and accused him of committing unspecified crimes. 29 The officer eventually accused Gabriel of participating in the Soto murders. Gabriel denied involvement and told the officer that he had been at work when the crime took place. The officer said he did not believe Gabriel. The officer said that if Gabriel refused to tell the truth, he would “get fucked.” 30 24. The officer handcuffed Gabriel and took him back to the small holding room. There, he handcuffed Gabriel’s right arm to a ring affixed to the wall. 31 At Area 5, Gabriel was permitted to use the restroom only once. His subsequent requests for the restroom were refused. Thus, Gabriel was forced to urinate in a jar that had been left in the room. 32 26 R. 1505, 1516, 1542. R. 1507, 1512, 1520. 28 R. 716-17, 2052. 29 R. 717-18, 2053. 30 R. 718-19. 31 R. 720, 722, 746. 32 R. 750, 757-58. 27 8 25. While Gabriel spent much of this first day confined and confused about what was happening, Detective Reynaldo Guevara actively interrogated Adriana Mejia. At that time, Detective Guevara had been with Area 5’s violent crime unit for fifteen years. 33 He was a fluent Spanish speaker and had been called in early on April 3 to participate in the interrogation of the Mejia household residents. 34 26. Detective Guevara first interrogated Adriana Mejia in his office. 35 At that point, Adriana gave Detective Guevara what would be the first of three varying accounts of the crime. She denied involvement in the Soto murders but said that she had paid a woman named Norma Salazar $600 for the baby girl. 36 Adriana did not implicate herself, Gabriel Solache, or Arturo Reyes in this account. 37 Adriana was then moved to a small cell, where she waited for a number of hours. 38 Adriana described the “cell” as a small room that had a chair, a bench, and a place on the wall to handcuff people. She noted that there were no bars on the window in the door, or the window along the door, but it was covered. 39 27. According to Guevara, after he spoke with Adriana, the investigation focused on Norma Salazar. 40 The police brought someone named Norma Salazar to Area 5 and placed her in a lineup, which was viewed by Adriana. Following the lineup, Norma Salazar was released. 41 28. Detective Guevara then took Adriana to a downtown police station for a polygraph examination. 42 Upon returning from the polygraph, Adriana was taken to a room with 33 R. 1635 R. 800, 1636-37. 35 R. 310, 841, 1636. 36 R. 310-11, 321, 1637-38. 37 R. 310-12, 322. 38 R. 842. 39 R. 889. 40 R. 1637-38, 1698. 41 R. 1699-1701. 34 9 a desk. She sat in a chair by the desk facing Detective Guevara, who was also seated at the desk. 43 Again he interrogated her, and again she refused to admit involvement in the Soto murders. Detective Guevara reached across the table and grabbed Adriana’s hair. 44 He pulled her head towards him across the desk and told her that he was tired of her lies. 45 He then moved her to a different chair and sat down in front of her. 46 Detective Guevara and Adriana sat just two feet apart and the questioning continued. 47 Detective Guevara again reached forward, this time striking her very hard with his hand in her upper back, near her left shoulder. 48 29. While Adriana was being interrogated, a group of Area 5 officers returned to the Mejia house and conducted a search. They were accompanied by Rosauro Mejia, Adriana’s husband, who consented to the search. 49 There, the officers seized a pair of Adriana’s shoes. 50 Preliminary tests on the shoes revealed the presence of blood. 51 30. At around 9:00 p.m., at Area 5 headquarters, Detective Guevara confronted Adriana with her bloody shoes. 52 That night Adriana agreed to give another statement—her second of three varying accounts of the crime. 53 31. Adriana stated that she had faked her pregnancy and was desperate to find a baby. She said that she agreed to pay Arturo Reyes $600 if he would help her. She went on to state the following: After seeing the Soto baby and mother at a clinic, Adriana followed them home to see 42 R. 845-46, 1640. R. 892-95. 44 R. 892-93. 45 R. 845. 46 R. 894. 47 R. 894-95. 48 R. 895-97. 49 R. 1851, 1853, 1855. 50 R. 1853-54. 51 R. 300-01, 312, 1643-44, 1704, 1740-42. 52 R. 300-01, 1702. 43 10 where they lived. Adriana and Arturo then traveled to the Soto house together. Arturo picked the lock of the Soto apartment in order to open the door. After entering the apartment, Adriana and Arturo hid in a closet next to the front door. They heard a baby cry and saw a woman open the refrigerator and then walk back into the bedroom. Arturo followed the woman into the bedroom. Adriana then heard someone yelling, “who are you, what are you doing here.” Arturo and a man came back into the room; Arturo was holding the man by the neck of his shirt and stabbing him. The man fell face-up on the floor squirting blood. Arturo then went back to the bedroom, grabbed the woman by the hair, threw her to the floor, and stabbed her in the back numerous times. 54 At no time while giving this statement did Adriana implicate Gabriel Solache. Day Two of the Interrogations: April 4, 1998 32. During the early morning hours of April 4, 1998, Detective Guevara shifted his focus to Arturo Reyes. 55 Guevara told Arturo that Adriana had implicated him in the crime. Arturo denied involvement. 56 33. At around 3:00 p.m. on April 4, 1998, Detective Guevara had a second conversation with Arturo. 57 According to Detective Guevara and strongly disputed by Arturo Reyes, Arturo then admitted to being present during the crime and said that Gabriel Solache was also present. 58 34. At trial, Arturo Reyes gave a very different account of his interrogation. Arturo testified that he was first questioned by Detective Guevara in the small room where he had been 53 R. 290-302. See Detective Rutherford’s notes, attached as Exhibit C. 55 R. 334, 1644, 1678. 56 R. 326. 57 R. 326-27, 1714. 58 R. 304-05. 11 54 detained ever since arriving at the station the day before. 59 During this period of questioning, only Detective Guevara and Arturo Reyes were in the room, and Detective Guevara hit Arturo across the face. 60 35. Arturo testified that Officer Trevino subsequently took him from the small interrogation room to a larger conference room. 61 There, Detective Guevara wrote on a blackboard and asked Arturo if he recognized what he (Guevara) had written. Arturo said no. Guevara then stated that Arturo was letting Adriana blame him for the crime, and that it was a mistake for him not to do anything for himself, and that he was going to get the electric chair. 62 36. Later that day, Detective Guevara continued the interrogation. 63 He demanded that Arturo stop saying “no” to his questions. When Arturo thereafter said “no” in response to a question, Detective Guevara grew annoyed, called Arturo a liar, and slapped him across the face with an open hand. 64 The pattern continued until Arturo’s cheek and ear were burning with heat. 65 During this interrogation session, Detective Guevara hit Arturo at least five times. 66 37. Officer Trevino later moved Arturo from the small interrogation room to the larger conference room. 67 There, Officer Trevino gave Arturo a sandwich and told him that he wanted to help. 68 They were joined by Assistant State’s Attorney Thomas O’Malley. The three men began a conversation. Assistant State’s Attorney O’Malley did not speak Spanish, so after 59 R. 2102-03. R. 2103-04. 61 R. 2108-09. 62 R. 2110. 63 R. 1704, 2113. 64 R. 630, 634-35, 2114, 2188. 65 R. 2187-89. 66 R. 2114. 67 R. 2116. 68 R. 631-32, 636. 60 12 he would say something in English, Officer Trevino would speak to Arturo in Spanish. 69 Trevino’s questions concerned matters unrelated to the crime. Trevino asked Arturo where he was born, for example, and inquired about his family. During this conversation, Assistant State’s Attorney Thomas O’Malley wrote on paper. 70 After O’Malley was done writing, Officer Trevino told Arturo that he had to sign the papers before Officer Trevino could help him. 71 Arturo did as he was told. Arturo had no idea what he was signing because he did not speak or read English and the hand-written statement was never read aloud. 72 The statement was completed at approximately 2:00 a.m. on April 5. 38. After the interrogation of Arturo Reyes, Detective Guevara began focusing his attention to Gabriel Solache. 73 Gabriel Solache had never before been arrested, either in the United States or in Mexico. 74 By this time, Gabriel had been in custody for well over 24 hours. 75 Throughout his detention, Gabriel had spent most of this time in a small interrogation room with his right hand handcuffed to a ring on the wall, sitting on a metal bench. 76 39. Detective Guevara entered the room and told Gabriel that he had better tell the truth or things would go badly for him. 77 When Gabriel said that he had already told the other officer all he knew, Detective Guevara called Gabriel a liar and began beating him with an open 69 R. 2116-19. R. 632, 2118-19. 71 R. 636, 666. 72 R. 633-34, 636, 658, 2119-20. 73 R. 308, 310. 74 R. 728, 2373. 75 R. 307, 740, 1715, 1970. 76 R. 716, 722, 746, 2051-52, 2066. 77 R. 2054. 70 13 hand on the left side of his face. 78 As a result, Gabriel suffered severe hearing loss in his left ear. 79 He now wears a hearing aid, without which he would be unable to hear with that ear. 80 40. Detective Guevara then returned to Adriana Mejia’s interrogation room and pressed her for information about Gabriel. 81 Guevara told Adriana that Arturo Reyes had just implicated Gabriel Solache in the crime. 82 Guevara continued to question Adriana and she eventually gave another statement—her last of three varying accounts of the crime—in which she stated that, yes, both Arturo Reyes and Gabriel Solache had participated in the Soto murders. 83 Thus, by the end of day two, Adriana Mejia had implicated every male resident of the Mejia household in custody except her husband, Rosauro Mejia. 41. After three days in custody, Rosauro Mejia was finally released without being charged. Rosauro later testified that he, too, was beaten by Detective Guevara. 84 42. After Adriana gave her third statement, Detective Guevara grabbed her by the arm and took her to Gabriel Solache’s interrogation room. 85 There, Detective Guevara confronted Gabriel with Adriana’s accusation. He asked Adriana whether Gabriel was the man who killed the Sotos, and Adriana said yes. 86 When Gabriel refused to admit involvement in the crime, 78 R. 720-22, 2054, 2066. R. 723-24, 2060-62. 80 Cherie Dalbke, an audiologist employed by the jail, testified that she tested Solache’s hearing on July 14, 1998. R. 2028. At that time Solache had a severe, and perhaps profound, loss of hearing in his left ear. R. 2030. Dalbke tested Solache’s hearing again on August 25, 1998, and by that time he could hear nothing with his left ear. R. 2031. The State argued that Solache’s hearing loss was the result of a July 1997 car accident. While Solache did sustain injuries to his head in the accident, he did not lose his hearing and did not require a hearing aid. R. 2042, 2043, 2060. 81 R. 308, 316, 317-18, 1714. 82 R. 306. 83 Id. 84 R. 1974 85 R. 850, 907. 86 R. 870, 909, 2055. 14 79 Detective Guevara hit him. 87 Adriana later testified that she saw Detective Guevara hit Gabriel “very hard” across the left side of his head. 88 43. Guevara left the interrogation room with Adriana Mejia and returned alone. 89 He began hitting Gabriel in the stomach and continued to accuse him of the crime. 90 Suffering from pain in his stomach and head, along with ringing in his ears, Gabriel acquiesced. 91 Unable to “stand the beating anymore,” Gabriel told Detective Guevara that, yes, he had killed the man. 92 Day Three of the Interrogations: April 5, 1998 44. Detective Guevara stopped beating Gabriel and left the room. He returned shortly thereafter with Assistant State’s Attorney Heather Brualdi. Brualdi testified that she began her interview with Solache at 11:25 p.m. on April 4, 1998, more than forty hours after Gabriel Solache first brought the boy to the police station. 93 At this point, Brualdi testified, Gabriel gave an oral statement. The conversation lasted between 45 minutes and an hour. 94 Brualdi testified that she did not speak Spanish and was not able to understand any of what was said between Gabriel and Guevara. 95 Thus, Brualdi relied on Guevara to serve as translator. 45. Gabriel testified that he never gave an account of the crime during Brualdi’s interview. Rather, Guevara would narrate an event relating to the crime in Spanish and direct 87 R. 852, 909. R. 911. 89 R. 722, 2055. 90 R. 723, 2055-56. 91 R. 723. 92 R. 723, 2056. 93 R. 367, 1862. 94 R. 1866. 95 R. 1863, 1884. 88 15 Gabriel to confirm what was said. 96 Gabriel would do so, and then Guevara would speak to Brualdi in English. 97 46. Based on Detective Guevara’s statements, Brualdi would take notes on a pad of paper. This pattern continued until the full statement was gathered. 98 47. Brualdi testified that the statement she prepared contained the following account of the crime: Adriana Mejia traveled with both Arturo Reyes and Gabriel Solache to the Soto apartment. When a woman came to the door, Arturo pushed his way inside, stabbing her in the upper chest. The woman then fell to the ground near the front door and Adriana stabbed her multiple times. Gabriel grabbed a knife from the kitchen table, went to the bedroom, and stabbed a man who was asleep on the bed, next to a little boy. Gabriel then ran outside to the car; Adriana and Arturo soon followed with the baby and the little boy. Gabriel drove Adriana to the hospital, where she got out of the car with the children. Gabriel then drove to the Mozart house with Reyes. When Gabriel came to the police station he was wearing the gym shoes he wore when he stabbed the man, and he noticed blood on them. He was treated well by the police and Brualdi. 99 48. Gabriel Solache was never given an opportunity to review the statement prepared by Brualdi, because it was never translated into Spanish. Although Gabriel could not read English, Detective Guevara told Gabriel to sign the statement, and Gabriel did so. 100 Inconsistencies Between Gabriel Solache’s Statement and the Crime Scene 49. Officer David Valentin, Jr., was the first officer to enter the Soto apartment after the crime was discovered. Immediately upon entering the apartment he saw Mariano Soto’s body 96 R. 2056-57, 2072-73. R. 1863, 2073-74. 98 R. 1867-68. 99 R. 1877-79. The document signed by Solache purporting to be Solache’s statement is attached as Exhibit D. 16 97 lying in the front hall, about five feet from the door. He then stepped over Mariano Soto’s body and continued into the apartment, where he found Jacinta Soto’s body covered by a blanket in the bedroom. 101 50. Detective Ernest Halvorsen was the next officer to arrive at the scene with his partner, Detective Reynaldo Guevara. 102 Detective Halvorsen observed Mr. Soto’s body near the front door and Mrs. Soto’s body in the bedroom. 103 51. The statement that Gabriel Solache signed is thus critically flawed in that it failed to match the positioning of the Soto bodies. According to the statement signed by Gabriel Solache, Mrs. Soto came to the front door and was stabbed there by her attackers, while Mr. Soto was stabbed in the bedroom. It is clear from the testimony of the responding officers, however, that Mrs. Soto could not have been stabbed near the front door, as described in Gabriel’s statement, because she was found stabbed to death in the bedroom. Likewise, Mr. Soto could not have been stabbed to death in the bedroom, as set forth in Gabriel’s statement, because he was found stabbed to death near the front door. 52. In addition, as discussed further below, there was no blood found on Gabriel Solache’s shoes, despite the fact that his statement said he noticed blood on them. In two demonstrable respects, then, Gabriel Solache’s statement failed to match the physical evidence in this case. 100 R. 2058. R. 1415-1419. 102 R. 1425. 103 R. 1426-27. 101 17 Lack of Physical Evidence Linking Gabriel Solache to the Crime 53. Dr. Barbara Wilson, a forensic serologist for the state police and the prosecution’s DNA expert, testified that she performed DNA analysis on the following items of evidence: Adriana Mejia’s shoes (exhibit 19), Adriana Mejia’s pants (exhibit 27), the knife found under Mr. Soto’s arm (exhibit 12), the knife found behind the couch (exhibit 11), a green towel from a 1984 Toyota Corolla (exhibit 18), a kitchen towel found at the scene (exhibit 23), a baby blanket found at the scene (exhibit 24), and the baby pants found at the scene (exhibit 25). 104 For DNA comparison, Dr. Wilson received blood standards from the victims, Mariano and Jacinta Soto, and the three defendants, Gabriel Solache, Arturo DeLeon Reyes, and Adriana Mejia. 105 Dr. Wilson was not supplied with standards from any of the other adults in the Mejia household, including Rosauro Mejia, Guadalupe Mejia, Carlos Martinez, or Martin Vaca. 106 54. There was substantial physical evidence linking Adriana Mejia to the crime. Adriana Mejia’s blood was found on the knife recovered from behind the couch in the Soto apartment and on the green towel recovered from the 1984 Toyota Corolla—the car the prosecution believed to be used in the crime. 107 Further, Mariano Soto’s blood was found on Adriana Mejia’s shoes and pants. 108 55. Conversely, none of the evidence indicated that Gabriel Solache was involved in the crime. His DNA was not present on any of the items tested. 109 His fingerprints were not found at the scene or on any evidence taken from the scene. 110 While Gabriel was being 104 R. 1603-1607. R. 1622. 106 R. 1622-1623. 107 R. 1618. 108 R. 1604-05. 109 R. 1611-22, 1628. 110 R. 1438-39. 105 18 interrogated, his shoes were confiscated for purposes of serological testing. No blood was found on them. 111 Presence of Unknown DNA 56. With regard to the green towel recovered from the car (People’s Exhibit 18), in addition to the presence of Adriana’s DNA, there was DNA present that did not match any of the three defendants or either of the two decedents. It was the expert’s belief that the source of this unknown DNA was a male, unrelated to the defendants who provided samples in this case. 112 Dr. Wilson also detected unknown DNA in three of the blood stains on Adriana’s shoes. 113 57. To date, the unknown DNA has not been identified. The presence of unidentified DNA with Adriana’s DNA on critical pieces of evidence raises the possibility that a heretofore unidentified individual was involved in the crime with Adriana. PRETRIAL, TRIAL, AND APPELLATE PROCEEDINGS Defense Efforts to Adduce Evidence of Other Complaints Against Guevara 58. Prior to trial, on August 24, 1999, defense counsel filed subpoenas with the Chicago Police Department’s Office of Internal Affairs and Office of Professional Standards (OPS) requesting copies of any and all complaints, investigations, and findings regarding Detective Reynaldo Guevara. 114 59. On September 1, 1999, during a continuation of the suppression hearing, the prosecution indicated that its next witness would be Reynaldo Guevara. Defense counsel objected to Guevara testifying at that time because she had not received any response to the 111 R. 1578, 1575. R. 1612-14. 113 R. 1616-17. 114 See subpoenas, attached as Exhibit E. 112 19 subpoenas. 115 Defense counsel intimated that Guevara had been involved in misconduct in another case she had defended—a death penalty case that was eventually nolle’d by the prosecution. 116 Defense counsel continued, “I believe there are other matters that would be pending before OPS or Internal Affairs and I would need those matters before I will be able to cross-examine Detective Guevara.” 117 Defense counsel reiterated that she did not know what would be turned over but that “based on my prior experiences, that there will be material there that would be beneficial for Mr. Solache’s case.” 118 The court agreed that Guevara should not be called as a witness until the issue had been resolved. 119 60. On October 4, 1999, defense counsel informed the court that the Corporation Counsel of Chicago had contacted her and said that they would respond to the subpoenas by delivering the records to the judge’s chambers that day. The prosecution requested that any files turned over be examined by the court in camera to determine relevancy. 120 The judge then suggested, without objection from either party, that the case be reset for October 25, and that in the interim he examine any files turned over and make a relevancy determination. 121 61. On October 25, 1999, the parties appeared in court along with Mark Wallace from the Corporation Counsel’s Office for a hearing on the status of the subpoenaed records. Defense counsel began by stating that she wanted to review the OPS files before Detective Guevara testified. The court responded that “[t]here is nothing in the ones I got that would be of assistance 115 R. 361. Id. 117 R. 362. 118 R. 363. 119 R. 364. 120 R. 460. 121 Id. 116 20 to anybody.” 122 The court elaborated by stating that four Complaint Register (CR) files regarding Detective Guevara had been turned over to him and that he had read: (a) CR 236739, involving an incident in which Detective Guevara had transported a man from Texas to Illinois. The man complained that he had not been given proper medical treatment for an injury that he had sustained in Texas. When asked by defense counsel whether the injury had been inflicted by Detective Guevara, the court responded, “no.” 123 The court further said, “[t]here is nothing in that entire file which I have read which could be relevant on a Motion to Suppress as far as I can see.” 124 (b) CR 23398, involving a domestic dispute between Detective Guevara and his stepdaughter. (c) CR 248946, involving a domestic dispute between Guevara and his wife. (d) CR 217264, involving a 1995 complaint. The complainant did not follow up and the police did not interview the complainant. According to the court, there was “[n]othing in the file that would be relevant for any Motion to Suppress or alleged physical coercion by Detective Guevara.” 125 62. The court then informed the parties that there were three additional complaint register files that the Corporation Counsel had refused to turn over because they were pending matters. Those files were numbered as follows: CR 220046; CR 251502; and CR 255698. 126 The court explained that because they had not been turned over, he could not read them or make a 122 R. 466. R. 467. 124 R. 467. 125 R. 467-68. 126 R. 466-67. 123 21 determination as to relevancy. 127 The court returned the four reviewed files to the Corporation Counsel, and asked the Corporation Counsel to keep track of them and make them available should they be needed on appeal. 128 63. During the suppression hearing, over objection of the prosecution, Maria Rivera testified on behalf of both Solache and Reyes about her prior experience with Detective Guevara. 129 Rivera testified that she spoke with Guevara at her home on August 9, 1996, regarding a shooting that had occurred in her neighborhood. 130 Rivera told Guevara that she did not see who had done the shooting. 131 Despite this, Guevara asked her to view a lineup, and she agreed. 132 On September 26, 1996, Rivera viewed a lineup and did not identify anyone. 133 On October 18, 1996, Guevara contacted Rivera again and asked her to view a second lineup. 134 Prior to viewing this lineup, Guevara pointed out a specific individual and told Rivera to identify him as the individual who did the shooting. 135 According to Rivera, she falsely identified the individual because “[he] forced her” to do so and “[she] knew a lot of things about [Guevara].” 136 Rivera further testified that in the presence of her attorney, she told an assistant state’s attorney that she had falsely identified an individual in a lineup after Guevara told her to do so. 137 127 R. 466. R. 468. 129 R. 595-96. 130 R. 597. 131 R. 598. 132 R. 599. 133 R. 601. 134 Id. 135 R. 601-02. 136 R. 606-07. 137 R. 602-03. 128 22 64. At the conclusion of Rivera’s testimony, defense counsel, over the prosecution’s objection, introduced evidence that the prosecution later abandoned the murder charges in People v. Angel Gaya 138 against the individual that Rivera falsely identified in the lineup. 139 65. The court asked defense counsel about the relevance of Maria Rivera’s testimony, and defense counsel responded that “it’s our contention that—well, that Detective Guevara has used coercion in obtaining the statements from—not only from Mr. Reyes but I’m speaking for Miss Rouse also for Mr. Solache. Judge, we think that this evidence is relevant because, in fact, he has used those—that same technique in the past this time with a witness but in fact in another homicide case.” 140 The court ruled that Maria Rivera would be allowed to testify and that he would decide later what weight to give her testimony. 141 66. In ruling on Solache’s voluntariness claim, however, the court gave no weight to Rivera’s testimony, finding that it did not impact this case because it involved a gang crime, in which witnesses often recant identifications and later blame the police for making the identifications. In addition, the trial court found that even if the scenario described by Rivera were true, it had no effect on how Guevara acted years later in the instant case. 142 67. On December 12, 2000, after the jury had found Solache guilty but before he was sentenced, defense counsel filed a motion requesting that the sentencing hearing be held in abeyance in order to give the Mexican Government time to investigate complaints against Guevara. 143 The motion further alleged that based on new information, defense counsel believed 138 Cook County No. 96 CR 27341-02. R. 609-10. 140 R. 603-04. 141 R. 604. 142 R. 1011. 143 C. 333. 139 23 there were additional complaint register files regarding Guevara that the judge had not seen, but that had been delivered to Judge Edward Fiala’s chambers on December 5, 2000. Defense counsel requested that the court review the files and then tender them to defense counsel for review. 144 68. On December 15, 2000, a hearing was held on the motion. 145 At that time, defense counsel tendered a letter from the Mexican Consulate in support of its request that the sentencing hearing be held in abeyance until the Mexican Government had time to investigate complaints against Guevara. Defense counsel noted that additional complaint register files about Guevara had been tendered to Judge Fiala and that Judge Fiala had impounded the files. 146 The court stated that on December 13, 2000, after receiving defense counsel’s motion, he had arranged to have those files delivered to him and had reviewed the contents of those files. 147 The court stated that the files he had received were under seal and consisted of “two manila envelopes of someone named Voytek Dempski and others, Case No. 97-CR-15981.” 148 The court stated that there now appeared to be a total of seven complaint register files, the earliest from March 21, 1996, and the latest from August 13, 2000. The court further stated that of these seven files, “at least four or five of those we had before.” The court ruled that after reading the files, “[t]here is nothing in any of those that is relevant to any issues in the case before me regarding Gabriel Solache or Arturo DeLeon Reyes.” 149 The court then denied defense counsel’s request to hold the sentencing hearing in abeyance. 150 144 C. 333-34. R. 2496. 146 R. 2498. 147 R. 2498-99. 148 R. 2499. 149 R. 2500. 150 R. 2500-01. 145 24 Trial Proceedings 69. Gabriel Solache’s trial by jury commenced on June 14, 2000. Arturo Reyes was tried at the same time with a separate jury. Adriana Mejia pleaded guilty and was sentenced to natural life imprisonment. Neither Reyes nor Adriana Mejia testified against Solache. 70. The juries convicted both Solache and Reyes of murder, aggravated kidnaping, and home invasion. 151 Having waived his right to be sentenced by a jury, Solache’s case proceeded to a bench sentencing hearing. 152 The court found four aggravating factors and ruled that Solache was eligible for a death sentence. 153 71. During the second stage of the hearing, the prosecution presented a victim impact statement prepared by the decedents’ niece. 154 Solache had no prior criminal record, either in the United States or in Mexico. 155 In mitigation, the defense presented videotaped interviews of a number of Solache’s family members who resided in Mexico. 156 The defense also presented employment records demonstrating that Solache worked full time before his arrest. 157 72. The court sentenced Reyes to life in prison but sentenced Solache to death. Solache was also sentenced to thirty years in prison for each count of aggravated kidnaping and for home invasion. 158 Solache’s motion to reconsider his sentence was denied on January 17, 2001. 159 Notice of appeal was filed the same day. 160 151 Supp. Rec. R. 112; R. 2255. R. 1075. 153 R. 2352. 154 R. 2361-2369; C. 256-257. 155 R. 2373. 156 R. 2502. 157 C. 309-332. 158 R. 2533-36. 159 R. 2571. 160 C. 348. The Appellate Court affirmed the judgment against Reyes in an unpublished order. People v. Reyes, No. 1-01-2875 (1st Dist. Sept. 30, 2003). 25 152 Direct Appeal 73. On direct appeal, appellate counsel raised eight issues, five of which challenged the imposition of the death penalty. With regard to guilt/innocence, appellate counsel raised the following three claims: (1) Gabriel Solache’s confession should have been suppressed because it was obtained after the State failed to notify him of his right to contact the Mexican Consulate; (2) after finding that Gabriel Solache was arrested without probable cause, the trial court erred by finding that 35 hours of isolation in custody and his confrontation with statements improperly obtained from his co-defendants attenuated the effects of his illegal arrest; and (3) Gabriel Solache confessed because he was abused by a Chicago police detective and his involuntary statement should have been suppressed. 74. The Appellate Court affirmed and made the following findings regarding the voluntariness of Solache’s statement: The instant case hinges entirely on credibility. As detailed above, this determination was for the trial court to make, which it did—against defendant. Specifically, the trial court did not find defendant’s claim of abuse/beatings credible and did not find his claim that Adriana witnessed such abuse credible. Conversely, the trial court found the evidence credible that no injuries were observed on defendant and that he made no complaints of any injuries, as testified to by Assistant State’s Attorney Brualdi, Basurto, and Musa. It is not for this court to second guess the trial court’s decision, particularly given that it was specifically based on the demeanor of the witnesses during their testimony. Moreover, as noted above, the trial court was not required to give more credence to defendant’s claim over that of Detective Guevara, who denied striking defendant. 161 161 See Exhibit A at 31-32. 26 CLAIM I – NEWLY DISCOVERED EVIDENCE Newly Discovered Evidence Of Repeated Physical And Mental Coercion Of Suspects And Witnesses By Detective Guevara, And Numerous Incidents Of Other Violent, Illegal, And Unethical Conduct, Requires A New Trial Where Petitioner’s Conviction Rests Solely On Guevara’s Testimony And Where Petitioner’s Defense Was That Guevara Beat Him Into Making A False Confession. 75. A claim of newly discovered evidence of actual innocence is cognizable under the Post-Conviction Hearing Act as a matter of due process. People v. Washington, 171 Ill. 2d 475, 489 (1996). Such a claim warrants relief where the evidence is new, material, noncumulative, and conclusive enough to probably change the result on retrial. Id. 76. Substantial new evidence has emerged that Detective Reynaldo Guevara engaged in a course of conduct spanning at least 15 years in which he beat and otherwise coerced suspects and witnesses into making statements. This evidence of a common scheme by Detective Guevara supports Gabriel Solache’s persistent claim that he confessed to the crime only because Detective Guevara beat him. 77. Additional new evidence suggests that during the same time span, Guevara consistently engaged in unethical and even illegal conduct. This evidence severely undermines Guevara’s credibility—in a case that entirely depended on the believability of this officer. 78. Solache made a pretrial motion to suppress his custodial statement on the ground that his statement was the product of a beating by Detective Guevara. C. 88-90. A suppression hearing took place and the court denied the motion, finding that the police officer’s denials were more credible than Solache’s uncorroborated claims of abuse. The court noted that Solache never complained to anyone at the police station and that there was no physical evidence of injury. R. 1006-07. 27 79. On appeal, the Appellate Court upheld the denial of the suppression motion, reasoning as follows: The instant case hinges entirely on credibility. As detailed above, this determination was for the trial court to make, which it did—against defendant. Specifically, the trial court did not find defendant’s claim of abuse/beatings credible and did not find his claim that Adriana witnessed such abuse credible. Conversely, the trial court found the evidence credible that no injuries were observed on defendant and that he made no complaints of any injuries, as testified to by Assistant State’s Attorney Brualdi, Basurto, and Musa. It is not for this court to second guess the trial court’s decision, particularly given that it was specifically based on the demeanor of the witnesses during their testimony. Moreover, as noted above, the trial court was not required to give more credence to defendant’s claim over that of Detective Guevara, who denied striking defendant. See Exhibit A at 31-32. 80. Although the issue of the voluntariness of Solache’s confession has been previously litigated, in the interest of fundamental fairness, the doctrine of res judicata may be relaxed if the defendant presents substantial new evidence. People v. Patterson, 192 Ill. 2d 93, 139 (2000). 81. Petitioner now stands ready to present substantial new evidence that Detective Guevara systematically used improper techniques, including excessive physical force, to coerce false statements from suspects and civilians, and more generally engaged in illegal and unethical conduct, as follows: (1) In 1982, Detective Guevara and another officer arrested and physically assaulted Annie Turner for smoking on a bus. Guevara called her a “bitch” and pushed her out the back door of the bus. He twisted her arm, threatening to “snap” it, and handcuffed her so tightly that her skin broke. He also hit her across the face with a metal bracelet he was wearing and called 28 her a “nigger bitch.” Turner sought medical treatment and filed a complaint with the Office of Professional Standards. See Group Exhibit 1. (2) In 1982, Detective Guevara and three other officers broke through Almarie Lloyd’s locked front door and conducted a warrantless search of her home. When Lloyd asked who they were, she was told to shut up. The officers terrified Lloyd, her brother, and two children, and left the home in shambles. Lloyd filed a complaint with the Office of Professional Standards the next day. See Group Exhibit 2. (3) In 1983, Detective Guevara and other officers forcibly removed Leshurn Hunt from his home and handcuffed him to a ring in the wall at the police station where he was beaten about the head, face, and body until he confessed to murder and robbery charges. Hunt was detained for approximately 23 hours and deprived of food, water, and sleep until after he confessed. Hunt sought medical treatment for his injuries and filed a complaint with the Office of Professional Standards. Witnesses who saw Hunt while in custody corroborated his claim of a beating by the police. The criminal court judge suppressed Hunt’s confession, and a jury returned a favorable verdict in a related civil rights action on Hunt’s claim of excessive detention against the City of Chicago. 162 See Group Exhibit 3. (4) In 1984, Detective Guevara and other officers physically assaulted Graciela Flores and her 13-year-old sister Ana during a search of their home, during which the officers did not identify themselves as police. Guevara repeatedly slapped Graciela, called her “a bitch” and 162 In his civil rights action against a number of named Area 5 police officers, including Detective Guevara, Hunt alleged a “pervasive pattern” among Guevara and other Area 5 officers of excessive use of force during arrest and interrogation. The federal district court ruled that this claim was sufficient to survive the defendant’s motion to dismiss. See Hunt v. Jaglowski, 655 F. Supp. 681, 685 (N.D. Ill. 1987). 29 pulled her hair. As a result of this incident, Graciela’s arm was put in a sling and she spent one week in the hospital. See Group Exhibit 4. (5) In 1985, Detective Guevara attempted to coerce a false statement from Reynaldo Munoz. Guevara handcuffed Munoz and put him in the back of a squad car. When Munoz denied knowing the people Guevara was asking about, Guevara repeatedly hit him in the mouth with his fist. Guevara then took Munoz to rival gang territory where he allowed rival gang members to spit on Munoz and beat Munoz about the head. See Exhibit 5. (6) In 1986, Detective Guevara and two other officers coerced a confession from Daniel Pena by beating him about the face and ribs with their hands and about the groin and thighs with flashlights during an interrogation. Pena was taken to see a doctor where he complained about being beaten by the police. The doctor found bruising to Pena’s legs and abrasions and lacerations to Pena’s nose. Family members corroborated Pena’s claim that he had been beaten while in police custody. See Group Exhibit 6. (7) In 1986, Detective Guevara pulled over Melvin Warren because Warren cut him off while driving westbound on Augusta Boulevard. Guevara called Warren a “nigger dog” and “threatened to tear [Warren’s] head off.” Guevara hit Warren in the face with a closed fist and then forced him down into the front seat of his car and began to choke him. Two eyewitnesses confirmed that Guevara initiated the beating. In response to this incident, Warren sought medical treatment and filed a complaint with the Office of Professional Standards (OPS). OPS sustained Warren’s allegations that Guevara had physically and verbally assaulted him and recommended that Guevara be reprimanded. See Group Exhibit 7. 30 (8) In 1986, Detective Guevara threw Rafael Garcia against a car, struck him in the face several times, kicked him and hit him in the head. Garcia filed a complaint with OPS. Although Guevara denied the charges, Garcia’s complaints were corroborated by physical evidence, as he was treated at the hospital for lacerations to the head. After an investigation into the incident, OPS found that Guevara had lied about the incident and recommended that Guevara be suspended for two days. See Exhibit 8. (9) In 1989, Detective Guevara coerced a false confession from Victor Vera by transporting him to rival gang territory and threatening to release him unless he confessed to the murder of Edwin Castaneda. Fearing for his life, Vera agreed to confess to a crime he knew nothing about. See Exhibit 9. (10) In 1989, Detective Guevara coerced Virgilio Calderon Muniz into making a false identification by threatening that if Calderon Muniz did not identify Victor Vera as the murderer, Calderon Muniz would have “trouble” the next time Guevara saw him. See Group Exhibit 10. (11) In 1989, Detective Guevara coerced Samuel Perez into falsely identifying Juan Johnson as the person who killed Ricardo Fernandez. Guevara put Perez inside his car, showed Perez a photo of Juan Johnson, and told Perez that he wanted Juan Johnson to take the blame for the murder. Because Guevara had a reputation in the neighborhood for “hooking people up,” Perez understood Guevara’s statement as a threat that if he did not identify Juan Johnson, he would be framed for the murder. See Exhibit 11. (12) In 1989, Detective Guevara coerced Virgilio Muniz into making a false identification by repeatedly threatening Muniz that if he did not identify Manuel Rivera as the murderer, Muniz would “go down for the murder.” See Exhibit 12. 31 (13) In 1991, Detective Guevara coerced Wilfredo Rosario into making a false identification and giving false testimony before the Grand Jury by threatening Rosario that if he did not identify Xavier Arcos as the murderer, Rosario would be “pinned” for the murder. Guevara fed Rosario details of the crime, such as the number of shots fired, the type of vehicle used in the crime, and the participants in the crime. Rosario recanted his identification of Arcos at trial. Though Arcos was still found guilty of murder by a jury, the appellate court overturned the conviction based on the lack of sufficient evidence. See Group Exhibit 13. (14) In 1991, Detective Guevara coerced David Rivera into signing a confession for murder by intimidation, threats and inducements. Guevara told Rivera that if he confessed he would serve 7 years in prison whereas if he did not confess he would be sent away for 50 years. Guevara then promised Rivera that if he signed a statement, he could go home. See Exhibit 14. (15) In 1991, Detective Guevara physically coerced David Velazquez into making a false identification and giving false testimony by beating him while chained to a wall at Area 5 and threatening to “get you for anything I can” if he did not talk. All of the details of Velazquez’s statement were provided by Guevara. See Exhibit 15. (16) In 1991, Detective Guevara coerced a false confession from Daniel Rodriguez through the use of threats and intimidation. While en route to the police station, Guevara threatened to harm Rodriguez’s family if he did not cooperate. Once at Area 5, Rodriguez was chained to a wall, denied food, water, and use of a restroom, and beaten by Guevara’s partner Detective Ernest Halvorsen in the chest and torso. Guevara provided details of the crime to Rodriguez to include in Rodriguez’s false confession. See Exhibit 16. 32 (17) In 1992, Detective Guevara engaged in misconduct when he interrogated Jacqueline Montanez without a youth officer present. The appellate court reversed and remanded Montanez’s conviction for murder, noting that “not only was defendant interrogated before having an opportunity to confer with a concerned adult but, worse, any opportunity to do so was effectively frustrated by police.” See Exhibit 17. (18) In 1993, Detective Guevara coerced an identification from Carl Richmond by threatening Richmond that he could make his life very uncomfortable if Richmond did not identify Robert Bouto as the murderer of one of Richmond’s friends. Richmond, who was familiar with Guevara’s tactics, believed that Guevara would honor this threat. See Exhibit 18. (19) In 1993, Detective Guevara hit Armando Serrano in the face with an open hand while Serrano was shackled to a police-station wall in an attempt to get Serrano to confess to murder. When Serrano’s mother and father arrived at the police station they could hear their son screaming for a lawyer. See Group Exhibit 19 (to be supplemented at a later date). (20) In 1993, Detective Guevara used physical violence and inducements to coerce Francisco Vicente into giving false testimony at the joint trial of Armando Serrano, Jorge Pacheco, and Jose Montanez. When Vicente initially refused to cooperate, Guevara hit him in the head and then promised him money and a favorable disposition on unrelated pending charges. See Exhibit 20. (21) In 1993, Detective Guevara used physical force and threats to coerce a false confession from Adolfo Frias-Muñoz. Over the course of a two-day interrogation, Frias-Muñoz was handcuffed to a ring on the wall of the interrogation room, hit in the face with an open hand by Detective Guevara, and beaten by two other officers. Though isolated in a locked interrogation 33 room, Frias-Muñoz could hear his wife screaming and his son crying in another room. Guevara threatened Frias-Muñoz that if he did not confess, his wife would go to prison and his children would be taken away. Frias-Muñoz, who did not speak English, agreed to give a statement to an assistant state’s attorney. Frias-Muñoz spoke in Spanish and Guevara translated the statement so that the prosecutor could write the statement in English. Frias-Muñoz then signed a statement he could not read. See Exhibit 21. (22) In 1993, Detective Guevara arrested fifteen-year-old Elizer Cruzado and threatened him with life imprisonment if he did not make a statement implicating himself in a murder. Guevara also told Cruzado that he could go home and see his family again, but only if he agreed to make a statement. At the time, Cruzado had a limited ability to read and write. See Exhibit 22. (23) In 1994, Detective Guevara, after 14 hours of interrogation, coerced a confession from Adrian Duta by hitting him in the face with an open palm, punching him in the stomach, and telling him he could go home if he signed a statement. When Duta’s father came to see Duta at the station house, Duta was exhausted and crying, and repeatedly said that he did not know what he had signed and had only signed the document so he could go home. Although Duta had no visible bruises, he complained to his father of being struck in the head and stomach by Guevara. See Group Exhibit 23 (to be supplemented at a later date). (24) In 1994, Detective Guevara engaged in misconduct when, in advance of a live lineup, he showed Kennelly Saez photos of Roberto Almodovar and William Negron and told Saez that these were the guys who did the shooting. Guevara also told Saez not to mention the fact that he had shown the photos to Saez in advance of the lineup. Saez subsequently identified 34 Almodovar and Negron in the live lineup and testified against them at trial. Saez later recanted his identification testimony. See Group Exhibit 24. (25) In 1994, Detective Guevara engaged in misconduct when, in advance of a live lineup, he showed Jackie Grande photos of Roberto Almodovar and William Negron and told Grande that these were the guys who did the shooting. Grande identified Almodovar and Negron in the live lineup and testified against them at trial. See Exhibit 25. (26) In 1995, Detective Guevara engaged in misconduct when he told Luis Figueroa to falsely identify Angel Diaz as the perpetrator even though Figueroa did not see anything. Figueroa identified Diaz but recanted his identification at trial. See Group Exhibit 26. (27) In 1995, Detective Guevara engaged in misconduct when he told Jose Melendez to falsely identify Thomas Sierra as the killer even though Melendez did not see the shooter. Melendez identified Sierra but recanted his identification at trial. See Exhibit 27. (28) In 1995, Detective Guevara arrested Edwin Davila and, in an attempt to coerce a confession, chained him to the wall of an interrogation room and told him that he was going to frame him for murder whether he did it or not. After Davila told Guevara that he did not do it, Guevara forced Davila to participate in a lineup in which two witnesses identified Davila as the perpetrator. See Exhibit 28. (29) In 1995, Detective Guevara and his partner Detective Ernest Halvorsen coerced a confession from 17-year-old Santos Flores after handcuffing him to the wall of a locked interview room and refusing his requests for an attorney. During the course of the 11-hour interrogation, Guevara yelled at him, slapped him numerous times on the side of his head, and told him that if he did not confess he would never see the light of day. Flores eventually gave a 35 statement to the police indicating his involvement in the crime. Flores’s statement was ruled inadmissible on appeal on the grounds that it was elicited in violation of Miranda. See Group Exhibit 29 (to be supplemented at a later date). (30) In 1995, Detective Guevara coerced Gloria Ortiz Bordoy into making a false statement and testifying falsely against Santos Flores at trial. During Ortiz Bordoy’s six-to-eighthour interrogation, Guevara yelled in her face, threatened that her children would be taken by DCFS, called her “the B word,” and “raised his hand” saying that he “felt like smacking” her. Finally, without reading its contents, Ortiz Bordoy signed a statement that the detectives wrote out for her because she just wanted to “get out of there.” See Exhibit 30. (31) In 1995, Detective Guevara coerced Rodolfo Zaragoza, who was a victim and an eyewitness to the crime, into making a false identification and providing false testimony. Zaragosa was intimidated by Guevara and felt pressured to identify Ricardo Rodriguez because Guevara told him that Rodriguez was the shooter. See Exhibit 31. (32) In 1995, Detective Guevara coerced Evelyn Diaz into making a false identification and providing false testimony to the Grand Jury by threatening Diaz that if she did not identify Luis Serrano as the shooter, her children would be taken away by DCFS. Diaz did not testify against Serrano at trial. See Exhibit 32 (to be supplemented at a later date). (33) In 1996, Detective Guevara coerced Maria Rivera into making a false identification by making threatening gestures at her, unzipping his pants, and propositioning her. Rivera later told the prosecutor, in the presence of her attorney, that she had falsely identified an individual in a lineup at Guevara’s direction. The prosecution later abandoned murder charges against the individual whom Rivera falsely identified in the lineup. See Group Exhibit 33. 36 (34) In 1997, Detective Guevara coerced a false confession from Voytek Dembski by beating him while chained to a wall in a locked interrogation room. Dembski, a Polish National who did not speak English, was interrogated by Guevara without Miranda warnings, without notification to the Polish consulate, and without a Polish language interpreter. Dembski could not read the statement he eventually signed as it was written in English. See Exhibit 34. (35) In 1997, Detective Guevara coerced Robert Ruiz into making a false identification. Guevara detained Ruiz repeatedly over the course of a ten-day period, locking him in an interrogation room without food, water, or a bathroom. Though Ruiz kept telling Guevara that he did not see the shooter or the driver, Guevara told Ruiz whom to identify and what to say in his statement. Ruiz finally implicated the Santiago brothers in the murder because Ruiz believed that Guevara would continue to harass him until he changed his story. Ruiz recanted his identification at trial, and the judge found Freddy and Conception Santiago not guilty. The trial judge found it disturbing that Guevara was the lead detective in the case because the victim was Guevara’s nephew. See Exhibit 35. (36) In 1998, Detective Guevara repeatedly hit Rosauro Mejia—originally a suspect in this case—in an attempt to coerce a confession from him. Rosauro never confessed and was finally released after being held in custody for three days. See Exhibit 36. (37) In 1998, Detective Guevara repeatedly pulled Adriana Mejia’s hair and struck her once on the back of her neck while she was interrogated in this case. See Exhibit 37. (38) In 1998, Detective Guevara repeatedly threatened and beat Arturo Reyes in an attempt to unconstitutionally coerce Reyes into giving an incriminating statement. After two days of isolation and interrogation, Reyes provided a statement in this case. See Exhibit 38. 37 (39) In 1998, Detective Guevara repeatedly struck Gabriel Solache on the left side of his head and in the stomach while Solache was chained to the wall of a locked interrogation room. After 40 hours of interrogation, Solache gave a false statement so the beating would stop. Solache sought medical treatment for his injuries and sustained permanent hearing loss to his left ear. See Exhibit 39. (40) In 1999, Detective Guevara coerced a confession from Martin Rivera after chaining him to a wall of an interrogation room, making threatening gestures at him, punching him in the neck, and causing him to urinate on the floor. See Exhibit 40 (to be supplemented at a later date). (41) In 2001, the FBI authored a special report detailing the criminal activity of Chicago Police Officer Joseph Miedzianowski and his associates, including Detective Reynaldo Guevara. The report details that Guevara, while acting in his capacity as a police officer, would apprehend drug and gun dealers and then allow them to “buy their way of trouble.” According to the report, Guevara also took bribes to alter both positive and negative lineup identifications of murder suspects. Finally, the report states that Guevara, using an attorney as a conduit, would receive cash in exchange for the ultimate dismissal of murder cases he investigated. See Exhibit 41. 82. These incidents constitute evidence that, among other things: (a) Detective Guevara frequently resorted to violence and threats while acting in his capacity as a police officer, as reported by Gabriel Solache; (b) Guevara beat, slapped, and hit people about the head and body in order to coerce statements, as reported by Solache; (c) Guevara threatened adverse legal consequences in order to induce people to make statements, as reported by Solache; (d) suspects were often handcuffed to a wall while abused by Guevara, as reported by Solache; 38 (e) suspects were isolated in custody for lengthy periods of time, as reported by Solache; (f) Guevara fed details of crimes to individuals from whom he was attempted to coerce statements, as reported by Solache; (g) Guevara coerced people into making untrue statements, as reported by Solache; (h) Guevara had suspects sign statements that they were unable to read, as reported by Solache; and (i) Guevara lied about his misconduct and engaged in other dishonest and/or illegal behavior. 83. It is well understood that while evidence of other bad acts is not admissible to prove a propensity to commit those acts, such evidence is admissible for any other relevant purpose. People v. Bartall, 98 Ill. 2d 294, 312-14 (1983). Here, evidence of other acts of brutality and coercion to elicit statements could prove intent, plan, motive, and a course of conduct by Guevara, all of which are relevant to Solache’s claim that he was beaten. See People v. Reyes & Solache, 369 Ill. App. 3d 1, 18 (1st Dist. 2006) (attached as Exhibit B) (“evidence of other acts of brutality could be used to prove a course of conduct on the part of the officers involved and could be used to impeach these officers’ credibility”). 84. Moreover, even incidents that are remote in time can become relevant if evidence of other incidents in the interim is presented. “[A] series of incidents spanning several years can be relevant to establishing a claim of a pattern and practice of torture.” People v. Patterson, 192 Ill. 2d 93, 140 (2000). Accord, Reyes & Solache, 369 Ill. App. 3d at 21-22. 85. In addition, evidence of illegal and unethical conduct by Guevara, particularly conduct committed while acting in his capacity as a police officer, could discredit Guevara by demonstrating his reputation for dishonesty and that he was engaged in a disreputable 39 occupation, namely, that of routinely extorting money from drug and gun dealers and blackmailing those whom he arrested. See Exhibit 41. 86. The above proffer qualifies as new evidence because it could not have been discovered prior to trial by the exercise of due diligence. People v. Reyes & Solache, 369 Ill. App. 3d at 19-20. In addition, newly discovered or not, the proffered evidence amounts to “special circumstances” that justify a new hearing on the motion to suppress. See People v. Cannon, 293 Ill. App. 3d 634, 640-41 (1st Dist. 1997). 87. The proffered evidence is of such a substantial character that it would probably change the result on retrial. Reyes & Solache, 369 Ill. App. 3d at 19. 88. In light of newly discovered evidence or special circumstances concerning Detective Guevara’s common scheme of using intimidation and excessive physical force to coerce false statements from suspects and civilians, and his history of illegal and dishonest conduct, it is now evident that Solache was denied fundamental fairness and due process under the United States and Illinois Constitutions, which entitles him to a new suppression hearing and a new trial. CLAIM II – DUE PROCESS VIOLATION Petitioner Was Denied His Right To A Fair Trial Where The State Failed To Disclose Material Evidence That Was Favorable To The Defense Regarding Past Misconduct By Detective Guevara That Both Impeached Guevara And Corroborated Gabriel Solache’s Testimony That He Confessed Only After Being Beaten By Guevara. 89. The prosecution’s failure to disclose evidence materially favorable to a criminal defendant, upon request by the defendant, violates the constitutional guarantee of due process of law. U.S. Const. amends. V, XIV; Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence tending 40 to demonstrate the lack of credibility of a prosecution witness is material, especially where the prosecution’s case depends entirely on the credibility of that witness. Giglio v. United States, 405 U.S. 150, 154-55 (1972). Furthermore, the prosecution bears the burden of learning of any evidence favorable to the defendant that is “known to others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). 90. Here, the prosecution violated due process by failing to disclose to the defense evidence known to the State and/or the police regarding prior incidents of misconduct by Detective Reynaldo Guevara. This evidence was favorable to the defense in that it impeached his credibility and demonstrated that for at least 15 years, he engaged in a course of conduct of violence and coercion of suspects and witnesses, which corroborated Gabriel Solache’s testimony that he was beaten and coerced by Guevara into falsely confessing to the double murder. A. The State Failed To Disclose Material Evidence That Since 1983, Detective Reynaldo Guevara Systematically Used Intimidation And Excessive Physical Force To Coerce Suspects And Civilians Into Making False And/Or Incriminating Statements. 91. If some or all of the newly discovered evidence set forth in Claim I regarding Detective Guevara is true, then Guevara knew about his participation in these actions and the State had a duty to turn this evidence over to the Petitioner. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (prosecution bears the burden of learning of any evidence favorable to the defendant that is known to others acting on the government’s behalf in the case, including the police). 92. Evidence of Detective Guevara’s common scheme of engaging in violence and intimidation to obtain statements from suspects and witnesses, and his past illegal and unethical behavior, would have served two purposes at trial. First, it would have been relevant to show 41 intent, plan, motive, and a course of conduct of Detective Guevara—all relevant to support Solache’s claim that he was beaten. Second, evidence of other similar acts could have been used to impeach Detective Guevara’s credibility. See People v. Reyes & Solache, 369 Ill. App. 3d 1, 18 (1st Dist. 2006) (“evidence of other acts of brutality could be used to prove a course of conduct on the part of the officers involved and could be used to impeach these officers’ credibility”). 93. Had this evidence been disclosed, the defense could have presented it at the pretrial suppression hearing and to the jury, and there is a reasonable likelihood that the outcome of trial would have been different had the defense done so. “If even a fraction of the allegations included in this evidence had been presented prior to trial, it appears likely that Guevara’s credibility would have been damaged and defendants’ confessions would have been suppressed. Without these confessions, the State’s case against defendants would have been severely weakened. No DNA matching the profile of either defendant was found at the scene of the crimes. In addition, no other physical evidence was uncovered linking defendants to the offenses.” People v. Reyes & Solache, 369 Ill. App. 3d at 19. 94. This evidence was thus material and favorable to the defense, and the State’s failure to disclose it deprived Petitioner of his right to fundamental fairness and due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution and under the analogous provisions of the Illinois Constitution. 42 B. The Prosecution Withheld, After A Specific Request, At Least Sixteen Complaint Register Files Relating To Disciplinary Complaints Made Against Detective Reynaldo Guevara. 95. Newly discovered evidence demonstrates that the prosecution withheld numerous Complaint Register (CR) files concerning Detective Reynaldo Guevara from the defense, despite the fact that Petitioner specifically subpoenaed the files. This information was under the control of either the Chicago Police Department’s Office of Professional Standards (OPS) or the City of Chicago’s Corporation Counsel. 96. The prosecution failed to disclose at least five material CR files, two of which OPS sustained complaints against Detective Guevara. In four of these cases, Guevara was alleged to have beaten criminal suspects, just as Gabriel Solache alleged that Guevara beat him. Because these cases were part of a course of conduct by Guevara that supported Solache’s account of his interrogation, and because they also constituted evidence of Guevara’s dishonesty, the files were material to Gabriel Solache’s case for both impeachment purposes and as substantive evidence of Guevara’s intent, plan, motive, and course of conduct. The five known files were as follows: a. CR 124631: In 1982, Annie Turner filed a complaint with OPS alleging that Detective Guevara arrested and physically assaulted her for smoking on a bus. Her injuries were such that she required medical treatment. See Group Exhibit 1. b. CR 125360: In 1982, Almarie Lloyd filed a complaint with OPS alleging that Detective Guevara and three other officers broke through her locked front door and conducted a warrantless search of her home. See Group Exhibit 2. 43 c. CR 145129: In 1983, Leshurn Hunt filed a complaint with OPS alleging that while he was in police custody, Detective Reynaldo Guevara severely beat him about the head, face, and body, in order to coerce a confession from him. See Group Exhibit 3. d. CR 150473: In 1986, Melvin Warren filed a complaint with OPS alleging that Detective Guevara beat him about the head. OPS sustained this complaint. See Group Exhibit 7. e. CR 152902: In 1986, Rafael Garcia filed a complaint with OPS alleging that while he was in police custody, Detective Guevara beat him and caused him head injuries. OPS sustained this complaint, based in part upon medical corroboration of Mr. Garcia’s injuries. See Exhibit 8. Detective Guevara denied the allegations, but the results of the investigation demonstrate that Guevara’s denials made under oath were false. See Group Exhibit 8. 97. The prosecution failed to disclose at least three additional CR files (CR 220046, CR 251502, and CR 255698) in which complaints against Detective Guevara were pending at the time of trial. Those complaints were withheld from the trial court by the City of Chicago’s Corporation Counsel on the ground that they were inappropriate for court review because they were still pending. R. 466. 98. The prosecution failed to disclose at least eight additional CR files (CR 182519, CR 195857, CR 255701, CR 256148, CR 263553, CR 266681, CR 270916, and CR 283321) pertaining to complaints against Detective Guevara. (Petitioner assumes for purposes of this petition that all newly discovered CR files predate his conviction.) These files were produced to Hon. Dennis J. Porter for his review, pursuant to subpoenas and a subsequent motion filed by attorneys in connection with post-conviction proceedings in People v. Henry Johnson and Juan Johnson, 89 CR 21806. See Orders of Judge Porter, attached as Exhibit F. The files were 44 produced upon a defense motion for, inter alia, enforcement of a request for “[a]ny and all records maintained by the Office of Professional Standards and/or the Internal Affairs Division relating to the disciplinary complaints made against Detective Reynaldo Guevara . . . .” See Defendant’s Motion for Production of Documents, part of the court record in 89 CR 21806. 163 99. Because the prosecution withheld the subpoenaed CR files, Petitioner cannot now demonstrate the materiality of the information contained within them. Nevertheless, based on the materiality of the files previously discussed, and until the CR files are produced for review, it is reasonable to presume that all withheld files contain evidence material to Petitioner’s case. 100. Regardless of whether the withheld information was within the control of the State’s Attorney’s Office, the Chicago Police Department, the Corporation Counsel’s Office, or some other law enforcement agency, the prosecution had a duty to discover and turn over all such files to the defense. 101. Gabriel Solache has consistently maintained his innocence of the crimes for which he was convicted. He has further maintained that the confession he signed was false and was elicited by Guevara only through intense physical and psychological abuse over a 40-hour time span. In a case such as this, which “hinges entirely on credibility” (see Exhibit A at 31), the value of evidence demonstrating Detective Guevara’s unreliability as a witness, or his practice of abusing suspects such as Gabriel Solache, cannot be overstated. 163 In addition to the eight CR files listed here, Judge Porter’s orders reference six more CR files. Four of those files, CR 217624, CR 223938, CR 236739, and CR 248946, were reviewed by Petitioner’s trial judge. The two remaining files, CR 220046 and CR 251502, were withheld from Petitioner’s trial judge because of their “pending” status, as discussed elsewhere in this Petition. 45 CLAIM III – INEFFECTIVE ASSISTANCE OF COUNSEL In Numerous Respects, Petitioner Received Ineffective Assistance Of Counsel At Trial And On Appeal. 102. In the following respects, Petitioner was deprived of his right to effective assistance of counsel—both at trial and on appeal—in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 8, of the Illinois Constitution. Moreover, had Solache instead received effective assistance of counsel, there is a reasonable likelihood that the outcome of trial and/or the appeal would have been different. A. At Both The Pretrial Suppression Hearing And At Trial, Counsel Was Ineffective For Failing To Present Available Expert Testimony That Petitioner’s Hearing Loss Is Consistent With Having Been Hit On The Left Side Of The Head, Which Would Have Corroborated Petitioner’s Testimony That He Was Physically Abused During The Police Interrogation. 103. Gabriel Solache was in police custody for approximately 40 hours before he confessed to this crime. Solache testified that during his time in custody, Detective Guevara struck him repeatedly in the head when he refused to confess. R. 2054, 2066. Solache testified that because he was handcuffed to the wall, Detective Guevara was only able to reach the left side of his head, which Detective Guevara hit a number of times. R. 2066. Solache testified that Detective Guevara hit him hard with an open hand. R. 2067. In addition, Adriana Mejia testified that she saw Guevara hit Solache. R. 852, 909. 104. Evidence also established that Solache had been involved in an accident in July 1997. As a result of this accident, Solache suffered slight difficulty with his left ear, although he was still able to hear out of it. R. 2043. 46 105. Solache testified that soon after the beating by Detective Guevara, he realized that he could not hear out of his left ear. R. 2060. Solache went to a doctor at Cook County Jail about this hearing loss in May of 1998, and was referred to an ear, nose and throat specialist, whom he first visited in July of 1998. R. 2012, 2014, 2028. 106. Dr. Ross Romin of Cermak Health Services in Cook County Jail testified that Solache came to him complaining of hearing loss as a result of being hit by police in his left ear. R. 2013. Cherie Dalbke, an audiologist for Cermak Health Services, testified that she tested Solache’s hearing in July of 1998, at which time she noted severe hearing loss in Solache’s left ear, and again in August of 1998, at which time she noted profound hearing loss in Solache’s left ear. R. 2028-31. 107. The State offered only one witness on this point, Dr. Yogesh Gandhi, who treated Solache after the July 1997 accident but did not have any personal recollection of Solache’s prior hearing problems. Dr. Gandhi testified that it was possible that Solache did not have any hearing loss when he left the hospital after his July 1997 accident. R. 2061, 2064. 108. The court in People v. Banks ruled that “when it is evident that a defendant has been injured while in police custody . . . the State must show by clear and convincing evidence that the injuries were not inflicted as a means of producing the confession.” 192 Ill. App. 3d 986, 991-92 (1st Dist. 1989). 109. Defense counsel knew, or should have known, the importance of establishing that Solache was injured while in police custody; doing so would have laid the basis for suppressing the coerced confession and corroborated Solache’s trial testimony about the police beating. 47 110. Solache’s total hearing loss in his left ear is strong evidence of an injury sustained in police custody. Although defense counsel did present evidence about Solache’s hearing loss, counsel offered no expert testimony establishing a link between the beating and the hearing loss 111. One such expert, who could have been available to defense counsel, is Urjeet A. Patel, M.D. Dr. Patel’s curriculum vitae and affidavit are attached as Exhibit I. 112. If called to testify at Petitioner’s trial, Dr. Patel would have testified that: a. Solache’s hearing loss could have resulted from a beating. b. Blunt trauma to the side of the head can result in sensorineural hearing loss and such hearing loss can be permanent. The blunt trauma does not have to result in a bone fracture to cause hearing loss. c. Previous trauma, such as that which resulted from Solache’s 1997 accident, can predispose an individual to hearing loss in the event of a future trauma, such as that caused when Detective Guevara hit Solache on the left side of his head. This hearing loss can be permanent. 113. According to the appellate court in Banks, once a defendant’s injuries are evident, a mere denial of coercion or violence on the part of police officers is not sufficient evidence for the State to establish clearly and convincingly that the injuries were not inflicted as a means of procuring a confession. Banks, 192 Ill. App. 3d at 991-92. 114. Dr. Patel’s affidavit establishes the link between Solache’s hearing loss and Detective Guevara’s abuse. Had this evidence been presented at the suppression hearing, the trial court would have been obligated to suppress Solache’s confession unless the State could offer clear and convincing affirmative evidence that Solache was not injured in police custody. 48 115. In addition, if the jury had heard Dr. Patel’s testimony about hearing loss, which corroborated Solache’s testimony that he was beaten in police custody, it is reasonably likely the jury would have concluded that Solache’s custodial statement was actually a coerced false confession. B. Trial Counsel Was Ineffective For Failing To Object To The Introduction Of The Written Statement Signed By Gabriel Solache, And To The Testimony Of Assistant State’s Attorney Heather Brualdi Regarding Solache’s Oral Statement, And Appellate Counsel Was Ineffective For Failing To Raise The Issues On Direct Appeal. 116. The prosecution’s only direct evidence against Gabriel Solache was a purported confession by Solache. Solache spoke no English at the time of his arrest. All of the interrogations by Detective Guevara were in Spanish, as were all of Solache’s purported statements about the crime. Two witnesses testified regarding Solache’s oral statements: Detective Guevara, who spoke Spanish, and Assistant State’s Attorney Heather Brualdi, who did not. In addition, the State introduced a written English-language confession that was signed by Solache. The admission of Brualdi’s testimony and the English-language confession were erroneous, and Solache’s trial and appellate counsel were ineffective in failing to object to this impermissible and prejudicial evidence. Assistant State’s Attorney Brualdi’s testimony regarding Solache’s oral confession 117. “It is well settled in Illinois that the testimony of a lay witness must be confined to statements of fact of which the witness has personal knowledge.” People v. Brown, 200 Ill. App. 3d 566, 578 (1st Dist.1990) (citing People v. Rosenbaum, 299 Ill. 93, 95 (Ill. 1921)). “A witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact.” Cleary & Graham’s Handbook of Illinois 49 Evidence §602.1 at 333 (6th ed. 1994) (Citing McCormick, Evidence §10 at 37 (4th ed. 1992)). Furthermore, evidence against a criminal defendant should be excluded by a trial court if its probative value is substantially outweighed by its prejudicial effect. People v. Illgen, 145 Ill. 2d 353, 365 (1991). 118. Assistant State’s Attorney Heather Brualdi testified at trial, “I don’t speak Spanish and [Solache] spoke primarily Spanish . . . .” R. 1863. Brualdi conceded that the statement that she wrote, and that Solache later signed, was dictated to her entirely by Detective Reynaldo Guevara. R. 1869. This is consistent with Solache’s testimony that he never gave a statement to Brualdi, but rather answered “si” to the story that was recited to him by Detective Guevara, in order to avoid further abuse. R. 2057. 119. Despite her inability to understand the conversation between Solache and Detective Guevara, Brualdi’s trial testimony implied that she had personal knowledge of what was said: A: Detective Guevara asked the question [whether Solache understood his Miranda rights] and then he indicated verbally yes, si . . . . A: Basically I went through the statement with the defendant again. I asked him to tell me again what happened and he would start telling the story. And as he was telling me it again, I would write down a sentence or two at a time and then I stopped him and then picked up with the conversation again and wrote it down, the entire statement, in that fashion. Q: And that’s how the entire statement was taken, this procedure of going back and forth between you and the defendant? A: That’s correct . . . [Detective Guevara] interpreted it to the defendant line by line . . . . R. 1868-69. 50 120. Brualdi further testified that Solache “said that he had been treated good.” R. 1872. (Solache, however, claimed never to have made this crucial statement. R. 2058, 2073.) Then, most importantly, Assistant State’s Attorney Brualdi published Solache’s alleged confession to the jury, by repeatedly testifying, “Gabriel Solache states . . . Gabriel Solache states . . . Gabriel Solache states . . . .” R. 1875-81. Thus, Assistant State’s Attorney Heather Brualdi testified to critical information of which she had no personal knowledge. Brualdi’s inability to understand the Spanish language rendered her incompetent to testify to what Solache said. 121. Brualdi’s testimony was also highly prejudicial, in that it bolstered the credibility of Detective Guevara with the legitimacy of the Cook County State’s Attorney’s Office. Solache testified that Detective Guevara had beaten a confession out of him, and this account was echoed by similar testimony from Rosauro Mejia. R. 1974-76. Thus, it may have been Brualdi’s testimony that persuaded the jury to credit Guevara rather than Solache. 122. An examination of the prosecution’s opening statement and final argument demonstrates the extent to which it relied upon the testimony of Assistant State’s Attorney Heather Brualdi: You will hear how Gabriel Solache . . . tells Assistant State’s Attorney Heather Brualdi what he did . . . . You will hear how he tells Assistant State’s Attorney Heather Brualdi, how on that date he gets together with Arturo DeLeon Reyes . . . . You will hear how he tells Assistant State’s Attorney Brualdi the discussions in the car . . . . You will hear how Gabriel Solache tells the State’s Attorney how Adriana Mejia then attacks Jacinta Soto . . . . R. 1343-44 (emphasis added). Throughout this discussion of Solache’s alleged confession, the prosecution failed to make any mention Detective Guevara’s role in the process. The same theme permeated the prosecution’s final argument: “Gabriel Solache . . . gives a handwritten statement 51 to Assistant State’s Attorney Heather Brualdi.” R. 26 (Emphasis added). “[H]e said to Assistant State’s Attorney Heather Brualdi . . . . Gabriel told Heather Brualdi . . . .” R. 31 (emphasis added). “Miss Brualdi told you that the defendant and her began their oral conversation.” R. 65 (emphasis added). “Miss Brualdi told you how she went over the statement with Gabriel Solache as she was writing it out. She would write out a little bit, and this is after the oral conversation where he admits to her.” R. 71 (emphasis added). Because the prosecution relied so heavily upon the inadmissible testimony of Assistant State’s Attorney Heather Brualdi to compensate for otherwise unreliable and unconvincing confession evidence, it was particularly damaging, and unfairly prejudicial, to Gabriel Solache. English-language written statement signed by Solache 123. In addition, the written statement Solache signed was inadmissible on independent grounds and should have been excluded from trial. 124. The signature of a person on a statement does not authenticate the statement as having originated from that person, absent evidence that the person read or understood the statement’s language. See Cleary & Graham’s Handbook of Illinois Evidence §901.1 at 798 (6th ed. 1994). Furthermore, evidence against a criminal defendant should be excluded by a trial court if its probative value is substantially outweighed by its prejudicial effect. People v. Illgen, 145 Ill. 2d 353 (1991). 125. Under typical circumstances, a signed statement is admissible against a criminal defendant because it signifies the defendant’s adoption of its contents. In the present case, however, Gabriel Solache could not speak or understand English at the time he signed the English-language statement. Therefore, even assuming, arguendo, that Detective Guevara 52 impartially interpreted the alleged confession, Solache could not possibly have adopted the statement’s contents. Despite Solache’s signature, the statement was inauthentic; at best it was Detective Guevara’s summary of the conversation between him and Solache. Therefore, the admission of this signed English-language statement error. See People v. Pena, 594 N.Y.S.2d 586 (Schenectady County Ct. 1993) (“defendant gave a statement in Spanish which speaks for itself; he could not and did not comprehend or assent to the translation of that statement . . . and his signature on the written document here at issue implies an acknowledgment and acceptance of that written document which defendant could not have given”) (emphasis added). 126. Further, admission of the written statement was highly prejudicial in that it gave the jury something tangible to add to Guevara’s oral testimony that Solache confessed. R. 2237. Indeed, the prosecution emphasized the written statement in order to bolster its case and deflect attention away from the allegations regarding Detective Reynaldo Guevara’s misconduct. During opening statements the prosecution emphasized to the jury, “You will hear, read and touch his confession” R. 1345 (emphasis added), and during final argument the prosecution stressed the same point: “Look through that statement. Read it carefully.” Supp. R. 77 (emphasis added). Because the prosecution relied so heavily upon the written statement to compensate for other problems in its case, it was particularly damaging and prejudicial to Gabriel Solache. 127. The written statement further prejudiced Solache in that it contradicted his testimony about one of the most crucial issues of this case: whether Solache voluntarily confessed to the crimes. Solache testified that he was threatened and severely beaten by police. R. 718-22, 2054, 2066. He further told the jury that his confession was not made freely and 53 voluntarily, but was only given so that his abuse might end.R. 723. The written statement, however, asserts: Gabriel states that he was treated good by the police and Assistant State’s Attorney Brualdi . . . Gabriel states that no promises have been made to him or threats and he is making the statement freely and voluntarily. Statement of Gabriel Solache at 9, attached as Exhibit D. 128. Trial counsel’s failure to object to Assistant State’s Attorney Brualdi’s testimony and to the introduction of Solache’s written statement denied Solache effective assistance of counsel. To the extent these issues could have been raised on direct appeal—either as standalone arguments, or as part of an ineffective assistance of trial counsel claim, or both—appellate counsel was likewise ineffective for failing to raise the claims on direct appeal. C. Trial Counsel Was Ineffective For Failing To Present Expert Witness Testimony Regarding The Flawed Spanish Translation Of The Miranda Rights Read To Petitioner And Appearing On His Written Statement, And The Impact Of Detective Guevara—Who Spoke A Different Spanish Dialect Than Solache—Having Acted As Interpreter. 129. Subsumed within the question of whether a statement is voluntary has always been a second inquiry required under Illinois law: the determination of whether the Miranda waiver, which preceded the otherwise “voluntary” confession, was knowing and intelligent. See, e.g., People v. Bernasco, 138 Ill. 2d 349 (1990) (noting that even though defendant’s confession was voluntary within the meaning of the Fifth and Fourteenth Amendments to the Constitution, his waiver of Miranda rights was invalid because it was not knowing and intelligent). 130. The Illinois Supreme Court has defined the knowing and intelligent requirement thus: “[I]f intelligent knowledge in the Miranda context means anything, it means the ability to understand the very words used in the warnings.” Bernasco, 138 Ill. 2d at 363. Further, “if one 54 lacks that ability, the repetition of the advice even accompanied by a statement of agreement indicates very little.” In re W.C., 167 Ill. 2d 307, 334 (1995). 131. Trial counsel failed to recognize several troubling aspects about Solache’s alleged confession and written statement. First, Solache spoke only Spanish, while the statement he signed was written in English. Second, Heather Brualdi, the assistant state’s attorney who prepared Solache’s statement, spoke no Spanish, and thus could not confirm Solache’s statement or the waiver of his Miranda rights. Third, Detective Reynaldo Guevara, who had interrogated Solache for 40 hours, also acted as translator between Solache and Brualdi. And fourth, Guevara spoke an entirely different dialect of Spanish than Solache; Guevara spoke a dialect common to Puerto Ricans, whereas Solache spoke a dialect common to Michoacán, the region of Mexico where he was raised. 132. Had Solache’s trial counsel paid appropriate attention to these issues, she would have called an expert to testify about linguistics, translation, and interpretation. One such expert who could have testified on these subjects is Susan Berk-Seligson, Ph.D. Dr. Berk-Seligson’s curriculum vitae and report are attached as Exhibit G. 133. Had she been called to testify at Gabriel Solache’s trial, Dr. Berk-Seligson would have testified that the Spanish-language translation of the Miranda warning does not accurately describe the constitutional rights available to a suspect. In particular, the Spanish-language translation fails to make clear that the suspect has an absolute right to remain silent because the phrase immediately following this right (“anything you have to say may be used against you in the court”) is translated in Spanish to “anything you are obligated to say,” suggesting that the suspect must say something. Next, the warnings do not adequately advise the suspect that what 55 he says may be used against him in court. Instead, the translation is that “anything you say may be used against the court.” When the Spanish language translation is compared to the English rights on Guevara’s pre-printed card, further confusion arises. For example, unlike the English version of the right to have an attorney present “before and during” the interrogation, the Spanish translation only says during this interrogation, ignoring the right to have an attorney before the interrogation. Additionally, when a statement is read in block form, instead of as individual statements, a suspect may have difficulty comprehending his or her rights. 134. Thus, Dr. Berk-Seligson’s testimony would have demonstrated that Solache did not “knowingly and intelligently” waive his Miranda warnings, because the meaning of the words in the Spanish translation likely confused him rather than informed him of his predicament. Both the oral Miranda warnings and the written warnings appearing on the top of the statement he signed were confusing and contradictory. The Spanish translation of these warnings undermined, rather than enhanced, Solache’s ability to understand his constitutional rights and made him incapable of “knowingly and intelligently” waiving them. 135. In addition, trial counsel knew, or should have known, that Solache was from a region in Mexico called Michoacán, whereas Detective Guevara spent part of his life in Puerto Rico. There are stark differences in the way these two men spoke and understood the Spanish language. Trial counsel therefore had a responsibility to call an expert witness to testify about these differences. 136. Dr. Berk-Seligson would have testified that many of the circumstances surrounding Solache’s confession strongly suggest that the testimony of Detective Guevara and Assistant State’s Attorney Brualdi about Solache’s confession was unreliable. These 56 circumstances include: the failure to use an interpreter who spoke and/or understood the dialect of Spanish spoken by Solache; the failure to use an impartial, professional interpreter to ensure accuracy of translation from Spanish to English; the failure to have an assistant state’s attorney who understood Spanish observe the interrogation and confession; the failure to record the interrogation and confession so as to retrospectively verify Guevara’s account of what Solache said; and the failure of the assistant state’s attorney to present Solache with a statement written in his native Spanish language. 137. Armed with this information, the jury would have been better able to assess Guevara’s account of Solache’s oral statement—and indeed, the jury might well have rejected Guevara’s account based on the multiple flaws in the interrogation and interpretation procedure. 138. Because Solache’s confession was the only evidence linking him to the crime, expert testimony that might have resulted in suppression of the confession based on a Miranda violation, or that might have convinced the jury that Detective Guevara was not a reliable interpreter of Solache’s statements, could have changed the result at trial. D. Counsel Was Ineffective For Failing To Present Available Expert Testimony On The Phenomenon Of False Confessions. 139. The central evidence against Solache—indeed the only evidence linking him to the murders—was his confession to police. 140. Defense counsel knew, or should have known, that the jury would likely accept Solache’s confession as true if the only evidence to the contrary was Solache’s testimony denying guilt. Defense counsel was therefore ineffective in failing to call available expert witness 57 testimony about false confessions that would have explained why the circumstances surrounding Solache’s custodial confession rendered it unreliable. 141. The phenomenon of false confessions is not widely understood by the general public, and the “common sense” of the average juror does not include an understanding of many of the factors that may lead to a false confession. In order to bridge that gap, expert witness testimony regarding false confessions may be presented to the jury. 142. Expert testimony concerning the now widely acknowledged phenomenon of false confession is available to defense attorneys to challenge the reliability of a defendant’s confession. At a minimum, such expert testimony can illuminate for a jury those interrogation techniques, as well as those personal attributes of an interrogator and suspect, that increase the likelihood of producing a false confession. 143. Defense counsel neither presented such an expert at petitioner’s trial nor requested a pretrial hearing to establish the materiality of such expert testimony. 144. One such expert, who could have been available to defense counsel, is Thomas Streed, Ph.D. Dr. Steed’s curriculum vitae and affidavit are attached as Exhibit H. 145. If called as a witness at Petitioner’s trial, Dr. Streed would have testified that: a. The circumstances surrounding Solache’s time in police custody likely would have led an innocent man to confess. As a result, Solache’s confession is inherently unreliable. b. In the United States, confessions are often the single most important piece of evidence that can be introduced against a criminal defendant. In fact, studies show that American jurors are more likely to use the weight of a confession as the basis for conviction than any other form of evidence presented. 58 c. The conditions under which a confession is given may render that confession inherently unreliable. Specifically, confessions obtained by violence, brute force, threats of harm or punishment, prolonged isolation, or deprivation of food or sleep are suspect. d. While police officers often use the tactics described above to overcome a suspect’s will, they are all methods and factors that increase the likelihood that an innocent person will confess to a crime he did not commit. A false confession can result when an individual seeks short-term relief from the stresses caused by this coercive environment. e. The potential for police to use improper methods to obtain confessions may increase in high profile cases, such as this one. The pressures accompanying high profile cases can lead police officers to resort to inappropriate methods to obtain confessions in the hope of solving such crimes quickly. f. Previous allegations of physical abuse against Detective Guevara, as well as Rosauro Mejia’s testimony about being hit by Detective Guevara while in custody, support Solache’s claim that he was abused prior to giving this statement. These allegations also support the contention that Solache’s statement was made in a coercive environment, one in which an innocent man is more likely to confess. g. The circumstances surrounding Solache’s time in custody—the prolonged length of confinement (approximately 40 hours) and the fact that Solache was alone for most of that time with limited mobility and limited food and water—cast further doubt upon the credibility of the confession, because a suspect may break down under such conditions and may offer a false confession. 59 h. These conditions were likely to have been particularly oppressive to Solache as he had no prior experience with the police. i. The credibility of Solache’s statement is further undermined by extrinsic factors, such as the lack of physical evidence corroborating his involvement and the fact that neither Adriana Mejia nor Arturo DeLeon Reyes testified against Solache at trial. j. Finally, Detective Guevara’s dual role as interrogator and interpreter casts doubt upon the reliability of Solache’s statement, particularly as there is no means of independently verifying the accuracy of any resulting statement by Solache. 146. After hearing Dr. Streed’s insights into false confessions, the jury would have been better able to assess the risk of a false confession, evaluate the credibility of the only evidence implicating Solache, and weigh it against Solache’s own denial of being involved in this crime. E. Counsel Was Ineffective In Failing To Seek DNA Testing Of Fingernail Clippings Taken From The Victims. 147. During its investigation of this crime, the Illinois State Police crime lab excluded Solache as a contributor of DNA collected from the crime scene. R. 1588-1632. The DNA testing developed a profile for only one perpetrator: Adriana Mejia. R. 1618. 148. During their investigation of this crime, medical examiners clipped the fingernails of both victims and turned the clippings over to the Illinois State Police crime lab. R. 1934-35. The medical examiners preserved the fingernail clippings because the victim of an attack may scratch the attacker and retain small particles of the assailant’s DNA underneath his or her fingernails. R. 1935. In fact, one of the victims in this case, Mariano Soto, had three incised 60 wounds that were consistent with defensive injuries—injuries sustained while defending oneself against attack with a weapon. R. 1914-15. 149. Despite the clear evidentiary value of the fingernail clippings, they were never subjected to DNA testing. 150. The prosecution’s theorized that three specific assailants—Gabriel Solache, Arturo Reyes, and Adriana Mejia—committed this crime. E.g. R. 1343, Supp. R. 21. Only one piece of evidence presented at trial—Solache’s alleged confession—supports this theory of the case. 151. DNA evidence establishing the presence of someone other than the victims or the three codefendants at the crime scene would have substantially furthered Solache’s assertion of actual innocence. 152. Had trial counsel requested DNA testing of the victims’ fingernail clippings and had someone else’s DNA been identified, there is a reasonable probability that Solache would have been acquitted at trial. Without the actual results from such a test, however, Petitioner cannot now prove that he was prejudiced by his trial counsel’s failure to seek the testing. Petitioner therefore requests that the fingernail clippings be submitted for DNA testing. F. Trial And Appellate Counsel Were Ineffective In Failing To Challenge The Trial Court’s Rulings Regarding Detective Guevara’s OPS Files, And Appellate Counsel Was Ineffective In Failing To Raise This Issue On Appeal And In Failing To Seek Leave To Examine The Impounded Files. 153. During pretrial proceedings, the trial court noted that the City of Chicago’s Corporation Counsel’s office declined to supply him with three of Detective Guevara’s OPS 61 files, which had been subpoenaed, because all three “are still pending.” R. 466-67. Defense counsel failed to object to the City of Chicago’s refusal to comply with the subpoena. 154. There was no justification to withhold potentially exculpatory information for the reason stated by the city attorney and accepted by the trial court. The inquiry for the court was whether the allegations and findings in the complaints impeached Detective Guevara’s credibility or suggested intent, plan, motive, or pattern of abuse by Guevara. The status of the administrative review of these allegations was irrelevant to the court’s determination of the materiality of this information to Solache’s defense. Counsel for Petitioner had a duty to object to the City of Chicago’s position which was without merit, but failed to do so. 155. Defense counsel further failed to describe with specificity what the court should be looking for in those records the court did review, and thereby failed to furnish the guidance necessary for the court to adequately understand the aspect of Petitioner’s defense that would be aided by the records in question. 156. Moreover, defense counsel failed to insist that the court allow counsel to view the disciplinary files so as to be able to make informed arguments as to materiality, which counsel were well within their rights to do. Counsel could not provide meaningful input on materiality without actually examining the disciplinary files. 157. The failure to raise these objections constituted deficient performance by trial counsel and, depending on the contents of the withheld material, the prejudice could be of such a character as to have affected the outcome of Petitioner’s trial. 62 158. In addition, appellate counsel was ineffective in failing to raise this claim of ineffective assistance of trial counsel on direct appeal, and in failing to seek leave of court to examine those disciplinary files that were impounded. 63 CONCLUSION WHEREFORE, Petitioner Gabriel Solache requests that this Court: 1. Vacate his convictions and sentence for first degree murder, aggravated kidnaping and home invasion; 2. Conduct an evidentiary hearing; 3. Grant Petitioner sufficient time and leave to amend this petition to add additional claims and supporting affidavits and factual material as his investigation continues; 4. Grant Petitioner the authority to obtain subpoenas for witnesses, documents and other discovery necessary to prove the facts alleged in the petition; 5. Grant Petitioner the opportunity to submit the victims’ fingernail clippings for DNA testing; and 6. Grant such other relief as may be appropriate. Respectfully Submitted, GABRIEL SOLACHE By:______________________________ One of his attorneys Jane E. Raley Karen L. Daniel Counsel of Record Sarah Terman, law school graduate Tia Trout-Perez, law school graduate Center on Wrongful Convictions Bluhm Legal Clinic Northwestern University School of Law 357 E. Chicago Ave. Chicago, IL 60611 (312) 503-8576 (312) 503-8977 (fax) June 20, 2008 64