IN THE CIRCUIT COURT or COOK COUNTY, COUNTY DEPARTMENT, CRIMINAL DIVISION . .. PEOPLE OF THE STATE OF ILLINOIS, ARIEL GOMEZ1896l06 I I Hon. Carol M. Howard, presiding I Petitioner-Defendant PETITIONER ARIEL AMENDED SUCCESSIVE POST-CONVICTION PETITION Petitioner, ARIEL GOMEZ, by his attorneys, THE EXONERATION PROJECT at the University of Chicago Law School, respectfully requests relief pursuant to the Illinois Post- Conviction Hearing Act, 725 ILCS 5fl22-1 seat, and in support ofthis request submits the following Amended Successive Petition for Post-Conviction Relief. Attorneys for Ariel Gomez, Russell Ainsworth Tara Thompson David B. Owens Elliot SIosar Tess Kleinhaus THE EXONERATION PROJECT The University of Chicago Law School 6020 S. University Ave. Chicago, IL 6063'? Attorney No.: 44407 (312) 243-5900 TABLE OF CONTENTS INTRODUCTION PROCEDURAL HISTORY 5 EVIDENCE IN THE RECORD 8 A. Teenage Boys Celebrate the Bulls? Championship By ?Cruising? 8 B. The Teens Get to Cicero and Diversey, Are Attacked, and Gomez Shoots a Single Shot Into the Sky 3 C. Concepcion Diaz is Shot Twice In the Melee at Diversey and Cicero 9 D. The Boys Destroy The Path?nder E. Police Investigate the Crime Scene and Speak to a Number of Witnesses, but Make no Contemporaneous Record of Witness Statements IO F. A Single Gun Clip Is Recovered At Some Point and At an Unknown Location G. Ariel Gomez, With the Others, Is Arrested and Taken to Area Five 1 H. Ariel Gomez is Coerced Into Signing a Statement Regarding the Events ofJuue 13 K. 12 Indictment 8: Pre-Trial Proceedings 12 Gomez Is Convicted At A Trial In Violation of His Constitutional Rights and Despite Insuf?cient Evidence As A Matter of Law 13 Gomez?s Conviction is Af?rmed, While Dominguez?s is Overturned 14 NEW EVIDENCE DEMONSTRATES ARIEL ACTUAL INNOCENCE AND SUPPORTS HIS CONSTITUTIONAL CLAIMS 15 I. Newly Evidence Regarding Who Actually Shot and Killed Concepcion Diaz 15 A. Ruth Anro?ettjl 15 B. Expert Report of John Nixon 17 C. Dragon 18 II. Evidence Regarding Detective Reynaldo Guevara?s Misconduct 18 A. Witness Intimidation, Pressure, andAttempted Coercion In This Case I9 B. Evidence Regarding Detective Guevara ?s Suppression and Tire Destruction oftite Gun Clip 20 C. Detective Guevara ?s Coercive Interrogation of Gomez 22 D. Detective Guevara Has Recentiy Invoked His {?it Amendment Right to Siience When Asked Questions, Under Oath, Regarding His Investigation oftite Diaz Homicide and His Sworn Testimony in This Case 22 E. New Evidence Regarding Detective Guevara ?s Pattern and Practice of Intimidating, Manipuiatiug, and Coercion of Witnesses and Suspects 24 i . Manipulation onyewitnesses 24 2. Guevara 's Use ofForce 32 CLAIM I: ACTUAL INNOCENCE ARIEL CONVICTION AND CONTINUED DETENTION VIOLATE HIS RIGHT TO DUE PROCESS OF LAW BECAUSE NEWLY DISCOVERED EVIDENCE PROVES HIS INNOCENCE 37 CLAIM II: DUE PROCESS 5TH AND 14TH AMENDMENTS U.S. CONSTITUTION ARTICLE 1, SECITION 2 ILLINOIS CONSTITUTION THE STATE FAILED TO PRODUCE BMDY MATERIAL THAT WOULD HAVE ALLOWED MR. GOMEZ TO BOTH DEMONSTRATE HIS INNOCENCE AND TO IMPEACH THE CREDIBILITY DETECTIVE GUEVARA 41 CLAIM 111 5TH AMENDMENT, 14TH AMENDMENT CONSTITUTION ARTICLE 1 SECTION 10, SECTION 2? ILLINOIS CONSTITUTION NEWLY DISCOVERED EVIDENCE OF TORTURE, COUPLED WITH OTHER EVIDENCE NOW IN THE RECORD, DEMON STRATES THAT STATEMENT WAS OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS 43 CLAIM IV: CUMULATIVE ERROR CONCERNS OF FUNDAMENTAL FAIRNESS AND CUMULATIVE ERROR DEMAND THAT GOMEZ BE GRANTED A NEW TRIAL 45 Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 1 1 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibital'? Exhibit 18 Exhibit 19 Exhibit 20 ARIEL GOMEZ PC EXHIBITS General Offense Case Report Affidavit of Ariel Gomez (2012) Af?davit of Ariel Gomez (2014) People v. Dominguez, 98-4519 (Order on Appeal) United States ex rel Gomez v. Pierson, 232 F.8upp.2d 888, 890 (N.D. Ill. 2002) Affidavit of Ruth Antonettey John Nixon, Athena Research Consulting, LLC, Report Af?davit of Maria Castro Af?davit of Debbie Daniele Ben Meyerson, Record Verdict, CHI. (June 23, 2009) People v- Almodovar. 2013 IL App (let) 101476 Deposition Testimony in Rivera v. Guevara, 12 CV 04428 MD. Ill.) (pending) Tr. of Proceedings, People v. Solache and Reves, 98 CR 01244 Tr. of Proceedings, People v. Montanez and Serrano, 93 CR 13173 People v.Gomez, 1-98-4474 (let order pursuant to Supreme Court Rule 23) Gomez v. Jaimet, 350 F.3d 673, 678 ('Fth Cir. 2003) Ariel Gomez Pro Se Post-Conviction Petition Diagram of Intersection Concepcion Diaz Medical Reports Supp. Report (June 14, 1997) Exhibit 21 Exhibit 22 Exhibit 23 Exhibit 24 Exhibit 25 Exhibit 26 Exhibit 27 Exhibit 28 Exhibit 29 Exhibit 30 Exhibit 3 1 Exhibit 32 Exhibit 33 Exhibit 34 Exhibit 35 Exhibit 38 Exhibit 37 Exhibit 38 Exhibit 39 Exhibit 40 Ammo Clip Report ISP 8: CPD Forensic Reports Celia Gomez, Consent to search Court-Reporter Statement of Jose Dominguez Omitted Motion to Suppress Ariel Gomez Statement Af?davit of Celia Gomez Rivera v. Guevara. 12 CV 04428 (N.D. Ill.) Complaint Testimony of William Dorsch in People v. Solache, 98 CR 12440-03 FBI Report, Dated June 23, 2011 Testimony of Samuel Perez, People v. Juan Johnson, No. 89 CR 21806 Testimony of Salvador Ortiz in Johnson v. Guevara, No. 05-01042 Affidavit of Virgilio Muniz Af?davit of Virgilio Calderon Muniz; Testimony of Vergilio Calderon Muniz, People v. Vera, No. 89-11039 Testimony of Wilfredo Rosario, People v. Arcos, No. 91 CR 7432 Appellate Court Opinion, People v. Arcos, 282 Ill. App. 3d 870 (1st Dist. 1996) Testimony of David Velazquez in People v. Velazquez, 91 CR 13938 Affidavit of Carl Richmond Af?davit of Francisco Vicente Sworn testimony of Timothy Rankine in People v. Serrano, 93 CR 18173 Exhibit 41 Exhibit 42 Exhibit 43 Exhibit 44 Exhibit 45 Exhibit 46 Exhibit 47 Exhibit 48 Exhibit 49 Exhibit 50 Exhibit 5 1 Exhibit 52 Exhibit 58 Exhibit 54 Exhibit 55 Exhibit 56 Af?davit of Armando Serrano; Af?davit of Enrique Nieto; Af?davit of Feliz Serrano Police Reports in People v. Davila, 95 CR 24591; Testimony of Edwin Davila in Johnson v. Guevara, 05-0-1042. Af?davits of Efrain and Julio Sanchez; Police reports from People v. Colon, 93 OR 23750 Deposition of Evelyn Diaz, Johnson v. Guevara, No. 05-0-1042 Testimony of Luis Figueroa, People v. Diaz, 95 CR 610901; Supplementary Police Report (Lineup) Deposition of Gloria Ortiz Bordoy, Johnson v. Guevara, No. 05-0-1042 Affidavit of Rodolfo Zaragoza Testimony of Jose Melendez, People v. Sierra, No. 95 CR 18601 Deposition of Maria Rivera, Johnson v. Guevara, No. 05-0-1042; Suppression Hearing Testimony of Maria Rivera, People v. Gabriel Solache 8: Arturo De Leon Reyes, No. 98 CR 12440-03 Testimony of Robert Ruiz, People v. Conception Santiago Freddy Santiago, No. 97-20973 Post-Conviction petition in People v. Gomez, 97 CR 18961 Post-Conviction petition in People v. Rivera, 88 CR 15436; Rivera?s Petition for Certi?cate of Innocence Detective Guevara?s testimony in People v. Arturo Reyes 8: Gabriel Solache, No. 98 CR 12440 Appellate Decision in People v. Gonzalez, 98 CR 23340 OPS Complaint No. 124631, Annie Turner; Medical Records of Annie Turner; Testimony of Annie Turner, Hunt v. Jaglovvski, No. 85 1976 OPS Complaint No. 125360, Almarie Lloyd; Testimony of Almaire Lloyd, Hunt v. aglowski, No. 85 1976; Testimony of Job Lloyd, Hunt v. Jaglowski, No. 85 1976 Exhibit 57 Exhibit 58 Exhibit 59 Exhibit 60 Exhibit 6 1 Exhibit 62 Exhibit 63 Exhibit 64 Exhibit 65 Exhibit 66 Exhibit 67 Exhibit 68 Exhibit 69 Exhibit 70 Exhibit 7 1 Af?davit of Leshum Hunt with Attached Letter to OPS Testimony of Leshurn Hunt, Hunt v. Jaglowski, No. 85 1976; Testimony of Richard Arnold Crawford, Hunt v. aglovvski, No. 85 1976; Testimony of Lillian Garcia, Hunt v. aglowski, No. 85 1976; Testimony of John McNamara, Hunt v. aglowski, No. 85 1976; Medical Records of Leshurn Hunt; Appellate Court Opinion, Hunt v. aglowski, 926 F.2d 689 (7th Cir. 1991); District Court Opinion, Hunt v. aglovvski, 655 F. Supp 681 (ND. Ill. 1987) Testimony of Graciela Flores, Hunt v- aglowski, No. 85 1976; Testimony of Anna Flores, Hunt v. Jaglowski, No. 85 1976 Affidavit of Reynaldo Munoz OPS Complaint No. 152902, Rafael Garcia Testimony of Daniel Pena, People v. Pena, No. 86 CR 1458; Testimony of Armador Rivera, People v. Pena, No. 86 CR 1458; Testimony of Jamie Velez, People v. Pena, No. 86 CR 1458 OPS Complaint No. 150473, Melvin Warren; Testimony of Melvin Warren, Hunt v. aglowski, No. 85 1976 Af?davit of Victor Vera Af?davit of David Rivera Affidavit of Daniel Rodriguez Appellate Court Opinion, People v. Montanez, 273 Ill. App. 3d 844 (let Dist. 1995) Suppression Hearing Testimony of Eleizar Cruzado, People v. Cruzado, No. 93 CR 24896 Affidavit of Adolfo Fries-Munoz Af?davit of Adrian Duta Appellate Court Opinion, People v. Flores, 315 Ill. App. 3d 387 (1st Dist. 2000) Affidavit of Jed Stone Exhibit 72 Exhibit 73 Exhibit 74 Exhibit 75 Suppression Hearing Testimony of Rosauro Mejia, People v. Gabriel Solache 8.2: Arturo De Leon Reyes, No. 98 CR 12440-03 Suppression Hearing Testimony of Adriana Mejia, People v. Gabriel Solaohe 8.: Arturo De Leon Reyes, No. 98 CR 12440-03 Suppression Hearing Testimony of Arturo Reyes, People v. Gabriel Solaehe 8t Arturo De Leon Reyes, No. 98 CR 12440-03 Suppression Hearing Testimony of Gabriel Solaehe, People v. Gabriel Solache 8: Arturo De Leon Reyes, No. 98 CR 1244003 PETITIONER ARIEL AMENDED SUCCESSIVE POST-CONVICTION PETITION Now Comes Petitioner, ARIEL GOMEZ, by and through his attorneys, THE EXONERATION PROJECT at the University of Chicago Law School, and respectfully submits the following amended successive petition to this Court for post-conviction relief pursuant to the Post Conviction Hearing Act, 725 ILCS 51'122-1 et seq. In support of his thereof Mr. Gomez, alleges and states as follows: INTRODUCTION 1. On Friday June 13, 199?, the Chicago Bulls defeated the Utah Jazz to win their ?fth N.B.A. championship. That same evening, as celebrations took place throughout the City, a tragedy occurred: Concepcion Diaz was shot at the busy corner of Diversey and Cicero Avenues on Chicago?s northwest side. Exhibit 1 (General Offense Case Report). 2. This tragedy was followed by another: Ariel Gomez was wrongfully convicted of killing Mr. Diaz and has spent over 17 years incarcerated for a crime that he did not commit. Mr. Gomez has always maintained that he did not kill Mr. Diaz. ?g Exhibit 2 (Af?davit ofAriel Gomez, 2012); Exhibit 3 (Af?davit ofArlel Gomez, 2014).' 3. The night of the shooting, Mr. Gomez, who was 17 years old at the time, was hanging out with four otherjuveniles ?cruising? in his mom?s car, a 1995 Nissan Path?nder. After this car was struck with bricks, Mr. Gomez admits that his behavior that night was juvenile; he rode through the intersection hanging out of the Path?nder with a gun in his hand. Mr. Gomez further admits, as he always has, that he ?red shot into the air. When Mr. Exhibit #3 (Af?davit of Ariel Gomez} and Exhibit #28 (Af?davit of Celia Gomez) are not attached to this Petition. Pursuant to 725 ILCS 5/122-2, Mr. Gomez states that these af?davits are not attached at this time due to technical, scheduling, or other dif?culties in obtaining them in notarized form by the ?ling date. Petitioner will supplement these Exhibits within four weeks of this ?ling. Gomez?s gun was recovered, forensic testing was done, which reveals that the bullets found at the crime scene could not have come from Gomez?s gun. 4. Indeed, the State?s case against Gomez has always been tenuous. All five juveniles in the Pathfinder were charged with killing Mr. Diaz, but only Mr. Gomez remains in prison. Three of the boys were never convicted. The other, Jose Dominguez, was convicted on a theory ofaccountability. As with Mr. Gomez, for Mr. Dominguez the State tried to explain away the disparate forensics by suggesting that there was a second. unknown gun that was never recovered from the crime scene, and to which no witness ever identified having seen. The First District saw the impropriety of this unsubstantiated and unsupported notion, and overturned Dominguez?s conviction on the basis that there was not enough evidence to convict of ?rst-degree murder, specifically finding that there was insuf?cient evidence that there was a ?second gun? at the crime scene and that there was insufficient evidence to demonstrate that Mr. Gomez fired the weapon that killed Mr. Diaz. S_eg Exhibit 4, People v. Dominguez. 93-4519 (Order on Appeal). 5. That Mr. Gomez remains convicted constitutes a miscarriage of justice. Indeed, as Judge Bucklo explained: ?It is unjust that Mr. Gomez should sit in prison, convicted of murder, while his co-defendant should be cleared ofit on the grounds that one cannot have accomplice liability if the principal?Mr. Gomez?is innocent.? United States ex rel Gomez v. Pierson. 232 F.Supp.2d 888, 890 (ND. Ill. 2002), attached hereto as Exhibit 5. 6. Now, newly discovered evidence demonstrates that Gomez?s conviction should be vacated. This evidence demonstrates that Mr. Gomez is actually innocent of murdering Mr. Diaz and that Mr. Gomez?s wrongful conviction was obtained in violation of his constitutional rights. 7. Speci?cally, an eyewitness, Ruth Antonnetty, has for the ?rst time come forward and averted that (1) she actually saw another gun in the parking lot that night; that (2) she observed this other gun at the scene before the boys arrived in the Path?nder; that (3) she saw Mr. Gomez shoot gm shot into the air; that (4) she actually saw someone else shoot a different weapon Mr. Gomez ?red a single shot into the sky; and (5) that this other individual was the person who shot and killed Concepcion Diaz. Exhibit 6 (Af?davit of Ruth Antonetty). 8. New evidence of Mr. Gomez?s innocence includes new expert analysis, with bullet trajectory simulations, of the ballistics ?rearms evidence, given the circumstances of the shooting. Based upon this new analysis, it is evident that Mr. Gomez could not have killed Mr. Diaz. Exhibit 7, John Nixon, Athena Research Consulting, LLC, Report- 9. Likewise, Mr. Gomez has discovered a number of Due Process, Brady violations in his case. For one, Mr. Gomez has learned that the lead detective into the Diaz shooting, Reynaldo Guevera, suppressed exculpatory information and masked his attempts to pressure, intimidate, and coerce witnesses into identifying Gomez as the killer. Detective Guevara even fabricated testimony to hide these actions. Had this suppressed evidence been known at trial, the outcome would have been different. Examples ofthis evidence include: I the fact that Ruth Antonetty provided exculpatory information to Detective Guevara, who suppressed her statement and told her she wasn?t needed if she would not testify to what he wanted her to say; 0 the fact that Maria Castro, Debbie Daniels, and Ms. Antonnetty were pressured and intimidated into identifying Gomez as the shooter of Mr. Diaz; and the fact that Detective Guevara showed witnesses Mr. Gomez sitting in a room as he attempted to persuaded them to say Gomez was the shooter; Ex. 6 (Affidavit of Ruth Antonetly); Exhibit 8 (Af?davit of Maria Castro); Exhibit 9 (Af?davit of Debbie Daniels). 10. Moreover, the fact that these tactics and misconduct were employed?and suppressed?with respect to these three witnesses calls into doubt the testimony of any of the witnesses who testified at trial, who spoke to police officers, or whose testimony was stipulated to at trial based upon the representations Detective Guevara made in police reports that deliberately withheld exculpatory evidence and impeachment information. 11. Even though Detective Guevara?s misconduct with respect to these three witnesses is suf?cient to warrant a new trial on due process grounds, Mr. Gomez has now obtained overwhelming evidence indicating a similar pattern and practice of attempting to intimidate, pressure, and even coerce witness testimony while simultaneously suppressing exculpatory information provided by witnesses. Indeed, Mr. Gomez has now learned that nearly 100 individuals have accused Detective Guevara of misconduct similar to that described in his case. In fact, in 2009, Detective Guevara was found civilly liable in Johnson v. Guevara, 1042, for framing an innocent man by coercing witnesses into providing false identifications. Exhibit 10, Ben Meyerson, Record Verdict, CH1. TRIB. (June 23, 2009). The First District Court of Appeals has explained that relevant evidence of Detective Guevara?s misconduct is sufficient to meet the ?cause and prejudice? standard for successive petitions, and that it would likely meets the actual innocence standard as well. People v. Almodovar, 2013 IL App (1 st) 101476, at 1111 62-?9, attached hereto as Exhibit 1 l. 12. But, there is more. Detective Guevara testified both at pre?trial proceedings and trial against Mr. Gomez. Powerful new evidence undermines this testimony in its entirety, as Detective Guevara recently invoked his Fifth Amendment right against self-incrimination when asked, under oath, about whether, in this case, he destroyed physical evidence, pressured witnesses, or otherwise suppressed exculpatory information. See Exhibit 12, Deposition testimony in Rivera v. Guevara 12 CV 04423 (ND. 111.) (pending). Indeed, in two other criminal proceedings Detective Guevara exercised his Fifth Amendment privilege on the grounds that a truthful response to questions about whether he caused witnesses to falsely identify suspects could subject him to criminal charges. Tr. of Proceedings, People v. Solache and Reyes, 98 CR 01244, Exhibit 13; Tr. of Proceedings, People v. Montanez and Serrano, 93 CR 18173, Exhibit 14. 13. The newly discovered evidence in this case demonstrates Ariel Gomez?s innocence; undermines confidence in the verdict; and requires that Ariel Gomez?s conviction be set aside or, at the very least, a new trial ordered. PROCEDURAL HISTORY 14. On August 11, 1998 Ariel Gomez was convicted of first degree murder and sentenced to 35 years in Illinois Department of Corrections. 15. On September 7, 2000, the First District Appellate Court af?rmed the conviction and held that: l) the evidence was sufficient to support the conviction; 2) the trial court did not improperly shift the burden of proofto the Defendant at the motion to suppress hearing; 3) Mr. Gomez knowingly and voluntarily waived his right to testify at trial; and 4) Mr. Gomezis right to effective assistance of counsel was not violated. People v.Gomez, 1-98-4474 (lst order pursuant to Supreme Court Rule 23), Exhibit 15. On January 29, 2001, the Supreme Court of Illinois denied Mr. Gomez?s petition for leave to appeal the First District?s decision. 16. On May 17, 2001, Jose Dominguez?s ?rst-degree murder conviction was overturned based upon the fact that there was insuf?cient evidence to find that Gomez had killed Mr. Diaz. Ex. 3. 17. Mr. Gomez ?led a petition for habeas corpus in the United States District Court for the Northern District of Illinois. Judge Buckle recognized that the Illinois Appellate Court ?af?rmed Mr. Gomez?s conviction,? but also ?held that there was insuf?cient evidence of Mr. Gomez?s guilt on the murder charge to hold Mr. Dominguez accountable, even noting that that the ?samejudge presided over the and Dominguez panels" and that the ?evidence against Mr. Dominguez was virtually identical to the evidence against Mr. Gomez.? Pierson, 232 F. Supp.3d at 890, Ex. 4. Judge Bucklo denied the petition but explained that ?It is unjust that Mr. Gomez should sit in prison, convicted of murder, while his co?defendant should be cleared of it on the grounds that one cannot have accomplice liability if the principal?Mr. Gomez?is innocent.? E. 18. The Seventh Circuit af?rmed on grounds of?procedural default? with respect to Mr. Gomez?s ineffective assistance claim, but commented: ?Without doubt, a disturbing aspect ofthis case is that Dominguez?s conviction was overturned by a panel ofthe Illinois Appellate Court on the basis that there was insuf?cient evidence to prove that Gomez actually ?red the shots killing the victim. Gomez v. Jaimet 350 F.3d 673, 673 (7th Cir. 2003), attached hereto as Exhibit 16. 19- On May 17, 2004, Mr. Gomez ?Ied a petition for post-conviction relief. The trial court denied his petition on August 13, 2004. On August 24, 2005, the First District Illinois Appellate Court at ?rmed the denial of post conviction relief. On December I, 2005, the Supreme Court of Illinois denied Mr. Gomez?s petition for leave to appeal the First District?s appellate decision. I 20. On January 3, 2013, Ariel Gomez filed apro se successive petition for post-? conviction relief. Exhibit 17 (Filed without exhibits). 1n the pro 33 Petition, Mr. Gomez raised three claims: (I) that newly discovered evidence establishes that the Chicago Police of?cers recovered and then illegally destroyed the .45 caliber ammunition clip, in violation of his Due Process rights; (2) that Detective Guevara?s suppression of Ruth Antonnety?s exculpatory statement, which was material to the defense, violated his constitutional rights; and that Detective Gucvara?s newly-discovered pattern and practice of misconduct in homicide investigations illustrates Mr. Gomez?s entitlement to a new trial. Subsequently, this Court granted Mr. Gomez leave to amend his successive petition and docketed the petition. Mr. Gomez retained private counsel, The Exoneration Project at the University of Chicago Law School, who sought leave to amend Mr. Gomez?s pro se petition following an investigation into that matter. To that end, counsel for Mr. Gomez sought, and was granted, discovery relating to the Case from both the Chicago Police Department and the Illinois State Police. Mr. Gomez has received documents reSponsive to this request but is still without certain discovery known to be in the possession of the Chicago Police Department.2 2 Mr. Gomez sought crime scene photographs, which have been listed in evidence reports. These photos, have never been produced to Mr. Gomez. EVIDENCE IN THE RECORD A. Teenage Boys Celebrate the Bulls? Championship By ?Cruising? 22. On June 13, 1997, seventeen-year-old Ariel Gomez wanted to celebrate the Chicago Bulls? ?fth National Basketball Association Championship. He and four friends?Jose Dominguez, Paul Yalda, John Yacoub, and Dragon Jovanovich?decided to celebrate by driving Gomez?s mother?s 1995 Red Nissan Path?nder throughout the City of Chicago. 23. Before setting out into the city, Mr. Gomez placed a chrome plated .45 caliber Ruger handgun underneath the hood of the Path?nder. 24. After driving for a period of time, the boys stopped and removed the gun from underneath the hood of the car. Jose Dominguez ?red one shot into the air to celebrate the Bulls? victory. The boys got back into the car and discussed the fact that there was then only one bullet Ie?t in the gun. B. The Teens Get to Cicero and Diversey, Are Attacked, and Gomez Shoots a Single Shot Into the Sky 25. Eventually, the teens drove southbound on Cicero Avenue towards the intersection of Cicero and Diversey. At that time, parking lots were located at three of the four corners of that intersection. On the northwest corner was a strip mall with several stores, including a Little Creaser?s Pizza, Payless, and a Cermak Fresh Market Produce. Exhibit 18 (Intersection Diagram). Nearest the intersection on the northwest side was a CTA bus stop. E. On the northeast side of the street was a Trak Autos, auto parts store. id. On the southeast corner of the intersection was a used car dealership, Value Auto. A Shell gas station was on the southwest corner of the intersection. 26. Crowds of individuals gathered in the parking lots to celebrate the Bulls? championship. 27. The Path?nder approached the intersection of Cicero and Diversey and stopped at the light. At the time, Jose Dominguez and Dragon Jovanovic were on top of the vehicle. Several people at the intersection, now believed to be gang members, threw bricks at the Path?nder, breaking the windows and hitting Paul Yalda in the head. Paul was seated in the back. 28. Ariel Gomez and the four other youths continued southbound through the intersection, turned onto Parker and into an alley, and stopped the car. Dominguez and .lovanovic got off the roof of the car, while Ariel Gomez retrieved the gun from underneath the hood - Wait. Wasn?t the gun already out when Dominguez shot celebratory bullet 29. Jose Dominguez drove the vehicle back to the intersection of Diversey and Cicero and turned into the wrong lane; Dominguez turned going northbound though he was in the southbound lane. Dominguez then quickly turned left into the northwest corner parking lot, and made a break for the nearest exit. Dominguez hit an individual as he drove through the crowded parking lot. 30. Meanwhile, Ariel Gomez had been hanging out of the front passenger window, holding the gun above his head. At some point, Gomez ?red a single shot into the sky as the Path?nder was making its way into the parking lot. C. Concepcion Diaz is Shot Twice In the Melee Diversey and Cicero 31. At 1 [:28 immediately after Gomez ?red into the air, several more shots were fired. At least two of'these shots struck and killed a man waiting for the bus, Concepcion Diaz. 32. Diaz was shot twice, once through the chest and once in the hand. See generally Exhibit l9 (Medical Reports). Mr. Diaz?s skin was penetrated in three places from these two shots: one entry wound in the back, an exit wound through the chest, and in the hand where a bullet had been lodged. Police of?cers recovered evidence from the crime scene, which included a .45 Caliber bullet shell and pictures of? the scene as it appeared at the time. D. The Boys Destroy The Path?nder. 33. Ariel Gomez and the four other boys were terrified as they drove away from Diversey and Cicero, due to the fact that Dominguez had struck someone with the Path?nder as they le?. The boys rashly decided to destroy the vehicle and eventually crashed the car into a brick wall. E. Police Investigate the Crime Scene and Speak to a Number of Witnesses, but Make no Contempt-raucous Record of Witness Statements 34. Police of?cers arrived on the scene less than 10 minutes after the shooting. Ex. I. Detective Guevara arrives moments later, at 11:45 pm. E. 35. Though scores of people were on the scene when the events took place, only a handful of witnesses were listed in police records. These individuals include: David Rodriguez, Ruth Antonetty, Rey Arroyo, Orlando Skerrett, Marisol Ramos, Sandra Rodriguez, Carlos Rodriguez, Debbie Daniels, Maria Casro, Micael Lopez, and Georgia Soria. E. 36. According to police records, these witnesses all reported hearing numerous gun shots at the busy scene. S_ee_ Exhibit 20, Supp. Report (June 14, 1997). 37. During their investigation, CPD Detectives produced no written General Progress Reports to the State?s Attorney?s of?ce nor to the defense. 38. At some point, police obtained the license plate number of the Path?nder from Georgia Soria, linking the car to the Gomez residence. l_d. F. A Single Gun Clip Is Recovered At Some Point and At an Unknown Location 39. At some point, CPD officers also took photos ofthe crime scene, and obtained a ?45 mm Clip Magazine? at Inventory Police records do not indicate which CPD of?cers found the magazine clip or where it was found. See Exhihir 21, at I (Ammo cup Report). The only police names on the report regarding the ammunition clip are Guevara? and Ruiz.? E. G. Ariel Gomez, With the Others, Is Arrested and Taken to Area Five 40. Throughout the evening Gomez and the others in the Path?nder were located by CPD officials and arrested. Detective Guevara interrogated Gomez. _S_ee, Ex. 17. 41. In the course of being questioned, Ariel truthfully told detectives that the gun he had at the intersection was at his mother?s house. As such, Detective Guevara requested that of?cers from the technical forensics division go to Gomez?s mothers house to search for the weapon. Global Exhibit 22, at 7 (ISP and CPD Forensics Reports). 42. The CPD did not need to get a warrant to search the house for the gun; instead they were allowed to search the home consensually. Exhibit 23 (Celia Gomez, Consent to Search). The Consent to Search form is signed by two CPD of?cers?Detectives Vergara and Maher?neither of whom is Detective Guevara. 43. Two CPD forensic investigators, Officer Moran #7073 and Of?cer Shader #9609, went to Gomez?s mother?s house and recovered the .45 Cal Ruger stainless steel pistol from on top of a living room cabinet of the house. The examiners took photographs, and prepared both typed and handwritten reports. In those reports, Of?cers Moran and Shader documented that the .45 Roger recovered did not have a magazine (that is, a ?gun clip?), and that no ammunition was found with the gun. Ex. 21; 22. ll H. Ariel Gomez ls Coerced Into Signing a Statement Regarding the Events of June 13 44. Detective Guevara pressured Gomez to confess that he had, in fact, killed Concepcion Diaz. When Gomez refused, Detective Guevara punched him in the face in an effort to coerce him into confessing. 45. In the end, though he did not ?confess? to the killing, Gomez signed a statement regarding the events of June 13, 1997, as did the other boys. I. Indictment Pro?Trial Proceedings 46. Ariel Gomez was charged with ?rst-degree murder, as were the four other boys who had been in the Path?nder that night. They were all assigned to Judge Derbach, and their actions proceeded concurrently. None of them pled to any crime. 47. All of the boys also elected to take a bench trial rather than proceed to a jury. Before trial, Mr. Gomez filed a motion to suppress his statement, which was denied. Detective Guevara testi?ed against Gomez at the suppression hearing and his testimony was unimpeached. 4S. Ballistics testing was also done pre-trial. That testing?which involved examining the Ruger handgun found in the Gomez residence and the .45 caliber bullet found lodged in the victim?s hath-revealed that Mr. Gomez?s .45 Roger did not and could not have fired the bullet that was lodged in Mr. Diaz?s hand. See generally Ex. 22. 49. Pre?trial counsel for Mr. Gomez specificallyr sought discovery regarding all information relative to the gun recovered at Mr. Gomez?s house, any other witness statements, exculpatory evidence, and any other evidence in the case. 12 J. Gomez Is Convicted At A Trial In Violation of His Constitutional Rights and Despite Insuf?cient Evidence As A Matter of Law 50. All ?ve defendants?Gomez, Dominguez, Jovanovic, Yacoub, and Yalda?were simultaneously tried, though the trials were technically severed. (Tr. at IO). 51. Sandra Rodriguez, Rey Arroyo, and George Soria testi?ed regarding the events of that night. in many respects, their testimony was inconsistent with police reports and more af?rmatively directed at Mr. Gomez and the other boys. In closing, counsel for Gomez emphasized that Sandra Rodrigques ?made an upward motion? when asked how Gomez shot; that Mr. Arroyo did not see the gun when he heard shots that were ?red; and argued that Mr. Soria should not have been found credible. 52. The parties stipulated to the testimony of John Sanchez, who would have been quali?ed as an expert in ?rearms evidence and would testify that the gun recovered at the Gomez residence could have not the been the gun that ?red the bullet recovered at the crime scene. 53. Despite the fact that the gun Mr. Gomez ?red did not match the bullets found in the victim?s body, the State nonetheless argued at trial that Mr. Gomez was the shooter who killed Mr. Diaz. To do so, the State argued that there must have been a second gun at the scene which was never recovered, and that because another shooter at the scene was not identi?ed, Ariel Gomez must have had a second gun at the scene which he used to shoot Concepcion Diaz. 54. Detective Guevara testi?ed at Ariel Gomez?s trial. In so doing, Detective Gomez provided false testimony. For one, Detective Guevara claimed that he was the of?cer who located a Ruger pistol at the residence (R. 124-26), even though this contradicted the truth and other police records. Detective Gomez also testi?ed, falsely, that his treatment of Mr. Gomez during his interrogation was lawful. (E. at 128.) 55. The State?s case rested on a number of infer-w rather than evidence. For example: There was evidence that Gomez?s gun had only one bullet in it at the time Diaz was shot. Exhibit 24 (Excerpt of' Court?Reported Statement of Jose Dominguez).3 In reSponse the State argued that, because Gomez?s statement said they were ?cruising for girls? he would need a weapon with more than one bullet because he was going to ?impress more than one or two girls.? (Tr. at 32.). Despite the fact that the Ruger Gomez owned matched the gun seen at the crime scene, and Gomez had directed of?cers to that Gun, the State claimed ?the weapon that was recovered wasn?t the murder weapon.? 56. Indeed, there was no evidence of another gun presented at trial whatsoever. Judge Dernbach considered the evidence, pointed to Gomez?s statement, and ultimately agreed with the state that there was a reasonable inference that?despite the forensics?that the gun from the crime scene was disposed of. E. at 36. Thus, Judge Dernbach concluded: since the boys destroyed the car, they must also have destroyed the ?second gun.? ll.03.l993 p. 36 7?10. 58. Judge Dernbach found Ariel Gomez guilty of murder and sentenced him to 35 years in the Illinois Department of Corrections. K. Gomez?s Conviction is Af?rmed, While Dominguez?s is Overturned 59. On appeal to the First District, Gomez?s conviction was af?rmed. The Court found, among other things, the evidence suf?cient to sustain the first-degree murder charge. 60. While Mr. Gomez has languished in prison, his codcfendant, Mr. Dominguez, was set free because of errors at the simultaneous bench trials of the two men. On May 17, 2001, the 3 Jose Dominguez?s statement was not technically admitted against Gomez at trial, as doing so would have likely created a tension between Gomez?s right to Confrontation and Dominguez?s right to Silence. Mr. Gomez does not consent or waive his rights with respect to Dominguez's entire court reported statement. However, Mr. Gomez waives that right with respect to the portion attached, pages I through I ofthe Statement. 14 Illinois Appellate Court reversed Jose Dominguez?s murder conviction. g. 4. Mr. Dominguez argued that he could not be accountable for the death of Concepcion Diaz because the evidence failed to establish that the shot ?red from the Path?nder caused the death. The Court found that nothing in the record supported the inference of a second gun and concluded ?in light of the total lack of supporting evidence, the circuit court erred in assuming that the fatal bullet must have come from the Pathfinder.? Deminouez No. 1?98?45 19, slip op. at 12. 61. When considering Mr. Gomez? petition for habeas relief, U.S. District Court Judge Buckle commented that, is unjust that Mr. Gomez should sit in prison, convicted of murder, while his codefendant Dominguez] should be cleared of it on the grounds that one cannot have accomplice liability if the principle -Mr. Gomez- is innocent.? Judge Buckle nonetheless did not find that the strictures of federal habcas corpus law permitted relief for Mr. Gomez. Pierson, 232 .Supp. 2d at 890. 62. The Seventh Circuit af?rmed Judge Bucklo?s decision but commented: ?Without a doubt, a disturbing aspect of this case is that Dominguez?s conviction was overturned by a panel ofthe Illinois Appellate Court on the basis that there was insuf?cient evidence to prove that Gomez actually fired the shots killing the victim.? Jaimet. 350 F.3d at 678. NEW EVIDENCE DEMONSTRATES ARIEL ACTUAL INNOCENCE AND SUPPORTS HIS CONSTITUTIONAL CLAIMS I. Newly Evidence Regarding Who Actually Shot and Killed Concepcion Diaz. A. Ruth Antenatal 63. An eyewitness to the event at Cicero and Diversey on June 13, 1997, Ruth Antonetty, has averred that she was in the northwest parking lot of the intersection?where the Pathfinder drove through and where Mr. Diaz was shot at the time. Ex. 5, at 1i 2. 64. Before Gomez was even in the picture, Ms. Antonetty saw known Latin Brother gang members located on the northwest comer in possession ofa black handgun, and that she also saw individuals on the northeast corner with guns as well. 151. at 8-9. Specifically, Ms. Antonetty witnessed a Latin Brother gang member retrieve the black semi?automatic handgun from his car. Id. at 11 8. 65. Ms. Antonetty saw the Path?nder come by, get bricked, and then return. When the Path?nder returned, Antonetty avers, she ?saw a guy sitting on the passenger side of the car holding a large chrome handgun in his hand,? and that she ?saw this person ?re a single shot into the air,? with ?his arm positioned straight up into the air.? at 1] IE. 66. Ms. Antonetty further avers that she heard 2-3 more shots ?red ?but they didn?t come from the Pathfinder.? M. at Instead, they came from the individual she had seen earlier with the black gunrecently obtained af?davit, Ms. Antonetty reveals that ?the Latin Brother ?red those shots from the Fresh Market parking lot, towards the passing SUV, as the SUV entered the parking lot by the Little Ceasars. The shots missed the SUV and struck the person at the bus stop." 1d. After the Latin Brother fired 2-3 shots, Ms. Antonetty ?saw the person at the bus stop hit the ground like he was diving. 1 now know that he hit the ground like that because he was shot and killed.? E. at 1115. Ms. Antonetty saw the shots fired by the Latin Brother went towards the SUV as it passed through the parking lot, but that the shots missed the SUV and struck the person at the bus stop. Ms. Antonetty states de?nitively that the person who shot Mr. Diaz is not Ariel Gomez. Tl 15. 67. As Ms. Antonetty informed Detective Guevara in 1997, the shot that Gomez ?red into the air could not have been the bullet that killed Mr. Diaz. E. at till But did she tell Guevara about the other gun? [6 B. Expert? Raport? ofJoIm Nixon 68. Gomez has recently obtained new evidence?in the form ofa report from a ballistics, ?rearms, and trajectory expert?analyzing the evidence in this case. Ex. 7. In that report, expert John Nixon provides compelling evidence of' Mr. Gomez?s actual innocence- Speci?cally, that even if the State were correct that Mr. Gomez pointed a gun toward Mr. Diaz, given the trajectory ofthe entry and exit wounds on the body, Mr. Gomez could not have killed Mr. Diaz. M. at 6. 69. More speci?cally, the forensic analysis indicates that, if Mr. Gomez?s account is correct?that he ?red the gun into the air, not downward toward the crowd?that a bullet returning back to the ground would ?not cause signi?cant injury to a human, and certainly could not have caused the fatal injury to Mr. Diaz.? 70. In addition, and even assuming Gomez ?red over the Path?nder, any shot that hit Mr. Diaz would have ?a downward angle of trajectory.? E. at 4. However, Nixon explains that based upon the autopsy report, the bullet that struck Mr. Diaz had a signi?cant upward trajectory suggesting that the ?shot ?red from several feet away by someone holding a pistol at approximately waist height." l_d. Nixon further explains why the bullet that killed Mr. Diaz was likely not a .45 caliber weapon at all, both because of'size and strength issues. Nixon?s report provides new evidence regarding the signi?cance of the magazine clip having been missing from Gomez?s gun when it was recovered: Because the clip was unique to Gomez?s gun it ?rst only that gun, indicating that, if that magazine clip were found at the crime scene, it would strongly support Mr. Gomez's contention that the gun recovered at his mother?s house was the one scene; the discovery of the clip there would not, and could not, have been a mere coincidence. l'i' 72. In sum, Nixon concludes: a. If Gomez ?red vertically it could not have killed Mr. Diaz. b. The trajectory angle of the fatal bullet is incorrect for a bullet that was ?red over the Path?nder, because a downward trajectory would have been expected. The wounds are consistent with someone shooting at ground level. c. The hole in Mr. Diaz?s torso is relatively small for a .45 and unlikely the caliber of bullet that killed Mr. Diaz. The wounds also suggest that the fatal bullet was from a more powerful gun, like a 357' Magnum. d. The ?nding of the magazine clip after the incident not at the home is significant. e. And, in the end, regardless ofwhich version of events are assumed correct, ?the technicalities preclude Mr. Gomez being the shooter who ?red the fatal bullet (or the non-fatal bullet) that struck Mr. Diaz.? l_d. at 6. C. Dragon 73. Dragon .lovanovic was, at the time of Mr. Gomez?s trial a possible adverse party in a concurrent trial proceeding. Since trial, Mr. Jovanovic has come forward and averred that Gomez ?red a single shot from his 45. Cal Pistol; and (2) that the only gun ?red by Gomez was the gun that police recovered from his mother?s house. Exhibit 25, at 111] 7 l3. II. Evidence Regarding Detective Reynaldo Guevara?s Misconduct 7'4. Since trial, Gomez has learned a great deal that he did not know, or what was simply unknown, regarding Detective Guevara. 18 A. Witness Intimidation, Pressure, and Attempted Coercion In This Case 75. Three witnesses in this case report that Detective Guevara attempted to get them to falsely identify Gomez as the shooter of Mr. Diaz, and then withheld evidence of these tactics from the defense. 76. Ms. Antonetty was interviewed by Detective Guevara after arriving at the police station on one 14, 1997that interview, Ms. Antonetty informed Detective Guevara that the passenger in the SUV fired a single shot into the air. l_d. Detective Guevara then escorted Ms. Antonetty to a door that was covered with a piece of paper. E. at ?ll 9. Detective Guevera informed Ms. Antonetty that ?this person was the individual who shot and killed the guy? as he lifted the piece of paper from the door. m. at 1119. 77. Ms. Antonetty again informed Detective Guevara that Gomez did not fire the shots that killed the person at the bus stop. E. at fl] 9. Detective Guevara refused to accept Ms. Antoinetty?s account. She was taken back for a second interview with Detective Guevera. E. at 1] 20. In that conversation, Detective Guevera attempted to force Ms. Antonetty to identify Gomez once again. M. at 1i 2! . Ms. Antonetty refused to do so. E. at 1] 78. Detective Guevera intimidated Ms. Antonetty on numerous occasions and fed her information that he wanted her to say. E. at 11 22. Ms. Antonettv refused to succumb to pressure from Detective Guevera. E. at 1] 79. Ms. Antonetty wasn?t the only witness who was intimidated and pressured by Detective Guevera on June 14, 1997. Another eyewitness, Maria Castro, was pressured as well. 80. Ms. Castro recalled that one of the ?detectives [was] repeatedly pressuring me to identify the driver and the shooter of the car.? Ex. 7, at 11 5. The detective was incredibly 19 aggressive with Ms. Castro. While at the police station, the juvenile witness was locked in a small holding area without access to contact her parents or an adult. 8 I. Another eyewitness, Debbie Daniels, experienced similar tactics from Detective Guevara. Ex. 6 at 1i 7- Detective Guevera repeatedly attempted to pressure Ms. Daniels into saying that she ?could identify the driver and the passenger of the E. at 1] 5. Ms. Daniels averred that Detective Guevera ?wanted me to say that certain people shot and killed the guy at the scene.? E. at 7. 82. Ms. Daniels repeatedly informed Detective Guevara that she could not make an identification of the person who killed the man. E. at 7. In spite of that, Detective Guevera continued pressuring Ms. Daniels into identifying his suspect. E. 83. At one point in the interview, Detective Guevara showed Ms. Daniels a photo array. While showing her that array, Detective Guevara ?pointed at the specific person he wanted me to say shot the guy at Cicero and Diversey.? E. at i] 7. 84. Detective Guevara threatened to arrest Ms. Daniels unless she fell in line with what he wanted her to do. Id. atil 8. B. videos-e Regarding Detective Guevara ?s Suppression and The Desrruc?on of?ie cap 85. Since trial, Mr- Gomez has undertaken strenuous efforts to get to the bottom of the ?gun clip? situation. In 20] 2, Ariel Gomez ?led a Freedom of Information Act request seeking information regarding the physical evidence collected in his case, and received documents that were never previously in his possession. In addition, after ?ling his pro se petition for post-conviction relief, this Court granted Mr. Gomez?s Motion for Limited Discovery, allowing Gomez to subpoena the Chicago Police Department and the Illinois State Police for document related to this case. What does were withheld? 20 86. These efforts were fruitful. For one, through his FOIA request, Mr. Gomez personally learned that the ammunition clip had been destroyed in October of 2000,just two years after his conviction and, in fact, before Mr. Gomez?s conviction became ?nal. (Gomez?s Petition for Leave to Appeal to the Illinois Supreme Court was denied on January 29, 2001). 87. Notably, in response to both FOIA requests and subpoenas ?led in these- proceedings, neither the ISP or CPD have produced the original clip sheet, and the only report like it fails to indicate w_ho or the clip was found. 88. As Nixon?s report above indicates, and incorporated here, these developments are substantial for Gomez: to be able to demonstrate that his unique .45 Cal gun clip was at the scene would have eviscerated the ?two gun? theory and inference proffered by the State at trial without any evidence. In addition, the clip itself could have likely had important biological information on it, like ?ngerprints and DNA, which Gomez could have had forensically tested. 89. In the end, Gomez has obtained new evidence that would have assisted his defense but also demonstrates that evidence in his case was destroyed in violation of Illinois law. 7'25 ILCS I 16-4 (?After ajudgment of conviction is entered, the evidence shall either be impounded with the Clerk of the Circuit Court or shall be securely retained by a law enforcement agency. Retention shall be until the completion of the sentence, including the period of mandatory supervised release for the offense, or January I, 2006, whichever is 2 C. Detective Gaevara?s Coercive Inierrogaiion of Gomez 90. Pro-trial, Gomez moved to suppress his ?statement,? which would be the primary evidence introduced against him at trial. Detective Guevara was only individual who testified regarding the substance of that Statement. Exhibit 26, Motion to Soppress. Speci?cally, Gomez alleged that he was not given his Miranda warnings or provided with an attorney and that, ultimately, Mr. Gomez was ?coerced during questioning" and ?forced to sign a paper stating that he was treated hospitably? even though that was false. E. Among other things, the ?coercion? and ?force? used to get Mr. Gomez to sign a statement included Detective Guevara physically abusing Mr- Gomez during his over-night interrogation. Exhibit 27 (Af?davit ofAriel Gomez). Indeed, the record now includes evidence that Gomez?s mother and brother Victor saw blood on Mr. Gomez?s face when they were ?nally allowed to see him at Area 1% Exhibit 28 (Af?davit of Celia Gomez). D. Detective Guevara Has Receniiy invoked His Fi?'ii Amendmeni Right to Silence When Asked Questions, Under Oath, Regarding His Investigation oftire Diaz Homicide and His Sworn Testimony in This Case 92. In the time since Mr. Gomez was denied relief in the federal system, further evidence undermining con?dence in his conviction has come to light. On December 23, 2013, Detective Guevara provided deposition testimony in Rivera v. Guevara 12 CV 04428 (ND. 2012), a civil suit alleging misconduct by Detective Guevara. Ex. 29 (complaint in Rivera v. Guevara). Among many other matters, Detective Guevara was asked about his investigation of the murder of Concepcion Diaz. Ex. I2, at 452?462. 93. Detective Guevara was asked whether he interviewed Ruth Antonetty and whether she told him that she only witnessed one shot ?red from Mr. Gomez?s vehicle. In 22 response, he invoked his Fifth Amendment right against self?incrimination and refused to answer the question. I_d. 94. Detective Guevara was asked whether he took Ruth Antonetty to the location where Mr. Gomez was sitting and told her ?this was the guy who shot at her,? or words to that effect. Detective Guevara invoked his Fifth Amendment right against self-incrimination. Ii. 95. Detective Guevara was asked whether Ruth Antonetty told him that she had heard two or three shots that did not come from Mr. Gomez?s vehicle. Detective Guevara refused to answer, and instead invoked his Fifth Amendment right against self-incrimination. 96. Detective Guevara was asked whether he told Ruth Antonetty her account was ?bullshit? and that he knew the shots came from Gomez?s vehicle. Detective Guevara invoked his Fifth Amendment right against self-inerimination. I_d. 97. Detective Guevara was asked whether he told Ruth Antonetty that he did not need her because he had enough witnesses. In response, Detective Guevara invoked his Fifth Amendment right against self-inerimination. E. 93. Detective Guevara was asked whether he falsified police reports in the course of the investigation and he again invoked his Fifth Amendment right against self-incrimination. Likewise, when asked about Debbie Daniels and Maria Castro, Detective Guevara similarly invoked his Fifth Amendment right against self-incrimination and refused to answer. 99. Detective Guevara was asked whether he destroyed an ammunition clip found at the crime scene. He invoked his Fifth Amendment right against self-incrimination and refused to answer the question. 23 100. Detective Guevara was asked whether he destroyed the ammunition clip ?because it would provide exculpatory evidence for Mr. Gomez whom you decided to frame for killing Mr. Diaz?? Detective Guevara invoked his Fifth Amendment right against self-incrimination. 101. Detective Guevara was asked whether he provided ?false testimony at trial regarding [his] investigation of the Concepcion Diaz murder, [his] investigation of the crime, [his] intimidation of witnesses and other facts related to Mr. Gomez being a suspect for the shooting.? Detective Guevara invoked his Fifth Amendment right against self-incrimination. E. E. New Evidence Regarding Detective Guevara ?5 Pattern and Practice afintimidating, Manipulating, and Coercion of Witnesses and Suspects i. Mampniatian onyewitnesses 102. New evidence has revealed that Detective Guevara, repeatedly and improperly influenced eyewitness in murder cases. The following is not an exhaustive list, but provides a number of documented allegations of that misconduct. 103. In three recent proceedings, Detective Guevara refused to answer any questions about allegations that he manipulated dozens of witnesses to provide false identi?cations and used force in an effort to coerce confessions. Instead Detective Guevara invoked his Fifth Amendment right not to answer the questions because truthful responses could subject him to criminal liability. gig Exhibit 12 (Detective Guevara?s testimony in People v. Soiaehe and Reyes, 93 CR 01244), Exhibit 13 (Detective Guevara?s testimony in Peopie v. Montanez and Serrano, 93 CR 13173); Ex. 11 (Deposition testimony in Rivera v. Guevara, 12 CV 04428). 104. In the Rivera case, Detective Guevara is accused of engineering the wrongful conviction of the plaintiff by manipulating the eyewitness identi?cation of a twelve-year-old child. Exhibit 29, Rivera v. Guevara, 12 CV 04423 (ND. 111), Complaint- At his deposition in the Rivera case, in addition to invoking his Fifth Amendment right against self-incrimination 24 with regard to Ariel Gomez?s case, Detective Guevara also invoked his Fifth Amendment right against self?incrimination with regard to 32 other instances of misconduct. See generally Ex. 12. 105. A number of the individuals about whom Detective Guevara refused to testify are discussed below. For each individual who Detective Guevara refused to answer questions about, Mr. Gomez has placed an asterisk next to his or her name to indicate that fact:1 The list includes: a. Bill Dorsch* is a former Chicago police detective. While serving with the Chicago police department, Dorsch was assigned to investigate a murder. Several months after the murder occurred, Guevara brought two juveniles to the police station who purported to have witnessed a shooting and recorded the license place ofthe shooter. 4 In court, Detective Guevara refused to testify about his interactions with: Bill Dorsch (Exhibit 14 at 45-50), Francisco Vicente (Exhibit 14 at 22-24, 31-38, 41, 44, 45, 68-70), Timothy Rankins (Exhibit 14 at 24, 25, 43), Anna Flores (Exhibit 14 at 26, 54, 55; Exhibit 12 at 30-32), Graciela Flores (Exhibit 14 at 26, 54, 55; Exhibit 12 at 30, 31), David Velazquez (Exhibit 14 at 26, 51-54; Exhibit 12 at 20-22), Efrain Sanchez (Exhibit 14 at 27, 55, 56), Julio Sanchez (Exhibit 14 at 56, 57), Adolfo Frias Munoz (Exhibit 14 at 27, 28, 57, 58; Exhibit 12 at 16, Jose Melendez (Exhibit 14 at 28, 60-62; Exhibit 12 at 33, 35), Gabriel Solache (Exhibit 14 at 28, 29; Exhibit 12 at 8-1 I), Arturo Reyes (Exhibit 14 at 29; Exhibit 12 at 5-8, 40, 41), Virgilio Muniz (Exhibit 14 at 30, 63), Luis Figueroa (Exhibit 14 at 59; Exhibit 12 at 37-39), Angel Diaz (Exhibit 14 at 59, 60; Exhibit 12 at 38, 39, 41), Wilfredo Rosario (Exhibit 14 at 64, 65), Xavier Arcos (Exhibit 14 at 65; Exhibit 12 at 27, 28), Gloria Ortiz Bordoy (Exhibit 14 at 65, 66), Robert Ruiz (Exhibit 14 at 67; Exhibit 12 at 24-26), Leshurn Hunt (Exhibit 12 at 14, 15), Adrian Duta (Exhibit 12 at 15, 16), Voytek (Exhibit 12 at 18, 19), Daniel Pena (Exhibit 12 at 22-24), Annie Turner (Exhibit 12 at 28, 29), Samuel Perez (Exhibit 12 at 32-34), Juan Johnson (Exhibit 12 at 33, 34), and Thomas Sierra (Exhibit 12 at 34, 35). In his deposition, Detective Guevara refused to testify regarding Juan Johnson, William Negron, Robert Almodovar, Charles Ellison, Angel Gaya, Johnny Flores, Rosendo Hernandez, Juan Hernandez, Jacqueline Montenez, Manuel Rivera Virgilio Muniz, Adolfo Rosario, Eruby Abrego, Jose Cruz, Anthony Rosario, Johnny Martinez, Edwin Davila, Luis Serrano, Robert Bouto, Edwin Ortiz, Victor Vera, Tony Gonzalez, Juan Hernandez, David Rivera, Antonio McDowell, Rubin Sanchez Joaquin Gonzalez Eliezar Cruzado, Reynaldo Munoz, Almarie Lloyd, and Melvin Warren. See generally Ex. 12. 25 b. Based on the information provided, Detective Dorsch created a photo array for thejuveniles to attempt to identify the shooter. While the ?rstjuvenile was viewing the photo array, and before he identified any of the photographs, Guevara pointed to the suspect?s photo and told thejuvenile ?that?s him.? The juvenile then agreed with Guevara, saying that was the person who committed the shooting. Exhibit 30. c. Dorsch then directed Guevara to leave the room and had the otherjuvenile view the same photo array, and he was unable to make any identification. E. d. Based on the firstjuvenile?s identi?cation, the suspect was charged with murder. Subsequently, Dorsch spoke to the twojuveniles without Guevara being present. Thejuveniles admitted that they had been paid to falsely claim that the suspect was the person responsible for the shooting. After prosecutors spoke to the twojuveniles, the suspect was released. e. Guevara?s activities have drawn the interest of federal law enforcement of?cers. In 200i the FBI authored a special report detailing the criminal activity of Chicago Police Of?cer Joseph Miedzianowski and his associates, including Detective Reynaldo Guevara. The report details that Guevara, while acting in his capacity as a police of?cer, 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 lineups of murder su5pects. 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. Exhibit 3i at [3-14. 26 ln I989, Detective Guevara coerced Samuel Perez* into falsely identifying Juan Johnson as the person who killed Ricardo Fernandez. Guevara put Perez inside his ear, showed Perez 3 photo of uan Johnson, and told Perez that he wanted Juan Johnson to take the blame for the murder. Unsurprisingly, Perez subsequently falsely identi?ed Johnson as a murderer. Exhibit 32. In 1989, Detective Guevara also coerced Salvador Ortiz into making a false identi?cation ofJuan Johnson, which he later recanted- Exhibit 33. In I989, Detective Guevara coerced Virgilio Muniz* into making a false identi?cation by repeatedly threatening Muniz that if he did not identify Manuel Rivera as the murderer, Muniz would ?go down for the murder.? S_ee_ Exhibit 34. in 1989, Detective Guevara coerced Virgilio Calderon Muniz (unrelated to Virgilio Muniz, described in the above paragraph) into makinga false identification by telling him who to identify and making a veiled threat as to what would happen if he did not. ,S_ee_ Exhibit 35. In I99 1 Detective Guevara coerced Wilfredo Rosario* into making a false identi?cation 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 ?red, the type of vehicle used in the crime, and the participants in the crime. Rosario recanted his identi?cation of Arcos at trial. Though Arcos was still found guilty of murder by ajury, the appellate court overturned the conviction based on the lack of suf?cient 2? evidence. Exhibit 36. In 1991, Detective Guevara physically coerced sixteen year-old David Velazquez* into making a false identi?cation and giving false testimony by taking him to a rival gang?s territory, beating him while chained to a wall at Area 5, and threatening to ?get you for anything I can? ifhe did not talk. All of the false details of Velazquez?s statement were provided by Guevara. Exhibit In 1993, Detective Guevara coerced an identi?cation 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. Exhibit 38. . In 1993, Detective Guevara used physical violence and inducements to coerce Francisco Vicente? into giving false testimony at thejoint 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. Guevara then provided Francisco Vicente with the details of the crime. Exhibit 39. In 1993, Detective Guevara beat Timothy Rankins* with a ?ashlight, threw him out of his chair, and placed him in a chokehold to induce a statement implicating Armando Serrano, Jorge Pacheco, and Jose Montanez. As a result, Rankins testified falsely against the men in the Grand Jury. Exhibit 40. 28 O. In I993, 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. Exhibit 41. 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. 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, despite the fact that each of those witnesses had previously told the police that they had not been able to see the shooter. Exhibit 42. In 1991, Detective Guevara told Efrain and Julio Sanchez to pick David Colon out ofa lineup. As a result, these men falsely claimed that Colon had committed murder, but later came forward to bring Detective Guevara?s misconduct to light. Exhibit 43. In 1995, Detective Guevara coerced Evelyn Diaz* into making a false identi?cation and providing false testimony to the Grand Jury by threatening Diaz that ifshe did not identify Luis Serrano as the shooter, her children would be taken away by the Department of Children and Family Services. ?es; Exhibit 44. 29 In l995, Detective Guevara told Luis Figueroa to falsely identify Angel Diaz* as the perpetrator even though Figueroa did not see anything. Figueroa identi?ed Diaz but recanted his identi?cation at trial. Exhibit 45. 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-eight? hour interrogation, Guevara yelled in her face, threatened that her children would be taken by the Department of Children and Family Services, called her ?the 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.? SE Exhibit 46. In I 995, Detective Guevara coerced Rodolfo Zaragoza, who was a victim and an eyewitness to a crime, into making a false identi?cation and providing false testimony. Zaragosa was intimidated by Guevara and identi?ed Ricardo Rodriguez as the offender because Guevara told him that Rodriguez was the shooter. _S_ge_ Exhibit 47. In 1995, Detective Guevara engaged in misconduct when he told Jose Melendez* to falsely identify Thomas Sierra as the shooter even though Melendez did not see the shooter. Melendez identi?ed Sierra, but recanted his identi?cation at trial. Exhibit 48. . In 1996, Detective Guevara coerced Maria Rivera* into makinga false identi?cation ofa man in a lineup by unzipping his pants, and propositioning her. Rivera later told the prosecutor that she had falsely identi?ed an 30 individual in a lineup at Guevara?s direction. The prosecution later abandoned murder charges against the individual whom Rivera falsely identified in the lineup. ?e Exhibit 49. In 1997, Detective Guevara coerced Robert Ruiz* into making a false identi?cation. 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 had not seen the shooter or the driver involved in the crime, Guevara told Ruiz whom to identify and what to say in his statement. Ruiz ?nallyr implicated Freddy and Concepcion Santiago in the murder because Ruiz believed that Guevara would continue to harass him until he changed his story. Ruiz recanted his identi?cation at trial, and thejudge found Freddy and Concepcion 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. Exhibit 50. In 1993, Detective Guevara used suggestive tactics to force twelve-year?old Orlando Lopez to falsely identify Jacques Rivera* as the person who shot Felix Valentin. As a result, Rivera was convicted of murder. In 20] 1, Lopez testi?ed at an evidentiary hearing that he had never been able to identify Rivera as the murderer. As a result, Rivera received a new trial. Ultimately, the State?s Attorney.r dropped all charges against Rivera. Exhibit 51. In November 2001, Detective Guevara?s girlfriend, Judith Martinez, attended a trial in which Guevara was testifying and observed the testimony of trial witnesses. She then conferred with Guevara, even though the Court had 31 ordered all witnesses excluded from the courtroom to prevent collusion among the witnesses. Exhibit 52; Exhibit 53. aa. In 20] l, the ?rst district granted Tony Gonzalez* a post-conviction hearing on the basis that Detective Guevara conducted an unduly suggestive lineup wherein he concocted an array in which Gonzalez?s photo was the only one that stood out from the rest in a photo array. ?g Exhibit 54. 2. Guevara ?3 Use ofForce l06. In addition to using improper suggestion, manipulation, and other forms of intimidation, Detective Guevara has been alleged to have, in many instances, he has used force to get either a suspect or a client to make a statement or provide a bogus identi?cation. Previously unknown examples include: 10?. In [982, 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, threatened to ?snap? it, and handcuffed her so that her skin broke. He also hit her across the face with a metal bracelet he was wearing and called her a ?nigger bitch.? Turner sought medical treatment and ?led a complaint with the Of?ce of Professional Standards. Exhibit 55. 103. In 1982, Detective Guevara and three other of?cers 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 ?led a complaint with the Of?ce of Professional Standards the next day. Exhibit 56 . 32 109. In 1983, Detective Guevara and other of?cers 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 ?led a complaint with the Of?ce of Professional Standards. Witnesses who saw Hunt while in custody corroborated his claim of a beating by the police. The criminal courtjudge suppressed Hunt?s confession, and ajury returned a favorable verdict in a related civil rights action on Hunt?s claim of excessive detention against the City of Chicago. Exhibit 57'. 1 10. In 1984, Detective Guevara and other of?cers physically assaulted Graciela Flores* and her 13-year old sister Anna during a search oftheir home, during which the of?cers did not identify themselves as police. Guevara repeatedly slapped Graciela, called her a ?bitch? and pulled her hair. As a result of this incident, Graciela?s arm was put in a sling and she spent one week in the hOSpitaI. Exhibit 58. 1. In 1935, Detective Guevara attempted to coerce a false statement from Reynaldo Munoz*. Guevara handcuffed Munoz and puthim 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 ?st. Guevara then took Munoz to rival gang territory where he allowed rival gang members to spit on Munoz and beat Munoz about the head. Exhibit 59. 12. 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 ?led a complaint with the Chicago Police Department?s Of?ce of Professional Standards (OPS). Although Guevara denied the charges, Garcia?s complaints were corroborated by physical evidence, as he was treated at the 33 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. Exhibit 60. I 13. 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. ice Exhibit I 14. In 1986, Detective Guevara pulled over Melvin Warren* because Warren cut him offwhile driving westbound on Augusta Boulevard. Guevara called Warren a ?nigger dog? and ?threatened to tear [Warrems] 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 Of?ce of Professional Standards (OPS). OPS sustained Warren?s allegations that Guevara had physically and verbally assaulted him and recommended that Guevara be reprimanded. Exhibit 62. 1 15. 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 falsely confess to a crime he knew nothing about. Exhibit 63. 16. 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 34 would serve seven years in prison whereas if he did not confess, he would be sent away for ?fty years. Guevara then promised Rivera that if he signed a statement, he could go home. Exhibit 64. 1 l7. In I991, 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. Exhibit 65. 13. 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.? Exhibit 66. 19. In 1993, Detective Guevara arrested ?fteen year old Eliezar Cruzado* and threatened him with life imprisonment ifhe 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. 3353 Exhibit 67. 120. In 1993, Detective Guevara used physical force and threats to coerce a false confession from Adolfo Prim-Munoz?. Over the course of a two-day interrogation, Frias-Munoz 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 of?cers. Though isolated in a locked interrogation 35 room, Fries?Munoz could hear his wife screaming and his son crying in another room. Guevara threatened Frias-Munoz that if he did not confess, his wife would go to prison and his children would be taken away. Fries-Munoz, who did not speak English, agreed to give a statement to an assistant state?s attorney. rias-Munoz spoke in Spanish and Guevara translated the statement so that the prosecutor could write the statement in English. Fries-Munoz then signed a statement he could not read. Exhibit 68. 12 . 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 ifhe signed a statement. When Duta?s father came to see Data 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. Duta complained to his father of being struck in the head and stomach by Guevara. Exhibit 69. I22. In I995, Detective Guevara and his partner Detective Ernest l-Ialvorsen coerced a confession from 17-year-old Santos Flores after handcuffmg him to the wall of a locked interview room and refusing his requests for an attorney. During the course of the l-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 ofday. Flores eventually gave a statementto 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 oforanda. Exhibit 70. 123. 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 36 noti?cation to the Polish consulate, and withouta Polish language interpreter. Dembski could not read the statement he eventually signed as it was written in English. Exhibit 7] . 124. In I998, Detective Guevara repeatedly hit Rosauro Mejiain an attempt to coerce a confession from him. Rosauro never confessed and was ?nally released after being held in custody for three days. Exhibit 72. I25. In 1998, Detective Guevara repeatedly pulled Adriana Mejia?s hair and struck her once on the back of her neck while she was interrogated. Exhibit 73. 126. 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 false statement. Exhibit 74. 127. 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 le? ear. Exhibit 75. CLAIM I ACTUAL INNOCENCE ARIEL CONVICTION AND CONTINUED DETENTION VIOLATE HIS RIGHT TO DUE PROCESS OF LAW BECAUSE NEWLY DISCOVERED EVIDENCE PROVES HIS INNOCENCE I28. Petitioner re-alleges every paragraph of this petition and expressly incorporates them as if they were fully set forth herein. l29. Ariel Gomez is innocent ofthe crime for which he was convicted. Full of new evidence, the record now makes his innocence demonstrably clear. 37 130. It is well?established that Illinois has no interest in wrongfully ineareerating innocent persons. Indeed, to do so would be ?fundamentally unfair? as a matter of procedure and, as a matter of substance, would be ?so conscience shocking as to trigger the operation of substantive due process.? People v. Washington, 17] 475, 487-488 (1996); see also U.S. Consr. AMENDS V, XIV. 131. Accordingly, an actually innocent defendant may bring a free-standing claim of actual innocence, seeking reversal of his conviction. To prevail, the petitioner ?must present new, material, noneumulative evidence that is so conclusive it would probably change the result on retrial.? People v. Coleman, 2013 IL 113307 at 1] 96 (20l3) (citing Washington, 171 Ill.2d at 489). 132. New ?means the evidence was discovered after trial and could not have been discovered earlier through the exercise of due diligence.? Material evidence is anything ?relevant and probative of the petitioner?s innocence? and noneumulative means that the evidence ?adds to what thejury heard.? E. To be conclusive, ?evidence need not be completely dispositive of an issue to be likely to change the result upon retrial.? E. at 11'? 96-97. Instead, the appropriate measure is whether the new evidence, when considered together with the trial evidence, it ?would probably lead to a different result.? E. 133. Ms. Antonetty, who has for the ?rst time been willing to admit that she knows who the real shooter is, certainly constitutes new evidence. People v. Washington, 348 231, 237-38 (1 st Dist. 2004) (finding cause where witness did not sign affidavit and provide exculpatory information until after ?ling of ?rst post-conviction petition), attached hereto as Exhibit 24; Boss v. Pierce, 263 F.3d 7?34, 74] (7th Cir. 2001) (explaining that a witness?s knowledge is ?quite different from the type of evidence typically found to be available 38 to defense counsel through the exercise of reasonable diligence Because mind-reading is beyond the abilities of even the most diligent attorney, such material simply cannot be considered available in the same way as a document?). That she has also established the fact that there were other guns there; that those guns did not belong to Gomez; and that she actually saw the shooter is powerful evidence of innocence. 134. The new trajectory and ballistics report provided by John Nixon falls into the same category: the analysis is new, in that the report did not exist at the time of trial, and some of the information presented in that report was not known at the time of the trial. In addition, the Nixon reports constitutes noncumulative evidence?there was testimony at trial regarding the gun clip?nor was there any testimony regarding the path oftravel ofthe bullet through Mr. Diaz?s body, and nor was there any evidence suggesting that a .45 Caliber gun was very likely not the murder weapon. This evidence would likely change the result on retrial; that is, had the jury been presented with evidence regarding the scientific incompatibility of the State?s case and the manner in which Mr. Diaz was shot, Mr. Gomez would have never been convicted and would certainly be acquitted on retrial. 135. Likewise, Detective Guevara?s recent decision to assert the Fifth Amendment regarding this case calls into question the entire proceedings and is thus evidence of actual innocence. The assertions of privilege are certainly new; they did not exist at the time of Mr. Gomez?s prior filing. The privilege assertions relate to central issues in the case, whether Detective Guevara beat Gomez, whether he destroyed evidence, and whether he otherwise suppressed exculpatory material. The evidence is obviously noncumulative material. At trial, defense counsel did not cross examine Detective Guevara in any real detail, and a CPD of?cers 39 decision to take the Fifth?while it cannot be a source of criminal liability?is obviously substantial. 136. Moreover, where, as here, the pattern and practice ofmisconduct relates to a central issue in the case?namely, whether Mr. Gomez shot Mr. Diaz?because the pattern and practice of misconduct described above is sufficient to demonstrate actual innocence. See Almodovar, 2013 IL App (1 st) l0147'6, at 111] 62-379. The evidence is new, even if they pre-date Mr. Gomez?s prosecution, People v. Reyes, 369 Ill. App.3d I, 20 (complaints lodged against detectives are ?new? when later learned of by defendant as due diligence does not require a petitioner to ?interview[] every person ever detained? by such detectives, as that obligation would be ?unreasonable?), and many took place after Mr. Gomez was convicted and after is prior filings. Nor can it be doubted that this evidence would have been powerful. This was a close case. Of the four boys charged, only Gomez remains convicted. The evidence, which was essentially the same for the others, was too threadbare to sustain the charges. The same should be true now as regards Mr. Gomez. 13?. Finally, as must be emphasized, this Court?s review of Mr. Gomez?s claim of actual innocence takes consideration of the record, and the cumulative weight of the evidence. This includes notjust the foregoing, but also Mr. Jovanovic?s af?davit along with the fact that the First District itself reversed Mr. Dominguez?s conviction because there was insuf?cient evidence to determine that Gomez had killed Mr. Diaz. See Coleman, 2013 IL 13307, at 11 97 (?Probability, not certainty, is the key as the trial court in effect predicts what anotherjury would likely do, considering all the evidence, both new and old, together?) Indeed, it well established thatjudicial decisions qualify as new evidence if [they] did not exist until after defendant?s trial.? People v. Patterson. 192 ll .2d 93, 139 (2000). 40 CLAIM II DUE PROCESS 5TH AND 14TH AMENDMENTS U.S. CONSTITUTION ARTICLE 1, SECITION 2 ILLINOIS CONSTITUTION THE STATE FAILED TO PRODUCE BRADY MATERIAL THAT WOULD HAVE ALLOWED MR. GOMEZ TO BOTH DEMONSTRATE HIS INNOCENCE AND TO IMPEACH THE CREDIBILITY OF DETECTIVE GUEVARA 138. Petitioner incorporates each ofthe preceding paragraphs as though fully restated herein. 139. Detective Guevara was aware of his pattern and practice of improperly in?uencing eyewitnesses and the State had a duty to furnish this information to Mr. Gomez. In addition, where, as here, eyewitnesses refuse to identify as criminal defendant as the perpetrator of a crime, that evidence is exculpatory, meaning its suppression further violates due process. 140. It is well-settled that the prosecution has a duty to disclose evidence that is materially favmable to a criminal defendant; the failure to do so violates due process. Brady v. Maryland, 373 U.S.33, 87 (1963). The prosecution bears the burden ofleaming ofany evidence favorable to the defendant, which is ?known to others acting on the government?s behalf in the case, including the police.? Kyles v. Whitley, 514 US. 419, 437 (1995). 141. The standard of review is whether ?there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.? Id. at 434 (quoting United States v. Baglev, 473 667, 682 (1985))- ?The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.? 1d. 142. Here, the Brady evidence falls into ?ve general categories: (I) the suppression of evidence regarding the real killer?s identify and circumstances of the crime; (2) the suppression 41 of efforts to coerce and intimidate eyewitnesses?Ruth Antonetty, Debbie Daniels, and Maria Castro; (3) the suppression of information regarding the location where the ammunition clip was recovered and its eventual destruction; (4) evidence regarding Detective lGuevara?s pattern and practice of intimidating, manipulating, and coercing witnesses; and (5) failing to disclose Detective Guevara?s use of violence to secure identifications or statements and confessioas. 143. The import of the evidence cited above cannot be doubted. Indeed, the number of due process issues related to this case?which include perjured testimony?indicates that a new trial is warranted here. It needs no explanation why evidence of an alternative suspect is material, or why evidence of coercion, intimidation, and targeting of Gomez (from Antonetty, Daniels, and Castro) would have likely changed the result at trial. 144. As explained above and in Nixon?s report, the absence of the gun clip at trial was significant. Indeed, ?Unknown? CPD officers efforts to suppress the location of where that gun clip was found, prejudiced the defense. Had the clip been found at Diversey and Cicero or in the Path?nder, the State?s already weak ?two gun? theory would have held no ground. I45. In addition, the early and unlawful destruction of this evidence has further deprived Mr. Gomez of due process. I46. As courts have already found, as this Court should as well, that the pattern and practice evidence presented herein is sufficient to warrant relief. Detective Guevara?s pattern and practice is notjust exculpatory, but would have provided crucial impeachment evidence both at Gomez?s suppression hearing and at trial. At the suppression hearing, Gomez would have been able to use this information to help convince the Court that his claims of coercion were in fact true, and that the ?statement? taken by? Guevara was, in fact, involuntary ad unreliable. At trial, again, Detective Guevara went completely unimpeached both with respect to the ?statement,? 42 and in regards to his testimony about his ?investigation? of the crime. Had the jury known that Antonetty, Castro and Daniels are not outliers?but that Detective Guevara has abused witnesses elsewhere to get them to finger a suspect?the outcome at trial would have been different. Detective Guevara?s widespread pattern was known by the City of Chicago, but hidden from the Defense; its exposure demands justice. 5TH AMENDMENT, 14TH AMENDMENT CONSTITUTION ARTICLE 1 SECTION It], SECTION 2? ILLINOIS CONSTITUTION NEWLY DISCOVERED EVIDENCE OF TORTURE, COUPLED WITH OTHER EVIDENCE NOW IN THE RECORD, DEMONSTRATES THAT STATEMENT WAS OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS 147. Petitioner incorporates each ofthe preceding paragraphs as though fully restated herein. 143. Both the United States and Illinois? Constitutions prohibit the State from using statements made involuntarily and obtained through coercion. US. CONST. AMD. V, ILL CONST., ART. 1, 10: Pavne v. Arkansas, 356 US. 560, 561(1958) (?The use in a state criminal trial of a defendant's confession obtained by coercion?whether physical or mental?is forbidden by the Fourteenth Amendment?); People v. Bates, 213 Ill.App.3d 288, 297 (Ist Dist. 199]) . Indeed, ?use of a defendant?s physically coerced confession as substantive evidence of guilt is never harmless error.? People v. Wrice, 2012 1L 111860, 962 934 (111. 2012). 149. ?Whether a statement is voluntarily given depends upon the totality of the circumstances. The question must be answered on the facts of each case; no single fact is dispositive. Factors to consider when determining voluntariness include: the defendant?s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; 43 and any physical or mental abuse by police, including the existence of threats or promises.? People v. Braggs, 335 Ill. App. 3d 52, 66 (lst Dist. 21102) (internal quotes and citations omitted)- In addition, in the case of juveniles, trial courts must take great care ?to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.? In re Gault, 337 US. 55 (1967'); see also Halev v. Ohio. 332 U.S. 596, 599-600 (1948). 150. Here, the evidence described above calls into question the Court?s prior conclusion that Mr. Gomez?s rights were not violated when he was interrogated by Detective Guevara. Specifically, Mr. Gomez avers that he was physically abused, and evidence in the record now supports this claim. Ex. 28. Likewise, thejuvenile factors were never considered by the original court but a dispositive one?whether a parent was at the station and denied access to her child?was present here. SHee People v. McDaniel, 326 Ill. App. 3d 771, 783 (Ill. App. Ct. 2001) (explaining that ?when ajuvenile?s parents are present and request to confer with their child, and they are effectively refused access to the child, the presumption arises that the juvenile?s will was overborne?). 151. Moreover, the wealth of previously-unavailable or unknown evidence regarding Detective Guevara?s use of force against suspects in murder cases?along with his invocation of the Fifth Amendment when asked about ms case?illustrates that, in fact, Mr. Gomez?s constitutional rights were violated when he was coerced into signing the statement that followed Detective Guevara?s coercive tactics. Moreover, the Statement itself, on its face, is unreliable and several facts?like Mr. Gomez having a step father or taking the Path?nder without his mothers permission?are demonstrably false, further illustrating that the statement was coerced. Ex. 27. 44 CLAIM IV CUMULATIVE ERROR CONCERNS 0F FUNDAMENTAL FAIRNESS AND CUMULATIVE ERROR DEMAND THAT GOMEZ BE GRANTED A NEW TRIAL 152. Petitioner re-alleges every paragraph of this petition and expressly incorporates them as ifthey were fully set forth herein. 153. Even if individually the errors and other matters alleged here are not found to be suf?cientIy prejudicial to grant Ariel Gomez post-conviction relief, the cumulative effect of all the matters alleged in this petition deprived Mr. Gomez of his fundamental due process right to a fair trial. See Peonle v. Jackson, 205 Ill. 2d 247, 283 (200!) (?individual errors may have the cumulative effect of denying a defendant a fair hearing"). Accordingly, where, as here, cumulative error is present, the Illinois Supreme Court ?has reversed convictions and sentences when it was clear that the cumulative effect of the errors deprived the defendant of due process.? Lil. 45 CONCLUSION AND PRAYER FOR RELIEF Wherefore, Petitioner Ariel Gomez, though his attorneys, moves this court to consider the prejudicial impact of each of above-stated deprivations of his constitutional rights singly, or in combination with one another. Accordingly, Ariel Gomez respectfully requests the following relief: A. Outright reversal of his conviction; 13. Vacation of his conviction followed by a new trial; or C. A hearing in which proof mayr be offered concerning the allegations contained in his petition Respecitfully Submitted, orneys for Ariel GorB/e? ussell Ainsworth Tara Thompson David Owens Theresa Kleinhaus Elliot Slosar THE EXONERATION PROJECT University of Chicago Law School 6020 South University Ave. Chicago, IL 60637 ID: 44407 VERIFICATION I, Ariel Gomez, being ?rst duly sworn on oath, state that I am the Petitioner in the above- captioned case, and that 1 have read the Amended Successive Petition for Post?Conviction Relief; and have knowledge of its contents, and that the facts stated in! his Amended Petition are true and correct to the best of my personal knowledge and belief!/ SUBSCRIBED and SWORN to Before me this if?? date of 2014. OFFIC SEAL PETEFI UNDLE Notary_ Public - State of Illinois My Expires?? 212013 Aft/ma Notary Public