IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION PEOPLE OF THE STATE OF ILLINOIS, Respondent V. N0. 90 CR 10007 mi Johnny Flores, Hon. Chief Judge Martin: f-jj Petitioner. 537"" "5 5x3 .. NOTICE OF FILING PROOF OF SERVICE 1.. TO: Cook County State?s Attorney?s Of?ce 2650 S. California Avenue, 111}} Floor Chicago, IL 60608 Please take notice that on September 20, 2017, or as soon thereafter as we can be heard, we will appear before the Honorable Chief Judge Martin in courtroom 101, Cook County Circuit Court, 2600 S. California Ave, Chicago, IL, and then and there present the attached Amended Successive Post-Conviction Petition, a copy of which is hereby served on you. 'tted, Attorney'for Petitioner Theresa Kleinhaus Russell Ainsworth The Exoneration Project University of Chicago Law School 6020 S. University Ave. Chicago, IL 60637 IV Attorney No. 44407 SEP 1 2 Attorneys for Petitioner due: ?ll-32a IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION PEOPLE OF THE STATE OF ILLINOIS, Respondent V. 3 No. 90 CR 10007 Johnny Flores, Petitioner. AMENDED SUCCESSIVE POST-CONVICTION PETITION Russell Ainsworth Theresa Kleinhaus The Exoneration Project University of Chicago Law School 6020 S. University Ave. Chicago, IL 60637 Attorney No. 44407 Attorneys for Petitioner TABLE OF CONTENTS INTRODUCTION 1 PROCEDURAL HISTORY 5 EVIDENCE OF RECORD 6 Evidence Gathered the Night Of the Murder 6 Guevara Claims He Received an Anonymous Tip 9 The Suspect Line-Ups 10 Mr. Flores is Convicted at Trial 11 A. New Evidence Regarding Detective Guevara?s Pattern and Practice of Intimidating, Manipulating, and Coercion of Witnesses and Suspects 14 I . Manipulation of Eyewitnesses 14 2. Guevara ?3 Use of orce 22 B. New Evidence About Thurmound?s Identification Undermines Con?dence in the Verdict 28 CLAIM I: ACTUAL INNOCENCE 31 CLAIM II: DUE AND PRACTICE AND 14TH CONSTITUTION ARTICLE 1, SECTION CONSTITUTION 33 CLAIM DUE v. Mmyland VIOLATION 5TH AND 14"? CONSTITUTION ARTICLE 1, SECTION CONSTITUTION 36 CLAIM IV: FUNDAMENTAL CUMULATIVE ERROR 38 CONCLUSION AND PRAYER FOR RELIEF 38 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION PEOPLE OF THE STATE OF ILLINOIS, Respondent 3 v. i No. 90 CR 10007 Johnny Flores, Petitioner PETITIONER JOHNNY AMENDED SUCCESSIVE POST-CONVICTION PETITION Now Comes Petitioner, JOHNNY FLORES, 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 5/ 122?1 et seq. In support of thereof Mr. Flores, alleges and states as follows: INTRODUCTION 1. Johnny Flores was convicted for a murder he did not commit. Since the very ?rst time he was questioned about the murder of Jeffrey Rhodes until today, Johnny Flores has maintained his innocence. 2. The sum total of the evidence against Mr. Flores come from a single eyewitness, who was intoxicated at the time of the murder, who made the identi?cation four months after the crime with assistance from the now-disgraced Chicago Police Department detective, Reynaldo Guevara. 3. Sixteen years ago, this court denied Petitioner?s post-conviction petition explaining, ?Petitioner has failed to show by clear and convincing evidence that anything improper was done by any police of?cer who investigated this case. . .Petitioner has not demonstrated by clear and convincing evidence that the methods and procedures used by the o?icers who investigated his case were improper.? 4. Petitioner now has just such evidence. At a deposition, former Chicago Police Department Detective Reynaido Guevara?the main Detective who investigated the crime, testified against Flores at his trial, and secured his conviction?provided the following responses while under oath in a civil proceeding: Q: Isn't it true that you framed Johnny Flores in conspiracy with Officers Paulnitsky and Villareal? A. On the advice of my attorney, I assert my Fifth Amendment rights. Q. Isn?t it true you fabricated evidence, including falsifying police reports in connection with the Rhodes investigation? A. On the advice of my attorney, I assert my Fifth Amendment rights. Q. Isn't it true you withheld exculpatory evidence from prosecutors and their attorneys in the Rhodes investigation? A. On the advice of my attorney, I assert my Fifth Amendment rights. Q. Isn't it true you manipulated witness identi?cation and live line-ups during the Rhodes investigation? A. On the advice of my attorney, I assert my Fifth Amendment rights. Q. Sir, are you asserting your Fifth Amendment right not to incriminate yourself in response to any questions regarding the Johnny Flores investigation the Rhodes investigation? [Detective Guevara?s Attorney]: You can answer that. THE WITNESS: Yes. gag Exhibit 1, Transcript of Guevara Deposition at 443 -449. 5. Mr. Flores has obtained overwhelming evidence demonstrating Detective Guevara?s pattern and practice of attempting to intimidate, pressure, and even coerce witness 2 testimony while simultaneously suppressing exculpatory information provided by witnesses. Detective Guevara has been accused of misconduct in over 100 cases. He has repeatedly asserted his Fifth Amendment rights so as not to incriminate himself. 3% Exhibit 1, Transcript of Guevara Deposition; Exhibit 2, Tr. of Proceedings, People v. Solache and Reyes, 98 CR 01244; gee Exhibit 3, Tr. of Proceedings, People v. Montanez and Serrano, 93 CR 18173. The Illinois Appellate Court has explained that ?any allegation that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at bar were similarly coerced.? Reyes, 369 Ill. App.3d at 21. People v. Montonez,2016 IL App 133726 (lSt District) at 1134 (disturbing pattern of witness coercion in Guevara cases was relevant to post-conviction proceedings where Guevara in?uenced eyewitnesses). . In 2009, Detective Guevara was found civilly liable in Johnson v. Guevara, 05?01042 (N .D. 111. 2005), for framing an innocent man by coercing witnesses into providing false identi?cations. ?g Exhibit 4, 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 suf?cient to meet the ?cause and prejudice? standard for successive petitions, and that it would likely meet the actual innocence standard as well. ?g People v. Almodovar, 2013 IL App (lst) 101476, at 62-79, attached hereto as Exhibit 5. . The evidence against Mr. Flores has always been tenuous. On November 22, l989, Jeffrey Rhodes was killed. The only witness, Scott Thurmond, had been drinking that night, was confused about the location of the shooting, and could offer only a generic description of the assailant. 8. 10. 11. 12. For four months, the case remained unsolved and the investigating detectives obtained no new information. Then on March 29, 1990, new detectives were assigned, including Detective Roland Paulnitsky. Detective Paulnitsky sought the help of Detective Guevara (at that time working under the title ?gang crimes specialist?). Within hours, Detective Guevara claimed that unidenti?ed ?informants? told him that the crime was committed by Johnny Fiores. As a result, over four months after the crime, the key eyewitness, Scott Thurmond, was shown Flores? photo, along with two line-ups organized by Detective Guevara, until he ultimately identi?ed Flores as the shooter. Dr. Deryn Strange, an expert in the ?eld of eyewitness identi?cations, has since explained that several factors vastly diminished Mr. Thurmond?s ability to perceive and recall the shooting. According to her study of the matter, which was unavailable at the time of Mr. Flores?s trial, there is less than a 7% chance that Mr. Thurmond?s identi?cation is reliable. Further, Guevara?s refusal to answer questions about Mr. Flores? case on grounds that truthful responses could subject him to criminal liability, permits the inference that Guevara committed a crime when he procured an identi?cation of Mr. Flores from Scott Thurmond. People v. Whirl, 2015 IL 111483, W106-107. Because the newly discovered evidence in this case undermines con?dence in the verdict, Johnny Flores? conviction should be set aside or, at the very least, a new trial ordered. l3. 14. 15. .16. 17. PROCEDURAL HISTORY On December 19, 1990, Johnny Flores was convicted of ?rst-degree murder. On January 17, 1991, the court denied petitioner?s motion for a new trial and sentenced him to 40 years in the Illinois Department of Corrections. On November 5, 1993, the First District Illinois Appellate Court af?rmed the conviction and held that although the prosecutor made certain improper statements and questions during Mr. Flores? trial, those statements were not plain error or reversible error; that Detective Guevara?s testimony did not constitute inadmissible hearsay in violation of the Sixth Amendment right to confrontation; and that the trial court?s ruling on Petitioner?s motion to suppress was not manifestly erroneous. The Illinois Supreme Court denied Mr. Flores? petition for leave to appeal the appellate court?s decision. On August 17, 2001, Mr. Flores ?led a pro se post-conviction petition. In the pro se petition, Mr. Flores raised the following claims: 1) trial counsel?s failure to fully investigate the multiple offender theory constituted ineffective assistance; 2) the detectives conducted a suggestive line-up; 3) the state?s main eyewitness was intoxicated and confused about the location of the crime; 4) the conviction of the Gang Crimes Unit Officer Joseph Miedzianowski on federal charges impugned the credibility of the unit; 5) Detective Paulnitsky?s involvement in the wrongful conviction of Miguel Castillo calls into question his routine police practices. On September 28, 2001, the Court rejected Mr. Flores? petition as untimely and because all issues raised by Mr. Flores, besides Mr. Miedzianowski?s conviction, were barred by res udicata because they were raised or could have been raised at Mr. Flores? trial. The 18. 19. 20. 21. 22. 23. Court found that the new evidence of Miedzianowski?s conviction was not material or conclusive to the outcome of Mr. Flores? case. EVIDENCE OF RECORD Evidence Gathered the Night of the Murder On November 22, 1989, Scott Thurmond was visiting his friend Jeffrey Rhodes. Mr. Thurmond was drunk. R. at 248:11-16. The two young men left Mr. Rhodes? home to buy marijuana nearby. R. 117 10?17. It was dark outside and Mr. Thurmond was carrying a knife. R. 118222-24, 130: 19-22. According to Mr. Thurmond, as he and Mr. Rhodes were walking north on the east side of Central Park Avenue approaching the intersection of Shakespeare and Central Park, Thurmond observed a man with two women in the street crossing Central Park Avenue. R. 120:6-10; 17-19. The man said ?Disciple Love,? to the men from behind them and Mr. Rhodes responded ?Fuck you? and Rhodes said ?we ain?t about nothing.? R. 124:23- 24, 125113-24 The man ?red two shots and turned and ran away with the two women. R. 12724-5. The entire encounter from when Thurmond observed the man cross the street until the shooter turned to run was approximately 30 seconds. R. 127221-128: 1. For a portion of the encounter, the shooter was facing away from R. 11926-128z4. The assailant ran in one direction and Mr. Rhodes and Mr. Thurmond ran down Shakespeare to Hamlin and on to Hamlin and Fullerton. R. 128:11-24. At Hamlin and Fullerton, Jeff Rhodes fell to the ground. Mr. Thurmond opened Rhodes?s jacket and observed that Rhodes was injured. R. 129:1?10. Mr. Thurmond then went 24. 25. 26. 27. 28. inside a nearby bar, La Rosita, screamed ?Spik motherfucker just shot my friendl?, and then used a phone to try to call the police. R. 245:13-19, 24623-2472, 25428-14. The owner of the bar smelled alcohol on Mr. Thurmond and believed he was drunk. R. 247: 13-248: 16. The bar owner asked Mr. Thurmond to leave the establishment, walked him to the door and con?scated a knife from Thurmond because Thurmond seemed ?mentally disturbed.? R. 249:3-6; R. 24927-8; R. 256:8-10. Of?cers were called to the scene of the restaurant and interviewed Mr. Thurmond. R. 98:15-18; 100:20-21. Immediately after the murder, detectives asked Thurmond to describe the perpetrator. The only description Thurrnond could give at the time was that the assailant was about his (Thurmond?s) height and weight, wearing blue jeans and a hooded jacket, and had black hair and ?a little mustache.? R. l32:20-l34:1. The supplemental police report indicates that the suspect was White Hispanic. Exhibit 6 (Nov. 22 Supp at 2). Mr. Thurmond was White. (1d. at 3). Thurmond?s ability to perceive and recall features of the gunman that evening was impacted by several factors. The entire encounter with the assailant lasted only a short while, approximately 30 seconds, reducing the amount of time in which Thurmond could observe and memorize the perpetrator?s appearance. His observation occurred at night, reducing the available light for an accurate picture of the suspect, and the gunman was facing away from Mr. Thurmond for a portion of that time, reducing the time available to Thurmond to see his face. R. R. 119:6-128z4. In addition, Thurmond?s attention was necessarily divided in that 30 seconds, he had to divide his attention between the gunman, the gunman?s two companions, and the gun itself, further reducing the time 33. 34. 35. 36. 37. 38. Over the next four months, the case went cold. The police did not document any activity in the investigation from November 24, 1989 to March 29, 1990. Guevara Claims He Received an Anonymous Tip On March 29, 1990, Detective Paulnitsky was assigned to the ?Follow-Up? Investigation with regard to the Rhodes murder. Exhibit 9, Apr. 4, 1990 Supp. Report, at 2. Detective Paulnitsky spoke with Detective Guevara, who claimed that unidenti?ed informants stated that the crime was committed by Johnny Flores. R. 202. On that same date, Paulnitsky obtained a photo of Johnny Flores and contacted Scott Thurmond. R. 204:18-21; 144:21-145z7. Because more than four months had passed since he saw the gunman, Thurmond?s ability to recall features of the assailant had declined signi?cantly and his chance at an accurate identi?cation was a mere 7% or less before considering other inhibiting factors like nighttime viewing, distance, stress, weapon?focus, or cross-racial identi?cation. ?g Exhibit 7, Strange Report, at 10-11. Yet, Paultnitsky presented Thurmond with photos which police clearly believed contained a depiction of the murderer, and Thurmond selected a photo of Johnny Flores. R. 204:18-21; 144:21?145z7. On March 31, 1990, the detectives located Mr. Flores, told him of the allegations against him, and he voluntarily accompanied them to the police station. R. 212:20?24; 226: 15- 20. 39. 40. 41. 42. The Suspect Line-Ups On March 31, 1990, Detectives Guevara and Pauinitsky created a line?up of suspects for Thurmond to view. R. 21129-15; ?g Exhibit March 31 Line Up Report. The only person in this line-up who had been in the photo array was Mr. Flores. R. 17320-1742. It is unclear whether Scott Thurmond even viewed what is now considered the ??rst line up.? During the preliminary hearing Detective Paulnitsky testi?ed that, ?as [Paulnitsky] pulled the drape open ['l?hurrnond] passed out.? R. 32: 12-19. Pauinitsky testi?ed at trial that Thurmond?s ?eyes started rolling back, he started in a falling back motion. . . [and] was ?very incoherent? and ?distraught.? R. 216:6-11. Given Thurmond?s unconscious state, the ?rst lineup concluded without an identi?cation. R. 2 1 6: 1 2-14 Yet, Thurmond testi?ed that he saw the ?rst line-up through a Window and as participants in the line-up were stepping forward, including petitioner, Thurmond began crying and went into another room. R. 149:15-150zl. 43. No photograph of the ?rst line up was ever taken. R. 226:3?5. 44. A few days later, on April 3, 1990, Thurmond stated over the phone that the person in position number four, the line-up position of Johnny Flores, was the shooter. R. 218:23- - 219:4. 45. 46. Mr. Flores was again advised of the allegations against him and he again agreed to accompany the detectives to the police station for a line-up. R. 229:14?230:4. On April 3, 1990, the second line-up was conducted. 154:11-16. Mr. Flores was the only individual present in both line-ups. Exhibit 10-B, April 3 Line Up Report. Having 10 29. 30. 31. 32. available to Thurmond to View the perpetrator?s face. What is more, Mr. Thurmond had been drinking that evening (R. at 248:1 1-16), and the sheer stress of the event would have impacted his ability to retain an accurate perception of the assailant. (Exhibit 7, Strange Report, at Thurmond?s ability to identify the assailant was also impacted by the fact that Thurmond was trying to make a cross-racial identi?cation (he was white and the assailant was Hispanic), and cross-racial identi?cations are generally less reliable. Id. at 9-10. Mr. Thurrnond initially told responding of?cers that the shooting occurred at 3759 W. Fullerton. Exhibit 8, Evidence Report. Of?cers responded to that scene, but did not recover any physical evidence there. The police then brought Mr. Thurmond to the police station, where they showed him photographs of possible suspects. He did not select anyone from the photographs. R. 1 34: 19-23 . Mr. Thurmond then told the of?cers that he was not sure that he had provided the correct location for the shooting. R. 135. The of?cers drove him around the area until he claimed that the homicide occurred at 3600 W. Shakespeare. R. 136: 3-22. That location is more than half a mile from other 3749 W. Fullerton location Mr. Thurmond initially reported. No physical evidence was located at 3600 W. Shakespeare either. Exhibit 8, Evidence Report. Mr. Thurmond returned to the police station to View more photos, but still could not make an identi?cation. R. 137:1-5. There is no record of which photos he observed the night of the shooting. 47. 48. seen Flores in the photo and the ?rst line-up, Scott Thurmond selected Flores from the second line-up. R. 155:13~22. Mr. Flores is Convicted at Trial No physical evidence links Mr. Flores to the crime. Mr. Flores has always asserted his innocence. All of the evidence presented against Mr. Flores at trial stemmed from Detective Guevara?s involvement. Detective Guevara was the ?rst person to learn from unidenti?ed informants that Flores was allegedly the shooter and he participated in both line-ups. R. 202. 49. No expert testimony regarding eyewitness identi?cations was presented. 50. 51. 52. 53. After two days of trial, the jury found Mr. Flores guilty. R. 336223?24. The judge later sentenced him to 40 years in IDOC. R. 352. Substantial new evidence has surfaced that Detective Reynaldo Guevara has a pattern and practice of investigative misconduct. The allegations come from a multitude of sources, including sworn testimony of former Chicago Police Of?cers; reports generated by the Federal Bureau of investigation citizen? 5 sworn af?davits, sworn deposition or trial testimony, and complaints ?led with the Of?ce of Professional Standards and civil rights lawsuits. Many of these allegations against Detective Guevara, as detailed more speci?cally below, have been sustained by judicial or administrative bodies. Most recently, documents generated from a city commissioned report led by Scott Lassar from the law ?rm of Sidley Austin, LLP (?Lassar Reports?) provided evidence substantiating many of the citizen complaints about Detective Guevara?s misconduct. The 11 City?s own investigation concluded that at least six men were wrongfully convicted. Those individuals are Roberto Almodovar, Robert Bouto, Jose Montanez, Armando Serrano, Arturo Reyes, and Gabriel Solache.E See Group Exhibit 1 1.2 54. In at least two cases (J aeques Rivera and Juan Johnson) Where Detective Guevara played a substantial investigative role, convicted individuals have already have been exonerated. Jacques Rivera has since been certi?ed innocent by the Cook County Circuit Court and a civil rights complaint naming Detective Guevara as the lead Defendant is pending. Juan Johnson?s conviction was vacated, he was acquitted at a re-trial, and a federal jury later awarded him $21 million in light of Detective Guevara?s conduct of coercing eyewitnesses against him.3 55. For his part, Detective Guevara has repeatedly asserted the Fifth Amendment when asked questions about allegations that he manipulated dozens of witnesses to provide false identi?cations and used force in an effort to coerce confessions. 56. In December 2013, Detective Guevara provided deposition testimony in Rivera v. Guevara, 12 CV 04428 (N .D. 111. 2012), a civil suit alleging misconduct by Detective 1 If These Men Aren ?t Guilty, Why Can They Go ree?, BuzzFeed News, Oct. 5, 2015 (explaining that a city commissioned written report headed by former US. Attorney Scott Lassar has concluded that four men alleging misconduct of Detective Guevara are ?most likely innocent?) available at 2 The Lassar Report on Montanez-Serrano documented a striking resemblance to the series of events in Petitioner?s case. in the Montanez?Serrano case, months alter the case had gone cold, the criminal history reports of Montanez, Serrano, and Pacheco suddenly appeared in the homicide file with no indication of which CPD personnel had pulled the reports. Exhibit 11, Montanez-Serrano Report. at 5-6. Shortly thereafter, Guevara?s partner, detective Haivorsen, began reporting that con?dential informants were reporting Montanez, Serrano, and Pacheco were allegedly involved in the crime. The investigation of Montanez and Serrano followed. In Petitioner?s case, the homicide investigation had gone cold for months, but when Guevara got involved he immediately and conveniently heard from con?dential sources the Petitioner was allegedly involved and the investigation of Petitioner immediately followed. 3 See Juan Johnson, National Registry of Exonerations, 33 1 . 12 57. 58. 59. 60. Guevara. S_e? Exhibit 12 (complaint in Rivera v. Guevara). 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. m. At his deposition in the Rivera case, in addition to invoking his Fifth Amendment right against self-incrimination with regard to Johnny Flores? case, Detective Guevara also invoked his Fifth Amendment right against self-incrimination with regard to 32 other instances of misconduct. See generally Exhibit 1. In two other recent proceedings, Detective Guevara also 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. Exhibit 2 (Detective Guevara?s testimony in Peeple v. Solache and Reyes, 98 CR 01244), Exhibit 3 (Detective Guevara?s testimony in People v. Montanez and Serrano, 93 CR 18173). As the Illinois Appellate Court recently explained, Guevara?s repeated invocation of his Fifth Amendment Rights may appropriately give rise to an adverse inference that, had questions been answered truthfully, the answers would have been damaging to Guevara?s position. People v. Serrano, 2016 IL App. (lst) 133493 at 1130-31 (reversing the trial court?s directed ?nding in favor of the State because of the ample evidence of Detective Guevara?s history of misconduct). Such adverse inferences are well-established in civii proceedings. The Illinois Appellate Court has directed fact-?nders to draw a ?signi?cant and negative? inference where a detective invokes his Fifth Amendment Rights with regard to his investigative activities. 13 61. People v. Whirl, 2015 IL 111483, 1111106407. Federal courts have also found such inferences permissible and persuasive. Baxter v. Polmigiano, 425 US. 308, 318 (1976); Harris v. City of Chicago, 266 F.3d 750, 753 (7th Cir. 2001); Seguban, 54 F.3d at 389- 90. And, such an ?adverse inference may be given signi?cant weight because silence when one would be expected to speak is a powerful persuader.? LiButtz' v. United States, 178 F.3d 114, 120 (2d Cir. 1999). Post?conviction proceedings are civil in nature. The Post-Conviction Hearing Act establishes ?an original and independent remedy by a proceeding, civil in nature.? People v. Scott, 194 Ill. 2d 268, 280 (2000). See also People v. Cruz 2013 IL 113399, 11 32 (Freeman, ., concurring) (stating that ?once the State enters the [post?conviction ease], the matter is to proceed as it would in any adversarial civil case?). See also 725 ILCS 5/ 122-5 (West 2013) (providing that in post?conviction proceedings, the circuit court may make orders relating to pleadings ?as shall be appropriate, just and reasonable as is generally provided in civil cases?). Accordingly, as with all civil proceedings in Illinois, the Illinois Rules of Civil Procedure govern these proceedings and an adverse inference may be drawn from Detective Guevara?s invocation of his Fifth Amendment Rights. New Evidence Regarding Detective Guevara?s Pattern and Practice of Intimidating, Manipulating, and Coercion of Witnesses and Suspects 1. Manipulation of Eyewitnesses 62. New evidence has revealed that Detective Guevara, repeatedly and improperly in?uenced eyewitnesses in murder cases. The following is not an exhaustive list, but provides a number of documented allegations of that misconduct. For each individual about whom 14 Detective Guevara refused to answer questions, Mr. Flores has placed an asterisk next to his or her name to indicate that fact.4 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 of the shooter. b. Based on the information provided, Detective Dorsch created a photo array for the juveniles to attempt to identify the shooter. While the ?rst juvenile was viewing the photo array, and before he identi?ed any of the photographs, Guevara pointed to the suspect?s photo and told the juvenile ?that?s him.? The 4 In court, Detective Guevara refused to testify about his interactions with: Bill Dorsch (Exhibit 3 at 45-50), Francisco Vicente (Exhibit 3 at 22-24, 3 l-3 8, 41, 44, 45, 68-70), Timothy Rankins (Exhibit 3 at 24, 25, 43), Anna Flores (Exhibit 3 at 26, 54, 55; Exhibit 2 at 30-32), Graciela Flores (Exhibit 3 at 26, 54, 55; Exhibit 2 at 30, 3 1), David Velazquez (Exhibit 3 at 26, 51-54; Exhibit 2 at 20-22), Efrain Sanchez (Exhibit 3 at 27, 55, 56), Julie Sanchez (Exhibit 3 at 27, 56, 57), Adolfo Frias Munoz (Exhibit 3 at 27, 28, 57, 58; Exhibit 2 at l6, 17), Jose Meiendez (Exhibit 3 at 28, 60-62; Exhibit 2 at 33, 35), Gabriel Solache (Exhibit 3 at 28, 29; Exhibit 2 at 8?11), Arturo Reyes (Exhibit 3 at 29; Exhibit 2 at 5-8, 40, 41), Virgilio Muniz (Exhibit 3 at 30, 63), Luis Figueroa (Exhibit 3 at 59; Exhibit 2 at 37-39), Angel Diaz (Exhibit 3 at 59, 60; Exhibit 2 at 38, 39, 41), Wilfredo Rosario (Exhibit 3 at 64, 65), Xavier Arcos (Exhibit 3 at 65; Exhibit 2 at 27, 28), Gloria Ortiz Bordoy (Exhibit 3 at 65, 66), Robert Ruiz (Exhibit 3 at 67; Exhibit 2 at 24-26), Leshurn Hunt (Exhibit 2 at 14, 15), Adrian Duta (Exhibit 2 at 15, 16), Voytek Dembski (Exhibit 2 at 18, 19), Daniel Pena (Exhibit 2 at 22-24), Annie Turner (Exhibit 2 at 28, 29), Samuel Perez (Exhibit 2 at 32-34), Juan Johnson (Exhibit 2 at 33, 34), and Thomas Sierra (Exhibit 2 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. Ex. 2. 15 juvenile then agreed with Guevara, saying that was the person who committed the shooting. Exhibit 13. Dorsch then directed Guevara to leave the room and had the other juveniie view the same photo array, and he was unable to make any identi?cation. m. . Based on the ?rst juvenile?s identi?cation, the suspect was charged with murder. Subsequently, Dorsch spoke to the two juveniles without Guevara being present. The juveniles admitted that they had been paid to falsely claim that the suspect was the person responsible for the shooting. After prosecutors spoke to the two juveniles, the suspect was released. Guevara?s activities have drawn the interest of federal law enforcement officers. In 2001, 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 out of trouble.? According to the report, Guevara also took bribes to alter both positive and negative lineups 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. gr; Exhibit 14 at 13-14. 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. Unsurprisingly, Perez l6 subsequently falsely identi?ed Johnson as a murderer. Exhibit 15. . In 1989, Detective Guevara also coerced Salvador Ortiz into making a false identi?cation of Juan Johnson, which he later recanted. Exhibit 16. . In 1989, 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 himself he charged with the murder Exhibit 17. In 1989, Detective Guevara coerced Virgilio Calderon Muniz (unrelated to Virgilio Muniz, described in the above paragraph) into making a false identi?cation by telling him who to identify and making a veiled threat as to what would happen if he did not. ?e Exhibit 18. In 1991, 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 a jury, the appellate court overturned the conviction based on the lack of suf?cient evidence. gee Exhibit 19. 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 17 Area 5, and threatening to charge him with crimes if he did not talk. All of the false details of Velazquez?s statement were provided by Guevara. Exhibit 20. 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 21. . 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. Guevara then provided Francisco Vicente with the details of the crime. 553 Exhibit 22. . 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 testi?ed falsely against the men in the Grand nry. Exhibit 23. . 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. SE Exhibit 24. 18 p. 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 Guevarathat he did not do it, Guevara forced Davila to participate in a lineup in which two witnesses identi?ed Davilaas 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. S_e? Exhibit 25. In 1991, Detective Guevara told Efrain and Julio Sanchez to pick David Colon out of a 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 26. In 1995, Detective Guevara coerced Evelyn Diaz* into making a false identi?cation by threatening Diaz that if she did not identify Luis Serrano as the shooter, her children would be taken away by the Department of Children and Family Services. Sp; Exhibit 27. In 1995, 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 28. 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 han saying that he 19 ?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 29. . In 1995, 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. 5% Exhibit 30. . 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 identified Sierra, but recanted his identi?cation at trial. S_ee_ Exhibit 31. . In 1996, Detective Guevara coerced Maria Rivera* into making a false identi?cation of a man in a lineup by unzipping his pants, and propositioning her. Rivera later told the prosecutor that she had falsely identi?ed an individual in a lineup at Guevara?s direction. The prosecution later abandoned murder charges against the individual whom Rivera falsely identi?ed in the lineup. ?g Exhibit 32. . 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 20 to say in his statement. Ruiz ?nally 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 the judge 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 Gnevara?s nephew. ?e Exhibit 33. In 1998, 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 2011, 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 dropped all charges against Rivera and he was granted a Certi?cate of Innocence. Exhibit 34. 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 ordered all witnesses excluded from the courtroom to prevent collusion among the witnesses. Exhibit 35. . In 2011, 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. Seg Exhibit 36. 21 2. Guevara ?5 Use of Force 63. In addition to using improper suggestion, manipulation, and other forms of intimidation, Detective Guevara has been alleged to have used force in many instances to get either a suspect or a client to make a statement or provide a bogus identi?cation. Previously unknown examples include: a. In 1982, Detective Guevara and another of?cer 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 37. b. 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 of?cers terri?ed Lloyd, her brother, and two children, and left the home in shambles. Lloyd ?led a complaint with the Office of Professional Standards the next day. Exhibit 38. c. In 1983, Detective Guevara and other officers forcibly removed Warn 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. 22 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. S_ee_ Exhibit 39. In 1984, Detective Guevara and other of?cers physically assaulted Graciela Flores* and her 13-year old sister Anna during a search of their 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 hospital. Exhibit 40. 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 ?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. .SE Exhibit 41. 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 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 hospital for lacerations to the head. After an investigation into the incident, OPS found that Guevara had lied about 23 the incident and recommended that Guevara be suspended for two days. SEQ Exhibit 42. . In 1986, Detective Guevara and two other of?cers coerced a confession from Daniel Perla" by beating him about the face and ribs with their hands and about the groin and thighs with ?ashlights 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? nose. Family members corroborated Pena?s claim that he had been beaten while in police custody. 51% Exhibit 43. . 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 of Guevara hit Warren in the face with a closed ?st and then forced him down into the front seat of his car and began to choke him. Two eyewitnesses con?rmed that Guevara initiated the beating. In response to this incident, Warren sought medical treatment and ?led a compiaint 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. ?e_e Exhibit 44. 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 45. 24 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 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. gag Exhibit 46. . in 1991, Detective Guevara coerced a false confession from Daniel Rodriguez through the use of threats and intimidation. While on 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 47. in 1992, Detective Guevara engaged in misconduct when he interrogated Jacqueline Montanez* without a youth of?cer 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 48. . In 1993, Detective Guevara arrested ?fteen year old Eliezar 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. Exhibit 49. 25 n. In 1993, Detective Guevara used physical force and threats to coerce a false confession from Adolfo Bias-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 room, Frias-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. Frias-Munoz, who did not speak English, agreed to give a statement to an assistant state?s attorney. Frias-Munoz spoke in Spanish and Guevara translated the statement so that the prosecutor could write the statement in English. Frias- Munoz then signed a statement he could not read. Exhibit 50. o. in 1994, Detective Guevara, after 14 hours of interrogation, coerced a confession from Adrian Data* 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 Data?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. Duta complained to his father of being struck in the head and stomach by Guevara. Exhibit 51. p. In 1995, Detective Guevara and his partner Detective Ernest Halvorsen coerced a confession from 17-year-old Santos Flores after handcuf?ng 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 26 the light of day. Flores eventually gave a 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. gee Exhibit 52. . 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 noti?cation 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. _S_ee Exhibit 53. In 1998, Detective Guevara repeatedly hit Rosauro Mejia in an attempt to coerce a confession from him. Rosauro never confessed and was ?nally released after being held in custody for three days. Exhibit 54. 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 55. In 1998, Detective Guevara repeatedly threatened and beat Arturo Reyes* in an attempt to unconstitutionally coerce Reyes intogiving an incriminating statement. After two days of isolation and interrogation, Reyes provided a false statement. SE Exhibit 56. . 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. S_ee_ Exhibit 57. The City of 27 Chicago eventually determined that Solache and Reyes were abused during their interrogations. Exhibit ll. 64. The other detective involved in Petitioner?s case, Detective Paulnitksy, has also been 65. accused of substantial misconduct in several federal civil rights cases alleging that Detective Paulnitsky manipulated witness identi?cations in photo arrays and line- ups, fabricated evidence including police reports and confessions, provided perjured testimony in grand jury and trial proceedings, and coerced false confessions using physical violence. Delgadillo v. Paulnitksy, Case No. 05-c-3448 (N .D. 111. 2005); Godirzez v. Paulm'tsky, Case No. 04-02510 (ND. 111. 2004); Walton v. Hillard, Case No. 04-C-7718 (ND. 111. 2004); Castillo v. Zuniga, 01-0-0616 (ND. 111 2001); Carrie V. City of Chicago, Case No. 97-cv-0454l (ND. Ill. 1997); Vargas v. Doe, Case No. 1:96-cv? 01104 (N .D. 111 1996); Washington v. Paulm?tsky, Case No 92-07691 (1992 ND. 111.). In addition to Detective Paulnitksy?s own history of misconduct, his consistent association with Detective Guevara may render his testimony less reliable. As the Appellate Court recently observed in Serrano, the testimony of of?cers who worked with Guevara consistently over the course of several years may be ?consigned to oblivion? if the allegations against Guevara are found to be credible. Serrano at 1136. New Evidence About Thurmond?s Identi?cation Undermines Confidence in the Verdict Dr. Deryn Strange, a leading expert in the ?eld of memory and has examined the eyewitness identi?cation in Petitioner?s case and concluded that numerous problems in perception and memory call into question the reliability of Thurmond?s identification. ?e Exhibit 7, Strange Report. 28 66. 67. 68. 69. 70. This expert testimony was not presented at Mr. Flores?s trial. Recently, however, the Illinois Supreme Court has recognized that research concerning eyewitness identi?cation is ?well-settled [and] well supported? and expert testimony regarding eyewitness identi?cations is admissible and relevant. People v. Lerma, 2016 IL 118496 115, 1125. in Petitioner?s case, such testimony is at the apex of its relevance because eyewitness identi?cation is the sole evidence against him?no physical evidence or confession linked Petitioner to the crime. As the Illinois Supreme Court has explained, in such cases there is ?no question? that expert testimony is both relevant and appropriate. Id. at 1126. Such expert testimony may include a discussion of all the factors which can inhibit proper eyewitness identi?cation including: nighttime viewing, a tendency of witnesses to over-estimate timefrarnes, the presence of a weapon, the stress of the event, eyewitness dif?culty with cross-racial identi?cations, the passage of time between the event and identi?cation (also called the ?forgetting suggestive police identi?cation procedures, and exposure to post-event information. Id. at 118, 14. Petitioner?s expert addresses precisely such topics in her report. Speci?cally, Dr. Strange explains that Mr. Thurmond?s identi?cation is much less reliable because he viewed the assailant under poor conditions: at night, under street lighting, and for a portion of the encounter the assailant was facing away from Thurmond (Exhibit 7, Strange Report, at Thurmond viewed the assailant for a very short period of time and likely over? estimated the time that he viewed the assailant (Id. at likely paid less attention to the defendant?s appearance because of the weapon present (Id. at was less able to retain an accurate memory of the perpetrator because of the extreme stress inherent in a violent 29 71. 72. 73. encounter (Id. at was impaired by alcohol which would further inhibit a reliable identi?cation (Id. and would have more dif?culty identifying a Hispanic perpetrator because of inherent dif?culties in cross-racial identi?cation (Id. at 9?10). Dr. Strange also explains that Mr. Thurmond?s memory was likely impaired by the ?forgetting curve.? Id. at 11. Because eyewitnesses rapidly lose memory as time passes after an event, Mr. Thurmond?s identi?cation of Petitioner after 127 days is unreliable. Id. In fact, there is less than a 7% chance that Mr. Thurmond?s identi?cation was accurate based on the ?forgetting curve? alone and before one even takes into account all of the other factors which inhibited his identi?cation. Id. Dr. Strange further explains how suggestive lineup procedures and post-event information could have contaminated Thurmond?s memory. Id. at 11-16. For example, four months after his friend was killed and after Thurmond had viewed photos in ?gang books,? a detective called him and showed up to show him photos. Id. at 11, 16. That sense of urgency strongly implied to Mr. Thurmond that the detectives believed they had found their suspect and that Mr. Thurmond should make a selection from the array. Id. Dr. Strange concluded that all of these factors taken together render Mr. Thurmond?s identi?cation unreliable. Id. at 18-19. Put differently, based on the time separation between the event and Thurmond?s identi?cation, he had at best a 7% chance of accuracy and all of the other factors discussed-"poor lighting, insuf?cient time to View the assailant, weapon focus, stress, intoxication, cross-racial identi?cation, suggestive line- ups, and post-event information?greatly reduced the probability of a reliable identi?cation to a ?gure much less than 30 74. 75. CLAIM INNOCENCE This Court may grant Petitioner an evidentiary hearing if he can ?present new, material, noncumulative evidence that is so conclusive it would probably change the result on retrial.? People v. Coleman, 2013 IL 113307 at 1] 96 (2013) (citing Washington, 171 Ill.2d at 489). New ?means the evidence was discovered after trial and could not have been discovered earlier through the exercise of due diligence.? 1d. Material evidence is anything ?relevant and probative of the petitioner?s innocence? and noncurnulative means that the evidence ?adds to what the jury heard.? Id. To be conclusive, ?evidence need not be completely dispositive of an issue to be likely to change the result upon retrial.? Id. at 96-97. Instead, the appropriate measure is whether the new evidence, when considered together with the trial evidence, ?would probably lead to a different result.? Id. As set forth above, a negative inference can be drawn from Detective Guevara? invocation of his Fifth Amendment Rights. Evidence that Detective Guevara?s activity in Mr. Flores? case violated the law is new information not known at the trial and which could not have been discovered earlier. Certainly, evidence that the detectives fabricated or manipulated evidence against Mr. Flores to create a false identi?cation is relevant and probative of his innocence. Indeed, in a case where the only evidence against him was the identi?cation, detectives? manipulation of that identi?cation could scarcely be more probative of his innocence. 76. This evidence is non-cumulative because the jury heard testimony from Guevara, Paulnitsky, and Thurmond and relied on that testimony in reaching its verdict. Knowledge that Guevara actually tainted the process from the start could change the result on retrial. 31 CLAIM AND PRACTICE 5TH AND 14TH AMENDMENTS U.S. CONSTITUTION ARTICLE 1, SECTION 2 ILLINOIS CONSTITUTION 81. The newly discovered evidence of Detective Guevara?s misconduct also supports a due process claim based on the pattern and practice of misconduct, Appellate courts have repeatedly held that newly discovered allegations of Detective Reynaldo Guevara?s investigative misconduct are cognizable under the Post-Conviction Hearing Act and warrant evidentiary hearings under the due process legal theory, even for successive petitions. See People v. Reyes, 369 Ill. App. 3d 1, 14-24 (2006) (citing Patterson, 192 Ill. 2d 93); People v. Almodovar, 2013 IL App 101476 (noting the newly?discovered allegations against Detective Guevara establish cause-and-prejudice). See also, People v. Patterson, 192 Ill. 2d 93, 145 (2000) and People v. King, 192 Ill. 2d 189, 198-99 (2000) (new evidence of police misconduct at Area 2, which did not come to light until after the defendants? trials in those cases, was suf?cient in terms of relevancy and materiality to call for relaxation of res judicato and to require evidentiary hearings on the petitioners? claims of torture); People v. Cannon, 293 Ill. App. 3d 634 (lst Dist. 1997); People v. Mitchell, 2012 IL App 100907 (1St Dist. 2014); People v. Nicholas, 2013 IL App (lst) 103202, 44; People v. Whirl, 2015 IL App (lst) 111483; People v. Tyler, 2015 IL App (lst) 123470 (courts reconsidered the voluntariness of the defendants? alleged confessions that would otherwise be barred due to the pervasive pattern of criminal conduct by police of?cers in Area 2). Courts have so held for both initial post-conviction petitions, as well as successive petitions, noting that the of?cial reports and investigations, and other sources shedding light on the scandal, satisfy the ?cause? 33 77. 78. 79. 80. As the Illinois Appellate Court explained in two other Guevara cases, if a fact-?nder had known about Detective Guevara?s history of improperly in?uencing witnesses, they might have evaluated witness testimony differently and reached a different conclusion. People v. Almodovar, 2013 IL App. 101476,1179; Serrano at 1134. The scienti?c analysis of eyewitness identi?cation is also new evidence. The Illinois Supreme Court recognized in 2016 that the past 25 years saw ?a dramatic shift in the legal landscape, as expert testimony concerning the reliability of eyewitness testimony has moved from novel and uncertain to settled and widely accepted.? Id. 11 24. Lerma, 2016 IL 118496 1124 citing People v. Enis, 564 1155 (1990). When Petitioner was convicted in 1990, the study of eyewitness identification was still developing, but now has become ?well settled, well supported, and in appropriate cases a perfectly preper subject for expert testimony.? Id. Expert testimony regarding eyewitness misidentification is also material. Where no physical evidence or confession links Petitioner to the crime, there is ?no question? that expert eyewitness testimony is ?both relevant and appropriate.? Id. at 1126. Expert testimony regarding eyewitness identi?cation is also non-cumulative. The jury in petitioner?s trial heard only from Mr. Thurmond and did not have the benefit of any expert testimony about eyewitness identi?cation. Given that Mr. Thurmond?s identi?cation was the sole piece of evidence against Petitioner, it is likely that expert testimony about that identi?cation could have changed the jury?s verdict. 32 82. 83. element for the ?cause-and-prejudice? test that applies to successive petitions. See e. g, Mitchell at ll 60; see also 725 ILCS 5/ The appellate courts have so held for both allegations of Guevara?s misconduct during suspect interrogations as well as identi?cation procedures. In so concluding, these courts have relied on many of the same allegations cited within and relied upon in paragraph 62 of this pleading. See 6. g. Reyes, 369 Ill. App. 3d at 15-17 (citing to the allegations that Guevara improperly in?uenced the identi?cation testimony of David Velaquez, Luis Figueroa, and Jose Melendez (all similarly cited in paragraph 62 of this pleading), and the allegations of Guevara?s improper and illegally coercive interrogations of Armando Serrano and Daniel Pena, and mistreatment of Melvin Warren (all similarly cited herein as well). Notably, the courts in Reyes and Almodovar so held even prior to the Lassar Reports (which substantiated that Guevara had a pattern of misconduct and concluded that at least four of Guevara?s victims were innocent), prior to the exoneration of Jacques Rivera, and prior to Detective Guevara?s repeated invocations of the Fifth. See supra at paragraph 62; see also People v. Whirl, 2015 IL App (1st) 111483, $07 (explaining that in a post-conviction proceeding, a negative inference should be drawn where a detective takes the Fifth Amendment when asked about allegations of misconduct). Substantively, a due process claim based upon newly discovered evidence of a pattern of misconduct by the investigating police of?cers is entitled to an evidentiary hearing if the evidence is of such conclusive character that it will probably change the result on retrial; (2) material to the issue, not merely cumulative; and (3) discovered since trial and of such character that the defendant in the exercise of due diligence could not have 34 87. 88. 89. Detective Guevara?s testimony at Petitioner?s trial was completely unimpeached. Armed now with Detective Guevara?s invocation of his Fifth Amendment Rights with regard to this case, Petitioner could impeach Detective Guevara?s testimony its entirety. Likewise, the knowledge that Detective Guevara?s involvement with this case was so egregious as to be criminal, a jury would likely be likely to believe that the testimony of Detective Paulnitsky and Mr. Thurmond were also tainted. Moreover, if the jury had known that Guevara not only manipulated or fabricated evidence in Mr. Flores? case, but in dozens of others as well, the jury would be less likely to believe the evidence stemming from his testimony as well, including the testimony provided by Detective Paulnitsky and Mr. Thurmond. In a strikingly similar case in New York, a petitioner was granted a new trial when he demonstrated that: i) he was initially accused of the crime because the lead detective allegedly received information from an anonymous informant identifying the petitioner; ii) the witness was then shown a photo array and line-up by that detective; and the detective was later accused of misconduct and witness manipulation in ?ve other cases. People v. Hargrove, 2014 N.Y. Slip. Op. 51935 (U). The Court found that the petitioner?s allegations ?t the same ?pattern and practice? as the other cases and therefore a new trial was warranted. Id. As in that case, Detective Guevara?s use of unidentified informants, witness manipulation, and history of misconduct warrants a new trial. CLAIM v. Maryland VIOLATION 5TH AND 14TH AMENDMENTS U.S. CONSTITUTION ARTICLE 1, SECTION 2 ILLINOIS CONSTITUTION 90. Petitioner also asserts that the State withheld evidence in violation of Brady 12. Maryland If the State had informed Petitioner of Detective Guevara?s pattern and practice of 36 84. 85. 86. discovered it earlier. Mitchell at 61 (citing People v. Orange, 195 Ill. 2d 437, 450-51 (2001)); Tyler at ll 158. The standard requires the court to determine whether the allegations undermine the credibility of the investigating of?cers to an extent that the result of a new trial would be different. See Almodovar at 1[ 69 (explaining that ?[t]he new evidence merely sought to establish a pattern and practice of abuse by Detective Guevara, which, if true, would have a severe negative impact on the credibility of Detective Guevara?s testimony that no such abuse occurred in defendants? case?); Tyler at fl 193 (citing Patterson, 192 Ill. 2d at 145) (noting that the standard requires the court ?to determine whether any of the detectives who interrogated the defendants may have participated in systemic and methodical abuse and whether those detectives? credibility at trial might have been impeached as a result?). Both the appellate court decisions in Almodovar and Reyes establish that the allegations against Detective Guevara outlined in paragraph ., of this pleadings are material and either newly discovered or could not have been discovered with due diligence. See Reyes at 18-19; Almodovar at 67?68. Again, many of these allegations mirror the ones discussed in those appellate decisions, which found that in cases from ten years after Petitioner?s (the defendants in Reyes went to trial in June 2000, and Martinez?s trial began just one year later), evidence of Detective Guevara?s misconduct that pre-dated their trials was still newly discovered. Of course, other evidence in this petition?like the Lassar Reports and Guevara?s invocation of the Fifth Amendment?long post-date Flores? trial, so could not have been discovered earlier. 35 9i. misconduct, Mr. Flores could have impeached the credibility of Detective Guevara. Detective Guevara was aware that his role in Mr. Flores? case, namely fabricating evidence and/or in?uencing the main eyewitness, and the State had a duty to furnish that information to Mr. Flores. Along those same lines, Detective Guevara was aware of his overarching pattern and practice of improperly in?uencing eyewitnesses and the State had a duty to furnish this information to Mr. Flores. See Mitchell at 71?72 (explaining that under Kyles v. Whitley, 514 US 419 (1995), knowledge by any agents of the State, such as police of?cers, is imputed to the State); People v. Wrice, N0. 82 865503, Order of January 25, 2013, at 5-6 (Clay, .), attached as Exhibit 58 (petitioner?s Brady claim that the State failed to disclose exculpatory evidence regarding systemic abuse at Area 2 Police Headquarters warrants an evidentiary hearing); People v. Smith, No. 83 769 (02), Tr. of Proceedings at 6, July 17, 2014 (Reddick., I), attached as Exhibit 59. Here, the suppressed evidence falls into two categories: i) substantive evidence that Guevara committed criminal misconduct when he spoke to alleged ?informers? who identi?ed Johnny Flores and, conducted two line-ups including Mr. Flores, and ii) impeachment evidence that Detective Guevara lied during his trial testimony against Mr. Flores. Detective Guevara?s widespread pattern was known by Detective Guevara and the Chicago Police Department, but hidden from the Defense; its exposure demands justice. 37 CLAIM ERROR 92. Petitioner re-alleges every paragraph of this petition and expressly incorporates them as if they were fully set forth herein. 93. Even if individually the errors and other matters alleged here are not found to be suf?ciently prejudicial to grant Mr. Flores post-conviction relief, the cumulative effect of all the matters alleged in this petition deprived Mr. Flores of his fundamental due process right to a fair trial. See People 12. Jackson, 205 Ill. 2d 247, 283 (2001) (?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.? Id. CONCLUSION AND PRAYER FOR RELIEF Wherefore, Johnny Flores, though his attorneys, moves this court to consider the prejudicial impact of each of the above-stated deprivations of his constitutional rights singly, or in combination with one another. Accordingly, Johnny Flores respectfully requests the following relief; A. Outright reversal of his conviction; B. Vacation of his conviction followed by a new trial; and C. A hearing in which proof may be offered concerning the allegations contained in his petition 38 39 Respectfully Subgiitted, 7 Atforneys for Johnny Flores Theresa Kleinhaus Russell Ainsworth The Exoneration Project University of Chicago Law School 6020 S. University Ave. Chicago, IL 60637 I.D.: 44407 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION PEOPLE OF THE STATE OF ILLINOIS, Respondent v. No. 90 CR 10007 Johnny Flores, Petitioner EXHIBIT LIST Exhibit Number Description 1. 10 A.) 10 B.) Rivera v. Guevara er al., No. 1:12 CV 04428, Deposition Testimony of Reynaldo Guevara, December 23, 2013 People v. Reyes Soiache, No. 98 CR 12440, Post-Conviction Testimony of Reynaldo Guevara, July 29, 2013 People v. Serrano Montanez, No. 93 CR 18173, Post-Conviction Testimony of Reynaldo Guevara, June 17, 2013 Meyerson, B., ?Record Verdict: Former Gang Member Awarded $21 Million for Wrongful Conviction?, Chicago Tribune, June 23, 2009 People v. Almoa?ovar, 2013 IL App (lst) 101476, Appellate Order CPD Supplementary Report, November 22, 1989 Expert Report of Deryn Strange, Evidence Report, November 23, 1989 CPD Supplementary Report, April 4, 1990 Line Up Report, March 31, 1990 Line Up Report, April 3, 1990 11 (GROUP) 12. 13. 14. 15. l6. 17. 18. I9. 20. 21. 22. 23. 24. 25. Sidley Austin LLP, Final Report on Roberto Almodovar Case, February 9, 2015 Sidley Austin, LLP, Guevara Investigation Armando Serrano and Jose Montanez, March 3, 2015 Sidley Austin, LLP, Guevara Investigation Robert Bouto, March 3, 2015 Sidley Austin, LLP, Guevara Investigation Gabriel Solache and Arturo Reyes, December 12, 2014 Rivera v. Guevara, 12 CV 04428, Complaint People v. Solache, 98 CR 1240-03, Post-Conviction Testimony of Bill Dorseh, February 12, 2013 FBI Report, June 23, 2001 People v. Juan Johnson, 89 CR 21806, Testimony of Samuel Perez, February 20, 2004 Johnson v. Guevara, No. 05-C-1042, Deposition Testimony of Salvador Ortiz, May 19, 2009 Af?davit of Virgilio Muniz, August 5, 1994 Af?davit Virgilio Calderon Muniz, September 8, 1999; People v. Vera, No. 8-11039, Testimony of Virgilio Calderon Muniz, Nov. 20, 1991 People v. Arcos, No. 91 CR 7432, Testimony of Wilfredo Rosario; People v. Areas, 282 Ill. App. 3d 870 (lSt Dist. 1996) People v. Daniel Rodriguez, No. 91-CR-13938, Testimony of David Velasquez, February 24, 1993 Af?davit of Carl Richmond, June 7, 2008 Af?davit of Francisco Vicente, May 26, 2004 Testimony of Timothy Rankins, People v. Serrano, No. 93 CR 18173, April 3, 2012 Af?davit of Armando Serrano, June 30, 2008 Johnson v. Guevara, No. 05-C-1042, Deposition Testimony of Edwin Davila, Sr., February 26, 2008 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. Af?davit of Efrain Sanchez (October 5, 1993); Af?davit of Julio Sanchez (June 22, 1998); Police reports re David Colon (Lineup). Johnson v. Guevara, N0. 05-C-1042, Deposition Testimony of Evelyn Diaz, July 2, 2008 People v. Diaz, 95 CR 6109, Testimony of Luis Figueroa; Supplementary Police Report (Lineup) Johnson v. Guevara, No. 05-C91042, Deposition Testimony of Gloria Ortiz Bordoy, February 19, 2008 Af?davit of Rodolfo Zaragoza, December 4, 2002 People v. Sierra, No. 95 CR 18601, Testimony of Jose Melendez, February 6, 1997 Johnson v. Guevara, No. Deposition Testimony of Maria Rivera, April 30, 2008; Testimony of Maria Rivera, People v. Solache Reyes, No. 98 CR 12440, February 4, 2000 People v. Conception Santiago Freddy Santiago, No. 97?20973, Testimony of Robeit Ruiz, September 2, 1998 Post-Conviction Petition in People v. Rivera, 88 CR 15436, Jacques Rivera?s Petition for a Certi?cate of Innocence Testimony of Judith Martinez in People v. Hernandez, 97-21329 People v. Gonzalez, 98 CR 23340, Appellate Order OPS Complaint No. 124631, Annie Turner; Medical Records of Annie Turner; Testimony of Annie Turner, Hunt v. Jaglowslci, No. 85 1976 OPS Complaint No. 125360, Almarie Lloyd; Testimony of Almarie Lloyd, Hunt v. Jaglowskz', No. 85 1976; Testimony of Job Lloyd, Hunt v. Jaglowski, No. 85 1976 Af?davit of Leshurn Hunt, January 26, 2008; Letter to OPS from Leshurn Hunt, February 28, 1986; Hunt v. Jaglowski, 85-C-1976, Testimony of Leshurt Hunt, Richard Arnold Crawford, Lillian Garcia, John McNamara; Hunt v. Jaglowski, 926 F.2d 689 (7th Cir. 1991). Testimony of Graciela Flores, Hunt v. Jaglowski, No. 85 1976; Testimony of Anna Flores, Hunt v. Jaglowshi, No. 85 197 6 4157. 58. 59. Af?davit of Reynaldo Munoz, March 17, 2008 OPS Complaint of Rafael Garcia, Complaint No. 152902 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. 15047, Melvin Warren; Testimony of Melvin Warren, Hunt v. Jaglowski, N0. 85 1976 Af?davit of Victor Vera, December 20, 2007 Af?davit of David Rivera, February 22, 2008 Af?davit of Daniel Rodriguez, March 25, 2008 Appellate Court Opinion, People v. Montanez, 1?93-4519 People v. Elizer szado, 93 CR 24896, Suppression Hearing Testimony of Elizer Cruzado, March 31, 1995 Affidavit of Adolfo Frias-Munoz, March 10, 2008 Af?davit of Adrian Duta, June 10, 2008 People v. Flores, 1-98-2036, Appellate Order Af?davit of Jed Stone, February 20, 2008 People v. Reyes Solache, No. 98 CR 12440, Pre-trial Suppression Hearing, Testimony of Rosauro Mejia, June 19, 2000 People v. Reyes Solache, No. 98 CR 12440, Pre?trial Suppression Hearing, Testimony of Adriana Mejia, March 30, 2000 People v. Reyes Solaehe, No. 98 CR 12440; Testimony of Arturo Reyes, February 4, 2000 People v. Solache Reyes, No. 98 CR 12440, Testimony of Gabriel Solache, February 4, 2000 People v. Wrice, No. 82 865503, Order of January 25, 2013 People v. Smith, No. 83 769(02), July 17, 2014