2019 1L App (lst) 181-486 The text of this opinion may . . be managed or (retracted 0. 1-18-1486 print in the time for ?ling or a Pettiinn tor Rehearing er . . ?ee diepoei?iie? of tire sauna. . Oplnlon ?led December 10, 2019. Second Division IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Appeal from the Circuit Court of Plaintiff-Appellant, Cook County. V. No. 88 CR 7771 JACKIE WILSON, The Honorable . William J. Hooks, Defendant-Appellee. Judge Presiding. JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Coghlan concurred in the judgment and opinion. OPINION 1] 1 Of?cers William Fahey and Richard O?Brien were fatally shot while on duty on February 9, 1982. This led to the biggest manhunt in Chicago?s history. While in custody, defendant Jackie Wilson (petitioner) gave a statement regarding those murders. was ultimately convicted of armed robbery and the murder of Of?cer O?Brien but was acquitted of Of?cer ahey?s murder. More than 30 years after the shooting, the Inquiry and Relief Commission (Commission) found there was suf?cient evidence that petitioner was tortured to warrant an evidentiary hearing under the Illinois Torture Inquiry and Relief Commission 'Act (Torture Act) (775 ILCS 40/1 et seq. (West 2010)). Following an evidentiary hearing, the trial court suppressed petitioner?s statement as the product of torture, vacated his convictions, and ordered a new trial. ii 2 1 On appeal, the State asserts that the trial court (1) misapplied the burden of proof, (2) erroneously prevented the State from questioning petitioner about the contents of his statement, (3) made manifestly erroneous factual findings, and (4) demonstrated bias and unwarranted hostility toward the State. We af?rm the trial court?s judgment and remand for a new trial. 11 3' I. Background 11 4 Initially, we note that the record on appeal contains a staggering amount of evidence. Consequently, we recite only those facts necessary to understand and resolve this appeal. 5 A. Motion to Suppress 6 Petitioner and Andrew Wilson (A. Wilson), petitioner?s older brother, were arrested separately on February 14, 1982. A. Wilson arrived at Area 2 headquarters (9059 South Cottage Grove Avenue) between 5:30 am. and 6 am. At about 8 am, the police arrested petitioner at 5157 South Prairie Avenue and transported him to Area-1 headquarters. Four detectives subsequently transported him to Area 2. After being interrogated, petitioner gave a court?reported statement to Assistant State?s Attorney (ASA) Lawrence Hyman in the presence of Detective Thomas McKenna and court reporter Michael Hartnett.1 Ti 7 According to the statement, petitioner, then 21 years old, and A. Wilson went to Donald White?s home (8024 South Carpenter Street) on the afternoon of February 9, 1982. The brothers 1We note that the special prosecutors? statement of facts fails to acknowledge pertinent facts that favor the petitioner, fails to provide necessary citations to the record, and contains improper argument. See Ill. S. Ct. 1R. 341(h)(6), (7) (eff. May 25, 2018). We also note that the special prosecutors have failed to provide a complete record on appeal. See S. Ct. R. 321 (eff. Feb. 1, 1994); R. 323 (eff. July 1, 2017); People v. Hunt, 234 Ill. 2d 49, 58 (2009) (reiterating that ?[a]ny doubts stemming from an inadequate record will be construed against the appellant?). -2- No. 1-18-1486 drove there in their sister?s brown Chevrolet. Inside the home,'individuals discussed helping Edgar Hope escape from the Cook county Hospital. Hope was in custody for the murder of police of?cer James Doyle. 11 8 After leaving White?s home, petitioner and A. Wilson dropped off Derrick Martin and were subsequently pulled over by a police car. Petitioner exited the driver?s seat as Of?cer O?Brien approached the car. When petitioner was unable to produce a license, Of?cer O?Brien proceeded to search the car. Meanwhile, A. Wilson exited the front passenger seat, and Of?cer Fahey. approached his side of the card-liOf?cer O?Brien then emerged with a _-.38-caliber ?rearm that A. Wilson had been carrying and ordered petitioner to freeze. He complied. 119 As A. Wilson and Of?cer Fahey disappeared from petitioner?s vision, petitioner heard a gunshot. Although not speci?ed in petitioner? statement, he had apparently heard the gunshot that killed Of?cer Fahey. Petitioner then saw A. Wilson holding a gun and heard another shot. A. Wilson had shot Of?cer O?Brien. As Officer O?Brien moved around on the ground, A. Wilson yelled at petitioner to get the of?cer?s weapon. Initially, petitioner was scared and did not speak. . He then said, however, that Of?cer O?Brien ?was still there, you know. He was up an[d] about.? In response, A. 'Wilson shot at Of?cer O?Brien four Or ?ve more times, picked up the ?rearms, and said, ?Let?s go.? According to petitioner?s. statement, he ?was still scared, standing there, you know, and Wilson] was hollering moVe, move, move.? Petitioner drove them home and parked their sister?s car. The brothers then went their separate ways. ll 10 Petitioner and A. Wilson were charged with the murder and armed robbery of both'of?cers. Petitioner, through attorneys Richard Kling and David Thomas, moved to suppress his statement. According to petitioner, the police questioned him without administering Miranda warnings or honoring his request for his attorney. See Miranda v. Arizona, 384 US. 436 (1966). Additionally, No. 1-184486 the police physically assaulted him and put a gun in his mouth. We note that the metion did not allege petitioner was subjected to electric shock. 11 At the suppression hearing, the of?cers who transported petitioner to Area 2 testi?ed that they advised him of his Miranda rights. They denied that petitioner asked to speak to his attorney or that they engaged in threatening behavior. Additionally, when they arrived at. Area 2 at about 10 am, they transferred custody of petitioner to Detective McKenna and Detective Patrick O?Hara. Those detectives testi?ed that petitioner was then advised of his Miranda rights for a second time and brought to an of?ce on the second ?oor. When they asked if he knew why he was there, petitioner referred to the two police of?cers that were killed. Petitioner voluntarily answered the of?cers? questions about the murder for 20 to 25 minutes. It is undisputed that Detective McKenna and Detective O?Hara worked under Lieutenant Jon Burge. 12 ASA Hyman testi?ed that at about 11:45 am, petitioner gave his written statement. He did not complain of mistreatment and did not appear to have been beaten. Although ASA Hyman knew petitionerhad an attorney before his arrest, he did not ask petitioner if he wanted to speak with him. At 5:30 pm, ASA Hyman and Hartnett, the court reporter, took a statement from A. Wilson, who was in an of?ce about 35 feet away from petitioner. 1] 13 In contrast, petitioner testi?ed that on the way to Area 2, the four of?cers in the car questioned him without administering Miranda warnings; When petitioner denied knowing anything about the shooting,lthe two of?cers on either side of him in the backseat elbowed him in the chest. The of?cer in the front passenger seat turned around to slap him in the face several times. 1] 14 Upon arriving at Area 2 at about 9 am, petitioner was rushed upstairs to be interrogated. The police did not immediately administer Miranda warnings but did administer them at some point. In the presence of 12 to 16 of?cers, Detectives McKenna and O?Hara told petitioner that he No.1-18-1486 appeared to be a victim of circumstances and should ?come straight.?2 Petitioner asked to talk to Fredrick Solomon, his lawyer, and showed them his business card. They responded that he did not ?need no fucking lawyer.? When petitioner said he did not want to talk, ?ve or six of?cers beat. him._ln an interrogation that lasted one to two hours, of?cers hit him with a telephone book and a dictionary, poked him, slapped him, shook him, twisted his head, twisted his ?ngers, and kicked him in the groin. One of?cer put a cooked revolver in petitioner?s mouth and asked if it made him . nervous, to which petitioner replied, ?Damn right.? When Detective O?Hara slapped petitioner, Detective McKenna told him not to damage petitioner?s face. I 1! 15 The of?cers asked petitioner what he did after Of?cer Fahey was shot. Petitioner said he ncwas doing nothing,? which led the of?cers to kick him in his side. and stomach. Petitioner their told the police that he froze when Of?cer Fahey was shot. According to petitioner, he told the police that after the second shot he ?was shocked and started backing out [of] the way.? During the interrogation, petitioner denied knowing'White and Martin. He later acknowledged, however, . that he knew the two individuals by their respective aliases, Kojak and Dee. Petitioner eventually agreed to answer questions because he heard A. Wilson screaming and heard. furniture being kicked. I ?ll 16_ Petitioner then gave ASA Hyman a written statement in the presence of Detective McKenna and Hartnett. The police had warned petitioner that if he did not tell ASA Hyman what . the police wanted him to say, the police would ?start all over again.? Despite that warning, petitioner told ASA Hyman he would not sign the statement without talking to his lawyer. .ASA Hyman and Hartnett then left the room, and Detective O?Hara threatened to break petitioner?s ?ngers unless he signed. Furthermore, petitioner?s initials were different on each page because his 2Petitioner demonstrated dif?culty in identifying officers by name. Additionally, the State acknowledgeson appeal that Burge did not testify at petitioner?s suppression hearing. -5- No.1-18-1486 fingers were swollen, and he was nervous. Detective O?Hara subsequently ordered him to smile for a phOto graph. 11 17 When petitioner saw A. - Wilson at the criminal court building the next day, A. Wilson had a patch over his and a patch on the back of his head, where he had been hit With a .45-caliber semiautomatic weapon. Additionally, A. Wilson had burns all over his body. It was obvious to petitioner that ?5the police had jumped on him.? 11 18' Following argument, Judge John Crowley denied petitioner?s motion. '11 19 B. Petitioner?s First Trial and Direct Appeal 11 20 Following a joint trial, the jury found petitioner and A. Wilson guilty of two counts of armed robbery and two counts of first degree murder. The court sentenced petitioner to concurrent 30-year prison terms for armed robbery and natural life in prison for the murders. A. Wilson was sentenced to death. jj 21 On direct appeal, the reviewing court initially rejected petitioner?s challenge to the denial of his motion to suppress but found that reversible error occurred during voir dire. People v. Wilson, 139 Ill. App. 3d 726 (1985). The supreme court then reversed that determination and remanded the cause with directions to consider petitioner?s-remaining issues. People v. Wilson, 112 Ill. 2d 567 (1986) (supervisory order). Shortly thereafter, however, the supreme court determined that A. Wilson?s statement was involuntary and should have been suppressed based on evidence showing that he sustained 15 separate injuries to his head, torso, and leg while in police custody. People v. Wilson, 116 Ill. 2d 29 (1987); see also People v. Win-ice, 2012 IL 111860, 1] 57 (stating that A. Wilson?s case was the ?rst Area 2 brutality caseto reach the supreme court). According to A. Wilson, he was kicked, punched, smothered with a bag, subjected to electric shock, and burned against a radiator. Wilson, 116 Ill. 2d at 35. 1122 On remand to the appellate court in petitioner?s case, he filed a supplemental brief urging- the court to reconsider his challenge to the denial of his motion to suppress. The court upheld the denial of petitioner?s motion but reVersed and remanded for a new trial so that petitioner could be tried separately from A. Wilson. People v. Wilson, 161 Ill. App. 3d 995 (1987). 1[ 23 I I C. Petitioner?s Second Trial and Appeal 24 At petitioner?s second trial, Tyrone Sims essentially testi?ed that he witnessed this shooting through his-living room window. When Of?cer Fahey approached the passenger side of the Chevrolet, A. Wilson exited the car, throwing his jacket inside. Officer Fahey seemed to order A. Wilson to retrieve the jacket, and A. Wilson complied. Upon searching the jacket?s pockets, Of?cer Fahey ?apparently found something that caused him to grab Wilson].? A struggle ensued. Additionally, Of?cer O?Brien grabbed petitioner, who did not struggle 'or brandish a weapon. i ?11 25 A. Wilson then removed Officer Fahey?s service revolver from its holster and shot-him in the back of the head. Next, A. Wilson shot Of?cer O?Brien, who fell to the ground. Once Of?cer I O?Brien was down, A. Wilson ?red two more shots at him andshouted, ?Let?s get out of here.? Sims acknowledged testifying at petitioner?s first trial that when A. Wilson. yelled for them to leave, petitioner did no't'get in the car. Instead, he stood there with a blank look on his facestate of shock.- ii 26 Dwayne Hardin, 'a passerby, testified that he saw petitioner and A. Wilson getting in the Chevrolet - and smiling as they drove away from the scene. Hardin apparently recanted that testimony in recent years. ii 27 The State presented evidence that the officers? service revolvers were recovered from the back of Willie?s Beauty Shop, where A. Wilson had been staying. Additionally, the State -7- No.1?18?1486 introduced petitioner?s court-reported statement as well as certain statements petitioner was alleged to have made in prison. The statements made in prison claimed responsibility for the murders of Of?cers Fahey and O?Brien. Inmate William Coleman, also known as William Clarkson, also testi?ed that petitioner and A Wilson planned a mass escape, in part so that petitioner could kill Sims, the occurrence witness to the murder. note that a trial within a trial ensued as to the credibility of Coleman?s account. See also Wilson v. City of Chicago, 6 F.3d 1233, 1239 (7th Cir. 1993) (referring to Coleman as a peripatetic felon and consummate?liar). 1T 28 The jury found petitioner guilty of both armed robberies and the murder of Of?cer O?Brien but acquitted petitioner of Of?cer ahey?s murder. The trial court sentenced petitioner to natural life in prison for murder and 30 years? imprisonment for the armed robberies. On direct appeal, the reviewing court rejected petitioner?s assertion that his confession should have been suppressed, citing the law of the case doctrine. P601023 Wilson, 257 Ill. App. 3d 670 (1993). 'll 29 D. Lieutenant Burge and His Subordinates ?l 30 Meanwhile, on February 11, 1993, Lieutenant Burge was ?red for the torture and abuse of A. Wilson. Additionally, the Chicago Police Board suspended Detective O?Hara for failing to stOp the torture or prOvide medical treatment. In the ensuing years, many more torture claims would surface. 1] 31 In 2002, the Cook County State?s Attorney was found to have-a per se Con?ict of interest in matters involving allegations that Burge and his subordinates used torture to coerce confessions. The Of?ce of the Special Prosecutor (OSP) has represented the State?s interests in these matters since then. In 2006, the OSP, under retired Illinois Appellate Court Justice Edward Egan and Robert Boyle, found that Burge and his subordinates used torture in at least 70 cases. In August 2009, the Torture Act took effect and gave felons an avenue to present ?credible evidence related No. 1?18-1486 to allegations of torture committed by Commander Jon Burge or any of?cer under the supervision of Jon Burge.? 275 ILCS 40/5 (West 2010). In June 2010, a federal jury convictedlBurge of perjury and obstruction of justice for falsely denying that he tortured A. Wilson and others. 32 E. Proceedings Under the Torture Act jj33 In 2011, petitioner ?led a claim with the Commission, once again alleging that he was tortured in Area 2. He added to the aforementioned allegations of torture that of?cers subjected him to. electric shock. The Commission concluded, ?While the evidence gathered and reviewed by the Commission has elements both supporting and detracting'frorn [petitioner?s] claim of torture, 'on balance, there is suf?cient evidence of torture to merit judicial review.?3 jl 34 Before the trial court, petitioner asked Judge Hooks to ?nd that his statement was coerced - and needed to be suppressed. The parties presented live testimony as well as testimony from I various depositions and other cases involving petitioner, A. Wilson, Burge, and his subordinates.- ASA Hyman, Burge, and Detective McKenna all invoked their fifth amendment privilege against self-incrimination. Detective O?Hara was by then deceased. {j 35 Similar to his testimony at the motion to suppress hearing, petitioner testi?ed that on the way to Area 2, of?cers questioned him about the murders, elbowed him, and backhanded him in the face; At Area 2, he encountered Detective McKenna and Detective O?Hara. Although petitioner was unable to identify them by name, he identi?ed their photographs. Petitioner testi?ed that the detectives hit him and accused him of lying. Detective McKenna hit him with a phonebook, kicked him in the groin, causing him to urinate, and Choked him. Furthermore, Detective McKenna put a revolver in his mouth. At some point, Burge entered, although petitioner did not know his name in 1982. Burge told Detective O?Hara to stop hitting petitioner in the face because they did 3The Commission ?rst reached that conclusion in May 2013 but withdrew that disposition due to the failure to notify the victims? families. The Commission reached the same conclusion in May 2015. -9- No. 1-18-1486 not want to leave marks, like they had done with his brother. Eventually, Burge said, am getting tired of this I got something that will make him talk.? Hebrought in a black box, connected wires to petitioner?s hand and turned a crank, causing him to feel ajolt. ll 36 The trial court also received petitioner?s deposition testimony from Alton Logan?s civil action against Burge.4 According to petitioner?s testimony in that case, ?they came in with the electric deal and hit me with that a bit,? causing him to urinate. It. was Burge?s idea to use the box, which had ?a little wind-up gizmo on it, you know, with some wires.? According to petitioner, he told Kling in 1982 that the black box had been used. fl 37 Kling testified, have no specific recollection of anything that [petitionerl' told me. My recollection has been refreshed from the transcript, but this is 35 years ago and hundreds of murder cases later. I have no independent recollection.? Kling did not recall whether petitioner ever told him that Burge used electric shock torture but believed he would have included that allegation in petitioner?s motion to suppress. 1] 38 We note that a logbook from Cermak Hospital?s emergency room shows that on the day after his arrest, petitioner Was brought to the hospital for a full physical and exam. The I log entry noted a laceration on petitioner?s. leg but did not refer to any other injuries. ll 39 Hartnett testified that on February 14, 1982, petitioner did not give ASA Hyman a business card or ask for a lawyer. Petitioner looked fine and did nothing to indicate he was under coercion. . Additionally, Hartnett detected no sign that petitioner had urinated on himself. That being said, Hartnett acknowledged he did not care whether petitioner was beaten and was surprised that he was even alive given the crime involved. Although A. Wilson was visibly injured during his - 4After serving 26 years in prison for murder, Logan was exonerated. -10, No. 1-18-1486 statement, Hartnett did not know or care what happened to him. Hartnett considered Burge to be a friend. 1t 40 Of?cer Chester Batey testi?ed that petitioner was read his rights at the time of his arrest and, shortly thereafter, said that A. Wilson did the shooting while petitioner did the driving. When Of?cer Batey went to Area 2 that morning, he did not see Burge or hear anything unusual. . 1] 41 On June 14, 2018, the trial court entered a 119-page opinion ?nding that petitioner?s statement must be suppressed as a product of coercion. The court found that on the way to Area 2, petitioner was elbowed, hit in the face and told he was going to talk. Moreover, the of?cers alleged . to have elbowed and struck petitioner on the way to Area 2 invoked the ?fth amendment, leading the court to infer that they had assaulted petitioner. 1] 42 On the second floOr of Area 2-, Detectives McKenna and O?Hara interrogated petitioner at Burge?s behest. When petitioner denied knowledge of the murders, the detectives would hit and kick him, and call him a liar. At one point, Detective McKenna choked petitioner and put a revolver in his mouth. Additionally, Burge entered as Detective O?Hara was slapping petitioner in the face and told him to stop. Meanwhile, petitioner could hear his brother screaming. Eventually, Burge retrieved the black box, attached wires to petitioner?s hand, and wound up the box, causing petitioner to feel an electrical jolt. I 1i 43 The trial court also found that petitioner gave Solomon?s business card to ASA Hyman and I asked to see Solomon. In addition, ASA Hyman did not ask petitioner whether he had been physically coerced, contrary to the practice of his of?ce. Given the 2006 ?nding that ASA Hyman gave false testimony when he denied A. Wilson told him he was tortured, and given ASA Hyman?s invocation of the ?fth amendment, the court inferredthat ASA Hyman knew petitioner was tortured. The court similarly inferred that Detective McKenna and Burge participated in -11.. No. 1-18-1486 petitioner?s torture given their invocation of the ?fth amendment. Additionally, A. Wilson testi?ed in 1988 that petitioner told him he had been subjected to electric shock and petitioner made the same allegation during a 2010 deposition. Burge himself told others that the Wilson brothers were tortured and that he had used the black box. Finally, the court stated, ?That Burge and his underlings would torture potential suspects and witnesses, including. Wilson], but then simultaneously reverse course during their simultaneous interrogation of [petitioner] de?es both reality and the evidence.? 1} 44 . II. Analysis it 45 A. The Burden 1] 46 On appeal, the State ?rst contends that the trial court erroneously placed the burden of proving that petitioner?s statement was voluntary on the State. To resolve this contention, we must establish the nature of the Torture Act and the hearing that ensued. {[47 ?This Act establishes an extraordinary procedure to investigate and determine factual claims of torture related to allegations of torture that shall require an individual to voluntarily waive rights and privileges as described in this Act.? 775 ILCS 40/ 10 (West 2010). Pertinent to this appeal, a claim of torture is de?ned-as ?a claim on behalf of a living person convicted of a felony in Illinois asserting that he was tortured into confessing to the crime for which the person was convicted and the tortured confession was ?used to obtain the conviction and for which there is some credible evidence related to allegations of torture committed by Commander Jon Burge or any of?cer under the supervision of Jon Burge.?5 Id. 5. ?If 5 or more of the 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the Circuit Court 5The Torture Act has since been amended to remove the requirement that the torture be committed by Burge or his subordinates. See 775 ILCS 40/5 (West 2016). of Cook County Id. 45(c). To be clear, the Commission?s dispositionof a torture claim is not a ?nal determination that the claimant proved he was tortured; rather, it is merely a ?nding that there is suf?cient evidence to proceed tothe circuit court. People Christian, 2016 IL App (1st) 140030, 79; see also 2 Ill. Adm. Code (2014) (stating that the Commission need not ?nd it more likely than not that torture occurred in order to refer 'a claim for judicial review). it 48 When a case is referred, ?[t]he court may receive proof by af?davits, depositions, oral testimony, or other evidence.? 775 40/5 0(a) (West 2010). ?Notwithstanding the status of any other postconviction proceedings relating to the petitioner, if the court ?nds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary - orders as to rearraignment, retrial, custody, bail or discharge, or for such relief as may be granted under a petition for a certi?cate of innocence, as may be necessary and proper.? Id. Thus, the court has a-variety of remedies at its disposal. While the statute enumerates the award of a new trial as one form of available relief, suppressing a confession Would also constitute ?an appropriate order with respect to the judgment.? Moreover, at oral arguments in this matter, the State conceded that the Torture Act authorizes the trial court to suppress a confession. We also ?nd that legislative history indicates that a trial court may suppress a statement when referred a case pursuant to the Torture Act. 6Section 122?6 of the Post-Conviction Hearing Act similarly states that if the court ?nds in the petitioner?s favor, ?it shall enter an appropriate order with respect to the judgment 0r sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.? 725 ILCS 5/ 122?6 (West 2016). -13- No.1-18-1486 49 At a hearing before the Senate, former Senator Kwame Raoul stated that the Torture Act was ?about victims of torture seeking relief.? 96th 111. Gen. Assem, Senate Proceedings, Mar. 25, 2009, at 26 (statements of Senator Raoul). He added: ?[T]here are people who may currently be incarcerated who may not-* need to be there. And there are people who may have served time who may want to clear their name. And this torture commission would allow them a vehicle to do so. You know, we?re trying to create a vehicle where there would be a commission who will confront this issue once and for all.? 1d. at 27. Representative Reboletti stated shortly thereafter that ?if there are people wrongfully imprisoned,? they should be released as soon as possible.? 96th 111. Gen. Assem, House of Representatives Proceedings, May 13, 2009, at 17 (statements of Representative Reboletti). 11 50 These remarks indicate that the Torture Act was intended to de?nitively and expeditiously decide whether a petitioner was tortured and provide appropriate relief. Additionally, these goals, as well as judicial economy, are furthered by permitting the trial court to simultaneously consider a petitioner?s claim under the Torture Act and his request to suppress his statement. See 12. Gibson, 2018 IL App (lst) 162177, 139 (stating that the trial court?s inquiry at a suppression hearing signi?cantly overlaps with the inquiry at an evidentiary hearing on police torture). We now determine the appropriate burden to be applied at a simultaneous hearing. 1] 51' An evidentiary hearing under the Torture Act has been likened to a third-stage evidentiary hearing under the Post?Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/ 122-1 criseq. (West 2016)), at which the claimant has the opportunity to demonstrate by a preponderance of the evidence that his confession resulted from coercion. Christian, 2016 IL App (1st) 140030, 11 78 (citing State of Ill. Torture Relief Comm?n, TIRC Home, -14- No. 1-18-1486 pages/defaultaspx (last visited Dec. 2, 2019) Like the trial court, hoWever, We. ?nd a petitioner?s initial burden does not require him to prove that his confession actually resulted from coercion. ii 52 First, even an evidentiary hearing under the Post-Conviction Act is not intended to decide the ultimate issue of whether the petitioner?s confession was coerced. See People v. Whirl, 2015 IL App (1st) 111483, 11 80. Instead, the petitioner has the burden of showing only that newly discovered evidence would likely have altered the result of a suppression hearing. See fol; see also People v. Galvan, 2019 IL App (1 st) 170150, 11 74 (?nding the trial court?s denial of postconviction relief was against the manifest weight of the evidence where new evidence of abusive tactics that an of?cer used in interrogating others would likely have led to a different outcome at the suppression hearing). Given the similarities between evidentiary hearings under the Post? Conviction Act and'the Torture Act, we'?nd a petitioner?s initial burden under the Torture Act is I the same. The legislature clearly did not create a new form of postconviction relief 'with'the intent that a petitioner satisfy a heavier burden than that imposed by the Post-Conviction Act. See 775 ILCS 40/50(a) (West 2010) (allowing a court to award the status of any other postconviction proceedings?). As stated, however, a hearing'under the Torture Act may provide relief beyond the relief available under the Post-?Conviction Act. Speci?cally, a petitioner may obtain the suppression of his statement. 11 53 At a motion to suppress hearing, ?the State bears the burden of proving the confession was voluntary by a preponderance of the evidence.? People v. Slater, 228 Ill. 2d 137, 149 (2008). Once the State has established its primafacfe case that the statement was voluntary, the burden shifts to the defendant to present evidence that the confession was involuntary. People v. Richardson, 234 Ill. 2d 233, 254 (2009). If the defendant satisfies his burden, the burden reverts to the State. Id. -15- No. 1?18?1486 1] 54 We find that after a petitioner satis?es his initial burden of showing that new evidence would likely have resulted in the suppression of his confession, the State has the burden of proving petitioner?s statement was voluntary, just as it would at a motion to suppress hearing. The burden shifting provisions involved in a motion to suppress likewise apply. 55 Here, after ?nding that petitioner satisfied his initial burden, the trial court found the State could arguably make a primafacz?e case that petitioner?s confession was voluntary. Additionally, the court found petitioner was able to ?present sufficient evidence his confession was involuntary so as to revert the burden back to the State.? That being said, ?the evidence adduced in this hearing establishes that the State is incapable of rebutting that [petitioner?s] statement was involuntary.? The court concluded, ?[petitioner] has made the requisite showing, not only that the-probability the outcome of his suppression hearing would differ had the witnesses been subject to impeachment, but, more, that the State could not meet its burden to show [petitioner?s] statement Was voluntary in a new suppression hearing.? The court correctly-identi?ed and applied the relevant standards. Even assuming that the trial court should have applied the standard annunciated in Christian, at the end of the day, the court clearly found that petitioner demonstrated by a preponderance of the evidence that his confession resulted from coercion. See Christian, 2016 IL App (1st) 140030, 78. We ?nd no error. 1i 56 B. The Contents of the Statement 57 Next, the State asserts that the trial court erroneously prevented it from questioning petitioner about the content of his statement. According to the State, where a petitioner?s confession mitigates his involvement in the crime, the confession also negates evidence of . coercion. ~16- No.1-18-1486 11 58 The trial court?s evidentiary rulings, which involve the court?s oversight of the courtroom and maintenance of a-case?s progress, will not be reversed absent an abuse of discretion. People Jones, 2012 IL App (1st) 093180, ll 52. An abuse of discretion exists only where the court?s evidentiary rulings are fanciful, arbitrary, or unreasonable or when-no reasonable person would take the trial court?s view. Id. Additionally, trial court may reject offered evidence on grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty, or possibly unfair prejudicial nature.? People V. Word, 101 Ill. 2d 443,455 (1984). 11 59 To determine whether a confession was voluntary, courts must consider whether the petitioner?s will was overborne at the time of his confession. People v. Kincaid, 87 Ill. 2d. 107, 117 (1981). ?It is Unlikely that a person whose will Was overborne would be unable to resist confessing, yet at the same time attempt to mitigate the effect of a confession.? Id. at 120; See also Christian, 2016 1L .App (1st) 140030, 11 110 (finding the trial court properly considered thatlthe petitioner?s statement minimized his action). That being said, ?[t]he truthfulness or reliability of a confession is irrelevant in determining whether it was voluntarily made.? Kincaid, 87 Ill. 2d at 117', see also People v. Galarza, 391 Ill. App. 3d 805, 810 (2009) (?at a hearing-0n a motion to suppress, the content of a defendant?s statements is immaterial?). Coerced confessions, whether true or false, may not be used because the methods of extracting them offend the underlying principle that our system is accusatorial, not inquisitorial. Gibson, 2018 IL App (lst) 162177, 11 106. The erroneous . use of a physically coerced confession as substantive evidence is never harmless. Id. {l 107. 11 60 Despite the State?s characterization of this issue, we agree with petitioner that the State- below essentially sought to question petitioner about the facts of the underlying crime rather than the statement itself. Additionally, the record shows that the court permitted the State to argue that petitioner was attempting to minimize his involvement by alleging he was only the driver. -17- No. 1-18-1486 Furthermore, the court did not restrict the State from using the statement itself to argue it was voluntary. The State?s reply brief contains no further argument on this matter. Accordingly, we ?nd no abuse of discretion. . 1] 61 I C. Manifest Error 1] 62 The State further asserts that the trial court?s factual ?ndings were against the manifest weight of the evidence. See People v. Pratt, 2018 IL App (5th) 170427, ll 19; Christian, 2016 IL App (1st) 140030, 1i 106. In order to be against the manifest weight of the evidence, the court?s decision must be arbitrary, unreasonable, and not based on the evidence. Jones, 2012 IL App st) 093180, 1[ 49. Additionally, the trial judge, who is in the best position to observe the witnesses, occupies an advantageous position warranting deference. Christian, 2016 IL App. (1st) 140030, 11 106; see also People v. Johnson, 208 Ill. 2d 118, 138 (2003) (stating that in reviewing the trial court?s ruling on a motion to suppress, that ruling may be af?rmed on any ground in the record). 63 To determine whether a statement was voluntary, courts consider the totality of circumstances, including the presence of Miranda warnings, the duration of questioning, and any physical or mental abuse. Richardson, 234 Ill. 2d at 253-54. Additionally, ?a series of incidents spanning several years can be relevant to. establishing a claim of a pattern and practice of torture.? - People v. Patterson, 192111. 2d 93, 140 (2000). 11 64 Here, the State ignores a plethora of evidence that corroborates petitioner?s claim of torture and supports the court?s ?ndings. Petitioner?s allegations have remained substantially the same for more than 30 years. He has consistently alleged that he was elbowed and slapped on the way to Area 2. He has maintained that he was hit with books and that a gun was put in his mouth. Compare Gibson, 2018 IL App (lst) 162177, 120 (stating that while details had varied, ?the core allegations have remained the same: a group of detectives repeatedly slapped, punched, and -13- No. 1-11 8-1486 kicked him, primarily in his chest?), with Christian, 2016 IL App (lst) 140030, 111} 107-10 (?nding the trial court?s determination that the petitioner had not shown he was tortured was not against the manifest weight of the evidence where the petitioner gave four different versions of his actions and his final version minimized his involvement); see also Whirl, 2015 IL App (lst) 111483, 1i 84 (stating in the context of the Post-Conviction Act that slight differences between the petitioner?s present and past testimony were only marginally relevant to whether new evidence showing a pattern and practice of abusive tactics Would have produced a different outcome at a suppression hearing) . ?l65 The State nonetheless challenges the credibility of petitioner?s allegation that Burge participated in torturing him because he-did not refer to Burge at the initial suppression hearing. I Petitioner demenstrated dif?culty in identifying of?Cers by name at the suppression hearing. Unlike Detectives McKenna and O?Hara, Burge did not testify at that hearing. While Burge was discussed at A. Wilson?s suppression hearing, petitioner?s suppression hearing apparently occurred first. The State has forfeited its contention that petitioner was present atA. Wilson?s hearing by failing to provide a citation to the record in support thereof. Ill. S. Ct. R. 34l(h)(7) (eff. May 25, 2018); People v. Sprind, 403 Ill. App. 3d 772, 778-79 (2010) (stating that the failure to support argument with citation to the pages of the record results in forfeiture). Moreover, evidence supports the court?s determination that petitioner?s allegations regarding electric shock Were made well before petitioner ?led his petition under the Torture Act. A. Wilson testi?ed at a 1988 deposition that petitioner had said he was. subjected to electric shock, and petitioner testi?ed in a 2010 deposition that he was subjected to electric shock. 66 Furthermore, the decision of government actors to invoke their fifth amendment privilege against self-incrimination is judicially deafening under the facts. of this morbid tale of improper -19- No.1-18-1486 law enforcement. As the trial court recognized, and as we affirm, the ?fth amendment does not preclude a trier of fact from making an adverse inference that a party?s refusal to testify is evidence of guilt. Gibson, 2018 IL App (ist) 162177, 1} 85. Instead, the court may treat a party?s refusal to testify as evidence of the misconduct alleged. Id. This court has stated, ?when, in theface of a credible allegation, an of?cer of the court is unwilling to assure the court that he and his colleagues did not physically coerce a confession, when he determines that a truthful answer could subject I him to criminal liability, the court should take careful note.? (Emphasis omitted.) Id. it 108. ii 67 Here, ASA Hyman, Burge, and Detective McKenna all refused to testify, invoking their fifth amendment privilege against self-incrimination. Three of the of?cers who transported petitioner to Area 2 also invoked the ?fth amendment. We further note that the OSP found in 2006 that ASA Hyman gave false testimony-when he denied that A. Wilson reported torture 'to ASA Hyman. The court was entitled, albeit not required, to treat this as evidence of misconduct. 1] 68 The State, relying heavily on the 2006 report, contends there were ?dramatic inconsistencies in [petitioner? 5] version of events at Area That report found that petitioner made no complaint to ASA Hyman, there was no medical evidence of physical injuries and-that A. Wilson made it clear that Detectives McKenna and O?Hara did not mistreat him. 69 First, the court, as the trier of fact, was not bound by the report. The State also overlooks that the court had more information at its disposal in 2018 than the OSP had in 2006. Additionally, there is no requirement that petitioner?s allegations be supported by obvious physical injury, and it is hardly surprising that his torturers would avoid leaving a mark. See People v. Reyes, 369 Ill. App. 3d 1, 22 (2006) (stating that the absence of visible signs of physical abuse is relevant but not dispositive). We also know now that petitioner was taken to the hospital after- giving his statement. Furthermore, A. Wilson?s testimony that Detectives McKenna and O?Hara -20- No. 1-18-1486- did not participate in his torture in no way negates petitioner?s testimony that the same detectives tortured him.7 1] 70 In its reply brief, the State adds that the timeline did not support petitioneris testimony that he was tortured for an hour or more. The State has forfeited this contention by failing to include this assertion in its opening brief. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (stating that ?[p]oints . not argued are forfeited and shall not be raised in the reply brief?). Forfeiture aside, there is no minimum duration that one must be tortured before his statement will be deemed coerced. Furthermore, petitioner has repeatedly indicated that he was not wearing a watch on the day of his arrest and was estimating time frames based on his subjective impression. Petitioner has not asserted the hard timeline that the State suggests. See also-Gibson, 2018 IL App (lst) 162177, 1[125 (recognizing that ?[d]isparities in ?ne-grained detail are routinely present in witness?s accounts, particularly those of stressful events?). 1171 Simply put, the State has not demonstrated that the trial court?s ?ndings were against the manifest weight of the evidence. I I 11 72 D. Prejudice Toward the State 11 73 Finally, the State asserts that this matter should be remanded 'for a newhearing before a different judge becaUse the record is full of instances where the trial judge demonstrated animosity, hostility, ill will,.distrust, prejudice, predilections, and arbitrariness toward the State, the Cook County State?s Attorney Of?ce, the OSP, and the Chicago Police Department. We disagree. TThe State asserts in a conclusory fashion that ?[c]ertain of the trial court?s ?ndings of fact, speci?cally, paragraphs 121, 124-127, 129, 131-149, 151, 164, 171, 173-86, 205, 223 and 232, are manifestly erroneous for several compelling reasons.? Yet, the State has failed to develop a cohesive argument explaining why each of the enUmerated findings was in error. See 111. S. Ct. R. 341(h)(7) (eff. May 25, 2018); People v. Edwards, 2012 IL App (lst) 091651, '11 29 (recognizing that reviewing courts are entitled to clearly de?ned issues and cohesive arguments). -21- Tl 74 Judges are presumed to be impartial. In re Marriage ofO?Brien, 2011 IL 109039, 11 31. The party asserting that the trial court was prejudiced has the burden of demonstrating actual prejudice. See People v. Vance, 76 Ill. 2d 171, 178 (1979). To have a matter remanded to a new judge, a party must demonstrate that the judge displayed hostility, animosity, distrust, ill will, prejudice, predilections, or arbitrariness. See Reyes, 369 111. App. 3d at 25. That being said, judicial remarks that are critical of, or merely hostile to, counselor the parties ordinarily do not show bias. In re Marriage of O?Brien, 2011 IL 109039, j[ 31. Expressions of dissatisfaction, annoyance, impatience, and anger are within the bounds of What judges sometimes display and do not establish bias or partiality. See Lireky v. United States, 510 US. 540, 555-56 (1994). Furthermore, judge?s ordinary efforts at courtroom administration?Meyen a stern and short-tempered judge?s ordinary effort atlcourtroom administration?remain immune.? Id. at 556. 75 The determination that a judge is disquali?ed due to prejudice is not to be made See Reyes, 369 Ill. App. 3d at 25. Such a determination re?ects unfavorably upon the judge and tends to disrupt the judicial-system. Vance, 76 Ill. 2d at 179. Additionally, the trial judge is ordinarily the best situated to decide whether he was prejudiced. Id. at 178. I 11 76 First, the State contends that the trial judge relied on matters outside of the record to justify the suppression of petitioner?s confession. The State points to the following concluding remarks: ?Much more was required of the Chicago Police Department, the of?ce of the Cook County State?s Attorney, our courts, the private and public defense bar and, indeed, our federal government. In this matter, as well as dozens of related cases, too many postconviction tribunals and Torture Commission [cases] have been forced to conduct post- . mortem examinations of the torture and death of nothing less than our constitution at the hands of Jon Burge and his crew[.] The abhorrence of basic rights of suspects by -22- No. 1?18-1486 Burge and his underlings has been costly to the taxpayers, the wrongfully convicted, and. . worst of all, the dozens of victims and their families who have suffered untold grief?in many cases, a 30-plus year horror story.? Yet, the State has failed to identify whiCh portion of this concluding statement is outside the record, and its contention is forfeited. See Ill. S. Ct. R. May 25, 2018). Additionally, the State ignores that-the challenged statements followed more than y100.pages of detailed ?ndings and analysis. Furthermore, the State, as represented by the special prosecutors in this case, demonstrated a stunning level of denial about the well?established practice of torture in Area 2 and ?ndings of torture made by, the special prosecutors? own predecessors.? 1l 77 The State also contends that the trial judge expressed bias by strongly criticizing the police for costing taxpayers millions of dollars and by inappropriately stating that detectives and ASAs were involved in a conspiracy to shield misconduct. Simply put, the record, whether by direct evidence or inference, supports the judge?s ?ndings. Additionally, the record rebuts the State?s assertion ?that at every opportunity, Judge Hooks went out of his way to attack the Special Prosecutor.? On numerous occasions, the trial judge overruled petitioner?s objections and sided with the State. 1] 78 Furthermore, the court?s comments questioning the actions or lack thereof merely demonstrate that he appreciated the gravity of this case and the time and expense that would be wasted if this matter was not handled with diligence and care. To the special prosecutors here, the court stated, looks like you?re working hand in hand with the defense attorneys that are 8During opening statements, the special prosecutors were unwilling to concede that Burge engaged in a pattern and practice of torture and conceded only that Burge and ?[h]is subordinates did on occasion engage in abusive activities.? The special prosecutors did not grasp that they were bound by their predecessors? ?nding that there was suf?cient proof of abusive tactics by Burge?s subordinates in at least 70 cases and only reluctantly conceded that that was the case. -23- representing the detectives and police of?cers that may have been involved in the matters. that are before this court.? Although the trial court employed such remarks in questioning why the special prosecutors had not challenged of?cers? entitlement to invoke the ?fth amendment, this was entirely consistent with the foregoing concerns.9 It is well settled that the American prosecutor plays a special role in. the search for truth: the prosecutor?s interest is in seeing that justice is done, not winning a case. See People v. Beaman, 229 Ill. 2d 56, 73 (2008) (citing Strickler v. Greene, 527 US. 263, 281 (1999)). {j 79 Moreover, the trial judge learned just prior to petitioner?s evidentiary hearingthat Assistant Special Prosecutor Brian Stefanich had left the OSP to become a defense attorney for Burge in federal court. The trial judge was caught off guard, to say the least, but Special Prosecutor Michael O?Rourke stated that Stefanich had not acted improperly because ?the interest of the peOple and the petitioners in that case are aligned.? 1] 80 The trial judge responded, ?Are you telling me this after hundreds of thousands of dollars of taxpayers? funds have been expended because of a purported con?ict you?re stating that convicted felon Jon Burge?s interests are aligned with the special prosecutor?s interest in this matter before this Court?? The judge-also stated that ?the court has an obligation to look at ethical issues that surface.? Although he acknowledged that he did not know how this issue was going to be resolved, he suggested that petitioner?s attorney ?le a motion. The judge explained that in addition to his primary role in presiding over this matter, his secondary role was ?to review the expenditure of taxpayer funds.? To that end, he believed he needed to know how much money the special prosecutors received in Burge torture cases. He stated, ?If you all have done ethical review 9During opening statements, the special prosecutors indicated they planned to ask for the court?s assistance concerning persons who were taking the fifth in this case, but Judge Hooks explained that any such request would be too late at thatjuncture. -24- Nod?184486 and you ?rmly believe there?s no problem, then you?ve taken your position, you know. I just have a separate obligation to review that position in another form and another time.? fl 81 _With respect to this situation, there can be little doubt that the trial judge was annoyed, dissatis?ed, and stern. Yet, he ultimately ruled that: I ?[a]fter having had an opportunity to review the materials referenced above in View of the parties? relative positions 'on the issue, the Court concurs in the joint assessment of the parties that no present controversy now exists in this case which would warrant further review or action by this Court, a disciplinary body or a special master appointed by the Court.? 'He added, ?nothing raised in the context of the Court?s inquiry in its supervisory capacity as to past billing practices is to in anyway be construed as a Suggestion of impropriety.? The State has not shown that the trial judge was prejudiced or biased. 82 I Conclusion ll 83 Here, the trial court properly identi?ed and applied the burden of proof. AdditiOnally, the I court did not err by precluding the State from questioning petitioner regarding the underlying crime. Furthermore, the court?s findings were not against the manifest weight of the evidence and the State has not shown that the court was prejudiced or biased. Accordingly, we af?rm the judgment in all respects and remand for a new trial. fl 84 Af?rmed and remanded. -25- No. 1-18-1486 N0. 1?48-1486 People v. Wilson, 2019. IL App (lst) '181486 Cite as: Decision Appeal from the Circuit Court of Cook County, No. 88? Under the Hon. William J. Hooks, Judge, presiding. Review: Attorneys Michael J. O?Rourke-Myles P. O?Rourke, and Robert E. for Williams, Special Assistant State?s Attorneys, of Chicago, for Appellant: the People. Attorneys G. Flint Taylor, John L. Stainthorp, and Christian Snow, for of People?s Law Of?ce, and Elliot Slosar, of The Exoneration Appellee: Project, both of Chicago, for appellee. ~26-