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April 11, 1980


The opinion of the court was delivered by: Leighton, District Judge.


The issue in this habeas corpus proceeding is whether petitioner's state court convictions were obtained under circumstances that deprived him of rights secured by the Sixth and Fourteenth Amendments to the federal constitution. Review of the trial record compels this court to conclude that petitioner's trial and convictions deprived him of fundamental constitutional rights. Therefore, his petition is granted; but the writ will not issue for a period of 120 days within which the State of Illinois shall give petitioner a new trial. In the event this is not done, the court will order him released either from respondent's custody or from that of any Illinois official to whom he is transferred. The following are the facts and the controlling principles of law which compel the court to its conclusion.


Sometime between 2:00 and 2:30 a.m. on July 2, 1972, three men entered an apartment at 1448 East 68th Street in Chicago and joined others who were there engaged in conversation while listening to music. Suddenly, one of the three called out "Now!" Shooting of guns erupted. By the time it subsided, two men and a woman were dead. Two other men, including Charles Stanton, were wounded. The police, responding to a call took Stanton and the other man to a hospital where they were questioned that morning and on several occasions in the days that followed. Photographs were shown to Stanton, and from what he later told police investigators, a warrant was issued for the arrest of petitioner Melvin Haywood.

The warrant, however, was not executed until June 12, 1974, almost two years later, when petitioner was arrested. He was held without bond and not subjected to a lineup or other identification proceeding until July 11, 1974 when he was taken to court for a preliminary hearing. This proceeding, under Illinois law, was limited to a showing by the prosecution of probable cause to hold petitioner for trial. The laws of Illinois, the criminal code and rules of the state supreme court prohibited discovery prior to indictment. Consequently, prior to or for the purpose of the preliminary hearing, petitioner was not entitled to discover any statement Stanton made to the police after the shooting, or any police report which may have described his conduct or what he said in connection with the investigation.

In the courtroom, petitioner sat at a counsel table, the only Negro seated there. Stanton was brought from the back of the room, took the witness stand, and testified for the prosecution. Asked if he had ever seen petitioner before, he answered in the affirmative, saying that it was petitioner who shot him during the early morning hours of July 2, 1972, and who also shot and killed the woman, his girlfriend. After responding to other general questions, Stanton was then cross-examined by petitioner's counsel.

He was asked whether prior to the morning of July 2, 1972 he had ever seen the petitioner; he said he had not. Then, among other questions, he was asked (1) his present address; (2) whether he had seen a picture of petitioner since July 2, 1972; (3) whether he had described to the police the person who shot him and his girlfriend; (4) what he told the police when they arrived and found him shot; (5) whether he had ever described his assailant to police investigators; and (6) whether he had ever described the color of his assailant to the police. The assistant state's attorney in the case objected on the ground that the questions sought discovery. His objections were sustained. Cross-examination was concluded; Stanton was not questioned further. He was the only witness called to testify; he was the only person produced by the state who identified petitioner as the man who shot and killed the woman in the apartment on July 2, 1972 and who shot and wounded him. Probable cause was found and a short time later the Cook County grand jury returned a five count indictment that charged petitioner with three murders (the killing of the two men and the woman), attempt to murder Stanton, and commission of aggravated battery on him.

Stanton, however, did not live to be a witness for the state in petitioner's trial. Sometime after the preliminary hearing, he died of causes unrelated to the events that led to the prosecution. Under Illinois law, petitioner became entitled to pretrial discovery after the indictment. His counsel obtained copies of police reports which disclosed what Stanton told police investigators on the morning of July 2, 1972, and later when he was interviewed concerning the shooting. Prior to the case being called for trial, petitioner's counsel learned that the state was going to use as its evidence the transcript of Stanton's preliminary hearing testimony. He immediately filed a motion to prohibit the state from doing so, and to suppress Stanton's identification at the preliminary hearing.

When that hearing was called, petitioner's counsel described the evidence he was going to present. He said he would be a witness and testify to the fact that the preliminary hearing judge before whom Stanton had appeared enforced a policy of restricting cross-examination of witnesses who testified for the prosecution. Counsel stated that he learned of this policy from the cases in which he was a defense lawyer; on these occasions, he saw the preliminary hearing judge restrict cross examination and sustain the state's position against making available to defendants police reports or discovery materials. He said the policy was consistent with state law; that it was applied in petitioner's preliminary hearing and thus deprived him of the right to confrontation of witnesses, to cross-examine them, as guaranteed by both state and federal constitutions.

Then, referring to a number of police reports which he said the prosecution had now given petitioner but which he did not have at the preliminary hearing, counsel described a number of inconsistencies between what Stanton told police investigators after the shooting and the testimony he gave in the hearing when he identified petitioner as the person who shot him and killed the woman in the apartment. For example, he pointed to the fact that Stanton testified he had never seen petitioner prior to the morning of July 2, 1972 in the apartment. The police reports, however, revealed that when Stanton was questioned by police investigators after the shooting, he said he knew the men who entered the apartment because they were from Gary, Indiana, and he had seen them before. Petitioner's counsel asserted that had he access to the police reports at the preliminary hearing, he would have cross-examined Stanton about this obvious inconsistency between his testimony and what he told the police officers. Moreover, counsel stated that petitioner had never been in Indiana. Therefore, had he known of the statement to the police that the men were from Gary, he would have cross-examined Stanton about it, and then he would have impeached him with evidence proving his client had never been in Indiana.

Petitioner's counsel then proceeded to compare Stanton's statements, as reflected in the police reports, with his testimony as shown in the transcript which the state was seeking to use in petitioner's trial. There were, according to petitioner's counsel, twelve general subject areas concerning which there were inconsistencies between what Stanton told police investigators about the shooting and what he told the preliminary hearing judge under oath. These inconsistencies, counsel pointed out, would have been subjects about which he would have cross-examined Stanton, had the police reports been available. Counsel argued that the preliminary hearing judge's policy restricting cross-examination, and the impact of Illinois law denying discovery to criminal defendants before indictment, had the effect of depriving petitioner of his constitutional right to be confronted by witnesses against him and to cross-examine those witnesses.

Counsel pointed out that after Stanton was questioned during the morning of July 2, 1972 and described what had happened in the apartment, a warrant issued for the arrest, not of petitioner, but of a man named Daniels who was also wounded in the shooting. Daniels, although identified by Stanton, never was prosecuted because investigation showed he was not one of the men who participated in the shooting on the morning in question. The police reports also showed that Stanton positively identified a photograph of a man named Willie Bedgood and said he was one of the offenders. Bedgood was indicted and tried, with Stanton testifying for the prosecution, but he was acquitted. The reports also showed that Stanton identified a man named Anthony Reed as a person who looked like one of the offenders. Reed was never prosecuted because police investigation showed he was not involved in the crimes. Thus it appeared that although Stanton told police investigators that three men entered the apartment and precipitated the shooting, he identified four men as the offenders. Petitioner's counsel pointed out to the trial judge that had he seen the police reports prior to the preliminary examination hearing, he would have cross-examined Stanton concerning all of the areas of apparent inconsistency between the testimony he gave for the state and what he told police investigators after the shooting.

During presentation of his outline of the evidence, petitioner's counsel was interrupted by the trial judge who said it was not necessary for him to testify because his statement for the record was adequate. The assistant state's attorney in the case did not object to this ruling. Counsel then told the trial judge that he had subpoenaed the police officers who questioned Stanton, and he was going to call them to testify concerning the police reports they had prepared. The officers, as the record shows, were not in court because of obligations elsewhere. It was understood, however, that they were ...

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