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October 9, 1981


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


Leon Blackwell ("Blackwell") was convicted of murder and burglary March 9, 1977 in the Circuit Court of Cook County. After exhausting all available state remedies Blackwell brought what is now his Amended Petition for a Writ of Habeas Corpus (the "Petition")*fn1 charging that he was denied rights under the Due Process Clause of the Fourteenth Amendment and the Confrontation Clause of the Sixth Amendment.*fn2 Respondents have moved to dismiss or for summary judgment and Blackwell has filed a cross-motion for summary judgment. For the reasons stated in this memorandum opinion and order respondent's motion is denied and Blackwell's motion is granted.

Harris Orange's Confession

On June 4, 1975 someone broke into and burglarized the home of Agnes Bookham, an elderly lady, and murdered Ms. Bookham. Blackwell was tried and convicted by a jury for both burglary and murder.

Only the testimony of Harris Orange ("Orange") connected Blackwell to the crimes. Orange testified that he, Blackwell and Charlita Ponce ("Ponce") had joined in the break-in and burglary and that the other two (but not he) had taken part in the actions that led to Ms. Bookham's death.*fn3 Orange too had initially been indicted for both burglary and murder. But on August 6, 1976, almost one year after he had been charged, Orange agreed to testify for the prosecution. In exchange, Orange pleaded guilty to burglary and the state dropped the murder charge. Under that arrangement Orange testified at Blackwell's trial and provided the state's only directly incriminating evidence.

On cross-examination Orange's credibility came under serious attack, for he admitted that:

    (1) He would probably lose the "deal" he had
  made with the State if he did not testify so as
  to incriminate Blackwell.
    (2) He had been a narcotics addict and
  committed thefts to support his drug habit.

(3) He had prior convictions.

    (4) He had pleaded guilty to a charge of
  narcotics possession and then falsely told the
  sentencing judge that he was a heroin addict (he
  was in fact addicted to pills) to avoid

But the most critical attack — and the one that has led to this action — was the attempt by Blackwell's counsel to imply that Orange was fabricating testimony to avoid a prosecution for murder. On redirect the prosecutor responded by offering into evidence the transcript of an oral confession Orange had made shortly after his arrest August 30, 1975. That confession, made before any deal was struck with the State, was entirely consistent with Orange's testimony at trial.

Once the confession was introduced it became a principal focal point of the prosecution's case. It was read to the jury at the close of the State's case and then emphasized by the prosecutor both in closing argument and in rebuttal (when he mentioned it six times).

On recross-examination Blackwell's attorney questioned Orange about the circumstances under which the confession was given (Tr. 159-60):

    Q. Well, before you made the statement . . .
  were you ever physically intimidated by the
  police to make a statement?

A. Yeah.

    Q. Were you struck in the head, for example, in
  an attempt to get a statement?

A. Yes.

    Q. Did you tell Mr. Schaffner and Mr. Cutrone
  [Assistant State's Attorneys] that you were
  beaten by the police department?

A. Yes.

    Q. Did they ever take cigarettes and put them
  on your body in an attempt to make you say
  something about this homicide?

A. One of them burned me with a cigarette.*fn4

    Q. Well, how long did they strike you in an
  attempt to make you say this information about
  this homicide?

A. About three hours.

Late in the recross-examination, however, Orange was asked (Tr. 172):

    Q. Was the statement which you made in police
  custody which you had indicated was made August
  30, 1975, was that statement a voluntary
  statement on your part, is that — was it given of
  your own free will, or was it forced out of you, so
  to speak?

A. It was given of my own free will.

Blackwell contends that the evidence revealed on recross-examination indicated Orange's confession was not voluntary. Blackwell argues its admission into evidence without first conducting a hearing to determine whether it was in fact voluntary violated due process.*fn5

Respondents counter that Blackwell lacks standing to assert Orange's Fifth Amendment right. But Blackwell is not advancing another's Fifth Amendment right. Instead he urges that his own due process rights were violated because inherently unreliable evidence — an involuntary confession — was admitted.

Two Courts of Appeals have addressed that issue: LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir. 1974); Bradford v. Johnson, 476 F.2d 66 (6th Cir. 1973), affirming on the opinion in 354 F. Supp. 1331 (E.D.Mich. 1972). Each decision found a due process violation when a witness' involuntary confession was admitted into evidence. But each dealt with a somewhat more egregious situation than this one.

In LaFrance the witness recanted at trial the statements made in the earlier confession and stated that the earlier confession was the product of coercion.*fn6 As already noted, at trial Orange both affirmed his earlier statement and said that it was voluntary. LaFrance held ...

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