The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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?
Q. Were you struck in the head, for example, in
an attempt to get a statement?
Q. Did you tell Mr. Schaffner and Mr. Cutrone
[Assistant State's Attorneys] that you were
beaten by the police department?
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
Late in the recross-examination, however, Orange was asked
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
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 ...