The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Rickie Cole ("Cole") has filed a 28 U.S.C. § 2254 ("Section
2254") petition for writ of habeas corpus, based on the admission
into evidence at his state court murder trial of his allegedly
involuntary confession. At Cole's request (and without objection)
this Court treats the answer by Illinois Department of
Corrections Director Michael Lane ("Lane"), together with Lane's
subsequent filing of the state court record, as a Fed.R.Civ.P.
("Rule") 56 summary judgment motion. Cole, acting through
counsel, has filed a cross motion for summary judgment. Based on
the state court record and the analysis in this opinion, Lane
prevails on both motions.
Cole was convicted of the murder of his estranged girlfriend,
based principally on his July 30, 1979 confessions.*fn2 Before those
confessions Elgin Police Detective Gary Shaver ("Shaver") told
Cole if he cooperated he would probably be charged with
manslaughter rather than murder because that was the approach
generally taken in Cook County. Cole later confessed orally to
Elgin police interrogators, repeated his confession for tape
recording and finally signed a typed confession prepared by Elgin
Among the positions Cole asserted during the criminal
proceedings against him was that his confessions should be
suppressed as involuntary. Cole's November 26, 1980 Motion To
Suppress Confessions ¶ 4 (R. 1454) stated:
In closing argument after a two-day hearing on Cole's motion to
suppress, his attorney argued Shaver's statement to Cole was an
impermissible promise of leniency rendering his confessions
involuntary (see R. 704). That is the only ground on which Cole
now seeks habeas relief.
Cook County Circuit Court Judge Kenneth Cohen denied Cole's
suppression motion in a May 12, 1981 oral bench ruling, during
which he considered each allegedly coercive circumstance. Before
discussing Shaver's promise of leniency he quoted from People v.
Houston, 36 Ill.App.3d 695, 344 N.E.2d 641 (1st Dist. 1976),
which held in part that promises of leniency in that case did not
render a defendant's confession involuntary. Judge Cohen then
stated (R. 725-26):
We have mental — subtle mental threats. He was
promised that he would be afforded leniency or
The Court feels that the words and acts that [sic]
the police officers as described by the Defendant did
not constitute the coercion. That there is nothing
here to indicate that any of the acts or the words
here were likely to produce[ — ]any acts or words of
the police officers that [sic] were likely to
produce[ — ]an untrustworthy confession.
The Court feels that the confession was made freely,
voluntarily, knowingly and intelligently, and that
the State has met their [sic] burden by the
preponderance of the evidence.
Motion to Suppress Confession denied.
On appeal Cole argued (among other things) Judge Cohen had
applied the wrong legal standard to the effect of promises of
leniency on voluntariness of confessions. In an unpublished June
28, 1983 order the Appellate Court for the First District,
115 Ill. App.3d 1154, 78 Ill.Dec. 250, 461 N.E.2d 1084, (No. 81-1745,
slip op. at 6) rejected that contention:
Defendant also claims that the trial court erred in
denying his motion to suppress his confession to the
police because he made the confession after he had
been offered leniency for cooperating. Defendant
testified at his suppression hearing that the reason
he eventually gave a confession was because the
police told him that since the case was in Cook
County, if he would cooperate he would be charged
with manslaughter rather than murder; if he didn't
cooperate, he would get what his brother did for
raping a white girl. The officers who interviewed
defendant at the station denied that they ever
offered leniency to defendant, ...