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November 16, 1999


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


In his petition for a writ of habeas corpus, Wilder Kendric Berry claims that his privately retained trial counsel, Leo I. Fox, was constitutionally ineffective in representing petitioner at his 1992 trial on the charges of aggravated kidnaping and aggravated criminal sexual assault. After briefing the issue, this court held an evidentiary hearing (the "habeas hearing")*fn1 at which petitioner, Fox and two other witnesses testified. Based on the record presented, this court is convinced that Fox's representation of petitioner was incompetent and ineffective under the standards established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. Accordingly, the court grants the writ of habeas corpus.

The Case*fn2

At the time of the incident in question, October 31, 1991, petitioner, then age 22, who had never before been arrested or charged with a crime, was a probationary police officer with the University of Chicago police. At approximately 11:00 p.m. that evening, petitioner saw the alleged victim, 16 year old*fn3 Ms. Tolamey Gray ("Ms.Gray"), walking with some of her family members. Wishing to meet Ms. Gray, petitioner parked his car near the group and got out. Petitioner claims that he opened his trunk, retrieved a screwdriver and pretended to be working on the car. According to Ms. Gray and other witnesses, petitioner got a shotgun from the trunk of the car, approached the group with the gun, and told the group to leave while he kept Ms. Gray with him. Petitioner claims that he struck up a conversation with Ms. Gray near the open trunk, and that he took the shotgun out of the trunk and disassembled it to demonstrate that it was not a threat. Ms. Gray's family continued to their home, where they called the police. There is no dispute that petitioner did not use the shotgun again after replacing it in the trunk shortly after meeting Ms. Gray.

Petitioner claims that he and Ms. Gray took a walk in a nearby park for five or ten minutes, after which she got into his car and rode around with him for a period of time, during which he stopped at a gas station and made several telephone calls. No one else was in the car. Afterwards, according to petitioner, the couple went to petitioner's home, parking the car in the garage and walking to the front of the house. Petitioner testified that he stopped on the way into the house to talk with a friend, William Wheat. After entering the house, petitioner and Ms. Gray had consensual sex in petitioner's basement apartment.

According to Ms. Gray, after her family left, petitioner demanded sex, stating "either you give it to me or I'll take it from you with a gun to your head." Petitioner then forced Ms. Gray to enter the car, in which another man was seated in the back seat. Petitioner told her that if she cooperated she would not get hurt and would "get away alive." Ms. Gray admits that she did not try to escape or seek help, even when petitioner stopped at a gas station where people were present and where petitioner had a brief conversation with the other passenger before letting him off, or when they entered petitioner's home, where she heard petitioner speak to a woman.

Ms. Gray testified at trial that petitioner eventually drove to a garage, where he forced her to undress and have oral sex and vaginal intercourse in the car's back seat, lasting about five minutes. After that, he told Ms. Gray to spread her coat on the garage floor and forced her to have intercourse again, lasting about eight minutes. According to Ms. Gray, petitioner then led her by the arm, crying and naked except for a short coat, from the garage to the front of the house. She was carrying her other clothes. In the basement of the house he performed oral sex on her and had vaginal intercourse again. According to Ms. Gray, when she resisted, petitioner threatened her repeatedly that he had a handgun, although she admits that she never saw such a weapon.*fn4

Ms. Gray also admitted that after being repeatedly raped, in response to petitioner's demand she gave him her first name, the last name of her grandmother (with whom she lived), her phone number and her address. According to Ms. Gray, petitioner then drove her home, but forced her to perform oral sex and unsuccessfully attempted vaginal intercourse on the hood of his car a short distance from her home. Petitioner then gave Ms. Gray his first name ("Ken") and the telephone number of his pager.*fn5 When she returned home at 2:30 a.m., Ms. Gray told her family that she had been raped. In the days that followed, petitioner visited Ms. Gray's home several times and attempted to reach her by phone a number of times, leaving his name. There is conflicting evidence as to whether he identified himself as a policeman when he made some of these calls and visits. The police eventually traced a call to petitioner's home and arrested him on November 16, 1991. He has been in custody ever since.

Petitioner's family retained Leo Fox as a result of a reference from a family friend. Fox charged a flat fee of $3,500 to represent petitioner, which was paid over time by petitioner's sister. Fox claimed that he met with petitioner "10, 15 times," spending between five and fifteen minutes each time, to prepare the defense prior to trial, which took place March 3 and 4, 1992.*fn6 Fox admits that the only times he met with petitioner to prepare for trial were in the "bullpen" (the lockup adjacent to the courtroom) before or after petitioner's court appearances on the criminal charges. Yet, when confronted with the docket entries from petitioner's case file, which established that the most he could have met with petitioner was twice, Fox conceded that the docket was correct and contradicted his earlier statement.

Moreover, it is uncontested that the bullpen is crowded with other prisoners, and petitioner testified at the habeas hearing that he was unwilling to discuss his case in the presence of other prisoners because he did not want to reveal to them that he was a police officer. Petitioner also testified that at each of the two brief visits with Fox in the bullpen, Fox promised to visit petitioner at the Cook County Jail, where they could spend as much time in private as they needed to prepare. Fox never kept that promise, and because petitioner had only Fox's beeper number*fn7 and could not receive calls at the jail, he was unable to call Fox directly. Petitioner's sister, Agnes Eloby, testified at the habeas hearing that she left numerous messages requesting Fox to visit petitioner, as well as to discuss other matters relating to the defense, to no avail.

It is clear to this court that Fox met with the petitioner no more than twice in the bullpen for several minutes each, and engaged in virtually no pretrial preparation. Had he taken the time and made the effort to prepare his case, Fox would have understood the nature of petitioner's defense theory — something his testimony at the habeas hearing demonstrated he still does not understand. For example, petitioner's and Ms. Gray's testimony conflicted sharply on petitioner's conduct when he drove Ms. Gray to his home. According to Ms. Gray, she was violently sexually assaulted three times after they pulled into the garage and before petitioner forced her, naked and crying, to go into the house. Yet, her clothes were not seriously damaged and she had no marks, bruises, or other evidence of physical attack.

Most importantly, there was an eyewitness who saw and spoke to petitioner when he arrived home with Ms. Gray. William Wheat (a decorated veteran and currently a federal firefighter, whom this court found to be credible) testified at the habeas hearing that he saw petitioner pull into the garage with a young woman (whom Wheat did not know) in his car, and exit the garage after a minute to a minute and a half. Wheat saw petitioner walk to the front of the house followed by the young woman, who was dressed normally. According to Wheat, petitioner came to the curb outside his front porch to chat with Wheat for approximately four minutes, while the young lady leaned against the porch bannister. There was nothing unusual about petitioner's or young lady's demeanor.

Wheat's testimony thus contradicted Ms. Gray's in a number of material respects. According to Wheat: (1) the time the couple spent in the garage was not nearly enough to have permitted petitioner to repeatedly sexually assault Ms. Gray which, according to her, lasted at least 13 minutes; (2) Ms. Gray was not naked except for a short coat, as she had testified, nor was she carrying her clothes; (3) Ms. Gray was not lead by the arm or crying; to the contrary, Ms. Gray's demeanor and actions were normal, unlike someone who had just been kidnaped and repeatedly sexually assaulted; and (4) petitioner's conduct and demeanor were not that of someone in the midst of a violent abduction and sexual assault.

It is uncontested that Wheat called Fox and offered to testify for petitioner, explaining that he had seen petitioner with the alleged victim as the couple arrived at petitioner's house on the night in question. Yet, Fox never followed up or asked Wheat to give a statement, and never called Wheat as a witness (although he had put Wheat's name on his witness list). This is sadly consistent with Fox' nonchalant and unprofessional attitude about his representation of petitioner throughout the case.

There were several other witnesses whom Fox failed to call. Jay Pierre Canty filed an affidavit in the habeas proceedings, stating that he called petitioner at his home the night of the incident and held a 25 minute telephone conversation with him. Petitioner's mother (according to her affidavit) recalls receiving the telephone call from Canty while petitioner was in the basement with a woman, and further recalls petitioner coming upstairs to take the call. The testimony of these witnesses describes conduct by petitioner that is inconsistent with the notion that he was in the midst of committing an abduction and sexual assault when he received this ...

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