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June 26, 2001


The opinion of the court was delivered by: Kennelly, Judge



Tod Harding, his brother Gerald Harding and his cousin James Harland hatched a plan to steal guns from John Miller, the Hardings' uncle. The plan went awry, however, when they discovered that George Miller, Uncle John's mildly retarded son, was home when they got there. George was shot at least ten times and died. All three were eventually charged with murder, felony murder and residential burglary. Tod Harding's case was tried to a jury in Rock Island County, and Harland, who was still under indictment, testified against him. Specifically, Harland testified that he was outside loading stolen guns into the car when he heard shots and then saw Harding emerge from the house with blood on his hands, saying that he had been forced to shoot his cousin because he had recognized him and Gerald. On cross examination, Harding's attorney specifically asked Harland if he had asked for or been promised anything in exchange for his testimony against Harding; Harland testified that he had not.

In addition to Harland, the state presented several witnesses who purchased or received from Harland guns they later learned were stolen from the Millers' house; for the most part, those witnesses said that Tod Harding had been with Harland when he delivered the guns, but that Harland initiated and handled the deals. The state also presented the crime scene investigators and technicians who painted a picture of what went on at the Millers' house the night of the burglary; none of these people said anything that would suggest that Tod Harding had actually been the one to pull the trigger on his cousin, and none of the state's forensic evidence established that Harding had even been in the Millers' house that night. In other words, Harland was the only witness to put Harding at the scene, he was the only witness to give Harding a motive to kill George Miller, and he was the only witness to say that Harding had committed the murder for which all three men were charged.

Harding testified in his own defense; he stated that on the night of the burglary he did not even go to the Miller's house, he did not shoot George Miller, and he honestly had no idea who did shoot him.

In his closing argument, the prosecutor was forced to concede that Harland was an important witness for the state. He argued that the jury should believe Harland because he had nothing to gain from testifying against Harding. The jury convicted Harding of all three counts, and the trial judge sentenced him to natural life on the murder count and an extended term of twenty-five years on the burglary count.

After Harding's trial, Harland concluded a deal under which the murder charges against him were dismissed, he pled guilty to residential burglary and concealing a homicidal death, and he was sentenced to ten years in prison. R. at C247, C250-51.

Harding appealed only his sentence; the Illinois appellate court reduced the burglary sentence to fifteen years and affirmed the judgment as modified. Harding filed a petition for leave to appeal to the Illinois Supreme Court, which the court denied. Harding then filed a pro se petition for post-conviction relief, arguing that he was deprived of a fair trial because the prosecutor knew Harland was lying when he testified at trial that he had not been promised anything in exchange for his testimony, yet he failed to correct those lies. Harding also argued that he was denied a fair trial because the prosecution cut a deal with Harland but failed to disclose that fact, the judge denied his change of venue request, and his attorney was ineffective. The court appointed a lawyer to represent Harding in post-conviction proceedings, and his lawyer filed an amended petition arguing that his trial counsel had been ineffective in failing to interview and call certain witnesses who could have undermined Harland's credibility; the amended petition also reiterated that the prosecution failed to disclose its deal with Harland. To support his amended post-conviction petition, Harding introduced three affidavits, only one of which — that of James Harland — is relevant for purposes of Harding's habeas corpus petition. In his affidavit, Harland stated that before he testified against Harding, he "discussed my case with my attorney and the prosecutor" and that "during those discussions . . . I was reassured that my testimony would benefit me in my case." R. at C232 (Amended Post-Conviction Petition, Exhibit C).

The state answered the petition, denying the existence of any agreement with Harland and submitting affidavits from Harland's attorney and the prosecutor in both the Harding and the Harland cases. R. at C235, C245-51.*fn1 Harland's attorney stated that he had discussed the case with his client and agreed that the evidence might be sufficient to convict Harland of murder. R. at C 196. He stated that he "spoke with [the prosecutor] in an attempt to obtain a negotiated disposition in James Harland's case in exchange for his testimony," but no "negotiation" was "reached" prior to trial because the prosecutor refused to negotiate. R. at C 197. Nevertheless, Harland's attorney stated, he "advised Harland to give full cooperation and testimony as that testimony would mitigate Harland's accountability for the charge of murder and would serve as a substantial mitigating factor in the disposition of the case." Id. He stated that, on his advice, Harland testified against Harding "without benefit of any promise or plea negotiation other than the knowledge of his cooperation will be taken into account by the Court and the State's Attorney when his cases were eventually disposed." Id. For his part, the prosecutor stated that Harland's attorney contacted him about "the possibility of a plea agreement and reduced charges for James Harland in exchange for his testimony against co-defendants." R. at C193. The prosecutor stated that he "did not engage in plea negotiations at that time, but instead informed James Harland through his Attorney that if Harland was not the person who physically fired the gun and he provided truthful testimony against co-defendants, that his cooperation would be considered by both the State and the Court." Id. As we have noted, after Harland testified, the prosecutor dismissed the murder charges against him and agreed to a ten-year sentence on lesser charges. Id. at Cl94.

The state moved for summary judgment on the claim concerning its failure to disclose any deal with Harland, and the trial judge granted that motion. The court explained its reasoning in a supplemental opinion:

Defendant contends that had the jury known James Harlan [sic] expected

something in return for his testimony, they would have reached another verdict. The Court indicated in its oral remarks that I considered it inconceivable that the jury would not have figured that out. The closing remarks of Attorney Jerry Schick Harding's defense attorney at trial] clearly indicate that James Harlan, in giving his testimony had something to gain. R. at C209.

Harding, still represented by counsel, appealed the trial court's summary judgment decision, arguing that the court erred when it refused to grant him a new trial because of the state's failure to correct Harland's perjured testimony. After reviewing Harland's trial testimony and the affidavits submitted in post-conviction proceedings, the appellate court affirmed the denial of post-conviction relief, concluding that "the State's Attorney's ephemeral promise and Harland's vague testimony" were not enough to support a conclusion that "the State obtained the defendant's conviction by knowingly using perjured testimony." Exhibit S to ...

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