The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
*fn1 At the time he filed his petition, Richardson was incarcerated at
Pontiac Correctional Center and thus named Pontiac's warden, James M.
Schomig, as respondent. Richardson was subsequently transferred to
Stateville Correctional Center. Stateville's warden, Kenneth R. Briley,
is substituted as the respondent.
MEMORANDUM OPINION AND ORDER
In May 1982, Floyd Richardson was charged with the April 1, 1980
armed robbery and murder of George Vrabel, a clerk at Twin Food and
Liquors on the south side of Chicago. Richardson was convicted by a jury
and was sentenced to death by the trial judge after waiving his right to
a jury at the penalty phase of his trial. It took Richardson a full
eighteen years to exhaust Illinois' appeal and post-conviction process.
His death sentence was commuted on January 2003 to a sentence of life
without parole.*fn2 Today the Court grants Richardson's petition for a
writ of habeas corpus, finding that
his conviction was tainted by intentional deception on the part of
the prosecution that successfully tricked Richardson into deciding not to
call a key eye witness who would have said that Richardson was not the
man who robbed and murdered George Vrabel.
At 10:00 p.m. on April 1, 1980, a man entered Twin Foods and Liquors
located at 2251 East 79th Street in Chicago, fatally shot store clerk
George Vrabel, and escaped out the store's front door. Four nights later,
on April 5, 1980, a man robbed a tavern located approximately one mile
from Twin Foods. The robber shot and wounded tavern owner Thomas
Fitzpatrick and fled.
Over two years later, on May 4, 1982, Chicago police officers responded
to a call regarding a robbery in progress at 1640 East 79th Street. They
arrested Richardson, who was seen near the scene of the robbery and
matched the description of the suspect. After Richardson's arrest,
detectives reopened the investigation into the Vrabel murder. Detectives
John Solecki and Joseph DiGiacomo assembled a series of photographs of
men roughly fitting the description of the suspect in Vrabel's murder,
including Richardson's picture in the photo array. The detectives then
showed the photo array in black and white and later in color
to witnesses of the two 1980 robberies. Some of the witnesses
also viewed a line-up. Several witnesses identified Richardson as the
perpetrator of the April 1980 robberies, and Richardson was charged with
the murder of George Vrabel.
In April 1984, Richardson stood trial before then-Circuit Court of Cook
County Judge George Marovich and a jury for the Vrabel murder and armed
robbery. The prosecutors were Assistant State's Attorneys Henry Lazzaro
and Jack Hynes, and the defense attorneys were Assistant Public Defenders
Ronald Babb and Joseph McElligott.
Store clerk Shirley Bowden testified that at approximately 10:00 p.m.
on April 1, 1980, she was working at Twin Foods when she noticed a man
enter the store. The store was empty, except for five clerks and one
other customer. Bowden testified that she noticed the man because, though
it was not cold outside, he was "huddled up" with his coat collar turned
up. The man walked within four feet of Bowden as he made his way back
into the liquor department where George Vrabel worked as a clerk. Bowden
then heard a shot, followed by the warning, "Stay down mother f----r.
This is a stickup. Stay down." Bonnie Williams, another employee of the
store, testified that she was told someone was robbing the store and then
ducked behind the counter, getting up when she heard a shot. Both women
looked toward the liquor department in time to see a man taking money out
of the cash register. The man fled the liquor department and ran out the
front door of the store, passing both Bowden and Williams. After the
gunman left, Bowden contacted the police and went to the liquor
department. She found Vrabel lying on the floor bleeding.
Bowden identified Floyd Richardson as the individual who committed the
April 1, 1980 robbery and murder. She had not previously viewed a lineup
or photo array. She stated that prior to April 1, she had seen Richardson
in the neighborhood, though she conceded on cross examination that she
had not reported that when interviewed by the police. Bonnie Williams
testified that in the summer
of 1982, police detectives came to her home and showed her a set of
black and white photos. She identified Richardson as the person who ran
out of Twin Foods in April 1980. She also picked Richardson out of a
color photo array shown to her at a later date. Richardson was the only
person whose picture was in both arrays. At trial, Williams also
identified Richardson as the gunman. She testified she had seen him once
"in passing" before the murder.
The prosecution was permitted to introduce evidence regarding the April
5, 1980 tavern robbery based on ballistics evidence linking the two
crimes. Specifically, Ernest Warner, a firearms examiner for the Chicago
Police Department, testified that he examined bullets recovered from both
the Twin Foods robbery and murder and from the April 5 tavern robbery. He
concluded that the bullets all had been fired from the same gun, as they
had the same class and individual characteristics.
Thomas Fitzpatrick, the victim of the April 5 robbery, testified for
the prosecution. He stated that around 1:30 a.m. on April 5, 1980, he was
in his tavern located at 7159 South Exchange Street in Chicago,
approximately one mile from the location of George Vrabel's murder four
nights earlier. As he was standing at the cash register, a man entered
the tavern, waving a gun. The man said "this is a stickup" and jumped
over the bar, shooting Fitzpatrick in the back when he tried to run. As
Fitzpatrick lay on the ground face up, the assailant stood over him and
demanded to know where the rest of the money was, but he then departed
when Fitzpatrick told him there was no more money. Fitzpatrick testified
that in May 1982, he tentatively identified Richardson as the gunman
after viewing a photo array shown to him by police detectives. He then
viewed a lineup and positively identified Richardson as the man who shot
him. Fitzpatrick also identified Richardson in court as his assailant.
Tavern patron Ray Slagle also testified that he observed the robber on
April 5. He testified that
he picked Richardson's picture out of a photo array shown to him by
police in September 1982 and identified Richardson from an in-person
lineup on October 5, 1982. Slagle identified Richardson at trial as the
The defense called detective John Solecki as a witness. Solecki
testified that after interviewing witnesses to the Vrabel shooting, he
sent a flash message from the scene describing the suspect as having a
"full, trimmed beard."
At this point, Richardson's attorneys advised the trial judge that it
was "possible" that they had another witness, and the judge excused the
jury for a brief recess. The transcript of the trial reflects that the
following colloquy then took place:
THE COURT: Mr. McElligott and Mr. Babb, you
indicated to me that you had another
MR. BABB: Possible.
THE COURT: We will recess at this time.
(Whereupon, a short recess was taken.)
MR. LAZZARO: Your Honor, I just want to raise, on
the record, that which has occurred
in the last 20 or 25 minutes or so.
Listed in a supplemental answer to
discovery, which we gave to Counsel,
was a name of a Floyd Butler that
actually is Lloyd Butler. It's a
typographical error and his real
name is, in fact, a Leonard Butler.
He just goes by the name of Lloyd. I
have informed Counsel as to certain
statements that Mr. Butler will give
in rebuttal, if Myron Moses is
He would deny telling Mr.
Butler that shortly, within a matter
of hours after the incident, that
shortly within a matter of hours
after the incident, that the person
coming out the door was, in fact,
Floyd Richardson, and I've informed
Counsel that is the rebuttal
testimony that I expect as to Mr.
Butler. I have informed him that Mr.
Butler is, in fact, employed by the
Rosemont Police Department and they
can contact him there, if
they have any questions.
I just want the record to show
I'm, in fact, giving them that
information if, in fact, Myron Moses
is called as a witness. Is that
MR. BABB: Except, we don't intend to put him
on to deny anything. We intend to
put him on for the purpose of saying
he knew Floyd Richardson and that
was not Floyd Richardson that came
out of there with a gun.
THE COURT: At which point, the cross
MR. LAZZARO: Would be as to what he spoke to Mr.
Butler, and I want the record to
reflect that is the information that
has been given to me by Mr. Butler.
MR. BABB: And also, to be fair, Mr. Moses has
been confronted with that, in our
presence, and he denies that he said
that to Mr. Butler, who is a brother
of his girlfriend.
MR. LAZZARO: This is in the nature of further
discovery. The believability, the
voracity [sic] is for the jury.
THE COURT: It's for somebody other than those
of us who are in the room.
MR. BABB: We are simply not going to put him
on today. We want to talk to Mr.
THE COURT: What do you want me to do as far as
this jury is concerned?
MR. BABB: Send them home.
Trial Tr. 631-33.*fn3
The trial judge recessed the trial for the
The next morning, following a conference regarding jury instructions,
the defense called
Richardson's mother to testify; she stated that Richardson never
had a full beard, only a mustache and a goatee. The defense then rested
without calling any additional witnesses. The record does not reflect any
further discussion regarding Myron Moses, Leonard Butler, or the previous
day's colloquy about them.
The jury found Richardson guilty of murder and armed robbery.
Richardson had waived his right to a jury at the penalty phase. The
prosecution offered evidence regarding Richardson's two prior convictions
for armed robbery, as well as his prior convictions for felony theft,
possession of a controlled substance and unlawful use of a weapon. The
prosecution also offered evidence regarding seven arrests on charges that
were subsequently dismissed. It also offered evidence regarding the May
4, 1982 attempted robbery committed by Richardson that had led to his
arrest. Finally, the State presented evidence that Richardson had struck
a correctional officer while incarcerated.
The defense offered mitigation evidence via testimony from Richardson's
common law wife and his mother. Richardson's mother testified that after
her husband's death when Richardson was a teenager, he helped look after
his brothers and sisters. Richardson's wife testified that he loved her
and that he tried to make a better life for her and their two children.
Richardson also took the stand and denied shooting either Vrabel or
After hearing the evidence, on May 10, 1984, the trial judge imposed a
sentence of death. Richardson's conviction and sentence were affirmed by
the Illinois Supreme Court on direct appeal in 1988, People v.
Richardson, 123 Ill.2d 322, 528 N.E.2d 612 (1988), and his petition
for writ of certiorari was denied by the United States Supreme Court in
March 1989. Richardson v. Illinois, 489 U.S. 1100 (1989).
Post Conviction Proceedings
On January 7, 1991, Richardson filed a timely petition for relief
pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1.
In the petition, Richardson alleged that his trial counsel had rendered
ineffective assistance by, among other things, failing to object to the
prosecution's use of its peremptory challenges to excuse prospective
jurors who were black, failing to call Myron Moses to testify that
Richardson was not the assailant, and failing to present significant
mitigation evidence at the sentencing hearing. Richardson also raised the
peremptory challenge issue on its own merits, arguing that the
prosecution had violated Batson v. Kentucky, 476 U.S. 79 (1986).
He also alleged that his appellate counsel had been ineffective for
failing to raise various points on direct appeal. The trial court
dismissed the petition in March 1997 in a lengthy written order but
without holding an evidentiary hearing.
On appeal to the Illinois Supreme Court, Richardson raised the
Batson issue and claims regarding his counsel's effectiveness
with regard to sentencing. His only mention of his other claims was in
the form of a generalized argument that the trial court had erred in
dismissing the petition without holding a hearing. The Illinois Supreme
Court affirmed the trial court's ruling in 2000, People v.
Richardson, 189 Ill.2d 401, 721 N.E.2d 362 (2000), and later that
same year, the United States Supreme Court denied Richardson's petition
for certiorari. Richardson v. Illinois, 531 U.S. 871 (2000).
Federal Habeas Corpus Petition
New counsel were appointed to represent Richardson for the purpose of
filing a federal habeas corpus petition. In conducting their pre-filing
investigation, counsel interviewed Richardson's trial
attorneys regarding their decision not to call Myron Moses to
testify. However, neither Babb nor McElligott had retained any notes or
records from the trial, the case file had been lost during the appeals
process, and neither recalled the circumstances of their decision not to
Counsel sent an investigator to interview Leonard Butler to determine
what he could recall about his role as a potential rebuttal witness for
the prosecution at Richardson's trial. Butler was located and confirmed
that he is the brother of Annette Butler, Myron Moses' then girlfriend.
Butler informed the investigator, however, that he had never discussed
the Richardson case with prosecutors or defense counsel, and he denied
ever hearing Moses identify Richardson as the Twin Foods perpetrator.
Counsel also located Myron Moses as part of their pre-filing
investigation. Moses reiterated that he had seen the assailant flee Twin
Foods on April 1, 1980, that he knew Floyd Richardson, and that
Richardson was not the man he saw. Moses also stated that he had never
told Leonard Butler that the man he saw leaving Twin Foods was
In February 2001, Richardson petitioned this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his petition, Richardson
asserted eight claims. First, he alleged that the prosecution had engaged
in intentional misconduct violative of his due process rights by falsely
telling the court and defense counsel that Leonard Butler had information
that would impeach the exculpatory testimony of Myron Moses were Moses
called to testify. Second, he alleged that his trial counsel had rendered
constitutionally ineffective assistance by deciding not to call Moses
without first investigating the prosecution's claims regarding Butler.
Third, Richardson asserted that the eyewitness identifications presented
by the prosecution were produced by unduly suggestive procedures in
violation of his due
process rights. Fourth, Richardson alleged that the prosecution had
improperly used its peremptory challenges in a racially discriminatory
manner. Fifth, he alleged that the prosecution's introduction of evidence
about the April 5, 1980 armed robbery rendered the trial unfair. Sixth,
Richardson alleged that his trial counsel had rendered ineffective
assistance at the penalty phase by failing to investigate and present
significant mitigating evidence. Seventh, he asserted that his appellate
counsel rendered ineffective assistance on direct appeal by failing to
raise various issues; Richardson later withdrew this claim. Finally,
Richardson asserted that the Illinois death penalty statute was
unconstitutional; this claim was later rendered moot by the commutation
of his death sentence.
Richardson supported his petition with several affidavits, all obtained
by his appointed counsel in early 2001. Myron Moses stated, in substance,
that he knew Richardson, he had seen the Twin Foods robber flee the
store, and the man was not Richardson. Moses also stated that he had
never told the police that the man could be Richardson and had never
tentatively or positively identified Richardson as the offender, either
from photographs or in a lineup. Moses also stated that "[a]t no time did
I ever tell Leonard Butler that the person who ran out of Twin Liquors
[sic] was Floyd Richardson." He stated that he had been able and willing
to testify at Richardson's trial.
Richardson also submitted an affidavit from Leonard Butler. Butler
stated that he was formerly employed by the Rosemont Police Department
but said that he had never gone by the name "Lloyd" or "Floyd." He
recalled the Chicago police coming to his home to show his sister a photo
array. Butler stated that Moses, his sister's boyfriend at the time, had
never told him (Butler) that Floyd Richardson was the person he had seen
running from the liquor store. Butler also swore that he had never told
prosecutors or the police that Moses had said any such thing. Indeed,
Butler said, he was never
spoken to by a prosecutor; rather he had talked only to the police.
Butler stated that neither Richardson's defense attorneys nor an
investigator had ever spoken with him.
Richardson stated in an affidavit that he had understood his attorneys
were planning to call Moses as a defense witness. But when it came time
for Moses to testify, one of Richardson's attorneys (he believed it was
McElligott) told him that if Moses testified, the prosecution would call
Annette Butler's brother, a policeman, to testify that he had heard Moses
tell Annette that it was Richardson he had seen fleeing the store.
Richardson stated that he had told counsel that he thought they should
call Moses anyway, but that counsel had stated that it would "look bad"
for the defense if Leonard Butler were called in rebuttal. Richardson,
relying on counsel's advice, agreed that Moses should not be called. He
stated that his attorneys had not told him whether they had interviewed
Leonard Butler or caused him to be interviewed.
Trial counsel Ronald Babb and Joseph McElligott both submitted
affidavits stating that even after attempting to refresh their
recollections, they could not recall why they had not called Moses to
testify, whether they had spoken to Moses, or ...