United States District Court, N.D. Illinois
February 9, 2004.
FLOYD RICHARDSON, Petitioner,
KENNETH R. BRILEY, Warden, Pontiac Correctional Center, Respondent.[fn1]
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.
Evidence at Trial
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 whether anyone on the
defense side had interviewed Leonard Butler.
In answering Richardson's petition, respondent asserted that
Richardson's prosecutorial misconduct claim had been procedurally
defaulted and, in any event, lacked merit because the prosecutor had not
made a misrepresentation and because, respondent argued, governmental
misconduct does not constitute an independent basis for habeas corpus
relief. Respondent argued that Richardson had procedurally defaulted his
claim of ineffective assistance of trial counsel because he had not
included it in his post-conviction appeal; that Richardson was not
entitled to an evidentiary hearing
on the claim because he had failed to develop the factual predicate
for the claim in state court; and that the claim was lacking in merit in
Respondent asserted that the state court's rejection of the claim
regarding identification procedures was based on a reasonable application
of Supreme Court precedent. He argued that the Batson claim was
procedurally defaulted; the claim regarding the admission of other crimes
evidence had been procedurally defaulted and, in any event, lacked merit;
and the claim of ineffective assistance of counsel at sentencing was
likewise without merit.
The Court determined, over respondent's objection, to hold an
evidentiary hearing on Richardson's claims of prosecutorial misconduct
and ineffective assistance of trial counsel at the trial's guilt phase.
At the hearing, the Court heard testimony from Richardson, Myron Moses,
Leonard Butler, Annette Butler, Pearl Cox (a store clerk who witnessed
the Vrabel shooting), lead trial prosecutor Henry Lazzaro, former
detective John Solecki, defense trial counsel Ronald Babb, and Thomas
Peters, Richardson's attorney on his state post-conviction petition and
the appeal from the denial of that petition.
Peters, an experienced criminal defense and Plaintiff's civil rights
attorney, said that in the course of his work on Richardson's
post-conviction case he had reviewed the transcript of Richardson's
trial, including the colloquy about Moses and Leonard Butler. He said
that it had never occurred to him to doubt the veracity of the
prosecutor's representations about Butler.
Myron Moses, now forty years old and the manager of a car dealership in
Atlanta, Georgia, testified at the hearing. Moses stated that he knew
Floyd Richardson prior to the time of the Twin
Foods robbery because they lived in the same neighborhood. At the
time of the robbery, Moses was eighteen years old and working for his
father at an optometry shop. He testified that on April 1, 1980, he and
his girlfriend Annette Butler were walking toward Twin Foods when they
heard gunshots. Moses saw a man run out of the store; he had the
opportunity to observe the man's face before he veered away. The man was
not Floyd Richardson; Moses said that he had been prepared to testify as
such at Richardson's trial. Moses testified that at the request of the
police, he had assisted them in preparing a composite sketch of the
Moses stated that about two years after the robbery, he was contacted
by the prosecutor's office and, along with Annette Butler, was taken to a
police station to view a lineup. Richardson was in the lineup. Among the
exhibits admitted at the hearing was a report signed by detectives
Solecki and DiGiacomo in which they represented that Moses, Annette
Butler, and store employee Pearl Cox "all made tentative identification
of Floyd Richardson" at the lineup. Moses testified, however, that he did
not identify anyone from the lineup either positively or tentatively as
the person he saw fleeing Twin Foods, and on cross examination he also
denied telling the police that any of the people in the lineup looked
similar to the perpetrator. Moses acknowledged that when he saw the
lineup, he did not tell the police that he recognized Richardson; he
stated, however, that he had been asked only if he saw the robber, not if
he recognized any of the lineup participants. Moses said he had spoken
with Richardson's defense attorneys at some point and expected to testify
at his trial. He did not know why he was not called as a witness.
Floyd Richardson also testified at the hearing. Richardson stated that
after the trial had been in progress for two or three days, attorney
McElligott spoke with him in the courthouse lockup.
McElligott stated that if they called Myron Moses to testify, the
prosecution would call Moses's "brother in law" (Leonard Butler), who
would testify that he had overheard Moses tell Annette Butler that it was
in fact Richardson he had seen come out of the store. Though Richardson
still wanted to call Moses, he ultimately agreed with McElligott's advice
that it would hurt his case if Moses were impeached by Butler. Richardson
initially stated that he believed that his conversation with McElligott
had taken place on the same day as the prosecutor's statement in court
about Leonard Butler, and that he did not recall speaking with defense
counsel about Butler again the next day. On further questioning, however,
Richardson indicated uncertainty about the timing of the conversation
Richardson's counsel also called Leonard Butler to testify at the
hearing. At the time of the hearing, Butler was forty-four years old and
working for the Defense Department as an aviation technician with a
security clearance, assisting in training members of the National Guard.
Butler said that his nickname was "Bud" and that he had never gone by
Lloyd or Floyd. He initially heard of the Twin Foods robbery/murder in
April 1980, perhaps the day after it occurred. A couple of days later,
police officers had come to his parents' house to show photos of
potential suspects to his sister, Annette Butler. The police also asked
him if he recognized anyone, and he said no. Butler stated that from 1984
through 1986, he had worked for the Rosemont Police Department as a
part-time auxiliary officer.
Butler testified that Myron Moses never told him that Richardson was
the man he saw running from the crime scene, that he had never overheard
any conversation between Moses and Annette to that effect, and that
Annette had never told him that Moses had said anything along those
lines. Butler also stated that he never told the police or prosecutors
that Moses had said he had seen Richardson.
Butler said he had reviewed the excerpt from the transcript of
Richardson's trial in which the prosecutor had made representations about
what Butler would say; he denied making the statements attributed to him.
Butler said he had not been interviewed by Richardson's defense counsel
in 1984. On cross examination, he stated that he had never spoken to
attorneys for either side in Richardson's criminal case and did not
recall the names of the prosecutors.
Butler admitted that in the early 1990's, he had submitted three
monthly vouchers claiming unemployment compensation in which he said he
was still unemployed even after he had found work. He was prosecuted for
making false statements, pled guilty, and paid restitution. In 2001 he
pled guilty to carrying a firearm, which he said had occurred when he was
returning home from a shooting range.
Annette Butler also testified at the evidentiary hearing. She testified
that she had not seen the face of the man who ran out of Twin Foods.
Butler said that she had never told anyone that she could identify the
perpetrator, and that she had never identified anyone either positively
or tentatively. On cross examination, Butler denied seeing a lineup in
1982 and denied going to the police station with Moses in 1980.
Pearl Cox, a clerk at Twin Foods at the time of the robbery and
currently a customer service representative for Blue Cross/Blue Shield,
testified that she had not gotten a good look at the offender but rather
saw only his gun and then dropped to the floor. Cox stated that she had
seen a lineup but, contrary to the police report prepared by detectives
Solecki and DiGiacomo, she said she had never identified anyone as the
man she saw at the store, either positively or tentatively.
Respondent called Henry Lazzaro, the lead prosecutor at trial, to
testify at the hearing. At the time of the hearing, Lazzaro was
employed by the Defense Department's Office of General Counsel.
Lazzaro Hrg. Tr. 2. Lazzaro testified that he had
interviewed Moses, Annette Butler, and Pearl Cox. He stated that
according to police reports, Moses had made a tentative identification of
Richardson; Lazzaro claimed that he discussed this with Moses
when he interviewed him around six months before Richardson's trial.
Id. 5-6. Upon further questioning, Lazzaro said that
when he brought this up with Moses, he was "uncooperative" and denied
identifying anyone. Id. 25.
Lazzaro stated that he did not recall how he became aware of
Leonard Butler, but that he likely obtained the name a number of months
before trial, through interviews with other witnesses, as someone who had
knowledge about the case. Id. 6-7, 23-24. Lazzaro
acknowledged that he had identified Butler as "Floyd" Butler on his
supplemental answer to the defendant's discovery requests filed with the
court. Id. 7. Lazzaro asserted that at some point
before filing the supplemental answer he spoke to Butler by telephone,
and he claimed Butler used the name Floyd when they spoke. Id.
8, 22. He said that he spoke with Butler by phone again shortly before
trial, and that Butler (who, Lazzaro said, advised at this point
that his name was Leonard) told him he had spoken with Moses, who had
said that Richardson was the perpetrator. Id. 8-9, 23, 29.
Lazzaro acknowledged that he was aware that his representation
regarding Leonard Butler's possible rebuttal testimony might lead the
defense not to call Myron Moses to testify. Id. 30. When asked
why Butler's name was not disclosed to the defense prior to the
supplemental discovery response served just before trial,
Lazzaro testified that it was simply a matter of housekeeping
and that he had added Butler's name to the list of possible witnesses at
that point to ensure there was no problem if he needed to call Butler to
testify. Id. 32. Lazzaro said that his normal practice
would have been to make notes of his conversation with a possible witness
like Butler. Id. 33. He had been
advised, however, that the prosecution's file from the case could
not be found. Id. 33-34.
Retired detective John Solecki, who had led the investigation of George
Vrabel's murder, also testified on behalf of respondent. Consistent with
a report he had prepared that was introduced at the hearing, Solecki
testified that Moses, Annette Butler, and Pearl Cox had viewed a lineup
and had made tentative, though not positive, identifications of
Richardson as the murderer. As to Pearl Cox, Solecki conceded (on direct
examination) that she said she had "ducked" when she saw the man with the
gun. On cross examination, Solecki was shown his report of the interview
with Cox shortly after the murder; it stated that Cox reported that she
"fell to the floor" after the offender told people not to move, and it
said nothing about her seeing the man's face.
Solecki also claimed that Moses had identified Floyd Richardson from a
photo array prior to seeing the line-up but had wanted to see a physical
line-up. Upon further questioning, Solecki admitted that this purported
photo identification by Moses was not mentioned in any police reports.
Solecki also conceded that in a bulletin he had sent out the night after
the murder, he reported that Moses had said he had never seen the
Ronald Babb, one of Richardson's trial attorneys, testified that he did
not recall the circumstances surrounding the decision not to call Moses
at trial. He acknowledged that at the time of Richardson's trial, the
public defender's office had investigators and other resources at its
disposal to interview witnesses if the need arose during trial.
The Court first elaborates on its decision, over respondent's
objection, to hold an evidentiary
hearing on Richardson's prosecutorial misconduct and ineffective
assistance of trial counsel claims. A provision added to § 2254 by
the Anti-Terrorism and Effective Death Penalty Act (AEDPA) states that a
federal court may not hold an evidentiary hearing on a claim "[i]f the
[habeas corpus] applicant has failed to develop the factual basis of a
claim in State court proceedings," with certain exceptions (including
when the claim is based on a factual predicate that could not have been
previously discovered through due diligence). 28 U.S.C. § 2254(e)(2).
Section 2254(e)(2) does not preclude a hearing, however, if that failure
"cannot be attributed to something the petitioner `did or omitted.'"
Matheney v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001)
(quoting Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir. 1997)).
Indeed, "a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner's counsel." Williams v.
Taylor, 529 U.S. 420, 432 (2000).
There is no question that the factual basis for Richardson's
prosecutorial misconduct and ineffective assistance claims was not fully
developed during the state post-conviction proceedings on his case. A
fact critical to both claims is that Leonard Butler actually would not
have testified that he overheard Myron Moses identify Richardson as the
man he had seen flee Twin Foods. This fact establishes a material
misrepresentation was made by the prosecutor at Richardson's trial, which
a critical element of his due process claim, and it also provides a
crucial link in showing the prejudice necessary to his ineffective
assistance claim. Richardson did not learn that Butler's testimony had
been misrepresented until long after his opportunity to develop the
record in state court had passed and thus did not present that evidence
in connection with his state post-conviction petition.
If Richardson's post-conviction counsel had interviewed Butler, they
presumably would have
presented the resulting evidence to the state courts, and the
record would have been developed more fully. But "[t]he relevant inquiry
is . . . not simply whether the petitioner theoretically could have
discovered the evidence while he was still in the state forum, but
whether he made appropriate efforts to locate and present that evidence
to the state courts." United States ex rel. Hampton v. Leibach,
347 F.3d 219, 240 (7th Cir. 2003). The failure of Richardson's counsel to
present the evidence regarding Leonard Butler was not fairly attributable
to any lack of diligence on Richardson's part; rather, it resulted
directly from his and his counsel's reliance on the prosecutor's false
representations about Butler.
Under the circumstances, the factual basis of Richardson's current
claims was not reasonably available to him during the state proceedings,
and he therefore did not "fail" to develop his claims as that term is
used in § 2254(e)(2). The statute does not bar a hearing on an
undeveloped claim when a prosecutor has concealed facts critical to that
claim; as the Supreme Court put it in Williams v. Taylor, "a
person is not at fault when his diligent efforts to perform an act are
thwarted, for example, by the conduct of another or by happenstance.
Fault lies, in those circumstances, either with the person who interfered
with the accomplishment of the act or with no one at all."
Williams, 529 U.S. at 432. In this case there is no basis to
conclude that Richardson's post-conviction counsel were negligent or
anything less than diligent; rather their further inquiry regarding the
Myron Moses / Leonard Butler matter was effectively thwarted by their
reasonable reliance on the veracity of the prosecutor's
misrepresentations at trial.
The Court makes the following findings of fact based on the testimony
evidence and our assessment of the credibility of the witnesses
after considering all the evidence and observing the witnesses as they
testified. To the extent particular factors are mentioned in the ensuing
discussion, they are not intended to be an exhaustive rendition of what
the Court relied upon in finding as it did demeanor, for example,
is a largely intangible factor difficult to convey in written form. In
making these findings, the Court has accounted for the fact that the
pertinent events took place twenty years ago or more, a factor which
obviously has a significant bearing on each of the witnesses' ability to
recall the pertinent events.
The Court is persuaded that Moses and Annette Butler had at least as
good as, and likely a better, opportunity to see the offender than the
persons who identified Richardson at the trial including both
those from the April 1, 1980 murder and robbery and those from the April
5, 1980 robbery. The persons who saw the offender in the store and the
tavern while the robberies were in progress were subject to several
adverse factors that did not affect Moses or Annette Butler in
particular, the fact that the offender was visibly wielding a gun, and,
at Twin Foods, was shooting the gun. Such factors can have a tendency to
divert the attention of a witness from the face of the offender; these
factors also led some of the Twin Foods witnesses, quite reasonably, to
take cover, arguably preventing them from extended observation of the
offender's face. Indeed the police evidently believed that Moses and
Butler had the best opportunity of the various witnesses to see the face
of the Twin Foods robber: their reports reflect that they asked Moses and
Butler, but not the other witnesses, to assist in preparing a composite
sketch of the perpetrator.
The Court is convinced of the credibility of Moses' testimony that he
got a good look at the fleeing offender and that the man was not Floyd
Richardson; that he made no identification, tentative or
otherwise, of Richardson from photographs or a lineup; and that he
never said or suggested to anyone, including Annette Butler and Leonard
Butler, that Richardson was the man he had seen. The hint from respondent
that Moses may have had some motive to fabricate, barely breathed by
respondent to begin with, is entirely unconvincing, and we reject it.
There is nothing to suggest that Moses was anything more than an
acquaintance of Richardson, and as a bystander, he had no stake
whatsoever in the investigation and prosecution of the robbery. There is
no plausible reason why Moses would have misrepresented to the police on
April 2, 1980 that he had never before seen the perpetrator, and no
indication that he might simply have been mistaken and later (such as, at
the time of the lineup) realized his mistake. Moses, a completely
disinterested person in both the underlying prosecution and the present
case, likewise has no reason or motive to have lied in his testimony
before this Court.
Annette Butler was considerably less believable. In particular, her
denial that she had seen the face of the man who ran out of Twin Foods is
rather emphatically undercut by the contemporaneous police reports
indicating that she had returned to the store and reported that she had
seen the offender run out. And there is no reason to disbelieve the
police report to the extent it indicated that she had viewed a lineup (as
opposed to whether she made an identification), which Butler likewise
denied. Butler's denials likely are attributable largely to the desire
not to get "involved." This appears to have been the case with Butler
even in 1980, when she failed to call the police to report what she
observed even after telling a "Mr. Morgan" (likely a store employee) that
she would do so.
The Court found Pearl Cox credible in her testimony that she
essentially had no real opportunity to see the offender's face and that
although she viewed a lineup, she made no identification, tentative or
The Court found former detective John Solecki to be utterly lacking in
credibility based both on his demeanor and the content of his testimony.
Solecki's previously referenced police report stating that Moses, Annette
Butler, and Cox all tentatively identified Richardson from a lineup
appears to have been a complete fabrication; Moses and Cox were both
thoroughly credible in their denials that they had done anything of the
kind. In particular, the notion that Pearl Cox could have made any sort
of an identification, even a tentative one, was almost
demonstrably untrue based on her account of her actions during
the robbery, as memorialized in the contemporaneously prepared police
reports. At the hearing, in what was a fairly obvious effort to buttress
his other testimony and the outcome of his investigation, Solecki
attempted to embellish these purported "identifications" even further by
making up a nonexistent photographic identification by Myron Moses. Even
giving Solecki the benefit of the doubt, the Court is unable to attribute
this to mistake, poor memory or the passage of time; it was, quite
simply, an untruth.
The Court finds, as indicated earlier, that Myron Moses never told or
suggested to Annette Butler, Leonard Butler, or anyone else that Floyd
Richardson was the man he had seen. Leonard Butler's denial that he had
heard Moses say anything of the kind and his denial that he had told
police, prosecutors, or anyone else that he had heard this, were likewise
believable. A number of years after the trial of the Vrabel murder,
Butler engaged in acts that do not speak well of his general credibility:
specifically, he made false statements to obtain three months of
unemployment benefits. But his testimony that he had never said what the
prosecutor attributed to him at Richardson's trial was corroborated by
Moses' testimony, which, as indicated above, was thoroughly credible. And
though one could imagine the possibility that it was Butler, back in
1984, who fabricated the purported
statement by Moses, there is no believable evidence to support such
Henry Lazzaro's claim that he had spoken directly with Butler was not
credible. In this regard, the Court believed Butler's testimony that he
had no conversations with any prosecutor. Had Lazzaro actually
spoken directly to Butler as he represented at Richardson's trial, it is
highly unlikely that he would have misstated Butler's first name in the
prosecution's supplemental list of potential witnesses that he filed in
the trial court. And rather than chalking up the misstatement to
oversight, a scrivener's error, or a simple flub, Lazzaro, like
Solecki, attempted an embellishment to buttress his overall story: he
said that Butler had told him (Lazzaro) that he went by the
nickname "Floyd." Lazzaro Hrg. Tr. 7-8. This was, quite simply,
entirely lacking in credibility.*fn4 Lazzaro's statement was roughly the
equivalent of a false exculpatory statement and as such was damaging to
his credibility in the Court's eyes.
Lazzaro's overall credibility likewise was not helped by his recounting
of the events surrounding his pretrial interview of Myron Moses.
Lazzaro conceded that in that interview, Moses denied
identifying anyone as the perpetrator. Id. 25. This statement
contradicted the aforementioned police report prepared by Solecki and
DiGiacomo regarding the lineup and tended to exculpate Richardson (who
was in the lineup) in view of Moses's acquaintance with him. Yet
Lazzaro soughed this off as mere "uncooperativeness" by Moses
and did not disclose Moses' exculpatory statement to the defense
instead, he "located" Leonard Butler following an obviously an
investigative effort to undermine Moses' credibility as a potential
defense witness and then sprung Butler on the defense in the middle of
trial. Completely aside from whether Lazzaro's failure to disclose
Moses' denial of an identification was a Brady/Giglio
violation, Lazzaro's handling of this did not speak well of his
credibility as an officer of the court.
One additional matter came up during Lazzaro's testimony at the hearing
that reflected his lack of credibility. He testified about a store clerk
"who had not viewed a lineup or photographic lineup" who he decided to
call at trial to eliminate the possibility of an argument that the
lineups were suggestive. Lazzaro Hrg. Tr. 26. (This, it is clear from the
trial transcript, was Shirley Bowden her name was Shirley
Williams at the time of trial because the only other store clerk
who testified was Bonnie Williams, who said she had viewed two different
photo arrays. Tr. 553-55.) When asked shortly after this why he had not
called Annette Butler to testify at trial, Lazzaro stated:
When the clerk that I that I tes
that did not view . . . didn't see the
lineup, she took the witness stand, and it was as
dramatic a moment as you ever want to see in a
trial, quite frankly. She got on the witness
stand. She identified she pointed to Mr.
Richardson, and then I did not know the answer to
this question. I asked her: How can you be so sure
it was him? And her testimony at that point in
time was to the effect: I knew him from around the
high school or around the court, or the
neighborhood, something to that fact, I knew him.
At that point in time Mr. Richardson, in his
chair, just slid down almost underneath the table.
It was noticed by everybody in the courtroom,
including the jurors, and I did not need any
further witnesses. . . . There was nothing further
other than what I had promised in the opening
statement that I had to put on at that time.
Lazzaro Hrg. Tr. 27-28. The Court did not find this testimony
credible. First, it is unsupported by any reference in the record at
trial, most particularly in closing and rebuttal argument, where one
would expect Lazzaro to have mentioned this if it were true. Second,
Lazzaro, contrary to his claim that he needed no further witnesses,
did call other witnesses after Bowden, specifically Bonnie
Williams and two witnesses from the tavern robbery. Third, Lazzaro
testified that (like all effective trial lawyers) he
personally interviewed the witnesses on cases he handled.
Id. 13-14. Under the circumstances, the Court does not believe
that he would have asked such a significant question to Bowden on the
stand even though (as he testified) he "did not know the answer to this
question," id. 27 particularly when he knew Bowden had
told the police she had never seen the offender in the store before.
See Chicago Police Department Supplementary Report dated 4/2/80,
p. 5 ("[a]ll of the witness related that they had never seen the offender
in the store previous to this time"). Though the Court found Lazzaro
lacked credibility completely apart from this episode, this supports our
finding. It again appears that he tried to buttress his testimony by
making up an incident, perhaps one he felt could not be refuted.
As indicated above, the Court has considered the possibility that it
was Butler, not the prosecution, that made up the statement about Moses
that was attributed to him. If so, this would undercut Richardson's due
process claim. But this scenario is entirely implausible; there is no
basis to believe that Butler would have made up such a statement out of
whole cloth. He had no motive to do so that is so much as hinted at by
the evidence or by respondent. And as the Court has found, Butler's
testimony that he never attributed such a statement to Moses was entirely
Respondent characterizes the scenario posited by Richardson as
implausible and unrealistic. The Court does not agree. Lazzaro
conceded that he learned several months before trial that Moses was a
possible exculpatory witness "uncooperative," as Lazzaro
characterized it. Even though it did not disclose Moses' exculpatory
statement, it is logical to believe that the prosecution would have made
an effort to determine if it could attack his credibility. Given the
relationship between Moses and Annette Butler, it is reasonable to infer
that the trial would have led the prosecution or detectives acting at its
direction to return to her, and there to learn that Butler's brother was
a police officer. The
prosecution evidently believed that it could get away with falsely
attributing to Leonard Butler a statement that, given Butler's law
enforcement status, would undermine Moses' value as a defense witness.
Why, however, would Lazzaro have falsely attributed the
statement to Butler, if it could be so easily refuted by simply talking
to Butler? Respondent poses this question in arguing that matters
happened exactly as Lazzaro claimed. It must be recalled,
however, that Lazzaro's disclosure of Butler as a potential witness was
made literally on the eve of trial, and his disclosure of Butler's
expected testimony was made even later, as the defense was preparing to
conclude its case. Even though Lazzaro may have had no
obligation to disclose expected rebuttal testimony sooner, it is
reasonable to infer from the evidence, and the Court does infer, that he
timed the disclosure as he did with the aim of dissuading the defense
from calling Moses. Lazzaro may have believed that he could
count on inertia or laziness on the part of Richardson's defense counsel
or the fact that they had precious little time to react, and that they
would not make an attempt to interview Butler.*fn5 And even if the
falsehood were discovered, the prosecution would be no worse off than it
had been before; it could revert to attacking Moses based on the
(made-up) "tentative" identification to which Solecki was presumably
prepared to testify.
It is conceivable, though unlikely, that in making the representation
at the trial, Lazzaro was
relying on false information passed to him by Solecki or another
detective rather than on personal contact with Leonard Butler. Even if
so, however, Lazzaro's statement that he had spoken to Butler
was false and represented a material fact intended and likely to
influence defense counsel in how they dealt with the disclosure.
Due Process /Prosecutorial Misconduct Claim
Richardson's first claim is that he was denied due process of law by
the prosecutor's false representations to defense counsel and the trial
judge that he had spoken to Leonard Butler, and that Butler was waiting
in the wings to destroy the credibility of Richardson's primary defense
witness if Moses was called by the defense. For the reasons explained
below, the Court rejects respondent's argument that Richardson's claim
cannot be considered on the merits and concludes that the prosecution's
conduct deprived Richardson of due process of law.
Respondent argues that the Court may not consider Richardson's claim on
the merits because it has been procedurally defaulted. A procedural
default occurs when the petitioner fails to present a claim to the state
courts at the time, and in the way, required by the state. See, e.g.,
Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996). "As a general
rule, habeas petitioners must first raise their claims during state
proceedings." Crivens v. Roth, 172 F.3d 991, 995 (7th Cir.
1999). It is undisputed that Richardson did not raise his due
process/prosecutorial misconduct claim in state court. A habeas corpus
petitioner's procedural default may be excused, however, if the
petitioner can show cause and prejudice for his failure to raise the
claim in state court or if the default would lead to a fundamental
miscarriage of justice. See, e.g., Thomas v. McCaughtry,
201 F.3d 995, 999 (7th Cir.
2000); Steward v. Gilmore, 80 F.3d 1205, 1211 (7th Cir.
Richardson argues that he can satisfy both the cause-and-prejudice
standard and the fundamental miscarriage of justice standard. The Court
need not address the latter issue, however, for Richardson has shown
cause and prejudice. To satisfy the cause element, a petitioner must
"show that `some objective factor external to the defense impeded
counsel's efforts' to raise the claim in state court." McCleskey v.
Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)). Such factors can include a showing of
interference by government officials or that the factual basis of a claim
was not reasonably available. Id. at 494 (citing
Carrier, 477 U.S. at 488).
The Seventh Circuit has made clear that a habeas corpus petitioner
should not be punished for raising an issue for the first time in a
federal habeas petition "that he was unable to present to the state
courts because of the state's misconduct." Crivens, 172 F.3d at
995. Before trial, Crivens had requested the criminal records of the
prosecution's witnesses; the state never turned over rap sheets for the
witnesses who testified at Crivens' trial. After Crivens had exhausted
his direct and post-conviction appeals in state court, he learned that
one of the state's star witnesses had been convicted of possessing crack
cocaine with intent to deliver it and sentenced to thirty months
probation before Crivens' trial. Crivens raised a Brady claim
for the first time in his federal habeas petition, and the Seventh
Circuit found he had cause that excused his default of the claim: "his
failure resulted not from his own lack of attention or other fault, but
rather because the state did not provide the information about [the
witness's] criminal record until after the habeas petition was filed."
Id. Similarly, Richardson argues that his failure to raise his
due process claim in the state courts is attributable to the
prosecution's misrepresentations, upon which his trial and
post-conviction counsel relied.
Following the Seventh Circuit's lead in Crivens, the Court
agrees that Richardson has established cause for his procedural default.
See also, Strickler v. Greene, 527 U.S. 263, 283-84 (1999)
(conduct attributable to the prosecution that impedes counsel's access to
the factual basis for a claim is sufficient to establish cause for a
procedural default). This is so even though Richardson's counsel were
already aware that Moses had denied making the statements that the
prosecutor said Butler had overheard.*fn6 To defense counsel assessing
the issue mid-trial, Moses' denial did not preclude the possibility that
he had actually made the statement, or that Butler could credibly though
falsely testify that Moses had done so. The law of procedural default did
not require counsel in this situation to assume that the prosecution was
making it up. Even conscientious defense counsel do not have "a
procedural obligation to assert constitutional error on the basis of mere
suspicion that some prosecutorial misstep may have occurred."
Strickler, 527 U.S. at 286.
It is true that Richardson's trial, appellate, and post-conviction
counsel could have discovered the basis for the claim, as his habeas
corpus counsel ultimately did, by interviewing Leonard Butler. But to
establish cause an external factor like the prosecutor's
misrepresentations need only "impede" counsel's efforts to raise the
claim, see McCleskey, 499 U.S. at 493; it need not render it
impossible to raise the claim. See, e.g., Crivens, 172 F.3d at
997 (state's failure to disclose witness' criminal history constituted
cause for not raising Brady claim in state courts, even though
nothing prevented defense counsel from simply questioning the witness
while on the stand); see also, Amadeo v. Zant,
486 U.S. 214, 224 (1988) (evidence that a memorandum important to
petitioner's claim was buried in a large quantity of documents supported
finding that the memorandum was not "readily discoverable" if
petitioner's counsel had investigated the claim thoroughly). That is
precisely the case here; the prosecutor's misrepresentation impeded
Richardson from raising the present claim due to counsel's reliance on
the prosecutor's veracity.
To show prejudice of the sort needed to excuse a procedural default,
Richardson must show that, absent the conduct in question, there is a
"reasonable probability" that the result of the trial would have been
different absent the alleged improper conduct. See Strickler,
527 U.S. at 289. Richardson has made the necessary showing. The case
against him included no inculpatory admissions and no physical evidence
linking him to the crime; rather, it turned on whether the jury was
convinced of his guilt beyond a reasonable doubt by the testimony given
by the state's identification witnesses, Shirley Bowden, Bonnie Williams,
Thomas Fitzpatrick, and Ray Slagle. But Richardson had a highly credible
exculpatory witness ready to take the stand. Moses was prepared to
testify that he knew Richardson from the neighborhood, that he saw the
person who committed the Vrabel murder, and that the perpetrator was not
Richardson. The defense decided not to use this powerful evidence as a
direct result of the prosecutor's representation that Moses's credibility
effectively would be destroyed if he were called to testify.*fn7
The Court finds there is a reasonable probability that Richardson would
have been acquitted if he had not effectively been tricked into deciding
not to call Moses. The prosecution's identification testimony was
undoubtedly powerful, but it was not airtight. Shirley Bowden had never
identified Richardson before she saw him sitting at the defense table at
trial, and two years had passed before Bonnie Williams and Thomas
Fitzpatrick made an identification. And the testimony of both Williams
and Fitzpatrick, like that of Bowden, was subject to a significant
possibility of error based on the usual factors that can make eyewitness
identification testimony unreliable the lack of a significant
opportunity to see the perpetrator, focus on factors other than the
perpetrator's face (i.e., the gun), and so on. Moses' testimony likewise
was subject to some of these same factors (though there is no indication
that the fleeing perpetrator was visibly holding a gun when Moses saw
him), but there was significant evidence that, at least in the eyes of
the police, he and Annette Butler had a much better opportunity to see
the offender than did the witnesses who had been inside the store: once
the police learned of Moses and Annette Butler, they asked
them not the in-store witnesses to assist in the
preparation of a composite sketch. See Chicago Police Department
Supplementary Report dated 4/11/80. And if impeached on the grounds of
the purported prior tentative identification, Moses' testimony
potentially could have been corroborated by his earlier statement to the
police that he had "never seen this person or the car in the area
before," see Solecki & Martin memorandum dated 4/2/80,
despite his prior acquaintance with Richardson.
Respondent argues that both Bowden and Williams likewise knew
Richardson from the
neighborhood and recognized him when they saw him. But as
Richardson argues, the record could not be clearer that these witnesses
did not recognize the perpetrator at the time of the robbery as
someone they knew or had seen before. See Supplementary Report
dated 4/2/80, p. 5 (reporting interviews of Bowden, Williams and others;
"All of the witnesses related that they had never seen the offender in
the store previous to this time."). Even though Williams later advised,
over two years later after identifying Richardson, that she had seen him
in the area before, see Supplementary Report dated 10/5/02, p.
3, this does not undermine the strength of the statements by Moses, the
person with arguably the best view of the offender, that he knew
Richardson and Richardson was not the man he had seen.
For these reasons, the Court finds that Richardson has adequately shown
cause and prejudice. We therefore proceed to the merits of Richardson's
prosecutorial misconduct claim.
Legality of the prosecutor's conduct
For more than 65 years, the Supreme Court has maintained that due
process is violated when a prosecutor deliberately misleads a defendant
to his prejudice. See, e.g., Mooney v. Holohan, 294 U.S. 103,
112 (1935) (denial of due process occurs when a defendant is deprived of
his liberty through "a deliberate deception of court and jury"); Pyle
v. Kansas, 317 U.S. 213, 216 (1942) (petitioner adequately alleged a
constitutional violation with assertions that the State knowingly put on
perjured testimony and threatened and intimidated a defense witness to
suppress his testimony); Napue v. Illinois, 360 U.S. 264, 269
(1959) (state may not knowingly use false evidence to obtain a
conviction); Brady v. Maryland, 373 U.S. 83, 87 (1963) ("[T]he
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution."); Giglio v. United
States, 405 U.S. 150, 153-54 (1972) (Brady rule
applies to impeachment evidence); United States v. Agurs,
427 U.S. 97, 107 (1976) (prosecutors must provide defense with exculpatory
evidence even if it's not requested by the defendant).
Respondent argues that even if Lazzaro's statements were false,
Richardson's due process rights were not violated because Lazzaro's
comments were mere "predictions" of future testimony; no false testimony
was presented to the jury. Though Pyle and Napue
specifically address the prosecution's presentation of and failure to
correct false testimony, the Supreme Court and federal appellate courts
have continuously read Mooney and its progeny broadly, rejecting
the narrow construction of due process and the duties of
prosecutors favored by respondent.
Indeed, the Supreme Court has recognized that "criminal defendants are
entitled to much more than protection against perjury." California v.
Trombetta, 467 U.S. 479, 485 (1984). "Under the Due Process Clause
of the Fourteenth Amendment, criminal prosecutions must comport with
prevailing notions of fundamental fairness." Id. The Supreme
Court interprets fundamental fairness as requiring "that criminal
defendants be afforded a meaningful opportunity to present a complete
defense." Id. Thus prosecutors have a constitutional duty, among
other things, to turn over evidence favorable to the defense when
requested, e.g., Brady, 373 U.S. at 87, and exculpatory evidence
even if the defense does not request it. Agurs, 427 U.S. at 107.
They cannot use pre-indictment delay that substantially prejudices the
defendant as "an intentional device to gain tactical advantage over the
accused." United States v. Marion, 404 U.S. 307, 324 (1971).
Prosecutors cannot threaten and intimidate defense witnesses to prevent
them from testifying. Pyle, 317 U.S. at 216. And courts are
"entitled to expect
candor from attorneys representing the United States."*fn8
United States v. Ott, 489 F.2d 872, 874 (7th Cir. 1973)
(reversing conviction because the prosecutor made a material
misrepresentation to the trial court to persuade the court to make a
ruling in the government's favor). See also United States v.
Bernal-Obeso, 989 F.2d 331, 334 (9th Cir. 1993) ("[W]e expect
prosecutors and investigators to take all reasonable measures to
safeguard the system against treachery."); United States v.
Foster, 874 F.2d 491, 495 (8th Cir. 1988) (reversal of conviction
warranted where prosecutor violated "her overriding duty of candor to the
court" by misrepresenting to the court that three of the state's
witnesses had not been given immunity); United States v.
Universita, 298 F.2d 365, 367 (2d Cir. 1962) ("The prosecution has a
special duty not to mislead; the government should, of course, never make
affirmative statements contrary to what it knows to be the truth.").
The prosecutor also owes candor to defense counsel. It is in keeping
with Mooney that a prosecutor violates due process if an accused
can show that "the prosecutor deliberately misled him." Gray v.
Netherland, 518 U.S. 152, 165 (1996) (finding petitioner's
allegation that the prosecutor had misled him as to the evidence the
state would present at sentencing, if true, constituted a
misrepresentation in violation of the petitioner's due process rights).
Brady also prohibits prosecutors from making material
misrepresentations to defense counsel. See United States v.
Bagley, 473 U.S. 667, 682-83 (1985). The Supreme Court recognizes
that a Brady violation offends due process because it has the
effect of misleadingly inducing the defense to believe that the requested
exculpatory information does not exist and causing him "to make
pretrial and trial decisions on the basis of this assumption."
Id. For example, when a prosecutor withholds impeachment
evidence, as was the case in Bagley, "the prosecutor's response
to respondent's discovery motion misleadingly induce[s] defense counsel
to believe" that the state's witnesses cannot be impeached. Id.
at 683. Court do not tolerate such behavior, which "casts the prosecutor
in the role of an architect of a proceeding that does not comport with
standards of justice." Brady, 373 U.S. at 88.
Prosecutorial candor is necessary to foster confidence in the outcome
of trials. "[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209,
219 (1982). In United States v. Agurs, "[t]he [Supreme] Court
observed that the Mooney line of cases applied this strict
standard `not just because they involve prosecutorial misconduct, but
more importantly because they involve a corruption of the truth-seeking
function of the trial process.'" Northern Mariana Islands v.
Bowie, 243 F.3d 1109, 1116 (9th Cir. 2001) (quoting Agurs,
427 U.S. at 103). Similarly, the purpose of the Brady line of
cases is to prevent behavior that "`undermines confidence in the outcome
of the trial.'" Kyles v. Whitley, 514 U.S. 419, 434 (1995)
(quoting Bagley, 473 U.S. at 678). To establish a Brady
violation, the petitioner must demonstrate that the evidence withheld by
the prosecution is material, meaning a verdict achieved without the
evidence is not worthy of confidence. Id. at 434.
A defendant need not demonstrate that after
discounting the inculpatory evidence in light of
the undisclosed evidence, there would not have
been enough left to convict. The possibility of an
acquittal on a criminal charge does not imply an
insufficient evidentiary basis to convict. One
does not show a Brady violation by
demonstrating that some of the inculpatory
evidence should have been excluded, but by showing
that the favorable evidence could reasonably be
taken to put the whole case in such a different
light as to undermine confidence in the verdict.
Id. at 434-35 (footnote omitted). Thus prosecutorial
misconduct may constitute a due process violation when it undermines
confidence in the verdict.
In this case, Lazzaro knowingly misled defense counsel to believe that
if they called Moses to the stand, Butler would destroy Moses'
credibility. In Pyle the Supreme Court found that if proved,
prosecutorial conduct that prevented a defense witness from testifying
would constitute a due process violation. Lazzaro's conduct had the same
effect as the intimidation alleged in Pyle: the prosecutor's
actions prevented an exculpatory witness from testifying. "The atmosphere
created by such tactics is one in which we highly doubt a defendant whose
life or liberty is at stake can receive a fair trial." Crivens,
172 F.3d at 999 (finding prosecutor violated due process by withholding
state witness's criminal record with the effect of misleading defense
counsel to believe that the witness could not be impeached). The Court
has already found that there is a reasonable probability that Richardson
would have been acquitted if he had not been tricked into deciding not to
call Moses. See supra at 29-30. For this reason, the
prosecution's conduct violated Richardson's due process rights.
Respondent argues that even if Lazzaro's conduct violated due process,
Richardson is not entitled to a reversal of his conviction because at the
time of his direct appeal, the Supreme Court had not "`clearly
established' the propositions essential to his position." Schaff v.
Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (quoting Mueller v.
Sullivan, 141 F.3d 1232, 1234 (7th Cir. 1998)). The Seventh Circuit
has recognized that since the advent of AEDPA, to obtain a writ of habeas
corpus "[a] petitioner must have a Supreme Court case to support his
claim, and that Supreme Court decision must have clearly established the
relevant principle as of the time of his direct appeal." Id. Our
previous discussion relying entirely on Supreme Court cases decided
between 1935 and the 1970s undermines
respondent's contention. For these reasons, Richardson is entitled
to a writ of habeas corpus even under the heightened standard of AEDPA.
Citing Teague v. Lane, 489 U.S. 288 (1989), respondent makes
the related argument that the rule upon which Richardson relies was not
in effect at the time his conviction became final and, therefore, it
cannot be applied retroactively to his case on collateral review. In
Teague the Supreme Court gave two definitions of a new rule. One
definition is that "a case announces a new rule if the result was not
dictated by precedent existing at the time the defendant's
conviction became final." Id. at 301 (emphasis in original). As
explained above, the Mooney and Brady line of cases,
which were decided long before Richardson's conviction became final,
dictate the rule upon which this Court has relied. The second definition
employed by the Supreme Court is that "a case announces a new rule when
it breaks new ground or imposes a new obligation on the States or the
Federal Government." Id. The rule the Court applies today does
not place a new obligation on the government. Since Mooney was
decided in 1935, prosecutors have known that they cannot deceive the
court; Brady, decided in 1963, made clear that they cannot make
material misrepresentations to opposing counsel either. Respondent's
claim that in 1982 prosecutors did not know that they could not make a
material misrepresentation to defense attorneys for tactical advantage
borders on the ridiculous. Because the Court does not rely on a new rule
today, Teague does not bar Richardson's claim.
Furthermore, even were the Court relying on a new rule of criminal
procedure, it could still be applied to Richardson's case because it
would fall under the "watershed rules of criminal procedure" exception to
Teague's bar on retroactivity. Id. at 311. Under this
exception, a new rule can be applied retroactively if the absence of the
rule at trial "undermine[s] the fundamental fairness that must
underlie a conviction or seriously diminish[es] the likelihood of
obtaining an accurate conviction." Id. at 315. In
Teague the petitioner argued that the Sixth Amendment
requirement that the venire represent a fair cross section of the
community applied to the petit jury. Id. at 299. The Court found
that the new rule sought by the petitioner on collateral review did not
fall within the watershed rule exception because the fair cross section
requirement "`[does] not rest on the premise that every criminal trial,
or any particular trial, [is] necessarily unfair because it [is] not
conducted in accordance with what we determined to be the requirements of
the Sixth Amendment.'" Id. at 315-16 (citing Daniel v.
Louisiana, 420 U.S. 31, 32 (1975)). In contrast, prohibiting
prosecutors from making material misrepresentations to induce the defense
not to call an exculpatory witness rests on the premise that such
material misrepresentations (1) result in fundamentally unfair trials in
which the defendant is prevented from putting on a complete defense and
(2) undermine confidence in the accuracy of the verdict. The rule the
Court relies on today, even if new, would fall under the watershed rule
exception. Therefore, Teague does not impede granting the writ
on the ground that his right to due process was violated by Lazzaro's
Richardson's Remaining Claims
Because the Court has found the prosecution's conduct entitles
Richardson to a writ of habeas corpus, it need not reach the merits of
his ineffective assistance of counsel claim or his other claims at this
time. Though the preferred practice is to rule on all the grounds
presented in a habeas corpus petition, see Phifer v. Warden, United
States Penitentiary, Terre Haute, Indiana, 53 F.3d 859, 863 (7th
Cir. 1995), this is not a categorical rule. Indeed, a district court's
order granting a petition for writ of habeas corpus "is ordinarily
considered a final judgment, even if the district court does not
address all of the petitioner's claims." Sprosty v.
Buckler, 79 F.3d 635, 645 (7th Cir. 1996) (citing Phifer
and other cases). Richardson's remaining claims may be rendered
effectively moot depending on whether an appeal is taken or the outcome
of that appeal. Under the circumstances, the Court need not and does not
address the remaining claims.
For the reasons stated above, the Court grants Richardson's petition
for a writ of habeas corpus. Kenneth Briley is substituted as the
respondent for James Schomig. The Clerk is directed to enter a final
judgment in favor of the petitioner. Respondent is directed to release
Richardson unless, within 120 days of this order, the State of Illinois
*fn2 On January 28, 2003, the Court entered an order directing the
parties to advise the Court whether the commutation of Richardson's death
sentence rendered moot any of his claims, and whether, in light of the
commutation, Richardson wished to pursue his habeas corpus petition.
Richardson thereafter advised that the commutation rendered moot his
claim challenging the constitutionality of the Illinois death penalty
statute, and that he wished to continue to prosecute the remainder of his
*fn3 Lest there be any confusion regarding prosecutor Lazzaro's
less-than-clear syntax at the end of the long trial day, it is undisputed
that he was advising counsel and the trial judge that if Moses were
called by the defense to testify that the shooter was not Richardson, the
prosecution would call Butler as a rebuttal witness to testify that Moses
had told Butler that it was Richardson he had seen flee from the
store. See Lazzaro Hrg. Tr. 30-31.
*fn4 Butler credibly testified that his nickname had been "Bud" and
that he had never gone by "Lloyd" or "Floyd."
*fn5 It is common in the criminal courts of this County for
prosecutors and public defenders to be assigned to particular courtrooms
for significant stretches. Attorneys in those positions tend to learn
their adversaries' strengths and weakness quite well. See
Lazzaro Tr. 3, 11 (Lazzaro was assigned to Judge Marovich's
courtroom and knew McElligott, the lead defense counsel, "from working
in the courtroom with him for a couple of years.")
*fn6 It appears from the colloquy involving Lazzaro, defense counsel,
and the trial judge that defense counsel had asked Moses about the
purported statement to Butler, perhaps during the recess that preceded
the colloquy. See Tr. 632-33.
*fn7 Respondent tries to pass off trial counsel's decision not to call
Moses as a strategic one based on all the impeachment evidence
against Moses not just the Butler testimony. For example,
respondent points out that a police report indicated Moses had made a
"tentative" identification of Richardson (a matter the Court has
addressed above). However, the record makes clear that the defense was
intending to call Moses until learning of Lazzaro's statements about
Butler and that the prosecutor's statements were what tipped the scale
against calling Moses.
*fn8 Although Ott dealt specifically with misrepresentations
offered by a U.S. attorney, the court's need for candor applies equally
to state prosecutors; there is no basis for holding state prosecutors to
a lower standard than the Constitution demands of federal
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