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Etherly v. Schwartz

August 28, 2009


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


On July 17, 1995, then-fifteen year old Aris Etherly was awakened by police officers at his family's home at approximately 5 a.m. He was taken in handcuffs to the police station, where he was questioned intermittently over the ensuing hours in conjunction with a gang-related shooting in Chicago. After initially denying any involvement in the killing, Etherly later incriminated himself in statements to law enforcement. He was charged and ultimately convicted of first degree murder and sentenced to forty years of imprisonment. Now incarcerated at the Pinckneyville Correctional Center, where respondent Gregory Schwartz is the acting warden,*fn1 Mr. Etherly seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to overturn his conviction and sentence. For the reasons that follow, I grant his petition.


On the night of July 13, 1995, Jeremy Rush was shot and killed while visiting with his friend Henry Wingard on Wingard's front porch. Wingard described the circumstances surrounding the shooting at Mr. Etherly's trial. According to his testimony, Wingard was standing on his porch at 103 W. 112th Street in Chicago, accompanied by Rush. Wingard was a member of the Vice Lords street gang and was wearing a hat turned to the left, signifying his gang affiliation. After hearing gunshots, Wingard ran into the house. He returned to find Rush lying on the steps of the porch, bleeding. Rush later died of a gunshot wound to the head. Wingard did not identify any shooters.

Four days later, five police officers, including Detectives Theodore Golab, Robert Flood, and Cornelius Spencer, arrested Mr. Etherly at his family home. The officers arrived sometime between 5:00 and 6:00 a.m., while Mr. Etherly slept. They awakened Mr. Etherly, then handcuffed him and transported him in a police vehicle to the Area 2 police station. The officers told Mr. Etherly's father that his son was being taken to the police station for questioning, and that Mr. Etherly, Sr., could drive to the station in his own car. Mr. Etherly's father did not go to the station and did not have any contact with his son for the next three days.

Upon arrival at the police station at around 6:00 a.m., Mr. Etherly was left alone in an interview room until approximately 8:00 a.m., when Youth Officer Frank "Joe" DiGrazia arrived, accompanied by Detective Spencer. At that time, Detective Spencer read Mr. Etherly his Miranda warnings and questioned him. Mr. Etherly denied knowing anything about the shooting. He was then left alone in the interview room. The youth officer never spoke to Mr. Etherly, or at all, during the questioning.

At around 10 a.m., Mr. Etherly called Detective Spencer and told him that he wanted to show him where the weapons were located. Mr. Etherly told Detective Spencer that a uniformed police officer had escorted him to the restroom, and, while there, told him he had "an obligation to tell the truth about where the guns were located." People v. Etherly, No. 1-97-4582, (Ill.App.1st Dist. 1997) (Rule 23 Order) ("Etherly") at 2. Detective Spencer then contacted Detective Golab, who along with Detective Flood resumed Mr. Etherly's questioning. Mr. Etherly was not Mirandized at that time, but Detective Golab reminded Mr. Etherly that the rights of which he had previously been advised were "still in effect." Mr. Etherly again stated that a uniformed officer told him he had an obligation to tell the truth, and that if he helped the police to locate the guns "it would go better for him in court." Etherly at 3. Detective Golab testified that he told Mr. Etherly it "was nice he wanted to show us where the weapons were at, but we couldn't promise him anything" other than to "inform the court of his assistance." (Tr. F27, F41.) Mr. Etherly said "that's all right." (Tr. F27) He was then placed in a police car, without a youth officer, and led the detectives to the location of the weapons. Afterwards, Mr. Etherly was returned to the same interview room in the police station.

Later that day, at around 1:00 or 2:00 p.m., Mr. Etherly was interviewed by Assistant State's Attorney ("ASA") Joseph Alesia. Detective Golab and Youth Officer DiGrazia were also present for the interview. The ASA introduced himself, explained that he was a prosecutor and not Mr. Etherly's attorney, and advised Mr. Etherly of his Miranda rights. Mr. Etherly said that he understood those rights, then gave a statement. When the ASA asked Mr. Etherly if he would be willing to reduce his statement to writing, or to have the statement transcribed by a court-reporter, Mr. Etherly agreed to a court-reported statement.

In his court-reported statement, Mr. Etherly said that he was a member of the Gangster Disciples street gang, and that on the night of the shooting, he joined several friends---also Gangster Disciples--who said they wanted to kill some Vice Lords. When Mr. Etherly and his gangmates arrived at 112th Street, they saw some boys on a porch and noticed a hat turned to the left. Mr. Etherly and his friends began shooting. Mr. Etherly fired a total of seven shots, then ran away as his gangmates continued to fire. This statement was the first time Mr. Etherly confessed to any involvement in the shooting.

In response to questions posed by the ASA, Mr. Etherly indicated that he had been treated well by law enforcement, given food ("some chips and pop"), and allowed to use the restroom. He also said that his statement was voluntary. In response to the question, "[h]as anybody made any promises or threats to you in return for your statement?," Mr. Etherly answered "[o]ne of them made a promise. Told me to get the guns." The State's Attorney then asked, "[t]hat's one of the uniformed officers?" and Mr. Etherly responded "yeah." Mr. Etherly later added, in his own handwriting, that the uniformed police officer told him to get the weapons "so the judge would know I helped them."*fn2 In the handwritten addition, Mr. Etherly was unable to spell any word more than three letters in length, spelling "judge" g-u-b-g-e and "would" w-o-l-e-d, and asking ASA Alesia how to spell the words "know," "helped," and "them." When directed to print his full name on each page of the statement, Mr. Etherly misspelled or miswrote it several times. Youth Officer DiGrazia made no attempt to speak to Mr. Etherly at any time throughout his questioning.

Prior to trial, Mr. Etherly moved, unsuccessfully, to have his court-reported statement suppressed. Evidence elicited at the suppression hearings, and again at trial, raised questions about Mr. Etherly's competence to understand and knowingly waive his Miranda rights, and about whether Mr. Etherly was coerced into confessing by the "promises" Mr. Etherly claimed he received from the unidentified uniformed officer. At the suppression hearings, Mr. Etherly's father testified that his son was illiterate and had been in special education since the second grade. He further testified that although his son had a special tutor for each of his classes his first year in high school, he had failed all of his courses. At trial, Rebecca George, a teacher at the Cook County Juvenile Temporary Detention Center where Mr. Etherly was held pending his trial, testified that after she discovered Mr. Etherly could not read or write, she met with him two or three times a week over a five month period to work on phonics.*fn3 George stated that at the time she began working with Mr. Etherly, he was "completely illiterate," and that their phonics work progressed much more slowly than with other students. George testified that Mr. Etherly spent approximately a month "sounding out really A through E," that it was "very difficult for him to even know what sounds went with A or B or C or D," and that even after five months of work, he had not progressed to the end of the alphabet. George also testified that Mr. Etherly had "a very limited vocabulary...the way he uses words are from how he hears other people use words." (Tr. K122-K124.)

Pursuant to the trial court's order, Mr. Etherly was evaluated in December 1996 by Dr. Philip Pan, a staff psychiatrist for Forensic Clinical Services. Dr. Pan diagnosed Mr. Etherly with "an adjustment disorder with depressed mood, and borderline intellectual functioning." (Tr. C42.) Dr. Pan opined, however, that defendant understood his Miranda rights and was able to waive them. The Pan report states:

[a]lthough he was only marginally cooperative with the interview, I feel that Mr. Etherly understands that he is not required to talk to the police, that the legal system will act upon any information given to them, that he is entitled to have a lawyer present while he is questioned, and that if he can't afford a lawyer that he will be appointed a public defender who he will not have to pay for. (Tr. C42.)

At the close of trial, Mr. Etherly was convicted of first-degree murder. Throughout his state court appeals, Mr. Etherly argued that his statement to the police should have been suppressed on the ground that it was involuntary.*fn4 The Illinois Court rejected this argument, concluding that while his age, lack of intellectual capacity and lack of criminal background are factors which weigh against admission of the statement, Dr. Pan found that, although defendant had borderline intellectual functioning, he understood that he was not required to talk to police, and that the legal system would act upon any information given to them.... the ...

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