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Suh v. Mote

November 3, 2009


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Petitioner Andrew Suh was convicted of first-degree murder and armed robbery following a bench trial in the Circuit Court of Cook County before Judge John E. Morrissey. In a state court petition for post-conviction relief, Suh argued that his conviction was tainted by Judge Morrissey's relationship with relatives of the crime's victim. The state court denied Suh's petition, finding that, although Judge Morrissey was acquainted with an uncle and a cousin of the victim, their relationships were not close ones, and Judge Morrissey did not even know that the victim was related to his acquaintances. Suh petitions this court for a writ of habeas corpus, repeating his judicial bias argument and also raising an argument under the Fourth Amendment. For the reasons that follow, Suh's petition is denied.


A. The Murder of Robert O'Dubaine

OnSeptember 25, 1993, Robert O'Dubaine was shot twice and killed as he entered the garage of his home in Chicago's Bucktown neighborhood. (Resp's Ex. F, at 2.) The next day, police interviewed O'Dubaine's common-law wife, Catherine Suh. (Id. at 8-9.) Further investigation by the police suggested that Catherine had not been truthful in the interview, so she was interviewed again on November 5. (Id. at 9-11.) In her second interview, Catherine Suh admitted that, shortly before the murder, she had called O'Dubaine from a bar to say that she was having car trouble in order to lure him into the garage. (Id. at 10-11.) Catherine Suh was arrested and later charged with and convicted of first degree murder and armed robbery.

B. Suh's Apprehension and Confession

Five days after Catherine Suh was arrested, her brother, Andrew Suh, aroused the suspicion of Drug Enforcement Administration agents at the Dallas-Fort Worth Airport. (Resp's Ex. F, at 3-4.) Andrew Suh, then a 19-year-old scholarship student at Providence College in Rhode Island, was changing planes as he traveled from Los Angeles to Indianapolis. (Id. at 3-4, 20.) Though the agents informed Suh that he was not under arrest and free to go, he agreed to answer their questions. (Id. at 3-4.) Suh told the agents that he was on his way to Indianapolis to post bond for Catherine, whom he suspected of trying to set him up for the murder of O'Dubaine. (Id. at 5.) Suh told the DEA agents that he was not carrying any illegal drugs, and he agreed to a search of his carry-on bag. (Id.) The agents found about $1,700 in the bag and Suh voluntarily handed over another $55,000 he had been keeping on his person. (Id. at 5-6.) The agents told Suh that they were going to take the money for a canine sniff for narcotics and gave him the choice of taking his flight to Indianapolis or accompanying them to the on-site DEA office. (Id.) Suh chose to remain with the money and waited in a public lounge while the cash was tested. (Id. at 6.) The agents told Suh that the dog gave a positive response and that they were going to seize the money. (Id.) Then the agents helped Suh change his reservation so that his final destination was not Indianapolis but Chicago, where, he explained, Catherine was being held. (Id. at 6-7.) Suh was allowed to fly to Chicago on his own, but the DEA agents told the Chicago police department to expect him. (Id. at 7.)

When Suh arrived in Chicago, two officers approached him and identified themselves. (Id. at 7.) After the officers told Suh that detectives from the Area 5 police headquarters wanted to talk to him about O'Dubaine's killing, Suh began crying, hugged one of the officers, and told them that he wanted to "tell the truth." (Id.) Suh agreed to accompany the officers to Area 5 police headquarters for questioning. He was neither placed under arrest nor restrained during the trip. (Id. at 7-8.) At the station, Suh was advised of his constitutional rights, and eventually confessed to murdering O'Dubaine. (Id. at 8.) Suh explained that his sister had repeatedly complained to him that O'Dubaine was physically abusing her and spending her money, and had repeatedly sought help in a plan to murder O'Dubaine. (Id. at 13.) Suh had agreed to help his sister and hid in the garage of the home shared by O'Dubaine and Catherine Suh. (Id. at 14.) After Catherine called O'Dubaine to say that she needed help with her car, O'Dubaine went to the garage to get his own car and Andrew Suh, who had been waiting there for hours, shot him twice in the head. (Id. at 14-15.) Then Suh took O'Dubaine's car keys and drove away in his Jeep. (Id.)

C. Conviction, Direct Appeal, and First Two Post-conviction Petitions

Before trial, Suh sought to suppress his confession and the evidence found on his person, which included O'Dubaine's wallet. (Resp's Ex. F, at 8, 16.) His motion was denied, and Suh was tried for the murder of O'Dubaine and for armed robbery, vehicular hijacking, and burglary for taking O'Dubaine's car. (Id. at 8, 18.) Suh had a bench trial before Judge Morrissey, who found him guilty of first degree murder, armed robbery, and vehicular hijacking. (Id. at 18.) Morrissey found Suh eligible for the death penalty, but ultimately sentenced him to 80 years for murder and 20 years for armed robbery, to run consecutively (the vehicular hijacking and armed robbery counts merged). (Id. at 23.) Catherine Suh, also convicted of first degree murder and armed robbery, received a sentence of life in prison. (Id. at 26.)

In his direct appeal, Andrew Suh argued (1) that the trial court erred in denying his pretrial motion to suppress; (2) that his sentence was excessive and an abuse of discretion; and (3) that the sentences for murder and armed robbery should not run consecutively. The appellate court reasoned that a person in Suh's position at the Dallas airport would have felt free to leave, that the DEA agents' search of his bag was founded on reasonable suspicion, that he was not detained for an unreasonable length of time while his cash was sniffed for drugs, and that his interactions with authorities up to his arrest were consensual. Accordingly, the appellate court concluded that Suh's Fourth Amendment rights had not been violated and affirmed his conviction. (Id. at 30-42.). The court also rejected Suh's challenge to the duration of his sentence, reasoning that the trial court had properly balanced the mitigating and aggravating factors. (Id. at 46-50.) The appellate court did, however, find that the trial court erroneously ordered consecutive sentences, and ordered the sentences to run concurrently instead. (Id. at 50-52.) The Illinois Supreme Court denied Suh leave to appeal. People v. Suh, 188 Ill.2d 579, 729 N.E.2d 503 (2000).

While Suh's direct appeal was pending, he filed his first post-conviction petition in the Circuit Court of Cook County, arguing ineffective assistance of counsel at trial and on appeal. (Resp's Ex. I.) The trial court denied the petition. (Resp's Ex. J.) After the Illinois Supreme Court denied Suh leave to appeal from his direct appeal, he filed his second post-conviction petition, arguing that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). (Resp's Ex. K.) The court denied that petition as well. (Resp's Ex. L.) The appellate court reviewed the denials of both petitions in a single order and affirmed. (Resp's Ex. P.) The Illinois Supreme Court denied Suh's petition for leave to appeal. People v. Suh, 201 Ill.2d 607, 786 N.E.2d 197 (2002).

D. Suh's Third Post-conviction Petition

While Suh's appeal from the denial of his first two petitions was pending, Patrick Lavery, a playwright researching Suh's story, interviewed Sister Barbara McCarry, who had been the principal of Suh's grade school and was very knowledgeable about the case. (Petr's Ex. J ¶ 2-3, Ex. X, at 22.) According to Lavery, McCarry reported that the judge at Suh's trial was close to the victim's family, but she was afraid to discuss the matter in more detail. (Petr's Ex. J. ¶ 4.) Lavery stated that he called McCarry later in the hopes that she would be more forthcoming, but she refused and ended the call abruptly. (Id. ¶ 5.)

Suh filed a third post-conviction petition on October 2, 2003.*fn2 In that petition, Suh, citing Lavery's affidavit, argued that Judge Morrissey had ties to the family of the victim that created a constitutionally impermissible potential for judicial bias. (Resp's Ex. S.) The trial court denied Suh's request to use coercive discovery tools to investigate his allegations, (Resp's Ex. V), so his lawyers relied on evidence gathered through a private investigator and through voluntary telephone interviews with Judge Morrissey and members of the victim's family. (Petr's Ex. N, Ex. O.) That evidence showed the following connections between Judge Morrissey and the victim, Robert O'Dubaine: Judge Morrissey served on the Cook County First Municipal District Court with Judge John Divane, who is O'Dubaine's uncle. (Resp's Ex. AA, at 3.) In addition, Judge Morrissey attended high school with William Divane, who is the cousin of O'Dubaine's mother. (Id.)

In a telephone interview, Judge Morrissey told Suh's lawyers that he and William Divane were "casual friends, who used to pal around together," but that he had not known that William Divane was related to O'Dubaine. (Pet's Ex. O, at 8.) Suh's lawyers also interviewed a friend of William Divane's, Walter Morrissey (apparently no relation to Judge Morrissey), who attended high school with Divane and Judge Morrissey. According to one of the lawyer's notes, Walter Morrissey reported that William Divane and Judge Morrissey saw each other regularly and are "great, long-time friends." (Id. at 10.) The day after the interview, however, Walter Morrissey called Suh's lawyers back, this time in the role of William Divane's legal representative. In this second conversation, Walter Morrissey stated that William Divane had told him that in fact there was no relationship between himself and Judge Morrissey. (Id. at 13.) When one of Suh's lawyers expressed the view that Walter Morrissey's statements were not consistent with what he had said the day before, Morrissey disagreed. (Id. at 13.) As the court reads the record, it appears that in the second conversation, Walter Morrissey denied ever saying that Judge Morrissey and William Divane were "great, long-time friends."*fn3 In a subsequent letter to the lawyer, Walter Morrissey wrote, "I state for the record that in our brief conversation today, your reference to one of my discussion points of the earlier conversation was not accurate." (Id. at 26.)

In his interview, Judge Morrissey also told the lawyers that Judge Divane had never contacted him about the case. (Id. at 8.) Judge Divane was interviewed as well and agreed that he never spoke to Judge Morrissey about the case. (Id. at 20.) Judge Divane said that he did not even know Judge Morrissey. (Id. at 19.) Finally, Judge Divane told Suh's lawyer that he had met with McCarry after she met with Lavery because McCarry believed that Lavery was making accusations that Judge Divane had improperly influenced the trial. (Id. at 20-21.) McCarry was interviewed as well. She told Suh's lawyers that she believed that it was Lavery who brought up the connection between O'Dubaine and Judge Morrissey. (Id. at 7.)

The court denied Suh's third petition, (Resp's Ex. W), and the Illinois Appellate Court affirmed both the trial court's refusal to order discovery and its denial of the petition. (Resp's Ex. AA.) First, the appellate court reasoned that the trial court's ruling on discovery was not an abuse of discretion because further inquiry would have been "nothing more than a fishing expedition." (Id. at 10-12.) Next, the court affirmed the denial of Suh's third petition because the evidence showed that Judge Morrissey's connection to the victim's family was too insubstantial to create a significant ...

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