The Illinois Supreme Court handed down six opinions on Thursday, June 18. In People v. Legoo, the court affirmed a man’s conviction of being a child sex offender in a public park. In People v. Robinson, the court granted a defendant’s leave to file a successive post-conviction petition asserting a claim of actual innocence in a murder trial. In People v. Swenson, the court upheld a man’s conviction for disorderly conduct after he called a school administrator and made extensive comments about shootings and violence during a phone conversation, causing the school to go on lockdown. In People v. Radford, the Supreme Court found that a trial court did not violate a defendant’s right to a public trial by partially closing the courtroom during jury selection and that no error occurred when the jury was instructed.  In City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, the court ruled that state public information laws require Chicago to preserve decades-old police misconduct records despite a provision in the police union’s collective bargaining agreement. In Hernandez v. Lifeline Ambulance, LLC , the court ruled that section 3.150 of the EMS Act provides no immunity from civil liability to an ambulance owner and its driver where the driver, allegedly speeding, collided with another vehicle en route to pick up a patient for nonemergency transportation.

People v. Legoo

By Kerry J. Bryson, Office of the State Appellate Defender

Patrick Legoo was convicted of being a child sex offender in a public park, a misdemeanor under 720 ILCS 5/11-9.4-1(b). Evidence at his trial established that Legoo had gone to the park to retrieve his minor son who was there watching a baseball game. After telling his son to come home, Legoo left the park.

At issue on appeal was whether a statutory exception contained in a nearby section of the Criminal Code, Section 11-9.3(a-10) should be read into Section 11-9.4-1(b). Section 11-9.3(a-10) permits a child sex offender to be present in a public park and communicate with a minor if the offender’s own minor child is also present in the park. Section 11-9.4-1(b), on the other hand, acts as a complete prohibition on a child sex offender’s presence in a public park, regardless of whether the offender communicates with a minor, and does not contain any exception for a parent to be present with his or her own minor child.

The appellate court acknowledged “overlap” between the two statutes but declined to apply the exception from 11-9.3(a-10) to 11-9.4-1(b), citing differences in who the statutes apply to, the conduct prohibited by each, and the respective penalties. Today, the Supreme Court affirmed that decision.

First, the court looked to its recent decision in People v. Pepitone, 2018 IL 122034, where it held that section 11-9.4-1(b) “completely bars sex offenders who have targeted children from public parks.” While Pepitone did not concern the exception in Section 11-9.3(a-10) that is at issue here, the court cited to its holding in Pepitone that 11-9.4-1(b) is a “flat ban” on the presence of certain sex offenders in public parks as support for rejecting defendant’s request to incorporate the parental exception included in 11-9.3(a-10).

The court went on to discuss differences between the two statutory provisions. Specifically, both 11-9.3 and 11-9.4-1 apply to child sex offenders, but 11-9.4-1 excepts “Romeo and Juliet” offenders (where sex offender status is based on consensual sex when (a) the accused was under 17 and the victim was between 9 and 16 or (b) the victim was 13 to 16 years old and the accused was less than 5 years older). Also, the statutes prohibit different conduct, with 11-9.4-1(b) prohibiting entry or presence in a public park, while 11-9.3(a-10) prohibits approaching, contacting, or communicating with a minor in a public park unless the offender’s minor child is also present. Finally, the court noted that the penalties are different for each, with 11-9.4-1(b) being a misdemeanor for a first offense, while 11-9.3(a-10) is a Class 4 felony because of the greater threat to public safety from an offender actually approaching a minor in a park. The court reasoned that because of the harsher punishment, the legislature may have concluded it was reasonable to allow an accused offender to provide an innocent explanation for his or her conduct.

Because the plain language of 11-9.4-1(b) did not include a parental exception, the court declined to find that the legislature intended such an exception to apply. The court then addressed Legoo’s argument that in the absence of such an exception, Section 11-9.4-1(b) is an unconstitutional infringement on his interest in the care, custody, and control of his child. The court quickly disposed of this argument, noting that there is no fundamental right for any person to be present in a public park and no authority for the notion that a parent is entitled to take his child to a public park as part of his liberty interest in raising and caring for his child. Without such an interest, there was no constitutional infringement imposed by the statute.

The court concluded by acknowledging the partial overlap of the two statutory provisions, noting that both offenders and law enforcement “benefit from clear statutory provisions on this subject.” The court urged the legislature to review these provisions and consider clarifying them.

Justice Garman, joined by Chief Justice Anne Burke, dissented from the majority’s opinion. Justice Garman reasoned that the legislature could not reasonably have intended to both prevent all child sex offenders except Romeo and Juliet offenders from public parks while simultaneously allowing an exclusion from the prohibition against talking to other children in a public park for those child sex offenders who are present in a public park with their own children. Under the majority’s interpretation, the offender must necessarily violate Section 11-9.4-1(b) in order to fit within the exception to 11-9.3(a-10). The dissent would have incorporated the parental exception stated in 11-9.3(a-10) into 11-9.4-1(b) because otherwise the exception is meaningless.

People v. Robinson

By Kerry J. Bryson, Office of the State Appellate Defender

In December 1997, Nicole Giles was found dead of a gunshot wound. Her body had been burned, as well. Rickey Robinson and two other men were convicted of first-degree murder and other offenses relating to Giles’s death. Robinson made inculpatory statements which were admitted against him at trial. No physical evidence directly linked Robinson to the crime.

In May 2015, following both an unsuccessful direct appeal and post-conviction petition, Robinson sought leave to file a successive post-conviction petition asserting a claim of actual innocence and asserting that another individual, Leonard Tucker, had murdered Giles. Robinson’s motion and petition were supported by affidavits from himself and four other witnesses. The trial court denied leave to file, concluding that Robinson’s girlfriend’s alibi affidavit was not newly discovered because Robinson could have presented her testimony at trial and that the other three witnesses did not totally vindicate or exonerate Robinson because they did not witness the murder or burning of Giles’s body, so their affidavits were not of such conclusive character as to probably change the outcome.

Robinson appealed, and the appellate court affirmed. The appellate court cited Robinson’s confession, and, like the trial court, noted that none of the new witnesses had actually witnessed the offense. Further, the appellate court found that the affidavits were contradicted by the trial evidence and therefore the court could not find that “no reasonable juror would have convicted him in light of the new evidence.”

The Illinois Supreme Court agreed to review Robinson’s case. A divided court issued an opinion clarifying several aspects of successive post-conviction law. First, the majority held that the appropriate standard of review for denial of leave to file a successive post-conviction petition is de novo because the question is whether, as a matter of law, the petition states a colorable claim. Thus, a reviewing court need not defer to the trial court’s judgment.

Considering whether Robinson should have been granted leave to file his successive petition, the court first agreed that Robinson’s girlfriend’s affidavit was not newly discovered. With regard to the remaining affidavits, the court first held that both the trial and appellate courts applied an incorrect standard by requiring “total vindication or exoneration” to support a claim of actual innocence. Instead, the appropriate standard is whether the new evidence places the trial evidence in a different light and undermines confidence in the judgment of guilt.

The court also held that the appellate court erred in affirming the denial of leave to file because defendant’s witness affidavits conflicted with the trial evidence. [1] A conflict between the new evidence and the trial evidence is, after all, inherent in a claim of actual innocence. While such conflicts may prove fatal at later stages of post-conviction proceedings, the leave-to-file threshold is lower – falling somewhere between the first-stage gist-of-a-claim standard and the second-stage substantial-showing requirement. At the leave-to-file stage, the question is not whether the new evidence conflicts with the trial evidence, but whether the well-pleaded allegations of defendant’s petition and supporting affidavits are positively rebutted by the record. Such will be the case only where it is “clear from the trial record that no fact finder could ever accept the truth of that evidence, such as where it is affirmatively and incontestably demonstrated to be false or impossible.”

Finally, the court considered what it means for a petitioner’s well-pleaded allegations to be accepted as true, a requirement of the leave-to-file stage. The court rejected the state’s assertion that it means only to presume the witnesses will testify consistently with their affidavits. Instead, the court must presume that the trier of fact would believe their testimony. Credibility determinations are not to be made at this stage, but rather only at a third-stage evidentiary hearing.

Applying all of these principles to Robinson’s case, the court concluded that his petition and supporting affidavits stated a colorable claim of actual innocence. Each of the new witnesses provided details about events immediately surrounding the incident which supported Robinson’s claim that he was innocent and Tucker was the actual offender. One of the witnesses averred that he saw Tucker and two men at the scene of the shooting, and Robinson was not present. Another said he saw Tucker that same night, along with a man who disposed of a gun like that used in the shooting, and Robinson was not present then, either. And, the third said he saw Tucker with two other men at a gas station the next day, filling a gas can. That was the same day Giles’s burned body was found. That witness said Tucker confessed to killing a woman the prior evening.

While the state’s trial evidence consisted largely of Robinson’s confession, these new witness affidavits, taken as true, were sufficient to require granting leave to file Robinson’s successive petition. A trier of fact could determine that the new evidence exculpated Robinson from any involvement in the offense and refuted the state’s evidence at trial. Accordingly, Robinson stated a colorable claim of actual innocence.

Justice Michael Burke authored a dissent, joined by Justices Garman and Karmeier, criticizing the majority as having abandoned the standard established in People v. Edwards, 2012 IL 111711 (“leave of court should be granted when the petitioner’s supporting documentation raises the probability that ‘it is more likely than not that no reasonable juror would have convicted him in light of the new evidence’”) in favor of a new standard (“whether the new evidence, if believed and not positively rebutted by the record, could lead to acquittal on retrial”). The dissent went on to note that the leave-to-file standard was never meant to be a low threshold but instead was meant to require a showing that a different outcome was “probable,” not just that a different outcome “could” result.

While they reach different results, both the majority and dissent give thorough treatment to successive post-conviction petition and actual innocence law. The Robinson opinion is a valuable resource for both pro se post-conviction petitioners and counsel, alike.

People v. Swenson

By Jay Wiegman, Office of the State Appellate Defender

More than 50 years ago, in People v. Raby, 40 Ill.2d 392 (1968), the Illinois Supreme Court held that the disorderly conduct statute would not, under any circumstances, allow persons to be punished “merely for peacefully expressing unpopular views.” While the appellate courts have often held this means that “speech alone cannot form the basis for a disorderly conduct charge,” (People v. Rokicki, 307 Ill. App. 3d 645 (1999), the Illinois Supreme Court considers the more “accurate” statement of the Raby holding to be found in People v. Nitz, 285 Ill. App. 3d 364 (1996): “[i]n Raby, our supreme court rejected the proposition that the disorderly conduct statute punishes speech protected by the first amendment.” Thus, in People v. Swenson, 2020 IL 124688, after Swenson was charged with disorderly conduct for extensive comments he made about shootings and violence during a phone conversation with an administrator at a private school five days after a notable shooting in California, which prompted the school official to place the school on a soft lockdown and call the police, the Supreme Court was called upon to decide if the defendant’s speech was protected by the First Amendment.

In Swenson, the defendant called a private school to discuss enrolling his seven-year-old child there. He spoke with the school’s advancement director and asked questions and gave statements about school security, mass shootings, and gun violence. The director was alarmed and disturbed by the statements and texted another administrator, who placed the school on a soft lock-down and called the police. The defendant was arrested and charged with several offenses, including disorderly conduct.

At the defendant’s bench trial, the administrator testified that the defendant asked her if, among other things, she was “prepared to have the blood of sacrificial lambs on [her] hands that day.” He asked how long it would take police to respond if he or anyone arrived on campus with guns. Although the defendant disputed making some of these comments, the circuit court found that the school’s advancement director was more credible than the defendant. Although the circuit judge did not think that Swenson was threatening the school, the court found that he acted unreasonably, and that he should have known that the school official would be disturbed. The defendant was convicted of disorderly conduct and sentenced to two days in jail with credit for two days served. The Appellate Court, Second District, affirmed.

On appeal to the Supreme Court, Swenson argued that his only “conduct” was speech, which was protected by the first amendment, that the courts below misunderstood the requisite mental state, and that the appellate court improperly applied Raby.

In a 5-2 decision, the Supreme Court recognized that the defendant did not engage in any conduct other than speech, but the majority determined that although the restriction on the defendant’s speech was content-based, the defendant’s speech was not protected because it constituted a “true threat,” a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group. Writing for the majority, Justice Garman noted that the speaker need not actually intend to carry out the threat, as the court stated in its recent decision in People v. Ashley, 2020 IL 123989. Rather, the speaker must be subjectively aware of the threatening nature of the speech. The majority further found that Swenson acted unreasonably when he posed a “battery of morbid and morose questions about killing school children and sticking guns in teachers’ faces” to the advancement director, and that his questions and statements directly resulted in a breach of the peace when the administrator initiated a police response and placed the school on a soft lock-down. Although the defendant disputed making some of these comments, the majority deferred to the circuit court’s finding that the school’s advancement director was more credible than the defendant.

Justice Neville dissented with Justice Kilbride joining. The dissent stated that, although the defendant’s questions and comments could be seen as excessive and troubling, they did not contain the requisite elements of a true threat, because there was no evidence of a serious expression of intent to commit an act of unlawful violence. The dissent distinguished the instant case from Ashley, in which the defendant sent text messages saying he wanted to see the victim suffer and called her to specifically threaten to “come over and kill” her and everybody else in the apartment. The dissent also argued that the advancement director had not perceived the defendant’s communication as a threat and noted that the majority’s conclusion that the defendant’s comments were “objectively unreasonable” rendered the school administrator’s perception irrelevant.

People v. Radford

By Jay Wiegman, Office of the State Appellate Defender

Following the death of his 26-month-old daughter, M.R., Tavarius Radford, then 17 years old, was charged with first degree murder and endangering the life of his child. During jury selection, which occurred the week before Thanksgiving, the trial judge allowed only two individuals from the victim’s family and two from the defendant’s to remain in the Kankakee County courtroom because of the high number of potential jurors needed for this highly-publicized case.

During the trial, witnesses testified to several accidental falls the toddler had taken in the year preceding her death, including one in which she hit her head on pavement that occurred one to three days before she was found unresponsive in the apartment M.R. shared with her parents and several others. The defendant did not testify, but in a video of his police interview shown to the jury, he said that, the day before his daughter died, he grabbed her by the arms and pushed her from a sitting position onto her back onto a daybed, and he speculated that she might have hit her head on a wooden unicorn plaque when he forcefully tucked her into bed the night before she died. Two experts provided conflicting opinions on whether the death was caused by child abuse or the accidental falls.

The jury was instructed that the offense of endangering the life or health of a child required proof that the defendant willfully caused or permitted M.R.’s life to be endangered, and that his acts proximately caused her death. The defendant was acquitted of first-degree murder and involuntary manslaughter, but convicted of endangering the life or health of his daughter.

Because there had been no objection to the either the court closure during jury selection or to the instructions that were given, the defendant sought plain-error review of both of these issues on direct appeal. The Appellate Court, Third District, concluded that the closure was not a clear or obvious error, was a “trivial closure” and not reviewable as second-prong plain error. One justice dissented on this point. The court also determined that no error occurred when the jury was instructed regarding the mental state for the offense of child endangerment. The Appellate Court concluded that the jury could reasonably find the defendant willfully endangered M.R.’s life or health, and that his acts were a proximate cause of her death. The Supreme Court granted the defendant leave to appeal.

In a 5-1 decision, the Supreme Court rejected the defendant’s argument that, because the trial court’s closure did not satisfy the four factor test set forth in Waller v. Georgia, 467 U.S. 39 (1984), Radford is automatically entitled to a new trial. People v. Radford, 2020 IL 123975. Waller requires that, before closing a courtroom over the objection of a defendant, the trial court must consider whether closure is justified by an overriding interest that is likely to be prejudiced, whether the closure is no broader than necessary to protect that interest, and whether there are reasonable alternatives available, and then must make adequate findings to support the closure. Writing for the majority, Justice Theis noted that Waller and other cases cited by the defendant apply where the accused makes a timely objection. The majority expressed concern that by failing to object, the defendant deprived the court of an opportunity to make adequate findings or to modify its closure order. The court also noted that the defendant was allowed to choose two family members to remain, and in this way cooperated, implicitly accepting the court’s decision. Additionally, the presence of two family members and the press assured that the selection process was proper.

The majority also rejected the defendant’s claim that the trial court committed plain error in describing the mental state for the offense of child endangerment as “willfully” rather than “knowingly,” or in failing to give a portion of IPI instruction 5.01B defining the term “willfully” as meaning “knowingly,” and that trial counsel was ineffective for failing to object to the trial court’s erroneous instructions. The court held that, because the trial court gave pattern instructions 11.29 and 11.30, which did not require a definitional instruction of “willfully” and tracked the language of both the statute as written at the time of the offense–though not the statute at the time of trial, which had been amended to reflect the Supreme Court’s prior statement that the term “willfully” in the statute meant “knowingly”–and the indictment, the trial court did not commit clear or obvious error when it instructed the jury, and counsel was not ineffective for failing to object.

In dissent, Justice Neville wrote that the majority overlooked that a defendant’s Sixth Amendment right to a public trial is at least as protective as the First Amendment right of members of the public to attend. Under either, a trial court has an obligation to comply with the Waller factors regardless of whether any party objects. The dissent would have found that the closure in this case failed to comply with the Waller test because the closure was broader than necessary, the court did not consider reasonable alternative to closure that existed, and the court did not make a record adequate to support the closure. The dissent would have further found that because a violation of the right to a public trial was a structural error, it constituted second-prong plain error, thereby excusing any failure to make an objection.

The dissent observed that the majority minimized the legal impact of a trial court’s deprivation of a defendant’s constitutional right to a public trial, and the right of members of the public to attend. The dissent found that particularly concerning in light of the fact that racial disparities in the criminal justice system mean that closures like the one in this case disproportionately exclude poor or African-American spectators who know the defendant or who otherwise have a personal interest in the case. Including them, rather than allowing mostly white potential jurors and court personnel to replace them, is essential to equal justice and  participatory democracy, and necessary to challenge implicit bias against African Americans like the defendant here, while protecting the fairness and integrity of the judicial process.

The dissent also would have held that the trial court failed to comply with mandatory committee notes to the IPI instructions that require an IPI instruction defining the term “willfully” to be given, and that the court therefore committed clear and obvious error. Further the dissent would have held that this was reversible under both prongs of the plain error doctrine because (1) the prosecutor’s and the trial judge’s comments, as well as the evidence and the jury’s verdicts, indicated that the case was close as to mental state, and (2) the omission of a mental state instruction essential to the determination of the defendant’s guilt or innocence severely threatened the fairness of the defendant’s trial by creating a serious risk that the jurors convicted the defendant of child endangerment because of the instruction error.

City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7

By Michael T. Reagan, Law Offices of Michael T. Reagan

In this case, the court once again takes up the interplay between an asserted violation of public policy and the enforcement of a contract. The charged setting is a long-standing provision in the Chicago police collective bargaining agreement (CBA) which requires the destruction of misconduct records five years after the discovery of the offending conduct. Arrayed against that contractual requirement is the Local Records Act, which prohibits the destruction of local governmental records except as provided for by approval from the Local Records Commission.  50 ILCS 205/1 et seq.

The convoluted and lengthy factual background, which is efficiently narrated in the opinion for the court by Justice Karmeier, is not central to this summary. In overview, since the inception of the CBA in 1981, it has contained a provision requiring that most records of disciplinary investigation files be destroyed within five years. The city complied until 1991, when a federal district judge ordered in a civil rights case that the city cease destroying complaint register files. Similar orders followed. Grievances and extended arbitration followed, leading ultimately to this opinion. The arbitrator had to issue a sequence of awards as events occurred, including FOIA requests from the media, and a Department of Justice excessive force and discriminatory policing investigation. Although the details reflect the care which went into the development of the case, the ultimate arbitral award was that the city was in violation of the CBA, and the parties were directed to meet and attempt to establish a procedure for compliance.

The circuit court granted the city’s petition to vacate the arbitration award, ruling that enforcement of the award “violated a well-defined and dominant public policy to preserve government records.” The appellate court affirmed, as does the Supreme Court here.

The court recognized that judicial review of an arbitrator’s award is extremely limited, but that there is an exception providing for vacation of an award if it is repugnant to established norms of public policy. A two-step analysis is to be applied: Is there such a public policy, and does the award violate it? On the first question, the court said that it need not look further than the plain language of the Local Records Act. “Declaring public policy is the domain of the legislature,” and “a state statute is the strongest indicator of public policy.” The court found further support in the State Records Act which declares that “government records are a form of property whose ownership lies with the citizens and with the State; …those records are to be….administered in support of the rights of those citizens…”

The court then found that the award violated that public policy. The CBA could not be implemented in a way which would not run up against the ultimate statutory authority of the Local Records Commission to make decisions as to the destruction of records.

Justice Kilbride dissented, with carefully expressed conclusions. He began by saying that he “firmly believe(s) that police misconduct must be rooted out, and (he) would vehemently oppose the indiscriminate destruction of police misconduct records.” But he relied on the fact that the award “merely directed the parties to meet and negotiate,” and did not order the destruction of any records. He developed state and federal labor law policy in favor of collective bargaining and the enforcement of arbitration awards. He concluded that there are “two well-defined and dominant public policies” at work here, but that the policy in favor of enforcement of labor arbitration awards tips the scale in favor of enforcement of this particular award.

The majority’s opinion contains a useful discussion in response to the defendant’s suggestion that the court should consider legislative bills that were introduced but never signed into law as evidence of legislative intent. “One could only envision the chaos that would ensue (especially for the judiciary) if any of the 177 members of the General Assembly could dictate public policy through the introduction of a legislative bill–regardless if the bill becomes law.”

Hernandez v. Lifeline Ambulance, LLC 

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Split 4-3, the Illinois Supreme Court again interpreted the Emergency Medical Services Systems Act. The court held that section 3.150 of the EMS Act provides no immunity from civil liability to an ambulance owner and its driver where the driver, allegedly speeding, collided with another vehicle en route to pick up a patient for nonemergency transportation. Justice Michael Burke wrote for the court, and Justices Kilbride, Karmeier and Theis concurred in the judgment and opinion. Justice Neville wrote a dissent joined by Chief Justice Anne Burke and Justice Garman.

The dispute over application of the immunity statute, which could shield the driver and the ambulance owner from civil liability for negligence–but not for willful and wanton misconduct–pertained only to whether the driver was providing non-emergency medical services at the time of the accident. 210 ILCS 50/3.150(a) (West 2016). “Non-emergency medical services” means: “medical care, clinical observation, or medical monitoring rendered to patients whose conditions do not meet this Act’s definition of emergency, before or during transportation of such patients to or from health care facilities ….” Id., para. 3.10(g).

The justices on both sides of the issue paid particular attention to three of the court’s prior decisions finding section 3.150 applicable: American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274 (2000) (failing to enter the patient’s apartment and locate her); Abruzzo v. City of Park Ridge, 231 Ill. 2d 324 (2008) (failing to assess and evaluate a patient); and Wilkins v. Williams, 2013 IL 114310 (colliding with third party while transporting nonemergency patient). The court distinguished American National and Abruzzo on the basis that those cases involved allegations of patients in need of “urgent emergency” medical care. Further, the court observed that the key to determining the scope of immunity as discussed in those two cases is whether the situation involves “preparatory conduct integral to providing emergency treatment.” The court found that the defendant in this case, in allegedly driving and running a red light before reaching the scene of a non-emergency transport, was not involved in conduct that is integral to providing non-emergency care. The driver would first have to arrive at the scene.

The court read the word “before” in the phrase “before or during transportation of such patients” not to encompass driving to the pick-up location. According to the court, the only logical meaning of “before” was limited by the reference to the “medical care, clinical observations or medical monitoring rendered,” and referred to an EMT’s conduct upon arrival at the scene. The court read the language to indicate the legislature’s intent to encompass conduct such as locating a patient for non-emergency transport at the pickup location, assessing the patient’s condition before transport, and other preparatory activities at the pickup location. Based on this interpretation, the court affirmed the judgment of the appellate court, which reversed the trial court’s dismissal order.

Justice Neville’s comprehensive dissent found fault with what he viewed as the majority’s misapprehension of the plain language of the EMS Act and failure to appreciate its broad scope and purpose, as well as the clear definition of non-emergency medical services. Justice Neville emphasized the language in section 3.10(g) referring to medical services rendered before transport. Finding that the court had departed from governing precedent and invoking the principle of legislative acquiescence, Justice Neville would have affirmed the trial court’s dismissal order.