People v. Hauad, 2016 IL App (1st) 150583 (December). Episode 284 (Duration 5:44)

The Torture Commission Report constitutes only a reassessment of evidence available to defendant before he filed his prior postconviction petitions, and thus it does not qualify as new evidence.

This was a gang double murder.

Facts

The victims were shot after they left a bar.

An eyewitness picked defendant from a photo array and live line-up.

The Commission concluded that, “On balance, the Commission concludes that there is substantial evidence that Hauad's shoes were intentionally cut by police officers while he was in police custody, in an attempt to coerce a confession, and that the case merits judicial review.”

Not a Jon Burge Case

However, the Torture Commission also noted that none of the officers involved previously served as a subordinate to Jon Burge, and therefore the Torture Commission lacked statutory authority to refer the case to the circuit court.

Instead, the Torture Commission could only recommend that the State's Attorney further review the case.

Defendant's Allegations

Defendant argued that the eyewitness did not see the shooter at the scene.

She probably saw one of the victim’s walking south away from the scene, somewhat after the shooter ran off to the north. The report of a witness who saw a red car speeding off north further confirms testimony about the shooter's escape and casts further doubt on the eyewitness identification of Hauad as the man she saw after the shooting.

Hauad presented photographs of himself and one of the victims, showing that they resembled each other.

FBI Letters

Defendant also filed letters from the FBI where another gang member says he say another person committ the shooting.

Additionally, Defendant provided an affidavit from another gang member who said exactly who ordered the shooting and who carried it out. It was not defendant but the same person the FBI agent identified.

Defendant even included a letter from the shooter who apologized for not helping him.

Analysis

Petition Denied

The trial court denied defendant his leave to file a subsequent postconviction petition.

Here the The Torture Commission did not refer to any evidence from other sources. Thus, the Torture Commission provides only a new assessment of previously available evidence and was actually available to defendant at the prior posttrial proceeding.

Hauad relies on seven pieces of evidence, mostly ones he presented to the Torture Commission, to support his claim of innocence. However, the FBI agent conducted the interview in 2001, and, according to the assistant United States Attorney, told Hauad's attorney in 2001 that Hernandez named Maropoulos as the shooter.

Not Newly Discovered Evidence

Hauad does not explain how the statement can qualify as newly discovered evidence.

Moreover, even if the FBI agent could testify about Hernandez's statement, the assistant United States Attorney's letter does not qualify for admission into evidence under any exception to the hearsay rule.

Hauad has also failed to explain why he could not previously have obtained the affidavits before Hauad filed his prior postconviction petitions.

Finally, the evidence casting doubt on the eyewitness’s immigration status does not qualify as evidence that would likely change the result on retrial.

Hauad presented to the Torture Commission evidence he had previously presented in pretrial proceedings, at trial, and in support of prior postconviction petitions, along with evidence apparently available before Hauad filed his prior successive postconviction petition in 2005.

The Torture Commission's reassessment of the previously available evidence does not constitute new evidence.

Holding

The trial court correctly denied Hauad's request for leave to file a claim in a successive postconviction petition based on the Torture Commission's finding.

The court noted there have been credible claims of police torture and gross misconduct. Nonetheless, the record in this case and precludes the relief Hauad seeks.

They encouraged the State's Attorney and the Conviction Integrity Unit to heed the recommendation of the Torture Commission to further investigate the case and Hauad's claim that he was tortured while in police custody.

[They link to a blog!]