1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

 ) 

ADAM THOMAS GRAY ) 

 ) 

 Petitioner, ) 

 ) No. 12-C-1743 

 v. ) 

 ) Honorable Milton I. Shadur 

JOSEPH YURKOVICH, Warden, ) 

 ) 

 Respondent ) 

MEMORANDUM IN SUPPORT OF TIMELINESS 

OF PETITION FOR WRIT OF HABEAS CORPUS

Petitioner ADAM THOMAS GRAY, by his attorneys R. Douglas Rees and Brij Patnaik, 

JENNER & BLOCK, LLP, and Tara Thompson and Rule 711 Law Students Casey Potter and 

Julia Kasper, THE EXONERATION PROJECT AT THE UNIVERSITY OF CHICAGO LAW 

SCHOOL, hereby submits this memorandum in support of the timeliness of his Petition for Writ 

of Habeas Corpus. The Court should find that Adam’s Petition is timely and all his claims 

should be heard because it is predicated on newly-discovered evidence that establishes that he is 

actually innocent. The Court also should find that fairness weighs in favor of granting a stay in 

contemplation of the development of further evidence in proceedings in Illinois state court. 

INTRODUCTION 

Adam Gray was convicted in 1996 of setting a fire at the two-flat apartment building at 

4139 S. Albany Avenue in Chicago that caused the deaths of the two residents of the upstairs 

unit. The State’s theory of the case at trial was based on the confession fourteen-year-old Adam 

gave to police the morning after the fire, in which he said he carried gasoline to the building in a 

plastic milk jug, lit it with a cigarette lighter, then fled down the alley behind the building and 

threw the milk jug there. Following Adam’s confession, police located a milk jug in the alley 

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and submitted the jug and debris samples taken from the rear wood stairs of the building for 

chemical analysis. A chemistry test called “gas chromatography” revealed that both contained 

residue from “heavy petroleum distillates,” or “HPDs.”1 

Adam’s Petition for Writ of Habeas Corpus (the “Petition”) presents new evidence that – 

contrary to the perception created at trial – heavy petroleum distillates simply are not gasoline 

and the gas chromatography results actually prove that no gasoline was in either the debris or the 

milk jug. The Petition also presents evidence based on a newly-developed method for analyzing 

gas chromatography data that the specific type of HPD found in the debris is not the same as that 

found in the milk jug. 

These facts were previously unavailable to Adam both because the method of analyzing 

gas chromatography data that enables chemists to make distinctions among HPDs is new and 

because the State never disclosed the data from the testing performed in Adam’s case at trial, 

despite Adam’s counsel’s specific request in discovery for “any report and results of any and all 

scientific tests.”2

 Adam obtained the chromatography data for the first time only through a 

Freedom of Information Act request in the summer of 2010. Adam then contacted both the 

Chicago Police Department Crime Lab analyst who performed the tests, Murray Shambee, and 

chemistry experts John Lentini and Dr. Gerald Hurst and asked them to review the data. Mr. 

Shambee signed an affidavit in May 2011 acknowledging that the data shows no gasoline was 

present, and Mr. Lentini and Dr. Hurst – fire investigators and chemists at the forefront of their 

field – subsequently provided affidavits explaining that the HPDs do not match. Adam obtained 

 

1

 The term “heavy petroleum distillate” is the more common term for what was referred to at trial 

as a “high boiling petroleum distillate.” (See Ex. 1, Shambee Aff. at ¶ 6.) 

2

 The State disclosed only two single-page reports stating Mr. Shambee’s opinions as to what the 

results of the tests showed. (See Dkt. 1 at 14.) 

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these affidavits in the year prior to filing his Petition and thus they are timely predicates for his 

claims under the habeas statute of limitations. 28 U.S.C. § 2244(d). 

This new evidence – as well as a host of other evidence based on advances in arson 

science and new testimonial evidence that has been collected over the course of several years – 

establishes that Adam’s confession cannot have been true and that, as explained below, there is 

no basis in the physical evidence to believe that an arson occurred at all. 

The evidence as a whole now shows that Adam is actually innocent – that no reasonable 

juror hearing the case today would convict – and thus that all of the claims in his Petition are 

entitled to pass collectively through the “innocence gateway” that permits otherwise-barred 

constitutional claims to be heard on habeas review. Schlup v. Delo, 513 U.S. 298, 315 (1995). 

While the Seventh Circuit has held that a showing of innocence sufficient to invoke the gateway 

does not by itself excuse a habeas petitioner from complying with the statute of limitations, the 

Court has also distinguished between such a “freestanding exception” to the statute of limitations 

and a petition demonstrating innocence through newly-discovered evidence. Araujo v. Chandler, 

435 F.3d 678, 681 (7th Cir. 2005); Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005). 

Adam’s Petition falls into the latter category and thus should be heard in its entirety. 

Alternatively, even if the Court finds that Adam’s Petition cannot pass through the innocence 

gateway as a whole, it still should find that each of his claims is individually timely because they 

are based either on the new chemistry evidence or pending Supreme Court decisions. 

SUMMARY OF EVIDENCE AT TRIAL 

The evidence presented at trial is described in the Petition at pages 8-10. (Dkt. 1.) A 

shorter overview is provided here to illustrate the significance of the new evidence. 

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The principal evidence presented by the State at trial was (1) Adam’s confession, given 

after approximately six hours of early-morning interrogation without his mother or brother 

present, that he had taken a milk jug to a Clark gas station, bought $2 of gasoline from “a black 

lady,” used it to start the fire, then run down the alley behind Albany Avenue past “some guy” 

and thrown the milk jug by a concrete slab; (2) the testimony of a Clark station attendant, Brenda 

Thomas, that Adam had purchased $2 of gasoline from her the night of the fire; (3) the testimony 

of CPD Detective Nicholas Crescenzo that he found a milk jug smelling of gasoline where Adam 

confessed to have discarded one; (4) the testimony of CPD crime lab analyst Murray Shambee 

that the milk jug and debris from the rear porch stairs contained residue from a “high boiling 

petroleum distillate,” and that this was an accelerant; (5) the testimony of Fire Marshal Joseph 

Gruszka and Detective Ernest Rokosik that burn patterns indicated the fire was caused by an 

accelerant poured on the rear stairs; (6) the testimony of a fourteen-year-old peer of Adam’s who 

lived in the first-floor apartment at 4139 S. Albany, Kasey Paris, that Adam had threatened her in 

the months leading up to the fire; and (7) the testimony of a friend of Paris’ brother, Karrie 

Kelly, that she had seen Adam run past her down the alley behind 4139 S. Albany near the time 

of the fire. 

The prosecution argued in opening and closing that the fire was started using gasoline 

and that the physical evidence corroborated the confession. 

The witnesses presented by the defense at trial were Adam’s friend Mel Gonzalez, his 

sister Rosemary Gonzalez, and his mother Lita Gonzalez. The Gonzalezes all testified that 

Adam had gone to sleep on the sofa in their living room – where Mel and his brother also had 

slept – the night of the fire and that they had not heard him get up or leave the house. Adam’s 

mother and brother also testified that they had gone to the police station and waited there for 

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several hours while Adam was being interrogated but had not been allowed to see him. While 

Adam’s attorneys impeached some of the testimony of the State’s witnesses described above on 

cross-examination, they did not present any evidence that contradicted it. 

NEW EVIDENCE PRESENTED IN THE PETITION 

Adam’s Petition is predicated on the newly-discovered facts that no gasoline was in the 

fire debris or the milk jug and that the HPD in the debris did not come from the HPD in the milk 

jug. These facts are two of several important discoveries that establish that fourteen-year-old 

Adam’s confession cannot have been true and that he was convicted of a crime he did not 

commit. 

No testimony was presented at trial explaining the critical fact that no gasoline was found 

in the chemistry testing. The State elicited testimony only that “high boiling petroleum 

distillates” were found and describing these substances only as “accelerants.” The State then 

repeatedly argued in opening and closing that the fire was started with gasoline, creating the 

impression that the finding of HPDs was consistent with a finding of gasoline. Adam’s defense 

counsel – who apparently never understood the chromatography evidence – never presented any 

evidence that refuted this idea.3 Heavy petroleum distillates are simply an entirely different 

category of substances from gasoline, however, comprising products such as diesel fuel, 

kerosene, and home heating oils. None of these products were available for purchase at the 

Clark gas station. 

 

3

 This failure is the principal basis of Adam’s claim of ineffective assistance of counsel. See 

United States v. Hebshie, 754 F. Supp. 2d 89, 120 (D. Mass. 2010) (“a reasonably competent 

counsel would have challenged the test results of ‘light petroleum distillate’ and their 

characterization as accelerants... ‘light petroleum distillate’ is such a generic category and 

includes so many benign chemicals that it literally has no meaning in connection with a finding 

of ‘incendiary intent.’”) 

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The newly-discovered fact that the HPD in the fire debris did not come from the milk jug 

takes the chemistry evidence a crucial step further, conclusively rebutting the State’s theory that 

the milk jug corroborated Adam’s confession. The fact that a milk jug was found in the precise 

spot where Adam confessed to have put one and – to all appearances – contained the same type 

of petroleum substance as that found in the fire debris was powerful evidence at trial. In closing 

argument, an Assistant State’s Attorney brandished the milk jug before the jury, stating: “He 

goes to the Clark gas station with an empty plastic gallon of milk, this one.”4 The fact that the 

chemistry testing disproves both the State’s theory and Adam’s confession – and that the milk 

jug thus is actually exculpatory evidence – is highly significant.5

 

In addition to the facts that the chemistry results show no trace of gasoline and the HPDs 

in the fire debris and the milk jug do not match, other evidence presented for the first time in the 

Petition further establishes that Adam is innocent. 

First, the Clark gas station attendant – Brenda Thomas – has recanted her testimony and 

now avers that she identified Adam only because of police pressure to do so. (See Dkt. 1 at 11.) 

Ms. Thomas’ recantation is consistent with the fact that the chemistry evidence shows that no 

gasoline was involved in the fire and the fact that the HPDs detected could not have been 

purchased at the Clark station. Her recantation is also corroborated by the fact that no receipts or 

 

4

 The State’s actions in eliciting half-true testimony that heavy petroleum distillates were found, 

but not explaining that those were not gasoline, and specifically arguing that the milk jug was 

used to carry gasoline while knowing that was practically impossible, are the basis of Adam’s 

misconduct claim. See United States v. Freeman, 650 F.3d 673, 680 (7th Cir. 2011) (due process 

prohibits the State from making arguments based on “half-truths and vague statements that could 

be true in a limited, literal sense but give a false impression to the jury”) (internal quotations 

omitted). 

5

 The milk jug had no fingerprints and photographs show it was crushed, yellowed, and covered 

with settled dust when found. (See Exs. 2 and 3, photos of the milk jug.) 

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surveillance tapes from the Clark station showing a purchase of $2 of gasoline at around 2:30 

AM were introduced at trial.6

 (Id. at 8.) 

Second, the fact that only an HPD, as opposed to gasoline, was found in the fire debris 

leads to the further conclusion that there is no basis from the physical evidence to believe that the 

fire was an arson at all. (Id. at 11.) Dr. Gerald Hurst, one of the leading arson investigators in 

the country, explains that HPDs are not nearly as flammable as gasoline and almost certainly 

could not have been used by an arsonist to start the fire in this case.7 Hurst states that the 

presence of HPD in the wood debris was instead probably due to the fact that HPDs are used as 

solvents in common wood preservatives. Hurst further attests that the testimony of fire 

investigators at trial that the burn patterns indicated the fire was an arson is now known to be 

entirely mistaken – indeed, was out of step with consensus standards even at the time of trial – 

and that no physical evidence indicates an accelerant was involved. 

Third, Kasey Paris has recanted her testimony that Adam threatened her and now states 

that police “coached” her to misrepresent an adolescent spat as something sinister. (Id.) 

 

6

 The reliability of Ms. Thomas’ affidavit is further demonstrated by the facts that she does not 

know Adam Gray and had nothing to gain by recanting her trial testimony, and that she gave her 

affidavit in 2006 prior to Adam obtaining expert review of the chemistry evidence that informed 

him that no gasoline was present. 

7

 In this regard, Hurst discusses a Department of Justice study that tested the effect of igniting 

kerosene (which is classified as an HPD) spilled on wood flooring and found that “[t]he kerosene 

failed to ignite in most cases. In some of the experiments, the kerosene did ignite in the locality 

of the matches and slowly spread in the confines of the cracks in the floor ... The kerosene fires 

self-extinguished leaving large areas of the spill unburned.” (Ex. 4, Hurst Aff. at 10, quoting 

Anthony D. Putorti, “Flammable and Combustible Liquid Spill/Burn Patterns” (NIJ Report 604-

00) at 7, National Institute of Justice, Washington (2001).) 

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Fourth, Karrie Kelly – the lone unrecanted eyewitness – has also submitted an affidavit 

revealing that she was on a prescription muscle relaxant the morning of the fire and that police 

told her an arsonist would go free if she did not make an identification. (Id.) 

Thus, as set forth more fully in the Petition, the only significant evidence remaining 

against Adam is his confession – which is now known to be inconsistent with both the physical 

evidence and eyewitness accounts – and Karrie Kelly’s identification of him as the person she 

saw running down the alley around the time of the fire. This evidence is insufficient to support a 

conviction beyond a reasonable doubt and Adam is entitled to habeas relief. 

ARGUMENT

This Court should find that Adam’s Petition is predicated on new, timely evidence that 

establishes that he is actually innocent and thus that all of his claims advance through the 

innocence gateway together. The Court alternatively should find that each of Adam’s claims is 

timely when considered on an individual basis. The Court further should find that fairness and 

economy weigh in favor of staying proceedings pending the development of additional new 

evidence in state court. 

I. A Petitioner Who Establishes His Actual Innocence Based On Newly-Discovered 

Evidence Is Entitled To Relief From Constitutional Violations At Trial. 

Adam’s Petition should be heard in its entirety because he sets forth previouslyunavailable evidence of actual innocence that entitles his claims of constitutional violations at 

trial to be heard. The Supreme Court has held that in order to prevent a fundamental miscarriage 

of justice, a habeas petitioner who makes a sufficient showing of his innocence may pass through 

a “gateway” that permits claims of constitutional violations at trial to be heard where they would 

otherwise be barred by procedural defaults. See Murray v. Carrier, 477 U.S. 478, 495-96 

(1986); Schlup v. Delo, 513 U.S. 298, 326-27 (1995); House v. Bell, 547 U.S. 518, 539 (2006). 

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A gateway claim of innocence thus “is procedural, rather than substantive.” Schlup, 513 U.S. at 

314. To establish a gateway claim, a petitioner must demonstrate “that more likely than not, in 

light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” 

Id. at 326. While it is only the “extraordinary case” that meets this standard, the showing 

required is less than that necessary to establish a substantive claim of innocence. House, 547 

U.S. at 538, citing Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming, without deciding, 

that such a claim exists).8 

The Seventh Circuit has treated the enactment of a statute of limitations applicable to 

habeas petitions under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 

differently from the majority of other circuits to address the issue, stating that petitioners 

“claiming to be innocent, like those contending that other events spoil the conviction, must meet 

the statutory requirement of timely action.”9 Escamilla, 426 F.3d at 872. Adam’s Petition is 

 

8

 The Court has explained that this difference is based on the premise that where a petitioner 

“accompanies his claim of innocence with an assertion of constitutional error at trial,” his 

“conviction may not be entitled to the same degree of respect as one... that is the product of an 

error-free trial.” Schlup, 513 U.S. at 316. 

9

 The Sixth, Ninth, Tenth, and Eleventh Circuits have held that a showing of actual innocence 

does create a freestanding exception to the statute of limitations. Souter v. Jones, 395 F.3d 577, 

602 (6th Cir. 2005); Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc); Lopez v. 

Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010); San Martin v. McNeil, 633 F.3d 1257, 1267-68 

(11th Cir. 2011). The Second and Eighth Circuits have left the question open. Doe v. Menefee, 

391 F.3d 147, 161 (2d Cir. 2004) (Sotomayor, J.) (holding, contrary to Escamilla, that the canon 

of constitutional avoidance counsels against resolving the question where petitioner could not 

actually establish actual innocence); Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002). The 

First Circuit has expressed skepticism about the exception and the Fifth Circuit has rejected it. 

Riva v. Ficco, 615 F.3d 35, 44 n.4 (1st Cir. 2010); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 

2002). 

The broad statement in Escamilla that “‘actual innocence’ is unrelated to the statutory timeliness 

rules,” 426 F.3d at 871, is itself subject to question. The opinion Escamilla cites for that point 

actually indicates that a showing of innocence may call for equitable tolling of the statute of 

limitations, as the majority of circuits have held: Gildon v. Brown, 384 F.3d 883, 887 (2004) 

(stating that the Court found “persuasive” the Eighth Circuit’s caution that its decisions should 

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based on newly-discovered evidence under AEDPA’s statute of limitations, however, and thus is 

fully in line with this precedent. Indeed, a Seventh Circuit opinion following Escamilla made 

clearer the distinction between a “freestanding exception” to the statute of limitations – rejected 

by Escamilla – and an innocence petition predicated on new evidence that meets the limitations 

period established by section 2244(d)(1)(D). Araujo v. Chandler, 435 F.3d 678, 681 (7th Cir. 

2005); accord Rivera v. Trujillo, No. 10-C-7990, 2011 U.S. Dist. LEXIS 50955, at *12 (N.D. Ill. 

May 12, 2011) (“the only way in which Rivera's assertion of actual innocence could toll the oneyear statute of limitations period would be if it were based on a factual predicate that could not 

have been discovered earlier through the exercise of due diligence”), quoting Blackwell v. 

McCann, No. 06-CV-06789, 2008 U.S. Dist. LEXIS 75092, at *20 (N.D. Ill. Sept. 29, 2008).10

It is clear that Congress’ enactment of a statute of limitations was not designed to abolish 

the innocence gateway. To the contrary, Congress expressly adopted the gateway with respect to 

 

not be read to hold “that actual innocence can never be relevant to a claim that the habeas statute 

of limitations should be equitably tolled”), quoting Flanders, 299 F.3d at 978. 

Moreover, Escamilla is in tension with the Supreme Court’s recent decision in Holland v. 

Florida, 130 S. Ct. 2549 (2010), that AEDPA’s statute of limitations is subject to equitable 

tolling, and the Seventh Circuit has not yet revisited the issue following that case. In Holland, 

the Court held that the statute of limitations should be tolled where a petitioner’s lawyer ignored 

the petitioner’s repeated warnings that the petition needed to be timely filed. Id. at 2560. It 

would exalt procedure over substance – contrary to the very purpose of equity – for courts to 

hear the claims of a petitioner whose lawyer missed a deadline but refuse to hear the claims of a 

petitioner who is actually innocent. As the Court stated in Holland: “The importance of the 

Great Writ, the only writ explicitly protected by the Constitution, along with congressional 

efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting 

AEDPA’s statutory silence as indicating a congressional intent to close courthouse doors that a 

strong equitable claim would ordinarily keep open.” Id. at 2562 (citations omitted). 

10 Similarly, in Souter v. Jones the Sixth Circuit first considered whether an affidavit from a 

witness who testified at trial was newly discovered, and thus constituted the “factual predicate[] 

which commences the statute of limitations period,” before ultimately holding that innocence is a 

freestanding exception to the statute of limitations. 395 F.3d at 587 & 600 n.15 (6th Cir. 2005). 

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successive petitions in § 2244(b)(2)(B), changing existing law only by requiring the showing of 

innocence in successive petitions to be made by “clear and convincing evidence.” See House, 

547 U.S. at 539. It would not make sense to construe the statute to permit successive petitions to 

pass through the actual innocence gateway but not first petitions. See id. (“dismissal of a first 

federal habeas petition is a particularly serious matter”) (emphasis original), quoting Lonchar v. 

Thomas, 517 U.S. 314, 324 (1996). As the Supreme Court stated in the course of holding that a 

court of appeals may recall its mandate denying a habeas petition in light of new evidence of 

actual innocence, “[t]he miscarriage of justice standard is altogether consistent... with AEDPA’s 

central concern that the merits of concluded criminal proceedings not be revisited in the absence 

of a strong showing of actual innocence.” Calderon v. Thompson, 523 U.S. 538, 558 (1998). 

The operation of the innocence gateway based on new evidence is illustrated by a recent 

case out of the Eighth Circuit, Engesser v. Dooley, No. 10-civ-5039-KES, 2011 U.S. Dist. 

LEXIS 114045 (D.S.D. Sept. 30, 2011).11 There a habeas petitioner had been convicted of 

vehicular homicide on the theory that he had been driving a convertible drunk when it crashed, 

killing a woman riding with him. The petitioner filed three unsuccessful post-conviction 

petitions in state court and one habeas petition asserting that he actually had been the passenger 

in the car and the decedent had been the driver, and arguing that his trial counsel was ineffective 

for failing to call two eyewitnesses who would have testified to that effect. Id. at *4. After a 

third eyewitness previously-unknown to the petitioner then came forward and also reported that 

the decedent had been the driver, the petitioner again sought habeas relief. Id. at *30. The 

 

11 Cases like Engesser that are in the same procedural posture as Adam’s are even more unusual 

than the already extraordinary innocence-based habeas petition because (1) most prisoners that 

can establish their innocence win relief in state court, as Adam hopes to here, and (2) as 

explained above, most circuits have held that the statute of limitations is inapplicable to claims of 

actual innocence and thus that no timely factual predicate is necessary. 

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court found that the new eyewitness’ testimony established it was more likely than not that no 

reasonable juror would convict the petitioner, allowing his constitutional claims to advance 

through the gateway. Id. at *41. The court then found that the petitioner’s trial counsel was 

ineffective for failing to call the two eyewitnesses who had been available at trial. Id.

Similarly here, Adam has presented new evidence that shows that he would be acquitted 

on re-trial and his constitutional claims should be heard. 

II. The Newly-Discovered Evidence That The HPDs Do Not Match Establishes That 

Adam Gray Is Actually Innocent. 

The newly-discovered fact that the HPD in the wood debris did not come from the milk 

jug is a timely factual predicate for Adam’s Petition. In light of that new fact and other evidence 

never before presented, Adam Gray has demonstrated his innocence and is entitled to have his 

constitutional claims be heard. 

A. The Fact That The HPD In The Wood Debris Does Not Match The HPD In The 

Milk Jug Is New, Previously-Undiscoverable Evidence. 

AEDPA’s statute of limitations requires habeas petitions based on new evidence to be 

filed within one year of the “date on which the factual predicate of the claim or claims presented 

could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). 

John Lentini’s affidavit dated January 11, 2012, is the first evidence Adam obtained that the 

HPDs are different. (Ex. 5, Lentini Aff. at 13.) Gerald Hurst provided his affidavit with the 

same opinion on February 13, 2012. (Ex. 4, Hurst Aff. at 13.) Adam’s counsel first learned that 

the HPDs might be different from Hurst in late March 2011. (Ex. 6, Patnaik Aff. at ¶ 5.) 

Lentini and Hurst’s opinion that the HPDs do not match is based on a method for 

analyzing the results of gas chromatography tests that was developed only in recent years, and 

Adam thus exercised due diligence in obtaining it. New scientific evidence is a prototypical 

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basis for actual innocence claims. See House, 547 U.S. at 537 (granting gateway claim based on 

new DNA evidence). 

A brief description of the nature of gas chromatography testing is provided here to 

explain the new analysis that permits differentiation of HPDs. Gas chromatography works by 

heating a sample to separate its component chemical molecules, which are then individually 

guided through an electrical field and a corresponding detector that registers the current they 

produce. (Ex. 5, Lentini Aff. at ¶ 14.) The actual data produced by a chromatography machine 

is simply the strength of the current produced by each molecule. (Id.) This data is displayed on 

a “chromatogram,” a line graph printed by the chromatography machine where the current is 

shown on the y-axis and the time each molecule passed through the detector is shown on the xaxis. (Id. at ¶ 15.) The peaks of the line graph thus correspond to individual chemical molecules 

that chemical experts can identify through reference to known standards. (See id. at Ex. C.) 

Chemist John Lentini, a former Chair of the American Society for Testing and Materials 

(“ASTM”) Committee on Forensic Science, explains that most forensic laboratories perform gas 

chromatography testing in accordance with the applicable ASTM standard, ASTM E1618. (Id. 

at ¶ 15.) That standard calls for identifying ignitable liquid residues as belonging to one of eight 

general classes, two of which are gasoline and petroleum distillates. (Id. at ¶ 43.) Petroleum 

distillates are further subdivided into three subclasses: light, medium, and heavy. (Id.) The 

standard states that characterization of a substance beyond a subclass “may be possible, but it is 

beyond the scope of the test method.” (Id.) 

Lentini explains that he was able to distinguish between two different substances 

classified as medium petroleum distillates for the first time in 2005 by assessing how their 

different evaporation rates affected their appearance on a chromatogram. (Id. at ¶¶ 38-43.) 

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Specifically, because lighter molecules evaporate more readily than heavier molecules, a sample 

that has been exposed to fire and evaporated significantly should have a relatively higher ratio of 

heavy molecules to light molecules. (Id. at ¶ 41.) Where, as here, a sample taken from fire 

debris has a relatively higher proportion of light molecules than a less-evaporated sample, it can 

be concluded that the former sample was composed of lighter molecules to begin with. (Id. at ¶ 

40.) Lentini states that this method of distinguishing among petroleum distillates has never been 

published in the scientific literature, but is based on fundamental principles that have been 

known for decades. (Id. at ¶ 43.) 

Dr. Gerald Hurst, another highly-accomplished chemist and fire investigator, agrees with 

Lentini’s opinion, stating that laboratory analysts have never been trained on making distinctions 

among different kinds of HPDs and “even in recent years the knowledge that the two HPD in this 

case are different would have been unavailable to Mr. Gray without examination by a very select 

group of chemists in the field.”12 (Ex. 4, Hurst Aff. at 3.) Murray Shambee, the CPD crime lab 

analyst who conducted the original testing, also confirms that that lab “does not distinguish 

among substances classified as high boiling petroleum distillates and does not train analysts to 

make those distinctions.” (Ex. 1, Shambee Aff. at ¶ 7.) 

Moreover, aside from the new analytical basis for making distinctions among HPDs, the 

knowledge that the HPDs in the debris and milk jug are different was entirely unavailable to 

Adam prior to the summer of 2010, when he first received the actual chromatograms in this case 

through a Freedom of Information Act request. (Ex. 6, Patnaik Aff. at ¶ 3.) Since the 

 

12 Hurst received his Ph.D. in chemistry from Cambridge University in 1963, holds multiple 

patents from his work as a chemist, and served as the Chief Scientist for several major explosives 

manufacturers before beginning work as a consultant in the field of explosion and fire analysis. 

(Ex. 4, Hurst Aff. at Ex. A.) 

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chromatograms are the sole documents containing the actual data from the test, Adam obviously 

could not have any expert review the results of the test without them. The fact that the State 

never disclosed the chromatograms despite Adam’s specific request for “any report and result of 

any and all scientific tests” is the basis for Adam’s Brady claim. (See Dkt. 1 at 14.) 

In light of these facts, the Court should find that Adam exercised due diligence in 

discovering that the HPDs found in this case are different. 

B. The Evidence As A Whole Now Establishes That Adam Gray Is Innocent. 

As set forth above, the new evidence presented in the Petition undercuts virtually the 

entirety of the State’s case at trial. The Court should consider all of this evidence in deciding 

whether Adam has set forth a claim of actual innocence. House, 547 U.S. at 539 (“the Schlup 

inquiry [] requires a holistic judgment about ‘all the evidence’”) (citations omitted). The only 

remaining evidence tending to show that Adam is guilty of starting the fire is the confession he 

gave to police and Karrie Kelly’s eyewitness testimony. This evidence is insufficient to sustain a 

conviction beyond a reasonable doubt. 

Adam’s confession should no longer be seen as credible in any respect. It was elicited 

when he was seven weeks past age fourteen, after nearly six hours of interrogation, while his 

mother and brother were undisputedly at the station asking to speak with him. As the Supreme 

Court recently stated, “the pressure of custodial interrogation is so immense that it can induce a 

frighteningly high percentage of people to confess to crimes they never committed. That risk is 

all the more troubling—and recent studies suggest, all the more acute—when the subject of 

custodial interrogation is a juvenile.” JDB v. North Carolina, 131 S. Ct. 2394, 2401 (2011) 

(emphasis added), citing Drizin & Leo, The Problem of False Confessions in the Post-DNA 

World, 82 N.C. L. Rev. 891, 906-907 (2004). The Court has also long held that the pressures 

Case: 1:12-cv-01743 Document #: 14 Filed: 04/12/12 Page 15 of 22 PageID #:59
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brought to bear in an interrogation are of particular concern when police actively prevent parents 

from seeing their children. Gallegos v. Colorado, 370 U.S. 49, 54 (1962) ( a “14-year-old boy, 

no matter how sophisticated, is unlikely to have any conception of what will confront him when 

he is made accessible only to the police”); accord In re R.T., 313 Ill. App. 3d 422, 430 (1st Dist. 

2000) (stating that preventing parents from seeing their children during an interrogation 

“suggests that, at worst, the police were trying to coerce a confession and at best that they were 

conducting the interrogation without due regard for the suspect’s age”).13

Aside from the general concerns with juvenile interrogations, we now know that the 

physical evidence in this case is entirely inconsistent with Adam’s confession. While Adam 

confessed to using a milk jug filled with gasoline to start the fire, chemical evidence now 

establishes that neither the milk jug nor the fire debris contained any gasoline residue. It also 

cannot be the case that Adam confessed to using “gasoline” when he meant an HPD like diesel 

fuel or kerosene because (1) the HPD in the fire debris did not come from the milk jug, (2) the 

Clark gas station did not sell diesel or kerosene, and (3) chemistry experts explain that HPDs are 

difficult to ignite at low temperatures and frequently self-extinguish when lit. Furthermore, it 

cannot be the case that the police somehow picked up the wrong container, because they 

emphatically testified that this was the only container of any kind near the fire scene.14 This 

 

13 Cf. Hardaway v. Young, 302 F.3d 757, 759-60 (7th Cir. 2002) (upholding as not unreasonable 

a state court finding that a fourteen-year-old’s confession was voluntary despite the “gravest 

misgivings” where youth was interrogated for a total of ninety minutes before confessing, had 

extensive experience with police, and whose father was offered a ride to the station to be present 

during interrogation). In contrast, Adam had no prior convictions and police affirmatively 

prevented his family from being present. 

14 Det. Crescenzo testified as follows: 

 Q: Detective, were there any other containers by the garage slab? 

A: No. 

Q: Were there any containers out there at all? 

A: No. 

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physical evidence is corroborated by Brenda Thomas’ recantation – who now states that she 

never saw Adam purchase gasoline and reports being pressured to make an identification by Det. 

Nicholas Crescenzo, the same detective who interrogated Adam. 

Given the new understanding of the sensitivity of juvenile confessions and the new 

physical and eyewitness evidence that disproves Adam’s confession, this Court should not give it 

any weight. 

The only remaining piece of evidence against Adam – Karrie Kelly’s eyewitness 

testimony – is questionable on multiple grounds and is not a sufficient basis to support a 

conviction beyond a reasonable doubt. As set forth in the Petition, Kelly did not identify Adam 

by name as the person she saw or even state that that person looked familiar before picking him 

out of a line-up, despite the fact that she had known him. (See Dkt. 1 at pp. 12-13.) Between the 

time she saw the person in the alley and the time she viewed the lineup, Kelly had gone back to 

the scene of the fire where her friend Scott Sondelski and his sister Kasey Paris were publicly 

accusing Adam of having started the fire, accusations which likely influenced her identification. 

Moreover, Kelly’s testimony was inconsistent with her statements to police, most notably in that 

she testified that the person she saw had red hair while she did not mention this detail in multiple 

previous interviews. (Id.) Kelly’s new disclosure that she was on muscle relaxants suggests 

even more strongly that her memory of the incident was likely shaped by later events. 

Kelly’s testimony stands in contrast to the testimony of Mel Gonzalez, his sister 

Rosemary, and his mother Lita that Adam was asleep on their living room sofa and remained 

there until police – based on fire investigators’ mistaken beliefs that the fire was an arson and 

now-recanted allegations from fourteen-year-old Kasey Paris – came to arrest him. 

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In sum, the evidence now establishes that it is more likely than not that if Adam were 

tried again, any reasonable jury viewing the record as a whole would have reasonable doubt. 

III. Each of Adam’s Claims Of Constitutional Violations At Trial Are Based Directly 

On The Evidence That No Gasoline Was Involved In The Fire, Which Adam 

Obtained Within The Year Through The Exercise Of Due Diligence. 

If the Court were to find that Adam’s Petition does not advance through the gateway as a 

whole based on the new evidence that the HPDs do not match, it still should find that each of his 

claims are based directly on factual predicates obtained within the past year through the exercise 

of due diligence. Adam’s first, second, third, fourth, sixth, seventh and ninth claims15 all rest on 

the critical fact that the chromatography evidence shows that no gasoline was present in the 

samples. (Dkt 1. at 10-17.) Adam obtained this evidence for the first time on April 22, 2011, 

when CPD analyst Murray Shambee signed his affidavit.16 See Souter, 395 F.3d at 586 

(analyzing beginning of limitations period by the dates affidavits were obtained). As discussed 

above, any review of the chromatography evidence was impossible until the summer of 2010 

when Adam’s counsel received the chromatograms for the first time through a FOIA request. 

Adam thus exercised due diligence in locating Mr. Shambee and obtaining an affidavit from him 

acknowledging that the chromatograms came from his testing and giving his opinion that the 

chromatograms show that no gasoline was present. 

 

15 Specifically, these are the claims (1) that Adam is actually innocent; (2) that his trial counsel 

was ineffective; (3) that the prosecutors committed misconduct; (4) that the State violated Brady 

by failing to disclose the chromatograms that show that no gasoline was present; (6) that Adam’s 

Fifth and Fourteenth Amendment rights were violated by use of his objectively false, coerced 

confession, (7) that his appellate counsel was ineffective; and (9) that the cumulative errors at 

trial violated due process. 

16 Note that whether or not Adam’s trial counsel could have elicited the fact that no gasoline was 

present by asking Shambee that question at trial is irrelevant to when he could have obtained the 

factual predicate for his ineffective assistance and due process claims because he did not acquire 

those claims until after trial. 

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Moreover, Adam’s fifth claim – that police violated due process by pressuring Brenda 

Thomas to identify him – was also raised in a timely fashion. While Adam obtained Thomas’ 

affidavit in 2006, (see Dkt. 1 at 11), he could not have brought a successful due process claim 

with her affidavit alone. See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (a due process violation 

based on suppressed evidence requires a showing that the evidence is material). Given the 

seemingly strong physical evidence against Adam that gasoline was found in the debris and the 

milk jug, he could not have established that the police’s influence on Ms. Thomas testimony had 

a material effect on his conviction. 

Adam’s eighth claim – that the Eighth Amendment prohibits imposing a mandatory 

sentence of life without parole on a fourteen-year-old – is raised here in anticipation of the 

Supreme Court’s forthcoming opinions in Jackson v. Hobbs, No. 10-9647 (U.S. Nov. 7, 2011), 

and Miller v. Alabama, No. 10-9646 (U.S. Nov. 7, 2011) and consideration of it should be stayed 

pending resolution of those cases. 

IV. This Action Should Be Stayed To Accommodate Further Factual Developments In 

State Proceedings. 

 Even if the Court were to find that Adam’s claims do not advance through the innocence 

gateway or that his claims are not each based upon a timely factual predicate, two other 

considerations weigh in favor of a stay until state proceedings conclude. First, all of the 

evidence uncovered since Adam’s trial has been obtained without subpoena power, and further 

new evidence may arise in the course of discovery or hearings in the proceedings on Adam’s 

post-conviction petition in Illinois state court. If the Court dismissed Adam’s Petition, that new 

evidence could only be presented to a habeas court as part of a successive petition and subject to 

the stringent requirements of § 2244(b), which requires a showing of actual innocence to be 

made by “clear and convincing evidence.” See House, 547 U.S. at 539. Adam should not be 

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penalized for filing Petition within one year of obtaining the evidence presented here, which he 

was required to do to comply with AEDPA’s statute of limitations. See De Jesus v. Acevedo, 

567 F.3d 941, 943 (7th Cir. 2009) (“§2244(d) is an independent federal rule”). 

 In addition, the Supreme Court has held that AEDPA’s statute of limitations may be 

waived by the State. Day v. McDonough, 547 U.S. 198, 211 n. 11 (2006). In a case such as this, 

where a fourteen-year-old was sentenced to life without parole based on what is now universally 

acknowledged to be mistaken arson science, prosecutors’ decision to mislead the jury regarding 

the meaning of the chromatography evidence, a Brady violation that prevented the defense from 

having experts independently review the chromatography results, and police pressuring 

witnesses to give false testimony, there are substantial equitable reasons to allow Adam Gray to 

have – for the first time – a fair trial. 

CONCLUSION 

Adam Gray’s Petition is based on newly-discovered, never-before-presented facts that 

establish that he is actually innocent, and he thus is entitled to relief from the constitutional 

violations that resulted in his conviction. Fairness also counsels that this Court stay proceedings 

pending the resolution of his claims in state court. 

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Dated: April 12, 2012 

By:

Respectfully submitted, 

/s/ R. Douglas Rees 

 

 

Tara Thompson 

Casey Potter, Law Student 

Julia Kasper, Law Student 

THE EXONERATION PROJECT 

The University of Chicago Law School 

1111 E. 60th Street 

Chicago, IL 60637 

Phone: (773) 702-9611 

Email: tthompson@law.uchicago.edu 

 One of Petitioner’s attorneys 

R. Douglas Rees 

Brij B. Patnaik 

JENNER & BLOCK LLP 

353 N. Clark Street 

Chicago, IL 60654-3456 

Phone: (312) 840-8662 

Fax: (312) 840-8762 

Email: bpatnaik@jenner.com 

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22 

CERTIFICATE OF SERVICE

I, Brij B. Patnaik, hereby certify that a copy of the foregoing Memorandum In Support 

of Timeliness of Petition for Writ of Habeas Corpus was served upon the following on April 

12, 2012, by the Court’s CM/ECF system, in accordance with the Administrative Procedures for 

the Case Management/Electronic Case Filing System for the Northern District of Illinois. 

 Leah M. Bendik 

 Assistant Attorney General 

 Criminal Appeals Division 

 100 W. Randolph, 12th Floor 

 (312) 814-5029 

 LBendik@atg.state.il.us 

 

Dated: April 12, 2012 

By: /s/ Brij B. Patnaik 

 

 

Tara Thompson 

Casey Potter, Law Student 

Julia Kasper, Law Student 

THE EXONERATION PROJECT 

The University of Chicago Law School 

1111 E. 60th Street 

Chicago, IL 60637 

Phone: (773) 702-9611 

Email: tthompson@law.uchicago.edu 

 One of Petitioner’s attorneys 

R. Douglas Rees 

Brij B. Patnaik 

JENNER & BLOCK LLP 

353 N. Clark Street 

Chicago, IL 60654-3456 

Phone: (312) 840-8662 

Fax: (312) 840-8762 

Email: bpatnaik@jenner.com 

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