## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Wrice , 2012 IL 111860

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellant, v. STANL EY WR I CE, Appellee.

Docke t No. 111860

Filed Fe bruar y 2, 2012

Held ( Note : This syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e use of a defe ndant’s phy sically coer ced confe ssion as substan t i v e evidenc e of his guilt is never harmless err or and can es t abli sh the “pre judice” prer equisi te for leave to file a succe ssive postconviction petition.

Dec ision Under Review Appea l from the Appellate Court for the First District; heard in that court

on appea l from the Ci rcuit Court of Cook County
, the Hon. Evely n B. Clay , J udg e, pre siding.

J udg ment Affir med as modified; ca

use re manded with dire ctions.Counsel on

Appea l L isa Madig an, Attorney Gene ral, of Springf ield, and St

u a rt A. Nudelman, Special State’s Attorney
, of Chicag o (Myles P. O’Rourke
, Andre w N. L evine, Rafae l A. Bo m bino and Br ian J

. Stefanich, Assistant Special State’s Attorney s, of counse l), for the People.

Micha el J

. Pelletier, State Appellate Def ender
, Alan D. Goldberg
, Deputy Def ender
, and Heidi L inn L ambros, Assistant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Chicag o, for a

ppellee.

R o bert M. Stephenson and Steven W. Be cker
, of Be cker Stephenso n L L C, of Chicag o, for amicus curiaethe Chicag o Innocenc e Projec t.

G. Flint Taylor, J r., and J oey L

. Moguel, of the People’s L aw Offic e, and L ocke E. Bowman and Al ex a A. Van Brunt, all of C hicag o, for amicus curiae Persons Concerne d about the Integrity of the I llinois Criminal J ustice Sy stem.

J ustices J USTI CE THEI S delivered the judgme nt of the cour t, with opinion. Chief J u s t ice Kilbride and J ustices Fr eema n, Gar man, Kar meier, and Bur ke conc urre d in the judgme nt and opinion.
J ustice Thomas took no par t in the decision.

OP INION

¶ 1 I n Oc tober 2007, defe ndant Stanley Wrice filed a petition in the circ uit court of Cook Co u nty s e e k in g le ave to file a second succe ssive postconviction petition challeng ing his 1983 convictions for rape and deviate sexual assault. Def endant alleg ed that newly discovere d evidenc e substantiated his prior claim that his confe ssion was the product of police brutality and torture. The trial court denied defe n d an t leave to file his succe ssive postconviction petition

. The appellate court reve rsed and rema nded for a third-stag e evidentiar y hearing, holding that defe ndant had satisfied the cause -and- prejudice test for succe ssive postconviction petitions. 406 I ll. App. 3d 43. ¶ 2 For the rea sons that follow, we aff irm the appellate court’s judgme nt reve rsing the trial court’s order d en y ing leave to file, but rema nd the cause t o the trial court for appointment of postconviction counse l and sec ond-stag e postconviction proc eeding s.

¶ 3 BA CKGROUND ¶ 4 In th e ea rl y m o rn i n g h o u rs o f September 9, 1982, 33-year -old K.B

. was sexually

-2-assaulted, beate n, and burned. S ev er al men, including defe ndant, wer e implicated in the

attack, which occur

red in the attic of def

en d an t ’s Chicag o residenc e. Def endant, then 28
y ear s old, was charg ed with numerous of fense s, including rape and deviate s exual assault. Prior to trial, defe ndant moved to s up p ress inculpatory statements he alleg edly made to investigators arg

uing, inter alia
, that the statements wer e made “as a result of psycholog ical, phy sical and me ntal coer cion” by Detec tive Peter Dignan and Serg eant John By rne. 1 ¶ 5 At the sup p re s s i o n h ea ring
, Dig nan, By rne, and Dioguardi testified reg ardingevents followin g d ef

endant’s arr est on the morning of September 9, 1982. Acc ording to their testimony
, defe ndant was taken to Are a 2 Vi o l en t C ri mes Hea dquarte rs, arr iving there betwee n 7 a.m. and 7:15 a.m. By rne testified that as defe ndant was being led to a secondfloor interview room, defe ndant stated, “I ’ll tell you ever y thing.” Dignan told defe ndant that he would be questioned later. Def endant was handcuf

fed to a ring on the wall in the interview room. At approx i m at ely 8 a.m., afte r Dig nan advised defe ndant of his Miranda rig hts, Dig nan, Dioguardi and By rne spoke to defe ndant for 20 to 30 minutes, during which time defe ndant g ave a statement. The office rs denied striking defe ndant, threatening him, or abusinghim in any

manner

. ¶ 6 At 10 a.m., Dig nan called the Fe lony Review Unit of the Cook County State’s Attorney ’s office and reque sted an assistant St ate’ s Attorney

. Assistant State’s Attorney Kenne th McCurry arr ived at Are a 2 at 10:30 a.m. and spoke with the three office rs. At approximately 1 2 : 5 0 p.m., McCurry
, acc ompanied by Dioguardi and Dig nan, had a conver sation wi t h defe ndant. Be fore speaking with defe ndant, McCurry advised defe ndant of his Miranda rig hts. Defe ndant denied involveme nt in the crimes, indicating that he never we nt upstairs wher e the assault of K.B

. took place

. At approximately 1 : 3 5 p

. m ., at defe ndant’s reque st, McCurry
, Dioguardi and Dig nan ag ain spoke to defe ndant, wh o s aid he wanted to tell the truth. Acc ording to McCurry
, defe ndant stated that he did g o upstairs when K.B

. was at the house. There, he saw a number of me n havingsexual int erc ourse with her . Def endant also stated that h e s aw R o d n ey Be nson burn K.B

. with an iron, and that he took the iron from Be nson and dropped it on K.B .’s thigh. McCurry did not observe any injuries to defe ndant’s fac e and did not notice any thing u n u s u a l a b out defe ndant’s walk. Def endant did not complain that he had be en struck by police. ¶ 7 Def

endant testified at the suppression hearing that, afte r his arr est, he was taken to Area 2 Hea dquarte rs and place d in a second- floor room, wher e he was handcuf fed to a ring on the wall. Serg eant By

rne and Detec tive Dignan questioned him about what had happene d at his house ear lier that day

. Def endant g ave a statement but did not implicate himself. Acc ording
to defe ndant, Dig nan fre ed him from the wall ring and told him that he (Dignan) “wa s fix ing
to do some police brutality .” Def endant testified that he was then taken to a room on a lower floor “that had bars in it, and what appea red to be cells.” Upon questioning by By rne, defe ndant repe ated what he had told By rne and Dig nan upstairs. By rne told defe ndant he was

Al tho ugh def

end ant ’s sup pre ssi on m oti on al so ide nti fi ed Det ect ive David Dioguar di, 1 def end ant ’s te st imony did not dir ect ly implic at e Dioguar di in the al le ged bea ti ngs and def end ant has foc use d hi s c la im of po li ce bru ta li ty sol el y on Byrne a nd Di gnan.

-3-lying and hit him in the fore head with a flashlig ht that was 15 to 16 inches long. Dig nan then

struck defe ndant acr oss his rig ht thigh with a piece of rubber
, approximately 12 to 13 inches long, which was taped on both ends. By rne and Dig nan continued to question defe ndant, striking him at random on his arms and thighs. Def endant testified: “Serg eant By rne told me that we wer e about to return back upstairs; if he found out I was l y i n g, I could expect the same thing .” ¶ 8 Def

endant further testified that sometime afte r returning upstairs, Di gn an an d By rne

acc used def

endant of lying, stating that B enson (who was also being questioned at Are a 2) told them that defe ndant had burned K.B. De fe n d an t testified that By rne and Dig nan took him back downstairs, wher e Dignan struck him with a piec e of rubber across his left t high and his left arm, and By

rne repe atedly struck him with a flashlig ht on his rig ht arm and once in his chest. Acc ordingto defe ndant:

“As I tried to move my arm fr om Serg eant By rne, Serg eant By

rne told me this time to stand up. I stood up. He g rabbe d my hands and turned me around and put my hands up over

my head like this and my

back was facingthem, and my hands we re up to the bars, and at this time Serg eant B y rne star ted kickingmy

leg s apar t and he told me he was g oing to let me se e how it fe els to be mistreate d.
At this time he hit me betwee n my leg s in my groin with the flashlig ht. He hit me once, then hit me ag ain, and this time I was, you know, fell, like I was try ing to fold up to keep him from hitting me ag ain.
At this time both of them g rabbe d me, unfolded me, stood me back up, and at this time D etec tive Dignan wa s hitti ngme betwe en the leg s in the g roin with a piece of rubber

. * * *
Detec tive Dig nan asked me would I
, you know, when I g o back upstairs, would I rela te this to somebody

–to an at t o rney that was investiga ting the case ; and I told him Iwould relate to the attorne y exactly what I had re lated to them ea

rlier.” Def endant testified that afte r he was taken back upstai rs, he had a 20-minute conver sation with McCurry
, at which Dioguardi and Dig nan wer e prese nt. Def endant stated that McCurry did not advise him of hi s constitutional right to an attorney or to rema in silent, and that he only s p o k e t o McCurry beca use he was afr aid of Dig nan and By rne. Def endant g ave McCurry the same statement he had g iven to police when he was first brought to Are a 2. McCurry
, Dioguardi and Dig nan returne d later, but defe ndant told McCurry th at he had nothing e lse to say

. ¶ 9 Chicag o Police L ieutenant J ohn Crane testified that Are a 2 headqua rters was forme rly the Bur nside police district and that the building contained two abandone d jail cells adjac ent to the g ara g e on the first floor. Although the cell doors had been remove d, the rest of the bars comprising the lockup rema ined

. The lockup are a, which was used for storag e, could be

acc essed by g oing d o wn t h e s t ai rs from the second floor, then proce eding first throug h a

wo o d en door, which was unlocked, and then a steel door, which was locked. L ieutenant Crane testified that the key to the metal door was kept behind the front desk on the first floor,

-4-which itself wa s behind a locke d door. 2

¶ 10 Def

endant also prese nted medical testimony at his suppressi o n h ea ri n g. Ka rem Ali Abdal-A ziz testified that he was a para medic responsible for g iving new inmates at the Cook County jail complete phy sical examinations and that he examined defe ndant on September 10, 1982. Acc ording to Abdal-A ziz ’s written repor t, defe ndant advised him o f s ev eral injuries that occur

red the day befor e. Def

endant repor

ted an injury to the left side of his head, his g roin, rig ht and left b i ce p s, left shoulder, rig ht hand, and his sternum, all from blunt trauma. D efe ndant also re ported a n injury to his thighs or kneec aps. Alt houg h Abdal-A ziz had no specific rec ollection of defe ndant’s examination, he testified that inmates are requi r e d
to remove their shirts for the e x amination and that he would have observed the injuries on the upper part of defe ndant’s body . He would not have observed the leg and groin inj uries that defe ndant re ported. ¶ 11 Dr. Stanley Har per, a phy sician with Cermak Hea lth Service s, testified that he examined defe ndant on September 15, 1982. Acc ording to the doctor’s examination notes, defe ndant
repor ted that he had been beate n acr oss his back, hands a nd leg s with a flashlig ht a nd billy club by Chicag o police one week ea rl i er

. He complained of pain i n the groin, bl ood in his urine 24 to 48 hours afte r the beating
, and burning or pain on urination. The notes from Dr. Har per’ s phy sical examination state that g enitals wer e normal, but defe ndant complained of scrotal pain on palpation. Dr. Har per also noted multipl e healing hematomas on defe ndant’s left anter ior leg

. Although a urinaly sis showed no evidenc e of blood, Dr. Har per testified that the urinaly sis did not rule out the possib ility that defe ndant experience d bleeding

. Dr. Har per’ s assessment, or clinical impression, was “history of multipl e bl u n t trauma.” The doctor order ed X-ra

y s of defe ndant’s left leg and thorac ic spine to rule out any small fra cture

or dislocation of the spine that might have resulted from the alleg ed attack. The X-ra y s wer e normal. ¶ 12 The circ uit court found that d ef en d an t ’s s t at em en t s t o police and Assistant St ate’ s Attorney McCurry wer e voluntary and denied defe ndant’s motion to suppress. The case then
proce eded to a

jury trial. ¶ 13 The State’s evidenc e showed that on September 8, 1982, K.B
., an admitted al co holic, spent the day drinking with two friends at the apar tment she share d with her boy friend, Gene Edwar ds. The apa

rtment was a

bove a liquor store, located at 75th Street and South J eff rey Street in Chicag o, wher e Gene worked

. A l i t t l e afte r midnight, when the alcohol was exhausted, K.B.’ s friends ha d left, and Gene was asleep, K.B. l eft the apar tment intending
to g o to a friend’ s house on Pax ton Street. K.B

. testified that as she walked down 75th Street,

a car with some black men inside pulled up to her; one of the men asked if she neede d a lift. K.B . declined the offe r. The ne x t thing she r emember ed wa s beingin the car

. ¶ 14 Testimony established that the driver of the vehicle was Rodney Be nson (also known as “Span”)

. Be nson, defe ndant, and Bobby J oe Wil liams had driven from defe ndant’s home,

Lie ute nan t Crane was cal le d as a wit nes s du ri ng the hea ri ng on Rodney Bens on’ s m oti on 2
to sup pre ss st at ements, whic h was con duc te d at the same ti m e as def end ant ’s hea ri ng on his m oti on to sup pre ss. Def

end antado pte d t he e nti re ty of Cra ne’ s t est imony

.

-5-located on the 7600 block of South Chappel Street, to the liquor s t o re at 7 5th and J eff rey streets to pick up beer

. The men noticed K.B

. stag g ering down 75th Street and, acc ording to Wil liams, stopped to see what was wrong

. Chicag o Police Serg eant Elbert Har ris, who was

on patrol in the are a, saw the g roup and stopped to investig ate. Ser g eant Ha rris noticed the smell of alcohol emanating from K.B

. and that her speec h was slurred. Har ris asked K.B

. if she neede d to g o to the h o s p i t al o r the police station. K.B

. told Har ris that the men wer e helping her and that they wer e g oing to take her to a friend’ s house. Afte r deter mining that the men wer e g oing to ta

ke K.B

. wher e she wanted to g o, Har ris made a note of the license plate number

and lef t. ¶ 15 Acc ording t o W i l l i am s , af t er Be n s o n drove off with K.B
., he, defe ndant, and an unidentified black male with a bicycle walked back to defe ndant’s home. Wil liams testified that shortly

afte r ar riving there
, Be nson pulled up to the rear of defe ndant’s home. B enson

car ried K.B . to the attic, which wa s acc essed by a stairc ase of f of the kitche n. There , a bed

was located under two small windows, which allowed in light from the streetlights. The attic had no other

source of lig ht. ¶ 16 K.B

. testified that she was repe atedly rape d, beate n and burned by a g roup of black men. S p ecifically
, K.B

. testified t hat one of t he men punched her in the face, causing her to fa l l onto the bed. Three men in succe ssion then had vag inal intercour se with he r. A fourth man demande d oral sex. When K.B

. ref used, the man punched her, knocking her to the floor, and then punched her ag ai n

. At some point, the man put his penis in her mouth. K.B

. next

reme mbere d seeing flames coming at her fac e and being burned on her fac e and body
, including her brea sts. K.B

. did not rec o gnize her attacke rs, and she made no in-court identification of de fenda

nt as one of the men who assa ulted her. ¶ 17 Wil liams te stified that afte r B enson took K.B . upstairs, defe ndant and the bicycle rider
went upstairs. Wil liams was also prese nt in the attic from time to time as wer e Michae l Fowle r (also known as “L ittle Mike”), L ee Holmes, and Kenne th L ewis. Wil liams and L ewis both testified that they saw Be nson, followed by Fowle r, have sexual intercour se with K.B

. Wil liams also testified that he saw defe ndant having sexual intercour se with K.B
., and saw d ef endant hitting her. Wil liams further testified that he hear d Holmes tell K.B

. to “set her fac e out,” meaning to suck his penis. L ewis testified that he also saw the bicycle rider have sexual int erc ourse with K.B ., and that he he ard K .B. sa y “no” mor e than onc e. ¶ 18 L ewis further testified that, at one point in the evening
, defe ndant came downstairs from the attic and picked up a hot iron from the stove. L ewis took the iron from defe ndant. After defe ndant went back upstairs, L ewis hear d “smac ks and slaps.” L ewis went upstairs and saw defe ndant beating K.B

. with his fist. Three times L ewis pulled defe ndant off of K.B

. L ewis said K.B

. was not moving; he thought she was dead. L ewis left defe ndant’s home for about 20 minutes to g et som e b arb ec u e. When he returne d, L ewis went to the attic and saw that K.B

. was “burne d from head to toe” and that there wer e iron marks on her brea sts and leg s. L ater , L ewis saw defe ndant come downstairs, retrie ve a hot spoon from the stove, and return upstairs. L ewis hear d K.B

. say , “Why are you burning me? ” Wil liams simil arly testified that he saw defe ndant pick up a hot iron from the kitchen stove and g o upstairs. The next morning , defe ndant told Wi lliams they “burne d that bitch.” Medica l testimony established th at K. B. s u ffe red second and third degree burns to her fac e, neck, chest, brea sts, thighs,

-6-back, a nd buttocks, in addition to ex tensive bruising , particula rly to her lowe r extremities. ¶ 19 K.B

. further

testified that duringher or deal, she passed out f rom the pain, later coming
to on the floor. She then rec alled hearing a man say , “Ge t the bitch out of here befor e we g et

a murder beef

,” or something to that eff ect. K.B

. reme mbere d a m an dre s s i n g her and

car rying her under her arms to the stairs. Her next rec ollection was being outside. K.B
., not knowing wher e she was and her eyes swollen, cra wled to the alley and made her way toward a lig ht, which she late r discover ed wa s a g as station. ¶ 20 Geor g e Wil son, who was working the midnight shift at the g as station at 76th and J eff rey streets on September 9, 1982, testified that he saw a white woman walking toward the station
at 3 a.m. or 3:30 a.m. When she finally made her way to the station, he noticed that her eyes

wer e bruised a

nd her mouth wa s swollen and bloody . Wil son called police

. ¶ 21 Investig ation led police to defe ndant’s home, wher e they ar ri v ed at ab o u t 4:30 a.m. Def endant’ s sister, Patricia Wrice, allowed police to enter

. Other persons wer e prese nt in the home, including defe ndant, Charles Wrice (def endant’ s brother)
, and Wil liams (Patricia Wrice’s boy friend)

. Once inside, police noti ced a “burning od o r” i n t he house, which was strong er in the kitchen. Police saw char red debris on the kitchen sink and on the floor, including a rolled-up paper that wa s b urned. In the attic, police saw additional char red matter, and rec overe d a metal car ving fork with a burnt tip, and a steam iron without the cord. The hole pattern on the steam iron matched many of the burn marks on K.B

. Police also

rec overe d from the attic a broken wooden hang er and cer tain article s of clothing, including panties and a

shoe, that belong ed to K.B

. ¶ 22 As a result of their investigation that morning
, police arr ested sever al persons, including defe ndant, and tra

nsported them to Are a 2 for questioning. Serg eant By rne testified at trial that as def

endant wa s place d in one of the se cond-f loor interview r ooms, defenda nt stated, “I ’ll tell you ever

y thing.” A half-hour later, afte r Detec tive Dig nan advised defe ndant of his Miranda rig hts, B y

rne, Dig nan, and Detec tive Dioguardi questioned defe ndant. Acc ording
to By rne, defe ndant related that on September 8, 1982, at ab o u t 1 1 p

. m

. , he was walking home when he saw Be nson sitti ng in a car with a woman. Wil liams was near by
, along with

a police serg eant. Def

endant hear d Be nson tell the serg eant that he was taking the woman to

a g irlfriend’ s house. After the serg eant lef t, defe ndant and Williams walked to de fenda nt’s home. Ten minutes later, Be nson arr ived and asked defe ndant if he could use a bed. Be nson and the woman then went upstairs, followed at some point by Wil liams, Fowle r, L ee Holmes, and another man. Acc ordingto B y rne, defe ndant said that during this e ntire time he stayed downstairs in the living room. At some point, Fowle r, L ee, another man, and the woman left. ¶ 23 By

rne de nied having

a second conver sation with defe ndant, denied striking defenda nt, and denie d knowingof any location at Ar ea 2 that had aba ndoned jail ce lls or bars. ¶ 24 Assistant State’s Attorney McCurry testified that afte r arriving at Are a 2 on the morning of S eptember 9, 1982, he spoke with By rne, Diogua

rdi, and Dignan, and t hen int ervie we d four witnesses. At about 12:50 p.m., McCurry met defe ndant and advised him of his Miranda rig hts. Dioguardi and Di gnan wer e prese nt. McCurry ’s testimony as to the statement defe ndant then provided was substantially the same as the statement to which By rne testified. McCurry spoke to defe ndant ag ain at about 1:35 p.m., at defe ndant’s reque st. Acc ording to

-7-McCurry
, defe ndant stated that the events previously descr ibed wer e corr ect up to the point

wher e Be nson and K.B

. arr ived at the house. Def endant told McCurry that afte r Be nson took K.B

. upstairs, he also went upstairs. Holmes and Fowle r wer e prese nt, along with a man who

arr ived on a bike. Def

endant said Be nson and the bicycle rider ha d sexual int erc ourse with K.B
., and Benson was slapping and hit ting K.B., demanding oral sex

. De fendant also told McCurry that he saw Be nson burn K.B

. with an iron over most of her body and that he took the iron fr om Be nson and droppe d it on K.B.’s thighs. ¶ 25 The parties stipulated that police wer e unable to lift any prints off of the iron, hang er or fork rec overe d from the attic of defe ndant’s home; the hang er had hu m an b l o o d
, but the blood ty pe could not be deter

mined; the panties had blood, but whether it was human could not be deter

mined; the fork a

nd the iron di d not have human blood; the t ip of t he fork was b urned, and the tip was discolored either from chemica ls or heat. Finally
, the p ar t i es stipulated t h at the vag inal smears obtained from K.B

. did not reve al the prese nce of spermatozoa. ¶ 26 Def

endant testified in his defe nse that on September 8, 1982, he arr ived home from work
at about 10:45 p.m. Wil liams was at the house and Be nson arr ived about an hour later. The three men drove to the liquor store at 75th and Chappe l streets in Be nson’s vehicle . Whil e Be nson looked for parking
, defe ndant went into the liquor store and boug ht beer an d cig are ttes. When he left the store, he saw K.B

. sitti ng in the front passeng er seat of Be nson’s

car , which was p ar k ed i n the Chicken Coop restaur ant lot. Wil liams and Serg eant Har ris

wer e also there

. Def

endant testified that K. B. had a black eye, and that Har ris asked K.B

. whether she wanted to g o to the hospital or police station. K.B

. told Har ris no; she was g oing with Be nson. Harris then left in his patrol car

. ¶ 27 Acc ording to defe ndant, Be nson drove off with K.B

. and he and Wil liams walked back
to defe ndant’s house. A man with a bicycle, whom defe ndant earlier saw speaking with K.B

. and Be nson, followed behind defe ndant and Wil liams. Shortly afte r Wil liams and defe ndant

arr ived back at defendant’s home, W i l liams answe red a knock at the back door and called
to defe ndant. Def

endant saw Be nson, K.B
., and the bicycle rider on the back porch. Wil liams asked defenda

nt if they could go ups tairs an d g et hi g h. Def endant told Wil liams he would have to clea

r it with Patricia Wrice, but when defe ndant returne d to the living room, he hear d people g oing upstairs. Def endant followed and saw Be nson and K.B

. sitti ng on the bed. The attic was dark and defe ndant could not see who else was there
, but he hear d Fowle r’s voice. After cautioning ever

yo n e n o t t o mess up the are a of the attic wher e he was doing some construction, def

endant we nt downstairs to the living room. ¶ 28 After listening to Patricia argue with Wil liams about the late-night company , defe ndant left t o call his fianc é, J ennife r. Defenda nt went to a nearby phone booth bec ause his home did not have a telephone. Def endant spoke to J ennife r for 30 to 45 minutes. When defe ndant
returne d home, he fell aslee p on the living room couch. Sometime later, Ki m , a friend of Patricia Wrice, awa

kened defe ndant and told him that the people in the attic wer e fig hting. Def endant went up s t ai rs and saw Be nson, Fowle r, Holm es, and the bi cycle rider. Another
person was prese nt but defe ndant could not se e who it wa s. When de fenda nt told ever

yone to leave
, Be nson g rabbe d him. Def endant broke fre e, found a hammer, and ever yone ran downstairs. When de fenda nt r eac hed the kitchen, the only people he saw wer e Be nson and

-8-K.B . Be nson and def endant ha d a brie f exchang e and the n Be nson left with K.B

. ¶ 29 De fe n dant t estified that afte r hi s arr est at hi s home l ater that morning
, he was taken t o

a second- floor interview room at Are a 2, wher e he was questioned by Detec tives Dioguardi and Dig nan. Def

endant testif

i ed that police did not provide any Miranda war nings. Acc ording to defe ndant, the first time police questioned him, he “told them what happene d from the time that [he] went to the store to the time [he] came back.” Def endant did not tell police about Kim waking him up. Consist ent with his testimony at the suppression hearing, defe ndant testified that Detec tive Dignan told him he was g oing to show him “some police brutality .” Dig nan and By rne took defe ndant down some stairs into a room with bars. On his
way downstairs, def

endant sa w Will iams, who was c rying. ¶ 30 Once downstairs, Dig nan ag ain asked defe ndant what happene d. Def endant told Digna

n that he told them what he knew upstairs. Dig nan and By rne then repe atedly struck defe ndant with a flashlig ht and a long piece of rubber

. Def endant testified that Dig nan kept asking him who burned and rape d K.B

. Def endant said things wer e happening quickly
, he was confuse d, and could not re m em b er ever y thing that occur

red. After Dig nan and By rne returne d defe ndant upstairs, def

endant sa w B enson, who wa s cry

ing a nd walkingwith a limp. ¶ 31 Acc ording to defe n d an t , s o m et i m e l at er , Di gn an an d By rne took defe ndant bac k downstairs. They told defe ndant that Be nson had said defe ndant burned K.B

. When defe ndant denied any involvement, By rne and Dig nan said he was lying and ag ain beat him with the flashlig ht and rubbe r piec e. ¶ 32 About 45 minutes afte r police brought defe ndant back t o t h e s ec o n d floor of Are a 2, defe ndant spoke with Assistant State’s Attorney McCurry

. Dig nan and Di oguardi wer e prese nt. Def

endant testified that he told McCurry the same thing he told police earlier about what happene d from the time he went to the store to the time he returne d home. Def endant could not reme mber what else he might have told McCurry at this time. Def endant testified that McCurry came back a second time a nd asked de fenda

nt if he had a

ny thing e lse to sa

y

. Def endant told him no. ¶ 33 Patricia Wrice, defe ndant’s sister, tes t i fi ed s he first beca me awa re that a woman wa s upstairs when she was in the ki tchen, sometim e after midn i gh t , an d heard the woman say , “G et off of me, you can’ t fuck. Send the next one on.” Patricia then saw Be nson running down the stairs zippi ng his pants. During this time, defe ndant was in the living room. Patricia told Be nson and Fowle r, who was also i n t h e kitchen, to leave
, which they did. Shortly there aft er , d ef

endant left to call J ennife r. Patricia returne d to her bedroom and hear d

someone coming into the house. Patricia saw Be nson and another man car rying a white

woman o u t t he door. Patricia denied telling investigators that she hear d someone hitting another person upstairs, or that she hear d someone on the second floor say , “You are g oing to suck my

dick,” or words to that ef

fec t. ¶ 34 Patricia also testified that while she was at Are a 2 on the morning of September 9, 1982,

s h e heard poli ce beating her brother. S he said she could hear her brother and an o t h er m an hollering from the baseme nt at differ ent times. Patricia testified that police tol d her they would not hurt defe ndant too badly

. ¶ 35 The para

medic who conducte d defe ndant’s intake phy sical at the Cook Cou n t y j ail on

-9-September 10, 1982
, an d t h e phy sician who examined defe ndant on September 15, 1982,

testified consistently with their testimony at the suppression h e a rin g a s to d e f

e n d a nt’ s injuries and complaints on those date s. ¶ 36 The parties stipul at ed t h at L i eu t en an t J ohn Crane, if called to testify
, would testify
reg ardingthe old lockup ar ea on the first floor of Are a 2. The stipulation was substantially simil ar to Cra

ne’s testimony

at the suppre ssion hearing

. ¶ 37 The jury
, which was instructed on the principle of acc ountability
, found defe ndant guilty of ar m ed v iolence, two counts of ag g ravated battery
, deviate sexual assault, unlawful restrai nt, and rape

. The ag g ravated battery convictions merg ed with the arme d violence conviction, and the trial court sentenced defe ndant t o an ex tended 60-y ear term for rape , a

consecu t i v e 4 0 -year term for deviate sexual assault, a concur rent 70-year term for arme d violence, a

nd a conc urre nt 5-year

term for unlawful re straint. Def

endant a ppeale d. ¶ 38 The a

ppellate court reje cted defe ndant’s suff iciency-of- the-e vidence argument, relying

on the eyewitness testimony of Wil liams and L ewis. People v. W rice
, 140 I ll. App. 3d 494, 498-99 (1986). The appellate court did not consider defe ndant’ s inculpatory statement to police, omitti ng any ref

ere nce to his statement in its rec itation of the trial evidenc e and in its analy sis. Id. The appellate court al s o v ac ated defe ndant’s convictions and sentenc es for unlawful restraint and arme d violence based on the one-act, one-cr ime ru l e. Id

. at 501-02. The r ap e an d deviate sex ual assault convictions rema ined i ntact, along with the combined 100-year sentenc e. ¶ 39 In 1991, defe ndant filed a pro se postconviction petition alleg ing, in rele vant part, that his rig hts under the fifth and eighth amendments to the fede ral constitution wer e violated in that Serg eant By

rne and Detec tive Dig nan beat defe ndant whil e he was in custody at Are a 2. The trial court summarily dismiss ed defe ndant’s petition; the appellate court aff irmed. People v. W

rice
, No. 1-91-2332 (1994) (unpublished order under Supreme Court Rule 23). The appellate court revie wed the testimony from the suppression hearing (although omitti ng any mention of L ieutenant Crane’ s testimony and defe ndant’s testimony) and conclude d that the trial court’s deter

mination as to the voluntariness of defe ndant’s s t at ements was not manifestly

err oneous. Id. ¶ 40 In 2000, defe ndant filed a succe ssive pro se postconviction petition alleg ing violations of his due proce ss rig hts under both the fede ral and state constitutions, all related to his claim that Serg eant By

rne and Detec tive Dig nan beat him while in custody at Are a 2. In support, defe ndant cited the repor t from the Chicag o police depar tment’s Offic e of Professional Standards (OPS), establishing that abuse of prisoners and coerced confe ssions at Are a 2 wer e widespre ad and sy stematic. Def endant arg

ued that the ne w evidenc e of a buse and beating s prac ticed at Are a 2 by Serg eant By rn e an d Detective Dig nan would have incre ased the likelihood that his coerce d statements would have been suppressed a nd the outcome of

his trial would have been differ ent. The circ uit court appointed counsel for defe ndant. Counsel did not file an amende d petition, but did file a partial response to the Sta t e’ s m o t i o n to dismiss

. In her response , defe nse counsel made plain that the OPS investigations, chronic led in the r ep o rt s o f OPS Investig ators Goldst on and S ander s, identified By rne and Dig nan as “players” in the sy stematic abuse at Are a 2. The circ uit c ourt g rante d the State’s motion to

-10-dismiss
, finding the petit ion was untimely and did not satisfy the criteria for consideration of a succe ssive petition. The circ uit court d en i ed defe ndant’s motion to rec onsider. The appellate court a ffirme d. People v

. W rice
, No. 1-01-1697 ( 2003) (unpublished orde r under Supreme Court Rule 23). ¶ 41 In October 2007, defe ndant fi l ed a p et i t i o n fo r leave to file a succe ssive petition for postconviction relief

, which is the subject of this appea l. In his petition for leave to file, defe ndant m aint ained that newly discovere d evidenc e subst antiated his prior claim that he

was sever ely beate n and for ced to c onfess to a c rime he did not commit, in violation of his fourth, fifth, six th a

nd fourtee nth a

mendment rig hts. In support, defe ndant cited the Report of the Special State’s Attorney
, Edwar d J

. Eg an, who was appointed in 2002 by the presiding judge of the criminal division of the circ uit court of Cook County to investigate alleg ations of torture , perjury , obstruction of justice, conspira cy to obstruct justice, and other offe nses by police office rs under the command of J on Bur g e at Are a 2 and Are a 3 police headqua rters beg inning in 1973. Def

endant attache d portions of the repor t to his petition. In his petition, 3 defe ndant not ed that Eg an’s report concluded that three case s exis t ed wh i ch would justify indictments for mistreatment of prisoners by Chicag o police office rs. Those c a s e s w e r e b ased

on the complaints of Andre w Wil son, Alfonzo Pinex
, and Phill i p Ad k i n s

. The repor t 4 conclude d, howeve r, that many other case s led investigators to believe or suspect that the cla i m an ts wer e abused, but proof beyond a rea sonable doubt was absent. Def endant also noted that the repor

t conclude d that J on Bur g e was guilty of prisoner abuse and t h at “[ i] t

nece ssarily follow s t h at a n u mber of those serving under his command rec og nized that, if their commander could abuse persons with impuni ty, s o could they .” Def endant further noted that the repor

t conclude d that the “inter- office proce dures followed by the State’s Attorney ’s Offic e and the Chicag o Police Depa rtment duringat least the te nure of J on Burg e at Are as 2 and 3 we re ina dequate in some respe cts.” ¶ 42 Def

endant arg

ued that he sat i s fi ed the “ca use” portion of the cause -and- prejudice test beca use Eg an’s repor

t was not rele ased to the g ener al public until J uly 19, 2006, and that he did not rec eive a copy of the repor t until Fe bruar

y or Marc h 2007. Def

endant also argued that he established prej u d i ce , explaining that without his confe ssion and Wil liams’ testimony (which defe ndant also claimed was coer ced)
, the rema ining evidenc e was insufficient to convict. ¶ 43 T h e trial court denied defe ndant leave to file his second succe ssi v e p o s t co n v i ct i o n petition. The appellate court reve rsed and rema nded for a third-stag e evidentiar y h e a rin g

. 4 0 6 I ll. App. 3d at 53. The appellate court held that defe ndant could not h av e ar gu ed t hat the

T he ci rc uit cou rt re cor d was sup ple m ent ed wit h the complet e 292-pag e re por t on compact 3 dis c. T he dis c al so c o n t a i n s i ndi vidual re por ts in sever al cas es inves ti gated by t he Spec ia l Sta te ’s Att orn ey, inc lud ing def

end ant ’s ca se.

T his is the same Andr ew Wi ls on who was the def end ant in Peop le v. W

il son , 116 I ll

. 2d 29 4 (19 87) , wher e thi s cour t, as dis cus sed inf ra in sec ti on I I I of thi s opin ion , order ed a new tr ia l base d

on the Sta te ’s fa il u r e t o pro ve t hat the inj uri es Wi ls on sus ta ine d whil e in pol ic e cus tod y wer e not inf li ct ed a s am ean s of

obt ai nin g his c onf

ess ion

.
-11-Special State’s Attorney ’s repor t corr o b orate d his claims of police torture in his postconviction petitio n s filed in 1991 and 2000 beca use the repor

t was not rele ased until 2006. Def endant thus satisfied the “ cause ” prongof the c ause- and-pr ejudice te st. Id. at 52. As to the “pre

judice” prong of the test, the appellate court initially observe d that “ ‘[t] he use

o f a defe ndant’s coerced confe ssion as substantive evidenc e of his guilt is neve r harmle s s

err or.’ (Emphasis added.) People v. W ilson
, 116 I ll. 2d 29, 41 (1987).” Id. at 53. The appellate court deter

mined that, simil ar to the defe ndant in People v. Patterson
, 192 I ll. 2d 93 (2000), de fenda

nt has: “(1) consistently claimed, during his moti o n t o s up press, at trial, and on postconviction revie w, that he was tortured; (2) his claims of being beate n are strikingly simil ar t o t h o s e of other prisoners at Are as 2 and 3; (3) the office rs involved, Serg eant By

rne and Detec tive Dignan, are identified in other alleg ations of torture; and (4) defe ndant’s alleg ations are consistent not only with OPS finding s (under the preponde ranc e of the evidenc e standard of proof) of sy stemic and methodical torture at Are a 2 under J on Bur g e, but al s o wi t h the [S pecia l State’s Attorney ’s] Report’s findings of torture under the stricter standard of proof beyond

a re as onable doubt. As such, defe ndant has satisfied the ‘pre judice’ prong of th e

cause -and- prejudice test.” Id. ¶ 44 We allowed the State’s petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Feb. 26, 2010); I ll. S. C t. R. 612 (eff. Sept. 1, 2006) . We also allowed The Chicag o Innocenc e P rojec t and “Persons Concerne d about the Integrity of the I llinois Criminal Justice Sy stem” to file briefs amicus curiae in support of defendant. I ll. S. Ct. R. 345 (ef f. S ept. 20, 2010); I ll. S. Ct. R. 612 (ef f. Sept. 1, 2006).

¶ 45 ANALYSI S ¶ 46 I ¶ 47 The Post-Convi ction Heari n g Ac t (A ct ) provides a method by which defe ndants may

asser t that, in the proce eding s which resulted i n t h eir convictions, there was a substantial denial of their federa l and/or state constitutional rights. 725 I L CS 5/122-1 (West 2010). A
proce eding under the Act is a collater al attack on the j u d gm ent of conviction. People v. Mahaffey
, 194 I ll. 2d 154, 170 (2000). Where, as here
, a d ef en d an t seeks to institute a

succe ssive postconviction proce eding
, the defe ndant mu s t fi rs t obtain leave of court. 725 I L CS 5/1 2 2-1(f

) (West 2010); People v. Tidw ell
, 236 I ll. 2d 150, 157 (2010); People v. LaPointe , 227 I ll. 2d 39, 44 (2007). ¶ 48 L eave of court may be g rante d only if the defe ndant demonstrates “ca use” for his or her failure to bring the claim in his or her i n i tial postconviction proce eding and “pre judice” resulting there from. S ee 7 2 5 I L CS 5/122-1(f) (West 2010) (codify ing the cause -andprejudice test articulated in People v. Pitsonbarger
, 205 I ll. 2d 444, 458-60 (2002)) ; Tidw ell
, 236 I ll. 2d at 161 (whe ther leave is g rante d is a deter mination depende nt upon a defe ndant’s satisfac tion of the cause -and- prejudice tes t ). A defe ndant shows cause “by identifying an objective fac tor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proce eding s.” 725 I L CS 5/122-1(f) (West 2010). A defe ndant shows

-12-prejudice “by demonstrating that the claim not raised during his or her initial post-conviction

proce eding s so infec ted the trial that th e re s u l t i n g conviction or sentenc e violated due
proce ss.” Id. ¶ 49 The State conce des that defe ndant has s at isfied the cause prong , challeng ing only the appellate court’s det ermination that defe ndant also satisfied the prejudice prong

. On this i s s ue, the State argues that the per se rule set forth in W ilson
, that “use of a defe ndant’s

coer ced confe ssion as substantive evidenc e of his guilt is never harmless err or” ( W ilson
, 116 I ll. 2d at 41), is no longe r g ood law in light of Arizona v. Fulminante
, 499 U.S. 279 (1991), and, thus, the appellate court err ed in rely ing on W ilson

. The State p o s i t s that under Fulminante
, admission of a coerced confe ssion is subject to harmless-e rror revie w, and that under an y d e f in itio n o f h a

r ml e s s e r r o r , a d mission of defe ndant’s alleg edly coer ced confe ssion

was harmless beyond a rea sonable doubt. Thus, the State urg es this court to reve rse the appellate court judgme nt and aff irm the trial court’s order deny ing defe ndant leave to file his second suc cessive postc onviction petition. ¶ 50 Be cause the State’s arg uments raise purely leg al issues, our revie w p ro ce ed s de novo

. People v. Johnson
, 206 I ll. 2d 348, 359 (2002); see also People v. Johnson
, 191 I ll. 2d 257, 268 (2000) (suffic iency of the alleg ations contained in a postconviction petition is revie wed de novo ).

¶ 51 I I ¶ 52 Be fore considering the State’s principal argument, we addre ss what the State maintains is an inconsistency in defe ndant’s claim. The State notes that although defe ndant argues that his confe ssion should have been supp re s s ed as the product of police violence, he has also consistently

maintained that he did not conf ess. ¶ 53 The law is se ttled tha t a defe ndant’s asser

tion that he did not c onfess does not prec lude the alternative argument that any confe ssion should be suppressed. People v. Norfleet
, 29 I ll. 2d 287, 289-91 (1963); acc ord People v. Manning
, 182 I ll. 2d 193, 205 (1998 ); see also Ashcraft v. Tennessee
, 322 U.S. 143, 152 n.7 (1944) (“The use in evidenc e of a defe ndant’s

coer ced confe ssion c annot be justified on the ground that the de fenda nt has denied he ever g ave the confe ssion.”). ¶ 54 I n P eo

p l e v. Hobley
, 182 I ll. 2d 404 (1998), cited by the S t at e, we re j ec t ed t h e defe ndant’s postconviction claim that new evidenc e of police brutality at Are a 2 would have

cause d the jury to conclude that the defe ndant’s confe ssions, which he denied making
, wer e

coer ced. Id. at 450. We noted that the defe ndant’s argument was contra ry to the position he took at tr ial, wher e his “ primary challeng e to the confe ssions wa s that they wer e fabr icated by police.” Id. We concluded that evidence that other suspec ts were alleg edly coer ced into confe ssing “would not h av e d irec tly aided that position.” Id. Our conclusions in Hobley
, based on a revie w of the rec ord and arguments in that case , should not be const rued as an abrog ation of Norfleet

. Evidence of coercion is not rende red irreleva nt simply beca

use the defe ndant has denied confe ssing. Thus, defe ndant here is entitled to press his claim that his confe ssion was coe rce d. ¶ 55 We now turn to W ilson

.

-13-¶ 56 I I I

¶ 57 W

ilson was a

direc t appea l in a capital case and the first Are a 2 police br utality case to

rea ch this court. The defe ndant argued on appea l that h i s s t at em en t to police, in which he admitted to shooting two pol ice officer s, should have be en suppre ssed as involuntary . The defe ndant testified that “he was punched, kicked, smothered with a plastic bag
, elec trically shocked, and forc ed ag ainst a hot radiator” until he confe ssed. W ilson
, 116 I ll. 2d at 35. The defe ndant, who was treated in a hospi tal emer g ency room the s ame d ay t hat he confe ssed, provided medical testimony and photogr aphic evidenc e substantiating his injuries. We held that the State fa i l ed to establish, by clea r and convincing evidenc e, that the injuries the defe ndant sustained while in police custody wer e not inf licted as a means of producing the confe ssion, and the def

endant’ s statement shoul d have been suppre ssed as involuntary

. Id.
at 41. We reve rsed and rema nded for a new trial beca

use “[t] he use of a defe ndant’s coer ced confe ssion as substantive evidenc e of his guilt is never harmless err or.” Id. In support of this
per se rule, we cited Payne v. Arkansas
, 356 U.S. 560 (1958), Chapman v. Calif ornia
, 386 U.S. 18 (1967), and Rose v. Clark, 478 U.S. 570 (1986). ¶ 58 In Payne
, a capital case , the Supreme Court reve rsed the defe ndant’s murder c onviction and rema nded for a new trial. Payne
, 356 U.S. at 569. The Court held that the confe ssion of the defendant, a

“mentally

dull” 19-year -old who wa s arr ested without a warra nt, denied a hearing befor e a mag istrate, not adv i s ed o f h i s rig ht to counsel and to rema in silent, held incommunicado for three day s, denied food for long periods, and threatened by the chief of police with mob violence ag ainst him, was not voluntary

. Id

. at 567. The Court reje cted the State’s argument that b ec ause there was adequate evidenc e of guilt, apar t from the confe ssion, the jury ’s ver dict should be sustained. Id. at 567-68. The Court expl ained: “[W ]here, as here
, a coer ced confe ssion constitutes a part of the evidenc e befor e the jury and a g ener al verdic t is returne d, no one can say what cre dit and weight the jury
g ave to the confe ssion. And in these circ umstances this Court has uniformly held that

even tho u gh there may have been sufficie nt evidenc e, apar t from the coer ced confe ssion, to support a judgmen t o f conviction, the admission in evidenc e, over objection, of the coer ced confe ssion vitiates the judgme nt beca use it violates the Due Process Clause of

the Four teenth Amendme nt.” Id. at 568. ¶ 59 In Chapman
, the Court declined to ad o p t a rule that all err ors of fede ral c onstitut ional dimension require automatic reve rsal of a criminal conviction. Chapman
, 386 U.S. at 21-22. The Court conc luded that some constitutional err ors, in the settingof a pa rticular c ase, a

re

so “unimportant and insignifica nt” that they may , consistent with the fede ral constitution, be deeme d harmless beyond a rea sonable doubt. Id. at 22-24. The Court rec og nized, howeve r, that “prior case s have indicated that there are some constitutional rights so basic to a fair trial that their infrac tion can never be treated as harmless err or.” Id. at 23. The Court cited Payne
, along with Gideon v. W

a i n w r i ght
, 372 U.S. 335 (1963) (right to counsel), and Tumey v. Ohio
, 273 U.S. 510 (1927) (right to an impartial judge ). Id. at 23 n.8. The Court further held that the error at issue–the prosecutor’s im p ro p er comment on the defendants’ silence–wa s not harmless. Id. at 24. ¶ 60 Finally
, in the Ros e ca s e, t h e Court revie wed the harmless-e rror doctrine in relation to

-14-an err oneous jury instruction, holding that the instructional err or at issue “does not compar e

with the kinds of err ors that automatically require reve rsal of an otherwise valid conviction.” Rose , 478 U.S. at 579. The Court explained:

“De spite the strong interests that support the harmless-e rror doctrine, the Court in Chapman rec og nized that some constitutional erro rs require reve rsal without
reg ard to the evidenc e in the particula r case

. [C itations.] This limi tation r ecognizes that some err ors nec essar ily rende r a tria l fundamenta lly unfair.” Id. at 577. The Court obse rved that eac h of the examples Chapman cited of err ors that could never be harmless either “abor

ted the basic trial proce ss” (by admission of a coer ced confe ssion), or “denie d it altog ether ” (by denial of counsel, or by trial befor e a biased adjudicator). Id. at 578 n.6. ¶ 61 As the fore g oing discussion demonstrates, the rule s et fo rt h i n W i l s o n , that “use of a defe ndant’s coer ced confe ssion as substantive evidenc e of his guilt is never harmless err or” ( W ilson
, 116 I ll. 2d at 41), is simply an iteration of the Supreme Court’s pronounce ments in Payne
, Chapman , and Rose . See also Lynumn v. I llinois , 372 U.S. 528, 537 ( 1963) (whe re the Court, relying on Payne
, held that the trial court’s view that admission of the defe ndant’s

coer ced confe ssion could be harmless err or is an “impermissible doct ri n e” ). W ilson
, howeve r, predates Arizona v. Fulminante
, 499 U.S. 279 (1991), in which the Supreme Court considere d whether the admission at trial of a coer ced confe ssion is subject to harmless-e rror analy sis. Fulminante , 499 U.S. at 285. ¶ 62 Fulminante involved the 1982 murder of the defe ndant’s 11-year -old stepdaughter. The defe ndant, while in fede ral prison on unrelated charg es, befriended a fellow inmate, Anthony Sarivola, who was a paid informant for the Fe dera l Bur eau of Investig atio n (F BI ),
masquera ding as an org anized-crime figure. Sarivola knew the defe ndant was starting to g et

some “tough t re at m ent” from fellow inmates who hear d rumors that the defe ndant was suspected of killing a child. Id. at 283. Sarivola offe red to provide protec tion if the defe ndant told him the truth reg arding the circ ums t an ces of his stepdaughter’s death. The defe ndant told Sarivola how he had kil led t he girl, and the defendant was subsequently charg ed with her murder. The defe ndant’s motion to suppress the statement he had made to Sarivola was denied, and the def

endant wa s convicted of

the g irl’s murder . The Ar izona high cour t held that the confe ssion was coer ced, and beca use harmless-e rror analy sis was prec luded by Supreme Court prec ed en t, the Arizona court reve rsed the defe ndant’s conviction and

rema nded for a new trial without the u s e o f t h e confe ssion. State v. Fulminante
, 778 P.2d 602, 627 (Ariz. 1988). The Supre me C ourt aff irmed the re versa l, but for diffe rent re asons. Fulminante
, 499 U.S. at 285. In a fra cture d opinion, the Supreme Court decide d three issues,

eac h issue commandinga diffe rent five -justice majority

. ¶ 63 The Court first considere d whether the defe ndant’s confe ssion had been coer ced. J ustice 5 Whit e, joined by J ustices Marsha ll, Bla ckmun, Stevens, and Scalia, agree d with the Arizona

T h e S up r e m e Cour t use s the te rms “co er ced con fe ssi on” and “i nvolunt ary con fe ssi on” 5 int er cha ngeabl y as a con venien t sho rthan d. T he Cour t use d the form er te rm in Fulmina nte bec aus e tha t wa s t he t erm

use d by the Ari zona Sup re m e Cou rt

. Fulmina nte , 499 U.S. a t 2 87 n .3.

-15-Supreme Court that the defe ndant’s confe ssion was, indeed, coerced. Id. at 287. Chief J ustice

Rehnquist, jo ined by J ustices O’Connor, Kenne dy
, and Souter, dissented. Id. at 303-06 (Rehnquist, C.J ., dissenting, joined by O’Connor, Ke nnedy

and Souter, JJ .). ¶ 64 The Court ne x t c onsidered whether harmless-e rror analy sis applies to the admission of

coer ced confe ssions. The four dissenting justices wh o believed the confe ssion was not

coer ced, joined by J ustice Scalia, wh o believed it was coerced, deter mined that coer ced confe ssions are subject to harmless-e rror analy sis. Id. at 310. Chief Justice Rehnquist wrote for this majority

. 6 ¶ 65 Fi n al l y , t h e C o u rt co n s i d er ed whether the admission of the defe ndant’s coer ce d confe ssion was harmless. J ustice Souter did not vote on this issue, which the Court resolved by a 5-3 vote in favor of the defe ndant. J ustice Whit e, who wrote for the majority
, was joined by J ustices Marsha ll, Bla ckmun, and Stevens. These four justices, who voted as a block on all three issues, agree d that althoug h harmless-e rror analy sis should not apply to coer ced confe ssions, the admission of the defe ndant’s confe ssion wa s not ha rmless. Id. at 296. The fifth vote in favor of this result was provided by J ustice Kenne dy

. Although J ustice Kenne dy believed that admission of the defe ndant’s confe ssion was not err or, its admission was not harmless. Id. at 313-14 (Ke nnedy
, J
., concur ring i n t h e judgme nt). Thus, althoug h five 7 justices (Chief J ustice Rehnquist and J ustices Scalia, O’Connor, Kenne dy
, and Souter) believed the defe ndant’s conviction should stand, either beca use the confe ssion was not

coer ced or beca

use its a dmission was harmless err or, the Court aff irmed the reve rsal of the defe ndant’s convic tion. ¶ 66 In deciding the rea ch of Fulminante with respe ct to the prese nt case , we nece ssarily focus

our attention on the second issue the Court considere d: the applicability o f harmless-e rror analy sis to coer ced confe ssions. Chief J ustice Rehnquist, writing for the majority
, distinguished betwee n a classic “trial err or” and a “structur al defe ct[ ] in the constitution of the trial mecha

nism.” Id. at 307-09 (Reh n qu i s t, C.J .). A “trial err or” is an err or which “occ urre d during the prese ntation of the case to the jury
, an d wh i ch may there fore be

Chie f J ust ic e Rehn qui st acknowl edged tha t “t he opi nio n on whet her or not har m le ss error 6
app li ed to coe rc ed con fe ssi ons *** is te chn ic al ly dic ta .” Chie f J ust ic e Wi ll ia m Rehn qui st , Rem arks
at the 61s t J udi ci al Conf

er enc e, Unit ed Stat es J udges of the Four th Cir cui t, Openi ng Ses si on, J une 2 8
, 1991
, vol. I
, at 19. Simila rl y, a le gal comm ent at or obs erved tha t “ha rmless

- error ana lys i s w a s

ess ent ia l to the vote of onl y one of the J ust ic es in the m aj ori ty [J ust ic e Sca li a] and the re for e can not be c ons ide re d a hol din g.” Lewi s J . Li m an, Fulmina nte , 205 N.Y.L.J . 30 (Apr il 3, 1 991)

.

J ust ic e K enn edy’s vote le d one comm ent at or to con cl ude tha t “i t unde rmines the le giti m acy 7 of the Cour t” bec aus e the “ac tua l r e s u lt of the cas e [t o af fi rm the re versa l of Ful m ina nte ’s

c o n vi c t i o n ] did not have the sup por t of the m aj ori ty.” K enn et h R. K enkel, Note
, Ari zon a v. Fulmina nte : Where ’s th e Harm in Harml ess Err or? , 81 Ky. L.J . 257, 279 (19 93) . Butse e Edwar d A. Har tne tt , A Ma tt er of

Jud gment
, Not a Ma tt er of Opin ion
, 74 N.Y.U. L. Rev. 123, 144 (19 99) (“ I f, however
, J ust ic es Rehn qui st , O’Con nor , K enn edy, and Sout er had not re ach ed out to opi ne abo ut is sue s unne ces sar y to the ir vote on the j udgm ent , J ust ic e K enn edy woul d never have bee n te m pte d
to cha nge his vote.” ).

-16-quantitativ el y as s es s ed in the context of other evidenc e prese nted in order to deter mine whether its admission was harmless beyond a rea sonable doubt.” Id. at 307-08. In contra st,

a “structur al defe ct” defie s harmless-e rror analy sis beca use it aff ects the entire conduct of the trial from beg inn i n g t o end. Id. at 309-10. Structural defe cts identified by the Court since Chapman was de cided include the unl awf ul exclusion of m ember s of the de fenda nt’s rac e from a g rand jury ( Vasquez v. Hillery
, 474 U.S. 254, 263-64 (1986)) ; deprivation of the rig ht
to self-r epre sentation (

McKaskle v. W

iggins
, 465 U.S. 168, 177 n.8 (1984)) ; and deprivation of the rig ht to a public trial ( W aller v. Georgia
, 467 U.S. 39, 49 n.9 (1984))

. Fulminante
, 499 U.S. at 310. ¶ 67 C h i ef J ustice Rehnquist deter mined that the admission of an involuntary statement or confe ssion is “similar in both deg ree and kind to the err oneous admission of other ty pes of evide n ce ” an d is thus a trial err or subject to harmless-e rror revie w. Id. The Chief J ustice found the evidentiar

y impact of a coer ced confe ssion to be “indistinguishable ” fr o m the evidentiar y impact of a confe ssion obtained in violation o f t h e s i x th amendment, or of evidenc e seized in violation of t he fourth amendment, or of a prosec utor’s improper
comment on a defe ndant’s silence in violation of the fifth amendment. Id. Observing that the Court has applied harmless- er ro r analy sis to the violation of other simil arly important constitutional rig hts “involving the same level of police miscon du ct ” as that at issue in Fulminante ( id. at 311), the Chief J ustice conc luded: “The inconsistent treatment of statements elicited in violation of the Six th and Four teenth Amendments, respe ctively
, ca n b e supported neither by evidentiar y or deter renc e conce rns nor by a belief that there is something more ‘fundamental’ about involuntary confe ssions. This is espec ially true in a case such as this one wher e there

are no alleg ations of phy sical violence on behalf of the police .” Id. ¶ 68 Although acknow ledg ing that an invol u n t ar y co n fe s s ion may have “a more dra matic eff ect” on a trial than other err ors and may even be “deva stating” to a particula r defe ndant, the Chief J ustice did not consider this to be a rea son to esche w harmless-e rror revie w. Id. at 312. ¶ 69 J ustice Whit e, writing in dissent, also rec og nized the damning eff ect of the admission of a def endant’ s confe ssion at trial: “A de fenda

nt’s confe ssion is ‘proba

bly the m ost probative a

nd damag ing e vidence that can be admitted ag ains t him,’ [citation] so damag ing that a jury should not be expected to ignor e it even i f t o l d t o d o so, [citation] and beca use in any event it is im p o s s i b l e to know what cre dit and weight the jury g ave to the confe ssion.” Id. at 292 (White, J ., dissenting)

. ¶ 70 Whil e Chief J ustice R ehnquist focuse d on the t ruth-see king f unction of a tria l, i.e. , the fac tual deter

mination of a defe ndant’s guilt or innocenc e ( id. at 308, 310 (Rehnquist, C.J .)), J ustice Whit e expressed the view that the rig ht of a defe ndant not to have his coer ced confe ssion used aga inst him prot ects important values unrelated to the s earch for the t ruth ( id. at 295 (White, J ., dissenting) ). Jus tice White wrote: “[S] ome coerced confe ssions may be untrustworthy

. [C itation.] Consequently
, admission of coer ced confe ssions may distort the truth-see king function of the trial

-17-upon which the majority focuse s. More importantly
, howeve r, the use of coer ced confe ssions, ‘ wh e the r true or false,’ is forbidden ‘bec ause the methods used to extract them offe nd an underlying principle in the enfor ceme nt of our criminal law: that ours is an accusatorial and not an inquis itorial sy stem–a sy stem in which the State m ust establish guilt by evidenc e independe ntly and fre ely secur ed and may not by coer cion
prove its c harg e ag ainst an acc used of his own mouth,’ [citations]

. This r efle cts the ‘strong ly felt attitude of our society that important human values are sacrificed wher e

an ag ency of the g overnme n t , in the course of securing a conviction, wring s a confe ssion out of an acc used ag ainst his will,’ [citation] as well as ‘the deep- rooted fee ling that the police must obey the law while enfor cing the law; that in the end life and liberty can be as much endang ere d from illega l methods used to convict those
t h o u g ht to be criminal as from the actua l criminals themselves,’ [citation]

. T hu s , permitting a coer ced confe ssion to be part of the evidenc e on which a jury is fre e to base its verdic t of guilty is inconsistent with the thesis that ours is not an inquisit orial
sy stem of cr iminal just ice.” Id. at 293-94.
J ustice White concluded that use of a c oerc ed confession aborts the ba sic trial proc ess and rende rs a trial fundame ntally unfair. Id. at 295. Of the numerous Supreme C o u rt o p i nions J ustice Whit e cited in support of his position ( id. at 288-89), none wer e expressly overr uled by the Rehnquist majority

. ¶ 71 In light of Fulminante
, t h e ru l e set forth in W ilson
, that “use of a defe ndant’s coe rce d confe ssion as substantive evidenc e of his guilt is never harmless err or” ( W ilson
, 116 I ll. 2d
at 41), cannot stand as a matter of fede ral constitutional law. That sai d
, we conclude that 8 Fulminante does not mandate that we abandon the rule in its entirety

. Rather, we may rec ast the rule as follows: use of a defe ndant’s physically coer ce d co n fession as substantive evidenc e of his guilt is never harmless e rror

. 9 ¶ 72 Our conclusion that the W ilson rule still h as s o m e v i tality flows from the fac t that, in Fulminante, the defe ndant’s confe ssion to his cellmate, an FBI informant, was not the product of phy sical coer cion. Rather, the fac ts demonstrated that the motivating fac tor in the defe ndant’s co nfession was the fea r of violence, absent protec tion from the defe ndant’s cellmate. Fulminante
, 499 U.S. at 288. The Court did not need to decide whether admission of a confe ssion that is the result of phy sical abuse, violence, or torture is subject to harmlesserr or revie w. Indeed, Chief J ustice Rehnquist d is ti n g u is h e d F ulminante from case s involving phy sical coer cion, stating that application of harmless err or is “espe cially true in a case such

as this one where there are no allegations of physical violence on behalf of the police .” (Emphasis added.) Id. at 311. Thus, the Chief J ustice confine d his analy sis to harmless-e rror

Wh et her the W

il son rul e cou ld st and as a m at te r of st at e con st ituti ona l law is not bef ore us 8 bec aus e d e f

e n d a nt her e has onl y cl ai m ed viola ti ons of his ri ghts ar is ing unde r the fe der al

con st ituti on.

We n e e d n o t , i n the con te xt of the pre sen t cas e, arri ve at a compreh ens ive def ini ti on of 9

“ p h ys i c a l coe rc ion ,” bec aus e unde r any def ini ti on, the bea ti ngs al le ged by def end ant her e wou l d
qua li fy.

-18-case s involving “the same level of police misconduct” as that at issue in Fulminante
, citing,

as a repr esentative case , Milton v. W ainwright
, 407 U.S. 371 (1972). Id. Milton involved the admission of the de fenda

nt’s confe ssion to an underc over police office r in violation of t he defe ndant’s six th amendment right to counsel–a scena rio far remove d from the prese nt case

. ¶ 73 Howeve r one might measure the level of police misconduct in a g iven case , we think it suffice s to say that Fulminante did not involve the same level of police misconduct alleg ed in this case–beating s perpe trated by two police office rs who figu re d prominently in the
sy stematic abuse and torture of prisoners at Are a 2 police headqua rters. We believe that this ty pe of coer cion by the state is qua litatively differ ent from the coer cion that was at issue in Fulminante and constitutes an egreg ious violation of an underly ing principle of our criminal justice sy stem ab o u t wh i ch J ustice Whit e spoke–“that ours is an acc usatorial and not an inquisit orial sy stem.” Id. at 293 (White, J
., dissenting)

. As expressed in Ash cr a f t v. Tennessee , 322 U.S. 143 (1944):

“The Constitution of the United States stands as a bar a g ainst the conviction of
any individual in an America n court by means of a

coer ced c onfession. Ther e have been, and are now, cer

tain fore ign nations with g overnme nts dedicated to an opposite policy : g overnme nts which convict indi v iduals with testimony obtained by police
org anizations possessed of an unrestra ined power t o seize persons suspected of

cr i mes ag ainst the state, hold them in secr et custody
, and wring from t h em

con fessions by phy sical or mental torture. So long as the Constitution rema ins the basic law of our Republic, Americ a will not have that kind of g overnme nt.” Ashcraft
, 322 U.S. at 155.
In sum, without additional guidance from the S up re m e Court, we will not assume that the five just ices in Fulminante who determined that the har mless-err or rule a

pplies to coer ced confe ssio n s i n t ended the rule to apply in case s such as the one now befor e us, involving alleg ed police br

utality and torture

. ¶ 74 Citi ng People v. Mah a f f ey , 1 94 I ll. 2d 154 (2000), the State arg ues that the method of

coer cion is not a basis on which to distinguish this case from Fulminante

. In Mahaffey
, the defe ndant claimed, on postconviction revie w, that newly discovere d evidenc e corr oborate d his pretria l claim that his confe ssion was the product of police abuse at Area 2 and shoul d have been suppressed. We held that the defe ndant was not entitled to an evidentiar y hearing on this claim. Id. at 179. ¶ 75 Th e S t ate is corr ect that in Mahaffey we considered the overwhelming evidence of the defe ndant’s guilt, concluding that the result of his trial would not have been differ ent had the defe ndant’s confe ssion not been admitted. Id. Although this analy sis sug g ests this court was conducting harmless-e rror revie w, Mahaffey never employ s the term “har mless err or” or the phrase “har

mless beyond a rea sonable doubt.” In any event, whether harmless-e rror revie w is applicable to the err oneous admission of a coer ced confe ssion was not befor e us when we decide d Mahaffey

. I n d eed, Mahaffey contains no discussion, or even a mention, of W ilson

o r F u lminante

. Thus, we disagr ee with the S tate that our decision in Mahaffey nece ss ar i l y milit ates in favor of app l ying harmless-e rror analy sis in the instant case

. To the extent Mahaffey may be rea d as implicitl y adopting harmless-e rror revie w for admission of coer ced

-19-confe ssions, itis overrule d.

¶ 76 The State argues that other jurisdictions have applied harmless-e rror revie w to claims of phy sically coer ced confe ssions, urg ing this court to do the same. See Hinton v. Uchtman
, 395 F.3d 810 (7th Cir. 2005); United States v. Alwan
, 279 F.3d 431 (7th Cir. 2002) ; Howard v

. City of Chicago
, No. 03 C 8481, 2004 WL 2397281 (N.D. I ll. 2004); Patterson v. Burge
, 328 F. Supp. 2d 878 (N.D. I ll. 2004); Key v. Artuz
, No. 99-CV-161, 2002 WL 3110 2 6 2 7 (E.D.N.Y . 2002); Zuliani v. Texas , 903 S.W .2d 812 (Tex. App. 1995). ¶ 77 In Howard and Patterson
, althoug h the underly ing case s involv ed cl ai m s o f p o l i ce brutality
, the issue befor e the fede ral district court was the timeliness of the defe ndants’ fede ral civil rig hts actions. In the context of deter mining when their cause s of action acc rued, the court, without discussion, observe d that a coer ced confe ssion is subject to harmless-e rror revie w, citing Fulminante

. Howard
, 2004 WL 2397281 at *6; Patterson
, 328 F. Supp. 2d at 896. Howard and Patterson do not persua de us that harmless-e rror analy sis is require d in the
prese nt case, which involves a challeng e to defe ndant’s conviction and not a limit ations issue. ¶ 78 Key and Alwan are al s o n o t p er s u asive. Key involved the defe ndant’s habeas corpus claim that his c onfession was the product of phy sical coer cion by police. Alwan involved a challeng e to the admission of the defe ndant’s confe ssion, alleg edly obtained throug h duress and torture in I srae l, at the defe ndant’s trial for contempt of court. Although in both case s the fede ral court, in cursor

y fashion, applied the harmless-e rror rule of Fulminante
, in neither

case was such an application nece ssary to the opinion. In Key
, the fede ral district c ourt had alre ady deter

mined that the defe ndant’s confe ssion was not coerce d (K ey , 2002 WL 31102627 at *7), and in Alwan th e f e dera l appea ls court, which conducte d plain-er ror revie w, had alr eady

found no er

ror ( Alwan , 279 F.3d at 438). ¶ 79 In Zul i a n i
, al s o cited by the State, the Texas Court of Appea ls applied Fulminante on direc t appea l, holding that admission of the defe ndant’s confe ssion, which was coerce d throug h phy sical violence and threat of harm by police, was not harmless. The Texas c ourt obs erve d that one of the difficulties in applying Fulminante
, which the court termed an “unusually structure d opinion” ( Zuliani
, 903 S.W .2d at 824), is that the Supreme Court uses the terms “coe rce d confe ssion” and “involuntary confe ssion” interc h angea bly ( id. at 823 (quoting Fulminante
, 499 U.S. at 287 n.3)). The Texas court also observe d, as we have, that (1) the co er ci o n o r involuntariness at issue in Fulminante was not the result of phy sical violence; (2) Ch ie f Ju s tic e Rehnquist “noted the propriety of applying harmless err or analy sis ‘whe re there are no alleg ations of phy sical violence on behalf o f the police’ ”; and (3) the Supreme Court was not require d to decide whether harmless- er ro r analy sis applies to violence- induced confessions. Id. (quoting Fulminante
, 499 U.S. at 311). The Texas court continued:
“Due to increas i n g p o l i ce sophistication in the modern era , in the usual case it is
psycholog ical rathe r than phy sical coer cion that is the claimed abuse. [C itation.] The
prese nt case , howeve r, is a throwbac k to earlier prac tices that combine phy sical and
psycholog ical coer cion. [C itation.] Without clea rer direc tions, we conclude that we must apply

a har mless error

analy sis in li g ht of Fulminante .” Id. at 823-24.

-20-¶ 80 T h e Texas Court of Appea l’s strug g le, in deciding whether harmles s -e rr o r an al y s i s

should apply to a confe ssion induced in part by phy sical violence, reinfor ces our belief that the issue of fede ral constitutional law befor e this court is not as s et t l ed as the State here would argue. ¶ 81 Finally
, in Hinton
, the fede ral appea ls court considere d the defe ndant ’s p et i t i o n fo r habeas corpus relief

, in which he cited newly discovere d evidenc e that his signe d confe ssion

was obtained through police bruta lity at Are a 2 hea dquarte rs. L ieutenant Jon Burg e was in char g e of Hinton’s interrog ation. The defe ndant had testified that police office rs phy sically beat him, smothered him, and elec trocuted him, but produce d no phy sical or other evidenc e in support o f h i s cl aim. The trial court did not find his testimony cre dible. The fede ral
appea ls court aff

irmed the district court’s denial of the defe ndant’s habeas petition. Hinton
, 395 F.3d at 819. Citi ng Fulminante , the fe dera l court dete rmined that the a dmission of the defe ndant’s confe ssion–assuming it wa s coer ced–w as harmless “due to the wea lth of other

corr oborating evidenc e” at trial establishing the defe ndant’s guilt beyond a rea sonable doubt. Id. at 820. ¶ 82 J udg e W ood, in her concurr ence , found i t “somewhat d i sturbing,” g iven t he gra vity of the problem of police abuse at Are a 2, to use the label of “har mless err or.” Id. at 823 (Wood, J
., concur ring ). J udg e Wood observe d t h at t h e Chicag o police depar tment’s OPS repor

ts, which detail the abuse at Are a 2, contain languag e “re miniscent of the news repor ts of 2004

conce rning t h e n o t o ri o us Abu Ghra ib fac ility in Iraq” ( id. at 822), and that the conduct attributed to Bur g e, if proven, would violate the prohi b i t i o n s in the United Nations Convention Ag ainst Torture
, as well as the “funda mental human rig hts pri n ci p l es that the United S tates is committed to uphold” ( id. at 823). Although J udg e Wood knew of “no clea rly established Supreme Court case that would have require d the state court to rec og nize the err or as structura l in nature ,” J udg e Wood also acknow ledg ed that the Supreme Court has

never used the harmless-e rror doctrine in a coer ced confe ssion case wher e the coer cion rose to the level of tortur e. Id. ¶ 83 Hinton
, like Zuliani
, reinfor ces our belief that Fulminante di d n o t decide the issue of fe d er al co nstitut ional law square ly befor e us in the prese nt case

. See also United States v. Slater
, 971 F.2d 626, 636 (10th Cir. 1992) (citing Fulminante for the proposition that absent “alleg ations of phy sical violence on behalf o f th e police, admission of an involuntary confe ssion is subject to harmless err or analy sis”); United States v. Jenk ins
, 938 F.2d 934, 942 (9th Cir. 1991) (“B eca

use the Court was not fac ed with fac ts that nece ssitated its passing on whether harmless-e rror analy sis a pplies even to br

utality -induce d confe ssions, it is unclea r whether the Court intended to re ach that issue in Fulminante .”). ¶ 84 Acc ording l y , we h o l d t h at h ar m l es s -e rr o r analy sis is inapplicable to defe ndant’s postconviction claim t h at h i s confe ssion was the product of phy sical coer cion by police office rs at Are a 2 headqua rters. The per se rule in W ilson
, as modified above, stands: use of

a defe ndant’s phy sically coer ced co n fe s sion as substantive evidenc e of his guilt is never harmless err or. Def

endant has satisfied the prejudice prong of the cause -and- prejudice test. ¶ 85 We reje ct t h e S t at e’ s ar gu m en t that a per se rule will encour ag e frivolous claims of

coer ced confe ssions in succe ssive postco nv ic ti o n p e ti ti o n s b e c a u s e o f th e purported ease with

-21-wh i ch a defe ndant may now establish prejudice

. The State’s argument overlooks that a

defe n d an t must first establish “ca use” for not raising the claim during his or her initial postconviction proce eding s. 7 2 5 I L CS 5/122-1(f) (West 2010). To establish cause , a defe ndant must identify “an objective fac tor that impeded his or her ability to bring the claim in h i s o r h er initial postconviction proce eding s.” Id. Thus, a bare asser tion that the defe ndant’s confe ssion was phy sically coer ced will not establish “ca use” for purposes of the

cause -and- prejudice test, and the per se rule will nev er come into play

. See Pitsonbarger
, 205 I ll. 2d at 460-62. In case s, such as the prese nt one, wher e the defe ndant does satisfy both
prong s of the cause -and- prejudice test, the d ef en d an t i s y et require d to establish the alleg ations set forth in his postconviction petition. Satisfaction of the test mere ly allows the petition to proce ed; it does not relieve the defe ndant of his evidentiar y burde n i n t h e postconviction proce eding

.

¶ 86 IV ¶ 87 Apar

t from its argument conce rning the applicability of harmless-e rror revie w, the State advanc es no other argument or rea son as to why defe ndant’s postconviction petition should
not p ro ceed. According ly
, the onl y matter remaining is the proper di sposition of t his case

. The appellate court rema

nded the matter for a third-stag e evidentiar y hearing on defe ndant’s second succe ssive postconviction petition. 406 I ll. App. 3d at 53. The trial court’s order from which defe ndant sou g ht revie w, howeve r, mere ly denied defe ndant leave to file his postconviction petition. In an eff ort not to “short circ uit” the proce ss, we rema nd this matter for appointment of postconviction counsel and second- stag e proce edings. See People v. Edwards
, 19 7 I l l

. 2 d 239, 244-46 (2001) (deta iling the three stag es of postconviction
proce eding s). ¶ 88 In its amicus brief, the Chicag o Innocenc e Project reque sts that this court instruct the trial
court to permit amendment of defe ndant’s petition to include a cl ai m o f actua l innocenc e based on aff

idavits it ha s s e c u

r ed from Wil liams, Be nson, and Fowle r. Def endant, howeve r, 1 0 has not reque st ed s uch relief befor e this court. Whether amendment of defe ndant’s postconviction petition is desirable is an issue proper ly consid ere d in the first instance by defe ndant and his appointed c ounsel. See People v . Pendleton , 223 I ll. 2d 458, 472 (2006) (desc ribing duties of appointed counsel at the second stag e of postconviction proce eding s).

¶ 89 CONCLUSI ON ¶ 90 For the rea sons stated, we aff irm, as modified, the judgme nt o f t h e ap p el l at e co u rt

reve rsing the trial court’s o rd er d en ying defe ndant leave to file his second succe ssive postconviction petition and rema nd to the trial court for appoint ment of postconviction counsel a nd second- stag e postconviction proc eeding s.

Phot oco pie s of the thr ee af fi davit s ar e app end ed to the amic us bri ef

. I n h i s a f

f i d avit, 1 0 Wi ll ia m s re can ts his tr ia l te st imony

. Bens on, who did not te st if y at def end ant ’s t ri al
, st at es in his af fi davit tha t he never saw def end ant punc h or burn K .B. Fowl er , who al so did not te st if y, st at es in his af fi davitth athe didnotse e de fe nda nt in the ups ta ir s be dro om wher e K .B. was as sau lt ed.

-22-¶ 91 Affir med as modified; ¶ 92 cause rema

nded with direc tions.

-23-