detective made no effort at all to assess whether Hardaway truly
understood the nature of his rights. Hardaway’s youth, the
repeated and prolonged nature of the questioning and the lack of
any friendly counsel render hig 10:30 a.m. and 4:30 p.m.
statements involuntary under the totality of the circumstances.
So those statements should have been suppressed, and the Illinois
courts’ failure to do so represents an unreasonable application
of Supreme Court precedent within the meaning of Section

2254 (d) (1) as expounded upon in Williams v. Taylor.

That leaves for consideration only the question whether the
presence of Youth Officer Geraci during the later 7 p.m. and
10:45 p.m. statements sufficed to render those statements
voluntary under the totality-of-the-circumstances test despite
the involuntariness of Hardaway’s earlier statements. Once again
this Court finds the Illinois courts' affirmative conclusion is
fatally flawed.

Whether a self-inculpatory statement that follows an
involuntary statement of the same nature can nonetheless be
considered voluntary depends in large part upon whether there is
a “break in the stream of events...sufficient to insulate the
statement from the effect of all that went before” (Clewis v.

Texas, 386 U.S. 707, 710 (1967)).%2 In determining the

Bp Clewis, id. held involuntary a confession that occurred

five days following a prior concededly involuntary confession,
during which time the defendant was held in the county jail but

19



By finding that Hardaway waived the right to appeal because
he did not object during the trial, the Illinois Appellate Court
flew in the face of those firmly grounded precedents--which, it
should be repeated, were confirmed post-Enoch in the Miles case.
Nor did the court acknowledge that well-established line of
authority and say that it had decided that the law should be
changed--and even had it done so, it could not of course be said
to be applying a “solidly established” procedural bar (quite the
contrary). This Court therefore holds that Hardaway did not
procedurally default the issue of the voluntariness of his 10:30
a.m. and 4:30 p.m. statements.

So there is no question that Hardaway has preserved his
claim for federal habeas review by having raised the issue of his
statements' claimed involuntariness at every appropriate stage of
the state court proceedings. This opinion proceeds to the merits
of Hardaway’s claims.

Involuntariness of the Challenged Statements

To that end this Court looks to the earlier-quoted Section
2254 (d) (1) dichotomy as explicated in Williams, 529 U.S. at 402-
13. Here the Illinois courts satisfied one branch of that
analysis by having applied the correct rule regarding
voluntariness as derived from Supreme Court precedent. It is
well-established that the voluntariness of all confessions,

including those of juveniles, must be evaluated based on the

13


Hardaway’s statements involuntary under well-established United
States Supreme Court precedent. Hence the Illinois courts
applied the vital and dispositive Supreme Court precedents
unreasonably in finding Hardaway's statements to have been
voluntary.

As stated earlier, Hardaway's constitutionally violative
self-incriminatory statements were eritical to his conviction.
Their admission rendered his trial fundamentally unfair--and
there is no way to evaluate what the verdict would have been if
the well had not been poisoned by the jury's exposure to and
consideration of those statements.

In accordance with Section 2254 and the Section 2254 Rules,
this Court therefore grants Hardaway's Petition. It determines
that justice requires (see Section 2254 Rule 8(a)) that unless
the State of Illinois retries Hardaway within 120 days from the
date of this opinion on the charge on which he was convicted, it

shall release him from custody.

Ce Mee. © Stchee

Milton I. Shadur
Senior United States District Judge

Date: September 13, 2001

23


knew Sandifer but said that he had not seen Sandifer for three
days. Detectives then interviewed Jimesia Cooper, a neighbor of
Hardaway’s, who said that Hardaway had left her house the night
before in the company of Michael Griffin and Sandifer.

Sandifer’s body had been found an hour after Cooper said they had
left her house.

At about 10:30 a.m. detectives questioned Hardaway for the
second time. Hardaway repeated that he had not seen Sandifer for
three days. Hardaway was then informed of his Miranda rights and
advised that if he was charged in the case he could be
transferred from juvenile court and tried and sentenced as an
adult. After the detectives confronted Hardaway with Cooper’s
statements, Hardaway said that the previous night his brother
Cragg had told him to go get Sandifer and that Cragg then drove
off with Sandifer alone, leaving Hardaway and Griffin behind. At
that point Hardaway was placed under arrest. Detectives neither
notified Hardaway’s parents that Hardaway was under arrest nor
communicated with a youth officer.

Throughout the day detectives repeatedly went to the
Hardaway home in search of Cragg Hardaway. While there
detectives spoke with Hardaway’s parents, who continued to remain
at home waiting for their other son. Hardaway’s parents phoned
the police station twice (at noon and at 8 p.m.) to inquire about

Hardaway.


sufficiency of an intervening break, courts look to such factors
as the time that elapsed between confessions, whether the
interrogations took place in the same location and whether the
identity of the interrogators changed between the interrogations
(Oregon v. Elstad, 470 U.S. 298, 310 (1985)).”" gee also

Westover v. United States, a lesser-known case decided together

with Miranda v. Arizona, 384 U.S. 436, 494-96 (1966) .*4

This Court finds under the totality of the circumstances
that the taint from Hardaway’s 4:30 p.m. involuntary confession
had not dissipated by the time of his 7 p.m. and 10:45 p.m.
confessions. Although the interrogators renewed the Miranda and
juvenile warnings, the place of the interrogation remained the
same and no really appreciable period of time had elapsed since
the end of the 4:30 p.m. interrogation, during which Hardaway had
given a full account of his involvement in the crime--certainly
not enough to “insulate the statement from the effect of all that

went before.” In that respect it is noteworthy that Detective

was not subjected to any intervening interrogation.

B  Elstad, id. at 1314 held voluntary a confession obtained
after a proper waiver of the defendant’s rights despite the fact
that the police had obtained an earlier voluntary, but unwarned,
admission from the defendant.

“Westover, id. held involuntary a confession obtained by

FBI agents who, though they warned the defendant of his rights,
interrogated him in the same location as, and immediately
following, a 14-hour interrogation by the local police, who had
not given defendant any like warning of rights.

20


without undertaking a single affirmative act to protect
Hardaway's rights and interests, does not render the 7 p.m. and
10:45 p.m. statements voluntary--coming as they did hard on the
heels of the earlier involuntary confessions obtained from
Hardaway. Any finding that Geraci’s passive presence sufficed to
insulate Hardaway’s later statements from the earlier involuntary
statements would unreasonably flout the standard articulated by
the Supreme Court's Clewis decision. Because the state court
determination regarding the voluntariness of Hardaway’s later
inculpatory statements was thus also unreasonable, Hardaway has
demonstrated his entitlement to a writ.
Conclusion

In summary, 14-year-old Derrick Hardaway was subjected to
repeated interrogations over the course of 16 hours in the
absence of his parents, an attorney or other effective friendly
counsel. Although Hardaway had some prior experience with the
criminal justice system and although he professed to understand
his constitutional rights, the totality of the circumstances--
particularly his youth, the length of the interrogation period
and the absence of an effective friendly adult throughout that
period (especially because the original tainted statements were
elicited in the total absence of even a nominally friendly adult,
and were then followed shortly by the token presence of an

unhelpful though neutral adult observer) --rendered all of

22


right to counsel, but that he did not ask either for a
lawyer or for his parents. But 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. That is to say, we deal
with a person who is not equal to the police in
knowledge and understanding of the consequences of the
questions and answers being recorded and who is unable
to know how to protect his own interests or how to get
the benefits of his constitutional rights.

Gallegos, id. (emphasis added) then continued:

He would have no way of knowing what the consequences
of his confession were without advice as to his
rights--from someone concerned with securing him those
rights--and without the aid of more mature judgment as
to the steps he should take in the predicament in which
he found himself. A lawyer or an adult relative or
friend could have given the petitioner the protection
which his own immaturity could not. Adult advice would
have put him on a less unequal footing with his
interrogators. Without some adult protection against
this inequality, a 14-year-old boy would not be able to
know, let alone assert, such constitutional rights as
he had. To allow this conviction to stand would, in
effect, be to treat him as if he had no constitutional
rights.

Next Gault, 387 U.S. at 55 held involuntary the confession

of a 15-year-old who had not been advised of his constitutional
rights and was interrogated in the absence of a parent, attorney,

or other friendly adult:

We conclude that the constitutional privilege against
self-incrimination is applicable in the case of
juveniles as it is with respect to adults. We
appreciate that special problems may arise with respect
to waiver of the privilege by or on behalf of children,
and that there may well be some differences in
technique--but not in principle--depending on the age
of the child and the presence and competence of
parents. The participation of counsel will, of course,
assist the police, Juvenile Courts and appellate
tribunals in administering the privilege. If counsel

17


intricate procedural obstacles must then satisfy Section 2254's
stringent standards for granting habeas relief on claims that
state courts have considered and rejected on their merits. Here
is Section 2254 (d):
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
Williams v. Taylor, 529 U.S. 362, 402-13 (2000) has recently
provided the definitive parsing of the dual standard embodied in
Section 2254(d) (1): To succeed, a petitioner must show either

(a) that the state court applied a rule contradicting Supreme

Court precedent that was clearly established as of the time the

state conviction became final or (b) that the state court
unreasonably applied a clearly established Supreme Court
principle to the facts of petitioner's case (see also Washington
v. Smith, 219 F.3d 620, 627-28 (7th Cir. 2000)).
Procedural Default
As already stated, Hardaway’s sole asserted ground for

federal habeas relief is that he was denied his Fifth Amendment


adult. Hardaway then repeated his 4:30 p.m. admissions. Geraci
observed Hardaway and said later that the latter was not
intimidated or abused in any way, but he made no effort to speak
with Hardaway alone.

Finally, at 10:45 p.m. Hardaway (who had then been in
custody over 14 hours and had been under arrest for the last 12
hours of that period) began to give a 22-page court-reported
statement in the presence of McCann, Geraci and Harney. Hardaway
gave a full confession to his participation in the murder,
completing his statement at midnight.

Procedural History

On December 6, 1994 the Juvenile Division of the Circuit
Court of Cook County granted the State’s petition to prosecute
Hardaway as an adult (Ex. A-16 at 25). Before trial Hardaway
moved to quash his arrest, to suppress any evidence obtained as a
result of the arrest and to suppress his inculpatory statements

on the ground that they were involuntary. Denying those motions,

the trial court found that the police had probable cause to
arrest and that Hardaway’s statements were voluntarily given
under the totality of the circumstances. In the ensuing jury
trial Hardaway was found guilty of the first-degree murder of
Sandifer and sentenced to 45 years in prison. Hardaway’s court-
reported confession provided key evidence of his role in the

crime.


Detectives first requested a youth officer for Hardaway at
about 4 p.m., fully 9 hours after he had been taken into the
station and 5-1/2 hours after his arrest. No youth officer was
assigned at that time, however.

At 4:30 p.m. detectives began a third interview of Hardaway,
though still with no youth officer present. Detective McCann
again read Hardaway his Miranda rights and advised him that if he
was charged he could be tried as an adult. McCann then told
Hardaway that Griffin had contradicted Hardaway’s story, and he
took Hardaway to a room where he could see that Griffin was at
the station. Hardaway then admitted (1) having gotten into the
car with Sandifer and his brother Cragg and (2) that he had been
present when Cragg shot Sandifer shortly thereafter.

At 7 p.m. Detective McCann interrogated Hardaway again, this
time accompanied by Assistant State’s Attorney Theresa Harney
(“Harney”). For the first time Youth Officer Geraci (“Geraci”)

was also present. Harney explained to Hardaway that Geraci was a

youth officer and that he was present “as an observer to assist
[Hardaway] if he had any questions or any problems.” Geraci
asked Hardaway if there was anything he could assist him with,
and Hardaway told him “no.” Harney read Hardaway his Miranda
rights and had Hardaway explain to her what his rights meant.
Harney also told Hardaway that if he was charged in connection

with the murder of Sandifer he could be tried and sentenced as an


was not present for some permissible reason when an

admission was obtained, the greatest care must be taken

to assure that the admission was voluntary, in the

sense not only that it was not coerced or suggested,

but also that it was not the product of ignorance of

rights or of adolescent fantasy, fright, or despair.

Neither time nor intervening caselaw has attenuated, let
alone vitiated, the combined force of Haley, Gallegos and
Gault." This Court finds unreasonable the state court’s finding
that Hardaway’s 10:30 a.m. and 4:30 p.m. statements were
voluntary under the totality of the circumstances. Neither
Hardaway’s parents nor an attorney nor a youth officer was
present during the first 10 hours of this 14-year-old’s
interrogations to provide “counsel and support” and protect him
from becoming “the victim first of fear, then of panic” (Haley,
332 U.S. at 600). Even younger than the defendant in Haley and
interrogated twice as long, Hardaway confessed his part in the
murder to a police detective while entirely alone--with no
friendly adult present.

While to be sure Hardaway had been read his Miranda rights

and given a juvenile warning before making those statements, the

“ Hardaway's circumstances are clearly distinguishable

from those in Fare v. Michael C., 442 U.S. 707, 726-27 (1979), in
which the Court found voluntary the statements made by a 16-1/2
year old with several prior convictions after a brief police
interrogation, despite the absence of friendly counsel.
Importantly, paralleling the cases discussed in the text,
Hardaway was two years younger than the defendant in Fare, had no
prior convictions and was subjected to over 10 hours of repeated
interrogations.

18


2254 petition, the petitioner must have both exhausted his state
court remedies and avoided any fatal procedural defaults (Section
2254(b) (1); Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.
1996)). Here there is no question as to Hardaway's satisfaction
of the first of those requirements, for he “g[a]ve the state
courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State's established
appellate review process” (O/’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999)).

That being so, this opinion turns to the separate doctrine
of procedural default. Procedural default occurs in one of two
situations: Either (1) a petitioner failed to present the
federal constitutional issue fairly to the state courts before
raising it in the federal habeas proceedings (Spreitzer v.
Schomig, 219 F.3d 639, 644-45 (7th Cir.2000)) or (2) the state
court rejected the claim on an independent and adequate state law
ground (Coleman v. Thompson, 501 U.S. 722, 729 (1991)). If
barred on procedural default grounds, a claim will not be
cognizable in federal habeas proceedings unless the petitioner
can clear one of two hurdles established by Coleman, id. at 750:

[T]he prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure

to consider the claims will result in a fundamental

miscarriage of justice.

Any claims that manage to survive those threshold and


z j
Minute Ordee Lorm (06/973 Lo i “\ f
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inited states District Court, Northern District of Illinois

N: f Assis fu 1 iti ii
vin MagitateJudoe Milton I, Shadur “Than signed Judge
CASE NUMBER 01 C 3963 DATE 9/13/2001
CASE Derrick Hardaway vs. Donald S. Young
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented}

MOTION:

DOCKET ENTRY:

(6) im Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due____.

(4) Oo Ruling/Hearingon_sset for__— at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—_—set for___att

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——at__
{7) a) Trial[set for/re-set for]on_ at.

(8) a [Bench/Jury trial] [Hearing] held/continued toa

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (OGeneral Rule21 OFRCP41(a)(1) CI FRCP41(a)(2).

(10) Mi [Otherdocketentry] Enter Memorandum Opinion and Order. In accordance with Section 2254 and
the Section 254 Rules, this Court therefore grants Hardaway’ s Petition. It determines that justice requires
(see Section 2254 Rule 8(a) that unless the State of Illinois retries Hardaway within 120 days from the
date of this opinion on the charge on which he was convicted, it shall release him from custody.

ali [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
number of notices

Notices mailed by judge’s staff.
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statements. Waiver is an independent and adequate state
procedural ground for dismissal (Aliwoli_ v. Gilmore, 127 F.3d
632, 634 (7th Cir. 1997)).

Federal courts are generally bound by a state court's
finding of waiver under its own law (White v. Peters, 990 F.2d
338, 340 (7th Cir. 1993)). If a state ground is not followed
strictly, it will still be respected as long as it is “solidly

established” (Prihoda v. McCaughtry, 910 F.2d 1379, 1384 (7th

Cir. 1990), quoted in White). But an “infrequently,
unexpectedly, or freakishly” applied state procedural bar does
not constitute an “adequate” basis for precluding habeas review
(id. at 1383; see also Johnson v. Mississippi, 486 U.S. 578, 587
(1988)). When a state court “chooses to ignore the fact that the
petitioner has fully complied with the state’s articulated
procedural rules and simply deems the petitioner’s claim waived,”
federal courts are not bound by the state court’s finding of

waiver (Williams v. Lane, 826 F.2d 654, 660 (7th Cir. 1987)).

Illinois does not have a “solidly established” rule
requiring defendants to object during the trial to the admission
of a confession when--as was done here--they have already raised

the issue in a pretrial motion to suppress. Enoch, the case

cited by the Illinois Appellate Court, does not really address

11


rights when involuntary statements were used against him at trial
(H. Mem. 1).5 As a preliminary matter, Respondent has argued
that Hardaway procedurally defaulted his claim as to his 10:30
a.m. and 4:30 p.m. statements under the independent -and-adequate-
state-law-ground rule.*®

Although Hardaway made a pretrial motion to suppress all of
his statements and raised that issue again in a motion for a new
trial after the verdict, the Illinois Appellate Court found that
Hardaway had waived any challenge to the voluntariness of those
statements on appeal.’ Applying People v. Enoch, 122 111.2d 176,
186, 522 N.E.2d 1124, 1130 (1988), the Appellate Court concluded
that under Illinois law both an objection at trial and a written
post-trial motion are necessary to preserve a claimed trial court
error for review. Thus the court ruled that Hardaway had waived
any challenge to his 10:30 a.m. and 4:30 p.m. statements by

failing to object during the trial to testimony regarding those

* Because his memorandum of law accompanying his Petition
lacks pagination, this Court has numbered its pages beginning
with the first page following the still-unnumbered cover page.

° Hardaway does not challenge the voluntariness of his 8:30

a.m. statement.

7 What was really meant, of course, was that Hardaway had

forfeited (not waived) his right to advance such a challenge--
there was surely nothing voluntary about any claimed surrender of
that right on his part (see, e.g., the discussion in United
States v. Cooper, 243 F. 411, 415-16 (7 Cir. 2001)). But this
opinion will adhere, as most cases do, to the common (though
inexact) usage that employs “waiver” to describe the loss of a
right to assert a legal argument.

10



After his jury trial and sentencing, Hardaway appealed his
conviction to the Illinois Appellate Court. On September 10,
1999 his conviction was affirmed in the earlier-cited published
opinion and an accompanying unpublished Rule 23 order (Ex. D).

Hardaway next filed a Petition for Leave To Appeal to the
Illinois Supreme Court (Ex. E). Leave was denied in that court's
Docket No. 88421 on May 31, 2000 in the typical one-sentence
order (Ex. F, reported in table at 189 Ill. 2d 668, 731 N.E.2d
767). That final disposition renders this May 29, 2001 Petition
timely under the one-year limitation period prescribed by Section
2244 (d) (1) (A).

Hardaway's Petition advances only one contention that he
claims entitles him to federal habeas relief, asserting that his
Fifth Amendment right* to be free from compelled self-
incrimination was violated when involuntary statements were used
against him at trial. Hence this opinion focuses on the
voluntariness or involuntariness of those statements in
constitutional terms.

Procedural Framework

Before any federal court can address the merits of a Section

* As always, this opinion adheres to the conventional and

convenient (though technically imprecise) practice of referring
to the underlying Bill of Rights provision (which of course
imposes limitations only on the federal government) rather than
the Fourteenth Amendment (which applies to state actors and has
been construed to embody such Bill of Rights guaranties).

7


McCann, who had elicited the 4:30 p.m. confession from Hardaway,
continued to be present during the later confessions.

Importantly, Geraci (though present as an almost totally
passive observer) wholly failed to fulfill the role of a friendly
adult during the 7 and 10:45 p.m. interrogations, providing the
14-year-old Hardaway with none of the counsel needed to ensure
that he had a full appreciation of the potential consequences of
making a statement. Although Hardaway did recount to Harney his
understanding of the rights warning and did not ask for either
his parents or an attorney, that did not relieve Geraci of his
responsibilities. Geraci made no affirmative effort to provide
counsel to the 14-year-old, instead merely saying with the
interrogators present that he was there to do anything he could
for Hardaway. Geraci never even tried to speak to Hardaway in
private, nor did he make any attempt to assess whether Hardaway
understood his constitutional rights or wanted to talk to his
parents or an attorney. To be properly effective, a friendly
adult does not wait passively for a juvenile to voice a need for
help--instead such an adult acts affirmatively to protect the
juvenile's interests, because the very need for a friendly adult
is grounded in the recognition that a juvenile lacks the
experience or maturity to do so on his or her own (see Gallegos,
370 U.S. at 54).

Hence this Court holds that the mere presence of Geraci,

21



Appellate Court's statement.

At 8 a.m. on September 1, 1994 three Chicago police
detectives went to Hardaway’s home to question him (he was then
14 years old) and his brother Cragg (who was then age 16) in
connection with the death of 11-year-old Robert Sandifer
(“Sandifer”) the night before. Encountering Hardaway’s father,
the detectives explained that they had information that his sons
had been seen with Sandifer shortly before his murder.
Hardaway’s father woke him and brought him to the living room to
talk with the detectives (Cragg was not then at home).

Hardaway agreed to accompany the detectives to the police
station to help with the investigation. Although the detectives
offered to give Hardaway’s father a ride to the station along
with Hardaway, the father declined in order to wait at home for
his other son.? Before they left, the detectives gave Hardaway’s
father their card and phone number and told him the location of
the police station. At that time the detectives did not read
Hardaway his Miranda rights or tell him that he was a suspect.

Two detectives interviewed Hardaway shortly after he arrived
at the police station at about 8:30 a.m. Hardaway was still not

read his Miranda rights. In that interview Hardaway admitted he

> At trial Mr. Hardaway testified that the police had
refused to permit him to accompany his son to the station.
Because the trial court made a finding of fact rejecting that
testimony, a finding that the Appellate Court upheld, the version
set out in the text here controls.

3


totality of the circumstances surrounding the confessions
(Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Gallegos v.

Colorado, 370 U.S. 49, 55 (1962)). And the Court has long

recognized the need to exercise “special caution” when assessing
the voluntariness of juvenile confessions (In_re Gault, 387 U.S.
1, 45 (1967)). Among the factors the Court has looked to for
that purpose are the youth of the accused, his or her education
and prior experiences with the criminal justice system, the
length of detention, whether the questioning is repeated or
prolonged and the presence or absence of a parent, lawyer or
other friendly adult during an interrogation (Schneckloth, 412
U.S. at 226; Gallegos, 370 U.S. at 54-55; Haley v. Ohio, 332 U.S.
596, 599-600 (1948)).

In evaluating Hardaway’s statements the Illinois courts did
indeed speak of a totality-of-circumstances approach, stating
that they weighed Hardaway’s age and the length of the repeated

interrogations by relays of detectives against his previous

experiences with the criminal justice system,*® his professed
understanding of his Miranda rights and the presence of a youth
officer during the later interrogations. In those terms the
trial court determined that Hardaway’s statements were voluntary,

and the Illinois Appellate Court affirmed.

° Those prior contacts included 12 court referrals for

delinquency, 3 other court referrals adjusted in Complaint
screening and 7 station delinquencies.

14


the ordeal from midnight to 5 a.m. But we cannot
believe a lad of tender years is a match for the police
in such a contest. He needs counsel and support if he
is not to become the victim first of fear, then of
panic. He needs someone on whom to lean lest the
overpowering presence of the law, as he knows it, crush
him. No friend stood at the side of this 15-year-old
boy as the police, working in relays, questioned him
hour after hour, from midnight until dawn. No lawyer
stood guard to make sure that the police went so far
and no farther, to see to it that they stopped short of
the point where he became the victim of coercion. No
counsel or friend was called during the critical hours
of questioning.

Nor did Haley, id. at 601 find convincing the prosecution’s
argument that the youth’s confession was voluntary because he had
been informed of his constitutional rights:

But we are told that this boy was advised of his
constitutional rights before he signed the confession
and that, knowing them, he nevertheless confessed.
That assumes, however, that a boy of fifteen, without
aid of counsel, would have a full appreciation of that
advice and that on the facts of this record he had a
freedom of choice. We cannot indulge those
assumptions. Moreover, we cannot give any weight to
recitals which merely formalize constitutional
requirements. Formulas of respect for constitutional
safeguards cannot prevail over the facts of life which
contradict them. They may not become a cloak for
inquisitorial practices and make an empty form of the
due process of law for which free men fought and died
to obtain.

Gallegos, 370 U.S. at 54 again addressed the need for
friendly adult counsel during juvenile confessions, holding
involuntary the confession of a 14-year-old who was prevented
from seeing his mother, an attorney or any other friendly adult
during five days of detention:

The prosecution says that the boy was advised of his

16


Hardaway’s counsel.” Then, after reviewing Respondent’s Answer
to the Petition and accompanying Exhibits (cited “Ex. --”), this
Court found that a reply memorandum was required. That is now in
hand.

All of the filings to date have made it clear that the
Petition is amenable to disposition on those papers, without the
need for an evidentiary hearing (see Section 2254 Rule 8(a)).

For the reasons stated in this memorandum opinion and order,
Hardaway’s Petition is granted.
Facts

Under Section 2254(e) (1) the state court’s findings of fact
are presumptively correct in any federal habeas proceeding.
Accordingly, this opinion draws from the recitation of the facts
in the Illinois Appellate Court’s direct review of Hardaway’s
conviction, reported at 307 Ill. App. 3d 592, 594-603, 718 N.E.2d
682, 685-91 (1% Dist. 1999). Because that opinion's factual

recitation is understandably much more extensive and intermingles

matters relevant to the current inquiry with facts bearing on
Hardaway's trial and conviction, what follows is a distillation
of the currently relevant facts rather than (as this Court has

done in other habeas cases) a verbatim reproduction of the

2? Indeed, attorney Geraghty had not only handled all of
Hardaway's state court proceedings but had also prepared the
memorandum of law accompanying the form Petition (even though the
filing was nominally made pro se).

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
DERRICK HARDAWAY #K65596,

)
)
)
Petitioner, )

v. No. 01 C 3963

DONALD S. YOUNG, WARDEN,
Respondent. }
MEMORANDUM OPINION AND ORDER

On May 29, 2001 Derrick Hardaway (“Hardaway”) filed a
Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C.
§22541 to challenge his November 1, 1996 first-degree murder
conviction on which he is currently serving a 45-year sentence.
In accordance with Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts (“Section 2254
Rules”), this Court promptly reviewed the Petition and its
attachments.
NW. That threshold review prompted the issuance of a June 4
memorandum order because the Petition posed issues that could not
be evaluated from that filing alone. That being so, this Court
(1) ordered Warden Donald Young (“Respondent”) to file a
responsive pleading in accordance with Section 2254 Rule 4 and

(2) appointed Thomas Geraghty, Esq. to act pro bono publico as

1 All further references to Title 28's provisions will

simply take the form “Section--.”


that issue as such.* People v. Miles, 188 I11.App.3d 471, 480,
544 N.E.2d 986, 992-93 (18% Dist. 1989) (citations omitted and
emphasis added) --issued post-Enoch and expressly referring to
that decision--explains Illinois waiver law as to the admission
of confessions:

The failure to challenge the admission of a confession

at trial either by a motion to suppress or by

appropriate objection at trial and then by a post-trial

motion generally waives appellate review of the matter.

Additionally, a defendant must normally challenge the

voluntariness of a confession by a motion to suppress

which, under Illinois law, must “be made before trial

unless opportunity therefor did not exist or the

defendant was not aware of the grounds for the motion.”

Miles thus teaches that a defendant who raises the
voluntariness of his confession in both a pretrial motion to
suppress and a post-trial motion for a new trial, though not by
an objection at trial, has preserved the issue for appellate
review. That principle, which recognizes the procedural
equivalence of a pretrial motion to suppress and an objection on
the same ground during trial, is well settled in Illinois law
(see, e.g., People v. Taylor, 33 Ill. 2d 417, 421, 211 N.E. 2d
673, 675 (1965); People v. Calderon, 101 Ill. App. 3d 469, 477,
428 N.E. 2d 571, 576 (1% Dist. 1981); People v. Hall, 40 Ill.

App. 3d 56, 61, 351 N.E.2d 639, 643 (1°* Dist. 1976)).

8 In Enoch, 122 Ill. 2d at 185-87, 522 N.E, 2d at 1129-30
the defendant objected at trial to the admission of certain
evidence, but he did not also comply with the Illinois statutory
requirement that he file a post-trial motion raising that issue.

12


Because the Illinois courts thus applied the right rule in
evaluating the voluntariness of his statements, Hardaway's
entitlement to habeas relief hinges on his ability to demonstrate
that the state courts applied that rule unreasonably. On that
score Hardaway urges that his youth, the length of the repeated
interrogations and the absence of a parent or effective adult
advisor render his statements involuntary under United States
Supreme Court precedents.’° That contention requires an analysis
of the earlier Supreme Court cases dealing with juvenile
confessions.

More than a half century ago Haley, 332 U.S. at 599-600
found involuntary the confession of a 15-year-old obtained after
five hours of late-night interrogation outside of the presence of
his mother or an attorney:

[W]hen, as here, a mere child--an easy victim of the

law--is before us, special care in scrutinizing the

record must be used. Age 15 is a tender and difficult

age for a boy of any race. He cannot be judged by the

more exacting standards of maturity. That which would

leave a man cold and unimpressed can overawe and

overwhelm a lad in his early teens. This is the period

of great instability which the crisis of adolescence

produces. A 15-year old lad, questioned through the

dead of night by relays of police, is a ready victim
for the inquisition. Mature men possibly might stand

10 Hardaway also alleges that one of the detectives abused
him during questioning and that the detectives frustrated his
parents’ attempts to confer with him before the interrogations,
but the trial court resolved those factual issues against him.
Hardaway has not rebutted the presumption of correctness of the
trial court’s determination by clear and convincing evidence, so
this Court will not overturn those findings (Section 2254 (e) (1)).

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