An Illinois native, born in 1951, Johnson was
convicted at age 19 of raping a Joliet woman, torturing his victim with
a cigarette lighter in the process.
The charge of rape carried a
sentence of 25 to 35 years in prison, with a consecutive term of five to
ten years added on conviction for burglary. Even with "good
time," Johnson should have been confined until April 1986, but
authorities saw fit to release him more than three years prematurely, on
March 10, 1983. Their generosity would cost at least ten lives.
For two long months, between June 25 and August 25,
1983, Joliet and surrounding communities were terrorized by a series of
random "weekend murders," marked by savage violence. Law
enforcement officers were mobilized to sweep Will County in a search for
suspects, but the killer managed to elude them, slaughtering his victims
with impunity, while residents stocked up on guns and ammunition in
their own defense.
The crime spree started with the death of two Will
County sisters on Saturday, June 25. A week later, on July 2, Kenneth
and Terri Johnson were shot to death without apparent motive, the
woman's body discarded in southwestern Cook County. Five persons --
including two deputy sheriffs -- were killed on Saturday, July 16, in
what authorities termed a "random wholesale slaughter." The
next evening, 18-year-old Anthony Hackett was shot to death, his fiancee
raped and stabbed by a black assailant who left her for dead.
The violence escalated a month later. On Saturday,
August 20, four women were shot and stabbed to death in a Joliet pottery
shop, their handbags dumped nearby with money still inside.
Once more, police were left without a solid clue in the slayings of proprietor
Marilyn Baers, 46, and her three customers: 75-year-old Anna Ryan; 29-year-old
Pamela Ryan; and 39-year-old Barbara Dunbar.
On August 21, the killer(s)
shifted to Park Forest, in Cook County, binding 40-year-old Ralph Dixon
and 25-year-old Crystal Knight before slashing their throats in Dixon's
apartment, stabbing the woman 20 times. The murder of 82-year-old Anna
Johnson broke the pattern, falling on Thursday, August 25, and a suspect
was swiftly apprehended in that case, leaving seventeen murders unsolved.
On March 9, 1984, Milton Johnson was arrested while
visiting his parole officer, charged with aggravated battery and deviate
sexual assault in the rape of Anthony Hackett's fiancee. Officers
focused on Johnson after repeated complaints of a black pickup driver
harassing Joliet women over the past two weeks, ending when one of the
victim's memorized Johnson's license number.
Evidence collected at
various murder scenes -- including fibers , fingerprints , and a sales
receipt baring the name of Johnson's step-father -- linked Johnson to
ten of the Will County murders, including Hackett's, the pottery shop
massacre, and the carnage of July 16. (The receipt had been found
beneath one of the murdered officers.) In addition to those cases,
police saw a "strong possibility" of Milton's participation in
the July 2 murders of Kenneth and Terri Johnson.
Granted a change of venue on grounds of pretrial
publicity, the defendant waived his right to trial by jury in the
Hackett case. Convicted of all counts in September 1984, he was
sentenced to death. Four months later, on January 23, 1986, Johnson was
convicted of quadruple murder in the ceramic shop massacre, a second
death sentence pronounced five days later. Prosecution in five other
slayings was indefinitely deferred.
Michael Newton - An Encyclopedia of Modern Serial
Killers - Hunting Humans
Docket No. 85134
Agenda 1-January 2002.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
MILTON JOHNSON, Appellant.
JUSTICE FITZGERALD delivered the
opinion of the court:
The defendant, Milton Johnson, appeals a Will County
circuit court order dismissing his first amended post-conviction
petition without an evidentiary hearing. Because the defendant was
sentenced to death, his appeal lies directly to this court. See 134 Ill.
2d R. 651(a). We now affirm in part, reverse in part, and remand for
On July 16, 1983, Patricia Payne and
her boyfriend, Anthony Hackett, drove from their hometown of Emden,
Illinois, and spent the day at Great America Amusement Park in Gurnee,
That day, Hackett bought a stuffed
doll depicting the popular Tasmanian Devil character; he placed the
receipt for the doll in his wallet. Around 10 p.m., Payne and Hackett
left the park and, on the way home, they stopped Hackett's car along
Interstate 55 in Will County to sleep. Hackett slept in the front seat;
Payne slept in the back.
Around 1:30 a.m. on July 17, Payne awoke to tapping
on the passenger-side window followed by gunshots which struck and
killed Hackett. The assailant opened the passenger-side door and ordered
Payne to give him Hackett's wallet and her purse. He then ordered Payne
to crawl from the car and into a pickup truck parked nearby. The
assailant climbed into the truck and drove down the interstate.
While driving, the assailant sexually assaulted Payne;
after exiting the interstate and stopping the truck, he raped her. The
assailant again started to drive, but pulled the truck onto the shoulder
of the road 10 minutes later. The assailant then stabbed Payne in the
chest and dumped her from the truck. Payne was found on the grassy
median an hour later at 5:30 a.m. by a passing motorist. She had no
pulse or blood pressure, and she was rushed to a Joliet hospital, where
doctors performed emergency surgery. Payne survived.
Later that morning, Special Agent John Meduga of the
Illinois Department of Law Enforcement (now known as the Illinois State
Police) spoke with Payne. Payne indicated to Meduga that her assailant
was an African American man with no observable facial hair.
Eight days later, Payne looked through approximately
1,500 mugshots and selected 42 photographs of persons with facial
characteristics similar to her assailant, 34 of whom had facial hair.
The record does not reveal whether the defendant's photograph was chosen
by Payne. More than a month later, Payne looked through 137 mugshots,
including one of the defendant, and selected four photographs of persons
with facial hair and facial characteristics similar to her assailant.
Payne did not choose the defendant's photograph.
The police investigation into these
crimes stalled until Ann Shoemaker telephoned the Will County sheriff's
office in February 1984. Shoemaker described an incident in which a dark
pickup truck had passed her several times while she was driving one
night in July 1983. She and a friend followed the truck and recorded its
licence plate number.
On March 6, 1984, she gave this number
to the police, who traced it to a truck owned by Sam Myers, the
defendant's stepfather. After Myers signed a consent form, the police
searched the truck and found Caucasian head hairs similar to Payne's
hair, bloodstains, a steak knife, reddish brown fibers, and a sales
receipt for a Tasmanian Devil stuffed doll. Based on these items, the
police obtained a search warrant for Myers' residence, where the
defendant lived. The police seized three .357 Magnum cartridges from a
dresser in Myers' bedroom.
Also on March 6, 1984, Payne looked at five mugshots.
The defendant's photograph was the only one among the five which Payne
had seen on September 6, 1983. After several minutes, Payne tentatively
identified the defendant as her assailant. On March 9, Payne viewed a
six-person lineup. After each person in the lineup repeated commands
that the assailant had given Payne on the night of her ordeal, Payne
unmistakably identified the defendant as her assailant.
Initially, the Will County public defender was
appointed to represent the defendant. On June 1, 1984, the day before
the scheduled trial date, William Swano entered his appearance as the
defendant's retained attorney. The trial court granted Swano three
continuances, totaling 55 days, and set the trial date for July 26,
1984. The defendant moved for a change of venue, citing negative
pretrial publicity in Will County, and the trial court transferred the
case to Iroquois County.
Following a jury trial, the defendant was convicted
of the first degree murder of Hackett, as well as the aggravated
kidnapping, deviate sexual assault, rape, and attempted murder of Payne.
The defendant waived his right to a sentencing jury, and the trial court
found the defendant eligible for the death penalty. The trial court
further found no mitigating circumstances sufficient to preclude the
death penalty and sentenced the defendant to death for Hackett's murder
and to concurrent terms of 40 years' imprisonment for deviate sexual
assault, rape, and attempted murder. On direct appeal, this court
affirmed the defendant's convictions and sentences. See People v.
Johnson, 114 Ill. 2d 170 (1986).
The defendant then filed a pro se post-conviction
petition in the Will County circuit court, alleging that he received
ineffective assistance of counsel on direct appeal and in post-conviction
proceedings. The trial court granted the State's motion to dismiss the
petition. On appeal, we affirmed in part, reversed in part, and remanded.
We held that the trial court properly dismissed the defendant's claim of
ineffective assistance of appellate counsel, but that the trial court
improperly dismissed the defendant's claim relating to his post-conviction
attorney's performance. See People v. Johnson, 154 Ill. 2d 227
On remand, the defendant filed a nine-count first
amended post-conviction petition, which is the subject of this appeal.
The State filed a motion dismiss, and, in a written order, the trial
court dismissed the defendant's amended petition without an evidentiary
hearing. This appeal followed.
On appeal, the defendant has shuffled and refashioned
the claims raised in his amended petition. He essentially raises seven
issues: (1) whether his pending execution is unconstitutional because
the State possesses forensic evidence which would help establish his
innocence through DNA testing; (2) whether he was denied due process
because the trial court refused to grant Swano sufficient time to
prepare the defendant's case for trial and sentencing; (3) whether he
was denied effective assistance of trial counsel because of several
alleged shortcomings by Swano before trial, during trial and sentencing,
and after trial; (4) whether he was denied effective assistance of trial
counsel because of several alleged shortcomings by the public defender;
(5) whether he was denied effective assistance of appellate counsel
because appellate counsel failed to raise several issues on his direct
appeal; (6) whether he was denied due process by the State's concealment
of a hypnotic interview session with Payne; and (7) whether he was
denied due process because the trial court refused to grant discovery on
his post-conviction claims.
The Illinois Post-Conviction Hearing Act provides a
procedural mechanism through which a criminal defendant can assert "that
in the proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the
United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West
1998); see People v. Coleman, 183 Ill. 2d 366, 378-79 (1998).
In a post-conviction proceeding, the trial court does not redetermine a
defendant's innocence or guilt, but instead examines constitutional
issues which escaped earlier review. See People v. Evans, 186
Ill. 2d 83, 89 (1999). A post-conviction petition is a collateral attack
upon a prior conviction and sentence, not a substitute for or an
addendum to a direct appeal. People v. West, 187 Ill. 2d 418,
425 (1999). Consequently, any issues which were decided on direct appeal
are barred by the doctrine of res judicata; any issues which
could have been raised on direct appeal are forfeited. West,
187 Ill. 2d at 425.
Once a capital defendant files a post-conviction
petition, the trial court examines the petition and appoints an attorney
for the defendant, if necessary. 725 ILCS 5/122-2.1(a)(1) (West 1998).
The State then must answer or move to dismiss the petition. 725 ILCS
5/122-5 (West 1998). If the State files a motion to dismiss, the trial
court must rule on the legal sufficiency of the defendant's allegations,
taking all well-pleaded facts as true. People v. Ward, 187 Ill.
2d 249, 255 (1999). A defendant is not entitled to an evidentiary
hearing unless the allegations of the petition, supported by the trial
record and any accompanying affidavits, make a substantial showing of a
constitutional violation. People v. Enis, 194 Ill. 2d 361, 376
(2000). Because a trial court's ruling on the sufficiency of the
defendant's allegations is a legal determination, our review is de
novo. Coleman, 183 Ill. 2d at 388-89.
Initially, we note that the trial court correctly
dismissed several of the defendant's claims.
The defendant contends that his petition makes a
substantial showing his due process rights were violated because the
trial court refused to grant Swano sufficient time to prepare for trial
and sentencing. This issue could have been raised on direct appeal and
The defendant also contends that his petition made a
substantial showing that he received ineffective assistance of counsel
from the public defender. The defendant charges that assistant public
defenders failed to preserve his right to substitute trial judges and
failed to file a continuance motion. These issues could have been raised
on direct appeal and are forfeited. The defendant further charges that
assistant public defenders failed to investigate trial and mitigation
evidence and failed to prepare for trial and sentencing. These claims,
states the defendant, are revealed by the record. Accordingly, they also
could have been raised on direct appeal and are forfeited.
The defendant further contends that his petition made
a substantial showing his due process rights were violated because the
State failed to notify Swano that Payne had undergone hypnosis. The
defendant cites People v. Gibson, 117 Ill. App. 3d 270, 278
(1983), in which the appellate court held that the State must provide
notice to the defense if it intends to introduce testimony of a
previously hypnotized witness.
Here, the State notes that it informed the public
defenders about Payne's hypnosis session. Assistant public defenders
even informed the trial court that they discussed filing a motion to
suppress Payne's identification. Though, in answers to the defendant's
post-conviction interrogatories, Swano asserted, "I received no
information regarding hypnosis of the victim Patricia Payne," Swano also
stated, "To my knowledge, [the public defenders] turned over everything
they had" when he entered his appearance. The State also correctly notes
that Payne's hypnosis session focused only on the identification of her
assailant's truck, not on the identification of her assailant. At trial,
the State did not inquire into her identification of the truck, and
Payne's testimony was admissible. See People v. Zayas, 131 Ill.
2d 284, 295 (1989) ("a witness' hypnotically induced testimony
*** is not admissible in Illinois courts" (emphasis added)). The
defendant failed to make a substantial showing his due process rights
were violated, and the trial court correctly dismissed this claim.
We now turn to the defendant's remaining claims.
The defendant contends that his pending execution is
unconstitutional because the State possesses forensic evidence which
would establish his innocence. He asserts that DNA testing of a Vitullo
rape kit completed at the hospital where Payne was treated would cast
doubt on whether he raped Payne and, accordingly, whether he murdered
In his petition, the defendant alleged that a vaginal
swab taken during Payne's July 17, 1983, hospital examination was
delivered to and retained by the State Police Crime Lab; this swab
purportedly was never tested. The defendant claimed,
"[This swab] will have been maintained by the lab or
evidence section in an acceptably preserved and uncontaminated state for
DNA testing. Said swab would never be stored in a manner that would
allow it to come into contact with foreign DNA. The swab has been
subject to a chain of custody sufficient to establish that is has not
been substituted, tampered with, replaced, or altered in any material
The defendant further alleged that the only direct
evidence in this case was Payne's identification testimony; thus, the
central issue in this case was identification. The defendant then cited
section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS
5/116-3 (West 1998)), which, he claimed, provides for such testing upon
the allegations in his amended petition.
The defendant filed an appendix of exhibits
supporting his petition, which included a form dated July 17, 1983, and
entitled "AUTHORIZATION FOR RELEASE OF INFORMATION AND EVIDENCE TO LAW
ENFORCEMENT AGENCY," in which Payne authorized St. Joseph Hospital in
Joliet, Illinois, to release "One sealed evidence kit," "Medical records,"
Slides/Smears/Specimens," and "Sealed clothing bag(s)" to Special Agent
Meduga. The appendix also contained a form signed by Illinois Department
of Law Enforcement crime scene technician Melvin Trojanowski entitled "EVIDENCE
RECEIPT," which lists a "Vitullo Evidence Kit, marked Patricia Earl
Payne, Received from S/A John Meduga" as agency exhibit 37. At trial,
the State stipulated that defense exhibit 14 was the kit, which was
later admitted into evidence. On the record before us, however, we
cannot discern the condition of the Vitullo kit, and we do not know
whether the kit contains any testable genetic material.
A claim of actual innocence based on newly discovered
evidence may be raised in a post-conviction petition. See People v.
Washington, 171 Ill. 2d 475, 489 (1996); see also People v.
Bull, 185 Ill. 2d 179, 212 (1998) ("An important goal of the
criminal justice process is the protection of the innocent accused
against an erroneous conviction"). The supporting evidence must be new,
material, noncumulative, and so conclusive that it would probably change
the result on retrial. See People v. Molstad, 101 Ill. 2d 128,
134 (1984), quoting People v. Baker, 16 Ill. 2d 364, 374
(1959). The defendant has not provided evidence of his actual innocence,
instead asserting that DNA testing would provide such evidence.
Accordingly, the defendant raises the issue of whether DNA testing can
be granted as post-conviction relief when it was unavailable at the time
of his trial. The defendant contends that under either the fourteenth
amendment of the United States Constitution or section 116-3, he may
obtain the Vitullo kit for testing. We need not reach the constitutional
issue, however, because section 116-3 provides an answer to the
defendant's request. See People v. Dunn, 306 Ill. App. 3d 75,
Although section 116-3 was not in effect at the time
the defendant filed his amended petition, it was in effect when the
trial court entered its order. Section 116-3 provides:
"(a) A defendant may make a motion before the trial
court that entered the judgment of conviction in his or her case for the
performance of fingerprint or forensic DNA testing on evidence that was
secured in relation to the trial which resulted in his or her conviction,
but which was not subject to the testing which is now requested because
the technology for the testing was not available at the time of trial.
Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case
(1) identity was the issue in the trial which
resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not been
substituted, tampered with, replaced, or altered in any material aspect.
(c) The trial court shall allow the testing under
reasonable conditions designed to protect the State's interests in the
integrity of the evidence and the testing process upon a determination
(1) the result of the testing has the scientific
potential to produce new, noncumulative evidence materially relevant to
the defendant's assertion of actual innocence;
(2) the testing requested employs a scientific method
generally accepted within the relevant scientific community." 725 ILCS
5/116-3 (West 1998).
Thus, in order to present a prima facie case
for forensic testing, the defendant must show that identity was the
central issue at trial and that the evidence to be tested was subject to
sufficiently secure chain of custody. The trial court
then must determine whether this testing will potentially produce new,
noncumulative evidence that is materially relevant to the defendant's
We note that the State, by arguing before this court
that the defendant is not entitled to DNA testing of the Vitullo kit
under section 116-3, is attempting to argue an issue it conceded before
the trial court. In a February 16, 1996, hearing on the defendant's
motions to produce the Vitullo kit and to obtain expert witness funds,
the assistant State's Attorney stated that the Vitullo kit was never
tested at the time of the defendant's trial because the State never
found any evidence to test. The assistant State's Attorney added, "If
seminal fluid was there, we would be more than happy to say go ahead and
test it because we are confident that it would prove that Mr. Johnson
was the donor." In the December 3, 1997, hearing on the State's motion
to dismiss the defendant's petition, the assistant State's Attorney,
conceding that DNA testing was not available to the defendant at the
time of his 1984 trial, advised the trial court:
"[I]f we want to set part of this case over till the
1st of the year in order for the State to do D.N.A. testing, I have no
objection to that part of it. I would ask that we do it that way. We are
close enough to the 1st of the year. I can't see paying experts to do
that when the State Police Crime Lab will do it for free January 1st."
Even if the State did not waive its current argument,
we conclude that the defendant's petition made a prima facie
case for DNA testing. The defendant has shown that identity was the
central issue at trial. The defendant also has shown that the Vitullo
kit was subject to a sufficiently secure chain of custody. Though the
State contends that the defendant has presented no evidence of the kit's
location since his 1984 trial, such evidence would not be available to
the defendant. The Vitullo kit, as a piece of real evidence admitted at
trial, would have remained in the custody of the circuit court clerk
after the defendant's conviction.
The State further contends that a DNA test on the
Vitullo kit does not have the potential to produce materially relevant
evidence. We recently construed the term "materially relevant" in
People v. Savory, 197 Ill. 2d 203 (2001). In Savory, the
defendant was convicted of two murders in 1977. The appellate court held
that the defendant's confession was inadmissible, reversed the
convictions, and remanded for a new trial. At the defendant's second
trial, the State presented significant evidence of the defendant's guilt,
including a pair of the defendant's pants with a bloodstain whose type
matched that of one of the victims. The defendant was again convicted of
these murders in 1981. The appellate court affirmed the convictions. The
defendant's post-conviction and habeas corpus petitions were
denied, and in 1998, the defendant filed a motion for forensic testing
under section 116-3. The defendant alleged that he did not commit the
murders and that DNA testing would reveal the blood on his pants did not
match that of one of the victims. The trial court denied this motion,
concluding that favorable test results would not materially advance the
defendant's actual-innocence claim. Even if the blood on the defendant's
pants did not belong to the victim, the State's case would not be
affected. The appellate court affirmed on different grounds, holding
that the remedy under section 116-3 is available only in cases where a
favorable test result would, by itself, completely vindicate the
After reviewing the language of section 116-3, we
rejected the appellate court's restrictive reading of the term "materially
relevant." Savory, 197 Ill. 2d at 213. Instead, we held that
evidence which is "materially relevant" to a defendant's actual-innocence
claim need not, standing alone, exonerate the defendant; rather, it must
tend to "significantly advance" his claim of actual innocence.
Savory, 197 Ill. 2d at 213. We stated, "if the legislature had
intended to limit application of the statute to the instances in which a
test result favorable to the defendant would, standing alone, lead to
his complete vindication, it would have chosen a different way of
expressing the statutory requirements." Savory, 197 Ill. 2d at
213; accord People v. Hockenberry, 316 Ill. App. 3d 752, 758-59
(2000) ("the application of the statute is not limited to those
situations where additional scientific testing would result in total
vindication"); People v. Rokita, 316 Ill. App. 3d 292, 301-02
(2000) ("the plain and unambiguous language [of section 116-3] evinces
no legislative intent to limit the use of scientific testing only to
situations where the testing will result in total vindication or has the
potential to exonerate the defendant").
We held that the determination of whether the
forensic evidence is "materially relevant" to the defendant's actual-innocence
claim requires an evaluation of the evidence introduced at trial, as
well as the evidence the defendant seeks to test. Savory, 197
Ill. 2d at 214. After reviewing the record, we found that testimony
about the source of the bloodstain, which the State did not present
until rebuttal argument, was only a minor part of its strong evidence
against the defendant. Savory, 197 Ill. 2d at 215. "Under these
circumstances, a test result favorable to defendant would not
significantly advance his claim of actual innocence, but would only
exclude one relatively minor item from the evidence of guilt marshaled
against him by the State." Savory, 197 Ill. 2d at 215. See
People v. Urioste, 316 Ill. App. 3d 307, 312 (2000) ("had the
legislature intended the overwhelming nature of other evidence to be a
factor in granting a motion filed pursuant to section 116-3, it would
have said so").
Unlike evidence about the source of the bloodstain in
Savory, evidence about the source of genetic material in the
Vitullo kit was never presented at trial. That is, the defendant here
does not seek merely to impeach the State's evidence. Instead, he seeks
to present, for the first time, evidence about the genetic identity of
Payne's assailant. Further, unlike the defendant in Savory, the
defendant here never made damning admissions placing himself at the
crime scene. The State presented a strong, but largely circumstantial,
case; the only direct evidence of the defendant's guilt came from
Payne's identification. A favorable result on a DNA test of the Vitullo
kit would significantly advance the defendant's claim that he did not
rape Payne, which, in turn, would significantly advance his claim that
he did not murder Hackett. "If the available DNA evidence is capable of
supporting such determination, there is no valid justification to
withhold such relief if requested on postconviction review." Dunn,
306 Ill. App. 3d at 81. The trial court erred in refusing to allow DNA
testing of any testable genetic material in the Vitullo kit pursuant to
Ineffective Assistance of Trial Counsel William
The defendant contends that his petition made a
substantial showing that he received ineffective assistance of counsel
from Swano. In the introduction to his petition, the defendant charged:
"Milton Johnson had the extreme misfortune of placing
his trust in a drug-abusing, corrupt, unethical, and incompetent 'attorney'-a
man who is now a convicted felon and who has repeatedly testified to
bribing judges, witnesses, and otherwise fixing murder cases (as opposed
to providing effective ethical assistance of counsel). The attorney,
William Swano, *** took $15,000 from Milton Johnson's family and
promised them a proper defense for their son; he told them that he would
use some of the money to retain experts to counter the State's case.
Swano, however, did no investigation into either trial evidence or
mitigation, presented no expert rebuttal evidence, and based his defense
primarily on material that was ultimately not allowed into evidence."
The defendant's petition provided specifics. First,
the defendant asserted that Swano should not have entered his appearance
because the trial court refused to grant him sufficient time to prepare
for trial and sentencing and because he was operating under a conflict
of interest due to personal and financial problems. Second, the
defendant asserted that Swano was otherwise ineffective in numerous ways:
(1) he lied to the trial court about his trial preparation while
attempting to obtain continuances on June 25 and July 16, 1984; (2) he
failed to review the discovery material tendered by the State; (3) he
failed to interview prosecution witness Shoemaker before trial and
failed to introduce available evidence in support a motion in limine to
bar her testimony; (4) he failed to investigate the police discovery of
the Great America receipt in the assailant's truck; (5) he failed to
interview parole officers who would have provided testimony in support
of a motion to quash the defendant's arrest; (6) he failed to engage
expert forensic witnesses to examine the rape kit and the fiber evidence
and to debunk the State's Neutron Activation Analysis (NAA) evidence,
and he failed to file a motion to bar NAA evidence; (7) he failed to
present available evidence in support of a motion in limine to
bar Payne's in-court identification; (8) he failed to file a motion to
bar Payne's testimony based on hypnosis; and (9) he failed to litigate
properly the defendant's post-trial motion. Third, the defendant
asserted that Swano failed to prepare or investigate aggravation and
The defendant's ineffective-assistance claims against
Swano can be distilled into a single contention. The defendant argues
that Swano's mounting personal problems led him to neglect the
defendant's case while attempting to keep the defendant's fee. As the
defendant states in his petition: "Once in the case, Swano's concern
became avoiding the ire of the court and any situation where his
withdrawal (and refund of unearned money already deposited in his own
account ***) might be ordered or demanded." Swano's lack of preparation
infected the defendant's entire trial and sentencing proceedings. The
adversarial system broke down, and the defendant was denied effective
assistance of trial counsel. Because the basis for this contention-Swano's
personal problems-is dehors the trial record, this claim is not
forfeited. People v. Orange, 168 Ill. 2d 138, 149 (1995).
Initially, we note that the defendant characterizes
Swano's conduct as a conflict of interest, arguing that Swano's
pecuniary obligations outweighed his ethical obligations to the
defendant. We reject this argument: such conflict-of-interest claims
must be analyzed as claims of ineffective assistance of counsel. See
People v. Titone, 151 Ill. 2d 19, 31-32 (1992). Claims of
ineffective assistance of counsel are analyzed under the two-prong,
performance-prejudice test established in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.
Albanese, 104 Ill. 2d 504, 526-27 (1984). Under Strickland,
a defendant must prove that defense counsel's performance fell below an
objective standard of reasonableness and that this substandard
performance prejudiced the defendant by creating a reasonable
probability that, but for counsel's errors, the trial result would have
been different. People v. Alvine, 173 Ill. 2d 273, 293 (1996).
A reasonable probability is a probability sufficient to undermine
confidence in the result of the trial-that is, to indicate that defense
counsel's deficient performance rendered the result of the trial
unreliable or the proceeding fundamentally unfair. Enis, 194
Ill. 2d at 376. Unless the defendant makes both showings, we cannot
conclude that his conviction or death sentence resulted from a breakdown
of the adversarial process. See People v. Munson, 171 Ill. 2d
158, 184 (1996).
On June 19, 1991, almost seven years
after the defendant's conviction, Swano was indicted on federal
racketeering charges relating to his representation of various gang
members. The indictment specified that Swano repeatedly bribed judges,
presented perjured evidence, and received cocaine in exchange for his
legal services. Swano agreed to cooperate with federal authorities and
was reindicted for explicit judicial corruption between 1980 and 1990.
He pleaded guilty and is currently incarcerated.
The defendant's post-conviction attorney summarized
Swano's testimony in the trial of former Cook County Circuit Judge
Thomas Maloney. See generally United States v. Maloney, 71 F.3d
645, 650-52 (7th Cir. 1995). According to the defendant's attorney,
Swano's testimony established that in 1984, while representing the
defendant in this case, Swano was engaged in a demanding law practice,
was using drugs, was defending foreclosure proceedings on various
properties, and was forced to file personal bankruptcy. In his testimony,
Swano stated, "I did illegal criminal activities [from 1975 though
1990]. I was an unethical lawyer. *** Part of the unethical part of what
I did was lie." Lies, according to the defendant, were a serious problem
in this case.
In his first appearance before the trial court on
June 1, 1984, Swano asked for a continuance. He indicated to the trial
court that he would not be prepared for trial scheduled the next day
because he had received no police reports and no discovery, and he had
interviewed the defendant for only one hour. The trial court reluctantly
reset the trial date to July 1, 1984. Swano vowed to prepare diligently
the defendant's case.
On June 25, 1984, Swano presented a motion for a
continuance. Swano stated that he and co-counsel had made this case
their priority, but had not completed their review of over 5,000 pages
of discovery. Swano mentioned that he intended to hire a forensic fiber
expert to review the report of the State's fiber expert. He also
asserted, "There are hundreds of other pages of scientific evidence,
specific ballistics, fingerprints, hair, blood, other types of evidence
that has [sic] to be digested by the Defense and has [sic]
to explored to be retained by the Defense ***." Denying a continuance,
in Swano's words, would subject the defendant to "an unfair, ill-prepared,
ineffective assistance of counsel." Swano also told the court that he
had interviewed approximately 10 witnesses since he entered his
appearance. When asked by the court whether he had hired his forensic
scientist yet, Swano answered, "He apparently was out of town last week,
and I have not even personally spoken with him. It's not one forensic
person, Judge. There are many experts to be retained. *** I'm not sure
[how many] at this time. I have to interview the State forensic people
to determine what their testimony will be." When asked by the court what
the defense had done in the last 30 days, Swano answered:
"[W]e have been collating, organizing, researching
all the material received as well as the continued discovery that we
receive in our office every day.
Every day I get another piece of discovery, another
piece of police reports in my office, and what we have been doing is
organizing the case and putting it together to see what we are up
The trial court granted a continuance until July 23,
On July 16, 1984, Swano presented another motion for
a continuance. In support of this motion, Swano stated:
"Two weeks ago, approximately two weeks ago, this
Court on a similar motion granted us a two week continuance.
Since that time, myself, [co-counsel], [a student law
clerk] and other persons associated with the defense of this trial, have
worked diligently to go through the voluminous material that we had
received from the Public Defender's office, and also to digest documents
that we have received during that time from the State's Attorney's
We have interviewed approximately forty to fifty
witnesses in the last two weeks and have made every diligent effort [ ]
[w]e feel necessary to defend Mr. Johnson and prepare.
At this point in time, it is-it is our contention
that we need more time. And I can't specifically point to the things
that have to be done, because there's a lot of things that have to be
There's more witnesses to interview. There's physical
evidence that has yet to have been seen by the staff.
There is further discovery matters that have to be
resolved between [State's Attorney's office representatives] and our
There is a lot more research to be done for issues
that we have identified, that willcome [sic] up during the
course of the trial.
Quite frankly, what we are asking for is some more
time to-to more adequately prepare, more time to more adequately
research the various legal issues involved in this case."
The trial court denied this motion, and the
defendant's case proceeded to trial 10 days later.
According to the defendant, Swano lied when he told
the court on June 25 that he had interviewed 10 witnesses because, at
that time, he had not yet interviewed Payne, Shoemaker, the defendant's
family, or police officers involved in the investigation of these crimes.
Further, Swano admitted that he had not interviewed any forensic experts.
According to the defendant, Swano also lied when he told the court on
July 16 that he had interviewed 40 to 50 witnesses, because only a full
investigation of trial and sentencing evidence would have uncovered this
number of witnesses. Swano's statement defies credibility in light of
the fact that he presented no mitigation evidence at sentencing.
The defendant's allegations concerning Swano's lies
about his lack of preparation are more troubling in light of his answers
to the defendant's post-conviction interrogatories. In response to the
defendant's interrogatory asking whether Swano hired an expert to
evaluate the fiber evidence in this case, Swano answered, "Don't
remember." In response to the defendant's interrogatories asking whether
Swano hired experts to evaluate the bullet composition, NAA, or
ballistic evidence in this case, Swano answered no. Swano also admitted
that he hired no mitigating or sentencing experts in this case. When
asked whether he received any fiber, bullet composition, NAA, or
ballistic evidence reports from the Will County public defender when he
entered this case, Swano stated, "Don't remember. I do remember that
when I accepted this case the P.D.'s office had not prepared the matter
for trial and the discovery process was just beginning." When asked
whether he received any investigation reports, witness interviews, or
evidence evaluation from the public defender, Swano stated, "Don't
remember anything other than some discovery." He added that, to his
knowledge, the public defender "turned over everything they had."
According to Swano, the only mitigation witness whom he remembered
interviewing was the defendant's father. In an affidavit, the
defendant's post-conviction attorney described a November 22, 1997,
meeting with Swano, in which Swano also stated that "he definitely did
not hire or engage any experts in the instant case and also did not
recall consulting any experts, and that he thought he intended to hire a
NAA expert but did not have enough time."
Swano's conduct previously has come before this court
in an unrelated case. In People v. Smith, 177 Ill. 2d 53
(1997), a capital defendant asserted that she received ineffective
assistance of counsel because Swano's knowledge of an impending federal
indictment on racketeering charges prevented him from giving full
attention to her trial. Relying upon People v. Williams, 93 Ill.
2d 309 (1982), the defendant asked for a new trial. In Williams,
a capital defendant alleged that he received ineffective assistance of
trial counsel because his attorney was defending himself against a
disciplinary complaint at the same time he was representing the
defendant. Considering the unique circumstances of this capital case, we
declined to apply established tests for claims of ineffective assistance
of trial counsel and, instead, ordered a new trial in "the interests of
justice." Williams, 93 Ill. 2d at 325.
Holding that the "unique circumstances" in
Williams were not present in Smith, we rejected the
defendant's argument that Swano's misconduct entitled her to a new trial.
Smith, 177 Ill. 2d at 88-89 (citing People v. Franklin,
167 Ill. 2d 1, 18 (1995), and People v. Szabo, 144 Ill. 2d 525,
529 (1991)). Swano did not appear before the ARDC during the defendant's
trial, and he was not indicted until four months after his
representation of the defendant ended. Smith, 177 Ill. 2d at
89. Further, Swano represented only the defendant in this case, and he
was assisted by another attorney. Smith, 177 Ill. 2d at 90.
Finally, the defendant pointed only to a single instance at trial-Swano's
failure to cross-examine a prosecution witness about inducements to
testify-when she purportedly received ineffective assistance of counsel.
Smith, 177 Ill. 2d at 90. Instead, we held that Strickland
governed the defendant's ineffective-assistance claims. Smith,
177 Ill. 2d at 90. Analyzing this claim under Strickland, we
concluded that Swano's decision not to cross-examine was a strategic
decision, insulated from constitutional attack. Smith, 177 Ill.
2d at 93.
Unlike Swano's failure to cross-examine a prosecution
witness in Smith, Swano's alleged failures in this case are
much more pervasive. The defendant claims that Swano failed to interview
witnesses, failed to review the discovery material which he received
from the State, and failed to investigate and present crucial evidence
at trial and sentencing. The defendant also claims, and Swano concedes,
that he failed to hire any expert forensic witnesses. These allegations
against Swano do not involve mere strategic decisions; they involve
decisions which go to the core of the defendant's constitutional
guarantee of effective assistance at trial. The defendant's allegations
make a substantial showing that Swano's performance was substandard.
Further, the defendant's allegations make a
substantial showing that this substandard performance caused prejudice.
As we have noted, the State presented a strong, but largely
circumstantial, case against the defendant. Swano's defense was limited
to attacking the identification evidence and to filing motions in
limine to exclude portions of the State's evidence. Because Swano
was unprepared, he never subjected the State's case to meaningful
adversarial testing. Additional preparation by Swano, especially with
regard to expert forensic testimony, may have yielded a different result.
We conclude that the defendant made a substantial
showing that Swano's representation so undermined the proper function of
the adversarial system that the defendant's trial cannot be relied upon
to have produced a just result. Because the defendant's allegations meet
the benchmark for Strickland claims, these allegations are
consequently subject to further investigation. See 725 ILCS 5/122-6 (West
1998). The trial court erred in dismissing the defendant's ineffective-assistance
claims against Swano without an evidentiary hearing.
Ineffective Assistance of Appellate Counsel
The defendant contends that his attorney in his
direct appeal was ineffective for failing to raise several issues: (1)
whether the defendant was denied due process because the trial court
refused to grant sufficient time for Swano to prepare the defendant's
case for trial and sentencing; (2) whether the defendant's appointed
attorneys were ineffective for failing to remove Judge Orenic by
automatic substitution and failing to prepare the defendant's case for
trial; and (3) whether Swano was ineffective for a variety of reasons,
all related to his personal problems and lack of trial preparation.
The Strickland test applies to claims of
ineffective appellate counsel. People v. Caballero, 126 Ill. 2d
248, 269-70 (1989). A defendant who claims that appellate counsel was
ineffective must show that the failure to raise an issue on appeal was
objectively unreasonable and this decision prejudiced the defendant.
Enis, 194 Ill. 2d at 377; People v. Flores, 153 Ill. 2d
264, 283 (1992). Normally, appellate counsel's choices concerning which
issues to pursue are entitled to substantial deference. People v.
Mack, 167 Ill. 2d 525, 532-33 (1995). Appellate counsel need not
brief every conceivable issue and may refrain from developing
nonmeritorious issues without violating Strickland (People
v. Simms, 192 Ill. 2d 348, 362 (2000)), because the defendant
suffered no prejudice unless the underlying issue is meritorious (People
v. Easley, 192 Ill. 2d 307, 329 (2000)). Consequently, the
prejudice inquiry requires us to examine the merits of the claims not
raised by appellate counsel.
The defendant's first claim is nonmeritorious.
Granting a continuance lies within the sound discretion of the trial
court. People v. Williams, 173 Ill. 2d 48, 92 (1996);
People v. Sanchez, 115 Ill. 2d 238, 262 (1986). On a charge of
capital murder, the defendant should be given every opportunity to
investigate witnesses and prepare his defense. See People v. Crump,
5 Ill. 2d 251, 263 (1955) (denying a continuance was an abuse of
discretion where the defense had a mere 10 to 11 days to interview 48
witnesses). However, "[j]udicial patience need not be infinite" (People
v. Williams, 92 Ill. 2d 109, 116 (1982)), and the defendant's right
to counsel of his choice cannot be employed as a shield against an
inevitable trial (People v. Solomon, 24 Ill. 2d 586, 590
(1962)). See People v. West, 137 Ill. 2d 558, 588 (1990).
Here, Swano entered his appearance on the eve of
trial, and the trial court granted three continuances, giving Swano 55
days to prepare for trial. This amount of time is not exceedingly long;
similarly, it is not exceedingly short, considering that, prior to
Swano's appearance, the public defender had more than three months to
prepare the defendant's case. The trial court did not abuse its
discretion, and appellate counsel was not ineffective for failing to
raise this issue.
The defendant's second claim is also nonmeritorious.
Strategic decisions, such as pretrial motion practice, are insulated
from Strickland challenges. See People v. Pecoraro,
144 Ill. 2d 1, 13 (1991); People v. Bryant, 128 Ill. 2d 448,
459 (1989). Here, the defendant's substitution of judge motion may have
been handled differently, but we cannot say the public defender's
decisions constituted substandard representation. Additionally, after
reviewing the record, we cannot say the public defender failed to
prepare the defendant's case. Appellate counsel was not ineffective for
failing to raise the issue of appointed counsel's effectiveness.
Finally, the issues related to Swano's personal
problems and lack of trial preparation were outside the record and not
fully developed when the defendant's case was on direct appeal. The
defendant's appellate counsel was not ineffective for failing to raise
claims that did not yet exist.
Finally, the defendant asserts that the trial court
abused its discretion when it failed to allow discovery on the
allegations in his post-conviction petition.
The defendant initially made numerous discovery
requests. The trial court denied the majority of these requests, but
entered an order to have Swano transported from federal prison in
Greenville, Illinois, to the Will County courthouse, giving the
defendant's attorney an opportunity to speak with him. Once Swano
arrived in Joliet, however, he refused to be deposed and insisted that
his cooperation would be limited to answering written interrogatories.
Swano's interrogatory answers were summarily brief, and, on the final
page of the defendant's interrogatories, Swano added, "I refuse to
answer any other questions relating to my personal case or conduct other
than matters regarding Milton Johnson and my role as his attorney."
A trial court has inherent discretionary authority to
order discovery in post-conviction proceedings. See People ex rel.
Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988); People v.
Rose, 48 Ill. 2d 300, 302 (1971). A court must exercise this
authority with caution, however, because a defendant may attempt to
divert attention away from constitutional issues which escaped earlier
review by requesting discovery. People v. Hickey, No. 87286 (September
27, 2001); Enis, 194 Ill. 2d at 415. Accordingly, the trial
court should allow discovery only if the defendant has shown "good
cause," considering the issues presented in the petition, the scope of
the requested discovery, the length of time between the conviction and
the post-conviction proceeding, the burden of discovery on the State and
on any witnesses, and the availability of the evidence through other
sources. Daley, 123 Ill. 2d at 183-84; see People v. Fair,
193 Ill. 2d 256, 264-65 (2000). We will reverse a trial court's denial
of a post-conviction discovery request only for an abuse of discretion.
Fair, 193 Ill. 2d at 265. A trial court does not abuse its
discretion in denying a discovery request which ranges beyond the
limited scope of a post-conviction proceeding and amounts to a "fishing
expedition." Enis, 194 Ill. 2d at 415.
In People v. Fair, 193 Ill. 2d 256 (2000),
the defendant was convicted of two murders and sentenced to death.
Following his conviction, the defendant learned that the judge who
presided over his trial had engaged in an extensive pattern of judicial
corruption in the time before and after the trial. We held that the
defendant was entitled to discovery of evidence obtained by the Cook
County State's Attorney's office in its investigation of the judge in
order to establish a nexus between the judge's corruption and the
defendant's trial. Fair, 193 Ill. 2d at 267. Because the judge
had pleaded guilty, all the evidence concerning his criminal conduct
remained in the State's control. Fair, 193 Ill. 2d at 266. We
reasoned the defendant could not establish a nexus between this conduct
and his conviction without access to that evidence. Fair, 193
Ill. 2d at 266. See also Bracy v. Gramley, 520 U.S. 899, 908,
138 L. Ed. 2d 97, 106, 117 S. Ct. 1793, 1799 (1997) (holding that
allegations of judicial corruption against the judge who presided over
the defendant's trial established "good cause" for the defendant's
discovery request); cf. 188 Ill. 2d R. 416(e) ("Discovery
Depositions in Capital Cases").
Like the evidence in Fair, the evidence of
Swano's misconduct was unknown during the defendant's trial. Because
Swano refused to cooperate with the defendant, the trial court abused
its discretion by refusing to order his evidence deposition.
The trial court erred in refusing to allow DNA
testing of the Vitullo kit pursuant to section 116-3. The trial court
also erred in dismissing without an evidentiary hearing the defendant's
post-conviction claim that he received ineffective assistance from
retained trial counsel William Swano. Finally, the trial court abused
its discretion in refusing to order Swano's evidence deposition. The
trial court properly dismissed the defendant's other post-conviction
claims. For these reasons, we affirm in part, reverse in part, and
remand to the circuit court for further proceedings.
Affirmed in part and
reversed in part;
CHIEF JUSTICE HARRISON, specially concurring:
I agree with the majority's analysis and its
conclusion that the circuit court erred in refusing to allow DNA testing
of the Vitullo kit. I also agree that the circuit court abused its
discretion when it refused to order Swano's evidence deposition and that
the court should not have dismissed, without an evidentiary hearing,
Johnson's claim that Swano had provided ineffective assistance of
I write separately because I would go beyond the
majority's disposition and hold that Johnson is entitled to immediate
post-conviction relief. Regardless of the outcome of any further
proceedings on remand, Johnson's convictions and sentences cannot stand.
That is so because Johnson was tried, convicted and sentenced under a
death penalty law that violates the eighth and fourteenth amendments to
the United States Constitution (U.S. Const., amends. VIII, XIV) and
article I, section 2, of the Illinois Constitution (Ill. Const. 1970,
art. I, §2). People v. Bull, 185 Ill. 2d 179, 225-29 (1998) (Harrison,
J., concurring in part and dissenting in part).
Our court has now adopted a comprehensive set of new
rules governing the conduct of cases in which the State is seeking the
death penalty. For the reasons set forth in my dissenting opinion in
People v. Hickey, No. 87286, slip op. at 35 (September 27, 2001) (Harrison,
C.J., dissenting), the procedures contained in those rules are
indispensable for achieving an accurate determination of innocence or
guilt and are applicable to all capital cases now coming before us on
review. Whether the new rules will be sufficient to place this state's
capital punishment system within the tolerances permitted by the state
and federal constitutions is a question we cannot yet answer. It is
clear, however, that no proceeding conducted without the benefit of
those rules can be deemed reliable. I would therefore reverse the
circuit court's judgment in full, set aside Johnson's convictions and
sentences, and order that he be granted a new trial.
JUSTICE KILBRIDE, concurring in part and dissenting
I concur in part with the majority's judgment
concerning the lack of DNA testing of the Vitullo kit, the failure to
allow Swano's evidence deposition, and the improper dismissal of
Johnson's ineffective assistance of counsel claim. Nevertheless, I agree
with Chief Justice Harrison that defendant's convictions and sentence
should be set aside because the trial proceedings were not conducted in
accordance with the new supreme court rules governing capital cases. As
I stated in my dissents in People v. Hickey, No. 87286, slip op. at 39 (September
27, 2001) (Kilbride, J., dissenting), and People v. Simpson, No. 85084,
slip op. at 35 (September 27, 2001) (Kilbride, J., dissenting), I
believe that the new rules should be applied retroactively. See People
v. Caballero, 179 Ill. 2d 205, 220-21 (1997). Thus, this cause should be
remanded for a new trial conducted in compliance with the new rules.