I recently received the following note from my colleague Jeffrey Urdangen, of Northwestern's Bluhm Legal Clinic Center for Criminal Defense:
Some months ago, Josh Tepfer, of the University of Chicago Exoneration Project, asked me if I’d team up with him on a fascinating case where his client had a bona fide claim of having been screwed by the cops in a manner that violated due process. I was happy to co-counsel with Josh, who, as far as I can tell, leads the league, if not the world, in achieving exonerations for his clients. Not surprisingly, that was the outcome in this instance.
Robert Hill was charged with murder and armed robbery for allegedly being the getaway driver following the stick-up of a liquor store in 2005. He was arrested and questioned by police a few days after the incident, and then let go. Two years later he was re-arrested for further interrogation, and as he always had, Robert denied any involvement in the crime. A Sheriff’s officer then made an offer to Robert: if he took and passed a polygraph, police would take him home and he’d be free to live his life. Robert accepted the offer and passed the polygraph. He was released that night, only to be arrested a month later for the third time. This time he was indicted.
Three years later, a hearing was held on defense counsel’s motion to dismiss the indictment. The grounds were that the State violated a non-prosecution agreement when, notwithstanding the police promise, Robert was charged with murder. The motion was denied, the Court agreeing with the State’s argument that, as a matter of law, an assurance like this is not binding unless made by a prosecutor. Four more years later the case proceeded to a bench trial in the Markham courthouse before the same decidedly pro-prosecution judge, Frank Zelezinski. Robert was convicted and sentenced to a term of 70 years imprisonment.
After the opening brief on appeal was filed, the Illinois Supreme Court decided People v. Stapinski, which held that a promise by police, even if unauthorized by prosecutors, is enforceable. That additional authority was provided to the appellate court, which remanded for a hearing on whether “the defendant has established an enforceable cooperation agreement not to arrest or prosecute him …” The circuit judge at this hearing was directed to apply contract law. Lucky for our client, Judge Zelezinski had recently retired and his replacement was Judge Carl B. Boyd.
We were also fortunate that both the interrogation with the lie detector offer and the polygraph session were videotaped. At the hearing, one of Josh’s U of C clinic students, Huiyi Chen (now at Jenner and Block), masterfully cross examined the polygrapher. And my student, Grace Hotz, gave a sparkling summation, deftly interspersing video excerpts. Josh then dismantled the State’s closing argument in his rebuttal.
Several weeks later, reading his careful ruling from the bench, Judge Boyd gave a seminar on the law of contracts, finding the defense had established offer and acceptance. Ruling that we met our burden, the indictment was dismissed and Robert was freed that day after ten years of incarceration.
Congratulations to Jeff and Josh, and their students, in a great victory for collaborative clinical legal education.
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