People v. Bolden, 2014 IL App (1st) 123527 (June 18, 2014) Cook Co., 3d Div. Reversed and remanded.
(Modified upon denial of rehearing 8/6/14.). Syllabus: Where defendant’s postconviction petition challenging his conviction for two murders was dismissed without an evidentiary hearing, the appellate court reversed the dismissal and remanded for an evidentiary hearing, since defendant made a substantial showing that he was prejudiced by his trial counsel’s unprofessional errors, including his failure to move for the dismissal of the indictment after two firearms defense counsel requested in discovery were destroyed by the police and his failure to interview three witnesses in connection with a possible alibi, especially when there was a reasonable likelihood that a better result could have been achieved absent those errors.

The defendant here made two ineffective assistance claims. First, that trial counsel erred by not moving to dismiss the charges based on the State’s discovery violation. The State destroyed guns involved in the case after the defendant requested access to them in his discovery motion, and the defendant argued that he was prejudiced by his inability to send the guns to a lab to have them independently tested after they were destroyed. The Bolden court held that counsel’s performance was deficient under Strickland on this allegation because there would have been no strategic purpose in not filing a motion for sanctions. Nevertheless, the court held that the defendant did not satisfy the “prejudice” prong of Strickland because, essentially, the results from the tests that could have been performed on the guns would only be speculative as far as their probative value, so the case likely would not have been dismissed because the depravation to the defendant would not be great enough to warrant dismissal of the charges.

The second issue that the defendant raised–and actually prevailed on here–was a failure to investigate claim. These claims are quite common in post-conviction petitions. Usually the defendant alleges that he told his attorney to talk to so-and-so, and his attorney failed to do so and then failed to call that person as a witness. This type of claim usually fails, because counsel’s failure to call the witness is usually chalked up to trial strategy and the defendant is thereafter unable to meet the Strickland test. But that is exactly what the defendant was able to do in this case.

The defendant claimed that he told his attorney to talk to an alibi witness and two other witnesses who corroborated the alibi witness’ story. In support of his petition, the defendant “presented a form on which his trial counsel submitted a written request for an investigator working for the public defender to contact Vondell Goins, Octavia Jackson, and Todd Henderson. Trial counsel supplied phone numbers, addresses, and dates to contact the witnesses. The forms show that an investigator wrote “oral response has been given” to trial counsel.”¶ 31. The defendant “also attached to the petition affidavits from Goins, Jackson and Henderson. Goins swore that she spoke to police in J&J after the shooting, but no investigator or attorney contacted her between the night of the murders in 1994 and 2011, when an investigator working on the postconviction petition contacted her.” ¶ 32. The other affidavits were similar. Based on counsel’s failure to investigate these witnesses, the court held that Bolden made a substantial showing of a reasonable likelihood that he would have achieved a better result but for trial counsel’s errors. ¶ 51.

There are some exceptional things about this case that made it a winning case. This case underscores the importance of investigators. The original investigator was tasked with contacting these witnesses. The defendant was able to provide evidence (which itself is unusual) that he had asked the investigator (through counsel) to contact these witnesses. Because the investigator was acting as trial counsel’s agent, trial counsel ultimately became responsible for the investigator’s failure to contact these witnesses. But while the first investigator caused the error, the second investigator (who was working with post-conviction counsel and later contacted these witnesses) was able to prove the error of the first. The second investigator was really the key to making this claim successful, which demonstrates how invaluable good investigators can be to post-conviction claims that are usually very difficult to prove. The defense team’s investigation in this case was exceptional and it yielded exceptional results.