A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Friday, February 16.

People v. Fair, 2024 IL 128373

By Kerry J. Bryson, Office of the State Appellate Defender

Darrell Fair was arrested for an armed robbery and murder in Chicago in September 1998. He was interrogated at Area 2 and made statements implicating himself and two others. Prior to trial, Fair filed a motion to suppress statements, alleging “physical, mental, and psychological coercion” and denial of counsel, but counsel later withdrew the motion without a hearing. Fair’s inculpatory statement was admitted against him at trial, and he was convicted of murder. At sentencing, Fair told the court he had been chained to a wall and physically abused prior to making his custodial statement. He was sentenced to 50 years of imprisonment.

On direct appeal, and again in post-conviction proceedings, Fair alleged ineffective assistance of trial counsel for failing to proceed on the motion to suppress or object to admission of his statements at trial. Both were unsuccessful.

Fair later brought a claim of torture before the Illinois Torture Inquiry and Relief Commission (TIRC) Act (775 ILCS 40/1, et seq.) in May 2011, alleging that during his interrogation he was kicked, threatened with being shot, kept awake, chained to a wall, denied asthma medication and food, and denied a lawyer for a period lasting more than 30 hours. Ultimately, Fair said, he simply repeated what the police told him to say, but he refused to sign the written statement prepared by the prosecutor following his interrogation. 

TIRC found sufficient credible evidence of torture to refer the case for judicial review. The circuit court then conducted a hearing, which included testimony from Fair, his mother, and the prosecutor. The State was unable to secure the testimony of interrogating officer, Detective Michael McDermott, whom Fair alleged had committed acts of torture. The court received evidence of McDermott’s history of dishonesty and allegations of abuse in other cases, however, including threatening suspects with a gun, kicking them, and withholding food, medication, sleep, and counsel from them. The court denied relief, finding Fair failed to provide sufficient evidence of torture where Fair’s account of what had occurred changed over time, and where Fair’s identification of McDermott as one of his interrogators did not come until late in the TIRC proceedings. On the other hand, the court found the prosecutor who recorded the unsigned, written statement to be “extremely” credible.

The appellate court affirmed, but on a different basis. Specifically, the court accepted Fair’s claim that he was kicked by McDermott, but concluded that allegations he was denied sleep, medication, and food were insufficient and that being denied counsel was “not a consequence of torture.” Given the prosecutor’s credible testimony, the court found that the State met its burden to show that Fair’s statements were not the product of torture. The appellate court concluded that TIRC judicial proceedings are limited to consideration of the alleged tortuous conduct and that Fair’s claim that he was denied his right to counsel was not properly before the court in those proceedings.

The Illinois Supreme Court first clarified the standards and burdens applicable to proceedings under the TIRC Act. Specifically, the Court held that under the plain language of the Act, the circuit court must decide whether the petitioner has shown by a preponderance of the evidence that (1) torture occurred and (2) resulted in a confession that was (3) used to obtain a conviction. The circuit court does not assess the voluntariness of the statement or consider whether other constitutional claims are established, as those matters can be raised in proceedings under the Post-Conviction Hearing Act. In reaching this conclusion, the Court specifically overruled People v. Wilson, 2019 IL App (1st) 181486, which had adopted a contrary standard.

The Court also clarified that the standard of review of TIRC judicial proceedings on appeal is whether the circuit court’s decision was manifestly erroneous. The circuit court judge is in a superior position to evaluate credibility because the judge sees and hears witness testimony in person. Accordingly, the court’s determinations will only be reversed if they contain an error that is “clearly evident, plain, and indisputable.”

Next, the Court explained that while TIRC is concerned only with claims of torture, the circuit court must still consider the totality of the circumstances in evaluating such claims. The court’s review is not limited only to acts of physical abuse. Rather, the court should also consider any alleged violations that would not necessarily qualify as torture if viewed alone. Additionally, courts should be mindful of the history of police torture in Chicago that led to creation of the TIRC procedure in analyzing torture claims. 

Applying these standards, the Illinois Supreme Court found that the circuit court did not commit manifest error in denying Fair’s torture claim. The circuit court made credibility determinations after seeing and hearing witness testimony, putting it in a superior position to do so. The Illinois Supreme Court declined to disturb those determinations on the record presented here. Accordingly, the denial of Fair’s TIRC claim was affirmed.

Justice Neville authored a dissent joined by Justice O’Brien. The dissent agreed with the majority’s determination of the applicable standards but would have found manifest error in the circuit court’s findings. The dissent noted that Fair testified to abusive behavior by four detectives over the course of a 30-hour custodial interrogation. None of those detectives testified, leaving Fair’s claims unrebutted and unimpeached. The dissent would have drawn a negative inference from the detectives’ failure to come forward to rebut Fair’s claims. Further, records from other cases established that Detective McDermott was a known torturer. Thus, the Court’s finding that Fair was not credible was manifestly erroneous. Additionally, the dissent noted that the prosecutor who did testify was not present during any of the police interrogation and thus was incompetent to testify to whether Fair had been tortured. Likewise, the prosecutor was not a medical professional and could not opine as to whether Fair exhibited signs of having been tortured. The dissent would have found that Fair’s statements were the result of torture, in the form of physical abuse and denial of sleep, food, medication, and counsel, and would have reversed the circuit court and appellate court judgments.