Defendant was convicted, after jury trial, of 1 count of 1st degree murder, 1 count of aggravated battery, and 2 counts of mob action. Defendant's brother had been charged as a codefendant with the same set of crimes, but his trial was to be held separately. During Defendant's trial, defense counsel announced its intent to call Defendant's brother as a witness, but brother invoked his 5th amendment rights and refused to testify. Evidence offered in brother's affidavit, which stated that brother acted alone, goes to the ultimate issue of who the shooter was, and is of such a conclusive character that it would probably change the result on retrial. Brother's affidavit was executed and offered 2 years after brother was convicted and sentenced for the same crimes. As no amount of diligence could have forced brother to waive his 5th amendment rights, the affidavit qualified as newly discovered. Defendant's postconviction petition and supporting affidavit from his brother adequately alleged a claim of actual innocence, entitling him to appointment of counsel at the 2nd stage. (DAUGHERITY, concurring; SCHMIDT, dissenting.)
Illinois Appellate Court
Criminal Court
Postconviction Petitions