2019 IL App (3d) 160603
Ill. App. Ct.2019Background
- Defendant Bernon Howery was convicted of multiple murders and aggravated arson after a 1989 fire that killed four children; the State’s expert (DeHann) testified two separate, deliberately set fires occurred; defense expert (Neuf) disputed that and linked the fires.
- While serving a life sentence, Howery sought leave to file a successive postconviction petition alleging developments in fire/arson science (e.g., NFPA 921) undermined the State expert’s testimony and supported actual innocence.
- Howery submitted a pro se proposed successive petition but did not specify which portions of the State expert’s testimony were unreliable, how fire science had changed, or supply documentary support (e.g., NFPA 921 was not attached).
- The circuit court denied leave to file the successive petition for failing to allege prejudice or actual innocence and characterized the filings as speculative/fishing expeditions; a subsequent motion to reconsider and a free-standing discovery motion (seeking NFPA 921) were also denied.
- On appeal, Howery did not seek reversal of the denial of leave but requested remand for the limited purpose of having the trial court exercise discretion on his late discovery request; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Howery) | Held |
|---|---|---|---|
| Whether Howery’s motion for leave to file a successive postconviction petition alleged a colorable claim of actual innocence or cause and prejudice | The motion failed to identify unreliable evidence, explain scientific changes, or provide documentation; thus it did not meet either standard | Changes in fire/arson science (as reflected in NFPA 921) undermine the State expert’s testimony and show actual innocence or satisfy cause and prejudice | Denied: pleadings were speculative, lacked specificity and documentary support; did not satisfy cause/prejudice or actual innocence standards |
| Whether the circuit court abused discretion by denying Howery’s motion for discovery (copy of NFPA 921) | Discovery was procedurally untimely and the court properly declined to consider a belated discovery request after denial of leave | The court should have exercised its inherent authority to allow postconviction discovery and remand to let the court rule on the request | Denied: discovery motion was untimely and procedurally improper after denial of leave; remand unnecessary because appellate counsel has NFPA 921 |
Key Cases Cited
- People v. Pitsonbarger, 205 Ill. 2d 444 (2002) (standards for leave to file a successive postconviction petition: cause-and-prejudice or actual-innocence routes)
- People v. Tidwell, 236 Ill. 2d 150 (2010) (defendant must submit documentary support enabling a court to evaluate leave for a successive petition)
- People v. Blair, 215 Ill. 2d 427 (2005) (procedural options after denial of leave: motion to reconsider or appeal)
- People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175 (1988) (circuit court’s inherent authority to order discovery in postconviction proceedings for good cause)
- People v. Fair, 193 Ill. 2d 256 (2000) (postconviction discovery principles and court authority)
- People v. Anderson, 375 Ill. App. 3d 121 (2006) (appellate court cannot consider evidence first presented on appeal that was not attached at trial-court level)
- Merchants Bank v. Roberts, 292 Ill. App. 3d 925 (1997) (purpose of a motion to reconsider includes newly discovered evidence, change in law, or trial-court errors)
- People v. Teran, 376 Ill. App. 3d 1 (2007) (clarifies scope of motion to reconsider)