2020 IL App (1st) 170750-U
Ill. App. Ct.2020Background
- Lash was convicted at a 1997 joint bench trial of felony murder (mob action), aggravated discharge of a firearm, and mob action based on testimony that he was present, armed, and driving a van during the events that led to the killing by Joseph Taylor.
- After direct appeal and a later resentencing to 40 years, Lash filed postconviction petitions asserting, among other claims, actual innocence supported by affidavits from co-participants (Derrick, Bellamy, Tolbert, and Joann Davies) claiming Lash was at home with an eye injury when the shooting occurred.
- This court held the affidavits were not cumulative and remanded for a third-stage evidentiary hearing on actual innocence.
- At the evidentiary hearing Lash, Derrick, and Bellamy testified; Lash’s trial counsel (Irvin Frazin) and the prosecutor who took Bellamy’s contemporaneous statement (Kirby) testified for the State; Davies and Tolbert did not testify in person.
- Frazin testified he declined to pursue an alibi because Lash initially told him he was present (but did not shoot) and because Frazin believed Davies would commit perjury; Kirby testified Bellamy’s original signed statement implicated Lash and was reviewed and signed by Bellamy.
- The circuit court found the new witnesses not credible (and Lash self-serving), credited Frazin and Kirby, and denied the postconviction petition; Lash appealed, arguing the court exceeded the remand by admitting privileged/prejudicial testimony from Frazin and that privilege was not waived.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Lash) | Held |
|---|---|---|---|
| Whether the circuit court exceeded the appellate mandate by allowing Frazin to testify at the third-stage hearing | Frazin’s testimony was relevant to rebut Lash’s claim that an alibi existed and why it was not presented; testimony was within the broad remand for an evidentiary hearing | Allowing testimony about trial strategy and lawyer–client communications exceeded the mandate and introduced irrelevant, prejudicial matter | Court: Remand was broad; third-stage courts have wide discretion to hear evidence relevant to actual innocence; Frazin’s testimony was relevant and within the mandate |
| Whether Frazin’s testimony violated the attorney-client privilege | People: Lash opened the door by testifying about communications with Frazin and introducing Davies’s affidavit; subject-matter waiver applies | Lash: He did not waive privilege and Frazin’s disclosures were highly prejudicial | Court: Lash waived privilege by putting communications at issue; subject-matter waiver/completeness doctrine permitted Frazin’s responsive testimony |
| Standing to pursue postconviction review after release from custody/Mandatory Supervised Release (MSR) | People argued standing defeated by release? (court reviewed briefing) | Lash filed petition while in custody then was released before adjudication; argues petition timely filed | Court: Follows line holding timeliness of filing controls; Lash retained standing because petition was filed while in custody |
| Whether new evidence (affidavits) established actual innocence | People: New affidavits were uncredible and contradicted by trial evidence and witness statements; preponderance not met | Lash: Affidavits were newly discovered, noncumulative, and would probably change the result on retrial | Court: Circuit court as factfinder credited State witnesses, found affidavits/unatested testimony not credible, and concluded Lash failed to meet burden; denial affirmed |
Key Cases Cited
- Schlup v. Delo, 513 U.S. 298 (1995) (federal standard: actual-innocence gateway requires new, reliable evidence not presented at trial)
- People v. Sanders, 2016 IL 118123 (Ill. 2016) (elements for newly discovered evidence supporting freestanding actual innocence)
- People v. Coleman, 2013 IL 113307 (Ill. 2013) (third-stage standard: preponderance and trial court’s credibility/weight determinations)
- People v. Edwards, 197 Ill. 2d 239 (Ill. 2001) (first-stage frivolous/patently without merit screening and postconviction framework)
- People v. Gaultney, 174 Ill. 2d 410 (Ill. 1996) (gist-of-a-constitutional-claim standard to advance beyond first stage)
- People v. Ortiz, 235 Ill. 2d 319 (Ill. 2009) (trial-court factual credibility determinations reviewed for manifest error)
- People v. Washington, 171 Ill. 2d 475 (Ill. 1996) (Illinois recognition that freestanding actual innocence is cognizable under state due process)
- People v. Radojcic, 2013 IL 114197 (Ill. 2013) (attorney-client privilege belongs to client; client is sole waiving party)
- Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107 (Ill. 2012) (subject-matter waiver: client’s disclosure as to part of communications waives privilege as to same subject)
- People v. O'Connor, 37 Ill. App. 3d 310 (Ill. App. Ct. 1976) (application of subject-matter waiver in criminal context)