2024 IL App (1st) 231330-U No. 1-23-1330 Order filed December 31, 2024 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 12787 ) DEMARCUS PORTER, ) Honorable ) Peggy Chiampas, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court. Justices Reyes and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: The judgment of the trial court summarily dismissing defendant’s first-stage petition for postconviction relief is reversed, and the matter is remanded for second- stage proceedings.
¶2 Following a bench trial, the trial court found defendant Demarcus Porter guilty of the
attempt first degree murder of Brian Bedford and sentenced him to a 31-year prison term. No
forensic evidence tied defendant to the crime, no other eyewitnesses testified, and defendant never
made a statement admitting to the shooting. The State’s case relied on the identification testimony No. 1-23-1330
of Bedford, even though his assailant’s face was covered by a t-shirt and he could only see a
horizontal strip of his assailant’s face, including the eyes and the numerical tattoos “seven” and
“two.” Bedford acknowledged that he knew multiple people with that tattoo.
¶3 Following his direct appeal in which we affirmed, defendant filed a petition for
postconviction relief pursuant to the Postconviction Hearing Act (the Act), 725 ILCS 5/122-1 et
seq. (West 2022). That petition claimed that trial counsel provided ineffective assistance by failing
to call an eyewitness testimony expert and failing to move to suppress Bedford’s identification.
The trial court summarily dismissed that petition at the first stage.
¶4 For the reasons that follow, we reverse the judgment of the trial court and remand for
second-stage proceedings. 1
¶5 I. BACKGROUND
¶6 Following a bench trial, defendant was found guilty of six counts of attempt first degree
murder (720 ILCS 5/8-4 (West 2014); 720 ILCS 5/9-1(a)(1) (West 2014)); one count of aggravated
discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2014)); and one count of aggravated battery
(720 ILCS 5/12-3.05(e)(1) (West 2014)). On direct appeal, defendant contended that the evidence
was insufficient to establish his guilt and that trial counsel provided ineffective assistance by not
challenging the admission of recordings of telephone calls that defendant made while in custody.
We affirmed, and we recite the facts from trial relevant to defendant’s instant petition.
¶7 Brian Bedford, who was incarcerated at the time of trial for a conviction for aggravated
unlawful use of a weapon, testified that someone shot him on the morning of June 22, 2014, as he
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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crossed the intersection of 69th Street and Talman Avenue in Chicago, Illinois. The shooter, along
with two other men with guns, emerged from behind a tree. No testimony established that any
words were spoken between any of the individuals. Likewise, no testimony established that the
shooters made any demands of Bedford. One of the armed men simply opened fire from two feet
away. Immediately after being asked whether all three men had guns, the State asked Bedford,
“Do you see someone in court today that you recognize as one of those three individuals?” and
Bedford responded, “No.”
¶8 Bedford testified that he could not see the shooter’s face because it was partially concealed
by a t-shirt. He could only see a portion of the shooter’s face including the eyes and facial tattoos
for which he said, “I thought it was numbers.” He went on to describe the tattoo as being the
numbers “seven” and “two.” When asked if he had seen that tattoo before, he replied, “Not really
but I have seen it.” The State asked if Bedford knew anyone in particular with that tattoo and he
responded, “Yeah, I know a few people.”
¶9 Bedford was shot repeatedly in the chest, arms, buttocks, and groin. He claimed the
assailant shot him three times, began to flee, then stopped, and started shooting again. Bedford’s
girlfriend arrived at the scene and took him to the hospital where he underwent surgery to repair
his lung and remove his spleen.
¶ 10 Detectives visited Bedford while he was recovering in the hospital, and Bedford told them
he thought the shooter was someone named Hustle Porter, who Bedford knew from the
neighborhood. At that point, the State asked Bedford if he saw that individual in court, and Bedford
identified defendant. Bedford also identified a piece of paper he gave detectives on which he had
written “Street name Hustle Porter,” and “I got love for him still.”
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¶ 11 Bedford was shown a photo array in the hospital and he identified a photo of defendant.
He also selected two photos which contained other individuals that he recognized, but he did not
recognize them from the shooting. Bedford subsequently had a conversation with an unnamed
assistant State’s attorney during which Bedford claimed he recognized defendant as the shooter
because of the tattoos on his face. Under cross-examination, Bedford stated that he recognized one
of the other men with guns as someone he knew as “Suave.” Bedford could only describe the guns
carried by his assailants as “automatics.”
¶ 12 Defendant testified in his own defense and admitted that he had previously been acquitted
of attempt murder. He could not remember where he was on the afternoon of June 22, 2014, and,
although he knew Bedford, he never spoke to him, had no contact with him, and never shot him.
Defendant identified “Suave” as someone named Dexter McCray, but denied that McCray had any
facial tattoos. Defendant further admitted he went by the name “Hustle.” During cross-
examination, defendant denied making a phone call from jail to an unspecified person to arrange
to offer Bedford $10,000 not to testify. On redirect examination, defendant insisted he could not
have made such an offer because neither he nor his family had that amount of money.
¶ 13 A number of recordings of phone calls defendant placed from the Cook County Department
of Corrections were admitted into evidence. As we noted in our order for defendant’s direct appeal,
those audio files were included in the record on appeal, but could not be opened. Porter, 2020 IL
App (1st) 170216-U, ¶ 17, n. 3. The record on appeal in the instant case does not contain these
recordings, either. But the trial court summarized one of the phone calls as being a call between,
“[defendant] and his sister in regards to a payment, five thousand dollars up front. He doesn’t even
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have a car. They will give him five now and five later.” The record provides no further summary
of the phone call or its context.
¶ 14 Kimberly Hofsteadter, an investigator employed by the Inspector General’s Office at the
Cook County Department of Corrections testified that she was responsible for investigating
defendant’s jail phone calls. When she listened to the recordings of defendant’s jail phone calls,
she never heard him admit to shooting Bedford.
¶ 15 On April 10, 2023, following his direct appeal, defendant, represented by postconviction
counsel, filed a petition for postconviction relief. That petition alleged that trial counsel provided
ineffective assistance by failing to move to suppress Bedford’s identification of defendant or
introduce expert testimony regarding the unreliability and fallibility of Bedford’s eyewitness
identification. Defendant’s petition summarized the multiple areas for which expert testimony
would have been relevant, including Bedford’s opportunity to view the shooter, the high-stress
nature of the incident, the presence of a weapon, Bedford’s degree of attention, and the accuracy
of Bedford’s description of the shooter. Defendant cited to multiple cases which have discussed
these topics. See e.g. People v. Allen, 376 Ill. App. 3d 511, 524 (2007) (“[S]tudies have shown a
witness’s focus on a weapon indicates less attention is paid to encoding the perpetrator’s
characteristics.”). The petition also attached the text of two studies discussing the effects of high
levels of stress on the accuracy of eyewitness memory.
¶ 16 One of the two was a 2004 study of active-duty United States military personnel who were
subjected to high-stress and low-stress interrogations. See Charles A. Morgan III et al., Accuracy
of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27
Int’l J. L & Psychiatry 265 (2004). During the high-stress interrogations, the subject was
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questioned for 40 minutes by an interrogator while another individual portraying a guard would
become physically confrontational if the subject did not appear to be complying with the
interrogator’s requests. Id. at 267-68. The low-stress interrogations involved no physical
confrontation, but the subject was presented with the challenge of being “tricked” by the
interrogator into giving away information. Id. at 268. The interrogators and guards were well lit
and did not have their faces concealed. Id. Twenty-four hours later, the subjects were asked to
select those who interrogated them out of physical line-ups and photo arrays. Id. at 269. For the
high-stress interrogations, the subjects correctly identified their interrogators in the line-ups and
photo arrays 30% and 34% of the time, respectively. In the low-stress interrogations, these
numbers increased to 62% and 76%, respectively. Id. at 272. The study noted, “Contrary to the
popular conception that most people would never forget the face of a clearly seen individual who
had physically confronted them and threatened them for more than 30 min[utes], a large number
of subjects in this study were unable to correctly identify their perpetrator. These data provide
robust evidence that eyewitness memory for persons encountered during events that are personally
relevant, highly stressful, and realistic in nature may be subject to substantial error.” Id. at 275.
¶ 17 The trial court dismissed defendant’s petition as frivolous and patently without merit.
Regarding the issue of trial counsel’s failure to present an eyewitness testimony expert, the trial
court’s order reasoned that, “Trial counsel’s failure to present an eyewitness expert witness is
evident from the trial record. Petitioner therefore could have raised the claim on direct appeal, and
his failure to do so results in its forfeiture.” The trial court also held that, even if defendant’s claim
was not forfeited, defendant’s argument about the testimony an eyewitness expert would provide
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was cumulative to what was presented at trial. The trial court reasoned, referring to defendant’s
attached exhibits:
“Those publications are then connected to the facts of this case and the purported testimony
that would have come from an eyewitness expert is detailed in the petition’s argument. At
that point, this evidence is basically the same as was presented at trial and in the motion
for new trial, through counsel’s argument about the reliability of the identification as well
as the cross-examination of Bedford.”
¶ 18 As for defendant’s claim that trial counsel was ineffective for failing to attempt to suppress
Bedford’s identification, the trial court ruled that defendant’s petition provided no arguable basis
for suppressing the identification such as the suggestiveness of the procedure or police misconduct.
This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 The Act provides a mechanism by which a defendant may raise a collateral attack against
his or her conviction based on a claim of actual innocence or where there was a substantial denial
of his or her rights under the Constitution of the United States, the State of Illinois, or both. 725
ILCS 5/122-1 et seq. (West 2022). The purpose of postconviction proceedings is to allow inquiry
into constitutional issues involved in the original conviction and sentence that have not been, and
could not have been, adjudicated previously on appeal. People v. Buffer, 2019 IL 122327, ¶ 12.
Review of the trial court’s dismissal of a postconviction petition is de novo, meaning we afford no
deference to the trial court’s decision. Id.; People v. Randall, 2016 IL App (1st) 143371, ¶ 44.
¶ 21 The Act sets out a three-stage process for the adjudication of post-conviction petitions. Id.
at ¶ 45. At the first stage, the stage pertinent to this case, the trial court is only required to determine
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whether a petition is “frivolous or patently without merit.” 725 ILCS 5/122-2.1(a)(2); Buffer, 2019
IL 122327, at ¶ 45. A petition is frivolous or patently without merit when it has no arguable basis
in law or in fact. People v. Hodges, 234 Ill. 2d 1, 16 (2009). A petition which lacks an arguable
basis either in law or in fact is one which is based on an indisputably meritless legal theory or a
fanciful factual allegation. Id. An example of an indisputably meritless legal theory is one which
is completely contradicted by the record. Id. Fanciful factual allegations include those which are
fantastic or delusional. Id. at 17.
¶ 22 A first-stage petition does not have to demonstrate or prove a constitutional violation.
People v. Tate, 2012 IL 112214, ¶ 19. Nor is a defendant required to allege facts supporting all
elements of a constitutional claim. People v. Thomas, 2014 IL App (2d) 121001, ¶ 48. The
threshold for survival is low, and a defendant need only allege enough facts to make out a claim
that is arguably constitutional for purposes of invoking the Act. Id. However, the petition must
clearly set forth the respects in which the defendant’s constitutional rights were violated. Id.
Petitions must be given a liberal construction and are to be viewed with a lenient eye, allowing
borderline cases to proceed. Id. But liberal construction does not mean that we distort reality. Id.
Whether a defendant is pro se at the first stage or he is represented by counsel, this standard
remains the same. Tate, 2012 IL 112214, ¶ 12.
¶ 23 The United States and Illinois Constitutions guarantee every criminal defendant the right
to the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.
To sustain a claim of ineffective assistance, one must show both that defense counsel’s
performance was deficient, measuring it against an objective standard of competence under
prevailing professional norms, and that but for counsel’s deficient performance, there was a
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reasonable probability that the outcome of the case would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id. at 694. The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result. Id. at 686.
¶ 24 Judicial scrutiny of counsel’s performance must usually be highly deferential. Id. We
should ordinarily indulge the strong presumption that defense counsel’s conduct falls within a wide
range of reasonable professional conduct, and defendant must overcome the presumption that the
challenged action might be considered sound trial strategy. Id. at 689.
¶ 25 However, in the context of first-stage postconviction proceedings, determining whether
counsel made strategic decisions is inappropriate. Tate, 2012 IL 112214, ¶ 22. This is because, at
the first stage, a defendant need not “prove” or “demonstrate” ineffective assistance of counsel by
showing that counsel’s performance was deficient and that it prejudiced his defense. Id. ¶ 19. That
is a matter for second-stage proceedings. Id. Instead, at the first stage, a petition may not be
summarily dismissed “if (i) it is arguable that counsel’s performance fell below an objective
standard of reasonableness and (ii) it is arguable that defendant was prejudiced.” (Emphasis in
original.) Id.
¶ 26 A. Forfeiture
¶ 27 We first address the State’s argument that defendant has forfeited his claims. Defendant’s
brief contains no argument regarding his postconviction claim that trial counsel was obligated to
move to suppress Bedford’s identification. Supreme Court Rule 341(h)(7) requires an appellant’s
brief to contain argument with citation to authorities and relevant pages of the record, and it states
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that points not argued are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Based on the briefing,
it appears that defendant has abandoned this argument, and we agree with the State that defendant
has forfeited this issue.
¶ 28 However, we disagree with the State’s argument that defendant has forfeited the claim that
trial counsel was ineffective for failing to call an eyewitness identification expert because it could
have been raised on direct appeal. It is, of course, well-established that issues which could have
been raised on direct appeal, but were not, are procedurally defaulted. People v. Harris, 224 Ill. 2d
115, 124-25 (2007). However, defendant’s claim, which relies on scientific studies not present in
the record prior to the filing of his postconviction petition, is not one that could have been made
on direct appeal. Indeed, the fact that the record was not developed in this way is inextricably
intertwined with defendant’s claim that trial counsel provided ineffective assistance. As our
supreme court has said, “An ineffective assistance claim based on what the record discloses
counsel did, in fact, do is subject to the usual procedural default rule.” Tate, 2012 IL 112214, ¶ 14.
“But a claim based on what ought to have been done may depend on proof of matters which could
not have been included in the record precisely because of the allegedly deficient representation.”
Id. If defendant raised this argument on direct appeal, his inability to establish prejudice would
have been virtually assured because the record was devoid of even potential expert testimony that
could have been provided at trial—and that absence is precisely because of the ineffectiveness that
defendant now alleges. To invoke forfeiture would penalize defendant for the exact alleged lapse
of trial counsel that he now seeks to attack collaterally. Thus, we disagree that defendant forfeited
his claim.
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¶ 29 B. Lack of Affidavits
¶ 30 We also briefly address the State’s contention that defendant has not attached an affidavit
from a proposed expert witness to his petition. The Act requires that the petition “shall have
attached thereto affidavits, records, or other evidence clearly supporting its allegations or shall
state why the same are not attached.” 725 ILCS 5/122-2 (West 2022). But at the first stage, the
petition need only allege a limited amount of detail “capable of independent corroboration.”
People v. Hayes, 2022 IL App (1st) 190881-B, ¶ 24 (quoting People v. Allen, 2015 IL 113135,
¶ 24). Of note, the petition in Hayes attached only scientific studies and cited to other cases on the
topic of eyewitness identification. Id. ¶ 14. The State’s argument that defendant must have attached
an affidavit or explain its absence ignores that the Act also allows for “records or other evidence.”
725 ILCS 5/122-2 (West 2022).
¶ 31 Moreover, defendant’s attached studies here give a clear indication of the type of testimony
he would seek to introduce and also indicate that his claim is capable of independent
corroboration—the science clearly exists. Additionally, given that the standard at the first stage is
the same whether or not one is represented by counsel, it would be patently unworkable to require
incarcerated defendants with minimal resources to identify, seek out, communicate with, and
obtain a notarized affidavit from an eyewitness identification expert. Tate, 2012 IL 112214, ¶ 12.
Whether defendant’s petition as it exists would survive the second stage, where he must actually
demonstrate he is entitled to relief, is another question for another day. But defendant’s petition
supplies ample information about his claim and the type of testimony he alleges should have been
introduced. The threshold for survival at the first stage is low, and defendant need only provide a
“limited amount of detail.” People v. Rosado, 2016 IL App (1st) 140826, ¶ 26. Accordingly,
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defendant’s failure to identify a specific expert witness and procure an affidavit is not fatal in light
of the other factual information attached to his petition.
¶ 32 C. Arguable Deficiency
¶ 33 We next address whether defendant’s petition satisfies the first prong of our analysis:
whether trial counsel’s performance was arguably deficient.
¶ 34 Trial counsel performs deficiently when actions or inactions constituted errors so serious
as to fall below an objective standard of reasonableness under prevailing professional norms.
Hayes, 2022 IL App (1st) 190881-B, ¶ 27. The failure to “present available evidence to support a
defense” may constitute deficient performance. Id. (quoting People v. York, 312 Ill. App. 3d 434,
437 (2000)).
¶ 35 Hayes is highly instructive here. There, the defendant was convicted of first degree murder
based in part on the eyewitness testimony of six different witnesses. Hayes, 2022 IL App (1st)
190881-B, ¶ 1. None of the witnesses saw the defendant’s face for more than 30 seconds, and some
saw it for as little as a few seconds. Id. ¶ 7. One eyewitness never saw the defendant’s face from
the front. Id. Descriptions of the defendant’s height varied from 5 feet, 6 inches to 6 feet, and there
was no consensus about whether the defendant had facial hair. Id. ¶ 8. No physical evidence linked
the defendant to the crime, and the defendant made no admissions. Id. ¶ 35. Following the
defendant’s conviction and unsuccessful direct appeal, he filed a postconviction petition alleging
the ineffectiveness of trial counsel for failing to call an expert in eyewitness identification. Id.
¶¶ 13-14. The defendant cited cases referring to “scientific consensus” on weapons focus, along
with two scientific studies. Id. ¶ 14. The trial court summarily dismissed the petition at the first
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stage, relying on deference to trial strategy and that trial counsel “vigorously cross-examined the
State’s eyewitnesses regarding their identifications.” Id.
¶ 36 We reversed and remanded for second-stage proceedings, finding that the defendant stated
the gist of a constitutional claim. We rejected the argument that trial counsel’s decision not to call
an expert was trial strategy, because, as we have already noted, that is not an appropriate first-stage
consideration. Id. ¶ 28. We also noted that, while trial counsel need not introduce or attempt to
introduce expert testimony about eyewitness identification in every case involving eyewitnesses,
it was arguable that “this is the type of case for which expert eyewitness testimony is both relevant
and appropriate.” Id. ¶ 35 (quoting People v. Lerma, 2016 IL 118496, ¶ 26). We reasoned that,
“Like Lerma, we have no physical evidence linking [the defendant] to the offense, and he made
no admissions. Also like Lerma, several factors could have contributed to the unreliability of
eyewitness testimony including ‘the stress of the event itself, the use and presence of a weapon
and nighttime viewing.’ ” Id.
¶ 37 This case is squarely in line with Hayes. Defendant’s case also involved a brief, high-stress
scenario with not only the presence of a weapon, but where the only eyewitness was shot multiple
times. Additionally, like Hayes, there was no forensic evidence linking defendant to the crime and
defendant never admitted to the shooting. Furthermore, in Hayes, the identification of the
defendant was based on six eyewitnesses and there was no evidence that the defendant’s face was
covered. Whereas here, the identification of defendant was based solely on one witness, the victim
who was shot, and only a small portion of defendant’s face was visible during the encounter.
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¶ 38 One issue we must touch on is the fact that defendant’s trial predated Lerma, which stated
definitively that research regarding eyewitness identification is “well settled, well supported, and
in appropriate cases a perfectly proper subject for expert testimony.” Lerma, 2016 IL 118496,
¶ 24. Normally, we do not condition effective assistance on trial counsel’s ability to predict
changes in the law. See People v. Chatman, 357 Ill. App. 3d 695, 700 (2005). But as our supreme
court observed in Lerma, the subject of eyewitness identification expert testimony is not a new
one, nor is it one whose propriety has only recently been established. As far back as People v. Enis,
our supreme court recognized that such testimony may be admissible, even if it should be used
with caution. Lerma, 2016 IL 118496, ¶ 24; see People v. Enis, 139 Ill. 2d 264, 287-89 (1990).
Moreover, the studies cited by defendant in his petition were published in 2004, and thus were
clearly available to trial counsel.
¶ 39 The State also urges us to conclude that trial counsel’s performance was not arguably
deficient because trial counsel “vigorously challenged every aspect of the People’s case before,
during, and after trial.” But a thorough analysis of trial counsel’s performance is not appropriate
at the first stage where the trial court acts “strictly in an administrative capacity by screening out
those petitions which are without legal substance or are obviously without merit.” Tate, 2012 IL
112214, ¶ 12 (quoting People v. Rivera, 198 Ill. 2d 364, 373 (2001)). Furthermore, whether trial
counsel otherwise performed a thorough defense except for the alleged error is irrelevant if the
alleged error was significant enough to alter the outcome of the trial. In fact, that is precisely the
analysis we perform at the second stage when we determine whether defendant’s claims, if proven,
would entitle him to relief. People v. Sanders, 2016 IL 118123, ¶ 31 (the question at the second
stage is whether the allegations in the petition, taken as true, are sufficient to invoke relief under
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the Act). The two cases cited by the State for its argument that trial counsel’s performance was not
deficient because he vigorously defended the case both concerned direct appeals, and did not
involve the low standard that we impose at first-stage postconviction proceedings. See In re Dante
W., 383 Ill. App. 3d 401 (2008), and People v. Bloomingburg, 346 Ill. App. 3d 308 (2004).
¶ 40 Likewise, the State’s argument that the decision not to call an eyewitness expert was trial
strategy is one we cannot endorse. “The State’s strategy argument is inappropriate for the first
stage, where the test is whether it is arguable that counsel’s performance fell below an objective
standard of reasonableness and whether it is arguable that the defendant was prejudiced.” Tate,
2012 IL 112214, ¶ 22.
¶ 41 The State also argues that Lerma does not stand for the proposition that the failure to
present an eyewitness expert constitutes ineffective assistance of counsel. That much is true, but
this argument only reflects the State’s continuing misapprehension of the burden at first-stage
proceedings. We agree that not every case involving eyewitness identification warrants an expert.
See Lerma, 2016 IL 118496, ¶ 25 (finding abuse of discretion in excluding eyewitness expert
“given the specific facts presented”). But whether trial counsel actually performed deficiently by
not calling an expert here is a question for second-stage proceedings.
¶ 42 Like Hayes, it is arguable that “this is the type of case for which expert eyewitness
testimony is both relevant and appropriate.” Defendant has alleged the ineffectiveness of trial
counsel based on the failure to call an eyewitness identification expert, clearly invoking a violation
of a constitutional right as required by the Act. As we have observed, there is clear precedent that
trial counsel may be ineffective for failing to present evidence that supports a defense, and there
is clear precedent for the admissibility of eyewitness expert testimony. Only one eyewitness
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identified defendant, and did so during an exceptionally brief encounter where he was shot multiple
times. Construing defendant’s petition as true, we agree that it was arguably error for trial counsel
to not call an eyewitness identification expert. We cannot say that this claim is based upon an
indisputably meritless legal theory, nor does it contain factual allegations that are fantastic or
delusional. Whether defendant will require more to establish conclusively trial counsel’s deficient
performance is a question for second-stage proceedings. But he has met the low bar required to
survive first-stage proceedings.
¶ 43 D. Arguable Prejudice
¶ 44 Next, we must consider if defendant has alleged arguable prejudice from trial counsel’s
arguably deficient performance. To show prejudice, a defendant must demonstrate a reasonable
probability that the result of the trial would have been different had counsel performed adequately.
Hayes, 2022 IL App (1st) 190881-B, ¶ 39.
¶ 45 The State argues that defendant “cannot plausibly explain how a defense expert would have
undermined the reliability of [Bedford]’s identification to the extent that the outcome at trial would
have been different.” Once again, we note that defendant’s burden at this stage is not to
demonstrate prejudice but, rather, arguable prejudice. However, the explanation the State seeks is
quite plain.
¶ 46 Bedford’s only opportunity to view his attacker without any impediment was in the
moment before the shooter opened fire—which was an unspecified amount of time. But Bedford’s
testimony painted the encounter as exceptionally brief. He could only see a thin horizontal strip of
the attacker’s face, which included eyes and the numerical tattoos “seven” and “two”—tattoos
Bedford knew belonged to “a few” people. Bedford provided no additional description of the
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shooter. Nor did his testimony offer any insight into how he knew the shooter was not one of the
other people he knew with the same tattoo.
¶ 47 The trial court found Bedford’s identification credible based on his consistency over the
course of the investigation, and the State argues that the trial court already considered the strength
of the evidence, including Bedford’s identification, and therefore an expert was not needed. But
this argument misses the point. It is one thing to argue the credibility of Bedford’s identification
based on the circumstances. It is another to be able to argue, with scientific force, that even if
Bedford was certain who he saw, he still had a strong probability of being incorrect.
¶ 48 The study attached to defendant’s petition not only showed that a very low number of
participants were able to make correct identifications, but that more than half of the participants
positively identified someone other than their interrogators in a line-up or photo array when the
true interrogator was present. Morgan, Accuracy of Eyewitness Memory, 27 Int’l J. L & Psychiatry
at 271-72. Based on defendant’s petition, there is an arguable scientific basis to believe that the
human brain is rather ill-equipped to make accurate identifications and that it more often than not
makes incorrect identifications while believing it is correct. In other words, there is some scientific
evidence to at least argue that Bedford’s confidence and consistency in his identification was not
nearly as meaningful as the trial court believed it to be. As Hayes noted, “Witness confidence and
accuracy may not be related.” Hayes, 2022 IL App (1st) 190881-B, ¶ 44. By the time witnesses
testify, they may be mistaken, all the while “exuding supreme confidence.” Hayes, 2022 IL App
(1st) 190881-B, ¶ 44 (quoting State v. Henderson, 208 N.J. 208, 236 (2011)). As a result, “there is
almost nothing more convincing to a jury than a live human being who takes the stand, points a
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finger at the defendant, and says, ‘That’s the one!’ ” Hayes, 2022 IL App (1st) 190881-B, ¶ 44
(quoting State v. Henderson, 208 N.J. at 237).
¶ 49 Arguable prejudice resulted from the fact that the trial court was not given this sort of
scientific evidence to consider alongside Bedford’s testimony. An eyewitness identification expert
would have added to defendant’s defense and it is at least arguable that defendant was prejudiced
by the failure to call such a witness.
¶ 50 Accordingly, we hold that defendant’s petition established arguable prejudice such that his
ineffective assistance of counsel claim merits second-stage proceedings.
¶ 51 III. CONCLUSION
¶ 52 Defendant’s petition is not one that lacks an arguable basis in law or fact, and therefore it
cannot be considered frivolous or patently without merit. For the foregoing reasons, we reverse
the judgment of the trial court and remand for second-stage proceedings.
¶ 53 Reversed and remanded.
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