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Seventh Circuit Finds Lack of Evidence, Grants Habeas Relief, and Orders ‘Immediate Release’

by Dale Chappell

In a rare case, the U.S. Court of Appeals for the Seventh Circuit granted habeas corpus relief to a state prisoner after finding that the State’s evidence was lacking and the state court was “not just wrong, but unreasonable, in holding otherwise.”

In 2001, two individuals rushed in to the Burrito Express in McHenry, Illinois, in an attempt at an armed robbery. However, the two men inside the shop charged the would-be robbers with a knife and ran them out of the store. But the fight wasn’t over. One of the men who chased the robbers was the owner of the shop, and he would end up dead from a gunshot wound after the gunman turned back began firing at the men. The other man with the shop owner wasn’t hurt and was able to tell the police that one of the robbers had a green coat.

The police provided information to local news outlets about the shooting but left out two important details: (1) that the owner of the shop had yelled at a passing car to call 911 and (2) that the owner had a head wound from being hit with a gun. When one of the suspected robbers, Justin Houghtaling, was caught trying to flee to California on a bus, he was busted in Omaha and interrogated by police. They offered him a deal if he would give them the information they wanted. With enough coaching, they got a taped confession and indicted his alleged accomplice, Kenneth Smith. Houghtaling then pleaded guilty to the crime and was sentenced to 20 years in prison in exchange for testifying against Smith at trial.

Smith would wind up having three trials, with the first in 2003 and the last in 2012. the State had no evidence against Smith: no fingerprints, no DNA, no blood, nothing. But it had a lying witness (Houghtaling) and other witnesses with serious credibility issues. Those other witnesses Smith thought would exonerate him.

The State obtained a conviction for attempted robbery and first-degree murder, and Smith received 67 years in prison. Houghtaling would get another five and a half years in prison for recanting his story implicating Smith during the second trial, saying that he lied under oath, which is what led to Smith’s third trial.

During his third trial, Smith identified Russell Levand, Adam Hiland (wearing the green jacket identified by witnesses), and Susanne DeCicco (collectively, the “DeCicco Group”) as the real perpetrators and introduced evidence that police received numerous tips leading them to suspect Susanne as being involved; she confessed to several people of her involvement, including to two police officers, and knew the key details of the crime that police had withheld from the public; Hiland confessed his involvement to several people; and Levand confessed to a long-time acquaintance. Although all the members of the DeCicco Group testified at Smith’s third trial, they all disavowed or denied their earlier confessions.

Smith was convicted. He appealed, but his conviction and sentence were affirmed in 2013. He eventually filed for habeas corpus relief in federal court.

Smith argued that the state trial court had unreasonably applied “clearly established federal law,” under 28 U.S.C. § 2254(d)(1), that being the U.S. Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307 (1979), holding that a conviction must stand unless “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” The U.S. District Court for the Northern District of Illinois just barely found that the evidence supported Smith’s conviction (Houghtaling’s recanted confession implicating Smith and Houghtaling wearing a green jacket); however, it also found that there were some other evidentiary issues that required a new trial. It granted his habeas petition on the condition that the State could retry him. The State filed an appeal, and Smith filed a cross appeal arguing that he should have been granted an “unconditional” writ resulting in his release.

The Seventh Circuit noted that it could not overturn a state court conviction lightly. See Cavazos v. Smith, 565 U.S. 1 (2011) (may do so “only if the state court decision was objectively unreasonable”). “Instead, we must find the decision not just wrong, but well outside the boundaries or permissible outcomes,” the Court said. That is, the Court could not overturn Smith’s conviction merely because it disagreed with it; the Court could overturn it only if the state court was “objectively unreasonable.”

The Court stated that the district court failed to appreciate the distinction between the “any-evidence” rule repudiated in Jackson and the more qualified “no evidence from which a jury could find guilt beyond a reasonable doubt.” The district court erroneously reasoned that as long as the record wasn’t “devoid of evidence” of Smith’s guilt it couldn’t grant habeas relief. But the Court explained that is “not the correct standard” and that courts “are permitted even under AEDPA to correct this type of legal error.” Avila v. Richardson, 751 F.3d 534 (7th Cir. 2014). The Court further explained that “devoid of evidence” isn’t the proper standard because a “mere modicum” of evidence couldn’t by itself “rationally support a conviction beyond a reasonable doubt. (quoting Jackson)

After reviewing the long and detailed record, the Court concluded that Smith met the onerous harmless error standard for habeas corpus cases set forth by the U.S. Supreme Court in O’Neal v. McAninch, 513 U.S. 432 (1995), and Davis v. Ayala, 576 U.S. 257 (2015). The Court stated that one member of the DeCicco Group’s confession contained “indicia of credibility far exceeding those of the other confessions on record,” the State’s only eyewitness provided inconsistent testimony about the green jacket, “casting into doubt the only piece of tangible evidence linking Houghtaling—and therefore Smith—to the crime,” and other reasons discussed in the opinion in detail cast doubt on the sufficiency of the evidence against Smith. The Court determined that with such a “serious possibility of a third-party’s guilt,” no juror would have found Smith guilty. Therefore, the Court ruled that “the state court’s determination of harmlessness was unreasonable and thus cannot stand.”

The Court added: “Although this holding primarily affects the need for a new trial, it also sheds light on the insufficiency of the evidence as actually presented and reinforces our conclusion that Smith is entitled to issuance of the writ.”

Accordingly, the Court reversed the district court, remanded to that court with instructions to grant the writ unconditionally, and ordered Smith’s immediate release from state custody. See: Smith v. Brookhart, 996 F.3d 402 (7th Cir. 2021). 

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Related legal cases

Smith v. Brookhart

Cavazos v. Smith



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