MOUNT VERNON - Fifth District appellate judges granted prisoner Charles White a hearing and a fresh lawyer on his 18 year old petition for a second trial.
On Sept. 25, they reversed St. Clair County Circuit Judge John O’Gara, who denied White’s petition in 2021.
They found White’s counsel Emily Scott added allegations to the petition in 2020 but failed to explain how the allegations caused prejudice at White’s trial.
They directed O’Gara to appoint counsel for argument on prejudice.
He ordered a $5,000 payment to Scott in 2021 for representing White.
Grand jurors indicted White in 2002 on two counts of aggravated battery with a firearm, finding he shot William Moore and Christopher Clark.
White retained Robert Officer of St. Louis.
At trial in 2003, jurors heard testimony of Moore, Clark, East St. Louis detective Freddie Wills and officer Mario Fennoy.
Jurors convicted them and former judge Milton Wharton imposed two sentences of 26 years to run consecutively.
Testimony of Wills lost its luster in 2004 when grand jurors in U.S. district court indicted him on many counts of mail and wire fraud.
He stipulated to a bit of bribery and entered diversion instead of prison.
The indictment remains under seal.
White appealed his conviction and the Fifth District affirmed Wharton.
He petitioned for another trial in 2006, alleging ineffective assistance from Officer and the state’s appellate defender.
He claimed Officer failed to impeach testimony of Wills, Fennoy and other witnesses.
He claimed Officer failed to obtain grand jury transcripts, locate and secure an alibi witness, conduct scientific testing, advise him as to plea offers, and prepare witnesses.
He claimed appellate counsel failed to raise constitutional claims.
Former chief judge John Baricevic assigned himself to White’s petition and appointed local lawyer James Stiehl as White’s counsel.
In the ten years that followed Baricevic continued the matter 72 times.
Former judge Randall Kelley continued it six times and current U.S. District Judge Stephen McGlynn continued it five times.
O’Gara took the case in 2019 and Stiehl took a position as associate judge.
O’Gara replaced Stiehl with Scott.
Grand jurors in U.S. district court indicted officer Fennoy in 2019 on a charge that he tripled his pay with phony overtime reports.
He would later plead guilty and spend three years on probation.
Scott hired investigator Robert Crotty of Elgin who wrote, “Mr. White stated on numerous occasions the almost non existent communication that he received from attorney Stiehl.
“Mr. White was convicted based on the word of two police officers who demonstrated a continuing pattern of misconduct which eventually led to federal indictments.”
In 2020, Scott amended the petition to add information about the crimes and misconduct of Wills and Fennoy.
She claimed a photograph lineup was unduly suggestive.
“The cumulative prejudicial error throughout the case rendered the trial fundamentally unfair,” she wrote.
O’Gara dismissed the petition, finding the survivors identified White and White’s claims were positively rebutted by the record.
White appealed and Fifth District justices found Scott’s petition deficient.
Justice Mark Boie wrote, “A bare assertion of cumulative prejudicial error throughout the case was insufficient.
“Without an allegation of prejudice the petition did not state a viable claim of ineffective assistance.
“The amended petition did not indicate how, or even if, each allegation would have potentially affected the outcome of the trial.
“Counsel did not allege a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different.
Justices John Barberis and Michael McHaney concurred.