Image courtesy of freedigitalphotos.net/Salvatore Vuono

A deceased trial judge’s decision to convict a man for murder based on evidence that was not offered by the State led Judge Posner to author an opinion in which he ardently condemned the trial judge’s basis for conviction and declared that his finding was “nonsense.”

About two hours after sunset on September 22, 1999, Ramon Nelson was riding his bike away from a liquor store in Markham, south of Chicago, when he was struck in the head with a wooden stick. At the time of his death, Nelson was carrying roughly 40 individual bags of crack cocaine, presumably for sale.

The defendant, Lawrence Owens, was convicted by a Cook County judge for the murder of Nelson and sentenced to 25 years in prison. Last week, the Seventh Circuit Court of Appeals reversed the district court’s denial of Owens’ habeas corpus petition and gave the state 120 days to decide whether to retry him.

At trial, the judge based the conviction on his finding that “[t]he issue to me was you have a seventeen year old youth on a bike who is a drug dealer, who Larry Owens knew he was a drug dealer. Larry Owens wanted to knock him off. I think the State’s evidence has proved that fact. Finding of guilty of murder.” Essentially, the Court of Appeals found that the trial judge based his conviction not on the eyewitness identification, but on the fact, which was not proved, that Owens knew Nelson was a drug dealer.

At trial, the State offered no evidence that Owens knew Nelson, that Owens used or sold drugs, or whether Owens was gang member. Perhaps most importantly, the State did not offer evidence that Owens knew Nelson was a drug dealer or that Owens wanted to kill Nelson. Instead, the State based its case on two witnesses’ shaky identification. The Court of Appeals found that despite the “substantial doubts that have been raised concerning the reliability of eyewitness evidence” the eyewitness identification could “have supported a finding beyond a reasonable doubt that Owens had murdered Nelson.” However, the trial court did not base it conviction on the eyewitnesses’ identification.

The Illinois Appellate Court affirmed Owens’ conviction. The trial court denied Owens’ post-conviction petition, the Appellate Court affirmed, and the Illinois Supreme Court denied Owens’ appeal of the Appellate Court’s ruling. In a dissent, an Appellate Court justice wrote the trial judge manufactured, supplied, and interjected “its own evidence into a trial and then affirmatively stat[ed] on the record that this manufactured evidence constituted the basis of its verdict.”

Owens filed a petition for federal habeas corpus, which the district court denied. In his habeas petition, Owens’ argues that the trial judge “convicted him based his decision on evidence that did not exist, thus denying him due process of law in violation of the Fourteenth Amendment.”

The Court of Appeals found that “there was no actual basis of any sort, in the trial record or elsewhere, for the judge’s finding that Owens knew Nelson, let alone knew or cared that he was a drug dealer. The judge made it up.” Indeed, had the trial judge stated he found the defendant guilty beyond a reasonable doubt based on the eyewitnesses’ identification, and “merely added that ‘by the way my guess is that Owens knew Nelson and killed him for reasons related to their both being drug dealers,’ Owens would have no case, because the judge’s observation would not have been the basis for Owens’ conviction.”

In reversing the district court’s denial of Owens’ habeas petition, the Court of Appeals found that “[g]iven that the entire case pivoted on two shaky eyewitness identification, Owens might well have been acquitted had the judge not mistakenly believed that Owens had known Nelson to be a drug dealer and killed him because of it.”

The trial judge’s decision to base his conviction on evidence that was not proved denied Owens’ his right to due process under the Fourteenth Amendment.

If the state does not elect to retry Owens within 120 days, he must be released from prison.