- Law firms
- Related documents
(Reuters) – There’s an old joke – and maybe it’s not very funny – that all it takes to beat a claim of ineffective assistance of counsel is the “foggy mirror” test.
If the lawyer is breathing, well, that’s good enough.
Against such long odds, a team of lawyers from Kirkland & Ellis working pro bono succeeded in getting a first-degree murder conviction reversed, arguing that their client’s public defender – who is now a judge in Cook County, Illinois – failed to investigate potential witnesses in the prosecution of Lucrecious Towers.
Register now for FREE unlimited access to Reuters.com
The trial counsel’s “deficient performance prejudiced Towers’s defense,” wrote then-U.S. District Judge John Lee in Chicago in a decision issued on Sept. 7 – the same day he was elevated to the 7th U.S. Circuit Court of Appeals, where he is the first Asian-American judge.
The ruling sets the stage for Towers, who had been sentenced to 100 years behind bars for the 2006 murder of John Falls and has already served 16, to walk free. The state of Illinois has 120 days to decide whether to re-try him.
A spokeswoman for the Illinois Attorney General told me via email that the office is “currently reviewing the decision in this case.”
The underlying murder – Falls was shot in a high-crime neighborhood in the South Side of Chicago – attracted little media attention, nor did Towers’ subsequent claims of innocence.
Arrested on March 13, 2006, the day he left the hospital following the birth of his daughter, the then-25-year-old Towers said his conviction was the result of mistaken identity, and that another man was the real killer.
That man, Aarian Bonds, now deceased, drove the same kind of car as Towers – a white Pontiac Bonneville – and also wore his hair in braids. Moreover, he was dating the victim’s ex-girlfriend.
A witness testified that the night before the murder Falls was driving around looking for his ex-girlfriend, and that he got in a traffic altercation with someone driving a white Bonneville. In a photo lineup, the witness originally identified the Bonneville driver as Bonds but later fingered Towers.
Falls was killed the next afternoon when someone – Towers or Bonds? – in a dark hoodie walked up to a car where Falls was waiting to go through a fast-food drive-up and shot him through the window. No physical evidence tied anyone to the crime.
Based on eyewitness identification, police charged Towers with Falls’ murder, pointing to what Kirkland litigation partner Katie Lencioni called a “ridiculous motive theory” of road rage from the prior night’s run-in.
At trial, Towers’ public defender Robert Johnson presented the mistaken identify theory, but the jury found Towers guilty after just four hours of deliberating.
Johnson, now a judge in the Circuit Court of Cook County Domestic Relations Division, did not respond to phone and email messages seeking comment.
In defending Towers’ conviction, state lawyers argued that Johnson had legitimate strategic reasons for how he presented the case, and that the outcome would have been the same regardless.
Towers after his conviction was left to litigate much of his appeal pro se from prison. In legal filings written by hand in a tidy script, he argued in part that Johnson failed to investigate three crucial witnesses who would have bolstered his claim that Bonds was the real killer.
Towers struck out in state court. But he followed up with a legal Hail Mary: A federal habeas petition claiming actual innocence, improper rulings by the trial court and ineffective assistance of counsel.
Lee in 2019 rejected the first two claims based largely on procedural grounds but ordered an evidentiary hearing to determine whether Johnson’s performance was deficient.
That’s when Kirkland at the judge’s behest entered the case, with a team led by Lencioni and fellow senior associate turned partner Kent Hayden, along with the firm’s former chief general counsel (now senior legal advisor) Tom Kuhns.
To prevail under the U.S. Supreme Court’s 1984 decision Strickland v. Washington, they had to show not only that Johnson’s assistance was ineffective, but also that his deficient performance prejudiced the defense.
Lencioni told me that the firm hired an investigator to track down the three witnesses, whom she said were “extremely reluctant” to testify. But after gradually gaining their trust, the Kirkland lawyers were able to convince them to testify at an in-person hearing before Lee in October 2020.
Crucially, one witness said that he loaned Bonds his car because he understood that Bonds’ white Bonneville had been “torn up” in a fight involving his girlfriend’s ex-boyfriend.
The friend’s loaner car, which had a distinctive red stripe, matched the shooter’s getaway car from the fast food drive-up where Falls was killed.
When Bonds’ returned the friend’s car, the friend said Bonds told him he had made “the guy” who damaged his Bonneville “pay for it.”
The friend said he was never contacted by anyone in connection with the case, though according to court papers, Johnson was aware he was the owner of the suspected getaway car.
The decision to call – or not call – a witness can be strategic. But in this instance, Lee found that Johnson “never actually decided either to investigate or not to investigate” the friend. Even if Johnson thought his client was guilty, he was still obligated to “pursue potentially meritorious defenses or investigations,” Lee wrote.
Calling the state’s evidence against Towers “far from overwhelming,” Lee found that if the jury had heard the friend’s testimony, it was “more than reasonably probable that the result of Towers’s trial would have been different.”
Register now for FREE unlimited access to Reuters.com
Our Standards: The Thomson Reuters Trust Principles.
Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.