At 9:30 p.m. on July 9, 1977, Ernest Howard, a drug dealer, was fatally shot while on the west side of South Christiana Street near the intersection of 16th Street in Chicago, Illinois.
Before police arrived, Howard told Maurice Williams, a friend of his who was across the street during the shooting, that two men he knew had robbed and shot him. Howard died of his wounds at a hospital not long after without naming his attackers.
Chicago Police detectives prepared a report containing the names of a number of people who saw a man flee from the direction of the shooting, including Leroy Carter, who lived near the location of the shooting. Carter told police that he was sitting in his car in front of his house when he heard the shot and saw a black male running in a northeasterly direction away from the intersection of Christiana and 16th into a nearby playground. At a police lineup three days later, Carter identified Melvin McWhorter as the man he saw fleeing.
Alice Riles, another Christiana Street resident, told police she was sitting on the front porch of her house when she heard the shot. She saw two men flee in a northeasterly direction away from the scene into a vacant lot near the playground. Riles also identified McWhorter in a lineup as one of the men she saw.
When police first questioned McWhorter, he denied being in the area or having any knowledge of the shooting. When police questioned him a second time, McWhorter admitted that he had originally lied. He said he had gone to the area of Christiana and 16th on the night of the murder in order to buy drugs and that while there he heard a shot and saw Warren Harris walk south on Christiana, away from the scene, and turn west on 16th Street.
McWhorter remained the primary suspect until a month later when the police received a tip from an unidentified informant that Antonio Slater had witnessed the incident. Police interviewed Slater, who said that on the night of the incident, he was driving down 16th Street and turned onto Christiana. He said that while he was on 16th Street, a car in front of him caused him to slow down, at which time he heard the shot and saw a man run toward a light colored Buick, get inside, and drive past his vehicle. After reviewing police photographs, Slater identified a picture of Warren Harris as the man he saw enter the Buick and drive away. The police arrested 29 year-old Harris later that day and he was charged with first-degree murder.
Harris went on trial in Cook County Circuit Court on December 15, 1977. During opening statements, one of Harris’s lawyers, Kathryn Kuhlen, emphasized that Melvin McWhorter would be a key figure in the trial and suggested that McWhorter was one of the gunmen who shot Howard.
At trial, the prosecution presented six witnesses. Howard’s father testified that he identified his son’s body at the morgue. Maurice Williams, Howard’s friend, testified about attempting to assist the wounded Howard at the scene. Williams also testified that he recognized McWhorter in the crowd that gathered after the shooting. A police officer who was the first to the scene testified to what he found when he arrived and two medical personnel testified that Howard died from a gunshot wound.
Slater was the only witness to link Harris to the shooting. At trial, Slater’s testimony about his route prior to the incident was critically different from the account he gave to the police. This time, instead of saying he was on 16th Street and turned onto Christiana, Slater testified that he was traveling southbound on Christiana past 15th street when he arrived upon the scene. He said that he heard a gunshot and saw a man push a victim to the ground approximately 12 feet in front of the car blocking his progress on Christiana. Slater said he saw the gunman run to the car in front of him where he turned to face Slater with his gun in hand. The man then got into the car and drove off. Slater said that although it was night, he was able to identify the gunman as Harris because of the headlights of his own car and because the street lights were lit. Slater also claimed that he was familiar with Harris because he had seen him approximately two years earlier at a nearby pool hall.
Harris’s second lawyer, Todd Musburger, questioned Slater about his delay in coming forward to police and the discrepancy between his trial testimony and his earlier statement to police. When Slater denied giving the earlier version to police, Musburger dropped the issue. After Slater left the witness stand, the prosecution rested its case.
When the trial reconvened the next morning, Musburger said the defense would not be calling any witnesses. Musburger made no attempt to present Slater’s pre-trial statement to the police, despite the fact that it contradicted the sworn testimony Slater gave in court and was contained in a police report the prosecution agreed was accurate.
On December 21, 1977, the jury convicted Harris of first-degree murder and he was sentenced to 50 to 100 years in prison. The trial stretched over three days but only occupied a few hours of court time, from jury selection through closing arguments.
On direct appeal, Harris raised one issue: whether he was proven guilty beyond a reasonable doubt. The Illinois Appellate Court rejected that argument and Harris filed a petition for a new trial claiming that his trial was constitutionally unfair because his trial lawyers failed to interview or call witnesses who saw the shooting, failed to seek the identity of the informant who led police to Slater, failed to present the statement that impeached Slater’s testimony, failed to investigate an alibi defense, and failed to tell Harris there would be no alibi defense until just before the defense rested its case.
The petition was dismissed without a hearing.
Harris appealed, and the Illinois Appellate Court affirmed the decision to dismiss the petition in an unpublished order which discussed both procedural default and the merits of some of Harris’s claims.
In 1980, Harris filed a federal petition for a writ of habeas corpus challenging his conviction. In October 1982, the petition was dismissed because Harris still had an appeal pending in state court. In April 1983, after Harris’s state appeals were resolved against him, he was allowed to reinstate the federal habeas petition and raise several claims—including that his trial lawyers had failed to provide an adequate defense, that new evidence showed he was innocent and that the evidence against him was insufficient.
In April 1985, U.S. District Judge Susan Getzendanner agreed to consider Harris’s claim that his trial lawyers had failed to adequately represent him. Getzendanner held three days of hearings and in May 1986 denied Harris’s petition. Getzendanner held that although it did appear that the defense lawyers did an inadequate investigation, the benefit of better work was “murky at best” because some of Harrris’s alibi witnesses were not credible, and the other witnesses would not have changed the verdict if they had testified.
In 1987, the Seventh Circuit U.S. Court of Appeals upheld Getzendanner's decision, but did not reach the merits of the ruling. Instead, the Court of Appeals held that the claim of inadequate assistance of counsel was procedurally barred in federal court because the Illinois Appellate Court had determined that the claim was waived in state court proceedings.
Lawyers for Harris challenged that ruling in the U.S. Supreme Court. In 1989, the Supreme Court ruled that Harris was not barred from litigating ineffective assistance of counsel in federal court because the Illinois appellate courts had not expressly relied on waiver in deciding Harris’s state court petition challenging the performance of his trial attorneys. The Supreme Court reversed the Seventh Circuit and remanded the case for reconsideration.
In 1990, the Seventh Circuit reversed Getzendanner’s decision and issued a writ of habeas corpus. In an opinion by the Seventh Circuit’s Chief Judge William J. Bauer, the court held that because Harris’s lawyers failed to call the witnesses who said they saw McWhorter leaving the scene of the shooting, Harris received a constitutionally unfair trial. The court set aside Harris’s conviction and ordered a new trial.
In March 1990, the prosecution declined to go forward with another trial, the charge was dismissed, and Harris was released.
– Maurice Possley