 Frank Burrell (right rear) with family members and attorneys Tara Thompson (right) and David Owens (lower center)
Davis spoke to police after the shooting and gave a generic description of the gunman. He did not say he recognized the gunman or any passengers in the white car.
About a month later, Davis, for the first time, identified 24-year-old Frank Burrell as the gunman, and Jerry Morton and Marshawn Hatcher as passengers.
On November 12, 1999, Burrell was arrested. He was subsequently indicted on a charge of first-degree murder by a Cook County grand jury. Neither Morton nor Hatcher were charged.
After initially pushing his defense attorney, William Murphy, for a jury trial, Burrell ultimately agreed to a bench trial before Cook County Circuit Court Judge Vincent Gaughan.
Davis testified for the prosecution that he had known all along who was in the car, but he did not name anyone to police because he was worried about his family’s safety. He denied being in a gang, and said he knew Burrell, Morton and Hatcher from the neighborhood.
Morton testified that he, Hatcher and Burrell were together on the day of the crime from 3 p.m. until just after the shooting. He said they were in a white Chevrolet Beretta driven by Burrell. Morton said that at about 10 p.m., Burrell saw Davis’s vehicle, pulled alongside it, and fired two shots.
Hatcher had told a similar story to police and in testimony to the grand jury. When he claimed during his testimony that he did not remember details of the night of the crime, his police statement and grand jury testimony were admitted as substantive evidence.
Hatcher and Morton were impeached with several prior felony convictions. In addition, Morton testified that he and Davis were members of the same street gang and that Davis was his “boss.” Morton also said that less than two weeks before Burrell’s trial, prosecutors in a different county dismissed pending charges which that carried up to 30 years in prison at the urging of the prosecutors in Burrell’s case. The prosecution contended that the charges were dismissed because Morton had been paralyzed in an unrelated shooting six months earlier. The defense asserted the dismissal was in exchange for his testimony against Burrell.
The prosecution presented evidence that Burrell’s grandmother owned a white Chevrolet Beretta.
The defense called no witnesses and presented no evidence. In closing argument, Murphy argued that Davis’s failure to identify Burrell right after the shooting was “impeachment by omission.” Murphy argued that Morton’s testimony and out-of-court statements should be disregarded because they were lying to appease Davis.
On July 25, 2002, Judge Gaughan convicted Burrell of first-degree murder. The judge acknowledged that the prosecution witnesses had been impeached in some areas, but he concluded that the testimony as a whole proved Burrell was the gunman.
Judge Gaughan sentenced Burrell to 32 years in prison.
On March 1, 2005, the First District Illinois Appellate Court affirmed the conviction and sentence.
Burrell, acting as his own lawyer, filed a petition seeking to vacate the conviction based on inadequate legal representation by Murphy. The petition said that Murphy had failed to present evidence that Burrell had arrived at his part-time job at 6:30 p.m. on the night of the shooting and that he left about 8:45 p.m.—contradicting Morton’s testimony that they were riding around that night with Burrell.
The petition also said that Murphy had failed to call several witnesses, including family members, who would have testified that after work he came home around 10 p.m., left to borrow a thermometer to take his daughter’s temperature because she was feverish, and then remained at home with his daughter, and other family members and some friends.
The petition also said that a witness, David Boone, would have testified that one or two days after the shooting, Davis was asking people to help him uncover the shooter’s identity.
Judge Gaughan dismissed the petition. Burrell appealed and in 2008, the First District Illinois Appellate Court reversed that ruling and remanded the case to the trial court. On remand, with appointed counsel, a supplemental petition was filed by the Cook County Public Defender’s Office. This petition reiterated Burrell’s initial claim of inadequate legal defense and included an affidavit from Burrell’s employer who said his business records showed that Burrell worked from 6:25 p.m. until 8:45 p.m. on the night of the crime.
Judge Gaughan again dismissed the petition. The First District Illinois Appellate Court reversed again in 2014 and ordered an evidentiary hearing.
At the evidentiary hearing, Boone testified that he was standing outside a barbershop in July 1999 when he overheard Davis tell several men that he was “trying to find out who tried to change him.” Boone testified that he understood “change” to mean “kill.” About a week later, after one of the men present for the conversation with Davis told Boone that Davis was looking for Burrell, Boone told Burrell what he had heard. Defense attorney Murphy listed Boone as a potential witness on his pretrial discovery answer, but he testified that he did not remember ever speaking with Boone and could not recall why he had listed Boone as a potential witness.
Another witness, Sundiata Brown, testified that Davis told him and other fellow gang members, at an emergency gang meeting shortly after Battle’s death, that he did not know who was responsible for the shooting. But Brown conceded that he did not reveal this information to anyone until 2014, when he and Burrell were incarcerated at the same prison.
Davis repeated his trial testimony identifying Burrell as the person who shot Battle. He denied telling people after the shooting that he did not know who was responsible. Davis conceded that he sought information about the shooting, but he claimed that he was only trying to determine whether it had been “sanctioned,” not who carried it out.
Burrell’s grandmother testified that she had owned a white Chevy Beretta in July 1999, and that she did not allow anyone else to drive it. She said Burrell had never driven it. She testified that she was off work on Wednesdays, and on that day, she used the car to run errands. The shooting occurred on a Wednesday. Murphy testified that he did not recall speaking with her. When asked what he had done to investigate whether Burrell had access to the car that was allegedly used in the shooting, Murphy said that “no definite car…was ever specified.” He testified that he remembered testimony at trial that either Burrell’s grandmother or aunt had a white Beretta, but he could not recall taking any steps to investigate that issue.
Mack, Burrell’s employer, testified that he owned and operated a video and film production company for 37 years. In 1999, Burrell worked for him as a part-time janitor three days per week, generally arriving between 5:00 p.m. and 6:00 p.m., after everyone else had left for the day. Mack testified that he kept track of the time that his employees worked using a timecard system.
Mack explained that employees would insert their timecard into the time clock to “punch in” when they arrived. Because Mack had agreed to pay Burrell for a set number of hours per week even if he finished his work more quickly than anticipated, Mack allowed Burrell to manually sign out at the end of his shifts (by handwriting his end time on the card) rather than mechanically punching out. Mack authenticated Burrell’s timecard for July 7, 1999, which showed that Burrell punched in at 6:25 p.m. and signed out at 8:45 p.m.
Mack conceded that he did not personally see Burrell at work that day, but he testified that he was not aware of Burrell ever making a false entry on his timecard. Mack explained that, due to the need for a clean environment in the film business, it would have been readily apparent if Burrell had not worked a scheduled shift.
Murphy testified that he did not believe the timecard had “any real value” because it did not establish an alibi for the time of the shooting. He noted that, and because no one saw defendant Burrell at work that day and “anybody could have signed in or out” for him.
At the close of the hearing, Burrell sought to introduce affidavits from Frank Malcolm and Anthony Wilson attesting that Burrell was at home at the time of the shooting. He also sought to introduce an affidavit from Michael Threlkeld, another person who claimed to have heard Davis tell fellow gang members after the shooting that he did not know the identity of the gunman. The prosecution objected to the admission of the affidavits because it had no opportunity to cross-examine the affiants. As a result, Judge Gaughan refused to consider the affidavits.
At the conclusion of the hearing, Judge Gaughan again denied Burrell relief.
In September 2019, the First District Illinois Appellate Court again reversed Gaughan’s ruling. The court went further as well. It vacated Burrell’s conviction and ordered a new trial.
The appellate court said it was “undisputed” that Murphy knew that Boone was a potential defense witness. The appellate court said that Judge Gaughan excused Murphy’s failure to call Boone as a witness because there was no evidence that Murphy knew what Boone would say. The court said that was “precisely” why Murphy’s performance was deficient.
The appellate court said that the failure to present testimony from Burrell’s grandmother about her car “was deficient for the same reason.” The court noted that Murphy testified that he did not recall ever speaking with Burrell’s grandmother or taking any steps to investigate whether Burrell would have had access to her car on the night of the shooting.
The court also concluded that Murphy’s decision not to introduce evidence of Burrell’s timecard was unreasonable. Murphy had testified that he discounted the timecard’s value to the defense because it did not show that Burrell was at work at the time of the shooting, because no one had personally seen him at work, and because someone else might have been able to sign in and out for him.
“Evidence directly contradicting the timeline of events provided by Morton and Hatcher—demonstrating that defendant was at work, rather than joyriding with them, for a two-hour period preceding the shooting—would have substantially advanced trial counsel’s strategy of attacking the credibility of the State’s eyewitnesses,” the appellate court said. “And any questions about the reliability of defendant’s timecard could have been addressed at trial by testimony from Mack authenticating the timecard as a business record and explaining that he had never had any reason to suspect that defendant made false entries on his timecards.”
“With no physical evidence connecting defendant to the shooting and no evidence of motive, the importance of introducing available evidence that undermined the credibility of the State’s eyewitnesses was paramount,” the court said. “Boone’s testimony and defendant’s timecard would have done just that, yet trial counsel failed to present either piece of evidence at trial.”
On October 24, 2019, Burrell was released on bond pending a retrial.
Represented by Tara Thompson and David Owens of the Exoneration Project at the University of Chicago Law School, Burrell sought to dismiss the case. In October 2021, Judge Gaughan denied a defense motion to dismiss the charge.
In 2022, another motion to dismiss the indictment was filed and in August 2022, Judge Gaughan again declined to dismiss the case. Two subsequent additional motions to dismiss the case also were denied.
On March 5, 2024, the prosecution dismissed the case.
– Maurice Possley
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