| On September 3, 2017, 38-year-old Demarko Williams was arrested in Chicago, Illinois on a charge of possession of cocaine. The following day, he appeared in court. His case was continued until September 28 and bond was set at $75,000. He also was required to wear an electronic home monitoring (EHM) device.
After the hearing, Williams was fitted with the device around his ankle. He was given a monitoring unit to keep in his home. The unit receives a signal from the ankle monitor, so that the Cook County Sheriff’s Department, which is in charge of the devices, can monitor the wearer of the ankle device through the unit.
Williams said that he would be residing in apartment 1F at 1807 East 78th Street, with his aunt. He initialed an agreement that he would remain within the interior premises of the residence 24 hours per day unless granted approval for an absence by the sheriff’s department.
Four days later, on September 7, Cook County Sheriff’s investigator Dexter Keith went to the apartment due to a report that the band had malfunctioned or had been tampered with. When Keith arrived, a woman in the apartment yelled Williams’s name out of the back door that led to a rear porch. Williams did not respond or appear.
Keith had a device that showed that William’s EHM band was in the area. Keith and his partner were in the apartment for about 25 to 30 minutes. After notifying his supervisor that they did not locate Williams, they left, taking the monitoring box from the apartment.
When Williams did not appear for his September 28 court appearance, Cook County Circuit Court Judge Edward Maloney issued a warrant for Williams’s arrest.
On October 2, 2017, police arrested Williams near 11232 South Michigan Avenue, about six and a half miles from his aunt’s apartment, on a charge of attempted robbery. He was not wearing the EHM band.
On October 17, 2017, a Cook County Grand jury indicted Williams on a charge of escape. He was separately indicted for attempted robbery.
He went to trial in Cook County Circuit Court in March 2018. His defense attorney sought to admit evidence showing that Williams had been acquitted of the cocaine possession charge, but Judge James Linn denied that motion.
Sheriff’s investigator Keith explained that even if the band was removed or cut off, if it was in range of the home monitoring box, its signal would be picked up. He admitted that his body camera captured him saying during his visit to the East 78th Street apartment that Williams “was in the building.”
He also conceded that neither he nor his partner had searched the building’s common areas or had talked to any of the neighbors in other apartment units to see if Williams was present. He also did not look for the ankle band in apartment 1F.
Williams testified that in 2009, he had pled guilty to a charge of unlawful use of a weapon by a felon. He testified that he was equipped with the ankle monitor on September 4, 2017. He said he would be staying with his aunt, Debbie Williams, so the following morning, a sheriff’s investigator dropped him off there.
He said that when he was dropped off, the sheriff’s investigator told him not to leave the interior of the apartment building and “do not go outside.”
He told the jury that the building had 12 apartment units with a common enclosed back porch. His aunt’s apartment was a two-bedroom, one bath unit. Williams’s cousin lived across the hall on the first floor. His sister lived on the third floor, and her apartment could be accessed from a stairway on the enclosed back porch.
Williams testified that he was never told he had to stay in apartment 1F, and that he believed he would be in compliance as long as he did not leave the building.
Williams said that on September 7, 2017, he went to his sister’s apartment to use the bathroom and take a shower because his cousin was in the bathroom in his aunt’s apartment. No one else was in his sister’s apartment. He said that after he took a shower, he came back downstairs to his aunt’s apartment.
His aunt told him that the sheriff’s investigators had been there to fix the monitoring box. He said that he thought the investigators left with the box to let him know that the monitoring service “was no longer needed.”
Williams told the jury that he called the electronic monitoring call-in center and was placed on hold for hours. When no one ever came back to the call, he hung up. His aunt suggested that he turn himself in, but he did not. Nor did he phone the call-in center again.
He testified that he cut the ankle band off with scissors a couple of weeks after the investigators took the monitoring box from apartment 1F. He said he was aware that if he didn’t turn himself in, an arrest warrant would be issued.
During the prosecution’s rebuttal argument to the jury, the prosecutor sat in the witness chair and compared Williams’s credibility with that of the prosecution witnesses, noting in particular that Williams was a convicted felon.
During deliberations, the jury sent out a note asking, “Is the primary violation that the defendant knowingly violated the terms of the [EHM] by not being in the unit when the officers arrived[?]” The jury was instructed that it had heard the evidence and the instructions on the law, and to continue deliberating. Later, the jury sent a second note, asking, “What if we are at an impasse?”
At that point, the judge read in instruction to the jury that said: “In a large proportion of cases absolute certainty cannot be expected nor does the law require it. If you fail to agree on a verdict the case must be retried. Any future jury must be chosen in the same manner you were chosen. There is no reason to believe the case would ever be submitted to a new jury more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of any party. You should now retire and reconsider the evidence in light of the court's instructions.”
Not long after, on March 29, 2017, the jury convicted Williams of escape. Judge Linn sentenced him as a habitual offender to 10 years in prison.
In June 2018, Williams went to trial on the attempted robbery charge and was acquitted.
Williams appealed the escape conviction, contending that the judge should have allowed him to present the evidence that he had been acquitted of the cocaine charge (which was the reason he was on EHM), that the prosecutor committed misconduct by giving his rebuttal argument from the witness chair, and that the prosecution failed to present sufficient evidence of guilt.
While the appeal was pending, Williams was released on parole. However, in September 2022, Williams was arrested on charges of aggravated discharge of a firearm, being an armed habitual criminal, as well as various weapons charges.
On April 7, 2023, the First District Illinois Appellate Court overturned the conviction and ordered the case dismissed for insufficient evidence. It did not rule on the two other claims, though it said the trial judge should have ordered the prosecutor out of the witness chair because it was improper to give an argument from there.
The court said the EHM requirements were ambiguous and that the term “residence” was not defined. “[I]t’s not clear whether residence means one’s apartment, or also includes other spaces within one’s apartment building itself.”
“This is surprising, given the large number of detainees on EHM who we presume live in apartments and whose activities of daily living, such as retrieving mail and doing laundry, necessitate regular access to other parts of their apartment buildings,” the appellate court said. “Because of this ambiguity, we hold that the defendant could not have knowingly committed the offense of escape and, therefore, reverse his conviction.”
Williams had signed documents acknowledging the conditions of being on the EHM program. “Our review of the trial record reveals that the State failed to offer any evidence that the terms of Williams’s EHM required that he remain within his apartment unit and that he was not permitted to go to other places within his apartment building without the Sheriff’s approval,” the appellate court said.
That, the appellate court said, was “the fatal flaw in the State’s case.” The court also noted that the prosecution had failed to rebut Williams’s claim that he was inside the building at the time the investigator was there. The court said the ambiguity also “appeared to stymie” the jury, noting the questions posed by the jury during deliberations.
The jury’s questions “indicate to us that, based on the evidence offered by the State, the jury had difficulty understanding whether the terms of Williams’s EHM required him to remain in his apartment or whether he was permitted to leave his apartment unit so long as he stayed [within] his apartment building,” the court said. “The jury’s apparent confusion was entirely understandable.”
“[O]ne can only remain within the confines of an apartment so long before having to leave the unit to attend to the activities of daily living,” the court said. “Inexplicably there is nothing in this record that would have informed Williams that the terms of his EHM prohibited him from going to other parts of his apartment building without the Sheriff’s prior approval.”
The court said the knowledge element required to for an escape charge was negated by a combination of the ambiguity of the EHM program, the investigator’s admission that Williams was in the building when the investigator was there, Williams’s testimony that he was unaware he was required to stay within the confines of apartment 1F, and the lack of any evidence that Williams was specifically told he could not leave apartment 1F.
The court found the prosecutor’s use of the witness chair to give the rebuttal argument “particularly troubling.” The court noted, “The witness chair, as the name implies, is where a witness sits and gives evidence under oath to the fact finder. It is, indeed, the proverbial main stage of a trial. The only reason we can discern for a prosecutor (or any trial counsel for that matter) to deliver a closing argument discussing witness credibility from the witness chair is to attempt to cloak his words with the imprimatur of truth.”
The court cited a prior appellate decision that instructed “our trial judges to immediately evict a prosecutor from the witness stand, even if the defendant, as here, does not object.”
“Here, the prosecutor’s conduct (and the trial court’s failure to intervene) created a perception that favored the State’s case,” the court said. “We may not countenance conduct that creates the perception that our justice system is not even-handed.”
Ultimately, Williams was released on December 7, 2023. On January 17, 2024, Cook County Circuit Court Judge Erica Reddick granted Williams a certificate of innocence. He then filed a claim for compensation with the Illinois Court of Claims.
In August 2024, Williams pled guilty to being a felon in possession of a firearm. In return the charges of reckless discharge of a firearm and being a habitual criminal were dismissed. He was sentenced to six years in prison.
– Maurice Possley
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