U.S. ex rel. Hampton v. Leibach

• Decision Date: 14 October 2003
• Docket Number: No. 01-4186.,01-4186.
• Citation: 347 F.3d 219
• Parties: UNITED STATES of America ex rel. Patrick HAMPTON, Petitioner-Appellee, v. Blair LEIBACH, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

347 F.3d 219

UNITED STATES of America ex rel. Patrick HAMPTON, Petitioner-Appellee, v. Blair LEIBACH, Respondent-Appellant.

No. 01-4186.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2002.

Decided October 14, 2003.

Rehearing and Rehearing En Banc Denied November 17, 2003.

COPYRIGHT MATERIAL OMITTED

John F. Murphy, Douglas E. Whitney (argued), Office of the Federal Defender, Program, Chicago, IL, for Petitioner-Appellee.

Huma A. Khan (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellant.

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

In 1982, an Illinois jury convicted eighteen-year-old Patrick Hampton of deviate sexual assault, attempted rape, robbery, and aggravated battery, and the trial judge ordered him to serve an extended prison term of sixty years. Hampton filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging (among other things) that his trial counsel was constitutionally ineffective for failing to investigate and interview exculpatory eyewitnesses to the crimes of which he was convicted and for making promises in his opening statement to the jury that he did not keep. Following an evidentiary hearing, the district court granted the writ on these grounds. Hampton v. Leibach, 2001 WL 1518533 (N.D.Ill. Nov.29, 2001). The State has appealed. By order of the United States Supreme Court, Hampton has been released from prison during the pendency of this appeal. We affirm the district court's judgment.

I.

The offenses of which Hampton was convicted took place at a rhythm and blues concert held at the Chicago International Amphitheatre on the evening of December 29, 1981. Four bands performed at the concert: Chocolate Milk, Slave, Michael Henderson, and Zapp. Shortly after midnight, while the last band was still playing, a group of up to forty individuals marched up the aisle toward the stage, chanting "Black Gangster Disciples" and "Third World Disciple Nation," pounding their fists together, and making gang signals with their hands. Three Latino concert-goers — Hugo N., Martha N., and Denise M.¹ — were seated in the fifth row of the theater. As they arose from their seats and attempted to leave, the group in the aisle attacked them, removing their clothes, taking their wallets and jewelry, beating them, and sexually assaulting the two women. Security guards eventually intervened and rescued the three victims of the assault. None of the perpetrators was detained at the scene.

Fourteen year-old Keith Powell attended the concert and witnessed the attack. He later identified a number of former acquaintances from the Robert Taylor Homes (a public housing project) as having been in the group of people who had marched toward the stage of the theater. Hampton was among the individuals that Powell identified, although Powell would later testify that he did not actually see Hampton participate in the attack on the three Latinos.

Hampton was arrested on December 31, 1981. He was eighteen years old at that time and had never before been arrested.

Ultimately, nine individuals, including Hampton, were charged with the attacks. Six of them pleaded guilty and were sentenced to the short periods of time they had already spent in jail awaiting trial. Three defendants — Hampton, Ronald Mallory, and Ricky Knight — pleaded not guilty. They were tried jointly before three separate juries.

Attorney Jack Rodgon represented Hampton at the trial. Hampton's family had retained Rodgon, who previously had represented Hampton's brother. In advance of trial, Rodgon sought to withdraw as Hampton's counsel, asserting that his fees were not being paid and that Hampton and his family were not cooperating with him in preparation of the case. The trial judge, Hon. Earl E. Strayhorn, proposed to solve the problem by appointing Rodgon. Rodgon demurred, indicating there were "some problems" with representing Hampton. R. 48-1 at 129. The judge was unmoved and refused to release Rodgon from the engagement; he subsequently granted Rodgon's motion to continue as Hampton's counsel by appointment.

At trial, Powell testified that near the end of the concert, a group of men approached the Amphitheatre stage, making gang-related signs with their hands and chanting gang slogans. The three defendants were members of that group. Powell had known the defendants for two to three years; he had once lived in the Robert Taylor Homes where the defendants resided. Powell saw a disturbance break out near the stage. At some point during the melee, a naked woman ran up the aisle; he also saw Knight throw a pair of pants in the air. Although the stage lights were lit during this incident, the rest of the lights in the Amphitheatre were darkened. Following the concert, Powell took the 43rd Street bus back to the Robert Taylor Homes near 43rd and State Streets, where he was staying with his aunt. He saw each of the three defendants (among other individuals that he knew) on that bus. He also overheard a conversation in which someone — he could not say who — bragged about having "stuffed his fingers" into the vagina of a woman, R. 48-2 at 563, and having taken jewelry. Powell reported what he had seen and heard to the police on the afternoon of December 31. Powell testified that although Hampton was in the group that approached the stage, he had not seen Hampton attack anyone, nor had he heard Hampton say anything on the bus. Powell also testified that he had picked Hampton out of a line-up, and he was positive on this point. R. 48-2 at 624. However, the trial evidence would subsequently reveal that he had never picked Hampton out of a line-up. R. 48-3 at 1087.

Hugo N., one of the three victims of the assault, testified that he had attended the concert with his girlfriend, Denise M., his sister, Martha N., and Martha's boyfriend, Scott S. They sat in the fifth row on the main floor of the Amphitheatre. A number of disturbances preceded the assault in which he, Denise, and Martha were injured: In the intermission following the second act, Martha's boyfriend was struck in the head with a crowbar; during the third act, Hugo saw security personnel chasing someone through the theater; and during the intermission between the third and final acts, he saw another fight break out among concertgoers. During the last act, when Hugo, Denise, and Martha saw the group of men moving down the aisle toward the stage chanting "Third World Disciple Nation" and making hand signals, they decided to leave. (Scott S. had already left due to his injury.) As they attempted to do so, however, the group blocked their exit and attacked them. Hugo lost sight of Martha. As Hugo attempted to shield Denise from the group, they were both kicked and punched. His shirt was torn off, he felt people going through his pockets (his wallet, keys, and jewelry all were taken) and then the rest of his clothes were torn from his body. Denise was also being stripped of her clothes. Knight twice struck him and Denise with a chair, and on the second blow they both fell to the floor. At this point, a number of attackers had exposed their penises, and Hugo saw Knight put his in Denise's mouth, telling her "something like `here, take it.'" R. 48-2 at 766. A security guard eventually came to his aid; another helped Denise. They were taken to a first aid station and subsequently by ambulance to a hospital. Hugo later identified Knight from photographs and from a line-up. He did not identify Hampton as one of his attackers. Nor did he give the police a description of his assailants prior to the first line-up that he viewed. Hugo agreed that at the time of his assault, the last band was still playing, the air in the Amphitheatre was smoke-filled, and the only light was coming from the multi-colored stage lights.

Denise M. testified that when she, Hugo, and Martha attempted to leave the theater, their path was blocked by a group of fifteen to twenty men who were chanting and making hand signals. She and Hugo were pushed and shoved, and she felt hands grabbing her. Her clothing and jewelry were ripped from her person, and she felt fingers being pushed into her vagina. After someone twice struck them with a chair, she fell dazed to the ground along with Hugo. A number of the men had their penises out, and two of them approached her. Knight attempted to put his in her mouth (saying "here, take it," R. 48-3 at 1017) as did Mallory. Several men sat on her legs and one tried to pull them apart. Denise saw one of the attackers, whom she identified as Hampton, move his hands and she felt him try to force a cold, hard object into her vagina. Eventually, a security guard arrived and managed to break up the assault. Denise suffered a number of injuries from the attack, including a tear in her vagina that required surgical repair, a bladder infection, and scarring on her breast. From photographs and from a line-up, she subsequently identified Hampton as the individual who had attempted to force an object into her vagina. On cross-examination, Denise testified that she could not estimate how long she had seen this individual. She indicated that there were many men who were attacking her, and that she was concentrating on the faces of the men who tried to put their penises in her mouth.² Prior to viewing photographs and a line-up, she did not give a description of Hampton or her other assailants to the police.³

Martha N. testified that the assault began as a group of men began to march toward the stage, making signals at another group that was standing in front of the stage. As she looked over at the aisle, she saw Knight gathering men around him as they proceeded down the aisle. When she, Hugo, and Denise attempted to move into the aisle in order to leave, she found herself surrounded by a group of up to thirty or thirty-five men. Knight swung a chair at her and she ducked to avoid the blow. She then...