Pro Bono Client Released from Prison without Retrial
Jenner & Block is proud of its 2019 pro bono results:
On May 6, our client Kenneth “Ken” Smith was released from state prison after serving 19 years for a murder and robbery that he did not commit.
The firm first took Ken’s case in 2006 after a state appeals court reversed and remanded his conviction for murder and 67-year sentence for a new trial. Since that time, various teams led by Partner David Jimenez-Ekman have represented the client through a second trial, a direct appeal, a third trial, another direct appeal, and a federal habeas petition.
Following appeals of his habeas petition, the Seventh Circuit sent an order calling for Ken’s immediate release without conditions at the end of April. This means that he is free from prison and will not be required to report to parole or a probation officer.
“We are grateful that, at long last, the justice system recognizes Ken Smith’s innocence, ending his almost two-decade nightmare,” Mr. Jimenez-Ekman told the Northwest Herald upon our client’s release. “The evidence of Ken’s innocence is overwhelming, and it is a tragedy it took so long for the justice system to acknowledge that. Ken looks forward to the hard and bittersweet task of rebuilding his life.”
The charges against Ken stemmed from a botched armed robbery. In March 2001, the owner of a strip mall burrito shop in McHenry, Illinois, was shot to death after he chased two armed, masked robbers out of his store carrying a knife. The state had no physical evidence linking Ken to the crime. There were no fingerprints from Ken at the scene, no DNA evidence, and no blood that could be linked to him. Instead, Ken was convicted based on a “confession” of an alleged co-conspirator, which was (a) procured after police falsely told him that his friends had already confessed and implicated him, (b) riddled with major inaccuracies that demonstrated he had no knowledge of the crime, and (c) force-fed through leading questions that supplied the only correct information in the entire statement. When the firm first took Ken’s case, the Illinois Second District Appellate Court had reversed and remanded his conviction for a new trial on the basis of a blatant Confrontation Clause violation.
Ken’s second trial occurred in 2008, and resulted in a second conviction that was overturned in 2010, when the Illinois Appellate Court held that the trial court had improperly excluded evidence implicating a completely separate group of perpetrators and exonerating Ken.
Indeed, in the years Ken’s case had been pending to that point, compelling evidence emerged showing that the crime was committed by three individuals completely unrelated to our client and his friends. At Ken’s third trial in 2012, the team put on evidence that those other individuals confessed – unprompted – numerous times to friends, family members, and police; they knew details about the crime that had never been made public; and there was physical evidence corroborating those other individuals’ confessions. The other individuals were seen with cuts and scrapes in the days after the crime; they were connected with a gun that matched the characteristics of the bullets recovered from the victim and found at the scene; and they were riding around in a car on the night of the crime that later was found burned in a field with the help of an accelerant. However, the court excluded important evidence implicating the other group, including compelling evidence of their motive to commit the crime, and also limited the defendant’s ability to cross-examine the only eyewitness to the crime. After three days of deliberation, the jury, still only having heard part of the story, convicted Ken again.
After Ken’s direct appeal was denied in January 2015, the firm filed a federal habeas petition for Ken that was assigned to Judge Andrea Wood of the Northern District of Illinois.
In March 2020, Judge Wood granted the habeas petition and vacated Ken’s conviction and sentence, ruling that evidentiary errors violated his constitutional rights. The court found that the Illinois Appellate Court improperly affirmed evidentiary exclusions that violated his right to present a complete defense and his right to engage in effective cross-examination.
The court wrote that “[g]iven the weaknesses of the State’s case,” the evidentiary errors had a “highly significant effect” on the trial result. The court wrote that “the evidence of the [other group’s] involvement is highly compelling if not conclusive,” that the court was “confounded as to how [the] evidence could not give a rational jury reasonable doubt as to [Ken’s] guilt,” and that, “[e]specially in combination with the exceedingly thin evidence supporting [his] convictions, the court is concerned that a miscarriage of justice has occurred here.” The court granted Ken a new trial, which would have been his fourth on the same charges.
Though the court’s habeas decision was a significant victory, the battle to secure Ken’s freedom was far from over. The State appealed Ken’s habeas victory, and Ken cross-appealed, asking for a ruling that the evidence was insufficient to support his conviction and that he should be released without possibility of retrial. Mr. Jimenez-Ekman and Partner Katharine R. Ciliberti,presented oral argument on the appeal and cross-appeal in November 2020, at which point the panel of Seventh Circuit judges expressed strong skepticism about the constitutionality of the conviction. Chief Judge Diane Wood commented during the argument that “it [was] hard to imagine a case with thinner evidence” than what was presented against Ken.
On April 29, 2021, the Seventh Circuit went even further than the district court, holding that the evidence was constitutionally insufficient to sustain Ken’s conviction. The Seventh Circuit opinion, which reflects a caustic rebuke of the state appellate court’s decision affirming Ken’s third conviction, notes that the evidence implicating the separate group of perpetrators “casts a powerful reasonable doubt on the theory that Smith and Houghtaling were the robbers that night. . . . With such a serious possibility of a third party’s guilt,we are convinced as an objective matter that no rational trier of fact could have found Smith guilty beyond a reasonable doubt.” The Seventh Circuit concluded that “the trial evidence failed to support Smith’s conviction beyond a reasonable doubt and that the Illinois Appellate Court was not just wrong, but unreasonable, in holding otherwise.” The Seventh Circuit remanded the case to the district court, with instructions to grant the petition for a writ of habeas corpus unconditionally, and ordered Ken’s immediate release from state custody—a tremendous victory for our client after nearly two decades of trying to prove his innocence.
On Thursday, May 6, 2021, Ken Smith walked out of Lawrence Correctional Center as a free man. In the days since, he has been spending time with his family and starting the long process of adjusting to life on the outside.
In addition to Mr. Jimenez-Ekman and Ms. Ciliberti, Associate Elena M. Olivieri, and former associate Emma O’Connor. The past trial teams included Partners John R. Storinoand Gregory M. Boyle, and Paralegal Chris Ward.
Former Pro Bono Client Juan Rivera opens Barber College with Former Prison Guard
The firm represented Juan Rivera in the third retrial of charges for the 1992 rape and murder of an 11-year-old girl. That trial resulted in conviction, and the firm assisted Stanford Law School Professor Lawrence Marshall, former director of Northwestern University Pritzker School of Law’s Bluhm Legal Clinic Center on Wrongful Convictions, who briefed and argued Mr. Rivera’s appeal from that conviction.
In 2011, a unanimous three-judge panel of the Illinois Appellate Court for the Second District reversed Mr. Rivera’s conviction, finding insufficient evidence to support his conviction in light of the DNA evidence excluding him as the perpetrator. Years later, in 2014, authorities announced that DNA evidence from the case matched a potential suspect in a separate murder.
Earlier this year, Mr. Rivera opened Legacy Barber College, 1546 W. Howard in Chicago, with his former prison guard, Bobby Mattison. According to an article in the 49th Ward newsletter, Mr. Rivera “returned to his roots in Rogers Park to make good on a promise he struck in prison with a guard: to give back by helping youth in underserved communities carve a path towards a successful career.”
The barbershop has partnered with Evanston Township High School and Oakton Community College in Des Plaines to offer alternative programs and college credits. The program also offers education on financial literacy, customer service, and how to run a business.
In addition to working with Professor Marshall, the firm partnered with the Bluhm Legal Clinic Center on Wrongful Convictions on the case. The firm team included Partners Thomas Sullivan, Terri Mascherin and Andrew Vail.
In this video, Ms. Mascherin discusses the case.
Court Hails “Just Result” for Veterans as an “Example of the Class Action Concept Working at its Best”
The US District Court for the District of Connecticut has granted final approval to a class action settlement in which the US Army agreed to reconsider the less-than-honorable discharges of thousands of veterans with service-related mental health conditions.
Jenner & Block, with the Veterans Legal Services Clinic at Yale Law School, represents Iraq war veteran Steve Kennedy and Afghanistan war veteran Alicia Carson, pro bono, in a nationwide class action against the Army. Mr. Kennedy and Ms. Carson alleged that after the Army discharged veterans with less-than-honorable status on account of symptoms of post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other mental health conditions developed during their service time,the Army Discharge Review Board failed to account for those symptoms when it denied them upgrades in their discharge status.
On Monday, the court granted final approval to a settlement reached by the parties in November. In its opinion, the court described the settlement as “an example of the class action concept working at its best” because it “achieves a just result for many veterans, and for the Army they served.”
Under terms of the settlement, the Army will automaticallyreconsider thousands of discharge status upgrade applications under a lenient standard of review. Additionally, the Army will adopt procedural reforms, such as a universal telephonic hearing program, that will make it easier for veterans to applyfor upgrades in their discharge status and participate in related hearings.
During the final fairness hearing on the settlement last month,Judge Charles S. Haight Jr. had high praise for our pro bono work, saying on the record: “It's a fine thing … to see one of the great firms like Jenner & Block devote considerable resources to the pro bono representation of groups like these army veterans…”
Partners Susan J. Kohlmann and Jeremy Creelan led this matter, along with Associate Jacob Tracer and former associates Ravi Ramanathan and William Goldstein.
Read more in this press release from the Veterans Legal Services Clinic, in this Bloomberg article, and in this Stars and Stripes article.
Illinois Prison Project and Jenner & Block Welcome Home Kensley Hawkins
Kensley “Sonny” Hawkins, who turned 70 years old this year after spending over 39 years in prison, walked out of Shawnee Correctional Center last week a free man. Mr. Hawkins suffered from numerous serious medical issues that made him extremely vulnerable to COVID-19, and we are overjoyed that he returned home to his loving daughter and grandchildren.
Mr. Hawkins grew up in a single-parent household and was one of 10 children. To support his mother, he dropped out of high school and enlisted in the United States Army, where he simultaneously earned his GED, worked as a cook, and earned a National Defense Service Medaland and a parachute badge. After leaving the Army, Mr. Hawkins attended Chicago State University with dreams of becoming an electrical engineer but once again faced the overwhelming pressure of supporting his mother and his family. Mr. Hawkins dropped out of school yet again. In the midst of his financial stress, Mr. Hawkins’ brother committed suicide in their childhood home. Distraught and desperate, Mr. Hawkins agreed to be the get-away driver of the van used in a gas station robbery. The van was later traced back to a person who had been killed before the group went to rob the gas station. As a result, Mr. Hawkins was convicted for murder based on the conduct of his co-defendant, under the controversial theory of accountability.
Always industrious, Mr. Hawkins worked throughout his incarceration. He started as an upholsterer and cabinet maker at Stateville Furniture Factory. Skilled with his hands with a knack for engineering, Mr. Hawkins made products like desks, chairs, bookcases, and cabinets and was eventually promoted to “lead worker” at the factory. More recently, Mr. Hawkins ran the “Set Up” department of the Shawnee Metal Factory. If Mr. Hawkins has a product design, he can quickly prepare the sheet metal for welding and painting. Throughout his incarceration, Mr. Hawkins has been repeatedly recognized for his service and high-quality work and hopes to transfer some of the skills he’s acquired to his new life as a free man. Throughout his incarceration, Mr. Hawkins remained close to a large network of family and friends, including his devoted daughter Ramonia.
Mr. Hawkins was zealously represented by Department Counsel Lisa Schoedel at Jenner & Block, as part of IPP’s pro bono program. Ms. Schoedel's commitment and dedication to Mr. Hawkins and his case paid off: Last week, she received a call from the Illinois Governor’s Office, telling her that Mr. Hawkins would be coming home.
Jenner & Block Shortlisted in Chambers D&I Awards as “Outstanding Firm for Pro Bono”
The firm is proud to be one of only 10 firms in North America honored for pro bono service in the Chambers Diversity & Inclusion Awards. As Chambers D&I notes, the awards “shine a spotlight on role models and trailblazers in pro bono and corporate social responsibility as well as inclusion.” The firm is noted for the depth, breadth, and commitment to its nationally recognized pro bono program. Also recognized is Tracy Hannan, associate general counsel at client Exelon, who is shortlisted in the “Outstanding Contribution to Diversity and Inclusion” category. In partnership with the firm, Ms. Hannan secured the early release of a pro bono client who was sentenced to life in prison as a juvenile. The awards ceremony will be held virtually on June 17.
Working to Provide Outreach Services on Chicago’s West Side
Breakthrough is a non-profit organization that provides outreach services in underserved communities on Chicago’s West Side, partnering with those affected by poverty to build connections, develop skills, and open doors of opportunity. As a board member and long-time supporter of the organization, Jenner & Block Partner Terry Truax will participate in a virtual fundraising event launching the All In Campaign – the first-ever public look at upcoming plans in Breakthrough’s partnership with East Garfield Park. The event will take place April 22 at 7pm CT. To RSVP, please click here.
As co-chair of the Campaign, Mr. Truax has been instrumental in leading Breakthrough during the planning and execution of the program, as well as raising awareness of the growing need of support in the East Garfield Park community. To learn more about Breakthrough’s impact on the Chicago community, please click here.