Where a defendant seeks a certificate of innocence and has present evidence refuting every aspect of the state’s trial theory including corroborating recantations from all eyewitnesses, the testimony of a single witness being deemed unreliable is not sufficient to prevent the defendant from obtaining the certificate he seeks.

The 1st District Appellate Court reversed the decision of Cook County Circuit Judge Ursula Walowski.

James and Devon Hobson, brothers and in their early 20s, took a preteen cousin and his friend to a known drug block with a revolver intending to rob people for cash or drugs around 6:30 a.m. on Nov. 24, 2001. James Hobson testified that, to this purpose, they flagged down passing cars. A silverish car with a brown door pulled up and Devon Hobson walked up to the car, pointed the gun at the face of the driver, Norman McIntosh, opened the door and demanded money. They stole several bags of cocaine, compact discs, and approximately $20. James Hobson claimed McIntosh shouted that he was a member of the Vice Lords street gang, and they would come back to kill them. Later that day James Hobson testified that McIntosh returned, pointed a black gun out his window, and fired repeatedly. Devon Hobson was shot fatally, James Hobson was shot in the chest but survived. The two preteens identified McIntosh in a lineup, as did James Hobson.

McIntosh was arrested. At trial, McIntosh denied he was robbed and could not recall what he was doing on that day. However, his girlfriend Iashiskala Sims, testified she woke up with McIntosh that morning and that around 6 a.m. they went to the hospital because he complained of a “pain in his penis.” A nurse from the hospital confirmed this, saying he was discharged at 7:05 a.m. McIntosh was found guilty of first-degree murder, attempted first-degree murder, aggravated discharge of a firearm, and aggravated battery. He was sentenced to 45 years in prison in 2004. In 2015, he filed a successive postconviction petition and petition for relief from judgment, alleging actual innocence with affidavits from James Hobson and the two preteens recanting their trial testimony and identification and saying that the actual shooted was a member of the Vice Lords named Charles “Eggy” Smith, with testimony that he owned a car matching the description, unlike in the case of McIntosh where the car was never recovered. James stated he named McIntosh under pressure from his parents and the police, and told the two young accomplices to do the same.

McIntosh’s conviction and sentences were vacated via a request by the state’s attorney who moved to dismiss the case. In November 2016 McIntosh filed a petition for a certificate of innocence. The circuit court denied the petition, finding the evidence about the alternate shooter unpersuasive and the affidavits unreliable given the inconsistencies with testimony and the criminal background of the witnesses. McIntosh appealed.

On appeal the state filed no brief. The appellate court found it undisputed that McIntosh was convicted of multiple felonies. Moreover, McIntosh presented recantations of all witnesses and testimony that another man, Charles Smith, was the shooter, as well as evidence that Smith’s fingerprints, not McIntosh’s, were found on the CDs which had been stolen. The appellate court found that McIntosh sufficiently established his innocence by a preponderance of evidence, noting that even if James Hobson’s testimony is, as the circuit court found, unreliable, the remaining testimony and evidence debunks all the state’s evidence from trial, and that Smith was identified as the shooter by James Hobson prior to his fingerprints being discovered on the stolen CDs.

The appellate court therefore reversed the decision of the circuit court and remanded the case with instructions to enter a certificate of innocence.

State of Illinois v. Norman McIntosh
2021 IL App (1st) 171708
Writing for the court: Justice Mathias W. Delort
Concurring: Justices Joy V. Cunningham and Maureen E. Connors
Released: Oct. 29, 2021