In two cases, Illinois appeals judges split on protections in criminal cases

In a pair of divided opinions involving Cook County prosecutions, the Illinois Appellate Court on Tuesday struck down a gun conviction that resulted after police stopped and searched a man in a park, but upheld an armed robbery conviction over the dissent contention that the prosecution was “based exclusively on problematic eyewitness testimony.”

In sharply worded opinions, two appellate judges laid out contrasting views on protections against improper searches and flawed evidence, and the countervailing need to protect public safety.

The majority opinion in the gun case, authored by Appellate Judge Michael B. Hyman, states that the information that caused the officers to stop and search Andre Holmes during a crowded 2012 picnic at Brainerd Park in the Washington Heights neighborhood on Chicago’s South Side amounted to nothing more than an anonymous tip.

Investigations that expose, influence and inform. Emailed directly to you.


“We, as well as the dissent, are rightly concerned about the scourge of gun violence in Cook County,” states the majority opinion, joined by Judge Aurelia Pucinski. “But that does not diminish or abrogate the protections afforded under the Fourth Amendment.”

A police sergeant told the officers that a park security guard had said there was a man in the park with a gun. The description the security guard offered: Black man, five and a half feet tall, wearing a purple shirt with black jeans.

Minutes later the officers spotted Holmes, who matched the description, and approached him. There was no evidence of a bulge in Holmes’ clothing, and he was not seen doing anything illegal. As officers stopped Holmes for questioning, one officer felt the outside of Holmes’s jeans pocket, feeling the trigger of a gun. Holmes was ordered to the ground within seconds and placed under arrest.

The majority noted that there was no evidence as to whether the security guard had actually seen the gun or was merely passing on information he was told, and how reliable the tip might be. “An all’s-well-that-ends-well approach, one that excuses an unconstitutional seizure because it turns up illegal activity, violates bedrock Fourth Amendment principles,” the majority opinion states.

The panel reversed the conviction, noting without the seized gun there was not evidence to support a finding of guilt.

In dissent, Mary Anne Mason wrote: “The havoc wreaked by individuals intent on bringing weapons into such locations is all too familiar, and tragically, the senseless killings that have occurred in recent memory are too numerous to list.”

The dissent also warned the majority’s logic could be extended to individuals who carry concealed weapons into hospitals or schools.

Mason noted that Holmes had chosen to illegally bring a gun into the park, “conduct that no citizen has a right to engage in and that the second amendment does not protect.”

She concluded: “The police conduct here was not only legally justified, it was imperative.”

In the second case, Derrick Macklin contended on appeal that the evidence was not sufficient to support his 2016 armed robbery conviction, and the resulting 40-year sentence. Mason this time was in the majority and Hyman in dissent.

The defendant contended that Cook County Associate Judge Luciano Panici wrongly convicted him of a 2011 armed robbery with a firearm in Harvey even though the eyewitness identifications were insufficient to prove his guilt beyond a reasonable doubt.

Wilfredo Garcia, the victim, and his uncle Jose Gomez, were walking down the street when a car pulled up, three men got out, and the middle one pulled a gun. Gomez contended a man said, “Your money or you die,” then shot Garcia in the right hand as the culprits took cash and other items from the two men.

Gomez, who speaks English, called 911. Garcia, who does not speak nor read English, did not speak to the officers directly. The court record does not detail what information the police were given beyond three Black men wearing black hoodies and baseball caps.

Ten days later, after Macklin was arrested on an unrelated robbery charge, Garcia and Gomez were brought to the station to view a lineup. Gomez signed an advisory form, which he explained to Garcia. They were met at the station by Detective Andrew Wallace, who later contended a Spanish-speaking officer whose name the detective could not recall explained the forms to Garcia.

In separate lineups that day, Gomez identified the defendant with what he said was 100 percent confidence, while Garcia identified the defendant with what he said was 70 percent confidence.

At trial, Gomez’s description became more precise, citing the shooter’s eyes and facial hair. The positive identifications Gomez and Garcia made at trial, as well as their descriptions of the defendant, were the sole evidence upon which the conviction was based. Garcia, too, identified Macklin with certainty by the time of trial.

But while Gomez contended he was able to view the assailant for between three and five minutes, Garcia said he only saw him for a few seconds.

Mason wrote for the majority that any discrepancies in the victims’ accounts of the robbery were a matter of credibility best decided by the trial judge, not by appellate lawyers. “Even if we assume that the entirety of the description was of three African-American males wearing black hoodies and baseball caps,” she wrote, “Gomez’s certain identification of Macklin as the offender would be sufficient to sustain the conviction.”

She wrote that if that was all Gomez and Garcia really saw, it was a “remarkable coincidence” that both picked Macklin out of lineups.

In dissent, Hyman responded, “What the majority refers to as ‘remarkable’ is eminently possible.” He added “What is truly remarkable is reliance on highly suspicious witness certainty coupled with the victims’ patently insufficient opportunity to view the offenders.”

He described his view of the evidence: “Immediately after the offense, the only description the two victims could offer was of three men in black hoodies and baseball caps. Ten days later, relying on fleeting glimpses of the offenders, the victims identified Macklin in a lineup muddled by cross-language confusion.”

Hyman cited the unreliability of eyewitness identification by strangers, noting the many cases of wrongful conviction based on eyewitness misidentification, and added, “Given this cursory and generic description, the fleeting nature of the offense, and the inherent distraction caused by the firing of a weapon, one might ask: How then can we rely solely on Gomez’s and Garcia’s assurance that they were certain, by the time of trial, of Macklin as the shooter?”

Especially in criminal cases, wrote Hyman, each appellate judge “has been entrusted with a solemn responsibility — to ensure that justice has been done to the appellant.”