The Case of Rico Clark

THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

CRIMINAL DIVISION

______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, )

)

Plaintiff-Respondent, )

v. ) Case No. 07 CR 0822103

) The Hon. Pamela J. Stratigakis,

RICO CLARK, ) Judge Presiding.

)

Defendant-Petitioner. )

______________________________________________________________________________

PETITIONER RICO CLARK’S OPPOSITION TO THE STATE’S MOTION

TO DISMISS PETITIONER'S POST-CONVICTION PETITION IN PART

Introduction

The State in its Motion to Dismiss tries to deny that this case and post-conviction proceeding centers squarely around Chicago Police Department Detectives Brian Forberg and Kevin Eberle’s misconduct. They ask this Court to now disregard a wealth of evidence that Forberg and Eberle coerce witnesses into falsely identifying their targets, including that they did so to three witnesses in this case against Rico Clark, causing Mr. Clark to be convicted of a murder he did not commit. The State rightfully acknowledges that a third stage hearing is necessary to hear from a new eyewitness to the crime who identifies the perpetrators and exonerates Mr. Clark, but it argues that evidence of Forberg and Eberle’s pattern and practice of misconduct and new revelations of misconduct in this case should not be considered at a third stage hearing. These arguments fail.

By coercing witnesses, Forberg and Eberle fabricated all the evidence that led to Rico Clark’s conviction. They failed to obtain any physical evidence, forensic evidence, any inculpatory statements, any codefendant testimony, or any corroborating evidence that linked Mr. Clark to this crime. All three witnesses who later connected Mr. Clark to Damion Kendricks’ murder initially did not identify Mr. Clark as one of the assailants. Forberg and Eberle then interviewed each witness months later and only then did each witness identify Mr. Clark as the shooter to police and later to a grand jury. At trial, two of these witness, Kevin Eson and Demetrius Murry, recanted their identifications, telling the jury that the detectives coerced them to lie in their statements to police and to the grand jury. The third, Leroy Moore, named Mr. Clark as the shooter of his brother-in-law Kendricks at trial. Forberg testified and denied that he coerced any of the witnesses.

At closing, the defense argued that Forberg and Eberle coerced the witnesses, and that Mr. Clark was innocent. In response, the State stated at closing, “there is simply no reason that all of these people… get together and fabricate… come up with this grand conspiracy that everybody pointed to Rico Clark and [codefendant] Corey Manuel. There is no conspiracy here, ladies and gentlemen. There is not one iota of evidence that there is a conspiracy.” Tr. at NN 157; Pet. Exh. 41.

Mr. Clark was convicted, but Manuel was acquitted. The only difference was that Manuel was only identified by the two recanting eyewitnesses, Eson and Murry, and not by Moore, the only eyewitness who did not recant at trial.

A lot has happened since Mr. Clark’s 2009 trial. Voluminous evidence of misconduct by Forberg and Eberle have come to light. Just last year, the Cook County States Attorney’s Office (“CCSAO”) acknowledged that Forberg has a pattern and practice of coercing witnesses to falsely identify targets. Pet. 21 at pp. 75 (“there is extensive evidence showing a pattern and practice of abusive and coercive witness interrogations perpetrated by” Forberg and his partner in the Jackson case). Convictions have been vacated because of their misconduct. And now, the final piece of the puzzle, Mr. Moore, the only non-recanting witness at Mr. Clark’s trial, has come forward to say that he too was harassed by Forberg and Eberle, causing him to testify “untruthfully because [he] believed it would get them to stop” threatening and coercing him. Pet Exh. 22 at ¶15.

Mr. Clark has spent nearly twenty years trying to prove his innocence and that Forberg and Eberle framed him by coercing witnesses to falsely identify him. The State asks this Court to consider none of this information about these detectives at a third stage hearing. The Court should deny the State’s motion to dismiss entirely, so that Mr. Clark can finally have his day in court and allow him the chance to prove that he is innocent and that detectives Forberg and Eberle conspired to frame him by doing what they did in case after case; namely, coercing witnesses to make false statements and testify falsely to obtain wrongful convictions.

All of Petitioner’s Actual Innocence Evidence Should Be Considered at a Third Stage Hearing

Petitioner’s evidence of actual innocence consists of: Calvin Merritte’s affidavit, an eyewitness to the murder, who has come forward after Mr. Clark’s conviction, who states he saw the perpetrators of the Kendricks murder, identifies them by name, and knows that neither was Petitioner; the affidavit of Leroy Moore who now recants his trial testimony and says he was coerced by Forberg and Eberle to falsely identify Mr. Clark; and a wealth of evidence of Forberg and Eberle’s long pattern and practice of coercing false statements and testimony from witnesses.

In seeking to dismiss Petitioner’s claims, the State concedes that a third-stage hearing should take place with regards to the previously unknown eyewitness, Calvin Merritt. This evidence was unknown to Petitioner at the time of trial; Merritte is not listed in any police report. The evidence, if taken as true which it must at this stage, is material, not cumulative, and if believed would likely have led to a different result at trial. The State only asks “to challenge Petitioner’s actual innocence claim based on the affidavit of Calvin Merritte at an evidentiary hearing and will file an answer to that … after the Court rules on the present motion.” MTD at ¶6. This concession, while welcome and appropriate, is far too narrow. It ignores the fundamental reason why Mr. Clark was wrongfully convicted: namely, the detectives who fabricated this entire case against him. The State would prefer a hearing focused only on Mr. Merritte because it completely sidesteps Forberg and Eberle’s misconduct, the key issue at trial, because Merritte was never interviewed by them.

The State seeks to limit Petitioner’s actual innocence claim by first arguing that Leroy Moore’s affidavit– recanting his trial testimony and blaming Forberg and Eberle for coercing him– “is not evidence that makes a persuasive showing that the petitioner did not commit the charged offense.” MTD at ¶15. The State does not challenge whether this evidence is new, material, or cumulative. Instead, the State attacks only its conclusiveness. The State claims that Moore’s affidavit is only a recantation of his trial testimony and “[a]t no point… does Moore claim Petitioner was not present, was not a participant in the offense or was not the shooter.” Id.

While Petitioner agrees that the affidavit does not have this specific language, the State ignores the statement’s import, especially in combination with the other eyewitnesses’ testimony at trial. In his affidavit, Moore does not just say that he did not witness the shooting— he states that Forberg and Eberle:

“continued to harass [him] repeatedly”;

“repeatedly asserted that [he] knew details about the shooting that [he] did not know”;

“implied that [he] was involved in the shooting,”; and

“pressured [him] into making statements [he] knew were not true,”

Moore further states that their conduct caused him to:

“agree[] with facts about [Mr. Clark] that Detectives Forberg and Eberle implied that [he] knew”;

“agree[] to make [those] statements”; and

“testify[y] untruthfully because [he] believed that it would get them to stop.”

Pet. Exh. 22.

If true, which at this stage it must be taken as, then it not only means that Moore could not identify the shooter which takes out the final leg of the State’s three-legged table, but it also further supports the two prior recanting claims of Eson and Murry, who testified under oath that Forberg and Eberle coerced them into falsely identifying Mr. Clark. This evidence also removes the only difference between Mr. Clark’s case and the acquitted codefendant, Corey Manuel’s, case.

In terms of an actual innocence claim’s conclusiveness prong, the evidence “need not be entirely dispositive,” People v. Robinson, 2020 IL 123849, ¶48 (citations omitted), which is what the State is arguing when it says the evidence is not persuasive because Moore does not say “Petitioner was not present, was not a participant in the offense, or was not the shooter.” MTD at ¶15. This “total vindication or exoneration” standard to support a claim of actual innocence is not the correct standard. The ultimate question is “whether the evidence supporting the postconviction petition places the trial evidence in a different light and undermines the court’s confidence in the judgement of guilt.” Robinson, 2020 IL at ¶48 (citations omitted). In a case where the State’s rebuttal at closing focused on there being no evidence of a conspiracy to frame Mr. Clark and no coerced witnesses, evidence that Moore was threatened and coerced to testify, in a case where two other witnesses said the same thing at trial, “places the evidence in a different light” and undermines “confidence in the judgement of guilt.” Id; see Pet. Exh 41.

In relation to the pattern and practice evidence, the State does not argue that the pattern practice evidence as pleaded fails to meet the standards of an actual innocence claim, i.e., that the evidence is new, material, noncumulative, and so conclusive it would probably change the result on retrial. Instead, the State argues that both Forberg and Eberle’s pattern and practice of coercing witnesses to falsely identify and testify against their targets and Moore’s affidavit are “used to impermissibly support his due process and Brady claims.” MTD at ¶16.

This is the familiar bootstrapping argument based on People v. Hobley, 182 Ill. 2d 404 (1988), which has been rejected by the Illinois Supreme Court. See People v. Flournoy. 2024 IL 129353. Flournoy explains that evidence can be used to plead and support alternative claims of actual innocence and constitutional error, but only one those claims can succeed. Id. at ¶68 (emphasis added). An example is helpful to explain Hobley and Flournoy: if the information in Moore’s affidavit is determined to be new, then it goes to actual innocence; if it is determined to be withheld then it would go towards a Brady claim; and if it were determined to be not suppressed and discoverable by the trial attorney it would be evidence of ineffective assistance of counsel. People v. Gonzalez, the case the State cites for its proposition, is not good law after Flournoy (if it ever was). See 2016 IL App (1st) 141660, ¶30. Thus, Petitioner can alternatively plead actual innocence, Napue, Brady, and ineffective assistance of counsel claims based on Moore’s affidavit and Forberg and Eberle’s pattern and practice of coercing witnesses to make false identifications. Petitioner’s actual innocence claim in its entirety should therefore advance to a third stage hearing.

Recantations Should Not Be Dismissed Out of Hand and Must Be Taken as True at This Stage

In responding to Petitioner’s claim that the State used the three eyewitnesses’ perjured testimony, the State cites case law that regards recantations as inherently unreliable. MTD at ¶20. But the case law does not say that recantations are to be disregarded out of hand, especially in pattern and practice cases. Indeed, the case law says just the opposite: “recantation statements should not simply be dismissed without further analysis.” People v. Montanez, 2016 IL A¶(1st) 133726 ¶27 (citations omitted)); People v. Serrano, 2016 IL App (1st) 133493, ¶26. Just as in the Montanez and Serrano cases where a detective’s pattern and practice of misconduct was at issue, there are good reasons to doubt the veracity of this case’s eyewitnesses’ testimony and good reasons to believe the veracity of the recantations. Each of the witnesses did not immediately tell police they could identify the perpetrators and only did so months after the shooting. Two state they were threatened by Forberg and Eberle with criminal justice consequences if they did not identify Mr. Clark. Tr. at KK-76; Pet. Exh. 22 at 13-14. In addition, one of Mr. Clark’s co-defendants, Marcellus French, claimed that his inculpatory statement was coerced by Forberg and Eberle. Eventually the court suppressed French’s confession which led the State to dismiss all charges against him. Because of this alone, the prosecutors knew or should have known that the eyewitnesses’ testimonies were also false.

Moreover, at this stage of the post-conviction proceeding, all well-pleaded allegations are to be taken as true unless positively rebutted by the record. People v. Pendelton, 223 Ill. 2d 458, 473 (2006). Because well-pled facts are taken as true, the court must refrain from making credibility determinations or fact-finding. People v. Domagala, 2013 IL 113688, ¶33. Thus, because the witness recantations are not positively rebutted by the record, they must be taken as true as this stage. This means that each of the three eyewitnesses were coerced into falsely testifying at either the grand jury proceedings and/or at trial. Each witness has attested to this under oath, either through testimony or affidavit.

The State relatedly claims that “Petitioner provides no independent corroborative evidence of anything put forth in Moore’s affidavit to establish that his previous testimony at trial was perjured.” MTD at ¶22. The State cites no authority that would require such “independent corroborative evidence.” Id. But in any event, Petitioner has brought forward such evidence. Each of the three eyewitnesses tell a similar story about them being coerced by Forberg and Eberle to falsely identify and testify that they saw Mr. Clark commit this act; two also identify codefendant Corey Manuel. See People v. Montanez, 2016 IL App (1st) 133726 ¶28; People v. Serrano, 2016 IL App (1st) 133493, ¶27 (pointing out there were reasons to be concerned with the recanters testimony at trial including that he was a heroin addict, had a lengthy criminal record, he received a favorable sentence, and that other witnesses in the case claimed to have been also coerced). Moreover, each witness has made statements against their own interest by admitting that they testified under oath untruthfully. Not only this, but Petitioner presents numerous instances in other cases where witnesses were coerced by these same two detectives to falsely identify a suspect. See Pet. at pgs 19-22.

Evidence of Forberg and Eberle’s Pattern and Practice of Misconduct Is Sufficiently Similar to the Three Witnesses and a Co-Defendant’s Claims That Forberg and Eberle Coerced Their False Statements

For nearly all of Petitioner’s claims, the State contends that Petitioner’s evidence of Forberg and Eberle’s pattern of misconduct does not support his claims of misconduct in this case. MTD at ¶¶ 22-24; 32-35. The State relies on People v. Kevin Jackson, 2021 IL 124818, to argue that Petitioner’s allegations of misconduct either are irrelevant, unsubstantiated, or lacking and thus should not be considered. MTD at ¶¶ 23, 32 & 39.

Relevant Evidence Supports That Forberg and Eberle Have a Pattern and Practice of Coercing Witnesses to Make False Statements

First, the State argues that the Cook County State’s Attorney’s Special Assistant State’s Attorney’s reinvestigation report (“reinvestigation report”) in the Kevin Jackson case, which concludes that Forberg and others have a pattern and practice of coercing witnesses to falsely identify suspects, case does not corroborate Petitioner’s claims that it occurred in his case. The State first points to portions of the reinvestigation report where there are allegations against Forberg that do not involve Eberle. MTD at ¶23. They also point to misconduct by Forberg and others that does not involve witness coercion. Id.

While the reinvestigation report does contain instances of misconduct involving other detectives (e.g. Forberg’s other partners) and instances involving dissimilar types of misconduct (e.g. physically abusing suspects to confess), Petitioner cites to sufficiently similar cases all involving Forberg, and mostly with Eberle. where they coerce and/or threaten witnesses to falsely identify a suspect. See Pet. at 19-22.

Unlike the situation in People v. Jackson, many of the allegations contained in Petitioner’s pattern and practice claim involve Forberg and often Eberle coercing witnesses to falsely identify suspects and are supported by reinvestigation report which relies on opinions, testimony, affidavits, and other evidence it adduced during the over yearlong reinvestigation. See Pet. at 19-22, paragraphs i, iv, v, vi, and vii. The reinvestigation report includes other similar claims of misconduct uncited in the petition including:

viii. Andrew Mosley where witness Bryant Anderson initially did not see the shooter, but identified Mosley after Forberg told Anderson that if he didn’t, then he would be charged himself and not go home. Anderson disavowed his statement to police at trial and the grand jury; Pet. Exh. 21 at 49 & Pet Exhs. 33, & 34.

ix. Caleb Charleston’s case where Ashmona Willias gave an eyewitness statement but repudiated it ag trial saying she was threatened harassed and told additional charges would be coming if she did not make the coerced statement; Pet. Exhs. 21at 50 & Pet. Exh. 35;

x. Antonio Perry’s case were witness DeAndre Boozer said that Forberg made clear the answers he was looking for in his interview; Pet. Exhs. 21 at 51-52 & Pet Exh. 36;

xi. Mark Scott’s case where witness Joe Ducket testified he went to the station to speak with Forberg and his partner and Ducket described the shooter but he was shown two photos of individuals that Forberg and his partner insisted was one of the shooters; Pet. Exh. 21 at 52 & Pet. Exh. 37.

Thus, Petitioner has satisfied the requirements to allege relevant pattern and practice evidence.

A Judicial Finding of Wrongdoing Is Not the Standard Required by Law to Support Pattern and Practice Evidence

Relying in part on the Illinois Supreme Court’s opinion in Jackson, the State also argues that only judicial or quasi-judicial findings of Forberg and/or Eberle’s wrongdoing by other courts can be relied upon by Petitioner as evidence that there is a pattern and practice of misconduct. MTD at ¶23 (“The report does not contain the results of any proceedings where Detective Forberg was found to have engaged in misconduct, with the exception of one unspecified citizen complaint in 2015 that was sustained.”)

First, the State has not “cited to any authority that a pervious judicial determination of” wrongdoing is required. Smith, 2022 IL App (1st) 201256-U, ¶ 98 (reversing circuit court’s denial of relief upon referral from the Illinois Torture Inquiry and Relief Commission because circuit court “discounted much of the defendant’s evidence [of pattern and practice of misconduct] because none of the defendants in cases presented achieved a specific finding from a court on the merits that they were abused by the subject detectives.”)

More importantly, a judicial finding of wrongdoing is not what the law requires to adequately support a pattern and practice of misconduct. Under People v. Patterson, “[p]rior allegations of police abuse may be relevant when they involve the same officers, involve similar methods of torture, and occur near the time of the current allegations.” People v. Anderson, 2026 IL App. (1st) 200462-C, ¶182 citing, Patterson, 192 Ill. 2d 93, 115 (2000), citing Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993). In a similar scenario involving a pattern of abusing suspects, the First District stated citing the Jackson opinion: “[w]hether a prior allegation was deemed unfounded by OPS does not indicate whether it has ‘sufficient similarity’ to defendant’s alleged abuse, which is the pertinent relevance inquiry.” Id. at ¶ 192, citing Jackson, 2002 IL 124818, ¶ 34, citing Patterson, 192 Ill. 2d at 144-45; see also People v. Blalock, 2022 IL 126682 ¶ 30 (petitioner supported his pattern and practice claim with a printout of 2012 Torture Inquiry Relief Commission database of cases asserting abuse by the detectives in the case, four affidavits from individuals who claimed misconduct, and copies of complaints from the CPD Office of Professional Standards alleging physical and verbal abuse, and appellate court decisions which established cause to file a successive petition); People v. Smith, 2022 IL App (1st) 201256-U, ¶99 ( “Even if largely unproven in courts of law, the sheer number of allegations and the similarities among them are disconcerting to say the least. Moreover, although they are not definitive findings by a court on the merits, many of the documents produced by defendant go somewhat beyond bare allegations.”). In People v. Tyler, the appellate court specifically cited three previously unsustained allegations of misconduct against the investigating detectives as evidence of a pattern and practice. 2015 IL App (1st) 123470, ¶¶ 67, 70-71. The court recognized that, if presented at trial, the evidence could have reasonably undermined the detectives’ credibility. Id. at ¶¶ 170, 172-3, 186.

There Are Judicial Determinations of Forberg and Eberle’s Misconduct

Moreover, even if it were the law, there are both judicial determinations and the CCSAO’s own admission. Since Jackson’s 2021 opinion the State relies upon, there has been a judicial finding that Forberg coerced four witnesses to falsely identify him in his case. People v. Jackson, 2024 IL App (1st) 241356, ¶ 77; Pet. Exh. 38. The appellate court determined that the pattern and practice evidence of Forberg’s coercing witness to falsely testify “is sufficient to confirm for any reasonable person that the State’s witnesses were not truthful in their out-of-court statements and were honest when they testified at trial that they only gave those statements because of intense pressure and improper coercion by police.” Id. The State fails to acknowledge that Jackson’s conviction was overturned in an appellate court opinion that came out only days after Mr. Clark filed his Post-Conviction Petition and well before the State filed its Motion to Dismiss.

Jackson’s case is on all fours here in so many ways. In that case, Forberg, coerced four eyewitnesses to make false statements, three of whom testified before the grand jury. Id. at ¶¶ 77, 11. All recanted at trial insisting they were coerced to falsely identify Jackson by Forberg and his partner. Id. at ¶ 1. In vacating the conviction, the appellate court determined that the reinvestigation report, that Petitioner relies upon, “included additional and compelling evidence” that supported that the eyewitnesses were “harassed, coerced, threatened, and badgered into giving incriminating statements” about Jackson. Id. at ¶ 75. Unlike the prior appeal that the State relies on where it found the compiled pattern evidence was insufficient, “[t]he reinvestigation report, however, contains 10 pages detailing additional allegations that have continued to emerge, including instances in which Detective Forberg took statements from witnesses who later recanted….” Id. at ¶ 76. The court found that the report “certainly added” to Mr. Jackson’s claims that his eyewitnesses were coerced. Id. The court then acknowledged “Detective Forberg and his unit had a long history of coercing false statements to secure convictions…” Id. at ¶ 80.

Besides Jackson’s case, Maurice Patterson’s conviction was reversed and later received a settlement from his civil lawsuit. See Pet. at 19. In Terrance Lofton’s case, after Forberg and Eberle coerced a witness to make a false identification, that witness recanted and the charges against Lofton were dismissed. Id. at. 20; see also Pet. Exhs. 44-49. His federal lawsuit against Forberg, Eberle and others was only dismissed because Lofton was never wrongfully convicted. In Bridewell, the charges were dismissed by multiple witness statements implicating her. Id. at 21. In all these circumstances, the defendants were either exonerated or had their charges dismissed despite witness statements implicating them– that would tend to suggest that the statements taken were coerced as the witnesses alleged. Smith, 2022 IL App (1st) 201256-U, ¶ 99.

Because the Cook County States Attorney’s Office Admitted That Forberg Has a Pattern and Practice of Abusive and Coercive Witness Interrogations It Should be Judicially Estopped from Arguing Otherwise

Finally, the CCSAO should be judicially estopped from contesting the existence of the detectives’ pattern and practice of misconduct. The reinvestigation report itself determined that “there is extensive evidence showing a pattern and practice of abusive and coercive witness interrogations perpetrated by” Foster and his partner in that case. Pet. Exh. 21 at 76. Based on the reinvestigation, Special Prosecutors appointed by the CCSA along with a representative of from the office requested that Jackson’s convictions be vacated before both the district and appellate courts. See People v. Johnson, 2025 IL App (1st) 231497. Judicial estoppel applies when the party to be estopped “has taken two positions (2) that are factually inconsistent (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged and (5) having succeeded in the first proceeding and received some benefit from it.” People v. Palmer, 2021 IL 125621, ¶74 (acknowledging that the “State, as is appropriate, has not attempted to challenge the misconduct evidence” where defendants argued that the State was collaterally estopped from challenging that detectives engaged in a pattern and practice of misconduct). The conditions have been met here.

Petitioner’s Evidence of Forberg and Eberle’s Pattern and Practice of Misconduct Should Advance to a Third Stage Hearing

For all of these reasons, Petitioner’s evidence, the same as relied upon by Kevin Jackson, who had his conviction vacated and charges dismissed, and the CCSAO relied on to reinvestigate Jackson’s case, adequately supports his claims and the State’s motion to dismiss should be denied.

Petitioner Is Exhausting His Federalized Brady Claim and the State Should Have Disclosed What It Knew About Petitioner’s Co-Defendant’s Suppressed Statement

Petitioner acknowledges that under current Illinois Brady law of People v. Orange, 195. Ill. 2d 437 (2001); People, v. Mahaffey, 194 Ill. 2d 154 (2000) (overruled on other grounds) and People v. Wrice, 2012 IL 111860, ¶ 75, that the imputation of knowledge to prosecutors of police misconduct in unrelated cases known only to individual officers where the nexus between the other cases of alleged abuse and the defendant’s case was not known until years after defendant’s trial. However, as far as Petitioner knows and apparently the State also knows, this interpretation has not been adopted necessarily by Federal Court interpreting the United States Constitution. See MTD at ¶ 27 (“our supreme court has not extended such imputation of knowledge” citing only state and not federal cases). Thus, Petitioner brings this claim in part so that it is exhausted for federal habeas corpus purposes.

It is also worth noting that the CCSAO, as of the time of this filing, publishes on its website a “Brady Giglio Do Not Call List” of individual officers that the office determined will not call as witnesses to testify in cases because of conduct in prior cases that could be impeached if they testified, e.g., coercing witnesses to falsely identify someone or testified untruthfully. See Pet. Exh. 42; see also https://www.cookcountystatesattorney.org/sites/g/files/ywwepo351/files/document/file/2024-10/Brady%20Giglio%20Do%20Not%20Call%20List_10.23.24.pdf. The list was officially released to the public in July of 2023 after a prior version was published by a news agency after it was obtained as part of a lawsuit. See https://news.wttw.com/2023/07/17/kim-foxx-releases-do-not-call-list-officers-who-won-t-be-used-witnesses-trial. The fact that the CCSAO has had such a list, where it must compile and keep track of allegations/findings of officers’ misconduct and the fact that it is called a Brady list should cause the Illinois Supreme Court to revisit its prior rulings.

Petitioner also believes that State’s attorneys in this case were aware of Forberg and Eberle’s misconduct in this case; namely, Forberg and Eberle coercing the involuntary confession of co-defendant Marcellus French and failing to read him his Miranda rights. Marcellus French was a co-defendant and 17 at the time of the crime. Forberg and Eberle interrogated French over two days and French gave six statements to police implicating himself, Manuel and Mr. Clark. French’s counsel filed a motion to suppress the statement based on voluntariness and it was later amended to include failure to give Miranda to Mr. French was granted and the case was dismissed. Thus, Forberg and Eberle’s misconduct need not be imputed to the prosecutors in this case because they were personally aware.

Petitioner’s Ineffective Assistance of Counsel Claims Are Supported by Extra Record Evidence and Should Be Advanced to a Third Stage Hearing

The State initially argues that Petitioner’s ineffective assistance of counsel claim for trial counsel’s failure to challenge the indictment is waived as it could have been raised on direct appeal. While an ineffectiveness claim may be raised on direct appeal, the claim is supported by new evidence in the form David Weiner’s severe addiction issues and other mental health problems that later led to disciplinary proceedings and eventually his license being revoked. The evidence is new and Petitioner could not have discovered this information earlier through due diligence and thus his claim is not forfeited.

The State also argues that Petitioner’s ineffective assistance of counsel claim for failing to properly impeach the State’s key identification witness, Moore, with evidence that contradicted Moore’s testimony should be dismissed because of res judicata in that Petitioner “previously addressed Leroy Moore’s testimony on direct appeal in the form [sic] a challenge to the sufficiency of the evidence.” MTD at ¶37. Besides the fact that the issue on direct appeal was not ineffectiveness but instead sufficiency of the evidence, Petitioner has new extra record evidence that he could not have found previously through the exercise of due diligence. See People v. Ward, 187 Ill. 2d 249, 257 (1999) (citing People v. Orange, 168 Ill. 2d 138, 167 (1995) (“rules of waiver and res judicata will be released where the facts relating to the issues of counsel’s incompetency do not appear on the face of the record”)

The State argues that counsel was not ineffective for failing to seek to have the indictment dismissed because Petitioner cannot establish that he was denied due process “with certainty.” MTD at ¶ 41, citing People v. Rivera, 72 Ill. App. 3d 1072 (1038 (1st Dist. 1979). The State points to inconsistencies between Murry and Eson’s testimony, Forberg’s denial of their claims of coercion, and ASAs’ testimony surrounding the circumstances of their statements and grand jury testimony. To the extent that Forberg and Eberle’s misconduct was discoverable by defense counsel pretrial through the exercise of due diligence, e.g., coercing French to give a false confession, which could have allowed Petitioner to show with certainty that he was denied due process by further supporting Murry and Eson’s allegations of coercion.

The State also argues that Petitioner’s ineffectiveness claim for failing to impeach Moore with evidence that contradicted his trial testimony fails because Petitioner did impeach Moore on discrepancies at trial in various ways, including by stipulation, and the claim is not well-pled. Again, to the extent that any of the new evidence uncovered by Petitioner that supports his other claims is considered to have been discoverable by Mr. Clark’s trial attorney through the exercise of due diligence, Petitioner asks that this evidence support his claim that trial counsel was ineffective for failing to impeach the only non-recanting witness, who later recants and claims coercion.

Finally, if this Court determines that any of the recently uncovered evidence that supports any of his other claims could have been discovered prior to trial through due diligence, then Petitioner argues that he was deprived the right to the effective assistance of counsel for failure to investigate and present the exculpatory evidence in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 8 of the Illinois Constitution. For example, Petitioner’s claim that he received ineffective assistance of counsel for failing to move to have the indictment dismiss could be supported by Forberg and Eberle’s pattern and practice of coercing witnesses to falsely make statements and testify if the evidence is considered available to Petitioner at the time of trial through the exercise of due diligence. Additionally, if this Court were to determine Leroy Moore’s recantation was available to trial counsel, then this would support Petitioner’s claim that he was ineffective for failing to have the indictment dismissed because the violation of due process would have been further established with certainty.

Conclusion

For all of the reasons both in the Petition and above, Mr. Clark deserves to have his day in court, where he can finally adduce evidence that was not available to him at trial and withheld from him that Forberg and Eberle coerced all three witnesses in his case, months after the crime, to falsely identify him and that Forberg and Eberle did so in numerous other cases throughout their time as detectives in the Chicago Police Department leading to others who were wrongfully convicted of crimes they did not commit.

Respectfully submitted,

By:

________________________________ ________________________________

Antonio M. Romannuci Gregory Swygert, ARDC # 6293915

Joshua M. Levin Swygert Law LLC

ROMANUCCI & BLANDIN, LLC 55 E. Monroe St., Ste. 3250

321 North Clark Street, Ste. 900 Chicago, IL 60603

Chicago, IL 60654 Phone: (312) 720-5861

Phone: (847) 469-4669 Greg@Swygertlaw.com

Fax: (312) 458-1004 Cook County Bar No. 49157

aromanucci@rblaw.net

jlevin@rblaw.net

Firm No. 35875

________________________________

Edmund P. Wanderling

2505 Des Plaines Ave.

Riverside, IL 60546

Phone: (708) 443-5400

Firm. No. 17726

Law6447@gmail.com

Attorneys for Rico Clark

THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

CRIMINAL DIVISION

______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, )

)

Plaintiff-Respondent, )

v. ) Case No. 07 CR 0822103

) The Hon. Pamela J. Stratigakis,

RICO CLARK, ) Judge Presiding.

)

Defendant-Petitioner. )

______________________________________________________________________________

CERTIFICATE OF SERVICE

Via Email: robert.mack@cookcountyil.gov

I, Gregory Swygert, certify under penalties of perjury pursuant to 735 ILCS 5/1-109 caused to be served a copy of this PETITIONER RICO CLARK’S OPPOSITION TO THE STATE’S MOTION TO DISMISS PETITIONER'S POST-CONVICTION PETITION IN PART to above listed office via e-File and via email to robert.mack@cookcountyil.gov on May 11, 2026.

________________________________

Gregory Swygert, ARDC # 6293915

Swygert Law LLC

E. Monroe St., Ste. 3250

Chicago, IL 60603

Phone: (312) 720-5861

Greg@Swygertlaw.com

Cook County Bar No. 49157