Towers v. Lashbrook

Filing 69

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/7/22.(ca, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUCRECIOUS TOWERS,
Petitioner,
v.
CHRISTINE BRANNON, Warden,
Hill Correctional Center,1
Respondent.

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No. 17 C 7481
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Lucrecious Towers was convicted of first-degree murder by an Illinois jury in
2007 and sentenced to 100 years in prison. The jury found that Towers had shot John
Falls in the drive-through lane of a fast-food chain restaurant in Chicago on January
14, 2006. At trial, Towers had argued that he had been mistakenly identified and
that another man, Aarian Bonds, was the true shooter of Falls, but the jury disagreed.
After exhausting state court remedies, Towers brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, asserting violations of due process,
ineffective assistance of counsel, and actual innocence. The Court previously denied
Towers’s petition as to his due process and actual innocence claims, but reserved
ruling on the merits of his ineffective assistance of counsel claim until it could hold

As warden of Towers’s present correctional center, Christine Brannon is automatically
substituted as Respondent pursuant to Federal Rule of Civil Procedure 25(d) and Rule 2(a)
of the Rules Governing Section 2254 Cases. The Court will refer to Respondent as “the State.”
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an evidentiary hearing. That claim is now ripe for decision. For the reasons set forth
below, the Court grants Towers’s petition.
I.
A.

Background

State Court Proceedings
A detailed description of Towers’s state court proceedings is set forth in the

Court’s prior order. See Mem. Op. Order at 2–10, ECF No. 25; Towers v. Lawrence,
No. 17 C 7481, 2019 WL 4166869, at *1–5 (N.D. Ill. Sept. 3, 2019). A summary of the
more salient aspects follows.
1.

Conviction and Underlying Facts

A jury convicted Towers of the first-degree murder of Falls on September 19,
2007. See People v. Towers, No. 1-14-1474, 2016 WL 7434788, at *4 (Ill. App. Ct. Dec.
23, 2016). The following facts were presented at trial.2
In the early hours of January 14, 2006, Falls was driving a Jeep Trailblazer
near South Emerald Street and West 56th Street in Chicago. Id. at *1. Three others
were also in the car: Christopher Doss, James Harper, and April McFulson. Id. The
foursome was in the area because Falls was looking for his ex-girlfriend, Ebony Ester,
who was staying nearby with her new boyfriend. Id. at *2.
Falls drove north on Emerald and pulled up behind a gray Ford Focus that was
stopped in the street, blocking the northbound lane. Id. at *1. Next to the Focus was
a white Pontiac Bonneville. Id. Falls honked his horn, drove around the Focus, and

In habeas proceedings, a federal district court presumes that the state court’s factual
findings are correct, see Winfield v. Dorethy, 956 F.3d 442, 452 (7th Cir. 2020) (citing 28
U.S.C. § 2254(e)(1)), and neither party challenges that presumption here.
2

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continued north. Id. He then pulled into an alley nearby, exited his vehicle, and
confronted the driver of the Focus. A fight ensued. Id.
At this point, the driver of the Bonneville pulled up to the alley and got out of
his car, after which Doss and Harper exited the Trailblazer. Id. Doss began fighting
with the Bonneville driver, while Harper joined Falls in fighting the Focus driver. Id.
Harper hit the Focus driver with a vodka bottle, causing him to fall to the ground;
the Bonneville driver then fled on foot. Id. Harper proceeded to get into the Focus
and crashed it into a tree. Id. Harper, Doss, and Falls then rejoined McFulson in the
Trailblazer and drove away. Id.
Meanwhile, the Bonneville driver returned to his car and began to pursue the
Trailblazer, ultimately rear-ending it and causing it to collide with a parked vehicle.
Id. at *2. The Bonneville driver then sped away. Id.
Falls drove the damaged Trailblazer to 69th Street and Wentworth Avenue
and parked it in front of Harper’s house. Id. The foursome got into Harper’s truck,
drove to a police station to file a report, and then proceeded to a party, where they
stayed until 6:00 or 6:30 in the morning. Id.
After the party, McFulson and Falls went to Falls’s sister’s house, where they
slept until noon. Id. Falls then borrowed his sister’s white Volkswagen Touareg, and
he and McFulson drove to a Popeye’s Louisiana Kitchen located at 75th Street and
Lafayette Avenue. Id.
As Falls and McFulson waited in the drive-through lane, a man walked up to
the driver’s side of the Touareg and fired six or seven shots through the window. Id.

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The shooter pulled a hood over his face and disappeared around the corner. Id.
McFulson eventually ran inside and told someone to call the police. Id. Falls died
after suffering five gunshot wounds to his left side. Id. at *3.
Detectives Paul Spagnola and Rick Harrison were assigned to investigate the
shooting. Id. at *2. They interviewed witnesses, who described the shooter as a Black
male, between 26 and 27 years old, approximately 5’8” tall, weighing approximately
160 pounds, and wearing a dark leather jacket, dark clothes, and a hooded sweatshirt
with the hood down. Id. McFulson stated that she saw the man walk up to the
Touareg’s driver’s-side window before lowering her head to avoid falling glass from
the shooting. Another witness, Edwina Ross, said that she had been sitting in a car
in front of the Touareg and saw the entire scene unfold. Id.
Detectives Spagnola and Harrison also went to 5639 South Emerald Street to
look at a dark blue 1992 Chevrolet Lumina, which matched the description of the car
that witnesses had described as the getaway car. The Lumina was registered to
Marco McNeal. Id. at *2.
Two days after the shooting, Detective Spagnola composed a black-and-white
photo array to show to Doss, Harper, and McFulson. The array included photographs
of McNeal and another individual, Aarian Bonds. But the array did not include a
picture of Towers, who presumably was not a suspect at that time. Id. at *3.
After reviewing the photo array, Doss said that McNeal looked like the Focus
driver from the traffic altercation and that Aarian Bonds resembled the Bonneville
driver. Id. Harper also identified McNeal as the Focus driver. Id. McFulson was

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unable to make any identifications from the array. Id.
From this, Detective Spagnola turned his attention to McNeal and Aarian
Bonds. He was unable to locate McNeal, but managed to interview Aarian and his
brother, Carlos Bonds. Id. at *3. It was based upon these interviews that Detective
Spagnola shifted the focus of his investigation to Towers. Id.
Detective Spagnola created a second photo array with color photographs of
Towers and an individual named Terrence Cobb (but not of McNeal or Aarian Bonds),
and showed it to Doss, Harper, McFulson, and Ross. Id. This time, Doss and Harper
identified Cobb as the driver of the Focus and Towers as the driver of the Bonneville.
Id. McFulson identified Towers as the man whom she saw walk up to the Touareg
just before the shooting. Id. Ross identified Towers as the shooter as well. Id.
Based on these identifications, Towers was arrested in March 2006 and placed
in a lineup. Id. Doss, Harper, McFulson, and Ross each identified Towers from the
lineup consistent with their identifications from the second photo array. Id.
Towers’s case went to trial in 2007. At the trial, Doss, Harper, McFulson, Ross,
and Detective Spagnola each testified to the facts described above. Id. at *1–3. Doss
and Harper identified Towers as the Bonneville driver with whom they had fought,
and McFulson identified Towers as the person whom she saw walk in front of the
Touareg before the gunshots. Id. at *1–2. Ross also identified Towers as the person
who fired multiple shots at the Touareg in the drive-through lane of the Popeye’s. Id.
at *2.
After the prosecution rested, the defense called Carlos Bonds, who testified

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that, in January 2006, he had been living with his brother, Aarian Bonds, at 5638
South Emerald Street. Id. at *3. He explained that both Aarian and Towers drove
white Bonnevilles and wore their hair in braids. Id. Carlos Bonds also testified that
Aarian was dating Ebony Ester at the time of the incident. Id. When asked on crossexamination whether he had told the police on January 14, 2006, and the assistant
state’s attorney on March 14, 2006, that he had seen Towers driving a dark-colored
Lumina, Carlos stated that he had not. Id. On rebuttal, however, the assistant
state’s attorney testified to the contrary. Id. at *4.
Towers testified on his own behalf. Id. He acknowledged that, in January
2006, he drove a white Bonneville and wore his hair in braids. Id. He also stated
that he had lived at 5630 South Emerald Street for about a month, and that he was
frequently in the area. Id. But he denied any involvement in the physical altercation
or shooting of January 14, 2006. Id. He added that he knew Aarian Bonds and that
Aarian also drove a white Bonneville. Id.
During closing arguments, defense counsel argued that Aarian Bonds, not
Towers, had committed the crime. Id. He noted that Aarian Bonds lived near 56th
and Emerald Streets, drove a white Bonneville, and wore his hair in braids, just like
Towers. Id. Counsel also pointed out that Aarian Bonds was dating Falls’s exgirlfriend, whom, according to Harper, Falls had been trying to catch with Aarian
Bonds in the early morning hours of January 14, 2006. Id. Counsel also attacked the
credibility of the prosecution’s witnesses and urged that McFulson’s and Ross’s
identifications were unreliable. Id.

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The jury convicted Towers after deliberating for four hours. See State Court
Records, Ex. R, Pet’r’s Trial Tr. at V-136:5–7, V-139:21–141:24 (“Trial Tr.”), People v.
Towers, No. 06 CR 8139 (Cir. Ct. Cook Cnty.), ECF No. 17 at 382–841. On June 5,
2008, the trial court sentenced him to 100 years of imprisonment. See id., Ex. S,
Pet’r’s Posttrial Tr. at 110:11–18, Towers, No. 06 CR 8139, ECF No. 17 at 842–954.
2.

Direct Appeal

On appeal, Towers sought a new trial based on various evidentiary claims. See
State Court Records, Ex. A, Pet’r’s Opening Br. on Direct Appeal, People v. Towers,
No. 1-08-1875 (Ill. App. Ct.), ECF No. 17 at 4–45. The Illinois Appellate Court
affirmed Towers’s conviction in March 2010. See People v. Towers, 988 N.E.2d 242
(Table) (Ill. App. Ct. 2010). The Illinois Supreme Court denied Towers’s petition for
leave to appeal in May 2010. See People v. Towers, 932 N.E.2d 1036 (Table) (Ill. 2010).
The United States Supreme Court denied Towers’s petition for a writ of certiorari in
November 2010. See Towers v. Illinois, 562 U.S. 1032 (mem.) (2010).
3.

Postconviction Petition

Proceeding pro se, Towers filed a petition for postconviction relief in the Circuit
Court of Cook County in March 2011. See State Court Records, Ex. H, Pet’r’s Pro Se
Postconviction Pet., Towers, No. 06 CR 8139, ECF No. 17 at 142–172. With the
assistance of counsel, Towers filed an amended petition in September 2012, asserting,
among other claims, ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668 (1984), and its progeny, based on trial counsel’s failure to investigate
McNeal and to call McNeal, Cobb, and another man named Gregory Brooks as

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witnesses during trial. See id., Ex. I, Pet’r’s Counseled Postconviction Pet., Towers,
No. 06 CR 8139, ECF No. 17 at 173–188. In support, Towers attached affidavits by
all three individuals. See id. at 9–16. The court dismissed the petition in May 2014,
without holding an evidentiary hearing. See id., Ex. J, 5/1/14 Order Dismissing
Postconviction Pet., Towers, No. 06 CR 8139, ECF No. 17 at 189.
Towers appealed the denial of his postconviction petition. See id., Ex. L, Pet’r’s
Opening Br. Postconviction Appeal, People v. Towers, No. 1-14-1474 (Ill. App. Ct.),
ECF No. 17 at 209–68. The Illinois Appellate Court affirmed in December 2016,
reasoning that “[d]ecisions concerning which witnesses to call at trial . . . are matters
of trial strategy and are generally immune from claims of ineffective assistance,” and,
while “[t]he failure to interview witnesses” may indicate deficient performance under
the first prong of Strickland, “none of the affidavits attached to [Towers’s] amended
petition support his claim that his trial attorney failed to interview McNeal, Brooks,
and Cobb.” Towers, 2016 WL 7434788, at *9. Moreover, “regardless of whether
counsel’s performance was deficient” under the first prong of Strickland, the court
held that Towers “failed to establish a reasonable probability that he would not have
been convicted had McNeal, Brooks, and Cobb testified” and, thus, did not show
prejudice as required under the second prong of Strickland. Id. at *10.
The Illinois Supreme Court denied Towers’s petition for leave to appeal in May
2017. See People v. Towers, 84 N.E.3d 367 (Table) (Ill. 2017).
B.

Federal Habeas Proceedings

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Having exhausted his state court remedies, Towers filed pro se the instant
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in 2017, raising three
claims: (1) denial of due process, based on two evidentiary rulings from his trial; (2)
ineffective assistance of counsel, based on trial counsel’s failure to investigate McNeal
and to call McNeal, Brooks, and Cobb as witnesses, and (3) actual innocence. See Pet.
Writ Habeas Corpus, ECF No. 7; Am. Pet. Writ Habeas Corpus, ECF No. 19.
1.

Initial Decision

The Court issued its initial decision on September 3, 2019. See Towers, 2019
WL 4166869. The Court denied the petition as to Towers’s due process and actual
innocence claims. Id. at *6–7, *12. But the Court allowed Towers’s ineffective
assistance claim to proceed to an evidentiary hearing. Id. at *12.
In doing so, the Court held that the Illinois Appellate Court had applied
Strickland to the facts of his case in an objectively unreasonable manner. Id. at *9.
As to Strickland’s first prong—deficient performance—the Court found that the state
court’s conclusion that “none of the affiants swore that they were not contacted by an
attorney or investigator regarding [Towers’s] trial” was contradicted by McNeal’s
affidavit and, therefore, the conclusion was unreasonable. Id. (quoting Towers, 2016
WL 7434788, at *9). And given that “[s]trategic choices made after less than complete
investigation are reasonable [only] to the extent that reasonable professional
judgments support the limitations on investigation,” the Court found that it also was
unreasonable for the state court to presume on the limited record before it that

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Towers’s counsel’s failure to call McNeal and the others as witnesses was based on a
deliberate, strategic decision. Id. at *10 (quoting Strickland, 466 U.S. at 690–91).
As to Strickland’s second prong—prejudice—the Court found unreasonable the
state court’s assertion that McNeal, Brooks, and Cobb would not have been useful
witnesses simply because they “were not at the scene of the shooting,” even though
their statements cast significant doubt on the prosecution’s theory that Towers had
murdered Falls as payback for the altercation. Id. at *11 (quoting Towers, 2016 WL
7434788, at *9).
At the same time, the Court found that it needed to hold an evidentiary hearing
on Towers’s ineffective assistance claim before it could determine whether Towers is
entitled to habeas relief. Id. at *12. That is, while a conclusion that the “state court’s
decision denying relief was contrary to or an unreasonable application of federal law
. . . will often show that the petitioner is entitled to relief,” that was not so here
because it did not mean the affidavits supporting Towers’s postconviction petition
“are actually true or that they provide the complete picture of the facts relevant to
[his] claim of ineffective assistance of counsel.” Id. (quoting Mosley v. Atchison, 689
F.3d 838, 852 (7th Cir. 2012)). And because the state court had denied Towers an
opportunity to explore those facts, the Court could not “assess the scope of trial
counsel’s investigation and decisionmaking without a hearing.” Id.
2.

Evidentiary Hearing

After being delayed by the onset of the COVID-19 pandemic, the evidentiary
hearing on Towers’s ineffective assistance of counsel claim took place on October 2,

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2020. See generally 10/2/20 Hr’g Tr., ECF No. 61. Through the assistance of counsel
whom the Court recruited to assist with the hearing, Towers called four witnesses:
McNeal, Brooks, Cobb, and his trial counsel. Each testified as follows.
a.

McNeal

In January 2006, McNeal was living on the South Side of Chicago, where he
was paroled after having been released from prison in August 2005. Id. at 11:16–
12:19. As a parolee, McNeal was required to check in at a center every day by signing
a book, which he did without exception, and his parole officer knew his address and
cell phone number. Id. at 12:14–16, 12:20–13:23. McNeal’s friends and family also
knew where he lived, and he continued to live there until he was again incarcerated
(for an unrelated offense) from May 2007 into 2008. Id. at 13:14–20, 14:9–20.
In January 2006, McNeal owned a navy blue 1992 Chevrolet Lumina
Eurosport, with a red stripe across the sides, that was registered in his name. Id. at
8:8–9, 16:6–17:2, 43:1–12. Although McNeal rarely drove the Lumina himself at the
time, id. at 17:3–13, he often lent it to his close friend Aarian Bonds, whom he had
known for years and trusted with his car, and did so around that very month. Id. at
18:23–20:22. He lent it because he understood that Aarian’s white Pontiac Bonneville
had been “torn up” in an altercation involving Aarian’s girlfriend’s ex-boyfriend and
Aarian’s brother, Carlos Bonds, whom the ex-boyfriend had mistaken for Aarian. Id.
at 20:23–21:9, 22:2–15. When Aarian brought the Lumina back, he said that he had
“taken care of” the damage to his Bonneville by making “the guy” who caused the
damage “pay for it.” Id. at 25:18–26:8, 26:15–20.

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McNeal did not know that his Lumina had been identified as the getaway car,
or that Towers had been convicted of the murder, until years later. Id. at 6:8–15, 8:4–
6, 14:24–15:1, 50:8–25. He was never contacted by the police in connection with the
shooting. Id. at 9:5–7. Nor was he ever contacted by Towers’s trial counsel or anyone
else in connection with Towers’s trial. Id. at 4:21–23, 8:25–9:4, 15:2–13. Although
McNeal had known of Towers from living in the same area, he had never met Towers
or allowed Towers in his Lumina. Id. at 7:11–8:21, 39:24–40:3. Had McNeal been
contacted by trial counsel, he would have been able and willing to share the above
information, notwithstanding his friendship with Aarian Bonds, who passed away
sometime after Towers’s trial. Id. at 15:14–21, 23:25–28:14.
b.

Brooks

In January 2006, Brooks was living on West Garfield Boulevard (one block
north of West 56th Street) between South Emerald Street and South Halsted Street.
Id. at 58:17–25. One night that month, after dark, Brooks witnessed an altercation
in the alley outside the window of his room. Id. at 56:18–22, 63:23–64:18, 65:6–10.
The altercation involved five or six larger men, about 6’3” or taller. Id. at 64:16–
65:19. Towers, who stood 5’5” tall and whom Brooks knew from the neighborhood,
was not among them. Id. at 56:23–57:15, 58:12–13, 65:17–66:5. Brooks also knew
Aarian Bonds, because Brooks was best friends with Aarian’s brother, Carlos Bonds.
Id. at 57:16–22. Aarian stood about 6’3” tall. Id. at 58:10–11. Carlos and Towers
knew each other as well, and Brooks had observed them get into a fight of their own
a short while before the fight in the alley. Id. at 67:2–24.

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Brooks was never contacted by the police, an attorney, or an investigator in
connection with the altercation, Falls’s murder, or Towers’s trial. Id. at 55:18–56:4,
60:2–19.

However, Brooks was subpoenaed to testify at Towers’s trial and

transported to the courthouse by his then–facility of incarceration, although he was
never called and does not know which side subpoenaed him. Id. at 61:15–63:17.
c.

Cobb

One night in late December 2005 or early January 2006, Cobb was involved in
a fight on the South Side of Chicago. Id. at 88:15–23, 97:9–14, 103:9–16, 121:11–
123:1. He was walking northbound on South Emerald Street near West Garfield
Boulevard when a grey Jeep SUV pulled up from behind. Id. 88:20–23, 97:11–21.
The driver rolled down the window and asked Cobb whether he know whose house he
was walking by and whose car—a white Pontiac Bonneville—was out front. Id. at
88:23–25, 89:5–14, 98:12–15, 99:21–22. Cobb knew that the house and car belonged
to Aarian Bonds because he was friends with Aarian and had been inside of both. Id.
at 89:8–25, 91:9–21, 99:1–12.

But fearing that the driver, whom Cobb did not

recognize from the neighborhood, meant to harm Aarian, Cobb told him sarcastically
to find out for himself if he wanted to know. Id. at 89:14–19, 98:12–25.
Upset, the driver got out of the Jeep and started screaming at Cobb. Id. at
99:24–100:5. Then two or three passengers got out as well, and the group began to
beat and trample Cobb, until someone hit him in the face with a vodka bottle and
knocked him unconscious. Id. at 90:1–8, 100:5–10, 101:3–6. Towers, whom Cobb
knew from the neighborhood, was not among the occupants. Id. at 90:9–25, 100:12–

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15. By the time of Towers’s trial, Cobb had heard that Aarian Bonds was dating the
ex-girlfriend of one of the occupants at the time of the fight. Id. at 102:5–17.
Cobb spoke with homicide detectives about the altercation outside of Aarian
Bonds’s house sometime later, while being booked for an unrelated trespassing. Id.
at 93:19–94:21. The detectives asked Cobb whether Towers was involved in the
incident, to which Cobb said no. Id. at 94:16–17. Aside from that conversation, Cobb
did not speak to the police about Falls’s murder or Towers’s arrest and trial. Id. at
94:22–95:1. Similarly, Cobb was never contacted in connection with Towers’s trial
and did not receive a subpoena to testify. Id. at 88:3–5, 95:2–25.
d.

Trial Counsel

Towers’s trial counsel, then a Cook County Public Defender, was appointed to
represent Towers in March 2006, over seventeen months before trial began. Id. at
126:21–128:14, 129:20–23. In preparing for trial, trial counsel had the full resources
of the Public Defender’s Office to available to him, including a capable assistant to
help conduct investigations. Id. at 129:24–130:17, 134:20–135:2.
Among other things, trial counsel tasked his assistant with serving subpoenas
on witnesses and locating McNeal’s blue 1992 Chevrolet Lumina, which he
understood to be the getaway car. Id. at 130:18–22, 131:17–22, 134:3–18. But,
significantly, trial counsel has no memory of requesting his assistant to investigate
McNeal as a witness, of personally interviewing McNeal, or making any other efforts
to contact McNeal. Id. at 135:3–6, 135:11–136:6, 141:8–10, 170:24–171:2. Likewise,

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trial counsel has no memory of attempting to interview or otherwise investigate
Brooks or Cobb. Id. at 135:7–10, 136:8–138:12.
To be sure, trial counsel was aware of McNeal and knew that Chicago police
had located his blue Chevy Lumina at 5639 South Emerald Street in January 2006.
Id. at 141:13–143:9. From the report, trial counsel also knew that McNeal fit the
description of one of the individuals involved in the altercation preceding the murder,
and had just recently been released from the Illinois Department of Corrections. Id.
at 143:10–144:9. Trial counsel even knew that Doss and Harper had identified
McNeal as one of the individuals from the altercation after viewing a photo array,
and that Doss had described McNeal as having the physique of someone who just got
out of prison. Id. at 145:10–146:16, 146:24–147:13. And yet, despite having the
resources to track down McNeal’s probation officer and, from there, find and
interview McNeal, trial counsel does not recall having done so. Id. at 144:10–145:8,
147:25–148:11.
Although trial counsel does not recall having interviewed McNeal, trial counsel
also does not recall making a conscious decision not to interview him. Id. at 157:21–
23. At the same time, trial counsel testified that he “had [his] reasons for not wanting
to talk to” McNeal. Id. at 158:15–16; see also id. at 141:5–6. Primarily, trial counsel
“thought [McNeal] had information that could implicate [Towers] in the crime” Id.
at 161:10–11. In this respect, trial counsel distinguished between the “theory of [the]
case” that he would present at trial—that Aarian Bonds was the shooter, and McNeal
the getaway driver—versus his “idea of what actually happened”—that Towers was

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the shooter, and McNeal his getaway driver. Id. at 159:5, 180:15; see also id. at 157:6–
10, 161:24–25, 178:3–10, 190:1–4. Given that, trial counsel feared that approaching
McNeal would cause him to implicate Towers to the authorities. See id. at 157:12–
15, 158:17–20; 169:5–8, 189:7–10.
At the same time, trial counsel did not investigate his assumption that Towers
and McNeal knew each other. See id. at 159:8–10. In fact, although Towers had said
that he and McNeal did not know each other, trial counsel’s fear that McNeal would
contradict Towers’s story—along with the concern that McNeal might implicate
Towers—was another reason why trial counsel did not attempt to contact McNeal.
Id. at 188:23–189:9; see also id. at 181:20–25, 187:20–188:9. And given that the State
and City of Chicago had been reportedly unable to locate McNeal, trial counsel figured
it was “best to leave him alone” and not “stir the pot.” Id. at 188:1–4, 189:5; see also
id. at 140:24–141:2, 170:14–17, 172:19–22, 192:20–24.
In addition to McNeal, trial counsel was aware that, in a police report prepared
in early March 2006, Carlos Bonds had identified Gregory Brooks as a witness to the
roadside altercation on South Emerald Street. Id. at 150:20–152:25, 153:19–21. In
the report, Bonds also stated that Towers and Cobb had been involved in the fight.
Id. at 153:1–18. In another police report of which trial counsel was aware, Doss had
identified Cobb as both Towers’s companion in the fight and the driver of the Ford
Focus. Id. at 153:23–155:6. But trial counsel never made an attempt to contact either
Brooks or Cobb. Id. at 155:13–20; 192:13–18.
II.

Legal Standard

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254, a petitioner in custody pursuant to the judgment of a state court
must make two showings to demonstrate an entitlement to a writ of habeas corpus:
(1) “that he is in custody in violation of the Constitution or laws or treaties of the
United States,” id. § 2254(a); and (2) that the state postconviction court’s adjudication
of his claim “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or “that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”

Id. §

2254(d)(1)–(2).
If the petitioner satisfies the § 2254 prerequisites, he must then persuade the
court that “law and justice require” habeas relief. Brown v. Davenport, 142 S. Ct.
1510, 1524 (2022) (quoting 28 U.S.C. § 2243); see id. (“[A] federal court must deny
relief to a state habeas petitioner who fails to satisfy either this Court's equitable
precedents or AEDPA. But to grant relief, a court must find that the petitioner has
cleared both tests.”). And where the petitioner’s habeas claim is based on trial error,
he must prove that the error had a “substantial and injurious effect or influence” on
the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 775 (1946)); see Brown, 142 S. Ct. at 1525.
Here, the Court has already determined that the state court’s postconviction
denial of Towers’s ineffective assistance claim involved an unreasonable application
of Strickland.

See Towers, 2019 WL 4166869, at *9–11.

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determined is whether Towers “is actually . . . in custody in violation of the
Constitution . . . of the United States”—that is, whether trial counsel actually
rendered ineffective assistance by failing to investigate McNeal or to call McNeal,
Brooks, and Cobb as witnesses. Mosley, 689 F.3d at 853. Towers bears the burden of
proving these allegations by a preponderance of the evidence. Dalton v. Smith, No.
97 C 2368, 2005 WL 3455866, at *4 (N.D. Ill. Dec. 16, 2005) (St. Eve, J.) (citing Walker
v. Johnston, 312 U.S. 275, 286 (1941)).3
Under Strickland, a convicted defendant claiming ineffective assistance must
demonstrate two things: (1) “that counsel’s performance was deficient,” and (2) “that
the deficient performance prejudiced the defense.” 466 U.S. at 687. The first prong
requires a showing “that counsel’s representation fell below an objective standard of
reasonableness,” or “outside the wide range of professionally competent assistance,”
judged “under prevailing professional norms.” Id. at 688, 690. A court deciding an
ineffective assistance claim “must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Id. at 690. Additionally, to help eliminate “the distorting effects of hindsight,” the
court “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689.
Once the defendant has established that counsel’s performance was deficient,
he must then demonstrate that counsel’s deficient performance prejudiced his

Neither party contends that the clear-and-convincing evidence standard of 28 U.S.C.
§ 2254(e)(1) applies to the questions of fact at issue here, and for good reason, since the state
postconviction court did not make a determination on any of these factual issues. See 28
U.S.C. § 2254(e)(1).
3

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defense. To do so, the defendant must show “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
III.

Analysis

Towers contends that he is in custody in violation of the Sixth Amendment’s
right to the effective assistance of counsel under Strickland, because his trial counsel
had failed to investigate McNeal and to call McNeal, Brooks, and Cobb as witnesses.
The Court takes each of the Strickland prongs in turn.
A.

Deficient Performance
1.

Trial Counsel’s Failure to Investigate and Call McNeal

The first prong hinges largely on Towers’s contention that trial counsel failed
to investigate and call McNeal as a witness. As an initial matter, it is undisputed
that trial counsel did not investigate McNeal.

Consistent with his state court

affidavit, McNeal testified that he was never contacted by Towers’s defense team and
did not know that Towers was convicted of Fall’s murder until years afterward. And
trial counsel could not recall making any effort to interview or otherwise investigate
McNeal, despite knowing that McNeal was the registrant of the suspected getaway
car, that he had been identified from the traffic altercation by two of Falls’s
companions, that he had been recently released from prison, and that (in all
likelihood) he had a parole officer who would know his whereabouts. In light of this

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testimony, the Court finds by a preponderance of the evidence that trial counsel
abjectly failed to investigate McNeal.4
From here, the key question is whether trial counsel’s failure to investigate
McNeal was a based on a conscious strategic decision or the result of casual
inattention. As higher courts have “repeatedly emphasized,” Strickland draws a key
distinction “between ‘strategic choices made after thorough investigation of law and
facts relevant to plausible options,’ versus ‘strategic choices made after less than
complete investigation.’” Campbell v. Reardon, 780 F.3d 752, 763 (7th Cir. 2015)
(quoting Strickland, 466 U.S. at 690–91).

Whereas the former “‘are virtually

unchallengeable,’” the latter “‘are reasonable’ only to the extent that ‘reasonable
professional judgments support the limitations on investigation.’” Wiggins v. Smith,
539 U.S. 510, 521, 533 (2003) (quoting Strickland, 466 U.S. at 690–91). “In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at
691.

“A particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id.
Here, based on the evidentiary record, the Court finds that trial counsel’s
failure “to search for or interview McNeal” was not based on a strategic decision at

The State tacitly concedes that trial counsel made no effort to investigate McNeal.
Although its brief begins with the assertion that “counsel’s investigation was adequate,” it
proceeds to argue only that trial counsel made “a strategic decision not to search for or
interview McNeal.” Resp’ts Resp. to Pet’r’s Post–Hr’g Br. (“Resp. Br.”) at 4–5, ECF No. 63
(emphasis added).
4

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all (or, at least, not one that he could recall). Resp. Br. at 5. At the hearing, trial
counsel admitted that, just as he did not recall attempting to interview McNeal, so
too he had “no memory of choosing not to interview” McNeal. 10/2/20 Hr’g Tr. at
157:21–23 (emphasis added).

This admission, which the State fails to address,

indicates that, while trial counsel may have had reasons “for not wanting to talk to”
McNeal, id. at 158:15–16, he never weighed these reasons against the benefits of
interviewing McNeal in order to arrive at a strategic decision not to do so.5 In other
words, trial counsel never actually decided either to investigate or not to investigate
McNeal; his “omission to pursue” McNeal as a witness “occurred by default rather
than by design.” United States ex rel. Hampton v. Leibach, 347 F.3d 219, 249 (7th
Cir. 2003). As a result, the Court concludes that trial counsel’s omission was “not a
strategic decision” and, thus, his failure to pursue McNeal was not reasonable. Id.;
see also Mosley, 689 F.3d at 848 (observing that defense counsel’s failure to
investigate a witness may be a reasonable strategic judgment “only if the lawyer
actually exercised judgment”).
But, even setting this testimony aside, and accepting arguendo the State’s
position that trial counsel’s failure to interview McNeal was a matter of deliberate
trial strategy, the Court can “see no reason in the record” why any strategic decision
not to investigate McNeal “would have been reasonable under the circumstances.”

Because the State did not respond to Towers’s argument that trial counsel’s inability
to recall “even making a choice not to investigate McNeal” indicates that his omission to so
investigate “was not strategic,” see Pet’r’s Opening Br. at 18, ECF No. 62, the State has
waived any contention to the contrary. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th
Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”).
5

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Campbell, 780 F.3d at 764. In its brief, the State echoes trial counsel’s varying
rationales for not contacting McNeal, but the Court finds that none constitute
“reasonable professional judgment[s]” under the circumstances. Strickland, 466 U.S.
at 691.
First, the State contends that trial counsel did not contact McNeal because he
feared that doing so would prompt McNeal to “flip” on Towers out of fear that the
investigation was circling in on McNeal. Given McNeal’s potential criminal liability
as the alleged getaway driver, the State argues that trial counsel justifiably “was
concerned that talking to McNeal would ‘stir the pot’ and make McNeal ‘worried’ that
petitioner was implicating McNeal in the murder.” Resp. Br. at 5 (quoting 10/2/20
Hr’g Tr. at 189:5–9). This, the State asserts, might have prompted McNeal to “make
a deal with the prosecution” and testify against Towers, a risk trial counsel did not
want to take. Id.
Assuming these apprehensions did play a role in trial counsel’s decisionmaking, they were speculative and insufficient to justify not investigating McNeal.
Granted, Strickland recognizes that, when counsel has “reason to believe that
pursuing certain investigations would be fruitless or even harmful, counsel’s failure
to pursue those investigations may not later be challenged as unreasonable.”
Strickland, 466 U.S. at 691. But Towers correctly points out that trial counsel
“identified no facts that Towers told him to support [counsel’s] assumptions” that
McNeal would turn on Towers. Pet’r’s Reply Br. at 3. Trial counsel knew only a few
facts about McNeal: that he owned the 1992 Lumina that served as the getaway car,

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10/2/20 Hr’g Tr. at 141:13–143:9; that he was placed at the scene of the fight in the
early morning by multiple prosecution witnesses, see id. at 141:10–13; that he had
recently been released from prison, id. at 143:11–24; and that, according to his client,
he had no prior relationship with Towers. Id. at 188:19–189:2. These facts do not
support in any way trial counsel’s belief that McNeal would inculpate Towers.
Absent a factual justification for his theory, trial counsel apparently relied on
his “understanding” of the crime—that Towers was guilty and McNeal was his
getaway driver. But the State fails to show that trial counsel’s “understanding” that
his client was guilty was itself objectively reasonable under the circumstances.
Although the State maintains that Towers supplied trial counsel with “crucial
information” to support his hypothesis, the inquiry at the hearing into their
conversations did not disclose any such information.

Quite the contrary, trial

counsel’s hypothesis is contradicted by the only detail he identified from those
conversations: that Towers denied so much as knowing McNeal. See id. at 159:11–
19, 162:4–9, 188:23–24. And yet, to substantiate trial counsel’s disbelief of that
denial, the sole testimony that the State identifies is that Towers gave him “all this
information” about McNeal such that “a person would logically think” they knew each
other. Id. at 188:25–189:1. The content of that information remains a mystery. In
fact, while trial counsel was “sure” that he and Towers had discussed McNeal, he had
“no memory” of such a discussion. Id. at 168:3–5. In any event, that Towers may
have known about McNeal hardly indicates that he personally knew McNeal, let alone
that he conspired with McNeal to commit the murder. Thus, while the Court is

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sympathetic to the difficulty of recalling events from over a decade ago, the hypothesis
on which the State premises trial counsel’s purportedly strategic decision not to
investigate McNeal finds no basis in the record before it.6
Of course, the State also stresses that trial counsel had reason to believe that
McNeal was the getaway driver, especially given that the suspected getaway car was
registered to him.7 But trial counsel’s belief that McNeal was Towers’s getaway
driver—and thus someone who may have been able to inculpate, not exculpate, his
client—depended on his underlying assumption that Towers was guilty. Were it not
for that assumption, trial counsel would not have feared that approaching McNeal
may have caused him to ‘flip’—i.e., to “make a deal with the prosecution in exchange
for testifying against [Towers]” as the government’s “best witness.” Resp. Br. at 5–6
(citing 10/2/20 Hr’g Tr. at 187:20–25).8 Instead, trial counsel would have seen McNeal

While the State argues that trial counsel “understandably could not remember the
‘specific back-and-forth’” of his conversations with Towers, it fails to show that trial counsel’s
inability to remember such details (however understandable) may substitute for actual
evidence of the information that it asserts justified trial counsel’s omission to investigate
McNeal. Resp. Br. at 5 (quoting 10/2/20 Hr’g Tr. at 189:20–21).
6

The State’s assertion that trial counsel “learned” as much from Towers, however, is
unsupported by the record. Resp. Br. at 5 (citing 10/2/20 Hr’g Tr. at 189:13–190:4). To the
contrary, trial counsel testified that Towers did not tell him that McNeal was the driver and
that he could not “remember” what Towers did tell him about McNeal, before proceeding to
speak hypothetically in the lines cited by the State. 10/2/20 Hr’g Tr. at 189:13–190:4.
7

Even assuming that McNeal were Towers’s own getaway driver, it could hardly be
taken as given that the prosecution would have offered him a deal in exchange for testifying
against Towers or that he would have accepted any such deal, as the State suggests. As for
the State’s contention that trial counsel feared McNeal might say that he “was not the driver”
if interviewed, the State again puts words into trial counsel’s mouth. Resp. Br. at 6 (citing
10/2/20 Hr’g Tr. at 172:11–18 (emphasis added)). In the cited passages, trial counsel was
merely responding to the State’s hypothetical questions, not providing reasons why he did
not investigate McNeal. See 10/2/20 Hr’g Tr. at 172:11–18; see also id. at 190:5–14.
8

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as potentially the best witness (and at worst a neutral witness) for his defense theory
that Aarian Bonds was the shooter and someone who may well have added to, not
threatened, his “presentation of what appeared to be the best available defense
theory.” See id. at 6.
Furthermore, the State supposes that trial counsel did not pursue McNeal
because, if McNeal had informed counsel that he and Towers knew one another,
“ethical prohibitions against knowing presentation of false information” would have
prohibited counsel from arguing that they did not. Resp. Br. at 5; cf. ILL. S. CT. R.
PROF. CONDUCT 3.3(a)(3) (providing that a lawyer “shall not knowingly . . . offer
evidence that the lawyer knows to be false”). In this respect, the State points to trial
counsel’s concern that interviewing McNeal would have caused him to “lose” the
theory that Towers and McNeal did not know each other. 10/2/20 Hr’g Tr. at 188:23–
24. But even assuming McNeal would have contradicted Towers on this point, such
“conflicting evidence” would not have furnished the requisite knowledge that
Towers’s testimony was false. United States v. Marshall, 157 F.3d 477, 484 (7th Cir.
1998) (“The fact that the confession was countered by conflicting evidence does not
mean that it was ‘false.’”). And even if trial counsel reasonably believed McNeal’s
version of events, he still would have been not simply allowed, but required to offer
Towers’s version. See ILL. S. CT. R. PROF. CONDUCT 3.3(A)(3) (providing that a lawyer
may not “refuse to offer . . . the testimony of a defendant in a criminal matter[] that

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the lawyer reasonably believes is false”).9 In this way, ethical prohibitions posed no
obstacle to trial counsel’s investigation of McNeal.
At bottom, trial counsel’s justification for not investigating McNeal as a
potential witness boils down to trial counsel’s mere suspicion that Towers was guilty.
As the Seventh Circuit has recognized, however, such suspicion does not excuse the
abject failure to investigate key witnesses, especially “[i]n a first-degree murder
trial.” See Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir. 2007). In Raygoza, the
petitioner had been convicted of murder after the jury rejected his alibi defense. Id.
at 961. On the way to granting habeas relief, the court held that his defense counsel
performed deficiently by failing to investigate and call certain alibi witnesses. Id. at
964–65. Even surmising that defense counsel “had formed an opinion about [the
petitioner’s] guilt in his own mind and thought that an alibi would be futile,” the court
found it “almost impossible to see why a lawyer would not at least have investigated
the alibi witnesses more thoroughly.” Id. at 964. After all, any suspicion that his
client was guilty “would hardly distinguish [the attorney] from legions of defense
counsel who undoubtedly do the same every day, yet who conscientiously investigate
their clients’ cases before coming to a final decision about trial strategy.” Id.; see also
Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006) (holding that defense counsel

It is worth noting that trial counsel acted consistently with this understanding of Rule
3.3(a)(3) by offering evidence at trial to the effect that Towers and Aarian Bonds looked alike,
even though he conceded at the hearing that, in his own opinion, Aarian “looked nothing like”
Towers. Compare Trial Tr. at V-96:7–18, with 10/2/20 Hr’g Tr. at 175:14.
9

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performed deficiently by failing to interview “key actual or potential witnesses” in
another first-degree murder case).10
Trial counsel’s reliance on his “understanding” of Towers’s guilt also falls short
of “reasonable” representation as measured by the “prevailing professional norms.”
Strickland, 466 U.S. at 688. The American Bar Association’s guidelines for defense
counsel in effect at the time of Towers’s trial state that “counsel should conduct a
prompt investigation of the circumstances of the case and explore all avenues leading
to facts relevant to the merits of the case . . . . regardless of the accused's admissions
or statements to defense counsel of facts constituting guilt.” AM. BAR ASS’N, ABA
STANDARDS

FOR

CRIMINAL JUSTICE 4-4.1 (3d ed. 1993) (emphasis added). To the

extent that trial counsel declined to pursue potentially meritorious defenses or
investigations because he believed, or because he feared he would discover, that
Towers was guilty, he did not meet this standard.
Furthermore, even if the Court gives some weight to trial counsel’s
“understanding” that McNeal’s involvement in the case could potentially backfire, it
was still unreasonable for trial counsel to assume that the risk of McNeal ”flipping”
on Towers outweighed the potential rewards of McNeal’s testimony in Towers’s
defense, given that trial counsel did not have enough information about McNeal’s
involvement to judge how helpful his testimony would be. See Mosley, 689 F.3d at
848 (holding that defense counsel’s failure to investigate the contents of witnesses’

In this sense, the Seventh Circuit’s recognition that first-degree murder cases call for
especially diligent investigation runs counter to trial counsel’s suggestion that the murder’s
uniqueness among crimes contributed to his reasons for not wanting to talk to McNeal. See
10/2/20 Hr’g Tr. at 187:4–188:9.
10

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potential testimony meant that defense counsel “could not possibly have made a
reasonable professional judgment that their testimony would have . . . bolstered the
State's case”); Adams v. Bertrand, 453 F.3d 428, 437 (7th Cir. 2006) (defense
c]ounsel’s “commit[ment] to a predetermined strategy without a reasonable
investigation that could have produced a pivotal witness” was not reasonable trial
strategy).
Indeed, a defense attorney who refuses to investigate a potentially useful
defense witness because he is concerned that the witness may disrupt his preexisting
theory of the case does not exercise the “reasonable professional judgment[]” that is
necessary to justify an incomplete investigation. Stitts v. Wilson, 713 F.3d 887, 891
(7th Cir. 2013) (quoting Strickland, 466 U.S. at 690–91). This is especially true
where, as here, “eyewitness testimony was the linchpin” of the prosecution’s case.
Hampton, 347 F.3d at 249 (defense counsel’s failure to contact three eyewitnesses
who would have countered the prosecution’s identification testimony was an
objectively unreasonable judgment); see id. at 250–51 (collecting cases).
Citing Blackmon v. Williams, 823 F.3d 1088 (7th Cir. 2016), the State contends
that “the risk-reward calculation is much different” with respect to witnesses like
McNeal, who may have had a role in the crime, compared to those whose involvement
does not pose a risk of incriminating the client, such as alibi witnesses. Resp. Br. at
9.

But Blackmon does not suggest that the former are too risky to bother

investigating. The court simply distinguished between such witnesses on the facts of
that case. Id. at 1103–04. And the court reiterated (with regard to the alibi witnesses

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whom counsel did not investigate) that counsel cannot know a potential witness’s
vulnerabilities “without doing at least some investigation of the witnesses.” Id. at
1105. Thus, notwithstanding the different risk calculations at play, the Court sees
no basis to conclude that a defense counsel who suspects his client is guilty need only
investigate witnesses who are not linked to the crime. That would hardly comport
with the duty to “conscientiously investigate” the client’s case. Raygoza, 474 F.3d at
964.
Beyond his hypotheses that Towers was guilty and that McNeal was his
accomplice, the State contends that trial counsel reasonably chose not to investigate
McNeal because, “at the time, counsel had reason to believe that attempts to locate
McNeal would be futile.” Resp. Br. at 7. In this respect, the State underscores trial
counsel’s testimony that he “had information” to the effect that Chicago police had
been “unable to locate” McNeal based on an investigative alert issued in connection
with the shooting. 10/2/20 Hr’g Tr. at 166:22–23; see also id. at 166:24–167:13. The
State also points to trial counsel’s “belie[f]” that Towers had told him that McNeal
was “not going to be found.” Id. at 170:12–13.
This argument is unpersuasive for two reasons. For starters, trial counsel did
not suggest that he did not investigate McNeal because he could not find him. The
closest he came was to say that he “liked [his] ability to argue” that McNeal had
“mysteriously disappeared” after the murder, id. at 172:19–22, which, as discussed
above, shows only that trial counsel “commit[ed] to a defense strategy” without first
“perform[ing] a reasonable pretrial investigation.” Campbell, 780 F.3d at 763. The

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State points to no other pertinent testimony. Indeed, the notion that trial counsel did
not search for McNeal because he thought the effort would be futile cannot be squared
with his testimony that he did not “see anything [to] gain” by searching for McNeal
in the first place. 10/2/20 Hr’g Tr. at 189:3.
Even assuming that any belief McNeal would not be found contributed to trial
counsel’s omission to investigate McNeal, it does not justify that omission any more
than the hypothesis that Towers was guilty.

To begin, trial counsel could not

reasonably have relied on the police’s reported inability to locate McNeal. Cf. Stanley,
465 F.3d at 813 (holding that trial counsel performed deficiently by relying on a police
report to indicate a witness’s potential testimony, without personally talking to the
witness); see also Crisp v. Duckworth, 743 F.2d 580, 584 (7th Cir. 1984) (“We do not
agree that police statements can generally serve as an adequate substitute for a
personal interview.”). That is especially so given that the police’s efforts appear to
have been based on an investigative alert, which, as trial counsel conceded, serves as
a strictly passive notice that the police have reason to speak with someone, “in the
event” an officer runs into that person “for whatever reason.” 10/2/20 Hr’g Tr. at
147:19–23. And while the State highlights trial testimony stating that the police
made “numerous attempts to find” McNeal, the witness did not describe any active
effort to do so. See Trial Tr. at U-84:12–16.
As to trial counsel’s tentative recollection that Towers had told him that
McNeal could not be found, the Court discredits it given his earlier testimony that he
could not remember the specifics of any conversation he had with Towers about

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McNeal. See 10/2/20 Hr’g Tr. at 168:3–5. And even assuming Towers did convey as
much to trial counsel, that surely would not have excused his total resignation
towards McNeal any more than his suspicion that Towers was guilty.
In sum, the Court is compelled to conclude that trial counsel’s abject failure to
investigate McNeal fell outside the wide range of professionally competent assistance.
It follows that trial counsel’s failure to call McNeal at trial was equally unreasonable.
See Mosley, 689 F.3d at 848 (“If . . . [defense counsel] never found out what [the
witnesses’] testimony would be, he could not possibly have . . . chosen not to call
[them] as a matter of strategy.”); Hampton, 347 F.3d at 249 (“Only if it was objectively
reasonable for [defense counsel] to self-limit his investigation . . . may his ‘decision’
not to present exculpatory eyewitnesses itself be considered reasonable.”).
2.

Trial Counsel’s Failure to Call Brooks and Cobb

Although trial counsel’s failure to investigate and call McNeal as a witness is
sufficient, in and of itself, to show deficient performance, his failure to call Brooks
and Cobb as witnesses also supports such a finding. As with McNeal, the testimony
presented at the evidentiary hearing establishes by a preponderance of the evidence
that trial counsel made no effort to investigate these witnesses either. What is more,
trial counsel did not even suggest that his omission to investigate Brooks or Cobb was
the result of a strategic decision. Thus, given that trial counsel identified no reason
“to self-limit his investigation” into Brooks and Cobb, it follows once again that his

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omission to call them at trial cannot “be considered reasonable.” Hampton, 347 F.3d
at 249.11
The State does not attempt to defend trial counsel’s failure to investigate
Brooks as a reasonable strategic decision. Although the State does try to supply
reasons why trial counsel’s failure to investigate Cobb was reasonable, that effort
falls flat. Simply put, trial counsel did not identify any “downside” to interviewing
Cobb that caused him to decide against doing so. 10/2/20 Hr’g Tr. at 155:24–156:11.
Again, assuming for the sake of argument that trial counsel consciously chose
not to investigate Brooks or Cobb, the Court can see no way such a decision could be
considered “reasonable.”

Brooks and Cobb’s involvement presented no putative

“flipping” concern, because Brooks and Cobb were not suspected as potential
codefendants in the murder. Even when the State sought to have trial counsel testify
that Cobb, like McNeal, was too risky to investigate, trial counsel could not articulate
any such theory. See id. at 181:17–182:6. Trial counsel was aware that both Brooks
and Cobb were eyewitnesses to the fight in the early morning of the 14th, see 10/2/20
Hr’g Tr. at 153:14–22, and despite knowing that the prosecution’s theory of the case
involved placing Towers at the scene of that fight, see id. at 179:7–12, he failed to
present either witness to impeach the state’s witnesses, Doss and Harper, who
testified that Towers was the driver of the Bonneville. See Towers, 2019 WL 4166869,

Although the State contends that the Court may not consider trial counsel’s failure to
investigate Brooks and Cobb as witnesses, as opposed to his failure to call them as witnesses,
because Towers has not exhausted a claim at to the former, the interrelatedness of these twin
failures in this case not only allows, but requires the Court to consider trial counsel’s failure
to investigate them in assessing the reasonableness of his failure to call them.
11

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at *9.

The Seventh Circuit has noted that defense counsel’s failure to call

eyewitnesses to rebut identification testimony in these “swearing matches”
constitutes objectively unreasonable judgment. See Toliver v. Pollard, 688 F.3d 853,
862 (7th Cir. 2012) (quoting Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir.
2006) (“‘In a swearing match’ between the two sides, counsel's failure to call two
useful, corroborating witnesses . . . constitutes deficient performance.” (alteration
omitted)). Thus, trial counsel’s failure to call Brooks and Cobb also comprises
objectively unreasonable conduct and contributes to the Court’s finding of deficient
performance.
B.

Prejudice
Having established that trial counsel’s omission to investigate or call McNeal,

Brooks, and Cobb as witnesses fell below an objective standard of reasonableness,
Towers must next show that trial counsel’s omissions prejudiced his defense.12 To do
so, Towers must establish “a reasonable chance” that he would have been acquitted
had trial counsel investigated and called these witnesses. Stanley, 465 F.3d at 814
(adding that “it needn’t be a 50 percent or greater chance” and, “given that guilt must
be proven beyond a reasonable doubt, guilty people are often acquitted”).
1.

Overall Evidence of Towers’s Guilt

As a threshold matter on the second prong, the State is correct that the Court’s prior
opinion did not hold that Towers has already demonstrated prejudice, as his opening brief
contends. Indeed, given that the Court found it necessary to hold an evidentiary hearing in
order to determine whether Towers’s affidavits “are actually true or . . . provide the complete
picture of the facts relevant” to his ineffective assistance claim, the Court could not have
resolved this question before the hearing. Towers, 2019 WL 4166869, at *12 (quoting Mosley,
689 F.3d at 852).
12

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The Court begins with the State’s assertion that, regardless of what McNeal,
Brooks, and Cobb may have stated at trial, the evidence against Towers was too
overwhelming for it to have mattered. That evidence comprised Ross’s eyewitness
testimony and identification of Towers as the shooter; McFulson’s similar eyewitness
testimony and identification (plus non-identification of Aarian Bonds from the first
photo array); Doss’s and Harper’s eyewitness testimony and identifications of Towers
as the driver of the white Bonneville; Towers’s similarity to the physical descriptions
of the shooter; and the fact that Towers drove a white Bonneville.
In actuality, however, this evidence was far from overwhelming. For one thing,
the Seventh Circuit has long recognized that “shortcomings in human perception . . .
so frequently render eyewitness testimony less reliable than other types of evidence.”
Hampton, 347 F.3d at 253 (citing Wright v. Gramley, 125 F.3d 1038, 1043 n.4 (7th
Cir. 1997) (in turn, first citing United States v. Cook, 102 F.3d 249, 252 (7th Cir.
1996), and then citing United States v. Bolton, 977 F.2d 1196, 1201 (7th Cir. 1992))).
And here, the identifications made by Doss and Harper were particularly shaky given
that each had earlier identified Aarian Bonds as the Bonneville driver, and only
identified Towers once Aarian’s photo was removed. Cf. Towns v. Smith, 395 F.3d
251, 260 (6th Cir. 2005) (describing a “shaky” identification as “scant” evidence of
guilt).

Furthermore, given that Aarian drove an identical Bonneville, that vehicle

did not tip the scale between him and Towers. In addition, the differences between
their physical descriptions were relatively modest. Compare Trial Tr. at U-52:10–18,
with id. at U-58:5–7.

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As for Ross and McFulson, the State insists that their eyewitness testimony
was especially reliable. But given the inherently less reliable nature of such evidence,
the Seventh Circuit has repeatedly characterized cases hinging on a few
eyewitnesses, to the exclusion of meaningful physical evidence, as “weak.”

See

Wright, 125 F.3d at 1043; see also Campbell, 780 F.3d at 770 (finding prejudice where
the case relied on three eyewitnesses); Hampton, 347 F.3d at 256 (same); cf. Anderson
v. Johnson, 338 F.3d 382, 393–94 (5th Cir. 2003) (characterizing as “relatively weak”
a case depending on two eyewitnesses). Plus, the State ignores the fact that Ross
never viewed a photo of Aarian Bonds, while McFulson never viewed photos of Aarian
and Towers together. See Towers, 2019 WL 4166869, at *3.
The State’s cases do not suggest otherwise. In United States v. West, the issue
was whether the eyewitnesses’ identifications were independent of a tainted pretrial
identification, which is entirely distinct from whether they defeated a showing of
prejudice under Strickland. 528 F. App’x 602, 604 (7th Cir. 2013). Similarly, in
United States v. Williams, the issue was whether an identification resulted from an
impermissibly suggestive lineup. 522 F.3d 809, 810 (7th Cir. 2008). In Watson v.
Anglin, the court rejected the petitioner’s argument that he was prejudiced by a
“minor discrepancy” in a jury instruction defining murder by pointing to undisputed
evidence that he had shot three people. 560 F.3d 687, 692–93 (7th Cir. 2009). Finally,
in Allen v. Chandler, the court found reasonable the state postconviction court’s
finding that the evidence of guilt was overwhelming where the eyewitness’s account

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was partly corroborated by a surveillance video. 555 F.3d 596, 602 (7th Cir. 2009).
Thus, none of the State’s cases are helpful.
2.

McNeal’s Testimony

Turning, then, to the potential effect of McNeal’s testimony on the case, the
State first invites the Court to “disbelieve” that he would have provided the same
testimony back in 2007 as he did at the evidentiary hearing. Resp. Br. at 12; cf.
Stanley, 465 F.3d at 815 (noting that the first question that arises “[w]hen a
defendant’s lawyer failed to interview key actual or potential witnesses . . . . is
whether they would have told the lawyer the same thing before trial”). In the State’s
view, McNeal would not have willingly testified against Aarian Bonds, “his close
friend,” while Aarian was still alive in order to exonerate “a man he insists that he
did not know.” Resp. Br. at 13.
The Court disagrees and finds by a preponderance of the evidence that McNeal
would have provided the same testimony at the time of trial. McNeal explained that
he would have done so at length at the hearing, stressing his dismay that an “innocent
man is incarcerated for a crime that he didn’t commit.” 10/2/20 Hr’g Tr. at 28:21–22;
see also id. at 15:14–21, 23:25–28:14. The Court found that testimony particularly
credible. Although it is conceivable that the reality would have been different while
Aarian Bonds was alive, mere conjecture does not suffice to overcome McNeal’s
compelling testimony.

That is especially so given that Aarian seemed to have

disappeared sometime before the trial, which diminishes the possibility that McNeal
would have refused to inculpate him.

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The State next argues that the admissible portion of McNeal’s testimony
“would have done little to help the defense.” Resp. Br. at 12. In particular, the State
asserts that two pieces of McNeal’s testimony could not have been offered for the
truth of the matters asserted therein under Illinois hearsay rules: (1) that he had lent
Aarian his blue Chevrolet Lumina because Aarian said that his white Pontiac
Bonneville had been “torn up” in an altercation involving his ex-girlfriend’s boyfriend
(i.e., Falls) and his brother, Carlos Bonds, 10/2/20 Hr’g Tr. at 22:2–15; and (2) that,
upon returning the Lumina, Aarian told McNeal that he had “made the guy” who
damaged his Bonneville “pay for it.” Id. at 26:1–4.
While the State may be correct about the first statement, the Court finds that
his second statement would likely have been admissible for its truth under Chambers
v. Mississippi, 410 U.S. 284 (1973). In Chambers, the Supreme Court held that a
defendant was deprived of a fair trial when he was prevented from offering a thirdparty’s out-of-court confessions that were made “under circumstances that provided
considerable assurance of their reliability.” Id. at 300–01. In Chambers’s wake,
Illinois courts recognized an exception to the rule against hearsay where a thirdparty’s out-of-court statement is against the declarant’s penal interest and
“accompanied by sufficient indicia of reliability.” People v. Rice, 651 N.E.2d 1083,
1087 (Ill. 1995); see also People v. Bowel, 488 N.E.2d 995, 1000 (Ill. 1986). Here, both
criteria appear to have been met. First, the statement bears sufficient indicia of
reliability because it “was made spontaneously to a close acquaintance” close in time
to the murder and supported by other evidence. Chambers, 410 U.S. at 300. Second,

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the statement was against Aarian Bonds’s penal interest because, although it may
not have been a clear confession, it tended to expose him to criminal liability under
the circumstances. See People v. Tenney, 793 N.E.2d 571, 587 (Ill. 2002).13 What is
more, given the record evidence that Aarian was unavailable for trial insofar as he
could not be found,14 the statement may well have been admissible under Federal
Rule of Evidence 804(b)(3) as well. See Rice, 651 N.E.2d at 1087 (assuming without
deciding that the Illinois Appellate Court properly adopted Rule 804(b)(3) as Illinois
law after Chambers).
Had Aarian Bonds’s purported statement to McNeal that he made the man
who damaged his Bonneville “pay for it” been admitted for its truth, the Court finds
it more than reasonably probable that the result of Towers’s trial would have been
different. Compared to the modest evidence that trial counsel presented in support
of the mistaken-identity defense, the statement makes it significantly more likely
that Aarian Bonds, not Towers, was the shooter.
The State’s counterpoints are unpersuasive. While it is true that McNeal said
he was preoccupied with something when Aarian returned the Lumina, he stated

Pointing to McNeal’s testimony that he initially understood Aarian Bonds’s statement
to mean that Aarian had made the man “pay” for the damage to the Bonneville in a financial
sense, the State contends that the potentially inculpatory nature of the statement would not
have been clear. See 10/2/20 Hr’g Tr. at 30:13–15. But at the time, McNeal did not know any
of the details surrounding Fall’s murder or Towers’s case. See id. at 6:8–10 (stating that
McNeal did not become aware of the case until 2009 or 2010). If he had, McNeal would likely
have recognized that Aarian may well have been implicating himself in the murder.
13

Trial counsel’s testimony that he “th[ought] the State called [Aarian Bonds] in on an
off day” and that he “may have seen [Aarian] on the street” sometime prior to trial is too
shaky to establish otherwise. Compare 10/2/20 Hr’g Tr. at 192:4–8, with id. at 167:24–168:2.
14

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credibly that he still “heard everything” Aarian told him. 10/2/20 Hr’g Tr. at 33:7–
21. Moreover, although the jury may not have heard the other statement purporting
to show that Aarian’s white Bonneville had been torn up in an altercation involving
his ex-girlfriend’s new boyfriend, there was other evidence connecting Aarian to that
altercation, including testimony that Falls had been looking for Aarian on the night
in question, that Aarian drove a white Bonneville, and that two of Falls’s companions
initially identified Aarian as the driver of the Bonneville.
Furthermore, even if neither statement that the State identifies as hearsay
could have been admitted for its truth, the Court still finds that the potential effect
of the rest of McNeal’s testimony suffices to “undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Specifically, just two of McNeal’s assertions would have
been compelling, noncumulative evidence to support the theory that Aarian Bonds
was the shooter: (1) McNeal lent the getaway car to Aarian around the time of the
murder; and (2) McNeal did not know Towers and had never let Towers in that car.
Especially given that the identity of the getaway car was among the most solid pieces
of evidence in the case, such testimony would have lent substantial support to
Towers’s defense. And while it would have foreclosed trial counsel’s hypothesis that
McNeal was the getaway driver, it would have done so by providing stronger evidence
that Aarian was the shooter.
The State also protests that, nearly fourteen years later, McNeal was unable
“to pinpoint loaning the car . . . to the date of the murder,” as opposed to the month
of January 2006.

Resp. Br. at 17; see 10/2/20 Hr’g Tr. at 18:23–20:22. But it is

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reasonably likely that McNeal could have provided a more specific date when the
events in question were still fresh. And even if not, that McNeal lent the getaway car
to Aarian during the month of the murder—and that Towers had never been in that
car—is enough, in and of itself, to instill doubt sufficient to undermine confidence in
the jury’s verdict.
The State’s argument posits that the jury would not have believed McNeal’s
“self-serving” and “highly impeached” testimony. Resp. Br. at 13. Again, however,
the probability that the jury would have believed it remains reasonable.

As to

impeachment, the State identifies no “good reason to doubt” McNeal’s testimony that
he did not know Towers, since neither trial counsel’s unsupported hypothesis to the
contrary nor evidence that Towers and McNeal frequented the same general area
establishes otherwise. Resp. Br. at 13. Similarly, the State fails to make out a
contradiction between McNeal’s testimony, on the one hand, that he did not “often”
drive his car back in January 2006 due to psychological issues he had developed in
prison, and on the other, that he sometimes made the “quick drive” to Aarian Bonds’s
house. Compare 10/2/20 Hr’g Tr. at 17:3–13, with id. at 19:19–20:8. And McNeal’s
prior felony convictions hardly dictate that the jury would have disbelieved his story.
Finally, while is it certainly possible that the jury would have disbelieved McNeal’s
testimony anyway, it is not probable enough to preclude a showing of prejudice. After
all, the only evidence tying him to the crime was the presence of his Lumina at the
scene and two compromised eyewitness identifications from the night before.

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Accordingly, based on this record, the Court concludes that Towers has
established a reasonable probability that, but for trial counsel’s unreasonable failure
to investigate and call McNeal as a witness, the jury would have acquitted Towers of
the murder.
3.

Brooks’s and Cobb’s Testimony

Although trial counsel’s failure to investigate and call McNeal is sufficient to
justify the Court’s finding that trial counsel’s deficient performance prejudiced
Towers’s defense, the additional testimony of Brooks and Cobb contributes to that
conclusion. Cobb’s testimony would have been particularly helpful to Towers, as he
could have told the jury that he was attacked shortly before the murder by the driver
of a grey Jeep SUV matching the description of Falls’s vehicle and several passengers
(and with a vodka bottle to boot) after he refused to answer the driver’s questions
about who owned the house and vehicle that Cobb knew belonged to Aarian Bonds.
Contrary to the State’s assertion, those questions would have not been hearsay
because they did not assert the truth of any matter. See Harris v. Commonwealth,
384 S.W.3d 117, 126–27 (Ky. 2012), as modified on denial of reh’g (Dec. 20, 2012)
(reviewing when courts have found questions to be hearsay and agreeing with the
majority rule that non-assertive questions, such as “What are the store’s hours of
operations?” are not hearsay); People v. Cook, 99 N.E.3d 73, 86 (Ill. App. Ct. 2018)
(suggesting that Illinois follows the majority rule (citing MICHAEL H. GRAHAM,
CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE § 801.1, at 635–36 (6th ed.
1994))). And Cobb’s admissible testimony about the questions he was asked and the

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fight to which they led would have tended to corroborate the theory that Falls had
been seeking to harm Aarian, which would have supported trial counsel’s theory that
Aarian, not Towers, had the motive to kill Falls. Furthermore, Cobb knew both men
and could have underscored their physical similarities. See 10/2/20 Hr’g Tr. at 91:25–
92:5.
It is certainly possible that the jury would have disbelieved Cobb’s testimony,
for a number of reasons. But as with McNeal, the Court views that possibility to be
relatively low. Although Cobb was admittedly intoxicated during the altercation and
wound up with a head injury, the Court found his recollection of the key facts to be
credible. See 10/2/20 Hr’g Tr. at 102:20–25, 109:13–112:2. And while the State notes
that Cobb was friends with Towers, it ignores that he was closer friends with Aarian,
making him an unbiased witness between the two. See id. at 91:22–92:21. As for
Cobb’s (and Brooks’s) prior felony convictions, the Court again finds it improbable
that the jury would have placed much weight in them when deciding whether to
believe the witnesses’ testimony.
Brooks’s testimony would have aided Towers’s mistaken-identity defense as
well. His account of an alleyway fight would have tended to cast additional doubt on
the State’s theory that Towers was involved in the traffic altercation that provided
the impetus for the murder. Although the State stresses that Brooks could not recall
the date of the fight, police records indicating that he had witnessed the traffic
altercation involving Falls, the white Bonneville, and the grey Focus strongly suggest
that he was describing that very altercation.

42

See Pet’r’s Ex. 4, Chicago Police

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Department Case Supplementary Report ID 4740141 at 4, ECF No. 62-3. And while
Brooks did not observe the whole incident, and his account did not fully align with
others presented at trial, there is still a reasonable chance that the jury would have
found his perspective compelling. Lastly, like Cobb, Brooks would have been a
relatively neutral witness insofar as he knew both Towers and Aarian and was best
friends with Carlos Bonds. See 10/2/20 Hr’g Tr. at 57:9–58:9.
In sum, after considering the record, the Court finds it reasonably probable
that, but for trial counsel’s unprofessional failure to investigate and call McNeal—
not to mention Brooks and Cobb—as a witness, the jury would have reasonably
doubted that Towers killed John Falls.

Accordingly, the Court concludes that

Towers’s custody violates the Sixth Amendment under Strickland and its progeny,
and that Towers is entitled to a writ of habeas corpus pursuant to AEDPA.
C.

Brecht Analysis
One additional point needs mentioning. In order for the writ to issue, trial

counsel’s unconstitutionally deficient performance must have had a “substantial and
injurious effect or influence” on the jury’s decision to convict. Brecht, 507 U.S. at 637;
see Brown, 142 S. Ct. at 1524. This form of harmless error review focuses on “whether
a federal habeas court itself harbors grave doubt about the petitioner’s verdict.”
Brown, 142 S. Ct. at 1525 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). And
importantly, where the evidence is “evenly balanced” as to harmlessness, “the
petitioner must win.” O’Neal, 513 U.S. at 437.

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As a threshold matter, it is not entirely clear that a separate Brecht analysis
is necessary in light of the foregoing Strickland analysis. The Supreme Court has
suggested that, when a habeas petitioner has shown prejudice under Strickland or
another constitutional claim that includes a prejudice element, it is unnecessary to
run through the prejudice inquiry again under Brecht. See Kyles v. Whitley, 514 U.S.
419, 435–36 (1995). In Kyles, the Supreme Court held that a showing of prejudice
under United States v. Bagley, 473 U.S. 667 (1985), which had adopted the Strickland
“reasonable probability” standard for showing prejudice in cases of Brady violations,
see id. at 682, “necessarily entails the conclusion that the suppression must have had
‘substantial and injurious effect or influence in determining the jury's verdict.’” Kyles,
514 U.S. at 435 (quoting Brecht, 507 U.S. at 623)). Accordingly, the Kyles court
explained that once a court has found that a constitutional error is prejudicial under
Bagley, “there is no need for further harmless-error review.” Id. In a footnote, the
Court recognized the logical implication of its holding—the principle that harmless
error review is superfluous in cases where the petitioner has shown prejudice under
the standard Bagley had borrowed from Strickland also makes it unnecessary in
cases involving claims under Strickland itself.

Id. at 436 n.9 (quoting Hill v.

Lockhart, 28 F.3d 832, 839 (8th Cir. 1994) (“It is unnecessary to add a separate layer
of harmless-error analysis to an evaluation of whether a petitioner in a habeas case
has presented a constitutionally significant claim for ineffective assistance of
counsel.”)).

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The Seventh Circuit has not yet stated whether a showing of Strickland
prejudice necessarily entails a finding of prejudice under Brecht. But other circuits
have. See, e.g., Haskell v. Superintendent Greene SCI, 866 F.3d 139, 150 (3d Cir.
2017); Byrd v. Workman, 645 F.3d 1159, 1167 n.9 (10th Cir. 2011); Hayes v. Brown,
399 F.3d 972, 985 (9th Cir. 2005); Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir.
2000); Combs v. Coyle, 205 F.3d 269, 291 n.18 (6th Cir. 2000); see also Dey v. Scully,
952 F. Supp. 957, 974–76 (E.D.N.Y. 1997) (discussing at length why Brecht analysis
is unneeded in cases where “such analysis inheres in the initial finding that the error
was constitutionally significant.” Id. at 974).
Nevertheless, out of an abundance of caution,15 the Court also will consider
Towers’s claims under Brecht.

And, in doing so, the Court has little trouble

concluding that trial counsel’s failure to call McNeal had a substantial and injurious
effect on the outcome of Towers’s trial. Recall McNeal’s testimony at the hearing that
he lent Aarian Bonds his Lumina around the date of the shooting, and that upon

It is unclear whether the Supreme Court’s recent decision in Brown v. Davenport, 142
S. Ct. 1510, which held that “a federal court cannot grant relief without first applying both
the test this Court outlined in Brecht and the one Congress prescribed in AEDPA,” id. at
1517, abrogates Kyles and the above-referenced cases to the extent that they hold that a
separate Brecht analysis is unnecessary when prejudice is an element of the underlying claim
of constitutional error. To be sure, “the Supreme Court shies from overturning its precedents
sub silentio.” Tully v. Okeson, 977 F.3d 608, 615 (7th Cir. 2020) (citing Shalala v. Ill. Council
on Long Term Care, Inc., 529 U.S. 1, 18 (2000)), cert. denied, 141 S. Ct. 2798 (2021); see
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484–85 (1989) (instructing
that when “a precedent of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions,” a lower court should “follow the case which
directly controls, leaving to this Court the prerogative of overruling its own decisions”); cf.
Brown, 142 S. Ct. at 1528 (“We neither expect nor hope that our successors will comb these
pages for stray comments and stretch them beyond their context—all to justify an outcome
inconsistent with this Court's reasoning and judgments . . . .”). But Towers’s evidence of
prejudice satisfies Brecht in any event, and so the Court need not probe the issue any further.
15

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returning the car, Aarian Bonds said to McNeal that he had made the person who
damaged his Bonneville “pay for it.” McNeal also said he had never met Towers and
certainly had never lent him his car. As detailed above, based on McNeal’s in-court
testimony, the Court finds it very probable that McNeal would have provided, and
the trial court would have admitted, the same exculpatory testimony at Towers’s
trial.
That testimony would have been particularly impactful in light of the
weaknesses in the State’s case. As described above, the State’s evidence consisted of
relatively shaky identification testimony and circumstantial evidence that
harmonizes equally well with the defense’s theory that Aarian Bonds was the shooter
as it does with Towers’s guilt (e.g., both Towers and Aarian Bonds drove a Bonneville).
This evidence was not “so overwhelming that [the Court] can discount the possibility”
that trial counsel’s errors “had a substantial adverse effect on the verdict.” Wilber v.
Hepp, 16 F.4th 1232, 1260 (7th Cir. 2021).
To the contrary, McNeal’s testimony would likely have caused the jury to
reasonably doubt whether Towers was the shooter. For reasons explained above,
McNeal’s account would have substantially strengthened the defense’s theory that
Aarian Bonds had killed Falls as revenge for the fight that damaged his car.

The

Court concludes that McNeal’s testimony would have nudged that theory over the
line of plausibility, such that the jury would not have found Towers guilty beyond a
reasonable doubt.

Add on Brooks’s and Cobb’s testimony, which would have

materially undermined the State’s theory that Towers was the Bonneville driver who

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had fought with Falls, Doss, and Harper the night before the murder, and it becomes
clear that trial counsel’s errors were anything but harmless.
Consequently, the Court has “grave doubt” that Towers received a fair trial in
light of the ineffective assistance of counsel he received due to trial counsel’s failure
to call McNeal, Brooks, or Cobb. Accordingly, the Court finds that Towers is entitled
to habeas relief under the Brecht standard as well.
IV.

Conclusion

For the reasons set forth above, the Court grants Towers’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis of his claim of ineffective
assistance of counsel. The State has 120 days, or until January 5, 2023, in which to
decide whether to retry Towers; if the State decides not to retry Towers or makes no
decision within that period, it must release Towers from prison. Owens v. Duncan,
781 F.3d 360, 366 (7th Cir. 2015).

IT IS SO ORDERED.

ENTERED: 9/7/22
__________________________________
John Z. Lee
United States District Judge

47