Entrapment and ineffective assistance of counsel win the day — Illinois Supreme Court vacates conviction

By Larry . . . The People of the State of Illinois v. Shane Lewis (Docket No. 126705) decided June 24, 2022, deals with an egregious abuse by law enforcement and was clearly entrapment by any objective standard.

Shane Lewis was charged with involuntary sexual servitude of a minor, traveling to meet a minor, and grooming. At trial, he asserted the defense of entrapment. A Kane County jury found him guilty of the offenses, and the circuit judge sentenced him to six years’ imprisonment. On appeal, Lewis argued that his defense counsel was ineffective in presenting his entrapment defense where he failed to (1) object to the circuit court’s responses to two jury notes regarding the legal definition of “predisposed,” (2) object to the prosecutor’s closing argument mischaracterizing the entrapment defense and the parties’ relevant burdens of proof, and (3) present defendant’s lack of a criminal record to the jury. The appellate court agreed with Lewis and reversed his conviction, holding his defense counsel’s cumulative errors rendered the proceeding unreliable under Strickland v. Washington, 466 U.S. 668 (1984). As usual when an accused wins an appeal, Illinois sought review by the state’s highest court. It is clear that Illinois prosecutors did not want Lewis to have a new trial. The reason is an appellate court’s favorable decision, if allowed to stand, could open the proverbial floodgates because others have asserted an entrapment defense.

According to the opinion, the following evidence was presented to the jury. Geoffrey Howard, a special agent with the Department of Homeland Security (DHS), testified that he coordinated a sting operation with the Aurora Police Department and that the goal of the undercover operation was to arrest multiple people on the demand side of human trafficking. The operation involved posting an advertisement for an escort on Backpage.com. He described Backpage.com (Backpage) as a website that had advertisements for various goods and services and had an adult services section. The phone number in the ad did not link to an actual phone but rather went into a software system that allowed multiple officers to read and respond to text messages. The program created a record of all the messages. According to Howard, as a matter of protocol, the officers were to stop talking or texting with a suspect if the suspect wanted to have sex with an adult. Before posting the ad, agents reserved adjoining rooms at a hotel in Aurora, and in the “target room” an undercover agent posed as a mother who was offering her 14 and 15-year-old daughters for sex.

Agent Melissa Siffermann of DHS was the undercover agent waiting in the “target room” to meet Lewis. She posed as the mother of the two minor girls. She told Lewis that she likes to meet the guys first just to make sure that they’re not crazy. In addition, she told Lewis he looked like a nice guy and seemed like a good guy. Siffermann also told Lewis that, as their mother, she was ok with this, that she would tell them it’s fine. Eventually, Lewis put $200 on a nightstand. At that point, around 11:25 p.m., Siffermann proceeded to the bathroom. Seconds later Lewis was arrested.

A key issue for an entrapment defense to be successful is whether or not a person was predisposed to commit a crime. Lewis testified that he had never had any desire as an adult to have sex with a minor and that he agreed to do so only because the agents put an idea in his head that was never there before. He also explained that, whenever he expressed reluctance or doubt, the agents diverted the conversation and complimented him. Over the State’s objection, the circuit court granted Lewis’ motion to instruct the jury on the defense of entrapment. The court instructed the jury as follows with Illinois Pattern Jury Instruction. “It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant, he was incited or induced by a public officer to commit an offense. However, the defendant was not entrapped if he was predisposed to commit the offense and a public officer merely afforded to the defendant the opportunity or facility for committing an offense.”

The State argued that the appellate court erred in granting relief on Lewis’ ineffective assistance of counsel claim. Lewis argued that defense counsel’s cumulative errors support his claim of ineffective assistance of counsel. Lewis pointed out that the appellate court properly found that he was prejudiced by defense counsel’s errors in presenting his entrapment defense. Lewis requested cross-relief, arguing (1) that the State failed to prove beyond a reasonable doubt that he was not entrapped into committing the offenses, (2) that he was not guilty of involuntary sexual servitude of a minor where that statute applies to sex traffickers, not to patrons, and (3) his conviction and sentence for involuntary sexual servitude of a minor should be vacated because the statute violated the proportionate penalties clause of the Illinois Consstitution.

They Illinois Supreme Court affirmed the appellate court which had held that: “Defendant was prejudiced by defense counsel’s three errors, which constituted deficient performance. Strickland prejudice is defined as “a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different” (relying on Strickland v. Washington, 466 U.S. at 694). See Opinion at 25. The appellate court succinctly stated, “The effect of the State’s burden-shifting inducement argument and the jury’s confusion over predisposition was further compounded by defense counsel’s failure to inform the jury that defendant had no criminal history—a fact that would have bolstered the argument that defendant was not predisposed to commit the offenses before his exposure to government agents.”  Opinion at 25-26.

Based on the court’s recitation of the relevant facts, NARSOL finds this type of operation to be repugnant and a waste of resources. NARSOL is excited that the Illinois Supreme Court appears to have recognized the overreach on these sting operations. This decision may lead to the entrapment defense being raised more frequently going forward in the state of Illinois.

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7 Thoughts to “Entrapment and ineffective assistance of counsel win the day — Illinois Supreme Court vacates conviction”

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  1. TS

    Finally! Something good comes out of the Land of Lincoln for PFRs!

  2. Tim in WI

    A nation of unregulated government. And people ignorant enough to accept it. The founders knew it could happen. And it has.

  3. Robert P

    Great for Illinois defendants. Too bad it doesn’t translate to the indiscretions of those law enforcement working and taking advantage of citizens in Wisconsin and elsewhere. My brother sat in prison for 3 years on a possession of cp which I believe he never downloaded nor viewed, but still talked into taking a plea by his “lawyer”. What a waste of human excrement many in the system are creating criminals from the innocent. My eyes have been opened to the open farce of our criminal justice system. Run by those concerned only with their careers and money, not justice nor truth. Unfortunately only those who have substantial funds can fight the injustices of our system. The rest are only fodder.

    1. CJB

      Robert P

      I, too, took a plea for a nasty entrapment scheme. During my illegal prison sentence, I met many men like your brother, IT professionals (for example) not working in CP but for real companies and stuff gets zapped into your hard drives of your computer system, with never ever being culpable or of intending to doing so…it is technology….since the advent of more firewalls, these types of cases are starting to nosedive….However, they are many men in State/Federal Prisons serving 10, 20 plus years….
      ,,,yes there are some nasty people out there that do some heinous crap…but the percentage over all is very low!

      For me, this Illinois Case will be cited in my future attempts of removal from the Hit List, wherein I reside….

      But for your brother, it will be a very hard road unless he has access to monies to get the best legal eagle and many do not have the monies to fight for their justice!

      The governments know that most people do not have the monies to fight injustice and just becomes more of a House of Justice of Ill-Repute!

  4. w

    It’s not just an effort by law enforcement, they’re also using your own neighbors because of their proximity to your home (and internet). This is how they’re entrapping people using “anonymous tips”. They use the term anonymous as a cover for the real methods of entrapment which they then get to hide from defendants at trial.

    So you have to assume anything that “blips” a signal is fair game for their scheme now. Wireless equipment, routers, access points, streaming devices, adapters, smart home devices. Anything that can be picked up from the street, unfortunately that’s precisely why. This is their way of circumventing the need for a search warrant. Once they’ve done the setup they coordinate the sting.

    The key here is overreach from the inside out. Your phone, your computer, your internet, your service providers, your social media accounts. All of it is being used against you. You basically have to give them NOTHING at this point as their tunnel vision approach unfortunately means that they will continue this scheme until they get the results they desire.

    And using your neighbors helps the cops stay “clean” while they promote it as “keeping the community safe”. This is what Nextdoor is hiding from people. Their cover story of being an app for the community is concealing the fact that now there’s a way to reach and engage with police without leaving a trace so that the cops look innocent. Welcome to Kalifornia, the cops are out of control and loving it because it gets better and better for them.

    They passed the “safer communities act” along the same false pretenses. They built this whole scheme is the same manner, conceal overreach with “friendlier language”. Which means they found they’re short-term way of getting around democracy: deception. The same way they passed subverting the presumption of innocence in Kalifornia with Marsys Law, by saying “oh these are crime victims”. But by making that assertion the promoters of “Marsy’s LIE” basically just robbed defendants of due process.

    The real evil are the people that don’t care about such deception, and welcome the chance to screw their fellow Amerikans. Which is why jury trials are a failed concept. You can be innocent and absolutely be found guilty by a sham trial and a prejudiced jury. Tunnel vision.

  5. Jim

    This is what the lazy police do now is to play Slap and Tickle online, with whoever might respond online. They do this to avoid having contact with dangerous criminals in person. I wonder how many ” Detectives” actually get a buzz or high, pretending to be an underage person???