I’m not sure which offends me more — a naked falsehood that Cook County State’s Attorney Anita Alvarez propounded in a letter to the editor published in Sunday’s Chicago Tribune or the newspaper’s naked irresponsibility in letting her get away with it.
Alvarez’s letter complains about an Eric Zorn column that appeared the previous Sunday enumerating what he deemed some of her “greatest whiffs” — including the prosecution of a former street gang member named Willie Johnson for perjury based on his recantation of testimony he had given 15 years earlier that sent two young men to prison for life for a double murder they almost certainly didn’t commit.
With a rhetorical wink, Alvarez told Tribune readers that Johnson “was charged with perjury because he committed the crime of perjury” — and that he pleaded guilty “to purposefully giving false testimony at the behest of a high-ranking leader in his street gang with the goal of improperly exonerating two convicted murderers.”
Nothing could be further from the truth.
By way of background, two of Johnson’s fellow gang members were slain and he was seriously wounded in a drive-by shooting on the South Side of Chicago in 1992. As Johnson was being prepped for surgery, he gave police a general description of the shooters, one of whom, he said, was known as “Duke” and drove a white Oldsmobile.
Within hours, police stopped a white Oldsmobile driven by 17-year-old Albert (“Duke”) Kirkman in which Cedric Cal, also 17, was a passenger. Police returned to the hospital with an array of photos, from which Johnson identified Kirkman and Cal as the perpetrators of the attack. In 1994, based solely on Johnson’s identification testimony, a Cook County jury found Kirkman and Cal guilty of two counts of murder and one count of aggravated battery with a firearm. They were sentenced to natural life in prison.
In 2009, Johnson recanted his trial testimony, stating in an affidavit: “I am coming forward now because Duke and Cal don’t belong in prison for shooting me and killing my best friends. They didn’t do it. They weren’t there and [had] nothing to do with what went down that night.”
Why had Johnson falsely accused Kirkman and Cal? According to the affidavit, he did it to protect himself and his family from reprisal by one of the actual killers — a drug dealer who knew Johnson could identify him; Kirkman and Cal were simply convenient scapegoats, whom Johnson regarded as “enemies” in a rivalry over drug turf. In the 15 years since the trial, Johnson said, he had matured, no longer feared reprisal from the drug dealer, and regretted ruining two innocent youths’ lives.
Johnson’s recantation was corroborated by sworn statements from both Johnson’s sister and his girlfriend at the time of the crime, and it was consistent with the testimony of a defense witness who testified at Kirkman and Cal’s 1994 trial that about a month after the shooting Johnson told him that they weren’t involved. They also had credible alibis.
Rather than taking a serious look at the dubious convictions, Alvarez pounced on Johnson with a vengeance, charging him with perjury — based solely on the fact that his 1994 testimony and his 2009 affidavit could not both be true. Although on its face the Illinois perjury statute allows prosecutions based on nothing more than conflicting statements without regard to which might be true or false, Alvarez’s action was unprecedented and horrendous public policy — in that it would chill truthful recantations.
Shortly after Johnson was charged, 23 distinguished former judges and prosecutors wrote Alvarez a letter calling the prosecution “contrary to the interests of justice” and urging her to abandon it.
“Mr. Johnson’s conviction would chill future witness recantations, thereby depriving those who stand convicted of crimes they may not have committed of a fair opportunity to obtain post-conviction relief,” said the letter signed by retired Illinois Appellate Court Judge Warren D. Wolfson on behalf of himself and 22 others — including former U.S. Attorneys James R. Thompson and Dan K. Webb, retired U.S. Court of Appeals Judge Abner J. Mikva, former Illinois Attorney General Tyrone C. Fahner, former assistant U.S. Attorney Scott Turow, and George N. Leighton, the former judge after whom the Cook County Criminal Courts building is named.
The letter continued: “The perjury problem of course should be addressed forcefully — but public policy should encourage truthful, and discourage untruthful, recantations. Unfortunately, the prosecution of Mr. Johnson stands to discourage recantations in general — truthful as well as untruthful. A preferable policy would be to prosecute perjury only in cases in which it can be proved beyond a reasonable doubt that a recantation, as opposed to prior testimony, is false. In other words, we believe that no perjury prosecution should be based simply on the fact that a recantation materially contradicts a witness’s previous testimony.”
In response, Alvarez replied: “I agree wholeheartedly with your contention that a prosecutor should never engage in tactics or enforce policies that would chill truthful testimony of any kind, at any stage of a criminal proceeding. . . . I believe that we stand in agreement that it is appropriate to prosecute perjury only in cases in which it can be proven beyond a reasonable doubt that a recantation, as opposed to prior testimony, is false.”
Shortly thereafter, however, an Alvarez assistant proceeded to do precisely what she assured the former judges and prosecutors she would not do. In response to a motion to dismiss the case, which was pending before Circuit Court Judge Dennis J. Porter, Assistant State’s Attorney Christa Bowden took the position that, “The statute under which defendant is charged does not require proof of which of the two statements is false.”
Judge Porter, a former prosecutor, denied the motion to dismiss the case, after which Johnson — having no defense, it being obvious that he’d made conflicting statements under oath and, in view of his prior criminal record, facing up to a decade in prison and a $25,000 fine if convicted at trial — pleaded guilty in exchange for a 30-month prison sentence. In essence, what Alvarez did was subject Johnson to a modern form of torture.
While he did plead guilty, and while he testified that he had discussed his recantation by telephone with a gang leader in federal prison, Johnson most certainly did not — as Alvarez falsely asserts in her Tribune letter — plead guilty “to purposefully giving false testimony at the behest of a high-ranking leader in his street gang with the goal of improperly exonerating two convicted murderers.”
Johnson was packed off to prison, the victim of a classic Catch 22 — or perhaps living proof of the old adage that no good deed goes unpunished. To mitigate harm to Kirkman and Cal, Johnson’s lawyers made it clear that he remained adamant that they were innocent and had taken the plea deal only “when confronted with the probability that the truth of his 2011 recantation would be considered irrelevant and inadmissible” if he had faced trial.
Illinois Governor Pat Quinn grasped the injustice that Alvarez and Porter had wrought and, on his final day in office, commuted Johnson’s sentence to time served. Johnson’s release after serving only a little more than three months of his sentence left his conviction intact and did nothing to change what Johnson portrayed as a worse injustice — the wrongful convictions of two innocent teenagers who remain behind bars more than two decades later.
Kirkman and Cal currently are pursuing federal writs of habeas corpus, but even if they eventually are vindicated, the prosecution of Johnson, as his lawyers put it, “will have a palpably chilling effect on the willingness of witnesses to give truthful recantations in the future. . . . [E]very witness who gives a sworn recantation of earlier sworn testimony will have created a record upon which a perjury indictment may be obtained.”
Meanwhile, Alvarez’s letter to the Tribune amounts to audacity worthy of Donald Trump.
Although it’s obvious to, among others, Eric Zorn and 32 former judges and prosecutors that Alvarez was lying, the Tribune, as a result of its editors’ failure to fact-check her letter, inadvertently aided and abetted her campaign for the Democratic nomination in Tuesday’s primary election for a richly undeserved third term as Cook County’s top prosecutor.
Rob Warden is co-director of Injustice Watch.
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