It’s time for an enlightened approach to perjury and recantations

Eighty-five years ago last week, the Illinois Supreme Court branded witness recantations categorically unreliable — a generalization that, albeit untrue, haunts the Illinois criminal justice system to this day, denying or delaying exonerations of innocent prisoners whose convictions rest on perjured testimony.

The court’s unfounded assertion appeared in an opinion affirming the conviction of Simon Marquis, a downstate man whom a jury had found guilty of murdering his 20-year-old son. The two had been alone in the dining room of the family home on June 1, 1930, when, according to the elder Marquis, his revolver accidentally discharged, killing his son. After the 15-year-old sister of the deceased testified that her father emerged from the dining room and proclaimed, “I told you I would do that someday,” the jury found her father guilty of murder.

Within days, the young woman recanted, whereupon Marquis filed a motion for a new trial, which the trial judge denied. Marquis appealed to the Illinois Supreme Court, which found the recantation unreliable. Rather than sticking to the facts of the case, however, the court pronounced recantations categorically “very unreliable” — a throw-away characterization, known in legal parlance as dictum, which has no precedential value. Nevertheless, Illinois courts have cited the Marquis dictum repeatedly in ensuing years in denying relief to convicted defendants whose accusers recanted.

The most celebrated example is the case of Gary Dotson, who was convicted of a 1979 rape based on the testimony of 16-year-old Cathleen Crowell. She recanted six years later, saying that she had fabricated the rape out of fear that she might be pregnant as a result of consensual sex with her boyfriend; she merely wanted a cover story in case her fear came to fruition, which it did not. When Dotson sought a new trial based on the recantation, the trial judge and the Illinois Appellate Court rebuffed him, the latter citing the Marquis dictum. In 1989, much to the chagrin of officialdom, DNA testing exonerated Dotson, proving the recantation true.

Since then, recantations have proven true in scores of other Illinois cases, sometimes more belatedly than in Dotson’s; one of the longest delays occurred in the so-called Ford Heights Four case, in which a key witness’s 1978 recantation was validated 18 years later, in 1996, by DNA.

In light of the experience, which leaves no doubt that recantations are not inherently unreliable, it is hard to imagine a public policy more wrongheaded than one that discourages  recantations by allowing prosecutors to charge recanting witnesses of perjury. Yet Illinois has such a policy — thanks to the state’s perjury statute, which when read literally, as it recently has been, allows perjury convictions to rest solely on materially conflicting sworn statements, regardless of which may be true or false and regardless of how long ago or under what circumstances the statements were made.

Surely the Illinois General Assembly never intended the statute to be applied in such a manner, and no prosecutor had done so until 2011, when Cook County State’s Attorney Anita Alvarez launched a perjury case against a recanting witness — Willie Johnson, a former street gang member whose testimony had sent two juveniles to prison for life for a drug-related double murder that occurred on April 21, 1992, on the West Side of Chicago.

Johnson was both a witness to the crime and a victim — shot nine times and critically wounded. His sister and girlfriend told police that the shooters might have been Cedric Cal and Albert Kirkman, from whom Johnson had stolen money and drugs earlier in the day. Shortly thereafter, while awaiting surgery, Johnson named Cal and Kirkman as the assailants and, two years later, at their trial, identified them in court.

In an affidavit recanting his testimony 17 years later, in 2011, Johnson proclaimed Cal and Kirkman innocent, attributing the crime to two other men — one of whom he identified as Keith Ford, a drug dealer. Fearing that his sister and mother would be in mortal danger if he identified Ford, Johnson says in the affidavit that he falsely implicated Cal and Kirkman: “When my sister and [girlfriend] pointed those guys out it was just convenient. I felt like it would work for everybody, you know. My mama wouldn’t get killed, my sister wouldn’t get killed or anything like that and, you know, that’s just where I was with that mentally.”

Although Johnson’s recantation seemed as plausible as others that have proved true, such as that in the Dotson case, Alvarez obtained an indictment charging Johnson with perjury. It is proper of course to prosecute false recantations, like any other false testimony, but Johnson’s indictment did not allege that his recantation was false. Rather it alleged only that both his 1994 trial testimony and 2011 recantation could not be true.

Twenty-three former judges and prosecutors wrote Alvarez expressing concern that prosecuting a recanting witness for perjury without proving the recantation itself false would chill truthful, as well as untruthful, recantations, in contravention of the public interest. Alvarez responded with a seemingly conciliatory letter expressing “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 a prior statement, is false.”

Five weeks later, however, in response to a motion to dismiss the Johnson indictment, Alvarez filed an answer taking the opposite position — arguing that the prosecution needed to prove only that one or the other of the statements was false. The ex-judges and prosecutors who had written Alvarez filed a friend-of-the-court brief warning of untoward consequences if the prosecution proceeded and arguing that Alvarez had “a disabling conflict of interest and clear bias in the application of the perjury law” — that she was using it to punish Johnson for a recantation unfavorable to the prosecution while ignoring perjury by police officers whose lies under oath had been documented on video tape.

Cook County Circuit Court Judge Dennis J. Porter, a former prosecutor before whom the Johnson case was pending, agreed with Alvarez — leaving Johnson with no defense, there being no question that both his trial testimony and recantation could not be true. In view of his felony record, Johnson faced up to a decade in prison and a $25,000 fine if convicted at trial where his only hope of prevailing would be jury nullification — that is that the jury would acquit him out of revulsion to the unjust law. Seeing little chance of that, he pleaded guilty in exchange for a 30-month prison sentence.

Johnson’s lawyers filed a petition for executive clemency, from which Illinois Governor Pat Quinn grasped the injustice that Alvarez and Porter had wrought. On his final day in office — January 12, 2015 — Quinn commuted Johnson’s sentence to three months he had served, but, unfortunately, left his conviction intact and did nothing to correct what Johnson had unwaveringly portrayed since 2011 as a gross injustice — the wrongful convictions of Cal and Kirkman.

Although Alvarez was ousted from office in the March 2016 Democratic primary election, the specter of future abuse of the perjury statute by a successor or by prosecutors elsewhere bent on discouraging witness recantations thus remains.

A bill that would rein in perjury prosecutions of recanting witnesses was introduced in the Illinois General Assembly in January by Representative Scott R. Drury, but the spring legislative session ended last week without a committee hearing on the measure. Drury’s bill would have brought the Illinois perjury law into conformity with the federal law and those of 21 states, which allow conflicting-statement prosecutions only if the statements in question were made within limitation periods ranging from two to five years.

Barring perjury prosecutions for recantations that occur after inordinately long periods — such as the 17-year time lapse in Willie Johnson’s case — would be a positive, although imperfect, reform. Prosecutors would remain free to use the law to deter recantations within the limitation period. Ideally, lawmakers not only in Illinois but everywhere should bar perjury prosecutions for recantations without proof that the recantations, as opposed to statements being recanted, are false.

Rob Warden is co-director of Injustice Watch. If you enjoyed this commentary, please subscribe to our newsletter.