THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellant, v. KURTIS WASHINGTON, Appellee
No. 76651
Supreme Court of Illinois
April 18, 1996
June 3, 1996
171 Ill. 2d 475
McMORROW, J., specially concurring. MILLER, J., joined by BILANDIC, C.J., dissenting. BILANDIC, C.J., joined by MILLER, J., dissenting on denial of rehearing.
Joel T. Pelz, Ellen R. Kordik and Jacob I. Corre, of Jenner & Block, of Chicago, for appellee.
JUSTICE FREEMAN delivered the opinion of the court:
The question in this case is whether due process is implicated in a claim of innocence based upon new evidence so as to permit the claim to be raised in a petition under the Post-Conviction Hearing Act (
BACKGROUND
In 1982, Kurtis Washington was sentenced to 25 years in prison for murdering Tony Hightie. Hightie had been murdered outside his home in Chicago shortly after 9 p.m. on May 9, 1980. Washington was implicated in the crime by Donna McClure, Hightie‘s girlfriend, and Ronald Tapes.
McClure and Tapes witnessed the murder. At trial, they said that they had been sitting in a parked car near Hightie‘s home when they were approached by a man. The man said that he was looking for someone named Will. When McClure and Tapes proved no help, the man approached Hightie just as he left his home. Hightie had been wearing a jacket and hat that belonged to Tapes’ brother who was named William. McClure and Tapes said that after a few words with Hightie, the man shot him. The man, McClure and Tapes said, was Washington.
Washington‘s defense was that he had been at a grocery store at the time of Hightie‘s murder. The store
The appellate court affirmed the conviction and sentence on direct review (No. 1-82-1868 (unpublished order under Supreme Court Rule 23)). In 1990, Washington filed a post-conviction petition, alleging nine grounds of error, six of which asserted ineffective assistance of trial counsel. See
One of the grounds was that Washington‘s trial counsel, a private attorney who also served as Washington‘s appellate counsel, failed to investigate evidence that someone other than Washington murdered Hightie. The claim was supported with an affidavit of Jacqueline Martin dated March 3, 1990. Evidence was permitted on that as well as the other ineffective-assistance claims.
The trial judge held an in camera hearing in which he considered Martin‘s testimony. Underlying the claim at issue in this aрpeal is the substance of that testimony.
Martin told how Hightie had been shot after having been mistaken for someone else. Martin, who was 16 years old at the time, told how she had been present when Marcus Halsey, then her boyfriend, and Frank Caston had left Halsey‘s house to revenge an earlier beating of Halsey‘s brother. She, Halsey, Caston, and Caston‘s girlfriend drove in a car to an alley in a neighborhood in Chicago. She later learned that it happened to be the neighborhood where Hightie lived. Martin told how, after Halsey and Caston left the car, she had heard two gunshots, and, when the two returned, she had heard Halsey say “it was the wrong guy.” Halsey and Caston later changed clothes, discarding in another alley what they had earlier worn. Martin said that they drove to the home of one of Halsey‘s sisters, where she stayed the rest of the night.
Halsey was questioned by police the next morning.
Martin said that after the police questioning, Halsey had threatened to kill her if she told anyone what had happened. Halsey‘s threats continued, Martin said, and so she eventually stopped going to Halsey‘s house. Some months later, Halsey‘s brother confronted her as she was walking near a park and forcibly took her to Halsey. She said that she was kept against her will at Halsey‘s house for three weeks to a month. She eventually escaped with the help of an unnamed acquaintance whom she happened to see while looking out a window. Martin said that she went immediately to her mother‘s house. That same day she left for Mississippi. She stayed there for six years. Martin told how at the time of the hearing she still feared Halsey.
In view of Martin‘s in camera testimony, Washington successfully sought to amend his post-conviction petition to add a tenth claim based upon the newly discovered evidence.
The trial judge denied relief under the first nine claims Washington asserted, including the ineffectiveness claim which was supported by Martin‘s affidavit and testimony. Regarding that claim, the judge referred to testimony given by Washington‘s defense counsel that, in preparation for trial, he had tried to contact Martin. Counsel had also testified that he believed Washington had a strong alibi defense and his strategy was to focus on that rather than to try to prove that someone other than Washington murdered Hightie.
However, the trial judge granted a new trial on the ground that Martin‘s testimony was new evidence which, if believed, would have “had some significant impact” upon the jury. The State appealed. Washington
We granted the State‘s petition for leave to appeal. Meanwhile, Washington, who had been released on an appeal bond, was charged with, pleaded guilty to, and was sentenced to probation for an unrelated offense. We revoked his appeal bond. Though Washington had failed to appear after the bond revocation, his counsel again filed a cross-appeal contesting the denial of relief under the petition‘s other claims.
ANALYSIS
The claim Washington raised is a “free-standing” claim of innocence; unlike the ineffective-assistance claim supported by Martin‘s testimony, the newly discovered evidence is not being used to supplement an assertion of a constitutional violation with respect to his trial. The issue is not whether the evidence at trial was insufficient to convict Washington beyond a reasonable doubt. The appellate court rejected that challenge on direct appeal. The issue is whether Washington‘s claim of newly discovered evidence can be raised in a petition under the Post-Conviction Hearing Act to entitle Washington to a new trial. Post-conviction relief is Washington‘s remaining hope for a judicial remedy, the time limitations of other avenues offering relief for such a claim having lapsed. See
To decide the issue, we must see if either a federal or Illinois constitutional right is implicated in such a freestanding claim of innocence, since Post-Conviction Hearing Act relief is limited to constitutional claims.
Federal Due Process
The issue in Herrera was whether a freestanding claim of innocence following a Texas capital conviction could be raised in a habeas corpus petition in view of either the eighth amendment protection against cruel and unusual punishment or the fourteenth amendment due process clause. Herrera, 506 U.S. at 397-98. Ten years after his conviction, Herrera claimed that his brother, who had since died, committed the crimes. The claim was supported by two affidavits. The Court said that the claim implicated neither the eighth nor the fourteenth amendment but also offered that, even if that were not the case, the claim was unpersuasive anyway. The opinion requires close study.
Looking first to the eighth amendment, the Court
In reality, a freestanding innocence claim could present but an error of fact in the trial outcome; it could not reflect the kind of constitutional violation for which habeas relief was designed. Herrera, 506 U.S. at 400, quoting Townsend v. Sain, 372 U.S. 293, 317 (1963). The claim was not, the Court reminded, one asserting thаt the evidence at trial was not sufficient to convict beyond a reasonable doubt. Herrera, 506 U.S. at 401-02. And the Court pointed out how the claim was different from the showing of innocence needed to excuse a procedural bar under the “fundamental miscarriage of justice exception” of habeas jurisprudence. Herrera, 506 U.S. at 404 (stating that the showing of innocence was merely a “gateway” to consideration of an otherwise procedurally barred constitutional claim). A claim of innocence itself
Turning to the fourteenth amendment, the Court noted, first, that procedural, not substantive, due process governed, for substantive due process analysis would require the petitioner, in fact, to be innocent. Herrera, 506 U.S. at 407 n.6. But he was not, the Court explained. The petitioner had been convicted in an otherwise constitutionally proper trial. Therefore, the relevant question was not whether due process prohibited execution of an innocent person but whether it permitted judicial review of a freestanding claim of innocence. Herrera, 506 U.S. at 407-08.
The Court said it did not, answering the question in consideration оf the possible relief. As for commanding a new trial, the Court noted that it generally deferred to state “expertise” as to criminal process and procedure. Herrera, 506 U.S. at 407-08, 411, quoting Patterson v. New York, 432 U.S. 197, 202 (1977). The Court could not find it unfair that Texas precluded new evidence to be presented years after a conviction. Herrera, 506 U.S. at 411. As for vacation of the death sentence, the Court noted that Texas, like all capital punishment states, including Illinois, have constitutional or statutory provisions for executive clemency. Herrera, 506 U.S. at 414 n.14. Executive clemency, the Court explained, is the “fail safe” of our criminal justice system. Herrera, 506 U.S. at 415.
In the last portion of the opinion, the Court never-
In her concurrence, which Justice Kennedy joined, Justice O‘Connor pointed out that the analysis of the last portion of the opinion was “neither necessary” to the case “nor advisable.” Herrera, 506 U.S. at 421 (O‘Connor, J., concurring). She acknowledged the “sensitive” and “troubling” issue presented, remarking that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.” Herrera, 506 U.S. at 419, 421. Yet, Justice O‘Connor concluded, in a case where a jury found evidence sufficient to convict in an otherwise constitutionally fair trial, the “sole remedy was a pardon or clemency.” Herrera, 506 U.S. at 421 (O‘Connor, J., concurring).
In his concurrence, which Justice Thomas joined, Justice Scalia pointed out that the Court had already said, in Townsend v. Sain, though without elaboration, that habeas relief was not available for claims of actual innocence. Herrera, 506 U.S. at 428-29 (Scalia, J., concurring). Justice Scalia simply understood the first
In his dissent, which Justices Stevens and Souter joined, Justice Blackmun believed the first portion of the opinion to be dictum, not the second part Justice O‘Connor identified. Herrera, 506 U.S. at 430 (Blackmun, J., dissenting). Justice Blackmun noted that “[t]he majority‘s disposition *** leaves the States uncertain of their [federal] constitutional obligations.” Herrera, 506 U.S. at 439 (Blackmun, J., dissenting). He disagreed that procedural and not substantive due process govеrned the fourteenth amendment analysis, the execution of an innocent person being “‘the ultimate “arbitrary impositio[n].“‘” Herrera, 506 U.S. at 436-37 (Blackmun, J., dissenting), quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 848 (1992).
On one hand Herrera underscores the unkind reality that, though the Constitution “offers unparalleled protections against convicting the innocent” (Herrera, 506 U.S. at 420 (O‘Connor, J., concurring)), it cannot guaranty that result (see Patterson, 432 U.S. at 208). Then again, the last portion of the opinion suggests that the Constitution must somehow be made to do so, at least in a capital case. Herrera, 506 U.S. at 416-19. Justice O‘Connor echoed that notion, even agreeing that only a pardon or clemency could promise relief given a constitutionally fair
It is no criticism to read Herrera as a conflicted decision. As Justice O‘Connor said, claims of innocence—even those in noncapital cases—present troubling issues. We are, of course, bound by the Supreme Court‘s interpretation of the United States Constitution. Conflicted or not, at least for noncapital cases, Herrera clearly states, as the Court did in Townsend v. Sain, that a freestanding claim of innocence is not cognizable as a fourteenth amendment due process claim. And so Washington‘s effort to state a federal constitutional due process claim under the Post-Conviction Hearing Act must fail.
Due Process Under the Illinois Constitution
The possibility remains that Washington‘s claim may be cognizable under the Illinois Constitution‘s due process protection. That protection is stated as it is in the fourteenth amendment: no person “shall be deprived of life, liberty or property without due process of law.”
Nevertheless, in People v. McCauley, 163 Ill. 2d 414, 440 (1994), we noted that we labor under no self-imposed constraint to follow federal precedent in “lockstep” (see People v. Tisler, 103 Ill. 2d 226, 245 (1984)) in defining Illinois’ due process protection. In McCauley, we looked primarily to how the protection had been interpreted with respect to the issue there presented: police interference with a suspect‘s right to legal assistance. We found
As for Washington‘s claim here, there are decisions in which this court has perfunctorily evaluated new evidence claims in cases brought under the Post-Conviction Hearing Act. See People v. Silagy, 116 Ill. 2d 357, 367-68 (1987); People v. Witherspoon, 36 Ill. 2d 471, 477-78 (1967), rev‘d on other grounds, 391 U.S. 510 (1968). The same is true of decisions of our appellate court. See, e.g., People v. Cunningham, 267 Ill. App. 3d 1009, 1017 (1994); People v. Moleterno, 254 Ill. App. 3d 615, 624-25 (1993); People v. Lovitz, 101 Ill. App. 3d 704, 708 (1981). The practice seen in those decisions is an evaluation of the claim as if it were brought in a motion for a new trial. See, e.g., Silagy, 116 Ill. 2d at 368, citing People v. Molstad, 101 Ill. 2d 128, 134 (1984); but see People v. Albanese, 125 Ill. 2d 100, 114 (1988), relying upon People v. Cornille, 95 Ill. 2d 497 (1983).
But neither this court nor the appellate court has ever expressly identified the constitutional right implicated in a freestanding claim of innocence based upon new evidence. It is because that issue is raised here for the first time that the State sought leave to appeal under
Perhaps the closest this court has come to determining that our constitution‘s due process clause could be a means to recognize a newly discоvered evidence claim for post-conviction purposes was in People v. Cornille, 95 Ill. 2d 497 (1983). There, the court held that a post-conviction claim based upon the discovery that an expert testifying in an arson prosecution lied about his expertise was cognizable under the due process clauses of both the United States and Illinois Constitutions. Cornille, 95 Ill. 2d at 505-15. However, the decision did not turn on a differentiation of the clauses. The State‘s failure to prevent the perjury by verifying the expert‘s credentials was sufficient indicia of “State action” which, linked to the “adjudicatory process[],” made the expert‘s conduct a due process violation under both. Cornille, 95 Ill. 2d at 511. Cornille finds its place among a long line of related cases holding that the use of false testimony underlying a conviction is a due process violation. Cornille, 95 Ill. 2d at 508-09.
Those kinds of claims are fundamentally different from ones such as Washington has raised. Washington can claim no state action with regard to the evidence he now relies upon for post-conviction relief. And the “adjudicatory process” by which he was convicted did not otherwise lack due process. Essentially, then, the issue is the time relativeness of due process as a matter of this State‘s constitutional jurisprudence; that is, should additional process be afforded in Illinois when newly discovered evidence indicates that a convicted person is actually innocent?
We believe so as a matter of both procedural and substantive due process. In terms of procedural due process, we believe that to ignore such a claim would be fundamentally unfair. See McCauley, 163 Ill. 2d 441; see generally Herrera, 506 U.S. at 435 n.5, 435-37 (Blackmun, J., dissenting), citing Medina v. California, 505 U.S. 437 (1992).
Imprisonment of the innocent would also be so con-
We have no difficulty seeing why substantive due process as a matter of Illinois constitutional law offers the grounds for such a conclusion. The Supreme Court rejected substantive due process as means to recognize freestanding innocence claims because of the idea that a person convicted in a constitutionally fair trial must be viewed as guilty. That made it impossible for such a person to claim that he, an innocent person, was unfairly convicted.
We think that the Court overlooked that a “truly persuasive demonstration of innocence” would, in hindsight, undermine the legal construct precluding a substantive due process analysis. The stronger the claim—the more likely it is that a convicted person is actually innocent—the weaker is the legal construct dictating that the person be viewed as guilty. A “truly persuasive demonstration of innocence” would effectively reduce the idea to legal fiction. At the point where the construct falls apart, application of substantive due process principles, as Justice Blackmun favored, is invited. Herrera, 506 U.S. at 436 (Blackmun, J., dissenting), quoting Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at 848.
That only means, of course, that there is footing in the Illinois Constitution for asserting freestanding innocence claims based upon newly discovered evidence under the Post-Conviction Hearing Act. Procedurally, such claims should be resolved as any other brought under the Act. Substantively, relief has been held to require that the supporting evidence be new, material, noncumulative and, most importantly, “‘of such conclusive character‘” as would “‘probably change the result on retrial.‘” See Silagy, 116 Ill. 2d at 368, quoting Molstad, 101 Ill. 2d at 134.
The judgment of the appellate court is affirmed.
Affirmed.
JUSTICE McMORROW, specially concurring:
In this appeal we are asked to decide whether newly discovered evidence that a defendant is actually innocent of a crime for which he has been convicted and sentenced may be ground for a new trial under the Illinois Post-Conviction Hearing Act (
I depart from the majority with respect to its analysis of the United States Supreme Court‘s decision in Herrera v. Collins, 506 U.S. 390 (1993). Discussion of Herrera is unnecessary, inasmuch as it involves the scope of federal due process protections in the context of federal habeas corpus proceedings. In the case at bar, this court‘s proper focus should be on our State constitutional due process precedеnt with respect to proceedings under the Post-Conviction Hearing Act, a significant issue to which the majority gives inadequate attention. I also write separately because the majority opinion fails to address the arguments presented by the State in this case, and because the opinion neglects to explain why the defendant‘s evidence is sufficient to warrant a new trial. I write separately to express my views on these matters.
First, I disagree with the majority‘s analysis of the
Notwithstanding these observations, the Court proceeded to an analysis of the merits of the defendant‘s claim of newly discovered evidence of actual innocence. The Court remarked,
“We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual in-
nocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417.
The Court reviewed the defendant‘s petition and concluded that it did not raise a justiciable question of actual innocence. Herrera, 506 U.S. at 418.
The majority devotes considerable attention to the Herrera decision. 171 Ill. 2d at 480-85. The majority criticizes Herrera on the ground that it is a “conflicted decision.” 171 Ill. 2d at 485. The majority also reproves the Herrera Court because it “overlooked that a ‘truly persuasive demonstration of innocence’ would, in hindsight, undermine the legal construct precluding a substantive due process analysis.” 171 Ill. 2d at 488.
This court need not consider whether Herrera is correctly decided or analyzed, and should not speculate on what effect the Court‘s opinion may have with respect to application of federal due process in habeas corpus proceedings. The Supreme Court‘s decision in Herrera with regard to the scope of due process under the fourteenth amendment to the United States Constitution is not binding on this court‘s interpretation of the Illinois Constitution. The Illinois due process clause (
The majority acknowledges that our state‘s due process guarantee cannot condone the refusal to grant a new trial to one who presents compelling evidence of actual innocence that could not have been presented
Our due process clause guarantees that no person “shall be deprived of life, liberty or property without due process of law.”
I also write separately because I believe the majority is remiss in its failure to respond to arguments raised by the State. The State contends that there is Illinois precedent that newly discovered evidence of actual in-
The cases upon which the State relies are inapposite to our present inquiry. For example, in People v. Gendron, 41 Ill. 2d 518, 519 (1969), this court merely noted that “allegations concerning the failure of certain witnesses to appear at trial do not present questions of constitutional dimension ***.” Gendron court did not address the question of whether the testimony of the witnesses amounted to new evidence of the defendant‘s actual innocence that was discovered after the close of the defendant‘s trial.
Other precedent relied upon by the State is equally distinguishable. The rule that the defendant must prove the prosecution acted improperly or unfairly has been limited to instances where the State has knowingly used perjured testimony to obtain the defendant‘s conviction (People v. Brown, 169 Ill. 2d 94 (1995); People v. Cihlar, 111 Ill. 2d 212 (1986); People v. Colletti, 48 Ill. 2d 135 (1971); People v. Ferguson, 102 Ill. App. 3d 702 (1981)) and is inapplicable to the instant cause. Moreover, this court has not always required the State‘s knowing use of perjured testimony in order to find a due process violation. See People v. Cornille, 95 Ill. 2d 497, 513 (1983) (court found due process violation although prosecution had not knowingly used perjured testimony at defendant‘s trial, reasoning that prosecution‘s failure to engage in meaningful еxamination of witness’ testimony permitted use of false testimony at trial and “create[d] enough involvement by it in the false testimony to establish a violation of due process“).
The State‘s argument attempts to equate a defendant‘s request for a new trial based on the use of allegedly perjured testimony with a defendant‘s request for a new trial based on newly discovered evidence of actual innocence. However, there is a significant, qualitative difference between perjured testimony and evidence that the defendant is actually innocent of the crimes for which he is incarcerated. An allegation that certain of the State‘s evidence against the defendant at trial was perjured is aimed at weakening and undermining the strength of the State‘s evidence of the defendant‘s guilt. An allegation of newly discovered evidence of innocence is not intended to question the strength of the State‘s case. An allegation of newly discovered evidence of innocence seeks to establish the defendant‘s actual innocence of the crimes for which he has been tried and convicted. In cоmparison, allegations of perjured testimony do not seek to establish the defendant‘s actual innocence, but are aimed at merely questioning the sufficiency of the State‘s evidence against the defendant at trial.
Given this important distinction, the error of the State‘s position is apparent. Deprivation of the life or liberty of an individual in this state, notwithstanding persuasive evidence of the person‘s actual innocence, unquestionably violates the fundamental concept of substantive due process of law and cannot be sanctioned by this court. Where the newly discovered evidence bears directly on the innocence of the defendant and raises a compelling question of the defendant‘s guilt, and the defendant could not have discovered such evidence sooner through the exercise of due diligence, it would violate our state‘s due process guarantees to deny the defendant the opportunity to submit such evidence to a finder of fact to determine anew his guilt or innocence. This court‘s precedent has established that there is a post-conviction remedy whеre the defendant provides newly discovered evidence that he is actually innocent of the crime for which he has been tried, convicted, and sentenced. People v. Albanese, 125 Ill. 2d 100 (1988); People v. Silagy, 116 Ill. 2d 357 (1987); People v. Molstad, 101 Ill. 2d 128 (1984). These decisions are valid and sound.
Having determined that newly discovered evidence of actual innocence raises a constitutional question properly considered in a post-conviction petition, the remaining issue is whether defendant should receive post-conviction relief in the instant cause. In order to be entitled to a new trial based on newly discovered evidence of actual innocence, the defendant must demonstrate that the new evidence is “of such conclusive character that it will probably change the result on retrial,” that the evidence was “‘discovered since the trial and *** [that it is of such] character that it could not have been discovered prior to trial by the exercise of due diligence.‘” Molstad, 101 Ill. 2d at 134, quoting People v. Baker, 16 Ill. 2d 364, 374 (1959); see also Silagy, 116 Ill. 2d at 368. The majority fails to analyze the evidence in the case at bar in order to determine whether defendant should receive a new trial, perfunctorily stating that it “find[s] neither reason to disagree with the appellate court that thosе concerns were satisfied nor need to elaborate upon that conclusion.” 171 Ill. 2d at 490.
I believe that this court should address the State‘s arguments that the defendant‘s newly discovered evidence does not warrant a new trial. These issues are vitally important ones that deserve this court‘s close attention.
The State asks this court to overrule the holding in Molstad that the defendant‘s evidence must be “of such conclusive character that it will probably change the result on retrial.” Molstad, 101 Ill. 2d at 134. The State argues that this court should adopt a more stringent standard by which to gauge a post-conviction petitioner‘s claim of newly discovered evidence of actual innocence.
In light of these considerations, the more stringent standard suggested by the State is not properly applicable to a post-conviction request for a new trial based on newly discovered evidence of actual innocence. This court should expressly acknowledge, but nevertheless decline, the State‘s invitation to overrule the Molstad precedent heretofore established by this court.
Requests for a new trial based on newly discovered evidence of actual innocence are to be viewed with great caution and are not lightly granted. The trial court‘s determination is a discretionary one that will be overturned only upon a clear abuse of discretion. Baker, 16 Ill. 2d at 373-74; People v. Washington, 230 Ill. App. 3d 1002, 1007 (1992); People v. Clay, 211 Ill. App. 3d 291, 303-04 (1990). There is no basis in the present record to find an abuse of discretion in the trial court‘s granting of the defendant‘s request for post-conviction relief because of newly discovered evidence of actual innocence.
The record also demonstrates that Jacqueline‘s testimony was critical to a determination of defendant‘s guilt. Jacqueline stated that Marcus Halsey‘s brother had been beaten and that it was believed that “Kino or Tony” had been responsible for the attack. Jacqueline‘s testimony established that Marcus and Frank went to Tony Hightie‘s neighborhood on the night of the shooting, that they had a gun with them, and that they went there in order to retaliate for the beating that Marcus’ brother had sustained earlier that day. Jacqueline stated that Marcus and Frank left the car and walked to a nearby location. Jacqueline then heard two gunshots and the boys came running back to the vеhicle. Jacqueline heard Marcus tell Frank that they had shot the wrong person. Both Marcus and Frank changed their clothes and threw them away in an alley. Thereafter, Jacqueline was repeatedly threatened by Marcus not to reveal what she had witnessed on the night Tony Hightie was shot.
In light of this evidence, I find no error in the trial court‘s allowance of the defendant‘s post-conviction petition. The trial court concluded that a rational trier of fact, considering Jacqueline‘s testimony in conjunction with the other evidence presented at defendant‘s trial, would probably conclude that defendant was not guilty of the Tony Hightie shooting and that it was Marcus or Frank who had shot and killed Tony Hightie. The rec
For these reasons, I concur in the majority‘s conclusion that the defendant in the instant cause should receive a new trial.
JUSTICE MILLER, dissenting:
I do not agree with the majority‘s conclusion that a freestanding claim of newly discovered evidence of innocence constitutes a basis for relief under the Post-Conviction Hearing Act (
The defendant seeks to establish his right to a new trial under the Post-Conviction Hearing Act by alleging newly discovered evidence of his innocence of the murder for which he was convicted 14 years ago, in 1982. To be eligible for post-conviction relief, a defendant must establish a constitutional violation in the proceedings that resulted in his conviction.
The majority fails to explain, as an initial matter, why the due process clause of the Illinois Constitution should be interpreted differently from the due process clause of the United States Constitution. Invoking the flawed decision in People v. McCauley, 163 Ill. 2d 414 (1994), the majority simply declares that we are under no obligation to construe provisions of the Illinois Constitution in “lockstep” with the United States Supreme Court‘s interpretation of corresponding provisions of the United States Constitution. 171 Ill. 2d at 485. Before adopting an interpretation that varies from one given by the United States Supreme Court, however, we should seek some legitimate, objective ground for distinguishing the language of the state constitution from that of the United States Constitution. As the court explained in People v. Tisler, 103 Ill. 2d 226, 245 (1984), in deciding whether the search and seizure provisions of the Illinois Constitution should be interpreted more broadly than the fourth amendment of the United States Constitution:
“We must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal Constitution, after which they are patterned.”
Although the approach exemplified in Tisler has not bеen without exception, it represents the better analysis, in my view, and one that I would continue to adhere to. In the present case, the majority acknowledges that the language of the federal and state due process guarantees is identical and, further, that there is nothing in the debates of the 1970 state constitutional convention that suggests that the drafters intended the Illinois provision to mean something different from its
Illinois law affords convicted defendants a number of opportunities to raise allegations of newly discovered evidence of innocence; the availability of these forms of relief refutes the majority‘s conclusion that procedural due process compels a post-conviction remedy for the same claim. First, a defendant may present such evidence in a motion for a new trial, filed within 30 days of the verdict or finding of guilty.
The measures available in Illinois for raising claims
As an alternative basis for today‘s holding, the majority concludes that principles of substantive due process also compel recognition of the defendant‘s claim. This further rationale is equally unpersuasive, however. A defendant seeking to assert a claim of actual innocence in a post-conviction petition has, by definition, been convicted of the charge following a trial or a guilty plea. As the Herrera Court noted in rejecting a similar argument by a capital defendant, “The question before us *** is not whether due process prohibits the execution of an innocent person, but rather whether it entitles petitioner to judicial review of his ‘actual innocence’ claim. This issue is properly analyzed only in terms of procedural due process.” Herrera, 506 U.S. at 407 n.6, 122 L. Ed. 2d at 221 n.6, 113 S. Ct. at 864 n.6.
In opposition to Herrera‘s analysis, the majority asserts that the “legal construct” of a convicted defendant‘s guilt becomes weaker as the showing of actual innocence grows stronger. 171 Ill. 2d at 488. Although that оbservation has some theoretical appeal, it slights the role of the trial in our system of criminal justice. At the time a person files a post-conviction petition, he stands before the court, and society, as a convicted defendant, having been found guilty following a trial or guilty plea at which, presumably, all constitutional rights were honored. I do not believe that the legal sig
A defendant who cannot obtain relief in a motion for new trial or in a petition under
Finally, I would note that the out-of-state authorities cited by the majority in support of today‘s decision are fundamentally different from the case at bar. 171 Ill. 2d at 489. The present appeal arises from a petition filed under our state‘s Post-Conviction Hearing Act by a defendant who was sentenced to imprisonment for his offense. The cases cited by the majority either involve capital defendants or were maintained under statutes that do not expressly require a constitutional violation as a predicate for relief. In re Clark, 5 Cal. 4th 750, 855 P.2d 729, 21 Cal. Rptr. 2d 509 (1993), and State ex rel. Holmes v. Court of Appeals, 3rd District, 885 S.W.2d 389 (Tex. Crim. App. 1994), two of the decisions cited by the majority, were both capital cases. The distinction between capital and non-capital sentences has been considered important by some in determining whether
The state statutes in the two other cases cited by the majority did not require allegations of constitutional violations, unlike the Illinois provision at issue here. In Summerville v. Warden, State Prison, 229 Conn. 397, 641 A.2d 1356 (1994), the Connecticut habeas corpus statute directed the court to dispose of the case “‘as law and justice requires.‘” Summerville, 229 Conn. at 422, 641 A.2d at 1369, quoting
A number of questions remain in the wake of the majority‘s holding in this case. It is difficult to reconcile the result in the present appeal with our decision in People v. Brown, 169 Ill. 2d 94 (1995), which recently reaffirmed the rule that an allegation of perjury does not raise a constitutional claim in the absence of knowledge
In sum, unlike the majority, I do not believe that the Illinois Constitution provides greater due process protection in this context than does the United States Constitution, and thus I do not agree that the present defendant‘s claim represents a ground for post-conviction relief.
CHIEF JUSTICE BILANDIC joins in this dissent.
Dissenting Opinion Upon Denial of Rehearing
CHIEF JUSTICE BILANDIC, dissenting:
I do not agree with the majority‘s recognition of this newly found constitutional right for the reasons stated in Justicе Miller‘s dissent. I write separately today, however, to focus on an equally important issue that has been overlooked by my colleagues: What standard for relief should apply to a post-conviction petitioner raising a freestanding claim of actual innocence based on newly discovered evidence?
Without any analysis, the majority applies the standard applicable to a defendant‘s post-trial motion for a
This standard is not appropriate for analyzing post-conviction petitioners’ claims of actual innocence for many reasons. The standard (1) does not comport with the rationale underlying the majority‘s recognition of this due process right; (2) wrongly cloaks the already-convicted defendant with a new presumption of innocence; (3) gives no consideration to thе need for finality in criminal proceedings; and (4) inappropriately requires a new trial, which may take place decades after the crime and original trial. Also, the standard is not consistent with that applied in other jurisdictions.
The majority relies extensively on Justice Blackmun‘s dissent in Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), in recognizing this due process right, yet inexplicably fails to adopt his recommended standard for relief. The majority explains the rationale underlying its holding as follows:
“The [United States] Supreme Court rejected substantive due process as means to recognize freestanding innocence claims because of the idea that a person convicted in a constitutionally fair trial must be viewed as guilty. That made it impossible for such a person to claim that he, an innocent person, was unfairly convicted.
We think that the Court overlooked that a ‘truly persuasive demonstration of innocence’ would, in hindsight, undermine the legal construct precluding a substantive due process analysis. The stronger the claim—the more likely it is that a convicted person is actually innocent—the weaker is the legal construct dictating that the person be viеwed as guilty. A ‘truly persuasive demonstration of innocence’ would effectively reduce the idea
to legal fiction. At the point where the construct falls apart, application of substantive due process principles, as Justice Blackmun favored, is invited.” 171 Ill. 2d at 488.
Like Justice Blackmun, the majority states that a “‘truly persuasive demonstration of innocence‘” is required to overcome the strong presumption that the conviction obtained in the first trial is valid. 171 Ill. 2d at 488, quoting Herrera, 506 U.S. at 441, 122 L. Ed. 2d at 243, 113 S. Ct. at 882 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). Unlike Justice Blackmun, however, the majority applies a standard that does not require the defendant to make a truly persuasive demonstration of innocence. The majority‘s standard entitles the defendant to a new trial if the newly discovered evidence of innocence merely will “probably change the result on retrial.” 171 Ill. 2d at 489. Consequently, the majority‘s standard is wholly inconsistent with the rationale underlying its opinion.
Justice Blackmun recommended a consistent standard. He would place the burden of proof on the defendant to make a truly persuasive demonstration of his actual innocence. Herrera, 506 U.S. at 442-43, 122 L. Ed. 2d at 243-44, 113 S. Ct. at 882-83 (Blackmun, J., dissenting, joinеd by Stevens and Souter, JJ.). Justice Blackmun explicitly rejected, as too lenient, standards even more stringent than the majority‘s standard. Herrera, 506 U.S. at 442-43, 122 L. Ed. 2d at 234-44, 113 S. Ct. at 882-83 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). In doing so, he explained:
“I think the standard for relief on the merits of an actual-innocence claim must be higher ***. I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent. This standard is supported by several considerations. First, new evidence of innocence may be discovered long after the defendant‘s conviction. Given the passage of time, it may be difficult for the State to retry a defendant who obtains relief from his conviction or sentence on an actual-
innocence claim. The actual-innocence proceeding thus may constitute the final word on whether the defendant may be punished. In light of this fact, an otherwise constitutionally valid conviction or sentence should not be set aside lightly. Second, conviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant‘s guilt beyond a reasonable doubt [citations], but once the government has done so, the burden of proving innocence must shift to the convicted defendant. *** When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.” Herrera, 506 U.S. at 442-43, 122 L. Ed. 2d at 244, 113 S. Ct. at 882-83 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.).
Justice Blackmun therefore recognized that a proper standard for relief would be consistent with the rationale underlying this due process right. Unfortunately, the majority‘s standard fails this most basic test.
The second problem with the majority‘s standard is that it allows the presumption of innocence to survive a constitutionally valid conviction. This happens because the defendant is awarded a new trial in which the State will again bear the burden of proving the defendant‘s guilt beyond a reasonable doubt. This result is not acceptable. An appropriate standard would recognize that a valid conviction strips the defendant of the presumption of innocence. Herrera, 506 U.S. at 443, 122 L. Ed. 2d at 244, 113 S. Ct. at 882-83 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). Accordingly, the defendant should bear the burden of proving his actual innocence.
Third, the majority‘s standard fails to give due consideration to society‘s interests in the finality of criminal proceedings. An appropriate standard would take into account the passage of time and would recognize
Finally, the majority‘s standard incorrectly relies on a retrial to determine whether the defendant is innocent. This procedure is seriously flawed. Awarding a new trial in this context unjustly places the burden of proof on the State to show, all over again, that the defendant is guilty beyond a reasonable doubt. Couple this with the advantage a defendant will gain by being retried many years after the crime and original trial (here, 16 years) and the defendant‘s enviable position becomes apparent. Although once validly convicted, the defendant now need only raise a reasonable doubt of his guilt in order tо be released. Actually guilty defendants may succeed in gaining their freedom under the majority‘s too-lenient standard.
Justice Blackmun suggested a better procedure than retrying the defendant. He would hold an actual-innocence hearing, in which the deciding court would weigh the newly discovered evidence of actual innocence in favor of the defendant against the evidence of his guilt as presented at the original trial. Herrera, 506 U.S. at 443-44, 122 L. Ed. 2d at 244-45, 113 S. Ct. at 883 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). As compared to new trials held decades later, such a procedure would produce a highly reliable result. It would also save the judicial system the expense of a new trial.
Given the many serious problems with the majority‘s standard, it is not surprising that other jurisdictions have explicitly rejected it. See Summerville v. Warden, State Prison, 299 Conn. 397, 429, 641 A.2d 1356, 1372 (1994) (explaining in great detail why the “wholesale
JUSTICE MILLER joins in this dissent.
(No. 78422.—Reversed and remanded.)
JAMES H. DESNICK, M.D., Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Appellants.
Opinion filed April 18, 1996.—Rehearing denied June 3, 1996.