suggesting that a postconviction petition containing a noncognizable claim under the Act should have been recharacterized as a section 2 — 1401 petition under Gandy
How later courts described this case
- suggesting that a postconviction petition containing a noncognizable claim under the Act should have been recharacterized as a section 2 — 1401 petition under Gandy
- noting that constitutional rights are not implicated without State subornation of the perjury
- a criminal defendant may obtain relief under section 2 — 1401 from a conviction obtained based on false testimony without establishing that the prosecution knew the testimony was false
- acknowledging split of authority and explaining reason for limiting relief to cases in which there is knowledge by state
Written by the judges who cited it.
The opinion
dissenting:
Patrick Brown sits in prison today based solely on evidence that may have been fabricated by the prosecution’s witnesses. Although there is substantial precedent for the majority’s holding that the use of perjured testimony does not offend the constitution unless prosecutors knew it was false when they presented it to the jury, I cannot adhere to this view. Rather, I agree with the position taken by the appellate court in People v. Shannon (1975), 28 Ill. App. 3d 873, 878 , which held that
"the use of the State’s judicial process to enforce a right of the People, the violation of which is based upon the perjured testimony of a private individual, constitutes State action whether or not the State knew that the testimony was perjured. Known to the State or not, the use of its judicial process to convict and imprison on perjured testimony is a miscarriage of justice which is abhorrent to fundamental fairness and as such is intolerable. Perjury is the mortal enemy of justice, and the battle between them must be waged at every level, including the constitutional.” (Emphasis added.)
Because Brown’s petition for post-conviction relief did raise a constitutional question, the circuit court was wrong in summarily dismissing the petition without an evidentiary hearing. At a minimum, the circuit court should have treated the petition as having been brought under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). (See People v. Gandy (1992), 227 Ill. App. 3d 112 .) Although Brown did not expressly invoke that statute in the circuit court, he was proceeding pro se and was not afforded the assistance of counsel. I realize that pro se litigants are normally held to the same standard as everyone else, but I regard this as a singularly inappropriate time to invoke principles of waiver. To hold that Brown is now barred from relief because of a technical procedural error, as my colleagues do, simply serves to compound one injustice with another.
The circuit and appellate courts should be reversed, and the cause should be remanded for a hearing on Brown’s petition. Accordingly, I dissent.
JUSTICES McMORROW and NICKELS join in this dissent.