People v. Washington

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 (725 ILCS 5/122 — 1 et seq. (West 1992)). I agree with the majority that such new evidence is sufficient to raise a constitutional question cognizable in a post-conviction petition. I also agree that the defendant in the instant cause should receive a new trial based on alleged newly discovered evidence of his actual innocence with respect to crimes for which he is presently incarcerated.

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 , 122 L. Ed. 2d 203 , 113 S. Ct. 853 (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 precedent 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 United States Supreme Court’s decision in Herrera v. Collins, 506 U.S. 390 , 122 L. Ed. 2d 203 , 113 S. Ct. 853 (1993). In Herrera, a defendant convicted of murder filed a habeas corpus petition 10 years after his conviction. In his petition, the defendant alleged that he had newly discovered evidence that would prove he was innocent of the crime. The Court noted that, generally, a claim based on newly discovered evidence of actual innocence did not present a basis for federal habeas relief in the absence of an independent constitutional violation which occurred in the state criminal proceeding. The Court justified this rule on the principle that the purpose of habeas corpus review is not to correct factual errors, but to remedy constitutional errors. With respect to the defendant’s claim that he was entitled to a new trial under the due process clause of the fourteenth amendment, the Court reviewed jurisprudence and historical practice to conclude that the refusal to consider defendant’s habeas corpus petition did not "transgress[ ] a principle of fundamental fairness 'rooted in the traditions and conscience of our people.’ [Citation.]” Herrera, 506 U.S. at 411 , 122 L. Ed. 2d at 223 , •113 S. Ct. at 866. The Court expressed the opinion that petitioner’s proper forum was a request for executive clemency. Herrera, 506 U.S. at 412-15 , 122 L. Ed. 2d at 224-26 , 113 S. a. at 866-69.

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 innocence 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 , 122 L. Ed. 2d at 227 , 113 S. Ct. at 869 .

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 , 122 L. Ed. 2d at 227-28 , 113 S. Ct. at 869-70 .

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 (Ill. Const. 1970, art. I, § 2) "stands separate and independent from the Federal guarantee of due process” (Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990)) and provides ample basis to conclude that newly discovered, compelling evidence of actual innocence warrants post-conviction relief.

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 sooner in the exercise of due diligence. 171 Ill. 2d at 487. However, the majority relies upon the dissenting views expressed in Herrera to support this conclusion. 171 Ill. 2d at 487-88. The majority’s failure to base its conclusion on Illinois case law is perplexing.

Our due process clause guarantees that no person “shall be deprived of life, liberty or property without due process of law.” Ill. Const. 1970, art. I, § 2. The term “due process of law” is an ever-maturing concept that evolves from our history and precedent and is not amenable to precise definition. Barnett v. County of Cook, 388 Ill. 251, 255 (1944). A fundamental precept of due process is the notion that governmental forces may not exercise their powers arbitrarily and capriciously (City of Decatur v. Chasteen, 19 Ill. 2d 204, 210 (I960)), nor can they “override the natural demands of justice” (Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152,159 (1955)). Yet it is truly arbitrary and capricious, and wholly contrary to the natural demands of justice, to deny a new trial to and continue the incarceration of a defendant who has compelling evidence of his actual innocence and who was, in the exercise of due diligence, unable to present such evidence sooner. The purpose of our criminal laws is to prosecute, imprison, and punish those who are guilty of having committed a criminal offense, not to senselessly forfeit the liberty of those whose innocence can be convincingly demonstrated. The policy of finality, as asserted by the State, must yield, as a matter of fundamental due process, to the manifest injustice that would result from the continued incarceration of a demonstrably innocent person.

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 innocence is not ground for post-conviction relief. Because of the importance of this issue, this court should fully address the State’s argument.

The cases upon which the State relies are inapposite to our present inquiry. For example, in People v. Gendron, 41 Ill. 2d 518 (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, 41 Ill. 2d at 519 . The 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 examination of witness’ testimony permitted use of false testimony at trial and "create[dj 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 comparison, 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 where 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 those 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 gouge a post-conviction petitioner’s claim of newly discovered evidence of actual innocence.

The State proposes that the defendant should be required to prove that, based upon the newly discovered evidence as well as the other evidence produced at trial, no rational trier of fact could find beyond a reasonable doubt that the defendant was guilty of the crime charged. See Herrera, 506 U.S. at 429 , 122 L. Ed. 2d at 235 , 113 S. Ct. at 875 (White, J., concurring). However, this standard applies to a review of the evidence where the defendant claims that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 61 L. Ed. 2d 560 , 99 S. Ct. 2781 (1979). Moreover, where a reviewing court determines that no rational trier of fact could find the defendant guilty beyond a reasonable doubt, the proper remedy is not a new trial but an acquittal on the charges for which there was insufficient evidence to convict the defendant. Jackson, 443 U.S. 307 , 61 L. Ed. 2d 560 , 99 S. Ct. 2781 .

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 shows that the defendant could not have discovered Jacqueline Martin or the substance of her testimony while he was standing trial for the Hightie murder. At the time defendant was being prosecuted, Jacqueline had fled to Mississippi and virtually no one knew of her whereabouts. Thus, in the exercise of due diligence, defendant could not have learned of Jacqueline’s testimony in sufficient time to present it in his own defense at his trial.

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 vehicle. 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 record supports the trial court’s determination that defendant is entitled to a new trial based upon newly discovered evidence showing that he is actually innocent of the crime for which he was convicted and sentenced. I note that defendant’s post-conviction petition included photographs of both the defendant and Frank Gaston, an alleged friend of Marcus, and that these photographs show a remarkable facial resemblance between defendant and Frank Gaston.

For these reasons, I concur in the majority’s conclusion that the defendant in the instant cause should receive a new trial.