People v. Washington

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 (725 ILCS 5/122 — 1 through 122 — 8 (West 1992)) in a noncapital case. Accordingly, I dissent.

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. 725 ILCS 5/122 — 1 (West 1992); People v. Brown, 169 Ill. 2d 94, 101-03 (1995); People v. Guest, 166 Ill. 2d 381, 389 (1995). The majority correctly concludes that the defendant’s claim of actual innocence does not implicate any federal constitutional rights. See Herrera v. Collins, 506 U.S. 390 , 122 L. Ed. 2d 203 , 113 S. Ct. 853 (1993); Townsend v. Sain, 372 U.S. 293 , 9 L. Ed. 2d 770 , 83 S. a. 745 (1963). The majority finds, however, that the same claim implicates the due process guarantee of the Illinois Constitution (111. Const. 1970, art. I, § 2) and thus may be pursued under our state’s Post-Conviction Hearing Act.

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 been 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 federal counterpart. 171 Ill. 2d at 485. The majority nonetheless concludes that the due process clause of the Illinois Constitution requires a different and more expansive meaning than the same language commands under the federal constitution, and that notions of procedural and substantive due process separately sustain the defendant’s action here. Neither ground is persuasive.

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. 725 ILCS 5/116 — 1 (West 1994). If the defendant discovers the evidence too late to satisfy the preceding time limit, relief may be available under section 2 — 1401 of the Code of Civil Procedure (735 ILCS 5/2 — 1401 (West 1994)). While at one time it was the rule that claims of newly discovered evidence could not be raised in a petition under section 72 of the Civil Practice Act, which was the statutory predecessor to section 2 — 1401 (People v. Colletti, 48 Ill. 2d 135, 137 (1971)), more recent cases have recognized that such claims may be prosecuted under section 2 — 1401. People v. Sanchez, 131 Ill. 2d 417, 419-20 (1989); see Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 283-84 (1982). Notably, the two-year time limit for bringing actions under section 2 — 1401 corresponds to the two-year limit imposed by Rule 33 of the Federal Rules of Criminal Procedure, which provides the sole means for bringing claims of newly discovered evidence of innocence by convicted defendants in the federal system. Guinan v. United States, 6 F.3d 468, 470-71 (7th Cir. 1993).

The measures available in Illinois for raising claims of newly discovered evidence of innocence are at least as extensive as those that may be pursued under Texas law, which the Supreme Court approved in Herrera v. Collins, 506 U.S. 390 , 122 L. Ed. 2d 203 , 113 S. Ct. 853 (1993). Because Illinois law provides convicted defendants with sufficient means by which to raise claims of actual innocence, I do not agree with the majority that considerations of procedural due process mandate an additional remedy under the Post-Conviction Hearing Act.

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. a. 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 observation 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 significance of that event waxes or wanes depending on the strength of a subsequent showing of actual innocence. Given the passage of time, and the fading of memories, there can certainly be no assurance that an adjudication made following a new trial would be any more reliable than the adjudication of the original proceeding, which produced the defendant’s conviction. Herrera, 506 U.S. at 403-05 , 122 L. Ed. 2d at 218-19 , 113 S. a. at 862.

A defendant who cannot obtain relief in a motion for new trial or in a petition under section 2 — 1401 of the Code of Civil Procedure does not lack all recourse. In Illinois, a convicted defendant who wishes to raise a claim of newly discovered evidence outside the preceding time limits may submit a petition for executive clemency. See 111. Const. 1970, art. V, § 12; 730 ILCS 5/3— 3 — 13 (West 1994). Clemency "is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera, 506 U.S. at 412 , 122 L. Ed. 2d at 224 , 113 S. Ct. at 866 . The availability of this additional avenue of relief should not be ignored.

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. 171 111. 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. 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 to allow post-conviction relief for claims of newly discovered evidence of innocence. See Herrera, 506 U.S. at 419-21 , 122 L. Ed. 2d at 228-30 , 113 S. Ct. at 870-71 (O’Connor, J., concurring). Because this defendant was not sentenced to death for the underlying conviction, we need not determine here whether a different rule should apply to capital defendants.

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 Conn. Gen. Stat. § 52 — 470(a) (West 1991). To gain a new trial under that provision, the defendant needed to show only that he was " 'burdened by an unreliable conviction.’ ” Summerville, 229 Conn, at 419, 641 A.2d at 1367 , quoting Bunkley v. Commissioner of Corrections, 222 Conn. 444, 460-61 , 610 A.2d 598, 607 (1942). Similarly, the Florida habeas statute involved in Jones v. State, 591 So. 2d 911 (Fla. 1991), required the defendant to establish only that " 'if the matter shown had been before the trial court when judgment was entered, the court would have been precluded from entering the judgment.’ ” Jones, 591 So. 2d at 915 , quoting Russ v. State, 95 So. 2d 594, 597 (Fla. 1957). In contrast to the Connecticut and Florida statutes, our state’s Post-Conviction Hearing Act expressly limits the availability of relief to constitutional violations.

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 of the false testimony by the prosecution. In addition, today’s decision, unless otherwise limited, paradoxically will make relief more readily available when the claim of newly discovered evidence of innocence is raised in a post-conviction petition than when it is raised in a motion for a new trial. In a motion for a new trial, a defendant must show diligence in obtaining the new evidence in addition to demonstrating its conclusive character. See People v. Molstad, 101 Ill. 2d 128, 134-36 (1984); People v. Haun, 221 Ill. App. 3d 164, 175 (1991). Under today’s decision, however, a defendant who raises the same claim in a post-conviction petition may apparently obtain relief by establishing the material, noncumulative, and conclusive character of the new evidence, without regard to his diligence in obtaining it.

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