Opposition Brief — Bannister v. Illinois

No. 09-1576

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IN THE

Supreme Court of the United States

JAMES BANNISTER,

Petitioner,

Vv.

ILLINOIS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

BRIEF IN OPPOSITION

ANITA ALVAREZ LisA MADIGAN

State’s Attorney Attorney General of Illinois

Cook County, Illinois 100 West Randolph Street,

ALAN J. SPELLBERG 12th Floor

Counsel of Record Chicago, [llinois 60601

MICHELLE Katz (312) 814-3000

JOHN EK. Nowak

Assistant State’s Attorneys

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

alan.spellberg@cookcountyil.gov

Attorneys for Respondent

232976 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

a

QUESTION PRESENTED

In entering a plea agreement with a witness at

petitioner’s trial, the State relied upon the witness’s

account of the crime provided immediately following the

crime and in pre-plea interviews.

Did it violate due process for the plea agreement to

include a requirement that the witness testify at trial in

a manner consistent with his earlier statements to law

enforcement, where the same agreement — in multiple plea

provisions that petitioner does not challenge — additionally

required the witness to testify truthfully at petitioner’s

trial and required that his earlier statements also prove

to be truthful?

TABLE OF CONTENTS

QUESTION PRESENTED ...........cccecee.

EP CAPIC ER RUIN ATS so sccvccccecvovsvvcoes

TABLE OF CITED AUTHORITIES...........

Ey tS) i |) ea

ee ea yy bese ecvtereses ¥asecsess

REASONS FOR DENYING THE PETITION ..

I.

II.

III.

CONCLUSION

This Case Implicates No Split In

Authority Worthy Of Certiorari Keview.....

Certiorari Should Be Denied On The

Independent Ground That Eliminating

The So-Called “Consistency” Clause That

Petitioner Challenges Would Not Have

Changed Johnson’s Incentive To Testify

Truthfully And Consistently At Trial........

On The Merits, The Illinois Supreme

Court Correctly Concluded That The Plea

Agreement Protected Petitioner’s Right

To Due Process Because It Repeatedly

Provided That The Witness Had To Testify

Truthfully And That The Agreement

Would Become Void If The Representations

Upon Which It Was Based Were False ......

21

00

TABLE OF CITED AUTHORITIES

Page

CASES

Franklin v. State,

577 P2d 860 (Nev. 1978) ....... cece ccc cecees 17

Giglio v. United States,

405 U.S. 150 (1972) ........... 5 eae 2]

Hoffa v. United States,

ee 5 tee I 5 5000 645905 6a oe Re eae es 22

Jackson v. Virginia,

Se Sra re Se cvs eee acne ev ere eeeeens 23

People v. Allen,

Fae Ree ER AO, Ee ok es ide tnveeeveuss 14,15

People v. Garrison,

700 Fae GLP CML. 10GB), occ ce esevewes 14-15, 18

People v. Green,

228 P2d 867 (Cal Ct. App. 1951) .............. 10

People v. Jenkins,

SOT FG 10664 (Cal, DOGO). occ ecevccussccce 15,17

People v. Jones,

600 N.W.2d 652 (Mich. App. Ct. 1999) ......... 6,9

People v. Medina,

41 Cal. App. 3d 438 (Cal. Ct. App. 1974)

wv

Cited Authorities

Page

Santobello v. New York,

7 Bee eo) oe | ci iar 21

Sheriff Humboldt County v. Acuna,

819 P2d 197 (Nev. 1991) .................. passem

State v. Bolden,

979 S.W.2d 587 (Tenn. 1998)................ 6, 9, 10

State v. Burchett,

399 N.W2d 258 (Neb. 1986)........... 9,10, 16, 17

State v. Clark,

743 P2d 822 (Wash. Ct. App. 1987) ...... 9-10, 16, 17

State v. DeWitt,

286 N.W2d 379 (lowa 1979). ............... 16, 17

State v. Dixon,

413 Foe Goo (ROR. DOO)... ccc cccewevssees 15, 16

State v. Fisher,

859 P2d 179 (Ariz. 1993).............. 12, 13, 15, 16

State v. Nerison,

ee RG SS rr 9,12

State v. Rivera,

Boe BEE ei) passim

7)

Cited Authorities

Page

State v. Rivera,

86 P3d 963 (Ariz. App. Ct. 2004) .............. 15

United States v. Gilliam,

od a Sey | Se 14

United States v. Stoltz,

BG ps ME COR sc 5 on ov cc ek ewe eee ehaens 14

OTHER AUTHORITIES

Stern et al., Supreme Court Practice, § 4.4

I nok hoes kerk e aa ese ev deeeess 15

1

BRIEF IN OPPOSITION

Respondent, the State of Illinois, respectfully requests

that the Court deny the petition for a writ of certiorari

seeking review of the judgment of the Illinois Supreme

Court affirming petitioner’s convictions for first degree

murder.

STATEMENT

Following the November 9, 1989, shooting deaths of

Dan Williams and Thomas Kaufman, petitioner James

Bannister and six others were charged with two counts

of first degree murder. Pet. App. 2a, 33a. Petitioner was

tried jointly with five of his co-defendants (Thomas Carter,

Michael Meyers, Eric Smith, James Young, and Kevin

Young). /d. at 33a-34a. The remaining co-defendant,

Michael Johnson, was granted a severance and was tried

separately. /d. at 34a. All seven men were convicted on

both counts of first degree murder. /d. at 2a. After several

appeals and post-conviction petitions, the trial court

ordered a new trial for petitioner and codefendant Smith

based on a claim of newly discovered evidence following

an evidentiary hearing on their post-conviction petitions.

Id. at 3a. The remaining defendants did not receive new

trials. /bid.

Johnson did not testify at petitioner’s first trial. At

petitioner’s new trial, however, Johnson testified against

petitioner pursuant to a plea agreement reached with the

People. Jd. at 3a-4a. The plea agreement, by its terms,

required Johnson to “testify truthfully in all matters

regarding the Ist Degree Murders of Dan Williams and

Thomas Kaufman” and required that “[sJuch truthful

2

testimony shall be consistent with” his post-arrest

statements and with his statements in the pre-plea

agreement interviews. /d. at 68a. The agreement also

provided that it would be “render[ed] null and void, and all

violations of criminal law by Michael Johnson will be fully

prosecuted by Cook County State’s Attorney’s Office” if

the “[rjepresentations made by Michael Johnson during

his post-arrest statements and his pre-plea agreement

interviews, upon which this agreement was predicated .

. are found to be false.” /d. at 70a. The parties also agr eed

to move to vacate Johnson’s existing sentence and to place

the case back on the trial court’s trial call. Jbzd. As part of

the agreement, Johnson pledged to plead guilty to the first

degree murder of Dan Williams, and the People agreed to

nolle pros the first degree murder count involving Thomas

Kaufman. /bid. The People alco agreed to reeommend that

the trial court sentence Johnson to sixty years in prison.

Ibid. The agreement was contingent on the trial court

accepting all of the terms in their entirety. Jbzd.

Following a bench trial, the trial court found petitioner

guilty of the first degree murders of Dan Williams and

Thomas Kaufman. /d. at 7a. The trial evidence established

that on November 9, 1989, petitioner, Smith, Carter, and

Kevin Young ran into Johnson, James Young, and Meyers

at the Stateway Gardens housing projects in Chicago. Pet.

App. 6a. All seven men went upstairs to the apartment of

Tiya Young, the niece of Kevin Young. /b7d. There, they

talked about the recent sexual assault a few days earlier

of Kevin Young’s girlfriend. /bid. They talked about

getting revenge on the Del Vikings gang because they

believed that the Del Vikings were responsible. bid. They

discussed retaliating physically and shooting people. /bzd.

9

o

The seven men then left and went to another building

in the complex. Jbid. All had guns. /bid. Petitioner had a

.so7 revolver. Pet. App. 39a.

When they arrived at 3618 South Federal Street, a

man with the nickname “Rick James” came out of that

building. /d. at 6a, 39a. Rick James greeted petitioner by

petitioner’s nickname. Pet. App. 6a. Kevin Young shot at

Rick James. /b7d. After he shot at Rick James, all seven

men ran to the 3547-3549 building. /d. at. 6a, 39a.

The seven armed men stayed at the 3547-3549 building

for ten to twenty minutes, and then they went back to

Tiya Young’s apartment. Pet. App. 40a. They stayed there

for approximately 45 minutes to an hour and talked and

smoked. /bid. They then left that apartment and walked

to another building in the complex. /d. at 6a, 40a.

When they arrived, the men encountered Daniel

Nicholson, who was in a wheelchair. /bz7d. Nicholson had

just come off the ramp and had turned into the building

in his wheelchair. Pet. App. 40a. Kevin Young, Smith,

Meyers, and James Young went into the hallway behind

Nicholson. /d. at 40a, 42a. Petitioner, Johnson, and Carter

stood on the first-floor porch. /bid. The four men near

Nicholson robbed him. /d. at 6a, 40a. Kevin Young reached

into Nicholson's pockets, and Nicholson took off some of

his gold chains and gave them to Kevin Young. Pet. App.

40a. At this point, all seven men had their guns out. Jd.

at 40a, 42a.

After Kevin Young took the chains from Nicholson, the

seven men left and returned to 3547-3549 South Federal

Street. Jd. at 6a, 40a. Johnson then told the others that he

4

was going upstairs to his apartment to get a ski mask and

some “wave” caps, which resemble scarves. /bid. After

retrieving the ski mask and caps, Johnson rejoined the

others and gave caps to Kevin Young and Carter, while

keeping the ski mask for himself. /b7d.

The seven men then walked together through the

breezeways to the building at 3517-3519 South Federal,

where Johnson and Meyers went to the side of the building

near the back hallway. /d. at 40a. Smith, Kevin Young, and

Carter stood behind what Johnson called the “mailbox”

in the breezeway area. /bid. Petitioner and James Young

stood on the 3519 side of the building. /bzd.

As Johnson and Meyers walked through the back

hallway, they encountered Gregory Gordon, Willie Sims,

and two women who were standing by the elevators.

Ibid. Johnson was wearing his ski mask, and Meyers was

wearing a “wave” cap. /bid. Johnson and Meyers also

encountered Denise Brady, Antoinette Barry, and Joe

Johnson, who were emerging from the 3517 building via

the stairway. /bzd.

Johnson then heard Smith say, “come here, mother

* * *” Id. at 41a. Nicholson and Gordon also heard that

statement. /d. at 42a-43a. Upon hearing the gunshots,

Johnson and Meyers went to the front of the building

to see what was happening. /d. at 7a, 4la. Johnson saw

Dan Williams running. /b2d. Petitioner, Smith, Johnson,

Meyers, Carter, Kevin Young, and James Young all fired

their guns at Williams. /bzd. Kevin Young stood behind

the mailbox, just under the breezeway, with Smith and

Carter. Jd. at 41a. Petitioner and James Young stood on the

ramp from the 3519 side of the building. /bid. Petitioner,

5

James Young, Kevin Young, Smith, and Carter stepped out

from underneath the building while shooting at Williams.

Ibid. Johnson also shot at Williams, who ran to the playlot,

jumped the fence, and ran toward 35th Street and the

[llinois Institute of Technology building. /d. at 7a, 41a.

Williams was fatally shot upon arriving at the building, as

was Thomas Kaufman, a security guard there. Jd. at 2a.

When the shooting stopped, Johnson retrieved a .25

automatic shell casing that had been discharged from his

gun and put it in his pocket. /d. at 41a. All seven of the

shooters then went back south towards the 3547 building.

Id. at Ta, 41a.

At the conclusion of the bench trial, the court found

petitioner and co-defendant Smith guilty of the first

degree murders of Dan Williams and Thomas Kaufman

and sentenced petitioner to natural life in prison. Jd. at 7a.

Petitioner appealed and raised several issues, including

whether “he was denied due process and deprived of a fair

trial based upon the plea agreement entered into between

the prosecution and co-defendant Michael Johnson.” Jd.

at 33a.

The Illinois Appellate Court rejected all of petitioner’s

arguments. About the challenge to Johnson’s plea

agreement, the court held that petitioner did not have

standing to contest the validity or enforcement of the

plea agreement because petitioner was not a beneficiary

of that agreement. /d. at 53a. And even if petitioner had

standing, the appellate court held, and “even if the plea

agreement were found to be invalid, the only consequence

would be that it could not have been enforced by either the

State or Johnson.” /d. at 56a. The court further noted that

6

petitioner had failed to cite any authority indicating that a

determination that the piea agreement was invalid would

have required suppression of Johnson’s testimony. /bid.

The appellate court also rejected petitioner’s

argument that he was deprived of due process and a fair

trial based upon the terms of the plea agreement, which

required Johnson to testify truthfully and consistently

with his post-arrest statements and statements made to

the prosecutors. /d. at 48a-52a. Following the reasoning of

decisions from other States, the appellate court held that

consistency provisions such as the one in Johnson’s plea

agreement are permissible when they are accompanied

by terms requiring the witness to testify truthfully. Jd.

at 48a-5la. Accordingly, the appellate court concluded

that “Johnson’s testimony was not tainted by the plea

agreement, and the admission of his testimony, induced by

the plea agreement, did not violate the petitioner’s rights

to due process and a fair trial.” Jd. at 52a.

Following the appellate court’s decision affirming his

convictions, petitioner filed a petition for leave to appeal

to the Illinois Supreme Court, which that court allowed.

Id. at la-2a, 7a-8a. Like the appellate court, a majority of

the supreme court analyzed cases from other jurisdictions

and held that the plea agreement here did not violate

petitioner’s due process rights because it repeatedly

required Johnson to testify truthfully. Jd. at 10a-17a.

Relying on State v. Rivera, 109 P.3d 83 (Ariz. 2005),

State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), People v.

Jones, 600 N.W.2d 652 (Mich. Ct. App. 1999), and Sheriff

Humboldt County v. Acuna, 819 P.2d 197 (Nev. 1991),

and relying on the specific terms used in Johnson’s plea

agreement, the supreme court held that the agreement did

not taint Johnson’s testimony, and its admission did not

7

violate petitioner’s due process rights. Pet. App. 13a-17a.

As the supreme court explained:

Here, the plea agreement repeatedly and

explicitly obligated Johnson to testify truthfully.

The agreement also provided that Johnson would

testify in a manner that was consistent with his

prior statements to police and to prosecutors,

but if any of the representations contained in

his prior statements were found to be false, the

agreement would be rendered null and void.

Truthfulness was the overriding requirement

of the agreement. The agreement neither

compelled Johnson to disregard his witness’

oath, nor bound him to a particular script or

result. Accordingly, Johnson’s testimony was

not tainted by the plea agreement, and the

admission of his testimony did not violate the

defendant’s rights to due process and a fair

trial.

Id. at 17a. The supreme court observed that, at trial:

[tlhe State, on direct examination of Johnson,

fully disclosed the terms of the plea agreement

with him, and the defendant had an opportunity

to cross-examine Johnson about the agreement

and the benefits he would receive. The trial

court heard the details of Johnson’s plea

agreement and found him to be credible

nonetheless. As the finder of fact, it was the

trial court’s responsibility to resolve alleged

inconsistencies and conflicts in the evidence, as

well as to weigh the testimony and determine

the ¢redibility of the witnesses.

Td. at 18a.

8

Following the Illinois Supreme Court’s decision,

petitioner filed a petition for rehearing, which the court

denied on January 25, 2010. Jd. at 67a.

REASONS FOR DENYING THE PETITION

Petitioner’s claim regarding whether the Due

Process Clause is violated by a plea agreement that

requires truthful testimony consistent with a witness’s

prior statements is not worthy of certiorari review for

three reasons. First, no split of authority exists on this

point. The lower courts agree that plea agreements like

Johnson’s are proper because they expressly require

the witness to testify truthfully. Second, even if the

so-called “consistency” clause had been excised from

this particular plea agreement, the alleged incentive for

Johnson to testify consistently would have remained the

same because the unchallenged terms in the “Limitations

of Plea Agreement” would have rendered the agreement

“null and void” if he did not testify truthfully at trial or

if the representations he made to police and prosecutors

upon which the agreement was predicated were found to

be false. Finally, the Illinois Supreme Court was correct

on the merits.

I.

This Case Implicates No Split In

Authority Worthy Of Certiorari Review.

As the Illinois Supreme Court and many other courts

have held, a plea agreement based on a witness testifying

similarly to, or consistently with, a prior statement is

proper under the Due Process Clause so long as the plea

9

agreement is also expressly conditioned on the witness

testifying truthfully. See State v. Rivera, 109 P.3d 83,

86-89 (Ariz. 2005) (en banc) (also citing cases); People v.

Jones, 600 N.W.2d 652, 657-658 (Mich. App. Ct. 1999);

State v. Bolden, 979 S.W.2d 587, 591-592 (Tenn. 1998);

Sheriff, Humboldt County v. Acuna, 819 P.2d 197, 198

(Nev. 1991); State v. Nerison, 401 N.W.2d 1, 8 (Wis. 1987).

As Jones explained:

When a prosecutor decides to bargain with a

witness on the basis of representations made by

the witness during negotiations with the state,

it is reasonable for the prosecutor to rely on the

witness’ assertion that such representations are

truthful — especially when the representations

are consistent with other facts within the

prosecution’s knowledge of the case.

Jones, 600 N.W.2d at 657. Accordingly, “it is reasonable

to allow the prosecution to condition a grant of immunity,

or other favorable treatment, on the truthfulness of

the information providing the basis for the favorable

treatment.” Jbid. In Jones, as here, “by agreeing to

testify truthfully at trial in conformance with their

prior statements to the police, the immunized witnesses

effectively represented to the prosecution that their prior

statements had been truthful.” Jd. at 658.

Likewise, in Bolden, the Tennessee Supreme Court

held that expecting particular testimony from a witness

as a condition of a plea agreement is not a violation of

due process so long as the testimony must be truthful.

Bolden, 979 S.W.2d at 591-92 (citing State v. Burchett,

399 N.W.2d 258, 266-67 (Neb. 1987); State v. Clark, 743

10

P.2d 822, 828-29 (Wash Ct. App. 1987); Acuna, 819 P.2d

at 200-01). As the Bolden court observed, “{sleveral state

courts have concluded that requiring specific testimony

of a co-defendant as a condition of a plea agreement is

not a violation of due process so long as the testimony

is required to be truthful.” Jd. at 591. The court noted

that “‘it is only where the prosecution has bargained for

false or specific testimony, or a specific result, that an

accomplice’s testimony is so tainted as to require * * *

preclusion.” Jd. (quoting Burchett, 399 N.W.2d at 266-67).

Bolden thus distinguished on their facts cases in which

the plea agreement required only that the witness testify

in a particular fashion or that the testimony produce a

specific result, without regard to the truthfulness of the

testimony. /d. at 592 n.3 (citing People v. Medina, 41 Cal.

App. 3d 488, 455 (Cal Ct. App. 1974); People v. Green,

228 P.2d 867, 868-72 (Cal Ct. App. 1951)). Because the

plea agreement in Bolden specifically required the co-

defendant to testify truthfully, that condition “necessarily

engulfed” the other terms in the agreement, compliance

with which was “hinged upon truthful testimony.” /d. at

592. The court held that the codefendant’s testimony did

not violate the defendant’s rights to due process and a fair

trial even though it had been induced by a plea agreement

that required consistency with a prior statement because

that same agreement required truthful testimony. /d. at 593.

The Nevada Supreme Court has explained why such

agreements are not just legal and enforceable, but also

reasonable:

[I]t would be neither realistic nor fair to expect

the State to enter into a bargain without

assurances that the promisee’s trial testimony

11

would be consistent with the information he

or she provided to prosecutors as a basis for

leniency. We are simply unwilling to assume,

and therefore base a rule of law upon, the

proposition that our prosecutors will sit down

with persons vulnerable to prosecution and

commit them to testifying perjuriously. If the

person seeking the bargain purports to have

true information, and the State concludes that

such information is reliable and would be of

assistance in prosecuting other persons, the

State, in return for a commitment of leniency,

would have every right to expect that the

promisee’s trial testimony would be essentially

consistent with the original information upon

which the State’s promise was induced. If the

promisee reneges on the commitment to provide

truthful and consistent trial testimony, the

State will be free to withdraw from the bargain.

Acuna, 819 P.2d at 198. Accordingly, the Nevada Supreme

Court held that “[w]e now conclude that bargaining for

specific trial testimony, i.e., testimony that is essentially

consistent with the information represented to be factually

true during negotiations with the State, and withholding

the benefits of the bargain until after the witness has

testified, is not inconsistent with the search for truth or

due process.” /d. (emphasis added).

Similarly, the Wisconsin Supreme Court has held

that a plea agreement that required a witness to testify

consistently with his testimony at an earlier hearing was

“no different from any other [case] involving negotiated

plea agreements with accomplices in exchange for their

12

testimony.” Nerison, 401 N.W.2d at 8. Nerison explained

that, “[ulltimately, it is for the jury as factfinder to weigh

the testimony and evaluate credibility before making its

ultimate determination in the form of its verdict as to

what is the ‘truth.’” /d.

The Arizona Supreme Court reached the same result

in Rivera. There, the prosecution entered into plea

agreements with two witnesses who admitted to being

accomplices of the defendant. 109 P.3d at 84. Each witness

avowed in the agreement that statements given in earlier

videotaped interviews were fully accurate and truthful.

Id. And the agreements stated that each agreement

by the State was made on the basis that the witnesses’

avowals were true. /d. The witnesses also agreed in the

plea agreement to testify fully, accurately, and truthfully

in any trial against her co-defendants. /d. At trial, each

witness testified that she understood that any significant

variation from the statements each made in the earlier

pre-trial interview could cause that witness to lose the

benefit of her plea agreement. /d. at 84-85. Each witness

also testified that she understood that the plea agreement

required her to testify truthfully, and that she had done

so. Id. at 85.

The defendant in Rivera argued that, pursuant to prior

Arizona precedent (State v. Fisher, 859 P.2d 179 (Ariz.

1993)), the plea agreements contained illegal consistency

clauses that deprived him of a fair trial. Rivera, 109 P.3d

at 85. The Arizona Court of Appeals agreed and reversed

and remanded for a new trial. /bid. The Arizona Supreme

Court subsequently “granted review to decide whether

the court of appeals misapplied Fisher /] in holding

that the accomplice witnesses’ plea agreements were

impermissible consistency agreements.” /bid.

13

The Arizona Supreme Court reversed the court of

appeals and affirmed the defendant’s conviction, holding

that the plea agreements were lawful. /d. at 86-89.

The court noted that the plea agreements required the

witnesses to testify truthfully and to avow that their

prior statements were truthful. /d. at 86. The Arizona

Supreme Court then distinguished Fisher because

the plea agreement there did not require the witness

to testify truthfully, but only required the witness to

testify consistently with her prior statement regardless

of its truth. bid. As the court explained, “[oJur concern

in Fisher [] was that enforcing a consistency provision

would allow the prosecutor ‘to persuade an accomplice

to disregard his oath of truthfulness’ in order to obtain a

lenient plea deal.” /bid. (quoting Fisher, 859 P.2d at 184).

Significantly, the Arizona Supreme Court stated that

“(t]he critical issue is not whether the witness will feel

an obligation to testify to the same facts earlier told the

prosecutors or police, but rather whether the prosecution

has conditioned the plea agreement upon such testimony,

regardless of the truth of the earlier statement.” Jbid. The

court observed that “a consistency agreement has the

strong potential to procure untruthful testimony if the

agreement is not also conditioned upon the requirement

of truthful testimony,” and that “lilt is this tainting of

the ‘truth-seeking function of the courts’ that makes

consistency provisions invalid.” /bid. As a result, the

court held, “what Fisher // forbids is an agreement that

requires the witness to testify consistently with a previous

statement at trial even when doing so would render the

trial testimony untruthful.” /hid.

Here, the plea agreement with Johnson repeatedly

required that Johnson testify truthrully. For example, in

14

its first sentence, the agreement states: “It is agreed that

Michael Johnson will testify truthfully regarding the Ist

Degree Murders of Dan Williams and Thomas Kaufman

** *” Pet. App. 68a. The next sentence states that “[s]

uch truthful testimony shall be consistent with” Johnson’s

post-arrest statements and with his statements in the pre-

plea agreement interviews. /bid. The first sentence of the

next paragraph also states that “i]t is agreed that Michael

Johnson will testify truthfully in the case of People v.

James Bannister and Eric Smith * * *” Pet. App. “% The

first sentence of the following paragraph again refers to

Michael Johnson’s “truthful testimony” in this case. Pet.

App. 69a. The trial court, as the trier of fact, heard all of

the evidence, including the facts surrounding Johnson’s

plea agreement. Pet. App. 18a. After considering all of

these facts, the court found Johnson to be credible and

that Johnson told the truth when he testified at trial. Pet.

App. 18a. The decision of the Illinois Supreme Court below

thus is in accord with the forgoing authority. In contrast,

petitioner’s supposed split is illusory.

Petitioner points to the decisions of the United States

Court of Appeals for the Armed Forces in United States

v. Gilliam, 23 C.M.A. 4 (1974), and United States v.

Stoltz, 14 C.M.A. 461 (1964). Pet. at 11-12. Significantly,

however, neither Gilliam. nor Stoltz involved a due process

challenge, and the plea agreements at issue in those two

cases lacked truthfulness provisions. See Gilliam, 23

C.M.A. at 8; Stoltz, 14 C.M.A. at 464-65. Gilliam and

Stoltz , therefore, do not conflict with the decision below.

Nor do the California cases on which petitioner relies

conflict with the decision below. Petitioner cites People

v. Allen, 729 P.2d 115, 180-31 (Cal. 1986), and People v.

~

15

Garrison, 765 P.2d 419, 430 (Cal. 1989) (Pet. at 12-13), both

of which relied on People v. Medina, 41 Cal. App. 3d 438

(Cal. Ct. App. 1974). In none of those cases, however, did

the agreement contain a truthfulness provision. Indeed,

the California Supreme Court more recently clarified the

Medina rule, holding that a plea agreement requiring an

accomplice to testify fully and truthfully is valid, “even

if it is clear the prosecutor believes the witness’s prior

statement to the police is the truth, and deviation from

that statement in testimony may result in the withdrawal

of the plea offer.” People v. Jenkins, 997 P.2a 1044, 1119-

20 (Cal. 2000). Such an agreement does not dictate the

accomplice’s testimony in a manner that would offend

due process. /bid. Accordingly, Garrison and Allen

are distinguishable from the instant case, and Jenkins

makes clear that there is no split between California and

Illinois over agreements, such as Johnson’s, that require

the witness to testify truthfully. Accordingly, Garrison

and Ailen are not grounds for granting certiorari. See

generally Stern et al., Supreme Court Practice, § 4.4,

at 230 (8th ed. 2002) (“A conflict with a decision that has

been discredited or that has lost all weight as authority by

reason of intervening decisions of * * * the same court{[]

will not be an adequate basis for granting certiorari.”).

That leaves only State v. Dixon, 112 P.3d 883 (Kan.

2005), but because the Kansas Supreme Court relied on

overturned authority, Dixon provides no grounds for

granting certiorari, either. Dixon relied for its holding

almost exclusively on State v. Fisher, 859 P.2d 179 (Ariz.

1993), and the appellate court decision in State v. Rivera,

86 P.3d 963 (Ariz. App. Ct. 2004) (Dixon, 112 P.3d at

914-17), yet failed to recognize that the Arizona Supreme

Court, two months earlier, had reversed the appellate

16

court in Rivera and limited Fisher. State v. Rivera, 109

P.3d 83, 86 (Ariz. 2005). See supra pp. 12-14. Given that

Dixon conflicts with the decisions of all other courts

that have addressed the constitutionality of consistency

provisions, when those provisions are coupled with a

requirement that the witness testify truthfully, including

the Arizona Supreme Court in the very case on which

Dixon itself relied, Dixon’s future in Kansas is, at best,

uncertain.

Moreover, contrary to petitioner’s assertion, he would

not likely prevail under the laws of Iowa, Nebraska, or

Washington, states in which petitioner acknowledges

“courts have not directly confronted the issue.” Pet. at 14.

At the outset, State v. DeWitt, 286 N.W.2d 379, 384-85 (lowa

1979), is far afield, for in that case the plea agreement did

not require the witness to testify consistently with prior

statements or that such consistent testimony be truthful.

State v. Burchett, 399 N.W.2d 258, 266-67 (Neb. 1986), is

likewise in line with the decision below because there, as

here, the plea agreement required the witness to speak

truthfully to a prosecutor about the crime and to testify

truthfully at trial. Burchett, 399 N.W.2d at 266-67. The

Nebraska Supreme Court confirmed the propriety of the

agreement on the basis of the truthfulness requirement,

Burchett, 399 N.W.2d at 267, just as the Illincis Supreme

Court did below. And in State v. Ciark, 743 P.2d 822, 828

(Wash. Ct. App. 1987), the court followed Medina, which,

as explained, see supra p. 15, has itself been clarified to

preclude any constitutional infirmity in a plea agreement

requiring an accomplice to testify truthfully, “even if

it is clear the prosecutor believes the witness’s prior

statement to the police is the truth, and deviation from

that statement in testimony may result in the withdrawal

17

of the plea offer.” Jenkins, 997 P.2d at 1120. Moreover,

the agreement in Clark only imposed conditions on the

witness’s statement concerning the crime, not his later

testimony at trial. Clark, 743 P.2d at 859. In short, DeWitt,

Burchett, and Clark do not support the due process rule

that petitioner avows.

Finally, as to petitioner’s claim that he might prevail

under the approach of the Nevada Supreme Court in

Franklin v. State, 577 P.2d 860 (Nev. 1978), Pet. at. 14-15,

Franklin is no longer good law, having been expressly

overruled by Sheriff, Humboldt County v. Acuna, 819 P.2d

197 (Nev. 1991) (“Having reevaluated the Franklin rule

and concluded that it should not be further perpetuated,

we reverse without determining whether the district court

erred in finding a violation of the F’ranklin standard”).

In Acuna, upon which the Illinois Supreme Court relied,

the Nevada court “conclude[d] that [its] rather isolated

Franklin rule is of limited benefit to the search for truth,

and that it in fact may tend to frustrate truth and create

incentives for dissembling at trial.” Acuna, 819 P.2d at

198. The court then held that “bargaining for specific trial

testimony, i.e., testimony that is essentially consistent with

the information represented to be factually true during

negotiations with the State, and withholding the benefits

of the bargain until after the witness has testified, is not

inconsistent with the search for truth or due process.” /d.

Nevada law thus does not conflict with Illinois’s.

Petitioner attempts to distinguish Acuna by asserting

that it “reaffirmed * * * that the prosecution may not

present testimony ‘where the bargain [itself] compels

the witness to provide particularized testimony.” Pet. at

15 n.5 (quoting Acuna, 819 P.2d at 201). But Acuna was

18

speaking in the context of plea agreements that require

only consistent testimony and not that the testimony also

be truthful. Here, the agreement repeatedly required

that the testimony be truthful, which makes petitioner’s

attempt to distinguish Acuna unavailing. Indeed, Acuna

cited Medina and Garrison as support, and as explained

supra p. 15, these California cases are consistent with

the decision below.

In short, petitioner’s alleged split is illusory, and

certiorari review is unwarranted.

Il.

Certiorari Should Be Denied On The

Independent Ground That Eliminating

The So-Called “Consistency” Clause That

Petitioner Challenges Would Not Have

Changed Johnson’s Incentive To Testify

Truthfully And Consistently At Trial.

Petitioner challenges just one part of the plea

agreement with Johnson: the one-sentence requirement

that “[sluch truthful testimony shall be consistent with

Michael Johnson’s post-arrest statements in December

28, and December 29, 1989, to Chicago Police officers

and Cook County Assistant State’s Attorneys and his

statements made to Cook County State’s Attorney

personnel during his pre-plea agreement interviews

on April 29 and May 24, 2004.” Pet. App. 68a. Even if

this so-called “eonsistency” clause was excised from the

plea agreement, however, Johnson’s alleged incentive to

testify consistently with his earlier statements would have

remained the same in light of other unchallenged terms in

the “Limitations of Plea Agreement” included in his plea.

19

The “Limitations of Plea Agreement” section provides

that the agreement would become “null and void” if one

of several things occurred, including (in clause “B”)

Johnson’s “[fJailure * * * to truthfully testify under oath

in open court in the above matters” or (in clause “F”) a

finding that “[r]lepresentations made by * * * Johnson

during his post-arrest statements and his pre-plea

agreement interviews, upon which this agreement was

predicated,” are “false.” Pet. App. 70a. Read together,

these “truthfulness” provisions alone required Johnson

to testify at triai in substantial conformance to his prior,

post-arrest and pre-trial statements, and petitioner

cannot claim any meaningful distinction between that

(unchallenged) incentive to testify consistently and the

(challenged) incentive to do so purportedly instilled in

Johnson by the “consistency” provision. If the latter gave

Johnson any additional incentive to testify consistently in

this case, it is difficult to see what that added incentive

was, much less how it would be constitutionally significant

on these facts. Indeed, notwithstanding the “truthfulness”

and “consistency” provisions, Johnson felt free to make

some adjustments to his account between his post-arrest/

pre-trial statements and petitioner’s trial. See Pet. App. 7a

(noting that Johnson’s trial testimony was “substantially

consistent with the statement that he gave to the police on

December 29, 1989, the day after his arrest”) (emphasis

added). For instance, in his 1989 post-arrest statement,

Johnson omitted the entire encounter and robbery of

Nicholson, which occurred between the confrontation

with Rick James and the shooting of the victims. (Pet.

App. 73a-83a). At trial, however, Johnson described the

robbery of Nicholson in detail. Pet. App. 40a. But to avoid

implicating petitioner as a murderer — which alone might

have affected the outcome of this case — Johnson would

20

have had to change his testimony profoundly between his

post-arrest/pre-plea statements and trial, and if Johnson

had changed his account so fundamentally, the State

would have known that at least one of two things was

true: either Johnson lied when he gave his post-arrest/

pre-plea statements, or he lied in court. Cf. Rivera, 109

P.3d at 87 (theorizing that, in some cases, “truthfulness”

requirements might permit witness to make some

adjustments to account between pre-trial statements and

trial testimony). Either way, the plea agreement would

have been void under the “truthfulness” provisions alone,

without resort to the challenged, “consistency” provision.

In short, even without the challenged, express

“consistency” clause at the beginning of the agreement,

the rest of the agreement — which petitioner has not

challenged — would have provided the same alleged

incentive to Johnson to testify consistently with his earlier

statements. Petitioner does not contend a split exists

regarding the constitutionality of these “truthfulness”

requirements. Indeed, petitioner appears to endorse them.

See Pet. at 24 (arguing that “truthfulness” provisions in

Johnson’s plea agreement were not enough to cwre a due

process violation). But this guts his due process claim

on these facts, for he must argue that the challenged

“consistency” provision alone created an unconstitutional

incentive for Johnson to testify consistently at trial,

but he cannot begin to make that showing here where

unchallenged portions of the agreement already created

the same incentive. Accordingly, under these facts,

certiorari would be inappropriate.

21

III.

On The Merits, The Illinois Supreme

Court Correctly Concluded That The Plea

Agreement Protected Pétitioner’s Right

To Due Process Because It Repeatedly

Provided That The Witness Had To Testify

Truthfully And That The Agreement Would

Become Void If The Representations Upon

Which It Was Based Were False.

Johnson’s plea agreement protected petitioner’s right

to due process. The agreement repeatedly required that

Johnson testify truthfully. Pet. App. 68a-70a. While the

agreement also provided that his truthful testimony

had to be consistent with his prior statements to the

police and prosecutors, it also expressly stated that the

agreement would be void if it was later found that those

prior statements were false. Pet. App. 68a, 70a. Petitioner

does not object to the “truthfulness” provisions, and the

Illinois Supreme Court correctly concluded that the plea

agreement here protected petitioner’s right to due process

because “[t}ruthfulness was the overriding requirement

of the agreement.” Pet. App. 17a.

Unquestionably, “[t]he disposition of criminal charges

by agreement between the prosecutor and the accused,

sometimes loosely called ‘plea bargaining,’ is an essential]

component of the administration of justice.” Santobello v.

New York, 404 U.S. 257, 260 (1971). Accomplice testimony

is generally admissible at trial, even if it was procured

by the offer of a lenient sentence and secured by a plea

agreement. See Gigito v. United States, 405 U.S. 150,

154-55 (1972). Cross-examination, not exclusion, is the

22

appropriate method for probing the truthfulness of a

witness’s statement. Hoffa v. United States, 385 U.S. 293,

311 (1966). “The established safeguards of the Anglo-

American legal system leave the veracity of a witness

to be tested by cross-examination, and the credibility of

his testimony to be determined by a properly instructed

jury.” Jd. Moreover, the Nevada Supreme Court observed

in Acuna, “it would be neither realistic nor fair to expect

the State to enter into a bargain without assurances that

the promisee’s trial testimony would be consistent with the

information he or she provided to prosecutors as a basis

for leniency.” 819 P.2d at 198. “We are simply unwilling

to assume, and therefore base a rule of law upon, the

proposition that our prosecutors will sit down with persons

vulnerable to prosecution and commit them to testifying

perjuriously.” Jd.

Petitioner does not object to the truthfulness

provisions of the agreement or to the provision rendering

the agreement void if Johnson’s pre-plea statements were

false. Instead, petitioner argues that the “consistency”

provision makes “an accomplice feel[{] pressure to stick

to the prosecution’s preferred version of events” and

is tantamount to “vouching.” Pet. at 25-27. Petitioner’s

argument, however, proves too much. With every plea

agreement, the witness may feel implicit pressure

to testify favorably to the prosecution, but as Rivera

recognized, “[(s}killful cross-examination should expose to

the jury any motivation the witness may have to lie, such

as to preserve a favorable plea deal, and the jury must

determine the witness’s credibility.” Rivera, 109 P.3d at

85 (citing Hoffa, 385 U.S. at 311).

23

More importantly, the prosecution cannot permit

perjury, and in this sense a prosecutor always implicitly

“vouches” for the accuracy of the testimony of its

witnesses, regardless of whether the witness is testifying

pursuant to a plea agreement or not. Either way, the

prosecution would not have a witness testify if it believed

that the witness would testify falsely. Thus, the alleged

“pressure” on Johnson and the concern that the agreement

amounted to “vouching” for him is no different than if

the plea agreement did not contain the one-sentence

consistency provision to which petitioner objects.

In the end, petitioner received due process because the

agreement here repeatedly called for Johnson’s testimony

to be truthful. And the prosecution, on direct examination

of Johnson, fully disclosed the terms of his plea agreement.

Pet. App. 18a. Petitioner cross-examined Johnson about

the agreement and the benefits he would receive. /b2d.

The trial court heard all of the details of Johnson’s plea

agreement and still found him to be credible. /bid. As

the trier of fact, it was the trial court’s “responsibility

* * * to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). Thus, the Illinois Supreme Court correctly

concluded that “Johnson’s testimony was not tainted by

the plea agreement, and the admission of his testimony

did not violate the defendant’s rights to due process and a

fair trial.” Pet. App. 17a. Since the lower court reached the

correct result on the merits, certiorari is not warranted.

24

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ANITA ALVAREZ Lisa MaApIGAN

State’s Attorney Attorney General of Illinois

Cook County, Illinois 100 West Randolph Street,

ALAN J. SPELLBERG 12th Floor

Counsel of Record Chicago, Illinois 60601

MICHELLE KaATz (312) 814-3000

JOHN EF. Nowak

Assistant State’s Attorneys

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

alan.spellberg@cookcountyil.gov

Attorneys for Respondent