In an op-ed piece (here) in the Chicago Sun-Times, Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University School of Law, is urging Cook County (IL) State’s Attorney Anita Alvarez to reconsider her decision to seek to indict on a perjury charge Willie Johnson, after he recanted his 1994 testimony, which led to the conviction and life sentencing of the Center’s client, Cedric Cal.
Johnson was the sole survivor of a gang-related drive-by shooting that killed two of his friends. He was wounded nine times but survived and named Cal and Albert Kirkman as the shooters. In recanting his testimony seventeen years later in 2011, Johnson said that he knew all along that the two he fingered were not the perpetrators. He claimed that if he had identified the actual shooters back in 1994, he would have put himself and his family in danger.
According to Warden, Cook County has had 18 known cases in which witnesses’ recantations have turned out to be the truth as evidenced by eventual official exonerations or pardons. The judge in this case did not believe the recantation Johnson gave under oath. In breaking with the tradition of former state’s attorneys, Alvarez’s office then sought to indict Johnson for perjury.
As Warden points out, the “trouble with the Alvarez approach is that it stands to chill recantations across the board — truthful or untruthful — which clearly is contrary to the interest of justice and the integrity of Cook County criminal justice system.”
Warden suggests the state’s attorney adopt a policy that recognizes the credibility of some recantations. Prosecutors should use their discretion to pursue perjury charges only when they can prove beyond a reasonable doubt that the recantation is a lie.
A common belief that people generally tell the truth the first time has been undermined by wrongful convictions, which have revealed that there may have been more incentives for a witness to lie initially than to recant years later. Miscarriages have exposed the pressures, incentives, and motivations that prompt false accusations in the first place. In some instances officials have not had clean hands in the original perjury and the resulting injustice.
A policy to seek a perjury indictment for one who provides conflicting testimony in recanting or because a judge determines that the original testimony is more likely true than the recantation, is not in the interest of finding truth in justice.
In addition to the op-ed piece, Warden has written a letter to Alvarez—signed by 22 former judges and prosecutors—which expresses concern over the indictment of Johnson and urges his suggested policy.
The lessons of wrongful convictions require new thinking and thoughtful policy in criminal justice. Indicting a witness who recants reflects either an indefensible ignorance regarding the history of truthful recantations that helped expose wrongful convictions or an intention to preserve false testimony and discourage the correcting of miscarriages of justice. Warden has asked Alvarez to adopt a policy that enables the revelation of truth and the correction of injustices, however delayed. The citizens of Cook County should be keenly interested in her response.