The Honorable Justice Freeman delivered the opinion of the court: Justice McMORROW, specially concurring: Justice Miller, dissenting: Chief Justice Bilandic joins in this dissent.
The opinion of the court was delivered by: Freeman
JUSTICE FREEMAN delivered the opinion of the court:
The question in this case is whether due process is implicated in a claim of innocence based upon new evidence so as to permit the claim to be raised in a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)). We hold that it is.
In 1982, Kurtis Washington was sentenced to 25 years in prison for murdering Tony Hightie. Hightie had been murdered outside his home in Chicago shortly after 9 p.m. on May 9, 1980. Washington was implicated in the crime by Donna McClure, Hightie's girlfriend, and Ronald Tapes.
McClure and Tapes witnessed the murder. At trial, they said that they had been sitting in a parked car near Hightie's home when they were approached by a man. The man said that he was looking for someone named Will. When McClure and Tapes proved no help, the man approached Hightie just as he left his home. Hightie had been wearing a jacket and hat that belonged to Tapes' brother who was named William. McClure and Tapes said that after a few words with Hightie, the man shot him. The man, McClure and Tapes said, was Washington.
Washington's defense was that he had been at a grocery store at the time of Hightie's murder. The store cashier, a person who had accompanied Washington, and Washington's mother all testified to that fact.
The appellate court affirmed the conviction and sentence on direct review (No. 1-82-1868 (unpublished order under Supreme Court Rule 23)). In 1990, Washington filed a post-conviction petition, alleging nine grounds of error, six of which asserted ineffective assistance of trial counsel. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 2, 8.
One of the grounds was that Washington's trial counsel, a private attorney who also served as Washington's appellate counsel, failed to investigate evidence that someone other than Washington murdered Hightie. The claim was supported with an affidavit of Jacqueline Martin dated March 3, 1990. Evidence was permitted on that as well as the other ineffective-assistance claims.
The trial judge held an in camera hearing in which he considered Martin's testimony. Underlying the claim at issue in this appeal is the substance of that testimony.
Martin told how Hightie had been shot after having been mistaken for someone else. Martin, who was 16 years old at the time, told how she had been present when Marcus Halsey, then her boyfriend, and Frank Caston had left Halsey's house to revenge an earlier beating of Halsey's brother. She, Halsey, Caston, and Caston's girlfriend drove in a car to an alley in a neighborhood in Chicago. She later learned that it happened to be the neighborhood where Hightie lived. Martin told how, after Halsey and Caston left the car, she had heard two gunshots, and, when the two returned, she had heard Halsey say "it was the wrong guy." Halsey and Caston later changed clothes, discarding in another alley what they had earlier worn. Martin said that they drove to the home of one of Halsey's sisters, where she stayed the rest of the night.
Halsey was questioned by police the next morning. Martin accompanied him to the police station, as did Caston's girlfriend. At the station, Martin found in her pocket bullets that Halsey had handed to her the night before. She said that she threw the bullets away.
Martin said that after the police questioning, Halsey had threatened to kill her if she told anyone what had happened. Halsey's threats continued, Martin said, and so she eventually stopped going to Halsey's house. Some months later, Halsey's brother confronted her as she was walking near a park and forcibly took her to Halsey. She said that she was kept against her will at Halsey's house for three weeks to a month. She eventually escaped with the help of an unnamed acquaintance whom she happened to see while looking out a window. Martin said that she went immediately to her mother's house. That same day she left for Mississippi. She stayed there for six years. Martin told how at the time of the hearing she still feared Halsey.
In view of Martin's in camera testimony, Washington successfully sought to amend his post-conviction petition to add a tenth claim based upon the newly discovered evidence.
The trial judge denied relief under the first nine claims Washington asserted, including the ineffectiveness claim which was supported by Martin's affidavit and testimony. Regarding that claim, the judge referred to testimony given by Washington's defense counsel that, in preparation for trial, he had tried to contact Martin. Counsel had also testified that he believed Washington had a strong alibi defense and his strategy was to focus on that rather than to try to prove that someone other than Washington murdered Hightie.
However, the trial judge granted a new trial on the ground that Martin's testimony was new evidence which, if believed, would have "had some significant impact" upon the jury. The State appealed. Washington cross-appealed, contesting the denial of relief on the petition's other nine claims. The appellate court affirmed the grant of relief as to the newly discovered evidence claim without addressing the others. 256 Ill. App. 3d 445, 628 N.E.2d 558, 195 Ill. Dec. 94.
We granted the State's petition for leave to appeal. Meanwhile, Washington, who had been released on an appeal bond, was charged with, pleaded guilty to, and was sentenced to probation for an unrelated offense. We revoked his appeal bond. Though Washington had failed to appear after the bond revocation, his counsel again filed a cross-appeal contesting the denial of relief under the petition's other claims. 134 Ill. 2d R. 318(a). The State moved to strike the cross-appeal under the fugitive dismissal doctrine (see People v. Partee, 125 Ill. 2d 24, 37, 125 Ill. Dec. 302, 530 N.E.2d 460 (1988)). We granted that motion, leaving for this appeal only consideration of Washington's newly discovered evidence claim.
The claim Washington raised is a "free-standing" claim of innocence; unlike the ineffective-assistance claim supported by Martin's testimony, the newly discovered evidence is not being used to supplement an assertion of a constitutional violation with respect to his trial. The issue is not whether the evidence at trial was insufficient to convict Washington beyond a reasonable doubt. The appellate court rejected that challenge on direct appeal. The issue is whether Washington's claim of newly discovered evidence can be raised in a petition under the Post-Conviction Hearing Act to entitle Washington to a new trial. Post-conviction relief is Washington's remaining hope for a judicial remedy, the time limitations of other avenues offering relief for such a claim having lapsed. See 735 ILCS 5/2-1202(c) (West 1992) (allowing such claims to be made in a motion for a new trial within 30 days); 735 ILCS 5/2-1401(c) (West 1992) (permitting such claims up to two years after a final judgment, the period being excused in certain limited situations, including "fraudulent[ ]" concealment of evidence). Executive clemency, of course, would remain available to Washington. Ill. Const. 1970, art. V, § 12; 730 ILCS 5/3-3-13 (West 1992).
To decide the issue, we must see if either a federal or Illinois constitutional right is implicated in such a free-standing claim of innocence, since Post-Conviction Hearing Act relief is limited to constitutional claims. 725 ILCS 5/122-1 (West 1992). Washington argues that his claim implicates due process protections. The beginning point for addressing that argument is Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), where the Supreme Court rejected the contention as a federal constitutional matter. In light of our own constitution's due process guaranty, we must also assess Washington's argument as a matter of Illinois constitutional jurisprudence. See Rollins v. Ellwood, 141 Ill. 2d 244, 275, 152 Ill. Dec. 384, 565 N.E.2d 1302 (1990).
The issue in Herrera was whether a free-standing claim of innocence following a Texas capital conviction could be raised in a habeas corpus petition in view of either the eighth amendment protection against cruel and unusual punishment or the fourteenth amendment due process clause. Herrera, 506 U.S. at 397-98, 122 L. Ed. 2d at 215, 113 S. Ct. at 859. Ten years after his conviction, Herrera claimed that his brother, who had since died, committed the crimes. The claim was supported by two affidavits. The Court said that the claim implicated neither the eighth nor the fourteenth amendment but also offered that, even if that were not the case, the claim was unpersuasive anyway. The opinion requires close study.
Looking first to the eighth amendment, the Court admitted an "elemental appeal" in the notion that the Constitution should be construed to prohibit the execution or imprisonment of the innocent. Herrera, 506 U.S. at 398, 122 L. Ed. 2d at 215, 113 S. Ct. at 859. But constitutionally, a newly discovered evidence claim had to "be evaluated in the light of the previous proceedings" in which guilt or innocence was determined. Herrera, 506 U.S. at 398, 122 L. Ed. 2d at 215, 113 S. Ct. at 859. The Court explained that once the usual constitutional safeguards for ensuring against the risk of convicting the innocent in trial proceedings were met, a conviction must mean that the person convicted is no longer "innocent" but is one "who has been convicted by due process of law." See Herrera, 506 U.S. at 398-99, 400, 122 L. Ed. 2d at 215, 216, 113 S. Ct. at 859, 860. Recognizing a free-standing claim of innocence would amount to according "additional process." Herrera, 506 U.S. at 406, 122 L. Ed. 2d at 221, 113 S. Ct. at 864.
In reality, a free-standing innocence claim could present but an error of fact in the trial outcome; it could not reflect the kind of constitutional violation for which habeas relief was designed. Herrera, 506 U.S. at 400, 122 L. Ed. 2d at 216-17, 113 S. Ct. at 860, quoting Townsend v. Sain, 372 U.S. 293, 317, 9 L. Ed. 2d 770, 788, 83 S. Ct. 745, 759 (1963). The claim was not, the Court reminded, one asserting that the evidence at trial was not sufficient to convict beyond a reasonable doubt. Herrera, 506 U.S. at 401-02, 122 L. Ed. 2d at 217-18, 113 S. Ct. at 861. And the Court pointed out how the claim was different from the showing of innocence needed to excuse a procedural bar under the "fundamental miscarriage of justice exception" of habeas jurisprudence. Herrera, 506 U.S. at 404, 122 L. Ed. 2d at 219, 113 S. Ct. at 862 (stating that the showing of innocence was merely a "gateway" to consideration of an otherwise procedurally barred constitutional claim). A claim of innocence itself simply was not, the Court concluded, cognizable under the eighth amendment. Herrera, 506 U.S. at 404-05, 122 L. Ed. 2d at 219, 113 S. Ct. at 862.
Turning to the fourteenth amendment, the Court noted, first, that procedural, not substantive, due process governed, for substantive due process analysis would require the petitioner, in fact, to be innocent. Herrera, 506 U.S. at 407 n.6, 122 L. Ed. 2d at 221 n.6, 113 S. Ct. at 864 n.6. But he was not, the Court explained. The petitioner had been convicted in an otherwise constitutionally proper trial. Therefore, the relevant question was not whether due process prohibited execution of an innocent person but whether it permitted judicial review of a free-standing claim of innocence. Herrera, 506 U.S. at 407-08, 122 L. Ed. 2d at 221, 113 S. Ct. at 864.
The Court said it did not, answering the question in consideration of the possible relief. As for commanding a new trial, the Court noted that it generally deferred to state "expertise" as to criminal process and procedure. Herrera, 506 U.S. at 407-08, 411, 122 L. Ed. 2d at 221, 223, 113 S. Ct. at 864, 866, quoting Patterson v. New York, 432 U.S. 197, 202, 53 L. Ed. 2d 281, 287, 97 S. Ct. 2319, 2322 (1977). The Court could not find it unfair that Texas precluded new evidence to be presented years after a conviction. Herrera, 506 U.S. at 411, 122 L. Ed. 2d at 223, 113 S. Ct. at 866. As for vacation of the death sentence, the Court noted that Texas, like all capital punishment states, including Illinois, have constitutional or statutory provisions for executive clemency. Herrera, 506 U.S. at 414 n.14, 122 L. Ed. 2d at 225 n.14, 113 S. Ct. at 867 n.14. Executive clemency, the Court explained, is the "fail safe" of our criminal justice system. Herrera, 506 U.S. at 415, 122 L. Ed. 2d at 226, 113 S. Ct. at 868.
In the last portion of the opinion, the Court nevertheless addressed "for the sake of argument" the petitioner's claim--rejecting it--as if it were constitutionally cognizable. Herrera, 506 U.S. at 416-19, 122 L. Ed. 2d at 227-28, 113 S. Ct. at 869-70. To do so, the Court proceeded under an assumption that "a truly persuasive demonstration of 'actual innocence'" in a capital case where there was "no state avenue open to process such a claim" would be unconstitutional. Herrera, 506 U.S. at 417, 122 L. Ed. 2d at 227, 113 S. Ct. at 869. That portion of the opinion sparked comments both in concurrence and dissent.
In her concurrence, which Justice Kennedy joined, Justice O'Connor pointed out that the analysis of the last portion of the opinion was "neither necessary" to the case "nor advisable." Herrera, 506 U.S. at 421, 122 L. Ed. 2d at 230, 113 S. Ct. at 871 (O'Connor, J., concurring, joined by Kennedy, J.). She acknowledged the "sensitive" and "troubling" issue presented, remarking that the "execution of a legally and factually innocent person would be a constitutionally intolerable event." Herrera, 506 U.S. at 419, 421, 122 L. Ed. 2d at 228, 230, 113 S. Ct. at 870, 871 (O'Connor, J., concurring, joined by Kennedy, J.). Yet, Justice O'Connor concluded, in a case where a jury found evidence sufficient to convict in an otherwise constitutionally fair trial, the "sole remedy was a pardon or clemency." Herrera, 506 U.S. at 421, 122 L. Ed. 2d at 230, 113 S. Ct. at 871 (O'Connor, J., concurring, joined by Kennedy, J.).
In his concurrence, which Justice Thomas joined, Justice Scalia pointed out that the Court had already said, in Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), though without elaboration, that habeas relief was not available for claims of actual innocence. Herrera, 506 U.S. at 428-29, 122 L. Ed. 2d at 235, 113 S. Ct. at 875 (Scalia, J., concurring, joined by Thomas, J.). Justice Scalia simply understood the first part of the Court's opinion to strengthen the statement made in Townsend. Herrera, 506 U.S. at 429, 122 L. Ed. 2d at 235, 113 S. Ct. at 875 (Scalia, J., concurring, joined by Thomas, J.).
In his dissent, which Justices Stevens and Souter joined, Justice Blackmun believed the first portion of the opinion to be dictum, not the second part Justice O'Connor identified. Herrera, 506 U.S. at 430, 122 L. Ed. 2d at 235, 113 S. Ct. at 876 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). Justice Blackmun noted that "the majority's disposition *** leaves the States uncertain of their [federal] constitutional obligations." Herrera, 506 U.S. at 439, 122 L. Ed. 2d at 242, 113 S. Ct. at 881 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). He disagreed that procedural and not substantive due process governed the fourteenth amendment analysis, the execution of an innocent person being "the ultimate '"arbitrary imposition."'" Herrera, 506 U.S. at 436-37, 122 L. Ed. 2d at 239-40, 113 S. Ct. at 878-79 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.), quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 848, 120 L. Ed. 2d 674, 696, 112 S. Ct. 2791, 2805 (1992).
On one hand Herrera underscores the unkind reality that, though the Constitution "offers unparalleled protections against convicting the innocent" ( Herrera, 506 U.S. at 420, 122 L. Ed. 2d at 229, 113 S. Ct. at 871 (O'Connor, J., concurring, joined by Kennedy, J.)), it cannot guaranty that result (see Patterson, 432 U.S. at 208, 53 L. Ed. 2d at 291, 97 S. Ct. at 2326). Then again, the last portion of the opinion suggests that the Constitution must somehow be made to do so, at least in a capital case. Herrera, 506 U.S. at 416-19, 122 L. Ed. 2d at 227-28, 113 S. Ct. at 869-70. Justice O'Connor echoed that notion, even agreeing that only a pardon or clemency could promise relief given a constitutionally fair conviction. How the Constitution might guaranty that the truly innocent are not imprisoned or executed given the greater portion of the Court's discussion in Herrera is not easily answered.
It is no criticism to read Herrera as a conflicted decision. As Justice O'Connor said, claims of innocence--even those in noncapital cases--present troubling issues. We are, of course, bound by the Supreme Court's interpretation of the United States Constitution. Conflicted or not, at least for noncapital cases, Herrera clearly states, as the Court did in Townsend v. Sain, that a free-standing claim of innocence is not cognizable as a fourteenth amendment due process claim. And ...