The death last Sunday of Rubin “Hurricane” Carter, middleweight prizefighter, heavyweight champion of the wrongfully convicted, is a vivid reminder of a plague that has long corrupted the criminal justice system — perjury by prosecution witnesses who have ulterior motives to lie.
Of all the sad aspects of the Carter case, one of the saddest was that, after the recantations by the witnesses whose testimony sent him to prison in a New Jersey triple murder he didn’t commit, the charges weren’t dropped for another 14 years. It took that long because the legal system clung to a myth that recantations are inherently unreliable.
Contrary to the myth, experience has shown that recantations often are credible, as they were in Rubin’s case and have proved to have been in at least 18 cases here in Cook County.
The best known Cook County recantation occurred in what might be called, for lack of a better name, the rape that wasn’t — the case of Gary Dotson. His accuser, Cathleen Webb, nee Crowell, was 16 when she claimed she’d been raped in 1977. Six years later, she recanted, saying she’d concocted the story out of fear that she’d been impregnated by her boyfriend and just wanted a cover story for her parents. Her fear proved unfounded, but not until police goaded her into identifying Dotson. The system rejected her recantation — until it was proven true by DNA testing in 1989.
Since the Dotson exoneration, which ushered in the DNA forensic age, 17 other Cook County defendants whose accusers recanted have been declared innocent and received either certificates of innocence from the Circuit Court or gubernatorial pardons based on innocence. Typically, however, as in the Dotson and Carter cases, the exonerations were based on evidence other than the recantations, including DNA and/or identification of the actual perpetrators.
Motives behind perjury for the prosecution vary, from a teenager’s desire to explain away a possible accidental pregnancy, to threats from police, to expectations of favorable treatment from police or prosecutors — a phenomenon that has spawned glib slogans like “Don’t go to the pen — send a friend” and “If you can’t do the time, just drop a dime.”
To infer from such dark humor that false accusers are somehow devoid of empathy would be inaccurate. Most often they appear rather to have simply succumbed to a modern form of torture that few of us could withstand. Furthermore, it appears that most truthful recantations are motivated by remorse — a desire to do the right thing — which is something public policy certainly ought to encourage, but, alas, doesn’t. The laws of some states, including Illinois, permit prosecutions for perjury based solely on the fact that contradictory statements were made under oath, without specifying which statement is alleged to have been false. These laws make it possible to prosecute recanting witnesses for perjury even if the recantation itself is truthful.
Fortunately, as embarrassing to the system as recantations may be, prosecutors traditionally have tended to exercise discretion in declining to bring such charges. For example, Cathleen Webb and the recanting witnesses in the aforementioned Cook County cases could have been prosecuted, but weren’t.
Now, however, Cook County State’s Attorney Anita Alvarez is breaking from the trend set by her predecessors. Her office is vigorously pursuing a perjury case against a recanting witness named Willie Johnson, who testified in 2011 that he lied in 1984 when he testified against two young men accused of killing two of his friends in a gang-related shooting on the South Side of Chicago.
Johnson, who was shot nine times and critically wounded in the same shooting, now claims he knew all along that the youths he was accusing — Cedric Cal and Albert Kirkman — were innocent. He knew one of the actual killers, Johnson says, but would have put himself and his family in danger if he told the truth in 1984; Cal and Kirkman were convenient scapegoats.
Seventeen years later, feeling that the danger has passed, Johnson said, he finally could tell the truth. When he told that story under oath at a hearing on petitions for post-conviction relief brought on behalf of Cal and Kirkman, however, the judge didn’t buy it — whereupon Alvarez’s office indicted Johnson for perjury.
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.
There is a sensible alternative. Prosecutors have broad discretion, and in the cases of witness recantations they should use it to decline any perjury prosecution unless they can prove beyond a reasonable doubt that the recantation — as opposed to the recanted testimony — is false.
If the office can prove Johnson’s recantation false, by all means the prosecution should go forward. If not, the charges should be dismissed and Alvarez should issue a public statement directing her staff forevermore to reject such prosecutions.
Rob Warden is executive director of the Center on Wrongful Convictions at Northwestern University School of Law. Center attorneys represent Cedric Cal, who remains in prison based solely on the now-recanted testimony of Willie Johnson.