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Time to rethink recantations

The Illinois Supreme Court building | Sun-Times Library

The Illinois Supreme Court building | Sun-Times Library

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Updated: November 8, 2013 9:49AM

Eighty-two years ago, the Illinois Supreme Court deemed witness recantations as “very unreliable” — a generalization that, although false, haunts the Illinois criminal justice system yet today, delaying justice for innocent defendants whose convictions rest on perjured testimony.

The court made its unwarranted assertion in what otherwise seems a sound opinion affirming the conviction of a man named Simon Marquis, whom a Macoupin County jury had found guilty of shooting his 20-year-old son to death. Marquis and his son were alone in the dining room of the family home when the shooting occurred on June 1, 1930. Marquis claimed that his revolver had discharged accidentally, but the jury concluded otherwise after his 15-year-old daughter testified that he emerged from the room moments after the shooting and proclaimed, “I told you I would do that someday.”

Within days of the trial, the daughter recanted. Based on her recantation, Marquis filed a motion for a new trial, which the judge denied. On appeal, the Supreme Court affirmed the conviction, holding that the recantation — coming as it did from the daughter of the family breadwinner — wasn’t credible. Rather than confining its opinion to the facts of the case, the court added, “Recanting testimony is regarded as very unreliable, and a court will usually deny a new trial based on that ground where it is not satisfied that such testimony is true.”

That was just a throw-away line — known in the legal world as dictum — because the appellate record in the Marquis case was devoid of evidence regarding the general reliability of recantations. Dictum has no precedential value even if true — which, in this instance, experience has shown it wasn’t. Nonetheless, the discredited rationale has been cited repeatedly by Illinois courts to justify denying new trials to innocent convicted defendants whose accusers have recanted.

A glaring example is the case of Gary Dotson, convicted of rape in 1979 based on the testimony of 16-year-old Cathleen Crowell, who recanted six years after the trial. When Dotson sought to have his conviction overturned, he was rebuffed both by the trial judge and the Illinois Appellate Court, citing the Marquis dictum. To the embarrassment of officialdom, however, the recantation proved true in 1989, four years after the fact, when Dotson became the first defendant in the world to be exonerated by DNA.

Since the Dotson case, recantations in 26 other Illinois cases similarly have proved true — often more belatedly than in the Dotson case, according to data from the National Registry of Exonerations. The longest delay occurred in the Ford Heights Four case, in which authorities ignored the key accuser’s recantation for 18 years — from June 1978 until DNA proved it truthful in June 1996.

The lessons of that sordid history seem to have been lost on some Illinois judges and prosecutors. Now, however, two cases pending before the Illinois Supreme Court offer an opportunity for it to correct the misimpression left by its 1931 error in the Marquis case.

The defendants in the cases, Cedric Cal and Albert Kirkman, were convicted in 1994 of the drug-related murders of two street gang members who were shot to death while standing on a street on the west side of Chicago with a fellow gang member — Willie Johnson, who was shot nine times but survived and identified Cal and Kirkman as the killers.

The convictions rested solely on Johnson’s testimony, which he recanted 15 years later, saying he’d matured and deeply regretted ruining two innocent men’s lives. He had falsely identified Cal and Kirkman, Johnson said, to protect himself and his family from reprisal by the actual killers, one of whom he knew from the neighborhood.

Citing Johnson’s recantation as new evidence of Cal and Kirkman’s innocence, lawyers from the Northwestern University School of Law Bluhm Legal Clinic and the University of Chicago Law School Exoneration Project filed petitions for new trials. The standard for granting retrials based on newly discovered evidence of innocence is whether the evidence, if it had been known before the original trial, probably would have changed its outcome.

It’s hard to imagine that Johnson’s recantation wouldn’t have resulted in the acquittal of Cal and Kirkman. Rather than confronting that issue, however, Circuit Court Judge Michael Brown harkened back to the Marquis case, telling the lawyers he viewed his job as determining “whether or not I believe Mr. Willie Johnson’s recantation.” He didn’t, thus denying the men new trials.

The Illinois Appellate Court uncritically rubber-stamped Brown’s interpretation of the law, leaving Cal and Kirkman’s fate to the Supreme Court, which could now avail itself to the opportunity to advise judges who hear future recantation cases that their role is not to determine whether a recantation is true but rather whether it undermines confidence in the original verdict.

Rob Warden is executive director of the Center on Wrongful Convictions, which is part of the Bluhm Legal Clinic at Northwestern University School of Law. Three attorneys from the Bluhm Legal Clinic represent Cedric Cal.

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