PARDON DOCKET NO.

BEFORE THE ILLINOIS PRISONER REVIEW BOARD

ADVISING THE HONORABLE PATRICK QUINN,GOVERNOR
IN THE MATTER OF WILLIE JOHNSON

PETITION OF WILLIE JOHNSON FOR EXECUTIVE CLEMENCY

Gabriel A. Fuentes
Andrew W. Vail
Justin C. Steffen
JENNER &BLOCK LLP
353 N. Clark St.
Chicago, IL 60654
Telephone: (312)222-9350
Facsimile: (312)527-0484

Counselfor Willie Johnson

I.

INTRODUCTION..............................................................................................................1

II.

FACTUAL BACKGROUND............................................................................................3

III.

REASONS FOR GRANTING CLEMENCY TO WILLIE JOHNSON.....................10

A.

WILLIE'S JANUARY 2011 RECANTION HAD

SUBSTANTIAL INDICIA OF RELIABILITY................................................11

B.

WILLIE'S PROSECUTION,AND HIS SERVING A PRISON

SENTENCE FOR PERJURY AFTER HAVING RECANTED,
WILL CHILL FUTURE TRUTHFUL RECANTATIONS.............................14

C.

WILLIE PLEADED GUILTY TO A FLAWED

INDICTMENT THAT DID NOT STATE AN OFFENSE..............................18

D.

WILLIE'S 30-MONTH PRISON SENTENCE IS AN

UNDULY HARSH AND DISPROPORTIONATE PENALTY,
FURTHER CHILLING RECANTATIONS.....................................................20

IV.

CONCLUSION ................................................................................................................21

V.

PRAYER FOR RELIEF..................................................................................................23

I.

INTRODUCTION
Willie Johnson is the only person in recent memory charged with perjury by the Cook

County State's Attorney's Office for recanting, in apost-conviction hearing, earlier sworn
testimony. Willie is a 43-year-old husband and father.l His prosecution and conviction for
perjury resulted from a unique and highly aggressive application of the Illinois perjury statute,
which permits proof of perjury by the mere presentation of two conflicting sworn statements,
without proof of which was false. 720 ILLS 5/32-2(b). Willie's prosecution stands to have a
profound chilling effect on truthful recantations by witnesses who can and will be told by law
enforcement that like Willie, they may be prosecuted for perjury and sentenced to prison simply
because they changed their story, and the law may not permit them to defend themselves by
presenting evidence ofthe truth oftheir recantation.
Willie testified at a February 1994 murder trial that two men, Albert Kirkman and Cedric
Cal, had shot him and two of his friends, who both died, in April 1992 on the West Side of
Chicago. In January 2011, after a representative of one of the convicted men tracked Willie
down out of state and persuaded him to come forward with a recantation, Willie testified under
oath that a man named Keith Ford and an accomplice had done the 1992 shooting. After a Cook
County Circuit Court judge denied the Kirkman and Cal post-conviction petition and said he did
not believe Willie's recantation, the State obtained an indictment charging Willie with perjury
each and every day from his February 1994 trial testimony to his January 2011 recantation.

Willie's personal background information, data and history are provided in greater detail in Exhibit
16,"Background of Willie Johnson," in compliance with requirements ofthe Illinois Prisoner Review
Board. Willie is asking for expedited consideration of his petition by the Governor, outside the
normal PRB review process. He was convicted very recently, on October 7, 2014, and immediately
entered IDOC custody. While his attorneys have discussed the content of the petition with him by
telephone, they have not yet had an opportunity to obtain his signed and notarized declaration. The
declaration will be submitted as soon as it is obtained.

With the indictment pending, a group of 23 former judges and prosecutors wrote to the
Cook County State's Attorney and stated that no perjury prosecution should be based only on the
fact that a recantation materially contradicts a witness's previous sworn testimony. (Ex. 1,
4/24/14 W. Wolfson Letter to A. Alvarez.)

The letter, signed by former Illinois Appellate

Court and Cook County Circuit Court Judge Warren D. Wolfson, stated that "[a] preferable
policy would be to prosecute perjury only in cases in which it can be proved beyond a reasonable
doubt that a recantation, as opposed to prior testimony, is false." (Id.)
The Cook County State's Attorney responded by letter to the 23 former judges and
prosecutors as follows:
I believe that we stand in agreement that it is appropriate to prosecute perjury only
in cases in which it can be proven beyond a reasonable doubt that a recantation, as
opposed to prior testimony, is false. I say this in spite of the fact that Illinois law
does not require such a stringent test, and appellate courts require much less in
establishing guilt in perjury prosecutions.
(Ex. 2, 6/5/14 A. Alvarez Letter to W. Wolfson.)
Then, in response to Willie's then-pending motion to dismiss the indictment or, in the
alternative, order a bill of particulars specifying that the issue to be decided in Willie's case was
the truth or falsity of his January 2011 recantation, the Cook County State's Attorney took the
following position before the Circuit Court:
The statute under which defendant is charged does not require proof of which of
the two statements is false. The opinions of the parties regarding which of the
two statements is the falsity is irrelevant to the question of Defendants' guilt on
the charge of Perjury. The veryfact that two contradictory statements were made
under oath at separate proceedings is sufficient to prove the charge ofPerjury.
Just as the People are not required to prove which of the statements are false, a
jury would not be required to determine or agree which of the statements aye
false.
(Ex. 3, People's Response to Defendants' Motion To Dismiss Indictment at 1-2)
(emphasis added)(internal citations omitted).

Willie's motion to dismiss was denied. Faced with the likely prospect that he would be
barred from offering any evidence of innocence by proving the truth of his recantation, and that
the State would not be required to prove his recantation false, Willie pleaded guilty to perjury on
October 7, 2014, in Cook County in case number 11 CR 13172, and was sentenced to 30 months
in the Illinois Department of Corrections. He entered custody immediately on October 7, 2014.
Pursuant to 730 ILCS 5/3-3-13 and the guidelines set forth by the Illinois Prisoner
Review Board, Willie now respectfully requests executive clemency, that is, a pardon for and
expungement of his conviction, and, in the alternative, the commutation of his prison sentence so
that he may be released immediately. He has not previously petitioned for clemency. Given the
extraordinary circumstances of this unique and unfair application of the perjury statute in a way
even the Cook County State's Attorney publicly disclaimed, Willie should not spend another day
in prison. Every day he spends in prison does harm not only to him, but to the ability of all
potentially recanting witnesses to come forward and speak the truth in cases in which justice
requires that the truth be told. Under all of these circumstances, Willie respectfully requests that
the Governor grant him executive clemency forthwith, without the ordinary time for review and
consideration by the Illinois Prisoner Review Board, as is within the Governor's authority under
Madigan v. Snyder, 208 I11. Zd 457(2004).

II.

FACTUAL BACKGROUND
Until entering Illinois Department of Corrections custody on October 7, 2014, Willie was

living as a stay-at-home father with his wife, Chiffon, raising their 3-year-old twins, Jayden and
Jessica, in Dallas, Texas. The events that eventually led to his plea of guilty to perjury began
some 22 years earlier, on the West Side of Chicago on April 21, 1992, when he sustained nine
gunshot wounds and his two friends were killed.
3

On that day in April 1992, Willie was with his two friends, Cedric Herron and Sammy
Walker, during a fight at the West Side home of a man named Keith Ford. (Ex. 4, I11. App. Ct.
Kirkman/Cal June 17, 2013 Opinion at 3.) Willie testified at the 1994 trial of Kirkman and Cal
that Ford had directed Kirkman and Cal to attack him. (Id.) Later that night, according to
Willie's 1994 testimony, he was talking to Herron and Walker outside his home when two men
approached and shot at them, killing Walker and Herron, and wounding Willie nine times. (Id.)
Willie testified at the trial that Cal and Kirkman were the shooters, and that he had told the police
they were the shooters. (Id.)
Also testifying at the 1994 trial was Willie's then-girlfriend, Latrese Buford, who said
that earlier in the day, she had seen an altercation between Herron and Ford over a drug sale, and
that Ford was driving one of two Astro vans which had carried

group of men who initiated a

fight with one of Herron's drug dealers. (Id.) Buford also testified that after the fight, Ford
approached Willie and told him that being around Herron could be dangerous because Herron
was selling drugs on Ford's turf. (Id.). Later that night, Buford was inside a home near the
shooting when she heard shots. (Id.). Later, at the 2011 hearing on post-conviction petitions by
Kirkman and Cal, Buford testified further that as she had told the police at the time, she had seen
an Astro van parked in an alley at the scene ofthe shooting and that she recognized the van. (Ex.
5, 4/20/11 L. Buford Post-Conviction Testimony at 30-31, 68.) The judge presiding over the
post-conviction hearing did not permit her to testify to her understanding of whose van it was
(Ford's), ruling that such testimony would be "speculative" or "irrelevant." (Id. at 31, 69-71.)
At the 1994 trial of Kirkman and Cal, another witness, John Sylvester, testified that in the
summer of 1992, Sylvester asked Willie whether Kirkman and Cal had actually done the
shooting "and he said no .... he knew that they didn't do it." (Ex. 6, J. Sylvester February 1994

Trial Testimony at 40, 42.) Further, at the Kirkman and Cal post-conviction hearing, Buford
testified that a few months after Willie was released from the hospital in 1992, he told her that he
had a "plan" to "deal with" those who had shot his friends to death "because I know where they
play ball." (Ex. 5, 4/20/11 L. Buford Post-Conviction Testimony at 49-50.) Of course, it is
undisputed that Kirkman and Cal were in custody at that time and could not have been the
persons Willie told Buford he planned to "deal with" at a location where he knew they "play[ed]
ball."
Kirkman and Cal were convicted at the 1994 trial, and 15 years passed. In or about
2008, Willie moved to Monroe, Louisiana, where he and Chiffon were involved in a 2008 car
accident that left Willie disabled.
Meanwhile, an investigator for Kirkman began looking for Willie. The process of
finding Willie took the investigator, Elliot Slosar, about six months and began with two trips
Willie's sister in Green Bay, Wisconsin. (Ex. 7, E. Slosar Affid. at 2.) On the second trip,
Willie's sister was able to initiate a phone conversation between Willie and Slosar, but Willie
was hostile to Slosar in these conversations and wanted nothing to do with Slosar's questions
about the Kirkman and Cal case. (Id. at 2.) Willie remained hostile to the idea of discussing the
Kirkman and Cal case during further conversations, at Slosar's instance, between Willie and his
sister. (Id. at 2.)

After the investigator himself initiated a phone call to an imprisoned Chicago

gang member, Willie signed an affidavit recanting his 1994 trial testimony. (Id at 3.) The call
with the gang member later was held against Willie under a claim by the State that his
recantation was influenced by the gang, but that claim was unsupported, and Slosar's affidavit
flatly refutes it.

~~

On January 19, 2011, he testified at the post-conviction hearing of Kirkman and Cal,
recanting his 1994 trial testimony and implicating Keith Ford. (Ex 8, W. Johnson 2011
Testimony.) Ford was the person whom Latrese Buford had seen driving an Astro van similar to
the one she saw at the crime scene immediately after the shooting, and Ford was the person she
had said she heard warning Willie that being around Herron was dangerous because Ford was in
a dispute with Herron over drug-selling turf. The judge, after limiting Buford's testimony about
her identification of the Astro van at the scene of the shooting as Ford's, and after hearing
Willie's testimony, denied the post-conviction petitions of Kirkman and Cal. (Ex. 9, PostConviction Ruling.)
The trial judge based his ruling heavily on his conclusion that Willie's post-conviction
testimony was not plausible. The trial judge mentioned that multiple gunshots had been fired,
suggesting to the court that Willie's recollection of a single shooter was not plausible. (Ex. 9,
Post-Conviction Ruling at 4.) The judge disbelieved Willie's testimony that his family received
telephone threats when he was at the hospital emergency room in 1992, although the court added
that "I haven't heard any evidence other than what Mr. Johnson testified to concerning that."(Id.
at 4-5). The judge further found that Willie's stated reasons for implicating Kirkman and Cal in
1994 had shifted, and that Willie recanted after having a telephone conversation with a gang
leader named Ray Longstreet, who gave him the "green light to do the right thing." (Id. at 6-7.)
Without hearing any other evidence concerning this Longstreet phone call, the judge concluded
that Willie had testified out of gang loyalties and further found his recantation "not credible."
(Id. at 7-9.)
Willie was not on trial for perjury in the post-conviction hearing for Kirkman and Cal,
was not represented by counsel, and had no opportunity to present his own evidence directed at

the truthfulness of his 2011 recantation.

That evidence included Slosar's full account of the

circumstances of the Longstreet phone call, which was initiated not by Willie, but by Slosar.
(Ex. 7, E. Slosar Affid.) Slosar affirms that Willie initially reacted with hostility to the Slosar's
efforts to talk with Willie about the Kirkman and Cal case, that neither Slosar nor Longstreet
attempted to tell Willie what to say, and that Longstreet simply told Willie he need not fear
retaliation for coming forward. (Id.) Slosar's narrative is being told here for the first time and
was never presented to the Circuit or Appellate Courts in the Kirkman and Cal post-conviction
matter. Slosar's account would have been presented to Willie's jury, had it been permitted to
hear evidence of the truthfulness of Willie's recantation. The investigative narrative is a firsthand account refuting the State's claims, and the Kirkman and Cal post-conviction judge's
findings, that Willie came forward out of gang loyalties. He did not.
After the Circuit Court denied the Kirkman and Cal petitions and pronounced Willie's
testimony not credible, the State's Attorney of Cook County proceeded to obtain a grand jury
indictment charging Willie with perjury under an Illinois statute that allows perjury to be proved
by an offer of two contradictory, sworn statements; unlike the federal perjury statute, the Illinois
law allows proof by two contradictory sworn statements without regard to the age of the
statements or whether both fell within the statute's limitations period. Compare 720 ILLS 5/322(b) (stating that a perjury indictment based on two contradictory statements need not specify
which statement is false) with 18 U.S.C. 1623(c) (providing that federal perjury indictment
based on two contradictory sworn statements need not specify which is false

if each statement

was made during the limitations period). In an apparent effort to avoid dismissal on limitations
grounds, the Cook County State's Attorney's Office obtained an indictment alleging that Willie
committed perjury on a "continuing" basis during each and every day of a 17-year-period from

February 8, 1994 (far outside perjury's three-year limitations period) to January 19, 2011. (Ex.
10, W. Johnson Motion to Dismiss Indictment.)
After Willie moved to dismiss the indictment on limitations grounds, the Cook County
State's Attorney's Office told the Circuit Court that it need not be concerned about the
limitations problem because the prosecution would prove only the falsity of Willie's January
2011 recantation, as this was the only testimony at issue in the case. (Ex. 11, 11/7/2012 Tr. at 7.)
The Assistant State's Attorney told the Court:
Counsel's argument is that the perjured statement is from 1994 when in fact that's
not what we're alleging. It's the statement that the defendant made in the postconviction matter in January of 2011, and we're within the statute of limitations
with respect to that. That is the allegation that is before the fact finder. The prior
testimony is simply evidence that will be used with respect to the fact finder
making that determination as to whether this defendant committed perjury in
2011.
(Id.) Willie's motion was denied.
In April 2014, 23 former judges and prosecutors wrote to the State's Attorney about
Willie's prosecution and expressed their concern that perjury prosecutions based simply on
recantations of contradictory earlier sworn testimony would discourage truthful recantations, and
that perjury charges should be brought in recantations only where the State could prove the
falsity of the recantation. (Ex. 1, W. Wolfson 4/24/14 Letter to A. Alvarez.)

The State's

Attorney of Cook County responded in a letter, consistent with her assistant's representation to
the Circuit Court in November 2012, that the former judges and prosecutors need not be
concerned about whether the prosecution would discourage truthful recantations because the
State's Attorney would prosecute recantations only in cases in which it could prove the falsity of
the recantation. (Ex. 2, 6/5/14 A. Alvarez Letter to W. Wolfson.) The letter, which contained a
reference line identifying it as having been sent in Willie's criminal perjury case then pending in
the Circuit Court, stated:
8

[i]t is appropriate to prosecute perjury only in cases in which it can be proven

beyond a reasonable doubt that a recantation, as opposed to prior testimony, is
false. I say this in spite of the fact that Illinois law does not require such a
stringent test, and appellate courts require much less in establishing guilt in
perjury prosecutions ....[n]o perjury prosecution involving a recantation should
ever move forward without the evidence and ability to prove that the recantation
is perjured.

At the time of the State's Attorney's letter, Willie had moved to dismiss the indictment
for having wrongly alleged perjury as a continuing offense. The motion also sought a bill of
particulars confirming that, as the State had represented to the Court in November 2012, the
State would need to prove the falsity of Willie's January 2011 recantation. (Ex. 10, W. Johnson
Motion To Dismiss Indictment.) Notwithstanding the State's November 2012 representation to
the Circuit Court("whether this defendant committed perjury in 2011" was "the allegation that is
before the fact finder"), and notwithstanding the State's Attorney's statement to the 23 former
judges and prosecutors (that she was "in agreement" with them that perjury prosecutions in
recantation cases should be brought only where "it can be proven beyond a reasonable doubt that
the recantation, as opposed to prior testimony, is false"), the State told the Circuit Court in July
2014 that it would not prove the falsity of Willie's recantation, that it need not do so, and that the
truth or falsity of the recantation was an issue that should never reach Willie's jury. (Ex. 3,
People's Response to Defendants' Motion to Dismiss Indictment at 1-Z.) The State told the
Court:
The statute under which defendant is charged does not require proof of which of
the two statements is false. 720 ILLS 5/32-2(b). The opinions of the parties
regarding which of the statements is the falsity is irrelevant to the question of
Defendant's guilt on the charge of Perjury. The very fact that two contradictory
statements were made under oath at separate proceedings is sufficient to prove the
charge of Perjury. 720 ILCS 5/32-2(b). Just as The People are not required to
prove which ofthe statements are false, a jury would not be required to determine
or agree which ofthe statements are false.
D

Ala.
Shortly after the Court denied Willie's motion to dismiss and request for a bill of
particulars, Willie pleaded guilty to the indictment on October 7, 2014.

III.

REASONS FOR GRANTING CLEMENCY TO WILLIE JOHNSON

Willie Johnson was prepared to present substantial evidence of the truth of his January

2011 recantation in order to establish his innocence to the charge of perjury. Instead, he pleaded
guilty when confronted with the probability that the truth of his 2011 recantation would be
considered irrelevant and inadmissible. Willie's prosecution is said to be the only perjury
prosecution brought in Cook County in a "recantation" case in at least the past four years. (Ex.
12, Frank Main, Alvarez: I won't prosecute every witness suspected of lying, Chi, Sun-Times,
June 3, 2014 at 2.) Ultimately, Willie's guilt or innocence at his trial would have turned only on
whether the prosecutor could present evidence of two conflicting sworn statements, and not on
whether either was true or false. The State proceeded under this theory even though it had stated
in open court that it would not, and even though the State's Attorney herself wrote to the 23
former judges and prosecutors in a way strongly suggesting that she would not exercise her
discretion, in recantation cases, in a way that availed itself of the Illinois perjury statute's
"stringent" provision allowing perjury prosecutions to be based on two conflicting statements.
After the State's Attorney said she would proceed only with proof that a recantation was false,
the State did not follow its own prescription in Willie's case and argued successfully in the
Circuit Court that truth or falsity of the statements was "irrelevant" and would never be decided
by the jury. The result was Willie's guilty plea.. As stated forcefully by the 23 former judges
and prosecutors in an amicus curiae brief filed in the Circuit Court, Willie's prosecution will
discourage truthful as well as untruthful recantations.
10

Willie's conviction and 30-month prison sentence thus yield a result that is abhorrent to
justice and that calls out for the exercise ofthe Governor's power of executive clemency. Willie
is asking that this power be exercised forthwith, and without the usual time associated with
consideration by the Illinois Prisoner Review Board. Every day of Willie's incarceration
undermines justice by sending a signal to all potential recanting witnesses that simply by
changing their story, they will be prosecuted and jailed with no regard under Illinois law for the
truthfulness of their recantation, and no guarantee of an opportunity to prove their innocence by
presenting evidence that they recanted truthfully.
A.

WILLIE'S JANUARY 2011 RECANTION HAD SUBSTANTIAL INDICIA

OF RELIABILITY.

The innocence case which Illinois law precluded Willie from presenting would have been
based on his own testimony that he told the truth in January 2011 at the Kirkman and Cal postconviction hearing when he said he identified Kirkman and Cal as the shooters, and did not
identify Ford, out of a fear of Ford and out of a misguided desire to exact revenge himself on
Ford. Willie's testimony is backed by at least two prior and admissible consistent statements (to
Buford and Sylvester in or about 1992) that the men in custody for the shooting were not the
shooters. It also is backed by Buford's sighting of an Astro van, resembling one Ford had been
seen driving that day, at the scene ofthe shooting moments after the shooting happened.
None of the responses the State has offered, in its multiple opportunities to do so in the
perjury prosecution of Willie, should give the Governor any pause in granting Willie clemency.
(See Ex. 12, Chi, Sun-Times Article; Ex. 2, 6/5/14 A. Alvarez Letter to W. Wolfson; Ex. 13,

People's Response to the Motion for Leave to File an Amicus Brief in Support of Defendant's

11

Motion to Dismiss.)2 First, the State has repeatedly raised the red herring of gang influence on
Willie's recantation by pointing out that Willie, in his sworn recantation, admitted having a
phone conversation with an incarcerated gang leader named Ray Longstreet. But Willie wanted
to have nothing to do with the Kirkman and Cal case when the Kirkman investigator found him
living out of state in 2008. (Ex. 7, E. Slosar Affid. at 2.) The investigator swears today that he
initiated the Longstreet call, which lasted about one minute, and in which no one told Willie
whom he should or should not identify. (Id at 2,3.) The investigator swears today that the
purpose of the call was simply to allay Willie's fears of retaliation so that he would come
forward at all with truthful testimony that Kirkman and Cal were not the shooters. (Id. at 3.)
Second, the Circuit Court's denial of the Kirkman and Cal post-conviction petition based
on Willie's testimony being "not credible" came not after a trial of any perjury charge against
Willie, who had no counsel at the proceeding and no opportunity himself to argue that his
recantation was in fact truthful. The Circuit Court barred Buford from testifying that the Astro
van she had seen at the crime scene resembled the one she had seen Ford driving that day. The
Circuit Court did not hear the prior sworn testimony of Sylvester. No evidence was presented
from the Kirkman investigator about the full circumstances of the phone call with the
incarcerated gang member, or about how the investigator, and not Willie, had initiated that call.
No evidence was offered to explain how a heavily medicated Willie might have been mistaken
about having received threatening phone calls while lying in the emergency room 19 years

Willie has attached these documents hereto as exhibits and has responded to them here to provide a
means by which the Governor may give the State's arguments a full and fair review in advance of
further briefing. The State has availed itself of multiple opportunities, as attached hereto, to state on
the record and in public its belief that Willie committed perjury and that his January 2011 recantation
was false but this Petition represents Willie's first opportunity to argue his case for innocence based
on the truth of his recantation.

12

earlier suffering from nine gunshot wounds, or about how the calls might have been directed to
his family at another location, even elsewhere in the hospital. None of those avenues was
explored, and the Circuit Court and Appellate Court did not have the benefit of any of that
evidence or argument. Accordingly, the Circuit Court and Appellate Court decisions in the
Kirkman and Cal matter have no bearing whatsoever on Willie's guilt or innocence in his perjury
case. In fact, the opinions of other judges based on the incomplete record presented in the postconviction hearing most certainly would have been inadmissible in a perjury trial of Willie, and
Willie's jury would never have been allowed to hear them.
Third, it is important to remember that Willie, even in his guilty plea, has never admitted
that he lied when he recanted in January 2011. Rather, Willie pleaded guilty to a perjury
indictment that charged him with having perjured himself continuously over a 17-year-period
based on two contradictory sworn statements 17 years apart. The indictment failed to charge
Willie with the specific act of committing perjury in his January 2011 recantation, and as
explained further below, the State took shifting positions as to what it would prove but settled on
the position that it need not prove either statement false. For reasons stated below in Part III(C),
Willie pleaded guilty to a form of perjury that cannot legally be considered an offense under
Illinois law. But for purposes of considering the impact of his guilty plea on this clemency
petition, the flawed form of the indictment means that as a technical matter, Willie never
expressly admitted perjuring himself in January 2011. His admission to having made two
contradictory statements means no more than that the statements were contradictory, so one of
them must be false. He maintains that his 1994 trial testimony too old itself to be prosecuted
for perjury was false. His guilty plea to perjury ought not to be held against him on the instant
clemency petition because the most critical of the two statements has always been his January

13

2011 recantation and the claim by the State, in its public statements and response to the amici,
that in January 2011, Willie was falsely attempting to exonerate two convicted murderers.
Finally, notwithstanding the substantial evidence supporting the truthfulness of Willie's
recantation and the absence of a true admission by him that it was false, the real issue now before
the Governor in this clemency petition goes far beyond the guilt or innocence of Willie Johnson.
The issue before the Governor is how truthful recantations will be discouraged by this
prosecution and the manner in which it was brought, in direct contravention of the line
prosecutor's promise to the defense and the Court in November 2012 and of the State's
Attorney's view in June 2014 that recantation perjury cases should never be brought in the
absence of proof ofthe falsity of the recantation.3 As explained below, Willie's prosecution will
have a palpably chilling effect on the willingness of witnesses to give truthful recantations in the
future.
B.

WILLIE'S PROSECUTION,AND HIS SERVING A PRISON SENTENCE

FOR PERJURY AFTER HAVING RECANTED,WILL CHILL FUTURE
TRUTHFUL RECANTATIONS.

Willie's prosecution is certain to chill future truthful recantations. Two groups of amici
saw Willie's indictment as having such a chilling effect: (1) a group of 23 former prosecutors
and judges including former U.S. Attorneys James R. Thompson and Dan K. Webb; former

The analysis is not changed were the State's Attorney to contend that in her letter to the 23 former
judges and prosecutors, she never committed to presenting proof at trial of the recantation's falsity.
In other words, an interpretation of the State's Attorney's June 2014 letter to the effect that she
believed recantation perjury cases to be appropriate only where she herself is persuaded of the
recantation's falsity would be a hollow promise inconsistent with the spirit of her stated "agreement"
with the 23 former judges and prosecutors. In Willie's perjury case, the State's Attorney stood on the
law that perjury could be proved through two conflicting statements. A defendant barred from
putting the State to its proof of its professed belief in the falsity ofthe recantation is in the same shoes
as a defendant prosecuted based only on two materially conflicting sworn statements. Willie's
prosecution therefore was brought in precisely the way the State's Attorney strongly intimated she
would never proceed.
14

Associate U.S. Attorney General John R. Schmidt; former judges George N. Leighton, Kenneth
L. Gillis, Dom J. Rizzi, Nan Nolan, Warren D. Wolfson, and Julian Frazin; former Illinois
Attorney General Tyrone C. Fahner; former assistant U.S. attorneys Ronald S. Safer, Andrea L.
Zopp (also a former First Assistant Cook County State's Attorney), Jeffrey H. Cramer, Jeremy
D. Margolis, Lori E. Lightfoot, and Stuart J. Chanen; and former Cook County assistant state's
attorneys Jeffrey Singer, Don J. Mizerk; Jorge Montes, and Mary Brigid Hayes (also a former
Assistant Illinois Attorney General); and (2) a group of 12 exonerated Illinois defendants whose
wrongful criminal convictions were based in whole or in part on witness testimony later
recanted. (Ex. 14, Amicus Curiae Brief.) The amici stated:
[T]he prosecution of Mr. Johnson for perjury will discourage other witnesses from
recanting false statements and/or identifications. The criminal justice system
should send a message that the goal of all judicial proceedings is to encourage
truth-telling, not punish it ....The history of the last 30 years strongly suggests
that many recantations are truthful, and such recantations are among the primary
reasons that so many wrongful convictions ...have recently come to light. "[T]o
discourage recantation that might be true by pressing perjury charges too
aggressively that turns the truth-finding mission ofthe courts upside down."
(Ex. 14, Amicus Curiae Brief at 10, quoting Editorial, Law Shouldn't Discourage the
Truth, Chi, Sun-Times, May 6, 2014, at 61.)
Willie's prosecution represents an especially acute example of a perjury prosecution that
will discourage truthful recantations. Willie's case demonstrated how easily a recanting witness
may be charged and convicted of perjury. The mere existence oftwo conflicting pieces of sworn
testimony is all that is required by the Illinois perjury statute. Accordingly, every witness who
gives a sworn recantation of earlier sworn testimony will have created a record upon which a
perjury indictment may be obtained. Then, at trial, even in prosecutions in which the State
publicly claims that the recantation was false, and in which the State asserts that justice requires
prosecution of a false recantation, the State will not have to prove the falsity of the recantation.
This is precisely what happened in Willie's case. Willie's prosecution sends a strong signal to
15

every potential recanting witness: If the prosecutor does not believe the recantation, or if a judge
does not believe it, the witness will be subject to a felony perjury prosecution in which proving
the truth of the recantation will not be an option. The mere existence of the two conflicting
statements no matter that the recanted testimony occurred years outside the limitations period
for perjury prosecutions is enough to secure a conviction.
A law enforcement agent or official may point to Willie's case as an example of how
easily a perjury charge may be lodged and proved against a recanting witness. Willie's case also
demonstrated how law enforcement officials are unafraid to threaten recanting witnesses with
perjury. Before Willie testified at the Kirkman and Cal post-conviction hearing, a prosecutor and
a State's Attorney's Office investigator traveled to Louisiana to interview him, and during the
interview, the prosecutor told him he would be prosecuted for perjury if he persisted in his
recantation. (Ex. 15, Willie Johnson Affid.) Willie had everything to lose and nothing to gain
by recanting, but he recanted anyway. Now that Willie was successfully prosecuted for perjury,
his case will be used by law enforcement to show that a perjury prosecution is not just an idle
threat, but a reality for recanting witnesses in Illinois when law enforcement disbelieves the
recantation. The risk that law enforcement will disbelieve the recantation and seek a perjury
indictment, and that the recanting witness will then be unable to point to the truthfulness of the
recantation, will be too great a risk for many recanting witnesses.

Counsel for any potential

recanting witness would likely advise the witness that the recanting, under oath, of any previous
sworn testimony brings substantial exposure to a felony perjury charge and a possible term of
imprisonment. Willie's sentence was 30 months in prison. He sits in an Illinois prison in East
Moline at this very moment because he recanted.

~[~

The State's response to the argument of the amici was to state that Willie's prosecution
will not chill truthful recantations because (1) Willie's recantation was false, according to the
State, and (2) the State will prosecute perjury only where it can prove the falsity of the
recantation. (Ex. 1, 4/24/14 A. Alvarez Letter to W. Wolfson.) First, Willie's recantation had
substantial indicia of reliability and was never proved false. (See Part I(A), supra.) Second, the
reason why the truth of Willie's statement was never tested in his perjury case was that the Cook
County State's Attorney's Office simply declined to do so. In what the State described as the
only recent case in which the State has prosecuted arecantation-related perjury, at least in Cook
County, it argued that the truth or falsity of the recantation was irrelevant and would never be
decided by a jury. (Ex. 3, People's Response to Defendant's Motion to Dismiss Indictment.)
The Circuit Court agreed. Accordingly, the State's argument about why Willie's prosecution
will not have a chilling effect on truthful recantations is entitled to zero weight. Willie's
prosecution, and the circumstances leading to his guilty plea after the court accepted the State's
position that the truth of his recantation was irrelevant, pave a path toward chilling all
recantations. The State blazed this path itself by prosecuting Willie based on the two conflicting
statements and without committing to prove the latter statement false, or to allow Willie to
defend the indictment based on the latter statement's truth.
Willie's prosecution represents the ill effect that the Cook County State's Attorney
publicly stated she would avoid by not availing herself of the "stringent" interpretation of the
Illinois perjury statute but instead proceeding where a recantation's falsity can be proved. (See
Ex. 2, 4/24/14 A. Alvarez Letter to W. Wolfson.) The State's Attorney's ultimately hollow
promise to rely on proof of the falsity of a recantation forms perhaps the most powerful evidence
in favor of executive clemency. The prosecutor herself admitted that to avoid the chilling effect

17

of recantation perjury cases, such cases would need to be brought in a manner entirely different
from the way in which Willie's perjury case was prosecuted. Executive clemency represents an
alternative and now necessary means to the end mapped out by the State's Attorney.
C.

WILLIE PLEADED GUILTY TO A FLAWED INDICTMENT THAT DID

NOT STATE AN OFFENSE.

As is detailed more fully in Willie's motion to dismiss the indictment in this matter, the
State improperly charged him with an act of perjury that purportedly continued every day over a
14-year period from the February 1994 Kirkman and Cal murder trial to his January 2011
recantation. (Ex. 10, W. Johnson Motion to Dismiss Indictment.) Willie ultimately pleaded
guilty to an indictment that did not charge him with a cognizable offense under Illinois law.
This flaw in the indictment highlighted the need for the State, as a matter of policy, to do what it
ultimately declined to do: Charge and prove the falsity of Willie's January 2011 recantation.
Willie's case is notable not only as the only recent matter in which the State charged
perjury for a recantation, but also as the only case to Willie's knowledge in which the State
has sought to prove its perjury case by two conflicting statements when one ofthose statements
the February 1994 trial testimony implicating Kirkman and Cal is outside the three-year
limitations period. The State has never quarreled with that testimony and said in open court in
November 2012 that it planned to prove only the falsity of the January 2011 recantation (Ex. 11,
11/7/2012 Tr. at 7), but in reality, the Illinois perjury statute did not require the State to allege
which was true or false, and the indictment did not do so. (See 720 ILLS 5/32-2(b); Ex. 10, W.
Johnson Motion to Dismiss Indictment, Ex. A.)
The indictment did something else, and it was something very strange. In apparent
anticipation of the potential limitations problem with the elements of the offense including the
1994, out-of-time trial testimony, the State charged that Willie committed perjury as a continuing
18

from February 1994 through the date of his January 2011 recantation. (Id.) The
indictment's allegation that Willie was committing perjury every day for 17 years, or that he
could have been under oath every day for 17 years, is absurd on its face, particularly when the
State is invested so heavily in the truth of the February 1994 trial testimony. Why not simply
charge that the perjury occurred in January 2011? The answer may be that the State was simply
confused about how precisely to charge a perjury case based on two conflicting statements. Or,
perhaps the State wanted to leave open the possibility, which it ultimately pursued, of relying on
the perjury statute's provision that the State need not prove the falsity of either statement, but
need only prove that two conflicting statements were made. When Willie moved to dismiss the
indictment on limitations grounds because one of the statements was too old to be prosecuted,
the Circuit Court denied the motion in November 2012 by finding that "the last act required" by
the offense as charged was the January 2011 testimony. (Ex. 11, 11/7/2012 Tr. at 7.)
Consequently, Willie's case is an illustration of the bizarre result that can and did occur
under the Illinois perjury statute, which lacks the federal perjury statute's safeguard of allowing
proof through two conflicting statements only if both were made within the limitations period.
18 U.S.C. 1623(c). To minimize the chances of dismissal on limitations grounds, the State
charged perjury as a continuing offense when perjury was not and could never be a continuing
offense under the law. The Illinois perjury statute might work well when both of the conflicting
statements fall within the limitations period, but when one ofthem does not, only the more recent
of the two statements ought to be charged as perjury. The State's line prosecutor apparently
understood this truism in November 2012, but the drafters of the indictment did not charge
Willie with perjuring himself only in January 2011.

LLB

The indictment's reliance on both

statements where one fell long outside the limitations period made Willie's prosecution uniquely
aggressive.
Cases such as Willie's, in which the State charges perjury based on a recantation it claims
to be false and with the intent to rely on Section 32-2(b)to prevail based only on proof ofthe two
conflicting sworn statements, are a poor fit for Section 32-2(b) and make a strong case for the
exercise of prosecutorial discretion and now clemency where the prosecutor failed to exercise
that discretion. The State's Attorney appeared to recognize how ill-suited recantation perjury
cases are to Section 32-2(b) when she told the 23 former judges and prosecutors that she would
only bring a recantation perjury case in which she could prove the recantation (by definition the
latter ofthe two statements) false. The Governor should complete the State's Attorney's thought
by granting clemency here.
D.

WILLIE'S 30-MONTH PRISON SENTENCE IS AN UNDULY HARSH

AND DISPROPORTIONATE PENALTY,FURTHER CHILLING
RECANTATIONS.

Probation would have been an appropriate disposition for this offense, given that Willie
had left behind his earlier gang and criminal lifestyle and is now a disabled father of two young
children, living alaw-abiding life in the Dallas, Texas area. His previous criminal conviction for
armed robbery and attempted murder, oft-cited by the State, occurred in 1995 and resulted in an
18-year prison sentence from which he was released in 2003; his drug convictions (two matters
for which he received one year and four years in 1989, and two 1990 matters for which he
received a year each) occurred even earlier. (Ex. 16, Background of Willie Johnson.) There is
zero evidence that Willie, as the person he is today, represents a threat to harm anyone.
The 30-month sentence is not only unduly harsh in Willie's case, but also
disproportionate in comparison to the results of other perjury cases. In other cases, sworn law
enforcement officials who perjured themselves despite their legal obligation to uphold the law

were sentenced far less harshly. Sylshina London, a Chicago police officer who was convicted
at trial on a charge that she perjuriously accused a mourner in a funeral procession of throwing a
bottle at her car, received a sentence of only four-and-a-half months. (People v. London, No. 12
CR 2018601 (Cook County); see also Ex. 17, Mark Suppelsa, WGN Investigates: An officer's lie
and the boss who backed her up, Oct. 6, 2014, wgntv.com.) Pamela Bruce, a Cook County
sheriffs deputy, also went to trial on a perjury charge, which related to her having lied about her
role in the beating of a Cook County jail inmate, and she received probation. (People v. Bruce,
No. 13 CR 04921 O l (Cook County); Ex. 18, Steve Schmadeke,Ex-Cookjail guard avoids prison
time for mentally ill inmate's beating, Chi. Tribune, November 18, 2014, at l.) In other noted
instances of perjury by law enforcement officers, no prosecution at all was brought. (Ex. 14,
Amicus Curiae Brief at 9.)
By contrast, Willie Johnson, a disabled father oftwo young children and not a sworn law
enforcement officer, and who did not go to trial but pleaded guilty, received 30 months in state
prison. The severity of Willie's sentence only adds to his prosecution's chilling effect on truthful
recantations. The unnecessarily harsh and disproportionate nature of his 30-month sentence adds
yet another ground for executive clemency at minimum, his sentence should be commuted to
no prison time so he may be released immediately.

I~i~~K~~[~Ily[~]~I
The perjury prosecution of Willie Johnson creates an unacceptable risk of discouraging
future recantations of false testimony or identifications in criminal cases. The 23 former
prosecutors and judges who filed an amicus brief in this case were correct, and the Cook County
State's Attorney underscored the point of the 23 former judges and prosecutors when she said
she would not bring a recantation perjury case without being able to prove the falsity of the
21

recantation, only to bring the single recantation perjury case her office can remember by
asserting that the recantation's truth or falsity was "irrelevant" and not a matter to be considered
by Willie's jury.

Willie's perjury prosecution, and his unduly harsh and disproportionate 30-

month prison sentence, are a paradigm for the concerns about chilling of truthful recantations.
Future witnesses prepared to recant can be told correctly that they will be cannon fodder for
perjury prosecutions just as Willie was. Willie should receive executive clemency immediately,
notwithstanding the arguments that the State's Attorney has made publicly and repeatedly as to
his guilt, as attached hereto.
The State's most trenchant argument, to the 23 former judges and prosecutors, was that
Willie's prosecution would not chill truthful recantations because no such perjury case should
ever be brought in the absence of proof, beyond a reasonable doubt, of the recantation's falsity.
But in the end, the State was unwilling to apply its prescription to the only recantation perjury
case it was prosecuting. Willie's perjury prosecution became a prime example of how recanting
witnesses so easily can and will be charged with perjury when the prosecutor does not believe
the recantation. Now that recanting witnesses will see from Willie's prosecution that they are
provably guilty of perjury from the moment they recant, without the ability to demonstrate the
truthfulness of their recantations, executive clemency is appropriate and should be granted to
Willie forthwith.

22

V.

PRAYER FOR RELIEF

For the foregoing reasons, we respectfully request that the Governor pardon Willie

Johnson and expunge his October 7, 2014 conviction for perjury. In the alternative, we
respectfully request that his 30-month prison sentence be commuted to no term of incarceration,
resulting in his immediate release.

Dated: December 3, 2014

Respectfully submitted,

WILLIE JOHNSON
~~

By:

~~
One of His Attorneys

Gabriel A. Fuentes
Andrew W. Vail
Justin C. Steffen
JENNER &BLOCK LLP
353 N. Clark St.
Chicago, IL 60654
Telephone: (312)222-9350
Facsimile: (312)527-0484

23

DECLARATION

I, Willie Johnson, declare under penalty of perjury that all ofthe assertions made in this
petition are complete, truthful, and accurate.

Willie Johnson
Subscribed and sworn to before me
,2014.
this
day of

Notary Public

CERTIFICATE OF SERVICE
I, Gabriel A. Fuentes, an attorney, hereby certify that a true and correct copy of the
3rd
Petition of Willie Johnson for Executive Clemency was served by UPS overnight mail this
Day of December upon each of the following:
Hon. Judge Dennis Porter
Circuit Court of Cook County, Illinois
Criminal Court Division
2600 South California Avenue, Room 606
Chicago IL 60608
Hon. Anita Alvarez
State's Attorney of Cook County
69 W. Washington, Suite 3200
Chicago IL 60602
~'
Cam.
Gabriel A. Fuentes

Subscribed and sworn to before me

this .1~~a~ day of ~,c.r~,~,I+~.,r , 2014.
~-~~
N~o, ary Public
~!

OFFICIAL SEAL
JANYCE Y, V1flE~STER

NOTARY PUBIiC, STATE 0~ ILLiN~~S

MY COMMISSION EXPIRES 9-29-2015

Gabriel A. Fuentes
Andrew W. Vail
Justin C. Steffen
JENNER &BLOCK LLP
353 N. Clark St.
Chicago, IL 60654
Telephone: (312)222-9350
Facsimile: (312)527-0484
Counselfor Willie Johnson