Disparities in postconviction remedies for those who plead guilty and those convicted at trial: a survey of state statutes and recommendations for reform.

• Author: Stephens, Rebecca

1. INTRODUCTION

   On November 19, 1991, a fourteen-year-old girl named Cateresa Matthews went missing in her hometown of Dixmoor, Illinois. (1) A few weeks later, her body was found in a nearby field; she had been sexually assaulted and died from a gunshot wound to the mouth. (2) In late October and early November 1992, police arrested five suspects, all between the ages of fourteen and sixteen, named Robert Taylor, Robert Lee Veal, Jonathan Barr, James Harden, and Shainne Sharp--a group that later came to be known as the "Dixmoor Five." (3) After lengthy interrogations by police, three of the teens confessed to the crime, each implicating the five teens who were ultimately charged. (4) During the pretrial investigation, DNA testing was conducted on sperm recovered from the victim's body; the results excluded all five of the teenagers. Regardless, the State continued to press charges against all five suspects. (5)

   Two of the teens--Robert Veal and Shainne Sharp--agreed to plead guilty and testify against the other three in exchange for shorter sentences. (6) The other three were convicted after trials, and each was sentenced to at least eighty years in prison. (7) Both Veal and Sharp have since recanted their testimony, confessions, and statements implicating the other three men. (8)

   In November 1994, thirty-year-old Nina Glover was found naked and strangled to death in a dumpster in the Englewood neighborhood of Chicago's South Side. (9) Four months later, a tip allegedly led police to investigate five teenagers in the murder--Terrill Swift, Harold Richardson, Michael Saunders, Vincent Thames, and Jerry Fincher. (10) After intense, hours-long interrogations, during which the teenagers were not accompanied by counsel or allowed to speak to family members, police said that all five had confessed to raping and killing the woman, although there were major factual discrepancies in their statements. (11) Semen was identified on samples collected from the victim's body and an early form of DNA testing was conducted, excluding all five suspects as possible contributors. Despite this evidence, the prosecutors went forward with the trials. (12) Though it is unclear why the prosecutors continued with the trials after the only physical evidence from the crime excluded all five of the teenagers, later statements by the Cook County State's Attorney's Office (CCSAO) indicated that the prosecutors felt that the confessions alone were strong enough evidence of the teenagers' guilt. (13)

   Three defendants--Terrill Swift, Harold Richardson, and Michael Saunders--were convicted almost exclusively based on the confessions and sentenced to prison terms ranging from thirty to forty years. A fourth, Vincent Thames, after seeing two of the others convicted at trial and sentenced to lengthy prison terms, pleaded guilty and received a thirty-year sentence. (14) These four men later became known as the "Englewood Four." (15) The fifth defendant's confession was suppressed and prosecutors dropped the charges against him. (16) All five of the men claimed their confessions were coerced and false and have since maintained their innocence.

   In the state of Illinois, those who plead guilty are barred from later seeking DNA testing on the evidence in their cases. (17) As a result, Robert Veal and Shainne Sharp from the Dixmoor case and Vincent Thames from the Englewood case had no way to prove their innocence. However, in 2011, their codefendants who were convicted at trial successfully petitioned courts to have relevant DNA evidence retested and run through the Combined DNA Index System to see if a match could be found. (18) In each case, the DNA was found to match a violent, career criminal. In the Dixmoor case, the DNA matched a man who already had one rape conviction, and in the Englewood case, the DNA matched a man who had already been convicted of one murder and charged in another after his DNA was found on each of the victims' bodies. (19)

   In each case, the defendants who had lost at trial quickly filed motions to vacate their convictions. (20) However, in both cases the State argued that the defendants who pleaded guilty were barred from participating in those postconviction proceedings. (21) While the Illinois postconviction statute does not explicitly bar individuals who plead guilty from filing postconviction petitions, prosecutors argued that because the DNA testing statute has been interpreted as excluding those who plead guilty from petitioning the court for forensic testing, the postconviction statute providing relief from judgments should also be interpreted as barring them from filing motions for postconviction relief. (22) Prosecutors further argued that those who pleaded guilty should not be able to "bootstrap" their claims onto the claims of the other men. (23)

   The Dixmoor Five and Englewood Four cases were before two different judges, and the two judges interpreted the statute in conflicting ways. In September 2011, the Dixmoor Five case was argued before Judge Michelle Simmons, who ultimately agreed with the State's arguments and dismissed Robert Lee Veal's postconviction petition, holding that, as a result of his guilty plea, he was barred from the postconviction proceedings to which his codefendants who went to trial were entitled. (24) Ultimately, on November 3, 2011, the CCSAO formally requested that Judge Simmons vacate the convictions of the Dixmoor Five and to nolle prosequi future charges. (25) Judge Simmons entered an order vacating the convictions of the three codefendants who went to trial and, a little while later, also vacated the convictions of the two codefendants who pleaded guilty, thus rendering the issue moot. (26)

   However, in the Englewood Four case, the judge reached a different conclusion. On October 10, 2011, attorneys for the Englewood Four and the State argued their respective motions before Judge Paul Biebel Jr., Presiding Judge of the Criminal Division of the Circuit Court of Cook County. On November 16, 2011, Judge Biebel issued a written decision holding that those who plead guilty are "not barred from seeking relief pursuant to Section 2-1401," the Illinois statute establishing a process by which a defendant may seek relief from a judicial order more than thirty days after its entry. (27) The judge vacated the convictions of all four of the codefendants. (28)

   As demonstrated by the Dixmoor Five and Englewood Four cases, the law in Illinois governing postconviction remedies for those who plead guilty is unclear and has been interpreted in different and conflicting ways. The postconviction laws in other states are equally diverse and unclear with regard to those who plead guilty. (29) Part II of this Comment analyzes the postconviction remedies available in all fifty states, including access to DNA or other forensic testing and general postconviction remedies, and considers how those who plead guilty are treated differently from those who were convicted at trial. Part III argues that to treat those who plead guilty differently from those who are convicted at trial is inherently unjust. Finally, Part IV provides legislative recommendations to ensure that all people are treated equally in the postconviction context and given opportunities to demonstrate their innocence.

2. BACKGROUND

   Generally, there are three main types of postconviction remedies governed by state statute--DNA or other forensic testing, general postconviction remedies, and habeas corpus petitions. For the purposes of this Comment, "DNA or other forensic testing" refers to the ability of someone who has been found guilty of a crime to petition on his own behalf for forensic testing of DNA or other evidence related to the crime he was charged with. "General postconviction remedies" are procedures through which a prisoner requests a court to vacate or correct a conviction or sentence. (30) These include, but are not limited to, the ability of someone who has been convicted of a crime to petition on her own behalf to correct errors of fact or law in her underlying conviction, allege ineffective assistance of counsel, or bring new evidence to the attention of the trial court. "Habeas corpus" refers to the ability of someone who has been convicted of a crime to petition the court for a writ to ensure that his or her imprisonment or detention is not illegal. (31)

   1. DNA OR OTHER FORENSIC TESTING

      Currently the District of Columbia and all states besides Oklahoma have statutes covering the postconviction right to DNA or other forensic testing. (32) The laws granting postconviction petitioners the right to request DNA or other forensic testing vary significantly among the states, (33) and most state statutes do not directly address the issue of whether people who pleaded guilty can apply to have the evidence from their cases tested. (34) While some states explicitly grant guilty pleaders the right to apply for DNA or other forensic testing, (35) others explicitly exclude those who plead guilty from utilizing these provisions. (36) Other states place different limitations on postconviction DNA or other forensic testing, such as time barriers, extra requirements for those who plead guilty, or testing for only certain categories of cases. (37) The remaining states leave open the question of whether guilty pleaders can apply for DNA or forensic testing; however, some use language regarding trials that could imply that the remedy was meant to be limited solely to those who pleaded not guilty and were convicted by a jury. (38)

      1. States Granting Those Who Plead Guilty the Right to DNA or Other Forensic Testing

         Currently, thirteen states and the District of Columbia explicitly grant those who plead guilty the right to DNA or other forensic testing after the guilty plea is entered. (39) The California and West Virginia statutes provide that the right to file a motion for postconviction DNA testing is absolute and may not be waived, thus...