AuthorWright, Erin M.

INTRODUCTION 433 I. WAYNE WASHINGTON 435 II. SECTION 2-702 438 A. Purpose 438 B. What is Voluntary? 439 1. What Acts Did the Legislature Contemplate? 441 2. The Presence of Coercion Nullifies a Voluntary Act 442 3. No Reasonable Alternatives 445 4. Alford Pleas 448 C. Judicial Frustration of Section 2-702 449 1. People v. Amor 450 2. People v. Reed. 454 D. Existing Obstacles 455 1. Technical Obstacles and Collateral Consequences 455 2. Recidivism Statutes 458 3. Substantive Obstacles 459 III. INADEQUACY OF POST-CONVICTION REMEDIES 461 A. Clemency Power: Executive Pardons and Commutation 461 B. Sealing Records and Expungement 463 C. Exoneration 465 D. Why Certificates of Innocence Are the Only Adequate Remedy 466 IV. SOLUTIONS 467 A. Legislative Remedies 467 B. Judicial Considerations 469 1. The Use of "Voluntary" in Relevant State Statutes 469 2. Other Considerations 471 CONCLUSION 471 "In an age when social justice is the watchword of legislative reform, it is strange that society, at least in this country, utterly disregards the plight of the innocent victim of unjust conviction or detention in criminal cases. " --Edwin Borchard ([dagger]) INTRODUCTION

In 2008, the Illinois State Legislature found that "innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law[.]" (1) The Illinois General Assembly attempted to remedy this problem by creating a Certificate of Innocence (COI), which confers two primary benefits. First, through expungement, a COI removes the legal consequences of a conviction. (2) Second, it provides limited financial compensation for the time a person spent wrongfully incarcerated. (3) In order to receive a COI, a petitioner must show by a preponderance of the evidence that he or she "did not by his or her own conduct voluntarily cause or bring about his or her conviction." (4) Despite the legislature's recognition that "substantive and technical obstacles" (5) prevent wrongly convicted individuals from obtaining relief, Illinois courts have nevertheless imposed them.

Although it is well established that granting a COI is "generally within the sound discretion of the court," (6) the Illinois judiciary routinely abuses its discretion when it ignores the circumstances that often lead an individual to confess to crimes they did not commit, or accept a plea bargain to avoid lengthy prison sentences. (7) Although the resulting convictions appear voluntary in the eyes of the court, many of them are not. (8) This approach ignores the power of the state to coerce an individual into relinquishing innocence, including false confessions obtained during custodial interrogations and plea bargains designed to disguise acceptance as a rational choice. (9)

The case of Wayne Washington exemplifies the imposition of substantive and technical obstacles by the courts that the legislature expressly intended to ameliorate. Last year, a divided Illinois appellate court affirmed the denial of Washington's Certificate because the majority determined that he caused his conviction by accepting a plea bargain. (10) Washington accepted the terms after seeing his co-defendant sentenced to seventy-five years for a murder neither of them committed. (11) The majority focused on Washington's voluntary acceptance of the plea as the determinative factor, yet indicated its preference not to struggle with "voluntarily" by omitting the term from its statutory analysis. (12) This approach is plainly incorrect.

The relevant inquiry should be whether Washington voluntarily accepted the terms of an agreement with prosecutors. It is a numbingly familiar concept that many defendants accept a plea bargain to reduce a potentially lengthy sentence. (13) By leveraging the risk of a severe sentence imposed after an unpredictable jury trial, the prosecuting authority can induce a defendant to accept a plea bargain that they would not otherwise accept.Because a defendant cannot freely enter the terms of a plea bargain--disguised as a rational choice--their agreement cannot be voluntary. It follows that denying a COI based on these circumstances is erroneous.

This Comment argues that because a Certificate of Innocence is the only adequate remedy to vindicate a wrongfully convicted individual in Illinois, the judiciary actively frustrates the administration of justice by ignoring circumstances that culminate in a wrongful conviction. Part I introduces the case of Wayne Washington. Part II discusses the purpose of Section 2-702 and the meaning of "voluntary" in the context of confessions. It also explores judicial frustration of Section 2-702 through recent Illinois decisions and the creation of technical and substantive obstacles that the statute was designed to remedy. Part III discusses the inadequacy of post-conviction remedies and why COIs are the only adequate remedy for a wrongful conviction. Finally, Part IV proposes potential solutions the legislative and judicial branches could employ to solve this problem.


    In 1993, Wayne Washington and Tyrone Hood were arrested for the murder of Marshall Morgan, Jr., a young college basketball star. (14) Police initially arrested Tyrone Hood after identifying his fingerprints on two beer bottles among the trash found in Morgan Jr.'s vehicle. (15) Hood was taken into custody and interrogated for two to three days. (16) Police handcuffed Hood to the wall and "physically abused and verbally abused, kicked, choked, [and] punched" him before releasing him. (17) A few days later, Hood and Washington were arrested at a neighborhood convenience store and taken to the Area One Detective Division, (18) where detectives, including Kenneth Boudreau (19) and John Halloran, questioned them. (20) Washington told the detectives he had no knowledge of the murder. (21) During Washington's interrogation, detectives used physical violence--"including punching and slapping him while he was handcuffed, and told him that" other witnesses' statements implicated him--until he agreed to cooperate. (22) Washington claimed that police promised him he could go home if he "said certain things." (23)

    Those "certain things" included Washington taking responsibility for the murder in a signed confession. (24) At the subsequent trial in 1995, prosecutors presented Washington's confession as well as inculpatory statements from eyewitnesses that were recanted before the trial. (25) The jury failed to reach a verdict. (26) In early 1996, Tyrone Hood was convicted in a separate bench trial and sentenced to seventy-five years. (27) Prosecutors then offered Washington a sentence of twenty-five years in exchange for his guilty plea. (28) Washington testified that he accepted the deal because by taking it, he knew he would still have "'a chance at a life.'" (29)

    The New Yorker published an investigative article detailing police misconduct in the murder of Marshall Morgan, Jr. in August 2014. (30) Subsequently, on February 19, 2015, the circuit court granted the State's motion to vacate Washington's conviction and granted him a new trial. (31) The State dropped the charges against Washington. (32)

    In June 2021, the First District Appellate Court of Illinois denied Wayne Washington's petition for a COI under 2-702(g)(4), finding that he voluntarily caused his conviction. (33) Despite Washington's claims that police coerced him into signing a false confession in 1993, the majority determined that Washington's "testimony that his confession was the result of police coercion was not credible and otherwise uncorroborated." (34) Washington's lone testimony was seemingly dispositive for the majority, who found the circuit court acted within its discretion to discredit it. (35) Put another way, the court found that absent coercion, Washington voluntarily confessed. (36)

    Yet reviewing an abuse of discretion requires an appellate court to decide whether a circuit court's factual determination is against the manifest weight of the evidence. (37) Is it? Washington's petition asserted that police unlawfully coerced his 1993 confession by beating him during arrest and interrogation, testifying that "police told him that if he said certain things he could go home." (38) Washington also testified that he only confessed after detectives Kenneth Boudreau and John Halloran beat and slapped him because he "couldn't stand the beatings any longer." (39)

    Both the circuit court and appellate majority ignored statements from witnesses alleging police coercion. (40) One witness swore that his testimony against Washington was false because police threatened to beat him and charge him with murder. (41) Another witness stated that police paid him to give false testimony against Washington and threatened to implicate him in the murder if he did not cooperate. (42)

    Still, the falsity of these statements was sufficient to reverse the denial of Tyrone Hood's petition. (43) The First District, in part, "clearly disregarded the complete absence of any evidence submitted to contradict or rebut Hood's testimony regarding his innocence." (44) The only difference between Washington and Hood is Washington's confession and guilty plea. (45)

  2. SECTION 2-702

    This Part discusses the purpose of Section 2-702, considers the meaning of "voluntary," and discusses instances in which judicial error or intention frustrated the purpose of Section 2-702 by disregarding the meaning of or ignoring the term "voluntary."

    1. PURPOSE

      While courts are traditionally hesitant to divine the purpose of a statute, Section 2-702 clearly defines the problem it attempts to solve. It provides that "innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law...." (46) The General...

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