dissenting:
This case now stands on a very different footing than it did in 1972, when the Supreme Court of the United States, in a five to four decision, affirmed the conviction of the defendant for the murder of Bernard Zitek. The primary focus centered then, as it does now, upon the testimony of the witness Sanders that “two days after the murder, he was in the Ponderosa Tap and that a customer there, whom Sanders identified as ‘Slick,’ remarked to Sanders that it was ‘open season on bartenders’ and that he had shot one in Lansing. At the trial Sanders identified Moore as the man who was in the Ponderosa Tap on April 27.” Moore v. Illinois (1972), 408 U.S. 786, 789, 33 L. Ed. 2d 706, 710, 92 S. Ct. 2562.
The ambiguity that existed as to the meaning of Sanders’ testimony at the first post-conviction hearing has now been removed. As the present opinion of this court states, Sanders “unequivocally disavowed his trial identification of defendant as the one who made the incriminating admission.” In other words, it is now clear that it was not, as the jury had been told, the defendant Moore who admitted the murder. Instead, the admission was made by a man known as “Slick,” whom Sanders had first met while the defendant Moore was in the penitentiary at Leavenworth.
Sanders has testified that he had first met the man he knew as “Slick” in Wanda and Dell’s Tavern in the fall of 1961, when “Slick” had an altercation with William Thompson. This testimony is not a recent fabrication. The police had Sanders’ statement to that effect on April 30, 1962, a full six months before Moore was arrested for an unrelated offense, on October 31, 1962. Both Thompson and Delbert Jones, the proprietor of Wanda and Dell’s, have testified that such an altercation occurred, and that the man involved in it was not the defendant Moore, but a man named James Watts, who was known as “Slick.”
The failure of the police to disclose that it was not Moore who had confessed to the killing may have been accidental, or it may not. From the outset of the investigation, the police knew of the existence of Sanders and of the admission made to him. They knew also of the existence of the witnesses Joyce and Fair. The defendant Moore appeared in numerous lineups after his arrest, but neither Sanders nor Thompson was taken to any of those lineups. Thompson was not called as a witness at the trial, but the police had shown him a picture of the defendant Moore, and they knew that he had said that Moore was not the man named Slick whom he knew. Sanders did not see the defendant until the trial in May of 1964. For some reason the State resisted efforts, both at the trial and at the post-conviction hearing, to establish that neither Joyce nor Fair saw the defendant from the time of the incident at the Ponderosa Tap until the trial. When Sanders first saw Moore at the trial, he protested that the man he knew was 30 or 40 pounds heavier than Moore. His misgivings were allayed, however, by the police officer’s reply: “Well, you know how jailhouse beans are.” At the trial, Fair was able only to say that the defendant Moore “looks like one of the men” who was in the Ponderosa Tap. A responsible offer to prove that when Joyce first saw the defendant Moore at the trial he said, “He sure looks different,” was rejected.
Despite the fact that additional evidence has demonstrated that Sanders’ post-conviction testimony was misunderstood, this court would now sustain the conviction by mounting, sua sponte, an attack on Sanders’ credibility. That attack relates to the height of James E. “Slick” Watts, and it is rebutted by the arrest records of the Chicago Police Department.
In this case the State of Illinois knowingly permitted testimony which it knew to be false to remain uncorrected. There is no doubt that it might have affected the outcome of the trial, for it involves attribution to this defendant of a confession that someone else made. It will not do to say that there is no violation of the Constitution because it was not proved that the falsity was known to the prosecutor who tried the case. The actions of police officers are actions of the State of Illinois for all other fourteenth amendment purposes, and there is no reason why a different rule should be applied when life or liberty depends upon the outcome of a trial.