dissenting:
This appeal presents significant constitutional issues of first impression for Illinois courts, defining the limits of the State’s power to secure testimony against an accused by entering into a contingent plea agreement with an already-convicted accomplice which requires him to testify “truthfully,” but also “consistently” with certain prior statements. It is my view that these serious matters require in-depth analysis and careful consideration of the defendant’s arguments that such plea agreements violate an accused’s right to due process and a fair trial because they unduly interfere with the truth-seeking process and, therefore, should be prohibited in our courts. Because my colleagues now place their stamp of approval upon the State’s use of contingent plea agreements containing consistency clauses without addressing any of the arguments advanced by defendant in the context of the unique facts of this appeal, I cannot join the majority opinion.
Defendant was convicted in 1991 of two counts of first degree murder and sentenced to life imprisonment. During that trial, the State’s sole witness against defendant was a 12-year-old rival gang member, who testified that he saw defendant shoot the victims. Subsequently, however, this witness recanted his testimony, and, during postconviction proceedings, defendant was granted a new trial. It is this second trial, which took place in 2004, which is the subject of this appeal. The State’s only direct evidence against defendant in this new trial came through the testimony of Michael Johnson. Although Johnson had been a codefendant during the 1991 prosecution, he was tried separately, and the State did not present testimony from Johnson against defendant during those proceedings. Like defendant, Johnson had been convicted by a jury of two counts of first degree murder and sentenced to natural life imprisonment with no possibility of parole. Johnson was incarcerated at Tamms Correctional Center, a “super” maximum-security facility, when the State approached him in January 2004 — 13 years after the jury convicted him of double murder — with the offer of a plea bargain in exchange for his testimony against defendant in defendant’s second trial. For six months — from January to June 2004 — the State negotiated the terms of this plea agreement with Johnson.
Ultimately, the parties struck a deal in which Johnson would “testify truthfully” against defendant. The agreement required that “[s]uch truthful testimony shall be consistent with” (emphasis added) two of the several postarrest statements Johnson made to law enforcement officials subsequent to his arrest for the murders in 1989, as well as with Johnson’s preplea agreement interviews with the State, which occurred in April and May 2004. As part of his plea, Johnson agreed to “withdraw all appeals and post-conviction petitions in his case,” and “forever waive any and all future appeals, post-conviction petitions or motions to vacate pleas.” In exchange, the State agreed to “move to vacate [Johnson’s] existing sentence,” and promised that Johnson’s “case will be placed back on the [circuit court’s] trial call.” The agreement called for Johnson to then plead guilty to one count of first degree murder, and provided that the State would “nolle pros” the second first degree murder count of which Johnson had previously been convicted. Finally, the State agreed to recommend that Johnson be resentenced to 60 years’ incarceration, and that he be moved from the Tamms facility to a lower-level medium-security facility to serve the remainder of his sentence.
Johnson thereafter testified during defendant’s second trial. It was only after defendant was convicted that the plea agreement between Johnson and the State was executed. The circuit court’s docket sheet reflects that on July 27, 2004, Johnson’s “conviction of 2 counts of murder [was] vacated by agreement of the parties.” Thus, as a result of Johnson’s cooperation with the State and adherence to the provisions in the plea agreement, his two jury convictions for first degree murder entered 13 years earlier were erased, he pled guilty to only one count of first degree murder, was resentenced to 60 years’ imprisonment with credit for time already served, and was transferred from Tamms to a lower-security facility.
Defendant in this court questions the propriety of the plea agreement between Johnson and the State, asserting that his constitutional right to due process and a fair trial were violated by the method employed by the State in securing Johnson’s testimony, which was then used against defendant to obtain a conviction in his second trial. In addition, defendant also advances the broader argument that this court should generally prohibit the use of consistency clauses in contingency plea agreements, as such clauses interfere with due process and the search for the truth, placing a witness under a strong compulsion to testify to a particular set of facts and virtually “scripting” the witnesses’ testimony.
The majority holds that defendant lacks standing to contest the validity of the plea agreement entered into between the State and Johnson. Defendant argues that he has met the requirements for standing in that he has demonstrated an injury to a legally cognizable interest, that the injury is traceable to the State’s actions and that it is substantially likely to be redressed. See Village of Chatham v. County of Sangamon, 216 Ill. 2d 402, 419-20 (2005). Specifically, defendant asserts that the State’s use of Johnson’s testimony against him, procured through a plea agreement containing a consistency clause, violated his legally cognizable interest in due process and a fair trial. The majority, however, never squarely addresses defendant’s contention in the context of the specific facts of this case. Instead, my colleagues generally state that “[ajbsent due process concerns, the validity of a plea agreement is generally governed by contract law.” 236 Ill. 2d at 9. They then note that under general contract principles there is a strong presumption that the agreement benefits the parties to it and not a third party, and that this presumption may only be overcome by showing that the parties to the agreement had an affirmative intent to benefit the third party. The majority then summarily states that under these contract principles, defendant “lacks standing to argue that the agreement was invalid.” 236 Ill. 2d at 10.
Although the majority notes the general rule that contract provisions govern plea agreements “absent due process concerns,” and strictly confines its discussion of standing to an application of contract principles, it is precisely the aforementioned “due process concerns” which animate defendant’s argument and which are not addressed by the majority’s opinion. The arguments raised by defendant implicate more than simple citation to general contract principles. As defendant notes, this court has previously observed in a related context that the underlying “contract” right in plea bargains are “constitutionally based and therefore reflect[ ] concerns that differ fundamentally from and run wider than those of commercial contract law,” and that, because of this, “the application of contract law principles to plea agreements may require tempering in some instances.” People v. Evans, 174 Ill. 2d 320, 326-27 (1996). I am unconvinced by the majority’s terse analysis that no considerations other than those of contract law come into play under the specific facts presented here.
In addition, the majority gives short shrift to defendant’s argument questioning the authority of both the State and the circuit court to erase a jury conviction for double murder 13 years after its entry. According to defendant, upholding the plea bargain between Johnson and the State under the specific circumstances presented in this case is tantamount to holding that the State has the absolute authority to overturn a jury verdict of guilty. Defendant explains that this occurs through the offer of a plea bargain wherein the State determines which of various statements made by a witness are “true,” and then compels that witness to adhere to these statements throughout his testimony under the requirements of the consistency clause. In addition, defendant argues that the circuit court lacked jurisdiction to vacate Johnson’s two jury convictions, entered 13 years earlier.
In its opinion, the majority briefly references “defendant’s argument that the State lacked the authority to enter into a plea agreement with Johnson,” and immediately finds it “unavailing.” 236 Ill. 2d at 10. The majority disposes of defendant’s serious contentions in one sentence, holding that “[ujnder the revestment doctrine, litigants may revest a trial court with personal and subject matter jurisdiction, after the 30-day period following final judgment, if they actively participate in proceedings that are inconsistent with the merits of the prior judgment.” 236 Ill. 2d at 10.
In People v. Flowers, 208 Ill. 2d 291 (2003), this court clearly stated that “[t]he jurisdiction of trial courts to reconsider and modify their judgments is not indefinite,” and held that a trial court normally loses jurisdiction to vacate or modify its judgement 30 days after entry of that judgment, unless a timely postjudgment motion is filed. Flowers, 208 Ill. 2d at 303. We further held that “[l]ack of subject matter jurisdiction is not subject to waiver [citation] and cannot be cured through consent of the parties [citation].” Flowers, 208 Ill. 2d at 303. Although we were not called upon to directly address the continued vitality of the revestment doctrine in Flowers, the unequivocal language in that opinion has caused our appellate court to question whether the revestment doctrine remains valid. See People v. Price, 364 Ill. App. 3d 543, 546-47 (2006) (although leaving open the question of whether the revestment doctrine survived Flowers, the court noted that Flowers was “consistent with the maxim that a party may not waive an objection to subject matter jurisdiction”).
Although the majority in its opinion summarily holds that the revestment doctrine bestowed upon the parties and the circuit court the authority to wipe away Johnson’s prior double murder convictions 13 years after their entry and allow him to plead guilty to one count of murder and a reduced sentence, I note that my colleagues cite to the appellate court decision in People v. Minniti, 373 Ill. App. 3d 55 (2007), for direct support of this holding. The Minniti decision itself discusses the uncertainty within the appellate court regarding the continued vitality of the revestment doctrine subsequent to our decision in Flowers. Minniti, 373 Ill. App. 3d at 65-66. Ultimately, after examining the history and purposes of the revestment doctrine, Minniti concludes that “the revestment doctrine remains intact” after Flowers. Minniti, 373 Ill. App. 3d at 66.
It is curious that the majority relies upon the appellate court’s decision in Minniti for direct support of its application of the revestment doctrine in the instant appeal. As stated, Minniti struggled to interpret the impact of our decision in Flowers upon the continued vitality of the revestment doctrine, and concluded, based upon a review of our prior case law, that the doctrine of revestment could be reconciled with Flowers. It is my position that it is the duty of this court to reconcile its own decisions, and that we should speak directly to the bench and bar as to the reasoning for doing so, and not indirectly through citation to an appellate court decision which attempts to divine the intent of this court. The majority’s one-sentence statement regarding the revestment doctrine, and its citation to this appellate court decision in support of its holding, does nothing to reconcile the language in Flowers — which is contrary to the revestment doctrine — and also does not answer the fundamental question raised by defendant in the matter before us as to the authority of the State and the circuit court to nullify a jury verdict entered over a decade ago. Finally, I note that even if there were no question concerning the vitality of the revestment doctrine, there remains a question as to whether it applies under the unique facts of this case. In Minniti — the case cited by the majority in support of its holding — the revestment doctrine was applied to revest the circuit court with jurisdiction to hear a postjudgment motion which was untimely by eight days. Minniti, 373 Ill. App. 3d at 64. Here, the majority revests the circuit court with jurisdiction 13 years after entry of Johnson’s conviction. I question whether the purposes and principles underlying the revestment doctrine may be stretched that far.
After determining that defendant does not have standing to challenge the plea agreement between the State and Johnson, the majority further holds that even if he did have standing, defendant’s arguments would fail. Defendant contends that his right to due process and a fair trial includes the right to be tried on competent evidence. Although the majority acknowledges that “accomplice testimony by its nature is fraught with serious weaknesses” (236 Ill. 2d at 16), it dismisses defendant’s assertion that the testimony offered by Johnson against him is especially suspect because Johnson’s plea agreement with the State required that his testimony be consistent with certain of his prior statements, statements which Johnson had, in fact, previously contradicted under oath. Specifically, after his arrest in 1989, Johnson had initially provided statements to law enforcement officers in which he denied any involvement in the crime. Subsequently, however, Johnson provided an inculpatory statement which also implicated defendant. Before his trial, Johnson again changed his position and filed a motion to suppress his inculpatory statement, and testified under oath that he did not understand the concept of Miranda rights, was not given Miranda rights, did not provide the information that was contained in his confession, and did not remember making the confession.
Defendant underscores that pursuant to the terms of the plea agreement between the State and Johnson, Johnson’s testimony was required to be consistent only with those statements wherein he implicated defendant, despite the fact that Johnson himself testified under oath at his suppression hearing that he did not make those same statements. Defendant further contends that, although the plea agreement required that Johnson’s testimony be “truthful,” it is difficult to ascertain under the facts presented what exactly the “truth” is. According to defendant, the State has made the determination that the “truth” equates with the contents of certain prior statements made by Johnson. However, defendant contends, the State thereby improperly places itself in the position of the trier of fact in making that determination. Defendant maintains that the State has no crystal ball to know what the “truth” is — it only knows what statements are consistent.
Defendant further argues that the effect of the plea agreement was to place Johnson under an extremely strong compulsion to testify against defendant in a particular manner in an effort to please the State. Defendant asserts that once he was granted a new trial due to the recantation by the State’s key witness at the first trial, the State was desperate to obtain Johnson’s testimony, which was the only direct evidence against defendant at the second trial. In order to do so, defendant maintains that the State had to offer Johnson an agreement he would find difficult to refuse. In exchange, Johnson had to testify in such a way that would ensure that defendant would be convicted, or Johnson would himself return to facing life in prison. According to defendant, when a witness is presented with such a situation, the testimony of that witness will, by necessity, conform to what is dictated by the State. Defendant concludes that this amounts to Johnson delivering “scripted” testimony which is inconsistent with the search for the truth and impugns the integrity of the justice system.
The majority fails to squarely address defendant’s contentions. Rather, my colleagues examine case law from other jurisdictions and draw support from those decisions for its conclusion that the plea agreement between the State and Johnson did not violate defendant’s rights because even though Johnson agreed that his testimony would be consistent with certain prior statements he had made, it also required that the testimony be “truthful.” A closer examination of the cases relied upon by the majority, however, undermines support for its holding, as these decisions upheld plea agreements containing consistency clauses in situations factually distinguishable from the matter at bar.
In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), a codefendant was offered a plea agreement whereby in exchange for his testimony against the defendant, he would receive a reduced sentence. There, the agreement provided:
“If [the codefendant witness] testifies truthfully as to [defendant’s] involvement in the murder of [the victim] and as he stated in his statement to [law enforcement] on 3/21/94 at 6:05 p.m. and as to threats made to him by [defendant] then [the State] will offer a plea to 2d Degree Murder, Range I, judicial sentencing.” Bolden, 979 S.W.2d at 589.
The court held that because the agreement “hinged upon truthful testimony” (Bolden, 979 S.W.2d at 592), it did not require that the witness testify in accordance with a particular script.
Similarly, in People v. Jones, 236 Mich. App. 396, 600 N.W.2d 652 (1999), witnesses against the defendant were granted “use” immunity in exchange for their testimony against him. There, the agreements provided:
“IN THE MATTER OF [Witness], that if [Witness] provides a truthful statement to the Detroit Police Department concerning his knowledge of the killing of [the victim] and testifies truthfully in all trials, proceedings and hearings in connection with that killing the Wayne County Prosecutor’s Office will not use [Witness’] testimony to bring charges against him.” Jones, 236 Mich. App. at 399, 600 N.W.2d at 654.
The court upheld the agreement, noting that although the immunity agreements provided “some incentive” for the witnesses to conform their testimony at trial to their prior accounts, it was “not persuaded that the agreements rendered the witnesses’ testimony so tainted as to be inadmissible.” Jones, 236 Mich. App. at 406, 600 N.W.2d at 657.
In the instant appeal, Johnson had been incarcerated for over a decade for double murder when he was approached by the State with a plea agreement encouraging him to testify against defendant; no similar fact pattern exists in either Bolden or Jones. Further, in both Bolden and Jones, the terms of the plea agreements differ in significant respect from that in the matter at bar, as neither contained a provision such as here which required that the witness must not only testify “truthfully,” but also that his testimony “shall” be consistent with certain of his prior statements. Further, there is no indication in either of these cases that the witnesses had a history of inconsistent statements under oath, as does Johnson. Finally, it does not appear that the witnesses in those cases received the extent of benefits offered to Johnson in exchange for his testimony, including the nullification of a jury verdict and the erasing of a conviction, reduction in sentence, and a transfer from a super-maximum security facility to a lower-security facility. Because the cases relied upon by the majority are factually distinguishable, I do not find them supportive of its holding that the plea agreement here was unobjectionable and that such agreements should be condoned in the future under Illinois law.
For the foregoing reasons, I cannot join the majority’s opinion.
JUSTICES KILBRIDE and BURKE join in this dissent.