John Pecoraro

John Pecoraro was convicted of murdering Jimmy Ray Christian on December 6, 1982, and sentenced to death ( in 2011 Illinois abolished the death penalty, and sentences were commuted to life imprisonment ).

John was convicted on the basis of an unsigned confession, which he denies he made, and witnesses who may have had an incentive to lie.

According to a review in The Chicago Daily Law Bulletin (see below), the State did not disclose information about a third person who allegedly confessed to the killing, and failed to   disclose a promise of leniency it made to a witness, in exchange for cooperation.

Discussion

* The review ( source ) titled “When exculpatory evidence never makes it to defendant”

Reading the Illinois Supreme Court’s decision in People v. John Pecoraro, No.78457 (Feb.6), one gets the distinct impression that the defendant got more vengeance than justice in his litigation.

In Pecoraro, the high court found that the state’s failure to disclose information about a third person who allegedly confessed to the killing – a killing for which the defendant received the death penalty – did not constitute a violation of Brady v.Maryland, 373 U.S. 83,10 L.Ed.2d 215, 83 S.Ct.1194 (1963), and its progeny. The court also found that the state’s failure to disclose a promise of leniency it made to a witness, in exchange for cooperation, did not impair the defense – since the defense had discovered different helpful information on its own. The Supreme Court reasoned that because the defendant did not allege or prove that the witness had testified falsely at trial, no harm had been done.

To justify its ruling regarding the harmlessness of the failure to disclose the statement by the third party, who had admitted to committing the crime, the court discussed the admissibility of that third party’s statement under established rules of evidence. In doing so, the high court reviewed the several predicates for the admissibility of a hearsay statement by a third party who admits to committing a crime, as set forth in Chambers v.Mississippi, 410 U.S.284,35 L.Ed.2d297,93 S.Ct.1038 (1973), and the court determined that the statement would have been inadmissible hearsay – thus not causing harmful error.

In regard to the state’s failure to disclose its promise of leniency to the cooperating witness, the court reasoned that no harm had been done since that information would have been of little help to the defense in light of all the other impeachment evidence the defense had acquired on its own. The court thus found that the state’s failure to disclose the additional impeachment material was harmless to the defendant’s case.

With all due respect for our Supreme Court, it appears this ruling either shows a callous indifference to procedural due process and the right to counsel or lack of common sense. Surely our state’s highest court knows that a defense attorney’s efforts are not limited to the four corners of the discovery information received from the state.

If the state discloses the name of a witness who claims to have committed the crime for which one’s client stands accused, a competent defense attorney would usually hire an investigator and try to obtain admissible evidence showing that the declarant – not the accused – committed the crime in question. Furthermore, an effective defense team might be able to convince the declarant to testify – in which case there would be no hearsay problem. But if the state is allowed to hide exculpatory information from the defense, investigation opportunities can be destroyed before they can ever begin. In essence, the state would be able to deny an accused the assistance of counsel by simply hiding exculpatory material.

Note that in U.S. v. Bagley, 473 U.S.667 (1985), the U.S. Supreme Court held that, regardless of whether information is requested by the accused, favourable evidence is material, and constitutional error results from its suppression by the government if suppression adversely affects an outcome.

With regard to the state’s failure to disclose the deal it had with one of its witnesses, and the Pecoraro court’s finding that the lack of disclosure was harmless in light of other impeachment information, how would the court have ruled had a defendant asked that the state not be allowed to introduce cumulative evidence?

For instance, if this defendant had been willing to stipulate to the cause of death in his murder case, would the court have barred the state from offering gory autopsy photos? Probably not.

The Supreme Court frequently has ruled that a party trying to prove a point has the right to present all of its evidence – including gory autopsy photos. People v. LeMay, 35Ill.2d 208, 220 N.E.2d 194 (1966). In the instant case, the defendant was trying to prove that a key witness for the state was not credible. The defense should have been allowed to present all of the evidence it had on the credibility issue – including any deals the witness had with the state.

 

 

 

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