may have please the court chief justice fitzgerald good morning by name is eric radek assistant public defender for edwin prevent cook county public defender for counsel for the petitioner james you cannot promise to pay for witnesses testimony tell the witness to tell the truth and then tell the witness what the truth is this court must define the limits of the prosecutor's authority methods to secure evidence against the accused there are two issues before the court first did the prosecution deny change spencer due process that a fair trial and impugn the integrity of the criminal justice system when it bargained for testimony from a convicted codefendant using a consistency clause within a contingency plea agreement when this testimony was the only direct evidence of james bannister's guilt into should this court bar the use of consistency clauses in contingency clear agreement within illinois and specifically in james pants or skates as the court is familiar with the facts addressing the first issue james bannister's right to due process and a fair trial was decimated by the acts of the prosecutors in this case for four and there are four points that support that the first james bannister had a due process right to a fair trial second the state had no authority to enter that plea agreement with johnson the codefendant who was convicted and third the state had no authority to deliver on the promise that it made to the convicted for and most important the prosecution placed johnson under a compulsion to testify that was so great that it tainted the evidence and impugn the integrity of the criminal justice system now moving to the first point james france or had a due process right to a fair trial every criminal defendant every person accused has that right and it's guaranteed by the fourteenth amendment as well as illinois constitutional provisions and that right to  process includes the right to be tried on competent evidence this court has emphasize that accomplice testimony is fraught with serious weaknesses and should be accepted only w that injury having been caused by be offending party and injury that's capable of being reach us in this case james banisters due process right fundamental right to due process and a fair trial is that legally cognizable interest in at this trial the use of testimony that was both scripted and pursued granted pursuant to a contingency plea agreement violated james bannister's right to do trial that was  the jury in fact and then the cause of that injury was the prosecution securing up to seven ends through the use of a condemned plea agreement that this court should not condone as you've noted this is a case of first testimony your honor should absolutely be banned from mistakes no difference that there was that there was a general requirement that the witness testify truthful truthful would not be enough to overcome the problems cause you have a calculus of this in this situation because the testimony was required to be consistent with prior statements prior statements that had been contradicted under oath before to require consistency or there have been agreements albeit on a larger inspection of proving cases in which there was a promise justified true that's correct your honor however in none of those cases was  second issue you're on about i want to be sure to pull the answer what the court has raised in a simply this whenever you require a witness to testify consistently with testimony regardless of mandating that it be the truth as well how does the prosecution know what the truth is it does not it only knows what is consistent when a prosecutor is placed in the position of determining that the truth are statements that have previously been made the prosecution places itself in the position of being the trier of fact the prosecution cannot determine truth the prosecution can only determine consistency so when you require consistency and truth you are equating the truth with consistency that is not at miscible evidence within illinois this should not be condoned because it is tantamount to a script in each of the jurisdictions from california to nebraska even the tennessee decision state versus bolden cited by the state evidence because of the interference of the prosecution was tainted and tainted evidence is inadmissible tainted comes about when scripting occurs and scripting occurs when a witness is placed under a the judge knew of course that this convicted codefendant had testified previously in fact this particular trial court had sat through the trial of this convict a codefendant it was a jury trial and a jury trial determined that johnson was guilty of two murders and that jury verdict was undisturbed from the point of conviction in one thousand nine hundred one until the state showed up with its plea offer in two thousand and four in illinois a prosecutor now has the authority to overturn a jury verdict of guilty the prosecutor has the authority to determine which of all the statements a witness has made are true and which ones are not that  banned however i'm acknowledging that many jurisdictions have found that consistency causes are permissible certainly the acknowledgment has to be that this has been used in jurisprudence the problem however occurs when consistency is equate with the truth and it is the state's attorney who is driving the driving force the determinant of what is true and there's a consistency agreement isn't that always it's a good if there's any consistency agreement honor the prosecutor would be the one mandating that testimony conform to a certain script and that is what should not be permitted in illinois consistency clauses invite witnesses to testify to please prosecutors yes your honor the defense did but it the problem with the concerned that according cross examination and fully disclosing the plea agreement that bat somehow cures the taint of evidence secured in this fashion is completely a fallacy the problem is this once the witness is tampered with to this degree the witness is placed under this conundrum johnson had to testify in such a way that bannister would be convicted and sent to prison for  or face doing life in prison himself when a witness is presented with those options the testimony bat witness gives will of necessity conform with what is dictated by the state johnson's life depended on it he had no hope of ever walking out of those prison doors he was convicted in one thousand nine hundred one on appeal direct appeal that conviction was a fund all of his post conviction petitions happened tonight in two thousand and four when the state showed up in the prison with this get out of jail early deal johnson was placed under a severe us of fear compulsion to provide this testimony against james and that's what he did and that is what this court cannot sanction when you require consistency and indicate that the witness has to tell the truth it was the language of this agreement that was so very offensive their state said michael johnson shall testify truthfully but the truth shall be consistent with his post arrest one thousand nine hundred statements and his statements in two thousand and four this to the exclusion of all the other statements he had made and the incentive was unbelievable to go from a conviction where you're spending the life of verdict a jury verdict which is sacred and to have a prosecutor who has the authority to magically  with jurisdiction thirteen years after the fact to cause and mislead a court to enter an order dismissing a jury verdict of guilty and in doing that to been read are allowed the same witness to repleat this defendant to repleat to a single murder for sixty years thirty days i'm sorry thirty years affectively because there would be different a good time credit credit for all the time this person has served in prison and with in tamms super maximum facility that is the other danger that this whole agreement costs that it will no department of corrections determine that because of the forty to fifty by away sions that johnson committed while in prison granted or required him to be held in a super maximum facility he was deemed a high security risk that is until the prosecutors showed up in two thousand and four with a plea offer that allowed him to plead to a sixty year term that would allow him to be released and to serve that prison sentence in the prison of his choice or a medium security prison once again the incentives together with the und time he belonged to what was considered a rival gang at the time he went to police he indicated that he had witnessed the event and gave testimony before the grand jury at six of the co defendants trial and then m ichael johnson's trial a short while later that same witness went to one of the lawyers at the seven minute minute but he perjured himself alternately that was the testimony that allowed james bannister to have a trial a retrial on these charges the state with the under will since testimony declared the perjury that it was had no case against james bannister and so in january of two thousand and four when the court granted banister a trial free from perjure testimony that the time for the state began working on johnson and they worked on him from january until june until johnson exceeded it to their wishes and they met johnson's demands which were let me out of jail let me out of that post arrest statement testimony was not truthful he would be in violation of the consistency agreement right yes he either way he'd be in violation if he didn't give if the post arrest statement was not truthful he'd be in violation of the consistency but it is again exactly that reason the requirement the state makes itself the trier of fact the state's function is to prosecute not to determine which statements today needs to decide what is going to be required if anything it is the position of the petitioner mr bannister that there is no place for consistency clauses in plea agreements but again acknowledging that they do exist the language of those agreements is critical in this case the prosecution required with the words johnson's testimony shall be consistent with in other jurisdictions less commanding language has been found to be violent to the script so in this case it is the precise language that the testimony shall be consistent with and again equating truth with consistency the prosecution can only determine whether the statements made previously are consistent with the statements made a trial that is not truth that is placing the prosecutor in the position of determining truth based on a witness's ability to say the same thing the witness said before what if the truth is something different and respectfully in this case there was a difference and we know that because james bannister presented the same four alibi witnesses he presented during his first trial his mother is to see so her testimony was presented through reading the transcript but the same witnesses and these weren't just all family members these were friends of the family there was a party at mr bannister's house the day these events occurred those family members together with friends of the family were present they showed up in court back hundred one and they provided testimony that was believed by the court and we know the trial court believe that testimony because the trial court stated during post conviction proceedings in a ruling on the denial of post conviction relief based on what with the alibi testimony and all those statements doles words indicate that the court found the alibi testimony credible and it was only when the prosecution entered in a way that it somehow by late it johnson's ability to speak the truth that the truth was overcome by the trial court this is conduct that this court must not condone it violated the truth seeking function of the criminal justice system and with all due  and incentives within this contingency plea agreement because scripted testimony by least due process it must be excluded from james mansur's case in from any case that is considered in illinois thank you arrest statements i can if johnson says i can't do that would you get the same deal if he said he couldn't testify consistently with that it would be he would it would depend as i would have to be depending on what he's telling the state now i mean how does it differ i mean if he's telling me it would depend on what that truthful testimony would be if you test if you agreed to testify truthfully but didn't want to do with consistency statement i believe we would have ended in the same agreement your really well certainly honor and that's why we were quiet in here not just to be truthful but be consistent with these prior statements because just to have to offer him this benefit and certainly to try to factor every benefit he was going to get and it would be pointless and not fair to the state to have him go out there without any guidelines for watch he was going to testify to we should have every right is he is the nevada supreme court held in a coup no the state has every right it's fair to the state for them to know in advance generally what that witness is going to testify to the witnesses in a coup not that the court went through it very thoroughly and explaining why this is fair so it would be me it would be neither we listed more fair to expect the state to enter into this bargain for this very reason because without assurances that that promise he's trial testimony would be consistent with the information he's been giving to the state it can be quite well known it's of the state has every right for this and saying concluding that bargaining of your honor at this point did to backtrack a little bit it's not fair to say that johnson had nothing pending at the time he had a post conviction petition appeal that was pending at the time your honors and as part of this agreement he agreed to have that it's very easy this was i'm not sure it was his first or second as i believe it would might have been a second p c your honor but he did he did have this appeal pending and he agreed to have it withdrawn of this witness's testimony this witness testified long before the trial court attempted to exercise jurisdiction over johnson johnson testified in the middle of june of two thousand and four at that point nothing had been acted upon by the trial court on  trial court acted on his on his plea agreement there's the admissibility of johnson's testimony cannot be questioned a codefendant an accomplice has every right to testify against a coach against nine it goes back as far as that this quote is called plea bargaining an essential component of the administration of justice and vital to and highly desirable for our criminal justice system here this plea agreement was between michael johnson and the state bannister had nothing to do with this yet here the defendant is challenging the very existence of this agreement and turns in challenging the very ability of michael johnson to void well first off he doesn't have standing to argue its point only johnson would have standing to challenge that it's akin were for the men violation your honor where is the defendant is claiming that evidence was taken illegally from a third person and can't be used against him that's essentially what he's doing saying this evidence was taken a legally from michael johnson it can't be used against me he simply has no standing but even if he did have standing here on this again this agreement was valid repeatedly on and on and on throughout this plea agreement that required every every eye witness has the obligation to testify truthfully or honor but here making that part of the plea agreement and making that agreement not only conditional upon that being truthful but noting in the limitations the plea agreement that if it later was determined that  heard every detail regarding michael johnson's and michelle statements his attempt to establish an alibi when he was first arrested heard about his court reporter statement heard about his attempt to bait cade that statement at his own trial and it and he  tended to make it on miranda grounds saying he didn't get miranda i wasn't claiming they didn't actually say it but the trial judge her every single detail this rather defendant cross examine him but really between michael between  they cross examine him for over ninety pages in the transcript the trial judge knew every detail about michael jackson not just his what he was getting out of this agreement not just his prior statements he knew about these prior alibi he knew about his behavior in prison he knew what he was going to get out of this deal and yet nevertheless at the end of this trial the trial judge found this to be substantial incredible new evidence substantial substantial incredible new evidence that's home to shrive term that he heard in all of this it was tried before the trial court and he knew everything about it consistency clause your honor where they require truthful testimony has been upheld in every single state that is addressed this is not true to say that's not the case for example in rivera in arizona in jones from michigan bolden from tennessee in a coma from the bad just to name a few every time there is a plea agreement that requires consistent and truthful statements consistent the terms of the agreement and in those cases the green required truthful testimony that was consistent with the plea agreement interviewer's it's precisely what's in the string plea agreement looking at this plea agreement it requires exactly testimony and the limitations of plea agreement it specifically says that if it was determined that these statements were thoughts if his testimony was false if what this agreement was based on was false the disagreement would be no and with false the border we're going to trust him or it was not it's just either one correctly run out but this far is the consistent part again that ties in with the truthfulness that ties in with the truthfulness because if it's found that these consistent statements were false this agreement would be void in addition runners johnson again he was not tied to bess again these were his own statements we did not script that this was johnson's testimony but in addition he didn't limit yourself to what was actually in those prior statements for instance and this all came out on cross examination he talked about going back upstairs to get some wave caps to wear that's nowhere in any of these prior statements but he testified to a trial by because it was part of the it's part of what happened it's part of the truth he also testified that they were smoking marijuana before they went down again then doesn't it he said in cross examination that doesn't help my credibility he said because everyone knows that smoking marijuana may impact your ability to remember smoking marijuana was not in any of the statements but it's part of what happened it's part of the narrative part of the truth of what johnson testified to and that came out so it wasn't just limited to this it was limited where how how would the prosecution find out well certainly the most important way would be if the trier of fact you're the trial judge found them to be false for instance i mean if you did find them to be false and  bannister finding specifically michael johnson testimony was false he testified consistently with these prior statements but i don't believe them i don't believe them i heard his testimony and i don't believe it if the trial judge did that there'd be no agreement because these statements in his not not necessarily your honor but of course if it was later determined in this part of that determination to find out if it was false if the trial judge makes a specific finding that this is false certainly that's no way heavily that johnson violated by a wave of the terms of his agreement so certainly it wasn't conditional upon finding of guilty of james bannister but if it was found that for instance the trier of fact could have found defended to be guilty but found he could have said i don't find johnson's testimony but also heard the prior testimony of deanna wilson and not coincidentally those facts from vienna wilson's prior testimony and what michael johnson testif to that they they match a match they they corroborate one another because that's actually what happened when it came out in testimony with d n a wilson specifically if this wasn't part of his that wasn't part of the post wilson told his mother warned her you know they came they came after me you know they can get you so be careful mom don't testify so certainly certainly bitchin that came out of the trial so certainly that would have an impact on the trier of fact determining whether dandy's wilson's current we can teachers or believable or whether it's prior statements before he actually defendant's gang before he had been in prison with the defense which one of those statements would be credible and certainly he found he found  of talking about fisher right and that's precisely why the difference in rivera was that we're very alike in our case required that the testimony to be truthful and again around us every single state in this country has found that agreement such as this precisely such as this to be valid and protecting the due process rights th or another was decided that was it was absolutely up to the idea see your honour's not only was that in the agreement but michael johnson himself because he was cross examined so thoroughly michael johnson himself knew that that was just a recommendation he knew that he wouldn't get his choice he knew it was up to department of corrections to make that determination in addition is part of that michael johnson in his in his testimony testified expressly that he knew that this plea agreement was not a certain thing he knew that this as you cannot divorce the truth from the consistency across in this case when you require a witness to testify consistently with prior statements and tell the witness that those statements are the truth you have violated a defendant's right to d process because you have scripted the testimony it is completely inaccurate that each of the jurisdictions that have permitted consistency clauses when the witness testifying was also required to tell the cases clearly reaffirm that squid testimony by a late steam process period and as your honor pointed out in it is accurate the determination of whether the specific plea agreement violates due process or is scripted is determined on a case by case basis for instance the case that the state relied on india china case and state versus bound in the tennessee decision both had consistency plea agreements that had language that was far less restrictive than the language in this particular case and johnson's plea agreement he was required by the words such truthful testimony shall be consistent with in the cooma decisions and in particular in the riviera decision the arizona case that the state recites the defendant himself a vowed that his statements were true as part of the language the language was defendant sh testify fully accurately in truthfully in any trial we try our defense an appeal regarding called defendants and then further defendant of barrels that all the facts stated by her regarding this case are fully accurately and truthfully stated it  was the defendant affirming the truthfulness the person testifying not the state dictating to that witness that the truth was the consistent statements but the prosecutors in this case could have eliminated army even to be here today by simply require no johnson tell the truth if it is true as the prosecution has stated today that the trial court just trial was fully aware of all of the varying statements that johnson had made there was no need to require him to testify consistently with those statements the prosecution could simply have required that johnson tell the truth period and that's all any court requests of a witness testifying giving benefits to witness to testify period the defense and that creates an imbalance in the criminal justice system just alone but setting that aside in this instance and in all cases when the prosecution requires that a witness testifies consistently that is when the prosecution interferes in the truth seeking function it is this is a different thing to be aware of what a witness is going to say versus dictating to the witness what to say the witness and even although this will not be a recommended course the witness can attest or about that what the witness is going to say is the truth that's different from the state requiring that witness to say those things will the record will we be able to tell from the record of this agreement in value we if we take a suspect from you have a plea agreement that simply says testify truthfully you have no problems with that you have a plea agreement that is testify consistently without reference to true certainly there are problems i think you indicated that in this case the states you have to testify consistently with this pretrial statement and that's the truth if the state had said and i don't know what the record would bear out of this if the stated said decimate the true thinking function so any one individual is completely a problem for due process and fair trials if the prosecution is not required to play fair been no trial will be fair and that is the problem and that is why this court must intervene to determine that consistency provisions and especially those even that require that a witness testify truthfully together with consistency when the wording of bad agreement dictates what is the truth that should not be condone that has no place in the criminal justice system that put us in the position in reviewing all future your dreams to see what a bargain is to be the way to avoid that is to stop the practice to permit witnesses to testify truthfully without being the benefit of incentives but even without requesting that this court make a determination on a case by case basis that the individual agreement is too good the court can do justice in this case and in doing justice in this case the court will inform and educate indetermined the limit of a prosecutor's ability to secure testimony that violates due process just your decision in this case will go miles to educate the prosecution about its limits in its methods and its authority to secure evidence against witnesses that is tainted and that is improper inviolate to the prosecution talked about the court having jurisdiction and clearly in this case there was no jurisdiction illinois law is clear you cannot enter into a plea agreement on charges that have already been decided no claim of revenge smith would ever invest the court with jurisdiction and jurisdiction of course is power the authority to act and in this case the trial court had northward to act in the prosecution had no already to enter into the agreement to deliver on the promises that it made on that agreement and specifically it did not have a right to dictate and script that testimony that convicted james bannister and it's so critical to note that this was the only direct evidence of james spanish guilt any claim to the contrary is completely a fallacy there was one witness before beyond a wilson that will witness was found to be a perjurer of that witness has been convicted of perjury and that this point there was no additional evidence but for that testimony that was born of that scripted text it testimony that johnson provided in this case as well the true language that the court should require of any witness testifying is that of truth period the relevance of the fourth amendment as the prosecution race is to provide direction to this court on what this court must do in correcting the injustice that occurred here the fourth amendment like other exclusionary provisions provide a judicially created mechanism whereby testimony that is inadmissible is excluded from consideration no conviction should rest on tainted scripted testimony as it did in this case and by using the lesson of the exclusionary rule that's been in existence for almost one hundred years this court has the tools that it needs to right the wrong done to james bannister in this