Why It's Tough to Take It Back

By Michael S. Serrill

Newspapers throughout the country recorded incredulity at a seemingly classic case of injustice. Tens of thousands of Illinois citizens signed protest petitions and inundated Governor James Thompson's office with phone calls, telegrams and letters. How, everyone wondered, could Cook County Judge Richard Samuels have done it? The judge, after allowing Convicted Rapist Gary Dotson a few days of freedom on bail, had then sent him back to prison, despite the fact that his supposed victim, Cathleen Crowell Webb, had retracted her accusation. But while most members of the legal community shared the public discomfort with the outcome of Dotson's case, they recognized that it rested on sound legal principles.

The courts have always regarded recanted testimony with suspicion, in part because there are too many bad reasons for witnesses to change their minds: intimidation, bribery, misplaced sympathy for an imprisoned or condemned offender. In addition, "there is a preference for finality," says Martin Guggenheim of New York University Law School. "The notion that a verdict can't be overturned based simply on more evidence is part of the American system of justice." Says Harvard's Alan Dershowitz: "The law has a stake in more than this case. It worries about the hundreds in prison who now may be inclined to have people retract testimony."

As a result, the burden of proof in recantation cases is on those challenging the conviction, and the decision of the judge rehearing evidence is virtually never second-guessed by appeals courts. After listening to Webb, 23, explain that she made up the kidnaping and rape eight years ago because she feared she was pregnant by her boyfriend, Judge Samuels weighed her statements against what he had heard at the 1979 trial. He concluded she was less believable now and seemed to have a "selective recollection" of events. As Samuels told a Chicago Sun-Times reporter last week, "Her demeanor was totally different."

The reversal of any conviction on the basis of recanted testimony alone is rare; there has never been one in Illinois. In Massachusetts three months ago, a judge overturned the 1974 first-degree-murder conviction of Black Panther Activist Frank ("Parky") Grace; a co-defendant and a witness had changed their testimony, but Grace's lawyers won because they also provided a wealth of new corroborating evidence. In a celebrated New Jersey murder case, a witness against former Middleweight Boxer Rubin ("Hurricane") Carter announced that he had lied at the original 1967 trial. Yet when the state's supreme court reversed the Carter conviction in 1976, it stated that it was not considering the recantation. (At the retrial, the witness changed his story back again, and Carter was reconvicted.)

"One of the safety valves for a problem like the Dotson case," says Guggenheim, "is the executive power to commute or pardon." Last week the inmate's lawyer started that process in Illinois. Dotson has already done nearly six years of his 25- to 50-year sentence, 16 months longer than the average Illinois rapist serves. Further bolstering Dotson's clemency bid, Webb's lawyer last week announced that his client had passed a lie-detector test with her new story. Even the man who was chief Cook County prosecutor when Dotson was convicted, Bernard Carey, believes he should be released. "The controversy is damaging the criminal justice sys tem," says Carey. Thompson apparently agrees: "We ought to dispose of the Dotson case as quickly as we can to maintain public confidence." --By Michael S. Serrill. Reported by Raji Samghabadi/New York and Don Winbush/Chicago

With reporting by Reported by Raji Samghabadi/New York, Don Winbush/Chicago