Report of the Governor’s Commission on Capital Punishment

Editors' Note: On April 15, 2002, the long-awaited Report of the Governor's Commission on Capital Punishment was released. The Report and its recommendations cover the gamut of the criminal justice system, from the initial police investigation through the charging function, the defense, the trial, the appeals process and the option of granting clemency.

In response to the Report, both chambers of the Illinois General Assembly held hearings around the State this summer on the death penalty system, accepting testimony on the Report and its recommendations. Among those groups testifying on the Report were the Illinois State's Attorneys Association (hereinafter referred to as the ISAA), the Illinois State Bar Association (hereinafter referred to as the ISBA) and the Illinois Public Defender's Association. A summary of the Report, its recommendations and the positions taken by the ISAA and the ISBA on the recommendations are set forth below. (Although the Public Defender's Association was invited to share its position on the recommendations, as this issue of the newsletter was sent to print, no information had been received. Upon the receipt of the Public Defender's Association's positions on the recommendations, every effort will be made to include that information in a future issue of the newsletter).

On August 23, 2002, Illinois Governor George H. Ryan placed an amendatory veto on House Bill 2058 which amended, inter alia, the Criminal Code of 1961, the Solicitation for Charity Act, the Firearm Owners Identification Card Act, the Code of Criminal Procedure of 1963, the Boarding Aircraft with Weapon Act, the State Wide Grand Jury Act, the Unified Code of Corrections and the Charitable Trusts Act with respect to investigating and punishing acts of terrorism. Specifically, House Bill 2058 amends section 9-1 of the Criminal Code of 1961 (720 ILCS 5/9-1 (West 2000)) to allow the death penalty to be considered for a first-degree murder committed as a result of or in connection with a "terrorism" offense.

Provoked by the General Assembly's expansion of the death penalty eligibility factors to include terrorist acts and the General Assembly's failure to address comprehensive death penalty reform during the spring 2002 legislative session, the Governor proposed " ... an amendatory veto of House Bill 2058 to include changes in the death penalty system that ... will help keep Illinois' death penalty statutes constitutional, address technical flaws in the system and begin restoring public confidence in our justice system..." Many of the proposed reforms are based upon the recommendations from the Report of the Governor's Commission on Capital Punishment. (A notation has been added to the summaries of those recommendations the Governor has included in his amendatory veto of House Bill 2058). The General Assembly is scheduled to review the Governor's proposed changes during its fall veto session in November.

If you would like to review the full Report and its technical appendix, you may do so at: <http://www.idoc.state. il.us/ccp/>. If you would like to review House Bill 2058 and the Governor's amendatory veto, see: <http://www. legis.state.il.us>.

Chapter 1--Members of the Governor's Commission on Capital Punishment

Judge Frank McGarr, Chairman

Now in private practice with a focus on mediation and arbitration, Judge McGarr served as a federal prosecutor and as the First Assistant Illinois Attorney General before spending 18 distinguished years on the federal bench. He served as Chief Judge of the Federal District Court for the Northern District of Illinois between 1981 and 1986.

Senator Paul Simon, Co-Chair

Senator Simon has served the people of Illinois with distinction, both as a member of the Illinois General Assembly and the United States Congress. Since he retired from the United States Senate in 1997, Senator Simon has been a professor at Southern Illinois University and Director of its Public Policy Institute.

Thomas P. Sullivan, Co-Chair

An accomplished litigator, Mr. Sullivan served as United States Attorney for the Northern District of Illinois from 1977 to 1981. Currently in private practice at Jenner & Block, he is often called upon to lend his legal expertise, judgment and leadership on public interest committees.

Deputy Governor Matthew R. Bettenhausen, Member and Executive Director

Mr. Bettenhausen currently serves as the Deputy Governor for Criminal Justice and Public Safety. A former Assistant United States Attorney in the Northern District of Illinois, he last served as the Associate Chief of the Criminal Division. State agencies reporting to him as Deputy Governor include the Illinois State Police, the Illinois Department of Corrections, the Illinois Criminal Justice Information Authority, the Office of the State Fire Marshal, and the Law Enforcement Training Board, among others.

Kathryn Dobrinic, Member

Ms. Dobrinic served for 12 years as the elected State's Attorney for Montgomery County. Having practiced law in central Illinois for more than 20 years, Ms. Dobrinic served as the public defender in Christian County and has also worked in private practice.

Rita Fry, Member

An award-winning attorney, Ms. Fry is the Public Defender of Cook County, Illinois. The Office of the Cook County Public Defender is the second largest public defender's office in the nation, with more than 500 attorneys providing indigent defense service in the largest county in the State.

Theodore Gottfried, Member

Mr. Gottfried is the State Appellate Defender of the State of Illinois and has held the office since 1972. The office of the State Appellate Defender is responsible for providing appellate level and post-conviction indigent legal services throughout the State. With more than 140 attorneys state-wide, Mr. Gottfried's office also provides advice and counsel to capital defense attorneys.

Donald Hubert, Member

Mr. Hubert is a Fellow of the International Academy of Trial Lawyers and the American College of Trial Lawyers. A well-respected litigator, he has represented defendants in murder cases as well as police officer defendants in civil police brutality cases. He serves by appointment of the Illinois Supreme Court as Chairman of the Court's Committee on Professional Responsibility and is a former president of the Chicago Bar Association. He has devoted significant efforts to various charitable efforts, including Chairman of the Board of Trustees of Hales Franciscan High School.

William J. Martin, Member

During his tenure as a prosecutor in the Cook County State's Attorney's office, Mr. Martin is well-known as the man who prosecuted Richard Speck. He also has extensive experience as a criminal defense lawyer, and is well-acquainted with the capital punishment system. His sub-specialty is legal ethics, and he has defended hundreds of lawyers in Illinois disciplinary proceedings.

Thomas Needham, Member

Now in private practice with the firm of Baird & Needham, Mr. Needham most recently served as the Chief of Staff for Chicago Police Superintendent Terry Hillard. Before joining the Superintendent's office, Mr. Needham was a policy advisor to Mayor Daley on public safety issues and a veteran Cook County prosecutor.

Roberto Ramirez, Member

Mr. Ramirez is founder and president of Tidy International, a janitorial and custodial company which is one of the fastest growing Hispanic-owned companies in the United States. He immigrated to the United States as a young boy with his widowed mother and eight siblings. In 1996, he founded the Jesus Guadalupe Foundation in honor of his parents, as a means to financially assist Latino students in their pursuit of higher education.

Scott Turow, Member

A partner with Sonnenschein Nath & Rosenthal, Mr. Turow is probably better known across the world as a best-selling author of legal novels. Mr. Turow served as an Assistant United States Attorney in the Northern District of Illinois for several years before entering private practice.

Mike Waller, Member

The elected State's Attorney of Lake County, Illinois, Mr. Waller is a veteran trial lawyer and prosecutor. The Lake County State's Attorney's office is the third largest prosecutor's office in the State.

Andrea Zopp, Member

A successful corporate lawyer, Ms. Zopp has also been a criminal defense lawyer, and formerly served as First Assistant State's Attorney in Cook County. She is also a former Assistant United States Attorney in the Northern District of Illinois.

Judge William H. Webster, Special Advisor to the Commission

A senior partner with the Washington law firm of Milbank, Tweed, Hadley and McCloy, Judge Webster has served as the director of the CIA and FBI. He has also served as a Judge of the U.S. Court of Appeals for the Eighth Circuit, a U.S. District Court Judge and as a federal prosecutor in Missouri.

Chapter 2--Police and Pretrial Investigations

This chapter recommends improvements to police practices and pretrial investigative efforts that would strengthen the confidence in the ultimate outcome of a capital case. Police agencies and prosecutors are the first to respond to homicides, and the recommendations in this section are intended to bolster early efforts to identify the right suspect and to insure that evidence is carefully preserved. Recommendations in this chapter include improvements to the methods used to document evidence collected by law enforcement agencies, suggestions for documenting custodial interrogations by police, and changes to the methods used to conduct lineups in which suspects are identified by witnesses. The Commission has also recommended insuring that indigent defendants can obtain representation by public defenders during the custodial interrogation process, which should ameliorate some concerns about undue influence during those interrogations. Improving law enforcement training, especially in the area of notification of consular access rights, has also been suggested.

Recommendation 1:

A formal state-wide policy should be adopted which provides that "After a suspect has been identified, the police should continue to pursue all reasonable lines of inquiry, whether these point toward or away from the suspect."

ISAA: The ISAA agrees that good police work requires that all leads are investigated and all potential evidence is gathered as soon as possible. However, because the Commission has failed to identify what remedial measures, if any, would be taken for the failure to satisfy this guideline in a particular case, the ISAA believes further clarification is necessary.

ISBA: Support.

Recommendation 2:

(a) The police must list on schedules all existing items of relevant evidence, including exculpatory evidence, and their location.

(b) Record-keeping obligations must be assigned to specific police officers or employees, who must certify their compliance in writing to the prosecutor.

(c) The police must give copies of the schedules to the prosecution.

(d) The police must give the prosecutor access to all investigatory materials in their possession.

ISAA: The ISAA supports this proposal, which is contained in a pending legislative initiative of the DuPage County State's Attorney's Office (Senate Bill 2023) and which would assist prosecutors in complying with their disclosure obligations under the Constitution and Supreme Court Rules.

ISBA: Support in principle. Review details later.

Recommendation 3:

In a death eligible case, representation by the public defender during a custodial interrogation should be authorized by the Illinois Legislature when a suspect requests the advice of counsel, and where there is a reasonable belief that the suspect is indigent. To the extent that there is some doubt about the indigency of the suspect, police should resolve the doubt in favor of allowing the suspect to have access to the public defender.

ISAA: Current constitutional law protects the defendant's right to counsel and provides a remedy should this right be disrespected by law enforcement. Creating additional rights to immediate representation by public defenders for suspects whenever they are taken into custody is unnecessary. This recommendation should be opposed until it is determined how this expansion of the Public Defender's Office will promote the truth finding process, how it will impact the ability of police to conduct investigations in the station house, and how it can be administered without disqualifying the public defender in a conflict of interest every time a second suspect is taken into custody. This lawyer-friendly proposal is not necessarily suspect-friendly, never mind justice-friendly.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 4:

Custodial interrogations of a suspect in a homicide case occurring at a police facility should be videotaped. Videotaping should not include merely the statement made by the suspect after interrogation, but the entire interrogation process.

ISAA: The ISAA agrees with the Commission minority report, which said that video recorded interrogations should be "strongly encouraged." In fact, many members of the ISAA have previously called for the creation of pilot programs to determine the feasibility of recording interrogations in their entirety. However, any attempt to mandate such a system would be impractical because in the early stages of the investigation, the police do not always have a clear idea as to what occurred and do not know whether particular individuals are witnesses or suspects. To comply with a mandatory requirement, law enforcement personnel will be required to videotape nearly every interview because the investigation may ultimately lead to a murder charge, thereby dramatically slowing down the investigation with potentially dangerous consequences. This is one of many practical difficulties which can only be addressed with additional experience. The Commission implicitly recognizes the good sense of the minority report, by qualifying its mandate to situations where it is "practicable." This qualification begs the question (or starts a courtroom argument) concerning what is practicable. We will not learn how to promote the best practices without the vigorous experimentation and development the ISAA has been encouraging.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 5:

Any statements by a homicide suspect which are not recorded should be repeated to the suspect on tape, and his or her comments recorded.

ISAA: The trial system enables judges and juries to determine if police officers testify truthfully regarding a defendant's oral statement, and there is no need to require the police to have the suspect repeat or confirm a statement twice, three times or more, although such a practice should not be discouraged. The Commission also ignores the fact that there are constitutional limitations on whether an officer can resume questioning and this practice would be prohibited where the defendants reconsider their decision to talk or where they request counsel.

ISBA: Support as long as circumstances make it practicable except when defendant makes a request for counsel or invokes his or her rights under the Fifth Amendment.

Recommendation 6:

There are circumstances in which videotaping may not be practical, and some uniform method of recording such interrogations, such as tape recording, should be established. Police investigators should carry tape recorders for use when interviewing suspects in homicide cases outside the station, and all such interviews should be audiotaped.

ISAA: Because it is necessary to safeguard the ability of the police to solve crime and protect the public from criminal behavior, the ISAA disagrees with this proposal because it may delay investigation and hinder crime solving. Again, the question of best practice is distinct from the issue of what minimal practice should always be required. The practicality of this proposal cannot be assessed without the experience and consultation of police professionals.

ISBA: Support when practicable.

Recommendation 7:

The Illinois Eavesdropping Act (720 ILCS 5/14-1 et seq.) should be amended to permit police taping of statements without the suspect's knowledge or consent in order to enable the video taping and audiotaping of statements as recommended by the Commission. The amendment should apply only to homicide cases, where the suspect is aware that the person asking the questions is a police officer.

ISAA: The ISAA agrees with this proposal because non-consensual recording is compatible with the call for the creation of pilot programs. However, because police investigations do not always start out as murder investigations, the ISAA suggests that the exception be expanded to include other serious crimes, possibly even all felonies. Also, because prosecutors in various counties also interview suspects, any exemption should also include situations where the suspect is aware that the person conducting the interview is a prosecutor.

ISBA: Support. The Illinois Eavesdropping Act should be reviewed if Recommendations 4, 5, and 6 become law to determine what amendments may be necessary to conform the Act to these three recommendations.

Recommendation 8:

The police should electronically record interviews conducted of "significant witnesses" in homicide cases "where it is reasonably foreseeable that their testimony may be challenged at trial."

ISAA: Because police are not in a position to determine which witnesses are "significant" or if their testimony is likely to be challenged at trial, and because witnesses may refrain from speaking to the police if they are to be recorded, the ISAA is concerned that this recommendation will interfere with the police ability to investigate serious crime. However, because the Commission seems to recognize these concerns and states that its recommendation is "purposefully stated in general terms" and that "[i]ts implementation will require further study and consultation with prosecutors and police officials," the ISAA supports this recommendation as a theory to be tested and a goal to be implemented if practicable.

ISBA: Support but delete the clause "where it is reasonably foreseeable that their testimony may be challenged at trial" and replace with the phrase "when practicable."

Recommendation 9:

Police should be required to make a reasonable attempt to determine the suspect's mental capacity before interrogation, and if a suspect is determined to be mentally retarded, the police should be limited to asking nonleading questions and prohibited from implying that they believe the suspect is guilty.

ISAA: The ISAA disagrees with this proposal because police officers are not qualified to determine a person's mental capacity. Also, constitutional law already requires the suppression of any statement where the defendant was incapable of understanding what his rights encompassed and what their waiver entailed.

ISBA: Oppose. The recommendation is well-intentioned, but we do not think it is practical. Doctors who are trained to make these decisions have difficulty in determining the mental capacity of suspects--is it really fair to require untrained law enforcement officers to make this kind of decision? Specifically, lawyers use leading questions--so do police officers. There is a time and place for leading questions as an investigative tool. We also agree with the Illinois State's Attorneys' Association comments that constitutional law already allows a trial judge to suppress the statement of a defendant who is incapable of understanding what his or her rights are and what a waiver of them means.

Recommendation 10:

When practicable, police departments should insure that the person who conducts the lineup or photospread spread should not be aware of which member of the lineup or photospread spread is the suspect.

ISAA: Although police and prosecutors are always looking to improve identification procedures, the ISAA believes that any attempt to impose a particular method represents an unprecedented, unnecessary and uninformed intrusion into the police process. Constitutional law currently provides that if an identification procedure is improperly suggestive, that identification may not be utilized at trial. Moreover, requiring that police officers unfamiliar with the investigation conduct the identification process will unnecessarily delay the time until the defendant can be formally charged or released if he is not identified, thereby posing an increased risk to the public as the actual offender is still at large. Finally, because many smaller communities across the State may not have the requisite number of photographs or live individuals similar in appearance to the suspect in order to comply with the requirements, those police agencies will be unable to conduct the identification procedures in a timely fashion, potentially interfering with the suspect's constitutional right to be brought before a judge within 48 hours of arrest.

ISBA: Oppose. This recommendation was opposed by the [ISBA's] Committee for different reasons. Although well-intentioned, some of our members thought it was burdensome micromanaging to remove one officer from an investigation so that he or she would not know the identity of the suspect. And, in many communities and station houses, what officer will not know the identity of the suspect in a homicide case? Other members of our Committee thought that because all the officers will know the identity of the suspect, why put them in the artificial and unfair position of denying the obvious?

Recommendation 11:

(a) Eyewitnesses should be told explicitly that the suspected perpetrator might not be in the lineup or photospread, and therefore they should not feel that they must make an identification.

(b) Eyewitnesses should also be told that they should not assume that the person administering the lineup or photospread knows which person is the suspect in the case.

ISAA: (a) and (b). This recommendation restates current police practice, and the ISAA supports continuation of the practice.

ISBA: (a) Support. (b) Support.

Recommendation 12:

If the administrator of the lineup does not know who the suspect is, a sequential procedure should be used, so that the eyewitness views only one lineup member at a time and makes a decision (that is the perpetrator or that is not the perpetrator) regarding each person before viewing another lineup member.

ISAA: The ISAA agrees with the [Commission] minority [report] that it is inappropriate to mandate a particular procedure which has not yet been tested or approved by the courts. However, the ISAA supports the ability of individual police departments to experiment with different procedures to determine if sequential procedures are more effective.

ISBA: Oppose. This recommendation sparked some debate about the virtues and vices of using sequential lineups or photospreads. If you read the commentary in Recommendation No. 12 in the Commission's Report, however, it quotes the proponents [of this recommendation as stating] that "...the adoption of sequential lineups without the adoption of double-blind testing ... might be worse than using simultaneous lineups without double-blind testing." Therefore, the [ISBA's] Committee decided that because we did not support Recommendation No. 10, we could not support Recommendation No. 12 because No. 10 assumes that the officer conducting the lineup does not know the identity of the suspect.

Recommendation 13:

Suspects should not stand out in the lineup or photospread as being different from the distractors, based on the eyewitnesses' previous description of the perpetrator, or based on other factors that would draw attention to the suspect.

ISAA: This recommendation restates current practice which the ISAA supports.

ISBA: Support.

Recommendation 14:

A clear written statement should be made of any statements made by the eyewitness at the time of the identification procedure as to his or her confidence that the identified person is or is not the actual culprit. This statement should be recorded prior to any feedback by law enforcement personnel.

ISAA: The ISAA agrees that police should record any statement made by a witness indicating his or her confidence in an identification. However, it must be pointed out that police are not barometers of witness confidence and should not be expected to make their own evaluations. Also, the ISAA is concerned that some witnesses may refuse to take part in an identification procedure if they are required to sign and date a police report indicating their confidence in the identification.

ISBA: Support.

Recommendation 15:

When practicable, the police should videotape lineup procedures, including the witness' confidence statement.

ISAA: The ISAA disagrees with this proposal because it is extremely impractical since it would require three separate cameras, one on the participants in the lineup, one on the witness and one on the officer conducting the procedure. More importantly, however, such a requirement could have a chilling effect on law enforcement because witnesses refuse to be videotaped out of a fear of reprisal. Also, this proposal fails to recognize the particular sensitivities of crime victims, especially rape victims. Nevertheless, the ISAA supports the ability of individual police departments to experiment with different procedures.

ISBA: Support.

Recommendation 16:

All police who work on homicide cases should receive periodic training in the following areas, and experts on these subjects should be retained to conduct training and prepare training manuals on these topics:

1. The risks of false testimony by in-custody informants ("jailhouse snitches").

2. The risks of false testimony by accomplice witnesses.

3. The dangers of tunnel vision or confirmatory bias.

4. The risks of wrongful convictions in homicide cases.

5. Police investigative and interrogation methods.

6. Police investigating and reporting of exculpatory evidence.

7. Forensic evidence.

8. The risks of false confessions.

ISAA: The ISAA agrees with this proposal, as it has long believed that additional training improves the criminal justice system and helps make the exclusion of evidence unnecessary.

ISBA: Support.

Recommendation 17:

Police academies, police agencies and the Illinois Department of Corrections should include within their training curricula information on consular rights and the notification obligations to be followed during the arrest and detention of foreign nationals.

ISAA: The ISAA agrees with this proposal since it would help eliminate future problems in cases where foreign nationals are prosecuted.

ISBA: Support.

Recommendation 18:

The Illinois Attorney General should remind all law enforcement agencies of their notification obligations under the Vienna Convention on Consular Relations and undertake regular reviews of the measures taken by State and local police to ensure full compliance. This could include publication of a guide based on the U.S. State Department manual.

ISAA: The ISAA agrees with this proposal since it would help eliminate future problems in cases where foreign nationals are prosecuted.

ISBA: Support.

Recommendation 19:

The statute relating to the Illinois Law Enforcement Training and Standards Board (50 ILCS 705/6.1a) should be amended to add police perjury (regardless of whether there is a criminal conviction) as a basis upon which the Board may revoke certification of a peace officer.

ISAA: The ISAA believes that this proposal reflects a misunderstanding of the Illinois Law Enforcement Training and Standards Board's function and points out that the proposal is unnecessary since a conviction for perjury will automatically result in decertification.

ISBA: Support.

Chapter 3 -DNA and Forensic Testing

This Chapter discusses the important issue of forensic testing. Advances in science now provide law enforcement agencies with an unparalleled opportunity to conclusively identify those suspected of having committed crimes where biological evidence exists. DNA and other forensic testing has revolutionized the investigation of crime in just the last 5 years. The Commission has recommended in this Chapter that the State undertake significant improvements related to its forensic laboratories, establish and fund a comprehensive DNA database, enable defendants to access that database in appropriate cases, and support adequate funding for DNA and other forensic testing in capital cases.

Recommendation 20:

An independent State forensic laboratory should be created, operated by civilian personnel, with its own budget, separate from any police agency or supervision.

ISAA: The ISAA agrees with the [Commission] minority view that an independent lab would be an unnecessary expense and that a better proposal than creating yet another State agency would be the creation of a permanent and adequately funded "defense scientific services center" whereby defendants and defense counsel would have access to truly independent forensic scientists for consultation and review without requiring the intervention of courts or the agreement of prosecutors.

ISBA: Oppose. Although our [ISBA] Committee supported the rationale behind this recommendation, we acknowledge the political and turf problems with making it happen. A better way to achieve the goal of the recommendation is to ensure that the State's existing forensic lab is certified by impartial experts not affiliated with the lab and require blind-testing of the lab's work to ensure the highest quality control.

Recommendation 21:

Adequate funding should be provided by the State of Illinois to hire and train both entry level and supervisory level forensic scientists to support expansion of DNA testing and evaluation. Support should also be provided for additional up-to-date facilities for DNA testing. The State should be prepared to outsource by sending evidence to private companies for analysis when appropriate.

ISAA: The ISAA agrees with this proposal since it will reduce the time for DNA testing.

ISBA: Support.

Recommendation 22:

The Commission supports Supreme Court Committee Rule 417, establishing minimum standards for DNA evidence.

ISAA: This recommendation restates current law, which the ISAA supports.

ISBA: Support.

Recommendation 23:

The Federal government and the State of Illinois should provide adequate funding to enable the development of a comprehensive DNA database.

ISAA: Support.

ISBA: Support.

Recommendation 24:

Illinois statutes should be amended to provide that in capital cases a defendant may apply to the court for an order to obtain a search of the DNA database to identify others who may be guilty of the crime.

ISAA: Support.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 25:

In capital cases, forensic testing, including DNA testing pursuant to 725 ILCS 5/116-3, should be permitted where it has the scientific potential to produce new, noncumulative evidence relevant to the defendant's assertion of actual innocence, even though the results may not completely exonerate the defendant.

ISAA: This recommendation restates current law (People v. Savory, 197 Ill. 2d 203, 756 N.E.2d 804 (2001)), which the ISAA supports.

ISBA: Support.

Recommendation 26:

The provisions governing the Capital Litigation Trust Fund should be construed broadly

so as to provide a source of funding for forensic testing pursuant to 725 ILCS 5/116-3 when the defendant faces the possibility of a capital sentence. For non-capital defendants, provisions should be made for payment of costs of forensic testing for indigents from sources other than the Capital Litigation Trust Fund.

ISAA: Support.

ISBA: Support.

Chapter 4 - Eligibility for Capital Punishment

Not every first degree murder case is eligible for the death penalty. This Chapter addresses the issue of how eligibility for the death penalty should be determined. The United States Supreme Court requires that states narrow the potential class of those eligible for capital punishment by adoption of statutes that apply the death penalty to only some, but not all murders. The Commission recommends substantial revision to the factors that enable the State to seek the death penalty. Members of the Commission unanimously agreed that the list of 20 eligibility factors existing under Illinois law should be reduced, and a majority of members favor limiting death eligibility to just five well-defined factors. While Commission members believe that all murders are very serious, the death penalty should be reserved for only the most heinous of these crimes.

Recommendation 27:

The current list of 20 eligibility factors should be reduced to a smaller number.

ISAA: While many observers believe that the current list of factors is too long and redundant in certain instances, this is a legislative decision. The amendment to the statute must be based upon a deliberate and informed review of the issues by the legislature.

ISBA: Support.

Recommendation 28:

There should be only five eligibility factors: (1) the murder of a peace officer or firefighter killed in the performance of his/her official duties, or to prevent the performance of his/her official duties, or in retaliation for performing his/her official duties; (2) the murder of any person (inmate, staff, visitor, etc.), occurring at a correctional facility; (3) the murder of two or more persons as set forth in 720 ILCS 5/9-1(b)(3), as that provision has been interpreted by the Illinois Supreme Court; (4) the intentional murder of a person involving the infliction of torture; and (5) the murder by a person who is under investigation for or who has been charged with or has been convicted of a crime which would be a felony under Illinois law, of anyone involved in the investigation, prosecution or defense of that crime, including, but not limited to, witnesses, jurors, judges, prosecutors and investigators.

ISAA: The Commission's proposal to eliminate fifteen of the statute's 20 eligibility factors demonstrates the need for a full and informed consideration of these issues by the legislature. A full debate may cause many to reconsider the wisdom of the Commission's recommendations to exempt some of the most dangerous, heinous killers from the death penalty, including killers of the elderly, disabled and children, felony murderers and contract killers for hire.

ISBA: Support. Although we agree with the Governor's Commission that the number of eligibility factors must be reduced, it is obvious that the contentious debate over which factors should be eliminated and which should remain could go on forever. The Governor's Commission has taken as thoughtful a position on this effort as anyone could ask to begin the debate.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Chapter 5--Prosecutors' Selection of Cases for Capital Punishment

This Chapter focuses on the responsibility of the prosecutor to select cases in which capital punishment will be sought. Existing Illinois statutes grant broad discretion to the State's Attorney of an individual county on the question of whether or not to pursue capital punishment. The Commission unanimously recommends that voluntary state-wide standards be adopted by prosecutors in Illinois to identify when capital punishment will be sought in a particular case. A majority of Commission members believe that a mandatory, state-wide review of prosecutorial decisions about whether to seek capital punishment should be instituted. Commission members unanimously support the recently-adopted Supreme Court rules which require the prosecutor to give notice to the defendant within 120 days of the State's intention to seek the death penalty.

Recommendation 29:

The Illinois Attorney General and the Illinois State's Attorneys Association should adopt recommendations as to the procedures State's Attorneys should follow in deciding whether or not to seek the death penalty, but these recommendations should not have the force of law, or be imposed by court rule or legislation.

ISAA: The ISAA agrees with this proposal and has already begun preparing a state-wide protocol for use by all of its members.

ISBA: Support.

Recommendation 30:

The death penalty sentencing statute should be amended to require the approval of a state-wide review committee before any State's Attorney may seek death. The state-wide review committee would be composed of five members, four of whom would be prosecutors. The committee would develop standards to implement the legislative intent of the General Assembly with respect to death eligible cases.

ISAA: This recommendation overturns the constitutional role of the State's Attorney as the chief prosecutor for each county in Illinois. This reform would turn over the prosecutor's role to a commission, which would include one non-prosecutor not bound by the ethical rules governing prosecutors. This recommendation would add a procedural roadblock in the death penalty system, but interposing a State commission of political appointees does nothing to promote justice in individual cases. This would also reverse the entire direction of reform that has been urged by the defense bar--the speedy determination whether to seek death in a case. This recommendation could not be implemented with current Supreme Court rules requiring speedy screening decisions. This recommendation is also incompatible with the great body of responsible Commission recommendations which otherwise promote the best practices of prosecutors and defense attorneys instead of bypassing the trial system. The ISAA finds it singularly telling that the Commission, which included 13 lawyers and one lawmaker, provided no commentary on the need to amend the Illinois Constitution to achieve this recommendation.

ISBA: Support.

Recommendation 31:

The Commission supports Supreme Court Rule 416(c), requiring that the State announce its intention to seek the death penalty, and the factors to be relied upon, as soon as practicable but in no event later than 120 days after arraignment.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: We support the principle of this recommendation but do note that this Rule has caused unforeseen problems that merit further study by the Supreme Court of Illinois.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Chapter 6--Trial Judges

Trial judges play an important role in the capital punishment system by insuring the fairness of proceedings for all parties. The Commission unanimously adopted the recommendations in this Chapter, which should result in more effective management of capital cases. Recommendations include supporting improvements to training opportunities for trial judges hearing capital cases, insuring that trial judges have access to the most current information on developing case law on capital punishment, improving research support for trial judges, and a state-wide resource committee for judges hearing capital cases.

Recommendation 32:

The Illinois Supreme Court should give consideration to encouraging the Administrative Office of the Illinois Courts to undertake a concerted effort to educate trial judges throughout the State in the parameters of the Capital Crimes Litigation Act and the funding sources available for defense of capital cases.

ISAA: The ISAA supports this proposal. The ISAA has long promoted the principle that additional training improves the criminal justice system.

ISBA: Support.

Recommendation 33:

The Commission supports the provisions of new Illinois Supreme Court Rule 43 (which took effect March 1, 2001) as to "Seminars on Capital Cases." The Illinois Supreme Court should be encouraged to undertake more action as outlined in this report to insure the highest quality training and support are provided to any judge trying a capital case.

The Commission also supports the revised Committee Comments to new Supreme Court Rule 43, which contemplate that capital case training will occur prior to the time a judge hears a capital case. The Supreme Court should be encouraged to consider going further and requiring that judges be trained before presiding over a capital case.

ISAA: The ISAA agrees with this proposal in principle, but points out that in counties with only one or two judges, it may interfere with the parties' ability to bring the matter to trial in a timely fashion.

ISBA: Support.

Recommendation 34:

In light of the changes in Illinois Supreme Court rules governing the discovery process in capital cases, the Supreme Court should give consideration to ways the Court can insure that particularized training is provided to trial judges with respect to implementation of the new rules governing capital litigation, especially with respect to the management of the discovery process.

ISAA: Support.

ISBA: Support.

Recommendation 35:

All judges who are trying capital cases should receive periodic training in the following areas, and experts on these subjects should be retained to conduct training and prepare training manuals on these topics:

1. The risks of false testimony by in-custody informants ("jailhouse snitches").

2. The risks of false testimony by accomplice witnesses.

3. The dangers of tunnel vision or confirmatory bias.

4. The risks of wrongful convictions in homicide cases.

5. Police investigative and interrogation methods.

6. Police investigating and reporting of exculpatory evidence.

7. Forensic evidence.

8. The risks of false confessions.

ISAA: The ISAA agrees with this proposal, but points out that care must be taken to ensure that the curriculum is balanced and does not promote bias against any particular categories of competent evidence.

ISBA: Support.

Recommendation 36:

The Illinois Supreme Court, and the Administrative Office of the Illinois Courts should consider development of and provide sufficient funding for state-wide materials to train judges in capital cases, and additional staff to provide research support.

ISAA: Support.

ISBA: Support.

Recommendation 37:

The Illinois Supreme Court should consider ways in which information regarding relevant case law and other resources can be widely disseminated to those trying capital cases, through development of a digest of applicable law by the Supreme Court and wider publication of the outline of issues developed by the State Appellate Defender or the State Appellate Prosecutor and/or Attorney General.

ISAA: Support.

ISBA: Support.

Recommendation 38:

The Illinois Supreme Court, or the chief judges of the various judicial districts throughout the State, should consider implementation of a process to certify judges who are qualified to hear capital cases either by virtue of experience or training. Trial court judges should be certified as qualified to hear capital cases based upon completion of specialized training and based upon their experience in hearing criminal cases. Only such certified judges should hear capital cases.

ISAA: The ISAA agrees in principle with this recommendation, but notes the need to avoid administrative problems in smaller counties with fewer judges available for certification.

ISBA: Support.

Recommendation 39:

The Illinois Supreme Court should consider appointment of a standing committee of trial judges and/or appellate justices familiar with capital case management to provide resources to trial judges throughout the State who are responsible for trying capital cases.

ISAA: Support.

ISBA: Support.

Chapter 7--Trial Lawyers

This Chapter concerns recommendations which pertain to trial counsel. Recent changes in the Supreme Court Rules regarding the development of a capital trial bar have changed the qualifications required of capital counsel. The Commission unanimously supports the suggested rule changes establishing these requirements, as well as supporting improved training and funding of counsel trying capital cases.

Recommendation 40:

The Commission supports new Illinois Supreme Court Rule 416(d) regarding qualifications for counsel in capital cases.

ISAA: This recommendation restates the current law which the ISAA supports. The ISAA also notes that Illinois is the only state which requires particular qualifications for prosecutors in capital cases in addition to defense attorneys. This reform should promote much greater confidence in our trial system.

ISBA: Support.

Recommendation 41:

The Commission supports new Illinois Supreme Court Rule 701(b) which imposes the requirement that those appearing as lead or co-counsel in a capital case be first admitted to the Capital Litigation Bar under Rule 714.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Recommendation 42:

The Commission supports new Illinois Supreme Court Rule 714 which imposes requirements on the qualifications of attorneys handling capital cases.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Recommendation 43:

The office of the State Appellate Defender should facilitate the dissemination of information with respect to defense counsel qualified under the proposed Supreme Court process.

ISAA: Support.

ISBA: Support.

Recommendation 44:

The Commission supports efforts to have training for prosecutors and defenders in capital litigation, and to have funding provided to insure that training programs continue to be of the highest quality.

ISAA: Support.

ISBA: Support.

Recommendation 45:

All prosecutors and defense lawyers who are members of the Capital Trial Bar who are trying capital cases should receive periodic training in the following areas, and experts on these subjects should be retained to conduct training and prepare training manuals on these topics:

1. The risks of false testimony by in-custody informants ("jailhouse snitches").

2. The risks of false testimony by accomplice witnesses.

3. The dangers of tunnel vision or confirmatory bias.

4. The risks of wrongful convictions in homicide cases.

5. Police investigative and interrogation methods.

6. Police investigating and reporting of exculpatory evidence.

7. Forensic evidence.

8. The risks of false confessions.

ISAA: The ISAA agrees with this proposal as it has long believed that additional training improves the overall ability of the criminal justice system to determine truth and avoids promoting any ideological bias against any professions or competent evidence.

ISBA: Support.

Chapter 8--Pretrial proceedings

This Chapter addresses matters that arise before the guilt and innocence phase of a trial begins. The Illinois Supreme Court has recently adopted new rules governing certain pre-trial proceedings in capital cases. The Commission unanimously supports many of these recommendations, and has also unanimously recommended other changes in pretrial proceedings which should improve the search for truth and the fairness of capital litigation. In addition to its support for these rule changes, the Commission recommends that the Court adopt a definition of "exculpatory evidence," require prosecutors (and others) to disclose to the defense benefits conferred upon or promised to a witness, implement new pre-trial proceedings to assess the credibility of in-custody informants, and closely scrutinize police tactics during interrogation in determining the voluntariness of confessions.

Recommendation 46:

The Commission supports new Illinois Supreme Court Rule 416(e) which permits discovery depositions in capital cases with leave of the court for good cause.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 47:

The Commission supports the provisions of new Illinois Supreme Court Rule 416(f) mandating case management conferences in capital cases. The Illinois Supreme Court should consider adoption of a rule requiring a final case management conference in capital cases to insure that there has been compliance with the newly mandated rules, that discovery is complete and that the case is fully prepared for trial.

ISAA: This recommendation restates current law which the ISAA supports. Also, the ISAA points out that although Rule 416(f) currently leaves the availability of a final case management conference to the discretion of the judge, many trial judges already require them as a matter of course.

ISBA: Support.

Recommendation 48:

The Commission supports Illinois Supreme Court Rule 416(f), which requires that a certificate be filed by the State indicating that a conference has been held with all those persons who participated in the investigation or trial preparation of the case, and that all information required to be disclosed has been disclosed.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Recommendation 49:

The Illinois Supreme Court should adopt a rule defining "exculpatory evidence" in order to provide guidance to counsel in making appropriate disclosures. The Commission recommends the following definition:

Exculpatory information includes, but may not be limited to, all information that is material and favorable to the defendant because it tends to:

 

(1) Cast doubt on defendant's guilt as to any essential element in any count in the indictment or information;

(2) Cast doubt on the admissibility of evidence that the State anticipates offering in its case-in-chief that might be subject to a motion to suppress or exclude;

(3) Cast doubt on the credibility or accuracy of any evidence that the State anticipates offering in its case-in-chief; or

(4) Diminish the degree of the defendant's culpability or mitigate the defendant's potential sentence.

 

ISAA: This proposal is unnecessary because Supreme Court Rule 412(c) currently includes the classic definition of exculpatory evidence, "any material or information ... which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce his punishment therefor." The Rule also requires the disclosure of such evidence.

ISBA: Support in principle but recognize difficulties in implementation.

Recommendation 50:

Illinois law should require that any discussions with a witness or the representative of a witness concerning benefits, potential benefits or detriments conferred on a witness by any prosecutor, police official, corrections official or anyone else, should be reduced to writing, and should be disclosed to the defense in advance of trial.

ISAA: The ISAA agrees in principle with this proposal, but points out that current law already requires the disclosure of any benefit expected by the witness in exchange for his testimony.

ISBA: Should be included in Recommendation 49.

Recommendation 51:

Whenever the State may introduce the testimony of an in-custody informant who has agreed to testify for the prosecution in a capital case to a statement allegedly made by the defendant, at either the guilt or sentencing phase, the State should promptly inform the defense as to the identification and background of the witness.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support but delete limitation on "in-custody."

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 52:

(a) Prior to trial, the trial judge shall hold an evidentiary hearing to determine the reliability and admissibility of the in-custody informant's testimony at either the guilt or sentencing phase.

(b) At the pre-trial evidentiary hearing, the trial judge shall use the following standards:

The prosecution bears the burden of proving by a preponderance of evidence that the witness' testimony is reliable. The trial judge may consider the following factors, as well as any other factors bearing on the witness' credibility:

 

(1) The specific statements to which the witness will testify.

(2) The time and place, and other circumstances regarding the alleged statements.

(3) Any deal or inducement made by the informant and the police or prosecutors in exchange for the witness' testimony.

(4) The criminal history of the witness.

(5) Whether the witness has ever recanted his/her testimony.

(6) Other cases in which the witness testified to alleged confessions by others.

(7) Any other known evidence that may attest to or diminish the credibility of the witness, including the presence or absence of any relationship between the accused and the witness.

 

(c) The State may file an interlocutory appeal from a ruling suppressing the testimony of an in-custody informant, pursuant to Illinois Supreme Court Rule 604.

ISAA: The ISAA disagrees with this proposal because it intrudes into the jury's role in discerning witness credibility. Instead, the ISAA has long stated that a jury instruction similar to the accomplice witness instruction would be more effective in addressing this concern without interfering with the jury's function.

ISBA: Support but delete the limitation on "in-custody." The ISBA Committee did not think that whether the informant was in-custody or not was relevant to the problem that this recommendation was trying to resolve. Although this recommendation was unanimously supported by the Governor's Commission, it did spark an animated debate among our Committee. The opponents thought it was unnecessarily making new law to treat this witness differently than any other witness. They also had equal protection concerns by non-capital defendants. They agreed with the Illinois State's Attorneys' Association that using a jury instruction similar to what federal courts use for informants would be a better way to proceed.

The proponents said that this was not such a big step, other witnesses are examined by the court before allowing them to testify, such as the competency of juveniles. Regardless of whether this is or is not a new procedure, the proponents believe that these witnesses are different and therefore must be treated differently.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 53:

In capital cases, courts should closely scrutinize any tactic that misleads the suspect as to the strength of the evidence against him/her, or the likelihood of his/her guilt, in order to determine whether this tactic would be likely to induce an involuntary or untrustworthy confession.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Recommendation 54:

The Commission makes no recommendation about whether or not plea negotiations should be restricted with respect to the death penalty.

ISAA: No comment.

ISBA: Support.

Chapter 9--The Guilt-Innocence Phase

The recommendations in this Chapter address evidentiary problems which are of greater concern in capital cases, but which occur in other trials as well. The Commission has unanimously recommended that expert testimony with respect to the problems associated with eyewitness evidence be admitted on a case by case basis, that instructions relating to eyewitness testimony should elucidate the factors for the jury to consider, and caution the jury to consider such testimony carefully in light of other evidence in the case, and that special cautionary instructions be given to the jury for in-custody informant testimony. The Commission also continues to support the exclusion by Illinois courts of polygraph evidence. A majority of Commission members supported revisions to the instructions to the jury relating to evaluation of unrecorded statements by the defendant.

Recommendation 55 :

Expert testimony with respect to the problems associated with eyewitness testimony may be helpful in appropriate cases. Determinations as to whether such evidence may be admitted should be resolved by the trial judge on a case by case basis.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Recommendation 56:

Jury instructions with respect to eyewitness testimony should enumerate factors for the jury to consider, including the difficulty of making a cross-racial identification. The current version of IPI is a step in the right direction, but should be improved. IPI 3.15 should also be amended to add a final sentence which states as follows:"Eyewitness testimony should be carefully examined in light of other evidence in the case."

ISAA: The ISAA disagrees with these proposals. The current IPI instructions adequately state the law instructing jurors to consider all the legally relevant factors relating to the sufficiency of an identification, including the witness' opportunity to view the offender at the time of the offense, his degree of attention and the length of time between the offense and the identification. It would be inaccurate, highly offensive, and a throwback to the worst legal classifications in our history, to categorically impeach a witness' ability to recognize a human being on the sole basis of the witness' race.

Moreover, the ISAA does not believe it is appropriate to highlight a particular type of evidence such as eyewitness testimony because juries are already told to "consider all the facts and circumstances in evidence" when weighing the identification testimony of a witness.

ISBA: Support.

Recommendation 57:

The Committee on the Illinois Pattern Jury Instructions-Criminal should consider a jury instruction providing for "special caution" with respect to the reliability of the testimony of in- custody informants.

ISAA: The ISAA supports this proposal as the appropriate method for curing the special problems with testimony from in-custody informants. This proposal promotes a more informed trial system and makes Recommendation 52 (which excludes information from the fact-finder) unnecessary.

ISBA: Support. Delete limitation on "in-custody."

Recommendation 58:

IPI-Criminal 3.06 and 3.07 should be supplemented by adding the italicized sentences, to be given only when the defendant's statement is not recorded:

 

"You have before you evidence that the defendant made a statement relating to the offenses charged in the indictment. It is for you to determine [whether the defendant made the statement and, if so,] what weight should be given to the statement. In determining the weight to be given to a statement, you should consider all of the circumstances under which it was made. You should pay particular attention to whether or not the statement is recorded, and if it is, what method was used to record it. Generally, an electronic recording that contains the defendant's actual voice or a statement written by the defendant is more reliable than a non-recorded summary."

 

ISAA: The ISAA disagrees with this proposal as it calls for the jury to be instructed that certain statements are inherently unreliable even though those same statements were found by the trial judge to have been voluntarily made.

ISBA: Oppose, but the ISBA Committee does think that attorneys should be allowed to argue this point. We have no objection to the Commission's statement contained in this recommendation that it is appropriate to give a jury instruction that encourages the jury to give proper consideration to whether a statement by the defendant was recorded in assessing credibility.

Recommendation 59:

Illinois courts should continue to reject the results of polygraph examination during the innocence/guilt phase of capital trials.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Chapter 10--The Sentencing Phase

Following the determination as to the guilt of the defendant, a separate sentencing hearing must be held in order to impose capital punishment. This Chapter contains recommendations that specifically apply to this phase of the trial. Different rules apply to this sentencing trial, and different considerations are presented. In the first part of the sentencing phase, the defendant's eligibility for the death penalty must be determined. The Commission's recommendations for limiting the class of cases eligible for the death penalty were presented in Chapter 4 of this report. The Commission also supports the application of discovery rules to the sentencing phase, additions to the statutory list of mitigating factors to be considered, permitting the defendant to make a statement in allocation at the sentencing phase, and instructing the jury on sentencing alternatives.

Recommendation 60:

The Commission supports the new amendments to Supreme Court Rule 411, which make the rules of discovery applicable to the sentencing phase of capital cases.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Recommendation 61:

The mitigating factors considered by the jury in the death penalty sentencing scheme should be expanded to include the defendant's history of extreme emotional or physical abuse, and that the defendant suffers from reduced mental capacity.

ISAA: The ISAA agrees with this proposal, but points out that such mitigating evidence is always presented by the defense in a capital case if such evidence is available. In fact, any failure to present this type of mitigation evidence would be ineffective assistance of counsel and would cause reversal of the death sentence. This recommendation would put a statutory gloss on current law and practice which are both supported by the ISAA.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 62:

The defendant should have the right to make a statement on his own behalf during the aggravation/mitigation phase, without being subject to cross-examination.

ISAA: The ISAA disagrees with this proposal because the Illinois Supreme Court has consistently held that capital defendants are not entitled to make an unsworn statement in allocution, particularly since the defendant may attempt to address disputed factual matters in his plea for mercy.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 63:

The jury should be instructed as to the alternative sentences that may be imposed in the event that the death penalty is not imposed.

ISAA: The ISAA disagrees with the proposal that the jury be instructed as to all possible sentencing possibilities, except in cases where the only alternative is mandatory natural life, because such an instruction could actually prejudice the defendant by making a death sentence more likely. If a jury is told that the defendant could be sentenced to as little as 20 years (even though such a sentence would be highly unlikely), the jury might determine that the death penalty is necessary to ensure that he is never released into society.

ISBA: Support, but limit instruction to inform jury when life without parole is the mandatory alternative to death.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 64:

Illinois courts should continue to reject the results of polygraph examinations during the sentencing phase of capital trials.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Support.

Chapter 11--Imposition of sentence

In Illinois, the statute which describes the method by which the jury must make its decision on whether to impose a death sentence has been criticized as confusing. The Commission unanimously recommends changing the statute to clarify the language and instruct the jury that it must determine unanimously, after considering factors in aggravation and mitigation, whether death is the appropriate sentence. The Commission also recommends, by majority vote, that following the jury verdict on the imposition of capital punishment, the trial judge should indicate on the record whether he or she concurs in the result. If not, a sentence other than death should be imposed. A unanimous recommendation has been made that the death penalty not be imposed on those who are mentally retarded. Finally, the Commission identified several types of cases in which the potential for error was significantly higher, and unanimously recommends that the death penalty be precluded in cases involving uncorroborated testimony from an in-custody informant, an accomplice, and cases based upon a single-eyewitness.

Recommendation 65:

The statute which establishes the method by which the jury should arrive at its sentence should be amended to include language such as that contained in former Senate Bill 1903 to make it clear that the jury should weigh the factors in the case and reach its own independent conclusion about whether the death penalty should be imposed. The statute should be amended to read: "If the jury determines unanimously, after weighing the factors in aggravation and mitigation, that death is the appropriate sentence."

ISAA: Although the Illinois Supreme Court and the Federal Courts have consistently rejected any claim that the current statutory language is confusing and might lead a jury to believe that the death penalty is mandatory, the ISAA does not oppose such an amendment because every judge or jury must ultimately determine whether death is the "appropriate" sentence.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 66:

After the jury renders its judgement with respect to the imposition of the death penalty, the trial judge should be required to indicate on the record whether he or she concurs in the result. In cases where the trial judge does not concur in the imposition of the death penalty, the defendant shall be sentenced to natural life as a mandatory alternative (assuming adoption of new death penalty scheme limited to five eligibility factors).

ISAA: The ISAA disagrees with this proposal because it is an extreme recommendation, unlike any other statutory scheme in the country, and would effectively eliminate bench trials in capital cases. Also, Illinois trial judges currently have the authority to grant a new trial or sentencing hearing (or even enter a judgment notwithstanding the verdict). Nevertheless, the ISAA is willing to study whether less extreme options are feasible.

ISBA: Oppose because it may be counterproductive for what this recommendation purports to resolve. We prefer the use of a residual doubt jury instruction that the Commission rejected on page 147 of its Report. We believe that residual doubt as to the guilt of the defendant should be a mitigating factor and instruct the jury to that effect. Death is differentBif anyone has any doubt, a defendant should not be sentenced to death.

"'Residual doubt' over the defendant's guilt has been recognized as the most powerful 'mitigating fact'." Stephen P. Garvey, "Aggravation and Mitigation in Capital Cases: What do Jurors Think?," 98 Colum.L.Rev. 1538, 1563 (1998); as quoted in Tarver v. Hopper, 169 F.3d 710, 716 (11^th Cir. 1999). "Furthermore, the American Law Institute, in a proposed model penal code, similarly recognized the importance of residual doubt in sentencing by including residual doubt as a mitigating circumstance." Tarver v. Hopper, at 716.

It is simply not logical that an attorney should be prevented from arguing or that a jury should be prevented from considering residual doubt of the defendant's guilt before reaching a decision on whether death should be imposed against him or her.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 67:

In any case approved for capital punishment under the new death penalty scheme with five eligibility factors, if the finder of fact determines that death is not the appropriate sentence, the mandatory alternative sentence would be natural life.

ISAA: Although the ISAA disagrees with the proposed reduction to five eligibility factors, the ISAA could support a statutory requirement that whenever a defendant is found death eligible, the only other available sentence is mandatory natural life.

ISBA: Support.

Recommendation 68:

Illinois should adopt a statute which prohibits the imposition of the death penalty for those defendants found to be mentally retarded. The best model to follow in terms of specific language is that found in the Tennessee statute.

ISAA: The ISAA supports this goal but stresses that the goal must be achieved with an objective standard for mental retardation which has been established before the defendant's crime. The Commission's commentary makes a strong case that any definition of mental retardation must include a combination of significant deficits in general intellectual functioning and adaptive behavior as well as manifestation of mental retardation prior to age 18.

ISBA: Support the principle without specific language.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 69:

Illinois should adopt a statute which provides:

A. The uncorroborated testimony of an in-custody informant witness concerning the confession or admission of the defendant may not be the sole basis for imposition of a death penalty.

B. Convictions for murder based upon the testimony of a single eyewitness or accomplice, without any other corroboration, should not be death eligible under any circumstances.

ISAA: Although the ISAA recognizes that most prosecutors would not seek death in such a case, the ISAA disagrees that it is appropriate to systematically preclude the death penalty based on certain types of evidence. The ISAA knows of no completely uncorroborated single witness murder case. Without knowing the Commission's definition of "uncorroborated," it is possible that the Commission would disqualify a single witness case like the one against Richard Speck.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Chapter 12--Proceedings following conviction and sentence

This Chapter outlines recommendations for changes following the trial and sentencing phase. The Commission has recommended a number of changes to proceedings following trial. A majority of Commission members expressed the view that Illinois should expand the scope of review on direct appeal to embrace consideration of whether the imposition of the death sentence was excessive or disproportionate to the penalty imposed in other, similar cases. Members unanimously supported imposing post-trial disclosure responsibilities on prosecutors to disclose evidence which might negate the guilt or mitigate the sentence of a defendant. Three proposals to restructure the time limits in post-conviction review have also been recommended unanimously. Finally, the Commission also unanimously recommended earlier filings of clemency petitions to encourage timely disposition.

Recommendation 70:

In capital cases, the Illinois Supreme Court should consider on direct appeal (1) whether the sentence was imposed due to some arbitrary factor, (2) whether an independent weighing of the aggravating and mitigating circumstances indicates death was the proper sentence, and (3) whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases.

ISAA: Even though such review is not required by the federal constitution or the Illinois death penalty statute, current Illinois law provides that the Illinois Supreme Court will address these precise issues whenever they are raised by defendants in capital cases. Therefore, the ISAA believes this proposal is unnecessary since it is already addressed by Illinois law.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 71:

Illinois Supreme Court Rule 3.8, Special Responsibilities of a Prosecutor, should be amended in paragraph (c) by the addition of the language italicized:

 

(c) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if the defendant is not represented by a lawyer, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused or mitigate the degree of the offense. Following conviction, a public prosecutor or other government lawyer has the continuing obligation to make timely disclosure to the counsel for the defendant or to the defendant if the defendant is not represented by a lawyer, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the defendant or mitigate the defendant's capital sentence. For purposes of this post-conviction disclosure responsibility "timely disclosure" contemplates that prosecutor or other government lawyer should have the opportunity to investigate matters related to the new evidence.

ISAA: Although prosecutors already consider their obligation to disclose exculpatory evidence as ongoing, thereby rendering this proposal unnecessary, the ISAA would not oppose this proposal as a further codification of existing law.

ISBA: Support.

Recommendation 72:

The Post-Conviction Hearing Act should be amended to provide that a petition for a post-conviction proceeding in a capital case should be filed within 6 months after the issuance of the mandate by the Supreme Court on affirmance of the direct appeal from the trial.

ISAA: The ISAA is opposed to any additional delays in the system as being unfair to the victims.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 73:

The Post-Conviction Hearing Act should be amended to provide that the trial court should convene the evidentiary hearing on the petition within one year of the date the petition is filed.

ISAA: Support.

ISBA: Oppose. This is a solution that will cause more problems than it will allegedly resolve. The Post-Conviction Hearing Act already has overlapping, short deadlines. This may very well trigger the bizarre spectacle of a Post-Conviction Hearing Act petition required to be heard before the direct appeal is completed. These cases are often extraordinarily difficult to prepare--cases, exhibits, and witnesses disappear or may take years to find.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 74:

The Post-Conviction Hearing Act should be amended to provide that in capital cases, a proceeding may be initiated in cases in which there is newly discovered evidence which offers a substantial basis to believe that the defendant is actually innocent, and such proceedings should be available at any time following the defendant's conviction regardless of other provisions of the Act limiting the time within such proceedings can be initiated. In order to prevent frivolous petitions, the Act should provide that in proceedings asserting a claim of actual innocence, the court may make an initial determination with or without a hearing that the claim is frivolous.

ISAA: The ISAA agrees in principle but believes that a better approach may be found in current legislation (Senate Bill 2023) sponsored by the DuPage County State's Attorney's Office.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 75:

Illinois law should provide that after all appeals have been exhausted and the Attorney General applies for a final execution date for the defendant, a clemency petition may not be filed later than 30 days after the date that the Illinois Supreme Court enters an order setting an execution date.

ISAA: Support.

ISBA: Oppose because it may impair the right and ability of an Illinois Governor to have a complete clemency review.

Chapter 13--Funding

Commission members recognized that implementing many of the proposals for reform in this report will require a significant commitment of financial resources. Without that commitment to the criminal justice system, any meaningful implementation of many of these reforms will be curtailed. This Chapter addresses some of the Commission's recommendations which require funding consideration. The Commission unanimously recommended that leaders in both the executive and legislative branches significantly improve resources available to the criminal justice system to insure meaningful implementation of reforms. This Chapter identifies a number of important efforts, the substance of which may be discussed in other portions of this report, where funding plays a significant role. These include the reauthorization of the Capital Crimes Litigation Act, state-wide trial support of defense counsel by the State Appellate Defender, improved access to research and research staff or judges, improvements to training for all parties, a stronger commitment to funding forensic laboratories with particular emphasis on creation of the comprehensive DNA database, and assistance with student loans for those entering careers in the criminal justice system.

Recommendation 76:

Leaders in both the executive and legislative branches should significantly improve the resources available to the criminal justice system in order to permit the meaningful implementation of reforms in capital cases.

ISAA: Support.

ISBA: Support.

Recommendation 77:

The Capital Crimes Litigation Act (725 ILCS 124/1 et seq.), which is the State statute containing the Capital Litigation Trust Fund and other provisions, should be reauthorized by the General Assembly.

ISAA: Support.

ISBA: Support.

Recommendation 78:

The Commission supports the concept articulated in the statute governing the Capital Litigation Trust Fund that adequate compensation be provided to trial counsel in capital cases for both time and expense, and encourages regular reconsideration of the hourly rates authorized under the statute to reflect the actual market rates of private attorneys.

ISAA: Support.

ISBA: Support.

Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.

Recommendation 79:

The provisions of the Capital Litigation Trust Fund should be construed as broadly as possible to insure that public defenders, particularly those in rural parts of the State, can effectively use its provisions to secure additional counsel and reimbursement of all reasonable trial related expenses in capital cases.

ISAA: Support.

ISBA: Support.

Recommendation 80:

The work of State Appellate Defender's office in providing state-wide trial support in capital cases should continue, and funds should be appropriated for this purpose.

ISAA: Support.

ISBA: Support.

Recommendation 81:

The Commission supports the recommendations in the Report of the Task Force on Professional Practice in the Illinois Justice System to reduce the burden of student loans for those entering criminal justice careers and improve salary levels and pension contributions for those in the system in order to insure retention of qualified counsel.

ISAA: Support.

ISBA: Support.

Recommendation 82:

Adequate funding should be provided by the State of Illinois to all Illinois police agencies to pay for electronic recording equipment, personnel and facilities needed to conduct electronic recordings in homicide cases.

ISAA: Support.

ISBA: Support.

Chapter 14--General Recommendations

As the Commission discussed many of its proposals for capital cases, it became apparent that some issues also applied with equal force to non-capital cases. It was the view of a majority of Commission members that extension of many of these recommendations to the entire criminal justice system should be seriously considered. The collection of better data with respect to homicide cases in Illinois, irrespective of whether proposals from Chapter 12 on proportionality review are adopted, was unanimously approved by the Commission. Finally, the Commission recommends that judges should be reminded of their responsibility to report instances of trial counsel misconduct to disciplinary authorities. This chapter also contains a discussion of various research reports in the areas of victim issues, factors which may impact upon the imposition of sentencing, and costs related to the death penalty.

Recommendation 83:

The Commission strongly urges consideration of ways to broaden the application of many of the recommendations made by the Commission to improve the criminal justice system as a whole.

ISAA: The ISAA agrees with this proposal to the extent that it supports the specific recommendations which improve the overall truth-seeking function of our trial system and the improved expertise of its practitioners and judges.

ISBA: Support.

Recommendation 84:

Information should be collected at the trial level with respect to prosecutions of first degree murder cases by trial judges, which would detail information that could prove valuable in assessing whether the death penalty is, in fact, being fairly applied. Data should be collected on a form which provides details about the trial, the background of the defendant, and the basis for the sentence imposed. The forms should be collected by the Administrative Office of the Illinois Courts, and the form from an individual case should not be a public record. Data collected from the forms should be public and should be maintained in a public access database by the Criminal Justice Information Authority.

ISAA: Data collection is good, but there are two problems with this proposal. First, trial judges should not be saddled with the ministerial burden of collecting data for statisticians. Second, while statistics can measure many things, statistics will not measure the fairness and justice of a criminal justice system which assesses truth and justice in the unique facts and circumstances in each case.

ISBA: Support.

Recommendation 85:

Judges should be reminded of their obligation under Canon 3 to report violations of the Rules of Professional conduct by prosecutors and defense lawyers.

ISAA: This recommendation restates current law which the ISAA supports.

ISBA: Oppose. Are not judges "reminded" all the time by programs, memos, and the Canons of Judicial Conduct to report violations of the Rules of Professional Conduct?

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The summary of the recommendations was first published in the ISBA's Constitutional Law & Liberty newsletter, May 2002, Vol. 28, No.3, and is reprinted with permission.