Standing Committee on Government Lawyers
November 2002 VOL. 4, NO. 2
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
Report of the Governor's Commission on Capital Punishment
Compiled by Patrick J. Hughes, Jr., Paul A. Logli and Lynn Patton
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.