[ Search ] [ PDF text ] [ Legislation ]
[ Home ] [ Back ] [ Bottom ]
| [ Introduced ] | [ Engrossed ] | [ Enrolled ] |
| [ Senate Amendment 002 ] |
92_HB2058gms
STATE OF ILLINOIS
OFFICE OF THE GOVERNOR
SPRINGFIELD, 62706
GEORGE H. RYAN
GOVERNOR
August 23, 2002
To the Honorable Members of the
Illinois House of Representatives
92nd General Assembly
Pursuant to the authority vested in the Governor by
Article IV, Section 9(e) of the Illinois Constitution of
1970, and re-affirmed by the People of the State of Illinois
by popular referendum in 1974, and conforming to the standard
articulated by the Illinois Supreme Court in People ex Rel.
Klinger v. Howlett, 50 Ill. 2d 242 (1972), Continental
Illinois National Bank and Trust Co. v. Zagel, 78 Ill. 2d 387
(1979), People ex Rel. City of Canton v. Crouch, 79 Ill. 2d
356 (1980), and County of Kane v. Carlson, 116 Ill. 2d 186
(1987), that gubernatorial action be consistent with the
fundamental purposes and the intent of the bill, I hereby
return House Bill 2058, entitled "AN ACT in relation to
terrorism", with my specific recommendations for change.
House Bill 2058 amends 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 Statewide
Grand Jury Act, the Unified Code of Corrections, the
Charitable Trust Act and other Acts with respect to
investigating, prosecuting and punishing acts of terrorism.
Specifically, the bill amends the Criminal Code of 1961 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.
House Bill 2058 is the second terrorism bill to pass the
General Assembly. On February 8th of this year, I
amendatorily vetoed the first terrorism bill (House Bill
2299) due to, among others, concerns surrounding the
over-expansive eavesdropping & wiretapping provisions, the
expansion of our death eligibility factors, the need for
additional due process protections before seizing and
freezing of assets of charitable organizations and persons,
and other technical flaws. The proposed amendments were
important to protecting the constitutional rights of our
citizens from some of the overly broad provisions of this
legislation. I am pleased to see that the General Assembly
has passed a much-improved anti-terrorism bill by including
all but one of my suggested changes in House Bill 2058.
However, the one suggested amendatory veto change that the
General Assembly did not incorporate into House Bill 2058 is
removing the addition of an unnecessary death eligibility
factor for a first-degree murder committed as part of a
terrorist offense. Our current death penalty statute has
numerous provisions that cover just about every conceivable
murder circumstance that would be committed by a terrorist.
Illinois' legislative response to the tragic events of
September 11th should not compromise our state government's
integrity by succumbing to the urge to enact largely symbolic
legislative changes.
House Bill 2058 passed the General Assembly on May 29,
2002. This was a month and a half after my Commission on
Capital Punishment delivered its report with 85 proposed
reforms to the death penalty system and more than two weeks
after I introduced reform legislation that would codify many
of the Commission's recommendations. The General Assembly,
however, did not address the important issue of comprehensive
death penalty reform during the spring legislative session,
but rather sent me yet another bill expanding the death
penalty. This occurred despite what I believe is a growing
consensus to limit eligibility factors in some fashion. The
General Assembly has convened committees to look into the
issue of death penalty reform, which have been meeting over
the summer months. And while I applaud both the House and
Senate for convening these committees to look into the issue
of death penalty reform, I am troubled by the relative ease
with which a death penalty expansion bill was able to pass
before any real legislative attention had been given to
carrying out much needed reforms. Given our State's capital
punishment track record, there can be little doubt that
reform should take precedence over expanding death penalty
eligibility in what most believe to be a flawed system.
Failure to do so can only serve to demonstrate that Illinois
is more concerned with making a symbolic statement with an
unnecessary death penalty provision than with ensuring that
additional innocent persons do not end up on death row and
executed at the hands of the state.
While it is true that the General Assembly previously
passed the Capital Crimes Litigation Act to better fund
defense and prosecution of capital cases and legislation
requiring stricter controls over retaining evidence, this
year I did not receive a single death penalty reform
proposal. For the third time in barely over a year, I am
receiving legislation aimed at expanding the death penalty
statute, despite my two previous vetoes of the prior
attempts to expand the statute. Instead of sending me
comprehensive death penalty reform legislation, I have
received only death penalty expansion legislation. This,
despite the fact that my Commission comprised of intelligent,
insightful, experienced, passionate and well-rounded
individuals has come up with 85 recommendations for change to
our flawed capital punishment system. The Illinois State Bar
Association, the Illinois State's Attorney?s Association, the
Illinois Chiefs of Police, the Illinois Public Defender's
Association and many others have gone on record as agreeing
with the vast majority of the Commission's recommendations.
Since the reinstatement of the death penalty on June 27,
1977, the number of innocent persons exonerated from death
row has outnumbered the number of those who have been
executed. There may still be innocent persons on death
row-sentenced to die by a badly flawed system. If that system
is allowed to continue unchanged and unreformed, then there
undoubtedly will be more innocent men and women who find
themselves awaiting their death at the hands of the people of
the State of Illinois for a crime that they did not commit.
Now is the time for reform of Illinois' death penalty
system. To do anything otherwise is unjust, unfair and
unprincipled.
Therefore, if the General Assembly wants to expand the
death penalty with House Bill 2058, then justice demands that
the General Assembly be prepared to adopt some needed reforms
to make sure the death penalty is considered and imposed in a
fair and just manner. To that end, I am proposing an
amendatory veto of House Bill 2058 to include changes in the
death penalty system that I believe will help keep Illinois'
death penalty statutes constitutional, address technical
flaws in the system and begin restoring public confidence in
our system of justice. There are additional reforms the
General Assembly must consider in November, but the reform
proposals contained in this amendatory veto are both
applicable and necessary to the death penalty provision in
this bill.
For these reasons, I hereby return House Bill 2058 with
the following recommendations for change:
on page 1, by inserting between lines 3 and 4 the following:
"Section 2. The Counties Code is amended by changing
Section 3-4006 as follows:
(55 ILCS 5/3-4006) (from Ch. 34, par. 3-4006)
Sec. 3-4006. Duties of public defender. The Public
Defender, as directed by the court, shall act as attorney,
without fee, before any court within any county for all
persons who are held in custody or who are charged with the
commission of any criminal offense, and who the court finds
are unable to employ counsel.
The Public Defender shall be the attorney, without fee,
when so appointed by the court under Section 1-20 of the
Juvenile Court Act or Section 1-5 of the Juvenile Court Act
of 1987 or by any court under Section 5(b) of the Parental
Notice of Abortion Act of 1983 for any party who the court
finds is financially unable to employ counsel.
The Public Defender may act as attorney, without fee and
appointment by the court, for a person in custody during the
person's interrogation regarding first degree murder for
which the death penalty may be imposed, if the person has
requested the advice of counsel and there is a reasonable
belief that the person is indigent. Any further
representation of the person by the Public Defender shall be
pursuant to Section 109-1 of the Code of Criminal Procedure
of 1963.
Every court shall, with the consent of the defendant and
where the court finds that the rights of the defendant would
be prejudiced by the appointment of the public defender,
appoint counsel other than the public defender, except as
otherwise provided in Section 113-3 of the "Code of Criminal
Procedure of 1963". That counsel shall be compensated as is
provided by law. He shall also, in the case of the conviction
of any such person, prosecute any proceeding in review which
in his judgment the interests of justice require. (Source:
P.A. 86-962.)"; and
on page 8, by replacing lines 18 through 21 with the
following:
"(b) Aggravating Factors. A defendant:
(i) who at the time of the commission of the offense has
attained the age of 18 or more;
(ii) and who has been found guilty of first degree
murder; and
(iii) whose guilt was not, in the determination of the
court, based solely upon the uncorroborated testimony of
one eyewitness, of one accomplice, or of one incarcerated
informant;
may be sentenced to death if:";
and on page 11, by replacing lines 1 and 2 with the
following:
"to prevent the murdered individual from testifying or
participating in any criminal investigation or prosecution or
giving material assistance to the"; and
on page 11, by replacing line 5 with the following:
"murder because the murdered individual was a witness or
participated in"; and
on page 13, by replacing lines 23 through 27 with the
following:
"For the purpose of this Section:
Torture" means the intentional and depraved infliction of
extreme physical pain for a prolonged period of time prior to
the victim's death.
"Depraved" means the defendant relished the infliction of
extreme physical pain upon the victim evidencing debasement
or perversion or that the defendant evidenced a sense of
pleasure in the infliction of extreme physical pain.
"Participating in any criminal investigation or
prosecution" is intended to include those appearing in the
proceedings in any capacity, such as trial judges,
prosecutors, defense attorneys, investigators, witnesses, or
jurors.
(c) Consideration of accomplice or informant testimony
and factors in aggravation and mitigation.
When the sentence of death is being sought by the State,
the court shall consider, or shall instruct the jury to
consider that the testimony of an accomplice or incarcerated
informant who may provide evidence against a defendant for
pay, immunity from punishment, or personal advantage must be
examined and weighed with greater care than the testimony of
an ordinary witness. Whether the accomplice or informant's
testimony has been affected by interest or prejudice against
the defendant must be determined. In making the
determination, the jury must consider (i) whether the
accomplice or incarcerated informant has received anything,
including pay, immunity from prosecution, leniency in
prosecution, or personal advantage, in exchange for
testimony, (ii) any other case in which the accomplice or
informant testified or offered statements against an
individual but was not called, and whether the statements
were admitted in the case, and whether the accomplice or
informant received any deal, promise, inducement, or benefit
in exchange for that testimony or statement, (iii) whether
the accomplice or informant has ever changed his or her
testimony, (iv) the criminal history of the accomplice or
informant, and (v) any other evidence relevant to the
credibility of the accomplice or informant.
The court shall also consider, or shall also instruct the
jury to consider, any aggravating and any mitigating factors
which are relevant to the imposition of the death penalty.
Before the jury makes a determination with respect to the
imposition of the death penalty, the court shall also
instruct the jury of the applicable alternative sentences
under Chapter V of the Unified Code of Corrections that the
court may impose for first degree murder if a jury
determination precludes the death sentence. Aggravating";
and
on page 14, line 10, by replacing the period with ";.-
(6) the defendant's background includes a history of
extreme emotional or physical abuse;
(7) the defendant suffers from a reduced mental
capacity."; and
on page 15, line 4, by inserting after the period the
following:
"The defendant shall be given the opportunity, personally or
through counsel, to make a statement that is not subject to
cross-examination. If the proceeding is before a jury, the
defendant's statement shall be reduced to writing in advance
and submitted to the court and the State, so that the court
may rule upon any evidentiary objection with respect to
admissibility of the statement."; and
on page 15, by replacing lines 22 through 29 with the
following:
"determines unanimously, after weighing the factors in
aggravation and mitigation, that death is the appropriate
sentence and the court concurs with the jury determination
that there are no mitigating factors sufficient to preclude
the imposition of the death sentence, the court shall
sentence the defendant to death. If the court does not concur
with the jury determination that death is the appropriate
sentence, the court shall set forth reasons in writing and
shall then sentence the defendant to a term of natural life
imprisonment under Chapter V of the Unified Code of
Corrections.
If Unless the jury determines unanimously, after weighing
the factors in aggravation and mitigation, that death is not
the appropriate sentence, finds that there are no mitigating
factors sufficient to preclude the imposition of the death
sentence the court shall sentence the defendant to a term of
imprisonment under Chapter V of the Unified Code of
Corrections."; and
on page 16, by replacing lines 5 through 13 with the
following:
"subsection (c). If the Court determines, after weighing the
factors in aggravation and mitigation, that death is the
appropriate sentence that there are no mitigating factors
sufficient to preclude the imposition of the death sentence,
the Court shall sentence the defendant to death.
If Unless the court finds that there are no mitigating
factors sufficient to preclude the imposition of the sentence
of death is not the appropriate sentence, the court shall
sentence the defendant to a term of imprisonment under
Chapter V of the Unified Code of Corrections."; and
on page 16, line 17, by inserting after the period the
following:
"Upon the request of the defendant, the Supreme Court must
determine whether the sentence was imposed due to some
arbitrary factor; whether an independent weighing of the
aggravating and mitigating circumstances indicate death was
the proper sentence; and whether the sentence of death was
excessive or disproportionate to the penalty imposed in
similar cases. The Supreme Court may order the collection of
data and information to support the review required by this
subsection (i)."; and
on page 20, line 5, by replacing "and" with "and"; and
on page 22, line 3, by replacing the period with the
following:
"; and
(k) Recording the interrogation or statement of a person
in custody for first degree murder or a witness in a
first degree murder case, when the person in custody or
witness knows the interrogation is being conducted by a
law enforcement officer or prosecutor. For the purposes
of this Section, "interrogation of a person in custody"
means any interrogation during which the person being
interrogated is not free to leave and the person is being
asked questions relevant to the first degree murder
investigation."; and
on page 41, by replacing line 28 with the following:
"108B-11, 108B-12, 108B-14, 114-11, 114-13, 116-3, 122-1, and
122-2.1 and by adding Sections 108B-7.5, 113-7, 114-15,
114-16, 115-16.1, and 115-21 as"; and
on page 68, by inserting between lines 1 and 2 the following:
"(725 ILCS 5/113-7 new)
Sec. 113-7. Notice of intention to seek or decline the
death penalty. The State's Attorney or Attorney General shall
provide notice of the State's intention to seek or decline
the death penalty by filing a Notice of Intent to Seek or
Decline the Death Penalty as soon as practicable. In no event
shall the filing of the notice be later than 120 days after
arraignment, unless, for good cause shown, the court directs
otherwise. A notice of intent to seek the death penalty shall
also include all of the statutory aggravating factors
enumerated in subsection (b) of Section 9-1 of the Criminal
Code of 1961 which the State intends to introduce during the
death penalty sentencing hearing.
(725 ILCS 5/114-11) (from Ch. 38, par. 114-11)
Sec. 114-11. Motion to Suppress Confession.
(a) Prior to the trial of any criminal case a defendant
may move to suppress as evidence any confession given by him
on the ground that it was not voluntary.
(b) The motion shall be in writing and state facts
showing wherein the confession is involuntary.
(c) If the allegations of the motion state facts which,
if true, show that the confession was not voluntarily made
the court shall conduct a hearing into the merits of the
motion.
(d) The burden of going forward with the evidence and the
burden of proving that a confession was voluntary shall be on
the State. Objection to the failure of the State to call all
material witnesses on the issue of whether the confession was
voluntary must be made in the trial court.
(e) The motion shall be made only before a court with
jurisdiction to try the offense.
(f) The issue of the admissibility of the confession
shall not be submitted to the jury. The circumstances
surrounding the making of the confession may be submitted to
the jury as bearing upon the credibility or the weight to be
given to the confession.
(g) The motion shall be made before trial unless
opportunity therefor did not exist or the defendant was not
aware of the grounds for the motion. If the motion is made
during trial, and the court determines that the motion is not
untimely, and the court conducts a hearing on the merits and
enters an order suppressing the confession, the court shall
terminate the trial with respect to every defendant who was
a party to the hearing and who was within the scope of the
order of suppression, without further proceedings, unless the
State files a written notice that there will be no
interlocutory appeal from such order of suppression. In the
event of such termination, the court shall proceed with the
trial of other defendants not thus affected. Such termination
of trial shall be proper and shall not bar subsequent
prosecution of the identical charges and defendants; however,
if after such termination the State fails to prosecute the
interlocutory appeal until a determination of the merits of
the appeal by the reviewing court, the termination shall be
improper within the meaning of subparagraph (a) (3) of
Section 3--4 of the "Criminal Code of 1961", approved July
28, 1961, as amended, and subsequent prosecution of such
defendants upon such charges shall be barred.
(h) In capital cases, the court may also conduct a
hearing pursuant to Section 115-21 on the admissibility of
the statement made by the defendant where the statement has
not been recorded by electronic video or audio, regardless of
whether the defense requests such a hearing. (Source: P.A.
76-1096.)
(725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
Sec. 114-13. Discovery in criminal cases.
(a) Discovery procedures in criminal cases shall be in
accordance with Supreme Court Rules.
(b) Discovery deposition procedures applicable in cases for
which the death penalty may be imposed shall be in
accordance with Supreme Court Rules and this subsection (b),
unless the State has given notice of its intention not to
seek the death penalty.
(1) The intent of this subsection is to (i) ensure
that capital defendants receive fair and impartial trials
and sentencing hearings within the courts of this State
and (ii) minimize the occurrence of error to the maximum
extent feasible by identifying and correcting with due
promptness any error that may occur.
(2) A party may, with leave of court upon a showing
of good cause, take the discovery deposition upon oral
questions of any person disclosed as a witness as
provided by law or Supreme Court Rule. In determining
whether to allow a deposition, the court should consider
(i) the consequences to the party if the deposition is
not allowed, (ii) the complexities of the issues
involved, (iii) the complexity of the testimony of the
witness, and (iv) the other opportunities available to
the party to discover the information sought by
deposition. Under no circumstances, however, may the
defendant be deposed.
(3) The taking of depositions shall be in
accordance with rules providing for the taking of
depositions in civil actions, and the order for the
taking of a deposition may provide that any designated
books, papers, documents, or tangible objects, not
privileged, be produced at the same time and place.
(4) A defendant shall have no right to be
physically present at a discovery deposition. If there is
any concern regarding witness safety, the court may
require that the deposition be held in a place or manner
that will ensure the security of the witness. The court
may also issue protective orders to restrict the use and
disclosure of information provided by a witness.
(5) Absent good cause shown to the court,
depositions shall be completed within 90 days after the
disclosure of witnesses. The parties shall have the right
to compel depositions under this subsection by subpoena.
No witness may be deposed more than once, except by
leave of the court upon a showing of good cause.
(6) If the defendant is indigent, the costs of
taking depositions shall be paid by the county where the
criminal charge is initiated with reimbursement to the
county from the Capital Litigation Trust Fund. If the
defendant is not indigent, the costs shall be allocated
as in civil actions.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/114-15 new)
Sec. 114-15. Motion for genetic marker groupings
comparison analysis.
(a) A defendant may make a motion for a court order
before trial for comparison analysis by the Department of
State Police with those genetic marker groupings maintained
under subsection (f) of Section 5-4-3 of the Unified Code of
Corrections if the defendant meets all of the following
requirements:
(1) The defendant is charged with any offense.
(2) The defendant seeks for the Department of State
Police to identify genetic marker groupings from evidence
collected by criminal justice agencies pursuant to the
alleged offense.
(3) The defendant seeks comparison analysis of
genetic marker groupings of the evidence under
subdivision (2) to those of the defendant, to those of
other forensic evidence, and to those maintained under
subsection (f) of Section 5-4-3 of the Unified Code of
Corrections.
(4) Genetic marker grouping analysis must be
performed by a laboratory compliant with the quality
assurance standards required by the Department of State
Police for genetic marker grouping analysis comparisons.
(5) Reasonable notice of the motion shall be served
upon the State.
(b) The Department of State Police may promulgate rules
for the types of comparisons performed and the quality
assurance standards required for submission of genetic marker
groupings. The provisions of the Administrative Review Law
shall apply to all actions taken under the rules so
promulgated.
(725 ILCS 5/114-16 new)
Sec. 114-16. Motion to preclude death penalty based upon
mental retardation.
(a) A defendant charged with first degree murder may
make a motion prior to trial to preclude the imposition of
the death penalty based upon the mental retardation of the
defendant. The motion shall be in writing and shall state
facts to demonstrate the mental retardation of the defendant.
As used in this Section, "mental retardation" means:
(1) having significantly subaverage general
intellectual functioning as evidenced by a functional
intelligence quotient (I.Q.) of 70 or below; and
(2) having deficits in adaptive behavior. The mental
retardation must have been manifested during the
developmental period, or by 18 years of age.
(b) Notwithstanding any provision of law to the
contrary, a defendant with mental retardation at the time of
committing first degree murder shall not be sentenced to
death.
(c) The burden of going forward with the evidence and
the burden of proving the defendant's mental retardation by a
preponderance of the evidence is upon the defendant. The
determination of whether the defendant was mentally retarded
at the time of the offense of first degree murder shall be
made by the court after a hearing.
(d) If the issue of mental retardation is raised prior
to trial and the court determines that the defendant is not a
person with mental retardation, the defendant shall be
entitled to offer evidence to the trier of fact of diminished
intellectual capacity as a mitigating circumstance pursuant
to clause (c)(7) of Section 9-1 of the Criminal Code of 1961.
(e) The determination by the trier of fact on the
defendant's motion shall not be appealable by interlocutory
appeal, but may be a basis of appeal by either the State or
defendant following the sentencing stage of the trial.
(725 ILCS 5/115-16.1 new)
Sec. 115-16.1. Witness qualification in first
degree murder trial.
(a) In a prosecution for first degree murder where the
State has given notice of its intention to seek the death
penalty, the prosecution must promptly notify the court and
the defendant's attorney of the intention to introduce
testimony at trial from a person who is in custody or who was
in custody at the time of the factual matters to which the
person will testify. The notice to the defendant's attorney
must include the identification, criminal history, and
background of the witness. The prosecution must also promptly
notify the defendant's attorney of any discussion,
inducement, benefit, or agreement between that witness and a
law enforcement agency, officer, or prosecutor for that
witness.
(b) After notice has been given to the court pursuant to
subsection (a), the court must prior to trial conduct an
evidentiary hearing to determine the reliability and
admissibility of the testimony of the witness. The
prosecution has the burden of proving by a preponderance of
the evidence the reliability of the testimony of the witness.
In making its determination, the court may consider:
(1) the specific statements or facts to which the
witness will testify;
(2) the time, place, and other circumstances
regarding the statements or facts to which the witness
will testify;
(3) any discussion, inducement, benefit, or
agreement between the witness and a law enforcement
agency or officer for that witness;
(4) the criminal history of the witness;
(5) whether the witness has ever recanted his or
her testimony;
(6) other criminal cases in which the witness has
testified;
(7) the presence or absence of any relationship
between the accused and the witness; and
(8) any other evidence relevant to the credibility
of the witness.
(725 ILCS 5/115-21 new)
Sec. 115-21. Evidence of statement in capital case.
(a)The General Assembly believes that justice and
fairness are best served if the custodial interrogation
and any statement of the defendant that may result from
the interrogation in a capital case are recorded by means
of electronic video and audio. The General Assembly finds
that the video and audio recording of the interrogation
and statement produce some of the best evidence with
respect to the voluntariness and reliability of the
statement and compliance with the constitutional rights
of the defendant. The General Assembly understands that
to implement such recording practices will require time,
training, and funding. Therefore, the General Assembly
believes that law enforcement officers, to the extent
possible, should record any interrogations and statements
of the suspect, defendant, or significant witness in
capital cases in video and audio format. However, the
General Assembly also recognizes that such video and
audio recording may not always be available or practical
under the circumstances and resources of a particular
case. Further, an interrogation or statement that is not
recorded by video or audio may be just as reliable and
voluntary as one that is so recorded. Therefore, the
purpose of this Section is not to mandate video and audio
recording of interrogations and statements in first
degree murder cases and compel the exclusion of
unrecorded statements or interrogations, but rather to
guarantee an admissibility hearing before the court for
statements made without a video or audio recording. The
State's Attorney for each county and the Attorney General
shall each report separately to the General Assembly by
August 1, 2003 as to the implementation of these
recording procedures in their respective jurisdictions.
(b) When a statement of the defendant made during a
custodial interrogation without an electronic video and
audio recording of the interrogation and statement is to
be offered as evidence at trial for first degree murder
when the State has given notice of its intention to seek
the death penalty, the court must conduct a hearing on
the admissibility of the statement regardless of whether
an admissibility objection has been made. In making a
determination regarding admissibility of the statement,
the court must review the facts with respect to the
voluntariness of the statement, whether the defendant was
properly advised of law. The hearing required by this
Section may be combined with the hearing on the
defendant's motion to suppress his or her confession
pursuant to Section 114-11 of this Code.
(c) For the purposes of this Section, "custodial
interrogation" means any interrogation during which the
person being interrogated is not free to leave and the
person is being asked questions relevant to the first
degree murder investigation.
(725 ILCS 5/116-3)
Sec. 116-3. Motion for fingerprint or forensic testing
not available at trial regarding actual innocence.
(a) A defendant may make a motion before the trial court
that entered the judgment of conviction in his or her case
for the performance of fingerprint or forensic DNA testing,
including comparison analysis of genetic marker groupings of
the evidence collected by criminal justice agencies pursuant
to the alleged offense, to those of the defendant, to those
of other forensic evidence, and to those maintained under
subsection (f) of Section 5-4-3 of the Unified Code of
Corrections, on evidence that was secured in relation to the
trial which resulted in his or her conviction, but which was
not subject to the testing which is now requested because the
technology for the testing was not available at the time of
trial. Reasonable notice of the motion shall be served upon
the State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial which
resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not
been substituted, tampered with, replaced, or altered in
any material aspect.
(c) The trial court shall allow the testing under
reasonable conditions designed to protect the State's
interests in the integrity of the evidence and the testing
process upon a determination that:
(1) the result of the testing has the scientific
potential to produce new, noncumulative evidence
materially relevant to the defendant's assertion of
actual innocence that significantly advances the
defendant's claim of innocence;
(2) the testing requested employs a scientific
method generally accepted within the relevant scientific
community.
(Source: P.A. 90-141, eff. 1-1-98.)
(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
Sec. 122-1. Petition in the trial court.
(a) Any person imprisoned in the penitentiary may
institute a proceeding under this Article if the person who
asserts that:
1) in the proceedings which resulted in his or her
conviction there was a substantial denial of his or her
rights under the Constitution of the United States or of
the State of Illinois or both; or
(2) the death penalty was imposed and there is
newly discovered evidence not available to the person at
the time of the proceeding that resulted in his or her
conviction that establishes the person's innocence.
(a-5) A proceeding under paragraph (2) of subsection (a)
may be commenced at any time after the person's conviction
notwithstanding any other provisions of may institute a
proceeding under this Article. In such a proceeding regarding
actual innocence, if the court determines the petition is
frivolous or is patently without merit, it shall dismiss the
petition in a written order, specifying the findings of fact
and conclusions of law it made in reaching its decision.
Such order of dismissal is a final judgment and shall be
served upon the petitioner by certified mail within 10 days
of its entry.
(b) The proceeding shall be commenced by filing with the
clerk of the court in which the conviction took place a
petition (together with a copy thereof) verified by
affidavit. Petitioner shall also serve another copy upon the
State's Attorney by any of the methods provided in Rule 7
of the Supreme Court. The clerk shall docket the petition
for consideration by the court pursuant to Section 122-2.1
upon his or her receipt thereof and bring the same promptly
to the attention of the court.
(c) Except as otherwise provided in subsection (a-5), if
the petitioner is under sentence of death, no proceedings
under this Article shall be commenced more than 6 months
after the issuance of the mandate by the Supreme Court
following affirmance of the defendant's direct appeal of
the trial court verdict. In all other cases,no proceedings
under this Article shall be commenced more than 6 months
after the denial of a petition for leave to appeal or the
date for filing such a petition if none is filed or more than
45 days after the defendant files his or her brief in the
appeal of the sentence before the Illinois Supreme Court
(or more than 45 days after the deadline for the filing of
the defendant's brief with the Illinois Supreme Court if no
brief is filed) or 3 years from the date of conviction,
whichever is sooner, unless the petitioner alleges facts
showing that the delay was not due to his or her culpable
negligence.
(d) A person seeking relief by filing a petition under
this Section must specify in the petition or its heading
that it is filed under this Section. A trial court that has
received a petition complaining of a conviction or sentence
that fails to specify in the petition or its heading that it
is filed under this Section need not evaluate the petition to
determine whether it could otherwise have stated some
grounds for relief under this Article.
(e) A proceeding under this Article may not be commenced
on behalf of a defendant who has been sentenced to death
without the written consent of the defendant, unless the
defendant, because of a mental or physical condition, is
incapable of asserting his or her own claim.
(Source: P.A. 89-284, eff. 1-1-96; 89-609, eff. 1-1-97;
89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)
(725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
Sec. 122-2.1. (a) Within 90 days after the filing and
docketing of each petition, the court shall examine such
petition and enter an order thereon pursuant to this
Section.
(1) If the petitioner is under sentence of death
and is without counsel and alleges that he is without
means to procure counsel, he shall state whether or not
he wishes counsel to be appointed to represent him. If
appointment of counsel is so requested, the court shall
appoint counsel if satisfied that the petitioner has no
means to procure counsel.
(2) If the petitioner is sentenced to imprisonment and
the court determines the petition is frivolous or is
patently without merit, it shall dismiss the petition in a
written order, specifying the findings of fact and
conclusions of law it made in reaching its decision. Such
order of dismissal is a final judgment and shall be served
upon the petitioner by certified mail within 10 days of its
entry.
(b) If the petition is not dismissed pursuant to this
Section, the court shall order the petition to be docketed
for further consideration in accordance with Sections 122-4
through 122-6. If the petitioner is under sentence of death,
the court shall order the petition to be docketed for
further consideration and hearing within one year of the
filing of the petition.
(c) In considering a petition pursuant to this Section,
the court may examine the court file of the proceeding in
which the petitioner was convicted, any action taken by an
appellate court in such proceeding and any transcripts of
such proceeding. (Source: P.A. 86-655; 87-904.)
Section 20.5. The Capital Crimes Litigation Act is
amended by changing Sections 10 and 19 as follows:
25 ILCS 124/10)
(Section scheduled to be repealed on July 1, 2004)
Sec. 10. Court appointed trial counsel; compensation and
expenses.
(a) This Section applies only to compensation and
expenses of trial counsel appointed by the court as set
forth in Section 5, other than public defenders, for the
period after arraignment and so long as the State's Attorney
has not, at any time, filed a certificate indicating he or
she will not seek the death penalty or stated on the record
in open court that the death penalty will not be sought.
(b)Appointed trial counsel shall be compensated upon
presentment and certification by the circuit court of a
claim for services detailing the date, activity, and time
duration for which compensation is sought. Compensation for
appointed trial counsel may be paid at a reasonable rate not
to exceed $125 per hour.
Beginning in 2001, every January 20, the statutory rate
prescribed in this subsection shall be automatically
increased or decreased, as applicable, by a percentage
equal to the percentage change in the consumer price index-u
during the preceding 12- month calendar year. "Consumer
price index-u" means the index published by the Bureau of
Labor Statistics of the United States Department of Labor
that measures the average change in prices of goods and
services purchased by all urban consumers, United States
city average, all items, 1982-84=100. The new rate
resulting from each annual adjustment shall be determined by
the State Treasurer and made available to the chief judge of
each judicial circuit. Payment in excess of the limitations
stated in this subsection (b) may be made if the trial
court certifies that such payment is necessary to provide
fair compensation for representation based upon customary
charges in the relevant legal market for attorneys of
similar skill, background, and experience. A trial court
may entertain the filing of this verified statement before
the termination of the cause and may order the provisional
payment of sums during the pendency of the cause.
(c) Appointed trial counsel may also petition the court
for certification of expenses for reasonable and necessary
capital litigation expenses including, but not limited to,
investigatory and other assistance, expert, forensic, and
other witnesses, and mitigation specialists. Counsel may
not petition for certification of expenses that may have
been provided or compensated by the State Appellate Defender
under item (c)(5) of Section 10 of the State Appellate
Defender Act.
(d) Appointed trial counsel shall petition the court for
certification of compensation and expenses under this
Section periodically during the course of counsel's
representation. If the court determines that the compensation
and expenses should be paid from the Capital Litigation
Trust Fund, the court shall certify, on a form created by
the State Treasurer, that all or a designated portion of the
amount requested is reasonable, necessary, and appropriate
for payment from the Trust Fund. Certification of
compensation and expenses by a court in any county other than
Cook County shall be delivered by the court to the State
Treasurer and paid by the State Treasurer directly from the
Capital Litigation Trust Fund if there are sufficient moneys
in the Trust Fund to pay the compensation and expenses.
Certification of compensation and expenses by a court in
Cook County shall be delivered by the court to the county
treasurer and paid by the county treasurer from moneys
granted to the county from the Capital Litigation Trust
Fund.
(Source: P.A. 91-589, eff. 1-1-00.)
(725 ILCS 124/19)
(Section scheduled to be repealed on July 1, 2004)
Sec. 19. Report; repeal.
(a) The Cook County Public Defender, the Cook County
State's Attorney, the State Appellate Defender, the
State's Attorneys Appellate Prosecutor, and the Attorney
General shall each report separately to the General
Assembly by January 1, 2004 detailing the amounts of
money received by them through this Act, the uses for
which those funds were expended, the balances then in the
Capital Litigation Trust Fund or county accounts, as the
case may be, dedicated to them for the use and support
of Public Defenders, appointed trial defense counsel,
and State's Attorneys, as the case may be. The report
shall describe and discuss the need for continued
funding through the Fund and contain any suggestions for
changes to this Act.
(b) (Blank) Unless the General Assembly provides
otherwise, this Act is repealed on July 1, 2004.
(Source: P.A. 91-589, eff. 1-1-00.)"; and
on page 73, line 29, by inserting after "5-4-3" the
following:
"and by adding Section 5-2-7"; and
on page 81, by inserting between lines 27 and 28 the
following:
"(730 ILCS 5/5-2-7 new)
Sec. 5-2-7. Fitness to be executed.
(a) A person is unfit to be executed if the person is
mentally retarded. For the purposes of this Section,
"mentally retarded" means:
(1) having significantly sub-average general
intellectual functioning as evidenced by a functional
intelligence quotient (I.Q.) of 70 or below; and
(2) having deficits in adaptive behavior.
The mental retardation must have been manifested during
the developmental period, or by 18 years of age.
(b) The question of fitness to be executed may be raised
after pronouncement of the death sentence. The procedure
for raising and deciding the question shall be the same as
that provided for raising and deciding the question of
fitness to stand trial subject to the following specific
provisions:
(1) the question shall be raised by motion filed in
the sentencing court;
(2) the question shall be decided by the court;
(3) the burden of proving that the offender is
unfit to be executed is on the offender;
(4) if the offender is found to be mentally
retarded, the court must resentence the offender to
natural life imprisonment under Chapter V of the
Unified Code of Corrections."; and
on page 84, by replacing lines 19 and 20 with the following:
"Illinois and to all prosecutorial agencies. Notwithstanding
the limits on disclosure stated by this subsection (f), the
genetic marker grouping analysis information obtained under
this Act also may be released by court order pursuant to a
motion under Section 114-15 of the Code of Criminal
Procedure of 1963 to a defendant who meets all of the
requirements under that Section.
Notwithstanding any other statutory provision to the
contrary, all".
With these specific recommendations for change, House
Bill 2058 will have my approval. I respectfully request
your concurrence.
Sincerely,
s/GEORGE H. RYAN
Governor