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Illinois Capital Punishment Reform Study Committee

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Illinois Capital Punishment Reform Study Committee ILLINOIS CAPITAL PUNISHMENT REFORM STUDY COMMITTEE SIXTH AND FINAL REPORT October 28, 2010 ILLINOIS CAPITAL PUNISHMENT REFORM STUDY COMMITTEE SIXTH AND FINAL REPORT Leigh B. Bienen Jennifer A. Bishop-Jenkins James R. Coldren, Jr. Kirk W. Dillard Walter Hehner Jeffrey M. Howard Boyd J. Ingemunson Edwin R. Parkinson Charles M. Schiedel Richard D. Schwind, Vice Chair Geoffrey R. Stone Randolph N. Stone Thomas P. Sullivan, Chair Arthur L. Turner Michael J. Waller Eric C. Weis October 28,2010 INDEX Page 1. Introduction ........................................................................... 1 (a) The Governor's Commission and this Committee ........ 1 (b) An overview of the work of this Committee ................... 4 2. A description of the Illinois capital punishment system ......... 8 3. Death sentences imposed 2003 through 2009 ................... 22 4. Reforms related to police and sheriffs agencies: electronic recording of suspect interviews ........................................... 26 (a) The requirement that custodial interviews be electronically recorded ................................................ 26 (b) Training for recording .................................................. 27 (c) Law enforcement personnel experiences with recording custodial interviews ..................................................... 29 (d) Funding for equipment, transcribing and storage ....... 34 (e) Pattern jury instructions regarding police tactics during custodial interviews ..................................................... 35 5. Reforms related to police and sheriffs' agencies: lineups and photo spreads .............................................................. 37 (a) Photographing lineups, producing photographs used in photo spreads, and pre-viewing instructions to witnesses .................................................................... 38 (b) The current procedures used by Illinois law enforcement in conducting lineups and photo spreads39 (c) The Committee's recommendation to use blind methods when using photo spreads for eyewitness identifications .............................................................. 39 (d) The Governor's Commission recommendation regarding the use of sequential rather than simultaneous procedures for eyewitness identifications, and the resulting statutory pilot program .................... 44 (e) Professional criticisms of the Illinois pilot program, and information recently revealed about the methodology used in the Evanston Police Department .................... 48 (f) The Committee's recommendation regarding the use of sequential identification procedures ........................... 55 (g) The Committee's recommendation regarding audio- video recordings of lineup and photo spread procedures56 (h) Training for administrators of lineups and photo spreads59 (i) Technology for construction of photo spreads ............ 60 6. Reforms related to selection of cases for capital punishment61 (a) The capital-eligibility factors ........................................ 62 (b) The use of the Attorney General-ISAA Guidelines by Illinois State's Attorneys when exercising discretion in selecting cases in which the death penalty will be sought ......................................................................... 68 (c) Pre-decision meetings between prosecutors and defense lawyers .......................................................... 71 (d) The formation of a statewide panel to review State's Attorneys' decisions to seek capital punishment- geographic and racial disparities ................................ 75 11 7. The financial consequences of the various reforms on the costs of the Illinois capital punishment system ................... 80 8. Incremental, additional costs of the Illinois capital punishment system - the Capital Litigation Trust Fund ....... 82 (a) The Illinois Capital Litigation Trust Fund ..................... 83 (b) Examples of incremental costs of capital cases ......... 85 (c) A partial analysis of the frequency with which Notices of Intent to seek capital punishment have been withdrawn before trials, or which result in acquittals or convictions of offenses for which capital punishment is not a statutory punishment. .................................................. 87 (d) Recommendations regarding the selection of cases for capital punishment, and the authority of the trial judge and the Illinois Supreme Court to review capital sentences .................................................................... 93 (e) Other states' studies of incremental, additional costs of capital punishment cases ............................................ 95 9. Other consequences of the Illinois capital punishment system ................................................................................. 97 (a) The switch of costs from a county to the State when the death penalty is involved ............................................. 97 (b) The additional costs incurred by Public Defenders in capital cases, and effects on their budgets and their abilities to properly represent their indigent clients ..... 99 (c) The relative balance of bargaining positions during plea negotiations in capital cases ..................................... 105 (d) The risk of geographic and racial disparities ............ 108 III (e) Damages paid to men wrongfully convicted and sentenced to death, 1989 through 2009 ................... 109 10. Reforms related to the Capital Litigation Trust Fund ........ 110 (a) Abuses of the CL TF by appointed defense lawyers. 110 (b) Use of CL TF funds for forensic testing ..................... 112 (c) Appropriation of CL TF funds for downstate prosecutors and defense lawyers ................................................. 112 (d) Availability of CL TF funds for victims' services ......... 113 11. Reforms related to training of prosecutors and defense lawyers - the Capital Litigation Trial Bar ........................... 113 (a) The quality of representation in capital cases ........... 114 (b) The difficulty in obtaining defense lawyers in some downstate counties ................................................... 116 12. Reforms related to trial preparation .................................. 118 (a) Discovery depositions ............................................... 118 (b) Pretrial hearings regarding informants ...................... 121 (c) Case management conferences ............................... 122 13. Reforms related to trial judges, and reports of their experiences in capital cases ............................................. 122 (a) Training ..................................................................... 122 (b) Control of prosecution and defense budgets ............ 124 (c) The quality of evidence used during capital prosecutions .............................................................. 124 14. Reforms related to jury instructions and jury questionnaires125 IV (a) Jury instructions regarding testimony of jailhouse informants ................................................................. 126 (b) Jury instructions regarding testimony as to what defendant said about the crime ................................. 127 (c) Jury instruction regarding testimony of eyewitnesses128 (d) Jury instructions related to the penalty hearing ........ 129 (e) Jury questionnaires ................................................... 130 15. Racial and geographic disparities in the application of the death penalty in Illinois, 2003 through 2009 ..................... 131 (a) The General Assembly's direction to this Committee respecting discrimination in the application of the death penalty ...................................................................... 131 (b) The Governor's Commission experts' findings of geographic and racial discrimination in application of the death penalty in Illinois ........................................ 131 (c) The recommendations of the Governor's Commission experts regarding geographic and racial disparities in the application of the death penalty .......................... 132 (d) This Committee's findings regarding geographic and racial discrimination .................................................. 133 16. Reforms related to judicial review of capital sentences .... 134 (a) The Governor's Commission proposal regarding the power of trial judges to overturn capital sentences imposed by juries ...................................................... 134 (b) The Governor's Commission proposal to expand the powers of the Illinois Supreme Court when reviewing capital cases ............................................................. 135 v (c) This Committee's recommendations concerning collection of data needed for the Supreme Court to conduct comparative proportionality review .............. 139 (d) The Capital Crimes Database Act. ............................ 140 17. Reforms related to Illinois forensic laboratories ................ 142 (a) A description of the Illinois forensic laboratory system143 (b) The Governor's Commission's recommendations, and action taken to implement them ................................ 145 (c) This Committee's recommendations regarding funding for State labs ............................................................. 147 18. Reforms related to the families of Illinois homicide victims150 (a) Introduction ............................................................... 150 (b) Existing resources and programs for victims ............ 151 (c) Witnesses' statements regarding the shortcomings of the present
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