SPRINGFIELD --
The Illinois House overwhelmingly approved
a sweeping legislative package Thursday designed to crack down
on wrongful convictions and misconduct by prosecutors.
The action moved Illinois toward becoming the first state
to adopt a law that would put strict limits on the testimony
of jailhouse informants, whose goal of shortening their
sentences by providing testimony for prosecutors often has
prompted them to twist the truth at the expense of justice.
The legislation also
would place a new burden on prosecutors who fail to turn over
evidence to defense lawyers. Unless prosecutors can show that
the evidence would not have affected the trial or sentencing,
the outcomes could be set aside. Current law requires the
defense to prove the outcome would have been different.
Further, the package gives a person facing charges that
carry a potential death sentence or term of life in prison the
chance to challenge the veracity of witnesses by taking
depositions before trial. This provision would also be a
legislative first for Illinois, although Florida and Indiana
have had more expansive laws since the 1960s.
Rep. Jim Durkin, the Westchester Republican who sponsored
the legislation, argued the three-bill package is necessary to
provide tools to defense lawyers faced with weeding out
potentially explosive evidence in which there are serious
questions of credibility.
"Jailhouse informant testimony always should be looked at
with a jaundiced eye," Durkin said. "There's a question of
reliability."
The legislation would require pretrial reliability hearings
before prosecutors would be allowed to put jailhouse
informants on the witness stand at trial. The hearings would
be conducted by the judge in the case, who would rule on
whether the testimony was sufficiently reliable to present at
trial.
Tom Geraghty, supervisor of Northwestern University Law
School legal clinic, said the bills "if passed into law would
be a major step forward in ensuring that prosecutions in
serious criminal cases are fair and that defendants have an
adequate opportunity to conduct investigations."
Durkin said the package would make good cases better and
expose the bad ones for what they are.
He said allowing depositions, or pretrial interviews under
oath, of all witnesses except police officers would correct an
imbalance between civil lawsuits and criminal prosecutions.
"If you're injured in a fender bender at the corner of
State and Madison, you can depose everyone who's at that
location at that time and ask them what their observations
were of the accident," Durkin said. "However, if you are
accused of a terrible crime--murder--in which you are subject
to capital punishment and you are identified by one or two
witnesses as the person who pulled the trigger, you don't have
an opportunity to depose those witnesses."
Veteran criminal defense attorney Sam Adam said the
provision allowing pretrial depositions should have included
police officers because they are among the most frequent and
important prosecution witnesses. He also said the provision
likely would lead to fewer trials because defense lawyers
would be able to better assess the evidence and decide whether
a plea bargain is more appropriate.
Five of the 13 defendants released from Death Row in
Illinois since the death penalty was reinstated in 1976 were
convicted in part on the basis of testimony from jailhouse
informants.
"We've come dangerously close in Illinois over the past
three years of executing innocent individuals," Durkin said.
"We have a legislative and a moral obligation to make changes
in this system."Also, in the long run, it's going to make
cases better so the culpable person will be prosecuted and the
innocent man won't have to wait 15 years to be exonerated."
Durkin, a former Cook County prosecutor weighing a possible
bid for attorney general, chaired a House Special Committee on
Prosecutorial Misconduct formed after a Tribune series that
detailed nearly 400 murder convictions set aside nationwide
because of prosecutor misconduct. The series also showed that
from 1979 through 1999, on average, a Cook County conviction
was overturned once a month because of prosecutor misconduct.
The fate of the Durkin package is less certain in the
Senate, where the Republican-controlled chamber has a tendency
to favor prosecutors and may want to dilute some of the
provisions.
"It's like giving ammunition to the enemy," Senate
President James "Pate" Philip (R-Wood Dale) said, adding that
he wanted to talk to Atty. Gen. Jim Ryan and DuPage County
State's Atty. Joseph Birkett. "We'll look at it. We'll give it
a hearing. But I'm assuming we're going to change some of that
stuff, but I don't know at this point. The House is much more
liberal than we are. We'll look at it objectively."
Last September, Cook County State's Atty. Richard Devine
and Birkett appeared at a hearing of Durkin's committee to
oppose his proposals, saying the legislation was unnecessarily
duplicative of court rules and laws already in place. They
contended prosecutorial misconduct rarely occurs and current
safeguards were sufficient to protect defendants.
The legislation does have support from some members of law
enforcement, including Cook County Sheriff Michael Sheahan,
Kane County Sheriff Ken Ramsey and the Illinois Association of
Police Chiefs.
Major Illinois cases that raised questions about jailhouse
statements include the DuPage County prosecution of Rolando
Cruz, a case in which he was sentenced to death but later set
free. And the Ford Heights Four case, which cost Cook County
$26 million in damages when the defendants were exonerated,
illustrates the high price of bad prosecutions.
Last year, when Gov. George Ryan issued a moratorium on
executions in Illinois, he cited concerns over the use of
jailhouse informants along with "bad lawyers and overzealous
prosecutors." He has a task force studying the issue and
expects the group to come up with recommendations.
The governor said Durkin's package is "headed in the right
direction."
"Now whether it will address all of the issues that my
commission is interested in, that's another question," Ryan
said.
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