Judiciary II - Criminal Law Committee
Filed: 5/7/2008
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1 | AMENDMENT TO HOUSE BILL 5032
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2 | AMENDMENT NO. ______. Amend House Bill 5032 by inserting | ||||||
3 | after the title the following:
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4 | "WHEREAS, Factual claims of torture, which are determined | ||||||
5 | to be credible, can most effectively and efficiently be | ||||||
6 | evaluated through complete and independent investigation and | ||||||
7 | review of the same; therefore"; and | ||||||
8 | by replacing everything after the enacting clause with the | ||||||
9 | following:
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10 | "Section 1. Short title. This Act may be cited as the | ||||||
11 | Illinois Torture Inquiry and Relief Commission Act. | ||||||
12 | Section 5. Definitions. As used in this Act: | ||||||
13 | (1) "Claim of torture" means a claim on behalf of
a living | ||||||
14 | person convicted of a felony in Illinois asserting that
he was | ||||||
15 | tortured into confessing to the crime
for which the person was |
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1 | convicted and the tortured confession was used to obtain the | ||||||
2 | conviction
and for
which there is some credible evidence
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3 | related to allegations of torture committed by
Commander Jon | ||||||
4 | Burge or any officer under the supervision of Jon
Burge.
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5 | (2) "Commission" means the Illinois Torture Inquiry and | ||||||
6 | Relief Commission established by this Act. | ||||||
7 | (3) "Director" means the Director of the Illinois Torture | ||||||
8 | Inquiry and Relief Commission. | ||||||
9 | (4) "Victim" means the victim of the crime, or if the | ||||||
10 | victim of the crime is deceased, the next of kin of the victim. | ||||||
11 | Section 10. Purpose of Act. This Act establishes an | ||||||
12 | extraordinary procedure to investigate and determine factual | ||||||
13 | claims of torture related to allegations of torture that shall | ||||||
14 | require an individual to voluntarily waive rights and | ||||||
15 | privileges as described in this Act. | ||||||
16 | Section 15. Commission established. | ||||||
17 | (a) There is established the Illinois Torture and Relief | ||||||
18 | Inquiry Commission. The Illinois Torture Relief Inquiry | ||||||
19 | Commission shall be an independent commission under the | ||||||
20 | Administrative Office of the Illinois Courts for | ||||||
21 | administrative purposes. | ||||||
22 | (b) The Administrative Office of the Illinois Courts shall | ||||||
23 | provide administrative support to the Commission as needed. The | ||||||
24 | Director of the Administrative Office of the Illinois Courts |
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1 | shall not reduce or modify the budget of the Commission or use | ||||||
2 | funds appropriated to the Commission without the approval of | ||||||
3 | the Commission. | ||||||
4 | Section 20. Membership; chair; meetings; quorum. | ||||||
5 | (a) The Commission shall consist of 8 voting members as | ||||||
6 | follows: | ||||||
7 | (1) One shall be a Circuit Court Judge, with 10 years | ||||||
8 | or less seniority. | ||||||
9 | (2) One shall be a former prosecuting attorney. | ||||||
10 | (3) One shall be a law school professor. | ||||||
11 | (4) One shall be engaged in the practice of criminal | ||||||
12 | defense law. | ||||||
13 | (5) Three shall be members of the public who are not | ||||||
14 | attorneys
and who are not officers or employees of the | ||||||
15 | Judicial
branch.
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16 | (6) One shall be a former public defender. | ||||||
17 | The Commission shall be appointed as follows: | ||||||
18 | 2 members appointed by the Governor; | ||||||
19 | 2 members appointed by the President of the Senate; | ||||||
20 | One member appointed by the Minority Leader of the | ||||||
21 | Senate; | ||||||
22 | 2 members appointed by the Speaker of the House of | ||||||
23 | Representatives; and | ||||||
24 | One member appointed by the Minority Leader of the | ||||||
25 | House of Representatives. |
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1 | After an appointee has served his or her first 3-year term, | ||||||
2 | the subsequent appointment or reappointment may be by the | ||||||
3 | initial appointing authority. | ||||||
4 | (a-1) The appointing authority shall also appoint | ||||||
5 | alternate Commission members for the Commission members he or | ||||||
6 | she has appointed to serve in the event of scheduling | ||||||
7 | conflicts, conflicts of interest, disability, or other | ||||||
8 | disqualification arising in a particular case. The alternate | ||||||
9 | members shall have the same qualifications for appointment as | ||||||
10 | the original member. In making the appointments, the appointing | ||||||
11 | authority shall make a good faith effort to appoint members | ||||||
12 | with different perspectives of the justice system. The | ||||||
13 | appointing authority shall also consider geographical | ||||||
14 | location, gender, and racial diversity in making the | ||||||
15 | appointments. | ||||||
16 | (b) The judge who is appointed as a member under subsection | ||||||
17 | (a) shall serve as Chair of the Commission. The Commission | ||||||
18 | shall have its initial meeting no later than January 31, 2009, | ||||||
19 | at the call of the Chair. The Commission shall meet a minimum | ||||||
20 | of once every 6 months and may also meet more often at the call | ||||||
21 | of the Chair. The Commission shall meet at such time and place | ||||||
22 | as designated by the Chair. Notice of the meetings shall be | ||||||
23 | given at such time and manner as provided by the rules of the | ||||||
24 | Commission. A majority of the members shall constitute a | ||||||
25 | quorum. All Commission votes shall be by majority vote. |
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1 | Section 25. Terms of members; compensation; expenses. | ||||||
2 | (a) Of the initial members, 2 appointments shall be for | ||||||
3 | one-year terms, 3 appointments shall be for 2-year terms, and 3 | ||||||
4 | appointments shall be for 3-year terms. Thereafter, all terms | ||||||
5 | shall be for 3 years. Members of the Commission shall serve no | ||||||
6 | more than 2 consecutive 3-year terms plus any initial term of | ||||||
7 | less than 3 years. Unless provided otherwise by this Act, all | ||||||
8 | terms of members shall begin on January 1 and end on December | ||||||
9 | 31. | ||||||
10 | Members serving by virtue of elective or appointive office, | ||||||
11 | may serve only so long as the office holders hold those | ||||||
12 | respective offices. The Chief Judge of the Cook County Circuit | ||||||
13 | Court may remove members, with cause. Vacancies occurring | ||||||
14 | before the expiration of a term shall be filled in the manner | ||||||
15 | provided for the members first appointed. | ||||||
16 | (b) The Commission members shall receive no salary for | ||||||
17 | serving. All Commission members shall receive necessary | ||||||
18 | subsistence and travel expenses. | ||||||
19 | Section 30. Director and other staff. The Commission shall | ||||||
20 | employ a Director. The Director shall be an attorney licensed | ||||||
21 | to practice in Illinois at the time of appointment and at all | ||||||
22 | times during service as Director. The Director shall assist the | ||||||
23 | Commission in developing rules and standards for cases accepted | ||||||
24 | for review, coordinate investigation of cases accepted for | ||||||
25 | review, maintain records for all cases investigations, prepare |
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1 | reports outlining Commission investigations and | ||||||
2 | recommendations to the trial court, and apply for and accept on | ||||||
3 | behalf of the Commission any funds that may become available | ||||||
4 | from government grants, private gifts, donations, or bequests | ||||||
5 | from any source. | ||||||
6 | Subject to the approval of the Chair, the Director shall | ||||||
7 | employ such other staff and shall contract for services as is | ||||||
8 | necessary to assist the Commission in the performance of its | ||||||
9 | duties, and as funds permit. | ||||||
10 | The Commission may meet in an area provided by the | ||||||
11 | Administrative Office of the Illinois Courts. The | ||||||
12 | Administrative Office of the Illinois Courts shall provide | ||||||
13 | office space for the Commission and the Commission staff. | ||||||
14 | Section 35. Duties. The Commission shall have the following | ||||||
15 | duties and powers: | ||||||
16 | (1) To establish the criteria and screening process to | ||||||
17 | be used to determine which cases shall be accepted for | ||||||
18 | review. | ||||||
19 | (2) To conduct inquiries into claims of torture with | ||||||
20 | priority to be given to those cases in which the convicted | ||||||
21 | person is currently incarcerated solely for the crime to | ||||||
22 | which he or she claims torture by Jon Burge or officers | ||||||
23 | under his command, or both. | ||||||
24 | (3) To coordinate the investigation of cases accepted | ||||||
25 | for review. |
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1 | (4) To maintain records for all case investigations. | ||||||
2 | (5) To prepare written reports outlining Commission | ||||||
3 | investigations and recommendations to the trial court at | ||||||
4 | the completion of each inquiry. | ||||||
5 | (6) To apply for and accept any funds that may become | ||||||
6 | available for the Commission's work from government | ||||||
7 | grants, private gifts, donations, or bequests from any | ||||||
8 | source. | ||||||
9 | Section 40. Claims of torture; waiver of convicted person's | ||||||
10 | procedural safeguards and privileges; formal inquiry; | ||||||
11 | notification of the crime victim. | ||||||
12 | (a) A claim of torture may be referred to the Commission by | ||||||
13 | any court, person, or agency. The Commission shall not consider | ||||||
14 | a claim of torture if the convicted person is deceased. The | ||||||
15 | determination of whether to grant a formal inquiry regarding | ||||||
16 | any other claim of torture is in the discretion of the | ||||||
17 | Commission. The Commission may informally screen and dismiss a | ||||||
18 | case summarily at its discretion. | ||||||
19 | (b) No formal inquiry into a claim of torture shall be made | ||||||
20 | by the Commission unless the Director or the Director's | ||||||
21 | designee first obtains a signed agreement from the convicted | ||||||
22 | person in which the convicted person waives his or her | ||||||
23 | procedural safeguard and privileges, agrees to cooperate with | ||||||
24 | the Commission, and agrees to provide full disclosure regarding | ||||||
25 | inquiry requirements of the Commission. The Waver under this |
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1 | subsection does not apply to matters unrelated to a convicted | ||||||
2 | person's claim of torture. The convicted person shall have the | ||||||
3 | right to advice of counsel prior to the execution of the | ||||||
4 | agreement and, if a formal inquiry is granted, throughout the | ||||||
5 | formal inquiry. If counsel represents the convicted person, | ||||||
6 | then the convicted person's counsel must be present at the | ||||||
7 | signing of the agreement. If counsel does not represent the | ||||||
8 | convicted person, the Commission Chair shall determine the | ||||||
9 | convicted person's indigency status and, if appropriate, enter | ||||||
10 | an order for the appointment of counsel for the purpose of | ||||||
11 | advising on the agreement. | ||||||
12 | (c) If a formal inquiry regarding a claim of torture is | ||||||
13 | granted, the Director shall use all due diligence to notify the | ||||||
14 | victim in the case and explain the inquiry process. The | ||||||
15 | Commission shall give the victim notice that the victim has the | ||||||
16 | right to present his or her views and concerns throughout the | ||||||
17 | Commission's investigation. | ||||||
18 | (d) The Commission may use any measure provided in the Code | ||||||
19 | of Civil Procedure and the Code of Criminal Procedure of 1963 | ||||||
20 | to obtain information necessary to its inquiry. The Commission | ||||||
21 | may also do any of the following: issue process to compel the | ||||||
22 | attendance of witnesses and the production of evidence, | ||||||
23 | administer oaths, petition the Circuit Court of Cook County or | ||||||
24 | of the original jurisdiction for enforcement of process or for | ||||||
25 | other relief, and prescribe its own rules of procedure. All | ||||||
26 | challenges with regard to the Commission's authority or the |
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1 | Commission's access to evidence shall be heard by the | ||||||
2 | Commission Chair in the Chair's judicial capacity, including | ||||||
3 | any in camera review. | ||||||
4 | (e) While performing duties for the Commission, the | ||||||
5 | Director or the Director's designee may serve subpoenas or | ||||||
6 | other process issued by the Commission throughout the State in | ||||||
7 | the same manner and with the same effect as an officer | ||||||
8 | authorized to serve process under the laws of this State. | ||||||
9 | (f) All State discovery and disclosure statutes in effect | ||||||
10 | at the time of formal inquiry shall be enforceable as if the | ||||||
11 | convicted person were currently being tried for the charge for | ||||||
12 | which the convicted person is claiming torture. | ||||||
13 | (g) If, at any point during an inquiry, the convicted | ||||||
14 | person refuses to comply with requests of the Commission or is | ||||||
15 | otherwise deemed to be uncooperative by the Commission, the | ||||||
16 | Commission shall discontinue the inquiry. | ||||||
17 | Section 45. Commission proceedings. | ||||||
18 | (a) At the completion of a formal inquiry, all relevant | ||||||
19 | evidence shall be presented to the full Commission. As part of | ||||||
20 | its proceedings, the Commission may conduct public hearings. | ||||||
21 | The determination as to whether to conduct public hearings is | ||||||
22 | solely in the discretion of the Commission. Any public hearing | ||||||
23 | held in accordance with this Section shall be subject to the | ||||||
24 | Commission's rules of operation. | ||||||
25 | (b) The Director shall use all due diligence to notify the |
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1 | victim at least 30 days prior to any proceedings of the full | ||||||
2 | Commission held in regard to the victim's case. The Commission | ||||||
3 | shall notify the victim that the victim is permitted to attend | ||||||
4 | proceedings otherwise closed to the public, subject to any | ||||||
5 | limitations imposed by this Act, If the victim plans to attend | ||||||
6 | proceedings otherwise closed to the public, the victim shall | ||||||
7 | notify the Commission at least 10 days in advance of the | ||||||
8 | proceedings of his or her intent to attend. If the Commission | ||||||
9 | determines that the victim's presence may interfere with the | ||||||
10 | investigation, the Commission may close any portion of the | ||||||
11 | proceedings to the victim. | ||||||
12 | (c) After hearing the evidence, the full Commission shall | ||||||
13 | vote to establish further case disposition as provided by this | ||||||
14 | subsection. All 8 voting members of the Commission shall | ||||||
15 | participate in that vote. | ||||||
16 | If 5 or more of the 8 voting members of the Commission | ||||||
17 | conclude there is sufficient evidence of torture to merit | ||||||
18 | judicial review, the case shall be referred to the Chief Judge | ||||||
19 | of the Circuit Court of Cook County by filing with the clerk of | ||||||
20 | court the opinion of the Commission with supporting findings of | ||||||
21 | fact, as well as the record in support of such opinion, with | ||||||
22 | service on the State's Attorney if another State's Attorney is | ||||||
23 | appointed other than Richard Devine in non-capital cases and | ||||||
24 | service on both the State's Attorney and Attorney General in | ||||||
25 | capital cases. | ||||||
26 | If less than 5 of the 8 voting members of the Commission |
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1 | conclude there is insufficient evidence of torture to merit | ||||||
2 | judicial review, the Commission shall conclude there is | ||||||
3 | insufficient evidence of torture to merit judicial review. The | ||||||
4 | Commission shall document that opinion, along with supporting | ||||||
5 | findings of fact, and file those documents and supporting | ||||||
6 | materials with the court clerk in the circuit of original | ||||||
7 | jurisdiction, with a copy to the State's Attorney and the chief | ||||||
8 | judge. | ||||||
9 | The Director of the Commission shall use all due diligence | ||||||
10 | to notify immediately the victim of the Commission's conclusion | ||||||
11 | in a case. | ||||||
12 | (d) Evidence of criminal acts, professional misconduct, or | ||||||
13 | other wrongdoing disclosed through formal inquiry or | ||||||
14 | Commission proceedings shall be referred to the appropriate | ||||||
15 | authority. Evidence favorable to the convicted person | ||||||
16 | disclosed through formal inquiry or Commission proceedings | ||||||
17 | shall be disclosed to the convicted person and the convicted | ||||||
18 | person's counsel, if the convicted person has counsel. | ||||||
19 | (e) All proceedings, of the Commission shall be recorded | ||||||
20 | and transcribed as part of the record. All Commission member | ||||||
21 | votes shall be recorded in the record. All records and | ||||||
22 | proceedings of the Commission are confidential and are exempt | ||||||
23 | from public record and public meeting laws except that the | ||||||
24 | supporting records for the Commission's conclusion that there | ||||||
25 | is sufficient evidence of torture to merit judicial review, | ||||||
26 | including all files and materials considered by the Commission |
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1 | and an full transcript of the hearing before the Commission, | ||||||
2 | shall become public at the time of referral to the court. | ||||||
3 | Commission records for conclusions of insufficient evidence of | ||||||
4 | torture to merit judicial review shall remain confidential, | ||||||
5 | except as provided in subsection (d). | ||||||
6 | Section 50. Post-commission judicial review. | ||||||
7 | (a) If the Commission concludes there is sufficient | ||||||
8 | evidence of torture to merit judicial review, the
Chair of the | ||||||
9 | Commission shall request the Chief Judge of the Circuit Court | ||||||
10 | of Cook County for assignment to a trial judge for | ||||||
11 | consideration. The court may receive proof by affidavits, | ||||||
12 | depositions, oral testimony, or other evidence. In its | ||||||
13 | discretion the court may order the petitioner brought before | ||||||
14 | the court for the hearing. If the court finds in favor of the | ||||||
15 | petitioner, it shall enter an appropriate order with respect to | ||||||
16 | the judgment or sentence in the former proceedings and such | ||||||
17 | supplementary orders as to rearraignment, retrial, custody, | ||||||
18 | bail or discharge as may be necessary and proper.
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19 | (b) The State's Attorney, or the State's Attorney's | ||||||
20 | designee, shall represent the State at the hearing before the | ||||||
21 | Assigned judge. | ||||||
22 | Section 55. No right to further review of decision by | ||||||
23 | Commission; convicted person retains right to other | ||||||
24 | postconviction relief. |
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1 | (a) Unless otherwise authorized by this Act, the decisions | ||||||
2 | of the Commission are final and are subject to further review | ||||||
3 | by appeal, certification, writ, motion, or otherwise. | ||||||
4 | (b) A claim of torture asserted through the Commission | ||||||
5 | shall not adversely affect the convicted person's rights to | ||||||
6 | other post conviction relief.
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7 | Section 60. In order to allow staggered terms of members of | ||||||
8 | the Illinois Torture Inquiry and Relief Commission, the | ||||||
9 | Commission members identified in paragraphs (1), (2), and (4) | ||||||
10 | of subsection (a) of Section 20 shall be appointed to initial | ||||||
11 | terms of 2 years, the Commission members identified in | ||||||
12 | paragraph (5) of subsection (a) of Section 20 shall be | ||||||
13 | appointed to initial terms of 3 years, and the Commission | ||||||
14 | members identified in paragraph (3) and (6) of subsection (a) | ||||||
15 | of Section 20 shall be appointed to initial terms of one year. | ||||||
16 | Section 65. Beginning January 1, 2010, and annually | ||||||
17 | thereafter, the Illinois Torture and Inquiry Relief Commission | ||||||
18 | shall report on its activities to the General Assembly and the | ||||||
19 | Governor. The report may contain recommendations of any needed | ||||||
20 | legislative changes related to the activities of the | ||||||
21 | Commission. The report shall recommend the funding needed by | ||||||
22 | the Commission, the State's Attorneys, and the Department of | ||||||
23 | State Police in order to meet their responsibilities under this | ||||||
24 | Act. Recommendations concerning the State's Attorneys or the |
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1 | Department of State Police shall only be made after | ||||||
2 | consultations with the Illinois State's Attorneys Association | ||||||
3 | and the Attorney General. | ||||||
4 | Section 70. The Administrative Office of the Illinois | ||||||
5 | Courts shall report to the General Assembly and the Chief | ||||||
6 | Justice no later than December 31, 2011, and no later than | ||||||
7 | December 31 of every third year, regarding the implementation | ||||||
8 | of this Act and shall include in its report the statistics | ||||||
9 | regarding inquiries and any recommendations for changes. The | ||||||
10 | House of Representatives and the Senate shall refer the report | ||||||
11 | to the appropriate committees for their review. | ||||||
12 | Section 75. The initial members of the Illinois Torture | ||||||
13 | Inquiry and Relief Commission shall be appointed not later than | ||||||
14 | October 1, 2008. No claims of torture may be filed with the | ||||||
15 | Commission until November 1, 2008. | ||||||
16 | Section 80. This Act applies to claims of torture filed on | ||||||
17 | or before December 31, 2013.
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18 | Section 99. Effective date. This Act takes effect upon | ||||||
19 | becoming law.".
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