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