HB3318 97TH GENERAL ASSEMBLY

LRB097 09308 RLC 49443 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3318

Introduced 2/24/2011, by Rep. Bill Mitchell

SYNOPSIS AS INTRODUCED:

See Index

Provides that if and only if the provisions of Senate Bill 3539 of the 96th General Assembly become law, creates the First Degree Murder Litigation Act. Provides that if an indigent defendant is charged with first degree murder and the State's Attorney has not filed a certificate indicating he or she will seek a plea negotiation to reduce the charges from first degree murder to a lesser offense or stated on the record in open court that he or she will seek a plea negotiation to reduce the charges from first degree murder to a lesser offense, the trial court shall immediately appoint the Public Defender, or such other qualified attorney or attorneys as the Illinois Supreme Court shall by rule provide, to represent the defendant. If the Public Defender is appointed he or she shall immediately assign the attorney or attorneys to represent the defendant. Provides that the assigned attorneys shall meet the qualifications as the Supreme Court shall by rule provide. Provides that the assigned attorneys shall receive compensation at a rate not to exceed $125 per hour, adjusted annually for inflation. Creates the First Degree Murder Litigation Trust Fund as a special fund in the State treasury. Provides that money deposited into the Trust Fund shall be used exclusively for the purposes of providing funding for the pre-trial, trial, and post-conviction review in the prosecution and defense of first degree murder cases and shall not be appropriated, loaned, or in any manner transferred to the General Revenue Fund of the State of Illinois. Amends various Acts to make conforming changes.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning first degree murder.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the First Degree Murder Litigation Act.

Section 5. Appointment of trial counsel in first degree murder cases. If an indigent defendant is charged with first degree murder, and the State's Attorney has not, at or before arraignment, filed a certificate indicating he or she will seek a plea negotiation to reduce the charges from first degree murder to a lesser offense or stated on the record in open court that he or she will seek a plea negotiation to reduce the charges from first degree murder to a lesser offense, the trial court shall immediately appoint the Public Defender, or such other qualified attorney or attorneys as the Illinois Supreme Court shall by rule provide, to represent the defendant as trial counsel. If the Public Defender is appointed, he or she shall immediately assign such attorney or attorneys who are public defenders to represent the defendant. The counsel shall meet the qualifications as the Supreme Court shall by rule provide. At the request of court appointed counsel in a case in which first degree murder charges are sought, attorneys employed by the State Appellate Defender may enter an appearance for the limited purpose of assisting counsel appointed under this Section.

Section 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 seek a plea negotiation to reduce the charges from first degree murder to a lesser offense or stated on the record in open court that he or she will seek a plea negotiation to reduce the charges from first degree murder to a lesser offense.

(a-5) Litigation budget.

(1) In a case in which the State has filed a statement of intent to seek a first degree murder prosecution, the court shall require appointed counsel, including those appointed in Cook County, after counsel has had adequate time to review the case and prior to engaging trial assistance, to submit a proposed estimated litigation budget for court approval that will be subject to modification in light of facts and developments that emerge as the case proceeds. Case budgets should be submitted ex parte and filed and maintained under seal in order to protect the defendant's right to effective assistance of counsel, right not to incriminate him or herself, and all applicable privileges. Case budgets shall be reviewed and approved by the judge assigned to try the case. As provided under subsection (c) of this Section, petitions for compensation shall be reviewed by both the trial judge and the presiding judge or the presiding judge's designee.

(2) The litigation budget shall serve purposes comparable to those of private retainer agreements by confirming both the court's and the attorney's expectations regarding fees and expenses. Consideration should be given to employing an ex parte pretrial conference in order to facilitate reaching agreement on a litigation budget at the earliest opportunity.

(3) The budget shall be incorporated into a sealed initial pretrial order that reflects the understandings of the court and counsel regarding all matters affecting counsel compensation and reimbursement and payments for investigative, expert and other services, including but not limited to the following matters:

(A) the hourly rate at which counsel will be compensated;

(B) the hourly rate at which private investigators, other than investigators employed by the Office of the State Appellate Defender, will be compensated; and

(C) the best preliminary estimate that can be made of the cost of all services, including, but not limited to, counsel, expert, and investigative services, that are likely to be needed through the guilt and penalty phases of the trial. The court shall have discretion to require that budgets be prepared for shorter intervals of time.

(4) Appointed counsel may obtain, subject to later review, investigative, expert, or other services without prior authorization if necessary for an adequate defense. If such services are obtained, the presiding judge or the presiding judge's designee shall consider in an ex parte proceeding that timely procurement of necessary services could not await prior authorization. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge prior to modifying a budget, the ex parte hearing shall be before the presiding judge or the presiding judge's designee. The judge may then authorize such services nunc pro tunc. If the presiding judge or the presiding judge's designee finds that the services were not reasonable, payment may be denied.

(5) An approved budget shall guide counsel's use of time and resources by indicating the services for which compensation is authorized. The case budget shall be re-evaluated when justified by changed or unexpected circumstances and shall be modified by the court when reasonable and necessary for an adequate defense. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge prior to modifying a budget, the ex parte hearing shall be before the presiding judge or the presiding judge's designee.

(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. The court shall not authorize payment of bills that are not properly itemized. A request for payment shall be presented under seal and reviewed ex parte with a court reporter present.

Beginning in 2013, 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.

(c) Appointed trial counsel may also petition the court for certification of expenses for reasonable and necessary first degree murder litigation expenses including, but not limited to, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists. Each provider of proposed services must specify the best preliminary estimate that can be made in light of information received in the case at that point, and the provider must sign this estimate under the provisions of Section 1-109 of the Code of Civil Procedure. A provider of proposed services must also specify (1) his or her hourly rate; (2) the hourly rate of anyone else in his or her employ for whom reimbursement is sought; and (3) the hourly rate of any person or entity that may be subcontracted to perform these services. 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. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. If the requests are submitted after services have been rendered, the requests shall be supported by an invoice describing the services rendered, the dates the services were performed and the amount of time spent. These petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information Act requests until the conclusion of the trial, even if the prosecution chooses not to pursue a first degree murder prosecution prior to trial. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge, the hearing shall be before the presiding judge or the presiding judge's designee.

(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. The petitions shall be supported by itemized bills showing the date, the amount of time spent, the work done, and the total being charged for each entry. The court shall not authorize payment of bills that are not properly itemized. The court must certify reasonable and necessary expenses of the petitioner for travel and per diem (lodging, meals, and incidental expenses). These expenses must be paid at the rate as promulgated by the United States General Services Administration for these expenses for the date and location in which they were incurred, unless extraordinary reasons are shown for the difference. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. The petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge, the ex parte hearing shall be before the presiding judge or the presiding judge's designee. If the court determines that the compensation and expenses should be paid from the First Degree Murder 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. The form must also be signed by lead trial counsel under the provisions of Section 1-109 of the Code of Civil Procedure verifying that the amount requested is reasonable, necessary, and appropriate. Bills submitted for payment by any individual or entity seeking payment from the First Degree Murder Litigation Trust Fund must also be accompanied by a form created by the State Treasurer and signed by the individual or responsible agent of the entity under the provisions of Section 1-109 of the Code of Civil Procedure that the amount requested is accurate and truthful and reflects time spent or expenses incurred. 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 must be paid by the State Treasurer directly from the First Degree Murder Litigation Trust Fund if there are sufficient moneys in the Trust Fund to pay the compensation and expenses. If the State Treasurer finds within 14 days of his or her receipt of a certification that the compensation and expenses to be paid are unreasonable, unnecessary, or inappropriate, he or she may return the certification to the court setting forth in detail the objection or objections with a request for the court to review the objection or objections before resubmitting the certification. The State Treasurer must send the claimant a copy of the objection or objections. The State Treasurer may only seek a review of a specific objection once. The claimant has 7 days from his or her receipt of the objections to file a response with the court. With or without further hearing, the court must promptly rule on the objections. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information Act requests until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue a first degree murder prosecution prior to trial. 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 First Degree Murder Litigation Trust Fund.

Section 15. First Degree Murder Litigation Trust Fund.

(a) The First Degree Murder Litigation Trust Fund is created as a special fund in the State treasury. The Trust Fund shall be administered by the State Treasurer to provide moneys for the appropriations to be made, grants to be awarded, and compensation and expenses to be paid under this Act. All interest earned from the investment or deposit of moneys accumulated in the Trust Fund shall, under Section 4.1 of the State Finance Act, be deposited into the Trust Fund.

(b) Moneys deposited into the Trust Fund shall not be considered general revenue of the State of Illinois.

(c) Moneys deposited into the Trust Fund shall be used exclusively for the purposes of providing funding for the prosecution and defense of first degree murder cases and for providing funding for post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases as provided in this Act and shall not be appropriated, loaned, or in any manner transferred to the General Revenue Fund of the State of Illinois.

(d) Every fiscal year the State Treasurer shall transfer from the General Revenue Fund to the First Degree Murder Litigation Trust Fund an amount equal to the full amount of moneys appropriated by the General Assembly (both by original and supplemental appropriation), less any unexpended balance from the previous fiscal year, from the First Degree Murder Litigation Trust Fund for the specific purpose of making funding available for the prosecution and defense of first degree murder cases and for the litigation expenses associated with post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases. The Public Defender and State's Attorney in Cook County, the State Appellate Defender, the State's Attorneys Appellate Prosecutor, and the Attorney General shall make annual requests for appropriations from the Trust Fund.

(1) The Public Defender in Cook County shall request appropriations to the State Treasurer for expenses incurred by the Public Defender and for funding for private appointed defense counsel in Cook County.

(2) The State's Attorney in Cook County shall request an appropriation to the State Treasurer for expenses incurred by the State's Attorney.

(3) The State Appellate Defender shall request a direct appropriation from the Trust Fund for expenses incurred by the State Appellate Defender in providing assistance to trial attorneys under item (c)(5) of Section 10 of the State Appellate Defender Act and for expenses incurred by the State Appellate Defender in representing petitioners in first degree murder cases in post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases and for the representation of those petitioners by attorneys approved by or contracted with the State Appellate Defender and an appropriation to the State Treasurer for payments from the Trust Fund for the defense of cases in counties other than Cook County.

(4) The State's Attorneys Appellate Prosecutor shall request a direct appropriation from the Trust Fund to pay expenses incurred by the State's Attorneys Appellate Prosecutor and an appropriation to the State Treasurer for payments from the Trust Fund for expenses incurred by State's Attorneys in counties other than Cook County.

(5) The Attorney General shall request a direct appropriation from the Trust Fund to pay expenses incurred by the Attorney General in assisting the State's Attorneys in counties other than Cook County and to pay for expenses incurred by the Attorney General when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases and for expenses incurred by the Attorney General in representing the State in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases.

The Public Defender and State's Attorney in Cook County, the State Appellate Defender, the State's Attorneys Appellate Prosecutor, and the Attorney General may each request supplemental appropriations from the Trust Fund during the fiscal year.

(e) Moneys in the Trust Fund shall be expended only as follows:

(1) To pay the State Treasurer's costs to administer the Trust Fund. The amount for this purpose may not exceed 5% in any one fiscal year of the amount otherwise appropriated from the Trust Fund in the same fiscal year.

(2) To pay the first degree murder litigation expenses of trial defense and post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases including, but not limited to, DNA testing, including DNA testing under Section 116-3 of the Code of Criminal Procedure of 1963, analysis, and expert testimony, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists, and grants and aid provided to public defenders, appellate defenders, and any attorney approved by or contracted with the State Appellate Defender representing petitioners in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases or assistance to attorneys who have been appointed by the court to represent defendants who are charged with first degree murder. Reasonable and necessary first degree murder litigation expenses include travel and per diem (lodging, meals, and incidental expenses).

(3) To pay the compensation of trial attorneys, other than public defenders or appellate defenders, who have been appointed by the court to represent defendants who are charged with first degree murder or attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases.

(4) To provide State's Attorneys with funding for first degree murder litigation expenses and for expenses of representing the State in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases including, but not limited to, investigatory and other assistance and expert, forensic, and other witnesses necessary to prosecute first degree murder cases. State's Attorneys in any county other than Cook County seeking funding for first degree murder litigation expenses and for expenses of representing the State in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases including, but not limited to, investigatory and other assistance and expert, forensic, or other witnesses under this Section may request that the State's Attorneys Appellate Prosecutor or the Attorney General, as the case may be, certify the expenses as reasonable, necessary, and appropriate for payment from the Trust Fund, on a form created by the State Treasurer. Upon certification of the expenses and delivery of the certification to the State Treasurer, the Treasurer shall pay the expenses directly from the First Degree Murder Litigation Trust Fund if there are sufficient moneys in the Trust Fund to pay the expenses.

(5) To provide financial support through the Attorney General pursuant to the Attorney General Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the Attorney General's Office, except when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases.

(6) To provide financial support through the State's Attorneys Appellate Prosecutor pursuant to the State's Attorneys Appellate Prosecutor's Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the State's Attorneys Appellate Prosecutor.

(7) To provide financial support to the State Appellate Defender pursuant to the State Appellate Defender Act.

Moneys expended from the Trust Fund shall be in addition to county funding for Public Defenders and State's Attorneys, and shall not be used to supplant or reduce ordinary and customary county funding.

(f) Moneys in the Trust Fund shall be appropriated to the State Appellate Defender, the State's Attorneys Appellate Prosecutor, the Attorney General, and the State Treasurer. The State Appellate Defender shall receive an appropriation from the Trust Fund to enable it to provide assistance to appointed defense counsel and attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases throughout the State and to Public Defenders in counties other than Cook. The State's Attorneys Appellate Prosecutor and the Attorney General shall receive appropriations from the Trust Fund to enable them to provide assistance to State's Attorneys in counties other than Cook County and when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases. Moneys shall be appropriated to the State Treasurer to enable the Treasurer (i) to make grants to Cook County, (ii) to pay the expenses of Public Defenders, the State Appellate Defender, the Attorney General, the Office of the State's Attorneys Appellate Prosecutor, and State's Attorneys in counties other than Cook County, (iii) to pay the expenses and compensation of appointed defense counsel and attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in first degree murder cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases in counties other than Cook County, and (iv) to pay the costs of administering the Trust Fund. All expenditures and grants made from the Trust Fund shall be subject to audit by the Auditor General.

(g) For Cook County, grants from the Trust Fund shall be made and administered as follows:

(1) For each State fiscal year, the State's Attorney and Public Defender must each make a separate application to the State Treasurer for first degree murder litigation grants.

(2) The State Treasurer shall establish rules and procedures for grant applications. The rules shall require the Cook County Treasurer as the grant recipient to report on a periodic basis to the State Treasurer how much of the grant has been expended, how much of the grant is remaining, and the purposes for which the grant has been used. The rules may also require the Cook County Treasurer to certify on a periodic basis that expenditures of the funds have been made for expenses that are reasonable, necessary, and appropriate for payment from the Trust Fund.

(3) The State Treasurer shall make the grants to the Cook County Treasurer as soon as possible after the beginning of the State fiscal year.

(4) The State's Attorney or Public Defender may apply for supplemental grants during the fiscal year.

(5) Grant moneys shall be paid to the Cook County Treasurer in block grants and held in separate accounts for the State's Attorney, the Public Defender, and court appointed defense counsel other than the Cook County Public Defender, respectively, for the designated fiscal year, and are not subject to county appropriation.

(6) Expenditure of grant moneys under this subsection (g) is subject to audit by the Auditor General.

(7) The Cook County Treasurer shall immediately make payment from the appropriate separate account in the county treasury for first degree murder litigation expenses to the State's Attorney, Public Defender, or court appointed defense counsel other than the Public Defender, as the case may be, upon order of the State's Attorney, Public Defender, or the court, respectively.

(h) If a defendant in a first degree murder case in Cook County is represented by court appointed counsel other than the Cook County Public Defender, the appointed counsel shall petition the court for an order directing the Cook County Treasurer to pay the court appointed counsel's reasonable and necessary compensation and first degree murder litigation expenses from grant moneys provided from the Trust Fund. The petitions shall be supported by itemized bills showing the date, the amount of time spent, the work done, and the total being charged for each entry. The court shall not authorize payment of bills that are not properly itemized. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. The petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information requests until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue a first degree murder prosecution prior to trial. Orders denying petitions for compensation or expenses are final. Counsel may not petition for 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.

(i) In counties other than Cook County, and when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases, and excluding first degree murder litigation expenses or services that may have been provided by the State Appellate Defender under item (c)(5) of Section 10 of the State Appellate Defender Act:

(1) Upon certification by the circuit court, on a form created by the State Treasurer, that all or a portion of the expenses are reasonable, necessary, and appropriate for payment from the Trust Fund and the court's delivery of the certification to the Treasurer, the Treasurer shall pay the certified expenses of Public Defenders and the State Appellate Defender from the money appropriated to the Treasurer for first degree murder litigation expenses of Public Defenders and post-conviction proceeding expenses in first degree murder cases of the State Appellate Defender and expenses in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases in any county other than Cook County, if there are sufficient moneys in the Trust Fund to pay the expenses.

(2) If a defendant in a first degree murder case is represented by court appointed counsel other than the Public Defender, the appointed counsel shall petition the court to certify compensation and first degree murder litigation expenses including, but not limited to, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists as reasonable, necessary, and appropriate for payment from the Trust Fund. If a petitioner in a first degree murder case who has filed a petition for post-conviction relief under Article 122 of the Code of Criminal Procedure of 1963 or a petition under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases is represented by an attorney approved by or contracted with the State Appellate Defender other than the State Appellate Defender, that attorney shall petition the court to certify compensation and litigation expenses of post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 or in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases. Upon certification on a form created by the State Treasurer of all or a portion of the compensation and expenses certified as reasonable, necessary, and appropriate for payment from the Trust Fund and the court's delivery of the certification to the Treasurer, the State Treasurer shall pay the certified compensation and expenses from the money appropriated to the Treasurer for that purpose, if there are sufficient moneys in the Trust Fund to make those payments.

(3) A petition for first degree murder litigation expenses or post-conviction proceeding expenses or expenses incurred in filing a petition under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder cases under this subsection shall be considered under seal and reviewed ex parte with a court reporter present. Orders denying petitions for compensation or expenses are final.

(j) If the Trust Fund is discontinued or dissolved by an Act of the General Assembly or by operation of law, any balance remaining in the Trust Fund shall be returned to the General Revenue Fund after deduction of administrative costs, any other provision of this Act to the contrary notwithstanding.

Section 20. Report. 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, 2016 detailing the amounts of money received by them through this Act, the uses for which those funds were expended, the balances then in the First Degree Murder 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.

Section 25. Operation of Act. This Act shall not become operational unless the provisions of Senate Bill 3539 of the 96th General Assembly become law.

Section 105. If and only if the provisions of Senate Bill 3539 of the 96th General Assembly become law, the Freedom of Information Act is amended by changing Section 7.5 as follows:

(5 ILCS 140/7.5)

Sec. 7.5. Statutory Exemptions. To the extent provided for by the statutes referenced below, the following shall be exempt from inspection and copying:

(a) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(b) Library circulation and order records identifying library users with specific materials under the Library Records Confidentiality Act.

(c) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(d) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(e) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(f) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(g) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(h) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act.

(i) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(j) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(k) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(l) Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.

(m) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(n) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the First Degree Murder Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue first degree murder charges the death penalty prior to trial or sentencing.

(o) Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.

(p) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(q) Information prohibited from being disclosed by the Personnel Records Review Act.

(r) Information prohibited from being disclosed by the Illinois School Student Records Act.

(s) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(t) All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Authority due to its administration of the Illinois Health Information Exchange. The terms "identified" and "deidentified" shall be given the same meaning as in the Health Insurance Accountability and Portability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.

(u) (t) Records and information provided to an independent team of experts under Brian's Law.

(Source: P.A. 96-542, eff. 1-1-10; 96-1235, eff. 1-1-11; 96-1331, eff. 7-27-10; revised 9-2-10.)

Section 110. If and only if the provisions of Senate Bill 3539 become law, the State Finance Act is amended by adding Section 5.786 as follows:

(30 ILCS 105/5.786 new)

Sec. 5.786. The First Degree Murder Litigation Trust Fund.

Section 115. If and only if the provisions of Senate Bill 3539 become law, the Counties Code is amended by changing Sections 3-4006.1 and 3-9005 as follows:

(55 ILCS 5/3-4006.1)

Sec. 3-4006.1. Powers and Duties of the Cook County Public Defender. For each State fiscal year, the Cook County Public Defender shall appear before the General Assembly and request appropriations to be made from the First Degree Murder Capital Litigation Trust Fund to the State Treasurer for the purpose of providing trial defense assistance in first degree murder capital cases. The Public Defender may appear before the General Assembly at other times during the State's fiscal year to request supplemental appropriations be made from the Trust Fund to the State Treasurer.

(Source: P.A. 91-589, eff. 1-1-00.)

(55 ILCS 5/3-9005) (from Ch. 34, par. 3-9005)

Sec. 3-9005. Powers and duties of State's attorney.

(a) The duty of each State's attorney shall be:

(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.

(2) To prosecute all forfeited bonds and recognizances, and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his county, or to any school district or road district in his county; also, to prosecute all suits in his county against railroad or transportation companies, which may be prosecuted in the name of the People of the State of Illinois.

(3) To commence and prosecute all actions and proceedings brought by any county officer in his official capacity.

(4) To defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county.

(5) To attend the examination of all persons brought before any judge on habeas corpus, when the prosecution is in his county.

(6) To attend before judges and prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court, when in his power so to do.

(7) To give his opinion, without fee or reward, to any county officer in his county, upon any question or law relating to any criminal or other matter, in which the people or the county may be concerned.

(8) To assist the attorney general whenever it may be necessary, and in cases of appeal from his county to the Supreme Court, to which it is the duty of the attorney general to attend, he shall furnish the attorney general at least 10 days before such is due to be filed, a manuscript of a proposed statement, brief and argument to be printed and filed on behalf of the people, prepared in accordance with the rules of the Supreme Court. However, if such brief, argument or other document is due to be filed by law or order of court within this 10 day period, then the State's attorney shall furnish such as soon as may be reasonable.

(9) To pay all moneys received by him in trust, without delay, to the officer who by law is entitled to the custody thereof.

(10) To notify, by first class mail, complaining witnesses of the ultimate disposition of the cases arising from an indictment or an information.

(11) To perform such other and further duties as may, from time to time, be enjoined on him by law.

(12) To appear in all proceedings by collectors of taxes against delinquent taxpayers for judgments to sell real estate, and see that all the necessary preliminary steps have been legally taken to make the judgment legal and binding.

(13) To notify, by first-class mail, the State Superintendent of Education, the applicable regional superintendent of schools, and the superintendent of the employing school district or the chief school administrator of the employing nonpublic school, if any, upon the conviction of any individual known to possess a certificate issued pursuant to Article 21 of the School Code of any offense set forth in Section 21-23a of the School Code or any other felony conviction, providing the name of the certificate holder, the fact of the conviction, and the name and location of the court where the conviction occurred. The certificate holder must also be contemporaneously sent a copy of the notice.

(b) The State's Attorney of each county shall have authority to appoint one or more special investigators to serve subpoenas, make return of process and conduct investigations which assist the State's Attorney in the performance of his duties. A special investigator shall not carry firearms except with permission of the State's Attorney and only while carrying appropriate identification indicating his employment and in the performance of his assigned duties.

Subject to the qualifications set forth in this subsection, special investigators shall be peace officers and shall have all the powers possessed by investigators under the State's Attorneys Appellate Prosecutor's Act.

No special investigator employed by the State's Attorney shall have peace officer status or exercise police powers unless he or she successfully completes the basic police training course mandated and approved by the Illinois Law Enforcement Training Standards Board or such board waives the training requirement by reason of the special investigator's prior law enforcement experience or training or both. Any State's Attorney appointing a special investigator shall consult with all affected local police agencies, to the extent consistent with the public interest, if the special investigator is assigned to areas within that agency's jurisdiction.

Before a person is appointed as a special investigator, his fingerprints shall be taken and transmitted to the Department of State Police. The Department shall examine its records and submit to the State's Attorney of the county in which the investigator seeks appointment any conviction information concerning the person on file with the Department. No person shall be appointed as a special investigator if he has been convicted of a felony or other offense involving moral turpitude. A special investigator shall be paid a salary and be reimbursed for actual expenses incurred in performing his assigned duties. The county board shall approve the salary and actual expenses and appropriate the salary and expenses in the manner prescribed by law or ordinance.

(c) The State's Attorney may request and receive from employers, labor unions, telephone companies, and utility companies location information concerning putative fathers and noncustodial parents for the purpose of establishing a child's paternity or establishing, enforcing, or modifying a child support obligation. In this subsection, "location information" means information about (i) the physical whereabouts of a putative father or noncustodial parent, (ii) the putative father or noncustodial parent's employer, or (iii) the salary, wages, and other compensation paid and the health insurance coverage provided to the putative father or noncustodial parent by the employer of the putative father or noncustodial parent or by a labor union of which the putative father or noncustodial parent is a member.

(d) For each State fiscal year, the State's Attorney of Cook County shall appear before the General Assembly and request appropriations to be made from the First Degree Murder Capital Litigation Trust Fund to the State Treasurer for the purpose of providing assistance in the prosecution of first degree murder capital cases in Cook County and for the purpose of providing assistance to the State in post-conviction proceedings in first degree murder capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder capital cases. The State's Attorney may appear before the General Assembly at other times during the State's fiscal year to request supplemental appropriations from the Trust Fund to the State Treasurer.

(e) The State's Attorney shall have the authority to enter into a written agreement with the Department of Revenue for pursuit of civil liability under Section 17-1a of the Criminal Code of 1961 against persons who have issued to the Department checks or other orders in violation of the provisions of paragraph (d) of subsection (B) of Section 17-1 of the Criminal Code of 1961, with the Department to retain the amount owing upon the dishonored check or order along with the dishonored check fee imposed under the Uniform Penalty and Interest Act, with the balance of damages, fees, and costs collected under Section 17-1a of the Criminal Code of 1961 to be retained by the State's Attorney. The agreement shall not affect the allocation of fines and costs imposed in any criminal prosecution.

(Source: P.A. 96-431, eff. 8-13-09.)

Section 120. If and only if the provisions of Senate Bill 3539 become law, the State Appellate Defender Act is amended by changing Section 10 as follows:

(725 ILCS 105/10) (from Ch. 38, par. 208-10)

Sec. 10. Powers and duties of State Appellate Defender.

(a) The State Appellate Defender shall represent indigent persons on appeal in criminal and delinquent minor proceedings, when appointed to do so by a court under a Supreme Court Rule or law of this State.

(b) The State Appellate Defender shall submit a budget for the approval of the State Appellate Defender Commission.

(c) The State Appellate Defender may:

(1) maintain a panel of private attorneys available to serve as counsel on a case basis;

(2) establish programs, alone or in conjunction with law schools, for the purpose of utilizing volunteer law students as legal assistants;

(3) cooperate and consult with state agencies, professional associations, and other groups concerning the causes of criminal conduct, the rehabilitation and correction of persons charged with and convicted of crime, the administration of criminal justice, and, in counties of less than 1,000,000 population, study, design, develop and implement model systems for the delivery of trial level defender services, and make an annual report to the General Assembly;

(4) hire investigators to provide investigative services to appointed counsel and county public defenders;

(5) in first degree murder cases in which a death sentence is an authorized disposition, provide trial counsel with legal assistance and the assistance of expert witnesses, investigators, and mitigation specialists from funds appropriated to the State Appellate Defender specifically for that purpose by the General Assembly. The Office of State Appellate Defender shall not be appointed to serve as trial counsel in first degree murder capital cases;

(6) develop a Juvenile Defender Resource Center to: (i) study, design, develop, and implement model systems for the delivery of trial level defender services for juveniles in the justice system; (ii) in cases in which a sentence of incarceration or an adult sentence, or both, is an authorized disposition, provide trial counsel with legal advice and the assistance of expert witnesses and investigators from funds appropriated to the Office of the State Appellate Defender by the General Assembly specifically for that purpose; (iii) develop and provide training to public defenders on juvenile justice issues, utilizing resources including the State and local bar associations, the Illinois Public Defender Association, law schools, the Midwest Juvenile Defender Center, and pro bono efforts by law firms; and (iv) make an annual report to the General Assembly.

Investigators employed by the First Degree Murder Capital Trial Assistance Unit and First Degree Murder Capital Post Conviction Unit of the State Appellate Defender shall be authorized to inquire through the Illinois State Police or local law enforcement with the Law Enforcement Agencies Data System (LEADS) under Section 2605-375 of the Civil Administrative Code of Illinois to ascertain whether their potential witnesses have a criminal background, including: (i) warrants; (ii) arrests; (iii) convictions; and (iv) officer safety information. This authorization applies only to information held on the State level and shall be used only to protect the personal safety of the investigators. Any information that is obtained through this inquiry may not be disclosed by the investigators.

(d) For each State fiscal year, the State Appellate Defender shall request a direct appropriation from the First Degree Murder Capital Litigation Trust Fund for expenses incurred by the State Appellate Defender in providing assistance to trial attorneys under item (c)(5) of this Section and for expenses incurred by the State Appellate Defender in representing petitioners in first degree murder capital cases in post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to first degree murder capital cases and for the representation of those petitioners by attorneys approved by or contracted with the State Appellate Defender and an appropriation to the State Treasurer for payments from the Trust Fund for the defense of cases in counties other than Cook County. The State Appellate Defender may appear before the General Assembly at other times during the State's fiscal year to request supplemental appropriations from the Trust Fund to the State Treasurer.

(e) The requirement for reporting to the General Assembly shall be satisfied by filing copies of the report with the Speaker, the Minority Leader and the Clerk of the House of Representatives and the President, the Minority Leader and the Secretary of the Senate and the Legislative Research Unit, as required by Section 3.1 of the General Assembly Organization Act and filing such additional copies with the State Government Report Distribution Center for the General Assembly as is required under paragraph (t) of Section 7 of the State Library Act.

(Source: P.A. 95-376, eff. 1-1-08; 96-1148, eff. 7-21-10.)

Section 125. If and only if the provisions of Senate Bill 3539 become law, the Code of Criminal Procedure of 1963 is amended by changing Section 113-3 as follows:

(725 ILCS 5/113-3) (from Ch. 38, par. 113-3)

Sec. 113-3. (a) Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge. If the accused is a dissolved corporation, and is not represented by counsel, the court may, in the interest of justice, appoint as counsel a licensed attorney of this State.

(b) In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. If there is no Public Defender in the county or if the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the Public Defender, the court shall appoint as counsel a licensed attorney at law of this State, except that in a county having a population of 2,000,000 or more the Public Defender shall be appointed as counsel in all misdemeanor cases where the defendant is indigent and desires counsel unless the case involves multiple defendants, in which case the court may appoint counsel other than the Public Defender for the additional defendants. The court shall require an affidavit signed by any defendant who requests court-appointed counsel. Such affidavit shall be in the form established by the Supreme Court containing sufficient information to ascertain the assets and liabilities of that defendant. The Court may direct the Clerk of the Circuit Court to assist the defendant in the completion of the affidavit. Any person who knowingly files such affidavit containing false information concerning his assets and liabilities shall be liable to the county where the case, in which such false affidavit is filed, is pending for the reasonable value of the services rendered by the public defender or other court-appointed counsel in the case to the extent that such services were unjustly or falsely procured.

(c) Upon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee. The court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel. In counties with a population greater than 2,000,000, the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee stated in the order and based upon a rate of compensation of not more than $40 for each hour spent while court is in session and not more than $30 for each hour otherwise spent representing a defendant, and such compensation shall not exceed $150 for each defendant represented in misdemeanor cases and $1250 in felony cases, in addition to expenses reasonably incurred as hereinafter in this Section provided, except that, in extraordinary circumstances, payment in excess of the limits herein stated may be made if the trial court certifies that such payment is necessary to provide fair compensation for protracted representation. 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.

(d) In first degree murder capital cases, in addition to counsel, if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county Treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant.

(e) If the court in any county having a population greater than 2,000,000 determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of such expenses, order the county treasurer of the county of trial, in such counties having a population greater than 2,000,000 to pay the general expenses of the trial incurred by the defendant not to exceed $50 for each defendant.

(f) The provisions of this Section relating to appointment of counsel, compensation of counsel, and payment of expenses in first degree murder capital cases apply except when the compensation and expenses are being provided under the First Degree Murder Capital Crimes Litigation Act.

(Source: P.A. 91-589, eff. 1-1-00.)