HB5032ham001 95TH GENERAL ASSEMBLY

Judiciary II - Criminal Law Committee

Filed: 5/7/2008

09500HB5032ham001 LRB095 19342 RLC 49374 a

AMENDMENT TO HOUSE BILL 5032

AMENDMENT NO. ______. Amend House Bill 5032 by inserting after the title the following:

"WHEREAS, Factual claims of torture, which are determined to be credible, can most effectively and efficiently be evaluated through complete and independent investigation and review of the same; therefore"; and

by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Illinois Torture Inquiry and Relief Commission Act.

Section 5. Definitions. As used in this Act:

(1) "Claim of torture" means a claim on behalf of a living person convicted of a felony in Illinois asserting that he was tortured into confessing to the crime for which the person was convicted and the tortured confession was used to obtain the conviction and for which there is some credible evidence related to allegations of torture committed by Commander Jon Burge or any officer under the supervision of Jon Burge.

(2) "Commission" means the Illinois Torture Inquiry and Relief Commission established by this Act.

(3) "Director" means the Director of the Illinois Torture Inquiry and Relief Commission.

(4) "Victim" means the victim of the crime, or if the victim of the crime is deceased, the next of kin of the victim.

Section 10. Purpose of Act. This Act establishes an extraordinary procedure to investigate and determine factual claims of torture related to allegations of torture that shall require an individual to voluntarily waive rights and privileges as described in this Act.

Section 15. Commission established.

(a) There is established the Illinois Torture and Relief Inquiry Commission. The Illinois Torture Relief Inquiry Commission shall be an independent commission under the Administrative Office of the Illinois Courts for administrative purposes.

(b) The Administrative Office of the Illinois Courts shall provide administrative support to the Commission as needed. The Director of the Administrative Office of the Illinois Courts shall not reduce or modify the budget of the Commission or use funds appropriated to the Commission without the approval of the Commission.

Section 20. Membership; chair; meetings; quorum.

(a) The Commission shall consist of 8 voting members as follows:

(1) One shall be a Circuit Court Judge, with 10 years or less seniority.

(2) One shall be a former prosecuting attorney.

(3) One shall be a law school professor.

(4) One shall be engaged in the practice of criminal defense law.

(5) Three shall be members of the public who are not attorneys and who are not officers or employees of the Judicial branch.

(6) One shall be a former public defender.

The Commission shall be appointed as follows:

2 members appointed by the Governor;

2 members appointed by the President of the Senate;

One member appointed by the Minority Leader of the Senate;

2 members appointed by the Speaker of the House of Representatives; and

One member appointed by the Minority Leader of the House of Representatives.

After an appointee has served his or her first 3-year term, the subsequent appointment or reappointment may be by the initial appointing authority.

(a-1) The appointing authority shall also appoint alternate Commission members for the Commission members he or she has appointed to serve in the event of scheduling conflicts, conflicts of interest, disability, or other disqualification arising in a particular case. The alternate members shall have the same qualifications for appointment as the original member. In making the appointments, the appointing authority shall make a good faith effort to appoint members with different perspectives of the justice system. The appointing authority shall also consider geographical location, gender, and racial diversity in making the appointments.

(b) The judge who is appointed as a member under subsection (a) shall serve as Chair of the Commission. The Commission shall have its initial meeting no later than January 31, 2009, at the call of the Chair. The Commission shall meet a minimum of once every 6 months and may also meet more often at the call of the Chair. The Commission shall meet at such time and place as designated by the Chair. Notice of the meetings shall be given at such time and manner as provided by the rules of the Commission. A majority of the members shall constitute a quorum. All Commission votes shall be by majority vote.

Section 25. Terms of members; compensation; expenses.

(a) Of the initial members, 2 appointments shall be for one-year terms, 3 appointments shall be for 2-year terms, and 3 appointments shall be for 3-year terms. Thereafter, all terms shall be for 3 years. Members of the Commission shall serve no more than 2 consecutive 3-year terms plus any initial term of less than 3 years. Unless provided otherwise by this Act, all terms of members shall begin on January 1 and end on December 31.

Members serving by virtue of elective or appointive office, may serve only so long as the office holders hold those respective offices. The Chief Judge of the Cook County Circuit Court may remove members, with cause. Vacancies occurring before the expiration of a term shall be filled in the manner provided for the members first appointed.

(b) The Commission members shall receive no salary for serving. All Commission members shall receive necessary subsistence and travel expenses.

Section 30. Director and other staff. The Commission shall employ a Director. The Director shall be an attorney licensed to practice in Illinois at the time of appointment and at all times during service as Director. The Director shall assist the Commission in developing rules and standards for cases accepted for review, coordinate investigation of cases accepted for review, maintain records for all cases investigations, prepare reports outlining Commission investigations and recommendations to the trial court, and apply for and accept on behalf of the Commission any funds that may become available from government grants, private gifts, donations, or bequests from any source.

Subject to the approval of the Chair, the Director shall employ such other staff and shall contract for services as is necessary to assist the Commission in the performance of its duties, and as funds permit.

The Commission may meet in an area provided by the Administrative Office of the Illinois Courts. The Administrative Office of the Illinois Courts shall provide office space for the Commission and the Commission staff.

Section 35. Duties. The Commission shall have the following duties and powers:

(1) To establish the criteria and screening process to be used to determine which cases shall be accepted for review.

(2) To conduct inquiries into claims of torture with priority to be given to those cases in which the convicted person is currently incarcerated solely for the crime to which he or she claims torture by Jon Burge or officers under his command, or both.

(3) To coordinate the investigation of cases accepted for review.

(4) To maintain records for all case investigations.

(5) To prepare written reports outlining Commission investigations and recommendations to the trial court at the completion of each inquiry.

(6) To apply for and accept any funds that may become available for the Commission's work from government grants, private gifts, donations, or bequests from any source.

Section 40. Claims of torture; waiver of convicted person's procedural safeguards and privileges; formal inquiry; notification of the crime victim.

(a) A claim of torture may be referred to the Commission by any court, person, or agency. The Commission shall not consider a claim of torture if the convicted person is deceased. The determination of whether to grant a formal inquiry regarding any other claim of torture is in the discretion of the Commission. The Commission may informally screen and dismiss a case summarily at its discretion.

(b) No formal inquiry into a claim of torture shall be made by the Commission unless the Director or the Director's designee first obtains a signed agreement from the convicted person in which the convicted person waives his or her procedural safeguard and privileges, agrees to cooperate with the Commission, and agrees to provide full disclosure regarding inquiry requirements of the Commission. The Waver under this subsection does not apply to matters unrelated to a convicted person's claim of torture. The convicted person shall have the right to advice of counsel prior to the execution of the agreement and, if a formal inquiry is granted, throughout the formal inquiry. If counsel represents the convicted person, then the convicted person's counsel must be present at the signing of the agreement. If counsel does not represent the convicted person, the Commission Chair shall determine the convicted person's indigency status and, if appropriate, enter an order for the appointment of counsel for the purpose of advising on the agreement.

(c) If a formal inquiry regarding a claim of torture is granted, the Director shall use all due diligence to notify the victim in the case and explain the inquiry process. The Commission shall give the victim notice that the victim has the right to present his or her views and concerns throughout the Commission's investigation.

(d) The Commission may use any measure provided in the Code of Civil Procedure and the Code of Criminal Procedure of 1963 to obtain information necessary to its inquiry. The Commission may also do any of the following: issue process to compel the attendance of witnesses and the production of evidence, administer oaths, petition the Circuit Court of Cook County or of the original jurisdiction for enforcement of process or for other relief, and prescribe its own rules of procedure. All challenges with regard to the Commission's authority or the Commission's access to evidence shall be heard by the Commission Chair in the Chair's judicial capacity, including any in camera review.

(e) While performing duties for the Commission, the Director or the Director's designee may serve subpoenas or other process issued by the Commission throughout the State in the same manner and with the same effect as an officer authorized to serve process under the laws of this State.

(f) All State discovery and disclosure statutes in effect at the time of formal inquiry shall be enforceable as if the convicted person were currently being tried for the charge for which the convicted person is claiming torture.

(g) If, at any point during an inquiry, the convicted person refuses to comply with requests of the Commission or is otherwise deemed to be uncooperative by the Commission, the Commission shall discontinue the inquiry.

Section 45. Commission proceedings.

(a) At the completion of a formal inquiry, all relevant evidence shall be presented to the full Commission. As part of its proceedings, the Commission may conduct public hearings. The determination as to whether to conduct public hearings is solely in the discretion of the Commission. Any public hearing held in accordance with this Section shall be subject to the Commission's rules of operation.

(b) The Director shall use all due diligence to notify the victim at least 30 days prior to any proceedings of the full Commission held in regard to the victim's case. The Commission shall notify the victim that the victim is permitted to attend proceedings otherwise closed to the public, subject to any limitations imposed by this Act, If the victim plans to attend proceedings otherwise closed to the public, the victim shall notify the Commission at least 10 days in advance of the proceedings of his or her intent to attend. If the Commission determines that the victim's presence may interfere with the investigation, the Commission may close any portion of the proceedings to the victim.

(c) After hearing the evidence, the full Commission shall vote to establish further case disposition as provided by this subsection. All 8 voting members of the Commission shall participate in that vote.

If 5 or more of the 8 voting members of the Commission conclude there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the Circuit Court of Cook County by filing with the clerk of court the opinion of the Commission with supporting findings of fact, as well as the record in support of such opinion, with service on the State's Attorney if another State's Attorney is appointed other than Richard Devine in non-capital cases and service on both the State's Attorney and Attorney General in capital cases.

If less than 5 of the 8 voting members of the Commission conclude there is insufficient evidence of torture to merit judicial review, the Commission shall conclude there is insufficient evidence of torture to merit judicial review. The Commission shall document that opinion, along with supporting findings of fact, and file those documents and supporting materials with the court clerk in the circuit of original jurisdiction, with a copy to the State's Attorney and the chief judge.

The Director of the Commission shall use all due diligence to notify immediately the victim of the Commission's conclusion in a case.

(d) Evidence of criminal acts, professional misconduct, or other wrongdoing disclosed through formal inquiry or Commission proceedings shall be referred to the appropriate authority. Evidence favorable to the convicted person disclosed through formal inquiry or Commission proceedings shall be disclosed to the convicted person and the convicted person's counsel, if the convicted person has counsel.

(e) All proceedings, of the Commission shall be recorded and transcribed as part of the record. All Commission member votes shall be recorded in the record. All records and proceedings of the Commission are confidential and are exempt from public record and public meeting laws except that the supporting records for the Commission's conclusion that there is sufficient evidence of torture to merit judicial review, including all files and materials considered by the Commission and an full transcript of the hearing before the Commission, shall become public at the time of referral to the court. Commission records for conclusions of insufficient evidence of torture to merit judicial review shall remain confidential, except as provided in subsection (d).

Section 50. Post-commission judicial review.

(a) If the Commission concludes there is sufficient evidence of torture to merit judicial review, the Chair of the Commission shall request the Chief Judge of the Circuit Court of Cook County for assignment to a trial judge for consideration. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.

(b) The State's Attorney, or the State's Attorney's designee, shall represent the State at the hearing before the Assigned judge.

Section 55. No right to further review of decision by Commission; convicted person retains right to other postconviction relief.

(a) Unless otherwise authorized by this Act, the decisions of the Commission are final and are subject to further review by appeal, certification, writ, motion, or otherwise.

(b) A claim of torture asserted through the Commission shall not adversely affect the convicted person's rights to other post conviction relief.

Section 60. In order to allow staggered terms of members of the Illinois Torture Inquiry and Relief Commission, the Commission members identified in paragraphs (1), (2), and (4) of subsection (a) of Section 20 shall be appointed to initial terms of 2 years, the Commission members identified in paragraph (5) of subsection (a) of Section 20 shall be appointed to initial terms of 3 years, and the Commission members identified in paragraph (3) and (6) of subsection (a) of Section 20 shall be appointed to initial terms of one year.

Section 65. Beginning January 1, 2010, and annually thereafter, the Illinois Torture and Inquiry Relief Commission shall report on its activities to the General Assembly and the Governor. The report may contain recommendations of any needed legislative changes related to the activities of the Commission. The report shall recommend the funding needed by the Commission, the State's Attorneys, and the Department of State Police in order to meet their responsibilities under this Act. Recommendations concerning the State's Attorneys or the Department of State Police shall only be made after consultations with the Illinois State's Attorneys Association and the Attorney General.

Section 70. The Administrative Office of the Illinois Courts shall report to the General Assembly and the Chief Justice no later than December 31, 2011, and no later than December 31 of every third year, regarding the implementation of this Act and shall include in its report the statistics regarding inquiries and any recommendations for changes. The House of Representatives and the Senate shall refer the report to the appropriate committees for their review.

Section 75. The initial members of the Illinois Torture Inquiry and Relief Commission shall be appointed not later than October 1, 2008. No claims of torture may be filed with the Commission until November 1, 2008.

Section 80. This Act applies to claims of torture filed on or before December 31, 2013.

Section 99. Effective date. This Act takes effect upon becoming law.".