Full Text of HB5032 95th General Assembly
HB5032ham001 95TH GENERAL ASSEMBLY
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Judiciary II - Criminal Law Committee
Filed: 5/7/2008
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| AMENDMENT TO HOUSE BILL 5032
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| AMENDMENT NO. ______. Amend House Bill 5032 by inserting | 3 |
| after the title the following:
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| "WHEREAS, Factual claims of torture, which are determined | 5 |
| to be credible, can most effectively and efficiently be | 6 |
| evaluated through complete and independent investigation and | 7 |
| review of the same; therefore"; and | 8 |
| by replacing everything after the enacting clause with the | 9 |
| following:
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| "Section 1. Short title. This Act may be cited as the | 11 |
| Illinois Torture Inquiry and Relief Commission Act. | 12 |
| Section 5. Definitions. As used in this Act: | 13 |
| (1) "Claim of torture" means a claim on behalf of
a living | 14 |
| person convicted of a felony in Illinois asserting that
he was | 15 |
| tortured into confessing to the crime
for which the person was |
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| convicted and the tortured confession was used to obtain the | 2 |
| conviction
and for
which there is some credible evidence
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| related to allegations of torture committed by
Commander Jon | 4 |
| Burge or any officer under the supervision of Jon
Burge.
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| (2) "Commission" means the Illinois Torture Inquiry and | 6 |
| Relief Commission established by this Act. | 7 |
| (3) "Director" means the Director of the Illinois Torture | 8 |
| Inquiry and Relief Commission. | 9 |
| (4) "Victim" means the victim of the crime, or if the | 10 |
| victim of the crime is deceased, the next of kin of the victim. | 11 |
| Section 10. Purpose of Act. This Act establishes an | 12 |
| extraordinary procedure to investigate and determine factual | 13 |
| claims of torture related to allegations of torture that shall | 14 |
| require an individual to voluntarily waive rights and | 15 |
| privileges as described in this Act. | 16 |
| Section 15. Commission established. | 17 |
| (a) There is established the Illinois Torture and Relief | 18 |
| Inquiry Commission. The Illinois Torture Relief Inquiry | 19 |
| Commission shall be an independent commission under the | 20 |
| Administrative Office of the Illinois Courts for | 21 |
| administrative purposes. | 22 |
| (b) The Administrative Office of the Illinois Courts shall | 23 |
| provide administrative support to the Commission as needed. The | 24 |
| Director of the Administrative Office of the Illinois Courts |
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| shall not reduce or modify the budget of the Commission or use | 2 |
| funds appropriated to the Commission without the approval of | 3 |
| the Commission. | 4 |
| Section 20. Membership; chair; meetings; quorum. | 5 |
| (a) The Commission shall consist of 8 voting members as | 6 |
| follows: | 7 |
| (1) One shall be a Circuit Court Judge, with 10 years | 8 |
| or less seniority. | 9 |
| (2) One shall be a former prosecuting attorney. | 10 |
| (3) One shall be a law school professor. | 11 |
| (4) One shall be engaged in the practice of criminal | 12 |
| defense law. | 13 |
| (5) Three shall be members of the public who are not | 14 |
| attorneys
and who are not officers or employees of the | 15 |
| Judicial
branch.
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| (6) One shall be a former public defender. | 17 |
| The Commission shall be appointed as follows: | 18 |
| 2 members appointed by the Governor; | 19 |
| 2 members appointed by the President of the Senate; | 20 |
| One member appointed by the Minority Leader of the | 21 |
| Senate; | 22 |
| 2 members appointed by the Speaker of the House of | 23 |
| Representatives; and | 24 |
| One member appointed by the Minority Leader of the | 25 |
| House of Representatives. |
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| After an appointee has served his or her first 3-year term, | 2 |
| the subsequent appointment or reappointment may be by the | 3 |
| initial appointing authority. | 4 |
| (a-1) The appointing authority shall also appoint | 5 |
| alternate Commission members for the Commission members he or | 6 |
| she has appointed to serve in the event of scheduling | 7 |
| conflicts, conflicts of interest, disability, or other | 8 |
| disqualification arising in a particular case. The alternate | 9 |
| members shall have the same qualifications for appointment as | 10 |
| the original member. In making the appointments, the appointing | 11 |
| authority shall make a good faith effort to appoint members | 12 |
| with different perspectives of the justice system. The | 13 |
| appointing authority shall also consider geographical | 14 |
| location, gender, and racial diversity in making the | 15 |
| appointments. | 16 |
| (b) The judge who is appointed as a member under subsection | 17 |
| (a) shall serve as Chair of the Commission. The Commission | 18 |
| shall have its initial meeting no later than January 31, 2009, | 19 |
| at the call of the Chair. The Commission shall meet a minimum | 20 |
| of once every 6 months and may also meet more often at the call | 21 |
| of the Chair. The Commission shall meet at such time and place | 22 |
| as designated by the Chair. Notice of the meetings shall be | 23 |
| given at such time and manner as provided by the rules of the | 24 |
| Commission. A majority of the members shall constitute a | 25 |
| quorum. All Commission votes shall be by majority vote. |
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| Section 25. Terms of members; compensation; expenses. | 2 |
| (a) Of the initial members, 2 appointments shall be for | 3 |
| one-year terms, 3 appointments shall be for 2-year terms, and 3 | 4 |
| appointments shall be for 3-year terms. Thereafter, all terms | 5 |
| shall be for 3 years. Members of the Commission shall serve no | 6 |
| more than 2 consecutive 3-year terms plus any initial term of | 7 |
| less than 3 years. Unless provided otherwise by this Act, all | 8 |
| terms of members shall begin on January 1 and end on December | 9 |
| 31. | 10 |
| Members serving by virtue of elective or appointive office, | 11 |
| may serve only so long as the office holders hold those | 12 |
| respective offices. The Chief Judge of the Cook County Circuit | 13 |
| Court may remove members, with cause. Vacancies occurring | 14 |
| before the expiration of a term shall be filled in the manner | 15 |
| provided for the members first appointed. | 16 |
| (b) The Commission members shall receive no salary for | 17 |
| serving. All Commission members shall receive necessary | 18 |
| subsistence and travel expenses. | 19 |
| Section 30. Director and other staff. The Commission shall | 20 |
| employ a Director. The Director shall be an attorney licensed | 21 |
| to practice in Illinois at the time of appointment and at all | 22 |
| times during service as Director. The Director shall assist the | 23 |
| Commission in developing rules and standards for cases accepted | 24 |
| for review, coordinate investigation of cases accepted for | 25 |
| review, maintain records for all cases investigations, prepare |
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| reports outlining Commission investigations and | 2 |
| recommendations to the trial court, and apply for and accept on | 3 |
| behalf of the Commission any funds that may become available | 4 |
| from government grants, private gifts, donations, or bequests | 5 |
| from any source. | 6 |
| Subject to the approval of the Chair, the Director shall | 7 |
| employ such other staff and shall contract for services as is | 8 |
| necessary to assist the Commission in the performance of its | 9 |
| duties, and as funds permit. | 10 |
| The Commission may meet in an area provided by the | 11 |
| Administrative Office of the Illinois Courts. The | 12 |
| Administrative Office of the Illinois Courts shall provide | 13 |
| office space for the Commission and the Commission staff. | 14 |
| Section 35. Duties. The Commission shall have the following | 15 |
| duties and powers: | 16 |
| (1) To establish the criteria and screening process to | 17 |
| be used to determine which cases shall be accepted for | 18 |
| review. | 19 |
| (2) To conduct inquiries into claims of torture with | 20 |
| priority to be given to those cases in which the convicted | 21 |
| person is currently incarcerated solely for the crime to | 22 |
| which he or she claims torture by Jon Burge or officers | 23 |
| under his command, or both. | 24 |
| (3) To coordinate the investigation of cases accepted | 25 |
| for review. |
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| (4) To maintain records for all case investigations. | 2 |
| (5) To prepare written reports outlining Commission | 3 |
| investigations and recommendations to the trial court at | 4 |
| the completion of each inquiry. | 5 |
| (6) To apply for and accept any funds that may become | 6 |
| available for the Commission's work from government | 7 |
| grants, private gifts, donations, or bequests from any | 8 |
| source. | 9 |
| Section 40. Claims of torture; waiver of convicted person's | 10 |
| procedural safeguards and privileges; formal inquiry; | 11 |
| notification of the crime victim. | 12 |
| (a) A claim of torture may be referred to the Commission by | 13 |
| any court, person, or agency. The Commission shall not consider | 14 |
| a claim of torture if the convicted person is deceased. The | 15 |
| determination of whether to grant a formal inquiry regarding | 16 |
| any other claim of torture is in the discretion of the | 17 |
| Commission. The Commission may informally screen and dismiss a | 18 |
| case summarily at its discretion. | 19 |
| (b) No formal inquiry into a claim of torture shall be made | 20 |
| by the Commission unless the Director or the Director's | 21 |
| designee first obtains a signed agreement from the convicted | 22 |
| person in which the convicted person waives his or her | 23 |
| procedural safeguard and privileges, agrees to cooperate with | 24 |
| the Commission, and agrees to provide full disclosure regarding | 25 |
| inquiry requirements of the Commission. The Waver under this |
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| subsection does not apply to matters unrelated to a convicted | 2 |
| person's claim of torture. The convicted person shall have the | 3 |
| right to advice of counsel prior to the execution of the | 4 |
| agreement and, if a formal inquiry is granted, throughout the | 5 |
| formal inquiry. If counsel represents the convicted person, | 6 |
| then the convicted person's counsel must be present at the | 7 |
| signing of the agreement. If counsel does not represent the | 8 |
| convicted person, the Commission Chair shall determine the | 9 |
| convicted person's indigency status and, if appropriate, enter | 10 |
| an order for the appointment of counsel for the purpose of | 11 |
| advising on the agreement. | 12 |
| (c) If a formal inquiry regarding a claim of torture is | 13 |
| granted, the Director shall use all due diligence to notify the | 14 |
| victim in the case and explain the inquiry process. The | 15 |
| Commission shall give the victim notice that the victim has the | 16 |
| right to present his or her views and concerns throughout the | 17 |
| Commission's investigation. | 18 |
| (d) The Commission may use any measure provided in the Code | 19 |
| of Civil Procedure and the Code of Criminal Procedure of 1963 | 20 |
| to obtain information necessary to its inquiry. The Commission | 21 |
| may also do any of the following: issue process to compel the | 22 |
| attendance of witnesses and the production of evidence, | 23 |
| administer oaths, petition the Circuit Court of Cook County or | 24 |
| of the original jurisdiction for enforcement of process or for | 25 |
| other relief, and prescribe its own rules of procedure. All | 26 |
| challenges with regard to the Commission's authority or the |
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| Commission's access to evidence shall be heard by the | 2 |
| Commission Chair in the Chair's judicial capacity, including | 3 |
| any in camera review. | 4 |
| (e) While performing duties for the Commission, the | 5 |
| Director or the Director's designee may serve subpoenas or | 6 |
| other process issued by the Commission throughout the State in | 7 |
| the same manner and with the same effect as an officer | 8 |
| authorized to serve process under the laws of this State. | 9 |
| (f) All State discovery and disclosure statutes in effect | 10 |
| at the time of formal inquiry shall be enforceable as if the | 11 |
| convicted person were currently being tried for the charge for | 12 |
| which the convicted person is claiming torture. | 13 |
| (g) If, at any point during an inquiry, the convicted | 14 |
| person refuses to comply with requests of the Commission or is | 15 |
| otherwise deemed to be uncooperative by the Commission, the | 16 |
| Commission shall discontinue the inquiry. | 17 |
| Section 45. Commission proceedings. | 18 |
| (a) At the completion of a formal inquiry, all relevant | 19 |
| evidence shall be presented to the full Commission. As part of | 20 |
| its proceedings, the Commission may conduct public hearings. | 21 |
| The determination as to whether to conduct public hearings is | 22 |
| solely in the discretion of the Commission. Any public hearing | 23 |
| held in accordance with this Section shall be subject to the | 24 |
| Commission's rules of operation. | 25 |
| (b) The Director shall use all due diligence to notify the |
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| victim at least 30 days prior to any proceedings of the full | 2 |
| Commission held in regard to the victim's case. The Commission | 3 |
| shall notify the victim that the victim is permitted to attend | 4 |
| proceedings otherwise closed to the public, subject to any | 5 |
| limitations imposed by this Act, If the victim plans to attend | 6 |
| proceedings otherwise closed to the public, the victim shall | 7 |
| notify the Commission at least 10 days in advance of the | 8 |
| proceedings of his or her intent to attend. If the Commission | 9 |
| determines that the victim's presence may interfere with the | 10 |
| investigation, the Commission may close any portion of the | 11 |
| proceedings to the victim. | 12 |
| (c) After hearing the evidence, the full Commission shall | 13 |
| vote to establish further case disposition as provided by this | 14 |
| subsection. All 8 voting members of the Commission shall | 15 |
| participate in that vote. | 16 |
| If 5 or more of the 8 voting members of the Commission | 17 |
| conclude there is sufficient evidence of torture to merit | 18 |
| judicial review, the case shall be referred to the Chief Judge | 19 |
| of the Circuit Court of Cook County by filing with the clerk of | 20 |
| court the opinion of the Commission with supporting findings of | 21 |
| fact, as well as the record in support of such opinion, with | 22 |
| service on the State's Attorney if another State's Attorney is | 23 |
| appointed other than Richard Devine in non-capital cases and | 24 |
| service on both the State's Attorney and Attorney General in | 25 |
| capital cases. | 26 |
| If less than 5 of the 8 voting members of the Commission |
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| conclude there is insufficient evidence of torture to merit | 2 |
| judicial review, the Commission shall conclude there is | 3 |
| insufficient evidence of torture to merit judicial review. The | 4 |
| Commission shall document that opinion, along with supporting | 5 |
| findings of fact, and file those documents and supporting | 6 |
| materials with the court clerk in the circuit of original | 7 |
| jurisdiction, with a copy to the State's Attorney and the chief | 8 |
| judge. | 9 |
| The Director of the Commission shall use all due diligence | 10 |
| to notify immediately the victim of the Commission's conclusion | 11 |
| in a case. | 12 |
| (d) Evidence of criminal acts, professional misconduct, or | 13 |
| other wrongdoing disclosed through formal inquiry or | 14 |
| Commission proceedings shall be referred to the appropriate | 15 |
| authority. Evidence favorable to the convicted person | 16 |
| disclosed through formal inquiry or Commission proceedings | 17 |
| shall be disclosed to the convicted person and the convicted | 18 |
| person's counsel, if the convicted person has counsel. | 19 |
| (e) All proceedings, of the Commission shall be recorded | 20 |
| and transcribed as part of the record. All Commission member | 21 |
| votes shall be recorded in the record. All records and | 22 |
| proceedings of the Commission are confidential and are exempt | 23 |
| from public record and public meeting laws except that the | 24 |
| supporting records for the Commission's conclusion that there | 25 |
| is sufficient evidence of torture to merit judicial review, | 26 |
| including all files and materials considered by the Commission |
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| and an full transcript of the hearing before the Commission, | 2 |
| shall become public at the time of referral to the court. | 3 |
| Commission records for conclusions of insufficient evidence of | 4 |
| torture to merit judicial review shall remain confidential, | 5 |
| except as provided in subsection (d). | 6 |
| Section 50. Post-commission judicial review. | 7 |
| (a) If the Commission concludes there is sufficient | 8 |
| evidence of torture to merit judicial review, the
Chair of the | 9 |
| Commission shall request the Chief Judge of the Circuit Court | 10 |
| of Cook County for assignment to a trial judge for | 11 |
| consideration. The court may receive proof by affidavits, | 12 |
| depositions, oral testimony, or other evidence. In its | 13 |
| discretion the court may order the petitioner brought before | 14 |
| the court for the hearing. If the court finds in favor of the | 15 |
| petitioner, it shall enter an appropriate order with respect to | 16 |
| the judgment or sentence in the former proceedings and such | 17 |
| supplementary orders as to rearraignment, retrial, custody, | 18 |
| bail or discharge as may be necessary and proper.
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| (b) The State's Attorney, or the State's Attorney's | 20 |
| designee, shall represent the State at the hearing before the | 21 |
| Assigned judge. | 22 |
| Section 55. No right to further review of decision by | 23 |
| Commission; convicted person retains right to other | 24 |
| postconviction relief. |
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| (a) Unless otherwise authorized by this Act, the decisions | 2 |
| of the Commission are final and are subject to further review | 3 |
| by appeal, certification, writ, motion, or otherwise. | 4 |
| (b) A claim of torture asserted through the Commission | 5 |
| shall not adversely affect the convicted person's rights to | 6 |
| other post conviction relief.
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| Section 60. In order to allow staggered terms of members of | 8 |
| the Illinois Torture Inquiry and Relief Commission, the | 9 |
| Commission members identified in paragraphs (1), (2), and (4) | 10 |
| of subsection (a) of Section 20 shall be appointed to initial | 11 |
| terms of 2 years, the Commission members identified in | 12 |
| paragraph (5) of subsection (a) of Section 20 shall be | 13 |
| appointed to initial terms of 3 years, and the Commission | 14 |
| members identified in paragraph (3) and (6) of subsection (a) | 15 |
| of Section 20 shall be appointed to initial terms of one year. | 16 |
| Section 65. Beginning January 1, 2010, and annually | 17 |
| thereafter, the Illinois Torture and Inquiry Relief Commission | 18 |
| shall report on its activities to the General Assembly and the | 19 |
| Governor. The report may contain recommendations of any needed | 20 |
| legislative changes related to the activities of the | 21 |
| Commission. The report shall recommend the funding needed by | 22 |
| the Commission, the State's Attorneys, and the Department of | 23 |
| State Police in order to meet their responsibilities under this | 24 |
| Act. Recommendations concerning the State's Attorneys or the |
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| Department of State Police shall only be made after | 2 |
| consultations with the Illinois State's Attorneys Association | 3 |
| and the Attorney General. | 4 |
| Section 70. The Administrative Office of the Illinois | 5 |
| Courts shall report to the General Assembly and the Chief | 6 |
| Justice no later than December 31, 2011, and no later than | 7 |
| December 31 of every third year, regarding the implementation | 8 |
| of this Act and shall include in its report the statistics | 9 |
| regarding inquiries and any recommendations for changes. The | 10 |
| House of Representatives and the Senate shall refer the report | 11 |
| to the appropriate committees for their review. | 12 |
| Section 75. The initial members of the Illinois Torture | 13 |
| Inquiry and Relief Commission shall be appointed not later than | 14 |
| October 1, 2008. No claims of torture may be filed with the | 15 |
| Commission until November 1, 2008. | 16 |
| Section 80. This Act applies to claims of torture filed on | 17 |
| or before December 31, 2013.
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| Section 99. Effective date. This Act takes effect upon | 19 |
| becoming law.".
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