Call for a Moratorium on the Death Penalty in Illinois

CALL FOR A MORATORIUM ON THE DEATH PENALTY

In the last two and a half years, seven men who had been on Illinois’ Death Row have been found not guilty on appeal and have been released from prison.* This statistic suggests that there is something terribly wrong with the Illinois death penalty statute or its administration, or both.

The undersigned bar organizations and attorneys therefore call upon the State of Illinois to declare a one-year moratorium on imposition of the death penalty so that a study of the system can be conducted and reforms can be implemented to prevent an innocent person from being convicted of capital crimes.

The moratorium will not suspend any prosecutions or appellate procedures; it will simply provide that once appeals are exhausted, executions will not take place during the one-year moratorium.

Some of us oppose capital punishment. Others of us believe it is necessary in certain circumstances. None of us--indeed, no right-thinking person--believes innocent persons should be put to death by the state. We must do all we can to assure that that never happens in Illinois.

We plan to take the following actions:

1. 1. Draft legislation amending the Illinois death penalty statute to provide that no executions can take place for one year and establishing a bi-partisan commission to study the system and recommend reforms. Obtain the cooperation of one or more legislators to introduce it;
      
   2. Urge Gov. Jim Edgar to appoint a study commission and to announce that he intends to grant a reprieve in the meantime to any person scheduled to be executed;
      
   3. File a petition with the Illinois Supreme Court (either independently or on behalf of one or more defendants), calling upon the court to appoint a study commission and to declare that it will not set dates for executions in the meantime;
      
      (Action by any one of the above three would trigger a study and a moratorium)
      
   4. Urge Attorney General Jim Ryan to immediately re-examine all death penalty cases currently on appeal to attempt to ascertain the guilt or innocence of the defendants. The attorney general must cease the practice of automatically pressing for execution of every defendant sentenced to death; and
      
   5. Urge Cook County State’s Attorney Richard Devine to immediately review his office’s procedures for handling capital cases to ensure that innocent persons are not prosecuted.

If a study commission is formed, it should be asked to address the following specific factors which lead to wrongful convictions, among others:

1. 1. Misconduct by prosecutors and police officers, including fabrication of evidence of guilt and suppression of evidence of innocence;
      
   2. Inadequacy of funding of defense counsel at trial, on appeal, and in post-conviction proceedings;
      
   3. Prejudicial news media. The publicity surrounding some murders puts tremendous pressure on police and prosecutors to arrest, convict, and execute;
      
   4. Reliance on questionable witness testimony. Too often, defendants are implicated by persons who are either incompetent or are induced to lie to win their own freedom;
      
   5. Failure to investigate exculpatory evidence after conviction. One approach would be to give capital defendants the right to have physical evidence examined using techniques not available when their cases were tried; and
      
   6. Questionable use of confessions in prosecutions. One approach would be to require that all confessions in murder cases be videotaped.

* Dennis Williams and Verneal Jimerson. Cook County (police failed to investigate leads that another person was the killer: he has now been charged; prosecutors relied on questionable witness testimony); Rolando Cruz and Alejandro Hernandez, DuPage County (seven police officers and prosecutors have been indicted in connection with fabricating evidence of guilt). Joseph Burrows, Iriquois County (the State’s key witness eventually admitted she was the killer): Gary Gauger, McHenry County (Appellate Court found police didn't even have probable cause to arrest him); Carl Lawson. St. Clair County (won a retrial on appeal, and retrial jury acquitted him).

Signed:

THE CHICAGO COUNCIL OF LAWYERS 3/21/97

SUMMARY OF THE OHIO STATE BAR ASSOCIATION REPORT CALLING FOR

REVIEW OF OHIO’S DEATH PENALTY SYSTEM IN ORDER TO REMEDY

DEFECTS IN THE EXISTING LAW THAT UNDERMINE THE FAIRNESS AND

RELIABILITY OF CAPITAL PROSECUTIONS AND SENTENCES IN OHIO

November 8, 1997

Ohio’s current death penalty law has been in effect since October 21, 1981. There are presently 174 men on Ohio's death row. In the past sixteen years a number of flaws in the capital system that undermine the fairness and reliability of the capital sentences have become obvious. This report identifies a number of those problems and recommends corrective actions. It is not intended as a debate on the merits of capital punishment. Rather it recommends ways in which to repair the law so it can be administered in a rational and even-handed manner.

Capital litigation is complex. It places extraordinary burdens on all those involved--the courts, the prosecutors, the defense lawyers and the defendants, the defendants’ families and the victims’ families. Despite those burdens, all those involved want to see fair trials and reliable verdicts.

The problems identified in this report call into question the fairness and reliability that the participants and society count on when a life is to be taken as punishment for a crime. Because the problems in Ohio’s capital punishment system are so fundamental, and because of the dignity that should be afforded every human life, the following recommendations should be implemented.

1. Indigent Capital Defendants Must Be Provided With Appointed Counsel Whose Effectiveness Is Not Undermined By Inadequate Compensation And Inadequate Funding For Experts.

Indigent capital defendants are not provided effective assistance of counsel when appointed defense counsel are grossly underpaid. Some counties in Ohio pay as little as $25.00 and hour and/or a maximum of $2,500.00 for representation in a capital trial. Fees for representation after trial are even lower. As a practical matter lawyers who are not fairly paid cannot provide quality representation. This is true at trial, on appeal and in state post conviction proceedings.

Appointing counsel at rates less than their overhead costs creates an ethical dilemma as well as the obvious practical problems. In effect it causes defense counsel to subsidize the prosecution of his or her own client.

RECOMMENDATION: Create a statewide fee schedule for paying appointed counsel that reflects the economic realities of capital litigation. According to the Ohio State Bar Association 1994 Desktop Reference on the Economics of Law Practice in Ohio [Table 20], the median hourly billing rate for attorneys with three years of experience was $95.00 per hour. This should be the hourly rate paid appointed counsel in all counties and should be adjusted every five years for inflation and increased costs. The budget for each capital case should be $75,000.00 (including attorney’s fees and experts). Appellate and post conviction work is of equal value and importance. Attorney fees for both should be paid at the same hourly rate. The budget for a capital appeal should be $40,000. The capital post conviction budget should be the same as at trial. The courts should have authority to increase these amounts when the circumstances of the case call for it.

2. What Constitutes A Capital Crime Should Be Predictable Based On statewide Statutory Criteria. It Should Not Vary From County To County.

Decisions on which cases and which defendants will be capitally prosecuted are made under widely varying standards in different parts of the state. In some instances this is due to different prosecutors’ interpretation of the law. In other instances economics plays a role - some counties cannot afford the cost of a capital trial under the present, under funded system. In still other cases it is a matter of local sentimentality--a well known victim or a small town’s reaction to a killing--that causes a death penalty prosecution to be pursued. This results in a geographic disparity in use of the death penalty. What is a capital case in one county is a lesser crime in another. This is particularly true of killings which occur during the commission of a another crime because the statutes offer little guidance in how to distinguish a capital from a non-capital felony murder.

RECOMMENDATION: The death penalty statute should be re-drafted to more narrowly define those cases in which death is a possible punishment thus providing prosecuting attorneys with a guided discretion that will more accurately reflect a statewide view of what is a death penalty case.

RECOMMENDATION: The felony murder specification, Ohio Rev. Code §2929.04(A)(7), should be eliminated. Felony murder is already an aggravated murder under Ohio Rev. Code §2903.01 (B). Felony murders should become death eligible when a clearly defined statutory factor other than the defendant's participation in the felony is present.

3. The Death Penalty Must be Reserved For Only The Most Serious Of Crimes.

The factors that make a crime death eligible should be clearly identified and remain constant. The legislature and courts continually expand the situations that make a case death eligible. The legislature has done so by adding new aggravating circumstances to the list of factors that make crimes death eligible and by expansively redefining statutory terms used to describe death eligible crimes. The Ohio Supreme Court has done so by lessening the culpable mental state required for commission of aggravated murder, and by writing out of the law the requirement for a felony murder specification that the murder take place while the felony is being committed.

RECOMMENDATION: New aggravating circumstances should be added to the list of factors that make a crime death eligible with extreme care.

RECOMMENDATION: The jury instruction defining "purposely" when used in conjunction with an aggravated murder charge under Ohio Rev. Code §2903.01, should be set by statute to be, "A person acts purposely when it is his intention to cause the death of the person killed." This was the legislative intent when Ohio Rev. Code §2903.01 (D) was enacted but it has effectively been read out of the statute. The new language should appear in §2903.01. The reason for the existing confusion is that the statutory definition of "purposely" that appears in Ohio Rev. Code §2901.22(A) addresses two types of crimes: result oriented and conduct oriented. Aggravated murder falls into the first category but the definition for the second category is mistakenly used to instruct capital juries.

RECOMMENDATION: A required jury instruction on "prior calculation and design" as used in Ohio Rev. Code §2903.01(A) should be included in the statute and should include a requirement that there be, "studied care in planning or analyzing the means of the crime, as well as a scheme encompassing the death of the victim."

RECOMMENDATION: The felony murder specification should be eliminated from Ohio Rev. Code §2929.04(A)(7). If it is not, the word "while" should be defined, and juries should be instructed that it means that the killing occurred during the time in which the underlying felony was being committed, attempted, or the offender was fleeing the scene after committing or attempting to commit the underlying felony.

4. Racial Disparity In Use Of The Death Penalty Must Be Eliminated

Ohio, like the rest of the nation, has failed to eliminate racism from its criminal justice system. Nowhere is this more damaging and unfair than in capital charging and sentencing decisions. The effects of racism may be remedied or at least recompensed in other situations, but an execution influenced by racial bias can never be undone.

Ohio has recognized the fact that race plays an inexplicable role in the criminal justice process. Office of Criminal Justice Services, "The State of Crime and Criminal Justice in Ohio," p.22 (1995). Repeated studies show that race is a factor in capital cases. See, U.S. General Accounting Office, "Death Penalty Sentencing," (February 1990) GAO/GGD-90-57.

Currently only patterns of racial disparity in sentencing attributable to the trial judge may be the basis for post conviction relief in a capital case. Ohio Rev. Code §2953.21.

RECOMMENDATION: That Ohio Rev. Code §2953.21 be expanded to allow post conviction relief to be granted when the defendant demonstrates a pattern of racial disparity in the practices of any decision maker (not only the judge), whose decisions lead to the defendant's arrest, prosecution, or sentencing.

5. Juries Must Be Provided Clear Instruction On How to Determine Guilt/Innocence And Penalty.

Standard jury instructions fail to tell jurors how to perform the job of making a choice between life and death sentences. They fail to tell jurors how to weigh factors in favor of life against those that favor death. Jurors are not told whether to weigh multiple aggravating circumstances together against the mitigating circumstances or whether each aggravating circumstance must be weighed separately against all mitigating factors.

Scientific studies show that less than half of capital jurors understand the instructions they are given. The complex and legalistic language used in jury instructions makes them virtually unintelligible for many.

RECOMMENDATION: That standardized jury instructions for capital cases be devised and published with the caveat that in every case there may be cause to use additional or modified versions of same. These instructions must be written in plain, intelligible English. RECOMMENDATION: That the Ohio Judicial Conference appoint a committee of judges and members of the bar engaged in capital litigation to assist in creating these instructions and that these instructions be published in the Ohio Jury Instructions.

6. Swift Imposition of The Death Penalty Must Not Be Achieved At The Cost of Fairness and Reliability.

Recent efforts to speed up executions have come at the cost of reliability. Court of appeals review has been eliminated in capital cases. The one and only appeal goes directly to the Ohio Supreme Court. There is no requirement that counsel be appointed to present ineffective assistance of appellate counsel claims. Post conviction cases must now be filed in the trial court 180 days after the record on appeal is filed in the state supreme court.

RECOMMENDATION: That Ohio Rev. Code §2953.21 be amended to allow reasonable extensions of time for the filing of post conviction petitions when good cause for the extension is demonstrated.

RECOMMENDATION: That counsel be appointed following direct appellate review to determine whether effective assistance of appellate counsel was provided.

7. Separate And Unequal Systems For Appellate Review And Staying Imposition Of Sentence In Death Penalty Cases Deny Capital Defendants The Same Protection Of The Law That Is Afforded Those Charged With Less Serious Crimes.

Capital defendants are allowed one appeal that goes directly to the Ohio Supreme Court. All other criminal defendants appeal to the county court of appeals and have the right to seek discretionary review in the Ohio Supreme Court. They have two chances for review. Capital appellants have only one.

Courts of common pleas and courts of appeal have jurisdiction to stay judgments in all proceedings before them except capital cases in which an execution date has been set after the Ohio Supreme Court's direct appellate review. This means that the court that has subject matter jurisdiction of a case, and thus, all the new evidence before it, cannot stop an execution even if the court determines that the defendant is innocent.

RECOMMENDATION: That Ohio Rev. Code 2953.09, 2953.10, 2953.21 (H) be amended to return to the court having jurisdiction of the subject matter of a capital case the jurisdiction to determine when and whether to grant a stay of execution.

8. Death Sentenced Prisoners Must Be Provided With Counsel And A Copy Of the Record For Post Conviction Review Of the Capital Case.

There are no standards for appointment of post conviction counsel. No specialized training for post conviction counsel is offered or required under Ohio Supreme Court Rule 20 [formerly Rule 65].

Although the appeal and post conviction petition must be prepared at the same time, post conviction counsel is not provided with a copy of the record. Further, despite the change in the law which requires that post conviction counsel be provided in capital cases, (1) no funds have been provided to pay counsel, (2) there is no provision for expert assistance or investigative help, and (3) there is no provision for appointment of counsel for post conviction appeals.

RECOMMENDATION: That specialized training in capital post conviction litigation be required for appointed counsel.

RECOMMENDATION: That the indigent defendant be provided, at state expense, a copy of the record for post conviction review.

RECOMMENDATION: That post conviction counsel be given standing to participate in the record correction process.

9. The Defendant Must Not Be Denied Legitimate Defenses.

Ohio is the only state in the nation to place the burden of proof for the affirmative defense of self-defense on the accused. Ohio takes the same stance, that the defendant must prove his/her innocence, with all affirmative defenses. Ohio uses an overly stringent concept of the insanity defense that precludes its use by persons legitimately unable to stop themselves from committing a crime as a result of their mental illness. The Ohio Supreme Court, State v. Jenks, 61 Ohio St.3d 259 (1991), has retroactively applied a change in the standard of proof in cases based on circumstantial evidence so that all reasonable theories of innocence no longer need to be precluded before a verdict of guilt can be returned. The Ohio Supreme Court has refused to admit expert testimony relating to a defendant's mental retardation, mental illness or intoxication in the trial phase of capital trials.

RECOMMENDATION: That Ohio adopt the majority practice on affirmative defenses, such as self-defense, and require the state to prove that the conduct was illegal rather than require the defense to prove it was not.

RECOMMENDATION: That Ohio adopt the irresistible impulse definition of insanity.

RECOMMENDATION: That the decisions in State v. Jenks , 61 Ohio St.3d 259 (1991) not be applied retroactively and that all cases in which it was applied retroactively be reviewed to determine whether the conviction is valid under the law that existed at the time the case was tried and that the jury instruction on circumstantial evidence be restored.

If the death penalty is to serve legitimate societal purposes the processes by which it is imposed must be fair and the sentences rendered must be reliable. This is the one point upon which supporters and opponents agree. The changes recommended serve that common goal. No individual should be executed unless and until it is determined that none of the factors identified have undermined the reliability of his capital sentence. Steps should be taken by Ohio’s courts, legislature, and governor, to insure that all of these safeguards are in place and observed in every case.