Prompted by disclosures of prosecutorial misconduct and wrongful convictions, dramatic proposals were unveiled Wednesday that would provide powerful tools to defense lawyers in criminal cases and safeguards against false testimony.
The proposed legislation, drafted by state Rep. James Durkin (R-Westchester) who chaired a House Special Committee on Prosecutorial Misconduct, would address concerns over the withholding of evidence by prosecutors and the use of jailhouse informants–issues that prompted Gov. George Ryan to declare a moratorium on executions.
Durkin said he expects strong opposition from prosecutors and law enforcement officials, but he said the proposals were aimed at weeding out the kinds of cases that result in wrongful convictions.
“Some people aren’t going to like what I’m proposing, but I don’t think we can just sit there with our head in the sand as has been going on for a long time,” he said in an interview Wednesday.
“Prosecutors don’t like change. They don’t want to do more than they have to do,” added Durkin, a former Cook County assistant state’s attorney. “But your good cases get better, weak cases are exposed … let’s wake up and do the right thing.”
Durkin’s proposals, which are expected to be considered during the November legislative session, would:
Require an automatic new trial in any case in which the prosecution intentionally withheld evidence favorable to the defense. When violations are unintentional, prosecutors would be required to prove beyond a reasonable doubt that the verdict in the case would have been the same even if the material been turned over. Currently, defendants carry the burden of showing that withheld evidence would have made a crucial difference in the trial’s outcome.
Require prosecutors to prove before the trial that testimony from jailhouse informants was reliable or the testimony would be barred from trial. Prosecutors also would be required to fully disclose other details about the informants, including their criminal history, and whether the informant was given any consideration on criminal charges or sentences in return for the testimony.Allow prosecutors and defense lawyers to take statements under oath from prospective trial witnesses, with the exception of police officers, victims and defendants. Only two states, Indiana and Florida, allow these pretrial depositions. The law is designed to eliminate “trial by ambush” and to give defense lawyers an initial attempt to assess jailhouse informant testimony. In civil lawsuits, lawyers on both sides already are permitted to take sworn statements from witnesses prior to trial.
Urge the Illinois Supreme Court to create a special jury instruction that would advise jurors to treat jailhouse informant testimony with particular caution.
Northwestern University law professor Lawrence Marshall, who has represented numerous wrongfully convicted defendants, praised the proposals as “a wonderful step in the right direction.” His clients have included Rolando Cruz, who was twice sent to Death Row following trials that included jailhouse-informant testimony. Cruz ultimately was acquitted at a third trial in DuPage County.
“Each of the proposals carries with it the potential for meaningful improvement of the current system,” Marshall said. “It is very heartening that someone as pro-prosecution as Rep. Durkin nonetheless recognizes that the current system is unfair and inadequate in its failure to protect against prosecutorial abuse.”
The proposals drew immediate opposition from DuPage County State’s Atty. Joseph Birkett, who may find a powerful ally in Senate Majority Leader James A. “Pate” Philip (R-Wood Dale), the DuPage Republican chairman. “I can’t believe anybody would want to put their name on this,” Birkett said. “It’s anti-law enforcement and anti-victim. You’re creating a hundred new loopholes for defendants to get off that have nothing to do with the guilt or innocence of the defendant. This will only inhibit the search for the truth.”
Birkett in particular objected to provisions that might make it harder to get informants’ testimony admitted in court.
“You’re taking away from the jury the right to weigh the credibility of the witness,” Birkett said.
The other proposals, he said, would result in needless delays and additional costs of prosecutions.
“Jim Durkin should know better than that. He was a prosecutor,” Birkett said. “I’d like to see the lawmakers in Springfield wake up and smell the coffee. It shouldn’t be headlines that drive public policy.”
House Speaker Michael J. Madigan (D-Chicago) formed Durkin’s committee in January 1999 following publication of a five-part Tribune series titled “Trial & Error: How prosecutors sacrifice justice to win.”
The series disclosed that nearly 400 homicide convictions had been overturned nationwide since 1963 because prosecutors knowingly used false evidence or failed to turn over evidence favorable to the defense. The reports also showed that, on average, a Cook County conviction has been overturned once a month for the past two decades because of prosecutorial misconduct.
Last fall, another Tribune series examined 285 capital cases in Illinois and exposed how bias, error and incompetence turned the state’s harshest punishment into its least credible.
On Jan. 30, Ryan declared a moratorium on the death penalty, denouncing the system as “fraught with error,” and cited the Tribune’s findings that questionable jailhouse-informant testimony had been used in at least 46 death penalty cases.
On Wednesday, a Ryan aide said the governor wanted to review the Durkin proposals before weighing in on themNoting that two Ryan task forces are already at work–one studying the death penalty and the other on a rewrite of the state’s criminal codes–Ryan spokesman Dave Urbanek said, “I think we might want to review the report and see if in any way it adds some value to those efforts.”
Durkin plans a public hearing in August to get comments on his proposals and to build support. Already lining up on his side this week are crucial House leaders who can help get the measures to the chamber for a vote.
House Majority Leader Barbara Flynn Currie (D-Chicago) said Wednesday that Durkin’s recommendations appear to be fair and that she thinks they would go a long way toward improving the system.
Philip’s support is needed before the measures will be called for a vote in the Senate. A Philip spokeswoman said the senator would have to look at the measures before making up his mind but noted that Philip would not want to make it harder for state’s attorneys to lock up criminals.
“We don’t ever want to tie the hands of prosecutors and prevent them from doing their jobs,” spokeswoman Patty Schuh said.
If Durkin’s proposal is to become law, it must pick up enough momentum to make it through the legislative process quickly. Lawmakers are scheduled to meet for only six days this fall, giving the measure barely enough time to clear committee and floor consideration in the House and Senate.
Durkin said he hopes enough of them will be on his side.
“When you’re down there in those courtrooms, you’re hesitant to accept change,” Durkin said. “But, ultimately, these proposals are going to turn around the swell of cases being reversed by appellate courts and the Supreme Court.”
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Read “Trial & Error: How prosecutors sacrifice justice to win” at chicagotribune.com
