Cook County State’s Atty. Richard Devine on Thursday said he would recommend to the governor and a commission investigating the state’s death penalty system that all DNA evidence in potential capital cases be tested and preserved until the case is “fully resolved.”
Devine also said he supported creating a “Capital Litigation Trial Bar” to set minimum standards for judges and lawyers involved in capital cases, a recommendation similar to one first made by a judicial committee established by the Illinois Supreme Court.
“As long as we have a death penalty in Illinois, we must make sure that the process is fair, meticulous and just,” Devine told the City Club of Chicago at a luncheon. He said he expects to send his proposals to Gov. George Ryan within two weeks.
Devine’s other recommendations included: creating a jury instruction that would warn jurors to view the testimony of jailhouse informants with caution; more funding for the Illinois Crime Lab to carry out DNA testing; and additional opportunities for defense lawyers to meet with prosecutors before and after sentencing if they wish to further present their case against an execution.
The DNA-related proposals would systematize a ritual that fluctuatesdepending on what evidence defenders and prosecutors choose to pursue. Devine proposed all evidence that could be tested for DNA be gathered and analyzed before prosecutors decide to seek the death penalty. Testing would be performed as early as possible and results released to both sides.
The DNA evidence would then be preserved until the case is “fully resolved,” a phrase Devine said that in his opinion meant the DNA evidence could be discarded after all possible steps were taken to establish guilt or innocence.
His spokesman, Bob Benjamin, said Devine’s recommendation did not mean the evidence should be kept forever. He also said the proposals did not mention sanctions in case requirements were not met.
“Now such testing is done sometimes and not always,” Benjamin said. “Sometimes the defense attorneys don’t want you to do DNA testing because it would inculpate [the suspect]. This levels the field.”
Devine’s suggestions arrive at a time when the death penalty is an increasingly volatile topic in Illinois and across the country. A Tribune investigation last year unveiled revealed rampant problems in Illinois’ death penalty system, including use of unreliable evidence and appointments of defense attorneys with questionable records. Since Illinois reinstated capital punishment in 1977, 13 Death Row inmates have been cleared.
In January, Gov. George Ryan declared a moratorium on capital punishment in Illinois and announced the formation of a commission to study the system and make formal recommendations.
Reactions to Devine’s proposals included praise and concern.
“Some (of the ideas) are original, some aren’t, (but) they’re all excellent and the commission will consider them all very seriously,” said Judge Frank McGarr, chairman of the governor’s commission and former federal judge who was in Devine’s audience Thursday. He said he had “no idea” when the commission would finish its study.
Cook County Public Defender Rita Fry questioned the effectiveness of giving defense attorneys last-minute chances to convince prosecutors to stopexecutions, something Devine’s representatives said his office already allows.
“Frankly, it’s up to others, like the governor, at that point,” Fry said.
Gregory O’Reilly, the criminal justice counsel to the Cook County public defender’s office, said Devine’s recommendations were “welcome general statements of hopeful intent” but short on specifics.
“This did not address perhaps the two most critical problems that we’ve seen in Cook County: the methods of generating eyewitness identifications and the methods of interrogation,” O’Reilly said. “We think there’s an urgent need to address these problems because DNA has proved that numerous identifications are false and numerous confessions are false as well.”
Thomas Callum, chief judge in DuPage County and a member of the Special Supreme Court Committee on Capital Cases, which first recommended the creation of a Capital Litigation Trial Bar late last year, said he welcomed Devine’s support.
“The death penalty is the ultimate sentence,” Callum said. “You just want to make sure that if we are going to have that penalty, it’s done in the best way possible.”
