101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB0180

 

Introduced , by Rep. Mary E. Flowers

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Wrongful Prosecution Commission Act. Creates the Wrongful Prosecution Commission as an independent commission under the Illinois Human Rights Commission for administrative purposes. Defines "claim of wrongful prosecution" as a claim by or on behalf of a living person convicted of a crime in a county of more than 3,000,000 inhabitants asserting that the person was falsely incriminated for the crime and there is credible evidence related to allegations of the use of false evidence to obtain the conviction. Defines other terms. Provides that the Commission shall conduct inquiries into claims of wrongful prosecution. Provides that if the Commission concludes there is sufficient evidence of wrongful prosecution to merit judicial review, the Chair of the Commission shall request that the Chief Judge of the Circuit Court of Cook County assign the case to a trial judge for consideration. Provides that the Act applies to claims of wrongful prosecution filed not later than 5 years after the effective date of the Act. Repeals the Act 10 years after the effective date. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning wrongful prosecution.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Wrongful Prosecution Commission Act.
 
6    Section 5. Definitions. As used in this Act:
7    "Claim of wrongful prosecution" means a claim by or on
8behalf of a living person convicted of a crime in a county of
9more than 3,000,000 inhabitants asserting that the person was
10falsely incriminated for the crime and there is credible
11evidence related to allegations of the use of false evidence to
12obtain the conviction.
13    "Commission" means the Wrongful Prosecution Commission
14established by this Act.
15    "Convicted person" means the person making a claim of
16wrongful prosecution under this Act.
17    "Director" means the Director of the Wrongful Prosecution
18Commission.
19    "Victim" means the victim of the crime, or if the victim of
20the crime is deceased, the parent, spouse, child, or sibling of
21the deceased victim.
 
22    Section 10. Purpose of Act. This Act establishes an

 

 

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1extraordinary procedure to investigate and determine factual
2claims of wrongful prosecution related to allegations of
3wrongful prosecution that shall require an individual to
4voluntarily waive rights and privileges as described in this
5Act.
 
6    Section 15. Commission established.
7    (a) The Wrongful Prosecution Commission is established as
8an independent commission under the Illinois Human Rights
9Commission for administrative purposes.
10    (b) The Illinois Human Rights Commission shall provide
11administrative support to the Commission as needed. The
12Executive Director of the Illinois Human Rights Commission
13shall not reduce or modify the budget of the Commission or use
14funds appropriated to the Commission without the approval of
15the Commission.
 
16    Section 20. Membership; chair; meetings; quorum.
17    (a) The Commission shall consist of 8 voting members as
18follows:
19        (1) One shall be a retired Circuit Court Judge.
20        (2) One shall be a former prosecuting attorney.
21        (3) One shall be a law school professor.
22        (4) One shall be engaged in the practice of criminal
23    defense law.
24        (5) Three shall be members of the public who are not

 

 

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1    attorneys and who are not officers or employees of the
2    Judicial branch.
3        (6) One shall be a former public defender.
4    The members of the Commission shall be appointed by the
5Governor, with the advice and consent of the Senate. Members
6may be reappointed for additional terms, as provided under
7Section 25. In making the appointments, the Governor shall make
8a good faith effort to appoint members with different
9perspectives of the justice system. The Governor shall also
10consider geographical location, gender, and racial diversity
11in making the appointments.
12    (b) In the event of scheduling conflicts, conflicts of
13interest, disability, or other disqualification arising in a
14particular case, the Governor shall appoint alternate
15Commission members for the Commission members he or she has
16appointed to serve. If an alternate member is called upon to
17serve, the alternate member shall vote in the place of and
18otherwise exercise the same powers as the member which he or
19she is replacing. The alternate member shall have the same
20qualifications for appointment as the original member.
21    (c) The retired judge who is appointed as a member under
22subsection (a) shall serve as Chair of the Commission. The
23Commission shall have its initial meeting no later than one
24month after the appointment of a quorum of members of the
25Commission, at the call of the Chair. The Commission shall meet
26a minimum of once every 6 months and may meet more often at the

 

 

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1call of the Chair. The Commission shall meet at such time and
2place as designated by the Chair, in accordance with the
3provisions of the Open Meetings Act. Notice of the meetings
4shall be given at such time and manner as provided by the rules
5of the Commission, in accordance with the provisions of the
6Open Meetings Act. A majority of the voting members shall
7constitute a quorum. All Commission votes shall be by majority
8vote of the voting members appointed.
 
9    Section 25. Terms of members; compensation; expenses.
10    (a) Of the initial members, the appointments under
11paragraphs (3) and (6) of subsection (a) of Section 20 shall be
12for one-year terms, the appointments under paragraphs (1), (2),
13and (4) of subsection (a) of Section 20 shall be for 2-year
14terms, and the appointments under paragraph (5) of subsection
15(a) of Section 20 shall be for 3-year terms. Thereafter, all
16terms shall be for 3 years. Members of the Commission shall
17serve no more than 2 consecutive 3-year terms plus any initial
18term of less than 3 years. Except as otherwise provided by this
19Act, all terms of members shall begin on January 1 and end on
20December 31.
21    A member serving by virtue of elective or appointive office
22may serve only so long as the member holds the respective
23office. The Chief Judge of the Cook County Circuit Court may
24remove members for good cause shown. Vacancies occurring before
25the expiration of a term shall be filled in the manner provided

 

 

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1for the members first appointed.
2    (b) The Commission members shall receive no salary for
3serving, but may be reimbursed for reasonable expenses incurred
4as a result of their duties as members of the Commission from
5funds appropriated by the General Assembly for that purpose or
6from funds obtained from sources other than the General
7Assembly.
 
8    Section 30. Director and other staff. The Commission shall
9employ a Director. The Director shall be an attorney licensed
10to practice in Illinois at the time of appointment and at all
11times during service as Director. The Director shall assist the
12Commission in developing rules and standards for cases accepted
13for review, coordinate investigation of cases accepted for
14review, maintain records for all case investigations, prepare
15reports outlining Commission investigations and
16recommendations to the trial court, and apply for and accept on
17behalf of the Commission any funds that may become available
18from government grants, private gifts, donations, or bequests
19from any source.
20    Subject to the approval of the Chair, the Director shall
21employ such other staff and shall contract for services as is
22necessary to assist the Commission in the performance of its
23duties and as funds permit.
24    The Commission may meet in an area provided by the Illinois
25Human Rights Commission or any other State agency. The Illinois

 

 

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1Human Rights Commission shall provide, directly or through any
2other State agency, office space for the Commission and the
3Commission staff.
 
4    Section 35. Duties. The Commission shall have the
5following duties and powers:
6        (1) To establish the criteria and screening process to
7    be used to determine which cases shall be accepted for
8    review.
9        (2) To conduct inquiries into claims of wrongful
10    prosecution.
11        (3) To coordinate the investigation of cases accepted
12    for review.
13        (4) To maintain records for all case investigations.
14        (5) To prepare written reports outlining Commission
15    investigations and recommendations to the trial court at
16    the completion of each inquiry.
17        (6) To apply for and accept any funds that may become
18    available for the Commission's work from government
19    grants, private gifts, donations, or bequests from any
20    source.
 
21    Section 40. Claims of wrongful prosecution; waiver of
22convicted person's procedural safeguards and privileges;
23formal inquiry; notification of the crime victim.
24    (a) A claim of wrongful prosecution may be referred to the

 

 

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1Commission by any court, person, or agency. The Commission
2shall not consider a claim of wrongful prosecution if the
3convicted person is deceased. The determination of whether to
4grant a formal inquiry regarding any other claim of wrongful
5prosecution is in the discretion of the Commission. The
6Commission may informally screen and dismiss a case summarily
7at its discretion.
8    (b) No formal inquiry into a claim of wrongful prosecution
9shall be made by the Commission unless the Director or the
10Director's designee first obtains a signed agreement from the
11convicted person in which the convicted person waives his or
12her procedural safeguards and privileges, including, but not
13limited to, the right against self-incrimination under the
14United States Constitution and the Constitution of the State of
15Illinois, agrees to cooperate with the Commission, and agrees
16to provide full disclosure regarding inquiry requirements of
17the Commission. The waiver under this subsection does not apply
18to matters unrelated to a convicted person's claim of wrongful
19prosecution. The convicted person has the right to advice of
20counsel prior to the execution of the agreement and, if a
21formal inquiry is granted, throughout the formal inquiry. If
22counsel represents the convicted person, then the convicted
23person's counsel must be present at the signing of the
24agreement. If counsel does not represent the convicted person,
25the Commission Chair shall determine the convicted person's
26indigency status and, if appropriate, enter an order for the

 

 

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1appointment of counsel for the purpose of advising on the
2agreement.
3    (c) If a formal inquiry regarding a claim of wrongful
4prosecution is granted, the Director shall use all due
5diligence to notify the victim in the case and explain the
6inquiry process. The Commission shall give the victim notice
7that the victim has the right to present his or her views and
8concerns throughout the Commission's investigation.
9    (d) The Commission may use any measure provided in the Code
10of Civil Procedure and the Code of Criminal Procedure of 1963
11to obtain information necessary to its inquiry. The Commission
12may also do any of the following: issue subpoenas or other
13process to compel the attendance of witnesses and the
14production of evidence; administer oaths; petition the Circuit
15Court of Cook County or of the original jurisdiction for
16enforcement of process or for other relief; and prescribe its
17own rules of procedure. All challenges with regard to the
18Commission's authority or the Commission's access to evidence,
19including any in camera review, shall be heard by the Circuit
20Court of Cook County.
21    (e) While performing duties for the Commission, the
22Director or the Director's designee may serve subpoenas or
23other process issued by the Commission throughout the State in
24the same manner and with the same effect as an officer
25authorized to serve process under the laws of this State.
26    (f) All State discovery and disclosure statutes in effect

 

 

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1at the time of formal inquiry shall be enforceable as if the
2convicted person were currently being tried for the charge for
3which the convicted person is claiming wrongful prosecution.
4    (g) If, at any point during an inquiry, the convicted
5person refuses to comply with requests of the Commission or is
6otherwise deemed to be uncooperative by the Commission, the
7Commission shall discontinue the inquiry.
 
8    Section 45. Commission proceedings.
9    (a) At the completion of a formal inquiry, all relevant
10evidence shall be presented to the full Commission. As part of
11its proceedings, the Commission may conduct hearings. The
12determination whether to conduct hearings is solely in the
13discretion of the Commission. Any hearing held in accordance
14with this Section shall be a public hearing and shall be held
15subject to the Commission's rules of operation and conducted
16pursuant to the Open Meetings Act.
17    (b) The Director shall use all due diligence to notify the
18victim at least 30 days prior to any proceedings of the full
19Commission held in regard to the victim's case. The Commission
20shall notify the victim that the victim is permitted to attend
21proceedings otherwise closed to the public, subject to any
22limitations imposed by this Act, and subject to paragraph (14)
23of subsection (c) of Section 2 of the Open Meetings Act. If the
24victim plans to attend proceedings otherwise closed to the
25public, the victim shall notify the Commission at least 10 days

 

 

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1in advance of the proceedings of his or her intent to attend.
2The Commission may close any portion of the proceedings to the
3victim if the victim is to testify and the Commission
4determines that the victim's testimony would be materially
5affected by the victim hearing other testimony at the
6proceeding.
7    (c) After hearing the evidence, the full Commission shall
8vote to establish further case disposition as provided by this
9subsection. All 8 voting members of the Commission shall
10participate in that vote.
11    If 5 or more of the 8 voting members of the Commission
12conclude by a preponderance of the evidence that there is
13sufficient evidence of wrongful prosecution to merit judicial
14review, the case shall be referred to the Chief Judge of the
15Circuit Court of Cook County by filing with the clerk of court
16the opinion of the Commission with supporting findings of fact,
17as well as the record in support of the opinion, with service
18on the State's Attorney in non-capital cases and service on
19both the State's Attorney and Attorney General in capital
20cases.
21    If less than 5 of the 8 voting members of the Commission
22conclude by a preponderance of the evidence that there is
23sufficient evidence of wrongful prosecution to merit judicial
24review, the Commission shall conclude there is insufficient
25evidence of wrongful prosecution to merit judicial review. The
26Commission shall document that opinion, along with supporting

 

 

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1findings of fact, and file those documents and supporting
2materials with the court clerk in the circuit of original
3jurisdiction, with a copy to the State's Attorney and the chief
4judge.
5    The Director of the Commission shall use all due diligence
6to immediately notify the victim of the Commission's conclusion
7in a case.
8    (d) Evidence of criminal acts, professional misconduct, or
9other wrongdoing disclosed through formal inquiry or
10Commission proceedings shall be referred to the appropriate
11authority. Evidence favorable to the convicted person
12disclosed through formal inquiry or Commission proceedings
13shall be disclosed to the convicted person and the convicted
14person's counsel, if the convicted person has counsel. The
15Commission shall have the discretion to refer its findings,
16together with the supporting record and evidence, to such other
17parties or entities as the Commission in its discretion deems
18appropriate.
19    (e) All proceedings of the Commission shall be recorded and
20transcribed as part of the record. All Commission member votes
21shall be recorded in the record. All records of the Commission
22shall be confidential until the proceedings before the
23Commission are concluded and a final decision is made by the
24Commission.
 
25    Section 50. Post-commission judicial review.

 

 

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1    (a) If the Commission concludes there is sufficient
2evidence of wrongful prosecution to merit judicial review, the
3Chair of the Commission shall request the Chief Judge of the
4Circuit Court of Cook County to assign the case to a trial
5judge for consideration. The court may receive proof by
6affidavits, depositions, oral testimony, or other evidence. In
7its discretion, the court may order the petitioner brought
8before the court for the hearing. Notwithstanding the status of
9any other postconviction proceedings relating to the
10petitioner, if the court finds in favor of the petitioner, it
11shall enter an appropriate order with respect to the judgment
12or sentence in the former proceedings and such supplementary
13orders as to rearraignment, retrial, custody, bail or
14discharge, or for such relief as may be granted under a
15petition for a certificate of innocence, as may be necessary
16and proper.
17    (b) The State's Attorney or the State's Attorney's designee
18shall represent the State at the hearing before the assigned
19judge.
 
20    Section 55. Further review of decision by Commission;
21postconviction relief.
22    (a) Unless otherwise authorized by this Act, the decision
23of the Commission is final and subject to review under the
24Administrative Review Law, and shall be overturned only if the
25court finds that the decision is against the manifest weight of

 

 

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1the evidence.
2    (b) A claim of wrongful prosecution brought before the
3Commission shall not adversely affect the convicted person's
4right to other postconviction relief.
 
5    Section 60. Report. Beginning January 1, 2020, and annually
6thereafter, the Wrongful Prosecution Commission shall report
7on its activities to the General Assembly and the Governor. The
8report may contain recommendations of any needed legislative
9changes related to the activities of the Commission. The report
10shall recommend the funding needed by the Commission, the
11State's Attorneys, and the Department of State Police in order
12to meet their responsibilities under this Act. Recommendations
13concerning the State's Attorneys or the Department of State
14Police shall be made only after consultations with the Illinois
15State's Attorneys Association, the Department of State Police,
16and the Attorney General.
 
17    Section 65. Appointment period. The initial members of the
18Wrongful Prosecution Commission shall be appointed not later
19than 3 months after the effective date of this Act. No claims
20of wrongful prosecution may be filed with the Commission until
21a quorum of members has been appointed.
 
22    Section 70. Filing of claims. This Act applies to claims of
23wrongful prosecution filed not later than 5 years after the

 

 

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1effective date of this Act.
 
2    Section 75. Repeal. This Act is repealed 10 years after the
3effective date of this Act.
 
4    Section 99. Effective date. This Act takes effect upon
5becoming law.