HB1738ham003 97TH GENERAL ASSEMBLY

Rep. Karen A. Yarbrough

Filed: 4/27/2011

09700HB1738ham003 LRB097 09651 RLC 54776 a

AMENDMENT TO HOUSE BILL 1738

AMENDMENT NO. ______. Amend House Bill 1738, AS AMENDED, by inserting immediately below the enacting clause the following:

"Section 2. The Department of State Police Law of the Civil Administrative Code of Illinois is amended by changing Section 2605-90 as follows:

(20 ILCS 2605/2605-90)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 2605-90. Training; death and homicide investigations. The Department shall provide training in death and homicide investigation for State police officers. The training shall include: (1) ensuring compatibility of equipment for electronic recording of interrogations, (2) how to sound proof rooms during interrogations, (3) reviewing and transcribing recordings, (4) storage of tapes and discs, and (5) the use of recording equipment and proper interviewing techniques. Only State police officers who successfully complete the training may be assigned as lead investigators in death and homicide investigations. Satisfactory completion of the training shall be evidenced by a certificate issued to the officer by the Department.

(Source: P.A. 96-1111, eff. 1-1-12.)

Section 2.1. The Illinois Criminal Justice Information Act is amended by changing Sections 7.5 and 7.6 as follows:

(20 ILCS 3930/7.5)

Sec. 7.5. Grants for electronic recording equipment.

(a) The Authority, from appropriations made to it for that purpose, shall make grants to local law enforcement agencies for the purpose of: (1) purchasing equipment for electronic recording of interrogations and (2) offsetting the expenses incurred in ensuring equipment compatibility, sound proofing of rooms during interrogations, reviewing and transcribing recordings, storage of tapes and discs, and law enforcement officer training in the use of recording equipment and proper interviewing techniques.

(b) The Authority shall promulgate rules to implement this Section.

(Source: P.A. 93-206, eff. 7-18-03; 93-517, eff. 8-6-03.)

(20 ILCS 3930/7.6)

Sec. 7.6. Capital Crimes Database.

(a) A Subject to appropriation, a Capital Crimes Database shall be created within the Illinois Criminal Justice Information Authority (ICJIA). The General Assembly shall appropriate moneys to the ICJIA for the purposes of implementing this Section.

(b) The ICJIA shall collect and retain in the Capital Crimes Database all information on the prosecution, pendency, and disposition of capital and capital eligible cases in Illinois, including the races of the defendants and victims. The Capital Crimes Database shall serve as a repository for all of the foregoing collected information.

(c) The ICJIA shall develop administrative rules to provide for the coordination and collection of information in the Capital Crimes Database.

(d) Agencies required to provide information on capital cases to the ICJIA, as the ICJIA may request, for the Capital Crimes Database shall include, but not be limited to:

(1) Office of the Attorney General.

(2) Illinois Department of Corrections.

(3) Illinois State Police.

(4) All county State's Attorneys.

(5) All county public defenders.

(6) Office of the State's Attorneys Appellate Prosecutor.

(7) Office of the State Appellate Defender.

(e) Agencies requested to provide information on capital cases to the ICJIA for the Capital Crimes Database shall include, but not be limited to:

(1) Administrative Office of Illinois Courts.

(2) All county circuit court clerks.

(f) The ICJIA shall develop procedures and protocols for the submission of information relating to capital and capital eligible cases to the Database in conjunction with the agencies submitting information.

(Source: P.A. 95-688, eff. 10-23-07.)"; and

by inserting immediately after the last line of Section 3 the following:

"Section 4. The Illinois Police Training Act is amended by changing Section 10.11 as follows:

(50 ILCS 705/10.11)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 10.11. Training; death and homicide investigation. The Illinois Law Enforcement Training and Standards Board shall conduct or approve a training program in death and homicide investigation for the training of law enforcement officers of local government agencies. The training shall include: (1) ensuring compatibility of equipment for electronic recording of interrogations, (2) how to sound proof rooms during interrogations, (3) reviewing and transcribing recordings, (4) storage of tapes and discs, and (5) the use of recording equipment and proper interviewing techniques. Only law enforcement officers who successfully complete the training program may be assigned as lead investigators in death and homicide investigations. Satisfactory completion of the training program shall be evidenced by a certificate issued to the law enforcement officer by the Illinois Law Enforcement Training and Standards Board.

(Source: P.A. 96-1111, eff. 1-1-12.)"; and

in Sec. 9-1 of Section 5, by inserting immediately below the last line of subsection (h-5) the following:

"(h-6) Trial judge overturning death sentence.

Upon application of the State or the defendant or upon the court's own motion, the trial judge who presided over a capital case in which the jury determined that death was the appropriate sentence may overturn the jury verdict of death, if the court determines that imposition of the death penalty is unjust, and may sentence the defendant to a term of natural life imprisonment."; and

in Sec. 9-1 of Section 5, by inserting immediately below the last line of subsection (k) the following:

"(l) Statewide Death Penalty Review Committee.

Subject to constitutional limitations, the Statewide Death Penalty Review Committee is established to review all decisions to seek capital punishment, with authority to approve or disapprove the State's Attorney's decision or position. The Committee shall be composed of the Governor, the Attorney General, a Circuit Judge appointed by the Chief Justice of the Supreme Court, a public defender appointed by the State Appellate Defender, the Cook County State's Attorney, and a State's Attorney in a county of less than 3,000,000 inhabitants appointed by the Executive Director of the Office of the State's Attorneys Appellate Prosecutor."; and

by inserting after the last line of Section 10 the following:

"Section 15. The Code of Criminal Procedure of 1963 is amended by changing Section 107A-5 as follows:

(725 ILCS 5/107A-5)

Sec. 107A-5. Lineup and photo spread procedure.

(a) All lineups shall be photographed or otherwise recorded. These photographs shall be disclosed to the accused and his or her defense counsel during discovery proceedings as provided in Illinois Supreme Court Rules. All photographs of suspects shown to an eyewitness during the photo spread shall be disclosed to the accused and his or her defense counsel during discovery proceedings as provided in Illinois Supreme Court Rules.

(b) Each eyewitness who views a lineup or photo spread shall sign a form containing the following information:

(1) The suspect might not be in the lineup or photo spread and the eyewitness is not obligated to make an identification.

(2) The eyewitness should not assume that the person administering the lineup or photo spread knows which person is the suspect in the case.

(c) Suspects in a lineup or photo spread should not appear to be substantially different from "fillers" or "distracters" in the lineup or photo spread, based on the eyewitness' previous description of the perpetrator, or based on other factors that would draw attention to the suspect.

(d) In homicide investigations, all eyewitness identification procedures must be electronically recorded by both audio and video equipment.

(e) In homicide investigations, blind administration shall be required of all eyewitness identification procedures. Blind administration may be achieved by use of either of 2 methods:

(1) the administrator may not be aware of which person or photograph in the array is the police suspect and which are the fillers. The administrator must assign a number to each person in the array, and use that number when recording the witness' response; or

(2) when pictures are used, the administrator may know the identity of the suspect, but may not know which person in the array the witness is viewing. The administrator must assign a number to each picture, which must be placed in folders or displayed on a computer screen. The administrator should then shuffle the folders or computer screen pictures. The administrator may not be aware of the number or position of the suspect, and may not look at the pictures as the witness views them.

In using either method, the administrator may permit the witness to view the array more than one time, provided that the entire array is shown to the witness each time. When a blind administration is used in a homicide investigation, sequential procedures must be used, that is, the persons or pictures must be displayed to the witness one at a time. Using the assigned numbers, the administrator must record in writing or electronically the witness' response to each person or picture, before showing the witness the next person or picture.

(Source: P.A. 93-605, eff. 11-19-03.)

Section 20. The Capital Crimes Litigation Act is amended by changing Section 15 as follows:

(725 ILCS 124/15)

(Section scheduled to be repealed on January 1, 2012)

Sec. 15. Capital Litigation Trust Fund.

(a) The Capital Litigation Trust Fund is created as a special fund in the State Treasury. The Trust Fund shall be administered by the State Treasurer to provide moneys for the appropriations to be made, grants to be awarded, and compensation and expenses to be paid under this Act. All interest earned from the investment or deposit of moneys accumulated in the Trust Fund shall, under Section 4.1 of the State Finance Act, be deposited into the Trust Fund.

(b) Moneys deposited into the Trust Fund shall not be considered general revenue of the State of Illinois.

(c) Moneys deposited into the Trust Fund shall be used exclusively for the purposes of providing funding for the prosecution and defense of capital cases and for providing funding for post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases as provided in this Act and shall not be appropriated, loaned, or in any manner transferred to the General Revenue Fund of the State of Illinois.

(d) Every fiscal year the State Treasurer shall transfer from the General Revenue Fund to the Capital Litigation Trust Fund an amount equal to the full amount of moneys appropriated by the General Assembly (both by original and supplemental appropriation), less any unexpended balance from the previous fiscal year, from the Capital Litigation Trust Fund for the specific purpose of making funding available for the prosecution and defense of capital cases and for the litigation expenses associated with post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases. The Public Defender and State's Attorney in Cook County, the State Appellate Defender, the State's Attorneys Appellate Prosecutor, and the Attorney General shall make annual requests for appropriations from the Trust Fund.

(1) The Public Defender in Cook County shall request appropriations to the State Treasurer for expenses incurred by the Public Defender and for funding for private appointed defense counsel in Cook County.

(2) The State's Attorney in Cook County shall request an appropriation to the State Treasurer for expenses incurred by the State's Attorney.

(3) The State Appellate Defender shall request a direct appropriation from the Trust Fund for expenses incurred by the State Appellate Defender in providing assistance to trial attorneys under item (c)(5) of Section 10 of the State Appellate Defender Act and for expenses incurred by the State Appellate Defender in representing petitioners in capital cases in post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases and for the representation of those petitioners by attorneys approved by or contracted with the State Appellate Defender and an appropriation to the State Treasurer for payments from the Trust Fund for the defense of cases in counties other than Cook County.

(4) The State's Attorneys Appellate Prosecutor shall request a direct appropriation from the Trust Fund to pay expenses incurred by the State's Attorneys Appellate Prosecutor and an appropriation to the State Treasurer for payments from the Trust Fund for expenses incurred by State's Attorneys in counties other than Cook County.

(5) The Attorney General shall request a direct appropriation from the Trust Fund to pay expenses incurred by the Attorney General in assisting the State's Attorneys in counties other than Cook County and to pay for expenses incurred by the Attorney General when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases and for expenses incurred by the Attorney General in representing the State in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases.

The Public Defender and State's Attorney in Cook County, the State Appellate Defender, the State's Attorneys Appellate Prosecutor, and the Attorney General may each request supplemental appropriations from the Trust Fund during the fiscal year.

(e) Moneys in the Trust Fund shall be expended only as follows:

(1) To pay the State Treasurer's costs to administer the Trust Fund. The amount for this purpose may not exceed 5% in any one fiscal year of the amount otherwise appropriated from the Trust Fund in the same fiscal year.

(2) To pay the capital litigation expenses of trial defense and post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases including, but not limited to, DNA testing, including DNA testing under Section 116-3 of the Code of Criminal Procedure of 1963, analysis, and expert testimony, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists, and grants and aid provided to public defenders, appellate defenders, and any attorney approved by or contracted with the State Appellate Defender representing petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases or assistance to attorneys who have been appointed by the court to represent defendants who are charged with capital crimes. Reasonable and necessary capital litigation expenses include travel and per diem (lodging, meals, and incidental expenses).

(3) To pay the compensation of trial attorneys, other than public defenders or appellate defenders, who have been appointed by the court to represent defendants who are charged with capital crimes or attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases.

(4) To provide State's Attorneys with funding for capital litigation expenses and for expenses of representing the State in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases including, but not limited to, investigatory and other assistance and expert, forensic, and other witnesses necessary to prosecute capital cases. State's Attorneys in any county other than Cook County seeking funding for capital litigation expenses and for expenses of representing the State in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases including, but not limited to, investigatory and other assistance and expert, forensic, or other witnesses under this Section may request that the State's Attorneys Appellate Prosecutor or the Attorney General, as the case may be, certify the expenses as reasonable, necessary, and appropriate for payment from the Trust Fund, on a form created by the State Treasurer. Upon certification of the expenses and delivery of the certification to the State Treasurer, the Treasurer shall pay the expenses directly from the Capital Litigation Trust Fund if there are sufficient moneys in the Trust Fund to pay the expenses.

(5) To provide financial support through the Attorney General pursuant to the Attorney General Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the Attorney General's Office, except when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases.

(6) To provide financial support through the State's Attorneys Appellate Prosecutor pursuant to the State's Attorneys Appellate Prosecutor's Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the State's Attorneys Appellate Prosecutor.

(7) To provide financial support to the State Appellate Defender pursuant to the State Appellate Defender Act.

(8) To provide financial support for victims' services in capital cases.

Moneys expended from the Trust Fund shall be in addition to county funding for Public Defenders and State's Attorneys, and shall not be used to supplant or reduce ordinary and customary county funding.

(f) Moneys in the Trust Fund shall be appropriated to the State Appellate Defender, the State's Attorneys Appellate Prosecutor, the Attorney General, and the State Treasurer. The State Appellate Defender shall receive an appropriation from the Trust Fund to enable it to provide assistance to appointed defense counsel and attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases throughout the State and to Public Defenders in counties other than Cook. The State's Attorneys Appellate Prosecutor and the Attorney General shall receive appropriations from the Trust Fund to enable them to provide assistance to State's Attorneys in counties other than Cook County and when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases. Moneys shall be appropriated to the State Treasurer to enable the Treasurer (i) to make grants to Cook County, (ii) to pay the expenses of Public Defenders, the State Appellate Defender, the Attorney General, the Office of the State's Attorneys Appellate Prosecutor, and State's Attorneys in counties other than Cook County, (iii) to pay the expenses and compensation of appointed defense counsel and attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases in counties other than Cook County, and (iv) to pay the costs of administering the Trust Fund. All expenditures and grants made from the Trust Fund shall be subject to audit by the Auditor General.

(g) For Cook County, grants from the Trust Fund shall be made and administered as follows:

(1) For each State fiscal year, the State's Attorney and Public Defender must each make a separate application to the State Treasurer for capital litigation grants.

(2) The State Treasurer shall establish rules and procedures for grant applications. The rules shall require the Cook County Treasurer as the grant recipient to report on a periodic basis to the State Treasurer how much of the grant has been expended, how much of the grant is remaining, and the purposes for which the grant has been used. The rules may also require the Cook County Treasurer to certify on a periodic basis that expenditures of the funds have been made for expenses that are reasonable, necessary, and appropriate for payment from the Trust Fund.

(3) The State Treasurer shall make the grants to the Cook County Treasurer as soon as possible after the beginning of the State fiscal year.

(4) The State's Attorney or Public Defender may apply for supplemental grants during the fiscal year.

(5) Grant moneys shall be paid to the Cook County Treasurer in block grants and held in separate accounts for the State's Attorney, the Public Defender, and court appointed defense counsel other than the Cook County Public Defender, respectively, for the designated fiscal year, and are not subject to county appropriation.

(6) Expenditure of grant moneys under this subsection (g) is subject to audit by the Auditor General.

(7) The Cook County Treasurer shall immediately make payment from the appropriate separate account in the county treasury for capital litigation expenses to the State's Attorney, Public Defender, or court appointed defense counsel other than the Public Defender, as the case may be, upon order of the State's Attorney, Public Defender or the court, respectively.

(h) If a defendant in a capital case in Cook County is represented by court appointed counsel other than the Cook County Public Defender, the appointed counsel shall petition the court for an order directing the Cook County Treasurer to pay the court appointed counsel's reasonable and necessary compensation and capital litigation expenses from grant moneys provided from the Trust Fund. The petitions shall be supported by itemized bills showing the date, the amount of time spent, the work done and the total being charged for each entry. The court shall not authorize payment of bills that are not properly itemized. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. The petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information requests until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing. Orders denying petitions for compensation or expenses are final. Counsel may not petition for expenses that may have been provided or compensated by the State Appellate Defender under item (c)(5) of Section 10 of the State Appellate Defender Act.

(i) In counties other than Cook County, and when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases, and excluding capital litigation expenses or services that may have been provided by the State Appellate Defender under item (c)(5) of Section 10 of the State Appellate Defender Act:

(1) Upon certification by the circuit court, on a form created by the State Treasurer, that all or a portion of the expenses are reasonable, necessary, and appropriate for payment from the Trust Fund and the court's delivery of the certification to the Treasurer, the Treasurer shall pay the certified expenses of Public Defenders and the State Appellate Defender from the money appropriated to the Treasurer for capital litigation expenses of Public Defenders and post-conviction proceeding expenses in capital cases of the State Appellate Defender and expenses in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases in any county other than Cook County, if there are sufficient moneys in the Trust Fund to pay the expenses.

(2) If a defendant in a capital case is represented by court appointed counsel other than the Public Defender, the appointed counsel shall petition the court to certify compensation and capital litigation expenses including, but not limited to, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists as reasonable, necessary, and appropriate for payment from the Trust Fund. If a petitioner in a capital case who has filed a petition for post-conviction relief under Article 122 of the Code of Criminal Procedure of 1963 or a petition under Section 2-1401 of the Code of Civil Procedure in relation to capital cases is represented by an attorney approved by or contracted with the State Appellate Defender other than the State Appellate Defender, that attorney shall petition the court to certify compensation and litigation expenses of post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 or in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases. Upon certification on a form created by the State Treasurer of all or a portion of the compensation and expenses certified as reasonable, necessary, and appropriate for payment from the Trust Fund and the court's delivery of the certification to the Treasurer, the State Treasurer shall pay the certified compensation and expenses from the money appropriated to the Treasurer for that purpose, if there are sufficient moneys in the Trust Fund to make those payments.

(3) A petition for capital litigation expenses or post-conviction proceeding expenses or expenses incurred in filing a petition under Section 2-1401 of the Code of Civil Procedure in relation to capital cases under this subsection shall be considered under seal and reviewed ex parte with a court reporter present. Orders denying petitions for compensation or expenses are final.

(i-5) The General Assembly shall fully fund the Capital Litigation Trust Fund to pay for trial expenses, and where appropriate appellate expenses, of the prosecutor and defense in capital prosecutions in all areas of the State.

(j) If the Trust Fund is discontinued or dissolved by an Act of the General Assembly or by operation of law, any balance remaining in the Trust Fund shall be returned to the General Revenue Fund after deduction of administrative costs, any other provision of this Act to the contrary notwithstanding.

(Source: P.A. 96-381, eff. 1-1-10. Repealed by P.A. 96-1543, eff. 1-1-12.)

(P.A. 96-1543, Sec. 15 rep.)

Section 25. "An Act concerning criminal law", approved March 9, 2011, Public Act 96-1543, is amended by repealing Section 15.

Section 99. Effective date. This Act takes effect January 1, 2012, except that this Section and Section 25 take effect July 1, 2011.".