HB1781 100TH GENERAL ASSEMBLY


 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB1781

 

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 clauses
11(a)(3) and (a)(6) of Section 20 shall be for one-year terms,
12the appointments under clauses (a)(1), (a)(2), and (a)(4) of
13Section 20 shall be for 2-year terms, and the appointments
14under clause (a)(5) of Section 20 shall be for 3-year terms.
15Thereafter, all terms shall be for 3 years. Members of the
16Commission shall serve no more than 2 consecutive 3-year terms
17plus any initial term of less than 3 years. Except as otherwise
18provided by this Act, all terms of members shall begin on
19January 1 and end on December 31.
20    A member serving by virtue of elective or appointive office
21may serve only so long as the member holds the respective
22office. The Chief Judge of the Cook County Circuit Court may
23remove members for good cause shown. Vacancies occurring before
24the expiration of a term shall be filled in the manner provided
25for the members first appointed.

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    (b) A claim of wrongful prosecution brought before the
2Commission shall not adversely affect the convicted person's
3right to other postconviction relief.
 
4    Section 60. Report. Beginning January 1, 2018, and annually
5thereafter, the Wrongful Prosecution Commission shall report
6on its activities to the General Assembly and the Governor. The
7report may contain recommendations of any needed legislative
8changes related to the activities of the Commission. The report
9shall recommend the funding needed by the Commission, the
10State's Attorneys, and the Department of State Police in order
11to meet their responsibilities under this Act. Recommendations
12concerning the State's Attorneys or the Department of State
13Police shall be made only after consultations with the Illinois
14State's Attorneys Association, the Department of State Police,
15and the Attorney General.
 
16    Section 65. Appointment period. The initial members of the
17Wrongful Prosecution Commission shall be appointed not later
18than 3 months after the effective date of this Act. No claims
19of wrongful prosecution may be filed with the Commission until
20a quorum of members have been appointed.
 
21    Section 70. Filing of claims. This Act applies to claims of
22wrongful prosecution filed not later than 5 years after the
23effective date of this Act.
 

 

 

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