|
NO. 81314 IN THE SUPREME COURT OF ILLINOIS Appeal from the Circuit Court (of Cook County, Illinois) No. 93-CR-15476-02 PEOPLE
OF THE STATE OF ILLINOIS, (Plaintiff-Appellee) BRIEF AND APPENDIX AMICUS CURIAE OF THE COALITION CONCERNED ABOUT THE EXECUTION OF THE INNOCENT ON BEHALF OF RONALD KLINER Locke E. Bowman Jean Maclean Snyder MacArthur Justice Center University of Chicago Law School, 1111 E. 60th Street, Chicago, Illinois 60637 (773) 753-4405
TABLE OF CONTENTS Table of Authorities iii INTRODUCTION AND STATEMENT OF INTEREST OF THE AMICI (ARGUMENT)
CONCLUSION 27 APPENDIX I: Chicago Tribune editorial of March 3, 1997 1 APPENDIX II: Erroneous Illinois Death Sentences and Convictions 2-17 APPENDIX III: ABA House of Delegates Final Resolution ofFebruary 3, 1997 and Report 18-32 TABLE OF AUTHORITIES ARGUMENT 9
Editorial, "Reality check on the death penalty?" ChicagoTribune A14 (March 3, 1997) 10 Death Penalty Information Center, Innocence and the Death Penalty:The Increasing Danger of Mistaken Executions (1997) 12 Gaines v. Thieret, 846 F.2d 402 (7th Cir. 1988) 12 Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), cert. denied, 493 U.S. 874 (1989) 12 Lewis v. Lane, 832 F.2d 1446 (7th Cir. 1987),cert. denied, 488 U.S. 829 (1988) 12
Woodson v. North Carolina, 428 U.S. 280, 287, 305 (1976) 13 Gardner v. Florida, 430 U.S. 349, 357-58 (1977) Beck v. Alabama, 447 U.S. 625, 638 (1980) 13 Eddings v. Oklahoma, 455 U.S. 104, 108 (1982) 14
People v. Lawson, 163 Ill. 2d 187, 644 N.E.2d 1172 (1994) 15 ABA House of Delegates Final Resolution of February 3, 1997 16 Editorial, "Reality check on the death penalty?" Chicago Tribune A14 (March 3, 1997) 16
People v. Orange, 168 Ill. 2d 138, 659 N.E.2d 935 (1995) 17
D. Baldus, G. Woodworth, and C. Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990) 19 McCleskey v. Kemp, 481 U.S. 279 (1987 ) 19 S.R. Gross, "The Risks of Death: Why ErroneousConvictions are Common in Capital Cases, 44 Buff.L. Rev. 469-79, 494 (1996) 20 H. Bedau and M. Radelet, Miscarriages of Justice inPotentially Capital Cases, 40 Stan. L. Rev. 21 (1987) 21
Herrera v. Collins, 506 U.S. 390, 399 (1993) 22 726 ILCS 5/122-1 22 28 U.S.C. § 2254 22
Ill. Const. 1970, art. VI, § 16 24 McDunn v. Williams, 156 Ill. 2d 288, 301-302 (1993) 24 People ex rel. Carey v. Strayhorn, 61 Ill. 2d 85, 89 (1975) 24
Illinois Supreme Court Rule 609(a) 27 CONCLUSION 27
NO. 81314 IN THE SUPREME COURT OF ILLINOIS Appeal from the Circuit Court) of Cook County, Illinois ) No. 93-CR-15476-02 PEOPLE OF THE STATE OF ILLINOIS, ) Plaintiff-Appellee, ) v. ) RONALD KLINER, ) Defendant-Appellant. ) ) Honorable Janice Bierman, Judge Presiding
INTRODUCTION AND STATEMENT OF INTEREST OF THE AMICI This brief is submitted in support of appellant Ronald Kliner. Mr. Kliner’s case, like every other capital appeal, presents this Court with the issue, upon affirmance, of when to fix the execution date. The amici urge this Court to exercise its supervisory authority and to take two unusual steps in addition to or instead of the customary setting of the execution date. First, this Court should establish a blue ribbon commission (the "Special Commission") pursuant to the Court’s supervisory authority and should direct the Commission to study a problem of extraordinary magnitude that has plagued the Illinois capital punishment process in recent years: the imposition of death sentences upon persons who, it is later learned, should never have been convicted of the offense. Second, for the period that the Commission is doing its work and until its report is evaluated, this Court should defer the setting of an execution date in this and every other capital appeal. This brief does not argue for or against any of the substantive claims of trial error that are presented in Mr. Kliner’s appeal. The brief also takes no position on whether Kliner is innocent of the crime of which he was convicted. This brief is being filed only for the two purposes set forth above. In Illinois, since capital punishment was reinstated in 1977, more people on death row have been released from prison because they were wrongfully convicted than have been executed. Several of these cases have generated enormous negative publicity concerning Illinois' capital punishment process. This Court's leadership is urgently required to dispel the cynical perception among some members of the public that the capital punishment process is flawed and unreliable. Decisive action by this Court -- including, in particular, the appointment of a Special Commission to study why this unacceptable state of affairs has occurred and to recommend changes to address this problem -- can begin to restore public confidence in the system. The amici are a coalition of persons and organizations who are concerned about the possibility of innocent people being put to death by the State of Illinois. The amici have varying positions on the death penalty. The amici believe in common, however, that Illinois has come too close, too often, to executing innocent people. Since the June 1977 reinstatement of the death penalty in Illinois, nine men convicted of capital crimes and sentenced to death have been released from prison after a determination that they never should have been convicted. Seven of these releases have occurred within the past four years. This is an alarming rate of error -- one that should not be tolerated. The release of these men reflects favorably upon the scrutiny provided by this Court. However, the convictions and sentences show that repeated and fundamental mistakes have beset the investigation, charging and trial process. Thoughtful analysis as to why these near fatal mistakes have occurred and how they can be minimized is essential. Given the irrevocability of a wrongful execution, there should be a moratorium on the setting of further execution dates, until that process of analysis is concluded. The amici are: ORGANIZATIONS (In alphabetical order) American Civil Liberties Union of Illinois Chicago Council of Lawyers Cook County Bar Association Illinois Attorneys for Criminal Justice Illinois Conference of Churches, which includes the following church organizations among its members: African Methodist Episcopal Church, 4th Episcopal District African Methodist Episcopal Zion Church, Mid West Region American Baptist Churches in the U.S.A., Great Rivers Region Assyrian Church of the East Christian Church (Disciples of Christ), Region of IL/WI Church of the Brethren, District of IL/WI Episcopal Church, Diocese of Chicago Episcopal Church, Diocese of Quincy Episcopal Church, Diocese of Springfield Evangelical Lutheran Church in America, Central/Southern Illinois Synod Evangelical Lutheran Church in America, Chicago Metropolitan Synod Evangelical Lutheran Church in America, Northern Illinois Synod Greek Orthodox Church, Diocese of Chicago Presbyterian Church (U.S.A.), Synod of Lincoln Trails Presbyterian Church (U.S.A.), Blackhawk Presbytery Presbyterian Church (U.S.A.), Chicago Presbytery Presbyterian Church (U.S.A.), Great Rivers Presbytery Presbyterian Church (U.S.A.), Southeastern Illinois Presbytery Religious Society of Friends (Quakers), Western Yearly Meeting Roman Catholic Church, Archdiocese of Chicago Roman Catholic Church, Archdiocese of Belleville Roman Catholic Church, Diocese of Joliet Roman Catholic Church, Diocese of Peoria Roman Catholic Church, Diocese of Rockford Roman Catholic Church, Diocese of Springfield United Church of Christ, Illinois Conference United Church of Christ, Illinois South Conference United Methodist Church, Northern Illinois Conference United Methodist Church, Illinois Great Rivers Conference MacArthur Justice Center Puerto Rican Bar Association
INDIVIDUALS (In alphabetical order) James J. Alfini Dean and Professor of Law, Northern Illinois University Albert Alschuler Professor of Law, University of Chicago Kimball R. Anderson Partner: Winston & Strawn Nina S. Appel Dean, Loyola School of Law Fredrick H. Bates Partner: Albert Bates Whitehead & McGaugh, P.C. David J. Bradford Jenner & Block Laurel G. Bellows Partner: Bellows and Bellows Richard J. Brzeczek Partner: Richard J. Brzeczek & Associates, Ltd. Robert L. Byman Jenner & Block Perry Cobb Sentenced to death in 1983; released in 1987 Gary Gauger Sentenced to death in 1993; released in 1996 Thomas F. Geraghty Associate Dean and Director, Northwestern University Legal Clinic Bishop Frank T. Griswold Episcopal Bishop of the Chicago Diocese,Episcopal Church Harvey M. Grossman Legal Director, American Civil Liberties Union of Illinois Rev. Bonnie L. Haase-Beaupre Chicago Metropolitan Association William H. Hooks Hooks Law Offices, P.C. Rev. Kenneth O. Holderread Church of the Brethren Jesse Jackson, Jr. Congressman for the 2nd Congressional District of Illinois Gary T. Johnson Partner: Jones, Day, Reavis & Pogue; former President of the Chicago Council of Lawyers Gary V. Johnson Partner: Camic, Johnson, Wilson, & Bloom, P.C. Carl Lawson Sentenced to death in 1990; released in 1996 Chester T. Kamin Jenner & Block George N. Leighton Retired United States District Judge; adjunct professor of law, the John Marshall Law School; Of Counsel: Earl L. Neal & Associates Barry Levanstam Partner: Jenner & Block Lawrence C. Marshall Professor, Northwestern University School of Law; appellate attorney for Rolando Cruz and Gary Gauger Mary L. Mikva Partner: Abrahamson Vorachek & Mikva Jay A. Miller Executive Director, American Civil Liberties Union of Illinois Judson H. Miner Partner: Miner, Barnhill & Galland; former Corporation Counsel of the City of Chicago P. Scott Neville Partner: Howse, Howse, Neville & Gray Nan R. Nolan Attorney for Rolando Cruz Timothy P. O'Neill Professor, John Marshall Law School Rev. Kenneth Olsen Bishop, Metropolitan Synod, Evangelical Lutheran Church in America Roger Pascal Partner: Schiff Hardin & Waite R. Eugene Pincham Retired Justice of the Illinois Appellate Court Lowell E. Sachnoff Partner: Sachnoff & Weaver, Ltd. Manuel Sanchez Partner: Sanchez & Daniels Rabbi Herman Schaalman Chicago Board of Rabbis Stephen J. Schulhofer Professor of Law, University of Chicago Seymour F. Simon Partner: Rudnick & Wolfe; retired Justice of the Illinois Supreme Court Kenneth B. Smith President, Chicago Theological Seminary Jerold S. Solovy Partner: Jenner & Block Frederick J. Sperling Partner: Schiff Hardin & Waite; former President of the Chicago Lawyers' Committee for Civil Rights Under Law; former President of the Chicago Council of Lawyers Rev. Joseph Sprague Bishop, United Methodist Church Randolph N. Stone Clinical Professor of Law and Director, Mandel Legal Aid Clinic, University of Chicago Law School; former Public Defender of Cook County Mark R. Ter Molen Mayer, Brown & Platt; appellate attorney for Verneal Jimerson Scott F. Turow Partner: Sonnenschein Nath & Rosenthal; author; appellate attorney for Alejandro Hernandez Dennis Williams Sentenced to death in 1978; released in 1996
ARGUMENT
The possibility of executing an innocent person is one that alarms any person of conscience. Unfortunately, it appears that Illinois, of all the states in the nation, may be in the greatest danger of perpetrating such a miscarriage of justice. Too often, Illinois has come "uncomfortably close to executing innocent men." Editorial, "Reality check on the death penalty?" Chicago Tribune A14 (March 3, 1997). This state is the national leader in sentencing to death persons who later were freed after a determination that they should never have been convicted of the offense. The Washington, DC-based Death Penalty Information Center ("DPIC") has documented 21 cases nationwide in the past four years in which a death row inmate was freed after either a retrial and acquittal or a prosecutorial decision to drop charges as a result of new developments in the case. Death Penalty Information Center, Innocence and the Death Penalty: The Increasing Danger of Mistaken Executions (1997). Of the 21 cases, seven -- fully one third -- are from Illinois. Ibid. No other jurisdiction comes close to matching Illinois’ record for imposing the death sentence on persons who were later exonerated. No other state has more than two defendants on the DPIC list -- including Texas, which has one of the nation’s largest death rows and in recent years has led the nation in the number of executions annually. The Illinois record is a matter of grave concern. Nine persons have been freed from Illinois’ death row as a result of acquittals on retrial or prosecutorial decisions to drop further charges since the reinstatement of the death penalty here in 1977. Since 1977, eight persons sentenced to death have been executed. As matters now stand an Illinois death row inmate has a greater chance of being freed from death row because his conviction was erroneous than he has of being executed. If the comparison is made between wrongful convictions and death sentences that have been imposed but not yet carried out, the results are also alarming. Since the reinstitution of the death penalty in 1977, Illinois has imposed more than 255 death sentences. Nine of them were imposed upon men who ought not to have been convicted. This "error rate" of more than three percent in a matter of life or death is intolerable. If an auto manufacturer had a three percent rate of fatal crashes for its automobiles or if any product caused deadly accidents three percent of the time, it would not be tolerated. Illinois’ three percent rate of erroneous capital convictions is a matter of equally serious concern.
The high incidence of wrongful capital convictions in Illinois is inconsistent with the fundamental constitutional guarantee of reliability in the imposition of the death penalty, and it warrants the creation of a Special Commission to analyze the causes before further execution dates are set.
The United States Supreme Court has recognized that because death is different, both in its severity and its irrevocability, heightened standards of reliability must be met in any case where a person's life is at stake. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). See also Gardner v. Florida, 430 U.S. 349, 357-58 (1977) ("[f]rom the point of view of society, the action of the sovereign in taking the life of one of its citizens . . . differs dramatically from any other legitimate state action"); Beck v. Alabama, 447 U.S. 625, 637-38 (1980) (a capital case requires a higher degree of reliability in the guilt determination process). It is contrary to the purpose and moral foundation of any scheme of punishment to sentence the innocent. Where the sentence is death, errors cannot be redeemed. In its finality and its irrevocability, death is qualitatively different from every other form of punishment. Thus, it is particularly unacceptable for the state to take the lives of innocent persons. To do so diminishes both public respect for human life and for the death penalty. This Court should recognize, as it has implicitly in the careful review which it provides in death penalty cases, that executing innocent persons is intolerable. This Court should ensure that an impartial Special Commission address the causes for the pattern of wrongful Illinois capital convictions, and recommend measures to "guarantee, as much as humanly possible," Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring), that death sentences are not imposed against innocent persons. The setting of execution dates and the irrevocable taking of human lives surely can await the Commission's recommendations.
There are patterns in the nine Illinois wrongful capital convictions that require the Special Commission's attention, study and recommendations. Although each case is unique, there are at least three general trends that emerge upon examination of the wrongful convictions: (i) Inadequate representation Many of the erroneous Illinois capital convictions were in part the product of inadequate representation furnished to defendants without the funds to hire competent capital trial counsel. Dennis Williams’ court appointed trial counsel was defending himself in disbarment proceedings at the same time that he was handling Williams’ trial. Verneal Jimerson’s lawyer had had disciplinary problems in the past and admitted in an affidavit that his trial representation of Jimerson had been inadequate. Carl Lawson, convicted and later acquitted of the murder of an eight year old child, was represented at his first trial by a public defender who had previously been an assistant State’s Attorney and had actually represented the State at Lawson’s own arraignment. Gary Gauger’s trial lawyers failed to develop conclusive evidence demonstrating that Gauger’s "confession" was wholly inconsistent with the physical evidence at the crime scene. The adequacy of the resources provided to the defense obviously has a direct bearing on the defendant’s ability to rebut erroneous charges. For example, Carl Lawson’s original conviction was reversed in part because the defense was not given funds to hire an expert to examine forensic shoeprint evidence that had helped to convict Lawson. People v. Lawson, 163 Ill. 2d 187, 644 N.E.2d 1172 (1994). On retrial, with the funds, Lawson was acquitted. A poor defense may have contributed to other erroneous capital convictions as well. On the national level, the poor quality of representation in capital cases generally -- and the increased risk of execution of an innocent person as a result -- was one of the reasons for the American Bar Association's recent call for a moratorium on executions. See ABA House of Delegates Final Resolution of February 3, 1997. Pointing to the problem of inadequate representation in capital cases, among other things, the Chicago Tribune recently endorsed the ABA's call for a moratorium. Editorial, "Reality check on the death penalty?" Chicago Tribune A14 (March 3, 1997). A Special Commission appointed by this Court might want to consider the possibility that the establishment of a defense trial resource center with funds to hire experts and to fully investigate capital cases will reduce the chances of future erroneous capital convictions. It may also be appropriate to establish special standards of competency for lawyers who represent persons accused of capital crimes. It is clear that a competent defense is critical if false criminal charges are to be refuted at trial. (ii) Prosecutorial misconduct Questions of possible police or prosecutorial misconduct plague most of the Illinois wrongful capital convictions: The prosecution of Rolando Cruz and Alejandro Hernandez in DuPage County resulted in the indictments of seven prosecutors and sheriff’s officers on charges of perjury and official misconduct. This Court reversed the conviction of Verneal Jimerson on the ground that the prosecutors had failed to disclose the perjury of their chief witness in denying the existence of an agreement with the state not to pursue charges against her for her role in the crime. In the Joseph Burrows prosecution, one witness testified at a post conviction hearing that he had been pressured by prosecutors into providing false, inculpatory evidence against Burrows at the trial. Gary Gauger, wrongfully convicted of the murder of his parents, testified at his trial that he was interrogated by McHenry County authorities for 20 hours; deprived of sleep and food during the interrogation; and lied to by the investigators, who told him, falsely, that they could prove he had committed the crimes and that he had flunked a polygraph examination. There are pending Illinois death penalty cases in which the defendant alleges that he was tortured while in the custody of Chicago police officers, including former Chicago Police Commander Jon Burge, since discharged from the Chicago Police Department. See, e.g., People v. Orange, 168 Ill.2d 138, 659 N.E.2d 935 (1995). Some of the allegations of police and prosecutorial misconduct may be unfounded. But, because of the prevalence of the allegations and the unacceptable consequences of erroneous capital convictions, an investigation of possible police and prosecutorial abuses in these and other cases may be warranted. This Court's Special Commission might consider recommending a defense trial resource center with funds and personnel to investigate. Such a center could enable defense trial counsel to ferret out police and prosecutorial misconduct (such as the withholding of exculpatory evidence) prior to the trial. (iii) Racial bias A strikingly high number of the Illinois wrongful convictions -- six out of the total of nine -- were in cases involving a defendant of color and a victim who was white. Dennis Williams and Verneal Jimerson, both black, were wrongfully convicted of the murders of a white couple, Lawrence Lionberg and Carol Schmal, and the rape of Ms. Schmal. Rolando Cruz and Alejandro Hernandez, both of whom are Hispanic, were wrongfully convicted of the abduction, rape and murder of Jeanine Nicarico, who was white. Perry Cobb and Darby Tillis, both black, were acquitted after their fifth trial for the murders of Melvin Kanter and Charles Guccion, both white, when evidence was presented that their chief accuser, an admitted accomplice in the crime, had falsely inculpated them in order to protect herself and her boyfriend. There has long been compelling evidence that the American capital punishment process is biased and that the system inexplicably produces vastly more death sentences in interracial cases in which the victim is white than in interracial cases in which the victim is black. The system also produces a disproportionate number of death sentences in interracial black on white crimes when compared to cases where perpetrator and victim are of the same race. See D. Baldus, G. Woodworth, and C. Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990); McCleskey v. Kemp, 481 U.S. 279 (1987). Concern about discrimination in capital sentencing on the basis of either the race of the defendant or the race of the victim was another one of the factors that led the American Bar Association to issue its call for a moratorium on executions. The number of interracial cases with a white victim that are among the nine Illinois wrongful convictions is disturbingly high. Public outrage may play a role in producing this result. The crimes in the nine Illinois wrongful conviction cases -- as in virtually all capital cases -- were brutal and shocking. The murder of ten year old Jeanine Nicarico of which Rolando Cruz and Alejandro Hernandez were wrongfully convicted, for example, incited widespread public outrage and fear. The murders of Lawrence Lionberg and Carol Schmal of which Dennis Williams and Verneal Jimerson were convicted incited similar feelings in the public. Without exception, each of the nine wrongful convictions was in a case in which there was widespread pretrial publicity and public outrage. There is reason for concern that public clamor for a conviction in a murder case that is particularly grisly and horrifying may (1) produce intense pressure on the police and prosecutors to identify and charge a suspect and (2) create a pretrial climate in which selection of an unbiased jury becomes extremely difficult. See S. R. Gross, The Risks of Death: Why Erroneous Convictions Are Common In Capital Cases, 44 Buff. L. Rev. 469, 478-79, 494 (1996). Clearly, we must not shirk from examining the role that racial bias may have played in producing some of these wrongful convictions. Attention must be given to whether special procedures are called for in capital cases to ensure that the trial process is insulated as far as possible from the emotions that capital crimes engender -- particularly where racial issues are involved. Appropriate special procedures might include requiring exceptionally strenuous voir dire in capital cases, for example, or imposing stricter rules regarding closing argument in such cases to ensure that emotion does not infect the jury's deliberations. The foregoing three factors may not be the only ones worthy of the Special Commission's study. They are all certainly among the possible reasons why the Illinois capital punishment process has produced so many wrongful convictions. It is obvious that there is a need for further study and dispassionate analysis. To continue on a "business as usual" basis without examining why so many wrongful capital convictions have occurred in Illinois would not only ignore a serious risk of a wrongful execution, but would also reflect a tolerance for unreliability in capital sentencing that is inconsistent with established constitutional principles.
Appellate review of capital convictions in this Court will neither explain why so many wrongful convictions have occurred nor safeguard against the possible execution of an innocent person. Certainly, the exoneration of nine men in Illinois reflects the careful scrutiny which this Court has provided in death penalty cases. But even the most diligent scrutiny by an appellate court, standing alone, cannot adequately protect against the execution of innocent persons. By definition the appellate process is intended to identify legal errors, not to provide for de novo review of claims of innocence. Once innocent persons are erroneously sentenced to die, there are necessary limits to this Court's authority and ability to prevent their execution. It is not generally an appellate court's mandate to revisit the question of innocence, but only to ensure that there is sufficient evidence upon which the conviction may rest. See Herrera v. Collins, 506 U.S. 390, 399 (1993) ("once a defendant has been afforded a fair trial and convicted . . . the presumption of innocence disappears."). Indeed, examination of the nine Illinois wrongful convictions demonstrates that fortuitous occurrences -- quite beyond the ability of this or any other court to control -- have frequently produced the exoneration of the wrongfully convicted. In the cases of Perry Cobb and Darby Tillis, for example, the fortuity that a co-worker heard of a confession by one of the crime's perpetrators provided the evidence that resulted in the defendants' release. In the cases of Dennis Williams and Verneal Jimerson, the dogged efforts of a journalism professor and his students led to confessions by two of the true culprits and the unraveling of the prosecution's case. In the cases of Rolando Cruz and Alejandro Hernandez, the confession of Brian Dugan, the true killer, was the fortuity that led to the defendants' release. Exoneration should not be left to chance. It is imperative that appropriate measures be taken to ensure that innocent persons are not wrongfully convicted and sentenced to die in the first instance. Consistent with this Court's diligent and scrupulous efforts to prevent miscarriages of justice in capital cases, this Court should consider the further safeguards that are recommended by a blue ribbon commission.
This Court has the authority and the mandate to appoint a blue-ribbon Special Commission, consisting of prominent judges, prosecutors, defense lawyers, criminologists and others, to study the causes for the wrongful Illinois capital convictions and to suggest the steps that should be taken to ensure against the possible future execution of an innocent person. It is a matter of urgency for this Court to use that authority to address a problem that has eroded public confidence in the capital punishment process. Without this Court's leadership, matters will continue to drift. No other institution in this state can command greater respect and the attention of public agencies and officials. This Court is, therefore, in a unique position to provide a forum from which we can learn from the mistakes of the past. Unless this Court acts, public cynicism will grow as this State continues to run an unacceptable risk of executing an innocent person. This Court's appropriate role in this matter is rooted in Article 6 of the Illinois Constitution which vests with this Court "[g]eneral administrative and supervisory authority over all courts." Ill. Const. 1970, art. VI, § 16. This Court's supervisory authority has been held to be an "extraordinary" power -- one that is "unlimited, being bounded only by the exigencies which call for its exercise." McDunn v. Williams, 156 Ill. 2d 288, 301-302 (1993). Use of the supervisory power is especially appropriate where "the issues involved are of great importance." People ex rel. Carey v. Strayhorn, 61 Ill. 2d 85, 89 (1975). The crisis in the Illinois capital punishment process caused by the repeated failure of Illinois trial courts to make accurate determinations of guilt in these cases undoubtedly warrants the exercise of this Court's supervisory responsibilities. It is hard to conceive a matter of greater importance than accurate determinations of guilt in the capital punishment process. The present problem is tailor-made for the exercise of this Court's supervisory responsibilities. Where there have in the past been crises in the administration of justice, this Court has appointed a Special Commission to analyze the causes of the problem and to recommend action. For example, when the federal Operation Gambat uncovered persistent, widespread judicial corruption in Cook County, this Court appointed a Special Commission on the Administration of Justice (popularly known as the Solovy Commission) to address that crisis. The same action is warranted here. The Special Commission should be given a broad mandate to study and recommend changes to the capital punishment process. The Special Commission should examine the possible causes for Illinois wrongful capital convictions that are set out in Section II(B) of this brief (at pp. 14-21, above) and other possible causes as it sees fit. The Commission should consider and propose any changes that it deems necessary to correct this persistent problem. Among the changes the Commission may wish to consider are:
The Special Commission should be directed to perform its work with dispatch, but with due, deliberate care. This task is an imperative one if the capital punishment process in Illinois is to have legitimacy and is to be perceived as fair and impartial. We urge the Court to set this task in motion.
This Court also has the clear authority to declare a short, reasonable moratorium on the setting of execution dates until the Special Commission has completed its work and its recommendations have been analyzed. The Illinois Supreme Court Rules make clear that this Court has the final authority for setting the date for execution of death sentences. Rule 609(a) unequivocally provides: "A sentence of death shall not be carried out until final order by the Supreme Court." There is every reason for this Court to exercise its authority under Rule 609(a) to defer all execution dates until after the Special Commission's work has been completed and evaluated. Where the issue is so grave a matter as the possible execution of an innocent person, the setting of execution dates can surely be deferred for a short, reasonable period.
CONCLUSION For the foregoing reasons, the amici respectfully urge this Court (1) to appoint a Special Commission to study the problem of wrongful Illinois capital convictions and to recommend changes to the Illinois capital punishment process to ensure against the execution of an innocent person and (2) should Mr. Kliner's conviction and sentence be affirmed, to defer the setting of an execution date in this case and to declare a moratorium on the setting of execution dates in all other capital cases until the Special Commission has completed its work and its recommendations have been evaluated. Respectfully submitted, COALITION CONCERNED ABOUT THE EXECUTION OF THE INNOCENT By:____________________________ Locke E. Bowman Jean Maclean Snyder MacArthur
Justice Center (773) 753-4405 Their Attorneys
|