The Suggestion Box
As we stated in our last issue, we want to continue sharing with you the many things that can be done to fix our criminal justice system. By March of 2000, 13 people on Illinois ' Death Row had been found to be factually innocent by DNA. Due to this, the Governor put a moratorium on executions and appointed a commission to study how the death penalty system in Illinois could be improved. This commission, named the Illinois Governor's Commission, issued a report listing eighty-five recommendations for corrections to Illinois ' death penalty system. Based on the Commission's findings, the Governor of Illinois in January of 2003 commuted the sentences of all prisoners on death row to life without parole.
Robert Sanger measured the Illinois Commission's findings against the Capital Punishment System in California and published his research in the Santa Clara Law Review. Following is some text from the Sanger article:
There is also good reason to suspect that some of the people on California 's death row are actually innocent. Approximately 111 condemned people in this country have been released from death row since the death penalty was reinstated in the 1970s. Though DNA testing has exonerated many of these people, DNA trace evidence is available in only a small percentage of the cases. Therefore, many innocent people will never have the opportunity to bring forth scientific evidence of their innocence.
To determine how such injustice occurs, the Institute for Law and Justice has analyzed twenty-eight cases in which the defendant was shown conclusively to be innocent. The studies show that most of those cases involved positive identifications or police misconduct. California has not established procedures to minimize these wrongful convictions. Significantly, many California death-row cases have not been reviewed. Of the approximately 620 people condemned in California , roughly 140 have no lawyer to represent them at all. Another 110 have an appellate lawyer but no lawyer to do the habeas corpus investigation and petition. A death row inmate must wait approximately four to six years before the California Supreme Court appoints a lawyer. Furthermore, the California Supreme Court takes approximately ten years before it considers the direct appeal and state habeas petition. Meaningful review often does not occur until the case reaches the federal court. As a result, most of the condemned people on California 's death row have not had a chance to have their innocence claims advanced or tested.
Given the experience of other states, including Illinois , it is likely that innocent people have also been condemned to death in California . Illinois courts have discovered that almost ten percent of their death row population were factually innocent. Since no one knows how many other innocent people simply had their sentences commuted or, more tragically, have been executed, ten percent is probably a conservative figure. California 's death row population is approximately 620. If California 's rate of wrongful conviction were the same as Illinois ' that would mean that over sixty innocent people have been condemned to death in California.
Far from being a leader in jurisprudence in the country, California fails miserably when measured against the standards set by the Illinois Commission. The Illinois Commission Report tracks the system of criminal justice in capital cases systematically from the inception of a case to its conclusion. The Report acknowledges numerous flaws, many of which either have resulted in the conviction of the innocent or are likely to contribute to those results. The recommendations, for the most part, neither hamper the conviction of the truly guilty nor place an undue burden on law enforcement, the courts, or the defense function. Some are simple, common sense measures. Others ultimately save resources by giving a greater assurance that things will be done right the first time.
The Illinois Commission studied twelve areas of the criminal process relating to the conduct of capital cases.
Starting with an analysis of police procedures, the Commission studied investigation, pre-trial matters, trials, and sentencing. From those areas of study came eighty-two specific recommendations. The Commission concluded with a general section in which it made three more recommendations. Overall, the Commission found that every stage of the criminal process in Illinois needed serious repair to avoid injustice, including the ultimate injustice of convicting and executing innocent people. It concluded that even meeting all of the recommendations would not eliminate the possibility of executing an innocent person.
Below are some of the recommendations from the Illinois Commission. At the writing of Sanger's article, California only met five of the recommendations. California does not meet any of the nineteen recommendations for Police and Pre-trial Investigations. Sanger writes, “If the police investigation is a search for the truth, as it should be, California should implement these recommendations.”
Recommendation 1:
After a suspect has been identified, the police should continue to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.
Recommendation 2:
(a) The police must list on schedules all existing items of relevant evidence including exculpatory evidence, and their location.
(b) Record-keeping obligations must be assigned to specific police officers or employees, who must certify their compliance in writing to the prosecutor.(c) The police must give copies of the schedules to the prosecution.
(d) The police must give the prosecutor access to all investigatory materials in their possession.
Recommendation 4:
Custodial interrogations of a suspect in a homicide case occurring at a police facility should be videotaped. Videotaping should not include merely the statement made by the suspect after interrogation, but the entire interrogation process.
Recommendation 5:
Any statements by a homicide suspect which are not recorded should be repeated to the suspect on tape, and his or her comments recorded.
Recommendation 8:
The police should electronically record interviews conducted of significant witnesses in homicide cases where it is reasonably foreseeable that their testimony may be challenged at trial.
Recommendation 16:
All police who work on homicide cases should receive periodic training in the following areas, and experts on these subjects should be retained to conduct training and prepare
manuals on these topics:
(1) The risks of false testimony by in-custody informants "jailhouse snitches".
(2) The risks of false testimony by accomplice witnesses.
(3) The dangers of tunnel vision or confirmatory bias.
(4) The risks of wrongful convictions in homicide cases.
(5) Police investigative and interrogation methods.
(6) Police investigating and reporting of exculpatory evidence.
(7) Forensic evidence.
(8) The risks of false confessions.
Recommendation 19:
The statute relating to the [state] Law Enforcement Training Standards Board should be amended to add police perjury (regardless of whether there is a criminal conviction) as a basis upon which the Board may revoke certification of a peace officer.
Recommendation 20:
An independent state forensic laboratory should be created, operated by civilian personnel, with its own budget, separate from any police agency or supervision.
Recommendation 24:
[State] Statutes should be amended to provide that in capital cases a defendant may apply to the court for an order to obtain a search of the DNA database to identify others who may be guilty of the crime.
Recommendation 34:
In light of the changes in Illinois Supreme Court rules governing the discovery process in capital cases, the Supreme Court should give consideration to ways the Court can ensure that particularized training is provided to trial judges with respect to implementation of the new rules governing capital litigation, especially with respect to the management of the discovery process.
Recommendation 35:
All judges who are trying capital cases should receive periodic training in the following areas and experts on these subjects be retained to conduct training and prepare training manuals on these topics:
(1) The risks of false testimony by in-custody informants ("jailhouse snitches");
(2) The risks of false testimony by accomplice witnesses;
(3) The dangers of tunnel vision or confirmatory bias;
(4) The risks of wrongful convictions in homicide cases;
(5) Police investigative and interrogation methods;
(6) Police investigating and reporting of exculpatory evidence;
(7) Forensic evidence; and
(8) The risks of false confessions.
Recommendation 36:
The Illinois Supreme Court and the Administrative Office of the Courts should consider development of and provide sufficient funding for state-wide materials to train judges in capital cases, and additional staff to provide research support.
Recommendation 49:
The Illinois Supreme Court should adopt a rule defining "exculpatory evidence" in order to provide guidance to counsel in making appropriate disclosures. The commission
recommends the following definition: Exculpatory information includes, but may not be limited to, all information that is material and favorable to the defendant because it tends to:
(1) Cast doubt on defendant's guilt as to any essential element in any count in the indictment or information;
(2) Cast doubt on the admissibility of evidence that the state anticipates offering in its case-in-chief that might be subject to a motion to suppress or exclude;
(3) Cast doubt on the credibility or accuracy of any evidence that the state anticipates offering in its case-in-chief; or
(4) Diminish the degree of the defendant's culpability or mitigates the defendant's potential sentence.
Recommendation 50:
Illinois law should require that any discussion with a witness or a representative of a witness concerning benefits, potential benefits or detriments conferred on a witness by any prosecutor, police official, corrections official or anyone else, should be reduced to writing, and should be disclosed to the defense in advance of trial.
Recommendation 85:
Judges should be reminded of their obligation under Canon 3 to report violations of the Rules of Professional Conduct by prosecutors and defense lawyers.
If you would like to read more you can view the entire report here: Sanger Report
ScottPetersonAppeal.Org
