The New York Times

Wednesday, January 24, 2001

Illinois Supreme Court Issues Rules for Handling Capital Cases

By JO THOMAS

URBANA, Ill., Jan. 23 - The Supreme Court of Illinois has adopted new rules governing the way death penalty cases are handled. The rules, announced on Monday, set requirements for training and experience for all defense lawyers and assistant prosecutors handling the cases.

They also require regular training for judges, who must attend seminars on capital cases at least every two years, and remind prosecutors that their duty is "to seek justice, not merely to convict."

The rules come at a time of wide national interest in death penalty fairness, particularly in Illinois, where the governor put a moratorium on executions a year ago.

Today, Moses W. Harrison II, chief justice of the Supreme Court of Illinois, called the rules "just the beginning" of an effort to improve the way capital cases are handled in the state. The judges, Justice Harrison said, have no intention of interfering with the efforts of either the governor or the State Legislature to overhaul the system.

The court's rules are the result of nearly two years of study by a committee of 17 judges. The committee began work in 1999 after Anthony Porter, who came within two days of execution, was exonerated in the shooting deaths of a young Chicago couple in a 1982 robbery. Mr. Porter spent 16 years on death row before a group of Northwestern University journalism students found evidence of his innocence.

The Chicago Tribune documented the cases of 13 men, including Mr. Porter, wrongly convicted but not executed since Illinois reinstated the death penalty in 1977. Citing these cases, Gov. George Ryan declared a moratorium on executions last January and created a special panel to study the state's capital punishment system.

Dennis Culloton, a spokesman for the governor, today called the new rules "a positive step, but it doesn't change at all the comprehensive review of the system."

A major flaw often cited in the system has been the work of poorly financed, often incompetent defense lawyers who have failed to uncover and present crucial evidence. The Tribune's examination of death penalty cases in Illinois found that 33 defendants sentenced to die had been represented by lawyers who had been disbarred or suspended.

Under the new rules, which will begin to take effect in March, two lawyers will be appointed for every poor defendant in a death penalty case. To take a death penalty case, a lawyer, whether appointed or retained privately, must be certified by the State Supreme Court as a member of the Capital Litigation Trial Bar. Lead lawyers must have five years of experience in court and eight felony jury trials, including two murder trials, before taking on a death penalty case. Their co-counsels must have three years of experience and five felony jury trials.

Lawrence C. Marshall, who represented several of the men who have been exonerated in Illinois and is director of the Center on Wrongful Convictions at Northwestern University, called the setting up of a capital defense bar "a long overdue development in Illinois."

"From a larger perspective," Mr. Marshall said, "the court has clearly sent a message that it recognizes that the system was broken."

The rules also require prosecutors not only to give defense lawyers any evidence that may tend to exonerate their client - like a statement that someone else committed the crime, or a scientific test result that is not incriminating - but also to identify clearly which information may be mitigating, so it does not get lost in a mass of other evidence.

The rules also specify that prosecutors must hand over any relevant information relating to DNA evidence, including reports explaining any discrepancies in the testing, observed defects or laboratory errors, the reasons for these errors and the effect of these mistakes.

Judge Thomas R. Fitzgerald, the chairman of the court's committee, said today in an interview that "the attempt to have a clear rule concerning discovery in DNA matters was significant." He added, "The technology will continue to change and evolve, and this rule will have to be revisited from time to time."

Ira P. Robbins, professor of criminal law at the Washington College of Law at American University, said the rules in Illinois were "going in the right direction." He continued: "Until now, virtually all of the proposals for reform have been at the postconviction level. But the real problem is at the trial level. It is supposed to be the main event."

Stephen Bright, director of the Southern Center for Human Rights in Atlanta, said he thought the new rules would improve the quality of justice but would not solve the problem.

"Just a small percentage of cases have DNA evidence," Mr. Bright said. "It's not relevant in the classic case, of misidentification. A witness thinks a person did it. The person says he didn't. You can have all the discovery, all the judge's training, even capable defense, and still convict an innocent person."