1
1
2
3 SPECIAL COMMITTEE ON PROSECUTORIAL MISCONDUCT
4
5
6
7
8
9
10
11
12
13
14
15
16
SEPTEMBER 8, 2000
17
STATE OF ILLINOIS BUILDING
18
CHICAGO, ILLINOIS
19
20
21
PATKES REPORTING SERVICE
22 2820 WHITE PLAINS CT.
SPRINGFIELD, IL 62704
23 (217)787-9314
24 REPORTER: LAUREL A. PATKES, CSR #084-001340
-----------------------------------------------------------------
2
1 COMMITTEE MEMBERS:
2 REPRESENTATIVE JIM DURKIN, Chairman
REPRESENTATIVE CONNIE HOWARD
3 REPRESENTATIVE CAL SKINNER
REPRESENTATIVE TIM OSMOND
4 REPRESENTATIVE EILEEN LYONS
REPRESENTATIVE LOU JONES
5 REPRESENTATIVE KURT GRANBERG
REPRESENTATIVE PATTI BELLOCK
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
-----------------------------------------------------------------
3
1 I N D E X
2
SPEAKERS PAGE
3
DICK DEVINE 10
4 QUESTIONING BY:
CHAIRMAN DURKIN 23
5 REPRESENTATIVE OSMOND 36
REPRESENTATIVE GRANBERG 38
6 REPRESENTATIVE HOWARD 39
7 STEVE BAKER 40
QUESTIONING BY:
8 CHAIRMAN DURKIN 51
REPRESENTATIVE OSMOND 56
9 REPRESENTATIVE HOWARD 61
10 JOE BIRKETT 64
QUESTIONING BY:
11 CHAIRMAN DURKIN 91
REPRESENTATIVE SKINNER 102
12 REPRESENTATIVE HOWARD 108
REPRESENTATIVE BELLOCK 110
13
WILLIAM HOOKS 111
14
TERRY EKL 122
15 QUESTIONING BY:
REPRESENTATIVE OSMOND 146
16 CHAIRMAN DURKIN 154
17 TIMOTHY O'NEILL 157
18
19
20
21
22
23
24
-----------------------------------------------------------------
4
1 (Pages 1 through 61 are the tape
2 recorded portion of the proceedings.)
3 CHAIRMAN DURKIN: (The tape did not
4 pick up the very beginning comments) -- in
5 Springfield, so there's one person who does all of
6 the transcribing for these committee hearings, and I
7 think we have a tape, and we're going to work with
8 that, and we're going to do the best we can to have
9 that transcribed and get it to everybody at a later
10 point.
11 But it's 10:30. We have a lot of
12 testimony today so I think we'll start with it.
13 We don't have a clerk, but I will
14 state for the record present are Representative
15 Bellock as opposed to Representative Winkel,
16 Representative Granberg. I'm Representative Durkin.
17 Representative Eileen Lyons is subbing for
18 Representative Turner, Representative Tim Osmond,
19 Representative Connie Howard.
20 There may be some members coming in
21 late, but I think we're going to start with
22 testimony.
23 I've been chairing this committee.
24 We've been doing this for about two years, but this
-----------------------------------------------------------------
5
1 is the committee on prosecutorial misconduct.
2 This committee came into formation in
3 early 1999 and resulted from concerns that Speaker
4 Michael Madigan has and continues to have with the
5 administration of justice in Illinois.
6 Since 1999, this committee has held a
7 number of hearings in Chicago and Springfield to
8 determine if there are problems in the criminal
9 justice system, and if so, how can they be
10 corrected.
11 The committee to this day has publicly
12 heard from all players about the criminal justice
13 system; prosecutors, ex-prosecutors, public
14 defenders, private criminal defense attorneys, a
15 retired member of the Supreme Court, law school
16 professors and the ARDC.
17 From this testimony, proposals were
18 drafted which we're going to discuss today.
19 Presently in Illinois there is a
20 public recognition of problems within our criminal
21 justice system, and whether you agree with it or
22 not, our governor and the appellate courts, the
23 supreme courts have recognized the same.
24 As policymakers, our job is to find
-----------------------------------------------------------------
6
1 solutions and to do everything in our power to
2 improve the criminal justice system.
3 These proposals which we're going to
4 discuss are general and were drafted as such so that
5 all parties could hopefully discuss, negotiate and
6 find a mutual resolution to an extremely important
7 issue.
8 We are looking for solutions, and
9 that's what this committee is all about.
10 The three proposals that we are going
11 to discuss today deal with use of jailhouse
12 informants, a discussion about discovery
13 depositions, and also a proposal about the
14 advocation of the rules of Brady v. Maryland.
15 Basically, I just wanted to just tell
16 everybody, I thought about these long and hard over
17 the past six months starting with the deposition. I
18 assume that the positives that we're going to see,
19 that we'll hear about are that it saves judicial
20 resources. It promotes the discovery of truth. It
21 promotes the discovery of facts. It also preserves
22 testimony and helps identify witnesses and
23 encourages pretrial disposition of cases. A
24 criminal defendant will better understand the
-----------------------------------------------------------------
7
1 evidence against him and have a clarification of the
2 issues.
3 The negatives, which I've already
4 thought about, will it be burdensome in large
5 counties? We'll be concerned about harassment of
6 witnesses. Will there be clogs in the system. It's
7 expensive. It can cause delay.
8 There are Sixth Amendment issues
9 involved; ineffective assistance of counsel if he
10 chooses not to proceed with discovery deposition,
11 and also there are concerns about the Speedy Trial
12 Act.
13 With respect to the jailhouse
14 informant proposal which we put forward, I think the
15 pros that we're going to hear about today are that
16 it permits the trial judge to exercise his or her
17 inherent gatekeeping responsibility to exclude
18 unreliable testimony.
19 It also permits the defendant to
20 fairly test informant's credibility with all
21 pertinent information prior to the trial.
22 It avoids, what people have stated in
23 the committee, it avoids ambush tactics, and it
24 permits the jury to have all the facts to assess a
-----------------------------------------------------------------
8
1 witness's interest, bias and motive in providing
2 testimony.
3 The cons are, once again, it's going
4 to take time, and it's going to be burdensome.
5 People say the defense attorney already has the
6 ability to do this type of discovery. Additional
7 delay will clog the overloaded system, and it will
8 discourage informants from coming forward in the
9 future.
10 Also, I believe that there will be
11 testimony saying that there is a proper screening
12 process already in place, and the weight of the
13 testimony should be decided by the jury.
14 Lastly, what the Brady proposal
15 anticipated, and I've thought about these, and once
16 again, the pros I believe are that it will help
17 ensure that all evidence is disclosed to the
18 defendant. It will promote fact-finding. It
19 provides a fair remedy for nondisclosure of
20 pertinent evidence, and it promotes an open file
21 policy.
22 The cons are, once again, it's
23 unnecessary and will require prosecutors to be
24 responsible for others who are not necessarily under
-----------------------------------------------------------------
9
1 the control of the prosecutors.
2 I was a state's attorney prior to
3 coming to the General Assembly. I have supported
4 the state's attorneys and their issues for a number
5 of years. My record is very clear on that. I also
6 support the death penalty. I don't believe that
7 Willie Enoch or Henry Brisbon should get the benefit
8 of moratorium. I think justice should be served in
9 those cases.
10 However, I think we need to take a
11 look at the problems and things that have come back
12 to the appellate court and the Supreme Court over
13 the past few years and see how we can go from A to
14 B.
15 I expect the testimony today to be
16 very lively. I think it's going to be informational
17 for members of the committee.
18 We are not taking a vote today. This
19 is a subject matter hearing in which we elicit
20 testimony in order to continue with this process.
21 I'm looking at about 15 minutes per
22 speaker, 15, 20 minutes, and perhaps five, ten
23 minutes of question and answer.
24 First I'd like to have the state's
-----------------------------------------------------------------
10
1 attorney of Cook County, Dick Devine, if you could
2 step up and address the committee.
3 MR. DEVINE: Good morning,
4 Mr. Chairman and members of the committee. Thank
5 you for inviting me to visit with you again and to
6 offer views of people in our office on your draft
7 proposals.
8 Before I do that as we get caught up
9 in the back and forth of these discussions and
10 sometimes forget the basics, I certainly want to
11 thank every member of the committee for the time and
12 effort that you have taken.
13 Certainly people from our office feel
14 we've had the opportunity to make our submissions,
15 but in addition to my presentation today, I would
16 hope after we hear from everybody that we can submit
17 to you any written materials that we think are
18 appropriate to cover the issues that come up because
19 I'm sure I won't anticipate all of them, but thank
20 you for your efforts.
21 I would also like to make one or two
22 general observations before getting into the
23 proposals.
24 I served as first assistant state's
-----------------------------------------------------------------
11
1 attorney from 1980 to 1983 in Cook County, and I've
2 been privileged to serve as the state's attorney
3 since December of 1996, but most of my professional
4 life has been spent in the private practice of law
5 and some other governmental responsibilities.
6 Through that experience of over 30
7 years, I can say without hesitation that I know of
8 no group that is more devoted to integrity and
9 professionalism than the prosecutors in the Cook
10 County State's Attorney's office.
11 There is, of course, no large group of
12 human beings that does not have some individuals who
13 fail to make the grade. That is true of the
14 legislature and the media and, of course,
15 prosecutors as well.
16 On the whole, however, assistant
17 state's attorneys are devoted to seeing that justice
18 is done in the cases that they handle, and they do
19 so in large part because they, more than just about
20 anyone, can see the physical and emotional pain that
21 is suffered by the victims of violent crime and
22 their families and their neighbors.
23 So it is sometimes difficult for those
24 of us who are prosecutors to hear of issues
-----------------------------------------------------------------
12
1 discussed in the context of so-called prosecutorial
2 misconduct. This is a much misunderstood term
3 often used by our courts when referring to
4 unintentional and inadvertent mistakes while the
5 public thinks logically of deliberate misdeeds.
6 I want to state very clearly that
7 there is no room in our office, and I believe I
8 speak for every prosecutor, for anyone who would
9 intentionally undermine the rights of a defendant to
10 a fair trial.
11 But beyond that, we must, as
12 prosecutors, considering the responsibility and
13 authority that we have, delve into any thoughtful
14 discussion of proposals regarding any important
15 aspect of the criminal justice system.
16 This committee has developed three
17 sets of proposals.
18 One deals with violations in the
19 discovery process commonly called Brady violations;
20 the second deals with informants, and the third
21 would mandate pretrial depositions of certain
22 prosecution witnesses.
23 I have observations about each of the
24 proposals.
-----------------------------------------------------------------
13
1 First with regard to discovery in
2 criminal cases, the initial part of the proposed
3 legislation would require a new trial when the
4 prosecution intentionally withholds evidence that
5 could have helped the defense.
6 The second part provides that if the
7 evidence is withheld unintentionally, the
8 prosecution would have to prove beyond a reasonable
9 doubt that the verdict would have been the same had
10 the evidence been disclosed.
11 As this committee well knows, the 1963
12 Brady decision requires prosecutors to disclose to
13 defense attorneys all evidence favorable to the
14 accused that is material to guilt or punishment.
15 Over 37 years, Brady, like Miranda,
16 has become an accepted and well understood part to
17 the criminal justice process. Its basic
18 requirements have been laid out in the rules of the
19 Illinois Supreme Court.
20 Let me be clear, Mr. Chairman, members
21 of the committee, that any prosecutor who
22 intentionally withholds evidence that could have
23 helped a defendant has no business being a
24 prosecutor. I would terminate that prosecutor
-----------------------------------------------------------------
14
1 immediately, and I'm confident that charges would no
2 doubt soon follow with the Attorney Registration and
3 Disciplinary Commission.
4 I have never had to do any of this
5 because I have never seen such a case. Our
6 prosecutors routinely turn over evidence to defense
7 attorneys pursuant to our open file policy.
8 With regard to unintentional
9 violations which would, under the proposal, bring
10 about a hearing, the requirement that the
11 prosecution establish beyond a reasonable doubt that
12 the outcome of a case would have been identical had
13 the evidence been disclosed is a virtual
14 impossibility. It basically requires prosecutors to
15 prove the negative.
16 Essentially, we have a situation with
17 Brady right now where, A) I do not know of any
18 intentional action that's been taken by a
19 prosecutor. It clearly can be handled and would be
20 handled very severely by any of us who are in charge
21 of those prosecutors and I am confident would be
22 handled severely by the public courts and the
23 Attorney Registration and Disciplinary Commission.
24 Beyond that, for any kind of violation
-----------------------------------------------------------------
15
1 under Brady, we have a long body of case law that
2 defines how Brady should operate that gives the
3 appellate courts and the Supreme Court guidance on
4 how to deal with that.
5 We are concerned that replacing the
6 current system of appeal and review that has been
7 developed over a number of years with this
8 legislation would, in effect, turn Brady on its
9 head, and this would not increase justice in our
10 view but diminish it.
11 Beyond this analysis of the proposal
12 itself however, there is a fundamental separation of
13 powers issue that this committee should consider.
14 At present, Illinois Supreme Court
15 rules govern the conduct of all attorneys,
16 prosecutors as well as defense counsel, regarding
17 discovery in criminal cases.
18 Included within these rules are a
19 range of penalties that a trial court can impose in
20 the event that an attorney inadvertently or
21 intentionally has failed to comply with any of the
22 discovery rules or an order of the court.
23 Any legislation which mandates how the
24 discovery process in criminal cases should operate
-----------------------------------------------------------------
16
1 would almost inevitably conflict with the Illinois
2 Supreme Court rules.
3 Such a conflict, in our view, would
4 almost assuredly result in the legislation being
5 found unconstitutional.
6 The second legislative proposal deals
7 with informants and whether there should be a
8 pretrial hearing to determine their credibility.
9 We agree with your concerns about
10 informants, especially those known as jailhouse
11 snitches. These often are not the kind of people
12 who aspire great confidence in anyone.
13 However, prison residents are not the
14 only kind of informants. People who have some role
15 in a crime or some proximity to criminals may also
16 choose to cooperate with law enforcement authorities
17 by testifying against defendants.
18 Informants are a fact of life in a
19 criminal justice system. Whatever their motives,
20 they provide information that helps solve crimes or
21 prove criminal charges in court, sometimes at risk
22 to themselves. We have only to think of major
23 investigations such as Greylord, several of the
24 investigations of organized crime where informants
-----------------------------------------------------------------
17
1 have been vital to prosecutions.
2 Our office is cautious in using
3 informants, and we do not often do it.
4 When we do, we review their offerings
5 with great skepticism and scrutiny. We examine the
6 statements for internal consistency and determine if
7 there is corroboration in the physical evidence or
8 in the testimony of others.
9 The credibility of any witness can be
10 decided only by the trier of fact, a judge or a
11 jury, during the course of a trial.
12 The proposed legislation deprives all
13 parties of that right. It also raises questions
14 about the impact of the pretrial hearing decision on
15 the trial itself.
16 We suggest an alternative to this
17 committee for your consideration, and that would be
18 a recommendation to the Illinois Supreme Court
19 committee on pattern and jury instructions.
20 That recommendation would be that the
21 committee devise an instruction to permit Illinois
22 judges to do what judges in federal courts now
23 do: advise the jury that it is about to hear from a
24 informant and that this witness's testimony should
-----------------------------------------------------------------
18
1 be considered with caution and skepticism.
2 As a result, it would be up to the
3 jury or the judge, whoever is the trier of fact, to
4 determine the worth of the informant's testimony
5 just as it must make that determination for each
6 witness who testifies.
7 This system works well in federal
8 courts, and it certainly can work in state courts,
9 and I know that there are probably prosecutors who
10 would oppose this, but we think this recommendation
11 on a jury instruction is a reasonable step forward
12 to address the concerns that people reasonably have
13 about informant testimony.
14 Your third proposal would establish
15 pretrial depositions of some prosecution witnesses
16 in criminal trials, a practice currently used only
17 when it is determined that the witness will not be
18 available to testify in court.
19 The chairman has commented on the cost
20 and manpower requirements to meet this law. We
21 estimate a possible 60,000 depositions would be
22 taken in Cook County alone, and since the
23 depositions would almost always be taken during the
24 day when court is regularly in session, many, many
-----------------------------------------------------------------
19
1 more assistant state's attorneys would be required
2 to take them. We assume similar pressures would
3 affect the affect public defenders offices as well.
4 It appears that many defense attorneys
5 who are in practice for themselves and are already
6 strained to meet the demands of appearing in
7 courtrooms around the county would have difficulty
8 availing themselves of this option, and that, in
9 turn, as the chairman noted, raises questions in
10 itself.
11 A serious concern is that pretrial
12 depositions would cause the wheels of justice to
13 grind even more slowly in criminal cases and thereby
14 prejudice defendants' rights to a speedy trials as
15 required by law. The four- and five-year time frame
16 familiar in civil cases would become more
17 commonplace in criminal cases, and that is not
18 acceptable to any of us.
19 Additionally, we are concerned that
20 this legislation may make witnesses more subject to
21 intimidation and punishment. Currently, a defense
22 attorney may interview any witness before trial but
23 only if that witness agrees to speak to the
24 attorney.
-----------------------------------------------------------------
20
1 The proposed legislation would wipe
2 out the right of a witness and make the witness's
3 pretrial cooperation mandatory.
4 A witness who refused to talk before
5 the trial could face contempt of court charges for
6 his or her non-cooperation.
7 We are not quite sure what the result
8 of that might be; jailing, a fine, whatever might
9 arise in the particular circumstances. Perhaps it
10 would lead to that witness not being able to testify
11 at trial.
12 Quite clearly though, the
13 truth-seeking process and function of a trial would
14 be thwarted by this approach.
15 This also goes far beyond the
16 protections of the Sixth Amendment to the United
17 States Constitution which gives the defendants the
18 right to confront witnesses against them in all
19 criminal prosecutions but does not establish its
20 years and years of conduct and practice in our
21 courts that have demonstrated the right to have a
22 deposition beforehand.
23 We suggest that if pretrial
24 depositions are to be implemented in Illinois that
-----------------------------------------------------------------
21
1 they be done in capital cases. The Special Supreme
2 Court Committee on capital cases chaired by Judge
3 Thomas Fitzgerald has recommended the limited use of
4 pretrial depositions in death penalty cases.
5 This proposal gives either party,
6 prosecution or defense, the ability to depose a
7 witness only where the information available for
8 pretrial review through the discovery process is
9 necessary to fully prepare for the testimony of that
10 witness at trial.
11 When such good cause is shown to
12 justify the use of a deposition, the witness at
13 issue will be required to submit to pretrial
14 questioning.
15 We urge this committee to join the
16 Supreme Court committee's narrowly tailored approach
17 to depositions by submitting a recommendation
18 seeking an amendment to the current Illinois Supreme
19 Court rules which govern discovery.
20 We believe that this approach has a
21 number of merits.
22 One, it serves as an initial use of
23 the process on a limited basis so that we can all
24 determine how the process works.
-----------------------------------------------------------------
22
1 The resources would be there to
2 conduct the appropriate depositions because as you
3 well know, there is now a capital litigation fund
4 that could support the taking of those depositions,
5 and you would not have defense attorneys especially
6 wondering if they would have the resources to
7 participate in such depositions.
8 In addition, capital cases are clearly
9 the most important, and there are issues now about
10 experts and other aspects of it that could be
11 clarified and focused on prior to any trial.
12 Finally, Mr. Chairman, committee
13 members, I'm grateful for your invitation to appear
14 and for your attention to my testimony which is
15 meant to contribute to our thoughts to improving the
16 criminal justice process, but the day is long and I
17 do not want to go beyond my time.
18 As I said before, we will certainly be
19 prepared to submit to this committee additional
20 written materials that cover some of the issues that
21 might come up today.
22 CHAIRMAN DURKIN: Thank you
23 Mr. Devine.
24 This is a little aside. I'm curious
-----------------------------------------------------------------
23
1 when we see people that have made it here for the
2 past year and a half. I think we've had some
3 hearings which there's been no attendance, and this
4 looks like almost a White Sox game when they're
5 losing actually. Though it's good to see people
6 here and people taking interest in this committee.
7
8 QUESTIONING OF DICK DEVINE
9 BY CHAIRMAN DURKIN:
10 Q. Mr. Devine, to go over some of your
11 thoughts, first of all on the Brady proposal, what
12 we first have basically I think is a complication of
13 what potential violation or what is the harm of
14 having that codified in the law. It could present a
15 problem.
16 Like I said, one of the things that is
17 hope for this committee is that this encourages an
18 open file policy throughout the state. While you
19 have that open file policy in Cook County, can we
20 rely upon the rest of the state's attorneys in
21 Illinois to follow that same policy and that
22 codifying? And how does that put the prosecution in
23 terms of --
24 A. Well, you know, it is easy to say when
-----------------------------------------------------------------
24
1 someone says there isn't a problem, well, why not
2 have a rule on it since you don't have a problem
3 with it in the first place.
4 But the reality of it is that
5 prosecutors, like anybody else, function under
6 certain conditions, and I think truly they would see
7 this as a rule that indicates there is a problem.
8 That's usually what happens, and let me point to --
9 Q. You think it's not a problem with
10 Brady violations?
11 A. Not an intentional one, but, you know,
12 again, the action would presuppose a problem, and I
13 can guarantee you that there will be people, despite
14 your best efforts, that will recognize there isn't
15 really a problem but when we're getting a little
16 more teeth into it, there will be some who say this
17 shows there's a problem.
18 Well, let me just refer to the recent
19 Illinois Supreme Court rules on what prosecutors can
20 say. Over the course of the time that I've been
21 involved in the criminal justice system, I don't
22 know of any case where that's ever been an issue,
23 and now we have issues that are created because we
24 have these new rules, and we're not quite sure what
-----------------------------------------------------------------
25
1 they mean. There are inconsistencies.
2 So my basic point is, number one, I am
3 not saying there should not be any mechanism to deal
4 with an intentional act by a prosecutor. I am
5 saying (A) I have not seen a problem with that on
6 the part of prosecutors, and (B) there are plenty of
7 mechanisms to deal with that in the system right
8 now.
9 There is no prosecutor that wants to
10 go up, there's no attorney that wants to go up
11 before the ARDC, go up before a judge, go up before
12 anybody who is questioning his or her ethical
13 conduct. We feel very strongly that we live by not
14 only the letter of the law but the spirit of the law
15 as well.
16 Q. If the nondisclosure was a negligent
17 act, not an intentional act, why should the burden
18 be on the defense to show that the material would
19 have changed the outcome of the trial? I think that
20 is presently the law now.
21 A. Well, it allows (A) for focus because
22 you had a trial that has many parts to it. It
23 allows for focus on the issue that the defense
24 thinks has resulted from the failure inadvertently
-----------------------------------------------------------------
26
1 to disclose whatever the document might have been or
2 whatever the piece of material might have been.
3 It allows for the court then to make a
4 reasoned decision as to whether that had an impact
5 on the overall trial.
6 This is a standard part of review of
7 cases, and I would submit that having looked at a
8 number of the cases where the courts think it's even
9 a close call, they provide for a new trial. But we
10 have the same rule with regard to closing argument,
11 with regard to a number of other things. All
12 right. There may have been an error in this process
13 that as many of you know lasts for a long period of
14 time, involves many different aspects to it.
15 If there is an error, the second
16 question is has that been of a nature that it has
17 affected the outcome in a substantial way.
18 I think that's the logical way to go
19 about it. Not only do I think that, the courts have
20 treated it that way. We have 37 years of
21 interpretation of Brady that the courts have done,
22 so we're not dealing in waters that are uncharted
23 here for the most part, and I think those rules and
24 that history provides us a guidance as to how we
-----------------------------------------------------------------
27
1 should go about this.
2 One of the things that the chairman
3 talked about was the criminal justice system and how
4 it functions appropriately, and this provides a
5 mechanism now for it functioning appropriately.
6 I was an individual when the Miranda
7 issue was before the U.S. Supreme Court, I said I
8 support Miranda. I think we should keep Miranda
9 because I think Miranda provides a clear-cut set of
10 guidelines for police officials as to what they
11 should do prior to questioning a suspect in certain
12 circumstances.
13 I think Brady does the same thing.
14 Q. Well, I think the legislature has a
15 long history of us looking at precedent over the
16 past 37 years of changing it with court reform as
17 well, so we saw what happened to that, but we
18 codified things.
19 And on the other basis, we also will,
20 based on recommendations that come from all
21 respective offices throughout the state of
22 prosecutors, we will go in and just last year I did
23 a bill for you. I'm just saying we've had some
24 questions raised that this is a problem.
-----------------------------------------------------------------
28
1 I said, well, I think there might be a
2 problem in the future. I think the way that this is
3 working, this is not probably the best way to do it.
4 So we do have a history in which we do
5 take on issues which some people think, no, it's not
6 necessary, but that's for the legislature to decide.
7 Just a few more questions.
8 With the jailhouse snitch informants
9 proposal, nobody likes to use them. I know when I
10 was in office, that's not the sign of a great case
11 when you've got to be able to put one of them on.
12 But if the state cannot meet at least
13 some type of threshold reliability as we do in
14 certain types of hearsay exceptions which we now
15 have, why should they even be brought before the
16 jury? Why should we have to consider it because I
17 would say that a person on the stand, no matter what
18 their criminal history is or what their background
19 is, when the state is saying that I heard this
20 defendant give an admission to this crime, I think
21 that is a very, very strong statement. It's a very
22 powerful statement for the prosecution.
23 In those situations, would you agree
24 or disagree that maybe we should let the court make
-----------------------------------------------------------------
29
1 that decision where there is not an issue of
2 reliability because he's wearing a wire and the
3 admission has been captured? I personally think
4 perhaps maybe the appellate courts and the higher
5 courts would look on that favorably because the
6 trial court made a factual finding.
7 When there is an appealable issue
8 regarding the informant's reliability, wouldn't the
9 appellate courts generally defer to the trial
10 court's finding?
11 A. Well, first of all, I know this
12 doesn't directly address the problem, but we do look
13 with cynicism on informant testimony, and we do not
14 just automatically throw it in the hopper and say,
15 okay, let's see what a jury or a judge thinks about
16 it. We look for corroboration. We look for
17 internal consistency.
18 And I understand, you know, that's
19 fine, but still, there's an issue there.
20 I think the appropriate way to handle
21 this issue is if there is a problem, add the
22 instruction that we propose.
23 We are not saying that this isn't
24 something of concern, but when you get into a
-----------------------------------------------------------------
30
1 pretrial hearing, and essentially what we're talking
2 about here is credibility. We're talking about the
3 credibility of a witness who appears to have some
4 information regarding an event or regarding an
5 individual, and that has historically, in our
6 country, been decided by the trier of fact, either
7 the judge or the jury.
8 This could remove that individual from
9 that process. It also can raise questions about
10 what is the impact on the trial if there is a
11 hearing and the court says this is a credible
12 person. Is that something that should be passed on
13 in the trial to the trier of fact, that there has
14 already been a finding that this person is a
15 credible witness?
16 We don't do that in other cases, and
17 we think that to set up this process is frankly
18 going to probably cause more mischief than
19 accomplish good and that we can accomplish what the
20 committee rightly sees as an issue by having a
21 clear-cut instruction that every time an informant,
22 whether a jailhouse informant or other informant,
23 testifies, it's read by the judge to the jury.
24 We now do that with accomplices, and
-----------------------------------------------------------------
31
1 we think that it could very easily be expanded to
2 have it cover any kind of informant.
3 Q. Mr. Devine, I'm not sure if you have
4 this record, but how many times has the prosecution
5 used that type of witness over the past year and a
6 half?
7 A. No, I don't have specific figures. I
8 can tell you it is very rare. It is something that
9 we try to avoid. If we can put on a case without
10 informant testimony, we do so.
11 But again, let me recall for the
12 committee that there are many cases such as Greylord
13 on the federal side that were made primarily of
14 because of informant testimony, and most of us have
15 seen that as a service to the community.
16 But we rarely do it, and when we do
17 it, we look for strong corroboration.
18 Q. Discovery deposition, when that was
19 created, I think that I recognize that, you know, we
20 wanted to keep that general, and I don't think every
21 case needs to have depositions, but the area which I
22 think everyone said are the murder cases and capital
23 cases especially.
24 Right now, and I think maybe we talked
-----------------------------------------------------------------
32
1 about this before, but there's a few states that
2 presently have depositions; Florida which is wide
3 open for all felonies and Indiana as well. Their
4 experience mostly has been fairly positive.
5 I think we had the deputy state's
6 attorney from Lake County, Indiana testify before
7 this committee. His reaction, he said he was around
8 when Miranda came around, and his reaction was
9 you'll never get a confession. It will never
10 happen.
11 He felt the same way concerning
12 discovery depositions in Indiana, Lake County,
13 Indiana. It's not Cook County, but it still has a
14 significant crime problem among the minorities.
15 His testimony, and I'd be happy to
16 attach it here, stated that generally it's been able
17 to make cases better in the future. It's promoted
18 more pleas which I think is ultimately what occurs.
19 Again, our judicial system is about negotiated
20 settlement cases prior to trial.
21 Florida had some problems, but the
22 problem was that they'd use it in DUI cases and it
23 just clogged the system.
24 If we were to limit this, you said you
-----------------------------------------------------------------
33
1 would be able to agree that you would probably
2 support it if it was limited to certain types of
3 cases perhaps? Or are you talking about capital
4 cases?
5 A. Capital cases. I believe it would be
6 an appropriate addition for certain aspects of the
7 capital cases, expert testimony, things of that
8 nature, and I think that also serves the purpose as
9 we have done with videotaping of statements in
10 murder cases.
11 It allows everybody in the system to
12 get started on a basis that is manageable. We can
13 see what is needed. We can watch how it works, and
14 then we can always come back to the issue and say,
15 hey, it works pretty well. Let's expand it.
16 Q. The issue about the time, it's going
17 to take a lot of time in Cook County if we were to
18 limit it to murder cases. How many murder cases
19 would you say that you have charged this year and
20 the last year?
21 A. Capital cases, not...
22 Q. Well, murder, capital cases and
23 murder.
24 A. I did look at '98, '99, and the first
-----------------------------------------------------------------
34
1 part of 2000. We had in '98 1,048 cases; 300
2 potential capital cases that fit the categories.
3 They weren't all charged as capital cases.
4 Q. What was the year on that?
5 A. '98.
6 Q. Murder cases that were charged?
7 A. Yes, right.
8 1999, 747; 250 potential capital.
9 The first half of 2000, 349 cases; 125
10 that are potential capital cases. So it's
11 manageable.
12 CHAIRMAN DURKIN: All right. I mean,
13 these are areas which we can discuss. I think it
14 needs to find some middle ground, but I think that
15 the issue of discovery depositions in the long run
16 is a worthwhile thing. Florida, like I said, has
17 been using it for the past 25 years, and they
18 presently have some -- they executed six people this
19 past year. They've got some 300 people on death
20 row. So I think it's slowed the wheels of justice
21 in Florida which is not by any means a very liberal
22 state as well.
23 I'm going to open it up for some
24 questions. I've probably taken too much time asking
-----------------------------------------------------------------
35
1 questions.
2 MR. DEVINE: If I could just comment
3 on your last statement, Mr. Chairman.
4 CHAIRMAN DURKIN: Yes.
5 MR. DEVINE: All I would say is when
6 you're looking at other jurisdictions, and you've
7 probably done this, but take a close look at how the
8 system actually operates.
9 When we were discussing videotaping of
10 statements, there were references to states that
11 supposedly did X, Y and Z, and when you looked at
12 those states, they weren't quite doing it the way
13 that the general statements were going.
14 CHAIRMAN DURKIN: Texas is the one
15 state as far as the videotaping, they've had a
16 different issue on the eavesdropping statute, but we
17 know that Texas hasn't exactly slowed the wheels of
18 justice down there either.
19 Other members of the committee have
20 any questions?
21 Representative Tim Osmond first.
22 REPRESENTATIVE OSMOND: Thank you.
23
24
-----------------------------------------------------------------
36
1 QUESTIONING OF DICK DEVINE
2 BY REPRESENTATIVE OSMOND:
3 Q. You've been before our committee
4 before. I'd just like to give you an opportunity to
5 comment on the justice system itself and whether or
6 not you think there are some problems that perhaps
7 we haven't discussed, and if you think there are
8 some, would you care to share those with us at this
9 time?
10 A. Well, I think we've all been talking
11 about a lot of issues over the course of the last
12 two years. We certainly saw some issues on the
13 death penalty process back in February of 1999 in
14 when the Anthony Porter case surfaced.
15 We've taken a number of steps in our
16 office, as have other prosecutors, to deal with
17 those issues. There are certainly points that have
18 come up regarding a capital trial bar that I
19 support.
20 There are issues about the use of
21 DNA. Just about everybody on the prosecution side
22 supports full use of DNA and appropriate funding for
23 the crime lab so that we can have, especially in
24 capital cases, early testing of all DNA materials.
-----------------------------------------------------------------
37
1 There are ethical issues and training
2 issues that we feel very strongly about and have
3 from the start. It does not take anybody else to
4 tell us that it's not only important to have a
5 prosecutor who's intelligent and knows the rules of
6 evidence, it's equally important or more vital to
7 have a prosecutor who has integrity and is looking
8 to see that justice is done rather than secure a
9 victory or put another notch on the belt, and we
10 have training that starts from day one with our
11 prosecutors to stress that to them.
12 I think all of us, defense lawyers,
13 prosecutors, trial judges, legislators, we all have
14 a piece of this, and the important thing I think is
15 to keep our eye on what really will improve the
16 criminal justice system across-the-board.
17 REPRESENTATIVE OSMOND: Thank you.
18 CHAIRMAN DURKIN: Mr. Granberg.
19 REPRESENTATIVE GRANBERG: Dave, one
20 quick question.
21 First of all, I want to commend you
22 and Jim for working together and attempting to reach
23 consensus on these issues. I know it's difficult,
24 but you've done an excellent job.
-----------------------------------------------------------------
38
1 I just have one quick question.
2
3 QUESTIONING OF DICK DEVINE
4 BY REPRESENTATIVE GRANBERG:
5 Q. With regard to jailhouse informants'
6 testimony, your suggestion was to pattern jury
7 instructions after the federal, and I believe you
8 said it would permit a judge to advise the jury as
9 to informants.
10 A. Well, he would in each case. It would
11 not be --
12 Q. Okay. It would not be within the
13 judge's discretion?
14 A. Right.
15 Q. He would be mandated to do that?
16 A. Right.
17 CHAIRMAN DURKIN: One of the things
18 that we've prepared in the forum is a resolution
19 which we may take up which I think the Supreme Court
20 is going to act on anyway, but the cautionary
21 instruction would be the same as well.
22 Representative Howard, do you have a
23 question?
24 REPRESENTATIVE HOWARD: Just a
-----------------------------------------------------------------
39
1 question to be clear.
2
3 QUESTIONING OF DICK DEVINE
4 BY REPRESENTATIVE HOWARD:
5 Q. Did I understand that you think that a
6 jailhouse person's testimony is equivalent to any
7 other witness's testimony?
8 A. No. I think that as we do in our
9 office, Representative, if you have someone who is
10 in jail that comes forward and says, I heard X, Y
11 and Z, you approach that person and that statement
12 with great skepticism and cynicism, and you look (A)
13 for internal consistency in the statement, and (B)
14 for corroboration of the statement before you use
15 it.
16 I think you would have to use such
17 testimony with great caution, much more so than any
18 other testimony.
19 Q. Because that person is attempting to
20 get some kind of perhaps freedom for themselves or
21 lesser sentence for themselves?
22 A. They have. It may not be true in
23 every case, but there certainly is, within our sense
24 of how human nature is, an incentive for such a
-----------------------------------------------------------------
40
1 person to come forward and say something that would
2 benefit them.
3 So we do have to look at them with
4 great cynicism. I agree.
5 REPRESENTATIVE HOWARD: Thank you.
6 CHAIRMAN DURKIN: Thank you very much,
7 Mr. Devine.
8 MR. DEVINE: Thank you.
9 CHAIRMAN DEVINE: And we'll add
10 Representative Skinner and also Representative Jones
11 to the roll.
12 Right now we'll hear from Steve Baker,
13 public defender of Du Page County.
14 MR. BAKER: Thank you, Mr. Chair and
15 members of the committee. I appreciate the
16 opportunity to address you.
17 I'm currently chief public defender in
18 Du Page County, and prior to being a public
19 defender, I was a prosecutor for a number of years
20 downstate.
21 Mr. Devine's comments I'll address
22 specifically but one thing that prosecutors that
23 I've talked to have concerns about from this
24 committee frankly is the name of it. It presupposes
-----------------------------------------------------------------
41
1 intentional acts as opposed to negligent acts or
2 police not turning over all the evidence to the
3 prosecutors which is much more common than the one
4 in a million case where the prosecutor hides the
5 ball; whether they didn't turn over a screening file
6 to their supervisors or whatnot.
7 In any event, if I could make some
8 comments in general about attitudes of public
9 defenders that I've talked with statewide.
10 Marginal cases drive a public defender
11 nuts. If I would have done something different, he
12 would have been acquitted; marginal cases where
13 there is not overwhelming evidence.
14 Most of the cases that I've seen in
15 Du Page County, the evidence is overwhelming:
16 confession, physical evidence, eyeballs.
17 What drives public defenders and
18 defense attorneys nuts sometimes are the marginal
19 cases, and sometimes the marginal cases are high
20 profile cases. There is immense public pressure on
21 police to solve a crime. There is immense pressure
22 on prosecutors to get a conviction from victims,
23 from the press. The criminal justice system is a
24 competitive enterprise.
-----------------------------------------------------------------
42
1 Police officers don't get promotions
2 because they can't really find the guy who did it.
3 Sometimes when the pressure becomes too great, the
4 actors within the system put on what I call
5 blinders, and I don't know that they're
6 intentionally trying to convict innocent people, but
7 if the pressure gets too great, you put on the
8 blinders and you only see a piece.
9 The Ford Heights Four case where the
10 police had other suspects and didn't turn that
11 information over, and there may have been specific
12 misconduct by prosecutors who knew about Brady
13 material. Again, it's the one in a million case
14 where the prosecutor hides the ball.
15 What is much more common -- and it
16 doesn't happen a lot; it's one in 500 cases -- is
17 where the police officer hides the ball from the
18 prosecutor; sometimes intentionally, sometimes
19 accidentally.
20 Some prosecutors take the position,
21 you know, trust us, we're the government, but you
22 look at the background over the last couple years;
23 people being released from death row, the Burge
24 travesty where you have coerced confession.
-----------------------------------------------------------------
43
1 The Tribune series article -- and I'm
2 not going to talk about prosecutorial misconduct --
3 they tend to lump every reason a case gets reversed
4 into prosecutorial misconduct, and as Mr. Devine
5 said, that's improper.
6 I view and most defense attorneys view
7 prosecutorial misconduct as intentional acts, not
8 negligent acts and not the police officers not
9 turning over the evidence to the state so that the
10 state can give it to the defense.
11 But to say that there's not a problem
12 and we'll take care of it ourselves belies the very
13 existence of this committee and belies some of the
14 stories we saw in the Tribune articles in early 1999
15 where people refer to defense blankety-blank by the
16 tongue.
17 As a former prosecutor, I fell out of
18 my chair almost and wanted to throw up when I saw
19 and heard what I read in early 1990.
20 With regard to the specific proposals,
21 I have some comments.
22 The Public Defenders Association and
23 most defense attorneys I've talked to support the
24 initiatives of this committee, and if the committee
-----------------------------------------------------------------
44
1 believes that there is some constitutional
2 limitations as to what they can do, they can
3 certainly make a recommendation and certain findings
4 to the Supreme Court appropriate committee, be it an
5 IPI committee or other.
6 With regard to the Brady issue, it
7 strikes the defense bar, as the chair alluded a few
8 minutes ago, as wrong headed to say that the party
9 who is wrong has to be the movant and essentially
10 has to persuade the court of something.
11 Again, 999 out of a thousand cases
12 it's the police officers not turning the information
13 over to the prosecutors. I've talked to prosecutors
14 personally about that. It's embarrassing. They
15 don't like to see it, but after they get a
16 conviction, don't you think a prosecutor has an
17 interest in defending the conviction? Putting the
18 burden of proof on the party that caused it, and the
19 police are the prosecution.
20 The prosecutor can't just close their
21 eyes and say I didn't know anything about it. If
22 the police knew about it, they knew about it. This
23 burden is not insurmountable. You look at some of
24 the cases, and I can provide them. The state can
-----------------------------------------------------------------
45
1 provide theirs. The Illinois Supreme Court the
2 Pecararo case, murder case, Brady material not
3 disclosed. It was a informant's statement that a
4 third party admitted to the murder that was not
5 turned over to the defense. The court found
6 harmless error as the defendant himself confessed to
7 the murder.
8 Now, if you're the defense attorney, I
9 don't like this case. The position of the defense
10 is the confession was coerced or exaggerated by the
11 police. I don't like the case, but it affirmed the
12 conviction. It's not an insurmountable burden.
13 Another example, the First District
14 Norris case from 1999, failure to disclose the
15 whereabouts of a clerk who could not identify the
16 defendant -- it was a robbery of a store -- deemed
17 harmless by the First District Appellate Court as
18 the manager of the store, in fact, did identify the
19 defendant and the defendant's print was found on the
20 cash register.
21 It is not an insurmountable burden,
22 and it shouldn't be the burden of persuasion on the
23 party who was wronged to persuade the court that the
24 outcome could reasonably have been different.
-----------------------------------------------------------------
46
1 When you get into areas of intentional
2 acts by prosecutors, then the standards are a little
3 bit different. They don't talk so much about
4 harmless error. They talk about was the testimony
5 allegedly perjured; the perjured testimony, was it
6 material to the outcome of the case.
7 (Whereupon the tape was turned over
8 at this time so there may be a
9 portion missing.)
10 MR. BAKER: (Continuing) I don't need
11 to do a deposition. I've got better things to do.
12 Public defenders can't just snap their
13 fingers and direct the chief judges and the county
14 board to provide us with bodies if all we're going
15 to do is waste time.
16 If in the judgment of the committee
17 the types of cases that depositions should be
18 available to, the types of witness, confessions
19 outside the context of the police, eyeball
20 witnesses, jailhouse type informants, co-defendants
21 who are flipping, testifying on behalf of the state
22 against a co-defendant, if certain limitations are
23 viewed as appropriate, so be it.
24 But to say that the sky is going to
-----------------------------------------------------------------
47
1 fall because defense attorneys can do depositions in
2 appropriate cases, and if you want to limit it, have
3 the judge approve it. Have the defense attorney
4 justify why he or she wants to do a deposition
5 because the witness won't talk.
6 Sometimes defense attorneys would like
7 to have their client there. The vast majority of
8 our clients are guilty as hell, and one of the
9 issues that defense attorneys deal with with their
10 client is acceptance of reality. I did such a
11 terrible thing, I can't admit it to my family. I
12 can't admit it to myself.
13 Pretrial hearings, be it a motion to
14 suppress statement, a hearing with regard to child
15 hearsay that the Chair alluded to, what we call
16 115-10 hearing, child hearsay exception has a
17 pretrial reliability hearing. Shouldn't that be the
18 case for jailhouse informants?
19 Judges do it now, and in the rare
20 cases where the jailhouse informant is used because
21 there is pressure on the police and the prosecutors
22 to get a conviction, isn't it appropriate to have
23 some safeguards built in to protect a few that are
24 wrongfully accused?
-----------------------------------------------------------------
48
1 The Brady issues in terms of
2 disclosure to the defense about the background of
3 the informant obviously have not been cut from whole
4 cloth.
5 Well, the court of criminal appeals in
6 the State of Oklahoma in a case called Dodd v. the
7 State of Oklahoma in their original opinion in 1999
8 said that we're going to have a pretrial reliability
9 hearing with regard to jailhouse informants and
10 we're going to have the cautionary instruction that
11 Mr. Devine referred to that several states have.
12 I've seen the one from California. Oklahoma has one
13 now.
14 This committee is not just pulling
15 these issues out of the air. Other states, other
16 courts have considered these issues, and to the
17 extent that the committee feels that it's going too
18 far over into the prerogatives of the court, it can
19 be handled through a resolution and suggestions to
20 the court if there are concerns.
21 This border between the Supreme Court
22 and the legislature with regard to criminal
23 procedure or civil practice, the border is not
24 clear. Sometimes the courts say, you've gone too
-----------------------------------------------------------------
49
1 far. Other times they say, go ahead.
2 So the signals the legislature gets
3 frankly are like that sometimes from the court, but
4 if the members of the committee have some concerns
5 about separation of powers issues, it can be handled
6 in a different way than just sitting on our hands
7 and saying we can't do anything when we've seen what
8 we've seen for the last two years.
9 In the Dodd versus Oklahoma case, the
10 original opinion had the pretrial reliability
11 hearing. Then, for some reason irrelevant for our
12 purposes, additional judges got on the panel and
13 they deleted that provision and did mandate the
14 discovery issues in terms of the background, how
15 many other cases they testified in, and the
16 cautionary instruction.
17 Mr. Devine is right. The prosecutors
18 are leery about using jailhouse informants. I've
19 seen that myself with the honorable prosecutors out
20 in Du Page County, but sometimes people do things
21 that they wouldn't otherwise do because there is
22 pressure to obtain something, and those are the
23 situations where you push the envelope a little bit
24 too far, and sometimes you get fortress-minded and
-----------------------------------------------------------------
50
1 you say my job is to get a conviction; just like
2 defense attorneys sometimes are accused of
3 fabricating defenses.
4 But we're not sort of the round wheel
5 on the cart of justice. Our job is to make this
6 shake, to make sure the cops are telling the truth,
7 that the prosecutors can meet their burden, and if
8 they can't meet the burden of proof beyond a
9 reasonable doubt, I'm sorry, the guy walks out the
10 door.
11 When I was in law school, we talked
12 about better a hundred guilty men go free than that
13 one innocent man get convicted.
14 Now I think the ratio is about down to
15 ten to one now from the people that I've talked to,
16 but the system is out there to protect the Anthony
17 Porters who, through no fault of the prosecutors,
18 are wrongfully convicted.
19 I was told he just recently got a
20 pardon from the governor and got a recovery through
21 the Court of Claims down in Springfield.
22 The concerns of Mr. Devine are
23 legitimate and need to be considered by this
24 committee as well as the concerns of the defense
-----------------------------------------------------------------
51
1 bar, but as I talked about in terms of discovery
2 issues, jailhouse informants, burden of proof, Brady
3 violations, it is not insurmountable as suggested by
4 Mr. Devine.
5 That's all I have.
6 CHAIRMAN DURKIN: Thank you,
7 Mr. Baker. I have a few questions.
8
9 QUESTIONING OF STEVE BAKER
10 BY CHAIRMAN DURKIN:
11 Q. The deposition area, which I think has
12 been a concern with a number of people involved, was
13 drafted for felony cases where in Du Page you're
14 limited to murder cases or capital cases which is
15 something you've found to be clogging up the system.
16 Would it be insurmountable to conduct
17 a deposition on a very limited basis on those types
18 of cases in Du Page County?
19 A. I don't see that because we're not
20 going to do it generally speaking unless we have to
21 which is when the witness refuses to speak to us
22 or you've got kind of one of those weakly witnesses
23 like the jailhouse snitch that, you know, whoever
24 squeezes him, he says whatever you want him to say,
-----------------------------------------------------------------
52
1 whatever the party wants him to say.
2 If you want to restrict it to certain
3 classes of felonies, if you want to restrict it to
4 murder cases, that's a judgment obviously you'll all
5 make.
6 I mean, from a defense perspective,
7 we'd like to have it for, you know, Class 1, Class X
8 type felonies, but I understand the concerns of the
9 state, and obviously, it's going to be a considered
10 judgment by the legislature as to how far they want
11 to go.
12 Q. I'm not sure if you can answer this
13 question but I asked Mr. Devine this.
14 Do you have a ballpark figure on how
15 many murder cases were charged?
16 A. That's something --
17 Q. Because that's the issue which we're
18 going to have is how is this going to play out in
19 Cook, Du Page, and the other parts of the state if
20 we're going to open up the... Well, I'll leave that
21 maybe for another speaker.
22 I have maybe just a rhetorical
23 question, and this is by no means to be smart or
24 anything, but this is something that's been brought
-----------------------------------------------------------------
53
1 up to me is that in a civil case, a fender-bender,
2 the guy is on our expressway, I think in civil cases
3 there's a 5,000 dollar damage limit before you took
4 depositions whereas a soft tissue injury would be
5 the case where the parties have prearranged to
6 depose anybody who was traveling on the Eisenhower
7 at that hour of the morning.
8 However, if it's a triple murder,
9 somebody says they observed it two blocks away, they
10 don't have that same prerogative, same right.
11 I'm just kind of curious, how do you
12 respond to that, if there is a response, why there
13 should be a distinction between civil and criminal,
14 the two systems in Illinois?
15 A. I hate to tell you, historical
16 accidents... I mean, when I was in law school, I
17 think they talked about times where there were no
18 discovery rules in criminal cases. If you were
19 lucky, you could have a preliminary hearing in
20 whatever, the 1950s and '60s or whatever.
21 Brady has been around for years, and
22 as society has become more sophisticated, you have
23 more discovery type rules.
24 But inappropriate cases, serious
-----------------------------------------------------------------
54
1 cases, particularly where witnesses refuse to talk
2 to the defense investigator, to me, there's no
3 justification not to allow the deposition.
4 Again, restrict it to certain type of
5 cases and approval of the court.
6 CHAIRMAN DURKIN: I guess on the other
7 side of this, when I was a prosecutor, it was
8 reality that you had gang witnesses who were
9 testifying against each other, and you would want to
10 lock in those witnesses to a prior statement.
11 If you go to the grand jury, the
12 person hasn't testified in a preliminary hearing,
13 and he's now being made available for
14 cross-examination for the first time at trial.
15 Maybe the state would like to have that person
16 locked in because nobody knows if he or she is
17 going to go south on you, and it's not beyond
18 belief that witnesses are going to disappear before
19 trial too.
20 We've created some hearsay exceptions
21 where they died before trial. It happens, and
22 whether it's a natural cause of death, more often
23 than not it's not that situation, but they
24 disappear. Something happens.
-----------------------------------------------------------------
55
1 I was aware of a case in Kane County
2 just recently where they reduced the -- this is not
3 a Cook County or Du Page County issue, but I mean
4 they have murders in Kane County.
5 I was just reading through the article
6 just the other day about Brian O'Dell who had his
7 murder case reduced to 14 years and a second degree
8 murder because the state's witness took off before
9 trial.
10 I think if you had a threat because
11 his mother said he was a threat, if that witness had
12 been cross-examined under oath at a deposition,
13 there would have been a way as former testimony to
14 put that in evidence and you may be able to save
15 that murder case. So I think it cuts both ways.
16 That's my point is that I think
17 sometimes, like it or not, it's going to lock in
18 some of these tough witnesses, and if he does
19 testify, you've got a prior inconsistent statement
20 which you can use in front of a jury. Also, you've
21 got a person who just disappears for whatever
22 reason, and now you've got his statement.
23 I have no further questions.
24 Anybody else?
-----------------------------------------------------------------
56
1 Tim Osmond?
2 REPRESENTATIVE OSMOND: Good morning
3 and thank you for coming before the committee.
4 Today is the first time that we have
5 heard that part of the problem, this losing all the
6 evidence, might rest with another entity which is
7 the police department, and I don't think... Jim,
8 have we heard testimony on that before where we
9 addressed that issue?
10 CHAIRMAN DURKIN: I believe that that
11 was the testimony from last year when the defense
12 attorneys testified.
13
14 QUESTIONING OF STEVE BAKER
15 BY REPRESENTATIVE OSMOND:
16 Q. Much of the discussion that we've had
17 with the state's attorney office is about the amount
18 of new training that has been put forth over the
19 last year on educating prosecutors about disclosure
20 and that.
21 If you would care to comment, what
22 have we done with police departments in educating
23 them as to gathering of evidence?
24 Is there something similar to what
-----------------------------------------------------------------
57
1 we're doing with the state's attorneys' offices?
2 A. I'd probably defer to prosecutors on
3 that because my dealings with police departments are
4 fairly rare in terms of, you know, issuing a
5 subpoena for certain police reports and whatnot.
6 But it is fairly common, again, it
7 doesn't happen all the time, but it is not uncommon
8 for certain reports not to get to the state's
9 attorney's office.
10 Now, why that happens I don't know.
11 It's a question you can ask prosecutors.
12 When I was a prosecutor, it happened
13 15 years ago, and my boss was doing a murder trial
14 one time and in the middle of jury selection, a beat
15 officer from the investigating police department
16 came over to my boss's office and said, "Oh, I
17 forgot to tell you, Jim, he confessed to me. Here
18 is the report." And my boss says, "Get the hell out
19 of my office."
20 So why police do that, I don't know.
21 It's embarrassing to the prosecutor when they have
22 to disclose something post trial, but their back is
23 up because they have to defend the conviction.
24 They're not, generally speaking, just going to roll
-----------------------------------------------------------------
58
1 over and play dead. They're going to make the
2 defense hop through the hoops.
3 Q. It may be that, what we've heard from
4 the state's attorney's office that we've undergone
5 extensive training, it may be that they've included
6 police officers, and I just didn't hear that, so I
7 just wanted to bring that point too.
8 And the difference between deposing
9 the witness that we're talking about today and you
10 having the ability to question the witness as it
11 exists today, when you question a witness today, are
12 they under oath to tell the truth to you when you
13 simply question them?
14 A. They're not under oath, but one of the
15 hearsay exceptions I think deals with occurrence
16 witnesses where they've signed off on a statement.
17 You know, I'm interviewing or my investigator is
18 interviewing an eyeball witness. That person is an
19 occurrence witness, and under one of the statutes,
20 115-.10.1 or 2, whatever it is now, if that
21 individual changes their testimony on the witness
22 stand, the attorney, be it the prosecutor or the
23 defense, can introduce that signed statement as
24 substantive evidence, something that the jury can
-----------------------------------------------------------------
59
1 rely upon, not just simply on the issue of do I
2 believe what he's saying now but here's what he said
3 before. He signed off on it. No threats were
4 made. I can consider that as what lawyers call
5 substantive evidence as opposed to simply the show
6 leads.
7 Q. As a practical matter then, you having
8 access and talking to a witness today, is that the
9 same as if you had the ability to depose a witness?
10 A. Depositions are broader because then
11 you can get into issues involving statement
12 witnesses, the jailhouse informant or the ex-wife
13 that your client confessed to or whatnot.
14 There's not a specific hearsay
15 exception for that unlike occurrence witnesses, but
16 obviously, if something happens at trial, you'd like
17 to have what I call potential turncoat witnesses
18 locked in as the chair alluded to.
19 If I'm a prosecutor dealing with a lot
20 of gang bangers who have loyalty to last about as
21 long as your arm, you're going to lock them in in
22 front of a grand jury, particularly if they're
23 occurrence witnesses, so that if they flip on you at
24 the trial, you introduce the transcript as
-----------------------------------------------------------------
60
1 substantive evidence.
2 And occasionally, that needs to be
3 done by defense attorneys as well where we are
4 calling sometimes witnesses who are hostile.
5 I had a case some years ago where it
6 was a gang murder and trying to prove up some
7 violence in the victim's gang area, and I called the
8 victim's girlfriend to testify about certain acts of
9 violence against her, and she was the victim's
10 girlfriend, didn't want to testify, so I was able to
11 introduce into evidence her signed sworn battery
12 complaint against her then boyfriend.
13 So it's one of those issues that cuts
14 both ways as Representative Durkin referred to, and
15 it educates, in my view, the client who's got their
16 head stuck in the sand to say, you know, whether
17 they're present, we'd like them present in some
18 situations, otherwise not, but it educates them as
19 to what's going on here, and it may be in their
20 interest to negotiate.
21 Q. So the biggest difference though is
22 just mandating being able to interview a witness
23 because you're deposing them and they're going to
24 have to cooperate with you?
-----------------------------------------------------------------
61
1 A. Right.
2 Q. Because right now they don't have to
3 talk to you?
4 A. Yeah. They can say go to "H---" and
5 I'll see you at trial, and that's a problem.
6 REPRESENTATIVE OSMOND: Thank you.
7 (At this point the court reporter is
8 reporting the proceedings.)
9
10 QUESTIONING OF STEVE BAKER
11 BY REPRESENTATIVE HOWARD:
12 Q. Mr. Baker, I think I heard Mr. Devine
13 earlier indicate that there was not a need for one
14 of these proposals because it was covered or
15 addressed sufficiently by Brady.
16 You indicated that you were aware of a
17 number of situations and cases where Brady was
18 violated.
19 A. Right.
20 Q. And if that is the case, in your
21 opinion, were there adequate remedies or adequate
22 actions taken against those individuals who violated
23 that particular law?
24 A. Not that I'm aware of. I mean, you
-----------------------------------------------------------------
62
1 don't see a whole lot of prosecutors disciplined by
2 ARDC for overreaching. You don't see a whole lot of
3 police officers... I think there's one out of
4 Du Page County where a police officer literally was
5 cooking the books on physical evidence inventory,
6 and I think he's under indictment. I'm not sure
7 what happened with the case, but it happens. It
8 happens occasionally.
9 But prosecutors, generally speaking,
10 don't like prosecuting police officers. They work
11 with these guys all the time. They need them.
12 So, you know, sometimes when the
13 police hide the ball, either intentionally or
14 inadvertently, if I'm a prosecutor, maybe I'm
15 tempted to look the other way.
16 Q. So there is something that's necessary
17 to protect against those kinds of situations?
18 A. Yeah. Again, I don't see a whole lot
19 of intentional prosecutions to convict innocent
20 people. That's not what we're talking about.
21 What we're talking about is
22 particularly in some cases where the police or the
23 prosecutors feel pressured to solve the case and
24 pressured to get a conviction, notwithstanding the
-----------------------------------------------------------------
63
1 quality of the evidence, is when these things
2 happen.
3 Q. But they're pressured to do these
4 things for what reasons? You're saying promotions,
5 newspaper publicity?
6 What are the reasons that you think?
7 It just so happens in the process of getting what
8 they want, then persons are harmed.
9 A. I can't speculate on what other people
10 think. All I know is from my own experience as a
11 prosecutor, and not so much out of Du Page County
12 but from other PDs that I've talked to downstate,
13 sometimes police get extremely tunnel vision. They
14 may have some information that points to suspect A
15 and some information that points to suspect B, and a
16 decision is made by somebody to go after A.
17 Then all of a sudden the stuff about B
18 kind of just gets stuck in a file drawer someplace.
19 You're going to have to ask prosecutors and police
20 why that happens. All I know is that it
21 occasionally does happen.
22 REPRESENTATIVE HOWARD: All right
23 then. I'll leave that. Thank you.
24 CHAIRMAN DURKIN: Does anybody else
-----------------------------------------------------------------
64
1 have any questions?
2 All right. We do have the court
3 reporter here now. Thank you, and I'm sorry that
4 you were delayed because of the plane.
5 I just wanted to mention that we also
6 have -- I just wanted to recognize Scott Nelson and
7 Dave Ellis who are two lawyers that have been
8 working on the committee for the past year and a
9 half. I appreciate the hard work that tat they've
10 done.
11 We also have a law student, Katie
12 Kruse, who has been working with me this summer on
13 putting together the transcripts and working on
14 research, and I appreciate what she's done for this
15 committee.
16 All right. The next speaker, I'd ask
17 Mr. Birkett if he's ready.
18 Thank you very much, Mr. Baker.
19 MR. BIRKETT: Good morning,
20 Mr. Chairman. My name is Joe Birkett, State's
21 Attorney from Du Page County. B-i-r-k-e-t-t is the
22 spelling of my last name.
23 Thank you for inviting me here to
24 address you on this important topic. I've been a
-----------------------------------------------------------------
65
1 prosecutor in my entire career since I was sworn
2 into the practice in 1981.
3 I have prosecuted thousands of cases
4 and tried more than 100 felony cases to a verdict.
5 I'm responsible for a staff of 85 assistant state's
6 attorneys, 12 full-time investigators, and over 90
7 support staff.
8 I'm currently president of the
9 Association of Government Lawyers in Capital
10 Litigation and National Association of the 38 states
11 and the federal government which have the death
12 penalty.
13 I'm on the board of directors for the
14 Illinois Appellate Prosecutors Office. I serve on
15 the House Task Force on Capital Punishment, and I've
16 chaired the Criminal Law Committee for the Du Page
17 County Bar Association.
18 That's just a little bit by way of
19 background.
20 I became a prosecutor because it is a
21 noble profession worthy of praise and admiration for
22 the great work that prosecutors do in protecting
23 society, in seeking justice, in protecting the
24 rights of our clients, the citizens of this state
-----------------------------------------------------------------
66
1 including the accused in criminal cases.
2 Prosecutors are keenly aware that they
3 are in a position of public trust and that because
4 of the power we have, we must avoid even the
5 appearance of impropriety.
6 We recognize that our performance is
7 so visible to the public that any mistake that we
8 make will reflect on the legal profession as a whole
9 as well as the entire judicial system of this state.
10 Our representation of this state's
11 interest in the courtrooms influences the public
12 confidence in the criminal justice system. We
13 recognize and appreciate the responsibility we have
14 to ensuring that trials are fair and that judgments
15 are accurate. The law, in fact, presumes that
16 state's attorneys act with a heavy sense of public
17 duty and the obligation to enforce all laws.
18 As state's attorney, I recognize that
19 I am also responsible for the professional conduct
20 of my assistant state's attorneys.
21 During the last 15 years, we have
22 taken that role and responsibility very seriously
23 under now Attorney General Jim Ryan and under my
24 administration. We take this very seriously.
-----------------------------------------------------------------
67
1 I have training in my office on all
2 facets of the job from the screening of cases
3 through post conviction; all facets.
4 Assistant state's attorneys do trial
5 critiques. They have to go to NDAA training. They
6 do training at the National Academy in South
7 Carolina. Steve knows because he's in the courtroom
8 sometimes late when we're on the fourth floor having
9 our training. That's not new in Du Page County, and
10 it's not new in Cook County either.
11 We act with a heavy sense of duty.
12 One of the questions was asked, "Do you have
13 training for the police?" Yes, we do. In Du Page
14 County, I have a regular police training academy
15 that I furnish as a service to law enforcement.
16 And it's an honor to follow Steve
17 who's a good friend of mine. We disagree on some
18 issues, but we have collaborated in the past on many
19 issues.
20 In my office, the training includes a
21 heavy ethics component. Some of our speakers over
22 the last few years have included Judge Bower,
23 appellate court judge for the Seventh Circuit Court
24 of Appeals and former chief judge, justices of the
-----------------------------------------------------------------
68
1 Illinois appellate courts including Robert Steigmann
2 from the Fourth District, chief judge of the 18th
3 Judicial Circuit, Du Page County, Tom Callum, John
4 Bowman before him, the administrator of the ARDC,
5 Mary Robinson, has spoken to our prosecutors and
6 many others; just a sampling. So we take that very
7 seriously.
8 The approach to our responsibility is
9 not unique in Du Page County. It is shared by
10 prosecutors throughout this state and the appellate
11 prosecutors office who has stepped up its training
12 which was already one of the finest in the nation.
13 Contrary to some of the criticism
14 leveled at our profession, prosecutors are not
15 leaded to the past and we are not against meaningful
16 reform. We favor any reform which conforms to the
17 needs of society.
18 As a public official in constant
19 contact with the day-to-day administration of
20 criminal justice, we are in a unique position to
21 advance change and influence the improvement of
22 criminal justice. You know that my office alone in
23 the last few years has been responsible for drafting
24 more than 30 pieces of critical legislation
-----------------------------------------------------------------
69
1 improving the administration of justice: sex
2 offender registration reforms, reckless homicide
3 sentencing enhancement provisions, speedy trial
4 reforms which benefit both the defendant and the
5 state, and probably most important, one that's being
6 touted across the nation, the post trial DNA testing
7 provision which I worked on. Steve Baker when he
8 was chair of the Criminal Law Committee worked on
9 that with me.
10 We have been applauded and touted as a
11 model for the nation. In March of 1999, all 102
12 Illinois state's attorneys recommended to the
13 General Assembly and to the Supreme Court nine
14 proposals for improvement in the handling of capital
15 cases.
16 These proposals have been well
17 received by both the General Assembly and the
18 Illinois Supreme Court and all have either been
19 adopted or are under serious consideration because
20 they are all meaningful.
21 It is in the public interest for
22 prosecutors to improve the quality and the
23 efficiency of criminal justice, and we have had and
24 want to continue a good working relationship with
-----------------------------------------------------------------
70
1 the courts, with the defense bar, and with the
2 General Assembly.
3 Reforms which are the product of this
4 type of collaboration are no