In a case involving armed robbery and the murder of two Chicago policemen, the Supreme Court vacated the death sentence imposed on the defendant, reversed his conviction and remanded for a new trial. The court held that the trial court erred when it refused to suppress the defendant's confession after the state conceded that he had suffered serious injuries while in police custody. The court also addressed questions on the defendant's right to counsel and on evidence obtained by hypnosis. Justice Ben Miller wrote the opinion in People v. Wilson (Docket No. 58276) handed down April 2. Justice Seymour Simon did not participate. The state did not dispute that the defendant had received 15 separate injuries while in police custody but said that all but one occurred after he had signed the confession. The state did not present testimony explaining how and when the injuries were inflicted. Justice Ben Miller said that the state's denial was not enough: "This court has held that when it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession." He said the question of when the injuries occurred is as relevant as how and why as established in People v. La Frana ((1954), 4 Ill. 2d 261, 267)).

The defendant also sought to suppress an incourt identification based on an earlier lineup identification when the defendant had no counsel. He argued that filing of a complaint to obtain a warrant marked the beginning of adversary proceedings, which would have entitled him to counsel at the lineup. Although the court did not specify when the adversary proceedings begin, it held that filing of the complaint is not part of them.

In the matter of hypnosis, the court ruled that a previously hypnotized witness may testify if evidence is presented establishing the fact of hypnosis and if the defense is allowed to cross examine concerning prehypnotic memory, which the trial judge did not permit, and to present expert opinion on the likely effects of hypnosis on the testimony generally, which was also rejected at the trial.

The constitutionality of Illinois' feticide statute (III. Rev. Stat. 1981, ch. 38, sec. 9-1.1) was upheld April 2 in a decision handed in People v. Shum (Docket No. 61446).

The defendant had received the death penalty for murder of a woman nine months' pregnant and an extended prison sentence for murder of the unborn child. Feticide, as defined by the statute, involves intent to kill or do great bodily harm to the mother (or knowing that whatever actions against the mother would likely cause death or great harm), and knowledge that the woman was pregnant. In this statute a fetus is defined as "being capable, at the time of its death, of sustained life outside of the mother's womb" (Ill. Rev. Stat. 1981 ch. 38, secs. 9 — l.l.(a)(b).

Among the issues raised by the defense was the consistency of the feticide statute with section 1 of the 1975 Abortion Act (Ill. Rev. Stat. 1981, ch. 38, sec. 61-21), which declares it is the policy of the state to protect the right to life of an unborn child from the time it is conceived. The defendant argued that this policy cannot be reconciled with feticide statute. The court, however, said that the two statutes "address widely different interests in what must be considered proper terms for each" and that the feticide statute "is not inconsistent with any permissible policy of the Illinois General Assembly."

Justice Howard C. Ryan, who wrote the opinion for the majority, noted that the U.S. Supreme Court has held in Roe v. Wade (1973) that abortion is a constitutionally protected right. He said that the feticide statute, on the other hand, attempts to protect a pregnant mother and her unborn child from the "intentional wrongdoing of a third party" by punishing the wrongdoer "not only for any injury to the woman but also for the death of her viable fetus." Ryan explained the intent of the legislature when passing the 1975 abortion law: ". . . a mother should not at any time have the option to voluntary [sic] terminate her pregnancy, except when necessary to protect her life. The legislature also went on to state, however, that this policy is impermissible under the Supreme Court's decisions. Thus there is no inconsistency between the two statutes." The death penalty was upheld.

An indigent defendant does not have the right to a court-appointed counsel when challenging the summary suspension of his driver's license for refusal to take a breathalyzer test. The Illinois Supreme Court affirmed the distinction between civil and criminal proceedings in the state's DUI law April 2 and ruled that summary-suspension (implied consent) hearings and hearings to issue a judicial driving permit are civil in nature. Right to an appointed counsel only comes with criminal proceedings. Justice Joseph H. Goldenhersh wrote the opinion for the unanimous ruling in Koss v. Slater (Docket No. 63294).

The most recent battle in the ongoing struggle between the Illinois Supreme Court and Auditor General Robert C. Cronson resulted in a setback for Cronson. He lost when Cook County Circuit Court Judge David J. Shields ruled April 21 that two agencies under the state Supreme Court are not state agencies and hence not subject to audit by the auditor general. The court's holding was based on the definition of state agencies in the state's Auditing Act (Ill. Rev. Stat., Ch. 15, sec. 301-7).

Since 1977 Cronson has refused to audit funds appropriated for the Illinois Supreme Court because he was not allowed to audit the Board of Law Examiners and the Attorney Registration and Disciplinary Commission. Judge Shields's opinion seems to reiterate the earlier position of the Supreme Court. He said that since both bodies were created by the Supreme Court and not by statute and are funded by attorney registration and examination fees and not appropriations, they are outside the scope of the state auditing act.

As of May 5, Cronson's office had not yet decided the strategy it would use in appealing the ruling. Two other cases also involving the jurisdictional conflict between the auditor general and the Illinois Supreme Court are already being appealed to the U.S. Supreme Court (see Illinois Issues, February 1987, p. 31).

F. Mark Siebert