New light on death penalty

Five decisions filed February 11 by the Illinois Supreme Court affect the imposition of the death penalty in various ways.

The court found Illinois Pattern Jury Instruction, Criminal, No. 7A. 15 (2nd ed. 1981) incomplete when a jury conducts a death penalty hearing in a case of multiple murder. It only says that if the death penalty is not imposed the judge will impose a sentence of imprisonment, while the statute (see Illinois Revised Statutes 1981, ch. 38, sec. 1005-8-l(a)(l)(c)) makes mandatory a sentence of whole natural life.

The court ruled that effective with its ruling the new instruction in cases of multiple murder "should state that if the jury finds mitigating factors sufficient to preclude imposition of the death penalty, the defendant will be sentenced to natural life imprisonment, and no person serving a term of natural life imprisonment can be paroled or released, except through executive clemency." This is necessary to prevent the jury from issuing a death sentence, thinking it is the only way to protect society.

Justice Daniel P. Ward wrote the opinion in People v. Gacho (Docket No. 61294); Justice Seymour Simon dissented on other issues.

The verdict of guilty but mentally ill (GBMI) does not prevent imposition of the death penalty, according to another of the court's decisions. In this case the circuit court accepted the defendant's plea of GBMI but eventually imposed the death penalty. The high court cited language in section 5-2-6(a) of the Uniform Code of Corrections (see III. Rev. Stat. 1983, ch. 38, sec. 1005-2-6): "The court may impose any sentence upon the defendant which could be imposed pursuant to law upon a defendant who had been convicted of the same offense without a finding of mental illness."

The court also cited a section of the Criminal Code of 1961 (see Ill. Rev. Stat. 1983, ch. 38. sec. 6-2(c)): "A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found GBMI." The court said that a GBMI offender is no less guilty than one who is guilty and not mentally ill.

Justice Ben Miller wrote the opinion in People v. Crews (Docket No. 62785). A special concurrence by Justice William G. Clark, joined by Justice Daniel P. Ward, responded to points raised in dissent by Justice Seymour Simon.

Further definition of the high court's review of death penalties, required by the state Constitution (art. VI, sec. 4(b)), was the result of another case. The court said: "Although we have not heretofore defined the limits of such a review, we now hold that when the defendant fails to comply with the statutory requirement to file a post-trial motion, our review will be limited to constitutional issues which have properly been raised at trial. . . sufficiency of the evidence, and plain error." The statute referred to is the Code of Criminal Procedure (see Ill. Rev. Stat. 1983, ch. 38, sec. 116-1).

Justice Howard C. Ryan's opinion in People v. Enoch (Docket No. 59390) answered points raised in Justice Seymour Simon's dissent, among them the assertion (also attributed by Ryan to defense attorneys) that objection during the trial is sufficient to preserve a question for review. Justice Joseph F. Cunningham did not participate.

In another appeal of the death penalty the Supreme Court considered issues in the absence of a post-trial motion "in light of the [circuit] court's remarks suggesting that a contemporaneous objection was, by itself, sufficient to preserve an issue for review." At the same time it stated that constitutional issues raised on appeal but not at any time in lower court proceedings would be considered waived. Nevertheless Justice Ben Miller's opinion did comment on the constitutionality of the statute in question in People v. Orange (Docket No. 62144).

In a complicated opinion involving introduction of victim impact testimony at a sentencing hearing, the Illinois Supreme Court established the principle that a convicted person is entitled to only one hearing under the Post-Conviction Hearing Act (see Ill. Rev. Stat. 1985, ch. 38, sees. 122-1 through 122-8). Justice Ben Miller's opinion in People v. Free (Docket No. 64667) gave conditions under which successive post-conviction hearings are possible. The U.S. Supreme Court's decision in Booth v. Maryland (482 U.S., 96 L. Ed. 2d 440, 107 S. Ct. 2529) has since held victim impact testimony to be unconstitutionally inadmissible in sentencing hearings. Justices William G. Clark and Seymour Simon filed dissenting opinions, and Justice Howard C. Ryan filed a special concurrence.

Confidentiality of rape counseling upheld

The absolute privilege of communication between an alleged rape victim and a counselor (see Ill. Rev. Stat. 1985, ch. 110, sec. 8-802.1) was affirmed by the Illinois Supreme Court in a decision filed February 11. In this case the defendant sought to subpoena records that might provide a basis for impeaching the testimony of the victim. He made only a general request

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for an in camera inspection. The majority held that this is prohibited by the statute, which seeks to shield rape victims against embarassing cross-examination. An earlier version permitted such inspection.

The court held that the statutory prohibition is absolute and that this defendant did not claim the presence of any specific information. It held that a contrary opinion would open all such records to in camera inspection, thus breaching the assurance of absolute confidentiality and possibly deterring victims from seeking counseling. Justice Ben Miller wrote the opinion in People v. Foggy (Docket No. 64573).

Justice Seymour Simon's dissent called for a return to the former provision. He held that the present statute unconstitutionally infringes a defendant's rights of due process and confrontation. While lauding the aims of the statute, he felt that the state's legitimate interest in encouraging effective rape crisis counseling would be only minimally impaired in fulfilling its overriding duty to protect constitutional rights.

Clarifying the termination of parental rights

An apparent contradiction in the laws governing termination of parental rights was clarified in a February 11 decision of the Illinois Supreme Court. The Adoption Act (see Ill. Rev. Stat. 1983, ch. 40, sec. 1501(D)) provides that such rights may be terminated if parents are found to be "unfit," but there must be clear and convincing proof. One evidence of unfitness is two findings that a child has been abused. Such findings are made under the Juvenile Court Act (see Ill. Rev. Stat. 1983, ch. 37, sec. 704-6(1)), using "the standard of proof. . . in the nature of civil proceedings," which has consistently been interpreted as preponderance of the evidence, a lower standard than clear and convincing evidence.

The court held this to be an unconstitutional infringement of due process. Justice Daniel P. Ward wrote the opinion (Justice Joseph F. Cunningham did not participate) in In re Ennis (121 Ill. 2d 124). Justice Seymour Simon wrote a special concurrence, joined by Justice Ben Miller.

Shedding light on post-conviction petitions

The word "shall" is mandatory in one part of the Post-Conviction Hearing Act (see Ill. Rev. Stat. 1985, ch. 38, sec. 122-2.1) but directory in another part according to a decision handed down by the Illinois Supreme Court on February 11. Three consolidated cases raised a number of issues, but the court concluded: "The [circuit] court shall examine the petition and enter an order within 30 days. . . . If the petition is found to be frivolous and patently without merit, the court shall dismiss the petition. In both cases the word 'shall' is construed. . . to be mandatory. It is not mandatory, however, that the order dismissing the petition be written, or that it specify findings of fact and conclusions of law" (emphasis in original).

Justice Howard C. Ryan wrote the opinion in People v. Porter, People v. Singleton and People v. Mason (Docket Nos. 63724, 63384, 63716 cons.). Justice Seymour Simon's dissent called the interpretation "chameleonic."

Effect of swing vote?

The presence of Justice Joseph F. Cunningham seems to have led to a reversal of an earlier decision by the Illinois Supreme Court. In November 1986 the court ruled that the city of Highland Park did not have to conform to certain provisions of the Prevailing Wage Act (see Ill. Rev. Stat. 1985, ch. 48, sees. 39s-l through 39s-12). Justices Seymour Simon, William G. Clark and Daniel P. Ward dissented. The following month the court agreed to rehear the case. Cunningham has since replaced retired Justice Joseph H. Goldenhersh and joined with the former dissenters. Simon wrote the opinion in People ex rel Bernardi v. City of Highland Park (121 Ill. 2d 1). Justice Ben Miller, author of the 1986 opinion, wrote a dissent, joined by Justices Howard C. Ryan and Chief Justice Thomas J. Moran. At issue is the ability of a home-rule unit to avoid complying with provisions that it pay the prevailing wage for its area on public construction projects. Simon pointed out that the original decision might jeopardize many other state labor laws.

Judge substitution constitutional

The right of a defendant to an automatic change of judge upon a claim of judicial prejudice was upheld in a February 11 decision of the Illinois Supreme Court. At issue was a provision of the Code of Criminal Procedure of 1963 (see Ill. Rev. Stat. 1985, ch. 38, sec. 114-5(a)), although the initial statute in this area, changing the generally accepted common law principle, was passed in 1874.

The court held that automatic substitution does not infringe the constitutional powers of the judiciary when the defendant makes a good faith assertion of prejudice. Justice William G. Clark wrote the opinion in People v. Walker (119 Ill. 2d 465). In a special concurrence Justice Ben Miller, joined by Justices Seymour Simon and Daniel P. Ward, said that "the automatic-substitution provision contains no good-faith requirement" and that "the principles reflected in the statute have become so interwoven with the laws of this State, including the opinions of this court, that they should be enforced as accepted by the courts even though there may be some infringement on the powers of the judicial branch."

F. Mark Siebert

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