Judicial Rulings
When can a drug rap cost a car?
The Illinois Supreme Court, like Gilbert and Sullivan's Mikado, has "an object all sublime ... to let the punishment fit the crime." That was the theme of two decisions filed September 29. Both cases involved attempts by authorities to seize trucks belonging to people convicted of possessing small amounts of cocaine. The two defendants had been arrested for other reasons; the drugs were discovered during routine searches.

In a Kane County case, the driver had the drug concealed in his underwear. The court ruled that forfeiture was not appropriate. In 1992 it had ruled that the legal language permitting forfeiture of a car used to "facilitate" possession of drugs meant that the car had to make possession "easier or less difficult" (see Illinois Issues, March 1993, p. 29). In this case, the court ruled that mere possession by the driver was incidental, and that "it would have made no difference had the defendant been walking, taking a bus or riding a motorcycle."

In the second case, a Lake County driver allegedly told an officer that he bought the cocaine for an employee. The court ruled that the truck did facilitate possession of the drug.

After the trial court decision in this case, the U.S. Supreme Court ruled that property forfeited by drug offenders constitutes a monetary penalty subject to Eighth Amendment guarantees against excessive punishment. Since Illinois' language on forfeiture resembles the federal statute, the state court had to consider tests to determine excessiveness. It adopted a three-prong test already used in lower federal courts: balancing the gravity of the crime against the harshness of the penalty; determining whether the property is integral to the crime; assessing whether use of the property was extensive. This is the starting point for case-by-case consideration.

Justice James D. Heiple wrote both opinions: People v One 1986 White Mazda Pickup Truck (Docket No. 76349), and People ex rel Waller v 1989 Ford F350 Truck (Docket No. 76405). There were no written dissents.

Blood test for sex offender is constitutional
The Illinois Supreme Court has ruled that convicted sex offenders must take a blood test before being paroled. It filed an opinion without written dissent September 22.

The plaintiff in this case was convicted in 1973 and has been eligible for parole for a number of years. In 1992, he refused to provide a blood specimen. The law requiring the test, which took effect in 1989, sets up a data bank containing the genetic markers of convicted sex offenders and requires a blood specimen from any person convicted of a sexual offense. The sample must be given before release.

The plaintiff argued that this was unconstitutional ex post facto law and. since it could keep him in prison beyond a possible release date, involved constitutional rights of due process and liberty. He did not argue that the requirement of a blood specimen is unconstitutional and agreed that officials could forcibly obtain one. Nevertheless, the court said the requirement violates no constitutional guarantees and that the law merely sets the time by which the sample must be given.

Justice John L. Nickels wrote the opinion in Doe v Gainer (Docket No. 75806).

Psychotropic drugs a reason for fitness hearing
The Illinois Supreme Court ruled that a defendant on psychotropic drugs is entitled to a fitness hearing. In its ruling, the court reversed a murder conviction because the defendant was denied a hearing on his fitness to stand trial, though authorities were administering psychotropic drugs. The 14th Amendment to the U.S. Constitution forbids prosecution of those unfit to stand trial.

The defendant's attorneys had argued that his learning disability prevented him from understanding court proceedings. At a hearing on the motion, expert witnesses testified to a variety of disabilities, but the judge did not order a formal fitness hearing. At sentencing the attorneys again moved for a fitness hearing, which was denied. At this point it was revealed that the defendant was given psychotropic drugs during his incarceration in order to control hallucinations, but attorneys did not cite the statutory requirement that defendants on psychotropic drugs for medical reasons are entitled to a fitness hearing. They assumed that this was discretionary with the court.

The high court said that its rules allow it to take note of plain errors, even if they are not introduced by attorneys. Here it found ineffective assistance of counsel that prejudiced the defendant's case, since he was "entitled" automatically to a fitness hearing.

Justice Moses W. Harrison II wrote the majority opinion. Justice Benjamin K. Miller, joined by Chief Justice Michael A. Bilandic and Justice James D. Heiple, dissented. Miller said the proper question was whether the result would have been favorable for the defendant if the fitness hearing had been held. He did not think the evidence showed this.

When is a witness an expert?
You don't need a degree or a certificate to be an expert witness; experience counts, too. The court took this position in an opinion filed September 22.

In this case, the coach of a boys' baseball team was charged with aggravated sexual assault. He argued that his contact with the victim was part of a training regimen to develop strength. The state rebutted with testimony from two athletic trainers, neither of whom had formal professional credentials. The state called them for lay opinion on the validity of the training. The court agreed with the defense that this testimony was not admissible as lay opinion testimony, but allowed it to stand as expert testimony. The court said that lay opinion testimony must be based on first-hand knowledge or observation, but that the witnesses had "based their conclusions on second-hand knowledge ... or their responses to hypothetical questions asked by the prosecutor. ..."

While the prosecution specifically said that this was not expert testimony, the high court ruled that expert knowledge does not rest only on academic qualifications: "Rather, the test is whether the expert has knowledge and experience beyond the average citizen that would assist the jury in evaluating the evidence."

Justice Charles E. Freeman wrote for the majority in People v Novak (Docket No. 75279). Justice James D. Heiple dissented, saying that this testimony could have swayed the jury. "Because the witnesses were not offered as experts, defendant did not have the opportunity to cross-examine the witnesses for the purpose of challenging their certification as experts."

Court briefs
•Last-ditch attempts to get the term-limit referendum on the November ballot have failed. The Illinois Supreme Court and the U.S. Supreme Court rejected emergency motions. The state's high court confirmed without further comment its earlier decision, while U.S. Supreme Court Justice Sandra Day 0'Connor denied the application to the federal court.

•In an effort to streamline an adoption process that can take up to five years, the state Supreme Court chose a non-profit child-welfare group to apply for a federal grant. The Citizens Committee on the Juvenile Court will act as the court's agent. Under a 1993 federal law, the court may apply to the Department of Health and Human Services for a four-year grant. The $75, 000 first-year grant permits assessment of foster care and adoption laws and preparation of a system-wide improvement plan. During the remaining three years the plan would be implemented, with the state matching additional federal money three-to- one.

F. Mark Siebert

November 1994 / Illinois Issues / 27