Gov. George Ryan's approval ratings may have nosedived with the public, but he's still a popular fellow with state lawmakers.
A joint session of the General Assembly welcomed him warmly a few weeks ago when he presented his third State of the State message, and no doubt he'll get a similarly cordial reception over the next few weeks as he pushes his proposed budget for fiscal year 2002.
Although the governor's message seemed more retrospective than visionary, he drew frequent applause from the assembled legislators. Some of the enthusiasm was predictable: for the $1.1 billion in tax relief Ryan and the legislature have provided in the last two years; for his feisty defense of the 3,300 local public works projects insensitive media types like to call pork, while Ryan prefers "necessary, local projects that make our communities in Illinois better ? and safer ? places in which to live."
Surprisingly, though, the most sustained applause was touched off by Ryan's comments about the moratorium on executions he imposed a year ago amid the release of 13 inmates from Death Row.
The decision has brought the Republican governor grief from his party's hard-line, law-and-order types, but he earned a standing ovation from Democrats and many Republicans when he noted: "I don't believe any of us can support a system, which, in the administration, has proven to be so fraught with error and has come so very close to the ultimate nightmare and that's the state's taking of an innocent life. There's no margin for error when it comes to putting a person to death."
Assuming their response to the governor was heartfelt, lawmakers will have a chance this spring to overhaul a process that has resulted in the Illinois Supreme Court's overturning more than half the death penalties imposed by trial courts and juries since 1977.
Some guidance may come from the commission the governor appointed a year ago to study the state's death penalty process, but the panel, headed by former U.S. District Judge Frank McGarr, has no fixed deadline for completing its work.
Meanwhile, the issues are too pressing for lawmakers to defer. Already, the Illinois Supreme Court and the previous General Assembly have responded to some obvious weaknesses in the system.
In January, the high court imposed minimum experience and special training requirements for both prosecutors and defense attorneys in capital cases, addressing a chronic concern that litigators, especially defense lawyers, too often lack the expertise needed to handle a capital case. The rules also call for specialized training in capital punishment law and procedure for judges.
In another effort to improve trial quality, lawmakers two years ago created a special fund to cover some of the added expenses for both sides associated with death penalty cases. Currently, $17.7 million is budgeted for the fund, with $12.8 million allocated to help the defense hire private investigators, make use of genetic testing and employ expert witnesses at trial.
Such needed financial assistance should continue, of course, but lawmakers also ought to consider strengthening the system through procedural reforms.
A good place to start would be a package crafted by Winchester Republican Rep. James Durkin following two years of hearings by the House Committee on Prosecutorial Misconduct, which he chairs.
Perhaps the most significant proposal would allow both state's attorneys and defense lawyers to take depositions before trial from each others' witnesses in murder cases and other cases in which life imprisonment is a possible sentence.
While a "pretty dramatic change,"such discovery is already standard in civil cases involving only monetary damages, Durkin says, so shouldn't a defendant facing execution have the same right?
Moreover, he notes, other states that allow discovery in criminal matters find that depositions resolve cases more often than not before trial, flushing out issues and helping attorneys sense the strengths and weaknesses of their cases.
"If depositions are done well, they make a strong case that much stronger at the appellate and Supreme Court levels, and they expose a weak case at an earlier stage," he says.
Another proposal would require judges to determine before trial whether a jailhouse informant can be a credible witness. Deals between prosecutors and "snitches" would have to be disclosed, as well as anything else that might impact the witnesses' credibility.
A final measure would permit a judge to order a new trial if prosecutors withhold evidence from defense attorneys that could help establish a defendant's innocence, which Durkin says would write into state law a U.S. Supreme Court ruling that spells out prosecutors' duty to disclose all exculpatory evidence to the defense.
As his committee pondered such issues, some state's attorneys complained that the proposals would make their jobs harder. Maybe so at first, Durkin concedes, but ultimately the requirements would help prosecutors by fortifying convictions against later appeals.
"They might be more work, but they'll make cases stronger in the long run," says Durkin, who was a Cook County prosecutor for five years. "We're living in an era in which there is recognized concern about criminal justice, especially in Illinois, and these issues are not going away."
Indeed, a nagging question persists, despite the efforts of Durkin, the McGarr commission and others: What if it's not possible to reform the system so that there's absolutely zero chance the governor's "ultimate nightmare," the execution of an innocent person, can occur? How much uncertainty are Illinois citizens willing to accept? On the answer to that tough question hangs the future of the death penalty in Illinois.
Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois at Springfield.
