Shame: Illinois Stopgap Budget is Unacceptable to Exonerees

Yet again, Illinois Governor Rauner and lawmakers in Springfield have proven themselves unable to perform the most basic function of running a state: passing a budget. Illinois has not had a real budget for over a year, and with the passage on June 30 of a “stopgap” (read: bare bones) appropriation bill, our elected officials have given themselves permission to continue this train wreck for another six months.

How have exonerees fared during the budget standoff? They have received zilch. Illinois is one of 30 states (plus the federal government and D.C.) with a compensation statute on the books. It is not overly generous – it caps awards at around $200,000 regardless of length of incarceration – but exonerees who are declared innocent rightfully anticipate and depend upon these funds. Functionally, however, Illinois currently has NO compensation law, because for over a year, the “stopgap” appropriation bills have not included funds for exonerees who have already been certified innocent and have received monetary awards from the Illinois Court of Claims.

Who are these people? They include my client Christopher Coleman, who spent 19 years in prison for a home invasion he did not commit. They include Daniel Andersen, who served more than 27 years in prison and then had to register as a sex offender before his exoneration of a murder he did not commit. Coleman and other exonerees are profiled in this Chicago Tribune article from last fall, describing the harm exonerees were suffering due to the budget impasse. Amazingly, nothing has changed since then other than that the list is longer and they are another year in debt.

Regardless of whether their wrongful convictions resulted from malice or negligence, these individuals were gravely harmed by the government and deserve redress. Had they been lottery winners, they would have received their winnings by now, as lottery payoffs have been funded even during the budget crisis. It is simply unacceptable that Illinois is still refusing to honor its obligations to persons who spent decades in prison for crimes they did not commit.

Governor Rauner, Illinois legislators – where is your conscience?

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Mother’s Day – what do you say?

rose-31411_960_720What do you say on Mother’s Day to a woman whose child has died, either by accident or at the hand of another?

What do you say on Mother’s Day to a woman wrongfully convicted of her own child’s murder?

What do you say on Mother’s Day to a woman behind bars who can’t be with her children?

What do you say on Mother’s Day to a woman incarcerated for years despite her innocence, who can no longer bear children after she is freed?

What do you say on Mother’s Day to a woman whose innocent son or daughter is languishing in prison?

I confess I don’t know what to say. My own life has been incredibly fortunate. Of the many wonderful things I have been lucky enough to experience, being a mother surely tops the list. I simply cannot imagine having that opportunity stolen from me.

All I can think of to say is, “Happy Mother’s Day.” To all the mothers separated from their children for reasons beyond their control, I still say to you, “Happy Mother’s Day.” My heart goes out to you and your children (living, no longer living, or never born), and may you find peace.

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Must a prosecutor disclose new evidence of innocence after conviction? Illinois ethics rules say yes.

I am embarrassed to say that until yesterday, when I read a Chicago Tribune story about a possible wrongful conviction in DeKalb County, I was unaware that the Illinois Rules of Professional Conduct now include the following new special duties of a prosecutor (Rule 3.8):

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further reasonable investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

In effect, the so-called “Brady rule,” requiring prosecutors to disclose exculpatory evidence to the defense before trial, now also applies after conviction under Illinois ethics rules. This is an extremely welcome development for those like myself who practice post-conviction innocence work, and for everyone concerned about criminal justice.

DeKalb County State’s Attorney Richard H. Schmack apparently takes Rule 3.8 very seriously. In an extraordinary 34-page filing in the case of Jack D. McCullough, convicted in 2012 of a 1957 murder of a young girl in Sycamore, Illinois (yes, you read those dates correctly – 55 years after the fact), Schmack describes in painstaking detail his six-month review of the case and the evidence that led him to conclude that McCollough was wrongfully convicted. Schmack points to a highly suggestive photo identification procedure conducted 53 years after the incident and maintains there were false statements in an affidavit for a search and arrest warrant as well as false testimony at McCullough’s trial. Further, and eerily reminiscent of the wrongful conviction of my former client Alan Beaman, Schmack agrees with the FBI’s 1957 conclusion that it was physically impossible for McCullough to have abducted the victim between 6:45 and 7:00 p.m. in Sycamore, based on a phone call McCullough made at 6:57 p.m. the same evening in Rockford, at least 34 miles from the scene.

Schmack states in the preamble to his factual report:

Rules 3.8(g) and 3.8(h) have only been in effect in Illinois for three months, so there is little precedent for a report such as this. The purpose and spirit of these new rules is obvious. They address with clarity the tragedy of wrongful convictions and provide a clear guide for prosecutors in evaluating a claim of actual innocence. I have concluded that a prosecutor is bound to consider personal knowledge and experience in life as well as the discovery in a case. The prosecutor is not a court, and is not bound by any prior determination of fact, if he or she knows that determination to be incorrect, wherever that knowledge originates. In short, the prosecutor can never leave his or her common sense out of the equation. The progress of a case from charging, through pre-trial, trial, appellate and post-judgment phases never lessens a prosecutor’s primary obligation to seek justice, rather than conviction.

Wow.  I couldn’t have said it better myself. Let’s hope that other Illinois prosecutors take note and are equally scrupulous about complying with their duties under Rule 3.8 – and that other states follow Illinois’s lead in imposing a continuing duty on prosecutors to ensure that the wrongfully convicted do not remain behind bars when new evidence of innocence emerges after trial.

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Illinois embraces eyewitness expert testimony

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Today’s landmark decision by the Illinois Supreme Court in People v. Lerma will contribute to greater accuracy and fairness in criminal trials. Previously, expert testimony about eyewitness identification was disfavored in Illinois, based largely on the Court’s previous decision in People v. Enis. Criminal court judges routinely denied defense requests to call eyewitness identification experts even in prosecutions based solely on eyewitness testimony.

In today’s Lerma opinionhowever, the Court reviewed the current social science research on eyewitness error and the leading decisions from other state courts, and concluded:

“[I]n the 25 years since Enis, we not only have seen that eyewitness identifications are not always as reliable as they appear, but we also have learned, from a scientific standpoint, why this is often the case. Accordingly, whereas Enis allowed for but expressed caution toward the developing research concerning eyewitness identifications, today we are able to recognize that such research is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony.”

Expert testimony is critical because many contributing factors to mistaken identifications are not known to the average person. For instance: (1) an eyewitness’s certainty does not necessarily correlate to accuracy; (2) cross-racial identifications are less accurate than same-race identifications; (3) the presence of a weapon causes a witness to focus on the weapon rather than the person, increasing the likelihood of a mistaken identification; (4) the stress of experiencing a crime makes it difficult to correctly identify the offender. These are but a few examples of principles that may be unfamiliar or counterintuitive to the average juror, but can be explained by an expert based on scientific research.

Truly, the Lerma decision is a game-changer for future Illinois criminal trials. I can attest to this from personal experience, having been devastated when a judge excluded an eyewitness expert from the trial of a client whom I wholeheartedly believed was innocent, but who had been identified in a questionable identification procedure.

Mr. Lerma was ably represented by Linda Olthoff of the Office of the State Appellate Defender. The Innocence Network, of which the Center on Wrongful Convictions is a member, filed an amicus brief written by a wonderful team of attorneys from Quarles & Brady.

It is a good day when the law catches up to science.

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Guest post about Jane Raley by Linus Chan (’02)

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My name is Linus Chan and I teach an immigration clinic at the University of Minnesota. Being a student at a law school clinic can often be a transformative experience. Over my career as a clinical teacher, I have had to often think back and wonder what it is that makes clinics special. What is it about clinics that makes the experience valuable and often transformative? There are many possible answers – from meeting and learning client stories, taking ownership over a real case, to exercising advocacy skills in a meaningful way. But an answer that doesn’t get talked about more – is the close, personal relationships we get to have with our clinic supervisors. In many ways our clinic supervisors are the first true “lawyers” we get to observe and often the lawyers that we end up trying to model ourselves after.

I became a clinical student in the Fall of 2000, and was lucky enough to be one of the first students that Jane Raley and Karen Daniel supervised. I didn’t know much about either one of them, but quickly learned what formidable lawyers they were. What a great duo they made! My time as a clinical student was transformative. Meeting clients, including conducting interviews, or reading over intake letters were all part of a meaningful experience. But my time in the clinic was transformative because of how much I got to know the wonderful advocates for the Center. Larry Marshall was this brilliant and passionate advocate who seemed to be able to persuade anyone of anything. Karen Daniel was intimidating in her intellect and her ability to understand difficult and complex issues. Rob Warden seemed like an uncle of the whole project, able to share insights that no one else had and history and stories that no one else would tell. I learned so much about being a lawyer just from being able to observe and interact with these wonderful advocates. But – when it came to Jane Raley, well it was my time with her that changed me the most.

Working with people that the law has failed can breed cynicism and pessimism. There is so much to be righteously angry about and so often as advocates we tend to be the unfortunate witnesses of pain, tragedy and injustice. And yet when I think back to one of my first templates of a passionate attorney – I think of Jane Raley and her seemingly endless well of energy. This field of work attracts passionate, compassionate and energetic people and Jane was no different. But Jane was different in a way that perhaps I didn’t appreciate as a student more, but do appreciate now. Jane was enthusiastic – about her work, about her clients and about her students. This enthusiasm was such a positive force. It was infectious not just to her students, but to her clients. Her enthusiasm has helped the wrongfully imprisoned to stay hopeful, helped struggling law students and has helped me to remember what a privilege it is do work in service of people. Of course Jane is more than a template or model advocate, and I do miss her. I miss the excitement in her voice, her relentless encouragement and how when she would get excited, her whole body would shake.

Linus Chan is currently a Visiting Associate Clinical Professor of Law at the University of Minnesota Law School, where he teaches a Detainee Rights Clinic in the Center for New Americans. He is a 2002 graduate of Northwestern University School of Law, and a Center on Wrongful Convictions clinic student for two years. This guest post was contributed on the occasion of the Wrongful Convictions Symposium in Honor of Jane Raley on November 12, 2015, which Professor Chan was unable to attend.

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