Loss of fund raises fears of wrongful convictions
SPRINGFIELD -- Illinois' abolition of the death penalty could have a boomerang effect on some defendants: more innocent people might be convicted of murder.
Gov. Pat Quinn's signature on the abolition bill threw into limbo murder cases in which attorneys previously had access to the Capital Litigation Trust Fund, which will cease to exist at the end of the year.
Legislation to create a replacement fund to ensure that defense attorneys had access to the same resources as prosecutors never made it to a vote earlier this year. The reason is familiar - there's no money.
As a result, the burden has fallen to county governments, many of which are as fiscally strapped as the state.
John Hanlon, legal director for the DNA post-conviction program of the Downstate Illinois Innocence Project at the University of Illinois Springfield, said prosecutors, even in small counties, have access to help from the state attorney general's office and appellate prosecutor's office, and Illinois State Police investigators.
Defense attorneys do not, he said.
"For a big-ticket case now, a defendant will have one lawyer and whatever resources the county can pay for," Hanlon said. "There is less staff on the defense side, and there are likely to be more wrongful convictions.
"That's a concern everybody has," he said.
Citing the voluminous material compiled in the murders of five members of the Rick and Ruth Gee family in Logan County as an example, Hanlon said the paper, CDs and DVDs generated so far are "taller than me."
"How does one attorney get through all of this?" he said. "The possibility of missing something is really substantial."
Flawed system
The Capital Litigation Trust Fund was established in 2000 in response to mounting evidence that the state's capital trial system was terribly flawed. Prior to a moratorium on executions in 2000, 13 death-row inmates were exonerated and five were found innocent. After the moratorium, six more death-row inmates were exonerated.
Over the past 10 years, the fund has paid out $30.3 million in Illinois counties other than Cook to ensure adequate defenses in capital cases, which cost an average of $500,000-plus when they go to trial.
The separate cases of brothers Christopher Harris and Jason Harris, who are charged with murdering Rick and Ruth Gee of Beason and three of their children in September 2009, are examples of where the fund's demise has left the future of the brothers' defense unsettled.
The co-counsel in the Jason Harris defense team withdrew from the case after it was decertified as a capital case.
Springfield attorney Jay Elmore, who along with co-counsel John Rogers of St. Louis represents Christopher Harris, is keeping Christopher Harris' defense team together, but perhaps only for now.
"I might not be able to stay on it," Elmore said. "Can the county even support you now? They're in dire straits in Lincoln."
230 murder cases
The Capital Litigation Trust Fund's purpose was to allow private defense counsel, prosecutors and public defenders to be paid for the expenses of a capital trial, including the hiring of investigators, forensic testing, expert witnesses and the like. The fund covers all counties in the state, other than Cook, which has its own fund.
The downstate fund typically has paid into 25 to 30 cases a year in the 101 counties other than Cook and has been used in 230 cases since its inception, said Catie Sheehan, spokeswoman for the state treasurer's office, which administers the fund.
Each case that has gone from arraignment through trial and sentencing has cost an average of $500,000 to $700,000, she said.
The deadline to submit bills for former death penalty cases that are still pending was Aug. 31. The treasurer's office expects there to be about $5.4 million - including some money from fiscal 2010, money that had been requested for 2012 and money from the Cook County fund - left at the end of the year.
Any money left will be returned to the treasurer's office, then go into the Death Penalty Abolition Fund. That money will be used by the Illinois Criminal Justice Information Authority topay for services for families of homicide victims and for law enforcement training.
In 2011, the legislature appropriated $7.7 million for the Cook County fund, $5 million for use in the other counties, and $450,000 for administration. Those appropriations have grown over the life of the fund.
"The state decided that these cases were so important that we wanted to do them right," Hanlon said. "Doing right meant having substantial resources, hiring experts - for both sides. It's just leveling the playing field."
'I'm in limbo'
In Logan County, Elmore said it took the state 24 months to complete testing that defense attorneys must now review.
"If you took every file in my office, all of them together are only half the volume of the Harris case," he said, which consists of 11,600 pages of reports, investigative materials, etc. That doesn't include 2,000 to 5,000 additional pages of interview transcripts and more than 200 DVDs.
"It's probably a three-attorney case," Elmore said. "It's not a one-attorney case."
Elmore said in June that the case couldn't realistically come to trial for another 24 months.
Although all the defense's expenses have been paid to date, Elmore is worried about costs in the future.
"It's a mess," he said. "I'm in limbo right now."
Logan County is exploring its own revenue sources to pay for the Harris trials, said Jonathan Wright, the first assistant state's attorney who is prosecuting the cases along with a special prosecutor.
"We've tried to reach out to the state to try and find state revenue resources," he said. "So far, we haven't been successful."
"You try to do right and not leave those people hanging," Elmore said. "But it can ruin your practice. You're shut down for three or four months."
Elmore also was removed as second chair in a LaSalle County murder case in July after the death penalty was abolished. That left defendant Keith Mackowiak with a single attorney.
Innocent at risk
Bill Clutter, a Springfield-based private investigator who has worked on more than 20 capital cases, agreed that the real risk of not having the resources provided by the Capital Litigation Fund is the risk of an innocent person being convicted.
He cited the pending case of Christopher Vaughn, accused in Will County of fatally shooting his wife and three school-age children in June 2007.
"There are issues of actual innocence in that case," said Clutter, who was involved in the defense investigation. "We learned from state's forensic pathologist that (Christopher Vaughn's wife) Kimberly Vaughn's wounds were consistent with self-inflicted gunshot wounds. And a state policeman was removed from the case because he questioned the state's theory."
But in May, Rogers and Gerald Kielian of Joliet withdrew as Vaughn's court-appointed attorneys. Vaughn now is represented by the Will County public defender's office.
"We have absolutely no source of funding for Mr. Vaughn," Kielian told the judge.
"The problem with the Joliet case is that it is so dependent on the retention of expert witnesses," Clutter said. "Counties are ill-equipped to fund these kinds of cases."
Hanlon said former death penalty cases are typically "very, very voluminous."
"The amount of work is incredible," he said. "With fewer personnel to review it, it simply is going to take fewer people longer," he said. "If someone is going to have to start all over? I can't imagine how long that is going to take."
No vote on bill
Clutter thinks the General Assembly needs to consider a statewide system that provides money to public defenders. He said the Rural Defense Fund, a program made possible by a federal grant at the beginning of the last decade, provided similar resources with controls on spending. But when the grant dried up in 2006, so did the program.
Clutter pointed out another case in which he was involved, the murder of Brian Bobb in Logan County in 2002.
Royce D. Sykes had been charged with seven counts of murder, but the state dropped the charges based on evidence uncovered by the defense.
"That was all made possible by having the resources to investigate the case through the Rural Defense Fund," Clutter said.
State Rep. Bill Mitchell, R-Forsyth, introduced a bill in February that would have created a First Degree Murder Litigation Trust Fund to replace the current fund for capital cases. But the bill never made it to a vote.
"I don't know how the problem is going to be solved," said Mitchell.
Part of Logan County is in Mitchell's district, as is part of DeWitt County, where in 2003, Amanda Hamm and her boyfriend, Maurice Lagrone, were charged with murdering her three children. More than $2.2 million was spent from the Capital Litigation Fund in those cases.
"Logan County has about 30,000 people, and this could bankrupt the county," he said. "The problem is, there's just no money - at the state level or elsewhere."
Chris Dettro can be reached at (217) 788-1510.
Former death penalty cases
Pending former death penalty cases that have been affected by the demise of the Capital Litigation Trust Fund include:
* Brothers Christopher Harris and Jason Harris in Logan County. The Harris brothers, who are being tried separately and therefore had different sets of attorneys, are accused of murdering Rick and Ruth Gee of Beason and three of their children in the Gee home on Sept. 21, 2009. They also are charged with the attempted murder of a fourth child, who was 3 at the time of the murders.
Christopher Harris is the ex-husband of another of the Gee children.
* Christopher Vaughn in Will County. Vaughn is accused of murdering his wife, Kimberly, 34, and children Abigayle, 12, Cassandra, 11, and Blake, 8, in June 2007 along Interstate 55.
The family lived in Oswego and Vaughn worked as a private investigator. The Vaughns were on their way to a Springfield water park when the shootings occurred.
* Keith Mackowiak in LaSalle County. He is accused of killing an elderly Seneca couple, Aloysius and Catherine Twardowski, on July 11, 2007, during a burglary attempt.
*Theddias LeSure of Montgomery is accused in Kendall County of setting a fire that killed his cousin, Maurice Vaughn, and his brother, Matthew LeSure, in June 2009. He is charged with murder, attempted murder and arson.