Public Act 096-0381
 
HB0869 Enrolled LRB096 09114 RLC 19258 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Capital Crimes Litigation Act is amended by
changing Sections 10 and 15 as follows:
 
    (725 ILCS 124/10)
    Sec. 10. Court appointed trial counsel; compensation and
expenses.
    (a) This Section applies only to compensation and expenses
of trial counsel appointed by the court as set forth in Section
5, other than public defenders, for the period after
arraignment and so long as the State's Attorney has not, at any
time, filed a certificate indicating he or she will not seek
the death penalty or stated on the record in open court that
the death penalty will not be sought.
    (a-5) Litigation budget.
        (1) In a case in which the State has filed a statement
    of intent to seek the death penalty, the court shall
    require appointed counsel, including those appointed in
    Cook County, after counsel has had adequate time to review
    the case and prior to engaging trial assistance, to submit
    a proposed estimated litigation budget for court approval,
    that will be subject to modification in light of facts and
    developments that emerge as the case proceeds. Case budgets
    should be submitted ex parte and filed and maintained under
    seal in order to protect the defendant's right to effective
    assistance of counsel, right not to incriminate him or
    herself and all applicable privileges. Case budgets shall
    be reviewed and approved by the judge assigned to try the
    case. As provided under subsection (c) of this Section,
    petitions for compensation shall be reviewed by both the
    trial judge and the presiding judge or the presiding
    judge's designee.
        (2) The litigation budget shall serve purposes
    comparable to those of private retainer agreements by
    confirming both the court's and the attorney's
    expectations regarding fees and expenses. Consideration
    should be given to employing an ex parte pretrial
    conference in order to facilitate reaching agreement on a
    litigation budget at the earliest opportunity.
        (3) The budget shall be incorporated into a sealed
    initial pretrial order that reflects the understandings of
    the court and counsel regarding all matters affecting
    counsel compensation and reimbursement and payments for
    investigative, expert and other services, including but
    not limited to the following matters:
            (A) The hourly rate at which counsel will be
        compensated;
            (B) The hourly rate at which private
        investigators, other than investigators employed by
        the Office of the State Appellate Defender, will be
        compensated; and
            (C) The best preliminary estimate that can be made
        of the cost of all services, including, but not limited
        to, counsel, expert, and investigative services, that
        are likely to be needed through the guilt and penalty
        phases of the trial. The court shall have discretion to
        require that budgets be prepared for shorter intervals
        of time.
        (4) Appointed counsel may obtain, subject to later
    review, investigative, expert or other services without
    prior authorization if necessary for an adequate defense.
    If such services are obtained, the presiding judge or the
    presiding judge's designee shall consider in an ex parte
    proceeding that timely procurement of necessary services
    could not await prior authorization. If an ex parte hearing
    is requested by defense counsel or deemed necessary by the
    trial judge prior to modifying a budget, the ex parte
    hearing shall be before the presiding judge or the
    presiding judge's designee. The judge may then authorize
    such services nunc pro tunc. If the presiding judge or the
    presiding judge's designee finds that the services were not
    reasonable, payment may be denied.
        (5) An approved budget shall guide counsel's use of
    time and resources by indicating the services for which
    compensation is authorized. The case budget shall be
    re-evaluated when justified by changed or unexpected
    circumstances and shall be modified by the court when
    reasonable and necessary for an adequate defense. If an ex
    parte hearing is requested by defense counsel or deemed
    necessary by the trial judge prior to modifying a budget,
    the ex parte hearing shall be before the presiding judge or
    the presiding judge's designee.
    (b) Appointed trial counsel shall be compensated upon
presentment and certification by the circuit court of a claim
for services detailing the date, activity, and time duration
for which compensation is sought. Compensation for appointed
trial counsel may be paid at a reasonable rate not to exceed
$125 per hour. The court shall not authorize payment of bills
that are not properly itemized. A request for payment shall be
presented under seal and reviewed ex parte with a court
reporter present.
    Beginning in 2001, every January 20, the statutory rate
prescribed in this subsection shall be automatically increased
or decreased, as applicable, by a percentage equal to the
percentage change in the consumer price index-u during the
preceding 12-month calendar year. "Consumer price index-u"
means the index published by the Bureau of Labor Statistics of
the United States Department of Labor that measures the average
change in prices of goods and services purchased by all urban
consumers, United States city average, all items, 1982-84=100.
The new rate resulting from each annual adjustment shall be
determined by the State Treasurer and made available to the
chief judge of each judicial circuit.
    (c) Appointed trial counsel may also petition the court for
certification of expenses for reasonable and necessary capital
litigation expenses including, but not limited to,
investigatory and other assistance, expert, forensic, and
other witnesses, and mitigation specialists. Each provider of
proposed services must specify the best preliminary estimate
that can be made in light of information received in the case
at that point, and the provider must sign this estimate under
the provisions of Section 1-109 of the Code of Civil Procedure.
A provider of proposed services must also specify (1) his or
her hourly rate; (2) the hourly rate of anyone else in his or
her employ for whom reimbursement is sought; and (3) the hourly
rate of any person or entity that may be subcontracted to
perform these services. Counsel may not petition for
certification of expenses that may have been provided or
compensated by the State Appellate Defender under item (c)(5)
of Section 10 of the State Appellate Defender Act. The
petitions shall be filed under seal and considered ex parte but
with a court reporter present for all ex parte conferences. If
the requests are submitted after services have been rendered,
the requests shall be supported by an invoice describing the
services rendered, the dates the services were performed and
the amount of time spent. These petitions shall be reviewed by
both the trial judge and the presiding judge of the circuit
court or the presiding judge's designee. The petitions and
orders shall be kept under seal and shall be exempt from
Freedom of Information requests until the conclusion of the
trial, even if the prosecution chooses not to pursue the death
penalty prior to trial or sentencing. If an ex parte hearing is
requested by defense counsel or deemed necessary by the trial
judge, the hearing shall be before the presiding judge or the
presiding judge's designee.
    (d) Appointed trial counsel shall petition the court for
certification of compensation and expenses under this Section
periodically during the course of counsel's representation.
The petitions shall be supported by itemized bills showing the
date, the amount of time spent, the work done and the total
being charged for each entry. The court shall not authorize
payment of bills that are not properly itemized. The court must
certify reasonable and necessary expenses of the petitioner for
travel and per diem (lodging, meals, and incidental expenses).
These expenses must be paid at the rate as promulgated by the
United States General Services Administration for these
expenses for the date and location in which they were incurred,
unless extraordinary reasons are shown for the difference. The
petitions shall be filed under seal and considered ex parte but
with a court reporter present for all ex parte conferences. The
petitions shall be reviewed by both the trial judge and the
presiding judge of the circuit court or the presiding judge's
designee. If an ex parte hearing is requested by defense
counsel or deemed necessary by the trial judge, the ex parte
hearing shall be before the presiding judge or the presiding
judge's designee. If the court determines that the compensation
and expenses should be paid from the Capital Litigation Trust
Fund, the court shall certify, on a form created by the State
Treasurer, that all or a designated portion of the amount
requested is reasonable, necessary, and appropriate for
payment from the Trust Fund. The form must also be signed by
lead trial counsel under the provisions of Section 1-109 of the
Code of Civil Procedure verifying that the amount requested is
reasonable, necessary, and appropriate. Bills submitted for
payment by any individual or entity seeking payment from the
Capital Litigation Trust Fund must also be accompanied by a
form created by the State Treasurer and signed by the
individual or responsible agent of the entity under the
provisions of Section 1-109 of the Code of Civil Procedure that
the amount requested is accurate and truthful and reflects time
spent or expenses incurred. Certification of compensation and
expenses by a court in any county other than Cook County shall
be delivered by the court to the State Treasurer and must be
paid by the State Treasurer directly from the Capital
Litigation Trust Fund if there are sufficient moneys in the
Trust Fund to pay the compensation and expenses. If the State
Treasurer finds within 14 days of his or her receipt of a
certification that the compensation and expenses to be paid are
unreasonable, unnecessary, or inappropriate, he or she may
return the certification to the court setting forth in detail
the objection or objections with a request for the court to
review the objection or objections before resubmitting the
certification. The State Treasurer must send the claimant a
copy of the objection or objections. The State Treasurer may
only seek a review of a specific objection once. The claimant
has 7 days from his or her receipt of the objections to file a
response with the court. With or without further hearing, the
court must promptly rule on the objections. The petitions and
orders shall be kept under seal and shall be exempt from
Freedom of Information requests until the conclusion of the
trial and appeal of the case, even if the prosecution chooses
not to pursue the death penalty prior to trial or sentencing.
Certification of compensation and expenses by a court in Cook
County shall be delivered by the court to the county treasurer
and paid by the county treasurer from moneys granted to the
county from the Capital Litigation Trust Fund.
(Source: P.A. 94-664, eff. 1-1-06.)
 
    (725 ILCS 124/15)
    Sec. 15. Capital Litigation Trust Fund.
    (a) The Capital Litigation Trust Fund is created as a
special fund in the State Treasury. The Trust Fund shall be
administered by the State Treasurer to provide moneys for the
appropriations to be made, grants to be awarded, and
compensation and expenses to be paid under this Act. All
interest earned from the investment or deposit of moneys
accumulated in the Trust Fund shall, under Section 4.1 of the
State Finance Act, be deposited into the Trust Fund.
    (b) Moneys deposited into the Trust Fund shall not be
considered general revenue of the State of Illinois.
    (c) Moneys deposited into the Trust Fund shall be used
exclusively for the purposes of providing funding for the
prosecution and defense of capital cases and for providing
funding for post-conviction proceedings in capital cases under
Article 122 of the Code of Criminal Procedure of 1963 and in
relation to petitions filed under Section 2-1401 of the Code of
Civil Procedure in relation to capital cases as provided in
this Act and shall not be appropriated, loaned, or in any
manner transferred to the General Revenue Fund of the State of
Illinois.
    (d) Every fiscal year the State Treasurer shall transfer
from the General Revenue Fund to the Capital Litigation Trust
Fund an amount equal to the full amount of moneys appropriated
by the General Assembly (both by original and supplemental
appropriation), less any unexpended balance from the previous
fiscal year, from the Capital Litigation Trust Fund for the
specific purpose of making funding available for the
prosecution and defense of capital cases and for the litigation
expenses associated with post-conviction proceedings in
capital cases under Article 122 of the Code of Criminal
Procedure of 1963 and in relation to petitions filed under
Section 2-1401 of the Code of Civil Procedure in relation to
capital cases. The Public Defender and State's Attorney in Cook
County, the State Appellate Defender, the State's Attorneys
Appellate Prosecutor, and the Attorney General shall make
annual requests for appropriations from the Trust Fund.
        (1) The Public Defender in Cook County shall request
    appropriations to the State Treasurer for expenses
    incurred by the Public Defender and for funding for private
    appointed defense counsel in Cook County.
        (2) The State's Attorney in Cook County shall request
    an appropriation to the State Treasurer for expenses
    incurred by the State's Attorney.
        (3) The State Appellate Defender shall request a direct
    appropriation from the Trust Fund for expenses incurred by
    the State Appellate Defender in providing assistance to
    trial attorneys under item (c)(5) of Section 10 of the
    State Appellate Defender Act and for expenses incurred by
    the State Appellate Defender in representing petitioners
    in capital cases in post-conviction proceedings under
    Article 122 of the Code of Criminal Procedure of 1963 and
    in relation to petitions filed under Section 2-1401 of the
    Code of Civil Procedure in relation to capital cases and
    for the representation of those petitioners by attorneys
    approved by or contracted with the State Appellate Defender
    and an appropriation to the State Treasurer for payments
    from the Trust Fund for the defense of cases in counties
    other than Cook County.
        (4) The State's Attorneys Appellate Prosecutor shall
    request a direct appropriation from the Trust Fund to pay
    expenses incurred by the State's Attorneys Appellate
    Prosecutor and an appropriation to the State Treasurer for
    payments from the Trust Fund for expenses incurred by
    State's Attorneys in counties other than Cook County.
        (5) The Attorney General shall request a direct
    appropriation from the Trust Fund to pay expenses incurred
    by the Attorney General in assisting the State's Attorneys
    in counties other than Cook County and to pay for expenses
    incurred by the Attorney General when the Attorney General
    is ordered by the presiding judge of the Criminal Division
    of the Circuit Court of Cook County to prosecute or
    supervise the prosecution of Cook County cases and for
    expenses incurred by the Attorney General in representing
    the State in post-conviction proceedings in capital cases
    under Article 122 of the Code of Criminal Procedure of 1963
    and in relation to petitions filed under Section 2-1401 of
    the Code of Civil Procedure in relation to capital cases.
    The Public Defender and State's Attorney in Cook County,
the State Appellate Defender, the State's Attorneys Appellate
Prosecutor, and the Attorney General may each request
supplemental appropriations from the Trust Fund during the
fiscal year.
    (e) Moneys in the Trust Fund shall be expended only as
follows:
        (1) To pay the State Treasurer's costs to administer
    the Trust Fund. The amount for this purpose may not exceed
    5% in any one fiscal year of the amount otherwise
    appropriated from the Trust Fund in the same fiscal year.
        (2) To pay the capital litigation expenses of trial
    defense and post-conviction proceedings in capital cases
    under Article 122 of the Code of Criminal Procedure of 1963
    and in relation to petitions filed under Section 2-1401 of
    the Code of Civil Procedure in relation to capital cases
    including, but not limited to, DNA testing, including DNA
    testing under Section 116-3 of the Code of Criminal
    Procedure of 1963, analysis, and expert testimony,
    investigatory and other assistance, expert, forensic, and
    other witnesses, and mitigation specialists, and grants
    and aid provided to public defenders, appellate defenders,
    and any attorney approved by or contracted with the State
    Appellate Defender representing petitioners in
    post-conviction proceedings in capital cases under Article
    122 of the Code of Criminal Procedure of 1963 and in
    relation to petitions filed under Section 2-1401 of the
    Code of Civil Procedure in relation to capital cases or
    assistance to attorneys who have been appointed by the
    court to represent defendants who are charged with capital
    crimes. Reasonable and necessary capital litigation
    expenses include travel and per diem (lodging, meals, and
    incidental expenses).
        (3) To pay the compensation of trial attorneys, other
    than public defenders or appellate defenders, who have been
    appointed by the court to represent defendants who are
    charged with capital crimes or attorneys approved by or
    contracted with the State Appellate Defender to represent
    petitioners in post-conviction proceedings in capital
    cases under Article 122 of the Code of Criminal Procedure
    of 1963 and in relation to petitions filed under Section
    2-1401 of the Code of Civil Procedure in relation to
    capital cases.
        (4) To provide State's Attorneys with funding for
    capital litigation expenses and for expenses of
    representing the State in post-conviction proceedings in
    capital cases under Article 122 of the Code of Criminal
    Procedure of 1963 and in relation to petitions filed under
    Section 2-1401 of the Code of Civil Procedure in relation
    to capital cases including, but not limited to,
    investigatory and other assistance and expert, forensic,
    and other witnesses necessary to prosecute capital cases.
    State's Attorneys in any county other than Cook County
    seeking funding for capital litigation expenses and for
    expenses of representing the State in post-conviction
    proceedings in capital cases under Article 122 of the Code
    of Criminal Procedure of 1963 and in relation to petitions
    filed under Section 2-1401 of the Code of Civil Procedure
    in relation to capital cases including, but not limited to,
    investigatory and other assistance and expert, forensic,
    or other witnesses under this Section may request that the
    State's Attorneys Appellate Prosecutor or the Attorney
    General, as the case may be, certify the expenses as
    reasonable, necessary, and appropriate for payment from
    the Trust Fund, on a form created by the State Treasurer.
    Upon certification of the expenses and delivery of the
    certification to the State Treasurer, the Treasurer shall
    pay the expenses directly from the Capital Litigation Trust
    Fund if there are sufficient moneys in the Trust Fund to
    pay the expenses.
        (5) To provide financial support through the Attorney
    General pursuant to the Attorney General Act for the
    several county State's Attorneys outside of Cook County,
    but shall not be used to increase personnel for the
    Attorney General's Office, except when the Attorney
    General is ordered by the presiding judge of the Criminal
    Division of the Circuit Court of Cook County to prosecute
    or supervise the prosecution of Cook County cases.
        (6) To provide financial support through the State's
    Attorneys Appellate Prosecutor pursuant to the State's
    Attorneys Appellate Prosecutor's Act for the several
    county State's Attorneys outside of Cook County, but shall
    not be used to increase personnel for the State's Attorneys
    Appellate Prosecutor.
        (7) To provide financial support to the State Appellate
    Defender pursuant to the State Appellate Defender Act.
    Moneys expended from the Trust Fund shall be in addition to
county funding for Public Defenders and State's Attorneys, and
shall not be used to supplant or reduce ordinary and customary
county funding.
    (f) Moneys in the Trust Fund shall be appropriated to the
State Appellate Defender, the State's Attorneys Appellate
Prosecutor, the Attorney General, and the State Treasurer. The
State Appellate Defender shall receive an appropriation from
the Trust Fund to enable it to provide assistance to appointed
defense counsel and attorneys approved by or contracted with
the State Appellate Defender to represent petitioners in
post-conviction proceedings in capital cases under Article 122
of the Code of Criminal Procedure of 1963 and in relation to
petitions filed under Section 2-1401 of the Code of Civil
Procedure in relation to capital cases throughout the State and
to Public Defenders in counties other than Cook. The State's
Attorneys Appellate Prosecutor and the Attorney General shall
receive appropriations from the Trust Fund to enable them to
provide assistance to State's Attorneys in counties other than
Cook County and when the Attorney General is ordered by the
presiding judge of the Criminal Division of the Circuit Court
of Cook County to prosecute or supervise the prosecution of
Cook County cases. Moneys shall be appropriated to the State
Treasurer to enable the Treasurer (i) to make grants to Cook
County, (ii) to pay the expenses of Public Defenders, the State
Appellate Defender, the Attorney General, the Office of the
State's Attorneys Appellate Prosecutor, and State's Attorneys
in counties other than Cook County, (iii) to pay the expenses
and compensation of appointed defense counsel and attorneys
approved by or contracted with the State Appellate Defender to
represent petitioners in post-conviction proceedings in
capital cases under Article 122 of the Code of Criminal
Procedure of 1963 and in relation to petitions filed under
Section 2-1401 of the Code of Civil Procedure in relation to
capital cases in counties other than Cook County, and (iv) to
pay the costs of administering the Trust Fund. All expenditures
and grants made from the Trust Fund shall be subject to audit
by the Auditor General.
    (g) For Cook County, grants from the Trust Fund shall be
made and administered as follows:
        (1) For each State fiscal year, the State's Attorney
    and Public Defender must each make a separate application
    to the State Treasurer for capital litigation grants.
        (2) The State Treasurer shall establish rules and
    procedures for grant applications. The rules shall require
    the Cook County Treasurer as the grant recipient to report
    on a periodic basis to the State Treasurer how much of the
    grant has been expended, how much of the grant is
    remaining, and the purposes for which the grant has been
    used. The rules may also require the Cook County Treasurer
    to certify on a periodic basis that expenditures of the
    funds have been made for expenses that are reasonable,
    necessary, and appropriate for payment from the Trust Fund.
        (3) The State Treasurer shall make the grants to the
    Cook County Treasurer as soon as possible after the
    beginning of the State fiscal year.
        (4) The State's Attorney or Public Defender may apply
    for supplemental grants during the fiscal year.
        (5) Grant moneys shall be paid to the Cook County
    Treasurer in block grants and held in separate accounts for
    the State's Attorney, the Public Defender, and court
    appointed defense counsel other than the Cook County Public
    Defender, respectively, for the designated fiscal year,
    and are not subject to county appropriation.
        (6) Expenditure of grant moneys under this subsection
    (g) is subject to audit by the Auditor General.
        (7) The Cook County Treasurer shall immediately make
    payment from the appropriate separate account in the county
    treasury for capital litigation expenses to the State's
    Attorney, Public Defender, or court appointed defense
    counsel other than the Public Defender, as the case may be,
    upon order of the State's Attorney, Public Defender or the
    court, respectively.
    (h) If a defendant in a capital case in Cook County is
represented by court appointed counsel other than the Cook
County Public Defender, the appointed counsel shall petition
the court for an order directing the Cook County Treasurer to
pay the court appointed counsel's reasonable and necessary
compensation and capital litigation expenses from grant moneys
provided from the Trust Fund. The petitions shall be supported
by itemized bills showing the date, the amount of time spent,
the work done and the total being charged for each entry. The
court shall not authorize payment of bills that are not
properly itemized. The petitions shall be filed under seal and
considered ex parte but with a court reporter present for all
ex parte conferences. The petitions shall be reviewed by both
the trial judge and the presiding judge of the circuit court or
the presiding judge's designee. The petitions and orders shall
be kept under seal and shall be exempt from Freedom of
Information requests until the conclusion of the trial and
appeal of the case, even if the prosecution chooses not to
pursue the death penalty prior to trial or sentencing. Orders
denying petitions for compensation or expenses are final.
Counsel may not petition for expenses that may have been
provided or compensated by the State Appellate Defender under
item (c)(5) of Section 10 of the State Appellate Defender Act.
    (i) In counties other than Cook County, and when the
Attorney General is ordered by the presiding judge of the
Criminal Division of the Circuit Court of Cook County to
prosecute or supervise the prosecution of Cook County cases,
and excluding capital litigation expenses or services that may
have been provided by the State Appellate Defender under item
(c)(5) of Section 10 of the State Appellate Defender Act:
        (1) Upon certification by the circuit court, on a form
    created by the State Treasurer, that all or a portion of
    the expenses are reasonable, necessary, and appropriate
    for payment from the Trust Fund and the court's delivery of
    the certification to the Treasurer, the Treasurer shall pay
    the certified expenses of Public Defenders and the State
    Appellate Defender from the money appropriated to the
    Treasurer for capital litigation expenses of Public
    Defenders and post-conviction proceeding expenses in
    capital cases of the State Appellate Defender and expenses
    in relation to petitions filed under Section 2-1401 of the
    Code of Civil Procedure in relation to capital cases in any
    county other than Cook County, if there are sufficient
    moneys in the Trust Fund to pay the expenses.
        (2) If a defendant in a capital case is represented by
    court appointed counsel other than the Public Defender, the
    appointed counsel shall petition the court to certify
    compensation and capital litigation expenses including,
    but not limited to, investigatory and other assistance,
    expert, forensic, and other witnesses, and mitigation
    specialists as reasonable, necessary, and appropriate for
    payment from the Trust Fund. If a petitioner in a capital
    case who has filed a petition for post-conviction relief
    under Article 122 of the Code of Criminal Procedure of 1963
    or a petition under Section 2-1401 of the Code of Civil
    Procedure in relation to capital cases is represented by an
    attorney approved by or contracted with the State Appellate
    Defender other than the State Appellate Defender, that
    attorney shall petition the court to certify compensation
    and litigation expenses of post-conviction proceedings
    under Article 122 of the Code of Criminal Procedure of 1963
    or in relation to petitions filed under Section 2-1401 of
    the Code of Civil Procedure in relation to capital cases.
    Upon certification on a form created by the State Treasurer
    of all or a portion of the compensation and expenses
    certified as reasonable, necessary, and appropriate for
    payment from the Trust Fund and the court's delivery of the
    certification to the Treasurer, the State Treasurer shall
    pay the certified compensation and expenses from the money
    appropriated to the Treasurer for that purpose, if there
    are sufficient moneys in the Trust Fund to make those
    payments.
        (3) A petition for capital litigation expenses or
    post-conviction proceeding expenses or expenses incurred
    in filing a petition under Section 2-1401 of the Code of
    Civil Procedure in relation to capital cases under this
    subsection shall be considered under seal and reviewed ex
    parte with a court reporter present. Orders denying
    petitions for compensation or expenses are final.
    (j) If the Trust Fund is discontinued or dissolved by an
Act of the General Assembly or by operation of law, any balance
remaining in the Trust Fund shall be returned to the General
Revenue Fund after deduction of administrative costs, any other
provision of this Act to the contrary notwithstanding.
(Source: P.A. 93-127, eff. 1-1-04; 93-605, eff. 11-19-03;
93-972, eff. 8-20-04; 94-664, eff. 1-1-06.)