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1 | AN ACT concerning wrongful prosecution.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||||||||||||||||||||
5 | Wrongful Prosecution Commission Act. | ||||||||||||||||||||||||
6 | Section 5. Definitions. As used in this Act: | ||||||||||||||||||||||||
7 | "Claim of wrongful prosecution" means a claim by or on | ||||||||||||||||||||||||
8 | behalf of a living person convicted of a crime in a county of | ||||||||||||||||||||||||
9 | more than 3,000,000 inhabitants asserting that the person was | ||||||||||||||||||||||||
10 | falsely incriminated for the crime and there is credible | ||||||||||||||||||||||||
11 | evidence related to allegations of the use of false evidence to | ||||||||||||||||||||||||
12 | obtain the conviction. | ||||||||||||||||||||||||
13 | "Commission" means the Wrongful Prosecution Commission | ||||||||||||||||||||||||
14 | established by this Act. | ||||||||||||||||||||||||
15 | "Convicted person" means the person making a claim of | ||||||||||||||||||||||||
16 | wrongful prosecution under this Act. | ||||||||||||||||||||||||
17 | "Director" means the Director of the Wrongful Prosecution | ||||||||||||||||||||||||
18 | Commission. | ||||||||||||||||||||||||
19 | "Victim" means the victim of the crime, or if the
victim of | ||||||||||||||||||||||||
20 | the crime is deceased, the parent, spouse, child, or sibling of | ||||||||||||||||||||||||
21 | the deceased victim. | ||||||||||||||||||||||||
22 | Section 10. Purpose of Act. This Act establishes an
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1 | extraordinary procedure to investigate and determine factual
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2 | claims of wrongful prosecution related to allegations of | ||||||
3 | wrongful prosecution that shall
require an individual to | ||||||
4 | voluntarily waive rights and
privileges as described in this | ||||||
5 | Act.
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6 | Section 15. Commission established. | ||||||
7 | (a) The Wrongful Prosecution Commission is established as | ||||||
8 | an independent commission under the Illinois Human Rights | ||||||
9 | Commission for
administrative purposes. | ||||||
10 | (b) The Illinois Human Rights Commission shall
provide | ||||||
11 | administrative support to the Commission as needed. The
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12 | Executive Director of the Illinois Human Rights Commission | ||||||
13 | shall not reduce or modify the budget of the Commission or use
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14 | funds appropriated to the Commission without the approval of
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15 | the Commission.
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16 | Section 20. Membership; chair; meetings; quorum. | ||||||
17 | (a) The Commission shall consist of 8 voting members as
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18 | follows: | ||||||
19 | (1) One shall be a retired Circuit Court Judge.
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20 | (2) One shall be a former prosecuting attorney. | ||||||
21 | (3) One shall be a law school professor. | ||||||
22 | (4) One shall be engaged in the practice of criminal
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23 | defense law. | ||||||
24 | (5) Three shall be members of the public who are not
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1 | attorneys and who are not officers or employees of the
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2 | Judicial branch. | ||||||
3 | (6) One shall be a former public defender. | ||||||
4 | The members of the Commission shall be appointed by the | ||||||
5 | Governor, with the advice and consent of the Senate. Members | ||||||
6 | may be reappointed for additional terms, as provided under | ||||||
7 | Section 25. In making the appointments, the Governor shall make | ||||||
8 | a good faith effort to appoint members
with different | ||||||
9 | perspectives of the justice system. The
Governor shall also | ||||||
10 | consider geographical
location, gender, and racial diversity | ||||||
11 | in making the
appointments. | ||||||
12 | (b) In the event of scheduling
conflicts, conflicts of | ||||||
13 | interest, disability, or other
disqualification arising in a | ||||||
14 | particular case, the Governor shall appoint
alternate | ||||||
15 | Commission members for the Commission members he or
she has | ||||||
16 | appointed to serve. If an alternate member is called upon to | ||||||
17 | serve, the alternate member shall vote in the place of and | ||||||
18 | otherwise exercise the same powers as the member which he or | ||||||
19 | she is replacing. The alternate
member shall have the same | ||||||
20 | qualifications for appointment as
the original member.
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21 | (c) The retired judge who is appointed as a member under | ||||||
22 | subsection
(a) shall serve as Chair of the Commission. The | ||||||
23 | Commission
shall have its initial meeting no later than one | ||||||
24 | month after the appointment of a quorum of members of the | ||||||
25 | Commission,
at the call of the Chair. The Commission shall meet | ||||||
26 | a minimum
of once every 6 months and may meet more often at the |
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1 | call
of the Chair. The Commission shall meet at such time and | ||||||
2 | place
as designated by the Chair, in accordance with the | ||||||
3 | provisions of the Open Meetings Act. Notice of the meetings | ||||||
4 | shall be
given at such time and manner as provided by the rules | ||||||
5 | of the
Commission, in accordance with the provisions of the | ||||||
6 | Open Meetings Act. A majority of the voting members shall | ||||||
7 | constitute a
quorum. All Commission votes shall be by majority | ||||||
8 | vote of the voting members appointed.
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9 | Section 25. Terms of members; compensation; expenses. | ||||||
10 | (a) Of the initial members, the appointments under clauses | ||||||
11 | (a)(3) and (a)(6) of Section 20 shall be for
one-year terms, | ||||||
12 | the appointments under clauses (a)(1), (a)(2), and (a)(4) of | ||||||
13 | Section 20 shall be for 2-year terms, and the
appointments | ||||||
14 | under clause (a)(5) of Section 20 shall be for 3-year terms. | ||||||
15 | Thereafter, all terms
shall be for 3 years. Members of the | ||||||
16 | Commission shall serve no
more than 2 consecutive 3-year terms | ||||||
17 | plus any initial term of
less than 3 years. Except as otherwise | ||||||
18 | provided by this Act, all
terms of members shall begin on | ||||||
19 | January 1 and end on December
31.
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20 | A member serving by virtue of elective or appointive office
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21 | may serve only so long as the member holds the
respective | ||||||
22 | office. The Chief Judge of the Cook County Circuit
Court may | ||||||
23 | remove members for good cause shown. Vacancies occurring
before | ||||||
24 | the expiration of a term shall be filled in the manner
provided | ||||||
25 | for the members first appointed.
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1 | (b) The Commission members shall receive no salary for
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2 | serving, but may be reimbursed for reasonable expenses incurred | ||||||
3 | as a result of their duties as members of the Commission from | ||||||
4 | funds appropriated by the General Assembly for that purpose or | ||||||
5 | from funds obtained from sources other than the General | ||||||
6 | Assembly. | ||||||
7 | Section 30. Director and other staff. The Commission shall
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8 | employ a Director. The Director shall be an attorney licensed
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9 | to practice in Illinois at the time of appointment and at all
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10 | times during service as Director. The Director shall assist the
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11 | Commission in developing rules and standards for cases accepted
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12 | for review, coordinate investigation of cases accepted for
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13 | review, maintain records for all case investigations, prepare
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14 | reports outlining Commission investigations and
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15 | recommendations to the trial court, and apply for and accept on
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16 | behalf of the Commission any funds that may become available
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17 | from government grants, private gifts, donations, or bequests
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18 | from any source. | ||||||
19 | Subject to the approval of the Chair, the Director shall
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20 | employ such other staff and shall contract for services as is
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21 | necessary to assist the Commission in the performance of its
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22 | duties and as funds permit.
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23 | The Commission may meet in an area provided by the
Illinois | ||||||
24 | Human Rights Commission or any other State agency. The
Illinois | ||||||
25 | Human Rights Commission shall provide, directly or through any |
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1 | other State agency,
office space for the Commission and the | ||||||
2 | Commission staff.
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3 | Section 35. Duties. The Commission shall have the | ||||||
4 | following
duties and powers: | ||||||
5 | (1) To establish the criteria and screening process to
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6 | be used to determine which cases shall be accepted for
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7 | review.
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8 | (2) To conduct inquiries into claims of wrongful | ||||||
9 | prosecution. | ||||||
10 | (3) To coordinate the investigation of cases accepted
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11 | for review. | ||||||
12 | (4) To maintain records for all case investigations. | ||||||
13 | (5) To prepare written reports outlining Commission
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14 | investigations and recommendations to the trial court at
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15 | the completion of each inquiry. | ||||||
16 | (6) To apply for and accept any funds that may become
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17 | available for the Commission's work from government
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18 | grants, private gifts, donations, or bequests from any
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19 | source.
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20 | Section 40. Claims of wrongful prosecution; waiver of | ||||||
21 | convicted person's
procedural safeguards and privileges; | ||||||
22 | formal inquiry;
notification of the crime victim.
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23 | (a) A claim of wrongful prosecution may be referred to the | ||||||
24 | Commission by
any court, person, or agency. The Commission |
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1 | shall not consider
a claim of wrongful prosecution if the | ||||||
2 | convicted person is deceased. The
determination of whether to | ||||||
3 | grant a formal inquiry regarding
any other claim of wrongful | ||||||
4 | prosecution is in the discretion of the
Commission. The | ||||||
5 | Commission may informally screen and dismiss a
case summarily | ||||||
6 | at its discretion. | ||||||
7 | (b) No formal inquiry into a claim of wrongful prosecution | ||||||
8 | shall be made
by the Commission unless the Director or the | ||||||
9 | Director's
designee first obtains a signed agreement from the | ||||||
10 | convicted
person in which the convicted person waives his or | ||||||
11 | her
procedural safeguards and privileges, including, but not | ||||||
12 | limited to, the right against self-incrimination under the | ||||||
13 | United States Constitution and the Constitution of the State of | ||||||
14 | Illinois, agrees to cooperate with
the Commission, and agrees | ||||||
15 | to provide full disclosure regarding
inquiry requirements of | ||||||
16 | the Commission. The waiver under this
subsection does not apply | ||||||
17 | to matters unrelated to a convicted
person's claim of wrongful | ||||||
18 | prosecution. The convicted person has the
right to advice of | ||||||
19 | counsel prior to the execution of the
agreement and, if a | ||||||
20 | formal inquiry is granted, throughout the
formal inquiry. If | ||||||
21 | counsel represents the convicted person,
then the convicted | ||||||
22 | person's counsel must be present at the
signing of the | ||||||
23 | agreement. If counsel does not represent the
convicted person, | ||||||
24 | the Commission Chair shall determine the
convicted person's | ||||||
25 | indigency status and, if appropriate, enter
an order for the | ||||||
26 | appointment of counsel for the purpose of
advising on the |
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1 | agreement. | ||||||
2 | (c) If a formal inquiry regarding a claim of wrongful | ||||||
3 | prosecution is
granted, the Director shall use all due | ||||||
4 | diligence to notify the
victim in the case and explain the | ||||||
5 | inquiry process. The
Commission shall give the victim notice | ||||||
6 | that the victim has the
right to present his or her views and | ||||||
7 | concerns throughout the
Commission's investigation. | ||||||
8 | (d) The Commission may use any measure provided in the Code
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9 | of Civil Procedure and the Code of Criminal Procedure of 1963
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10 | to obtain information necessary to its inquiry. The Commission
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11 | may also do any of the following: issue subpoenas or other | ||||||
12 | process to compel the
attendance of witnesses and the | ||||||
13 | production of evidence;
administer oaths; petition the Circuit | ||||||
14 | Court of Cook County or
of the original jurisdiction for | ||||||
15 | enforcement of process or for
other relief; and prescribe its | ||||||
16 | own rules of procedure. All
challenges with regard to the | ||||||
17 | Commission's authority or the
Commission's access to evidence, | ||||||
18 | including
any in camera review, shall be heard by the Circuit | ||||||
19 | Court of Cook County.
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20 | (e) While performing duties for the Commission, the
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21 | Director or the Director's designee may serve subpoenas or
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22 | other process issued by the Commission throughout the State in
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23 | the same manner and with the same effect as an officer
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24 | authorized to serve process under the laws of this State.
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25 | (f) All State discovery and disclosure statutes in effect
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26 | at the time of formal inquiry shall be enforceable as if the
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1 | convicted person were currently being tried for the charge for
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2 | which the convicted person is claiming wrongful prosecution.
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3 | (g) If, at any point during an inquiry, the convicted
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4 | person refuses to comply with requests of the Commission or is
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5 | otherwise deemed to be uncooperative by the Commission, the
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6 | Commission shall discontinue the inquiry.
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7 | Section 45. Commission proceedings. | ||||||
8 | (a) At the completion of a formal inquiry, all relevant
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9 | evidence shall be presented to the full Commission. As part of
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10 | its proceedings, the Commission may conduct hearings.
The | ||||||
11 | determination as to whether to conduct hearings is
solely in | ||||||
12 | the discretion of the Commission. Any hearing
held in | ||||||
13 | accordance with this Section shall be a public hearing and | ||||||
14 | shall be held subject to the
Commission's rules of operation | ||||||
15 | and
conducted pursuant to the Open Meetings Act. | ||||||
16 | (b) The Director shall use all due diligence to notify the
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17 | victim at least 30 days prior to any proceedings of the full
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18 | Commission held in regard to the victim's case. The Commission
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19 | shall notify the victim that the victim is permitted to attend
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20 | proceedings otherwise closed to the public, subject to any
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21 | limitations imposed by this Act, and
subject to subdivision | ||||||
22 | (c)(14) of Section 2 of the Open Meetings Act. If the victim | ||||||
23 | plans to attend
proceedings otherwise closed to the public, the | ||||||
24 | victim shall
notify the Commission at least 10 days in advance | ||||||
25 | of the
proceedings of his or her intent to attend. The |
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1 | Commission may close any portion of the
proceedings to the | ||||||
2 | victim if the victim is to testify and the Commission | ||||||
3 | determines that the victim's testimony would be materially | ||||||
4 | affected by the victim hearing other testimony at the | ||||||
5 | proceeding. | ||||||
6 | (c) After hearing the evidence, the full Commission shall
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7 | vote to establish further case disposition as provided by this
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8 | subsection. All 8 voting members of the Commission shall
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9 | participate in that vote.
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10 | If 5 or more of the 8 voting members of the Commission
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11 | conclude by a preponderance of the evidence that there is | ||||||
12 | sufficient evidence of wrongful prosecution to merit
judicial | ||||||
13 | review, the case shall be referred to the Chief Judge
of the | ||||||
14 | Circuit Court of Cook County by filing with the clerk of
court | ||||||
15 | the opinion of the Commission with supporting findings of
fact, | ||||||
16 | as well as the record in support of the opinion, with
service | ||||||
17 | on the State's Attorney in non-capital cases and
service on | ||||||
18 | both the State's Attorney and Attorney General in
capital | ||||||
19 | cases.
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20 | If less than 5 of the 8 voting members of the Commission
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21 | conclude by a preponderance of the evidence that there is | ||||||
22 | sufficient evidence of wrongful prosecution to merit
judicial | ||||||
23 | review, the Commission shall conclude there is
insufficient | ||||||
24 | evidence of wrongful prosecution to merit judicial review. The
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25 | Commission shall document that opinion, along with supporting
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26 | findings of fact, and file those documents and supporting
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1 | materials with the court clerk in the circuit of original
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2 | jurisdiction, with a copy to the State's Attorney and the chief
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3 | judge.
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4 | The Director of the Commission shall use all due diligence
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5 | to immediately notify the victim of the Commission's conclusion
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6 | in a case. | ||||||
7 | (d) Evidence of criminal acts, professional misconduct, or
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8 | other wrongdoing disclosed through formal inquiry or
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9 | Commission proceedings shall be referred to the appropriate
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10 | authority. Evidence favorable to the convicted person
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11 | disclosed through formal inquiry or Commission proceedings
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12 | shall be disclosed to the convicted person and the convicted
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13 | person's counsel, if the convicted person has counsel. The | ||||||
14 | Commission shall have the discretion to refer its findings, | ||||||
15 | together with the supporting record and evidence, to such other | ||||||
16 | parties or entities as the Commission in its discretion deems | ||||||
17 | appropriate. | ||||||
18 | (e) All proceedings of the Commission shall be recorded and
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19 | transcribed as part of the record. All Commission member votes
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20 | shall be recorded in the record. All records of
the Commission | ||||||
21 | shall be confidential until the proceedings before the | ||||||
22 | Commission are concluded and a final decision is made by the | ||||||
23 | Commission.
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24 | Section 50. Post-commission judicial review. | ||||||
25 | (a) If the Commission concludes there is sufficient
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1 | evidence of wrongful prosecution to merit judicial review, the | ||||||
2 | Chair of the
Commission shall request the Chief Judge of the | ||||||
3 | Circuit Court
of Cook County to assign the case to a trial | ||||||
4 | judge for
consideration. The court may receive proof by | ||||||
5 | affidavits,
depositions, oral testimony, or other evidence. In | ||||||
6 | its
discretion, the court may order the petitioner brought | ||||||
7 | before
the court for the hearing. Notwithstanding the status of | ||||||
8 | any other postconviction proceedings relating to the | ||||||
9 | petitioner, if the court finds in favor of the
petitioner, it | ||||||
10 | shall enter an appropriate order with respect to
the judgment | ||||||
11 | or sentence in the former proceedings and such
supplementary | ||||||
12 | orders as to rearraignment, retrial, custody,
bail or | ||||||
13 | discharge, or for such relief as may be granted under a | ||||||
14 | petition for a certificate of innocence, as may be necessary | ||||||
15 | and proper. | ||||||
16 | (b) The State's Attorney or the State's Attorney's
designee | ||||||
17 | shall represent the State at the hearing before the
assigned | ||||||
18 | judge.
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19 | Section 55. Further review of decision by
Commission; | ||||||
20 | postconviction relief.
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21 | (a) Unless otherwise authorized by this Act, the decision
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22 | of the Commission is final and subject to review under the | ||||||
23 | Administrative Review Law, and shall be overturned only if the | ||||||
24 | court finds that the decision is against the manifest weight of | ||||||
25 | the evidence. |
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1 | (b) A claim of wrongful prosecution brought before the | ||||||
2 | Commission
shall not adversely affect the convicted person's | ||||||
3 | right to
other postconviction relief.
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4 | Section 60. Report. Beginning January 1, 2018, and annually
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5 | thereafter, the Wrongful Prosecution Commission
shall report | ||||||
6 | on its activities to the General Assembly and the
Governor. The | ||||||
7 | report may contain recommendations of any needed
legislative | ||||||
8 | changes related to the activities of the
Commission. The report | ||||||
9 | shall recommend the funding needed by
the Commission, the | ||||||
10 | State's Attorneys, and the Department of
State Police in order | ||||||
11 | to meet their responsibilities under this
Act. Recommendations | ||||||
12 | concerning the State's Attorneys or the
Department of State | ||||||
13 | Police shall be made only after
consultations with the Illinois | ||||||
14 | State's Attorneys Association, the Department of State Police,
| ||||||
15 | and the Attorney General.
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16 | Section 65. Appointment period. The initial members of the | ||||||
17 | Wrongful Prosecution Commission shall be appointed not later | ||||||
18 | than
3 months after the effective date of this Act. No claims | ||||||
19 | of wrongful prosecution may be filed with the
Commission until | ||||||
20 | a quorum of members have been appointed.
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21 | Section 70. Filing of claims. This Act applies to claims of | ||||||
22 | wrongful prosecution filed not later than 5 years after the | ||||||
23 | effective date of this Act.
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1 | Section 75. Repeal. This Act is repealed 10 years after the | ||||||
2 | effective date of this Act.
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3 | Section 99. Effective date. This Act takes effect upon | ||||||
4 | becoming law.
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