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EXECUTIVE SUMMARY The attached report includes the findings and recommendations of the Special Supreme Court Committee on Capital Cases. The committee’s recommendations for improving capital trials address five issues: 1) attorney qualifications; 2) counsel for indigent defendants; 3) discovery procedures; 4) trial administration; and 5) judicial training. I. Capital Litigation Trial Bar The committee found that the most important and effective means of brining about positive improvement in capital trials would be the establishment of minimum training and experience standards for the attorneys who try those cases. As a result, the committee is recommending the creation of a capital litigation trial bar with specific experience and training qualifications for admission. All attorneys, except for the Attorney General and the state’s attorney in the county of venue, would be required to be admitted to the capital litigation trial bar before appearing in a capital case. The committee is urging the adoption of this recommendation based on the unanimous finding and belief of committee members that reasonable minimum standards, consistently applied as a condition of trial bar admission, are the only way to achieve significant, system-wide improvement in the quality of advocacy in capital trials. II. Counsel for Indigent Defendants The committee is recommending the appointment of two attorneys from the capital litigation trial bar for indigent capital defendants. This recommendation is consistent with the recently enacted Capital Crimes Litigation Act (P.A. 91-589, effective January 1, 2000), which provides that he number and qualifications of attorneys appointed for indigent defendants in capital cases shall be established by Supreme Court rule. III. Discovery Procedures Discovery procedure was the third area where the committee found meaningful improvements could be made in the capital trial system. The committee recommends the following enhancements to discovery procedures: 1) Make discovery procedures applicable to capital sentencing; 2) Require the State to certify, at least 14 days prior to trial, that all materials favorable to the defense (i.e. Brady materials) have been disclosed to the defense, and that all persons involved in investigation and trial preparation have been contacted to determine the existence of Brady materials; 3) Require the State to specifically identify Brady materials when they are disclosed to the defense; 4) Permit the use of discovery deposition by leave of the court, for good cause shown; 5) Require standardized discovery disclosures for DNA evidence; and, 6) Authorize the trial court to set deadlines for discovery disclosures under Supreme Court Rules 412 and 413. IV. Trial Administration The committee’s fourth category of proposals addresses the questions of when capital case procedures take effect and how they will be enforced. In answer to the first question, the committee is proposing to require the State to provide pre-trial notice of its intent to seek or decline to seek the death penalty: capital case procedures would apply when the State provides notice that it will seek the death penalty, or upon failure of the State to provide notice within the time allowed by the proposed rule. The committee found that the second question would be best answered by authorizing case management conferences, in which the trial court would have clear authority to require timely compliance with capital case rules. Notice of Intent to Seek or Decline to Seek the Death Penalty. The committee’s proposal would require the State to give notice of its intent to seek or decline to seek the death penalty within 120 days after arraignment or by a date set by the trial court for good cause shown. In the event the State did not provide notice within the time allowed, the case would be presumed to be capital. While it is possible notice of the intent to decline to seek the death penalty would not work to preclude the State from subsequently deciding to seek the death penalty, the committee believes that State would rarely, if ever, change its election. The committee notes that the best approach would be a requirement for binding pre-trial notice of the State’s intent to seek or decline to seek the death penalty, with exceptions shown for good cause. A binding notice requirement would provide an articulated starting point for capital case procedures, and clear notice to the defendant of the nature of the case. A binding notice requirement would also eliminate trial administration problems arising from late notice of the State’s intention to seek or decline to seek the death penalty, or the State’s failure to provide notice of its intentions. Although convinced that a binding notice requirement would lead to substantial improvements in trial procedure and administration, the committee felt constrained to recommend a non-binding notice rule in light of existing statutory provisions, and the consistent interpretation of those provisions to allow the State to decline to provide pre-trial notice of its intentions regarding the death penalty. The committee would encourage the Court to bring the possibility of a binding notice requirement to the attention of the Legislature. Case Management Conferences. The committee is proposing the use of case management conferences to assist the court in trial administration, and to provide a framework for ensuring complete pre-trial discovery and preparation for trial. The case management conference proposal also includes a provision requiring certification by the defense that essential matters of pre-trial preparation have been completed. Defense counsel would certify completion of full investigation of all aspects of the case, and to having met and discussed all aspects of the case with the defendant, including discovery materials, the State’s case, the defendant’s claims and defenses, and mitigation issues for trial and sentencing. V. Judicial Training The committee is recommending the establishment of training programs for trial judges who preside over capital cases. Judicial seminars would address issues such as the judge’s role in capital cases, motion practice, current procedures in jury selection, substantive and procedural death penalty case law, confessions, and the admissibility of evidence in the areas of scientific trace materials, genetics, and DNA analysis. The committee believes the seminars, and the regularly updated materials for the seminars, would be an invaluable resource for trial judges. VI. Other Findings and Recommendations The committee also studied a number issues that it did not feel were appropriate to address by changes to Supreme Court Rules. Among the most significant of these issues is the electronic recording of custodial interrogations. The committee found that routine recording of interrogations by means of audio or video taping is feasible, and is exceptionally helpful to the courts and to law enforcement. The committee believes that the Court should make a concerted effort to encourage law enforcement agencies to join the growing number of jurisdictions where electronic recording has been voluntarily adopted, and to support legislative initiatives to require recording of all custodial interrogations |
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