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					No. 82536

IN THE
SUPREME COURT OF ILLINOIS



PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the Circuit Court of the
                                      )    Thirteenth Judicial District,
            Respondent-Plaintiff,     )    Bureau County, Illinois.
      vs.                             )
                                      )    No. 91-CF-92.
JEFFREY D. RISSLEY,                   )
                                      )    Honorable James Lanuti,
            Petitioner-Defendant.     )    Judge Presiding.




                   AMICUS CURIAE BRIEF OF 44 CONCERNED
                   ILLINOIS ATTORNEYS AND LAW PROFESSORS
                   IN SUPPORT OF REHEARING




                                           Lawrence C. Marshall
                                           Karen L. Daniel
                                           NorthwesternUniversity Legal Clinic
                                           357 East Chicago Avenue
                                           Chicago, Illinois 60611
                                           (312) 503-7412
                                           Counsel for Amici



STATEMENT OF INTEREST OF THE AMICI
       The amici are a diverse group of Illinois attorneys and law professors who are committed

to preserving the public trust in the administration of justice. Some of the amici are defense

oriented, while others have backgrounds in law enforcement. Some have served in the state or

federal judiciaries.   Some are former state or federal prosecutors. Some are distinguished

academics. Some have risen to the top of the legal profession in private practice. All, however,

are esteemed members of the Illinois legal community. Just as they have different backgrounds,

the amici have divergent views on capital punishment. Some oppose it and others favor it, but all

share the view–which prompted them to lend their names to this brief–that every prisoner facing

the ultimate sanction of our criminal justice system should have a full and fair opportunity to

litigate every potentially meritorious legal claim pertaining to his or her case.

       The amici are:
James J. Alfini, Professor of Law, Northern Illinois University College of Law;

Albert W. Alschuler, Professor of Law, University of Chicago Law School;

Kimball R. Anderson, Winston & Strawn, Chicago;

Thomas M. Breen, Thomas M. Breen & Associates, Chicago; Former Felony Trial Supervisor,
Cook County State‟s Attorney‟s Office;

Philip H. Corboy, Corboy & Demetrio, Chicago; Former President, Chicago Bar Association;

George J. Cotsirilos, Cotsirilos, Tighe & Streiker, Chicago;

Richard E. Friedman, Rosenthal & Schanfield, Chicago; Former First Assistant Illinois Attorney
General;

Thomas F. Geraghty, Associate Dean, Northwestern University School of Law; Director, Bluhm
Legal Clinic;

Barry B. Gross, Former First Assistant State‟s Attorney of Cook County;

Gary V. Johnson, Camic, Johnson, Wilson & McCulloch, Geneva and Aurora; Former State‟s
Attorney of Kane County;

Peter M. King, Canal, Davis & King, Chicago;

William J. Kunkle, Jr., Cahill, Christian & Kunkle, Chicago; Former First Assistant State‟s
Attorney of Cook County;

George N. Leighton, Earl L. Neal & Associates, Chicago; Retired Judge, United States District
Court for the Northern District of Illinois;

Jeffrey P. Lennard, Sonnenschein, Nath & Rosenthal, Chicago;

Jeremy D. Margolis, Altheimer & Gray, Chicago; Former Director, Illinois State Police; Former
Assistant United States Attorney, Northern District of Illinois;

Michael B. Metnick, Metnick, Cherry & Frazier, Springfield;

Abner J. Mikva, Visiting Professor of Law, University of Chicago Law School; Retired Judge,
United States Court of Appeals for the District of Columbia;

Mary L. Mikva, Abrhamson Vorachek & Mikva, Chicago; Former Assistant Corporation
Counsel, City of Chicago Department of Law;
Judson H. Miner, Miner, Barnhill & Galland, Chicago; Former Corporation Council, City of
Chicago Department of Law; Former President, Chicago Council of Lawyers;

Donald J. Mizerk, Winston & Strawn, Chicago; Former Assistant Cook County State‟s Attorney;
Former Member, Board of Directors, National District Attorneys Association;

Joseph T. Monahan, Monahan & Cohen, Chicago;

Steven F. Molo, Winston & Strawn, Chicago; Former Assistant Illinois Attorney General;

Norval Morris, Professor of Law, University of Chicago Law School;

Sheila M. Murphy, Rothschild, Barry & Myers, Chicago; Former Presiding Judge, Circuit Court
of Cook County, Sixth Municipal District;
Dawn Clark Netsch, Professor Emeritus, Northwestern University School of Law;

Timothy P. O'Neill, Professor of Law, John Marshall Law School;

Roger Pascal, Schiff, Hardin & Waite, Chicago;

Richard Phelan, Foley & Lardner, Chicago; Former President, Chicago Bar Association;

R. Eugene Pincham, Retired Justice, Illinois Appellate Court, First District;

Alexander Polikoff, Staff Counsel and Former Executive Director, Business and Professional
People for the Public Interest (BPI);

Daniel E. Reidy, Jones, Day, Reavis & Pogue, Chicago; Former First Assistant United States
Attorney, Northern District of Illinois;

Dom J. Rizzi, Miller, Faucher & Cafferty, Chicago; Retired Justice, Illinois Appellate Court,
First District;

Lowell E. Sachnoff, Sachnoff & Weaver, Chicago;

John R. Schmidt, Mayer, Brown & Platt, Chicago; Former Deputy Attorney General of the
United States;

Seymour F. Simon, Piper, Marbury, Rudnick & Wolfe; Retired Justice, Illinois Supreme Court;
Former Justice, Illinois Appellate Court, First District;

Frederick J. Sperling, Schiff, Hardin & Waite, Chicago; Former President, Chicago Lawyers‟
Committee for Civil Rights Under Law; Former President, Chicago Council of Lawyers;
Randolph N. Stone, Clinical Professor of Law, Edwin F. Mandel Legal Aid Clinic, University of
Chicago Law School; Former Public Defender of Cook County;

Earl E. Strayhorn, Retired Judge, Cook County Circuit Court;

Lawrence J. Suffredin, Jr., Law Offices of Lawrence J. Suffredin, Jr., Chicago;

Harold W. Sullivan, Member, Criminal Law Committee, Illinois State Bar Association; Retired
Presiding Judge, Cook County Circuit Court, Second Municipal District;

Ann C. Tighe, Cotsirilos, Tighe & Streiker, Chicago; Former assistant United States Attorney,
Northern District of Illinois;
Rene A. Torrado, Jr., Vedder, Price, Kaufman & Kammholz; Former President, Chicago Bar
Association;

Robert L. Tucker, William J. Harte, Ltd., Chicago;


Jeffrey Urdangen, Jeffrey Urdangen, Ltd., Chicago.
INTRODUCTION
       Over the past several years, each branch of Illinois government has committed itself to

the vital task of restoring public confidence in the Illinois death penalty. This Court has been at

the forefront of the movement, having appointed a Special Supreme Court Committee on Capital

Cases, and having acted swiftly to adopt a number of the Committee‟s proposals into law. Many

of these reforms focus on ensuring that capital defendants receive effective representation of

counsel. See generally Supreme Court Rule 714. The Court clearly has recognized that when a

defendant‟s counsel does not provide a robust defense, or when counsel does not ensure that
significant issues are preserved for appellate review, the community can have no confidence in

the fairness of the proceedings leading to the imposition of the death sentence. Indeed, the

impetus for the promulgation of Rule 714 was the recognition that “[t]he most important

safeguard of the fairness and accuracy of capital trials is the competence, professionalism, and

integrity of the attorneys who try those cases.” Supreme Court Rule 714, Committee Comments,

Special Supreme Court Committee on Capital Cases, March 1, 2001.

       It is because the undersigned amici recognize the Court‟s commitment to these principles

that the amici now come forward to ask the Court to reconsider its decision in People v. Rissley.

There are substantial differences among the amici with regard to their positions on capital

punishment. Some of the amici believe that the death penalty is a legitimate form of criminal

punishment. Others among the amici oppose the death penalty on a variety of grounds, ranging

from philosophical beliefs to highly practical concerns about how the penalty is administered.

All of the amici agree on one point, though: it should be unthinkable to execute a person without

fully assessing the merits of that person‟s legal claims. This is particularly true when those

claims involve the ineffectiveness of trial counsel–one of the key sources of wrongful

convictions and unjust sentences.

       This Court‟s decision in this case, as it now stands, not only deprives Jeffrey Rissley of
any right to have his claims reviewed, but also creates a significant barrier to other defendants‟
ability to have their claims heard in any court. This result is at war with the quest for enhancing

the accuracy and fairness of the criminal justice system.

ARGUMENT
    THIS COURT’S INTERPRETATION OF THE “CULPABLE NEGLIGENCE”
    PROVISION    OF   THE    POST-CONVICTION  HEARING    ACT
    INCONGRUOUSLY CREATES A WINDOW OF TIME DURING WHICH A
    CAPITAL DEFENDANT IS UNABLE TO OVERCOME THE EFFECT OF HIS
    ATTORNEY’S MISTAKES.


       It appears uncontested that Rissley relied on the advice of counsel in determining when to

file his petition for post-conviction relief. This Court has now determined that the attorney‟s

interpretation of the limitation period of the Post-Conviction Hearing Act was incorrect, and that

as a result, Rissley filed his petition six or ten days late. Furthermore, in holding that Rissley‟s

reliance on counsel‟s advice did not fall under the “lack of culpable negligence” savings clause

of the statute, this Court has determined that there is no remedy for a capital defendant whose

attorney incompetently represents him during this stage of death penalty proceedings in the

Illinois courts.   This holding is unfaithful to the clear meaning of the “lack of culpable

negligence” provision and is incompatible with this Court‟s commitment to ensuring that the

Illinois death penalty statute is implemented justly and accurately.

       An indigent capital defendant is entitled to representation by court-appointed counsel at

trial, on direct appeal, during post-conviction proceedings, and on post-conviction appeal. 725

ILCS 5/113-3(b); 725 ILCS 5/122-2.1(a)(1); Supreme Court Rules 604(d), 605(a), 605(b),

651(c). This Court and the Illinois legislature have demonstrated their commitment to providing

not just any representation, but qualified representation, to capital defendants during all stages of

state court proceedings. The legislature has funded three divisions of the Office of the State

Appellate Defender, each dedicated to providing both direct representation of capital defendants

and assistance to other defense attorneys in death penalty proceedings. First, the Death Penalty

Trial Assistance Division provides assistance to defense attorneys handling death penalty trials.
Second, the Supreme Court Unit provides direct representation to indigent defendants on direct
appeal.     Third, the Capital Litigation Division provides direct representation to defendants on

post-conviction proceedings and assists other post-conviction counsel in capital cases.

          Under this system, Rissley, who is indigent, was represented by the Supreme Court Unit

of the Office of the State Appellate Defender on direct appeal.1 Furthermore, although his

petition for post-conviction relief was initially filed pro se, he was entitled to, and eventually

received, representation by appointed counsel under the supervision of the Capital Litigation

Division of the Office of the State Appellate Defender during his post-conviction proceedings in

the trial court. Finally, the Office of the State Appellate Defender continued its representation of
Rissley during the appeal from the trial court‟s dismissal of his post-conviction petition.

          It is evident, then, that the preparation of the initial post-conviction petition is the only

stage of Illinois death penalty proceedings during which a capital defendant does not have the

right to counsel to assist in his defense.2             As occurred in this case, defense counsel have

traditionally filled this void by assisting capital defendants in drafting their petitions for post-

conviction relief and by advising capital defendants about where, when, and how to file such

petitions. It is difficult to imagine how the system could function without this invaluable

assistance to defendants, some of whom are woefully uneducated and others of whom suffer

from an array of debilitating psychiatric conditions. Fortunately, members of the capital defense

bar do not, as a rule, abandon capital defendants at the conclusion of their direct appeals. Rather,

counsel typically guide such defendants through the process of filing a post-conviction petition

and the process of securing appointed counsel. This assistance prevents death row inmates from

being left entirely without legal representation during the process of filing a post-conviction

petition.


1        At the time of Rissley‟s trial, the Death Penalty Trial Assistance Division had not yet been created, nor was
this Court‟s Rule 714 yet in place.

2        Unlike indigent defendants in non-capital cases, who are not automatically entitled to appointment of
counsel in post-conviction proceedings (see 725 ILCS 5/122-4), all indigent capital defendants are entitled to
appointment of counsel, but only after they file an initial pro se petition (see 725 ILCS 5/122-2.1(a)(1)).
         The critical issue that must be confronted in this case is what happens when an attorney

advising the defendant during this brief window of time provides incompetent advice. This is

precisely what the Court has found to have occurred here. The Court held that Charles Schiedel,

the head of the Supreme Court Unit of the Office of the State Appellate Defender, erred in his

calculation of the deadline for the filing of Rissley‟s petition, resulting in the complete forfeiture

of Rissley‟s post-conviction claims. In view of this Court‟s conclusion that the limitation period

in the statute was unambiguous, Mr. Schiedel‟s advice to Rissley regarding the deadline for filing

the petition was incompetent. Yet, because this incompetent advice came during that short
period in which a defendant has no automatic right to appointed counsel, the Court held that

Rissley had no recourse, and that his underlying claims of constitutional error during the trial

court proceedings were forever barred.3                The amici respectfully submit that this result is

incompatible with the governing system of ensuring effective counsel at all stages of capital

proceedings, with the relevant statute, and with this Court‟s goal of guaranteeing basic fairness in

the administration of capital punishment.

         It is axiomatic that whenever a capital defendant is entitled to counsel, he is entitled to

effective counsel. The performance of trial counsel is covered, of course, by the doctrine of

ineffective assistance of counsel, which affords relief where the defendant demonstrates that his

trial attorney‟s performance fell below an objective standard of reasonableness and that the

attorney‟s deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); People v. Albanese, 104 Ill. 2d 504, 526 (1984). Errors by counsel on direct appeal are



3         Not only is Rissley barred from having his post-conviction claims heard in any Illinois court, he almost
certainly is barred from raising these claims in federal court in a petition for habeas corpus because this Court has
now deemed such claims to be procedurally defaulted. See 28 U.S.C. §2254(b)(1)(A). Moreover, there is strong
reason to fear that he has lost his opportunity to file a petition for habeas corpus even with regard to the claims he
raised in his direct appeal in this Court. Federal law requires that such a petition be filed within one year of the
termination of direct appeals, and tolls that period only for the “time during which a properly filed application for
State post-conviction or other collateral review * * * is pending.” 28 U.S.C. §2244(d)(2). As a result of this Court‟s
decision, it appears that Rissley never had a “properly filed application” pending and that his right to seek federal
habeas corpus on any basis has been destroyed by this Court‟s decision.
reviewed and remedied under the same standard. Evicts v. Lucey, 469 U.S. 387 (1985); People v.

West, 187 Ill. 2d 418, 435 (1999).

           Similarly, the Post-Conviction Hearing Act and this Court‟s rules protect a post-

conviction petitioner from inadequate representation by his attorney. “It is well settled that the

[Post-Conviction Hearing] Act requires counsel to provide a „reasonable level of assistance‟ to

petitioner in post-conviction proceedings.” People v. Turner, 187 Ill. 2d 406, 410 (1999).

Supreme Court Rule 651(c) provides that post-conviction counsel must file a certificate with the

court demonstrating that counsel (1) has consulted with the petitioner concerning his contentions
of constitutional error, (2) has examined the trial record, and (3) has made any necessary

amendments to the petition. Dismissal of a post-conviction petition cannot stand if the record

demonstrates that counsel has not satisfied these requirements. See People v. Johnson, 154 Ill.

2d 227, 238-45 (1993) (dismissal of capital post-conviction petition reversed where counsel

failed to take steps to provide evidentiary support for the petition by interviewing witnesses and

reviewing other available evidence); Turner, 187 Ill. 2d at 412-14 (same result where counsel

failed to make necessary amendments to the petition and attach supporting affidavits).

           In addition, this Court has demonstrated that it will take action where necessary to

guarantee that a capital defendant receives adequate representation on appeal from the dismissal

of a post-conviction petition. In People v. Johnson, 192 Ill. 2d 202 (2000), the petitioner‟s

appointed counsel filed a brief in this Court that failed in numerous respects to comply with this

Court‟s rules governing appellate briefs. This Court noted that under ordinary circumstances,

such lack of compliance would have resulted in a waiver of the issues raised on appeal. Id. at

207-08. Rather than depriving the capital defendant of the opportunity to present his claims,

however, this Court ordered that the case be rebriefed in accordance with the relevant rules,

stating:
Pursuant to Supreme Court Rule 651(a), defendant has an appeal to
this court as a matter of right. Further, Supreme Court Rule 651(c)
provides for the appointment of counsel on appeal to indigent
defendants. Rule 651 guarantees defendant a reasonable level of
assistance of counsel. An attorney who files a brief that is so
fundamentally deficient that it precludes review by the supreme
court has not provided a reasonable level of assistance.
Id. at 207 (citations omitted).

         In sum, a capital defendant may obtain relief from inadequate representation by his

attorney at trial, on direct appeal, during post-conviction proceedings, and on appeal from post-

conviction proceedings. This Court‟s decision in the present case has now incongruously carved

out a period of time–the period immediately preceding the filing of a post-conviction petition–

during which there is absolutely no relief for capital defendants who have received incompetent

advice from an attorney.

         If this conclusion were compelled by statute, then perhaps the unjust result here would
have to be tolerated (absent some constitutional challenge). That, however, is far from the case.

The very provision of the Post-Conviction Hearing Act creating the time limit for filing a petition

explicitly excuses a delay in filing when the petitioner can show that the “delay was not due to

his or her culpable negligence.” 725 ILCS 5/122-1(c).

         When applied according to its plain and natural meaning, this provision removes the

gross incongruity that otherwise would exist. A defendant who relies on counsel to advise him

regarding the time for filing a post-conviction petition might not have a pure claim of ineffective

assistance of counsel, but such a defendant cannot be deemed “culpably negligent.” This safe

harbor provision makes immense sense within the context of the post-conviction statute. The

legislature recognized that it had created a brief period of time in which defendants–including

capital defendants–would often be without officially appointed counsel. The legislature also

recognized that the only fatal damage that a capital defendant could suffer during that period

would be to miss the deadline for filing a post-conviction petition.4 Hence, the legislature

created a broad safe harbor–allowing defendants to file tardy petitions (even if they were

negligent in not having filed earlier) so long as they were not “culpably negligent.”



4         Once a timely petition for post-conviction relief in a capital case is filed, counsel is automatically appointed
and is routinely given leave to amend the petition. 725 ILCS 122-2.1(a)(1). Thus, the risk to a capital defendant
relates to the timing of the petition, not to its contents.
        By contrast, if this provision is read to require dismissal of a petition even when the

petitioner was relying on the advice of counsel, the statutory scheme makes no sense whatsoever.

It is absurd to think that the legislature intended to provide appointed counsel, as a matter of

right, to all indigent capital defendants, but not provide the right to meaningful counsel during

the critical time in which the right to file such a petition could be forever lost through an

uneducated defendant‟s error. Such a result would be utterly inconsistent with the legislature‟s,

and this Court‟s, otherwise responsible philosophy of ensuring competent representation of

capital defendants throughout their litigation in the Illinois courts.
        The amici respectfully submit that the unfairness of narrowly reading the safe harbor

provision could not be more manifest than in the present case. It was the State of Illinois that

provided counsel to Rissley in the person of Mr. Schiedel.                Mr. Schiedel is not only an

extraordinarily experienced capital defense attorney, he is also a deputy of the State Appellate

Defender of Illinois, an official who is appointed by this very Court. See 725 ILCS 105/5. Due

to an error committed by this deputy of an Illinois Supreme Court appointee, this Court has held

that Rissley forfeited his right to collaterally attack his conviction.

        Indeed, it is particularly poignant         that Rissley‟s post-conviction claims include

allegations of ineffective assistance of counsel on the part of his appointed trial attorney. As is

evident from the dissenting opinion, this lawyer would not come close to qualifying even as co-

counsel, much less as lead counsel, under this Court‟s new rule creating an Illinois Capital

Litigation Trial Bar. See Supreme Court Rule 714. According to the lawyer‟s own testimony, he

could recall having participated in only one criminal trial–and that was as second chair. Slip op.

at 9. By his own account he was not qualified to represent Rissley. Id. Moreover, the trial

lawyer admitted that his performance was affected significantly by his fear of physical attack

from the prosecutor. Id. at 13. The State of Illinois appointed this trial lawyer for Rissley and

also employed the lawyer who gave improper advice to Rissley about how to obtain judicial
scrutiny of the trial lawyer‟s performance. It is viciously ironic that unreasonable advice by one

lawyer has now forever barred Rissley from complaining about the incompetency of his earlier
lawyer. Had only one of his lawyers been ineffective, Rissley would be entitled to relief.

Because two of his lawyers were ineffective, however, he has no right to any post-conviction

review.

          This Court has the power and opportunity to grant rehearing in this case and to restore the

confidence of the People of Illinois that those who are executed in this State have received the

full panoply of procedural protections. This cannot possibly be said of Rissley at this time. The

specter of executing this man without ever addressing his significant claims would be a giant step

backward in the pursuit of a fair and just system of imposing capital punishment.
CONCLUSION
       For the reasons stated herein, the amici respectfully ask the Court to grant

rehearing in this matter.



                                                Respectfully submitted,


                                         Lawrence C. Marshall
                                         Karen L. Daniel
                                         Northwestern University Legal Clinic
                                         357 East Chicago Avenue
                                         Chicago, Illinois 60611
                                         (312) 503-7412
                                         Counsel for Amici

				
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