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Moratorium on Death: A Paradigm for Pennsylvania

by Jack L. Gruenstein

Winter 2003, Vol. 65, No. 4

Thirteen men in ten years were released from Illinois' death row because they were innocent. Condemned to death by the uncorroborated testimony of jailhouse informants, accomplices or, in some instances, the testimony of a sole and uncertain eyewitness, all were later proved innocent.

Just 48 hours before his scheduled execution, Anthony Porter was rescued from death row by the efforts of a group of enterprising journalism students. But for these students, Porter's innocence, and that of the other men they investigated, would never have come to light. Thirteen innocent men would have been put to death without the questionable evidence and tactics that put them on death row ever being revealed. A public still largely in favor of the death penalty would never have had their assumption—that the process leading to death penalty convictions was fair and the sentences just—challenged or disturbed.

The specter of the state-sponsored killing of innocent men was so frightening that Illinois Governor George H. Ryan, a staunch supporter of law and order, including the death penalty, halted all executions in March 2000. The governor issued an Executive Order, creating a commission to conduct a systemic review of the death penalty process and recommend improvements. The governor appointed Judge Frank McGarr, a former federal prosecutor and First Assistant Illinois Attorney General, to chair the commission. Judge McGarr, who served on the U.S. District Court for the Northern District of Illinois for eighteen years, including six as the chief judge, was joined on the commission by other distinguished individuals.

On April 15, 2002, after two years of work, the commission issued the comprehensive Report of the Governor's Commission on Capital Punishment (Report), consisting of eighty-five recommendations. The Report is a primer, buttressed by meticulous research, on the workings of the death penalty process in Illinois. The Report's findings and recommendations are pertinent and applicable anywhere the death penalty is authorized. The Report offers an objective view of a system in which the conflicting imperatives of police, prosecutors, defense counsel and courts collide in their separate but intersecting pursuits of justice. The commission neither apologizes for the death penalty nor raises a cry for its abolition. Rather, while acknowledging that death is a legitimate penalty reflecting the will of society, the commission's Report leads to the inescapable conclusion that the death penalty has become ensnared in a system so inequitable that in its worst incarnation it condemned thirteen innocent men to death.

The commission's recommendations range from suggesting that the police pursue all lines of inquiry, including those that exonerate a suspect, to discussing the difficult issue of how to pay for a system that will provide a level playing field for all participants in a capital case.

The scope of this article—less ambitious than the Report—examines some of the recommendations and how they may apply in Pennsylvania. Specifically, this article focuses on the issues of the police function in death penalty cases, the charging decision, death penalty training, the trial of death penalty cases, including post-sentencing issues, and funding of the necessary improvements to the system.

The Police Function
Generally, the most critical time in a homicide investigation immediately follows the discovery of a crime. In many instances, the initial investigation effectively determines the ultimate outcome of the prosecution. In the hours immediately before the suspect first encounters law enforcement, the police often locate witnesses and weapons, as well as preserve the forensic evidence needed to convince a jury of the suspect's guilt. Some experts say the odds against solving the crime grow exponentially with the passage of each day. Thus, the methods police utilize during the crucial time after discovery of a crime are important.

The public expects police to conduct a fair investigation. The commission discovered that was not always the case in Illinois, however. When examining the convictions of the thirteen men released from death row, the commission found no solid evidence connecting the men to the crimes in any of the cases. Instead, their arrests, prosecutions, convictions and sentences rested upon false confessions that were produced by police coercion, or were supported by the testimony of accomplices, in-custody informants, or single eyewitnesses of questionable reliability.

These findings led the commission to recommend remedies that may seem to be obvious: ensure that police are certain they have identified the right suspect; carefully preserve all evidence; fully document all custodial interrogations; conduct fair line-ups; and assure access to counsel for all indigent defendants in the custodial interrogation phase. By taking these few, simple steps, the commission believes the police will strengthen the public's confidence in the outcome of a capital case.

Tunnel Vision
"Tunnel vision," a malady that often afflicts law enforcement, can lead police to first decide who committed the crime and then obtain the evidence needed to support their pre-existing conclusion. To remedy this problem, the commission recommended that police pursue all reasonable lines of inquiry, whether they point to or away from a particular suspect. A local example of tunnel vision, the Lex Street massacre investigation that recently unfolded in the Philadelphia Court of Common Pleas, demonstrates the wisdom of the commission's recommendation. In that case, at least some of the police and prosecutors ignored substantial evidence suggesting that individuals other than the four men charged with the murders were responsible, specifically several confessions by someone else who was admittedly present at the scene during the killings and from whom one of the guns used in the shootings was recovered.

A full and objective investigation of the facts, as a counter-weight to tunnel vision, may require court and prosecutorial involvement in advising the police regarding the performance of a proper investigation. The commission recommended issuing a statewide policy statement on the duty of police to fully investigate. Pennsylvania has no such policy, and its adoption would reinforce the critical message that fairness, a key component of our criminal justice system, is available to all participants.

An unfettered investigation, unhampered by preconceived notions of guilt, may lead the police to discover exculpatory evidence. The commission dealt with this eventuality in several related recommendations. The Report suggested requiring police to list all evidence in a detailed schedule and give the prosecutor access to all investigative materials in their possession. The commission would require the prosecution to comply with Brady, and certify in writing to having met with everyone involved in the investigation and trial preparation, and to having disclosed all discoverable evidence to the defense.

In Pennsylvania, as in all other jurisdictions, the Commonwealth's Brady obligation is clear. Recently, the Pennsylvania Supreme Court acknowledged that this obligation extends not only to evidence in the possession of the prosecutor, but also to police files. In a limited fashion, therefore, Pennsylvania has addressed at least some of the evidentiary disclosure concerns raised by the commission. However, Pennsylvania does not require its prosecutors to certify in writing to having met with all necessary individuals and to having disclosed all discoverable information. The adoption of a certification requirement will ensure that both sides in a capital case have equal access to all available evidence. Such full disclosure, supported by a written certification filed with the trial court, will have the added benefit of ameliorating many post-trial defense claims that the prosecution failed to disclose exculpatory evidence. Only the most malevolent of prosecutors would certify to the court that discovery obligations have been met without actually having done so.

Full Disclosure
If police properly investigate and the prosecutor makes full disclosure of all evidence, then the defendant must have an opportunity to use the evidence to his or her best advantage. Particularly when the evidence is forensic, this presents a daunting and expensive task. The commission resolved this problem by recommending the creation of an independent state forensic laboratory operated by civilians with no law enforcement connections. In related recommendations, the commission ensured that the laboratory services be equally available to the defense. Although a minority of commission members concluded that no laboratory could ever be truly independent of law enforcement since laboratories perform most work for the police and prosecution, the majority of the commission opined that an independent laboratory would not only work, but would also promote confidence by both the prosecution and defense in the results reported.

Pennsylvania has no independent forensic laboratory equally accessible to prosecution and defense. When DNA evidence is analyzed, the work is done by either state and local police laboratories or by the FBI laboratory in Washington, D.C.

Laboratories controlled by or strongly connected to law enforcement handle all other forensic evidence analyses, including cause of death, toxicology and fingerprint identification. Creating an independent forensic laboratory and providing defendants with the funds necessary to utilize it would advance the objective of creating a fair death penalty system in which the victor is not always the side with more resources. In order to further these goals, Pennsylvania should establish and adequately fund such a facility.

Interrogation Process
A significant number of the commission's recommendations on police procedures concerned custodial interrogations and their consequences to the defendant. The commission recommended that the public defender be notified whenever a defendant, who police believe is indigent, makes a request for counsel. Although calling for an initial good-faith assessment by the police as to the financial status of the suspect, this is not a difficult burden.

The first interrogation of a murder suspect is usually crucial to the ultimate resolution of the case. Accordingly, Pennsylvania should adopt a procedure mandating that counsel must be available for immediate consultation during the course of the interrogation when it can reasonably be assumed a defendant will be the subject of capital prosecution. Even where a defendant wishes to make a voluntary statement, the presence or immediate availability of counsel will help render the resulting statement impervious to later claims of police coercion, physical abuse or lack of voluntariness.

The commission recommended that the entire interrogation process, not just the actual taking of the statement, be videotaped in order to ameliorate the known tendency of people to confess to crimes not only when they are guilty, but because of psychological and/or physical coercion. Videotaping the entire interrogation process will greatly reduce both the likelihood of police coercion in the interrogation process and the companion defense assertion that the confession is unworthy of belief because of police misconduct. Adopting this recommendation in Pennsylvania would not be expensive; the technology needed to make continuous recordings, such as the surveillance cameras used by many commercial facilities for security purposes, already exists.

A 1993 study by the National Institute of Justice, finding that the use of videotaped statements assisted the defense in evaluating the case and actually resulted in more guilty pleas, demonstrates another benefit of videotaping. Pennsylvania does not uniformly require that a suspect's statement be videotaped. Given the potential benefits to the system in terms of fairness and efficiency, however, there is no reason to reject the adoption of this procedure.

The commission next proposed that police carry tape recorders and use them to record any encounters with a suspect outside the police station. When a police officer does not have a tape recorder, the commission recommended that any unrecorded suspect statement should be repeated and the answers recorded by the police in the subsequent videotaped interrogation.

Taping suspects makes sense and should be adopted in Pennsylvania. Once the suspect acknowledges his unrecorded statement on tape, later averments that the statement was never made would be obviated. Even if the defendant later persists in denying that the statement was made, the videotape will establish that the suspect acknowledged making the unrecorded statement. That would, in turn, buttress the overall credibility of testifying police officers.

Recognizing the inherent frailty of many witness identifications, the commission made several significant recommendations regarding line-ups. Line-ups are a critical pre-trial issue because they are often the first real confrontation between a suspect and witness. If the commission's recommendations are adopted in Illinois (and Pennsylvania), a much fairer system of pre-trial identification will result.

The commission first recommended that the identity of the suspect be concealed from the officer conducting the line-up. Similarly, the eyewitness should be instructed not to assume either that the officer knows the identity of the suspect or the suspect is actually present in the line-up or photo spread. These procedures would avoid any unconscious signaling by the officer to the eyewitness that the selection made by the witness is correct.

The commission then recommended that the eyewitness look at each person or photograph separately and make a decision about each one before viewing the next photograph or person. Implementing this recommendation, particularly when the eyewitness is told not to assume the suspect is present, will eliminate the "relative judgment," which may cause an eyewitness to identify the particular person who looks most like the perpetrator by comparing that person to others in the line-up.

The commission also recommended changes in the use of "fillers." Usually, defense counsel will select people who resemble the defendant in the hope that the witness will be confused and unable to make an identification of the client. The commission recommended that "fillers" resemble the original description of the perpetrator given to police instead of the suspect's appearance at the time of the line-up. Experienced criminal lawyers know that there are many instances in which the description given by an eyewitness immediately after the crime bears little resemblance to the defendant on trial. The suggested procedure would require witnesses to make a judgment based upon actual memory of the criminal event, not a relative judgment that one of the six or eight people in the line-up should be identified.

If adopted in Pennsylvania, the use of "fillers" resembling the original description of the suspect would require a change in the criminal discovery process. The defense will need pre-lineup access to any discovery containing a recitation of the original description the eyewitness made. The incremental detriment to the Commonwealth of early disclosure of discovery is greatly outweighed by the benefit of ensuring a fair line-up, particularly in the context of a capital case.

At times, line-up eyewitnesses express either hesitation or confidence in their identification. The commission recommended that any such eyewitness statements be made in writing and recorded prior to any police feedback concerning the witness' ultimate identification. The commission endorsed the recording of statements to counterbalance eyewitnesses who were hesitant at the line-up, but became more confident of the identification by the time of the trial because of subsequent police reinforcement. In instances where an eyewitness is certain of the line-up identification, the prosecution will benefit. A written record made at the time of the line-up and supporting an eyewitness' trial testimony regarding the defendant's identification will corroborate the eyewitness' in-court identification.

A written record of the eyewitness' initial expression of confidence or hesitation in making an identification, combined with the videotaping of the line-up process, will allow the jury to properly assess the strength of the in-court identification. Particularly where one eyewitness has made the only identification, such documentary evidence could spell the difference between conviction and acquittal.

Death Penalty Selection
The prosecutor has unfettered discretion in deciding whether a case should be prosecuted and whether the facts and circumstances warrant death. Generally, only the prosecution knows the standards used in assessing a case and making those decisions. In Illinois, the commission found that standards of any kind were completely lacking in some instances. In response, the commission has recommended that the charging process be changed and that statewide uniform standards be implemented.

The commission recommended that every local prosecutor's office establish a committee to decide on the appropriateness of death. That decision would be subject to mandatory review by a statewide committee. At the state level, defense counsel would be authorized to submit information for consideration by the reviewing committee. Absent approval by the state committee, the local prosecutor would not be authorized to seek death.

Although a minority of commission members opposed mandatory review as contrary to the constitutional separation of powers doctrine, most favored it as one way to avoid, among the many ills associated with the death penalty, the impact of race on the charging decision. Putting aside this knotty constitutional issue, uniform standards and statewide review are more likely than not to lead to a fair and proportionate application of the death penalty. The Pennsylvania system of death penalty selection, now vested solely in the hands of the local district attorney, would realize the benefits of fairness and uniformity through adoption of the commission's recommendations.

The commission reviewed 250 Illinois cases where the death penalty was imposed and found that sixty-nine percent were reversed on direct appeal. Of that number, seventeen percent were as a result of legal error, twenty-one percent because of ineffective assistance of counsel, and twenty-six percent for prosecutorial misconduct. Spurred by these figures, the commission made a series of recommendations about training and experience standards not only for capital counsel, both defense and prosecution, but also for capital judges.

The commission recommended that judges receive specific training before being assigned to handle a capital case. Only those judges who have been certified, based upon training or experience, would be permitted to preside over a death case. The recommended training would focus on the misuse of false informant and accomplice testimony; the danger of tunnel vision; the risk of wrongful convictions; police investigation and interrogation methods; police discovery and handling of exculpatory evidence; the use of forensic evidence; and the risk of false confessions. These recommendations, if implemented, would reduce the high percentage of reversals based upon legal error and assure both the defendant and the state a fair trial.

The commission was equally demanding about training for lawyers. With the exception of the attorney general and the elected state's attorneys, only prosecutors and private attorneys who are certified as members of the Capital Litigation Bar would be allowed to represent either party in a death penalty prosecution. Membership in this specialized Bar would require a high level of experience before one could serve either as lead or co-counsel. In the commission's view, allowing only the most experienced counsel to appear in capital cases will reduce trial error based upon inexperience.

Although not addressed by the commission, prosecutorial misconduct would likely decrease if prosecutors become sensitive to issues such as tunnel vision, false confessions and the police handling of exculpatory evidence. Further, defense counsel experienced in the use of expert and forensic evidence will decrease the likelihood of ineffectiveness of counsel claims.

Although no objective training standards exist for Pennsylvania prosecutors, a concerted effort has been undertaken to provide indigent defendants with competent and experienced defense counsel in Philadelphia. Certainly, no one should have any objection to effective training. Therefore, statewide implementation of standards similar to those already in effect in Philadelphia, complemented by the recommendations made by the commission, should be considered for both the prosecutors and defense lawyers handling capital trials in the Commonwealth.

Trial of the Case
The commission proposes a significant restructuring of a capital trial with a series of far-reaching recommendations. The recommendations include utilizing discovery depositions, examining the reliability of informant testimony, adding jury instructions regarding cross-racial eyewitness identification and various changes to current practices at sentencing. These recommendations should all be adopted, not only in Illinois, but in Pennsylvania as well.

Discovery Depositions
The commission would require leave of the court and a showing of good cause before permitting the use of discovery depositions. Good cause includes: consideration of the consequences of not taking the deposition of the party; the complexity of the issues in the case; the complexity of the witness' testimony; and the defendant's other opportunities to obtain comparable information from other sources. With this recommendation, the commission sought to strike a balance between the needs of the prosecution and the defense in preparing for trial. Witnesses will always have spoken with the detectives and prosecutors before trial. Thus, the true beneficiaries of this proposal are the defendants, particularly those who, because of their indigence, are unable to hire private detectives to find and interview potential witnesses.

The recommendation will also help prevent the state from issuing sub-rosa instructions to a witness not to speak with the defense. In addition, with court involvement and oversight, the deposition process will not be used for an improper purpose, such as witness intimidation. In Pennsylvania there is no procedure comparable to the one found in the Report, yet the same factors that led the commission to propose the limited use of discovery depositions support the adoption of a similar procedure.

One of the central themes of the Report is the creation of a system that provides capital defendants with the information needed to prepare a proper defense. As mentioned previously, the commission would require the prosecutor to certify, inter alia, that all discovery has been turned over. In addition, all discussions with any witness concerning benefits or detriments to them would have to be reduced to writing and provided to the defense before trial. The latter recommendation evolved from conclusions reached by the commission in its study of the cases of the thirteen men released from death row, which found that many of those convictions rested upon the testimony of accomplices and informers who had undisclosed deals with the state.

The commission's concern over the use of informant testimony also led to the recommendation that the prosecution promptly inform the defense about the background of any informant testifying about statements allegedly made by the defendant while in custody. All of the commission's recommendations concerning the disclosure of information about informants are predicates for a mandatory pretrial hearing regarding the reliability and admissibility of in-custody informant testimony at trial. The commission suggested requiring that the hearing be held regardless of whether the informant is to testify at the guilt or penalty phase of the trial. The trial court would be required to consider the credibility of the informant and would have the power to suppress testimony if the prosecution failed to establish that the witness was reliable. The prosecution would have an interlocutory right of appeal from any suppression order.

The Report recommended that the trial court should be required to consider the following in determining reliability and admissibility:
  • The specific statement to which the informant will testify;
  • The circumstances surrounding the statement;
  • Any deal or inducement offered in exchange for the testimony;
  • The informant's criminal history;
  • Any instances where the informant has ever recanted;
  • Other cases where the informant has testified about the confessions of others; and
  • Other evidence bearing on credibility, including the relationship between the witness and the defendant.

Pennsylvania has no procedure for a pre-trial hearing on informant testimony, but it should. In-custody informant testimony is not infrequent in our courts, and the consequences of that testimony are often fatal to the defendant. The testimony of an in-custody informant highlights the defendant's own in-custody status, thereby implicitly telling the jury that the defendant is dangerous enough that pre-trial release was denied. Likewise, most jurors will ascribe legitimacy to the testimony of an in-custody informant because of the common belief that inmates sit around bragging about their crimes while in custody. Since the first opportunity to confront an in-custody informant usually comes during defense counsel's cross-examination at trial, it is often too late to meaningfully challenge the informant's character, motivation to testify on behalf of the prosecution, or the circumstances underlying the statement allegedly made by the defendant. The detailed procedure recommended by the commission, which begins with full disclosure regarding the informant and continues with a pre-trial challenge to informant testimony, will provide the defendant with a real opportunity for confrontation. Further, it will alert the court to any questionable conduct by police or the prosecution in proffering such testimony. A pre-trial hearing will help the defense understand the contours of the informant's statement, learn about the informant and discover any motives for the testimony. This pre-trial process will give the defense a genuine opportunity to develop contrary evidence with which to confront the informant at trial.

Assuming that the prosecution would not knowingly allow an informant to give false testimony, the state will suffer no real detriment by the proposed pre-trial process. In instances where the trial court does not suppress informant testimony because it has found the informant credible, the ruling alone, or in conjunction with other evidence, may convince a defendant that the best disposition of the case is a plea. Thus, one long-term benefit of the suggested process will be an increased efficiency in the trial and disposition of a capital case.

The Trial
The Report recommended that the twenty death eligibility factors currently employed be reduced to five in order to make imposition of the death penalty more uniform. The commission would limit the death penalty to:
  • The murder of a law enforcement officer in the line of duty;
  • The murder of a person in a correctional facility;
  • Multiple (two or more) murders;
  • Torture; and
  • The murder of a witness.

In the commission's view, limiting death to these five factors would reduce the high economic cost of a capital trial. In addition, because of the commission's opinion that executions should not be permitted for every first-degree murder, reducing the death eligibility factors to the five mentioned would confine capital punishment to the most heinous crimes. Given the complexity of the Pennsylvania sentencing scheme, if adopted here, the commission's recommendation would achieve the same beneficial results envisioned for Illinois. The commission continued its focus upon the role of eyewitnesses at trial in recommending case-by-case consideration of the use of expert testimony regarding eyewitness identifications. While the commission did not seek to unduly expand the use of expert testimony, it recognized that in problematic areas, such as cross-racial identification, the defense should not be automatically precluded from addressing the likelihood of witness error based upon psychological or other impediments.

The commission's suggested jury instruction on eyewitness identification supports the expert witness recommendation. The jury would be instructed to consider both the inherent difficulty in cross-racial identification and all eyewitness testimony in light of other evidence in the case. The recommendation is linked to the proposal that would bar the imposition of the death penalty based solely upon the uncorroborated testimony of a single eyewitness. Thus, while the jury remains the ultimate fact finder on the question of identification, its decision would be assisted by an instruction focusing upon the difficult psychological issues arising when the member of one race is called upon to identify someone of a different racial group.

In Pennsylvania, courts instruct juries to evaluate the testimony of an eyewitness based upon the following factors:
  • The witness' position at the time of the observation;
  • The witness' certainty, or lack thereof, in the identification;
  • Any variance between the witness' description and the person identified; and
  • The witness' prior failure to identify the subject.

After evaluating the testimony based upon these factors, the jury is further warned to consider identification testimony with extreme caution. Pennsylvania courts also instruct juries to consider the suggestiveness and/or taint arising from the preliminary hearing, trial, or from a pre-trial denial of a request for a line-up. Though there are some standards already in place, Pennsylvania does not instruct juries on cross-racial identification. Thus, while defense counsel may argue that a witness suffered from the pitfalls inherent in cross-racial identification, the argument must be made gingerly because of the charged nature of the subject matter. The adoption and use of a cross-racial identification instruction would alleviate this problem because the instruction would support the legitimacy of any defense argument and, consequently, may lead the jury to frank and open consideration of the intrinsic dynamics in cross-racial identification.

The commission also recommended additional special jury instructions on the reliability of in-custody informants and the increased reliability of defendants' electronically recorded statements over non-recorded summaries. These recommendations complement the previous recommendations on recording of a defendant's statement and on the use of informants at trial. For the reasons previously discussed, these recommendations should be adopted in Pennsylvania.

The commission recommended continuing the discovery process until sentencing. In order to protect a defendant's constitutional and statutory privileges, however, the commission would not require the defense to disclose inculpatory sentencing information, or any other information that would provide a prosecutorial advantage at a trial on the merits.

The commission suggested adding a mitigating factor concerning any history of emotional or physical abuse and reduced mental capacity. Under current Pennsylvania law, mitigating factor (e)(3) addresses the issue of reduced mental capacity. No comparable mitigating factors address a defendant's history of emotional or physical abuse, however. While this information may often be admitted under the (e)(8) catchall provision, a specific mitigating factor on emotional or physical abuse would add more weight to the jury's reception of such evidence. The special mitigating factor instruction would impress juries with the specific impact emotional and physical abuse has on defendants and should therefore be adopted in Pennsylvania.

In the "interest of justice," the commission identified a defendant's right of allocution without cross-examination. The commission would prevent a defendant from injecting any objectionable material into the proceeding by requiring him to read from a written statement previously submitted to the court for removal of any prejudicial or irrelevant material. While a defendant's expression of remorse would be largely unfettered by the prosecution, the unchallenged statement would not preclude the state from arguing that a defendant was insincere. As the commission pointed out, even without cross-examination, the jury can discern whether a defendant's statement is credible. Further, if the defendant strayed from his written remarks, the prosecution could then engage in a full cross-examination.

In many instances a capital defendant cannot testify because of either his prior record or a lack of the mental or intellectual capacity needed to withstand cross-examination. A defendant should not have his life be forfeit simply because he lacks such abilities. Adopting the allocution recommendation would provide an otherwise incapable defendant with a controlled opportunity for expressing remorse. As noted, the prosecution will not be hampered in any meaningful manner because of its right to engage in cross-examination if a defendant exceeds the parameters of the written statement.

Moreover, any information supporting the state's suggested aggravating circumstances, including the nature of the crime presented during the guilt phase, will be of record and available to the prosecution. By joining a limited right of allocution with an instruction on the alternative sentences available if death is not imposed, the jury will be able to properly exercise its discretion in applying the death penalty only to the most heinous crimes. There are no countervailing reasons against the adoption of these recommendations in Pennsylvania.

The commission advocated granting the trial judge the right to impose a life sentence when the judge disagrees with the imposition of the death penalty. This recommendation follows the previous recommendation regarding reduction of the number of death eligibility factors from twenty to five. If the twenty eligibility factors remain law, it would be virtually impossible for a trial judge to discern whether the evidence meets the related factors. Once the number of eligibility factors is reduced to five, the case law explaining the factors becomes more finite.

Where the reduction of death penalty factors has occurred, the judge will have no difficulty assessing the propriety of the death sentence in a particular case. This recommendation addressed any judicial "lingering concerns" about the defendant's guilt, for example, where the conviction rests primarily upon the testimony of an accomplice, informant or single eyewitness.

There is no similar procedure in Pennsylvania. Instead, a defendant must raise sentencing issues on post-sentence motions or on direct appeal to the Supreme Court. If the commission's recommendation is adopted in Pennsylvania, the question of penalty would be dealt with in an expedited manner; the trial court could correct a sentence without ordering a new trial or a new penalty hearing. Since the judicial oath binds the court to faithfully execute the laws of the Commonwealth, there need be no concern that the courts will wholly usurp the sentencing functions of the jury. Rather, this power will be exercised sparingly and only in the most egregious circumstances.

General Recommendations
The commission made many additional recommendations for changes in post-sentence proceedings. These changes range from amending the Rules of Professional Conduct to specify the prosecutors' post-conviction and post-sentence obligation of disclosure of evidence negating the defendant's guilt or sentence, to setting time limits on the filing of post-conviction proceedings and clemency petitions.

In terms of funding, the commission recommended increasing resources to the criminal justice system as the only way to effect meaningful reform in the capital litigation system. For instance, the commission suggested that trial counsel should be compensated at a rate more reflective of the "actual market rate of private attorneys."

The rates for attorneys in Philadelphia now bear little actual relationship to true market value and, for that reason, this recommendation warrants studied consideration. If adopted in Pennsylvania, market rate compensation of attorneys would attract competent counsel to the capital litigation system. While perhaps costly in the short run, the long-term benefits of reduced trial errors and an increase in the overall efficiency of representation would negate the initial drawback. Ultimately, more experienced counsel can only result in substantial financial savings and a more equitable death penalty system.

Lastly, while charged only with reviewing the Illinois death penalty, the commission concluded that many of its recommendations are applicable to the entire criminal justice system. Since only a small percentage of murder cases result in the death penalty, the commission's observation makes sense. While the vast majority of murder cases and other prosecutions result in sentences less than death, the punishments are nonetheless harsh. Many defendants are unfairly convicted and effectively warehoused for substantial portions of their lives. Justice requires that these individuals should also be part of a system that ensures the fairest possible process before the imposition of the most serious of consequences.

Our current capital punishment system is flawed. The extensive work done by the Illinois commission makes that apparent, whether one is in favor of or opposed to the death penalty. As long as a majority of the American public supports the imposition of this ultimate sanction, we have an obligation and duty to enforce the penalty. In doing so, however, we must be certain that only those who are actually guilty of the most heinous murders are sentenced to death. Although no system devised by the courts or the legislature will ever be free of error, we must endeavor to devise a system that provides fairness to defendants, the state, the victims and their families. The Illinois commission's Report offers a strong, principled and balanced step in that direction, and its recommendations for change should be given serious consideration in Pennsylvania.