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People v. Mertz11/17/2005
new safeguards.
The statutory measures cited by defendant state that: (1) the jury must receive instructions that the mitigating factors to be considered include evidence that "the defendant's background includes a history of extreme emotional or physical abuse" (720 ILCS 5/9-1(c)(6) (West 2004)); (2) the jury must determine unanimously, "after weighing the factors in aggravation and mitigation, that death is the appropriate sentence" before the death penalty may be imposed (720 ILCS 5/9-1(g) (West 2004)); (3) the trial court must "conduct a hearing to determine whether the testimony of [a jailhouse] informant is reliable, unless the defendant waives such a hearing" and the prosecution must timely disclose material relevant to the reliability and credibility of the informant's testimony (725 ILCS 5/115-21 (West 2004)); and (4) this court may overturn a death sentence and impose a prison term if it "finds that the death sentence is fundamentally unjust as applied to the particular case" (720 ILCS 5/9-1(i) (West 2004)).
In this case, none of these measures were available to defendant. First, the jury was not specifically instructed to consider evidence of defendant's allegedly abusive background as a mitigating factor. The jury's consideration of this factor was simply relegated to the broad, undefined category of unspecified potential mitigation material. Second, the jury was instructed to apply a different balancing test, whereby the default sentence was death unless the jury determined that the mitigation evidence was sufficiently strong to preclude imposition of the death penalty. Third, defendant did not waive a separate hearing on the reliability of the jailhouse informants' testimony, and no such hearing was held. Finally, defendant argues that this court is entitled to use its newly acquired statutory authority to overturn his death sentence and impose a prison term based on the fundamental injustice of that sentence due to the prior unavailability of the other legislative reforms.
Defendant asserts that here, unlike Hickey, retroactive application of the additional legislative protections would affect fewer than a handful of cases. He maintains that this court should overturn his death sentence as fundamentally unjust because it was imposed in the absence of the new statutory protections. To address this argument, we must consider whether the measures are to be applied retroactively or only prospectively.
Under the most recent analytical approach adopted by this court on the issue of retroactivity, we must look first to the express temporal reach of the amendment. Caveney v. Bower, 207 Ill. 2d 82, 92 (2003). See also People v. Atkins, No. 98257, slip op. at 4-5 (October 20, 2005) (restating the Caveney test). Here, only one of the four provisions cited by defendant includes an express statement of its intended temporal reach. Section 115-21, requiring a separate hearing on the reliability of jailhouse informant testimony, states: " his Section applies to all death penalty prosecutions initiated on or after the effective date of this amendatory Act of the 93rd General Assembly." 725 ILCS 5/115-21(f) (2004). The effective date of the amendment was November 19, 2003. Thus, under the Caveney test, standing alone, section 115-21 is not retroactively applicable to this case. None of the other three cited provisions, however, contain a similar expression of legislative intent. Thus, to determine whether they should be applied retroactively, we must consider whether the amendments are procedural or substantive in nature. If they are procedural, they may be retroactively applied, but if they are substantive, they may not. Caveney, 207 Ill. 2d at 92.
While the
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