Defendants in limbo as uncertainty over death penalty persists

With the probable exception of the 16 men on Illinois' death row, the most enthusiastic response to the General Assembly's vote to repeal the death penalty likely came from defendants like Laurence Lovejoy, Patrick Taylor and Gary Schuning, whose capital trials are looming in suburban courts.

But while the historic vote offers a measure of hope to capital defendants and their attorneys, it also creates confusion, leaving cases like these in limbo.

All three are set for trial in the coming months — with Lovejoy's scheduled to begin today in DuPage County — while the death penalty remains in effect and Gov. Pat Quinn's intentions are unknown. Quinn has until March 18 to decide whether to sign the ban into law. If he does so, the law goes into effect July 1, after the trials for Lovejoy, Taylor and Schuning will likely conclude.

With no indication what Quinn will do, capital cases are going forward for all three men.

At least one judge is impatient with the governor's delay. DuPage Circuit Court Judge John Kinsella declared Quinn's silence “grossly irresponsible” Monday at a hearing during which he set a May 3 trial date for Schuning, an Addison man who could face the death penalty if convicted of the 2006 stabbing deaths of two women.

“He (Quinn) needs to state his position one way or another,” Kinsella said.

Lovejoy, whose 2007 conviction and death sentence was overturned by the Illinois Supreme Court, stands trial for the second time beginning today on charges he murdered his 16-year-old stepdaughter to prevent her from testifying about an earlier rape.

Taylor faces first-degree murder charges in the 2006 shooting death of Marquis Lovings in Lovings' Rolling Meadows condominium. Taylor's attorney, Cook County Assistant Public Defender Jim Mullenix, anticipates Taylor's trial will begin in a few months in the Rolling Meadows branch of Cook County Circuit Court.

No defendant sentenced to death during this limbo period would be executed if Quinn ultimately signs the death penalty ban. But whether the death penalty is on the table affects trials in other ways, creating the potential for unfair treatment for defendants tried during this interim period, their attorneys say.

The idea of a defendant negotiating a plea during this period worries Oak Brook attorney Kathleen Zellner, who has represented falsely accused defendants in civil suits.

“What about people who entered a guilty plea and received natural life without parole in order to avoid the death penalty?” said Zellner.

A plea is voluntary, Cook County State's Attorney Anita Alvarez said, and subject to the sentencing laws in place at the time. Alvarez said she expected that after legislators voted on the ban, more defense attorneys would ask prosecutors to take the death penalty off the table in exchange for a guilty plea accompanied by a lesser sentence. So far, that hasn't been the case, she said.

“The death penalty is still the law,” said Alvarez, who argued against the repeal before the state legislature earlier this month. “It's business as usual.”

DuPage prosecutors have not reviewed any death penalty cases recently, said Robert Berlin, DuPage County state's attorney, but will do so if circumstances warrant.

“It is still the law of the land and there is a possibility that the governor could veto the bill,” Berlin said.

Currently, Cook County has 87 capital-eligible defendants, including D'Andre Howard, charged with the 2009 deaths of three members of a Hoffman Estates family. Howard's trial is still several years off.

Lake County has capital cases pending against James Ealy, charged with first-degree murder in the 2006 slaying of a Lindenhurst restaurant manager, and Montago Suggs, accused of killing a clerk at a Waukegan check-cashing facility in 2007. No trial dates have been set for either man.

Will County State's Attorney James Glasgow also said he will continue to seek death where appropriate. Until recently, Will County's sole capital case involved Christopher Vaughn, the Oswego man charged with the 2007 shooting deaths of his wife and children inside the family SUV off Interstate 55. Vaughn's trial date has not been set.

Last week, Glasgow announced he intends to seek the death penalty for Robert Connor, charged with the 2009 strangling death of his cellmate at Stateville Correctional Center. A convicted murderer, Connor was serving a life sentence at the time.

“To secure our rights, I filed the paperwork,” Glasgow said. “If Gov. Quinn were to veto the bill and I fail to file, I'm barred from seeking death for Connor.”

And Glasgow says he will not “decertify” an existing case — eliminating the capital option — because doing so would prevent prosecutors from reinstating that option should the governor veto the bill.

The ongoing uncertainty troubles some attorneys.

“The timing of your trial should not affect the punishment you're given,” said Mullenix, whose clients include Taylor and Howard. The possibility that it could raises issues that could spur additional litigation on behalf of defendants, Mullenix said.

“Those issues could and should and probably will be raised,” said retired Cook County Circuit Court Judge Sam Amirante, now in private practice in Palatine, who represented serial killer John Wayne Gacy, executed in 1994 for the murders of 33 young men and boys.

“I personally think that life in prison without the possibility of parole is the worst sentence,” said Amirante, who suggests prosecutors use their discretion and not pursue the death penalty “until the issues are resolved.”

Peoria County State's Attorney Kevin Lyons apparently shares that opinion. Lyons recently announced his office will proceed “as if the death penalty does not exist in Illinois,” making life in prison the most severe punishment imposed even in cases of first-degree murder.

Berlin disagrees, saying he doesn't foresee any legal or constitutional issues related to trials taking place during this interim period.

Defense attorneys also raise concerns about selecting capital juries during this period, saying a moratorium on executions imposed by Gov. George Ryan in 2000 already has confused some jurors.

“I know from experience there are prospective jurors who equate the moratorium on executions with abolition,” said Mullenix.

Alvarez admits the moratorium has confused jurors, but she doesn't foresee it causing problems during the selection process.

“I think it would be marginal,” she said.

Mullenix disagrees. “I think it would be a nightmare.”

• Daily Herald reporter Robert Sanchez and wire services contributed to this report.

Jeff Engelhardt advocates forgiveness, not death penalty