Center on Wrongful Convictions
Northwestern University School of Law

     The decision whether to grant leave to a third party to file a brief as amicus curiae is not governed by any specific rule in the Federal District Court. Instead, "The district court has broad discretion to appoint amici curiae." Hoptowit v. Ray, 682 F.2d 1237,1260 (9th Cir. 1982).
Courts generally look to several factors in guiding the decision to appoint amicus to a case: "(1) the amicus has a 'special interest' in the particular case, (2) the amicus' interest is not represented competently or at all in the case, (3) the proffered information is timely and useful, and (4) the amicus is not partial to a particular outcome in the case." United States v. Alkaabi, 223 F. Supp. 2d 583,592 (D. N.J. 2002) (citation omitted).

     In this habeas proceeding, Ms. Milke challenges the constitutionality of her conviction and death sentence. We have read the briefs filed by Ms. Mike, amicus curiae and the State in this matter. One of the issues raised is the constitutionality of uncorroborated and unrecorded confessions obtained under circumstances that raise serious doubts as to the confession's existence much less its freedom from coercion. This raises significant Federal constitutional issues of due process and guarantees against self-incrimination with which the CWC has a special interest.

     The CWC was founded in 1998 as an outgrowth of work done by Lawrence Marshall, the CWC's Legal Director, in representing clients facing the death penalty in Illinois, and the Clinic's Executive Director Rob Warden, whose work as an investigative journalist helped expose scores of innocent men who had been wrongfully convicted in Illinois.' Together, Professor Marshall and Mr. Warden have played a role in nine of the thirteen cases in Illinois in which innocent men who were sentenced to death were exonerated. Their work, and the work of many others, contributed to the decision of Governor George M. Ryan to declare a moratorium on the death penalty in Illinois until the problems that led to the wrongful convictions could be identified and remedied.

     False and coerced confession evidence has played a role in many of the cases in which the CWC has been involved. Eleven of the seventeen cases of men who were exonerated from Illinois' death row were tainted by problematic confession evidence. Ronald Jones, Gary Gauger, Rolando Cruz, and Alejandro Hernandez each gave - or were said to have given - false statements implicating themselves in murders they did not commit. Joseph Burrows was convicted on the basis of the false and coerced confession of co-defendants Ralph Frye, who was also innocent, and Verneal Jimerson and Dennis Williams (as well as their co-defendants Kenneth Addams and Willie Rainge, who were not sentenced to death) were convicted, in part on the false and coerced testimony of Paula Gray. The last four condemned men who were pardoned on grounds of actual innocence by Governor Ryan - Leroy Orange, Madison Hobley, Stanley Howard, and Aaron Patterson - were all convicted based upon false confessions which were obtained by police torture.(1)

     Our experience in these and other false and coerced confession cases has led us to call for a variety of reforms in capital cases, including the one reform which could go along way towards eliminating the problem of false and coerced confessions and safeguarding the due process rights of suspects - mandatory electronic recording of all custodial interrogations. Our interest in this matter concerns the constitutional arguments regarding the admissibility of uncorroborated and unrecorded confessions. While the defendant in this matter is ably represented in the voluminous briefs already submitted, the constitutional arguments the CWC intends to make could only add to the Court's understanding of this rapidly changing area of law. At this time, for example, there are several states that have adopted a rule mandating the electronic recording of an interrogation in order for it to be admissible. See, e.g., Stephan v. State, 711 P .2d 1156 (Alaska 1985), State v. Scales, 518 N.W. 2d 587 (Minn. 1994), Vernon's Ann. Texas Code of Crim. Pro. Art. 38.22. In addition, three other state Supreme Courts are currently considering such a rule: New Jersey (State v. Thomahl Cook, Docket No. 53, 778, argued November 2003), Massachusetts (Commonwealth v. Valerio DiGiambattista, SJC 09155, to be argued April 6, 2004); and the Wisconsin Supreme Court (State v. Jerrell C.J., No. 02-3423), accepted for oral argument on March 23, 2004 on question of whether to require recording of juvenile interrogations). The CWC has filed amicus briefs in the New Jersey and the Wisconsin cases and assisted in the preparation of the amicus brief in Massachusetts. Moreover, the CWC was one of the leading organizations behind the passage of legislation in Illinois to require that interrogations in homicide cases be electronically recorded. 725 ILCS 5/103-2.1 (2003)

     Moreover, this is a case in which a woman's life is at stake. The U.S. Supreme Court has recognized the "truly awesome responsibility" associated with death penalty cases. Caldwell v. Mississippi, 471 U.S. 320, 329 (1985).

     The CWC's motion is also timely. A hearing has not yet been scheduled.

     Finally, the cases in which leave to file amicus has been denied on the basis of partiality to the outcome of the litigation have involved the amicus having a financial interest in the outcome of the case. See, e.g., American Satellite Co. v. United States, 22 Cl. Ct. 547, 549 (1991) (denying leave to corporation which had its own administrative action pending against the defendant, and a favorable outcome in the case would have benefited that other matter). That is of no concern here.

     For these reasons, the CWC respectfully requests leave of the Court to participate as amicus curiae and to file a brief in support of Debra Milke.

Dated this 8th day of April, 2004.

Steven A. Drizin (Ill. Bar No. 61XXXXX)
Center on Wrongful Convictions
Bluhm Legal Clinic
Northwestern University School of Law
XXX XXXX XXXXXXXXX
Chicago, Illinois 60XXX
(312) 50X-XXXX

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(1) For more information about the cases of the 13 exonerated Illinois death row inmates, see
http://www.law.nwu.edu/depts/clinic/wrongful/exonerations/Illinois.htm.

Please click here to read the actual amicus brief
of the Center on Wrongful Convictions,
Northwestern University School of Law
in Debra Milke's case!