Jim Dey: Defense lawyers to bear burden of detention appeals

Mar. 21—The Illinois Supreme Court is wrestling with a huge problem dumped in its lap by Gov. J.B. Pritzker and legislators. One solution the justices have come up with is aimed at introducing more efficiency into its sclerotic detention appeal process.

But Champaign County Public Defender Elisabeth Pollock, whose office represents indigent defendants, said, "that's going to be a lot more work for my staff."

The issue the high court addressed involves the detention appeals process built into the new SAFE-T Act social-justice law that abolished the cash bail system in Illinois.

Under the law, individuals charged with crimes must either be released outright or held until trial.

But detained defendants have an absolute right to appeal a detention order. As a consequence, the state's appellate courts are being flooded with detention appeals.

Under the new rules, the high court is demanding a clear identification of the legal issues raised on appeal.

Pollock called it a procedural step to identify valid issues — like flight risk or public-safety threat. But she said while the issues may be "pro-forma," "every factual scenario is different" and time-consuming to argue.

Appellate Justice Robert Steigmann of Urbana has a far different role in the process than Pollock. From his perspective, the high court's rule changes "will make all the difference in the world," because it will help streamline the process.

"This is really a tough situation, for the appellate court in particular," he said.

Illinois' five appellate courts have been swamped with detention appeals since the new law took effect last fall. As a consequence, the high court ordered a committee of five appellate justices to come up with recommendations by March 1.

The new committee-driven rules take effect April 15.

Still, the high court expressed concern the changes won't solve a problem it calls "unprecedented and unsustainable."

"We harbor doubts about whether (the changes) will be sufficient," the high court said, a possibility that would require "more fundamental changes."

That is a legitimate concern because the SAFE-T Act's language conflicts with the high court's demand for the presentation of "meaningful issues" on appeal.

The law gives the detainee an absolute right to appeal, no matter how valid his claim.

On the other hand, the high court is ordering defense lawyers to raise only valid issues, even though they lack the authority to decide whether an appeal has merit.

"The decision to take (an appeal) of a detention order ... should be strategic one, and not one made in a rote manner," the high court said.

The conflict — what the law provides and what the justices seek — appears to be incurable.

Under the new approach, a defendant ordered detained must file an issue-laden, fact-filled motion asking the trial judge to reconsider.

Any issues not raised in the motion to reconsider will be deemed waived by the appellate court. If the trial judge denies the motion, the appellate court will consider the motion to be the equivalent of an appellate brief and rule accordingly.

The high court made other changes that include extending deadlines for the appellate court to rule.

The SAFE-T Act was written to reduce county jail populations by eliminating bond requirements for low-level defendants unable to post any cash bond.

But defendants charged with more serious crimes and possessing criminal records present issues that require judges to use their discretion about whether to release or detain.

Before the new law, bond appeals were, basically, non-existent in the state's five appellate courts. If current numbers continue, there will be more than 4,500 appeals during the SAFE-T Act's first year, the overwhelming majority of which will be denied.