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Cook County courts start reopening Monday, with thousands of cases stalled by pandemic. ‘How do you wake the sleeping giant?’
Saturday, July 04, 2020 Chicago Tribune by Megan Crepeau
For months, the “busiest courthouse in America” has been silent.
The rare visitor is greeted with a maze of metal barriers and a security guard wielding a thermometer. Inside, desks are surrounded with plexiglass, and the normally grimy hallways are sparkling clean.
But on Monday, after three months of coronavirus-induced dormancy, the Leighton Criminal Court Building will start revving back up — and plowing through thousands of cases that have been frozen in place.
“How do you wake the sleeping giant?” defense attorney Alana De Leon mused.
The reopening is not a full return to normal operations, and many speculated there will be little in the way of significant movement for the cases that have stalled.
Criminal Division judges will be in their courtrooms only two or three days per week; everything but bench trials and evidentiary hearings can be held by videoconference. Jury trials may not be held until next year.
Still, Monday marks the first major expansion in court procedures since a widespread shutdown in mid-March.
Criminal defendants have borne the brunt of the consequences, defense attorneys told the Tribune. It has been difficult to exchange potential evidence with prosecutors, hard to keep track of potential witnesses, and unfair to make people wait in custody without a jury trial date in sight.
“In our country we have certain rights that we give to defendants, that we give to everybody, and because of COVID, we have simply set those all aside,” said Stefan Fenner, who said he is handling about 65 criminal cases in Cook County.
Cook County may not even see its first bench trial until August at the earliest. Prosecutors and defense attorneys first need to track down and subpoena key witnesses — an often difficult prospect in the best of times made much more difficult by the chaos of the past few months.
De Leon had a weeklong jury trial scheduled for mid-April in a predatory criminal sexual assault case. “We’ve got witnesses that we’ve thought about, gosh, what happens if we lose them?” she said. One witness suffers from asthma. “I’m constantly checking in on her to be like, hey, are you taking care of yourself?”
Meanwhile, her client is awaiting trial on home confinement.
“He would have had a decision back in April, but this is still hanging over his head and we can’t do anything about it, so it’s very frustrating,” De Leon said. “At the same time, there’s so many things to balance. Safety and rights, how do you weigh those against each other?”
Particularly bothersome for some defense attorneys was a move by the state Supreme Court to effectively allow the suspension of speedy trial deadlines due to the pandemic.
In normal circumstances, when a defendant formally invokes his right to a speedy trial, the clock starts ticking: Prosecutors have 120 days to bring him to trial if he is in custody, and 160 days if he is out on bond. If they blow past that deadline, then by law the charges must be dropped.
The state Supreme Court ruled that time spent awaiting trial during the COVID-related shutdown does not count against the speedy trial clock. Some defense attorneys have attempted to invoke their clients’ speedy trial rights anyway, on the grounds that the deadlines were established by the legislature and the judiciary has no right to suspend them.
In a long-shot effort, a pair of Illinois lawyers attempted to take the matter to the U.S. Supreme Court.
Attorney Fenner has also bristled at the lack of jury trials, saying those are a bedrock constitutional right that should not be dismissed out of convenience.
“(Prosecutors) need to make important decisions on which cases are important for them to proceed on and which cases they need to put in the back of the line,” he said. “We can’t simply take away peoples’ rights and say no, you have to wait indefinitely.”
Grand juries — which along with preliminary hearings are necessary to formalize felony charges in a case — have been operating since the shutdown, but in much reduced fashion.
Normally, the courthouse at 26th and California has two grand juries operating daily, for a month at a time. But due to the shutdown, one of the March grand juries was extended into April, then May, and was finally dismissed at the end of June.
They were operating once a week, and later were joined by a second grand jury that also convened once a week. The jurors use large courtrooms, not the smaller regular jury rooms, so they can maintain distance. By the end of the summer, grand jurors might be operating as often as three times a week.
The reduced operations have forced prosecutors to triage their cases, deciding which to indict and which to let linger, sources said.
Judges have been giving prosecutors significant leeway in extending deadlines for things such as preliminary hearings, according to defense attorney Tracey Harkins.
“As I’ve been told by many judges, ‘Well Miss Harkins, these are extraordinary times.’ Yeah, for (my client) who’s sitting in jail,” she said. “I’m going to sit outside with a glass of wine with my friends tonight.”
Even with the reopening, it will likely be difficult to get witnesses in the door. Prosecutors often have significant trouble getting witnesses to cooperate; defense attorneys complain that police officers don’t show up when they are supposed to. Both sides told the Tribune the virus provides an extra incentive for witnesses not to set foot in the building.
Some said there may be a spate of plea deals once the building reopens, either because defendants are desperate to get out or because prosecutors will start making better offers to clear the backlog.
But if a generous offer isn’t on hand, and there is no chance of a jury trial or other significant movement in the case fairly soon, a defendant doesn’t have much incentive to plead, especially since they can earn credit on their sentence for time spent in custody, Harkins said.
“If the offers aren’t worth your while, and the person has to sit in jail anyway, then those cases just aren’t going to be (concluded) until whenever things go back to quote normal unquote,” she said. “If they ever do.”
That could keep the standstill lasting long past Monday as attorneys — and defendants — learn to navigate uncharted territory.
“First and foremost we have to think of everybody’s safety,” De Leon told the Tribune. “That’s got to be the priority. But as defense attorneys, our biggest priority (is also) our client’s rights and moving cases along to let people either get on with their lives or get on with their sentences, and that’s a really hard thing.
“We all want to go back to work but none of us are really sure what it’s going to look like,” she added. “I don’t really see how anybody can be litigating in the environment that we’re in now.”