By MARILYN J. RICE

Justice delayed: Illinois and its Speedy Trial Act The wheels of justice grind exceedingly slow — and to many in the criminal justice system that is just the problem. The Illinois legislature's response to long felony trial delays was the Illinois Speedy Trial Act, which sets time limits within which a defendant must be tried. But the act contains no penalties for violations, and criminal trials actually take longer now than before it was passed. This article examines the reasons for this, and compares Illinois' attempts to speed justice with those of other states and the federal government.

"EVERY PERSON in custody in this state for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody. . . . Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the day defendant demands trial. . . . Every person not tried in accordance with such provisions shall be discharged from custody or released from the obligations of his bail or recognizance."

This is the heart of the Illinois Speedy Trial Act (Ill. Rev. Stat. 1979, ch. 38, sec. 103-5). In spite of the seemingly unequivocal wording of the statute, the average felony case resolved in Cook County in the first five months of 1979 was 448 days old, according to a statistical study conducted last year by the privately funded Chicago Crime Commission. Other metropolises deal with their accused felons in one-third to two-thirds that time. In Detroit, the average case takes 230 days; in Washington, D.C., 224 days; in Los Angeles, 132 days; and in New Orleans, 102 days.

In 1974, the year before the Illinois Speedy Trial Act was amended to resolve the problem of unnecessary, abusive delays in case dispositions, Cook County's average felony case lasted 352 days — a full quarter year less than it took in 1979.

In the 18 months Cook County's felonies linger in limbo, our system of justice is compromised. Victims, witnesses and citizens may lose faith in the system. Memories fade, residences change, and the tenaciousness of attorneys may falter. Justice delayed becomes justice denied.

The Chicago Crime Commission's statistical findings were the springboard for six months' research into how to cure a problem that threatens to make justice in Cook County a matter of mere manipulation in the meting of crime and punishment. In the course of this research, over 60 judges, attorneys, law enforcement officials and educators discussed their perceptions of the problem and their suggestions for change. The overwhelming consensus was that Illinois' amended Speedy Trial Act insures neither speed nor efficiency. Said a prominent Cook County defense attorney: "There is little judicial emphasis on prompt dispositions in state courts. The defendant can ask for many continuances, but once he answers 'ready,' the state can still ask for an unlimited number of continuances."

There was further agreement that common legal procedures conspire to take advantage of the loopholes in the law. According to Norval Morris, former dean of the University of Chicago Law School and member of the Chicago Police Board, "the structure of charge and plea bargaining fuels the continuance. If we could solve [one of] the problems relating to either the continuance, speedy trial, or charge and plea bargaining, we would have solved them all."

The problem of delayed justice is not unique to Cook County, but the enormous populations, massive caseloads and cumbersome court structures make it critical there. The 256-square-mile county includes six courthouses, where 22,672 felonies were processed in 1979. Of that number, 18,074 were disposed of by year's end. Most of those were resolved by plea bargaining.

The 'clock' and justice
Continuances — adjournments or postponements of action — are the major causes of delays despite the unequivocal language of the Speedy Trial Act. Such continuances are allowed whenever the court believes the interests of justice require them, and fair and impartial hearings, of course, demand some leeway in the law. But the leeway in Illinois' Speedy Trial Act is large: the act's wording permits manipulation by continuance. Though promoting justice is the intended purpose of continuances, other purposes appear to be served.

Although legislation to regulate the course and duration of justice has been regularly introduced in the Illinois General Assembly, none has passed since the Speedy Trial Act of 1975. Before the statute was amended in 1975, continuances granted within the 120-day limit turned the trial "clock" back to day one. The 1975 amendment sought to close this loophole. Under its terms, the clock no longer reverts to day one but remains stationary until the date stipulated by the continuance. But the amendment has failed to produce the desired effect of speeding up the trial clock. This is not surprising, since the statute contains no penalties for violations. As of 1979, the average time elapsed between arrest and disposition rose 30 percent from 1974.

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There are six parties to the system of justice: the prosecution, the defense, judges, law enforcement, witnesses, and the judicial system itself with its rules, procedures, etc. By intention or accident, each increases the pressures that favor continuances.

The Prosecution. In a criminal situation, the state is generally the prosecution. Like any bureaucracy, the state has many agendas. What rises to the top, whether through seriousness or newsworthiness, is likely to receive most immediate attention. Despite complications, a John Wayne Gacy is tried with remarkable speed. Other cases wait their turn, or spin off in the revolutions of the system. "The system," said one judge, "needs incentives and motivators for expediting cases."

Continuances can be accidental or deliberate. The state's attorney's office may delay a case it expects to lose until it is no longer in the news, or demand continuance after continuance in hopes of forcing a more favorable plea. According to former Cook County Circuit Judge Louis Garippo, "A judge can force the defendant to trial, but not the state."

Sheer volume is the major cause of state-initiated continuances. Cook County justices agreed that the county's continuance problem is a result of "the massive workload of the state's attorney and his inability to cope with it."

Many believe continuances are more damaging to the prosecution, which bears the burden of proof and is responsible for producing the majority of the witnesses. Faced with a weakening case, the prosecution may be more amenable to reduction of a charge or allowing the case to die altogether.

The Defense. The U.S. Constitution states that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. . .," but defense delays may originate in the client, his counsel or the law.

The criminal defendant in Illinois, by statute, is entitled to the advice of counsel before pleading to the charge. If at arraignment the defendant has been unable to secure counsel, the court is required to order a continuance to enable the defendant to do so.

Illinois statutes permit a variety of pre-trial motions which in themselves create delays. These motions include dismissals, bills of particulars or a list of witnesses, substitution of judge or counsel, and suppression of confessions or illegally seized evidence. The granting of most pre-trial motions is at the discretion of the trial judge. The statutes remain silent as to the time that may be expended on these issues.

The criminal bar, as opposed to the civil bar, is comprised of a very small. number of attorneys. Many continuances, says Henry E. Scheffler, chief of the Criminal Division of the Cook County Public Defender's Office, are simply side effects of overcrowded schedules. Lawyers in private practice can be selective in choosing which and how many cases to accept. Public defenders, however, must accept any and all cases referred by the courts. Both sectors are hard pressed to handle Cook County's thousands of felonies.

Defense attorneys, once secured, may believe it is a sacred duty to attempt every means available to preserve their clients' innocence, prolong their freedom or forestall the inevitable verdict. Some attorneys fight for dismissal past the eleventh hour. Procedures are necessary to support justice, but they also delay trials. There may be motions for dismissal or suppression of evidence and requests for more time to prepare complex cases with multiple defendants, to find missing witnesses, to allow psychiatric examination or presentencing investigations. Said a prominent Cook County defense attorney who asked to go unnamed, "In a criminal trial, being dilatory is a right."

"And all right when being dilatory relates to fee and timeliness," added a colleague. Not infrequently, motions are offered as part of the good show necessary to justify high fees. When a client is jailed while awaiting trial, recurring continuances may be a reminder that attorney's fees are customarily paid before services are rendered.

Continuances agreed upon by prosecution and defense are another source of delay. If neither side feels ready to go to trial, they may agree to stop the speedy trial clock in order to gain time to prepare. Cook County Circuit Judge Benjamin S. Mackoff speculated that "judges might be less likely to agree to continuance requests if they were not so often 'double blackmailed' by defenders and prosecutors who have already agreed among themselves to delay." These continuances in turn increase the likelihood of bargained pleas.

Judges. Many of the same problems that cause continuance requests from the bar also favor continuance granting from the bench. Judges also suffer from overcrowded schedules and demanding responsibilities. Overloads result in unmanageable dockets. Federal Appellate Judge William J. Bauer spoke freely about a problem other judges recognized off the record: "The caseload should be weeded out." A judge unable to determine how many scheduled cases will proceed cannot know if he will encounter dead time. According to Chief Justice of the Criminal Division of the Cook County Circuit Court, Judge Richard Fitzgerald, "Each judge must be allowed flexibility to manage his own time and courtroom proceedings." Until judges become managers, overcrowded schedules and lengthy delays will remain the order of business.

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The problem is compounded by informal codes of conduct and the prevalence of gentlemanly agreements. Court rules are utilized as little more than guidelines for trial court discretion. Oral, off-the-record requests and easy compliance are normal on both sides. "Accountability demands that all motions for continuance, indeed all motions in general, should be made part of the court record," said former Judge Garippo. "In that way we would have less abuse of the informal system."

The pressures of time, the custom of relaxed rules and human nature all can be factors in judicial dilatoriness.

Law Enforcement. The problem of delay is compounded by issues affecting other participants in the justice system. The business of police departments, says James O'Grady, undersheriff of Cook County and past superintendent of the Chicago Police Department, is to keep law and order. Time off the streets is charged to the public in reduced service and protection. If court appearances are scheduled on off-duty or overtime hours, as they are in 60 to 70 percent of all cases, according to O'Grady, the cost to the employing department or agency can be tremendous.

The human costs of continuances are also considerable. Law enforcement officers expend a great deal of time in preparation of cases for presentation to the prosecutor. In many cases, surveillance and evidence must be maintained, witness and victim interviews completed and verified, and endless routine chores kept up to date. After all this work, "nothing is more frustrating to an officer than losing a conviction because a case was repeatedly delayed," says Eldon L. Quick of the Illinois Chiefs of Police Association.

Repeated continuances are a common source of ill-will among the court, the attorneys on both sides and the law enforcement officers. "Cooperation and recognition of one part of the system by all other parts is a prerequisite in any system. Each part is equally important to the effectiveness of that system," said Richard Napoli, director of Adult Probation of the Cook County Probation System.

Witnesses. The backbone of many cases is the testimony of witnesses. Repeated delays discourage witnesses from appearing. Many become less cooperative and often refuse to appear. Most witnesses cannot afford time away from their work and the related loss of wages. The time and expense involved in traveling to and from court, especially in such a congested system as Cook County, which covers over 250 square miles, is an added hardship on those who must appear. In addition, delays dull both memory and fervor. All these factors can have substantial impact on the trial testimony of witnesses. In a high percentage of cases, acquittal can be attributed to the loss of testimony by a witness. Said one assistant state's attorney who had seen case after case falter after long delays: "The victim and the public are one and the same. Their rights should be recognized."

The Judicial System. In Cook County — with 45 percent of the state's population and a single judicial circuit — Illinois' continuance problem reaches its boiling point. The widely spread court system is a further complication, making it difficult for all parties engaged in a trial to be in the same place at the same time. Overloading, overcrowding, distance, the number of court locations, traffic and even weather make continuance by accident as common as continuance by intention.

Finally, despite the best intentions of most elements involved in a case, the philosophical objective of a speedy trial act may be compromised or defeated. Expeditious trials are intended to protect defendants from prolonged and lengthy prosecutions. Such delay is extremely costly for an incarcerated defendant awaiting trial. For those defendants not incarcerated, a delay may be more desirable and outweigh the involved costs. Nonetheless, in order to maintain public confidence that the guilty are punished, swiftness is crucial.

Guidelines and penalties
To resolve the problem of delayed justice, the federal government, some states and a number of organizations that watch over the business of justice have suggested or instituted a variety of standards. Texas presently employs a caseload management system. In order to permit prosecutors, defense attorneys, law enforcement officials and court personnel to accomplish their goals simultaneously, that state is building an information system and clearinghouse. Texas also offers seminars to judicial officers in planning, human relations, monitoring and change. The federal government, the American Bar Association, the National Association of Courts and the states of Iowa, Florida, New York, South Dakota and Wisconsin have all created specific standards and recommendations for time limitations on arrest and trial. Furthermore, these five states have proposed or recommended specific penalties for violation of those standards. These include fines, contempt citations, disqualifications, grievance procedures, reduced fees paid to attorneys from public funds and non-compliance notices to prosecutors.

Within the federal courts, which are regulated by the Federal Speedy Trial Act of 1975 (18 USC 3162), indictments must be filed within 30 days of the arrest or summons. Arraignment must take place within 10 days of the indictment, with trial commencing no later than 60 days from that point. Parameters have also been established to control other delays. Continuances are allowed when it is necessary to establish the mental competency of the defendant, when the defendant is on trial on other charges, when interlocutory appeals or hearings on pre-trial motions are necessary, or when the defendant or an essential witness is absent or unavailable. Continuances may be granted only if the court sets forth, for the record, either orally or in writing, its reasons for the delay. Reasons for the findings must show that granting the continuance best serves justice and the interests of the public and the defendant.

The Federal Speedy Trial Act also establishes guidelines to which judges must adhere when considering continuances. If failure to grant a delay would make continuation of the proceedings impossible; if allowed preparation time under the limitations would be unreasonable due to the complexity or unusual nature of the case; or if the grand jury has delayed in making its indictment, continuances are in order.

The federal act specifically mandates that no continuance shall be granted as a result of congestion of the court calendar or failure to prepare by the attorney for the government.

The federal law also calls for charges to be dismissed when no indictment or information has been filed within the required time limit. In dismissing charges, the court must consider the seriousness of the charge, the circumstances which led to the dismissal and the ramifications of reprosecution.

Sanctions may be imposed upon both counsel for the defense and the attorney for the government when they allow a case to be set for trial with the knowledge that a necessary witness will be unavailable; file a motion without merit for the sole purpose of delay; attempt to obtain a continuance through false statements; or fail to proceed to trial without justification.

Penalties for violations of the standards include reduction in fees for defense counsels and fines for prosecutors; denial to practice =before the court for prsecutors; and preorting to the appropriate desciplinary committees.

The federal Speedy Trial Act has been gradually phased into practice, with sanctions effective July 1, 1979. This phase-in has allowe the federal court systems to adjust and conform to these mandates. The federal act has furthered the timely disposition of cases largely because of these sanctions

While the federal Speedy Trial Act has proven beneficial, it is not applicable wholesale to state justice systems. Many aspects would be difficult to apply yo state court systems because of the differences in cases prosecutedd under state and federal law. But the federal act has amply demonstrated that spoeedy justice is possible. For those who would reap similar benefits for Illinois, three considerations are paramount in revising law and practice. These are sanction, controls and phasein.

Sanctions force the parties to justice to become more effective because they have no alternative. Dismissal of all charges binding an accused felon who has not received timely justice is the ultimate sanction. Advocates, such as the American Association and the National Association of Courts, believe states should adopt specific penalties for violation of standards similar to the federal sanctions. Five states have adopted penalties for violations, and they report they have been effective in the speeding up of the trial clock.

Implementation of a "master calendar" approach to justice in Cook County, utilizing administrative controls and time limitations to coordinate trial procedures, must begin with education. But education of those involved in the administration of justice in the goals of such revolutionary changes cannot alone bring efficiency. Real change also demands rebudgeting and such innovations as hiring law clerks to assist circuit court justices.

Finally, an efficient system of justice depends on realistic timetables for implementation. Phasein of the federal Speedy Trial Act took four years. Because the present Illinois system is geared to delay, abrupt changeover to both time limitations and sanctions could result in chaotic problems worse than delay.

The court system does not work as an exact science. Room must be left for judgment and discretion on the part of prosecutors, defense attorneys and the judiciary. The abuse of the continuance motion in the felony courts of Cook County, however, oversteps discretionary boundaries. Unnecessary court delays defeat the ultimate purpose of the justice system. As matters stand now, the Illinois Speedy Trial Act is being compromised. Without action, its entire purpose may be defeated.

Each part of the criminal justice system has duties and rights, responsibilities and authority. Preserving those rights while protecting citizens' rights to an effective, efficient and fair system for the administration of justice is the issue at hand.

Justice and education
In his last annual address before the American Bar Association, Chief Justice Warren E. Burger outlined a proposal for reforming the process by which justice is delivered. "Lawyers, lawmakers, and the judiciary must work together to remedy the deficiencies that exist in dealing with the problems of crime and criminals," he said. In reducing crime, Justice Burger believes, the paramount issues are "the deterrent effect of swift arrest, speedy and prompt trial, certain penalty, and at some point finality of judgment."

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At the state level, reform may only come through action in the General Assembly. Rep. Roman J. Kosinski (D., Chicago) with the backing of then-Director of the Illinois Department of Law Enforcement Tyrone C. Fahner, petitioned a subcommittee of the Judiciary II Committee to hold hearings on the matter of felony trial continuance and delay problems. Hearings were held last summer.

In April, Rep. Kosinski introduced House Bill 1390 to remedy the problem. He said, "My underlying concern is proper state prosecution in felony trials. Loss of state witnesses is too often due to an excessive number of continuances. Whether as a defense ploy, full court agendas or lack of

defense time, the end result is the same. Mr. Citizen witness becomes disenchanted or economically oppressed and falls away from the trial."

Fahner, now attorney general, has indicated he intends to testify as a proponent of H.B. 1390. He said he supports the general thrust of the bill.

Leaders in the federal and state criminal justice systems have reopened some painful wounds by laying the blame for justice delayed and denied exactly where it belongs — on the practitioners in the system. □

Marilyn J. Rice has a master's degree in legal studies, Sangamon State University, and has 10 years experience in state government with emphasis in law enforcement and corrections. She is now executive assistant to the director of the Department of Corrections Training Academy.

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