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In Illinois all speedy trial rights have been suspended during the pandemic. Should this be the case?

Brian L. Polinske
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Edwardsville Criminal Defense Trial Lawyer

In Illinois all defendants are afforded a right to speedy trial.  For out of custody defendants that means all cases must be tried within 160 days from the date of charge.  In custody defendants have an even shorter period - 120 days.  Both of these rights are given to the defendants pursuant to statute.  The statute, of course, was enacted by our state's legislature.  In our laws there is a separation of powers that exists between the judicial, executive, and legislative branch.  Essentially, the separation of powers prevents the other two branches from interfering with one branch's decisions.  Since the Illinois legislature has created the speedy trial rights afforded each defendant in our state it would arguably take another action by that branch of government to change the existing law.  

However, in Illinois, defendants have been deprived of their statutory speedy trial rights not by an act of legislature, but instead by an act of the judicial branch.   The Illinois Supreme Court has issued an administrative order that gives carte blanche to the individual county judges to decline to follow the speedy trial act's limitations.  Madison and St. Clair counties are two examples wherein the chief judge has determined that the pandemic results in no defendant having a speedy trial right any longer, until such time as the chief judge allows those rights to continue.  

This seems to be a glaring overreach by the judicial branch into established law.  It simply seems to be violative of the separation of powers.  

Procedurally this issue becomes more complex.  Should a defendant try to challenge the administrative order by the judges they would file a motion in the trial court to dismiss their cases for speedy trial violations.  Most certainly the judge would deny the motion.  The defendant would then appeal the issue to the district court.  They, in turn, would most certainly deny the appeal.  The last step would be to fille a petition for leave to appeal to the Illinois Supreme Court.  Again, that court would deny their appeal based upon its administrative order.  Theoretically, the defendant could then file a petition with the Supreme Court of the US.  However, the problem is that the court has the power to determine whether their own administrative order is legitimate.  I really don't see the courts overruling their own actions.  

The correct way for a person's speedy trial right to be altered would be for the state legislature to enact another law stating just that.  But that didn't occur.  

I know it is very frustrating for many clients, especially those in custody, to grasp why filing a motion to dismiss is fruitless in this instance.  I believe soon that the Illinois Supreme Court will end their administrative order and restore speedy trial rights to all defendants.  But until that happens a defendant's case could be continued.  

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Charles Bocock 08/13/2021 11:48 PM
I was one of the first to file a Motion to Dismiss based on this overreach, but I felt the same thing - the Ill. Sup. Ct. isn't going to rule against their own illegal administrative order. That would be absurd. It's possible one of the appellate courts will rule in favor of the defendants, but that would be a dangerous move for any justice who has their sights set on a Sup. Ct. position in the future. What would be the basis for applying for cert to SCOTUS? Denial of due process? This is a case of a State court interpreting State law. Would SCOTUS take it? What has happened in other states with a similar speedy trial statute?
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