SPRINGFIELD — The state’s highest court recently issued new rules to help courts transition to remote hearings for criminal cases as the pandemic continues to disrupt court operations statewide.
Illinois Supreme Court Chief Justice Anne Burke said the order “provides guidance for our courts to address the backlog of criminal cases created by the COVID-19 pandemic,” in a news release two weeks ago.
Courthouses shut their doors last March, allowing only essential matters to be held in-person and temporarily halting jury trials in criminal and civil cases and affecting criminal defendants’ right to a speedy trial.
In May, the Illinois Supreme Court issued an order that directed circuit courts to return to normal operations on June 1 and gave local judges discretion to allow for remote or in-person hearings.
In-person civil and criminal jury trials have slowly resumed with social distancing and other public health guidelines in place in nearly all counties, except Cook County where in-person jury trials are still on hold.
The Feb. 11 order states that certain criminal hearings, such as initial appearances or non-substantive status hearings, can be held remotely, even if the person charged with a crime objects to a remote hearing.
Other hearings, such as sentencing hearings or hearings where a plea of guilty will be entered, must be conducted in-person unless the person charged with a crime agrees to participate remotely, according to the order.
Bench trials, where a judge decides the verdict instead of a jury, can be held remotely if the person charged consents in writing and the judge finds that doing so will not jeopardize the integrity of the trial process.
However, the order does not allow for remote jury trials under any circumstances.
The new rules contained within the order were proposed by Illinois Supreme Court’s Court Operations During COVID-19 Task Force, which formed in June in response to challenges caused by the pandemic. The February order only applies to criminal cases where a person could face jail as a penalty.
Richard Kling, clinical law professor at Illinois Institute of Technology Chicago-Kent College of Law and a criminal defense attorney, said the latest order is the court’s attempt to balance the necessity of conducting criminal hearings and trials with the safety concerns of COVID-19.
“The bottom line is if you can’t get jurors because they won’t come in or they can’t sit safely, or you can’t get witnesses who won’t come in or can’t testify safely, you have to do something and that’s essentially what the Supreme Court did (with its order),” he said.
This new guidance expands the court’s order from May that paused what is known as the speedy trial law, which affords a person charged with a crime the right to a trial by jury within a certain time period after arrest, generally 120 days.
A criminal defendant’s right to a speedy trial is codified in Illinois statute, and is contained in the Illinois constitution. Defendants who are held in jail beyond the timeframe allowed under the speedy trial law without being given a trial must be released from custody.
The Illinois Supreme Court’s May order paused the speedy trial clock retroactively from March 20. For criminal defendants who have been in jail since that time, the order excludes the past 11 months from the timeframe by which the defendant is allotted under the speedy trial law.
Chief Judge Eugene Doherty of the 17th Judicial Circuit said the latest order “gives some relief” to defendants who may be unable to have an in-person jury trial.
“What the Supreme Court’s rule makes clear is that you can do a (criminal) trial by bench in a remote setting,” Doherty, who is vice-chair of the task force, said in a phone interview. “So, that’s one additional option that might allow somebody to go to trial that couldn’t go to trial if the remote option were not available.”
Doherty said this order is one of the more important developments from the COVID-19 task force.
“This recent rule, which is a temporary COVID rule, represents, I believe, an effort to clearly define what the rules of the road are with respect to remote hearings in criminal proceedings,” Doherty said.
Still, Kling said the Illinois Supreme Court’s May order has essentially paused the speedy trial clock “indefinitely” for criminal defendants who are jailed awaiting trial.
The question of whether the court has the authority to indefinitely pause a criminal defendant’s right to a speedy trial will continue to be debated, Kling said.
“I am positive, that for years to come, defendants who have had trials postponed (by the May order) are going to be filing motions to dismiss those cases,” he said. “This isn’t going be over for a long time.”