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Thursday, Aug. 19, 2004 03:37 pm

Waiting for justice

For some Illinois defendants, the right to a speedy trial is an illusion

Cover illustration by Dennis Balogh/KRT

The U.S. Constitution guarantees a criminal defendant the right to a speedy trial. In Illinois, the law defines "speedy" as 120 days from the day the defendant is charged.

For almost a year, Byron Williams waited -- and asked -- for his day in court. Standing in Williams' way: his lawyer, a public defender who says the decision on when and how to prepare a case for trial is his, not his client's.

Williams, charged in the 1997 murder of an Alton man, insists he's not guilty and wants to clear his name.

But Williams isn't the only detainee in Madison County who has been forced to accept the empty promise of a speedy trial. And Madison County isn't the only place in Illinois where a long stint behind bars is tolerated as an unavoidable part of the pretrial process.

The John Howard Association -- a nonprofit group that monitors prisons and some jail facilities throughout Illinois -- recently reported that defendants in Cook County waited an average of 189 days to go to trial. In some cases, the association found, pretrial detainees waited as long as five years.

Here in Sangamon County, public defender Brian Otwell says that although the average detention can be as short as a few weeks, there are "people in custody now in our jail for two years waiting for trial, possibly longer than that."

A heavy workload and an underfunded criminal-justice system contribute to these delays, says Otwell, who serves as the president of the Illinois Public Defender Association. "I'm not one who advocates throwing money at every problem, but you could throw money at this problem and it would be alleviated to a great extent," Otwell says.

A lack of funding and a heavy workload are also explanations John Rekowski, the Madison County public defender who represents Williams, offers for the delays in his client's case.

But Charles Fasano, prison and jail program director for the John Howard Association, says there shouldn't be any excuses for delaying justice.

"There have been some court cases in [which] judges have said, 'My God, these cases are taking too long and the state [of Illinois] needs to fund this more adequately.' "

"These people have rights, and if they're indigent, you can't say, 'Well, we don't have the money.'"

Williams' legal troubles grew out of a dispute among several young people in Alton and East St. Louis more than seven years ago.

On Jan. 28, 1997, two teenage boys called a teenage girl and harassed her about her causing problems with a third youth. One of the teenage boys threatened to kill the girl and her cousin, Darryl Womack. Two days later, the state alleges, the two teenagers and three other men, including 27-year-old Williams, drove to the apartment complex where Womack lived. They spotted Womack walking on the street, and one of the teenagers allegedly shot him and another man, James Patterson.

Before the shooting, prosecutors say, the killer talked to Williams about "taking care of business" in Alton, and Williams' alleged response was to tell the shooter to "shut his mouth up." Six weeks after the murders, Williams was indicted on one count of contributing to the criminal delinquency of a juvenile in connection with Patterson's murder.

Then, 152 days after Williams was arrested, he filed a motion to have his case dismissed under the state's speedy-trial act. The court denied the motion.

The prosecution then added three charges: one count of contributing to the delinquency of a minor in connection with Womack's murder, one count of first-degree murder for Womack, and one count of first-degree murder for Patterson's death.

Williams asked the court to dismiss the Patterson murder charge because 168 days had elapsed since he was first charged with a crime relating to Patterson's death, the delinquency allegation. The trial court denied the motion.

The trial began in the fall of 1997. Two of the people who had been in the car on the night of the murders testified against Williams. However, several witnesses testified that Williams was in an East St. Louis bar that night, playing pool. The jury didn't buy the alibi and, after deliberating for five hours, convicted Williams on Sept. 12, 1997, on all four counts.

After the conviction, Williams' lawyer, a private criminal-defense attorney, died. Sentencing was delayed for a year and a half until March 29, 1999 -- that's how long it took the Madison County public defender's office to get up to speed in the case. Williams received two concurrent life sentences and two years in prison on the contributing convictions.

Williams appealed, and in April 2003, the Illinois Supreme Court reversed the convictions and ordered a new trial, ruling that prosecutors violated the speedy trial act when they charged Williams with the Patterson murder. The court said the murder charge should have been brought when the initial charge against Williams -- contributing to the delinquency of a minor -- was filed. The two charges, the court noted, stemmed from the same incident.

Justice Thomas Fitzgerald wrote: "The harm in a contrary result is obvious: a trial by ambush. The State could lull the defendant into acquiescing to pretrial delays on pending charges, while it prepared for a trial on more serious, not-yet-pending charges. . . When the State filed the more serious charges, the defendant would face a Hobson's Choice between a trial without adequate preparation and further pretrial detention to prepare for trial."

In other words, the court found that prosecutors hadn't played fair by waiting to bring the Patterson murder charge. Not only were the stakes for Williams raised from the delinquency-related charge to murder, but when he faced two charges of murder, he faced a possible life sentence.

After the convictions were thrown out, prosecutors charged Williams again for the Womack murder, as well as two charges of contributing to the delinquency of a minor. Williams was transferred from the Menard Correctional Center to the Madison County Jail. On July 31, 2003, he was back in court to be arraigned on the new charges. Standing alone before Associate Circuit Judge James Hackett -- Williams did not have a lawyer at this point -- Williams again asked to go to trial.

Later his case was assigned to Circuit Judge Ann Callis. John Rekowski, the chief public defender for Madison County, was appointed to take the case.

Although Williams had asked for a speedy trial, Rekowski waived his client's right the next month, without getting Williams' consent or bothering to bring him to court. Rekowski or other lawyers in his office would go on to waive Williams' right to a speedy trial at least eight more times.

Each time, the delay was attributed to Williams -- even though he hadn't consented.

In fact, Williams repeatedly raised the issue with the court. In letter after letter, Williams asked Callis not to continue his case. "I want my speedy trial and that I do not want any continuances," Williams wrote. "Your Honor, I can't understand why the court would allow attorneys [to] continue clients' cases without their clients being present or agreeing to continuances. I never agreed to any continuances nor [does] my so-called attorney ever tell me anything in the case."

There's nothing in the court file that indicates whether Callis considered the letters or motions Williams filed without his lawyer's assistance.

When he was asked by Illinois Times how he could waive his client's right without his client's permission, a right rooted in the Constitution, Rekowski fumed.

"My blood pressure just went up 25 points with that line," he said.

"To have a reporter tell me about the Constitution just borders on arrogant. Don't tell me about what the Constitution says -- I've been here defending it for a damn long time."

It's no secret that public defenders' offices in Illinois are "grossly understaffed," contributing to clogged court dockets, says Charles Fasano of the John Howard Association. And it's no secret that many defendants don't mind waiting as long as they can to go to trial. That's what makes Williams' case stand out.

"Usually guys will try like hell to delay it," Fasano says. Part of what is driving many delays is a recognition that in the county jail, the detainee is closer his or her family. The state pen, on the other hand, can be tougher to get to for visits.

For most defendants -- especially those who expect to be convicted -- it really doesn't matter, Fasano says. "Most guys are relatively content to sit there." The inmate still gets credit for the time he or she has served.

Still, Fasano says, it's shocking that Williams hasn't been to court in a year -- especially because the Madison County courthouse is less than a block from the jail.

In Cook County, 1,000 to 1,500 inmates are transported to court each day, he says.

"The bottom line is that the judges have to exercise responsibility to keep things on track," Fasano says.

In Sangamon County, Otwell says, the pretrial-detention cases "are the high-priority cases. It is a liberty issue."

Like other rights in the Constitution, the right to a speedy trial can be waived. One of the best-known rights is the "right to remain silent." That doesn't mean a crime suspect can't confess, it just means that the police are supposed to read a Miranda warning first. That way, the suspect understands what he or she is giving up before talking.

And with the right to a speedy trial, many criminal-defense attorneys gain more time by asking their clients to agree to continuances.

Otwell says that in his office, if the public defender believes that a continuance is needed, either because he or she is waiting for evidence or as a strategic maneuver, the client's permission to stop the speedy-trial clock is sought. Usually the client agrees.

But if the client doesn't want to waive the right, Otwell says, and the lawyer still believes it is in his client's best interest to continue the case, the question will be turned over to the judge to decide. The lawyer will give a reason for the need and also note the client's refusal. The client is brought to court for the proceeding -- and all scheduled court appearances, Otwell says.

Otwell adds that he is unfamiliar with the Williams case.

"Knowing John [Rekowski], I would certainly give him the benefit of any doubt that he's handling the case properly," Otwell says.

It wouldn't be the first time that the Madison County public defender's office has been given the benefit of the doubt when it comes to delaying a client's case without consent.

As recently as May 2003, just a month after the Supreme Court ruled on Williams' appeal, the 5th District Illinois Court of Appeals was asked to look at the delays in a different criminal case handled by the Madison County public defender's office.

The case, The People of the State of Illinois v. Chester O'Quinn, involved the appeal of an inmate who was locked up in the Madison County jail shortly after Williams arrived. On Halloween 1997, O'Quinn was charged with first-degree murder in the death of his girlfriend's 13-month-old son. It was alleged that O'Quinn had abused the infant, who died of a closed-head injury caused by vigorous shaking of his head, or shaken-baby syndrome.

Six days after being charged, O'Quinn filed a motion for speedy trial. Eight days later, he was indicted on three counts of first-degree murder. O'Quinn was represented by Rekowski and another lawyer in the public defender's office, Neal Hawkins. Although O'Quinn wanted his speedy trial, the Madison County public defender's office waived the right -- for three-and-a-half years. The court approved at least 28 separate continuance orders.

Justice James K. Donovan wrote, "Unlike other cases where some of the delay is attributable to the State, defense counsel here requested every continuance from the first one on Dec. 8, 1997, to the last one on March 12, 2001. We can find no basis in the record for why so many continuances were requested." The case wasn't tried until April 2, 2001, and O'Quinn was convicted on three counts of first-degree murder.

Although the majority of the court was disturbed by the three-and-a-half year delay, the conviction was affirmed.

But a stinging dissent was filed by Justice Clyde Kuehn, who noted that O'Quinn "rang in the New Year four times, confined to a jail cell, before authorities attended to the business of deciding his guilt or innocence."

Kuehn noted that although the Madison County jail "is a fine facility," it doesn't have any ground for recreation, contains no windows, and offers no activities to pass the time.

"I wonder if any of us could say that we would be unharmed by being confined there tomorrow to await a trial set for November 2006."

Byron Williams, clad in black-and-white striped prison garb, greeted a reporter on a recent Saturday from behind bullet proof glass in the Madison County jail. Speaking into the two-way telephone receiver, the man who spent seven years behind bars spoke about his frustration.

He was frustrated with a lawyer who he said hadn't talked to him or returned his phone calls in months. He was frustrated with the repeated continuances his lawyer had requested of the court. He was frustrated with the fact that he hadn't been to court just around the block from the jail in almost a year and dismayed that the judge in his case ignored his letters.

But things were about to change for Williams.

On Monday, July 19, Illinois Times interviewed Rekowski about Williams. Two days later, Rekowski visited his client in the Madison County jail to discuss the case.

On Thursday, July 29, almost one year since he'd last been to court, Williams went before a judge. This time, lawyer and client were on the same page. Rekowski wanted one more delay in his client's case. This time, Williams agreed.

But Williams received something in return.

The case is now set for trial in mid-October, a date that's "certain" -- which means it is the best a lawyer can finesse. And, Rekowski claims, Williams' case has been "moved to the top of the pile."

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