A Year is too long to wait for a Criminal Trial

During the last 10 years of my judgeship, I spent eight and half years hearing nothing but felony criminal cases. I frequently looked over computer printouts to see how expeditiously I was disposing of my cases.

Our assignment system was very simple: If a defendant was arrested this week, the associate judge who handled his preliminary arraignment would set his formal arraignment and preliminary hearing for the next Tuesday. That would be within eight days from his initial court appearance. We called this “Preliminary Hearing Day.”

There were two circuit judges who took the cases over for formal arraignment and preliminary hearings. We alternated weeks. If I took preliminary hearings the first week, Judge X took them the second week. I’d then take them the third week, and he’d take them the fourth week, and so on.

A preliminary hearing is a hearing to determine if there is probable cause to justify holding the defendant either in jail or on bond until trial. It is a safeguard against the defendant being held on a baseless charge.

At the hearings, one of four things happened. Either we conducted a brief preliminary hearing, the defendant waived preliminary hearing, the prosecutor dismissed the case, or a preliminary hearing was (rarely) continued for one week.

Every Tuesday about 30-35 preliminary hearings were set. It was a hectic morning. Between 8 a.m. and noon, we had 240 minutes to handle 35 cases, or 7 minutes per case. Most defendants waived preliminary hearing.

Normally, we conducted an average of five prelims each Tuesday. If the defendant waived, or if I found probable cause, I would then enter our standard pretrial order, which provided:

1. The state would furnish standard Supreme Court Rule (SCR) discovery to the defendant within 17 days.

2. The defendant would furnish standard SCR discovery to the state within 21 days.

3. An early day to plead guilty would be set 45 days after Preliminary Hearing Day.

4. The last day for negotiated pleas would be Thursday before trial. Trial was set for Monday, 60 days after Preliminary Hearing Day.


The purpose of setting firm plea dates and trial dates was to keep the cases moving. Every Tuesday, about 35 new felony cases came into the system. That means I had two weeks to dispose of 35 new or old cases. If 35 came in for preliminary hearing, and I only disposed of 17 before my next Preliminary Hearing Day, I was creating a backlog.

During my preliminary hearing (or non-jury) week, my schedule was very busy: Tuesday morning, prelims; Thursday morning, final plea date; Friday morning, early plea date.

The remainder of my non-jury week was spent hearing bench trials, motions to suppress evidence or confessions, probation revocations, motions to set aside pleas of guilty, post-trial motions, post-conviction hearings, and motions to determine if a defendant was fit to stand trial.

The weeks between prelim weeks were jury trial weeks.

Most cases were disposed of by plea, either on the early or final plea day. I would normally end up with about three cases that required jury trial. If I knew that one case would take the whole week, I’d take the most important case, and ask Vicki, the chief judge’s administrative assistant, for help to handle the others. Vicki never let me down.

I loved doing jury trials. For me, it was the best and most exciting part of being a judge. The system we used, outlined here, I created after Chief Judge Jeffrey O’Connor assigned me as presiding judge of the Criminal Division.

The system was designed to handle the routine cases. If a case had to be continued, I would continue it for two weeks. Each additional continuance was also for two weeks.

I cannot recall ever giving more than three two-week continuances (except where the defendant could not be tried because he was mentally unfit to stand trial).

I never had time to check on how fast other judges were moving cases. But I ran periodic checks on my own docket. From prelim day to “disposal,” my average time of disposition was 45 days. That included murders and other major cases.

For me “disposal” meant dismissal, plea of guilty, or first day of trial. Murder trials almost always took somewhat longer. But the average was brought down by pleas entered even before the early plea date.

A first offender, who had negotiated his case for probation, wanted to plead early and get out of jail. That helped my average.

So, in the 18 years since my retirement, something has changed for the worse.

Posted: QCOline.com   January 17, 2019
Copyright 2019, John Donald O'Shea

Justice Delayed is Justice Denied

I became a judge in December 1974. A few days later, all the newly minted judges throughout the state were summoned to attend a new judge’s seminar run by the Hon. Roy O. Gulley.

We were there to learn how to be judges. Gulley had been elected as a circuit judge in 1957, and appointed by the Illinois Supreme Court in 1968 as the court’s administrative director.

Judge Gulley told us in no uncertain terms that a judge had administrative as well as judicial duties. He cited Illinois appellate and Supreme Court cases which told us being a judge meant more than “sitting on the bench and looking like a wise old owl.”

We were not to “sit in our black robes” looking like “alabaster busts of our grandsires.” A judge was not a “mere referee,” he was the “governor of the trial.” In unequivocal words, he told us that we had an non-delegable duty to see that cases moved in a timely fashion to completion.

Cases should be continued only for reasons unforeseeable at the time they were set. “Justice delayed, is justice denied.”

Judge Gulley’s remarks made sense, I had no doubts that what he told us was right. My earlier experiences in the state’s attorney’s office confirmed that he was.


When I came into the prosecutor’s office in September of 1966, none of the judges were doing what Gulley said we needed to do. When a defendant was arrested pursuant to a grand jury indictment, at his arraignment the judge entered of plea of “Not Guilty” for him and ordered, motions to be filed within 10 days. There, judicial administration ended.

Once the judge said, “Motions to be filed within 10 days,” the judge seemingly divested himself of his administrative duty to see that the case moved forward in a timely fashion. That was left to the state’s attorney.

The big problem was that with no judge pushing the case for trial, once the defendant made bond, in most instances the defendant didn’t care if the case ever got tried! Without the court setting a trial date, that was left to the state’s attorney.

But as prosecutors, we had a tendency to want to try the good cases, and to let the “dogs” lie. But once the state’s attorney set the case for trial, defense counsel, whose client was on bond, would then begin filing a blizzard of motions.

A week before the trial date set by the state’s attorney, the defendant would finally file his motion for discovery, and a motion for a bill of particulars. The trial would be continued until the motions were heard, allowed and complied with.

The state’s attorney would then set a new trial date. Then just before the second trial date, defense counsel would file a motion to suppress the defendant’s confession. The trial would again be continued, the motion heard, and, if denied, the state’s attorney would eventually get around to setting another new trial date.

Then, just before the third trial date, defense counsel would file a motion to suppress the evidence as illegally seized. The trial would again be continued, the motion heard, and if denied, the state’s attorney would eventually get around to setting a third trial date.

To get additional continuances, the defense attorney could trot out motions to suppress the eye-witness identification, and motions to continue — because his Aunt Matilda died, or his dog had been run over by a car.

The result was a case that should have been disposed of in 60 to 90 days, took six months or a year.


When I set up our criminal division, I took over the scheduling for my court. I kept my own scheduling book. When the attorneys wanted to set a hearing, they came to me, told me why they wanted time, and how much time they thought they’d need.

They would often suggest a short date when they were both available. Once we set a case, it was continued only for something that came up that couldn’t have been foreseen at the time the matter was set.

Over the years, we got very good at estimating how long a hearing would take. The most common reason for a motion hearing going off was because the defendant decided to plead guilty instead. Firm settings move cases.


Judge Gulley nailed it.


Posted: QCOline.com   January 10, 2019
Copyright 2019, John Donald O'Shea

3 Unchanging Principles for Handling Criminal Cases

I spent 8.5 years of the last 10 years of my judgeship handling felony cases in the Criminal Division of the Rock Island County Circuit Court.

In the 18 years since, I have written only once about the business of my old court to show the difficulties facing the judge in a particular highly publicized case.

Two things have now moved me to write about the handling of criminal (felony) cases here in Rock Island County.

First, it seems that there are daily news accounts of shootings in our Illinois Quad-Cities.

Second, in visiting with people I trust, who spend a lot of time around the county criminaldivision, I have been told:

— It now takes a year to dispose of a case;

— The circuit court judges don’t want to be assigned to the criminal division;

— Nobody wants to try cases; they want to negotiate the cases instead.


Before writing this, I decided to verify what I had been told. I did so by checking the dispositions of cases filed in January of 2018, the first 97 cases filed in 2018.

From past experience (in checking dispositions of my own cases), I felt that checking all the cases filed in the first month of 2018 would given me a fair representative sampling.

Of the 97 cases filed in January 2018, here’s what I found:

1. One case is stayed until the defendant is restored to “fitness.”

2. 36 cases still were pending/undisposed of as of Dec. 20, 2018.

3. 10 were dismissed — without any other dispositions on other counts.

4. 14 cases utilized more lenient “alternative dispositions;” i.e., judgments were withheld, or where defendants were placed in an offender initiative program.

5. 36 cases ended with a plea of guilty to at least one count. Of those 36 cases, 14 ended with probation, 13 ended with conditional discharge (probation without a probation officer) and nine ended with a prison sentence.


As I studied the computer printout of the criminal cases filed in January 2018, certain facts stood out:

1. Not one of the 97 cases appears to have gone to jury trial or bench trial.

2. 36 out of 97 cases are still pending — nearly a full year after they were filed!

3. The 36 cases disposed of by pleas of guilty all appear to be the results of negotiated pleas.

So based on the foregoing, what concerns do I have based on my experiences?

Principle No. 1: If a judge starts the year with 100 cases on his docket, he wants to end the year with 100 or less cases on his docket. If 100 new cases are filed each month, the judge must dispose of 100 (new or old) cases each month.

If on Jan. 1, you have 100 cases on your docket, and 100 more are filed in January, if you dispose of only 64, on Feb. 1, you will have 136 cases on your docket.

If that pattern holds (you fail to dispose of 36 cases each month), by April 1, you will have 208 cases on your docket, and by year’s end you will have 532.


Principle No. 2: Getting an acceptable negotiated plea requires that judges and prosecutors be able and willing to take/force cases to trial. If the defendant makes bond, why would any defendant or his attorney care if the case ever gets to trial?

If defense counsel knows that the prosecutor is unable or unwilling to try his case, what incentive is there for the defendant ever to seriously negotiate or plead guilty?

Defendants plead when they know that the prosecutor is ready and willing to try the case, and the client may get hammered by the judge if the defendant is found guilty at trial. Without these two realities, why would any competent defense counsel ever plead his client guilty — unless the plea results in the prosecutor effectively “giving away his case?”


Principle 3: It is up to the judge to move the cases on his docket. Defense counsel has no incentive to force his defendant’s case to trial, unless his client is sitting in jail, and will spend more time in jail awaiting trial, than he is likely to get if he pleads guilty.

And if the prosecutor is allowing his own case load to increase by 36 a month, why is there any reason to believe that he will be sufficiently diligent to do the judge’s job as well as his own?


My next two op-eds will deal with the role of the judge in the disposition of cases.

Posted: QCOline.com   January 3, 2019
Copyright 2019, John Donald O'Shea