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April 26, 1996


Appeal from the Circuit Court of Madison County, Illinois. No. 92-CF-1090. Honorable Charles V. Romani, Jr., Presiding Judge.

The Honorable Justice Kuehn delivered the opinion of the court: Maag and Chapman, JJ. concur.

The opinion of the court was delivered by: Kuehn

The Honorable Justice KUEHN delivered the opinion of the court:

On April 20, 1996, Norval Wells Jr. awoke in a jail cell. His day, like every day since July of 1992, was the same. He saw the same walls, breathed the same silent air, and retired to the same cot in a small corner of the world where the State of Illinois has kept him for over 1,300 days. April 20, 1996 was different for Mr. Wells, although he did not notice the difference. It was the day we advised that, absent some showing of compelling reasons, he could no longer be legally held prisoner. He is still in jail.

We are again presented with a cry for freedom. It is a disturbing cry for it sounds today more like a cry for justice. We believed, when we earlier addressed the further pretrial imprisonment of Mr. Wells, that we might be called upon to revisit the issue. See People v. Wells, 664 N.E.2d 660, 279 Ill. App. 3d 564, 1996 Ill. App. LEXIS 251 (1996). We could not, however, have anticipated what we are now presented.

The release of a man charged with murder, even when the law clearly mandates it, is not an easy task. It is a most serious decision, never taken lightly. A criminal charge carries the imprimatur of decent and dedicated officials working to bring criminals to justice.

We were reluctant in our initial review of this issue to order the immediate release of defendant, despite a record that supported his request for release. An absence of reasons to compel his further pretrial detention pending this appeal entitled him to release. 145 Ill. 2d R. 604(a)(3); Wells, No. 5-96-0076.

Because the State asserted that its ability to prove the defendant's guilt was irrelevant to a request for prolonged imprisonment pending appeal; because the trial court agreed and announced that it would not consider the weight of the evidence upon which the charge was predicated; because no thought was given to the possibility that indeterminate pretrial imprisonment might rest upon a charge incapable of producing conviction; we remanded to allow the State to cure what seemed an oversight in its interpretation of the rule. We extended the State 7 days to present some evidence to establish that the charge was not baseless and that continued confinement was justifiable. The State was given an opportunity to present reasons that compelled Mr. Wells' further confinement pending its appeal.

The State did not attempt to show that reasons compelled further confinement. It allowed the basis of its charge to remain obscure. The means by which it plans to convert accusation into guilt remains a secret of the State. Its enigmatic silence on the subject endures.

The State allowed 7 days to pass without addressing any of our concerns. No hearing was called and no effort was made to cure the deficient record. It remains devoid of any evidence to support the legitimacy of the charge. Nothing was presented, not one shred of evidence, to allow us to measure the likelihood of conviction at the end of defendant's years of pretrial imprisonment.

We have already expressed our concern that the State appears to confuse its power to accuse with a power to punish. Wells, No. 5-96-0076, slip op. at 2. Norval Wells Jr. stands convicted of nothing despite his pretrial detention for almost four years. The State, obviously intent on maintaining its hold, asks us to sanction additional lengthy pretrial imprisonment on faith that its power to accuse is enough. We decline the invitation to walk through the looking glass.

"The Queen observes that the King's Messenger is 'in prison now, being punished; and the trial doesn't even begin till next Wednesday; and of course the crime comes last of all.' Perplexed, Alice asks, 'Suppose he never commits the crime?' That would be all the better, wouldn't it?, the Queen replies." Note, United States v. Salerno: Pretrial Detention Seen Through the Looking Glass, 66 N.C.L. Rev. 616, quoting L. Carroll, Through the Looking-Glass and What Alice Found There 75 (1902); L. Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 374-75 (1970).

The right to speedy trial is fundamental with its English roots in the 1166 Assize of Clarendon and the 1215 Magna Carta. Klopfer v. North Carolina, 386 U.S. 213, 223-24, 18 L. Ed. 2d 1, 8, 87 S. Ct. 988, 993-94 (1967). By the late thirteenth century, justices were visiting the countryside three times each year -- approximately every 120 days, in an effort to bring each prisoner speedy justice. Klopfer, 386 U.S. 213 at 223, 18 L. Ed. 2d 1, 8, 87 S. Ct. 988, 993-94, quoting E. Coke, The Second Part of the Institutes of the Laws of England 43 (5th ed. 1797).

The rights expressed in Supreme Court Rule 604(a)(3) protect against potential abuse of the power to accuse and detain, when the statutes designed to guard against delays in trial do not restrain that power. 145 Ill. 2d R. 604(a)(3). Normally, a pretrial prisoner cannot languish in prison awaiting trial for more than 120 days unless he causes a delay. 725 ILCS 5/103-5(a) (West 1994). However, when the State occasions delay in trial by pursuing an interlocutory appeal, speedy trial rights are suspended. Hence, a pretrial prisoner is granted the right to release when the State ...

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