The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
This proposed class*fn1 action challenges some procedures of the Central Bond Court in Cook County.
About eight years ago, the Presiding Judge of the First Municipal District of Cook County created, by order, the Central Bond Court. Except for cases where the prosecution seeks denial of bond for persons charged with non-probational felonies, all bond hearings "shall be conducted by means of closed circuit television."
On each court day, about 100-150 bond applicants are taken from Chicago Police lock-up to holding pens in the basement of the Criminal Courts building just below the courtroom housing the Central Bond Court.
The holding pens for men are crowded well beyond their capacity. Prisoners are unable to sit, the sick and infirm are not isolated, noise levels are too high, and, at times, temperatures are uncomfortable. The great majority of people are represented by the public defender and have no chance to speak with a lawyer before their cases are called. Instead, each is briefly interviewed by a defense investigator who calls each one forward by name and records information about their residence, employment, family and military service. The information is given to the assistant public defender assigned to the bond court. The crowded conditions preclude private, confidential interviews. Moreover, the investigators, usually two or three, are allowed only 105 minutes to interview 100-150 prisoners.
As the hearings begin, the prisoners are led into a small room with a podium. There is a camera fixed on the podium that transmits the prisoner's image to the courtroom. The judge appears to the prisoner on the screen of a monitor facing the podium.
In the courtroom, an assistant public defender and an assistant state's attorney stand before the bench at the hearing. The judge and spectators see the defendant's image. The lawyers can see the image as well, though they have to move a step back and look to the side to do so. In the basement, another assistant public defender is stationed near the podium.
In the basement, the defense counsel does not speak to the Court, but simply gives the defendant a note containing the next court date and signals the defendant to remain silent and to move away when the brief hearing is over.
In practice, defense counsel is sometimes absent from the basement; the video images at both sites are grainy and poor. The usual hearings are short-30 seconds or less. The prosecutor states the charges, and the judge makes a finding of probable cause. The prosecutor asks for high bond, reciting, if possible, prior criminal history and prior failures to appear. The public defender uses the information in the chart to ask for a lower bond. The judge sets bond and continues the case for two to three weeks. As in most courts, including this one, bond hearings are very short. In Central Bond Court, they are sometimes so fast that "it is not uncommon for the proceedings to commence" before the next defendant gets to the podium.
All of this, asserts Plaintiff, denies defendants any meaningful chance to inform the Court of information, such as an error in criminal history, that might lead to a lower bond or recognizance bond. The physical circumstances of the hearing encourage defendants to believe they have no right to speak, and the few who do are silenced by the Court. Moreover, it is said that research shows that seeing defendants on television rather than in person "may negatively prejudice the judge against the bond applicants." A judge may also miss signs of injury or illness in a defendant. Whether any of this is true remains to be seen, but it is alleged here and has been alleged before. See United States v. Baker, 45 F.3d 837 (4th Cir. 1995) (assessing the use of video cameras, microphones and televisions in commitment hearings).
The proposed class representative was arrested and charged with possession of a stolen car. At filing, he had not yet had his bond hearing.*fn2 He alleges that it would be possible, without much cost, both to conduct bond hearings with defendants physically present and to provide defendants with a meaningful opportunity to consult with counsel.
The complaint asks for declaratory and injunctive relief on due process and Sixth Amendment grounds; there are four counts in all.
This lawsuit is directed at the conduct of proceedings in a state's criminal courts, which, as to Plaintiff and every likely member of the class, are ongoing. Federal courts traditionally rule on state practices only after trial and appeal remedies are exhausted, and then generally only by invalidating a judgment of conviction. As definitions of constitutional rights expanded and federal reviewing courts began to invalidate long-accepted state practices in the early 1960s, federal courts were asked to enjoin state criminal court practices. These efforts were, in the context of the judicial decision-making process, very quickly quashed.
Younger v. Harris,401 U.S. 37 (1971) and its progeny "espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). The Younger Court instructed that "courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an ...