A vital position in Illinois’ criminal justice system is about to change hands; yet you (and most potential candidates) are probably reading about this job opening for the first time right here.
Come January 1, we likely will have a new head of the Office of the State Appellate Defender (OSAD). This is the man (so far it’s always been a man) who oversees an agency of approximately 230 employees, mostly lawyers, who handle appeals for criminal defendants who cannot afford their own lawyer. With an annual budget of approximately $20 million, the office handled about 2500 new cases in the fiscal year that ended June 30, and had approximately 5700 cases pending on that date.
OSAD has had only two leaders since it was established in 1973; the leader, called the State Appellate Defender, is appointed by the Illinois Supreme Court. In September, the current State Appellate Defender, Michael J. Pelletier, announced that he would retire at the end of the calendar year. Given the importance of the job, combined with the serious problems likely to be facing the agency (which we’ll get to in a minute), you’d think that the Supreme Court would have worked to garner a large and notable group of applicants to choose from.
That is what Cook County Board President Toni Preckwinkle did in 2015 when the similarly important job of Cook County Public Defender became vacant. Preckwinkle and her staff commissioned a search committee headed by Appellate Court Justice Joy Cunningham. The committee cast a wide a wide net, sending notices to six area law schools, three diverse bar associations, plus a social justice research group, which also was asked to contact others and get names from them.
“We didn’t just ask people to put up a notice saying there was an opening; we asked them to actively seek out people and refer them to us.” says Rebecca Janowitz, special assistant for legal affairs at Cook County’s Justice Advisory Council. The combination of publicity and outreach resulted in applications from scores of candidates.
But that’s not what happened when Pelletier announced his retirement. A brief notice with a short due-date was posted on OSAD’s website and on its internal network, and also sent to many legal websites such as the Chicago Daily Law Bulletin and the Illinois State Bar Association. But there was no outreach. No law schools or public interest groups were contacted and asked to submit names. Nor were national criminal defense groups contacted. The result was that instead of netting scores of applicants, the Illinois Supreme Court received only five.
Besides assuming an important role in the Illinois criminal justice system, the new State Appellate Defender will face serious issues. First, Pelletier has confirmed that OSAD is so overwhelmed with cases that it is not filing opening briefs until roughly 21 months after the client has been convicted and sentenced, which is roughly 20 months after a notice of appeal is filed.
The result is that clients typically wait two and a half years or longer before their criminal appeal is resolved. This delay is a serious problem, as OSAD knows full well.
More than 20 years ago, a federal court called the backlog of cases waiting to be briefed in OSAD’s First District “excessive and inordinate,” finding that it contributed to such an excessive delay in the court’s deciding the defendant’s appeal that it was “presumptively unconstitutional.” But OSAD’s backlog at that time was 18 months from the notice of appeal to the opening brief; not the 20-month delay that exists today.
The cause of the delay, the federal judge concluded then, was chronic underfunding of OSAD, which had caused OSAD’s First District to be overwhelmed with more appointments than its staff could timely handle.
According to Locke Bowman of the Roderick and Solange MacArthur Justice Center, who was lead counsel in Green v. Washington, the State responded by substantially increasing OSAD’s funding, so that more staff were hired and the backlog was reduced.
At least for a time the backlog was in check. But the unpublicized backlog of 21 months from sentencing to opening brief shows that the severe backlog has returned. Delays in resolving appeals are particularly outrageous, the federal court noted, because the defendants may have served their entire sentences before their appeal is resolved.
That problem is more than just theoretical, even now as sentences have gotten longer and harsher. Just recently an OSAD lawyer told me that the last two cases he won were on behalf of clients serving sentences of seven and ten years’ imprisonment but eligible for day-for-day credit. Both clients had been released from prison by the time the Appellate Court ruled in their favor.
As the problem of delay continues, a looming issue could make things worse. A little-noticed recent jury verdict resulted in a $1 million award against OSAD. It seems that when Pelletier became head of OSAD in January 2008, he demoted long-term employee Alice Washington and then gave her the choice of resigning or being fired. Ms. Washington responded by suing Mr. Pelletier and OSAD in several forums and on several theories.
The suits dragged on but eventually Washington won the jury verdict in federal court on the theory that Mr. Pelletier had retaliated against her for filing an internal grievance in which she complained about his lowering her salary. U.S. District Judge Rebecca R. Pallmeyer of the Northern District of Illinois denied the defendant’s motion for a new trial and is still calculating one element of damages; but that decision will not greatly change the $1 million price tag. Along the way, Pallmeyer has urged the parties to settle, but Pelletier has vowed to appeal.
Unless the U.S. Court of Appeals for the Seventh Circuit reverses the jury verdict, it’s likely that OSAD will face a budget crisis. That’s not going to make it any easier for the new agency head, chosen from a group of five in a selection process taking place under wraps.
Amy Campanelli, the lawyer chosen to be Cook County Public Defender in 2015, often talks excitedly about the process that led to her selection, and she is by all accounts a bold and innovative leader of her office. The new State Appellate Defender could use that kind of boost; let us hope he finds it by another route.
Jean Maclean Snyder is a Chicago lawyer who has been active in seeking criminal justice reform, especially of the prison system. This is her first contribution to Injustice Watch.