Cook County’s top juvenile court judge is pre-screening which detention release motions make it to court, raising a major hurdle for attorneys trying to free their young clients from juvenile detention amid the coronavirus outbreak.
Illinois law states that juveniles can’t be detained for more than 30 days awaiting trial, except under specific circumstances. But Juvenile Justice Division Presiding Judge Michael Toomin has said that rule is no longer in effect given an Illinois Supreme Court order that suspended the right to a speedy trial in both adult and juvenile court due to the pandemic.
Toomin has told defense attorneys that the court won’t hear any motions mentioning the 30-day rule, as it is known. He maintains that authority was granted to him by an order from Chief Judge Timothy Evans that gave presiding judges the right to determine what constitutes an emergency motion.
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“I’m the one who has to determine which motions are emergency motions, which I do on a daily basis,” Toomin said in an interview with Injustice Watch.
After an Injustice Watch reporter asked if Toomin was correctly interpreting Evans’ order, a spokesman for the chief judge said Evans plans to issue an amended order Friday clarifying that “Juvenile detention hearings, including all motions to review detention, and other emergency matters will be conducted daily.”
Defense attorneys say Toomin is misinterpreting both the State Supreme Court and chief judge’s orders and that it is making it more difficult for them to advocate for their clients to be released from the Juvenile Temporary Detention Center, where 168 youth were held and more than a dozen staff and youth had tested positive for coronavirus as of April 27.
“From what I understand, Judge Toomin was interpreting the Supreme Court order that suspended the continuation of the speedy trial term as also applying to this 30-day time period,” said Lester Finkle, Public Defender Amy Campanelli’s chief of staff. “We disagree with that.”
Though both rules are in the same section of the Juvenile Court Act, they have different time limits and different remedies, Finkle said.
The Illinois Supreme Court suspended the speedy trial rule in adult court on March 20, but did not initially mention juvenile court. The Court issued an amended order on April 7 that did include juvenile court, but it did not mention whether it also applies to the 30-day rule. A spokesman for the Supreme Court did not immediately respond to a request for comment.
In an April 21 order in one case, Toomin articulated his position that the Supreme Court and Circuit Court’s orders prevented the youth’s attorney from petitioning for his release on the basis of the 30-day rule.
“Although this court is sympathetic to Minor Respondent’s plight, in view of the global coronavirus pandemic and the declared state of emergency to protect the health and safety of the public, the guideposts directed by our leaders must be followed,” Toomin wrote. He did not allow the motion to even be heard in court.
Between April 1 and 27, 96 youth were released from the juvenile detention center but another 92 were admitted, according to an Injustice Watch analysis. About one-fifth of the youth at the juvenile center have cases in adult court and are not subject to the 30-day rule.
Defense attorneys have taken issue with Toomin’s interpretation that Chief Judge Evans’ order allows Toomin to pre-screen which motions will be heard in court, especially since the order is not being interpreted that way in most adult criminal courts, and judges in adult court are not denying filings based on certain arguments, attorneys said.
“I’ve never experienced a presiding judge blocking pleadings or preventing arguments before you even get to court,” said defense attorney Cristina Law Merriman. “If you don’t get a court date, then there is no record.”
She’s concerned that the pre-screening process, which would not be reflected in court documents, could have a long-term detrimental effect on appeals, which rely on the arguments contained in the court record. “If you forfeit an argument at the trial level,” Merriman explained, “then you don’t get to argue that issue on appeal.”
Merriman said she filed several motions earlier this month for a client who was held at the juvenile detention center for being in a stolen car, a non-violent misdemeanor. When she mentioned the 30-day rule in court, her filing was rejected, according to Merriman.
Supervisors at the Public Defender’s Office have instructed attorneys to avoid any mention of the 30-day rule in written filings. As a result, they’ve had more success in getting detention reviews, Finkle said. Since last Friday, all 16 motions for detention release have gone before a judge, according to Finkle.
Merriman was finally able to get her client released after she argued that 30 days in detention was itself the maximum penalty for his offense.
“That’s the argument that I think won it,” she said. “I’ve never had to make that argument, and I’ve never had a young person in custody for a misdemeanor this long.”