Justice delayed: It took two years to overturn his gun conviction. He’s still in prison a year later.
The glacial pace of deciding appeals in Cook County criminal cases means some finish their prison terms, only to win an acquittal after they’re already free.
Jasper McLaurin had served two years of his prison sentence when the Illinois Appellate Court threw out his gun conviction.
But his long wait for that decision — twice as long as what the American Bar Association says appeals in criminal cases should take — didn’t end with him walking out of prison at that point in late 2018.
McLaurin remains in prison. He continues to serve out a seven-year sentence for carrying a handgun the police said they found when they pulled him over for a traffic stop.
That’s because Cook County prosecutors appealed his acquittal to the Illinois Supreme Court. As the clock keeps ticking on his appeal, McLaurin remains behind bars.
“People are wasting away in jail, waiting for their appeals,” says Steve Greenberg, McLaurin’s attorney.
In Cook County, defendants like McLaurin wait longer for a decision on appeals than anywhere in Illinois. About two-thirds of these appeals take longer than two years to complete. One in 10 appeals take longer than three years, according to the latest available court statistics.
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Though some might feel little sympathy for criminals, consider this sobering statistic: Fully one-third of those defendants who appeal their sentences eventually will prevail — with an outright acquittal, an order for a new trial or a modification of their sentence.
“If you want reform, you want to end misconduct and stop wrongful convictions, you have to pay attention to the appeals,” says Stephen Richards, a defense lawyer who has successfully appealed 11 murder convictions. “The appellate system keeps everyone honest.”
Because of the glacial pace of deciding appeals, though, some defendants end up completing their prison sentences before the justice system rules on their cases.
In the 1990s, a class-action lawsuit was filed by inmates, some who already had completed their sentences before their appeals were finished. The lawsuit prompted reforms that speeded the process only temporarily.
The issue has taken on new relevance with the Cook County state’s attorney’s office’s increased focus on uncovering wrongful convictions. Last year, Cook County led the nation in exonerations. That was thanks in part to the work of State’s Attorney Kim Foxx’s Conviction Integrity Unit.
Many of those exonerations involved decades-old convictions, though.
In appeals of convictions under Foxx’s own administration in recent years, the state’s attorney’s office routinely seeks extensions of 180 days or more to file court responses.
“The state’s ability to drag out appeals has become a serious problem,” says attorney Jon Loevy, who represents clients in wrongful-conviction cases. “From the state’s perspective, there is no rush at all. People asserting that they should not be in prison have to continue sitting in prison while waiting for the appeals to run their course. The state has no incentive to do anything on time.”
The delays come down to money, according to attorneys familiar with the appeals system. The Office of the State Appellate Defender, which represents indigent inmates in Cook County, and the state’s attorney’s appeals division both face financial constraints.
And that leads to delays. The state appeals court for Cook County disposed of more than 1,300 criminal cases in 2018. Two-thirds of those took at least 782 days to complete.
The American Bar Association says a typical criminal appeal should take about half that time. It says prosecutors and defense attorneys should take no longer than 50 days to file their briefs, for example.
To speed appeals, the Illinois Supreme Court requires attorneys to give written explanations whenever they ask for extensions to file arguments.
In one filing last fall asking for a 180-day extension, Alan Spellberg, deputy supervisor of the criminal appeals division for Cook County’s state’s attorney, said his office had a backlog of more than 200 cases not assigned to attorneys. He said that was up from a backlog of 100 cases the year before.
Spellberg wrote that his office was “understaffed and shorthanded.” He told the appeals court it had only 39 full-time assistant state’s attorneys and 11 part-timers, compared with 79 attorneys in 2010, according to a report by the Chicago Law Bulletin, which quoted Spellberg saying he would need 105 attorneys to be fully staffed.
Richard Dvorak, an appellate lawyer, represented a woman appealing a conviction for spitting on a police officer. She got probation. Dvorak filed the appeal in August 2018. The state’s attorney’s office asked for three extensions before a final deadline of May 2019 was set.
“They just ignored that final deadline,” says Dvorak, who, after waiting six months, asked the appellate court to decide the case without the state’s response.
The state’s attorney cited understaffing as the reason for the delay and said it would reply no later than this past Dec. 31.
“Well, we’re three weeks into January, and they still haven’t filed,” Dvorak says.
“It’s a fixable problem,” he says. “All you need to do is transfer attorneys from somewhere else to do the work and address the backlog.”
Responding to questions about the manpower figures, Tandra Simonton, a spokeswoman for Foxx, says: “We regularly evaluate our staffing levels relative to case activity, and, if appropriate, advocate for additional resources at both the county and state level to ensure that we fulfill the statutory mandates of this office.”
The Office of the Appellate Defender, which handles the bulk of criminal appeals in Cook County, has been chronically understaffed for decades, according to James Chadd, who took over the office in 2018, inheriting a backlog of 3,892 cases statewide. After three budget cycles with full funding, Chadd says the backlog is now 2,742 cases.
“That’s still way too much of a backlog,” Chadd says. “The problem is very serious, and we take it very seriously.”
Chadd says it typically takes his agency 17 months even to assign a case to a staff attorney — and then another month to file the appellate brief. That often means a case won’t be decided within two years.
“I’m optimistic that, with full staffing, we will continue to bring down that backlog,” Chadd says.
State officials dealt with a similar backlog in 1994, when the MacArthur Justice Center at Northwestern University Law School sued the state on behalf of hundreds of indigent inmates whose appeals were taking, on average, three years to be decided.
The late U.S. District Judge Milton Shadur, who heard that case, criticized the state appeals system in Cook County, noting that many inmates got out of prison before their appeals were even decided.
“There has been a systemic breakdown in the Illinois appellate system’s first district [in Cook County] for the large percentage of convicted defendants who cannot afford to hire private lawyers,” he wrote.
Shadur threatened to order the early release of inmates. Then, in 1996, he told the state to come up with a plan to cut the backlog in the state appellate defender’s office. State officials said they would increase the budget. But the chronic delays have continued.
Richards says new measures are needed, such as asking private attorneys to volunteer to work for free to reduce the backlog of appeals in Cook County.
Other states have enacted reforms to reduce delays in their appellate courts, according to the National Center for State Courts. In Colorado, the state created an incentive for court reporters to turn in trial transcripts on time: They get paid less for being late turning in these documents, which are key to appeals.
Colorado also boosted funding for appellate prosecutors and defenders. Attorneys were discouraged from filing long briefs. Judges barred attorneys from getting extensions of more than a year to file legal briefs.
McLaurin, whose appeal was heard by the Illinois Supreme Court earlier this month, wishes the appeals process would move more quickly. He remains locked up in Centralia Correctional Center, awaiting a supreme court ruling, more than a year after winning his appeal on his gun conviction before the Illinois Appellate Court.
“I just want to get out of here,” he says.
McLaurin, 33, was convicted of illegal gun possession and being a habitual criminal. He previously served prison time for a shooting and illegal gun possession.
At his trial, a police officer testified she saw McLaurin holding a handgun when he got into a van in 2014 on the West Side. The van drove off. The police followed, stopped the van, and McLaurin got out. He wasn’t carrying a gun. The officers said they found a gun under the van, but the appeals court said they couldn’t connect McLaurin to it.
McLaurin says he gets occasional visits from family and friends, but it’s hard for them to travel 270 miles to see him.
He says it hasn’t been easy being in prison. His latest ordeal involved a dentist pulling a tooth — the wrong one.
“Things like that, all the time,” McLaurin says. “I hope I get some good news soon.”
Karl Leonard, an attorney with The Exoneration Project at the University of Chicago Law School, says long delays in appeals have harmed defendants and victims of crimes alike.
“Every day, whether it is because someone is searching for a file in a warehouse or because they don’t have time to write a reply, is a day that they spend in prison separated from their family,” Leonard says.