A better way to protect the rights of arrestees who aren’t charged for days
Probable cause hearings should be held in open court, with public notice, and defense counsel should be present to keep an eye on what’s going on.
Imagine being arrested and held in a police lock-up for days on end before seeing a judge — or even having charges filed against you.
That’s how it was in Chicago and the country before the U.S. Supreme Court in 1975 ruled that the police must go to court and prove to a judge that there is probable cause to hold a suspect longer than 48 hours.
Gerstein hearings, as they are called, have become an important step in protecting the civil liberties of arrestees for more than 40 years. But as a Sun-Times report this week made clear, the hearings themselves can be troubling, held out of public view in empty courtrooms or police station back rooms, with the arrested person sometimes clueless as to what’s going on.
Several obvious reforms would improve the process, making probable cause hearings more open, transparent and respectful.
As things work now, Gerstein hearings are brief. A police officer appears before a judge, and the judge asks the officer whether his written statement of probable cause — his justification for wanting to detain an arrested person a little longer — is true and correct.
The officer answers “yes.” Then the judge, who has reviewed the documents, almost always signs an order allowing the police to hold the arrested person until the next session of bond court — typically within two days.
In most cases, the suspect appears for the probable cause hearing, as well, but he usually is asked no more than his name. And he’s returned to the police lock-up immediately afterward. The hearings are held without public notice, and because the Supreme Court has ruled that such proceedings are “non-adversarial,” the suspect’s lawyer is not notified or present.
All of this is legal. It is all within the letter of the law, as mandated by the Supreme Court.
But that does not mean the hearings could not be more open and monitored, more in the spirit of equal justice for all. We believe Gerstein hearings should be held in open court, with public notice, and with a defense lawyer notified in advance and ideally present — even if only to keep an eye on what’s going on.
Equally important, a judge should be required at the beginning of a probable cause hearing to explain its purpose to the detained person. You might assume this is already done, but it’s not.
In a December 29, 2019, hearing at the Chicago police station at Belmont and Western avenues, Cook County Judge Clarence Burch was on the verge of signing a detective’s probable cause complaint when the person being held, Marlon Bradley, interrupted, according to transcripts obtained by the Sun-Times.
“Excuse me, what is going on?’’ Humphries asked.
“I am going to tell you in one moment,” Burch said. “Just hold on, sir. Just relax.”
“No, I can’t relax,” Humphries replied. “I am supposed to have legal representation at any hearing I am at. I don’t have no legal representation. I want to say this for the record, Man. I don’t have anything . . . and I ain’t never ever been in any process like this. . . . What am I being charged with?”
“The detective will explain that to you, sir,” Burch said.
And with that, the hearing was ended. Nothing in the transcript indicates that anybody — the detective or the judge — answered Humphries’ entirely reasonable questions.
City Hall and the courts have made improvements in Gerstein hearings in the last year. A court stenographer now is present at every hearing, which was not the case as recently as last summer, and the office of Cook County Chief Judge Timothy Evans now schedules the hearings. For years until last fall, the hearings were scheduled by a retired judge whose work was poorly monitored, though he was paid up to $8,000 a month.
The key improvement here is that Judge Evans has effectively assumed responsibility for the quality of the hearings and any future reforms. In this, we believe the Cook County state’s attorney’s office should also play a bigger role. When we asked Kim Foxx’s office about that, they declined to comment.
Gerstein hearings are a commendable product of criminal justice reform. They were created to protect people who are arrested but not charged from getting lost in the system.
But in a city that suffers from a national reputation for treading on defendants’ rights, Gerstein hearings can never be too public, transparent or thorough.
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