Important Definitions in Appellate Law

Top Chicago Criminal Appeals Attorney explains important definitions in appellate litigationPracticing appellate law is a very niche area of law with terminology unique to it. Below are definitions of some of the important appellate terms.

Appellant: The party bringing an appeal.

Appellee: The party defending the appeal.

Appendix: A mandatory part of the appellant’s opening brief. It must include a copy of the judgment being appealed, the notice of appeal, and any other document from the record on appeal that is relevant to the disposition of the appeal.

Appellate Brief: The written argument that is filed in the appellate court. The briefs are the most important part of the appeals process. The briefs can be mega filings that can be well over 50 pages.

Associate Judge: A judicial position appointed by circuit judges, pursuant to supreme court rules, for four-year terms. An associate judge can hear any case, except felony criminal cases except when specially authorized by the Supreme Court to hear all criminal cases.

Circuit Court: The trial level in the Illinois Court System. There are 24 circuit courts in Illinois, 6 of the 24 are single county circuit courts (Cook, Du Page, Lake, Kane, McHenry, and Will); the remaining circuits contain 2 to 12 counties per circuit.

Circuit Court Judge: Circuit judges are elected for a six year term and may be retained by voters for additional six year terms. They can hear any circuit court case. Circuit judges are initially elected either circuit-wide, from the county where they reside or from a sub-circuit within a county, depending on the type of vacancy they are filling

Common Law Record: The bound volume(s) of documents filed in the trial court during the pendency of the trial. The clerk of the circuit court must certify the common law record.

District Court: The trial level in the Federal Court System. Illinois is divided into the Northern District of Illinois, the Central District of Illinois, and the Southern District of Illinois.

Illinois Appellate Court: The court of first appeal for civil and criminal cases. All decisions by the Illinois Appellate Court decided after 1935 are binding on the circuit courts. The Illinois Appellate Court is divided into 5 Districts.

Interlocutory Appeals: An appeal that is filed before a final judgment is obtained in the trial court. Interlocutory appeals can only be filed in very limited situations.

Petitioner: A person bringing a petition. Used interchangeably with appellant although terms have different meanings.

Report of Proceedings: The bond volume(s) of the trial transcripts of the testimony given by the witnesses at trial. The court reporter must certify the report of proceedings.

Respondent: The name of the person defending a petition. Although respondent is used interchangeably with appellee they have different uses.

Supreme Court of Illinois: The supreme court of Illinois. The Court’s authority is granted in Article VI of the Illinois Constitution. The Court is comprised of seven justices elected from the 5 appellate judicial districts of the state: Three justices from the First District (Cook County) and one from each of the other four districts. Each justice is elected for a term of ten years. The Court has appellate jurisdiction over the Illinois appellate courts and original jurisdiction over a small range of cases

Supreme Court of the United States: The highest federal court of the United States. Established pursuant to Article III of the United States Constitution, it has appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases.

Writs: An order from a higher court to a lower court or an order from a court to a government official to do something.

United States Court of Appeals: The first level appellate review in the federal system.
The U.S. Court of Appeals is divided into 13 courts. Illinois is located in the 7th Circuit.

These are just a few of the important terms used in appellate litigation. Any practitioner of appeals most know and be adept with all the terminology associated with filing an appeal.

The Right to a Speedy Trial

Speedy Trial Rights

The Right to a Speedy Trial

A speedy trial is guaranteed to anyone charged with a crime in Illinois or in a federal court. The right to speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, which states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The Sixth Amendment  guarantees a trial within a set period of time and it prevents the prosecution from unnecessarily delaying your trial. Aside from the protections guaranteed by the United States Constitution, Illinois also provides a corresponding right in the Illinois Speedy Trial Act codified at 725 ILCS 5/103-5.

Barker v. Wingo– Constitutional Right to a Speedy Trial

In 1972, the United States Supreme Court issued its ruling in Barker v. Wingo, a case that dealt with the 6th Amendment. Barker involved a habeas corpus petition that sought review of Barker’s murder conviction. Barker was convicted in a state court in Kentucky in 1963 for a double murder that had occurred in 1958. The local police arrested Barker and his co-defendant, Manning, shortly after the murders. The prosecution believing that the case against Manning was stronger than the case against Barker chose to prosecute Manning first with the hope that after being convicted Manning would testify against Barker in exchange for a more lenient sentence. In October of 1958, the prosecution sought the first of 16 continuances in Barker’s case. Barker’s criminal defense attorney did not object to the vast majority of the prosecution’s continuances including the first 11 continuances but did object to continuances numbers 12, 15, and 16. Manning was convicted for his part in the double murder in December of 1962 in a trial where Manning exercised his 5th Amendment right to remain silent and the constitutional prohibition of self-incriination. Barker was convicted in October of 1963.

Barker challenged his conviction on 6th Amendment grounds to the the Kentucky appellate courts and to the Kentucky Supreme Court. After both reviewing courts in Kentucky affirmed his sentence, Barker filed his post-conviction petition to the federal district court in Kentucky, which affirmed his sentence as did the 6th Circuit Court of Appeals. The United States Supreme Court granted Barker’s writ of certiorari in 1972.

Although the Supreme Court held that the 5-year period between defendant’s arrest and conviction was “extraordinary” it still upheld Barker’s conviction in a unanimous vote despite the Court finding that only 7-months of the 5-years was a “justifiable” delay. In so doing, the Supreme Court created the standard to determine when a person’s speedy trial rights have been violated. The standard created by the Supreme Court was not based upon the passage of a certain number of days as the American Bar Association recommended. Instead, the Supreme Court created a balancing test to determine on a case-by-case basis whether a defendant’s constitutional right to a speedy trial had been violated. The Court created the following factors for lower courts to determine whether a defendant was prejudiced by the prosecution’s delay in bringing the defendant’s case to trial:

  1. The length of the delay
  2. The reason for the delay
  3. Whether the defendant ever asserted his right before trial
  4. The prejudice suffered by the defendant because of the delay

Illinois Statutory Right to a Speedy Trial

Illinois grants defendants not only the rights guaranteed by the 6th Amendment to the United States Constitution but it also has created a statutory right to a prompt and quick trial. In Baker v. Wingo, the American Bar Association recommended that the United States Supreme Court should create a constitutional rule that guaranteed a trial within a certain time period. The Supreme Court rejected this approach holding that it could not determine “how long is too long” of a delay. Despite the United States Supreme Court rejecting this approach, the Illinois General Assembly adopted such an approach for state courts located in Illinois. In Illinois, “how long is too long” depends upon whether the defendant is in pre-trial custody or whether the defendant is released on bond.

Defendants Released on Bond

Illinois treats defendants that are in pre-trial custody differently then it does defendants who are released on bond. Among the major reasons for the difference is because defendants that are on bond are less prejudiced by the delay in the trial then are defendants that are in custody. Defendants that are out of custody after posting the required bail bond, the statute requires the State to bring the defendant to trial within 160 days after the defendant formally demands a speedy trial.

Under Illinois criminal law, a defendant on bond must demand trial with a written a demand for trial. Defendants that do not take the requisite steps waive their rights to object to the State’s delay in bringing the case to trial. What that means is that to enforce your rights under the Speedy Trial Act you must take certain steps otherwise you will not enjoy your right to a speedy trial. Illinois requires a defendant out on bond to file a written demand for trial. In the written demand, the defendant must state the demand for trial is being made under the Illinois Speedy Trial Act. The demand must also list any prior demands under the Act. Time spent in pre-trial custody counts against the speedy trial period. However, after being released from custody the defendant must file a written demand upon being released from custody.

Defendants in Custody

The speedy trial period for defendants that are detained in pre-trial confinement are treated differently in Illinois. Defendants that are unable to post the bail bond amount and remain in custody while awaiting trial, have a shorter speedy trial period than defendants on bond. In custody defendants have a 120 day speedy trial period, which means the State must bring the defendant to trial within 120 days of the defendant being taken into custody by the State. The 120 day period begins to run automatically unless the delay in the trial was attributable to the defendant. Additionally, unlike a defendant released on bond, a defendant in custody does not need to file a written demand for trial to start the 120-day speedy trial period. However, to ensure that your right to a speedy trial is enforced you cannot agree to delaying the trial or consent to the State’s request for a continuance.

An important factor in computing the 120-day speedy trial period is the reason for the defendants incarceration. The speedy trial period does not apply to cases where the defendant is in custody as a result of a different offense. For example, if a defendant is facing two separate but simultaneous criminal charges and the defendant has an I-bond one charge and a no bail bond hold on another charge which is keeping the defendant in custody. The defendant cannot argue that the 120 day speedy trial period applies to the case that has an I-bond because that case in keeping him in custody. The 120-day period also does not apply to defendants who are in custody for a violation of parole or mandatory supervised release. The 120-day speedy trial period must be one continuous period of incarceration. In computing the 120-day term, separate periods of incarceration may not be combined. Also, if a defendant is taken into custody a second (or subsequent) time for the same offense, the term will begin again at day zero.

What is a Delay Occasioned by the Defendant?

The most important factor in the Illinois Speedy Trial Act is whether the delay was occasioned by the defendant. Regardless if the defendant is in custody or on pre-trial bond, the speedy trial period is tolled when the delay in the trial is caused by the defendant or if the defendant agrees to the continuance. Anytime a defendant files a pre-trial motion, even a motion for discovery, is a delay occasioned by the defendant because the prosecution is required to answer the motion prior to trial. The entire time that it takes to resolve the pre-trial motion is attributed to the defendant even in cases where the delay in proceeding to a pre-trial hearing is caused by the prosecution.

In most criminal defense cases, the defendant and the prosecution are in pre-trial negotiations. Those pre-trial discussions between the prosecution and the criminal defense lawyer sometimes involves plea negotiations, witness availability, trial stipulations, and a host of other items. Those discussions typically take several months to complete. During that time will likely involve several court appearances where the defendant, the criminal defense attorney, and the prosecution advise the trial court on the progress of the case. These continuances are usually agreed to by the defendant. These agreed continuances that are known as by agreement continuances also toll the speedy trial period.

A defendant can also waive his right to a speedy trial by his or her actions. All defendants that are on bond are required by the conditions of their bond to appear on time to their scheduled court dates. A failure to comply with this requirement will result in the defendant waiving his or her previous speedy trial demands. What that means is a defendant on bond who misses court will have the speedy trial period reset to Day 0 if the defendant ever is late or misses a court date. This result will occur regardless if the court issues a warrant for the defendants arrest.

What Can You Do to Enforce Your Right to a Speedy Trial

Both the United States Constitution and the Illinois Speedy Trial Act act as a shield to protect defendants against the prosecution unnecessarily delaying your trial and prejudicing the defendants right to due process that includes a right to a fair and impartial trial. The actual protections guaranteed are different whether the right being violated is the defendants right to a speedy trial under the United States Constitution or under Illinois law. Although the rights are different, the protections they provide are applied contemporaneously and separately, which to use depends upon the individual circumstances of your case.

That is why the most important thing you can do is to hire an criminal defense lawyer that not only understands both protections but a criminal defense attorney that can and is willing to communicate with you about your case. Time and time again as both a prosecutor and now as an Illinois criminal defense attorney, I have seen defendants agreeing to continuances without any explanation from their attorneys. The defendants look up and over a year has passed on their case without any benefit or end in sight. A criminal defense lawyer who will communicate with you the reasons for the continuance or the reasons why pre-trial motions have been filed will ease your mind that your case is processing as it should be. Only with an attorney that will communicate with you is how you can ensure rights to a speedy trial are protected and enforced.

At Jaleel Law, we pride ourselves on responding to our client’s questions as soon as we can and in most cases well within 24 hours. We never feel like our clients are bothering us or disturbing us, instead, we believe that an open communication between an attorney and the client is critical piece in a successful defense. We rely on our clients to speak to us truthfully and honestly just like our clients want the same. Whether you are charged with a crime and want to ensure that your rights are protected by a former prosecutor who actually cares what happens to you or whether your rights have been denied, we can help. We have successfully defended people just like you in the trial courts and in the appellate courts. We have the experience to win regardless of where your case is currently. Contact us today to see what we can do in your case.

How to Remove Sex Offender Registration- Petition to be Removed from Sex Offender Registry

sex offender registery name removal

How to Remove Sex Offender Registration- Petition to be Removed from Sex Offender Registry

Removing your name from the sex offender registry is not an impossible task but it is certainly not easy. In Illinois, removing your name from the sex offender registry is only possible for people who were convicted of a sex crime as a juvenile and sentenced as a juvenile offender.

Who Can Remove His or Her Name from the Sex Offender Registry?

The procedure to remove your name from the sex offender registry applies only to offenders who were found to be delinquent in a juvenile proceeding. All adult offenders are currently unable to petition a court have their names removed from the sex offender database; however, other options such as a pardon may exist. The Illinois Sex Offender Laws also prohibit juveniles convicted as adults from petitioning a court to have their names removed from the sex offender registry.

What is the Waiting Period Before Filing a Petition to Remove Sex Offender Registration?

The time period that a juvenile must wait before petitioning a court to terminate the sex offender registration requirements varies depending upon the nature of the crime committed by the juvenile.

Felony Offenses

Remove Sex Offender Registation If the juvenile was found delinquent of an offense that would have been a felony had an adult committed it, then the waiting period is 5 years. What that means is that a juvenile must register as a sex offender for a minimum of 5 years before petitioning a court to terminate the sex offender registration requirements.

Misdemeanor Offenses

A juvenile adjudicated delinquent for an offense that would be a misdemeanor offense if committed by an adult is treated differently. Instead of requiring a waiting period of 5 years, a juvenile adjudicated a delinquent of a misdemeanor offense can apply to have his or her name removed as a sex offender after waiting only 2 years.

When Will a Court Remove Someone’s Name from the Sex Offender Registry?

To be successful, the person filing the petition to remove the sex offender registration requirements must establish by a preponderance of the evidence that he or she no longer poses a risk to the community.

What are the Factors a Court Considers Before Removing Someone from the Sex Offender Database?

At the hearing on the petition to terminate the sex offender registration the court will consider the following factors:

  • A risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act;
  • The juveniles’ sex offender history;
  • Evidence of the juvenile’s rehabilitation;
  • The age of the juvenile at the time of the offense;
  • The juvenile’s mental, physical, educational, and social history;
  • Any victim impact statements;
  • Any other factors deemed relevant by the court.

Based upon these factors a court will make a determination if the person is more likely than not to pose a risk to society. This decision is appealable to an appellate court.

Conclusion

Being successful in a petition to remove sex offender registration is not an easy task. It requires you to establish that it is more likely than not that you pose “no risk” to the community. Overcoming this burden is no easy task and it requires an attorney who has the experience and the know how to win. If you were adjudicated as a juvenile delinquent that now requires you to register as a sex offender, we can help. We will prepare a petition to remove sex offender registration that will give you the best chance to win. Contact us today to discuss what we can do for you.