Stung by judicial criticism of its allegedly unprofessional handling of a Champaign County inmate's appeal, the Office of the State Appellate Defender has not yet decided how it will respond.
"We just basically don't know what we're going to do. We're still digesting the opinion," said John McCarthy, the deputy defender in charge of the Springfield office.
McCarthy is referring to a Jan. 28 decision by the Fourth District Appellate Court in Springfield in which the three-judge panel reduced a prison sentence given to Richard Cisco from nine years to six years.
The court noted that when Cisco was imprisoned in 2016, there were unmistakable signs that his sentence was legally excessive. Yet, the justices noted, the appellate defender's office did not file its initial brief on Cisco's behalf "until May 9, 2018, 22 months after defendant's (notice of) appeal was filed."
"There is simply no justification for (OSAD) to have let defendant's appeal, which held obvious merit, lay dormant for almost two years. ... a mechanism for the early identification of appeals such as this, which have obvious merit and require remedial action be taken to avoid unwarranted incarceration of a defendant, is overdue," Justice Thomas Harris wrote for the court.
Harris was joined in the opinion by Justice James Knecht.
Justice Robert Steigmann wrote a concurring opinion that was especially harsh. He pointed out that improper delays in appeals with obvious merit by office lawyers are "hardly exceptional" and that the problem is caused by the appellate defender's insistence on addressing cases on a "first in, first out" basis.
"During my 30 years on the (appellate court), I have seen far too many similar cases," he wrote.
Steigmann called for the appellate defender to establish a legal "triage" review of incoming cases to determine which ones raise especially credible legal claims that justify expedited handling.
The 32-year-old Cisco was convicted of felony violation of an order of protection and felony domestic battery as a consequence of a fight with a former girlfriend. Those offenses were upgraded from misdemeanors to felonies because Cisco had a previous conviction for violating an order of protection.
Because of confusion about another potential felony conviction, prosecutors initially argued that Cisco not only faced a felony prosecution but extended sentences if convicted.
Cisco originally was sentenced to an extended term of six years for domestic battery and another three years for violating the order of protection — nine years in total because the two sentences were ordered to be served consecutively.
However, prosecutors and Judge Thomas Difanis erred in asserting that Cisco was eligible for a six-year extended term for domestic battery.
Instead, he faced a maximum three-year term for the domestic battery plus the additional three years for violating the order of protection — six years altogether rather than nine.
Cisco was held at the state correctional center in Centralia. Because of credits he earned for good behavior, Cisco was released Feb. 6 on parole, just a few days after the appellate court ruling.
The justices were angry because Cisco could have been held after his sentence was up because of the delayed manner in which the appellate defender's office handled his appeal.
Steigmann cited another case — Mansur Shakirov of McLean County — in which the office's delayed handling of a meritorious appeal caused Shakirov to serve his entire four-year sentence before his conviction was overturned.
Steigmann said the defendant "suffered a true injustice when this court reversed his conviction after we concluded that the state failed to prove him guilty of reckless homicide beyond a reasonable doubt. ... That should never have happened."
Steigmann said office lawyers have rejected a triage approach to incoming cases because of personnel shortages and concerns that "such a procedure would take too long."
"I emphatically reject OSAD's explanation and deem what happened to Shakirov (and almost happened to Cisco) to be a gross injustice," he said.
Steigmann outlined a triage approach in which office lawyers could examine incoming cases for "unusual features" qualifying them "to be advanced on the 'to-do' list."
He said the process need not be "unduly time-consuming."
He said that if the appellate defender continues its current first-in, first-out practice, "this court may be forced to require the OSAD administration to appear in person to move for any extensions of time."
"I think the OSAD administrators would soon discover that it would be easier and less time-consuming to engage in a triage procedure than it would be to appear in person before our court and explain what steps, if any, OSAD had taken so we can ensure that what almost happened in this case and what did happen in the Shakirov case never happens again," he said.
The Office of the State Appellate Defender represents indigent persons on appeal in criminal cases. Divided into five regions of the state — one for each appellate district — it's overseen by a panel of lawyers and judges who meet every six months.
Jim Dey, a member of The News-Gazette staff, can be reached at firstname.lastname@example.org or 217-351-3569.