LAWSUIT SAYS PUBLIC DEFENDER CUTS BACKLOG BY REJECTING APPEALS

By Robert Becker
February 28, 2001

To trim its backlog of cases before the Illinois Appellate Court, the Cook County public defender's office has bailed out of nearly half the criminal appeals assigned to it over a 19-month period, according to a lawsuit filed Tuesday in Circuit Court.

The MacArthur Justice Center and the American Civil Liberties Union filed the suit on behalf of convicted murderer Anthony Jefferson against the office of Public Defender Rita Fry.

 The suit alleges that attorneys in her office failed to pursue appeals for clients such as Jefferson not because the cases lacked merit, but "to reduce its backlog of unbriefed cases and ease the workload."

The lawsuit also contends that public defender's offices in other big cities and counties are far more likely to take on appeals than Fry's office. Her office declines to pursue 49 percent of the appeal requests made by defendants; in New York the comparable rejection rate is only 6 percent, the suit contends.

Locke Bowman, legal director of the MacArthur center at the University of Chicago, said indigent clients "deserve a lawyer committed to handling their appeals."

Bowman said the defender's office should not shy away from appeals "simply because there is a case backlog or staffing shortage."

Fry characterized as ridiculous the assertion that her office is mishandling appeals as a means to clear up its case backlog.

"We file appeal briefs when it's appropriate," Fry said.

She said she recently added 10 attorneys to the division that handles appeals. The backlog of cases--which stood at 800 last summer--has decreased to about 100, Fry said.

Fry also said that if judges on the Appellate Court think her office inappropriately handled appeals "they have the ability to notify us."  But that has not been the case, Fry said.

The MacArthur lawsuit adds to the controversy that has beset Fry and her office in recent months.

Last June, seven supervisors filed a federal complaint alleging Fry has favored men for career advancement. The complaint also alleged that Fry's office lacks an "objective, non-discriminatory" means of setting salaries and awarding promotions. That case is pending.

Fry also had to fend off a threat by the Illinois Appellate Court last year to dismiss appeals in about 175 of the oldest cases in her office's backlog. She unsuccessfully petitioned then-Chief Criminal Courts Judge Thomas Fitzgerald to stop assigning appeals cases to her office.

The current controversy involves Fry's office filing what are called Anders motions, which are named after a 1967 U.S. Supreme Court decision establishing the procedure for court-appointed lawyers to withdraw from a criminal appeal.

The high court ruled that appointed lawyers may withdraw from a case if, after carefully reviewing the trial record, they conclude an appeal is "wholly frivolous."

Bowman said he began questioning the proliferation of Anders briefs after obtaining statistical data from Fry's office indicating that it sought to opt out of nearly half of all cases it had been assigned from December 1998 to June 2000.

The lawsuit alleged that it is "the policy" of Fry's office to withdraw from appeals--even those with merit--"to reduce the backlog" of appellate work in the office.

A heavy workload has forced lawyers in Fry's office to skimp on case review and preparation, the suit alleges.

Supervisors perform only a cursory examination of cases up for appeal, delegating to assistants with little experience those deemed unlikely to end up before the appellate court, the suit alleges.

It also says the Appellate Court has little choice but to dismiss the case "as frivolous without having the benefit of experienced counsel's thorough review of the record."

Such was the fate of Jefferson, the lawsuit contends.

Jefferson was convicted for his part in a 1997 home invasion and murder and sentenced in 1999 to 55-years for murder and 20 years for attempted murder.

The judge who imposed the sentences ruled that they were to be served consecutively.

The suit alleged that tacking one sentence on to the end of the other was a potential violation of Jefferson's constitutional rights.

Instead of raising that issue on appeal, Jefferson's public defender filed an Anders brief saying that there was no grounds for appeal, the suit alleged.

Bowman said his client "is entitled to have a lawyer argue these issues on appeal, and that is what did not happen here."