Monday, December 27, 2010

Chicago Criminal attorney comments on no preliminary hearings required for misdemeanor cases

Wow!  Imagine having criminal charges dismissed against you but having the state appeal and get the charges reinstated.

That is what happened to Justin Majors.  

On appeal, the State contends that the trial court erred by dismissing the instant harassment by telephone charge at a preliminary hearing for lack of probable cause. 

This court has previously recognized that probable cause must support a felony charge, but not a misdemeanor.  People v. Davis, 397 Ill. App. 3d 1058, 923 N.E.2d 345 (2010).  Specifically, in Davis, we reversed the trial court's dismissal of a misdemeanor traffic citation for lack of probable cause.  In doing so, we noted that the Code of Criminal Procedure of 1963 (Code) provided that those individuals charged with a felony offense "shall receive either a preliminary examination *** or an indictment by Grand Jury" within 60 days of their arrest date. 3 725 ILCS 5/109--3.1(b) (West 2008).  In contrast, the Code contains no such preliminary hearing requirement "for misdemeanor charges because 'most misdemeanor cases are, as a matter of routine, speedily disposed of.' "  Davis, 397 Ill. App. 3d at 1059, 923 N.E.2d at 346, quoting People v. Mitchell, 68 Ill. App. 3d 370, 374, 386 N.E.2d 153, 156 (1979).

 You have to wonder, why would the state think it should require a preliminary hearing for a felony charge but not a misdemeanor?  There are plenty of people awaiting trial, because they are unable to make bond, on misdemeanor charges.  There are also a large number of people who have been sentenced to jail on a misdemeanor charge.  It would seem that where freedom is at risk, every individual charged with a crime should be afforded the same opportunities for dismissal.  How long it will be before some government folks start parading out the felony cases that are dismissed at preliminary hearings, while less serious charges, misdemeanors, don’t even have preliminary hearings where charges can be dismissed?

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