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Case Name Green v. Washington PD-IL-0001
Docket / Court 1:93-cv-07300 ( N.D. Ill. )
Additional Docket(s) 98-01295  [ 98-1295 ]  Federal Court of Appeals
State/Territory Illinois
Case Type(s) Indigent Defense
Case Summary
This class action arose from a habeas petition filed on December 3, 1993 in the U.S. District Court for the Northern District of Illinois. Only limited information about this case is available on PACER. Information for this summary came from several federal court opinions and the docket.
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This class action arose from a habeas petition filed on December 3, 1993 in the U.S. District Court for the Northern District of Illinois. Only limited information about this case is available on PACER. Information for this summary came from several federal court opinions and the docket.

The petitioner sought a remedy for the state's delay in adjudicating his criminal appeal. Represented by the MacArthur Justice Center, the Mandel Legal Aid Clinic, and private counsel, the petitioner brought the action as a "representative" petition for habeas corpus, claiming that the state's delay violated his due process rights. A copy of the petition was not available at the time of this writing. On December 30, 1993, the petitioner sought class certification. The case was initially assigned to Judge Susan B. Conlon and reassigned to Judge Milton I. Shadur.

This case combined a number of habeas matters filed in the U.S. District Court for the Northern District of Illinois related to the same subject: United States ex rel. Odell v. Peters, 93-C-5671, United States ex rel. Sanchez v. Peters, 93-C-5672, United States ex rel. Joy v. Peters, 93-C-5673, and this case, United States ex rel. Green v. Washington, 1:93-cv-07300. The court consolidated all of them as a habeas class action on this case's docket.

According to one court opinion, the four petitions told "essentially the same story":
Although the Defender Systems are operating efficiently, they are hopelessly understaffed. Because of the tremendous volume of unbriefed cases, no staff attorney can file an opening brief for some two years from the date of conviction. That means that indigent criminal defendants may expect on average at least a three-year delay between their respective conviction dates and the dates of resolution of their appeals. Under the Illinois system of day-for-day good time credit, many defendants will thus have served a substantial portion of their terms of incarceration before their appeals are decided. Indeed, many will have served all or virtually all of their terms—thus rendering their statutory right of appeal a nullity.
[d] 1994 WL 8258, at *2 (N.D. Ill. Jan. 8, 1994). Prior to this case, in October 1993, the State Attorney General had sought the dismissal of the three individual petitions first on the grounds that the cases were not ripe for adjudication and then on the grounds that petitioners had not fully exhausted their state remedies. 1994 WL 8258, at *3. The court rejected both arguments but suggested that the state appellate court ought to be given the opportunity to fix the system's issue of backlogged appeals and delays. The court directed the petitioner's counsel and the Attorney General to work together with the state appellate court to find a solution to the overload of case appeals. U.S. ex rel. Green, 1994 WL 8258, at *4.

However, the Attorney General failed to communicate and participate according to the court's standards. The court issued an opinion and order on January 6, 1994, requiring the Attorney General to file a response to the petitioner's motion for class certification by January 20, 1994. 1994 WL 8258, at *5. In addition the court requested that the state appellate court respond to the following questions:
1. How soon can (a) appointments of private counsel be made to represent appellants in the oldest cases on appeal that are not yet being actively worked on by the Defender Systems and (b) a structure and procedure be established for the systemic appointment of private counsel in cases that are beyond the capacity of the Defender Systems to handle on a reasonable schedule?
2. What would be a reasonable target to establish as a timetable for the disposition of appeals if something similar to the type of remedy urged by petitioners were to be adopted?
[d]. 1994 WL 8258, at *5. On January 25, 1994, the Court approved the petitioner's request for class certification, adding 366 prisoners to the action. The court defined the class as follows:
Persons in custody of the Illinois Department of Corrections who fit the following description:
1. Each has filed a currently pending appeal in the First District of the Illinois Appellate Court from a non-capital felony conviction in the Circuit Court of Cook County.
2. Each is represented in his or her appeal by the Office of the State Appellate Defender.
3. Each has been sentenced to serve no more than 20 years in prison.
4. In each instance, the appeal has been pending for one year or more with no opening brief filed on his or her behalf, or he or she has been advised that a period of time greater than one year will elapse before an opening brief will be filed in his or her case. .
[d]153 F.R.D. 615, 618 (N.D. Ill. 1994).

The parties proceeded through discovery beginning in November 1994 and ending in July 1995. On March 30, 1994, the Court received a letter from the state appellate court responding to the two questions that were posed in the Court’s January 6 memorandum. 1994 WL 113097, at *1 (N.D. Ill 1994).

The court issued findings of fact and conclusions of law on February 23, 1996. The court determined that the two-year delay from the notice of appeal without issuance of a state appellate decision in a prisoner's direct criminal appeal gave rise to a presumption of ineffective state process. The court excused the exhaustion of available state remedies requirement and held that the delay was excessive and unconstitutional. The State did not rebut the Court's finding that the burdens and sources of delay determined that the two-year timetable would not be fulfilled for any prisoner, creating a violation of the prisoners' constitutional right to a timely appeal. The Court, therefore, concluded that the prisoners were entitled to a remedy. The Court ordered the state to file a report disclosing the prisoners whose appeals had remained unsolved for two years or more after already filing notices of appeal and share whether it was feasible to resolve those prisoners' appeals within a short time span. In addition, the Court also ordered the state to file a proposal providing means to expedite the case briefings for the other remaining prisoners. 917 F. Supp. 1238, 1282 (N.D. Ill 1996). The reports and proposal were not available at the time of writing, and it is unclear whether the respondents changed their conduct as a result of this litigation.

On October 15, 1996, two attorneys that had acted as co-counsel for the plaintiffs moved for leave to withdraw from representation. They argued that the addition of new justices of the Illinois Appellate Court for the First District as defendants would present potential prejudice for their other clients. 1997 WL 242904, at *1 (N.D.Ill., May 05, 1997). The court denied the attorneys’ motion to withdraw on April 29, 1997. On February 18, 1997, the respondents submitted a plan to effectuate action for timely disposition of the criminal appeals (documents were unavailable at the time of this writing). On January 9, 1998, the court awarded $6,7445.75 in attorneys' fees to the petitioners.

On February 6, 1998, the respondents appealed to the United States Court of Appeals for the Seventh Circuit. On February 25, the court asked the appellants to brief on the issue of the court's jurisdiction and an explanation for why the case should not have been dismissed. They did not respond. On August 10, 1998, the court asked the appellants to show cause as to why they should not receive sanctions for failure to respond to the court's order. On August 18, the respondent-appellants filed a motion to dismiss the appeal and the court voluntarily dismissed on August 27, 1998. The case is now closed.

Kimberly Goshey - 10/28/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
Content of Injunction
Access to lawyers or judicial system
Plaintiff Type
Private Plaintiff
Special Case Type
Causes of Action Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) First District Office
Illinois Department of Corrections
Justices of the Illinois Appellate Court for the First District
Plaintiff Description 366 prisoners under the custody of the Illinois Department of Corrections. Each petitioner was sentenced to serve 20 years or less in prison, and has an appeal that had been pending for one year or more without an opening brief filed on his or her behalf, or has been informed that it will be more than one year after his or her notice of appeal before an opening brief will be filed for their case.
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Source of Relief Litigation
Filed 12/03/1993
Case Closing Year 1997
Case Ongoing No
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
  Securing Reasonable Caseloads: Ethics and Law in Public Defense
Date: 2011
By: Norman Lefstein (Indiana University--Indianapolis Faculty)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Date: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
Date: 2009
By: Cara Drinan (Columbus School of Law, Catholic University Faculty)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

  Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Date: May 7, 2007
By: Vidhya K. Reddy (Washington University in St. Louis Law Student)
[ Detail ] [ PDF ]

Court Docket(s)
N.D. Ill.
PD-IL-0001-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
N.D. Ill.
Memorandum Opinion and Order [ECF# 9] (1994 WL 8258)
PD-IL-0001-0003.pdf | WESTLAW | Detail
Source: Westlaw
N.D. Ill.
Memorandum Opinion and Order [ECF# 13] (153 F.R.D. 615)
PD-IL-0001-0004.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
N.D. Ill.
Memorandum Opinion and Order [ECF# 26] (1994 WL 113097)
PD-IL-0001-0005.pdf | WESTLAW | Detail
Source: Westlaw
N.D. Ill.
Memorandum Order [ECF# 31] (1994 WL 124881)
PD-IL-0001-0006.pdf | WESTLAW | Detail
Source: Westlaw
N.D. Ill.
Findings of Fact and Conclusions of Law [ECF# 109] (917 F.Supp. 1238)
PD-IL-0001-0002.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
N.D. Ill.
Memorandum Opinion and Order [ECF# 155] (1997 WL 242904)
PD-IL-0001-0007.pdf | WESTLAW | Detail
Source: Westlaw
show all people docs
Judges Shadur, Milton Irving (N.D. Ill.) show/hide docs
PD-IL-0001-0002 | PD-IL-0001-0003 | PD-IL-0001-0004 | PD-IL-0001-0005 | PD-IL-0001-0006 | PD-IL-0001-0007 | PD-IL-0001-9000
Plaintiff's Lawyers Banar, Kathleen Marie (Illinois) show/hide docs
Bowman, Locke E. III (Illinois) show/hide docs
Bradford, David J (Illinois) show/hide docs
Malone, Edward Francis (Illinois) show/hide docs
Stone, Randolph N. (District of Columbia) show/hide docs
Sukenik, Dana H. (Illinois) show/hide docs
Von Hoene, William A. Jr. (Illinois) show/hide docs
Defendant's Lawyers Ciecko, Thomas Lee (Illinois) show/hide docs
Flahaven, Roger Philip (Illinois) show/hide docs
Gillis, Martha M. (Illinois) show/hide docs
Madsen, Terence (Illinois) show/hide docs
Solberg, Wallace Cyril (Illinois) show/hide docs

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