dissenting:
As noted by the majority, the rights of defendant which were violated here by the unreasonable delay in bringing him before a judicial officer concerned his opportunity to prepare his defense and his liberty. In People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, the State’s delay of nearly a year in bringing charges against an accused deprived him of knowledge during that time of the charges he was going to be required to meet. However, the supreme court held this to be insufficient grounds to bar action against him unless he could show that he was actually and substantially prejudiced in the preparation of his defense. Had those requirements been met and had the State been unable to show a valid reason for the delay, the purpose of barring action would have been to prevent a possibly innocent person from being convicted. Although any delay in informing an accused of the charges he is to face is something of a hindrance to preparation of his defense, no evidence was presented here which showed that the defendant was actually and substantially prejudiced in his defense by the delay. Had he needed more time to prepare for trial, the court could have given him a continuance.
In Lawson, the defendant was at liberty during the delay before the charge was made. Here, defendant was incarcerated during the delay and was deprived of the opportunity to make bond during this time. His significant deprivation was that of liberty, a most important one. However, that liberty for that time can never be restored to him. The purpose of imposing the sanction of barring the charge was not to prevent the likelihood of an innocent person being convicted. Rather, as stated by defendant, it is for the prophylactic purpose of discouraging law enforcement officers from imposing similar deprivations on others. The sanction is akin to the exclusionary rule whereby evidence that may be highly probative of a defendant’s guilt but wrongfully obtained is excluded in order to discourage law enforcement officers from obtaining evidence in the future in a manner which deprives persons of their constitutional rights.
I am reluctant to concur in creating, by judicial fiat, a procedure permitting a trial court to completely bar criminal charges against a defendant who may well be guilty, merely to deter improper or careless conduct by law enforcement officers. The barring of the charges here may not be too great a price to pay to invoke an effective deterrent, but what if the defendant were a likely dangerous person charged with a vicious murder? Would we then uphold a trial court that barred those charges for prophylactic reasons because the defendant had been improperly deprived of liberty for 14 days? A rule permitting or refusing a dismissal in bar of action of the charges depending upon the severity of those charges barred and the likely danger to society of the accused would be most difficult to apply.
The majority opinion states that it is not adopting the rule referred to in the previous paragraph. Nevertheless it indicates that it is not approving dismissal when the charges are serious, and it gives consideration to the fact that the instant offense was a misdemeanor. What is the criterion for the court to follow?
The majority apparently limits its ruling to being an approval of an action of a trial court which was within its discretion to make. It thus indicates it was not holding that the defendant was entitled to be discharged as a matter of right because of the unreasonable and inexcusable delay in bringing him before the court. However, I am not aware of any precedent in this State for permitting a trial court as a discretionary act to dismiss a criminal charge in bar of action as a prophylactic measure.
The traditional remedy for an accused improperly held is to seek a writ of habeas corpus. No showing was made here that the defendant was held incommunicado and could not have consulted a lawyer. I realize the practical limitations imposed upon one not brought before a. judicial officer. He may not know that he can call a lawyer, and if indigent he may have difficulty in obtaining one before one is appointed by the court. Civil action against those responsible for the wrongful detention may likely be unavailing and not an effective deterrent. Nevertheless, I am confident that if an incarcerated accused is not held incommunicado, he would soon be able to make contact with a lawyer who would be willing to represent him for a sufficient length of time to obtain a writ of habeas corpus.
Even if the intent of the majority is to limit application of this case to those involving minor offenses when the time of delay represents a substantial portion of the imprisonment the accused would likely undergo if convicted, I am unwilling to create so drastic a sanction. I would follow the reasoning of the supreme court in People v. Hendrix (1973), 54 Ill. 2d 165, 295 N.E.2d 724, and People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403, in holding that such sanction should result only from legislation.
I would reverse and remand for a new trial.