The authority of an Illinois Supreme Court order this week empowering chief circuit judges to retroactively delay the statutory time frame for a speedy trial amid the coronavirus emergency will likely be tested in the coming weeks and months.

The order effectively gives circuit judges discretion to pause the time period, which is generally 120 days, that is codified in Illinois statute as a criminal defendant’s right to a speedy trial, until further order.

The Illinois Supreme Court cites the court’s supervisory powers under the Illinois Constitution, and the governor’s emergency declaration to prevent the spread of COVID-19.

George Jackson III, of the Dred Scott Law Firm in Decatur, has already filed a motion in the Illinois Supreme Court, asking the court to vacate its order because, he argues, it lacked the authority to do so.

Jackson — who represents Anthony Jackson, an inmate in Cook County Jail — argues the court’s order violates due process and speedy trial rights.

“There is no residual catchall language in the Illinois Constitution or the Illinois Speedy Trial Act allowing any jurist, be it a judge, appellate justice or a Supreme Court Justice, to delay a trial in the interest of justice or for an emergency,” the motion, filed April 7, states.

The Supreme Court order provides that delays against the speedy trial clock can be “tolled,” retroactively from March 20, until further order of the court.

But some criminal defense attorneys, like Matthew Haiduk, are uncertain about how to advise their clients, given the indefinite nature of the order.

“How long a client has to sit in jail can have a huge impact on whether they want to take a deal or go to trial. When my client asks me if their trial will be in 6 months or 18 months, what do I say?” said Haiduk, a sole practitioner in Geneva.

“I understand why [the Illinois Supreme Court] would not commit to a certain date but usually we get facts, law and reasoning that let us take an educated guess in advising our clients.”

While the order states criminal trial delays for adults and juveniles in each circuit court will not impact the statutory time restrictions, the court may face separation of powers arguments, said IIT Chicago-Kent Clinical Law Professor Richard Kling.

Kling said he anticipates defense attorneys, whose clients have been held for more than 120 days and demand a speedy trial, will file motions to dismiss the charges, alleging that the speedy trial provision were violated.

“I’m sure that’s what’s going to happen with respect to defendants who were beyond the statutory period. And that fight is going to be whether the Supreme Court had the authority under the Constitution to extend the period,” Kling, a former public defender, said.

“And given the crisis, I would imagine that the Supreme Court’s constitutional authority to supervise the courts is going to preempt the legislative statute.”

Northwestern Pritzker School of Law Professor Juliet S. Sorensen said the Illinois Supreme Court’s order invokes “a power that, at its root, resides in another branch of government.”

“The truth is that we’re in a brave new world with the pandemic affecting all sorts of aspects of our justice system. The public health power is intertwined with the state and the federal government’s policing power and that is actually housed in the executive branch.

When courts apply orders issued by the executive to workings within the court, it seems to me that that is consistent with their own scope of power,” Sorensen said.

Haiduk said, in his view, the speedy trial right is legislative, and falls outside the scope of the Supreme Court’s supervisory and administrative authority.

“The court is entering a blanket, wide-sweeping order against a legislative right that already has exceptions and exclusions built in — the current state of emergency was not one of them. The [Supreme Court] orders offer little guidance as to where and how to draw lines regarding the importance of legal actions, but I’m not sure a defense attorney anywhere would tell you there’s a right more important than a right to trial,” he said.