Adams County public defender questioning local interpretation of Pretrial Fairness Act in cases of Springfield, Quincy men

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Top row from left, Kareun Brewer and Latwaon McCray. Bottom row from left, Zach Boren, Kevin Bross and Tad Brenner.

QUINCY — The arraignments of a Springfield man and a Quincy man have been delayed because an Adams County public defender is questioning how the Pretrial Fairness Act, also known as the Safe-T Act, is being interpreted in Adams County.

Kareun Brewer, 21, and Latwaon McCray, 42, appeared in Adams County Circuit Court on Tuesday afternoon with Public Defender Kevin Bross before Judge Tad Brenner.

Brewer faces charges of an Illinois Department of Corrections parole violation as well as charges of aggravated kidnapping, aggravated discharge of a firearm and home invasion.

McCray, who was arrested May 13, is charged with being an armed habitual criminal, manufacturing or delivering between 100 and 400 grams of heroin (both Class X felonies) and felony possession or use of a weapon or firearm (a Class 3 felony). 

Bross filed an “objection to arraignment” motion on Tuesday afternoon. Brenner asked Assistant State’s Attorney Brett Jansen how long it would take for the Adams County State’s Attorney’s Office to respond to the motion. Jansen said he thought they could respond and be ready for a hearing in a week.

Bross told Brenner his motion was a challenge to the application of the Pretrial Fairness Act. He believes the constitutional rights of Brewer and Latwaon have been violated. Both men are in the Adams County Jail on denial of pretrial release.

In his motion, Bross said Judge Zach Boren entered an order on May 13 on the people’s verified petition for detention in the Brewer case. (Brenner entered a similar order in McCray’s case on May 15.) As part of that order, Boren indicated “the court determines that there is probable cause the defendant here committed a felony offense, or such a finding is not necessary as a preliminary hearing has already been held or a grand jury has already returned a true bill of indictment against the defendant.”

Bross noted in his motion that the Illinois Constitution states, “No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.”

Bross also referred to the Code of Criminal Procedure and the Illinois Compiled Statutes, explaining he believes the court should hold a preliminary hearing to determine if probable cause exists that the defendant has committed an offense — unless the grand jury has returned a true bill of indictment against the defendant.

“If there is a finding of no probable cause, the defendant shall be released,” the Illinois Compiled Statutes say.

Since the probable cause found by Boren on May 13 and Brenner on May 15 did not involve a grand jury indictment and wasn’t part of a formal preliminary hearing, Bross said his clients have been denied their right to such a finding under one of those options as provided under the law. 

The Adams County State’s Attorney’s Office has used grand jury indictments almost exclusively to find probable cause in felony cases for several years. Since the Pretrial Fairness Act took effect, the State’s Attorney is not using the grand jury in cases where a felony defendant is denied pretrial release, instead relying on the probable cause finding required as part of those pretrial release hearings.

Bross is arguing the law doesn’t allow that substitution and his clients are entitled to either a preliminary hearing or grand jury proceeding. The key difference between a pretrial detention hearing and either a preliminary hearing or grand jury is the pretrial detention hearing does not require live testimony by a witness to support a probable cause finding, while preliminary hearings and grand jury proceedings do.

Bross cited a recent and not formally published decision by the Fifth District Appellate Court in People v. Chambliss when he said defense counsel is necessary to “cross-examine witnesses presented by the state, present his or her own witnesses, and the trial court judge is required to decide whether sufficient probable cause exists to bind the defendant over for trial.”

“(Brewer) and his counsel were denied a meaningful chance to challenge probable cause, examine the state’s witnesses or probe the strengths and weaknesses of the state’s case at a preliminary hearing.” Bross wrote. “As such, this matter is not ripe for arraignment at this time.”

Brenner asked Bross if his motion was a constitutional challenge. Bross said it was not.

“I’m challenging that their constitutional rights have been violated as the Pretrial Fairness Act has been applied in these instances, not that the act itself is unconstitutional or unconstitutional as applied to them,” he said. “I think the application of the law, as it has been applied to these two individuals, is incorrect.

“I think the issue is not in the constitutionality. It’s in the interpretation that the act has been given here in their cases. There’s certainly a way that this act could be read and should be read that is constitutional. I think it’s just being misapplied as it’s currently being interpreted. That’s my concern or issue.”

Brenner later said that because this motion could have statewide implications, “it would seem appropriate for the attorney general (Kwame Brown) to have notice.”

A motion hearing will be held May 30 in both the Brewer and McCray cases.

Quincy Police officers responded April 8 to a shots fired call in the 700 block of South 14th.  The victim, who was not struck, reported that he and a second person were kidnapped at gunpoint after a home invasion in the 2500 block of Larch Road. The second victim escaped uninjured after the shots were fired.

The Quincy Police Department eventually identified suspects, and Brewer was arrested May 10 in Springfield.

If found guilty by a jury, Brewer could receive between six and 30 years in the Illinois Department of Corrections on the aggravated kidnapping and home invasion charges. He could receive between four and 15 years on the aggravated discharge of a firearm charge.

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