BLOOMINGTON — The assistant state’s attorneys in McLean County juggle cases, courtrooms and dockets on a daily basis, and they’re used to it.
But being short three attorneys is anything but easy.
“It’s made it incredibly difficult over the last year,” said McLean County State’s Attorney Erika Reynolds.
Having been appointed in September, it hasn’t been long since Reynolds was one of those assistants, accustomed to operating understaffed — “at less than desirable capacity” — with open positions as well as temporary absences.
Reynolds
“Because we have a young office, we've had multiple people on maternity leave. … That's a two-month timeframe that everybody else in the office has to pick up the slack,” Reynolds said. “We've gotten good at doing that and identifying where people can shift their resources, but it is incredibly difficult.”
The office is budgeted for 27 assistant state’s attorneys, but “it’s been a really long time since that’s been the case,” Reynolds said.
Prosecutors in a few of McLean County’s neighbors — Livingston, Woodford and DeWitt counties — said they have been able to maintain a full staff, but others in Central Illinois can’t say the same.
“Sangamon County, McLean County, Champaign — all of us are having difficulty finding and attracting people to work in this part of the state,” said Macon County State’s Attorney Scott Rueter, whose office has 13 attorneys but is looking to hire four more.
Central Illinois is not alone. Nelson Bunn, executive director of the National District Attorneys Association, told Reuters last year that the problem extended across the country. "It's not limited to large jurisdictions versus small jurisdictions," he said.
Rueter
In Dodge County, Wisconsin, there were no full-time prosecutors remaining in the district attorney's office as of mid-January, according to the Watertown Daily Times. Last month, KSAT-TV reported that judges in Bexar County, Texas, worried about a lack of prosecutors leading to a delay in trials; 16 people had resigned from the district attorney's office in the prior month. And a spokesperson for the Indiana Prosecuting Attorneys Council earlier this month told a lawmaker committee that the state was short 440 prosecutors and several counties were operating with significantly fewer prosecuting attorneys than their caseloads demand, according to Inside Indiana Business.
How did the problem reach this level? McLean County’s lead prosecutor has a few theories, beginning with fewer students pursuing law degrees.
Path to the law
“Not as many people are willing to go to law school to take on the amount of debt that you take on in order to go to law school,” Reynolds said.
Many of those who have chosen to study in the last few years did so under COVID restrictions, leaving them with remote lectures that Reynolds said might have affected their ability to sit for the two-day bar exam and come out successful.
The bar exam is the qualification that enables lawyers to practice. Candidates have to score 266 out of a possible 400 points to practice law in Illinois.
The global shift to remote work has changed how fresh law graduates view their prospects, too.
“People want to work from home and you can’t prosecute from home,” Reynolds said.
When she graduated from law school, it was more common for new grads to seek a position in a prosecutor’s office to get as much trial experience as they could get before moving to private practice.
“The masses are just generally not interested in trying cases, being in a courtroom, being more specifically in an office. They want to do remote work, and that’s just not an option as a prosecutor,” Reynolds said, noting employers in every industry are facing that challenge to some degree.
Extending job offers to those coming out of law school is tricky, too. Under the Illinois courts’ 711 rule, students and new graduates can practice under another attorney while they await the results of the bar exam.
Some are hired under the 711 rule, but if they don’t score to Illinois’ minimum passing score, they can’t keep the job with the State’s Attorney’s Office, Reynolds said.
While several states lowered their minimum passing scores for the bar in the last few years, Illinois remained unchanged.
McLean County Assistant State's Attorney Aaron Frederick points at defendant Amari McNabb as he presents the state's opening argument on July 27, 2021, at the McLean County Law and Justice Center, Bloomington. The state's attorney's office is seeking to fill several open positions.
According to the National Conference of Bar Examiners, Illinois’ latest pass rate was 68%; Vermont reported the lowest pass rate at 50%.
“So there's people who failed the bar in Illinois but are practicing in Missouri because their passage rate requirements score is lower than Illinois,” Reynolds said. “We know for a fact that that is true, because there have been people that have been employed here for a period of time, failed the bar exam and are now employed in Missouri working as attorneys.”
Compared to Illinois’ 266, the Missouri passing score for the uniform bar exam is 260 and Indiana’s is 264. Iowa and Kentucky are on par with Illinois. Wisconsin does not use the uniform bar exam, but the passing score for its state bar is 258, according to Barbri, a company that offers bar exam prep courses.
The SAFE-T Act
Though it remains unfilled, the 27th assistant state’s attorney position was added to McLean County’s budget in anticipation of the changes to the criminal justice system going into effect this year.
The shortage of prosecutors comes as attorneys across the state prepare for significant potential changes under the Pretrial Fairness Act, a component of the broader criminal justice reform legislation known as the SAFE-T Act. The measure would eliminate cash bail for criminal defendants and change pretrial procedures, requiring prosecutors who wish to keep a suspect in custody to petition the court for pretrial detention and argue the matter at a hearing.
The law was set to take effect Jan. 1, but its implementation was delayed by the Illinois Supreme Court, which is preparing to hear arguments in a lawsuit filed by over 60 county state's attorneys — including Reynolds — objecting to the legislation.
“Because there are so many more requirements on our office, it’s going to prove more difficult if we have the same (shortage) moving forward,” Reynolds said.
As an arm of law enforcement, Reynolds said people “demonizing” law enforcement and the criminal justice system also makes it less likely to attract attorneys to the state's attorney's office.
Wagoner
Tammy Wagoner, a former assistant state's attorney in Macon County who was contracted to help with some McLean County cases in 2020, wonders if prosecutor recruitment is going the same way as police officer recruitment, which is also struggling.
“We’re all kind of part of that same law enforcement group, and all of our numbers are down,” said Wagoner, who recently joined the general counsel staff at the Illinois State Police.
‘A calling’
But more than schooling, scores and the SAFE-T Act, being a prosecutor simply isn’t for everyone.
“It's a calling,” Reynolds said. Especially when it comes to reviewing evidence that can be graphic, “you kind of see the worst of the worst of society, so it’s important that they want to do this, they’re interested in doing it. I think it takes a certain type of personality and a certain type of person to be able to do that.”
The state’s attorney said the wider community could begin to feel the effects of the prosecutor shortage, too.
“We will obviously do whatever we can to avoid any type of real impact on the community, but cases will just logistically move slower; it will take us longer to screen more significant cases,” she said.
Under the Sixth Amendment of the U.S. Constitution, defendants have the right to a speedy trial. With a shortage of prosecutors in the state’s attorney’s office, cases that go to trial sooner than expected might be tried by an attorney who wouldn’t ordinarily be assigned to them, as the attorneys try to spread out the workload.
In 2020, the McLean County Board contracted Wagoner to help with bearing the brunt of multiple murder trials that were set to begin that summer.
“In order to get the most skilled attorneys on those cases, because that’s what’s most appropriate in those circumstances, and then also give those attorneys time to prep, it made sense to bring her in,” Reynolds said, adding that she would pursue that option again if needed.
“The victims and the community deserve to have people that are skilled on those cases, that are prepared on those cases. Our office knows the importance of that, and not only me, but all of the other assistant state’s attorneys understand that that is necessary and they’ll do whatever they can.”
Some state’s attorneys have gone as far as not charging less significant charges because they “simply don’t have time to process those cases,” Reynolds said, though she noted that has not been their practice in McLean County. “That would obviously be the nuclear option in addressing the issue.”
On the other side of the courtroom, some departures have left the McLean County Public Defender’s Office reorganizing in the last few years to ensure they can take on new cases as they arise. Those departures include Judge Carla Barnes, who served as chief public defender for about seven years before she was sworn in as the 11th Judicial Circuit’s first Black judge in 2021.
Herald & Review reporter Tony Reid contributed to this report.
Correction: An earlier version of this story had the wrong length for the bar exam. This version has been corrected.
10 ways legal discovery has changed throughout history
10 ways legal discovery has changed throughout history
Legal discovery is a formal exchange of information between parties in a legal dispute. It takes place at the beginning of legal proceedings and exists to acquire evidence that may be used at trial. From the time the Federal Rules of Civil Procedure were established in 1938—which established common ground rules for discovery—rules governing the process have changed and evolved along with society itself.
One of the most seismic changes to occur with respect to discovery came about through the rise of the internet. Electronic communications and records, including social media, have become major sources of evidence that parties may wish to exchange before a trial. This has led to a new term, ediscovery, which covers using electronic evidence. It was first used to refer to email exclusively, but it is now used for all types of electronic documents, records, and evidence.
As technology continues to evolve, future challenges and opportunities in the field of discovery will evolve along with them. Policies governing the proper procedures for discovery will likewise continue to shift and change. With this continual evolution in mind, Zapproved considered the way legal discovery has changed throughout history. Read on for 10 of the most significant legal discovery developments.
1937-38: Federal Rules of Civil Procedure established
The Federal Rules of Civil Procedure govern civil proceedings in United States district courts. Their purpose is to provide clear and fair processes, procedures, and rules for each step of a trial. In 1937, no less than the Supreme Court of the United States established the rules, which were sent to Congress in 1938 and adopted the same year. The rules are meant to simplify and clarify legal procedures. The United States Attorney for the Southern District of New York at the time called the rules “but a means to an end, means to the enforcement of substantive justice.”
1966: Freedom of Information Act offers new avenues for discovery
The 1966 Freedom of Information Act (FOIA) offered lawyers a new way to access information before going to trial. The FOIA requires full or partial disclosure of previously unreleased documents held by the United States upon request in specific circumstances. Often used by journalists, the FOIA also has implications for lawyers engaged in legal discovery. It allows lawyers a new way to collect information they may use in legal proceedings. However, lawyers are constrained in using FOIA for discovery because they may use it to collect records only if they are party to a judicial or administrative proceeding that includes provisions for discovery.
1994: Subpoenas through certified mail are allowed
In 1994, a court ruled subpoenas could be delivered through certified mail. Previously, they could only be delivered in person. This allowed people to simply avoid being home when subpoenas might be delivered, whereas the new rule made it more difficult for people to avoid being served. The internet has further transformed this process. A subpoena may now also be served by email. These new ways to subpoena for information give lawyers more tools in their toolkits in terms of gathering information.
2000s: Rising costs of discovery
In the 2000s, the costs of discovery began to rise. Historically, trial costs have been the most expensive part of legal proceedings. But lawyers began recounting in the 2000s the cost of discovery began to outstrip the cost of trials. One of the most significant impacts of this rising cost is as it pertains to class action suits. Millions of dollars may be required to undertake discovery for a class action suit. This can make finding a funder for such a case difficult.
2006: Rule 37 and the destruction of digital evidence
In 2006, the rising primacy of the internet in communications led to a new rule regarding digital evidence. The rule now stipulates that reasonable steps must be taken to preserve digital evidence. This includes emails and other digital files. The purpose of this law is so people do not destroy digital evidence they should have reasonably saved. This makes it easier for lawyers to later use these materials for the purposes of discovery.
2010s: Finding facts through social media
Social media created an entirely new way for lawyers to find relevant information during discovery. Tweets, Instagram posts, and Snapchats can geotag where people were at specific time periods to be used as evidence. Similarly, Slack records can be used by lawyers working on a workplace case to show what people in the company were discussing. Even comments and likes on others’ posts can be used in discovery. In fact, any platform where people congregate and collaborate can be used.
2010s: Evolving protocol for electronically stored information
Proper procedures for electronically stored information continued evolving throughout the 2010s. New rules govern how electronic information is accessed during discovery. During the initial phase, lawyers for the parties involved must meet to discuss how electronic records will be accessed and shared. These typically informal meetings between lawyers are treated as legally binding. They are sent to the judge and entered as a formal order, which both parties must abide by.
April 2015: Supreme Court’s far-reaching changes to the Federal Rules of Civil Procedure
In 2015, major changes went into effect with the Federal Rules of Civil Procedure. These rule changes include those to the scope of discovery. The purpose of these changes was to return discovery to its original intended purpose, which is to provide access to documents specifically relevant to the case at hand. These changes—enacted by the Supreme Court—also address preservation for the first time formally. They do so by standardizing practices for saving electronic information.
2020: Virtual depositions
The coronavirus pandemic upended life across the globe, and legal discovery was no exception. Virtual depositions, usually done over Zoom, rose in 2020. And like other facets of the pandemic, like remote work, they may be here to stay. They minimize costs for all parties and make it easier for people to conduct multiple depositions in a day because of diminished travel time. Therefore, many lawyers believe that virtual depositions are likely to become permanent.
Looking ahead: Obtaining personal data through new technologies
From Fitbits to at-home DNA testing, personal health data is also working its way into the discovery process. As technology moves into even more facets of everyday life, the data collected may soon be used during discovery. For example, Fitbits may be able to track if a person went walking on a day they claimed to be at home. A DNA test may be used in paternity cases. These new modes of data collection and information may present new legal challenges and rules modifications down the line.
This story originally appeared on Zapproved and was produced and distributed in partnership with Stacker Studio.
Contact Kelsey Watznauer at (309) 820-3254. Follow her on Twitter: @kwatznauer.
"We will obviously do whatever we can to avoid any type of real impact on the community, but cases will just logistically move slower."
— Erika Reynolds, McLean County State's Attorney
Kelsey Watznauer
City Editor
