by Attorney Eric D. PuryearUnder Illinois law, a person charged with a crime has the right to have a judge removed from their case under certain conditions. That right to substitute a judge is an important right in Illinois.
725 ILCS 5/114-5 is the portion of the Illinois Compiled Statutes that governs substitution of a judge from a criminal case in Illinois, and provides as follows:
(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.
(b) Within 24 hours after a motion is made for substitution of judge in a cause with multiple defendants each defendant shall have the right to move in accordance with subsection (a) of this Section for a substitution of one judge. The total number of judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a judge.
(c) Within 10 days after a cause has been placed on the trial call of a judge the State may move the court in writing for a substitution of that judge on the ground that such judge is prejudiced against the State. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The State may name only one judge as prejudiced, pursuant to this subsection.
(d) In addition to the provisions of subsections (a), (b) and (c) of this Section the State or any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes. If the motion is allowed, the case shall be assigned to a judge not named in the motion. If the motion is denied the case shall be assigned back to the judge named in the motion.
Paragraphs (a), (b), and (c) provide for a quite powerful right of substitution in Illinois that cannot be stopped by the prosecution or by a judge. As long as the Defendant timely files a Motion to Substitute, a judge (or even 2 if the charge is serious enough) can be removed from the criminal case. However, it is vital that the Motion to Substitute by filed within the time limits, or the Motion will be denied by the court as untimely.
The final paragraph, (d), provides for a means of substituting a judge from an Illinois criminal case if there is a good reason for that removal. A good reason would include the judge being biased or prejudiced against the Defendant. Removing a judge from a criminal case for cause is rather difficult, but can be accomplished when there is a sufficiently strong reason for the removal.