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Gray area clouds rights of suspect in custody
By Trish Lichtenstein and Dave McKinney | Daily Herald Staff
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Published: 8/4/2009 5:03 PM | Updated: 8/4/2009 10:12 PM

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Originally published Jan. 12, 1993

When describing the rights of suspects, Illinois law is at best open to interpretation.

Suspects can be held for questioning an indefinite length of time. While most police departments operate on a loose 48-hour rule, law does not mandate that suspects be charged or set free in a specific amount of time. "The standard is reasonableness," said Patrick O'Brien, a Cook County assistant stale's attorney, 'set up on a case-by-case basis.'

Case law has narrowed the parameters of the rather ambiguous statute.

"Forty-eight hours has been held (by courts) as a permissible amount of time," Brien said. "It depends on each case what is reasonable. What might be a long period of time and permissible in one case might not be in another."

In the case of Martin E. Blake, released without charge Monday after about 48 hours in police custody, police were not bound to release him, acknowledged Cook County State's Attorney Jack O'Malley.

"It would be ultimately up to a judge," O'Malley said Monday at a news conference. "Lawyers could have gone in and gotten a writ of habeas corpus to seek his release and then we could have discussed that with a judge."

Habeas corpus orders a person in custody to be brought before the court, and places the burden of proof on police to justify his detention.

Walt Gasior, deputy chief of the Palatine Police Department, said Blake submitted willingly to questioning and that police labored to be sure his rights were protected.

But other attorneys and law professors, looking at the case as an exercise, said that may be a point of contention

"They certainly have a right to question him, but I don't believe they should hold him without formally charging him with something, not for 48 hours," said Gerald Getty the former public defender who represented Richard Speck in the mid 1960s

David Thomas, a criminal law professor at Illinois Institute of Technology Kent College of Law, said there was little doubt that police believed they had probable cause to arrest Blake Saturday.

"If police came to his apartment, took him to the station at gunpoint, interrogated him for 48 hours and searched his apartment with a search warrant, I can't imagine that not being an arrest," Thomas said.

When police bring a suspect in for questioning, it's no guarantee that formal charges are imminent.

A lot of publicity was generated in 1982 when Kevin Masterson, a DuPage County man, was arrested and questioned in connection with the Tylenol murders, presumably because he harbored a grudge against Jewel Food stores.

He was released and never charged, and today is considered wholly innocent. Those murders have never been solved.

Nothing in state statutes precludes a police department from holding someone for questioning, releasing them and then pressing charges at a later date, the experts said.

James Paese, a Cook County public defender, said Illinois has no statute of limitations on murder.