A pair of McLean County judges said they’ve noticed an uptick in self-representation as the state gears up to implement sweeping changes to the public defense system. Artificial intelligence is also making its way into their courtrooms as litigants seek help from tools like ChatGPT.
Gov. JB Pritzker signed the Funded Advocacy and Independent Representation Act, referred to as the FAIR Act, into law last August, setting off a two-year timeline to establish a statewide public defender’s office designed to add oversight and independence among public defenders.
Illinois was one of few states who did not have a state public defender already.
Casey Costigan, chief judge of the 11th Judicial Circuit, oversees the courts in McLean, Ford, Livingston, Logan and Woodford counties. He’s also serving on the transition committee as a judicial liaison charged with implementing the FAIR Act.
A primary goal of the legislation is to ease caseloads among overworked public defenders and add much needed paralegals, investigators and social workers to that system.
“Public defenders are overworked, there is no doubt about it,” Costigan said. “But they’re very good attorneys and they make do with what they have. The fact that they can’t give that white glove treatment to their clients, to where maybe a private attorney could sit and talk with them for an hour or two, a public defender might be spending 20 minutes with them to get the information. That’s just the nature of their work.”
Costigan said when people attempt to go pro se, a term for self-representation without an attorney, they find out very quickly how difficult it is.
ChatGPT, esquire
Associate Judge Amy McFarland said she’s seen a growing number of pro se litigants using artificial intelligence to assist them with preparing documents and verbal arguments.
“I have, on occasion, admonished defendants that ChatGPT didn’t go to law school,” she said. “If you’re going to use that, you’d better understand what it says and be prepared for that.
“Attorneys are getting sanctioned for using AI and having hallucinations [give] incorrect information. I’m not going to sanction a defendant for using that, but [want them] to be aware that what they’re getting is not what they think they’re getting."
“There has to be the ability of the attorney to think on their feet when something comes up to make the appropriate objections,” Costigan said. “To listen to what a witness is saying and be able to tailor questions or a cross examination to what is being said at the time.”
And as anyone who’s visited the Law and Justice Center can attest, phones are not allowed in the courtroom.
“There’s been many times to where somebody has represented themselves pro se and has asked a question that has totally sunk their case,” Costigan said. “It’s unfortunate, because they don’t know what they’re asking and the effects that it may have.”
Costigan said those procedural mistakes can be leveraged by skilled prosecutors.
Keeping it fair
Judges may also be tasked with directing pro se defendants to ensure procedures are followed and their right to a fair trial is upheld.
“We’re not an advocate for either party, but we are responsible for making sure things are as fair as can be,” Costigan said. “It’s a fine line, sometimes, when somebody represents themselves to let them ask their questions even though they may be detrimental to their case and refraining from stepping in because that’s the choice that they’ve made.”
McFarland said public defenders also have home-field advantage.
“Public defenders are generally in the same courtroom day in and day out,” she said. “They know that judge. They know what that judge is liable to do under certain circumstances. They know what the state is willing to offer or what the negotiation points are.”
McFarland said that can be a benefit even compared to private attorneys helicoptered in from a different jurisdiction, saying they sometimes “promise their clients things they can’t deliver once they walk in.”
