How long do prosecutors have to fix an indictment?

The cops thought it was cocaine. The crime lab ran a test and it came back fentanyl. For the prosecutor’s office, that’s an easy fix: You amend the indictment and change “cocaine” to “fentanyl.”

Only nobody fixed it after the lab reports came in.

An appeals court had to get involved and now the case against Luis Figueroa Silva is headed back to La Salle County Circuit Court. The appellate justices ruled recently they don’t have jurisdiction to decide whether the oversight should unravel Silva’s case – and so it’s going back to the prosecutor’s office.

La Salle County State’s Attorney Todd Martin said he has to hit the books before deciding what to do next.

“This is a case that I inherited from the prior administration and one that I was not previously involved with,” Martin said. “As such, I am attempting to determine the appropriate procedure in order to move forward, if there is one.

“There were multiple missteps made here and I am very concerned that these missteps may possibly have permanent consequences as to one or both cases.”

Here’s what happened.

Silva was charged after a fall 2018 traffic stop (he wasn’t driving) in which state police seized nearly 1,000 grams of a substance that field-tested positive for cocaine. Silva and the driver were charged with unlawful possession of a controlled substance with intent to deliver – and facing a long trip to prison if convicted.

Early the next year, lab reports showed the substance was fentanyl, not cocaine. Prosecutors have the right to amend indictments; but not doing so, argued Silva and Morris attorney James Durkee, was grounds for dismissal. Prosecutors countered they should be permitted to amend the indictment after the fact.

Karen Donnelly was state’s attorney when Silva first was charged. She issued a statement addressing the sequence of events.

“This was a case where the backlog in the state lab affected our charging decision,” Donnelly wrote. “The cocaine found on Mr. Figueroa Silva was field-tested and determined to be cocaine. Once sent to the state crime lab for testing, it was learned the subject substance was straight fentanyl, thus requiring us to amend the indictment to conform to the evidence.”

Judge Cynthia M. Raccuglia denied the state’s request to amend the indictment but also granted prosecutors a chance to appeal her denial.

The driver, incidentally, got a different outcome. Antonio Alatorre and his lawyer, La Salle attorney Louis Bertrand, argued the state violated Alatorre’s due process and speedy-trial rights. Chief Judge H. Chris Ryan Jr. agreed and threw out the charge.

Bertrand called the procedural history of the case “one of the strangest” he’d ever been involved in. As weeks passed and nothing was done to amend the indictment, he said, “my client’s right to have the case dismissed then became obvious to me.”

“As an attorney it was a good thing for my client, but I still wonder about the inaction of the prosecution,” Bertrand said. “There was a lot of fentanyl confiscated.”

Recently, the 3rd District Appellate Court issued a ruling on Silva – but it didn’t do much to answer any questions by the judge, prosecutors, Silva or Durkee. (Durkee declined to comment at this stage of a still-active case.)

Justices Tom Lytton and William Holdridge declined to take up the question of whether prosecutors still had the right to amend the indictment against Silva, citing procedural issues that kept the appeals court from even having jurisdiction.

“Because (Silva) remained on bond and the court contemplated further proceedings after it entered its order, the order did not have the substantive effect of dismissing the charge against (Silva) and, thus, was not appealable by the state,” Lytton wrote. “We dismiss the state’s appeal for lack of jurisdiction.”

But a third justice disagreed and said, yes, the state does have the right to belatedly amend the indictment. Though Silva (and Alatorre) argued failing to replace “cocaine” with “fentanyl” was a serious defect, Justice Dan Schmidt disagreed and said if it were up to him the state would get the green light to amend the indictment.

“The old adage goes that a prosecutor can convince a grand jury to indict a ham sandwich,” Schmidt wrote. “However, (Silva) would have us believe that somehow the result here would differ if the grand jury were, instead, presented with evidence that he was in possession with the intent to deliver a controlled substance exponentially more lethal than the substance the grand jury actually indicted him on. Nonsense. Whether the prosecutor told the grand jury the powder found in the vehicle was cocaine or fentanyl, the result undoubtedly would be the same.”

Donnelly advanced the argument, later adopted by Schmidt, that the oversight wasn’t fatal to the case.

“The denial of our motion by Judge Raccuglia effectively ended our case, thus requiring the filing of a certificate of impairment and appealing her ruling,” she wrote. “While the Appellate Court affirmed Judge Raccuglia, the lengthy dissent by Justice Schmidt is the better argument, in my opinion. The cases cited by Justice Schmidt also support our position.”

Donnelly further noted the found it “interesting” that the appellate court issued a Rule 23 decision, which means the ruling isn’t intended to be precedent-setting.