A defense attorney for a Michigan man charged with his wife’s 1988 murder in Joliet Township does not believe the SAFE-T Act applies to him.

Will County Judge Art Smigielski scheduled a hearing for Jan. 23 to hear arguments on whether Gilbert Bernal, 82, can be held in jail under a law that eliminated cash bail in 2023.

Although Illinois has no cash bail, defendants can still be held in jail if they are charged with certain offenses and if there are no conditions that can mitigate the risks of their pretrial release.

In Bernal’s case, he’s charged with the first-degree murder of his wife, Joan Bernal, 34, on Dec. 9, 1988 in Joliet Township. Prosecutors have petitioned Bernal to stay in jail under the SAFE-T Act.

Bernal was charged with his wife’s murder last December.

But Bernal was previously charged with his wife’s murder in 1993 but prosecutors later dropped the case in light of defense witnesses who claimed to have seen Joan after she disappeared.

After the first case was charged in 1993, a Will County judge set Gilbert Sr.’s bail at $1 million, court records show.

Prosecutors requested no bail for Gilbert Sr. because they feared he would flee to another country and he has ties to Mexico, according to a 1993 article from The Herald-News.

But Bernal’s attorney, Dave Carlson, told Smigielski on Monday that a judge had lowered that bond to $250,000 and Bernal posted 10% of that amount to secure his jail release.

Carlson said Bernal’s case was first charged before the SAFE-T Act and he believes the old cash bail system should apply to Bernal.

Will County State’s Attorney James Glasgow had once joined statewide litigation in 2022 to stop the elimination of cash bail. The Illinois Supreme Court upheld the cashless bail nevertheless.

Carlson himself was also critical of the SAFE-T Act when he was on the bench when he ordered the release of Jeremy Boshears, 40, an ex-Joliet Outlaws member charged with murder of Katie Kearns, 24, in 2017.

Glasgow’s prosecutors have needed to defend the requirements of the SAFE-T Act in the Boshears’ case and another case involving David Grijalva, 23, of Joliet.

Grijalva had been seeking jail release in the 2021 Halloween mass shooting case by using the cash bail system. A judge later vacated the court order for Grijalva’s cash bail release following objections from prosecutors.