THE March 2013
DVol.20, No.3O The COfficial PublicaKtion of the LakeE County Bar AT ssociation
GPiudblice Doenfen devrs. in LWake Caouinnty: wA Rirchi gHishtort y, A Promising Future
George Pease Michael Melius Marshall Hartman Joseph Collina David Brodsky Joy Gossman 1972 – 1983 1983 – 1987 1987 – 1991 1991 – 1997 1997 – 2007 2007 – Present
Inside this issue... Locally Focused CLE: Meeting the Needs of LCBA Members 2 by Christopher T. Boadt and Richard Kopsick The President’s Page: If You Cannot Afford an Attorney, One will be Appointed for You 3 by Marjorie Sher The Chief Judge’s Page: Our Public Defenders by Chief Judge Fred Foreman 5 A publication of the The Growing Role of the Public Defender: New Challenges – the Same Commitment 8 by Kat Hatch Beyond the Name: Clarence Gideon Before, During and After His Famous Trial 9 by John Bailey Devil’s Advocate 11 by Cynthia Pruim Haran I Want a Real Lawyer: Indigent Criminal Defense in the Era of “Civil” 300 Grand Avenue, Suite A 13 Proceedings in the Criminal Justice System Waukegan, Illinois 60085 by Jeffrey Facklam and John Radosevich Phone: (847) 244-3143 View from the New Guy Fax: (847) 244-8259 19 by Damien Clark www.lakebar.org [email protected] Defending the Innocent/Advising an Innocent Client to Plea 20 by Sharmila Manak 2012-2013 Officers & Directors Marjorie Sher, President The Rise of the Defender Movement: a Recollection Steven P. McCollum, First Vice-President 21 by Marshall Hartman Keith Grant, Second Vice-President Michael J. Conway, Treasurer Have You Hugged a Sex Offender Today? Well, You Should and Here’s Why Michael J. Ori, Secretary 23 by Kathleen McGee Perry S. Smith, Jr., Immediate Past President Gary Schlesinger Meddlesome Weirdo Still Employed: An Evolutionary View of the PubDef Mark A. Van Donselaar Investigations Division Hon. Daniel B. Shanes 25 by David Asma Donald J. Morrison Carey J. Schiever So, What does a Public Defender do all Day Long? Brian J. Lewis 27 by Joy Gossman Editorial Board Michael S. Strauss, Co-editor Gideon’s Children: A Brief History of the Public Defender Movement Rebecca J. Whitcombe, Co-editor 29 by Keith Grant Jeffrey Berman Ann Buche Conroy Meeting Minutes: January 2013 Hon. Michael J. Fusz 32 by Michael Ori Deborah L. Goldberg Rachel He yman Daniel L. Jasica 36 Foundation: Our Donors Future Fundraising Hon. Charles D. Johnson Daniel Sean Patrick Lacy Hon. Raymond J. McKoski
A ADR Systems Lake Effect Holdings, LLC 33 10 Stephen J. Rice
d Attorneys Title Guaranty Fund, Inc. McDonald Hopkins LLC Back Front Neal A. Simon v 11 David L. Gates & Associates 22 Neil H. Good Hon. James K. Simonian e 19 Deposition Reporters 34 Soffietti, Johnson, Teegen, Phillips & Ar - Hon. Daniel B. Shanes r 12 ISBA Mutual Insurance gueta, Ltd. t Timothy J. Storm
i 34 Johnson Law Center 16 Superior Remodeling s Joseph Modica & Associates, Ltd. 19 T&T Reproduction & Supplies
e 14 Staff
r 34 L & L Reporting Services, Inc. 31 The Gordon Financial Group of Wells Christopher T. Boadt, Executive Director s 6 Lake Cook Reporting Fargo Virginia Elliott, Program Administrator 35 Lakeside Investigations 11 Vahl Reporting Service 2 The Docket March 2013 Locally Focused CLE Meeting the Needs of LCBA Members
n the 2012 calendar year, the Lake County Bar Association CLE Commit - tee offered 58 hours of CLE programs at an hourly rate of $25 per hour. IThis tuition rate is significantly lower than other CLE providers in Illinois. A Note About Price is not the only significant aspect of our CLE offerings; our programs are generally presented by local practitioners for local practitioners…you learn This Issue... skills and tips that you can put to work in Lake County. o honor the 50th anniversary of Additionally, we offered over 25 hours of free CLE the U.S. Supreme Court’s land - programs over the noon hour at the LCBA office and mark decision in Gideon v. Wain - T at committee meetings throughout the year. These wright (ensuring that no indigent defendant would face prosecution with - programs are an excellent way to take advantage of out assistance of counsel), the Lake your LCBA membership, so please keep an eye on County Bar Association has graciously the calendar for a complete list of available pro - agreed to publish an issue of The Docket grams. dedicated to the Public Defender Move - ment and the Lake County Public De - We’re now a few months away from the June 30 fender’s Office. The 39 attorneys who MCLE deadline for attorneys whose last name be - make up the Public Defender’s Office con - By stitute one of the largest single-office gins with N-Z. If you still need to complete your 30 membership blocks in the LCBA and we Christopher hours for this 2-year period (24 regular hours plus are proud of our membership in and T. Boadt 6 Professionalism and Ethics hours), there are still commitment to the LCBA. In this issue several seminars scheduled, including a much-an - we have attempted to share with our fel - ticipated “View from the Bench” seminar which the low Association members the history and culture of indigent criminal defense that Committee just scheduled for June 13, 2013, fea - we are so deeply dedicated to. You will turing six of our Lake County judges from the civil, find articles detailing the history of the criminal, and family law branches in a panel for - Defender Movement, the Gideon decision mat, discussing topics relevant to local attorneys. and the Lake County Public Defender (which actually pre-dates the mandate of The CLE Committee also plans to present Brown Gideon ). You will also find articles by sev - Bag presentations taken from recent major practice eral of us detailing the challenges, both legal and personal, we confront as we do area seminars such as Criminal, Family, and Civil, this job we hold so dear. You may be sur - By to be presented in half-hour and one-hour blocks, prised to learn the diversity of the areas without charge to LCBA members. where we now practice and we hope Richard you’ll be impressed by the rich legacy we Kopsick As always, we value your input and constructive are heir to. Today, our alumnae can be criticism, so please do not hesitate to contact com - found in any courtroom in this county mittee members Richard Kopsick, Keith Grant, Janelle Christensen, Ari and a number have ascended to the Bench. This issue of The Docket is our way Fisz, and David Gordon with any input. of welcoming our fellow Bar Association members into our offices and our prac - Please visit www.lakebar.org and check out the “Calendar” section for up - tice, to offer some insight into what we do coming seminars and committee meetings. and why we do it. We take our jobs very seriously, but ourselves less-so (please enjoy our photos taken back when we Reproduction in whole or part without permission is prohibited. The opinions and positions stated in each started with the Office). We thank signed material are those of the authors and not necessarily those of the Association or its members. you for this opportunity. All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are The Lake County Public Defender’s Office subject to editing. Publications of advertisements is not to be considered as an endorsement of any prod - uct or service advertised unless otherwise stated. March 2013 The Docket 3
The President’s Page by Marjorie Sher
If You Cannot Afford an Attorney, One will be Appointed for You
think every attorney, and probably litigants. These attorneys are trained to better serve their clients. This seminar anyone who watches television can defend criminal litigants, and in my opin - could hardly be successful without the Irecite the Miranda warnings by heart: ion, these attorneys are greatly under ap - hard work of the Committee Chairmen, preciated. I have heard criminal Tom Gurewitz and Kevin Kane, as well as “If you cannot afford an attorney, one defendants say that they want a “real Chris Boadt and Virginia Elliot. The Fam - will be appointed for you...” lawyer” and not a Public Defender while ily Law Committee thanks you for taking in court. I often wonder what a “real This is something that everyone in Amer - the time to make it both informative and lawyer” is if not the attorneys at the Pub - ica takes for granted: that you have a right fun. During the trip I heard musings about lic Defender’s Office who are devoted to to have a criminal defense attorney ap - the 20th Anniversary of the Family Law making sure that each litigant has the pointed if you cannot afford an attorney. Committee’s out-of-state soiree, which, it best defense possi - However, it wasn’t always this way. Prior ble, who have ob - to 1963 only a small subset of criminal lit - tained hundreds of igants were afforded the right to have hours of trial expe - counsel, and that was only when the de - rience and who are fendant was 1) charged with a capital of - compassionate, dili - fense or something that involved a Welcome gent and intelligent. complex trial or 2) special circumstances. Personally, I would New LCBA Members However, this all changed when a pro se like to thank each litigant named Clarence Gideon sued a and every Public Attorneys correctional facility in Florida and stated Defender for engag - Thomas Moran Jennifer Weiner that his constitutional rights had been vi - ing in a very diffi - Ahem & Moran LLC Kovitz, Shifrin, Nesbit P.C. olated according to his Sixth Amendment cult, yet rewarding Bridget Owens Kevin Kuhn rights, as applied to the States by the Four - job. Prairie State Legal Services Kuhn Firm, P.C. teenth Amendment to the Constitution. The United States Supreme Court, in its Bar Activities Christopher Hughes wisdom, held that every criminal defen - and Amusements Gartner Law Offices dant was entitled to a defense attorney, re - Over President’s gardless of that litigant’s education, Day weekend, the Associates wealth or class. Family Law Com - Joseph Rivera Steve Brunke mittee traveled to Lake County State’s PNC Bank In celebration of the 50th Anniversary of San Diego, Califor - Attorney- Investigator Andrew Marwede the decision in Gideon v. Wainwright ,1 this nia to put their col - Leiah Kellbach Forum Financial Docket edition has been devoted to the lective noses to the Gibson & Associates Management LLC Public Defender’s Office and those attor - grindstone and neys who diligently serve the State of Illi - learn more about Sally Fleissner Scott Peterson nois by defending indigent criminal the law and how to Wiejaczka Law P.C. PNC Bank
1 372 U.S. 335 (1963). 4 The Docket March 2013
has been said, will take place in New Or - Guaranty. I know that Rebecca McNeill complicated proposal, which is both more leans, Louisiana. Save some time next and Jerry Lee have worked diligently to involved and time consuming than I ini - April, 2014 to enjoy all that New Orleans make sure that this will be a quality sem - tially imagined. Yet this will not thwart has to offer. inar. the Lake County Bar Association. Thanks As you read this, we are in the midst of The Doctor/Lawyer Dinner is scheduled to the continuing efforts of Chris Boadt, People’s Law School. Thanks to the efforts for March 14 at Highland Park County Kathleen Ryan and Elizabeth Rochford, of Pamela Kuzniar and Carey Schiever, on Club. The Lake County Bar Association this program will become a reality, just not four consecutive Tuesday evenings in Feb - Membership luncheon meeting is sched - as soon as I had hoped. Look for this pro - ruary and March at the College of Lake uled for March 12 at Milan Banquet Hall. gram in the future, and as always, I en - County, fellow Lake County Bar Associa - At this event we will be honoring the re - courage you to participate. tion Members are presenting a variety of cipients of the Access to Justice Awards. legal topics to non-lawyers. In the past, I Please join me and other LCBA members In closing, I am constantly amazed by the have always been impressed by the qual - at both of these events. willingness of Lake County Bar Associa - ity of speakers, the number of attendees tion members to volunteer their time to and the way that lawyers can educate in - And Yet More Community Service dividuals who are not schooled in the law. For my President’s year I had proposed become involved in the community, This year is no exception. Each and every that the Lake County Bar Association whether it is planning a seminar, volun - volunteer lawyer should be proud of their sponsor a Wills for Heroes event. If you teering at People’s Law School or working efforts and their presentations. haven’t heard me speak or write about on the Wills for Heroes program. There this project, it is a project wherein mem - are so many opportunities for members to Upcoming events include the Real Estate bers of the Lake County Bar Association Committee Seminar, which is scheduled to will help provide simple wills to first re - contribute and give back to the commu - take place at Greenbelt Cultural Center sponders. When I first planned to launch nity. I am proud to call myself an LCBA from 8:30 a.m. to 4:30 p.m. on March 7, this program, I thought it would be an member, in part because of those who with a lunch sponsored by Attorneys’ Title easy task. However, in reality it is a very give so much of their time to help others. The President’ s Award Dinner February 22, 2013 • The Marriott Lincolnshire Resort
Gary L. Schlesinger Hon. Raymond J. McKoski Kathleen Hennessy Ryan Lifetime Achievement Award (Retired) Humanitarian Award Legal Scholar Award 50 Year Honorees Arnold D. Goldstein (‘63) Richard Kissel (‘62) James Fouts (‘62) Jerome Foreman (‘62) R. Gilman Johnson (‘63) Carmen Speranza (‘62) March 2013 The Docket 5
The Chief Judge’s Page by Chief Judge Fred Foreman Our Public Defenders
his month’s issue of The Docket 1963, most defendants retained private time Assistant Public Defender in the recognizes the significance of the counsel, or on occasion, the court would Fall of 1974. Soon after we were joined TSupreme Court’s decision in appoint a member of the local bar as by Mike Graham, Jerry Wilson and Gideon v. Wainwright on March 18, counsel. Eventually, Bob Will assumed many others. The office enjoyed an ex - 1963, and the impact the case had on the role as Public Defender until 1972 cellent reputation. Young attorneys who the American system of justice. Simply when George Pease was appointed Pub - joined the office such as Steve Walter, stated, the Court ruled that a fair trial lic Defender by Chief Judge LaVerne Tom Smoker and Craig Linn had the “cannot be realized if the poor man Dixon. George soon after recruited a benefit of mentors from the private bar, charged with the crime has to face his lawyer by the name of Robert Hauser, a including Charlie Wilson, Bob Will, Jed accusers without a lawyer to assist recent Harvard Law School graduate Stone, Peter Collins and Ben Ori. him.” The “Warren Court” held that the from a corporate law firm in Chicago. Sixth Amendment right to counsel is a The tradition of contract private attor - fundamental right, applied to the States Bob recalls that the Public Defender’s neys working with Assistant Public De - via the Fourteenth Amendment to the Office was located on the third floor of fenders was carried on by successor United States Constitution’s due process the Courthouse. He and George paid a public defenders Mike Melius, Marshall clause, and requires that indigent crim - visit to then State’s Attorney Jack Hartman, Joe Collina, David Brodsky inal defendants be provided counsel at Hoogasian to borrow office supplies and Joy Gossman. The lawyers from the trial. 1 until a budget could be approved. Today “P.D.’s Office” are highly regarded by the the office employs 33 attorneys with a Judiciary and the State’s Attorney for This landmark case is just one of many budget of five mil - 50 year anniversaries of the events of lion dollars. 1963. The Kennedy Assassination, Mar - tin Luther King’s “I have a dream” I joined the Public speech, Beatle mania and the escalation Defender’s Office THANK YOU! of the Viet Nam war all happened in as an intern in the 1963. That year Waukegan was the summer of 1973. Mike Boyd was The following attorneys home for Lake County’s business, social have accepted Pro Bono cases through and legal community. Downtown the only fulltime Waukegan was home to the Academy, assistant with Prairie State Legal Services. Genesee and Times theatres, Lindberg’s George. Robert Men’s Store, Heins and Globe Department Hauser, Tom Han - Deanna Bowen Burr Anderson Stores, a Walgreens and the Burgundy nigan, Jim De - Room. The Lake County Bar Association Santo and Bill Lori Berdenis Ann Conroy and the Judiciary were planning for the Block were in pri - construction of a new courthouse at the vate practice but Michael Thad Gruchot corner of County and Washington were paid Cavanaugh Streets. Déjà vu all over again. $10,000 per year Brian T. Wendt as parttime assis - Lucy Dorenfeld Although there were many high profile tants. I became criminal cases pending in the courts in the second full - To volunteer, please contact Susan Perlman at [email protected] or 847-662-6925. 1 372 v.s. 335, 342-45 (1963) 6 The Docket March 2013
the quality of legal representation of - legal clinics and law centers to assist in - Waukegan to enhance legal services for fered to their clients. Bill Block was ap - digent clients in appeals and post-con - post-conviction and expungement pro - pointed an Associate Judge in 1975 and viction matters. The Office of the State ceedings. was followed by Judges George Pease, Appellate Defender provides superb ad - Steve Walter, Tom Smoker, Al Wysocki, vocacy for indigent appeals. The Judici - We celebrate the fifty years of contribu - Val Ceckowski, David Brodsky and my - ary would welcome the support of the tions by members of the Lake County self, all of whom are alumni of the of - Lake County Bar Foundation in estab - Bar Association and Judiciary in carry - fice. lishing a partnership with a law school ing out the mandate of Gideon, and Several area law schools have sponsored to locate a law center or clinic in pledge to exceed our past efforts. MEMBERS ON THE MOVE David R. Ganfield PO Box 303, Lake Bluff, IL 60044 [email protected] Attorney at Law Jean Henegan 531 S. Princeton, Arlington Heights, IL 60005 847.277.2205 Attorney at Law [email protected] Craig Mandell 300 E. Illinois Road, Suite 200, Lake Forest, IL 60045 847.405.9500 Berger Schatz [email protected] Michael J. Ori 18 N. County St., Waukegan, IL 60085 847.377.3000 Lake County State’s Attorney’s Office [email protected] Joseph E. Polenzani 9 S. County St., Waukegan, IL 60085 847.336.2090 Fox, Lundardi, Zeit & Polenzani [email protected] Robert D. Tepper 311 S. Wacker Drive, Suite 2500, Chicago, IL 60606 312.554.3100 Schenk Annes Tepper Campbell LTD [email protected] If you have recently moved, please notify the LCBA at: [email protected] March 2013 The Docket 7
Can you identify these former Public Defenders / PD Interns now Judges?
1. ______
2. ______
3. ______
1 2 3 4 4. ______
5. ______
6. ______
7. ______
5 6 7 8 8. ______
This letter generously provided from the Daly Family Records
by Dennis Daly
s e h g u H . P n a i r B . n o H . 8
i k s w o k c e C e l t t e o B e i r e l a V . n o H . 7
k a j n o k t o P . S e r o d o e h T . n o H . 6
z i t r O e g r o J . n o H . 5
y k s d o r B . P d i v a D . n o H . 4
n a m e r o F d e r F e g d u J f e i h C . 3
) t i u c r i C l a i c i d u J d n 2 2 ( n o m r a H . M r e h p o t s i r h C . n o H . 2
t t i v e L k r a M . n o H . 1 8 The Docket March 2013 The Growing Role of the Public Defender New Challenges – the Same Commitment hen I first began my career as an needs. 405 ILCS et al. While undergoing Defender becomes involved when a person assistant Public Defender seven treatment, court orders for forced medica - sentenced to work release for nonpayment Wyears ago I knew that I would rep - tion can be sought by the treating physicians of child support absconds. People charged resent a vulnerable population in an adver - and the Public Defender’s office will repre - with criminal contempt of court for violat - sarial setting. I knew that competence, sent the patients in these hearings. Previ - ing the sentence to work release must be rep - confidence and a tough skin would be re - ously these proceedings were staffed by the resented if they are indigent because they are quired to discharge my duties as a Public De - Guardian and Advocacy Commission, but typically facing up to 180 days in jail. fender. What I didn’t realize, was the depth due to budget shortfalls this has become a of the per - Public Defender responsibility. When the mentally ill are brought into con - sonal, eco - tact with the justice system it has a direct nomic and The sexually dangerous/violent person com - and profound impact on the system as a social issues mitment hearings involve the Department of whole. This vulnerable population is dra - faced by the in - Corrections becoming the guardian of a per - matically affected by the lack of community digent popula - son found to be suffering from a ‘mental dis - based treatment services and housing op - tion and the order affecting their emotional or volitional tions which often results in criminal behav - complete lack capacity that predisposes a person to engage ior and/or non-compliance with court of real support in acts of sexual violence.’ 725 ILCS 205/5 directives. My experience has been typical of given by the (from Ch. 38, par. 105-5) The respondent is other Assistant Public Defenders as I have Government to entitled to a jury trial and court appointed struggled to meet the various acute but non- By aid this popula - counsel at the time of the initial commit - criminal needs of my clients. Thankfully, our tion and how ment hearing and at all subsequent recovery office is now able to support us in our efforts Kat Hatch these chal - petition hearings. since Sarah Price has come on board as a lenges would part-time social worker. Sarah provides valu - force me to expand my practice beyond tra - In Padilla v. Kentucky, 559 U.S., 130 S.Ct. able resource information to help compli - ditional “Public Defender” limits. I did not 1473, 176 L.Ed.2d 284 (2010), the ance issues and coordination of services. She know that as a Public Defender I would have Supreme Court held that deportation is a also compiles and interprets a wide array of to be up-to-date and familiar with social particularly severe penalty, intimately re - medical and psychological reports which are services, civil discovery, quasi-civil trial skills lated to the criminal process and thus cov - used to create mitigation packets. and immigration law just to name a few ered under the sixth amendment right to areas into which the role of the Public De - competent counsel. As a result, affirmative Whether coordinating social services, pro - fender now reaching via case law and statu - advice regarding immigration consequences viding immigration advice or representing tory expansion. The common denominator of a criminal conviction must be given and clients in non-criminal proceedings, the mis - throughout the new roles facing Public De - in its absence the defendant may raise an in - sion of a Public Defender never falters; it is to fenders is protecting our clients as they face effective assistance of counsel claim. In order always advocate in the best interests of the the threat of the loss of liberty. to effectively advise our clients correctly re - client. We continue to meet new and unex - garding the arcane complexities of immi - pected demands with flexibility and the same Public Defenders now journey into non- gration law, our office has hired two competence, commitment and thick skin criminal proceedings involving involuntary immigration investigators. Their primary re - that brought me to this work in the first medical/mental health admission hearings sponsibility is to promulgate immigration re - place. Who knows where you’ll find us next, (including forced medication orders) and ports for all of our non-citizen clients in but I’m confident we have what it takes to sexually dangerous/violent person commit - accordance with the standards set forth in meet that next challenge. ment hearings. Defenders are also now re - Padilla. The Defender is then able to use this quired to become immigration law experts, detailed report to help our clients make fully Katharine Hatch became an Assistant Public De - a field where we typically have not practiced. informed decisions regarding their criminal fender in September 2005. Graduated from Mount We are even making inroads into family cases. Holyoke College, attended the London School of Eco - practice, representing delinquent parents in nomics and graduated from the University of Min - some child support matters. The first floor of the Lake County court nesota law school. She is a member of the National house (“Family Court”) is the last place that Association of Drug Court Professionals, the Jeffer - The Illinois involuntary admission law al - a public defender expects to represent a son Inns of Court and the Lake County Bar Associ - lows for the placement of anyone in need of client. However, when a person is delinquent ation. She is a member of the Lake County Drug immediate hospitalization either to protect on child support payments, he can be sen - Court Team and has presented on ethical issues in that person or others from physical harm or tenced to work release until the purge Therapeutic Courts for the LCBA and other pro - if they are unable to care for their own basic amount is satisfied. The Office of the Public grams. March 2013 The Docket 9 Beyond the Name Clarence Gideon Before, During and After His Famous Trial
hile Gideon v. Wainwright 1 may sel.” 4 Unfortunately for Mr. Gideon, the as their testimony was not helpful to his not be as well-known to the United States Supreme Court had said just case. 7 Mr. Gideon did better with his five Wgeneral population as Roe v. the opposite in Betts v. Brady 5 and he had other witnesses, including his landlady Wade , many people have heard the tale of to represent himself. After the trial, Mr. and the cab driver who picked him up the petty criminal whose hand-written pe - Gideon was sentenced to five years in from outside the pool hall. He did not take tition to the Supreme Court ended up giv - prison, the maximum possible sentence. It the stand himself, but did make a closing ing indigent was from Raiford Prison that he wrote his argument. However, after deliberations, people facing famous petition to the Supreme Court. the jury convicted Mr. Gideon. criminal pros - ecution the At the time of his arrest in June of 1961, Illinois, along with 21 other states, filed right to repre - Clarence Gideon was 50 years old. He had amici briefs in support of Gideon. Only sentation. been born in Hannibal, Missouri and, like two states filed briefs in support of While so many of our clients, lived in a single Florida’s position. The case was remanded Gideon’s peti - parent family for a time. Mr. Gideon ran to the Florida Supreme Court with a di - tion brought away from home at a young age and was rection to pay the costs ($592.52). That him a meas - homeless for several periods. His formal Court subsequently ordered Bay County, By ure of fame, it education ended at eighth grade. He went Florida to pay the costs. It is interesting to certainly did to a Missouri juvenile reformatory at 16, note that the Gideon decision caused be - John not bring him then served prison terms in Missouri, tween 1,500-2,000 prisoners to be re - Bailey fortune, and Texas and Kansas. Between 1951 and leased from the Florida Department of in many ways, 1961, Gideon mostly stayed out of trou - Corrections and this was not seen as a Mr. Gideon was representative of the ble. However, that changed when he was necessarily bad thing for the Department. clients our office represents: poor, unedu - arrested for the breaking and entering Louie Wainwright noted that only 13.5% cated, grappling with substance abuse which would lead to his famous petition. of the prisoners released by the decision and trapped in a cycle of criminality. had returned to prison and stated, “The In the first trial, Mr. Gideon did not con - mass exodus from prison may prove that Clarence Gideon was arrested for allegedly duct any voir dire of the jurors. The judge there are many inmates presently in breaking into the Bay Harbor Pool Room asked them basic questions about whether prison who do not need to be there in in Panama City, Florida 2 and stealing a they knew the defendant and whether order to protect society. It may prove that few bottles of wine, beer, Coke and some they would require the state to prove his many more people can be safely released change. On the day of trial, Gideon said guilt beyond a reasonable doubt. Mr. on parole without fear that they will com - that he was not ready to go to trial and Gideon did not excuse any of the jurors mit new crimes. This may well prove to be then asked the Court to appoint an attor - when asked by the judge if he had any ob - the most important lesson we can learn ney to represent him. 3 Under Florida law, jection to them acting as jurors. 6 The State from this Gideon experience.” 8 Even only defendants charged with capital of - called Henry Cook, an eyewitness, and Ira within Florida, some prosecutors were sat - fenses were appointed counsel, so the Strickland, the operator of the pool hall. isfied with the Gideon ruling. Florida Court denied this request. Gideon replied, Mr. Gideon called the two reporting offi - State’s Attorney Richard Gerstein said, “I “The United States Supreme Court says I cers, perhaps not something an experi - am not surprised at the Gideon decision am entitled to be represented by Coun - enced defense attorney would have done, and I thought it was a good thing. It is in
1 372 U.S. 335 (1963). 2 Sadly, the site of the pool hall (109 E. Everitt Ave) is now a parking lot. 3 State of Florida vs. Clarence Earl Gideon , August 4, 1962, (First Trial) p. 2-3. The transcripts of both trials are available at http:www.nacdl.org/Gideon. 4 Id. at 4. 5 316 U.S. 455 (1942). Gideon explicitly overruled Brady . Like Gideon, Brady had been charged with a felony (robbery) in State court. But he had received eight years in prison rather than the five Gideon caught. 6 But he may have wanted to re-think his statement, “They suit me allright (sic), your honor.” First Trial, p. 6. 7 Gideon asked one of the officers the following: “Q: Mr. Pitts, has it ever occurred to you, or did you ever have an idea that I might have broken that window out? A: That’s what you are up here on trial for. Q: But did you ever investigate to see whether or not I broke it out? A: We had an eye-witness to it, Mr. Cook saw you when you came out of the building.” Id at 30-31. 8 Robert Simpson, “Gideon Decision to Benefit Prisoners, Prisons”, St. Petersburg Times, August 14, 1965. 10 The Docket March 2013
keeping with the spirit and tradition in up calling several of the witnesses Gideon next to his father. But, in 1984, the Amer - which we have always approached prose - had called in the first trial. Turner called ican Civil Liberties Union donated a head - cution of criminal cases in the United a witness who did not testify at the first stone. It is inscribed with the saying, States.” 9 And the attorney who argued trial, as well as Mr. Gideon. 11 Mr. Gideon “Each era finds an improvement in law for against Gideon in the United States was acquitted at his second trial on Au - the benefit of mankind.” Supreme Court volunteered in the new gust 5, 1963. Florida public defender system. After his acquittal, Gideon continued to JJohn Bailey became a public defender in No - At his second trial, Clarence Gideon was be involved in the criminal justice system. vember, 1997 when he passed the bar. He at - represented by W. Fred Turner, a local at - He was arrested, tried and fined for public tended the University of Illinois three times: drunkenness at a Fort Lauderdale trailer torney. Mr. Turner was able to impeach B.A. German (1987), MBA (1993), JD park in February, 1965. This time he had Cook, the eye witness called by the prose - counsel appointed to represent him for the (1997). After 10 years defending some of cution, with a prior conviction for auto trial. 12 He was also the victim of a robbery the Office’s most complex cases, John was theft. 10 He also pointed out that Henry in 1966 when he was held up while work - named Chief of the Felony Trial Division. Cook had not told the reporting officer ing at a filling station. 13 John was a Certified Lead Defense Counsel in that he had seen Gideon carrying money away from the scene, only that it looked Clarence Earl Gideon died in 1972 and his the Illinois Capital Trial Bar. In a previous ca - like the pool hall had been broken into. body was sent back to Hannibal. He was, reer, John was an Information Analyst for the During this second trial, the State ended for a time, buried in an unmarked grave Department of Defense.
9 Verne O. Williams, “Convicts Take Pen in Hand”, Miami News, May 5, 1963. 10 During the first trial, Gideon had asked Cook if he had ever been convicted of a felony and Cook answered “no, sir, never have.” Transcript of State of Florida vs. Clarence Earl Gideon , August 5, 1964 (Second Trial), 36-43. Further testimony by the witness revealed that he had pled guilty in juvenile Court. 11 Id. at 104-129. The highlight of Gideon’s testimony may have been his explanation that the money in his pockets was the result of gambling and that he in fact had run a card game for the pool hall’s owner. Id. at 120. He also had some fun with the prosecutor when he said, “…shortly after that, then, I was arrested and charged with this breaking and entering at the Bay Harbor Pool Room – I don’t have to tell you, I’m sure, Mr. Harris, where I have been since that time, since you were the one who put me where I’ve been all this time.” Id. at 122. 12 Simpson. 13 “Gideon Back in News; He Got Held Up”, Daytona Beach Morning Journal, November 11, 1966. March 2013 The Docket 11 Devil’s Advocate evil’s Advocate. Think upon that for JUSTICE for our underprivileged and erased by the look of relief on a husband’s for a few moments; let it sink in. wrongly accused clients. face, the sincere “thank you” a client may DDevil’s Advocate. Isn’t that what whisper on her way out of court, the occa - most people think a public defender is? That As time passes, you realize that there are sional happy tears on a mother’s cheek as we spend our hours plotting ways to save laws, there are facts, and there are punish - she thanks you for saving her child, the the devil, criminals, our clients? That we ments, and that our role is to navigate the proud former client who, years later, stops wile away the hours using our black magic world in between. Justice certainly can by to show you a high school diploma and to find legal mean throwing out a confession or win - crime-free life. These are the fleeting mo - loopholes and ning a big jury trial. But justice can also ments when it all makes sense, when all the cracks in the mean working for months with psycholo - tears and struggles you’ve faced as a PD be - system to gists and doctors to show that an 18 year come worthwhile. loose these old boy is so flawed and emotionally dam - evildoers back aged that he doesn’t deserve 20 years in So many of our clients are caught in a sad upon our in - prison, but only 10 for his crimes. You see, and unending cycle of poverty and crime. nocent soci - our job is to protect our clients’ rights-and As Public Defenders, we are not just ety? to protect our CLIENTS— even when they lawyers: We are social workers, helping do not realize they need protection! clients find warm beds, food pantries or Devil’s Advo - treatment facilities. We are jugglers, work - By cate? No, Pub - The path to justice for our clients is not easy ing to strike a balance between our clients’ lic Defender! - for us or for them! Each of us can tell you rights, their needs and their means. We are Cynthia of sleepless nights spent worrying about a counselors, soothing frightened teenagers, Pruim Haran I’ve been hon - client; hours spent searching for some way confused parents and outraged spouses. ored to be a to save a life; countless conversations try - We work from a combination of legal PUBLIC DEFENDER here in Lake County ing to be sure a client understands the knowledge, courtroom skill, societal for nearly nine years. NINE YEARS! It’s odds. The Public Defenders of Lake County awareness and human compassion. hard for me to believe! It’s hard for my are filled with compassion, with fight, with friends and family to believe. You see, I fortitude, and dedication! I am in awe of my We are advocates - just not for the devil! We never saw myself as a PUBLIC DEFENDER! coworkers and the level of excellent repre - are Public Defenders. I always played the role of prosecutor; al - sentation we provide for so many! I am ways saw myself fighting for justice, and, honored to be part of a group that works Cynthia Pruim Haran became an Assistant in the end, proudly, this is exactly what I do! tirelessly for the good of so many people Public Defender in July 2004. Prior to that, As Eleanor Roosevelt so aptly said, “Justice who have nobody else to fight for them. she was an attorney with the law firm of cannot be for one side alone, but must be Klafter and Burke in Chicago, specializing in for both.” There are also moments of sadness, frus - Real Estate Tax Appeals. Cynthia is a gradu - tration and anger. We get very little respect ate of Chicago Kent Law School where she re - As a new public defender, I can remember from our clients. We’ve all heard “I want a ceived multiple academic awards for Trial charging into court thinking I could save real lawyer!!,” even when we’ve fought our Advocacy. Cynthia is a former board member everyone. So many of us thought that we hardest. You see, even for the poorest of the of the Association of Women Attorneys of would spend our days proving our clients’ poor, it is easier to trust someone you pay Lake County. She is a Principal Assistant innocence through endless suppression than someone who is helping you for free! with the Lake County Public Defender’s Of - hearings and jury trials! We would FIGHT But those moments of frustration can be fice in the Felony Trial Division.
30 Years Experience REAL TIME • VIDEOGRAPHER • E-TRAN
%& #" ! $ #" # ! ! (847) 244-4117 (312) 624-8472 %%%$ " ! $ 12 The Docket March 2013 March 2013 The Docket 13 I Want a Real Lawyer Indigent Criminal Defense in the Era of “Civil” Proceedings in the Criminal Justice System
he scene in court is an all-too-com - well-trained workforce. Ever since the “right to be heard,” 3 that right is rarely, if mon one. After hearing that the pub - United States Supreme Court’s landmark ever, properly defended by the pro se litigant. Tlic defender has been appointed to decision in Gideon v. Wainwright , in which Opposed by an experienced prosecutor, the represent him, a devastated criminal defen - the Court reasoned that “in our adversary pro se defendant must adhere to filing dead - dant cries out, “but judge, I want a real system of criminal justice, any person lines, draft pleadings, object to improper no - lawyer!” Those words, certain to make the hailed into court, who is too poor to hire a tice, defend against probable cause blood of even lawyer, cannot be assured a fair trial unless determinations, and conduct hearings ac - the most sea - counsel is provided for him,” 1 the right to cording to the rules of evidence. Even the soned public diligent and competent legal representation most sophisticated pro se litigant is likely to defender sim - for the indigent has become an abiding and commit errors that could compromise his mer, are in - fundamental principle of the American otherwise meritorious defense. As Justice variably met criminal justice system. The growth of pub - Sutherland in Powell v. Alabama recognized, with a stern lic defender offices across the country has “[t]he right to be heard would be, in many rebuke from helped to ensure that Gideon’s “noble cases, of little avail if it did not comprehend the judge who ideal” 2 — that the amount of justice you re - the right to be heard by counsel.” 4 explains that ceive does not depend on the amount of jus - public defend - tice you can afford — has become a reality. Paradoxically, since the 1980’s, the By ers are real at - Supreme Court has actually cited Gideon to torneys and Despite the progress that has been made, deny requests for appointed attorneys. The Jeffrey even quite courts across Illinois and elsewhere unwit - Court has recast Gideon as a limitation on Facklam good ones at tingly perpetuate the myth of the inferior the right to counsel, only applicable in those that. public defender in an imbalanced system of situations where the defendant’s physical justice. It often happens without much fan - liberty is at stake. 5 But labeling some com - While the fare. At a pretrial hearing in a drug case, an ponents of a criminal case “civil” and oth - stereotype of Assistant State’s Attorney quietly asks the ers “criminal” is a trivial distinction for the the incompe - Judge to sign a default forfeiture judgment, criminal defendant whose property has tent and over - while a criminal defendant and his public been taken by the government. Asset forfei - worked public defender look on helplessly, the public de - tures fall especially hard upon the indigent defender un - fender having previously been cautioned by who, by definition, have few, if any assets to doubtedly con - the judge in open court that she could not begin with. And yet, when the defendant tinues to linger represent her client in that “civil” matter. hears that his public defender can handle in the darker The public defender is left to explain to her only some aspects of the case that brought By corners of the confused or angry client why it is that his him into court, he can hardly be blamed if American psy - property now belongs to the government he feels as though the system has dealt him John che and even and why she did nothing to prevent it. The a weak hand. In short, he wants and needs persists as an defendant, hailed into court against his will a rea l lawyer, not some well-intentioned but Radosevich unfortunate on criminal charges, must negotiate the so- ineffective ersatz. truth in some regions in the United States, called “civil” aspects of his criminal case many public defender offices, especially without the benefit of an attorney’s advice Lassiter , Imprisonment, and the those in well-financed jurisdictions such as and counsel. Civil/Criminal Distinction Lake County, have been able to attract the When courts have denied requests for court best and brightest attorneys to their ranks While asset forfeitures are said to satisfy due appointed counsel on the basis that certain to establish a professional, committed and process because they afford the defendant a aspects of criminal cases are “civil” in na -
1 Gideon v. Wainwright , 372 U.S. 335, 344 (1963). 2 Id. at 344. 3 See, e.g. People v. 1998 Ford Explorer , 399 Ill. App. 3d 99, 101 (2d. Dist 2010) (Concluding that forfeiture proceedings to seize the vehicles of claimants who had driven their vehicles while their driver’s license was suspended or revoked comported with due process because it provided for an opportunity to be heard at a hearing within a reasonable time). 4 Powell v. Alabama , 287 U.S. 45, 68 (1932). 5 See Lassiter v. Department of Social Services of Durham County, N. C. , 452 U.S. 18, 25 (1981) (“The pre-eminent generalization that emerges from this Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.”). 14 The Docket March 2013
ture, they have done so almost invariably by Gideon’s right to counsel to criminal cases presumption has inspired courts to deny re - resorting to the rationale that the constitu - and certain civil matters involving the loss quests for appointed counsel on the tional right to appointed counsel is limited of liberty, like civil commitments. grounds that a particular proceeding is to criminal proceedings which could result “civil” as opposed to criminal, even when in actual imprisonment. 6 The rule springs However, Lassiter went even further and the proceeding is codified in the criminal from the 1981 United States Supreme found that in proceedings that cannot re - code and the State’s interests are repre - Court decision in Lassiter v. Department of sult in imprisonment, there is actually a sented by an Assistant State’s Attorney. 20 Social Services Of Durham County ,7 a case presumption against the appointment of Lassiter’s lasting legacy has been to restrict proving the old adage that bad facts make counsel. 11 That presumption can only be the right to counsel to criminal matters bad law. In 1975, a North Carolina family overcome if due process so requires, after where imprisonment is a possibility. court declared Abby Gail Lassiter’s infant balancing “the private interests at stake, the son to be a neglected child and transferred government’s interest, and the risk that the Revisiting Lassiter and the Due him to the custody of respondent Durham procedures used will lead to erroneous de - Process Rational for Appointed Coun - County Department of Social Services. A cisions.” 12 Although the Court noted that sel year later, Lassiter was convicted on an un - the “the parent’s interest is an extremely Lassiter , a 5-4 decision, is not the final word related murder charge, and sentenced to important one” 13 and the State “has a rela - on the right to counsel in so-called “civil” serve up to 40 years in prison. After serving tively weak pecuniary interest,” 14 the Court matters, nor is it immune from criticism. It two years of that sentence, during which ruled that Ms. Lassiter failed to satisfy the unfairly characterized Gideon as a case in time Lassiter had no contact with her child, third prong of the balancing test because which the right to counsel depended on the the Durham County Department of Social “the weight of the evidence …was suffi - possibility of imprisonment. It is thus more Services filed a petition to terminate her ciently great that the presence of counsel than a little ironic that Lassiter cited three parental rights. The Durham county family for Ms. Lassiter could not have made a de - cases that expanded the right to counsel — court granted the County’s petition after a terminative difference.” 15 Therefore, the Gideon (which extended the federal consti - hearing in which Lassiter’s request for the Court affirmed the Durham County court’s tution’s due process right to counsel to the representation by appointed counsel was denial of her request for appointed counsel, States through the Fourteenth Amend - denied. On appeal before the Supreme noting that “the incapacity of the uncoun - ment), Argersinger v. Hamlin (extending the Court, Lassiter challenged the denial of her seled parent could be, but would not always right to counsel to misdemeanors), and In request for court appointed counsel on due be, great enough to make the risk on an er - re Gault (which extended the right to coun - process grounds. roneous deprivation of the parent’s rights sel to juvenile proceedings) — in support of insupportably high.” 16 its own proposition limiting that same right. Concluding that the termination hearing satisfied due process because Ms. Lassiter Although Lassiter encouraged a case-by- While the facts of Gideon unquestionably had no right to an attorney, the court de - case analysis of the requirements of due dealt with the right to counsel in a criminal termined that “an indigent litigant has a process, it has repeatedly been utilized in al - case where the accused faced imprison - right to appointed counsel only when ... he most a bright-line fashion to deny court-ap - ment, there is nothing in the language of may be deprived of his physical liberty.” 8 pointed counsel. Indeed, because civil the opinion to suggest that the Supreme Noting that “[a]s a litigant’s interest in per - proceedings rarely result in the deprivation Court intended to limit the constitutional sonal liberty diminishes, so does his right to of liberty, courts have used Lassiter’s pre - right to counsel to those cases where im - appointed counsel,” 9 the Court reasoned sumption to deny requests for appointed prisonment is either a possibility or actually that the right to counsel, as set forth in counsel in a variety of cases, including imposed. Without once mentioning the Gideon and its progeny, was rather narrow: those involving orders of protection, 17 words “jail,” “imprisonment,” or “restraint there is a “presumption that an indigent lit - statutory summary suspension hearings, 18 on personal liberty,” Justice Black, writing igant has a right to appointed counsel only and suits by prisoners challenging the con - the unanimous opinion, stated that “[f]rom when, if he loses, he may be deprived of his ditions of imprisonment, 19 to name only a the very beginning, our state and national physical liberty.” 10 This ruling limited few. Even if not specifically cited, Lassiter’s constitutions and laws have laid great em -
6 See. e.g. People v. Golden , 117 Ill. App. 3d 150, 157 (5th Dist. 1983). 7 Lassiter , 452 U.S. 18 (1981). 8 Lassiter , 452 U.S. at 26-27. 9 Id. at 26. 10 Id. at 26-27. 11 Id. , 452 U.S. at 31. 12 Lassiter , at 27. 13 Id. at 31. 14 Id. 15 Id. , at 32-33. 16 Id. at 31. 17 People ex rel. Williams v. Rhodes , 185 Ill. App. 3d 114, 116-18 (4th Dist. 1989). 18 Koss v. Slater , 116 Ill. 2d 389, 396-97 (1987). 19 Archuleta v. Goldman , 761 P.2d 425, 431 (N.M. 1987). 20 See, e.g., Collie v. State , 710 So.2d 1000, 1013 (Fla. App. 1998) (Holding, with - out citing Lassiter , that designating a defendant a sexual predator at a hearing in which he was not represented by an attorney did not deprive him of life, lib - erty, or property, so as to violate his due process rights, because the proceedings were not criminal in nature). March 2013 The Docket 15 phasis on procedural and substantive safe - code. The Court in Lassiter strongly sug - counsel. Therefore, due process, even under guards designed to assure fair trials before gested that due process could require the Lassiter , requires the appointment of coun - impartial tribunals in which every defen - appointment of counsel even in non-jail - sel in asset forfeiture proceedings. dant stands equal before the law.” 21 He then able civil matters, 24 provided the balancing quoted Justice Sutherland’s discussion in factors (the private interest at stake, the gov - Statutory Remedies Powell v. Alabama of the challenges and dis - ernment’s interest, and the risk that the Ensuring fairness in the criminal justice sys - advantages faced by pro se criminal liti - procedures used will lead to erroneous de - tem by providing court-appointed counsel gants: cisions) so warranted. In the case of asset in asset forfeitures can also be achieved forfeitures, they most certainly do. through legislation or administrative or - The right to be heard would be, in ders, even in the absence of a constitutional many cases, of little avail if it did not An indigent criminal defendant, presumed right. The appointment of counsel as a mat - comprehend the right to be heard by innocent of any crime, has an extraordi - ter of statutory right, even in matters that counsel. Even the intelligent and edu - narily high interest in maintaining posses - cannot result in imprisonment, is not novel. cated layman has small and sometimes sion of what few assets he may have. In The Juvenile Court Act allows for the ap - no skill in the science of law. If charged comparison, the State’s interest in seizing pointment of a public defender for indigent with crime, he is incapable, generally, those items is weak. While seized assets and parents in abuse and neglect proceedings as of determining for himself whether the cash can undoubtedly inure to the benefit well as in matters concerning the termina - indictment is good or bad. He is unfa - of police departments, the Illinois legisla - tion of parental rights. 27 The Mental Health miliar with the rules of evidence. Left ture has cautioned that “forfeiture is not in - and Developmental Disabilities Code pro - without the aid of counsel he may be tended to be an alternative means of vides for the appointment of representation put on trial without a proper charge, funding the administration of criminal jus - in both involuntary commitment proceed - and convicted upon incompetent evi - tice.” 25 Illinois courts have criticized forfei - ings and those involving the forced admin - dence, or evidence irrelevant to the ture as a “disfavored” means of engaging in istration of medication. 28 Perhaps most issue or otherwise inadmissible. He deterrence of crime, and held that “statutes significantly, federal law now provides for a lacks both the skill and knowledge ad - authorizing them must be construed strictly statutory right to counsel in asset forfeiture equately to prepare his defense, even in a manner as favorable to the person proceedings. The federal asset forfeiture though he have a perfect one. He re - whose property is seized as is consistent laws upon which Illinois’ forfeiture law quires the guiding hand of counsel at with fair principles of statutory interpreta - were based were amended in 2000. The fed - every step in the proceedings against tion.” 26 This suggests that the interest in the eral Civil Asset Forfeiture Reform Act him. 22 correct outcome is high. (CAFRA) now contains an express provi - sion for the appointment of counsel in fed - Justice Sutherland’s “sound wisdom,” 23 as An attorney could make a significant dif - eral asset forfeiture matters when an Justice Black termed it in Gideon , makes the ference in assuring the correct outcome of attorney has already been appointed to rep - case for the assistance of counsel in a crim - asset forfeiture cases. The risk of an erro - resent the same defendant in a “related inal case without alluding to the depriva - neous decision skyrockets when pro se liti - criminal case.” 29 Unlike Illinois, the federal tion of liberty. The fact that Clarence Gideon gants are left alone to navigate the courts are thus providing criminal defen - faced the prospect of imprisonment may complicated intricacies of asset forfeiture dants with “real attorneys” in federal asset have contributed to the Court’s decision to law. The likelihood that a pro se litigant will forfeiture cases. grant certiorari and hear his case, but it miss a filing deadline and default on an oth - played no role in the reasoning of the deci - erwise meritorious defense is particularly These reforms were born out of a concern that sion. high given that those proceedings are the asset forfeiture laws were being abused by marked by strict deadlines that are scrupu - the government, often to the detriment of pro Even if it is rooted in a mischaracterization lously enforced. The risk of proper defenses se litigants who lacked the knowledge or fi - of Gideon, Lassiter’s presumption does not being waived, and improper ex parte judg - nancial means, especially in the wake of the require the denial of court-appointed coun - ments being entered, increases exponen - forfeiture, to challenge the seizures in court. 30 sel in all so-called “civil” matters, especially tially when an indigent, and often As the Second Circuit stated before the CAFRA not for those found in the Illinois criminal incarcerated, defendant is not afforded reforms were enacted,
21 Gideon , 372 U.S. at 344. 22 Id. . at 344, quoting Powell v. Alabama , 287 U.S. 45, 68-69 (1932). 23 Id. 24 Lassiter , 452 U.S. at 31 (“If, in a given case, the parent’s interests were at their strongest, the State’s interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel.”). 25 725 ILCS 150/2. 26 People v. U.S. Currency $3,108 , 219 Ill. App. 3d 441, 446 (1st Dist. 1991), citing People v. $27,440 , 164 Ill. App. 3d 44, 48 (3rd Dist. 1987). 27 705 ILCS 405/1-5. 28 In re Barbara H. , 183 Ill.2d 482, 493-94 (1998), making 405 ILCS 5/3-805 applicable to proceedings involving the involuntary administration of psychotropic medication. 29 18 USC 983(b)(1)(A). 30 H.R. REP. NO. 106-192, at 14 (1999). See, e.g., People v. Olmstead , 32 Ill.2d 306, 314 (1965) (Holding, without citing Gideon , that “upon the filing of defendant’s application for discharge under section 9 [of the Sexually Dangerous Persons Act], the trial court should have appointed counsel to represent this indigent defen - dant and should have impaneled a jury pursuant to defendant’s jury demand, and held a hearing to determine if the defendant had recovered from the disability responsible for his original commitment” because “[t]o hold otherwise would be to permit the State to forever hold in confinement a defendant found to be sexu - ally dangerous at the sole discretion of the officers of the State.”) 16 The Docket March 2013
[w]e continue to be enormously trou - gent by seizure in appropriate circum - under the law, then we must ensure that bled by the government’s increasing and stances,” even in the absence of a constitu - ours does not favor the wealthy while un - virtually unchecked use of the civil for - tional right to counsel. 32 Without the fairly burdening the indigent. At its core, feiture statutes and the disregard for due watchful eye of opposing counsel, there is this is exactly the type of injustice Gideon process that is buried in those statutes. no reason to believe that asset forfeitures in was trying to prevent. It is time to provide The district courts, in order to preserve Illinois courts will provide any greater de - real lawyers, empowered to provide a global some modicum of due process to crimi - gree of due process. Criminal defendants in defense, for the indigent accused. nal defendants (and civil forfeiture Illinois state court should not be subject to claimants) should be vigilant in approv - lesser protections than their counterparts Jeffrey Facklam became an Assistant Public De - ing seizures ex parte only upon a show - in federal court. fender in December 2006. He interned with the ing of the most extraordinary or exigent Office before joining as a full-time Assistant. He Conclusion circumstances, and whenever possible is currently a trial attorney in the Public De - The wealthy will always be able to afford the fender’s Felony Division. Jeff is a 2003 Gradu - should favor less drastic measures, such best legal representation money can buy. As ate of Indiana University with a Bachelor of as occupancy agreements, bonds, re - a result, they can ensure that the govern - Science in Marketing and a 2006 graduate of ceiverships, lis pendens, or other means ment will scrupulously honor and preserve DePaul University College of Law. In law school, for preserving the status quo ante their rights and privileges. But the indigent, Jeff also served as a middle school teacher in seizure until the criminality underlying against whom criminal actions are dispro - Grayslake, IL. the claimed forfeiture can be established portionately brought, should not be pre - in the context of a proper criminal pro - vented from attaining the same degree of John Radosevich is a 1997 graduate of the Uni - ceeding with its attendant constitu - justice merely because they are indigent. versity of Iowa with a B.A. in philosophy, and a tional protections to the accused. 31 2006 graduate of the George Washington Uni - It is fundamentally unfair not to extend the versity Law School. He began his practice with Similarly, the House Judiciary Committee representation of the Public Defender’s Of - Grund & Leavitt, P.C. and joined the Public De - recognized that civil forfeiture proceedings fice to asset forfeitures and other “civil” fender’s Office in 2007. He is assigned to the are frequently “so punitive in nature that matters which are intimately intertwined Misdemeanor & Traffic Division and addition - appointed counsel should be made available with a criminal case. If the goal of any ally handles complex quasi-civil mental health for those who are indigent, or made indi - criminal justice system is equal justice and sex offense cases.
31 U.S. v. All Assets of Statewide Auto Parts, Inc. , 971 F.2d 896, 905 (2d Cir. 1992). 32 H.R.Rep. No. 106-192, at 14 (quoting the joint statement of E.E.(Bo) Edwards III, David Smith, and Richard Troberman) (footnotes omitted).. March 2013 The Docket 17 18 The Docket March 2013 March 2013 The Docket 19 View from the New Guy
have been an Assistant Public De - Gideon’s Trumpet, a 1980 television that public defenders have to manage a fender in Lake County for six weeks movie based on a book written about the large caseload. I thought that part of a Inow. I came to the Office after two case. As I watched the movie I was drawn public defense career would be draining, years of private practice. I graduated from to a career as a trial lawyer due to the but would also present a wonderful chal - Chicago-Kent College of Law in May David and Goliath aspect of Gideon’s lenge for me. Most importantly, I saw a job 2010. story. I wanted to help the Gideons of the as a public defender as a chance for me to world. I saw Clarence Earl Gideon as a help some of those Gideons. I wanted to I have always man whom much of the world ignored or lived in a help the downtrodden and the indigent. wished would go away. To me Gideon had world where When my friends and family ask me how made some bad decisions while he was public defend - I can defend “those people,” I smile when young but had cleaned up his act. I ers were avail - I answer. I love the question. I tell them I thought it was patently unfair that he was able to the defend my clients because I understand indigent. As a charged with burglary and then denied the right to have a lawyer appointed to that much of the world ignores them and kid, I had as - I want them to know I hear them and I see sumed public represent him when he could not afford them. And, I am willing to stand before defense had one. He was forced to represent himself their accusers and advocate on their be - been an inte - and of course he lost after he was forced By gral part of to try his case against the state’s attorney half. So far, the experience has been posi - the American who was actually trained in the law and tively thrilling. Damien experience better-versed than Gideon. Watching Damien Clark became an Assistant Public De - Clark since the be - Gideon’s appointed attorney cross-exam - ginning. I was ine the prosecution’s key witness during fender in December 2012. Prior to joining stunned to learn that for the most part, Gideon’s second trial excited me. Even the office he worked as a private attorney with the various offices of public defenders that more thrilling were the lawyer’s opening the Law Office of Standish E. Willis and Er - I had always known were first created in statement and closing argument in the ickson & Oppenheimer, Ltd., focused on crim - response to Gideon v. Wainwright back in case. I saw the story as Gideon and his inal defense and Section 1983 police brutality 1963. The idea that everyone is entitled to lawyer taking on the world. I liked that as - cases. A 2010 graduate of Chicago-Kent Col - representation by an attorney during trial, pect of the story and I wanted to be part lege of Law. A Regional Champion and Na - even those who cannot afford one, seems of it. tional Semifinalist on Kent’s trial advocacy wonderfully American, entirely self-evi - team in the 2010 National Trial Competition A few years later, during law school, I was dent, and fundamental. I wondered how and a National Semifinalist in the 2009 and why it could have taken so long to se - again intrigued by public defense because Tournament of Champions. A 1998 gradu - cure such an obvious political right. Of of the opportunity I would have to im - ate of The University of Chicago with a bach - course, I found myself asking that ques - prove my trial skills. I had heard that pub - tion many, many times as I went further lic defenders and state’s attorneys try elor’s degree in Political Science. Before law in my American history lessons. more cases than private trial lawyers and school but after college he worked for Harpo I figured that the best way to cut my teeth Productions on “The Oprah Winfrey Show” I was introduced to Gideon v. Wainwright as a trial lawyer would be to work in a and the Chicago Department of Public in a high school class before watching public defender’s office. I had also heard Health. 20 The Docket March 2013 Defending the Innocent/Advising an Innocent Client to Plea ow can you defend someone if you 402 conferences, and meet with the prosecutors in people hear that a defendant has admitted to the know they’re guilty?” This is a ques - an effort to resolve our cases in our client’s favor. crime, they automatically assume he is guilty. But “H tion that most Public Defenders hear Sometimes, our hard work pays off and the case is we know from hard experience that false confes - many times over the course of their careers. We dismissed or our client is acquitted at trial. But this sions do happen. No one wants to believe a person hear it from court personnel, victims, family mem - is not always the outcome. Often, our hard work would admit to something they did not do. This is es - bers and our friends. What we don’t usually get only gets us a better offer for our client. Unfortu - pecially true if the crime is a serious one. Yet, over asked is, “What do you do when you get a client nately for our clients, a better offer still means the 25% of all people exonerated by DNA evidence orig - who is truly in - restrictions of probation or a prison sentence. inally confessed 1. As defense attorneys we know nocent? How do that successfully challenging a confession is a rarity. you defend a per - The “stakes” in this process, which are normally son who is inno - high, seem exponentially higher when the client we These assumptions about charging the right per - cent and is are fighting for is demonstrably innocent. Defense son, compounded by an honest desire to believe all charged with a counsel will always ensure that the client under - confessions are true, is at the core of a defendant’s horrific stands the risks his case presents. Sometimes, this belief that the cards are stacked against him. This crime?” Maybe leads to a decision by a client to avoid great risk by belief will all too often lead our clients accept a plea we do not hear accepting an offer despite their protestations of in - of convenience that is not necessarily based on ac - this question as nocence. Most defenders (both public and private) tual guilt or innocence. will eventually find themselves representing a client often because of Some may say it was your client’s decision to plead who, despite our belief in his innocence, chooses to a general as - guilty so there is nothing you could do. But given By plead guilty, to forfeit some portion of his freedom, sumption that the risks, did the defendant really have a choice in rather than to proceed and face a far greater loss at people charged the first place? As much as we hope the judge or jury Sharmila trial. I have faced this dilemma in my career and try with a crime makes the right decision, our clients will often ac - never to forget one particular innocent man who must be guilty of cept a plea and a known sentence rather than risk Manak made the decision to plead guilty and accept a cer - that crime. But losing at trial and receiving an unknown, poten - tain but short prison sentence rather than face the those of us who work in the criminal courts know tially harsher sentence. Drawing on their previous unknown of a trial and the potential of a much that this “where there is smoke, there is fire” rea - (often negative) experiences with the criminal jus - longer prison sentence. It is one of the most chal - soning is far from the absolute truth. While many tice system, our clients also may choose to plead lenging pleas I have ever been a part of. defendants did indeed commit the charged offenses, guilty because they simply do not trust that system it is also true that other defendants are innocent. One of the most difficult tasks any Public Defender to produce the right outcome. One of the most difficult challenges any defense at - will face is walking into the Lake County Jail and I believe that one of the best protections against torney can face is to defend the freedom of a person telling our client: “I believe that you are innocent wrongful convictions and pleas of convenience is a who is innocent of the accused crime. but if you go to trial anything can happen and you strong public defender system. Public Defenders could be found guilty.” Like any defense attorney, Defending the indigent accused is a difficult and exist because our society has recognized the critical we give our clients the best legal advice we can, and challenging job. Like any criminal attorney, I face importance of the idea that the amount of justice a sometimes the best legal advice is advising your the constant danger of becoming lost in the “rou - citizen receives is never related to his ability to pay. client to strongly consider accepting the State’s offer tine” of everyday practice, a risk that we could lose When Public Defenders are encouraged to zeal - and plead guilty. It is extremely difficult to tell your sight of our client’s humanity as we focus on “legal” ously defend their clients, those clients can begin to client to take a deal (regardless of his protestations issues. I combat this complacency by constantly re - trust that they will be treated fairly. And when every of innocence) simply because not taking the deal minding myself that my indigent clients may have defendant has reason to trust the fairness of the could have devastating consequences. It is a tough suffered poverty, violence and disenfranchisement criminal justice system, then none should feel that pill to swallow both mentally and emotionally when as part of their daily lives that is vastly different from pleading guilty to a crime they did not commit is the my own experience. Being a Public Defender, rep - such a cold arithmetic leads to your client losing his only way to avoid more dire consequences. The resenting my clients with humanity and compas - freedom, the thing you thought you were so vigor - most precious thing in life is freedom and before we sion as well as with legal skill and acumen, is both ously defending. take someone’s away, we had better be sure that it is mentally and emotionally taxing. The pressure “If he is innocent then how could he lose at trial?” not for a conviction, not for a victory, but solely in mounts exponentially when the task is to defend a This is another question that many defense attor - service of justice. truly innocent person. neys have heard and we all wish it was that sim - Sharmila Manak became an Assistant Public Defender in Freedom is the most precious thing that life has to ple. We all know the unfortunate truth that no 2003 after a job as Traffic Prosecutor for the City of Chicago. offer and as defense attorneys we fight for this free - matter how great a case we think we have, the out - Shar graduated from the John Marshall Law School in 2002 dom every day. Often, the only thing that stands in come is never guaranteed. Many people believe that and from Simon Fraiser University in 1999, with a degree the way of our clients losing their freedom is us. if the defendant has been arrested then he is the per - in Criminology & Communication and a Certificate in Lib - son who committed the crime. This is the first of When defending any client’s freedom we always do eral Arts. She has served as a Student Intern Representative many assumptions that often lead to an uphill, los - everything we can. We meet with our clients for for Prisoners Legal Services - Canada, and was the President ing battle. countless hours, conduct investigations, file pre-trial of John Marshall’s Asian Pacific Student Law Society. She is motions, conduct pre-trial hearings, participate in “He must have done it, he confessed!” Once most a Principal Assistant in the Felony Trial Division. 1 Innocence Project Website. False Confessions and Recording of Custodial Interrogations. http://www.innocenceproject.org/Content/False_Confessions__Record - ing_Of_Custodial_Interrogations.php March 2013 The Docket 21 The Rise of the Defender Movement: a Recollection
he modern public defender is a Law Enforcement Assistance Administra - To enhance defender expertise, the client-centered constitutional tion (LEAA), a branch of the United States NLADA developed (in conjunction with Tlawyer, but that was not always the Department of Justice. At first, legislation the ABA and the National Association of case. Prior to the 1963 decision in Gideon did not provide for LEAA funds to be given Criminal Defense Lawyers (NACDL ) a na - v. Wainwright , less than 5% of Americans to public defender offices, but in 1973 in tional defender college and training pro - were served by a public defender or court my role as National Director of Defender gram which conducted criminal defense appointed Services, I was called to testify before Con - programs in the states as well as a two- counsel. In gress to call for NLADA funding. There - week summer program. To this day, the the early after, Congress amended the legislation to Defender College at Macon, Georgia re - 1900’s, public extend LEAA funding to public defender mains an important career milestone for defenders offices as well. With the Ford Foundation many defenders. were financed money, NLADA hired Major General (Ret.) out of charita - Charles Decker, former U.S. Army Judge Finally, the NLADA drafted standards for ble donations Advocate General, to develop 74 pilot de - defender offices which related to prompt made by busi - fender programs throughout America. interviews with defendants, thorough in - nessmen. The These programs included court appointed vestigation of all contested cases, inde - By general view assigned counsel systems, full and part- pendence of lawyers from political or was that the time defender offices, bar association ad - judicial control, etc. With the assistance Marshall public de - ministered programs, etc. of the Justice Department, the NLADA Hartman fender was sponsored a colloquium involving over there to assist With the LEAA funding, the NLADA ne - 300 defenders to determine standards for the court in processing guilty pleas (see gotiated several additional grants trans - the handling of criminal defendants. the charter for the Cook County Public forming itself into a national professional NLADA also awarded excellent offices Defender Office in 1929). Where the de - agency providing services to communities with national recognition. In 1987 I be - fender assisted the accused in getting a wanting to establish defender offices and came Chief Defender for the Lake County “not guilty” of a robbery or burglary of a to existing defender offices. The NLADA Public Defender’s Office. I am proud that business, the businessman who had paid expanded its Defender Division to conduct in 1991, the Lake County Public De - his salary was outraged. In 1963 this all a national defender survey to determine fender’s Office received the biennial Clara changed. For the first time the Supreme for the first time which communities had Shortbridge Foltz Award for outstanding Court held that a citizen had been de - public defenders, and which communities achievement in the provision of indigent prived of his constitutional rights when were seeking assistance in establishing defense services from the NLADA (this the Florida judge refused to appoint coun - and supporting public defenders. With same award had been presented to the Of - sel to defend him in a felony jury trial. LEAA funds, the NLADA established the fice of the Appellate Defender in 1986 – Today 85% of American jurisdictions National Center for Defender Manage - the only two agencies in Illinois ever to be have some form of defender system for ment (NCDM) to provide assistance to any so recognized). felony, misdemeanor and juvenile cases. jurisdiction desiring to set up an office. The NCDM also provided technical assis - The Illinois Appellate Experience Characteristics of a Modern tance to any system which wanted to de - In Illinois, trial defenders are appointed by Defender System velop computerized information and the counties, but the appellate program is Two important events helped shape the established a system to track their cases handled by a state agency, the Office of the future defender movement after the and their disposition of cases. The NLADA State Appellate Defender (OSAD). The Gideon decision. The first was a grant of also hired experts to evaluate existing de - head of that office is appointed by the Illi - $6,000,000 by the Ford Foundation to fender offices. With this program, NLADA nois Supreme Court. It is interesting to the National Legal Aid and Defender As - project staff would (upon request) evalu - trace the origins of this appellate office, sociation (NLADA) for the purpose of set - ate an existing defender office and deter - because it was initiated by County trial ting up defender systems across the mine how well the lawyers and other staff court public defenders and the Illinois country. The second event was the cre - members were performing and make sug - Public Defender Association (incorporated ation by the federal government of the gestions for improvement. in 1969 by Cook County Public Defender 22 The Docket March 2013
Gerald Getty, myself and Justice Morton ture that if they would make the project a crowding, alcohol and drug rehabilitation Zwick from the First District Appellate permanent state agency, federal funds projects, employment for ex-prisoners, Court). would continue to flow for at least another and sensitivity to juvenile problems. The year for half of the Project’s annual cost. public defender’s office is a vital part of In 1970, the Illinois Public Defender As - If not, all federal funding would cease. The any jurisdiction’s criminal justice com - sociation applied for a grant from the legislature funded the project, and it be - munity along with the courts, the police LEAA for $2.4 million to establish the Illi - came the Illinois State Appellate Defender and prosecution. The defender office’s nois Defender Project. The grant included Agency with offices in every appellate dis - input will hopefully help improve the ef - money for appeals, training seminars, and trict except the First District. Later the fectiveness of the criminal justice system a trial defender office in Cairo, Illinois. First District agreed to allow the State Ap - in Lake County as well as across the coun - After three years, full federal funding was pellate Defender to do its appeals as well, try. ended. The Association was notified that thereby relieving the Cook County Public unless we could get the Illinois legislature Defender Office of that responsibility. Marshall Hartman served as Lake County’s Public Defender from 1987 to 1991. He re - to make the project into a permanent state Ted Gottfried was appointed State Appel - ceived both his B.A. (1954) and his J.D. agency, we would lose all funding. The de - (1957) from the Unviersity of Chicago. He fenders of Illinois rallied and led a cam - late Defender, and the program assumed all existing appeals from the district offices also holds a Bachelor of Hebrew Letters de - paign which resulted in a bill before the gree from Spertus College of Judaica. Mr. of the Illinois Defender Project, and has state legislature. The governor, Richard Hartman has served the indigent and disad - been a permanent part of State govern - Ogilvie, backed the bill. By then, I had vantaged through the public defender move - ment to this day. been elected President of the Illinois Pub - ment for more than four decades. He has served as national director of Defender Serv - lic Defender Association and in that role, Conclusion testified on behalf of the Illinois Defender ices for the National Legal Aid and Defender The NLADA has consistently urged public Association, and from 1991 to 2003, he led Project. Theodore Gottfried, then head of defenders to participate in civic offices the Capital Litigation Division of the Illinois the Project, and Shelvin Singer, Chairman with other members of the criminal jus - State Appellate Defender Office. He also has of the Project’s Board, met repeatedly tice system. Our active participation en - evaluated and provided technical assistance to with the Governor’s staff and other legis - hances the defender’s visibility and also numerous public defender offices to raise their lators. In my testimony, I told the legisla - allows its input in areas such as jail over - standards of representation for the poor. SAVE THE DATE 15th Annual Civil Trial & Appeals Committee Seminar & Golf/Tennis Outing
3.25 CLE hours (1 hr of Professionalism Credit**(pending))
Thursday May 23, 2013 Biltmore Country Club March 2013 The Docket 23 Have You Hugged a Sex Offender Today? Well, You Should and Here’s Why
o one went to law school hoping to this designation. Further, the reality that for a lifetime, this single distinguishing defend sex cases. No one. Or at these registration laws are becoming in - factor does not adequately distinguish be - Nleast, I did not. As a “life-long” creasingly restrictive and difficult to com - tween the varying nature of these of - public defender, I began my career want - ply with further complicates both the life fenses. ing to help people (the downtrodden, you of a sex offender and the work of his know, the ones Lou Reed and Billy Bragg counsel. While most sex cases result in dispositions are always of probation and sex offender treatment singing This article focuses on the many registra - or moderate prison sentences, all of these about). I never tion requirements needed to be considered cases result in life-altering collateral con - thought by attorneys defending sex cases. sequences for the defendant. All convicted everyone I sex offenders (and some not even con - Before I use the rest of this space to com - was going to victed) are required to register as a sex of - plain about the difficulties of a sex of - defend was in - fender with their local law enforcement fender, let us, Dear Reader, accept the nocent and I agency. 730 ILCS 150/3. Their name, ad - following three propositions. First, com - never made dress, picture and other identifying infor - mitting a sex offense is bad. It is wrong to assumptions mation are put into a publicly accessible inappropriately touch any other person in database, monitored and controlled by the By about their guilt. I never any way. Second, these sex offenses vary Illinois State Police. This means that upon Kathleen saw the idea greatly in their repugnance. There is a real a sex offender’s conviction or release from of defending difference morally and legally between jail or prison, he must report to the police McGee even a guilty teenage sexting and forcible sexual as - department in the town in which he re - person as sault. The fellow with a compromising sides and provide his name and a myriad problematic because I believe every per - photo of—and sent by—the quirky girl on of other information. While this informa - son is entitled to effective representation. the academic team (child pornography) tion used to be limited to address and While I still wholeheartedly believe this, does not offend one’s sensibilities in the place of work, it now includes home nothing prepared me for the emotional manner of the bike path rapist (aggra - phone, cell phone, email address, Face - and legal complexities of defending a per - vated criminal sexual assault). Third, book/twitter profile, VIN number, and son charged with a sex crime. these behaviors, though highly varied, are more. In , the laws that define when, how all similarly classified by the legislature. and where a sex offender must register, as Defending sex cases is probably the most well as the laws regulating their move - challenging form of criminal defense. Every offense, misdemeanor or felony, of ment in the community, are becoming in - These cases usually involve very serious a sexual nature is characterized by the leg - creasingly restrictive, and there is no sign allegations, defendants who are in cus - islature as a sex offense, requiring regis - of a reprieve. tody and anxious to not be, and often, the tration. These include some of the world’s most sympathetic victims: chil - following (listed from wrong to wronger Being labeled a sex offender means that dren. An awareness of the facts of the to wrongest): criminal sexual abuse, pub - you cannot live within 500 feet of a case, the defendant’s version of the facts lic indecency (third time or more), solici - school, day care (including home day and the potential sentencing possibilities tation of a prostitute (under 18), unlawful cares), playground, or any facility provid - for the sex crime are not enough when ad - restraint (under 18 and sexually moti - ing programs or services exclusively di - vising a defendant about the strengths vated), aggravated criminal sexual abuse, rected toward people under age 18. 730 and weaknesses of his case and whether child pornography, aggravated child ILCS 5/11-9.3. It means that you are not or not to accept a specific plea deal. Effec - pornography, aggravated criminal sexual allowed to access or use social networking tive representation of a defendant charged abuse, criminal sexual assault, and preda - websites while on probation, parole or with a sex crime also requires a keen tory criminal sexual assault. See 730 ILCS mandatory supervised release (MSR). It awareness of the laws regarding sex of - 150/2. While convictions for some of means that if you move, you must notify fender registration and the nuances of these charges require a ten-year registra - the police department where you origi - tion period and others require registration nally registered and the police department 24 The Docket March 2013
of your new town within three days of following offenses which no longer re - tion requirements, I must also advise him your move. It means that if you change quire a finding that the crime was sexu - that these rules and requirements often your cell phone number or it becomes de - ally motivated: kidnapping, aggravated change, and that his ability to function in activated for any reason, you must notify kidnapping, unlawful restraint, aggra - society may later be further circum - the police department of where you are vated unlawful restraint, and child ab - scribed. While the Illinois legislature is, no registered of this “change” within three duction. 730 ILCS 150/3. A child sex doubt, acting with a pure heart and the le - days. It means that you will be charged a offender is anyone convicted of the afore - $100 annual registration fee by the police mentioned crimes, whose victim is under gitimate purpose of protecting its citizens department where you are registering, 18 years of age. 720 ILCS 5/11-9.3. This when it enacts laws that limit the freedom and that, if you are unable to pay this fee, includes those pesky sexting teens. Nei - of sex offenders, one must wonder if this they may refuse to permit you to properly ther a child sex offender nor a sexual pred - multitude of increasingly restrictive laws register. It means that if you are homeless, ator is permitted to be on school grounds, serve this purpose, and at what cost to you must (along with trying to find a or in a public park, including forest pre - every member of society. Peter Tercyak, a home) report weekly to your local police serves or conservation areas. Child sex of - Democratic state representative from Con - department to register. This means that if fenders are also required to report if they necticut, addressed a related liberty issue you are unable to register within the dead - are residing with anyone under 18 year of (a Connecticut law permitting that state lines, pay the fee or for any reason are un - age (regardless of whether that individual able to comply with the registration is their own child) to their registering law to take DNA samples of anyone arrested requirements, you are subject to prosecu - agency within 3 days. It is unlawful for a for a crime), and highlighted perfectly the tion for failure to register as a sex offender, parent or guardian of a minor to allow a dilemma facing Illinois and many other a class 3 felony. A second or subsequent child sex offender to have unsupervised states. He said, “Personally I’ve long ar - violation is a Class 2 felony. See 730 ILCS access to that minor unless that person is gued that we won’t be robbed of our lib - 150/10. A third violation within 10 years the parent of the minor, only convicted of erties at gun point. We will freely give of the second makes a person ineligible for sexual abuse or is married to and living in them up one at a time to solve one prob - a sentence of probation, and a fourth vio - the same household with the parent or lem at a time with our hearts being tugged lation at any time requires Class X sen - guardian of the minor. tencing. The arrest (not conviction) by one truly horrible story at a time.” I triggers a discretionary 10-year extension Despite the extremely stringent require - hope these horrible stories come to an end of your registration period (beginning on ments imposed by the sex offender regis - and I hope that Illinois’ response to these the date of conviction for this offense OR tration laws, Illinois lawmakers’ desire to kinds of stories can become more reason - the date of release from confinement, wield control over these individuals seems able and measured, balancing fear and whichever is later). 730 ILCS 150/7. It is to be not yet sated. Last year, the Illinois freedom. up to the Illinois State Police to make the legislature enacted a law that provides determination whether to extend your that if a person who, in the past, was con - Kathleen McGee has been an Assistant Pub - registration. If the State Police discre - victed of an offense that now carries life - lic Defender for 13 years. She graduated from time registration but was never required tionarily extends your registration period, Southwest Missouri State University (now you may challenge that by filing a petition to register or is no longer required to reg - Missouri State) in 1996 with a Bachelor of to rescind the extension with the Director ister, is later convicted of any felony of - of the Illinois State Police. See Thomas J. fense, he is required to register every 90 Arts in English Literature and a Minor in Honzik v. The Department of State Police , days for the remainder of his life. 730 ILCS Gender Studies. During her college years she 2013 IL App (3d) 120103. If that doesn’t 150/3(c)(2.1). This means that if your volunteered as a student advocate for students work, you can file a complaint for admin - client was ever convicted of any offense facing disciplinary actions from the univer - istrative review in the circuit court. If that now classifying the offender as a sexual sity. In 1999, she was awarded her Juris doesn’t work, you can appeal to the Illi - predator (which now carries a lifetime Doctorate from Loyola University Chicago nois Appellate Court. And so on and so on. registration period, every 90 days), and he School of Law. At Loyola, she was awarded Additionally, if you are convicted of this has managed to successfully complete his the American Jurisprudence Award (Am Jur) offense, your registration period is auto - sentence as well as his registration period in Community Law Center, a class and legal matically extended and you are required and he is no longer required to register as to register every 90 days for the balance a sex offender, he is no longer out of the clinic that provided legal services to indigent of your registration period, no matter how woods. If he is later convicted of a felony civil litigants. She also participated in the long. 730 ILCS 150/7. offense of any kind, he will be registering “Street Law Program” which provided legal as a sex offender for his lifetime. education to high school students in various Sex offenders can also be distinguished as schools in Chicago. She has tried many cases child sex offenders and sexual predators. Ever increasing (and non-negotiable) re - and pled many more. In addition to handling These classifications further restrict their strictions on the liberty of those desig - access to public places, including parks, nated as sex offenders further impede my her felony cases, she is a member of the Lake schools, and institutions of higher learn - ability as a Defender to resolve sex cases in County Drug Court Team and has presented ing. As of 2011, a “sexual predator” in - a manner most favorable to my client. on Drug Court issues at LCBA seminars and cludes one convicted of some the When advising my client about registra - other training programs. March 2013 The Docket 25 Meddlesome Weirdo Still Employed An Evolutionary View of the PubDef Investigations Division
have a Polaroid Land Camera Auto office who immediately recruited me to as - over time the amount of complexity al - 220 in my office. Although in great sist with his substantial caseload. The shift ways increases with an attendant local Ishape, it’s clearly a relic. When visiting to case analysis and fieldwork turned out emergence of increased order. What? my office, several attorneys have com - to be a better fit than faking my way mented on the strange-looking device and though case file notes outside a court - Allow me to translate the above nerd- I have to explain that the gadget was one room. We shared a small office (filled squealing : When I arrived in 1987, murder of only two mostly with cigarette smoke), drove a Ford cases focused on blood-type identities in - cameras avail - Escort repurposed from the county auc - stead of DNA; witnesses made identifica - able for my tion block, and shared a massive IBM Dis - tions from “Mug-books” rather than use when I playwriter with the secretaries. Bulky still computer generated photo arrays; pho - joined the cameras, enormous VCRs, cassette tape tography was analog; false-confessions Public De - players, and typewriters were the tools of weren’t considered “real”; and reporting fender in the trade – a trade that has held my atten - back to the office from the field meant we 1987. tion to this day. had to find a payphone rather than simply texting or using Face Time video calls. And The Peace Corps gig failed to materialize perhaps most dramatically: the simplicity and in January 1988, I was hired full-time of a single ex-cop handling every defense I started my as an investigator, working cases with investigation (before I arrived) has now By internship in Marshall Hartman, David Brodsky, Jerry evolved to become a “Division” of six men May 1987 Block, Deb Grohs, David Keefe, and count - and women, including a Social Worker David and walked less others. I came to the PubDef as a stu - and two Immigration Specialists. Now Asma through the pid college student with little or that’s some impressive emer - door of the no understanding of indigent gence of increased order! PubDef sport - defense work. Hartman and ing an orange short-sleeved shirt, sus - the others lived and breathed This diversification penders, a full beard, earring, and a pair of the concept of Reason - contributes to what is fabulous Beatle-boots. Clearly, I was obliv - able Doubt and im - now being referred to ious as to the operation (or mission, for parted their wisdom as Holistic Defense. Not that matter) of the PubDef – I was simply on a naïve apprentice: only is the PubDef pro - a weary criminal justice major in need of the value of scrutiniz - viding aggressive legal an internship so I could graduate in the ing specific deficien - advocacy for its clients, three months before the Peace Corps sent cies in the but the members of me to Nepal. After some polite sidelong prosecution’s case, sup - this office recognize that glances at my wardrobe awesomeness, I porting a defendant’s alibi, the criminal case is not was sent to court with a couple of the at - developing alternative suspects, the only issue at hand. Our Investiga - torneys. Outside C-101, which was then and pursuing a variety of other defense tion Division broadens the scope of the of - Misdemeanor Court, the attorneys handed theories. fice to include the collateral consequences me some files and told me to find the of the charges, including underlying is - clients milling in the hallway and explain Having been a willing captive of the Pub - sues, both legal and non-legal. For exam - the “offers” inside their respective files. Def for more than 25 years, I’ve been in a ple, the components of social work and What. The. Hell. Am. I. Doing. Here?! I did - unique position to see the evolution of the therapy, as well as our analysis of the im - n’t know the first thing about legal pro - office – its personnel, its technology, its en - migration consequences for our non-citi - ceedings, let alone trying to explain the vironment, and its caseload. The diversity zen clients (see Kentucky V. Padilla ), place “going rate” for a plea negotiation. of the office has transformed from simple the defendant in a better position to make to complex. Borrowing the vernacular of an informed choice about how to proceed. At lunch, I met the sole investigator in the evolutionary biologists, it can be said that Moreover, holistic defense aims to stabilize 26 The Docket March 2013
lives and, hopefully, reduce the likelihood search the interwebs – an activity that was County where he teaches in both the Social Sci - of future criminal justice contact. certainly unthinkable to a bearded, weird ences Division and the Digital Media and Design intern twenty-five years ago. Department. He is the current President of The Neolithic Polaroid camera in my office Kenosha County Restorative Justice Inc. His Mr. Asma holds a Master’s Degree in Sociol - has earned its place in our organization scholarly interests include: restorative justice even though it won’t ever again be used to ogy/Criminology from Northern Illinois Uni - versity. He has been employed as a full time and peacemaking criminology, dramaturgical document a crime scene. I realize that this criminal defense investigator for the Lake analysis, media representations of identities, de - artifact from the early, simpler days of this County Public Defender’s Office since 1988 and viance/stigma, and the construction (and use) office can’t possibly compete with its newer is currently the Supervisor of the Investigations of power. His article, Objectifying Evil: Court - digital cousins. But it should work fine if I Division. He is a frequent conference presenter room Construction of the Accused as Other, ap - can find some appropriate film for it. I’ll just for the Illinois Public Defender Association and peared in the peer-reviewed journal open the browser on my smartphone and is an adjunct instructor at the College of Lake Contemporary Justice Review Vol 4, 2001.
Calendar of Events March 5 April 24 Peoples Law School: Estate Planning Membership Luncheon: Liberty Bell Awards College of Lake County, Grayslake Campus Milan Banquet Hall Building C, Auditorium C005
March 7 April 29 Annual Real Estate Seminar Supreme Court of the United States Greenbelt Cultural Center Attorney Admissions Ceremony March 12 Washington D.C. Membership Luncheon: Access to Justice Awards Milan Banquet Hall May 14 Memorial Service March 12 Peoples Law School: Family Law C-201 College of Lake County, Grayslake Campus Building C, Auditorium C005 May 17 March 14 Membership Picnic Annual Doctor Lawyer Dinner Greenbelt Cultural Center Highland Park Country Club May 23 March 20 Annual Employment Law Seminar Civil Trial Seminar & Golf Outing Greenbelt Cultural Center Biltmore Country Club, North Barrington For more information or to register, go to the calendar at: www.lakebar.org March 2013 The Docket 27 So, What does a Public Defender do all Day Long?
t was not that long ago that I was ap - Decker, William Carroll, William Dusher, uling! On a typical Monday morning, proached by a local attorney who and Albert O’Sullivan. This was consid - there will be 29 assistant public defenders Iasked me, “So, what does a Public De - ered a part-time position, where Daly and four contract attorneys in 14 differ - fender do all day long?” At first, I was a lit - would be appointed by the court to repre - ent courtrooms. This includes staffing tle taken aback by the question, but I just sent the criminally accused who could not bond court, two juvenile courtrooms, five smiled, and said that “the Public Defender afford to hire counsel. At the time of his felony courtrooms, and six misde - attends a lot appointment, Lake County had become meanor/traffic courtrooms. of meetings.” the 28th of Illinois’ 102 counties to have It struck me, a public defender, and it was estimated In Juvenile Court, the attorneys are as - however, that that by the time he retired from his posi - signed to represent minors accused of many people tion in 1959 he was handling about half committing criminal acts, parents ac - do not realize of the criminal cases in the county. He re - cused of abuse and neglect, and minors all that the tired to focus his efforts on his private who are the alleged victims of abuse and Public De - practice, but his extraordinary efforts and neglect. In addition to the courtroom rep - resentation, the attorneys spend time fender and the successes were the cornerstone of a long meeting with their incarcerated clients in members of history of hard-working and exceptional the Hulse Detention facility or the Lake By the office do in attorneys in the Public Defender’s Office. representing County Jail, or in the field conducting Joy the indigent Following Daly, attorneys appointed as home visits with the Guardian Ad Litem Gossman accused of part-time Public Defenders included (in the case of the attorneys who are ap - Lake County. Richard Kuseski, Paul Kaiser, and Robert pointed for abused and neglected minors), Shortly thereafter, another attorney asked Will. The first full-time Public Defender or at various social service agencies at - me if I was going to keep my job as Public was George Pease. His appointment from tending case management conferences. Defender when Mike Waller retired, since 1972–1983 marked the beginning of a The GAL attorneys will represent the he appointed me to my position. I again Public Defender’s Office with full-time as - minor through the completion of a Ter - smiled, and replied that the Public De - sistant public defenders. When Pease was mination of Parental Rights hearing and fender is appointed by the Circuit Judges elevated to the position of Associate Judge, up through the completion of an adoption and serves at their will. This person was Michael Melius became the next Public proceeding. In some instances, an genuinely surprised to learn that, and Defender (1983-1987), followed by Mar - abuse/neglect case could potentially be sheepishly retreated. shall Hartman (1987-1991), Joseph Col - open for 21 years, if the office is appointed lina (1991-1997) and (now Associate at the time the minor is born until the case So when the Lake County Public De - Judge) David Brodsky (1997-2007). In is closed when the minor reaches 21. fender’s Office was asked to write for The 2007, I was appointed by the Circuit In the misdemeanor/traffic courtrooms, Docket to celebrate the 50th anniversary Judges as the first woman to fulfill the ob - the assistants are appointed to handle of the United States Supreme Court deci - ligations of Public Defender sion in Gideon v. Wainwright , which every type of case imaginable, including granted the indigent accused the right to With each new Public Defender, the office Driving Under the Influence, Driving counsel in state court proceedings, I could has grown in both size and caseload. While License Revoked, Open Transporta - not resist the urge to proudly extol the Today, the office is staffed by 47 people tion of Alcohol, Retail Theft, Domestic virtues of my office and explain “what we with an annual budget of $4.7 million. At Battery, and Disorderly Conduct. If an of - do all day long.” the end of 2012, the office was appointed fense is punishable by incarceration and to over 12,000 new cases and over 3,700 the accused is indigent, we will be ap - The first Public Defender of Lake County Petitions to Revoke probationary sen - pointed to represent them. The attorneys was attorney Frank M. Daly, known to all tences. will interview clients, review discovery, as “Pat.” He was appointed in 1956 by the prepare motions and try cases. Since we four judges who comprised the judicial cir - So, how does the Public Defender’s Office do not staff the branch courts, all cases cuit that included Lake, McHenry, Boone, handle over 15,000 cases in a single year? are transferred to Waukegan if the Public and Winnebago counties: Judges Bernard With enthusiasm, and very careful sched - Defender’s Office is appointed. 28 The Docket March 2013
The felony caseload is much more compli - legal matter that brought them to us with - was becoming overwhelming to the attor - cated and often it takes months to prepare out first addressing another issue con - neys who were trying to assist clients in cases for trial. Cases include murder, sex - cerning them. One of the first times that I coordinating medications at the jail, ob - ual assaults, drug offenses, robberies, bur - recognized this was as a misdemeanor as - taining residential placements for sub - glaries, and thefts. Discovery is more sistant. It was early winter when a young stance abuse issues, or trying to find woman with a newborn and two other in-depth, investigations are exhaustive, counseling for the mentally ill, among and sentencing consequences are life- children under the age of four came to in - other services. Three years ago, the changing. The assistant public defenders terview with me regarding her retail theft County Administrator’s Office and the must be knowledgeable in psychological, charge. The children had no winter coats, County Board recognized our need to pro - DNA, ballistics, and fingerprint evidence, and the baby was just wrapped in a blan - in addition to staying abreast of the ket. I asked the client if the children had vide this assistance to our clients, espe - changing laws regarding evidence and coats and she began to cry. She explained cially in light of the dwindling resources sentencing. that she was unemployed, had no means for services in the community, and created of support, and had no food or clothing for the opportunity to provide this office with In addition to the above mentioned cases, herself or her children. At that moment I a part-time social worker. This position is the Public Defender’s Office is appointed knew that I was not going to be in a posi - an invaluable resource to the clients and to represent clients who have filed post- tion to counsel her regarding her criminal certainly allows the attorneys to spend conviction petitions, persons who are sub - case until I helped her with the pressing more time representing the legal issues of ject to contempt proceedings for issue of taking care for her family. I con - our clients, while knowing that their other non-payment of child support, persons tacted a local social service agency who needs are being met by the expertise of the who are facing involuntary commitment agreed to meet with her immediately to social worker. or forced medication for their mental provide food and diapers and financial as - health issues, witnesses who would like to sistance. I told her that if she came back The Lake County Public Defender’s Office invoke their right not to incriminate the next day, I would have some clothing is truly a remarkable place. A client, when themselves, and persons subject to Sexu - and coats for her children. When she ar - appointed to us, is not just represented by ally Dangerous Persons petitions. The rived the next day, I had winter coats and one assistant public defender, but by an Public Defender’s Office is an invaluable other clothing for her children, some toys member of the Therapeutic Intensive and a stroller. She explained that she was entire fleet of attorneys, support staff, in - Monitoring Court team representing all able to obtain food the day before and that vestigators, and a social worker, all of clients admitted into the Drug, Mental she felt that she was doing better. It was whom work tirelessly to insure that the Health, and Veteran’s Courts. The assis - only then that I started “representing” her rights of the indigent accused are pro - tants staffing these specialty courts do so legal interests, and she was in a better po - tected and that the quality of the legal rep - over and above their regular case assign - sition to work with me. While I cannot re - resentation is not dependent upon the ments. Finally, the attorneys must provide call the outcome of her case, I certainly financial resources of the client. So on this information regarding the immigration recall her. very busy day, with all of my attorneys in consequences of a finding of guilt to those court, doing their jobs, I have to go...to an - clients who are not American citizens, Every assistant public defender in the of - other meeting! and they do so with the assistance of our fice has stories similar to this, where a client is released from jail with no money Investigations Division. Joy Gossman became an Assistant Public De - to get back to Chicago and funds are col - fender May, 1989. Attended the University While it may be easy to define the Public lected to purchase a train ticket. Or a Defender’s Office by the number of and homeless client comes to us seeking hous - of Wisconsin-Platteville with a major in types of cases we handle, to all of us, it is ing and everyone works together to find a Criminal Justice, graduated from John Mar - truly defined by the people that we repre - shelter for that person. We have given shall Law School. Ms. Gossman is a career sent. Our caseload is made up of indigent clothing, provided transportation, and Public Defender whose commitment to the in - persons, and with that type of client, bought a cup of coffee on a cold day. We digent accused of Lake County began as a stu - many other issues come into play. Our hold the hands of their loved ones when dent intern in the Office. She became Deputy clients are sometimes jobless or homeless; sobering news is delivered, and shake their Defender in 1997 and Lake County’s 6th mentally ill or addicted to drugs or alco - hands with our victories. Public Defender in 2007. She is a member of hol; they may have no financial means to the Nicasa Executive Board, the Board of the In trying to meet the legal needs of our purchase food, medications, or support Association of Women Attorneys of Lake their families. Sometimes, they struggle clients, we do not forget the overwhelm - County, and is the Immediate Past-President with several of those difficulties at the ing sense that we have to try to help them of Jefferson Inn of Court. She is a founding same time. be in a better state than when they came to us. This holistic approach to represen - member of Lake County’s Therapeutic Inten - Often it is difficult to get to the heart of the tation is not new to us in this office, but it sive Monitoring courts program. March 2013 The Docket 29 Gideon’s Children A Brief History of the Public Defender Movement
n March of 1962, a simple man in a fenders that would give the boy a job. This Illinois would, however, play an important Florida prison wrote to the United article is small repayment of the debt I role in the growing idea that wealth IStates Supreme Court to express a sim - owe to the prisoner and the record store should not be a deciding factor in the de - ple idea. Prisoner #003826 was spending owner. It is an attempt to analyze that fun - livery of justice. Clara Shortbridge Foltz, 1962 as he had spent most of his adult damental idea that the amount of justice as outspoken an advocate as could be ex - life; Clarence Earl Gideon was serving time a citizen receives must never depend upon pected from the first female lawyer li - at Raiford the amount of justice the citizen can af - censed in California, 5 was a successful Prison for ford to buy. trial lawyer and orator in the late nine - a minor teenth century. She wrote, lectured and felony of - Gideon was not the first to think about the lobbied tirelessly for the creation of a na - fense. vital importance of indigent criminal de - tional system of Public Defenders. There After fense. In 1962, Public Defenders were al - exists little if any authority to counter the being ready working in criminal courtrooms in proposition that Clara Foltz created the forced to Illinois and a slim majority of other states very idea of the Public Defender. 6 She cer - represent as well. Lake County had been paying tainly popularized it. In 1893, Clara Foltz By himself at his Public Defenders for six years by the time came to Chicago to take part in the trial, he was Gideon penned his historic petition. Even World’s Columbian Exposition. Speaking Keith Grant convicted and the idea of Public Defenders had been before the Congress of the Board of Lady sentenced to growing for over a century by 1962. Al - Managers, she delivered a fiery speech de - ten years in prison. He became convinced though the Sixth Amendment guaranteed crying the state of American justice and that what had happened to him was that “in all criminal prosecutions, the ac - demanding a solution. She characterized wrong and he was determined to find a cused shall enjoy the right…to have the criminal defense of the times as follows: court that would agree with him. In his Assistance of Counsel for his defense”, no handwritten filing, Gideon argued that a one seemed to have thought that this “[The Defendant], in his hour of need and defendant “can not have equal rights to meant that the Government should pay peril – an hour when before him stands all the law unless he does have a attorney.” for that defense. It was not until 1854 the menacing machinery of the criminal He concluded by noting that “The ques - (sixty-five years after the Bill of Rights was law, when he is deserted by friends and as - sailed by foes; when, if ever the State tion is very simple. I requested the court created) that the Indiana Supreme Court should lend him its protection, the law rel - to appoint me attorney and the court re - recognized that “[i]t is not to be thought egates him to his savage state, and tells fused. All countrys try to give there Citi - of, in a civilized community, for a moment, zens a fair trial and see to it that they have him, as if conferring a mighty boon, that that any citizen put in jeopardy of life or counsel.” 1 This “very simple” question he may have the pitiful privilege of de - liberty should be debarred of counsel be - would force the Supreme Court to change fending himself if he can.” 7 cause he was too poor to employ such its mind, and change the way an entire aid.” 3 But this proved a false start in a na - nation treated its indigent criminally ac - This “pitiful privilege”, Ms. Foltz believed, tional movement towards a system of in - cused. could never effectively oppose the might digent defense. In Chicago, not until 1905 and skill of the trained prosecutor. Ms. Also in March of 1962, a young record would the Protective Agency for Women Foltz did not reserve her attacks only for store owner begat 2 a son. This child would and Children (founded in 1886) combine the prosecution; she characterized the de - grow older (but not up) and find himself with the Bureau of Justice (founded in fense attorneys willing to take appoint - deeply indebted to prisoner #003862. The 1888), to create the Chicago Legal Aid So - ments to defend the poor as “failures in record store owner would teach the boy ciety. 4 While this Society would very rarely the profession, who hang about courts about doing the right thing, working hard task its lawyers with indigent criminal de - hoping a stray dollar or two from the un - and to always expect justice to be equal fense, its focus, similar to most Societies fortunate, or from the kindergartens of and fair, but Prisoner #003862 would like it nationwide, was on women’s and the profession just let loose from college bring to fruition a system of Public De - worker’s rights. and anxious to learn the practice.” 8 1 Answer to respondent’s response to petition for Writ of Certiorari, Gideon v. Cochran , Docket no. 890 Misc., filed April 21, 1962. 2 First documented use of the word “begat” in the LCBA Docket . (prove me wrong…) 3 Webb v. Baird , 6 Ind. 13 (1854) A case that struggled to reconcile the defendant’s right to counsel with counsel’s right to be compensated. 4 Thale, Christopher, “Legal Aid”, http://encyclopedia.chicagohistory.org/pages/734.html. Chicago History Museum, 2005. Web. 1 FEB 2013 5 Babcock, Barbara, Woman Lawyer , Stanford University Press, 2011 6 Id. 7 Clara Foltz, Public Defenders – Rights of Persons Accused of Crime – Abuses Now Existing , 48 Alb.L.J. 1893 8 Id. 30 The Docket March 2013
Her solution was simple, ous” and recognized that “the Sixth creased case-flow and the willingness of Amendment withholds from federal the APDs to accommodate the prosecu - “For every public prosecutor there should courts in all criminal proceedings the tion by stipulating to witnesses or evi - be a public defender chosen in the same power and authority to deprive an ac - dence that was unavailable. Judge way and paid out of the same fund. Police cused of his life or liberty unless he has or Finnegan was most impressed with the de - and sheriffs should be equally at his com - waives the assistance of counsel.” 13 Four fender’s refusal to use “every legal or mand and the public treasury should be years later, the Court refused to extend quasi-legal resource…in order to win a fa - equally open to meet the legitimate ex - this fundamental federal protection to de - vorable verdict” and noted that instead penses of the defense and the prosecu - fendants in state courts. 14 For the next they focused on convincing their clients to tion.” 9 twenty years, defendants in state courts, plead guilty. 18 While the Chief Judge’s even those facing execution, could point focus may have been flawed, a modern Her radical idea would guarantee a pen - to no federal authority guaranteeing them criminal practitioner would cringe at a niless defendant all of the same resources the right to counsel. In 1961, the caseload of 75 capital cases a year while as the State. While that speech was full of Supreme Court abrogated the “special cir - still managing an individual monthly fire and accusation, she was later able to cumstances” rule in state Capital cases 15 caseload of 200 clients. In their first 90 offer a calmer justification for her out - and set the stage for Gideon’s simple idea days, those 6 young defenders tried 25 landish idea; of fairness. jury trials and obtained 11 acquittals and “The State has no desire to wrong its peo - 1 NGRI. 19 Far from being solely concerned But neither Illinois nor Lake County had ple. Its citizens are not its enemies. It is not with pleas and processing times, those six waited for the Supreme Court to opine interested in convicting the innocent…. young defenders, against tremendous that indigent defense is an essential com - Their full protection is its legitimate care, odds, began to hew a modicum of justice ponent of a truly just system of justice. In 20 and in giving it, the State will not only per - out of a system rife with injustice. 1930, with the nation deep in Prohibition form its duty but will promote exact and and the streets of Chicago running red Lake County appointed its first Public De - equal justice, protect the poor, save the in - with the blood of the bootlegger wars, fender, a part–time affair, in 1956. The nocent and remove an unjust burden construction was completed on a grand “Office” remained a part-time job until from a generous profession.” 10 new courthouse at 2600 South California 1972, when George Pease became the While her efforts paid more immediate Avenue on the west side of Chicago. In County’s first full time Public Defender. In dividends in her home city, 11 the Public September of 1930, Benjamin Bachrach 1987 Lake County hired as its third full- Defender Movement was slow to take root became the first Public Defender of Cook time Public Defender Marshall Hartman across the country. County. On the 6th floor of the new court - (also in 1987, that record store owner’s house, the Public Defender’s Office was son we heard about earlier graduated law In 1932, the Supreme Court conceded staffed by Bachrach, 5 Assistants and a school and joined the Army’s JAG Corps). that, “in a capital case, where the defen - stenographer. In their first three months Marshall was a driving force in the Public dant is unable to employ counsel and is in - they defended nearly 600 clients. 16 By Defender Movement both in Illinois and capable adequately of making his own 1934, those 6 attorneys defended nearly nationally. In the aftermath of Gideon, he defense because of ignorance, feeble- 300 death penalty cases. By 1942, re - helped obtain a multi-million dollar grant mindedness, illiteracy, or the like, it is the duced to 5 attorneys, they defended nearly to create the Illinois Defender Project. The duty of the court, whether requested or 400 more capital cases. By 1955 there Project grew out of the Cook County Pub - not to assign counsel for him as a neces - were 8 attorneys and when Gideon was lic Defender’s struggle to provide appellate sary requisite of due process of law.” 12 heard in 1962, the office consisted of 12 defense services. This effort would lead These “special circumstances” and a lim - attorneys and 4 investigators. 17 But the Marshall to help draft what would become itation to capital cases would be the cor - presence of Public Defenders did not nec - the Illinois Appellate Defender Act, trans - nerstones of state-based appointed essarily guarantee absolute fairness. In forming the Defender Project into a state- indigent defense for the next thirty years. 1934, Philip Finnegan, Chief Judge of the wide Office of the Appellate Defender. 21 In Federally, however, the Public Defender Cook County Criminal Courts, wrote a law 1969, Marshall was a founding member Movement had arrived. In 1938, the review article extolling the virtues of the of a small Illinois Public Defender Associ - Supreme Court called the practice of crim - young Public Defender’s Office. But the ation. 22 This Association grew from a inal law “intricate, complex and mysteri - virtues he most admired were an in - small group of defenders to cover every 9 Id. 10 Clara Foltz, Public Defenders , 31 Am.L.Rev 393, 1897 11 “Our History”, http://pd.co.la.ca.us/About_history.html. Web. 1 FEB 2013 (The Los Angeles Public Defender became probably the first regular governmental office providing indigent defense in January 1914) 12 Powell v. Alabama , 287 U.S. 45, at 71 (1932) (known generally as “the Scottsboro Boys’ Case”) 13 Johnson v. Zerbst , 304 U.S. 458, at 463 (1938) 14 Betts v. Brady , 316 U.S. 455 (1942) 15 Hamilton v. Alabama , 368 U.S. 52 (1961) 16 Historical Perspective , 75th Anniversary Law Office of the Cook County Public Defender, (2005) 17 Id. 18 Steve Bogira, Courtroom 302, Alfred A. Knopf (2005) p. 125 19 Historical Perspective, supra . 20 Thomas F. Geraghty, Cook County Criminal Law Practice in 1929: A Community’s Response to Crime and a Notorious Trial , 92 J. Crim L. & Criminology 555 (2003) 21 Interview with Marshall Hartman by James Neuhard. National Equal Justice Library Oral History Collection, Georgetown Law Library. 15 NOV 1990 22 The Illinois Public Defender Association , state.il.us/defender/ipda. Web. 1 FEB 2013 March 2013 The Docket 31 county in Illinois. The IPDA counts over Bachrach could never have imagined on training conducted for all employees in the Of - 400 Chief and Assistant Public Defenders the 6th floor of 26th and California fice. Previously, Keith served as the PD’s in Illinois as its members and sponsors nu - eighty-three long years ago. We have Felony Division Chief and before that as the merous low-cost state-wide defender come a long way. Misdemeanor Division Chief. Before becom - training seminars each year. Lake County plays a vital role in this organization, But all the technology and manpower in ing an administrator, Keith was a line-assis - which has elected two Lake County attor - the world will come to nothing if the de - tant in the Public Defender’s Office for nearly neys to its presidency in the last decade. fenders so empowered lack the skill and 10 years. Prior to becoming an Assistant desire to make use of it. And there is the Public Defender, Keith was a prosecutor with Returning again to that son of a record amazing part of this Docket edition. While the Army’s Judge Advocate General’s Corps, store owner, after prosecuting, writing the casual reader will find some interest - assigned to the First Infantry Division. In wills and reviewing regulations, he left the ing history, a few unique personal per - 1996, Keith was re-called to active duty and Army and came to work in Lake County. spectives and even some usable legal When he stepped into the Office of the authority, a deeper reading will allow you deployed to Europe with the Army Reserve in Public Defender in 1992, he found a sin - a glimpse of the tip of a devoted cadre of support of Operation Joint Endeavor, the gle terminal linked to the Circuit Clerk and criminal lawyers who share a firm belief Bosnian peacekeeping mission. Keith is a two word processors. Several typewriters in the importance of indigent defense. The Past- President of Lake County’s Jefferson Inn were used for the bulk of the document men and women defending felony level of Court; the Co-Chair of the LCBA Criminal preparation and carbon paper was horded cases and supervising in our Lake County Law Committee; 2ndVice President of the like gold. For the first several weeks, his Public Defender’s Office have an aggregate LCBA; and President of the Illinois Public De - desk was a hollow-core door laid across of more than two centuries of experience fender’s Association. Keith is a frequent pre - some file boxes in a hallway. The structure in the office and an average tenure of senter at seminars put on by the LCBA, the of the office was simple, a Public Defender nearly 14 years. While our misdemeanor and his First Deputy oversaw a staff of and traffic level defenders lack the years IPDA and the ISBA, is often published in the eighteen attorneys. There were no Divi - of experience, they lack none of the com - Docket and has served as a primary organizer sion Supervisors, because there were no mitment. We each stand upon the shoul - of the Annual LCBA Criminal Law Seminar formal divisions to supervise. ders of our predecessors whose devotion since 2002 and one of the organizers of the to the Public Defender Movement has LCBA Capital Litigation Seminar since Today, I sit at a desk surrounded by thirty- paved our way. From Clara Foltz, to 2005. eight fellow defenders lead by the first Clarence Earl woman to be appointed Chief Defender for Gideon and Mar - the County. I am one of four attorney-su - shall Hartman, we pervisors overseeing four distinct divisions repay the debt we (Juvenile; Misdemeanor/Traffic; Felony; owe them through and Special Defense/Training). We are our service to our supported by 7 administrative staff, 6 in - clients and our vestigators and a social worker. I like all of continued quest for my fellow defenders, have a computer on excellence in crimi - my desk which archives every motion I’ve nal defense. We ever written, conducts my legal research hope we embody in seconds, and keeps me in constant con - that simple idea tact with judges, prosecutors, clients and that a defendant countless others. In 1962, Bruce Robert “can not have Jacob (the young Assistant Attorney Gen - equal rights to the eral assigned to defend the State of Florida law unless he does against Gideon’s claims) would drive 280 have a attorney.” miles with his wife from Bartow to Talla - hassee every weekend to prepare his ar - Keith Grant is the gument in the Florida Supreme Court law Lake County Public library. 23 In 1992, I had to walk down the Defender’s Chief of hall to the County Law Library for most Special Defense and reference materials. Today, all of that ref - Professional Devel - erence material is not only on my com - opment, responsible puter, but some of the research that went for the coordination into this article was done on a smart - and litigation of phone. I and my fellow Defenders call Public Defender com - upon resources and support that Mr. plex cases and all
23 Anthony Lewis, Gideon’s Trumpet , Vintage (1966) p. 156 32 The Docket March 2013
January 2012 Board of Director’s Meeting
Consent Items The Board engaged in a dis - MEMBERS PRESENT A motion was made to sus - cussion regarding its ability to pend Robert’s Rules of Orders suspend or expel Attorney Marjorie Sher President and to adopt the Consent members. It was determined Agenda items, which was sec - by the Board that no policy or Steven P. McCollum onded. The following items on by-law currently exists on this First Vice-President the Consent Agenda were topic and as such, the Mem - Keith Grant adopted with no discussion: bership Services committee Second Vice-President should fully investigate the Michael Conway Minutes • Minutes from December issue and make a recommen - Treasurer By • New members since Decem - dation. Michael Ori moved to ber Michael Ori Michael send this issue to the Member - Secretary • Consideration of co-spon - ship Services Committee for Ori, sorship of ISBA CLE pro - Perry Smith Secretary discussion and recommenda - Immediate Past President gram. Recommended by CLE tion, and that motion was sec - Gary Schlesinger Committee Chair Richard onded by Dan Shanes. The Mark Van Donselaar Kopsick motion passed unanimously. • Access to Justice Award Donald Morrison nomination form It was mentioned that cur - Brian Lewis • President’s Award Dinner rently, whether a by-law on Chris Boadt this subject is recommended or Executive Director Discussion Items not, Roberts Rules of Order al - Treasurer’s Report ready provides for procedures room Committee of the Bar Michael Conway reported that for Removal of a member in Association be empowered to the Association is still adjust - the event of misconduct. The consider the rule and to make ing to the current dues cycle. Roberts Rules of Orders proce - any timely recommendations Because of a change in the dures could be implemented for changes to language of the way a vast majority of mem - now, if necessary. proposed rule to the Judges. bers pay their dues, there is This motion was seconded by currently less income coming Cameras in the Court - Don Morrison and the vote into the Association during room passed six votes in favor to four these current months than in The committee that has been votes against. the past. However, the Associ - meeting regarding this issue ation, which transferred funds has recommended that the As - Keith Grant then moved that to the Baytree Account when sociation complete an applica - the LCBA oppose the Cameras the majority of members paid tion for a Pilot Program that in the Courtroom proposed their dues, will be able to ac - would be forwarded by Chief rule on principal, but indicate that the association is pre - cess those funds to pay any Judge Foreman to the Supreme pared to move forward with outstanding bills, if necessary, Court. the rule because of its in - during the month of February. The Board was also provided evitable implementation. Consider Amendment with a proposed Local Court Perry Smith seconded that to the Bylaws to Allow Rule regarding cameras in the motion and after more debate, for Suspension or Expul - courtroom. After a spirited de - the motion was defeated with sion of Members by the bate, Gary Schlesinger moved two votes in favor and eight Board of Directors that the Cameras in the Court - votes against. March 2013 The Docket 33
Letter to Justice Kilbride stantial progress and that re: Public Comment on members are well on their Proposed Statutes way to getting access. Gary (Schlesginer) Schlesinger moved that the Gary Schlesinger provided Association President send a the Board with a copy of the letter that was proposed by letter which he sent to Chief the committee. This motion Justice Kilbride and others re - was seconded by Keith Grant garding the Association’s de - and passed unanimously. sire to be informed of Judge Shanes abstained from proposed Supreme Court this vote. Rules prior to adoption so that the Association can Family Law comment on those Rules. Recommendation to Take Position Regarding Strategic Plan Determine Revision of Statute What is the Next Step Gary Schlesinger highlighted (Smith) a recent change in the Law Perry Smith reported that relative to Body Attachments certain portions of the and Personal Service. Gary Strategic Plan have already outlined that the change in been implemented and are the law seems to have unin - currently in effect, other por - tentionally caused great diffi - tions are in the implementa - culty to family law tion phase and the remaining practictioners, as was dis - portions of the strategic plan cussed at the last Family Law have not yet begun. Perry Committee meeting. Judge Smith proposed that a com - Marcoulier voiced support for mittee be formed to deter - an amendment to the new mine if the items of the change that would seemingly strategic plan already imple - correct the unintended con - mented are effective and for sequence. Gary Schlesinger the items not in effect yet, moved to have the LCBA sup - what is needed to be done to port the amendment as de - implement those items. Keith tailed by Judge Marcoulier Grant, Mark VanDonselaar and this motion was sec - and Gary Schlesinger each onded by Judge Shanes. After volunteered to join this com - another spirited debate, the mittee and the group will Board voted five in favor and provide the Board with a Sta - five against the Motion. Pres - tus at the next Board meet - ident Sher then cast the de - ing. ciding vote in favor of the Motion, to break the tie. Electronic Access to Files (McCollum) Immigration Committee The committee formed to ad - Associate Members vocate for Electronic Access Perry Smith moved that As - to the Court have met several sociate Members who are times and continue their ad - employees of a Law Firm be vocacy for the membership. allowed to join the immigra - Keith Grant reported that the tion committee and if they committee is making sub - are an employee of a Public 34 The Docket March 2013
Body then they would receive Policies and Appointments a half price fee. Motion was The Board discussed Rule 4.2 seconded by Steve McCollum of the Policies and Proce - and Keith Grant abstained. dures of the Judicial Selection The motion passed nine votes and Retention Committee which disqualify a current in favor, one vote against. board member from serving Docket Articles as Chair of the Judicial Selec - tion and Retention Commit - The Docket Editorial Board is tee. After debate, Steve looking for articles relating to McCollum moved to strike the landmark decision in the language “and members GIDEON v. WAINIWRIGHT. of the Board” from the rule This plea for articles will be and this was seconded by made to all committees. Dan Shanes. The motion passed unanimously with Family Law Pro Se one abstention from Don Guidebook Morrison who was also not The Family Law Committee is present during discussion. currently reviewing the pro - A motion to Adjourn was posed handbook and the made by Steve McCollum Board will discuss their find - which was seconded by Brian ings and opinions at the Feb - Lewis. The motion passed ruary meeting. unanimously.
Judicial Selection and Next Meeting: Thursday, Feb - Retention Committee ruary 21, 2013. March 2013 The Docket 35 Monthly LCBA Bulletin Committee Meetings Board Day Meeting Location Time 1st Tuesday Diversity (even months) LCBA 12:00-1:15
GURNEE: 1st Thursday Real Estate In-Laws 5:00-6:30 OLD GRAND AVE. Newley remodeled single 1st Thursday Young & New Lawyers LCBA 12:00-1:15 space in shared office. Rea - sonable. Michael (847) 263- 8820. 2nd Tuesday Technology (odd months) LCBA 12:00-1:15 DOWNTOWN WAUKEGAN Across from Courthouse, 2nd Tuesday Immigration LCBA 4:30-5:30 275-1800 square feet. Jani - torial provided. Well main - 2nd Wednesday Family Law Advisory Group LCBA 12:00-1:15 tained. Space available. 33 N. County & 325 Washing - 2nd Thursday Community Outreach LCBA 12:00-1:15 ton. Please call Ron Pollack at (847) 482-0952. DOWNTOWN WAUKEGAN 3rd Tuesday Local Government LCBA 12:00-1:15 Offices for Lease. 200 N ML King Ave. 1, 2 or 3 Offices. 3rd Wednesday Family Law C-103 12:00-1:15
280 to 685 Sq Ft. Office rd Building for Sale or Lease. 3 Wednesday Criminal Law C-201 12:00-1:15 222 N County St. 11, 756 3rd Wednesday Employment Law (Odd # Months) The Grille on Laurel 5:15-6:30 Sq. Ft. Will Divide. (847) 680-4740. www.tjproper - 3rd Thursday Board of Directors LCBA 12:00-1:30 ties.com. 3rd Thursday Trusts & Estates Various Locations 7:00-8:30
3rd Thursday Civil Trial & Appeals Lake House 5:00-6:30
* Meetings subject to change, please check your weekly e-news or call the LCBA Office @ (847) 244- 3143. Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and bever - ages at restaurants are purchased on a individual basis. 36 The Docket March 2013
by Scott B. Gibson President, Lake County Bar Foundation
Our Donors Future Fundraising
n last month’s Docket page we established the recipients of our LCBF donations and a great thank you went out to all those organizations for the fine work that performed tirelessly on Ibehalf of all of our Lake County citizens. On the flipside is the importance to also recognize that we need to implement structures to not only focus our fundraising endeavors but also to rec - ognize those individuals and organizations who give funds because they believe that the mis - sion and function of the LCBF is worthy of their charitable dollars.
To that end, at our next Board meeting I will present a plan to set a donation giving structure. In addition to setting a structure of giving levels we also will discuss the implementation of ded - icated giving through estate planning and other donation revenue sources. In next month’s col - umn I will outline our given structure.
On behalf of your LCBF Board we truly give thanks to all who have donated their money and time on behalf of the LCBF to date and look forward to a great future.
2013 High School Mock Trial Winner Boylan Catholic High School, Rockford, IL $250 Prize Presented by LCBF January 2013 The Docket 37
PRST STND US POSTAGE PAID GURNEE, IL PERMIT NO. 356
300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259 19 th Annual Family Law Seminar February 15 – 18, 2013 | San Diego, CA