THE November 2009
DOCKETVol.16, No.11 The Official Publication of the Lake County Bar Association
Domestic Violence
Criminal Law Issue
Inside this issue... In the Director’s Chair: Criminal Law Committee 2 by Christopher Boadt, Executive Director The President’s Page: The Holiday Season and Charitable Hearts 3 by Scott B. Gibson The Chief Judge’s Page 5 by Chief Judge James K. Booras A publication of the
Domesitc Violence and Sexual Assault Cases 9 by Scott B. Gibson
An Overview: Lake County Domestic Violence Court 13 by Steve McCollum Domestic Violence Panel: Practical & Ethical Considerations 19 in a Domestic Violence Prosecution 300 Grand Avenue, Suite A by Keith Grant Waukegan, Illinois 60085 Phone: (847) 244-3143 Victims of Domestic Violence as Witnessed Firsthand in a Hospital Fax: (847) 244-8259 21 by Carol Hamilton www.lakebar.org [email protected] 2009 Caselaw Update 23 by Keith Grant 2009-2010 Officers & Directors Scott B. Gibson, President Are You My Lawyer? Negotiating the Perils of Pro Se, Stand-by Elizabeth M. Rochford, First Vice-President 29 & Hybrid Representation Perry S. Smith, Jr., Second Vice-President by Keith Grant Kevin M. Kane, Treasurer Marjorie I. Sher, Secretary Criminal Law Seminar Bryan R. Winter, Immediate Past President 33 by Jim Simonian Hon. Valerie B. Ceckowski Hon. Fred L. Foreman Joann M. Fratianni 33 The Grapevine Thomas M. Gurewitz Steven P.McCollum Meeting Minutes Michael J. Ori 34 July 16, 2009 by Marjorie Sher, Secretary Editorial Board Michael S. Strauss, Co-editor Rebecca J. Whitcombe, Co-editor LCBA Bulletin Board & Calendar 36 Ann Buche Conroy Hon. Mitchell Hoffman Daniel L. Jasica Advertisers Hon. Raymond J. McKoski Stephen J. Rice Back Attorney’s Title Guaranty Fund, Inc. 4 Lake Effect Development, LLC Neal A. Simon 8 Centegra Health System 16 Lakeside Investigations James K. Simonian 7 David L. Gates & Associates Front McDonald Hopkins LLC Hon. Daniel B. Shanes Neil H. Good 7 Deposition Reporters 16 Hon. Stephen Walter (ret.) 17 Gibson & Associates, Ltd. 15 Professional National Title Network, Inc. 32 ISBA Mutual 7 Wells Fargo Advisors Staff 10 Joseph Modica & Associates, Ltd. 12 Vahl Reporting Service Christopher T. Boadt, Executive Director 10 L & L Reporting Services, Inc. 2 The Docket November 2009
In the Director’s Chair by Christopher T. Boadt Advertising Rates
One Six Twelve Criminal Law Committee Issue Issues Issues his month’s magazine focuses attention on the Criminal Eighth Page $65 $60 $55 Law Committee program recently held in Milwaukee, Wis- Quarter Page $115 $105 $95 Tconsin. The seminar provided an overview of changes to Half Page $170 $155 $140 the criminal law practice but focused attention on how the court, Full Page $290 $265 $240 practitioners and the military handle domestic violence matters. Inside Front Cover ...... $600 per Issue Many of the topics discussed at the seminar are summarized in Inside Back Cover ...... $600 per Issue this issue. Back Cover ...... $750 per Issue Violence against women is a critical public health problem that has devastating physical and emotional consequences for Bar Bulletin Board women, children and families. Women are frequent targets of Upto5Lines ...... $25 both physical and sexual assault by partners and acquaintances, as well as strangers. Domestic violence during recent years has 6to10Lines ...... $35 been acknowledged as being a rapidly growing health concern 11to15Lines ...... $40 in America’s communities. 16to20Lines ...... $45 The young lawyers committee, chaired by Joe Fusz, has held To place an ad or for information on adver- fundraisers for the past two years and donated 100% of the pro- tising rates, call (847) 244-3143. Submis- ceeds to A Safe Place of Lake County. A Safe Place is a multi- sion deadline: first day of month preceding faceted organization focusing on the prevention of domestic the month of publication. All submissions violence through empowerment and counseling, intervention must be made in electronic format (high res- and education, research and evaluation. olution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lake- This month, President Scott Gibson talks about the important vol- bar.org/html/docketRates.asp. unteer work our members are doing…and the young lawyers fundraisers are just another example. The Docket is the official publication of the Lake County Bar Association, 300 Grand Do you, or do you know of a member, who is exhibiting extraor- Avenue, Suite A, Waukegan, Illinois dinary volunteer efforts? I encourage you to share those experi- 60085 (847) 244-3143, and is published ences with us so that we may inspire other members. You may monthly. Subscriptions for non-members write to me at [email protected]. are $45.00 per year.
Reproduction in whole or part without per- mission is prohibited. The opinions and po- sitions stated in signed material are those of the authors and not necessarily those of the Association or its members. How to write for The Docket
All submitted manuscripts are considered The Editorial Board of The Docket is always looking for fresh and relevant articles by the Editorial Board. All letters to the edi- to feature every month. Feature articles should be a minimum of 1,500 words tor and articles are subject to editing. Pub- and a maximum of 3,500. The deadline for submissions is the first day of the lications of advertisements is not to be month preceding publication. Articles should be submitted electronically in considered as an endorsement of any prod- Word or WordPerfect. The Editorial Board reserves the right to edit articles as uct or service advertised unless otherwise they see fit to meet the needs of the publication. Please send submissions to stated. [email protected] or call (847) 244-3143 with questions. November 2009 The Docket 3
The President’s Page by Scott B. Gibson
The Holiday Season and Charitable Hearts
s you read this, we will all have ex- tance in the Probate Court is for petitioners Foreclosure Help Desk perienced not only the feast but who file for guardianship of the person of On November 3, 2009 a Chicago Tribune Aalso the appreciation of the bounty a minor child will be the subject of the help article, “Foreclosure filings spike in collar of life as we celebrate the memory of the given at the guardianship help desk. Fu- counties,” noted that Lake County fore- giving of thanks by those known and un- ture plans include the expansion of that closures are up almost 83 percent from known. What may get lost in the celebra- legal aid to guardianship of the elderly and last year. But well before that startling sta- tion of the Thanksgiving holiday is that disabled adults. tistic had been published, our LCBA mem- the charitable giving by the Indians to the bership was already hard at work pilgrims of food, shelter, and comfort, was A petitioner is typically unfamiliar with addressing the problem. The LCBA true charity given from potential victims Probate Court and the technical require- teamed with the 19th Judicial Circuit to potential oppressors. The charitable ments of the process often create frustra- Court to create a Foreclosure Help Desk. gifts were given both in a “known” sense tion for the individuals, lack of efficiency Volunteer attorneys are lined up to be to the individual pilgrims but also in the in the Court, a waste of time and energy trained and to offer their time to assist “unknown” sense in that they were given on both sides of the bench, and, in tragic homeowners in need. without conditions or consideration for cases, endangering a child. Judge Ceck- the future actions of the pilgrims and sub- owski and Judge Winter teamed with the The help desk provides foreclosure defen- sequent European settlers of North Amer- LCBA in creating the first ever help desk dants one-on-one information sessions ica. The peaceful joining together of for these petitioners. A simple summary with volunteer attorneys on site at the individuals from different continents, cul- of the procedures has been established courthouse before their cases are called. tures, and languages was symbolically ac- and user-friendly forms have been crafted The program provides great benefit to in- complished by the simple act of charitable specifically for this process. The volunteers dividuals overwhelmed by the prospect of giving. That symbolism is reflective of the will be available in the Jury Room outside losing their homes, and also to the court actual charitable activities of your Lake the Probate Court to guide the petitioners in creating some consistency and effi- County Bar Association. through the creation, execution, and col- ciency among those appearing on their lection of the required documentation own behalf. LCBA Wills, Trust, Probate Committee and send them into Court prepared. Guardianship Aid Program “Fix Your Mortgage” First Vice President Elizabeth Rochford This project includes not only our attor- We were all inspired by the great achieve- along with Second Vice President Perry ney members but especially our associate ments of the foreclosure desk, but our Smith and Chair Tom Pasquesi bring vig- members who have been asking for more local attorneys and judiciary recognized orous leadership to the cause of helping meaningful and participating roles in the that there was even more to be done. In those in need regarding guardianship of LCBA. The volunteer response from the the spring of this year, President Obama children, the elderly, and disabled adults. Associate Member Committee led by co- introduced the Making Home Affordable As we all know, the law of guardianship chairs Gayle Miller and Leslie Klocek was (MHA) program intended to help home- can be a nightmare for the average person immediate enthusiasm. On November 11, owners who are struggling to stay cur- and extremely expensive, especially if 2009, a training session was held for the rent, or who are already behind on their there are complicated or competing claims volunteers attended by dozens of your mortgage payments. The program offers for the custody of the person and/or estate. LCBA lawyer members and associate financial incentives to loan servicers to As a first step, the physical construction is members. In a subsequent issue of The modify existing first mortgages. Home- nearly complete of the “guardianship help Docket, we will be able to give thanks and owners who qualify are eligible for modi- desk.” The physical presence of the appreciation to those individuals. The fication of their first mortgage to 31% of guardianship help desk which will be run LCBA Board is proud and happy to an- their gross monthly income. by the volunteer lawyers of the LCBA will nounce that we expect the volunteer desk be in the courthouse physically near the to be assisting pro se petitioners before the The ambitious program offered relief for Probate Court. Initially, the need for assis- beginning of next year. tens of thousands of homeowners, but 4 The Docket November 2009 the application process was daunting for information and for opportunities to join headed by Ed McGlynn, was previously re- most of the citizens who stood to benefit. in this important project. ported to the membership as being a LCBA member Hank Shulruff of Attor- wildly successful program which contin- neys’ Title Guaranty Fund made it his per- LCBA Legal Aid Committee ues to help those people in need of hous- sonal and professional mission to assist Chairpersons Perry Smith and Marjorie ing and the legal documents necessary to homeowners through the application Sher are greatly commended for the apply for it. It is a pleasure to report that process. ATG has trained hundreds of at- countless number of selfless hours they the Wills, Trusts, and Probate Subcom- torneys who have assisted thousands of have and continue to give for our Legal mittee of volunteers headed by Ed McG- homeowners at “Fix Your Mortgage” Aid Committee on behalf of our Lake lynn is still going strong and just events in Cook and other counties in cen- County residents who need but cannot af- completed another session on Saturday, tral Illinois, and in Madison, Wisconsin. ford essential legal services. The Legal Aid November 7, 2009, helping clients on a Committee hosted a “giving thanks” cock- pro bono basis. The volunteer soldiers of the LCBA mem- tail party at Café Pyrenees, Libertyville, bership have now joined with ATG and Illinois on November 4, 2009 to a large Finally, both Bryan Winter and I have re- are in process of bringing a “Fix Your turnout to give some appreciation for ported extensively on the success of the Mortgage” event to Lake County. Our at- those Bar Association individuals and People’s Law School and the outreach to torneys will be trained for free CLE credit, other members of the community who the community in giving legal education and we project that in early 2010, we will generously give of time and money to sup- which was so enthusiastically received by be hosting a Saturday morning opportu- port this essential cause. our audience. nity to help the members of our local com- munities. Volunteer attorneys and Yes, There is Even More… It is a pleasure to be able to report and counselors will help Lake County home- brag a little bit about the outstanding vol- owners determine their MHA eligibility, Habitat for Humanity Project, unteer effort and selfless giving of energy, and assist them in assembling and sub- People’s Law School… talent, and financial resources by your mitting their loan modification packages. And yet we are not done! The Habitat for LCBA members. A round of applause is in Please watch the LCBA updates for more Community Project, which was spear- order, and a great thanks to you all.
LCBAs New Address: 300 Grand Avenue, Suite A • Waukegan, Illinois 60085 November 2009 The Docket 5
The Chief Judge’s Page by Chief Judge James K. Booras
uror Appreciation Week was October The advantage of the DMV loaded into our database. These 13 thru 16, 2009, and in my October records is that they tend to be records will support our sum- JArticle, I praised jurors for taking off more accurate since regular re- moning needs for the next year. from work, business or everyday affairs to newal is required. Voter registra- devote a full week to serve as jurors. We tion records do not expire or It would be ideal if we could rely on vol- see them Monday mornings — some wide require renewal. This was appar- unteers to serve as jurors. But when you awake, some not; but they are here to ent recently when we received a rely on volunteers you usually get the serve — some willingly, some not. They call from the daughter of a sum- same ones. As we know, jury trials are have been subpoenaed to serve. They moned juror stating that her fundamentally based on the notion that don’t volunteer, even though there people mother died 12 years ago. Our someone on trial must be tried by his have been known to ask me to get them on record indicated the source of the peers. The jurors must represent a cross- section of the community. They must a jury,and complain that they have never juror’s name was her voter regis- come from all backgrounds and social been subpoenaed for jury duty. I explain tration. I called the County strata, because litigants come from all to them that it is a random process. Just as Clerk’s office and was informed backgrounds. They can be rich, poor, citi- I can not get them off of jury duty, I can- that their records are only up- zens or non-citizens; they can be everyday not get them on. dated when specifically notified that the voter has died or moved people or Conrad Black. Thus the only way to meet the “peer” requirement is Indeed, the process is random and jurors out of the county. As we know, through random selection. Sometimes we are picked from a variety of data sources. many individuals believe various don’t get the desired result, but random Many people that don’t want to serve try government offices share infor- means that we roll the dice (in our case to avoid it by not registering to vote. To mation. their surprise, they are still summoned for the computer does that part). On an annual basis we receive a jury duty.Jury commissioners around the It is widely known that jurors would use new source list from the Admin- state rely on voter registration lists and on every possible excuse to get out of jury istrative Office of the Illinois driver’s license data from the Secretary of duty. Lately, however, jurors are experi- Courts (AOIC). The compact disk State. According to Barbara Maddox, Jury encing economic hardships just like every- format contains all qualified (18 Commissioner for the Nineteenth Judicial one else. Families that once had two bread & over) Lake County residents. Circuit, Lake County,jurors often ask how, winners may now have only one, and that where, or why she got their name. While The source list CD is sent to our one bread winner may be afraid to miss these questions are sometimes asked out jury management vendor, Jury work for fear of losing the family’s only of sincere curiosity, they are more often Systems, Inc. (JSI) for the first pro- source of income. Jurors understandably asked out of annoyance and dismay. Ms. cessing stage which includes fear financial ruin when they receive that Maddox reports the following: merging duplicate records and jury summons. As if their current finan- eliminating those who were pre- cial woes weren’t enough, now they also The misconception that voter reg- viously disqualified or served have to deal with jury duty.They say: “I istration records are the primary within the past few years. The re- have no employees, I laid them off and the source of names for juror sum- maining records are then little business that I have will be lost if I moning continues to be widely processed through the National close the store down, what should I do?” believed. Actually, only about Change of Address (NCOA) data- Many times we hear “I don’t have a job, I 10% of our juror database comes base. The NCOA database consists was laid off, I need the time to look for a from voter registration records. of current postal service records. job.” They don’t have the luxury of spar- The primary source of records is Invalid addresses are eliminated ing a week for jury duty.They don’t have the Illinois Department of Motor and address changes are updated. the means to feed their family. They can- Vehicles. DMV records include Following NCOA processing, the not afford gas to come to court every day; holders of Illinois driver’s li- remaining 397,778 records are and gas prices keep going up because censes, state identification cards returned to JSI. From these economists and the press report that the and disabled person’s identifica- records, approximately 40,000 tion cards. are randomly selected and are Continued on page 6 6 The Docket November 2009
Continued from page 5 recession is practically over. While that And now some news may be true for some, it is not the reality for these potential jurors. about changes in our Courthouse
While we try to maintain an understand- Changes in Small Claims: ing approach, even in these hard eco- As a result of a large increase in small claims filings, courtroom assignments for nomic times we must see that peoples’ LM cases will change. Starting November 1, 2009, Judge Betar will be assigned on constitutional rights are honored and that a part-time basis to the Law Division and will hear LM cases on Wednesday,Thurs- justice prevails. I have often said that we day and Friday afternoons in C-150. cannot suspend the constitution for eco- Additionally, Law Division judges will now hear some supplemental proceedings nomic reasons. Judges are usually sensi- for the collection of money judgments. Most supplemental proceedings for the col- tive to jurors’ hardships and jurors are lection of money judgments will continue to be heard in C-306. However, as of No- often excused even though the underlying vember 1, 2009, supplemental proceedings for the collection of money judgments reason may be economic in nature. Judges which are contested or evidentiary will be assigned out of C-306 to the Law Divi- are mindful of the consequences of forc- sion. If the matter originated from a Law Division courtroom and that judge is still ing jury duty in these circumstances. It assigned to the Law Division, it will be reassigned to that judge. If not, it will be ran- may result in choosing a juror that is hate- domly reassigned to a Law Division judge. ful of the system or the litigants, and that juror might take it out on either party, or Thank you for the Help Desk: more likely the plaintiff. Furthermore, ju- And speaking of large increases, most of you have heard about the changes we rors like these may hasten deliberations have instituted to better handle the influx of mortgage foreclosure matters. Judge and rush to verdicts. Nancy Waites is now hearing most mortgage foreclosure matters in the Park City Branch Court and the change has been well-received. The Park City location has Another problem we encounter is when ample parking and seating space and the additional court time supports treating jurors, although employed, do not get paid every matter with the respect it deserves. by their employers when serving on a jury. The Bar responded as well, providing our litigants with a Mortgage Foreclosure In good economic times, the majority of Help Desk. The Desk is staffed with volunteer attorneys who provide general in- employers pay their employees when they formation to a very nervous and vulnerable group of people. The Help Desk vol- serve their civic duty.Lately,however, em- unteers give their presentation at the beginning of the call, which allows most ployers experiencing economic hardship attorneys to conclude their court business before the pro se matters are heard. cannot afford to pay employees that are Judge Waites finds that the anxiety level of the pro se litigants is greatly reduced not on the job and producing. We pay ju- by the Help Desk. On behalf of all of the judges, I would like to thank the Lake rors around $5.00 a day for their service, County Bar Association for this work. It was a large task setting up the Desk, train- which many times the jurors donate back. ing the volunteers, administering the schedule and, of course, showing up at In the past, when we would hear jurors every call to provide this valuable service to the people of Lake County.Well done wanting to be excused from jury service Lake County Bar. because they cannot afford to lose work, we would respond, “so does everybody else.” Now when we hear that, we ask “ I told my family, friends and co-workers the ‘reverse psychology approach’ to disqual- more questions. how lucky we are to live in a country ification): where we are given our day in court, While we do tend to get many excuses treated with respect and dignity and pre- I believe I should be disqualified from from those trying to avoid jury service, sumed innocent until proven guilty be- jury duty because... Barbara Maddox says that this is not true yond reasonable doubt. This experience 10. ‘I am very excited to serve. I took a cou- of everyone. Some write back: was fantastic and I’m very happy I got to ple psychology classes, did a lot of re- be a part of it!” search and wrote several papers on the “I believe I should be disqualified from jury subject of deception detection and poly- service because I am not a U.S. Citizen “Being a part of the jury was a learning graph countermeasures. I think I have (Green Card Holder). P.S. I would love to do experience; I am glad I was able to partic- the ability to determine when someone jury duty.Also, my wife, feels the same. We ipate and realize that only in the United is not being truthful by their speech pat- need to naturalize/become citizens.” States of America justice is determined by terns,breathingpatternsand their body ordinary people. It makes me proud to be language. I think I will be able to deter- “Not sure I would be allowed to serve. I American.” mine if the defendant lies. have a L1 Resident Alien Visa. I would welcome the chance to serve, if possible. Barbara has provided me with some of the 9. ‘I also have a lawyer friend who has We will be on our honeymoon on the best and some of the worst excuses used told me lots about the law. I learned summons date, but anytime after that by jurors. The following are the “Top Ten” from him about ‘jury nullification’. I would be fine.” excuses (Note: #’s 10 & 9 are examples of am excited to know that a jury has November 2009 The Docket 7
veto power! From a 32 year oldWaukegan collector: ‘I don’t /Larry Warner case in Federal Court.’ (A have a driver’s license or a car to get there letter from U.S. District Judge Rebecca R. 8. ‘I can be ‘bought’ by an attractive, and it would be an inconvenience to me.’ Pallmeyer was attached.) clever man regardless of which side they’re on.’ ‘I am responsible to witness surgeries to From a 85 year old Mundelein housewife: ‘I ensure the products I sell function prop- will be 86 in May and I served twice in 7. ‘I would insist on reading the Bible be- erly and patients are not hurt by them.’ 1956’. fore each day’s session.’ ‘I’m an attorney with offices in Chicago; it From a 76 year old Highland Park widow: ‘I 6. ‘I am a newspaper reporter and would would create a hardship for myself & my would love to do my duty as a citizen, but take mental and written notes, even if clients. . .’ I have a medical condition which makes I tried not to.’ me pass out without warning.’ ‘Not available’ 5. ‘I am a recorded former mental pa- ‘Dear Sir, My son (juror’s name) died on tient.’ ‘I believe I will be out of town’ November 4, 2004. He would have been proud to serve.’ 4. ‘My son’s best friend is a Judge’s son.’ ‘Tuesday is my son’s birthday’ Judge Rossetti tells jurors, “we would lis- 3. ‘Relative served as a juror’ ‘I get married on June 16, 2006’ (Sum- ten to your excuses but we don’t promise mons date was March 27, 2006) that they will work.” I followed that by 2. ‘Metapause’ saying, “everyone has the right to be ‘I might be in jail for 30 days’ 1. ‘Rectal Dysfunction’ heard but no one has the right to be taken ‘I am not a willing candidate’ seriously.” And so we go on hearing ex- Som of the worst... cuse after excuse from jurors not wanting From a 51 year old Barrington physician ‘My absence from work would create a se- to serve, but they also should be reminded surgeon: ‘I cannot be impartial toward vere hardship on the remaining associates’ what those people who are willing to serve members of certain backgrounds or per- are saying. Furthermore, they should be suasions. I could never be impartial to in- Some of the best... talking to people who have already served dividuals who don’t share my exact views From a 44 year old Lake Zurich resident: ‘I’m and had gained such an invaluable expe- or beliefs.’ currently a juror on the George Ryan rience being a juror in Lake County.
November 2009 The Docket 9 Domestic Violence and Sexual Assault Cases Civil Law Considerations
I. Most Significant Consideration: In- tim’s case. can be attached. Many times I will get a tentional Act Verses Reckless or Neg- call from a criminal lawyer referral source ligent Act or Omission If there are facts that can be ethically pled who will excitedly tell me that the poten- in a civil complaint that includes multiple tial client was assaulted by a “rich guy” History counts of alternative allegations, such as who lives in a big house, which under- While traditionally most criminal statutes counts for intentional tort plus negligence standably provokes the thought that there require the element of intent, the last three and/or reckless misconduct counts, then will be recovery. decades of legislative history have crimi- the defendant’s insurer is obligated to pro- nalized many vide a defense; and its policy limits are The reality of the world is that the “big “reckless” or available to pay for non-intended tort house” may have very little equity in it, even negligent damages. In this case, the insurance com- the house may be owned by a spouse or a acts or omis- pany will generally file a reservation of trust, or the “adult defendant who is 20 sions. The rights, which should not concern the and lives with his parents in the big criminaliza- plaintiff as long as a non-intentional tort house” does not expose the parents’ assets tion of many can be proven. The key is to thoroughly in- or equity in their house to attachment for domestic ac- vestigate to seek coverage wherever it can the actions of the adult child. Because in- tions which be ethically found. surance most likely will be unavailable, historically these cases are seldom successful. were never II. Intentional Torts – Cases Barring By c o n s i d e r e d Recovery from an Insurance Carrier Scenario No. 2 Scott crimes now due to No Coverage for Intentional Sexual Assault in the Workplace include: child Actions and/or Punitive Damages An employer, or someone who is respon- Gibson neglect, negli- It may be surprising to note that there is a sible for an agent, may be held civilly liable gent supervi- large body of Appellate and Supreme with insurance coverage even for an in- sion of a child, and negligent entrustment Court cases determining on a case-by-case tentional sexual assault or other personal of a dangerous or unsafe object, allowing basis whether a particular set of admissi- injury by an employee or agent. If there a child to then hurt someone. ble facts constitutes an intentional tort. are facts showing that a reasonable per- An intentional tort will not be covered by son or company knew or should have Why is it so Important to Determine an insurance policy. A non-intentional known of the possibility that an employee Whether a Criminal Prosecution Includes tort will be covered pursuant to a com- or agent “might or could” sexually assault an Intentional, Rather than a Negligent or mercial policy, homeowners policy, auto another person, then that negligence by Reckless, Act or Omission? liability policy, etc. the employer may render it liable; and While all of our Tort 101 Classes taught there will be coverage for the action. These us that an intentional action breaching a III. Criminal Sexual Assault Cases In- cases require relatively strong and specific duty that causes injury is compensable, it volving Adult and Juvenile Defen- facts showing that there was notice to the is very unlikely that in the “real world” an dants and Victims employer or person who had an agent act- intentional tortfeasor has the money, in- Scenario No. 1 ing on his behalf, which most typically come, or assets which are available for Sexual Assault - Simple Plaintiff Versus De- would require proof of prior communica- payment of a civil prosecution - even fendant tion, warnings, complaints, deviant ac- when there are egregious facts and signif- The members of the Criminal Law Com- tions, past criminal history, etc., to satisfy icant or astronomical damages. While mittee know far better than I the intricate the notice requirement. there are rare exceptions to this rule, and details of the criminal sexual assault every plaintiff’s personal injury lawyer statutes, which in general and very un- The most typical defense is very obvious - never assumes there are no personal as- derstandably require the element of in- the criminal sexual assault (“intentional sets, the heart-breaking reality is that tent. The simple case of one adult sexually tort”) was done outside the normal more than nine times out of ten an inten- assaulting another adult without any ad- “course or scope of employment or tional tort defendant does not have the fi- ditional facts will most likely not end up agency;” and thus the company or indi- nancial means that warrant the risk, cost, being a civil case that can be pursued, un- vidual who employed the defendant and time of a plaintiff’s personal injury less the criminal defendant has relatively should not be held responsible for the in- specialist to accept the referral of a vic- significant income and/or assets which tentional criminal action. It is important 10 The Docket November 2009 to always consider that it is not a require- In addition, plaintiff’s experts were hired not comply with its own employment vet- ment that actual notice or complaints to show that the amusement park was ting policies and allowed a male cook (who prior to the sexual assault be made, be- negligent in designing its rides for very was the only non-administration male em- cause notice can be proven by other young children in a method which al- ployee) to be alone with the minor girls in a means depending upon the particular lowed the ride operators to be alone, with- kitchen with closed doors, walk-in pantries facts of the case. It will be incumbent out any visual observation by parents or and refrigerators, and no other supervi- upon the plaintiff’s personal injury lawyer other park employees, for periods of time sion. These facts were strong enough to to investigate the policies, procedures, su- when putting the children into the ride support a successful resolution against the pervision, actions, inspections, employ- and securing their safety belts. institution for not properly carrying out its ment vetting processes, and the own policies and procedures or supervising implementation of all of the above, to de- In sum, there was no question that the its employee. It was a “reasonable proba- termine whether the employer was negli- sexual assaults were intentional actions; bility” which should have been foreseen gent. but we were able to prevail by showing that an assault could take place due to that the negligent supervision of the em- there not being observation, supervision, As an anecdotal personal example, I rep- ployee, even without actual employer or periodic inspection of the cook and the resented one of three minor girls who knowledge, proved the case against the individual girls who were helping him pre- were sexually fondled for less than a corporate employer. pare meals in the closed kitchen. minute at a time on three separate occa- sions over two and a half months at a Scenario No. 3 Scenario No. 4 major amusement park. There was no ac- Schools, Daycare Centers, Juvenile Centers, Sexual Assault by a Minor tual notice to the employer of any of these Afterschool Sports Facilities, Etc. actions, and no complaints were made by Holding the Parent Responsible for Negli- When are They Liable for Sexual Assault by a gent Supervision (Also see Section V below) the first two girls until the third girl’s Nonemployee? mother called the police. There was no The same principles apply in a In a scenario where a minor is under the parent/child scenario; however, if it can physical evidence or witnesses to any of care or control of an institution or an- be shown that a parent knew or with rea- the actions, and the three girls were all other designated individual, such as a sonable probability suspected that there under the age of eight. daycare provider, afterschool drop-in cen- was danger that his or her child “might or ter, etc., the same duty,breach of duty and We were able to prevail and secure a large could” sexually assault another, especially fact considerations that exist with an em- settlement on behalf of our clients by in a babysitting-type situation, then the showing that the amusement park corpo- ployer or someone who has an agent working on his or her behalf exist. parent’s homeowners’ coverage will pro- ration failed to carry out its own policies vide liability payment up to the proven and procedures in vetting the defendant For instance, anecdotally,in another case, damages. amusement park ride operator and failed I was able to prevail when I showed that to check his references. Extensive motion two minor girls who had been institution- The easy case would be when a parent has practice produced discovery showing that alized by the Juvenile Court in a care facil- actual knowledge of a sexual assault by the operator had been fired from a differ- ity for drug addiction and who were his child and then allows his child to su- ent amusement park within the same cor- sexually assaulted by a male cook in that pervise or be with other children, or even porate umbrella, in a different state, for an institution ,could prove in a civil claim for adults, when they are alone or without allegation of sexual misconduct involving negligence that the institution had not observation in a setting that would lend it- a young child. Due to the failure to ade- properly supervised the cook. self to a sexual assault. quately vet his employment application, this information was not known by the de- Likewise, in that case, there was no prior What is more common is that when a fendant employer. warning or notice; but the institution did child expresses some deviant behavior and November 2009 The Docket 11 his parent then acts upon natural What happens when a criminal defendant by his or her spouse or sexual partner? If parental concern by seeking counseling, is angry with his wife and throws a vase the defendant transmitting the disease school or community services, theological at her head, but mistakenly misses her had actual knowledge that he or she had help, etc., and the deviance or potential vi- and hits his own child? The good news is the disease, knew it was contagious, and olence of the child is then known, or at that, regarding the theoretical ability to failed to inform his or her partner, that least suspected even though there is no pursue a case, the scenario falls under the constitutes an intentional tort and will proven prior sexual assault. If the facts are category of “an unintended result of an not be covered by insurance coverage. In strong enough, negligent supervision may intentional act,” which can be actionable that type of situation, assuming that there be proved. Each of those types of cases has as negligence. is a divorce or some other division of prop- to be evaluated very closely on the specific erty, I usually then defer to the family law provable facts in order to determine However, there are immunities for actions attorney to take that into consideration whether there is enough evidence to hold between spouses and parents/children regarding the division of marital assets; a parent liable under such a scenario. such that a negligence action may not be however, there are the rare exceptions possible. The “Catch 22” is that if there is when an actionable case exists and insur- Scenario No. 5 negligence by a parent that harms the ance coverage is available. One Adult Has Knowledge of Another parent’s child, there is immunity; and Adult’s Possibility of Sexually Assaulting there is no action. The flipside of the coin For instance, I represented a lady who had Someone is that if there is intentional abuse by the been dating her partner for a substantial parent of his or her own child, there could number of years and who discovered that Can the First Adult be Held Liable? be an action that could be proven in a she had contracted a STD. She swore Simply stated, almost always, the answer courtroom; but there will not be any in- under oath that she had not had any is no. There is no duty for one adult in a surance coverage. other sexual partners. Her partner swore purely knowledge situation, without an under oath that he did have additional employer/employee relationship, parent If the above scenario results in an injury sexual partners in the recent past before relationship, etc., to take action, call the to anyone who is not the criminal defen- she contracted the STD, but that he had police, or even warn anyone of an inde- dant/tortfeasor’s child or spouse, such as not been diagnosed with any STD and had pendent person’s proclivities or a person’s a brother, sister, parent, grandparent, no knowledge of it himself. While those suspicion about someone else’s potential to neighbor, or friend who is visiting the facts could be pretty shaky and open to carry out a sexual assault. While it may be house, etc., then there would not be any substantial dispute, impeachment, and ul- moral to take action, and we hope all indi- immunity; and therefore, under certain timately may be unbelievable by a jury in viduals in good conscience take reasonable facts, negligence could be proven and cov- a particular case, we were able to secure actions to try to stop potential future sex- erage would be available. insurance coverage. We showed that the ual assault, there is no breach of duty if man did not intentionally infect the plain- Scenario No. 2 someone does not do so, unless there are tiff because he had no knowledge that he Is a Victim of Domestic Violence by a Spouse other facts showing an actual duty. had the disease, but that he was negligent Totally Helpless Regarding any Civil Action in that he had unprotected sex with other IV.Domestic Violence – for Personal Injuries? partners and had not informed the plain- Actionable Civil Claims Obviously,such a victim is entitled to com- tiff of the possibility that he had himself The same rules apply in domestic violence pensation pursuant to criminal restitution become infected and transferred that STD cases as they do in sexual assault cases re- statutes and criminal victim statutes. Re- to the plaintiff. garding intentional versus non-inten- gardless of the theoretical model that may tional actions and the supervisory exist in order to try to avoid immunities, In that particular case, due to the accessi- requirements of employers, etc. However, the reality of the situation is that in those bility of insurance coverage, it was appro- there are subtle differences to various do- scenarios the most common way to pre- priate for my client to file a personal injury mestic violence scenarios, which can pro- vail is through a divorce proceeding. I can- lawsuit against her partner. We were able vide the factual basis for a negligence or not give advice on family law, but it is my to prevail and win the case with payment reckless misconduct civil case that can be experience when I get those types of by the insurance carrier directly to my successfully pursued and resolved by a phone calls that I usually speak with the client. trial verdict or settlement for money dam- divorce attorney who can then use the ages in the courts of civil justice; and in- facts of any domestic violence in assessing An even more subtle fact scenario is when surance coverage exists. the division of property and the custody one partner knows she has a STD and of any minor children. The actual likeli- doesn’t tell her other partner but attempts Scenario No. 1 hood of one spouse suing another spouse to take precautions that are inadequate. Defendant Intends to Hurt One Person and and prevailing for personal injury dam- That case may be included under the Mistakenly Hurts a Second Person ages is extremely low. “negligence tort definition,” thus allowing Criminal lawyers know very well the high for insurance coverage. emotions, passions, and mixture of alcohol Scenario No. 3 and/or drugs that exist in virtually every Sexually Transmitted Disease by a Spouse or Scenario No. 4 domestic violence case, whether it involves Partner Domestic Violence Outside the Home that Oc- married couples, adults, children, or the What happens when one spouse is in- curs at a Commercial Establishment, Munic- care of elderly or handicapped relatives. fected with a sexually transmitted disease ipality, Park, Place of Employment, etc. 12 The Docket November 2009
Could it be Actionable Versus the Landowner, ing such an object and then that the child object, being the boomerang, by giving it Business Owner, or Municipality? used the object to injure another person. to his ten-year-old son. He was also guilty The same rules regarding notice must be of negligent supervision in simply giving it The unique nature of these two types of proven in order to pursue a civil case for to him, allowing him to play with it in the domestic violence outside the home. For actions is that they are both covered under backyard without any training or super- instance, there is generally no duty owed homeowner policies. Thus, an intentional by a commercial landowner, business action of a child, for instance, can still be vision; and the ultimate tragedy thus oc- owner, municipality, etc. concerning do- actionable as negligence against the par- curred. While there was no malicious mestic violence that occurs on their prop- ent for negligent supervision or negligent intent and there were feelings by the de- erty or in their place of employment, etc. entrustment. fendant of great regret, the defendant’s in- surance carrier paid its policy limit after Another real-life example is a case that I The exception would exist if there is no- closely investigating the facts, following tice of prior domestic violence or threats was able to prevail on representing a extensive discovery, and concluding that of domestic violence, which most typically lovely ten-year-old girl who was the victim would involve one or both of a company’s of a combination of negligent supervision there was no just defense. employees. If the domestic violence then and negligent entrustment by the father VI. Conclusion occurs on the employer’s property, park- of another ten-year-old child who was a ing lot, etc., and there is sufficient prior next-door neighbor. As an example of It almost goes without saying that the pos- notice, then an employer or municipality how unique some of these facts actually sible factual scenarios that may occur at could be held liable. These types of cases are - in this case, my plaintiff was walking any given moment in a particular time rarely are actionable and really require down the sidewalk outside the fence of her and place are beyond any one person’s strong and specifically unique facts to be neighbor’s home with the intent of going imagination. While typically a criminal proven in order to go forward with a per- to that neighbor’s home to tell her brother defense attorney represents the accused in sonal injury case. who was playing in the neighbor’s back- a particular domestic violence or sexual yard to come home for dinner. As she was assault case, by the nature of these types V.Neglicent Supervision/Negligent En- walking down the sidewalk on the correct trustment by a Parent Who Is Liable side of the fence, she had no forewarning of criminal prosecutions, the victim is of- for the Actions of His or Her Child that the next-door neighbor’s ten-year-old tentimes a spouse, child, coworker, friend, “Negligent supervision” and “Negligent child was in the backyard with her neighbor, or relative. It is not uncommon entrustment” are oftentimes casually used brother with a boomerang and without for a referral to come from another crimi- synonymously, which is patently incor- any adult supervision. nal attorney who may be contacted on be- rect. Negligent supervision requires proof half of a victim, most oftentimes to that a parent had knowledge of a particu- The next-door neighbor’s father was counsel the victim regarding victims’ lar situation, the time and ability to su- home and had bought his son a plastic pervise a particular situation, and failed Australian boomerang. The father gave it rights and compensation pursuant to the to carry out reasonable precautions to him, said go play with it in the yard, and restitution and criminal victims’ restitu- and/or safety training/ instructions for his then went inside the house without giving tion statutes. or her child. “Negligent entrustment re- him any instruction. The ten-year-old boy quires proof that a parent knew, or rea- naturally began playing with the Each attorney should keep in mind that in sonably should have known, that his or boomerang; and as he threw it, it flew referring out any potential victim of do- her child had in his or her possession a over the fence slicing through the air and mestic violence, sexual assault, workplace dangerous object, instrumentality, wea- cutting directly into the eyeball of my ten- assault, child abuse, neighborhood fights, pon, or some other material item under year-old client. etc., it is always worth investigating circumstances that would lead a reason- whether there is a potential civil claim The factual probability of that happening able person to stop the child from possess- that can be compensable under available has to be astronomi- cal; but the result insurance coverage. Every case warrants was that my client a proper investigation, at no cost to the had to be rushed to victim/client, by a plaintiff’s personal in- Northwestern Uni- jury specialist to make an informed deter- versity Medical Cen- mination as to whether there is a ter for major eye compensable civil case on behalf of your surgery to save her client - the victim. eyeball, with perma- nent destruction to Since leaving the Lake County State’s Attor- about half of her ney Prosecutors’ Office in 1987, Scott Gib- eyesight in one eye. We were able to son has and continues to exclusively represent prove that the father individuals and families who have been in- negligently en- jured by an individual, company, corporation, trusted a dangerous and public or government organizations. November 2009 The Docket 13 An Overview: Lake County Domestic Violence Court ourts dealing with domestic vio- gravated Domestic Battery is defined under Dist. 2004), held that the proportionate lence perform a difficult dance as 720 ILCS 5/12-3.3 as a domestic battery penalties clause of the Illinois Constitu- Cthey delve into the homes and lives which causes great bodily harm, or per- tion [Article I, Section 11 which states, “All of families often in crisis. As criminal manent disability or disfigurement to the penalties shall be determined both ac- courts, the rights of the defendant are victim. cording to the seriousness of the offense protected by the constitutions of the and with the objective of restoring the of- United States A “family or household member” is de- fender to useful citizenship”] was not vio- and the State fined in 725 ILCS 5/112A-3(3) and in- lated by the difference in penalties of Illinois, but cludes spouses, former spouses, parents, between Battery and Domestic Battery de- those same children, stepchildren and other persons spite the apparent similarity of the two of- courts are related by blood or by present or prior fenses. given the re- marriage, persons who share or formerly sponsibility of shared a common dwelling, persons who A first Domestic Battery conviction is a attempting to have or allegedly have a child in common, Class A misdemeanor, punishable by up to prevent fur- persons who share or allegedly share a one year in jail, a fine of $2,500.00 or ther harm to blood relationship through a child, per- both. Practically speaking, Probation or victims. The sons who have or have had a dating or en- Conditional Discharge will usually be im- By idea of a dedi- gagement relationship, persons with posed with a condition of domestic vio- Steven cated domestic disabilities and their personal assistants, lence treatment (a 26 week-long program violence court and caregivers as defined in paragraph (3) in Illinois), a fine, court costs, and other McCollum was created in of subsection (b) of Section 12-21 of the conditions to ensure the safety of the vic- response to Criminal Code of 1961. For purposes of tim. A Domestic Battery can be charged several high profile domestic murder this paragraph, neither a casual acquain- as a Class 4 Felony punishable by 1 to 3 cases. At the same time, the Lake County tanceship nor ordinary fraternization be- years in the Department of Corrections if State’s Attorney created the Domestic Vi- tween 2 individuals in business or social the defendant has a prior Domestic Bat- olence Council with members from the contexts shall be deemed to constitute a tery or any of twenty-one other enumer- State’s Attorney’s Office, A Safe Place (a dating relationship. People v.Young, 362 ated offenses [see 720 ILCS 5/12-3.2(b)]. shelter and counseling center for victims Ill.App.3d 843, 840 N.E.2d 825 (2nd Dist. There is a mandatory minimum sentence of domestic abuse), the courts, and vari- 2005), stated that a man and woman of 3 days in jail for this offense. A person ous area police departments. This Coun- who had stayed at a homeless shelter to- who commits a felony Domestic Battery in cil promulgated procedures to be followed gether and had apparently been intimate the presence of a child (under 18 years of by the police and the State’s Attorney’s of- were not “family or household members” age) must either serve 10 days in jail or fice for all domestic criminal cases. as defined by the statute. While the defini- perform 300 hours of public service, and tion is broad, People v. Wilson, 214 Ill.2d pay for the costs of counseling for the The Chief Judge designated courtroom C- 394, 827 N.E.2d 416 (2005) has held child. Aggravated Domestic Battery is a 221 for misdemeanor domestic violence that the definition of “family and house- Class 2 Felony punishable by a sentence cases and petitions for orders of protection. hold members” does not violate the due of 3 to 7 years in prison, or an extended process clause as being too vague despite term sentence of 7 to 14 years. It has a Domestic Battery, Defined its failure to place any time limit on how minimum mandatory jail sentence of 60 The crime of Domestic Battery is defined old a previous relationship could be. consecutive days. under 720 ILCS 5/12-3.2 as any action done intentionally or knowingly without Domestic Battery: Penalties In Lake County, the State will sometimes legal justification by any means which Court Supervision is not available for per- negotiate to reduce a first offense of Do- causes bodily harm to any family or sons found guilty of Domestic Battery.See mestic Battery to simple Battery with a household member. Domestic battery is 730 ILCS 5/5-6-1(c). This means that any sentence of Court Supervision. While also charged as the defendant making person who pleads guilty or is found court supervision means that the defen- physical contact of an insulting or pro- guilty of this offense must receive a con- dant does not receive a conviction for the voking nature (as opposed to causing bod- viction on his or her record. That convic- offense, practitioners must be aware that ily harm) with any family or household tion cannot be expunged. People v. Pickens, this may not satisfy the Immigration and member. The more serious offense of Ag- 354 Ill.App.3d 904, 822 N.E.2d 58 (1st Naturalization Service. The INS can and 14 The Docket November 2009 often does view court supervision on a of age and the Court affirmed the trial even when the petition for the order of battery,under certain circumstances, as a court’s refusal to give the tendered jury in- protection is brought by the State, does crime of violence which will result in de- struction. In Order of Protection cases, not preclude the State from proceeding on portation or denial of citizenship. the Illinois Domestic Violence Act of 1986 the underlying Domestic Battery case. See defines “abuse” as physical abuse, harass- People v. Wouk, 317 Ill.App.3d 33, 739 In addition to the explicit penalties of a do- ment, or intimidation of a child and ex- N.E.2d 64 (1st Dist. 2000), which held mestic violence conviction, there are plicitly excludes reasonable direction of a that when an Order of Protection prose- other, secondary considerations which de- child by a parent. See 750 ILCS 60/103 cuted by the State was denied due to a fense practitioners and their clients (1). finding that the victim was not credible, should consider when faced with a case in the State could still prosecute the defen- Courtroom 221, Lake County’s Domestic Evidence in Domestic Battery Cases dant for Domestic Battery on the same fac- Violence Court. Hunters, gun collectors, Generally, the State will need the victim tual situation. Collateral Estoppel did not police officers or military service members present to prosecute the case. In the Lake apply. should consider the effect this case will County Domestic Violence Court the State have on their “right to bear arms.” Pur- will attempt to subpoena the victim. If 720 ILCS 5/115-7.4 states that, in a do- suant to 430 ILCS 65/8, a firearm owner they fail and the victim is not present for mestic violence case, evidence of the de- may see his Firearm Owners Identification the first trial date, the State will move for a fendant’s commission of another Card revoked or denied. For this to happen continuance and the Judge will generally domestic violence offense is admissible it is not necessary that a firearm have give them one. If they do not have the vic- against the defendant. Note that the been used in the underlying offense. Rev- tim present on the second trial date, gen- statute does not require that there has ocation and/or denial of an F.O.I.D. card erally a motion for another continuance been a finding of guilt on the prior con- also applies to the offense of Unlawful Vi- will not be granted and the case will be duct to be admitted. This statute requires olation of an Order of Protection, but only dismissed. the State to give advance notice of the use if a firearm was used in the commission of of this testimony, and for the Court to de- the offense. As noted above, domestic vio- Courts have ruled both for and against the termine its admissibility based upon vari- lence cases can result in the deportation use of out-of-court statements of the vic- ous factors including proximity in time, or denial of citizenship and/or legal status tim under the excited utterance exception factual similarity, and “other relevant for non-citizens. Also, some employers to the hearsay rule. In People v. Victors, facts and circumstances.” The statute may take action to terminate employment 353 Ill.App.3d 801, 819 N.E.2d 311 (2nd seems to allow testimony that would oth- (e.g., schools, child care providers and Dist. 2004), the victim’s statements to a erwise be barred, but no cases have been some corporate entities). Finally,contrary police officer could not be admitted as an decided concerning its use and constitu- to commonly held beliefs among some excited utterance since it was not shown tionality. Generally, evidence of other criminal practitioners, neither a prior Do- that the victim did not have time to fabri- crimes offered to prove the propensity to mestic Battery nor a pending Order of cate the statements. People v. Robinson, commit an offense is not admissible, and Protection should effect “good time” credit 883 N.E.2d 529 (2nd Dist. 2008), held can only be admitted under very limited to persons sentenced to prison – see How- that the statement of the victim could be circumstances (e.g., to prove identity, ell v. Snyder, 326 Ill.App.3d 450, 760 admitted as an excited utterance and modus operandi, etc.). In actual practice, N.E.2d 1009, Ill.App. 4 Dist., 2001, could be the basis to prove the offense. The this rule has seen very limited use since it wherein a mandamus was issued to stop Court found under the particular facts became effective on August 23, 2007. a prison official from denying good time that the victim had no time to fabricate credit. the statement. If called to testify, the po- Pursuant to the statute, evidence of other lice officer should not be allowed to give offenses may be offered by “specific in- Domestic Battery & Orders of his opinion concerning whether the de- stances of conduct, testimony as to repu- Protection Involving Children fendant committed Domestic Battery. See tation, or testimony in the form of an There is a common law defense to a People v. Crump, 319 Ill.App.3d 538, 745 expert opinion.” However, this reputation charge of Domestic Battery when the vic- N.E.2d 692 (3rd Dist. 2001), where the testimony can only be admitted if the de- tim is the defendant’s child and the defen- State elicited a positive response from a po- fense first puts the reputation of the de- dant was administering reasonable lice officer that he had reason to believe fendant at issue through its own case. parental discipline. People v. Roberts, 351 the defendant committed the offense of Ill.App.3d 684, 814 N.E.2d 174 (4th Dist. Domestic Battery.The Court found this to 725 ILCS 5/115-10.2 (often referred to as 2004), held that the Court should have be reversible error. the “residual hearsay exception”) pur- given a non-pattern jury instruction stat- ports to allow out-of-court statements of a ing “Aparent is legally justified in using It is improper for the State in a domestic witness (victim) in a domestic violence reasonable force when necessary as part battery trial to use statements of the al- prosecution when the witness is unavail- of reasonable discipline of a child.” The leged victim in a verified Petition for Order able. Since Crawford v. Washington, 541 jury instruction and the common law de- of Protection during cross-examination of U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 fense is not available if the child involved is the defendant. See People v. Thompson, 349 (2004) was decided, People v. Bueno, 829 18 years of age or older. In People v. Mul- Ill.App.3d 587, 812 N.E.2d 516 (1st Dist. N.E.2d 402 (2nd Dist. 2005) has given a vey, 366 Ill.App.3d 701, 853 N.E.2d 68 2004). However, a finding for the Respon- strict “term of art” definition to “unavail- (2nd Dist. 2006), the victim was 18 years dent in an order of protection hearing, ability” pursuant to 115-10.2(c). A care-
16 The Docket November 2009
ful reading of Bueno suggests that Craw- a basis for contempt of court. jail, a fine of $2,500.00 or both. Court Su- ford compels the victim testify before being pervision (non-conviction), conditional considered “unavailable.” People v. Barwicki, 365 Ill.App.3d 398, discharge, and probation, each for up to 849 N.E.2d 462 (2nd Dist. 2006), held two years, are possible dispositions. A vio- Violation of an Order of Protection that a charge of Unlawful Violation of lation of Unlawful Violation of Order of The offense of Unlawful Violation of Order Order of Protection cannot stand if the Protection becomes a Class 4 Felony if the of Protection is defined by 720 ILCS 5/12- underlying order of protection is vacated. defendant has previously been convicted 30, which states that “a person commits vi- At hearing, a Respondent’s silence can be of that offense or Domestic Battery,or has olation of an order of protection if he or held against him. People v. Houar, 365 a conviction of a any of 22 enumerated she commits an act which was prohibited Ill.App.3d 682, 850 N.E.2d 327 )2nd Dist. offenses involving a family member. The or fails to commit an act which was ordered 2006), held that if the Respondent in an penalty for felony Unlawful Violation of in an order of protection issued under the order of protection hearing refuses to tes- Order of Protection is from 1 to 3 years in Illinois Domestic Violence Act in Illinois or tify pursuant to the 5th Amendment prison, with a minimum sentence of 24 any similar act in another state. Knowledge under the Domestic Violence Act, a nega- hours of incarceration. of the contents of the order is essential to tive inference may be drawn against the charge and a violation can only be him/her. However Houar found, on its par- Domestic Violence, Juvenile Court charged after the offender has been served ticular facts, that despite this rule that the & DCFS notice of the contents of the order or oth- Respondent’s invocation of the right to re- Even if the alleged crime did not involve erwise has acquired actual knowledge of main silent could not be used against him the children in the home at all, a Domestic the contents of the order. to prove the allegations of the petition be- Battery between parents can still result in cause there was an absence of “probative the Department of Children & Family It is not a crime of Violation of Order of evidence” to prove the allegations in the Protection to violate a provision of a do- Services (DCFS) making an indicated find- petition. The facts of that case involved a ing of neglect or abuse under their “envi- mestic violence order of protection which father accused of hitting his child. orders a remedy other than the remedies ronment injurious to the welfare of the delineated in the Violation of Order of A first offense of Unlawful Violation of child” standard. Such a finding can pre- Protection statute (e.g., return property Order of Protection is a Class A Misde- vent a person from working as a teacher etc.). However, such a violation can still be meanor, punishable by up to one year in or in other child care professions. Such a November 2009 The Docket 17 finding could also result in the removal of arrangements of families. Juvenile Court separation or divorce. It can be difficult to the children from the home in some cir- will also often establish detailed and re- discern the serious cases from those initi- cumstances. strictive visitation rules, often conditioned ated for frivolous or non-legal reasons. upon treatment or other social services. There can be a finding of neglect in Juve- Attorneys working with domestic vio- When the case does proceed, it can have nile Court against the mother of a child lence cases will be well advised to keep in longstanding and extremely deleterious when there is Domestic Violence by the fa- mind that involvement of other courts be- affects on the defendant’s ability to pay ther and she does not take action. See In yond C221 can have profound implica- his/her obligations as well as on the struc- Re K.R., 356 Ill.App.3d 517, 827 N.E.2d tions. ture of a family. It is essential for practi- 535(3rd Dist. 2005), wherein the Court tioners (both prosecution and defense) to affirmed a finding of neglect and removal Conclusion conduct a careful and a critical review of of the children against a mother who re- While many cases in Domestic Violence the case, and the possible affects of a find- united with a father who had abused her Court are dismissed without ever coming ing of guilt, before proceeding to trial or and her children. to trial, there are always those cases seeking a conviction. which do get tried. Often the ones that While adult court criminal cases will only proceed to trial are not the serious cases, Steve McCollum is a criminal defense lawyer order that the defendant either do or re- but may be the ones with the most in- in Waukegan with over 29 years of trial ex- frain from doing certain things or reside tractable parties (both attorneys and de- perience prosecuting and defending criminal in certain locations, cases in Juvenile fendant/victims). It is an unfortunate cases, including felony, misdemeanor,juvenile Court can be far more intrusive into the truth that domestic violence charges and, delinquency, DUI, and traffic cases. Prior to family. Juvenile Court cases will often as a result, the Domestic Violence Court is entering private practice Steve was the Chief make determinations which affect the sometimes used by parties to gain an ad- Deputy State’s Attorney for the Lake County custody of children and the living vantage either in their relationship or in a State’s Attorney’s Office.
All Lake County Bar Association members are invited to our annual Holiday Party Thursday, December 17, 2009
5:00 p.m. Gorton Community Center 400 East Illinois Road • Lake Forest RSVP [email protected] Scott B. Gibson is pleased to announce that Lindsay D. Varcoe is now an Associate with the firm.
The firm will continue to practice exclusively on behalf of plaintiffs in personal injury, medical negligence, professional negligence, product liability, and workers’ compensation.
GIBSON & ASSOCIATES, LTD. 415 W. Washington Street Suite 103 Waukegan, IL 60085 Telephone: 847/263-5100 Facsimile: 847/360-9100 E-Mail: [email protected] Website: www.gibsonlaw.us
CHICAGO OFFICE 20 S. Clark St., Suite 700 Chicago, IL 60603 November 2009 The Docket 19
Domestic Violence Panel: Practical & Ethical Considerations in a Domestic Violence Prosecution n September 16, 2009, the Crim- to meet before being accepted as a court- The Assistant State’s Attorneys assigned inal Law Committee of the LCBA approved domestic violence evaluator or to the DV courts do not approach their Okicked off a two-day seminar ded- treatment provider.These standards have task with tunnel vision. Stella recounted icated to issues in Domestic Violence always been more rigorous than those the process whereby each Assistant en- cases. More than seventy-five lawyers & suggested by the State of Illinois, and have sures that charges which do not involve judges traveled to Milwaukee to consider been a primary reason why there has domestic violence are not overlooked. She and discuss the various factors involved in been a high quality of domestic violence also explained the responsibility which both defend- intervention treatment in Lake County. her office has towards each victim, ensur- ing and prose- ing that a firm point of contact is estab- cuting cases of Noting that the State’s Attorney’s Office lished with that victim, to monitor domestic vio- screens between 300 and 500 alleged do- whether the conditions of the defendant’s lence. mestic violence cases each month, and bond are being satisfied, and that the vic- that, of those cases, 90% of the victims tim remains safe. Our first panel will ultimately seek to have the case addressed the dropped, Carrie detailed how she assists While it is not uncommon for victims to criminal case her office in preparing an evidence based contact the State’s Attorney’s Office re- in Domestic case which is not driven by the victim, but questing that bond orders of “no contact” V i o l e n c e rather by the evidence gathered by the po- be changed to “no violent or harassing By Court from lice and other first-responders. Toward contact,” Stella explained that it is never i n i t i a t i o n this end, police officers in Lake County that simple. Constantly alert to possible Keith through con- complete detailed risk assessment tools cases of intimidation or victim fears, the Grant clusion. Our which track various factors indicating se- State’s Attorney’s Office will conduct de- first speaker, riousness and frequency of cases linked to tailed interviews with victims and wit- Carrie Flanigan, was an experienced vic- location, victim and offender identity.She nesses before agreeing to such tims’ advocate for the State’s Attorney’s also coordinates a system of notification modifications, in order to ensure the re- Office, and a long-time member of the Do- designed to maintain lines of communi- quest is not motivated by the victim’s fear mestic Violence Coordinating Council of cation between the State’s Attorney’s Of- of the defendant. Lake County.She introduced her audience fice and victims. She noted that all of to the DV Council, which focuses its efforts these efforts greatly assist the State’s At- In determining the prosecutorial re- on the court’s and “justice” stake-holders torney’s Office in weeding out cases which sponse, Stella will ensure that each case is efforts in response to domestic violence. are inappropriate for prosecution, and considered in its entirety. This means en- This is in contrast to the Domestic Vio- seeking appropriate resolution of those suring that the defendant’s priors are es- lence Council, which focuses more on the that are. tablished and, if there are any, that the issues faced by treatment providers in identity of the prior victims is determined. Lake County. Chaired by Lake County The process of assessing and prosecuting While prosecution and resolution of do- State’s Attorney, Michael Waller, the Co- a criminal case of domestic violence was mestice violence prosecutions is increas- ordinating Council has actively sought further detailed by our second panel ingly controlled by statute, where federal funding, and has caused over member, Assistant State’s Attorney Stella discretion lies with the Assistant State’s $50,000 in federal grant funds to be dis- Veytsel, who practices daily in the domes- Attorney, factors such as level of injury bursed among the courts and treatment tic violence courts. Stella explained the and the desires of the victim are consid- providers. screening process employed by the State’s ered along with the input of domestic vi- Attorney’s Office. She noted that the goal olence care providers who conduct Carrie detailed the history of Lake of screening is to both cull out those oc- treatment and risk assessments for the County’s proactive response to domestic currences, which are not criminal of- court. Stella identified some of the ethical violence, noting that Judge Victoria Ros- fenses, and to ensure that the maximum dilemmas, which can confront prosecu- setti long ago chaired a Standards and information possible is gathered for pres- tors in domestic violence cases, where Credentials sub-committee which, with entation to the prosecuting attorney. To- today’s offender may well be yesterday’s the cooperation of the State’s Attorney, ward this end, Stella detailed some of the victim, and where tomorrow’s victim may Public Defender and the treatment forms and checklists, which are prepared be an offender represented by counsel but providers, created a detailed set of re- by police officers and Assistant State’s At- with whom the State will need to com- quirements which every provider needed torneys as cases present themselves. municate on the newer case. Finally,Stella 20 The Docket November 2009 and her fellow Assistant State’s Attorneys other’s clients. On the other hand, others see the victim further harmed. He ex- remain receptive to input from defense expressed their right to speak with the vic- plained how the courts use the Pre-trial counsel in domestic violence courts, and tim without giving anyone notice. Cour- Bond Services report as an effective tool to consider that input along with everything tesy aside, Rule 4.2 of the Rules of assess risk and to attempt to assure safety. else they receive. Professional Conduct only precludes con- While some defense practitioners in the tact with a represented party “on the sub- Next, Criminal Law Committee Co-Chair ject of the representation”. As Steve is audience strongly argued that defendants and longtime criminal law practitioner seeking to discuss not the divorce, but the are presumed innocent, it was ultimately Steve McCollum presented a series of eth- victim’s claim of domestic battery, he is agreed that setting bond in any criminal ical considerations, which, while not ex- free to communicate with her without no- case requires a delicate balance between clusive to domestic cases, are certainly tifying her attorney. considering the safety of victims, ensur- most prevalent in that arena. These prob- ing the return of the defendant to court, lems can present themselves literally the In domestic violence cases, recantations moment the defendant/client walks by victims are frequently an issue. Steve and the need to set reasonable bonds through the attorney’s door. next pondered the ethical considerations which are not oppressive. 725 ILCS presented by a victim’s recantation. As a 5/110-5.1 sets forth a detailed set of con- In his first hypothetical, Steve considered former prosecutor, Steve first noted that a siderations, which the court should con- a client who arrives at the office with the recantation will require certain actions sider. The defendant’s history (if any) of alleged victim and a copy of his bond when received by the Assistant State’s At- domestic violence; his mental health; his sheet, which orders no contact with that torney on the case. Steve and Stella Veyt- history of any violations of court orders same victim. After some discussion, it was sel agreed that such statements often generally agreed that Steve must advise require a critical eye by the prosecution, (here Judge Waldeck noted that this could the victim and defendant that they cannot because, as previously discussed, they include previous bond violations but also be together and should not permit them to maybe motivated by fear, economic inter- probation or any other court order); both remain at his office. The bond order ests (keeping the “bread-winner” em- whether the defendant is a threat to any- only controls the actions of the defendant ployed), or even by an honest change of one; whether he has access to weapons, or and it is to the defendant to whom Steve heart. Under many of those conditions, a history of weapons use; any history of (the attorney) owes a duty.Therefore, the the recantation may or may not be truth- alcohol or substance abuse; the serious- attorney must advise the defendant of the ful. It was agreed that, while the prosecu- ness of the current charge; whether the importance of compliance with the tor need not choose to believe the court’s orders. The question then turned recantation, he or she is required to ten- victim & defendant are separated; any to Steve’s choice to speak with the victim der that statement to the defense under controlling behavior by the defendant to- at all. It was agreed that nothing would SCR 412(a)(i) (statements of witnesses) wards the victim; suicidal or homicidal prevent him from speaking to the victim and 412(c) (evidence which tends to statements (if any) from the defendant; in this or any other case, and that effective negate the guilt of the defendant). Under and any other information available in the assistance of counsel requirements may those rules, the prosecutor’s opinion as to reports. compel him to seek her input. In speaking the veracity of the recantation is not at to the victim or any other third-party, issue. As to whether the State can or Judge Waldeck noted that bond conditions every attorney must recall that Rule 4.1 should charge a recanting victim if the in domestic violence cases can be an ef- of the Illinois Supreme Court Rules of Pro- prosecutor believes she is (or was) lying, fective short-term control over the actions fessional Conduct requires that, whatever the discussion again revolved around two Steve does say to the victim, it must be different issues. One was the practical dif- of the defendant, and may provide imme- truthful, and an accurate reflection of Illi- ficulty of proving a case of false police re- diate safety and security for the victim. He nois law. port or perjury, while the other was the and the audience agreed that, ultimately human cost of initiating criminal charges domestic violence cases require a deeper Steve next considered the scenario where against a possibly battered woman. It was and more encompassing approach. He he does choose to speak with the victim agreed that the State has the authority noted that concerted intervention by the who immediately tells him that she is rep- and should, in some instances, initiate criminal courts, family courts, treatment resented by counsel in a divorce proceed- charges. There may be other occasions providers and social service agencies is re- ing against the defendant. She is willing to where proof issues as well as the need to speak with Steve. The question: may he provide social services to the victim quired in order to reduce the risk of do- speak with her, knowing that she’s repre- should militate against criminal charges. mestic violence. sented by counsel? Must he notify her counsel before attempting to speak with Judge Joseph Waldeck next addressed the Keith Grant is the Lake County Public De- her? There was immediately a split of audience. Echoing the statements of the fender’s Chief of Special Defense & Profes- opinion among the responding members previous speakers, he also noted the sional Development. A criminal trial attorney of the audience. Many took a practical ap- unique perspective of the trial court judge with 20 years experience and a certified lead proach, noting that the nature of practice in a domestic violence case. He addressed in Lake County courts will often compel the specter of escalating domestic vio- counsel in the Illinois Capital Litigation Trail practitioners to give one another a lence, and the possibility that a judge Bar, he is also c-chair of the LCBA Criminal “heads-up” when they speak to one an- might release a defendant on bond only to Law Committee. November 2009 The Docket 21 Victims of Domestic Violence as Witnessed Firsthand in a Hospital rom March 2001 to January 2004, victim from working outside the home, world to look into her private pain. If she re- I served as a Domestic Violence Ad- controlling finances and refusing to share veals a history of abuse by the same part- Fvocate for Northwestern Memorial money, withholding affection, expecting ner, the door has opened for the dreaded Hospital’s Emergency Department. The the victim to ask permission, humiliation, question, “Why don’t you just leave?” Department received a grant from the Illi- and threatening to harm the victim, chil- nois Attorney General’s Office to screen dren or family pets. People who have never lived the situation patients for often find it difficult to imagine a victim domestic vio- During training sessions with nurses, I staying in an abusive relationship. Add to lence and pro- emphasized another form of emotional that the psychological defenses deep in the v i d e abuse that seems to be a particularly ef- subconscious minds of physicians and intervention fective form of control, which is the nurses. Emergency department staff wit- services to vic- abuser’s attempt to convince the victim ness so much suffering brought on by tims. My re- that she cannot trust her own judgment events their patients cannot control. While sponsibilities or psychological or mental functioning. lifestyle choices may have some bearing on i n c l u d e d The expression “Gas Lighting” depicts this the likelihood of receiving a cancer diagno- screening fe- behavior. It was taken from the 1938 sis or experiencing a cardiac arrest, medical male and male stage play and 1944 film entitled “Gas science has not named lifestyle as the pri- By patients cho- Light” in which a husband manipulates mary cause of these illnesses. There are sen at ran- the lighting and other aspects of the home many folks suffering from lung cancer who Carol dom, working environment, but denies his actions when never smoked a cigarette or have not been Hamilton with victims his wife expresses concern. Instead he tells exposed to a significant amount of second- and teaching her she is imagining the changes. In an hand smoke. Most often, accident victims Emergency Department nurses to conduct abusive relationship, the victim is isolated are seen as victims. Unlike their prime-time screenings. In this article, I’d like to share from the outside input of family and counterparts in popular TV shows, staff some insights gained while working with friends. Gas lighting furthers her isolation cannot afford to become emotionally in- victims and staff in the Emergency De- by distancing her from her natural, pro- volved in each case. It would be too over- partment. tective instincts. whelming.Thankfully,the job requires that they move on to the next patient. Otherwise known as Intimate Partner Vi- Physical forms of abuse are easier to iden- olence, domestic violence has been de- tify. Still, the website describes behaviors In general, I observed an attitude of com- fined as “a pattern of coercive behavior in that might not be obvious to the average passion towards victims in the Emergency an intimate relationship, past or present, person. Among them are trapping the vic- Department. Nurses who underwent do- whereby the behavior of another person tim inside her home or locking her out of mestic violence training gained an appre- is controlled through humiliation, intim- her home, and scaring the victim by driv- ciation for the complexity of these idation, fear, and intentional physical, ing recklessly when she is in the car. The situations. Still, I feared a belief that the emotional, social, financial, or sexual in- use of unwanted, physical force in sexual victim simply refused to leave her attacker jury”1. As I told emergency nurses, it’s all situations clearly represents sexual abuse, and thus brought the abuse onto her self about control. While men may be victims, but an abuser’s view of women as objects would be conveyed to patients. I also wor- it is common knowledge that incident and belief in rigid gender roles also fall ried that, knowing domestic violence typ- rates are higher among women. Typically, into this category. ically escalates over time, nurses might tell abuse begins after both partners are emo- patients they must leave before the pa- tionally and financially invested in the re- Whether a victim began her relationship tients are ready to do so. While I struggled lationship. Non-violent, emotionally with a low self-esteem or not, feelings of to avoid this directive at times, I knew that abusive behaviors often precede physically worthlessness are consequences of endur- the period during which a victim leaves and sexually abusive ones. The National ing abuse. In addition, many have been led the relationship is one of the most dan- Domestic Violence Hotline’s website by their abusers to believe that they brought gerous times. Severely threatened that he (www.ndvh.org) lists examples of emo- the abuse upon themselves. After a batter- is losing power, an abuser does what he tional abuse. The list includes name call- ing incident, a victim experiences emo- can to maintain control. Violence esca- ing, insulting and criticizing, acting tional shock, fear and anger. Shame may lates, sometimes to the point of death. For jealously or possessive, isolating the vic- easily accompany these feelings, particu- this reason, victims are advised to make a tim from family and friends, monitoring larly when she goes to the hospital for treat- “clean break” when they leave by taking the victim’s whereabouts, preventing the ment. It’s an opportunity for the outside all important documents, clothing or any-
1 Ellis, June Mary.“Barriers to Effective Screening for Domestic Violence by Registered Nurses in the Emergency Department.” Critical Care Nurse Quarterly. 1991; 22 (1): 27-41 22 The Docket November 2009 thing else they may need in order to avoid battering incidents are often followed by a scribed previous incidents of abuse and returning to the home. period called the honeymoon phase. Dur- said that his girlfriend and her family were ing this period, the abuser becomes loving heavily involved in a local gang. He re- The threat of retribution is only one of the and contrite. He begs forgiveness and ported that gang members were searching reasons victims may choose to stay. Other promises not to harm her again. He may for him at the time. reasons include a lack of job skills, belief genuinely believe the things he says, or he that her children need a father, feelings of may guilt the victim into staying. Regard- I believe that every victim of domestic vi- helplessness, low self-esteem, shame that less of his method, the abuser often olence deserves understanding and sup- marriage isn’t working, fear of being alone, achieves his goal. I knew that this was a port from nonjudgmental staff when partner’s threats of suicide, religious or likely outcome for each victim, but I also entering the health care system. Victims family prejudices against divorce, lack of knew that providing both referral infor- should be met where they are at, instead home and a belief she has failed to keep her mation on hiding and a safe, nonjudg- of being told where they should be. If family together. When speaking with vic- mental space might encourage her to call ready to leave their relationships, victims tims I always tried to keep these reasons in or return for help in the future. should receive assistance in doing so. If mind. My preference was that they get not, staff should provide resource infor- themselves to safety quickly, but I needed Though most of the victims seen in the mation they can turn to in a moment’s to respect the complexity of each situation. Northwestern Memorial Hospital’s Emer- notice. With this approach, the Emer- If the victim chose to leave at that moment, gency Department are women, several gency Department becomes a safe place I assisted with her discharge plan. Some- male victims stand out in my mind. One instead of a place that victims avoid. times the plan involved referral to a local of them displayed numerous scars from Carol Hamilton is a Family Mediator prac- domestic violence or homeless shelter.Most previous stabbings inflicted by his girl- ticing in Libertyville. As a Licensed Clinical often, I provided referral information in the friend. He reported that he had never spo- Social Worker,she has served individuals and form of a pocket-sized brochure that listed ken of the abuse until that moment families in various suburban and Chicago our local domestic violence hotline and because he felt too ashamed to admit it. shelters with contact information. Victims There are probably many more male vic- hospitals for over 10 years. Her Emergency were not prepared to take the step emo- tims too afraid and embarrassed to talk Department work has focused on crisis inter- tionally or practically.They were afraid. about the abuse they suffer as it may af- vention with victims of domestic violence and fect the way other men, or even women, individuals suffering from mental health is- Another complicating factor in abusive re- perceive them. Another male victim stated sues. Carol is an Associate Member of the lationships is their cyclical nature. Serious he was hiding from his girlfriend. He de- Lake County Bar Association. JANUARY 2010
SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY 24 25 26 27 28 29 30
Capital Litigation Training Program This is a Capital Litigation Training Program SAVE THE DATE for prosecutors and defense attorneys meeting 13 MCLE Credits all educational requirements of Supreme Court LCBA Members $250 Rule 714(b)(4)(i) and (g). Approved by the Capital Litigation Non-members $350 Illinois Supreme Court Committee on Capital Training Program Private breakout sessions Cases and the Administrative Office of the NEW THIS YEAR: Illinois Courts. for prosecutors and defense attorneys. Jan 28 & 29, 2010 Registration materials available in December. Key Lime Cove, Gurnee November 2009 The Docket 23 2009 Caselaw Update he year 2009 saw many small steps 2009) the defendant had advance knowl- dant who had already invoked his right to forward in the Illinois criminal edge of the offense, was present at the counsel was found to have re-initiated Tcourts. The appellate courts spent commission, and fled the scene, all while questioning and waived his right when he much of the year clarifying rules and armed and with an intent to share the asked the officer booking him what would principles, which they had previously ar- proceeds, all of which showed more than be involved if he cooperated. In People v. ticulated.They also began formulating Illi- mere presence and supported his convic- Peo, 391 Ill. App. 3d 815 (2d Dist. 2009) nois’ responses to several U.S. Supreme tion based on accountability. the officer had already seen drug para- Court cases, phernalia in the car and believed the pas- which will lay Possession Is A Verb Too senger was under the influence of drugs. new founda- Two cases demonstrated that defendants Even with this articulable suspicion, the tions in crimi- who find and view child pornography can officer was permitted to ask her what was be convicted of “possession” of that nal law. wrong in response to her statement that pornography even without any active During the she felt ill. People v. Rubio, 392 Ill. App. 3d downloading or knowingly storing such Criminal Law 914 (2d Dist. 2009) demonstrated that information in the computer. The defense Committee’s sometimes you have to care enough to lie. “I didn’t know my computer saved this recent annual The defendant was found to have volun- stuff” will probably not fly in light of these seminar in tarily confessed after police lied, telling decisions. First, People v. Scolaro, 391 Ill. M i lwa u ke e, him his crime was videotaped and wit- By App. 3d 671 (1st Dist. 2009) supported Wisconsin, I nessed by several eye-witnesses. Rubio lists “possession” with evidence that defendant Keith was able to the limits of acceptable “police trickery.” Grant provide an had actively sought out websites offering overview of child pornography and subscribed to child It Matters Who Ties You Up our courts’ most important criminal law pornography web sites. The Court found A defendant who was restrained for med- decisions in 2009. this “reaching out” and “controlling” ical reasons at the hospital was not in cus- these images was the essence of posses- tody during police interrogation in People While a complete copy of my case law up- sion, despite the defendant’s claim that he v.Vasquez, 913 N.E.2d 60 (Ill. App. 2d Dist. date can be found at the LCBA website at didn’t know his computer stored the im- Jul. 14, 2009) (No. 2-07-1204 ) held that lakebar.org, what follows is a summary of ages in its cache. Likewise People v. Josephi- the interview did not take place “in cus- what we shared in Milwaukee. tis, Case No. 1-07-2147, 2009 WL tody” because the hospital room was neu- 2581704 (Ill. App. 1st Dist. Aug. 19, tral setting, and the defendant’s inability Accountability Is A Verb 2009) properly demonstrated that posses- to leave was caused by her injuries, not by A trio of First District cases hammered sion with evidence of actively seeking out police restraint. home the idea that defendants may only and paying for access to view images on a be held accountable where they partici- computer establishes both knowledge and Yelling Isn’t Always Rude pate in some active way in the offense. In dominion and control to support a finding (Or Evidence Of Police Coercion) People v. Velez, 388 Ill. App. 3d 493 (1st of possession. People v. Garcia-Cordova, 392 Ill. App. 3d Dist. 2009), the defendant participated 468 (2d Dist. 2009) held that evidence actively when, after the codefendant re- Confessions That Stick Come From that the officer yelled at the defendant vealed his intentions to shoot the victim if Cops Who “Care” during interrogation using a “loud com- he did not pay him, the defendant agreed This year’s admissible confession cases manding voice,” but that this incident did to accompany the codefendant, acted as generally involved officers who demon- not take place until after the defendant lookout, held codefendant’s cell phone strated a concern for the subject rather had made admissions, cannot be used to and met up with codefendant after the than an intent to obtain the confession or prove that those admissions were coerced. shooting, all of which demonstrated his inculpatory evidence. In People v. Harris, active participation. In People v. Jackson, 389 Ill. App. 3d 107 (1st Dist. 2009) the Judges Have A Right To Ask, 391 Ill. App. 3d 11, (1st Dist. 2009), the officers placed the suspect/mother of vic- Defendants Have A Right To Refuse defendant paid his codefendant to use his tim in their “quiet room” and only con- According to People v. Hillier, 392 Ill. App. credit, which he used to purchase two ducted their second interview to clear up 3d 66 (3d Dist. 2009), the court was al- homes and then submitted an appraisal inconsistencies between her earlier state- lowed to order a pre-sentence sex-offender purportedly prepared by another, all of ments and information obtained from evaluation even though the defendant which were sufficient to support the de- neighbors. This was not part of a deliber- was not eligible for probation. While such fendant’s active participation in identity ate police effort to undermine defendant’s evaluations are mandatory where proba- theft and forgery. Finally, in People v. Miranda rights. In People v. Outlaw, 388 Ill. tion is being considered, the statute is Walker, 392 Ill. App. 3d 277 (1st Dist. App. 3d 1072 (4th Dist. 2009) the defen- silent in cases where probation is off the 24 The Docket November 2009
table. Hillier was not entitled to Miranda from DUI, the plea itself bars the subse- One-Act-One-Crime: warnings prior to being compelled to par- quent DUI supervision. To quote Justice A Prosecutor’s Dilemma ticipate in the court-ordered sex-offender Kilbride’s opinion: the statute Two cases highlight the risk prosecutors evaluation; however, the appellate court’s sometimes take when they overcharge a opinion suggests that the defendant could provides that a defendant charged with case. Where overcharging implicates one- have refused to participate in the evalua- DUI is not eligible for court supervision if act-one-crime, the prosecution risks sur- tion. the defendant has previously pled guilty rendering discretionary charging to the to reckless driving as a result of a plea court. In People v. Smith, 233 Ill. 2d 1 In Crawford Cases, “Available” For agreement. Under the plain language of (2009), which was a consolidated opinion Cross Examination Means Just That the statute in these circumstances, a pre- covering two cases,, the defendants were In People v. Bryant, 391 Ill. App. 3d 1072 vious guilty plea to reckless driving under convicted of felony murder and predicate (4th Dist. 2009) the child victim testified a plea agreement is the only requirement offenses. The trial courts erred when they on direct about one sexual offense but not for barring a sentence of court supervi- refused defendants’ request that juries be a second offense. In People v. Kitch, 392 Ill. sion. Contrary to Kissack’s argument, the given separate verdict forms for each form App. 3d 108 (4th Dist. 2009) the victim plain language of the statute does not re- of murder, because the sentencing conse- was “quite vague” on direct examination quire the previous plea agreement to in- quences were different depending on but did answer all questions on both direct clude a reduction of the charge from DUI which form of murder the jury found the and cross. In People v. Sharp, 391 Ill. App. to reckless driving. The legislature did not defendants guilty of. Further, the error 3d 947 (4th Dist. 2009) the victim testi- limit or condition the phrase “plea agree- was not subject to harmless error analy- fied at length on direct but refused to an- ment” in any way. sis based on the strength of the evidence swer any questions about the offense. In presented. Therefore, the appropriate rem- People v. Garcia-Cordova, 392 Ill. App. 3d In A Traffic Stop, TIME Is Of The edy was to sentence the defendant as if the 468 (2d Dist. 2009) the witness answered Essence In Determining Scope jury found him guilty of only felony mur- all questions on direct but couldn’t or In The Village of Lincolnshire v. Kelly, 389 der and vacate the conviction for the pred- wouldn’t testify about the offense. In each Ill. App. 3d 881 (2d Dist. 2009) the officer icate felony under the one-act-one-crime of these cases, the defense counsel elected conducting a traffic stop did not imper- rule. (See Moore, 389 Ill. App. 3d 1031 to either not cross on the offense at issue missibly extend the scope of the stop since (1st Dist. 2009) for an analysis of this de- or not to cross examine at all. the extension (though not directly related cision). The prosecution lost the ability to to the reason for the stop) was not unrea- choose which charge to vacate in People v. In Crawford Cases, A “Certificate” sonable in duration (here, approximately Artis, 232 Ill. 2d 156 (2009). The court Doesn’t Satisfy Confrontation 51 seconds). In this and the next case, it erred when it concluded that aggravated Rather than being called to testify at trial, was the duration of the stop, rather than sexual assault committed during home in- the experts in Melendez-Diaz v. Massachu- the subject of the extension, that deter- vasion is a more serious charge based on setts, 129 S. Ct. 2527 (2009) merely of- mined the propriety of the officer’s inves- the classification of an aggravating factor. fered “sworn” certificates of analysis tigation. In People v. Al Burei, 391 Ill. App. However, rather than allowing the State’s stating that the substance tested was co- 3d 1, (1st Dist. 2009) the court held that Attorney’s prosecutorial discretion to se- caine. The Supreme Court held that the the traffic stop continued for an imper- lect which offense to vacate, the Court analyst must testify for the certificate to be missibly long period and that the officer’s held that the appellate court should have admissible. Argument that “it’s just sci- interrogation and consent search of the remanded the matter to the trial court to ence and not subject to change” ignores vehicle were improper. It was this exten- make that determination, and for resen- significant problems in forensic science, sion of time (rather than the chance in tencing. and the ability to cross-examine affords an scope of the stop) that the court found im- attorney the ability to weed out not only proper per People v. Cosby, 211 Ill. 2d 262 Felony Murder: dishonest analysts, but incompetent ones (2008). Another Prosecutor’s Dilemma as well. Just like one-act-one-crime, choices pros- Don’t Run From The Courtroom ecutors make in charging felony murder In DUI Cases, A Prior Plea To Deputy can ultimately cost them the guts of their Reckless Means No DUI Supervision A defendant ordered into custody in court cases. In charging felony murder, the This case sparked some controversy at the fled from his escorting courtroom deputy predicate offense cannot be an intrinsic seminar, but People ex rel. Madigan v. and attempted to argue that, since the of- part of the act of killing. In People v. Rosen- Kinzer, 232 Ill. 2d 179 (2009) held that ficer was not from a penal institution, he thal, Case No. 1-05-4085, 2009 WL 730 ILCS 5-6-1(d)(3) precludes a trial could not be convicted of escape. People v. 2778327 (Ill. App. 1st Dist. Sept. 1, court from entering a sentence of court Howell, 388 Ill. App. 3d 338 (4th Dist. 2009), the defendant’s conviction of supervision after a defendant pleads guilty 2009) held that the court security offi- felony murder for killing one of two per- to DUI where the defendant has previ- cers, employees of the Sheriff working at sons sitting in a vehicle based on the pred- ously pled guilty to reckless driving as re- the courthouse, of which the Sheriff is the icate offense of aggravated battery by sult of a plea agreement. Even though the custodian, are employees of a penal insti- virtue of discharge of a firearm had to be reckless driving charge was not reduced tution. vacated because the predicate offense was November 2009 The Docket 25 an intrinsic part of the act of killing the Montgomery Motions effective representation of defendant victim. To rule otherwise would allow the Note to Judges: Rule on Them! (note: her entire defense case consisted of State to escape its obligation to prove in- A series of cases this year found error— a single paragraph stipulation that the de- tent for murder, and would deprive the de- and several reversed underlying convic- fendant was afraid of the victim). fendant of the defense of self defense. tions—where trial courts refused (for a Further, it would deprive the defendant of variety of reasons) to rule on a defense Ineffective Assistance: his constitutional rights to remand the Montgomery motion in limine regarding Krankel Can’t Be Ignored – But It Can Be Limited case for sentencing on the lesser included the admissibility of the defendant’s prior The defendant in People v. Pence, 387 Ill. offense of aggravated battery,because it is convictions. Defendants who thereafter App. 3d 989 (2d Dist. 2009), argued in his not clear that jurors unanimously agreed chose not to testify were considered to sentencing allocution that he wasn’t that defendant was guilty of aggravated have waived the issue, but not those who “thoroughly represented” and that “there battery of the same victim. And in People v. did testify. Taken together, these cases were issues of fact that were omitted.” The Schmidt, 392 Ill. App. 3d 689 (1st Dist. show a strong appellate preference for a trial court erred when it at failed to in- 2009), the court held that aggravated bat- trial court ruling on Mongomery motions quire into the basis for defendant’s asser- tery of the victim, which did not result in before the defendant takes the stand. tion of ineffectiveness of counsel. People v. serious bodily injury, cannot be a predi- Those cases are: People v. Patrick, 233 Ill. Jocko, 389 Ill. App. 3d 247 (1st Dist. cate offense for felony murder, because it 2d 62 (2009): People v. Brown, 388 Ill. 2009), lays out a “blueprint” for Krankel does not qualify as a forcible felony. Fur- App. 3d 104 (1st Dist. 2009); People v. inquiries and compels trial courts to con- ther, since there was no evidence that the Hogan, 388 Ill. App. 3d 885 (1st Dist. duct a “meaningful inquiry” into claims defendant thought that striking the victim 2009); People v. Holloway, 912 N.E.2d 799 of ineffective assistance. Finally, despite with his car might be necessary to facili- (Ill. App. 1st Dist. 2009) demands by Krankel counsel, the trial tate his escape, the conviction for felony court in People v. Moore, 389 Ill. App. 3d murder had to be vacated and replaced Prosecutors: Closing is Argument, 1031 (1st Dist. 2009), correctly limited with a conviction for reckless homicide. Not Instruction the investigation by appointed counsel to FITNESS: The prosecutor in People v. Glasper, Case area of claimed ineffective assistance Accepting Experts and Rejecting No. 103937, 2009 WL 1690305 (Ill. Jun. identified as potentially having merit in its Edwards 18, 2009), informed the jury that the pur- preliminary review of defendant’s pro se The Second District affirmed a growing pose of the jury foreman was “to keep Krankel motion. The trial court did not line of cases which caution trial courts everyone on track” and to prevent consid- abuse its discretion when it refused per- against rejecting the opinions of experts eration of “wild unsubstantiated theo- mission to investigate claims of ineffective in making a finding of fitness. In People v. ries.” Although the Supreme Court did assistance, which had not otherwise been Lucas, 388 Ill. App. 3d 721 (2d Dist. not reverse for this error, it found that the raised. 2009) the trial court found the defendant, prosecutor’s statement amounted to in- who suffered from severe cognitive im- struction and was improper. Likewise, the Ineffective Assistance: pairment, fit to stand trial. This was con- prosecutor’s comparison of jury service to Don’t Keep Secrets From Your Clients trary to the unimpeached and the defendant’s interrogation and asking Defense counsel in People v. Clendenin, Case uncontradicted testimony of experts, who if jury duty had caused any of the jurors No. 2-07-0359, 2009 WL 2520531 (2d were supported by specific facts that the to be “ready to confess to a murder you Dist., Aug. 18, 2009) entered into certain defendant did not have the cognitive abil- didn’t commit” was irrelevant and served stipulations with the prosecution. In open ity to understand the trial process or par- only to distract the jurors. court, the defendant agreed to the stipu- ticipate meaningfully in his defense. This lation but indicated he neither signed nor case analyzed several of the precedents Ineffective Assistance: was aware of their content. While coun- Sometimes It’s Best to Grant the setting forth the limits against rejecting sel may enter into stipulations on behalf Continuance such opinions. While last year’s Supreme of a client, it cannot be over the client’s In People v.Walker, 232 Ill. 2d 113 (2009), Court decision in Indiana v. Edwards per- objection. Clendenin was denied his right the trial court committed plain error mitted a scheme whereby a defendant to confrontation because he was not able when it denied defense motion for contin- must demonstrate a higher level of fitness to meaningfully decide whether or not to uance without considering relevant fac- before being permitted to proceed pro se, object to the stipulation. tors and when defense counsel admitted this year, Illinois began to distance itself to court that she had recorded the wrong Right to Counsel: from that decision. As some lower federal trial date and was unprepared to go to Pro Se Means Pro Se courts have opined (see U.S. v. Berry, 565 trial. Defense counsel advised court that Two cases supported the Court’s author- F.2d 385 (7th Cir. 2009)), People v. Tatum, she had just finished a different jury trial, ity to refuse to appoint counsel to defen- 389 Ill. App. 3d 656 (1st Dist. 2009) held which required her to appear in court into dants who have demanded (and been that while Edwards permits such a two- the previous two evenings; there was no allowed) to proceed pro se. In People v. tiered scheme, it does not mandate or record of excessive requests for continu- Pratt, 391 Ill. App. 3d 45 (1st Dist. 2009) compel it. ances; and record demonstrates less than the trial court did not abuse its discretion 26 The Docket November 2009 when it refused defendant’s request to ap- People v. Johnson, 388 Ill. App. 3d 199 (3d court told the prospective juror: “I’m or- point counsel for him on the day sched- Dist. 2009) found substantial prejudice dering you to return to court tomorrow uled for trial, after defendant made and plain error where the Court enter- morning at 11:00 because I plan on pick- knowing and voluntary decision to pro- tained and answered a question without ing 12 individuals who are going to be ceed pro se, and represented himself with having the defendant present. The John- able to be fair and impartial to both sides no apparent difficulty for six months prior son Court refused to speculate about what in this case and I think you need an edu- to trial. Trial court correctly concluded would have happened had the defendant cation as to how the system works.” The that defendant’s day of trial request was a been present or whether presence would trial court then asked the rest of the panel dilatory tactic, especially since defendant’s have altered the answer (which was es- if anyone else had “a problem” with the murder trial had been pending for several sentially “keep deliberating”). However, charges – none did. Although it was un- years and defendant had gone through just a few months later, the First District wise, and could have been accomplished three private attorneys and the public de- found no plain error for the same absence outside the hearing of the rest of the fender’s office. In addition, court did not in People v. Cotton, Case No. 1-06-3354, venire, it was not plain error since the de- err when it refused defendant’s request for 2009 WL 2169043 (1st Dist., July 20, fendant failed to show that the trial stand by counsel. A refusal to appoint 2009). The Cotton court did elect to spec- court’s exchange with the prospective stand by counsel was similarly upheld in ulate that nothing would have changed juror deprived him of a fair trial. People v. Phillips, 392 Ill. App. 3d 243 (1st had the defendant been present. Dist. 2009). In Phillips, the defendant Kidnapping: made a knowing and intentional waiver Questions From The Jury: First, Find A Secret Hiding Place of his right to counsel several times after What Should You Say? Two new cases highlighted the need for being properly admonished, and trial When jurors ask substantive questions the prosecution to prove “secret confine- court’s refusal to appoint standby counsel about the case during deliberations, no ment” in kidnapping cases. In People v. was not considered an abuse of discretion. good can come from providing meaning- Gonzalez, 392 Ill. App. 3d 323 (1st Dist. ful answers. In State v. Davis, Case No. 1- 2009), an aggravated kidnapping was re- Jury Selection: 06-3748, 2009 WL 1872690 (June 26, versed because, although uncontradicted Always Give Individual Rule 413 2009), the trial court usurped the jury’s testimony revealed that the defendant of- Questions…Sometimes fact-finding role. The jury had asked if the fered to hold a baby while her father was Although the First District made clear that defendant gave his statement because the completing paperwork and then left the Supreme Court Rule 413 questions set death penalty had been “taken off the hospital with the baby without permis- forth in Zehr (defendant is: presumed in- table”. Although there was no evidence of sion, walked up busy street to restricted nocent; must be proved guilty beyond a this at trial, the trial court answered “no.” area of Rush Medical Center and was reasonable doubt; need not prove his in- This error was not harmless because the stopped by security, there was an absence nocence; and need not testify) must be voluntariness of the confession was the of evidence that she ever secretly confined posed individually to each juror. The trial key issue argued by defendant. The jury the infant, as is required by Criminal Code. court in People v. Anderson, 398 Ill. App. 3d reached its verdict twenty minutes after Therefore, only the conviction for unlaw- 1 (1st Dist. 2009), committed plain error the trial court provided its answer to the ful restraint stood. In People v. Calderon, when it failed to question each juror, as re- jury’s question and, prior to the question, 331 Ill. Dec. 885 (1st Dist. 2009), the quired by amended SCR 431, and obtain the jury had deliberated for six hours, was court found that secret confinement can their individual assurance that they could sequestered overnight, and had three occur when a defendant confines the vic- follow each principle. However, just a few times informed court of impasse. On the tim in a moving vehicle in plain view of months later the Supreme Court, without other hand, the trial court in People v. Mal- public. The court reasoned in Calderon any reference to Anderson, concluded donado, Case No. 1-07-2222, 2009 WL that the highly mobile nature of automo- that failure to give individualized Zehr 2448561 (1st Dist., Aug. 10, 2009), cor- biles makes locating one problematic. questions is subject to a harmless error rectly refused to answer the jury’s question analysis. See People v. Glasper, Case No. about what was permissible regarding Searching Cars: 103937, 2009 WL 1690305 (Ill., June confession, and telling jury to continue de- Not As Easy As Before 18, 2009) (held that the error is not struc- liberating, because there was no testimony First, the pretext stop “obstructed view” tural one that requires automatic reversal trial court could have repeated to answer it was dealt a blow in People v. Mott, 389 Ill. and that because evidence of defendant’s The trial court is not required to fill in evi- App. 3d 539 (4th Dist. 2009). In this case, guilt is overwhelming, the error was dentiary blanks left by a party. the appellate court found that the officer harmless). who stopped defendant’s vehicle for hav- Scolding Veniremen: ing a leaf-shaped air freshener hanging Questions From The Jury: Best Done In Private from her rearview mirror lacked probable Who Should Be Present? In People v. Brown, 388 Ill. App. 3d 1 (1st cause to believe that the defendant had vi- Two cases this year reached opposite con- Dist. 2009), the appellate court cautioned olated the Motor Vehicle Code by having a clusions when faced with a trial court, against the trial judge’s choice to scold the material obstruction hanging from mir- which received and answered questions first prospective juror who said he could- ror. The court concluded that the officer from the jury in the defendant’s absence. n’t be impartial in a drug case. The trial was operating under a mistaken belief as November 2009 The Docket 27 to the legal definition of “material ob- but stranded on a busy highway were in properly abandoned its Franks hearing, struction,” over-estimated the size of the effect seized and the stop impermissibly leaving the appellate court little to review. air freshener, and lacked specificity in his expanded beyond its end (the issuing of testimony about the level of obstruction the written warning). Shacking Defendants at Trial that the object created. Each year I make this presentation, I’m Warrants: forced to include another section on But most importantly, the idea of “search “Good Faith Reliance” shackling in court. Each year, other coun- incident to arrest,” as applied to the pas- Requires Good Faith ties (thankfully not Lake) shackle (now senger compartments of vehicles, was In People v. Morgan, Jr., 388 Ill. App. 3d using high-tech “stun belts”) defendants mostly laid to rest. The U.S. Supreme Court 252 (4th Dist. 2009), the prosecution at trial without first determining whether ruled in Arizona v. Gant, 129 S.Ct. 1710 failed to meet its burden of proving that the defendant is actually dangerous or an (2009) that once a driver/passenger has defendant’s arrest qualified for a good escape risk or after finding that he is with- been removed from the passenger compart- faith exception. The police had a warrant out any supporting evidence. In People v. ment (in Gant’s case, handcuffed and list that they knew was several days old, Weeks, Case No. 4-08-0534, 2009 WL locked in the back of the squad car), there is and failed to verify that the arrest warrant 2767015 (4th Dist. Aug. 28, 2009), a 72- no remaining exigency (the subject obtain- for defendant was still current before exe- year-old defendant was fitted with a stun ing a weapon or destroying evidence) to cuting it. Immediately after arresting the belt unbeknownst to the court and on ap- allow a search absent a reasonable basis for defendant, a single and very short call to peal complained that his fear of shock and believing the compartment contains evi- the station revealed that the warrant was resulting heart attack kept him from tes- dence relevant to the crime for which the in fact not valid. Under the circumstances, tifying. In People v. Johnson, 387 Ill. App. defendant has been arrested. While not for- the court found that suppressing the evi- 3d 768 (3d Dist. 2009), the trial court mally overruling Belton, the Gant court re- dence would deter future grossly negligent first failed to hold a Boose hearing, and jected the contention that searches incident police conduct. then on remand incorrectly found a man- to arrest are categorically reasonable. ifest need for shackles based only upon his Warrants: history of robbery convictions and in the In fact, our own Justice Schostok has just Deference Owed To Issuing Judge face of the defendant’s non-disruptive be- issued a careful analysis of the meaning In two recent cases, Illinois trial courts havior up to the date of trial. Each year, I of “detained” and “arrested” as those failed to grant sufficient deference to the hope that courts will follow our apparent terms relate to Gant in People v. Arnold, judge who had issued search warrants. In lead and refuse to shackle defendants at Case No. 2-07-0463, 2009 WL 2661136 both of those cases (People v. Bryant, 389 trial without a thorough hearing to deter- (2d Dist., Aug. 26, 2009). Applying these Ill. App. 3d 500 (4th Dist. 2009) and Peo- mine manifest need. Here’s to next year. definitions, she wrote that the Supreme ple v.Vera, Case No. 1-08-1533, 2009 WL Court’s ruling required a finding that the 2136275 (1st Dist., July 16, 2009), the Keith Grant is the Lake County Public De- search of defendant’s car in store parking trial courts speculated about what was or fender’s Chief of Special Defense & Profes- lot was unreasonable, because defendant wasn’t presented to the issuing judge and sional Development. A criminal trial attorney was by then handcuffed and in the squad failed to accept that the issuing judge’s sig- with 20 years experience and a certified lead car, and therefore police had no reason to nature indicated that the contained facts counsel in the Illinois Capital Litigation Trail believe that defendant would flee or that had been subscribed and sworn before Bar, he is also c-chair of the LCBA Criminal evidence would be destroyed. that judge. In Bryant the trial court im- Law Committee. Searching Cars And Stranding Motorists – Never A Good Idea Applying the “impermissibly extending the scope of the stop” analysis—whereby the crucial factor is the elapsed time meas- THANK YOU! ured against a “reasonable stop”— the court in People v. Davenport, 392 Ill. App. The following attorneys have accepted 3d 19 (3d Dist. 2009), found the officer Pro Bono cases through Prairie State Legal Services impermissibly extended the stop despite his efforts to release the car’s occupants. in October 2009. After stopping the car on Interstate 80, the officer issued a warning ticket and told Kristen Brown Dwayne Douglas the occupants they were free to leave. However, because they were all nervous Lucy Dorenfeld Jenny Valsamas and from out of state, and because the driver refused to consent to a search or To volunteer, please contact Susan Perlman dog sniff, the officer detained the car. The at [email protected] or 847-662-6925. court found that motorists “free to leave” 28 The Docket November 2009
Lake County Bar Association • 300 Grand Avenue, Suite A • Waukegan, IL 60085 • (847) 244-3143 November 2009 The Docket 29 Are You My Lawyer?: Negotiating the Perils of Pro Se, Stand-by & Hybrid Representation Chief, Training & Special Defense Judges drawn from my experience and in- would disagree. In fact, bond posted may Lake County Public Defender’s Office tended to help navigate the perils of the have “no bearing” upon ability to pay for We’ve all seen him, striding purposefully criminal defendant who thinks he can do the services of counsel. Other cases re- out of the law library toward the criminal what we do better than we. mind us that even indigent defendants courts. In his arms are bundles of docu- who have bond posted by third-parties can ments and clippings, case law, and scrib- Indigence and the Public Defender see that bond used to pay court appointed bled notes. In his battered briefcase, a Everybody knows the public defender rep- counsel. d o g - e a r e d resents the indigent criminal accused. But copy of Chap- indigence, like some other things, is de- Who’s In Charge? ter 38, the Illi- fined as something you’ll know when you Once counsel (either appointed or re- nois Criminal see. Also, it is arguably not the only crite- tained) properly appears, that defendant Code from ria for appointment of counsel. 725 ILCS is considered represented by counsel. In 1986 that he 5/113-3(b) states that the public defender the Army,I was constantly reminded that found at a may be appointed “if the court determines “somebody’s always in charge.” That con- garage sale or that the defendant is indigent and desires cept applies in criminal defense represen- maybe bought counsel.” But 55 ILCS 5/3-4006 (duties tation, but the Illinois Supreme Court has on e-bay. He’s of the public defender) instructs appoint- given some of that “in-charge-ness” back the pro se ment when the court finds the defendant to the represented client. A represented By criminal de- is “unable to employ counsel.” The same defendant is constitutionally required to Keith fendant and statute instructs appointment in juvenile be responsible for five (5) fundamental Grant he’s headed cases where the accused is “financially choices regarding his representation and for a court- unable to employ counsel.” the course his defense will take. While the room near you (probably on a day you defendant must personally make each of thought you were going to sneak in for a If the statutes won’t resolve the definition these choices after consultation with five minute status date). of indigence when appointing counsel, counsel, Illinois courts have consistently perhaps case law will. Unfortunately, few held that strategic and tactical decisions As an Assistant Public Defender in Lake cases speak to this issue, and the most ex- regarding the manner in which the case is County for nearly twenty years, I have plicit are oddly the most vague. While the defended are matters involving the “supe- seen more than my share of pro se liti- defendant need not be entirely without as- rior ability of counsel” and are left to the gants and have been stand-by counsel to sets to be considered indigent, this deter- attorney. them on more than a few occasions. Pri- mination should be decided with an eye vate attorneys, remember the last client firmly on the protection of the defendant’s Thus, the answer to the question “who’s you had who filed his own “Motion to rights and, in a close case, should favor ap- in charge?” is an unqualified “it depends.” Squash Arrest” and never mentioned it to pointment. When indigence is at issue, the Perhaps the best way to look at it is to say you? What about that client who com- failure to appoint counsel will be seen as a that the defendant decides whether a bat- plains to the Judge that you won’t let him “serious deprivation.” As recently as tle will take place and where that battle- decide what motions to file or what wit- March of this year, the appellate courts field will be, but that it is the sole nesses to call? were still using this language and de- responsibility of the defense counsel manding that the trial court conduct a full (whether appointed or retained) to actu- Criminal defendants attempting to take and complete accounting of the defen- ally fight the battle. This includes all deci- over their own case and micro-manage dant’s finances. Thus, it is incumbent sions regarding what weapons to use their representation is not just a public de- upon the trial court to inquire fairly deeply (motions to file, witnesses to call, ques- fender’s issue. Any of us, in front of or on before considering denying appointment. tions to ask) and how to use them. either side of the bench, who practice criminal law should be prepared to effec- Often, courts are confronted with defen- There is a vast body of Illinois law regard- tively work with and instruct these often dants claiming indigence after they or ing ineffective assistance of counsel issue most difficult of clients. And Judges, someone else has posted a significant which cautions criminal defense practi- choice of counsel and scope of represen- bond to procure their release. Too often, tioners not to let this authority go to their tation are constitutional issues which can the posting (or inability to post) bail is con- heads. Without writing a whole other easily derail even the simplest of cases. sidered as the deciding factor in determin- paper on that topic, it will suffice to say What follows is a primer for counsel and ing indigence. The Illinois Supreme Court that defense counsel is well served by in- 30 The Docket November 2009 volving the client in each phase of the trial sel would be best served by having Handy Please Stand By and making him or her feel like a member handy.If we do, we will always remember Courts will occasionally find themselves of the team rather than a pain in the butt. that a represented defendant has no au- faced with a competent defendant who is This includes a frank discussion of the di- thority to file pro se motions and that choosing to represent himself but who vision of decision-making responsibility courts not only don’t need to consider constantly inquires of both the court and fairly early in the representation. Failure such motions, they are precluded from the prosecutor what he should, can, to win your clients trust is likely to lead to doing so. In addition to those “five might, or ought to do next. This defendant heartache for all involved. choices,” every defendant has one other is neither incompetent nor unable to rep- choice. He can be represented by counsel resent himself; he merely has legal ques- Why Can’t We All Just Get Along? or he can proceed pro se. A defendant has tions he doesn’t know how to answer. It is If we as defense counsel allow our rela- no right to “some sort of hybrid represen- at this point that the court may consider tionship with our clients to disintegrate, tation [receiving] the services of counsel appointing stand-by counsel. While most there is no magic power (or silver-bullet and still be permitted to file pro se mo- courts appoint stand-by counsel only case law) which will allow us to walk tions.” The only exception to this rule is upon the specific request of the defendant, away from a bad situation. While attor- the pro se motion alleging ineffective as- this is not necessary.Not only need the de- neys seeking to be released from represen- sistance. fendant not affirmatively request assis- tation of particularly difficult clients will tance of stand-by counsel, such usually do so by filing a well-drafted mo- It’s ultimately in all (client, defense, pros- appointment may be made over the ex- tion to withdraw as counsel, our clients ecution, and court) our best interests if de- plicit objection of the defendant. The are often less “abstract” in their methods. fense counsel works diligently to establish Supreme Court cautions against any trial a solid attorney-client relationship sup- Refusing to “reward” bad behavior, Illinois court adopting a blanket “appoint stand- ported by appropriate rulings from the courts “should not hesitate to reject ap- by to pro se defendants” policy,but instead bench. But often that just isn’t going to pointed counsel’s motions to withdraw instructs judges to balance the defen- happen. just because the relationship has col- dant’s perceived legal acumen against the lapsed.” Notice that the word is “col- complexity and seriousness of the case. Changing His Mind This would seem to argue that blanket lapsed,” not “degraded” or “become Defendants have a right to be represented difficult,” which signals an intolerance of policies (either for or against appointment by counsel or to represent themselves, but of stand-by counsel) will be examined either the client or counsel thinking they not to both at once. Some defendants will can just walk away from a train wreck under an abuse of discretion standard. flip-flop on this decision, first going one The Gibson court ultimately held that a they had a hand in causing. Put in its least way and then another. Our courts resist tolerant and most absolute manner, defendant who elects to proceed pro se this indecision, especially where the court (whether with assistance of stand-by “courts delude themselves when they be- finds the defendant is seeking to thereby lieve that another appointed counsel will counsel or without) must be prepared to re-litigate matters which were previously serve as his own counsel. cure the problem of defendants gaming settled while he was represented by coun- the system.” sel. To allow this, courts reason, would be Since then Illinois courts have made clear Taking bad behavior a step further, Illinois to allow the defendant to have hybrid rep- that the nature and extent of stand-by courts are also loath to permit counsel to resentation. Likewise, recent decisions counsel’s involvement in the case is well withdraw even after suffering a physical have precluded pro se defendants from within the discretion of the trial court. attack at the hands of the client. Finding making day-of-trial demands for counsel Limitations imposed by trial courts and that a physical attack does not constitute if the court finds this to be nothing more supported by appellate courts begin with a per se conflict of interest, courts reason than a delaying tactic and where the de- the admonishment that the pro se defen- that to do otherwise would be to encour- fendant’s pro se representation has thus dant is alone responsible to prepare his age clients to attack counsel in a bid to ob- far been adequate. case for trial. At it’s most militant (and tain a mistrial. perhaps most correct), the Fourth District Thus, a criminal defendant making this Appellate Court has encouraged a “seen On the other hand, many represented de- choice must be ready to stay with that but not heard” rule when appointing fendants will refrain from physical vio- choice, often regardless of how things ap- stand-by counsel. The Williams court goes lence (or even yelling), electing instead to pear to be going. Courts would be wise to too far, however, when it suggests that take their case into their own hands. Few so advise defendants who have voiced a trial courts will always be correct when defense practitioners have not had the ex- desire to exercise this choice. This is not to they refuse to appoint stand-by counsel. perience of approaching the bench on a say that defendants should be encouraged This extreme ignores the careful consider- case only to be confronted by a judge to proceed one way or the other, a compe- ations and balancing required by Gibson wielding a piece of notebook paper bear- tent defendant (more on that in a mo- as well as the “serious deprivation” lan- ing the hand-written title “Motion to ment) has a right to choose to represent guage applied to failure to appoint counsel Squash Arrest” and a circuit clerk’s file himself or to be represented by counsel. above in Ellis. The “boogey-man” of Lind- stamp. Many courts will accompany the The court will likely encounter the least sey (prejudicial error caused by the court’s waiving of this document with a question: trouble when it assures itself that this refusal to permit a pro se litigant to seek “Counsel, do you wish to adopt this mo- choice is well reasoned and not made the assistance of his appointed standby tion?” At this point, both court and coun- capriciously. counsel) is laid to rest within the body of November 2009 The Docket 31
Lindsey itself. There, the court notes that, dant’s refusal to do anything as a waiver who is able to cooperate with a lawyer since no limits had been placed on stand- of counsel and proceed as though the de- may be overwhelmed by if faced with by counsel’s duties, the defendant was fendant had so waived and was pro se. To them alone. After a brief period of “sky is reasonable in his expectation that he do this, however, the court must properly falling” worry in the trial courts, we are might rely upon that counsel at any phase admonish the defendant pursuant to beginning to see that Edwards does not of the trial and for any purpose. Supreme Court Rule 401(a) regarding compel a two-tiered standard of fitness. waiver of counsel. The Second District Ap- The failure of the Lindsey court to impose pellate Court has found that a competent strict limitations upon the duties of stand- The Seventh Circuit federal court was re- defendant, having received these complete cently faced with a defendant’s argument by counsel has also been pointed out by admonishments, would at least be consid- that Edwards does indeed create a two- the Illinois Supreme Court, which sup- ered to have knowingly waived counsel ports trial courts that appoint stand-by and could then be compelled to proceed tiered system and replied with a resound- counsel in a “strictly limited” role, advis- pro se. ing, “is that so?” That court went on to ing the defendant “consistently” that note that while Edwards may allow for a stand-by counsel’s role would be “very There are also those defendants who higher standard of fitness in pro se cases, limited.” It is therefore well within the trial might not be sure who they do want to it absolutely does not compel it. Illinois court’s discretion to appoint “seen but not represent them, but they’re certain it isn’t has also taken the position that Edwards heard” stand-by counsel and it is probably the lawyer they currently have. This usu- is not requiring a two-tiered standard of in everyone’s best interests that these lim- ally happens the week before or the day of fitness; it is merely ratifying Indiana’s au- itations be expressly set down in a written trial. No criminal practitioner has done order at the time of appointment. this job for more than a month without thority to create one. At present, Illinois’ having some defendant demand his interpretation of Edwards is that it does As a practical matter, “best practice” lawyer be discharged so he can find some- not impose any additional hurdle or re- would appear to dictate that stand-by body,anybody,else. And we have all heard quirement for a defendant to be permitted counsel who is appointed with sufficient the response from the court, “no”. And strict limitations on his or her involvement to proceed pro se. As I summed up at the should maintain a certain level of separa- that’s the right answer. Especially on the recent LCBA Criminal Law Conference in tion from the defendant so as to avoid the eve of trial when no replacement counsel Milwaukee, “fit is fit”. appearance of morphing into co-counsel stands ready and able to make an uncon- or hybrid representation. Stand-by coun- ditional appearance. The most common Conclusion sel should refrain from sitting at counsel form of this incident is the defendant who Hopefully this article helps judges and table (the only “counsel” is the pro se liti- reports in court that his family or friends lawyers more readily confront the issues gant, after all). Likewise, stand-by counsel have hired someone, he just doesn’t know created by the difficult defendant. Espe- who, and that attorney is on his way. should not approach the bench with the cially when faced with defendants who ei- defendant at sidebars or accompany the Courts should resist the knee-jerk reaction ther cannot or will not retain counsel and defendant to any “in chambers” confer- to these apparently dilatory tactics and re- refuse the appointment of counsel by the ences. Remember, you’re a “library”, try frain from denying the request out of court, a finding of waiver of counsel and to do what a library would do. hand. Instead, courts should take a deep the appointment of stand-by counsel can With such expressed limitations, it be- breath (you’re not going to like this) and put the case back on track while still pro- comes possible to both protect a pro se lit- attempt to ascertain if counsel is actually tecting the defendant’s important consti- identified and available. If the answers to igant’s important constitutional rights to tutional rights. Neither a solution in every these questions are “yes”, then “reason- both represent himself and to free the case, nor a bug-a-boo to be avoided at all able accommodations”, which may even court from the responsibility of serving as costs, stand-by counsel is another tool in a legal resource, explaining the complexi- include a continuance, may be “neces- the court’s kit which can be effectively ties of a criminal case. sary” to assure the defendant’s right to counsel of choice. used to assure that justice is served and On The Fence that the defendant’s rights are studiously Then there are those defendants who sim- Fitness and the Pro Se Litigant observed. In the words of Cesar Milan, all ply won’t decide. They either can’t or Within the last year, the U.S. Supreme it takes is “rules, boundaries and limita- Court appears to have tossed a stone into won’t retain private counsel, they reject tions”, in this case, imposed explicitly by the appointment of the public defender, the pool of pro se representation that is the court at the time of appointment. and they refuse to act as their own lawyer. still rippling toward the trial courts. In In- Courts still have several options in this dif- diana v. Edwards, the Court approved In- Keith Grant is the Lake County Public De- ficult circumstance. Remembering the diana’s statutory requirement that a fender’s Chief of Special Defense & Profes- Stoops allowance for continued represen- defendant who whishes to proceed pro se sional Development. A criminal trial attorney tation even in the face of a “collapsed” at- must demonstrate a higher level of mental torney client relationship, there is competence or fitness than a defendant with 20 years experience and a certified lead authority for appointing counsel even who is represented by counsel. It was rea- counsel in the Illinois Capital Litigation Trail over the defendant’s objection. It is also soned that such a scheme accounts for the Bar, he is also c-chair of the LCBA Criminal possible for the court to treat the defen- complexities of trial which a defendant Law Committee.
November 2009 The Docket 33
Criminal Law The Seminar Grapevine ore than 75 lawyers and judges attended the 2009 Crim- Achievements & inal Bar Seminar in Milwaukee in September. The whirl- Mwind seminar of 24 hours (from noon on Thursday, other notables: September 24 to noon the next day) focused on Domestic Violence Congratulations to: with a helping of other issues important to criminal law practi- Mark Van Donselaar and his wife Diane, to whom tioners. Jared Alan Van Donselaar was recently born.
In addition to the seminar, held at The Corey L. Minnihan recently joined the firm of Pasquesi Hilton in downtown Milwaukee, over Associates, P.C. in Lake Bluff. Ms. Minnihan graduated 65 people socialized on the right field from The John Marshall Law School and was licensed in “Dew Deck” at fan-friendly Miller Park November 2008. She is primarily involved in the firm’s on Thursday night. A Milwaukee Brew- activity in trust, estate and guardianship litigation, and ers baseball game provided background in trust and estate planning and administration. music for the Bar Association’s party. All members caught betting on the leg- Judge Victoria L. Martin announced her retirement ef- endary “Sausage Race” took the Fifth, fective the end of October, as reported in the Lake County By and continued that plea on other ex- News-Sun. http://www.suburbanchicago- ploits in downtown Milwaukee. news.com/newssun/news/1802379,5_1_WA02_JUDG Jim ES_S1-091002.article Simonian The seminar presenters included two current and former Presiding Judges of On September 29, LCBA President Scott Gibson ad- domestic violence court, Victoria Rossetti and Joseph Waldeck, who dressed over 90 people at the annual party for paralegal kept the members up-to-date on trends in domestic violence cases students and staff at the College of Lake County.A large with a focus on orders of protection. A central presentation in- number of those in attendance were already associate volved the practical effects and challenges in properly implement- members of the LCBA, and Mr. Gibson said that the ing the new Bischof law, which allows for electronic surveillance LCBA should study and foster better communication be- of persons charged with or convicted of order of protection viola- tween paralegals and attorneys, especially as it relates tions. to job opportunities.
Other presenters included committee co-chair Steve McCollum and As reported last month, Deb Goldberg was chosen by Assistant State’s Attorney Stella Veytsel, who spoke on practical Illinois Legal Aid Online as the Pro Bono Attorney of the and ethical questions in domestic violence cases, noting that ethi- Month. You can see a video clip interview at http://illi- cal questions have the practical result of an hour of CLE profes- noisprobono.org/ (click on “View Previous Attorneys of sionalism credit. Keith Grant from the Public Defender’s Office, the Month”). co-chair of the committee, deserves a “PowerPointer of the Year” award for his lively presentation on standby counsel, and further A recap of some LCBA members recently appear- enlightened the group with the always-important case law update. ing in the news: The Volunteer Lawyers Program award winners, Chris Bar Association President Scott Gibson and David Del Re opened Marder, Matthew Kaplan, Kathleen Curtin, and the eyes of the group to civil and family law ramifications in crim- William and Suzanne Lindsay, were noted in the Lake inal domestic violence cases, while Amy Meister Falbe of the State’s County News-Sun and the Chicago Daily Law Bulletin, Attorney’s Office and Barb Hayward of the Public Defender’s Office along with Wayne Flanigan Award recipient Richard presented juvenile court dilemmas. Fellow bar member Lt. Com- Kohn. http://www.suburbanchicagonews.com/new- mander John Clady reminded attendees of current Navy policy on sun/news/1785604,5_1_WA23_AWARDS_S1- a Great Lakes client’s arrest for various offenses, and several vic- 090923.article tim’s counselors also gave the attendees their observations. Several of the presentations from the Seminar can be found in the pages of Attorneys on the move: this month’s Docket. Joy Fitzgerald is pleased to announce the opening of her new practice, The Law Office of Joy C. Fitzgerald, James Simonian has been an attorney in Lake County since 1989. Jim P.C., at 900 North Shore Drive Suite 150 in Lake Bluff. served in the Lake County State’s Attorney’s Office for 11 years, culmi- Joy can be reached by phone at (847) 244 7131, and nating his time as Felony Drug Prosecutions Chief. He has been in private concentrates her practice in complex matrimonial liti- practice since 2001 with an office in Waukegan, focusing on criminal gation, child custody/support, maintenance, and re- cases both as a village prosecutor and defense attorney. Jim has served as moval litigation. a member of The Docket Editorial Board since 2000. 34 The Docket November 2009
September 17, 2009 Executive Board Meeting
Prior Minutes $8,718.34. MEMBERS PRESENT A motion was duly made, sec- The Criminal Law Seminar has a Scott Gibson onded, carried and it was re- President solved that the minutes, as soft net number of $2,633.34; Minutes amended, from the August 20, however not all revenue has Perry Smith Second Vice-President By 2009 Board Meeting and Execu- been received and not all ex- tive Meeting were approved. penses have been paid. Kevin Kane Marjorie Treasurer Sher, New Members Due to the Lake County Bar As- Marjorie Sher Secretary A motion was made to table the sociation’s decision to lower rates Secretary admittance of new members to for government/public entities Bryan Winter the October, 2009 board meet- that pay for all members of that Immediate Past President specific group to join the Associ- ing. Hon. Valerie Ceckowski ation at one time, the LCBA has (by phone) Treasurer’s Report obtained 37 new members, The treasurer, Kevin Kane re- which consists of the attorney Hon. Fred Foreman ported that the Lake County Bar staff members of the Lake Hon. Joanne Fratianni Association has $47,018.80 County Public Defenders Office. Steve McCollum and the Lake County Bar Foun- Of those 37 new members, 17 of the attorneys had been previous Chris Boadt dation has $168,279.85 in each Executive Director respective bank account. members of the LCBA, but had dropped membership. The Lake County Bar Associa- purpose of the policy and proce- tion has expended $6,033.18 in The LCBA holds an American dures is to prevent the personal office expenses to set up the Express Card, which typically interest of staff members, offi- LCBA’s new office, which funds has been held in the name of the cers, board members and com- were loaned from the Lake Treasurer and Executive Director mittee chairs from interfering with the performance of their County Bar Foundation to the of the Association. However, to duties to the LCBA or its affiliated Lake County Bar Association. date Perry Smith, the former organizations, or result in per- The new office is located at 300 Treasurer and current Second sonal financial, professional, or County Street, Waukegan, Illi- Vice President, is still listed as an political gain on the part of such nois, and on track to open on Oc- approved signer of the American persons at the expense of the tober 1, 2009. Express Card. The LCBA is hav- ing difficulty effectuating the LCBA, its affiliated organizations, Kevin reported that the Lake change from Perry to Kevin as its members, and/or supporters. County Bar Association will the authorized signor.Therefore, There was a discussion to amend need to keep a close eye on the the Bar Association has investi- the policy in regards to Para- balance in its accounts, as with gated obtaining a Credit Card graphs 2, 5, 6, and further, that the new office there will be in- from First Midwest Bank, which the form attached be deleted. A creased expenses, (e.g. rent, is aware of the yearly changes to Motion was duly made, sec- which will increase $1,100.00 the authorized signer.The Board onded, carried and it was re- per month; the severance pay- agreed to cancel the American solved that the Conflict of ments to the LCBA’s former em- Express Card in exchange for a Interest Policy, as amended, was ployee). card with First Midwest after the approved. Criminal Law Seminar sched- Whistle Blower Policy - The Lake The Lake County Bar Founda- uled for September 25, 2009. tion is currently holding County Bar Association is com- mitted to high standards of ethi- $23,347.00 on behalf of the A Motion was duly made, sec- cal, moral and legal business TIM Court. onded, carried and it was re- solved that the treasurer’s report conduct. In line with this com- The LCBA Golf Outing netted the was approved. mitment, and the Association’s sum of $1,503.86. commitment to open communi- Considerationof PolicySub- cation, this policy aims to pro- The Civil Trials and Appeal Sem- committeeRecommendations vide an avenue for employees inar netted the sum of Conflict of Interest Policy - The and volunteers to raise concerns November 2009 The Docket 35 and reassurance that they will be pro- and Retention Committee Board accepted the proposed amended By- tected from reprisals or victimization for Recommendations Laws. The same will be presented to the whistle blowing. The whistle blowing pol- With two recusal, a quorum present, a mo- membersof theLakeCountyBarAssociation icy is intended to cover protections for you tion was duly made, seconded, carried and at the meeting scheduled for September 22, if you raise concerns regarding the Asso- it was resolved that the suggestions of the 2009. It should be noted that on September ciation, such as concerns regarding: in- Judicial Selection and Retention Commit- 22, 2009, after this Board Meeting, the correct financial reporting, unlawful tee Recommendations be accepted. The amended by-laws were presented to the gen- activity, activities that are not in line with recommendations which were approved eral membership, and by a unanimous vote the Association’s policies, including the are as follows: of all members present, which constituted a Conflicts of Interest Policy; or activities quorum, the Amended By-Laws to the Lake which otherwise amount to serious im- 1.That the JSRC rules, regulations and County Bar Foundation were approved. proper conduct. A Motion was duly made, standards as amended, were approved; seconded, carried and it was resolved that Public Policy 2.That the LCBA application include a the Conflict of Interest policy was ap- The Lake County’s publicity policy provides copy of the AOIC application, aug- proved, as amended. that the Bar will publish either by e-news mented by a supplement specific to the or in the Docket certain announcements Organizational Handbook Policy -This hand- LCBA; which are related to an aspect of the legal book is a compilation of the LCBA policies profession, organized by LCBA members 3.That the LCBA conduct joint polling and operations practices. It is intended as a and not-for-profit. During the last month, with ISBA for Circuit Judge election and reference manual for staff, officers and the LCBA received a request for publication retention, Appellate Court and Supreme board members and to create a record of by the North Chicago Police Department, Court elections; procedures for the training and education via the Sheriff’s Department, which re- of new employees and officers. Items 4. That the LCBA conduct joint polling on quest was denied as a result of not meeting which have been formally adopted as Associate Judge appointments or reap- the criteria set by the publicity policy.In ad- board policy are identified as such and pointment if a local rule or administra- dition, the Association of Women’s Attor- may only be modified by action of the tive order is issued indicating that 1) the neys has requested that the bar notify board. results of the poll will be shared with the LCBA members of their January, 2010 LCBA; 2) the results are published and seminar. A Motion was made to table this The Board discussed an amendment 3) the Chief Judge agrees to initiate the discussion to October, 2009. which would allow the Board to consider joint poll. The ISBA will only conduct an Audit every September, as opposed to Use of Conference Room at LCBA polls for Associate Judge Applicants at every other year.A motion was duly made, new offices the request of, and through, the Chief seconded, carried and it was resolved to The Association of Women’s Attorney’s Judge. approve the policy with the amendment. requested to hold their board meetings at 5. The consideration of electronic polling the LCBA office in the conference room. After the Organizational Handbook Policy of members be deferred due to concerns The Board approved this request for No- was passed, the board discussed whether of confidentiality, security and cost. vember, 2009, and tabled the discussion of or not to obtain an audit during 2009. A additional meetings to October, 2009. Motion was made, seconded and carried to Fall Lunch Series table this discussion until October, 2009. September 22, 2009 - Waukegan City Hall Board Meeting Chris agreed to obtain bids for obtaining - Pro Bono Awards. The next board meeting is scheduled for the audit. October 15, 2009. October, 2009 - Pending Section V of the Organizational Handbook Executive Director Report Policy was a discussed. A discussion was November 3, 2009 Professionalism Rule Chris reported on the new office space and had to require a) approval by the board of Changes. the search for an employee. A Motion was directors for all out of state events and b) made, seconded, carried and it was re- strict enforcement of the non-member Lake County Bar Foundation solved that the employment committee prices for CLE. A motion was made, sec- The Lake County Bar Association has would be given authority to hire employee. onded and carried to table this discussion planned a tentative kick off reception for Chris was instructed to narrow down the to October, 2009. Chris agreed to research past and upcoming board members of the applicants to two potential candidates and what other bar associations do in this re- Lake County Bar Foundation on October submit the same to the employment com- gard, and report back to the Board in Oc- 1, 2009 (which has now been rescheduled mittee for a determination of which can- tober, 2009. to November 20, 2009). The Board mem- didate to hire. bers present at this meeting agreed to vote The board discussed creating a policy on the proposed slate of Board Members to The Board went into Executive session about when the LCBA would provide the Lake County Bar Foundation via email. upon request of the second vice president. lunch for its committee members. A mo- tion was made, seconded and carried to The Board discussed the proposed amend- There being no additional business, a mo- table this discussion to October, 2009. ments to the by-laws of the Lake County Bar tion was duly made, seconded, carried and Foundation. A Motion was duly made, sec- it was resolved that the meeting was ad- Consideration of Judicial Selection onded, carried, and it was resolved that the journed. 36 The Docket November 2009 In the LCBA Bulletin Months Ahead... December 2009 Board DATE EVENT & LOCATION TIME Wed, Dec 2 Real Estate Committe Meeting 5:00 p.m. InLaws, Gurnee DOWTOWN WAUKEGAN Tues, Dec 8 Member Lunch: Illinois Supreme Court 12:00 noon Across from Courthouse, 275-1800 Bonnie Brook Golf Course square feet. Janitorial provided. Well Thurs, Dec 10 Technology Committee 12:00 noon maintained. Space available. 33 N. LCBA Office County & 325 Washington. Please call Wed,Dec 16 Criminal Law Committee 12:00 noon Ron Pollack at (847) 482-0952. LCBA Office Wed, Dec 16 Family Law Committee 12:00 noon OFFICE BUILDING FOR SALE C-105 218 N. County Street, Waukegan - Thurs, Dec 17 LCBA Board of Directors 12:00 noon 2,457 sq ft masonry building. 13 Park- LCBA Office ing spaces. City Garage across the Thurs, Dec 17 Civil Trials & Appeals Committee 5:00 p.m. street. Asking $325,000. Virtual Tour: www.tjproperties.com (847) 680- Alexs’, Lake Bluff 4740 Thurs, Dec 17 LCBA Holiday Party 5:00 p.m. Gorton Community Center,Lake Forest DOWTOWN WAUKEGAN 222 N. County Street, New Construc- January 2010 tion. 2,700 sq ft. Ample parking. Will DATE EVENT & LOCATION TIME Divide. 200 N. ML King Ave. Single Of- Tues, Jan 12 Associate Committee Post-Holiday Gathering 5:00 p.m. fice. Shared conference and lunch LCBA Office room. Space available for Secretary. Thurs, Jan 14 Professionalism Committee: Sexual Harassment 12:00 noon Basement storage. For more informa- LCBA Office tion please see www.tjproperties.com Wed, Jan 20 Criminal Law Committee 12:00 noon (847) 680-4740 LCBA Office Wed, Jan 20 Family Law Committee 12:00 noon GURNEE OFFICE, GREENLEAF C-105 New building, ready for immediate Thurs, Jan 21 LCBA Board of Directors 12:00 noon occupant build-out. 100 SF to 1500 LCBA Office SFD suite for lease. Below market rate Thurs, Jan 21 Wills Trusts & Probate Committee 12:00 noon ($10.00 /sf) 847-529-8116 Probate Courtroom DOWNTOWN WAUKEGAN Thurs, Jan 21 Civil Trial & Appeals 5:00 p.m. Former LCBA Office across the street Alexs’, Lake Bluff from the courthouse. Reception area, Thurs, Jan 28 Local Government Committee 12:00 noon 2 partially furnished private offices; LCBA Office conference room; file room with Thurs, Jan 28 – Capital Litigation (13 CLE hours) All day microwave and small refrigerator. Fri., Jan 29 Key Lime Cove, Gurnee Excellent location for start-up practice, county seat office or depositions. Upcoming Events Call 847-244-0770 DATE EVENT & LOCATION LAW OFFICE OF ANTONE, March 12 & 13 Gridiron CASAGRANDE & ADWERS P.C. Arboretum Club AV-rated immigration law firm with April 15-18 Family Law Conference offices in Michigan and Illinois. Firm Memphis, TN Principal is an Adjunct Professor of April 22-25 Real Estate Conference Immigration Law at Michigan State University Law School. Call (877) Location TBD 406-6020 or visit us online at: May 27 Civil Trial Seminar & Golf Tournament www.antoneimmigration.com Biltmore Please call (847) 244-3143 to confirm dates, To place ad, call time and location of event before you attend. If you are a Committee Chair and wish to change a meeting date (847) 244-3143 or time, please contact the LCBA Office at (847) 244-3143.
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Criminal Law Program • September 24-25, 2009