The BACK BENCHER Central District of Illinois Federal Defenders Vol. No. 44 Spring 2009 As part of these continuing efforts, I am pleased to DEFENDER’S MESSAGE announce that my office’s 2009 CJA Panel Attorney Seminar will be held on Friday, July 10, 2009, in As we all know, continuing Legal Education is Peoria, Illinois at the Holiday Inn City Center from essential to every lawyer, and perhaps even more so 10:00 a.m. to 3:30 p.m. The seminar will be free of for federal criminal defense lawyers. Not only is the charge and includes a complimentary box lunch. I federal law more complex than state law, but the am in the process of having the program approved consequences of a federal conviction can be for 4.5 hours of Illinois MCLE credit. Please mark extraordinarily severe. Since the Guidelines went the date on your calendar and plan on attending. It’s into effect in 1987, they have curtailed judges’ a free seminar with top A-1 speakers, free lunch, discretion and increased sentences dramatically, and free CLE credits. This is one of those rare resulting in Guideline issues being appealed more occasions when a good deal is not too good to be than any other issue in the federal Circuit Courts of true. The only qualification you need to attend is Appeal. However, as cases like Booker, that you must be a registered CJA panel attorney in Kimbrough, Gall, and Begay demonstrate, the a federal district court. federal criminal law is also very fluid. What were once mandatory Guidelines are now advisory, and Chief Judge Michael P. McCuskey will present the Guidelines’s iron grip on the federal sentencing opening remarks and be available for questions process has been loosening. What was well regarding panel issues. Our impressive faculty established law the last time we appeared in federal includes the following outstanding lawyers, court may well have gone out the window by the speaking on the topics described below: time we next appear. Accordingly, staying current with the law is critical, especially when we stop to 1. Honorable Michael M. Mihm, View from think that the liberty of our clients is at stake, and the Bench. Judge Mihm is a United States District we bear the incredible stress and responsibility to Judge in the Central District of Illinois. He know and understand the current state of the law. graduated with a B.A. from Loras College in 1964 and received his law degree from Saint Louis Of course, I understand that most panel attorneys do University School of Law in 1967. He was State’s not have the luxury of focusing all of their energy Attorney of Peoria County from 1972 to 1980, then on the study of the federal criminal law like we do. in private practice in Peoria from 1980 until being That is why our office provides publications like appointed by President Ronald Reagan to the this newsletter, writes books and articles on the federal bench in 1982. During his tenure on the federal criminal practice, takes telephone calls with bench, he has served on the very prestigious specific questions, and provides free seminars Executive Committee of the Judicial Conference addressing federal criminal practice. It is my hope and in 2004 received the USAID Oustanding that these services make it possible for every panel Citizen Achievement Citation for his work with the attorney in the Central District of Illinois to stay Russian Judiciary. Among the many high profile abreast of the important aspects of defending our cases over which he has presided during his career clients, regardless of how diverse your practice may on the bench, he is currently the presiding judge in be. the al-Marri terrorism case, which continues to receive nationwide media coverage. P 2 Spring 2009 The BACK BENCHER Judge Mihm will discuss his views on the Central District of Illinois’s special capital effective courtroom advocacy at all stages of a panel. He graduated from Bradley University in criminal case, including motions practice, trial 1965 and then earned his law degree from the advocacy skills, and effective sentencing strategies. University of Illinois College of Law in 1967. Attendees will also have a unique opportunity to participate in a question and answer session with Negotiating plea agreements is an essential Judge Mihm. Of course, common courtesy tells us part of criminal practice in federal court. Nearly that discussion of pending cases is taboo. Rarely, if 90% of all federal criminal cases result in a guilty ever, do we get an opportunity to informally discuss plea. Indeed, the reality is that very few cases ever courtroom practice with one of our federal judges. I reach the trial stage in federal court. Although trial know you won’t want to miss this opportunity. skills are still necessary for any competent federal When I was in private practice, a team of wild criminal defense lawyer, we can often do the most horses could not have kept me away from this good for our clients when negotiating a plea with seminar, even if this was the only speaker I heard. the government. Consequently, effectively But that isn’t the case because we are loaded for negotiating plea agreements is a skill that every bear when it comes to superb speakers and useful federal practitioner must possess. To help us topics. develop those skills, Tim will share with us some of his negotiating techniques developed over his many 2. Dean Strang, The Department of Justice years of experience. Tim has used his negotiating under the Obama Administration. Dean, a top “go skills in several high profile cases to the great to” defense lawyer from Milwaukee, was benefit of his clients. Wisconsin’s first Federal Public Defender. Dean is now in private practice as a criminal defense lawyer A sampling of Tim’s incomparable ability to in Madison, Wisconsin. He is a partner with negotiate will include discussion of some of his Hurley, Burish & Stanton, S.C., as well as an local, high profile cases. One example is a case adjunct professor at the University of Wisconsin involving the death of a Bradley University Law School and at Marquette University Law student/athlete. Four members of the Bradley School. He received his undergraduate degree from soccer team were charged with aggravated arson Dartmouth College in 1982 and his law degree from after they placed a Roman candle under one of their the University of Virginia in 1985. Dean has teammate’s bedroom door, which resulted in the appeared twice before the United States Supreme student’s death. Although the charge carried a six- Court, including as co-counsel and co-author of the year mandatory minimum sentence, Tim was able to respondent’s brief in United States v. Booker, which negotiate the charge down to involuntary as we all know, is the landmark decision making the manslaughter, resulting in a six month sentence Guidelines advisory. I am proud to call him a close followed by probation. In another case where a friend and former associate. Peoria Police Officer was charged with reckless homicide after he was seen intoxicated while Dean will address how the policies set by the driving a boat, which subsequently ran into a barge Department of Justice can often impact the federal killing a man, Tim was able to negotiate a dismissal criminal practice as much as the courts. From the of all charges, after an expert he retained opined that types of crimes specially targeted for prosecution, to his client may not have been operating the boat. the guidelines for negotiating plea agreements, the Finally, in a case involving a pharmacist charged insights that Dean can provide will give you tools to with possessing a large amount of cocaine, Tim was more effectively represent your clients. retained for purposes of sentencing after the defendant was already convicted. By carefully 3. Thomas J. Penn, Jr., Effective Strategies reviewing the trial record and discovering a viable for Negotiating Pleas. As those who practice in the ineffective assistance of counsel claim, Tim was Central District already know, Tim has been a able to negotiate a very favorable sentencing deal practicing attorney for over 40 years, with over 35 for his client. As these few examples demonstrate, of those years serving as the Peoria County Public Tim has vast experience at successfully negotiating Defender. At the same time, he maintains a at the pre-trial, trial, and sentencing phases of cases. thriving active private practice and is a member of There are few practicing lawyers with his skill and P 3 Spring 2009 The BACK BENCHER years of experience, and his advice on negotiating Whether it is negotiating a plea or dealing with the government on behalf of your client will be with a government breach of one, ethical questions extraordinarily useful. always arise. To help us sort through these and other common ethical questions which arise for 4. Phillip J. Kavanaugh, “Litigating criminal defense lawyers, Steve will discuss ethical Government Breaches of Plea Agreements. Phil is issues unique to federal criminal defense lawyers. currently the Federal Public Defender for the Steve’s combined experience as a professor and Southern District of Illinois. He earned his practitioner gives him a unique perspective on all undergraduate degree from the University of aspects of federal criminal practice, and ethical Missouri in 1971and then graduated from St. Louis issues in particular. University School of Law in 1977, and initially worked as a prosecutor in the states of Missouri and 6. Jonathan E. Hawley, Seventh Circuit Illinois. After going into private practice in 1982, Update.