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30 April 2004 In this e-Newsletter:
President's
Column An
Important Subject for Research: Is the Cook County criminal justice system plagued by "a rising tide of prosecutorial misconduct?" If there is such a rising tide (or even if there isn’t), doesn’t the Chicago legal community and the public at large have an interest in knowing the names of prosecutors found guilty of misconduct? And, finally, when an appellate decision finds that prosecutors or defense lawyers breach the code of ethics, doesn’t the court have a duty to refer the names of the offenders to the Attorney Registration and Disciplinary Commission? The answer to the first question isn’t known – but the extent of prosecutorial misconduct is certainly an important subject for study. As to the second question, the answer is obviously "yes," but our appellate courts inexplicably take pains to keep the names of offending prosecutors out of their opinions. The third question also has to be answered in the affirmative: the court clearly has an obligation to report known ethical offenders to the ARDC for possible discipline. All three issues are posed by a decision the Illinois Supreme Court issued last October that reversed the convictions of two of the persons who were charged with the murder of a Chicago police officer and, in doing so, scathingly criticized the two Cook County Assistant State’s Attorneys who prosecuted the case. People v. Johnson, 2003 Ill. LEXIS 1497 (October 17, 2003). The Court found that the two assistants had solicited irrelevant, emotionally-charged testimony from the victim’s father and other "transparently inflammatory" testimony regarding the victim’s oath and his duties as a Chicago police officer; had made a "nakedly prejudicial" closing argument that appealed to passion and encouraged the jury to send a message of support for law enforcement by its verdict; had likened the defendant to an animal; had needlessly displayed the victim’s brain- and blood-spattered uniform to the jury; and had improperly suggested that the pain of the victim’s family could be alleviated by a guilty verdict. The Court concluded that "prosecutorial misconduct . . . permeated the trial." In its October opinion, the Court lamented what it termed a "rising tide" of prosecutorial misconduct, stating that abuses like those in the case at bar were occurring with "alarming frequency." The Court also took the unusual step of naming the two assistants who were the subject of its criticism. The Cook County State’s Attorney filed a petition for rehearing claiming that the Court was wrong to say that prosecutorial misconduct is on the rise. By the State’s Attorney’s count, trial assistants are rarely cited by reviewing courts for misconduct and, when they are, the misconduct is usually deemed "harmless error." The State’s Attorney’s petition also vigorously defended the conduct of the Assistants who had tried the case, arguing that those attorneys had not engaged in deliberate wrongdoing. The State’s Attorney specifically asked the Court not to impose the "career-limiting sanction" of naming the prosecutors in its final written opinion. In January, the Supreme Court denied the petition for rehearing and issued the final opinion. People v. Johnson, 803 N.E.2d 405 (Ill. 2004). The published decision is almost word for word identical to the original opinion – concluding, as in the original, that the prosecutors’ presentation of evidence was "transparently inflammatory;" that their closing argument was "nakedly prejudicial;" and that "prosecutorial misconduct . . . permeated the trial." In two respects, though, the opinion was modified. First, the Court omitted the assertion that there is a "rising tide" of prosecutorial misconduct. And, second, the Court deleted the names of the prosecutors from the published document. It is a serious charge to say that prosecutorial misconduct is a rising tide. And if there isn’t hard evidence to support that assertion, the Court was right to eliminate it from the opinion. Nonetheless, the Court’s initial, subjective belief, apparently, was that examples of prosecutorial misconduct are being brought to its attention with increasing and "alarming" frequency. If true, that fact would have serious implications for the administration of justice in Cook County. It would be a simple – but time-consuming – matter to examine the recent decisions in criminal appeals and find out both how frequently prosecutors are guilty of misconduct and whether the rate of misconduct is indeed on the rise. In light of the professed concerns of a majority of the Illinois Supreme Court, this is a study worth undertaking. On the other hand, the Court’s decision to withhold the names of the prosecutors can’t be justified. Prosecutors hold a public office and serve the citizens of Illinois. Whenever a court finds that a prosecutor has engaged in misconduct, the legal community and the public are entitled to know the name of the offending individual. This is a matter of particular concern to the Council of Lawyers and the other Chicago area bar associations. The Alliance of Bar Associations evaluates a number of prosecutors who are seeking to become judges. As part of that process, we ask prosecutors (and defense lawyers) to let us know whether their performance has ever been criticized in an appellate opinion. Recent experience has shown that some judicial aspirants are less than completely forthcoming in response to this question. Transparency on this issue is obviously called for. It may be, as the State’s Attorney puts it, that including the name of an offending prosecutor in a judicial opinion is "career-limiting" – in the sense that it may severely reduce that prosecutor’s chance of becoming a judge. But the availability of this information is essential for the quality and integrity of the bench. This is a higher priority than the career aspirations of a particular prosecutor. And, finally, it is clear that lawyers whose misconduct is "nakedly prejudicial" and "permeates the trial" should be reported to the ARDC for possible discipline. Of course, we don’t know whether the Supreme Court has done so with respect to the two individuals involved in the Johnson prosecution. But it is certainly to be hoped that it did. The Himmel decision probably imposes a reporting obligation on the members of the Court in these circumstances – and equally in the circumstance where a defense lawyer is found to have ethically transgressed. And surely the ARDC should consider whether disciplinary consequences are warranted when a lawyer’s behavior during a trial is found "nakedly prejudicial." From the Council: A Call For Judicial Evaluation Investigators The Council, as part of the Alliance of Bar Associations for Judicial Screening, will be evaluating candidates seeking to become Associate Judges between May and July. We need volunteers to serve as investigators. This is about an eight-hour commitment which consists of conducting phone interviews with 15 to 20 judges and those lawyers who have been opposing counsel to the candidates. Investigators prepare a written report summarizing their work and will be asked to present their report to the group of bar representatives who will interview the candidate. The Council's Judicial Evaluation Committee considers the investigator reports, the interview of the candidate, and any other relevant evidence in preparing a written evaluation for each candidate. The Council's report, including the evaluations of all associate judge candidates, is distributed to the Circuit Court judges for their review. The Circuit Court judges vote to determine who will fill each associate judge vacancy. Please contact me if you are willing to perform this important work (Malcolm Rich at 312-988-6552, fax: 312-654-8644; email: malcolmrich@chicagocouncil.org). Financial Education Project -- Comments Submitted in Response to Proposed Changes to the Community Reinvestment Act. Chicago Appleseed Fund For Justice is participating in a nationwide, collaborative project with Appleseed Centers in Kansas, Nebraska, and Texas on the subject of bringing banking services and financial education to the immigrant population in Chicago. Locally, Chicago Appleseed is partnering with the Sargent Shriver National Center on Poverty Law on a project focusing on education and advocacy. As part of this local partnership, Chicago Appleseed will be sponsoring "train the trainer" sessions through which representatives of nonprofit organizations wil be trained to provide subsequent training to members of the community on financial literacy, including banking products available in Chicago. The advocacy component of this project will include research and issuing of public comment under the Community Reinvestment Act in an effort to ensure that Chicago-area banks are delivering quality financial products and financial education in non-discriminatory ways. We also intend to work with the Sargent Shriver National Center on Poverty Law in examining the relationship between increased productivity of an employer's workforce and providing financial education and benefits to that workforce. As part of the education component of the project, Chicago Appleseed will sponsor its first train the trainer session in May, 2004. In response to proposed changes to the Community Reinvestment Act, Chicago Appleseed submitted the following commentary on April 5, 2004 to the U.S. Office of Thrift Supervision, the Comptroller of the Currency, the Federal Reserve Board of Governors, and the Federal Deposit Insurance Corporation: April 5, 2004
Council Participates in Press Conference on Civil Liberties On April 20th, the U.S. Supreme Court heard oral arguments on the President's alleged right to create a "law free zone" at the Guantanamo detention center in Cuba. On April 28th, the Court heard the case on the President's claimed right to designate citizens as "enemy combatants," and hold them at a U.S. military installation without the ability to challenge the lawfulness of their detention. On April 20th, Council President Locke E. Bowman spoke on behalf of a number of Chicago-area organizations at a press conference held to express opposition to this unchecked expansion of Presidential powers. "These Supreme Court cases represent a watershed event in our nation's history. The rule of law is being challenged and we speak out in opposition." In addition to the Council, the groups involved with this press conference were the Cook County Bar Association, the Illinois Association of Criminal Defense Lawyers, the Chicago chapter of the National Lawyers Guild and the Midwest Chapter of Amnesty International. Chicago Council of Lawyers
/ Chicago Appleseed Fund For Justice |