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President's Column
In its Law Day edition for 2005, the Chicago Daily Law Bulletin published the following article by Council President, Locke E. Bowman.

As a young lawyer in 1770, John Adams was asked to defend British soldiers accused of firing into a crowd of Americans on a Boston square on a snowy evening in March and killing five men - the infamous Boston Massacre. Adams took the case and won acquittals for most of the defendants. According to David McCullough, Adams’s biographer, the future President was deeply stung by the public outcry against his work on behalf of these reviled clients; Adams claimed he lost half of his legal practice after he took the unpopular case.

But Adams never faltered in his belief that our profession has the responsibility to stand firm for the rule of law, even when popular passions are against it. McCullough reports that, looking back, in old age, on his defense of the British soldiers, Adams called that representation "one of the best pieces of service I ever rendered my country."

Our own era has no shortage of similar challenges. University of Chicago law professor Geoffrey Stone writes that we live in perilous times. And he adds that times such as these call for lawyers to assume their special role as defenders of our civil liberties.

Lawyers in the Chicago community have responded to the challenge. Several years ago a coalition of dozens of Chicago lawyers organized and devoted countless hours to a campaign to persuade the Governor of Illinois to commute the capital sentences of all the prisoners on death row – a step made necessary by the shocking record of death row exonerations in our State and the very real risk that, if the process were not halted, an innocent person might actually be executed. With the commutations granted and popular sentiment now in favor of that decision, it is easy to forget that the commutation campaign (and the lawyers involved in it) weathered a storm of criticism from prosecutors and others who were outraged at the prospect of mercy for persons convicted of heinous murders.

In the wake of September 11, in an atmosphere of widespread panic, considerable moral courage was required of the lawyers who stepped forward to represent suspected terrorists whom the federal government had detained at the Guantanamo Bay Naval Station. But those detentions presented fundamental questions about the rule of law: could the federal government indefinitely detain persons without affording them access to the courts to challenge the validity of their confinement. The Supreme Court’s decision in Rasul v. Bush firmly established that our government has no such authority to detain - even when the detainees are suspected of involvement in loathsome acts of terror and destruction.

Chicago lawyers Gary Isaac and James Schroeder, of Mayer Brown Rowe and Maw, are among the heroes in the work on behalf of the prisoners detained at Guantanamo. Isaac and Shroeder wrote a key amicus brief to the Supreme Court in Rasul on behalf of retired military officers in support of the Guantanamo detainees. They spent innumerable hours on their brief and in helping to shape the strategy for this historically significant litigation. In advocating for due process and fundamental fairness in the face of powerful popular passion to curtail those principles, Isaac and Shroeder rendered a patriotic service to our country of which our second President would have been proud.

Members of the legal community have a responsibility to speak out when the government overreaches in the so-called war on terror. When the government enacts legislation that authorizes secret warrants for the inspection of books, records and other documents from institutions – including libraries and bookstores – it falls particularly to our profession to sound the alarm that this is a wholly inappropriate intrusion. When the federal government actually issues subpoenas for records of the identity of persons attending a conference against the war in Iraq held at Drake University in November 2003, members of our profession need to raise their voices in protest.

Only the gravest emergency could justify the federal government’s intrusion upon an assembly of persons who oppose government policy. Nor can there be any legitimate reason for the federal government to snoop into the reading habits of innocent Americans. Lawyers are in a unique position to make these points clear in their public statements. And the time is certainly ripe for doing so; the re-enactment of the so-called "library provision" of the Patriot Act – the provision authorizing secret warrants for collection of records from hospitals and other businesses, including libraries – is being debated in Congress as I write this.

Similarly, when, as happened several months ago, it comes to light that high Department of Justice officials have authored memoranda purporting to justify the use of torture against suspected terrorists, lawyers have the responsibility – at a minimum – to publicly denounce this official misconduct.

The pursuit of a just society is the very soul of our profession. Especially when there are risks involved because the message is unpopular, we lawyers must let our voices be heard in favor of due process, free expression and individual privacy. Speak out on these issues. It’s part of your job.

The Chicago Council of Lawyers announce the availability of the Sixth (2005) Edition of the Directory of State Judges in Chicago

The Sixth (2005) Edition of the Directory of State Judges in Chicago provides biographical information and the judicial evaluations conducted between 1986 and 2004 by the Chicago Council of Lawyers of Circuit and Associate Judges in Cook County, and Illinois Supreme Court and Appellate Court Justices, First District.

We have been publishing the Directory of State Judges in Chicago since 1995. It is available for $30.00 a copy for Council members and contributors to Chicago Appleseed ($60.00 for others).

To order, please visit the "Publications" area of this website or contact us at 312-988-6565. You can also order your copy by email, ccl@chicagocouncil.org or by fax, 312-654-8644.

On June 3, 2005, a jury in a civil lawsuit found that seven corrections officers at the Cook County Jail did not use excessive force against four inmates in July 2000. While the jury’s verdict cleared the corrections officers of wrongdoing, the conduct of the litigation has raised concerns about officials at the Cook County Sheriff’s Office.

Chicago attorney Jean Snyder, who has successfully litigated lawsuits concerning conditions at the Cook County Jail, initially represented the four inmates. In 2004, the Sheriff accused Snyder of collaborating with the inmates to stage the beating in order to get big money in a lawsuit. The Sheriff demanded that the Cook County State’s Attorney’s Office consider criminal charges against Snyder and he also referred Snyder to the Illinois Attorney Registration and Disciplinary Committee for possible professional sanctions. These accusations were attended by extensive media coverage.

Subsequent investigations by the Cook County State’s Attorney’s Office and the Illinois Attorney Registration and Disciplinary Committee cleared Snyder of any wrongdoing. But not before Snyder had been forced to withdraw from the case as a result of the Sheriff’s accusation.

In the closing arguments at the conclusion of the trial, the Sheriff’s lawyers informed the jury that they had no reason to believe that Jean Snyder had been in any way involved in staging the beating. In the wake of the Sheriff’s highly public accusations against Snyder a little over a year earlier, this admission is, to say the least, surprising.

A fundamental component of our legal system is the freedom of litigants to choose their own attorney. An individual should be able to expect that his or her attorney will provide representation throughout the proceedings. Many would likely forego vindicating their legal rights in court if there was even a remote possibility that they would face the daunting task of changing lawyers during the litigation. Any sort of interference with the attorney/client relationship is a serious matter; improper tampering with the relationship intolerably compromises the rights of the litigant affected, perverts the court’s processes, and is corrosive to the fair administration of justice.

The Sheriff is not an ordinary participant in our justice system. The Sheriff is a public official and as such has a duty to uphold the law and to conduct his office within the law’s bounds. As a principal of Cook County’s law enforcement community, the Sheriff has a special ability to collect information and to screen that information for evidence of wrongdoing.

Snyder was forced to withdraw her representation from the four inmates because of the Sheriff’s accusations, which apparently have proved baseless. Whether or not Snyder’s representation would have made a difference in the case cannot be known, but the inmates were entitled to her representation. The question should be asked: Did the Sheriff have a good faith basis for the accusations against Jean Snyder or were the accusations designed to force her off the case?

The following letter to the media was published in
the Chicago Sun-Times on May 29, 2005

A just and common sense amendment to the law governing Illinois’ death penalty was recently defeated in a Democratically controlled Senate committee. Before the death penalty could be imposed, the bill would have required either a judge or jury to determine "…that the evidence leaves no doubt respecting the defendant's guilt." The Illinois House of Representatives passed similar No Doubt legislation last March.

Illinois’ notorious death penalty system is nationally known for its colossal failures. There have been more innocent men freed from Illinois’ death row than executions. Although several reforms to Illinois’ death penalty system have been made since a moratorium on executions was imposed in 2000, the No Doubt law would help ensure that an innocent person is never again placed on death row.

There are three phases in a death penalty case. In the guilt phase, a judge or unanimous jury determines whether the defendant is guilty of the offense. The legal standard at the guilt phase is proof beyond a reasonable doubt. If the defendant is convicted, the case proceeds to the eligibility phase where a judge or unanimous jury determines whether one or more of 21 different legal factors exist beyond a reasonable doubt such that the defendant is legally eligible to be sentenced to death. If the defendant is found to be eligible for the death penalty, the case proceeds to sentencing phase where a judge or unanimous jury must determine that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt before a death sentence may be imposed.

The No Doubt bill would have added the additional step at the eligibility phase that the judge or unanimous jury find that there is no doubt that the defendant is actually guilty of the crime. This provision would make it less likely for a death penalty to be imposed in several categories of cases that have shown to be particularly prone to error, for example, purely circumstantial cases, cases hinging on eyewitness testimony, and cases supported largely by a confession provided after a lengthy police interrogation.

It was reported that the No Doubt bill failed in the Senate because prosecutors lobbied the committee for weeks and portrayed the bill as an effective repeal of the death penalty. One prosecutor was quoted as saying that he opposed the No Doubt bill because, "Only one juror needs to say, ‘Look, I know [the defendant] did it ... but I know he's crazy.’ So they have this lingering doubt." However, even under current law one juror at the sentencing phase could decide that a defendant’s disturbed mental state constituted sufficient mitigating evidence that precluded the imposition of the death penalty. The No Doubt law would simply provide judges and juries with the option of finding the defendant guilty of the crime while withholding the ultimate and irrevocable penalty when absolute certainty of guilt does not exist.

Debate continues on whether Illinois should retain or abolish the death penalty. However, all people, including prosecutors, should be able to agree that a person should not be sentenced to death unless there is no doubt of guilt. The No Doubt bill should be revived and passed.

Chicago Appleseed Comments on Proposed Changes to the Regulation of the Community Reinvestment Act

The following was sent on April 26, 2005 to the Office of the Comptroller of the Currency in Washington, D.C. Chicago Appleseed, as part of our Financial Education Project, comments regularly on proposed changes regarding the Community Reinvestment Act.

I am writing on behalf of the Chicago Appleseed Fund for Jus tice to comment on the proposed changes to your regulation of the Community Reinvestment Act (CRA).

The key component of your proposal would alter the way that financial institutions with assets between $250 million and $1 billion would have their CRA ratings assessed. It would classify these institutions as "intermediate small banks" and subject them to a two part CRA exam consisting of the small bank lending test and a new community development test.

We are happy to see that you did not adopt the Office of Thrift Supervision position to consider all institutions with less than $1 billion in assets as "small" for CRA purposes. We believe that the current three part CRA exam for "large" institutions has been effective at improving access to lending, financial services, and community development resources for low- and moderate-income households and communities. We are pleased, however, to see that the current proposal will continue to assess an institution’s levels of community development lending, services, and investments and will require an institution receive a "satisfactory" on both the lending and community development tests to get an overall "satisfactory" CRA rating. Each of these three elements are critical to successful community reinvestment and it is important that they are examined separately within the community development test.

However, we are concerned by several parts of the current proposal. First, the community development test does not consider the location of bank branches for intermediate small banks. Institutions between $250 million and $1 billion in assets play a critical role in the delivery of financial services in low- and moderate-income and minority communities, yet many of these areas remain seriously underserved by bank branches. We believe that intermediate small banks should continue to be examined for their branch locations and for their history of opening and closing branches in LMI communities.

Additionally, while we understand that an institution’s capacity and opportunity for community development activity will be factors when assessing its performance on the community development test, we feel that an institution’s responsiveness to community needs must be the primary consideration when evaluating an intermediate small bank’s CRA performance.

Under the new proposal, the reduced attention to community development grants and investments in the performance evaluations could result in fewer grants to community organizations or investments in CDFIs. In areas where there is a substantial need for this type of activity, we hope that financial institutions will be evaluated based on the level of investments previously made as well as by institutions within their peer group.

We are also deeply concerned that intermediate small banks will no longer be required to report data on small business lending and small farm lending. These institutions are significant small business and farm lenders. It was estimated by the Federal Reserve that institutions between $250 million and $1 billion in assets made roughly 20 percent of the total dollar volume of all small business loans and 43 percent of the total dollar volume of all small farm loans in 2003. To lose data on these loans would be a devastating blow to the quality of that data set and make it increasingly difficult for both banking regulators and the public to accurately evaluate the small business and farm lending performance of both intermediate small banks and large institutions in the context of the overall small business lending market. We ask that you continue to require intermediate small banks to report this data.

Thank you for your consideration of these comments when formulating the final rule.

Chicago Appleseed Receives Grant from the Chicago Community Trust for Criminal Justice Project

On May 20, 2005, Chicago Appleseed received a $50,000 grant from the Chicago Community Trust to be used in conducting our examination of the criminal justice system in Cook County.

The project involves identifying problems and proposing meaningful solutions relating to lawyering and judicial performance. The focus of this project includes the Cook County State's Attorney's Office, the Cook County Public Defender's Office, private defense practitioners, and judges. Presiding Judge Paul Beibel, Jr., Cook County State's Attorney Richard Devine, and Cook County Public Defender Ed Burnette are cooperating with the project.

For more information about the project, please contact Malcolm Rich (312-988-6552 or caffj@chicagoappleseed.org).

Chicago Council of Lawyers / Chicago Appleseed Fund For Justice
750 N. Lake Shore Drive, Fourth Floor, Chicago, Illinois 60611
Phone: 312-988-6565 / Fax: 312-654-8644
E-mail: ccl@chicagocouncil.org or caffj@chicagoappleseed.org
Website: www.chicagocouncil.org or www.chicagoappleseed.org