Explanation offered for last week's order permitting note-taking in Cook County courtrooms

An FWIW reader left a link on my Facebook page to a May 16 Chicago Tribune op-ed by John Marshall Law School Professor Samuel V. Jones that may well explain why Cook County Chief Judge Timothy C. Evans entered a general administrative order last week expressly permitting the taking of notes in Cook County courtrooms. Professor Jones wrote about his experience in Judge Laura M. Sullivan's courtroom on May 8. An excerpt from Professor Jones' article:

Deputies spoke to members of the public as if they were inhuman. As one mother attempted to comfort her baby after she uttered a slight sound, one deputy yelled, "Take your baby out of the courtroom, now!" Children watched, fearfully, as their parents held them tighter. Others refused to make eye contact with the deputies. "Get out," some deputies roared.

Amazed by the unnecessary aggression, I wondered how such abusive conduct had escaped public scrutiny. Moments later, I received my answer. A deputy approached and impolitely inquired, "Are you an attorney"? I identified myself as a professor of law doing research. She responded, "There is no note-taking in here." Interestingly, the deputy had walked past a journalist taking notes in plain view.

Neither Judge Sullivan nor the deputies announced a ban on note-taking. I wondered if the deputy knew that "the right of the press to access court proceedings is derivative of the public's right," and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. "No," she replied, and walked away.

Minutes later, two male deputies ordered me out of the courtroom and said they were confiscating my notes. After I politely inquired about their authority to do so, they took me back into the courtroom. One deputy approached Judge Sullivan and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.

You'll note that Professor Jones expressly referenced checking with the Chief Judge's office and verifying that note taking would be permitted. But, until last Friday, there was no express rule. Now there is.

Professor Jones was released -- with his notes -- after about 30 minutes. That recitation may make the detention sound trivial. And I don't mean to convey that; I'm sure it was no picnic, even for a former military man like Professor Jones. His John Marshall faculty bio notes that Jones is a "former U.S. judge advocate (MAJ, USAR (Ret.)) and former rifleman/scout (SGT, U.S. Marines)." I'm sure I would have been scared witless if this had happened to me.

But Professor Jones mentions that he was sitting in on a bond court hearing. Even a civil lawyer such as myself understands that a bond court is a high volume call, with many unsavory characters being shuttled in and out. (I am not forgetting about the presumption of innocence in every single criminal case but, rather, making an assumption based on the distressing, but well-documented, high rate of recidivism, that some, and perhaps many, of the persons being brought in for bond hearings on any given day have prior criminal convictions, and perhaps multiple convictions.) The friends and family present to support the defendants whose cases are on the call may or may not have had some prior personal contact with the criminal justice system. In a city as scarred as ours from incessant gang rivalry and violence, in bond court it would seem to make absolute sense to have multiple deputy sheriffs present and in high states of alert.

None of that excuses what happened to Professor Jones on May 8. But what we can't tell from this one sorry incident is whether it was a blip -- an exception -- a combination of a number of people having a particularly bad day -- or whether it is consistent with a pervasive pattern and practice of official rudeness in the courtroom. I sure as heck am not in a position to formulate an opinion on this.

On the other hand, Judge Sullivan is up for retention this year. You can bet that the several bar associations that vet retention candidates, both the CBA and the Alliance members, will be looking into the incident reported by Professor Jones and drawing their own conclusions.

Nor should any reader presuppose what the outcome of those bar evaluations might be. Judge Sullivan was first elected to the bench in 2002. She ran for the Appellate Court in 2012 and was found Qualified by the Chicago Bar Association. (She did not participate in the Alliance evaluation process in 2012.) So readers should avoid the all-too-human temptation to lock in a good-guy, bad-guy narrative here. Maybe this is a story without bad guys. Let's wait for all the facts. There will be more to this story later.

But, in the meantime, now that we have an order expressly permitting note-taking, does the new order really always and everywhere permit note taking by anyone and everyone in Cook County courtrooms?

One of the main reasons for the general cell phone ban in criminal courthouses was to prevent witness or juror intimidation. That makes sense. In the modern age, social media can get pretty antisocial awfully fast. And maybe it's just my imagination, but I can easily imagine circumstances where "note taking" could take on sinister implications as well. I'm not talking about note-taking by lawyers or members of the press but -- well -- maybe I have the wrong kind of imagination.

But I suggest that Judge Evans considered the possibility as well. That's why -- I think -- in an order that basically provides thou shalt permit note taking in court, Judge Evans included this last sentence, "Nothing in this order shall be interpreted to interfere with a judge’s ability to ensure that court proceedings are conducted with fitting dignity and decorum and without distraction, as required by Canon 3 of the Illinois Code of Judicial Conduct, Ill. S. Ct. R. 63, or to affect the sheriff’s responsibility to maintain the safety and security of the courtroom."

In other words, I believe, even after the adoption of the new rule, it still is up to the judge and the deputy sheriffs present in the courtroom to determine whether someone is taking notes for an improper purpose, such as to intimidate, harass or frighten a witness, and to put a halt to such behavior if it is observed. There is now an express presumption in favor of note-taking, but it is not an unqualified right. Or am I missing something again?