12th Subcircuit roundup: Loza v. Morask

In the 12th Subcircuit race for the Devlin vacancy Democrat Pamela Loza (at left) is battling Republican Laura J. Morask (right).

The Chicago Tribune recently endorsed Loza; the Fraternal Order of Police endorsed Morask.

Both Morask and Loza have been rated "qualified" by the Chicago Bar Association. Of Morask, the CBA stated:

Laura J. Morask is "Qualified" for the office of Circuit Court Judge. Ms. Morask was admitted to practice law in Illinois in 1987 and is a highly skilled and experienced supervisor in the Cook County State's Attorney's office. Ms. Morask possesses all the requisite qualifications to serve as a Circuit Court Judge.

The CBA said this about Loza:

Pamela E. Loza is “Qualified’ for the office of Circuit Court Judge. Ms. Loza was admitted to practice law in Illinois in 1978. Ms. Loza is a sole practitioner who handles her family practice well and efficiently. She has both civil and criminal trial experience. She is bilingual and knowledgeable about diverse communities and practice issues. She is smart and organized and capable of handling any cases presented to her.

The Chicago Council of Lawyers also found Loza qualified:

Pamela E. Loza has been a lawyer since 1977. She is currently a sole practitioner specializing in family and criminal defense law. From 1984 to 2003, she handled similar cases as a lawyer in the firm of Cameron, Loza & Associates. From 1978 to 1981, she did appellate work as a Cook County Assistant State’s Attorney. Lawyers report that she has good legal ability and that she is a zealous, but fair advocate for her clients. She has substantial litigation experience. The Council finds her Qualified for the Circuit Court.

The Chicago Council of Lawyers initially found Morask "not recommended" because she failed to participate in the Alliance evaluation process. All of the other Alliance groups found likewise.

This chart shows the Alliance ratings for both Loza and Morask (click to enlarge):

In a January 11 comment to this January 9 post, Ms. Morask explained that Alliance "required their application back in the last week of August after only a short time of being available." She was unable to comply with that "strictly enforced deadline," she wrote, because she "was out of town on our only annual family trip with my husband and two teenage boys before one goes off to college."

There is no question that moving the primary from mid-March to early February created enormous time pressures for candidates and evaluators alike.

But the Chicago Council of Lawyers believed Ms. Morask's family vacation was not the only reason why she did not participate in the Alliance evaluation and it said so in this revised evaluation:

Laura Morask is running to fill a judicial vacancy in the 12th Subcircuit. For the February 2008 primary, she refused to cooperate with any of the ten bar associations comprising the Alliance of Bar Associations for Judicial Screening. As a result, she was found either Not Recommended or Not Qualified by all of these bar groups. The Chicago Council of Lawyers followed its policy of finding Not Recommended any judicial candidate who refuses to submit materials to the Council for evaluation. However, upon further analysis, it is clear why Ms. Morask refused to be evaluated by the Council – a bar group which has been evaluating judges since 1970. For the past nine years, she has been cited numerous times by both the Illinois Appellate Court and the Illinois Supreme Court for prosecutorial misconduct. As a career Cook County prosecutor, Ms. Morask has the job of upholding justice – convicting guilty defendants while upholding the ethical framework of the criminal justice system. Based on court opinions she has done the former but has ignored the latter. In 1999, the Illinois Appellate Court found that Ms. Morask "acted contrary to the spirit of discovery rules and that her conduct "troubled" the court." In 2000, the Illinois Appellate Court reversed a murder conviction and remanded for a new trial due to Ms. Morask's "pervasive misconduct" in rebuttal argument. The Illinois Supreme Court rebuked her performance in a 2001 decision. In 2002, the Illinois Appellate Court found that she engaged in "intentional and systematic misconduct" that "called into question the State's commitment to fair and just enforcement of the law." In 2003, the Illinois Appellate Court concluded that Ms. Morask misstated the law, but that her misconduct did not affect the outcome of the case. In 2004 an Illinois Appellate justice described Ms. Morask’s courtroom statements as "uncivil and overly sarcastic, if not downright boorish" and had "no place in a trial." In 2006, the Illinois Appellate Court in an unpublished decision found that Ms. Morask's closing argument mischaracterized the evidence to the jury. The Council believes that Ms. Morask’s history demonstrates that she cannot be impartial as a judge and we change our finding to Not Qualified.

I have been able to confirm that Morask was criticized by the Appellate Court for "prosecutorial excess" in People v. Griffith, 334 Ill.App.3d 98, 777 N.E.2d 459 (1st Dist. 2002), and that her trial conduct came under unfavorable scrutiny by the Illinois Supreme Court in People v. Moss, 205 Ill.2d 139, 792 N.E.2d 1217 (2001). It may be that none of the other cases cited by the Council were published. (The Appellate Court disposes of many cases in unpublished orders pursuant to Illinois Supreme Court Rule 23.)

Non-lawyers may be surprised to learn that lawyers seeking judicial office are expected to disclose instances where they've been criticized by a court -- to tell on themselves -- but that does not explain how the Council would have had access to unpublished orders critical of Ms. Morask, assuming that Ms. Morask refused to cooperate with the Council, as the Council report states.

Loza and Morask were both rated "qualified" by the Northwest Suburban Bar Association for the February primary.

Both Morask and Loza have posted statements about their candidacies on Cook County Clerk David Orr's website. Here is Loza's statement; this is a link to Morask's statement. Ms. Morask was one of several primary candidates who submitted a statement to this blog in her own words.

Ms. Loza's campaign website is www.lozaforjudge.com. Ms. Morask's website is electlaura.net.

Should Cook County retention judges be nervous about "no" votes?

Although the judges up for retention this year, and their friends and families, are surely paying close attention, there are not a lot of experts who can give advice or counsel about their situation.

I am aware of one: Albert J. Klumpp, PhD, a research analyst with McDermott Will & Emery LLP. Dr. Klumpp responded to a number of posts here during the primary season, and, more recently, when I brought up the topic of retention judges (in this post) Klumpp commented:

The judges have nothing to worry about. In fact, because of the almost certain high Chicago turnout of Obama supporters, I believe that approval rates may well break the all-time Cook County record of 80.5% (median, 1972). Casual voters, and minorities, are relatively more likely to cast all-yes votes on retention slates. In addition, the elimination of straight-party voting and the shift away from punch cards have also given indirect boosts to approval rates. I would be VERY surprised if any judge is seriously threatened in this election.

These are points that Dr. Klumpp made in an October 2006 Illinois Bar Journal article, "Voter Information and Judicial Retention Elections in Illinois," 94 Ill.B.J. 538 (membership required). A footnote to that article informs us that Dr. Klumpp wrote "the first doctoral dissertation ever... on judicial retention elections."

But I just can't be as confident. Consider this post on the very popular Second City Cop blog. There, the anonymous SCC says:

We have a fun tradition when voting for judges in Cook County. We run down the list of judges and vote "no" for each and every one of them. * * * Every "no" vote means the judge has to garner something along the lines of 3 additional "yes" votes, so if every SCC reader voted "no," we might be able to effect some tiny change by throwing sand in the gears of the Machine.

As of this evening, according to Sitemeter, SCC averages 8,576 readers per day. It may well be that SCC is a long-standing member of that group of 10-15% of voters who vote "no" on every retention judge at every election. Certainly some of the people who left comments on that SCC post are regular "no" voters.

Still, persons wishing to support the retention bids of qualified judges should remember to express that support at the polls.

Final Alliance ratings on Cook County retention judges

The Hellenic Bar Association ratings are now in and the The Alliance of Bar Associations for Judicial Screening ratings for retention judges in the November election is now complete. Here are the final grids (click any page to enlarge):


The Alliance of Bar Associations for Judicial Screening is comprised of the Asian American Bar Association, Black Women Lawyers’ Association of Greater Chicago, Chicago Council of Lawyers, Cook County Bar Association, Decalogue Society of Lawyers, Hellenic Bar Association, Illinois State Bar Association, Lesbian and Gay Bar Association of Chicago, Puerto Rican Bar Association of Illinois, and Women’s Bar Association of Illinois working collaboratively to improve the process of screening judicial candidates in Cook County, Illinois.

Trib turns thumbs down on four retention candidates

In an October 15 editorial the Chicago Tribune advised voters to reject the retention bids of four Cook County jurists, Evelyn Clay, Vanessa Hopkins, Edward Pietrucha, and Casandra Lewis.

The Tribune encouraged 'yes' votes for all the other Cook County Judicial candidates.

Of the four candidates rejected by the Tribune, both the Chicago Bar Association and the Chicago Council of Lawyers agreed that Judges Clay, Hopkins and Lewis do not merit retention. More information about these judges, including the CBA and CCL comments about them, can be found at this post.

Judge Edward N. Pietrucha's page on the Cook County Retention Judges Website can be accessed by clicking here.

The Asian American Bar Association, the Black Women Lawyers' Association of Greater Chicago, the Decalogue Society of Lawyers and the Puerto Rican Bar Association all endorse Judge Pietrucha's retention. However, the Chicago Council of Lawyers stated:

Hon. Edward N. Pietrucha was elected to the bench in 1996. He began his judicial career with an assignment to the First Municipal District. Since 1998, he has sat in the Juvenile Justice Division, where he has been a floating judge since January 2002. Judge Pietrucha is considered to be a smart and hard working judge. However, during his evaluation, many judges, defense counsel, prosecutors, and probation officers expressed outrage at the temperament displayed by Judge Pietrucha. He is reported to exhibit bullying behavior toward lawyers, children, and their parents and guardians. Some lawyers commented that he can be inconsistent in his rulings. Others commented that he inappropriately does not take into account the recommendations of probation officers – an important part of the juvenile justice system. The Council finds him Not Qualified for retention.

The Chicago Bar Association recommended that Judge Pietrucha be retained, but its evaluation was not entirely complimentary:

Judge Edward N. Pietrucha is "Qualified" for retention as a Circuit Court Judge. Judge Pietrucha was admitted to practice law in Illinois in 1989 and was elected to the Circuit Court in 1996. Judge Pietrucha is currently assigned to the Juvenile Justice & Child Protection Department of the Circuit Court. While Judge Pietrucha knows the law, serious concerns were raised about his temperament, which reflects a disregard and disrespect for the litigants and lawyers who appear before him.

Update on Con Con ballot suit

The battle has moved into the Appellate Court, and may soon be moving directly to the Illinois Supreme Court, according to this update from Steve Merican.

According to the above linked post, on Merican's Illinois Appellate Lawyer blog, Merican has been retained by the individual plaintiffs in the ballot suit to file a motion to bypass the Appellate Court and proceed immediately to the Illinois Supreme Court.

Triggering the decision, according to Merican's blog, was an order from the First Appellate District on the plaintiff-appellants' motion for an expedited briefing schedule. The order, entered October 8, gave the government agency defendants until October 14 to respond to the motion and set hearing on the motion for October 15. Only then would the Appellate Court decide whether to expedite the case.

This is a whirlwind timetable in almost any case -- but, as persons following this case already know, state and local election officials were protesting to the trial court, before the end of September, that it was already too late to correct the ballot. At some point, and presumably at some point soon, even if that claim was once exaggerated, it must certainly become true. And yet, as Judge Howse ruled on October 1 that language framing the question for Illinois voters was "downright misleading" and unconstitutional.

Michael Ian Bender appointed to 9th Subcircuit vacancy

The Illinois Supreme Court has named Cook County Public Administrator Michael Ian Bender to a 9th Subcircuit vacancy created by the resignation of Judge William Patrick O'Malley. The appointment, effective November 8, will terminate on December 6, 2010.

In addition to his service as Cook County Public Administrator, Bender is a member of the firm of Nadler, Pritikin, and Mirabelli, LLC. According to the Chicago Daily Law Bulletin article noting the appointment, Bender was a previously a partner in the firm of Bender & Bender, from 1993 to 2004. He has served as a prosecutor for the Village of Skokie and was President of the Skokie Park Board of Commissioners from 2001 to 2005.

The Nadler, Pritikin and Mirabelli website notes that Bender is a past president of the Decalogue Society of Lawyers, that he has served "as a Board Member for the North Shore Center for the Performed Arts and is currently an Executive Board Member of the Holocaust Memorial Foundation of Illinois."

Looking more at the retention evaluations

In a post earlier today I mentioned that the Chicago Bar Association singled out four judges (out of 68 Circuit judges evaluated in all) as "not qualified" for retention: Anthony Lynn Burrell, Evelyn B. Clay, Vanessa A. Hopkins, and Casandra Lewis. Voters trying to decide if they will vote according to the CBA's assessment may also want to look at the ratings these judges received from the Alliance of Bar Association ratings.

Also, voters can look at what has been posted on behalf of these judges on the Cook County Retention Judges website.

Through the miracle of the Internet, we can pull all this information together here. (Click on the individual's highlighted name in order to link to that judge's information on the Retention Judges' website.)

Judge Anthony Lynn Burrell

The Chicago Bar Association (CBA) gave this explanation for its "not recommended" rating:

Judge Anthony Burrell is “Not Recommended” for retention as a Circuit Court Judge. Judge Burrell was admitted to practice law in Illinois in 1989 and elected to the Circuit Court in 2002. Judge Anthony Burrell has problems with punctuality and absences. In addition, Judge Burrell is poorly organized which affects his ability to run a high volume courtroom.

The Chicago Council of Lawyers found nine of the 68 retention candidates "not qualified." But it found Judge Burrell "qualified":

Hon. Anthony Burrell was elected to the bench in 2002 and currently sits in the First Municipal District, hearing civil non-jury trial cases. He has in the past presided over forcible entry and detainer cases. Before his election to the bunch, he worked with the Chicago Public Schools as a consultant, as a solo practitioner, and as an Assistant Cook County State's Attorney. Judge Burrell is reported to be doing well in his current high volume court call. He is considered to have good legal knowledge and temperament. The Council finds him Qualified for retention.

Judge Burrell was also recommended for retention by each of the other Alliance members who have so far issued a rating -- the Asian American Bar Association, the Black Women Lawyers’ Association of Greater Chicago, the Cook County Bar Association, the Decalogue Society of Lawyers, the Illinois State Bar Association, the Lesbian and Gay Bar Association of Chicago, the Puerto Rican Bar Association of Illinois, and the Women’s Bar Association of Illinois. (As of this writing, the Hellenic Bar Association has not issued a rating for Judge Burrell.)

Judge Evelyn B. Clay

The CBA gave this explanation for its "not recommended" rating:

Judge Evelyn B. Clay is "Not Recommended" for retention as a Circuit Court Judge. Judge Clay was admitted to practice law in Illinois in 1981 and was elected a Circuit Court Judge in 1996. Judge Clay is currently assigned to a felony courtroom in the Criminal Division. Concerns were raised about Judge Clay’s knowledge of the law and poor judgment in making insensitive comments from the bench.

The Chicago Council of Lawyers agrees:

Hon. Evelyn B. Clay was initially assigned to the First Municipal District after her election to the Circuit Court in 1996. In 1997, she was transferred to the Felony Trial Division, where she sat in the Evening Narcotics Section and as a floating judge. She has been in her present assignment, hearing felony trials, since April 2000.

However, Judge Clay's retention bid has been endorsed by every other member of the Alliance of Bar Associations.

Judge Vanessa A. Hopkins

The CBA gave this explanation for its "not recommended" rating:

Judge Vanessa A. Hopkins is "Not Recommended" for retention as a Circuit Court Judge. Judge Hopkins was admitted to practice law in Illinois in 1994 and was elected to the Circuit Court in 1996. Judge Hopkins’ lack of legal experience and legal knowledge is a concern. Judge Hopkins is extremely slow and prone to giving very long continuances for a call that should move more quickly. There is a general report by lawyers who appear before her that she has a temperament problem and takes challenges or questions personally. Judge Hopkins also has problems with being on time and seems unable to figure out what she needs to do to efficiently and effectively manage her court call.

The Chicago Council of Lawyers also found Judge Hopkins "not qualified":

Hon. Vanessa A. Hopkins was first assigned to the Traffic Division following her election in 1996. She has been assigned to Juvenile and Municipal Districts, and presently hears jury cases in the First Municipal District. Judge Hopkins came to the bench with just two years of legal experience. In her 2002 evaluation, the Council questioned her ability to manage her call. In her 2008 investigation, while some lawyers say she has improved, there are continuing negative reports about her courtroom management. Lawyers complain that she too often loses control over her courtroom, has an imperfect temperament, and is sometimes not punctual. The Council finds Judge Hopkins Not Qualified for retention.

On the other hand, except for the Lesbian and Gay Bar Association of Chicago, all the other Alliance members have recommended Judge Hopkins for retention.

Judge Cassandra Lewis

The CBA gave this explanation for its "not recommended" rating:

Judge Casandra Lewis is "Not Recommended" for retention as a Circuit Court Judge. Judge Lewis was admitted to practice law in Illinois in 1991 and was elected to the Circuit Court in 2002. Judge Lewis has problems in a number of areas including starting her call on time and diligently carrying out her duties on the bench. Judge Lewis needs to improve her work ethic and was less than respectful of the bar associations’ peer review process.

The Chicago Council of Lawyers had this to say in finding Judge Lewis "not qualified":

Hon. Cassandra Lewis was elected to the bench in 2002. She currently hears jury and bench trials in the First Municipal District. Prior to becoming a judge, she spent nine years in private practice and two years as an Assistant Kane County State's Attorney. Judge Lewis has adequate legal ability for her current assignment and is praised for her temperament. She receives mixed reviews, however, for her work ethic -- many lawyers complain she is not well-prepared and is often not punctual in taking the bench. The Council has received reports that some lawyers will take a substitution of judge rather than appear before her. The Council finds her Not Qualified for retention.

Many of the Alliance members agreed with these evaluations: The Decalogue Society of Lawyers, the Illinois State Bar Association, the Lesbian and Gay Bar Association of Chicago, the Puerto Rican Bar Association of Illinois, and the Women’s Bar Association of Illinois all declined to endorse Judge Lewis' retention bid. On the other hand, the Asian American Bar Association, the Black Women Lawyers’ Association of Greater Chicago, and the Cook County Bar Association have recommended Judge Lewis for retention.

Alliance posts evaluations so far in retention races

The Alliance of Bar Associations has nearly completed its evaluation of all 70 Circuit and Appellate judges seeking retention in Cook County on November 4. Only the Hellenic Bar Association has yet to finish weighing in on the retention judges; when I receive that organization's evaluations, I will post it as well.

The ISBA's Joyce Williams, who organizes the process of collating and distributing all this information for the Alliance, said in an email, "Since we are sensitive to the fact that many voters would prefer a composite rating, we included a percentage column of favorable ratings from those Alliance members who have submitted ratings." In looking at the grids that follow (and, please, click to enlarge each grid in order to read it more easily), the percentage of favorable ratings is the number in the first left column after the judge's name.

There are two initial things that should be kept in mind while evaluating these grids. First, an impressive majority of judges seeking retention was recommended for retention by each of the Alliance bar associations. Second, while some bar associations differed with each other (and with the Chicago Bar Association) over the merits of particular retention candidates, every single judge up for retention this year was found qualified by one or more of the bar associations that investigated the judges' credentials.

Here, then, are the Alliance grids as of today's date:



This list is in alphabetical order. The ballot order will be different. Ms. Williams mentioned that, "The Chicago Council of Lawyers/Appleseed For Justice has their 'voteforjudges.org' website up and running." That site, she said, "does show ballot order with 'yes' and 'no' punch numbers to answer the 'should this judge be retained' question."

The Alliance of Bar Associations for Judicial Screening is comprised of the Asian American Bar Association, Black Women Lawyers’ Association of Greater Chicago, Chicago Council of Lawyers, Cook County Bar Association, Decalogue Society of Lawyers, Hellenic Bar Association, Illinois State Bar Association, Lesbian and Gay Bar Association of Chicago, Puerto Rican Bar Association of Illinois, and Women’s Bar Association of Illinois working collaboratively to improve the process of screening judicial candidates in Cook County, Illinois.

CBA posts ratings for Cook County retention judges

The Chicago Bar Association has published its ratings for Cook County retention candidates on the November 4, 2008 ballot.

That link will take you to the entire 38 page report.

In summary, both Appellate Court justices seeking retention, Michael J. Gallagher and Margaret Stanton McBride, have been rated qualified by the CBA, as have all but four of the 68 Circuit Court judges seeking retention. The four judges singled out by the CBA as "not qualified" for retention are Anthony Lynn Burrell, Evelyn B. Clay, Vanessa A. Hopkins, and Casandra Lewis.

The linked report also contains the CBA's ratings for all other candidates running for judge this November, including those who are running in contested races. I'll post more about the CBA ratings soon.

First "friend to friend" card of the season -- and it doesn't come in the mail

I received a "friend to friend" card the other day, this one encouraging me to support the retention efforts of Judge Lewis Michael Nixon, pictured at right.

Friend to friend cards are sent at every election cycle by friends and family of judges hoping to retain their posts. This is frequently done on behalf of individual judges in addition to the joint effort on behalf of all retention candidates. (I recently wrote about the joint retention campaign.)

A lot of voters will receive postcards touting one judge or another from parents of their kids' high school classmates, church members, or from persons with whom they only otherwise correspond at the Holidays. The theory is that a voter receiving such a card will think, "Jane Smith says Judge Jones is a good egg, so I'll remember to vote for her on Election Day."

I don't know if the effectiveness of these cards has or even could be established. But I do know that this particular card, supporting Judge Nixon, was unusual because it didn't come in the regular post; it was delivered by email. In fact, the picture I've used here of Judge Nixon was clipped from that email. The poor job of editing out the background is, alas, mine.

I called the lawyer (a colleague of long-standing) who sent me the email (e-card?) to ask where he got the idea and whether he thought that e-cards might quickly become the norm for this sort of campaigning. My colleague decided he would rather not be quoted, so I'll have to venture my own prediction: This will catch on.

A postcard can only convey a limited amount of information. The e-card received on behalf of Judge Nixon conveyed that same sort of information in the text of the email itself, including the personalized endorsement, but (thanks to the miracle of attached files) there was a also a two page flyer in the ubiquitous Adobe format containing an expanded biography of the judge and a plug for the campaign on behalf of and a cite to the website supporting all the Cook County retention judges. The busy voter can easily explore the claims made on behalf of the candidate by his or her emailing friend -- and the candidate is spared the expense of postage. Yes, this will most certainly catch on.

Laura Morask gets FOP Endorsement in 12th Subcircuit

Twelfth Subcircuit Republican Circuit Court candidate Laura Morask's campaign advises that Ms. Morask has been endorsed by the Fraternal Order of Police, Chicago Lodge No. 7.

I will confess to 'sitting' on this announcement for awhile because I was hoping to hear back from the FOP regarding any endorsements it may have made in other judicial races. When and if I do, I will be pleased to post them here.

Con Con ballot ruling may put voters on notice

Circuit Court Judge Nathaniel R. Howse, Jr. ruled late this afternoon that Illinois election officials won't have to reprint new ballots, but both the "explanation" and "notice" provisions of the Con Con ballot proposition are misleading and unconstitutional. (For more about these provisions, read this post.)

Judge Howse's decision came at the end of a four hour hearing at the Daley Center on suits brought by the Chicago Bar Association and individuals Robert Costello, et al.

The court directed the parties to discuss and, if possible, reach agreement before the next hearing on the wording of a curative notice that could be handed to voters when they enter the polling place. Judge Howse has set that next hearing for Friday morning at 9:00 a.m.

Today's hearing was conducted in Judge Alfred Paul's larger courtroom in order to handle the overflow crowd. In addition to the many attorneys, and some of the individual plaintiffs in case no. 08 CO EL 11, there were a number of reporters and several worried employees of the Chicago Board of Elections and the Cook County Clerk's office. Clerk David Orr arrived in person late in the afternoon.

Counsel for the Chicago Board of Elections, James M. Scanlon; Orr's attorney, Assistant State's Attorney Donna M. Lach; and Assistant Attorney General Thomas A. Ioppolo, on behalf of the State Board of Elections and Illinois Secretary of State Jesse White, tried to explain to the court why the election officials were nervous.

"Voting technology," Scanlon told the court, "has outstripped the law." With the old punch card system, a last minute change in the ballot could be accommodated by taping over lines in the ballot booklet, or pasting a new page on top of an old one, but these techniques would not work with optical scan ballots, the voting method used by over 80% of Cook County voters. Election laws, which allow for last minute changes, have not been revised to accommodate these new realities.

Lead CBA counsel Steve Pflaum charged that the election authorities were simply "digging in their heels" and "saying no, no, no," to all proposed corrective measures. He tried to strike a conciliatory note: It was understandable, he said, that the election officials "are reluctant to clean up a mess" made by others. The CBA doesn't see itself as being adverse to the election authorities; it wants to work with them to provide a fair election that won't be subject to challenge because of unconstitutional ballot language. "We can salvage this election," Pflaum told the court.

But Tom Ioppolo warned that challenges to the election would probably arise from whichever side loses the November election. In the meantime, he insisted, there are "no good alternatives" to moving forward with the ballot as already designed.

But the Con Con ballot was designed in stages. The language of HJR 137, adopted by the Secretary of State, did not contain the "notice" language that incorrectly tells voters that a failure to vote on the Con Con proposition is equivalent to a "no" vote. Bruno Behrend, counsel for the Costello Plaintiffs and a co-founder of the Illinois Citizens Coalition, stressed how the "notice" language was added on by the State Board of Elections -- and how his group was told that this language would not be included for a couple of weeks after it actually was added.

Pflaum noted that the State and the election authorities focused their arguments today on the remedy that should be given for the constitutional violations. However, Pflaum argued, altogether too much emphasis was placed on why ballots could not be reprinted at this late date and not nearly enough on other possible corrective measures. Scanlon did lay out for the court an elaborate explanation as to what would be involved in reprinting the ballots, from the problems in getting the right kind of paper for the sensitive scanners, to the time necessary to test the new ballot with each individual scanner before they could be delivered to the polling places. And Scanlon cautioned the court that a solution that might work for Chicago or Cook County might not work for election officials elsewhere in the State: Many different vote counting systems are in use.

Lt. Gov. Pat Quinn, who intervened on the Plaintiffs' side, forcefully advocated the use of a separate paper ballot. Paper ballots, he noted, were used in the 1968 vote that resulted in the call for the 1970 Constitutional Convention. Paper was used for the ballots by which the new Constitution was ratified. But Donna Lach worried that there would be a huge burden placed on polling place officials in issuing and keeping track of a separate paper ballot. Also, she noted, forcing a second, separate Con Con ballot on voters might force people to vote on the proposition who did not want to or else disclose their intention to bypass the proposition to all others present. The scan card and the paper ballot would not be deposited in the same box so it would be obvious if the paper ballot were not returned.

In ruling that the 75-25 language in the "explanation" was improper and in finding the "notice" language "downright misleading," Judge Howse expressly rejected the laches arguments raised by the named Defendants and the Cook County Clerk. However, Judge Howse also rejected the CBA's argument that the participation of the legislature and the State Board of Elections in getting the Con Con call on the ballot was itself improper. True, he said, the Constitution did say that the Secretary of State was the proper authority to certify this question to the ballot -- but the Constitution did not say how this must be done or lay out every step. The Secretary of State was set up as an authority of last resort in case the legislature failed to put the question to the voters on its own.

Will a separate explanatory notice, trying to correct the misleading statements supplied by both the General Assembly and the State Board of Elections, really make this election fair? Or will it only compound voter confusion?

Iowa Court of Appeals reverses Mette conviction

The Iowa Court of Appeals today reversed the assault causing serious injury conviction against Chicago Police Officer Mike Mette. Here is a link to the court opinion.

An excerpt (slip opinion at p. 9):

As Michael raised the defense of self defense, it was the State’s burden to prove beyond a reasonable doubt that such defense was not available to him. Rubino, 602 N.W.2d at 565. A close review of the record confirms the district court’s findings are all supported by the testimony, except the finding that Michael had an opportunity to retreat. The court clearly found Mette “was not the initial aggressor” and “[i]t was reasonable under the circumstances to believe that harm might come to any one of the individuals standing outside on the street.” However, there is absolutely no testimony from any of the witnesses to support the district court’s findings:

What the defendant failed to do however, was to retreat from the situation to avoid any problems. All any of the six had to do was get in the car, go inside the house, or walk away and call the police about the disturbance.

After being pushed and knocked backwards two or three times, there was nothing in the record to indicate Michael could have avoided Gothard’s next blow, without his defensive punch. While it may be possible to speculate on Michael’s ability to retreat, the record is utterly void of any testimony to support that assumption.

Con Con ballot wording suit back in court on Wednesday

Separate suits filed by the Chicago Bar Association and Robert Costello et al. have been consolidated and are set for "hearing on the merits" on Wednesday, October 1, according to a copy of a September 25 order provided to For What It's Worth by Steven F. Pflaum, Chicago Bar Association General Counsel and a partner at McDermott Will & Emery.

Stephanie Potter wrote about the CBA's suit in the September 23 edition of the Chicago Daily Law Bulletin. Her story emphasized that the CBA has not taken a position for or against the calling of a new Illinois Constitutional Convention. Potter wrote, "The group says it brought the suit only to ensure that the referendum is fair and comports with the Constitution and Illinois law."

The CBA has raised two primary objections to the ballot language. The first of these concerns the "explanation" that will, pending the outcome of these suits, precede the actual "yes" or "no" question about calling the convention. Although the explanatory language may be found on the Secretary of State's website, the language actually comes from House Joint Resolution 137. Here is the controversial language:

Explanation of Proposed Call
This proposal deals with a call for a state constitutional convention. The last such convention was held in 1969-70, and a new Constitution was adopted in 1970. The 1970 Illinois Constitution requires that the question of calling a convention be placed before the voters every 20 years. In 1988 the electors rejected the call for a constitutional convention, with 75% voting against calling a convention and 25% voting in favor of calling a convention. If you believe the 1970 Illinois Constitution needs to be revised through the convention process, vote “YES” on the question of calling a constitutional convention. If you believe that a constitutional convention is not necessary, or that changes can be accomplished through other means, vote “NO” on the calling of a constitutional convention.

There was also an "explanation" on the 1988 ballot, but it was significantly different... and shorter (click to enlarge):

(This image comes from the Champaign County Clerk's blog, found at the indispensable Capitol Fax Blog.)

The CBA's second objection is to the "Notice" that would accompany the Con Con ballot question. Pursuant to statute (10 ILCS 5/16-6), the Notice would read (the caps being in the statute itself):

THE FAILURE TO VOTE THIS BALLOT IS THE EQUIVALENT OF A NEGATIVE VOTE. (THIS IS NOT TO BE CONSTRUED AS A DIRECTION THAT YOUR VOTE IS REQUIRED TO BE CAST EITHER IN FAVOR OF OR OPPOSITION TO THE PROPOSITION HEREIN CONTAINED.)

WHETHER YOU VOTE THIS BALLOT OR NOT YOU MUST RETURN IT TO THE ELECTION JUDGE WHEN YOU LEAVE THE VOTING BOOTH.

The objection to the "explanation" is that it is not authorized by statue. Here, though, the "notice" is prescribed by statute. However, the CBA alleges, that the statement is nevertheless incorrect because "Article XIV, Section 1(c) of the Illinois Consitituion provides that one of the ways in which a Constitutional Convention can be held pursuant to an automatic call if it is 'approved by three-fifths of those voting on the question.'" The CBA contends that a failure to vote is "not equivalent to a negative vote for purposes of determining three-fifths of those voting on the question."

Many people will enter the polling booth on November 4 just to vote in the presidential contest. People will stop voting at various points down the ballot; if history is any guide, the dropoff from the top of the ballot (the presidential election) to the bottom of the ballot (the Con Con question) will be very significant.

Just by way of illustration, the judge who will conduct the hearing in the Con Con ballot suit on Wednesday is Judge Nathaniel R. Howse, Jr. He was on the retention ballot in 2004. He easily won retention at the time, getting 77.3% of the votes cast: 886,859 "yes" votes and only 260,655 "no" votes. That's a total of 1,147,514 voters who exercised their right to vote on Judge Howse's retention. But just over two million voters made selections in the presidential race at the other end of that 2004 ballot.

If non-votes in a judicial retention race were counted as "no" votes then Judge Howse would have received no better than a 43.3% "yes" vote -- far short of the 60% required for retention. (I assume in these calculations that the total number of votes cast is equal to the total number of votes cast for president. That's not necessarily so: In any given election, some people will return ballots that are entirely blank. Others may bypass that race but vote in other contests. But these numbers are not large.)

Why would there be a different rule for calculating 60% on the question of calling, or not calling, a constitutional convention? The "notice" language prescribed by §16-6 of the Illinois Election Code would provide the reason... except that does seem at odds with Article XIV, §1(c) of the Illinois Constitution:

(c) The vote on whether to call a Convention shall be on a separate ballot. A Convention shall be called if approved by three-fifths of those voting on the question or a majority of those voting in the election.

One of the things that the Secretary of State and the Board of Elections will presumably attempt to explain, in their papers, is why the notice language of §16-6 is in harmony with the constitutional provision. The defendants' responses are scheduled to be filed and served by Monday afternoon.

Judges seeking retention link up with website

In previous posts I've mentioned that there are very few contested judicial elections in Cook County this year.

But that doesn't mean there won't be a lot of judges on the ballot.

Indeed, in addition to the uncontested races, Cook County voters will find that there are 68 judges seeking retention to either the Circuit Court of Cook County or the First District of the Illinois Appellate Court.

Every six years full circuit judges in Illinois must seek the voters' permission to remain in office. It is a "yes" or "no" proposition. Judges who fail to receive a 60% "yes" vote lose their positions.

Generally -- usually -- most judges who seek retention are in fact retained. But the most widely respected judges, the ones most universally acclaimed for their legal acumen and temperament, the ones who exhibit the deepest scholarship and sharpest intellect -- in a typical year, even these paragons will receive only around an 85% "yes" vote.

Solomon would do no better than about 85%.

What this means is that, in each election cycle, there is a hard core group of people voting "no" on the retention of every single judge. In a high turnout election, with a volatile electorate -- well, it's understandable that the judges get nervous.

Frankly, if the naysayers ever got their way, chaos would result: While the Supreme Court can fill vacancies, the newspapers and civic groups might howl in protest if judges booted off the bench were put back on by the Court. The loss of continuity and institutional knowledge would be considerable. And, truth to tell, the very least of the judges seeking retention has in fact been doing the job for at least six years. Every new judge has to be trained.

So the judges up for retention have, in recent years, banded together and have allowed a committee to be formed on their behalf. The purpose of the Committee -- this year called the Committee for Retention of Judges in Cook County, 2008 -- is to seek a "yes" vote from every voter for every judge. Money is raised for this purpose and ads will be bought and mailings conducted.

Full disclosure: I have contributed to the Committee this year.

And, this time out, the retention judges even have a website on which you will find individual biographies for each of the judges seeking retention.

Cook County judges seeking retention this year are:

Gerald C. Bender
Andrew Berman
Margaret A. Brennan
Eileen M. Brewer
Janet Adams Brosnahan
James R. Brown
Anthony L. Burrell
Diane Gordon Cannon
Evelyn B. Clay
Mary Ellen Coghlan
Sharon Johnson Coleman
Clayton J. Crane
John T. Doody, Jr.
Lynn Marie Egan
Richard J. Elrod
Candace Jean Fabri
Peter A. Felice
Thomas E. Flanagan
James Patrick Flannery
John J. Fleming
Rodolfo "Rudy" Garcia*
James J. Gavin
Robert E. Gordon*
Vanessa A. Hopkins
Rickey Jones
Themis N. Karnezis*
Kathleen G. Kennedy
Kerry M. Kennedy
William G. Lacy
Marjorie C. Laws
Casandra Lewis
Thomas J. Lipscomb
Noreen Valerie Love
Michele Francene Lowrance
Patricia Martin
Mary Anne Mason
Veronica B. Mathein
Carol Pearce McCarthy
Barbara A. McDonald
Sheila McGinnis
Dennis Michael McGuire
Kathleen Marie McGury
Barbara M Meyer
Mary A. Mulhern
Lewis Michael Nixon
William T. O'Brien
Lawrence O'Gara
Sandra Otaka
Sebastian Thomas Patti
Edward N. Pietrucha
Edmund Ponce de Leon
James L. Rhodes
Barbara Ann Riley
James G. Riley
Cheryl "Hillard" Starks
David P. Sterba
Jane Louise Stuart
Laura Marie Sullivan
Donald Joseph Suriano
Shelley Lynn Sutker-Dermer
Michael P. Toomin
Sandra Tristano
Valarie E. Turner
Raul Vega
Kenneth J. Wadas
Shelli D. Williams-Hayes
Gregory Joseph Wojkowski
Frank G. Zelezenski

Judges marked with an asterisk (*) by their name are sitting by appointment on the Illinois Appellate Court. In addition, Justices Michael J. Gallagher and Margaret Stanton McBride are seeking retention on the Illinois Appellate Court.

Prior to the November 4 election the various bar associations will weigh in with their views as to the qualifications of each of the judges seeking retention. The newspapers have traditionally expressed opinions on this as well. The overwhelming majority -- virtually all, if not all -- of the jurists seeking retention will be endorsed by the bar groups and newspapers.

Brennan selected as Associate Judge in DuPage

It's been a good week for the Loyola University Law School Class of 1993. Winston & Strawn partner Ray Mitchell was appointed to the Cook County bench earlier in the week. Now comes word that a classmate, Liam C. Brennan, has been elected an Associate Judge in DuPage County.

Brennan has been with the DuPage County State's Attorneys office. His undergraduate degree was earned in 1989 at Notre Dame.

Maureen Masterson-Pulia website provided

In a my recent post about the few contests for judicial office in Cook County this coming November, I mentioned that I could find no website for 4th Subcircuit Republican candidate Maureen Masterson-Pulia.

I have today received an email from the Masterson-Pulia campaign advising that the candidate does indeed have a website and providing the link to prove it. (Clicking on that link will take you to maureenforjudge.com.) I stand corrected.

Ms. Masterson-Pulia's opponent in November is Democrat Pat Rogers.

Supreme Court appoints Winston & Strawn partner

The Illinois Supreme Court has named Raymond W. Mitchell, a partner at Chicago's Winston & Strawn LLP, to the Cook County bench to fill the vacancy created by the retirement of Judge Marsha D. Hayes.

The appointment, effective October 14, will terminate on December 6, 2010, according to a press release today from the Illinois Supreme Court.

According to the Winston & Strawn website, Mitchell is a litigation partner at the firm who has concentrated "his practice in commercial and appellate matters." He was named one of the "top 40 lawyers under the age 40 by the publishers of the Chicago Lawyer magazine" in 2005. Mitchell was one of the Winston attorneys representing Smith & Wesson in the Chicago handgun litigation; he's also represented the Governor of Illinois in an appeal to the Illinois Supreme Court addressing the constitutional power of the Illinois Attorney General. (Unfortunately, the Winston website gives no additional details on this case.)

Mitchell earned an undergraduate degree in English from Loyola University Chicago in 1991. He graduated from Loyola Law School in 1993. Before joining Winston, in 1998, Mitchell clerked for 6th Circuit Circuit Judge James L. Ryan and, later, for former Illinois Supreme Court Justice James D. Heiple. According to the Illinois Supreme Court's release, Mitchell has also worked for Gardner, Carton & Douglas in Chicago and Shearman & Sterling in New York. Mitchell has also served as an adjunct professor of law at Northwestern School of Law.

Minnesota student beats expulsion... sort of

Following up on last Thursday's post about Tony Richard, the kid from Blaine, Minnesota who works as a stockboy at the local grocery (in which capacity he uses a box cutter) and who was suspended from school and threatened with expulsion under the school's "zero tolerance" weapons policy when said box cutter was observed, in plain sight, in the car he uses to drive to school and work:

Terry Collins reports in today's Minneapolis Star-Tribune that the Anoka-Hennepin school board voted 5-1 not to accept the administration's recommendation that young Mr. Richard be expelled.

Collins writes, "The case illustrates the dilemma school administrators nationwide face in enforcing zero-tolerance weapons policies, many of which were instituted in the aftermath of widely publicized school shootings across the country. If school officials choose not to punish a student who has brought a weapon to school after ruling that there was no ill intent, they may open the door to others to do the same, but with more malevolent intent."

With respect to Mr. Collins, this case illustrates no such thing. The demons that animate a school shooter do not spring into existence because some other kid got away with having a box cutter or a pen knife in his car in the school parking lot. (Young Mr. Richard was never accused of trying to bring the box cutter into the school building.)

A tragedy today in Finland may illustrate this point. According to Jussi Mustikkamaa's report for the AP, printed earlier today on the Chicago Tribune website, the masked gunman who opened fire at the Kauhajoki School of Hospitality, killing 10 and, ultimately, himself, posted as many as four violent videos on YouTube in which he discharged a handgun. In one he said, "Whole life is war and whole life is pain. And you will fight alone in your personal war." In another, the shooter allegedly pointed a gun at a camera and said, "You will die next," squeezing off four rounds to drive the point home.

In contrast, Mr. Richard, the kid from Minnesota, had a disciplinary record that consisted of a few tardies.

When school shooting tragedies do occur, we too often find out (and always too late) that the author of the tragedy left warning signs... possibly even cries for help. School administrators have to learn how to evaluate risks and make distinctions... and hear those cries for help before disaster strikes. Making up rigid "zero tolerance" policies is simply an insufficient response.

And while a local resident was quoted in Collins' article today as calling the Minnesota school board's vote a victory for "common sense," that point is debatable. Rather than admit to a gross overreaction, the school authorities have instead placed Richard on "probation" until November 10. Moreover, writes Collins, in a neat bit of bureaucratic fudging, school officials said that "technically, the punishment will be considered an expulsion for the purposes of record-keeping."

So the Blaine High School administrators don't care what the school board says: As far as they're concerned, even if young Mr. Richard is in the building, he's still expelled. Maybe they won't talk to the kid if they see him in the hall.

Minnesota school district threatens to cut student

Meet Tony Richard, 17, and -- for the moment anyway -- a senior at Blaine High School in Blaine, Minnesota, a town of about 45,000 people not far from Minneapolis-St. Paul.

Richard faces expulsion because he allegedly violated the school's zero tolerance weapons policy.

Oh my, you say. What did this boy do?

Did he bring a loaded pistol into school? A rifle? Did he threaten a teacher? Another student?

Well, no.

According to Abby Simmons' article in the Minneapolis Star-Tribune, Richard left a box cutter in his car -- a box cutter that he uses at his after school job at Cub Foods, a job which sometimes requires that he cut up cardboard boxes.

The box cutter, in plain sight, in a cup holder, was "spotted" by a security officer when Richard pulled into the parking lot.

Astonishingly, this -- just this and nothing more -- is the violation which has already resulted in young Mr. Richard being suspended for 10 days and, according to Simmons' article, school officials recommending "to the Anoka-Hennepin school board that he be expelled."

In a saner world, the high school disciplinarian would have urged Security Guard Barney Fife to calm down, then given Mr. Richard a pass to excuse his being late to class. The disciplinarian might have also suggested to Mr. Richard that he leave his work tools at work. And that would have been the end of the incident.

Zay N. Smith picked up the story for QT this morning, another amusing story in his continuing series, "The Case for Zero Tolerance of Modern School Administrators." In the Sun-Times, it was funny.

But it may not be funny for young Mr. Richard, not if he really does get booted out of high school. And it's not just the local school district that seems to be treating this ridiculous case as if it were a potential tragedy averted by vigilant security work.

Abby Simmons interviewed Charlie Kyte, executive director of the Minnesota Association of School Administrators, for linked Star-Tribune article. She quotes Kyte as saying, "While schools have zero-tolerance policies, you must also allow judgment to come into play." For a brief second, hope flared: Perhaps, I thought, here's where a grownup enters the conversation and shuts this silliness down. But Mr. Kyte continued, "The board's gotta look at this and say, 'Hmmm, did this kid really create a horrible act?' The second thing they have to ask themselves is, by giving a less rigorous punishment, are they also opening the door to kids thinking they can get away with this stuff?"

Create? Horrible act? Giving a "less rigorous punishment" might "[open] the door to kids thinking they can get away with this stuff?" What might some future miscreant hope to get away with? Having an after school job?

Here's my suggestion for a punishment: The Blaine school board should apologize to Mr. Richard.

-----------------------------------------------------------------
Photo obtained from the linked Star-Tribune article. Entirely off-topic thing I learned while looking into this story: Blaine, Minnesota is also the off-season home of White Sox GM Kenny Williams.

Pamela Loza fundraisers announced

A fundraiser will be held for 12th Subcircuit Democratic judicial candidate Pamela Loza on September 25 from 5:00 to 8:00 p.m. at Cheeseburger in Paradise, 1472 Market Street in Des Plaines. Tickets for this event begin at $50.

A second Loza fundraiser will be held in the Loop on October 2 at Sidebar, 220 N. LaSalle Street, also from 5:00 to 8:00 p.m. Tickets for this event begin at $100.

More information about these events may be found at Ms. Loza's campaign website.

Ms. Loza's November opponent is Republican Laura J. Morask.

Few judicial races on Cook County ballot in November

Conservative blogger, columnist and radio host Tom Roeser often imagines the electorate as a giant, sleepy eye. Now that the Democratic and Republican National Informercials have concluded, one might imagine that giant eye fluttering open to consider what other races might be on the ballot in November.

Many voters will be surprised to find that there are no contested judicial races; most of the judicial races ended when the primary votes were counted. There are only contests in four Cook County judicial subcircuits. These are the match-ups:

Shultz vacancy -- 4th Subcircuit

Maureen H. Masterson-Pulia, Republican














Pat Rogers, Democrat






I have not found a campaign website for Ms. Masterson-Pulia. Pat Rogers' campaign website is at www.electpatrogers.com -- but it doesn't look to have been updated since the primary.
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Devlin vacancy -- 12th Subcircuit

Laura J. Morask, Republican














Pamela Elizabeth Loza, Democrat








Ms. Morask's website is electlaura.net. Ms. Loza's website is at www.lozaforjudge.com.
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Ryan vacancy -- 13th Subcircuit

Annie O'Donnell, Republican









Ann Catherine Brady, Democrat






I have been unable to find a campaign website for either Ms. O'Donnell or Ms. Brady.
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Tobin vacancy -- 13th Subcircuit

Margarita Kulys Hoffman, Republican









Carol Barnes, Democrat


Judge Kulys-Hoffman was appointed to her post by the Illinois Supreme Court. This past week she was also elected as an Associate Judge of Cook County by her fellow jurists. Her campaign website has not been updated since the primary. I've been unable to find a website for Ms. Barnes.
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A vacancy -- 15th Subcircuit

Peter Fera, Republican









Anna Helen Demacopoulos, Democrat




I could find no campaign website for Mr. Fera. Ms. Demacopoulos' campaign website is at annaforjudge.com

My ride to work has gotten longer...

...because Zay N. Smith's QT is apparently no longer being published in the print edition of the Chicago Sun-Times. It remains available online (hence the link).

The Sun-Times is thin enough without this latest cut -- which I hope is only temporary.

Still, disappointments can sometimes provide opportunities. In this case, Mr. Smith may now be able to provide links to some of his tidbits. For example, take this item from yesterday's column:

Modern Education + the Criminal Mind =

A kidnapper in Oldsmar, Fla., put his gun down while seated next his hostage in the back of a car so he could send a text message, police said.

If you had an extra minute, wouldn't you like to look at the source material for this one?

-------------------------------------------------------------------
Update 9/18/08

Because of a virus, I've not taken the el to work for a number of days. This morning, though, I was back on the train. The good news was that QT was back in the Sun-Times. The bad news was that, because of some never explained problem at Irving Park, I had about an hour and a quarter to read it.

Laura Morask announces September fundraiser

12th Subcircuit Republican candidate Laura Morask has announced a September 11 fundraiser at Cavanaugh's, 53 West Jackson, from 6:00 to 8:00 pm.

Ticket prices start at $100. For more information, follow this link to Ms. Morask's website.

Morask's opponent on the November ballot is Democrat Pamela Elizabeth Loza.

Ross declared winner in 5th Subcircuit race

John Flynn Rooney reports in the August 21, 2008 the Chicago Daily Law Bulletin that the Circuit Court has declared a winner in the close 5th Subcircuit A race.

Following a recount trial that lasted a week and a half, Associate Judge Alfred Paul ruled Thursday that Dominique C. Ross beat Stephen Stern by 158 votes, 27,682 votes to Stern's 27,524.

Stern, a former President of the Cook County Bar Association, was rated Qualified or Recommended by every bar rating group for the February 2008 Primary. He was rated "Highly Recommended" by the Decalogue Society of Lawyers, the Lesbian and Gay Bar Association of Chicago, and the Puerto Rican Bar Association. He was endorsed by the Chicago Tribune, the Chicago Sun-Times, the Chicago Federation of Labor, and the Chicago Fire Fighters Union, Local 2.

Ross, a Chicago solo practitioner and a lawyer since 1995, did not submit her credentials for review by the Alliance of Bar Associations for Judicial Screening. Ross was found "Not Recommended" by the Chicago Bar Association "at this stage of her career," but the CBA praised her for her "fine demeanor."

Rooney's Law Bulletin article quotes James P. Nally, Stern's attorney, as saying, "We certainly intend to appeal. We've conducted the case to make a good record [on appeal]."

Pending the outcome of any appeal, however, Ross will become a judge in December: No Republican filed for the 5th Subcircuit A vacancy.

William H. Hooks appointed to Berland vacancy

Cook County Circuit Court Judge Richard B. Berland will retire July 11.

The Supreme Court has already announced that William H. Hooks will replace Judge Berland. His appointment to this countywide vacancy is effective August 4 and will terminate on December 6, 2010.

Hooks is among the announced speakers for a July 18 IICLE program, "Managing Media in the High Profile Case." In one such recent high-profile case, Hooks represented Cook County Public Defender Edwin A. Burnette in his efforts to hold on to his job after the Cook County Board proposed to dismiss him.

Hooks was admitted to the Illinois Bar in 1981. He has served as an officer in the United States Marine Corps, retiring from the reserves as a lieutenant colonel in 1995.

Allen F. Murphy appointed to Carmody vacancy

The Chicago Daily Law Bulletin reported in its July 3 issue that Cook County Assistant State's Attorney Allen F. Murphy has been appointed to the Third Subcircuit vacancy created by the April death of Judge Thomas F. Carmody, Jr.

The Law Bulletin reports that Murphy has been working in the gang crimes unit since early 2005. He was admitted to the practice of law in 1991.

Murphy's appointment will begin on July 21 and will expire on December 6, 2010.

Your Witness: Lawyers share tales of cross exams

1. Thomas Anthony Durkin ● 2. Don H. Reuben ● 3. Robert F. Coleman ● 4. R. Eugene Pincham ● 5. Sam Adam ● 6. Robert W. Tatum ● 7. Charles B. Sklarsky ● 8. Gordon B. Nash, Jr. ● 9. Michael W. Coffield ● 10. George N. Leighton....

This is not a random list of prominent Chicago lawyers. These are some of the chapter authors in a new book, Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers.

Lawyers Steven F. Molo and James R. Figliulo collected and edited these essays, along with Chicago Tribune reporter Maurice Possley, credited by Molo and Figliulo as the project's managing editor "who took what were sometimes well intended but hurried writings of busy trial lawyers and transformed them into the smooth prose that grace these pages." Chicago lawyer Scott Turow provides a foreward.

This is the kind of book that you can open to any random page and start enjoying. That's what I did after the publicist for the Law Bulletin Publishing Company was kind enough to send me a copy.

At first I thought the book skewed too heavily toward criminal cases -- especially criminal cases in Federal Court -- but that was a consequence of where I jumped in... and also of the fact that more criminal cases come to trial than civil ones. Most of the stories about civil cases have to do with the skewering of expert witnesses. I never did tote up figures to determine how many stories dealt with criminal cases and how many with civil cases.

11. James S. Montana, Jr. ● 12. Marc W. Martin ● 13. Peter C. John ● 14. Patrick A. Tuite ● 15. Walter Jones, Jr. ● 16. Chris Gair ● 17. James R. Figliulo ● 18. Donald G. Kempf, Jr. ● 19. Dan K. Webb ● 20. Lorna Propes ● 21. Terence F. MacCarthy....

And these are, for the most part, stories. Each of the authors is trying to convey something of the art of cross-examination as he or she has learned it, by trial and error, but the lessons are all framed by or conveyed in stories. In a "cautionary note" at the front the volume, Messrs. Molo and Figliulo warn that all the stories in the book are "based on real-world trial experience, but as with most good stories, they all may not be entirely precise." Some stories, they add, may "have gotten better with age." In other words, it is just possible that a few of these stories might not hold up... exactly... under vigorous cross-examination. It doesn't matter. It doesn't detract one little bit from the reader's enjoyment or the value of the lessons conveyed. (And some authors seem to have dug out actual transcripts from the trials about which they write.)

Many of the stories included in Your Witness are what might be called "war stories," the kinds of stories that lawyers of all stripes tell over lunch or at cocktail parties. But the authors here are big-time, successful lawyers and this makes their stories that much more entertaining and useful. Two of the chapter authors, Michael Coffield and Don Hubert, passed away during the preparation of the book; a third, Judge Pincham, died after the book went to press. Messrs. Molo and Figliulo estimate that the lawyer-authors of these chapters aggregate roughly 1,600 years of trial experience. These are stories that will teach the reader many things -- even readers who aren't trial lawyers.

Most of the authors write about themselves -- their own successes (and failures). This is as it should be: You will not often find many shrinking violets in any group of trial lawyers. Many, as was famously said of Theodore Roosevelt, want to be the bride at every wedding and the corpse at every funeral. But several of the authors include appreciations of other trial lawyers they have seen in action. Pay particular attention here. In a setting like this, the authors have no motive to bestow false praise.

22. Thomas M. Durkin ● 23. Charles W. Douglas ● 24. James D. Montgomery ● 25. Robert A. Clifford ● 26. William J. Kunkle ● 27. Edward L. Foote ● 28. Michael T. Hannafan ● 29. Michael J. Morrissey ● 30. C. Barry Montgomery ● 31. Jo-Anne Wolfson....

Your Witness will be of interest to people outside Chicago, too. Even though all of these lawyers are... or were... based in Chicago, several of the tales are set in other jurisdictions, such as Judge Leighton's story of a federal habeus corpus proceeding in Oxford, Mississippi in the late 1950s. You may find Judge Leighton's account of his conversation with the U.S. Marshal on that occasion particularly powerful; I thought it conveyed the essence of that time and place in a third of a page.

32. Matthias A. Lydon ● 33. Steven P. Handler ● 34. Richard A. Halprin ● 35. Thomas M. Crisham ● 36. Michael D. Monico ● 37. Steven F. Molo ● 38. Donald Hubert ● 39. Raymond J. Smith ● 40. Jeffrey E. Stone ● 41. Robert L. Byman ● 42. Philip S. Beck....

While each of the authors is focusing on the technique of cross-examination, the book is not repetitive. Sure, the standard rules are set out many times -- but then the authors tell you why it didn't make sense to follow this rule or that one in a particular case. In Your Witness you'll learn, for example, never to ask a question on cross to which you don't know the answer... unless the answer doesn't matter... or unless the possible reward of securing Answer A outweighs the risk of obtaining Answer B. Many of the writers stress that cross-examination is an opportunity for the lawyer to tell the client's story through a witness -- but to do this the lawyer must be the focus of the jury's attention, not the witness. A variety of entertaining suggestions are offered as to how this may be done. One overriding lesson is presented: This is art, not science.

This isn't a book that a lawyer will have in the briefcase during trial... but it may be on the table by the bed at home as the fully prepared lawyer looks for inspiration for the witnesses to be crossed tomorrow....

43. Anton R. Valukas ● 44. Patricia Bobb ● 45. Allan A. Ackerman ● 46. Thomas M. Breen ● 47. Vincent J. Connelly ● 48. Manuel Sanchez ● 49. William J. Martin ● 50. Thomas A. Demetrio

Another note at the beginning of Your Witness advises that the "authors' royalties, less expenses, are being donated to The Chicago Bar Foundation, the charitable arm of the Chicago Bar Association." That's not the only reason to buy Your Witness, but if that helps you make that decision, that's all well and good, isn't it?

A million lawyers in U.S.? But that's not the news

Debra Cassens Weiss reported yesterday on the ABA Journal website, Law News Now, that there are a million lawyers in the U.S. -- but -- who'd have believed it? -- there are twice as many artists.

Law News Now links to article in the Washington Post about a new study released by the National Endowment for the Arts which reports that nearly two million people identify themselves as "artists." The NEA says that "artists are one of the largest classes of workers in the nation, only slightly smaller than the U.S. military’s active-duty and reserve personnel (2.2 million). Artists now represent 1.4 percent of the U.S. labor force."

The NEA study, entitled Artists in the Workforce, is available as a .pdf document. According to the study, as of 2000, more than one-fifth of the nation's 2,000,000 artists live in the Los Angeles, New York, Chicago, Washington, or Boston metropolitan areas. That works out to 64,800 artists in the Chicago Metropolitan Area as of 2000, broken down as follows:

Artists -- 1,080
Announcers -- 1,335
Architects -- 8,320
Fine Artists, art directors & animators -- 7,230
Dancers and choreographers -- 610
Designers -- 26,440
Entertainers & performers -- 895
Musicians and singers -- 4,845
Photographers -- 4,150
Producers and directors -- 4,065
Writers and authors -- 5,830

Sudoko derails Australian drug trial

In Illinois, jurors may be permitted to take notes at trial as authorized by 705 ILCS 315/1(b).

Jurors in Australia can take notes, too. Counsel trying a drug conspiracy case in the courtroom of Sydney District Court Judge Peter Zahra thought the jurors hearing the case were quite "diligent" because they seemed to be taking "copious amounts of notes."

Then someone noticed that some of the jurors weren't just writing horizontally... they were writing vertically, too.

It turns out, according to the linked BBC News article, that five of the jurors were working Sudoku puzzles while the evidence was being presented. One juror told the Australian Associated Press that the puzzles "helped keep her 'mind busy' as she listened to" the testimony. "Some of the evidence is rather drawn out, and I find it difficult to maintain my attention the whole time," she said.

Judge Zahra has dismissed the jury in the three month drug conspiracy trial, a trial that, the BBC noted, had cost Australian taxpayers over a million Australian dollars ($945,000 U.S.). The trial will begin again in a couple of weeks.

James N. O'Hara appointed to fill Henry vacancy

Chicago solo practitioner James N. O'Hara ran unopposed for the Henry vacancy in the 14th Judicial Subcircuit in the February primary. He would have taken office in December. The Supreme Court, however, has appointed O'Hara to the seat to which he will soon be elected.

The appointment is effective June 16.

Can a lawyer drop off a computer for ecycling?

I've written twice now about the City of Chicago recycling facility which takes, among other things, consumer electronics for ecycling.

City residents can take their old computers there and expect that the machines will be disposed of responsibly. The City may even make a buck or two from reducing the computer to its component parts and selling the more valuable parts.

But can a Chicago lawyer take his or her obsolete computer there for ecycling?

Machines from one's office are not supposed to be dropped off there, and there are services which will -- for a fee -- pick up used computers at an office and supply documentation, for each machine, that the hard drives have been responsibly destroyed.

But what about the laptop? The computer in the home office that is used for additional work on nights and weekends? It contains confidential client information... and opinion is pretty unanimous that a machine like this can not simply be put out with the trash....

In a March 2005 article that appeared in Wisconsin Lawyer, Ross L. Kodner and Courtney G. Kennaday wrote:

Tossing [your old computers] in a Dumpster® seems wasteful; also, much of this equipment is considered hazardous to the environment and must be managed and disposed of in compliance with federal, state, and local laws and regulations. You might try to sell old computers for a few cents on eBay or donate them to charity.

Any of these disposal choices could cost you your law license.

Why? Because old computers are packed with confidential client information that you have an ethical duty to protect. Further, the computers undoubtedly contain sensitive firm information and software licensed to your firm or organization (for which you have specific obligations under end-user license agreements). Giving away control of and access to old computers - through the Dumpster approach, an eBay sale, or a charitable donation - can lead to malpractice claims and ethical violations at worst and serious embarrassment at best. There could even be claims for violating HIPAA (for disclosing employee or client healthcare information) and Sarbanes-Oxley (for giving away corporate documents that you must maintain).

An article posted on the ABA Legal Technology Resource Center also cites "Federal Trade Commission's Disposal Rule (16 CFR Part 682) on June 1, 2005, [which] says that companies disposing of computer equipment need to take steps necessary to remove personal or financial information from the machines."

Both of these articles offer advice for lawyers on "file shredding" programs that will do more than just delete programs. But Kodner and Kennaday warn that, "given enough time and money, someone probably could find a way to recover at least some of your data, no matter what you do." Paranoid? Read some of the hard drive disposal suggestions made by ABA members on Solosez, an electronic mail discussion list that the ABA offers for solo and small firm practitioners.

Both articles encourage ecycling -- but recommend that file shredding software be employed before dropping the old machine off. But, says the ABA article, "The surest way to prevent information on the hard drive from falling into the wrong hands is to remove it entirely from the computer. This way the outside shell of the computer can be thrown out but the sensitive information can be retained." Old hard drives should be labeled and stored.