Volume 40, No. 15
February 15, 2000
ISBA-backed certification is proposed
A proposal from the Trusts and Estates Section Council for an ISBA-sponsored certification program received qualified support from the Board of Governors during its Jan. 21 meeting in Chicago.
On the recommendation of the Committee on Scope and Correlation, the board approved authorizing the section council "to develop a prototype program consistent with applicable Illinois law and Supreme Court rules" for review at a future meeting.
Board members commented that such a prototype might be applicable to development of certification in other practice area, such as family law.
Trusts and Estates, in a letter from council member Fred H. Dickson of Aurora, had requested "conceptual approval" of a plan to certify Illinois trust and estate lawyers who "possess a minimum level of expertise" as determined by examination, peer review and experience.
The council believes that a certification process with impartiality and integrity, along with identification of attorneys with requisite knowledge and skills, would be in the public interest.
The council expressed no opinion on the degree of experience, such as total hours in practice or percentage of practice, if any, that could be required.
Dickson noted that 17 states have received American Bar Association approval for various certification programs.
The Board of Governors also adopted a Scope Committee recommendation that the Supreme Court be asked to consider an amendment to Rule 7.4, which requires printed disclaimers from lawyers who publicize certifications.
The amendment would eliminate that requirement "where such certification is made by an ABA-accredited organization or the Illinois State Bar Association."
A capital idea: Seek justice, not convictions
Court hearing airs death penalty issues
By Stephen Anderson
The criminal defense bar and prosecutors shared a day in court Jan. 27 in Chicago with variant degrees of support for proposed reforms of death penalty case procedures.
Independently, the Illinois State Bar Association weighed in with suggested revisions to Supreme Court rule additions and amendments, many in parallel to concerns raised by public defenders and state's attorneys.
Conducted by the Special Supreme Court Committee on Capital Cases, consisting of 17 Illinois judges, the hearing was addressed by an array of lawyers that included Robert A. Loeb, chair of the ISBA Criminal Justice Section Council, Cook County public defender Rita A. Fry and DuPage County State's Atty. Joseph E. Birkett.
Perhaps the most incisive perspective was offered by Chicago attorney Edward H. Mogul, president of the 50-year-old Illinois Academy of Criminology.
Expressing apprehension of a public perception that something is wrong with the capital case system, and a high level of dismay with overturned convictions, Mogul suggested an expansion of Rule 3.8 of the Rules of Professional Conduct.
"Add paragraph (c) to the special responsibilities of prosecutors," Mogul said: "The duty of the prosecution is to seek justice, not merely to convict."
That is consistent with model standards of the American Bar Association and National State's Attorneys Association, he said, adding that he saw no harm in embedding the principle into the rules. "Winning at all cost has damaged justice in Illinois," he said.
One committee member, Appellate Justice William Cousins Jr., mused that Mogul's "duty to seek justice" proposal should be paragraph (a) of Rule 3.8, not (c), and Judge Thomas A. Hett recalled that similar language was posted in the Cook County state's attorney's office under Daniel P. Ward and John J. Stamos.
Mogul praised the committee's proposal to create a Capital Litigation Trial Bar (new Rule 714) as a "quantum improvement.
Presiding Judge Thomas R. Fitzgerald of the Cook County Criminal Division, who chairs the special committee, earlier had called the CLTB the single most important issue. "In a nutshell, it's the key to all of these proposals," he said.
Robert Loeb told the committee that the idea of a capital trial bar originated in the ISBA Criminal Justice Section Council, when it was chaired by Judge Daniel M. Locallo, now a member of the special committee.
In his testimony, Loeb pointed out two related problems: Defense attorneys are not trained adequately, and prosecutors have not made known evidence that should have been revealed.
The ISBA supports establishment of the CLTB, but opposes requiring prosecutors to qualify for membership as proposed in new Rule 416 and an amendment to Rule 701.
In the ISBA's written testimony on Rule 416(d) as it relates to prosecutors, "the issue is not competence and experience, but rather, the issue is that the prosecution meet its discovery and ethical obligations."
Fitzgerald told Loeb that the ISBA discussion mirrored that of the special committee, but the judges came down on the opposite side. "Prosecutors would better recognize discovery and ethics obligations" if required to qualify for the CTLB, he said.
Loeb also told the committee that the ISBA opposes the requirement in amended Rule 412 that prosecutors identify, by underlining, all passages in discovery material that could be considered potentially exculpatory evidence (Brady v. Maryland).
"What is exculpatory is not always apparent to a prosecutor because a prosecutor does not necessarily know the theory of the defense," the ISBA testimony points out, and "it is unrealistic to hold the prosecution to a standard of accurate identification of Brady material."
In addition, "a prosecutor can justifiably be disciplined for failure to comply with Brady requirements" and to underline passages that "a prosecutor cannot be presumed to anticipate as being exculpatory."
Asked by Judge Fitzgerald for suggestions on strengthening the Brady obligation, Loeb offered a pair of ideas:
1. Beef up the discovery compliance and certification proposal in amended Rule 416(g) as a substitute to requiring prosecutors to train for the litigation trial bar. Increase accountability by asking both the prosecutor and elected state's attorney to sign the compliance certificate.
2. Shorten the time period in which the prosecution must declare whether the death penalty will be sought. Amended rule 416(c) imposes a deadline of "no longer than 120 days from arraignment," a term that needs definition.
"In downstate counties, arraignment typically refers to the initial appearance after bond hearing, while in Cook County arraignment has come to refer to the return of an indictment, often 30 to 50 days after arrest," the ISBA testified.
Loeb referred to seeking or declining the death penalty as "a domino that kicks in requirements of other rules... Crucial stages in the process can ensue before arraignment," and trained CTLB defense counsel must be involved early.
In earlier testimony, public defender Rita Fry suggested that the prosecution should declare its intention within 30 days because the defense needs to know early on.
Judge Michael P. Toomin pointed out statewide differences that could raise compliance problems with such an early declaration deadline.
Fry countered that 60 days is reasonable, and 90 days should be the absolute limit. "Longer is unnecessary," she said. Justice Cousins suggested a "bright line" at 60 days, with up to 120 days when good cause is shown, and Fry concurred.
Fry also asked the court committee to reconsider its proposed limitations on "standardized discovery procedures for DNA evidence" in new Rule 417.
The same concern is reflected in the ISBA testimony, which asks the committee not to limit discovery "in the interest of standardization" to avoid burdening laboratory personnel
"Materiality and not standardization should be the guidepost," the ISBA testified, suggesting that the rule be crafted "as a minimum standard for compliance with discovery obligations."
Noting that "flexibility is essential," the ISBA pointed out that "what is material or sufficient has and will continue to evolve" as specific techniques and terminology change.
The ISBA offered an amendment to the new rule's statement of purpose: "This rule is promulgated to produce a minimum standard for compliance concerning DNA evidence, and it not intended to limit the production and discovery of material information."
Simultaneous with the Jan. 27 hearing in Chicago, the Illinois Supreme Court ordered a new trial for a man sentenced to death for the murder of a Chicago policeman.
Despite its recognition of "overwhelming" evidence of guilt, the court ruled that "a combination of errors occurring at trial may have coerced the jury into returning a verdict more likely grounded in sympathy than on dispassionate evaluation of facts."
The unanimous court criticized both the prosecution and defense for improper behavior, "unnecessary bickering between attorneys" and displays of "equal degrees of immaturity and unprofessionalism."
Past presidents, Laureates on Senior Counsellor list
Two past presidents of the Illinois State Bar Association and two Laureates inducted in December by the Academy of Illinois Lawyers are members of the 2000 class of ISBA Senior Counsellors.
Heading the roll of lawyers who were admitted to membership in 1950 and will be honored in June at the ISBA Annual Meeting are past presidents Lyle W. Allen of Peoria and Fred Lane of Chicago. Lane also is a past president of the Illinois Trial Lawyers Association and the Decalogue Society.
The recently inducted Laureates in the class are Robert E. Bradney of Jacksonville and Ivan A. Elliott Jr. of Carmi. Also listed are Chicago attorney Lionel I. Brazen, who served several years on the Board of Governors; Julian Johnson of Waukegan, a long-time Assembly member, and John W. Damisch, who has served with distinction on both the Assembly and Illinois Bar Foundation board.
The 2000 list includes Jerome J. Shestack of Philadelphia, a past president of the American Bar Association; Rex Carr of East St. Louis, an ITLA past president, and former U.S. attorney Thomas A. Foran of Chicago.
Among the present and former judges who will be honored as Senior Counsellors are James C. Craven, Robert L. Dannehl, Glenn T. Johnson, Jerome Lerner, Rex F. Meilinger, Romie J. Palmer, Harold H. Pennock, Fred W. Reither, Richard L. Samuels, Loren E. Schnack, William D. Stiehl and John M. Telleen.
The complete list of more than 200 Senior Counsellors from Richard L. Ackman of Kankakee to Edwin J. Zitnik of Berwyn was approved Jan. 21 by the ISBA Board of Governors and will be published in a future issue of the ISBA Bar News.
Violence shelter receives IBF grant
Family Shelter Services of Glen Ellyn, the only comprehensive domestic violence program in DuPage County, has received a $5,000 grant from the Illinois Bar Foundation for expansion of its children's initiative.
"The children's program is designed to help break for cycle of violence experienced by children who witness domestic violence at home," said Irene F. Bahr, a member of the IBF board and ISBA Board of Governors who investigated the grant application.
"Statistics show that a boy who witnesses a father abusing a mother at home is 10 times more likely to engage in spouse abuse later in life," she said, "and girls who witness such abuse are more likely to become adult victims."
Family Shelter also provides emergency housing, counseling for women and children, a 24-hour crisis line, advocates who help obtain orders of protection, and on outreach network that identifies and assists domestic violence victims. An average of 10 victims are helped each day.
"Through the children's counseling program, children of women who are victims of domestic abuse are treated as individuals who are also victims of this abuse," Bahr said.
"They are taught alternatives to violent and aggressive behavior, to model healthy interaction between parents and children, and to develop necessary life skills to cope with their unique family situations."
Bahr called the Family Shelter program "an essential intervention effort to help ... children, who are often the forgotten victims of abuse."
Founded in 1976 by volunteers who operated a hotline for the homeless. They discovered that the need to secure shelter for domestic violence victims was critical. By 1978, a network of short-term safe homes had been established, and in 1980, a 12-bed shelter was opened.
The court advocacy program was implemented on 1982 after enactment of the Illinois Domestic Violence Act, an ISBA legislative effort, and the children's program began in 1984. Family Shelter now has three facilities totaling 43 beds.
Legislators invited to women's breakfast
Women members of the Illinois Senate and House of Representatives have been invited to an Illinois State Bar Association legislative breakfast from 7:30 to 9:30 a.m. Wednesday, March 8, at the Sangamo Club in Springfield.
Allerton Conference in May to air MDP
Multidisciplinary practice issues will be discussed during the biennial ISBA Allerton House Conference scheduled Thursday through Saturday, May 4-6 in Monticello.
Sponsored by the ISBA Civil Practice and Procedure Section Council, the 2000 conference will be conducted by council chair Thomas M. Harris Jr. of Bloomington.