An update on the new law was provided by Robert K. Downs of the ISBA Board of Governors and 19th Circuit Judge John T. Phillips, who served as vice chairs of the Task Force on Attorneys for Children that developed the legislation.
Training programs already have been conducted in Cook, DuPage and Lake Counties, Downs told the special committee last month. "I was able to attend only the Cook County all-day program, which was received with great acclaim," he said, and led to a defined schedule of monthly meetings.
The special committee's charge is to provide materials and suggestions, and identify resources that individual circuit courts may use in developing their own training programs.
"We would like to see a practical, easy to use, well-indexed guide for child representatives," Downs said, "that will enable them to get pointed in the direction they might need when confronted with particular challenges."
Among such challenges are a child who supposedly doesn't want to visit a parent, and allegations by a non-custodial parent of inappropriate parenting in regard to medical care, counseling and addressing a child's needs.
"The lion's share of the work" will be accomplished in subcommittees, working on timetables for submitting a work product to the special committee, Downs said.
The ISBA legislative proposal two years ago offered a key option to courts to appoint a child representative, combining the powers and responsibilities of attorneys representing a party and guardians ad litem.
"This addresses the practical difficulties of representation of a child," Downs said in 1998, when the task force adopted the draft. Strict adherence to the code, for instance, "would require a lawyer to abide by client decisions concerning the objectives of the representation," he said.
An attorney had a problem representing a minor child who was not capable of understanding factors relating to his or her best interests. A guardian could make recommendations, but was subject to being called as a witness and could not claim confidentiality.
"The combining of the role and powers of these two offices into a statutorily defined role," Downs said two years ago, "is a recognition of existing practice in many jurisdictions."
Downs had chaired the Family Law Section Council more than a year previously, when a subcommittee headed by Laura M. Urbik Kern of Hinsdale raised issues that generated formation of the task force by the ISBA Board of Governors.
The task force draft was reviewed during a meeting on Law Day 1998 in Belleville, and its proposals eventually became the law of the state.
"The crux of the proposed legislation was to substantially clarify the role of an attorney appointed to represent the interests of a child or children in a divorce, support, custody or paternity proceeding," Downs said.
Equally important, he added, are rule changes that would "make clear the authority and standing of a newly created professional role referred to as the child's representative."
Daughters to learn how courts work
Mothers who are lawyers or judges will tell their daughters and nieces about legal careers during the ISBA "Take Your Daughter to Work Day" event Thursday, April 27.
Courtroom tours also will include opportunities for the girls to serve as judges during the program from 10 a.m. to 2 p.m. in a 14th floor courtroom of the Illinois Appellate Court, 160 N. LaSalle St., Chicago. A puppet show will take place during the luncheon period.
Coordinated by Gayle L. Nelson of the ISBA Committee on Minority and Women Participation, the activity is open to the daughters and nieces of ISBA members, or other special young women, from 1st through 8th grades.
Reservations at $10 per person should be made early, since space will be limited. Register by mail with check, Visa or MasterCard information to Joyce Wilson, ISBA Regional Office, Suite 900, 20 S. Clark St., Chicago, Ill. 60603. Credit card registration also may be made by facsimile to (312) 726-9071.
Tax-deductible contributions of accessory items for needy women to wear during job interviews are being collected in the ISBA Chicago Regional Office through May 31 by the Committee on Women and the Law.
Items may be brought to the ISBA office, suite 900, 20 S. Clark St., between 9 a.m. and 4:30 p.m. Monday through Friday during the collection period.
Donated scarves, shoes, purses, briefcases and costume jewelry will be distributed by Bottomless Closet, a charitable counseling agency for women seeking employment to support themselves or their families.
A 10-year index of ISBA Employee Benefits Section newsletters has been complied by section council member Robert T. Oleskiewicz of Daley & George, Chicago. Articles published in the newsletters from 1989 through 1999 are indexed by general topic.
Call the Illinois Bar Center, (800) 252-8908, for information about membership in the Employee Benefits Section or any other ISBA section. Substantive newsletters published by all of them are distributed regularly to section members.
Conviction of innocents should interest Joe Sixpack in death penalty debate
By Jeff Cappel
In the opinion of a prominent law professor, Illinois is entering its most incredible moment in recent history with respect to the death penalty, something that's morally reprehensible and riddled with arbitrariness, racism and classicism.
"Anyone who studies the issue carefully and looks at those facts recognizes those issues quite aside from the morality issues of the death penalty in the abstract," said Lawrence C. Marshall of the Northwestern University School of Law, a vocal opponent of capital punishment.
The director of Northwestern's Center on Wrongful Convictions, Marshall lectured March 23 during the Northern Illinois University College of Law seminar, "Defense Strategies in Death Penalty Litigation."
Marshall's work concentrates on the issue of innocence in capital cases and for a specific reason. "The way to get Joe Sixpack interested in the death penalty debate," he said, "is to focus on the death penalty's propensity to commit error and convict the innocent."
In passionate prose, Marshall applauded Illinois Gov. George Ryan's moratorium on executions and his recent naming of a commission to study whether capital punishment in this state "works," meaning that innocent people aren't being executed.
"And if some of us may have been a bit dubious about (the moratorium), and whether it was a political game or not, I think the naming of the commission is very heartening to many of us," he said. "The commission is very well-rounded and full of very well-intentioned folks."
Yet the commission creates a dilemma for people like Marshall who oppose the death penalty, asserting that it's immoral and unacceptable. They recognize the political question of whether that's "the argument that's going to succeed on the short or long term."
Marshall asked: "How do we balance our principal opposition to the death penalty with our pragmatic desire to at least limit the carnage as much as possible? Do we continue to wave the flag of abolition to the extent that we turn of some people, or talk of compromise at the risk of giving up on the idea of abolition?
"In my young life, this is the most difficult dilemma I've had to deal with at a professional level," he admitted.
To Marshall, it all depends on how an individual perceives the state's political climate and what the people are ready to do, but he warned that capital punishment opponents should be ready if it isn't abolished.
"We'd better be there, talking about serious reforms, because there may be some Band-Aid solutions," he said. "They may put some quick fixes on this, throw a little money at the problem and say: 'fixed.'"
Marshall offered a number of reforms that he claims could have spared the death row sentencing of almost all 13 men who have been exonerated and released. He blasted capital cases that rely on single witnesses, alleged police misconduct and jailhouse snitches.
"We all know about the fallibility of eyewitnesses," Marshall said, "and DNA now tells us the extent to which eyewitnesses are mistaken."
If a case falls-apart without its single eyewitness, he said, it should be "de-deathed." The Steven Smith and Anthony Porter prosecutions probably wouldn't have succeeded if this reform had been in place.
"Given what we know about the tricks police use," Marshall added, "a case that turns on a confession for which the entire interrogation hasn't been recorded shouldn't be a death case."
As to jailhouse snitch testimony, which was used to convict or condemn the defendant in five of the 13 cases, he suggested that "if a prosecutor believes that he or she has to stoop so low to use a snitch, isn't that the best evidence that they have a really bad case?"
Marshall also questioned jury fallibility. "If juries are frequently mistaken about the easy, objective fact of whether a person committed a murder or not," he noted, "then can we trust them to look into a defendant's heart, soul and background and than decide whether a person merits living or dying?"
Marshall said experts should educate juries in capital cases on the fallibility of witnesses and the phenomenon of snitch testimony. "Why is it," he asked, "that we want juries to act in ignorance when life and death are at issue?"
Giving high praise to public defenders, Marshall observed that most of the wrongful convictions haven't come out of their offices. The problem, he said, starts with poor families that retain private lawyers who may find out they can't mount defenses with insufficient money.
"Tthey find a lawyer who needs the $10,000 desperately or figures he'll plead it out," Marshall said, "but when he's told that if an expert or investigator is hired, and those fees will come out of the $10,000, he doesn't do it."
Many states, he added, adopt the position that indigent people who are eligible for a public defender, but choose private counsel, aren't denied the right to state-funded experts or investigators.
"I think allowing indigent defendants with private counsel access to experts, investigators and resources would be a wonderful step forward," he said.
ISBA sponsored death penalty strategy session
The Illinois State Bar Association was a co-sponsor of the Northern Illinois University College of Law symposium, "Defense Strategies in Death Penalty Litigation," covered for the ISBA Bar News on March 23 by freelance writer Jeff Cappel.
Other sponsors were the Illinois Attorneys for Criminal Justice, the Illinois Public Defender Association, the Illinois Trial Lawyers Association and several county and suburban bar associations.
Copies of the symposium materials and videotape are available. For information, call Sue G. Mellard at the College of Law, (815) 753-9655.
Ohio educators make pleas for killing to stop
Victor L. Streib wants to stop the "uniquely American" killing that began in 1642 in Massachusetts. Margery B. Koosed believes that the only way, and the simplest way, to stop wrongful executions is to stop sentencing people to death.
Streib, dean of the Ohio Northern University College of Law, spoke during the NIU death penalty seminar against juveniles being "executed in the name of justice." He criticized "the occasional practice of a few American states" in sentencing juveniles to death, a practice that he expects to continue for some time.
Koosed, a professor at the University of Akron School of Law in Ohio, discussed ways in which the likelihood of innocent defendants being executed could be lessened.
Death penalty statutes are in place in 38 states. In 40 percent of those jurisdictions, including Illinois, the age of 18 when the crime was committed is the minimum for capital punishment; 13 percent maintain age 17, and 47 percent maintain age 16.
Streib noted that juvenile death penalty advocates base their opinion on several grounds, including lack of juvenile remorse. Social conditions that promote juvenile crime are nearly impossible to fix, and political support for harsher punishments is strong.
By contrast, juvenile death penalty opponents argue that capital punishment doesn't frighten juvenile offenders, that those societal conditions that breed juvenile crime can be addressed, and that most young offenders have horrific childhoods.
Streib sees a larger result of juvenile executions, that embarrasses all Americans. "As a people who continue to kill our own children, we have forfeited any persuasive leadership role in the international movement for children's human rights," he wrote in provided materials.
He noted that the United States is the only country in the world that hasn't adopted the United Nations Convention on the rights of the Child. It prohibits capital punishment and life imprisonment for offenders below age 18.
Streib urges practicing attorneys in county courts to raise international child rights issues, because they're the "most powerful and important issue in the juvenile death penalty area."
He added that "we are in direct violation of international law in our practice (of executing children), and the European community is preparing sanctions against the United States in terms of business and not allowing us at the table."
And yet, the legal community is "trying to get a fix on a moving target involving standards of decency as it applies to the Eighth Amendment, whatever cruel and unusual is," he noted, adding that if executing juvenile offenders has become "cruel and unusual, that's a recent development."
In a 1988 case, Thompson v. Oklahoma (487 U.S. 815), the U.S. Supreme Court ruled that execution offenders who were 15 or younger at the time of their offenses is cruel and unusual under the Eighth Amendment.
However, in Stanford v. Kentucky (492 U.S. 361), the court ruled that executions for crimes committed at ages 16 or 17 are not prohibited by the Eighth Amendment.
The permissibility of any death sentence is what Koosed finds disturbing. Quoting Illinois Gov. George Ryan and referring to his moratorium on the death penalty, she wrote that "there is no margin of error when it comes to putting a person to death."
Koosed said that the legal community needs to go back to some "old ideas" for guidance. To that end, she would like to see the exclusion of