for those persons paying their 2001 registration year fees before January 1, 2000. 625 ILCS 5/3-806 (West 1998), as amended by P.A. 91-037, effective July 1, 1999.
Informal Opinion No. I-00-006, issued February 25, 2000. Conflict of Interest-Participation of an Officer on an Issue Previously Advocated as Counsel. While an attorney's past representation of a client regarding a particular issue may evidence his or her knowledge of the issue, it does not necessarily imply personal agreement with the position of that client, nor would it ordinarily disqualify the attorney from participating in a quasi-legislative proceeding regarding the issue.
Capital developments in Illinois' criminal justice system
By Patrick J. Hughes, Jr.
Several significant developments in the state's criminal justice system have occurred recently. Two of these deal directly with Illinois' death penalty.
Death penalty--Illinois Capital Litigation
Trust Fund created
First, effective January 1, 2000, the Illinois Capital Crimes Litigation Act, Public Act 91-059, created the Capital Litigation Trust Fund. The purpose of the fund is to make funding available for the prosecution and defense of capital cases and the Act provides Trust Fund moneys shall be expended as follows:
(2) To pay the capital litigation expenses of trial defense including, but not limited to, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists and grants and aid provided to public defender or assistance to attorneys who have been appointed by the court to represent defendants who are charged with capital crimes.
(3) To pay the compensation of trial attorneys, other than public defenders, who have been appointed by the court to represent defendants who are charged with capital crimes.
(4) To provide State's Attorneys with funding for capital litigation expenses including, but not limited to, investigatory and other assistance and expert, forensic, and other witnesses necessary to prosecute capital cases. State's Attorneys in any county other than Cook County seeking funding for capital litigation expenses including, but not limited to, investigatory and other assistance and expert, forensic, or other witnesses under this section may request that the State's Attorneys Appellate Prosecutor or the Attorney General, as the case may be, certify the expenses as reasonable, necessary, and appropriate for payment from the Trust Fund, on a form created by the State Treasurer.
(5) To provide financial support through the Attorney General pursuant to the Attorney General Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the Attorney General's Office.
(6) To provide financial support through the State's Attorneys Appellate Prosecutor pursuant to the State's Attorneys Appellate Prosecutor's Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the State's Attorneys Appellate Prosecutor.
(7) To provide financial support to the State Appellate
Defender pursuant to the State Appellate Defender Act. Monies expended from the Trust Fund shall be in addition to county funding for Public Defenders and State's Attorneys, and shall not be used to supplant or reduce ordinary and customary county funding.
The Act further provides:
(F) Moneys in the Trust Fund shall be appropriated to the State Appellate Defender, the State's Attorneys Appellate Prosecutor, the Attorney General and the State Treasurer. The State Appellate Defender shall receive an appropriation from the Trust Fund to enable it to provide assistance to appointed defense counsel throughout the State and to Public Defenders in counties other than Cook. The State's Attorneys Appellate Prosecutor and the Attorney General shall receive appropriations from the Trust Fund to enable them to provide assistance to State's Attorneys in counties other than Cook County. Moneys shall be appropriated to the State Treasurer to enable the Treasurer (i) to make grants to Cook County, (ii) to pay the expenses of the Public Defenders and State's Attorneys in counties other than Cook County, (iii) to pay the expenses and compensation of appointed defense counsel in counties other than Cook County, and (iv) to pay the costs of administering the Trust Fund.
The Trust Fund Act sets the rate of compensation for capital case appointed trial counsel at a rate not to exceed $125. The Act also provides that capital case counsel shall meet such qualifications as the Illinois Supreme Court by Rule shall provide. (See following report on the Recommendations of the Special Supreme Court Committee on Capital Cases).
In order to carry out its statewide trial assistance responsibilities under the Act, the Office of the State Appellate Defender has established a Death Penalty Trial Assistance Office. The Trial Assistance Office will be staffed with attorneys, social workers and investigators who will be available to provide assistance in selected cases at two sites, one in Chicago and one in Springfield.
Illinois Supreme Court Special Committee on Capital Cases
On April 16, 1999, the Illinois Supreme Court appointed a committee of seventeen Illinois judges chaired by the Hon. Thomas R. Fitzgerald, presiding judge of the Criminal Division of the Circuit Court of Cook County, to study the death penalty process in Illinois.
On October 28, 1999, the Committee submitted its report to the court. Among the Committee's recommendations is the creation of a Capital Litigation Trial Bar, requiring minimum training and experience standards for all attorneys--defense and prosecution, appointed and private--who try capital cases. The Supreme Court Committee also recommends that two appropriately certified capital litigation trial bar members be appointed to represent capital defendants.
Other recommendations in the report recommend enhancement of discovery procedures to better insure that materials favorable to the defense have been disclosed to the defense by the prosecution side. The discovery proposals include allowing defense attorneys to question under oath potential prosecution witnesses before trial upon a showing of good cause; and establishing standardized procedures for disclosing DNA testing and evidence. The Supreme Court Committee also recommends close supervision in capital cases by trial judges, and that prosecutors be required to give notice of their intent to seek or decline to seek the death penalty within 120 days after arraignment.
The Supreme Court Committee's report recommended that police interrogations be videotaped, either voluntarily by law enforcement agencies in Illinois or required through legislative enactment.
The import of the committee's work became even more evident as Governor Ryan recently issued a moratorium on the death penalty in Illinois.
Editor's note: Welcome to the inaugural column in which we plan to regularly profile attorneys or offices in the government sector.
Someone you should know: profiles in government
The Honorable David A. Erickson's official job title is the First Assistant State's Attorney of Cook County. The job of first assistant is enormous, as he is responsible for the policy, management, training, and day-to-day operations of the entire Cook County State's Attorney's office. Despite the fact that there are over 900 attorneys in the office, he is able to remember them by first name when greeting one of the assistants in the hallway.
Like scores of hopefuls before him, Dave began clerking for the State's Attorneys Office as a young law student at John Marshall Law School. He could not know that some twenty years later he would return as the second in command to the leader of the second largest prosecutors' office in the nation. After graduating law school in 1976, Dave joined the State's Attorneys Office under State's Attorney Bernard Carey. Dave's first assignment was in first municipal working under Joseph Urso, now a presiding judge of the third judicial district. Dave quickly worked his way through the office, and within eleven months he was transferred to the coveted felony trial division at 26th and California.
Dave remembers the office of those days as vastly different in size and structure from what it is today. The entire felony trial division was small enough to be housed on the second floor of the courtroom side of the complex. In 1979, there were 36 assistants in the entire office, countywide. Today, there are 987 attorneys countywide.
Dave was assigned the unique position of "floor boy" when he made it to 26th Street, a job about which, notwithstanding its title, he fondly reminisces. In those days, the "floor boy's" job was to try specially assigned cases from among the pick of all the courtrooms in the felony trial division. Typically, these were the higher profile cases in the system. Dave remembers that one of his most significant cases, the Verdun case, was personally assigned to him by then State's Attorney Richard M. Daley. Verdun, a retired police officer, was charged with murdering Deputy Superintendent of Police Patrick Riordan in a Chicago tavern. Deputy Superintendent Riordan had come to the aid of a patron whom Verdun had begun hassling. Verdun shot Deputy Riordan several times in the head and chest, killing him. As lead prosecutor, Dave gained a conviction and the maximum sentence, which at the time was sixty years in the Department of Corrections.
From his days as floor boy, Dave worked his way up to Wing Supervisor, responsible for six felony courtrooms until his departure from the state's attorneys office in 1982. He practiced in the private sector for five years, first at Hinshaw & Culbertson and then on his own, doing everything from medical malpractice to plaintiff side personal injury and criminal defense. In 1986, Dave was recruited back to the State's Attorney's Office by then First Assistant Michael Angarola. He rejoined the office as the supervisor of the Second Municipal District headquartered in Skokie and soon was promoted to Deputy of the Special Prosecutions Bureau.
Dave's second departure from the office came in 1988, when he was tapped for the bench. He would remain on the bench for the next twelve years. As an associate judge, he again quickly worked his way up to supervisory judge in the newly-formed night narcotics unit within four and one-half years. He was then transferred to 26th and California to the felony trial division, where he presided over cases ranging from class four drug cases to capital homicide trials. As a judge, Dave had a reputation for being tough yet fair; assistant state's attorneys considered his courtroom to be a plum assignment. He was well regarded by both sides of the justice system.
When Richard Devine was elected in 1996 as Cook County State's Attorney, he began to put his team together to lead the new administration and enlisted Dave Erickson's help. Dave couldn't refuse. Although he gave up a prestigious judgeship, Dave saw it as a unique opportunity to help make the office grow and develop.
Dave speaks with pride of the numerous and innovative programs that he and Dick Devine have implemented throughout their four-year administration: the Community Prosecution Unit, where prosecutors are stationed in specific communities to help target and address the daily problems of the community; a complex litigation unit in the civil division; a narcotics strike force; and a diversion drug program to target non-violent drug offenders and unclog the overwhelming numbers of drug cases flowing into the system on a daily basis. They also have enhanced the Domestic Violence division, implementing two new programs there: the targeted abuser call, which Attorney General Janet Reno hailed as one of the top programs of its kind in the nation, and the felony domestic violence call.
One of the new programs Dave is proudest of is the systemized training program for young state's attorneys. He recruited Professor Paula Holderman from John Marshall Law School to head up the training program. Together, they implemented diversity training and attorneys' "school." Dave is also excited about the fact that the office now recruits from twenty-five out-of-state law schools and has forged an intern program with Howard University in Washington D.C.
Dave works long days, in both his Daley Center Office and at 26th and California. Additionally, Dave has taught trial advocacy at Chicago-Kent College of Law since 1982 and has coached many winning teams to victory in the regional competition of the National Trial Advocacy Competition.
Dave is committed to the betterment of the profession:
Having been in all types of practice, government and judicial, every attorney owes something back to the profession and the public. At some point in your life as an attorney you should and must do some public service. We must restore public confidence in the system by giving back to the profession and to society. We must as a profession do for the good of others.
Dave provides a great example, for we too should all strive to reach these goals.
Department of Justice attorneys file class-action
"9,000 Justice lawyers seek back pay; $500 million sought in overtime lawsuit," read the headline of the February 22, 2000, Washington Times. Claiming that they were denied over $500 million in overtime pay over the last eight years, Justice Department lawyers filed a class-action suit in November 1998 in the U.S. Court of Federal Claims. This group includes members of the 94 U.S. Attorney's Offices in the nation. The plaintiffs in the suit were required to opt-in to the now-certified class, and their numbers have reached in excess of 9,100. Due to the statute of limitations, the plaintiffs seek overtime compensation since 1992.
The suit accuses management of illegally refusing to make payments for overtime that was legally accrued. Specifically, the suit alleges a violation of the 1945 Federal Employees Pay Act (FEPA), 5 U.S.C. §§ 5541-5550a, that requires overtime pay for all federal employees who work more than an eight-hour day or a 40-hour week. The complaint states that the law does not carve out an exception for lawyers. Plaintiffs' attorneys have reported that internal Department of Justice documents establish that the Department knew of its statutory duties to pay overtime as early as 1980.
In response, the Justice Department has asserted that its legal staff is composed of professionals who knew that they would be required to work more than a 40-hour week. Additionally, pleadings suggest that because the Department did not explicitly approve the overtime, it therefore is not compensable. Noticed depositions in the case include Attorney General Janet Reno and Deputy Attorney General Eric H. Holder, Jr.
The plaintiffs' attorneys have established a Website that provides more information about the suit: www.dojclass.com. Many newspaper articles have appeared on the subject, airing both sides to the dispute. For example, the New York Times profiled the litigation recently. The Committee on Government Attorneys' newsletter will update the status of litigation in the next issue.
A Christmas Spirits present
The Chicago Bar Association's Christmas Spirit's production last December, entitled Virtual Legality, offered special rate tickets for government lawyers. Instead of $50, government attorneys paid $35, a 30% discount! The show, in its 76th year, brought the house down with political, legal and celebrity humor set to song. Don't miss this year's show, 2001: A Case Odyssey, running the week of December 5-10, 2000.
ALJs under scrutiny
Those who are interested in federal employment as an administrative law judge are going to have to wait. As you may know, last April 1999 the U.S. Merit Systems Protection Board (MSPB) issued an initial decision in the class-action suit Azdell and Fishman v. Office of Personnel Management (DC-300A-97-0368-I-1 and DC-300A-97-0369-I-1).
This case challenged the OPM's 1996 adoption of a new scoring formula for its ALJ examination. The initial decision determined that the new formula overcompensated applicants entitled to veterans' preference. The decision may be accessed at www.mspb.gov under "What's New at MSPB." As a result of this decision, all activities related to the ALJ examination are suspended pending further notice.
Task Force of Professional Practice in Illinois Justice Systems
In Public Act 91-0577, the Illinois Legislature created an "independent non-partisan Task Force on Professional Practice in the Illinois Justice Systems" to insure a state justice "system that is staffed by attorneys prepared to render competent representation." The Task Force has embarked on its mission to study appropriate levels of caseloads, adequate salary structures, technological needs and other issues affecting the recruitment and retention of attorneys in Illinois' Criminal Justice System. Its findings and recommendations must be reported to the Governor, the General Assembly and the Illinois Supreme Court no later than May 14, 2000.
Tracking the progress of legislation at the state and national levels is much easier today than in years past, thanks to two Websites devoted to Illinois and federal legislative matters, respectively. Log on to http://www.ilga.gov to reach the Illinois General Assembly's homepage. There, you can track the progress of legislation presently under consideration by the General Assembly, view the text of Public Acts, and find the schedules of the Illinois House of Representatives and Senate, as well as other information regarding the General Assembly.
To track the progress of legislation at the federal level, log on to http://thomas.loc.gov/home/thomas.html/76,14 to reach Thomas, the Library of Congress' Website devoted to the federal legislative process. Named for President Thomas Jefferson, a key figure in the creation of the Library of Congress, Thomas allows users to track pending legislation, view Public Laws, review roll call votes, obtain legislative committee information and provides links to the homepages of the United States House of representatives and the United States Senate. If these addresses do not yet appear in the Links portion of the Committee on Government Lawyers' Website, they will appear there shortly for your convenience.