Vincent G. Rinn Law Library

Judge Odas Nicholson ( 1924-2012 ) Was First African-American Woman to Graduate From DePaul Law School

A March 16, 2012 Chicago Tribune story reported the on the death of Judge Odas Nicholson. She was born in Mississippi in 1924 and came to Chicago when she was 13. She was  both a DePaul undergraduate and a graduate of the DePaul Law School.

In 2005 she received The Outstanding Service to the Profession Award from the law school which honors alumni with outstanding achievements in their chosen field or specialty. She was truly a pioneer, achieving many firsts for African-American women. (p.20)

"After graduating Marshall High School, she attended Wilson Junior College for two years before earning a bachelor's degree in philosophy from DePaul University. She was the only woman in her class and the first African-American woman to graduate from DePaul University's law school, according to the Women's Bar Association of Illinois. She was admitted to the Illinois Bar in 1948."

According to the Chicago Defender, "Nicholson was appointed Judge of the Circuit Court of Cook County by the Supreme Court of Illinois in November 1980 and was elected to a full term in November 1982. She served as a Judge of the Circuit Court of Cook County for 14 years prior to her retirement in December 1994. She was the first African-American woman assigned to the Law Division of the Court and the first woman assigned to the Motions Section where she served for eight years. She was also the first woman assigned an individual calendar."

In the Tribune story, William Maddux, a presiding judge in Cook County, and a former collegue of judge Nicholson, is quoted saying  that  "Odas was a trailblazer, no doubt about it," "She had a formidable mind combined with a good dose of common sense."

( Hat Tip to Glennis Jones-Marshall )

Student Law School Suits Affecting Moody's Ratings

Recent  law suits filed by graduates from several law schools, have not only garnered much publicity but are having an impact on the credit ratings of the schools involved.  This may not have been on the minds of the student plaintiffs. But one suspects that administrators at the schools have probably considered the possible impact.

Moody's maintains credit ratings for eight of the fifteen schools sued, including: Southwestern Law School; California Western School of Law; Brooklyn Law School; New York Law School; Golden Gate University; DePaul University; Hofstra University; and the University of San Francisco.

A Thomson Reuter news posting states, "Class-action lawsuits recently filed against fifteen law schools for fraud are "credit negative" because they could cause reputational damage and a decline in tuition revenue, according to a report released this week by the ratings agency Moody's Investors Service."

Local graduate court cases, allege violations of Illinois Consumer Fraud and Deceptive Business Practices Act  claiming fraud and negligent misrepresentation. They are seeking restitution, damages and independent audits of employment and salary data. 

In the cases involving the first three law schools that were sued, Thomas M. Cooley Law School in Michigan, New York Law School and Thomas Jefferson School of Law, the schools have moved to dismiss the lawsuits, arguing that they were strictly following the  American Bar Association rules on job-placement data.

In January, Moody's revised its outlook on New York Law School from "stable" to "negative,". A summary of the Moody's report found online, provides a look at what factors the rating service is considering in evaluating the law schools.

The summary indicates that the downgrade for New York Law School, is due to conditions   "...reflecting recent enrollment volatility and uncertainty surrounding the outcome of a recent lawsuit and its potential impact on the school's market position and longer-term student demand..." The progress of the suits  will  continue to be monitored for  the potential impact on the School's market position. Addressing what could make the ratings go down, the report states  that, " An adverse outcome of the lawsuit which could lead to financial distress or reputational risk,"

While some of the emerging difficulties for law schools stem from structural changes in the legal marketplace , (See "Practicing Theory: Legal Education for  the Twenty-First Century").  The law school graduate law suits, focus on the internal practices at the schools. Practices that may have forestalled the impact of these structural changes on law schools, but that must now be re-examined.

 

Illinois Supreme Court Case Rules Physically-Coerced Confessions Are Never "Harmless Error"

Last September, the criminal case of  Illnois v. Wrice went to the Illinois Supreme Court. It was one of many cases in which defendants have claimed that they were tortured to confess by police Cmdr. Jon Burge and his subordinates. A decision in this case was considered very important by both  by the State and the defendants and their attorneys. So important that over 60 signers, including several former state and federal judges and prosecutors, and dozens of  lawyers, legislators and legal scholars, submitted a friend-of-the-court brief. There were four DePaul law professors among these signers.

At stake was the question of whether physically coerced confessions could be treated as "harmless error" when used as substantive evidence in a criminal trial. Previous cases in Illinois had followed the principle enunciated in  People v. Wilson, 116 Ill. 2d 29  (1987) that a new trial was required because “[t]he use of a defendant’s coerced confession as substantive evidence of his guilt is never harmless error.”

This case was the third attempt by Mr. Wrice to obtain a post-conviction review of his claim of such treatment at the hands of Cmdr. Burge's officers. He argued that in his previous attempts the information from the Report of the Special State’s Attorney, Edward J. Egan on the activities of the Burge unit, was not available to help substantiate his claims.

The Appellate Court had agreed that he had demonstrated adequate "cause and prejudice", to get a hearing on his claims. However, the State was asserting that since there was other evidence presented at trial, the coerced confession constituted only "harmless error" which should not justify the hearing or possibly a new trial.

In opposition to the precedent of previous Illinois decisions that followed People v. Wilson, the State was citing  the decision in a US Supreme Court in the case Arizona v. Fulminante, 499 U.S. 279 (1991),. In which five members of the Court, determined that coerced confessions are subject to harmless-error analysis. However,  the Illinois Court describes this decision as :  "In a fractured opinion the Supreme Court decided three issues, each issue commanding a different five-justice majority." 

Not only was that decision "fractured" but it involved a confession that was gotten through deception and not through physical coercion or much less torture. The Illinois Supreme Court concluded "... that Fulminante does not mandate that we abandon the rule in its entirety. Rather, we may recast the rule ( from Wilson) as follows: use of a defendant’s physically coerced confession as substantive evidence of his guilt is never harmless error."

"In sum, without additional guidance from the Supreme Court, we will not assume that the five justices in Fulminante who determined that the harmless-error rule applies to coerced confessions intended the rule to apply in cases such as the one now before us, involving alleged police brutality and torture."

"On this basis the Court affirms the Appellate Court in allowing Mr. Wrice to file another postconviction petition and sends the case back to the trial court  for appointment of post conviction counsel and second-stage postconviction proceedings." 

This was one of the important results that the  amicus brief hoped for. The Court did not address the suggestion in the brief that they go beyond this and  ".. exercise its supervisory authority to require a full inquiry into the case of each still-incarcerated Burge victim who has yet to receive a hearing on credible claims that his confession was coerced through torture."

Going beyond the Wrice case into this un-chartered judicial territiory, was probably more than the court expected to do. However, the ruling helps ensure that others defendants will  have a chance to get trials without confessions based on torture. Wrice's case could have far-reaching impact on how Illinois deals with such cases in the future and help insure the underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system.

 

Family Law Center Lecture : Rape Allegations in the 21st Century

Four DePaul Law Faculty Sign Amicus Brief In IL Supreme Court Burge Torture Case

Four DePaul Law faculty members have signed a friend of the court brief in an appeal to the Illinois Supreme Court in the case of People of the State of illinois v. Stanley Wrice. They include : M. Cherif Bassiou, Leonard L. Cavise, Andrea D. Lyon and Judge Warren D. Wolfson. The four faculty  join 60+ other signers, including several former state and federal judges and prosecutors, and dozens of  lawyers, legislators and legal scholars. Stanley Wrice is one of as many as 20 still incacerated criminal defendants who were convicted on the basis of confession extracted under torture by former Chicago police commander Jon Burge and his officers.

This case and appeal are significant because it may decide whether the convicted defendants who are in prison, can get a hearing to consider the now very credible evidence of the use of torture in eliciting confessions which were used to convict them. Most of these men have exhausted their formal appeals.

Last year, an Illinois appellate court granted Mr. Wrice an evidentiary hearing into the torture allegations. But the state special prosecutor is challenging this grant, claiming that the use of torture in getting a confession was just "harmless error" and that Wrice would have been convicted anyway.

While a few persons convicted with torture-induced confessions have been released by the efforts of attorneys pursuing their own cases. Many still languish in prison without any formal means to challenge their convictions with the new evidence that has accumulated over time.

The  Illinois legislature has mandated  a procedure to provide such an option through the creation of the  Illinois Torture Inquiry and Relief Commission. The Governor signed the bill in August 2009. DePaul law Professor Cavise has been named to the eight member Commission. While this procedure at least provides for the possibility of a review of the convictions in the Burge torture tainted cases, there may be significant shortcomings in this process.

For their part, the petitioners must "...waives his or her procedural safeguards and privileges including but not limited to the right against self-incrimination under the United States Constitution and the Constitution of the State of Illinois,agrees to cooperate with the Commission, and agrees to provide full disclosure regarding Inquiry requirements of the Commission." While the Commission is not a court of law, one can understand how persons who have already been denied their constitutional rights, might be hesitant to waive fundamental rights as part of this process.

A March 2011 article in the Chicago Tribune, raises some of the problems with the Commission. It states that while the Commision may be well-intentioned it falls short because of limited authority and resources.The Commission has subppoena power to independantly investigate claims. But besides the Director, there is only provision for one staff attorney and one paralegal. It can only recommend the case "for consideration" to the Cook County Circuit Court's chief judge. "What the chief judge is supposed to do with that is completely unclear," said Locke Bowman, director of the Roderick MacArthur Justice Center at the Northwestern University School of Law who has represented several Burge accusers..."

These deficiencies make the relief requested in the amicus brief more important for not only provisding a more certain process. But also for setting a clear precedent from the Illinois Supreme Court that "...the Burge torture scandal — characterized by extremc physical brutality and disregard for law and basic human rights — should not be the occasion to announce an unprecedented extension of the harmless error doctrine."

The brief makes legal, policy and moral arguments for its recommendations to the Illinois Supreme Court which are persuasive. But they do call on the court to recognize and exercise judicial powers that are not necessarily well-established or recognized. The brief calls on the court to depart from the relevant ruling from the U.S. Supreme Court and to exercise its "supervisory powers" in fashioning the proposed hearings process.

As the brief states : "Similarly in this case, the traditions and values of Illinois are starkly at odds with the harmless error approach to coerced confessions that the United States Supreme Court adopted in Fulminante and which the State urges upon this Court. It is simply intolerable that any person should languish in prison as a result of a conviction that rests even in part on a confession that Burge and his men are credibly claimed to have obtained by torture..."

Also : "The Court should exercise its constitutional supervisory powers." "...The Court has repeatedly noted that its supervisory authority is a sweeping power, constrained only by the exigencies that summon forth its use..."

The odds of success of this approach may still be in question. As DePaul law Professor, Jeffrey Shaman, states in his book,"Equality and Liberty in the  Golden Age of State Constitutional Law" (2008) :

“… In the criminal law arena, state courts may augment rationality review to assay the constitutionality of criminal laws that set forth differential penalties for similar offenses, that treat men and women differently, or that discriminate against juveniles. And in a few decisions, though certainly not many, courts have accentuated rationality review to guard against abuse of prosecutorial discretion. While the vast majority of cases involving economic rights or criminal law still evoke nothing more than the most minimal form of judicial scrutiny, the number of exceptions to this practice increases, albeit slowly, with each passing year.” [p.120]

The court call for this case is September 15. Illinois citizens will be waiting to see whether the Illinois Supreme Court can show the same reformer's courage that former Governor Ryan displayed when dealing with the egregious, life-or-death problems in the administration of justice in our state.

 

Supreme Court Librarian & Former DePaul Rinn Law Library Director Retiring

A posting yesterday, on the Law Librarian Blog, on the occasion of the announcement of the retirement of the U. S. Supreme Court Librarian, Judith Gaskell, provides a look back by two of the Blog's editors who knew and worked for Judy, years ago. One of them , Mark Giangrande, is currently on the Rinn Law library reference staff.

Link to posting : "Chief Justice Roberts Announces Retirement of Supreme Court Librarian Judy Gaskell"

DePaul Clinical Professor Co-authors Book On Criminal Justice & the LGBT Community

Ms.Joey Mogul is a partner at the People’s Law Office in Chicago and also director of the Civil Rights Clinic at the DePaul University College of Law. She and her co-authors, Andrea Ritchie , a police misconduct attorney and organizer in New York City and Kay Whitlock, Montana-based writer who has been an LGBT activist for 40 years, have written a powerful indictment of the criminal justice system's continuing abuse of members of the LGBT (Lesbian Gay Bi-sexual Transgendered) community.

As one of the reviewer's quotes says, “If you think the struggle for LGBT equality is only about marriage and the military, Queer (In)Justice will be a revelation..." Using the  stories and the voices of many of the folks that she has represented, Mogul & her co-authors situate the "legal" abuse of members of the LGBT community within the historical context of the use of the criminal justice system against Native American and freed Black slaves.

The control and punishment of people seen as deviating from the accepted social norms, is seen as a common historical thread that also includes people with different views of gender and sexuality. The authors say that even while important legislative reforms have been won to preserve the rights of gay people, many of the not-well-off LGBT folks are being left behind and are still subject to not only discrimination but brutality.

"The authors unpack queer criminal archetypes-like "gleeful gay killers," "lethal lesbians," "disease spreaders," and "deceptive gender benders"-to illustrate the punishment of queer expression, regardless of whether a crime was ever committed."

In the introduction of the book the authors state that, "Laws typically define crime in ways that many people take to be neutral, unambiguous, and reflective of widespread social consensus. While it may be comforting to believe that evenhanded enforcement of criminal laws will ultimately produce safety and justice, such beliefs are not grounded in current or historical realities."

The book identifies the practice of mass incarceration as one of  the historical tools used by a society to implement such policies. "Mass incarceration is neither a reflection of violence run amok, nor an indication that certain populations are naturally prone to crime. It is deeply rooted in the history and maintenance of racial power relations, and its racially disproportionate impacts are profound."

To mount an effective opposition to the abuses identified by the book, the authors say we must develop a more complete understanding of how such factors like race,class,national origin and gender, help define what behavior is criminalized and who becomes the target of the criminal justice system. IN regards to the LGBT community the authors say that they must become a vocal part of the debates around policing and punishment.

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Also see : "Recognizing QUEER (IN)JUSTICE"    By Liz Lyons   in  The Advocate, Center For Public Interest Law, DePaul College of Law, Spring 2011 p. 5

UN Libya Commission Report Released

A posting  last month on this blog, "UN Libya Panel & International Criminal Court Grapple With Difficult Issues", commented on the difficult work that the UN appointed commission, lead by DePaul Professor of law emeritus, M. Cherif Bassiouni, has been carrying out.

A June 1 UN press release has announced the advanced version of that commission's report. The 91 page report includes a description of the background for the conflict that started as peaceful protest against the Qadhafi regime; escalted into a civil war; and now includes direct military action by a NATO-lead coalition.

The report presents the findings of the commission with sections for specific violations and a long list of recommendations. Becasuse the commission did not have much time to carry out it's work, one key recommendation is an extension of the commission's mandate to continue its investigations.

While reviewing a huge amount of submitted information and analyzing it and reaching  conclusions, the report states that ".. the commission feels that it is not in a position of identifying individual criminal responsibility or command responsibility..." Such charges may await the parallel work of the International Criminal Court that the Commission has consulted with.

In brief,  the report states that "...it should be clear that a significant number of international human rights law violations have occurred as well as war crimes and crimes against humanity as described above. These violations and crimes have been committed in large part by the Government of Libya..."  "...There have also been violations by the opponents of the regime which are also described in the report..."

However, ""...On the basis of the information currently before the Commission, it is not of the view that the violations committed by the opposition armed forces were part of any “widespread or systematic attack against” a civilian population such as to amount to crimes against humanity."

In regards to reports and charges that the NATO-lead military campaign may also have been reponsible for violations against civilians, the report states that "Despite the reports received, while in Tripoli, the authorities did not show to the Commission any evidence of civilian areas targeted by NATO forces." "Furthermore, the Commission has not seen evidence to suggest that civilian areas have been intentionally targeted by NATO forces, nor that it has engaged in indiscriminate attacks on civilians."

( Hat Tip to Judge Wolfson )

Tiered Law Firm Employment Market A Welcome Development ?

A recent article in the DePaulia,"The price tag of an education", looked at how student debt might be impacting applications to college and law school.For the Depaul College of Law, a 17% decline in applications is reported by Michael Burns, Director of Admissions for the the law school. For all law schools, USNEWS reports that "So far in 2011 there have been 66,876 applications, with several weeks remaining in the process—an 11.5 percent drop from this point a year ago, according to the Law School Admission Council."

With the impact of the economic crisis on the amount of legal work and on what clients are willing to pay for the work done, law firms have not only curtailed hiring but have laid off existing associates, they already had on board. Decreased law school applications may actually be a good sign that prospective law students understand how many of their peers who have graduated, are now trapped by overwhelming student loans without a suitable job to pay them back.

In the DePaulia article pre-law advisor, Professor David Barnum, observes that there has always been a bimodal distribution of salaries for lawyers. He says that prospective students still believe that they will wind up on the upside of that distribution. Perhaps a bit of "magical thinking" given the grim employment prospects out there.

A May 24 article in the New York Times points to a new development in the law firm market that may add another bump to the  distribution. One with an additional sector of legal employment that had not been present before.

The article relates that big firms had to rein in the salaries they had been paying new associates due to the changing economic pressures. But many are not willing to be the first to make unilateral reductions for fear of losing the best talent and possibly affecting their reputations.

But it appears that law firms have borrowed the concept of a tiered system of work and compensation, to lower costs and retain productive attorneys. To make the system work, other incentives must be provided to make the lower tier acceptable or even preferred by new law graduates.

The new tier does free associates from the grueling demands for certain levels of billable time and the usually unpredictable work schedules faced by many attorneys. Less pressure and more family time are traded for salaries that are one half to one third of the usual big firm starting salaries. With loan repayment arrangements based on a percentage of income, these new-tier attorneys can at least begin paying back their loans.

From a broader market perspective, these new less costly jobs also reduce the pressure for firms to outsource legal work abroad to keep cost competitive. While multiple tier work arrangements can breed resentments due to the disparities in pay, keeping jobs in the country can be very significant for those laid-off attorneys and still unemployed graduates, weathering the economic crisis.

UN Libya Panel & International Criminal Court Grapple With Difficult Issues

In late April the United Nations authorized an  inquiry into the violence and human rights abuses in Libya since forces supporting Muammar Al-Qathafi began a crackdown against protesters earlier this year. 

The panel is lead by Professor Cherif Bassiouni, Professor emeritus at DePaul’s College of Law, and an Egyptian jurist and war crimes expert who has previously served as a UN rapporteur;  Asma Khader, a Jordanian-Palestinian lawyer who serves on the executive committee of the International Commission of Jurists; and Canada’s Philippe Kirsch, who was the first president of the International Criminal Court.

While mostly motivated  by the reported actions of the Gadhafi forces, the investigation includes "all human rights violations — and it applies to anyone and any party. “ , according to Bassiouni. This could also include ”… actions of the NATO-led mission that has been enforcing a U.N.-sanctioned no-fly zone over Libya and targeting military forces on the ground.”

The panel's report is expected to be completed by June 17. But  Bassiouni said the panel already plans to ask for more time to investigate. "This is a very short period of time to be able to do the work," Bassiouni said. "We will do the best we can, but it is our intention to recommend an extension."

Within the last few  weeks, events seem to be out-pacing the work of the panel. “On 4 May 2011, (ICC) Prosecutor Luis Moreno-Ocampo informed the United Nations Security Council that in a few weeks he will request the judges of the International Criminal Court to issue arrest warrants against three individuals for crimes against humanity committed in Libya since 15 February 2011.”

According to the evidence collected so far, (ICC) Prosecutor Luis Moreno-Ocampo  states  that “Crimes against humanity have been and continue to be committed in Libya, attacking unarmed civilians including killings and persecutions in many cities across Libya”

Both the investigatory panel and the ICC have their own mandate. According to Professor Bassiouni, "We don't work for the ICC, they don't work for us. We have a mandate, they have a mandate. We have, however, decided that we are going to have a collaborative relationship,"

It will be interesting to see how the arrest warrants from the IIC might affect the continuing work of the panel. Some might argue that once Gadhafi is subject to arrest warrants, he will be  bound to dig in his heels. That may be the short term impact. However,  the long term interests of the Lybian people as a whole, may best be served “..when those subject to arrest warrants are permanently removed from their lives.” The arrests warrants preclude the option of a deal  being made that maintains war criminals in position of power.

Also to be addressed by the panel, are issues of possible abuses by the NATO forces, as Professor Bassiuoni’s earlier comment left that possibility open. The political positions of UN member states like Russia & China, will not let this aspect of the investigation be forgotten.

“Russia and China accuse the coalition of going beyond the UN mandate, particularly with strikes such as a raid on Saturday in which one of Gaddafi's sons and three of his grandchildren were killed.” Vitaly Churkin, Russia's UN envoy told the security council, “"Unfortunately it must be noted that actions by NATO-led coalition forces also lead to civilian casualties. This took place in particular during recent bombings of Tripoli,"

The Vatican has also criticized the continuing NATO military actions, “Giovanni Martinelli, the Vatican's delegate in Tripoli, called for a halt to NATO air strikes in Libya and for the West to negotiate with Gaddafi's government.”