Voter conundrum: Bar groups send mixed messages about some judicial hopefuls

Judicial candidates from left to right: (row one) Rhonda Sallee, Thomas Gabryszewski, Ioana Salajanu and David Herrera; (Row two) Sean Kelly, Bonnie McGrath, Shay Allen, and Ashonta Rice-Akiwowo; (Row three) Beatriz Frausto-Sandoval, Keith Spence, Mary Melchor, Michael Hayes; (Row four) Gino Betts, Christine Svenson, Alan Jacob, and Karla Fiaoni

Illinois appellate courts have overturned convictions on multiple occasions after finding that former Cook County Assistant State’s Attorney Brian T. Sexton engaged in misconduct.

Christine Svenson was harshly criticized by the Illinois Appellate Court for filing an appeal that failed to conform to court rules, leaving doubts about her knowledge of the law and legal ability.

Judicial candidate Karla M. Fiaoni’s diligence was questioned, and concerns were raised about her handling of cases some felt were left stalled in the courts for an unnecessarily long time.

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Beginning on February 21, Cook County voters started heading to the polls to winnow down the field of 110 judicial primary candidates vying to fill 39 vacancies on the bench. For the majority of races in which there is no partisan contest, the primary elections serve as the final word in who will become a judge in Cook County. This article is part of Injustice Watch‘s continuing coverage prior to the March elections.

These were among the findings of three independent bar groups — the Chicago Council of Lawyers, the Chicago Bar Association, and Illinois State Bar Association — that last week each released their own evaluations of the 110 candidates vying for seats on the Cook County bench this year. Nine other organizations of lawyers –  Asian-American lawyers, black women lawyers, Jewish lawyers, Greek-American lawyers and Puerto Rican lawyers, to name a few – also offer their own ratings of the candidates.

The evaluations serve as one of the few independent sources of information about judicial candidates, and the ratings for most candidates were consistent across all three groups. More than half of the candidates – 66 – received positive ratings from all three groups. Twenty were rated negatively by all three groups, including 12 who did not participate in the evaluation process and thus were given automatic not recommended ratings.

Cook County judicial candidate Karla Fiaoni

Karla M. Fiaoni

But in other cases, the ratings varied wildly from one bar group to the next, creating mixed messages for voters. Sexton (countywide), who did not respond to requests for comment, was found highly qualified by the Chicago Bar Association and qualified by the Illinois State Bar Association. He was found not qualified by the Council, which cited the appellate reversals. Fiaoni (15th subcircuit) received a highly qualified mark from the Chicago Bar Association and qualified by the Council but was deemed not qualified by the Illinois State Bar Association, which cited questions about her diligence.

“That’s quite a disparity wouldn’t you say?” Fiaoni said of her range of bar ratings. She said that negative bar ratings do not define her, and that she could not explain why bar groups who rate her negatively “do what they do.”

An additional 25 judicial hopefuls had less drastic, but mixed, ratings from the bar associations —receiving a negative rating from at least one bar group while being rated positively by others.

Patrick D. John

“This is not a hard science,” Patrick D. John (countywide) said of the evaluation process. John was found qualified by the Illinois State Bar Association, given a not qualified rating by the Council because he lacked complex trial experience, and found not recommended by the Chicago Bar Association for failing to participate in their evaluations.

John, who said he thinks he is qualified to be a judge, noted that five of the nine affinity bar groups that complete the evaluation process together with the Council and the Illinois State Bar Association rated him favorably based on the same information on which the Council found him not qualified.

Appellate reversals, mixed reviews

The Council, in finding Sexton not qualified, raised concerns about the candidate’s conduct in four criminal cases, including three in which that conduct caused the convictions to be overturned.

Related: Review the bar ratings for each of the 2018 judicial candidates.

In one case, the Illinois Appellate Court reversed Michael Thompson’s murder conviction after finding that Sexton’s comments during closing arguments “poisoned” the jury. Sexton told jurors that the defendant acted as the “leg man” for his attorney, getting witnesses to change their testimony, then handing them over to defense counsel to “fix” the case.

“The clear implication of these comments was that defendant and defense counsel were engaged in some nefarious plan to obtain witness recantations and to ‘fix’ defendant’s case,” the appellate opinion states.

In a second case, a conviction was overturned based on Sexton improperly striking from the jury one or more potential jurors based on race, the Council noted. And in a third case, the court reversed a conviction because Sexton improperly referred to the defendant’s failure to testify, the Council wrote.

Brian T. Sexton

Brian T. Sexton

The lawyers group noted one more case in which the appeals court said it was troubled by comments that crossed “the line of propriety,” but the court stopped short of overturning the verdict.

Through a search of the appellate record, Injustice Watch found the case cited by the Council. The appellate opinion describes the prosecutor — whom the opinion does not name — telling jurors that arguments by the defense in a first degree murder case were “a defense of desperation.” The prosecutor also called witnesses for the defense “a joke” and “an insult to your intelligence.”

Injustice Watch reported last week that a federal judge chided Sexton for giving false testimony during Nathson Fields’s 2016 civil jury trial in which he contended he was wrongly convicted of murder.

The Chicago Bar Association said that Svenson is not recommended, noting that rating was made “in the wake of harsh criticism that she received from the Illinois Appellate Court for not following the Appellate Court Rules.”  An association official said the organization would not identify the case; but a search of the appellate record identified a case she handled in which the Illinois Appellate Court found that the plaintiff’s “opening brief is deficient and fails to comply with” an Illinois Supreme Court rule that “governs the form and content of appellate briefs.”

Cook County judicial candidate Christine Svenson

Christine Svenson

At issue was a lawsuit brought by a resident, suing the Cook County sheriff over the county’s policy against holding prisoners in custody at the request of federal officials without any formal order to do so. Svenson was acting as local counsel for the Washington-based Judicial Watch, which has been active in conservative legal battles.

The appellate panel wrote that there was a “complete failure to provide any reasoned argument about the facts of the present case” by the plaintiff. It called the legal brief “completely deficient,” and dismissed the case on that basis.

Citing the appellate case, the Chicago Bar Association concluded that Svenson “does not possess the depth and breadth of legal knowledge and practice experience” to serve as Cook County Circuit judge.

The other two bar associations found Svenson qualified. “There have been a few client complaints concerning her diligence, but on balance, she appears to be a good practitioner,” the Council wrote.

Svenson did not return a request for comment.

Good reviews despite criticism

Other attorneys found to have performed poorly, or even to have committed misconduct in the past, nevertheless received favorable ratings from the bar groups.

Travis Richardson (2nd subcircuit), once censured by the Illinois Supreme Court for keeping a large fee that his client said he had not agreed to, nevertheless was rated well-qualified by the Council, and qualified by the other two groups.

Jonathan C. Green (countywide), who has been accused of withholding evidence on behalf of the city of Chicago in several civil rights lawsuits, was rated qualified by each group. The Illinois State Bar Association wrote of Green, “Some attorneys contacted during the investigation reported that he is capable, competent, civil and fair; a few expressed concerns over ongoing discovery issues in federal court in civil rights cases with the city Law Department, and his role and responsibility concerning those issues.”

Michael Gerber (13th subcircuit), whose false statements to a jury caused a Circuit Court judge to overturn a murder and arson conviction, was given the highest rating by the Illinois State Bar Association and the Chicago Bar Association. The Council wrote that Gerber was considered, as a prosecutor, an “outstanding practitioner” with “very good legal ability and temperament.” But after reviewing the judge’s finding that Gerber misled a jury, the Council report states, “The Council considers these findings to be exceptionally serious. However, the Council also must consider the totality of Judge Gerber’s well-respected career. In a close call, the Council finds Judge Gerber to be Qualified for the Circuit Court.”

Thomas R. Molitor (12th subcircuit) was also disciplined by the Supreme Court, for failing to serve a lawsuit then allegedly lying to his client about the case. The Council called the incident a “minor blemish in an otherwise respected career” and found him qualified. The Illinois State Bar Association rated him not qualified, while the Chicago Bar Association rated him negatively for not participating in the evaluation.

After Injustice Watch reported on concerns among former colleagues in the State’s Attorney’s office about David C. Herrera’s (6th subcircuit) temper toward women, the Council wrote, the article “raises concerns about his temperament and respect for women. Further investigation has added to the Council’s concerns about these issues.” The Council rated him negatively.  The Chicago Bar Association similarly wrote that “serious concerns about his temperament earlier in his career and candor about these concerns” resulted in him not being recommended.

The Illinois State Bar Association, however, rated him qualified. The association made no mention of the temperament issue, writing: “He is considered to have good courtroom ability, to be diligent, and to be creative with his research. He has lectured on legal issues, has been active with bar association and community activities, and in 2017 was named by the Puerto Rican Bar Association as one of the recipient of a Vanguard Award.”

Candidates quit participating

Several of the 12 attorneys who declined to participate in the evaluation process told Injustice Watch that they did not trust the bar groups’ evaluation systems or did not believe they would be evaluated fairly.

Bonnie C. McGrath

Many-time judicial candidate Bonnie C. McGrath (8th subcircuit) cited the dubious ratings given to some candidates as one reason she chose to be “not recommended” by the bar groups rather than participate in their evaluations.

“They shouldn’t pretend that these are any kind of real investigations,” McGrath wrote in an email to Injustice Watch.

McGrath did not participate in the ratings in her judicial run in 2016 either, after having received negative ratings in 1998 and 2010. She and other candidates who did not participate criticized the evaluations process as arbitrary and unfair.

Rhonda Sallee

Rhonda Sallee (5th subcircuit) said she declined to participate in the peer evaluations this year after a negative experience in 2012. That year, the Chicago Bar Association and the Council both found her not qualified, writing that she needed more legal experience; the Council also noted that Sallee’s peers raised questions about her temperament, and reported her to be “overzealous” and “overly aggressive” in representing clients.

“It’s not what I consider to be fair, it’s not objective,” Sallee said of the evaluations, noting that the candidates are not permitted to know who made negative comments to the evaluators. “In criminal court you get a chance to confront your accuser,” she said. But in the Council review, Sallee said, “You don’t get to confront it.”

Three candidates, Cyrus Hosseini (8th subcircuit), Alan Jacobs (12th subcircuit), and Gino Betts (5th subcircuit), told Injustice Watch they did not participate because the bar groups automatically find attorneys with fewer than 10 to 12 years of experience not qualified for the bench. Hosseini, Jacobs, and Betts took issue with the requirement, saying they should be evaluated on the quality of their years of practice.

Bar groups respond

Terrence Murphy, executive director of the Chicago Bar Association, acknowledged flaws in the peer evaluation process but said there is little information available to voters about judicial candidates. The peers reviewing a candidate’s professional background generally get it right, he said.

The Chicago Bar Association includes a rule that ensures attorneys are not ambushed by negative comments from peers, Murphy said. Instead, candidates are given the opportunity to hear any negative feedback before their rating is voted on, and can decide whether they want to respond and continue with the process, rescind their campaign or discontinue the evaluation.

“This process is not intended to hurt or harm anybody,” Murphy said, but is meant to “help determine: Is a candidate qualified to serve as a judge.”

Malcolm Rich, director of the Council, said candidates are allowed to appeal their unfavorable evaluations to the bar group.

“We are stating our reasoning in written form and a candidate has an opportunity to appeal from that write-up,” he said. “They should know why we have found the rating that we have come up with.”

Candidates with highly qualified ratings from all three bar groups:

  • Of the 110 candidates, Kent Delgado (6th subcircuit) stands out: He is the only candidate this year to receive the highest ratings by all three bar groups. The Illinois State Bar Association wrote, “He has substantial trial experience. He is considered to be extremely knowledgeable and very approachable with very high integrity.”
  • In addition to Gerber, Scott J. Frankel (11th subcircuit) and David R. Navarro (4th subcircuit) were the only other candidates to receive the highest rating from at least two groups.

Candidates who took part in the evaluation process and received negative ratings from all three bar groups:

  • Keith L. Spence (countywide): In finding him not qualified, the Council noted concerns about Spence’s lack of complex litigation experience, and wrote that “some respondents – particularly women – are concerned about his temperament, including a lack of cooperation and a patronizing attitude.” The Chicago Bar Association wrote that Spence, a criminal defense attorney, had not disclosed personal litigation, and had concerns about his diligence, punctuality and legal knowledge. The Illinois State Bar Association also cited concerns about his diligence. Spence told Injustice Watch that he disagreed with the bar groups findings, and said of the comment on his temperament and attitude toward women, “That’s not me and I don’t know where it came from.” Spence noted that he was found recommended by two women’s bar groups.
  • Shay T. Allen (5th subcircuit): A solo practitioner, Allen was found not qualified by all three bar groups mainly for his short career and lack of experience. The Chicago Bar Association also mentioned problems with punctuality. Allen declined to comment on his evaluations through his attorney, Jim Doppke.
  • Mary A. Melchor (5th subcircuit): The Chicago Bar Association wrote that Melchor’s “practical knowledge of the law, current court rules and procedures, coupled with her very limited practice experience would make it difficult for her to effectively serve.” The Illinois State Bar Association and Council also noted Melchor’s lack of recent trial experience. Melchor shared an appeal with Injustice Watch that she submitted to the Council requesting a rating reconsideration. Melchor wrote that despite her inability to practice law in the Cook County courts as the Clerk of Circuit Court of Cook County’s Inspector General, it should not take away from her prior legal experience or “cloud” the Council’s view of her credentials. Furthermore, she wrote “the results of my investigations are used as evidence in lawsuits filed against the Clerk’s Office or other complex litigation.”
  • Sean P. Kelly (6th subcircuit): Bar groups found Kelly not qualified for lacking sufficient experience. The Council wrote that Kelly, a prosecutor in DuPage County, “has had substantial litigation experience in mostly non-complex matters and he has relatively few years of practice.” He began practicing law in 2006. “I respect [the bar group’s] opinions,” Kelly said, but “I disagree. I guess the word ‘complex’ could have different meanings to different people, I think I’ve certainly been involved in some complex litigation.”
  • Beatriz Frausto-Sandoval (14th subcircuit): Bar groups were concerned with Frausto-Sandoval’s depth and breadth of legal experience. The Council and Illinois State Bar Association wrote that Frausto-Sandoval, an immigration lawyer, does not have the state court experience necessary to be a Circuit Court judge. In an interview with Injustice Watch, Frausto-Sandoval defended her experience, saying “there are many judges sitting on the bench who did not have a substantial amount of state court experience,” and added that she believes the bench should include judges of diverse legal backgrounds.
  • Ashonta Rice-Akiwowo (15th subcircuit): Rice-Akiwowo was found not qualified by the bar groups who cited her her level of legal experience. The Council wrote that while the solo family law practitioner is seen as smart and respectful, the group was concerned about the “combination of depth and breadth of her experience, particularly in light of the relatively few years she has been a lawyer.” The Chicago Bar Association called her experience “limited.” Rice-Akiwowo said she was unconcerned with the ratings, saying she handles a variety of cases as a solo practitioner and that the bar groups “disregarded the fact that the field of family law itself encompasses many aspects of litigation.”

Candidates who took part in the evaluation process and received negative ratings from two bar groups:

  • Michael A. Hayes (3rd subcircuit): Currently a Chicago police officer, Hayes was found not qualified by the Council, who wrote that “much of his litigation experience is not recent and most of that experience is in less complex matters.” The Council did note that the candidate’s temperament was “unquestioned.” The Illinois State Bar Associated also cited his lack of recent criminal litigation experience. Hayes did not participate in the Chicago Bar Association evaluation. Hayes, who reviews investigatory stop reports for Fourth Amendment compliance issues, said that because of his job, he does not meet the trial experience required by the bar groups. However, he said he believes he brings something unique that is not reflected in the bar association evaluations. “I bring a perspective of understanding the consequences of rulings,” Hayes said. “A police officer’s going to come into contact with that same person again. Most lawyers, they’re at an arm’s distance. They don’t see the consequences of their positions. They don’t see the effect on society.”
  • David C. Herrera (6th subcircuit): Herrera, a former Cook County assistant state’s attorney, was found not qualified by the Chicago Bar Association and Council. Both groups noted that he had the legal abilities to become a judge, but were concerned with his character. The Chicago Bar Association wrote that serious concerns about his temperament earlier in his career and candor about these concerns” led to a negative rating. The Illinois State Bar Association found him qualified, noting his “good courtroom ability.” Herrera did not return a request for comment.
  • Thomas Gabryszewski (10th subcircuit): The Illinois State Bar Association and Chicago Bar Association found Gabryszewski, a personal injury attorney, not qualified for a judicial seat based on his lack of complex legal experience. The Council, noting his legal experience, found him qualified. Gabryszewski did not return a request for comment.
  • Ioana Salajanu (countywide): Salajanu, a commercial and corporation lawyer, was found not qualified by the Chicago Bar Association and Illinois State Bar Association because of her legal experience. The Chicago Bar Association wrote that though she has been practicing law for 17 years, “the scope of her practice and court experience is limited.” The Council, in finding her qualified, wrote that she had substantial motion practice with some complex legal matters. Salajanu said she was not sure how the bar groups found her unqualified. “I’m concerned because I’m not sure the decision accurately reflects my experience,” she said.

The consequences of the ratings on the candidates’ chances remain to be seen until the primary election on March 20, but past judicial elections indicate negative ratings do little to keep candidates from the bench.

Since 2012, 26 judicial candidates who were found unqualified or rated negatively for not participating in bar evaluations have won at least a primary election in Cook County.

“Unfortunately, we’ve seen it far too much,” Murphy, of the Chicago Bar Association said, adding later, “We need to try to help voters really understand and try to be educated about the qualifications.”

Several candidates who won despite negative ratings faced no opposition to their candidacy. In the past six years, six candidates who became judges despite being rated negatively by bar associations faced no opponents in either the primary or general elections.

Injustice Watch fellows Mari Cohen and Olivia Stovicek contributed reporting.

Related: Review the bar ratings for each of the 2018 judicial candidates.