Prisoner who challenged conviction based on judge’s deception wins new trial

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A 59-year-old Cook County man has long contended that he had been wrongly convicted and sentenced to life in prison because the judge who presided in the case had won office by deceptively claiming he lived in northwest Chicago.

The issue threatened to opened the door to an unknown number of other prisoners who may have been sentenced by Francis X. Golniewicz III, from the time he took office in 1994 after winning election from the 10th subcircuit until he was removed from the bench in 2004 by the Illinois Courts Commission, the agency responsible for disciplining errant judges.

This month Cook County Circuit Judge Geary W. Kull vacated Earl Kelly’s armed violence conviction on another basis altogether, ruling that Golniewicz had violated Kelly’s right to choose his own attorney, and that lawyers spanning two decades had inadequately represented Kelly by failing to raise the issue on appeal, Kelly’s current lawyer, Steven Becker, said.

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Kelly was deemed a habitual offender at trial based on two prior armed robbery convictions and sentenced to lifetime prison term. On Friday he pleaded guilty to possession of a controlled substance with intent to deliver, and was set to be immediately released from prison.

Kelly had argued in post-conviction proceedings that his conviction should be overturned both because Golniewicz had prevented Kelly from hiring the attorney he desired, and because Golniewicz had not been legally elected.

Kelly hired a private attorney before trial who came to court and sought a one-month delay to give him time to prepare for a trial, according to court records. Goniewicz told the attorney he could only represent Kelly in court if he was prepared to go to trial that day, the records show.

An appointed public defender represented Kelly at trial, which Kelly’s petition had contended violated his 6th Amendment right to be represented by an attorney of his choosing.

Illinois Dept. of Corrections/Chicago Sun-Times

Earl Kelly (left) and former judge Francis X. Golniewicz III

Kelly also contended that because Golniewicz had won election by duping voters and state officials about his residence, he had no authority to preside over the trial.

Becker argued that because Golniewicz had not met the Constitutional requirements to get elected, his actions while in office should be void.

In 2012, the Illinois Appellate Court ruled that claim could have merit, and ordered the case sent back to the Circuit Court for consideration.

Judge Kull denied Kelly’s request to invalidate the conviction based on questions about Golniewicz’s judicial legitimacy some months ago, Becker said.

“I think there’s definitely life in that argument,” Becker said, adding that he would have appealed the issue had Kelly not prevailed on the 6th Amendment issue.

Kelly said in a phone interview after his release that he plans to keep pushing on the issue of Golniewicz’s validity. He said he was hoping for a favorable ruling on that issue, but feared that courts would avoid doing so because of the the potential flood of similar cases that could be brought.

“What I’m looking at now is still a way to go after the judge for a violation of due process,” Kelly said, noting that he may take the issue of Golniewicz’s legitimacy to the civil courts.

The Courts Commission in 2004 ordered Golniewicz removed from office—its harshest possible penalty—based on evidence both of his fraudulent election and his conduct in office. Golniewicz, the son of a judge, first was appointed to a vacancy on the bench. When he ran for the 10th subcircuit seat, covering much of Northwest Chicago, he listed his address as his parents’ home in the 10th subcircuit, rather than his home in suburban Riverside 13 miles away where he lived with his wife and children. In a campaign flyer, Golniewicz described himself to voters as a lifelong resident of St. Viator’s parish, according to court records.

The commission found that the address he listed for purposes of being elected to be an “imaginary” address, and found that Golniewicz “engaged in a scheme to conceal his permanent abode.”

Further, the commission found Golniewicz violated the judicial code while on the bench.
The commission noted one instance in which Golniewicz, disappointed with a jury verdict,tore up jury participation certificates and said aloud that the jurors did not deserve them. In another, he told a defendant who he found not guilty to “be careful. Be real f—— careful.” In a third instance, Golniewicz told an African American defendant during an exchange “When I’m talking to you, Boy, you look at me.”