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December 23, 2004


Maag suit, pt. II: What trial lawyers think

Yesterday, I noted (see also back links there) that Gordon Maag, the sore loser in Illinois's Supreme Court race -- the most expensive judicial race in American history -- has filed suit against the Illinois State Chamber of Commerce and the Coalition for Jobs, Growth, and Prosperity for defamation over allegedly false charges in a political flyer, to the sum of $110 million (who knew a state judicial seat paid so well?). Our editor has more on overlawyered, with lots of links.

Although local newspapers have condemned the suit, Madison County lawyer and blogger Evan Schaeffer finds much to like and agrees with Maag attorney Rex Carr that "the charges are so blatantly false that no one could make them without lying or recklessly ignoring the truth." (The legal standard for libel against a public official is "actual malice," i.e., that you published material you knew was false or in reckless disregard of the truth.) Evan goes on to take up each part of the flyer, point by point, and asserts that each part meets this high threshold. (Read the post in its entirety, including all the comments -- our own Ted Frank has some good observations.) To me, Evan's very analysis -- and its sloppiness and one-sidedness -- gives insight into how trial lawyers think (and goes a long way toward showing why there's no way Maag should be able to win his case).

I've looked up each case alluded to in the flyer myself, and I'll address each in turn below.

In essence, the flyer (PDF) -- entitled "In Southern Illinois, the Wheels of Justice have ground to a screeching halt . . . Gordon Maag's Record On Crime: embarrassing -- and dangerous" -- is a political document designed to paint Maag as "soft on crime." Maag's suit goes so far as to suggest that alleging that his record was "embarrassing" and "dangerous," and that his decisions were "one of the reasons jobs and employers have been fleeing southern Illinois" constituted libel -- the type of broad standard that would make essentially any political statement suspect.

But the gravamen of Evan's defense comes down to the six cases alluded to in one-sentence summaries on the back of the flyer. Indisputably, each involved a case over which Judge Maag sat as a member of an appellate panel that ruled in favor of a criminal defendant, and in each case, Judge Maag voted in favor of the criminal defendant and against the state.

Thus, the argument suggested by the flyer -- that Maag was soft on crime -- was supported by his rulings (even though I agree with Maag's position on one or two of them). (The "soft on crime" purpose is only explicit on the flyer itself through the headers for each case, e.g., "Letting a Murderer Back on the Streets," "A Mistake with Consequences," "'Technicality' Justice?," "Overturning the Conviction of a Sexual Predator." Certainly, one might just as well call an anti-civil-liberties, pro-state judicial record "embarrassing" or "dangerous"; and the link between the criminal verdicts and job loss is tenuous (a link between job loss and his civil record, I'd expect, would be far more compelling); but such arguments are clearly matters of opinion, not libel law.)

How then does Evan claim that the flyer is libelous? Essentially, he nitpicks the specifics of how each case is described. For clarity, I'll list the cases as they appeared on the flyer (with numbers inserted, for clarity), then address Evan's arguments.

1. What was he thinking?

Judge Maag reduced a criminal's sentence for a brutal stabbing because he didn't think it was 'exceptionally brutal' and 'wantonly cruel' . . . the victim was stabbed in the face, neck and chest with a butcher knife. People v. Romell Johnson, Docket No. 5-99-0637, 333Ill.App.3d935.

2. Letting a Murderer Back on the Streets

Judge Maag reduced the jail time for a shooting conviction, only to allow the four-time felon to later commit murder. People v. Marcus Jackson, Docket No. 5-96-0243, 299Ill.App.3d323

3. A Mistake with Consequences

Judge Maag reversed a drug dealer's conviction, allowing them to continue trafficking crack cocaine. People v. Samuel Yarber, Docket No. 5-95-0143, 279Ill.App.3d519

4. Questionable Judgment

Judge Maag overturned a 1st degree murder conviction because the jury was not given the correct instructions for a lesser crime . . . huh? People v. Larry Biggerstaff, Docket No. 5-94-0695, 174Ill2d571

5. 'Technicality' Justice?

Judge Maag turned a man convicted of soliciting the murder of a pregnant woman free, on a technicality. People v. William Terrell, Docket No. 5-02-0367, 339Ill.App.3d413

6. Overturning the Conviction of a Sexual Predator

Judge Maag let a convicted child predator back on the streets because the trial judge read the jury testimony from the six year old victim; the jury had already heard this testimony. People v. Gary Miller, Docket No. 5-98-0434, 311Ill.App.3d.772

So what's wrong with these quotes, so much that Evan thinks they meet the standard of actual malice? Well, Evan repeatedly notes, "three judges participated in the decision." True -- at issue was Maag's record as an appellate, not a trial, judge. But does that mean that the flyers should have stated something like "Maag was part of a panel that..."? I hardly think so. To do so would have weakened the statements' power and added little to the common voter. The point at issue was the votes -- and Maag in every case voted on the side criticized on the flyer.

Evan also objects that in four of the cases (2, 4, 5, 6), Maag's panel merely "remanded" the case for a new trial -- and thus that the language in the flier ("reduced the jail time," "overturned a . . . conviction," "turned . . . free," "let . . . back on the streets") isn't right. Well, while Evan is technically right -- the state could have retried the cases and gotten the identical verdicts again, in theory (except for case 5) -- in reality, the reversal and remand generally does precisely what the flyer alleges, i.e., it gets them back on the streets sooner.

Indeed, let's look at case 2 -- in which Evan specifically challenges the wording of the flyer, which is (nuances noted above possibly excepted) entirely correct. Evan asserts:

While the flyer states that a murderer was allowed "back on the streets," this is just plain wrong. No one was allowed "back on the street" and no "jail time" was "reduced." Instead, the case was remanded for a new trial because the state produced a gun into evidence without demonstrating that it had anything to do with the crime.

Well, the defendant Marcus Jackson was originally sentenced to 20 years in jail, in 1996. Jackson had shot the victim in the chest from a car window at point blank range; the victim knew Jackson, told the police he was the shooter, and subsequently identified him in a police lineup. As Evan notes, the panel -- in a decision authored by Maag -- reversed and remanded because "the state produced a gun into evidence without demonstrating that it had anything to do with the crime." Maag's opinion stated: "The State did not offer any testimony to establish that the .357 Magnum found when Jackson was arrested was capable of producing an injury such as the one suffered by Rhodes. Furthermore, the State did not offer any testimony that the .357 Magnum admitted was similar to the weapon used to commit the crime."

What then happened? Well, in 2001 -- a scant 5 years after the 1996 conviction and 20-year sentence reversed by Maag's panel -- the same Marcus Jackson was arrested in the same county (St. Clair, Illinois) for first-degree murder (No. 01-CF-844). Hmmm... obviously, then, Jackson's "jail time" was "reduced" from his original 20-year sentence such that he was "back on the streets" 5 years later to commit murder, directly as a consequence of Judge Maag's decision for the panel to reverse his conviction and remand for a new trial.

A look at Jackson's prior criminal record also shows a drug charge in 1989 (No. 89-CF-440), a burglary in 1990 (No. 90-CF-614), and a weapons charge in 1992 (No. 92-CF-325). So, really, what's to dispute about the flyer's characterization of this case ("Letting a Murderer Back on the Streets: Judge Maag reduced the jail time for a shooting conviction, only to allow the four-time felon to later commit murder.")? If that's libelous, a lot of politicians and political advocacy groups have problems...

An examination of some of Evan's other objections to the flyer/defenses of Maag's libel suit reveals them as similarly picayune, if not baseless.

In case 6, Judge Maag was part of a panel that reversed the conviction of Gary Miller for the "offense of predatory criminal sexual assault of a child" (720 ILCS 5/12-14.1(a)(1) (West 1996)). Just as the flyer suggests, the child predator's conviction was overturned "because the trial judge read the jury testimony from the six year old victim; the jury had already heard this testimony." Evan argues that the flyer should have clarified that the judge's re-reading of the child's testimony was deemed improper because it violated the confrontation clause of the sixth amendment. Why? It's no more relevant to the truth of the flyer's contention than whether the admission of the gun in case 2 was actually plain vs. harmless error. It would be a strange world indeed were political flyers targeting the general public required to include such legal nuance.

So too is Evan's objection to the flyer's presentation in case 5 nonsensical. The flyer states: "Judge Maag turned a man convicted of soliciting the murder of a pregnant woman free, on a technicality." Evan responds: "Though the flyer states that the man 'solicited murder,' the facts of the case, as determined by the jury, demonstrated that he did not solicit murder." Well, no. The flyer doesn't state that the man solicited murder, but rather that he was convicted of soliciting murder. He was. The decision itself states: "After a February 2002 bench trial, the defendant, William R. Terrell, was convicted of one count of solicitation of murder (720 ILCS 5/8-1.1(a) (West 2000))." Moreover, I note that the case was a bench trial -- not a jury trial as Evan suggests. On de novo review, the appellate panel (including Maag) determined that the evidence was insufficient to support the verdict. As far as I can tell, the only thing one might quibble with is whether such a finding constituted "a technicality." But it's important to note that the court's decision was a technical one -- the defendant was clearly intending to commit a murder (even if his actions didn't technically constitute an attempt or solicitation).

So what about case 4? Again, the flyer gets it right when it says "Judge Maag overturned a 1st degree murder conviction because the jury was not given the correct instructions for a lesser crime . . . huh?" The defendant Larry Biggerstaff was convicted and sentenced to 50 years in prison for first-degree murder. Biggerstaff went to the home of an acquaintance and shot and killed him after a dispute earlier in the day. The defense counsel successfully got the judge to give the jury a charge of involuntary manslaughter in addition to first-degree murder. The instructions read:

The defendant is charged with the offense of first degree murder. Under the law, a person charged with first degree murder may be found (1) not guilty; or (2) guilty of first degree murder; or (3) guilty of involuntary manslaughter. Accordingly, you will be provided three verdict forms; 'not guilty of first degree murder', 'guilty of first degree murder', and 'guilty of involuntary manslaughter.'"

The jury convicted of first-degree murder. Judge Maag's appellate panel reversed because the jury had not been provided a separate "not guilty" form for involuntary manslaughter. But because involuntary manslaughter is a lesser included offense of first-degree murder -- it would be impossible to be guilty of murder yet innocent of manslaughter -- the decision does make one say "huh?" given that the jury found Biggerstaff guilty of first-degree murder and it had a form by which it could have found him not guilty of the same. Again, though, Evan wants to argue the merits of the decision rather than the accuracy of the flyer. Ultimately, he's disputing the accuracy of "huh?".

So then we come to case 1 and case 3, the two cases where the flyer does actually get it somewhat wrong. In case 1, the flyer says that "Judge Maag reduced a criminal's sentence for a brutal stabbing because he didn't think it was 'exceptionally brutal' and 'wantonly cruel' . . . the victim was stabbed in the face, neck and chest with a butcher knife." Evan accurately notes that the actual reversal was based on the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that "'[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" Judge Maag's panel reduced defendant Romell Johnson's sentence from 50 to 30 years because the Illinois statute had a two-tiered sentencing scheme wherein the sentencing judge, not the jury, determined whether a longer sentence was warranted because a crime was "exceptionally brutal" and "wantonly cruel," and that such a determination was an added element of the offense by the Supreme Court's logic. So as Evan notes, there's nothing to suggest that Judge Maag himself "didn't think" the evidence met that standard.

(I do note, though, that the flyer's rhetorical question "What was he thinking?" is reasonable. As the dissent noted, not only was the case tried before the Supreme Court's Apprendi decision, but the case was a bench, not a jury, trial, by the defendant's agreement. So the trier of fact here, the judge, was indeed the one who reached the determination that the "exceptionally brutal" and "wantonly cruel" standard had been met.)

Evan is also right that the flyer's characterization of case 3 is inaccurate. The flyer says: "Judge Maag reversed a drug dealer's conviction, allowing them [sic] to continue trafficking crack cocaine." As Evan points out, the defendant Samuel Yarber was not actually convicted; rather, Judge Maag's panel affirmed the trial judge's exclusion of two pounds of marijuana on fourth amendment grounds. (I'll note that the Illinois attorney general's office deemed the case important enough to appeal the decision not only to the state supreme court, 168 Ill. 2d 623, but also the U.S. Supreme Court, 519 U.S. 1150, neither of which heard the case.)

But Evan goes on to assert: "Whether Mr. Yarber sold cocaine after his ordeal is anyone's guess, but he probably didn't: the case involved pot, not cocaine." Well, no -- again, Evan gets it wrong. In a subsequent case in the United States District Court for the Central District of Illinois (No. 00-20031-001, McCuskey, J.), "Samuel Yarber pleaded guilty pursuant to a written plea agreement to one count of possession with intent to distribute crack, 21 U.S.C. 841(a)(1), and one count of possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. 924(c). He was sentenced to a total term of 117 months' imprisonment." 2002 WL 21951.

So even though the flyer gets it wrong as to conviction vs. suppression, the thrust of the flyer's claim is right: the decision by Judge Maag's panel kept a drug dealer out on the streets, and he was later convicted of selling crack cocaine. It's not really relevant whether the panel got the suppression decision right. The main implication of the flyer's description was accurate, despite its technical misstatement -- which is more than I can say for Evan's assertion that "[w]hether Mr. Yarber sold cocaine after his ordeal is anyone's guess, but he probably didn't," which is belied by a basic Westlaw search.

Which is, I think, precisely the point. Even skilled lawyers like Evan can make mistakes. Undoubtedly less refined political operatives can. Moreover, we expect our political advocates to engage in puffery and to present facts in a very harsh light. That process is certainly subject to abuse, and in judicial races in particular a public without legal training can hardly be expected to grasp the nuance of judicial decisions (which is why we shouldn't elect judges in the first place).

Suits like Maag's, however, are not only borderline frivolous -- are we really to believe that this little flyer, that got a couple of facts wrong but was in large part accurate in its characterization, was so significant in a $10 million political campaign as to cause $10 million of damage to his reputation? -- they are designed to intimidate and put a chill on political speech at the core of the First Amendment. That's why the Supreme Court puts such a high bar on libel for political figures and why Maag's suit is doomed to fail. But because the trial bar loves to utilize the in terrorem potential of our legal system that lacks a loser pays rule and other effective checks on plaintiff abuse, I would expect that they will continue to try such tactics, as they have so often in the past.

Posted by James R. Copland at 08:40 PM | TrackBack (1)



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