Be Hard on Crime – Not Its Victims
The most important task of a Circuit Judge is to handle criminal matters, which of course can affect a person’s life and liberty and as well as property. When Judge Bradford Rau was on the bench in Piatt County in Judge Finson’s place, I was on hand when he sentenced a man to prison with weeping family and friends present, and was struck by his comment to the prisoner, almost apologetically, that “I don’t like sending anyone to prison.”
I believe Piatt County’s current prosecutor, State’s Attorney, Dana Rhoades, Judge Finson’s niece, will be on the ballot for the resident circuit judge position in the November 2020 general as a Republican. I am running as an independent, as is, I believe, Suzanne Wells. I do not wish to do any mud-slinging, but I feel that my discussion of justice in Piatt County in the years 2000-2020 would be incomplete if I did not say something about certain personal experiences with Ms. Rhoades in her capacity of county prosecutor (I have already made some comments about Ms. Wells in chapters 7 and 8). I will of course try to make my comments fair and truthful, as I have done throughout this journal.
I have had several clients who were criminal defendants and for whom I negotiated plea agreements with Ms. Rhoades or her office staff. Generally speaking, I found few surprises in her offers, and they were usually fair and consistent with plea offers for similar situations in other counties. One would only hope so.
There were, however, some significant exceptions.
A Major Felony
The first one that comes to mind is the case of a client I had represented previously in a family law case. He contacted me about being arrested for molesting a child. He had already given a comprehensive confession to the police, and there was no doubt about his guilt. The issue at hand was his sentence. It appeared that he had confessed completely in the hope of receiving a relatively lenient sentence. Priests may respect that, but don’t expect prosecutors or judges to. The public defender had already advised him that he was sure to spend a long time in prison. Ms. Rhoades had offered 25 years, an eternity for a young man in his early 30’s who’d never been in jail before. It was left to me to consider whether such a sentence was fair.
My client asked if I might try to negotiate, or make an argument in court if necessary, for something more reasonable. He of course wanted to have some sort of life after prison. I agreed to take his case. Even the most egregious wrongdoer is entitled to a fair hearing.
I looked over the documents and recordings of his confession the State’s Attorney provided, reviewed the statutory sentencing guidelines and factors in mitigation and aggravation, and concluded that 25 years was too harsh. I wrote to Ms. Rhoades with a counter-offer of something less, explaining my reasoning. I don’t recall that I ever received a response from Ms. Rhoades, and I don’t think I did. You’d think in a case like this, involving a major felony, there would be room for a little discussion.
At the sentencing hearing, Ms. Rhoades recommended to the judge a 30 year sentence, not 25. Well, I thought, she’s trying to make a statement.
I argued at the hearing that my client had freely confessed and saved the State the expense of a trial; that he had shown genuine remorse; and that while my client’s crime was indeed heinous, the evidence suggested that its effect on the victim was more speculative than real. I also pointed out that an expert had said my client’s pedophilia could be treated effectively and that he could be restored to society as a useful citizen. Ms. Rhoades argued that my client’s remorse was not genuine, and that his confession included other sex offenses for which he was not being charged and that these were factors in aggravation the court could take into account.
When I further argued that the facts supported a sentence closer to the minimum of 10 years instead of the harsh 30 years, especially since his disorder was treatable, Judge Shonkwiler looked at me as if I were crazy. He sentenced my client to the 30 years Ms. Rhoades had recommended, citing my client’s confessed long history of sexual misconduct.
Maybe my client deserved this sentence, but to me it seemed that the court did not look at it fairly from both sides. I filed a motion to reconsider.
Judge Shonkwiler was off the bench by the time my motion was heard, and Judge Flannell handled it. I had modified my recommendation to a 20-year term, acknowledging that the pattern of criminal behavior and the need to protect the victim justified such sentence. But I insisted that his remorse was genuine, and that a 30-year term was too harsh and would make it very difficult for my client to return to society as a useful citizen, even if he were effectively treated for his sickness toward the end of his term. Murderers, who obviously alter their victims’ lives irrevocably, get sentences of this sort, and the effect of my client’s crime on the victim was at least not that drastic. These arguments fell on deaf ears, apparently, and Judge Flannell affirmed my client’s sentence.
It remains my opinion that 30 years was too harsh in this case. Punishment must fit the crime, protect the victim, deter others from committing similar crimes, and compensate the victim. Arguably, at least, my client’s crime had uncertain long-term effects on any of his victims, at least accordance to any evidence presented at the sentencing hearing. Twenty years would have been quite a severe punishment. The child victim would have been protected, physically as well as psychologically, well into her adulthood by my client’s imprisonment, as well as by the subsequent release conditions and the treatment my client would receive. Because my client was diagnosed with pedophilia, a sickness that could be treated, the deterrent effect of his 30-year sentence, as opposed to a 20-year sentence, on others with the same sickness was questionable.
If I were the judge or prosecutor in this case, I may well have taken the same positions they did and issued the 30-year sentence. Having read The Lovely Bones by Alice Sebold, a story told from the point of view of a murdered 14-year-old rape victim, I wonder if any sentence is too harsh for anyone who would assault a child. I at least would have considered the defendant’s arguments, however, and explained my reasons for rejecting them. I heard no such explanations from either judge in this case. They and Ms. Rhoades did not really answer my arguments for a sentence of less than 30 years. They seemed to have had their minds made up ahead of time. Judge Shonkwiler allowed into evidence the expert’s report on the treatability of my client’s disorder and the genuineness of his remorse so freely, without any objection from Ms. Rhoades, that I had the impression that they knew it would not make any difference anyway. It seems my client – guilty as he was – was entitled to more fairness than he received from the prosecutor and judges in this case.
My discussion of this case and my view of it might lead the reader to think that I will be “soft” on crime if I ever become a judge. I don’t think that follows at all. I simply feel my client’s sentence may have been too harsh in terms of reason and fairness, based on the evidence presented to the court, even though I myself may have imposed the harsh sentence my client received.
My policy as a private attorney is to have clients pay me a retainer fee up front. Often, however, clients cannot do that, and so I try to work with them, and will even work for free in some situations. That often means working on credit and trusting clients to pay by the month, and in full if and when I get a favorable outcome for them. Sometimes I wind up on the short end of that arrangement, but I would not expect the courts and the State’s Attorney’s office to help the deadbeats – those who can pay but just don’t – get away with it.
A certain client I had helped in child custody and domestic violence matters rewarded me for my successful efforts by refusing to pay me out of sums I had collected for him, and threatening to file for bankruptcy protection. Before he did file his bankruptcy case, however, I was able to get him into court in a collection action to answer for not paying me. He actually lied on the witness stand to avoid paying me out of proceeds I had won for him, and I could prove it.
I reviewed the criminal statutes, and found that I could prosecute a criminal complaint such as this one only if I had offered it to the State’s Attorney’s office to prosecute first, and that office declined it. I sent an appropriate request to Ms. Rhoades, detailing all the facts, but heard nothing back. I sent a second message indicating that if she did not prosecute the case, I would. Still I received nothing in response.
So, I filed a perjury claim against my now former client, at my own time and expense, including the filing fee paid out of my own pocket. Only then did Ms. Rhoades intervene to take over the case. I objected, arguing that I had asked her to take the case before I filed. For reasons I still don’t understand, Judge Shonkwiler overruled my objection, and allowed Ms. Rhoades to take the case out of my hands. Thanks a lot, Ms. Rhoades.
But she was not finished. I would later find out that Ms. Rhoades came to a plea agreement with my former client, under which he had to pay only $500.00 (much less than the amount he owed me and avoided paying by lying on the witness stand). Of that amount, I, the victim, saw not one penny in restitution (compensation for damage suffered by the crime victim).
Ms. Rhoades did not consult with me after she took over the case and she never advised me of its outcome. So much for so-called “crime victims’ rights! My former client did file for bankruptcy protection afterward, so I could not collect in the small claims action I’d filed against him and I lost that filing fee too. Bankruptcy laws provide no protection for criminal liability for perjury, however. Ms. Rhoades, let him get off lightly, despite my requests to her for help, and despite my efforts to bring the case to her attention.
It is my understanding of the restitution statute that Ms. Rhoades could have asked for my former client to pay restitution to me as a result of his criminal act of perjury. That statute (730 ILCS 5/5-5-6) says:
In all cases for offenses in violation of the Criminal Code of 1961 or the Criminal Code of 2012, or of Section 11-501 of the Illinois Vehicle Code in which the person received any injury to his or her person or damage to his or her real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided in this Section. In all other cases, except cases in which restitution is required under this Section, the court must at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. …
(Emphasis added.) But Ms. Rhoades did not even try to get restitution for me. She told the court that restitution was not applicable in this case; she did not explain, and I still don’t understand why she said that, in light of this statute. Apparently she feels she can take the idea prosecutorial discretion so far as to write her own rules and ignore the law, to suit her own private sense of values. I shudder when I think about the liberties she might take as a judge.
All of this cost me thousands of dollars in lost fees, out-of-pocket expenses, and wasted time.
A Vehicle Forfeiture
Just last year, a young woman came to me whose automobile had been seized by the police. Her son had borrowed the car and without her knowledge used it to commit a drug crime. I brought the matter to Ms. Rhoades’ attention, explaining that my client had no idea her son would use the car illegally and that she needed the car to get to work. Under state law, lack of knowledge that a person’s vehicle would be used for a crime is a complete defense to a forfeiture action.
I don’t blame the police for seizing the car, but I expected Ms. Rhoades, with a better understanding of what happened, would soon return it to my client. The only response I received, however, was a notice from her office stating that it would proceed with a forfeiture action. They were going to try to take the car from my client permanently.
I again told Ms. Rhoades that my client had no knowledge of the criminal conduct, and gave her an affidavit from my client saying so. Days, then weeks went by, with no response. Meanwhile, my client was without her car.
Finally, I went to see Ms. Rhoades in person. Without any more factual details than what I had provided previously, her office agreed to return the car and not pursue the forfeiture action. This was the correct result, but by the time it came, my client had been without her vehicle for over two months.
It was during this last interview with Ms. Rhoades that I chose to show a certain degree of outrage at her office’s handling of this case. The State’s ability to confiscate citizens’ automobiles is a tremendous power, and I felt that she had wielded that power irresponsibly. Her response was to tell me something like “whining won’t help your client.”
I was at a loss for words. It became clear that in her decision-making, Ms. Rhoades did not merely take into account facts and law, but also the way the facts are packaged, in her personal opinion. I ask the reader, should an impartial judge go beyond facts and law, and look at who presents it and how, in his or her own private opinion? Isn’t that the very definition of unfair prejudice?
When I left Ms. Rhoades’ office that day I slammed the door to show my outrage at her inaction as well as her attitude. I believe I slammed the door just right – not so hard as to show disrespect to county property, but hard enough to show my outrage. Later, she emailed me to say that my slamming the door on the way out was “frightening.” I was tempted to write back and say that what was frightening was her callous disregard of my client’s need for her car, and her misuse of power in seizing her hard-earned property. But I restrained myself, because by then my client had reported that she had her car back.
Determining Probable Cause
Just this year, I witnessed a preliminary hearing in a criminal case in which Ms. Rhoades had charged a defendant with harassing a neighbor. Under the rules of criminal procedure, a defendant has the right to a preliminary hearing in which the prosecuting attorney must show that there was probable cause to belief the defendant had committed a crime. The standard of proof for showing probable cause is relatively low; the State does not even have to prove it is more likely than not that a crime was committed, only that there existed sufficient cause to believe one was committed.
The defendant’s neighbor testified that she’d had some disputes with the defendant over a dog, as well as over a tree near the property line, both of which had been resolved. Then, however, the neighbor further testified she started receiving volumes of magazines in the mail that she had never ordered. It was apparent to the neighbor that someone had filled out dozens of magazine subscription cards with her name and address on them and mailed them in. There was not a shred of evidence presented that the defendant was the one who had sent in the subscription cards. Circuit Judge Jerome Richey (present in Piatt County because of Judge Finson’s conflict situation) ruled, correctly in my opinion, that the State lacked probable cause to prosecute.
This made me wonder how Ms. Rhoades would have decided such a case if she had been the judge. If she as judge would have found there was no probable cause to prosecute this defendant, then why did she prosecute as State’s Attorney? I felt sorry for the defendant, who the State’s Attorney had dragged into court on such thin evidence.
These are some my personal experiences with Ms. Rhoades – I have made no effort to dig up any dirt on her. She may have done a passable job as State’s Attorney these last few years, but only if you consider her conduct in these cases passable – which I don’t. When I started to practice law in Piatt County in late 1999, Roger Simpson was the State’s Attorney, and after that, Leonard Rumery served in that office; I don’t remember any negative experiences with either of them. It’s not surprising to me that two independent candidates are challenging Ms. Rhodes in the upcoming November election.
I hope my retelling of these “war stories” has educated you somewhat on some of the inner workings of the Piatt County Justice system over the last 20 years. I have more stories I could tell, but I believe these are a fair sampling of my negative experiences (there have been more positive experiences than negative ones overall) and illustrate what I believe are certain shortcomings of the judicial system and ways it can easily be improved.
Admittedly, my purpose is also to show Piatt County voters my personal impressions of that system, whose effectiveness very much depends on the performance of its judges and the State’s Attorney, with a view to my own candidacy for Circuit Judge as an independent in the November 2020 election.
My impression is that the county’s justice system works reasonably well, thanks to the general competency, fairness, and knowledge of the law shown by most of its judges and county attorneys. At the same time, I have encountered some serious flaws with the system – or more accurately, some of those who have served within that system – that I have documented in this journal.
I think I have a firm grasp of a judge’s duties and responsibilities to the people, and that I could do at least as good a job as those who have served that office well these 20 years, and a better job than many of them have by avoiding what I see as the mistakes they have made in that time, as chronicled in this journal.
The back cover of this book contains some personal information about me and my views, which I hope you will consider when you cast their votes for Piatt County’s resident Circuit Judge this November 2020.