By Louis J. Manetti
Attorney, Codilis and Associates, PC

The facts section of a brief can—and should—lend itself to the overall advocacy of the brief. The advocate who writes it as a necessary-but-unimportant regurgitation of events misses a valuable opportunity to persuade. Appellate experts give reoccurring advice to maximize the statement of facts.

Drafting an effective statement of facts is crucial to an appellate lawyer’s advocacy. Chief Justice William Rehnquist said, “[t]he brief writer must immerse himself in this chaos of detail and bring order to it by organizing[.]” Ross Guberman, Point Made 93 (2d ed. 2014). The facts section is the lawyer’s opportunity to organize in a compelling way: to cull the determinative facts from the chaos of the cold—and often long—record. Legal writing guru Bryan Garner and Supreme Court Justice Antonin Scalia stress the importance of facts: “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case.” Antonin Scalia & Bryan A. Garner, Making Your Case 9 (2008). 

In his seminal work, Effective Appellate Advocacy, Frederick Wiener warns, “[t]he greatest mistake any lawyer can make, after he has written a fine brief on the law, is to toss in a dry statement of facts and send the thing off to the printer.” Frederick Bernays Wiener, Effective Appellate Advocacy 34 (revised ed. 2004). The strength of the facts section lies in its “selection and juxtaposition, without of course ever appearing to involve the irrelevant.” Id. at 36.

Like every other portion of the brief, the facts section should strive to persuade. Wiener instructs that the facts section, “should always be written in such a way as to advance the cause of the party on whose behalf it is prepared.” Id. Justice Scalia and Garner agree that the facts section must be designed to persuade: “[y]ou advance that objective by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each.” Scalia & Garner, supra at 94. And the effective brief obeys the maxim of “show, don’t tell.” That is, the lawyer should resist the urge to characterize the facts and tell the court what they mean. “Devote your energies instead to combing through the record in search of facts that are so clear and so strong that they make your case on their own.” Guberman, supra at 67. 

As Garner puts it: “Think of your job as this: you’re trying to induce the judge to seethe in indignation while never revealing your own indignation.” Bryan A. Garner, The Winning Brief 600 (3d ed. 2014). It is more effective for the lawyer’s factual presentation to elicit a reaction than for the lawyer to tell the judges how they should be reacting. But there’s a crucial distinction—although the facts section should aim to persuade, it must not editorialize. “[A] court reading a Statement of Facts wants to feel that it is getting the facts, and not the advocate’s opinions, comments, or contentions.” Wiener, supra at 49.

Experts also emphasize that the facts must be unfailingly accurate. If the facts are inaccurate, the court “will lose faith in you[.]” Wiener, supra at 38. About inaccuracy, Justice Scalia and Garner stress, “[n]othing is easier for the other side to point out, and nothing can so significantly damage your credibility.” Scalia & Garner, supra at 93. What’s worse, a misstatement can cause the reviewing judges to question other assertions in the brief: “[f]alsus in uno falus in omnibus is a standard applied not only to witnesses by lawyers and juries, it is a standard applied to lawyers by appellate judges.” Wiener, supra at 95. 

And although Wiener was writing over sixty years ago it would be a mistake to believe that modern appellate tribunals would be more forgiving of factual errors. Just three years ago, the First District Appellate Court noted a basic and inexcusable inaccuracy: the plaintiff’s brief reported that a defendant’s answer admitted his loan was in default, when in fact the answer contained no such admission. PNC Bank, N.A. v. Mathin, 2014 IL App (1st) 133061-U, ¶ 12 n.1. Justice Hyman—citing to Wiener’s book—wrote a concurrence lamenting that the misstatement had cast a shadow over the rest of the brief. Id. ¶¶ 31-34 (Hyman, J., concurring).

Part of being accurate is tackling bad facts head-on. Bad facts, “will come out anyway,” warn Justice Scalia and Garner, and “if you omit them you simply give opposing counsel an opportunity to show the court that you’re untrustworthy.” Scalia & Garner, supra at 95. As Wiener puts it, if the lawyer omits significant facts, “the opposition will rub your nose in them.” Wiener, supra at 39. Ross Guberman, the president of Legal Writing Pro, suggests blunting the damage of bad facts by beginning the sentence with “although” “to subordinate the bad fact to its more favorable context[.]” Guberman, supra at 82.

Also, seemingly minor stylistic choices can make the facts section more forceful and clear. For instance, subheadings can break an otherwise unwieldy section into digestible parts, “so that the reader can more easily grasp the relevance of what he reads.” Wiener, supra at 36. Guberman points out that good factual subheadings put verbs in the present tense, which is “another way to give your headings a conversational feel.” Guberman, supra at 74. Additionally, lawyers should refrain from listing every single date of an event or document in the record. “Using an exact date signals to the reader that it is important—that the reader should remember it for future reference.” Id.The Legal Writer: 40 Rules for the Art of Legal Writing 61-72 (2d ed. 2003)). Justice Scalia and Garner expound on this: “if you spell out every date, you confuse the reader and bog down the story.” Scalia & Garner, supra at 96. Instead, achieve narrative continuity by using relative phrases like “the next day,” and “three months later.” 

Finally, use the litigants’ names—or at least a label other than their assigned role in the case. Advocates should avoid using the labels “appellant” and “appellee” because it “is bound to confuse; mistaken references are inevitable; and the designations simply reflect the happenstance of the outcome below and do not characterize the parties’ positions in the context of the controversy on appeal.” Wiener, supra at 95. Garner elaborates: “use real names for both parties and let your arguments do the talking. And if your goal is to cast a negative light on your opponent, you’ll have more success by using names anyway[.]” Garner, supra at 244.

The statement of facts can be a powerful narrative that prompts the reviewing judges to decide in the litigant’s favor. Through selection, juxtaposition, and the usages frequently urged by top authorities, the advocate should aim to write the facts “so that the court will want to decide the case in your favor after reading just that portion of your brief.” Wiener, supra at 37. A lawyer who writes a dry statement of facts as an afterthought does so at his or her peril.

According to a press release from the Illinois Supreme Court today, "The Illinois Supreme Court Clerk's Office will join the eFileIL e-filing community on Thursday, June 15. Filers for the state's highest court will need to access the eFileIL filing platform at efile.illinoiscourts.gov and become a registered user through one of the authorized service providers. Supreme Court filers will no longer be able to use the i2File platform as of 11:59 p.m. on Wednesday, June 14."

 

The full press release can be viewed here.

The Appellate Lawyers Association now offers CLE programs online for credit. As part of the ALA’s continuing efforts to bring programming to our members, the ALA now has two recorded programs available online: one featuring Adam Liptak of the New York Times and the other featuring Dean Erwin Chemerinsky, who this July will become the Dean of the University of California Berkeley School of Law.

In Liptak’s program, he offered his reflections on the Supreme Court’s last decade, discussed the challenges and rewards he faces as a national legal reporter, and shared stories from the front lines covering our nation’s highest court. Liptak’s program was recorded live at the Union League Club of Chicago on January 21, 2016.

In Dean Chemerinsky’s program, he discussed five topics relating to the U.S. Supreme Court: the possible outcomes of a 4-4 split on the Court; the pivotal role of Justice Anthony Kennedy; the centrality of issues relating to race in many of the Court’s cases; the confirmation of Justice Neil Gorsuch; and the long-term picture for the Court. Dean Chemerinsky’s program took place at the Standard Club in Chicago on April 21, 2017.

Each program is available to members for $25 and can be watched on any device with Internet access, including a computer, smart phone, tablet, or TV. Viewers will receive one hour of CLE credit for each program.

Instructions on how to purchase and view the programs are available here.

By Nate Nieman
Nieman Law Group

The juvenile appellant in U.S. v. Sealed Defendant Juvenile Male (4), No. 16-3311, (7th Cir. 2017), along with two other juveniles and an adult, allegedly robbed a CVS store in Indianapolis at gunpoint. They were charged in federal court with Hobbs Act Robbery and possession of a firearm during a robbery. The Government sought to transfer the juveniles’ cases for adult prosecution under 18 U.S.C. § 5032. In order to transfer a case under 18 U.S.C. § 5032, the transfer must be “in the interest of justice,” which the court determines by making certain findings related to the offense and the juvenile offender.

The Government moved to have the juveniles examined by government psychologists to provide evidence showing that it would be in the interest of justice to try the juveniles as adults. The juveniles objected, arguing that the examinations, which would be conducted without their lawyers present, violated their Fifth and Sixth Amendment rights. The magistrate disagreed and ordered the juveniles to submit to the examination without their lawyers present. The district court agreed with the magistrate, and the juvenile appellant in this case filed an interlocutory appeal, arguing that the examination would violate his constitutional rights.

The Seventh Circuit never reached the merits of his appeal because the court dismissed the appeal after determining that it was without jurisdiction to hear it. The court has jurisdiction only over final decisions from the district court. 28 U.S.C. § 1291. A final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902 (2015) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). However, the court also noted that “There does exist a ‘small class’ of nonfinal orders that ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). These are called “collateral orders,” and they are “immediately appealable if three elements are satisfied: the nonfinal order must ‘(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.’ ” Doe v. Vill. Of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)).

In determining whether the district court’s order allowing the defendants to be examined by the psychologists without their lawyers present was an immediately appealable collateral order, the Seventh Circuit focused on the third factor—whether the district court’s order allowing this evaluation was “effectively unreviewable” on an appeal from the final judgment of the underlying action. An order is “effectively unreviewable” only when it involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850, 860 (1978). The court determined in this case that the district court’s order allowing the examination was not “effectively unreviewable” under this standard, explaining that “Had M.G. waited to appeal until after the district court had issued an order granting the government’s motion to transfer under 18 U.S.C. § 5032, then we would be able to consider the merits of his argument now,” citing United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996) (holding that a transfer order issued under 18 U.S.C. § 5032 is an appealable collateral order).

In other words, the defendant would have had to submit to the government psychologist’s examination and then the court would have to enter a transfer order under 18 U.S.C. § 5032 before the defendant could file an interlocutory appeal challenging the transfer order itself. The court cited cases from three other circuits where defendants had done just that. See Juvenile Male, 554 F.3d 456 (4th Cir.); Mitchell H., 182 F.3d 1034 (9th Cir.); A.R., 38 F.3d 699 (3d Cir.). Because the defendant in this case did not wait until the transfer order was entered before filing his interlocutory appeal, the order allowing the defendant to be examined by the government psychologist was not considered appealable and the Seventh Circuit dismissed his appeal without considering the merits.

By Stephen Soltanzadeh
Associate, Ancel Glink

The First District Appellate Court recently held that a motion for a new trial did not toll the 30-day period for filing a notice of appeal where the record was inconclusive as to the motion’s filing date, even where the prosecutor verbally agreed to “waive” the 30-day requirement for posttrial motions and consented to the defendant filing the motion later than 30 days after judgment.

In People v. Hall, 2017 IL App (1st) 150918, a jury determined that the defendant was a sexually violent person under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. (2014), and the trial court entered an order committing him to the care of the Department of Human Services. The trial court entered judgment on May 14, 2014, after which the parties discussed scheduling posttrial motions with the court. In that discussion, the Assistant State’s Attorney stated that she would “waive the 30 days,” meaning that she would “not object if it’s after the 30 days if it’s all right with the Court.” Defense counsel followed up by asking the court for “June 20,” and the court stated that it would “set that down for any post-trial motions.” The trial court then issued a written order stating that judgment was entered and that the defendant would be transported to court on June 20, 2014, “for further status on this matter.”

At the June 20, 2014 hearing, defense counsel requested leave to file a motion for new trial. In response, the trial court set a date for arguments on posttrial motions. Transcripts from subsequent hearings indicated that a new trial motion was ultimately filed, but it was not clear from the record when the motion was filed, and no file-stamped copy of the motion was included in the record. The court ultimately denied the motion on February 6, 2015, and defense counsel filed a notice of appeal on March 6, 2015.

The People moved to dismiss the appeal, arguing that the appellate court did not have jurisdiction because the new trial motion was not filed within 30 days of the entry of judgment. The defendant responded that the court extended the deadline after the People agreed to the extension, and that the People’s position that a defendant cannot rely on the word of a prosecutor ran counter to the Illinois Rules of Professional Responsibility, which give prosecutors special responsibilities.

The appellate court dismissed the appeal for lack of jurisdiction. It held that the record did not indicate when the posttrial motion was filed, and thus the defendant failed to demonstrate that it was timely, leaving the court without jurisdiction to hear the appeal.

In so holding, the court initially explained that it does not have jurisdiction over an appeal unless the notice of appeal was filed within 30 days of the entry of judgment, or, if a timely posttrial motion was filed, within 30 days of disposition of the motion. It further explained that a posttrial motion must be filed within 30 days of the entry of judgment unless that time is extended by the court. Hall, 2017 IL App (1st) 150918, ¶ 13 (citing 735 ILCS 5/2-1202(c), Ill. Sup. Ct. R. 303(a)(1)).

Turning to the case before it, the appellate court acknowledged that the record was “uncertain” as to whether the trial court had granted the defendant an extension of time to June 20, 2014 to file a motion for a new trial. Hall, 2017 IL App (1st) 150918, ¶ 14. But the appellate court held that even if the trial court had granted an extension, the appellate court lacked jurisdiction because the record did not indicate when the motion for a new trial was filed. Explaining that, as appellant, the defendant bore the burden of preparing a complete record, the appellate court construed the lack of a file-stamped copy of the motion against the defendant and held that he failed to establish that the notice of appeal was timely, leaving the court without jurisdiction over the appeal.

“For the sake of completeness,” the appellate court also noted that the revestment doctrine did not apply because the defendant could not meet all three factors of the revestment doctrine test: that both parties “‘(1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.’” Hall, 2017 IL App (1st) 150918, ¶ 17 (quoting People v. Bailey, 2014 IL 115459, ¶ 25). The court concluded that although the defendant could meet the first two requirements, he could not meet the third because the People actively opposed the motion for new trial and defended the underlying judgment. Accordingly, the appellate court held that the conduct of the Assistant State’s Attorney did not revest the trial court with jurisdiction to hear the defendant’s posttrial motion.

On May 8, President Donald Trump nominated Notre Dame University Law School Professor Amy Coney Barrett to the United States Court of Appeals for the Seventh Cirucit. 

According to the White House's press release, Barrett currently serves as the Diane and M.O. Miller II Research Professor of Law at the Notre Dame University Law School where she teaches federal courts, constitutional law and statutory interpretation. Prior to becoming a faculty member at Notre Dame, Barrett clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Laurence H. Silberman of the United States Court of Appeals for the D.C. Circuit. She also worked as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., and served as a visiting associate professor at the George Washington University Law School and the University of Virginia Law School.

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The Illinois Supreme Court recently shed new light on appellate jurisdiction under Rule 304(a). The rule provides that, where “multiple claims” for relief are involved in a single action, an appeal may be taken from a final judgment as to a single “claim” upon the trial court’s written finding that there is no just reason for delaying an appeal. The court has previously explained that Rule 304(a) applies only to judgments that dispose of “separate, unrelated claims,” and that orders disposing only of “separate issues relating to the same claim” are not immediately appealable under the rule. (Emphasis in original.) In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983).

In Carle Foundation v. Cunningham Township, 2017 IL 120427, the trial court issued a Rule 304(a) finding after granting the plaintiff’s request for a declaratory judgment as to which section of the Property Tax Code governed certain claims in the plaintiff’s complaint. The Supreme Court held, however, that a declaration as to what law governs a complaint “resolves nothing other than the standard by which the underlying claim will be adjudicated.” Carle Foundation, 2017 IL 120427, ¶ 18. Thus, the trial court had merely resolved an “issue” that was ancillary to the plaintiff’s underlying “claims,” and its Rule 304(a) finding was improper. Id. 

The parties in Carle disputed whether a charitable-use tax exemption applied to four parcels of land that were used in connection with the operation of a hospital for the tax years 2004 through 2011. The plaintiff argued that the parcels qualified for an exemption that had recently been created for hospitals under section 15-86 of the Property Tax Code. See 35 ILCS 200 15-86 (eff. June 14, 2012). The defendants maintained that section 15-86 did not apply retroactively, and that the case was controlled by the older charitable purposes exemption, under section 15-65 of the Property Tax Code. See 35 ILCS 200 15/65 (eff. Jan 1, 1994).

The plaintiff’s fourth amended complaint included 35 counts. Count II sought a declaration that section 15-86 was applicable to the parcels for the tax years in question. The remaining counts sought declarations that an exemption the plaintiff had received prior to 2004 was never lawfully terminated, and that the parcels actually qualified for an exemption under section 15-65. Additionally, the plaintiff alleged the breach of a 2002 settlement agreement that it had entered with various local taxing authorities.

Shortly after filing its fourth amended complaint, the plaintiff filed a motion for summary judgment on count II and requested a Rule 304(a) finding. In granting the plaintiff’s motion, the trial court acknowledged that its ruling would not resolve the merits of all of the plaintiff’s claims. The court nonetheless granted a Rule 304(a) finding, reasoning that the applicable substantive law needed to be ascertained as a threshold matter before the case could proceed.

The appellate court concluded that it had appellate jurisdiction under Rule 304(a), but it reversed the trial court’s ruling after concluding that section 15-86 was unconstitutional. The Supreme Court then vacated the appellate court’s decision on the basis of its holding that the trial court’s Rule 304(a) finding was improper, and that the appellate court therefore lacked jurisdiction to review the order granting the plaintiff’s motion for summary judgment.

The Supreme Court emphasized, “ ‘it is difficult to conceive of a situation in which the issues are more interrelated’ than the pleading of a claim and the determination of what law governs that claim.” Carle Foundation, 2017 IL 120427, ¶ 23 (quoting Leopando, 96 Ill. 2d at 119). Hence, by requesting a declaratory judgment that section 15-86 was applicable to the parcels for the tax years in question, the plaintiff sought to dispose only of an “issue” that was related to the plaintiff’s “exemption claims.” Carle Foundation, 2017 IL 120427, ¶ 23.

The Supreme Court went on to note that the plaintiff’s request for declaratory judgment was improper in the first instance. The court explained that a declaratory judgment action must relate to an “actual controversy,” which refers to a “concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” Carle Foundation, 2017 IL 120427, ¶ 28. (quoting Underground Contractors Association, Ill. 2d 371, 375 (1977)). However, count II of the plaintiff’s fourth amended complaint was brought only to facilitate interlocutory appellate review of the trial court’s determination; it was not properly aimed at securing a declaration of unresolved rights as to an open legal controversy. Carle Foundation, 2017 IL 120427, ¶ 31.

Finally, the Supreme Court declined the parties’ shared request to address the merits of the case under the court’s supervisory authority. First, the court noted that it was not inclined to accommodate “piecemeal litigation.” Second, the court noted the issue surrounding the constitutionality of section 15-86, which had been the focus of the appellate court’s decision. However, the court’s long-standing rule is that cases should be decided on non-constitutional grounds whenever possible. Because plaintiff’s fourth amended complaint included claims that had nothing to do with the constitutionality of section 15-86, the court concluded that a ruling on the merits would be “decidedly premature.” Id. ¶ 34.

On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.

Attendees will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term, which begins Tuesday, May 9, 2017, with oral arguments scheduled for May 9, 10, 11, 16 and 17, 2017. A total of 15 cases will be heard – 9 criminal and 6 civil.

The following civil cases are scheduled for argument this Term:

People ex rel. Lisa Madigan v. Wildermuth—No.120763—May 10

Rozsavolgyi v. The City of Aurora—No. 121048—May 11

Manago v. The County of Cook—No. 121078—May 11

Cochran v. Securitas Security Services USA, Inc.—No. 121200—May 16

Aspen American Insurance Co. v. Interstate Warehousing, Inc.—No. 121281— May 17

Illinois Landowners Alliance v. Illinois Commerce Commission—Nos. 121302, 121304, 121305, 121308 (cons.)—May 17

The following criminal cases are scheduled for argument this Term:

In re Linda B.—No. 119392—May 9

People v. Willis Reese—No. 120011—May 9

In re Destiny P.—No. 120796—May 9

People v. Matthew Gray—No. 120958—May 9

People v. Richard Holman—No. 120655—May 10

People v. Dennis Bailey—No. 121450—May 10

In re Jarquan B.—No. 121483—May 10

People v. Fernando Casas, Jr.—No. 120797—May 16

People v. Byron Boykins—No. 121365—May 16

Below is a summary for one civil case, Cochran v. Securitas Security Services USA, Inc., and one criminal case, People v. Richard Holman. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

Cochran v. Securitas Security Services USA, Inc.

This case raises the question of whether Illinois should recognize a cause of action for negligent interference with the possession of a corpse. In a published opinion, the Fourth District Appellate Court recognized such a cause of action, departing from prior decisions of the First, Second, and Third Appellate Districts which held that willful and wanton conduct by the defendant was a prerequisite to such a claim.

Plaintiff, the mother of the decedent, filed suit against Defendant, claiming that they negligently mishandled her son’s remains such that they were switched with those of another decedent, resulting in an unwanted cremation. Plaintiff alleged that Defendant violated its duty not to interfere with her right to possession of her son’s remains by failing to follow certain procedures with respect to the handling and transferring of decedents’ remains. Plaintiff did not allege that the defendant acted willfully or wantonly. Defendant moved to dismiss, arguing that plaintiff failed to state a cause of action. The trial court agreed, dismissing Plaintiff’s complaint with prejudice, and finding that Plaintiff could not allege any facts which would give rise to a duty owed on the part of the Defendant. Plaintiff appealed.

Reversing, the Fourth District Appellate Court disagreed, holding that requiring a plaintiff to plead willful and wanton conduct is no longer consistent with the current state of the law. In so holding, the Court departed from prior rulings of the First, Second, and Third District Appellate Court, which uniformly have held that a cause of action for negligent interference with possession of a corpse is not recognized under law. The Fourth District Appellate Court held that the rationale for requiring such a heightened pleading standard had been eroded, as evidenced by the decisions of several other states providing for a cause of action based upon the negligent mishandling of a corpse. It therefore held that “the more modem view supports the position taken by plaintiff in the instant case and recognizes an ordinary negligence cause of action arising out of the next of kin’s right to possession of a decedent’s remains,” and that the cases relied upon by the trial court “do not take into account the evolution of the law in this area and fail to persuade us to accept defendant's argument that circumstances of aggravation are necessary.”

People v. Richard Holman

In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held that mandatory-life-without-parole sentences for juveniles (under the age of 18) violated the Eighth Amendment.  Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held that Miller had adopted a substantive rule that applied retroactively.  Drawing a line between children whose crimes reflected transient immaturity and those reflecting permanent incorrigibility, the Court explained that an individualized hearing about the juvenile's youth and attendant considerations was required to separate out those who could be sentenced to life-without-parole and those who could not.  In Illinois, a criminal defendant can file a successive postconviction (PC) petition only with leave of court, 725 ILCS 5/122-1(f), which the court may grant if defendant demonstrates cause for failing to bring the claim(s) in the initial PC petition and prejudice resulting from that failure.

In July 1979, weeks shy of his 18th birthday, Richard Holman and a codefendant burglarized a farmhouse in Southern Illinois and murdered its 83-year-old resident.  Holman confessed to committing seven murders with his codefendant (of which he was later convicted of three, including this case).  For the instant case, Holman and his codefendant were tried and convicted for first degree murder in 1981; because of his age he was ineligible for the death penalty and faced a 20-to-40-year sentencing range (for which he could earn day for day credit) and the judge, in his discretion, could impose a natural life sentence if Holman was convicted of multiple murders (as he was here).  The trial judge received a detailed pre-sentencing investigation (PSI) report regarding Holman's age, background, delinquency record, and family circumstances; statutory-required mitigating factors at the time did not mention youth.  The trial judge acknowledged considering the PSI, found no mitigating factors were present, and commented that this defendant could not be rehabilitated before imposing a natural life sentence. Neither Holman's direct appeal nor his initial PC petition challenged his sentence on Eighth Amendment grounds.

In October 2010 (before Miller), Holman sought leave to file a successive PC petition, challenging the statute under which he was sentenced as unconstitutional under the Sixth and Fourteenth Amendments; on appeal from denial of leave to file (before Miller), Holman argued that the sentencing statute was void ab initio under the Eighth Amendment; the post-Miller PLA argued that the sentencing statute violated the Eighth Amendment.  In January 2015, the Illinois Supreme Court denied leave to appeal but remanded to the appellate court to reconsider in light of People v. Davis, 2014 IL 105595 (rejecting Eighth Amendment facial challenge to sentencing statute mandating natural life sentence, but holding Miller was retroactively applicable and satisfied cause-and-prejudice for juvenile defendant sentenced to mandatory natural life raising as-applied Eighth Amendment challenge).

On remand, the appellate court excused Holman's forfeiture and upheld Holman's discretionary natural life sentence imposed in April 1981.  The court held that Miller provided an illustrative list of factors related to a juvenile defendant's youth without requiring courts to consider any set list of factors.  The court held that the sentencing hearing comported with Miller because Holman's age and other mitigating factors were known by the court and because Miller/Montgomery did not prohibit a natural life sentence for all juvenile offenders.

Before the Illinois Supreme Court, Holman argues that he is entitled to a new sentencing hearing because sentencing courts must consider the Miller factors, and the trial court did not do so in his case.  Alternatively, Holman argues he is entitled to a new sentencing hearing because the sentencing court did not even consider youth and its attendant circumstances as a mitigating factor.  The State argues that the as-applied Eighth Amendment claim is forfeited because it was not presented in any level of review prior to this court's supervisory order.  Forfeiture aside, the State asserts that the Rehabilitation Clause of article 1, section 11 of the Illinois Constitution and decades of Illinois precedent on juvenile justice reflect that the Illinois sentencing scheme pre-Miller comported with Miller's requirements. Additionally, the sentencing judge's comment that Holman cannot be rehabilitated (and the record of his extensive delinquency record and multiple murders) is precisely the finding of permanent incorrigibility justifying a natural life sentence under Miller/Montgomery.  Finally, the State argues that rather than grant a new sentencing hearing as Holman requests, the Court should remand for additional PC proceedings solely regarding whether Holman qualifies as the rare juvenile offender who is permanently incorrigible because only if he is not is there an Eighth Amendment violation warranting a new, full sentencing hearing.  An amicus brief in support of Holman filed by the Bluhm Legal Clinic at Northwestern School of Law asserted, among other things, that the Court should flatly ban natural life sentence for juvenile offenders.

On May 10, the ALA and the Sangamon County Bar Association will co-sponsor a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Fourth District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place at Maldaner's Restaurant, 222 South Sixth Street in Springfield, beginning at noon and ending at 1:30 p.m.
 
On May 19, the ALA will host the same event featuring the Justices of the Illinois Appellate Court’s Fifth District. The event will take place at The Gateway Center, 1 Gateway Drive in Collinsville, beginning at noon and ending at 2 p.m.
 
Attendees to the luncheon will receive one hour of MCLE credit.
 
Following each luncheon, Tyler Technologies will provide an e-filing presentation, covering such topics as: (1) filing fees; (2) the Illinois Supreme Court mandate requiring e-filing; (3) implementation of the mandate around the State; (4) the mechanics of e-filing; and (5) third-party vendors who can be retained to provide e-filing services to the bar. The event will run from 1:45 p.m. until 3:15 p.m. in Springfield and from 2:15 p.m. until 3:45 p.m. in Collinsville. 
 
This presentation is free to attendees, including those who wish to attend only the e-filing presentation.
 
Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.

On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.
 
Attendees will receive one hour of MCLE credit.
 
Finally, on May 25, the ALA will host a brown bag lunch featuring the e-filing presentation from Tyler Technologies. The event will take place at Mayer Brown LLP, 71 South Wacker Drive, 32nd Floor in Chicago, beginning at noon and ending at 1:30 p.m.
 
Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.
 
For more information about any of the events and to register, please click here.