The appearance of impropriety causes polarization of the parties

Tuesday, November 8, 2022, was “mid-term election day.” On November 17, the Republicans finally won seat number 218 to give them control of the U.S. House of Representatives, when Mike Garcia was finally declared the winner of a seat in Northern Los Angeles County.

As I write this piece, 10 days after the election, five House seats are still undecided. 25% of the ballots unbelievably still remain uncounted in California District 22!

The Rules of Ethics, governing the conduct of judges, mandate that it is not enough that a judge acts with “propriety.” The judge’s action must also be free from the “appearance of impropriety.” Judges have been sanctioned, even though they committed no wrong, in cases where their actions have given rise to an “appearance of impropriety.”

If our elections are to have the confidence of the American people, that same rule must be equally applicable to our national elections — they must be free of the appearance of impropriety.

When an election takes place on November 8, and when the “counting” of ballots continues on into November 18, it gives the appearance that whoever is counting ballots is committed to continue counting until he “finds” enough ballots for his candidate to win.

When an Arizona Secretary of State, charged with the duty of conducting the election and counting the ballots, continues to count ballots a week after the election, there is an “appearance,” even if not a “reality,” that she is continuing to count until she finds enough ballots to guarantee her own election as governor.

When an operative of either political party goes to a nursing home, provides the residents with blank ballots, assists the residents in filling them out, “harvests” them, and then delivers them to a “drop off box,” that also creates an appearance of impropriety.


In 2004, the Commission on Federal Election Reform was created by former President Jimmy Carter, a Democrat, and former Secretary of State James Baker III, a Republican, in the aftermath of the 2000 presidential election. The Commission’s Report began, 

"Elections are the heart of democracy. They are the instruments for the people to choose leaders and hold them accountable. At the same time, elections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk.

"Americans are losing confidence in the fairness of elections, and while we do not face a crisis today, we need to address the problems of our electoral system."

Sadly, since that date, we have had three major crises.

1. After the 2016 election, when the Democrats and Mueller investigated President Trump, culminating in Trump’s first impeachment for “Russian Collusion.”

2. Stacey Abrams claimed she was the winner of the 2018 Georgia Gubernatorial election, and that the election was stolen from her.

3. President Trump still claims that he won the 2020 election, and that Democrats stole the it from him.

The result of the “major crises” is that a great many people do not trust the results of our elections. Even worse, the country daily grows increasingly divided.

All three of these “major crises” are premised on the belief that our elections are/were not secure.

You’ve heard the claims: “There was Russian tampering!” “The ballots were filled in by the ballot harvesters!” “The voting machines are programmed to undercount Republican/Democrat (take your pick) ballots!”


The CFER proposed the following reforms, which still make sense:

• A universal system of voter registration in which the states, and not local governmental units, would be responsible for accurate voter lists. Voters would register only once during their lifetimes. The lists would be inter-connected to allow for easy removal of duplicate registrations and for easy updating.

• To ensure that a person arriving at a polling site is the same one who is named on the list, states would provide free photo IDs. To make acquisition of the free ID easy, States would increase the number of registration sites.

• Provisional ballots would be provided for voters without a photo ID during a transitional period, which would be counted upon signature verification.

• Voting machines and the software would be pre-tested by independent testing-providers.

• An auditable paper backup system would be used to give confidence to voters using electronic voting machines that their votes will be counted accurately.

• State election management bodies would be reconstituted on a nonpartisan basis to seek to insure independence and effectiveness.

Florida and Georgia required photo IDs in the 2022 election. Have you heard a single claim the requirement disenfranchised voters? Minorities? Caused long lines? What important thing can you do in your life without a photo ID?

The CFER made no recommendation concerning “ballot harvesting.” It didn’t exist in those days. But the solution is simple. Permit ballot harvesting only where a representative of each major party is present to ensure that there is no undue influence by the other party, and that the vote harvested is really the voter’s, not the harvester’s, and video the “harvesting party.”

The appearance that elections are entirely fair eliminates one major justification for the polarization of the two political parties.

First Published in the Moline Dispatch and Rock Island Argus on November 27, 2022. 

Copyright 2022, John Donald O'Shea

Legislatures cannot tell judges to ignore the most material facts in setting bail

Beginning in 2023, Illinois will have a new law governing pretrial release on bond. Prosecutors are decrying the new law, labeling it “cashless bail.”

While the new law is hardly a model of clarity, I am not sure that it mandates “cashless bail.”

As a starting point, let’s look at the bail law that was in effect during my judgeship.

In the 26 years when I was on the bench, bail in Illinois criminal cases was governed by the Illinois Code of Criminal Procedure, Chapter 38, Sections 110-1 thru 110-17.

While other forms of bail were provided for, the two forms that were almost exclusively used were 10% bonds and Recognizance Bonds. The two most important conditions of those two bonds were (1) that the defendant should appear for trial and for all court hearings and (2) that the defendant should not violate any criminal laws while released on bond.

The difference between the 10% bond and the recognizance bond was simple. If the judge set a cash bail for the pre-trial release of the accused, if the bond was set at $5,000, the defendant had to post $500 to be released. If the judge allowed the defendant to be released on a $5,000 Recognizance Bond, the defendant merely signed his name and was not required to post any money. Regardless of the form of the bond, if the defendant violated his bond, the bond could be forfeited and a judgment entered against the defendant for the full amount of the bond (in this example, $5,000).

In those days, the legislature provided in 110 §2:

“When from all the circumstances the court is of the opinion that the accused will appear as required …, the accused may be release on his own recognizance. 

 

“This Section shall be liberally construed to effectuate the purpose of relying on criminal sanctions instead of financial loss to assure the appearance of the accused.”

Between 1990 and 2000 when I was Presiding Judge in Criminal, release on recognizance, as shown above, was the expressed legislative preference. For a Class 4 felony cannabis offense, if the defendant had no prior record, the state would almost always agree to the defendant’s bond being a recognizance.

On the other hand, if the defendant was already on bond, probation or parole when the new felony offence was committed, or if the defendant’s record suggested that he was unlikely to appear for trial, or likely to commit additional offenses if released on bond, the 10% bond was used. That was also true in more serious felonies such as burglary, robbery and larger thefts.

My rule of thumb as a judge was to release the accused on recognizance if asked to do so, unless his record suggested that he (a) was likely to jump bond, or (2) his pre-trial release would create a danger to law-abiding citizens and/or their property.


The new Senate bill, begins by stating:

The General Assembly recognizes that the promotion of public safety and protection of crime victim rights are two of the main focuses of our State's criminal justice system; it further acknowledges that protecting the rights of the accused is central to the integrity of our State's criminal justice system.

“… bail but shall instead focus on a person's threat to public safety or risk of failure to appear before a court of appropriate jurisdiction.

The new section 110-5 provides:

“In determining the amount of monetary bail or conditions of release, if any, which will reasonably assure the appearance of a defendant as required or the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of bail, the court shall, on the basis of available information, take into account such matters as (some 20 factors are listed).

“There shall be a presumption that any conditions of release imposed shall be non-monetary in nature and the court shall impose the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant for further court proceedings and protect the integrity of the judicial proceedings from a specific threat to a witness or participant. Conditions of release may include ….”

I read the paragraph immediately above as doing nothing more (a) that creating a presumption or 

preference for “non-monetary” bail, and (b) providing that whether the release is monetary or non-

monetary, that the court shall impose “the least restrictive conditions … necessary.” In short, I read it, just as I read the applicable statute during my years on the bench.

What is bizarre about the paragraph is that legislature inexplicably ignores what it just said earlier in the introductory paragraph to the legislation:

“The General Assembly recognizes that the promotion of public safety and protection of crime victim rights are two of the main focuses of our State's criminal justice system….”

If in weighing the evidence whether to release the accused on “non-monetary” bail, the court cannot consider one of the two legislatively stated “main focuses of the State’s Criminal Justice System,” then the legislation is absurd. But where one interpretation of the law renders it absurd, and a second makes sense, courts opt for the latter result. An absurd process falls short of due process.

Imagine a statute that provided in imposing a sentence for murder, the court could not consider the danger the murderer posed to the public.

The courts of Illinois have jurisdiction over all “justiciable matters.” The legislature cannot tell a court how a case must be decided, or that clearly relevant evidence isn’t.

A statute that tells a court it can’t consider evidence that any reasonable judge would find material, and which the legislature itself says is a “main focus” in the matter, is an unconstitutional as an interference with the “inherent powers of the court” to provide a just result in the matter before the court.

For that reason, to avoid declaring the statute unconstitutional, it must be construed to allow judges to consider evidence that has been found by the legislature itself to be a “main focus,” and to set a mone-tary or non-monetary bond as the obviously material evidence dictates.



First Published in the Moline Dispatch and Rock Island Argus on November 13, 2022
Copyright 2022, John Donald O'Shea