Biden should use his 'pardon power' to end the political vitriol

I listened carefully to President Biden’s speech from the Oval Office tonight [October 19, 2023]. To the extent that he called for Congress to provide funding so that the U.S. could serve as the “arsenal of democracy” for Ukraine and Israel, it was an excellent speech.

Near the end of his speech, the President also importantly stated:

“Time is of the essence. I know we have our divisions at home. We have to get past them. 

 “We can't let petty partisan petty politics get in the way of the responsibilities of a great nation.

“We cannot and will not let terrorists like Hamas and Putin win. I refuse to let that happen.

 “In moments like these we have to remember who we are. We're the United States of America, and there's nothing, nothing beyond our capacity if we do it together.”

I also fully agree with that. So, what are the main causes of our divisions?

There are no matters that have divided the country more than:

• The two impeachments of President Trump;

• The bringing of criminal charges against President Trump and his supporters;

• The charges that Hunter Biden has been guilty of taking Ukrainian, Russian and Chinese monies.

• The charge that Ukrainian, Russian and Chinese monies have been funneled to President Biden, and that he is “corrupt.”

The “vitriol” (to use President Biden’s word) that had resulted from the accusations and counter-accusations has made it impossible for Republicans and Democrats in Washington to work together to solve the real problems of the country.

President Biden has to power the put an end to this division, vitriol and hatred that have crippled the House and the Senate for the past six years, and to “bind up” or least try to “bind up” the nation’s political wounds. He should use his constitutional powers to put an end to the above diversions. He should do what Lincoln wanted to do after the Civil War, and what President Andrew Johnson actually did. USE THE PARDON POWER!

If he is serious in wanting a united country, and Congressmen and Senators who can work together, now is the time to:

• Fully pardon former-President Trump and all those in his administration for any and all crimes they committed, or arguably committed, during the 2016 campaign through the end of President Trump’s term of President, including claims arising out of the so-called insurrection, and the mishandling of classified documents.

 

• He should also pardon himself and his son, Hunter, for any and all crimes they committed, or arguably committed, during the years of the Obama, Trump and Biden administrations, including claims for the mishandling of classified documents,

The choice is clear: Continue to snipe across the aisle or work across it.

First Published in the Moline Dispatch and Rock Island Argus on October 23, 2023. 

Copyright 2023, John Donald O'Shea

Iowa abortion law a good faith effort to strike proper balance

On July 12, this paper ran a long front page article, “Abortion ban likely — Iowa lawmakers aim to pass limits”

The article tells us that the bill prohibits abortions only after the baby’s heartbeat is detected. “Fetal heartbeat” is defined by the law as “cardiac activity — the steady and rhythmic contraction of the fetal (baby’s) heart within the gestational sac.”

Because abortions still can be performed before that heartbeat is detected, there clearly is no outright “ban;” just “limits.”

The law is also no “ban,” because abortions can be performed after a rape, if the rape victim reported the rape within 45 days, and after incest reported within 140 days of the offense.

The law also allows abortions where the woman experiences a “medical emergency.” “Medical emergency” is defined as “a situation where the abortion is performed to preserve the life of the pregnant woman whose life is endangered, or when the pregnancy creates a serious risk of substantial, irreversible impairment of a major bodily function.”

Some, who favor greater access to abortions take issue with that definition, arguing that a baby’s heartbeat can truly only be heard somewhere between 17 and 20 weeks; what is heard before that are only “electrical impulses.”

One doctor, who seemingly argues in support of abortion without any limitations, is quoted in the article as saying, “abortion is health care.” “Reproductive freedom is necessary for a healthy and functional community.” The legislation “forces women into lifelong obligations which impact her education, career, family and community.”

But how is abortion “health care for the baby?” Or is the baby unworthy of consideration? Where in that doctor’s remarks do we see any attempt at balancing the mother’s health care interests against the baby’s rights to life and health care?

Many Americans have a sincere religious belief that life begins at the moment of conception. Others believe a woman has an absolute right to abort/kill the child in her womb at any time.

What is clear, however, is that not all Iowans share the same religious or absolutist beliefs.

The people of Iowa can quibble about whether these limits imposed by their legislature are too restrictive or not sufficiently restrictive. But they can adjust or abolish the limits at any time in the future. In overturning Roe vs. Wade, the U.S. Supreme Court in its Dobbs' decision, admitted its prior error, and returned the issue to the people of the several states to decide the issue for themselves through their elected state representatives.

I favor the Dobbs decision overturning Roe for two reasons:

1. Roe amended our U.S. Constitution in an unconstitutional way. The Constitution itself specifies the procedures by which it can be amended. Nowhere does it provide that five, six, seven, eight or nine judges have that power.

2. I agree with Thomas Jefferson about the source of our fundamental rights: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

The passage of time, and the advances of science show the wisdom of Jefferson’s words. We now know that every human being possesses both the DNA of his mother and of his father. Indeed, it is that DNA which makes every embryo/fetus/baby a human being; indeed, a distinct human being from the moment of conception.

Therefore, if Jefferson is correct when he states that “all men” (meaning “all men, women and children”) have an “unalienable right to life” (and I think he was), then the baby in the womb, being a human being, has an unalienable right to life.

In saying that, I do not mean to imply the life of the embryo/fetus/baby can never be taken. But if taken, it can be taken only for the most serious of reasons —reasons akin to self-defense. In this legislation, for example, the legislature has impliedly determined that rape and incest do not end when penetration ends, but continue on, until the child conceived in rape/incest is aborted. Similarly, notwithstanding the fetus’ right to life, the legislature has determined that the child’s life can be balanced against the mother’s right to act in defense of her own life.

The words of the Declaration of Independence are germane here because it is undeniable that the embryo/fetus/baby is as human as you or I are. It is just younger and more helpless.

If our law doesn’t have as its highest value the protection of human life at all stages, what should its highest value be? Why did Lincoln regard slavery as a moral wrong? Why do we condemn Hitler’s “final solution” for the Jews, gypsies and the mentally disabled? Why do many oppose the death penalty for even those guilty of the most brutal murders? Is a baby’s life worth less?

Is the legislation perfect? Time will tell. But at least under the Dobbs’ decision, the representatives of the people of Iowa appear to have made a good faith effort to strike a reasonable balance between the unborn baby’s right to life, and the mother’s life, health and right to be free from criminally forced pregnancies.

First Published in the Moline Dispatch and Rock Island Argus on July 23, 2023. 

Copyright 2023, John Donald O'Shea

The remedy for hate-speech is counter-speech

Two op eds ago, I wrote that the First and Second Amendments to the U.S. Constitution might be amended in ways which I believed would appeal only to fools — to readers who were “constitutionally clueless” as to the meaning and importance of the First and Second Amendments in their lives and in the lives of the American people. The “simple” amendments that I "proposed," if adopted, would have gutted our First and Second Amendments and ushered in totalitarian government.


Now I ask a few more questions:

1. Can there really be “freedom of speech” if the government can define what constitutes “disinformation?”

2. Is there “free speech” if the government can make the dissemination of “disinformation” a criminal offense?

3. If the government can imprison you for up to five years if you happen to say something that the government labels “disinformation?”

4. Do you really have a “right to keep and bear arms” if the government can impose any limitation on that right that the government deems “reasonable?”


In 1777, one year after he wrote our Declaration of Independence, Thomas Jefferson penned the “Virginia Statute for Religious Liberty.” Jefferson deemed his statute, which became Virginia law in 1778, to be his second most important writing. As you read these few quotes from Jefferson, note Jefferson believed our “rights” were “God-given;” not gifts from any government.

“Almighty God hath created the mind free, and manifested his supreme will that free it shall remain, by making it altogether insusceptible of restraint …

“that all attempts to influence it by temporal punishments … are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.”

Jefferson saw with clear eyes the historical tendency of governments to ordain that only their beliefs were true and infallible.

“Legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible, … have assumed dominion over the faith of others, (and have set) up their own opinions … as the only true and infallible, and … endeavor(ed) to impose them on others … over the greatest part of the world and through all time"

Jefferson understood, that allowing the government to shut down out thought that it disagreed with inevitably destroyed all freedom of speech and religious liberty.

“To suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles, on supposition of their ill tendency is a dangerous fallacy …

“It at once destroys all religious liberty.”

Jefferson understood the tendency of the magistrate to “approve or condemn the sentiments of others only as they shall square with or differ from his own.”

Jefferson, however, realized that some speech must be restrained:

“It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”

 So, what was Jefferson’s remedy for disinformaton? Misinformation?

“Truth is great and will prevail if left to herself.

“She is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition [she is] disarmed of her natural weapons: free argument and debate.

“Errors cease to be dangerous when it (truth) is permitted freely to contradict them.”

These principles and those enunciated in the Declaration of Independence are the principles under which Madison, Jefferson’s right-hand man, drafted our Bill of Rights.

When it comes to determining which speech shall be permitted and which tenants of faith are true and can be practiced as a person’s free exercise of religion, our Constitution vest that determination solely in the individual; not in any branch of government.

Over the nearly 200 years of our republic, the Supreme Court has narrowly defined a few classes of speech that have historically been deemed beyond the protection of the First Amendment: obscenity, defamation, fraud, incitement, fighting words, speech integral to criminal conduct, and speech that creates a clear and present danger.

Lying, disinformation, misinformation, hate-speech, bullying speech, however, have never been proscribed; their remedy, as noted by Jefferson, lies in counter-speech.

Similarly, the remedy for using or possessing guns in a criminal fashion, is prison. It is not to punish or confiscate from the law-abiding individual.

After our Constitution was drafted, it is said that a woman asked Benjamin Franklin what sort of government the convention had created? He is said to have answered, “A republic — if you can keep it.”

Jefferson’s notion that our fundamental rights are God-given made America the exception among nations. The men who built America on his premise gave us a great gift. The English people fought a 700-year battle with the successors of William the Conqueror to force recognition of those God-given rights. Americans who would cede their rights are fools. Those who would permit the government to nibble away at them aren’t much better. Rights ceded to government are rarely regained.

First Published in the Moline Dispatch and Rock Island Argus on July 16, 2023. 

Copyright 2023, John Donald O'Shea

The right of parents to educate their children is constitutional

A great debate is raging in the United States. At issue is who controls the education of children in grades K-12? The federal government? The state? Local school boards? The teachers and their unions? Or the parents?

Can teachers and/or school boards withhold from parents, information as to what is being taught in the schools relative to sex and gender orientation?

Over the last century, the U.S. Supreme Court has spoken on the issue of the rights of parents to raise and educate their children. And also, when the state, its welfare agencies, and its teachers may interfere with those parental rights. Just two examples:

In November of 1922, the voters of Oregon, by “initiative” approved a Compulsory Education Act, the manifest purpose of which was “to compel general attendance at public schools by normal children, between 8 and 16, who have not completed the eighth grade.”

The Society of Sisters was an Oregon Catholic Religious Corporation organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools.

In its primary schools, its students were taught the subjects usually pursued in Oregon public schools during the first eight years. Additionally, systematic religious instruction and moral training, according to the tenets of the Roman Catholic Church, was also regularly provided.

The Society sued, alleging, among other things, Oregon’s Compulsory Education Act conflicted with the right of parents to choose schools where their children will receive appropriate mental and religious training.

In ruling for the Society of Sisters — and the parents who chose to educate their children with the Sisters — the court said, 

“No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”

The court, however, noted, 

“The inevitable practical result of enforcing the Act under consideration would be destruction of appellees' primary schools — and perhaps all other private primary schools for normal children within the state of Oregon.

“These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly, there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the state.

“Under the doctrine of Meyer vs. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.

“As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state.

“The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

But can the state ever deprive the parent of the right to raise or educate his child? Of course. But not without a judicial finding of parental “unfitness.”

In Staley vs. Illinois, the Supreme Court set out the rule:

“(This) Court has frequently emphasized the importance of the family.

“The rights to conceive and to raise one's children have been deemed "essential … "basic civil rights of man," … and "rights far more precious ... than property rights" [Citations omitted].

"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."

The court then concluded, saying,

“All Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.

When Stanley is read in conjunction with Pierce, I think the following rules clearly emerge:


1. “The fundamental theory of liberty upon which all governments in this Union repose, excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.

2. The rights to conceive and to raise one's children have been deemed “essential” and “basic civil rights of man.”

3. The 14th Amendment guarantees the “liberty of parents to direct the upbringing and education of children under their control.”

4. “All parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody — or before they lose the right to control their child’s education.

Bottom line: Parental rights are constitutionally protected. School boards, administrators and teachers who trample parental rights, under color of law, open themselves to be sued under statutes designed to protect 14th Amendment rights.

First Published in the Moline Dispatch and Rock Island Argus on July 9, 2023. 

Copyright 2023, John Donald O'Shea

Are men and women Catholics really "all one in Christ?"

On Saturday, June 24, 2023, an article appeared in the Dispatch-Argus, captioned, High-profile nun inspires hope for Catholic women.

“(Pope) Francis … has already done more than any modern pope to promote women by changing church laws to allow them to read scriptures (on the altar) and serve on the altar as eucharistic ministers, even while reaffirming that they cannot be ordained as priests. He has changed the Vatican’s founding constitution to allow women to head Vatican offices, and (has) made several high-profile female appointments, none more symbolically significant than that of (Sister Nathalie) Becquart’s.  

“As undersecretary in the synod of bishops, Becquart was de facto granted the right to vote at the upcoming October synod.

“In April, the Vatican announced that 70 non-bishops would vote alongside (the bishops) in October, and that half of them were expected to be women.”

So, as a male and a life-long Catholic, how do I feel about the pope changing the church’s constitution? I can only sincerely applaud. The pope’s work seems entirely consistent to me with Paul’s dictum in Galatians 3:28: "There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for you are all one in Christ Jesus."

We are all aware, of course, of other seemingly contrary dicta attributed to Paul, such as 1 Corinthians 14:33–35: " Women should remain silent in the churches; they are not allowed to speak, but must be in submission, as the law says. If they want to inquire about something, they should ask their own husbands at home; for it is disgraceful for a woman to speak in the church."

So how can the two passages be reconciled? Modern scholars have taken at least three tacks.

1. Some argue that Corinthians 14:33-35 is a “post-Pauline interpolation.” 2. Others argue that the passage must not be read out of context, but that it must be read in conjunction with verse 36 that immediately follows: "What! Did the word of God originate with you, or are you the only ones it has reached?" 3. While a third group, argues that the passage is utterly inconsistent with how St. Paul treated the women who were his co-workers: especially, Priscilla, Phoebe, and Junia. Paul honors Phoebe with the title, “deacon,” and Junia as a “prominent apostle.”

If it was truly “disgraceful for a woman to speak in the church," how could they have functioned as “deacon” or “prominent apostle” in the churches Paul founded?

And then, of course, Luke 8, 1-3 tell us that certain Jewish women were among Jesus' earliest followers. They included Mary Magdalene, Joanna and Susanna, who accompanied Jesus throughout his ministry, and supported him out of their private funds.

As a Catholic, I’ve watch numerous women serve as lectors and eucharistic ministers, and I have no doubts whatsoever that they read scriptures and distribute the eucharist every bit as well as any of the men.

But as I have grown old, I have attended more and more funeral services in various Protestant churches, and in the Jewish Synagogues. In the process, I have watched a fair number of women ministers/rabbis conduct the services. In almost every such service that I have attended, I think the women ministers/rabbis have conducted warmer, more-feeling services than their male counterparts. From the work I have seen the women ministers/rabbis do, I have no doubts whatsoever that mature Catholic women could do a fine job as priests.

I realize that all twelve of Christ’s original apostles were men. I am certain that the Protestant denominations realize the same thing. Somehow, they have come to the conclusion, before Rome, that “there is neither male nor female: for you are all one in Christ Jesus." Recognizing the equality of women within the church also seems to me consistent with “loving one’s neighbor as one’s self.” Treating women as second-class Catholics doesn’t.

Christ chose 12 Jewish men to be his apostles. Does that mean that only Jewish men can be Catholic priests?

Pope Francis is bucking nearly 2000 years of church tradition. But he clearly sees that without a sufficient number of priests, that while Satan may not be able to prevail against the church, the church hamstrings itself.

If the church is short of priests, there clearly are two great pools from which it can draw: married men, and women.

A friend of mine, a Catholic priest, has told me that “there is no good reason for the church not to ordain married men, who are Catholics in good standing, who have successfully raised their families.” He points out that three synoptic gospels say that Peter had a mother-in-law. Peter, therefore, was either married, or had been.

Early in the history of the church someone made a rule that women could not be priests. If, however, earlier popes or churchmen had power to tighten the rules to bar women from the priesthood, Pope Francis has power to loosen them. Matthew 18:18.

If a mature Catholic woman, like Sister Nathalie Becquart, can function effectively as undersecretary to a synod of Catholic bishops, there is scant likelihood that she couldn’t effectively serve as a priest.

My priest friend also reminds me that “Rome tends to move at a glacial pace.” Pope Francis, perhaps sensing his own mortality, seems to be moving a good bit faster. Good!

First Published in the Moline Dispatch and Rock Island Argus on July 2, 2023. 

Copyright 2023, John Donald O'Shea

Is it time to amend First and Second Amendments?

When the first Congress added the Bill of Rights to our U.S. Constitution, freedom of speech, freedom of worship and the right to bear arms were put at the top of the list of protected rights.

The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech … .”

The Second Amendment provides, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

So, is it time to “update” these amendments? To amend them to bring them into conformity with the more enlightened current notions of perhaps half of the American people.

Should the First Amendment perhaps be revised to provide, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; Provided, however, that no religious denomination shall make or enforce any ecclesiastical rule or law which shall abridge the privileges or immunities of citizens of the United States; nor shall any religious denomination deprive any person of life, liberty, or property, without due process of law; nor to deny to any person the equal protection of the laws of the United States. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article?


Should the revised First Amendment further specify, “Congress shall make no law abridging the freedom of speech, unless that speech has first been determined to be ‘disinformation,’ by the president’s office of disinformation. Congress hereby authorizes the president to establish a presidential office of disinformation, and to appoint the officers thereof. That office shall have the sole power of determining what speech amounts to “disinformation,” and to prohibit dissemination thereof whenever that office determines that dissemination of that “disinformation” creates a likelihood of danger to the government or people. Disinformation shall be punishable by imprisonment from one to five years, and a fine up to $5 million.


Should the Second Amendment be amended to provide, “The right of the people to keep and bear arms, shall be subject to the power of Congress to establish any and all limitations on that right as Congress shall adjudge reasonable?



Would we be better off with these simple amendments to our Bill of Rights? Should the Bill of Rights be subject revision by the majority vote of both Houses of Congress, when approved by the president? Whenever a majority of the American people hold a referendum to amend the First and/or Second Amendment?

Or should the rights guaranteed in the Bill of Rights be above the will of any Congressional simple majority? Above the power of a simple majority of the voters to amend?

It has been said that the purpose of the Bill of Rights was to put the inalienable rights of the American people above the power of repeal or amendment by a simple majority? Were the men who did that right or wrong?

First Published in the Moline Dispatch and Rock Island Argus on June 25, 2023. 

Copyright 2023, John Donald O'Shea

Cure for gang violence is faster trials

Judges, prosecutors and prompt jury trials are the remedy for street gang violence

Prosecuting street gang violence is most often very difficult. The members of the gangs perpetrating the violence most often do whatever they can to avoid testifying honestly for the State’s Attorney prosecuting the case. That includes “taking the 5th Amendment,” disappearing to avoid testifying, telling half-truths, and even engaging in perjury. The members of the rival gang often do the same, preferring to rely on street violence and revenge rather than on the Criminal Justice System.

Notwithstanding these obstacles, the only way to break the cycle of gang violence is prompt prosecution. The gang members have to know that it is more dangerous to be caught breaking the law than it is to engage in street gang violence. When a gang member is convicted of murder, the penalty imposed must be near the maximum to make it clear to all gang members that the next killing will merit a similar penalty. The penalty must be sufficient to take the fun out of shooting at opposing gang members on sight.

The Sixth Amendment to the U.S. Constitution (Article 6 of our Bill of Rights) provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”

The Illinois Legislature, except in cases where the defendant is not fit to stand trial and where the defendant causes the delay, to implement that Sixth Amendment right has provided that where a defendant is in custody, he shall be tried by a court having jurisdiction within 120 days. A defendant who is out on bond and who demands a speedy trial has to be brought to trial within 160 days in the absence of an exception.

The speedy trial rule exists because a defendant awaiting trial in custody is serving the equivalent of prison time before he has been found guilty. Without the rule, a defendant taken into custody could sit in jail indefinitely if the prosecutor indefinitely delays bringing his case to trial.

But the speedy trial rule also exists to require cases to be brought to trial within the stated time limits to afford the victims of crime assurance that the law will deal with the alleged perpetrator of a crime as quickly as the needs of the prosecution and defense permit.

Shortly after I was elected a judge in 1974, I was sent to a “New Judges’ Seminar,” conducted by the Hon. Roy O. Gulley, the Illinois Supreme Court’s administrative director of the Illinois Court System.

Among the things Judge Gulley told us were the following:

1. A judge should not sit on the bench like an “alabaster bust of his grandsire.” A judge is not a mere umpire; he is the governor of the trial. It is his non-delegable duty to see that justice is done.

2. Besides having judicial duties, a judge has administrative duties. Justice delayed is justice denied. The judge must control his own docket; he cannot cede management of his docket to the attorneys, the clerks, or anybody else.

3. When you set discovery dates, pre-trial dates, and plea dates for a Criminal case, set for the “ordinary” Criminal Case. The trial date for an “ordinary” criminal case should be set for no more than 60 days after the defendant’s initial appearance in court. Set the “extraordinary” cases on the same 60-day schedule. If continuances are required, they should always be granted to a day certain. (In running the Criminal Division in Rock Island County, my continuances were always for 14 days, but the attorneys were aware that they could always get one or more additional 14-day continuances for “good cause.” In the 8.5 years that I served as the presiding judge of criminal, I cannot recall ever granting a 3rd continuance — even in a murder case.)

4. Continuances should be granted only for something that was not foreseen when the dates were initially set and only for bona fide cause.

Before I was appointed head of the Criminal Division in Rock Island County, the Illinois Legislature provided that defendants who failed to appear for trial on the date set by the court could be tried in their absence if they were admonished at the time the trial date was set of all the constitutional rights they would be forfeiting if they failed to appear for trial.

In an era when the idiots in the legislature have legislated to eliminate cash bail, trying defendants who have been properly admonished and who fail to appear for trial in absentia strongly deters defendants from jumping non-cash bail. Once "old Gang-bang Charlie" is found guilty in absentia and a warrant is issued for his arrest and confinement pending sentencing, the word will get around the street gang community like wildfire. It takes about two minutes to properly admonish “that you will be tried in your absence if you fail to appear for trial.” It saves the sheriff hours of work tracking down the absconding defendant. And it normally results in a quick, easy trial for the court and the attorneys.

When judges are being paid roughly $200,000 per year, it is not unreasonable for the voters to expect the judges to conduct prompt trials. There is no legitimate excuse, barring the defendant’s unfitness, for even murder cases taking a year for “disposition” — i.e., until plea, dismissal or the first day of trial.

Those that say it can’t be done are too lazy to try. Once the judge makes up his mind to move cases, if the prosecutor cooperates, the average time of disposition should be no more than 90 days.

And if our judges or prosecutors need a seminar, I’ll teach them what Judge Gulley taught me.

First Published in the Moline Dispatch and Rock Island Argus on June 18, 2023. 

Copyright 2023, John Donald O'Shea

A simple plan to get "big bucks" out of judicial elections

It is long-past time for the Illinois Supreme Court to make a new rule to get “big bucks” out of Illinois Judicial Elections. That rule should be designed to remove the incentive for donors to dump obscene amounts of money into Illinois Judicial elections.

What am I talking about?

Example 1. Lawyer X runs to fill a vacancy on the Illinois Supreme Court. X is a lifelong Democrat. To get Lawyer X on the Supreme Court, The Democratic Governor of Illinois contributes $1 million and the Democratic Speaker of the Illinois House contributes $350,000, to Lawyer X’s “Campaign Committee.” They do so because they believe it is more likely Lawyer X will approve the Congressional reapportionment map drawn by Democrats, than his Republican opponent.

Example 2. Lawyer X wins election and is now Mr. Justice X. After serving his 10-year term, he faces a “Retention Election.” He has no opponent. The ballot simply askes, “Shall Judge X be retained.” Q and Z are two Republican billionaires. Because Q and Z consider Justice X likely to vote for the Democrat’s reapportionment map, which they consider outrageously “gerrymandered,” they create a “Committee for an Honest Judiciary” and fund it to the tune of $7 million. With that $7 million they plan to run newspaper ads labeling Justice X, who has declined to recuse himself from consideration of that reapportionment case, “The best Judge money can buy,” “The governor’s pet judge.” Etc.

The governor and the speaker will be de facto parties-defendant (in their official capacities) in the suit to have the Democrat’s map declared “unconstitutional. The “CHJ” will also funds TV spots, bellowing that “Justice X, who has refused to recuse himself, after having taken $1,350,000 from the two defendants, is guilty of creating a gross appearance of impropriety.” And the “CHJ” will probably go on to accuse Justice X of “corruption” — “No honest judge takes $1.35 million as a campaign donation, and then sits on a case involving the donors.”

Lost in the hyperbole is the concept that the money wasn’t really given to the judge; it was, instead, given to his “campaign committee,” and that committee never told the judge of the S1.35 million. But then, of course, news of the donations makes all the newspapers.

My point is this: If Justice X sits on a case where a party donated $1.35 million, he paints a target on his back, and puts himself in a “no win” situation. Even if his decision is impeccably correct, roughly half the voters in the state will focus only upon the fact that he has taken $1.35 million from a party. This brings not only Justice X into disrepute, but, even worse, it brings the entire Illinois Judiciary into disrepute.

Can limits be put on the amount of money a person, corporation or other entity can contribute to a judicial campaign? Could the Supreme Court write a rule that said, “No judicial campaign committee shall receive a donation from any person, corporation, or other entity exceeding $100?” $500? $1,000? (Note: the sum would have to be small enough that no reasonable person would believe that such a campaign donation would be sufficient to influence any rationale judge.)

But would such severe limits pass constitutional muster? I don’t know. Donations have been equated with free speech in the case law.

I would therefore opt for an alternate “solution.” I would strongly suggest that the justices of the Illinois Supreme Court write the following Rule of Judicial Conduct:

“After his/her election or retention, the judge shall promptly make himself aware of all donations made to his “campaign committee “and keep a list of all those donations on hand. 

 

"The judge shall have a duty to recuse himself/herself in all cases where it appears that donating person, corporation or other entity has donated directly or indirectly more than $500 to the judge’s “campaign committee.”

I suggest the sum of $500 because no Illinois Judge, making an annual salary of $212,058 to $258,456 is going to be bribed for $500.

I am reasoning that if a litigant, who otherwise would donate $1 million or $5 million to a Judge’s “campaign committee,” knows that the judge won’t be able to hear his case, the incentive to donate vast amounts of money to the judge’s “campaign committee” will immediately disappear.

Maybe I am a “Pollyanna.” But I don’t like seeing judges paint targets on their own backs.

I don’t like judges doing anything that is likely to create an appearance of impropriety. The conduct of a single judge can bring an entire judiciary into disrepute — even if it is “ethical” under existing rules.

The drafters of the 1970 Illinois Constitution’s Judicial Article wanted to get money out of judicial elections. It’s time for the Illinois Supreme Court to implement that intent.

First Published in the Moline Dispatch and Rock Island Argus on June 11, 2023. 

Copyright 2023, John Donald O'Shea

Street Gangs — A return to Barbarism and the Dark Ages

At the end of the first century, or at the beginning of the second an unknown Christian moralist wrote an instructional tract known as the Didache. It begins as follows: “There are two ways, one of life and one of death, and there is a great difference between the two ways.”

 Recent events on the streets of Davenport demonstrate that that statement still rings true nearly 2000 years later. It puts in focus what happens when segments of society opt for “revenge,” rather than working within our criminal justice system, based on our U.S. Constitution. 

 

There is a fine line between a civilized society and barbarism. That line is crossed when citizens discard our criminal justice system, with its built-in safeguards for victims and defendants alike, and op instead for “revenge.” In doing so, the discard civilization and choose instead a “system” of survival of the fittest — might makes right —the ends justify the means. 

 

There was a time in human history, when there were no written laws and there were no courts to punish criminal acts. 

 

Moses and the Jewish people wandered for 40 years in the Sinai Desert. Moses realized that when the Jewish people reached the “Promised Land” they would need laws to punish murder, theft, perjury, and interference with established marital relationships. 

 

The Mayflower Compact of the Pilgrims was a similar acknowledgment. 

 

In the absence of the criminal law, to obtain justice for a wrong done, the injured party, his family, or his tribe relied upon “revenge.” Our newspapers daily show that that can happen even in a modern American city. Street gang killings are generally “revenge” killing. “Revenge” is their justification.

 

A recent Disptach front-page article by Tom Loewy, “It just a fact of life,” demonstrates the point. 

 

With no little effort the following facts can be extracted from the article. 

 

1. On May 19, 2018, 16-year-old Jovontia Jones was shot to death outside Hilltop Liquor,

during a drive-by shooting. No one has ever been charged in connection with his murder. 

[Note that his death is posited as the justification for the following criminal acts]. 

 

2. On Tuesday, May 22, 2023, John E. Hanes III was found guilty of the 2021 murder of Jamon Winfrey (age 14).

 

3. Nessiah Clark is presently on trial for the August 2022 attempted murder of Delmont Thomas. Clark is also charged with additional offenses, including possession of a firearm by a felon. 

 

To understand, how revenge fits into this equation, consider the following:

 

1. A woman present as a spectator at the trial of Nessiah Clark, identifying herself as Nessiah Clark’s mother, told Mr. Loewy, 

 

“I will say this: the violence of that day happened because of what happened in the past. Nobody shot anybody that day out of the blue, for no reason. Nessiah has been shot at before, and his half-brother (Aden), was shot at in the same incident. …. [D[id he carry a gun. Yes. he did. ….

 

“I would rather Nessiah to have a gun and not need it, rather than need a gun and not have it. … Maybe people don’t understand it, but there are killers out there. The threat of violence is very, very real for these yonng men. 

 

“It’s when he’s out on the streets, that I worry. Every time I hear sirens I wonder if he’s the one laying somewhere dead….”

 

2.. Davenport Police Sergeant Jordan Sanders said, Hanes was a member of the MMG. Street gang. Hanes fired on the car Whitney was in, because he believed members of Savage Life street gang. Sanders continued, “MMG and Savage Life had a “Shoot on sight” policy, when the spotted each other.”

 

3. According to Jovontia’s aunt, Sylvia Abbey, “MMG was basically a gang formed to avenge Jovi’s death.

 

 

Any rational writer or reader, of course, must be cautious when accepting the statements of street gang members, their family members, and their “associates.”. People who are willing to justify [revenge] murder, attempted murder, and possession of firearms by convicted felons, might just be inclined to lie when it serves their purposes. 

 

But my point is this: Street Gang Violence is a return to an age before criminal justice systems were known.  It is a return to survival of the fittest, and might makes right. It is a system which affords no rights whatsoever to the accused, and provides no safeguards for the innocent. Street gang violence, to be blunt, is a return to barbarism — and to the dark ages, where each killer is his own judge, jury and executioner.  

 

The people who eschew the criminal justice, turn their backs on assisting the police, and tolerate for street gang violence, deserve exactly what the get. 

 

Is it really possible to claim “Lives Matter” when guys with guns, probably acquired on the “Black Market,” gun down a 16-year-old boy standing outside liquor store? A 14-year-old-boy riding in a car? Another male outside a city gas station?

 

Is it really possible to claim that “Lives Matter” when rival gangs have a “Shoot on sight” policy? When a mother “would rather her son, a convicted felon, have a gun and not need it, rather than need a gun and not have it? And why did the convicted felon “need” a gun? Here, if the State’s allegations are true, he “needed” a gun to attempt murder.

 

The residents of a community have a choice There are two ways: The community can assist the police in bringing criminals to justice; or, they can put their trust in street-gang gunmen who operate a system of  “revenge.” 

 

I spent most of my professional life around police officers. A very few were not fit to be a police officer. But no cop that I have ever known has had “a shoot on sight policy” toward any group of people.

First Published in the Moline Dispatch and Rock Island Argus on June 4, 2023. 

Copyright 2023, John Donald O'Shea

 

 

Prediction: Bail provisions of the Safe -T Act will be found to be unconstitutional

On Nov. 9, 2022, a suit for declaratory and injunctive relief was filed by the states’ attorneys from 66 of 102 Illinois counties. Their petition for summary judgment alleged that Public Act 101-652, and how it was enacted, were in flagrant violation of the Illinois Constitution, and the act should be stricken as void in its entirety.

In December 2022, a judge in Kankakee County declared certain portions of the “so-called” Illinois Safe-T Act unconstitutional. The ruling dealt with portions of the Act limiting the power of judges to impose “cash bail” on those arrested for various criminal offenses.

The state then appealed to the Illinois Supreme Court. The court issued a stay of the lower court ruling, and heard arguments from the opposing sides in March 2022.

The 62 prosecutors put forth six arguments. I will address only two; they should be dispositive.

First: Because the act is not limited in scope to the “criminal law” even under a generous reading, it violates the single-subject clause set forth in Article IV, Section 8(d) of the Illinois Constitution, and is void in its entirety.

The argument is that “reforming bail” is “criminal in nature.”

A state law pertaining to “whistleblowing,” applicable to 7,000 units of Illinois local government, isn’t “criminal in nature.” Nor is a law expanding the “Treatment Act” to other first responders. Nor is an act specifying how penitentiary prisoners must be counted for the purpose of determining representative districts. Nor is granting the attorney general increased powers to pursue civil actions, etc. for the court of claims.

The gist of the argument is this: “The “plain language of the act addresses multitudes of subjects with no natural or logical connection to criminal law. “

On this argument alone, the 62 prosecutors should win. Otherwise, the single-subject clause of the Illinois Constitution is a nullity. If they prevail on this argument, the court would not need consider the remaining arguments, because the Illinois Supreme Court has held that when the law violates the single subject clause, the entire law is struck down.

Second: By eliminating monetary bail and by creating a myriad of rules and strictures that severely restrict the exercise of judicial discretion to consider and assign appropriate weight to the most germane facts, the General Assembly encroached upon the inherent functions of the judiciary and violated the separation of powers clause of the Illinois Constitution in Article II, Section 1.

Article II, Section 1 of the Illinois Constitution provides: “The legislative, executive, and judicial branches are separate. No branch shall exercise powers properly belonging to another.” The Illinois Supreme Court has held that if “power is judicial in character, the legislature is expressly prohibited from exercising it. Judicial power is that which adjudicates upon the rights of citizens and to that end construes and applies the law.”

Legislative enactments undermining the “traditional and inherent” powers of the judicial branch, particularly, those restricting judicial discretion, violate the Separation of Powers Clause.

The Supreme Court has also recognized that “matters concerning court administration” fall within the inherent power of the judiciary, and the legislature is “without power to specify how the judicial power shall be exercised under a given circumstance.”

The Illinois Supreme Court has specifically held that bail is “administrative” in nature, and that the court has independent, inherent authority to deny or revoke bail to “preserve the orderly process of criminal procedure.”

The Supreme Court has held that the trial court had inherent discretion to hold the defendant in custody even though he was eligible for bail under the Illinois Constitution.

In Elrod, the Supreme Court expressly recognized that the court has the ultimate authority in determining the appropriateness of bail. The defendant in Elrod was charged with non-capital murder and held without bail, even though the Illinois Constitution at the time imparted a right to bail to “all persons ... except for capital offenses.” The court began its analysis by stating:

“In our opinion, the constitutional right to bail must be qualified by the authority of the courts, as an incident of their power to manage the conduct of the proceedings before them, to deny or revoke bail when such action is appropriate to preserve the orderly process of criminal procedure.”

Although Public Act 101-652 does grant very limited authority to the court to enforce its pretrial release orders through sanctions, this does not cure the legislative overreach into the inherent powers of the judiciary. 725 ILCS 5/110–6. The legislature is “without power to specify how the judicial power shall be exercised under a given circumstance.”

The Illinois Supreme Court held that even though the Juvenile Court Act made no provision for the bail of an allegedly delinquent minor, the court had inherent power to set bail.

Since its beginnings, (in medieval England) the concept of bail has always involved money – whether cash, collateral, credit, or the conditional promise of payment by a surety. Requiring a “bond with sufficient sureties is premised on the assumption that economic loss to the accused, his family or friends, will assure his appearance for trial.”

Acting as a surety must involve some threat of loss and, accordingly, bail bonds secured by cash deposit or stocks and bonds equal in value to the bail are constitutional. Determining appropriate surety to compel the appearance of a defendant is a judicial, not a legislative function.

Argument two standing alone should also be dispositive of the case. I can’t imagine any judiciary ceding its constitutional authority and discretion to control bail to any legislature.


My prediction is that the trial judge will be affirmed.

First Published in the Moline Dispatch and Rock Island Argus on May 30, 2023. 

Copyright 2023, John Donald O'Shea

Many owe Trump — and others damaged — a full, fair and very public apology.

“In short, the freedom and liberty of every American rests upon nothing more than a fragile understanding,” written on a 15-page scrap of paper” (the U.S. Constitution) John Donald O’Shea, Moline Dispatch, Dec. 1, 2014.

On May 12, 2023, John H. Durham, Special Council for the United States Department of Justice, submitted his report on matters related to intelligence activities and investigations arising out of the 2016 presidential campaigns to Attorney General Merrick B. Garland.

The 306-page report is a damning indictment of the conduct of the “top men” in our FBI and our intelligence agencies.

But will most Americans even consider reading its 13-page “Executive Summary?” Or is this a case of, “Don’t bother me with the facts; I already have made up my mind.”


In his Executive Summary, Durham writes:

“Based on the evidence gathered in multiple exhaustive and costly Federal investigations on the matter (including those of the U.S. House, the Inspector General, and Special Counsel Mueller), neither U.S. law enforcement nor the Intelligence Community appear to have possessed any actual evidence of collusion in their holdings at the commencement of Crossfire Hurricane investigation." 

 

“Our investigation also revealed that senior FBI personnel displayed a serious lack of analytical rigor towards the information that they received, especially information received from politically affiliated persons and entities. This information in part triggered and sustained Crossfire Hurricane and contributed to the subsequent need for Special Counsel Mueller's investigation. In particular, there was significant reliance on investigative leads provided or funded (directly or indirectly) by Trump's political opponents. The Department did not adequately examine or question these materials and the motivations of those providing them, even when, at about the same time, the Director of the FBI and others learned of significant and potentially contrary intelligence.”

The bottom line is this: the “Trump Collusion Claim” was a hoax, an attempt to frame President Trump, and a fraud upon the American people, which was begun with no basis in evidentiary facts, fueled by perjury and slovenly practice in pleadings before the FISA court, and funded, directly or indirectly, by operatives of the Hilary Clinton campaign, based on a dossier, with no basis in truth, that it paid for.

As a result of the fraud, the lives of innocent Americans — George Papadopoulos, Carter Page, and Gen. Flynn — were financially wrecked and their reputations destroyed, as they were indicted, publicly arrested, jailed, convicted on false testimony while exculpatory evidence was purposefully withheld.

President Trump was falsely labeled a “traitor,” and his administration was enmeshed in a web of lies and two impeachments over the course of four years. And the campaign of lies probably cost him the 2020 election.

And as all this was going on, a Democratic Congress, ABC, NBC, CBS, CNN, MSNBC, the New York Times, the Washington Post and major newspapers throughout the nation, political spokesmen like Adm. Kirby, Twitter and Facebook all eschewed their independence and integrity. And most continued to “peddle the hoax” even after the Mueller Report found their was ‘no Russian collusion.”

For me, the last sentence of Durham’s “Executive Summary” seems to “say it all.”

“The promulgation of additional rules and regulations (to govern the FBI handling of such investigations) to be learned in yet more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of “fidelity, bravery and integrity” are not engrained in the hearts and minds of those sworn to meet the FBI mission of “Protecting the American people and upholding the Constitution of the United States.”

(Note the similarity of my 2014 quote, above).

So, what’s my suggestion to put an end to this monumental hoax and fraud upon the American people? How are the reputations of Donald Trump, et al to be restored? How do the likes of the NY Times, NBC, CNN, et al, ever regain their integrity, self-respect and public respect?

They publicly and unequivocally must confess their errors. Next, they must fully and unequivocally apologize to the American people, the victims of the baseless prosecutions, and to now private-citizen Donald J. Trump. If newspapers, they do so, with banner headlines, perhaps for a week straight. If TV or cable media, they do so, so openly and repeatedly — perhaps for a solid week — so that none of the regular viewers could miss their apologies,

There is a passage in the Act of the Apostles where Paul and Silas are deprived of their rights as Roman citizens, beaten, jailed and put in chains by the magistrates of Philippi. Then when the magistrates were apprised of their error, they personally went to the jail, and publicly made their apologies. No less should happen here.

Nor should this ever happen again in America. 

Any bets?

First Published in the Moline Dispatch and Rock Island Argus on May 21, 2023. 

Copyright 2023, John Donald O'Shea

If policy differences basis for termination, let voters know

On April 22, 2023, the Dispatch-Argus ran Olivia Allen’s article, “A ‘mutual’ separation for board, Lawrence,” on the paper’s front page. Perhaps, because I do not live within the Rock Island-Milan School District, I did not read the article.

I did not give the article a second-thought until a friend of mine at the golf course asked, “Why the school board got rid of the superintendent? And why did they agree to pay him $350,000?”

After having had to admit, that “I didn’t know,” and that “I hadn’t read the article,” I went back and read it.

In reading the article, I learned that Dr. Lawrence was the board’s superintendent, pursuant to a contract with the school board. Lawrence had served four years under his contract, and that his contract was not up for renewal until 2025.

I also learned that Dr. Lawrence’s performance as Superintendent had recently been evaluated, and that the Board discussed that with him at a closed meeting of the Board on March 21st. (A closed hearing for that purpose would be proper).

I further learned that Dr. Lawrence had not been “fired.” Rather, his contract had been terminated pursuant to the mutual agreement of Dr. Lawrence and the school board, with the board paying him $350,000 for Lawrence agreeing to the early termination. (I saw no problem with that, either).

In the words of Board President Terrell Williams, “The circumstances leading up to the contract termination were a “personnel matter, that the Board … will not comment on. …. (The goal was) always to do so amicably.”

But that was followed by the rather inexplicable comment by outgoing Board member, Tiffany Stoner-Harris: “(She) could see Lawrence being a great superintendent somewhere.”

So, why do you get rid of a superintendent who could be a “great superintendent somewhere?”

And why do you pay him $350,000 to go somewhere else, quickly?

Personally, I have no interest in whether Dr. Lawrence remains superintendent or not. I have never met the man, nor followed his handling of board’s affairs.

But the voters in the Rock Island-Milan School District do.

As an old Moline Corporation Council, before writing this, I spent four or five hours examining Illinois’ Open Meetings Law, in which the underlying “policy” is clearly stated:

“Policy. It is the public policy of this state that public bodies exist to aid in the conduct of the people’s business, and that the people have a right to be informed as to the conduct of their business.

“In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.

“The General Assembly further declares it to be the public policy of this state that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.

“Exceptions to the public’s right to attend exist only in those limited circumstances where the General Assembly has specifically determined that the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of invasion.

“To implement this policy, the General Assembly declares:

    (1) it is the intent of this act to protect the citizen’s right to know; and

    (2) the provision for exceptions to the open meetings requirements shall be strictly construed against closed meetings.”

The Board here appears to have properly closed the meeting under what is commonly called the “personnel exception:”

(a) Openness required. All meetings of public bodies shall be open to the public unless excepted in subsection (c) ….

(b) Construction of exceptions. The exceptions contained in subsection (c) are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects within their scope. The exceptions authorize but do not require the holding of a closed meeting to discuss a subject included within an enumerated exception.

(c) Exceptions: A public body may hold closed meetings to consider the following subjects: The appointment, employment, compensation, discipline, performance, or dismissal of specific employees ….

Here the meeting appears to have been properly closed to discuss “employment, compensation, … performance, and dismissal of a specific employee” — the superintendent.

Nobody, however, involved seemingly is making any claim that Dr. Lawrence’s “performance” was deficient in any substantial way that would justify his termination for cause. Rather as the board president indicated, it was a mutually agreed amicable termination. Indeed, Ms. Stoner-Harris states that she “Could see Lawrence being a great superintendent somewhere.”

Ms. Stoner-Harris' statement gives credence to Dr. Taylor’s comment that the termination came about because Dr. Lawrence did not see “eye to eye” with a majority of the Board members.

I think that my friend, and the school district's voters are entitled to know wherein the board and Dr. Lawrence did not see eye to eye. That is a matter of policy, and not within any exception to the Open Meetings Act. The voters are entitled to know where the board members stand on “policies” affecting the students of the district.

If issues of policy were in fact involved, it is difficult to see how, if a straight-forward joint statement was made setting out the differences between the Board Majority and Dr. Lawrence, “the public interest would be clearly endangered or the personal privacy or guaranteed fights of individuals would be clearly in danger of invasion.”

First Published in the Moline Dispatch and Rock Island Argus on May 7, 2023. 

Copyright 2023, John Donald O'Shea

Failure to recuse in eyes of reasonable public

On April 18, 2023, The Dispatch ran a front-page story: “New justices won’t recuse themselves” (in a case challenging the state’s recently passed ban on assault weapons and high- capacity magazines).

The Justices involved are both Democrats: Mary Kay O’Brien and Elizabeth Rochford. (I have never met either).

The motion asking them to recuse themselves, or requiring that they be disqualified from hearing the case, alleges that during their 2022 campaigns for election to the Illinois Supreme Court, both newly elected justices received substantial “campaign donations” from Illinois Governor JB Pritzker and Speaker of the Illinois House Emanuel ‘Chris” Welch — both Democrats —both of whom are named in the suit as defendants (in their official capacities).

While they were candidates, both judges received:

$500,000 from the ‘J.B’ for Governor campaign; and
$500,000 from the Jay Robert Pritzker Revocable Trust;

In addition, Justice O’Brien received $350,000, and Justice Rockford received $150,000 from the Welch Campaign Committee.

(Both received endorsements from two prominent gun-control lobby groups: The Gun Violence Prevention PAC, and The Gifford PAC. Because of word limitations, this op ed won’t address the problems, if any, that such endorsements might pose).

So, why would anybody donate $1 million to get a judge elected. I can only think of two reasons:

1. The candidate will be a brilliant, hard-working, impartial, independent judge, brimming with integrity. 

 

2. The donors believe that the judge, once elected, will be grateful, loyal, and inclined to repay “the favors.”

For purposes of this op ed, I am assuming here that both judges are “brimming with integrity, etc.”

But what does it look like to the public when a judge hears a case when a defendant in the case — the governor of Illinois — has just given the judge $1,000,000?

Does it appear any better because JB Pritzker is being sued only as governor, and not personally?

Does judging a case, after taking a $1,000,000 donation from one of the parties, “promote public confidence in the independence, integrity, and impartiality of the judiciary?”

Judges are mandated to “avoid impropriety and the appearance of impropriety.

Even if the judge is “brimming with integrity, etc.,” doesn’t it look improper for that judge to sit on a case where a litigant contributed $1 million to secure the judge’s election?


The first and most important rule governing the conduct of judges is this:

“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.”

In Illinois, once a person becomes a judge, the rules are strict. A judge shall not accept any gifts, … benefits, favors, or other things of value, except as follows:

(1) Items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; ….
(10) Gifts, loans, bequests, benefits, favors, or other things of value, only if the donor is not … likely to come before the judge ….

Is a $1,000,000 campaign contribution of little intrinsic value?


But can a candidate for judicial office accept any gifts, … benefits, favors, or other things of value? No and yes.

No, because a judicial candidate shall not personally solicit or accept campaign contributions.

Additionally, the candidate shall prohibit employees … from doing on the candidate’s behalf what the candidate is prohibited from doing under the provisions of this rule.

Yes, because a judicial candidate subject to public election may establish a campaign committee.

“A judicial candidate subject to public election shall direct the campaign committee: (1) to solicit and accept campaign contributions only as permitted by law;

The comments to these rules are explanatory.

“Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. … This rule recognizes that, in many jurisdictions, judicial candidates must raise campaign funds to support their candidacies and permits candidates … to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.

 

“During the campaign, the candidate and the campaign committee should be aware that a contribution may affect the independence, integrity, and impartiality of the judge and may create grounds for disqualification if the candidate is elected to office.”

Were I on the Judicial Inquiry Board — and I am not — I would read the preceding paragraph in conjunction with the first rule of Judicial Conduct (set out above).

“A judge must not take any campaign contribution that creates, in the eyes of reasonable members of the public, any “appearance of impropriety.”

And I would further read it to say that, 

”In any case coming before the judge, where one of the judge’s campaign contributors is a party, and where in the eyes of reasonable members of the public there would be an appearance of impropriety, to preserve the public trust in the impartiality of the judiciary, all doubts must be resolved in favor of recusal.”

Recusal here would leave the Supreme Court two short of its full seven judges. But the court has power to appoint two judges to fill those temporary vacancies.


There are plenty of judges — currently sitting or retired — who could be appointed to fill the two temporary vacancies to hear the case. Judges who would not carry with them the “appearance of impropriety.” This would promote public confidence.


By failing to recuse, Justices O’Brien and Rockford, put themselves and perhaps the entire Illinois Judiciary into a “no-win situation.” If they rule for the defendants, they will look like “the best judges money can buy” — even if their decision is impeccably correct. They cannot rule for the defendant without creating an “appearance of impropriety” or worse, a stench of corruption.

First Published in the Moline Dispatch and Rock Island Argus on April 30, 2023. 

Copyright 2023, John Donald O'Shea

Ideas should win or lose in “The marketplace of ideas.”

I have recently written and published two op eds questioning the wisdom of spending $400,000,000 to create high-speed rail service between Chicago and Moline (or Davenport or Iowa City).

My goal, as an opinion writer, is to take a position that forces my readers to think the issue through. I make every effort to take, what I believe to be, the sound position. I feel I have achieved my goal when my opinions provoke strong responses — expressing supporting and contrary opinions. As I have stated frequently, I believe the best ideas ultimately prevail in the “marketplace of ideas.” That is why I have no use for people and governments who would suppress opposition speech.

In response to my two Amtrak op eds, I have received two letters. The first utterly disagrees with me. The second, thanks me. I set both out in full below. You judge which one makes more sense — when you are being asked to expend 400 million taxpayer dollars. I have no recollection of ever having met or spoken to either man.

The first letter came in the form of a Letter to the Editor, from Tom Walsh of LeClaire:

“The Times recently printed former Judge O’Shea’s opinion that rather than expand Amtrak to Moline, his “best guess” is that Amtrak advocates should instead buy toy trains. That supercilious conclusion is followed by a litany of unanswered questions. Allow me.

“Cost of train vs. Airfare? Flying to Chicago coast $225 — $450. (Booking.com) vs. $16 — $26 for the Princeton — Chicago train, which extrapolates to $24 — $40 for Moline — Chicago.

“How many people would use Amtrak? A “best guess” is that people now squeezed into airplanes would gladly choose Amtrack comfort — and security — at one-tenth the cost.

“Additional travel costs getting to one’s ultimate destination, by taxi or Uber? Chicago has an excellent public transportation system for commuter and tourists alike, linked to O’Hare. By remarkable coincidence, many commuter trains operate from Union Station, just like Amtrak does. Who would have thought?

“Travelers headed to the Loop can walk. No need for Uber, your honor.

“Subsequently, O’Shea tried to justify his foregone conclusion with an article focused on Amtrak’s recent operating losses, which were magnified by COVID. He implies that Amtrak’s profitable Northeast Corridor is an anomaly. Instead, it is a model to be replicated — an efficient, environmentally superior system, unfettered by slow-moving freight trains.

"O’Shea questions whether Amtrak can recoup the $400,000,000 in track upgrades. Curiously, he omitted such analysis of another $1,200,000,000 infrastructure upgrade — the I-74 bridge.

“Thankfully, O’Shea merely fulminates here, no longer dispensing his foregone conclusions and double standards from the bench.”

The second comes from Ron Moore:

“I recently read your column titled “From Moline to Chicago: By Amtrak? Or by limousine?” and would like to share the service my company already offers.

“I own Burlington Trailways and we are a motorcoach company that is appropriately licensed, insured, and compliant with FMCSA regulations.

“I have owned the company since 1981 and currently run three motorcoaches from Davenport, Iowa, to Chicago, Illinois, every day. A passenger can take our motorcoach from Moline, Illinois, to Davenport, Iowa, to catch these schedules.

“Our motorcoaches are 45’ (long) vehicles with seating capacity for 54 passengers. Each motorcoach is also wheelchair lift equipped and can accommodate two wheelchairs onboard. There is a restroom onboard and plenty of storage underneath the cabin for luggage.

“Tickets for these schedules can be conveniently purchased from www.trailways.com or in-person at the Davenport or Moline depots.

“I am happy to answer any questions or provide more information if you desire. Thank you for bringing attention to transportation in the area!“

The essential question is how many people will “commute” on a daily basis between Chicago and Moline (or beyond) using Amtrak? 100? 200? 1,000? (It is the “commuters” who make the NE Corridor profitable).

It is suggested that since $1.2B was spent to build the new I-74 bridge, that spending a mere $400M on high-speed rail, is money well-spent. But more than 80,000 vehicles cross the I-74 bridge daily — 29.2 million yearly! Even were Amtrack to carry 1,000 per day, that’s 1/80th of what the bridge carries. So, which is the better bargain?

It is opined is that most “commuters” who now fly, will switch to Amtrak. How many “air commuters” are there?

It is easy to spend money when it isn’t yours — especially when the government spreads it around like manure. But if the $400M must be spent, is spending it on high-speed rail the best transportation option?

Can anybody point to a single Amtrak route outside the “NE Corridor” that has ever turned a profit? If not, then, in addition to the $400M “start-up costs,” expect additional substantial annual losses. Just look at any Amtrak P & L.

The new Amtrak cars look terrific. They should for $400M! But how much of a subsidy would it take to allow the extant limo or motor coach (bus) services operating between Chicago and Moline to up-grade their equipment? If it were to take $4M a year, they could operate for 100 years on $400M. And busses and limos run on roads and bridges that already exist. And if they ran at annual losses, they’d be out of business.

First Published in the Moline Dispatch and Rock Island Argus on April 23, 2023. 

Copyright 2023, John Donald O'Shea

Rock Island County Courthouse, R.I.P. (1895 — 2023)

As I write, the Rock Island County Courthouse, built in 1895, is being demolished. The building “died” at the age of 128 years. The cause of death was obsolescence, aggravated by the neglect of the county’s voters.

When I first came to Rock Island, in September of 1966, the courthouse was already a victim of voter neglect. A post card, in the collection of the Rock Island Preservation Society shows the courthouse with at least six beautiful domes and a copper roof. By the time I first set foot in Rock Island County, that copper roof and all six domes were long-gone. The spectacular main dome had been replaced by an ugly box covering the air conditioning unit.

But it is really not fair to blithely blame the voters. By the building’s 35th birthday, America was in the throes of the Great Depression. Most voters could barely support their own families; they didn’t have an extra dime for courthouse repairs and maintenance. And that Great Depression dragged on for a decade — and for many folks, until the end of World War II in 1945. Even after the war had ended, there were still people living on the Rock Island City Dump, feeding their families on the garbage discarded by others.

I can still remember my first full day in Rock Island County. Before my job interview with the then State’s Attorney Richard Stengel, I walked over to the federal courthouse to see if I might also interview with the U.S. Attorney. What I remember clearly from that morning, was how forbidding the Federal Courthouse seemed with all its office doors shut, and how friendly the Rock Island County Courthouse seemed with all its doors wide open.

After that interview and job offer, Dick Stengel took me on a tour of the courthouse. Over the years, I explored it myself when I had free time. When I explored the basement, it was like going down into a coal mine. By that time, the tunnel under 15th Street, from the old jail to the courthouse, originally constructed to allow the sheriff to safely convey prisoners to court, had been converted into a tunnel to accommodate the pipes that provided heat to the courthouse.

On the first floor was a large unattractive men’s room, a small unattractive sheriff’s office, and a very plain probate court and probate chambers. They had all the charm of an old bowling alley. There was also an ancient, tiny elevator.

The recorder of deeds office sat at the south end of the 2nd floor. An old, utterly unattractive county court occupied the north end. In the middle front, was the small, plain, cluttered clerk’s office.

The third floor had already been “remodeled.” The old two-story circuit courtroom, had been “remodeled” out of existence. It was replaced by a new courtroom with a jury box, a hearing room and three judges’ chambers in back. Above, a law library was created. None of the changes were in keeping with the design of the courthouse as originally constructed, or worthy, in the least, of historical preservation.

By the time I retired in 2000, the only portion of the building that bore any similarity to the original design, was the exterior brick work. In the interior, even the great double staircase had been halved — to allow for installation of a modern elevator. I can still recall our female court reporters complaining about the women’s facilities. Even the circuit clerk’s office, which when I arrived in 1966 had been so open and friendly, had been chopped up into a warren of cubicles.

Of course, like any building, the courthouse could have been restored to its original condition.

If that would have been a wise expenditure of money, a private investor would have bought the building and undertaken that restoration. The fact that the cost of restoration made the project unfeasible for a private investor, rather clearly demonstrates that it would have been a waste of taxpayer dollars.

I’m a guy that loves old buildings. While on the bench, while assigned to Mercer, Henry and Whiteside counties, I explored all the old courthouses. In Whiteside County, I walked across the boards laying atop the rafter above the old circuit courtroom, and upstairs explored the rooms where the judge and jurors slept over when the cases continued into the next day.

Of the four courthouses, I explored, during my years on the bench, only one — The Henry County Courthouse — was worth saving. To this day, it remains an architectural masterpiece and thing of beauty. The people of Henry County deserve high praise for their preservation of it.

First Published in the Moline Dispatch and Rock Island Argus on April 16, 2023. 

Copyright 2023, John Donald O'Shea

Plan to use high-potency marijuana? Buyer Beware!

On March 27, 2023, five members of the Moline City Council voted to approve Moline’s second marijuana dispensary. Two Aldermen, Mike Waldron and Scott Williams, voted “NO.” Waldron quoted as saying, “I don’t believe we need one; we certainly don’t need two!” Those who voted affirmatively, justified their votes saying, that they “appreciated the extra tax revenue.” (3% of revenues will go into the city’s general fund.)

While use and possession still remains illegal under federal law, as of September 2022, 37 states and the District of Columbia allow the medical use of marijuana; 19 states and the DC have legalized recreational use.

But whether the use of marijuana is legal or not in Moline, or whether Moline will receive extra tax dollars, really misses the point.

In a long article in the Frontiers of Psychiatry, dated Jan. 5, captured U.S. trends in the association of suicide ideation/behaviors with marijuana use among adolescents ages 12–17 and differences by gender and race/ethnicity, by Flores, Granados and Lê Cook, issues of far greater consequence are discussed.

Their paper is written against this background: “In the U.S. over the past decade, there has been a steady increase in marijuana use rates among adolescents, in part due to marijuana legalization laws. It is unknown whether these greater marijuana use rates are associated with rising rates of adolescent suicide ideation and behaviors (plan and attempt) or whether these associations differ by gender or race/ethnicity.”

The object of their study was “To determine whether marijuana use is associated with suicide ideation/behaviors among adolescents and if differences exist by gender and race/ethnicity.”

The discussion and conclusions of the paper strongly suggest great caution is in order.

“Using nationally representative data, our findings demonstrated that past-year marijuana use is a significant risk factor for suicide ideation/behavior among adolescents.

“This finding was consistent among males and females, as well as adolescents identifying as white, Black, Latinx, and NA/AN.

“We also found that rates of suicide ideation/behavior increased as the frequency (number of days) of marijuana use increased.

"While prior literature has found gender, race/ethnicity, and marijuana use to be independent factors associated with suicide ideation/behavior among adolescents, our study is one of the first to use a nationally representative sample of adolescents to examine associations between suicide ideation/behavior and marijuana use and how these associations differ by gender and race/ethnicity.

"Marijuana use, which we found to be associated with higher rates of suicide ideation/behavior, is influenced by a multitude of factors, including supply side factors such as availability, price and potency. Marijuana has become more widely available via recreational use legislation.

“Increased marijuana availability may result in adolescents initiating or increasing their recreational use.

"In an analysis of a national, annually administrated cross-sectional survey, “Cerda and (his) colleagues found marijuana prevalence rates among eighth and 10th graders in the state of Washington increased when comparing marijuana use rates before and after legalization.

“The state (Washington) saw an increase in the prevalence of habitual marijuana users and a decrease in the prevalence of non-users.

“With legalization, the stigma of marijuana use may dissipate and elevate the social acceptability, which can lower the perceived risks associated with marijuana use.

“As such, adolescents living in states with legalized recreational marijuana legislation for adults may initiate or increase their use without fully considering consequences (e.g., elevated risk of psychosis and impacts of brain development associated with adolescent marijuana use).

“The decreasing price of marijuana may also contribute to increasing use among adolescents and help to further explain our research findings.

“As markets, both legal and illegal, compete for customers, there has been a proliferation of potent marijuana products, which may have severe consequences for adolescents.

“The levels of 19-tetrahydrocannabinol (THC), the content that gives marijuana its euphoric effects, have significantly increased over the past several decades.

“THC is associated with acute increases in heart rate, various types of arrhythmias, coronary vasospasm, and acute myocardial infarction.

“As marijuana potency has increased, there may be a parallel escalation in mental health-related events. Work by Di Forti and (his) colleagues found daily adult (18–64) use of high potency marijuana, defined as THC 10% or greater, was associated with five-times the odds of having a psychotic disorder, relative to no use.

"Researchers determined that eliminating high potency marijuana would contribute to a 12% decrease in the number of first-episode psychosis cases. This is of critical importance as psychosis is a predictor of suicidal behavior.

“A systematic review and meta-analysis of 10 general population cohort studies found individuals with a psychotic experience had higher odds of suicidal ideation, plan, attempt, and suicidal death.

While not yet conclusive, the studies to date clearly suggest that daily adult use of high potency marijuana increases fivefold the chances of having a psychotic disorder, and that psychosis is a predictor of suicidal behavior.

First Published in the Moline Dispatch and Rock Island Argus on April 2, 2023. 

Copyright 2023, John Donald O'Shea