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Chicago Judge Lambastes Sidley Lawyers Over Brief
The National Law Journal
November 11, 2009
A court hearing on Tuesday in Chicago at which former Northwestern University journalism students planned to fight a subpoena for their records and grades turned into a judicial lambasting of their Sidley Austin lawyers.
It started when Judge Diane Gordon Cannon of the Cook County Circuit Court called the lawyers, partner Richard O'Brien and associate Linda Friedlieb, to the bench before prosecutors from the Cook County State's Attorney's Office had even arrived. She asked who had written the brief she was holding. O'Brien and Friedlieb responded that they had submitted the reply supporting the motion to quash the subpoena.
The subpoena seeks notes, reports and videos from onetime Northwestern journalism students who investigated the case of Illinois state inmate Anthony McKinney, convicted of murder in 1978, and uncovered evidence that could overturn the trial verdict. The Tuesday hearing was scheduled for oral arguments on the motion to quash the subpoena, which also seeks course instructions and the students' grades from Northwestern professor David Protess, who runs the course as part of the Medill Innocence Project. Protess and his former students are fighting the subpoena under the Illinois Reporter's Privilege Act.
Assistant State's Attorney Celeste Stack arrived a half-hour late to the hearing, citing "computer issues," and then offered up a supplemental response against the motion to quash. Prosecutors contend in the 30-page response that the students paid a witness for a statement saying McKinney wasn't at the crime scene. O'Brien told the judge that he couldn't reply on such short notice, scoffing that such "an important issue" deserves "an opportunity to be fully briefed" by both sides.
Cannon, who was a state prosecutor before being elected a judge in 1996, turned on O'Brien, saying the case was "no laughing matter" and castigating him for submitting a brief that, she said, didn't include attorney names and was "dripping with sarcasm." "It is reprehensible," a steaming Cannon said, calling the Oct. 5 brief an editorial not fit for court.
The judge said an imprisoned pro se litigant had submitted a more appropriate brief in another case earlier that day and added that Karen Daniel, a Northwestern University School of Law professor who represents McKinney, had never submitted such a brief. O'Brien had difficulty interrupting her to call attention to the attorney names on the last page with Friedlieb's signature.
"You have to put your name on it as an officer of the court," Cannon said, explaining that the brief must start with "now comes petitioner" so-and-so. When O'Brien tried to speak, Cannon cut him off and told him to put his response in writing. Another hearing was scheduled for January.
Following the hearing, O'Brien, who specializes in media and intellectual property law, said that the brief was similar to thousands he has filed over his 30-year career, adding, "We stand by our advocacy." He had never come before Cannon in the past. Daniel declined comment as did Sally Daly, a spokeswoman for the state's attorney's office.
"I'm very sorry. I apologized to the judge," O'Brien said at a later press conference. "I'm sure I can work with Judge Cannon."
