Tuesday, May 20, 2008
Law Bulletin
by Stephanie Potter

Facing removal from office, Cook County Public Defender Edwin A. Burnette is urging that a Cook County Board hearing Tuesday to decide his fate be open to the press and public.

''The discharge of the Public Defender — a public officer in charge of the cases of 100,000 or more indigent criminal defendants and juveniles — affects the fate of the criminal justice system, the families embroiled in it, and the community at large,'' Burnette said in a news release. ''It's a momentous decision that deserves a public hearing, and the media should be invited to report on the proceedings.''

Burnette is facing ouster by Cook County Board President Todd H. Stroger.

Burnette contends the effort to fire him is retaliation for a lawsuit Burnette filed against Stroger accusing him of illegally interfering in the running of the office.

Stroger spokesman Eugene Mullins said Thursday that he could not comment on the matter while the hearing was pending.

Burnette's attorney, Paul W. Mollica, said a motion is pending before the board that would close the hearing to the public under the Illinois Open Meetings Act. That law allows the closure of meetings involving the discipline or firing of employees. But Mollica said that law is meant to protect the privacy of employees, and Burnette has no such concerns.

Mollica also takes issue with Stroger attorney Burton S. Odelson's determination that there will be no vote by the board at the conclusion of Tuesday's hearing. Mollica said that procedure disregards the wording of the county board's resolution calling for a hearing on Burnette's job performance.

''There's no due process in this at all,'' said Mollica.

In April, a majority of the board's 17 commissioners signed their names to the resolution calling for a hearing on Burnette.

The resolution blames Burnette for several problems in the Cook County justice system, citing studies that found assistant public defenders were leaving work early and that 34 inmates had been awaiting trial for more than five years.

Mollica said there are good reasons why complicated cases can take years to go to trial. Burnette has said the studies cited in the resolution are several years old and has denied any wrongdoing.

Odelson said the decision whether to fire Burnette ultimately rests solely with Stroger. The plain language of the statute allowing removal does not call for a board vote, nor does the State's Attorney's Office interpret it to be required, he said.

''The statute says you have a hearing; that is all the power [the board] has,'' Odelson said.

The relevant portion of the statute reads: ''The Public Defender once approved by the Board shall serve for 6 years and may be removed by the [County Board] President only for good cause or dereliction of duty after notice and a hearing before the Board.'' 55 ILCS 5/3-4004.2(c).

Odelson said Stroger will not preside over the hearing, and the question of whether it will be open to the public is up to the county board. But Stroger will consider evidence from the hearing in making his determination of whether to fire Burnette, Odelson said.

''He will not be deciding right away,'' Odelson said.

Mollica said the public and defendants would be better served if Burnette is allowed to finish his six-year term, which will expire in April.

On Thursday, Burnette released a list of witnesses he plans to call at the hearing.

They include both Stroger and himself, as well as Cook County State's Attorney Richard A. Devine and two of Burnette's predecessors as public defender, Rita Aliese Fry and Randolph N. Stone. Stone is now a law professor at the University of Chicago Law School; Fry runs a consulting business.

Mollica said the former public defenders are expected to testify about the history of how jobs are filled in the office, as well as to contradict what Mollica deemed misstatements in the resolution calling for a hearing.

Also on the witness list is Richard Velazquez, an attorney who serves as counsel to Stroger. For a time, Velazquez was on Burnette's payroll, although Mollica said he apparently did no work for the public defender's office.