Spring 2019 C-K Law Group Newsletter
LAW OFFICES NEWS
C-K Law Group Welcomed First-Year Students This Semester!
In the spring 2019 semester, Chicago-Kent College of Law became one of the nation’s few law schools to admit first-year students as full-fledged clinic members.
After experimenting for the past two years with a limited form of clinic exposure for first-year students, the C-K Law Group now gives first-year students the opportunity to participate fully in our clinic sections, including Criminal Defense, Tax Law, Entrepreneurial Law, Family Law, Plaintiff’s Employment Law, Civil Litigation, Mediation, Open Government, Vaccine Injury Litigation, and Intellectual Property. Like upper-level students, first-year students engage with our clients, prepare pleadings and briefs, and strategize approaches to our legal matters. This spring, 48 first-year students opted to participate in clinic.
By all accounts, the experiment has been a huge success and will become a permanent part of Chicago-Kent’s offerings. First-year students may choose between selecting one clinic section for the entire semester or rotating between two sections as they try to determine which areas of practice interest them the most. Says Clinical Professor Richard Kling, who runs the Criminal Defense Litigation Clinic, “Anything the first-years lack in coursework, they more than make up for in enthusiasm and dedication. I am delighted to have them!”
First-year student Charles Gandelman, who enrolled in the Plaintiff’s Employment Law Clinic, adds, “The first-year clinic has been invaluable. Giving us hands-on experience with actual cases and clients, the clinics bridge the gap between the classroom and the profession we seek to enter. The clinics also provide a fantastic opportunity for first-year students to sharpen our budding analytic and technical skills.”
Why I Love My Job
By Clinical Professor Jonathan Decatorsmith
As a failed musician and performer, I thought it made a lot of sense for me to seek professional gratification as a teacher, since it combined so many of the elements of playing music live. Rehearsal, improvisation, and combined collective energy and rhythm to achieve new insights are all aspects of this work that parallel my former life. Only I think teaching is a little better suited to my own personal characteristics and still-developing skill set.
I remember telling former clinic director Gary Laser when he hired me 19 years ago that this was my dream job—practicing law and teaching. And 19 years later, it’s only better than I imagined. My students keep me motivated and creative, and our clients indulge my inherent need to seek justice on behalf of those who have found themselves entangled in the Kafka-like IRS bureaucracy. And most important, I have been lucky enough to find two incredible attorneys to share this journey, and I am blessed to have myself surrounded with colleagues and mentors that make coming to school every day a lot better than really working for a living.
Some Reflections on the Jason Van Dyke Trial
By Clinical Professor Richard Kling
Jason Van Dyke, a former Chicago police officer, was initially charged with first-degree murder and aggravated battery for shooting and killing 17-year-old Laquan McDonald on the streets of Chicago in 2014. A jury, in October 2018, convicted Van Dyke of second-degree murder (using excessive force to defend oneself) and 16 counts of aggravated battery. Although there is a public misperception that second-degree murder is a lesser-included offense than first-degree murder, second-degree murder is not a lesser-included offense of first-degree murder. In fact, as a result of changes in the statute a number of years ago, to be found guilty of second-degree murder the trier of fact (judge or jury) must first find the defendant guilty of first-degree murder and then decide whether either of two mitigating factors (excessive force to defend oneself or heat of passion killing) exists. The burden of proving the existence of the mitigating factor is on the defendant, although if the defendant introduces evidence of the mitigating factor, the state then has the burden of proving beyond a reasonable doubt that the mitigating factor didn’t exist. So the bottom line is that second-degree murder is first-degree plus a mitigating factor.
The problem at hand: Although Van Dyke was found guilty of second-degree murder and 16 counts of aggravated battery, and although the judge found that second-degree murder was the more serious offense upon which he sentenced Van Dyke, the statutory sentencing structure in Illinois appears to make aggravated battery a more serious offense than second-degree murder. Why? Because the penalty for second-degree murder is anywhere from 4 to 20 years in the penitentiary, and the offense is even probationable. The penalty for aggravated battery is a mandatory six to 30 years in the penitentiary; it is not probationable. Thus, if it is the length of the sentence that determines the seriousness of the offense, the sentence for aggravated battery is more severe than for second-degree murder, which would make aggravated battery the more serious offense.
The attorney general and the writ of mandamus: The Illinois Supreme Court may issue a writ of mandamus under one of two circumstances: if a public official (such as a judge) refuses to do something that that official is required to do, or if a public official does something that that official is absolutely barred from doing. The principle is that if the public official refuses to follow the law that requires them to do something or bars them from doing something, the Illinois Supreme Court can order them to do what they’re supposed to be doing.
The Illinois attorney general has taken the position that the trial judge was barred from sentencing Van Dyke under the less serious charge (second-degree murder) since Illinois has existing case law that requires the court, under those circumstances, to sentence for the more serious charge. Thus, if the attorney general is correct in his assessment that aggravated battery was the more serious charge, and that the trial judge was barred by law from sentencing Van Dyke on the less serious charge, the Illinois Supreme Court will probably remand the case to the trial court for resentencing on aggravated battery.
A couple of other observations: First, the sentencing provisions of Illinois give one-day good-time credit for every day in custody for second-degree murder. That is, a defendant sentenced to the penitentiary must serve only half of his actual jail sentence since he gets what is called “day for day good time.” That is the reason that even though Van Dyke received more than seven years as a sentence, he would have to serve only one-half of those seven years. The good-time provisions for aggravated battery, however, require a defendant sentenced to the penitentiary to serve 85 percent of his actual sentence. So if the Illinois Supreme Court remands the case for resentencing on aggravated battery, and even if the judge gave Van Dyke the absolute minimum sentence of six years in the penitentiary, because of the 85 percent provision he would serve more actual time then on the sentence for second-degree murder.
A final area of possible controversy is whether the defendant must be sentenced on each of the 16 aggravated battery counts, and whether or not those counts must be served consecutive to one another (that is 16 six-year terms), or concurrently. Even though there were 16 separate shots fired, there is a good argument based on Illinois case law that there was really only one offense committed. The principle is called “one act or one offense” equals one crime. If that principle is followed, all of the separate counts will “merge” into one another and the defendant will receive one sentence.
So the final takeaway questions:
Will the Illinois Supreme Court remand the case to the trial judge for resentencing?
If so, will the defendant be sentenced on only one count of the aggravated battery?
And what will the sentence be?
At the time this article was written, the Illinois Supreme Court had not yet ruled. Subsequently they denied issuance of the mandamus order and allowed the sentence on second-degree murder imposed by the trial judge to stand. That's all folks!
Meet C-K Law Group’s Ni, Sha
I have been a staff attorney with the Tax Clinic since it transformed from a free practice for indigent taxpayers into the current fee-based firm in 2012. I enjoy working with the clinic's supervising attorney, Clinical Professor Jonathan Decatorsmith, who has been a great mentor of mine over the years that I have been working at the clinic.
The combination of being a progressive tax law firm and an educational clinic makes the Chicago-Kent Tax Clinic an exciting and dynamic place to work. I am responsible for most of the IRS collection work and tax return preparation work, and I assist Clinical Professor Decatorsmith with servicing clients and mentoring enrolled students. Prior to my employment, I was an intern in the Tax Clinic while pursuing my LL.M. degree at Chicago-Kent. Prior to that, I was a lawyer and partner for 12 years in Beijing, China, where I primarily practiced in the area of real estate transactions and client development.
In my free time, I enjoy living close to the lake in Evanston, watercolor painting, and traveling. I am the proud parent of a junior at the University of Illinois at Urbana-Champaign.
Ni, Sha, Esq.
Q&A with C-K Law Group’s Eileen Casey
In addition to her superb work as assistant to clinical professors Richard Kling and Richard Gonzalez, C-K Law Group’s Eileen Casey is an accomplished performer. Here she answers a few questions about both of her careers.
Q: In addition to your legal work, you have had a great deal of experience as a performer. Can you tell us about some of your theatrical experiences?
A: Starting in kids and teen theater, I played Dorothy in the Wizard of Oz, Maria in the Sound of Music, Anna in the King & I, Nellie in South Pacific, Marian in the Music Man, and many other classic roles. Adult years, I played the title character in Evita, Anita in West Side Story, Kathy Selden in Singin’ in the Rain, Reno Sweeney in Anything Goes, Fiona in Brigadoon, just to name a few, and Judas in a very non-traditional production of Jesus Christ Superstar. I majored in musical theater in undergrad, minored in English. Professionally, I worked at Court Theater, Pheasant Run, Night Blue at Stage 773, and dinner theaters in the rural Midwest, and I did a six-month tour of six countries in central Europe in a rock-musical version of the opera Carmen. Recently, I played the Witch in Into the Woods and the Doctor in Agnes of God. I’ve directed, produced, choreographed, been dialect coach, done props, costumes, makeup, and been on the boards of directors for several theater companies and was president of the Beverly Hills University Club Scholarship Foundation (a group that didn’t allow women to be members for the first 60 years of its existence), which raised scholarship money through theatrical productions.
Q: What do you like about working in a law school clinic setting, as opposed to a law firm?
A: I like working with the students. The energy and activities in a clinic setting are always changing and evolving, so it’s rarely boring.
Q: What have been the biggest changes you have seen in your career in law?
A: The first law firm I worked at, there was only one computer and it had WordPerfect DOS 5.1. The second law firm I worked at had only one computer with internet, and it was the slowest dial-up ever. Phone coverage majorly lightened up once all employees had email. Definitely the dress code has relaxed much over the years. When I first started working in offices, all men wore suits, and all women wore skirt suits or dressy dresses. Women wore heels and pantyhose, which I definitely don’t miss!
Q: What would be your dream role on Broadway or in a movie?
A: I have a lot of things on my plate right now, but years down the road, I look forward to playing great “old lady” roles such as Dolly, Mame, Mama Rose, Golde, and Yente.