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FIL AM JUDGE HAS UNTIL MAY 21ST TO FILE HER POST-TRIAL MOTIONS

 

By JOSEPH G. LARIOSA
(© 2018 Journal GlobaLinks)

CHICAGO (JGL) – The Illinois Supreme Court had suspended Filipino American Cook County Circuit Judge Jessica Arong O'Brien on Thursday (April 26th) from practicing “law effective immediately and until further order of the Court, and this matter is hereby referred to the Judicial Inquiry Board."

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JUDGE JESSICA ARONG O'BRIEN

The decision came down after the Illinois Attorney Registration & Disciplinary (ARDC), an administrative body created by the Illinois Supreme Court to regulate the practice of the law profession, sought her suspension from the practice of law and her removal from the bench of the Cook County Circuit Court.

The ARDC's “Petition for interim suspension pursuant to Supreme Court rule 774(a)(1)” and to “enjoin her from continuing to hold the office of the judge” filed by ARDC Administrator Jerome Larkin on Feb. 23, 2018 was filed after a jury returned a verdict last Feb. 15, 2018 finding Ms. O'Brien guilty of mail fraud and bank fraud involving $1.4-M mortgage scheme.

A copy of the Illinois Supreme Court decision provided by James J. Grogan, Deputy Administrator and Chief Counsel of ARDC, to this reporter showed that six of the seven members of the Illinois Supreme Court, including Chief Justice Lloyd A. Karmeier, took part in the deliberation and entered the following judgment: “The rule to show cause issued to respondent Jessica Arong O'Brien pursuant to Supreme Court Rule 774 on Feb. 27, 2018, is enforced in part. Respondent is suspended from the practice of law effective immediately and until further order of the Court, and this matter is hereby referred to the Judicial Inquiry Board.”

Justice Thomas Kilbride took no part on the decision.

REFLECTED ADVERSELY UPON HER FITNESS

In his petition, Mr. Larkin asked the Supreme Court to suspend the practice of law and removal of Ms. O'Brien from the bench after being found guilty of mail fraud and bank fraud following a
jury trial before Judge Thomas M. Durkin of the Northern District Court of Illinois in Chicago last Feb. 15.

In his petition, Mr. Larkin said that when Ms. O'Brien, 50, a native Cebu City in the Philippines, was found guilty of mail fraud and bank fraud by the jury, it reflected “adversely upon her fitness to practice law and constitute as a persuasive evidence that she was, in fact, guilty of that conduct.”

Larkin cited the court records among others that Ms. O'Brien “falsely claimed that her monthly income from Illinois Department of Revenue was $6,800. [A]lthough she did not disclose all of her liabilities, including a $260,000 mortgage obligation, she affirmed that the information she submitted to the lender was truthful and accurate, although she knew that it was not.”

In seeking her suspension from the practice of law, Larkin said Ms. O'Brien has been formally charged and found guilty of the federal offenses of mail fraud and bank fraud, crimes which involve moral turpitude and reflect adversely upon her fitness to practice law.

ANYTHING CALCULATED TO DECEIVE

This Court had defined fraud as “anything calculated to deceive.” “Moral turpitude” is anything which an attorney does knowingly and which is contrary to justice, honesty and good morals.”

In her defense, the lawyers for Ms. O'Brien said Mr. Larkin's petition to suspend her is unnecessary, saying the Illinois Constitution already prohibits Ms. O'Brien from the practice of law when she became a judge. “As a result, the relief the Administrator requests under Rule 774(a)(1) would have no effect.”
Her lawyers lead by Thomas P. McGarry of Hinshaw & Culbertson, LLP, also argued that the Illinois Supreme Court “lacks the power to enjoin a sitting judge from office. While this Court has authority to discipline an attorney from the practice of law, Art. VI, Sec. 15 of the Illinois Constitution vests
the sole authority for investigation and discipline of a judge with the Judicial Inquiry Board and the Illinois Courts Commission. (IL Const. 1970, Art. VI, Sec. 15.)

“By accepting the Administrator’s argument, this Court would be claiming shared power to
discipline a judge with the Courts Commission — a power the 1970 Constitutional Convention explicitly declined to give to this Court.”

SHOULD BE AFFORDED PROCESS RIGHTS

In seeking to stop her removal from the bench, Ms. O'Brien's lawyers told the Illinois Supreme Court that she should “be afforded the opportunity to exhaust her process rights. Though, she has been found guilty by a jury, she has not been convicted of the crimes with which she has been charged. The federal court proceedings have not yet concluded. Ms. O'Brien still has the opportunity to be acquitted.

This Court should not make a ruling related to Respondent’s law license or her ability to hold the office prior to the District Court’s final determination.”

Her lawyers claimed that Ms. O'Brien “does not contest that she has been formally charged with the
commission of moral turpitude or that under the Rule, the Administrator has submitted evidence supporting the criminal charges via the jury’s verdict. This Court should deny the Administrator’s
request. However, because the Administrator cannot establish that the criminal charges against Ms. O'Brien reflect adversely upon her fitness to practice law. As a judge, the Illinois Constitution already prohibits her from practicing law.”

They cited “Art. VI, Sec. 13 of the Illinois Constitution [which] establishes prohibited activities for Illinois Judges. It states as follows: “Judges and Associate Judges shall devote full time to judicial
duties. They shall not practice law, hold a position to profit, hold office under the U.S. or this State or unit of local government or school district or in a political party.

“Service in the State militia or armed forces of the US for periods of time permitted by rule of the Supreme Court shall not disqualify a person from serving as a Judge or Associate Judge.”

COURTS COMMISSION, NOT SUPREME COURT

The lawyers added, “The Constitution provides the process for disciplining judges in Art. IV, Sec. 15. IL Const. 1970, Art. VI, Sec. 15 [which] creates the Judicial Inquiry Board and the Courts Commission.

“The Board is given the power to investigate conduct of Judges and Associate Judges and the power to file complaints against Judges and Associate Judges with the Courts Commission.”

It was added the Constitution provides that, “[t]he Commission shall be convened permanently to hear complaints filed by the Judicial Inquiry Board” and it shall have the authority “to remove from office, suspend without pay, censure or reprimand a Judge or Associate Judge for willful misconduct in office, persistent failure to perform his or her duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial offic into disrepute.” IL Cons. 1970, art VI, Sec. 15(e) (emphasis added).

Her lawyers also argued “This Court lacks the authority to enjoin Ms. O'Brien from judicial office without letting her exhaust her fundamental due process rights. Notwithstanding the jury’s verdict, Ms. O'Brien maintains her innocence. She is on a briefing schedule to file motions that, if granted, wound exonerate her of the alleged crimes.

POST-TRIAL MOTIONS MAY 14, 2018

The federal District Court has entered a briefing schedule giving Ms. O'Brien until May 14, 2018 to file post-trial motions. Ms. O'Brien intends to file a Motion for Judgment of Acquittal pursuant to FRCP 29(a) by that date.

Last April 25, O'Brien's unopposed motion to extend her time to file post-trial motions was moved from May 14 to May 21. The government response is due by June 4 and her reply due by June 18.
Her lawyers argued that Ms. O'Brien is still innocent pending her sentence scheduled on July 6, 2018. They cited a previous holding of the U.S. Supreme Court (Berman v. United States, 302 U.S. 211, 212 (1937) that says, “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.”

“This Court should allow Respondent to exhaust her due process rights before making any determinations related to her law license or judicial office.”

Under Art. IV, Sec. 15, of the Illinois Constitution in 1970, Section 15 creates the Judicial Inquiry Board and the Courts Commission. The Board is given the power to investigate conduct of Judges and Associate Judges and the power to file complaints against Judges and Associate Judges with the
Courts commission.

The Constitution provides that, “[t]he Commission shall be convened permanently to hear complaints filed by the Judicial Inquiry Board” and it shall have the authority “to remove from office, suspend without pay, censure or reprimand a Judge or Associate Judge for willful misconduct in office, persistent failure to perform his or her duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial office into disrepute.” (Contact reporter: This email address is being protected from spambots. You need JavaScript enabled to view it.)

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