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The System: Occupational Hazard

A public defender tries to dump a job where he'd have to call a sitting judge a liar.



By Jeffrey Felshman

Since he pled guilty to murder in 1992, Philip McDowell has been represented by more than a half-dozen attorneys, most of whom haven't lasted more than a couple months. He's that most difficult of clients: the jailhouse lawyer. He knows his case inside out and has a chip on his shoulder as big as his mouth. In his mind he's not even really a client--he's cocounsel. Maybe even lead counsel.

The latest attorney to take on McDowell's case is Richard Kling, a professor at the Chicago-Kent College of Law appointed to serve as his public defender a year and a half ago. As has been the pattern for more than ten years, McDowell and his lawyer have hit a wall. On July 20, the day before the two were to appear in court for the first time, Kling filed a motion to withdraw, citing an "irreconcilable conflict." He says he'd only just realized that McDowell was charging Thomas O'Hara, his first lawyer, with lying. And O'Hara is now a judge.

The man McDowell was convicted of killing was Joseph Freeman Pankey, a car transporter he'd met at an auction in Slidell, Louisiana, in 1989. Pankey had been looking for someone to help him drive a car from Alabama to Alsip, Illinois, for his brother, who owned a dealership. McDowell accepted the job. Pankey was later found dead in room 12 of Alsip's D-luxe Budget Motel.

On the morning of his trial McDowell showed up bruised and battered, saying he'd been beaten by five guards at Cook County Jail. McDowell's court-appointed lawyer, Thomas O'Hara, says his client assured him that his physical condition in no way influenced his decision to plead guilty. But the following day McDowell wrote a petition to withdraw his plea that hinged on the beating. He then filed a complaint with the Attorney Registration and Disciplinary Commission (ARDC), which stated that O'Hara had only met with him a few times, done little to investigate the case, and convinced him that the evidence was overwhelming when it wasn't.

O'Hara denied those charges in a November 1992 letter to the ARDC, in which he claimed that McDowell "told me that he had in fact killed the victim." Two other men have also gone on record as saying that McDowell confessed to Pankey's murder: McDowell's younger brother Timothy and Glenn Serratt, who was locked up at Cook County with McDowell in February 1990. The ARDC never took action against O'Hara, and McDowell's petition to withdraw his plea was rejected. He was eventually sentenced to 60 years.

McDowell is currently in the third stage of hearings on a writ of habeas corpus that was granted by the Illinois Supreme Court in July 2002. His court date with Kling was to be an evidentiary hearing.

One month after Kling's motion McDowell filed a reply. A hearing was set for September 8, then rescheduled after Judge Kerry Kennedy recused himself. On the morning of October 11, McDowell and Kling finally appeared in room 207 of the Bridgeview courthouse.

At 11:45 Judge Colleen McSweeney Moore returned to the bench from a brief recess. Only a couple of onlookers remained from the morning docket of DUIs and probation violations. Kling, dressed in a rumpled black pin-striped suit with black cowboy boots, was accompanied by Morgan Trinkaus, one of three students he's worked with on McDowell's case. Across the aisle was assistant state's attorney Mary Lou Norwell, digging through an extralarge brown accordion file, bulging at the seams, with mcdowell written on the front in black Magic Marker. "I'm having a hard time finding your motion to withdraw," she said to Kling. "Do you have a copy?"

McDowell entered the room dressed in a bright yellow jumpsuit that hung off his slender frame like a spent parachute and took a seat between Kling and Trinkaus. From the back he looked like a no-pass stripe on a two-lane highway.

The judge began the proceedings by asking all sides if they had a copy of McDowell's objection to Kling's motion. "Yes I do, your honor," McDowell replied. Norwell rifled through the case file again. Apologizing for the delay, she explained, "I have numerous documents filed by the petitioner."

"I have a question for the court," McDowell said to Judge Moore. "Why did they take Kennedy off the case?"

"Do you mean Judge Kennedy, Mr. McDowell?"

"Yes, your honor, Judge Kennedy."

"I wasn't present when it happened," Moore said. Kling, who was there, offered that Kennedy had stepped down because he'd worked in the public defender's office at 26th and California at the same time as O'Hara. "For what it's worth, I was also an assistant public defender during O'Hara's tenure at 26th and California," Kling said. "But I didn't know him."

Kling assured the court that McDowell hadn't asked him to engage in any unethical or illegal conduct--the usual reason a lawyer files a motion to withdraw--"but I have a fundamental disagreement with Mr. McDowell's wishes," he said. "I cannot challenge a judge on one man's word when others have said the same thing. I don't want to be in a position in which I'm accusing a sitting judge of being a liar."

Judge Moore asked if the state had anything to add. Norwell said the state sided with the defendant, who is entitled to representation. The judge then asked McDowell if he wanted to say anything. He did, and proceeded to read from O'Hara's 1992 statement to the ARDC. When he finished, McDowell turned his attention to Kling. "He had this statement for 16 months. He knew about it for 9." Yet Kling hadn't asked to withdraw until the day before the July 21 hearing. "Why?" McDowell asked. "Judge O'Hara's statement is false and I can prove it. I'd be glad to see him in court."

Kling restated his position regarding O'Hara, but the judge was ready to rule. The reason for her decision, she said, "is succinctly stated in Mr. McDowell's objection: 'I believe that if this court allows Mr. Kling to withdraw as appointed counsel based solely on Mr. O'Hara's self-serving statements to the ARDC--which I contend are untrue--there will essentially be a built-in excuse for every other attorney who might be selected to represent me. As a result, what has now been a four-year delay in this court hearing my claim of actual innocence could very well stretch out to infinity.'"

Putting down the paper, Judge Moore leaned forward, looked directly at Kling, and raised her voice. "That's the crux of the argument," she said. "I know you have been a staunch advocate for your clients for many, many years. Motion to withdraw denied."

"I may join Mr. McDowell in lockup," Kling responded, rising to his feet, "but I will not attach my name to a plea alleging Judge O'Hara is a liar."

"I have no doubt you have the ability to represent your client," Judge Moore said.

"I'm just concerned about attaching my name to a document that makes that assertion," Kling said.

Judge Moore suggested that McDowell proceed as a pro se defendant with assistance from Kling. That way it would be understood that documents signed by Kling had actually been authored by McDowell. However, the judge insisted, "We are not going to be in a hybrid situation." With a nod to Kling, she told McDowell, "He is your attorney."

Kling said he could be ready in 30 days, but the judge said the case is far too complicated to rush. "This is a 1990 case. It's 2006. I've only had it for a month!" She set an evidentiary hearing for December 8 and adjourned the court. McDowell was escorted out by four police officers. His first stop would be Stateville, then he'd be taken back to Danville.

Out in the hall, Kling dialed a number on his cell phone. "You're cross-examining Judge O'Hara," he said to Trinkaus. When Norwell joined them, he repeated the joke.

"We're just trying to get to the truth," Norwell said with a tight smile.

Art accompanying story in printed newspaper (not available in this archive): photo/Chicago-Kent College of Law/IIT.

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