On a recent fall morning, the West Side misdemeanor courtroom of Cook County Circuit Court Associate Judge Clarence Burch was humming along. More than 50 cases–most involving some sort of hustle like prostitution, gambling and selling cannabis–were being called.
Akeem Onisemoh, a quiet 22-year-old charged with selling a small amount of marijuana, walked nervously toward the bench with his hands stuffed in his pocket. Since his arrest in September, Onisemoh had been out on the bond after posting 10 percent of his $10,000 bail.
“Because you posted a significant bond,” Burch told Onisemoh as he approached the bench, “your payment will have to go to a private attorney.” As far as Burch was concerned, the fact that Onisemoh was able to post bond was evidence that he was not indigent–and therefore ineligible for a public defender.
The Chicago Reporter has observed Burch and other county judges deny public defense based on bond payments, even though a series of court decisions–including one by the U.S. Supreme Court–has ruled that the defendants’ ability to post bond is not a legitimate means to assess their eligibility.
It’s a practice first flagged by the Chicago Appleseed Fund for Justice and the Chicago Council on Lawyers in May. Malcom Rich, the nonprofits’ executive director, says the practice amounts to a violation of defendants’ constitutional rights.
Responding to “credible reports” of the practice occurring under his nose, Chief Judge Timothy Evans issued an administrative order in August reminding judges that, in Illinois, eligibility is determined through an affidavit that defendants are required to fill out.
“Not only have I sent out a notice to all of the judges so that the law would be clear to them, [but] I’ve also asked the presiding judges to re-emphasize, and they likewise have sent out notices,” Evans said.
The nonprofits dispatched observers to a handful of courtrooms again this month and found the judges continuing their practice, Rich said. The observers will turn over their findings to Evans soon, Rich added.
Evans said that he can’t comment on how he’ll respond until he investigates specific instances.
Paul P. Biebel Jr., presiding judge of the court’s criminal division, was not available for comment.
For his part, Burch says he has little patience for defendants who expect the public to pick up the tab for their legal bills. “If it’s a drug-related incident,” he said from his chambers at the branch court at Harrison Street and Kedzie Boulevard, “I’m not going to have the citizens of Cook County paying for their [legal] service.”
In Onisemoh’s case, the court gave half of the $1,000 bond he posted to a private attorney who is contracted by the Chicago Bar Association. The court gets to keep $100, and the remaining $400 would be refunded.
Onisemoh said he didn’t realize that his bond payment would end up costing him his rights to a public defender.
Scrounging up the money was a struggle for Onisemoh. His bond was set at $10,000–relatively high for a low-level drug charge–because he had been arrested on another cannabis-related charge earlier this year and blown off related court dates.
That meant that Onisemoh had to come up with $1,000, or be locked up. He called his sister, who reached out to his grandmother, for help. His grandmother Kathye Dawoudi borrowed from friends to bail him out.
The 68-year-old felt getting her grandson–whose only brushes with the law were cannabis-related–out of jail was the least she could do after she had to push him out of her place when she was recently forced to move. “I couldn’t afford rent,” she said. She’s now doubled up with two of her daughters.
Onisemoh has since been living “house to house.” He added, “I’m not stable right now.”
“I borrowed [bond money] from seven people–from friends who are waiting for me to pay them back,” Dawoudi said.