Judge Gordon Maag, the Democratic candidate for Illinois Supreme Court who recently lost to Judge Karmeier, has sued over an allegedly defamatory election flyer that was mailed to voters before the election. The defendants are the Coalition for Jobs, Growth, and Prosperity, whose name is on the flyer; the Illinois State Chamber of Commerce; and two individuals. Many newspapers have covered this story, including the Chicago Tribune and the St. Louis Post Dispatch. The Post article, for example, is here; another article from the Belleville News-Democrat is here.
The Belleville News-Democrat criticized the lawsuit in an editorial, calling it "over-the-top" and saying that Maag was out to intimidate his opponents. The News-Democrat also published a third article explaining why Maag was "unlikely to succeed"--
Bill Schroeder, a law professor at Southern Illinois University-Carbondale School of Law, . . . said Maag's chances of prevailing are not good.
"You've got to prove actual malice," Schroeder said. "You've got to prove people published something they knew was false, or that they had reckless disregard of whether it was true or false."
But Maag's attorney, Rex Carr, told the Chicago Tribune that "the charges are so blatantly false that no one could make them without lying or recklessly ignoring the truth."
And you know what? He's right, as I'll explain.
Until yesterday, I didn't know anything about the lawsuit except what I read in the various newspaper accounts (there are more than I mentioned). Though most accounts were dismissive of the lawsuit or included quotes calling it "laughable," not one set out the allegedly false statements in detail or put the statements into context. It's not hard to do, however. Yesterday, I got Maag's defamation lawsuit from the courthouse, aided by my law-student assistant. The lawsuit attaches the entire flier that's caused all the controversy. (As I learned by accident, you can also see the entire flier by following this link to a pdf file, at least until someone takes it down.) Whether or not you agree with Judge Maag's decision to sue, it's not hard to see why he was upset about the flier: it's false from start to finish, and makes Maag out to be complete scum--a monster, in fact. It certainly must give him a bad feeling to know his long and distinguished career on the bench ended like this, with his reputation in tatters. (A close family member who doesn't follow politics or the courts and who lives in the area where the flier was distributed said to my wife Andrea about Maag, "He's the one who let that murderer out, isn't he?")
The flier begins, "In Southern Illinois, the Wheels of Justice have ground to a screeching halt . . . Gordon Maag's Record On Crime: embarrassing -- and dangerous." The next page begins with another headline: "Gordon Maag's Record on the Bench: Questionable Decisions Bring Justice to a Grinding Halt." At the bottom of the flier is this headline: "Gordon Maag's decisions caused business and jobs to flee southern Illinois. On November 2nd, tell him we can't afford his brand of 'justice' anymore."
The main focus of Maag's complaint is six blurbs in the flier about six criminal cases. This is the flier's main content, which begins, "You'd be surprised to learn about some of Gordon Maag's rulings on the 5th District Court of Appeals. They're one of the reasons employers and jobs have been fleeing southern Illinois . . . and who can blame them."
The six short blurbs follow. I've quoted each of them below in full, followed by my own commentary. I've used bold print where the flier uses bold print, and I've retained its odd case-citation style.
1. What the flyer said:
What was he thinking? Judge Maag reduced a criminal's sentence for a brutal stabbing because he didn't think it was 'exceptionally brutal' and 'wantonly cruel' . . . the victim was stabbed in the face, neck and chest with a butcher knife. People v. Romell Johnson, Docket No. 5-99-0637, 333Ill.App.3d935.
What actually happened: Three judges participated in the decision. Justice Maag concurred in an opinion written by Justice Kuehn; Justice Welch dissented. For the majority, Justice Kuehn wrote that the defendant's acts were "unthinkable"; the flyer suggests exactly the opposite. The majority reduced the prison term from 50 years to 30 years not because it thought the crime wasn't brutal, but because the application of a statute providing for the additional twenty years was unconstitutional in light of the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
2. What the flyer said:
Letting a Murderer Back on the Streets Judge Maag reduced the jail time for a shooting conviction, only to allow the four-time felon to later commit murder. People v. Marcus Jackson, Docket No. 5-96-0243, 299Ill.App.3d323
What actually happened: Three judges participated in the decision. Justice Maag wrote the opinion; Justices Welch and Rarick concurred. While the flyer states that a murderer was allowed "back on the streets," this is just plain wrong. No one was allowed "back on the street" and no "jail time" was "reduced." Instead, the case was remanded for a new trial because the state produced a gun into evidence without demonstrating that it had anything to do with the crime.
3. What the flyer said:
A Mistake with Consequences Judge Maag reversed a drug dealer's conviction, allowing them to continue trafficking crack cocaine. People v. Samuel Yarber, Docket No. 5-95-0143, 279Ill.App.3d519
What actually happened: Three judges participated in the decision. Justice Kuehn wrote the opinion; Justices Maag and Welch concurred. Although the flyer states that a conviction was reversed, this is incorrect. In fact, there was neither a trial nor a conviction. Rather, the justices upheld a trial court's decision suppressing evidence against the defendant because actions by the police violated rights guaranteed to the defendant (and all citizens) under the U.S. Constitution. Whether Mr. Yarber sold cocaine after his ordeal is anyone's guess, but he probably didn't: the case involved pot, not cocaine.
4. What the flyer said:
Questionable Judgment Judge Maag overturned a 1st degree murder conviction because the jury was not given the correct instructions for a lesser crime . . . huh? People v. Larry Biggerstaff, Docket No. 5-94-0695, 174Ill2d571
What actually happened: Three judges participated in the decision. Justice Kuehn wrote the opinion; Justices Maag and Hopkins concurred. The flyer states "huh?" but the problem with the trial was obvious: on one of the charged crimes, the jury was not given a verdict form that allowed it to find "not guilty." No reasonable person would wish to be tried in this manner. Though the flier implied that Judge Maag allowed a criminal to go free, the three-judge panel actually remanded the case for a new trial.
5. What the flyer said:
'Technicality' Justice? Judge Maag turned a man convicted of soliciting the murder of a pregnant woman free, on a technicality. People v. William Terrell, Docket No. 5-02-0367, 339Ill.App.3d413
What actually happened: Three judges participated in the decision. Justice Chapman wrote the opinion; Justices Maag and Kuehn concurred. Though the flyer states that the man "solicited murder," the facts of the case, as determined by the jury, demonstrated that he did not solicit murder. (The citation in the flier is wrong too.) Although the man committed some wrongful acts, these acts were not encompassed by the statute that the state had charged him under. Although he had also been charged with attempted murder, the trial court had already found him not guilty of this charge, so the case could not be remanded for a new trial. [Correction: Jim Copeland correctly points out that this was a bench trial, not a jury trial.]
6. What the flyer said:
Overturning the Conviction of a Sexual Predator Judge Maag let a convicted child predator back on the streets because the trial judge read the jury testimony from the six year old victim; the jury had already heard this testimony. People v. Gary Miller, Docket No. 5-98-0434, 311Ill.App.3d.772
What actually happened: Three judges participated in the decision. Justice Hopkins wrote the opinion; Justices Maag and Kuehn concurred. While the flyer states that a "sexual predator" was allowed "back on the street," this is incorrect. In fact, the court remanded the case for a new trial. The reason the flyer gives for the decision is also wrong; the case was remanded because the defendant did not get a chance to cross-examine the victim, as is required by the U.S. Constitution.
So those are the details concerning Judge Maag's lawsuit. Although I would have preferred to link to all the cases directly, only one was available for free online. If someone can find alternative links or can think of a way for me to make the text of the entire cases available, I'll update the post. In preparing the post, I downloaded the cases from a pay service in files that I could easily convert to pdf, but I think this would violate West copyright (as to headnotes, page numbering, etc.), as well as my user agreement with the service. (Update: A helpful reader, Jeremy Richey, e-mailed me with some more links, which I added.)
For those who want to know about my personal biases, I supported Judge Maag in the election. Previous posts in which I mentioned Judge Maag on this website are as follows: