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Public defender tries to head off board effort to fire him

Friday, May 02, 2008
Law Bulletin
by John Flynn Rooney

Cook County Public Defender Edwin A. Burnette has asked a judge to delay a County Board hearing set for next week on an effort by board members to fire Burnette.

Lawyers for Burnette, including Paul W. Mollica, filed a motion for a temporary restraining order Tuesday before Circuit Judge Daniel A. Riley.

This is the latest move in litigation before Riley that began when Burnette filed a lawsuit in November 2007 accusing County Board President Todd H. Stroger of illegal interference in the operation of the public defender's office.

Tuesday's motion asks Riley to prevent a May 7 hearing until Burnette's lawsuit is resolved or until Stroger furnishes a detailed explanation of the reasons for the proposed discharge and provides for ''a sufficient hearing to allow Mr. Burnett to rebut the allegations.''

Burnette said in a telephone interview on Wednesday, ''It's sort of like I'm shadow boxing because I don't know what I'm dealing with.''

Burnette said he also wants to know whether he can present evidence at the hearing before the County Board.

But Burton S. Odelson, an attorney for Stroger, said Wednesday that he told Burnette's lawyer that the public defender can do what he wants at the hearing, including presenting testimony and materials.

The Cook County state's attorney's office had a conflict in representing Burnette or Stroger in the litigation filed last fall, Odelson said. So both Odelson and William H. Hooks, an attorney for Burnette, were appointed as special assistant state's attorneys.

Odelson, a principal of Odelson & Sterk Ltd. in Evergreen Park, plans to argue before Riley that Burnette's motion is brought in an improper forum because Mollica is not a special assistant state's attorney.

In early April, a majority of the commissioners of the Cook County Board filed a resolution seeking Burnette's removal for ''dereliction of duty.''

Stroger's name is not on the resolution, which lists Burnette's lawsuit as one of the reasons to dismiss him.

The resolution states that Burnette has ''failed to timely process promotions of employees within his office'' and that last July he asked to reclassify five public defender positions to clerical positions.

Burnette's Tuesday motion states: ''The public defender is no ordinary policymaker. The office is cloaked in statutory, ethical and Sixth Amendment imperatives that compel him to exercise independent judgment.

''The sudden removal of Mr. Burnette from office leaves the office leaderless indefinitely while a successor learns the ropes, to the detriment of our criminal justice system and the Sixth Amendment rights of defendants.''

The motion was filed by Mollica of Meites, Mulder, Mollica & Glink and Hooks, both Chicago lawyers. Edwin A. Burnette, Public Defender of Cook County, etc. v. Hon. Todd A. Stroger, et al., No. 07 CH 33805.

The motion notes that the commissioners' resolution places Burnette in conflict with his ethical duties that prohibit him ''from allowing his staffing strategy to be influenced by the interests of a third party to the legal relationship that is paying for services.

''While it would have been a simple matter for Mr. Burnette to stay on [Stroger's] right side by following the president's lead on classifying, furloughing and hiring staff, these incursions on his authority would have placed him in an ethical conflict,'' the motion concluded.

A hearing on Burnette's motion is set for Friday afternoon before Riley.



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