Other professional experience:
ZEYO, Chicago, IL
- Co-founded the online court of arbitration and drafted its rules to increase access to justice
- Drafted rules that prioritize social responsibility by preventing the use of arbitration to cover up sexual misconduct or discrimination based on race, sex, age, disability, sexual orientation, or gender identity
JENNER & BLOCK, LLP, Chicago, IL
Associate, 2015–2019; Summer Associate, 2014
Albert E. Jenner Pro Bono Award winner
- Served clients in cases in the Supreme Court of the United States, federal courts of appeals, various United States District Courts, various Illinois state courts (civil and criminal), and various administrative forums
- Areas of practice include appeals & post-convictions, civil rights, criminal defense, domestic violence orders of protection, immigration, investigations, and complex civil litigation related to antitrust, arbitration, contracts, employment, environment, government contracts, insurance, intellectual property, professional responsibility, and securities
- Authored How Probable is “Plausible”?, University of Chicago Law Review Online (2018) and co-authored No transcripts, no appeals for Cook County’s wrongfully evicted, Chicago Daily Law Bulletin (2018), 2018 Illinois Civil Practice Guide, Jenner & Block Practice Series (2018), and Consequential Damages Can Exceed Policy Limits In Nevada, Law360 (2019); and contributed to “Crisis Management,” Business and Commercial Litigation in Federal Courts, Fourth Edition, Thomson Reuters & The American Bar Association Section of Litigation (2016)
U.S. DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS, Chicago, IL
Judicial Extern, 2013
- Conducted legal research and drafted opinions
LEARNING CARE GROUP, Washington, DC
Director of Government Relations, 2010–2012
- Rebuilt the government relations function for the second largest private provider of early childhood education in the nation
- Collaborated with the White House, executive departments, and Congress
- Analyzed policy, developed strategy, and implemented government relations initiatives at the state and federal level
- Managed 35 Government Relations Ambassadors and directed grassroots efforts of 17,000 employees in 1,000 locations
- Testified before the Michigan State Senate and successfully advocated to change the kindergarten starting age, saving Michigan an estimated $2B and making Michigan’s students more nationally competitive
AMERICA EDUCATES, Washington, DC
Chief Executive Director, 2010–2012
- Transformed the organization into a fiscal sponsor
- Worked in Tanzania to get nonprofit status for the Ikirwa School, and to engage the school’s member of parliament to get electricity and better roads for the village of Midawe
KNOWLEDGE LEARNING CORPORATION, Washington, DC
Government Relations Specialist, 2008–2010
- Monitored policymaking bodies, conducted policy analysis, educated policymakers, developed strategic communications, managed 20 Government Relations Liaisons, and directed the grassroots advocacy efforts of more than 20,000 employees at more than 1,000 locations to drive public policy at the federal level and in 26 states
- Executed a grassroots campaign that successfully drove Florida legislators to rescind proposed cuts to Pre-K funding
- Entered into public comment and wrote testimony presented to several state agencies
CORPORATE EXECUTIVE BOARD, Washington, DC
Strategic Research Analyst, 2007–2008
- Conducted and communicated research—including business best practices case studies, benchmarking reports, and economic trend reports—to Fortune 500 corporate executives
ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, Chicago, IL
Michael Curry Intern, 2006
- Assisted in the management and implementation of the unemployment insurance direct deposit pilot program
- Conducted data analysis and wrote biweekly reports on department funding, broad economic trends, and the direct deposit pilot program; steering decision making by the Chief Financial Officer
BRITISH HOUSE OF COMMONS, London, UK
Research Assistant to Member of Parliament Adrian Bailey, 2005
- Devised strategy to combat the white supremacist British Nationalist Party
- Developed anti-bullying legislation that was introduced on the floor of the House of Commons
UNITED STATES HOUSE OF REPRESENTATIVES, Washington, DC & Chicago, IL
Legislative Intern & Intern, 2008 & 2003
- Worked for Rep. Rahm Emanuel, Rep. Jan Schakowsky, and Rep. Carol Shea-Porter
- Drafted letters to constituents regarding legislative matters
THE UNIVERSITY OF CHICAGO LAW SCHOOL, Chicago, IL
Juris Doctor, 2015
- Edward W. Hinton Moot Court Champion
- Thomas R. Mulroy Prize for Excellence in Appellate Advocacy and Oral Argument
- Tony Patiño Fellow (awarded to the student(s) displaying the most impressive leadership, service, and achievement)
- Chicago Journal of International Law staff member
- Co-President of the Public Interest Law Society
- Research Assistant to Professor Anthony Casey
WASHINGTON UNIVERSITY, COLLEGE OF ARTS AND SCIENCES, St. Louis, MO
Bachelor of the Arts in Economics (Honors Program) and Political Science, cum laude, 2007
- Omicron Delta Epsilon, International Honor Society in Economics, member
- Six-time All Academic Recognition by the University Athletic Association
- Dean’s List honoree
- National Society of Collegiate Scholars, member
THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE, London, UK
- Hansard Scholar
Campaign website: https://www.epsteinforsupremecourt.com/
Tell us why you are qualified to be a Supreme Court justice.
It is important to first define the role, because Illinois Supreme Court justices are not simply our state’s loftiest case deciders. They are policy makers. They have the authority to write our courts’ rules of procedure, evidence, and ethics; to set design standards of courthouses; to determine procurement policy; to control the data and technological infrastructure of our courts; to determine attorney admission and discipline, and on and on. And that means they have the power to prevent injustices that we see happening over and again in our system. They have the power to prevent judicial corruption by reforming recusal policy, to prevent wrongful convictions based on junk forensic science by reforming our expert admission standard, and to prevent serial police misconduct by reforming the rules of criminal discovery.
They have that power, and in many instances it is exclusive. The legislature cannot make many of these necessary reforms—they have tried and were rebuffed for breaching separation of powers. Only the seven justices have the power to reform, for example, voir dire to prevent racist jury selection, or sentencing policy to require judges to explain on the record the reasoning behind their sentences (which would allow defendants to effectively appeal erroneous sentences).
Illinois Supreme Court justices have the power to reform our justice system. And that means that, ultimately, this race is not about the candidates at all. It is about the customers of the court—the people, parties, and communities that courts are meant to serve. It means that this race cannot be about who is most deserving of a promotion. It means that we have to consider vision—a vision for how we can reform our courts to better serve its customers. And that is what my candidacy is about.
I am qualified by a combination of vision, independence, and experience.
I have set forth a plan for systemic reform of our justice system (https://www.epsteinforsupremecourt.com/files/full_platform.pdf). We constantly talk about the problems of corruption, bias, police misconduct, mass incarceration, and inadequate access. Mine is the only campaign that has proposed solutions.
My proposals are largely common sense reforms that have been implemented in other places or contexts. For example, in our trial courts, when a judge has an alleged conflict of interest, an independent judge decides whether the judge in question can hear the case. But in our courts of review, justices with alleged conflicts get to decide for themselves whether to recuse. That has led to big problems, because it means we rely on the honor system to stop justices from deciding cases for their campaign donors (e.g., https://chicago.suntimes.com/politics/2014/7/18/18584145/state-supreme-court-justice-could-be-grilled-about-own-election). The Illinois Supreme Court can prevent that kind of thing by creating an independent body to determine conflicts and recusals. I am the only candidate in this race proposing such a reform (https://youtu.be/X9A7U_8_4gA).
I have also proposed reforming our expert admission standard (Illinois Rule of Evidence 702). Our standard, which applies the “Frye test,” has a terrible history of permitting pseudoscientists to qualify as expert witnesses and testify in our courts. In my practice I have seen firsthand how it allowed charlatans to falsely inculpate people based on junk science, like bite mark comparison. Most jurisdictions throughout the country, including federal courts, use a better standard known as the “Daubert test,” which requires experts to use reliable techniques and helps keeps pseudoscientists out of court. I am the only candidate who has proposed raising our expert admission standard (https://youtu.be/jEBd2CnVdec).
I am also the only candidate proposing that we address the fact that our courts are entitled to extra funds if they convict. Our courts should not be financially rewarded for convictions. It represents a perverse incentive that tears at the integrity of our courts. I think that is common sense and yet I am the only candidate who has proposed reform on this issue.
I humbly ask that you judge me based on the proposals in my platform, because ultimately those have the greatest potential to improve our justice system for the people, parties, and communities it is meant to serve.
I am an outsider. I owe no debts. I am beholden to no one.
Nor have I spent so much time within our state’s justice system that I have grown used to it. The poet G.K. Chesterton put it best when he said, “the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policeman, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”
The systemic errors that I have experienced and witnessed in Illinois courts—like inadequate criminal discovery and coercive plea bargaining—still hurt me. I haven’t grown used to those problems and I want to fix them. Not 30 years from now, after 30 more years’ worth of people fall victim to a failing justice system. Now, while I still see the prisoner in the dock. While I still see the awful court of judgement. While I still have the audacity to step up and fight to fix it.
As an attorney, I served clients in cases in the Supreme Court of the United States and in more than a dozen jurisdictions across the country. I worked for the top law firm in the country for pro bono service (Jenner & Block LLP) and won that firm’s pro bono award for exceptional legal service to the needy. I’ve done appeals & post-convictions, civil rights, criminal defense, domestic violence orders of protection, immigration, internal investigations, and complex commercial civil litigation related to antitrust, arbitration, contracts, employment, environment, government contracts, insurance, intellectual property, professional responsibility, and securities.
I served as chair of the Chicago Bar Association Committee on Alternative Dispute Resolution. I co-authored the 2018 Illinois Civil Practice Guide and an article in the Chicago Daily Law Bulletin calling for digital recording in Cook County’s eviction courts so that the right of the wrongfully evicted to appeal would be more than just words on a page—a call that was answered this year when the courts began recording proceedings
(https://www.epsteinforsupremecourt.com/files/epstein_and_thomas_wrongful_evictions_article.pdf). I also authored an article published in the University of Chicago Law Review Online that was the first to mathematically estimate the location of the federal pleading threshold (https://www.epsteinforsupremecourt.com/files/epstein_legal_theory_article.pdf). And I co-founded an online court of arbitration aimed at increasing access to justice (https://www.zeyo.co/). In drafting the rules for that court, I made social responsibility a priority by preventing parties from using arbitration to cover up sexual misconduct or discrimination based on race, sex, age, disability, sexual orientation, or gender identity.
I also have significant experience outside of law. I founded a nonprofit that partnered with 29th Ward Alderman Chris Taliaferro and a block club in Chicago’s Austin neighborhood to provide free, citizen-owned security cameras and solar panels to neighbors in an area with concerns about rising crime. I also serve on the board of directors for the Jewish Council on Urban Affairs (which serves as “the Jewish voice for social justice in Chicago”) and on the Young Professionals Council of the Lawndale Christian Legal Center (which provides legal services grounded in restorative justice for youth in the Lawndale area). For my work in both the courtroom and community, Chicago Scholars honored me as one of their 35 Under 35 Young Leaders Making an Impact.
Prior to my career in law, I worked in policy, politics, and government. I lived in Washington, D.C. for five years, during which time I worked as the director of government relations for a global provider of early childhood education, promoting subsidies and tax credits to enable children from low-income families to attend high quality child care. My writing on the topic earned me invitations to join the Institute for New Economic Thinking’s Human Capital and Economic Opportunity Global Working Group and a number of other groups working on expanding access to high quality child care. At the same time, I founded a nonprofit called Word Up DC that attempted to provide educational services to inmates in the D.C. jail (but that failed when a new mayor froze all the outgoing mayor’s pipeline programs) and later transformed a nonprofit called America Educates into a fiscal sponsor that supported educational programs across the globe. One of those programs was the Ikirwa School in the small Meru village of Midawe, Tanzania. To support the school, I went to Midawe to briefly live and work alongside its founder, Gasper Mbise. While there, we engaged the school’s Member of Parliament (Hon. Ole Medeye) to hold his first ever event with Meru people, and successfully compelled him to help bring electricity to the school’s village. Prior to that, I worked in London as a research assistant to a member of the British House of Commons, where I devised strategy to combat a rising white supremacist party in Britain’s West Midlands and developed anti-bullying legislation that was introduced in Parliament (https://www.facebook.com/epsteinforsupremecourt/videos/570028936856144/). Across the years I have also worked for the Illinois Department of Employment Security; interned for Representatives Schakowsky, Emanuel, and Shea-Porter; and served as the National Committeeman for the D.C. Young Democrats—in which capacity I proudly testified in support of D.C.’s pioneering marriage equality law (https://www.facebook.com/epsteinforsupremecourt/videos/326792964917325/0).
I performed admirably in my academic career as well. I earned my law degree from the University of Chicago Law School, where I won the Edward W. Hinton Moot Court Championship, and the Thomas R. Mulroy Prize for Excellence in Appellate Advocacy and Oral Argument. I was awarded entry into the Tony Patiño Fellowship for impressive leadership, service, and achievement; and served as co-president of the Public Interest Law Society and staff member on the Chicago Journal of International Law. While in law school, I externed in the United States District Court for the Northern District of Illinois and worked as a research assistant. I received my bachelor’s degree cum laude from Washington University in St. Louis, where I studied economics and political science. My honors thesis earned me entry into the Omicron Delta Epsilon International Honor Society in Economics and was discussed in Jeff Jarvis’ book, What Would Google Do? And I was a four-year member of Washington University’s track & field team (competing in the 400 meter dash) and six-time awardee of the University Athletic Association’s All Academic Recognition.
I am proud to note that, at 35 years old, I would be the youngest justice on today’s Illinois Supreme Court by over 30 years and would be the youngest justice to serve in 101 years—since the Court welcomed 31 year old justice Floyd Thompson (who, coincidentally, came from a law firm that would become Jenner & Block). Interestingly, though, if this were Illinois’ first Supreme Court, I would be the oldest justice on the bench. Our Court used to be very young. I also note that more than one-third of all justices of the Supreme Court of the United States and Illinois Supreme court never served as judges prior to joining their respective high courts. They went straight from being attorneys to sitting on their respective high courts. That includes great justices, like Earl Warren (US), Louis Brandeis (US), and Walter Schaefer (IL); and current justices Elena Kagan (US) and Thomas Kilbride (IL).
What two cases have you ruled on as an appellate judge that best reflect your scholarship, judicial philosophy and approach to justice?
I, like the more than one-third of all justices of the Supreme Court (both U.S. and Illinois) who went straight from being attorneys to sitting on the Supreme Court, have not served as an appellate justice. I can, however, point to two writings that reflect my scholarship, judicial philosophy, and approach to justice.
The first is an article I co-authored regarding the way in which Cook County citizens were losing their rights to challenge wrongful evictions because our eviction courts did not provide court reporters or digital recorders that could produce the transcripts that litigants need in order to do that successfully.(https://www.epsteinforsupremecourt.com/files/epstein_and_thomas_wrongful_evictions_article.pdf). That article reflects my focus on what I call “functional rights”—rights that people can actually manifest. I think it is important that rights not merely exist on paper—that they actually be accessible. That philosophy is reflected in my platform (https://www.epsteinforsupremecourt.com/files/full_platform.pdf).
For example, defendants have the theoretical right to appeal their sentences, but even if the sentence is erroneous the defendant will commonly lose if the judge does not explain on the record the reasoning behind the sentence (because the defendant will not be able to point to the erroneous reasoning). I propose fixing that by reforming rules to require judges to explain the reasoning behind their sentences. Similarly, defendants have the theoretical right to all evidence in the possession of the prosecution that is material and exculpatory, but in reality that evidence sometimes does not get disclosed because we rely on prosecutors to turn it over, even though to do so would be against their self-interest and in some cases they simply cannot know what is material and exculpatory. I propose fixing that by reforming rules to mandate open-file disclosures that give defendants access to the same information that prosecutors have. And litigants are theoretically prohibited from excluding potential jurors based on race, but the Batson challenge that would prevent them from doing so is largely toothless. I propose piloting programs that attempt to fix that by reforming rules to shield the physical appearance of potential jurors from the litigants.
The second is an article I authored that mathematically defined the location of the federal pleading threshold and proposed reforms that could improve litigation efficiency by eliminating incentives for litigants to present dishonest and inconsistent assertions regarding the proper scope of discovery (https://www.epsteinforsupremecourt.com/files/epstein_legal_theory_article.pdf). That article reflects my deep interest in procedural rules, and the ways they impact incentives and substantive rights.
In what way would you fill circuit court bench vacancies?
I would hold an open process that invites members of the bar to apply, and I would form a committee of advisors and community members who would help recruit and assess applicants. I would consider a number of traditional factors as well as the following: community representation, community service, legal experience outside of Illinois, non-legal experience, productivity, intelligence, integrity, and independence.
I want to emphasize the importance of recruiting applicants. If we merely put out a notice for applications we will be much less likely to find top talent. We have to actively seek out talent and encourage people to apply so that we can increase the quality and diversity of our judiciary.
What would you do to improve the way the Supreme Court administers the state’s entire legal system? Will you ask the Legislature for more money and what would you use it for?
I will advocate for the following reforms (which can be found at https://www.epsteinforsupremecourt.com/files/full_platform.pdf):
TO PREVENT CORRUPTION:
(1) I will work to implement a rule prohibiting justices from adjudicating their own alleged conflicts of interest (https://youtu.be/X9A7U_8_4gA).
In Illinois’ trial courts, when a party seeks to substitute a judge for cause, a disinterested judge determines whether the judge with the alleged issue can be impartial. But in our courts of review, justices with alleged conflicts decide for themselves whether to recuse. This is like letting pitchers call their own balls and strikes.
The combination of a system of judicial elections, permissive campaign finance rules, and deferring recusal decisions to individuals with alleged conflicts is a recipe for trouble that at best tarnishes the integrity of our courts and at worst serves as an opportunity for ne’er-do-wells to impose illicit influence on our justice system. I will work to amend the judicial code of conduct and rules of procedure to require disinterested parties to determine whether justices with alleged conflicts can be impartial and participate in cases, similar to the method we apply in our trial courts.
TO ADDRESS PERVERSE FINANCIAL INCENTIVES:
(2) I will work to issue an order prohibiting courts from spending funds that they obtained contingent on a conviction.
Under Illinois state law, courts are entitled to extra funding if they convict. Not extra funding for finding truth—extra funding for finding guilt. That creates a perverse incentive. The Court cannot prevent the collection of those funds, but it can prohibit courts from spending those funds. The integrity of our courts should be unimpeachable. There should be no argument that our courts are profiting off convictions.
TO ADDRESS THE WAYS IN WHICH PLEA DEALS CAN ENABLE SERIAL ABUSERS:
(3) I will work to implement a rule allowing depositions by right in criminal cases.
Trials are information factories. They are one of the key ways that our society uncovers corruption, fraud, and abuse. But in Illinois, approximately 95 percent of felony convictions occur without going to trial. They end in guilty pleas. When that happens, we lose an opportunity to uncover corruption, fraud, and abuse. We can fix that by granting depositions by right in criminal cases. That will allow the parties to discover critical information without expending judicial resources, and will allow trials to run more efficiently. We have already made this change in our civil courts and other states have made the change in their criminal courts.
TO ADDRESS WEALTH BIAS AND MASS INCARCERATION:
(4) I will work to implement a Rule making the conditions of pre-trial release presumptively non-monetary, and, where the condition of release is payment of monetary security, requiring a showing by the State that the accused has the ability to afford it (https://youtu.be/gQINIBJIp0s).
(5) I will work to implement a rule requiring judges to explain their sentences.
Illinois judges can sentence people to decades behind bars without ever explaining the reasoning behind their sentences. That is a problem because it is easy to make mistakes in sentencing and people cannot effectively appeal mistaken sentences if the judge does not explain their reasoning. The legislature passed a law to fix this problem, but the Illinois Supreme Court invalidated it on grounds that it intruded into the Court’s exclusive zone of authority and breached the separation of powers. In other words, the Court said that only the Court itself could fix the issue. But it has not fixed the issue. I will work to implement an Illinois Supreme Court Rule requiring judges to explain the reasoning behind their sentences.
(6) I will work to expand the use of court reporters or digital recording in courts throughout Illinois.
As it stands, in some courts in Illinois, parties can only get transcripts of proceedings if they hire their own court reporter. Court reporters are expensive, and thus some litigants are precluded from obtaining transcripts. Those transcripts are essential if they wish to win an appeal. Therefore, lack of money effectively prevents some litigants from enjoying their constitutional right to appeal. I co-authored an article on this topic (https://www.epsteinforsupremecourt.com/files/epstein_and_thomas_wrongful_evictions_article.pdf) and we have made some progress since, but there is farther to go.
(7) I will work to implement a rule allowing courts to appoint independent expert witnesses to level the playing field.
Wealthy parties are sometimes able to dominate non-wealthy parties in court by using expensive “expert” witnesses. When one side can afford expert witnesses and the other side cannot, it can sometimes lead courts farther from the truth. Federal (and some European) courts have a way of addressing this issue: they can appoint independent experts. But the Illinois Supreme Court Rules do not contain an analogous power. I will work to implement a rule similar to Federal Rule of Civil Procedure 706.
TO ADDRESS ANTI-SCIENCE BIAS:
(8) I will work to adopt the Daubert expert admission standard.
Illinois’ expert admission standard (engrained in Illinois Rule of Evidence 702) applies the “Frye” test, which has a terrible history of permitting pseudoscientists to qualify as “experts” and testify in our courts (https://youtu.be/jEBd2CnVdec). I have seen firsthand how it has allowed charlatans to falsely inculpate people based on junk science. Most jurisdictions throughout the country, including federal courts, use a better standard known as the “Daubert” test, which requires experts to use reliable techniques and helps keeps pseudoscientists out of our courts.
TO ADDRESS RACE, GENDER, AND ANTI-LGBTQ BIAS:
(9) I will work to pilot procedures aimed at preventing illegally discriminatory jury selection.
Lawyers are not allowed to remove people from a jury based on certain criteria, like race. But some lawyers do it and get away with it because the tool that exists to protect against illegal jury selection—Batson challenges—has major vulnerabilities. Unfortunately, people seem to have given up trying to create an alternative to Batson, but I have a unique proposal.
Typically, in jury selection, the parties are allowed to get certain information about potential jurors, including their names and addresses. However, in mafia trials, some courts use something called “innominate juries,” which—for the protection of the jurors—do not allow parties to know the identities of the jurors. We can do the same thing, but instead of shielding the name and address of jurors, we can shield the physical appearance of the jurors. Parties would still be able to execute voir dire just like normal, except that they would not be able to use the appearance of the venire to determine exclusions. That could help prevent illegal jury selection.
Jury selection is very delicate and so this kind of proposal will need to be piloted incrementally in cases with consenting parties. But the problem of illegally biased jury selection is so troubling that it is worth experimenting with solutions. The federal courts pilot procedural innovations and I will advocate for the Illinois Supreme Court to do the same.
(10) I will work to establish sentencing guidelines to promote consistency and reduce the influence of bias in sentencing.
In Illinois, two people who are the same in every relevant way and who are convicted of the same crime could get very different sentences. That allows things like racial bias to infect the sentencing process and enables coercive plea bargaining. Federal courts have adopted sentencing guidelines that effectively narrow the statutory sentencing range except where departures are justified and explained. In that spirit, I will advocate for the creation of a commission to create sentencing guidelines that the Court could adopt and implement to improve the predictability of sentencing and reduce bias and coercion.
(11) I will work to ensure that Illinois’ courts implement inclusive design practices.
The Illinois Supreme Court determines minimum design standards for courthouses in Illinois. I will work to ensure that those standards apply best practices in inclusive design so that our trans neighbors have equal access to courts.
TO ADDRESS INCENTIVES TO WITHHOLD EVIDENCE:
(12) I will work to implement an “open-file” framework throughout Illinois to promote transparency, to ensure that parties have access to the evidence against them, and to reduce the number of Brady appeals.
In civil cases (when money is typically at stake) parties have extensive rights to obtain evidence to help them prepare for trial. But in criminal cases (when liberty is on the line) defendants do not get those rights (e.g., rights to depositions). Instead, they enjoy rights under the Brady Rule, which says that prosecutors have to give defendants any evidence they have that is “material” (in other words, significant) and “exculpatory” (in other words, tending to help the defendant). But it is the prosecutor who gets to decide what is material and what is exculpatory. In other words, the prosecutor is responsible for doing something that hurts their chances of winning. They also get to decide when they turn over evidence. And as a result, defendants sometimes get mountains of critical evidence on the eve of trial, making it impossible to fully prepare. This is not a good way to find truth. Some jurisdictions have addressed this problem by adopting a system known as “open-file.”
Open-file systems give defendants access to the same information that prosecutors have. It lets defendants prepare properly for trial and it reduces prosecutors’ workload, because they no longer have to make challenging (and risky) decisions about what to disclose. It might also save taxpayers money by reducing the large number of appeals filed on the basis that prosecutors withheld evidence. For these reasons, I will work to amend the rules regarding mandatory disclosures to create an open-file framework.
TO EXPAND THE USE OF RESTORATIVE JUSTICE PRACTICES:
(13) I will work to revisit the proposal to make privileged certain proceedings in restorative justice courts.
Restorative justice courts respond to crime using innovative techniques that rely on community engagement. They require defendants to take accountability for their actions and then work out an agreement with the person harmed and members of the community that focuses on restitution, community service, and letters of apology. They also prevent crime by reintegrating offenders back into the community and connecting them with services, including mental health counseling, substance abuse treatment, education, job training, and parenting classes. Importantly, the process relied on participants being able to speak openly and without fear that something they say may be used against them. That is why a coalition of organizations throughout Illinois teamed up to design and submit a proposed rule change that would have made those conversations privileged. The Illinois Supreme Court rejected that proposal. It may only take a single instance of someone’s statements within a restorative justice court being used against them to cause people to clam up or opt out of the process altogether. It could reel back all the progress we have made on restorative justice in Cook County. I will work to revisit the rule that the Court rejected.
TO ADDRESS STATUS QUO BIAS:
(14) For cases remanded due to a judge’s error, I will work to implement a rule presumptively sending the case to different judge than the one who made the error.
In Illinois, if a federal trial court makes an error and on appeal a federal appellate court orders a retrial, the case goes to a different judge than the one who made the error. That is a good rule for a variety of reasons, including that judges may disfavor a party who embarrassed them by having their ruling reversed, or that the judge may have made the initial error due to an underlying bias that will still be there when the appellant returns. But Illinois state courts do not have that rule, so parties go right back to the judge who made the initial error. I will advocate for a rule that presumptively sends remanded cases to a different judge than the one who made the error.
TO EXPAND ACCESS TO JUSTICE FOR THE DISABLED, UNDOCUMENTED, EMPLOYED, AND CARETAKERS:
(15) I will work to pave access to our courts by enabling remote appearances.
Physical access to courts is a privilege that not everyone enjoys. For some, courts are too far away. For others, courts’ hours are too limited. Many caretakers simply are not able to leave alone the people they care for in order to travel to court. And, in a time when federal ICE agents are arresting people in state courthouses, physical presence in courthouses can be dangerous (https://youtu.be/a5D7kX24E5o). This is a serious problem, because it effectively protects people who prey on those who cannot access the court system (e.g., wage thieves who know their undocumented victims cannot sue them without risking deportation by going to court). We can address this problem by allowing parties to make remote court appearances using the cameras on their computers or phones. That technology is already in place in some courts and the Illinois Supreme Court—which has authority over the Administrative Office of Illinois Courts—can help implement it statewide. I will work to do just that.
TO PROMOTE DIVERSITY IN THE BAR AND ON THE BENCH:
(16) I will work to expand the pipeline of attorneys by changing the timing of the character fitness evaluation to reduce the risk of pursuing a career in law for people with less means and disciplinary records.
After law students incur hundreds of thousands of dollars in debt, but before they get to become a lawyer in Illinois, they have to receive the approval of a Character and Fitness Committee. The Committee considers past convictions, instances of misconduct, or disciplinary actions. If you have one of those, it is very difficult to predict whether you will be allowed to be an attorney in Illinois, and that may deter people who smartly do not want to risk incurring mountains of debt in hopes that they will be allowed to become an attorney. This has a disproportionate impact on people of color. We can fix that by simply giving people the option to get a preliminary decision from the Character and Fitness Committee before they decide whether to attend law school (and incur debt). Then a follow up evaluation can be done with regard to the years between the preliminary evaluation and application to the bar. I will work to implement such a mechanism.
(17) I will use rotating clerks to increase the diversity of attorneys who are likely to be considered qualified to serve on the bench.
Unlike the majority of judges at the federal level, our Supreme Court justices use career clerks. That may be more convenient or efficient for the justices, but it sacrifices an opportunity to train young lawyers and develop the pipeline of minority and woman attorneys. I would employ rotating clerks to develop that pipeline and ultimately to help make our bench and bar more representative of the community.
TO LEVEL THE PATH TO PARTNERSHIP FOR WOMEN, AND PROMOTE MENTAL HEALTH AND SUSTAINABILITY IN THE LEGAL PROFESSION:
(18) I will work to pilot mandatory gender-neutral parental leave policies.
Women in law firms are promoted to partner at lower rates than their male counterparts. There is growing concern that the disparity may be driven in part by the unavailability of gender-neutral parental leave policies, or male attorneys’ unwillingness to use their full parental leave. This is an important issue that we should explore by encouraging pilot programs that make full use of parental leave mandatory for attorneys regardless of gender. We should also explore whether such policies promote mental health and sustainability in the legal profession. If the pilot programs are successful, I will work to engrain mandatory gender-neutral parental leave policies in our code of ethics (with a careful eye toward how such policies may have different impacts on smaller firms).
I would not hesitate to ask for additional funding if I felt the proper administration of justice required it. However, many of my proposals will either drive revenue (e.g., remote appearances) or cut costs (e.g., ending cash bail) and I would not ask for additional funding until determining that it is necessary. If it were necessary, I would request funding to get digital recording devices in courtrooms that do not provide a court reporter.
Statewide, court filings are down 30%. At some point, do we need fewer judges? And are judges properly deployed now to where they are most needed? Please explain.
At some point we may need fewer judges, but I do not think number of filings is the metric we would want to look at to make that decision. For example, chancery might get fewer filings than traffic court, but that does not necessarily mean that we need fewer judges in chancery court (where cases tend to be much more complex and time intensive). I think we would want to look at something like the amount of time that litigants spend waiting on judges to advance their cases, or the amount of time judges spend with an underutilized docket. That would help us determine not just whether fewer/more judges are needed, but where fewer/more judges are needed, and would allow us to engage in strategic load management.
To that end, I do not think we are collecting and distributing the data that would allow us to know whether judges are being properly deployed. The Illinois Supreme Court is responsible for collecting and publishing administrative data and I think there is room for improvement in that regard.
In each term, the Supreme Court receives hundreds of petitions for leave to appeal. What is your guiding philosophy as to which cases the court should decide to hear?
The Court should hear cases with potential to resolve recurring problems, conflicts, or uncertainties in lower courts, public institutions, or civic life. That could come in the form of reversing wrongly decided appellate opinions, resolving district or division splits, clarifying interpretation of ambiguous statutes, taking on issues of first impression, or revisiting doctrines that have become incoherent in modern contexts.
It is also important for the Court to review Rule 23 opinions for the purpose of sending a signal to appellate justices that they cannot use the rule to avoid getting reversed.
The Illinois Reform Commission has recommended a pilot program for public financing of judicial elections. Should judicial elections be publicly financed, and why or why not?
The devil is in the details. If public financing lowers the bar to entry but then does not elevate candidacies high enough to compete with moneyed candidates who opt out, then it may further exacerbate the advantage of moneyed candidates by attracting more candidates who split votes.
The good news, however, is that there is an easier way to achieve the Illinois Reform Commission’s goal of reducing the ability of big money to influence public officials: the Illinois Supreme Court can create an independent body to determine conflicts of interest and recusals.
Currently we rely on justices with alleged conflicts to determine for themselves whether they have a conflict—which is itself a conflict. We are relying on the honor system to stop justices from deciding cases for their campaign donors. Look to two examples of why this reform is so important.
First, look to the recent example of Justice Karmeier and State Farm. In 1999, an Illinois Court ordered State Farm to pay over $1 billion in damages to a nationwide group of car owners. The case was ultimately appealed to the Illinois Supreme Court, where it sat for years. While the case was pending, Justice Rarick retired and Republican Lloyd Karmeier challenged Democrat Gordon Maag to replace him. In that election, State Farm executives and their attorneys are alleged to have given hundreds of thousands of dollars to Karmeier’s campaign and millions to groups supporting him.
Justice Karmeier won that election and joined the Illinois Supreme Court. Then, months later, the Court was tasked with deciding the State Farm case. The plaintiffs petitioned the Court to prevent Justice Karmeier from participating in the case, arguing that he could not be impartial because the defendant funded his campaign. But the Supreme Court stood back, explaining that, in Illinois, the justice with the alleged conflict themselves gets to decide whether they can participate in the case. So, it was up to Justice Karmeier to decide whether Justice Karmeier had a conflict. He decided that he did not have a conflict and then cast the deciding vote in favor of State Farm, to the tune of half-a-billion dollars.
To be clear, the problem here is not that Justice Karmeier broke the rules, it is that he appears to have followed the rules and the rules are broken. We can fix them.
Second, look at how the candidates in this election said they would handle recusal if a campaign donor appeared in a case before them: https://youtu.be/4JAIrOTc7Aw. Promises to recuse cannot be relied upon. Promises to intentionally blind oneself to the identity of campaign donors are not credible. And promises to recuse “at least while running for this office” offer no assurance once elected. We need structural assurances of integrity and the best way to do that is by having an independent body determine conflicts and recusals.
The Illinois Supreme Court currently is overwhelmingly white. Given that, how important is the issue of diversity in this specific election?
Diversity is important. Representation matters. Visibility matters. They matter especially because we have a system that is vulnerable to bias. That is why I am proud to be running the only campaign in this race with a platform that is explicitly anti-racist, anti-sexist, anti-xenophobic, anti-transphobic, anti-ableist, and anti-classist. My campaign is actively working to dismantle oppressive structures so that the courts we have tomorrow are better and fairer than the courts we have today (https://www.epsteinforsupremecourt.com/issues).
I am proposing reforms to prevent racist jury selection, the use of racist pseudoscience, and biased sentencing. I am actively advocating to end our biased system of cash bail. I am out front proposing adoption of technology that would enable remote appearances that would expand access to justice for people with disabilities, working people, caretakers, and the undocumented.
I am proposing reforms that will promote diversity on the bench and bar by tweaking the character & fitness assessment and switching from career to rotating clerks. And I am proposing reforms that could help level the path to partnership for women.
Ultimately, my campaign is about making reforms that help courts find truth and restore. Bias leads us farther from truth and has unfortunately found a foothold in our justice system. I know because I represented people who were hurt by bias. I take personal offense to the existence of bias in our justice system and I am proud to be running the only campaign in this race that has proposed ways to fix it.
Many cases now being addressed by appellate courts have to do with gun possession, in part because of the state’s new concealed carry law. We also anticipate an increase in cannabis-related cases now that, as of Jan. 1, recreational marijuana will be legal but highly regulated. In light of this, do you foresee the Supreme Court being asked to redefine search-and-seizure protections? What is your view on the current restrictions on search- and-seizure?
I think the Court will likely be asked to determine whether sensing marijuana and related materials in various contexts constitutes reasonable suspicion or probable cause. As for current restrictions on search-and-seizure, I share the National Center for Transgender Equality’s concern regarding the use of gender identity or expression “as a basis to stop, question, search, or arrest [individuals and] as a sole basis for initiating contact, or as evidence of . . . crime, including prostitution-related offenses.”
I am also concerned that current restrictions on search-and-seizure may be ill-equipped to strike an efficient balance between privacy and security in an era of bulk data collection.
You’re a lawyer, right? So tell us. What’s the best movie, TV or book ever set inside a courtroom?
As someone who identifies with the “yoots,” I have to go with My Cousin Vinny.
What historical figure from Illinois, other than Abraham Lincoln (because everybody’s big on Abe), do you most admire or draw inspiration from? Please explain.
Operation Greylord represents one of the most important improvements in the history of Illinois’ justice system, and the hero at the center of it didn’t have 30, or 20, or even 10 years of experience. Greylord was spurred by a young attorney named Terry Hake. He was not the only one who knew about the corruption in our courts. He was surrounded by people with decades of experience with that corruption, but over those years they had grown used to it. Terry Hake hadn’t grown used to it and he was the idealist who stepped up and fought to fix it. We need that again.