A longer road: Reaching the felony ranks in the state’s attorney’s office

By Pat Milhizer

As the Vietnam conflict was nearing its end and the Sears Tower opened for business in 1973, Donald J. Brown did what young Chicago attorneys have always done when they want courtroom experience right after law school. He joined the Cook County state’s attorney’s office.

Then 25 years old and fresh off 90 days of active duty in the U.S. Army, Brown started his legal career prosecuting misdemeanors for $12,500 a year.

A North Side native who already had worked in the office as a clerk during law school, Brown advanced more quickly than most of his peers at the time, but not by much. By the summer of 1974, he was handling felony review, preliminary hearings, and grand jury presentations for homicides and sex crimes. In his ninth month in the office, Brown reached the felony trial division.

”A lot of it,” said Brown, now a defense attorney at Donohue, Brown, Mathewson & Smyth, ”was timing and luck.

”My timing just happened to fall right where there were vacancies that needed to be filled, and I was tapped on the shoulder,” Brown said.

In those days, young lawyers like Brown started prosecuting felonies after only a year or two and not too many of the 330 criminal attorneys made a career out of it.

How things change.

Today’s salaries start at $55,361, and the criminal division has swelled to 520 lawyers. Chances are, many of those attorneys will stick around longer than their predecessors. And if they want to make it to the felony trial division, they don’t have a choice. Simply put, climbing the ladder in the state’s attorney’s office isn’t what it used to be.

Gone are the days that prosecutors could make it to felony courtrooms by their first, second or third anniversaries.

The reasons?

”When we talk about why it is taking longer, it is because the office is larger. There are more units, and there are more places that we have to feed people into. And there are more people who are staying longer,” said Adrienne D. Mebane, the office’s chief of staff.

The road to felony court

Jennifer H. Gonzalez, a native of Knoxville, Tenn., was the first in her family to go to college.

She earned a law degree at The John Marshall Law School in 1996, when she was 25 years old and about to start her legal career at the state’s attorney’s office.

Like all new prosecutors at the time, Gonzalez could either start in child support or criminal appeals.

”They told me I could go to appeals if I wanted to, but that I wouldn’t have a desk … I think I was going to be sitting in the library,” Gonzalez recalled.

Judging that feedback as a suggestion to select another assignment, Gonzalez joined the prosecutorial team that enforces child support payments.

She spent 16 months in the division before she began prosecuting misdemeanors in branch courts throughout the city.

In May 2000, Gonzalez advanced to felony review, in which prosecutors consult with police officers to decide whether an arrestee can be charged.

She made it to the Criminal Courts Building at 26th Street and California Avenue in April 2001, handling preliminary hearings.

After nearly six years in the office, Gonzalez joined the felony trial division in July 2002.

”It’s certainly frustrating,” Gonzalez said about the time it takes to make it to felony trials.

”Quite often, private attorneys will come in, and we’re talking about a case. They’ll say ‘I used to work in the office as a supervisor.’ Then in that same sentence, they’ll tell me they left the office after three or four years,” Gonzalez said. ”And that just blows my mind because it would take 15 years to be a supervisor today.”

Before advancing to the felony trial division today, prosecutors must complete three levels. In the first two levels, attorneys just have to complete one assignment. In the third level, they must do both.

Prosecutors begin in one of three areas criminal appeals, city misdemeanors or child support. The assignment can last about 14 to 18 months.

The second level is the longest, lasting around four years. It features traffic court, which includes misdemeanor drunk driving; domestic violence, typically involving battered women; narcotics; general assignment in the suburbs; and juvenile justice, which is prosecuting minors who commit crimes and finding new homes for children who have been abused, neglected, or orphaned.

The third level involves felony review and preliminary hearings, which can take about two years to complete. If the state’s attorney’s office was the Eisenhower Expressway, consider this stretch the Hillside Strangler.

”Felony review became a choke point,” said Bernard J. Murray, chief of the criminal prosecutions bureau.

Picturing the assignment levels, Murray said the system resembles a pyramid heading up to the felony trial level. ”And there’s a small inverted pyramid coming out of felony review. You’ve got maybe double or triple the amount of people in the second level feeding into the third level,” Murray said.

In the end, it can take an attorney somewhere between seven to eight years to reach a third-chair position in the felony trial division.

Along with the levels, advancement delays are fueled by the size of the criminal bureau, which has nearly 200 more attorneys than it did three decades ago.

”As the office grew, it expanded the size of each step,” said Murray, who joined the office in 1983 and reached the felony trial division in a little more than three years.

Factor in the rise of career prosecutors, and you have gridlock.

”I think what you see now is that with a lot of people male or female the spouse is the one out making a salary that’s either the same or a lot more, so people can afford to stay,” Murray said.

Transitioning into private practice

For attorneys who want trial experience before becoming a private trial lawyer, Murray said the office is still an option.

”There’s no doubt about that. We still have many people who do that … they realize, practically, this is a place you can get experience,” Murray said.

In the traffic division, the office averages one jury trial a week. So individual attorneys could try four or five jury trials a year.

”If they were to leave after traffic,” Murray said, ”they can become criminal defense attorneys specializing in DUI work. People also might be interested in domestic violence issues and move to different agencies that do family law. They got a great background because we’ve got a domestic violence unit.”

Given that prosecutors spend their days working with victims, many become Daley Center personal-injury lawyers, where attorney fees can be one-third of the yield from multi-million dollar settlements and verdicts.

In the old days, many got their felony courtroom experience within five years and left.

Some even found ways to advance more quickly.

In the late 1970s, when Philip Harnett Corboy Jr. started his legal career, going to the under-staffed Markham courthouse could shorten the route.

”It was an isolated courthouse, so they were looking for volunteers to beef up the ranks,” Corboy said. ”There was an unspoken rule that if you went to Markham, you advanced to get to the felony courtrooms.”

Corboy was trying felonies within two years in the office and left in 1985 to join the plaintiff’s personal-injury firm of Corboy & Demetrio, where he is today.

Concerning the bottleneck in the state’s attorney’s office, Corboy said, ”Let’s look on the bright side of the equation. It might be that there are kids out there who want to be career prosecutors.”

Corboy’s sister-in-law, Mary Elizabeth Lacy, started working in the state’s attorney’s office in 1984 and got to the felony trial division in 1989. Now deputy chief of the special prosecutions bureau, Lacy said the attorneys make a career out of it because they like the work.

”We’re all trained as advocates, and we get to fight for people who are victimized by crime. It’s great work and good for community,” Lacy said. ”People like working here. I know more than a few people who have left the office to go into private practice and shortly returned. Some come back right away and some come back years out.”

Patrick T. Driscoll Jr. falls into the second category.

Driscoll joined the office’s appellate division in 1968. At the time, any constitutional issue raised on appeal went directly to the Illinois Supreme Court. So Driscoll, then 25, was in Springfield representing the state on accusations such as involuntary confessions and illegal searches and seizures. He argued roughly 20 cases before the high court.

”It was the opportunity at a very young age to do a lot of things you couldn’t do at a firm. It was an opportunity you couldn’t replicate now,” Driscoll said. ”But it was just pure chance. I could have started in juvenile, and I wouldn’t have had that opportunity.”

Within about 18 months of joining the office, Driscoll was trying felony cases. In 1975, he left the office for a private practice career that spanned nearly a quarter-century, handling various criminal and civil matters.

In 1999, State’s Attorney Richard A. Devine asked Driscoll to return to the office as chief of the civil actions bureau. That bureau represents the county a $3.2 billion client in litigation, whether it’s defending against workers’ compensation claims or enforcing zoning regulations in unincorporated areas.

About the young lawyers in the office, Driscoll said, ”if they can stick it out, it’s certainly worth the wait.”

But many don’t, or can’t afford to, wait.

”It causes a lot of people to leave the office. A lot of really good prosecutors, too,” said Gonzalez, the assistant state’s attorney who’s originally from Tennessee.

”By the time I got to the trial division, it was almost six years,” she said. ”If I had gone to private practice, I could have been a partner somewhere. My hiring class was 28 people, and well more than half has left the office. And I would say they left the office by the time we got to felony review.

”At times you get discouraged when you don’t see movement on the horizon. In almost every assignment it’s taking too long. But there is always movement and you move up the ladder, and it’s fine again,” Gonzalez said.

Reasons to stay

Gonzalez, who tries murder cases in which the victim and the offender have a domestic relationship, has stayed in the office because of the self-fulfillment and colleague camaraderie that it provides.

Guiding victims through the legal system can produce personal satisfaction not measured in the dollars and cents of the corporate mergers negotiated in Loop high-rises.

”I feel like I’m doing justice, and something right in the world,” she said.

Gonzalez has tried 42 jury trials to verdict, and all but five have been felony cases. Of those, 15 of them were murders that produced 12 guilty verdicts, two not-guilty verdicts and a hung jury.

”I think I’m here for the long haul,” she said. ”There’s some inner part of me that just gets fulfilled by doing this job. I feel like justice is being done, and I don’t mean that everybody is found guilty.”

Still, when asked about the challenges that the office faces to retain attorneys, just about everybody interviewed for this article mentions the salary disparity between the office and private practice.

”Because we are all professionals, a lot of it has to do with money. I’ve been here 12 years now, and my salary is still less than what [first-year] attorneys make in some law firms,” said Gonzalez, who earns about $98,000 per year. ”And I don’t mean to sound sexist, but some of the men have families. They are sometimes the sole moneymaker, and I don’t know how they can raise a family and pay off staggering student loans.”

Murray, the chief of the criminal prosecutions bureau, confirmed that many people leave the office for financial reasons.

And he would know. He reads their resignation letters.

”We have a lot of people who say, this is all they ‘wanted to be. But I now have a wife, baby, mortgage, car payment,”’ Murray said.

”And a lot of people now leave due to [outstanding law school] loans many over $100,000. Some around $150,000,” Murray said. ”A lot of those people, they have to live at home with their mother and father or they have to already have been affluent.”

Prosecutorial compensation became a hot-button issue in late 2006 and early 2007 when Devine lobbied the county board for raises to bring his staff to the same pay levels as assistant public defenders. Unlike public defenders who are in a union that negotiates annual raises, prosecutors are not organized and only receive raises based on promotion.

At the time, Devine said the salary disparity sunk office morale.

”People are disturbed,” Devine said in November 2006. ”I don’t see any evidence or any sense that people are not doing their job as fully and aggressively and with the same commitment as before, but they’re upset.”

In July 2007, scores of prosecutors took time off work to pack a county board meeting, with the crowd spilling into a sweltering hallway outside. Later that month, county commissioners approved a pay package that gave prosecutors an 8 percent pay raise and a 4.75 percent bump over a two-year period. The attorneys also received a $500 bonus.

Despite the amount of time it now takes to progress through the office, several former prosecutors say the job still offers a way to gain courtroom experience and improve legal writing skills, for example, when working on appeals.

The office can help attorneys make the transition to private practice because lawyers learn how to examine witnesses and talk to a jury. Attorneys also can learn what veteran lawyers and judges regularly preach at the swearing-in ceremonies where new attorneys get their law licenses: civility.

”When you come out of law school, you seem to think things are nuclear war,” said Kevin P. Durkin of Clifford Law Offices, a firm that represents plaintiffs in personal injury and wrongful death claims. ”And as you get older, the longer you’re in the state’s attorney’s office, you realize that civility is important. You learn a lot about that. You learn who the bad lawyers are, and you get an idea of how you should not act.”

Civility aside for a moment, young prosecutors today will roll their eyes when they hear Durkin’s story.

Because he became a certified public accountant during college, Durkin was almost immediately placed in a special prosecutions unit that dealt with financial crimes when he joined the office in 1980. Within a month, Durkin was handling felony jury trials at 26th and California, prosecuting check-kiting cases and embezzlements.

After doing that for about 18 months, Durkin moved to felony review and preliminary hearings. Around his fourth year in the office, he was trying murder cases and other felonies.

”You talk to guys 10 years before me, and they were trying murders in a year. So it’s all been a progression,” Durkin said. ”They were shocked how long it took us.”

At the current pace of advancement, most assistant state’s attorneys who join the office this fall will possibly wait until 2016 to reach the felony trial unit. If that’s the case, at least there’s a good chance that they’ll never forget the year that they ”graduated” to felonies.

Chicago could be hosting the Olympic Games that summer.