Entries associated with the tag "Judge Richard Posner":

The debate is raging over this week's notorious New Yorker cover of Barack and Michelle Obama, but here in Chicago we've been there, done that. There's a world of difference between Barry Blitt's drawing of the up-and-comers in Islamic and revolutionary regalia and Mirth and Girth, David K. Nelson's 1988 acrylic painting of Harold Washington in a woman's undergarments: Blitt's trying to ridicule Barack Obama's more rabid opponents, while Nelson was trying to knock the recently deceased mayor's more rabid glorifiers. 

But their works have this much in common. They've made people furious. And each works better as an idea than as an executed picture. As Clarence Page said in the Tribune Wednesday about Blitt's cover -- "When it takes you too long to figure out whether a joke is funny, well, forget about it." I've never been able to persuade myself that Nelson's painting wasn't dumb (I've tried), and I'm still looking for ways to decide that Blitt's is witty.

The David K. Nelson controversy was a major chapter in our city's hysteria-packed history, an episode that began with black aldermen under police escort commandeering a painting from the School of the Art Institute and ended six years later with a withering decision in U.S. Appellate Court and an out-of-court settlement to Nelson. In his 1994 opinion Judge Richard Posner noted that after a day in police custody the painting was released to Nelson, "we assume on its own recognizance."

Mirth and Girth wasn't the last time David K. Nelson stirred up trouble in Chicago. In 1991 he made a cartoon for the Reader's year-in-review issue that was pretty funny. It showed Alderman Dorothy Tillman as a paper doll in skivvies trying to decide what to wear, a "feminine yet subtly persuasive" outfit accessorized by a revolver or something a little more rugged accessorized by a submachine gun and matching ammo-clip bandolier. (Tillman had reportedly waved a gun at a community meeting.) "Help Dress Dorothy," we called the cartoon.

To make a long story short, here's the column I wrote three weeks later, after the chairman of the state Democratic Party had urged his party's candidates not to advertise in this newspaper. And here's my column the week after that, meditating on the demonstration against the Reader that I'd watched from an office window.

I suppose we're seeing nothing more than respectful disagreement among thoughtful jurists, but there does seem to be an exquisite process of calibration shaping the appellate court's response to George Ryan's appeal.  To review, the former governor was convicted 18 months ago of corruption in office and sentenced to six and a half years in prison. Codefendant Lawrence Warner was sentenced to three and a half years. Their trial was a messy one -- it dragged on for six months, and while the jury was deliberating the Tribune turned up evidence that some of the jurors had lied on their questionnaires. At that point Judge Rebecca Pallmeyer suspended the trial, grilled the individual jurors, and replaced two who'd concealed arrest records. Ryan appealed, and last August a panel of three appellate judges voted two to one to uphold the verdict. The dissenting judge, Michael Kanne, cited the "dysfunctional jury deliberations" and said he had no doubt "that if this case had been a six-day trial, rather than a six-month trial, a mistrial would have been swiftly declared."

Ryan and Warner asked the full Seventh Circuit to hear their appeal, and on Thursday that court announced (registration required) that by a six-three vote it had decided it would not. The announcement was a paragraph long. Once again there was a ringing dissent -- Kanne was joined by judges Richard Posner and Ann Claire Williams -- and it ran on for more than 13 pages. "We agree with the panel majority that the evidence of the defendants' guilt was overwhelming," they wrote. "But guilt no matter how clearly established cannot cancel a criminal defendant's right to a trial that meets minimum standards of procedural justice."

So where are we now? Ryan and Warner were found guilty in a trial too tainted to be suffered in silence, and  twice an appellate court minority has censured it. Now Ryan and Warner will appeal to the Supreme Court, and as the Tribune observed, the fact that Posner -- "one of the nation's most influential judges" -- signed the latest dissent might help the Supreme Court decide to take the case.

The dissents have been so vigorous they've made it possible to imagine Ryan and Warner actually getting off in the end, which has made it easier for Pallmeyer to let them remain free while they appeal. But they haven't gotten off. A tarnished trial has been harshly criticized. But it hasn't been overturned. In a perfect legal world, guilt is always punished and principle is always defended. The handiest place to stand on principle is in dissent. 

UPDATE: Despite the latest dissent, on Friday Pallmeyer ordered Ryan and Warner to report to prison November 7. Their lawyers asked the appellate court to let them remain free pending whatever action the Supreme Court takes. A decision was expected early in the week.