THE BLOG
10/23/2013 09:46 am ET | Updated Jan 23, 2014

Judge Cannon's Rap

Outside of legal circles, it is a little known fact that judges, like criminal defendants, have "rap sheets" -- cases involving past misconduct. A judge's "priors" include everything from reversals by higher courts to biases documented in court-reported transcripts. It is useful information for lawyers on both sides to have when a case is assigned to a particular judge.

The rap sheet for the Hon. Diane Gordon Cannon, an imperious Cook County criminal court judge, is becoming the stuff of legends. As I have reported, Judge Cannon, 58, wrongfully jailed a Serbian immigrant who was freed when high-ranking judges intervened; berated and locked-up a young mother of three for using a cellphone from a washroom to check on her disabled child; harshly sentenced exonerated death row inmate Anthony Porter to a year in prison for shoplifting four sticks of deodorant; and, repeatedly delayed a hearing for an innocent man until he died alone in his prison cell.

If this were not troubling enough, wait until you hear what Judge Cannon did in the case of Chad Johnson.

It was Super Bowl Sunday, Feb. 1, 2004. The game between the New England Patriots and the Carolina Panthers was the most-watched Super Bowl ever. Sports Illustrated writer Peter King called it the "Greatest Super Bowl of all time," though it will probably be best remembered for a halftime controversy -- pop singer Janet Jackson's infamous "wardrobe malfunction."

For Chad Johnson, the big game meant long hours tending bar at the Spot Bar and Grill in Fulton, Kentucky. An employee of the Spot later swore he was busy serving drinks that day. Johnson's girlfriend at the time distinctly remembered Feb. 1 because Johnson gave her $80 to buy shoes for a ceremony the next day honoring her as "Teacher of the Year." The girlfriend's mother corroborated this story.

But Cook County prosecutors believed Johnson was not in Kentucky on Super Bowl Sunday. They alleged that he was 375 miles away, in Chicago, where he killed a man and injured others in a drive-by shooting. The incriminating evidence consisted of statements by two victims who identified Johnson as the shooter.

According to court records, however, both victims made wildly inconsistent statements, both were members of a rival gang to the one that Johnson had belonged, none of the other witnesses saw Johnson, no physical evidence linked him to the scene and he consistently professed his innocence. Nonetheless, prosecutors charged Johnson with first-degree murder and aggravated battery.

The case was tried before a jury in courtroom 506 -- the domain of Judge Cannon, a career prosecutor until she was elected to the bench in 1996.

Johnson's claim of innocence rested on a well-established law of physics: that humans (unlike subatomic particles) cannot be in two places at the same time. So, his alibi defense was crucial to establishing reasonable doubt. This is where Judge Cannon intruded.

At Johnson's trial, the following exchange occurred between Cannon and Kinyona Taylor, a defense investigator who had helped establish the alibi. At issue was a report of interviews with alibi witnesses that was written by Taylor's investigative partner. The jury was present for most of the colloquy.

CANNON: Did you write a report of what the witnesses said?

TAYLOR: No, I didn't specifically, me, no, I did not write a report.

CANNON: You did write a report?

TAYLOR. Specifically, no, I did not-

CANNON: Wait a minute. Ma'am, listen to my question. Did you write a report?

TAYLOR. No, I did not.

CANNON: Did your partner write a report?

TAYLOR. Yes, she did.

CANNON: Is that the report there?

TAYLOR. This is the report that my partner wrote.

CANNON: Is that it? You call that a report?

DEFENSE COUNSEL: Judge-

CANNON: Wait a minute. Ladies and gentlemen of the jury, step out.

Outside the presence of the jury, Cannon pummeled the defense investigator with questions about her annual salary for the Public Defender's Office, whether she charged the office for her "trip for this alibi," what she was "paid every night," and whether she was reimbursed for gas, food and lodging.

Taylor calmly answered the judge's questions.

CANNON: Okay. And you didn't write a report with one of your interviews and your partner did not write a report with one of your interviews?

TAYLOR: No.

CANNON: Okay. You can take this --if you call this a report...This is not going into evidence.

DEFENSE COUNSEL: Judge, at this time we would move for a mistrial. The Court was yelling at my witness.

Cannon denied the motion for a mistrial, then opined: "How a Cook County Public Defender employee can call that a report is beyond me. That borders on perjury for both of you, and you know it."

The jury returned, was later instructed by Cannon and, deliberating without the report about the alibi, found Johnson guilty.

Cannon slammed him with an 80-year sentence.

Johnson's lawyers with the State Appellate Defender's Office appealed the conviction, citing numerous judicial errors. Last year, a unanimous court of appeals agreed and ordered a new trial.

Among other reasons, the appellate panel threw out Johnson's conviction because Cannon tainted the trial right from the start by not following the rules in selecting jurors. The judges found that Cannon had failed to question prospective jurors about whether they accepted the most basic principle of criminal law -- that defendants are presumed innocent. This error was especially troubling, the judges decided, because "the evidence in this case was closely balanced."

But the judges saved their most blistering comments for Cannon's questioning of the defense investigator. "The patent sarcasm inherent in [Cannon's] comment unnecessarily displayed a personal evaluation of the report's quality... it was less than appropriate for the judge to personally comment, not only on the quality of the evidence, but upon the diligence of the investigator."

The judges also scolded Cannon for being "unnecessarily preemptive and dismissive in terminating defense counsel's repeated attempts to elicit testimony" from the lead detective in the case, which "the judge (albeit erroneously) ruled to be inadmissible hearsay. Such display of annoyance could... potentially have served to reinforce any impression of hostility toward the defense that the jury had received from the judge's prior colloquy with [the investigator.]"

As for Cannon's temperament, the judges shot this reminder her way: "Comments must be measured and controlled to maintain a climate and appearance of dignity and neutrality."

"It would be best for both the court and the parties if the trial on remand were to take place before a different judge," the appellate panel concluded.

And there is more. This year alone, Judge Cannon has been unanimously reversed in two other cases. In April, an appellate panel ruled that Cannon had improperly dismissed a petition for a new trial in a murder case -- the second time she was admonished for mishandling the case. And in September, a different trio of appellate judges tossed out her sentence of a sexual predator.

Yesterday, I drew an analogy between Judge Cannon and the Queen of Hearts from Alice in Wonderland. There is also the famous fable by Hans Christian Andersen about a pompous ruler. When a young child states the obvious, the entire town soon proclaims it.

Will Presiding Judge Paul Biebel finally acknowledge what most everyone at the criminal courthouse can plainly see? The Empress isn't wearing anything at all.

Matt Kovac and Cierra Strawder contributed to this article.