Michael Agruss: Welcome to the Mike Agruss Law Video Podcast. We are a different kind of law firm and that’s on purpose. At Mike Agruss Law, we see you as a person and not just a client and that makes us better at what we do. We’re not just lawyers and you’re not just a client, we’re friends, neighbors and family. This is a show about all things legal-ish that friends, neighbors and family want to know. This is season 1, episode 4 and today we’re talking criminal law, marijuana, bail and jail during COVID-19.
Michael Agruss: Today’s guest is Brendan Shiller, Managing Partner of Schiller Preyar Law Offices. A lifelong resident of Chicago, Brendan has extensive experience in a variety of areas of law, including criminal defense, civil rights, immigration, zoning and licensing.
Brendan, how are you?
Brendan Shiller: I’m good. How are you doing?
Michael Agruss: Doing well. Thank you for doing video podcast with me. I started during this a couple of months before the COVID-19 shut down and you are the first person I’m giving it a shot with over Zoom, so I appreciate it.
Brendan Shiller: No problem, thank you for letting me participate.
Michael Agruss: Of course. Tell me a little bit about your firm. I think recently it merged and you’ve got more lawyers now, right?
Brendan Shiller: Yes. The firm’s now called Shiller Preyar Jarard & Samuels. It has four named partners and a fifth partner whose unnamed. It primarily focuses on civil rights, mostly Section 1983, Police Misconduct Civil Rights, criminal defense and immigration. My practice these days is mostly kind of like a government relations practice, mostly around marijuana, that’s where I’ve been focused the last couple years with a variety of other things. The firm is housed in a building called The Westside Center for Justice, which houses has six nonprofits and a couple other solo practitioners and small firms, all of whom are focused in various waves on trying to impact the Criminal Justice System, trying impact policy, providing pro bono legal services in a variety of ways, really in a holistic way intended to aid folks are in danger of slipping into the criminal justice system or coming out of it.
Michael Agruss: Got it. And you and I went to John Marshall together, I think you ended up graduating early, but we’ve been practicing I think for about the same about of time. I’ve always followed what you’ve done. I think what you do is interesting, it’s cutting-edge and you share a ton on social media, which I think is great. I wanted to, I think I know a little bit about your background and I think you ended up as a lawyer maybe not the most conventional route, so tell me a little bit about… If I remember correctly, you dropped out of college and then tell… Oh, I’m sorry, dropped out of high school. Do I remember this right?
Brendan Shiller: Yeah, yeah. I was actually at Whitney Young High School, I was actually in the Academic Center. So either I was smart as a 12 year old or I was smart enough to fool people as a 12 year old, but I ended up dropping out of high school fairly unceremoniously with not any real good grades in high school or any good high school experience. The folks who kind of raised me essentially gave me a job in their dark room and then I started writing for various alternative media and eventually, I got into college.
Brendan Shiller: I graduated college at the age of 25, I started again back in Alternative Media because that’s what I was used to, that’s what my degree was in, was in journalism and it was hard for me to keep a job based on my personality in general. So after the third firing in three years, I went back to law school, which is where I met you. I was 29 when I went back to law school, but it was so… It wasn’t necessarily the most common route, but it made sense, it was logical.
Michael Agruss: Yeah. I remember meeting you in law school. We were in classes together obviously. I remember you killed it at law school. I joke around when people ask me if I know a criminal defense lawyer, I always say your name and then I say, “Think he’s the smartest person who’s graduated from John Marshall Law School.”
Brendan Shiller: Well, I appreciate that. I was lucky. In one sense, I think all the life experience I had made me a lot more cynical about how to actually attend class and how to get through school, so I had some advantages.
Michael Agruss: Got it.
Brendan Shiller: As a 29 year old who had been fired three times [crosstalk 00:05:20].
Michael Agruss: I don’t know if you remember this story, but I struggled really hard in law school with real property, with… Was it [Beshley 00:05:31] who taught the class?
Brendan Shiller: Yeah, Beshley, yeah.
Michael Agruss: I remember, for the life of me, I just, I’d read thing, I’d get case notes, I’d get bar review, but I couldn’t understand it. I remember there was this one case in his class and you always sat in the background, I remember this one day you sat in the back of the room, I remember I looked at this case and it just for the life of me, it wasn’t even like an English. I remember, to me, I couldn’t even understand it. But think Beshley called on you to brief the case, and if I remember, you read it like you did a brief in some poem or like haiku or something that was totally funny and off the wall, does that ring a bell to you at all?
Brendan Shiller: It doesn’t, but I believe you. I’m sorry, I don’t recall. Sorry.
Michael Agruss: I remember thinking I couldn’t even read it and brief it and then here you’re reciting your brief as a poem to the class. I was thinking like, “Man, this guy just gets it, I’m totally missing it.
Brendan Shiller: Yeah, all I got was that Beshley was an ego maniac whose head was so far you know where that I had to mess with him a little bit, that was really what that was all about. Actually, liked Beshley, he was a good guy, but he tried to make it harder than it was.
Michael Agruss: Oh, I’ll you that.
Brendan Shiller: If I recall. But law school experience was a good experience. It was an opportunity to… Even as cynical as I was, most people going to law school may think that they’re really learning something that’s meaningful. Even whether it is or isn’t, just thinking that makes it a fun experience and trying to be creative and trying to have the hope and naivety that comes with I’m going to get some tools that allow to really impact the world, that’s a fun time. And even if you’re lying to yourself a little bit,
which still gives you a purpose, that makes it fun, it seems like.
Michael Agruss: Yeah.
Brendan Shiller: It was fun.
Michael Agruss: I think you worked with some other lawyers, you were solo and then I remember always following you in the beginning, you did a lot of criminal defense work and I thought the stuff you were doing was interesting. I listened to, I think you had a 1983 case where maybe you prevailed on a couple of counts and then a couple of counts you didn’t and then you filed your Fee Petition. I remember listening, you had arguments in the Seventh Circuit.
Brendan Shiller: Well first off, let me see, I think what you do is actually more interesting than what I do. I appreciate that. In terms of… Honestly, I came out of law school and there’s a few of us who came out of law school, either who entered the semester me and you entered or graduated a semester before us, who all ended up being solo practitioners, either because they wanted to or in my case, I really couldn’t find someone, honestly, who would hire me. I think you know some of them like Jimmy DeChristofano, Adam Lazinki. I was talking to them, I’ve talked to them since day one because I was a solo practitioner since day one. And frankly, it allowed me to learn a lot quickly, but it really probably messed up some of my earlier clients in the first two or three years I was practicing.
Brendan Shiller: I’ve done over 400 Section 1983 Police Misconduct cases, I’ve done over 2,000 criminal defense cases. I actually do know the case you’re talking about though because I think it was an important case. We lost the appeal. The case was Jose Montanez versus Vincent Fico. I first became aware of Vincent Fico in 2007 when he was part of a team, a very crooked [Gain and Dung 00:09:12] team on the West Side that included Officers Napley and Daly and a sergeant, who I’m going to hold his name for, for a minute, and they would regular raid folks without probably cause. And this particular occasion, they raided a cop and his name was Marquis Cooper. He was a black cop and they didn’t know he was black, they just knew he was a black man on the West Side. They raided on a false warrant that was made up by Office Daly, who made up an informant. That’s when I first became aware of Vincent Fico.
Brendan Shiller: Between 2007 and 2011, 2010, Vincent Fico had 14 citizen complaints against him. In the middle of that, one of those citizen complaints is when he beat up Jose Montanez. Now, taking the Marquis Cooper was easy. We took that to trial, we won a big verdict, we won a big fee position, they had no problem. The judges had no problem giving me every dime I asked for in my Fee Petition for Marquis Cooper. Jose Montanez had tattoos all over his face, he had a very extended criminal history, he was a gang member. He was a violent gang member. On this one particular occasion, he kicked Vincent Fico in the groin and Vincent Fico proceeded to beat the shit out of him mercilessly.
Brendan Shiller:
The City of Chicago wasn’t going to settle that case, the judge didn’t believe we had a case because of our guy, what he did to provoke it and his extensive criminal history, but we took it to trial, Preyar was the lead on that and she won the trial. Now, the jury only gave Vincent Fico… I mean, gave Jose Montanez $2,000. $1,000 in punitive damages, $1,000 in compensatory damages, this is in 2012 by the way when the jury came back.
Brendan Shiller: Around the same time, Marquis Cooper, who all that happened to Marquis Cooper was these cops ran up in his house and they pointed a gun at him. When they realized he was a cop, they left. That was the entire Marquis Cooper’s case. Marquis Cooper’s jury gave him $585,000.
Michael Agruss: Did the city appeal that or no?
Brendan Shiller: No. Well, they filed a motion on the… The damages got reduced a little bit by the judge, but it included some punitive damages, which we never collected. We file a $965,000 Fee Petition in Marquis Cooper’s case and the city agrees to it and pays it. We file a $320,000… And remember, these are cases that litigated for three, four years and go to trial and we ran up the Fee Petition. And frankly, I’ll be honest, when we filed the Fee Petition on Marquis Cooper… I mean, on… Yeah, Marquis Cooper, we thought it’d get cut in half or a third and that’s why it got pumped up so much. We put in ridiculous hours and we had four attorneys do the trial, it was a 10 day trial, so some of it made sense.
Brendan Shiller: The Vincent Fico, the Montanez versus Fico trial was just as long. We filed $320,000 Fee Petition and the judge who was pissed off that we even won could not believe that we got an all white northern district of Illinois jury to give our guy $2,000, a gang banger with an extensive history who kicked a cop in the groin, $2,000 for getting the shit beat out of him, cuts the Fee Petition down to $110,000. So we appealed it up to the Circuit Court because our point was, look it, if you want lawyers taking… It’s easy to take the Marquis Cooper case and the truth is there was no damages in Marquis Cooper, right. Marquis’ my guy, he loves me to this day because we did such a good job for him, but there was not real damages in the Marquis Cooper case.
Brendan Shiller: The Fee Petition, fee shifting in 1983 police misconduct cases isn’t about the Marquis Cooper case, it’s about the Jose Montanez case, it’s about the guy who no lawyer will take his case because you’re going to get a jury that comes back with $1,000 in damages or $2,000 in damages, $1,000 in compensatory and $1,000 in punitive, no lawyer will take that case unless they’re incentivized through fee shifting. If you’re going to dramatically reduce the fees when just as much, if not more work in on a harder case, then you’re really going to disincentive people trying to enforce their civil rights. The truth is that Jose Montanez’s civil rights are much more important to try to enforce in that particular situation because they’re much more harder to enforce in that particular situation. That’s what the appeal was essentially.
Brendan Shiller: But here’s the interesting thing, we lost that appeal, but something else happened. Vincent Fico, who’s first citizen complaint came in Marquis Cooper’s case and that had 14 more citizen complaints over the next four years, has never had another citizen’s complaint since we won the Jose Montanez case because what we got out of Jose Montanez was $1,000 punitive. I have a picture of a check with Vincent Fico’s name on it where he signed it over to Jose Montanez. So you have this police officer who got kicked in the groin by a gang banger with a violent criminal history and he paid him $1,000. But ever since, Vincent Fico hasn’t had a single citizen complaint against him, that’s nine years going now.
Michael Agruss: Right, so it worked.
Brendan Shiller: It worked.
Michael Agruss: Right. And it’s interesting, but the reason I was listening to the case with $2,000 in damages is my consumer rights practice deals with nominal statutory damages plus a fee shift. [inaudible 00:15:02] are criminal, but the thing is, is my clients, your gang banger client with tattoos on his face is starting from behind the eight ball and my clients start behind the eight ball as well because they owe the debt and someone’s collecting on it or they owe the debt and something’s enacted on their report, no one wants to take that case, but for the fee shift provision.
Brendan Shiller: Correct. Yeah.
Michael Agruss: So anyway, I remember it was you who made very similar arguments in your case at the Seventh Circuit that we make when we do Fee Petitions as well and it’s the same thing, my judges don’t like our cases. The consumers owe the debt, they think why not just pay, how could they violate law if they’re collecting a debt. So yeah, it was similar and I remember listening to that argument because we make very similar arguments.
Michael Agruss: You know what I thought, so I followed your criminal stuff and my thoughts interesting is you and I, I don’t know, maybe four or five or six months ago, went out and got lunch. I remember picking your brain when we were talking about cases you were working on, it seems like you’re handling less of those of cases and more so getting into licensing and other issues. We were talking, which is something I want to bring up now that we can talk about is you were helping a lot of people apply for licensing for marijuana.
Brendan Shiller: Yeah. It’s really hard… I talked about… Even as cynical as I was, which allowed me to write haiku’s apparently in property class, you still have some hope in law school that’s some logic, fairness. I knew there wasn’t any equality, but there’s some logic and fairness in a court room, right?
Michael Agruss: Right.
Brendan Shiller: The pre-law school process and the law school process really tries hard to convince you there’s a culture of logic in terms of… and you need to be logical. What you learn when you get into the court rooms is that they’re arbitrary, not logical, that we’re relying on the whims and biases of prior’s effect of human beings and there’s absolutely nothing about the system that substantively removes those whims and biases, there’s just a very thin patina of apparent objectivity that gets portrayed by the courts that is not real and that’s very hard to deal with when you’re in criminal courts and you’re talking about people’s freedom.
Brendan Shiller: The complete unevenness in terms of how things get decided and the lack of certainty in terms of whether or not… what the impact on somebody’s life’s going to be, it was very hard to keep at court and to stand there and have not very smart people often and not people with good hearts almost always send people to prison when they really shouldn’t be. The last few years, I’ve really tried to get away from criminal defense. I still have a few criminal defense clients. The firm does a lot of criminal defense.
Brendan Shiller: What we’ve been doing recently for the last couple of years is trying to get those who are most impacted by the war on drugs actual licenses to grow, distribute and sell marijuana in this legal scheme. I thought a few ago, a real opportunity for actual reparations, reparations for the war drugs, reparations for the continued inequality in terms of access to power and access to capital, it hasn’t turned out that way yet, but we’re still fighting that fight. In the fall, the process opened up for 75 dispensary licenses in Illinois. There was almost 4,000 applications for those 75 dispensary licenses. We filed 201 of those applications on behalf of 23 clients, all of who were social equity in one way or another.
Brendan Shiller: But basically, what I had is basically three clients pay, [inaudible 00:19:37] but also them because they just thought they were paying and if anybody, they were just paying the right rate. Well it ended up basically paying me enough so that we could then do essentially about 100 pro bono applications, which is what we do. There’s a bunch of clients who paid just for themselves, there’s three clients who paid for themselves and for some other folks.
Michael Agruss: And you started doing the application process fall of ’19 right?
Brendan Shiller: I’ve been involved in marijuana licensing actually since 2014. I had one client who I worked with and got a medical dispensary for them in the fall of 2014. It could have been I represented their dispensary, so I’ve been active in the space since 2014 and I was really active for a couple of years leading up to the passage of the legalization bill, trying to really shape it, so I was very familiar with the bill and I was very familiar with process that got us to that particular bill, but I’ve been writing applications essentially since the summer of 2019.
Michael Agruss: Got it. It’s legal starting January 1, 2020 in Illinois. Up until then, how many medical dispensaries were there and then what’s… When we were talking about this at lunch a couple of months ago, what’s the rollout phase going to be like in Illinois?
Brendan Shiller: Illinois is really interesting. First off, there’s kind of a east coast/west coast dichotomy. It doesn’t have to do with rap. The west coast regulations have been very loose and very open, so when you go to those west coast states, there’s almost no limitations on dispensaries. This was true both when it was medical and rec. The east coast states, and I know Illinois is Midwest, but we’re going with that dichotomy for now, mostly created very restrictive licensing schemes both for medical and now as we get into rec, for rec.
Brendan Shiller: So in Illinois, when the medical bill passed, they were only going to be allowed 21 grows and 60 dispensaries. There were only going to be two licenses. The grow did everything, grew it, extracted it, infused it, produced it, processed it, everything. Ultimately after the whole application process, the competitive process and everything else that went down in Illinois, we ended up with 21 grows and 55 dispensaries. Now, that’s similar to some other east coast states, like New York and Maryland and even some other Midwest states like Ohio in terms of restrictive it was. What was interesting about illinois though is unlike those other states, Illinois actually took the lead in terms of anything east of the Mississippi, in terms of medical marijuana, so Illinois is kind of one of the and one of the most restrictive.
Brendan Shiller: We’re a city of hustlers, so something interesting happened. Over the past five years, you’ve had about nine or 10 big multi state operators develop across the country who have a bunch of licenses and a bunch of states and basically five of them, almost half of them, started here in Illinois, almost here basically in Chicago coming out of the growth of the medical program. Ultimately, where you had 20 grows owned by 14 or 15 different license holders, they’re not at least I think owned by about 11 different license holders. Where you had 55 dispensaries probably owned by about 37, 38 different entities, they’re now owned by like 16, 17 different entities.
Brendan Shiller: You have a company like Cresco who did a very good… who started in Chicago, did a very good job, one, three grow licenses, one or two dispensary licenses and then started going all over the country picking up licenses over the last five years, became publicly traded on the Canadian Stock Exchange in the fall of 2018 and then consolidated and picked up three or four more dispensaries here. Similarly, Green Thumb Industries or GTI, started here and did the exact same thing. Verona, which is known as Ataraxia, does the Gold Leaf Brands, started here and pretty much did the exact same thing. PharmaCann started here, did the exact same thing. Went into a merger with Medmen and then pulled out of it.
Brendan Shiller: You had this restrictive licensing that became even more restrictive and for all intents and purposes because of that, because so many of those multi state operators start here because they’re able to consolidate here and because they have so much political power here, Illinois became the hub of multi state operators, so you have this interesting dynamic. Illinois has always had this dynamic, this is why we’ve produced the majority of black alisanders and the only black president. You have this interesting dynamic where you simultaneously have all the activism, or not all the activism, but a lot of activists trying to create reparations and equity and equality and you have the money and the power, somehow becoming a hub here.
Brendan Shiller:
That was the confrontation that was occurring for a year, year and a half, two years leading up to the passage of the legal marijuana bill. You had power and money in the hub of the multi state operators and you had angry, righteously angry activists trying to create some equity in a system that jailed millions. The result was a law that was truly a compromise, probably as much of a compromise as you could get given that dynamic, given how much power and money the Cresco’s, GTI’s, PharmaCann’s, Verona’s and others had and given how much righteous need there was for equity, the result was basically those multi state operators are going to get no competition for the means of production, whereas, folks trying to get in the industry are going to have a huge leg on getting the dispensaries.
Brendan Shiller: This is what I mean. The laws keeps a fairly restrictive process, calls for 75 new dispensaries to open January 1 or 2021. I’m sorry, let me go back. It gives the current operators their 55 dispensaries, they get to become rec, they get to add another one and have that be adult use as well. So there’s 110 dispensaries that for a year get a monopoly on the recreation in 2020. Those are mostly multi state operators and a handful of independents.
Michael Agruss: Right, so the fifth… Let me just cut off for one sec. The 55 that were here prior to 2020 for medical, they now get medical and as you call it, rec. And then starting in 2020, they’re going to add an additional 75 licenses, which is what you helped out.
Brendan Shiller: No Phil, it’s a little complicated. So those 55 license holder who are mostly represented by the hub of the capital, the means of production, they get the only dual licenses, which are real valuable, medical and recreation, and they get a second recreation license that they get to locate somewhere else. Now, all of all them get to open up and sell entirely for 2020, that’s 110 licenses, dispensaries that get to sell in 2020, not all of them are opening up and they’re still getting there. And then there’s three more rounds. January of 2021, 75 licenses come on board and those are the ones that we applied for in the fall and they’re going to announce on May 1st. The way the scoring is, people outside the industry have a real leg up.
Brendan Shiller: In 2022, January 2022, they’ll be another 110 licenses… Or yeah, 110. So if you do the math, that brings you to about 295. In 2023, they’ll be up to another 105 licenses, so it won’t get up to 500 licenses. To be clear, that’s still a fairly restrictive licensing scheme in terms of dispensaries. Even if you got all the way to all 500 dispensaries, that’ll be less than the number of dispensaries in Colorado and Washington and Oregon and Arizona, all states that have a bigger population. I mean, a smaller population than Illinois, so it’s still fairly restrictive. The good news is those 390 dispensary licenses that are on their way over the next three years, I’m sorry, 290… Yeah, 390 that are on their way over the next three years, will likely mostly go to people who aren’t in the industry now and who have impacted by the war on drugs or come from communities that have been impacted by the war on drugs.
Brendan Shiller: The bad news is, is that [inaudible 00:28:48] grows currently and the people who are actually growing and processing is still the multi state operators. There are, which is the license applications we’re writing now, craft grows and infuser licenses. They’ll be 40 of those, 40 each, on January 2021 and then 60 each January 2022 and you get to have up to 5,000 square feet of grow under lights. But if you own a full grow, you get to have 110,000 square feet of grow under lights. I don’t know how much in detail you want me to get, but the point is, is that one grower has more square footage to grow their plants than all 40 craft growers combined.
Michael Agruss: How did companies like Cresco and what was the other one? Green Leaf.
Brendan Shiller: Green Thumb Industry, GTI.
Michael Agruss: Yeah, how did they all end up you said here in Chicago or starting in Chicago? Where are they from?
Brendan Shiller: No, they’re from Chicago. That’s what I’m saying, it was an unique situation where you just happen to have a very restrictive licensing in Illinois. Illinois was, on the east of the Mississippi was one of the first states out the gate with medical marijuana east of the Mississippi. You have a lot of capital in Chicago and you have a lot of creative folks and hustlers in Chicago, so basically what happened is because it was so restrictive for medical licensing, it was an opportunity to develop and grow multi state operators here. Don’t get me wrong, there’s multi state operators everywhere. A bunch are coming out of California and Nevada and other places, but it’s just interesting that Illinois created a good portion of them.
Michael Agruss: Got it. And so the 4,000 applications that were submitted, what end of ’19, beginning of 2020?
Brendan Shiller: No, they were all sub… Yeah, between December 15th and January 2nd just past is when they were submitted.
Michael Agruss: Got it. So the next several is when they’re going to have up to 500 licenses, it’s all going to be coming from that pool of 4,000 applicants?
Brendan Shiller: No, no, there’s another application process… So those 4,000 apply for the 75 licenses.
Michael Agruss: Wow.
Brendan Shiller: We’re going to win them or not and that’s going to be announced on May 1st. There’ll be another application process on October that opens up on October 1st of this year that’ll close on January of 2021 and that’ll be for the licenses in 2022. And then again the following year, the same thing.
Michael Agruss: Got it. What’s the cost for someone to submit an application?
Brendan Shiller: The filing fee’s only $2,500 if you qualify social equity, $5,000 if you don’t. It’s more than an ocean, as they say, to write one of these applications. Dispensary application was three to 500 pages, these craft grow applications are like 1,000 to 1,500 pages. If you go to a downtown firm, they’ll charge 150 to $200,000. If you can find a application writer and lawyer who’s in the neighborhood, who’s reasonable and is charging market rates, probably 75 to $100,000. If there are incubators, programs all over the place, who if you get through a competitive process, they’ll help you write one application pretty much for free. There were some lawyers who were doing the applications for as little for 25 to $50,000.
Michael Agruss: Got it. Okay.
Brendan Shiller: There’s other costs. There’s security costs, architectural costs and things like that, but that’s the main cost.
Michael Agruss: When do you think it’ll be like a 7-Eleven or the grocery store like you can buy beer?
Brendan Shiller: I don’t know. I would have said six months, I would have said in five years. I think everything as it relates to retail is up in the air right now because of COVID, so I don’t know.
Michael Agruss: Got it. Do you think it’ll be legal federally first before you can get it at 7-Eleven?
Brendan Shiller: Oh yeah, it’ll definitely have to be legally federally first Phil. Yeah.
Michael Agruss: Got it. When do you think that’ll happen?
Brendan Shiller:Well, that’s what I was saying, that’s why I thought… I contemplated those things right? Here’s what’s going to happen. As soon as it goes legally federally, all of the big boys get involved and wipe out everybody else. That’s when big pharma and big retail and big liquor and big tobacco get involved. Originally, I thought that was about… it would happen federally in five years. Middle of next… whoever wins now, middle of their term, something like that or middle of the term after that and then automatically within a year or two, you’d get the consolidation.
Brendan Shiller:I think it’s a lot more likely now. And frankly and in interesting ways, probably better for the masses that you won’t get full federal legalization any time soon. I think maybe I’m reading too much into it, but I think one of the million residues of COVID-19 will be more of a decriminalization, for a variety of reasons I think this, more of a decriminalization of marijuana and not a full federal legalization and that now may not happen for 10 or 12 or 15 years. I actually think that may be a good thing if it doesn’t.
Michael Agruss: Got it. We started off this podcast and you just mentioned COVID-19. One of the other topics I want to switch gears with you and talk to you about is bail and jail and what to do and what’s going on. I’ve been reading some of the articles you’ve been posting on social media. What is Cook County doing? What’s going on nationally? What do you think should be done as far as people who are in jail right now and dealing with COVID-19 and Coronavirus?
Brendan Shiller: You’re raising three different questions. First, let’s start with the question of cash bail. In Cook County now, we’re down to about 4,200 inmates. Three years ago it was 10,000. At the start of this pandemic here when it first hit Cook County, it was maybe 5,200 or something, so it’s been reduced. You still have something like 2,500 of those inmates have a cash bail that they can’t post. What does this mean?
Brendan Shiller: It means it has no reflection whatsoever what their crime was that they’re accused of, what their likelihood of appear in court is, whether they’re a danger to the community, it only means that they don’t have enough zeros in their bank account because if I get arrested on a gun charge and get a $5,000 bail and a homeless guy gets arrest on a gun charge and gets $5,000 bail, I’m going to be out because I can come up with $5,000.
Brendan Shiller: This is the problem with cash bail, cash bail does nothing except punish free trail, punish before there’s any finding of guilt, somebody who doesn’t have enough money in their bank account. So as a matter of course, whether there’s COVID or not, I firmly believe there should no longer be cash bail. The federal system for the most part makes a determination, are you a flight risk, are you a danger to the community? If you’re neither of those, you get out. Maybe we secure it, maybe we put a deed on your house, maybe we do some house monitoring, maybe we do some reporting, maybe we do what call a third party custodian, for the most part, that’s how the federal system works. there’s no reason the state system shouldn’t work like that as well. There’s nobody who should be jail simply because they don’t have enough money if their bank account and the vast majority of people in jail in this county and across the country are there because it’s a cash bond and they can’t afford it.
Brendan Shiller: If they’re a danger to the community or they’re a flight risk, you can always just give them a no. You start with the baseline that even before COVID, a bunch of those people shouldn’t be in there. I want to [inaudible 00:37:43] this before I move on to the second part of your question. To me, it doesn’t matter whether we’re talking about a violent crime or nonviolent crime and folks make distinction and I think that’s bad mistake because normally if it’s a cash bond, then whether I commit the violent crime and i got the money, I’m going to be out. When you’re talking about people who have not been proven guilt, adjudicated guilty [inaudible 00:38:10], if you truly believe based on… if the judge truly believes background and everything they know about the case they’ve been charged with now that are a danger to the community, then they can put a no bond on them.
Brendan Shiller: Regardless of whether its violent or nonviolent, that’s not the distinction. The question is whether it’s no bond or cash bond because no bonds cut across the board equally, cash bonds do not. All folks on cash bonds should have been released anyway, should be released because there shouldn’t be no cash bonds, but then as soon as COVID came along, it should have been released. Here’s the problem, so the third part of your question is what have they done in Cook County? I actually know a lot more about the behind the scenes machinations, so I’m limited in what I can say.
Brendan Shiller: I think for the most part, everybody’s heart is in the right place, but Cook County is a huge bureaucracy. They couldn’t figure out a way to do a mass release, at least the courts couldn’t figure out a way to do a mass release, I think the sheriff probably could have done a mass release, but it threw it back on the courts and everybody made it a hot potato. There was all sorts of negotiations behind the scenes and the result was this process where they’re bringing up a bunch of cases at any given time and they have a backup judge. I got a couple problems with what the Cook County process was, aside from the fact that the sheriff just didn’t do a mass release.
Brendan Shiller: The back up judges that are hearing these new bond release cases are the former bond judges that got removed from bond court three years ago when we did bond reform. They’re not releasing as many folks who would be released if you had the current judges, who are the judges who in believe in bond reform. I think the state’s Attorney who’s somebody who I worked really hard to help get reelected is still acting like a state’s attorney. I think she could have agreed to releasing a lot more than she has agreed to releasing. Like I said, I think the sheriff could have done a lot more. We’ve done some stuff in Cook County that’s been yeoman’s work, like 24 hour round the clock work being done by the activists and by the Public Defender and by some of the private attorneys.
Brendan Shiller: But you know what, if you’re grading on curve and you look across the country, there’s a couple of B pluses in the country, like in Colorado. They’ve gotten close, right? They get a B plus. There’s a couple other B pluses. There’s nobody who’s doing what they should be doing, which was release everybody who’s on a cash bond period. It would have been smart to release everybody who’s on a cash bond because it saves community resources. You’ve now got more than 300 people in Cook County jail who need medical services. Well, you know who that hurts? That hurts you if you’re trying to [inaudible 00:41:09] Rush or any other hospital immediately around because those folks now need to get those medical services and you’re not going to have access to it.
Brendan Shiller: Every jail, every jail in country should have released anybody who is on a cash bond. The no bails are harder, I’ll admit that because most no bails… because if you couldn’t have bail it’s either because you’re a risk of flight or because you’re a danger to the community. But I’ll say this, if you’re no bail and the only reason is because you’re a flight risk because you missed a court date, then I think they should have been released too. And then what you’re left with is the utmost, basically the folks who are dangerous to the community, are true risks of flight, R. Kelly, and then you would have had enough space in the jail to actually socially distance, to humanely incarcerate them if there is such a thing and then you could have had a different dynamic. We haven’t done that anywhere in any state. Colorado came the closest and the result is that in almost every state outside of meat packing places in some of western states, it’s the jails and prisons that have become the epicenter.
Brendan Shiller: And so now, we’ve done three things. We’ve basically create a death sense for folks, we’ve overburdened our health care systems in and around those particular jails and prisons and we’ve made every correctional officer… We’ve pretty much ensured that every correctional officer’s going to get sick as well.
Michael Agruss: With federal funds, there’s no cash bond. It’s either… Tell me the difference.
Brendan Shiller: Yeah, there’s no law against there, there’s just a culture. With federal cases, there’s more of a culture. The truth is that the laws aren’t that different, there’s more of a culture that says, “If they’re a flight risk or if they’re pose a danger to the community, they get a no bond. If not, we’re going to release them on bond and we’ll give them some conditions like drug testing, maybe mental health, but we’re not going to have them post cash. You almost never post cash. I have posted cash once for a federal client, it was a white collar crime and the government argued strenuously that he was a flight risk because he had ran off to India to avoid prosecution for a couple years. It wasn’t a completely unreasonable argument on their part.
Brendan Shiller: After my fourth bond review motion, we finally got him out, but in that one case we did have to post a couple hundred thousand dollars. On all the non white collar crimes, the drug crimes, the gun crimes that go up in federal court, cash is never a consideration. They’re released or not. You’re either released with conditions or not. Now don’t get me wrong, I’m talking to the lawyer for the last 15, 20 minutes, the activist part of me, and I’ve really been organized over the last 10 years by the young activists in Chicago, by people who are 10, 20 and even 30 years younger than at this point.
Brendan Shiller: I’ve come to believe in prison abolition, not in the sense that I think you can knock down every prison now, but in the sense that I think that if you were to do things right, if you were to provide all of the mental health that folks needed, all the… if you were to decriminalize drugs, drug usage and if you were to decriminalize drug possession and then provide drug treatment and if you were to provide basic needs to folks, that there’s a path to rally abolishing jails and prisons and that the system we’ve used for the last few hundred years just doesn’t work and there’s nothing… There’s nothing empirical that imprisoning somebody or jailing them pretrial deters or prevents crime, either from them or other people.
Brendan Shiller:
In fact, all of the evidence of the last 500 years, all the empirical evidence is that it’s the exact opposite. When I talk to young activists, maybe it’s… if we don’t accept anymore that prison and jail have to be a reality and we say maybe there’s a reality that doesn’t include prison and jail, maybe we can become creative enough to figure out how to get to that reality. So as the lawyer, I lay out all the parameters and what I think should happen. As the activist, I think all of them should have been released.
Michael Agruss: What did Colorado do that you think you would give them a B plus?
Brendan Shiller: They released far and away… They released almost 40% of their pretrial detainees, so they released more than anybody else.
Michael Agruss: Got it.
Brendan Shiller: You got to give somebody a B plus, right.
Michael Agruss: Totally. Yeah right, I agree. But we’re talking about cash bond, that’s one of the nonprofits at the Westside Center for Justice, right?
Brendan Shiller: Yeah, so there’s two… Well actually, there’s three. There’s the Bail Project, which is a national bail project that, this is in every major city that bails folks out, that has a bunch of money behind it. They’re at the Westside Center for Justice. Locally, there’s the Chicago Community Bond Fund, which is also tied in with the coalition and money bail. The Chicago Community Bond Fund also bonds folks out not nearly as prolifically as the Bail Project, but they’re also much more active in terms of organizing folks in the community and trying to change the system. So all three of those are… the Coalition and Money Bail, the Chicago Community Bail Fund and the Bail Project are all nonprofits amongst the main profits located at the Westside Center for Justice.
Michael Agruss: Got it. I want to talk to you about one other topic that I believe you are pretty actively involved in. Once again, I was following what you were doing on social media about Coalition to Dump Matt Coghlan.
Brendan Shiller: Okay, so another nonprofit at the Westside Center for Justice is the Judicial Accountability Project, which consists of the Judicial Accountability PAC and File 1C4, which is the Judicial Accountability Project, so I formed that PAC and that project a little bit more than two years ago. The truth is, before history gets rewritten, we’ll have the record here because eventually I might have to rewrite history. The PAC was actually formed initially in February of 2018 to help a judge who a bond reform judge, who was having a very difficult in a sub circuit, so I formed that to put about $15,000, $20,000 to help him out on independent expenditure and it worked and he won. That was the primary 2018. And then after that, a couple different people put in my ear, nobody’s ever lost a retention in over three decades, that’s not a good thing.
Brendan Shiller: That PAC then when it first formed was just me, honestly. That PAC then identified 10 or 15 board members with some means and we got together and then we created a coalition with a bunch of community groups, but that become the Coalition to Dump Matt Coghlan. And frankly, Coghlan was a middle of the road judge at 26 and California. To me, Coghlan was the epitonic, quintessential judge at 26 and California. For most criminal defense attorneys, that’s great. I get along with him, he’s a decent guy, he’s an average judge. For me at that point, that begun to represent if you’re the average guy at 26 and California, you’re terrible. The Coalition targeted the average guy, not necessarily the worst guy at 26 and California and it targeted the average guy frankly because we did enough background work and had enough background conversations to realize that he was probably of the folks who were the average guys at 26 and California, the easiest to target.
Brendan Shiller: He had the least amount of friends just because he didn’t do any of the political work that some other judges do.
Michael Agruss: And it didn’t have anything to do with his background making him… When I was reading some of the stuff, it seems like he’s an easy target based on his background and what he did.
Brendan Shiller: What I’m trying to tell you is he’s the average guy, almost every guy at 26 and California had that background, so I’m getting to that.
Michael Agruss: Oh, okay.
Brendan Shiller:
We targeted him because he was the easy guy. Now, Matt Coghlan as part of a group of lawyers who came up from the state attorney’s office in the late ’80s and early ’90s and who actively did work to protect Jon Burge and Rey Guevara, two very dirty cops, one more notorious than the other. Who are some of the people that Coghlan worked with at the state attorney’s office, first in felony review and then later on who also at the time, Tom Byrne, Chuck Burns, Margaret Stively Boyle, Nick Ford, you know what all of them have in common? They were all judges at 26 and California. It was about 10 judges at 26 and California who actively worked to protect Burge and Guevara as state’s attorneys during the late ’80s and early ’90s.
Brendan Shiller: Three of them were part of what was called the cleanup crew at felony review. When a Burge or Guevara came up and it was obviously dirty, the young ASA left out and the clean up crew came through to make sure everything got covered up. That’s your average judge at 26 and California. It’s changed over the last couple of years actually because when we took out Coghlan, a couple that retired, a couple more retiring and some other good judges got put over, so Coghlan as a state’s attorney actively participated in the covering up of some false confessions and wrongful convictions and what is a, in my opinion, a cause and effect, a proximate cause of people going to jail for decades who were innocent, maybe not innocent, who weren’t guilty of the crime that they were charged of being convicted of.
Michael Agruss: Right.
Brendan Shiller: But when I tell you that there’s a long list of judges who fit that, there really is. When the coalition came together, we looked at those long lists of judges and Coghlan was the easiest target and that’s who the coalition went after. The point was not, the reason I went through that whole story is the point really wasn’t Coghlan, the point was to send a message to the rest of the Judiciary. We picked Coghlan to send a message. There’s a judge who is a state’s attorney in 1992 who got a false confession on a Burge case and he signed off on all the state’s attorney work as Nicholas Ford. He was the judge who heard the post conviction petition on this 10, 15 years later. By that time, he became Judge Nick Ford. He pretended he wasn’t sure if ASA Nicolas Ford was the same as Judge Nick Ford and he refused to recuse himself because he said the record wasn’t clear that it was the same person and then he denied the post conviction petition, said that the confession was obviously well taken and not coerced.
Michael Agruss: Wow.
Brendan Shiller: That’s a judge who is on the bench at 26 and California, who retired on April 11, 2019, six months after the Coghlan race because a message got sent to him.
Michael Agruss: Well, he knew he was next right?
Brendan Shiller: Yeah. We’re back, the Judicial Accountability PAC is back. We have a file 1C4, we’re talking to our partners and our coalition members and we’re going to identify, we have a list, we have a short list, and the board members are talking. Tragically, one of the board members got murdered a couple of weeks ago, his name was Thomas Johnson, he was an Oak ParK attorney. He kind of had his hands in everything and nobody knew about him. He quietly advised the Chief Judge, he was a police hearing officer, so I obviously had a relation with the Mayor who used to be the president of the Police Board. He did a variety of things for folks like LZ Keeghan Bonham and Peter Holstein, developers that have had a huge impact on the scene, worked for… He had his anywhere. He passed and that was very tragic.
Michael Agruss: Yeah, I saw that article. His partner Jeff Gilbert, he was defending one of the most contentious personal injury cases that we’ve had in my office right now where someone was on a horse and got injured. It ran through a 57 and Markham and there’s probably, at one point, there were 15 plus defendants in the case and he, Jeff Gilbert, represented one of the families who owned Cinco Blanco’s Arena down at Rancho 57 and Markham, so Jeff… We just resolved the case with his clients, but Jeff and I, he’s been in my office, I’ve been at his office, tons of daps, I mean, the case has been litigated, scorched earth for three, four years now. So when I saw your post and read about them, I mean, it’s awful. Super tragic what happened. My neighbors here in Elmhurst is a advertising and marketing guy and his boss was very close friends with that couple. They lived down the block from them in Oak Park, so anyway. It’s very sad.
Brendan Shiller: Apparently I have a 12:00 noon meeting I’m supposed to be on, Zoom meeting.
Michael Agruss: Fair enough.
Brendan Shiller: Sorry.
Michael Agruss: You know what’s funny, I always think these are going to be 30 minutes and they’re always much longer. Can I end it with a handful of… I’ve got rapid fire questions I ask for everyone and it’ll take 60 seconds.
Brendan Shiller: Sure.
Michael Agruss: What’s your favorite animal?
Brendan Shiller: My favorite what?
Michael Agruss: Animal.
Brendan Shiller: Dog I guess, I don’t know.
Michael Agruss: What app do you use most?
Brendan Shiller: Facebook.
Michael Agruss: What’s your favorite food?
Brendan Shiller: Yogurt.
Michael Agruss: Yogurt, huh.
Brendan Shiller: Yeah.
Michael Agruss: What’s your perfect vacation?
Brendan Shiller: Vegas before the COVID, a week there of playing poker during the day, maybe late into the night, so I can win a tournament and then going out and finding some marijuana and a loose woman.
Michael Agruss: Did you see the Mayor’s latest interview?
Brendan Shiller: Yeah, she’s nuts.
Michael Agruss: It’s painful. Finish this sentence, weekends are for…
Brendan Shiller: Weekends are for poker, drugs and sex.
Michael Agruss: And if you weren’t a lawyer, what would you be?
Brendan Shiller: What type of lawyer? If I weren’t a lawyer. Oh, you said if I weren’t a lawyer.
Michael Agruss: Sorry. Yeah, if you weren’t a lawyer, what would you be?
Brendan Shiller: I don’t know, that changes every day. I’d probably try to own a strip club.
Michael Agruss: And on that note, I appreciate you doing this. I know we tried scheduling something in person, so once all this social distancing is done, I’d love for you to come to my office and we can continue talking. I appreciate your time and thanks for doing this.
Brendan Shiller: Absolutely, thank you.
Michael Agruss: Awesome, take care. Have a good weekend.
Brendan Shiller: All right, you too. Bye.
Michael Agruss: Bye-bye.
