The Work

November 26, 2008 3:29 PM

McDermott's Jeff Stone Takes a Turn as Pro Bono Prosecutor

Posted by Brian Baxter


Is there such a thing as a pro bono prosecutor? Yes. Just ask McDermott Will & Emery's Jeffrey Stone.

Now head of McDermott's trial department, from 1986 to 1991 Stone worked in the U.S. attorney's office in Chicago, where he eventually became deputy chief of the office's criminal receiving and appellate division.

Earlier this year, Stone received an impromptu call from U.S. district court judge Matthew Kennelly. The judge wanted to know if Stone might consider slipping on the old catcher's mitt again to represent the U.S. government in a contempt case. Stone, who hadn't been in courtroom as a prosecutor for over 17 years, was intrigued.

"I've known [Judge Kennelly] for a long time," he says, noting many appearances before Kennelly on various cases. "[W]hile this certainly wasn't the crime of the century, I'd never [been a pro bono prosecutor] before so it seemed like something worth pursuing."

Kennelly decided to invoke a little-known federal law that allows the court to appoint an attorney to prosecute a case if the government itself declines to do so. The case involved the sister of a defendant who had threatened a witness outside court during her brother's gang-related criminal trial. Kennelly cited the individual, Shawana Williams, with contempt of court and obstruction of justice.

Federal prosecutors decided not to prosecute Williams, so Kennelly commenced his search for special counsel. As Stone sees it, prosecutors didn't want to go after her because of the complicated relationships between cooperating witnesses and the potentially uncomfortable position of calling defense attorneys from the case against her brother to testify. (First assistant U.S. attorney Gary Shapiro did not respond to requests for comment.)

So Stone took the matter on, pro bono. He believes it's a first for a pro bono prosecutor appointment in Chicago.

Kennelly provided Stone and fellow McDermott litigation partner Jocelyn Francoeur with only a basic rundown of the facts surrounding the incident so that he could adjudicate the case without conflict. Stone and Francoeur's own conflicts check was a quick one, since the criminal matter didn't affect the lawyers' mostly corporate clients.

The two went to work, talking with prosecutors about gaining access to records and developing a trial strategy. (Francoeur is a member of the firm's pro bono committee.) Procedural delays in the case meant that Stone and fellow McDermott litigation partner Jocelyn Francoeur had several months to prepare for their criminal contempt trial.

In a day-long bench trial before Kennelly on November 10, four witnesses and the defendant testified. Stone and Francoeur were prepared to call one of the prosecutors in the related gang trial as a witness, stone says, but ultimately didn't.

Later that week, Kennelly sentenced Shawana Williams to three days in jail for criminal contempt. Stone says the defendant, who was represented by court-appointed counsel, is mulling an appeal.

So how did it feel stepping back into a prosecutor's shoes?

"It was an interesting psychological experience," Stone says. "Since 1991, I've probably spent at least 50 percent of my time looking for defenses or mitigating circumstances. On an emotional level this was a more difficult balance than I thought it was going to be."

But, Stone says, he'd do it again, if asked.

"Whenever a judge asks you to represent the court, I think most lawyers would be honored," he says. "And now I understand why judges take it very, very seriously when someone challenges the authority of the court. We just wanted to make sure we fleshed out all the facts."

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