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The Critical Importance of the |
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Ethical Capital Litigator |
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Presented atCapital Trial AdvocacyF O R T H E D E F E N S EMay 12-15, 2008 |
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The materials included in this document cover Consideration of Ethical and Professionalism Issue Our website includes a host of other topics and issues, as Action Motions 2YK8 and Conflictineering 2YK8 .Visit the material on the Internet for an full array of materials and links. To enter the website go to either of the following sites. http://www.millardfarmer.com or http://www.goextranet.com After reaching either of the above websites, go to the right column of the first row of the website and locate Seminar Materials, then proceed as follows. (Under the top right column heading) Seminar Materials,
(Click on) Texas 2008 After clicking on Texas 2008, you should reach the page asking for your Username and Password. Use the following username and password. Username Texas Password Seminar If you cannot negotiate the Login screen, it is probably because you do not have java scripts enabled on your computer. As a workaround, you can either install download java at the following URL. http://www.java.com/en/download/index.jsp If this causes trouble, you can insert the following URL and enter the website. http://www.goextranet.net/Seminars/TX08/AgendaAll.html If you encounter additional troubles, feel free to call 404 688-8116 or e-mail millardfarmer@millardfarmer.com Preface
http://www.youtube.com/watch?v=-GG7sj2APpc Ethics The American Bar Association and the bar associations for each state have attempted to define both ethical and unethical conduct for lawyers. While some of the directives are very specific, most of the directives have required years of opinions, which interpret the directives, for the directives to become meaningful and somewhat enforceable. Frustrated that the ethical rules governing lawyers were not filling the bill (read as: a miserable failure) the then Chief Justice of the Georgia Supreme Court spearheaded efforts to establish a separate commission on “professionalism,” which most lawyers understood to be a super-good-grade form instruction directing decent human behavior by lawyers. Before engaging in this ethics/professionalism communication we should distinguish between what some prefer to call “ethics” and others distinctly identify as “professionalism.” Professionalism[1] The altruistic and utopian goals of professionalism for the legal profession have not been as definitively identified as have the somewhat similar ethical goals. In fact, the connotation of professionalism within the legal profession is synonymous with the things that we expect of our opponents, as opposed to restrictions upon our conduct. Justice Stewart, in acknowledging that pornography was difficult to define when attempting to separate it from First Amendment protections, stated in his concurrence in Jacobellis v. Ohio, 878 US 184 (1964) that, “I know it when I see it.” “Know[ing] it when [you] see it” may be close enough for government work, but as lawyers, who use words as the primary tool of our trade and as the transmission wire we use to connect to the brains, and thereby the thought processes, of others, we must do better in attempting to define both ethical conduct and professionalism. The Supreme Court of Georgia Chief Justice’s Commission on Professionalism, in an attempt to explain the need for separate emphasis on professionalism, penned the following. If successful, the professionalism effort in Georgia will inculcate a habit of talking with colleagues and engaging in dialogue that is essential to a healthy professional life. They also will encourage the habit of reflection (or the "stop and think" rule of morality). They will acquaint lawyers with the harsh realities of the profession, but equip them with a variety of strategies for coping with these realities. They will also deepen one's awareness of a lawyer's particular professional situation and can provide a sense of empowerment or control over a professional career rather than a passive acceptance of an untenable situation. They should expand the horizons of participants with respect to the richness and variety of the profession and the range of interests compatible with practice in the profession. And lastly, they can stimulate the normal imagination about the potential of a professional life. Chief Justice's Commission on Professionalism, p. 5. For some years now, many have talked of the need to restore to American's lawyers a sense of professionalism, a sense of the highest aspirations that the legal profession in America has, at its best moments, embodied. But sadly, talk about professionalism has tended to remain only talk. In marked contrast, however, Georgia's Supreme Court and State Bar have in fact acted to promote professionalism. They have devoted considerable time, energy, and funding to their shared project of raising professionalism standards. Although much has been done -- a new CLE professionalism requirement, three professionalism convocations, and a new professionalism Commission -- much more remains to be done. But whether we speak of a study, CLE seminars, or the Commission itself, we are always speaking of bold, imaginative projects which can serve as models for the legal profession throughout the United States, carrying with them profound implications for the life of that profession. The Commission can accomplish its charge, and in the process, start to accomplish professionalism's overriding goal: 'knowledge and skill in the law faithfully employed in service of client and public good.' Professionalism is about both principles and character. All lawyers would prefer that their practices be character-building rather than corrupting. They want to be able to achieve a good life in the practice of law. That is much more a character issue than one of principle. Honesty is a moral principle (and dishonesty is a CPR violation - see Standard #4), but it also is an issue of character ('I should not lie because lying makes me a liar, and being a liar is a bad way to live'). Professional behavior, however, is not simply a matter of character and principle; it is a matter of choice and decision-making. Thus, the issue is not all or nothing. It is not a question of being or not being ethical. It usually is not a question of right or wrong. It is a question of doing or not doing the ethical or professional thing. In our high pressure world, it may not be possible to act professionally all the time. It is, however, possible and important to act more professionally more often. Professionalism discussions are too often framed as simple issues of rule-following or rule-violation. But the real issue facing lawyers as professionals is developing the capacity for critical and reflective judgment. The CLE sessions should strive to cultivate reflective judgment about the practice of law and assess how well current practices are serving the legal profession, and the system of justice in light of the traditions of our practice. State of Georgia Chief Justice's Commission on Professionalism, p. 8. The American Bar Association, at http://www.abanet.org/cpr/professionalism/profcodes.html has a list of Professionalism Codes, which provide helpful research starts for professionalism issues. These websites follow. Professionalism Codes / Reports
Texas and most states modify the ABA Model Rules of Professional Conduct; however, understanding the model rules is a good starting point in understanding restraints placed upon the conduct of lawyers in addition to the restrains upon other persons and occupations. The ABA explains as follows about the model rules. The Model Rules of Professional Conduct are intended to serve as a national framework for implementation of standards of professional conduct. Although the Commission endeavored to harmonize and accommodate the views of all the participants, no set of national standards that speaks to such a diverse constituency as the legal profession can resolve each issue to the complete satisfaction of every affected party. Undoubtedly there will be those who take issue with one or another of the Rules’ provisions. Indeed, such dissent from individual provisions is expected. And the Model Rules, like all model legislation, will be subject to modification at the level of local implementation. Viewed as a whole, however, the Model Rules represent a responsible approach to the ethical practice of law and are consistent with professional obligations imposed by other law, such as constitutional, corporate, tort, fiduciary and agency law. ABA Model Rules http://www.abanet.org/cpr/mrpc/mrpc_toc.htmlModel Rules of Professional ConductTable Of ContentsCommission on Evaluation of Professional Standards Chair's Introduction Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000") Chair's Introduction Rules Rule 1.0 Terminology Client-Lawyer Relationship
Rule 1.1 Competence Counselor
Rule 2.1 Advisor Advocate
Rule 3.1 Meritorious Claims and Contentions Transactions with Persons Other Than Clients
Rule 4.1 Truthfulness in Statements to Others Law Firms and Associations
Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer Public Service
Rule 6.1 Voluntary Pro Bono Publico Service Information About Legal Services
Rule 7.1 Communication Concerning a Lawyer's Services Maintaining the Integrity of the Profession
Rule 8.1 Bar Admission and Disciplinary Matters
The Cornell Law School Legal Information Institute, better known as LLI, has a web presence second to no other law school and few other legal sites. http://www.law.cornell.edu/ In its summary of the law of lawyering in Texas, which was prepared by Vinson & Elkins, of Houston, Texas a few, but certainly not all of the distinctions in the Texas Ethics Rules are identified as follows on the LLI web site. http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/tx-narr/query=[jump!3A!270!2E1!3A104!27]/doc/{@21}? Texas Legal Ethics
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PEOPLE OF THE STATE OF ILLINOIS, v. [DEFENDANT] - [DEFENSE COUNSEL] - CONTEMNOR |
Gen. No. ____________ |
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OMNIBUS PRE-BRIEFING MOTION TO IDENTIFY ISSUES, |
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DETERMINE FACTUAL DISAGREEMENTS BY OBTAINING FROM THE PEOPLE |
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DISCRETIONARY ADMISSIONS, TOGETHER WITH |
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STATUTORILY AND CONSTITUTIONALLY MANDATED ADMISSIONS, ALL |
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TO NARROW THE ISSUES BEFORE THE COURT |
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WHILE OBTAINING FOR [Defense Counsel] HIS MANDATED RIGHTS |
[Defense Counsel] seeks relief as requested in this motion. The type of relief needed by [Defense Counsel] from the Court will depend on the degree of voluntary compliance by the prosecution and Judge [Circuit Judge] with the request made here. This motion will not be noticed for hearing until informal attempts fail to satisfy the request made here.
Momentarily, the conduct of [Defense Counsel] appears to be the problem here; in reality, the issues are more complex.
Preface
[Defense Counsel], on July 26, 1994, filed a motion seeking a wide range of relief. The relief requested in that motion ranges from an annulment of [Defense Counsel]'s contempt conviction to a hearing with an opportunity to present evidence. The Court, pursuant to an agreement of the parties, has entered an order granting leave for the Prosecution to submit a response to that motion by August 31.[2] This response by the State should be a memorandum of law and a statement of its position on the factual issues.
The purpose of this omnibus motion is to first focus the State on the issues as perceived by the attorneys for [Defense Counsel] and then determine the extent of all relevant disputed factual and legal issues. The attorneys for [Defense Counsel] also bring this motion to obtain discretionary, together with statutorily, and constitutionally mandated discovery. These systemic changes are sought to balance fairness.
[Defense Counsel] has sought no civil, administrative, retaliatory or other type of action against any of the parties involved in this criminal contempt. No actions, other than in this Court, will be initiated until there is an unfavorable disposition here. Furthermore, no one on behalf of [Defendant] has brought either an administrative or regulatory complaint, nor has anyone attempted to obtain either monetary damages or injunctive relief under 42 USC '1983 for [Defendant].
[Defense Counsel] assures the prosecution, if the State now moves, and the Court agrees, to annul this contempt charge, [Defense Counsel] will abandon any potential ancillary actions. This action does not have to be litigated by the prosecution to protect anyone from sanctions.
I. Factual Analysis
These proceedings can most efficiently be brought to a disposition consistent with the Constitution and applicable laws if the areas of factual dispute between the parties are clarified. The following facts are either known or strongly suspected to be true. For each enumerated statement of fact, the State should either admit or deny that enumerated fact and, if it is denied, the State should specify in what manner the enumerated fact is incorrect. Thus, the areas of agreement and disagreement on factual issues can be unconfusingly narrowed.
1. Judge [Circuit Judge] presided at the proceeding at which [Defendant], represented by [Defense Counsel], sought to withdraw his guilty plea. Judge [Circuit Judge] also accepted the guilty plea and later sentenced [Defendant].
2. Judge [Circuit Judge], earlier in the proceedings against [Defendant], ordered a mental and psychological evaluation. Judge [Circuit Judge] read this evaluation of [Defendant] at some time before the acceptance of his guilty plea.
3. [Assistant State's Attorney], present at the proceeding to withdraw the guilty plea of [Defendant] and was the same prosecutor who represented the State at the guilty plea proceedings and sentencing of [Defendant].
4. [Assistant State's Attorney] read the mental and psychological evaluation of [Defendant] at some time before the Court accepted his guilty plea.
5. Both Judge [Circuit Judge] and [Assistant State's Attorney] knew, at the time of the hearing on the motion to withdraw the guilty plea, that the admonishments given [Defendant] at his guilty plea proceeding were no different than [Defense Counsel] had alleged and argued at the hearing on the motion to withdraw the guilty plea.
6. At the hearing on the motion to withdraw the guilty plea neither Judge [Circuit Judge] nor [Assistant State's Attorney] took issue with [Defense Counsel] about his representations of the type of admonishments Judge [Circuit Judge] had given [Defendant].
7. [Defense Counsel] alleged and argued correctly the type and content of the admonishments given [Defendant].
8. [Defense Counsel], in addition to being correct, had a good faith basis for believing as true the facts that he alleged and argued at the hearing on the motion to withdraw the guilty plea.
9. The transcripts of the proceedings at the guilty plea and later at the sentencing of [Defendant] support the correctness of [Defense Counsel]'s allegations and argument that [Defendant]'s admonishments were not given with any special care different from those given by Judge [Circuit Judge] at a guilty plea proceeding for a person of normal intelligence and normal psychological functioning.
10. Never after the initial hearing on the motion to withdraw the guilty plea and before the proceeding at which [Defense Counsel] was held in contempt did either the judge, prosecutor or anyone acting for them, contact or notify [Defense Counsel] that there was any problem with his acts or performance at the hearing to withdraw [Defendant]'s guilty plea.
11. Judge [Circuit Judge] instigated an inquisition in this matter focused to punish [Defense Counsel]. There was no notice to [Defense Counsel] of this inquisition; however, counsel for the People did have knowledge of the inquisition and the later hearing at which time the testimony of [___ ______], the court reporter, was taken. Counsel for the People made no attempt to inform [Defense Counsel] of the inquisition and the hearing at which the sworn testimony of the court reporter was received by the Court. The court reporter joined the efforts of Judge [Circuit Judge] and the prosecutor to keep secret the inquisition and hearing.
12. The sworn facts contained in paragraphs numbered 1 through 21 of [Defense Counsel]'s motion filed in this matter on July 26, 1994, are incorporated and made a part of this section as Attachment 1.
II. The Legal Issues
It is also important to an efficient disposition of these proceedings that the parties clarify areas of dispute concerning the legal standards which apply in this case. The applicable legal standards are set out below, divided into several subsections so, at the end of each subsection, the prosecution can easily admit or deny that the correct legal standard has been stated and can specify in what manner any subsection is incorrect.
1. Sources of Applicable Legal Standards
There are numerous layers of legal standards which establish the standards applicable to contempt proceedings; the United States Constitution; Illinois constitutional, statutory, as well as decisional law; and, Rules of Practice of the Circuit Court -- ______ Judicial Circuit, Rule 13.00. Each of these sources set out substantive and procedural standards which must be met before an order of contempt can be entered; the court must comply with the standards of all these sources before it may enter an order of contempt. Of course, if the substantive or procedural protections in the state or local law are less than, or conflict with, the protections afforded by the Constitution, then the constitutional standards prevail.
The United States Supreme Court has most recently spoken to the constitutional standards for contempt proceedings in United Mine Workers v. Bagwell, ___ U.S. ___, 114 S.Ct. 2252 (1994); this case is the primary authority that controls here.
The Rules of Practice of the Circuit Court -- _____ Circuit ("Rules of Practice" or "Local Rules") Rule 13.01, _____ Judicial Circuit, _____ County, Illinois, which defines contumacious conduct and establishes procedures which must be followed by this court in contempt proceedings, is as follows.
(a) Contumacious conduct defined. Contumacious conduct consists of verbal or nonverbal acts which:
(1) embarrass or obstruct the court in its administration of justice or derogate from its authority or dignity;
(2) bring the administration of justice into disrepute; or
(3) constitute disobedience of a court order or judgment.
(b) Direct criminal contempt defined. Contumacious conduct constitutes a direct criminal contempt if it is committed in such a manner that no evidentiary hearing is necessary to determine the facts establishing such conduct and is committed in an integral part of the court while the court is performing its judicial functions.
(1) Court's alternatives. Upon the commission of an act constituting a direct criminal contempt, the court may:
(a) summarily find the contemnor in contempt and impose sanctions instanter;
(b) summarily find the contemnor in contempt and impose sanctions within a reasonable time; or,
(c) delay the finding of contempt and the imposition of sanctions until a later time. When the finding of contempt is delayed, the contempt proceeding shall be conducted in the same manner as an indirect criminal contempt as provided in paragraph (c) of this rule.
(2) Conduct specified/statement in mitigation. Prior to an entry of a finding of contempt, the court shall inform the contemnor of the specific conduct forming the basis of the finding. Prior to the imposition of sanctions, the court shall permit the contemnor an opportunity to present a statement in mitigation.
(3) Sanctions. Upon a finding of direct criminal contempt, the court may impose a fine not to exceed $500.00, incarceration in a penal institution other than the penitentiary for a term not to exceed six months., or both; unless the contemnor is afforded the right to trial by jury, in which case, if the jury finds the respondent guilty of contempt, the court is not limited in the fine or incarceration it may impose. The court, in the exercise of its discretion, may impose such other sanctions as it deems appropriate.
(4) Written order required. Upon imposition of sanctions, the court shall enter a written judgment order setting for the factual basis of the finding and specifying the sanctions imposed.
(5) When referral to another judge required. Where a controversy between the judge and the contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity can reasonably be questioned, referral to another judge on both issues of contempt and the issue of an appropriate sanction is required. In this event, the judge before whom the alleged contempt transpired shall specify in writing the nature of the alleged acts of contempt, shall direct that a record of the proceedings surrounding the said acts be prepared, and shall transfer the matter to the appropriate assignment judge for reassignment. The judge hearing the proceedings after the reassignment shall base his findings and adjudication of the contempt charge solely on the transferred written charge and the record.
(6) Appeal. An appeal from a judgment of direct criminal contempt may be taken as in criminal cases. Upon the filing of a notice of appeal, the court may fix bond and may stay the execution of any sanction imposed pending the disposition of the appeal.
(c) Indirect criminal contempt defined. A contumacious act constitutes an indirect criminal contempt when it occurs outside the presence of the court or in an area that is not an internal or constituent part of the court, or the elements of the offense are otherwise not within the personal knowledge of the judge. A contumacious act committed in the presence of the court, but not summarily treated as a direct criminal contempt as provided in paragraph (b), may be prosecuted as an indirect criminal contempt.
(1) Petition for adjudication. An indirect criminal contempt proceeding shall be initiated by the filing of a petition for adjudication of indirect criminal contempt. The petition shall be verified and set forth with particularly the nature of the alleged contemptuous conduct. The charge may be prosecuted by the State's Attorney, or if he declines, by an attorney appointed by the court.
(2) Notice of hearing. If the court finds that the petition sets forth allegations which support the charge, it shall set the matter for hearing and order notice be given to respondent. . . .
(3) Explanation of respondent's rights. Upon the first appearance of the respondent, the court shall inform the respondent of his right to:
(a) notice of the charge and of the time and place of the hearing thereon;
(b) an evidentiary hearing, including the right to subpoena witnesses, confront the witnesses against him, and make a response to the charge;
(c) counsel and, if indigent, to the appointment thereof;
(d) freedom from self-incrimination;
(e) the presumption of innocence;
(f) be proven guilty only by proof of guilt beyond a reasonable doubt; and
(g) a trial by jury if the court, prior to the commencement of the hearing, declares that a sentence of incarceration or more than six months, a fine of more that $500.00, or both, may be imposed as a sanction upon a finding of guilty.
(4) When referral to another judge required. Referral of the petition to another judge for the hearing on the issues of contempt and the imposition of sanctions is required where a controversy between the judge and the alleged contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity may be reasonably questioned.
(5) Statement in mitigation. Upon an adjudication of contempt, the judge shall afford the contemnor the opportunity to make a statement in mitigation prior to the imposition of any sanction.
(6) Sanctions. The court in the exercise of its discretion, may impose sanctions as it deems necessary.
(7) Written order required. Upon an adjudication of contempt, the court shall enter a written judgment order setting forth the factual basis for the finding and specifying the sanctions imposed.
(8) Appeal. An appeal from a judgment of indirect criminal contempt may be taken as in the case of direct contempt as specified in paragraph (b) (6) of this rule.
2. Indirect, Direct and Summary Contempt
A. Rule of Practice 13.01.
Under Rule of Practice 13.01(b), contempt can be "direct" only if, "no evidentiary hearing is necessary to determine the facts . . ." Further, under subsection (b)(1)(c), if upon the commission of the purportedly contumacious act, the court "delay(s) the finding of contempt and the imposition of sanctions until a later time," then, "the contempt proceeding shall be conducted in the same manner as an indirect contempt. . ."
B. Illinois Law.
Direct criminal contempt occurs, "in the very presence of the judge" and "no matter resting upon opinions, conclusions, presumptions or inferences should be considered." On the other hand, "[W]here the judge does not have full personal knowledge of every element of the contempt and its demonstration depends on the proof of facts, of which the court would have no judicial notice, the contempt is held to be indirect." People v. L.A.S., 111 Ill. 2d 539, 490 N.E.2d 1271, 1273 (1986) (emphasis in the original) (cite omitted). See also, Pryweller v. Pryweller, 218 Ill.App.3d 619, 579 N.E.2d 432, 439 (1st Dist. 1991); People v. City of East St. Louis, 206 Ill.App. 3d 626, 564 N.E.2d 1372, 1379-80 (5th Dist. 1990). Indirect contempt cannot be found and punished summarily. L.A.S., 490 N.E.2d at 1273. Where "[t]he requisite element of [the contemnor's] willfulness must be established by facts beyond the court's knowledge" the contempt is indirect, and cannot be found and punished summarily. Id.at 1274.
It is "evident" that contempt is indirect where "facts had to be determined by the taking of testimony." In re Marriage of Wilde, 141 Ill.App.3d 464, 490 N.E.2d 95, 100 (2d Dist. 1986). Thus, for example, even where the court personally believed a witness' testimony to be false, direct contempt could be found only if "[f]alsity of the testimony [appeared] from the [contemnor's] admissions in open court and from no other source. A court may not summarily punish a witness for contempt solely on the basis of the court's opinion that the witness is committing perjury." People v. LaRosa, 198 Ill.App.3d 862, 556 N.E.2d 611, 613 (1st Dist. 1990) (emphasis added).
C. The Constitution.
Summary adjudications of contempt are used to maintain order in the courtroom "in the face of an actual obstruction of justice," where summary disposition is needed to ". . . preserve order and enable the court to proceed with its business." United Mine Workers, 114 S.Ct. at 2560 (emphasis added). "If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected." Id. "Summary adjudication of indirect contempts is prohibited . . ." Id.
D. The Prosecution Should Admit or Deny.
i. Judge [Circuit Judge] delayed finding [Defense Counsel] in contempt from June 2, 1994, when the alleged act occurred, until June 9, 1994. Thus, the summary finding of contempt was improper.
ii. Judge [Circuit Judge] conducted an inquisition into this matter, and, ex parte, and without notice to [Defense Counsel], received the testimony of the court reporter, ___________, on June 3, 1994. [The court reporter]'s testimony was used as a basis for and incorporated into Judge [Circuit Judge]'s finding of contempt. As the taking of testimony was used in the court's finding of contempt, the summary finding of contempt was improper.
iii. Judge [Circuit Judge]'s opinion of the truth or falsity of [Defense Counsel]'s statements was employed in his finding of contempt. Thus, the summary finding of contempt was improper.
3. Notice
A. Rule of Practice 13.00
Where the alleged contempt is indirect, or where the court "delays the finding of contempt and the imposition of sanctions," Rule 13.01(b)(1)(c), notice is required. Under Rule 13.01(c), the prosecution must file a sworn petition for adjudication which "set[s] forth with particularity the nature of the alleged contemptuous conduct." 13.01(c)(1). The court must "order notice be given to the respondent." 13.01(c)(2). At the first court appearance, the court must inform the alleged contemnor of all the rights to which he is entitled. 13.01(c)(3). No matter what type of criminal contempt is involved, the alleged contemnor is entitled to notice of the specific conduct involved and an opportunity to be heard in mitigation. 13.01(b)(2).
B. Illinois Law
In indirect contempt, "the alleged contemnor is entitled to due process safeguards, including notice, opportunity to answer, and a hearing. People v. L.A.S., 490 N.E.2d at 1273 (emphasis added). "[T]he alleged contemnor must be informed of the charges against him in writing . . ." LaRosa, 556 N.E.2d at 613 (emphasis added).
C. The Constitution
In indirect contempt, and where the court delays punishing a direct contempt, notice is required. United Mine Workers, 114 S.Ct. at 2560.
Of course, there is no interpretation of local, state or constitutional law that would allow for the court to actually conduct an evidentiary hearing to receive evidence on which to base a finding of contempt (such as the hearing where the testimony of Court Reporter ________ was received) without any notice to the alleged contemnor.
D. The Prosecution Should Admit or Deny.
i. At no time prior to June 9, 1994, at the instant Judge [Circuit Judge] began dictating his order finding [Defense Counsel] in contempt, did the court or the prosecution or anyone acting for them give [Defense Counsel] notice that there was any problem with his acts or performance at the June 2, 1994 hearing on the motion to withdraw [Defendant]'s guilty plea or that his coduct was in any manner considered to be in contempt of the court.
ii. Neither the court nor the prosecution nor anyone acting for them gave [Defense ounsel] notice of the ex parte evidentiary hearing held on June 3, 1994, where Judge [Circuit Judge] received the testimony of Court Reporter __________. iii. Neither the court nor the prosecution nor anyone acting for them gave [Defense Counsel] or [Defendant] notice that [Defense Counsel]'s representation of [Defendant] would be terminated as punishment for [Defense Counsel]'s alleged contempt. Thus [Defense Counsel]'s contract rights and his right to practice his profession and [Defendant]'s right to counsel of his choice were all terminated without notice or due process of law.
4. Hearing.
A. Rule of Practice 13.01
In indirect contempt or where the court delays the finding of contempt, the alleged contemnor is entitled to an evidentiary hearing which includes the rights: to subpoena witnesses; to confront the witnesses against him; to respond to the charge; to be represented by counsel; to the presumption of innocence; to be proven guilty only by proof of guilt beyond a reasonable doubt. Rule 13.01(c)(3).
B. Illinois Law
Where the alleged contempt is indirect, the alleged contemnor is "entitled to a formal hearing on the contempt charges and to all appropriate constitutional rights, including notice, reasonable opportunity to defend, assistance of counsel, a reasonable doubt standard of proof, and the privilege against self-incrimination." Wilde, 490 N.E.2d at 100. "[T]he law requires that the alleged contemnor be granted all due process rights so that he is given a reasonable opportunity to defend against the charge." City of East St. Louis, 564 N.E.2d at 1379; People v. L.A.S., 490 N.E.2d at 1273 (same).
C. The Constitution
"Criminal contempt is a crime in the ordinary sense [cite omitted] and criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." United Mine Workers, 114 S.Ct. at 2556. These protections include the rights to notice of charges, summary process, to present a defense, and to the proof of guilt beyond a reasonable doubt standard. Id. at 2557.D.
Jury Trial
It is a misnomer to designate a criminal contempt proceeding a "hearing." Except in the rarely authorized summary proceedings, criminal contempt cannot be found absent the protections that the Constitution requires in criminal proceedings. Thus, a criminal contempt proceeding is a criminal trial. When the alleged contempt can be punished by "serious criminal sanctions," a jury trial is required. United Mine Workers, 114 S.Ct. at 2563. As contempt "often strikes at the most vulnerable and human qualities of a judge's temperament . . ." and "its fusion of legislative, executive and judicial powers summons forth the prospect of the most tyrannical licentiousness," "[a]ccordingly, in criminal contempt cases an even more compelling argument can be made than in ordinary criminal cases for providing a right to jury trial as a protection against the arbitrary exercise of official power." United Mine Workers, 114 S.Ct. at 2559 (internal citations, quotation marks, ellipses, and brackets omitted).
Rule of Practice 13.01(c)(3)(g) provides for a jury trial where a fine of more than $500.00 may be imposed. As punishment for his alleged contempt, [Defense Counsel] was prohibited from representing his retained client, [Defendant]. This punishment exceeds the monetary value of $500.00.
The Supreme Court has not defined a "serious criminal sanction" which triggers the constitutional right to a jury trial when it involves a punishment for contempt other than incarceration. United Mine Workers, 114 S.Ct. at 2562, n.5. However, termination of an attorney's right to represent a client and termination of the client's right to retained counsel of choice should certainly qualify as a "serious criminal sanction."
E. The Prosecution Should Admit or Deny.
i. [Defense Counsel] was not afforded any of the constitutional due process protections before Judge [Circuit Judge] found him in contempt.
ii. [Defense Counsel] was not afforded any of the rights set out in Rule of Practice 13.01(c)(3) before Judge [Circuit Judge] found him in contempt.
iii. [Defense Counsel] was not afforded any of the rights set out in Rule of Practice 13.01(b)(2) before Judge [Circuit Judge] found him in contempt.
iv. [Defense Counsel] was not afforded the opportunity to confront or cross examine Court Reporter _______ at the ex parte evidentiary hearing on June 3, 1994, where Judge [Circuit Judge] received her testimony nor was [Defense Counsel] provided the opportunity to present any evidence on his behalf before Judge [Circuit Judge] found him in contempt.
v. Terminating [Defense Counsel]'s representation of [Defendant] as punishment for contempt exceeded a monetary value of $500.00 and thus, entitled [Defense Counsel] to a jury trial on the contempt charge.
vi. Terminating [Defense Counsel]'s representation of [Defendant] as punishment for contempt constituted a serious criminal sanction, and thus, entitled [Defense Counsel] to a jury trial on the contempt charge.
5. Excessive, Unjustified and Unauthorized Punishment
The punishment here was unjustified, unauthorized and beyond that allowed by law. The punishment interfered with [Defense Counsel]'s contractual rights. The interference with the contractual rights of [Defense Counsel] is an additional aspect of the punishment that is an issue. The termination of the attorney client relationship between [Defense Counsel] and [Defendant] concerns the rights of [Defense Counsel]. In addressing only the rights of [Defense Counsel] in this attorney client relationship, the State must be aware of the due process rights of [Defense Counsel] in his contract with [Defendant] as protected under the Due Process Clause of the Fourteenth Amendment, the Contract Clause of the Constitution, and statutory rights of [Defense Counsel] in his contract. This issue includes the protections from excessive punishment as controlled by statutes, the Rules of Practice, the Illinois Constitution and the Eighth Amendment of the United States Constitution.
6. Yick Wo v. Hopkins
A careful examination of the facts of [Defense Counsel]'s contempt proceedings could suggest that there was selective use of the court's power of contempt. A constitutional basis for this type of analysis has been known since Yick Wo v. Hopkins, 118 U.S. 356 (1886).
7. A Constitutional, Statutory and Commonsensical Analysis of the Alleged Contemptuous Act.
Before we toil needlessly on already developed and established constitutional procedural concepts, the ultimate and initial barrier must be established. The State must explain under what theory the conviction of [Defense Counsel] will stand. The test is intent to commit the act. The standard of proof required is beyond a reasonable doubt. Rule of Practice 13.01(3)(f).
If the State can overcome this initial barrier, it must then address all of the above issues.
8. Independent Adjudicator and Judicial Misconduct
The possibility of judicial misconduct requires a careful examination by both the prosecution and the counsel for [Defense Counsel] of Judge [Circuit Judge]'s actions. If the prosecution feels that judicial misconduct occurred, it should so state in a detailed analysis. Then the prosecution should also state its position as to whether the misconduct annuls the contempt conviction, prevents further participation by Judge [Circuit Judge] as an adjudicator, or some other consequence. If the prosecution feels that no judicial misconduct occurred, it should state this position in detail. If so, the prosecution must clearly indicate whether it feels Judge [Circuit Judge] should remain the judge in this matter.
A. The Ex Parte Hearing.
The ABA Model Code of Judicial Conduct, as codified in the Illinois Supreme Court Rules, will be at issue in this case. S.Ct. Rule 63(A)(4) states:
A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except [in enumerated exceptions which do not apply here].
The Committee Commentary to Rule 63 makes clear that, "[a] judge must not independently investigate facts in a case and must consider only the evidence presented." (emphasis added).
On June 3, 1994, Judge [Circuit Judge] held an ex parte hearing without giving any notice to [Defense Counsel]. If the People's position is that no ex parte hearing occurred, or that notice was given to [Defense Counsel], or that an ex parte hearing does not violate any statute, law, or code of judicial conduct, then it should so state in detail.
Further the prosecution should disclose: whether [Assistant State's Attorney], or any other representative of the State Attorney's office was given notice, formally or informally, of the June 3, 1994 hearing; whether [Assistant State's Attorney], or any other representative of the State Attorney's office was present at the June 3, 1994 hearing; whether [Assistant State's Attorney], or any other representative of the State Attorney's office was given advance notice, formally or informally, that [Defense Counsel] would be found in contempt; whether there were any ex parte communications, formal or informal, between Judge [Circuit Judge] and [Assistant State's Attorney], or any other representative of the State Attorney's office concerning [Defendant]'s case or [Defense Counsel]'s contempt.
B. Bias or Prejudice
A judge should disqualify himself in a proceeding where his impartiality can reasonably be questioned. S.Ct. R 63C(1). Doubt as to the impartiality of a judge can arise where the judge has personal bias or prejudice concerning a party or his lawyer, or if the judge has personal knowledge of disputed evidentiary facts concerning the proceeding, like an ex parte hearing. S.Ct. R. 63C(1)(a). By partaking in an activity, where the judge himself may be called as a witness, the judge is required to remove himself from the case. A judge who violates these rules may be subject to discipline by the Illinois Courts Commission. S.Ct. R. 71.
Under Rule of Practice 13.01(c)(4):
(4) When referral to another judge required. Referral of the petition to another judge for the hearing on the issues of contempt and the imposition of sanctions is required where a controversy between the judge and the alleged contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity may be reasonably questioned.
In his July 15, 1994 order, Judge [Circuit Judge] said concerning his contempt finding against [Defense Counsel]:
The message should be clear that Rambo style representation, including misrepresentations, and a confrontational disparaging attitude is counterproductive. It harms not only the system but the client. It strains judicial tolerance past its limits. No human being should be forced to listen to disparagements based on lies. Practitioners must know that there are consequences when they choose this deplorable style of representation. The contempt order stands . . .
If the prosecution feels that Judge [Circuit Judge] should not remain as judge for the contempt proceedings, they should detail their ideas and take action by moving for the disqualification of Judge [Circuit Judge].
In previously seeking to resolve this matter informally, [Defense Counsel], through friends who are attorneys, informally, in camera proffered a statement to the court. This statement was not filed and was never presented at any formal proceeding. This statement was mentioned in Judge [Circuit Judge]'s July 15, 1994 order. Neither [Defense Counsel] nor anyone acting on his behalf publicly released this statement or gave it to the press. Nonetheless, portions of this statement were quoted verbatim in an article in the [Local Newspaper].
The State should reveal all knowledge of any type concerning the release of this statement to the press.
9. Prosecutorial Misconduct
A prosecutor represents not an ordinary party, but a sovereign whose obligations to govern impartially are as compelling as its obligation to govern at all; therefore, the prosecutor's interest in a criminal prosecution is not to win a case, but to do justice. Berger v. United States, 295 U.S. 78, 88 (1935). The prosecutor cannot divagate from his or her duty to do justice simply because the prosecutor has ideological hostility toward the accused, hostility toward the advocate for the accused, has simple vindictiveness or even has the natural tendency to cover up mistakes or to protect another person from being exposed for their mistakes.
In any case, every prosecutor has a duty to uphold the words and values of our Constitution and state laws and Rules of Practice. The prosecutor can be responsible for the unconstitutional acts of another if the prosecution knew of the acts and voiced no opinion, nor attempted to correct the unconstitutional acts. An ex parte hearing clearly violates Illinois Supreme Court Rule 63A(4), the Rules of Practice in this Court and numerous constitutional rights. It is professional misconduct for a prosecutor to have known, be present at, or willfully leave uncorrected, an ex parte hearing.
Additionally, the prosecutor must seek to enforce all Constitutional, State, and Rules of Practice regarding sentencing, either of [Defense Counsel] or [Defendant].
The prosecutor should not make the severity of sentences the index of his or her effectiveness. To the extent that the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and avoid unfair sentence disparities.
ABA Standards Relating to the Administration of Criminal Justice, The Prosecution Function, ("Standard") 3-6.1(a).
Specifically, the prosecutor should have assisted and should continue to assist the court in sentencing by providing complete and accurate information for use in the presentence report. Standard 3-6.2(a). If any inaccurateness or incompleteness comes to the prosecutor's attention, the prosecutor should attempt to provide the court and the defense with the complete and correct information. Standard 3-6.2(a). Prior to the sentencing of both [Defendant] and [Defense Counsel], the prosecutor should have disclosed to the court and the defense "all unprivileged mitigating information known to the prosecutor." Standard 3-6.2(b)
III. Disclosure Issues
The prosecutions is ethically, statutorily and constitutionally obligated to disclose certain facts in cases in which people are subjected to the criminal process. The instant case, more than any other, begs for a heightened responsibility of openness and fairness in the disclosure of information. [Defense Counsel] openly, fairly, and expeditiously disclosed relevant information within his knowledge by submitting a detailed motion to the court that was supported by an affidavit. The State should now respond in a like manner by revealing in writing all facts known to them about this incident.
A. The Obligation and Reasons for Disclosure
1. The Constitutional Duty to Disclose
Due Process requires the State not to suppress evidence that is favorable to the accused or that will discredit the State's case, and upon request, the State must disclose to the accused all such information. Brady v. Maryland, 373 U.S. 83 (1963). See also, Mooney v. Holohan, 294 U.S. 103 (1935); Pyle v. Kansas, 317 U.S. 213 (1942). This requirement of candor by the State encompasses information which bears upon the credibility of witnesses even though a witness may be a court reporter, a prosecutor, or a judge. Additionally, the State is obligated to supply information that is directly material to guilt or innocence, as well as information relating to the deprivation of statutory and constitutional rights. A lack of disclosure would be prejudicial and would affect the outcome of any post-trial actions. People v. Moore, 199 Ill.App.3d 747 (1st Dist. 1990). The U.S. Supreme Court in Napue v. Illinois, stated:
The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.
360 U.S. 264, 269 (1959).
The Constitutional duty to disclose requires the State to favorably reply to the requests in this motion.
2. Statutory Duty to Disclose
The statutory duty to disclose covers both felonies, See S.Ct. R. 411-415, and misdemeanors, see People v. Schmidt, 56 Ill.2d 552 , (1974). The instant case is difficult to classify. However, it is a criminal proceeding and clearly fits within the scope of the mandated discovery. See S.Cr 411-415. Additionally, the constitutional and professional misconduct issues in this case are so significant that disclosure must be governed by the most stringent standards. The tangential effect this has had upon the constitutional rights to counsel of [Defendant]'s choice also heightens the discovery requirement. A delay in discovery of this matter to [Defense Counsel] could certainly be a constitutional deprivation to [Defendant], who is now functioning with Judge [Circuit Judge]'s choice for his counsel.
The required disclosures include but are not limited to: any information the State has that tends to negate the guilt of the accused or mitigate punishment; the names and addresses of all persons the State intends to call or knows to be witnesses; any written, recorded statements, or oral statements made by the accused; reports of any experts in the case; any books, papers, documents, etc. that belong to the accused; and any prior criminal record of all potential witnesses the State may call. S.Ct. R. 412.
If the State's position is that the mandatory statutory disclosure does not apply to this case, then they must state their reasoning in detail and put in written form a response to this discovery and place it under seal with this Court.
Not only is the state obligated to disclose those materials, but the State cannot advise persons having relevant material or information to refrain from discussing this case with counsel for [Defense Counsel]. S.Ct. R. 415(a).
There is a continuing duty by the prosecutor to disclose any relevant material or information to the counsel for [Defense Counsel]. S.Ct. R. 415(b).
3. Ethical and Expediency Reasons to Disclose
Furthermore, the State should also abide by the ABA Standards Relating to the Administration of Criminal Justice, The Prosecutorial Function which discusses disclosure.
A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.
Standard 3-3.11(a).
Additionally, the State in this case should make a reasonable diligent effort to comply with a legally proper discovery request. Standard 3-3.11(b) Finally, the State should not intentionally avoid pursuing evidence because that evidence might damage the prosecution's case or aid the accused. Standard 3-3.11.
If the prosecution feels that it does not and should not have to abide by these ABA standards, it should detail its reasoning to counsel for [Defense Counsel].
B. The Use of the Disclosure Materials
The following section provides counsel for the State an explanation, in part, of how the material requested here is to be used.
1. Pre-briefing Disclosure Is Necessary
Disclosure of information impeaching witnesses' credibility must be made early in the proceedings to ensure that all issues will be briefed effectively and can demonstrate the requirement of an annulment of the contempt conviction, or at a minimum, the requirement of a hearing.
[Defense Counsel], by this motion, seeks a meaningful presentation of facts to this Court, and if necessary, to other Courts, in his briefings and offers avoidance of the hearing conundrums arising from Brady too little, Brady too late.
2. The Disclosure Material Could Be Used For Impeachment
An understanding of what disclosure is necessary in order to understand the Constitutional requirements of disclosure. Wigmore has defined the process of impeaching testimonial evidence as the general logical process of explaining or discrediting the assertions of a witness by reference to the "human element in [the] testimony." 3 Wigmore, Evidence, '874 at 362-63 (3rd Ed. 1940). Thus, we are concerned with these "general principles" of crediting and discrediting witnesses.
McCormick has identified "five main lines of attack upon the credibility of a witness" all of which require the use of properly disclosed information.
There are five main lines of attack upon the credibility of a witness. The first, and probably the most effective and most frequently employed, is an attack by proof that the witness on a previous occasion has made statements inconsistent with his [or her] present testimony. The second is an attack by showing that the witness is biased on accounts of emotional influences such as kinship for one party or hostility to another, or motives of pecuniary interest, whether legitimate or corrupt. The third is an attack upon the character of the witness. The fourth is an attack by showing a defect of capacity in the witness to observe, remember or recount the matters testified about. The fifth is proof by other witnesses that material facts are otherwise than as testifies to by the witness under attack.
McCormick, Evidence, '33 at 66 (2d. Ed. 1972).
Impeachment is not limited to discrediting character for veracity. 3 Wigmore, Evidence, '874 at 362 n.1. (ed. 1940). Nor is the process limited to cross-examination. Extrinsic evidence showing bias, for example, may be elicited.
C. The Disclosure That Is Needed
1. Definitions and Directions
As used here, the terms listed below are defined as follows:
a. "DOCUMENT" means every writing or record of every type and description that is or has been in your possession, control, custody or of which you have knowledge, including but not limited to, correspondence, memorandum, tapes, stenographic or handwritten notes, studies, publications, books, pamphlets, pictures, drawings and photographs, films, microfilms, voice recordings, maps reports, surveys, minutes or statistical computations, or any information contained on magnetic tapes, cards, or disks which are accessible by any type of word processing or computer retrieval equipment. "Document" also refers to any data compilations from which information can be obtained and translated if necessary, by use through computers or detection devices into reasonably usable form.
b. "PERSON" means any natural person, corporation, partnership, proprietorship, association, organization, or group of persons.
c. "IDENTIFY" with respect to any documents, means to provide the following information with respect to each document, irrespective of whether the document is deemed privileged or subject to any claim or privilege: the title or means of identification, the date, author and recipient(s) of the document. If any of the responses to this requested information is reflected in a document or written or recorded statement, please identify the document or written or recorded statement.
d. "IDENTIFY" with respect to any person means to provide the person's name, residence, address and telephone number, name of business, business address and telephone number.
e. " YOU" is intended to and shall embrace and include in addition to _______, State's Attorney, _____ County, Illinois, and all the persons listed in III (C) (2), infra, all agents, servants, employees, representatives, private investigators, attorneys and their paralegals, and others who are in a position of obtaining or may have obtained information for or on behalf of [State's Attorney] or the _____ County State's Attorney's Office relevant to this request for production of documents.
2. The Following Persons Have Information And Therefore Are Covered By This Disclosure Request
This request for disclosure is intended to cover information that is available to the following persons and class of persons.
a. _______________, State's Attorney, _______ County, Illinois.
b. ______________, Deputy of Criminal Division, State's Attorney's Office, _____ County, Illinois.
c. ______________, Assistant State's Attorney, ______ County, Illinois.
d. ___________, [Local] Police Department, police investigator.
e. Other police investigators at the [Local] Police Department, who investigated either in the [Defendant] case or in [Defense Counsel]'s contempt case.
f. ___________, Official Court Reporter, ________ County, Illinois.
g. ___________, Official Court Reporter, _______ County, Illinois.
h. ___________, Assignment Director, _________County Court Reporters.
i. ___________, secretary to Judge [Circuit Judge].
j. ___________ and ___________, law clerks for Judge [Circuit Judge].
k. All other persons assisting or working with Judge [Circuit Judge] or any of his agents or employees.
l. Courtroom Officers assigned to Judge [Circuit Judge]'s courtroom on each of the days during which the [Defendant]'s case was heard or at which [Defense Counsel]'s contempt order was entered.
m. Courtroom Officers who handcuffed [Defense Counsel] and escorted him to the jail on June 9, 1994.
n. _____________, Clerk of the Court, _____ Judicial Circuit, _____ County, Illinois.
o. ______________, Court Administrator.
p. ______________, Treasurer of ______ County.
q. The news reporter, editor and publisher of the
[Local Newspaper].
r. Any and all judges in the _____ Judicial Circuit that Judge [Circuit Judge] might have talked to about [Defense Counsel]'s contempt case, including but not limited to: __________, ______________, _____________, ______________, ________________, ________________, and _______________.
s. Any person or entity that has knowledge or events relating to the alleged contemnor conduct of [Defense Counsel].
t. Any person or entity that has knowledge of any act of judicial misconduct by Judge [Circuit Judge].
u. Any person or entity that has knowledge of any act of prosecutorial misconduct by the State's Attorneys or any employees of its office.
3. The Information that is Needed.
a. Materiality.
Here the materiality test in the disclosure must focus on the relevant issues which are, in part, as follows:
1. Issues that are involved in the alleged contemptuous conduct of [Defense Counsel].
2. The procedure used by the Court in marshaling evidence.
3. The procedure used by the Court in pronouncing the contempt conviction.
4. Other attempts to seek sanctions related to this incident by Judge [Circuit Judge] against either [Defense Counsel] or any person working with [Defense Counsel].
5. Any attempts to seek sanctions sought in this matter by the State's Attorney's Office.
6. Any previous attempts by Judge [Circuit Judge] to seek sanctions against other attorneys and all contempt proceedings conducted by Judge [Circuit Judge].
7. The disposition of any and all attempts to seek sanction by Judge [Circuit Judge] against other attorneys.
8. Any acts or allegations of judicial misconduct against Judge [Circuit Judge].
9. The participation of any law clerk of Judge [Circuit Judge] in any acts of his judicial misconduct. (The availability to the law clerk of the "Nuremberg defense" to acts involving ethical professional misconduct will no doubt be an issue).
10. Any acts or allegations of prosecutorial misconduct against the State's Attorney's Office of ______ County or members of his staff.
11. Any acts or allegations of prosecutorial misconduct by Assistant State's Attorney.
12. The procedure to be used according to custom, practice and the Rules of Practice for notifying an attorney of a proceeding in a case.
13. The financial authorization for the use of a court reporter to participate in ex parte proceedings.
14. Any other issues that are implicated from the pleading in this matter.
b. Information Relating to Possible Misconduct.
Most requests for disclosure of information contain a request for the criminal records of all the involved witnesses for the State. Obviously, the public officials involved here do not have criminal records, however since the issues in this case focus on ethical behavior as well as usual case related matters, items not usually deemed relevant are very material here.
The following items are requested:
1. An admission of correctness or a statement of incorrectness as to each of the numerated items in Section I, Factual Analysis of this motion. If any statement is incorrect, state in detail the manner in which the statement is incorrect and state the correct facts. (The State did not subject its case to cross-examination or even present any evidence under oath, excepting the ex parte testimony of the court reporter. Certainly, it's time for the State to present facts as opposed to hypotheses and conclusions).
2. An admission of correctness or a statement of incorrectness as to each of the numerated items 1. through 23. in Section I, Factual Background of [Defense Counsel]'s motion filed in this matter on July 26, 1994. This is Attachment 1. If any statement is incorrect, state in detail and in what manner the statement is incorrect, and state the correct facts.
3. Identify all persons whom the State intends to call as a witness at any hearings or persons the State knows to be witnesses in this matter.
4. Identify all persons known to the State that have knowledge relevant to the issues in this matter as these issues are identified by counsel for [Defense Counsel] or the State.
5. A list of any and all occasions in which an attorney has been held in contempt or other sanctions have been sought by Judge [Circuit Judge].
6. A list of any and all occasions in which an attorney has been held in contempt in which present counsel for the State was involved in the litigation.
7. All documents prepared by the judge in this matter, the court reporter, the attorney for the State or any other person or agency in connection with or pertaining to the investigation or otherwise used in connection with this matter.
8. Identify all persons in Judge [Circuit Judge]'s presence when Judge [Circuit Judge] held the fact-finding inquisition of witness ______________.
9. Identify all known persons in the presence of Judge [Circuit Judge] when he conducted the ex parte evidentiary hearing of witness ____________l.
10. Identify all known persons who participated in the drafting, writing, research, discussion, or thought process that formed the contempt order of June 9, 1994.
11. Identify all known persons who participated in the drafting, writing, research, discussion or thought process for the so called "Rambo order" of July 20, 1994.
12. Identify all persons, be they judicial officers, prosecutors, or lawyers, with whom Judge [Circuit Judge] discussed this contempt matter or made written statements to about the contempt matter, either before or after adjudication.
13. Any notes written by Judge [Circuit Judge] with respect to the drafting of any orders of contempt, any orders relating to this matter or any discussion with respect to issues surrounding the alleged contemptuous conduct.
14. Any notes of any prosecutor, including but not limited to [Assistant State's Attorney], with respect to the drafting of any orders of contempt, any orders relating to this matter, or any discussions with respect to this matter.
15. Identify all law enforcement personnel including officers of _____ County Sheriff's Office to whom Judge [Circuit Judge], or anyone else, gave advance notice of his intention to hold [Defense Counsel] in contempt on June 9, 1994 and have him remanded to the _____ County Jail.
16. The date and time that such notice was given to the offices of the _____ County Sheriff's Office and method of giving notice.
17. Identify all persons to whom Judge [Circuit Judge], or anyone else, released the confidential proffered statement of [Defense Counsel], as well as the method for release of that statement.
18. The method by which Judge [Circuit Judge], or anyone else, permitted the [Local Newspaper] to obtain access to the verbatim text of [Defense Counsel]'s proffered statement to the court.
19. The method by which [Assistant State's Attorney], or anyone else, knew in advance that [Defense Counsel] would be held in contempt on June 9, 1994.
4. The Method to be Used in Obtaining Disclosure from Judge [Circuit Judge].
Disclosure in this matter is required from Judge [Circuit Judge], his law clerks and other assistants. The need for this information has been indicated here from the factual analysis as well as the legal issues. The State cannot ethically make contact with Judge [Circuit Judge] about these matters absent waiver by counsel for [Defense Counsel] or the presence of counsel for [Defense Counsel]. Counsel for [Defense Counsel] do not waive their presence. Millard Farmer is the designated counsel of [Defense Counsel] for this requested disclosure. The following suggestions are made to accomplish the disclosure obligations of the State.
a. A copy of this motion would be delivered immediately to the judge with a request that he, his law clerks and assistants respond in writing to both parties regarding all information and knowledge they have about the events and issues as identified in both this motion and any response of counsel for the State to this motion.
b. If there is no written indication of Judge [Circuit Judge]'s disposition of this request within ten days after he receives this motion and the accompanying request in writing, counsel for all parties will file a written request to interview jointly him, his law clerks and assistants about the disclosure information and obligations.
c. If this interview is necessary and either denied or non productive in obtaining disclosure, counsel for both parties would file a joint motion to have Judge [Circuit Judge] disqualified. Then he, his law clerks and assistants could be treated as any public official who is a witness. The attorneys for the State may then talk with him ex parte and make the necessary inquiry.
d. The letter mentioned in "a." above that is to be sent Judge [Circuit Judge] would simply state, "Judge [Circuit Judge], counsel for [Defense Counsel] has requested that counsel for the People send a copy of the enclosed motion to you for your consideration of a response to Section III, 4. on pages 43-44. Please send both parties a copy of your response." Counsel for [Defense Counsel] request that they be sent a copy of the letter, simultaneously, by fax at (800) 547-8591.
If the attorneys for the State have an alternate suggestion, counsel for [Defense Counsel] would ask the State to immediately inform [Defense Counsel]'s attorneys of this alternative. If either Judge [Circuit Judge], his law clerks or assistants have or do obtain counsel in this matter, the identity of counsel will be made known to counsel for [Defense Counsel] upon the State's knowledge of counsel.
IV. Conclusion[3]
It is primary to an ordered system of justice that a court adhere to the established Rules of Practice and to the constitutional concepts upon which we base our system justice. The Court that follows its local rules of practice, leads well, role models well, and seldom needs its contempt power. A prosecutor who properly guides a court in its responsibilities, serves the people well, leads well, role models well, and less frequently finds itself briefing issues of constitutional violations. More importantly, with proper guidance by a prosecutor the court can better stay within the base lines of self restraint, and thereby bring civility, not to mention constitutionality, to a process that otherwise would be arbitrary, whimsical and capricious. A process laden with these deficiencies does not have or command the public respect and acceptance a justice system must have.
The proceedings that led to this contempt suffered an absence of constitutional admonishments to a person before the acceptance of a waiver of the person's constitutional rights. The prosecutor stood by and did not give the court proper guidance during the acceptance of the guilty plea or during the later sentencing. The prosecutor again did not give the court proper guidance when the court engaged in an ex parte hearing to obtain the testimony of the court reporter. Even at the pronouncement of the contempt findings and the sentencing the prosecutor stood mute. The prosecutor was silent as to the rights of [Defense Counsel] and the rights of [Defendant]. Not expressing a view different from the view of the judge certainly gains favor for the prosecutor with the court, but this performance certainly makes a mockery of Berger.
We are now at another juncture -- first the prosecutor should without more, confess error for the State. Then, the prosecutor should evaluate this case as any other. If there is cause to go forward, go, but only under the Rules of Practice and the Constitution.
This motion, in part, for disclosure will be the next constitutional decision for the prosecutor here. Hopefully, the prosecutor will not again remain mute or, equally as bad, support a proceeding that follows neither the local rules of practice nor the Constitution.
Prayer for Relief
Wherefore, for the reasons stated within this motion, the reasons presented by evidence, the reasons to be set out in memoranda of law, [Defense Counsel] respectfully requests the following relief which is layered in both time capsules and voluntary compliance capsules:
1. that the State, instanter, move the court to annul or dismiss the contempt charge against [Defense Counsel];
(a) thereafter, the court annul or dismiss the contempt charge against [Defense Counsel], or, if the State fails to make the motion before August 29, 1994,
(b) that the court, of its own accord, annul or dismiss the contempt charge against [Defense Counsel]
(c) in the event the contempt charge against [Defense Counsel] is annulled or dismissed on or before September 9, 1994, the remainder of the relief requested here becomes moot, unless after the annulment or dismissal either the State or the judge seeks further sanctions against [Defense Counsel] for conduct resulting from this incident.
2. that if the contempt of [Defense Counsel] is not annulled or dismissed on or before September 9, 1994, that an independent adjudicator will be appointed consistent with the Rules of Practice, statutes and constitutional concepts set out in the motion;
(a) that the independent adjudicator annul or dismiss the contempt conviction of [Defense Counsel], instanter;
(b) that if the contempt conviction of [Defense Counsel] is not annulled instanter by the independent adjudicator, that the additional relief set out hereafter will be granted.
3. that an independent counsel be appointed by the independent adjudicator
(a) and the independent counsel will be charged to:
1. obtain all the documents of the present prosecutor; advise all potential witnesses of their rights under the law and Constitution and then begin interviewing all potential witnesses in this matter, including but not limited to the witnesses identified in Section III C 2 of this motion;
2. that the independent counsel be directed to investigate each aspect of the violation of both [Defendant]'s and [Defense Counsel]'s rights;
3. that the independent counsel will be compensated by the Court;
4. that the independent counsel will be directed to file such disciplinary action deemed necessary, including but not limited to the following:
(a) a report of all facts and findings to the Attorney Registration Commission for Disciplinary Proceedings;
(b) a report of all facts and findings to the Judicial Inquiry Board;
(c) a report of all facts and findings to the Grand Jury of this Court; and,
(d) a report of all facts and findings to the County Treasurer and governing body;
4. That the following disclosure relief will be provided:
(a) the State make all constitutionally mandated disclosures of documents and information requested in this motion to Millard Farmer, counsel for [Defense Counsel] at P.O. Box 1728, Atlanta, GA 30301; or by expedited delivery to 151 Nassau Street, Atlanta, GA 30303; or by facsimile to (404) 577-0643;
(b) the State make all statutorily mandated disclosures of documents and information in this motion to Millard Farmer, addressed as identified above;
(c) the State disclose all documents and information, even if only subject to discretionary disclosure and the State's ethical obligations;
(d) admissions by the Prosecutor of all factual issues not in dispute, and detailed reasoning for disputing all other factual issues;
(e) admissions by the Prosecutor of all legal issues not in dispute, and detailed reasoning for disputing all other legal issues;
5. that an evidentiary hearing be held on this motion;
6. for such other and further relief as justice may require.
| Respectfully submitted, |
| Millard Farmer |
| Joseph M. Nursey |
| P.O. Box 1728 |
| Atlanta, GA 30301 |
| (404) 688-8116 |
| millardfarmer@millardfarmer.com |
| COUNSEL FOR [Defense Counsel] |
ATTACHMENT 1
The [Defendant]'s Case
1. The judgment of contempt arose during [Defense Counsel]'s representation of [Defendant], believed to be mentally ill, developmentally disabled and a borderline mentally retarded person. [Defendant]'s case is PEOPLE OF THE STATE OF ILLINOIS V. [Defendant], GEN NO. 92 CF 2290. A copy of this indictment is Attachment 1.
[Defendant]'s Intellectual Impairment and Mental Illness Was Documented
2. Dr. ___________ of the _____ County Health Department evaluated [Defendant] under an order of this court. A copy of this report is Attachment 2. In this December 21, 1993 report, Dr. _____ found [Defendant] to have an impaired intellectual function, a "borderline" Full Scale I.Q. of 78, with a learning disability manifested at least as early as the fourth grade. [Defendant] is also mentally ill, suffering "a significant psychiatric disorder of long standing" -- schizotypal personality. See pp. 3-6 Dr. _______'s report.
3. Dr. ______ recommended [Defendant] as an appropriate person for an outpatient mental health program. Dr. _____ further warned that, due to [Defendant]'s psychological and intellectual disabilities, he would be "at risk" in prison. Id at 6-7. There was additional mental health professional support for Dr._____'s findings.
4. On March 4, 1994, [Defendant], represented by counsel, _______ ________, pled guilty to two counts of attempt aggravated criminal sexual assault. A transcript of these proceedings is Attachment 3.
5. [Defendant]'s family members were present in the courtroom at the time the court accepted the plea of guilty and addressed [Defendant] and his counsel. Before this time, the court had been informed of [Defendant]'s mental and intellectual disabilities. Nonetheless, while receiving and accepting the guilty plea, this court did not inquire about these disabilities or [Defendant]'s ability to understand the nature of the proceedings and his waiver of rights in light of these disabilities. This court during the guilty plea proceeding did not admonish [Defendant] in any manner beyond, at best, the general admonishments given during a guilty plea proceeding to a person of normal intelligence and mental health. See T. March 24, 1994 at 2-5.
6. On April 21, 1994, this court sentenced [Defendant] to a term of ten years to be served in the Illinois Department of Corrections. A copy of the sentencing transcript is Attachment 4.
[Defense Counsel] Began Representing [Defendant]
7. Within days of [Defendant]'s sentencing, his mother, ____________, contacted [Defense Counsel] seeking legal advice for her son. [Defense Counsel] discussed [Defendant]'s mental condition and the events surrounding the guilty plea and sentencing with [Defendant's mother] and others familiar with the facts. [Defense Counsel] ascertained that the court, at best, gave only the general admonishments that would be given a person of normal mental abilities, and did not take any special care to determine [Defendant]'s ability to understand the proceedings and the waiver of rights in light of his mental and intellectual abilities.
8. [Defense Counsel] visited [Defendant] at the jail. The jailers kept [Defendant] on the first floor in observation areas recognizing his limited intellectual abilities and his psychiatric disorder. It became apparent to [Defense Counsel] during conversations with [Defendant] that he did not understand the guilty plea proceedings. After interviews with [Defendant] and his family, [Defense Counsel] was justified in his belief that there was a bona fide question as to [Defendant]'s fitness to enter a plea of guilty, and, that a proper inquiry by the court into this matter before accepting the guilty plea was necessary.
9. To further investigate his determinations as to [Defendant]'s fitness, [Defense Counsel] read the court ordered evaluation of [Defendant] by Dr. _____. To affirm the information he had received, [Defense Counsel] obtained affidavits from Dr. ____, [Defendant]'s mother, and a statement from [Defendant]'s first lawyer. There is substantial evidence concerning [Defense Counsel]'s investigation of the facts that did not take place before the court and is not a part of the record in this matter.
[Defense Counsel] Filed A Motion To Withdraw[Defendant]'s Guilty Plea
10. On May 19, 1994, [Defense Counsel] moved this court to allow [Defendant] to withdraw his guilty plea. The documents filed by [Defense Counsel] to present this matter to the court are Attachment 5. These documents included in attachment 5 are:
a) Notice of Appearance;
b) Notice of Filing;
c) Motion to Withdraw Notice of Appeal In Order To Hear[Defendant]'s Fitness Petition;
d) Motion to Stay Mittimus Pending Disposition of [Defendant]'s Fitness Petition;
e) Affidavit of [Defendant's mother];
f) Motion for Fitness Hearing;
g) Notice of Motion;
h) Order Staying the Mittimus;
i) Notice of Mittimus;
j) Affidavit of ____________;
k) Motion to Attach Affidavit of __________ to Motion to Withdraw Guilty Plea;
l) Memorandum of ____________;
m) Affidavit of ____________;
n) Notice of Motion;
o) Motion to Withdraw Plea of Guilty; and,
p) Certificate of ___________.
11. This court held a hearing on the motion to withdraw the guilty plea on June 2, 1994. A transcript of this hearing is Attachment 6.
12. Among numerous statements made by the court and counsel for both [Defendant] and the People at that hearing, [Defense Counsel] accurately argued, "It is clear from the record that the court took no special care in admonishing [Defendant] [at the time of accepting his plea of guilty]; that is to say the admonishments here were just like the admonishments for any other defendant..." T. June 2, 1994 at 6-7. "...What special care did this court take in admonishing [Defendant]? There was no special care taken by this court. This court treated this young retarded adult just like everybody else. Give him the admonishments." Id at 14. In response to the court's question, "[d]oes anybody have a copy of the transcript of the plea? It is missing from the court file," [Defense Counsel] answered, "[t]he only thing I know [regarding the whereabouts of the transcript] is what is in the court file, Judge." Id. at 14-15. [Defense Counsel] based his argument concerning the record on information received concerning the guilty plea proceedings. The transcript of the March 24, 1994 guilty plea proceedings demonstrates the accuracy and good faith basis of [Defense Counsel]'s argument to the court.
13. At the end of the June 2, 1994 hearing on the motion to withdraw the guilty plea, the court adjourned the hearing to obtain the March 24 transcript and issue its ruling to June 9. At no time during this hearing did the court indicate in any way that it was offended by the performance of [Defense Counsel] as counsel.
After the Hearing, the Court Began A Secreted, Ex Parte Investigation
14. On June 3, 1994, the court ex parte, without notice in any manner to [Defense Counsel], without turning the matter over to a prosecutor and in a summary fashion conducted an inquisition and received testimony from ___________, the court reporter at [Defendant]'s guilty plea hearing. Not being noticed of the inquisition and otherwise unaware of it taking place, neither [Defense Counsel], a counsel to represent his interest, [Defendant], a counsel to represent his interest, nor, to the best of [Defense Counsel]'s knowledge, even the prosecutor, were present at the inquisition. The inquisition by the court did not provide any constitutional protection for the parties most affected. The transcript of this testimony, given by the court reporter as a witness, is Attachment 7.
15. Obviously, none of the affected parties could confront the witness, [Court Reporter], or contest the nature of the proceedings. The judge is now certainly a witness not only as to the reason for the hearing, but also the manner in which it was conducted and the reason for the absence of notice to the involved parties.
[Defense Counsel] Next Appeared Before the Court With [Defendant] Expecting a Ruling On His Motion
16. On June 9, 1994, this court held the hearing which had been scheduled for a ruling on the motion to withdraw the guilty plea. The court, at the beginning of the hearing, stated that it would not hear any arguments on the motion to withdraw the plea. [Defense Counsel], at this time, was still unaware of the court's secreted inquisition or marshalling of evidence outside his presence.
[Defense Counsel] Was Held In Contempt
17. The court, at the hearing, then pronounced a sentence of contempt upon [Defense Counsel]. In its summary pronouncement of a sentence of contempt upon [Defense Counsel], the court at the same time stripped [Defendant] of [Defense Counsel] as his counsel. The court, as a basis for holding [Defense Counsel] in contempt, maintained that [Defense Counsel] had made a "false" statement to the court. The alleged "false" statement was, "[it] is clear from the record that the Court took no special care in admonishing [Defendant]."
18. In the summary pronouncement of the contempt, the court relied on the June 3, 1994 ex parte testimony of the court reporter, __________, this court finding, "[n]o transcript of the [guilty plea] proceedings had been prepared prior to the [June 2, 1994] hearing, and no one discussed the admonishments with the court reporter." (emphasis added) A copy of this order is Attachment 8. A copy of the transcript of the June 9, 1994 hearing is Attachment 9.
[Defense Counsel] Had No Opportunity For A Hearing On His Contempt and Was Not Afforded
Other Constitutional Protections
19. Immediately upon completing the dictation of the order of contempt, the court remanded [Defense Counsel] into custody and he was removed from the courtroom in handcuffs without being allowed to present evidence, without having notice of the charges, and without otherwise being afforded the constitutional protections accorded a person before a conviction in this country.
20. At no time during the June 2nd hearing did the court indicate to [Defense Counsel] that he had acted to embarrass, hinder or obstruct justice or to derogate the authority or dignity of the court or bring the administration of justice into disrepute. See, People v. Miller, 51 Ill.2d 76, 281 N.E.2d 292 (1972). At no time during the June 2, hearing did the court indicate in any manner that it was necessary to summarily adjudicate [Defense Counsel] in contempt to maintain order in the courtroom and the integrity of the proceedings in the face of an actual obstruction of justice.
21. At no time prior to the court's pronouncement of contempt was [Defense Counsel] given notice in any manner that the court was considering finding him in contempt. At no time prior to the court's pronouncement of contempt was [Defense Counsel] given any of the following:
a) notice of the charges or the allegations of contemptuous conduct;
b) the opportunity to be represented by counsel in the contempt proceedings;
c) the opportunity to obtain counsel for [Defendant] on the issue of his being denied the counsel of his choice;
d) the opportunity to present evidence on behalf of either himself or [Defendant];
e) the opportunity to present a defense in any manner;
f) the opportunity to provide an explanation for the purportedly contemptuous conduct;
g) the opportunity to confront and cross examine the witness against him; or,
h) the opportunity to be heard in any manner.
[1] Professionalism as used here does not refer to the State Bar of Texas Professionalism Enhancement Program (or “PEP”); however the goals of professionalism and the goals of PEP are definitely overlapping.
The State Bar of Texas on its website at
identifies PEP as follows.
PEP is designed to address those professionalism issues not usually addressed in a typical disciplinary case and that may arise from: communication problems, poor office management skills, lack of appropriate respect, or minor neglect; the failure to understand the basics of the ethical and professional practice of law; emotional issues or substance abuse; or similar problems especially responsive to lawyer-to-lawyer assistance, education and special training.”
Each PEP Panel is made up of volunteer lawyers and lay persons. These individuals are sworn in as members of the local Grievance Committee but are assigned to participate on PEP. The PEP panel members do not serve on any other Grievance Committee Panels, do not hear any grievance cases, and do not issue sanctions. PEP panels consist of two-thirds attorney members and one-third public members.
[2] If the People desire additional time to respond, the attorneys for [Defense Counsel] hereby agree and consent to an order of this Court extending the time for the People's response for 30 days thereby making the response for the People due on September 30 and the reply of [Defense Counsel] due on October 14.
[3] Scribe's note. Mistake -- Malicious Intent -- Conspiracy -- The Fear of Wrath or Desire for Benefit.
These are descriptions on opposite poles for the conduct and behavior of the people involved in this incident. Maybe it's best here that we not apply labels, but simply wisdom. To do this, we must first unglue the label judicially etched upon the professional career of [Defense Counsel].
The people involved in this incident have the responsibility of making meaningful to the people of this State and country the Rules of Practice of this Court, the statutes of this State, the Constitution of this State and the Constitution of the United States. We do this poorly with petty attacks and procedural nitpicking that result in harsh professional sanctions to each other.