*Updated in a separate blog post, click here to read the update.
The Daily Herald reported on an interesting situation from Kane County: a 22 year old man, Travis Eubanks, was arrested for DUI last year by a South Elgin police officer, Bryan Kmieciak. When Eubanks’ mother arrived at the station, the officer allegedly gave her a pen imprinted with the name and information of attorney Todd Cohen. The officer told her that he recommended Cohen. When the mother stated that the family usually used another attorney, Garrett Malcolm, the officer tried to dissuade her, claiming that Malcolm was “rude and unprofessional.”
Eubanks claims that when he went to meet Cohen, the attorney said that he was good buddies with Officer Kmieciak, and that they played on the same softball team. Eubanks felt uncomfortable and retained Malcolm anyway. On his first court date, Eubanks was very nervous and was afraid of retribution for hiring the “wrong” attorney, so he decided to accept a plea deal (which included a requirement that he wear a SCRAM bracelet for 100 days) in return for a rescission of his license suspension. Malcolm had not read the police reports or seen the arrest DVD before Eubanks entered into this agreement.
Eubanks filed a motion to vacate the plea. *
The story did not state when the motion was filed, but since the plea was entered in October of last year, it is very likely that it was filed after the 30 day period to file such a motion. After 30 days, a person must file a Petition to Vacate Judgment pursuant to 735 ILCS Section 2-1401. “To be entitled to relief under section 2-1401, a petitioner must set forth allegations supporting: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting the claim or defense to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief.” People v. Coleman, 206 Ill.2d 261, 288-89. (2002).
According to the Herald, the judge denied the motion to vacate, so the plea stands. The judge’s reasons were not fully reported, *
but it would appear that Eubanks lacked a meritorious defense (he was twice the legal limit to drive) and was not diligent in moving to vacate his plea. (Again, this is all guesswork on my part since I have not reviewed the court file or read the transcripts of the hearing).
What could Eubanks have done differently? He could have reported Kmieciak’s actions to the police department, or state’s attorney, for investigation. Kmieciak’s actions, if true, violated the South Elgin Police Department’s policies. Instead, he kept quiet, accepted a deal that was beneficial to him (his six month license suspension was recscinded even though he blew over twice the legal limit) and then attempted to get a do-over well after the fact.
Still, as one of the commenters to the the Daily Herald story asks, there are other questions that the public deserves to know. How many times has Cohen represented defendants retained by Kmieciak? Is there some sort of deal between the two? Have these defendants obtained any unusual breaks when they have hired Cohen? Has this officer told other people to stay away from Malcolm?
What do you think?