Update: Why I don’t post arrest videos from my cases on the net

You may recall a blog post that I wrote a year ago entitled “Why I don’t post arrest videos from my cases on the net.”  It was about a downstate attorney who was facing disciplinary action for posting on youtube and facebook police videos that he had obtained in discovery in the course of representing a client. The attorney titled the videos “Cops and Task Force Planting Drugs – Part 1″ and “Cops and Task Force Planting Drugs – Part 2.”

I explained that the postings violated an Illinois Supreme Court Rule which requires that an attorney maintain exclusive control of all discovery obtained in felony matters.  Rule 415(c), as well as a professional conduct rule that requires that attorneys refrain from doing anything that might pose a threat to the fairness of an impending matter. IL Rules of Professional Conduct 3.6(a).

While I don’t like certain aspects of these rules (see my previous post for my reasoning), they are rules of conduct that are pretty clear-cut.

Today’s update is that the Illinois Appellate Court for the Fourth District upheld a trial court sanction against the attorney.  The case is People v. Fulmer and Gilsdorf, 2013 IL App (4th) 120747.  In the opinion, the court rejected the attorney’s claim that he had a First Amendment right to disseminate the information, as well as his claim that the Supreme Court Rule did not apply because the discovery was tendered before felony charges were formally approved.

According the Illinois Attorney Registration and Disciplinary Commission’s website, an ethics complaint against the attorney for his conduct is still pending.

Before posting someone’s bond, be aware of the consequences!

How would you like to have the government take $50,000 of your money because of something someone else did?

A new appellate court opinion was issued last week that might be of interest to the general public. It concerns what can happens to the money put up by a third party to bail someone out.

The case was People v. Pamela Williams, 2012 IL App (2) 111157. According to the opinion, Ms. Williams was charged with multiple counts of theft. She needed $50,000 to bond out of jail. Her brother-in-law, Arwood K. Edwards, was willing to do so, because he believed in Ms. Williams’ innocence.

Before Mr. Edwards could post the bond, a special hearing was held, to ensure that the money being used to post the bond were not obtained as a result of the allegedly fraudulent conduct. During this hearing, it was stated in court that Mr. Edward had been advised that the money that he posted for Ms. Williams’ bond could be used to pay fines, court costs and/or restitution. The Court found that the money was not obtained from the fraud, and Mr. Edwards was allowed to post the bond. When he did so, he signed a form which again stated that the funds could be used for fines, fees, court costs, attorneys fees and/or restitution, or forfeited if the defendant failed to appear in court.

Subsequently, Ms. Williams plead guilty to ten counts of theft, and she was ordered to pay $1,800,000.00 in restitution. Her attorneys filed a motion seeking to have the bond money returned to Mr. Edwards. The State objected, and a hearing was held before a DuPage County judge.

According to the opinion, at the hearing:

The defendant’s attorney read a statement on behalf of Edwards that said that when he posted the
bond the defendant had pleaded not guilty, and Edwards believed that the defendant was innocent.
The statement went on to say that, if Edwards had known that the defendant was guilty, he would
not have provided the bail money. The defendant’s attorney argued that it would be a travesty to take
money from a third party who was not involved in the crimes. He additionally argued that, because
Edwards had recently injured himself and had a severely disabled son, the trial court should consider
these personal circumstances in determining whether equity required exoneration of the bond.
Finally, the defendant’s attorney argued that using the bail money for restitution was not mandatory
and that, under the circumstances, using it would be unfair

Unfortunately for Mr. Edwards, the trial court ruled against him. The court ruled that when Mr. Edwards knowingly posted the bond, he accepted the risks inherent in posting a bond for another person. The court held that it was not obligated to consider the essential fairness of taking Mr. Edwards’ money to pay for Ms. Williams’ crimes.

Mr. Edwards also raised a technical defense, that the Notice to Surety on the bond form did not comport with the requirements under the bond statute, 725 ILCS 5/110-7. The Court agreed that the bond form did not meet the statutory requirements, but that compliance with the statute was not be strictly enforced.

I should also point out that it is becoming commonplace in many jurisdictions for bond money to be used, not only for court costs, fines and restitution on the pending case, but also to pay any outstanding balances on any other cases that the defendant might have in that jurisdiction.

So be warned: if you have a relative or friend who is charged with a crime, and begs you to post his or her bond, you should be prepared to kiss that money goodbye.

Cook County Clerk accused of shredding files

The Chicago Sun-Times has reported on the arrest of Jeanette Neibauer, a long-time clerk of the Circuit Court of Cook County.  She stands accused of taking files home and shredding them.  She is accused of tampering with court files and official misconduct.  Her bond has been set at $750,000.

Ms. Neibauer worked in the Law Division, the division of the Court that handles large-sized lawsuits seeking monetary compensation ($30,000 and up).  My understanding is that she was most recently the clerk for Judge Ronald Bartkowicz, who has an individual Commercial Calendar in addition to hearing Law trials.

A Law Division case often involves sensitive medical and financial records or trade secrets.  It is the duty of the clerks and other courtroom personnel (as well as attorneys and their staff) to adhere to strict confidentiality rules.

It has yet to be revealed what documents Ms. Niebauer is accused of shredding, how long she is alleged to have been shredding documents, or what she is alleged to have been doing with documents prior to her shredding.

Keep in mind that in civil litigation, each parties are required to tender copies of each filing to each litigant, and that each litigant will maintain copies of their own filings as well. So that means that each party to the lawsuit should have a complete copy of everything that belongs in the court file.

On the other hand, Cook County has been slow to adopt electronic filing, or to scan in all filings, as they do in neighboring DuPage and Kane Counties.  This would alleviate the need for a court filed stuffed with paper filings.

Assuming that she was taking documents home to shred, it is unclear what her motivation was.  Was she simply destroying documents that were file duplicates to save herself extra filing work?  Was she taking home depositions to read and destroying them to cover her tracks?  Did her actions affect any litigants?  Or, what I am sure is everyone’s worst nightmare, was she using the information in the documents for her own personal gain?  We don’t know at this point, and she is presumed innocent of any charges pending trial.

Hopefully, there is an innocent explanation and Ms. Neibauer can be set free.

US to issue renewable work visas to some undocumented aliens

Major news today on the immigration front.  The United States Department of Homeland Security has announced that it will allow certain undocumented aliens to apply for renewable 2 year work visas.  These visas will allow a person, who was brought into this county illegally when they were younger than the age of 16 and have been living here for at least 5 years, have not committed any felonies or “significant” misdemeanor or multiple misdemeanors and is a student or a veteran or has a high school degree or GED.

These visas will allow the individual to obtain a social security number and therefore, a driver’s license.

Here is Secretary Napolitano’s press release:

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), or DHS’s website (at www.dhs.gov). Beginning Monday, individuals can also call USCIS’ hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the forthcoming process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

For more information on the Administration policy reforms to date, please see this fact sheet.

New Rule: Illinois Jurors will be allowed to ask witnesses questions in Civil Cases

Effective July 1, 2012, jurors in Illinois civil cases will be allowed to ask questions of witnesses, under new Supreme Court Rule 243.

The Rules states:

243. Written Juror Questions Directed to Witnesses

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.

(b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.

(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.

(d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

Adopted April 3, 2012, eff. July 1, 2012.

I think this is an important rule change and can only help to assist jurors in their role as fact finders, by allowing them to get additional answers to questions that may not have been asked by the attorneys, either by inadvertence or intentionally.

In talking with jurors after a trial, I often find that they have many good questions that went unanswered.  Heck, often the attorneys kick themselves because they forgot to ask something.  When you add twelve more people into the mix, someone is bound to come up with a good question that could be helpful in resolving the case.

Note that the jurors’ questions are subject to objections, just like any question posed by an attorney.  This is because many questions that a layperson would ask would not be allowed at trial.  Such questions could lead to the jury basing their decision on facts or sentiments that are not directly relevant to the case.  It was wise to require that these objections be heard outside the presence of the jury.  That way, an attorney can feel free to make his or her objections without worrying that his or her client will be penalized for “blocking” someone’s question.

I am told that juries have been allowed to ask questions in other jurisdictions, generally with good results.  I am curious to see how this works out in Illinois.

Any thoughts?

Other attorneys sometimes leave me dumbfounded…

The other day I was in a misdemeanor court, and I saw something that left me dumbfounded.

This involved watching an experienced attorney and former judge, who has roughly 40 years of experience.  He walked into the courtroom, and obtained a plea offer for his client from the prosecutor.

Several minutes went by as the prosecutor prepared the sentencing orders, this attorney prepared a jury waiver, and the clerk tallied up the fines and costs.

I was standing in a line of attorneys waiting to speak to the prosecutor while all this was happening.

After all the paperwork for the plea was ready, the prosecutor opened up his file and handed the attorney the police reports and a DVD which presumably contained a dash camera arrest video.  The attorney grabbed the documents and without even looking at them, told the prosecutor he was ready to get the case called.

In other words, this attorney had agreed to plead out his client without having even looked at the reports or the arrest video.

Now, I must say in all fairness that there are some cases where I know before entering the courtroom that the case against my client is looking very strong and the likelihood of a plea is high.

But still, no matter how bad the facts may be, it is legal malpractice to plead your client out without having at least reviewed all the discovery, and to verify that the officer did not make some lapse and that there isn’t some technicality that can be used to my client’s advantage.

Reading the police reports is the minimum that you should expect of your attorney.

I am still shaking my head.

Laws are about to get tougher for Illinois speeders

Yesterday, the Illinois Senate voted unanimously to prohibit sentences of court supervision for anyone who is caught speeding more than 25 miles an hour over the speed limit in an urban district, or 30 miles an hour over the speed limit anywhere else.

You can find the text of the Bill (SB2888) here.

Supervision has been described as being like “a continuance until the conclusion [at which time] the court shall discharge the defendant and enter a judgment dismissing the charges if the defendant successfully complied with the conditions of supervision.”   A supervision is not a conviction, so it would not appear on one’s public driving record, cause a suspension or revocation, or affect insurance rates.

This change in the law comes within a couple of years of our state making driving in excess of 30 miles an hour over the posted limit a Class B misdemeanor (more than 40 over is a Class A misdemeanor).

This means that anyone found guilty of driving over 30 miles over the limit will become a convicted criminal.

In my experience, the vast majority of these speeders are young men, who are probably either unaware or undeterred by these laws, and who typically have no other criminal background.  Do we really want to stick them with a criminal record merely for speeding?

Thanks to Chicago attorney Tatiana Czaplicki for making me aware of this new bill.