Tuesday, July 7, 2009
The Illinois Administrator has filed a complaint based on an attorney's conviction after jury trial of felony aggravated driving under the influence and failure to report an accident involving death. The complaint alleges the following factual predicate of the conviction:
On or about August 14, 2004, after consuming two to three beers while watching the White Sox game on television, Respondent left his home in his van to get some food at a Wendy’s fast food restaurant. On his way to Wendy’s, Respondent was driving north bound on Waukegan Road, in Deerfield, Illinois, at approximately 11:00 p.m. when he struck Thad Martens ("Martens") in the 1950 block of Waukegan Road as Martens was riding his bicycle alongside the road.
After hitting Martens, Respondent returned home, leaving the van and taking another automobile back out to get food at Wendy’s. While Respondent was gone, his wife...began looking in the house for him and when she checked to see if he had left in a car, she saw the van’s windshield, side mirror and side window had been broken.
Upon Respondent’s return home with the food, he ate his food and his wife questioned him about the damage to their van. Respondent told his wife that he hit a bike that was in the middle of the road.
At approximately 12:00 a.m. on August 15, 2004, [his wife] asked Respondent to take her to the place he hit the bike. Respondent and [his wife] then returned to the scene of the accident and observed Thad Martens lying on the ground by the roadside, unconscious. Respondent and [his wife] then returned home and discussed what they should do.
On August 15, 2004 at 1:42 a.m., Respondent and his wife appeared at the Deerfield Police Department to report the incident. Shortly thereafter, while at the police station Respondent submitted to a breathalyzer test which registered .097.
Martens sustained multiple injuries due to the August 14, 2004 incident including four broken limbs, severe brain trauma, and partial paralysis. He died several months later after contracting pneumonia in a nursing home.
A news report in the Deerfield (Il.) Review about the trial states that prosecutors alleged that the lawyer ate a cheeseburger and fries while the victim lay dying.
In a disciplinary proceeding, the conviction is accorded conclusive effect. The lawyer may not offer evidence to negate any essential element of the offense. Here, the failure to report appears to be a strict liability offense without a "knowing" element. The lawyer may be able to contend that he did not realize he hit a person until the return to the scene and that the facts do not show indifference to human life. The almost two hour delay in going to the police will certainly be a problem as the statute requires a report within a half hour. If he is an alcoholic and in recovery, he might avoid disbarment here under Illinois precedents.
Where there is plea, the attorney is bound by any admission of fact made in connection with the plea. When there is a contested trial, it is more difficult to precisely determine what underlying facts have been conclusively proved. Of course, the attorney also will be bound any admissions made in the criminal case. (Mike Frisch)