February 9, 2010
Sending A Message
The Illinois Review Board has recommended a 30 day suspension of an elected state's attorney for litigation misconduct. The board's synopsis of the case:
[The prosecutor], the State's Attorney of Wayne County, was charged with misconduct arising out of his prosecution of criminal charges against Curtis Sutton. The complaint charged [him] with making a statement of material fact to a tribunal that he knew or reasonably should have known was false, in representing a client failing to disclose that which he was required by law to reveal, suppressing evidence that he had a legal obligation to reveal or produce, in criminal litigation failing to make timely disclosure to defense counsel of the existence of evidence known to [him] that tended to negate Sutton's guilt or mitigate the degree of the offense, and engaging in conduct involving fraud, dishonesty, deceit or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. [He] admitted most of the facts alleged in the complaint, but denied misconduct.
The Hearing Board found that [he] engaged in some, but not all, of the misconduct charged. The Hearing Board found that [he] engaged in misconduct by: a) failing to disclose to Sutton's attorney that a key prosecution witness, Brian Asher, had entered into a plea agreement with [his] office and the terms of that plea agreement, b) failing to correct Asher's testimony at Sutton's trial that he had not been offered anything in exchange for his testimony, and c) falsely stating in closing argument that Asher had not been promised or offered anything in exchange for his testimony. Given its findings as to [his] intent and the mitigating evidence presented, the Hearing Board majority recommended that [he] be suspended for thirty days. The third panel member recommended a censure.
The case was before the Review Board on the Administrator's exceptions, challenging some of the Hearing Board's findings in relation to the misconduct charged and its sanction recommendation. [He] did not challenge the Hearing Board's findings of misconduct, but sought a censure.
The Review Board affirmed most of the Hearing Board's findings as to the charges of misconduct. The Review Board, however, reversed the Hearing Board's finding that the Administrator had not proven that [he] engaged in misconduct by misstating, albeit unintentionally, the nature of a prior conviction of Asher's during a hearing on the admissibility of prior convictions for impeachment purposes. Given all the circumstances, the Review Board agreed with the Hearing Board majority's recommendation of a thirty-day suspension.
The review board noted that the prosecutor had no prior discipline, excellent character evidence and a general open discovery policy. However:
We intend, by the discipline recommended here, to send a very clear message that misconduct by attorneys prosecuting criminal cases will not be tolerated. The risk that a prosecutor's misconduct may cause reversal of the underlying criminal conviction has not served to meet the goal of deterring prosecutors from engaging in misconduct. Public prosecutors must be at least as amenable to professional discipline as other attorneys. This is particularly true of the person who is the State's Attorney... such as [him]. Where, as here, the Administrator proves by clear and convincing evidence that an individual prosecutor has violated ethical standards and engaged in professional misconduct, that attorney is subject to discipline. (citations omitted)
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