Wednesday, December 11, 2013
The Illinois Review Board has issued a recommendation for a five-month suspension of an attorney who, while representing a client charged with drug distribution, posted a video of the transaction that he received in discovery on YouTube and Facebook.
The board found
Charles Burch, an Assistant States Attorney in Pike County, testified that he was required to turn over the video and police report to Respondent prior to trial. While he testified he was not required to turn over the video prior to the preliminary hearing, he was not aware of any rule or procedure that prevented him from producing the information to defense counsel prior to the preliminary hearing. The custom in his office was usually to turn the information over prior to the preliminary hearing in cases where the public defender was representing defendants but not in cases where the defendant was represented by private counsel.
Some time after March 4, 2011, Respondent viewed the DVD. To Respondent, the transaction, at the time he first viewed the DVD, "looked like the police were planting drugs", although the police are shown only in the last 10 seconds of the 18 minute video. Fulmer also viewed the DVD in Respondent's office with her sister. Respondent told Fulmer he was going to "pre-jury" the video to gather further opinions about the transaction. Fulmer expressed no objection. According to Fulmer, Respondent did not tell Fulmer he intended to post the video on the internet. Fulmer did not give Respondent permission to post the video of the drug transaction on the internet.
In early April 2011, Respondent paid a service to post the video on YouTube. He broke the video into two parts and entitled the videos "Cops and Task Force Planting Drugs- Part 1" and "Cops and Task Force Planting Drugs- Part 2", respectively. Respondent then posted on his Facebook page a link to the videos on YouTube.
Respondent testified that Fulmer was aware he was posting the video on the internet and in support, Respondent's secretary testified, based on a phone message, that Fulmer called the office once to see if the video had been posted. She also testified that Fulmer later called the office and laughed about the video and seemed excited and "very pleased". However, Fulmer testified that Respondent did not ask her permission to post the video on YouTube or discuss with her the ramifications of posting the video on the internet. She testified that after the video had been posted, Respondent called her, gave her the website address for the video, and told her he wanted the video to "go viral". She then went to her sister's house to view the video and testified that she was embarrassed by it. Respondent told Fulmer and her sister to post the videos on their Facebook pages and they did so, although Fulmer testified that "I wasn't sure how it was going to help me, but I guess that's why you hire an attorney because they know the law."
The State Police and the States Attorney's Office learned of the posting of the video on YouTube. Charles Burch took screen shots of the video, which indicated that the videos had each been viewed over 500 and 800 times, respectively. The office began to investigate how the video was placed on YouTube and discussed the posting with the Chief Judge of the Eighth Judicial Circuit, the Honorable Richard Greenlief. Officer Riley of the Illinois State Police testified that the posting of the video on the internet thereafter terminated the department's ability to work with the CI and undermined the department's credibility.
The board rejected the claim that the conduct was protected by the First Amendment
As to sanction
He published damning evidence on the internet with little to no thought or discussion of the possible consequences to his client. His conduct threatened the fairness of a criminal proceeding and harmed his client.