Wednesday, December 11, 2013

YouTube Post Draws Suspension Recommendation

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.

(Mike Frisch)

Bar Discipline & Process | Permalink

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The prosecution is framed in terms of injury to the client but the prosecution was actually brought by the government and it is quite clear that the government is supposedly the injured party here, not the client. The best argument is for a violation of 3.6 but even that is based upon supposition rather than actual evidence.

The opinion openly avoids addressing a number of issues which the respondent raises.

I hope the attorney continues to fight this one. Seems to me that he is being railroaded.


Posted by: Stephen Williams | Dec 11, 2013 2:21:26 PM

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