Probation Proposed In The F*cking Bullsh*t Case

An Illinois Hearing Board recommends a fully-stayed 90 day suspension and probation for an attorney who said a ruling was "fucking bullshit" and took cell phone photos during the prosecutor's closing argument

Respondent engaged in conduct intended to disrupt a tribunal and prejudiced the administration of justice by repeatedly reacting audibly and visibly to witness testimony and the judge’s evidentiary rulings during a criminal trial in the United States District Court for the Northern District of Illinois.

The client was acquitted.

The trial ended on January 26 with a verdict of not guilty for Respondent’s client. After the trial concluded, Respondent was escorted by United States Marshalls to the United States Marshall Service lock-up, where Respondent received a citation for failing to comply with signs and directions posted outside the courtroom in violation of LR 83.1(c), which prohibits the taking of photographs in the court environ.

Ensuing criminal charges were diverted and the judge complained to the federal court Executive Committee

In her complaint, the judge alleged that, throughout the trial, Respondent continually rolled her eyes, mumbled under her breath, and made audible comments about witness testimony and evidentiary rulings, even after the judge admonished her to stop. The judge alleged that Respondent’s “bad behavior” culminated with Respondent rolling her eyes and saying “Fucking bullshit” after the judge overruled one of her objections. (Ans. at pars. 25-26; Adm. Ex. 2 at 2-4.) The judge also complained that Respondent improperly took photos in the courtroom with her cell phone.

As a result

The Executive Committee concluded that Respondent violated Illinois Rule of Professional Conduct 3.5(d) by engaging in conduct intended to disrupt a tribunal, and violated Illinois Rule of Professional Conduct 8.4 by engaging in conduct that is prejudicial to the administration of justice. It ordered that Respondent be suspended from the General Bar of the Court for 90 days, after which she would be automatically reinstated, and suspended from the Trial Bar for one year, after which time she could petition the Executive Committee for reinstatement to the Trial Bar.

She completed the requirements.

In these proceedings

Respondent further acknowledged that she said “Fucking bullshit,” but explained that she said it to her co-counsel or intern quietly, under her breath, and did not think it would get picked up by the microphone. She did not intend for anyone in the courtroom to hear it, other than her co counsel or intern. (Tr. 146-47.)

With respect to the photo she took in court, Respondent explained that the prosecution had broken down a video, which was a key piece of evidence, into 15 or 30 or more still frames, each of which was identified by a series of numbers at the bottom of the frame. During closing argument, the prosecutor showed the frames to the jury and described what each frame purportedly showed. Respondent was going to write down the numbers of the frames, but decided to take a photo because she did not think the defense team had enough time to write down all of the numbers, and she wanted to pull up the same images for the jury in her closing argument.

In an unrelated Nebraska state court matter

Respondent made an extrajudicial statement that she knew or reasonably should have known would be disseminated by means of public communication and would threaten the fairness of an adjudicative proceeding. She also prejudiced the administration of justice by making statements to local media outlets regarding a criminal matter pending in Nebraska state court, in violation of a protective order, and doing so shortly before the start of trial in the matter. She did not, however, engage in conduct intended to disrupt a tribunal or use means in representing a client that had no substantial purpose other than to embarrass, delay, or burden a third person.

Nebraska Bar Counsel pursued charges

Based upon her conditional admissions, the Nebraska Supreme Court found that she violated §3-503.6 and §3-508.4(a), as well as the oath of office for her pro hac vice admission. It reprimanded her for her misconduct.

Here

Respondent testified that she never should have said “conclusively exonerates” nor given any details about the DNA evidence, but that her intention and her “whole reason” for giving that information in the interviews was “to counter … the information that the state was putting out there . . . .” (Tr. 101.) She testified that she did not intend to disrupt the Garcia proceeding, to create a distraction in the media, or to harass or embarrass the prosecution by talking to the media. 

Mitigation

Respondent testified that her passion is criminal law, and that she is driven to take cases that involve the underprivileged and minorities, and where she sees injustice. (Tr. 55.) Respondent testified that she helps people with things like tracking down missing or arrested family members for free when they do not have money, and often discounts her fees or takes nominal payment to help people if she believes they have suffered a serious injustice or been targeted because of their race. (Tr. 56.) She also has done pro bono work for people who were losing their homes. (Tr. 61.)

Respondent testified at length about her work with a charitable organization she founded called the “Jacktivists.” She explained that her passion outside of law is live music, and especially the band My Morning Jacket, which has a tightknit fan base with more affluent people. She helped found the Jacktivists to use the fans’ collective resources to raise money for charities, carry out projects such as a school supply drive, and promote petition drives for causes such as voting, gun safety, and the environment.

Further mitigation

We have also considered the fact that the Administrator did not bring this disciplinary proceeding until almost five years after Respondent’s misconduct in the Redwood matter, and more than five and a half years after her misconduct in the Garcia matter. We find it mitigating that, during the lengthy period of time between Respondent’s misconduct and the filing of the Complaint against Respondent, she has conducted herself ethically and no other misconduct charges have been brought against her, which leads us to conclude that Respondent poses no risk to the public or legal profession.

Sanction

Based on the unique circumstances of this matter, we believe that even a short suspension that is not stayed in its entirety by a probationary period is akin to punishment, which is not the purpose of attorney discipline. See Edmonds, 2014 IL 117696, ¶ 90. In arriving at our recommendation, we have considered precedent in which the Court has imposed suspensions stayed entirely by probation.

(Mike Frisch)