Past Forgetting

An Illinois Hearing Board proposes a reprimand

Respondent, an Assistant State’s Attorney, was  charged with making false statements and failing to disclose exculpatory  information to the defense. In an interview with Respondent, about two weeks  before trial, the State’s key witness stated that, in a prior description of the  incident, he exaggerated the defendant’s participation because of threats from  gang members. Respondent did not inform defense counsel of that statement,  although defense counsel learned of that statement, from another source, the day  the trial began and was aware of other inconsistent statements by the witness.  At trial, when the witness referred to gang threats, Respondent stated she was  hearing about such threats for the first time. After trial, the defendant was  acquitted.

Respondent testified she had forgotten about the  statement the witness made during the interview. The attorney representing the  witness testified that when he reminded her of the statement Respondent appeared  genuinely surprised. The defendant’s attorney, who was present at the time,  concurred. Both attorneys believed Respondent’s misstatement was inadvertent.

The Hearing Board concluded the Administrator did  not prove Respondent knowingly made false statements to the court or  intentionally engaged in any dishonest conduct. The Hearing Board found  Respondent improperly failed to disclose exculpatory information to the defense  by not informing defense counsel of the statement made during the interview.

The Hearing Board determined a violation occurred  that warranted some discipline. Given all the circumstances, including  Respondent’s state of mind, the lack of prejudice and the significant mitigating  factors, the Hearing Board concluded Respondent should be reprimanded.

No suspension because

there are significant mitigating  factors. Based on the evidence presented and our observations of her at the  hearing, Respondent impressed us as an ethical attorney, decent and  hard-working, committed to serving the public who has a good understanding of  the responsibilities her role entails. Testimony leading to that impression came  not only from Respondent’s supervisors, but also from attorneys who had  regularly opposed her in litigation over time. We considered that testimony very  significant in mitigation. See Kakac, 07 SH 86 (Review Bd. at 20).  We do not regard this incident as representative of Respondent’s usual conduct.  We also believe this experience has indeed been a difficult one for Respondent  and that she is highly unlikely to engage in misconduct in the future.

(Mike Frisch)