Undue Pressure

An Illinois Hearing Board recommends that bar charges be dismissed as unproven

We found the Administrator failed to prove by clear and convincing evidence that Respondent knowingly made false statements in a motion to reopen his client’s case and his testimony in relation to the motion. Specifically, the Administrator did not prove that Respondent’s statements that his client had a strong desire to testify at trial since the inception of his case and that before trial and closing arguments his client wanted to testify were knowingly false. Rather, the evidence showed Respondent’s client had a strong desire to testify throughout the pendency of his case but vacillated over the decision to testify after hearing the prosecution’s case. Accordingly, we recommended the Administrator’s Complaint be dismissed.

At issue was representations made regarding the client’s decision to testify or not

The evidence demonstrates that Biles expressed a strong desire to testify at trial throughout his case. He often expressed a desire to tell his side of the story when communicating with Respondent. Then, when his trial commenced, he had planned to testify as evidenced by Respondent’s opening statement.

We recognize, however, that despite Biles’s intent to testify at trial, he was overwhelmed and conflicted about this decision during the recess. We agree with Respondent, who we found credible, that the situation was “unduly pressurized.” The decision had to be made quickly and late in the trial day. Biles’s brother had recently been killed and he was forced to think about this when his brother’s case was dismissed that day. His motion for a directed finding was just denied while his co-defendant’s was granted. Moreover, the decision whether to testify was significant in and of itself as the consequences of such a decision could radically change the trajectory of Biles’s life as his college scholarship was at risk if he was convicted.

This pressure likely contributed to Biles’s oscillation about testifying. He changed his mind repeatedly during a fairly short recess and even went back and forth about the decision in the seconds leading up to his case being recalled. We, however, find this oscillation, which, in large part, took place in a very short, highly pressured recess, insufficient to prove Respondent’s statement that Biles had expressed a strong desire to testify throughout the pendency of his criminal case knowingly false.

Given Biles’s initial decision to testify on the day of trial and subsequent oscillation, we believe it credible that Respondent initially concluded when drafting the motion to reopen that he put undue pressure on Biles to not testify. Respondent felt strongly that the prosecution’s case was weak and Biles should not testify, and he conveyed this to Biles. While Respondent and Judge Porter told Biles the decision whether to testify was his to make, Respondent’s encouragement to not testify at a time when Biles was vulnerable and highly stressed could have been perceived by Respondent as placing pressure on Biles to not testify. Accordingly, we find this statement when made by Respondent was not knowingly false in violation of Rule 3.3(a)(1).

Finally, Respondent’s testimony at his sworn statement does not convince us that his statements in the motion to reopen and at the hearing on the motion were knowingly false. Respondent testified in his sworn statement that his subsequent statement that Biles had stated he wanted to testify immediately upon the defense resting was inaccurate. We credit Respondent’s testimony that when he said this he was referring to the timing of the sequence of events. The evidence presented demonstrates that there was a lot going on in the very short time period between the recess and Biles being found guilty. The evidence suggests that the sequence of events was happening very rapidly and, in some instances, simultaneously. As a result, this contributed to Respondent’s confusion regarding the timing of what transpired. Given how quickly everything happened and the continued oscillation of Biles, we are unconvinced by the evidence that Biles informed Respondent of his desire to testify only after being found guilty as the Administrator suggests.

While there were possible missteps made by Respondent in how he handled Biles’s confusion about whether to testify, we do not believe these missteps rise to the level of an ethical violation. As Respondent testified, the pressure around this decision was unique and contributed to Respondent’s confusion regarding his client’s desire to testify and his level of involvement in helping his client make that decision. Accordingly, we find the Administrator failed to prove Respondent knowingly made false statements to the Court in violation of Rule 3.3(a)(1).

(Mike Frisch)