BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

GLEN ROBERT WEBER,

Attorney-Respondent, 

No. 6196197.

 

Commission No. 07 CH 61

FILED - June 22, 2007

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Melissa A. Smart, pursuant to Supreme Court Rule 753(b), complains of Respondent, Glen Robert Weber, who was licensed to practice law in Illinois on November 5, 1987, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

ALLEGATIONS COMMON TO ALL COUNTS

1. From November 1987 through December 2000, Respondent was an Assistant State's Attorney in Winnebago County, Illinois.

2. In December 2000, Respondent was elected as the State's Attorney of Jo Daviess County, Illinois. From December 2000 through November 2004, Respondent served as the State's Attorney of Jo Daviess County, Illinois. As State's Attorney, Respondent personally prosecuted the majority of the criminal felony cases in the county, as well as certain civil matters.

COUNT I
(Improper Cross-examination and Closing Argument by a Prosecutor
in relation to the Slabaugh Matter)

1. On June 16, 1997, Nathaniel Slabaugh ("Slabaugh") was charged with mob action, aggravated battery and resisting or obstructing a peace officer. The charges stemmed from a June 15, 1997 incident in which a fight broke out at a birthday party which Slabaugh attended. It was alleged that Slabaugh punched two Rockford police officers as they were attempting to disperse the crowd following the fight. The matter was docketed as People of the State of Illinois v. Nathaniel Slabaugh, case number 97 CF 1331 in the Circuit Court of Winnebago County.

2. On March 10, 1999, case number 97 CF 1331 was called for jury trial before Judge K. Craig Peterson. Respondent prosecuted the case on behalf of the Winnebago County State's Attorney's office. Slabaugh was represented by Paul E. Gaziano.

Improper Impeachment by Conviction

3. At all times alleged in this complaint, the law in the state of Illinois related to impeachment provided that prior convictions for impeachment purposes for defendants, and witnesses other than the defendant, are limited to crimes punishable by imprisonment for more than one year (felonies) or any crimes involving dishonesty.

4. As part of his defense, Slabaugh presented the testimony of Jolie Swartz ("Swartz"), a witness to the June 15, 1997 fight, who became involved when she told officers that their arrest of certain participants was not necessary. Swartz was subsequently arrested for obstructing a peace officer, a misdemeanor, and pleaded guilty to that offense.

5. During his cross-examination of her, Respondent questioned Swartz about her misdemeanor conviction for obstructing a peace officer arising out of the same incident for purposes of an attempted impeachment.

6. As part of his defense, Slabaugh also presented the testimony of Michael Rich ("Rich"), another witness to the June 15, 1997 fight, who became involved in the fight. Rich had also previously pled guilty to the misdemeanor offense of obstructing a peace officer arising out of the same incident. Rich testified that Slabaugh was only trying to get the officers' attention because they were being too rough with another individual present during the fight.

7. During his cross-examination of Rich, Respondent questioned Rich about his misdemeanor conviction for obstructing a peace officer arising out of the same incident for purposes of an attempted impeachment.

8. At all times alleged in this complaint, Respondent knew or should have known that misdemeanor convictions for obstructing a peace officer were not prior convictions appropriate for impeachment purposes.

Improper Closing Arguments

9. At no time did Respondent present evidence during his presentation of the State's case that Swartz had committed perjury or conspired to commit perjury, or otherwise testified untruthfully.

10. During closing arguments in case number 97 CF 1331, Respondent made the following statements in relation to Swartz:

***

And before she could get—could think about getting a chance to or think about this and think about lying about it or thinking about taking some other action about what she had done on that particular night, before she could talk to some lawyer who might try to talk her out of doing the right thing and pleading guilty in a fleeting moment for her of doing the right thing she pled guilty to exactly what she did in this particular situation.

***

Now of course she had nothing to lose because of that plea of guilty and she wants to help out her friends. And so she's here to testify, and she lie (sic) all she wants.

***

They have totally (sic) control over how this defense was conducted, how these witnesses were brought in. And it's amazing out of -out of 25 pals of their that were there, these were the best that they could come up with. They talked together about the case. All the rules go out the window.

11. Respondent's statements concerning Swartz' testimony were improper, and Respondent knew they were improper at the time he made them, as they implied that the defense witnesses had conspired to commit perjury or fabricated the defense and Respondent had not presented any evidence of same.

12. Following Respondent's comments regarding Swartz' testimony, Slabaugh's defense counsel objected and the judge sustained the objection.

13. As part of his defense, Slabaugh also presented the testimony of Corey Jones ("Jones"). Jones attended the birthday party and was involved in the fight. Jones was also charged with mob action, aggravated battery and resisting or obstructing a peace officer, but was tried in a separate jury trial.

14. At no time did Respondent present evidence during his presentation of the State's evidence that Jones had committed perjury or conspired to commit perjury, or otherwise testified untruthfully

15. After the objection in relation to Respondent's statements regarding Swartz was sustained, Respondent continued his closing argument and made the following statements in relation to defense witness, Jones:

Apparently nobody told these two defendants that you can't get—sit down together and get your stories straight and come into court and talk about it. Because that's what they told you they did.

***

And Mr. Gaziano [defense counsel] says, you know, that I say that these two guys concocted a defense, and where does that leave him. I can—can answer for him where that leaves him. That leaves him in the dark. Way long gone in a cloud of dust. Because before this man could get a chance to even talk to these two guys and tell them look, look you knuckleheads, don't get together and talk about your testimony, it looks stupid, it looks like you are lying, it looks like you are concocting a story, don't do it. Unfortunately for this man he got lost in a cloud of dust while they were creating their defense.

***

16. Respondent's statements concerning the two defendants and defense counsel were improper, and Respondent knew these comments were improper at the time he made them, as they implied that the defense witnesses had conspired to commit perjury or fabricated the defense and Respondent had not presented any evidence of same.

17. As part of his defense, Slabaugh also presented the testimony of Kenneth and Janet Kloweit ("Kloweits"). The Kloweits hosted the June 15, 1997 birthday party at which the fight broke out. Both of the Kloweits are school teachers in Rockford.

18. At no time did Respondent present evidence during his presentation of the State's evidence that the Kloweits had committed perjury or conspired to commit perjury, or otherwise testified untruthfully.

19. During his closing argument, Respondent made the following statements in relation to the Kloweits:

There are some things you can't teach teachers in the Rockford Board of Education if they don't have it in their whole lives, and that thing you cannot teach is integrity and the desire not to hide anything from the police and prosecution. And what does our good schoolteacher from the Rockford Board of Education teach us and teach these two guys? Don't talk to the police.

20. Defense counsel objected to these statements, and the court sustained the objection and advised Respondent to continue to another point.

21. Despite the court's warning, Respondent continued his closing argument and later made the following statements:

Well, that is really what is wrong with society today is that we—is some of the things that we teach our kids. And they turn out to use the court system as these two defendants did to put together this kind of a defense with friends like Jolie Swartz and Mike Rich.

22. Respondent's statements concerning the defense witnesses were improper, and Respondent knew these comments were improper at the time he made them, as they only served to inflame the jury.

Conviction Reversed

23. At the conclusion of the jury trial in case number 97 CF 1331, Slabaugh was convicted of mob action, aggravated battery and resisting or obstructing a peace officer. Slabaugh was sentenced to two years' conditional discharge, 21 days work release and ordered to pay fines and costs.

24. On May 25, 2000, Slabaugh filed an appeal of his conviction, asserting, in part, that numerous improper comments made by Respondent during the trial and during closing arguments deprived Slabaugh of a fair trial.

25. On July 20, 2001, the Second District Appellate Court of Illinois ruled that Respondent had presented improper impeachment of Swartz and Rich, and that Respondent's numerous arguments with no evidentiary basis, including that the defense witnesses were lying, and had concocted and created a defense, deprived the defendant of a fair trial. As a result, Slabaugh's conviction was reversed and remanded for a new trial. People of the State of Illinois v. Nathaniel Slabaugh, 323 Ill.App.3d 723, 753 N.E.2d 1170, 257 Ill.Dec. 544 (2001).

26. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. failure to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;

  2. making a statement of material fact that the lawyer should have known was false, while appearing in a professional capacity before a tribunal, in violation of Rule 3.3(a)(1);

  3. alluding to a matter that the lawyer did not reasonably believe was relevant and stating a personal opinion as to the credibility of witnesses, in violation of Rule 3.3(a)(10) of the Rules of Professional Conduct;

  4. failure to conform his conduct to the duty of a public prosecutor to seek justice, not merely convict, in violation of Rule 3.8(a) of the Rules of Professional Conduct;

  5. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  6. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT II
(Improper Closing Argument by a Prosecutor in relation to the Libberton matter)

1. On April 27, 2001, William Libberton ("Libberton") was charged with DUI and making a false report of a vehicle theft. The charges stemmed from a March 3, 2001 incident in which Libberton was found walking near a snow bank at 2 a.m. When a police officer stopped Libberton, Libberton stated that his car had been stolen. The car was located in a nearby snow bank. Libberton's then-girlfriend was found slumped over in the passenger seat of the car. The prosecution alleged that Libberton had been driving while intoxicated that evening and had falsified the theft report. The matter was docketed as People of the State of Illinois v. William T. Libberton, case number 01 CF 45 in the Circuit Court of Jo Daviess County.

2. On October 1 and 2, 2001, case no. 01 CF 45 was called for jury trial before Judge William A. Kelly. Respondent prosecuted the case in his capacity as the State's Attorney of Jo Daviess County. Libberton was represented by Joseph Nack.

3. During closing arguments in case number 01 CF 45, and in response to the State's argument that Libberton should not persist with his illogical claims regarding the stolen car, Nack emphasized Libberton's right to make the State prove its case and indicated that Libberton had a right to have a trial.

4. In his rebuttal argument, Respondent made the following statements:

…but Mr. Nack [defense counsel] begins his argument by asking you: there's no other choice, there is no other choice for this Defendant, right? No other choice. He's got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be honest, forthright. They go into the courtroom and they plead guilty.

5. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that negative comments about a defendant's exercise of his or her constitutional rights are improper because they penalize the defendant for the exercise of those rights.

6. At all times alleged in this complaint, Respondent knew or should have known that negative comments about a defendant's exercise of his or her constitutional rights are improper because they penalize the defendant for the exercise of those rights.

7. Respondent's statements as described in Paragraph Four, above, were improper, and Respondent knew these comments were improper at the time he made them, because they were negative comments about Libberton's exercise of his constitutional rights.

8. In his rebuttal argument, Respondent also made the following statements regarding the defendant:

…he wants to escape responsibility for his crime, because he wants to walk, because he wants to get back out on the street, back out after the verdict and yuck it up with the officers, ‘Hey-hey, you know, hey look what I did and got away with it.

9. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper to make comments which serve only to arouse the passions of the jury, particularly comments that attempt to turn the jury's verdict into a test of its support for law enforcement.

10. At all times alleged in this complaint, Respondent knew or should have known that it is improper to make comments which serve only to arouse the passions of the jury, and particularly comments that attempt to turn the jury's verdict into a test of its support for law enforcement.

11. Respondent's statements as described in Paragraph Eight, above, were improper, and Respondent knew these comments were improper at the time he made them because they served only to arouse the passions of the jury and attempted to turn the jury's verdict into a test of its support for law enforcement.

12. At the conclusion of case no. 01 CF 45, Libberton was convicted and sentenced to 180 days periodic imprisonment, placed on two years probation and ordered to pay fines and costs.

13. In January 2002, Libberton filed an appeal in the matter alleging, in part, that Respondent's statements during his closing argument and rebuttal denied him a fair trial.

14. On October 20, 2003, the Second District Appellate Court of Illinois delivered an opinion in Libberton's appeal finding that the State did make inappropriate statements in closing argument and rebuttal, specifically referring to negative comments made by Respondent in regard to the defendant's decision to choose a jury trial and the defendant's motive to lie, but the court held that while improper, these statements did not constitute reversible error, and therefore affirmed Libberton's conviction. People of the State of Illinois v. William T. Libberton, 346 Ill.App.3d 912, 927, 282 Ill.Dec. 705, 807 N.E.2d 1 (2d Dist. 2003).

15. On March 29, 2004, following Libberton's petition for rehearing, the Second District Appellate Court of Illinois delivered a second opinion in the Libberton matter. At that time, the court again found that Respondent's statements in closing and rebuttal argument were improper, but the court did not reverse the conviction because they found that Respondent's comments did not deprive Libberton of a fair trial. People of the State of Illinois v. William T. Libberton, No. 01 CF 45 (2d Dist. 2004) (unpublished).

16. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. failure to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;

  2. alluding to a matter that the lawyer did not reasonably believe was relevant, in violation of Rule 3.3(a)(10) of the Rules of Professional Conduct;

  3. failure to conform his conduct to the duty of a public prosecutor to seek justice, not merely convict, in violation of Rule 3.8(a) of the Rules of Professional Conduct;

  4. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  5. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT III
(Improper Closing Argument by a Prosecutor in relation to the Doll Matter)

1. On August 20, 2001, Robert F. Doll ("Doll") was charged with residential burglary. The charges stemmed from an August 11, 2001 incident in which Doll was picked up by Galena police after being spotted leaving a residence in which a burglary had just been reported. The residence belonged to Barbara Kuhn ("Kuhn"), who had woken up that evening to find someone rummaging through her purse. The suspect fled from her residence after he was spotted by Kuhn. It was alleged that Doll committed the crime. The matter was docketed as People of the State of Illinois v. Robert F. Doll, case number 01 CF 95 in the Circuit Court of Jo Daviess County.

2. On March 18 and 19, 2002, case no. 01 CF 95 was called for jury trial before Judge William A. Kelly. Respondent prosecuted the case in his capacity as the State's Attorney of Jo Daviess County. Doll was represented by Thomas Nack.

3. As part of his defense, Doll argued that the only disputed issue was identity and that Kuhn's identification was unreliable because at the time she reported the crime, she stated to the 911 operator that the man who committed the burglary was a young Hispanic, which Doll was not. Kuhn later identified Doll as the burglar after being shown a picture line up by the Galena police. Kuhn testified that she was too shaken up following the burglary to make an appropriate identification.

4. During his closing argument and rebuttal argument in case number 01 CF 95, Respondent made the following statements regarding Kuhn, the State's main witness:

***

[I]n addition to all the evidence, you have the identification of Barbara Kuhn. She's an honest lady and no motive whatsoever to lie.

***

Barb Kuhn is not perfect. She is not perfect but what I can tell you here and I know you observed when she testified, folks, is that she is honest. They can say whatever they want about a mistaken identification but it boils down, folks to honesty.

***

What we ask you to do is treat Barbara Kuhn fairly. Fairly is to recognize that she has told the truth because she has told the truth. This lady did not lie; she could not lie; it's not in her. She knows what an oath is.

5. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper for the State to vouch for the credibility of a witness.

6. At all times alleged in this complaint, Respondent knew or should have known that it is improper for the State to vouch for the credibility of a witness.

7. Respondent's statements as described in Paragraph Four, above, were improper, and Respondent knew these comments were improper at the time he made them because they amounted to the State vouching for the credibility of a witness.

8. During his closing argument and rebuttal argument in case number 01 CF 95, Respondent also made the following statements in reference to the defendant:

***

The burglar, this defendant, picks the place, a building, unsecure, filled with residents who are elderly, not as able to see or defend themselves against a young, quick criminal, such as himself.

***

Now, the problem with this spry, quick criminal that flees the season[sic] as this defendant did is, he didn't expect the police to be as fast.

***

Now, like a rat in a maze he's made several poor attempts to... (Objection - overruled) ….to exploit meaningless perceived technicalities to try and escape responsibility for this crime.

9. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper for the State to make arguments designed solely to inflame the jury.

10. At all times alleged in this complaint, Respondent knew or should have known that it is improper for the State to make arguments designed solely to inflame the jury.

11. Respondent's statements as described in Paragraph Eight, above, were improper, and Respondent knew these comments were improper at the time he made them because they were designed solely to inflame the jury.

12. At the conclusion of case no. 01 CF 95, Doll was convicted of residential burglary and sentenced to 20 years in prison.

13. In or around July 2002, Doll filed an appeal in the Second District Appellate Court of Illinois alleging that he was not proven guilty beyond a reasonable doubt and that improper prosecutorial argument denied him a fair trial.

14. On September 25, 2003, the Second District Appellate Court of Illinois delivered an opinion in Doll's appeal affirming his conviction. In a specially concurring opinion, however, Justice Gilleran Johnson stated that several of Respondent's remarks were clearly improper, particularly those in which Respondent vouched for the credibility of the State's witness, and those in which he referred to the defendant as a "rat in a maze." People of the State of Illinois v. Robert F. Doll, No. 01 CF 95 (2d Dist. 2004) (unpublished).

15. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. failure to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;

  2. alluding to a matter that the lawyer did not reasonably believe was relevant and stating a personal opinion as to the credibility of a witness, in violation of Rule 3.3(a)(10) of the Rules of Professional Conduct;

  3. failure to conform his conduct to the duty of a public prosecutor to seek justice, not merely convict, in violation of Rule 3.8(a) of the Rules of Professional Conduct;

  4. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  5. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT IV
(Improper Closing Argument by a Prosecutor in relation to the Townsend Matter)

1. On May 31, 2002, Shane M. Townsend ("Townsend") was charged with criminal sexual assault and aggravated criminal sexual abuse. It was alleged that Townsend sexually assaulted his fiancé's fifteen year old niece during a time period in which the niece lived with Townsend and his fiancé. The matter was docketed as People of the State of Illinois v. Shane M. Townsend, case number 02 CF 63 in the Circuit Court of Jo Daviess County.

2. On January 7, 2003, case no. 02 CF 63 was called for jury trial before Judge William A. Kelly. Respondent prosecuted the case in his capacity as the State's Attorney of Jo Daviess County. Townsend was represented by Donald G. Schweihs.

3. During his rebuttal argument in case number 02 CF 63, Respondent made the following statements regarding the reason that Townsend presented a defense:

***

[b]ecause he knows that we've [the State] proven our case beyond a reasonable doubt and he's desperate and he's got to put on every single thing to try and cover his tracks.

***

4. During his rebuttal argument in case number 02 CF 63, Respondent, in referring to the victim, also made the following statements:

***

[s]he looks like the same person that she has always been, a troubled child acting with self-preservation; not wanting to talk about it, not really wanting to be here except for the fact that because of him, she has to be here. Because of Pinocchio over here, she has to go through with this nightmare.

***

5. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper for the State to comment on a defendant's invocation of his right to present a defense, or to imply that the defendant's invocation of his right to trial further harms the victim.

6. At all times alleged in this complaint, Respondent knew or should have known that it is improper for the State to comment on a defendant's invocation of his right to present a defense, or to imply that the defendant's invocation of his right to trial further harms the victim.

7. Respondent's statements as described in Paragraphs Three and Four, above, were improper, and Respondent knew these comments were improper at the time he made them because they were a comment on Townsend's invocation of his right to present a defense and implied that Townsend's invocation of his right to trial further harmed the victim.

8. At the conclusion of case no. 02 CF 63 Townsend was convicted of one count of aggravated criminal sexual abuse and was sentenced to 364 days periodic imprisonment and two years probation.

9. In or around April 3, 2003, Townsend filed an appeal in the Second District Appellate Court of Illinois alleging, among other things that the prosecutor made improper prejudicial comments during closing argument.

10. On May 7, 2004, the Second District Appellate Court of Illinois delivered an opinion in Townsend's matter. There the court stated that they, "do not condone the prosecutor's conduct," but they ultimately concluded that it did not amount to reversible error, and they affirmed Townsend's conviction. People of the State of Illinois v. Shane M. Townsend, No. 02 CF 63 (2d Dist. 2004) (unpublished).

11. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. failure to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;

  2. alluding to a matter that the lawyer did not reasonably believe was relevant, in violation of Rule 3.3(a)(10) of the Rules of Professional Conduct;

  3. failure to conform his conduct to the duty of a public prosecutor to seek justice, not merely convict, in violation of Rule 3.8(a) of the Rules of Professional Conduct;

  4. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  5. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT V
(Improper Closing Argument by a Prosecutor in relation to the Coglianese Matter)

1. On June 21, 2000, Albert J. Coglianese ("Coglianese") was charged with aggravated reckless homicide. The charges stemmed from an April 23, 2000 incident in which Coglianese was involved in a car accident in which his brother, Anthony, died. It was alleged that Coglianese was driving the automobile while intoxicated, and Anthony was a passenger in the vehicle, when it went off the road and hit a tree in a residential yard. The matter was docketed as People of the State of Illinois v. Albert J. Coglianese, case number 00 CF 44 in the Circuit Court of Jo Daviess County.

2. On March 11 through 13, 2003, case no. 00 CF 44 was called for jury trial before Judge William A. Kelly. Respondent prosecuted the case in his capacity as the State's Attorney of Jo Daviess County. Coglianese was represented by Thomas Nack.

3. As part of his defense, Coglianese asserted that at the time of the April 23, 2000 accident, he was the passenger in the vehicle, and his now deceased brother was actually the driver of the automobile.

4. During his closing argument in case number 00 CF 44, Respondent made the following statements:

***

[a]s State's Attorney, I have the absolute power, right and duty to dismiss a case if I have any inkling whatsoever that this guy didn't do it; absolutely have to do it. Morally, legally, if there's any question in my mind, this case would not be here.

***

[w]hen I took office and I got that file, I looked at this case and I said, ‘Do you know what? To me, when I look at this case, it looks like to me he's guilty.

***

[a]nd so I got this case and it was not a dog to me. It was overwhelming, no question in my mind but I thought, you know what? He—I represent him too. He's a citizen here in this county and as a representative of him even though, even though the evidence is overwhelming; even though it's absolutely clear to me that he did this, you know what? I'm going to give him the benefit and what I'm going to do is I'm going to give him the benefit when I look as this overwhelming evidence of making sure everything is done.

***

[S]o here [the police] arrive at the scene, they look at the scene. Now clearly, there's no question in their minds of course that this defendant has done it. Now to you and me, we would come out to this scene and we would say, ‘You know what? He's caught there, his brother is dead. Cuff him, take him to jail, he's guilty.

***

5. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper for a prosecutor to express a personal opinion regarding the guilt or innocence of an accused, and that it is improper for a prosecutor to argue that he would not prosecute a defendant unless the prosecutor personally believed the defendant to be guilty.

6. At all times alleged in this complaint, Respondent knew or should have known that it is improper for a prosecutor to express a personal opinion regarding the guilt or innocence of an accused, and that it is improper for a prosecutor to argue that he would not prosecute a defendant unless the prosecutor personally believed the defendant to be guilty.

7 Respondent's statements as described in Paragraph Four, above, were improper, and Respondent knew these comments were improper at the time he made them because they were an expression of his personal opinion regarding Coglianese's guilt.

8 During his closing argument in case number 00 CF 44, Respondent also made the following statements:

[y]ou have the assurance that every police officer involved in this case, that the State's Attorney involved in this case were vigilant in making sure that no stone was unturned in covering every aspect of the investigation of this case to benefit him.

***

Now I did not and I would never want you to think for a minute as your elected State's Attorney that I would disgrace this honored courtroom by getting a file and saying, ‘Gee I can't dismiss it, this is a dog. I guess I'll just try it.' What a disgrace to this important office that I proudly hold as your elected official.

***

So I took some of your tax dollars and sent this to a private lab. Why? Because this case was a dog? No. I sent in that sample and used your tax dollars to send this to a private lab. Why? Because as Prosecutor, I wanted to make sure; …[that] this is the length I go through as the State's Attorney to make sure that there is proof beyond any possible reasonable doubt.

9. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper for a prosecutor to invoke the prestige of the prosecutorial office.

10. At all times alleged in this complaint, Respondent knew or should have known that it is improper for a prosecutor to invoke the prestige of the prosecutorial office.

11. Respondent's statements as described in Paragraph Eight, above, were improper, and Respondent knew these comments were improper at the time he made them because they amounted to an invocation of the prestige of the prosecutorial office.

12. During his closing argument in case number 00 CF 44, Respondent made the following statements:

[f]olks, it's all about criminals in the United States of America; that's what it's about and folks, Realty [sic] 101 there's too many of them! There are too many crimes that occur. There are too many crimes; there is too much blood. The resources are finite; absolutely finite and that's too bad but that's the truth, okay?

***

I am disgusted. I'm disgusted with drunk drivers. Drunken driving is disgusting and the reason drunken driving is disgusting is because people drink, they get double the legal limit. You speed, get on a country road, ooh-aah! He told us he's some hillbilly from Stockton. You're a little high; you're having a good time with your brother.

***

Remove [Anthony] from these ridiculous lies. [Y]ou would think—and this is why I talk about these lies, you would think he would just pack it up and say, well, okay, but not this defendant; no, not him. He doesn't have the decency to lay his brother's soul to rest without having to come into this courtroom and use him to try and escape responsibility for driving him into that tree at 80 miles an hour. How could you dishonor and disgrace your own flesh and blood brother like that?

***

Anthony's life has been disgraced by this opportunist.

13. At all times alleged in this complaint, case law related to closing arguments and rebuttal arguments provided that it is improper for a prosecutor to make arguments that serve only to arouse or inflame the passion or prejudice of the jury without shedding any light on the issues presented for the jury's determination, and it is improper to make negative comments about a defendant's exercise of his constitutional right to have a trial.

14. At all times alleged in this complaint, Respondent knew or should have known that it is improper for a prosecutor to make arguments that serve only to arouse or inflame the passion or prejudice of the jury, without shedding any light on the issues presented for the jury's determination, and it is improper to make negative comments about a defendant's exercise of his constitutional right to have a trial.

15. Respondent's statements as described in Paragraph Twelve, above, were improper, and Respondent knew these comments were improper at the time he made them because they served only to arouse or inflame the passion or prejudice of the jury without shedding any light on the issues presented for the jury's determination, and they amounted to negative comments about Coglianese's exercise of his constitutional right to have a trial.

16. At the conclusion of case no. 00 CF 44, Coglianese was convicted of aggravated reckless homicide and was sentenced to three years in prison.

17. On or around May 12, 2003, Coglianese filed an appeal in the Second District Appellate Court of Illinois alleging, among other things, that the prosecutor made improper comments during closing argument which denied him a fair trial.

18. In the appellate court's review of the matter, the court found "numerous improper comments" during Respondent's closing argument. The court further noted Respondent's "apparent disregard for appropriate prosecutorial conduct." However, the court held that Respondent's comments did not deny the defendant a fair trial, due to the overwhelming evidence of defendant's guilt. Therefore, they affirmed Coglianese's conviction.

19. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. failure to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;

  2. alluding to a matter that the lawyer did not reasonably believe was relevant, in violation of Rule 3.3(a)(10) of the Rules of Professional Conduct;

  3. failure to conform his conduct to the duty of a public prosecutor to seek justice, not merely convict, in violation of Rule 3.8(a) of the Rules of Professional Conduct;

  4. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  5. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

WHEREFORE, the Administrator requests that this case be assigned to a panel of the Hearing Board, that a hearing be conducted, that the panel make findings of fact and conclusions of fact and law and a recommendation for such discipline as is warranted.

Melissa A. Smart
Counsel for the Administrator
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: 312-565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Melissa A. Smart