BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 07 SH 74
FILED - August 8, 2007
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Deborah Barnes, pursuant to Supreme Court Rules 753(b), complains of Respondent, James F. Baba, who was licensed to practice law in Illinois on November 9, 1995, 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:
(Theft, Dishonesty and Misrepresentation)
1. Between May 2003 and May 2006, Respondent was employed as an assistant state's attorney in Coles County, Illinois. Respondent's duties were to handle felony domestic violence cases and misdemeanor cases, as assigned by the State's Attorney.
2. On October 15, 2005, during a traffic stop, Coles County sheriff's deputies seized three plastic bags from a vehicle being driven by Steve Dollahan. Field testing by the arresting officer indicated that the bags contained cannabis. The seized evidence was secured in the evidence locker at the Coles County Sheriff's Department.
3. On October 17, 2005, Dollahan was charged in the circuit court of Coles County with two counts of driving under the influence of alcohol, illegal transportation of alcohol and improper lane usage. The charges were docketed as People v. Steven Dollahan, 05 DT 207, 05 TR 6102 and 05 TR 6103 (Coles County).
4. On October 26, 2005, a passenger in Dollahan's car, Matthew Niemerg, was charged in Coles County with illegal transportation of alcohol. That charge was docketed as People v. Niemerg, No. 05 TR 6111 (Coles County). On November 10, 2005, Niemerg was charged by information with possession of cannabis. Charges against Niemerg were docketed as People v. Niemerg, No. 05 CM 775 (Coles County).
5. On November 16, 2005, Dollahan pleaded guilty to the charges against him in Case No. 05 DT 207. The charges in case numbers 05 TR 6102 and 05 TR 6103 were dismissed. State's Attorney Steve Ferguson represented the State of Illinois at the hearing. Respondent was not assigned to People v. Dollahan, 05 DT 207 (Coles County) and at no time did he assist in the prosecution.
6. On November 16, 2005, Respondent appeared in Coles County Circuit Court on People v. Niemerg, No. 05 CM 775 and 05 TR 6111. On behalf of the State of Illinois, he asked that the charges against Niemerg be dismissed. An order was entered the same day dismissing the charges.
7. On Nov. 21, 2005, Respondent called Coles County Sheriff's Deputy James Redden, who was serving as the evidence custodian for the sheriff's department. Respondent advised Redden that he wished to retrieve the three plastic bags of cannabis that had been seized during the traffic stop that resulted in the charges filed in People v. Steven Dollahan, 05 DT 207, 05 TR 6102 and 05 TR 6103 (Coles County) and People v. Niemerg, No. 05 CM 775 and 05 TR 6111(Coles County).
8. During the November 22, 2005 telephone call, Respondent represented to Deputy Redden that he needed the items for "court purposes."
9. Respondent's representation to Deputy Redden, as set out in paragraph eight, above, that he needed the cannabis for court purposes on November 22, 2005, was false. On November 22, 2005, no case was pending which involved the 10.2 grams of cannabis as evidence.
10. Respondent knew that his representation to Deputy Redden, as set out in paragraph 8, was false.
11. Deputy Redden told Respondent that the material had not been tested by the Illinois State Police crime lab, but that he would make sure the substance in the plastic bags was tested appropriately before Respondent needed it.
12. After ending the conversation with Respondent, Deputy Redden contacted Mattoon Police Officer Scott Moran and made arrangements to meet him the next morning at the East Central Illinois Law Enforcement Training Center, where Officer Moran weighed and performed forensic testing on the substances. The test results were positive for cannabis.
13. At about 7:45 a.m. November 22, 2005, Deputy Redden returned to the Coles County Sheriff's Department and put the three plastic bags containing cannabis in a temporary holding locker, pending pick-up by Respondent.
14. At approximately 1:30 p.m. November 22, 2005, Respondent came to the Coles County Sheriff's Department to obtain the plastic bags.
15. Respondent signed a property receipt, writing on the receipt that the evidence was being received "for court," and Deputy Redden turned over possession of the three plastic bags of plant material, which contained a total of 10.2 grams of cannabis, to Respondent.
16. At no time did Respondent return the cannabis to the Coles County Sheriff's Office.
17. At all times while employed by the Coles County State's Attorney, Respondent was prohibited by the policy of the Coles County Sheriff's Office and the Coles County State's Attorney's Office to have possession of evidence without a court-related or employment-related reason to do so.
18. At all times while employed by the Coles County State's Attorney, Respondent was required by the policy of the Coles County Sheriff's Office and the Coles County State's Attorney's Office to return evidence to the custody of the sheriff if he did not need possession of it for work-related or court purposes.
19. At all times alleged in this complaint, 720 ILCS 5/16-1(a)(2) provided in part:
(a) A person commits theft when he knowingly:
(1) obtains or exerts unauthorized control over the property of the owner; or
(2) obtains by deception control over property of the owner.
20. By receiving the 10.2 grams of cannabis being held as evidence by the Coles County Sheriff's Department after falsely telling Deputy James Redden that he needed the evidence for court purposes, Respondent committed theft.
21. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
committing a criminal act, to wit, theft, in violation of 720 ILCS 5/16-1, which reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;
failure to hold property of a client or third person separate from the lawyer's own property, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct;
failure to deliver to a client or third person property that the client or third person is entitled to receive, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct;
conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
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
conduct which tends to defeat the administration of justice or brings the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
| Deborah Barnes, Counsel
Attorney Registration and
1 Old Capitol Plaza North, Suite #333
Springfield, Illinois 62701
Telephone: (217) 522-6838