BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 07 SH 86
FILED - August 28, 2007
Jerome Larkin, Administrator of the Illinois Attorney Registration and Disciplinary Commission, by his attorney, Gary S. Rapaport, pursuant to Supreme Court Rule 753(b), complains of Respondent, Kevin Carroll Kakac, who was licensed to practice law in Illinois on November 5, 1992, 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:
(Prosecutor's failure to disclose information and misrepresentation of information affecting the credibility of a key witness.)
1. On December 2, 1999, Brian L. Asher ("Asher") pled guilty to the offense of unlawful manufacture of methamphetamine, a Class 1 felony, in violation of 720 ILCS 570/401(c)(6.5), in a matter docketed as People v. Brian L. Asher, No. 99-CF-88, in the Circuit Court for Wayne County, Illinois. Asher was sentenced to six years imprisonment. He was released from the Department of Corrections on May 15, 2003.
2. On February 18, 2004, officers of the Fairfield, Illinois Police Department and the Wayne County Sheriff's Department, pursuant to the execution of a search warrant of Judy K. Ewing's ("Ewing") residence in Fairfield, Illinois arrested Ewing, Asher and Curtis D. Sutton ("Sutton") for offenses of possession of methamphetamine.
3. During execution of the search warrant, Asher was found in the bathroom attempting to flush items down the toilet. The items later tested positive for methamphetamine. Consequently, Asher was arrested also for the offense of obstruction of justice.
4. Ewing and Sutton were each found sleeping in separate bedrooms. Nothing containing methamphetamine was found in Sutton's bedroom.
5. In 2004, Respondent was the State's Attorney for Wayne County, Illinois.
6. On February 18, 2004, Respondent filed a one-count information against Asher charging unlawful possession of a controlled substance (simple possession), a Class 4 felony, in violation of 720 ILCS 570/402(c), on the basis of the events described in paragraphs 2, 3 and 4, above. No charge of obstruction of justice was filed.
7. On February 20, 2004, Respondent presented the cases against Sutton and Asher to the Wayne County Grand Jury. Sutton and Asher were indicted for the offenses of unlawful possession with intent to deliver a controlled substance, a Class 2 felony, in violation of 720 ILCS 570/401(d), and simple possession. The matters were docketed as People v. Sutton, No. 04-CF-53, and People v. Asher, No. 04-CF-50, both in the Circuit Court for Wayne County.
8. On May 6, 2004, the court appointed attorney Chris Elliott ("Elliott") to represent Sutton.
9. On June 3, 2004, Asher entered into a plea agreement wherein he pleaded guilty to the Class 4 felony, simple possession. In exchange, Asher would receive a maximum sentence of three years' imprisonment and the Class 2 felony charge of unlawful possession with intent to distribute would be dismissed. In the plea agreement, Asher also agreed to cooperate with prosecutors and police and agreed that if he failed to do so, the court would not be bound by the three-year maximum and could consider an extended range term of imprisonment. Assistant State's Attorney Patrick Hahn represented the State at the hearing.
10. On December 20, 2004, a jury trial in People v. Sutton, No. 04-CF-53, commenced. Respondent represented the State. Respondent indicated that Asher would be a witness for the State. Asher had not been sentenced in his own case, No. 04-CF-50, at that time.
11. Respondent knew or should have known the terms of Asher's cooperative plea agreement in No. 04-CF-50 set forth in paragraph 9, above.
12. At all times alleged in this Complaint, the law required that, in a felony matter, the prosecutor must make timely disclosure to the defense of the existence of evidence, known to the prosecutor, that tends to negate the guilt of the accused or mitigate the degree of the offense, including information that affects the credibility of witnesses.
13. At no time did Respondent disclose to Elliott or to anyone on behalf of Sutton that Asher entered into the cooperative plea agreement described in paragraph 9, above.
14. On December 21, 2004, the court conducted a hearing to determine the admissibility of Sutton's and Asher's prior felony convictions as impeachment evidence. Respondent provided to Elliott a list of Asher's prior convictions by case number, including No. 99-CF-88, but the list did not identify the offenses. Respondent represented that Asher's conviction in No. 99-CF-88, described in paragraph 1, above, was a "6-year sentence on chemical breakdown," referring to the offense of unlawful chemical breakdown of an illicit controlled substance, a Class 4 felony, 720 ILCS 570/401.5(a-5). The court ruled that Elliott could not impeach Asher with the conviction.
15. Respondent's representation that Asher's conviction in No. 99-CF-88 was for "chemical breakdown" was false. In that matter, Asher was convicted of the offense of unlawful manufacture of methamphetamine, a Class 1 felony, as set forth in paragraph 1, above.
16. The judgment of Asher's conviction for the offense of unlawful manufacture of methamphetamine would have been admissible to impeach Asher's testimony in the Sutton trial.
17. Respondent knew or should have known that his representation that Asher's conviction in No. 99-CF-88 was for "chemical breakdown" was false.
18. At no time prior to or during the Sutton trial did Respondent advise the court or opposing counsel that he had incorrectly represented Asher's conviction in No. 99-CF-88.
19. On December 21, 2004, Asher testified for Respondent in the Sutton trial. Elliott cross-examined Asher. In the cross-examination, Asher testified as follows:
Q. You indicated that you had pled guilty to possession of - you are awaiting sentencing. When did you plead guilty?
A. My recollection, I think it was June the 3rd.
Q. You pled guilty to possession, correct?
Q. Were you originally charged with anything else?
Q. What were you originally charged with?
Mr. Kakac: Your Honor, I object to that as relevance.
The Court: The objection is overruled.
A. Obstruction, I believe.
Q. (Mr. Elliott continuing) Have you been offered anything in exchange for testimony here today?
(Report of proceedings, page 73.)
20. Asher's above-described testimony was false and misleading. In fact, Asher originally was charged with possession with intent to deliver, a Class 2 felony, as set forth in paragraph 7, above. Asher was testifying pursuant to his agreement to cooperate in exchange for the dismissal of that charge and a three-year maximum sentence on the charge of simple possession, as set forth in paragraph 9, above.
21. Respondent knew or should have known that Asher's above-described testimony concerning the original charges against him and his agreement to cooperate with the State was false and misleading.
22. At no time did Respondent advise the court or opposing counsel that Asher's testimony regarding his original charges and his agreement with the State was false and misleading.
23. During closing argument in the Sutton trial, Respondent addressed Asher's testimony. Respondent stated to the jury, among other things, "I told you he was promised nothing. He was offered nothing."
24. Respondent's representations in his closing argument that Asher was promised nothing and was offered nothing were false.
25. Respondent knew or should have known that his statements in closing that Asher was promised nothing and was offered nothing were false.
26. On December 21, 2004, the jury found Sutton guilty of unlawful possession with the intent to deliver a controlled substance. A sentencing hearing was scheduled for March 24, 2005.
27. On January 14, 2005, Respondent represented the State at Asher's sentencing in No. 04-CF-50. Respondent discussed Asher's cooperation in the Sutton trial and stated that "it's for those reasons that we request that you enter this sentence, which you might see initially without that supporting information, as a departure from what is necessary."
28. On March 24, 2005, Sutton was sentenced to four years in prison. On May 18, 2005, Sutton filed a notice of appeal.
29. On February 21, 2007, the Appellate Court of Illinois for the Fifth Judicial District issued a Rule 23 order that reversed Sutton's guilty verdict and remanded for a new trial. People v. Sutton, No. 5-05-0305. The court concluded that Respondent denied Sutton due process of law because he failed to correctly identify Asher's previous conviction for unlawful manufacture of methamphetamine, he failed to correct Asher's testimony that he initially was charged with obstruction of justice and received nothing for his testimony, and he emphasized the lack of any plea agreement in closing arguments.
30. By reason of the conduct described above, Respondent has engaged in the following misconduct:
making a statement of material fact to a tribunal which the lawyer knows or reasonably should know is false, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct;
in representing a client, failing to disclose that which the lawyer is required by law to reveal, in violation of Rule 1.2(f)(3) of the Illinois Rules of Professional Conduct;
suppressing evidence that the lawyer has a legal obligation to reveal or produce, in violation of Rule 3.3(a)(13) of the Illinois Rules of Professional Conduct;
in criminal litigation, failing to make timely disclosure to counsel for the defendant of the existence of evidence, known to the prosecutor, that tends to negate the guilt of the accused or mitigate the degree of the offense, in violation of Rule 3.8(c) 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 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 to bring the court or the profession into disrepute, in violation of Supreme Court Rule 770.
WHEREFORE, the Administrator 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 recommendations for such discipline as is warranted.
|Gary S. Rapaport, Senior
Illinois Attorney Registration and
One North Old Capitol Plaza, Suite 333
Springfield, Illinois 62701
Telephone: (217) 522-6838