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

In the Matter of:

RICHARD A. CURRENT,

Attorney-Respondent, 

No. 3122287.

 

Commission No. 08 SH 34

FILED -  May 8, 2008

COMPLAINT

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, Richard A. Current, who was licensed to practice law in Illinois on November 3, 1978, 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 improper closing arguments)

1. Between 1979 and 2007, Respondent was employed as an assistant State's Attorney in the State's Attorney's Office of Macon County, Illinois.

2. On March 12, 1999, police officers in Decatur, Illinois, responding to the sound of gunshots, detained Jacoby Wheeler ("Wheeler") and Shannon D. Hunter ("Hunter"). Shortly afterward, the police found Demetrian Forrest ("Forrest") shot to death in his car nearby and charged Wheeler and Hunter with Forrest's murder.

3. The State's Attorney's Office filed an information charging Wheeler and Hunter with the offense of first-degree murder. The matter was docketed as People v. Jacoby Wheeler and Shannon D. Hunter, No. 99 CF 344, in the Circuit Court of Macon County, Illinois. Respondent was assigned to prosecute the case.

4. Separate attorneys were appointed to represent Wheeler and Hunter. Because the death penalty could be imposed, the court appointed a second attorney for each defendant, as required by Illinois Supreme Court Rule 416(d).

5. On March 22, 2001, Respondent filed a notice of intention to seek the death penalty. In the notice, Respondent alleged that the aggravating factors that would allow imposition of the death penalty included that the defendants murdered Forrest in order to prevent him from testifying in another criminal matter. See 720 ILCS 5/9-1(b)(8) and (11). Respondent indicated that Forrest was to testify against Wheeler in People v. Jacoby Wheeler, No. 98 CF 1185, in the Circuit Court for Macon County, Illinois, in which Wheeler was charged with offenses of attempted first-degree murder and aggravated battery with a firearm.

6. On August 15, 2001, Wheeler and Hunter filed motions for the severance of their cases. At a hearing on August 17, 2001, Respondent objected to the motion, and the court denied it.

7. A jury trial commenced on August 21, 2001, and continued through September 20, 2001.

8. Respondent delivered his closing argument to the jury on September 17, 2001. Near the beginning of his closing argument, Respondent stated:

        "MR. CURRENT: A murder case is an unusually difficult type of case for the prosecution to prove because the defendant has killed the main prosecution witness. The deceased never gets to testify. The deceased never gets to tell his side of the story.

        Then, who is left to take up his cause and try to speak for him? Often, it's a lone prosecutor, a stranger, who is left to champion the deceased. A solitary figure appears in Court bearing the burden of avenging another's death and presenting the truth to a jury and the Court. But, often time, justice only requires a solitary champion because truth and justice is not a load as heavy as it appears. The load has an unspeakable lightness."

(Report of proceedings, pp. 30-31.)

9. Respondent's argument quoted in paragraph 8, above, was improper because it served no purpose other than to inflame the emotions and prejudices of the jury while shedding no light on the issues.

10. Respondent knew or should have known that his argument quoted in paragraph 8, above, was improper.

11. Respondent also made the following statements in his closing argument:

        I would suggest to you that you jurors lead sheltered lives. You stepped into a world, over a month ago, that to many of you never existed. You have no idea what kind of criminals and serious crime are lurking out there. There are dangerous people. There are mean streets. Not everyone lives in a peaceful neighborhood like you or has safe neighborhoods.

        The police are often referred to as ‘the thin blue line'. Well, what does that mean, ‘the thin blue line'? The police are there to protect you from the likes of Kenneth Lovelace, Gregory Williams, Andre Eubanks, Sean Marshall, Timothy Glass, Franklin Small. Who do citizens call—citizens of this County call when they need assistance? Who do citizens call when someone is breaking into their house or assaulting them? The police do not call Kenneth Lovelace, Gregory Williams, Andre Eubanks, etc.

        When you get up in the morning or your spouse gets up in the morning or a family member gets up in the morning and you go to work, are you risking your life to earn a paycheck? Are you putting your life on the line when you go to the office or your work? Yet, police-bashing seems to be a semi-popular sport until a citizen is in distress. Then, that same officer is expected to come to a citizen's salvation.

        Well, who do citizens want to serve and protect them in times of need? I would submit they want officers like Shane Brandel and Dan Street and Jason Derbort.

        Shane Brandel, you look at him, he looks like the boy who grew up next-door. The boy who grew up in the neighborhood who's finally an adult.

        Dan Street. Here's a man who served 4 years in the United States Marine Corps and then continued his service with the Decatur Police Department. A reserved, deliberate, low-key man.

        That's the advantage of a Jury Trial. You get to eyeball a witness when he testifies. You get to see him. You get to see how he reacts to questions, prosecution questions, defense questions. You get an idea for what kind of person you are dealing with.

        I would suggest to you that Shane Brandel and Dan Street are part of the new breed of policeman. These are men who are educated, intelligent, and well-spoken. They're not the coarse, muscle-bound brutes who can't find any other way of making a living.

(Report of proceedings, pp. 33-35)

12. Respondent's argument quoted in paragraph 11, above, was improper because he personally vouched for the credibility of witnesses and expressed his personal opinions about issues in the case; he suggested that witnesses were credible merely because they are police officers; he urged the jury to consider as relevant that police officers risked their lives; and he sought to inflame the emotions and prejudices of the jury.

13. Respondent knew or should have known that his argument quoted in paragraph 11, above, was improper.

14. Respondent also made the following statements in the course of his closing argument:

        Your eyes have, also, noticed that each defendant has two attorneys for a total of four attorneys representing these defendants. And contrary to representations made to you during the jury selection or voir dire, you have seen with your own eyes these are not two completely different independent teams of lawyers. You watch with your own eyes as they converse frequently. One will go back and ask another for assistance; one will talk to another attorney; then go back and start asking the same questions or different questions.

        MR. BAXTER [co-counsel for Wheeler]: Objection, your honor.

        THE COURT: Sustained.

        MR. BAXTER: Thank you.

        MR. CURRENT: You have four lawyers with in excess of 100 years of legal practice and 75 years of school grilling Shane Brandel.

        MR. MATTINGLEY [co-counsel for Hunter]: Again, objection.

        THE COURT: Sustained.

        MR. BAXTER: Thank you.

        MR. CURRENT: Consider who was questioning Shane Brandel and Dan Street; for Shane Brandel, an entire afternoon and an entire morning, and for Dan Street, four hours.

        MR. BAXTER: Same objection, Your Honor.

        THE COURT: Overruled.

        MR. CURRENT: Don't you think that vast array of legal talent who have had 2½ years to study this case inside out, top to bottom, is going to find some discrepancy with which they can hurl their mighty harpoons? If you didn't know it now, you do know trial lawyers are Monday morning quarterbacks.

        MR. CURRENT: Every Monday morning, they can tell you all the bad decisions the quarterback made the previous day while he was being double-blitzed.

        A trial lawyer can dissect, bisect, and magnify any past action, all with the benefit of 20/20 hindsight and all with the benefit of time and numbers. But, in the final analysis, the attorneys weren't there risking their lives on March the 12th of 1999. They were not in the arena.

        MR. BAXTER: Objection, Your Honor.

        MR. MATTINGLEY: Objection.

        THE COURT: Overruled.

        You may continue, Mr. Current.

        MR. CURRENT: The policemen were in the arena. So, in light of all this, is it too surprising that the defense attorneys obtained what they thought were some points in their favor? But, the rules of the game at which attorneys defend, operate, and go under seem to require a complete perfection on the part of a witness. If a witness isn't perfect, then, the skill of the attorney has revealed the witness to be a liar, the witness to be stupid, or the witness to be confused—

        MR. BAXTER: Objection, Your Honor.

        THE COURT: Overruled.

        MR. CURRENT: —any of which render the witness unworthy of belief. But, in the everyday real life world in which we all live, there is no perfection. In the real world, we judge each other by a less exacting standard. We realize that most people are hard-working, conscientious, capable, honest, and good-hearted people who do their best in a difficult and trying world. Can you think of any 2 minutes in your life in which you could withstand a full day of cross-examination by a four-lawyer team?

        MR. DAVIS [co-counsel for Wheeler]: Judge, I object. He's placing the Jury—

        THE COURT: Sustained.

        MR. CURRENT: Could you withstand —

        MR. DAVIS: I object, Judge. He's asking—he's putting the Jury in the place of the parties.

        THE COURT: That objection is overruled.

        MR. CURRENT: The attorneys made a great deal to[-]do about the police reports of Shane Brandel and Dan Street. Now, as a citizen, when you call the police, you expect an instant response. Even sooner if your life is at stake. You don't want to call 911 only to be told by the dispatcher the following message: ‘All available police officers are typing police reports at their typewriters and word processors at the present time. As soon as they are done performing their secretarial duties, they will be sent out on the street. And for your information, most of these officers just came in from a murder case, and we know how exacting[ly] the defense attorneys will cross-examine them.'

        MR. BAXTER: Objection.

        THE COURT: Sustained.

        MR. BAXTER: Ask the Jury to be instructed and to disregard that.

        THE COURT: The Jury is instructed to disregard the last comment.

        Proceed, Mr. Current.

        MR. CURRENT: ‘We know how closely their words will be examined; so, you can expect an additional 4 or 5 hours before the officers will be available so they can make sure that every word i[s] perfect, all syntaxes.'

        MR. BAXTER: I object to that.

        THE COURT: Overruled.

        MR. CURRENT: Your honor—

        THE COURT: Continue, Mr. Current.

        MR. CURRENT:—I would like to—

        THE COURT: Go ahead.

        MR. CURRENT: ‘Every word is perfect, all syntaxes are acceptable, and all paragraphs are sufficiently long enough to gain approbation from anyone.'

(Report of proceedings, pp. 36-41) (emphasis in original)

In his rebuttal argument on September 18, 2007, Respondent stated:

    You've also noticed from closing arguments from the defense, you hear everything twice. You hear the prosecution's story once. You hear the defense twice. It's almost like being in a room being brainwashed.

(Report of proceedings, September 18, 2001, p. 59)

15. Respondent's arguments quoted in paragraph 14, above, were improper because they served primarily to inflame the emotions and prejudices of the jury while shedding no light on the issues; urged jurors to think of their own safety as a relevant consideration in their deliberations; impugned the integrity of defense counsel; and suggested that the jury consider it relevant that defendants' attorneys cooperated with each other.

16. Respondent knew or should have known that his arguments quoted in paragraph 14, above, were improper.

17. In the course of the trial, Wheeler called Associate Judge Lisa Holder White ("White") to testify. White had represented Wheeler in No. 98 CF 1185 while she was in private practice before her appointment to the bench. White testified that in the course of her representation of Wheeler in that matter, she was not informed by the prosecution, and therefore she did not know, that Demetrian Forrest would be a witness. Under cross-examination by Respondent, White testified that she knew that Forrest could be a witness, because she had reviewed a police report that indicated that he had relevant information. However, in the course of Respondent's cross-examination, White refused to concede that she knew that Forrest would be a witness and maintained that she did not know whether the prosecution would call him.

18. In his closing argument, Respondent made the following statements on the subject of White's refusal to admit that she knew that Forrest would be a witness in No. 98 CF 1185:

        Then, last Thursday, you experienced a very sad and disgusting day when Lisa Holder White took the Witness Stand. A judge is a lawyer, but a judge, also, takes an oath to support and defend the Constitution of the United States and the Constitution of the State of Illinois and to enforce the laws of this State. Her testimony, last Thursday, at the behest of Jacoby Wheeler's attorney was revolting to any person who values the truth.

        MR. DAVIS: Objection.

        THE COURT: Sustained.

        MR. BAXTER: Ask the Jury to be instructed to disregard.

        THE COURT: Disregard that comment, Ladies and Gentlemen.

        MR. BAXTER: Thank you.

        MR. CURRENT: She is one of only nine judges based in this county who administer the law and a judge any of us may have to appear in front of if we have a legal case that we need to have decided impartially and truthfully.

She testified, under oath, that she did not know that Demetrian Forrest was a witness against Jacoby Wheeler in case No. 98-CF-1185. As she testified, one had visions of William Jefferson Clinton flashing before our eyes.

        MR. DAVIS: I object to that.

        THE COURT: Overruled.

        MR. CURRENT: Whether one is a Democrat, a Republican, or Independent, her performance was vintage Bill Clinton. While testifying before a Federal Grand Jury and when pressed on an issue, Clinton responded, ‘It depends on what your definition of "is" is.' At a news conference, Bill Clinton pointed his finger at the camera, while discussing Monica Lewinski, and declared, ‘I never had sexual relations with that woman.'

        MR. BAXTER: Objection.

        THE COURT: Overruled.

        MR. CURRENT: I guess it depends on what your definition of what ‘sexual relations' is.

(Report of proceedings, September 17, 2001, pp. 49-51) (emphasis in original)

19. At no time did Respondent introduce evidence that White testified untruthfully or committed perjury.

20. Respondent's argument quoted in paragraph 18, above, was improper because it accused White of giving false testimony when there was no evidence that her testimony was false and it merely differed from the testimony that Respondent wanted.

21. Respondent knew or should have known that his argument quoted in paragraph 18, above, was improper.

22. In the course of the trial, Respondent called Decatur police officer John Platzbecker ("Platzbecker") to testify. However, Platzbecker's testimony proved to be inconsistent with the testimony of other police officers and inconsistent with his own written report.

23. In his closing argument, Respondent made the following comment about Platzbecker:

        If you want a frank assessment of John Platzbecker, the police officer, maybe, his elevator doesn't run all the way to the top floor.

(Report of proceedings, p. 56)

24. Respondent's argument quoted in paragraph 23, above, was improper because it expressed his personal opinion about the credibility of a witness.

25. Respondent knew or should have known that his argument quoted in paragraph 23, above, was improper.

26. In the course of the trial, the defendants jointly moved for the admission into evidence of photographs of an alley through which one of the police officers testified that he chased the suspects. Defense investigators testified that they took the photographs in June and September, 2001. Respondent objected to the admission of the photographs on the basis that they did not depict the scene as it was in March, 1999, when the foliage was bare. The defense explained that they offered the pictures only to show the structures and layout of the area and offered to stipulate that they did not correctly depict the foliage in March, 1999. The court ruled that the photographs would be admitted but not for the purpose of depicting the vegetation.

27. In his closing argument, Respondent made the following statements:

        Now, in the effort to accurately bring you evidence to reflect upon in the jury room, this is what's been going on. Mr. Demetrian Forrest dies March 12th of 1999, and Dean Paisley is going out June 26th of 2001, in the middle of the summer, to take some pictures for you. Two years and three months later, somebody decides, well, it might be nice to have some pictures and it might be nicer if we took them in the summertime which is completely different from the winter as far as foliage and growth and, maybe, the Jury will fall for it.

Donald Hopper—

        MR. BAXTER: Objection, Your Honor.

        THE COURT: Overruled.

        MR. CURRENT: Donald Hopper. He waits until after jury selection starts. We're all in here trying to pick a jury, and he's out there snapping pictures. Now, it's two years and five months later, and he's out there taking pictures. Now, how serious are they about giving you accurate and fair information?

(Report of proceedings, September 17, 2001, pp. 82-83)

28. Respondent's argument quoted in paragraph 27, above, was improper because it impugned the integrity of defense counsel and unjustly accused them of trickery. The defendants had stipulated that the photographs were not admissible to depict the foliage.

29. Respondent knew or should have known that his argument quoted in paragraph 27, above, was improper.

30. On September 19, 2001, the jury, in No. 99 CF 344, found Jacoby Wheeler and Shannon Hunter guilty of first-degree murder. On September 20, 2001, the jury determined that they were eligible for the death penalty.

31. On September 21, 2001, Wheeler and Hunter waived a jury for sentencing. On September 24, 2001, the court found that there were sufficient mitigating factors to preclude imposition of the death penalty. On January 2, 2002, the court sentenced Wheeler and Hunter each to 55-year term of imprisonment.

32. On June 21, 2007, the Illinois Supreme Court filed a unanimous opinion that reversed Jacoby Wheeler's conviction and remanded the matter for a new trial. People v. Jacoby Wheeler, 226 Ill.2d 92, 871 N.E.2d 728 (2007). The Court found that Respondent's closing arguments, quoted in the paragraphs above, were improper and deprived Wheeler of a fair trial.

33. In its opinion, the Court stated:

        The prosecutor's closing argument in this case, considered in its entirety, appears deliberately designed to forge just the sort of "us-versus-them" mentality decried by this court in Johnson and foster a situation where jurors might feel compelled to side with the State and its witnesses in order to ensure their own safety. At the very outset of his remarks, the prosecutor suggested that he was the "lone" and "solitary figure" left to "champion the deceased" while "bearing the burden" of "avenging another's death." Later, he proposed that he was outnumbered by the defense attorneys, who were not interested in presenting the jury with accurate information but only strove to prove the police witnesses as liars. Moreover, through his mock presentation of a 911 call, he suggested that if the jurors felt that previously completed written police reports had to precisely corroborate police testimony at trial, police officers will no longer be able to effectively respond to emergencies, and the jurors might, in effect, compromise their own safety in the future. This strategy flows throughout the prosecutor's closing and is particularly evident when the statements properly objected to are considered in view of the rest of his closing argument and in context.

        The prosecutor told the jurors that they lived "sheltered lives" but a different dangerous world existed, "full of dangerous people" and "mean streets." He argued that while Shane Brandel and Dan Street, "the new breed of policeman," "men who are educated, intelligent, and well-spoken," formed the "thin blue line" to protect the jurors, witnesses called by the defense would not be called when "someone is breaking into their house or assaulting them." The prosecutor stated that his opinion of a witness who testified unfavorably to the State was that "his elevator doesn't run all the way to the top floor." Finally, in wrapping up his argument on rebuttal, the prosecutor cautioned the jury away from "being brainwashed" by the fact that "you hear everything twice" from the defense while it only gets the chance to "hear the prosecution's story once."

People v. Wheeler, 871 N.E. 2d at 748-749.

34. The Court also stated:

Considering the above, we find that a chief goal of the prosecutor's closing argument in this case was to inflame the passions and prejudices of the jury, uniting the interests of the jurors in their own safety with that of the interests of the State in convicting defendant. Such a goal is improper. The prosecutor in this case was not content to rely upon the strength of the State's evidence. He did not make a few solitary improper remarks. Instead, he utilized improper remarks, some unsupported by the evidence, to advance an "us-versus-them" theme. This theme was built piece by piece and is evident from the very beginning as the prosecutor launched his closing by portraying himself as a lone avenging champion. The theme continued throughout the prosecutor's argument and was advanced over objection and in spite of admonishment. The prosecutor suggested that police efficiency and expedience were more important than accuracy, and thereby urged the jurors to consider their own safety in deliberation rather than deliberating only on the actual guilt or innocence of defendant.

People v. Wheeler, 871 N.E.2d at 749.

35. On September 26, 2007, the Illinois Supreme Court entered an order that directed the appellate court to reconsider the appeal of Shannon Hunter, Wheeler's co-defendant, in light of its opinion in Wheeler. People v. Shannon D. Hunter, M.R. 101932. On January 28, 2008, the appellate court entered an order that reversed Hunter's conviction and remanded the matter for a new trial. People v. Shannon D. Hunter, No. 4-02-0130, in the Illinois Appellate Court for the 4th Judicial District.

36. By reason of the conduct described 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, stating a personal opinion as to the justness of a cause, 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 771 (currently 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 Counsel
Illinois Attorney Registration and
Disciplinary Commission
One North Old Capitol Plaza, Suite 333
Springfield, Illinois 62701
Telephone: (217) 522-6838
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Gary S. Rapaport
Counsel for the Administrator