Filed March 8, 2013
In re Laura J. Morask
Commission No. 2010PR00136
Synopsis of Review Board Report and Recommendation
This matter arises out of the Administrator's four-count complaint. In Count I of the Complaint, the Administrator charged Respondent with making false and misleading statements, while running for judicial office, regarding the disposition of a previous disciplinary matter that had been considered by an Inquiry Panel of the ARDC. In Counts II through IV, the Administrator charged Respondent with making improper statements in closing arguments in three criminal cases she prosecuted on behalf of the Cook County State's Attorney.
Following a hearing, the Hearing Board concluded that, as alleged in Count I, Respondent made misleading communications about herself in violation of Rule 7.1 of the Illinois Rules of Professional Conduct. However, the Hearing Board concluded that Respondent did not violate Rules 8.4(a)(4) or 8.2 with respect to Count I. As to Counts II through IV, the Hearing Board concluded that Respondent did not violate Rules 3.3(a)(10), 3.8, 4.4, or 8.4(a)(5) of the Illinois Rules of Professional Conduct and recommended that the three counts be dismissed. The Hearing Board recommended that Respondent be reprimanded for her violation of Rule 7.1.
Upon review, the Administrator argued that the Hearing Board erred in dismissing Counts II through IV and in finding no violation of Rules 8.2 or 8.4(a)(4) in Count I. The Administrator requested that the Review Board recommend a sixty-day suspension. The Respondent did not challenge the findings or the recommendation of the Hearing Board.
The Review Board, with one member dissenting, concluded that the Hearing Board erred in failing to find that Respondent violated Rules 8.4(a)(4) and 8.2 as to Count I by reason of her purposeful conduct during her judicial campaign in disseminating false and misleading statements and her disregard for the truthfulness of those statements. A majority of the Review Board also concluded that Respondent violated Rules 3.3(a)(10) and 8.4(a)(5) as to Count II by alluding, during her closing argument in a criminal case, to a matter that Respondent did not reasonably believe was relevant or that would not be supported by admissible evidence. The Review Board concurred with the findings and conclusions of the Hearing Board as to Counts III and IV of the Administrator's Complaint and recommended dismissal of those counts. The Review Board, with one member dissenting, recommended that Respondent be suspended for a period of thirty days.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
LAURA J. MORASK,
No. No. 6195102.
Commission No. 2010PR00136
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter arises out of the Administrator's four-count complaint. In Count I of the Complaint, the Administrator charged Respondent with making false and misleading statements, while running for judicial office, regarding the disposition of a previous disciplinary matter that had been considered by an Inquiry Panel of the ARDC. The Hearing Board concluded that Respondent, a twenty-year veteran prosecutor with 160 trials under her belt, violated Rule 7.1 but did not intend to deceive when she attempted to rebut a negative judicial evaluation, alleging improper closing arguments, by falsely stating, inter alia, that she had been "completely cleared" of these claims by the ARDC after a "full and complete hearing." Relying solely on Respondent's testimony that she sincerely believed the truth of what she wrote at the time, and was irrational and sleep-deprived due to the rigors of the campaign, the Hearing Board found Respondent did not violate Rule 8.4(a)(4), or 8.2(b). While the surrounding circumstances strongly suggest this finding was against the manifest weight of the evidence it is unnecessary for us to so conclude. Rather we accept the findings of the Hearing Board and conclude as a matter of law that Respondent did violate the foregoing rules by reason of her purposeful
conduct in disseminating false and misleading statements and her utter disregard for the truthfulness of those statements, the effect of which was to perpetrate a fraud upon the public. Where, as here, Respondent failed to take the simple step of verifying facts which were at all times in her possession, the fact that Respondent may have convinced herself that she was correct does not alter the underlying dishonesty because her belief, even if sincere, was entirely unreasonable.
In Counts II through IV, the Administrator charged Respondent with making improper statements in closing arguments in three felony criminal cases she prosecuted on behalf of the Cook County State's Attorney. The Hearing Board concluded that Respondent did not violate the Rules of Professional Conduct as a result of her conduct in the three matters and recommended that the three counts be dismissed.
We concur with the Hearing Board with respect to Counts III and IV and conclude that the Hearing Board erred in finding no violation of Rules 3.3(a)(10) and Rule 8.4(a)(5) in Count II.
The Hearing Board recommended that Respondent be reprimanded for her Rule 7.1 violation. The Administrator requested that this Board recommend a 60-day suspension. We recommend a suspension of thirty days for the reasons set forth herein.
STATEMENT OF FACTS
Respondent has worked as an attorney at the Cook County State's Attorney's Office since her admission to the bar in 1987. She has worked in various divisions of the State's Attorney's office. In 1998, she helped to open the sex crimes division of the office. In 2001, she began working in the gang crimes unit. From 2005 to the time of the hearing, she was deputy supervisor of preliminary hearings.
During her tenure as an Assistant State's Attorney, Respondent estimated that she handled approximately 160 jury trials. She continued to handle trial work through the summer of 2009. Of her 160 trials, she lost five or six cases at trial. At least 148 of her cases were appealed; "a handful" of the cases were reversed because of prosecutorial misconduct during closing arguments.
Respondent testified that as an Assistant State's Attorney, she attended and/or conducted many training seminars, including seminars in ethics. With respect to closing arguments, Respondent testified that prosecutors are given extremely wide latitude as to what they are permitted to say in arguments and that in more recent years, reviewing courts have increasingly criticized prosecutors for violating the bounds of appropriate comments in closing arguments, especially with respect to the tone of the argument and the use of sarcasm.
Count I: Respondent's Comments on Jack Leyhane's Blog
In Response to a Negative Judicial Evaluation
Between 2001 and 2003, the Administrator of the ARDC opened three separate investigations into Respondent's conduct following reviewing court decisions in three criminal cases. In each of the three cases, People v. Fluker, 318 Ill.App. 3d 193, 742 N.E.2d 799 (1st Dist. 2000), People v. Moss, 205 Ill. 2d 139, 792 N.E.2d 1217 (2001), and People v. Griffith, 334 Ill.App.3d 98, 777 N.E.2d 459 (1st Dist. 2002), the reviewing courts criticized Respondent for comments she made during closing or rebuttal arguments1. Respondent retained counsel to represent her in the disciplinary investigations. Her counsel drafted responses to the investigations and Respondent reviewed and approved the responses. Respondent also appeared for a sworn statement in November 2004.
In July 2005, Respondent was notified that the investigations were referred to the Inquiry Board of the ARDC. She received written notice that the Inquiry Board "shall determine
whether there is sufficient evidence for the filing of a complaint or petition with the Hearing Board" and that the Board "shall not determine the merits of the charge or conduct adversary hearings".
On December 13, 2005, Respondent and her counsel appeared before the Inquiry Board and requested that the Board decline to vote a formal complaint. Following her appearance, the panel concluded its investigation of the matters.
In February 2006, a majority of the Inquiry Panel concluded that formal disciplinary proceedings were not warranted at that time. However, because the Panel was concerned that Respondent's conduct during the trials in question may have been inconsistent with the requirements of the Rules, the panel sent a letter in which it "admonished" Respondent to review the Rules of Professional Conduct and to take steps to ensure that her future conduct was consistent with the Rules. The letter to Respondent ended by stating, "If the Panel receives evidence of similar conduct by Ms. Morask in the future, it may reopen this investigation for future review." Respondent acknowledged receiving a copy of the letter and reading it. At the time she received the letter, her attorneys told her an admonishment "was in the nature of a warning." She testified she took the admonishment to heart. Respondent also knew that proceedings before the Inquiry Board are confidential.
Two years after this written admonishment, Respondent decided to run for judge in Cook County's 12th Judicial Subcircuit. The race was contested. One month before the general election to be held on November 4, 2008, Respondent testified she took a leave of absence from the State's Attorney's Office to avoid the appearance of impropriety and interference with her work.
On or before October 3, 2008, the Chicago Council of Lawyers ("CCL") issued a report evaluating the judicial candidates for the election. The CCL had previously issued an
evaluation finding Respondent "Not Recommended" because of her decision not to participate in the bar association evaluation process. In the new evaluation, the CCL found Respondent to be "Not Qualified." The opinion noted that Respondent had refused to be evaluated by any of the bar associations and concluded that it was "clear why Ms. Morask refused to be evaluated" by the CCL. The opinion further stated, "For the past nine years, she has been cited numerous times by both the Appellate Court and the Illinois Supreme Court for prosecutorial misconduct. As a career Cook County prosecutor, Ms. Morask has the job of upholding justice?convicting guilty defendants while upholding the ethical framework of the criminal justice system. Based on court opinions she has done the former but has ignored the latter." The opinion then described seven appellate opinions from 1999 to 2006 in which Morask had been the Assistant States Attorney and had been criticized.
On October 15, 2008, Respondent learned of the CCL's evaluation in a meeting with her opponent and the editor of a local newspaper. Respondent testified that initially, she could not confirm online the CCL's evaluation of her. She viewed the evaluation as false and misleading.2
Respondent testified she saw the "Not Qualified" evaluation of her on a blog called "For What It's Worth" on October 21. Respondent testified she was "crushed" by the evaluation. After she saw the evaluation on the blog, Respondent conducted research to determine if judicial candidates could, under the Code of Judicial Conduct, respond to negative statements. She concluded that Canon 62 allowed for a response. She did not review the Rules of Professional Conduct, nor did she contact any attorneys including the attorneys who had represented her before the Inquiry Panel. She did not examine her own documents on the ARDC matter.
Respondent testified that on October 24, 2008, she confirmed that the CCL had, in fact, issued the amended evaluation. She then sent an e-mail to Leyhane in response to his post regarding her evaluation. The e-mail stated:
I am dumbfounded that the Chicago Council of Lawyers would be so dishonest and misleading to the voting public as to print their ?conspiracy theory' as to why I did not participate in their ratings. The simple fact is that had they or anyone else asked or researched the truth about these accusations at all, they could find that I had a full and fair hearing in the ARDC, the board that regulates conduct and was completely cleared. The chronology painted by the Council of Lawyers is a complete lie and extremely misleading to the public to say an intentional pattern of misconduct occurred. I have prosecuted the highest number of jury trials in Cook County and to have three (not nine) in which my sarcasm has been criticized is by far the best record of any attorney much less prosecutor. Only one of these cases was ever reversed and our office appealed it to the highest court. If one looks at the record instead of the conspiracy oriented drivel written by the Council you can see the following.
People v. SanAntone Moss-prosecuted in October 1998-jury convicted, sentenced to death for multiple murder, Governor Ryan communted (sic) in Mass Commutations.
People v. Roy Fluker-prosecuted in December 1998-Conviction and sentenced to 35 yrs.
People v. Evan Griffith-prosecuted in June, 2001, sentenced to life for second murder.
People v. Roy Fluker conviction reversed in opinion December 2000 (criticism of closing argument allowed by trial court pursuant to pre-trial proper motion)
People v. Moss-appeal and conviction affirmed (with criticism of closing argument allowed by Trial Judge) October, 2001 (commuted in mass Ryan commutations)
People v. Griffith-appealed with affirmance (sic) (criticism of my conduct which was pursuant to pre-trial motions allowed by Trial Judge) in opinion issued in 2002 which was then appealed to the Illinois Supreme Court by the defendant where no less a person than the State's Attorney of Cook County made a special appearance to argue to the Justices on behalf of my integrity and
lack of prosecutorial misconduct and to decry the misleading push to make it appear as if a pattern existed when in fact the chronology demonstrates the simple that the three cases were prosecuted before the first opinion issued, In other words, I never flouted any court ruling or admonishment. This fact was recognized by no less august a tribunal than the ARDC, and the Chicago Bar Association and the Northwest Suburbuan (sic) Bar who all had the same exhaustive application wherein one must attach any complaints.
I know this is long but I hope you will either edit and print in a blog or feel free to use a comment with my name attached. I can never figure out how to do that appropriately and unlike ?anonymous' have absolutely no problem putting my name on this comment. (emphasis added).
On November 2, 2008, Francis Leyhane, who testified he had no reason to doubt the accuracy of Respondent's statements in her e-mail, posted the majority of Respondent's comments on his blog, including the first two paragraphs noted above. The post was still in the archives section of his blog as of the date of the disciplinary hearing. Leyhane subscribes to a service that tracks the number of visits to his blog. The blog received a spike in traffic just prior to the election and then the number of visits dropped considerably.
Respondent acknowledged at hearing that some of the statements she made in the e-mail to Leyhane were false and misleading but denied that she intended to deceive anyone. She testified that she acted impulsively and composed the e-mail in "an irrational state of mind when you're really upset and angry and you're in the heat of the campaign with no sleep and just all the things that were going on." She acknowledged that she misspoke and that she was wrong in stating that she had had a full and complete hearing at the ARDC.
Respondent testified she believed her statements were true when she composed the e-mail. Specifically, with respect to her comment that the ARDC recognized that she never flouted a court admonishment, she testified that a member of the Inquiry panel recognized during her appearance before the panel that she had tried the three cases before receiving any court
opinion. With respect to her statement that she had been cleared by the ARDC after a hearing, Respondent explained that in her mind she analogized the process to a grand jury preliminary hearing. With respect to her statement that anyone could research the truth of the accusations, she stated that she was aware that proceedings before the Inquiry Board were confidential but she thought the confidence belonged to her and she knew that anyone who visited the website of the ARDC could find that she had never been disciplined.
The Hearing Board concluded that Respondent made inaccurate and misleading statements. They found she did not have a "full and complete hearing " before the ARDC, nor was she "completely cleared" by the ARDC and "the Panel's admonishment was clear and directly contradicted this claim". They found that her statement that anyone could conduct research to learn of the ARDC proceedings was also inaccurate because ARDC investigations and Inquiry Board proceedings are confidential. Finally, the Hearing Board noted that the Inquiry Board and the ARDC never decided that Respondent had not flouted a court ruling or admonishment. Accordingly, the Hearing Board concluded that Respondent violated Rule 7.1.
Nonetheless the Hearing Board concluded that Respondent did not violate Rules 8.4(a)(4) or 8.2(b). Rule 8.4(a)(4) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The Hearing Board found that Respondent did not violate the Rule because Respondent did not engage in any purposeful effort to deceive Leyhane or the individuals that read his blog, stating,
[W]e believe that in attempting to exculpate herself from eleventh-hour accusations which she believed were unjust, she acted in haste and mistakenly relied on her own perception of the Inquiry Board proceedings instead of consulting her attorney or examining her records. (emphasis added).
Because it found the statements were not made with the intent to deceive anyone, the Hearing Board concluded that Respondent did not violate Rule 8.2(b). Rule 8.2(b) provides
that a lawyer who is a candidate for judicial office shall refrain from conduct which, if the lawyer were a judge would be a breach of the Code of Judicial Conduct. Had the statements been intentionally made, the Hearing Board stated that the integrity of the judiciary would clearly have been called into question.
Counts II through IV: Respondent's Closing Arguments In Three Criminal Cases
As set forth in Counts II through IV, the Administrator charged Respondent with making improper statements in closing and/or rebuttal arguments in three felony cases she prosecuted as an Assistant States Attorney. Specifically, the Administrator charged Respondent with violating her duty to seek justice, rather than seeking merely to convict a defendant, in violation of Rule 3.8; alluding to matters she did not reasonably believe were relevant in violation of Rule 3.3(a)(10); using means having no substantial purpose other than to embarrass or burden a third person in violation of Rule 4.4; and engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5). The Hearing Board concluded that Respondent's actions did not amount to a violation of the Rules.
There is no dispute as to the facts regarding Respondent's statements on the three matters; the only issue is whether Respondent's remarks amount to professional misconduct.
People v. Jackson
As set forth in Count II, in August 2005 Respondent prosecuted Steven Jackson on charges of home invasion and murder. Jackson and two other men gained entry to the apartment of Tonette Waters, a woman they knew, intending to rob her. The offenders wore masks. After they fled the apartment, one of the defendants returned and shot and killed Waters. Waters' five-year-old daughter, Varielle, witnessed the shooting and was a witness for the prosecution. During the closing argument, Respondent commented:
What if Varielle had run out the door? Would they have shot her
too? Yes, but they counted on the fact these little kids wouldn't be able to identify anybody, that the little girl would be small, so the one that had to be killed is Tonette Waters.
Jackson's defense counsel did not object to Respondent's comment. Jackson was convicted of home invasion and murder based on the theory of accountability and was sentenced to prison.
On appeal, Jackson contended that Respondent's comment denied him a fair trial. The Illinois Appellate Court issued an opinion on December 18, 2008 upholding the conviction. However, the court commented that Respondent's argument that the victim's daughter would have been shot had she tried to leave the apartment was "deeply troubling" and "inappropriate", stating:
Although we recognize that prosecutors are permitted wide latitude in their closing arguments and that they may make comments that are based upon reasonable inferences drawn from the facts in evidence, the State may not, under the auspices of drawing "reasonable inference," from the facts in evidence, attribute acts to the defendant that simply did not occur. We find that the notion that the defendant or a codefendant would have shot the victim's daughter if she had left the apartment is a conclusion that is not based on facts in the record. Not only did the defendant not engage in those acts, the suggestion that it might have occurred is pure speculation and conjecture. We would caution the State to refrain from such speculation in the future, because, at the risk of reversible error, closing arguments must serve a purpose beyond inflaming the emotions of the jury.
Respondent testified she believed her statement was a fair comment and denied she was commenting on the defendant's future dangerousness or speculating about another crime. She testified if she were to try the case again, she would not use the same language.
People v. Burton
With respect to Count III, Respondent and another Assistant States Attorney prosecuted Sharon Burton in 1999. Burton was prosecuted for accountability in relation to her
live-in boyfriend's ritualized abuse and murder of Burton's three-year-old daughter. During closing argument, Burton's defense counsel argued that Burton was a "loving and protective mother" and described her as na?ve. During Respondent's rebuttal closing argument, Respondent referred to Burton as "Mother Theresa" and "June Cleaver". And also stated that the defendants "make Joan Crawford look like Harriet Nelson." Defense counsel did not object to the comments. Respondent testified she intended to use pop culture references in an attempt to appeal to the jury. She felt the comments were justified under the doctrine of invited comment and were made in the heat of the moment at the end of a lengthy trial.
Burton was convicted and appealed her conviction alleging, in part, that Respondent's comments denied her a fair trial. On March 31, 2003, the Illinois Appellate Court issued an opinion, People v. Burton, 338 Ill.App.3d 406, 788 N.E.2d 220 at 231-232 (1st Dist. 2003), which stated in part:
Though we do not condone the prosecutor's use of sarcasm, ?it is entirely proper for a prosecutor to denounce a defendant's wickedness, engage in some degree of invective, and draw inferences unfavorable to the defendant if such inferences are based upon the evidence.' [citations omitted]. The prosecutor was attempting to describe how Burton failed in her parental duty to prevent [her boyfriend] from harming [her daughter]. Given the undisputed graphic evidence in the record, Burton could not be prejudiced by prosecutorial remarks that were not out of proportion to what the jury properly considered as evidence.
The appellate court reversed Burton's conviction on other grounds. Respondent acknowledged that the comments could be considered sarcasm and she understood after reading the opinion that courts wanted prosecutors to tone down the rhetoric.
People v. Davis
As set forth in Count IV, in February 2001 Respondent prosecuted Willie Davis on charges of aggravated criminal sexual assault. Davis was accused of kidnapping and raping a
21-year-old pre-med student at the Circle Campus of University of Illinois. The victim testified at trial that the rapist had a knife and book bag with him and other witnesses testified they had seen Davis on campus with a book bag. Defense counsel argued that the victim's identification was unreliable and noted that when Davis was apprehended he did not have a book bag. During closing argument Respondent said,
[G]ive me a break, rape victim it's really tough to be a rape victim now because you don't describe the skull cap, describe it with the exact color and fiber content. Hold on a minute Mr. Rapist, I know that you're about to plunge your penis in me, but I think I need to take a picture of you so I won't get blamed later on in court for forgetting anything. Hold on Mr. Rapist, let me take a video of you so I won't call it a five o'clock shadow versus a goatee.
Respondent also stated during closing argument that Davis "got rid of the book bag, which by the way had a knife in it." Defense counsel objected and the court overruled the objection without comment. Respondent agreed that her comments were sarcastic but were justified as invited comment.
During the trial, defense counsel put on two witnesses in an attempt to prove that Davis had an alibi. One witness was an intake worker at a homeless shelter who identified Davis as staying at the shelter the night before the rape and leaving at a time that would have conflicted with the prosecution's timeline; the other witness was a Cook County Public Defender, a judge at the time of the disciplinary hearing, who initially represented Davis and who had interviewed the intake worker a few days after the rape. During her closing argument, Respondent referred to the two witnesses as "the worst witness ever to cross the courtroom floor" and "the second worst witness to cross a courtroom floor". She characterized both witnesses as "buffoons" and the lawyer witness as a "jerk" and "nasty". Defense counsel objected and the court overruled the objections.
Respondent testified at hearing that the intake worker was uncooperative and hostile on the stand and had waved at the defendant and giggled. She said the lawyer witness, Dan Gallagher, had injected hearsay comments at trial and had disclosed photos that had not been tendered to the State in discovery. She agreed her comments calling the witness a jerk and a buffoon were unprofessional and said she would not make the argument again if she had to do it over.
Davis appealed his conviction contending, in part, that Respondent's arguments were so egregious they denied him a fair trial. On May 7, 2004, the Illinois Appellate Court issued an opinion affirming the conviction. The court affirmed the conviction but noted that Respondent's comments that the two defense witnesses were "jerks" and "buffoons" were improper and "clearly exceeds the bounds of proper comment based on the evidence." Her statement that they were the worst witnesses tended to express a personal opinion and were "if not clearly improper, at least highly questionable." The court found the comment about the knife being in the book bag was not improper. Finally, the court noted that, with respect to Respondent's comments about the rape victim, "We are troubled, however, by the sarcastic tone of this comment. We question whether sarcasm even if an effective rhetorical technique ever has a place in a prosecutor's closing arguments. Nevertheless, although we do not necessarily approve of this argument, we can not conclude that it exceeded the bounds of proper argument." Davis's conviction was ultimately overturned on other unrelated grounds.
Count I: Whether Respondent Violated Rules 8.4(a)(4) and 8.2
The Administrator contends that the Hearing Board findings that Respondent did not violate Rules 8.4(a)(4) or Rule 8.2 must be reversed for two reasons. First, the Administrator argues that the Hearing Board's finding as to Respondent's intent is against the manifest weight
of the evidence. Second, the Administrator argues that Respondent's actions should be viewed as dishonest given the Court's recent decision in In re Thomas. Thus Respondent's actions violate Rule 8.4(a)(4) and consequently Rule 8.2.
Upon review, the factual findings of the Hearing Board are entitled to deference, and they are not to be disturbed unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). However, upon review, questions of law, including determinations as to whether or not there have been violations of the Rules of Professional Conduct, have been considered by this Board under a de novo standard of review. See, e.g., In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010) at 12, recommendation adopted, No. M.R. 24030 (Sept. 22, 2010). While we harbor serious doubts as to the correctness of the Hearing Board's finding that Respondent did not intend to deceive by her false statements we believe that, even taking those findings as true, Respondent has violated Rule 8.4(a)(4) and consequently Rule 8.2.
We rely on the Court's recent decision in In re Thomas, and on the importance to the public and to the legal profession of lawyer truthfulness in seeking judicial office. A judicial candidate cannot engage in falsehoods while shutting her eyes to the truthful information that is readily available simply because she is tired, upset and thinks she has been unfairly attacked. We must and do expect more from our profession.
While the Hearing Board's findings as to Respondent's intent are subject to deference, the Illinois Supreme Court has stated, "motive and intent are rarely susceptible to direct proof and must generally be inferred from the attorney's conduct and the surrounding circumstances." See, In re Stern, 124 Ill.2d 310, 315, 529 N.E.2d 562, 565 (1988). In assessing an attorney's conduct, this Board is not required to be naive, impractical, or blind to the intent apparent from the evidence. In re Krasner, 32 Ill.2d 121, 127, 204 N.E.2d10, 13(1965).
Furthermore, where a respondent's testimony is inconsistent with his actions and conduct, it can also be properly rejected. In re Guilford, 115 Ill.2d 495, 501, 505 N.E.2d 342, 345 (1987). That being said we accept the Hearing Board's findings of fact for purposes of our analysis.
As stated above, the Administrator contends that even if this Board does not reverse the Hearing Board's finding of fact as to Respondent's intent, Respondent's false statements violated Rule 8.4(a)(4) given the Court's analysis in In re Thomas, 2012 IL 113035. We agree.
It is important to note at the outset that the Hearing Board made no mention of Thomas and thus, not surprisingly, made no finding with respect to the reasonableness of Respondent's belief. While there is no way of knowing with certainty if this case was considered by them, most likely it was not. The explanation is timing: the Supreme Court's opinion was filed on January 20, 2012 and the Hearing Board Report was filed on February 10, 2012.3
The Court's decision in the Thomas case followed two previous decisions analyzing Rule 8.4(a)(4), In re Cutright, 233 Ill.2d 474, 910 N.E.2d 581 (2009) and In re Mulroe, 2011 IL 11378. In Cutright, the respondent had prepared income tax returns at no charge for a judge before whom the attorney appeared. The respondent had failed to disclose his arrangement with the judge to opposing counsel. The Hearing Board concluded that the respondent had made improper gifts to the judge but had not engaged in dishonest conduct because he was "simply oblivious about his ethical obligations and the existence or appearance of an impropriety." 233 Ill.2d at 488-489. Before this Board and the Court, the Administrator claimed that the respondent violated the rule because the respondent behaved recklessly. The Court in its opinion noted that in two prior cases involving Rule 8.4(a)(4) there was some conduct that was considered by the Boards to be "purposeful". Respondent Cutright, by contrast, had made no false statements and thus had engaged in no purposeful false activity. The Court declined to reverse the findings of
the Hearing and Review Boards, stating, "There is essentially no way to define every act or form of conduct that would be considered a violation of Rule 8.4(a)(4). Each case is unique and circumstances surrounding the respondent's conduct must be taken into consideration." Id. at 490.
In Mulroe, the Hearing Board concluded that the respondent converted funds but did not engage in dishonest conduct. The Administrator contended upon review that conversion is inherently dishonest and that recklessness with respect to the handling of client funds creates a presumption of dishonesty. The Court rejected the Administrator's arguments, noting as it did in Cutright that each case alleging a violation of Rule 8.4(a)(4) must be decided on its own merits. The Court stated that while recklessness may, in some circumstances, indicate a dishonest intent, the Court deferred to the Hearing Board's finding that the respondent was unaware of his ethical responsibilities, engaged in sloppy practices, but did not have dishonest intent.
In Thomas, the Court most recently analyzed Rule 8.4(a)(4) and cast light on the thorny issue of whether a sincere belief will excuse dishonest conduct. Respondent Thomas had continued to practice law after he was suspended and after he had been told that his motion to challenge his discipline did not stay the suspension. The Administrator charged him with the unauthorized practice of law and dishonest and fraudulent conduct in violation of Rule 8.4(a)(4). Thomas argued that he believed the suspension order had been stayed when he filed a petition for rehearing and therefore he lacked the intent to violate Rule 8.4(a)(4). The Court stated that his belief that his practice was authorized was unreasonable and his reading of the rules was incorrect. The Court stated, "The fact that he may have convinced himself that his suspension was stayed does not alter the underlying dishonesty because his belief, even if sincere, was entirely unreasonable." 2012 IL 113035 at 123. The Court noted that a violation of Rule 8.4(a)(4) does not necessarily require evidence that the conduct was intentional. The Court concluded that
Thomas's unauthorized practice violated Rule 8.4(a)(4) because he intentionally and purposefully engaged in the acts that constituted the unauthorized practice and the effect of his conduct was to perpetuate a fraud upon the court.
Likewise, Respondent's act in drafting and sending the e-mail for publication was an intentional and deliberate act. Respondent's e-mail was undisputedly intended to blunt the criticism of her conduct in the CCL evaluation. Respondent's actions may have been "in haste" but were not inadvertent: she had three days to craft her 700 plus word response to the blog post and the CCL evaluation. At the time she drafted her response, she should have known and could easily have known that she had not been exonerated by the ARDC, contrary to the impression she created in the response. While she may have been "upset" and "sleep deprived" as she has claimed, she clearly had the presence of mind to research the Code of Judicial Conduct and to describe in some detail the very cases that were the subject of the ARDC Inquiry Board proceedings, yet she did not take the obvious and simple step of looking at her own letters from the ARDC which were clear and unambiguous. Like attorney Thomas she "chose not to take the simple step of verifying her status".
The effect of the e-mail was deceitful and, under the Court's analysis in Thomas, Respondent violated Rule 8.4(a)(4). Her beliefs, even if sincere, that she had a full hearing before the Inquiry Board, that she had been exonerated, that the public could learn the outcome of the ARDC's investigation, and that she did not believe her statements were deceptive to readers of the blog, were "entirely unreasonable". See, Thomas, 2012 IL 113035 at 123. Those "beliefs", like those of Thomas, simply ignored unpleasant facts that were clear as day and readily available. Both Respondents chose to recklessly shut their eyes and engage in the sort of wishful thinking that would allow them to accomplish ends which would not be possible if they had verified easily verifiable facts. In so doing they violated Rule 8.4(a)(4).
We also conclude that Respondent violated Rule 8.2(b), which provides that a lawyer who is a candidate for judicial office shall refrain from conduct which, if the lawyer were a judge, would be a breach of the Code of Judicial Conduct. The relevant provision of the Code of Judicial Conduct, Rule 62, states that a judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Dishonest statements made by a judicial candidate do not promote public confidence in the integrity and impartiality of the judiciary. See, e.g., In re Tully, 2 Ill.Cts.Com. 150, 153-58 (Oct. 25, 1991) (judge running for seat on appellate court authorized misleading campaign literature); In re Golniewicz, 02 CC 1 (Nov. 15, 2004) (judge violated Rule 62 by making false statement of residency on a declaration of candidacy form).
Counts II through IV: Whether Respondent Engaged in
Misconduct in Closing Arguments in Three Criminal Cases
As noted by the Hearing Board, although prosecutors are afforded "wide latitude" during closing arguments, their comments must be based on facts and evidence or upon reasonable inferences, and cannot simply serve to inflame the passions or develop the prejudices of the jury. See, e.g., People v. Williams, 181 Ill.2d 297, 692 N.E. 2d 1109, 1126 (1998). The Rules of Professional Conduct recognize the importance of the prosecutor's duties. Rule 3.8(a) provides, "The duty of a public prosecutor or other government lawyer is to seek justice, not merely to convict."
In each of the three cases, the Hearing Board concluded that the Administrator failed to prove as a matter of law that Respondent violated the Rules of Professional Conduct. The Hearing Board considered Respondent's explanations for her conduct as a basis for concluding that under Rules 3.3, 3.8, and 4.4, Respondent had a reasonable basis for her belief
that the statements in question were relevant and justified by the evidence and thus were germane to the question of whether she was seeking justice.
We do not believe that the Hearing Board erred in concluding that Respondent's statements in People v. Burton and People v. Davis, the subject of Counts III and IV of the Administrator's Complaint, failed to amount to professional misconduct warranting a sanction. While Respondent's comments in the closing arguments in question may have been needlessly sarcastic, we agree with the Hearing Board that such conduct does not necessarily amount to professional misconduct. We also note that professional misconduct is not shown every time an attorney makes a mistake. In re Weber, 07 CH 61 (Hearing Bd., May 3, 2012), approved and confirmed, No. M.R. 25400 (Sept. 17, 2012), citing In re Mason, 122 Ill.2d 163, 522 N.E. 2d 1233 (1988).
However, with respect to Count II of the Administrator's Complaint, involving Respondent's statements in closing arguments in People v. Jackson, we conclude that the Hearing Board erred in failing to conclude that Respondent violated Rule 3.3(a)(10) and Rule 8.4(a)(5) when she alluded to facts not in evidence by commenting to the jury that the defendant would have shot the victim's five- year- old child had the child attempted to leave the apartment.
Respondent prosecuted Steven Jackson on charges of home invasion and murder. The evidence was that all defendants wore disguises and that a codefendant shot the victim because his disguise had fallen off during the home invasion and the motive was to prevent identification. With respect to Respondent's argument that the child would have been shot, the Illinois Appellate Court found that Respondent's argument was "not based on facts in the record". Unlike the Hearing Board, the Appellate Court had the opportunity to actually review the record.
Rule 3.3(a)(10) provides in pertinent part that a lawyer shall not, in trial, "allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, ? but a lawyer may argue, on analysis of evidence, for any position or conclusion with respect to the matter stated herein." Respondent's statement that defendant would have murdered a child was based on speculation and was not justified by an analysis of the evidence.
The Hearing Board stated it gave "substantial weight" to "Respondent's explanation that her statement was "relevant" because it was made in her attempt to establish Jackson's accountability for the actual murder by pointing to his role in wearing a disguise and bringing a gun to the scene. Setting aside the apparent lack of logic in this statement, we conclude as a matter of law that a reasonable prosecutor would not have felt the need to argue that another person, let alone a child, would also have been murdered as a potential eyewitness when the evidence already demonstrated that the actual victim had been shot because she was a potential eyewitness. This statement did nothing to advance Jackson's accountability. Postulating the victim's 5 year-old child as an additional, hypothetical victim added nothing to the case against Jackson and clearly would tend to inflame and prejudice the jury.
We conclude the Hearing Board erred as a matter of law in its conclusion that Respondent's statement was based on a "reasonable belief" that the statement was relevant. The recent disciplinary case, In re Weber, 07 CH 61 (Hearing Bd., May 3, 2012), approved and confirmed, No. M.R. 25400 (Sept. 17, 2012), illuminates the standard for "reasonable belief" regarding a prosecutor's statements in closing arguments. Respondents must "subjectively" or actually believe her statement was relevant and that belief must also meet the test of a "reasonably" prudent and competent prosecutor. " Lack of a reasonable belief can be found if a
professed subjective belief is unreasonable given the objective facts." Weber, Hearing Bd. Report at 65, citing In re McGlynn, 03 CH 119, No. M.R. 20538 (Jan. 3, 2006).
While the Hearing Board in Weber decided that Respondent did not violate Rule 3.8 because Respondent's intent was not merely to convict but was to seek justice, they concluded there was a violation of Rule 3.3(a)(10). They reasoned that Rule 3.3(a)(10) does not require the Administrator to prove that the respondent acted with a specific intent or knew that his conduct was improper. With respect to its determination as to whether the respondent alluded to a matter that the lawyer did not reasonably believe was relevant, the Hearing Board stated that Rule 3.3(a)(10) "does not depend solely on subjective state of mind but whether the attorney's belief is an objectively reasonable one." The Hearing Board analyzed the respondent's statements to determine objectively whether the respondent improperly alluded to matters he could not reasonably view as relevant and concluded that he did. Further, since the respondent's statements were sufficiently serious to warrant separate opinions or consideration by the appellate tribunal, the board concluded the respondent's conduct also tended to defeat the administration of justice in violation of Rule 8.4(a)(5).
We believe Weber properly analyzed the prosecutor's statements under the Rules of Professional Conduct. Because Respondent Morask attributed acts to the defendant that did not occur and were not based on any evidence, Respondent could not reasonably believe that her comments were relevant or were supported by the evidence. Accordingly, we conclude that Respondent violated Rule 3.3(a)(10). Because Respondent's statements were sufficiently serious to warrant comment by the appellate court, we also conclude that her conduct tended to defeat the administration of justice in violation of Rule 8.4(a)(5).
The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981(2006). In determining the appropriate sanction, this Board considers the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003).
While Respondent's misconduct consists of two isolated acts, her conduct has tarnished the integrity of the legal profession. Respondent made false statements in her effort to become a judge, a position that demands that she be objective, honest and fair and that she be perceived as such by the public at large. The Preamble to the Illinois Code of Judicial Conduct states, "Intrinsic to all provisions of this code are precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system." Respondent's conduct violated these basic precepts by making false statements regarding her own failings. That she lost her election does not alter our view of the importance of her misconduct. Further, by making an improper statement in a closing argument in a criminal case she was prosecuting, she also violated the public trust and tarnished the reputation of the States Attorney's Office.
Respondent presented significant evidence in mitigation. Numerous attorneys, including former Cook County State's Attorney Richard Devine, testified as to Respondent's good reputation for truth and veracity. Judge Wadas testified that Respondent tried three jury trials before him and he saw her as a role model to younger attorneys. Respondent testified she has been involved in many community and school activities. She has been an elected trustee in Maine Township for eleven years. She has been involved in organizing a National Night Out
Against Crime program. She has contributed money to charitable organizations and civic groups. She has received awards, including a Victim Service Award in connection with her prosecution of a murder case. She has not been previously disciplined and expressed remorse to the Hearing Board for her conduct. Respondent has acknowledged that she made mistakes and has vowed to carefully conduct herself pursuant to the Rules of Professional Conduct in the future.
In aggravation, this matter is unusual in that the Administrator presented evidence that refuted the mitigating character evidence offered by the Respondent. Attorney Elizabeth Botti, a former attorney for the Illinois Appellate Defender's Office, testified that she assisted in creating a database for cases in which prosecutorial misconduct was claimed or was found. Ms. Botti concluded that Respondent had a reputation as a prosecutor who has repeatedly engaged in misconduct, particularly during closing argument. Harold Winston, a supervisor in the Cook County Public Defender's Office, testified that in the community of public defenders, Respondent had a negative reputation for truth and veracity. Winston went to the very unusual step of creating a motion in limine for attorneys in his office to use if they had a case against Respondent. The form motion requested the court to prevent Respondent from making improper arguments.
We conclude that Respondent's misconduct warrants a suspension from the practice of law. The Illinois Supreme Court has recognized that the public is entitled to honesty by judicial candidates and has previously suspended an attorney for making false statements in documents produced in the attorney's quest to become a judge. In In re Bourgeois, 01 CH 97 (Review Bd., Sept. 26, 2003), Respondent's petition for leave to file exceptions allowed, No. M.R. 19087 (Jan 20, 2004), the attorney made a number of false statements on an application to be considered for an appointment as associate judge. For instance, he falsely stated he had never been the subject of a complaint at the ARDC, that he was not in default on any student loan, that
he had never been held in contempt in any case, and that he had been a party only on one legal case. The Court suspended Bourgeois for two months. See also, In re Golniewicz, 02 CC 1 (Nov. 15, 2004) (judge removed from the bench for making improper comments to criminal defendants and jury and for making false statements regarding his residency including on a declaration of candidacy form).
In a similar matter, in In re Gorecki, 208 Ill.2d 350, 802 N.E.2d 1194 (2003), the Court suspended the attorney, a former Assistant State's Attorney in Kane County, for four months for engaging in dishonesty by leaving three voicemail messages for a friend, falsely telling the friend that the friend's boyfriend could obtain a county job by paying a bribe to the Chairman of the Kane County Board.
Respondent's misconduct was not limited to her false statements in her blog post. While her violation of Rules 7.1, 8.4(a)(4), and 8.2 warrant a sanction greater than the Hearing Board recommendation of a reprimand, Respondent also engaged in misconduct while prosecuting a criminal case. We are particularly troubled by the fact that Respondent was in the midst of the ARDC Inquiry Board investigation regarding other allegations of improper prosecutorial arguments at the time she tried the Jackson case. What should have been a sobering and instructive encounter with the disciplinary process did not serve to make Respondent more careful.
Sanctions have been imposed upon prosecutors who have made improper comments during criminal trials. See, e.g., In re Garza, 86 CH 21 (Hearing Bd., Dec. 18, 1986), approved and confirmed, No. M.R. 4206 (May 3, 1987)(Respondent censured after he called a defense witness a liar, "a member of the oldest profession known to man", and other names during trial, and repeated an obscenity expressed by a witness after the witness goaded him. As a result, the defendant's sentence was vacated and remanded for new sentencing.); In re Current,
08 SH 34, petition for discipline on consent allowed, No. M.R. 22811 (Jan. 20, 2009)(attorney censured for making improper statements in closing argument where two defendants were charged with murder. Respondent stated a personal opinion about the credibility of a witness, made sarcastic comments, alluded to irrelevant matters, and accused defense counsel of submitting inaccurate evidence).
Given Respondent's conduct in making the false statements to the blog as well as making an improper statement in a closing argument, we believe that a suspension of thirty days serves the purposes of the disciplinary process. Accordingly, we recommend to the Court that Respondent, Laura J. Morask, be suspended for thirty days.
Jill W. Landsberg
1 These are not the cases that are the subject of Counts II through IV in this proceeding.
2 She noted that the chronology of the seven appellate opinions was based on the dates of the court opinions, rather than on the underlying trials, giving the reader the misleading impression that Respondent would repeatedly receive a court opinion criticizing her conduct and then would go into court and violate that opinion. She also objected to the CCL's characterization of the court opinions as examples of "prosecutorial misconduct", noting the difference between a finding of prosecutorial misconduct by a court and a criticism in an opinion by a court. Finally, she testified that she objected to the inference that she had avoided the bar associations' evaluations of her and explained that she had a conflict with the screening deadlines because of a family vacation.
3 The dissent argues that the Hearing Board finding of "no dishonest intent" includes an "inherent finding" that her belief that her statements were true was "reasonable". No support is offered for this argument. Respondent's own counsel acknowledged that no such finding was made in response to a direct question from the Panel at oral argument and the failure of the Hearing Board to reference Thomas makes it even more unlikely that any "inherent" finding was made.
Daniel Duffy, Panel Member, concurring in part and dissenting in part:4
I respectfully dissent from the majority's opinion. I would uphold the findings of the Hearing Board and the recommendation of a reprimand.
Upon review, the factual findings of the Hearing Board are entitled to deference, and they are not to be disturbed unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). For a finding on this basis, the opposite conclusion must be clearly evident. That the opposite conclusion is reasonable is not sufficient. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E. 2d 961(2006). A respondent's credibility is to be determined by those who have heard and observed the testimony; the Hearing Board thus "stands in a superior position to judge credibility." In re Woldman, 98 Ill. 2d 248, 254, 456 N.E.2d 35 (1983).
With respect to Respondent's e-mail to Mr. Leyhane, the subject of the allegations in Count I of the Administrator's Complaint, the Hearing Board concluded that the Administrator failed to prove that Respondent acted with dishonest intent when she sent the communication to Leyhane and accordingly did not engage in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). As noted by the Hearing Board, Respondent acted in the heat of the moment when she was under time pressures and stress due to the campaign.
The Administrator argued before this Board that the Hearing Board's finding as to Respondent's intent was against the manifest weight of the evidence, relying on the evidence that Respondent had three days to prepare the response to the CCL evaluation of her and arguing that Respondent had to know her statements were inaccurate given her experience as a prosecutor. However, the Hearing Board, in determining Respondent's intent, considered this evidence. The
Administrator has not pointed to any evidence that was not carefully considered by the Hearing Board. In short, the Hearing Board accepted Respondent's testimony that she believed her statements to the blog were true. I defer to the Hearing Board's assessment of Respondent's credibility and can find no basis to disturb the Hearing Board's conclusion as against the manifest weight of the evidence.
The majority has concluded that although Respondent did not intend to deceive anyone, her false statements violated Rule 8.4(a)(4) given the Court's analysis in In re Thomas, 2012 IL 113035. First, the majority finds that Respondent's act in drafting and sending the e-mail to Leyhane was a deliberate act. Secondly, because the effect of the e-mail was deceitful, the majority argues that under the Court's analysis in Thomas, Respondent violated Rule 8.4(a)(4).
I do not believe that the Court's decision in Thomas requires the two-tiered analysis as suggested by the Administrator. Moreover, this case is unlike the situation presented in In re Thomas. Thomas continued to practice law after he was suspended, even after he was informed that he was no longer authorized to practice law. The Administrator charged Thomas with the unauthorized practice of law and dishonest and fraudulent conduct in violation of Rule 8.4(a)(4). The Court concluded that Thomas's unauthorized practice violated Rule 8.4(a)(4) because he intentionally engaged in the acts that constituted the unauthorized practice and the effect of his conduct was to perpetuate a fraud upon the court. Thomas argued that he believed the suspension order had been stayed when he filed a petition for rehearing and therefore he lacked the intent to violate the rules. The Court found that Thomas's belief even if sincere, was entirely unreasonable in light of the express order of the Court. In re Thomas, 2012 IL at 21-22.
Inherent in the Hearing Board's decision in this matter is the conclusion that Respondent's belief - that her statements were true - was reasonable. The Hearing Board's finding in that regard is not against the manifest weight of the evidence. This is not a situation like Thomas in which the Administrator can point to countervailing evidence like an explicit court order undermining the reasonableness of Respondent's belief. Accordingly, I decline to reverse the Hearing Board's conclusion that relative to the charged Rule 8.4(a)(4) and Rule 8.2(b) violation.
Likewise, I see no basis for overturning the Hearing Board's findings as to Counts II, III and IV. As noted by the Hearing Board, Respondent provided reasonable explanations for her actions and statements in each of the three cases. None of the remarks in question resulted in any intervention by the trial judges, who were in the best position to evaluate Respondent's demeanor and the purpose of her trial tactics.
The only misconduct found by the Hearing Board was a single violation of Rule 7.1 arising out of Respondent's statement on a blog made in 2008. There was no proof presented that Respondent's statement caused harm to anyone. Respondent has acknowledged that she made a mistake and has vowed to carefully conduct herself pursuant to the Rules of Professional Conduct in the future. Respondent presents no arguable future threat to the profession. I recommend that Respondent be reprimanded.
Daniel P. Duffy
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a
true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on March 8, 2013.
Kenneth G. Jablonski, Clerk of the
4 Panel Member Daniel P. Duffy participated in the deliberation and decision in this case prior to the expiration of his term as a member of the Review Board.