Filed November 17, 2008

In re Kevin Carroll Kakac
Commission No. 07 SH 86

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) making a statement of material fact to a tribunal which the lawyer knows or reasonably should know is false; 2) in representing a client, failing to disclose that which the lawyer is required by law to reveal; 3) suppressing evidence that the lawyer has a legal obligation to reveal or produce; 4) 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; 5) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 6) engaging in conduct that is prejudicial to the administration of justice; and 7) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: Rules 1.2(f)(3), 3.3(a)(1), 3.3(a)(13), 3.8(c), 8.4(a)(4), and 8.4(a)(5) of the Illinois Rules of Professional Conduct; and Supreme Court Rule 770.

RECOMMENDATION: Suspension from the practice of law for thirty (30) days.

DATE OF OPINION: November 17, 2008.

HEARING PANEL: Jack O. Asher, Edward W. Huntley, Albert O. Eck, Jr.

RESPONDENT'S COUNSEL: William F. Moran, III.

ADMINISTRATOR'S COUNSEL: Gary S. Rapaport.

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

In the Matter of:

KEVIN CARROLL KAKAC,

Attorney-Respondent,

No. 6211262.

Commission No. 07 SH 86

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on April 3, 2008, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Hearing Board Panel consisting of Jack O. Asher, Chair, Edward W. Huntley, lawyer member, and Albert O. Eck, Jr., public member. The Administrator was represented by Gary S. Rapaport. The Respondent appeared at the hearing and was represented by William F. Moran, III.

PLEADINGS

On August 28, 2007, the Administrator filed a Complaint against the Respondent alleging the following facts and misconduct:

In February 2004, Curtis Sutton and Brian Asher were arrested after police found and seized methamphetamine in a residence in Wayne County, Illinois. Asher was initially arrested for possession of methamphetamine and obstruction of justice. The Respondent, the State's Attorney of Wayne County, presented the cases of Sutton and Asher to a Grand Jury. In February 2004, both were indicted for the offenses of unlawful possession with the intent to deliver a controlled substance, a Class 2 felony, and unlawful possession of a controlled

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substance, a Class 4 felony. The cases were docketed as People v Sutton, No. 04 CF 53, and People v. Asher, No. 04 CF 50.

On June 3, 2004, Asher pleaded guilty to the lesser offense of unlawful possession of a controlled substance pursuant to a plea agreement. The terms of the agreement were that Asher would receive a maximum imprisonment sentence of 3 years and the Class 2 felony charge would be dismissed. In exchange, Asher agreed to cooperate with prosecutors and police and, if he did not do so, the court would not be bound by the 3-year maximum sentence. The Respondent knew or should have known the terms of the plea agreement with Asher.

On December 20, 2004, a jury trial was commenced in Sutton's case, and the Respondent disclosed to Sutton's attorney, Chris Elliott, that Asher would be a witness for the State. However, the Respondent did not disclose that Asher had entered into a cooperative plea agreement.

On December 21, 2004, the court, in Sutton's case, conducted a hearing to determine the admissibility of Asher's prior felony conviction as impeachment. The Respondent had provided Sutton's counsel with a list of Asher's prior convictions by case number, but did not identify the offenses. Included in the disclosure was Wayne County case No. 99 CF 88. During the hearing, the Respondent stated that Asher's conviction in case No. 99-CF 88 was a "6-year sentence on chemical breakdown," which referred to the offense of unlawful chemical breakdown of an illicit substance, a Class 4 felony. However, the Respondent knew or should have known that in case No. 99 CF 88, Asher pleaded guilty to the offense of unlawful manufacture of methamphetamine, a Class 1 felony, and was sentenced to six years imprisonment. The court ruled that the 1999 conviction could not be used to impeach Asher.

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Asher testified on behalf of the State at Sutton's jury trial. During cross-examination, Sutton's counsel brought out that, in June 2004, Asher had pleaded guilty to offense of possession of a controlled substance. When asked what he had been originally charged with, Asher responded "obstruction, I believe." Sutton's counsel then ask "have you been offered anything in exchange for testimony here today," and Asher replied "no." The Respondent knew or should have known the foregoing answer was false, and the Respondent did not disclose to the court or opposing counsel that it was false.

During closing argument to the jury, the Respondent said "I told you [Asher] was promised nothing. He was offered nothing." The Respondent knew or should have known that his foregoing statement was false.

Sutton was found guilty of unlawful possession with the intent to deliver a controlled substance on December 21, 2004, and a sentencing hearing was scheduled for March 24, 2005. On March 24, 2005, Sutton was sentenced to four years imprisonment.

On January 14, 2005, a sentencing hearing was conducted in Asher's case. At that hearing, the Respondent discussed Asher's cooperation in the Sutton trial and stated "it's for that supporting information that we request that you enter this sentence, which you might see initially without that supporting information, as a departure from what is necessary."

On February 21, 2007, the Appellate Court, Fifth Judicial District, reversed and remanded Sutton's case for a new trial. The Appellate Court concluded that the Respondent had denied Sutton due process of law by failing to correctly identify Asher's prior conviction, by failing to correct Asher's testimony that he was initially charged with obstruction of justice and received nothing in return for his testimony, and by emphasizing in closing argument the lack of a plea agreement in regard to Asher.

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Based upon the above, the Administrator alleged that the Respondent committed the following misconduct: (a) made 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; (b) in representing a client, failed to disclose that which the lawyer is required by law to reveal, in violation of Rule 1.2(f)(3); (c) suppressed evidence that the lawyer has a legal obligation to reveal or produce, in violation of Rule 3.3(a)(13); (d) in criminal litigation, failed 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); (e)engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); (f) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (g) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

The Respondent filed his Answer on September 28, 2007. He admitted many of the factual allegations in the Complaint, denied some, and denied all of the allegations of misconduct in both Counts.

THE EVIDENCE

The Administrator presented the testimony of the Respondent as an adverse witness, and the Administrator's Exhibits 1 through 10 were received into evidence. (Tr. 5) The Respondent testified on his own behalf, and presented the testimony of seven other witnesses. The Respondent's Exhibits 1 through 13 were received into evidence. (Tr. 5)

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Alan Downen

Alan Downen testified that he became licensed to practice law in 1974. He served as State's Attorney of Hamilton County from 1976 to 1988. Since then, he has been in private practice. (Tr. 60-61)

Mr. Downen said he has known the Respondent for about 20 years and that the Respondent has an excellent reputation in the community for honesty and integrity. (Tr. 62-63)

Barry Vaughan

Judge Vaughan testified that he is the resident Circuit Judge in Hamilton County, Second Judicial Circuit. He has known the Respondent since about 1992. Judge Vaughan said the Respondent has an excellent reputation for honesty and integrity. (Tr. 65-68)

Patrick Hahn

Mr. Hahn testified that he is currently the State's Attorney of Lawrence County, having been elected in November 2004. He was formerly a full-time Assistant State's Attorney in Wayne County, where the Respondent was the State's Attorney. (Tr. 71-73)

In 2004, Mr. Hahn prosecuted a methamphetamine case against Brian Asher. Asher entered a guilty plea, pursuant to a plea agreement on June 3, 2004. As part of the plea agreement, Asher was required to cooperate with law enforcement officials. Mr. Hahn said that this was a common form of agreement. Asher was not required to merely cooperate in one case, such as Curtis Sutton's case, but to cooperate as needed by law enforcement officials. Mr. Hahn further stated that it was common for a state's attorney to rely on an individual who had such a plea agreement to do more than just testify in one case. (Tr. 73-81)

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Mr. Hahn identified the cover of Asher's file (Adm. Ex. 4). The writing on the cover mentioned Asher's guilty plea. The Respondent's handwriting on the file cover stated that Asher must cooperate with investigations. (Tr. 77-78)

Finally, Mr. Hahn acknowledged that Asher was released from jail on the same day he entered his guilty plea. (Tr. 85)

David Williams

Mr. Williams testified that he has been an attorney since 1974. From 1984 to the present, he has had a private practice in Wayne County. For the past six years he has also been the Public Defender in Wayne County, which is not a full-time position.

He said that the Respondent has a good reputation for honesty and integrity in the community. (Tr. 86-89)

Mr. Williams described the discovery practice in Wayne County. He said that the judge enters a general order at the arraignment. Thereafter, the State's Attorney provides the discovery materials without the need for written discovery motions to be filed.

When a State witness has a prior criminal record, the Respondent provides the case numbers of the prior cases. If a State witness had a plea agreement, the "deal" is "usually provided in discovery." Williams said he is familiar with most criminal defendants, and their cases, in Wayne County. However, when he is not aware of the specifics of a State witness' case, he investigates the matter by looking at the file in the circuit clerk's office. (Tr. 90-94)

Mr. Williams represented Brian Asher in a methamphetamine case. (Adm. Ex. 1-5; Resp. Ex. 1-3) On March 15, 2004, the Respondent sent Williams a guilty plea offer for Asher. (Resp. Ex. 3) On June 3, 2004, Asher entered his guilty plea. Pursuant to the plea agreement the "State agreed to a three-year cap, and Asher was required to cooperate with any and all law

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enforcement officials." Cooperation by Asher meant that he would "buy some drugs" or "wear a wire" if the police wanted him to do so, and "to testify" if asked by the State's Attorney. Asher's agreement was not limited to cooperating only in the case of his co-defendant Curtis Sutton. (Tr. 94-99, 102)

When asked if Asher could have "lost that three-year cap" if he cooperated in the Sutton case, but "refused to cooperate in another situation," Mr. Williams said no. He explained that "I've never had [Respondent] go back against a cap even though they might do something later on to make the cops mad at them." (Tr. 99-100)

Mr. Williams was aware that the Respondent was going to use Asher as a witness in the case against Sutton. Sutton's attorney, Mr. Elliott, did not contact Williams in regard to Asher's plea agreement. (Tr. 100-01)

Larry Bunting

Mr. Bunting testified that he is 68 years of age, is retired, and resides in Fairfield, Illinois. He was a probation officer in Wayne County from 1984 to 2004. He knew the Respondent before the Respondent was elected State's Attorney. Mr. Bunting said "I feel he's a very honest and reputable person." (Tr. 137-40)

Brian Shinkle

Mr. Shinkle testified that he has been the State's Attorney of Edwards County since 1992. He is in the Marine Corps reserve. In 2004, he was mobilized for a year, and spent six months in Iraq. While he was away, several individuals helped out to handle the State's Attorney work in Edwards County. He said the Respondent was the "overall coordinator of that and took the greatest burden." (Tr. 144-48)

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Mr. Shinkle said that the Respondent is also in the military reserves, and has been mobilized or deployed while he was State's Attorney of Wayne County. (Tr. 147-48)

Finally, Mr. Shinkle testified that the Respondent has a reputation for having "absolute impeccable integrity," and that the existence of the current disciplinary charges has not changed his reputation. (Tr. 149-50)

Christopher Elliott

Mr. Elliott testified that he has been an attorney since 1996. He opened a solo practice in 1997, and was a part- time public defender in Clay County until July 2006. On July 2006, he became the full-time public defender in Clay County. Mr. Elliott has practiced in Wayne County for several years, and he explained the discovery process in Wayne County criminal cases. (Tr. 103-04)

He said the judge enters a standard discovery order, and that the Respondent's office turns over the discovery materials without the need for written discovery motions.

If the Respondent is late in providing discovery, Elliott contacts his office rather than file a motion. He said the Respondent is "pretty consistent in providing discovery." (Tr. 105, 107)

In May 2004, Elliott was appointed to represent Curtis Sutton in People v. Sutton, Wayne County, No. 04 CF 53. Prior to Elliott's appearance, the Respondent had filed the State's Compliance with Discovery, listing Brian Asher as a State witness and stating that Asher had prior convictions which may be used for impeachment. (Resp. Ex. 4) Elliott said that he knew who Asher was, and "assumed that whatever relevant information as to his history, I would be given [by the Respondent]." Elliott acknowledged that he could have looked at court records in the circuit clerk's office to learn about Asher's prior criminal record, but he did not do so. On December 16, 2004, the Respondent filed a Supplemental Answer to Discovery disclosing

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Asher's prior criminal cases by county and case number. (Resp. Ex. 5) Elliott did not attempt to look at the court files in the foregoing cases or ask the Respondent for additional information about them. (Tr. 104-05, 108-11, 115-17, 120, 124-25)

At some point prior to Sutton's trial, which commenced on December 20, 2004, Elliott became aware that the Respondent intended to call Asher as a State's witness, and became aware that Asher had entered a guilty plea in June 2004. Elliott said he did not recall discussing the terms of Elliott's plea agreement with the Respondent. Also, Elliott did not look at Asher's court file to find out the terms of the plea agreement. (Adm. Ex. 2, p. 2)

At a hearing on the second day of trial (Adm. Ex. 7), the Respondent told the judge that Asher's 1999 conviction (Resp. Ex. 5) was for "chemical breakdown."

Elliott said that the foregoing was a misstatement because Asher's conviction was actually for the Class 1 felony of unlawful manufacture of methamphetamines. The judge would not allow Elliott to use the prior conviction to impeach Asher. When asked if he believed the judge would have allowed him to use the prior conviction, if it has been correctly described, Elliott said that generally a Class 1 felony such as unlawful manufacture would be admissible to impeach a witness. Elliott also stated that he did not think the Respondent intentionally misstated the name of Asher's previous offense. (Tr. 122-23, 125-26, 133, 135-36)

Asher was called as a State witness at Sutton's trial. During cross examination, Asher was asked what he was "originally charged with," and he responded "Obstruction, I believe." (Adm. Ex. 7, p. 73) Elliott noted that when Asher was initially arrested, he was charged with obstruction of justice, along with other charges. (Resp. Ex. 2) Elliott then explained that he did not think Asher was "trying to be misleading," but "probably believed that's what he was arrested for initially." (Tr. 127-28)

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Also during cross-examination at Sutton's trial, Asher was asked whether he was offered anything in exchange for his testimony at Sutton's trial. Asher responded "no." (Adm. Ex. 7, p. 73) Elliott said that he believed Asher was "lying." Elliott explained that, based upon his experience, co-defendants do not testify against another co-defendant "unless they're getting something for it." Also, Asher had entered his guilty plea in June and had not yet been sentenced at the time of Sutton's trial in December. The normal practice in Wayne County is for the sentencing to occur within 30 to 60 days. Elliott said that if he had known the specifics of Asher's plea agreement, he would have "acted differently" and "would have asked him about it." (Tr. 120-21, 127-29, 131-32)

Finally, Mr. Elliott testified that, during closing argument at Sutton's trial, the Respondent told the jury Asher was promised or offered nothing. (Adm. Ex. 8, p. 50) Elliott said "I do believe the State was aware that [Asher] was receiving something." (Tr. 134-35)

The Respondent

The Respondent testified that he is 42 years of age, and resides in Fairfield, Wayne County, Illinois with his wife and three minor children. He became licensed to practice law in 1992. He practiced with an older attorney for about four years. He was elected to the office of Wayne County State's Attorney in 1996, and was twice re-elected. He is currently running for re-election in 2008. (Tr. 152-54, 158-60)

The Respondent has been in the United States Army Reserve since 1994. He serves as counsel for the Judge Advocate, and currently has the rank of Major. In 2003, he was deployed to Germany for about seven months. He has received awards for his military service. (Tr. 160, 168-71; Resp. Ex. 9-12)

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The Respondent discussed his professional and community activities, and submitted a resume (Resp. Ex. 9). He said he has been involved in activities with his children, such as baseball and swimming. He occasionally speaks at schools and at meetings of various civic organizations. He is a deacon at his church, and serves on the ethics board of Fairfield Memorial Hospital. He is a member, and served as president, of the Wayne County Bar Association. He is also a member of the Illinois State Bar Association and the Prosecutor's Bar Association. He has also served on the Illinois Supreme Court's Committee on Character and Fitness for the Fifth Judicial District. He has not been previously disciplined. (Tr. 154, 158, 171-73, 228; Resp. Ex. 9)

The Respondent also mentioned that, during his military deployment overseas, state's attorneys in nearby counties handled the caseload in Wayne County. Similarly, he has helped handle cases in Edwards and Jefferson Counties when the state's attorneys in those counties were deployed. (Tr. 166-67)

The Respondent said that he has one part-time assistant state's attorney in Wayne County. He also has two full-time secretaries and one part-time secretary. In the fall of 2004, his part-time assistant was running for the office of State's Attorney in Lawrence County, and, thus, the Respondent was personally handling most of the caseload in Wayne County. He also noted that about 266 criminal cases were filed in 2004, and that there were 150 to 170 filings in 2005 and 2006. (Tr. 164-68)

The Respondent described the facts of the criminal cases of Brian Asher and Curtis Sutton. On February 17, 2004, Brian Asher, Curtis Sutton and Judy Ewing were arrested after police executed a search warrant and found methamphetamine at the residence in which they were present. The police reports showed that Asher was initially arrested for the offenses of

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possession of controlled substances with intent to deliver, possession of drug paraphernalia, and obstructing justice. (Resp. Ex. 1 and 2)

The Respondent obtained an indictment against Asher on February 20, 2004, for the charges of unlawful possession of a controlled substance with intent to deliver and unlawful possession of a controlled substance. (Adm. Ex. 1 and 2; Resp. Ex. 3)

The Respondent said that he did not seek an indictment against Asher for the charge of obstruction of justice. Because of a prior conviction, Asher was eligible for an enhanced sentence of 6 years in prison. (Tr. 31-32, 176-78)

The Respondent and Asher's attorney, David Williams, discussed a possible guilty plea by Asher. On June 3, 2004, pursuant to a plea agreement, Asher entered a plea of guilty to the charge of possession of a controlled substance (methamphetamine), a Class 4 felony, with a possible sentence of from one to six years imprisonment. The terms of the plea agreement were that the Class 1 felony charge against Asher would be dismissed and the State's Attorney would recommend to the court a maximum sentence or cap of three years' imprisonment if Asher cooperated with the Respondent and other law enforcement officials. (Adm. Ex. 3, p. 3, 5-10) The Respondent explained that "cooperation" by Asher included Asher testifying at the trial of Sutton if the Respondent requested such testimony. The Respondent further explained that the agreement was that the Respondent would make a sentence recommendation, rather than an agreement as to what sentence the judge could impose. Thus, it was "almost a qualified open plea as opposed to a negotiated plea with a finite cap on it." (Tr. 32-35, 52, 186, 229-30)

Curtis Sutton was represented by attorney Christopher Elliott in Sutton's criminal case. (Adm. Ex. 6) Sutton's case proceeded to a jury trial on December 20, 2004, Sutton was convicted of unlawful possession with intent to deliver a controlled substance, and he was

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sentenced to four years in prison. Prior to Sutton's trial, the Respondent disclosed to Elliott that Brian Asher would be a State witness. (Resp. Ex. 4 and 5) However, the Respondent admitted that he did not inform Elliott of the terms of Asher's plea agreement. (Answer, para. 13) The Respondent explained that he believed Elliott knew the details of Asher's guilty plea. He also noted that the terms of Asher's guilty plea were a matter of public record (Adm. Ex. 2, p. 2), and that Elliott did not ask the Respondent about the plea agreement. (Tr. 44-45, 192-93, 197-98, 200-02, 222)

Also prior to Sutton's trial, the Respondent disclosed to attorney Elliott that Asher had prior criminal convictions, "which may be used for impeachment." (Resp Ex. 4, p. 4) He also disclosed the counties and case numbers of Asher's prior convictions. (Resp. Ex. 5) One of the cases disclosed was a 1999 case from Wayne County, No. 99 CF 88. In the foregoing case, Asher entered a plea of guilty to the offense of unlawful manufacture of a controlled substance, a Class 1 felony, and was sentenced to an imprisonment term of 6 years. (Adm. Ex. 1) Asher had also been charged with the Class 4 felony of unlawful breakdown of a controlled substance, but that charge was dismissed. (Tr. 173-74, 197-98)

In discussing the discovery practice for criminal cases in Wayne County, the Respondent said it is very similar to that described by David Williams. Normally, the defense asks for a standard discovery order, but that the Respondent provides discovery even in the absence of a defense motion. He said "we don't now and never have tried to withhold discovery because we carefully watch to see whether or not a defense counsel has filed a motion, a written motion. In many respects, we now have and always have had in that small community of lawyers an open-file policy." The Respondent acknowledged that under Illinois Supreme Court Rule 412(c)

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Resp. Ex. 13) he has:

an affirmative obligation to produce things which fall under the category of exculpatory evidence, which also to me means things which tend to negate the guilt of in this case Mr. Sutton . . . I do know that it extends to the information for impeachment purposes as well. And I think we, that's something that we have to give and we, I believe in that.

(Tr. 193-96, 226)

On December 21, 2004, a hearing in Sutton's case was held regarding the use of prior convictions to impeach witnesses. (Adm. Ex. 7) At the hearing, the Respondent informed the judge that Asher's 1999 conviction was for "chemical breakdown." Thereafter, the judge ruled that the defense could not use the 1999 conviction to impeach Asher. (Adm. Ex. 7, p. 17)

The Respondent admitted that he falsely represented to the judge the nature of Asher's 1999 conviction. (Answer, para. 14 and 15) The Respondent said that he simply made a mistake and did not intend to deceive. He explained that, during the above hearing, he looked at Asher's Presentence Report; observed the paragraph pertaining to the 1999 conviction; and repeated the hearing of that paragraph, which stated "unlawful chemical breakdown of an illicit controlled substance, Class 4 felony." (Adm.. Ex. 5, p. 7) The Respondent further stated that he did not correct his misstatement during Sutton's trial because he was not aware of it until the trial was concluded. (Tr. 48-50, 203-06, 211-15)

While testifying at Sutton's trial, Asher said he entered a plea of guilty, on June 3, 2004, to the offense of possession of a controlled substance. He was then asked by defense counsel if he was "originally charged with anything else," and Asher replied yes, "Obstruction, I believe." (Adm. Ex. 7, p. 73) The Respondent said he did not correct the foregoing testimony of Asher because he did not believe it to be false. He explained that the charge of obstruction of justice was mentioned in the reports pertaining to Asher's arrest (Resp. Ex. 1 and 2), and that he thought Asher "was arrested on obstruction." (Tr. 178-79, 182-83)

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Asher was also asked on cross-examination, at Sutton's trial, whether he had "been offered anything in exchange for testimony here today" and he responded "no." (Adm. Ex. 7, p. 73) The Respondent did not correct the foregoing answer and said, at the time, he did not think it was false. The Respondent explained that:

the question as I interpreted it at least at that time was in essence, are you receiving anything quid pro quo, if you will, for being here today that you can take to the bank, if you will, for testifying . . . [That is] what you know you're going to get . . . [and] on one of these guilty-cap-no-more-than sentences that you, we don't know what you're going to get . . . and that's the way I took it. I took it quite literally, and . . . there was just no deliberative decision in my mind as to whether or not that was a false answer. I did not take it as false.

The Respondent further explained that:

I was thinking that that was a direct answer in relation to the question of are you expecting, are you getting anything for being here today. And you can take to the bank or whatever phrase you want to use that do you know what you're getting for what you're doing for the State here today. And I always had the impression myself that he had not idea what he was getting.

(Tr. 45-47, 216-17)

The Respondent acknowledged that, in retrospect, or "hindsight," Asher's denial of receiving anything in exchange for his testimony "certainly appears" to be false and "it's clear that I should have seen this as a narrow answer, something that could be seen as an omitive answer." (Tr. 45-46, 47-48, 219)

During his rebuttal closing argument at Sutton's trial, the Respondent stated "I told you he [Asher] was promised nothing. He was offered nothing." (Adm. Ex. 8, p. 50) The Respondent explained that when defense counsel argued in closing that Asher was pending sentencing and was "surely getting something," the Respondent considered that argument "geared toward some specific result, and it just didn't occur to me . . . there was no specific result in my mind, I didn't know what [Asher] was going to get." The Respondent denied that he knew, at the time, any of his statements to the judge or jury were false. (Tr. 220-21, 225)

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct in the complaint by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 972 (2006). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995). While a finding of misconduct cannot be based solely upon suspicious circumstances (In re Ameden, 380 Ill. 545, 552, 44 N.E.2d 558, 562 (1942)), it can be based upon circumstantial evidence. In re Holz, 125 Ill. 2d 546, 557, 533 N.E.2d 818, 822 (1989).

In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1991). In assessing the evidence the Hearing Panel is not required to be "naïve or impractical" or to believe testimony that is "beyond human experience," "an unreasonable story," or "an inherent improbability." In re Discipio, 163 Ill. 2d 515, 523-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 821 (1989); Tepper v. Campo, 398 Ill. 496, 504-05, 76 N.E.2d 490, 494 (1948).

The charges of misconduct in this matter arise out of the actions of the Respondent, in his position as State's Attorney of Wayne County, during the criminal case of People v. Curtis Sutton, Wayne County, No. 04 CF 53. Most of the pertinent facts are not in dispute.

On February 18, 2004, police arrested Sutton, Brian Asher, and Judy Ewing at Ewing's residence in Wayne County. The police reports indicated that all three were arrested for

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unlawful possession of a controlled substance (methamphetamine), and that Asher was also arrested for "obstructing justice." (Resp. Ex. 1 and 2) Indictments filed on February 20, 2004, charged Sutton and Asher with two offenses: the Class 2 felony of unlawful possession with intent to deliver a controlled substance; and the Class 4 felony of unlawful possession of a controlled substance. (Adm. Ex. 10, p.1, 10) Thereafter, attorney David Williams represented Asher, and attorney Christopher Elliott represented Sutton.

On June 3, 2004, Asher entered a plea of guilty to the Class 4 felony of unlawful possession of a controlled substance, pursuant to an agreement with the State's Attorney. (Adm. Ex. 2, p. 2; Adm. Ex. 3 and 4) The plea agreement was that the Class 2 felony charge would be dismissed; Asher's sentence would not exceed, or would be capped at, three years' imprisonment; and sentencing would be continued "during which time [Asher] agrees to cooperate with law enforcement in its on-going criminal investigations." (Complaint, para. 9; Adm. Ex. 3, p. 3-4, 11) Upon inquiry by the judge, Asher's attorney explained that if the State believed at the time of sentencing Asher "has not, in their opinion, fully cooperated in the investigations of criminal activity in Wayne and other counties," and "if the Court were to agree with the State's position," this "would just be an open plea without any kind of cap." (Adm. Ex. 3, p. 6-8) The judge then stated to Asher:

[I]f you do fully cooperate with all law enforcement agencies in their law enforcement efforts between now and sentencing, that there would be a cap of three years imprisonment in the Illinois Department of Corrections.

***

And you also understand that if you enter into this plea, the Court accepts your plea and continues this matter for sentencing hearing, if at sentencing hearing the Court makes a finding of fact that you have not fully cooperated with law enforcement agencies with the law enforcement efforts between now and the sentencing, that the Court could impose any available sentence, including an extended range term of imprisonment.

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(Adm. Ex. 3, p. 9-18) The judge accepted Asher's guilty plea. The judge also granted the joint motion of the assistant state's attorney and defense counsel to release Asher on his own recognizance. (Adm. Ex. 3, p. 17-19)

In Sutton's criminal case, a document entitled "Compliance with Discovery," signed by the Respondent, was filed on April 16, 2004. (Resp. Ex. 4) This document stated that it was being filed "in compliance with the Discovery Order previously entered herein and in compliance with Supreme Court Rules." The document disclosed that Brian Asher would be a State witness, and that Asher had "prior criminal convictions which may be used for impeachment." The document further stated that the State did not possess any "material or information which tends to negate the guilt of the accused." (Resp. Ex. 4, p. 1, 4) It is noted that the foregoing discovery document was filed prior to the date of Asher's guilty plea.

On December 16, 2004, the Respondent signed and filed a "Second Supplemental Answer to Discovery." (Resp. Ex. 5) This document set forth the dates and case numbers of Asher's prior convictions, including a 1999 conviction, No. 99-CF-88, in Wayne County. (Resp. Ex. 5, p. 1) The document did not identify the nature of the offenses for which Asher had been convicted. (Adm.Ex. 7, p. 16-17; Tr. 108-09, 197-98) Also, this document did not mention any material or information that tends to negate the guilt of Sutton.

Sutton's criminal trial commenced on December 20, 2004. The Respondent did not disclose to Sutton's counsel prior to or during the trial that Asher had entered a guilty plea pursuant to a plea agreement or the terms of any agreement. (Complaint, para. 13; Answer para. 13; Tr. 44-45, 114, 124, 132, 192, 198, 200-02)

On December 21, 2004, the judge at Sutton's trial held a hearing regarding the use of prior convictions to impeach witnesses. (Adm. Ex. 7, p. 3; Tr. 122) During this hearing,

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Sutton's attorney, Mr. Elliott, argued that Asher's 1999 felony conviction should be allowed to be used to impeach Asher. (Adm. Ex. 7, p. 9-10, 1213) Elliott stated that he had not been informed of what Asher's prior convictions "are for," and he asked what the 1999 conviction, No. 99-CF-88, was for. The Respondent replied "Chemical breakdown." (Adm. Ex. 7, p. 16-18) The judge refused to permit Elliott to impeach Asher with the prior convictions. (Adm. Ex. 7, p. 19) The offense of unlawful chemical breakdown of a controlled substance is a Class 4 felony. However, Asher was not convicted of the foregoing offense in Case No. 99-CF-88, but rather was convicted of the Class 1 felony of unlawful manufacture of a controlled substance. (Complaint, para. 14-15; Answer, para. 14-15; Adm. Ex.. 1; Adm. Ex. 5, p. 7) The Respondent did not advise the judge or Sutton's attorney that he had incorrectly identified the name of Asher's 1999 offense. (Complaint, para. 18; Answer, para. 18)

Asher testified as a State witness at Sutton's trial. In fact, the Appellate Court pointed out in its review of Sutton's trial the "unique importance of Asher's testimony," in that "Asher was the only witness who linked the defendant to the methamphetamine." (Adm. Ex. 10, p. 17) During cross-examination, Asher acknowledged he had entered a guilty plea to the offense of possession of a controlled substance on June 3, 2004, and was "awaiting sentencing." Asher was then asked the following questions and gave the following answers:

Q. You pled guilty to possession, correct?

A.  Yes

Q. Were you originally charged with anything else?

A. Yes.

Q. What were you originally charged with?

[Respondent]: Your Honor, I object to that as relevance.

THE COURT: Objection is overruled.

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THE WITNESS: Obstruction I believe.

Q. Have you been offered anything in exchange for testimony here today?

A. No.

(Adm. Ex. 7, p. 73)

The Respondent did not advise the judge or Sutton's attorney that the above testimony by Asher, regarding his original charges or his plea agreement with the State, was false or misleading. (Complaint, para. 22; Answer, para. 22)

During his rebuttal closing argument the Respondent stated to the jury "I told you he [Asher] was promised nothing" and Asher "was offered nothing." (Adm. Ex. 8, p. 50)

On December 21, 2004, Sutton was found guilty of unlawful possession with the intent to deliver a controlled substance. (Adm. Ex. 6, p. 4) On March 24, 2005, Sutton was sentenced to a 6-year term of imprisonment. (Adm. Ex. 6, p. 4) Sutton filed an appeal, and on February 21, 2007, the Appellate Court, Fifth District, reversed and remanded for a new trial. (Adm. Ex. 10) The Appellate Court ruled:

By incorrectly identifying Asher's previous conviction, by failing to correct Asher's testimony that he had been charged with obstructing justice and that he had not been offered anything in exchange for his testimony against the defendant, and by emphasizing Asher's testimony that he had received no benefit for his testimony, the prosecutor [the Respondent] denied the defendant due process of law.

(Adm. Ex. 10, p. 17)

Asher was sentenced on January 14, 2005 to a term of 30 months probation. (Adm. Ex. 2, p. 3) At Asher's sentencing hearing, the Respondent stated the following:

We'd like to suggest a - an agreed sentencing judge" . . . Mr. Brian Asher agreed back in—when—around the time that he was released on his own recognizance, to assist law enforcement…And, in fact we can state that as recently as December there was a prosecution of a codefendant in this case which resulted in a guilty verdict largely in part to the assistance of Mr. Asher in that case. So, we also need to recognize and acknowledge that he has been of significant assistance to

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law enforcement in this endeavor. And it's because---and it's for those reasons that we request you enter this sentence [30 months of probation.]

(Adm. Ex. 9, p. 2-3)

The Administrator's charges of misconduct against the Respondent are based upon the facts set out above and the reasonable inferences arising from them.

First, the Administrator alleged that the Respondent violated Rules 3.3(a)(1) and 8.4(a)(4) by misstating to the judge at Sutton's trial the nature of Asher's 1999 conviction. (Tr. 236-37, 248-49) As set above, the Respondent disclosed to Sutton's counsel prior to trial that Asher was going to testify for the State and that Asher had prior convictions. The Respondent disclosed the date, county and case number of the prior convictions, without disclosing the nature of the offenses of which Asher had been convicted. The Administrator did not contend that the Respondent committed misconduct by failing to disclose the nature of the offenses. (Tr. 248) We agree. However, the Administrator did allege that the Respondent committed misconduct by incorrectly identifying the nature of Asher's 1999 conviction to the trial judge.

At a hearing on December 21, 2004, to determine whether prior convictions could be used to impeach witnesses, the Respondent was asked what offense Asher had been convicted of in 1999. The Respondent replied that Asher's 1999 conviction was for "chemical breakdown." (Adm. Ex. 7, p. 17-18) The judge ruled that Asher's 1999 conviction could not be used to impeach him. The offense of unlawful chemical breakdown of a controlled substance is a Class 4 felony, with an imprisonment sentence of from 1 to 3 years. (Adm. Ex. 10, p. 15; 720 ILCS 570/401.5; 730 ILCS 5/5-8-1(a)(2)(6)) The Respondent's representation was clearly incorrect. Asher had been convicted of the Class 1 felony of unlawful manufacture of a controlled substance in 1999. (Adm. Ex. 1; Adm. Ex. 10, p. 15) The Respondent admitted he erroneously informed the judge that Asher's 1999 conviction was for chemical breakdown, but he contended

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it was a mistake and that he did not intentionally mislead the judge or defense counsel. (Tr. 50, 212, 217)

While the Respondent's misidentification of Asher's 1999 conviction constituted error at Sutton's criminal trial (Adm. Ex. 10, p. 15-17), we do not believe it was an ethical violation. The Respondent explained that, when he was asked about Asher's 1999 conviction, he looked at Asher's Presentence Report (Adm. Ex. 5), and read the heading of the paragraph pertaining to the 1999 conviction. That heading stated, in capital letters, "unlawful chemical breakdown of an illicit controlled substance, Class 4 felony." (Adm. Ex. 5, p. 7) We find the Respondent's explanation reasonable and conclude that his misstatement was likely a mistake rather than an intentional deception.

We agree with the Respondent that there would have been no apparent advantage for him to misstate the nature of Asher's conviction. (Tr. 212-13) The Administrator pointed out (Tr. 249) that the Appellate Court, in reviewing Sutton's conviction, stated that the "State concedes that it would have been error for the circuit court to prevent the defendant from impeaching Asher with his 1999 conviction for unlawful manufacture of a controlled substance." (Adm. Ex. 10, p. 15) While we agree that the conviction for unlawful manufacture would seem to be admissible to impeach Asher, it also seems that a conviction for chemical breakdown would likewise be admissible. The well-established rule is that evidence of a witness' prior conviction is admissible to attack the witness' credibility when: (1) the prior crime was punishable by imprisonment in excess of one year, that is a felony, or involved dishonesty or false statement; (2) less than 10 years has elapsed since the date of conviction or the witness' release from confinement, whichever is later; and (3) the probative value of admitting the prior conviction outweighs the danger of unfair prejudice. See People v. Montgomery, 47 Ill.2d 510, 516-17, 268

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N.E.2d 695, 698-99 (1971); People v. Atkinson, 186 Ill.2d 450, 455-56, 713 N.E.2d 532, 534 (1999). Asher's conviction in 1999 for either unlawful manufacture or unlawful chemical breakdown would satisfy the first two requirements of the rule. That is, both are felonies punishable for more than one year, and both convictions would have been within 10 years of Asher's testimony in 2004. It also appears that the probative value of the convictions is similar, and the danger of unfair prejudice was virtually nonexistent. Asher was a witness, but not a defendant, at Sutton's trial. Courts have questioned whether there is unfair prejudice when a witness, other than a defendant, is impeached with a prior conviction. For example, in People v. Walker, 157 Ill.App.3d 133, 138, 510 N.E.2d 29, 32 (1987), the Appellate Court, quoting from a previous decision, stated "it is difficult to conceive of a case in which the danger of unfair prejudice to the prosecution or its witnesses would substantially outweigh the probative value of evidence that such witnesses [other than the defendant] had been convicted of felonies or crimes involving dishonesty." See also People v. Paul, 304 Ill.App.3d 404, 410, 710 N.E.2d 499, 503 (1999).

Therefore, the evidence does not clearly and convincingly establish that the Respondent's misidentification of the nature of Asher's 1999 conviction violated either Rule 3.3(a)(1) or Rule 8.4(a)(4).

Second, the Administrator charged that the Respondent violated Rules 1.2(f)(3), 3.3(a)(13), and 3.8(c) by failing to disclose to Sutton's attorney that Asher, a State witness, had entered a plea of guilty pursuant to a plea agreement with the Respondent's office. (Tr. 237, 240-41) The evidence, as well as the Respondent's judicial admission in his Answer (par. 13), clearly established that the Respondent did not disclose to Sutton's attorney, Mr. Elliott, that Asher had

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entered an agreed guilty plea on June 3, 2004, or any of the terms of the agreement. (Resp. Ex. 5; Tr. 44-45, 114, 132, 135, 192)

The Supreme Court's discovery rule, Rule 412(c), requires a prosecutor to disclose to defense counsel "any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged." Similarly, Rule 3.8(c) of the Illinois Rules of Professional Conduct requires a prosecutor to make timely disclosure to defense counsel "of the existence of evidence known to the prosecutor . . . that tends to negate the guilt of the accused." Neither Rule 412(c) nor Rule 3.8(c) conditions the required disclosure upon the filing of a written request by defense counsel. We note that other subsections of the discovery rule do condition disclosure "upon written motion of defense counsel." (See Rule 412(a) and 412(g)).

Thus, pursuant to Rule 412(c), a prosecutor has an affirmative duty to disclose to defense counsel any material or information that tends to negate the guilt of the accused, which includes information "that may cast doubt on the credibility of a State witness." Clearly, a State witness' deal or expectation of benefit arising from a guilty plea agreement with the prosecution is information that may cast doubt on the credibility of the State witness and tends to negate the guilt of the defendant. See People v. Sharrod, 271 Ill.App.3d 684, 688-89, 648 N.E.2d 1141, 1143-44 (1995); People v. Torres, 305 Ill.App.3d 679, 686-87, 712 N.E.2d 835, 840 (1999); People v. Vasquez, 313 Ill.App.3d 82, 97-98, 728 N.E.2d 1213, 1225-26 (2000); People v. Ellis, 315 Ill.App.3d 1108, 1114-16, 735 N.E.2d 736, 742-43 (2000). The Respondent revealed that he had a clear understanding of his disclosure duty in this regard. He noted that he has routinely disclosed exculpatory information regardless of whether a motion is filed by defense counsel.

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(Tr. 196, 226) Other attorneys described the same discovery practice in Wayne County. (Tr. 90-94, 106-08) The Respondent also testified that:

we have an affirmative obligation to produce things which fall within the category of exculpatory evidence . . . [and] I do know that it extends to the information for impeachment purposes as well.

(Tr. 194)

Consequently, the Respondent was required to disclose to Sutton's attorney the terms of the plea agreement his office had with Asher, and the Respondent was well aware of his duty to do so. By failing to disclose the terms of Asher's plea agreement, the Respondent breached his affirmative duty, and violated Rules 1.2(f)(3) and 3.8(c). However, we do not believe that the Respondent's failure to disclose the terms of the plea agreement constituted "suppressing evidence" in violation of Rule 3.3(a)(13).

Third, the Administrator charged that the Respondent violated Rules 1.2(f)(3), 3.3(a)(13), and 8.4(a)(4) by failing to correct Asher's testimony as to the offense with which Asher was "originally" charged. (Tr. 236-37, 247-48) As set out above, on cross-examination, Asher acknowledged that he had pled guilty to the offense of unlawful possession of a controlled substance. He was then asked what he was "originally charged with," and Asher replied "Obstruction, I believe." (Adm. Ex. 7, p. 73) There were no further questions on this point, and the Respondent did not attempt to correct or otherwise explain Asher's answer.

In reversing Sutton's conviction, the Appellate Court stated "[b]y testifying that he had been charged with ‘obstruction,' Asher failed to reveal that he had been charged with an offense [unlawful possession with the intent to deliver a controlled substance] greater than that to which he pled guilty." The Appellate Court then concluded that "by failing to correct Asher's testimony that he had been charged with obstructing justice . . . [the Respondent] denied the

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defendant due process of law." People v. Sutton, No. 5-05-0305, Rule 23 Order, February 21, 2007 (Adm. Ex. 10, p. 16-17).

Although the Respondent's failure to correct or explain Asher's testimony about having been charged with obstruction of justice constituted error in Sutton's criminal proceeding, we do not believe it was ethical misconduct. The Respondent explained that, at the time, he did not think that Asher's testimony was false because the police reports showed that Asher was, in fact, arrested for obstruction of justice. (Tr. 179, 182-83) Thus, because it "did not strike [Respondent] as a false answer," the Respondent simply did not think any correction or clarification was required. (Tr. 183) We found the Respondent's explanation reasonable. We also note that Administrator's counsel indicated "Asher may not have been lying about that because in a sense, in a layman's manner of speaking and in most lawyers' manners of speaking, being arrested on a police report that lists obstruction constitutes being charged with obstruction." (Tr. 247)

While the Respondent should have acted differently after Asher suggested that he was only charged with the additional offense of obstruction of justice, we do not believe the Respondent intended to misrepresent or deceive. Thus, the evidence does not clearly and convincingly establish that the Respondent violated Rule 3.3(a)(1), Rule 3.3(a)(13), or Rule 8.4(a)(4) in that regard.

The fourth charge of misconduct also arises out of the Respondent's failure to correct false testimony by Asher at Sutton's trial. Asher was asked on cross-examination if he had "been offered anything in exchange for testimony here today," and he replied "no." (Adm. Ex. 7, p. 73) Thereafter, the Respondent did not inform the judge or defense counsel that Asher's response was false. The Administrator charged that the Respondent's failure to correct the

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foregoing false testimony was a violation of Rules 1.2(f)(3), 3.3(a)(13), and 8.4(a)(4). (Tr. 236-37, 246-47)

It is obvious that Asher did receive some offer and benefit in return for his testimony at Sutton's trial, and that Asher's claim of not having been offered "anything" in exchange for his testimony was false. The Respondent asserted that, at the time, he did not believe Asher's testimony to be false. (Tr. 45-46) The Respondent's explanation for his belief (Tr. 45-48, 216-17), which is set out above in the Evidence Section, is not persuasive. It should have been apparent to any prosecutor, and especially to an experienced prosecutor, in the circumstances presented that Asher's claim of not having been offered anything for his testimony was false.

Asher entered his plea of guilty on June 3, 2004. (Adm. Ex. 3) His guilty plea was to the offense of unlawful possession of a controlled substance, a Class 4 felony. (Adm. Ex. 3, p. 9, 17) Because of his prior convictions, Asher could have received an imprisonment sentence of 6 years (Adm. Ex. 3, p. 11). As part of the plea agreement, Asher agreed to fully cooperate with law enforcement officials (Adm. Ex. 3, p. 3, 6, 7, 9). Although it is obvious, the Respondent acknowledged that Asher's cooperation "meant that he would testify if [the Respondent] asked him to in the case against Mr. Sutton." (Tr. 34) In return for Asher's full cooperation until his sentencing hearing, Asher's imprisonment sentence would not exceed three years. (Adm. Ex. 3, p, 3, 9, 11) Additionally, in return for Asher's guilty plea and agreement to cooperate with law enforcement officials, the more serious charge against Asher, the Class 2 offense of unlawful possession with intent to deliver a controlled substance, was dismissed (Tr. 33; Adm. Ex. 10, p. 16), and Asher was released on his own recognizance when the judge granted the "joint motion" of the prosecutor and defense counsel for such release. (Adm. Ex. 3, p. 3, 18-19)

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At Asher's sentencing hearing, which was after he testified at Sutton's trial, the Respondent agreed with defense counsel's statement that "this plea is in part as a result of [Asher's] cooperation and continued cooperation with law enforcement." (Adm. Ex. 9, p. 2) The Respondent recommended a sentence of "30 months of probation" for Asher, and stated the following:

Mr. Brian Asher agreed back in - when - around the time that he was released on his own recognizance, to assist law enforcement in that - in that process surrounding the events when he was arrested. And, in fact, we can state that as recently as December there was a prosecution of a codefendant in this case which resulted in a guilty verdict largely in part to the assistance of Mr. Asher in that case. So, we also need to recognize and acknowledge that he has been of significant assistance to law enforcement in this endeavor. And it's because - and it's for those reasons that we request that you enter this sentence …

It is well-established that a prosecutor has an affirmative duty to correct false testimony of a State's witness. This duty applies "even where the witness' false testimony goes only to that witness' credibility." People v. Olinger, 176 Ill.2d 326, 345, 680 N.E.2d 321, 331 (1997); People v. Jimerson, 166 Ill.2d 211, 223-24, 652 N.E.2d 278, 284 (1995). In People v. Torres, 305 Ill.2d 679, 685, 712 N.E.2d 835, 839 (1999), the Appellate Court stated the "[e]vidence of any understanding or agreement between a witness and the prosecution as to any future prosecution is relevant to the witness' credibility and the jury is entitled to know about it." See also People v. Diaz, 297 Ill.App.3d 362, 372-73, 696 N.E.2d 819, 827 (1998).

In the Jimerson case, a state witness, Gray, testified that she was not promised leniency for her testimony. Gray had been convicted of murder, rape, and perjury, and was sentenced to 50 years' imprisonment. Her convictions were reversed, because her attorney had a conflict of interest, and while she was awaiting retrial she testified against Jimerson. Thereafter, Gray pled guilty to perjury, received probation, and the other charges were dismissed. In rejecting the State's claim that Gray's denial of any promise of leniency was not false, the Supreme Court

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stated that it was "not required to suspend common sense in evaluating the evidence in the record" and that a "commonsense view of this evidence lends substantial support to the conclusion that Gray's denials of a deal were false." People v. Jimerson, 166 Ill.2d at 227, 652 N.E.2d at 286.

In People v. McKinney, 31 Ill.2d 246, 201 N.E.2d 431 (1964), an accomplice (Davis) testified for the State at McKinney's second trial. Davis had not testified at McKinney's first trial, which ended in a hung jury. Davis had pled guilty and received a sentence of 2 to 8 years for his participation in the robbery. Davis denied that he had been offered leniency in exchange for his testimony against McKinney. In closing argument, the prosecutor emphasized that the "witnesses for the State [did not have] anything to gain by coming here." After McKinney's conviction, the State filed a motion to reduce Davis' sentence, and the sentence was reduced to 1 to 3 years. The State argued that an offer of leniency had been made to Davis prior to McKinney's first trial, but that Davis had not testified at the first trial. Prior to McKinney's second trial, a prosecutor asked Davis if he would testify, but that "no promises could be made." The trial judge accepted the State's argument that Davis had not testified falsely because "no offer or promise of leniency had been made immediately prior to the second trial." The Supreme Court reversed stating:

We do not believe the constitutional safeguard of due process of law can be made to hinge upon the gossamer distinctions indulged in by the trial court. Any fair appraisal of the record shows that Davis' denials . . . were untrue.

McKinney, 31 Ill.2d at 248-50, 201 N.E.2d at 432-33.

We conclude that any fair appraisal of the evidence in this case, consistent with common sense, clearly and convincingly establishes that Asher was offered something in return for his testimony at Sutton's trial; that Asher's testimony that he was not offered anything in exchange for his testimony was false; and that the Respondent knew or should have known Asher's

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testimony was false. By not correcting Asher's false testimony, the Respondent violated Rule 1.2(f)(3). However, we do not believe that the Respondent's failure to correct Asher's false testimony constituted "suppressing evidence" in violation of Rule 3.3(a)(13).

Furthermore, in order to establish dishonesty, fraud, or deceit under Rule 8.4(a)(4), the evidence must clearly and convincingly prove that the attorney acted knowingly or, at least, with reckless disregard. Mere negligence or mistake is not sufficient. See In re Jakubowski, 93 CH 455, Review Board Report at 17 (Review Board Report approved in M.R. 12728, September 24, 1996); In re Karraker, 05 SH 41, Hearing Board Report at 18-19 (Hearing Board Report approved in M.R. 21231, January 12, 2007) (and cases cited therein). Additionally, intent and motive are rarely proved by direct testimony, "but rather must be inferred from conduct and surrounding circumstances" In re D'Angelo, 126 Ill. 2d 45, 56-57, 533 N.E.2d 861, 866 (1988), and a finding of misconduct can be based upon circumstantial evidence. In re Holz, 125 Ill. 2d 546, 555, 557, 533 N.E.2d 818, 821, 822 (1988).

After considering the testimony, the overall demeanor of the Respondent, and the circumstances shown by the evidence, we are not convinced there is clear and convincing proof that the Respondent acted with the intent to deceive by failing to correct Asher's false answer during cross-examination. (Adm. Ex. 7, p. 73) Although the Respondent should have recognized Asher's answer, that he had not been offered anything for his testimony, was false, we think it possible that the Respondent, in the heat of the moment, could have misconstrued the question asked of Asher, as the Respondent contended. (Tr. 45-48, 216-17) Thus, the charge that the Respondent violated Rule 8.4(a)(4) was not proved.

The fifth charge of misconduct was that the Respondent violated Rules 3.3(a)(1) and 8.4(a)(4) by making false statements during his closing argument at Sutton's trial. (Tr. 236-37)

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During closing argument, the Respondent stated "I told you [Asher] was promised nothing" and "[Asher] was offered nothing." (Adm. Ex. 8, p. 50) The foregoing statements were false and the Respondent knew they were false when he made them in rebuttal closing argument.

By the time the Respondent presented his rebuttal closing argument at Sutton's trial, he had ample time to reflect and to recognize that Asher had been offered and been given some benefit for testifying on behalf of the State, and that the jury had been given an inaccurate picture of Asher's motive for testifying. Nevertheless, the Respondent, during his rebuttal argument, stated "I told you he [Asher] was promised nothing. He was offered nothing." (Adm. Ex. 8, p. 50) Clearly, the foregoing statements were false. We find it incredible that the Respondent or any experienced prosecutor in the same circumstances would not have known that this argument to the jury was false, in that Asher had been offered and had been already given something, a reduction of charge and release on recognizance, in return for his cooperation with the Respondent and other law enforcement officials. (Adm. Ex. 3) Thus, we find that the Respondent violated Rules 3.3(a)(1) and 8.4(a)(4) by making statements in closing argument that he knew were false and deceitful.

Finally, the Administrator charged that the Respondent engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), and that tends to defeat the administration of justice or bring the court or the legal profession into disrepute, in violation of Supreme Court Rule 770. (Tr. 249-50)

An attorney's misconduct is prejudicial to the administration of justice and tends to defeat the administration of justice or bring the court or the legal profession into disrepute when it has an adverse impact on a judicial proceeding. See In re Verett, 07 SH 105, Hearing Board Report at 36-37 (Hearing Board Report approved in M.R. 22567, September 17, 2008); In re

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Murphy and Campbell, Nos. 06 SH 74 and 75, Petition to Impose Discipline on Consent at 3-4 (Petition allowed in M.R. 21566, May 18, 2007). In this case, the Respondent's misconduct occurred during a criminal trial and, as a result of his actions, a criminal conviction was reversed and remanded for additional proceedings in the Circuit Court. (Adm. Ex. 10) Thus, the evidence established that the Respondent violated Rule 8.4(a)(5) and Supreme Court Rule 770

Based upon the above, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in paragraph 30, subsections (a), (b), (d), (e), (f), and (g) of the Complaint: 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); 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); engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

We also find the Administrator did not prove that the Respondent committed the misconduct charged in paragraph 30(c) of the Complaint: suppressing evidence that the lawyer has a legal obligation to reveal or produce, in violation of Rule 3.3(a)(13).

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RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish the attorney for the misconduct, but to protect the public, to maintain the integrity of the profession, and to 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, we are to consider the nature of the misconduct as well as the aggravating and mitigating factors. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1199-1200 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); In re Gorecki, 208 Ill. 2d at 361, 802 N.E2d at 1200.

Although the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct," each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).

In this case, the Administrator requested a sanction of suspension from the practice of law for one year. (Tr. 250, 261) The Respondent urged that the sanction, if any, should be a censure. (Tr. 283-84)

We first consider that the Respondent engaged in serious misconduct. In his position as State's Attorney of Wayne County, the Respondent committed three instances of misconduct during the criminal prosecution of Curtis Sutton (People v. Sutton, Wayne County, No. 04 CF 53). First he failed to disclose exculpatory information to the defense during pre-trial discovery. Specifically, Brian Asher, a crucial State witness at the trial of Curtis Sutton, had entered a guilty

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plea about six months before Sutton's trial. The Respondent failed to disclose that Asher's guilty plea was pursuant to a plea agreement, and failed to disclose the terms of that plea agreement. Additionally, when Asher falsely testified at Sutton's trial that he had not been offered anything in exchange for his testimony, the Respondent failed to correct Asher's false testimony or inform the court or defense counsel of the terms of Asher's plea agreement. Further, during his closing argument, the Respondent falsely stated to the jury that Asher "was promised nothing" and was "offered nothing."

The Supreme Court has repeatedly expressed concern about prosecutorial misconduct. For example, in People v. Johnson, 208 Ill. 2d 53, 803 N.E.2d 405 (2004), the Court stated:

prosecutorial misconduct . . . undermines the very foundations of our criminal justice system . . . [and] we are seeing such behavior with an ‘alarming' frequency, which ‘causes legitimate public concerns regarding the fairness and integrity' of criminal trials . . . Misconduct on the part of prosecutors cannot be allowed to continue unchecked. To call it ‘error' is to mischaracterize it, as it represents nothing less than an attempt to subvert a defendant's fundamental right to a fair trial. Multiple instances of this kind of conduct in the course of a criminal trial threaten the trustworthiness and reputation of the judicial process.

Johnson, 208 Ill. 2d at 87-88, 803 N.E.2d at 425 (citations omitted).

Similarly, in People v. Wheeler, 226 Ill. 2d 92, 871 N.E.2d 728 (2007), the Court stated:

This court has expressed concern with the problem of prosecutorial misconduct several times in recent years . . . We have pointed out that a criminal defendant, regardless of guilt or innocence, is entitled to a fair, orderly, and impartial trial. . . . Further, we have noted an intolerance of pervasive prosecutorial misconduct that deliberately undermines the process by which we determine a defendant's guilt or innocence. . . . Additionally, we have noted that threats of reversal, and words of condemnation and disapproval, have been less than effective in curbing prosecutorial misconduct. . . . With this case, we reaffirm our intolerance of prosecutorial misconduct.

Wheeler, 226 Ill. 2d at 121-22, 871 N.E.2d at 744 (citations omitted).

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Based upon the strong language of the Supreme Court, the prosecutorial misconduct of the Respondent is very serious, and causes legitimate public concerns regarding the fairness and integrity of criminal trials. This type of ethical misconduct cannot be tolerated.

The Respondent's misconduct deprived Curtis Sutton of a fair trial and necessitated a second trial or other additional proceedings. The Appellate Court, in reversing and remanding Sutton's conviction stated "Asher was the only witness who linked the defendant [Sutton] to the methamphetamine. Because of the unique importance of Asher's testimony at the defendant's trial, we find that this error cannot be considered harmless beyond a reasonable doubt." People v. Sutton, No. 5-05-0305, Rule 23 Order, February 21, 2007; (Adm. Ex. 10, p. 17) As pointed out above, the Supreme Court has made it clear that "a criminal defendant, regardless of guilt or innocence, is entitled to a fair, orderly, and impartial trial." (emphasis added)

There is, however, considerable mitigation in this case. The Respondent has practiced law since 1992 and has no prior discipline. A judge, another state's attorney, two other attorneys, and a retired probation officer testified about the Respondent's favorable reputation for honesty and integrity. The Respondent has an outstanding record of military service. (Resp. Ex. 9-12) He has also been involved in community, church, and Bar activities. (Tr. 171-73; Resp. Ex. 9, p. 2-3)

We further consider in mitigation that the Respondent did not engage in a pattern of misconduct. Rather, his misconduct occurred in one criminal case during the course of his twelve years as the State's Attorney of Wayne County. Additionally, two attorneys who practice criminal defense work in Wayne County testified that they have had no previous problems with the discovery disclosures by the Respondent. (Tr. 90-94, 106-10) While the lack of prior misconduct and his good reputation do not excuse the Respondent's misconduct at Sutton's trial,

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his overall background does tend to show that his misconduct was a departure from his otherwise distinguished career and normal practice. Compare In re Rothenberg, 108 Ill. 2d 313, 324, 484 N.E.2d 289, 293-94 (1985) (misconduct was not "an aberration or sudden departure" but a "further manifestation of a pattern of misconduct.")

Finally, the Respondent cooperated during his disciplinary proceedings, admitted most of the factual allegations of the Complaint, and acknowledged that, in retrospect, his conduct should have been different. (Tr. 45-48, 219)

In determining the appropriate sanction in this matter, we found the following cases instructive. We recognize, as mentioned above, that each disciplinary case is unique and must be decided on its own facts and circumstances.

In In re Hall, 95 Ill. 2d 371, 447 N.E.2d 805 (1983), cited by the Administrator (Tr. 251), the attorney was retained to handle a criminal appeal, he failed to file a brief, the appeal was dismissed about a year later, and he did not inform his client of the dismissal. He also made a false statement to the ARDC, "did not file an appearance or a response to the complaint," the "Administrator's motion to have the factual allegations of the complaint deemed admitted was granted," and the attorney did not appear at his hearing. He then appealed from the Hearing Board decision and appeared in the matter. The attorney was suspended for three months. Hall 95 Ill. 2d at 373-76, 447 at 805-07. We find the overall circumstances in Hall, to be more egregious than in this case, particularly in regard to Hall's conduct during his disciplinary proceedings.

In the Iowa case of Committee on Professional Ethics v. Ramey, 512 N.W.2d 569 (1994), also cited by the Administrator (Tr. 259), an "experienced prosecutor" failed to disclose a statement of a witness that was exculpatory to the defendant, and made a false statement to the

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court in regard to the chain of custody for certain evidence. Ramey had been previously suspended for six months "for income tax violation and false certification." Ramey was "suspended indefinitely, with no possibility for reinstatement for three months from the date of this opinion." Ramey, 512 N.W.2d at 569-70, 572. Unlike in Ramey, the Respondent in the matter before us has no previous discipline.

In In re Murphy and Campbell, Nos. 06 SH 74 and 75, M.R. 21566 (May 18, 2007), cited by the Respondent (Tr. 274), the two respondents were Assistant United State's Attorneys. They failed to disclose to the defense that one of the government witnesses, an informant named Logston, had made inconsistent statements. Logston had purchased crack cocaine from the defendant (Childs) and had made two statements claiming that he had not kept any of the crack cocaine he purchased. However, three days before Childs' trial, Murphy and Campbell learned Logston had admitted to a police officer that he had kept some of the crack cocaine he had purchased. They did not disclose Logston's latter statement to the defense. During his cross-examination, Logston testified that he kept some of the crack cocaine he had purchased, contrary to his previous statements, and that he had informed Murphy and Campbell of this fact. Murphy and Campbell engaged in misconduct by failing to disclose the impeachment information. However, their misconduct was found to be harmless error in light of the overall evidence against Childs. See United States v. Childs, 447 F.3d 541, 55-47 (7th Cir. 2006) In mitigation at their disciplinary proceeding, the Petition to Impose Discipline on Consent noted that they had no prior misconduct, judges and other attorneys would testify as to their good reputations for honesty and integrity; they were cooperative; and they acknowledged their misconduct and expressed remorse. (p. 4) A censure was imposed on each of them. See also In re Garza, 86 CH 21, M.R. 4206 (May 3, 1987) (an assistant state's attorney made improper remarks about a

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defense psychiatrist at a death penalty sentencing hearing in People v. Lyles, 106 Ill. 2d 373, 398-414, 478 N.E.2d 291, 300-09 (1985), and he was censured).

Although we do not diminish the seriousness of the misconduct by Murphy, Campbell, or Garza, the majority of the Hearing Panel believes the misconduct in the matter before us is more egregious. In this case, the Respondent not only failed to disclose information favorable to the defendant in pre-trial discovery, but he also failed to correct false testimony during trial, and then he made false statements in closing argument. The Respondent's misconduct pertained to the credibility of a crucial witness (Adm. Ex. 10, p. 17) and, thus, deprived the defendant of a fair trial. The Respondent made it appear to the jury that Brian Asher had no self serving motive to testify on behalf of the State when, in fact, Asher had entered into an agreement with and had received a benefit from the State. Asher was permitted to pled guilty to a Class 4 felony, and a Class 1 felony charge against him was dismissed; Asher's sentencing hearing was continued until after Sutton's trial and Asher was to receive a maximum sentence of no greater than three years if he cooperated with law enforcement officials, which included the Respondent; and Asher was released on his own recognizance following his guilty plea and agreement to cooperate. In fact, at Asher's sentencing hearing, the Respondent recommended a sentence of "30 months of probation," and pointed out that Asher had cooperated by testifying at Sutton's trial. (Adm. Ex. 9, p. 2-3) The jury was entitled to know about "any understanding or agreement" the Respondent had with Asher See People v. Jimerson, 166 Ill. 2d at 223-27, 652 N.E.2d at 284-086, but the Respondent's conduct kept this important information from the jury and improperly enhanced the credibility of Asher.

Furthermore, the majority of the Hearing Panel notes that not only is the Respondent an experienced prosecutor, but is the chief law-enforcement officer of Wayne County See In re

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Armentrout, 99 Ill. 2d 242, 255, 457 1262, 1268 (1983), and his misconduct pertained to a crucial witness at a criminal trial. Thus, the misconduct in this case is more egregious than the misconduct of Murphy, Campbell, and Garza.

After having considered the nature of the Respondent's misconduct, the substantial mitigation, and the purpose of the disciplinary system, the majority of the Hearing Panel believes that a short suspension is the appropriate sanction in this case. A short suspension is adequate for the public to have confidence that prosecutorial misconduct will not tolerated, and to deter the Respondent and others from engaging in this type of misconduct. The majority of the Hearing Panel further believes that any sanction less than a suspension would "denigrate the seriousness of [the Respondent's] conduct and would erode public trust in the accountability of its elected officials." In re Sims, 144 Ill. 2d 323, 325, 579 N.E.2d 865, 866 (1991).

Therefore, the majority of the Hearing Panel recommends that the Respondent, Kevin Carroll Kakac, be suspended from the practice of law for a period of thirty (30) days.

Date Entered: November 17, 2008

Jack O. Asher, Chair, with Panel Member Albert O. Eck, Jr., concurring.

PARTIAL CONCURRENCE AND DISSENT

I agree with the majority in regard to the findings of misconduct and much of what is said in the Recommendation Section.

However, I do not believe that the misconduct committed by the Respondent was more egregious than the misconduct committed by the respondents in the cases of In re Murphy and Campbell, Nos 06 SH 74 and 75, M.R. 21566 (May 18, 2007), and In re Garza, 86 CH 21, M.R.

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4206 (May 3, 1987), in which the sanction of censure was imposed. Therefore, my recommendation is that the Respondent be censured.

Edward W. Huntley, Panel Member.