BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

BRENDA KAY QUADE,

Attorney-Respondent,

No. 6278800.

Commission No. 2014PR00076

FILED --- July 3, 2014

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Sharon D. Opryszek, pursuant to Supreme Court Rule 753(b), complains of Respondent, Brenda Kay Quade, who was licensed to practice law in Illinois on November 22, 2002, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

(Prosecutor's failure to disclose information and misrepresentation of
information affecting the credibility of a key witness
)

1. At all times alleged in the Complaint, Respondent was employed as an Assistant State's Attorney with the Winnebago County State's Attorney's Office located in Rockford, Illinois.

2. On January 11, 2009, Juan J. Ceballos, Jamie R. Stephens and Corey D. Hayes, while armed with a firearm, entered the residence of Ira Tedjakusama, located at 451 Bancroft Court, #5, Rockford, Illinois, and threatened Mr. Tedjakusama and others who were present at the residence.

3. On January 29, 2009, Rockford police officer Mark Jimenez filed a one count criminal complaint against Corey D. Hayes, hereinafter "Hayes," charging home invasion, a class X felony, punishable by 6-30 years imprisonment, in violation of 720 ILCS 5/12-11(a)(3), on the basis of the events described in paragraph 2, above. The complaint was filed in the Circuit Court of the 17th Judicial Circuit in Winnebago County and docketed as People of the State of Illinois v. Corey D. Hayes, case number 09-004443.

4. On or about February 11, 2009, Juan J. Ceballos, Jamie R. Stephens and Corey D. Hayes were indicted by the Winnebago County Grand Jury for the offense of home invasion, on the basis of the events described in paragraph 2, above. The matters were filed with the court and docketed as People of the State of Illinois v. Juan J. Ceballos, number 09 CF 104 and People of the State of Illinois v. Jamie R. Stephens, number 09 CF 290. The previously filed complaint against Corey D. Hayes, case number 09-004443, was superceeded by indictment as People of the State of Illinois v. Corey D. Hayes, number 09 CF 291. Respondent was assigned to prosecute the matters.

5. On March 31, 2009, Rockford police officers arrested Hayes for the charge of home invasion in the matter of People of the State of Illinois v. Corey D. Hayes, number 09 CF 291. Hayes was remanded to the Winnebago County jail.

6. On or about April 2, 2009, the Winnebago County Public Defender's office was appointed to represent Hayes and Assistant Public Defender Shelton Green, hereinafter "APD Green," appeared on behalf of Hayes in the case of People of the State of Illinois v. Corey D. Hayes, number 09 CF 291. The Winnebago County State's Attorney's office amended a scrivener's error on the indictments described in paragraph 4, above, to reflect the date of the home invasion as January 11, 2009.

7. On December 15, 2009, at Hayes' request, Rockford police Detectives Pruitt and Schroeder spoke to Hayes regarding the home invasion for which he was charged in 09 CF 291. Hayes admitted his involvement in the home invasion and implicated a yet uncharged co-defendant, Marco Acosta, hereinafter "Acosta." Hayes' statement was reduced to writing and identified Acosta as the individual who both planned the home invasion, as described in paragraph 2 above, and acted as a lookout.

8. On or about February 10, 2010, Marco Acosta and Heather Watson were indicted by the Winnebago County Grand Jury in a two-count indictment for the offenses of conspiracy to commit home invasion, a Class X felony, in violation of 720 ILCS 5/8-2(a) and home invasion as described in paragraph 2 above. The matters were filed with the court and docketed as People of the State of Illinois v. Marco Acosta, number 2010 CF 219 and People of the State of Illinois v. Heather Watson, number 2010 CF 220. The previous indictments against Juan J. Ceballos and Jamie R. Stephens were superceeded by the two-count indictment for the offenses of conspiracy to commit home invasion and home invasion docketed as People of the State of Illinois v. Juan J. Ceballos, number 09 CF 104 and People of the State of Illinois v. Jamie R. Stephens, number 09 CF 290. Respondent was assigned to prosecute the matters.

9. On June 8, 2010, Hayes entered into a "Cooperation Agreement," hereinafter "plea agreement," wherein he pleaded guilty to the Class X felony, home invasion, as described in paragraph 2, above. In exchange, Hayes would receive a sentence of six years imprisonment for his full cooperation with the prosecutors, including giving truthful testimony in the cases of People of the State of Illinois v. Marco Acosta, number 2010 CF 219, People of the State of Illinois v. Juan J. Ceballos, number 09 CF 104 and People of the State of Illinois v. Jamie R. Stephens, number 09 CF 290. The plea agreement further stated that if Hayes failed to fully cooperate with prosecutors, the court would not be bound by the six-year sentence and could sentence Hayes to a period of imprisonment between six and thirty years.

10. During the June 8, 2010 plea hearing, before Judge Joseph McGraw, Hayes was represented by APD Green and the State was represented by the Respondent. Judge McGraw accepted the plea and stayed sentencing until the conclusion of Acosta trial, People of the State of Illinois v. Marco Acosta, number 2010 CF 219.

11. On September 3, 2010, attorney Chris Taylor, hereinafter "Taylor," appeared on behalf of Acosta in People of the State of Illinois v. Marco Acosta, number 2010 CF 219.

12. On or about November 23, 2010, Respondent filed pretrial motions in limine including one to allow evidence of gang membership in People of the State of Illinois v. Marco Acosta, number 2010 CF 219. Judge McGraw heard and denied Respondent's motion in limine to allow evidence of gang membership.

13. On November 26, 2010, a pretrial meeting occurred at the Winnebago County Jail wherein Respondent prepared Hayes for his trial testimony in People of the State of Illinois v. Marco Acosta, number 2010 CF 219, scheduled to begin on December 13, 2010. Present at the pretrial meeting, in addition to Hayes and Respondent, were Detective Pereza and APD Green. APD Green was the only individual who took notes of the meeting.

14. At the November 26, 2010 pretrial meeting, Hayes recanted that portion of his December 15, 2009 statement to Detectives Pruitt and Schroeder which implicated Acosta, among others, in the home invasion, described in paragraph 2, above. Hayes told Respondent that he had been threatened by a rival gang member to implicate Acosta in the home invasion. Hayes provided a hand-written affidavit, dated August 29, 2010, wherein Hayes denied his, and co-defendants Acosta and Stephens', involvement in the home invasion. Hayes also provided a hand-written letter indicating he was threatened, by a gang member, to sign the August 29, 2010 affidavit.

15. Prior to the commencement of the jury trial of Acosta in People of the State of Illinois v. Marco Acosta, number 2010 CF 219, and prior to the testimony of Hayes as a prosecution witness in the trial, Respondent was required to disclose to the defense any exculpatory information and any information affecting the credibility of Hayes.

16. At no time, prior to or during the trial in People of the State of Illinois v. Marco Acosta, number 2010 CF 219, did Respondent disclose to defense attorney Taylor any of the information relating to Hayes' November 26, 2010 statements, described in paragraph 14, above, that his allegation of Acosta's role in the January 11, 2009 home invasion was untrue.

17. On November 30, 2010, both Respondent and Taylor, on behalf of Acosta, appeared before Judge Joseph McGraw in the matter of People of the State of Illinois v. Marco Acosta, number 2010 CF 219. The Court set a final pretrial date of December 8, 2010 and jury trial date to begin on December 13, 2010. Respondent did not disclose to Taylor any of the information relating to Hayes' November 26, 2010 statements, described in paragraph 14, above, that his allegation of Acosta's role in the January 11, 2009 home invasion was untrue.

18. On December 13, 2010, the jury trial of Acosta in People of the State of Illinois v. Marco Acosta, number 2010 CF 219, commenced before Judge Joseph McGraw. A jury was selected, followed by opening statements and witness testimony.

19. On or about December 13, 2010, APD Green provided both Respondent and Taylor with copies of his handwritten notes regarding statements made by Hayes during the November 26, 2010 pretrial preparatory meeting with Respondent. APD Green's notes indicated that Hayes told Respondent that he was threatened to sign the affidavit described in paragraph 14, above, and Hayes' implication of Acosta in the January 11, 2009 home invasion was untrue.

20. At no time, after receiving the notes from APD Green and prior to presenting Hayes as a prosecution witness in the Acosta trial, did Respondent disclose to Taylor any of the information in her possession relating to Hayes' November 26, 2010 contradictory statements about Acosta's alleged involvement in the January 11, 2009 home invasion.

21. On December 14, 2010, Respondent presented Hayes as a prosecution witness in People of the State of Illinois v. Marco Acosta, number 2010 CF 219. Hayes was the sole witness at trial who identified, and testified to, Acosta's involvement in the home invasion.

22. During Taylor's cross-examination of Hayes, Hayes testified that his implication of Acosta in the January 11, 2009 home invasion was untrue and that he was threatened by people, including the police, to implicate Acosta.

23. During Respondent's re-direct examination of Hayes, Respondent attempted to impeach Hayes by questioning him about his December 15, 2009 statement given to Detectives Pruitt and Schroeder. In response to Respondent's questioning, Hayes stated that he had been threatened by Acosta's rival gang members to implicate Acosta.

24. Taylor objected to Hayes' statements about gang affiliation as a violation of Judge McGraw's November 23, 2010 motion in limine ruling disallowing any testimony of gang affiliation at the trial. Taylor moved for a mistrial. Judge McGraw heard argument on Taylor's motion for a mistrial.

25. Judge McGraw questioned Respondent about the relevance of gang issues in her impeachment of Hayes. Respondent answered, "This is the first time we're hearing that something in that statement is incorrect." (Report of proceedings, pages 70-71) Respondent's reference was to the December 15, 2009 statement of Hayes given to Detectives Pruitt and Schroeder.

26. Respondent's statement to Judge McGraw that December 14, 2010 was the first time she heard something in Hayes' December 15, 2009 statement to Detectives Pruitt and Schroeder was false, material and misleading. Respondent knew that Hayes told Respondent that parts of the December 15, 2009 statement were untrue during the pretrial meeting of November 26, 2010, as described in paragraph 14, above.

27. Judge McGraw denied Taylor's motion for a mistrial. Taylor then told the Judge that on December 13, 2010, he received notes from APD Green which summarized Hayes' statements to Respondent during the pretrial meeting on November 26, 2010 including that "rival gang member told him to put this on Acosta." (Report of proceedings, page 84)

28. During a recess in the trial, APD Green again produced his November 26, 2010 notes summarizing Hayes' statements to Respondent about Acosta's involvement in the home invasion and gang threats. Respondent reviewed the notes and advised Taylor that her prior statement to Judge McGraw, as described in paragraph 25, above, was untrue.

29. At no time during the pendency of Acosta's trial did Respondent advise Judge McGraw that her prior statement, as described in paragraph 25, was false and misleading.

30. The jury trial in People of the State of Illinois v. Marco Acosta, number 2010 CF 219, concluded on December 15, 2010 with a verdict of not guilty.

31. On March 8, 2011, Respondent filed a motion to void the plea agreement with Hayes in People of the State of Illinois v. Corey Hayes, number 2009 CF 291 on the basis of Hayes' purportedly false testimony in the Acosta jury trial.

32. APD Green advised Judge McGraw that Respondent was aware of Hayes' potentially contradictory trial testimony on November 26, 2010, when Hayes told Respondent that the first paragraph of his December 15, 2009 statement to Detectives Pruitt and Schroeder was incorrect as it related to Acosta's involvement in the home invasion. In response to Judge McGraw's questioning about the November 26, 2010 meeting, Respondent admitted that Hayes made a "statement that didn't comport with his prior comments," and that she believed Hayes was attempting to "water down Mr. Acosta's accountability." (Report of Hayes Sentencing, pages 24-26)

33. Judge McGraw denied Respondent's motion to vacate Hayes' plea agreement.

34. By reason of the conduct above, Respondent has engaged in the following misconduct:

  1. making a false statement of fact or law to a tribunal or failure to correct a false statement of material fact or law previously made to the tribunal by the lawyer, by conduct including misstatements made to Court regarding Hayes' testimony, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);

  2. failure to timely disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, by conduct including failure to disclose Hayes' November 26, 2010 contradictory statements to the defense, in violation of Rule 3.8(d) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct involving dishonesty, fraud, deceit, and misrepresentation, by conduct including the misrepresentation of Hayes' testimony, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Sharon D. Opryszek
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Sharon D. Opryszek