The opinion of the court was delivered by: Milton I. Shadur, United States District Judge.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
AWARDING INJUNCTIVE RELIEF
These Findings are drawn from evidence presented at a three day
evidentiary hearing ("Hearing," held on June 7, June 12 and June 25,
2002) on FDLA's motion for a temporary restraining order ("TRO") and from
the affidavits submitted in conjunction with the Hearing. Although all
parties have been offered the opportunity to supplement the TRO hearing
record, all have agreed that the record may be considered as the ultimate
record in the case and that it suffices to enable this Court to determine
whether and to what extent FDLA should be awarded permanent injunctive
relief on its Complaint (see, e.g., City and Police Defendants Proposed
Finding ¶ 21; State's Attorney Proposed Findings and Conclusions at
3; FDLA's Proposed Findings at 1).
These Findings include both matters directly testified to during the
Hearing and inferences drawn from that testimony in accordance with the
well-established rule that the trial court may draw reasonable inferences
from the evidence in making its findings. See, e.g., McDermott v. John
Baumgarth Co., 286 F.2d 864, 868 (7th Cir, 1961) ("It is a function of
a trial judge to draw reasonable inferences from the facts appearing
before him"); BASF Corp. v. Old World Trading Co., 41 F.3d 1081, 1097-98
(7th Cir. 1994).
1. FDLA is a non-profit legal aid agency formed in 1994 for the purpose
of providing free legal counsel to indigent persons at Chicago police
stations during questioning by the police and other law enforcement
officials. Tr. 52-53.
2. City is a municipal corporation, organized under the laws of the
State of Illinois, that operates the Chicago Police Department
3. Police Defendants comprise Department's Superintendent Terry Hillard
and four of Department's Area Commanders: Area One's Frank Trigg, Area
Two's Walter Green, Area Four's Richard Kobel and Area Five's Gerald
4. Richard A. Devine is the State's Attorney of Cook County.
5. FDLA was organized to afford counsel to indigent persons in police
stations who need advice concerning their legal rights but would not
otherwise have counsel. Under the Illinois Public Defender statute,
counsel are provided to indigent defendants at the time of their initial
court appearances, not before. Thus, in the words of FDLA's Executive
Director Darron Bowden, FDLA fills a "critical gap" by working to "make
real" the opportunity of indigent individuals to consult with counsel at
police stations before they are charged. Otherwise such persons, even if
they were to request counsel, would not in practice have a lawyer
available to them. Tr. 52-53.
7. When FDLA attorneys appear at Chicago police Area Headquarters to
speak with a person there, it is because they have been specifically
requested by a friend or family member to assist that person. Those
requests suffice to create an attorney-client relationship between the
FDLA attorney and the person being held. In each instance the FDLA
attorney informs police personnel at the station that he or she has been
retained to represent that specific person and requests the opportunity
to speak with the individual. See Tr. 60-61, 80-81.
8. Since its inception in 1994, FDLA has responded to well over 10,000
calls received through the hotline. Tr. 53. FDLA focuses its outreach and
its services on low-income communities in which a relatively high
proportion of the population has had or is having some involvement with
the criminal justice system. Tr. 56. FDLA provides its services through a
staff of three paid lawyers and a group of approximately 50 volunteer
attorneys whom FDLA recruits, trains and supervises as they provide that
10. In addition to its direct representation, FDLA engages in
issues-related advocacy on topics that it learns of in the course of its
direct representation and that it deems significant. FDLA also engages in
public education and public outreach as to the rights of persons to
consult with counsel when they are held at police stations. Tr. 53-54.
11. FDLA's successful performance of its organizational mission depends
upon its being perceived in the community as a capable and diligent
defender of the constitutional and statutory rights of its client
population. When FDLA asserts such rights on behalf of its clients and the
police refuse to honor those assertions, FDLA's credibility is diminished
in the eyes of its clients. Tr. 57-58.
12. There was no credible evidence at the Hearing that FDLA engages in
direct representation of clients in anything other than a lawful and
ethical manner or that FDLA seeks to advance any goal other than
protecting the best interests of the client-witnesses themselves.
13. On a number of occasions Chicago police have refused FDLA attorneys
permission to meet and speak at Chicago police stations with witnesses
whom FDLA has been asked to represent:
(a) On two occasions earlier this year, FDLA Executive
Director Bowden was denied access to witnesses. On
one of those occasions (at Area Two police
headquarters) the witness was held for over five
hours, and when he emerged from the police station
his belt was in his hands and he was missing his
car keys, which the police said they had
misplaced. Tr. 64-68.
(b) On May 22 and 23, 2002 FDLA attorney Sladjana
Vuckovic ("Vuckovic") and
FDLA volunteer attorney Leonard Goodman
("Goodman") were refused permission to speak with
two clients, Andre Winston ("Winston") and Dijuan
Davis ("Davis"), who were held at the Area Four
police headquarters for questioning for over 24
hours. Tr. 81-90.
(c) On June 4, 2002 attorney Vuckovic was refused
permission to speak with a client-witness
named Karen Terrell. Tr. 90-95.
(d) In June 2002 FDLA attorneys were barred from
access to a number of witnesses who were being
held by the police for questioning in connection
with the investigation of the murder of Chicago
Police Officer Brian Strouse. Tr. 295-302.
(e) Attorney Vuckovic estimated in her testimony that
she personally has been refused access to
witnesses at Chicago police stations on 25
occasions since she became FDLA's Legal Director
in January 2001. Tr. 112-13.
(f) FDLA attorney Dawn Sheikh ("Sheikh") estimated
that her experience included 7 to 10 occasions on
which she had been refused permission to speak
with witnesses being held at Chicago police
stations. Tr. 269-70.
14. Because of the volume and ongoing nature of FDLA's work and in
light of the positions taken by defendants and their counsel during the
Hearing and throughout this litigation, it is more than reasonable to
infer — and this Court expressly finds — that FDLA will
continue to face large numbers of future denials of access to witnesses
whom it has been asked to represent unless this Court enjoins defendants
from doing so.
15. Defendants acknowledge that the denials of access described in
Finding 13 have taken place pursuant to a policy and standard practice
under which the Chicago police refuse to permit contact between witnesses
being held at the police station and attorneys who come there seeking to
counsel them (see, e.g., City and Police Defendants Proposed Findings
¶¶ 51-53). During the Hearing Chicago Police Chief of Detectives
Philip Cline and Chicago Police Lt. John Farrell described that policy
and standard practice in these terms:
(a) Witnesses who are taken to police stations for
questioning are thoroughly searched and are then
"secured" by being locked into small, windowless
interrogation rooms, where they remain typically
for many hours, and in some cases for days. Tr.
185-88, 98, 150, 353-55; see also Winston Aff.
¶¶ 1-2; Davis Aff. ¶¶ 1-2.
(b) One reason for isolating witnesses and questioning
them in locked interrogation rooms in the police
station is to "overcome [their] reluctance" to
cooperate with the police. Tr. 184-85.
(c) Chicago police do not permit attorneys to have
access to such witnesses when attorneys appear at
the police station and advise the police that they
have been asked to represent the witnesses. Tr.
(d) Witnesses are not informed of an attorney's
presence when the attorney comes to the
station seeking to represent the witness.
(e) Witnesses are permitted to communicate with
attorneys only if they spontaneously ask to do
so. Tr. 194.
(f) When a spontaneous request is made by a witness,
the police attempt to discourage the contact,
telling the witness either that he does not need a
lawyer or that it is better if fewer people know
he is at the station, or both. Tr. 194, 235-36.
Only if the witness nonetheless "insists" on
counsel will he be permitted to communicate with
an attorney. Tr. 236, 245-47.
Defendants' Policy in Practice
16. FDLA presented unrefuted testimony as to defendants' implementation
of the policy described in Finding 15 in individual situations:
(a) FDLA clients Winston and Davis were held
incommunicado as witnesses in small, windowless
and locked interrogation rooms from the early
evening of May 21, 2002 until the morning of the
next day. They were not offered anything to eat
until morning, and their requests to go to the
bathroom were sometimes ignored. Winston made
repeated requests to leave the station that the
police ignored. Both men felt that they were not
free to leave during the more than 24 hours that
they were held. During that time FDLA attorneys
who had been retained to represent Winston and
Davis asked to see their clients at the police
station, but they were denied access to their
clients. Police refused even do inform Winston or
Davis that their attorneys were present and
available to consult with them. Winston Aff.
¶¶ 1-6, 8, 9; Davis Aff. ¶¶ 1-6, 9;
Goodman Aff. ¶ 4; Vuckovic Aff. ¶¶ 3-5;
Tr. 84-87, 285-87.
(c) FDLA Director Bowden represented a man, held at
Area 2 for more than five hours, who emerged from
the police station with his belt in his hand and
without his car keys, which the police said they
had misplaced. Police denied attorney Bowden, who
was there with his client's mother, access to his
client for more than five hours because the client
was "just a witness." Tr. 64-68.
In each of those instances the police refusal to allow the FDLA attorney
access to his or her client or to inform the client-witness that an FDLA
attorney was present at the police station to aid him was not a random
aberration, but rather the result of the deliberately adopted and
enforced policy described in Finding 15.
17. FDLA's mission is to inform persons being held by Chicago police of
the limits on police authority to hold and interrogate them and to inform
those persons of their right to the assistance of counsel. Tr, 52-54. In
appropriate circumstances FDLA attorneys would counsel a witness that he
has no obligation to cooperate with the police, if such cooperation might
run counter to the witness's own best interests. Tr. 73-75. FDLA
attorneys work actively to convey that message to persons the police have
detained and to the persons in the community (families and friends) who
then retain FDLA to represent such persons. FDLA's message as to the
rights of witnesses held at Chicago police stations is a truthful message
that accurately and honestly reflects the legal rights of the intended
18. Defendants employ their policy of preventing contact between
witnesses being held at police stations and attorneys who come there to
counsel them (see Finding 15) for the express purpose of keeping the
witnesses in ignorance of the attorney's presence in the police station
and, ultimately, of the information and advice that the lawyer may
convey. Tr. 158-59, 253-54, 259-62.
19. Defendants work to indoctrinate the witnesses they are holding to
the view that they should cooperate with the police investigation and
that any concern they might harbor for their own interest is
unwarranted. When witnesses ask to speak with a lawyer, the police
discourage the witnesses from taking that course, telling them that they
do not really need a lawyer. Tr. 194, 235-36, 245-47.
20. Lt. Farrell explained that the police are particularly motivated to
block FDLA attorneys from access to witnesses at police stations because
of the content of the message that police believe FDLA attorneys would
convey to their clients. Tr. 189-90. Lt. Farrell was unequivocal that the
content of FDLA's communication is a "[v]ery important concern." As he
confirmed, defendants' problem is with FDLA's message:
From experience, I know that the First Defense
attorney is going to tell the witness not to speak to
the police, not to ...