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FIRST DEFENSE LEGAL AID v. CITY OF CHICAGO

September 9, 2002

FIRST DEFENSE LEGAL, AID, PLAINTIFF,
V.
CITY OF CHICAGO, ET. AL. DEFENDANTS.



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

FINDINGS OF FACT

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).

Parties

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 ("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 Mahnke.

4. Richard A. Devine is the State's Attorney of Cook County.

FDLA's Work

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.

6. FDLA operates a 24 hour hotline, with a widely publicized number (1-800-LAW-REP4) that people can call when a family member or fiend has been taken to a Chicago police station. FDLA gets information about the person being held*fn1 from the caller and, where the case meets FDLA guidelines, sends a lawyer to the police station to assist that person. Tr. 52-54, 80-81. At the time of the Hearing, FDLA's policy was to respond to calls requesting assistance for juveniles and for persons being held in connection with felony offenses, as well as in cases in which the person is alleged to have been injured or a victim of police misconduct. Tr. 59.

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 representation.

9. In the course of its direct representation, FDLA represents both persons who are in custody*fn2 as suspects in criminal investigations and persons who are not in custody but are being held at the police station for questioning as witnesses to an offense.

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.

Defendants' Policy

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. 156.
(d) Witnesses are not informed of an attorney's presence when the attorney comes to the station seeking to represent the witness. Tr. 170.
(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.
(b) On another occasion, when FDLA represented a number of witnesses in connection with the murder of police officer Brian Strouse in June 2001, the attorneys sought unsuccessfully to see their clients for approximately 14 hours. During that time attorney Sheikh both heard and observed her client, while handcuffed to a chair, shout that he warned an attorney; yet she was never granted access to him. Tr. 295-301.
(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.

Defendants' Purpose

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 audience.

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 ...

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