In our trial practice classes, our students are trained on how to move the court for procedural and evidentiary rulings. Next year we should post this picture for students to learn the perfect pleading pose. It came to mind after reading the charges against a public defender Therese Cesar Garza who was accused of yelling at judges who ruled against her on motions and saying “shit” in court.
The assistant public defender for Cook County is accused of a patter of misconduct ranging from disclosing confidential information to saying “shit” in court. Judge Calabrese appointed Cesar to represent defendant Monica Boyd (“Boyd”) in The People of the State of Illinois v. Monica Boyd, 11-MC1-194192. While Boyd appeared in the morning, she failed to appear when the trial was called that afternoon. Cesar explained that Boyd had left the court to pick up her child. Calabrese was not convinced and ordered her arrest. This is what followed as detailed in Count IV in the complaint below:
MS. CESAR: Oh shit.
THE COURT: What did you say, Ms. Cesar?
MS. CESAR: Oh shoot, I said. Oh shoot. I’m sorry I didn’t talk to her, Judge. I’m just – – it’s my fault. I’m running around, talking to people.
THE COURT: I don’t think that’s what you said.
MS. CESAR: Whatever. I know the word you think I said. My mother never let me say that, and I’ll tell you why. But I said shoot, darn it.
Frankly, while worthy of the court’s stern response and even a sanction, this hardly seems worthy of an ethics complaint. She is also accused of raising her voice repeatedly to the court. In one such incident, Calabresi noted “Let me just indicate again, you are yelling on the record. This happens all the time when you don’t get your way. Because you lose something doesn’t mean you have to start yelling at me. I haven’t gotten deaf over the course of the time I have listened to your argument.”
Once again, these types of problems are usually handled short of a formal ethics charge. The disclosure of the confidential information and failure to convey offers are more serious, but once again I have seen such matters come up in court and be handled by the judge, sternly but without a formal charge.
The disclosure counts involved cases that Cesar would likely argue were clearly going to end in pleas since the facts were largely established. It does not make the disclosures proper, but she is likely to argue that she did not harm her client’s interests. Here is one such count:
(Revealing Confidential Information in the Gabriel Franco matter)
7. On May 17, 2011, the Chicago Police Department arrested Gabriel Franco (“Franco”) and charged him with retail theft, a Class A misdemeanor, for allegedly carrying six containers of Enfamil baby formula past the last point of sale at a Dominick’s store located at 2021 West Chicago Ave., Chicago, IL.
8. On May 18, 2011, Judge Calabrese appointed Respondent to represent defendant Franco in The People of the State of Illinois v. Gabriel Franco, 11-MC1-225627 in the Circuit Court of Cook County, Illinois, First Municipal District, Branch 29.
9. Before the May 18, 2011 hearing, Respondent and her client, Franco, had a conversation regarding the alleged offense and circumstances surrounding the offense.
10. On May 18, 2011, case number 11-MC1-225627 was called. At that time, the State requested a continuance in order to have the complaining witness in court. Judge Calabrese granted the State’s motion for a continuance and set the next hearing date to May 26, 2011 at 9:00 AM.
11. On May 18, 2011, before concluding the hearing, the court addressed the issue of probable cause to detain Franco. For purpose of setting bond, the State informed the court of Franco’s criminal history and that he had an outstanding warrant in Lake County, IL.
12. Respondent then stated the following:
MS. CESAR: Your Honor, he lives with his parents. And it is my understanding that there’s a warrant and it is for retail theft. Mr. Franco did tell me that he is not working right now and he was stealing formula for his eight-month-old child. I know that that is not a defense, but it certainly is a mitigator.
13. At the time Respondent made the statements in paragraph 12 above, Respondent knew that her client, Franco, had yet to enter a plea. Respondent’s statements in paragraph 12 above, revealed to the court that Franco did in fact commit the crime of retail theft by stealing the formula, and Respondent revealed Franco’s motive to commit the crime, to feed his eight-month old child. Respondent conceded facts that the State is required to, and has the burden to, prove beyond a reasonable doubt.
14. Respondent did not have consent from Franco to inform the court that Franco had stolen the formula or his motive for engaging in that conduct. Respondent knew or should have known that without Franco’s consent, Respondent should not have revealed information relating to the criminal charge of retail theft.
15. By reason of the conduct described above, Respondent has engaged in the following misconduct:
revealing information relating to the representation of a client without the client’s informed consent, in violation of Rule 1.6(a) of the Rules of Professional Conduct (2010);
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Rules of Professional Conduct (2010); and conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.
Conversely, this picture shows the perfect demeanor for a motion. This dog could literally ask for summary judgment before the filing of pleading and win.