In a double-barreled attack, a federal judge has blasted police and prosecutors for blocking defense attorneys from talking to "witnesses" hauled in for questioning in criminal investigations.
U.S. District Judge Milton I. Shadur mocked assertions that everyone who is interrogated by Chicago police but not formally taken into custody "is studiously informed of his or her freedom to leave."
The real world in which attorneys for those people live and work "gives the lie to that sanitized ideal", Shadur wrote in a 13-page opinion made public Monday.
Shadur's opinion was not a final judgment in a lawsuit brought by lawyers who claim police and prosecutors are violating their First Amendment rights by denying them access to their clients.
But the take0no-prisoners attitude Shadur displayed in declining to dismiss the First Amendment claim left no doubt that the judge believed the plaintiff- lawyers have made a case.
Shadur also made it clear he didn't think much of the defense mounted by counsel representing Cook County State's Attorney Richard A. Devine and top officials in the Chicago Police Department.
The reality of what really happens when individuals are taken to the station for questioning by police and prosecutors is far from the picture painted by those officials, according to Shadur.
"Instead the 'witnesses' whom the p[police interrogate remain incommunicado in locked interrogation rooms (and sometimes in handcuffs) for extended periods, all the while being told that they dont need lawyers (sometimes coupled with the police withholding from them the fact that lawyers have in fact appeared and are there to see them)," Shadur said. "Do defense counsel contend with a straight face that someone whose interrogation took place over a period of 78 hours (as testified to by on of the plaintiffs without contradiction) had really been given to understand during that protracted period that he was free to leave at any time?"
Shadur said things weren't much better outside the interrogation room.
"Meanwhile the lawyers who appear at the police station to see their clients are expressly refused - are actually barred from - such access on the stated basis that such clients are just witnesses in an investigation," Shadur said.
Shadur said the counsel defending the City of Chicago and the individuals named as defendants were "unabashed" by the fact that refusal to allow attorneys to see their clients "regularly involves nondisclosure to the clients of their lawyers' presence."
"And the nature of that refusal is exacerbated by the facts that it is often accomplished via affirmative deception on that score, and that State's Attorney Devine's assistants have on occasion misrepresented the state of the law as the basis for instructing the police to bar plaintiffs access to their clients (just as his assistants handling this litigation have mischaracterized the state of the law before this court)," Shadur said.
Shadur rejected the notion that it was Devine and other law enforcement officials - not the lawyers who allege that their constitutional right to associate with clients has been violated - who have an accurate take on the situation.
"This court is disinclined to believe in the tooth fairy - to ignore the obvious reality that the climate in which plaintiffs seek to carry out their responsibilities to their clients, as they contend the First Amendment entitles them to do, is not as defendants would portray it," Shadur said.
Instead, Shadur said, evidence showed that refusing lawyers access to people purportedly considered to be witnesses amounts to "a deliberately adopted and enforced policy."
But while denying defense motions to dismiss the First Amendment claim, Shadur also declined to issue a temporary restraining order sought by the plaintiffs.
At a status hearing Tuesday, Shadur explained the latter decision was prompted in part by his intention to rule as soon as possible on the question of the protection - if any - that the First Amendment provides lawyers who represent people being questioned by police.
The suit, files by the nonprofit group First Defense Legal Aid, seeks injunctive relief in the way police and assistant state's attorneys deal with First Defense lawyers.
The lawyers - in allegations that Shadur in his opinion said had been borne out in large part - claim authorities use such tactics as refusing to reveal witnesses' whereabouts, making lawyers wait hours to see their clients and insisting that police officers be present when lawyers finally manage to connect with their clients.
Other methods employed by authorities include pressuring individuals to drop their lawyers, continuing interrogation even after the individual has invoked his right to remain silent and occasionally misrepresenting the role of assistant state's attorneys by identifying them as "the people's lawyer," the suit alleges.
In his opinion, Shadur noted that the plaintiffs had narrowed the suit's scope by dropping some counts.
"But while plaintiffs' lawyers have thus demonstrated their capacity to be educable, regrettably defense counsel have not," Shadur said.
For example, Shadur said, defense counsel persisted in arguing that if "witnesses" blocked from talking to their lawyers had no claim under the Fifth or Sixth Amendment , then the lawyers had no claim under the First.
"Just which one or more law schools has or have failed in their educational task by enabling their graduates to emerge with such a bizarre understanding (more precisely, a lack of understanding) of the Constitution is unclear - but if any law school does exist, it might have been expected that the graduates' ongoing practice of law and their broad hope-for reading of cases would have dispelled such a fundamental misconception," Shadur said.
Ina footnote to that sentence, Shadur rejected any notion that it was too much to expect such graduates to find case law showing them the error of their ways.
"It took this court's law clerk all of five minutes to locate an example of the obvious proposition that while a case may fail to state claim under two other provisions of the Bill of Rights (in that case the Fifth and Eighth Amendments), the case will still survive in terms of a First Amendment claim," Shadur said, citing Babcock v. White F.3d (7th Cir. 1996).
First Defense Legal Aid v. City of Chicago, et al., No. 01 C 9671.
Spokeswoman Jennifer Hoyle of the city's Law Department predicted Shadur's position will be reversed by higher court.
"The City of Chicago disagrees with Judge Shadur, and we believe that our position will be validated by the 7th U.S. Circuit Court of Appeals," Hoyle said.
Spokesman John Gorman of the State's attorney's office also expressed disappointment with Shadur's opinion.
"While Judge Shadur's intellect and his proficiency in displaying it are well known in legal circles, his condensation in dealing with the attorneys in this case is regrettable," Gorman said. "We should hope that the judge will follow the law closely in this important case without further gratuitous attacks on the intelligence, education or diligence of the attorneys involved."