A Chicago lawyer was fined more than $68,000 because a witness he represented made comments in violation of a court order, which resulted in a mistrial.

During the 1980s, the investigation and takedown of the infamous El Rukn street gang made national news. In the decades since the initial arrests, there have been numerous trials, investigations, and lawsuits, some of which dealt with whether state and federal officials had unfairly stacked the deck against various defendants.

One such lawsuit was filed on February 22, 2010, in the U.S. District Court for the Northern District of Illinois by Nathson E. Fields, a former member of the gang, who was acquitted of the charges brought against him in 2009. Fields v. City of Chicago, 1:10-cv-01168 (N.D. Ill. Feb. 22, 2010). Fields had initially sued the city of Chicago, Cook County, several law enforcement officials, as well as several prosecutors. After extensive proceedings, a jury trial began with regard to the remaining defendants on March 10, 2014.

On March 18, 2014, a mistrial was granted on Fields's motion based on comments by witness David O'Callaghan that violated a court order not to address certain topics. Fields filed a motion for sanctions based on that violation.

After deferring its ruling on Fields's motion pending further proceedings, district court Judge Matthew Kennelly issued an order on the motion on November 6, 2015. The order awards $68,618 in attorney's fees and costs to Fields, payable by Terrence Burns, counsel for O'Callaghan. While some observers have commented that such a sanction seems heavy-handed, others note that stiff sanctions have been imposed by various courts for discovery violations.

Civil contempt

In his eight-page order, Judge Kennelly describes the events that led up to the 2014 mistrial. Prior to the beginning of trial, the court had issued several orders on motions in limine excluding evidence "regarding criminal conduct by and criminal prosecutions of members of the El Rukn street gang that did not involve Fields." Fields v. City of Chicago, 1:10-cv-01168, Dkt #892 (N.D. Ill. Nov. 6, 2015).The court also ordered counsel for all parties to fully advise their witnesses of any orders in limine that might affect their testimony.

Seven days into the trial, defendant O'Callaghan, while being questioned by his counsel, offered testimony on one of the barred topics. After removing the jury from the courtroom, Judge Kennelly questioned both O'Callaghan and his counsel about whether his orders had been followed. After lengthy discussion, the court declared a mistrial.

During briefing on Fields's motion for sanctions, both Burns and O'Callaghan submitted affidavits describing their trial preparation procedures. The court found that Burns did not "properly and sufficiently instruct" O'Callaghan about the court's orders in limine. Id. at 6.

In determining whether monetary sanctions would be awarded, the court found that no deliberate misconduct occurred. However, it did find that Burns had committed civil contempt by violating the court's order that directed counsel to instruct witnesses on the court's in limine rulings. Alternately, the court also determined that sanctions were proper pursuant to 28 U.S.C. § 1927.

'The trial court has discretion'

Professional Responsibility Professor Alberto Bernabe of The John Marshall Law School says that judges in other cases have imposed much higher sanctions for misconduct in the discovery process. Any critical evaluation of the $68,618 award would have to include "a number of factors, including the going market rate for trial work in the community."

Some commenters have opined that Burns is being unfairly held responsible for the conduct of his witnesses. (See the comment string to an ABA Journal article about the case at http://bit.ly/1klKVaM.) Bernabe disagrees, however, saying the attorney is being held responsible for what the court said was his own conduct in not preparing the witness properly. Attorneys have a duty to comply with a court's orders, he says.

Thomas McGarry of Hinshaw & Culbertson says that an attorney's duty of candor to the tribunal includes making sure that witnesses understand the limitations set by a court's orders. As for whether sanctions were proper, McGarry says that "intent is the determining question." Order and discipline in the court system is important and the "trial court has a lot of discretion to use its contempt power for things that occur in its presence."

To avoid sanctions, practitioners should have a system in place to ensure that witnesses are properly prepared. McGarry says that in the case of orders in limine, lawyers should be ready to show the witness the order, plainly discuss the topics that are off limits, and explain the consequences of violating the order. Doing so is a good way to avoid being blamed for a witness's improper statements.