We have the makings of a trend: inappropriate contacts between participants in jury trials. These contacts can be problematic because a jury trial constitutes a delicate ecosystem, in which contacts and communications between actors are regulated strictly to ensure the fairness of the proceedings.
We recently mentioned a case where a juror got sentenced to community service after trying to friend the defendant on Facebook. Well, at least he didn’t try to “poke” her (although perhaps a desire to poke her is what prompted the problematic friend request).
Now we bring you news of, er, more intimate contact between a witness and a lawyer — which culminated in a mistrial….
UPDATE (11:00 AM): Photo of massage therapist Liudmyla Ksenych, a petite and pretty brunette, added after the jump.
Meet Illinois attorney Douglas Rathe. He’s a veteran litigator, admitted to practice in Illinois since 1975. After graduating from Loyola Law (Chicago), he served as a prosecutor for many years, first as a Cook County Assistant State’s Attorney and then as an Illinois Assistant Attorney General. He has been in private practice since 2003, where he has represented indigent federal defendants as part of the Federal Defender Program. (You can check out his bio over at Wilmette-Kenilworth Patch, which ran it as part of a series of spring 2011 candidate profiles; Rathe ran for Wilmette village trustee.)
Over his many years as a prosecutor and defense lawyer, Rathe has surely seen a lot. But he’s probably never found himself in the situation that was recently reported on by the Chicago Sun-Times:
A federal trial of a man accused of exploiting illegal immigrant women by having them work in his massage parlors came to an unusual end last week when a masseuse testifying on the witness stand recognized the man’s defense lawyer — as a client. U.S. District Court Judge Robert Gettleman declared a mistrial….
But Ukrainian immigrant Liudmyla “Liuda” Ksenych never had a chance to say more than “I worked as a massage therapist” last Monday before court was adjourned. After she got off the witness stand, she told prosecutors she recognized Campbell’s court-appointed attorney, Douglas Rathe, as her client.
Yikes. What was the nature of the relationship between Liudmyla Ksenych and Douglas Rathe?
In a court hearing the following day, Rathe admitted to Gettleman that “I got too friendly with Liuda,” a transcript reads. “I mean in the sense I liked her a lot. She was a nice person. And I gave her a bottle of perfume. Stupid thing to do when you are married, but I did it. … I met her at least four times. … But I did send — we did exchange e-mails.”
But there was no sex, said Rathe, a private attorney.
“It was a massage — that was all it was,” Rathe told the Sun-Times Monday. “What happened was embarrassing — there was no doubt about it. [But] I did nothing illegal or nothing that was considered improper. This was a very unusual circumstance.”
In light of the apparent lack of a “happy ending” — we’re assuming there wasn’t, based on Rathe’s claim of “no sex” and “nothing that was considered improper” — was a mistrial truly necessary? The prosecution argued it was not:
In the hearing, Assistant U.S. Attorney Diane MacArthur told Gettleman, “There is no indication from Liuda and we have no evidence to indicate that Mr. Rathe asked for ‘extras’ through his requests of Liuda during the massage services, … which would be an illegal act at least under local or state law. There is no specter in this case of potential prosecution” of Rathe….
The prosecutors and the judge both praised the job Rathe had been doing on the case, saying he aggressively questioned the government witnesses through five days of testimony and they encouraged Campbell to keep him as his attorney. The government offered to withdraw Ksenych as a witness so the trial could proceed.
But Campbell, who had been seeking a mistrial anyway, insisted that Rathe had broken his trust by concealing from him that he had been a client at one of Campbell’s massage parlors. Gettlemen felt obliged to declare a mistrial last Tuesday and schedule a new trial with a new lawyer for January. Campbell will remain in custody.
It’s not surprising that Judge Gettleman declared a mistrial — it’s the careful thing to do. And Judge Gettleman, one of the most well-regarded members of the distinguished Northern District of Illinois bench, is a smart and prudent judge.
(I had the honor of interviewing Judge Gettleman back in 2004, for Underneath Their Robes. It’s a great interview, due to Judge Gettleman’s insightful and witty responses to my questions; check it out here.)
Seeking a mistrial strikes me as a poor decision on the part of defendant Alex Campbell. Perhaps he sees a mistrial as a victory of sorts, but it really isn’t. He will be tried again in January, based on what will probably be a very similar record, quite possibly defended by a lawyer less experienced than Douglas Rathe. And Campbell is stuck in jail between now and then.
One question that came to my mind: Why wasn’t the connection between Liudmyla Ksenych and Doug Rathe discovered prior to trial? Alas, as noted by the ABA Journal, “Rathe didn’t recognize Ksenych’s name on the witness list because she did not use her real name on the job.”
Practice pointer: keep an eye out for non-obvious connections, when reviewing witness lists or conducting voir dire. In criminal cases, it’s quite common for defendants and witnesses to use pseudonyms or nicknames.
Random tidbit: Ksenych — who immigrated to the United States from the Ukraine five years ago, at age 20 — has a degree in… wait for it… yes, law.
Career alternatives for attorneys: massage therapist? That’s one way of rubbing out student debt.
The story of this mistrial is bizarre and funny, but also sad and unfortunate. The allegations against Campbell — that he “preyed on immigrant women, [by] locking them in apartments, confiscating their passports, driving them to work in the massage parlors, and demanding huge sums of money from them or threatening them with deportation” — are serious. And it is deeply regrettable to see a mistrial declared after five days of testimony. Think of all the hours of hard work — by the lawyers, jurors, and Judge Gettleman — that are getting flushed down the drain.
“I feel sorry for the guy,” said one of our readers, a longtime litigator from Chicago, of Douglas Rathe. Rathe’s connection with the masseuse “apparently really didn’t have anything to do with the case, and he was doing a good job for his client, according to the judge.”
This is one jury trial with a not-so-happy ending.
Massage parlor owner’s trial ends abruptly when masseuse recognizes lawyer as client
Attorney’s connection to masseuse leads to mistrial [Chicago Tribune]
Massage Parlor Mistrial Declared After Masseuse Recognizes Defense Lawyer as Client
Defense Attorney Outed as Habitue of Client’s Massage Parlor [Chicagoist]
Meet Your Candidates: Village Trustee Hopeful Doug Rathe [Wilmette-Kenilworth Patch]