By Leonard Goodman. Published in “Illinois Lawyer Now”, Spring 2013 edition.
In March of 2011, the Cook County State’s Attorney’s Office sent shock waves through the Chicago criminal defense bar when it indicted Attorney Sladjana Vuckovic for doing something many criminal defense lawyers have done – bringing a cell phone into a police station interview room.
At the time of her alleged crime, Ms. Vuckovic was doing what many lawyers do: representing people who cannot afford legal counsel. She was a volunteer with First Defense Legal Aid, a not for-profit organization that provides lawyers for indigent people at Chicagoland police stations. Its mission is to “protect civil rights by offering free 24-hour legal representation and advice to any individual taken into Chicago Police Department custody.” It provides a toll-free hotline to call when a family member or friend is taken into police custody. A volunteer lawyer is assigned, who determines where the personis being held and whether the matter is serious enough to require a station visit. If the lawyer learns that the person is under investigation for a serious felony and has not yet been charged, the lawyer goes to the police station, visits the client, and provides advice about his/her legal rights.
A licensed attorney since 1995, Ms. Vuckovic worked mostly in the area of civil litigation. In 2010, she was employed by the Chicago Transit Authority, representing bus and rail operators in tort suits. But once a month for more than a decade she also volunteered for First Defense, spending dozens of Saturday nights and often Sundays at area police headquarters visiting indigent clients held by police as suspects in serious crimes.
Ms. Vuckovic’s career as a First Defense volunteer and licensed Illinois attorney nearly ended as a result of occurrences on a weekend in November 2010. Her Saturday night shift for First Defense began at 6 pm. At 7, a man called the hotline; his 19-year-old brother had been arrested and taken into custody by Chicago police for questioning regarding the slayings of two police officers. The call was transferred to Ms. Vuckovic, who learned that the person she was asked to represent was being held at Area Two South police headquarters on East 111th Street. According to her contemporaneous Activity Log, Ms. Vuckovic arrived at Area Two shortly after 8 pm. A detective escorted her upstairs to the area headquarters, unlocked the room where she met her client, whose right wrist was shackled to a ring on the wall. The detective switched offmthe video monitoring equipment — Illinois law required the police to record their interrogation of suspects in all murder investigations – and left Ms. Vuckovic and the client alone in the room. As was her custom, Ms. Vuckovic carried a shoulder bag containing her First Defense notebook, pens, wallet and cell phone. The detective did not object to Ms. Vuckovic bringing in her bag, nor did he inspect its contents. There were no signs or oral warnings given to Ms. Vuckovic to inform her that she was not allowed to have her cell phone during the interview, or that bringing a phone into the room was a felony. There was a sign posted in the room advising, as required by Illinois law, that: “Persons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or in any other reasonable manner.”
During the hour-long visit, Ms. Vuckovic told the client that his brother had called the First Defense hotline, and she was assigned to be his lawyer until he was released from custody, or until he was formally charged with a crime, which usually occurs within 48 hours from the time of arrest. She explained that if and when he was charged, she would no longer act as his lawyer; instead, he would be taken to court and a public defender would be appointed to represent him in her place. In the meantime, he had a constitutional right to have her present during police questioning, and that if the police sought to question him during the next 48 hours, he should tell them to contact her before they began.
Ms. Vuckovic allowed her client to use her cell phone to make several calls in her presence to his family and friends, to let them know where he was, that a lawyer was with him, and that he was in good health. She instructed him not to talk about the case during these calls, and he complied with her admonition. Phone records and trial testimony reflect that although a number of calls were attempted, most did not go through or were not accepted. At the end of the visit, Ms. Vuckovic put her cell phone back into her bag, promised to return the next day (Sunday), and said that if in the meantime he was charged with a crime, she would inform his family where they could see him at the bond court.
The next morning, Ms. Vuckovic called Area Two and was told that her client was still there and had not been charged. At 1 p.m., she returned to the station. A police video shows her entering the interrogation room with her shoulder bag and a bag containing food she had purchased. A detective unshackled the client, and then left them alone in the room. As before, she was not told she was not allowed to bring her cell phone into the room. She again allowed her client to use her phone to talk to family and friends, first repeating her instruction not to talk about the case.
About 2 p.m., a police sergeant entered while the client was using the phone, and said to Ms. Vuckovic: “You know you’re not supposed to let him use the phone;” Ms. Vuckovic replied that she was not aware of any such prohibition. He did not say she was not allowed to bring the phone into the room; rather, he told the client to stop using the phone, whereupon the client returned the phone to Ms. Vuckovic. The sergeant instructed her to leave the police station. Sheput the phone back into her bag and left the room and the station. Later that day, she wrote in her FDLA Activity Log: “[Got] kicked out at 2 p.m. Sergeant[name] upset I have been allowing the client to use my cell phone.”
Ms. Vuckovic had no further contact with the young man, because on Monday he was charged with two homicides, and on Tuesday he was taken to bond court where a Cook County Public Defender was appointed to represent him. That same day, while she was at work, three police detectives served her with a search warrant for her cell phone as potential evidence in connection with the murder investigation; she readily gave the cell phone to them. Three months later, in March 2011, Ms. Vuckovic learned she was to be charged with a Class One felony, and face up to 15 years in prison and potential disbarment for bringing her cell phone into the room at the station.
On March 24, 2011, Ms. Vuckovic was indicted for the crime of Bringing Contraband into a Penal Institution, in violation of 5/31A-1.1(a)(1), the cell phone allegedly being the contraband, and the interrogation room the penal institution. The prosecutors relied upon a 1997 amendment to the Illinois statute which expanded the definitions of “Contraband” to include cellular phones, and “Penal Institution” to include a “police detention area…for the incarceration or custody of persons…underarrest for an offense.” 720 ILCS 5/31A-1.1(c)(1) and (c)(2)(xi). Ms. Vuckovic voluntarily “surrendered” at the State’s Attorney office, where she was handcuffed, fingerprinted, processed, and then released on bail.
This indictment of Ms. Vuckovic was the first of its kind in the nation – no other lawyer had ever been prosecuted for bringing a cell phone into a room in a police station to meet with a client who was in custody but not charged with a crime. She pleaded not guilty, and demanded trial by jury. The case went to trial in November 2012 at the Leighton felony court building on Chicago’s west side. As reported in the Chicago Tribune, the “unusual nature of the charge [drew] a curious audience of defense attorneys, prosecutors and judges, who packed Judge Evelyn Clay’s courtroom.” Although the charge related solely to Ms. Vuckovic’s bringing a phone into the room when she met with her client, the prosecutors repeatedly invited the jury to speculate that the client’s calls were used to obstruct justice in the murder investigation. Beginning in opening statement, the prosecutor said, “The police will never know who [the defendant] was talking to or what was being said” or “how he was using that phone to advance his own case.” In fact, the police had interviewed each recipient of the client’s phone calls, and were well aware that the phone was used only as Ms. Vuckovic had directed — to reach out to friends and relatives, and not to discuss or advance his case.
The prosecutors called as witnesses the two detectives who accompanied Ms. Vuckovic to the room at Area Two. Both admitted they did not caution her about having a phone, that they did not examine the contents of her bag, and that no signs were posted warning against possession of phones in the room. The detectives and a lieutenant commander of Area Two violent crimes all testified that when Ms. Vuckovic was asked to leave, she was not arrested, and she was allowed to leave with the phone. This testimony gave rise to the inference that none of them believed – as the State’s Attorney belatedly contended in the indictment several months later – that her bringing the cell phone into the room constituted a crime, or that the phone was “contraband” and therefore subject under Illinois law to immediate seizure by the police. Testifying in her own defense, Ms. Vuckovic said she did not realize it was against Illinois law to have a cell phone when meeting in police stations with uncharged clients referred by First Defense, and that she had no intention of obstructing the police investigation. She said she had made “more than a hundred”client visits at Chicagoland police stations with her cell phone in her bag, and never had she been told by any police officer that she was not allowed to bring a cell phone with her during client interviews.
Two former top ranking law enforcement officials testified as expert witnesses on Ms. Vuckovic’s behalf. Thomas P. Sullivan, who had served as United States Attorney in Chicago, and Richard J. Brzeczak, who had been Superintendent of the Chicago Police Department, testified that until contacted about Ms. Vuckovic’s case, they were not aware that the Illinois statute had been amended to include cell phones within the definition of “contraband,” or that the definition of “penal institution” had been expanded to include a “place for incarceration or custody [of a person] under arrest for an offense.” Mr. Brzeczak agreed that an interrogation room could be considered a “place for custody,” but so could a squad car, or even a sidewalk on which an arrested person is temporarily detained. Mr. Sullivan testified that, in his opinion, when a room in a police station “is used by a lawyer to … interview the client, … it is not a place of detention… it is an interview room.” During cross examination, Mr. Sullivan emphasized a basic principle of constitutional law that the State cannot criminalize “honest mistakes, because of lack of knowledge of what the law is. The Supreme Court of the United States long ago says you can’t make that a crime and waste time when we’ve got real crime going on out in the streets.” He added that several years earlier, he went to the Evanston, Illinois police station to represent a young client who was held in police custody, took a cell phone into the room where the client was being held, and permitted him to use it to call his mother.
The jury quickly acquitted Ms. Vuckovic. One juror told the Tribune that “the consensus on the panel was that prosecutors failed to prove Ms. Vuckovic knew she was not allowed to bring a cell phone into the police interrogation room with her.”
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Leonard C. Goodman represented Ms. Vuckovic in this case.
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