May 2011 • Volume 99 • Number 5 • Page 222
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Are cell phones “contraband”? And what’s a “penal institution”?
A volunteer lawyer is charged with a felony for allegedly bringing "contraband" - her cell phone - into a police station interview room.
Volunteering to represent indigents pro bono in an area of law with which you're unfamiliar? Your heart may be in the right place, but be careful.
Shortly before this issue of the IBJ went to press, the media was reporting that an attorney employed by the Chicago Transit Authority had been charged under 720 ILCS 5/31A-1.1 with one count of bringing contraband into a penal institution, a Class 1 felony carrying a sentence of between four and 15 years. 730 ILCS 5/5-4.5-30. The lawyer had volunteered to represent a man who had been arrested for a parole violation and was being investigated in connection with a double murder, the Chicago Tribune reported.
The lawyer, who was volunteering through First Defense Legal Aid, an organization that provides pro bono lawyers to advise individuals in custody, met with him in an interview room in a police station on Chicago's south side. The Tribune said prosecutors alleged the lawyer had allowed the man to make calls using her cell phone.
The statute defines "item of contraband" to include electronic devices such as laptop computers and cellular phones. 720 ILCS 5/31A-1.1(c)(2)(xi). "Penal institution" means "any penitentiary, State farm, reformatory, prison, jail, house of correction, police detention area, halfway house or other institution or place for the incarceration or custody of persons" who are either under sentence or under arrest, provided that where the place for incarceration or custody is within another public building, the statute does not apply to the part of the building that is unrelated to the incarceration or custody of persons.
What's a "penal institution"?
First cautioning that he has no personal knowledge of the matter reported by the media, Chicago lawyer Robert A. Loeb says the reports suggest the truth of the adage "No good deed goes unpunished." Before volunteering to handle a matter, Loeb urges lawyers to be sure to secure adequate training in that area of the law.
Loeb takes some issue with the wording of the statute under which the lawyer was charged. That it applies to cell phones, he says, is clear under the subsection cited above. Not so clear is whether an interview room in a police station is a "penal institution" within the meaning of the statute, he says.
"It's not illegal to bring a cell phone into a police station. It would be illegal to bring a cell phone into the lockup of a police station."
Loeb notes that the statute expressly provides, in paragraph (b), for absolute liability, regardless of a person's intent in bringing a proscribed item into the penal institution. "The law looks very closely at an absolute liability crime where no mental state is involved. I don't know the facts of this case, but I would be inclined to argue that while ignorance of the law is no excuse, ignorance of whether a certain portion of a police station is considered a penal facility is very much in question. Whether or not the lawyer knew the man was under arrest may also be an issue."
What's so terrible about a lawyer allowing an arrestee to use her cell phone, anyway? Loeb explains that doing so holds the potential to compromise institutional security. An arrestee might call his friends to ask them to come bust him out, for example.
"It is the law that jail calls are subject to monitoring. Cell phones are not." Allowing an inmate or detainee to use a cell phone, Loeb says, is a way of circumventing the legally authorized monitoring, whether or not the cell phone's owner intended that result.
In Loeb's personal experience, police stations do not have signs warning visitors that cell phones are forbidden, nor do they have metal detectors for persons visiting detainees. Jails, on the other hand, do, and they prominently post such notices. The lesson for lawyers: be aware of this law, and don't rely on officers or other personnel to tell you what's permitted and what's not.
Loeb also cautions lawyers representing arrestees for the first time, "Don't assume that your client can explain away the charges and get him released. If they're in custody, you don't want them talking."
Remember, he says, "The bar of accountability is not lowered just because you're volunteering or doing something pro bono. I have seen instances where a civil lawyer who's a family friend shows up at the police station and the client confesses and gets convicted of a major crime as a result."
First Defense Legal Aid's website is at http://www.first-defense.org. The site has a volunteer form that lawyers may fill out and submit on line to indicate their availability for cases.