Daily Archives: January 25, 2005

“The Untouchables”

From the "Double Standards" department, this news item from the Chicago Daily Herald (January 19, 2005):

DuPage County State’s Attorney Joseph Birkett is tough on drunken drivers. On that, prosecutors, defense attorneys and advocates against drunk driving all agree. When Cook County gang crimes prosecutor Joseph E. Keating, 43, was arrested in July and charged with DUI after knocking over a light pole on an I-55 ramp, he managed to get the charge dropped at his first court appearance.

The reason, prosecutors said, was not that Keating was a prosecutor himself, but that the case was weak. That’s because Keating refused all sobriety tests, including a Breathalyzer, and police failed to activate the audio portion of the videotape of the arrest…. Keating won’t talk about the arrest.

Birkett says the case was not winnable without Breathalyzer results or conclusive evidence from the scene. Keating notified his bosses in Cook County of the arrest and was put on desk duty while his case was pending, according to Marci Jensen, a spokeswoman for Cook County State’s Attorney Richard Devine. He was reinstated to the courtroom when the DUI charge was dropped Aug. 13, she said.

Asked if the fact that a prosecutor refused drunken driving tests bothered the office, Jensen replied that Keating was entitled to the same options as any other driver…. Birkett acknowledged that dropped DUI charges, while rare in DuPage are not unheard of ‘ ‘probably between 6 and 10 percent,’ he said.

The DuPage County prosecutor’s office handles thousands of DUI cases a year. A Daily Herald review of 20 of them brought in DuPage County at the same time as the Keating case found that Keating’s DUI charge was the only one the office dropped.

Birkett has made a reputation for himself and earned the admiration of advocates against drunken driving for being tough with DUIs, sometimes even prosecuting cases with weak evidence, defense attorneys say. At least one veteran defense attorney, whose office handles about 50 DUIs a year, says he’s never seen the DuPage office drop a DUI case. Even if a case is weak, Des Plaines attorney Michael R. Epton said he’s seen DuPage prosecutors leave it to a judge to throw it out.

By office policy, front-line prosecutors cannot, of their own volition, drop or reduce a DUI charge, Birkett said. They must seek approval from a supervisor first. The same policy operates in Cook County, Jensen said. Birkett said the Keating case never reached his desk, but it did go up the chain of command through at least three supervisors. He said he supports their decision.