Tuesday, May 29, 2007

State’s Attorney Birkett’s Prosecutors: What did they know and do?

Jeff Berkowitz: In short, how did [prosecutor] Jane Radostits get to more than three times the legal limit for driving without any of her “prosecutor friends,” noticing the excessive consumption of alcohol by their colleague during the middle of the day?

Joe Birkett: “That book is not closed.”
DuPage County State's Attorney Joe Birkett, interviewed late Saturday night, May 26.
Think about it. Eight prosecutor colleagues (and a secretary) are at a restaurant for a few hours. One of them, supervisor A, drinks enough to have a blood alcohol content of three times the legal limit for driving. Another, supervisor B, drinks some and the others perhaps not at all. When they leave, nobody thinks it wise to make sure supervisor A does not drive. Could this be? Let’s take a look.
On Friday mid-day, May 11, 2007, eight DuPage County prosecutors from DuPage County State’s Attorney Joe Birkett’s office were in a restaurant [Kona Grill in Oak Brook], lunching on appetizers. Their offices and the courtroom in which they practice had been closed, due to a bomb threat, at about 9:30 am and they were told they probably could not return to their offices or the courthouse until about 12:30 pm. The eight prosecutors had been brought together at the restaurant, by Deputy Chief Jeffrey Kendall, at about noon, some a little later, some a little earlier. [See here].

At least four of the eight prosecutors were at the restaurant for at least three hours. One prosecutor was at the restaurant for only a short time. At least two of the eight were drinking that afternoon [publicly available information does not indicate whether the others were drinking]. One prosecutor, Jane Radostits, managed to drink enough to give her a blood alcohol content of 0.25, more than three times the legal limit for driving. Radostits was a co-deputy criminal chief in DuPage County State’s Attorney Joe Birkett’s office. According to media reports, Jeffrey Kendall, the other co-deputy criminal chief, was drinking but it is not known how much. [See here].

After being driven back to her county car-- along with two colleagues-- by Kendall in his county car, Radostits got behind the wheel of her car and ten minutes later she was dead, apparently as a result of her driving over the street dividing line, clipping a car coming from the other direction, veering into traffic coming at her from the opposite direction, and then hitting another car head on.

According to media reports of the Sheriff’s report, Radostits was traveling at 81 to 85 mph in a 45 mph zone, not wearing a seat belt and likely using a cell phone when the wreck occurred. Co-Deputy Chief Radostits had a blood alcohol level of 0.25, more than three times the legal limit for driving. The driver of the car Radostits hit suffered a broken arm and leg, and underwent surgery. [See here].

Now, it would be reasonable to assume most ot the prosecutors at the restaurant know something about DUIs and how many, or how few, drinks it takes to become a dangerous drunken driver.

Radostits, herself, had prosecuted, a decade ago, someone for killing four people while driving with a blood alcohol level of 0.14 [See here]. The defendant drunk driver in that case received a sentence of 13 years.

The well-known saying is, “Friends don’t let friends drive drunk.”

Does that adage hold, even more so for prosecutors, especially those who deal with DUIs, from time to time?

And, if so, what did any of Radostits’ colleagues know about how much she drank on that Friday afternoon? Some of them told investigators they thought she drank “at least three lemon martinis,” and possibly one Lite beer. Kendall thought it was three or four martinis and possibly a Lite beer. They did not notice “a slurred speech or difficulty walking.”

Did any of the prosecutors think, at the time, Radostits might have had more than five drinks? At least three of her colleagues were with her at the restaurant for three hours. Did any take note of what might be viewed as excessive drinking? Can four martinis and a beer get a female of normal height/weight/metabolism to 0.25 in three hours? If not, how did Radostits drink more and yet none of her prosecutor colleagues saw it?

Kendall paid the bill by collecting money from everybody and putting the charge on his credit card. Did Kendall, during the course of that transaction, take note perhaps of the number of drinks for which he was paying? If nobody else was drinking except Kendall and Radostits, and if Kendall had not been drinking much, one would imagine Kendall could figure out how much Radostits had to drink. Was it more than four martinis and a beer?

If Kendall made that calculation and it was much more than was safe to drive, did Kendall try to stop Radostits from getting behind the wheel of her car? If not, should he have? What about Radostits’ other “friends.”

In short, how did Radostits get to three times the legal limit for driving without any of her “prosecutor friends,” noticing the excessive consumption of alcohol by their colleague during the middle of the day?

This reporter asked that question to State’s Attorney Birkett this weekend and he said, “That book is not closed.”

On the other hand, Birkett would not answer the question of whether he had asked Kendall to resign, saying that was a personnel matter which he would not discuss. Although the public reports had been that Kendall was now on vacation and that his resignation was not effective until June 4, 2007, Birkett said, “He resigned a week ago and he is out of here.” Birkett’s tone was not that of a boss who was sad to see Kendall go, notwithstanding the strong skills and dedication to the office for which Kendall is known. Another source close to the DuPage County State’s Attorney office confirms that impression.

As to whether there should be an independent investigation of the above-described matter, State’s Attorney Birkett said anyone could ask for the appointment of a Special Prosecutor. However, Birkett did not sound inclined to do so. Birkett pointed out that although friends should not let friends drive drunk, there is no legal obligation to take such action. So, which potential violations of laws would be investigated, he asked.

This reporter noted that it appears that, for some of the time, some of the prosecutors may have been drinking on county time. That is, if they were given “the rest of the day off,” that action may have come after the drinking started. Birkett acknowledged that the phone records could be checked to follow up on that. Further, although it apparently is not in dispute, there is the matter of county cars being driven by county employees who had been drinking, and how and why that happened.

But, more importantly, there is the matter of determining what is the ethical obligation of DuPage County prosecutors in these circumstances. That is, prosecutors presumably are obligated to act in such a way as to protect the integrity of the DuPage County State’s Attorney office. First, there is the matter of is it ever wise and ethical for prosecutors to drink three times the legal limit for driving. Second, what is the obligation, if any, of prosecutors to prevent their colleagues from doing so? Third, even if there is not such an obligation regarding consumption of alcohol, what is a prosecutor’s obligation to prevent another prosecutor from driving after excessive drinking?

Birkett has said, other than Ratostits and Kendall, nobody from his office who was at the restaurant was a supervisor and nobody had a county car. However, maybe the relevant questions are much broader in scope and maybe these questions, as to the May 11, 2007, matter need to be investigated by a special prosecutor:

1. Who was drinking on May 11 in mid-day?

2 Was that done on DuPage County time?

3. Even if it was not done on county time, what level of alcohol consumption in public should be tolerated by the State's Attorney office?

4. Who knew or should have known that Radostits had been drinking enough to be well over the legal limit for driving?

5. Which of those individuals, with knowledge or constructive knowledge of the drinking by Radostits, had an ethical obligation to try to stop Radostits from driving: for the public safety, for Radostits' safety and to protect the integrity of the office of the DuPage County State's Attorney? [see here].
Jeff Berkowitz, Show Host/Producer of "Public Affairs," and Executive Legal Recruiter doing legal search can be reached at JBCG@aol.com. You may watch "Public Affairs," shows with Presidential Candidates Obama, McCain, Giuliani and Cox and many other pols at www.PublicAffairsTv.com