Getting to Know Criminal Defense Clients in Trying Circumstances
by Mike Ramsey
This article originally appeared in Leading Lawyers Magazine—Consumer Edition for 2016 and has been reprinted with permission. © 2016 Law Bulletin Publishing Co
Criminal defense lawyer Todd S. Pugh gets the types of cocktail-party questions you might expect.
“How can you defend those people? What if they actually did it?”
“Most people understand it’s a profession,” Pugh, partner at Breen & Pugh Attorneys at Law, says. “But just because they don’t feel they could do it, they understand that somebody has to do it. A criminal defense attorney is like an oncologist: You’re a professional that nobody really wants to meet. But if a need arises, you’re glad we’re there.”
In a career spanning two decades so far, the 47-year-old has represented people from all walks of life as well as businesses and even a political campaign fund in a wide range of cases covering murder to racketeering conspiracy.
“Most criminal cases are not whodunits,” Pugh says. “They’re ‘who-done-whats’ and whether or not it’s a crime. And, if it was a crime, what crime was it?’”
Sometimes his clients did nothing wrong. His early legal experience included helping to defend two men who had
been sentenced to death. Their eventual mexonerations demonstrated to Pugh the need for driven criminal defense attorneys.
“Because absent that, both those guys are dead,” he says.
Early Interest in Defense
The son of an accountant father and a mother who taught high school math and science, Pugh was born in Pittsburgh but
spent most of his formative years in Delray Beach, Fla. Not surprisingly, his parents put a premium on higher education, but it was his own curiosity that sent him on the path to law school.
“By high school, I had a made a pretty big decision that I wanted to be a criminal defense attorney. I always had a lot of
interest in it, following cases and reading about Clarence Darrow,” he says.
While studying political science and philosophy at Florida Atlantic University in Boca Raton, Pugh did an externship with the Palm Beach County Public Defender’s Offi ce, working with a death-penalty mitigation specialist.
“I liked delving into the client — not just investigating the case itself, but really getting to know the client and getting to know their history,” Pugh says.
In 1994, he enrolled at DePaul University College of Law. Because of his interest in criminal law, one of his instructors introduced him to Northwestern University’s Lawrence Marshall, who then ran the precursor to the Center on Wrongful Convictions. Pugh’s paid position as a law clerk was an eye-opening entrée into highstakes post-conviction work.
He assisted Marshall with the successful appeal of Illinois Death Row inmate Gary Gauger, a McHenry County man who had been convicted of the murders of his parents, partly based on a statement he had made to police during hours of
questioning. The appeals court reversed Gauger’s conviction, saying the statement should not have been used at trial. Two other suspects were later convicted in federal court of the killings.
Another condemned inmate, Rolando Cruz, had twice been convicted of the 1983 abduction-murder of 10-year-old Jeanine Nicarico of Naperville. Marshall coordinated the defense team that won Cruz an acquittal in the middle of his 1995 retrial. Incarcerated serial murderer Brian Dugan would later plead guilty to the notorious crime. Cruz, like Gauger, was pardoned in 2002.
“Todd’s early work basically shaped his life and his career,” says Cook County Assistant Public Defender Bill Wolf, a past president of the Illinois Association of Criminal Defense Lawyers, for which Pugh is president-elect. “He genuinely wants to create a better criminal justice system, not just for the criminal defense bar, but for all of us.”
A Lasting Partnership
The Cruz case also marked the beginning of Pugh’s professional relationship with Tom Breen, who led the successful defense.
The veteran criminal defense lawyer recalls their odd-couple fi rst meeting 20 years ago: “Todd was in shorts, a T-shirt and had an earring in each ear and long hair. I said to myself, ‘Why did this professor send this guy over to me?’ Once I got by my prejudices, we had an instant connection — very, very instant.”
Breen adds: “I learned that even though I had years of experience at that time, there were certain things that he brought that I did not have. He has an almost photographic memory. He is the quickest study I’ve ever worked with, he picks up stuff so fast.”
For his part, Pugh was impressed with the way Breen interacted with clients and empathized with them. The younger lawyer says he, too, tends to develop a bond with the people he is defending, as well as their family members.
“It’s much more emotionally taxing to do it the way I do it, because in my business, bad things do happen,” Pugh says. “Some of the best referrals I’ve gotten over the years have been from clients I’ve represented — that we’ve both represented, actually — who are doing long sentences, who have said, ‘Despite the fact that I’m serving 10 or 20 years, I can’t speak more highly of my attorneys.’ Those are interesting referrals to get. Usually, you think, you lose the case, the client hates you.”
As he fi nished law school, Pugh did a stint as a summer associate at Jenner & Block, working on pro bono defenses.
Upon graduating DePaul, he joined Breen as an associate in 1997, when the fi rm was known as Martin Breen & Merrick. The two have become close, with Breen making Pugh a partner in 2006.
“He’s my best friend. I’m the godfather to his son. Tom and I are family,” Pugh says.
They have become known as a formidable legal duo of divergent personalities. Breen, with his booming voice and penchant for humor, defi nes the phrase “larger than life.” Just about anyone, including the quieter, methodical Pugh, looks reserved by comparison. When the two work on criminal trials together, Pugh typically handles opening statements while Breen does closing arguments.
“Tom is wonderful at closing arguments. He’s much more of an emotional lawyer than I am. I tend to be like a storyteller, and opening statements are stories,” Pugh says. “He’s a hammer. I tend to be a little more of a scalpel.”
“He’s the best sneak-attacker you’ll see in a courtroom,” Breen says of Pugh. “People underrate him because he is low-profi le in a courtroom. But when he’s talking about the law or the facts, if you’re not listening to him then you’re missing something because he really knows his stuff.”
Not All Cases Are ‘Winners’
Pugh’s fi rst jury trial, in 1997, represented one of his biggest defeats, at least initially.
Nurse’s aide Donna Gist was accused of fatally injuring an infant in her care. A DuPage County jury convicted her of murder, and she received a life sentence, later reduced to 50 years. Pugh says he was “absolutely certain” of Gist’s innocence and worked on her appeal for free, challenging prosecution evidence that had been allowed in court.
In a rare move, state appellate judges reversed the jury’s verdict outright in 2000, and Gist was freed. The case demonstrates the importance of setting a proper foundation at trial, “not just to win the trial, but to make sure that you were making the appropriate record,” Pugh says.
Such clear-cut legal victories are not the norm. A successful criminal defense often is more oblique, Pugh says.
The trial of George Thompson is probably a good example. The South Holland man was charged with murder in the 2003 death of former Time magazine writer Julie Grace. The two relapsing alcoholics were living at Grace’s North Side residence when she sustained a head injury, grew increasingly ill over a few days and died. Thompson called 9-1-1 and was taken into police custody.
During a 2006 bench trial in Cook County Circuit Court, Pugh and Breen presented a defense that suggested, in part,
Grace accidentally hit her head while the couple fought and did not recognize the seriousness of her condition. Following her injury, she was able to make a grocery order over the phone, according to testimony.
A judge convicted Thompson of the lesser charge of involuntary manslaughter and sentenced him to seven years, five months in prison. Grace’s family members and advocates for domestic-violence victims criticized what they considered a lenient outcome for the defendant.
Pugh expresses sorrow for the circumstances of Grace’s death, but says, “It was not a fi rst-degree murder case.”
“Things are not black and white all the time, they’re just not,” Breen adds. “There’s a lot of gray. And we’re fighting for our interpretation of the gray, while the prosecutors might be fighting for their interpretation of the gray.”
Also counting as victories, to Pugh, are circumstances in which an indicted defendant is able to plead to signifi cantly reduced charges for a considerably lighter sentence. This has happened for some of his clients in federal court, which has the reputation of being much tougher for criminal defendants — and criminal defense attorneys.
“If a (federal) case starts to go our way in the preparation phase of it, more than likely the government will make us an offer that we can’t refuse,” Pugh says. “Those are wins, in my book.” Former assistant U.S. attorney Tinos Diamantatos, who locked horns with Pugh on a number of cases at Chicago’s federal courthouse, does not disagree.
“Mitigating somebody’s exposure or risk is a huge role of a defense attorney, and Todd is great at that,” says Diamantatos, who today is of counsel at Morgan Lewis & Bockius LLP, working on the defense side of government actions and white-collar criminal cases.
“He knows how to pick his battles,” says Diamantatos. “He’s a gentleman with regard to how he carries himself with his adversaries. He’ll fight zealously for his clients where he needs to fight for them, and he’ll take prosecutors to task where it’s absolutely appropriate for him to do so. You can take his word to the bank when he represents something to you.”
Pugh says lawyers can be tenacious advocates for their clients while meeting high professional standards. He preaches that to law on a regular basis. Since 2013, he and Bob Loeb have teamed up to teach a course on pre-trial criminal defense litigation strategy at DePaul; Loeb was his instructor in that very course in the late-1990s.
The curriculum includes courtroom simulations that, given the talent and energy of the students involved, can get “spirited,” Pugh says.
“I really try to impress upon the students the ‘three Bs’ — be prepared, be creative, be courteous,” he says. “Bob and I believe that professionalism and civility in the practice of law are waning qualities. We both have made a point of instructing our students that while the ‘business of law’ is a reality, this has always been a profession fi rst. To that end, we expect our students to treat their classmates with integrity and respect, even in the heat of battle.”
Life Beyond the Courtroom
Breen & Pugh, a boutique law fi rm, has two associates, Jonathan Brayman and Robert Stanley. The group is based at Chicago’s historic Monadnock Building, the South Loop home to a number of noted criminal defense lawyers.
In Pugh’s personal offi ce, one wall is lined with framed newspaper clippings and courtroom sketches from significant cases, such as the 2003 corruption trial of former Gov. George Ryan’s political campaign fund (which preceded the prosecution of Ryan himself). Across the room is something a little more unusual: a mid-rise cabinet with a turntable and a growing collection of LPs. The vinyl is a mix of vintage albums and contemporary music offered in old-school analog.
Pugh says he likes having background music at work, listening to full albums and the “ritual” of having to get up from his desk to turn the LP over. His taste ranges from rock bands like the Rolling Stones and Pink Floyd to current-day fare in the vein of Wilco or The National, to jazz and blues.
“Don’t get me wrong. I still love my iPod,” Pugh says. “But all of a sudden I’m listening to tracks that I haven’t heard in 20 years. I’m like, ‘Wow, I forgot how great this track was,’ despite the fact that it was a track that never got radio play or the band never played it live. For me, when I bought the album 20, 25, 30 years ago, I really liked that song a lot.”
Outside work, Pugh makes his home in Chicago’s Bucktown neighborhood with his wife, Elizabeth Pugh, a fi nance administrator at the University of Illinois at Chicago, and their beloved dog Dakota, a Vizsla. His spouse shares his love of motorcycles, which have become a bigger part of his life in recent years.
Pugh was interested in the two-wheelers while growing up, but they took a back seat when he began pursuing his legal career. Then a retired police offi cer who did investigative work for the law fi rm began coming around on motorcycles.
“We all went and got Harleys, and we were riding around the country on them,” Pugh says.
Today, he has a Triumph, a Ducati and a passion for racing. Several times a year, he will go to a closed track and compete with other riders — and himself. The object is to improve his skill set and individual lap time.
“Todd’s the kind of guy who doesn’t do half of anything. He’s just full-boreon,” says John Scheff, owner of Chicago Motoworks in Pilsen, where Pugh bought his Ducati a few years ago. “If he’s doing something, he’s going to have the best equipment, he’s going to train with the best guys, he’s going to get up at 5 in the morning. He’s going to diet for it. There’s no ‘half’ in his program at all.”
Scheff notes that Pugh has done some good while having his fun. Through the Chicago Ducati Riders, the lawyer has organized rides that have raised funds for charitable organizations.
“It’s not like he’s doing this because he’s bored. He’s got plenty on his plate, personally and professionally,” Scheff says. “Todd just picks up the phone and dials for dollars and does a damn good job pulling corporate sponsors and donations.” Pugh is an avid bicyclist, too, and frequently puts in dozens of miles over a weekend the old-fashioned way — pushing pedals — often with colleagues. Bicycles, like motorcycles, help him escape his taxing work, however briefly.
“It’s one of the only times I get to turn off this job,” Pugh says.
There are no plans to turn off that job entirely. Pugh hopes to work with Breen for another 20 years.
His goal remains: getting his clients a fair shake in criminal court.
“Back to my oncologist analogy,” Pugh says. “Everybody who comes into this offi ce has cancer. And what they really want to be is a cancer survivor.
“Once you’ve been indicted for a crime, never in your life again do you get to be somebody who wasn’t indicted,
unfortunately. That’s just the way it is. Very few people get an apology upon acquittal.”